NUREMBERG MOOT COURT 2020

__________________________________________________

The Office of the Prosecutor

Team Number 091

 TABLE OF CONTENTS

I. THE CASE OF MS. CALANTA FALLS WITHIN THE JURISDICTION OF THE ICC .... 3
I.A. The court has territorial jurisdiction over the case ....................................................................... 3
I.A.1. The term “conduct” in Art. 12(2)(a) of the Rome Statute encompasses the consequences of a
crime..................................................................................................................................................... 3
I.A.2. Part of the conduct took place in the territory of the Republic of Verden ................................. 4
I.B. The case falls within the subject-matter jurisdiction of the Court ................................................ 5
I.B.1. Contextual elements of crimes against humanity are fulfilled ................................................... 5
I.B.2. Constitutive elements of the crime of deportation are met ........................................................ 6
I.B.2.a. Ms. Calanta deported 3000 Islanders by expulsion and without grounds permitted under
international law .................................................................................................................................. 6
I.B.2.b. The Islanders were lawfully present in the Republic of Cintria.............................................. 6
I.B.2.c. The subjective element of the crime of deportation is met ...................................................... 7
I.B.3. Distinct elements of the crime of murder are met ...................................................................... 7
II. THE CASE AGAINST MS. CALANTA CONCERNING CRIME AGAINST HUMANITY
OF MURDER IS ADMISSIBLE UNDER ART. 17(1)(A) AND (D) OF THE ROME STATUTE
.............................................................................................................................................................. 8
II.A. The case is admissible before the ICC since the complementarity test is satisfied ..................... 8
II.A.1. The case under consideration is not being investigated or prosecuted ..................................... 8
II.A.2. Alternatively, previous investigation concerning murders of Islanders does not preclude ICC
from prosecution of Ms. Calanta.......................................................................................................... 9
II.A.2.a. Investigation of the same case in Cintria is not established ................................................. 9
II.A.2.b. State was unwilling to investigate and prosecute the case genuinely ................................... 9
II.B. The case is of sufficient gravity to be heard by the ICC ........................................................... 10
III. THERE ARE REASONABLE GROUNDS TO BELIEVE THAT MS. CALANTA IS
CRIMINALLY RESPONSIBLE FOR CRIMES OF DEPORTATION AND MURDER ....... 11
III.A. Ms. Calanta is indirect co-perpetrator of crime against humanity of deportation under Art. 25
(3)(a) of the Rome Statute .................................................................................................................. 11
III.B. Ms. Calanta is responsible for ordering of the commission of murder under Art. 25 (3)(b) of the
Rome Statute ...................................................................................................................................... 13
PRAYER FOR RELIEF .................................................................................................................. 14

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 I. THE CASE OF MS. CALANTA FALLS WITHIN THE JURISDICTION OF THE ICC
1. Pursuant to Art. 19(1) of the Rome Statute, the ICC should satisfy itself that it has jurisdiction over
any case brought before it.1 The Prosecution submits that the case falls within the jurisdiction of the
Court, since temporal, personal, territorial and subject-matter grounds are satisfied.
2. The Prosecution acknowledges that temporal jurisdiction of the ICC is satisfied, since the acts,
committed by Ms. Calanta on the territory of Republic of Verden, State Party to the Rome Statute
since 2004 [Case, para.7], took place in August 2018 and following [Case, para.11].
3. In the light of Art. 12(2) of the Rome Statute, the Court shall not resort to examination of personal
jurisdiction in case the territorial ground is satisfied.2 Accordingly, as long as the territoriality
principle is fulfilled, Ms. Calanta shall be held responsible despite of her nationality.
4. The crime of deportation, which is the cornerstone of the case at hand, raises the fundamental issue
of the territorial jurisdiction over the crime due to its transboundary nature. Since there is no essential
dispute on personal or temporal jurisdiction, the Prosecutor will further prove the (I.A) territorial and
(I.B) subject-matter jurisdiction over the present case.
I.A. The court has territorial jurisdiction over the case
5. The ICC may exercise its jurisdiction over the crime if conduct in question occurred on the territory
of State Party.3 The interpretation of territoriality principle requires, inter alia, (i) ascertaining the
meaning of the term “conduct” and, (ii) finding out whether it is required that at least part of the
conduct must take place in the territory of a State Party. 4 Therefore, the Prosecution submits that
(I.A.1) the term “conduct” in Art. 12(2)(a) of the Statute encompasses the consequences of a crime,
and (I.A.2) part of the conduct took place in the territory of a State Party to the Rome Statute.
I.A.1. The term “conduct” in Art. 12(2)(a) of the Rome Statute encompasses the consequences
of a crime
6. In order to interpret Art. 12(2)(a) of the Statute, the Court shall rely on the provisions of the Vienna
Convention on the Law of Treaties.5 The terms of a treaty should be interpreted in their ordinary

