MEMORANDUM for PROSECUTOR

MULTI MOOT COMPETITION

MAY 2022

COUNSEL FOR THE PROSECUTOR

MK Manaswini: 131902049
Sarnitha B: 131902052
Bharathi Surendran: 131801115

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MEMORANDUM for PROSECUTOR

Original: English Date:

THE APPEALS CHAMBER

SITUATION RELATING TO THE CRIME OF AGGRESSION AGAINST BRAVOS

THE PROSECUTOR’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 Prosecutor

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MEMORANDUM for PROSECUTOR

TABLE OF CONTENTS

Sr. No. Particulars Page No.

1. List of abbreviations 4

2. Index of authorities 6

3. Statement of facts 9

4. Statement of issues 12

5. Summary of arguments 13

6. 15
Written submissions

7. Concluding submissions 22

LIST OF ABBREVIATIONS

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S.NO. ABBREVIATION FULL FORM

1. Hon’ble Honorable

2. ECHR European Convention on

Human Rights

3. UNSC United Nation Security

Council

4. ICCPR International Covenant on

Civil and Political Rights

5. PTC Pre Trial Chamber

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6. OTP Office of the Prosecutor

7. CIL Customary International

Law

8. i.e. That is

9. Mr Mister

10. Ms Miss

11. Ors Others

12. AC Appeal Cases

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13. V./Vs. Versus

INDEX OF AUTHORITIES

STATUES REFERRED

S.No PARTICULARS

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1. European Convention on Human Rights

2. International Covenant on Civil and Political Rights

3. Universal Declaration of Human Rights

4. Rome Statute, 1998

5. ICC Rules

6. Kampala Amendment

INDEX OF AUTHORITIES

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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/

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

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

CASE REFERRED

S.No PARTICULARS

1. Schenk v. Switzerland

2. Prosecutor v. Thomas Lubanga Dyilo

3. BNicaragua v. United States

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4. Bemba et al

5. Mbarushimana

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

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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’.

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.

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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 authorized 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 Defense is appealing against the PTC’s confirmation of charges.

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

ISSUES RAISED

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MEMORANDUM for PROSECUTOR

ISSUE 1

Whether evidence seized from the home of the Defendant under the circumstance
described in the Pre-Trial Chamber’s opinion must be excluded under Article 69(7) of the
ICC Statute

ISSUE 2
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

ISSUE 3
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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SUMMARY OF ARGUMENTS

ISSUE 1:- 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

It is humbly submitted to the hon’ble court that the evidence seized from the home of the defendant
under the circumstances described in the pre-trial chamber’s opinion must not be excluded under
Article 69(7) of the ICC Statute as it does not fulfill either condition (a) or (b) of the Article.
Therefore, the evidence collected will be admissible in the Hon’ble court.

ISSUE 2:- 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.

It is humbly submitted before this Honorable court that the facts described in the pre-trial chamber
decision were of the character, gravity and scale to constitute a manifest violation for prosecution
of crime of aggression of the Charter of the United Nations. Astipur’s attack in Bravos must be
considered as a Crime of Aggression under Article 8bis of the ICCSt. Because, it lacks the legal
justifications required for the authorization of the use of force, and the facts do not fulfill the
elements. Second, it meets all of the elements under Article 8bis’ definition, especially the fact
that the strikes can be qualified as a manifest violation of the UN Charter.

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ISSUE 3 - 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

Lawyers have been held liable for the counsel and advice provided by them in the Nuremberg and
Tokyo Tribunals and have been prosecuted earlier in the ICC for offences committed by them
while discharging their duties as counsel. Their profession, thus, does not shield them from
criminal culpability. In the instant case, Professor Dani Targarian, the defendant, has acted
willfully and deliberately by providing a biased and one-sided memorandum upon the request of
the President of Astipur, James Bannister, knowing very well that the law on humanitarian
intervention is at best ambiguous. She acted so when knowing that her memorandum would be
used to convince the Cabinet that the impugned airstrikes do not constitute a crime under
international law. As the defendant knew the consequences of the communique provided by her in
the ordinary course of events, and still decided to amend the memorandum, she possesses the
requite material and mental elements for invoking criminal liability.

