The finding and conclusions of the PTC that the Court may exercise jurisdiction in the present

case is materially affected by an error of law.

The finding of the PTC that the Court may exercise jurisdiction in the present case is materially
affected by an error of law. The legal requirements of Article 12(2)(a) of the Statute have been
subject to speculation. For this reason, the exact scope of the provision shall first be addressed by
establishing that Article 12(2)(a) requires the acts underlying the crime to have occurred on the
territory of a State Party. The Rome Statute, the Elements of Crimes and the drafting history of the
Statute establish a clear distinction between ‘conduct’ and ‘crime’ [A]. Second, this is applied in
the present case by demonstrating that the Court may not exercise jurisdiction because the conduct
of the Defendant occurred in Regale, a non-State Party to the Statute [B] International tribunal
cannot enforce its jurisdiction over non-party states [C]

Article 12(2)(a) requires the acts underlying the crime to have occurred on the territory of a State
Party

Article 12(2)(a) provides that the Court may only exercise jurisdiction if the conduct in
question occurred on the territory of a State Party. This ‘conduct’ requirement means that the
Court will have jurisdiction only if the acts underlying the crime occurred on the territory of a
State Party, and does not include the consequences of such acts1. This is for two reasons. First, the
Statute and the Elements of Crimes draw a distinction between the crime and its components – the
conduct and its consequences – such that reference to ‘conduct’ refers to a certain behaviour
alone and excludes the consequences of such behaviour [i]. Second, the drafting history of the
Rome Statute indicates that ‘conduct’ refers to the act(s) underlying the crime [ii]. Third, the
Myanmar decisions do not apply as the facts and charges are distinguishable from the present
case [iii].

The Rome Statute and Elements of Crimes distinguish between the crime and its components such
that reference to conduct refers to a particular behaviour alone, to the exclusion of its
consequences

1
Curfman (2018).
Article 12(2)(a) must be interpreted in light of the text of the Statute and the Elements of Crimes2
The Statute [a] and the Elements of Crimes [b] indicate that each crime within the jurisdiction of
the Court is comprised of two distinct components, the conduct and the consequences. Therefore,
when the Statute uses the term ‘conduct’, it does not refer to the crime in all its components.
Rather, it refers to conduct in its ordinary meaning alone,3 a certain behaviour, and excludes the
consequences of such behaviour.

The Rome Statute distinguishes between the crime and its components, such that reference to
conduct does not include the consequences of such conduct

Three provisions of the Statute when read together lead to the conclusion that each crime is
composed of the conduct and the consequences of such conduct, and that every use of the
term ‘conduct’ refers to the conduct alone – a certain behavior – to the exclusion of its
consequences.

First, Article 30(2) states that “for the purpose of this article, a person has intent where: (a) in
relation to conduct, that person means to engage in the conduct; (b) in relation to a
consequence, that person means to cause that consequence”. This wording makes it clear that each
crime within the jurisdiction of the Court is comprised of two distinct components, the conduct
and the consequence, and that the perpetrator must intend both4.

Second, Article 31 focuses on the ‘conduct’ of a person in relation to the grounds for excluding
criminal responsibility. This indicates that “the critical time for assessing the existence of a
ground precluding responsibility is the time of criminal conduct, not the time of manifestation of
the criminal result”5, and as such evidences the distinction between a criminal conduct and its
consequences.

Third, Article 20(1) prohibits trying a person with respect to a “conduct which formed the basis of
crimes for which the person has been convicted or acquitted by the Court”. This provision means
that the same actions can form the basis of different crimes, and that a person acquitted or
convicted by the Court could be tried for the same conduct or action on account of other criminal

2
Article 31(2) VCLT. The interpretation of the Rome Statute is governed by the VCLT: Lubanga confirmation [277-
285].
3
Article 31 VCLT
4
Vagias (2014) 91-92.
5
Triffterer Commentary (2008) 872 ; Cassese Commentary (2002) 1028-1029.
charges at the national level6 .As Article 20(1) implies that the same actions could lead to
multiple crimes, it demonstrates that ‘conduct’ is not synonymous to ‘crime’.

A systematic reading of these sections indicates that in the Statute, the term ‘crime’ subsumes the
‘conduct’ and its ‘consequences’. When a section of the Statute relies on the ‘conduct’, it intends
to refer to one of the elements of the crime alone, but not to the crime in all its components.

The Elements of Crimes support the conclusion that the term ‘conduct’ does not take into
account the consequences of such conduct

The Elements also make it clear that ‘conduct’ and ‘consequence’ are subcomponents of the
overarching notion of ‘crime’. According to the General Introduction, the Elements are meant to
address the “conduct, consequences and circumstances associated with each crime”7. It further
states that “a particular conduct may constitute one or more crimes”.

