T 32P

6TH RMLNLU SCC ONLINE INTERNATIONAL MEDIA LAW MOOT 2018
TEAM CODE: T-32
THE INTERNATIONAL CRIMINAL COURT
AT THE HAGUE, NETHERLANDS
BEFORE THE TRIAL CHAMBER
“THE CASE CONCERNING THE RED BROADCASTS”
(Under Article 13(b) of the Rome Stature)
PROSECUTOR …….. Prosecution

v.
HIS ROYAL HIGHNESS,

FELOCIOUS VON TRAPTA AND
VALFUS VON TRANSAL ……... Defendants
MEMORIAL FOR THE PROSECUTION
6TH RMLNLU SCC ONLINE INTERNATIONAL MEDIA LAW MOOT,

2018
MEMORANDUM ON BEHALF OF THE PROSECUTION

TABLE OF CONTENTS
A. TABLE OF CONTENTS……………………………………………………………….............. i
B. LIST OF ABBREVIATIONS…………………………………………………………………... ii
C. INDEX OF AUTHORITIES…………………………………………………………………… iii
D. STATEMENT OF JURISDICTION…………………………………………………………... vi
E. STATEMENT OF FACTS……………………………………………………………………... vii
F. ISSUES RAISED………………………………………………………………………………... ix
G. SUMMARY OF ARGUMENTS……………………………………………………….............. x
H. ARGUMENTS ADVANCED…………………………………………………………………... 1
1. THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN THE PRESENT 1

MATTER
2. HIS ROYAL HIGHNESS OF SØMLAND CANNOT BE GRANTED IMMUNITY 6
FROM PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE
3. MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE GUILTY OF WAR 9
CRIMES, CRIMES AGAINST HUMANITY AND GENOCIDE
4. MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST HUMANITY AND 13

A WAR CRIME BY VIRTUE OF HIS SPEECH
I. SUBMISSIONS TO THE COURT 18

i
LIST OF ABBREVIATIONS
¶ Paragraph
Art. Article
Doc. Document
DCC Dragoonia Casting Corporation
Ed. Editor
EEEKD The Exalted Empire of the Ecclesiastical and
Confederating Kingdoms of Dragoonia
Eg. Example
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
KCS The Kingdom and Commonwealth of Sømland
KLF Keljuk Liberation Army
No. Number
OTP Office of the Prosecutor
SCC Sømian Casting Corporation
UN United Nations
UNGA United Nations General Assembly
UNSC United Nations Security Council
v. Versus
VCLT Vienna Convention on the Law of Treaties

ii
INDEX OF AUTHORITIES
Books and Articles
 M. Di Filippo, "Terrorist crimes and international co-operation: critical remarks on the

definition and inclusion of terrorism in the category of international crimes", 19 European
Journal of International Law 533, 567-568 (2008)…………………………………….….4
 P. Burns, "Aspect of Crimes Against Humanity and the International Criminal Court - A
paper prepared for the Symposium on the International Criminal Court, February 3 – 4,
2007; Beijing…………………………………………………………………………….4
 HAZEL FOX, THE LAW OF STATE IMMUNITY (2002)……………………………..8
 Dapo Akande, International Law Immunities and the International Criminal Court, 98
Am. J. Int'l L. 407 (2004)………………………………………………………………….8
 Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 JICJ 315,
323………….……………………………………………………………………………10
 David Scheffer, Corporate Liability under Rome Statute, 57 Harvard International Law Journal 35 (2016)
 Harmen van der Wilt, Corporate Criminal Responsibility for International Crimes: Exploring the
Possibilities, 12 Chinese J. Int'l L. 43 (2013) …………………………………………………12
 Nadia Bernaz, Corporate Criminal Liability under International Law, 13 Journal of Internal Criminal
Justice 313 (2015) …………………………………………………………………………12
 Julia Graff, Corporate War Criminals and International Criminal Court: Blood and Profits in the
Democratic Republic of Congo, 11 Human Rights Brief 23, 25 (2004).
………………………………12
Cases
 Case No. ICTR-95-1-T (ICTR T. Ch., Judgment, 21 May 1999)………………………....2

 Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Judgement, 2 September 1998)………5
 Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T (Judgment, 17 January
2005)................................................................................................................................4
 Prosecutor v. Blaskic, Case No. IT-95-14-T (Judgement, 3 March 2000)……………….5
 Prosecutor v. Duško Sikirica, Damir Došen, Dragan Kolundžija, Case No. IT-95-8-T...2

iii
 Prosecutor v. Germain Katanga, ICC-01/04-01/07-717 (Pre-Trial Chamber I, Decision

on the confirmation of charges)…………………………………………………………...6
 Prosecutor v. Goran Jelisić, Case No. IT-95-10-A…………………………………….1, 2
 Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08…………………………….3
 Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23/1-T (Judgement, 22
February 2001) ……………………………………………………………………………3
 Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A (Appeal Judgement, 12
June 2002)………………………………………………………………………………...3
 Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T (ICTR T. Ch., Judgment, 15
May 2003)…………………………………………………………………………………2
 Prosecutor v. Radislav Krstić, Case No. IT-98-33-A…………………………………..1, 2
 Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T…………………………………..2
 Prosecutor v. Seromba (ICTR T. Ch., 13 December 2006)………………………………2
 Prosecutor v. Stakic, Case No. IT-97-24-T (Judgement, 31 July 2003)…………………..3
 Prosecutor v. Tadic, Case No. IT-94-1-T (Judgement, 7 May 1997)……………………4
 Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A………………………………….2
 Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of
Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009………………………….6
 Prosecutor v. Alfred Musema, ICTR-96-13-A………………………………………….13

 Prosecutor v. Tihomir Blaskic, IT-95-14……………………………………………..…13
 The Zyklon B. Case (1946) ……………………………………………………………..12
 Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11 (January
23, 2012) ………………………………………………………………………………12
 Prosecutor v. Taylor, SCSL-03-01-A (2013) ……………………….….………………12
 Prosecutor v. Kamuhanda, ICTR-99-54A-A (19 September 2005) ….…………………12
 Prosecutor v. Popovic et al, IT-05-88-T (10 June 2010) ………………………………12
 Prosecutor v. Strugar, IT-01-42-A (17 July 2008) ……………………………………12
 Prosecutor v. Galic, IT-98-29-A (30 November 2006) …………………………………12
 Prosecutor v. Kor die and Cerkez, IT-95-14/2-A (17 December 2004) ………………12

iv
 Prosecutor v. Furundzija, IT-95-17/1 (10 December 1998). …………………………..12
Legal Acts and Rules
 Rome Statute, 1998

