PRE TRIAL CHAMBER 6

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					      Court
      Pénale
      Internationale
      International
      Criminal
      Court
                                                             !
!
!
      Original: English                  No.: 01/2009-
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      Team-2
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                                         Date: 15 January
@344)2009
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             PRE-TRIAL CHAMBER 5

         SITUATION IN THE )STATE OF ARISTA
      +$+0#&'(!01!,$*'(2!02!%*$!4$2$1)$!
                   IN THE CASE OF
           THE PROSECUTOR v. GENERAL ERIC
                       TORZOW
                                 #
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67&8)-./)4)
)        MEMORIAL ON BEHALF OF THE DEFENCE
      Court
      Pénale
      Internationale
      International
      Criminal
      Court
                                                             !
!
!
      Original: English                  No.: 01/2009-
!"#$#%&'())*%$'#+,)   )      )   )   )   -./()011234544)
      Team-2
67&8)4) )        )    )      )   )   )   9&:7();)<&%=&">?)
                                         Date: 15 January
@344)2009
)
             "#$!%#&'(!)*'+,$#!-!
        .&%/'%&01!&1!%*$!.%'%$!02!,#&.3!
    !"#$%&#'()&#*+#,-*)&'.$*-#/0#1*%"#&/(")#
             PRE-TRIAL CHAMBER 5

         SITUATION IN THE )STATE OF ARISTA
      +$+0#&'(!01!,$*'(2!02!%*$!4$2$1)$!
                   IN THE CASE OF
           THE PROSECUTOR v. GENERAL ERIC
                       TORZOW
                                 #
)
6,7)!AA#B7).A):,7)97A7%B7)
67&8)-./)4)
)        MEMORIAL ON BEHALF OF THE DEFENCE
TABLE OF CONTENTS………………………………………………………………………….3

TABLE OF ABBREVIATIONS………………………………………………………………….4

INDEX OF AUTHORITIES……………………………………………………………………...4

PRELIMINARY STATEMENT………………………………………………………………….7

STATEMENT OF FACTS……………………………………………………………………….7

ISSUES BEFORE THE COURT…………………………………………………………………8

JURISDICTION BEFORE THE COURT………………………………………………………..9

LAW AND ARGUMENT……………………………………………………………………….10

     I.       The ICC lacks the jurisdiction to prosecute John Evans in relation to the blockade of
              the Port of Gyst………………………………………………………………………10

     II.      If the Pre-Trial Chamber finds an act of aggression was committed the case is still not
              admissible in the ICC because of the principle of complementarity and the evidence
              fails to establish substantial grounds to believe that a crime of aggression was
              committed…………………………….…………………………….………………..14

     III.     John Evan’s human right to due process has been violated by the process of his arrest;
              Thus the Court should set aside jurisdiction and release the
              accused……………………………………………………………………………….23

     IV.      John Evan’s enjoys immunity under principles of customary international
              law……………………………………………………………………………………29

     V.       Victim participation should be extremely limited so not to infringe on John Evan’s
              due process rights to a speedy trial…………………..………………………………30


CONCLUSION………………………………………………………………………………..…32




                                            Abbreviations

R.          Record

¶           Paragraph


                                                   3
P.     Page

ICC    International Criminal Court

IMT    International Military Tribunal

ICTY International Criminal Tribunal for the former Yugoslavia

ICTR International Criminal Tribunal for Rwanda

ICCPR International Covenant on Civil and Political Rights

GA     General Assembly

UN     United Nations

Art.   Article

                                  Index of Authorities

Rome Statute

Article 1

Article 5

Article 8bis

Article 11

Article 14

Article 15bis

Article 19

Article 21

Article 25

Article 58

Article 59

Article 61


                                           4
Article 68

Article 89

ICC Rules of Evidence and Procedure

Rule 85

Rule 91

Princeton Principles of Universal Jurisdiction

Princeton Principles of Universal Jurisdiction 1(2)

Princeton Principles of Universal Jurisdiction 2(1)(4)

Charter of the United Nations

Article 2(4)

Article 51

Resolutions

Kampala 2010 Review Conference, Resolution No. 6 adopted 6/11/10

General Assembly Resolution 3314

Other Authorities

Goran Sluiter, !"#$%&''#()#'$*+$,-'$.'/0/(-12$3*$3"#$4(3#'(-3/*(-1$.'/0/(-1$.*&'3, 25 Loy.
L.A. Int’l & Comp. L. Rev. 605, 622. (2003).

Jeremy Rabkin, !"#$5*1/3/62$*+$3"#$7#(#8-$.*(8#(3/*(29$:/23&';/(<$=-6><'*&()$3*$3"#$4..$
:#;-3#,$44 Va. J. Int’l L. 169, 171 (2003).

Caroline L. Davidson, ?*$%"*'36&32$*($@&0-($A/<"329$B-/1$-()$3"#$4(3#'(-3/*(-1$.'/0/(-1$Trial,
60 Am. U.L. Rev. 1, 31 (2010).

M. Cherif Bassiouni, 5#'2C#63/8#2$*($4(3#'(-3/*(-1$.'/0/(-1$D&23/6#, 50 Va. J. Int'l L. 269, 316
(2010).

Bert Swart, E''#23$5'*6##)/(<2$/($3"#$.&23*)/-1$%3-3#, in 2 THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY 1247, 1251


                                                5
Case Law

F#<-1$.*(2#G&#(6#2$*+$3"#$.*(23'&63/*($*+$-$,-11$*($H66&C/#)$5-1#23/(/-($!#''/3*'I, Advisory
Opinion, I.C.J. Reports 2004
?/6-'-<&-$8J$K(/3#)$%3-3#2, 1986 I.C.J. 14 (1986)

K(/3#)$%3-3#2$8J$7*#'/(<, 6 F.D.R. 69 (1947)

5'*2#6&3*'$8J$:&2>*$!-)/6L$Case No. IT-94-1-A (7 May 1997)

5'*2#6&3*'$8J$7*'-($D#1/2/6, IT-95-10-T (14 December 1999)

5'*2#6&3*'$8J$D#-(M=*26*$=-'-I-<N/O-, Case No. ICTR-97-19-AR72, Decision of the ICTR
Appeals Chamber (3 November 1999)
:#0*6'-3/6$A#C&;1/6$*+$3"#$.*(<*$8J$K<-()-, Advisory Judgment, ICJ Reports 2005

5'*2#6&3*'$8J$:#1-1/6, IT-96-21-ICTY (16 November 1998)$

5'*2#6&3*'$8J$D#-(M5/#''#$=#0;-$7*0;*, ICC 01/05-01/08

5'*2#6&3*'$8J$F-&'#(3$%#0-(O-, Case No. ICTR-97-20-AC (20 May 2005)

5'*2#6&3*'$8J$!"*0-2$F&;-(<-$:I/1*, Case No. ICC-01/04-01/06 (29 January 2007)

5'*2#6&3*'$8J$!"*0-2$F&;-(<-$:I/1*, ICC-01/04-01/06, “Decision on the Prosecutor’s
Application for Warrant of Arrest, (10 February 2006)

5'*2#6&3*'$8J$:*>0-(*8/6L Case No. IT-95-13a ICTY, Decision on the Motion for Release by
the Accused Slavko Dokmanovic, (22 October 1997)

5'*2#6&3*'$8J$:'-<-($?/>*1/6, Case No. IT-94-2-AR-73, Decision on Interlocutory Appeal
Concerning Legality of Arrest, Appeals Chamber, (5 June 2003)

5'*2#6&3*'$8J$:'-<-($?/>*1/6L Case No. IT-94-2-PT, Decision on Defence Motion Challenging
The Exercise of Jurisdiction by the Tribunal, In Trial Chamber II, (9 Oct. 2002)

5'*2#6&3*'$8J$:'-<-($?/>*1/6L Case No IT-94-2-I, Order Confirming the Amended Indictment,
(12 February 1999)
Diplomatic Papers

The Papers of Daniel Webster, Diplomatic Papers, 1841-1843



                                               6
Preliminary Statement

    The ICC lacks jurisdiction over the this case because no predicate act of aggression occurred
and even if the blockade of the Port of Gyst is determined to be an act of aggression, it is not a
manifest violation of the United Nations Charter and thus is not admissible in the ICC.
Furthermore, the principles of complimentarity should prevent the ICC from hearing the case
until domestic courts have failed to prosecute the case. John Evans, only having influence in the
Ulvan government, did not have effective control of the political and military actions of Ulva and
therefore should not be prosecuted for his limited role in implementing the blockade. Finally, the
arrest and detention of Evans was illegal and contrary to customary international law and
therefore he should be released immediately.