A reading of Article 12(2)(a) in light of the distinction drawn in the Statute and in the Elements
between the crime and its components, the conduct and the consequences, leads to the conclusion
that ‘conduct’ has a meaning differing from ‘crime’ in that it refers to a particular behaviour alone,
to the exclusion of the consequences of such behaviour.

The drafting history of the Rome Statute indicates that ‘conduct’ refers to the act(s) underlying
the crime

The preparatory work of the Statute8 indicates that the Parties intended the term ‘conduct’ in
Article 12(2)(a) to refer to the act(s) underlying the crime.

6
Triffterer Commentary (2008) 686-687; Cassese Commentary (2002) 723-724.
7
Elements of crimes, General introduction [7].
8
Article 32 VCLT
The Statute in its current version was borne out of multiple negotiations that started in the 1994
Draft Statute. In that first version, draft Article 21(1)(b)(ii), for the purpose of territorial
jurisdiction, referred to the “State on the territory of which the act or omission in question
occurred” and not to the State on the territory of which the crime was committed.14 The 1995
Alternative Draft also established jurisdiction on basis of the occurrence of ‘the act or omission’
on a State Party’s territory9. Throughout the preparatory documents from 1997 to 1998, the same
language is used in the draft provisions relating to the territorial jurisdiction of the Court: it is
triggered when the ‘act or omission’ occurred on a State Party’s territory10. Not a single one
of these documents mention the possibility of referring to the location of the ‘commission of the
crime’ in the future Article 12(2)(a). In the final adopted version of the Statute, the term‘conduct’
replaced the expression ‘act or omission’. The only reason for this last-minute change lies in the
fact that the parties could not come to an agreement on the role of ‘omissions’ in the material
elements of crimes.11

It is also relevant to examine the evolution of the mental element provision. The 1997 and 1998
draft provisions link ‘conduct’ to ‘act or omission’ for the purpose of the intent requirement: “in
relation to conduct, that person means to engage in the act or omission”12 The use of both
expressions in the same sentence implies that they have the same legal meaning for the purpose of
the intent requirement.

All these elements point to the fact that the drafters intended to give the same meaning to
‘conduct’ as that of, to the very least, ‘act’. The change from ‘act or omission’ to ‘conduct’ is only
due to an absence of consensus around the implications of ‘omission’. The possibility of
establishing the territorial jurisdiction of the Court by reference to the place of the commission of
the crime was never raised.

9
Article 21 Alternative to the ILC Draft (1995).
10
Preparatory Committee on the Establishment of an ICC (14 August 1997) Draft Article 21 and Draft Article 25;
Preparatory Committee on the Establishment of an ICC (14 April 1998) 23, Draft Article 7 (option 2) and 26,
further options for Articles 6, 7, 10 and 11, Draft Article 7; Bureau proposal (10 July 1998) Draft Article 7.
11
Vagias (2014) 92; Maillart (2014); Saland (1999) 205

12
Preparatory Committee on the Establishment of an ICC (20 February 1997) Chairman’s Text, Draft Article H;
Preparatory Committee on the Establishment of an ICC (4 February 1998) Draft Article 23(H), 59; Preparatory
Committee on the Establishment of an ICC (1 April 1998) Draft Article 23(H), 9.
For these reasons, the term ‘conduct’ in Article 12(2)(a) must be understood by this Court as
referring to the physical acts underlying the alleged crime. In the present case, that would be
the Defendant would conduct repeated aerial release of bio engineered borers, bollworms, and
beetles on the opposite side of the cascading river. in the territory of Regale, a non-State Party.

In light of the foregoing, this Court must find that the term ‘conduct’ in Article 12(2)(a) must be
defined narrowly to include only the underlying acts taken to effectuate the crime, to the exclusion
of the consequences of such act(s). This is the only correct interpretation of the provision in light
of the distinction drawn by the Statute and the Elements between a crime, a conduct and its
consequences, and in light of the drafting history of the Rome Statute. Accordingly, this Court
must conclude that Article 12(2)(a) requires that the acts underlying the crime occurred on the
territory of a State Party in order to trigger the jurisdiction of the Court.

The Myanmar decisions do not apply as the facts and charges are distinguishable from the present
case

In the Myanmar decisions, the Court ruled that ‘conduct’ and ‘crime’ had the same significance in
Article 12(2)(a)13.

Applying the conclusion reached in Myanmar that ‘conduct’ means ‘crime’ for the purpose of
Article 12(2)(a) beyond inherent transboundary crimes would lead to problematic results. It would
grant jurisdiction to the Court over any situation that has some ramification on the territory of a
State Party, regardless of whether or not the principal actions that effectuated the alleged crime
took place on a State Party’s territory. These risks awarding universal jurisdiction to the Court,
which the States Parties rejected during the negotiations of the Statute14

The Court decide that the facts of the present case are similar to Myanmar, it may nevertheless
depart from its prior decisions because it is not bound to them.

