NUREMBERG MOOT COURT 2020

Team: N097

Defence

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 TABLE OF CONTENTS

I. THE COURT HAS NO JURISDICTION ............................................................................... 3

I.A THE CONDITIONS OF RATIONE TEMPORIS HAVE NOT BEEN MET ................................................ 3
I.B THE CONDITIONS OF RATIONE LOCI HAVE NOT BEEN MET ........................................................ 3
I.C THE CONDITIONS OF RATIONE PERSONAE HAVE NOT BEEN MET ................................................ 4
I.D THE CONDITIONS OF RATIONE MATERIAE HAVE NOT BEEN MET ................................................ 4
I.D.1 There is no basis on which to establish the contextual elements of Article 7(1) ................ 4

II. THE CASE IS INADMISSIBLE .............................................................................................. 6

II.A THIS CASE IS INADMISSIBLE PURSUANT TO ARTICLE 17(1) OF THE STATUTE .......................... 6
II.A.1 This case is inadmissible pursuant to article 17(1)(a) of the Statute as an
investigation has taken place........................................................................................................ 6
II.A.2 The instant case does not meet the gravity threshold required by 17(1)(d) due to
a lack of intent and active participation. ...................................................................................... 7
II.B ALTERNATIVELY, THE CASE DOES NOT ENGAGE ARTICLE 17(1) .............................................. 8

III. MS. CALANTA IS NOT CRIMINALLY RESPONSIBLE ................................................... 8

III.A. THE CONTEXTUAL ELEMENT OF NEITHER CRIME IS FULFILLED ............................................. 8

III.B. PURSUANT TO ARTICLE 25(3)(B), THE REQUIREMENTS FOR LIABILITY FOR MURDER ARE
NOT FULFILLED ................................................................................................................................ 8
III.B.1. The conduct aspect (ordering) of the objective element is not satisfied ......................... 8
III.B.2. The subjective element for murder is not satisfied........................................................ 10
III.B.3. There can be no murder liability under Article 28(b) ................................................... 10
III.C. PURSUANT TO ARTICLE 25(3)(A), THE REQUIREMENTS FOR LIABILITY FOR DEPORTATION
ARE NOT FULFILLED ....................................................................................................................... 11
III.C.1. The deportations in question do not satisfy the requirements of the Statute ................. 11
III.C.2. Indirect co-perpetration has no legitimate basis in the statute ...................................... 12
III.C.3. The objective element of indirect co-perpetration is not satisfied ................................ 12
III.C.4. The subjective element of indirect co-perpetration is not satisfied ............................... 13

IV. PRAYER FOR RELIEF.......................................................................................................... 14

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 I. THE COURT HAS NO JURISDICTION
1. The ICC (“the Court”) should use the ‘kompetenz-kompetenz’ doctrine1 to find that there is
no basis to find ratione temporis (I.A), ratione loci (I.B), ratione personae (I.C) and ratione
materiae (I.D).

I.A THE CONDITIONS OF RATIONE TEMPORIS HAVE NOT BEEN MET

2. Pursuant to Article 11 of the Rome Statute (“the Statute”), 2 the Court may only exercise
jurisdiction over crimes committed after the entry into force of the Statute or, where a State
has become party to the Statute at a later date (“State party”), after the entry into force of the
Statute for that State.

I.B THE CONDITIONS OF RATIONE LOCI HAVE NOT BEEN MET

3. In order to find territorial jurisdiction, it must be established that the crimes were committed
on the land of a State party – in this case, Verden. In fact, the Prosecutors are relying only on
an NGO to establish that certain alleged crimes must have occurred on Verdenian territory.
4. The 12 deaths that occurred while the deceased were in Cintrian custody occurred ‘in transit’.3
This is insufficient evidence on which to establish that these deaths occurred in Verden. All
the other allegations are based on similarly inconclusive assumptions with no certainty as to
whether any of the alleged crimes occurred on Verdenian territory. Thus, the Court is unable
to conclude that it has territorial jurisdiction.
5. The two deaths that occurred in Verden were, firstly, caused by a lack of medical assistance
in Verden as a result of a failure in Verden’s health service. The shootings of the two deceased
were lawful interventions by police who acted to uphold the law. 4 The Statute is silent on the
issue of whether acts committed in a non-State party that ‘mature’ or ‘have effect’ in a State
party constitute an act within the territory of the State party for the purposes of establishing
jurisdiction.5 It must be interpreted, therefore, that the commission of an offence is in the
territory on which the ratione loci is founded. Thus, the fact that there may have been deaths
in Verden of people who were previously in Cintria is unhelpful in assessing jurisdiction.

