Cour Pénale Internationale International Criminal Court Original: English No.: ICC-01/07

TRIAL CHAMBER I

Before: International Criminal Court Moot Competition Pace Law School

SITUATION IN THE STATE OF ALBILION IN THE CASE OF

THE PROSECUTOR v. HENRY LYNCH, THOMAS DANE AND JACKSON CRAY

Santa Clara University School of Law

Team No. 1 Office of the Prosecutor Counsel for Defense Ms. Monica Toole Mr. Adam Partridge

Legal Representation of Victims Ms. Jacqueline Binger

Memorial on Behalf of the Victims

Memorial on Behalf of the Defense

ii

TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………………………….ii

LIST OF AUTHORITIES……..…………………………………………………………………….iii

QUESTIONS PRESENTED…………………………………………………………………...……..ix

SUMMARY OF PLEADINGS……………………………………………………………………..... ix

STATEMENT OF FACTS……………………………………………………………………………1

PLEADINGS.…...…………………………………………………………………………………...1

I. ALLOWING TIERNA TO RETAIN JURISDICTION IS REQUIRED BY THE

PRINCIPLE OF COMPLEMENTARITY IN ARTICLE 17, AS WELL AS THE

INTERESTS OF JUSTICE……………………………………………………………1

A. Complementarity is the object and purpose of the Rome Statute…………………2

B. Given both Tierna’s willingness and ability to genuinely investigate and prosecute

this matter, exercising jurisdiction over the accused would violate the principle of

complementarity as seen in both the Preamble and Article 17 of the

Statute……………………………………………………………………………...2

1. Tierna is “willing” to genuinely prosecute the Accused under Article 17……3

2. Tierna is genuinely able to carry out an investigation and prosecution against

the Accused........................................................................................................4

C. Allowing Tierna to retain jurisdiction in this case would best serve the interests of

justice for Tierna, the Victims, Albilion and the international community as a

whole……………………………………………………………………………....6

1. Allowing Tierna to retain jurisdiction would serve the interests of justice for

Tierna because it would help legitimize the post-occupation government........7

2. Allowing Tierna to retain jurisdiction would serve the interests of justice for

the Victims by allowing the post-occupation government to affirmatively act

for their benefit..................................................................................................7

3. The presence of sufficient safeguards and recourse available to the Court

ensures that the risk of Tierna unsuccessfully prosecuting this case are

minimized..........................................................................................................8

iii

II. ALBILION WAS NOT A STATE PARTY AT THE TIME OF THE REFERAL OF

THIS CASE TO THE ICC, THEREFORE THE ICC HAS NO JURISDICTION

PURSUANT ARTICLE 18 OF THE ROME STATUTE…………………………….9

III. TIERNA MAY CHALLENGE THIS COURT’S JURISDICTION AND

ADMISSIBILITY OF THE CASE UNDER ARTICLE 19 OF THE ROME

STATUTE BECAUSE THE BLOODY THURSDAY TERRORIST ATTACK IS

NOT A WAR CRIME, OR A CRIME AGAINST HUMANITY AND THEREFORE

THE COURT LACKS SUBJECT MATTER JURISDICTION……………………..10

A. Tierna may challenge the jurisdiction of the Court and the admissibility of the

case under Article 19…………………………………………………………….10

B. The Bloody Thursday Attack does not fit within the subject matter jurisdiction of

this Court………………………………………………………………………...11

1. Bloody Thursday did not have sufficient “nexus” to the armed conflict

between the TRA and the Albilion government and army…………………..12

2. Bloody Thursday was a terrorist attack, a subject matter deliberately excluded

from this Court’s jurisdiction and was not a massive frequent, and large scale

action as contemplated by the drafters of the Rome Statute............................13

PRAYER FOR RELIEF……………………………………...……………………………………..15

CERTIFICATION……………………………………………………………………….................16

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LIST OF AUTHORITIES

INTERNATIONAL CRIMINAL COURT STATUTE, RULES AND DOCUMENTS

Office of the Prosecutor of the International Criminal Court, Informal Expert Paper: The

Principle of Complementarity in Practice, (Oct. 2003). [hereinafter Informal Paper].

Rome Statute of the International Criminal Court, Nov. 10, 1998, U.N. Doc. No. A/CONF. 183/9

(July 17, 1998). [hereinafter Rome Statute].

Rules of Procedure and Evidence, ICC-ASP/1/3 (A)(2000). [hereinafter ICC Rules].

OTHER INTERNATIONAL TREATIES AND DOCUMENTS

Acts of Terrorism Transcending National Boundaries 18 U.S.C. 2332b (West 2004).

American Servicemembers’ Protection Act of 2002 22 USCA 7421-7432 (West 2004).

International Convention for the Suppression of Terrorist Bombings, Jan. 9, 1998, 37 I.L.M. 249

(1998).

Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,

Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570, 974 U.N.T.S. 1771.

Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, Ceremony for the

Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (June 16, 2006)

[hereinafter Chief Prosecutor Ceremony].

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. [hereinafter

Vienna].

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INTERNATIONAL CASES

Prosecutor v. Akayesu, Judgement, No. ICTR-96040T (Sept. 2, 1998). [hereinafter Akayesu].

Prosecutor v Blaskic, Case No. IT-95-14-T, Judgement (March 3, 2000). [hereinafter Blaskic].

Prosecutor v. Clement Kayishema & Obed Ruzindana, Case Number ICTR-95-1-T, (21 May

1999). [hereinafter Kayishema].

Prosecutor v. Zenjil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Judgment Case No.

IT-96-21-T, (16 Nov. 1998). [hereinafter Landzo].

