Respondent

6TH RMLNLU SCC ONLINE INTERNATIONAL MEDIA LAW MOOT 2018
TEAM CODE: T-32
THE INTERNATIONAL CRIMINAL COURT
AT THE HAGUE, NETHERLANDS
BEFORE THE TRIAL CHAMBER
“THE CASE CONCERNING THE RED BROADCASTS”
(Under Article 13(b) of the Rome Stature)
PROSECUTOR …….. Prosecution

v.
HIS ROYAL HIGHNESS,

FELOCIOUS VON TRAPTA AND
VALFUS VON TRANSAL ……... Defendants
MEMORIAL FOR THE PROSECUTION
6TH RMLNLU SCC ONLINE INTERNATIONAL MEDIA LAW MOOT,

2018
MEMORANDUM ON BEHALF OF THE DEFENSE

TABLE OF CONTENTS
A. TABLE OF CONTENTS……………………………………………………………….............. i
B. LIST OF ABBREVIATIONS…………………………………………………………………... ii
C. INDEX OF AUTHORITIES…………………………………………………………………… iii
D. STATEMENT OF JURISDICTION…………………………………………………………... vii
E. STATEMENT OF FACTS……………………………………………………………………... viii
F. ISSUES RAISED………………………………………………………………………………... x
G. SUMMARY OF ARGUMENTS……………………………………………………….............. xi
H. ARGUMENTS ADVANCED…………………………………………………………………... 1
1. THE ICC DOES NOT HAVE THE POWER TO EXERCISE JURISDICTION IN THE 1
PRESENT MATTER
2. HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED IMMUNITY FROM 7
PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE
3. MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE NOT GUILTY OF 11
WAR CRIMES, CRIMES AGAINST HUMANITY AND GENOCIDE
4. MR. TRANSAL IS NOT GUILTY OF GENOCIDE, A CRIME AGAINST HUMANITY 15
AND A WAR CRIME BY VIRTUE OF HIS SPEECH
I. SUBMISSIONS TO THE COURT 20

i
LIST OF ABBREVIATIONS
¶ Paragraph
Art. Article
Doc. Document
DCC Dragoonia Casting Corporation
Ed. Editor
EEEKD The Exalted Empire of the Ecclesiastical and
Confederating Kingdoms of Dragoonia
Eg. Example
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
KCS The Kingdom and Commonwealth of Sømland
KLF Keljuk Liberation Army
No. Number
OTP Office of the Prosecutor
SCC Sømian Casting Corporation
UN United Nations
UNGA United Nations General Assembly
UNSC United Nations Security Council
v. Versus
VCLT Vienna Convention on the Law of Treaties

ii
INDEX OF AUTHORITIES
Books and Articles
 M. Di Filippo, "Terrorist crimes and international co-operation: critical remarks on the

definition and inclusion of terrorism in the category of international crimes", 19 European
Journal of International Law 533, 567-568 (2008)…………………………………….….4
 P. Burns, "Aspect of Crimes Against Humanity and the International Criminal Court - A
paper prepared for the Symposium on the International Criminal Court, February 3 – 4,
2007; Beijing………………………………………………………………………………4
 BASSIOUNI CHERIF M., CRIMES AGAINST HUMANITY IN INTERNATIONAL
CRIMINAL LAW (2nd edn., 1999)………………………………………………………3
 HAZEL FOX, THE LAW OF STATE IMMUNITY (2002)……………………………..8
 Dapo Akande, International Law Immunities and the International Criminal Court, 98
Am. J. Int'l L. 407 (2004)………………………………………………………………….8
 Danesh Sarooshi, The United Nations and the Development of Collective Security: The
Delegation by the UN Security Council of its Chapter VII Powers (2000)…………………….9
 Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 JICJ 315,
323………….……………………………………………………………………………10
 Gregory Gordon, “From Incitement to Indictment?: Prosecuting Iran’s President for Advocating
Israel’s Destruction and Piecing Together Incitement Law’s Emerging Analytical Framework,”
(2008) 98:3 Journal of Criminal Law & Criminology…………………………………………12
 David Scheffer, Corporate Liability under Rome Statute, 57 Harvard International Law Journal 35 (2016)
 Harmen van der Wilt, Corporate Criminal Responsibility for International Crimes: Exploring the
Possibilities, 12 Chinese J. Int'l L. 43 (2013) …………………………………………………12
 Nadia Bernaz, Corporate Criminal Liability under International Law, 13 Journal of Internal Criminal
Justice 313 (2015) …………………………………………………………………………12
 Julia Graff, Corporate War Criminals and International Criminal Court: Blood and Profits in the
Democratic Republic of Congo, 11 Human Rights Brief 23, 25 (2004).
………………………………12

iii
Cases
 Arrest Warrant Case (Democratic Republic of Congo v. Belgium), 2002 ICJ Reports………...8
 Faurisson v. France, CCPR/C/58/D/1993 (1996)………………………………………17
 Prosecutor v. Duško Sikirica, Damir Došen, Dragan Kolundžija, Case No. IT-95-8-T...2
 Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T (ICTR T. Ch., Judgment, 15
May 2003)………………………………………………………………………………2, 5
 Prosecutor v. Radislav Krstić, Case No. IT-98-33-A…………………………………..1, 2
 Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T…………………………………..2
 Prosecutor v. Alfred Musema, ICTR-96-13-A………………………………………….13
 Prosecutor v. Tihomir Blaskic, IT-95-14……………………………………………..…13
 The Zyklon B. Case (1946) ……………………………………………………………..12
 Prosecutor v. Stakic, Case No. IT-97-24-T (Judgement, 31 July 2003)…………………..3

 Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T (Judgment, 17 January
2005)................................................................................................................................4
 Prosecutor v. Bikindi, Case no. ICTR-01-72-T, Judgment (Trial Chambers), 2 December
2008……………………………………………………………………………………....17
 Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A……………………………….2, 5
 Prosecutor v. Blagoje Simic, IT-95-9-T. ………………………………………..………13

 Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Judgement, 2 September 1998)……5, 15
 Case No. ICTR-95-1-T (ICTR T. Ch., Judgment, 21 May 1999)………………………....2
 Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case no. ICTR-99-62, Judgment and
Sentence, 3 December 2003…………………………………………………………16,17
 Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15 (24 March 2016)………….13
 Prosecutor v. Seromba (ICTR T. Ch., 13 December 2006)………………………………2
 Prosecutor v. Zlatko Aleksovski, IT-95-14/1-T…………………………………….……13
 Prosecutor v. Anto Furundžija (IT-95-17/1) ……………………………………………13
 Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23/1-T (Judgement, 22
February 2001) ……………………………………………………………………………3

iv
 Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A (Appeal Judgement, 12
June 2002)………………………………………………………………………………...3
 Prosecutor v. Kunarac, IT-96-23 & 23/1. ………………………………………………13
 Prosecutor v. Goran Jelisić, Case No. IT-95-10-A…………………………………1, 2, 5
 Prosecutor v. Dusko Tadic, Case No. IT-94-1-T (Judgement, 7 May 1997)…………4, 5
 Prosecutor v. Germain Katanga, ICC-01/04-01/07-717 (Pre-Trial Chamber I, Decision
on the confirmation of charges)…………………………………………………………...6
 Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08…………………………2, 3
 Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of
Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009………………………….6
 Prosecutor v. Blaskic, Case No. IT-95-14-T (Judgement, 3 March 2000)……………….5
 Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11 (January
23, 2012) ………………………………………………………………………………12
 Prosecutor v. Taylor, SCSL-03-01-A (2013) ……………………….….………………12
 Prosecutor v. Kamuhanda, ICTR-99-54A-A (19 September 2005) ….…………………12
 Prosecutor v. Popovic et al, IT-05-88-T (10 June 2010) ………………………………12
 Prosecutor v. Strugar, IT-01-42-A (17 July 2008) ……………………………………12
 Prosecutor v. Galic, IT-98-29-A (30 November 2006) …………………………………12
 Prosecutor v. Kor die and Cerkez, IT-95-14/2-A (17 December 2004) ………………12
 Prosecutor v. Furundzija, IT-95-17/1 (10 December 1998). …………………………..12
Legal Acts and Rules
 Rome Statute, 1998