13
Myanmar decision on jurisdiction [64]; Myanmar authorisation decision [43], [48-49]
14
Vagias (2012) 59; Bassiouni (2001) 106; Bassiouni (2012) 659
According to the hierarchy established in Article 21 of the Statute, precedent of the Court has no
compulsory effect15. Accordingly, case law only intervenes as a subsidiary means of
interpretation16, when the Statute and the Elements do not provide satisfactory guidance. As
demonstrated above, the interpretation of ‘conduct’ as ‘act(s) underlying the crime’ directly flows
from the contextual interpretation of the Statute and from its drafting history. Such interpretation
takes precedence in this case over conclusions reached by this Court in another case, facing
different facts and law.

This Chamber is not bound by the Myanmar decisions and must not follow their interpretation,
since the crimes dealt with by this Chamber differ in nature. The Court must keep to the meaning
of ‘conduct’ stemming from the contextual interpretation of Article 12(2)(a)

B. The conduct of the Defendant occurred in Regale, a non-State Party to the Statute

The Defendant’s alleged actions are repeated aerial release of bio engineered borers, bollworms,
and beetles. These are the actions taken to effectuate the alleged crime and correspond to the
‘conduct in question’ in Article 12(2)(a) of the Statute. These actions occurred on the territory of
Regale.

Crimes committed through the use of the bio chemicals do not change the application of Article
12(2)(a). There is always a connecting link to a state’s territory, such as the territory where the
plants are located.

The Defendant has lived in Regale his whole life. The Karaxis Corp is located in Regale. There
are therefore substantial grounds to believe that the Defendant was physically present in Regale.
There is no evidence that her actions would have taken place anywhere else than in Regale.

In light of these elements, this Court must conclude that the conduct of the Defendant occurred on
the territory of Regale. The conditions of Article 12(2)(a) are not met, because Regale is not a
15
Manley (2016) 196; Bitti (2009) 292; Cassese Commentary (2002) 1062.
16
Cassese Commentary (2002) 1062
State Party to the Statute. Therefore, the PTC materially erred in finding that this Court may
exercise jurisdiction in the present case.

[C]

The preamble of the Statute states that the purpose of the ICC is “to act against impunity for the
most serious crimes of concern to the international community as a whole and which is
complementary to national criminal jurisdictions.” However, such power of ending impunity and
preventing such crimes is not unrestricted and must operate under “specific, clear and strict
conditions of procedure, namely conditions relating to jurisdiction,” thereby implying that the
jurisdictional requirement supersedes its objective and purpose.

It is a well-established principle of international law that an international tribunal cannot enforce

its jurisdiction over non-party states. Article 34 of the VCLT is understood as a provision derived
from the principle pacta tertiis nec nocent nec prosunt, which lays down that treaties cannot
create any rights or any obligation over a state that has not consented to such rights and
obligations. Therefore, the Statute cannot impose any rights and obligations over non-party states

Therefore, the power of the ICC to exercise jurisdiction over a state is contingent on the consent of
the state for the same. Bare perusal of certain provisions of the Statute makes it clear that the
jurisdiction of the ICC is not universal and may not be exercised in absence of the state’s
consent. Moreover, interpreting Article 12(2)(a) in a way that would allow the ICC to exercise
jurisdiction over non-party states would mean allowing the ICC to exercise universal jurisdiction,
a proposal that was explicitly rejected during the drafting of Article 12(2)(a) by the committee.
Moreover, the ICC is founded upon a treaty governed by the Statue. The purpose of the treaty is
defeated if the ICC is allowed to exercise jurisdiction over non-party states.

Ambassador Scheffer argues that ICC jurisdiction over the nationals of a nonparty state would
violate the Vienna Convention on the Law of Treaties, which he says "states rather clearly that
treaties cannot bind non-party states. ".

Ambassador Scheffer responded that the assertion that a treaty could provide the basis for
jurisdiction with respect to nationals of states that are not party to the treaty contravened
"fundamental principles of treaty law.

The Court may also consider facts that occurred prior to the time specified in an Article 12(3)-
declaration—for the purpose of securing evidence or uncovering acts of a continuing nature—
provided that these facts are linked to events that occurred after that time (Carsten Stahn, p. 429–
31). In our present case, on 15th January 2021 the Golden Lowland gained Independency and
entered into a merger Agreement, Joining the State of Regale on 15th May 2021 which implies that
the ICC do not have the jurisdiction over Golden Lowland.

D. Conclusion

For these reasons, the Court may not exercise jurisdiction in the present case. Under Article 12(2)
(a), the Court may only exercise jurisdiction when the act(s) underlying the crime occurred on the
territory of a State Party. The conclusion reached in Myanmar cannot be applied in the present
case. The actions of the Defendant taken to effectuate the crime occurred on the territory of
Regale, a non-State Party. Therefore, the Court must reverse the finding of the PTC that the Court
may exercise jurisdiction as it is materially affected by an error of law.
.
.