MEMORIAL for DEFENSE

Legal Luminaries

No.IBC-2023-001

Pre-Trial Chamber II

Bahria International Moot Court Competition, 2023

In the case of the Prosecutor v. Lieutenant Maham Xander

Case before the International Criminal Court (ICC):

THE CASE CONCERNING “ACCESS TO FORGOTTEN OASIS”

MEMORIAL FOR DEFENSE

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 MEMORIAL for DEFENSE

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ………………………………………………………………..3

INDEX OF AUTHORITIES……………………………………………………………….…4-5

STATEMENT OF JURISDICTION…………………………………………………………... 6

STATEMENT OF FACTS……………………………………………………………………....7

QUESTIONS PRESENTED…………………………………………………………………… 8

SUMMARY OF PLEADINGS……………………………………………………………....… 9

PLEADINGS………………………………………………………………………………...….10

 Question I………………………………………………………..………………………10-12
 Question II……………………………………………………………….……………....13-16
 Question III………………………………………………………………………...……17-19

PRAYER FOR RELIEF……………………………………………………………………….20

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TABLE OF ABBREVIATIONS

Art. Article
AC Appeals Chamber
Ch. Chamber
ICC International Criminal Court
ICTY International Criminal Tribunal for former Yugoslavia
ICRC International Committee of the Red Cross
OTP Office of the Prosecutor
OAT Oasis Access Treaty
PTC Pre Trial Chamber
Para. Paragraph
RS Rome Statute
TC Trial Chamber
U/A Under Article
& And

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INDEX OF AUTHORITIES

Judgments

1. The Prosecutor v. Ahmad Muhammad Harun (Ahmad Harun) and Ali Muhammad Ali Abd-
al-Rahman (Ali Khusyab) (Decision on the Prosecution Application under Article 58(7) of
the Statute) ICC-02/05-01/07 PTC I (27 April 2007)………………………………………..10
2. The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (judgment) ICC-
01/12-01/18 OA AC (19 February 2020)…………………………………………………….13
3. Bangladesh/Myanmar Authorisation (Decision Pursuant to Article 15 of the Rome Statute on
the Authorisation of an Investigation into the Situation in the People’s Republic of
Bangladesh/Republic of the Union of Myanmar) ICC-01/19 PTC III (14 November 2019)
…………………………………………………………………………………………….13,16
4. The Prosecutor v. Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda) ICC-01/04-02/06
PTC II (9 June 2014)…………………………………………………………………………17
5. Prosecutor v. Callixte Mbarushimana (Decision on the Prosecutor's Application for a
Warrant of Arrest against Callixte Mbarushimana) ICC-01/04-01/10 PTC I (28 September
2010) ………………………………………………………………………………………...19
6. The Prosecutor v. Callixte Mbarushimana (Decision on Confirmation of Charges) ICC-
01/04-01/10 PTC I (16 December 2011)………………………………………………….…19
7. The Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Prosecutor’s Application for a
Warrant of Arrest against Jean‐Pierre Bemba Gombo) ICC‐01/05‐01/08 PTC III
(10 June 2008) …………………………………………………………………………….…10
8. The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques
Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido (Decision) ICC-01/05-01/13
PTC II (11 November 2014)....................................................................................................17
9. Prosecutor v. Kordić and Čerkez, (judgment) I.C.T.Y.-IT-95-14/2-A (A.C.) (17 December
2004) ………………………………………………………………………………………...13

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10. Kenya Authorisation (Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09
PTC II (31 March 2010)……………………………………………………………....13,14,15
11. The Prosecutor v. Mahmoud Mustafa Busayf al-Werfalli (Second warrant of arrest) ICC-
01/11-01/17 PTC I (4 July 2018)…………………………………………………………….15
12. The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga
Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant
to article 19 (2) (a) of the Statute of 3 October 2006) ICC-01/04-01/06 (OA4) Appeal
Chambers (14 December 2006)……………………………………………………..……11,12
13. The Prosecutor v. Thomas Lubanga Dyilo (Decision on the confirmation of charges) ICC-
01/04-01/06 PTC I (29 January 2007)………………………………………………………19