 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, 1949…………………………………………………….…….3
 Geneva Convention II for the Amelioration of the Condition of the Wounded and Sick
and Shipwrecked Members of Armed Forces at Sea, 1949……….………………………3
 Geneva Convention III relative to the Treatment of Prisoners of War, 1949…………….3

v
 Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War,

1949…….………………………………………………………………………………….3
 United Nations Treaty Series, volume 75………………………………………………..3
 Additional Protocol I to the Geneva Conventions Relating to the Protection of Victims of
International Armed Conflicts, 1977………..……………………………………………3
 Additional Protocol II to the Geneva Conventions Relating to the Protection of Victims
of Non-International Armed Conflicts, 1977………..……………………………………4
 Charter of the United Nations………..……………………………………………………6
 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679…………….11
Dictionaries
1. BA Garner, Black‟s Law Dictionary (7th edn West Group St. Paul, Minn., 1999)…….7
2. Shorter Oxford English Dictionary (5th edn OUP, oxford 2003)………………………2
Other Sources
 Yearbook of International Law Commission, 1996, vol. 2, part 2, 46…………………2

 UNGA Res 37/123D (1982)……………… …………………………………………...…2
 Negotiated Relationship Agreement between the International Criminal Court and the
United Nations, 22 July 2004, ICC-ASP/3/Res.1…………………………………………7
 Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN
Doc. A/RES/25/2625, 121, 124 (24 October 1970)……………………………………………..10
 The Declaration on the Strengthening of International Security, GA Res 2734 (XXV),
UN Doc A/RES/25/2734 (16 December 1970) ……………………………………………..10
 The Declaration on the Enhancement of the Effectiveness of the Principle of Refraining
from the Threat or Use of Force in International Relations, GA Res 42/22, UN Doc
A/RES/42/22 (18 November 1987) …………………..……………………………………..10
 The Preamble of Respect for the Purposes and Principles Contained in the Charter of the
United Nations to Achieve International Cooperation in Promoting and Encouraging
Respect for Human Rights and for Fundamental Freedoms and in Solving International
Problems of a Humanitarian Character, GA Res 55/101, UN Doc A/RES/55/101 (2
March 2001) ……………………………………………..……………………….…………….10

vi
STATEMENT OF JURISDICTION
The Hon’ble International Criminal Court has jurisdiction to try the instant matter under Article
13 (b) of the Rome Statute of International Criminal Court.
Article 13: Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in
accordance with the provisions of this Statute if:
a) A situation in which one or more of such crimes appears to have been committed is
referred to the Prosecutor by a State Party in accordance with article 14;
b) A situation in which one or more of such crimes appears to have been committed is
referred to the Prosecutor by the Security Council acting under Chapter VII of the
Charter of the United Nations; or
c) The Prosecutor has initiated an investigation in respect of such a crime in accordance
with article 15.

vii
STATEMENT OF FACTS
 The Kingdom and Commonwealth of Sømland (herein after referred to as “Sømland”) is

a developed democratic country following the doctrine of laissez faire. Being a
democratic country, the King is only a titular head but exercises influence on the
outcomes of critical issues in the country.
 Sømland was once a principality of the Exalted Empire of the Ecclesiastical and
Confederating Kingdoms of Dragoonia (herein after referred to as “Dragoonia”) and
therefore, both the countries have a shared common history albeit with marked difference
in compositions and populations. In light of a friendly relationship having developed
between the countries in recent times, Dragoonia has removed several trade restrictions
on Sømland inter alia allowing the initiation of 100% FDI in the media and broadcasting
sector.
 SCC is a state run news corporation of Sømland which takes independent decisions,
without any intervention from the government, even though the King is the principal
shareholder. The Chief Executive of SCC, Felocious Von Trapp decided to invest in
Dragoonia through a local incorporated in accordance with the laws of Dragoonia called
DCC. An independent team under Zulfedich Zignoria Haslaf was appointed for the
management of DCC by Mr. Trapp who continued to be the Chief General Editor of
DCC.
 One of the shows produced by DCC was the ‘The Pride of the Masons” highlighted the
creation of Sømland. As the show received great publicity, a web broadcasting channel
having a feature where a three minute video could be uploaded by any user was launched
by the company. Despite receiving a warning from the Loyal Voice and Expression
Regulatory Board (hereinafter referred to as “the Board”), the censorship board of
Dragoonia, regarding the content of the show, the show was continued unabated by the
DCC.
 Valfus Von Transal, a Somian national of Keljuk ethnicity, aired multiple videos calling
for a revolution to break Dragoonia to pieces and became a well-known voice. Mr.
Transal set up the “Government of Keljukistan in Exile” which gave impetus to the

viii
Keljukian sentiment and incidents of violence were seen in the Keljukian majority
fiefdom of Zapahara bordering Dragoonia as well as in Sømland leading to deaths.
 In response to a video uploaded by Transal calling for unification of the Keljuks to end
the imperialism in Dragoonia, a small group of students formed the Keljuk Liberation
Army (KLF) in Dragoonia.
 The Board issued a notice banning the show and the channel was discontinued in
Dragoonia. Additionally, show cause notices were issued to Mr. Haslaf, Mr. Trapp and
SCC for les majaste laws and sedition. The DCC was declared as an anti-national
organization with its license being suspended and the assets being nationalized which was
condemned by Sømland. This led to destruction of diplomatic relations between the
countries.
 KLF grew in numbers and Mr. Transal was suspected to have crossed in to Zapahara by
the Dragoonian Intelligence. KLF was widely considered to be responsible for the
assassination of government officials primarily of Tamaris ethnicity which led to the
Royal Dragoonian Army launching “Operation Ragnarok” in Zapahara. While chasing
Transal and other leaders of KLF, the Dragoonian Troops with other Keljukians broke the
Somian border posts to which the Army of Sømland retaliated by launching operation
“Operation Dead Dragon”.
 As a result, a state of war erupted between both the countries and Sømland was overrun
by Dragoonia and was forced to surrender. The actions of Dragoonia were condemned by
UNSC which caused Dragoonia to withdraw their troops. However, Dragoonia refused to
surrender the King, Mr. Trapp and Mr. Transal, who were now in their custody. As a
result of negotiation, the Dragoonian forces agreed to withdraw and handover the
Government to the Crown Prince who was forced to sign a treaty expressing his consent
to the King, Mr. Trapp and Mr. Transal being handed over to the ICC. In order to pacify
the situation matter was referred to the ICC by the UNSC.

ix
ISSUES RAISED
-I-
WHETHER THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN

THE PRESENT MATTER?
-II-
WHETHER HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED

IMMUNITY FROM PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE?
-III-
WHETHER MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE

GUILTY OF WAR CRIMES, CRIMES AGAINST HUMANITY AND
GENOCIDE?
-IV-
WHETHER MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST

HUMANITY AND A WAR CRIME BY VIRTUE OF HIS SPEECH?

