MULTI MOOT COMPETITION

MAY 2022
GOVERNMENT COUNSEL FOR
THE STATE OF ASTIPUR

MK Manaswini: 131902049
Sarnitha B: 131902052
Bharathi Surendran: 131801115
MEMORANDUM for STATE OF ASTIPUR

Original: English Date:

THE APPEALS CHAMBER

SITUATION RELATING TO THE CRIME OF AGGRESSION AGAINST BRAVOS

THE GOVERNMENT COUNSEL FOR THE STATE OF ASTIPUR’S

SUBMISSION IN THE APPEAL FROM THE PRE-TRIAL CHAMBER’S
DECISION ON CONFIRMATION OF CHARGES AGAINST DEFENDANT DANI
TARGARIAN OF CILANTA

PUBLIC DOCUMENT

Source : Counsel for the State of Astipur

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MEMORANDUM for STATE OF ASTIPUR

TABLE OF CONTENTS

Sr. No. Particulars Page No.

1. List of abbreviations 4

2. Index of authorities 5

3. Statement of facts 7

4. Statement of issues 9

5. Summary of arguments 10

6. Written submissions 11

7. Concluding submissions 18

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MEMORANDUM for STATE OF ASTIPUR

LIST OF ABBREVIATIONS

Abbreviation Expanded form

ICCPR International Covenant on Civil and Political Rights

UDHR Universal Declaration of Human Rights

ECHR European Convention on Human Rights

UNSC United Nations Security Council

PTC Pre Trial Chamber

OTP Office of the Prosecutor

CIL Customary International Law

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MEMORANDUM for STATE OF ASTIPUR

INDEX OF AUTHORITIES

REPORTS REFERRED

S.NO PARTICULARS

1. Michelle Benson, Colin Tucker, The Importance of UN Security Council

Resolutions in Peacekeeping Operations

WEBSITES REFERRED

S.NO PARTICULARS

1. https://www.icc-cpi.int/

2. https://digitalcommons.schulichlaw.dal.ca/

3. https://www.researchgate.net/

4. https://www.womenslinkworldwide.org/

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MEMORANDUM for STATE OF ASTIPUR

CASE REFERRED

S.No PARTICULARS

1. Schenk v. Switzerland

2. Prosecutor v. Thomas Lubanga Dyilo

3. BNicaragua v. United States

4. Bemba et al

5. Mbarushimana

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MEMORANDUM for STATE OF ASTIPUR

STATEMENT OF FACTS

Background

1. The State of Astipur (‘Astipur’) is a technologically advanced country with a

strong human rights record and sophisticated military. Astipur neighbours the
Commonwealth of Cilanta (‘Cilanta’) and the Republic of Bravos (‘Bravos’).

2. Cilanta is home to Professor Targarian, the most-cited living international law

scholar in the world. Bravos is a developing country with a history of human rights
abuses and repression of labour strikes.

3. On 21 and 24 July 2018, Bravos launched chlorine aerial bombs in response to

Bravosi mine workers’ protests. The first attack killed 800 labourers. The second attack
killed 1400 civilians. The chlorine was supplied from a company based in Astipur,
Pentaas Chemicals (‘Pentaas’).

Astipur’s involvement

4. The President of Astipur, James Bannister, commissioned the opinion of

Professor Targarian to advise his Cabinet on the legality of airstrikes against Bravos’
facilities where the chlorine aerial bombs were manufactured, stored and deployed (‘the
facilities’). Professor Targarian provided a draft memorandum and a final
memorandum.

5. Professor Targarian’s draft memorandum stated that there ‘is a reasonable case
to be made that the contemplated airstrikes would be a lawful act of humanitarian
intervention’.

6. President Bannister requested a more definitive final memorandum. The final

legal memorandum, provided to President Bannister on 28 July 2018, concluded that
‘Astipur is permitted under international law, on an exceptional basis, to take measures
in order to alleviate overwhelming humanitarian suffering’.

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MEMORANDUM for STATE OF ASTIPUR

7. The Cabinet approved the airstrikes against the facilities to prevent further
chlorine attacks. Fewer than 100 people were killed. Astipur reported the airstrikes to
the President of the UNSC in a communique on 29 July 2018.