Prosecutor v Tadic, Case No. IT-94-1 (October 2, 1995). [hereinafter Tadic].

BOOKS AND WORKS IN COLLECTIONS

Gilbert Bitti and Håkan Friman, Participation in the Proceedings, in THE INTERNATIONAL

CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, 456 (Roy S.

Lee, ed., 2001) [hereinafter Bitti].

Bruce Broomhall, INTERNATIONAL JUSTICE AND THE INTERNATIONAL CRIMINAL

COURT (Oxford ed., 2003). [hereinafter Broomhall].

Thomas Clark, The Prosecutor of the International Criminal Court, Amnesties, and the

“Interests of Justice”: Striking a Delicate Balance, 4 WASH. U. GLOBAL STUD. L. REV. 389

(2005).

Laura A. Dickinson, The Promise of Hybrid Courts, 97 AM. J. INT’L L. 295 (2003). [hereinafter Dickinson].

vi

Jerry Fowler, THE TOME TREATY FOR AN INTERNATIONAL CRIMINAL COURT: A FRAMEWORK OF

INTERNATIONAL JUSTICE FOR FUTURE GENERATIONS, 6(1) Human Rights Brief (Fall 1998).

[hereinafter Fowler].

Christopher K. Hall, Article 19, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL

CRIMINAL COURT: OBSERVERS’ NOTES, ARTICLE BY ARTICLE, 403 (Otto Triffterer, ed., 1999).

[hereinafter Hall].

John T. Holmes, Complementarity: National Courts versus the ICC, in THE ROME STATUTE OF

THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 667 (Antonion Casses ed., 2002 Otto

Trifterer, ed, 1999). [hereinafter Holmes].

Hans-Peter Kaul, Developments at the International Criminal Court, 99 AM. J. INT’L L. 370

(2005). [hereinafter Kaul].

Roy S. Lee, Chapter 6: Victims and Witnesses, in THE INTERNATIONAL CRIMINAL COURT:

ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, 427 (Roy S. Lee, ed., 2001).

[hereinafter Lee].

William. A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, (2d ed.,

2004). [hereinafter Schabas].

Sharon A. Williams, Article 17, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL

CRIMINAL COURT: OBSERVERS’ NOTES, ARTICLE BY ARTICLE, 383 (Otto Triffterer, ed., 1999).

[hereinafter Williams].

ARTICLES

Payam Akhavan, The Lord’s Resistance Army Case: Uganda’s Submission of the First State

Referral to the International Criminal Court, 99 AM. J. INT’L L. 403 (2005). [hereinafter

Akhavan].

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Mohamed Elewa Badar, From the Nuremberg Charter to the Rome Statute: Defining the

Elements of Crimes Against Humanity, 5 San D. Int’l L.J. 73 (2004). [hereinafter Badar].

Catherine R. Blanchet, Some Troubling Elements in the Treaty of the Rome Statute of the

International Criminal Court, 24 Mich. J. Int’l L. 647, 654 (2003). [hereinafter Blanchet].

Allison Marston Danner, When Courts Make Law: How the International Criminal Tribunals

Recast the Laws of War, 59 Vand. L.Rev. 1 (2006). [hereinafter Danner].

Mohamed El Zeidy, The Principles of Complementarity: A New Machinery to Implement

International Criminal Law, 23 R MICH. J. INT’L L. 869 (2002). [hereinafter El Zeidy].

Vincent Nimehielle & Charles Jalloh, The Legacy of the Special Court for Sierra Leone, 30

SUM FLETCHER F. WORLD AFF. 107 (2006). [hereinafter Jalloh].

Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579 (2005). [hereinafter Helfer].

Kevin Jon Heller, The Shadow Side of Complementarity: In Effect of Article 17 of the Rome

Statute on National Due Process, 17 CRIM. L. FORUM (2006). [hereinafter Heller].

Human Rights Watch, Policy Paper: The Meaning of “In the Interests of Justice” in Article 53

of the Rome Statute (June 2005) available at

http://hrw.org/campaigns/icc/docs/ij070505.pdf#search=%22interests%20of%20justice%20ICC

%22 (last visited August 30, 2007). [hereinafter Policy Paper].

Darryl Robinson, Defining “Crimes Against Humanity” at the Rome Conference, 93 AM. J.

INT’L L. 43 (1999). [hereinafter Robinson].

Edward T. Swaine, Unsigning, 55 STAN L. REV. 2061 (2003). [hereinafter Swaine].

viii

WEBSITES

http://www.unodc.org/unodc/terrorism_definitions.html

http://www.un.org/law/icc/statute/romefra.htm

MISCELLANEOUS

Pace Law School, International Criminal Court Moot Problem Facts (2007). [hereinafter F.].

Pace Law School, “Memorial Questions and Answers”, e-mail, September 4, 2007 [hereinafter

E-mail].

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QUESTIONS PRESENTED

I. Whether Article 17 of the Rome Statute, regarding admissibility, and the interests of justice

require deferral of this case to Tierna, a State which is demonstrably willing and able to

genuinely investigate and prosecute the Accused.

II. Whether Tierna, as a State which would normally exercise jurisdiction over the crimes

concerned because the perpetrators of the crimes are nationals of Tierna can properly challenge

the admissibility of this case under Article 18 of the Rome Statute.

III. Whether Tierna, a State which is investigating and prosecuting this case, can challenge the

jurisdiction of the Court or the admissibility of this case under Article 19 of the Rome Statute.

SUMMARY OF PLEADINGS

I. Allowing Tierna to retain jurisdiction is required by the principle of complementarity in

Article 17 and the interests of justice.