 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, 1949…………………………………………………….…….3
 Geneva Convention II for the Amelioration of the Condition of the Wounded and Sick
and Shipwrecked Members of Armed Forces at Sea, 1949……….………………………3
 Geneva Convention III relative to the Treatment of Prisoners of War, 1949…………….3
 Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War,
1949…….………………………………………………………………………………….3
 United Nations Treaty Series, volume 75………………………………………………..3
 Additional Protocol I to the Geneva Conventions Relating to the Protection of Victims of
International Armed Conflicts, 1977………..……………………………………………3
 Additional Protocol II to the Geneva Conventions Relating to the Protection of Victims
of Non-International Armed Conflicts, 1977………..……………………………………4
 Charter of the United Nations………..……………………………………………………6
Dictionaries
1. BA Garner, Black‟s Law Dictionary (7th edn West Group St. Paul, Minn., 1999)…….6
2. Shorter Oxford English Dictionary (5th edn OUP, oxford 2003)………………………2
Other Sources
 Yearbook of International Law Commission, 1996, vol. 2, part 2, 46…………………2

 UNGA Res 37/123D (1982)……………… …………………………………………...…2
 Negotiated Relationship Agreement between the International Criminal Court and the
United Nations, 22 July 2004, ICC-ASP/3/Res.1…………………………………………7

v
STATEMENT OF JURISDICTION
The Hon’ble International Criminal Court has jurisdiction to try the instant matter under Article
13 (b) of the Rome Statute of International Criminal Court.
Article 13: Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in
accordance with the provisions of this Statute if:
a) A situation in which one or more of such crimes appears to have been committed is
referred to the Prosecutor by a State Party in accordance with article 14;
b) A situation in which one or more of such crimes appears to have been committed is
referred to the Prosecutor by the Security Council acting under Chapter VII of the
Charter of the United Nations; or
c) The Prosecutor has initiated an investigation in respect of such a crime in accordance
with article 15.

vi
STATEMENT OF FACTS
 The Kingdom and Commonwealth of Sømland (herein after referred to as “Sømland”) is

a developed democratic country following the doctrine of laissez faire. Being a
democratic country, the King is only a titular head but exercises influence on the
outcomes of critical issues in the country.
 Sømland was once a principality of the Exalted Empire of the Ecclesiastical and
Confederating Kingdoms of Dragoonia (herein after referred to as “Dragoonia”) and
therefore, both the countries have a shared common history albeit with marked difference
in compositions and populations. In light of a friendly relationship having developed
between the countries in recent times, Dragoonia has removed several trade restrictions
on Sømland inter alia allowing the initiation of 100% FDI in the media and broadcasting
sector.
 SCC is a state run news corporation of Sømland which takes independent decisions,
without any intervention from the government, even though the King is the principal
shareholder. The Chief Executive of SCC, Felocious Von Trapp decided to invest in
Dragoonia through a local incorporated in accordance with the laws of Dragoonia called
DCC. An independent team under Zulfedich Zignoria Haslaf was appointed for the
management of DCC by Mr. Trapp who continued to be the Chief General Editor of
DCC.
 One of the shows produced by DCC was the ‘The Pride of the Masons” highlighted the
creation of Sømland. As the show received great publicity, a web broadcasting channel
having a feature where a three minute video could be uploaded by any user was launched
by the company. Despite receiving a warning from the Loyal Voice and Expression
Regulatory Board (hereinafter referred to as “the Board”), the censorship board of
Dragoonia, regarding the content of the show, the show was continued unabated by the
DCC.
 Valfus Von Transal, a Somian national of Keljuk ethnicity, aired multiple videos calling
for a revolution to break Dragoonia to pieces and became a well-known voice. Mr.
Transal set up the “Government of Keljukistan in Exile” which gave impetus to the

vii
Keljukian sentiment and incidents of violence were seen in the Keljukian majority
fiefdom of Zapahara bordering Dragoonia as well as in Sømland leading to deaths.
 In response to a video uploaded by Transal calling for unification of the Keljuks to end
the imperialism in Dragoonia, a small group of students formed the Keljuk Liberation
Army (KLF) in Dragoonia.
 The Board issued a notice banning the show and the channel was discontinued in
Dragoonia. Additionally, show cause notices were issued to Mr. Haslaf, Mr. Trapp and
SCC for les majaste laws and sedition. The DCC was declared as an anti-national
organization with its license being suspended and the assets being nationalized which was
condemned by Sømland. This led to destruction of diplomatic relations between the
countries.
 KLF grew in numbers and Mr. Transal was suspected to have crossed in to Zapahara by
the Dragoonian Intelligence. KLF was widely considered to be responsible for the
assassination of government officials primarily of Tamaris ethnicity which led to the
Royal Dragoonian Army launching “Operation Ragnarok” in Zapahara. While chasing
Transal and other leaders of KLF, the Dragoonian Troops with other Keljukians broke the
Somian border posts to which the Army of Sømland retaliated by launching operation
“Operation Dead Dragon”.
 As a result, a state of war erupted between both the countries and Sømland was overrun
by Dragoonia and was forced to surrender. The actions of Dragoonia were condemned by
UNSC which caused Dragoonia to withdraw their troops. However, Dragoonia refused to
surrender the King, Mr. Trapp and Mr. Transal, who were now in their custody. As a
result of negotiation, the Dragoonian forces agreed to withdraw and handover the
Government to the Crown Prince who was forced to sign a treaty expressing his consent
to the King, Mr. Trapp and Mr. Transal being handed over to the ICC. In order to pacify
the situation, the matter was referred to the ICC by the UNSC.

viii
ISSUES RAISED
-I-
WHETHER THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN

THE PRESENT MATTER?
-II-
WHETHER HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED

IMMUNITY FROM PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE?
-III-
WHETHER MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE

GUILTY OF WAR CRIMES, CRIMES AGAINST HUMANITY AND
GENOCIDE?
-IV-
WHETHER MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST

HUMANITY AND A WAR CRIME BY VIRTUE OF HIS SPEECH?

ix
SUMMARY OF ARGUMENTS
I. THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN THE

PRESENT MATTER
Jurisdiction of the ICC has the following four facets which denote the competence of
the ICC to deal with a matter under the Rome Statute (hereinafter referred to as “the
Statute”): (i) jurisdiction ratione materiae (subject-matter); (ii) jurisdiction ratione
termporis (temporal); and (iii) jurisdiction ratione loci or personae (territorial or
personal). However, if a situation is referred by the United Nations Security Council
under Article 13(b) of the Statute then it qualifies as an exception to the requirement
of establishing the temporal or personal jurisdiction of the ICC. In the present matter,
the UNSC, vide its Resolution “Red Resolved”, referred the matter to the ICC and
therefore, the ICC has power to exercise jurisdiction in the present matter pursuant to
establishment of: (i) jurisdiction ratione materiae; (ii) jurisdiction rationae temporis;
and (iii) non-state parties being subject to the jurisdiction of the ICC on referral by
the UNSC.
II. HIS ROYAL HIGHNESS OF SØMLAND CANNOT BE GRANTED