Statement of Facts

    Brisk and Ulva are neighbouring countries with a long history of tension. The coastline of
Brisk containing the major Port of Gyst is disputed territory which is claimed by Ulva, but 70%
of the people are of Brisk ethnicity. R. ¶ 2. Both are State parties to the ICC and neither has filed
declarations pursuant to Article 15bis(4) of the Rome Statute. R. ¶ 1.

    In the elections of 2016 in Ulva the New Democratic Party (NDP) and its leader John Evans
were victorious, however, Benny Thompson, a political friend of Evans, became president of
Ulva. R. ¶ 3. Evans was not officially part of the government, although he remained the leader of
the NDP and was influential within the government. R. ¶ 4.

    After the 2016 elections in Ulva their relations with Brisk continued to deteriorate as a result
of several incidents including President Thompson’s sons being prosecuted in Brisk for sexual
abuse of minors, delivery of arms to Brisk from world superpowers and the increased naval
activity by Brisk in the Port of Gyst. R. ¶s 2, 5. In a collective decision by the Ulvan
government, and in repose to the actions by Brisk, Ulva blockaded the Port of Gyst on 12
February 2018. R. ¶ 6. The blockade was very close to the Port of Gyst and no ship entered the
port between 12 February 2018 and the day of Evans’ confirmation hearing, but the blockade
remained the only hostile act between the two States. R. ¶s 7, 8. Evans publicly supported the
position of the Ulvan government related to the conflict with Brisk, however he maintained that
this was a decision of the government. R. ¶ 10.



                                                  7
    The ICC prosecutor, acting C'*C/*$0*3&, began investigating the Ulva-Brisk conflict on 18
May 2018. R. ¶ 11. The UN Security Council condemned the blockade of the Port of Gyst as a
threat to international peace, however, after considering if an act of aggression had occurred
made no such determination. R. ¶s 12, 13. Despite the silence of the Security Council, the
prosecutor requested authorization to proceed with the investigation into the crime of aggression
and the Pre-Trial Chamber granted this request on December 11, 2018. R. ¶ 13.

    On 15 January 2019, the prosecutor, pursuant to Article 58 of the Rome Statute, submitted
to the Pre-Trial Chamber an application for the arrest of Evans for the crime of aggression based
on Articles 8bis and 25(3)(a) of the Rome Statute. R. ¶ 14. The prosecutor in support of the arrest
warrant submitted that Evans, as a political leader, was in effective control of the government
and failed to take reasonable steps to change governmental decision making. R. ¶ 15.The Pre-
Trial Chamber granted the application on 15 February 2019 and requested pursuant to Article 89
of the Rome Statute that Ulva or any other State parties to the Statute surrender Evans. R. ¶ 16.
The Pre-Trial Chamber further ruled that the ICC appears to have jurisdiction, the case appears
admissible and that there was sufficient evidence to support grounds for Evans’ surrender and
arrest. R. ¶ 16. President Thompson refused to surrender Evans, and in a public speech stated that
Evans enjoyed immunity as a member of parliament. R. ¶ 17.

    In late February 2019 Evans visited Konera, which is not a party to the ICC, and border
Arduum, which is a party to the ICC. R. ¶ 18. On 27 February 2019 Evans and friends visited a
casino where the bars and restaurants were located in Konera, but because gambling is illegal in
Konera the actual gambling can only take place on Arduum territory. R. ¶ 18. As a result, Evans
remained in the bar area until he was requested to accompany a private security officer to the
security desk which was on Arduum territory. R. ¶ 19. After refusing to accompany the security
officer to the security he was forcefully taken against his will into Arduum territory, where he
was arrested based on the arrest warrant from the ICC. R. ¶ 19. On 1 March 2019 Evans, in an
Arduum court, claimed his arrest was illegal, but the court held that it could not challenge the
arrest warrant of the ICC based on Article 59(4) of the Rome Statute. R. ¶ 20. On 5 March 2019
Evans was surrendered to the ICC and assigned to Pre-Trial Chamber 6 for a confirmation
hearing related to the charges against him. R. ¶ 21.




                                                 8
       Several weeks prior to Evans’ confirmation hearing 20,000 inhabitants of Gyst,
represented by one counsel, filed an application to participate in the confirmation hearing
because the blockade deprived them of important resources and they were living in fear of an
attack by the Ulvan navy. R. ¶ 25. On 2 April 2019 the Pre-Trial Chamber granted the
application for their participation in Evans’ confirmation hearing after which their involvement
or role would be determined. R. ¶ 26. On 1 May 2019 the Pre-Trial established the following
agenda for Evans’ confirmation hearing; in light of the proposed charges the jurisdiction of the
court, the legality of the arrest and detention of Evans’ and the participation of the 20,000
inhabitants of Gyst in the proceedings against Evans. R. ¶ 27.


Issues Presented

I.     Whether any predicate act of aggression occurred by Ulva’s actions of blockading
       the Port of Gyst?
II.    Whether the blockade was of the character, scale and gravity to constitute a
       manifest violation of the Charter of the UN, thus creating jurisdiction for the case to
       be heard before the ICC?
III.   Whether John Evans, having no official position within the government, nonetheless
       had effective control over the Ulvan political and military actions?
IV.    Whether jurisdiction should be set and aside and John Evans released due to the
       human rights and due process violations the Defendant suffered as a result of his
       unlawful arrest, and as a result of the procedural error committed by the Arduum?
V.     Whether John Evans enjoys immunity based on customary international law?
VI.    Whether victim participation should be limited to victim representatives during the
       confirmation hearing?

Jurisdiction of the Court

       The current case is before the Pre-Trial Chamber pursuant to Articles 8bis and 25(3)(a) of
the Rome Statute. The office of the prosecutor initiated the prosecution of Evans C'*C/*$0*3&$
and applied for an arrest warrant for Evans pursuant to Article 58 of the Rome Statute. The arrest
warrant was granted and the Pre-Trial Chamber made a preliminary ruling that it appeared the
court had jurisdiction over the case, the case appears to admissible and sufficient evidence was



                                                 9
submitted to justify the arrest and detention of Evans. The confirmation hearing will occur on 17
May 2019 before Pre-Trial Chamber 6 pursuant to Article 61 of the Rome Statute.

Legal Arguments

I.          The ICC lacks the jurisdiction to prosecute John Evans in relation to the blockade
            of the Port of Gyst.
        A case is only admissible in the ICC if all of the required jurisdictional elements are met.
These requirements include jurisdiction over the criminal act and temporal jurisdiction.1 While
the defence concedes that these requirements are met, the office of the prosecutor has failed to
produce sufficient evidence to establish that the ICC has jurisdiction over the case because no
predicate act of aggression has occurred.

        A. The defence concedes that the ICC has subject matter jurisdiction over the crime of
           aggression and that the temporal jurisdictional requirements have been met.
        The jurisdiction of the ICC is “limited to the most serious crimes of concern to the
international community,” including the “crime of aggression.”2 The defence does not dispute
that the ICC may hear cases involving the crime of aggression. The defence further
acknowledges that all temporal jurisdictional requirements have been met including that the
crime of aggression definition adopted at the Kampala 2010 Review Conference has gone into
full effect, both Ulva and Brisk are parties to the Rome Statute, and neither has filed a
declaration within the meaning of Article 15bis (4).3

        B. The Pre-Trial Chamber lacks the requisite jurisdiction over the blockade of Gyst
           because no act of aggression occurred.
        In order for a crime of aggression to have been committed the predicate act of aggression
must have occurred.4 In the case at hand the predicate act did not occur because the blockade of
the Port of Gyst by Ulva, in light of the totality of the circumstances, did not constitute an act of
aggression, the act occurred on disputed territory and the blockade was a legal act of self-defense
in response to egregious actions by Brisk.

