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Team Code- R24

ICC TRIAL CHAMBER

AT THE HAGUE, NETHERLANDS

SITUATION IN THE STATE OF SOFTLAND

IN THE CASE OF

THE PROSECUTOR ...PROSECUTION

V.

MR. SENGOTA ...DEFENCE

PUBLIC DOCUMENT

ON SUBMISSION TO THE TRIAL CHAMBER OF ICC AT THE HAGUE

UNDER ARTICLE 5 OF THE ROME STATUTE OF INTERNATIONAL CRIMINAL LAW

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

THE DEFENCE

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MEMORIAL ON BEHALF OF THE DEFENCE
TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................................... iv

LIST OF ABBREVIATIONS ................................................................................................... vi

STATEMENT OF JURISDICTION........................................................................................vii

STATEMENT OF FACTS .................................................................................................... viii

ISSUES RAISED .....................................................................................................................xii

SUMMARY OF PLEADINGS.............................................................................................. xiii

WRITTEN PLEADINGS .......................................................................................................... 1

1. WHETHER THE ACCUSED HAS BEEN SURRENDERED TO THE COURT ACCORDING TO


THE DUE PROCESS AND WHETHER HE HAS BEEN SUBJECTED TO A FAIR TRIAL
ACCORDING TO THE PRINCIPLES OF NATURAL J USTICE? 1

1.1. HE WAS NOT PRESENTED BEFORE A COMPETENT COURT. 1

1.2. HE WAS NOT GIVEN AN OPPORTUNITY TO EXERCISE HIS RIGHT


UNDER THE PROVISION ENSHRINED IN THE ROME STATUTE OF ICC. 2

2. WHETHER MR. SENGOTA IS GUILTY OF COMMITTING THE WAR CRIME OF


ATTACKING PROTECTED OBJECTS UNDER ARTICLE 8(2)(E)(IV) OF T HE S TATUTE OF
THE ICC ? 4

2.1. MR. SENGOTA NEVER DIRECTED THE ATTACK ON THE TWO


KIMOCHI-TORAMIS. 4

2.2. MR. SENGOTA HAD NEVER INTENDED TO HARM THE KIMOCHI


TORAMIS. 5

2.3. THE ATTACK WAS NOT ASSOCIATED WITH THE ARMED CONFLICT
BETWEEN THE MMR AND SOFTLAND GOVERNMENT FORCES. 6

2.4. THE ATTACK ON THE TWO KIMOCHI-TORAMIS IS NOT PART OF A


PROTRACTED ARMED CONFLICT. 7

2.5. MR. SENGOTA CANNOT BE HELD RESPONSIBLE AS PER THE


PRINCIPLE OF SUPERIOR-SUBORDINATE RELATIONSHIP. 7

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MEMORIAL ON BEHALF OF THE DEFENCE
3. WHETHER C HARGING OF MR. SENGOTA FOR COMMITTING CRIME AGAINST
HUMANITY OF MURDER UNDER ARTICLE 7(1) (A) OF THE S TATUTE OF THE ICC FOR
THE ACTS COMMITTED FROM 08 J ULY TO 15 J ULY 2016 IS J USTIFIED? 10

3.1. THERE IS NO PRIMA FACIE EVIDENCE AGAINST MR. SENGOTA. 10

3.2. THE ATTACK WAS NOT DIRECTED BY MR. SENGOTA. 11

3.3. THERE WAS NO CONDUCT TO SHOW A WIDESPREAD OR


SYSTEMATIC ATTACK BY MR. SENGOTA. 13

PRAYER .................................................................................................................................. 15

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MEMORIAL ON BEHALF OF THE DEFENCE
INDEX OF AUTHORITIES

CASES

Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal


for the former Yugoslavia (ICTY), 15 July 1999 . ................................................................ 5
Prosecutor v. Francis Kirimi Muthaura, ICC-01/09-02/11. , International Criminal Court
(ICC), September 13, 2011 .................................................................................................. 12
Prosecutor v. Hadzihasanovic and Kubura (Appeal Judgment), IT-01-47-A, International
Criminal Tribunal for the former Yugoslavia (ICTY), 22 April 2008 .................................. 9
Prosecutor v. Halilovic (Trial Judgment), IT-01-48-T, International Criminal Tribunal for the
former Yugoslavia (ICTY), 16 November 2005.................................................................... 8
Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08-2138), Trial Chamber, 22 Feb.
2012.................................................................................................................................. 6, 14
Prosecutor v. Pavle Strugar (Trial Judgment), IT-01-42-T, International Criminal Tribunal for
the former Yugoslavia (ICTY), 31 January 2005 .................................................................. 5
Prosecutor v. Thomas Lubanga Dyilo , ICC-01/04-01/06, International Criminal Court
(ICC), 14 March 2012 ............................................................................................................ 3
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang -
Decision on the Application by the Government of Kenya Challenging the Admissibility of
the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-01/11, International
Criminal Court (ICC), 30 May 2011........................................................................ 12, 14, 15
Prosecutor v. Zdravko Mucic aka "Pavo", Hazim Delic, Esad Landzo aka "Zenga", Zejnil
Delalic (Trial Judgement), IT-96-21-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 16 November 1998 ............................................................................. 13
Sylvestre Gacumbitsi v. The Prosecutor (Appeal Judgement), ICTR-2001-64-A, International
Criminal Tribunal for Rwanda (ICTR), 7 July 2006 ........................................................... 15
The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-
T, International Criminal Tribunal for Rwanda (ICTR), 21 May 1999 ............................... 15
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA
8, International Criminal Court (ICC), 25 September 2009 .......................................... 12, 13
The Prosecutor v. Ildephonse Hategekimana, ICTR-00-55B-T, ICTR, 5 May, 2011 ............. 14
The Prosecutor v. Joseph Kony ,ICC-02/04-01/05, International Criminal Court .................... 2

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MEMORIAL ON BEHALF OF THE DEFENCE
The Prosecutor v. Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA 8, International Criminal
Court (ICC), 25 September 2009 ......................................................................................... 13

STATUTES, TREATIES AND CONVENTIONS

 GENEVA CONVENTION OF 1949.