x
SUMMARY OF ARGUMENTS
I. THE ICC DOES NOT HAVE THE POWER TO EXERCISE JURISDICTION

IN THE PRESENT MATTER
To establish jurisdiction of the ICC, four facets are important. (i) jurisdiction ratione
materiae (subject-matter); (ii) jurisdiction ratione termporis (temporal); and (iii)
jurisdiction ratione loci or personae (territorial or personal). Jurisdiction rationae
materiae is the authority of a court to hear cases relating to a specific subject matter.
Lack of subject matter jurisdiction cannot be waived, unlike personal or territorial
jurisdiction. In the present matter, the UNSC, vide its Resolution “Red Resolved”,
referred the matter to the ICC. However, the ICC does not have power to exercise
jurisdiction due to lack of jurisdiction ratione materiae.
II. HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED IMMUNITY

FROM PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE
His Royal Highness of Sømland is the King of Sømland. Sømland is a democratic
country and the King is merely a titular Head. His Royal Highness was not in a
position to control the crimes of genocide, crimes against humanity and war crimes.
His Royal Highness should be granted immunity as: (i) His Royal Highness was not
in a position to control the crimes; (ii) Head of State immunity is a part of customary
international law; (iii) UNSC Referral cannot extend the jurisdiction of the ICC and
(iv)Violation of customary law of treaties.

xi
III. MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE NOT
GUILTY OF WAR CRIMES, CRIMES AGAINST HUMANITY AND
GENOCIDE
The corporate officials in-charge of the affairs of the corporation can not be held
liable for the crimes perpetrated through the corporation unless the elements of
Article 25 and 28 are established. The broadcasting of the videos through the platform
launched by DCC cannot be considered to contribute to the violence that erupted in
Dragoonia as Mr. Trapta operated the same in compliance with the policies of
Sømland and not with the intention to assist the commission of any crimes. The first
condition required to be established in order to make His Royal Highness liable, that
is, the existence of a superior-subordinate relationship does not exist as he does not
exercise any control or authority over the actions of Mr. Trapta. Therefore, Mr.
Trapta and His Highness Royal Highness are not liable by virtue of their role in the
DCC and SCC.
…
IV. MR. TRANSAL IS NOT GUILTY OF GENOCIDE, A CRIME AGAINST
HUMANITY AND A WAR CRIME BY VIRTUE OF HIS SPEECH
The video blogs did not satisfy the three elements of the crime of incitement of
genocide that are the mens rea element, the public element and the directness
element. The video blogs were a mere exercise of his right of freedom of speech and
expression. Transal was only calling for an uprising against imperialism of the
government and not targeting any particular ethnicity. Hence, Transal should not be
prosecuted for the crime of incitement of genocide.

xii
ARGUMENTS ADVANCED
1. WHETHER THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN THE

PRESENT MATTER?
Jurisdiction of the ICC has the following four facets which denote the competence of the ICC
to deal with a matter under the Rome Statute (hereinafter referred to as “the Statute”): (i)
jurisdiction ratione materiae (subject-matter); (ii) jurisdiction ratione termporis (temporal);
and (iii) jurisdiction ratione loci or personae (territorial or personal). In the present matter,
the UNSC, vide its Resolution “Red Resolved”, referred the matter to the ICC. However, the
ICC does not have power to exercise jurisdiction due to lack of jurisdiction ratione materiae.
1.1. The ICC has no jurisdiction ratione materiae in the present matter
Subject matter jurisdiction is the cause, the object in dispute. Subject matter jurisdiction
is the authority of a court to hear cases relating to a specific subject matter. Lack of
subject matter jurisdiction cannot be waived, unlike personal or territorial jurisdiction.
The subject matter jurisdiction of the ICC involves 4 categories of international crimes:
(i) Crime of genocide; (ii) Crimes against humanity; (iii) War crimes; and (iv) Crime of
aggression.
1.1.1. Crime against humanity
In accordance with Article 7(1) and 7(2) (a) of the Statute and the Elements of
Crimes, all crimes against humanity require certain contextual elements to be
satisfied: (i) an attack against the civilian population took place; (ii) such attack was
widespread or systematic; and (iii) such attack was committed pursuant to or in
furtherance of a State or organizational policy to commit such attack.
1.1.1.1. An attack directed against any civilian population
The chapeau of article 7(1) of the Statute defines crimes against humanity as any of
the acts specified therein, when committed as part of an attack "directed against any
civilian population". It has to be demonstrated, to the standard of proof applicable,
that the attack was directed against the civilian population as a whole and not merely

1
against randomly selected individuals.1 The entire civilian population of the

geographical area need not be a target.2 However, the civilian population must be the
primary object of the attack in question and cannot merely be an incidental victim.3
The term "civilian population" refers to persons who are civilians, as opposed to
members of armed forces and other legitimate combatants.4
1.1.1.2. State or Organizational Policy
The attack against any civilian population must be committed "pursuant to or in

furtherance of a State or organizational policy to commit such attack". 5 "Policy to
commit such an attack" requires that the State or organization actively promote or
encourage such an attack against a civilian population. However, in exceptional
circumstances, a policy can be implemented by a deliberate failure to take action,
which is consciously aimed at encouraging such attack. The existence of such a
policy cannot be inferred solely from the absence of governmental or organizational
action. 6
The Statute does not define the terms “policy” or “State or organizational”. However,
the policy requirement was addressed in previous decisions as one ensuring that the
attack even if carried out over a large geographical area or directed against a large
number of victims, must still be thoroughly organised and follow a regular pattern. It
must also be conducted in furtherance of a common policy involving public or private
resources. Such a policy may be made either by groups of persons who govern a
specific territory or by any organisation with the capability to commit a widespread or
systematic attack against a civilian population. The policy need not be explicitly
1
Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the
Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, para. 77. See also ICTY, Prosecutor v.
Stakic, Case No. IT-97-24-T, Judgement, 31 July 2003, para. 627; ICTY, Prosecutor v. Kunarac et al. Case No. IT-
96-23 & IT-96-23/1-A, Appeal Judgement, 12 June 2002, para. 90.
2
Id.
3
Jean-Pierre Bemba Gombo, supra note 1, para. 78; ICTY, Prosecutor v. Kunarac et al. Case No. IT-96-23-T & IT-
96-23/1-T, Judgement, 22 February 2001, para. 425; Article 3 Common to the 1949 Geneva Conventions; Article 4
of the Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, United Nations Treaty
Series, volume 75, p. 135; Articles 43 and 50 of Protocol Additional I to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
4
Statute, Article 7(2)(a).
5
Article 7(2)(a) of the Statute.
6
Footnote number 6, Introduction to crimes against humanity, Elements of Crime.