WRITTEN SUBMISSIONS

WHETHER EVIDENCE SEIZED FROM THE HOME OF THE DEFENDANT

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MEMORANDUM for PROSECUTOR

UNDER THE CIRCUMSTANCES DESCRIBED IN THE PRE-TRIAL CHAMBER’S

OPINION MUST BE EXCLUDED UNDER ARTICLE 69(7) OF THE ICC STATUTE

It is humbly submitted to the hon’ble court that the evidence seized from the home of the defendant
under the circumstances described in the pre-trial chamber’s opinion must not be excluded under
Article 69(7)1 of the ICC Statute as it does not fulfill either condition (a) or (b) of the Article.

Therefore, the evidence collected will be admissible in the Hon’ble court.

Article 69(7) of the statute states that evidence obtained by means of a violation of this Statute or
internationally recognized human rights shall not be admissible if: (a) The violation casts
substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be
antithetical to and would seriously damage the integrity of the proceedings.

Fulfillment of either of the conditions from Article 69(7) of the statute is mandatory, if not, there
will be no primary doubts with regards to the evidence collected under such circumstances. Then,
either one of the two subparagraphs’ provisions must be met, meaning that the evidence must either
be found unreliable or its admission must seriously damage the integrity of the proceedings or be
antithetical.

As none of the conditions stated under Article 69(7) is fulfilled there is no reason to doubt the
reliability of the evidence collected and because admitting the evidence would not damage the
proceedings in any form.

While Article 6 of the ECHR guarantees the right to a fair trial, it does not lay down any rules on
the admissibility of evidence as such, which is therefore primarily a matter for regulation under
national law.

1
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In the case of Schenk v. Switzerland2, it was stated that the Court cannot exclude as a matter of
principle and in the abstract that unlawfully obtained evidence of the present kind may be
admissible. It has only to ascertain whether Mr. Schenk's trial as a whole was fair.

The first stage in excluding evidence under Article 69(7) is to prove that the ICC Statute or
internationally recognised human rights have been violated. The defense claims that the search and
seizure breached the accused's right to privacy in this case. It is no longer a point of contention
whether this right is universally recognised, as the ICC has already determined. The prosecution
maintains that Article 69(7) cannot be invoked after the search and seizure was just a violation of
national processes.

According to the linguistic meaning of this clause, there is no absolute excluding rule in ICC
criminal proceedings. To put it another way, the ICC follows a relative exclusionary rule, which
means that evidence obtained through a violation of human rights or a violation of the Rome
Statute can be excluded from criminal proceedings if the violation casts substantial doubt on the
evidence's reliability or if admitting the records would be contrary to and seriously harm the
proceedings' integrity. As a result, this provision empowers the ICC to consider whether evidence
gathered in violation of human rights or the Rome Statute meets this dual test on a case-by-case
basis.

In the case of Prosecutor v. Thomas Lubanga Dyilo3, the defendant has asked for exclusion of
material evidence claiming that the search of the apartment in his state was unconstitutional.
Although there has been a violation of the right to privacy, the evidence was admissible, because,

2
Schenk v. Switzerland
3
Prosecutor v. Thomas Lubanga Dyilo

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MEMORANDUM for PROSECUTOR

according to the ICC, violation did not affect the reliability of the evidence, nor damaged the
integrity of proceedings.

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.

It is humbly submitted before this Honorable court that the facts described in the pre-trial chamber
decision were of the character, gravity and scale to constitute a manifest violation for prosecution
of crime of aggression of the Charter of the United Nations. The airstrikes constituted by Astipur
constituted crime of aggression under Article 8bis.
1. The definition of aggression 4 , states that: For the purpose of this Statute, “crime of
aggression” means the planning, preparation, initiation or execution, by a person in a
position effectively to exercise control over or to direct the political or military action of a
State, of an act of aggression which, by its character, gravity and scale, constitutes a
manifest violation of the Charter of the United Nations. Thus, to be considered a crime of
aggression, an act must fulfill three elements: a) there must be a planning, preparation,
initiation or execution of an act of aggression; b) it must have been conducted by a person
in a position to exercise control over the military action; and c) the act of aggression must
be a manifest violation of the UN Charter, which is assessed by its character, gravity and
scale. This is to be noted there that all the three elements are essentially present in this case.
2. Regarding the first element, the Government of Astipur had sent to the UN Security
Council the communique in which he stated that, “the Cabinet of Astipur unanimously

4
As per Article 8bis (1) (Crime of Aggression) of the Rome Statute of the International Criminal Court

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MEMORANDUM for PROSECUTOR

voted to launch airstrikes against Bravos’ facilities that manufactured the chlorine gas
weapons.5 Thus, This clearly shows that there was some planning and preparation for the
bombardment and the execution part is proven by the fact that the airstrikes occurred with
effective control of the Cabinet over the military actions of Astipur headed by the the
President of Astipur, James Bannister.