1
Rome Statute of the International Criminal Court, Art. 19(1).
2
ICC, Prosecutor v. Ngudjolo, ICC-01/04-02/07, Decision on the evidence and information provided by the Prosecution
for the issuance of a warrant of arrest for Mathieu Ngudjolo Chui, 6 July 2007, para.14.; ICC, Situation in the Republic
of Cote D'ivoire, ICC-02/11-14-Corr, Corrigendum to “Decision Pursuant to Art. 15 of the Rome Statute on the
Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire”, 15 November 2011, para. 188.
3
Rome Statute, Art.12(2)(a).
4
ICC, Situation in the People’s Republic of Bangladesh/Republic of The Union of Myanmar, ICC-01/19-27, Decision
Pursuant to Art. 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic
of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, para. 45.
5
ICC, Situation in the Democratic Republic of the Congo, ICC-01/04-168, Judgment on the Prosecutor's Application
for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006,
para. 33.

3
 meaning and in light of the object and purpose of the treaty.6 Moreover, subsequent agreements
between parties regarding the interpretation of the treaty shall be taken into account.7
7. Word “conduct” is literally defined as a “form of behavior, encompassing more than the notion of an
act”.8 Such definition includes the actus reus element, which may encompass the consequences of
crime within its scope.9 Moreover, a teleological interpretation, based on the object and purpose of a
treaty, allows interpreting the provisions of the treaty so as to enable the system to attain its
“appropriate effects”.10 The purpose of the Rome Statute is to “exercise criminal jurisdiction over
those responsible for international crimes”.11 This calls for an extensive interpretation of the notion
“conduct”, which would allow the Court to exercise jurisdiction over transboundary crimes.
8. Such approach was broadly supported on the Seventh session of the Assembly of States Parties,
affirming that concurrent jurisdiction for all crimes under the Rome Statute arises where the
perpetrator acts in one State and the consequences are felt in another.12
9. Thus, the notion of “conduct” in Art. 12(2)(a) of the Rome Statute encompasses the consequences of
such conduct.
I.A.2. Part of the conduct took place in the territory of the Republic of Verden
10. In Situation in Bangladesh/Myanmar, the crime of deportation was committed when the victims, who
were lawfully present in the territory of Myanmar, were forced to flee to Bangladesh. Similarly, in
the case at hand, more than 3,000 Islanders were coercively removed from Cintria to Verden, which
is a State party to the Rome Statute. [Case, para.16] Thus, the consequences of the crime of
deportation occurred in the territory of a State Party to the Rome Statute.
11. Accordingly, the consequences of two Islanders shot by Cintrian police occurred on the territory of
the Republic of Verden [Case, para.17]. A crime of murder of 12 Islanders did not occur on Cintrian
territory, but during their transportation to the Republic of Verden [Case, para.17, Clarification 2].
Considering the fact that Cintria and the Republic of Verden have the common border and there is no
other territory between them [Annex], the murder, accordingly, took place on the territory of Verden.

6
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, Art. 31(1).
7
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, Art. 31(3)(a)(c).
8
ICC, Situation in the People’s Republic of Bangladesh/Republic of The Union of Myanmar, ICC-01/19-27, para. 46.
9
ICC, Situation in the People’s Republic of Bangladesh/Republic of The Union of Myanmar, ICC-01/19-27, para. 50.
10
Jean-Baptiste Maillart, “Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle”, EJIL:Talk!
Blog of the European Journal of International Law, (2014); ICC, Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-
01/08-388, Decision Adjourning the Hearing pursuant to Art.61(7)(c)(ii) of the Rome Statute, 3 March 2009, para. 36.
11
Rome Statute, Preamble.
12
ICC, Seventh session of the Assembly of States Parties, ICC-ASP/7/20, Report of the Special Working Group on the
Crime of Aggression, Annex III, 14 - 22 November 2008, para. 28.