II. The ICC has no jurisdiction pursuant to Article 18 of the Rome Statute because Albilion was

not a State Party at the time of the referral of this case to the ICC.

III. Tierna may challenge the court’s jurisdiction and admissibility under Article 19 of the Rome

Statute because the Bloody Thursday Terrorist Attack is not an armed conflict, war crime, or a

crime against humanity and therefore this court lacks subject matter jurisdiction in this case.

1

STATEMENT OF FACTS

1. Although the nation of Albilion signed and ratified the Rome Statute in 1999, three years

later, an anti-ICC candidate was swept into office and in an effort to “unsign” the treaty, the

Albilion legislature enacted the anti-ICC Albilionese Citizenry Protection Act (ACPA). (F. at 1-

4). In April 2003, a month after ACPA was enacted, the United Nations Security Council

codified some of the wishes of Albilion and passed a resolution, which exempted Albilionese

peacekeepers from prosecution from the ICC. (F. at 4, 5).

2. In March 2005, 6,666 Albilionese were killed in a terrorist attack dubbed “Bloody Thursday”

when the Albilionese capital was bombed by rogue members of the Tiernan Republican Army

(TRA). (F. at 6). TRA leader Coogan, although acknowledging the desire of Tierna to be free

of Albilion occupation, denied responsibility for the bombings and vowed to bring “these

murderers to justice for their heinous and cowardly attacks on the Albilionese people.” (F. at 6).

Over a year later, Albilion arrested and tortured a confession out of the Accused, who are

citizens of Tierna. (F. at 12).

3. “Bloody Thursday”, led to the collapse of the Albilion government and guerilla warfare with

Tierna. (F. 7-15). The newly elected Albilion Prime Minister rescinded ACPA, requested UN

support to quell the crisis and referred the prosecution of the Accused to the ICC. (F. at 10, 14).

The new Tiernan government challenged the jurisdiction of the ICC in this case. (F. at 18).

PLEADINGS

I. ALLOWING TIERNA TO RETAIN JURISDICTION IS REQUIRED BY THE PRINCIPLE

OF COMPLEMENTARITY IN ARTICLE 17, AS WELL AS THE INTERESTS OF JUSTICE.

4. The principle of complementarity is the reservation to States of the privilege to determine

the forum for prosecution, with the ICC exercising jurisdiction only where national courts are

unwilling or unable. (Art. 17; Broomhall at 115). When a dispute arises between the State and

the Office of the Prosecutor (OTP) regarding the forum of prosecution, it is incumbent upon this

Court to dictate the most appropriate forum consistent with complementarity. (Statute,

Preamble). In the instant case, Tierna has announced that it is genuinely willing and able to

2

prosecute the accused. Relinquishment of the present matter to the national courts of Tierna

would serve complementarity and the interests of justice.

A. Complementarity is the object and purpose of the Rome Statute.

5. The Preamble of the Rome Statute for the International Criminal Court “[e]mphasiz[es]

that the International Criminal Court established under this Statute shall be complementary to

national criminal jurisdictions.” Article 31 of the Vienna Convention of the Law of Treaties

states that the interpretation of treaties requires, inter alia, that the proper context of a treaty is

found by an analysis of the treaty’s preamble language, in which the object and purpose of the

treaty is captured. (Vienna, Art. 31). This means that the focus of complementarity in the

preamble of the Rome Statute represents an intention by the drafters to have the significance of

the complementarity principle exported to the full body of the treaty. (Informal Paper at 4). The

presence of a detailed requirement for complementarity in Article 17 of the Statute further

underscores its importance in deciding this Court’s jurisdiction.

6. This Court should defer jurisdiction to Tierna because doing so would advance the object

and purpose of the Statute, which is to increase the effectiveness and legitimacy of this Court by

showing restraint in not exercising its jurisdiction needlessly. (See Informal Paper at 5). The ICC

was never intended to replace functioning domestic legal systems. (See Clark at 389). “Indeed,

the aspiration of [the Rome Statute’s] drafters will be fulfilled just as surely if national systems

carry out legitimate investigations and prosecutions on their own.” (Id.). As this Court bears in

mind the principle of complementarity throughout this motion, as it must, the only conclusion

that is consistent with complementarity is allowing Tierna to prosecute the Accused.

B. Given both Tierna’s willingness and ability to genuinely investigate and prosecute this matter,

exercising jurisdiction over the accused would violate the principle of complementarity as seen

in both the Preamble and Article 17 of the Statute.

7. Article 17 of the Rome Statute elaborates on the foundational principle of

complementarity by stating that a case does not proceed under this court’s jurisdiction when a

state is investigating or prosecuting unless they are “unwilling or unable” to proceed. The

3

principle of complementarity permits the ICC to exert jurisdiction only under the circumstance

where the accused perpetrators will not be duly tried in national courts. (Schabas at 67; El Zeidy

at 892-93). Article 17 limits the Court’s jurisdiction in favor of national judicial systems

although there are provisions which make exceptions to State primacy. (Holmes at 668). The

current Tiernan Prime Minister stated on the day of the Bloody Thursday attack that Tierna

would bring “these murderers to justice” showing that it has commenced investigating this attack

from the beginning. (F. at 6). As such, this Court must yield to Tierna, a State with jurisdiction

that is willing and is able to genuinely investigate and prosecute the Accused.