1 Rome Statute, Art.19(1).

2 Rome Statute, Art.11.
3 Case facts, para. 17.
4 Case Facts, para. 17.
5 W. Schabas, “An Introduction to the International Criminal Court” (2001), p. 63.

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 I.C THE CONDITIONS OF RATIONE PERSONAE HAVE NOT BEEN MET

6. The principle of pacta tertiis nec nocent nec prosunt should hold true. Treaty obligations must
not bind, or de jure impact, those people and states that have decided not to take on any such
international obligation.6
7. There is, contrary to some scholarly authorship, no international law norm on which to base
an assumption that there is a delegation of territorial jurisdiction. The idea that jurisdiction
should be found on territory alone, for the purposes of Article 12(2)(a),7 is a “legal
innovation”.8 Instead, the international standard should require both territorial and personal
jurisdiction in order to establish a wide ratione loci.
8. “[T]he ICC will not have jurisdiction over an individual who committed crimes on the
territory of a non-State party and who is a national of a non-State party”.9 As outlined above,
where there is no personal jurisdiction the court must exercise no jurisdiction, or at the very
least, set the threshold for establishing jurisdiction much higher.

I.D THE CONDITIONS OF RATIONE MATERIAE HAVE NOT BEEN MET

9. In order to establish jurisdiction over these alleged offences, the Court must have reasonable
grounds10 on which to believe that a crime against humanity may have been committed. 11 It
is on this basis that the Court may establish jurisdiction over the subject of dispute. It is this
submission that there are not reasonable grounds on which to find that the contextual
components (I.D.1) are established, insofar as it is required to establish ratione materiae
jurisdiction. Thus, the Court should find no jurisdiction over these alleged crimes against
humanity.

I.D.1 There is no basis on which to establish the contextual elements of Article 7(1)

10. The Court must find that the alleged crimes were a “widespread or systematic attack directed
against any civilian population, with knowledge of the attack”. 12 The facts do not prove that

6 M. Morris, “High Crimes and Misconceptions: The ICC and Non-Party States”, Law and Contemporary Problems
(2001) p.45.
7 Rome Statute, Art.12(2)(a).
8 M. Morris, “High Crimes and Misconceptions: The ICC and Non-Party States”, Law and Contemporary Problems
(2001), p.45.
9 M. Wagner, “The ICC and its Jurisdiction – Myths, Misperceptions and Realities”, p. 486.
10 ICC, Situation in the Republic of Cote D’Ivoire, ICC-02/11, Corrigendum to “Decision Pursuant to Art. 15 of the
Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Cote d’Ivoire”, 15
November 2011, para. 26.
11 Rome Statute, Art.7.
12 Rome Statute, Art.7(1).

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 the alleged attack is ‘widespread or systematic’, or that there is a nexus between acts of
individuals and the alleged attack.
The alleged attacks were not widespread or systematic

11. The term “widespread” is defined as a “massive, frequent, large scale action, carried out
collectively with considerable seriousness and directed against a multiplicity of victims”.
Similarly, “systematic” has been defined as “thoroughly organised and following a regular
pattern on the basis of a common policy involving substantial…resources”. 13 The Court must
render a normative judgment on the meeting of these conditions with due regard to the fact
that the threshold is very high – this is crucial in ensuring that the Court does not find
jurisdiction over a case that is not of the utmost seriousness. Those cases must be left to
domestic courts.14
12. The magnitude for finding an attack as ‘widespread’ is understood as covering a very wide
group of people across distinctly differing geographical areas.15 In Ruto, the attack was spread
across numerous, separate villages throughout four provinces, causing deaths – without
exception – in every case. This is clearly distinguished from the present case, where the deaths
were incidental to the purpose and there is no suggestion that they occurred across such a wide
area in large numbers.16
13. Similarly, the threshold for “systematic” is not met as no deaths occurred as a result of a
“common policy” with any “regular pattern” – rather, some deaths occurred as a result of
lawful actions of law enforcement in ensuring the removal of individuals who were no longer
legally resident in Cintria.17 The unlawful acts of individuals in law enforcement roles resulted
in successful prosecutions.18 As such, the facts do not satisfy the high thresholds for either
‘widespread’ or ’systematic’.