IMMUNITY FROM PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE
His Royal Highness of Sømland is the King of Sømland and by virtue of this position,
his Royal Highness was in a position to control the crimes of genocide, crimes against
humanity and war crimes and did not do so. It is the submission of the counsels for
the prosecution that, His Royal Highness cannot be granted immunity from
prosecution by virtue of his royal office as: (i) His Royal Highness was in a position
to control the crimes; (ii) Rome statute provides for irrelevance of official capacity
and (iii) It is a referral by the UNSC.

x
III. MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE GUILTY
OF WAR CRIMES, CRIMES AGAINST HUMANITY AND GENOCIDE
The corporate officials in-charge of the affairs of the corporation can be held liable
for the crimes perpetrated through the corporation. Mr. Trapta refused to pull down
the videos which instigated ethnic violence in Dragoonia. In the absence of a platform
to upload such videos or timely actions by the SCC against such videos, the
commission of such crimes in the territory of Dragoonia could have been controlled.
Therefore, the omission to act on the part of Mr. Trapta as the in-charge of content for
DCC and SCC provided assistance to the perpetrators in commission of the crimes.
King is capable of exercising control over the actions of Mr. Trapta in his capacity as
the in-charge of content of SCC and DCC. The failure of the King to prevent the
commission of crime despite knowledge of the same makes him liable for the crimes
under Article 28(b). Therefore, Mr. Trapta and His Highness Royal Highness are
liable by virtue of their role in the DCC and SCC.
IV. MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST

HUMANITY AND A WAR CRIME BY VIRTUE OF HIS SPEECH
The video blogs that were uploaded by Transal fulfil all the three elements of the
crime of incitement of genocide that are the mens rea element, the public element and
the directness element. As the video blogs were uploaded with the intent to incite
people to commit the crime of genocide, further, the video blogs had a huge following
and also there were attacks that were made post the video blogs being made and thus,
satisfying all the three elements. The videos also were not violative of his freedom of
speech and expression as the right is not absolute and they fall within the exceptions.

xi
ARGUMENTS ADVANCED
1. WHETHER THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN THE

PRESENT MATTER?
Jurisdiction of the ICC has the following four facets which denote the competence of the ICC
to deal with a matter under the Rome Statute (hereinafter referred to as “the Statute”): (i)
jurisdiction ratione materiae (subject-matter); (ii) jurisdiction ratione termporis (temporal);
and (iii) jurisdiction ratione loci or personae (territorial or personal). However, if a situation
is referred by the United Nations Security Council under Article 13(b) of the Statute then it
qualifies as an exception to the requirement of establishing the temporal or personal
jurisdiction of the ICC. In the present matter, the UNSC, vide its Resolution “Red Resolved”,
referred the matter to the ICC and therefore, the ICC has power to exercise jurisdiction in the
present matter pursuant to establishment of: (i) jurisdiction ratione materiae; (ii) jurisdiction
rationae temporis; and (iii) non-state parties being subject to the jurisdiction of the ICC on
referral by the UNSC.
1.1. The ICC has jurisdiction ratione materiae in the present matter
Subject matter jurisdiction is the cause, the object in dispute. Subject matter jurisdiction
is the authority of a court to hear cases relating to a specific subject matter. Lack of
subject matter jurisdiction cannot be waived, unlike personal or territorial jurisdiction.
The subject matter jurisdiction of the ICC involves 4 categories of international crimes:
(i) Crime of genocide; (ii) Crimes against humanity; (iii) War crimes; and (iv) Crime of
aggression.
1.1.1. Crime against humanity

In accordance with Article 7(1) and 7(2) (a) of the Statute and the Elements of
Crimes, all crimes against humanity require certain contextual elements to be
satisfied: (i) an attack against the civilian population took place; (ii) such attack was
widespread or systematic; and (iii) such attack was committed pursuant to or in
furtherance of a State or organizational policy to commit such attack.

1
The chapeau of article 7(1) of the Statute defines crimes against humanity as any of
the acts specified therein, when committed as part of an attack "directed against any
civilian population". It has to be demonstrated, to the standard of proof applicable,
that the attack was directed against the civilian population as a whole and not
merely against randomly selected individuals.1 The attack against any civilian
population must be committed "pursuant to or in furtherance of a State or
organizational policy to commit such attack".2 "Policy to commit such an attack"
requires that the State or organization actively promote or encourage such an attack
against a civilian population. The policy need not be explicitly defined by the
organisational group. Indeed, an attack which is planned, directed or organised - as
opposed to spontaneous or isolated acts of violence - will satisfy this criterion.3
Whether a group qualifies as an organization under the Statute has to be decided
taking into account number of considerations.4 An act listed under Article 7(1) of
the Statute constitutes a crime against humanity only when committed as a part of a
widespread or systematic attack directed against any civilian population.
Widespread attack has been defined5 as encompassing the large scale nature of the
attack, which should be massive, frequent, carried out collectively with considerable
seriousness and directed against a multiplicity of victims.6 In order to determine
1
Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08; Prosecutor v. Stakic, Case No. IT-97-24-T,
Judgement, 31 July 2003, para. 627; ICTY, Prosecutor v. Kunarac et al. Case No. IT-96-23 & IT-96-23/1-A, Appeal
Judgement, 12 June 2002; Prosecutor v. Kunarac et al. Case No. IT-96-23-T & IT-96-23/1-T, Judgement, 22
February 2001, para. 425; Article 3 Common to the 1949 Geneva Conventions; Article 4 of the Convention (III)
Relative to the Treatment of Prisoners of War, 12 August 1949, United Nations Treaty Series, volume 75, p. 135;
Articles 43 and 50 of Protocol Additional I to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Statute, Article 7(2)(a).
2
Article 7(2)(a), Rome Statute.
3
76 Pre-Trial Chamber I, Decision on the confirmation of charges, ICC-01/04-01/07-717, para. 396
4
Article 1(1) of the Protocol II Additional to the Geneva Conventions of 12 August 1949, 8 June 1977; M. Di
Filippo, "Terrorist crimes and international co-operation: critical remarks on the definition and inclusion of terrorism
in the category of international crimes", 19 European Journal of International Law 533, 567-568 (2008); P. Burns,
"Aspect of Crimes Against Humanity and the International Criminal Court - A paper prepared for the Symposium
on the International Criminal Court, February 3 – 4, 2007; Beijing, China" online, at:
http://www.icclr.law.ubc.ca/Site%20Map/ICC/AspectofCrimesAgainstHumanity.pdf
5 Shorter Oxford English Dictionary (5th edn OUP, oxford 2003).
6
Jean-Pierre Bemba Gombo, Jean-Pierre Bemba Gombo; Prosecutor v. Tadic, Case No. IT-94-1-T, Judgement, 7
May 1997, para. 648; Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, Judgment, 17 January 2005, para.
545; Prosecutor v. Germain Katanga, ICC-01/04-01/07-717 (Pre-Trial Chamber I, Decision on the confirmation of
charges); ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998, para. 580; ICTY,
Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000, para. 203; Prosecutor v. Goran Jelisić (Case
No. IT-95-10-A); Prosecutor v. Goran Jelisić (Case No. IT-95-10-A).