2
defined by the organisational group. Indeed, an attack which is planned, directed or

organised - as opposed to spontaneous or isolated acts of violence - will satisfy this
criterion.7
Whether a group qualifies as an organization under the Statute has to be decided

taking into account number of considerations, inter alia, (i) whether the group has an
established hierarchy8 (ii) whether the group, in fact, possess the means to carry out a
widespread or systematic attack against a civilian population9 (iii) whether a group
exercises control over part of the territory of a State (iv) whether the group has
criminal activities against the civilian population as a primary purpose 10 (v) whether
the group articulates an intention to attack a civilian population (vi) whether the
group is a part of a larger group, which fulfills some or the other abovementioned
criteria. These considerations do not need to be exhaustively fulfilled.11
1.1.1.3. Widespread or systematic nature of the attack
An act listed under Article 7(1) of the Statute constitutes a crime against humanity
only when committed as a part of a widespread or systematic attack directed against
any civilian population. The rationale behind this contextual element is to “exclude
isolated or random acts of crimes against humanity.”12 Widespread attack has been
defined13 as encompassing the large scale nature of the attack, which should be
massive, frequent, carried out collectively with considerable seriousness and directed
against a multiplicity of victims.14 The element refers to both, large-scale nature of
the attack and the number of resultant victims. Widespread attack may be the
7
Pre-Trial Chamber I, Decision on the confirmation of charges, ICC-01/04-01/07-717, para. 396
8
Article 1(1) of the Protocol II Additional to the Geneva Conventions of 12 August 1949, 8 June 1977.
9
M. Di Filippo, "Terrorist crimes and international co-operation: critical remarks on the definition and inclusion of
terrorism in the category of international crimes", 19 European Journal of International Law 533, 567-568 (2008)
10
P. Burns, "Aspect of Crimes Against Humanity and the International Criminal Court - A paper prepared for the
Symposium on the International Criminal Court, February 3 – 4, 2007; Beijing, China" online, at:
http://www.icclr.law.ubc.ca/Site%20Map/ICC/AspectofCrimesAgainstHumanity.pdf
11
BASSIOUNI CHERIF M., CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW (2nd
edn., 1999).
12
Jean-Pierre Bemba Gombo ; ICTY, Prosecutor v. Tadic, Case No. IT-94-1-T, Judgement, 7 May 1997, para. 648.
13
Shorter Oxford English Dictionary (5th edn OUP, oxford 2003).
14
Id.

3
“cumulative effect of a series of inhumane acts or the singular effect of an inhuman

act of extraordinary magnitude”.15
The term systematic refers to the organised nature of the acts of violence and the
improbability of their random occurrence.16 An attack’s systematic nature can often
be expressed through patterns of crimes, in the sense of non-accidental repetition of
similar criminal conduct on a regular basis.17 The "systematic" element has been
defined by the ICTR as (i) being thoroughly organised, (ii) following a regular
pattern, (iii) on the basis of a common policy, and (iv) involving substantial public or
private resources,18 whilst the ICTY has determined that the element requires (i) a
political objective or plan, (ii) large-scale or continuous commission of crimes which
are linked, (iii) use of significant public or private resources, and (iv) the implication
of high-level political and/or military authorities.19
In order to determine whether an act falls within the scope of Article 7(1) of the
Statute forms part of an attack, the nature, sim and consequences of the act must be
considered. Isolated acts which clearly differ, in their nature, aims and consequences,
from other acts forming part of an attack, would fall outside the scope of article 7(1)
of the Statute.
It can be inferred that the threshold to establish the commission of a crime against
humanity is very high, and the incidents of violence that took place in Dragoonia fail to
satisfy the elements of this crime as none of the incidents amount to a widespread attack
against the civilians under an organizational or State policy.
1.1.2. Crime of genocide

In accordance with Article 6(a) and (b) of the Statute and the Elements of Crimes,
all crimes of genocide require certain elements to be satisfied: (i) killing or causing
of serious bodily harm to one or more person by the perpetrator; (ii) such person or
15
ICTY, Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, Judgment, 17 January 2005, para. 545.
16
Pre-Trial Chamber I, Decision on the confirmation of charges, ICC-01/04-01/07-717, para. 394.
17
Pre-Trial Chamber I, Decision on the confirmation of charges, ICC-01/04-01/07-717, para. 397.
18
ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998, para. 580.
19
ICTY, Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000, para. 203.

4
persons belonged to a particular national, ethnical, racial or religious group; (iii) the
perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or
religious group; and (iv) the conduct took place in the context of a manifest pattern
of similar conduct directed against that group or was conduct that could itself effect
such destruction
In order to determine the threshold to establish intent, a majority of the Chambers of
the ad hoc tribunals resort to terms which imply a volitional standard: the
perpetrator “seeks to achieve” the destruction20 or he must have had the goal of
destroying the group21. The ILC expressed a similar view when it found that “a
general awareness of the probable consequences” of a genocidal act was not
sufficient. It is well accepted that the intended destruction must refer at least to a
“substantial part” of the relevant group.22 However, the determination of
‘substantiality’ causes interpretive problems to the tribunals and commentators. In
international case law, three general methods have been established to evaluate
substantiality: the numerical23, the functional24 and the geographical approaches.25
The Elements of Crime clarify that the ‘group element’ carries significance both for
the objective and the subjective part of the crime. On the objective side, the victim
of the perpetrator’s conduct must belong to a “particular national, ethnical, racial or
religious group”; on the subjective side, the perpetrator must have had the intent “to
destroy, in whole or in part” a group of this kind.26
In order to prove the commission of the crime of genocide in the instant matter there must
be killing or causing of serious bodily harm with the intent to destruct a specified group
which cannot be inferred from the actions of Keljuks. Rather, the actions of the
20
Prosecutor v. Goran Jelisić (Case No. IT-95-10-A).
21
Prosecutor v. Radislav Krstić (Case No. IT-98-33-T).
22
Prosecutor v. Radoslav Brđanin (Case No. IT-99-36-T); YILC, 1996, vol. 2, part 2, 45, para. 8; Prosecutor v.
Radislav Krstić (Case No. IT-98-33-A).
23
(Case No. ICTR-95-1-T), ICTR T. Ch., Judgment, 21 May 1999.
24
Prosecutor v. Radoslav Brđanin (Case No. IT-99-36-T); Prosecutor v. Radislav Krstić (Case No. IT-98-33-A);
Prosecutor v. Zdravko Tolimir (Case No. IT-05-88/2-A); Prosecutor v. Goran Jelisić (Case No. IT-95-10-T);
(Prosecutor v.Zdravko Tolimir (Case No. IT-05-88/2-T).
25
UNGA Res 37/123D (1982); YILC, 1996, vol. 2, part 2, 45, Article 17, para. 8; Prosecutor v. Krstić, ICTY T.
Ch., 19 April 2004; Prosecutor v. Duško Sikirica, Damir Došen, Dragan Kolundžija (Case No. IT-95-8-T).
26
Prosecutor v. Laurent Semanza (Case No. ICTR-97-20-T), ICTR T. Ch., Judgment, 15 May 2003, para. 317;
Prosecutor v. Seromba, ICTR T. Ch., 13 December 2006, para. 318.

5
Dragoonian army in the province of Zapahara where they conducted a crackdown on the
civilian and KLF cardholders Keljuks are capable of being categorized as genocide.
1.1.3. War Crimes

In accordance with Article 8 of the Statute and the Elements of Crimes, all war
crimes require certain contextual elements to be satisfied: (i) existence of an armed
conflict; (ii) existence of any of the offences enumerated in Article 8; and (iii) nexus
between the armed conflict and the alleged offences.
The Elements of Crimes require that the conduct in question takes place in the
context of and was associated with an armed conflict. In this respect, the Chamber
follows the approach of the jurisprudence of the ICTY,27 which requires the conduct
to have been closely related to the hostilities occurring in any part of the territories
controlled by the parties to the conflict. The armed conflict need not be considered
the ultimate reason for the conduct and the conduct need not have taken place in the
midst of battle. Nonetheless, the armed conflict must play a substantial role in the
perpetrator’s decision, in his or her ability to commit the crime or in the manner in
which the conduct was ultimately committed.
In the present matter, the incidents of violence do not constitute an armed conflict of an
international or non-international character which is a pre-requisite for establishment of a
war crime under Article 8 of the Statute. Hence, it is submitted that a war crime has not
been committed in the facts of the present matter.
The existence of jurisdiction rationae materiae is indispensable for the exercise of jurisdiction
by the ICC over any matter. In the present matter, the elements necessary to establish the
commission of the crimes within the jurisdiction of the ICC have not been satisfied and
therefore, it is humbly submitted that the ICC lacks jurisdiction to preside over the present
matter.
27
Prosecutor v. Dusko Tadić, Case No. IT-94-1-A (Appeal Judgement, 2 October 1995); Prosecutor v. Radoslav
Brđanin, Case No. IT-99-36-T (Trial Judgement, 1 September 2004).