There is no discernible nexus between individual acts and the alleged attack
14. In order to attribute particular acts to Ms. Calanta the individual acts must be inextricably
linked to an overall attack. The individual acts, where committed unlawfully, were prosecuted
– for example, the police officers that were prosecuted for the murders of 3 victims during
their deportation.19 In fact, none of the acts in dispute are attributable to a single ‘attack’ as

13 ICTR; Prosecutor v Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, para. 70.

14 M. Wagner, “The ICC and its Jurisdiction – Myths, Misperceptions and Realities”, page 436.
15 ICC, Prosecutor v. Ruto, Koshey and Sang, ICC-01/09-01/11, 23 January 2012, para. 176.
16 Case Facts, para. 17, 20.
17 Case Facts, para. 11.
18 Case facts, para. 16.
19 Case facts, para. 16.

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 they are made up of isolated acts of many actors that are clearly acting autonomously. 20 In
particular, the deaths of 14 islanders during transport is incidental in the context of thousands
of individuals being deported lawfully and successfully. 21 This illustrates how the alleged
attack is actually a complex construct of “isolated act[s]” that are in fact “removed from the
attack” such that “it cannot reasonably be said to have been part of the attack”.22
15. Therefore, the Court does not have a stable basis on which to find that it has jurisdiction over
these matters.

II. THE CASE IS INADMISSIBLE

II.A THIS CASE IS INADMISSIBLE PURSUANT TO ARTICLE 17(1) OF THE

STATUTE

II.A.1 This case is inadmissible as an investigation has taken place

16. It is submitted that the instant case is being investigated. Cintria has fulfilled its sovereign
duty to exercise jurisdiction over those responsible for committing international crimes.23
17. The Court defines the process of investigating as the “taking of steps to ascertain whether
[the] individual is responsible for that conduct”.24 The Court clarifies that activities such as
“interviewing witnesses and gathering of documentary evidence” fall within the scope of this
definition. Ms. Calanta has clearly shown that the initial investigative steps were taken as
those responsible were held accountable, and police intelligence suggested that the other
deaths were perpetrated by unknown individuals.25 This level of police intelligence
presupposes the necessary activities constitutive of an investigation for the purpose of Article
17(1)(a). Thus, despite no further actions being taken following Ms. Calanta’s address it is
submitted that the initial investigative steps have taken place. It is immaterial that the object
of investigations is formally Cintrian officials, the presupposed intelligence captures any and

20 Case Facts, para. 15, 16.

21 Case Facts, para. 20.
22 ICTY; Prosecutor v. Kunarac, Kovac and Vukovic, IT-96-23-T and IT-96-23/1-A, 12 June 2002, para. 100.
23 Preamble para 6, Rome Statute.
24 ICC, Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, (Case No. ICC-
01/09-02/11-274), Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case
Pursuant to Article 19(2)(b) of the Statute, 30 August 2011, paras 1 and 40.
25 Case Facts para 13.

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 all actions undertaken by Ms. Calanta. Thus, the “same conduct/same person” test is
fulfilled.26
18. Upon proving the existence of an investigation, the burden falls on the Prosecution to show
that Cintria was “unwilling or unable to genuinely carry out the investigation”.27
19. It is submitted that Cintria conducted its investigation willingly. There is no evidence to
suggest that the proceedings were undertaken to shield Ms. Calanta from criminal
responsibility nor is there any evidence to suggest that they were not conducted in a timely
and independent manner.28 First, Ms. Calanta’s speech merely articulated the internal and
substantiated decision of the police force to not take further action. Second, independent
mechanisms of oversight were fully operational with past misconduct by Cintrian officials
being directly addressed.29 Finally, the timeliness of Cintria’s intervention is evidenced by the
spontaneous initiation of the investigative steps. Furthermore, it is submitted that Cintria as
a sovereign state with a stable constitution, is sufficiently able to investigate.30

II.A.2 The instant case does not meet the gravity threshold required by 17(1)(d)
due to a lack of intent and active participation

20. Should the Court find inaction on the part of Cintria, it is submitted that the case is excluded
based on its marginal gravity.31
21. The charged crime was of a limited scale with only 14 victims.32 The degree of intent and
participation of the accused was extremely limited. The defendant lacked the intent to kill (see
III.B.1 para 33),33 and she was not actively participating in the commission of the alleged
crime itself.34 In the context of a lawful removal,35 these countervailing considerations render
the case inadmissible.