2
whether an act falls within the scope of Article 7(1) of the Statute forms part of an
attack, the nature, aims and consequences of the act must be considered.
1.1.2. Crime of Genocide

The crime of genocide under Article 6 of the Rome Statute must be proved in
accordance with the corresponding Elements of Crime. Article 6 requires that intent
to destruct must be proved as a pre-requisite for establishing the commission of the
crime of genocide. In order to determine the threshold to establish intent, a majority
of the Chambers of the ad hoc tribunals resort to terms which imply a volitional
standard: the perpetrator “seeks to achieve” the destruction7 or he must have had the
goal of destroying the group8. The ILC expressed a similar view when it found that
“a general awareness of the probable consequences” of a genocidal act was not
sufficient. It is well accepted that the intended destruction must refer at least to a
“substantial part” of the relevant group.9 However, the determination of
‘substantiality’ causes interpretive problems to the tribunals and commentators. In
international case law, three general methods have been established to evaluate
substantiality: the numerical10, the functional11 and the geographical approaches.12
The Elements of Crime clarify that the ‘group element’ carries significance both for
the objective and the subjective part of the crime. On the objective side, the victim
of the perpetrator’s conduct must belong to a “particular national, ethnical, racial or
religious group”; on the subjective side, the perpetrator must have had the intent “to
destroy, in whole or in part” a group of this kind.13
7
Prosecutor v. Goran Jelisić (Case No. IT-95-10-A).
8
Prosecutor v. Radislav Krstić (Case No. IT-98-33-T).
9
Prosecutor v. Radoslav Brđanin (Case No. IT-99-36-T); YILC, 1996, vol. 2, part 2, 45, para. 8; Prosecutor v.
Radislav Krstić (Case No. IT-98-33-A).
10
(Case No. ICTR-95-1-T), ICTR T. Ch., Judgment, 21 May 1999.
11
Prosecutor v. Radoslav Brđanin (Case No. IT-99-36-T); Prosecutor v. Radislav Krstić (Case No. IT-98-33-A);
Prosecutor v. Zdravko Tolimir (Case No. IT-05-88/2-A); Prosecutor v. Goran Jelisić (Case No. IT-95-10-T);
(Prosecutor v.Zdravko Tolimir (Case No. IT-05-88/2-T).
12
UNGA Res 37/123D (1982); YILC, 1996, vol. 2, part 2, 45, Article 17, para. 8; Prosecutor v. Krstić, ICTY T.
Ch., 19 April 2004; Prosecutor v. Duško Sikirica, Damir Došen, Dragan Kolundžija (Case No. IT-95-8-T).
13
Prosecutor v. Laurent Semanza (Case No. ICTR-97-20-T), ICTR T. Ch., Judgment, 15 May 2003, para. 317;
Prosecutor v. Seromba, ICTR T. Ch., 13 December 2006, para. 318.

3
1.1.3. War Crimes

A war crime is committed if there is a nexus between the criminal act in question
and the armed conflict. The Elements of Crimes require that the conduct in question
takes place in the context of and was associated with an armed conflict. In this
respect, the Chamber follows the approach of the jurisprudence of the ICTY,14
which requires the conduct to have been closely related to the hostilities occurring
in any part of the territories controlled by the parties to the conflict. The armed
conflict need not be considered the ultimate reason for the conduct and the conduct
need not have taken place in the midst of battle. Nonetheless, the armed conflict
must play a substantial role in the perpetrator’s decision, in his or her ability to
commit the crime or in the manner in which the conduct was ultimately committed.
In the present matter, the cause for the incidents of violence witnessed in Dragoonia can be
found in the show, “The Pride of the Masons”, and the web broadcasting channel which
allowed incitement of the ethnic groups in Dragoonia. The elements of the crimes under the
jurisdiction of the ICC, namely, crimes against humanity, genocide and war crime, are
present in the actions of the perpetrators of the violent demonstrations which erupted in
several parts of Dragoonia, the assassination of the government officials of Dragoonia with
the same modus operandi reflective of an organized attack and the violent clash between the
Dragoonian army and the KLF card holder Keljuks in the province of Zapahara which led to
a situation of armed conflict between Dragoonia and Sømland.
1.2. The ICC has jurisdiction ratione temporis in the present matter
Article 11 deals with the temporal jurisdiction of the ICC which provides that the Statute
is applicable only in cases where the alleged crimes punishable under the Statute are
committed in a State after the entry into force of the Statute with respect to that State.
However, in case of a referral by the UNSC under Article 13(b), the ICC assumes
jurisdiction over all crimes committed after the Statute came into force on July 01, 2002.
14
Prosecutor v. Dusko Tadić, Case No. IT-94-1-A (Appeal Judgement, 2 October 1995); Prosecutor v. Radoslav
Brđanin, Case No. IT-99-36-T (Trial Judgement, 1 September 2004).

4
1.3. Non-state parties are subject to the jurisdiction of the ICC on referral by the UNSC
The requirement of jurisdiction rationae personae15 and rationae loci16 has to be
fulfilled in the alternative. In order to enable the ICC to exercise jurisdiction, Article
12(2) requires either the territorial State or the nationality State to be among the State
Parties. However, this requirement need not be fulfilled when a situation has been
referred by the UNSC under Article 13(b) of the Statute. The ICC can, when authorised
by the Security Council, exercise jurisdiction over crimes committed on the territory of
non-Party States. Article 12 demonstrates an apparent respect for the sovereignty of
States and confirms the role of the principle of State sovereignty as a limiting factor for
the jurisdiction of the ICC. Thus, Article 12 is the result of a “compromise between State
sovereignty and the needs of international justice”. In the ICC Statute’s current structure
State sovereignty, as underlined in particular in Article 12(2)–(3), may be pierced only
by the referral of a situation to the prosecutor by the United Nations Security Council,
pursuant to Article 13(b).
The Security Council acting under Chapter VII of the UN Charter, that is, with an
intention to protect international peace and security,17 can provide the ICC with
jurisdiction in the case of crimes committed on the territory of non-States Parties if such
non-State Parties are signatory to the Charter of the United Nations. By virtue of their
obligations arising from the Charter and an acknowledgement of the fundamental role of
the Security Council to confront situations of threats to the peace, breaches of the peace
and acts of aggression, the non-State Parties are bound by the referral of the Security
Council. Therefore, the requirement in Article 12(2) on acceptance by States Parties only
applies to cases when a situation is referred to the Prosecutor by a State Party or where
the Prosecutor has initiated an investigation proprio motu.
Hence, it is submitted that the ICC has jurisdiction to adjudicate over the instant matter as all the
components denoting the competence of the ICC to exercise jurisdiction have been satisfied.
15
Article 12(2)(a), Rome Statute.
16
Article 12(2)(b), Rome Statute.
17
Charter of the United Nations, (adopted 26 June 1945, entered into force 24 October 1945) 59 Stat 1031, TS 993,
3 Bevans 1153, art 39.