1
    Art. 5; Art. 11.
2
    Art. 5(d).
3
    Kampala 2010 Review Conference, Resolution No. 6 adopted 6/11/10; R. ¶ 1.
4
    Art. 8bis(1).



                                                       10
               1. The blockade of a port is an enumerated act which can constitute an act of
                  aggression, but this alone does not require such a determination.
        Based on the Rome Statute the “blockade of the ports or coasts of a State by armed forces of
another State” constitutes an act of aggression.5 The definition of an act of aggression used in the
Rome Statute was adopted from the UN GA Resolution 3314 and the language of the definition
from the resolution mirrors that in the Rome Statute.6 Resolution 3314 contains a provision
which allows for the Security Council “to conclude that a determination of an act of aggression
was committed would not be justified in light of other relevant circumstances,” despite one of the
enumerated acts of aggression have been allegedly committed.7 In fact, the Security Council in
the present case failed to make a determination that the blockade constituted an act of aggression
despite considering the issue.8 Additionally, no other international entities or tribunals, such as
the General Assembly of the United Nations or the International Court of Justice, have issued
any opinions in relation to the blockade. These facts should not be dispositive for the Pre-Trial
Chamber, but should be factors which carry significant influence.

        While gravity is a factor in determining whether a crime of aggression has been committed it
should be equally available to determine that no act of aggression has occurred. Therefore, the
blockade of a port, in the absence of any armed conflict, without a single loss of life, and in light
of the Security Council’s silence should not be viewed as an act of aggression by the Pre-Trial
Chamber.

               2. The blockade of the Port of Gyst was not an act of aggression because it
                  occurred on disputed territory.
        The office of the prosecutor argues that because the blockade occurred “very close” to the
coastline and because the population there is 70% of Brisk ethnicity that the act definitively
occurred on Brisk territory.9 However, one basis for the current dispute between Ulva and Brisk
is that the coastline of Brisk is contested.10 Additionally, there has been no indication that the

5
    4)J, at 8bis(2)(c).
6
    Art. 8bis; General Assembly Resolution 3314.
7
    GA Resolution 3314, Art. 2.
8
    R. ¶ 13.
9
    R. ¶s 2, 7.
10
     R. ¶ 2.



                                                    11
Brisk coastline is recognized by the international community as being the territory of Brisk. As a
result of the territory being disputed the blockade of the Port of Gyst should not be viewed as
being an act of aggression.

            3. The blockade is a lawful act of self-defense and thus cannot be considered an act
               of aggression within the meaning of the ICC Statute or public international law.
        No act of aggression occurs when the “use of force is lawful.”11 As stated in the UN Charter
a State has an “inherent right to individual or collective self-defense.”12 Ulva’s responsive act of
blockading the Port of Gyst came after numerous antagonistic actions by Brisk, including the
delivery of arms to Brisk from world superpowers and the strengthening of the Brisk navy in the
Port of Gyst.13 These actions required a response by the Ulvan government as a result of the
“right, and indeed the duty, to respond in order to protect the life of its citizens.”14 The blockade
should be viewed by the Pre-Trial Chamber as a lawful use of force and thus by definition not an
act of aggression.

                   i.   Ulva’s action of self-defense made in response to Brisk’s increased
                        military activity was necessary and proportional.
        The principles of the self-defense were set out in a letter of 1841 written by Daniel Webster
after the British attack upon a vessel of the United States aiding British-Canadian revolutionaries
and have become “established by international customary law.”15 These principles known as the
.-'*1/(#$doctrine has been held to mean that whether a responsive action is “lawful depends on
the observance of the necessity and proportionality” of the act.16 Blockading the Port of Gyst
viewed in light of the surrounding circumstances shows the required circumstances were present.

        Webster elaborated further on the necessity terminology by stating that it means “leaving no
choice of means.”17 Thus it requires that the act be “the only way for the State to safeguard an

11
     GA Resolution 3314 Art. 6.
12
     UN Charter Art. 51.
13
     R. ¶s 3, 5.
14
  F#<-1$.*(2#G&#(6#2$*+$3"#$.*(23'&63/*($*+$-$,-11$*($H66&C/#)$5-1#23/(/-($!#''/3*'I, Advisory Opinion, I.C.J.
Reports 2004, Pg. 136, ¶ 141.
15
     ?/6-'-<&-$8J$K(/3#)$%3-3#2, 1986 I.C.J. 14 (1986)..
16
     4)J$
17
     The Papers of Daniel Webster, Diplomatic Papers, 1841-1843, at 67.



                                                           12
essential interest against grave and imminent peril.”18 There has been no showing of other viable
means that the Ulvan government could have undertaken which would have successfully stopped
both the delivery of arms to Brisk by world superpowers and the increased military activity by
Brisk in the Port of Gyst. The office of the prosecutor argues that requests to the Security
Council of the UN could have been made in an effort to stop these actions. However, because the
Security Council consists of many of the world superpowers it is unlikely that they would supply
Brisk with arms and then subsequently, through the Security Council, vote to condemn such
actions. Therefore, the blockade was the only viable option to prevent additional arms deliveries
to Brisk and halt the growing military activity in Gyst.

        In addition that an act of self-defense is necessary, it must also be proportionate or not
“unreasonable or excessive.”19 There have been no facts established to show that the blockade of
the port of Gyst was in anyway excessive or unreasonable, and in fact it was an attempt by Ulva
to prevent further escalation of the conflict with Brisk. Brisk’s import of arms from superpowers
and increased military activity was a real and imminent indication of an armed attack by Brisk
against Ulva. In a reasonable and proportionate response, and intending to prevent further similar
actions by Brisk, the Ulvan government implemented a blockade which to date has not resulted
in a single fatality.

               ii.      The blockade was an attempt to prevent the escalation of tension between
                        the nations and in an act of anticipatory self-defense.
        Based on the Bush doctrine of self-defense a state can be permitted to use force as a means
of preempting attack.20 Although this is a controversial doctrine in international law it has gained
greater support over the past eighteen years since the terrorist attacks on the United States on
September 11, 2001. In light of the actions of Brisk, having arms delivered from superpowers
and the growing military activity in Gyst, the blockade of the port by Ulva should be viewed as
an action which was meant to prevent further escalation of the conflict between Brisk and Ulva.



18
     .*(23'&63/*($*+$-$,-11, at ¶ 140.
19
     The Papers of Daniel Webster, at 67.
20
  Press Release, White House, President Bush Delivers Graduation Speech at West Point (June 1, 2002),
http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html.
$


                                                       13
This position is supported by the fact that no hostile acts have occurred between the two States
since the blockade was implemented.21

II.            If Pre-Trial Chamber finds an act of aggression was committed the case is still not
               admissible in the ICC because of the principle of complementarity and the evidence
               fails to establish substantial grounds to believe that a crime of aggression was
               committed.
        Even if the prosecutor succeeds in convincing this Chamber than an act of aggression has
been committed, the notion of complementarity should make the case inadmissible. Furthermore,
the office of the prosecutor has failed to produce adequate “evidence to establish substantial
grounds” for the Pre-Trial Chamber to determine that Evans committed the elements of the crime
of aggression including the -63&2$'#&2, the leadership requirement or the mode of individual
criminal responsibility.

        A. The rule of complementarity should prevent the ICC from hearing this case until
           domestic court have failed to pursue it.
        Principles of international law dictate that national systems be given priority in resolving
their own human rights violations. The Rome Statute expressly recognizes the principle of
complementarity in its preamble and in article 1. It states that the ICC’s jurisdiction shall be
complementary to that of national jurisdictions. The overarching notion is that domestic
remedies should be exhausted before turning to the ICC for prosecution. The ICC may step in
only when the national systems with jurisdiction are unwilling or unable to carry out prosecution.
Because there are no facts demonstrating that Brisk is unwilling or unable to carry out
prosecution, it is premature for the ICC to exercise jurisdiction and prosecute John Evans.