6
2. WHETHER HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED

IMMUNITY FROM PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE?
His Royal Highness of Sømland is the King of Sømland. Sømland is a democratic country
and the King is merely a titular Head. His Royal Highness was not in a position to control the
crimes of genocide, crimes against humanity and war crimes. It is the submission of the
counsels for the defense that, His Royal Highness should be granted immunity from
prosecution by virtue of his royal office as: (i) His Royal Highness was not in a position to
control the crimes; (ii) Head of State immunity is a part of customary international law; (iii)
UNSC Referral cannot extend the jurisdiction of the ICC and (iv) Violation of customary law
of treaties.
2.1. His Royal Highness was not in a position to control and restrict these crimes
Sømland is a democratic country.28 A democracy is form of government in which the
sovereign power resides in and is exercised by the whole body of free citizens; as
distinguished from a monarchy, aristocracy, or oligarchy.29 As a democratic country, His
Royal Highness, the King is a mere titular head and a nominal sovereign of Sømland.30
2.2. Head of State immunity is a part of customary international law

It is well established principle of Public International Law that customary law prevents
the exercise of criminal jurisdiction by States against Heads of other States. There are
three key aspects to head of State immunity. (i) It is a rule of customary international
law; (ii) There are important reasons to distinguish the immunities of sitting heads of
State from other types of immunities; (iii) The immunity may be waived by the State that
holds it even if the individual is currently holding the office of head of State.
In international law it is firmly established that certain holders of high-ranking office in
a State, such as the Head of State, Head of Government and Minister for Foreign Affairs,
enjoy immunities from jurisdiction in other States, both civil and criminal. This
immunity and inviolability protect the individual concerned against any act of authority
of another State which would hinder him/her in the performance of his/her duties. Even
28
Moot proposition, ¶ 1.
29
Blacks Law Dictionary.
30
Moot proposition, ¶ 1.

7
if the Head of the State is alleged to have committed war crimes or crimes against
humanity, in the absence of any customary international law, any form of exception to
the rule according immunity from criminal jurisdiction and inviolability is generally not
allowed.
It has to be taken into consideration that, while referring to the provisions in article 27,
they can be made applicable only to State parties to the statute, unless those enshrined
principles correctly reflect customary international law. Although the ICC is entitled to
exercise jurisdiction over nationals of states not party to its Statute,31 nothing in the ICC
Statute can operate to remove the immunities that officials of non-parties would
ordinarily possess under international law.
Under customary international law, the person of the head of state is regarded as
inviolable32 when abroad and immunity from criminal jurisdiction includes immunity
from arrest.33 Immunity accorded to a serving head of state, ratione personae, from
foreign domestic criminal jurisdiction (and from arrest) is absolute and applies even
when he is accused of committing an international crime.34
Even if it is accepted that the Security Council referral and the framework of the ICC
Statute brought into effect for all states by the referral confers a right on all state to
ignore international law immunities, this right can only be acted on if it can be shown
that the right prevails over the obligations which states have under customary
international law to accord immunity. There must be a basis to prefer the Security
Council determination implicit in the referral over the obligations to accord immunity.
2.3. UNSC cannot extend the ICC’s jurisdiction

Neither Chapter VII nor Article 103 of the Charter allows the UNSC to extend the
jurisdiction of the Court.35 The ICC is not able to exercise any Chapter VII powers
31
ICC Statute, Art. 12(2) (a)
32
H. Fox, The Law of State Immunity (2nd edn., Oxford: OUP, 2008), 667.
33
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), 2008 ICJ Reports, § 170: 'A
Head of State enjoys in particular "full immunity from criminal jurisdiction and inviolability" which protects him or
her "against any act of authority of another State which would hinder him or her in the performance of his or her
duties"', quoting from Arrest Warrant Case (Democratic Republic of Congo v. Belgium), 2002 ICJ Reports, at 22, §
54.
34
Arrest Warrant Case (Democratic Republic of Congo v. Belgium), 2002 ICJ Reports, at 22
35
Luigi Condorelli and Santiago Villalpando, Can the Security Council Extend the ICC's Jurisdiction, The Rome
Statute of the International Criminal Court: A Commentary (2002), 572.

8
because it is not part of the UN, and the Security Council itself does not have the
authority to revise the rules of public international law.
Arguendo, the Security Council has the power to remove immunities, this does not
necessarily mean that power may be delegated to the ICC. Assigning a discretionary
decision-making power to a tribunal requires that the tribunal is actually competent to
receive the Chapter VII power in the first place.36 According to the UN Charter,
competent entities are: UN member States; “regional arrangements” as contemplated by
Article 51 of the Charter; and organs of the UN itself. The ICC does not fall into any of
these categories.
The Preamble and Article 2 of the UN-ICC Agreement similarly recognize the
independence of the Court from the UN system.37 Unlike the ICTY, ICTR and the
SCSL, the ICC is governed entirely by its Assembly of States Parties. While judicially
independent, the ICTY and ICTR are able to exercise Chapter VII authority because they
are organs of the UN that have been established by the Security Council and delegated
such authority.
The UN Charter only takes precedence over other international treaties,49 not customary
international law rules such as head of State immunity or the laws governing treaties. In
this case, those customary rules defeat the argument that the UN referral can negate His
Royal Highness’s immunity. Hence, it cannot be said that because of Sømland’s
membership in the UN, its concomitant consent to the priority of the UN via Article 103
of the Charter, and the mandatory nature of Chapter VII resolutions, there will be no
immunity.
The drafting history of Article 103 shows that, after considerable debate about whether
the Charter should be supreme over all international law, the drafters made a deliberate
choice to specify “international agreements” instead of “all international obligations”,
elevating the Charter only above treaties and other international agreements.38 This was
36
Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN
Security Council of its Chapter VII Powers (2000), 247.
37
Negotiated Relationship Between the International Criminal Court and the United Nations, ICC—UN, ICC-
ASP/3/Res.1 (4 October 2004).
38
Report of the Rapporteur of Committee IV/2, as approved by the Committee, “Privileges and Immunities” in:
Documents of the United Nations Conference on International Organization (1945) Vol. XIII, 707.