 UNIVERSAL DECLARATION OF HUMAN R IGHTS, 1948.
 EUROPEAN CONVENTION ON HUMAN R IGHTS, 1953.
 ROME S TATUTE OF INTERNATIONAL CRIMINAL C OURT, 1998.
 CONVENTION FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF

ARMED CONFLICT OF 1954.


 CONVENTION ON PROTECTION OF THE WORLD CULTURAL AND NATURAL HERITAGE
OF 1972.

 THE CONVENTION FOR THE SAFEGUARDING OF THE INTANGIBLE CULTURAL


HERITAGE OF 2003.

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MEMORIAL ON BEHALF OF THE DEFENCE
LIST OF ABBREVIATIONS

& And

¶ Paragraph

Art. Article of the Rome Statute of International Criminal Court

Govt Government of Softland

HRM Human Rights Monitor

i.e. That is

ICC International Criminal Court

ICTR International Criminal Tribunal of Rwanda

ICTY International criminal tribunal for the former Yugoslavia

MMR Mayavars for Mayavar Land

OTP Office of the Prosecutor

PTC Pre-Trial Chamber of The International Criminal Court

TC Trial Chamber

The Statute The Rome Statute of International Criminal Court

V. Versus

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MEMORIAL ON BEHALF OF THE DEFENCE
STATEMENT OF JURISDICTION

It is hereinafter most respectfully submitted that the Prosecutor has approached this
International Criminal Court and he has submitted that it has jurisdiction to exercise this
petition under Article 5 read with Article 13 of the Rome Statute of the International Criminal
Court, 1998. Article 5(1) states as follows-

“The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a while. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes:

a) The Crime of Genocide;


b) Crimes against humanity;
c) War Crimes;
d) The Crime of Aggression.”

The Defence is not contending the jurisdiction of this Hon’ble Court.

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MEMORIAL ON BEHALF OF THE DEFENCE
STATEMENT OF FACTS

i. Softland is a State in the continent of Greatland which is divided into two parts-
Northern and Southern Softland by the river Thoga. Northern Softland was considered
educationally and economically developed in comparison to southern Softland. People
hailing from northern Softland occupied most of the influential political and
bureaucratic positions in the country. This created disenchantment among the people
of southern Softland and led to political unrest on several occasions leading to
violence.
ii. Softland’s population consists of several ethnic groups. Two ethnic groups constituted
80% of the total population of 20 million. These groups were of Kamila ethnicity 58%
and Simlahi ethnicity 22%. Of the five remaining ethnic groups, Kumis constitutes
12% of the total population. It is claimed by Kamilas that they follow the most
authentic form of Mayavar religion in accordance with its religious texts. Kamilas
have major differences with Kumis. Kamilas argue that though the Kumis claim that
they belong to Mayavar religion their practices are contradictory to the religious texts
of Mayavar religion.
iii. Over the years there has been a growing feeling among some sections of Kamila
group that the Kumis are not strictly following the Mayavar religious practices in a
way that is prescribed by the important texts of Mayavar. Though they believe in
same religious texts as Mayavars, some of their practices are completely different
from other Mayavars. Kumis do not follow the rituals as others.
iv. The biggest annual festival of Kumis takes place in the second week of July every
year. The festival is spread over three days. During the festival, Kumi people
customarily visit a specific place called 'Kimochi-Torami', which means 'God’s
resting place'. It has an ordinary fencing of one metre height, just to denote the border
of the space. 26 small houses, which look like huts, are beautifully and artistically
built in the area. It is believed by Kumis that during the annual festival the Gods
would descend to the ground and reside in these huts. During these three days of the
festival people in groups sing prayers to the Gods. The singing goes on
uninterruptedly for three days. The singing has a particular style of its own.
v. It is believed and followed by Kumis that when there are no festivities these places
should not be visited for the purpose of maintaining their purity and sanctity. This
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MEMORIAL ON BEHALF OF THE DEFENCE
practice is respected by people belonging to other ethnicities as well. People
belonging to other ethnic groups also visit Kimochi-Toramis to watch and enjoy the
performances. Kimochi-Toramis are listed on the Representative List of the Intangible
Cultural Heritage of Humanity, under the Convention for the Safeguarding of the
Intangible Cultural Heritage of 2003.
vi. Some sections of Kamilas believe that Mayavar should become the religion of the
State. There had been a stiff resistance to this demand from other ethnic groups. It
was reported in the media in April 2015, there were attacks on the people and the
properties belonging to ethnic minority groups. The Government of Softland declared
that making Mayavar as State religion would only be feasible after consulting with the
ethnic minority groups.
vii. On the night of 05 May 2015 a house belonging to the Zomi, the religious head of the
Kumis was attacked, leading to the destruction of its outer parts. On the next day a
group called Mayavars for Mayavar Religion (MMR) in a video message with a
person speaking with his head covered took responsibility for the same. Security
forces began arresting people alleged to have any association with MMR. The police
chief held a press conference wherein he informed that they received reliable
information that MMR had received lethal weapons from across the borders. There
was a sharp increase in the confrontation between armed groups of the MMR and the
security forces soon after this.
viii. In January 2016, Human Rights Monitor (HRM), a non-governmental organization
released a report stating that more than 400 people were arrested in 2015. The media
reported that MMR’s armed groups had increased dramatically in numbers and
strength. After intensive confrontations between the MMR and government forces for
two months in March and April 2016, and with the retreat of Softland government
forces, southern Softland came under the control of the MMR. MMR declared the
new name of southern Softland as the Mayavar Land. Mr Babiyola was instituted as
the President of MMR and also the President of Mayavar Land. The accused, Mr.
Sengota was appointed as the chief of the Culture department. Mr. Sengota was well
versed in Mayavar texts and considered the practices of Kumis to be anti-Mayavar
ix. On 05 May 2016 it was reported that MMR issued a pamphlet in Mayavar Land
(Southern Softland) in which it appealed to all the Kumis that they refrain from
celebrating their annual festival. In response to this, Zomi the head of Kumis issued a