26 ICC, Prosecutor v. Gaddafi, ICC-01/11-01/11-547-Red, Judgment on the appeal of Libya against the decision of
PreTrial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi",
21 May 2014, para. 83.
27 Article 17(1)(a) Rome Statute.
28 Rome Statute, Art. 17(2).
29 Case Facts, para. 16.
30 Case Facts, para. 2.
31 ICC, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Judgment on the appeal of Mr Al
Hassan against the decision of Pre-Trial Chamber I entitled ‘Décision relative à l’exception d’irrecevabilité pour
insuffisance de gravité de l’affaire soulevée par la défense, No. ICC-01/12-01/18 OA, 19 February 2020, para 26.
32 Office of the Prosecutor of the International Criminal Court Paper on Preliminary Examinations (2016), paras. 216,
218.
33 Case Facts, para. 10.
34 ICC, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Judgment on the appeal of Mr Al
Hassan against the decision of Pre-Trial Chamber I entitled ‘Décision relative à l’exception d’irrecevabilité pour
insuffisance de gravité de l’affaire soulevée par la défense, No. ICC-01/12-01/18 OA, 19 February 2020, para 89.
35 Case Facts, para. 20.

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 II.B ALTERNATIVELY, THE CASE DOES NOT ENGAGE ARTICLE 17(1)

22. It is submitted that the case does not engage Article 17(1) as the 14 deaths occurred outside
the jurisdiction of Cintria. Specifically, the consequence element of the alleged crime did not
take place in Cintria.36 Thus, jurisdiction to enforce reliant on a territorial link, absent
authorisation by “virtue of a permissive rule derived from international custom or from a
convention”37 renders further investigation impossible.
23. The alleged crime, commission of the order of murder, was not completed within Cintrian
territory thus failing the territoriality principle. Cintrian intelligence suggests that the acts
were carried out by unknown individuals.38 Cintria does not have the necessary jurisdiction
to investigate therefore article 17(1) is not engaged.

III. MS. CALANTA IS NOT CRIMINALLY RESPONSIBLE

III.A. THE CONTEXTUAL ELEMENT FOR NEITHER CRIME IS FULFILLED

24. For the reasons enunciated at I.D.1, it is submitted that the alleged crimes were not objectively
committed “as part of a widespread or systematic attack directed against any civilian
population”.39 In the absence of these objective circumstances, Ms. Calanta could not have
fulfilled the requisite subjective element, namely knowledge of those circumstances.

III.B. PURSUANT TO ARTICLE 25(3)(B), THE REQUIREMENTS FOR LIABILITY

FOR MURDER ARE NOT FULFILLED

III.B.1. The conduct aspect (ordering) of the objective element is not satisfied

25. The objective element of murder requires that the relevant conduct caused the consequence
of death. In this case, the relevant conduct element is prescribed by Art.25(3)(b) which
requires: (1) position of authority; (2) instruction; (3) direct effect, and; (4) the requisite
mental element.40

36 Case Facts, para. 17. Clarification 2.

37 Permanent Court of International Justice, SS Lotus (France v Turkey), PCIJ Reports, Series A, No. 10, 7th September
1927, para. 9.
38 Case Facts, para. 20.
39 Rome Statute, Art. 7(1).
40 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC
II, 13 July 2012, para. 63; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a)
and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PTC II, 9 June 2014, para. 145.
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 26. “Position of authority” requires de facto authority; it is not sufficient to show merely that the
President had authority to issue orders, but that compliance with such orders was required and
enforced41. The case law shows enforcement of orders via control over marriage and access
to outside information42 as well as “execution of disobedient subordinates”.43 This kind of
authority is clearly distinguishable from that exercised by Ms. Calanta over ministers and
officers, which could only have extended to the financial threat to relieve them of their duties.
27. “Instruction” requires that another person is ordered to “commit a crime which in fact occurs
or is attempted”.44 In this case, the relevant crime is murder, however, there is no evidence at
all of an instruction which orders the commission of the crime to murder Islanders. Contextual
factors are not relevant – an order which clearly and objectively mandates the deportation of
migrants who commit crimes cannot be read as an order to kill.45
28. “Direct effect”46 requires the order to have had a material causal effect upon the crime, which
cannot be proven here. Because the instruction did not order killings, any killings which in
fact occurred thereafter were purely coincidental. The 12 deaths in Cintrian custody,47 and the
2 shootings were thus isolated examples of individual negligence, criminal responsibility, or
a reasonable use of force, dependent on the circumstances. This disconnect between the order
and killings is reinforced by the conviction of 3 officers for murder,48 which would not have
occurred had those officers been complying with an order to kill.
29. The required mental element for ordering is knowledge: “the person is at least aware that the
crime will be committed in the ordinary course of events as a consequence of the execution
or implementation of the order”.49 This knowledge cannot be inferred retroactively – just
because Islanders in fact died, there is no basis in the orders themselves to suggest that Ms.

