SEVENTH SYMBIOSIS LAW SCHOOL,

PUNE - INTERNATIONAL CRIMINAL

TRIAL ADVOCACY COMPETITION
[SICTA- 2022]

APRIL 21, 2022 – APRIL 24, 2022

PREVIOUS YEARS’ BEST MEMORIAL

 INDEX

1. Memorial on Behalf of the Defense .......................................................................... 3

2. Memorial on Behalf of the Prosecution ............................................................................. 44

3. Memorial on Behalf of the Victim ............................................................................. 91

 SLS_07_D

SIXTH SYMBIOSIS LAW SCHOOL, PUNE – INTERNATIONAL CRIMINAL TRIAL

ADVOCACY, 2021

Before

Trial Chamber I, International Criminal Court

The Hague, The Netherlands

THE PROSECUTOR PROSECUTION

V.

UMBERTO ECO DEFENSE

DEFENDANT CHARGED WITH

Crime against Humanity of Murder under Article 7(1)(A) of the Rome Statute

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENSE

Word Count: 5902

 Original: English No.: ICC-09/03-21/10

Date: [April 23, 2021]

TRIAL CHAMBER I

Before: Judge , the Presiding Judge

Judge , and

Judge ,

SITUATION IN THE REPUBLIC OF TITAN

IN THE CASE OF

THE PROSECUTOR v. UMBERTO ECO

PUBLIC

Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Umberto Eco

P a ge | i Source: Office of the Prosecutor

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TABLE OF CONTENTS

TABLE OF CONTENTS II

LIST OF ABBREVIATIONS IV

INDEX OF AUTHORITIES VII

STATEMENT OF FACTS XII

ISSUES PRES ENTED XVI

SUMMARY OF ARGUMENTS XVII

PLEADINGS 1

I. The Accused Umberto Eco has not committed the acts of Crime Against Humanity
of Murder Under Article 7 of the Rome Statute _1
1. Contextual elements of CAH, as stated in the Chapeau of Elements of Crime, Article 7
have not been fulfilled 1
i. There was no attack. 1
ii. The attack was not widespread or systematic. 2
iii. The attack was not directed against any civilian population. 4
iv. The Acts of the Accused were not a part of the Attack. 5
v. The Accused did not know his acts constitute part of a widespread or systematic
attack directed against any civilian population. 6
vi. The Accused did not kill/ cause death of any person 6
2. The Acts of the Accused fall within the Exceptions to Criminal Liability as Stipulated
Under Article 31 of the Rome Statute 7
i. That the Accused acted under Duress 7
ii. The accused acted necessarily and reasonably to avoid the threat. 9
iii. The accused did not intend to cause greater harm than was sought to be avoided. _ 9
iv. That the Accused acted under superior orders and prescription of law. 10
i. The Accused did not know that the order was unlawful 12
ii. The order was not manifestly unlawful 12

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3. The Specific Elements of Crime as Stipulated under Article 30 of the Rome Statute are
not fulfilled in the Instant Case 13
a. Intent 13
b. Knowledge 14

II. That the Accused Umberto Eco is Not Liable Under Article 25 of the Rome
Statute15
1. That the Accused is not liable under Article 25(3)(a) for Co-Perpetration in the said
crime 15
i. There is no common plan that can be derived from the facts presented 15
ii. The acts of the accused do not form essential contribution 16
2. That the Accused is not liable under Article 25(3)(b) for ordering, soliciting or
inducing the said crime 17
3. That the Accused is not liable under Article 25 (3) (c) for assistance in the said crime
18
4. That the accused is not liable under Article 25 (3)(d) for contributing to the
commission of a crime or an attempted crime by a group 19
i. Furthering the criminal activity of the group or its common purpose: Error!
Bookmark not defined.
ii. He or she must be aware of the group’s intent to commit a (specific) crime under
international law: Error! Bookmark not defined.
5. Article 25 (3)(e) is not relevant in the instant case as it deals with the crimes relating to
genocide Error! Bookmark not defined.
6. That the accused is not liable under Article 25 (3)(f) for attempt and abandonment _ 21

III. Presumption of Innocence 22

1. Reasonable Doubt Error! Bookmark not defined.
i. Substantial Grounds Error! Bookmark not defined.

Prayer 23

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¶ Paragraph

AC Appeals Chamber

Art. Article

Doc Document

ECCC Extraordinary Chambers in the Courts of Cambodia

ECtHR European Court of Human Rights

ETS European Treaty Series

HRC Human Rights Committee

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICESOC International Convention on Economic, Social and Cultural Rights

ICJ International Court of Justice

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

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Id. Idem

IT International Tribunal

LRV Legal Representatives of Victims

OHCHR United Nations Office of High Commissioner of Human Rights

OTP Office of the Prosecutor

PCIJ Permanent Court of International Justice

PTC Pre-Trial Chamber

ROEP Rules of Evidence and Procedure

RTC Regulations of the Court

RTP Regulations of the Office of The Prosecutor

SCD Special Committee on the Study of Demographics in Xuan

TC Trial Chamber

U.N.T.S. United Nations Treaty Series

UF United Front

UKHL United Kingdom House of Lords

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UNCLOS United Nations Convention on the Law of Sea

UNGA United Nations General Assembly

UNODC United Nations Office on Drugs and Crime

UNSC United Nations Security Council

US United States

v. Versus

VCLT Vienna Convention on the Law of Treaties

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INDEX OF AUTHORITIES

ICC Cases

1. Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09 OA2, Judgment in the Jordan

Referral re Al- Bashir Appeal, ¶81 (May. 6, 2019) 3, 5

2. Prosecutor v. Bemba, Case No. ICC-01/05-01/08-424, Decision Pursuant to Article

61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-
Pierre Bemba Gombo, ¶81 (Jun. 15, 2009) 1, 4, 6

3. Prosecutor v. Ble´ Goude´, Case No. ICC-02/11-02/11-186, Confirmation Decision, ¶

146 (Dec. 11, 2014) 2

4. Prosecutor v. Gbagbo, Case No. ICC-02/11-01/11-656-Red, Decision on the

Confirmation of Charges, ¶209 (Jun. 12, 2014) 1, 2, 3

5. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07,
Decision on the confirmation of charges, ¶397 (Sep. 30, 2008) 3

6. Prosecutor v. Harun and Kushayb, Case No. ICC-02/05- 01/07-1-Corr, Decision on the
Prosecution Application, ¶62 (Apr 27, 2007) 3

7. Prosecutor v. Jean-Pierre Gombo, ICC-01/05-01/08, Decision pursuant to Article 61(7)(a)

of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bembe Gobo,
¶363 (Jun. 15, 2009) 14

8. Prosecutor v. Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, Decision on the

Confirmation of Charges, 29 January 2007, ¶ 351. 14

9. Prosecutor v. Marko Samardžija, Case No. X-KRZ-05/07, 2nd Instance Verdict, ¶14
(Court of BiH. Oct. 15, 2008) 2

10. Prosecutor v. Momir Savić, Case No. X-KR-07/478, 1st Instance Verdict, ¶30 (Court of
BiH. Jul. 3, 2009) 2

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ICTY Cases

11. Prosecutor v. Blaškić, Case no. IT-95-14-T, Trial Judgment, ¶203 (Int’l Crim. Trib. for
the Former Yugoslavia Mar. 3, 2000) 2, 3, 4

12. Prosecutor v. Galic´, Case No. IT 98-29-A, Appeal Judgment, ¶144, ( Int’l Crim. Trib.
for the Former Yugoslavia, Nov. 30, 2006) 4

13. Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2, Judgement, ¶27 (Int’l Crim.
Trib. for the Former Yugoslavia Dec. 17, 2004) 18

14. Prosecutor v. Kunarac, Case No. IT-96-23& IT-96-23/1-A, Appeal Judgement, ¶85, (Int’l
Crim. Trib. for the Former Yugoslavia Jun. 12, 2002) 1, 4

15. Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, Trial Judgement, ¶706 (Int’l
Crim. Trib. for the Former Yugoslavia Sep. 27, 2006) 4

16. Prosecutor v. Mrkšić et al., Case No. IT-95-13/1-T, Trial Judgement, ¶463 (Int’l Crim.
Trib. for the Former Yugoslavia Sep.27, 2007) 4

17. Prosecutor v. Popovic´, Case No. IT-05-88-T, Trial Judgement, ¶751, (Int’l Crim. Trib.
for the Former Yugoslavia Jun. 10, 2010) 1

18. Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement, ¶137 (Int’l Crim.
Trib. for the Former Yugoslavia Sep. 1, 2004) _3

19. Prosecutor v. Stanišić and Simatović, Case No. IT-03-69, Judgement, ¶963 (Int’l Crim.
Trib. for the Former Yugoslavia May 30, 2013) 3

20. Prosecutor v. Tadić, Case No. IT-94-1, Opinion and Judgment, ¶653 (Int'l. Crim. Trib. for
the Former Yugoslavia May 7, 1997). _ 2, 3, 4, 5

21. Prosecutor v. Vasiljevic, Case No. IT-98-32-T, Appeals Judgement, ¶35 (Int’l Crim. Trib.
for the Former Yugoslavia Nov. 29, 2002) 3

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22. Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement, ¶698 (Int’l Crim.
Trib. for the Former Yugoslavia Dec.12, 2012) 3

ICTR Cases

23. Prosecutor v Akayesu, Case no. ICTR-96-4-T, Trial Judgment, ¶ 580, (Sept. 2, 1998) 2, 4,
5, 6

24. Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Appeal Judgement, ¶77 (Jul. 3,
2002) 3, 4

25. Prosecutor v. Mikaeli Muhimana, Case No. ICTR- 95-1B-T, Judgement and Sentence,
¶527 (Apr. 28, 2005) 3

26. Prosecutor v. Muvunyi, Case No. ICTR 2000-55A-T, Trial Judgement and Sentence,
¶513 (Sept. 12, 2006) 4

27. Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I, Judgment, ¶455 (July 15, 2004)
18

28. Prosecutor v. Semanza, Case No. ICTR-97-20, Judgment, ¶329 (May 15, 2003) 3

National Cases

29. Prosecutor v. A. Martins, No. 11/2001, Judgment, Special Panel for Serious Crimes, Dili
District Court, 13 November 2003 7

30. Prosecutor v. Lino de Carvalho, No. 10/2001, Judgment, 18 March 2004, pp. 12–13 7

31. Prosecutor v. Marques (Los Palos case), No. 09/2000, Judgment, Special Panel for
Serious Crimes, Dili District Court, 11 December 2001 7

Other Cases

32. US v. Krauch et al., Trials of War Criminals before the Nuernberg Military
Tribunals,Vol. III (1952) 8

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33. Weigend (2012) 10 JICJ [1219], 1234 et seq 8

International Jurisprudence

34. 2 Y.B.I.L.C., Part 2, p. 99 (commentary to article 3) (1991) 20

35. ANTONIO CASSESE, PAOLA GAETA & JOHN R.W.D. JONES, THE ROME
STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY
957,969 (Oxford University Press 2002) 10

36. Chaitidou, in: MORTEN BERGSMO AND SONG TIANYING, ON THE PROPOSED
CRIMES AGAINST HUMANITY CONVENTION 47, 66-67 (Torkel Opsahl Academic
EPublisher, 2014) 2

37. FELDBRUGGE & STANISLAW POMORSKI, INTERNATIONAL AND NATIONAL

LAW IN RUSSIA AND EASTERN EUROPE 139,152 (Kluwer Law International
2001); GUSTAVO ARBALLO, CUADERNOS DE DERECHO JUDICIAL 1,21 (Flores
editores 2013) 5

38. GUÉNAËL METTRAUX, INTERNATIONAL CRIMES AND THE AD HOC

TRIBUNALS 172 (Oxford University Press, 2005) 3

39. JULIAN FERNANDEZ, XAVIER PACREAU & LOLA MAZE, STATUT DE ROME
DE LA COUR PÉNALE INTERNATIONALE: COMMENTAIRE ARTICLE PAR
ARTICLE 417,467 3

40. K. AMBOS & S. WIRTH, THE CURRENT LAW OF CRIMES AGAINST

HUMANITY, 1 CRIM. L. FORUM. 13, 18 et seq., 30 (2002) 3

41. KAI AMBOS, TREATISE ON INTERNATIONAL CRIMINAL LAW VOLUME II:

THE CRIMES AND SENTENCING 60 (Oxford University Press 2014) 3, 9

42. Korte, Handeln auf Befehl (2003) 126; van Sliedregt, Individual Criminal Responsibility
(2012) 293 11

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43. ROBERT CRYER, PROSECUTING INTERNATIONAL CRIMES: SELECTIVITY

AND THE INTERNATIONAL CRIMINAL LAW REGIME 254 (Cambridge University
Press 2005) 3

44. SALZBURGER KOMMENTAR (1998) MN 22 ET SEQ. 44 1996 PREPARATORY

COMMITTEE II, ARTICLE Q, PROPOSAL 2, 102. 10

45. STEPHAN MESEKE, DER TATBESTAND DER VERBRECHEN GEGEN DIE

MENSCHLICHKEIT NACH DEM RÖMISCHEN STATUT DES
INTERNATIONALEN STRAFGERICHTSHOFES: EINE
VÖLKERSTRAFRECHTLICHE ANALYSE 136 ( Berliner Wissenschafts-Verlag 2005)
3

46. WILLIAM A. SCHABAS, THE INTERNATIONAL CRIMINAL COURT: A

COMMENTARY ON THE ROME STATUTE 511,512 (Oxford University Press 2016)
13

Statutes and Treatises

47. Rome Statute of the International Criminal Court, Article 7(2)(a), July 17, 1988, 2187
U.N.T.S 99 1, 2, 5, 8

Others

48. Report of ILC Special Rapporteur, note 62, ¶ 93 5

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STATEMENT OF FACTS

Titan is an archipelagic country in Southeast Asia situated in the western Pacific Ocean. Titan
has an area of 22,550 km2 according to the local statistical authority and the World Bank, and as
of 2017, a population of at least ten million (10,000,000). Christianity is the most widely
followed religion of Titan whereas the majority of Titanians consider the Roman Catholic
Church as their religious guide. Titan is a member of the United Nations, the World Trade
Organization and the World Bank. It is a sovereign state, functioning as a unitary semi-
presidential republic. Further, it has signed and ratified the Rome Statute, the International
Covenant on Civil and Political Rights, the Genocide Convention, and the Geneva Conventions.