1. Tierna is “willing” to genuinely prosecute the Accused under Article 17

8. Article17(1)(a) of the Rome Statute requires this court to allow the national court to

prosecute crimes of it’s own citizens unless the State is “unwilling or unable genuinely to carry

out the investigation or prosecution.” There are essentially three criteria used to determine the

willingness of a State that would otherwise have jurisdiction, all of which can be found in Article

17(2). Unwillingness can be shown (1) by strong evidence the state is “shielding” the accused,

(2) evidence of an “unjustifiable delay” in the proceedings, and (3) evidence of a “lack of

impartiality.” In sum, there must be evidence “inconsistent with an intent” to prosecute justly

and fall short of “principles of due process recognized by international law.” (Art. 17(2)(a)-(c);

Broomhall at 89).

9. There is no reason to believe that the general public or any former TRA authorities would

attempt to shield the Accused given the otherwise unwavering willingness to hold the

perpetrators of Bloody Thursday accountable since the day of the terrorist attack. (F. at 6).

While the current prime minister of Tierna used to be the president of the TRA, Prime Minister

Coogan, contrary to the concept of shielding the perpetrators of the Bloody Thursday, actually

outed the perpetrators as “a rogue extremist faction” that was acting independently and out of

steps with the principles of the TRA. (F. at 6). This shows not merely the absence of an

intention to shield the accused, but an intention by the head of the Tiernan government to seek

justice.

10. In Article 17(2)(b), a State will be unwilling to investigate or prosecute where there has

been an “unjustifiable delay” in the proceedings, which is seen to be inconsistent with an intent

4

to bring the Accused to justice. This, like all of the subparagraphs of Article 7(2), it is in reality

a test of the good faith of the involved State. (Hall at 393-94). The OTP charged the Accused on

February 2007 and in early March, Tierna challenged the jurisdiction of the court, showing a

promptness to act once it was clear that the OTP was in fact going to press charges. (F. at 18).

While the OTP investigation began in September of 2006, waiting until shortly after the OTP

filed charges to challenge the jurisdiction of the ICC (the only fact that could imply a delay),

falls well short of proving a bad faith effort to delay the Accused from facing justice. (F. at 14,

see Hall at 393-394).

11. Article 17(2)(c) was added to the Statute to protect against situations where a State does

not intend to shield the accused, but other individuals may attempt to cause a mistrial, taint

evidence, or otherwise ensure that the accused is found not guilty. (Holmes II at 50-51; El Zeidy

at 901-02). The only fact suggesting the possibility of impartiality-that the current Prime

Minister used to be the head of the TRA-is mitigated by the Prime Minister’s clear statements

and actions on the day of the attack when he stated that the TRA was committed to bringing

“these murderers to justice for their heinous and cowardly attacks on the Albilionese people.”

(F. at 6).

12. Unwillingness to investigate or prosecute must be proven by the OTP by showing either

an intent to shield the accused from justice, unjustifiable delay or lack of impartiality. (Article

17(a)-(c)). Tierna’s willingness to prosecute the accused fairly and in good faith is illustrated by

the statements and actions of former TRA president Coogan who, on Bloody Thursday made it

clear that the prime interest of Tierna was to bring the attackers to justice. Although Tierna was

occupied by Albilion for 85 years, the sentiment of reconciliation turned out to be shared by the

electorate, for in May 2006, free elections in Tierna resulted in the election of Coogan as the

Prime Minister. (F. at 11). Further, on March 2007, Prime Minister Coogan released all the

interred Albilionese military in Tierna as an effort to aide Albilion, showing further the good

faith desire of Tierna to seek justice and mend the wounds shared by both countries. Tierna and

Prime Minister Coogan have shown nothing but a commitment to due process and a specific

commitment to prosecuting the Accused fairly. (F. at 6,11).

2. Tierna is genuinely able to carry out an investigation and prosecution against the Accused.

5

13. While Tierna is demonstrably willing to investigate and prosecute this case, the OTP may

try to strip Tierna of jurisdiction by arguing that Tierna lacks the ability to do so. (Article

17(1)(a); 17(3)). Inability to prosecute may occur if, due to a total or substantial collapse or

unavailability of its national judicial system, a State is unable to obtain either the accused or the

necessary evidence and testimony or otherwise carry out the proceedings. (Article 17(3). Such

an inability was intended by the drafters of the Statute to be limited to situations where nations,

“lacking a central government, or a state of chaos due to a civil war or natural disasters, or any

other event which leads to public disorder”, are prevented from discharging its duty to prosecute

international crimes. (Policy Paper at 4).

14. Two matters currently before the court, Uganda and Congo, are instructive in showing

the high burden that the OTP bears in attempting to show inability is absent in this case. After

referral of the situation regarding the Lord’s Resistance Army (LRA), Uganda was initially

deemed to have a competent judicial system despite the ravages of civil war. (Akhavan at 411).

However, jurisdiction was eventually taken away from Uganda for two very specific reasons, (1)

political policies granting amnesty and (2) an inability to arrest and investigate perpetrators

hiding in Sudan. (Akhavan at 411-414). Tierna’s situation is clearly distinguishable from

Uganda because there are no amnesty policies in place at all, let alone a policy that would free

the accused. Also, since the Accused are already in custody, Tierna has the ability to investigate

the perpetrators as opposed to the accused in Uganda who were still fugitives. Lastly, there is no

evidence that Tierna suffered nearly the amount of damage Uganda did during the civil war, yet

Uganda was initially granted jurisdiction and was only prevented from exercising jurisdiction for

two reasons not present in this case.