The search of Professor Targarian’s home

8. Having been alerted to Professor Targarian’s involvement in the Astipur

airstrikes, the Cilanta federal police entered Professor Targarian’s home between 1:15-
2:00AM on 30 July 2018.

9. No domestic legislation authorised this search. The police indiscriminately

searched Professor Targarian’s family’s personal belongings and removed all
computers found in the home.

10. The police found the memoranda and correspondence between Professor
Targarian and President Bannister on the computers and turned this over to the OTP on
1 August 2018.

Procedural history

11. Pursuant to article 15 bis(6) and (8), the Prosecutor notified the UN Secretary
General of the situation on 5 August 2018.

12. The UNSC did not determine that the airstrikes were an act of aggression. The
Prosecutor relied on the PTC to authorize an investigation.

13. The PTC found substantial grounds to believe that Professor Targarian was
criminally liable for aiding and abetting the crime of aggression.

The present appeal

14. The Defence is appealing against the PTC’s confirmation of charges decision.

15. Astipur has been granted leave to appear as an amicus curiae in this matter
pursuant to rule 103 of the Rules of Procedure.

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MEMORANDUM for STATE OF ASTIPUR

ISSUES RAISED

Pursuant to Pre-Trial Chamber VI’s decision to grant the “Defense Request for Leave to Appeal
Issues in the Confirmation of Charges Decision” (dated March 15, 2019), the Appeals Chamber
seeks submissions of all parties and participants on the following issues:

I. Whether evidence seized from the home of the Defendant under the circumstances
described in the Pre-Trial Chamber’s opinion must be excluded under Article 69(7)
of the ICC Statute.
II. Whether the facts described in the Pre-Trial Chamber’s decision were of the
“character, gravity and scale” to “constitute a manifest violation of the Charter of
the United Nations” as required for the prosecution of the crime of Aggression
under Article 8bis of the ICC Statute.
III. Whether a lawyer who on commission provides the government one-sided legal
advice calculated to justify an armed attack on another State can be prosecuted for
aiding and abetting the Crime of Aggression under Article 25(3)(c) of the ICC
Statute.

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MEMORANDUM for STATE OF ASTIPUR

SUMMARY OF ARGUMENTS

I. THE EVIDENCE SEIZED FROM DR. DANI TARGARIAN’S HOME IS

NOT ADMISSIBLE IN ACCORDANCE WITH ARTICLE 69(7)

The aforementioned evidence was collected in a manner which violated all recognised
human rights of the defendant and are in direct contravention of the right to fair trial as
recognised by the Rome statute, and admission of such evidence would damage the
integrity of the proceedings.

II. ASTIPUR’S AIRSTRIKES BY VIRTUE OF THEIR ‘CHARACTER,

GRAVITY, AND SCALE’ DO NOT CONSTITUTE A MANIFEST
VIOLATION OF THE UN CHARTER SO AS TO BE CHARGED FOR
THE CRIME OF AGGRESSION

The airstrikes conducted by Astipur do not amount to aggression as they were legitimate
intervention upon humanitarian grounds conducted to stop any further assault on Bravosi
civilians by the State, and thus, are not a manifest violation of the UN Charter.

III. THE DEFENDANT WHO PROVIDED THE ASTIPUR GOVERNMENT

WITH LEGAL COUNSEL JUSTIFYING THE AIRSTRIKES ON
BRAVSO CANNOT BE PROSECUTED FOR AIDING AND ABETTING
THE ALLEGED CRIME OF AGGRESSION UNDER ARTICLE 25(3)(c)

Professor Dani Targarian acted as an external legal advisor to the Cabinet and is not in a
position of leadership to satisfy Article 25 (3bis) and neither did she sufficiently
contribute nor possess the requisite mental state to be liable for aiding and abetting the
alleged crime of aggression.

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MEMORANDUM for STATE OF ASTIPUR

WRITTEN SUBMISSIONS

THE EVIDENCE SEIZED FROM DR. DANI TARGARIAN’S HOME IS NOT

ADMISSIBLE IN ACCORDANCE WITH ARTICLE 69(7)

10. Astipur submits that Article 69(7) of the Rome Statute provides a two forked test for
excluding any evidence collected regarding a case:

a. The process through which such evidence was collected violates the provisions
of the Rome Statute and internationally recognized human rights1, and.
b. Such violation casts substantial doubts upon the reliability of evidence and
raises questions of regarding the admissibility of the evidence which can
seriously damage the integrity of the proceedings2.