Xuan acts as the administrative and judicial center of Titan. In terms of population density, the
sizeable civilian population of Xuan is concentrated on its fringes where the biggest ghetto
community of Titan lies. The people living in these ghettos and rural areas lead a starkly distinct
political and cultural life – accounting for only two percent (2%) of the total votes cast
historically in the country’s general elections. Mostly, belonging to the protestant faith, this class
also ranked the lowest on the employability figures as well as the wellness and happiness index
maintained by various human rights organizations running in Titan.

Mr. Jude Steiner, a conservative, catholic, public figure and former President of Titan, governed
the administration of the country from mid-2016 till the end of 2019. During his Presidency, the
country witnessed mass atrocities, murders, torture and summary executions of thousands of
Titanians under the umbrella of his anti-drug campaign, “War on Drugs”. He is believed to have
taken absolute control over all branches of the State. The public officials who refused to follow
the directions of his office were often charged with false accusations and charges revolving
around corruption, dereliction of official duty and obstruction of justice. By the end of 2019, he
is believed to have been responsible for the execution or murder of at least thirty-thousand
civilians.

Mr. Umberto Eco (hereinafter, the accused) is a member of the judicial infrastructure of Titan.
He and his family members have served in multip le important positions of authority under the
administration of Mr. Jude Steiner. At the time of his arrest, the accused held the position of a

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senior consultant to the Ministry of Justice, Law and Order (“Ministry”), Government of Titan
while his wife, Mrs. Martha Ramge served as the chief secretary to the Ministry. His prior
engagements include serving before the ADA Tribunal as a judicial officer (2019 - 2020), the
Office of the Attorney General of Titan (2013 - 2015 and 2016 - 2018) and the Central
University of Xuan as a Professor of Criminal Justice (2007 - 2013). During the period relevant
from the perspective of the investigation undertaken by the ICC Prosecutor, the accused was
serving the ADA Tribunal situated at Xuan.

Anti-Drug Authority (“ADA”) is a a dedicated task force formed by the government to take
swift measures which include the use of aggravated police force to arrest the distribution of
drugs in all relevant communities of Titan. The ADA was directly linked with the office of the
President and enjoyed an almost autonomous status in the governmental hierarchy.

Civil Rights Movement (“CRM”) is an apolitical, non-partisan, non-profit and non-

governmental collective working under the aegis of the United Nations. This association operates
as a specialized committee responsible for providing legal aid, humanitarian assistance and
counseling in distress ridden communities of Titan.The association operates on an ad-hoc basis
and is affiliated with multiple international non-governmental organizations including the Red
Cross. The Court, admits applicant CRM as the Legal Representative of the Victims.

ALLEGATIONS RAIS ED

The accused is alleged to have participated in the persecution of civilian population of Titan by
illegal use of his office and influence. The accused is alleged to have denied all legal claims and
defenses of individuals arrested and tortured by the police forces and the local militia working
for the government. Furthermore, he is alleged to have intentionally influenced the prosecution
of such individuals towards maximum penalty and denial of rights at his disposal.

INVESTIGATIVE FINDINGS

(The period of investigation conducted by the Office of the ICC Prosecutor, based on due
authorizations of this Court, extends from July, 2016 to October, 2020.)

December 14, 2016 - The accused, working for the Attorney General of Titan, submits a
memorandum to the Ministry, arguing in favor of the “Unitary Executive Theory” that favored

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legal interpretations which would grant unbridled powers with scarce checks and balances to the
President of Titan.

January, 2017 - The accused is appointed to the drafting committee of ADA’s “War on Drugs”
policy.

March 4, 2017 - ADA sets up its local watch-dog units called “Friends of the Neighborhood”
that were to facilitate and assist the general public and police forces to detect and eradicate all
active drug syndicates.

July, 2017 to February, 2018 - Sharp increase in violence between the police forces of Titan and
the members of the civil society alleged to be involved in drug related offenses. Thousands of
casualties in the police offensive launched against drug syndicates operating in the cities of
Titan. Communication sent from the ADA to all the police forces authorizing the use of firearms
and assault weapons against gang members who refused to observe the community guidelines
released by their territorial unit of “Friends of the Neighborhood”.

April 30, 2018 - Mr. Steiner’s political outfit gains victory in the parliamentary elections and he
passes formal legislations consolidating his executive authority.

August 3, 2018 - ADA rolls out a controversial policy under which its local units and affiliates
are authorized to arm, train and prepare a group of participating local volunteers from pre-
screened civilian communities in each district. The local militia is given a free- hand with
virtually negligible oversight. The policy is severely criticized by internatio nal human rights
organizations and the media. The policy is upheld by the highest constitutional court of Titan on
the basis of the arguments led by the accused.

Consequence: Within the next four (4) months, this policy leads to a sixty percent (60%) increase
in gun violence and the death of seven hundred (700) individuals. Civil rights organizations are
attacked by armed mobsters with support and intelligence inputs from the local police. Public
officials including elected ministers who refuse to comply with the mandate of the administration
are publicly lynched to set an example for others.

January 10, 2019 - Mr. Steiner appoints the accused to the position of the chief judge of the
ADA Tribunal of Xuan. His appointment is in addition to the seventeen other judicial

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appointments made by Mr. Steiner in that year. These individuals are believed to have been
instrumental in executing the “War on Drugs” policy.

February, 2020 - Several countries impose restrictions and sanctions on Titan. These sanctions
lead to public outcry against Mr. Steiner’s Presidency. Mr. Steiner’s administration responds to
the protests by using paramilitary forces against the protestors. Mr. Steiner, however, is forced to
resign from his position by his political party and is replaced by the vice-president of Titan, Mr.
Francis Dolcini. The new president elect is critical of the former administration.

May, 2020 - A local court based in Vortex City finds three (3) police officers guilty for the cold-
blooded murder of a seventeen (17) year old boy which sparks a public outrage. Responding to
the pressure, the present government of Titan orders re-examination of several cases involving
individuals charged with anti-drug legislations. These cases are summarily decided against the
defendants in the first instance by the judges, including the accused.

PROCEDURAL HISTORY

April 24, 2020 - CRM requests the ICC Prosecutor to open investigation against the Situation
relating to the crimes committed under the “War on Drugs” policy of the Steiner ad ministration.

August 30, 2020 - The Prosecutor releases a preliminary report announcing that, in its opinion,
the attacks referred under it, via the Situation in Titan, pass the legal standards governing the
jurisdiction of the Court with reference to applicable provisions of the Rome Statute.

September 27, 2020 - The Pre-Trial Chamber authorizes the ICC Prosecutor to launch a formal
investigation in connection with the Situation in Titan. (Meanwhile, Mr. Steiner, in return for a
peaceful transition of power in favor of Mr. Francis Dolcini, was able to secure a safe passage
for himself and his family members to China, thus, successfully evading arrest and trial by this
Court.

The Pre Trial Chamber has decided to commit the accused to the Trial Chamber for trial on the
charge of Crime against Humanity of Murder as confirmed.

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ISSUES PRES ENTED

I.

WHETHER UMB ERTO ECO HAS COMMITTED THE ACTS OF CRIMES AGAINST HUMANITY OF
MURDER UNDER ARTICLE 7(1)(A) OF THE ROME STATUTE

II.

WHETHER UMB ERTO ECO SHALL BE HELD LIABLE UNDER INDIVIDUAL CRIMINAL
RESPONSIBILITY STIPULATED BY ARTICLE 25 (3) (A) OF THE STATUTE

III.

WHETHER UMB ERTO ECO SHALL BE HELD LIABLE AS AN ACCESSORY TO MR. JUDE STEINER

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SUMMARY OF ARGUMENTS

I. THE ACCUS ED UMBERTO ECO HAS NOT COMMITTED THE ACTS OF CRIMES AGAINST
HUMANITY OF M URDER UNDER ARTICLE 7(1)(A) OF THE ROME STATUTE
❖ The Defense submits that the accused, Mr Umberto Eco has not committed Crimes
Against Humanity of Murder within the meaning of Art. 7(1)(A) of the Rome Statute. It
is submitted: Firstly, the Contextual Elements of Crimes Against Humanity under the
Chapeau are not fulfilled in the present case [1.] Secondly, the Actus Reus element of
murder is not fulfilled on part of the Accused [2.] Thirdly, subjective elements of the
crime are not fulfilled [3.]

II. THE ACTS OF THE ACCUS ED FALL WITHIN THE EXCEPTIONS TO CRIMINAL LIABILITY
UNDER ROME STATUTE

❖ The Defense submits that the acts of the accused are exempted from attracting his
liability under the Rome Statute. Firstly, the Accused acted under Duress as stipulated in
Article 31(1)(d) [1.] Secondly, the Accused acted under superior orders and prescription
of law as stipulated in Article 33 [2.]

III. THE ACCUS ED UMBERTO ECO IS NOT LIABLE UNDER THE ROME STATUTE FOR THE
ACTS COMMITTED BY HIM
❖ The Defense submits that the accused is not liable under Article 25 of the Rome Statute.
Firstly, He shall not be held liable as a co-perpetrator under Article 25(3)(a) of the Statute
[1.] Secondly, He shall not be held liable as an accessory to Mr. Jude Steiner under
Articles 25(3)(c) and 25(3)(d) of the Statute [3 & 4.]

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PLEADINGS

I. THE ACCUS ED UMBERTO ECO HAS NOT COMMITTED THE ACTS OF CRIME AGAINST
HUMANITY OF M URDER UNDER ARTICLE 7 OF THE ROME STATUTE
1. In the instant case, Mr. Umberto Eco has been charged under Article 7(1)(a) of the Statute.
The Counsels for the Defense submit, that such a trial does not succeed on the merits as the
requirements thereof have not been fulfilled.

1. CONTEXTUAL ELEMENTS OF CAH, AS STATED IN THE CHAPEAU OF ELEMENTS OF

CRIME, ARTICLE 7 HAVE NOT BEEN FULFILLED
2. It is submitted that in order to establish a charge of Crimes against humanity (CAH), the
following contextual elements need to be fulfilled: : (i) there must be an attack; (ii) the attack
must be widespread or systematic; (iii) the attack must be directed against any civilian
population; (iv) the acts of the Accused must be part of the attack; and (v) the Accused must
know that his or her acts constitute part of a widespread or systematic attack directed against
any civilian population.1

i. There was no attack.

3. According to the Rome Statute, an Attack has to involve multiple commission of acts
referred to in paragraph 1, pursuant to or in furtherance of a State or organizational policy to
commit such attack.2 Firstly, the Defense contends that the mere occurrence of multiple acts
alone shall not be sufficient to correctly define the term, since an attack is something more
than ‘a mere aggregate of random acts’3; instead, a certain pattern is required to be
established4. A certain ‘degree of planning, direction or organisation by a group or

1
Prosecutor v. Kunarac, Case No. IT-96-23& IT-96-23/1-A, Appeal Judgement, ¶85, (Int’l Crim. Trib. for the
Former Yugoslavia Jun. 12, 2002); Prosecutor v. Popovic´, Case No. IT-05-88-T, Trial Judgement, ¶751, (Int’l
Crim. Trib. for the Former Yugoslavia Jun. 10, 2010).
2
Rome Statute of the International Criminal Court, Article 7(2)(a), July 17, 1988, 2187 U.N.T.S 99 (Entered into
force on July 1,2002).
3
Prosecutor v. Gbagbo, Case No. ICC-02/11-01/ 11-656-Red, Decision on the Confirmation of Charges, ¶209 (Jun.
12, 2014).

4
Prosecutor v. Bemba, Case No. ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Go mbo, ¶81 (Jun. 15, 2009) Chaitidou, in:

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organisation’5 is necessary to be established otherwise acts unrelated with each other shall
not render them crimes against humanity. Therefore, the Defense submits that in the context
of ICC statute, the existence of a certain pattern of attack as a constitutive element of crime is
expressly required.
4. The Defense submits that it must be demonstrated that the acts were committed in
furtherance of existence of a State or organizational policy to commit such attack.6 The
Elements of Crimes specify that the policy requires the active promotion or encouragement
of an attack against a civilian population by a State or organization. Further, the policy must
be to commit crimes against humanity. It shall be noted that there was no policy to actively
promote crimes against humanity7 against a civilian population, instead, a policy against the
trade and consumption of drugs for any non-medical use8 existed.

ii. The attack was not widespread or systematic.

5. The systematic and widespread characterisation of these attacks is a disjunctive requirement.9
The adjective ‘systematic’ signifies the organised nature of the acts of violence and the
improbability of their random occurrence.10 The common denominator of the various

MORTEN BERGSMO AND SONG TIANYING, ON THE PROPOSED CRIMES A GAINST HUMANITY
CONVENTION 47, 66-67 (Torkel Opsahl Academic EPublisher, 2014).

5
Gbagbo, supra note 3, ¶210; Prosecutor v. Ble´ Goude´, Case No. ICC-02/11-02/11-186, Confirmation Decision, ¶
146 (Dec. 11, 2014).

6
ROME STATUTE , supra note 2, Art. 7.

7
Prosecutor v. Tadić, Case No. IT-94-1, Opinion and Judgment, ¶653 (Int'l. Crim. Trib. for the Former Yugoslavia
May 7, 1997).

8
COMPROMIS, ¶10.

9
Prosecutor v. Momir Savić, Case No. X-KR-07/478, 1st Instance Verdict, ¶30 (Court of BiH. Jul. 3, 2009);
Prosecutor v. Marko Samardžija, Case No. X-KRZ-05/07, 2nd Instance Verdict, ¶14 (Court of BiH. Oct. 15, 2008).

10
Prosecutor v. Blaškić, Case no. IT-95-14-T, Trial Judgment, ¶203 (Int’l Crim. Trib. for the Former Yugoslavia
Mar. 3, 2000); Tadić, supra note 7, ¶648; Prosecutor v Akayesu, Case no. ICTR-96-4-T, Trial Judgment, ¶ 580,
(Sept. 2, 1998).

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definitions found in the case law11 is that such an attack ‘is one carried out pursuant to a
preconceived policy or plan’12, which serves as an indicator of the ‘systematicity’ of the
attack.13 The Defense contends that there is no evidence to adduce that there was a
preconceived policy or plan to further an attack against a civilian population to commit
crimes against humanity. Therefore, the alleged acts cannot be termed as syste matic as they
lack any kind of premeditation.
6. The Defense submits that the Pre-Trial Chamber in the Prosecutor v. Bemba defined
widespread by saying that it “connotes the large-scale nature of the attack, which should be

11
Tadić, supra note 7, ¶648; KAI AMBOS, TREATISE ON INTERNATIONAL CRIMINAL LAW VOLUME II:
THE CRIMES AND SENTENCING 60 (Oxford University Press 2014).