               1. The Prosecution can point to no facts indicating Brisk is unwilling or unable to
                  prosecute John Evans.
          Under Article 17(3), Brisk would be deemed “unable” to investigate or prosecute alleged
crimes when “due to a total or substantial collapse or unavailability of its national judicial
system, the State is unable to obtain the accused or the necessary evidence and testimony or
otherwise unable to carry out its own proceedings.” Brisk will only be deemed unwilling if one
or more of the following circumstances can be proven: (1) Brisk initiated the proceedings with
the “purpose of shielding the person concerned from criminal responsibility for crimes within the

21
     R. ¶ 8.


                                                    14
jurisdiction;” (2) Brisk has unjustly delayed the proceedings which in the circumstances is
inconsistent with an intent to bring the person concerned to justice; or (3) Brisk has not been
conducting proceedings against John Evans independently or impartially.22

          In this case, none of the circumstances exists. The first and third are not applicable,
because Brisk has not had the opportunity to even initiate proceedings. The prosecutor cannot
prove that Brisk unjustly delayed the proceedings demonstrating an intent inconsistent with
bringing John Evan’s to justice because Brisk was not afforded an adequate amount of time to
even begin prosecution. The blockade of the Port of Gyst commenced on 12 February 2018, and
the prosecutor announced his intention to investigate C'*C/*$0*3& on 12 May 2018.23 The
prosecutor rushed an indictment when he should have allowed the domestic system to work or at
least waited a sufficient period of time so that it would have been clear that Brisk had no
intention to prosecute. The U.N. Security Council adopted resolution 1593 referring the situation
in Darfur to the ICC Prosecutor in March 2005.24 However, before declaring that the ICC could
usurp Sudan’s jurisdiction, the U.N. Security Council issued numerous resolutions beginning in
July 2004 calling on the Sudanese Government to stop the violence.25 Therefore, even in a
situation as grave as Darfur, the national authority was allowed nearly a year to take the
necessary steps indicating they were willing and able to prosecute. In this case, the prosecutor
stripped national authorities of jurisdiction after a mere 3 months. Inaction should not equate to
unwilling when the domestic system was not afforded adequate time to respond appropriately
and enjoy the privilege of complementarity.

          Further, Brisk is not a failed state with an inadequate system rendering prosecution
impossible. In contrast, a number of factors present in Sudan contributed to the conclusion that
the Sudanese government is unable and unwilling state. For example, many of the Sudanese laws
protect Sudanese law enforcement officials from criminal prosecution and additionally, the
current status of the Sudanese laws [at the time] created “a climate of impunity,” which made

22
     Art. 17(2)(a)-(c)..
23
     R. ¶s 6, 11.
24
     S.C. Res. 1593, U.N. Doc. S/RES/1593 (31 March 2005).
25
  See for example A#2*1&3/*($PQQR (2004), S.C. Res. 1556, U.N. Doc. S/RES/1556 (2004) (July 30, 2004),
A#2*1&3/*($PQRS (2004), S.C. Res. 1564, U.N. Doc. S/RES/1564 (2004) (Sep.18, 2004), and A#2*1&3/*($
PQTS (2004) S.C. Res. 1574, U.N. Doc. S/RES/1574 (2004) (Nov.19, 2004).


                                                       15
accountability against such officials for the crimes they commit unachievable.26 The court found
the Sudanese judiciary was largely subservient to the regime; therefore, its effectiveness was
seriously undermined.27 Here, Brisk is a developed and powerful country fully capable of
carrying out domestic prosecution.

        2. The Prosecutor’s premature investigation deprived Konera or Arduum the
           opportunity to investigate and prosecute.
          Universal jurisdiction exists over crimes against the peace, which is the precursor lexicon
for the crime of aggression.28 Per principle 1(2), any competent and ordinary judicial body of
any state may exercise jurisdiction in order to try a person duly accused of committing a serious
crime under international law as specified in Principle 2(1). In this case, both Konera and
Arduum are states that could have exercised jurisdiction and prosecuted John Evans. Either state
could have used universal jurisdiction as a basis for extraditing John Evans, provided that they
had established a prima facie case.29 However, the prosecutor rushing the case to the ICC
foreclosed any efforts.

        B. The actions or omissions by Evans are not sufficient to satisfy the actus reus
           element of the crime of aggression.
        Evans involvement in the political system and public support of the blockade of the Port of
Gyst does not constitute “planning, preparation, initiation or execution” of the blockade and
therefore he should not be prosecuted for committing a “crime of aggression.”30 Although it is
said that Evans is influential in many aspects of the Ulvan government, he holds no official
position within the government, he does not have a vote within parliament and there has been no
showing that he in anyway influenced the government to implement the blockade.31 This lack of
a factual support of Evans’ involvement in the blockade clearly falls short of establishing
26
  Commission on Human Rights, A#C*'3$*+$3"#$%C#6/-1$A-CC*'3#&'$*($3"#$"&0-($'/<"32$2/3&-3/*($/($3"#$
%&)-(L U.N. Doc. E/CN.4/2006/111, p 15 (11 January 2006).
27
  %##$<#(#'-11I$U.S. Department of State, U.*&(3'I$A#C*'32$*($@&0-($A/<"32$5'-63/6#2V$%&)-(, 2006, Released by
the Bureau of Democracy, Human Rights, and Labor, US Department of State (March 6, 2007), available at:
http://www.state.gov/g/drl/rls/hrrpt/2006/78759.htm , [last accessed Dec. 3, 2008].
28
     Princeton Principles of Universal Jurisdiction 2(1)(4).
29
     4;/)J 1(3).
30
     Art. 8bis(1).
31
     R. ¶ 4.



                                                               16
“substantial grounds” to believe that he participated in the “planning, preparation, initiation or
execution” of the blockade.32

        The prosecution of the Nazi Germany regime in the Nuremburg Trials is illustrative of what
actions are necessary to find an individual criminally responsible for their participation in the
illegal acts of a regime or government. One such case involved the prosecution of Hermann
Goering who was “the successor designate to Hitler, as Chief of the Air Forces, and as economic
czar of Greater Germany, he was a party to all the planning for military operations of the Nazi
forces in the East and the West.”33 Goering was found guilty of numerous international crimes
including crimes against the peace, war crimes and crimes against humanity because of this
direct involvement in the planning and implementation of illegal acts.34 This indicates that mere
influence or involvement in the political system is insufficient to establish the -63&2$'#&2 element
of the crime of aggression without a showing of a more direct and substantial involvement in
implementation or execution of the illegal act. A showing of direct involvement would certainly
satisfy the -63&2$'#&2 element of the crime, just as the ICTY found that the accused was directly
involved in “killings, beatings and forced transfers,” of the victims and therefore guilty of crimes
against humanity.35 The Pre-Trial Chamber should find that the office of the prosecutor has
failed to meet its burden in establishing substantial grounds to believe Evans planned, prepared,
initiated or executed any part of the collective government action by Ulva to blockade the Port of
Gyst.

        C. The blockade of the Port of Gyst is not of the character, gravity or scale to
           constitute a manifest violation of the Charter of the United Nations.
        The ICC only has jurisdiction to “prosecute the most serious of international crimes” and for
this reason only manifest violations of the UN Charter should warrant the prosecution of the
crime of aggression in ICC.36 Whether an act of aggression is considered a manifest violation of


32
     Art. 61(5); Art. 8bis(1)
33
     !"#$K(/3#)$%3-3#2$8J$7*#'/(<, 6 F.D.R. 69 (1947).
34
   Yale Law School, ?-O/$.*(2C/'-6I$-()$E<<'#22/*(, Vol. 2 Ch. XVI Pt. 1,
http://avalon.law.yale.edu/imt/chap16_part01.asp (last visited Jan. 4, 2011).

35
     !"#$5'*2#6&3*'$8J$:&2>*$!-)/6, Case No. IT-94-1-A.
36
     Art. 1.



                                                          17
the UN Charter is determined by the “character, gravity and scale” of the act.37 These
requirements ensure that the ICC will only entertain cases involving the “most serious of
international crimes.”38 If borderline cases are entertained by the ICC this could open the flood
gates of referrals by state parties thus politicizing the ICC.39 Furthermore, based on the limited
resources of the ICC and a world beset with inter and intra State violence such as, the Israeli
flotilla case, and conflicts in Georgia, Ivory Coast, and Korea, these thresholds permit the ICC to
prioritize the cases it hears.