5
2. WHETHER HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED

IMMUNITY FROM PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE?
His Royal Highness of Sømland is the King of Sømland and by virtue of this position, his
Royal Highness was in a position to control the crimes of genocide, crimes against
humanity and war crimes and did not do so. It is the submission of the counsels for the
prosecution that, His Royal Highness cannot be granted immunity from prosecution by
virtue of his royal office as: (i) His Royal Highness was in a position to control the
crimes; (ii) Rome statute provides for irrelevance of official capacity and (iii) It is a
referral by the UNSC.
2.1. His Royal Highness was in a position to control and restrict the crimes
Sømland is a democratic country.18 A democracy is form of government in which the
sovereign power resides in and is exercised by the whole body of free citizens; as
distinguished from a monarchy, aristocracy, or oligarchy.19 Even though His Royal
Highness, the king, is apolitical and a nominal head, he continues to receive
obedience in all spheres of life. In past, he has intervened in major decision making
when Sømland was facing issues like racial apartheid, minority persecution and
questions of war and peace.20
2.2. His Royal Highness cannot be shielded by impunity of his royal office
2.2.1. It is a UNSC Referral
The Court can exercise jurisdiction over an incumbent Head of State of a non-
signatory if the situation is being referred by the Security Council.
The Pre-Trial Chamber held in its decision on the arrest warrant of Al Bashir
that, the current position of Omar Al Bashir as Head of State of a State which is
not a party to the Statute, has no effect on the Court’s jurisdiction over the present
case.21 ICC only had jurisdiction because, as a rule of customary international
law, head of State immunity did not protect perpetrators of international crimes
18
Moot proposition, ¶ 1.
19
Blacks Law Dictionary.
20
Moot proposition, ¶ 1.
21
Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest against Omar
Hassan Ahmad Al Bashir, 4 March 2009, para 41.

6
before international courts. Hence, a referral by the UNSC overrides customary

rules on immunity.
In the case of Al Bashir, UNSC accepted that investigations and prosecutions
from the Darfur situation would take place in accordance with the statutory
framework provided for in the Statute, the Elements of Crimes and the Rules
as a whole.
The referral of a situation to the ICC is a decision to confer jurisdiction on the
ICC, in circumstances where such jurisdiction otherwise does not exist. The
decision is made under Chapter VII of the UN Charter and by Article 25 of
the Charter stating that 'Members of the United Nations agree to accept and
carry out the decisions of the Security Council…’. In the Negotiated
Relationship Agreement between the International Criminal Court and the
United Nations, the UN vows to do its best to waive any such immunity,
should they bar the ICC from exercising its jurisdiction effectively. 22
States legally bound to accept that the Court has jurisdiction in the
circumstance in which the UNSC has conferred jurisdiction. Article 25 of the
UN Charter estops them, as a matter of law, from taking a contrary position.
Moreover, since the jurisdiction and functioning of the ICC must take place in
accordance with the Statute, a decision to confer jurisdiction is a decision to
confer it in accordance with the Statute. Thus, all states, including non-parties
are bound to accept that the Court can act in accordance with its Statute. Thus,
non-party to the Statute is bound by the Statute in the case of a referral - in the
sense that it is bound to accept the jurisdiction of the Court and legality of the
Court's operation in accordance with its Statute.
The Security Council's decision to confer jurisdiction on the ICC, being
(implicitly) a decision to confer jurisdiction in accordance with the Statute,
must be taken to include every provision of the Statute that defines how the
exercise of such jurisdiction is to take place.
22
Negotiated Relationship Agreement between the International Criminal Court and the United Nations, 22 July
2004, ICC-ASP/3/Res.1, art 19.

7
Since Sømland is bound by Article 25 of the UN Charter and implicitly by

UNSC Resolution 1593 to accept the decisions of the ICC, Sømland is in an
analogous position to a party to the Statute. The only difference is that
Sømland’s obligations to accept the provisions of the Statute are derived not
from the Statute directly, but from a UN Security Council resolution and the
UN Charter.
2.2.2. Rome statute provides for irrelevance of official capacity

The statute addresses the position of state officials in relation to ICC and
states that the statute applies equally to all persons irrespective of their official
capacity. Official capacity as a Head of State or Government shall in no case
exempt a person from criminal responsibility, nor shall it, in and of itself,
constitute a ground for reduction of sentence.23 The official capacity of a
person does not relieve him of individual criminal responsibility and it
eliminates a substantive defense that may be put forward by state officials.24
By providing that the ICC Statute applies to state officials, Article 27(1)
establishes that those officials are subject to prosecution by the ICC even
when they acted in their official capacity. Article 27 (1) is also jurisdictional
in nature. Not only does the second sentence implicitly exclude immunities
based on the official nature of the act; the first sentence also implicitly
establishes that the official status of defendants does not exclude them from
the jurisdiction of the ICC.
Article 27(2) contains an explicit denial of international and national law
immunities. Article 27(2) conclusively establishes that state officials are
subject to prosecution by the ICC and that provision constitutes a waiver by
states parties of any immunity that their officials would otherwise possess vis-
t-vis the ICC.25
Article 27 (2) can be applied to nationals of non-party States for the simple
reason that the ‘provision merely restates an existing principle of customary
23
Article 27, Rome Statute.
24
HAZEL FOX, THE LAW OF STATE IMMUNITY (2002) at 429-30.
25
Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int'l L. 407 (2004).