12
Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Appeal Judgement, ¶77 (Jul. 3, 2002); Prosecutor v.
Vasiljevic, Case No. IT-98-32-T, Appeals Judgement, ¶35 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 29,
2002); Prosecutor v. Germa in Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Decision on the
confirmation of charges, ¶397 (Sep. 30, 2008); Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09 OA2, Judgment
in the Jordan Referral re Al-Bashir Appeal, ¶81 (May. 6, 2019); Gbagbo, supra note 3, ¶225; K. AMBOS & S.
WIRTH, THE CURRENT LAW OF CRIMES A GAINST HUMANITY, 1 CRIM. L. FORUM. 13, 18 et seq., 30
(2002); STEPHAN MESEKE, DER TATBESTAND DER VERBRECHEN GEGEN DIE MENSCHLICHKEIT
NACH DEM RÖMISCHEN STATUT DES INTERNATIONALEN STRAFGERICHTSHOFES: EINE
VÖLKERSTRAFRECHTLICHE ANALYSE 136 (Berliner Wissenschafts-Ve rlag 2005); ROBERT CRYER,
PROSECUTING INTERNATIONAL CRIMES: SELECTIVITY AND THE INTERNATIONAL CRIMINAL
LAW REGIME 254 (Cambridge University Press 2005);JULIAN FERNANDEZ, XAVIER PACREAU & LOLA
MAZE, STATUT DE ROME DE LA COUR PÉNALE INTERNATIONALE: COMMENTAIRE ARTICLE PAR
ARTICLE 417,467 (A. Pedone 2012).

13
Blaškić, supra note 10, ¶100; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement, ¶137 (Int’l Crim.
Trib. for the Former Yugoslavia Sep. 1, 2004); Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/ 2-A, Judgement,
¶698 (Int’l Crim. Trib. for the Former Yugoslavia Dec.12, 2012); Prosecutor v. Stanišić and Simatović, Case No. IT- 03-
69, Judgement, ¶963 (Int’l Crim. Trib. for the Former Yugoslavia May 30, 2013); Prosecutor v. Semanza, Case No.
ICTR-97-20, Judgment, ¶329 (May 15, 2003); Prosecutor v. Mikaeli Muhimana, Case No. ICTR- 95-1B-T,
Judgement and Sentence, ¶527 (Apr. 28, 2005); GUÉNAËL METTRAUX, INTERNATIONAL CRIMES AND
THE AD HOC TRIBUNALS 172 ( Oxford University Press, 2005); Prosecutor v. Harun and Kushayb, Case No.ICC-
02/05- 01/ 07-1-Corr, Decision on the Prosecution Application, ¶62 (Apr 27, 2007);; Prosecutor v. Ge rmain Katanga &
and Mathieu Chui, Case No. ICC-01/04-01/ 07, Judgment pursuant to article 74 of the Statute, ¶1098,(Mar. 7, 2014);
Gbagbo, supra note 3, ¶216; CRYER, supra note 12, at 254,255.

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massive, frequent, carried out collectively with considerable seriousness and directed against
a multiplicity of victims”14 Therefore, the onus of proving these elements of a widespread
attack lies on the Prosecution.

iii. The attack was not directed against any civilian population.
7. The Defense maintains that in determining the existence of a civilian population, a court
must consider ‘the specific situation of the victim at the moment the crimes were committed,
rather than his status’.15 Further, it has been held in multiple authoritative pronouncements
of this Court that the term civilian includes persons who have taken no active part in
hostilities.16 It is pertinent to note here that the alleged civilian population was accused under
the national laws of Titan17 and formed a part of gangs and drug syndicates who refused to
observe community guidelines18. Therefore, the alleged acts cannot be said to have been
directed towards a civilian population.
8. The Defence submits that ‘directed against’ means that “the civilian population must be the
primary object of the attack and not just an incidental victim of the attack”. 19 The Defence

14
Bemba, supra note 4, ¶83; Akayesu, supra note 10, ¶580.

15
Prosecutor v. Muvunyi, Case No. ICTR 2000-55A-T, Trial Judgement and Sentence, ¶513 (Sept. 12, 2006);
Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Trial Judgement, ¶79 (June 7, 2000); Blaškić, supra note 10,
¶214.

16
Tadić, supra note 7, ¶637-638; Akayesu, supra note 10, ¶582; Prosecutor v. Galic´, Case No. IT 98-29-A, Appeal
Judgment, ¶144, ( Int’l Crim. Trib. for the Former Yugoslavia, Nov. 30, 2006) Prosecutor v. Momčilo Krajišnik,
Case No. IT-00-39-T, Trial Judgement, ¶706 (Int’l Crim. Trib. for the Former Yugoslavia Sep. 27, 2006) Prosecutor
v. Mrkšić et al., Case No. IT-95-13/1-T, Trial Judgement, ¶463 (Int’l Crim. Trib. for the Former Yugoslavia Sep.27,
2007) .

17
COMPROMIS ¶14

18
COMPROMIS ¶14

19
Kunarac et al, supra note 1, ¶90; Katanga, supra note 13, ¶1104; Bemba, supra note 4, ¶76; Kunarac et al, supra
note 1, ¶91-92.

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reiterates that the policy of the State was directed towards the eradication of the drug
syndicate20 in Titan and therefore, civilians were not the primary object of the a lleged attack.

iv. The Acts of the Accused were not a part of the Attack.
9. The Statute and the Elements of Crimes, both make it unambiguously clear that the acts
enumerated in Paragraph 1 of Article 7 21 must be committed by the accused as part of an
attack.22 There must be a sufficient nexus between the acts of the accused and the attack.23
The same will be determined by factors such as the manner in which the accused’s acts are
24
associated with, or further the policy underlying the attack. Hence, the fundamental
requirement is that the unlawful acts must not be unrelated to the attack, and capable of being
characterised as the isolated and random conduct of an individual acting alone. 25
10. The Defence contends that the acts of the Accused have no nexus with the alleged attack as
his actions were in furtherance of a judicial function, being fundamentally distinct from
executive action. Moreover, there is no clear evidence to adduce that Umberto Eco actively
professed in favour of the policy to commit crime against humanity of murder, rather, he has
maintained that he believes in the sincere rehabilitation of convicts of wrongdoings.26
Therefore, the actions of the accused were independent from the allegedly illegitimate acts
committed in furtherance of the policy of war against drugs.

20
COMPROMIS ¶4

21
ROME STATUTE, supra note 2, Art. 7.

22
Elements of Crime, Art. 7

23
Akayesu, supra note 10, ¶579; Report of ILC Special Rapporteur, note 62, ¶ 93.

24
1986 ILC Special Rapporteur Report, note 62, ¶ 93.

25
Tadić, supra note 7, ¶644; FELDBRUGGE & STANISLAW POMORSKI, INTERNATIONAL AND
NATIONAL LAW IN RUSSIA AND EASTERN EUROPE 139,152 (Kluwer Law International 2001); GUSTAVO
ARBALLO, CUADERNOS DE DERECHO JUDICIAL 1,21 (Flores editores 2013); Katanga, supra note 13, ¶394;
Bemba, supra note 4, ¶75, ¶77, ¶83; Al-Bashir, supra note 12, ¶81; Katanga, supra note 13, ¶1104, ¶1123.

26
Annexure II, p.34.

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v. The Accused did not know his acts constitute part of a widespread or systematic
attackdirected against any civilian population.
11. The Defense submits that the accused did not have the knowledge that his acts constitute a
part of a widespread or systematic attack directed against a civilian population. The Defense
contends that the accused merely acted in pursuit of the mandate of law and therefore, it
cannot be said that he knew his acts constituted an attack against a civil population.

vi. The Accused did not kill/ cause death of any person
12. The Defence submits that as per the Elements of Crimes, one crucial element of crime
against humanity of murder is that the perpetrator killed, or caused the death of, one or more
persons.27 According to the Pre-Trial Chamber in the case Prosecutor v. Bemba, the material
elements of murder were held to be “that the victim is dead” and that the death must “result
from the act of murder.”28 The Defence categorically contends that neither did the accused
kill, or cause death of any person himself nor any death was caused on account of the acts
which the Prosecution claims the accused aided in. Therefore, the charge of crime against
humanity or murder cannot be proved against the accused by any stretch of imaginatio n.
13. It is further, submitted that the mere fact that the accused issued death warrants under law is
not conclusive that the accused killed or caused death of anyone. Firstly, the act of issuing
death warrants as per the law prevailing in Titan cannot be categorised as an unlawful act of
murder.29 Furthermore, there is no evidence which suggests that these death warrants were
executed and hence, caused death of any person. The Defence brings the attention of the
Hon’ble Trial Chamber towards the fact that Titan is a Republic30 having an appellate form
of judiciary, (including the Supreme Court of Titan) therefore, it can be reasonably construed
that these death penalties are still pending adjudication and have not been executed in light of
the fact that there is nothing which suggests otherwise.

27
Elements of Crime, Art. 7

28
Bemba, supra note 4, ¶132.

29
Akayesu, supra note 10, ¶589..

30
COMPROMIS ¶3

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14. Subsequently, the charges levelled by the Prosecution that the accused aided the Steiner
administration31 by systematically denying permission to prosecute police officers 32
or
denying rights at his disposal33 cannot in anyway be linked with killing or causing death and
therefore, either way, this essential element of Crimes Against Humanity of Murder cannot
be established beyond reasonable doubt.
15. The Defence further elucidates that the standard which has been prescribed is that the
perpetrator’s act must be a substantial cause of the victim’s death34. Hence, the Defence
submits that even if a death was caused, it shall not constitute crime against humanity of
murder qua the accused as the same cannot be said to have been caused substantially by the
acts of the accused. The deaths were caused by Steiner’s officials under his control only, and
they had no nexus with the Accused.

II. THE ACTS OF THE ACCUS ED FALL WITHIN THE EXCEPTIONS TO CRIMINAL LIABILITY
AS STIPULATED UNDER ARTICLE 31 OF THE ROME STATUTE

1. THAT THE ACCUS ED ACTED UNDER D URESS

i.The conduct alleged to constitute CAH has been caused by duress

resulting from athreat of imminent death and continuing serious
bodily harm constituted by circumstances outside the control of
the accused.
16. The Defence, inter alia, submits that the conduct of the accused which is alleged to constitute
a crime within the jurisdiction of this court has been caused by duress resulting from a threat
of imminent death and of continuing serious bodily harm.35 It exists when the defendant’s

31
COMPROMIS, ¶9.

32
COMPROMIS, ¶9.

33
COMPROMIS, ¶9.

34
Prosecutor v. Marques (Los Palos case), No. 09/ 2000, Judgment, Special Panel for Serious Crimes, Dili District
Court, 11 December 2001, paras. 644–649; Prosecutor v. Lino de Carvalho, No. 10/2001, Judgment, 18 March 2004,
pp. 12–13; Prosecutor v. A. Martins, No. 11/2001, Judgment, Special Panel for Serious Crimes, Dili District Court,
13 November 2003.

35
ROME STATUTE, supra note 2, Art. 31.

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freedom of will and decision is so severely limited that there is eventually no moral choice36
available. It is brought to the attention of the Hon’ble Chamber that the Steiner
Administration had taken absolute control over all branches of the State and had issued broad
directions to multiple state agencies, the judiciary and similarly placed offic ials to ensure that
legislations and their policies are enforced indiscriminately against those charged with the
violation of these laws.37 It had established a pattern, wherein, harsh sentences and
illegitimate sanctions were imposed against judges who opposed his views.38
17. Further, evidence submitted by the ICC Prosecutor suggests that any organisation or person
showing accommodation to civil rights [ which was deemed to be in opposition of the
administration and its policies ] were attacked by armed mobsters in connivance with the
local police.39 Not only this, public officials to the extent of elected ministers who refused to
comply with the mandate of administration were lynched publicly to set an example for
others.40 Therefore, it is patently clear from the prevailing circumstances that the accused
was under duress resulting from a threat of imminent death and continuing serious bodily
harm.

ii. The conduct alleged to constitute CAH has been caused by duress resulting from a
threat of imminent death and continuing serious bodily harm made by other
persons.
18. The Defence further submits that threats were also objectively given to the accused by Chief
of the ADA by way of email41 warning about the lethal consequences of non-obedience on

36
US v. Krauch et al., Trials of War Criminals before the Nuernberg Military Tribunals,Vol. III (1952) 1176,
Weigend (2012) 10 JICJ [1219], 1234 et seq.

37
COMPROMIS, ¶4.

38
COMPROMIS, ¶4.

39
COMPROMIS, ¶9.

40
COMPROMIS, ¶15.

41
Annexure I, p. 33.

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42
part of the accused, hence, qualifying the threshold standard of a threat. Thus, it can be
reasonably inferred that the accused was under serious duress emanating from threats of
imminent death and continuous bodily harm objectively made by the Chief of ADA.

2. THE ACCUSED ACTED NECESSARILY AND REASONABLY TO AVOID THE THREAT

19. The Defence submits that the accused acted necessarily and reasonably to avoid the threat.
Firstly, on the first insistence by the Chief of ADA43 to aid the policies of Steiner
Administration, the accused categorically maintained that the nature of his office does not
permit manifestation of any explicit bias44. Moreover, he highlighted his constraints and
prayed for concessions in his favour45. Further, it is submitted that if the accused still did not
curtail his sympathy in favour of the victims of war on drugs, there is reasonable basis to
believe that the accused would have been assassinated just like the case of Mr Justin Blake.46
Thus, it can be inferred that the accused did act necessarily and reasonably to avoid the
threat.

i. The accused did not intend to cause greater harm than was sought to be
avoided
20. The Defence submits that the accused did not intend to cause greater harm than was sought to
be avoided by ensuring that his actions emanating from duress did not lead to the unlawful or
unjust death of any innocent civilian. It is further submitted that considering the police
brutality amongst undertrials47, on his end, he made sure that trials were not kept pending for
long and the same is the reason for his highest number of disposal of cases. Therefore, all the
elements of excluding criminal liability under duress in case the conduct alleged constitutes a

42
KAI AMBOS, TREATISE ON INTERNATIONAL CRIMINAL LAW VOLUME I: THE CRIMES AND
SENTENCING 357 (Oxford University Press 2013); ROBERT CRYER, AN INTRODUCTION TO
INTERNATIONAL CRIMINAL LAW AND PROCEDURE 408 (Cambridge University Press 2014).