               1. The blockade of the Port of Gyst in not of the character to warrant ICC
                  prosecution because no violent acts against the civilian population has occurred
                  and it only prevents access by sea to the Port of Gyst.
        Although there is no established jurisprudence as to what type of acts satisfy the character
requirement for the crime of aggression, judgments relating to crimes against humanity are
helpful. Both the crime of aggression and crimes against humanity have high thresholds for an
act warranting prosecution and therefore judgments in cases involving crimes against humanity
should give guidance to the Pre-Trial Chamber to determine if the blockade of Gyst meets the
character threshold of the statute.

        In a case involving crimes against humanity charges the IMT found that for an act to be of
the character to warrant prosecution “the existence of a widespread and systematic attack against
a civilian population” was required.40 In determining if an act was widespread and systematic the
ICTY found one factor to be whether and “unchanging and continuous nature of the violence
against a particular civilian population,” existed.41 The facts of this case show that no acts of
violence have occurred against the civilian population, let alone unchanging or continuous
violent acts. Furthermore, the office of the prosecutor has produced no evidence that the
blockade of the Port of Gyst prevented necessary resources to reach the civilian population of
Brisk by means other than boat via the Port of Gyst. Therefore, the Pre-Trial chamber should
find that the blockade fails to satisfy the character threshold for the crime of aggression.

37
     Art. 8bis(1).
38
     Art. 1.
39
     Art. 14-Permitting State parties to make referrals of cases to the office of the prosecutor.
40
     7*#'/(<, 6 F.D.R. 69 (1947).
41
     !"#$5'*2#6&3*'$8J$7*'-($D#1/2/6, IT-95-10-T, ¶ 53.



                                                             18
            2. The case is not admissible for ICC prosecution because the blockade of the Port
               of Gyst is not sufficiently grave.
        The gravity threshold like the character threshold acts a filter to ensure the ICC only hears
cases that are sufficiently important to the international community and to avoid the Tribunal
from becoming overly politicized. The insufficient gravity of the blockade is evident because it
has not resulted in a single fatality and there has been no “acts of -'0#)$-<<'#22/*($perpetrated
by [one State] on the territory of [another State], in flagrant violation of the United Nations
Charter.”42 The absence of any armed attack and the repercussions felt by the civilian population
in Brisk the blockade should be viewed as more of an economic sanction imposed by Ulva in
response to the numerous antagonistic actions of Brisk. Further illustrating the lack of gravity is
the fact that the blockade is in no way similar to “aggressive wars” which are charged with “the
utmost gravity.”43

        The prosecution by the IMT of Goering an individual within the Nazi Germany regime
further illustrates the insufficient gravity of the blockade. In the 7*#'/(< case the tribunal found
the seizure of two nations (Austria and the Czechoslovakia) and the initiation of armed attacks
against Poland constituted acts and a war of aggression.44 Obviously, the mere blockade of a port
in response to arms deliveries and growing military activity cannot be compared to the full on
invasion of two nations. This further supports the position that the Pre-Trial Chamber should find
the blockade as failing to meet the gravity threshold of the crime of aggression.

            3. The excessive amount of victims who applied to participate in the confirmation
               hearing should not bias or persuade the Pre-Trial Chamber to find that the
               blockade is of the scale to warrant ICC prosecution.
        In an attempt to persuade the Pre-Trial Chamber that the blockade meets the scale
requirement, an excessive number of victims have applied to be involved in Evans’ confirmation
hearing.45 However, the victims only offer a blanket statement that as a result of the blockade
“they were deprived food and other important resources and that they had been living in constant



42
     :#0*6'-3/6$A#C&;1/6$*+$3"#$.*(<*$8J$K<-()-, Advisory Judgment, ICJ Reports 2005, P. 176 ¶ 1.
43
     7*#'/(<, 6 F.D.R. 69 (1947).
44
     4)J$
45
     R. ¶ 26-20,000 victims have applied to participate in Evans’ confirmation hearing.



                                                           19
fear of attack by the Ulvan fleet.”46 In the absence of a more detailed and specific account of
how these victims have been effected by the blockade, the mere number of applicants should
have no bearing in determining the scale of the blockade. Thus the Pre-Trial Chamber should
find that the blockade of a single port, even accompanied with numerous victim participation
applications, fails to meet the scale threshold of the crime of aggression.

        D. Insufficient evidence has been submitted to satisfy the effective control requirement
           of the crime of aggression or to prove the mode of individual criminal responsibility
           under the Article 25 of the Rome Statute.
        The crime of aggression requires that the accused be in “a position to effectively exercise
control over or to direct the political or military action of state.”47 The requirement that the
accused be in effective control ensures that only the individuals with the ability to implement or
prevent acts of aggression will be prosecuted for the crime of aggression. The fact that Evans had
political influence is not sufficient to satisfy the effective control requirement of the crime of
aggression. If political influence is sufficient the number of individuals which could be
prosecuted by the ICC would diminish the purpose and legitimacy of the Tribunal.

        Additionally, the office of the prosecutor has initiated the prosecution of Evans for his role
in the blockade “as an individual, jointly with another or through another person.”48 Evans did
not directly participate in the blockade individually and therefore the office of the prosecutor
must be proceeding under either a co-perpetrator or an indirect perpetrator mode of criminal
responsibility.49 However, the evidence submitted and the jurisprudence of the ICC indicates that
that insufficient evidence has been provided to establish either of these theories of individual
criminal responsibility.

            1.    Although Evans was undoubtedly influential within the government, he held no
                 official position in the government and was not effectively in control of the
                 political or military actions of Ulva.


46
     R. ¶ 25.
47
     Art. 8bis(1).
48
     Art. 25(3)(a).
49
  W*)#2$*+$F/-;/1/3I$-()$3"#$W#(3-1$X1#0#(39$E(-1IO/(<$3"#$X-'1I$D&'/2C'&)#(6#$*+$3"#$4(3#'(-3/*(-1$.'/0/(-1$
.*&'3, September 2010, Washington College of Law, P. 2 (finding the Article 25(3)(a) allows for several modes of
individual criminal responsibility including direct perpetration, co-perpetration and indirect perpetration.



                                                       20
        Evans should not be prosecuted for the blockade implemented by the Ulvan government
because he lacked the required authority to have effective control over the government’s actions.
The ICTY has interpreted effective control to mean having a “‘material ability’ to prevent…
crimes and punish the subordinates for committing them.”50 Evans holds no official position
within the government and although it is said he is influential in governmental decisions, there
has been no evidence that he had any material ability to prevent the blockade of the Port of Gyst.
Giving more support to Evans’ political influence not meeting the effective control requirement
is the fact that President Benny Thompson is the head of the government and obviously has more
ability to prevent the blockade. Furthermore, the blockade was in response, at least in part, to
President Thompson’s sons being indicted for sexual abuse of minors in Brisk.51 Based on the
position which President Thompson has in the government and his personal tie to the Ulva and
Brisk conflict, it appears Thompson not Evans was in effective control of the Ulvan government.

        The office of the prosecutor alleges that Evans was a “political leader” and was in “effective
control of the government decisions and failed to take the necessary and reasonable steps” to
prevent the blockade.”52 However, there is no factual evidence supporting these allegations. The
prosecutor has not submitted any evidence that Evans influenced any members of parliament to
vote in favor of the blockade. The prosecutor only can show that Evans indicated his support for
the blockade after it had been put in place. Likewise, the prosecutor cannot submit any evidence
as to what reasonable steps Evans could have in fact taken to prevent the blockade. Evans holds
no official position in parliament; as such, he did not participate in the vote to implement the
blockade. There has been no showing that Evans made any “essential contributions” in relation
to the blockade and in fact there has been no showing that he carried out any portion of the
alleged act of aggression.53

        The prosecution further argues that Evans political influence is sufficient for him to
effectively control the actions of the Ulvan government. The prosecution relies on a case from
the ICTR where an individual with a great deal of political influence was found to have been in a

50
     !"#$5'*2#6&3*'$8J$:#1-1/6, IT-96-21-T, ¶ 378.
51
     R. at ¶5.
52
     R. at ¶ 15.
53
     5'*2#6&3*'$8J$D#-(M5/#''#$=#0;-$7*0;*, ICC 01/05-01/08, ¶ 350.