4
12. Consequently, since the criminal conduct occurred on the territory of the Republic of Verden, which
is a State Party to the ICC, the Court has territorial jurisdiction over the case.
I.B. The case falls within the subject-matter jurisdiction of the Court
13. The Prosecution submits that the case falls within the subject-matter jurisdiction of the Court, since
(I.B.1) contextual elements of the crimes against humanity of murder and deportation are satisfied.
Moreover, the constitutive elements of (I.B.2) deportation and (I.B.3) murder are met.
I.B.1. Contextual elements of crimes against humanity are fulfilled
14. The Prosecution submits that contextual elements of the crimes against humanity of murder and
deportation are satisfied: (i) there was an attack directed against the civilian population, (ii) the attack
was of widespread nature, (iii) it followed a State policy, (iv) a nexus between the individual act and
the attack existed, and (v) knowledge of the attack was established.13
15. Attack directed against civilian population means the multiple commission of acts from Art.7 against
any civilian population,14 which is a non-incidental object of the attack.15 The attack in this case was
carried out directly against the representatives of Spellige population, who were civilians.
16. As defined in Bemba case, “widespread attack”, connotes the large-scale nature of the attack and
significant number of targeted persons.16 The case under consideration concerns the outrageous
number of victims, which constitutes 3000 thousand of Islanders.
17. Concerning the State policy element, it is required that the State actively promotes or encourages such
an attack.17 Such policy can be derived from the Immigration Act and it was further reflected in the
established process of coercive removing the Islanders.
18. In determining whether a nexus between the acts of the accused and the attack exists, it is necessary
to consider the characteristics, aims, nature and/or consequences of the act.18 Forcible transfer was
conducted while achieving “goals” of the Immigration Act, therefore the nexus could be inferred.
19. Finally, the accused must know that his/her acts are part of the attack, or at least generally take the
risk that they are part thereof.19 This element is established since the police officers were clearly
instructed to forcibly move the Islanders.

13
Mark Klamberg, Commentary on the Law of the International Criminal Court, (2017), p. 31.
14
Rome Statute, Art. 7(2)(a).
15
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute, 21 March 2016,
para. 76.
16
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-3343, para. 163.
17
ICC, Elements of Crimes, Art. 7 Introduction (3).
18
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-3343, para. 165.
19
ICTY, Prosecutor v. Krnojelac, IT-97-25-T, Judgment, 15 March 2002, para. 59.

5
 I.B.2. Constitutive elements of the crime of deportation are met
20. In the light of Art. 7(2)(d) of the Rome Statute, the Prosecution submits that the Islanders (I.B.2.i)
were coercively deported without grounds permitted under international law and (I.B.2.ii) were
lawfully present in Cintria.20

I.B.2.a. Ms. Calanta deported 3000 Islanders by expulsion and without grounds permitted under
international law
21. The arbitrary or collective deportation of lawfully present aliens is generally prohibited21 if not
motivated by: (i) an individual’s own wish to leave; (ii) concern for the security of the population or
(iii) military necessity.22 The fact that the Islanders were lawfully present in Cintria and none of the
aforementioned criteria can be applied in this case, indicates the unlawfulness of such deportation.
22. Regarding the forcible character of deportation, it is not restricted to physical force, but may include
threat of force or coercion23 and may refer to a situation where those who were requested to be
removed, had no free or “genuine” choice to remain in the territory.24 In the case at hand, the victims
faced with hostile attitude and fear of murder and detention, which can amount to coercive acts.
Besides, even though some Islander asylum seekers signed “voluntary departure” forms under
coercion, it is the absence of genuine choice that makes their deportation unlawful.
I.B.2.b. The Islanders were lawfully present in the Republic of Cintria
23. The Defense may argue that the deportation of Islanders and automatic rejection of all the asylum
claims was based on the categorization of Islanders as “climate refugees”, which is not covered by
the 1951 Convention relating to the Status of Refugees (the “Refugee Convention”) [Case Facts,
para.13]. The Prosecution insists on distinguishment of the two different categories of Islanders’ legal
presence in Cintria, namely political refugees and persons displaced due to climate change.
24. Based on the facts of the case, some of the Islanders who signed “voluntary departure” forms should
have been granted asylum based on political persecution by Jarl of Spellige and his regime because
of their political opinions [Case, para.14]. Since oppression for political opinion amounts to
persecution for a Convention reason25 [Case, para.13, Footnote 1] such refugees were lawfully present
in Cintria, which is a Contracting State to the Refugee Convention.

20
Rome Statute, Art. 7(2)(d).
21
ICC, Situation in the People’s Republic of Bangladesh/Republic of The Union of Myanmar, ICC-01/19-27, para. 98.
22
ICTY, Prosecutor v Naletilić, IT-98-34-T, Judgment, 31 March 2003, paras 518-519.
23
ICC, Elements of Crimes, Art. 7(1)(d), footnote 12.
24
William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford Commentaries on
International Law), (2010), p. 165.
25
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951 Art. 1(A)(2).