3. Regarding the act of aggression, it can be quoted and highlighted under Paragraph 26 which
states that:
(a) ‘Act of aggression’ means the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations. Any of the following acts… qualify
as an act of aggression...
(b) Bombardment by the armed forces of a State against the territory of another State or the
use of any weapons by a State against the territory of another State. Thus, the act of
Bombardment is clear enough to prove that the elements are fulfilled to constitute a crime
of aggression.
4. The commission of an act of aggression is not considered as a crime unless by being a
“manifest” violation of the UN Charter, characterized by the Act’s character, gravity and
scale.7
(a) In the aspect of Gravity and scale, They are met by the severity of the strikes which have
killed approximately one hundred people. This is compared with the UNSC’s resolution
which found acts like an attack against another nation's capital which used small arms and
bombs to kill twelve; two targeted assassinations and collateral loss of life; and violence
against diplomatic missions, were sufficiently grave to trigger a resolution condemning the

5
Facts (Para 11)
6
As per Article 8bis (2) (Crime of Aggression) of the Rome Statute of the International Criminal Court 7
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States responsible for aggression 7. Further, it can be compared with the ICJ’s judgment in
the Nicaragua case9, where Astipur’s attack is regarded as a grave and illegal use of force.
(b) In the aspect of Character, the act of Astipur with its airstrike attack is of sufficient
character to be a violation of the Charter. Further, there is no mention of Humanitarian
intervention in the facts, rather this would be an act with selfish motives ie. reduction in
the price of its cobalt exports, which caused unemployment to rise in Astipur and tax
revenue to plummet.10

5. Secondly, The bombardment by Astipur cannot be considered a lawful humanitarian

intervention as it does not fit the exceptions predicted in the UN Charter prohibiting the
use of force, so the act is considered Void-ab-initio. The UN Charter, explicitly prohibits
the use of force of States against the territorial integrity of any other State, being the only
two exceptions to this rule the authorization by the UNSC or self-defense8. Neither of these
conditions are met in the case. Thus, any use of force from Astipur would essentially be a
violation of Article 2(4) of the UN Charter. Therefore, once the alleged “right to
humanitarian intervention” is not one of the predicted exceptions to the use of force, it
cannot be invoked to justify Astipur’s attack.
6. Further, it can be noted that the President of Astipur, James Bannister, contracted Professor
Dani Targarian’s opinion on the legality of using force only after two days from the first
attack, which indicates that the plan to bombard Bravos was intended from the start12.
Finally, there is no guarantee that destroying a few locations related to chemical weapons
would prevent Bravos from suppressing the riots in other ways. Thus, Astipur’s actions not

7
Michelle Benson, Colin Tucker, The Importance of UN Security Council Resolutions in Peacekeeping Operations,
Volume: 66 issue: 3, page(s): 473-
503,https://doi.org/10.1177/00220027211044205 9 https://www.icj-
cij.org/public/files/case-related/70/6505.pdf 10 Facts (Para 4)
8
UN Charter, Article 2(4); Article 39; Article 51 12
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only unjustifiably violated Bravos’ territorial integrity, but were doubtfully successful in
its alleged purpose.
7. Therefore, it is humbly submitted that Astipur’s attack in Bravos must be considered as a
Crime of Aggression under Article 8bis of the ICCSt. Because, it lacks the legal
justifications required for the authorization of the use of force, and the facts do not fulfill
the elements. Second, it meets all of the elements under Article 8bis’ definition, especially
the fact that the strikes can be qualified as a manifest violation of the UN Charter.

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

1. The Defense’s argument that lawyers who provide legal advice cannot be prosecuted is
unsustainable as rightfully stated by the PTC, wherein it was observed that lawyers have been

subject to criminal liability for facilitating an international crime since the Nuremberg Trials9. Von
ribbentrop was held criminally liable after he prepared the Foreign Office memorandum since the
same was used to justify Nazi aggression in Norway, Denmark, and the Low Countries10. In Bemba
et al, the ICC itself prosecuted lawyers for violating the Rome Statute – for both commission of
the actual crime and for aiding and abetting them. Thus, the argument holds no water as there is
precedential basis to convict lawyers for international crimes.