43
ANNEXURE – I

44
ANNEXURE – I

45
ANNEXURE – I

46
ANNEXURE – III

47
COMPROMIS ¶8

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crime have been adequately fulfilled and hence, the accused cannot be held criminally
responsible for the same.

3. THAT THE ACCUS ED ACTED UNDER SUPERIOR ORDERS AND PRESCRIPTION OF LAW
21. The Defence submits that the conduct of the Accused which is alleged to constitute a crime
within the jurisdiction of this court has been caused pursuant to superior orders and
prescription of law. Article 33 of the Statute stipulates the exemption of a person from
criminal liability for commission of a crime within the jurisdiction of the court if such a
crime was committed pursuant to an order of Government or of a superior. 48 It shall be noted
that superior orders have to be seen in light of prescription of law. 49
22. The Defence further submits that an order in the sense of Article 33 includes all orders, oral
or written, or otherwise express demands which may describe functions so as to behave in
50
specific way, whether by acting or omitting. Moreover, any sort of explicit or implied
communication between a superior and subordinated person is sufficient to constitute an
order.51 Furthermore, an order of a government can be issued by any of its branches or by a
person in charge of specific functions which permit them to act on behalf of a government.
23. The superior-subordinate relationship within the meaning of Article 33 has a broad
connotation and therefore, it is advisable to include in principle all superior-subordinate
relationships in which superiors exercise some degree of control over their subordinates.
24. For the purposes of Article 33, the personal belief of the accused or his intention has no
nexus whatsoever with the defence as it is sufficient in case the crime was initiated or
inspired by the order, regardless of the fact that subordinate desired or was motivated to do

48
ROME STATUTE, supra note 2, Art. 33.

49
SALZBURGER KOMMENTAR (1998) MN 22 ET SEQ. 44 1996 PREPARATORY COMMITTEE II,
ARTICLE Q, PROPOSAL 2, 102.

50
9 Conc. AMBOS, supra note 42, at 380; ANTONIO CASSESE, PAOLA GA ETA & JOHN R.W.D. J ONES, THE
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 957,969 (Oxford
University Press 2002); Korte, Handeln auf Befehl (2003) 126.

51
AMBOS, supra note 42, at 380, Korte, Handeln auf Befehl (2003) 126; van Sliedregt, Individual Criminal
Responsibility (2012) 293.

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so. This is because the causal connection between order and the crime of subordinate has to
be evaluated on an ex-post basis in accordance with the rules of natural sciences which leaves
no scope for a connection between intent and crime to be ascertained.
25. The Defence contends that the acts of the accused fulfil all the contextual elements of Article
33 and hence, the accused shall be relieved of criminal responsibility. Firstly, the accused
acted as per the prescription of law i.e., the orders of the legislative branch of the
government. Secondly, it shall be noted that the ADA was directly linked to the office of the
President52 and therefore, the accused can said to be the subordinate of the President as he
exercised control over the affairs of the Tribunal53. Thirdly, inter alia, there were both
explicit54 and implicit55 orders to the Accused to act in a particular way by curtailing his
judicial discretion in favour of those accused under the war on drugs policy. Thus, all the
contextual elements of Article 33 are fulfilled.
26. Further, the following material elements are required to be fulfilled to avail a defence under
Article 33:-
i. The person was under a legal obligation to obey orders of the Government or the
superior in question;
ii. The person did not know that the order was unlawful; and
iii. The order was not manifestly unlawful

i. The Accused was under a Legal Obligation to Obey Orders of the Government
27. The Defence submits that the Accused by virtue of being a judge of the ADA Tribunal had a
legal obligation to act as per the prescription of law, which were the legislations in place in
Titan. It is brought to the attention of this Hon’ble Chamber that the legislations in Titan
provided for extremely harsh penalties for offences relating to trade and consumption of
drugs56 and supported Steiner’s “War on Drugs Policy”. 57

52
COMPROMIS ¶10

53
ANNEXURE – II

54
ANNEXURE – I

55
COMPROMIS ¶4

56
COMPROMIS ¶4

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28. Moreover, it is contended that the composition of ADA Tribunal was such that it was directly
linked to the Office of the President58 and therefore, ,the accused can be said to be the
subordinate of the President as he exercised control over the affairs of the Tribunal in this
scenario. Thus, in addition to the prescription of law, there were implicit59 and explicit
60
orders from the President which the accused was under no position to refute.

i. The Accused did not know that the order was unlawful
29. The Defence submits that the Accused did not know the order was unlawful as the same was
prescribed by law prevailing in Titan. Moreover, the orders of the Chief of the ADA cannot
be termed “unlawful” as the requirement is that illegality must reflect from the content of the
order, which must refer to a crime within the jurisdiction of this court. The Defence contends
that firstly, the accused acted as per the legislations in force in Titan and secondly, the order
of the of Chief of the ADA cannot be termed as unlawful as the same does not constitute a
crime within the jurisdiction of this court. The orders to pace up the work of the tribunal are
not unlawful.

ii. The order was not manifestly unlawful

30. The manifestly unlawful criterion establishes a high threshold such that the unlawfulness of
the order must be obvious, self-evident and incontestable. It is submitted that legislations in
place cannot be termed as manifestly unlawful. Moreover, the order of the Chief of ADA
does not qualify the manifestly unlawful threshold as it is far from unlawful. The orders to
pace up the work of the tribunal are not unlawful. Thus, for the foregoing reasons, it is
submitted that the accused shall be relieved of criminal responsibility as he acted under the
prescription of law.

57
COMPROMIS ¶4

58
COMPROMIS¶10

59
COMPROMIS¶ 4

60
ANNEXURE – I

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III. THE SPECIFIC ELEMENTS OF CRIME AS STIPULATED UNDER ARTICLE 30 OF THE ROME
STATUTE ARE NOT FULFILLED IN THE INSTANT CAS E
31. The Defence submits that the Rome Statute stipulates that a person will be liable only if the
material elements of a crime are committed with intent and knowledge. 61 Hence, the Defense
submits that the accused did not have the requisite limb of (i) intent and (ii) knowledge.

i. Intent
62
32. This requirement is enshrined under Article 30 (2) (a) of the Statute. It requires that the
person means to engage in the conduct and means to cause the consequence or is aware that
63
it will occur in the ordinary course of events. The Defence contends that the accused
Umberto Eco did not mean to engage in the conduct because he lacked the volitional
element64 as his alleged conduct was effectuated by duress which has been effectively
established by the Defence in its previous submission65.
33. The Defence further contends that the accused did not mean to cause the consequence or was
aware that it will occur in ordinary course of events. The default rule of Article 30 of the ICC
Statute does not accommodate any standard of mens rea below the threshold of knowledge of
result in terms of practical certainty. 66 It submits that the accused could not have known that
his curtailment of judicial discretion in favour of the victims would lead to the material
elements of crime against humanity as the same is too farfetched to be defined in terms of
practical certainty. Thus, it can be reasonably concluded that the accused did not mean to
cause the consequence or was aware that it will occur in ordinary course of events.

61
ROME STATUTE, supra note 2, Art. 30.

62
Ibid.

63
Art. 30 (2) (3); Lubanga, supra note 74, ¶350.

64
Prosecutor v. Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, Decision on the Confirmation of Charges, 29
January 2007, ¶ 351. See also: Bemba (ICC-01/ 05-01/08), Pre-Trial Chamber II, Decision on the Confirmation of
Charges, 15 June 2009, ¶ 357.

65
Argument II-A

66
Bemba, supra note 4, ¶359; Prosecutor v. Lubanga, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of
the Statute, ¶1101 (Mar. 14, 2012).

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34. The contention that the accused had probable knowledge of the consequences cannot prevail
because a mere possibility cannot satisfy the standards of intent 67 under the statute. This is in
harmony with the rule of strict construction under Article 22 (2)68 of the Statute and is fully
consonant with the academic writings on the matter. 69
35. For the purpose of establishing crimes against humanity of murder, it is pertinent to note that
intent is only relevant to the extent that the material elements of that crime must be
70
committed with it. Further, mens rea should be strictly construed. Hence, mere
participation in the drafting of the war on drugs policy71 or his push for the Unitary Executive
Theory cannot be construed as intent to commit the material elements of crime against
humanity of murder72. It requires that the perpetrator killed someone with intent and
knowledge and that the same is not established beyond a reasonable doubt. Thus, this
requirement cannot be met as the perpetrator never intended to kill anyone.

ii. Knowledge
36. In the instant case before this Hon’ble Chamber, the knowledge would entail awareness that
73
a consequence will occur in the ordinary course of circumstances. As shown in the above
74
submissions, it does not cover probable knowledge of consequence. It requires a standard
of “virtual certainty”75 which cannot be established beyond a reasonable doubt in the facts of

67
Prosecutor v. Jean-Pierre Go mbo, ICC-01/05-01/08, Decision pursuant to Article 61(7)(a) of the Rome Statute on
the Charges of the Prosecutor against Jean-Pierre Bembe Gobo, ¶363 (Jun. 15, 2009) [hereinafter Go mbo].

68
ROME STATUTE, Art. 22(2)

69
AMBOS IN CRYER AND BEKOU (2004), p. 22. See also: Weigend (2008) at 484.

70
Werle, supra note 87, at 961.

71
COMPROMIS¶ 11

72
COMPROMIS¶11

73
ROME STATUTE, supra note 2, Art. 30 (3).

74
Bemba, supra note 4, ¶363.

75
Katanga, supra note 13, ¶774.

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the case. The accused was not aware that the acts of Steiner Administration constitute a crime
under the Statute. Therefore, the Defence humbly submits that the requisite limb of
‘knowledge’ is not present in the instant case.

IV. THAT THE ACCUS ED UMBERTO ECO IS NOT LIABLE UNDER ARTICLE 25 OF THE ROME
STATUTE
37. In the instant case, the accused is made liable under Individual Criminal Responsibility for
his involvement in the implementation of “War on Drugs” policy. The defence submits that
there are five factors of ICL as identified by the pre-trial chamber in the case of Lubanga.76
These elements were further confirmed and used by the trial chamber as well as the appeals
chamber. The accused’s conduct is not in violation of any of the given elements. The defence
contends:

1. THAT THE ACCUS ED IS NOT LIABLE UNDER ARTICLE 25(3)(A) FOR CO-PERPETRATION
IN THE SAID CRIME

38. It is submitted that for the confirmation of charges, there are five elements that need to be
fulfilled: i) the existence of a common plan between two or more persons; ii) the coordinated
essential contribution made by each co-perpetrator that results in the realization of the
objective elements of the crime; iii) the accused was aware that by implementing the
common plan, the criminal consequences would ‘occur in the ordinary course of events’; iv)
the accused was aware that he provided an essential contribution to the implementation of the
common plan and v) the accused was aware of the factual circumstances that established the
existence of an armed conflict, and of the link between these facts and his conduct. In
absence of any of these elements, the Accused cannot be held liable under the said article.

i. There is no common plan that can be derived from the facts presented
39. It is humbly submitted before this Hon’ble Court that the present element stipulates the
existence of a common goal and agreement between the person(s) involved 77. First of all,

76
Prosecutor v. Lubanga, Case No. ICC-01/04-01/ 06-803, Decision on the confirmation of charges, ¶343 (Jan. 29,
2007).

77
Id, ¶17.

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there was no common goal that could be inferred from the facts presented. The accused was
acting diligently as a judicial officer and as per the law of the land. made a ll the decisions
free of any bias, however, under duress. He was appointed as the Chief Judge at the ADA
tribunal solely because of his experience and competence. His personal beliefs never clouded
his judgments and therefore, the allegations made against him are unfounded. There is no
clear evidence that states that the accused acted as an accessory to the Steiner administration.
Hence, the accused is not liable under this provision of the Rome Statute.

ii. The acts of the accused do not form essential contribution

40. It is humbly submitted before this learned Court that with regard to the requirement of an
‘essential contribution’ the Statute’s wording require that the offence be the result of
‘combined and coordinated’ contributions of those involved. 78
In order to form an essential
contribution, the accused must have done an act, without furtherance of which, the plan
would stay unattended. However, no such act is committed by the accused. Therefore, the
accused has in no manner made an essential contribution rendering the allegations against
him unfounded.

iii. The Subjective Elements have not been fulfilled

41. This element of co-perpetration asserts that subjective elements with regard to crime79 as
well as common plan must be fulfilled. 80 The Defense submits that the absence of intent and
knowledge to commit material elements of crime on part of the Accused has already been
established by the Defense in its previous submission.
42. With respect to the common plan, it is submitted that the subjective test is that the (i) co-
perpetrators are mutually aware that implementing the common plan will result in the
fulfilment of the material elements of the crimes; and yet (ii) they carry out their actions with
the purposeful will (intent) to bring them about, or are aware that in the ordinary course of

78
Id, ¶9.

79
Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, Decision on the Confirmation of Charges, 29 January 2007,
paras 349– 360.
80
Lubanga, supra note 68, ¶349.

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events, the fulfilment of the material elements will be a virtually certain consequence of their
actions.81
43. The existing jurisprudence of this court has stipulated a very high threshold to establish the
subjective elements of co perpetration. It is submitted that, by any stretch of imagination, the
accused cannot be construed as aware that his legal actions of adjudication82 will, in all
certainty, bring about material elements of a crime. Thus, the objective and subjective
elements under Art 25(3)(a) have not been fulfilled and the Accused cannot incur criminal
liability under the same.