Statutes and other Documents

1. Elements of Crimes, ICC-PIDS-LT-03-002/11_Eng (ICC 2011) [EoC]
2. ICC Rome Statute
3. Prosecutor’s Policy Paper

4. Rules of Procedure and Evidence, ICC-PIOS-LT-03-004/19_Eng (ICC 2019) [RPE]

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STATEMENT OF JURISDICTION

The Defense humbly submits that the International Criminal Court lacks jurisdiction in the
present case pursuant to Art.5 Crimes within the jurisdiction of the Court, Art.11 Jurisdiction
ratione temporis, Art.12 Pre-Conditions to the exercise of jurisdiction, Art.13(c) Exercise of the
Jurisdiction pursuant to Art.61(7) of the ICC Statute, i.e., Confirmation of Charges.

On the basis of foregoing, the Defense requests this Court not to exercise its jurisdiction since
the case does not fall in its purview.

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STATEMENT OF FACTS

Procedural History
1. In August 2020, the ICC's Office of the Prosecutor initiated a Preliminary Examination
into alleged crimes in the Republic of Hans and Nimah. On January 15, 2021, Pre-Trial
Chamber II authorized a full investigation.
2. Lieutenant Xander was transferred to the Court and appeared before Pre-Trial Chamber II
on 27 July 2023. The Defense challenged the ICC's jurisdiction and admissibility.
Background
3. Lieutenant Maham Xander is a citizen of the Republic of Hans, a non-state party to the
ICC. Hans, landlocked with predominantly Zephyrist people, contrasts with Nimah, a
secular maritime nation. Both are part of The Syrenica Region. Nimah has been a state
party to the Rome Statute since 2016.
4. Zephyrists believe the 'Forgotten Oasis' waterfall, formed after Nimah's earthquakes in
the 18th-century, a fulfilment of their divine prophecy. In 1850, conflicts triggered
known as the 'Sacred Oasis Wars', leading to UN intervention.
Oasis Access Treaty
5. In 1961, the 'Oasis Access Treaty' allowed limited Zephyrist visits to the waterfall, yet
Nimahans displayed hostility. In 2010, liberal Hans’ leadership sought respect for
Zephyrist’s religious rituals, but Nimah's cold response triggered protests. After that, PM
William Saddy appointed Lieutenant Xander, a Zephyrist, to secure access.
6. On 21 December 2018, following PM Saddy's statement, Lieutenant Xander initiated an
airdropped strike, damaging Nimah's border. Nimah responded by completely halting any
access to the waterfall for the people of Hans.
The Aerial Attacks
7. On September 21, 2019, Butterfly Mines targeted Nimah's forces, causing casualties and
ongoing injuries. Nimah's Premier condemned Hans, and tensions further rose after a
second mine attack near a humanitarian camp, resulting in ICRC personnel casualties.
8. Despite international pressure, Hans has not investigated or prosecuted crimes. The
conflict underscores the complex interplay between religious beliefs and geopolitical
tensions in the Syrenica Region.

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QUESTIONS PRESENTED

[I]
Whether there are reasonable grounds to believe that the case against Lieutenant Maham Xander
concerning the war crime of “Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as long as they are entitled to the protection
given to civilians or civilian objects under the international law of armed conflict” falls within
the jurisdiction of the Court pursuant to article 19 of the Rome Statute.

[II]

Whether there are reasonable grounds to believe the case against Lieutenant MahamXander
concerning the war crime of “Intentionally directing attacks against personnel,installations,
material, units or vehicles involved in a humanitarian assistance or peacekeepingmission in
accordance with the Charter of the United Nations, as long as they are entitled tothe protection
given to civilians or civilian objects under the international law of armedconflict” is admissible
pursuant to article 17(1)(d) of the Rome Statute.