6
25. As emphasized on the UN Climate Change Conference, although most victims of climate change do
not fall within the definition of a refugee under the Refugee Convention, they may still require an
international protection,26 which is called “complementary”, since it provides for human rights-based
protection that is additional to that provided by the Refugee Convention.27 The complementary
protection expands States’ protection obligations beyond the “refugee” category to include people at
risk of arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment or punishment.28
Similar approach was followed in Teitiota v. New Zealand in which the Human Rights Committee
considered the New Zealand’s refusal to recognize the legal presence of the “climate refugee”. The
Committee concluded that it may be unlawful under the ICCPR for governments to send people back
to countries where they will be exposed to life-threatening risks or to risk of facing cruel, inhuman or
degrading treatment.29
26. In the case at hand, the Islanders faced with such risks and inhuman or degrading treatment. Spellige
islands, being under water 80% of the year, with hundreds of homes destroyed, severe shortage of
fresh water and numerous annual human deaths [Case, para.5], became uninhabitable and exposed
the Islanders to imminent life-threatening risk. Moreover, the cases of deaths of malnutrition, sexual
violence and disappearances in the Republic of Verden can amount to “cruel, inhuman and degrading
treatment”. It follows that the Islanders could be exposed to such risks in both countries and should
have been granted complementary protection under the ICCPR in Cintria. Consequently, the Islanders
were lawfully present in the Republic of Cintria.
I.B.2.c. The subjective element of the crime of deportation is met
27. The mens rea of deportation must encompass that the accused intended to displace the victims across
a border.30 The process undertaken by Ms. Calanta was aimed to remove the Islanders across the
border and she publicly expressed the wish to decrease the number of immigrants [Case, para.20], so
the mens rea for the crime is satisfied.
I.B.3. Distinct elements of the crime of murder are met
28. The objective element of the crime under Art. 7(1)(а) of the Rome Statute is satisfied if the death of
victim results from the act of murder.31 As noted in Stakij, it is not always possible to identify the

26
United Nations High Commissioner for Refugees, Key Messages and commitments on Climate change and disaster
displacement COP 25 – Madrid, Spain, 2 to 13 December 2019, p. 2.
27
Jane McAdam, Climate Change, Forced Migration, and International Law (ed. 2012), p. 53.
28
Jane McAdam, 2012, p. 53.
29
United Nations Human Rights Committee, Views adopted by the Committee under article 5(4) of the Optional
Protocol, concerning communication No. 2728/2016, 7 January 2020.
30
ICTY, Prosecutor v Popović et al., IT-05-88-T10, para. 904.
31
ICC, Prosecutor V. Bemba, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute
on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 132.

7
 direct perpetrator and his/her victim(s) in each particular case.32 In the present case, the nexus is
established on the basis of Ms. Calanta’s anti-immigration policy, the execution of which resulted in
commission of murder.
29. With regard to the subjective element, the murder must be committed with intent and knowledge of
the perpetrator.33 Prosecution claims that police officers were aware that in case of shooting, the
deaths of Islanders would occur in the ordinary course of events, therefore the mens rea is fulfilled.
30. Consequently, since all the contextual and constitutive elements of the crimes of deportation and
murder are fulfilled, the case falls within the subject-matter jurisdiction of the Court.
II. THE CASE AGAINST MS. CALANTA CONCERNING CRIME AGAINST HUMANITY
OF MURDER IS ADMISSIBLE UNDER ART. 17(1)(A) AND (D) OF THE ROME STATUTE
31. With regard to admissibility of the case, the Prosecution claims that (II.A) the complementarity
test is satisfied, and (II.B) the case is of sufficient gravity to be heard before the ICC.
II.A. The case is admissible before the ICC since the complementarity test is satisfied
32. Principle of complementarity enshrined in Art.17(1)(a) of the Rome Statute is violated if the State
conducts genuine on-going or past investigation or prosecution against the person concerned.34
Therefore, a State’s failure to take any measures against the person involved in the commission of
the alleged crime or unwillingness and inability to investigate and prosecute such crime genuinely
renders the case admissible before the Court.35 The Prosecution emphasizes on Cintria’s inaction
in relation to the crimes committed, since the State is not and has not been investigated or
prosecuted the case genuinely.36
II.A.1. The case under consideration is not being investigated or prosecuted
33. Art. 17(1)(a) of the Rome Statute covers a scenario where the investigation or prosecution is taking
place in a State having jurisdiction over it.37 Considering whether the case is inadmissible under
Art. 17(1)(a) of the Rome Statute, the first question is whether there are ongoing investigations or
prosecutions. Only in the situation when the answer to this is affirmative, question of unwillingness
and inability should be examined.38 Facts of the present case indicate that there are no investigation
or prosecution of the case concerned. Any investigations have been closed by 2020 [Case, para.
20].