2. THAT THE ACCUS ED IS NOT LIABLE UNDER ARTICLE 25(3)(B) FOR ORDERING,
SOLICITING OR INDUCING THE SAID CRIME

44. It is humbly submitted that as per Article 25(3)(b) of the Statute, anyone who orders the
commission of a crime under international law or who instigates (‘solicits’ or ‘induces’)
83
another to commit such a crime is criminally liable. Here criminal responsibility requires
that the crime in question has actually been committed or has at least been attempted.84
Furthermore, the order must directly and substantially effect commission of the crime. 85 It is
necessary that the perpetrator commits or at least attempts the commission of the crime in
carrying out the order.
45. The Defense further contends that the Accused cannot incur liability under the four corners
of this Article as it merely deals with a person who orders, solicits or induces the
“commission of a crime” It shall be noted that no conduct of the Accused can be construed as

81
Bemba (ICC-01/ 05-01/ 08), Pre-Trial Chamber II, Decision on the Confirmation of Charges, 15 June 2009, paras
351, 370. In the same vein, Katanga et al. (ICC-01/ 04-01/ 07), Pre-Trial Chamber I, Decision on the Confirmation of
Charges, 30 September 2008, para. 533; Muthaura et al. (ICC-01/09-02/ 11), Pre-Trial Chamber II, Decision on the
Confirmation of Charges, 23 January 2012, para. 410
82
COMPROMIS¶ 16
83
ROME STATUTE, supra note 2, Art. 25(3)(b).

84
Prosecutor v. Ga lić , Case No. IT-98-29, Judgment, ¶168 (Int’l Crim. Trib. for the Former Yugoslavia Dec, 5,
2003); Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I, Judgment, ¶455 (July 15, 2004).

85
Blaškić, supra note 10, ¶ 42; Prosecutor v. Kordić and Čerkez, Case No. IT -95-14/2, Judgement, ¶27 (Int’l Crim.
Trib. for the Former Yugoslavia Dec. 17, 2004).

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ordering or inducing the commission of a “crime”. The Accused had no authority over the
police or local milita to order or induce the commission of a crime.
46. The Defense submits that the absence of intent and knowledge to commit material elements
of crime on part of the Accused has already been established by the Defense in its previous
submission. Thus, the objective and subjective elements under Art 25(3)(a) have not been
fulfilled and the Accused cannot incur criminal liability under the same.

3. THAT THE ACCUS ED IS NOT LIABLE UNDER ARTICLE 25 (3) (C) FOR ASSISTANCE IN THE
SAID CRIME

47. Article 25 (3) (c) of the Rome Statute relates to the responsibility for aiding, abetting or
otherwise assisting in the commission or attempted commission of a crime within the
jurisdiction of the court.86 The purpose behind such aiding, abetting, or assistance should be
the facilitation of the crime. Furthermore, it must be "direct and substantial"; i.e., the
contribution should facilitate the commission of a crime in "some significant way". This legal
position was reiterated in the Tadić case.
48. The Defense submits that the Accused did not aid, abet or assist in the facilitation of a crime
as there is no reliable evidence to adduce the same. Moreover, due to procedural safeguards,
the official powers a judge are intrinsically curtailed in a way that it cannot directly or
substantially aid in the facilitation of a crime. Furthermore, is shall be noted that if the
supposed aiding and abetting occurs after the crime, there is the onus to establish a prior
agreement existed between the principal and a who aided and abetted in the commission of
crime.87 Thus, it cannot be established that the Accused aided, abetted or assisted in the
commission of a crime.
49. The Defense submits that to establish mens rea under Article 25(3)(c), the Accused must
possess the “intention to facilitate the commission of the alleged crime”. 88
The lack of intent
and knowledge on part of the accused has already been proved hitherto by the Defence in its
previous submission.

86
Article 25 (3) (c), Rome Statute.

87
Blagojevic´ Trial Judgement, para. 731.
88
Blé Goudé Confirmation of Charges [167]

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4. THAT THE ACCUSED IS NOT LIABLE UNDER ARTICLE 25 (3)(D) FOR CONTRIBUTING TO
THE COMMISSION OF A CRIME OR AN ATTEMPTED CRIME BY A GROUP

50. The Defence submits that the Accused is not liable under Art. 25(3)(d) of the Statute as an
accessory to CAH of Murder.89
51. Art. 25(3)(d) functions as a catch-all provision as it requires less of a threshold than any other
form of liability.90 In Mbarushimana91 the PTC had set out the requirements for liability
under Art. 25(3)(d) which are enumerated as follows:

i. The objective Elements have not been fulfilled

52. The subparagraph (d) displays the lowest objective threshold within the different modes of
attribution of Article 25.92 As was held in Mbarushimana, the objective elements of the crime
are: (i) a crime within the jurisdiction of the Court is attempted or committed; (ii) the
commission or attempted commissio n of such a crime was carried out by a group of persons
acting with a common purpose; (iii) the individual contributed to the crime in any way other
than those set out in Article 25(3)(a) to (c) of the Statute. 93
53. With reference to (i), it is submitted that the ratione materiae has not been fulfilled, as CAH
of Murder due to the acts of Accused has not taken place in the instant case, which has been
established above94. As with regards to (ii), reference may be drawn from the pleadings
submitted hitherto95, wherein, it has been proved that the Accused and Steiner did not have
any common purpose, per se.
54. As with respect to (iii), the PTC in Mbarushimana designated that there must be a
‘significant’ contribution.96 As to the assessment of ‘significant’, the PTC proposed a case-

89
Lubanga, ¶334.
90
J.D Ohlin, Joint Intentions to Commit International Crimes, 11 CHI. J. OF INT’L L. 409 (2010).
91
Prosecutor v. Callixte Mbarushimana, ICC-01-04-01-10, Decision on the Prosecutor’s Application for a Warrant
of Arrest, ¶41 (Dec. 16, 2011).
92
Prosecutor v. Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges, ¶354, (Jan. 23, 2012).
93
Mbarushimana, ¶39.
94
Actus Reus Argument
95
Article 25(3)(a) Argument
96
Mbarushimana,¶283-¶285; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/ 06- 309, Decision on the Confirmation
of Charges, ¶158 (9 June 2014); Prosecutor v. Gbagbo, ICC- 02/11-01/11-656-R, Decision on the Confirmation of
Charges, ¶252, (12 June, 2014).

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by-case analysis of the person’s conduct in the given context 97

taking into account several
factors which include:
(i) the sustained nature of the participation after acquiring knowledge of the
criminality of the group’s common purpose, (ii) any efforts made to prevent criminal
activity or to impede the efficient functioning of the group’s crimes, (iii) whether the
person creates or merely executes the criminal plan, (iv) the position of the suspect in
the group or relative to the group and (v) perhaps most importantly, the role the
suspect played vis-a`- vis the seriousness and scope of the crimes committed.98
55. The Defense submits that the jurisprudence with regard to “significant contribution” has
established very high threshold which requires a number of factors to be proved with regard
to the person’s conduct. The Defense contends that in absence of any act by the Accused
which could remotely lead to CAH, and lack of intent or knowledge to cause harm, the
Accused cannot be said to make a “significant contribution”. Thus, it is submitted that
objective elements of a significant contribution under Art. 25(3)(D) have not been fulfilled in
the instant case.

ii. Subjective Elements have been Fulfilled.

56. It is submitted that the subjective elements are: (i) the contribution shall be intentional; and
(ii) shall either (a) be made with the aim of furthering the criminal activity or criminal
purpose of the group; or (b) in the knowledge of the intention of the group to commit the
crime.99
57. With reference to (i), it is submitted that, ‘intentional’ is to be understood as possessing the
dolus as enumerated in Art. 30 of the Statute and means in relation to a conduct - ‘to engage
in that conduct' and in relation to consequence – as ‘means to cause that consequence’ or as
being ‘aware’ that it will occur100. It has already been proved by the Defense in its earlier
submission that there was no intent to engage in relation to conduct or consequence on part
od the Accused.101

97
Mbarushimana, ¶284; Katanga Judgment, ¶1634.
98
Id.
99
Mbarushimana,, ¶41.
100
Triffterer,, at 1014.
101
Article 30 Submission

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58. As concerning (ii), with respect to (a), the accused must possess the ‘dolus’, i.e. the specific
intention to promote the ideas and acts of the group. 102 The defense has already established di
lack of common plan and therefore there is no intention to promote the ideas of a particular
group in the instant case. Therefore, the objective and subjective elements under Art 25(3)(d)
have not been fulfilled and the Accused cannot incur criminal liability under the same.

5. THAT THE ACCUSED IS NOT LIABLE UNDER ARTICLE 25 (3)(F) FOR ATTEMPT AND
ABANDONMENT

59. It is humbly submitted before this learned bench that the relevant article provides for the
criminal responsibility of an individual who attempts to commit a crime within the
jurisdiction of the Court if a person commits an act to carry out his or her intention and fails
to successfully complete the crime only because of some independent factor which prevents
him or her from doing so.
60. The phrase ‘does not occur’ recognizes that the notion of attempt by definition only applies
to situations in which an individual endeavours to commit a crime and fails in this
endeavour.103 Thus, an individual incurs criminal responsibility for unsuccessfully attempting
to commit a crime only when the following elements are present: (a) intent to commit a
particular crime; (b) an act designed to commit it; and (c) non-completion of the crime for
reasons independent of the perpetrator's will.104
61. The defence submits that the accused neither intended to commit any particular crime, nor
did he have an act designed to commit it. Therefore, the accused does not incur any criminal
liabilities under Art. 25 (3)(f).

102
Prosecutor v. Semanza,Trial Chamber, ICTR-97-20, ¶ 313 (15 May 2003).
103
OTTO TRIFFTERER & K. AMBOS, COMMENTARY ON THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: OBSERVERS' NOTES, ARTICLE BY ARTICLE 762-765 (Oxford,
Beck/ Hart 2015).

104
Albin Eser, in CASSESE, supra note 50, at 803-818.

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V. PRES UMPTION OF INNOCENCE

62. The Defense submits that pursuant to Article 66 of the Statute, everyone shall be presumed
innocent until proved guilty before the Court in accordance with the applicable law. 105
63. ILC Draft Statute contained the following provision: ‘An accused shall be presumed
innocent until proved guilty in accordance with law. The onus is on the Prosecutor to
establish the guilt of the accused beyond reasonable doubt’. The second sentence, containing
the reference to the ‘reasonable doubt’ standard had not been included in the 1993 ILC draft.
However, that earlier version was accompanied by a commentary that left no doubt about this
issue:
“This provision recognizes that in a criminal proceeding the accused is entitled
to a presumption of innocence and the burden of proof rests with the prosecution.
The presumption of innocence is recognized in article 14, paragraph 2, of the
International Covenant on Civil and Political Rights which states that ‘Everyone
charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law’. The Prosecutor has the burden to prove every
element of the crime beyond a reasonable doubt or in accordance with the
standard for determining the guilt or innocence of the accused. If the Prosecutor
fails to prove that the accused committed the alleged crime, then the person must
be found not guilty of the charges contained in the indictment.”106

105
Article 66
106
SALZBURGER KOMMENTAR (1998) MN 22 ET SEQ. 44 1996 PREPARATORY COMMITTEE II,
ARTICLE Q, PROPOSAL 2, 102.

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PRAYER

Wherefore, in the light of the issues raised, arguments on merits, evidences supplied and
authorities relied on, it is humbly prayed that:

I.The accused, Umberto Eco, did not commit the acts of Crime Against Humanity ofMurder
under Article 7(1)(a) of the Rome Statute.

II. Umberto Eco is not Individually Criminally Responsible for the acts committed by himas a co-
perpetrator.

III. Umberto Eco is not Individually Criminally Responsible for the acts committed by himas a
willing accessory.

COUNSELS FOR THE DEFENS E

23 Prayer Submission for Defense

 SLS_07_P

SIXTH SYMBIOSIS LAW SCHOOL, PUNE – INTERNATIONAL CRIMINAL TRIAL

ADVOCACY, 2021

Before

Trial Chamber I, International Criminal Court

The Hague, The Netherlands

THE PROSECUTOR PROSECUTION

V.

UMBERTO ECO DEFENCE

DEFENDANT CHARGED WITH

Crime against Humanity under Article 7 of the Rome Statute

WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION

Word Count:6843
 SIXTH SYMBIOSIS LAW SCHOOL, PUNE – INTERNATIONAL CRIMINAL TRIAL ADVOCACY COMPETITION, 2021

Original: English No.: ICC-09/03-21/10

Date: [April 23, 2021]

TRIAL CHAMBER I

Before: Judge , the Presiding Judge

Judge , and

Judge ,

SITUATION IN THE REPUBLIC OF TITAN

IN THE CASE OF

THE PROSECUTOR v. UMBERTO ECO

PUBLIC

Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Umberto Eco

Page |i Source: Office of the Prosecutor

 SIXTH SYMBIOSIS LAW SCHOOL, PUNE – INTERNATIONAL CRIMINAL TRIAL ADVOCACY COMPETITION, 2021

TABLE OF CONTENTS

Table of Contents ii

List of Abbreviations iv

Index of Authorities vii

Statement of Facts xiv

Issues Presented xix

Summary of Arguments xx

Arguments in Detail 1

I. That The Crime Against Humanity of Murder Has Been Committed 1

1. That the Contextual Element of Crime against Humanity, as Stated in the Chapeau of
Elements of Crime, Article 7 have been Fulfilled 1
i. The attacks were systematic or widespread 1
ii. The acts of the Accused form part of the attack 3
iii. The attacks were directed against a civilian population 5
iv. The accused had the knowledge of the attack 6
v. There existed a State or organizational policy of CAH. 6
2. That the Actus Reus Limb is Satisfied 7
3. That the Requisite Limb of Mens Rea is Satisfied 9
i. The intent requirement is fulfilled. 10
ii. The knowledge requirement is fulfilled 11

II. That the Acts of the Accused do not fall within the Exceptions to Criminal Liability
as Stipulated under Article 31 & Article 33 of the Rome Statute 13
1. That the defence under Article 31 is not applicable 13
i. The defence of duress under Article 31(1) (d) is not applicable Error! Bookmark
not defined.
ii. That the defence under Article 33 is not applicable 15

III. That The Accused Umberto Eco is Liable for the Acts Committed by Him 17

P a g e | ii Table of Contents Submission for Prosecution

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1. He shall be held Liable as a Co-Perpetrator under Article 25(3)(A) 17

i. The Objective elements have been fulfilled 18
a. Existence of a common plan between two or more persons 18
b. Essential Contribution 19
ii. The Subjective Elements have been fulfilled 19
a. The subjective elements must be fulfilled 19
2. He shall be liable under Article 25 (3)(c) of the Rome Statute 20
3. Umberto Eco shall be held Liable under Article 25 (3) (D) 22
i. The objective Elements have been fulfilled 23
ii. Subjective Elements have been Fulfilled. 25