11. Astipur submits that the memoranda forwarded by the defendant and the correspondence
must be excluded as the seizure violated Professor Targarian’s internationally recognised
right to privacy, and the procedure through which the impugned evidence was collected
had no basis in law.

12. Astipur argues that is an internationally recognized human right3, with the Court having
accepted that same within the meaning of Article 69(7)4. It is submitted that interference
into a person’s correspondence has been recognised to violate the right to privacy and
life of people5.
13. Any interference into privacy for a legitimate aim must be proportionate to such aim and
in accordance with the law6. In the absence of municipal legislation to authorize the
impugned search and seizure of Professor Targarian’s home, the search conducted
without a warrant was neither proportionate nor carried out with a legitimate aim.

14. The interpretation that there exists tension between article 69(8), which bars the Court
from adjudicating matters of national law,7 and article 69(7), which imports the

1
Rome Statute, Art. 69(7)(a)
2
Rome Statute, Art. 69(7)(b)
3
ICCPR Art 17, ECHR Art 8
4
Bemba et al (Appeal), [284], fn 647
5
M.K. v. France (application no. 19522/09), ECtHR
6
Bemba et al., [285], [331]-[332]; ECHR, art 8.2., See als, Lubanga (Confirmation), [62]-[63]
7
Ibid

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MEMORANDUM for STATE OF ASTIPUR

international law requirement that the interference with privacy be ‘in accordance with
law’ has been confirmed by drafting history of article 69(8)8. However, the Appeals
Chamber in Bemba et al. (Appeal) has observed that article 69(8) does not preclude the
Chamber from taking into account non-compliance with national law when non-
compliance has been established in the factual background.

15. Astipur submits that Article 69(5) of the Rome Statute requires that the Court ‘respect
and observe privileges on confidentiality as provided in the Rules of Procedure and
Evidence’. In this regard, it is submitted that the seizure through which the impugned
evidence was collected amounts to a violation of the Rome Statute as Rule 73(1) protects
the privileged communication between a client and their legal counsel unless the client
voluntarily consents to disclose the information. It is a matter of procedure that the
Chamber must immediately order the Prosecution to cease dealing with any evidence
subject to privilege under Rule 73(1)9.

ASTIPUR’S AIRSTRIKES BY VIRTUE OF THEIR ‘CHARACTER, GRAVITY,

AND SCALE’ DO NOT CONSTITUTE A MANIFEST VIOLATION OF THE UN
CHARTER SO AS TO BE CHARGED FOR THE CRIME OF AGGRESSION

16. Astipur submits that the Pre-trial Chamber erred in holding that the airstrikes constituted
a crime of aggression.

17. Astipur submits that genuine humanitarian intervention does not violate the UN Charter
because it aligns with the context, object, and purpose of the UN Charter, as it only
reaffirms the commitment in the Preamble to uphold human rights and life.

18. Humanitarian interventions undertaken genuinely cannot be said to violate Article 2(7) as
they protect human rights and life and prevent commission of crimes against humanity.
The serious human rights violations committed by Bravos cannot be said to fall under
domestic jurisdiction as the UNSC had convened an emergency meeting to prevent
further loss of life in the State, as use of chemical bombs against civilian populations

8
Draft Statute, 110; Triffterer and Ambos (2016), 1722
9
Mbarushimana (Transcripts), 4.

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MEMORANDUM for STATE OF ASTIPUR

constitutes a matter of grave international concern. It is also submitted that the impugned
interventions did not attempt to affect any change in the territorial integrity of the State,
nor did the airstrikes attempt to violate the political independence of Bravos as required
for Article 2(4).

19. In this regard, Astipur submits that Articles 2(4) and 2(7) of the UN Charter are not
violated by the airstrikes as they constitute genuine humanitarian intervention

20. Alternatively, Astipur submits that there is no violation of the UN Charter as customary
international law has recognised the right to humanitarian intervention, particularly
where chemical weapons are used due to:
a. Sufficient state practice; and
b. Opinio juris.