                                                       21
position of effective control.54 In the %#0-(O-$case the appeals chamber found the accused was
in fact in “effective control” of the perpetrators of the crime because “authority can be informal
or of a purely temporary nature.”55 However, the facts and surrounding circumstances of the
%#0-(O-$case can be differentiated from those in the current case. Unlike Evans, Laurent
Semanza, was a mayor for twenty years in Rwanda, led meetings during which he incited others
to commit genocide and even was personally involved in some of the criminal acts. There has
been no such showing with regard to Evans, but rather only allegations that Evans had influence
within the Ulvan government. Given that Evans has no official position in the government and
only allegedly has political influence within the government the Pre-Trial Chamber should find
that Evans was not in effective control of the political and military actions of Ulva. $

            2. Evans was not in a position of authority, did not have control over the
               government of Ulva and made no essential contributions in implementing the
               blockade and therefore cannot be found to be co-perpetrator or an indirect
               perpetrator.
        The ICC jurisprudence has established that a co-perpetration mode of responsibility requires
“(i) a plurality of persons; (ii) a common plan involving the commission of a crime within the
Statute; and (iii) and essential contributions by each co-perpetrator to the execution of the
common plan.”56 While there is some merit to the position that the first two requirements are met
in the current case, there has been no evidence submitted that Evans played any role other than
publicly supporting the decision, let alone an essential contribution, in the implementation of the
blockade. The office of the prosecutor asserts a “control over the crime” theory which states
“principals to a crime are not limited to those who physically carry out the offence, but also
include those, who in spite of being removed from the crime, control or mastermind its
commission.”57 However, an individual who is merely influential in the government, without
more factual evidence of their involvement in the crime, cannot be found to control or be the
mastermind of the crime. The Pre-Trial Chamber should find that Evans is not individually
responsible for the blockade of the Port of Gyst based on a co-perpetrator mode of individual
criminal responsibility.
54
     5'*2#6&3*'$8J$F-&'#(3$%#0-(O-, Case No. ICTR-97-20-AC.
55
     4)J, at ¶ 349.
56
     W*)#2$*+$F/-;/1/3I, at P. 2-3 (relying on the Pre-Trial Chamber’s ruling in the Y-3-(<-$Z$?<&)[*1*$case).
57
     5'*2#6&3*'$8J$!"*0-2$F&;-(<-$:I/1*, ICC-01/04-01/06, ¶ 330.



                                                           22
        An indirect perpetrator mode of responsibility arises in three types of cases “(i) those which
the physical perpetrator lacks the capacity for blameworthiness…(ii) those in which the indirect
perpetrator misleads the physical perpetrator…; and (iii) those in which the indirect perpetrator
commits the crime through another by means of ‘control over an orginisation’”58 Neither of the
first two situations apply in this case and the Pre-Trial Chamber in the Y-3-(<-$Z$?<&)[*1*$case
further interpreted the last situation to require automatic compliance with the superiors orders.
As commentators have noted “this interpretation of indirect perpetration would exclude a finding
of principal responsibility in cases such as those were an influential political figure who holds no
position of authority over any regular organization is nevertheless able to use his sway over the
community to convince others to commit crimes on his behalf.”59 In the case at hand, Evans does
have influence in the Ulvan government, but holds no official position and could not give orders
which would automatically be complied with. Therefore the Pre-Trial Chamber should find that
Evans cannot be held individually responsible as indirect perpetrator under Article 25(3)(a) of
the Rome Statute.

III.         John Evan’s human right to due process has been violated by the process of his
             arrest; Thus the Court should set aside jurisdiction and release the accused.
       If this court declines to declare the case inadmissible for aforementioned reasons, then it
should refuse to hear the case on prudential jurisdictional grounds. Under Article 21(3), this
court should only exercise jurisdiction in proceedings that fully comply with procedures
proscribed by law and international human rights protections.60 One highly relevant factor is
how the accused was brought into the jurisdiction of the tribunal.61 This court has held that “a
case arising from the investigation of a situation will fall within the jurisdiction of the court only
if the specific crimes of the case do not exceed territorial, temporal, and possibly personal
parameters defining the situation under investigation and fall within the jurisdiction of the
Court.”62 Here, the gross defects pertain to jurisdiction “ratione personae.” The unlawful arrest,

58
     W*)#2$*+$F/-;/1/3I, at P. 5.
59
     4)J$$
60
     %## Art. 21(3).
61
  5'*2#6&3*'$8J$D#-(M=*26*$=-'-I-<N/O-, Case No. ICTR-97-19-AR72, Decision of the ICTR Appeals Chamber, ¶
74 (3 November 1999).
62
  5'*2#6&3*'$8J$:I/1*, ICC-01/04-01/06, “Decision on the Prosecutor’s Application for Warrant of Arrest, Article
58” at ¶ 21 (10 February 2006).


                                                       23
arbitrary detention, and subsequent errors committed by the National Court of Arduum demand
in the interests of justice that jurisdiction be set aside and John Evan’s be released.

       A. John Evan’s human rights were violated by the forced cross border abduction into
          Arduum and by the subsequent unlawful arrest and detention.

       Article 9 of the International Covenant of Civil and Political Rights (ICCPR) states,
“everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention and no one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.”63 John Evan’s guarantees to liberty
were violated when he was forcibly abducted by private security staff from Konera to Arduum
and subsequently arrested and detained.64 In :*>0-(*8/6, a trick to lure the accused to a place
where he could be arrested was insufficient to constitute a forcible abduction.65 This case is
distinguishable because it involves actual physical force executed against Evan’s will used as the
means for his arrest and therefore constitutes a ‘bad capture.’

        Further, after being unlawfully captured, Evan’s was subjected to an arbitrary arrest and
detention. The arbitrariness is evinced by the fact that he was subjected to an identity check for
unknown reasons and because nothing indicates anyone else in Evan’s group was treated
similarly, therefore selecting Evans was arbitrary and seemingly without cause.66 Where a
defendant is obtained by unlawful means, subsequent prosecution runs afoul to accepted
principles of international law.

                  1. The court should adopt the abuse of process doctrine embodied in the
                     principle of Male Captus Male Detentus.
       The ICC is not bound by the decision of other tribunals and should employ the principle
“W-1#$.-C3&2\W-1#$:#3#(3&2V$because it affords individuals and the judicial system the integrity



63
  Office of the U.N. High Commissioner for Human Rights, 4(3#'(-3/*(-1$.*8#(-(3$*($./8/1$-()$5*1/3/6-1$A/<"32,
(23 Mar. 1976) http://www2.ohchr.org/english/law/ccpr.htm.
64
     R. ¶ 19.
65
  5'*2#6&3*'$8J$:*>0-(*8/6L Case No. IT-95-13a ICTY, Decision on the Motion for Release by the Accused
Slavko Dokmanovic, (22 October 1997).
66
     R. ¶ 19.



                                                      24
they deserve. Under W-1#$.-C3&2$W-1#$:#3#(3&2, the unlawful seizure, detention, and rendition
of a defendant should lead to the conclusion that “international law to some degree has been
breached and that the violation of some fundamental principle - whether it be state sovereignty
and/or international human rights and/or the rule of law – needs to be protected above all other
considerations.”67 This principle is consistent with universally adopted treaty provisions such as
Article 9 of the ICCPR and the Rome Statute, which provides that the ICC’s law must be
interpreted in accordance with international human rights law.68

       The ICTY justified such capture as necessary to apprehend perpetrators of universally
condemned offenses.69 Yet the ICTY’s rationale contradicts with the fact that “tribunals are
involved in a peace mission and are expected to contribute in a positive way to the restoration of
peace and security in the area. Consequently, any use of methods and practices that would, in
themselves, violate fundamental principles of international law and justice would be contrary to
the noble mission of this Tribunal.”70 Endorsing such precedent, and allowing the prosecution of
John Evans after his unlawful capture, is damaging and dangerous to the future of the ICC as it
creates dangerous incentives. It implicitly encourages the use of any means for capture, whether
illegal or in violation of an individual’s human rights. Finally, adopting the rationale of the
ICTY would greatly offend the integrity of this Court because it flies in the face of the maxim #]$
/(/&'/-$/&2$(*($*'/3&', (“right cannot grow out of injustice”), meaning illegal acts must not be
allowed to ripen into irregular judicial proceedings against the accused because it constitutes
abuse of process and a breach of the rule of law.71 Therefore in accordance with the principle
UW-1#$.-C3&2$W-1#$:#3#(3&2V the unlawful seizure of John Evan’s from Konera to Arduum
violated his liberty, and his continuing detention and rendition breaches international law.