[III]

Whether there are reasonable grounds to believe that Lieutenant Maham Xander iscriminally
responsible for the war crime of “Intentionally directing attacks against personnel,installations,
material, units or vehicles involved in a humanitarian assistance or peacekeepingmission in
accordance with the Charter of the United Nations, as long as they are entitled tothe protection
given to civilians or civilian objects under the international law of armedconflict” under article
25(3)(b) and/or article 25(3)(d) of the Rome Statute.

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SUMMARY OF PLEADINGS

(I)

The Defense argues that the International Criminal Court (ICC) lacks jurisdiction in the case of
Lt. Maham Xander for following reasons; Firstly, ICC jurisdiction over a national of a non-state
party requires either explicit acceptance or a UN Security Council referral, neither of which
occurred in this case. Secondly, the alleged crime does not qualify as a war crime under Article
8, as it does not meet the necessary elements, given that the target of the attack was military, not
humanitarian. Thirdly, the case of Lt. Maham does not meet the personal jurisdiction
requirements outlined in Article 25(3)(b) and (d). Finally, the case lacks "sufficient gravity"
under Article 17(1)(d), making it non-justiciable and warranting dismissal.

(II)

The case against Lt. Maham Xander is inadmissible under Article 17(1)(d) of the Rome Statute,
as it fails to meet the gravity threshold. The assessment of gravity is based on quantitative and
qualitative elements. Quantitatively, the number of victims, including six ICRC officials killed as
collateral damage, falls below the severity threshold compared to cases in Bangladesh/Myanmar
and Kenya. Qualitatively, the scale, nature, manner of commission, and impact of the alleged
crimes are deemed insufficient, as the attacks targeted military objectives, lacked discriminatory
motives, were not part of a systematic plan, and had limited geographical and temporal spread.
Consequently, the article concludes that the case is inadmissible due to insufficient gravity

(III)

Lieutenant Maham Xander’s case lack criminal responsibility under Article 25(3)(b) as there's no
evidence she directed attacks on humanitarian targets. The speech given by Xander did not
solicit or induce such actions, and the time gap weakens any direct causal link. Furthermore,
under Article 25(3)(d), there was no common purpose among the group to commit the alleged
crime, and Xander's contribution is considered meager, failing to meet the threshold of
significance. In conclusion, Xander is not criminally responsible under both provisions of the
Rome Statute.

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PLEADINGS

Question No.1

As a threshold matter, Article 19(1) requires that the Court satisfy itself that it has jurisdiction in
all cases brought before it.1

On behalf of Lt. Maham Xander, the Defense respectfully submits that this court lacks
jurisdiction due to the following reasons;

(i) The jurisdiction of ICC cannot be exercised on a national of non-state party in

absence of UNSC referral or declaration under Article 12(3) of the Statute.
(ii) The alleged crime does not qualify as war crime under Article 8, depriving this Court
of jurisdiction ratione materiae.
(iii) The requisite elements of Article 25(3)(b) &(d) are not met, depriving this Court of
personal jurisdiction.
(iv) The case lacks "sufficient gravity" as required by Article 17(1)(d), leaving it non-
justiciable under Article 17(1)(d).

i. The jurisdiction of ICC cannot be exercised on a national of non-state party in

absence of UNSC referral or declaration under 12(3) of the Statute.

For the purpose of exercising the jurisdiction by ICC over national of a non-state party, the
Rome Statute has recognized only two situations;

a. If the non-Party State explicitly accepts the Court’s exercise of jurisdiction 2 or

b. The situation is referred to the Prosecutor by the United Nations Security Council
pursuant to Article 13(b).3

1
Rome Statute, Article 19(1)
2
The Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Prosecutor’s Application for a
Warrant of Arrest against Jean‐Pierre Bemba Gombo) ICC‐01/05‐01/08 PTC III (10 June 2008) para. 12
3
The Prosecutor v. Ahmad Muhammad Harun (Ahmad Harun) and Ali Muhammad Ali Abd-al-Rahman (Ali
Khusyab) (Decision on the Prosecution Application under Article 58(7) of the Statute) ICC-02/05-01/07 PTC I (27
April 2007) para.16

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In the current circumstance, neither of the aforementioned scenarios exists. Lt. Maham is a
citizen of the Hans Republic. The Republic of Hans has not accepted the ICC's exercise of
jurisdiction, and the inquiry was initiated by the Prosecutor proprio motu.