8
international law’. Thus, Article 27 (2) applies even to Heads of State of non-
party States, because it codifies rules of customary international law.26
Thus, it is respectfully submitted by the counsels for the prosecution that even though Sømland is
not a signatory to the ICC statute, the international law immunity of the head of state is removed
as a result of the Statute and the referral by the UNSC.
3. MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE GUILTY OF

WAR CRIMES, CRIMES AGAINST HUMANITY AND GENOCIDE
Article 25(1) provides that the ICC has jurisdiction over natural persons, which is an indirect
way of clarifying that the Court does not have jurisdiction over corporate bodies. Therefore,
DCC cannot be held liable for the crimes perpetrated through the show and the web
broadcasting channel. However, the corporate officials in-charge of the affairs of the
corporation can be held liable for the crimes perpetrated through the corporation.27 Therefore,
Mr. Trapta and His Highness Royal Highness are liable by virtue of their role in the DCC and
SCC.
3.1. Mr. Trapta is guilty of the crimes alleged under the Statute
Mr. Trapta has aided the commission of crimes under the Statute by broadcasting the
show, “The Pride of the Masons” and by allowing seditious content to be hosted on the
web broadcasting channel launched through SCC. Attribution of criminal responsibility
to Mr. Trapta under article 25(3)(c) of the Statute requires the fulfillment of the
following elements: (i) contribution, in terms of aiding, must meet a qualitative and
quantitative threshold; and (ii) act of complicity is for the purpose of facilitating the
commission of the crime.
26
Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 JICJ 315, 323.
27
The Zyklon B. Case (1946); Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11
(January 23, 2012); Prosecutor v. Taylor, SCSL-03-01-A (2013); David Scheffer, Corporate Liability under Rome
Statute, 57 Harvard International Law Journal 35 (2016); Harmen van der Wilt, Corporate Criminal Responsibility
for International Crimes: Exploring the Possibilities, 12 Chinese J. Int'l L. 43 (2013); Nadia Bernaz, Corporate
Criminal Liability under International Law, 13 Journal of Internal Criminal Justice 313 (2015); Julia Graff,
Corporate War Criminals and International Criminal Court: Blood and Profits in the Democratic Republic of
Congo, 11 Human Rights Brief 23, 25 (2004).

9
3.1.1. Contribution, in terms of aiding, must meet a qualitative and quantitative

threshold
While there is little jurisprudence at this time interpreting articles 25(3)(c) of the
Statute, the application of analogous modes of liability at the ad hoc tribunals
suggests that a substantial contribution to the crime may be contemplated. 28 As held
by Pre-Trial Chamber I in a different case, “in essence, what is required for this
form of responsibility is that the person provides assistance to the commission of a
crime and that, in engaging in this conduct, he or she intends to facilitate the
commission of the crime”. It is not required that the assistance be “substantial” or
anyhow qualified other than by the required specific intent to facilitate the
commission of the crime.29 Endorsing the views of the International Law
Commission, a Trial Chamber of the International Criminal Tribuanl for the former
Yugoslavia said that while the latter provided no definition of ‘substantially’, the
case law requires a contribution that in fact has an effect on the commission of the
crime. The Trial Chamber suggested that participation is substantial if the criminal
act most probably would not have occurred in the same way had not someone acted
in the role that the accused in fact assumed.30 Aiding does not always require a
positive act of an accomplice and may also consist of an omission. 31 In order to
prove that the omission qualifies as aiding, it is necessary to demonstrate that (i) the
omission had a substantial effect on the crime in the sense that the crime would have
been substantially less likely, had the accomplice acted; and (ii) the accomplice
knew that the commission of the crime was probable and his inaction assisted it.32
In the present matter, Felocious von Trapta was the effective and principal force
behind the operations of the SCC. As such DCC, was a 100% owned subsidiary of
the SCC. The DCC organized its own team though substantial guidance and inputs,
28
Prosecutor v. Kamuhanda, ICTR-99-54A-A (19 September 2005); Prosecutor v. Popovic et al, IT-05-88-T (10
June 2010); Prosecutor v. Strugar, IT-01-42-A (17 July 2008); Prosecutor v. Galic, IT-98-29-A (30 November
2006) Prosecutor v. Kor die and Cerkez, IT-95-14/2-A (17 December 2004; Prosecutor v. Furundzija, IT-95-17/1
(10 December 1998).
29
Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15 (24 March 2016)
30
Prosecutor v. Dusco Tadic, IT-94-1-T (May 7, 1997)
31
Prosecutor v. Naser Oric, IT-03-68-A.
32
Prosecutor v. Mrksic and Sljivancanin, IT-95-13/1-A

10
especially editorial and content checks which kept on coming from Sømland. Mr.
Trapta who originally also served as the interim in-charge of the project thereafter
appointed an independent team in Dragoonia under Zulfedich Zignoria Haslaf, a
national of Dragoonia,. However he continued to be the Chief General Editor of the
entire content department for both SCC and DCC. On the web broadcasting channel
launched by SCC which hosted videos uploaded by the users, Transal uploaded
videos which instigated the minority groups, especially Keljuks, to commit crimes
in Dragoonia. As a result of such video, there were violent demonstrations and
clashes in several parts of Dragoonia as well as formation of terrorist organizations.
However, Mr. Trapta refused to pull down the videos which instigated ethnic
violence in Dragoonia. In the absence of a platform to upload such videos or timely
actions by the SCC against such videos, the commission of such crimes in the
territory of Dragoonia could have been controlled. Therefore, the omission to act on
the part of Mr. Trapta as the in-charge of content for DCC and SCC provided
assistance to the perpetrators in commission of the crimes.
3.1.2. Act of complicity is for the purpose of facilitating the commission of the
crime
The mental element in support of this mode of liability rests on the accessory’s
knowledge that his actions assist the principal in the commission of the crime.33 The
principal does not need to be aware of the involvement of the aider. 34 It must be
shown that the aider was aware of the essential constitutive elements of the crime
that was ultimately committed by the principal”.35 However, the aider does not need
to know about the precise crime intended by the principal offender. If he is aware
that one of a number of crimes will probably be committed by the principal
offender, and one of those crimes is in fact committed, then he has intended to assist
or facilitate the commission of that crime, and may be found guilty of “aiding and
abetting”.36
33
Prosecutor v. Anto Furundžija (IT-95-17/1); Prosecutor v. Alfred Musema, ICTR-96-13-A; Prosecutor v.
Kunarac, IT-96-23 & 23/1.
34
Prosecutor v. Dusco Tadic, IT-94-1-T (May 7, 1997).
35
Prosecutor v. Zlatko Aleksovski, IT-95-14/1-T
36
Prosecutor v. Tihomir Blaskic, IT-95-14; Prosecutor v. Blagoje Simic, IT-95-9-T.