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MEMORIAL ON BEHALF OF THE DEFENCE
statement addressed to all the Kumis that they should go ahead with their preparatory
work for their annual festival. On 10 and 11 May 2016, Mr Sengota visited four of the
seven Kimochi-Toramis in Mayavar Land (Sothern Softland). In the interviews he
explained that he wanted to convey the message that he respected the sentiments of
the Kumi people but would disapprove of their practices.
x. On 20 May 2016, before the dusk, more than two hundred people gathered near each
of the two Kimochi-Toramis. In front of a few media persons, the people who
gathered there started digging the two Kimochi-Toramis. They demolished all the
small hut like constructions built for the previous year’s annual festival and the
fencing. They further dug the places to make them unusable for the planned annual
festival. When questioned, they said that they were part of the cultural security guards
formed by Mr. Sengota. They further emphasized that it should not be considered as
ordained by any individual but should be considered as ordained by God.
xi. On 21 May 2016 on being approached by the media, Mr. Sengota expressed his
regrets for the destruction. He shared that he had engaged with the Kumis to find a
solution for this issue. However, it did not materialize. He added that Kumis should
cooperate with them in making southern Softland a homogenous land of Mayavars.
When asked whether remaining Kimochi-Toramis would also meet the same fate, he
answered that he would leave it to the people to decide.
xii. After the attacks on two Kimochi-Toramis, the religious head of Kumis, the Zomi
called upon his ethnic community to mobilise themselves peacefully to protect their
religious sites and their ethnic identity. Hundreds and thousands of Kumis came out
and participated in the protests. The Zomi declared that from 08 July to 15 July 2016
the Kumi people should reach their nearest Kimochi -Toramis including the two
destroyed sites.
xiii. Large number of Kumis reached their nearest place by 8 July 2016. However, people
kept joining in till 15 July. The organisers stated that nearly half a million Kumis took
part in the protest. They also said that 500 people went missing and they were
receiving the news that some of those who went missing were found dead at several
places. The press release also pointed out that the cultural security guards who were
instrumental in destroying two Kimochi-Toramis were in the forefront in attacking
Kumi people. They underlined that they were attacking under the orders of Mr
Sengota.

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MEMORIAL ON BEHALF OF THE DEFENCE
xiv. The Human Rights Monitor (HRM) released a report to the media meet on 25 July
2016 which contained the details of 56 people who had died. The report stated that the
dead bodies were found near to the routes through which large number of people
passed to reach Kimochi- Toramis. The report further pointed out that no action was
taken by the police. The report mentioned that despite apprehensions that that there
might be physical attacks on the Kumis, no security was provided on the routes that
had traversed to reach the Kimochi-Toramis. HRM report underlined that there were
deep wounds on some of the bodies of the dead and suspected that it must have been
caused by the attackers. The HRM stated that they, along with other human rights
groups and individuals, would request the Prosecutor of the International Criminal
Court (ICC) to conduct investigation into the violations of international humanitarian
law and human rights law.
xv. Mr. Sengota in his interview to the media expressed ignorance of deaths. He said that
the task of cultural security guards was to do everything to protect the cultural
integrity of Mayavar Land. He said that the deaths might have occurred because of
sunstroke as people were walking for long distances under severe hot temperatures
and Kumi leadership should not have asked people to walk for long distances keeping
in view the weather conditions. He also said that it was not possible to provide
security on every route.
xvi. Meanwhile, in the month of August 2016, through various diplomatic channels,
Softland government sought the support of neighboring State of Mojavi which sent its
armed forces into the southern Softland. Softland armed forces joined Mojavi forces
and an intense conflict erupted continued for two weeks between the MMR armed
groups and the Softland and Mojavi forces. Softland forces took the control over
southern Softland by the first week of September 2016. Most of the MMR cadres
surrendered to the Softland forces after the takeover.
xvii. The office of the Prosecutor of the ICC initiated preliminary investigations and issued
arrest warrants against four individuals. Mr Sengota was one of them. In response to
the arrest warrant by the ICC, the Softland government promptly arrested Mr Sengota
and surrendered him to the ICC. Mr. Sengota was charged with the following crimes
under the Statute of the ICC. The case is before the trial chamber of the ICC.

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MEMORIAL ON BEHALF OF THE DEFENCE
ISSUES RAISED

1) WHETHER THE ACCUSED HAS BEEN SURRENDERED T O THE COURT


ACCORDING TO T HE DUE PROCESS AND WHETHER HE HAS BEEN SUBJECTED
TO A FAIR TRIAL ACCORDING TO T HE PRINCIPLES OF NATURAL JUSTICE?

2) WHETHER MR. SENGOTA IS GUILTY OF COMMITTING THE WAR CRIME OF


ATTACKING PROTECTED OBJECTS UNDER ARTICLE 8(2)(E)(I V) OF THE
STATUTE OF THE INTERNATIONAL CRIMINAL COURT?

3) WHETHER CHARGING OF MR. SENGOTA FOR COMMITTING CRIME AGAINST


HUMANITY OF MURDER UNDER ARTICLE 7(1)(A) OF T HE STATUTE OF THE
INTERNATIONAL CRIMINAL COURT FOR THE ACTS COMMITTED FROM 08 JULY
TO 15 JULY 2016 IS JUSTIFIED ?