Prayer 26

P a g e | iii Table of Contents Submission for Prosecution

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LIST OF ABBREVIATIONS

¶ Paragraph

AC Appeals Chamber

ADA Anti-Drug Authority

Art. Article

CRM Civil Rights Movement

Doc Document

ECCC Extraordinary Chambers in the Courts of Cambodia

ECTHR European Court of Human Rights

ETS European Treaty Series

HRC Human Rights Committee

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICESOC International Convention on Economic, Social and Cultural Rights

ICJ International Court of Justice

P a g e | iv List of Abbreviations Submission for Prosecution

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ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

Id. Idem

IT International Tribunal

VLR Victims’ Legal Representative

OHCHR United Nations Office of High Commissioner of Human Rights

OTP Office of the Prosecutor

PCIJ Permanent Court of International Justice

PTC Pre-Trial Chamber

ROEP Rules of Evidence and Procedure

RTC Regulations of the Court

RTP Regulations of the Office of The Prosecutor

SCD Special Committee on the Study of Demographics in Xuan

TC Trial Chamber

U.N.T.S. United Nations Treaty Series

Page |v List of Abbreviations Submission for Prosecution

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UF United Front

UKHL United Kingdom House of Lords

UNCLOS United Nations Convention on the Law of Sea

UNGA United Nations General Assembly

UNODC United Nations Office on Drugs and Crime

UNSC United Nations Security Council

US United States

v. Versus

VCLT Vienna Convention on the Law of Treaties

P a g e | vi List of Abbreviations Submission for Prosecution

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INDEX OF AUTHORITIES

ICC Cases

1. Prosecutor v. Bemba (ICC-01/05-01/08), Pre-Trial Chamber II, Decision on the

Confirmation of Charges, 15 June 2009, ¶ 351, 370 ........................................................ 19

2. Prosecutor v. Blagojevi ́cand Joki ́c, No. IT-02-60-T, Judgment, TC, 17 January 2005, ¶
726..................................................................................................................................... 20

3. Prosecutor v. Ble Goud ́e, No. ICC-02/11-02/11-186, Decision on the Confirmation of

Charges, PTC, 11 December 2014, ¶ 167 ......................................................................... 20

4. Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06- 309, Decision on the Confirmation of

Charges, ¶158 (9 June 2014)............................................................................................. 22

5. Prosecutor v. Bralo, IT-95-17-A, Judgement, Appeals Chamber, 2. April 2007, ¶ 23–25

........................................................................................................................................... 15

6. Prosecutor v. Callixte Mbarushimana, ICC-01-04-01-10, Decision on the Prosecutor’s

Application for a Warrant of Arrest, ¶41 (Dec. 16, 2011) .......................................... 22, 24

7. Prosecutor v. Delalic., No. IT-96-21-A, Judgment, AC, 20 February 2001, ¶ 352 .......... 20

8. Prosecutor v. Furundzˇija, No. IT-95-17/1-T, Judgment, TC, 10 December 1998, ¶s. 190–
249............................................................................................................................... 20, 24

9. Prosecutor v. Gbagbo, ICC- 02/11-01/11-656-R, Decision on the Confirmation of

Charges, ¶252, (12 June, 2014)......................................................................................... 22

10. Prosecutor v. Gombo, Case No. ICC-01/05-01/08-427, Situation in Central African

Republic ¶ 78 (Jun. 22, 2009) ............................................................................................. 4

11. Prosecutor v. John Pierre Bemba, Case no. ICC-01/05-01/08, Decision Pursuant to
Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against
Jean-Pierre Bemba Gombo, 15 June 2009, ¶76 .............................................................. 5, 7

P a g e | vii Index of Authorities Submission for Prosecution

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12. Prosecutor v. Katanga, ICC-01/04-01/07, Trial Chamber Judgment, note 30, ¶ 1101 1, 18,
19

13. Prosecutor v. Kunarac, Case no. IT-96-23-T & IT-96-23/1-T, Trial Chamber Judgment, ¶
428......................................................................................................................... 2, 4, 5, 11

14. Prosecutor v. Muthaura, (ICC-01/09-02/11), Pre-Trial Chamber II, Decision on the

Confirmation of Charges, 23 January 2012, ¶ 410 ........................................................... 19

15. Prosecutor v. Naletili ́c and Martinovi ́c, No. IT-98-34-T, Judgment, TC, 31 March 2003,
¶ 726.................................................................................................................................. 20

16. Prosecutor v. Ramush Haradinaj, Fourth Amended Indictment”, IT-04-84bis-PT, 21

January 201, ¶ 24 ................................................................................................................ 6

17. Prosecutor v. Ruto (ICC-01/09-01/11), Pre-Trial Chamber II, Decision on the

Confirmation of Charges, 23 January 2012, ¶ 302 ........................................................... 17

18. Prosecutor v. Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges,

¶354, (Jan. 23, 2012) ......................................................................................................... 22

19. Prosecutor v. Staki ́c, No. IT-97-24-T, Judgment, Trial Chamber, 31 July 2003 ......... 1, 17

20. Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on Confirmation of

Charges (Jan. 29, 2007) .................................................................................. 17, 18, 19, 22

21. Prosecutor v. Uhuru, Case No. ICC-01/09 -02/11, Situation in the Republic of Kenya, ¶
82 (Mar. 31, 2010) .............................................................................................................. 4

ICTY Cases

22. Prosecutor v. Blaškić, IT-95-14-A, Appeals Chamber Judgment, note 121, ¶ 101, (ICTY
July 29 2004)................................................................................................................. 3, 20

23. Prosecutor v. Kordic, Case No. IT-95-14/2, Appeals Chamber Judgment, note 94, ¶ 94,
(ICTY Dec, 17 2004) ...................................................................................................... 2, 3

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24. Prosecutor v. Krnojelac, Case no. IT-97-25-T, Trial Judgment, ¶ 59 (ICTY, Mar. 15,
2002) ................................................................................................................................. 11

25. Prosecutor v. Šljivančanin, IT-95-13/1-A, note 95, ¶ 30 (ICTY May 5 2009) ................... 3

26. Prosecutor v.Tadic, Case No. IT-94-1-AR72, Trial Chamber Judgment, note 29, ¶
649(ICTY July 15 1999) ..................................................................................... 3, 5, 17, 20

ICTR Cases

27. Prosecutor v. Aloys Simba, Case No.ICTR-2001-76-T, Judgment and Sentence (Dec. 13,
2005) ................................................................................................................................. 12

28. Prosecutor v. Bisengimana, No. ICTR-00-60-T, Judgment and Sentence, TC, 13 April
2006, ¶ 34 .......................................................................................................................... 21

29. Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial Chamber Judgment, ¶ 868, 1 December

2003..................................................................................................................................... 1

30. Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial Chamber Judgment, note 91, ¶ 871 (
December 1 2003) ......................................................................................................... 3, 12

31. Prosecutor v. Kamuhanda, No. ICTR-95-54A-T, Judgment, TC, 22 January 2004, ¶ 597
........................................................................................................................................... 21

32. Prosecutor v. Kayishema, Case no. ICTR-95-1-T, Trial Chamber Judgment, ¶133-34, (21
May 1999) ................................................................................................................... 11, 20

33. Prosecutor v. Mpambara, No. ICTR-01-65-T, Judgment, TC, 11 September 2006, ¶ 22 21

34. Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, Trial Chamber Judgment, ¶ 527
(April 28 2005) ................................................................................................................... 3

35. Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber Judgment, note 30, ¶
203–204 (Jan 27 2000)........................................................................................................ 3

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36. Prosecutor v. Muvunyi, Case No. ICTR-00-55A-T, Trial Chamber Judgment, note 30,
¶512..................................................................................................................................... 2

37. Prosecutor v. Muvunyi, No. ICTR-2000-55A-T, Judgment and Sentence, TC, 12

September 2006, ¶ 470 ...................................................................................................... 21

38. Prosecutor v. Ndahimana, No.ICTR-01 68-A, Judgment, AC, 16 December 2013, ¶ 147
........................................................................................................................................... 21

39. Prosecutor v. Semanza, Case No. ICTR-97- 20-T, Trial Chamber Judgment, ¶ 327,
(ICTY May 15 2003) ................................................................................................ 1, 3, 24

ICJ Cases

40. Prosecutor v. Mrksic, Case no. IT-95 13-R61, Vukovar Hospital Decision, ¶ 30, (April 3
1996) ................................................................................................................................... 3

National Cases

41. A-G Israel v. Eichmann, 36 I.L.R. 18, Judgment, ¶194.................................................... 17

42. British Command Paper (1921) Cmd. 1422, p. 45 ........................................................... 14

43. Llandovery Castle Case, German Supreme Court at Leipzig, Annual Digest of
International Law Cases, 1923–1924, Case No. 235 ........................................................ 14

44. R v Howe and Others (1987) CLRev 480 ......................................................................... 13

Other Cases

45. US v. Krauch et al. (case 6), in: Trials of War Criminals before the Nuremberg Military
Tribunals,Vol. III (1952) 1176.......................................................................................... 13

Books

46. Cf. Cryer, Cryer et al. (eds.), An Introduction to International Criminal Law and
Procedure (2014) 408 .................................................................................................. 13, 14

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47. Cf. Finnin, Accessorial Modes of Liability (2012) 73 et seq., 90–1................................. 20

48. Crime in Intl. Law, p. 211 ................................................................................................... 5

49. Heller and Dubber (eds.), Handbook of Com¶tive Criminal Law (2011) 593, 613 ......... 13

50. Jain, Perpetrators and Accessories in ICL (2014), 55-6 ................................................... 17

51. Jessberger, Principles of International Criminal Law (2014) 338 ...................................... 1

52. Triffterer, Hankel and Stuby (eds.), Strafgerichte gegen Menschenverbrechen (1995) 169,
229..................................................................................................................................... 20

53. Werle and Jessberger, Principles of International Criminal Law (2014) mn 644 ............. 13

54. Werle, Vo lkerstrafrecht (2012) mn 872 ............................................................................. 1

International Jurisprudence

55. Ambos (2007) 5 JICJ 171 ................................................................................................. 17

56. Ambos, Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal
Court: A Commentary (2002) 1003, 1039 ........................................................................ 14

57. Ambos, Commentary on Rome Statute of International Criminal Court ........................... 2

58. Ambos, in: Cassese, Gaeta and Jones (eds.), The Rome Statute of the International
Criminal Court: A Commentary (2002) 1003, 1040 ......................................................... 13

59. J.D Ohlin, Joint Intentions to Commit International Crimes, 11 CHI. J. OF INT’L L. 409
(2010) ................................................................................................................................ 22

60. KAI AMBOS, Superior Responsibility, in THE ROME STATUTE OF THE

INTERNATIONAL CRIMINAL COURT: A COMMENTARY 6 (Antonio Cassese et. al
ed., 2002) ............................................................................................................................ 5

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61. M. C. BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL

CRIMINAL LAW 419 (2nd ed. 1999) ............................................................................... 2

62. Meyrowitz, La repression par les tribunaux allemands des crimes contre l’humanite et de
l’appartenance a une organisation criminelle (1960) 282 ................................................... 3

Statutes and Treatises

63. 1996 ILC Draft Code, 24 (¶ 10) ........................................................................................ 20

64. Ambos, Treatise on ICL I (2013) 380 ............................................................................... 15

65. Ambos, Treatise on ICL, 75-6, (2nd edition 2014) .............................................................. 3

66. Article 8 ¶ 2 (b) (xxv) 1996 Preparatory Committee, Vol. I, note 6, p. 45, ¶ 199 .............. 9

67. Convention on the Non-Applicability of Statutory Limitations, Art. 2, Nov. 26, 1968 ..... 5

68. Geneva Convention IV supra note 43, art. 3 ...................................................................... 4

69. ICCPR Articles 6(1) & 6 (2) ....................................................................................... 15, 16

70. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I) arts. 43 and 50, June
8, 1977................................................................................................................................. 4

71. Rome Statute of the International Criminal Court, Article 7(2)(a), adopted, July 17, 1998,
2187 U.N.T.S 99 ........................................................................................................ passim

72. Treatise on International Criminal Law (2013) 358 ......................................................... 14

73. Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331 . 15

Others

74. § 42, The Law Commission, A Criminal Code for England and Wales,Vol. I(1989) ...... 13

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75. Annual report of the United Nations High Commissioner for Human Rights and reports
of the Office of the High Commissioner and the Secretary-General, Human Rights
Council, A/HRC/42/28. ¶ 8. ................................................................................................ 7

76. Bangalore Principles of Judicial Conduct ........................................................................... 7

77. F. Fontaine, Outstanding Issues for the June Prep Com: Position paper NGO coalition for
the Establishment of the International Criminal Court, Coalition for the International
Criminal Court .................................................................................................................... 5

78. LRTWC 49-51, (1948) 15................................................................................................. 20

79. Report of ILC Special Rapporteur, note 62, ¶ 93................................................................ 3

80. UN Commission on Human Rights, Commission on Human Rights Resolution 2003/43:

Independence and Impartiality of the Judiciary, Jurors and Assessors and the
Independence of Lawyers, 23 April 2003, E/CN.4/RES/2003/43 .................................... 16

81. Weigend (2012) 10 JICJ [1219] ........................................................................................ 13

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STATEMENT OF FACTS

Titan is an archipelagic country in Southeast Asia situated in the western Pacific Ocean. Titan
2
has an area of 22,550 km according to the local statistical authority and the World Bank, and as
of 2017, a population of at least ten million (10,000,000). Christianity is the most widely
followed religion of Titan whereas the majority of Titanians consider the Roman Catholic
Church as their religious guide. Titan is a member of the United Nations, the World Trade
Organization and the World Bank. It is a sovereign state, functioning as a unitary semi-
presidential republic. Further, it has signed and ratified the Rome Statute, the International
Covenant on Civil and Political Rights, the Genocide Convention, and the Geneva Conventions.

Xuan is the capital city of Titan and acts as the administrative and judicial center. In terms of
population density, the sizeable civilian population of Xuan is concentrated on its fringes where
the biggest ghetto community of Titan lies. The people living in these ghettos and rural areas
lead a starkly distinct political and cultural life – accounting for only two percent (2%) of the
total votes cast historically in the country’s general elections. Mostly, belonging to the protestant
faith, this class also ranked the lowest on the employability figures as well as the wellness and
happiness index maintained by various human rights organizations running in Titan.