67
  5'*2#6&3*'$8J$:'-<-($?/>*1/6, Case No. IT-94-2-PT, Decision on Defence Motion Challenging The Exercise of
Jurisdiction by the Tribunal, In Trial Chamber II, ¶ 65 (9 Oct. 2002), D&)/6/-1$%&CC1#0#(3$No. 37.
68
     Art. 21(3).
69
  5'*2#6&3*'$8J$:'-<-($?/>*1/6, Case No. IT-94-2-AR-73, Decision on Interlocutory Appeal Concerning Legality
of Arrest, Appeals Chamber, ¶ 26 (5 June 2003).
70
  5'*2#6&3*'$8J$:'-<-($?/>*1/6, Case No. IT-94-2-PT, Decision on Defence Motion Challenging The Exercise of
Jurisdiction by the Tribunal, In Trial Chamber II, ¶ 65 (9 Oct. 2002).
71
  Alastair Gillespie, W-1#$.-C3&2$=#(#$:#3#(3&2^, MEGRET INTERNATIONAL CRIMINAL LAW SEMINIAR ,
http://sites.google.com/site/internationalcriminallaw/Home/25-male-captus-bene-detentus, (last visited Jan. 2, 2011).



                                                         25
       B. John Evan’s human rights were violated by the National Court of Arduum’s refusal
          to assess the legality of his arrest.
       Upon obtaining custody of John Evans the National Court of Arduum was obligated to assess
the legality of his arrest at the surrender hearing in Arduum on 1 March, 2019.72 Arduum was
compelled to comply with the ICC arrest warrant; however, Article 59(4) does not compel the
custodial state to forego all judicial review of the circumstances surrounding the arrest itself.
Article 59 contains a number of important safeguards for the accused and the custodial states are
obliged to abide by Article 59 in order to protect the rights of the arrested person at the national
level. 73 Indeed, the ICC Statute specifically obliged Arduum to determine whether John Evans
was arrested lawfully.74

           1. John Evans was denied the full opportunity to contest his unlawful arrest and
              thus was denied the right to request interim release.
        At the surrender hearing on 1 March 2019, the national court of Arduum incorrectly
indicated that they had no choice other than to execute the arrest warrant and could not challenge
the warrant’s validity due to Article 59(4).75 Article 59(4) only prevented Arduum from
challenging whether the issuance of the warrant was appropriate and reasonable in accordance
with Article 58(1) and 58(2). However, this bar does not relieve Arduum of responsibility for
ensuring that John Evans human rights were respected during his arrest and detention. Article
59(3) protects the accused’s right to apply to the custodial state for interim release. The national
court must consider whether, given the gravity of the alleged crimes, there are urgent and
exceptional circumstances to justify interim release and whether necessary safeguards exist to
ensure that Arduum, as the custodial state, can fulfill it duty to surrender the person to the
court.76

        By refusing to assess the legality of John Evan’s arrest, the national court of Arduum
violated its obligation under Article 59(2) and prevented John Evans from exercising his right to

72
     Art. 59(2)
73
     Goran Sluiter, !"#$%&''#()#'$*+$,-'$.'/0/(-12$3*$3"#$4(3#'(-3/*(-1$.'/0/(-1$.*&'3, 25 Loy. L.A. Int’l & Comp.
L. Rev. 605, 622. (2003).
74
     Art. 59(2).
75
     R. ¶ 20.
76
     Art. 59(3) and (4).



                                                         26
immediately request interim release as a remedy for his unlawful arrest. The effective legal
remedies provision is indispensible in preserving the integrity of the subsequent international
criminal proceedings.77 Given that John Evan’s human rights were severely violated when he
was forcibly abducted to Arduum, arbitrarily arrested and detained, interim release would have
been appropriate. This is especially true given that the gravity of the alleged crime is minimal
considering the scope of the crimes the ICC typical prosecutes. Therefore the national court
committed a grave error in failing to assess the legality of John Evan’s arrest and ultimately
depriving him of his right to apply for interim release immediately upon arrest.

     C. Jurisdiction does not exist because the violations of John Evan’s rights outweigh
        the imperative of prosecution in this case and he should be immediately released.
     Whether or not this court has jurisdiction “ratione personae” depends on “whether there are
any circumstances related to the accused which would warrant setting aside jurisdiction and
releasing the accused.”78 In considering those circumstances the court may decline to exercise
jurisdiction in cases “where to exercise that jurisdiction in light of a serious and egregious
violations of the accused’s right would prove detrimental to the court’s integrity.”79 Here, the
violations of John Evan’s human rights resulting from his unlawful arrest and the error
committed by the national court of Arduum, warrant setting aside jurisdiction. From conception,
every legal proceeding and moment John Evan’s is detained is in violation of his human rights
and due process rights.

        1. Setting aside jurisdiction and releasing John Evans is the proportionate remedy
           for the numerous serious violations of his rights.
     In ?/>*1/6, the court found that setting aside jurisdiction would be a disproportionate remedy
given the serious nature of the alleged crimes. The Appeals Chamber affirmed this decision
primarily based on the essential interests of the international community in the prosecution of

77
   Bert Swart, E''#23$5'*6##)/(<2$/($3"#$.&23*)/-1$%3-3#, in 2 THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT: A COMMENTARY 1247, 1251 (This appears to be the prevailing view in cases before both
the ICTR and ICTY. See Prosecutor v. Barayagwiza; see also Prosecutor v. Nikolic, Case No. IT-94-2-PT, ¶111,
114 (2002)).
78
  5'*2#6&3*'$8J$?/>*1/ , IT-940-AR73, “Decision on Interlocutory Appeal Concerning the Legality of Arrest” at ¶19
(5 June 2003).
79
  5'*2#6&3*'$8J$?/>*1/ , Case No IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction
by the Tribunal, ¶ 114 (9 October 2002).



                                                       27
Nikolic.80 Specifically, Nikolic was charged with 29 counts of Crimes Against Humanity, 29
Counts of Grave Breaches of Geneva Convention, and 22 violations of the Laws or Customs of
War.81 In contrast, a blockade with no further violent or aggressive acts as charged in this case is
simply nowhere near as significant as those crimes in ?/>*1/6 which justified exercising
jurisdiction in spite of his human rights violations.

          Further, the level of due process protection for the accused is greatest at the ICC of all
criminal tribunals.82 In ?/>*1/6, the court stated that there “there exists a close relationship
between the obligation of the Tribunal to respect the human rights of the Accused and the
obligation to ensure due process of law.”83 The court stated further that the issue of respect for
due process encompasses more than the court’s duty to ensure that the Accused receives a fair
trial.84 Therefore choosing to exercise jurisdiction in spite of the numerous violations of Evan’s
rights would be a grave mistake and would undermine this Court’s high ideals because at this
point a fair trial is an impossibility. The court’s integrity and ability to exercise jurisdiction was
tainted the moment Evans was forced into Arduum and detained. Gravity of the crimes alone
does not justify a departure from human rights norms85 and while other tribunals have looked
past that defect, they have done so where the crimes alleged constitute the worst crimes against
humanity.86 Here, the prosecution is unable to demonstrate that this court must exercise
jurisdiction in spite of the numerous human rights violations therefore setting aside jurisdiction is
proportionate. This court must release Evans, as it is the only suitable means to remedy his
unlawful arrest and continuing unlawful detention.