59. CIL arises when there is a sufficiently general and uniform practice accepted as Formatted: Indent: Left: 1 cm, No bullets or
numbering
law10. While State practice and opinio juris are to be separately assessed; they can arise
from the same facts and occur simultaneously.11 There is no single threshold as the
overall context, nature of the rule and the circumstances should be considered.12
Contrary practices are not necessarily fatal.13 Further, CIL can form in a short period of
time, even instantaneously if the state conduct is extensive and ‘virtually uniform’.14

21. Astipur submits that post-1945, there has been general and uniform state practice of
genuine humanitarian intervention. In 1999, when the UNSC was paralysed by a veto,
NATO intervened in Kosovo to stop ethnic cleansing15. The UK and Belgium relied
upon a right to humanitarian intervention to justify their actions16. While NATO and the
US deliberately refrained from offering a formal legal justification, they relied upon
policy and humanitarian justifications.

10
Nicaragua Case (Merits), [186]; North Sea Continental Shelf, [77].
11 ILC 73rd session, 127.

12 Ibid 126.

13 ILC 73rd session, 137; Nicaragua Case (Merits), [196].

14 North Sea Continental Shelf, [74].

15
Kosovo Report (2000), 163.
16
Franchini and Tzanakopoulos (2018), 615.

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MEMORANDUM for STATE OF ASTIPUR

22. Between 1991-2003, the US and UK established ‘safe havens’ and no-fly zones in Iraq
and protected them by force so UN officials could provide humanitarian aid to refugees
and Iraqi civilians. In 2014, the US launched an unauthorised targeted airstrike,
surrounding Mount Sinjar where 40,000 starving Yazidis had fled the intended genocide
committed by ISIL. Despite later justifying its actions on consent and self-defence, the
US’ initial justification was on humanitarian grounds17. This indicates the US’
recognition of humanitarian grounds as valid justification for intervention.

23. Therefore, Astipur submits that unauthorised interventions which are limited in scope
driven by humanitarian concerns are to be considered a uniform and consistent state
practice.

24. Astipur submits that the response of the international community to these events
demonstrate the requisite opinio juris. Most states responding to the actions in Kosovo
supported the airstrikes as lawful, or at least legitimate,18 and the initial humanitarian
justification of the 2014 airstrikes in Sinjar drew no international protest. The 2018
airstrikes in Syria were justified as humanitarian intervention. The UK expressly stated
this to the UNSC, and the US ‘were in complete agreement’ with its allies.

25. Astipur further justified the airstrikes on the right of humanitarian intervention, with
several states supporting the motion in the UNSC.

26. Alternatively, Astipur contends that the airstrikes in response to Bravos deploying
chlorine bombs were necessary and proportionate so as to prevent further deployment of
chemical weapons against Bravosi civilians. The airstrikes were tailored to minimise
casualties and targeted only the facilities where the chlorine bombs were manufactured,
stored, and deployed. It is argued that such action was necessary was the bravos had
established a pattern of conduct which gave rise to escalation of humanitarian distress.

17
Scharf (2019), 604.
18
Ibid

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MEMORANDUM for STATE OF ASTIPUR

THE DEFENDANT WHO PROVIDED THE ASTIPUR GOVERNMENT WITH

LEGAL COUNSEL JUSTIFYING THE AIRSTRIKES ON BRAVOS CANNOT
BE PROSECUTED FOR AIDING AND ABETTING THE ALLEGED CRIME
OF AGGRESSION UNDER ARTICLE 25(3)(c)

27. As argued at [10] to [15], the evidence collected from Professor Targarian’s home should
be inadmissible as the search and seizure violated her right to privacy as well as the Rome
Statute so as to seriously damage the integrity of the Court if submitted. Furthermore,
apart from the ill-gotten evidence whose evidentiary value and credibility is suspect as
argued supra, the remaining body of evidence is scant and insufficient to warrant the
charges of aiding and abetting the crime of aggression against the defendant.

28. Alternatively, while lawyers can prima facie be prosecuted for aiding and abetting the
crime of aggression, Professor Dani Targarian does not fulfil the requirements for
invoking criminal liability under Article 25 (3bis) and Article 25(3)(c).

a. The defendant is not in a position to satisfy the threshold of leadership as required

in Article 25(3bis).

b. She does not satisfy the required material element of aiding and abetting the alleged
crime

c. She does not satisfy the mental element of aiding and abetting the alleged crime.