32
ICTY, Prosecutor V. Stakic, IT-97-24-T, Judgement, 31 July 2003, para. 201.
33
Klamberg, (ed.2017), p. 306.
34
Klamberg, (ed. 2017) p. 306.
35
Klamberg, (ed. 2017) p. 306-307. Otto Triffterer and Kai Ambos, Commentary on the Rome Statute of the
International Criminal Court, (3rd ed., 2016), p. 797.
36
ICC, Prosecutor v. Katanga, ICC-01/04-01/07 OA 8, para. 75-81.
37
ICC, Prosecutor v. Katanga, ICC-01/04-01/07 OA 8, paras 75.
38
ICC, Prosecutor v. Katanga, ICC-01/04-01/07 OA 8, para. 78. Klamberg (ed. 2017) p. 306.

8
 II.A.2. Alternatively, previous investigation concerning murders of Islanders does not preclude
ICC from prosecution of Ms. Calanta
34. The Defense may contest that the case is inadmissible since Cintria had already investigated it. In
that case, the Prosecution claims that the facts constitute inaction of Cintria, as soon as previous
investigation concerning murders of three Islanders does not cover the same case, thus rendering
it admissible. 39
II.A.2.a. Investigation of the same case in Cintria is not established
35. The “case” within the meaning of Art. 17 of the Rome Statute consists of two components: the
person and the conduct.40 At this stage of the proceedings, the same case had to encompass the
same suspects and substantially the same conduct.41 The State could pursue national proceedings
against a broader range of suspects on its own motion, but unless investigative steps are actually
taken in relation to the suspects who are subjected to the proceedings before the Court, there is no
conflict of jurisdiction and, thus, the case is admissible before the ICC. 42
36. With respect to the present case, the fact that national investigation has covered 3 police officers
but not Ms. Calanta indicate that it has not covered the “same person”. In addition, national
proceeding did not encompass the conduct, which constitutes the subject of the case before the
ICC, since Cintria had investigated other murders [Case, paras 16-17, 22; Clarification 3]. In this
situation, “same person – same conduct” test is not satisfied, which means that there is no conflict
of jurisdictions and case against Ms. Fiona Calanta is admissible to be heard before the Court.
II.A.2.b. State was unwilling to investigate and prosecute the case genuinely
37. Should the Court find the existence of the national investigation, the Prosecution further submits
that pursuant to Art. 17 (2) (a) of the Rome Statute, unwillingness of Cintria is established since
the features of shielding the person from criminal responsibility43 have been met. According to
Art. 21(3) of the Rome Statute,44 the Court while assessing the State’s unwillingness should take
into account the human rights case law.45 Particulary, in Nachova et al. v. Bulgaria, the ECtHR
stressed that shielding a person includes intentional ineffectiveness of the national investigations

39
ICC, Prosecutor v. Katanga, ICC-01/04-01/07 OA 8, para.78.
40
ICC, Prosecutor v. Gaddafi, ICC-01/11-01/11, Decision on the admissibility of the case against Saif Al-Islam
Gaddafi. Date: 31 May 2013, para. 61.
41
ICC, Prosecutor v. Ruto, ICC-01/09-01/11 OA, Judgment on the appeal, 30 August 2011, para. 42.
42
ICC, Prosecutor v. Ruto, ICC-01/09-01/11 OA, para 41.
43
The Rome Statute, Art. 17(2)(a).
44
The Rome Statute, Art. 21(3).
45
Triffterer/Ambos, (3rd ed., 2016), p. 819.

9
 with any deficiency for them.46 Such ineffectiveness may be established by the lack of strict
examination of all the circumstances47 or lack of convincing and proper explanations by a State.48
38. In the present case, Cintria failed to examine the situation properly and decided to close the
proceeding, stating that other 27 murders were committed by unknown individuals [Case, para.
16]. This fact also indicates that identity of the actual perpetrators had not been established. Hence,
Cintria was unwilling to investigate the case genuinely.
II.B. The case is of sufficient gravity to be heard by the ICC
39. Pursuant to the Art. 17(1)(d) of the Rome Statute,49 the case is admissible if it is of sufficient
gravity. To meet the gravity threshold, the conduct must be of serious concern to the international
community.50 While assessing the gravity, not only the number of victims, but also qualitative
dimension such as manner of commission, impact of the crime51 and aggravating factors should
be considered.52 The alleged crime involves particular features that make it especially grave.
40. The manner of commission of the crime may be assessed, inter alia, by the means employed to
execute the crime. The impact should be determined by the damage inflicted on the affected
community and increased vulnerability of victims.53 Regarding the aggravating factors, reference
should be made to the existence of circumstances listed in rule 145(2)(b) of the Rules, which
mentions, inter alia, the commission of the crime in case of defenseless victims, commission of
the crime with particular cruelty and for any motive involving discrimination54 and hate speech.55
41. With respect to the manner of commission, facts show that the alleged crime resulted from a plan,
organised immigration policy and abuse of power by the state officials. Regarding the impact of
the crime, the vulnerability of victims, their relatives and eyewitnesses increased due to the fact
that they were absolutely defenseless. Concerning the aggravating factors, elements of particular
cruelty are also established, since victims were kept under terrible conditions with no means of
communication or medical treatment [Case, para. 14]. Moreover, 2 Islanders who were shot, did