A State which is not a Party to the Rome Statute can accept the Court’s jurisdiction by way of a
declaration lodged with the Registrar.4The facts are absolutely silent on any declaration made by
the Republic of Hans.

The Rome Statute rejects that premise of jurisdiction by requiring the permission of the state of
the perpetrator's nationality or the state whose territory the offense occurred. The wording of
Article 12 is plain enough about the want of acceptance by the non state party. As a result, in
order to avoid exceeding its authority, the Court must strictly adhere to both the language and
spirit of the Statute, as well as the principles of international law. Therefore, the Court lacks
jurisdiction in this case.

ii. The alleged crime does not qualify as war crime under Article 8, depriving this
Court of jurisdiction ratione materiae.

For subject matter jurisdiction to exist the alleged crime must qualify as genocide, crime against
humanity, war crime, or a crime of aggression as defined in Articles 6, 7, and 8 of the Statute. 5

The court lacks subject matter jurisdiction in the current case because the alleged crime does not
qualify as a war crime as it does not satisfy the requisite elements listed in the ICC document of
Elements of Crime for constituting a war crime under article 8(2)(b)(iii) because the target of the
attack was not personnel or vehicles involved in humanitarian assistance, nor did Lt. Maham
intend such personnel or vehicles to be the target of the attack. The facts show that the only
target of the strikes were military targets. 6

4
Article 12(3) RS
5
Rome Statute, Article 5(1); The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas
Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19
(2) (a) of the Statute of 3 October 2006) ICC-01/04-01/06 (OA4) Appeal Chambers (14 December 2006) paras 21-
22.
6
Case para [23][27]

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iii. The requisite elements of Article 25(3)(b) & (d) are not met, depriving this Court of
personal jurisdiction.

Personal jurisdiction is also confined to those who meet the qualifications outlined in Article 25
of the Statute. A person is only legally culpable and punishable for a crime committed within the
Court's jurisdiction if he or she fits one of six conceivable conditions (Articles 25(3)(a) to (f)).
Lt. Maham has been charged in accordance with Article 25(3)(b) and (d).

Article 25 of the Statute requires that certain specific prerequisites be met in order to fall under
the jurisdiction of this Court. It is argued that the case in hand lacks the components required to
establish the defendant's criminal responsibility under Article 25(3)(b) and (d).

iv. The case lacks "sufficient gravity" as required by Article 17(1)(d), leaving it non-
justiciable.

The Statute itself erects certain barriers to the exercise of the jurisdiction of the Court, those set
up by article 17, referable in the first place to complementarity (article 17 (1) (a) to (b) in the
second to ne bis in idem (articles 17 (1) (c), and thirdly to the gravity of the offence (article 17
(1) (d)). The presence of anyone of the aforesaid impediments enumerated in article 17 renders
the case inadmissible and as such non-justiciable. 7

In the present case, the gravity threshold is insufficient, rendering the case inadmissible and, as a
result, unable to be adjudicated on.

Conclusion:

Defense contends that the ICC lacks jurisdiction due to the lack of declaration from the Republic
of Hans and UNSC referral, and that the targeted attacks do not qualify as war crimes.
Furthermore, the personal jurisdiction requirements set forth in Article 25(3)(b) and (d) are not
met, and the case falls short of the "sufficient gravity" level set forth in Article 17(1)(d), leaving
it non-justiciable and prompting dismissal.

7
The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the
Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3
October 2006) ICC-01/04-01/06 (OA4) Appeal Chambers (14 December 2006) para 23.

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QUESTION NO.2

The article 17(1)(d) of the Rome Statute bars the case from admissibility if it is not of sufficient
gravity.