29. Professor Dani Targarian is merely an academician who is a national of Cilanta, who
certainly does not possess any authority or power in the Astipur, a wholly separate
sovereign entity. Article 25 of the Rome Statute while dealing with individual
responsibility for international crimes, explicitly states so in proviso 3bis that individual
responsibility for the crime of aggression as under Article 8bis shall lie only upon those
individuals who enjoy a position of power and control over the military affairs of a State.

30. Such usage of ‘direct’ and ‘control’ indicate that culpability under Article 25(3bis) arises
only for persons who can decisively manage the political and military actions of state and
includes de facto and de jure leaders. Such interpretation has been confirmed by the

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MEMORANDUM for STATE OF ASTIPUR

travaux préparatoires, and the purpose of the article to target leaders of the State as
principle perpetrators was held as undisputed in the 2009 SWGCA.19

31. Despite the limited precedential value of the Nuremberg and Tokyo tribunals’, they do
offer some guidance on the scope of Article 25(3bis). While the Tribunals’ constitutive
instruments20 did not have the equivalent of Article 25 (3bis), the Tribunals secured
convictions predominantly against the members holding substantial military and political
power21.

32. Article 25(3bis) further restricts the liability for the crime of aggression. Raeder was
convicted not for this “contribution” to the Third Reich, but for his position as the Grand
Admiral of the Nazi navy, which empowered him to direct military operations over the
sea. Article 25(3bis)’s scope is deliberately narrowed by the drafters to exclude those
who could merely influence or shape state action22, as a widened scope increases the risk
of capturing an excessive number of potential perpetrators, particularly in a democratic
state.

33. In the instant case, Professor Targarian is not capable of directing the political and military
affairs of a state which she doesn’t even possess the nationality of. The defendant is a
citizen of Cilanta, who merely engaged in providing two written memorandums to the
President of Astipur to be presented to the Cabinet. It cannot be conclusively stated that
the airstrikes by Astipur occurred solely due to the communique presented by the
defendant, as the Cabinet, while heeding her advice, took a decision after considering
various strategic, security, diplomatic, and human rights factors.

34. Pursuant to [33], the defendant does not possess the material element of aiding and
abetting the alleged crime of aggression as she has not made any substantial contribution
to the whole affair, wherein the interpretation adopted by the Trials Chamber in
Lubanga23 is relevant as the Court held that due to the threshold of ‘gravity’ in
admissibility and in the presence of an intention to exclude ‘infinitesimal’ contributions,
‘substantial’ should be read into the text of Article 25(3)(d).

19
SWGCA Report 2004
20
Nuremberg Charter
21
McDougall (2013), 178.
22
McDougall (2013), 182; Barriga and Kreβ (2012), 20-2
23
Ibid

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MEMORANDUM for STATE OF ASTIPUR

35. Alternatively, Astipur contends that the defendant does not possess the mental element
requisite24 for aiding and abetting the alleged crime, as the Court has held that to invoke
such culpability, the accessory must be aware of the essential elements of the offence and
with the knowledge of the consequences of such an offence occurring in the ordinary
course of events, has acted with the aim of facilitating the commission of said offence.

36. The defendant was in a position both geographically and professionally removed from the
political and military decision-making centres of Astipur, a state she doesn’t belong to.
While she was aware that her document shall be presented to the Cabinet, her
‘contribution’ is restricted to providing bonafide legal advice to the President James
Bannister, and she is certainly not in any position to direct the operations of Astipur’s
government.

37. Therefore, it is argued that Professor Targarian does not satisfy the mental elements for
aiding and abetting the crime of aggression.

24
Bemba et al. (Judgment),

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MEMORANDUM for STATE OF ASTIPUR

CONCLUDING SUBMISSIONS

Wherefore in light of the questions presented, arguments advanced and authorities cited, the
State of Astipur respectfully requests this Chamber adjudge and declare that:

I. Reverse the PTC’s determination that the ICC has jurisdiction over this case.

II. Reverse the PTC’s determination that the evidence seized from Professor
Targarian’s home is admissible.

III. Reverse the PTC determination that the Astipur airstrikes constitute a ‘manifest’
violation of the UN Charter.

IV. Reverse the PTC’s determination that Professor Targarian can be held liable for
aiding and abetting the crime of aggression.

V. Reverse the PTC’s decision to confirm the charges against Professor Targarian.

COUNSEL FOR THE STATE OF ASTIPUR

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