11
Mr. Trapta knew the crimes that Mr. Transal was instigating the Keljuks to commit
against Dragoonia and he also has knowledge of the fact that the video assisted
Transal in reaching out to the minority groups in Dragoonia and in case of access
being denied to Transal, he would be unable to propagate his ideas to the minority
groups in Dragoonia at a large scale. Hence, with the purpose of facilitating Mr.
Transal to instigate minority groups in the commission of crimes, Mr. Trapta
allowed continued access to the web broadcasting channel without any restrictions.
3.2. His Royal Highness is liable for the crimes alleged under the Statute
His Royal Highness is liable by virtue of the existence of the superios-subordinate
relationship between him and Mr. Trapta who is liable for the crimes alleged. In order to
establish the liability of His Royal Highness the following elements are required to be
established: (i) existence of a superior-subordinate relationship; (ii) knowledge of the
commission of the crime; and (iii) failure to prevent or punish.
3.2.1. Existence of a superior-subordinate relationship
The first step in the assessment of the existence of a superior–subordinate
relationship, is determining the status of the superior. Secondly, the “principal
crime” has to be identified and evaluated. Thirdly, the status of the subordinate as
well as his or her relation to the “principal crime” has to be assessed. The forth
aspect to consider is the requirements placed on the relationship as such. Finally, the
link between the superior, subordinate and the “principal crime” needs to be tied
together through a causality test.
3.2.2. Knowledge of the commission of the crime
Article 28(b)(i) establishes that the commander either knew or consciously
disregarded information which clearly indicated the commission of the crime. The
“consciously disregarding information which clearly indicated” requirement in
Article 28(b)(i), does however entail a much higher mens rea standard than what is
provided for the doctrine of command responsibility. This new standard has, for
example, been equated to “wilful blindness”, that is, that the superior is aware of a
high probability of the existence of a fact and, yet, he/she decides to “turn a blind
eye” to this fact. As such, it has furthermore been explained that this new criterion
stands somewhere between “actual knowledge” and “recklessness”.

12
3.2.3. Failure to prevent or punish

The corrective measures available to the commander, are both dependent on his or
her de jure and the de facto position of the superior to control his or her
subordinates. The measures need to be commensurate to the superior’s actual
possession of command and control or authority and control. It is hence difficult to
generalise about which measures are necessary and reasonable.
As per the formative documents of the company and legislations there are several clauses which
empower the King as the principal shareholder and the King-in-Council to censure, stop, regulate
or control content in “national interest”, “public good” and in “maintaining good and peaceful
relationships between the Kingdom and other civilized nations”. Therefore, it is established the
King is capable of exercising control over the actions of Mr. Trapta in his capacity as the in-
charge of content of SCC and DCC. The eruption of violence in Dragoonia as a result of the the
videos uploaded uploaded on the web broadcasting channel and the telecase of the show was
well known. Hence, the failure of the King to prevent the commission of crime despite
knowledge of the same makes him liable for the crimes under Article 28(b).
4. WHETHER MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST

HUMANITY AND A WAR CRIME BY VIRTUE OF HIS SPEECH?
Three important dimensions to the crime of incitement to genocide: the mens rea element, the
“public” element, and the “directness” element. Hateful speech not satisfying these elements,
though potentially heinous and inflammatory, is not considered illegal under international
law.
The mens rea element of the crime immediately distinguishes it from protected speech.
Indeed, the mental component of incitement to genocide alone suffices to ensure that
legitimate expression will not be caught by the prohibition.
The mens rea required for the crime of direct and public incitement to commit genocide lies
in the intent to directly prompt or provoke another to commit genocide. It implies a desire on
the part of the perpetrator to create by his actions a particular state of mind necessary to
commit such a crime in the minds of the person(s) he is so engaging. That is to say that the
person who is inciting to commit genocide must have himself the specific intent to commit

13
genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious

group, as such.37
The words used by Transal in his video blog make the dragons bleed red clearly shows that
he intended to cause the people to commit the crime of genocide.38 The words “let the Red
flow” used by Transal inspite of having knowledge of the existence of a state of unrest in
both the countries shows the intent on the part of Transal to incite the people to commit
genocide.39
“Public” refers to any comments spoken in a public place, as well as the International Law
Commission characterization of “public incitement” as occurring where there is “a call for
criminal action to a number of individuals in a public place or to members of the general
public at large by such means as the mass media, for example, radio or television.”40
The videos that were published by Transal were available on a public platform at all times
and he published the videos make genocidal comments not just once but multiple times, thus
reached a large number of people in both the countries. Hence, the video blogs satisfies the
“public” element of incitement of genocide.
Finally, the “directness” element is satisfied where the incitement “specifically provokes
another”, as contrasted with “mere vague or indirect suggestion.”41 The incitement must be
viewed “in the light of its cultural and linguistic content,” and that it would determine this
question by “focusing mainly on the issue of whether the persons for whom the message was
intended immediately grasped the implication thereof.”
Later case law also stressed the need to understand the impugned comments in context in
order to determine whether they constitute “incitement” or not. The ICTR has explained that
context alone can define the line between hateful rhetoric and illegal incitement:
A statement of ethnic generalization provoking resentment against members of that ethnicity
would have a heightened impact in the context of a genocidal environment. It would be more
37
Id., at para. 560.
38
Moot Proposition, ¶ 31.
39
Moot Proposition, ¶ 41.
40
Id. at para. 556.
41
Id. at para. 557.

14
likely to lead to violence. At the same time the environment would be an indicator that
incitement to violence was the intent of the statement.42
There are four specific elements useful in analysing allegedly inciteful content: purpose, text,
context, and the relation of the speaker to the subject.43
With regard to purpose, the determining factor is whether the intent “in publicly transmitting
the material was of a bona fide nature (e.g. historical research, the dissemination of news and
information, the public accountability of government authorities).”44 For instance, a case law
to the effect that when an interviewer takes care to distance himself from the remarks of his
interview subject, it operates as an indicator that the purpose in question was to disseminate
news rather than to propagate racist views.45
The Faurisson case,46 a decision involving a Holocaust denier in which the United Nations
Human Rights Committee considered the meaning of the term “incitement” at Article 20(2)
of the International Covenant on Civil and Political Rights. The Committee focused on the
use of the term “magic gas chamber” in determining that Faurisson was motivated by anti-
Semitism and not the pursuit of historical trust.47
Examination of context involves analysis of how such language is used in the immediate as
well as the historical context, operating to shed light on the words uttered. The European
Court of Human Rights emphasizing how a general statement about massacres needs to be
understood in the context of the massacres taking place at that time. The European Court’s
statement that, understood as such, the speaker’s words were “likely to exacerbate an already
explosive situation……”48
42
Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case no. ICTR-99-62, Judgment and Sentence, 3 December
2003 (the “Media Case”), at para.1022. The Appeals Chamber affirmed the importance of context in evaluating
incitement in its judgment in the same case on 28 November 2007, at paras. 697, 701 and 703.
43
Gregory Gordon, “From Incitement to Indictment?: Prosecuting Iran’s President for Advocating Israel’s
Destruction and Piecing Together Incitement Law’s Emerging Analytical Framework,” (2008) 98:3 Journal of
Criminal Law & Criminology 853, at 874-878.
44
incitement in its judgment in the same case on 28 November 2007, at para. 1001.
45
Ibid. The case being referenced by the Trial Chamber is the Jersild case, decided by the European Court of Human
Rights: Jersild v. Denmark, 19 Eur. Ct. H. R. 1, 27 (1995).
46
Faurisson v. France, CCPR/C/58/D/1993 (1996).
47
48
Id., at para. 1004. The case being referenced by the Trial Chamber is the Zana case: Zana v. Turkey, ECHR,
1997-VII, no. 57.