2. The ICC has not shied away from prosecuting actions that do not seem prima facie illegal
but have actually led to the commission of international crime, and lawyers have been held liable

9
Case 2019, para. 18, item c.
10
Major War Criminals Trial, p. 286.

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in the past for facilitating crime11. Conversely, lawyers must be held liable when the motive of a
client is to avoid the consequences of a crime that may be committed in the future12.

3. In the instant case, Professor Dani Targarian was aware that the law on humanitarian
intervention is unclear on the legality of such an action, as apparent from the first memorandum1314
provided by her to President James Bannister. However, upon his request for a more “convincing”
memorandum, she proceeded to provide a one-sided and biased legal opinion that failed to take
into account the various complex issues arising from humanitarian intervention that takes place
without express consensus from the UNSC. By providing such a memorandum, she has violated
the internationally recognized rules and guidelines that prohibit a lawyer from providing any such
advise to a client that may lead the latter to commit a criminal or fraudulent act 18.

4. The interpretation of mens rea, as understood by the court previously with reference to
culpability for abetment and aiding under Article 25(3) of the Rome Statute, is that mens rea as
envisioned by Article 30 must be accessed in what concerns the commission of the said crime15,
i.e., for a person to be held libale for aiding and abetting, they must be aware that the actual

11
ICTR-99-52. The accused responded for incitement on the commission of genocide through his radio channel as;
VanAnraat (09/751003-04) was accused for the transportation of chemical substances, later used for the production
of weapons in Saddam Hussein’s government; Mbarushimana (ICC-01/04-01/10-465-Red, para. 8) was prosecuted
for conducting a propaganda policy that aimed to blame other armed parties for the crimes committed by an armed
group; Gbagbo (ICC-02/11-01/15) was accused for recruitment, training and sustainment of militias that would
eventually commit crimes.

12
NEWMAN(1994), p. 287
13
Appendix 2, facts
14
International Bar Association Code of Ethics, rule 10; American Bar Association Rules of Professional Conduct,
rule 1.4(b); Federation of Law Societies of Canada, Model Code of Professional Conduct, rule 3.2(7); Singapore
Legal Professional Conduct, rule 5(1)(c); New Zealand, Lawyers Conduct and Client Care, rule 2.4; Brazilian Bar
Association, Code of Ethics and Discipline, Article 8.
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perpetrator’s offence shall be committed in the ordinary course of events, and had still acted so in
such a manner16.

5. It is submitted that in the instant case, the defendant possesses the requisite mens rea
asunder Article 30, and that as represented by the facts, there exists a causal relationship between
the memorandum forwarded by her and the legal basis provided by Astipur regarding its attack on
Bravos. Moreover, Astipur has expressly relied upon the counsel of Professor Dani Targarian in
the communique to the UNSC to justify the airstrikes.

6. It is thus submitted that the actions of Professor Targarian hold her culpable for aiding and
abetting the crime of aggression committed by Astipur as she has acted deliberately in a manner
that facilitated the commission of the impugned crime of aggression, and as demonstrated
previously from the facts concerned, she was aware of the circumstances which led to President
James Bannister of Astipur to contact her, and yet proceeded to willfully provide a biased
memorandum that was later used as a justification for Astipur’s attack on Bravos.

16
ICC-01/05-01/13), para 98.

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CONCLUDING SUBMISSIONS

Wherefore in the light of issues raised, arguments advanced and authorities cited, the Counsel for
the Prosecution respectfully requests this Court to uphold the decision of the PTC and adjudge and
declare that:

I. The evidence seized from the Defendant’s home under the circumstances described must
not be excluded under Article 69(7) of the Statute.
II. Astipur’s airstrikes were of the “character, gravity and scale” to constitute a manifest
violation of the U.N. Charter as required under Article 8bis of the Statute.
III. The Defendant can be prosecuted for aiding and abetting the Crime of Aggression under
25(3)(c) of the Statute

Or any other decision that the court may deem fit in the conscience of justice, equality and good
conscience.

On Behalf of Prosecutor

COUNSEL FOR THE PROSECUTOR

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