The gravity threshold is assessed on the following two factors:

i. Quantitative Elements (in particular, the number of victims)

ii. Qualitative Elements (including scale, nature, manner of commission, and impact of
crimes).8

The present case neither meets the quantitative nor the qualitative criteria.

i. The Quantitative Standard is not Fulfilled

The quantitative criteria is not met since the number of victims does not exceed the gravity
threshold.

A. Number of Victims

In the case at hand, not a single casualty of civilian has been reported. The attacks were directed
at where the military personnel were stationed, however, they also resulted in the collateral
damage of six lives of ICRC officials9 which happened to be there at that time. Moreover,
collateral civilian losses are not per se unlawful, as long as they are ancillary to the conduct of
the military operations.10

The handful amount of victims does not pass the gravity threshold of the Rome Statute. In
Bangladesh/Myanmar with up to 10,000 deaths, the Court additionally considered 600,000
forced displacements for concluding that the scale is of sufficient gravity. 11In Kenya post
election violence resulted in 1,133 to 1,220 murders, more than 900 acts of documented rapes

8
The Prosecutor v. Al Hassan AG Abdoul Aziz AG Mohamed AG Mahmoud (Judgment) ICC-01/12-01/18OA (19
February 2020) para.92
9
Case para [27]
10
Prosecutor v. Kordić and Čerkez, I.C.T.Y.-IT-95-14/2-A (A.C.) para.52
11
Bangladesh/Myanmar Authorisation (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of
an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar) ICC-
01/19 PTC III (14 November 2019) para [118]

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and sexual violence, displacements of over 350,000 people and 3,561 reported acts of serious
injury were additionally considered.12

ii. The Quanlitative Standard is not Fulfilled

The claimed offenses' scale, character, mode of commission, and impact are insufficient to fulfill
the severity criterion.

a. Scale of Crimes

The scale of crimes may be assessed by the geographical or temporal spread and the extent of the
damage caused by the crimes13 (overlapping with the impact of the crimes).

Geographical or Temporal Spread

The present case does not meet the required geographical and temporal benchmark for
admissibility. In the Kenya authorization decision the Pre-Trial Chamber, in finding the
geographical scale of the crimes, mentioned that the post-election violence ‘affected six of the
eight Kenyan provinces’. Hence, to meet the gravity threshold, the geographical location of the
crimes should be widespread.14 Furthermore, in the concerned case, the attacks were limited to
the western portion of Nimah as shown in Exhibit 2.

The reported attacks' temporal spread and intensity were substantially lower. Over the entire
period, only three attacks occurred, with no civilian casualties. As stated in the Preamble to the
Rome Statute, the Court's authority is limited to the most serious offenses. Thus, based on the
severity and temporal dispersion of the claimed crime, it is possible to determine that the current
case is not of sufficient gravity.

b. Nature of Alleged Crimes

In Prosecutor’s Policy Paper, the nature of the crimes refers to the specific elements of each
offence such as killings, rapes and other crimes involving sexual or gender violence and crimes

12
Kenya Authorisation (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation
into the Situation in the Republic of Kenya) ICC-01/09 PTC II (31 March 2010) paras [190-191]
13
ICC-OTP (2013) para [62]
14
Supra Note 12 paras [190-191]

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committed against children, persecution, or the imposition of conditions of life on a group

calculated to bring about its destruction.15

The nature of the alleged offenses in the concerned instance is not sufficiently terrible because it
does not fall under the offences listed in the paper. Except for the legitimate military goals, no
civilian casualties have occurred. The attacks were carried out on military targets rather than
against people of a certain age group (children). There was no intention of persecuting or causing
hardship to individuals. Considering this sufficiently grave would undermine the intended
function of the gravity threshold as an additional safeguard. 16 Hence, the alleged crimes are not
sufficiently grave in nature.

c. Manner of Commission

Relevant factors to determine the manner of commission are inter alia:

a) The existence of discriminatory motives

b) The use of particularly cruel and brutal means
c) Whether the crimes were systematic or were been a part of plan or policy. 17