80
  5'*2#6&3*'$8J$:'-<-($?/>*1/6L Case No IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of
Arrest, ¶ 30 (5 June 2003).
81
     5'*2#6&3*'$8J$:'-<-($?/>*1/6, Case No IT-94-2-I, Order Confirming the Amended Indictment, 12 February 1999.
82
  Jeremy Rabkin, !"#$5*1/3/62$*+$3"#$7#(#8-$.*(8#(3/*(29$:/23&';/(<$=-6><'*&()$3*$3"#$4..$:#;-3#,$44 Va. J.
Int’l L. 169, 171 (2003).
83
  5'*2#6&3*'$8J$:'-<-($?/>*1/ L Case No IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of
Jurisdiction by the Tribunal, ¶ 111 (9 October 2002).
84
     4;/)J$
85
   Caroline L. Davidson, ?*$%"*'36&32$*($@&0-($A/<"329$B-/1$-()$3"#$4(3#'(-3/*(-1$.'/0/(-1$Trial, 60 Am. U.L.
Rev. 1, 31 (2010).
86
   4). at n. 74.



                                                        28
              2. John Evan’s must receive compensation for his unlawful arrest and detention.
           In addition to setting aside jurisdiction and releasing John Evans, he is statutorily owed
compensation as a remedy for the multiple violations of his rights to due process. Specifically,
Article 85 of the Rome Statute mandates that any individual that has been subjected to an
unlawful arrest or an unlawful detention has an enforceable right to compensation.87

IV.           John Evan’s enjoys immunity under principles of customary international law.

           Article 27(1) proclaims that the Rome Statute applies to any individual, regardless of official
capacity, which includes members of parliament. The prosecutor issued Evan’s arrest warrant on
15 February 2019 and on 19 February 2019, the Ulvan government represented by President
Thomas publicly stated that Evans enjoyed immunity as a member of parliament and therefore
could not be arrested and surrendered to the ICC.88 Despite the seemingly rigid command of
Article 27(1), this court should find that John Evans is immune from prosecution based on
customary international law.

           Beginning with Nuremburg and Tokyo tribunals and up until present day, heads of state and
important governmental figures have enjoyed immunity from prosecution.89 The notion is that
political punishment has historically been preferred over prosecutions. Post conflict justice
practices indicate that that senior leaders who have been charged or have committed international
crimes often experience disqualification from their governmental positions.90 The International
Court of Justice’s 2002 decision in .*(<*$8J$=#1</&0 indicated that Article 27 removes
substantive immunity, but the subsequent case of al-Bashir, the Sudanese head of state, indicate
the lingering effects of the practice.91 Al-Bashir received support from the majority of Africa
and Arab heads of states on the basis of their interpretation of head-of-state immunity.92

           The historical and current status of governmental immunity indicates that Article 27 is
absolute in form but not in practice. Therefore, because John Evans is a highly regarded member
87
     Art. 85(1).
88
     R. ¶ 16-17.
89
     M. Cherif Bassiouni, 5#'2C#63/8#2$*($4(3#'(-3/*(-1$.'/0/(-1$D&23/6#, 50 Va. J. Int'l L. 269, 316 (2010).
90
     4)J at 315.
91
     4).
92
     4).



                                                            29
of parliament and important governmental figure, he should receive immunity based on the
customary application of the immunity doctrine.

V.          Victim participation should be extremely limited so not to infringe on John Evan’s
            due process rights to a speedy trial.
        Where jurisdiction or case admissibility is before the court, victim participation is permitted
according to Article 19(3) of the Rome Statute, provided that the victim meets the statutory
definition of a victim in Rule 85. In this case, an unmanageable 20,000 alleged victims have
come forward and demanded full participatory rights. There is no way for these victims to fully
participate at this stage –or indeed at all stages of the proceedings—without undermining the
accused’s rights to a speedy trial. Therefore, the number of victims allowed to participate in the
proceedings must be extremely limited and a victim representative should be appointed to ensure
the effectiveness of the proceedings, pursuant to the ICC Rules of Evidence and Procedure 90(2).
This court possesses the ability to exercise its discretion to determine when victim participation
is permitted and when it is not. Allowing vast numbers of victims to participate in this
proceeding would be inconsistent with the rights of the accused and his guarantee to a speedy
trial as guaranteed by Article 68(3).

        A. Greatly reducing victim participation is appropriate and necessary to guarantee
           John Evan’s due process right to a speedy trial.
        Article 19(3) of the Rome Statute provides that victims are permitted to submit observations
to the court in proceedings pertaining to jurisdiction or admissibility of the case. However, there
is no provision of the Statute that stipulates that every victim is allowed to participate or has the
right to do so. Indeed, article 68 requires a showing that “the personal interests of the victim are
affected” in order for victims to be permitted to submit additional evidence.93 Here, it has been
alleged that as a result of the blockade “they [the victims] were deprived food and other
important resources and that they had been living in constant fear of attack by the Ulvan fleet.”94
That statement is insufficient to prove that the personal interests of each victim have been
affected and simply does not demonstrate the direct causal link between the harm suffered and



93
     2##$Art. 69.
94
     R. ¶ 25.



                                                    30
the alleged crime, which is necessary for victims to be entitled to participate in proceedings at
this stage of the litigation.95
        Additionally, Article 68(3) prevents victim participation in a manner that is inconsistent with
the rights of the accused. Allowing presentation of additional evidence at the confirmation
hearing would consume an exorbitant amount of time and judicial resources and is precisely the
sort of impediment that would deprive John Evan’s of his due process right to a speedy trial.

        B. Victim representatives enjoy limited rights and may not introduce evidence at the
           confirmation hearing.
        Under Rule 91(2) of the ICC Rules of Evidence and Procedure, the Pre-Trial Chamber
effectively sets the boundaries for victim participation in Pre-Trial proceedings. Victim
representatives may attend the confirmation hearing however when appropriate, the Pre-Trial
Chamber may limit the representative’s intervention to written observations or submissions.96
Here, because of the lack of direct evidence establishing that each of the 20,000 individuals is a
;*(-$+/)# victim, the Pre-Trial Chamber should exercise their right to limit the victim
representative.

         Further, Rule 91(3)(a) allows a legal representative to request the right to question a
witness, an expert, or the accused, however nothing in the rule allows a legal representative to
introduce additional evidence at trial. Rather, decisions by this court limit the representative to
making opening and closing statements at the confirmation hearing, and provide that legal
representatives “may not enlarge upon the evidence or facts in the case.”97 Finally, the court has
the discretion to decline the request where it would be inappropriate given the stage of the
proceedings, the rights of the accused, the interests of the witnesses, the need for a fair, impartial
and expeditious trial.98 Here, the Pre-Trial Chamber should assess each request with the
accused’s right to a speedy trial in mind, as the possibility for violating his due process right is
heightened given the number of victims associated with this case.


95
     ICC Rules of Procedure, Rule 85.
96
     ICC Rules of Procedure 91(3)(a) and (b).
97
  5'*2#6&3*'$8J$!"*0-2$F&;-(<-$:I/1*, ICC-01/04-01/06, “Decision on the Schedule and Conduct of the
Confirmation Hearing,” at p. 4 (7 November 2006).

98
     Rules of Evidence and Procedure 91(3).


                                                    31
VI. Conclusion

     For the foregoing reasons the Defence, respectfully requests that this Honorable Court:

     I.     DECLARE that the blockade of the Port of Gyst did not constitute an act of
            aggression.
     II.    DECLARE that the blockade is not a manifest violation of the UN Charter and
            therefore there are not substantial grounds to believe the crime of aggression was
            committed.
     III.   DECLARE that John Evans, having no official role in the Ulvan government,
            was not in effective control of the political and military actions of Ulva.
     IV.    DECLARE that exercising jurisdiction is inappropriate as John Evan’s human
            rights and due process rights have egregiously been violated by his unlawful
            arrest and the error committed by the National Court of Arduum.
     V.     DECLARE that if John Evans is found to be in effective control, that he enjoys
            immunity from prosecution because of his position within the government.
     VI.    DECLARE that the participation of victims in the proceedings be limited to those
            inhabitants of Brisk which can adequately show the manner in which the blockade
            has affected them.




                                             32
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