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MEMORIAL ON BEHALF OF THE DEFENCE
SUMMARY OF PLEADINGS

1. WHETHER THE ACCUSED HAS BEEN SURRENDERED TO THE COURT ACCORDING

TO THE DUE PROCESS AND WHETHER HE HAS BEEN SUBJECTED TO A FAIR TRIAL

ACCORDING TO THE PRINCIPLES OF NATURAL JUSTICE ?

The Principle of Natural Justice is not followed while charging Mr. Sengota and he
has not been subjected to fair trial as, firstly, he was not presented before a competent
court following the arrest warrant and secondly, he was not given an opportunity to
exercise his right under the provisions enshrined in the Rome Statute.

2. WHETHER MR . SENGOTA IS GUILTY OF COMMITTING THE WAR CRIME OF

ATTACKING PROTECTED OBJECTS UNDER ARTICLE 8(2)(E )(IV) OF THE STATUTE

OF THE INTERNATIONAL CRIMINAL COURT ?

Mr. Sengota is not guilty of committing the War Crime of attacking protected objects
u/a 8(2)(E)(IV) of the Statute of ICC as, firstly, Mr. Sengota never directed the attack
on the two Kimochi-Toramis, secondly, he never intended to attack the Kimochi-
Toramis, thirdly, the attack was not associated with the armed conflict between the
MMR and Softland government forces, fourthly, the attack on the two Kimochi-
Toramis is not part of a protracted armed conflict and lastly, Mr. Sengota cannot be
held responsible as per the principle of superior-subordinate relationship.

3. WHETHER CHARGING OF MR. SENGOTA FOR COMMITTING CRIME AGAINST

HUMANITY OF MURDER UNDER ARTICLE 7(1) (A) OF THE STATUTE OF THE

INTERNATIONAL CRIMINAL COURT FOR THE ACTS COMMITTED FROM 08 JULY TO


15 JULY 2016 IS JUSTIFIED?

The charges levied against Mr. Sengota for committing crime against humanity of
murder under Article 7 (1) (A) of the Statute of ICC is unfounded and de facto
inapplicable as: Firstly, there is no prima facie evidence against Mr. Sengota,
secondly, the attack was not directed by Mr. Sengota and lastly there was no conduct
to show a widespread or systematic attack by Mr. Sengota.

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MEMORIAL ON BEHALF OF THE DEFENCE
WRITTEN PLEADINGS

1. WHETHER THE ACCUSED HAS BEEN SURRENDERED TO THE COURT ACCORDING


TO THE DUE PROCESS AND W HETHER HE HAS BEEN SUBJECTED TO A FAIR TRIAL
ACCORDING TO THE PRINCIPLES OF NATURAL JUSTICE?

1.1. HE WAS NOT PRESENTED BEFORE A COMPETENT COURT.


I. It is humbly submitted before the Hon’ble court that after the initiation of preliminary
proceedings by the learned Prosecutor, an arrest warrant was issued against the
accused. In response to the arrest warrant, the Softland government promptly arrested
the accused and surrendered him to this Hon’ble court. We humbly submit before the
Hon’ble court that the process of arrest of the accused and his surrender is
inconsistent with the Rome Statute of the International Criminal Court, 19981
(hereinafter referred to as “the statute”), which states that:
“A person arrested shall be brought promptly before the competent judicial
authority in the custodial State which shall determine, in accordance with the law
of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.”

II. Moreover, it is mandatory for the custodial state to present the accused before a
competent court in its territory before surrendering him to this Hon’ble court. 2 By
surrendering the accused to this Hon’ble court without presenting him before a
competent court in its territory, the Softland government has violated the requisite
provision. The procedure established under the statute is of a mandatory nature and
since the same has not been followed by the Softland government, it is evident that
the proceedings against the accused have not been conducted in accordance with the
procedure established by law.

1
Article 59 ¶ 2 of Rome Statute of ICC, 1998.
2
Ibid.
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MEMORIAL ON BEHALF OF THE DEFENCE
III. Lastly, the due process doctrine has been well established in Public International Law.
The general principal states that it is axiomatic that the International Tribunal must
fully respect internationally recognized standards regarding the rights of the accused
at all stages of its proceedings.3

1.2. HE WAS NOT GIVEN AN OPPORTUNITY TO EXERCISE HIS RIGHT


UNDER THE PROVISION ENSHRINED IN THE ROME STATUTE OF ICC.

I. It is humbly submitted before the Hon’ble court that the accused was not given the
opportunity to exercise his right to apply to the competent authority in the Custodial
State for interim release pending surrender under Article 59 paragraph 3 of the statute
which states that:

“The person arrested shall have the right to apply to the competent authority in
the custodial State for interim release pending surrender.”

It is submitted that the accused, Mr. Sengota was denied an opportunity to


exercise his right to apply for interim release pending surrender. This denial
constitutes the violation of the accused’s right to a fair trial. Recognising the
accused’s right to be informed of such right, the Hon’ble court in The Prosecutor
v. Joseph Kony4, requested the Registrar to draw the attention of the accused to
his right to apply to the competent authority in the custodial State for interim
release pending surrender pursuant to article 59, paragraph 3, of the Statute, as
well as to his right to apply for interim release upon his surrender to the Court and
pending trial pursuant to article 60, paragraph 2, of the Statute. Therefore, the
whole procedure of arrest and surrender of Mr. Sengota violates the principles of
natural justice.

II. It is submitted that everyone is entitled in full equality to a fair and public hearing by
an independent and impartial tribunal, in the determination of his rights and

3
http://www.icty.org/x/file/Legal%20Library/Statute/statute_re808_1993_en.pdf, ¶ 106. Last seen on 8th
August, 2017.
4
The Prosecutor v. Joseph Kony ,ICC-02/04-01/05, International Criminal Court
Pre-Trial Chamber II, 3 September, 2007.