46
ECtHR, Nachova and others v. Bulgaria, 43577/98 and 43579/98, Judgment, 6 July 2015, para. 114;
Triffterer/Ambos, 2016, p. 819; Arbour et al., in von Hebel et al. (eds.), Reflections on the International Criminal
Court – T.M.C. Asser Press. (2009), p. 131.
47
ECtHR, Nachova and others v. Bulgaria, 43577/98 and 43579/98, paras 114 – 117.
48
ECtHR, Timurtas v. Turkey, Application 23531/94, Judgment, 13 June 2000, paras 88,110.
49
Rome Statute, Art. 17(1)(d).
50
Rome Statute, Preamble, para. 4.
51
ICC, Prosecutor v. Abu Garda, ICC-02/05-02/09-243-Red, Decision on the Confirmation of Charges, 8 February
2010, paras 31-32.
52
ICC, Prosecutor v. Charles Blé Goudé, Decision on the Defence challenge to the admissibility of the case against
Charles Blé Goudé for insufficient gravity. No.: ICC-02/11-02/11 Date: 12 November 2014, para. 12.
53
ICC, OTP, Policy paper on case selection and prioritization, 15 September 2016, paras 40- 41.
54
ICC, Rules of Procedure and Evidence, Rule 145(2)(b).
55
ICC. Prosecutor v. Charles Blé Goudé, ICC-02/11-02/11, Decision on the Defence challenge to the admissibility
of the case against Charles Blé Goudé for insufficient gravity, 12 November 2014, paras 12, 21.

10
 not get any medical assistance [Case, para. 17]. Also, the new immigration policy was targeted
exclusively against Islanders [Case, para. 15], what indicates discrimination. In addition, Ms.
Fiona Calanta exploited her influence over the state officials and Cintria citizens, inter alia,
through hate speech and negative statements against immigrants [Case, para. 8].
42. Such factors mean that cruelty regarding refugees have been considered by Ms. Calanta as the
acceptable way of achieving prosperity for the State thus raising serious concerns for the
international community. Hence, the case is of sufficient gravity. Therefore, the complementarity
and gravity tests are satisfied, and the case is admissible to be heard by the Court.
III. THERE ARE REASONABLE GROUNDS TO BELIEVE THAT MS. CALANTA IS
CRIMINALLY RESPONSIBLE FOR CRIMES OF DEPORTATION AND MURDER
43. An indirect co-perpetration and ordering as modes of liability are used to bring the senior leaders to
justice for committed crimes. Prosecution submits that Ms. Calanta is liable for indirect co-
perpetration in commission of the crime of deportation and for ordering the crime of murder since all
elements of (III.A) indirect co-perpetration, as well as elements of (III.B) ordering are satisfied.
III.A. Ms. Calanta is indirect co-perpetrator of crime against humanity of deportation under
Art. 25 (3)(a) of the Rome Statute
44. Art. 25(3)(a) of the Statute establishes responsibility for committing a crime jointly with another
person.56 Moreover, co-perpetrators may be liable for executing crimes not only directly, but also
through another person,57 which leads to indirect co-perpetration. In the present case, Prosecutor
submits that Ms. Calanta fulfilled all elements of indirect co-perpetration, namely, (i) existence of
common plan, (ii) essential contribution within the common plan, (iii) joint control over the direct
executors of crimes and (iv) awareness and intent of indirect co-perpetrator.58
45. With respect to the first element, the ICC in Lubanga case has emphasised that the common plan
must contain a risk that implementation of the plan will result in commission of the crime.59
Additionally, the common plan may be expressed in a legislative act.60 For instance, in Stakić, the
Court held that the Instructions, issued by the Main Board of the Serbian Democratic Party of Bosnia
and Herzegovina, proclaimed the common plan of the crimes against humanity.61
46. In the present case, the existence of the common plan was prescribed in Immigration Act, which was
proposed by Minister Marshal. Particularly, this Act has provided for numerous violations, such as,