15. This case is also notably different from the Congo situation where the Democratic

Republic of the Congo (DRC) was deemed “unable” to investigate or prosecute the accused

because the destruction of the DRC government was “total”. (Kaul at 398). Some scholars have

noted “even with massive outside help and even if it proves possible to settle the civil war, the

national judicial system of the DRC will probably be unable to intervene and prosecute the

gravest crimes that have occurred in the course of the last seven years.” (Kaul at 397). In

contrast to the Congo case, there are no facts that show Tierna suffered “total” collapse under

Albilion occupation or that Tierna is not “able” within the meaning of Article 17(3) to prosecute

the accused. While Tierna was occupied for 85 years, the government was able to humanely

6

wage a military campaign against their occupier, imprison enemy soldiers for one year, hold free

elections and unlike Albilion, did not require the presence of UN peace keepers at any point

during this period of unrest. (F. at 9, 11, 16, 20). Tierna’s post-conflict setting does not at all

denote that the physical infrastructure of its judicial system is or ever has been damaged or

substantially collapsed, nor does it indicate a debilitating lack of judges, prosecutors, or other

court personnel. (Id; see Heller at 9; Informal Paper at 8; El Zeidy at 903). Tierna’s current

status as a functioning democracy shows that it is exercising effective control over its territory,

and therefore possesses the ability to prosecute the Accused. (See Holmes at 48-49).

C. Allowing Tierna to retain jurisdiction in this case would best serve the interests of justice for

Tierna, the Victims, Albilion and the international community as a whole.

16. Jurisdiction between national and international entities should be governed by a

consideration of the interests of both communities. (El Zeidy at 889). The interests of both

communities can be served by having the national courts of Tierna adjudicate this case. The

advantages of national courts adjudicating cases of international significance can be seen, for

example, in the case of Sierra Leone. In the tribunal in Sierra Leone there have been many

advantages to prosecuting the case in the country, including reduction of costs, ease of facilities,

collection and preservation of evidence, and interaction with witnesses. (Jalloh at 107). Local

adjudication gives the impacted community an opportunity to closely follow the trial and

promote social stability during the transitional period. (Jalloh at 108, Broomhall at 84). These

significant benefits are lost in trials held at The Hague because it is so far removed from the

scene of atrocities and staffed by international judges and staff. (Dickinson at 302). These types

of far removed trials held outside of the country have been looked at with suspicion by the

affected population that hears very little about what is occurring in the trials. Id. These

criticisms have also been levied against the ICTR, which is located in Tanzania, relatively closer

to from the effected areas than The Hague. (Broomhall at 84). Removing jurisdiction from

Tierna to The Hague or anywhere other than Tierna would renew criticisms of the ICC and

undermine the interests of both the ICC and Tierna.

7

1. Allowing Tierna to retain jurisdiction would serve the interests of justice for Tierna because it

would help legitimize the post-occupation government.

17. The perceived legitimacy of domestic judicial institutions in post-conflict situations is

often subject to question. (Dickinson at 304). Thus, it is imperative for the Tiernan judicial

system to be supported and distinguished from its former occupied status. Article 3(3) of the

Rome Statute provides that the Court may sit somewhere other than the seat at The Hague

whenever it considers it desirable. However, even if this Court does find it desirable to sit in

Tierna (or in a neighboring state), such a move would simply underscore the weakness and

illegitimacy of the post-occupation Tierna government to prosecute and investigate Tierna’s own

citizens in Tierna’s own court system. Furthermore, the work of the ICC at The Hague is

physically and culturally remote from Tierna, which has the effect of detaching the public from

the proceedings. The judges and personnel will not be drawn from the local Tiernan population,

making domestic legal professionals less likely to apply, interpret and internalize the law

developed in the case. (Dickinson at 305). Allowing Tierna to prosecute the Accused will

strengthen the legitimacy of the post-occupation government, which is attempting to establish its

place in the international community as well as with its own people.

2. Allowing Tierna to retain jurisdiction would serve the interests of justice for the Victims by

allowing the post-occupation government to affirmatively act for their benefit.

18. A publicly held trial in Tierna by Tiernan nationals against its own citizens who allegedly

perpetrated crimes against their former occupier would serve at least three benefits for the

victims of Bloody Thursday. First, Tierna’s fair prosecution of this case would act as a formal

acknowledgement of Tierna’s repudiation of the attack. Second, retaining jurisdiction will also

simultaneously act as an olive branch to their former oppressors and victims of the attack by

showing a sincere desire to seek justice for Bloody Thursday. (See van Zyl at 659). This form of

national acknowledgment will have an important and lasting impact on Tiernan-Albilion

relations as well as fostering acceptance of the two cultures and offering some closure for the

victims. (See Dickinson at 308). Third, allowing Tierna to retain jurisdiction will enable the

victims’ personal sufferings to be publicly recognized as the investigation and prosecution

8

unfold. (Policy Paper at 19; van Zyl at 659). Such publicity will be minimized by removing the

trial geographically and culturally by the superseding authority of the ICC. Confronting the

Accused and finding support within the Tiernan judicial system can lead towards simultaneous

healing of both the victims and the two nations of Tierna and Albilion.

3. The presence of sufficient safeguards and recourse available to the Court ensures that the risk

of Tierna unsuccessfully prosecuting this case are minimized.

19. Assuming arguendo that this Court allows Tierna to investigate and prosecute this case

and Tierna is subsequently found unwilling or unable to effectively do so, the Rome Statute

provides sufficient safeguards to ensure that the Accused do not escape justice because a State

did not turn out to be willing or able to effectively prosecute. These provisions allow the ICC

and the OTP to conduct meaningful monitoring of the case and permit intervention when

necessary.