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MEMORIAL ON BEHALF OF THE DEFENCE
5
obligations and of any criminal charge against him and therefore the process of
arrest and surrender of Mr. Sengota goes against the right of an accused to a fair trial
which is recognised as a basic human right.6

III. Moreover, the right to a fair trial is an internationally recognised human right. In
Prosecutor v. Thomas Lubanga Dyilo7, the Appeals Chamber has noted that the
Statute “must be interpreted and more importantly applied in accordance with
internationally recognized human rights; first and foremost, in the context of the
Statute, the right to a fair trial”.

IV. Moreover, Article 64 paragraph 2 of the statute imposes a duty on the Trial Chamber
of this Hon’ble court to ensure that the trial conducted by it is fair with full respect for
the rights of the accused. It states that:
“The Trial Chamber shall ensure that a trial is fair and expeditious and is
conducted with full respect for the rights of the accused and due regard for the
protection of victims and witnesses.”

V. Lastly, Article 67 paragraph 1 of the statute gives the accused a right toa fair hearing
conducted impartially. It states that:
“In the determination of any charge, the accused shall be entitled to a public
hearing, having regard to the provisions of this Statute, to a fair hearing
conducted impartially”

5
Article 10, Universal Declaration of Human Rights, 1948.
6
Article 6, European Convention on Human Rights, 1953.
7
Prosecutor v. Thomas Lubanga Dyilo , ICC-01/04-01/06, International Criminal Court (ICC), 14 March 2012.
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MEMORIAL ON BEHALF OF THE DEFENCE
2. WHETHER MR. SENGOTA IS GUILTY OF COMMITTING THE WAR CRIME OF
ATTACKING PROTECTED OBJECTS UNDER ARTICLE 8(2)(E)(IV) OF THE STATUTE
OF THE ICC ?

2.1. MR. SENGOTA NEVER DIRECTED THE ATTACK ON THE TWO


KIMOCHI-TORAMIS.

I. It is most humbly submitted before the Hon’ble Court that the events on 20th May
2016 which led to the destruction of the two Kimochi-Toramis by the attackers,
claiming to be cultural security guards, were not under the directions or instructions of
Mr. Sengota. Mr. Sengota never approved of the attacks either implicitly or explicitly
in any of his statements to the media but rather expressed his regrets to the Kumi
people for their loss.8

II. Furthermore, in the case of Prosecutor v. Tihomir Blaskic9, it was observed that to
show the destruction or willful damage to institutions dedicated to religion or
education, “the damage or destruction must have been committed intentionally to
institutions which may clearly be identified as dedicated to religion or education”.

III. It is most respectfully submitted that the attacks have been carried out by a group of
people claiming to be “cultural security guards formed by Mr. Sengota”10. The
identity of these attackers is not revealed in any of the released media reports or any
other authentic sources which could even prove that they were cultural security
guards. It is their own admittance that they were performing the duty entrusted to
them by Mr. Sengota11, to which the Respondent had not once conceded in any of his
speeches or statements given to the media.
IV. Furthermore, they have also stated that their acts should not be considered to be
ordained by any individual or any person but should be considered as ordained by
God12. This shows that Mr. Sengota was never involved in the attacks that were
carried out on the two Kimochi-Toramis let alone the allegation that he directed the

8
Moot Proposition, ¶ 14.
9
Prosecutor v. Tihomir Blaskic (Trial Judgement), IT-95-14-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 3 March 2000.
10
¶ 13, Moot proposition.
11
Ibid.
12
Ibid.
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MEMORIAL ON BEHALF OF THE DEFENCE
attacks on the respected sites. In light of these contentions, it is most respectfully
submitted that the charges levied against Mr. Sengota are unmerited and baseless.

2.2. MR. SENGOTA HAD NEVER INTENDED TO HARM THE KIMOCHI


TORAMIS.
I. It is most respectfully submitted before this Hon’ble Court that, Mr. Sengota never
intended to cause harm to the Kimochi Toramis rather he was of the view that the
conflict must be resolved amicably. The prosecutor has no direct or circumstantial
evidence to show that Mr. Sengota has intended the destruction of Kimochi Toramis.

II. Further it is submitted that, in terms of the requisite mental element (mens rea) of the
offence, the attack in question must be committed with intent and knowledge13, the
latter meaning ‘awareness that a circumstance exists’14. That is, the accused must
intentionally15 (or, synonymously, wilfully)16 direct an attack against the relevant
object in the knowledge that it is cultural property17 in the broad sense of the term and
since it has been comprehensively proved above that Mr. Sengota did not direct the
attack, hence lacking the intent to cause the said destruction.

III. In furtherance to support the above argument, it most humbly submitted before the
Hon’ble Court that, the Rome Statute’s definition of intent in relation to conduct is
that the accused ‘means to engage in the conduct’18. The accused’s intent and
knowledge can be inferred from relevant facts and circumstances 19. Mr. Sengota has
always respected the sentiments of Kumis20 and even expressed his regrets for the
destruction21. These facts and circumstances show that Mr. Sengota lacks the required
knowledge to commit such a crime.