56
Rome Statute, Art. 25(3)(a)
57
ICC, Prosecutor v. Charles Blé Goudé, ICC-02/11-02/11, Decision on the confirmation of charges, 11 December 2014,
para. 134.
58
ICC, Prosecutor v. Blé Goudé, ICC-02/11-02/11, para. 137.
59
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the confirmation of charges, 29 January 2007, para. 344.
60
ICTY, Prosecutor v. Simić, Tadić and Zarić, IT-95-9-T, Judgment, 17 October 2003, para. 158.
61
ICTY, Prosecutor v Stakić, IT-97-24-T, Judgment (TC), 31 July 2003, para. 470.

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 inter alia, stripping of status and removing from the country lawfully present immigrants for
misdemeanours [Case, para. 11]. Ms. Calanta has expressed her intent to take aggressive measures
against immigrants and authorized Mr. Marshal to create thе Act [Case, para. 10].
47. To fulfil the essential contribution element, co-perpetrator shall activate the mechanisms leading to
the automatic compliance with the orders and subsequent commission of crimes. 62 Moreover, ICC
underlined that it is not required to be present on crime scene for the essential contribution.63
48. Although Ms. Calanta was not present at the scenes of crimes, the commission of crimes without her
contribution would be impossible. Being a President of the country, Head of the Government and
leader of majority party in the Parliament [Case, para. 1-3], Ms. Calanta has developed the whole
anti-immigration policy of the Cintria having influence on two branches of power. Without her
contribution, the Immigration Act would neither be designed, nor adopted. Additionally, Ms. Calanta
and her officials spread the hostile attitude to immigrants through their speeches, which allowed the
execution of crime of deportation.
49. With regard to the element of joint control, co-perpetrators have relied on organized subordinates.64
The Court in Katanga also brought out the requirement of automatic compliance with the orders,
where direct perpetrator is an anonymous figure, who can be replaced in any time. Such
automatization must ensure inability to frustrate the plan by any direct perpetrator. 65 Pursuant to case
facts, the direct perpetrators of the crimes were immigration officers, who were in subordination of
Mr. Marshal [Case, para. 12] who forms governmental hierarchical forces. This indicates existence
of automatic mechanism of executing commanders’ orders.
50. The requirement to be aware of the common plan and accept that its implementation will result in the
fulfilment of the material elements of the crimes was established in Bemba decision66 and later
confirmed in Banda67 and Aby Garda68 decisions. The evidence of awareness and intent of the
perpetrator may be illustrated by the meetings and instructions to executors, as it was provided in Blé
Goudé,69 or, alternatively, it could be derived from perpetrator’s speeches.70

62
ICC, Prosecutor v. Kenyatta, ICC-01/09-02/11, Decision on the confirmation of charges (PTC), 23 January 2012, para.
403.
63
ICC, Prosecutor v. Kenyatta, ICC-01/09-02/11, para. 402.
64
ICC, Prosecutor v. Charles Blé Goudé, ICC-02/11-02/11, para. 149.
65
ICC, Prosecutor v. Katanga, ICC-01/04-01/07, para. 515.
66
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute
on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 351.
67
ICC, Prosecutor v. Banda, ICC-02/05-03/09, Corrigendum of the "Decision on the Confirmation of Charges", 7 March
2011, para. 150.
68
ICC, Prosecutor v. Abu Garda, ICC-02/05-02/09, Decision on the Confirmation of Charges, 8 February 2010, para.
161.
69
ICC, Prosecutor v. Blé Goudé, ICC-02/11-02/11, para. 155.
70
ICTR, Prosecutor v. Nahimana, ICTR-99-52-A, Appeal Judgement, 28 November 2007, para. 709.