41 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC
II, 13 July 2012, para. 64; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a)
and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PTC II, 9 June 2014, para. 147-
149.
42 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC
II, 13 July 2012, para. 64.
43 Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PTC II, 9 June 2014, para. 149.
44 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC
II, 13 July 2012, para. 63; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a)
and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PTC II, 9 June 2014, para. 145.
45 Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PTC II, 9 June 2014, para. 148.
46 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC
II, 13 July 2012, para. 63, 66.
47 Case Facts, para. 17.
48 Case Facts, para. 16.
49 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC
II, 13 July 2012, para. 63.
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 Calanta was aware that Islanders would be killed as a result of her order, only that those who
had committed crimes would be deported.

III.B.2. The subjective element for murder is not satisfied

The subjective element for the conduct is not fulfilled

30. In addition to the specific knowledge required for the conduct of “ordering” (para. 29),
Art.30(2)(a) requires dolus directus of the first degree, i.e. where the “person means to engage
in the conduct”. Ms. Calanta did not intend to issue any order to kill because her intention was
actually to reduce crime and improve economic performance in Cintria by tackling illegal
immigration, not by tackling lawful Spelligian residency or asylum applicants. Therefore, her
instruction only extended to taking “concrete and extensive measures to tackle illegal
immigration”50 (emphasis added) and not the commission of murder.
The subjective element for the consequence is not fulfilled
31. Art.30(2)(b) allows for dolus directus of the second degree in respect of a consequence
element where the person is “aware that [the consequence] will occur in the ordinary course
of events”. It is submitted that this provision is exhaustive and does not encompass the lower
mental standard of dolus eventualis (recklessness). In Bemba, it was stated: “with respect to
dolus eventualis as the third form of dolus, recklessness or any lower form of culpability, the
Chamber is of the view that such concepts are not captured by Article 30 of the Statute”.51
PTC II cited the drafter’s intentions and the literal interpretation of the wording in their
reasoning.52 Article 30 was also explicitly limited to dolus directus in Katanga et al.53
32. Ms. Calanta possessed neither dolus directus of the first or second degree. There is no
evidence that Ms. Calanta meant to kill immigrants, rather her direct intention was to remedy
the economic difficulties and crime in Cintria via policies on illegal immigration.54 There is
also no reason to expect Ms. Calanta to have been aware that deaths would occur “in the
ordinary course of events” as deportations are not generally a dangerous or risky activity
which would give rise to a virtual certainty of death.

III.B.3. There can be no murder liability under Article 28(b)

50 Case Facts, para. 10.

51 ICC, Prosecutor v. Bemba, ICC-01/05-01/08, Decision Pursuant to Article 67(7)(a) and (b) of the Rome Statute on
the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, PTC II, 15 June 2009, para. 360.
52 Ibid., paras. 361-369.
53 ICC, Prosecutor v. Katanga et al., ICC-01/04-01/07, Decision on the confirmation of charges, PTC I, 30 September
2008, para. 423.
54 Case Facts, para. 8.