20. First, pursuant to Article 19(11), the OTP may request information from Tierna regarding

the proceedings and use this information, which is actually broader in scope than that available to

the OTP under Article 18, to make a determination whether or not to resume prosecution. (Hall

at 418). Even with the prior deferral from Albilion, Article 19(11) does not put a time limit on

the OTP to either request information or notify the State that an ICC investigation will resume,

therefore, in the event of improper prosecution by Tierna, the OTP may disallow deferral at any

time. Id.

21. Second, Article 53(4) allows the OTP to reconsider initiating an investigation or

prosecution, at any time, based on new facts or information. This provision grants the Prosecutor

a discretionary power to resurrect an investigation or prosecution that he or she had previously

decided not to pursue. (Hall at 713). While there is no explicit empowerment in Article 53 for

the OTP to prosecute with the initiation of an investigation, the manner in which 53(4) is worded

confirms that power is obvious and presumed that the outcome of the investigation may be a

decision by the OTP to initiate a prosecution. (Hall at 713-14). The only requirement is that

new information or facts become available as determined by the prosecutor. This means that if

Tierna fails to responsibly prosecute the Accused, this fact alone may suffice as “new

information” which would allow the OTP to once again reassert jurisdiction.

9

22. These various safeguards allow the Court and OTP broad discretion in monitoring the

national proceedings while not infringing upon Tierna’s sovereignty. The OTP may request or

merely observe new information and reinitiate prosecution. Allowing Tierna to attempt to

prosecute the Accused therefore gives Tierna the benefits of attempting to strengthen its post-

occupation government while offering no real threat to the due process rights of the Accused.

II. ALBILION WAS NOT A STATE PARTY AT THE TIME OF THE REFERAL OF THIS

CASE TO THE ICC, THEREFORE THE ICC HAS NO JURISDICTION PURSUANT

ARTICLE 18 OF THE ROME STATUTE

23. The OTP has jurisdiction to begin an investigation if they receive a referral by a State

Party under Article 13(a). (Article 18(1)). Article 127(1) makes ordinary withdrawal from the

Statute subject only to the State giving written notice addressed to the Secretary-General of the

United Nations. A year after proper notice is given, withdrawal from the treaty takes effect.

(Article 127). If a state withdraws from the Rome Statute, their referrals do not create

jurisdiction for this Court under Article 18. There are many facts that show Albilion intended to

“unsign,” or more precisely, withdraw from the Rome Statute, through giving written

notification addressed to the Secretary-General of the United Nations as required by Article 127

of the Statute.

24. Albilion signed and ratified the Rome Statute in 1999, however new Prime Minister

Eiling announced his intention to withdraw the Rome Statute in January of 2003. (F. at 1, 2).

Two months later the Albilionese legislature passed a law that was clearly designed to repudiate

Albilion’s intention to be subject to the Statute. (F. at 4). The Albilionese Citizenry Protection

Act (ACPA) authorized a host of activities antithetical to the ICC including authorization for the

use of military force to liberate any Albilionese citizen or citizen of an Albilionese-allied country

being held by the ICC, withdrawal of Albilionese military assistance from countries ratifying the

ICC treaty, and restricted Albilionese participation in United Nations peacekeeping unless

Albilion obtained immunity from prosecution by the ICC. (F. at 4). The next month, the UN

Security Council agreed on a resolution which exempted Albilionese peacekeepers from

prosecution under the ICC. (F. at 5).

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25. ACPA, with all of its anti-ICC provisions, was written for the purpose of expressing

Albilion’s intent to no longer be bound by the Rome Statute. (F. at 4). Article 127 authorizing

withdrawal uses clear and broad language which only requires written notification to the UN.

There is no language that excludes legislation from being this “written notification.” (Article

127(1)). ACPA was enacted in March 2003 and the UN likely received the written notice at that

time because less than a month later, it passed resolution 2214 codifying the anti-ICC sentiment

of Albilion, which exempted peacekeepers from prosecution by the ICC. (F. at 4). This UN

resolution shows, at a minimum, that the UN received the written notification that was addressed

to the Secretary General because of how quickly resolution 2214 was passed. ACPA suffices as

the requisite written notification under Article 127. Because Article 127 states that withdrawal

takes effect one year after the date of receipt of the notification, Albilion ceased to be a State

Party of the Rome Statute in either March or April of 2004, depending on when exactly the UN

received the notice. It is clear that the UN received it, at the latest, in April because that is the

same month the UN passed resolution 2214 exempting Albilion peacekeepers from prosecution

as stated in ACPA. (F. at 4). While efforts were made two years later by Prime Minister Essex

to rescind ACPA and other anti-ICC legislation, the withdrawal had already taken effect and

could not be undone short of resigning and re-ratifying the treaty, something that Albilion never

did. (F. at 10). Because Albilion was no longer a party state when they attempted to refer this

case to the ICC in September of 2006, the referral to the OTP is not valid under Article 18 and

therefore this Court lacks the jurisdiction to prosecute this case.

III. TIERNA MAY CHALLENGE THIS COURT’S JURISDICTION AND ADMISSIBILITY

OF THE CASE UNDER ARTICLE 19 OF THE ROME STATUTE BECAUSE THE BLOODY

THURSDAY TERRORIST ATTACK IS NOT A WAR CRIME, OR A CRIME AGAINST

HUMANITY AND THEREFORE THE COURT LACKS SUBJECT MATTER

JURISDICTION.

A. Tierna may challenge the jurisdiction of the Court and the admissibility of the case under

Article 19.