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51. In Ms. Calanta’s speech on 28 August 2018 she underlined her intent to “react strongly against illegal
immigrants”. Later, in the New Year speech, Ms. Calanta approved the whole policy of the Ministry
of Immigration, and found the process of deportations satisfactory [Case, para. 20]. Consequently,
she was aware about the common plan and had intent to implement it.
52. Since objective and subjective elements of indirect co-perpetration are fulfilled, Ms. Calanta shall be
liable under Art. 25 (3)(a) of the Rome Statute.
III.B. Ms. Calanta is responsible for ordering of the commission of murder under Art. 25 (3)(b)
of the Rome Statute
53. Following the reasoning of ICTR in Semanza case, ordering is a situation where an individual has a
position of authority and uses that authority to order another individual, who is subject to that
authority, to commit a crime.71 Prosecutor claims that Ms. Calanta ordered the commission of the
crime of murder, since all the constitutive elements of such mode of liability are present.72
54. Firstly, Prosecution claims that Ms. Calanta was in the position of authority over direct perpetrators.
In Setako and Semanza, the position of authority is expressed in ability to compel another person to
commit a crime.73 Also, no formal superior-subordinate relationship with the perpetrator is required.74
Established authority with absence of superior-subordinate relationship is illustrated by Gatete,
where, similarly to present case, accused used prominent personality, general authority and his
personal presence to order the commission of crimes of murder.75
55. The police officers, who were the perpetrators of crimes of murder, were a part of hierarchical forces
subordinated to the government. Although Ms. Calanta was not direct superior over the perpetrators,
she was the President and the head of the Government, which granted her authority over each of the
members of the Government, different governmental structures and forces, including the police.
56. Moreover, Prosecution submits that Ms. Calanta ordered direct executors to commit crimes. In
Kamuhanda and Mudacumura, the Court held that order to commit a crime which in fact occurs or is
attempted76 may be given in any form77. For instance, in Gatete accused expressed orders to kill
Tutsis with the phrase “work relentlessly”.78 Turning to the present case, Ms. Calanta in her speeches
repeatedly invoked to “react strongly against illegal immigrants”. Prosecutor claims that similarly to

71
ICTR, Prosecutor v. Semanza, ICTR-97-20-A, Appeal Judgement, 20 May 2005, para. 360.
72
ICTY, Prosecutor v. Blaškić, IT-95-14-A, Appeals Judgment, 27 January 2005, para. 41.
73
ICTR, Prosecutor v. Setako, ICTR-04-81-A, Appeal Judgement, 28 September 2011, para. 240.
74
ICTR, Prosecutor v. Semanza, ICTR-97-20-A, Appeal Judgement, 20 May 2005, para. 361.
75
ICTR, Prosecutor v. Gatete, ICTR-2000-61-T, Trial Judgement, 31 March 2011, para. 589.
76
ICC, Prosecutor v. Mudacumura, ICC-01/04-613, Decision on the Prosecutor's Application under Article 58, 13. July
2012, para 63.
77
ICTR, Prosecutor v. Kamuhanda, ICTR-99-54A-A, Appeal Judgement, 19 September 2005, para. 76.
78
ICTR, Prosecutor v. Jean-Baptiste Gatete, ICTR-2000-61-T, Trial Judgement, 31 March 2011, para. 589.

13
 Kamuhanda, these words in the context of hostile attitude towards immigrants should be interpreted
as an order to commit the crime of murder.
57. The third element of ordering is a direct effect on the commission of the crimes of murder. It is
sufficient that the order substantially contributed to the physical perpetrator’s criminal conduct. 79 Ms.
Calanta has built the aggressive national policy against immigrants. Her calls for dealing with
immigrants resulted in committing murders against immigrants in an ordinary course of events. Thus,
Prosecutor claims that there is a direct link between Ms. Calanta’s orders and commission of murders.
58. With respect to subjective element of the crime, in accordance with Mudacumura case, firstly, the
accused should be aware about the factual circumstances of situation in the country and, secondly,
his/her orders must result in commission of crimes. Ms. Calanta was aware of committing the crime
of murder.80 The proof of Ms. Calanta’s awareness about the immigration problem in Cintria could
be inferred from her hate speeches which created discriminative attitude to the immigrants. The fact
that Ms. Calanta refused to investigate all of the crimes of murder indicates not only her awareness,
but also her intent to cover up the commission of the crimes. Consequently, the requirement of
awareness of committing the crimes is present. On these grounds, all the elements of ordering are
fulfilled. Thus, Ms. Calanta is liable for ordering committing crimes of murder.
59. For the aforementioned reasons, Prosecution submits that Ms. Calanta is liable under Art. 25(3)(a) as
indirect co-perpetrator of the crime against humanity of deportation and is also criminally responsible
for ordering the crime against humanity of murder under Art. 25(3)(b) of the Rome Statute.
PRAYER FOR RELIEF
60. On the basis of the evidence provided, the Prosecution respectfully requests the Court to find that:
I. The case against Ms. Calanta falls within the jurisdiction of ICC;
II. The case against Ms. Calanta is admissible to be heard by this Court;
III. Ms. Calanta is criminally responsible for of deportation and murder.
Respectfully submitted,
Office of the Prosecutor

79
ICTY, Prosecutor v. Boškoski & Tarčulovski, IT-04-82-A, Appeal Judgement 19 May 2010, para. 160.
80
ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1-Red, para. 67.

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