IV. Moreover, it is submitted before this Hon’ble Court that the Respondent neither had
any knowledge or intent to commit such an immoral act when he himself was a

13
Rome Statute Art 30(1).
14
Rome Statute Art 30(3) and Blaškić Trial (International Criminal Tribunal for the Former Yugoslavia, Trial
Chamber, Case No. IT-95-14-T, 3 March 2000.
15
Supra at 9; Rome Statute arts 8(2)(b)(ix), 8(2)(e)(iv).
16
Prosecutor v. Pavle Strugar (Trial Judgment), IT-01-42-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 31 January 2005.
17
Ibid.
18
Rome Statute Art 30(2)(a).
19
Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 15 July 1999.
20
¶ 14, Moot Proposition.
21
Ibid.
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MEMORIAL ON BEHALF OF THE DEFENCE
religious devotee. He even engaged with the Kumis to arrive at an amicable solution,
this shows his modus operandi that he believes in cooperative arrangement22 rather
than a coercive action. Mere evading answering a question asked by the media should
not be interpreted as his acquiescence to the crime as it wouldn’t have been
professional on his part to give his opinion without any investigation. Hence charging
the Respondent with such a heinous crime shows a gross miscarriage of justice.

2.3. THE ATTACK WAS NOT ASSOCIATED WITH THE ARMED CONFLICT
BETWEEN THE MMR AND SOFTLAND GOVERNMENT FORCES.

I. It is most respectfully submitted to the Hon’ble Court that the attack on the two
Kimochi-Toramis was carried out by an unidentified group of people, claiming to be
working under the orders of Mr. Sengota, had no association with the newly
established government of Mayavar land. This Hon’ble Court has observed in a
previous case that in order to determine whether the attacks are associated with an
armed conflict the Trial Chamber may take into account factors including: the status
of the perpetrator and victim; whether the act may be said to serve the ultimate goal of
a military campaign; and whether the crime is committed as part of, or in the context
of, the perpetrator’s official duties.23
II. In the present case, the status of Mr. Sengota is that of the head of Culture
Department24. The status and responsibilities of the accused is not of a military nature.
Furthermore, the destruction of Kimochi-Toramis was not the ultimate goal of the
military campaign launched by the MMR group. Moreover, the official duties of Mr.
Sengota connote only to his position of being the head of the Culture Department.
Hence, the attacks cannot be said to have been committed as part of or in the context
of Mr. Sengota’s official duties.
III. In light of the arguments presented above, it is humbly submitted before the Hon’ble
Court that the attacks which were carried out on the two Kimochi-Toramis were not
associated with the armed conflict between the MMR forces and the Softland
government forces.

22
Ibid.
23
Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08-2138), Trial Chamber, 22 Feb. 2012, ¶142-144.
24
¶ 10, Moot proposition.
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MEMORIAL ON BEHALF OF THE DEFENCE
2.4. THE ATTACK ON THE TWO KIMOCHI-TORAMIS IS NOT PART OF A
PROTRACTED ARMED CONFLICT.

I. It is most respectfully submitted to the Hon’ble Court that Article 8(2)(f) of the Rome
Statute states: “Paragraph 2 (e) applies to armed conflicts not of an international
character and thus does not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It
applies to armed conflicts that take place in the territory of a State when there is
protracted armed conflict between governmental authorities and organized armed
groups or between such groups.”25
II. It is most respectfully submitted that in the present case, the armed conflict between
the Softland government forces and MMR ended in April 2016 after the retreat of the
Softland government forces26. Thereafter, the MMR gained control of the territory
and started taking part in regulating the governance which is apparent from the acts
like instituting a President of the territory (Mayavar Land) and forming a team of
twenty people for the purpose of governance27. Therefore, the absence of protracted
armed conflict during the attack on the two Kimochi-toramis is quite evident from the
factual circumstances. Henceforth, in these respects the attack could more correctly be
termed as an attack resembling “internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature”.
III. In light of the above arguments, it is submitted that the attack on the two Kimochi-
Toramis was not part of the armed conflict between the Softland government forces
and the MMR and thus lacks the basic requirement for the application of Article
8(2)(e) of the Rome Statute rendering the matter to be a domestic dispute and out of
the jurisdiction of the present Hon’ble Court.

2.5. MR. SENGOTA CANNOT BE HELD RESPONSIBLE AS PER THE


PRINCIPLE OF SUPERIOR-SUBORDINATE RELATIONSHIP.
I. It is most respectfully submitted to the Hon’ble Court that a superior can be held
criminally responsible only if some specific information was in fact available to him
which would provide notice of offences committed by his subordinates. A superior

25
Article 8(2)(f), Statute of International Criminal Court, 1998.
26
¶ 10, Moot Proposition.
27
Ibid.
7
MEMORIAL ON BEHALF OF THE DEFENCE
can only be held responsible if two conditions are met, namely subordinates have
committed such breaches and the superior had a duty to act in regard of these
breaches28. In furtherance to the two conditions the involvement of Mr. Sengota in the
destruction of the property becomes questionable as the petitioner has been unable to
prove that the attackers were actually the cultural security guards as the statement
made in the press by the attackers could very well be anti-Sengota propaganda of the
attackers. Hence, casting no duty on Mr. Sengota as there is no breach by his
subordinates.

II. It is most humbly submitted before the Hon’ble Court that, a subordinate does not
relieve his superior of criminal responsibility if he knew or had reason to know that
the subordinate was about to commit such acts or had done so and the superior failed
to take the necessary and reasonable measures to prevent such acts or to punish the
perpetrators thereof29 since the Respondent has categorically denied the intent and
knowledge of the crime in the present case so knowledge being an important element
to prove a subordinate-superior relationship30 is lacking in the present case.

III. Moreover it is submitted that, even though the superior is considered responsible in
connection with the same crimes committed by the subordinates (i.e. if they have
committed war crimes, the superior is also charged with war crimes), it does not mean
that the superior becomes an accomplice and actually committed these crimes31. So
even if the argument of Prosecutor that there was involvement of cultural security
guards is accepted by the Court then it shouldn’t be perceived as the crime has been
committed by Mr. Sengota as he had no knowledge of the same.