The attacks were conducted on lawful military targets without any prejudice on racial, ethnic or
political grounds. Moreover, the attacks were directed only towards military objectives by using
unmanned aerial vehicles as stated in the facts. In Al Werfalli, public shooting of the victims,
with their hands tied behind their backs, was considered to establish sufficient gravity 18, whereas,
the manner of commission of the alleged crime in the present case does not constitute the
required threshold for sufficient gravity. The attacks were a reaction to the continued disdain for
religious rites, as well as an inflammatory speech by Nimah's Prime Minister. As a result, the
alleged offenses in question cannot be regarded to be part of a plan or policy.

d. Impact of Crimes
The impact of the crimes consider inter alia:
a) Sufferings endured by the victims

15
Prosecutor’s Policy Paper on Preliminary Examinations para [63]
16
Supra Note 12 para [56]
17
ICC-OTP (2013) para [64]
18
The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli,( Second Warrant of Arrest), (ICC-01/11-01/17) PTC I
4th July 2018 paras.31-32

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b) Terror subsequently instilled

c) Damage inflicted on the affected communities. 19

Only two attacks were carried out in Nimah's western region. In a population of 10.12 million,
just six members of the ICRC were killed. As a result, the strikes did not put the entire country,
which has the most sophisticated technology and the greatest economy in the Syrenica region, at
risk. Around 271 civilians were injured in all, which cannot be considered sufficient to meet the
seriousness requirement outlined in the Bangladesh/Myanmar authorization. 20

Conclusion:

Overall, the quantitative and qualitative features of the case do not meet the gravity test, and
hence the matter is inadmissible due to insufficient gravity under Rome Statute Article 17(1)(d).

19
ICC-OTP (2013) para [65]
20
Supra Note 11 para [118]

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QUESTION NO.3

Lieutenant Maham Xander is not criminally responsible under Article 25(3)(b) and 25(3)(d) of
the Rome Statute.

i. CRIMINAL RESPONSIBILITY U/A 25(3)(b)

To be liable under Article 25(3)(b), the accused must have ordered, solicited or induced the
commission or attempt of commission of a crime. 21

e. Ordering

There is no substantial evidence that Lieutenant Maham Xander personally directed the Hans'
forces to target humanitarian aid individuals, installations, materiel, units, or vehicles.

f. Soliciting and Inducing

With regard to the terms ‘soliciting’ and ‘inducing’, both characterize the situation whereby the
perpetrator is prompted by another to commit the offense. 22 To be responsible for the mode of
liability of inducing, the following objective and subjective elements must be fulfilled:

i. the person exerts influence over another person to either commit a crime which in fact
occurs or is attempted;
ii. the inducement has a direct effect on the commission or attempted commission of the
crime;
iii. the person is at least aware that the crimes will be committed in the ordinary course of
events as a consequence of the realization of the act or omission. 23

In the present case:

a) To begin with, Lieutenant Maham Xander has never instructed or urged the Hans' forces
to attack humanitarian personnel or installations. On the contrary, the lieutenant
mentioned in her statement to the troops, “Our pursuit has always been of peace…this is

21
Article 25(3)(b) of RS
22
The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle
Babala Wandu and Narcisse Arido (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute), ICC-01/05-
01/13, PTC II (11 November 2014) para. 34.
23
The Prosecutor V. Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the
Charges ofthe Prosecutor Against Bosco Ntaganda), ICC-01/04-02/06, PTC II ( 9 June 2014) para. 153

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not a battle against the people of Nimah”. 24 It is worth mentioning that the lieutenant was
still talking about peace despite the provocative statement given by the PM of Nimah on
12thJanuary, 2020.25
b) Secondly, the attack cannot be deemed a direct result of Xander's remarks because there
is a significant time interval between the speech and the attack.
c) Finally, the lieutenant could not have predicted that an attack would be directed on
humanitarian items as a result of her speech because she did not openly or implicitly
command anybody to commit the accused act. It was nothing but a speech aimed to
motivate the disgruntled troops.