Mr. Jude Steiner, a conservative, catholic, public figure and former President of Titan, governed
the administration of the country from mid-2016 till the end of 2019. During his Presidency, the
country witnessed mass atrocities, murders, torture and summary executions of thousands of
Titanians under the umbrella of his anti-drug campaign, “War on Drugs”. He is believed to have
taken absolute control over all branches of the State. The public officials who refused to follow
the directions of his office were often charged with false accusations and charges revolving
around corruption, dereliction of official duty and obstruction of justice. By the end of 2019, he
is believed to have been responsible for the execution or murder of at least thirty-thousand
civilians.

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Mr. Umberto Eco (hereinafter, the accused) is a member of the judicial infrastructure of Titan.
He and his family members have served in multiple important positions of authority under the
administration of Mr. Jude Steiner. At the time of his arrest, the accused held the position of a
senior consultant to the Ministry of Justice, Law and Order (“Ministry”), Government of Titan
while his wife, Mrs. Martha Ramge served as the chief secretary to the Ministry. His prior
engagements include serving before the ADA Tribunal as a judicial officer (2019 - 2020), the
Office of the Attorney General of Titan (2013 - 2015 and 2016 - 2018) and the Central
University of Xuan as a Professor of Criminal Justice (2007 - 2013). During the period relevant
from the perspective of the investigation undertaken by the ICC Prosecutor, the accused was
serving the ADA Tribunal situated at Xuan.

Anti-Drug Authority (“ADA”) is a a dedicated task force formed by the government to take swift
measures which include the use of aggravated police force to arrest the distribution of drugs in
all relevant communities of Titan. The ADA was directly linked with the office of the President
and enjoyed an almost autonomous status in the governmental hierarchy.

Civil Rights Movement (“CRM”) is an apolitical, non-partisan, non-profit and non-governmental

collective working under the aegis of the United Nations. This association operates as a
specialized committee responsible for providing legal aid, humanitarian assistance and
counselling in distress ridden communities of Titan.The association operates on an ad-hoc basis
and is affiliated with multiple international non-governmental organizations including the Red
Cross. The Court, admits applicant CRM as the Legal Representative of the Victims.

ALLEGATIONS RAISED

The accused is alleged to have participated in the persecution of civilian population of Titan by
illegal use of his office and influence. The accused is alleged to have denied all legal claims and
defences of individuals arrested and tortured by the police forces and the local militia working
for the government. Furthermore, he is alleged to have intentionally influenced the prosecution
of such individuals towards maximum penalty and denial of rights at his disposal.

INVESTIGATIVE FINDINGS

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(The period of investigation conducted by the Office of the ICC Prosecutor, based on due
authorizations of this Court, extends from July, 2016 to October, 2020.)

December 14, 2016 - The accused, working for the Attorney General of Titan, submits a
memorandum to the Ministry, arguing in favor of the “Unitary Executive Theory” that favored
legal interpretations which would grant unbridled powers with scarce checks and balances to the
President of Titan.

January, 2017 - The accused is appointed to the drafting committee of ADA’s “War on Drugs”
policy.

March 4, 2017 - ADA sets up its local watch-dog units called “Friends of the Neighborhood”
that were to facilitate and assist the general public and police forces to detect and eradicate all
active drug syndicates.

July, 2017 to February, 2018 - Sharp increase in violence between the police forces of Titan and
the members of the civil society alleged to be involved in drug related offenses. Thousands of
casualties in the police offensive launched against drug syndicates operating in the cities of
Titan. Communication sent from the ADA to all the police forces authorizing the use of firearms
and assault weapons against gang members who refused to observe the community guidelines
released by their territorial unit of “Friends of the Neighborhood”.

April 30, 2018 - Mr. Steiner’s political outfit gains victory in the parliamentary elections and he
passes formal legislations consolidating his executive authority.

August 3, 2018 - ADA rolls out a controversial policy under which its local units and affiliates
are authorized to arm, train and prepare a group of participating local volunteers from pre-
screened civilian communities in each district. The local militia is given a free-hand with
virtually negligible oversight. The policy is severely criticized by international human rights
organizations and the media. The policy is upheld by the highest constitutional court of Titan on
the basis of the arguments led by the accused.

Consequence: Within the next four (4) months, this policy leads to a sixty percent (60%)
increase in gun violence and the death of seven hundred (700) individuals. Civil rights

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organizations are attacked by armed mobsters with support and intelligence inputs from the local
police. Public officials including elected ministers who refuse to comply with the mandate of the
administration are publicly lynched to set an example for others.

January 10, 2019 - Mr. Steiner appoints the accused to the position of the chief judge of the
ADA Tribunal of Xuan. His appointment is in addition to the seventeen other judicial
appointments made by Mr. Steiner in that year. These individuals are believed to have been
instrumental in executing the “War on Drugs” policy.

February, 2020 - Several countries impose restrictions and sanctions on Titan. These sanctions
lead to public outcry against Mr. Steiner’s Presidency. Mr. Steiner’s administration responds to
the protests by using paramilitary forces against the protestors. Mr. Steiner, however, is forced to
resign from his position by his political party and is replaced by the vice-president of Titan, Mr.
Francis Dolcini. The new president elect is critical of the former administration.

May, 2020 - A local court based in Vortex City finds three (3) police officers guilty for the cold-
blooded murder of a seventeen (17) year old boy which sparks a public outrage. Responding to
the pressure, the present government of Titan orders re-examination of several cases involving
individuals charged with anti-drug legislations. These cases are summarily decided against the
defendants in the first instance by the judges, including the accused.

PROCEDURAL HISTORY

April 24, 2020 - CRM requests the ICC Prosecutor to open investigation against the Situation
relating to the crimes committed under the “War on Drugs” policy of the Steiner administration.

August 30, 2020 - The Prosecutor releases a preliminary report announcing that, in its opinion,
the attacks referred under it, via the Situation in Titan, pass the legal standards governing the
jurisdiction of the Court with reference to applicable provisions of the Rome Statute.

September 27, 2020 - The Pre-Trial Chamber authorizes the ICC Prosecutor to launch a formal
investigation in connection with the Situation in Titan. (Meanwhile, Mr. Steiner, in return for a
peaceful transition of power in favor of Mr. Francis Dolcini, was able to secure a safe passage

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for himself and his family members to China, thus, successfully evading arrest and trial by this
Court.

The Pre Trial Chamber has decided to commit the accused to the Trial Chamber for trial on the
charge of Crime against Humanity of Murder as confirmed.

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ISSUES PRESENTED

I.

WHETHER UMBERTO ECO HAS COMMITTED CRIME AGAINST HUMANITY OF MURDER UNDER
ARTICLE 7(1)(A) OF THE ROME STATUTE

II.

WHETHER UMBERTO ECO CAN AVAIL EXCEPTIONS TO CRIMINAL LIABILITY UNDER ROME
STATUTE

III.

WHETHER UMBERTO ECO SHALL BE HELD LIABLE UNDER INDIVIDUAL CRIMINAL

RESPONSIBILITY STIPULATED BY ARTICLE 25 (3) (A) OF THE STATUTE

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SUMMARY OF ARGUMENTS

I. THE VICTIMS WERE SUBJECTED TO CRIMES AGAINST HUMANITY OF MURDER UNDER

ARTICLE 7(1)(A) OF THE ROME STATUTE
❖ The Prosecution submits that the accused, Mr Umberto Eco has committed Crimes
Against Humanity of Murder within the meaning of Art. 7(1)(A) of the Rome Statute. It
is submitted: Firstly, the Contextual Elements of Crimes Against Humanity under the
Chapeau are fulfilled in the present case [1.] Secondly, the Acts of the Accused caused
death of the victims. [2.] Thirdly, the material elements of Crime against Humanity were
commited with intent and knowledge [3.]

II. THE ACTS OF THE ACCUSED DO NOT FALL WITHIN THE EXCEPTIONS TO CRIMINAL
LIABILITY UNDER ROME STATUTE
❖ The Prosecution submits that the acts of the accused are not exempted from attracting
liability under the Rome Statute. Firstly, the acts do not fulfil the essential requisites of
Article 31(1)(d) [1.] Secondly, the acts do not fulfil the essential requisites of Article 33
[2.]

III. THE ACCUSED UMBERTO ECO IS LIABLE UNDER THE ROME STATUTE FOR THE ACTS
COMMITTED BY HIM
❖ The Prosecution submits that the accused is liable under Article 25 of the Rome Statute.
Firstly, he shall be held liable as an co-perpetrator under Article 25(3)(a) of the Statute
[1.] Secondly, he shall be liable as an accessory to Mr. Jude Steiner under Articles
25(3)(c) and 25(3)(d) of the Statute [2. & 3.]

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ARGUMENTS IN DETAIL

I. THAT THE CRIME AGAINST HUMANITY OF MURDER HAS BEEN COMMITTED

1. THAT THE CONTEXTUAL ELEMENT OF CRIME AGAINST HUMANITY, AS STATED IN THE

CHAPEAU OF ELEMENTS OF CRIME, ARTICLE 7 HAVE BEEN FULFILLED
1. The Prosecution submits that in order to establish a charge of Crimes Against Humanity
(CAH), the following contextual elements need to be fulfilled1 : (i) The attacks were
systematic or widespread, (ii) the attacks were directed against a civilian population, (iii) the
acts of the Accused form part of the attack; (iv) the Accused must know that his or her acts
constitute part of a widespread or systematic attack directed against any civilian population2;
and (v) there existed a State policy of CAH.

i. The attacks were systematic or widespread

2. The systematic and widespread characterization of these attacks is a disjunctive requirement.3
The adjective ‘systematic’ signifies the organized nature of the acts of violence and the
improbability of their random occurrence.4 Furthermore, it shall be noted that for the purpose
of attack comprising crimes against humanity, it need not be violent nor involve use of
force,5 rather any mistreatment of civilian population suffices.6

1
Rome Statute of the International Criminal Court, Article 7(2)(a), adopted, July 17, 1998, 2187 U.N.T.S 99
(Entered into force on July 1, 2002) [hereinafter ROME STATUTE].
2
Kunarac Appeal Judgement, ¶ 85; Popovic ́ Trial Judgement, ¶ 751.
3
Prosecutor v. Savić, Case No. X-KR-07/478, 1st Instance Verdict ¶30 (Court of BiH. Jul. 3, 2009); Prosecutor v.
Samardžija, Case No. X-KRZ-05/07, 2nd Instance Verdict 14, (Court of BiH. Oct. 15, 2008).
4
Prosecutor v. Blaškic, Case no. IT-95-14-T, ¶203 (ICTY Mar 3, 2000); Prosecutor v. Tadic, Case no. IT-94-1-A
Opinion and Judgment, ¶648 (ICTY May 7 1997), Prosecutor v. Akayesu, Case no. ICTR-96-4-T, Judgment, ¶ 580
(Sept 2 1998).
5
Prosecutor v. Akayesu, Case no. ICTR-96-4-T, Trial Chamber Judgment, note 29, ¶ 581 (ICTY Sep 2 1998).
6
Kunarac (Trial Chamber Judgment), note 30, ¶ 416; Prosecutor v. Staki ́c, No. IT-97-24-T, Judgment, Trial
Chamber, 31 July 2003, ¶ 623; Prosecutor v. Semanza, Case No. ICTR-97- 20-T, Trial Chamber Judgment, ¶ 327,
(ICTY May 15 2003); Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial Chamber Judgment, ¶ 868, 1 December 2003;
Prosecutor v. Katanga, ICC-01/04-01/07, Trial Chamber Judgment, note 30, ¶ 1101; Werle, Vo lkerstrafrecht (2012)
mn 872; id. and Jessberger, Principles of International Criminal Law (2014) 338.

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3. According to the Trial Chamber in Blaškić, the ‘systematic’ requirement comprises of the
following four tests:7 (i) Existence of political objective: a plan pursuant to which the attack
is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or
weaken a community, (ii) Perpetration of the criminal act on a large scale: Act should have
been perpetrated on a very large scale over the victims or repeatedly perpetrated, (iii)
Perpetration should use resources: public, private, military or otherwise, and (iv) the
implication of a high-level political or military authority.
4. The Prosecution submits that there was a systematic attack against the civilian population of
Titan under the umbrella of “War on Drugs” policy8 which was perpetrated to destroy,
persecute and weaken the civilian population of Titan, particularly, the disenfranchised9
minority protestant community. As per reports on record, there were large-scale instances of
gun violence resulting in death,10 in addition to several instances of arson, sexual violence
and loot against the marginalized protestant community, which was touted to be the epicenter
of drug related crimes by the Steiner Administration.11 These attacks were only made
possible with the connivance of the state police,12 high-ranking public officials13 and
members of the judiciary14. Thus, the essentials mentioned in Blaškić have been fulfilled and
therefore, it is established that there was a systematic attack against the civilian population of
Titan.
5. The Prosecution, inter alia, submits that the attacks were widespread. The term ‘widespread’
refers to a massive, frequent, large-scale action, carried out collectively with considerable
seriousness and directed against a multiplicity in victims.15 It deals with quantitative nature

7
Id., Blaškic, ¶203.
8 COMPROMIS, ¶4.
9 COMPROMIS, ¶2.
10 COMPROMIS, ¶15.
11 COMPROMIS, ¶15.
12 COMPROMIS, ¶15.
13 COMPROMIS, ¶ 21.
14 COMPROMIS, ¶4.
15
Samardžija, supra note 2, p. 10; Akayesu, supra note 3, ¶ 580; Savić, supra note 2, p. 30.