IV. In furtherance to above argument it is most humbly submitted that, a superior


possesses or will be imputed the mens rea required to incur criminal liability where:
he or she had actual knowledge, established through direct or circumstantial evidence,
that his or her subordinates were about to commit, were committing, or had

28
Article 86(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3.
29
ICTY Statute, Article 7(3).
30
Prosecutor v. Halilovic (Trial Judgment), IT-01-48-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 16 November 2005.
31
Prosecutor v. Hadzihasanovic and Kubura (Appeal Judgment), IT-01-47-A, International Criminal Tribunal
for the former Yugoslavia (ICTY), 22 April 2008.
8
MEMORIAL ON BEHALF OF THE DEFENCE
committed, a crime under the Statutes32 and in the present case the Respondent neither
knew nor had any reason to believe33 that the cultural security guards would commit
such a crime. Hence Mr. Sengota deserves this benefit of doubt as there are no facts or
circumstantial evidences to prove the same.

V. It is most respectfully submitted that, it should be emphasized that the doctrine of


command responsibility does not hold a superior responsible merely because he is in a
position of authority as, for a superior to be held liable, it is necessary to prove that he
‘knew or had reason to know’ of the offences and failed to act to prevent or punish
their occurrence34. Superior responsibility, which is a type of imputed responsibility,
is therefore not a form of strict liability35.” So it would be unjust and unfair to charge
Mr. Sengota under this offence.

32
Prosecutor v. Tihomir Blaskic (Trial Judgement), IT-95-14-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 3 March 2000.
33
Article 28 of the Rome Statute, 1951
34
Prosecutor v. Dario Kordic, Mario Cerkez (Appeal Judgement), IT-95-14/2-A, International Criminal
Tribunal for the former Yugoslavia (ICTY), 17 December 2004
35
Prosecutor v. Zdravko Mucic aka "Pavo", Hazim Delic, Esad Landzo aka "Zenga", Zejnil Delalic (Appeal
Judgement), IT-96-21-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 20 February 2001.
9
MEMORIAL ON BEHALF OF THE DEFENCE
3. WHETHER CHARGING OF MR. SENGOTA FOR COMMITTING C RIME AGAINST
HUMANITY OF MURDER UNDER ARTICLE 7(1) (A) OF THE STATUTE OF THE ICC
FOR THE ACTS COMMITTED FROM 08 JULY T O 15 JULY 2016 IS J USTIFIED?

3.1. THERE IS NO PRIMA FACIE EVIDENCE AGAINST MR. SENGOTA.

I. It is most respectfully submitted to the Hon’ble Court that Mr. Sengota is an ardent
believer of Mayavar Religious Texts. He is known for his scholarship in the same,
since he is possessed with such knowledge in the subject, he has a right of being
critical which shouldn’t be misconstrued as an anti-Kumi agenda. The accused has
always believed in the fact that the disputes between followers of Mayavar texts and
Kumis shall be resolved amicably.36 It would be unjust and very pre-mature to charge
Mr. Sengota with such a crime against humanity.

II. It is further submitted that, the prosecutor lacks primary evidences against the
Respondent where they could show a direct connection between the crime and the
Respondent which is an essential condition for a crime. It is the hearsay evidences and
press releases which have been relied upon by the prosecutor which can’t be admitted
as there is every possibility that these press releases may be scripted in the present
case. Hence lacking probative value of evidence as per article 69(4) of the Rome
Statute of the International Criminal Court.37

III. Furthermore it is submitted the statements made by the organizers of protests on the
15th of July shall not be relied upon as the information has been exaggerated and
overstated. It would be worth mentioning here the duplicitous nature of information
provided by the organizers by falsely claiming that there were half million people
involved in the protest whereas the available facts tells us that the protest was
attended by “Hundreds and Thousands of Kumis”38 which could in no way imply an
enormous population of half million people. This shows the inclination of press

36
¶ 12, Moot Proposition.
37
The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the
probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair
evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence.
38
¶ 15, Moot Proposition.
10
MEMORIAL ON BEHALF OF THE DEFENCE
towards the Kumis. Hence these evidences must be outrightly rejected for fair
administration of justice.39

IV. Moreover, since it has been proved that there is an element of fabrication in the
release, hence the Respondents appeal to the Hon’ble Court not to rely on the press
release made on the 15th of July as all the allegations made therein are baseless and
without any sufficient backing. It is submitted that as a general rule, indirect evidence
must be accorded a lower probative value than direct evidence. The Chamber
highlights that, although indirect evidence is commonly accepted in the jurisprudence
of the Court, the decision on the confirmation of charges cannot be based solely on
one such piece of evidence.40 For the ease of court, it is submitted that indirect
evidence encompasses hearsay evidence, reports of international and non-
governmental organisations (NGOs), as well as reports from national agencies,
domestic intelligence services and the media.41

3.2. THE ATTACK WAS NOT DIRECTED BY MR. SENGOTA.

I. It is most humbly submitted before the Hon’ble Court that, since the Respondent have
been categorically denying Mr. Sengota’s involvement in the attacks, as in order to
commit a crime against humanity under the International Criminal Court there must
be an element of Intention and Knowledge42 of the crime being committed which is
absent in the present case.

II. Further it is submitted that, taking into account that no mental element is specified in
article 7(1) (a) of the Statute, then article 30 of the Statute43 must be applied. The
legal requirements to be proven are thus “intent and knowledge”. The Court has to be

39
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA 8, International
Criminal Court (ICC), 25 September 2009.
40
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang - Decision on the
Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b)
of the Statute, ICC-01/09-01/11, International Criminal Court (ICC), 30 May 2011.
41
Prosecutor v. Francis Kirimi Muthaura, ICC-01/09-02/11. , International Criminal Court (ICC), September 13,
2011.
42
The Prosecutor v. Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA 8, International Criminal Court (ICC), 25
September 2009.
43
Supra 39, ¶ 423.
11
MEMORIAL ON BEHALF OF THE DEFENCE
satisfied that the perpetrator meant to cause death or was aware that death “will occur
in the ordinary course of events” required by article 30(2) (b) of the Statute44.