9
affirmed by the General Assembly in the Declaration on Friendly Relations,39 which

distinguished between “obligations under the generally recognized principles and rules
of international law” and “obligations under international agreements valid under the
generally recognized principles and rules of international law”, and clearly stated only
the latter were superseded by the Charter.40 This understanding has appeared in
numerous declarations by the General Assembly41 without contradiction.
If the Charter only has primacy over international agreements and not customary
international law, then Member States are not obliged to comply with all directions that
emanate from the UN. Any Security Council directive to violate a principle of customary
international law is ultra vires, because any obligation to comply “is conditional upon
the Council's compliance with the Charter principles: Article 103 cannot make a
resolution which is unlawful under the Charter prevail over other legal norms”.42 This
point was repeated by the ICJ in the Lockerbie case43 and reinforced by other
commentators. In other words, UN Member States are bound to comply with Security
Council resolutions under Chapter VII, but only when those decisions themselves do not
breach the boundaries of UN competence—such as norms of customary international
law.
2.4. Violative of customary law of treaties

Resolution “Red Resolved” violates customary international law, and therefore ultra
vires, either through its effects on the customary international law of immunities, or
through its effects on treaty law. As a treaty-based organization, the UN is bound by the
39
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN Doc. A/RES/25/2625, 121, 124 (24
October 1970).
40
Id.
41
The Declaration on the Strengthening of International Security, GA Res 2734 (XXV), UN Doc A/RES/25/2734
(16 December 1970), para.3; the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining
from the Threat or Use of Force in International Relations, GA Res 42/22, UN Doc A/RES/42/22 (18 November
1987) para.4; and the Preamble of Respect for the Purposes and Principles Contained in the Charter of the United
Nations to Achieve International Cooperation in Promoting and Encouraging Respect for Human Rights and for
Fundamental Freedoms and in Solving International Problems of a Humanitarian Character, GA Res 55/101, UN
Doc A/RES/55/101 (2 March 2001).
42
Aleksander Orakhelashvili, The Impact of Peremptory Norms on the Interpretation and Application of United
Nations Security Council Resolutions, 16 EJIL (2005), 55, 69.
43
Christian Tomuschat, The Lockerbie Case Before the International Court of Justice, 48 Rev Int'l Comm Jurists
(1992), 38, 43–44

10
law of treaties: it is restricted by the terms of the UN Charter, as well as the codified and
customary international law rules of treaties. Those basic rules prevent the Security
Council, the ICC and any other international organization or group of States, from
extending the jurisdiction of the Court or binding a non-State Party to any treaty without
that State's consent. Depending on one's reading of the Rome Statute, these rules either
completely preclude Security Council referrals of any non-State Party, or limit the ICC's
powers in such cases.
2.4.1. It is violative of the VCLT
The foundational principle at issue is that of pacta tertiis nec nocent nec prosunt—
treaties neither create obligations upon nor grant rights to third parties. This
customary international law rule is codified in Article 34 of the Vienna Convention
of the Law of Treaties.44 Article 35 of that convention adds that obligations only
arise for third party States if those States expressly accept the obligation.63 Articles
39 and 40 specify that only parties to a treaty may amend it, and only after
consultation with other parties.
Thus, it is respectfully submitted by the counsels for the defence that His Royal Highness should
be protected by the Head of State immunity as head of state immunity is an established part of
customary international law and that the ICC can only have jurisdiction over him if the UNSC
referral overrides customary international law rules of treaties and immunities, which is not
fulfilled in the present matter.
3. MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE NOT GUILTY
OF WAR CRIMES, CRIMES AGAINST HUMANITY AND GENOCIDE
Article 25(1) provides that the ICC has jurisdiction over natural persons, which is an indirect
way of clarifying that the Court does not have jurisdiction over corporate bodies. Therefore,
DCC or SCC cannot be held liable for the crimes perpetrated through the show and the web
broadcasting channel. The corporate officials in-charge of the affairs of the corporation can
not be held liable for the crimes perpetrated through the corporation unless the elements of
44
Vienna Convention on the Law of Treaties (VCLT), 1155 UNTS 331, 8 ILM 679.

11
Article 25 and 28 are established.45 Therefore, Mr. Trapta and His Highness Royal Highness
are not liable by virtue of their role in the DCC and SCC.
3.1. Mr. Trapta is not guilty of the crimes alleged under the Statute
Mr. Trapta has not aided the commission of crimes under the Statute by broadcasting
the show, “The Pride of the Masons” and by launching the web broadcasting channel
through SCC. Attribution of criminal responsibility to Mr. Trapta under article 25(3)(c)
of the Statute requires the fulfillment of the following elements: (i) contribution, in terms
of aiding, must meet a qualitative and quantitative threshold; and (ii) act of complicity is
for the purpose of facilitating the commission of the crime.
3.1.1. Contribution, in terms of aiding, must meet a qualitative and quantitative
threshold
While there is little jurisprudence at this time interpreting articles 25(3)(c) of the
Statute, the application of analogous modes of liability at the ad hoc tribunals
suggests that a substantial contribution to the crime may be contemplated.46 As held
by Pre-Trial Chamber I in a different case, “in essence, what is required for this
form of responsibility is that the person provides assistance to the commission of a
crime and that, in engaging in this conduct, he or she intends to facilitate the
commission of the crime”.47 Endorsing the views of the International Law
Commission, a Trial Chamber of the International Criminal Tribuanl for the former
Yugoslavia said that while the latter provided no definition of ‘substantially’, the
case law requires a contribution that in fact has an effect on the commission of the
crime.48
45
The Zyklon B. Case (1946); Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11
(January 23, 2012); Prosecutor v. Taylor, SCSL-03-01-A (2013); David Scheffer, Corporate Liability under Rome
Statute, 57 Harvard International Law Journal 35 (2016); Harmen van der Wilt, Corporate Criminal Responsibility
for International Crimes: Exploring the Possibilities, 12 Chinese J. Int'l L. 43 (2013); Nadia Bernaz, Corporate
Criminal Liability under International Law, 13 Journal of Internal Criminal Justice 313 (2015); Julia Graff,
Corporate War Criminals and International Criminal Court: Blood and Profits in the Democratic Republic of
Congo, 11 Human Rights Brief 23, 25 (2004).
46
Prosecutor v. Kamuhanda, ICTR-99-54A-A (19 September 2005); Prosecutor v. Popovic et al, IT-05-88-T (10
June 2010); Prosecutor v. Strugar, IT-01-42-A (17 July 2008); Prosecutor v. Galic, IT-98-29-A (30 November
2006) Prosecutor v. Kor die and Cerkez, IT-95-14/2-A (17 December 2004; Prosecutor v. Furundzija, IT-95-17/1
(10 December 1998).
47
Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15 (24 March 2016).
48
Prosecutor v. Dusco Tadic, IT-94-1-T (May 7, 1997).

12
3.1.2. Act of complicity is for the purpose of facilitating the commission of the
crime
The mental element in support of this mode of liability rests on the accessory’s
knowledge that his actions assist the principal in the commission of the crime.49 The
principal does not need to be aware of the involvement of the aider. 50 It must be
shown that the aider was aware of the essential constitutive elements of the crime
that was ultimately committed by the principal”.51 However, the aider does not need
to know about the precise crime intended by the principal offender. If he is aware
that one of a number of crimes will probably be committed by the principal
offender, and one of those crimes is in fact committed, then he has intended to assist
or facilitate the commission of that crime, and may be found guilty of “aiding and
abetting”.52
In the present matter, Felocious von Trapta was the effective and principal force behind
the operations of the SCC. The DCC organized its own team though substantial guidance
and inputs, especially editorial and content checks which kept on coming from Sømland.
Mr. Trapta who originally also served as the interim in-charge of the project thereafter
appointed an independent team in Dragoonia under Zulfedich Zignoria Haslaf, a national
of Dragoonia. Therefore, it can be inferred that DCC was run independently by Mr.
Haslaf. Also, the content of the web broadcasting channel was not censored in
accordance with Sømland’s least interventionist policies in commercial matters and the
doctrine of laissez-faire which was essential to the country’s economic jurisprudence
and general belief of the country that all kinds of opinions must be accommodated and
aired. Hence, the broadcasting of the videos through the platform launched by SCC
cannot be considered to contribute to the violence that erupted in Dragoonia as Mr.
Trapta operated the same in compliance with the policies of Sømland and not with the
intention to assist the commission of any crimes.
49
Prosecutor v. Anto Furundžija (IT-95-17/1); Prosecutor v. Alfred Musema, ICTR-96-13-A; Prosecutor v.
Kunarac, IT-96-23 & 23/1.
50
Prosecutor v. Dusco Tadic, IT-94-1-T (May 7, 1997).
51
Prosecutor v. Zlatko Aleksovski, IT-95-14/1-T
52
Prosecutor v. Tihomir Blaskic, IT-95-14; Prosecutor v. Blagoje Simic, IT-95-9-T.