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26. The Rome Statute gives the court jurisdiction only over those offenses “limited to the

most serious crimes to the international community as a whole,” only two of which come into

play in the present case. (Article 5, F. at 17). This Court has the right to consider challenges to

its jurisdiction. (Tadic para. 18). Article 19(2) expressly allows “challenges to the jurisdiction

of the Court.” Paragraph 2 does not define jurisdiction specifically, nor the method in which

jurisdictional challenges may be brought under 19(2). This implies that challenges to jurisdiction

on any ground, including subject matter, may be made in any reasonable way under this

provision. (Hall at 409). Furthermore, under Article 19(2), a State may challenge the

admissibility of the case, including states that base jurisdiction on the nationality of the suspect

or victim.” (Hall at 410). Because the Accused are citizens of Tierna, Tierna may challenge the

admissibility of the Court under Article 19(2). Article 19(2)(b) appears to limit the grounds of

challenging admissibility of a case to those listed in Article 17(a) and (b). (Id.) In other words,

under this interpretation, if a State is able and willing under Article 17 to genuinely carry out an

investigation or prosecution it may challenge the admissibility of the case. (See Article 17

discussion supra). Another interpretation of Article 19(2)(b) is simply to limit challenges of

admissibility States that have or will investigate or prosecute. (Hall at 411). Tierna has already

done this by challenging the jurisdiction of this Court, suggesting a willingness to bear the costs

of investigation and prosecution themselves. (F. at 18). Therefore, Tierna’s challenge is proper.

B. The Bloody Thursday Attack does not fit within the subject matter jurisdiction of this Court.

27. The OTP has chosen to charge the Accused with war crimes and crimes against

humanity, both of which constitute “the most serious crimes” of which this Court has jurisdiction

under Article 5. (F. at 17). However, war crimes and crimes against humanity are given

narrower interpretations later in the Statute. (See Article 7; 8). Specifically Article 8 of the

Rome Statute grants the court jurisdiction in a very specific type of war crime, namely those

armed conflicts that are “committed as part of a plan or policy or as part of a large scale

commission of such crimes.”(Article 8(1)). Similarly, Article 7 also provides for very narrow

portion of crimes against humanity that are “committed as part of a widespread or systematic

attack directed against any civilian population, with knowledge of the attack.”(Article 7(1)). The

Bloody Thursday attack, regardless of the guilt or innocent of the Accused, does not fit into the

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definitions of either a war crime or a crime against humanity, which strips the court of subject

matter jurisdiction.

1. Bloody Thursday did not have a sufficient “nexus” to the armed conflict between the TRA and

the Albilion government and army.

28. The law of war or international humanitarian law, of which war crimes and crimes

against humanities are a part of, applies in the context of armed conflict, whether internal or

external. (Danner at 1). It is thus important as a preliminary matter to distinguish between those

situations that qualify as armed conflicts, and thus trigger the law of war and the definition of a

war crime. The International Criminal Tribunal of Yugoslavia (ICTY) stated that “an armed

conflict exists whenever there is a resort to armed force between States or protracted armed

violence between governmental authorities and organized armed groups or between such groups

within a State.” (Tadic para. 573). In order to properly label an attack a war crime, it must have

a sufficient nexus to an armed conflict and that link must be obvious. (Landzo para. 193). The

same point of view is reflected in Tadic, where the Trial Chamber stated that “the only question

to be determined in the circumstances of each individual case was whether the offenses were

closely related to the armed conflict as a whole.” (Tadic, para. 573). Assuming arguendo that

the relationship between Albilion and Tierna was an armed conflict, Bloody Thursday does not

have a sufficient nexus to the armed conflict to trigger international law.

29. A case out of Rwanda is instructive in showing the high burden in proving an attack has

sufficient nexus to an armed conflict. Clement Kayishema, the prefect of Kibuye prefecture was

charged for war crimes in connection with massacres at four main sites within Rwanda.

Kayishema argued that the acts for which he was charged did not constitute war crimes because

they were unconnected with the war. (Kayishema). In discerning how to best determine a nexus

between the criminal act and the armed conflict, the Kayishema court held a “direct connection

between the alleged crimes…and the armed conflict should be established factually…It is

incumbent upon the Prosecution to present those facts and to prove, beyond a reasonable doubt,

that such a nexus exist.” (Kayishema par. 188). The prosecution was able to show that the

Rwandan Patriotic Front (RPF) and the Rwandan Armed Forces (FAR) were attacking civilians

13

all over the prefecture before the massacres took place. However, it was also proved that “these

attacks were undertaken by the civilian authorities as a result of a campaign to exterminate the

Tutsi population in the country.” (Para. 602 emphasis added). This means the prosecution failed

to prove the requisite nexus between crime and conflict because the civilian authorities had

perpetuated the massacres sua sponte, without any direction from the leaders of the armies

involved in the actual overall armed conflict, despite the fact that they shared similar military

goals. (Id.).

30. The instant case is analogous to Kayishema because there is a legitimate armed conflict

between two state actors, namely the Abilion army and the TRA. (F. at 6). In the context of

these respective conflicts, there are civilians taking matters into their own hands with the

slaughtering of the Tutsi and Albilion civilians. Also, the perpetrators of these attacks did so

independently of the leaders of the armed conflict. TRA leader Coogan stated on Bloody

Thursday that the TRA was “at war with the Albilionese government and the Albilionese

troops.” (F. at 6). Coogan did not say that the TRA was at war with the Albilion people in

general and, on the same day of the attack, condemned the “murderers” as a “rogue extremist

faction” who would be brought “to justice for their heinous and cowardly attacks on the

Albilionese people.” (Id.). The reaction of Coogan, the leader of the TRA and the utter lack of

evidence that the perpetrators of the Bloody Thursday attack were acting on official orders from

the TRA shows clearly that the Bloody Thursday attack lacks the necessary nexus to the armed

conflict between Tierna and Albilion. Because there is no nexus to the armed conflict, the attack

cannot be considered as either a war crime or crime against humanity under international

humanitarian law.