15
The fourth factor – the relationship of the speaker to the subject – is based on the fact that
“special protections” have been developed in jurisprudence to take into account “the power
dynamic inherent in the circumstances that make minority groups and political opposition
vulnerable to the exercise of power by the majority or by the government.”49 The relevant
issue is not whether the author of the speech is from the majority ethnic group or supports the
government’s agenda (and by implication, whether it is necessary to apply a stricter
standard), but rather whether the speech in question constitutes direct incitement to commit
genocide. On the other hand, the political or community affiliation of the author of a speech
may be regarded as a contextual element which can assist in its interpretation.”50
After Transal posted the video for the first time a Keljukian sentiment developed within the
people and incidents of violence erupted in areas where the Keljukians were in majority.
Inspite of having knowledge that the Keljukian sentiment is gaining impetus, Transal
continued to post videos and thus gained more supporters. Transal then took advantage of the
support that he gained, through his broadcasts and in his subsequent blogs urged his
supporters to commit genocide. Also, a week after his video on 25th February, 2015, attacks
were conducted against the Tamaris ethnicity.
The use of the words “dragons”, “red”, “claws” show that the words of Transal were targeted
to one particular group and wanted the people to commit genocide against them.
The Bikindi decision51 also raised explicitly a tension that underlies many judgments on
incitement to genocide: the appropriate balance between freedom of expression and the
criminalization of genocidal incitement. Recognizing the right to freedom of expression, the
Trial Chamber explained:
However, this right is not absolute. It is restricted by the very same conventions and
international instruments that provide for it. For example, the Universal Declaration of
Human Rights states that everyone should be free from incitement to discrimination.
Similarly, the International Covenant on Civil and Political Rights prohibits war propaganda,
as well as the advocacy of national, racial or religious hatred that constitutes incitement to
49
50
2003 (the “Media Case”), at para.1022.
51
Prosecutor v. Bikindi, Case no. ICTR-01-72-T, Judgment (Trial Chambers), 2 December 2008.

16
discrimination, hostility, or violence, and the International Convention on the Elimination of

All Forms of Racial Discrimination aims to outlaw all forms of expression that explicitly lead
to discrimination. Each of the regional conventions mentioned above also restrict the
freedom of expression: the European Convention on Human Rights recognises that there are
“duties and responsibilities” that accompany the freedom of expression and thus limit its
application; the American Convention on Human Rights allows for legal liability regarding
acts that harm the rights or reputations of others, or that threaten the protection of national
security, public order, or public health or moral and considers as offences punishable by law
any propaganda for war and advocacy of national, racial or religious hatred that constitute
incitements to lawless violence; and the African Charter on Human and People’s Rights
restricts the right to that which is “within the law”. The Chamber notes that the restrictions
on this right have been interpreted in the jurisprudence of the various adjudicating bodies
created from the international and regional instruments above. The Chamber also notes that a
large number of countries have banned the advocacy of discriminatory hate in their domestic
legislation.

17
SUBMISSIONS TO THE COURT
Wherefore, in the light of the issues presented, arguments advanced and authorities cited, the
counsels on behalf of the Prosecution request this Hon’ble Trial Chamber of the ICC to find,
adjudge and declare that:
I. The ICC has the power to exercise jurisdiction in the present matter;
II. His Royal Highness of Sømland cannot be granted immunity from prosecution by
virtue of his Royal Office;
III. Mr. Trapta and His Royal Highness of Sømland are guilty of War Crimes, Crimes
Against Humanity and Genocide;
IV. Mr. Transal is guilty of Genocide, a Crime against Humanity and a War Crime by
virtue of his speech.
All of which is respectfully submitted
Sd/-
Counsels for the Prosecution

18

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6TH RMLNLU SCC ONLINE INTERNATIONAL MEDIA LAW MOOT 2018

TEAM CODE: T-32

THE INTERNATIONAL CRIMINAL COURT

AT THE HAGUE, NETHERLANDS

BEFORE THE TRIAL CHAMBER

“THE CASE CONCERNING THE RED BROADCASTS”

(Under Article 13(b) of the Rome Stature)

PROSECUTOR …….. Prosecution

HIS ROYAL HIGHNESS,

MEMORIAL FOR THE PROSECUTION

6TH RMLNLU SCC ONLINE INTERNATIONAL MEDIA LAW MOOT,

MEMORANDUM ON BEHALF OF THE PROSECUTION

C. INDEX OF AUTHORITIES…………………………………………………………………… iii

E. STATEMENT OF FACTS……………………………………………………………………... vii

1. THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN THE PRESENT 1

4. MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST HUMANITY AND 13

I. SUBMISSIONS TO THE COURT 18

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

Books and Articles

 M. Di Filippo, "Terrorist crimes and international co-operation: critical remarks on the

 Case No. ICTR-95-1-T (ICTR T. Ch., Judgment, 21 May 1999)………………………....2

MEMORANDUM ON BEHALF OF THE PROSECUTION

 Prosecutor v. Germain Katanga, ICC-01/04-01/07-717 (Pre-Trial Chamber I, Decision

 Prosecutor v. Alfred Musema, ICTR-96-13-A………………………………………….13

MEMORANDUM ON BEHALF OF THE PROSECUTION

 Prosecutor v. Furundzija, IT-95-17/1 (10 December 1998). …………………………..12

Legal Acts and Rules

 Rome Statute, 1998

 Yearbook of International Law Commission, 1996, vol. 2, part 2, 46…………………2

MEMORANDUM ON BEHALF OF THE PROSECUTION

Article 13: Exercise of jurisdiction

MEMORANDUM ON BEHALF OF THE PROSECUTION

 The Kingdom and Commonwealth of Sømland (herein after referred to as “Sømland”) is

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

WHETHER THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN

WHETHER HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED

WHETHER MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE

WHETHER MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST

MEMORANDUM ON BEHALF OF THE PROSECUTION

I. THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN THE

II. HIS ROYAL HIGHNESS OF SØMLAND CANNOT BE GRANTED

MEMORANDUM ON BEHALF OF THE PROSECUTION

IV. MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST

MEMORANDUM ON BEHALF OF THE PROSECUTION

1. WHETHER THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN THE

1.1.1. Crime against humanity

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

1.1.2. Crime of Genocide

MEMORANDUM ON BEHALF OF THE PROSECUTION

1.1.3. War Crimes

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

2. WHETHER HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED

MEMORANDUM ON BEHALF OF THE PROSECUTION

before international courts. Hence, a referral by the UNSC overrides customary

MEMORANDUM ON BEHALF OF THE PROSECUTION

Since Sømland is bound by Article 25 of the UN Charter and implicitly by

2.2.2. Rome statute provides for irrelevance of official capacity

MEMORANDUM ON BEHALF OF THE PROSECUTION

3. MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE GUILTY OF