13
3.2. His Royal Highness is liable for the crimes alleged under the Statute
His Royal Highness is liable by virtue of the existence of the superios-subordinate
relationship between him and Mr. Trapta who is liable for the crimes alleged. In order to
establish the liability of His Royal Highness the following elements are required to be
established: (i) existence of a superior-subordinate relationship; (ii) knowledge of the
commission of the crime; and (iii) failure to prevent or punish.
3.2.1. Existence of a superior-subordinate relationship
The first step in the assessment of the existence of a superior–subordinate
relationship, is determining the status of the superior. Secondly, the “principal
crime” has to be identified and evaluated. Thirdly, the status of the subordinate as
well as his or her relation to the “principal crime” has to be assessed. The forth
aspect to consider is the requirements placed on the relationship as such. Finally, the
link between the superior, subordinate and the “principal crime” needs to be tied
together through a causality test.
3.2.2. Knowledge of the commission of the crime
Article 28(b)(i) establishes that the commander either knew or consciously
disregarded information which clearly indicated the commission of the crime. The
“consciously disregarding information which clearly indicated” requirement in
Article 28(b)(i), does however entail a much higher mens rea standard than what is
provided for the doctrine of command responsibility. This new standard has, for
example, been equated to “wilful blindness”, that is, that the superior is aware of a
high probability of the existence of a fact and, yet, he/she decides to “turn a blind
eye” to this fact. As such, it has furthermore been explained that this new criterion
stands somewhere between “actual knowledge” and “recklessness”.
3.2.3. Failure to prevent or punish
The corrective measures available to the commander, are both dependent on his or
her de jure and the de facto position of the superior to control his or her
subordinates. The measures need to be commensurate to the superior’s actual
possession of command and control or authority and control. It is hence difficult to
generalise about which measures are necessary and reasonable.

14
In spite of being a State Broadcasting Corporation most of the decisions in terms of functioning
and administration of the company are independent and without any active governmental or any
other agency’s interference. Therefore, the first condition required to be established in order to
make His Royal Highness liable, that is, the existence of a superior-subordinate relationship does
not exist as he does not exercise any control or authority over the actions of Mr. Trapta. Hence, it
is submitted that His Royal Highness is not liable in his capacity as the primary shareholder of
DCC and SCC.
4. WHETHER MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST

HUMANITY AND A WAR CRIME BY VIRTUE OF HIS SPEECH?
Genocide clearly falls within the category of crimes so serious that direct and public
incitement to commit such a crime must be punished as such, even where such incitement
failed to produce the result expected by the perpetrator.53
Three important dimensions to the crime of incitement to genocide: the mens rea element, the
“public” element, and the “directness” element. Hateful speech not satisfying these elements,
though potentially heinous and inflammatory, is not considered illegal under international
law.
The mens rea element of the crime immediately distinguishes it from protected speech.
Indeed, the mental component of incitement to genocide alone suffices to ensure that
legitimate expression will not be caught by the prohibition.
The mens rea required for the crime of direct and public incitement to commit genocide lies
in the intent to directly prompt or provoke another to commit genocide. It implies a desire on
the part of the perpetrator to create by his actions a particular state of mind necessary to
commit such a crime in the minds of the person(s) he is so engaging. That is to say that the
person who is inciting to commit genocide must have himself the specific intent to commit
genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such.54
“Public” refers to any comments spoken in a public place, as well as the International Law
Commission characterization of “public incitement” as occurring where there is “a call for
53
Prosecutor v. Akayesu, Case no. ICTR-96-4-T, Judgment (Trial Chamber), 2 September 1998, at para. 562.
54
Id., at para. 560.

15
criminal action to a number of individuals in a public place or to members of the general

public at large by such means as the mass media, for example, radio or television.”55
Finally, the “directness” element is satisfied where the incitement “specifically provokes
another”, as contrasted with “mere vague or indirect suggestion.”56 The incitement must be
viewed “in the light of its cultural and linguistic content,” and that it would determine this
question by “focusing mainly on the issue of whether the persons for whom the message was
intended immediately grasped the implication thereof.”
Later case law also stressed the need to understand the impugned comments in context in
order to determine whether they constitute “incitement” or not. The ICTR has explained that
context alone can define the line between hateful rhetoric and illegal incitement:
A statement of ethnic generalization provoking resentment against members of that ethnicity
would have a heightened impact in the context of a genocidal environment. It would be more
likely to lead to violence. At the same time the environment would be an indicator that
incitement to violence was the intent of the statement.57
There are four specific elements useful in analysing allegedly inciteful content: purpose, text,
context, and the relation of the speaker to the subject.58
With regard to purpose, the determining factor is whether the intent “in publicly transmitting
the material was of a bona fide nature (e.g. historical research, the dissemination of news and
information, the public accountability of government authorities).”59 For instance, a case law
to the effect that when an interviewer takes care to distance himself from the remarks of his
interview subject, it operates as an indicator that the purpose in question was to disseminate
news rather than to propagate racist views.60
55
Id., at para. 556.
56
Id., at para. 557.
57
Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case no. ICTR-99-62, Judgment and Sentence, 3 December
2003 (the “Media Case”), at para.1022. The Appeals Chamber affirmed the importance of context in evaluating
incitement in its judgment in the same case on 28 November 2007, at paras. 697, 701 and 703.
58
Gregory Gordon, “From Incitement to Indictment?: Prosecuting Iran’s President for Advocating Israel’s
Destruction and Piecing Together Incitement Law’s Emerging Analytical Framework,” (2008) 98:3 Journal of
Criminal Law & Criminology 853, at 874-878.
59
incitement in its judgment in the same case on 28 November 2007, at para. 1001.
60
Ibid. The case being referenced by the Trial Chamber is the Jersild case, decided by the European Court of Human
Rights: Jersild v. Denmark, 19 Eur. Ct. H. R. 1, 27 (1995).

16
The Faurisson case,61 a decision involving a Holocaust denier in which the United Nations
Human Rights Committee considered the meaning of the term “incitement” at Article 20(2)
of the International Covenant on Civil and Political Rights. The Committee focused on the
use of the term “magic gas chamber” in determining that Faurisson was motivated by anti-
Semitism and not the pursuit of historical trust.62
Examination of context involves analysis of how such language is used in the immediate as
well as the historical context, operating to shed light on the words uttered. The European
Court of Human Rights emphasizing how a general statement about massacres needs to be
understood in the context of the massacres taking place at that time. The European Court’s
statement that, understood as such, the speaker’s words were “likely to exacerbate an already
explosive situation……”63
The fourth factor – the relationship of the speaker to the subject – is based on the fact that
“special protections” have been developed in jurisprudence to take into account “the power
dynamic inherent in the circumstances that make minority groups and political opposition
vulnerable to the exercise of power by the majority or by the government.”64 The relevant
issue is not whether the author of the speech is from the majority ethnic group or supports the
government’s agenda (and by implication, whether it is necessary to apply a stricter
standard), but rather whether the speech in question constitutes direct incitement to commit
genocide. On the other hand, the political or community affiliation of the author of a speech
may be regarded as a contextual element which can assist in its interpretation.”65
The Bikindi decision66 also raised explicitly a tension that underlies many judgments on
incitement to genocide: the appropriate balance between freedom of expression and the
criminalization of genocidal incitement. Recognizing the right to freedom of expression, the
61
Faurisson v. France, CCPR/C/58/D/1993 (1996).
62
63
Ibid., at para. 1004. The case being referenced by the Trial Chamber is the Zana case: Zana v. Turkey, ECHR,
1997-VII, no. 57.
64
incitement in its judgment in the same case on 28 November 2007, at para. 1008..
65
66
Prosecutor v. Bikindi, Case no. ICTR-01-72-T, Judgment (Trial Chambers), 2 December 2008 [Bikindi], at