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 33. Art.28(b) creates omissions liability where subordinates under the “effective responsibility
and control” of the defendant commit crimes which the defendant knew about, where the
defendant fails to “take all necessary and reasonable measures… to prevent or repress their
commission”. The required knowledge also includes where a defendant “consciously
disregarded information which clearly indicated that the subordinates were committing…
such crimes”. Therefore, Art.28(b) can be satisfied with mere dolus eventualis.
34. However, ICC case law clearly states that in the case of murder, an intention to kill is required.
The PTC in Katanga et al held that: “this offence encompasses, first and foremost, cases of
dolus directus of the first and second degree”,55 with the result that “the ICC has no
jurisdiction over reckless killing and reckless murder as war crimes or crimes against
humanity”.56 Therefore, even if Ms. Calanta should have known that deaths were occurring
given the widespread reporting,57 there can be no omissions liability.

III.C. PURSUANT TO ARTICLE 25(3)(A), THE REQUIREMENTS FOR LIABILITY

FOR DEPORTATION ARE NOT FULFILLED

III.C.1. The deportations in question do not satisfy the requirements of the Statute

35. Deportation is defined as “forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present without grounds permitted
under international law”.58
36. None of the deported Islanders were “lawfully present” in Cintria at the time of removal.
Under the 1951 Convention, a person is only a “refugee” where they are a person who “owing
to well-founded fear of being persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, [were] outside the country of [their]
nationality”59. The main reason most Islanders were in Cintria was as a result of the “king
tides” and economic conditions in Spellige. 60 Natural phenomena are not lawful grounds to
be in another Contracting State under the 1951 Convention. Therefore, expelling the asylum
seekers was within the legal power of Ms. Calanta’s government.

55 ICC, Prosecutor v. Katanga et al., ICC-01/04-01/07, Decision on the confirmation of charges, PTC I, 30 September
2008, para. 423.
56 Elies van Sliedregt, Individual Criminal Responsibility in International Law (1st edn OUP, 2012), p. 49.
57 Case Facts, para. 17.
58 Rome Statute, Art. 7(2)(d).
59 Convention Relating to the Status of Refugees (1951), Article 1(A)(2).
60 Case Facts, para. 6.

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 37. The 697 Islanders stripped of permanent residence and the 136 who had their work visas
revoked61 were not “lawfully present” either. Cintria has the sovereign right to determine the
conditions of its citizenship and residence and enacted the Immigration Act to change those
conditions. Any immigrant who committed a crime in Cintria was liable to be stripped of their
status62 in line with the legitimate policy of crime reduction mentioned in earlier speeches.63
Allegations of a memo which specifically discriminated by targeting Spelligians originated
from members of the opposition party 64 and as such, should be disregarded or at least taken
with caution. Overall, the visas and permits were revoked in accordance with a law passed by
a democratic Government under a constitution,65 and as such, those 833 Islanders were in
Cintria unlawfully as soon as their documents were revoked and could be deported lawfully.
38. Even if some of the Islanders were lawfully present, Ms. Calanta may rely on the defence of
“grounds permitted under international law”.66 The 1951 Convention states that “the
Contracting States shall not expel a refugee lawfully in their territory save on grounds of …
public order”.67 Islanders were responsible for public disorder such as during their violent
climate protest68 and the fact that “increase in criminality… coincided with the growing
number of Islanders in Cintria”.69

III.C.2. Indirect co-perpetration has no legitimate basis in the statute

39. Indirect co-perpetration is not found in the statute as Art.25(3)(a) states: “[the defendant]
commits a crime, whether as an individual, jointly with another or through another person”.
The word ‘or’ maintains separation between joint-commission and indirect perpetration.70
Furthermore, such a mode of liability has no national normative basis: “the Defence has not
come across a single legal tradition where criminal liability exists on the basis of indirect co-
perpetration”.71

III.C.3. The objective element of indirect co-perpetration is not satisfied

61 Case Facts, para. 16.

62 Case Facts, para. 11.
63 Case Facts, para. 8.
64 Case Facts, para. 15.
65 Case Facts, para. 2.
66 Rome Statute, Art. 7(2)(d).
67 Convention Relating to the Status of Refugees (1951), Article 32(1).
68 Case Facts, para. 11.
69 Case Facts, para. 8.
70 ICC, Prosecutor v. Katanga et al, ICC-01/04-01/07, Defence for Germain Katanga’s Pre-Trial Brief on the
Interpretation of Article 25(3)(a) of the Rome Statute, PTC II, 30 October 2009, paras. 10-24.
71 Ibid., para. 26.