III. Furthermore it is submitted that, past conduct is not a sufficient factor to rely upon in
order to infer the suspect's intent within the meaning of article 30 of the Statute45. So
the court should not accept any evidence presented by the Prosecution to prove
Respondent’s intent prior to the attack. Consequently it must be established that the
material elements46 of the respective crime were committed with “intent and
knowledge”, unless the Statute or the Elements of Crimes require a different standard
of fault.

IV. Moreover it is most humbly submitted before the Hon’ble Court that, the general
mental element of a crime is fulfilled when (a) the suspect means to engage in the
particular conduct with the will (intent) of causing the desired consequence, or is at
least aware that a consequence (undesired) “will occur in the ordinary course of
events” (article 30(2) of the Statute); and (b) the suspect is aware “that a circumstance
exists or a consequence will occur in the ordinary course of events” (article 30(3) of
the Statute)47.

V. It is most humbly submitted that, the Prosecution have been unable to prove the
sufficient involvement of Mr. Sengota in the attacks of 15th July and it is their
presumptions which have led them to make such a conclusive statement. This can be
proved as Mr. Sengota himself “expressed his ignorance of deaths”48 before the press.
This shows that the Respondent was unaware of the attacks let alone the intention to
commit such a heinous crime. Hence lacking an essential condition of Mens Rea i.e.
guilty mind49 in committing the crime and the Prosecution’s attempt to mislead the
court by providing wrong information in the press release also shows that there is no
direct or circumstantial evidence which could prove that he directed the attack.

44
Prosecutor v. Zdravko Mucic aka "Pavo", Hazim Delic, Esad Landzo aka "Zenga", Zejnil Delalic (Trial
Judgement), IT-96-21-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 16 November
1998.
45
Supra 39.
46
Article 30(2) of the Rome Statute of the International Criminal Court
47
Supra 42.
48
¶ 18, Moot Proposition.
49
Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08-2138), Trial Chamber, 22 Feb. 2012.
12
MEMORIAL ON BEHALF OF THE DEFENCE
3.3. THERE WAS NO CONDUCT TO SHOW A WIDESPREAD OR
SYSTEMATIC ATTACK BY MR. SENGOTA.

I. It is most respectfully submitted before this Hon’ble Court that the act must be
committed as part of a wide spread or systematic attack and not just a random act of
violence. The act can be part of a widespread or systematic attack and need not be a
part of both50. In the present case there is neither a systematic nor a widespread attack
and ’systematic’ maybe defined as thoroughly organised and following a regular
pattern on the basis of a common policy involving substantial public or private
resources51.

II. Further it is submitted to the Hon’ble Court that the death of people during protest in
no way exhibits that the victims were even attacked, as the NGO reports which are
heavily relied upon by the Prosecution itself highlighted the fact that they suspected
the deep wounds were caused by the attackers, but didn’t mention anything about the
involvement of cultural security guards or Mr. Sengota. Even if we consider the
possibility, that the people were attacked then it would be the very first instance
where the attackers have actually attempted to hurt the citizens. This shows that there
is no regular pattern of attacks directed against the civilians. Hence lacking an
important condition of a common organizational policy in a systematic attack.

III. In furtherance to above argument it submitted that the concept of ’widespread’ may
be defined as massive, frequent, large scale action, carried out collectively with
considerable seriousness and directed against a multiplicity of victim52 whereas in the
present case the attack inflicted against the civilians is one crime scene and for it to
become widespread the attacks must be committed within a broader context53. Hence
lacking the core element of widespread attack.

50
The Prosecutor v. Ildephonse Hategekimana, ICTR-00-55B-T, ICTR, 5 May, 2011
51
Supra 5. Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang - Decision on the
Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article
19(2)(b) of the Statute, ICC-01/09-01/11, International Criminal Court (ICC), 30 May 2011.
52
Sylvestre Gacumbitsi v. The Prosecutor (Appeal Judgement), ICTR-2001-64-A, International Criminal
Tribunal for Rwanda (ICTR), 7 July 2006 ¶ 86.
53
Ibid, ¶ 103.
13
MEMORIAL ON BEHALF OF THE DEFENCE
IV. Moreover it is important to draw the court’s attention to the fact that since
organizational policy is a key ingredient to prove a systematic attack 54 and in the
present case it is nowhere mentioned that Mr. Sengota was involved in any previous
planning or authorizing his subordinates for the attacks. Additionally the
“organizational policy” depends on the merits of the case and there is no prescribed
definition of the same55 and in the present case no direct or circumstantial evidence
could resemble the presence of organizational policy.

54
The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T, International
Criminal Tribunal for Rwanda (ICTR), 21 May 1999
55
Supra 16. . Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang - Decision on
the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article
19(2)(b) of the Statute, ICC-01/09-01/11, International Criminal Court (ICC), 30 May 2011.
14
MEMORIAL ON BEHALF OF THE DEFENCE
PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare:

 The Principle of Natural Justice is not followed while charging Mr. Sengota and he
has not been subjected to fair trial;
 Mr. Sengota is not guilty of committing the War Crime of attacking protected objects
u/a 8(2)(E)(IV) of the Statute; and
 Mr. Sengota has not committed the crime against humanity of murder u/a 7 (1) (a) of
the Statute and therefore he should be exonerated from the same.

And pass any such order, other order that it deems fit in the interest of Justice, Equity and
Good Conscience.

And for this, Defence as in duty bound, shall humbly pray.

COUNSEL ON BEHALF OF THE DEFENCE

15
MEMORIAL ON BEHALF OF THE DEFENCE