As a result of the foregoing arguments, Lieutenant Maham Xander is not criminally accountable
under Article 25(3)(b).

ii. CRIMINAL RESPONSIBILITY U/A 25(3)(d)

The accused is liable under article 25(3)(d) when he/she contributes in any other way to the
commission or attempted commission of crime by a group of persons acting with a common
purpose.26 To be responsible under article 25(3)(d), following requirements must be satisfied;

Objective Elements:

(i) a crime within the jurisdiction of the Court is attempted or committed;

(ii) the commission or attempted commission of such a crime was carried out by a group of
persons acting with a common purpose;

(iii) the individual contributed to the crime in any way other than those set out in Article 25(3)(a)
to (c) of the Statute;

Subjective Elements:

(i) the contribution shall be intentional; and

(ii) shall either (a) be made with the aim of furthering the criminal activity or criminal purpose of
the group; or (b) in the knowledge of the intention of the group to commit the crime. 27

24
Case, para.[26]
25
Case, para. [25]
26
Article 25(3)(d)

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The aforementioned prerequisites can be broken down into two important elements: the
commission of a crime by a group with a shared goal and the contribution of the accused.

a. There was not any common purpose of the group

The statutory requirement of common purpose is identical to the concept of common plan
discussed by the court in Lubanga Decision.28 Xander cannot be said to have conspired with the
group as there was no prior common plan to commit the alleged crime. It cannot be interpreted
from the given facts that there was any common plan/purpose to attack humanitarian personnel
or installations. The attacks were directed towards military objectives, without any inclusion of
criminality on the part of the accused. However, to be responsible under the concerned article,
the alleged crime must be carried out by a group of persons acting with a common purpose that
includes an element of criminality.29

b. There was not any contribution by the accused

To be criminally responsible under article 25(3)(d) of the Statute, a person must make a
significant contribution to the crimes committed or attempted. 30Significant contribution may be
assessed by factors such as whether the person created or merely executed the criminal plan or
the role played by the suspect.31 In the present case, Xander neither created nor executed the plan
of attacking humanitarian objects. In fact, there was not even any prior plan to be executed.
Moreover, she did not play any material role in the alleged crime. Her contribution (a speech)
was meager rather than significant. Hence, her contribution does not meet the threshold of
significance, so the responsibility under this provision does not arise. 32

Conclusion:

Lieutenant Xander's acts do not constitute an order, inducement, or contribution to a crime. As a

result, as argued above, she is not criminally responsible under Article 25(3)(b) and (d) of RS.

27
The Prosecutor v. Callixte Mbarushimana (Decision on the Prosecutor's Application for a Warrant of Arrest
against Callixte Mbarushimana) ICC-01/04-01/10 PTC I (28 September 2010) para.39
28
The Prosecutor v. Thomas Lubanga Dyilo (Decision on the confirmation of charges) ICC-01/04-01/06 PTC I (29
January 2007), para 343-344
29
The Prosecutor v. Callixte Mbarushimana (Decision on Confirmation of Charges), ICC-01/04-01/10 PTC I (16
December 2011) para. 271
30
Ibid, para.285
31
Ibid, para.284
32
Ibid, para.283

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PRAYER FOR RELIEF

Wherefore, in light of the issues raised, arguments advanced, and authorities cited,

The Defense humbly submits:

 This Court does not have jurisdiction to prosecute the Defendant pursuant to Article 5,
Article 12, Article 17 & Article 25 of the Rome Statute.
 The case against Defendant is inadmissible at the ICC, as there are insufficient number
of victims and range of qualitative factors present to satisfy the gravity threshold under
Article 17(1)(d) of the Statute.
 The Defendant’s acts do not satisfy the requirements of inducing and contribution in
commission of War Crime, in accordance with Article 25(3)(b) & 25(3)(d) of the Statute
respectively. He cannot be held criminally responsible due to lack of required elements.

AND/OR Pass any order, as it deems fit, in light of justice, equity, and good conscience.

Respectfully Submitted/-

Counsel for the Defense

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