17
Trial Chamber explained: However, this right is not absolute. It is restricted by the very same
conventions and international instruments that provide for it. For example, the Universal
Declaration of Human Rights states that everyone should be free from incitement to
discrimination. Similarly, the International Covenant on Civil and Political Rights prohibits
war propaganda, as well as the advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility, or violence, and the International Convention on the
Elimination of All Forms of Racial Discrimination aims to outlaw all forms of expression
that explicitly lead to discrimination. Each of the regional conventions mentioned above also
restrict the freedom of expression: the European Convention on Human Rights recognises
that there are “duties and responsibilities” that accompany the freedom of expression and
thus limit its application; the American Convention on Human Rights allows for legal
liability regarding acts that harm the rights or reputations of others, or that threaten the
protection of national security, public order, or public health or moral and considers as
offences punishable by law any propaganda for war and advocacy of national, racial or
religious hatred that constitute incitements to lawless violence; and the African Charter on
Human and People’s Rights restricts the right to that which is “within the law”. The Chamber
notes that the restrictions on this right have been interpreted in the jurisprudence of the
various adjudicating bodies created from the international and regional instruments above.
The Chamber also notes that a large number of countries have banned the advocacy of
discriminatory hate in their domestic legislation.
The words that are used by Transal are mere words expressing his discontent towards the
existing imperialism and not targeted to eliminate or target a particular ethnicity. In none of
his video blogs has Transal made a mention of a particular ethnicity of urged the people to
conduct violent demonstrations against them. Let us examine each video of Transal in detail.
The first video on 2nd November, 2013, merely describes the events that took place in the
past based on accurate historical data that was broadcasted on the show “The Pride of
Masons”. In the video Transal expresses his opinion on the bravery of the Masons and he
personally feels that the nation needs to rise against the imperialism. In the subsequent videos
as well, Transal used the words imperialism multiple times, which shows that he just
intended to rise against the Government and that he was dissatisfied with it.

18
These expressions of dissatisfaction with the government should not be prohibited as that
would constitute a violation of the right to freedom of expression of transal. This right to
freedom of expression has been guaranteed under various international instruments as stated
above. As the words of transal do not fulfil the elements of incitement of genocide, it does
not fall within the exceptions to right to freedom of speech and thus should not be prohibited.

19
SUBMISSIONS TO THE COURT
Wherefore, in the light of the issues presented, arguments advanced and authorities cited, the
counsels on behalf of the Defense request this Hon’ble Trial Chamber of the ICC to find,
adjudge and declare that:
I. The ICC does not have the power to exercise jurisdiction in the present matter;
II. His Royal Highness of Sømland can be granted immunity from prosecution by virtue
of his Royal Office;
III. Mr. Trapta and His Royal Highness of Sømland are not guilty of War Crimes, Crimes
Against Humanity and Genocide;
IV. Mr. Transal is not guilty of Genocide, a Crime against Humanity and a War Crime by
virtue of his speech.
All of which is respectfully submitted
Sd/-
Counsels for the Defense

20

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6TH RMLNLU SCC ONLINE INTERNATIONAL MEDIA LAW MOOT 2018

TEAM CODE: T-32

THE INTERNATIONAL CRIMINAL COURT

AT THE HAGUE, NETHERLANDS

BEFORE THE TRIAL CHAMBER

“THE CASE CONCERNING THE RED BROADCASTS”

(Under Article 13(b) of the Rome Stature)

PROSECUTOR …….. Prosecution

HIS ROYAL HIGHNESS,

MEMORIAL FOR THE PROSECUTION

6TH RMLNLU SCC ONLINE INTERNATIONAL MEDIA LAW MOOT,

MEMORANDUM ON BEHALF OF THE DEFENSE

C. INDEX OF AUTHORITIES…………………………………………………………………… iii

D. STATEMENT OF JURISDICTION…………………………………………………………... vii

E. STATEMENT OF FACTS……………………………………………………………………... viii

2. HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED IMMUNITY FROM 7

PROSECUTION BY VIRTUE OF HIS ROYAL OFFICE

WAR CRIMES, CRIMES AGAINST HUMANITY AND GENOCIDE

4. MR. TRANSAL IS NOT GUILTY OF GENOCIDE, A CRIME AGAINST HUMANITY 15

AND A WAR CRIME BY VIRTUE OF HIS SPEECH

I. SUBMISSIONS TO THE COURT 20

MEMORANDUM ON BEHALF OF THE DEFENSE

MEMORANDUM ON BEHALF OF THE DEFENSE

Books and Articles

 M. Di Filippo, "Terrorist crimes and international co-operation: critical remarks on the

MEMORANDUM ON BEHALF OF THE DEFENSE

 Prosecutor v. Stakic, Case No. IT-97-24-T (Judgement, 31 July 2003)…………………..3

 Prosecutor v. Blagoje Simic, IT-95-9-T. ………………………………………..………13

MEMORANDUM ON BEHALF OF THE DEFENSE

 Prosecutor v. Furundzija, IT-95-17/1 (10 December 1998). …………………………..12

Legal Acts and Rules

 Rome Statute, 1998

MEMORANDUM ON BEHALF OF THE DEFENSE

 Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War,

 Yearbook of International Law Commission, 1996, vol. 2, part 2, 46…………………2

MEMORANDUM ON BEHALF OF THE DEFENSE

Article 13: Exercise of jurisdiction

MEMORANDUM ON BEHALF OF THE DEFENSE

 The Kingdom and Commonwealth of Sømland (herein after referred to as “Sømland”) is

MEMORANDUM ON BEHALF OF THE DEFENSE

MEMORANDUM ON BEHALF OF THE DEFENSE

WHETHER THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN

WHETHER HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED

WHETHER MR. TRAPTA AND HIS ROYAL HIGHNESS OF SØMLAND ARE

WHETHER MR. TRANSAL IS GUILTY OF GENOCIDE, A CRIME AGAINST

MEMORANDUM ON BEHALF OF THE DEFENSE

I. THE ICC DOES NOT HAVE THE POWER TO EXERCISE JURISDICTION

II. HIS ROYAL HIGHNESS OF SØMLAND CAN BE GRANTED IMMUNITY

MEMORANDUM ON BEHALF OF THE DEFENSE

MEMORANDUM ON BEHALF OF THE DEFENSE

1. WHETHER THE ICC HAS THE POWER TO EXERCISE JURISDICTION IN THE

MEMORANDUM ON BEHALF OF THE DEFENSE

against randomly selected individuals.1 The entire civilian population of the

1.1.1.2. State or Organizational Policy

The attack against any civilian population must be committed "pursuant to or in

MEMORANDUM ON BEHALF OF THE DEFENSE

defined by the organisational group. Indeed, an attack which is planned, directed or

Whether a group qualifies as an organization under the Statute has to be decided

1.1.1.3. Widespread or systematic nature of the attack

MEMORANDUM ON BEHALF OF THE DEFENSE

“cumulative effect of a series of inhumane acts or the singular effect of an inhuman

1.1.2. Crime of genocide

MEMORANDUM ON BEHALF OF THE DEFENSE

MEMORANDUM ON BEHALF OF THE DEFENSE