2. Bloody Thursday was a terrorist attack, a subject matter deliberately excluded from this

Court’s jurisdiction and was not a massive, frequent, and large scale action as contemplated by

the drafters of the Rome Statute.

31. Article 7(1) of the Rome statute confirms that, “for the purpose of this Statute, ‘crime

against humanity’ means any of the following acts when committed as part of a widespread or

systematic attack directed against any civilian population, with knowledge of the attack.” This

definition provides two relevant elements in this case necessary for analysis; whether the attack

14

against the civilian population was widespread or whether the attack was systematic. The ICTY,

when interpreting what a widespread attack against a civilian population means, also noted that

“there must be some form of a governmental, organizational or group policy to commit these

acts.” (Tadic para. 644). The French Cour de Cassation in the Barbie and Tovier cases required

the criminal acts be affiliated with or accomplished in the name of “a state practicing a policy of

ideological hegemony.” (Robinson p. 50). The ICTY also correctly stated that “the traditional

conception was, in fact, not only that a policy must be present but that the policy [behind the

crime] must be that of a State.” [Id.]

32. The words “widespread” and “systematic,” especially put together in a disjunctive test

seem to be a rather inclusive test. However, the drafters of the Statute compensated for this by

giving a narrower definition of attack to alleviate the concerns about an unqualified, disjunctive

test. (Robinson p. 51). As a result, the prosecution must establish an “attack directed against

any civilian population,” which involves multiple acts and a policy element accredited to a state,

and show that this attack was either widespread or systematic. (Id.) “Widespread” is a high-

threshold test, requiring a substantial number of victims and “massive, frequent, large scale

action.” (Akayesu para. 652). The term “systematic” requires a very high degree of organization

or orchestration, and has been interpreted by the ICTR as meaning “thoroughly organized and

following a regular pattern on the basis of a common policy involving substantial public or

private resources.” (Robinson p. 50, Akeyesu para. 652).

33. In all of the unfortunate events that have unfolded since the Bloody Thursday attack,

none of them have been armed conflicts targeting civilians perpetrated by Tierna or the TRA. (F.

at 6-20). TRA leader Coogan was very clear when noting who the TRA was and was not at war

with when he stated that the Albionese government and army were their enemies and deliberately

omitted that the Albilionese people themselves were enemies of the TRA. (F. at 6). Coogan also

declared the perpetrators of the attack were the “murderers” as a “rogue extremist faction” who

would be brought “to justice for their heinous and cowardly attacks on the Albilionese people.”

(Id.). The Bloody Thursday attack lack the frequency and state anchored policy needed to rise to

the level of a crime against humanity and therefore this court does not have the jurisdiction to

prosecute the accused under these charges. (see Article 5).

34. Lastly, if the Bloody Thursday attack sounds more like a terrorist attack than the narrow

definitions of war crime and crimes against humanity, that is because it is, in fact, a terrorist

15

attack.1 Despite much debate among the drafters of the Statute surrounding the inclusion of

terrorism as a crime subject to the ICC’s jurisdiction, most states considered it to be particularly

problematic to the extent that no generally accepted definition of the crime of terrorism arose out

of the debate. (Hall at 98; footnote 1). They considered that the inclusion of this crime might

have politicized the Court to a very high degree. (Hall at 99). A proposal to include acts of

terrorism in the list of crimes against humanity would have represented a novelty in international

law, and run counter to the generally accepted approach during the work of the Rome

Conference consisting of the codification of preexisting rules of customary international law.

(Id.). This Court would contravene the wisdom of the drafters of the Statute if it now took

Bloody Thursday, an act that fits much more easily as a terrorist act than a war crime or crime

against humanity, and attempted to assert jurisdiction over a crime that was quite deliberately

excluded by the drafters. This Court should limit itself to crimes that have been codified as

international law and avoid the specter of having “politicized the Court to a very high degree” by

prosecuting a terrorist act.

PRAYER FOR RELIEF

Allowing Tierna to retain jurisdiction is required by the principle of complementarity in

Article 17 and the interests of justice. Furthermore, this Court must defer this case because of a

lack of jurisdiction and admissibility under Article 18 and Article 19. Therefore we respectfully

ask this Court to reverse its original decision to investigate and prosecute this case and relinquish

the matter to the national courts of Tierna.

1 While there are many bilateral agreements defining terrorism, there is no established international definition. E.g., Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570, 974 U.N.T.S. 177;l International Convention for the Suppression of Terrorist Bombings, Jan. 9, 1998, 37 I.L.M. 249 (1998). The United Nations laments the lack of an international definition, pointing to the obstacle of one state's “terrorist” is another state's “freedom fighter”. (http://www.unodc.org/unodc/terrorism_definitions.html). The United States defines terrorism as “an offense that” “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C Sec. 2332(b)(5). The perpetrators of Bloody Thursday were rogue members of the Tiernan Republican Army, whose goal was to free Tierna from being occupied by Albilion. (F. at 6). It was with this goal in mind that these rogue agents bombed this train station. (F. at 6). This bombing levied at civilians for the purpose of reaching political goals fits comfortably into most definitions of terrorism.

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CERTIFICATION

We hereby certify that the memorials for Santa Clara University School of Law are the products

solely of the undersigned and that the undersigned have not receive any faculty or other

assistance, other than that allowed for in the Rules, in connection with the preparation of these

memorials.

X Adam Partridge Date: 9/6/07

X Monica Toole Date: 9/6/07

X Jacqueline Binger Date: 9/6/07