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 40. Assuming its existence, the objective elements of indirect co-perpetration are those of
ordinary joint commission, plus four additional elements from Katanga et al. The elements
of ordinary joint commission are: (1) a common plan, and; (2) coordinated contribution by
each co-perpetrator. There was no common plan, as when Ms. Calanta entrusted her
immigration policy to the Immigration Minister, she did not collude, but merely delegated to
him in line with ordinary principles of executive government. In any case, the ‘coordinated
contribution by each co-perpetrator’ requirement is not satisfied, as after the delegation, the
Minister enacted the policy and there was no further material contribution by Ms. Calanta.
41. The additional elements are: (1) control over the organisation;72 (2) control over the
organisational apparatus of power,73 and; (3) commission of the crime being “secured through
almost automatic compliance with orders”.74 It is accepted that Ms. Calanta, as President, is
at the apex of the executive hierarchy. However, as for organisational control, the de facto
authority lies with the Immigration Minister and not with Ms. Calanta, as demonstrated by
the way he proposed the Immigration Act75 and implemented it.76
42. The automatic compliance requirement was paraphrased by the ICC as where the subordinates
act as “a mere gear in a giant machine in order to produce the criminal result”.77 This was not
the case; the direct perpetrators were individuals in a constitutionally-regulated authority and
could be expected to exercise a degree of discretion, rather than acting without judgment. The
fact that they executed the policy does not show automatic compliance, but individual
motivations such as pay or promotion.

III.C.4. The subjective element of indirect co-perpetration is not satisfied

43. The mental elements of indirect co-perpetration are: (1) the requisite subjective element of
the crime in question (per Art.30);78 (2) the parties to the common plan are mutually aware
that the plan will result in the realisation of the objective element of the crime,79 and; (3)
knowledge of the factual circumstances enabling joint control of the crime.80
The requisite mental element under Article 30 is not satisfied

72 ICC, Prosecutor v. Katanga et al., ICC-01/04-01/07, Decision on the confirmation of charges, PTC I, 30 September
2008, paras. 500-510.
73 Ibid., paras. 511-514.
74 Ibid., paras. 515-518.
75 Case Facts, para. 11.
76 Case Facts, para. 20.
77 ICC, Prosecutor v. Katanga et al., ICC-01/04-01/07, Decision on the confirmation of charges, PTC I, 30 September
2008, para. 515.
78 Ibid., paras. 527-532.
79 Ibid., paras. 533-537.
80 Ibid., paras. 538-539.

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 44. As regards intention for the conduct element of indirect co-perpetration (Art.30(2)(a)), Ms.
Calanta did not intend to create a common plan with her Minister, but simply delegated the
task to him in line with Government practice. This is reinforced by the fact that after
delegation, she made no further material contributions to the enterprise.
45. As regards intention for the consequence element of deportations, Ms. Calanta’s intention was
not to unlawfully deport all Islanders – her direct intention was to improve economic
prosperity and crime rates.81 In the achievement of those objectives, her intent (in the second
degree) was to deport illegal immigrants, as reflected by her “extensive measures” 82, but not
to deport all Islanders.
There was no mutual awareness that the plan would result in the realisation of the crime
nor of the factual circumstances enabling joint control
46. Given that the arrangement between Ms. Calanta and the Minister was not a “common plan
with coordinated contributions”, but a delegation, even if they were mutually aware that the
deportations would occur, they could not have been aware that the crime would be realised as
a result of a common plan.
47. Even though Ms. Calanta and the Minister knew they were in powerful executive positions
which could enable joint control, they were not mutually aware of other factual circumstances.
In particular, the execution of the policy was the work of the Minister 83 and not Ms. Calanta,
meaning she would not necessarily have known about it at the time it was executed. Therefore,
mutual awareness of the factual circumstances surrounding the actual execution of the
deportations was absent.
48. For the above reasons, the subjective and objective requirements of neither murder or
deportation are fulfilled and the contextual element is not satisfied. It is therefore submitted
that Ms. Calanta is not criminally responsible.

IV. PRAYER FOR RELIEF

49. In light of these submissions, the Defence respectfully requests that the Court find the case
outside of their jurisdiction and inadmissible, and that there are no sufficient grounds on which
President Calanta can be found criminally responsible under Articles 25(3)(a) and 25(3)(b).

81 Case Facts, para. 8

82 Case Facts, para. 10
83 Case Facts, para. 11

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