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of the attack16 and refers to the scale of the attack or, equivalently, to the [large] number of
victims.17
6. The Prosecution submits that numerous attacks were carried out against civilian population
of Titan, with the help of ‘Friends of Neighborhood’ and other forces backed by the State,
which claimed the lives of 30,000 civilians18 just within a span of two years. This fulfils the
widespread requirement as this Court has recognized cases as widespread in which as low as
200 civilians were affected.19 Thus, it can be concluded that the attacks furthered by the
Steiner Administration were systematic and widespread.

ii. The acts of the Accused form part of the attack

7. The Prosecution submits that the acts of Accused in itself need not be widespread or
systematic.20 The Accused is not required to commit an attack as it only needs to be
established that his acts comprise a part of the attack21 furthered by the Steiner

16
M. C. BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 419 (2nd ed.
1999).
17
Ambos, Commentary on Rome Statute of International Criminal Court ; Prosecutor v. Kunarac, Case no. IT-96-
23-T & IT-96-23/1-T, Trial Chamber Judgment, ¶ 428; Prosecutor v. Tadic, Case no. IT-94-1-A Opinion and
Judgment, note 29, ¶648 (ICTY May 7 1997), Prosecutor v. Blaškic, Case no. IT-95-14-T, Trial Chamber Judgment,
note 30 ¶202 (ICTY Mar 3, 2000); Prosecutor v. Krnojelac, No. IT-97- 25-T, Trial Chamber Judgment, ¶57 (ICTY
Mar 15 2002), Prosecutor v. Kordic, Case No. IT-95-14/2, Appeals Chamber Judgment, note 94, ¶ 94, (ICTY Dec,
17 2004), Prosecutor v. Blaskic, No. IT-95-14-A, Appeals Chamber Judgment, ¶101 (ICTY July 29 2004);
Prosecutor v. Kunarac, Case No. IT-96-23-A, Appeals Chamber Judgment, ¶94 ( ICTY June 12 2002); Prosecutor
v. Muvunyi, Case No. ICTR-00-55A-T, Trial Chamber Judgment, note 30, ¶512; Prosecutor v. Muhimana, Case No.
ICTR-95-1B-T, Trial Chamber Judgment, ¶ 527 (April 28 2005); Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial
Chamber Judgment, note 91, ¶ 871 ( December 1 2003) ; Prosecutor v. Semanza Case No. ICTR-97-20-T, Trial
Chamber Judgment, note 91, ¶ 329 (May 15 2003); Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber
Judgment, note 30, ¶ 203–204 (Jan 27 2000).
18 COMPROMIS, ¶ 6.
19
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui.
20
Prosecutor v. Kordić, Case No. IT-95-14/2-A, Judgement, note 94, ¶ 94, (ICTY Dec 17 2004), Prosecutor v.
Blaškić, IT-95-14-A, Appeals Chamber Judgment, note 121, ¶ 101, (ICTY July 29 2004); Prosecutor v. Kunarac, IT-
96-23 & IT-96-23/1-A, Appeals Chamber Judgment, note 121, ¶ 96; Ambos, Treatise on ICL, 75-6, (2nd edition
2014); Prosecutor v. Mrksic, Case no. IT-95-13-R61, Vukovar Hospital Decision, ¶ 30, (April 3 1996).
21
Elements of Crime.

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administration. Further, the Bemba Pre-Trial Chamber stated that while determining
whether the ‘part of’ requirement was met, it would consider “the characteristics, the aims,
the nature or consequences of the act” 22. However, there must be a sufficient nexus between
the unlawful acts of the accused and the attack23 and they should not be capable of being
characterized as isolated and random conduct of an individual acting alone. To determine
whether a certain act was part of the attack or not, the test is whether it would have been less
dangerous for the victim if the attack and the underlying policy had not existed.
8. The Prosecution contends that the acts of the Accused form a part of the attack furthered by
Steiner Administration on multiple levels. Firstly, the accused has actively contributed to the
conceptualization of policies24 which eventually led to the attack on the civilian population of
Titan. Secondly, the Accused is believed to have illegally used his office and influence25 to
further the “War on Drugs” narrative of the Steiner Administration by intentionally
influencing prosecution of individuals26, denying legal claims and ensuring maximum
penalty27. Thirdly, on the basis of formal records, it is abundantly clear that the accused
issued the highest number of death penalties28 and systematically denied permission to
prosecute and dismiss cases against officials for police brutality, loot and torture,29 which
eventually bolstered the ground forces furthering the attack and gave legitimacy to the
Steiner Administration. Lastly, these acts qualify the test laid down to ascertain complicity

22
Prosecutor v.Tadic, Case No. IT-94-1-AR72, Trial Chamber Judgment, note 29, ¶ 649(ICTY July 15 1999);
Prosecutor v. Šljivančanin, IT-95-13/1-A, note 95, ¶ 30 (ICTY May 5 2009); Vukovar Hospital Decision, note 95, ¶
30; Meyrowitz, La repression par les tribunaux allemands des crimes contre l’humanite et de l’appartenance a une
organisation criminelle (1960) 282; Greenwood (1998) 2 MPYbUNL 97, 97 et seq., 135; Prosecutor v. Kordic, Case
No. IT-95-14/2, Appeals Chamber Judgment, note 94, ¶ 94, (ICTY Dec, 17 2004); Prosecutor v. Blaškić, IT-95-14-
A, Appeals Chamber Judgment, note 121, ¶ 101, (ICTY July 29 2004); Prosecutor v. Šljivančanin, IT-95-13/1-A,
note 95, ¶ 30 (ICTY May 5 2009).
23
Prosecutor v. Akayesu, Case no. ICTR-96-4-T, Trial Chamber Judgment, note 29, ¶ 579 (ICTY Sep 2 1998);
Report of ILC Special Rapporteur, note 62, ¶ 93.
24 COMPROMIS, ¶ 7.
25 COMPROMIS,¶ 8.
26 COMPROMIS,¶ 8.
27 COMPROMIS,¶ 8.
28 COMPROMIS, ¶8.
29 COMPROMIS, ¶8.

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because it is evident that the accused would not have committed such acts had there been no
underlying policy. Thus, it is unambiguously clear that the acts of the accused form a part of
the attack.

iii. The attacks were directed against a civilian population

9. The Prosecution submits that the term civilian has a very broad connotation as it includes
within its ambit all persons who are not members of the armed forces.30 The prosecution
highlights that the people affected by the attacks carried out in furtherance of the War on
Drugs policy were members of the civil society of Titan.31 Thus, it can be safely concluded
that the acts were directed against a civilian population.
10. The Prosecution further submits that ‘directed against’ means that “the civilian population
must be the primary object of the attack and not just an incidental victim of the attack”.32 The
Prosecution highlights several33 instances of violence directed against the civil society of
Titan34. In these attacks, thousands of civilians were killed35 and they were subjected to
grossly unjustified instances of denial of rights, torture and arson36 which makes it
emphatically clear that the attacks were primarily directed against the civilian population of
Titan.

30
Geneva Convention IV supra note 43, art. 3; Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts (Protocol I) arts. 43 and 50, June 8, 1977;
Prosecutor v. Uhuru, Case No. ICC-01/09 -02/11, Situation in the Republic of Kenya, ¶ 82 (Mar. 31, 2010),
Prosecutor v. Gombo, Case No. ICC-01/05-01/08-427, Situation in Central African Republic ¶ 78 (Jun. 22, 2009),
Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment, ¶ 425 (ICTY Feb. 22, 2001).
31
COMPROMIS, ¶ 14.
32
Prosecutor v. John Pierre Bemba, Case no. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ¶76; Prosecutor v
Kunarac et al., IT-96-23 & 23/2, ICTY A. Ch., 12 June 2002, ¶ 91-92.
33 COMPROMIS, ¶ 15.
34 COMPROMIS, ¶ 14.
35 COMPROMIS,¶ 6.
36 COMPROMIS,¶ 15.

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iv. The Accused had the knowledge of the attack

11. Article 7 explicitly requires that the accused must commit the acts with knowledge of the
broader widespread or systematic attack on the civilian population37. It is submitted that the
same has been established hereinafter under the mens rea argument.

v. There existed a State or organizational policy of CAH.

12. For ordinary crimes to rise to the level of CAH, they need to be backed by a State or
organizational policy.38 The standard of requirement is not that the policy should be
formalized,39 but only that the entity having de facto control40 should at least tolerate41 or
omit to prevent the attack.42 It shall be noted that the policy may not be inherently criminal
but the means to achieve non-criminal goals may involve the commission of CAH43.
Reliance is placed on the decision in Kvocˇka et al., wherein, the non-criminal plan of “the
creation of a Serbian state within the former Yugoslavia” was achieved through the
persecution of Muslims and Croats and was recognised as properly pleaded by the Appeals
Chamber.44
13. The Prosecution submits that there was a clear State and organizational policy to further
CAH. This can be established by the manner the “War on Drugs” policy was executed, which
in itself was a policy to further CAH and ensure maximum harm is done to the civilian
population of Titan. The prosecution highlights a number of factors which adumbrate the
existence of the same. Under the guise of “War on Drugs” policy, President Steiner issued
broad directions to indiscriminately enforce legislations against those in violation of them by

37
Tadić (Trial Chamber Judgment), Supra note 2, ¶ 656; Finta, 701.
38
ROME STATUTE, supra note 1, Art. 7(2); ELEMENTS OF CRIMES, supra note 1, Introduction to Art. 7.
39
Tadić, supra note 3, ¶653.
40
Convention on the Non-Applicability of Statutory Limitations, Art. 2, Nov. 26, 1968; Tadić, supra note 3, ¶¶ 654-
655.
41
KAI AMBOS, Superior Responsibility, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT: A COMMENTARY 6 (Antonio Cassese et. al ed., 2002).
42
F. Fontaine, Outstanding Issues for the June Prep Com: Position paper NGO coalition for the Establishment of the
International Criminal Court, Coalition for the International Criminal Court, http://www.igc.apc.org/icc.
43
Crime in Intl. Law, p. 211.
44
Kvocˇka Appeal Judgment, ¶ 46. 1148; Prosecutor v. Ramush Haradinaj, Fourth Amended Indictment”, IT-04-
84bis-PT, 21 January 201, ¶ 24.

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disregarding all procedural safeguards under law.45 As per official records, in the execution
of the policy, there were frequent instances of violence, torture and arson resulting in death
of at least 700 individuals.46 Thus, the apparently non-criminal anti-drug campaign was
achieved through commission of CAH.
14. Moreover, there were several organized instances including the release of inflammatory
content by the President’s office to induce hate crimes47, inception of local militia “Friends
of Neighbourhood” which was instrumental in executing48 CAH against the marginalized
protestant communities. Furthermore, omission on part of judges and prosecutors from
launching prosecution49 against those who indulged in gruesome acts amounting to CAH,
inter alia, are a testament to a clear State and organizational policy to commit CAH.

2. THAT THE ACTUS REUS LIMB IS SATISFIED

15. The Prosecution submits that a crucial element of crime against humanity of murder is that
the perpetrator killed, or caused the death of, one or more persons.50 According to the Pre-
Trial Chamber in the case Prosecutor v. Bemba, the material elements of murder were held to
be that the victim is dead and that the death must result from the act or omission of the
Accused.51 That said, it is clear that, if the perpetrator uses any medium to cause death of the
civilians, such an action would fall within the four corners of Article 7.
16. The Prosecution contends that the Accused fulfils this material element of causing death on
multiple levels. Firstly, he awarded the highest number [1700] of deaths penalties52 in
furtherance of the criminal design of Steiner, without following any due process or trial. It
shall be noted that the legislations on the basis of which he awarded these penalties were in
contravention to the mandate of International Law and conventions ratified by Titan.53

45 COMPROMIS,¶ 4.
46 COMPROMIS, ¶ 15.
47 COMPROMIS,¶ 5.
48 COMPROMIS,¶ 14.
49 COMPROMIS,¶ 8.
50
Elements of Crime.
51
Prosecutor v. Bemba, ICC PT. Ch. 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, 15 June 2009, ¶ 132.
52 COMPROMIS,¶ 8.
53 COMPROMIS,¶ 3.

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Article 6(2) of the ICCPR stipulates that a penalty of death may be imposed only for the most
serious crimes.
17. Furthermore, the UN Human Rights Commission has proclaimed that drug-related offences
and drug trafficking54, cannot be construed as most serious crimes.55 It is submitted that the
Accused awarded death penalties in crimes as inconsequential as possession of drugs56.
Moreover, out of all 30,000 deaths, many were caused by summary executions57, thus,
pointing towards the execution of death warrants issued by the accused.
18. Therefore, the legality of award of these death penalties should be ascertained on the
touchstone of the hierarchy of applicable law to this Court, which gives precedence to
conventions and principles of International Law over national laws.58
19. It is brought to the attention of the Hon’ble Chamber that the cases tried by the Accused
were also reopened59 by the subsequent Administration and the Supreme Court of Titan
overturned a trial verdict given by the Accused on the ground that the same was effectuated
by bias rendering him unfit to act as a neutral judge60. It is submitted that judicial
independence61 and impartiality62 are elementary principles of judicial conduct under
International law. Furthermore, it is reiterated that the Accused would not have done these
acts had there been no larger attack on the population by the Administration, hence, this
indiscriminate awarding of death penalties effectuated by bias smacks of foul play and
cannot be termed as lawful by any stretch of imagination.

54
UN Human Rights Council, Capital Punishment and the Implementation of the Safeguards Guaranteeing
Protection of the Rights of those Facing the Death Penalty, ¶ 8, UN Doc. A/HRC/42/28 (Aug 28, 2019).
55
Billy Holmes, on-universal Human Rights? How Article 6 (2) of the International Covenant on Civil and
Political Rights Undermines Human Right, Int’l 99 (May 24, 2020).
56 COMPROMIS, ¶ 10.
57 COMPROMIS, ¶ 4.
58
Article 21.
59
COMPROMIS,¶ 21.
60
COMPROMIS,¶ General Decription of testimony, Page 28.
61
Bangalore Principles of Judicial Conduct, value 1, ECOSOC Res. 2006/23 (July 27, 2006).
62
Bangalore Principles of Judicial Conduct, value 2, ECOSOC Res. 2006/23 (July 27, 2006).

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20. Secondly, the Accused caused death of civilians by omitting to act63 as per his duties and
obligations as a judge which included initiating prosecutions against public officials for
human rights abuses64. Furthermore, the accused denied all legal claims, defences and
rights65 to under trials who were subjected to torture66 by police officials often resulting in
death. Reliance is placed on the case of Radic´, wherein, the Accused did not exercise his
authority to prevent the guards from committing crimes and hence, it was held that his non-
intervention condoned, encouraged, and contributed to the commission and continuance of
crimes.67
21. The Prosecution clarifies that it is that not unusual for International Courts to prosecute
actions that at first are not manifestly illegal. There exist a catena of cases, wherein, Accused
were prosecuted for actions apparently within the scope of the law because those actions
turned out to facilitate the commission of crimes.68
22. Lastly, the effect of these acts and omissions was such that it inevitably bolstered the
executing forces of War on Drugs policy and gave legitimacy to the Steiner Administration
because it became clear to them that no matter what they did, they would not be held
accountable. This eventually caused thousands of deaths and the Accused shares the criminal
responsibility of the same under Article 25 of the Statute. Thus, it is established that the actus
reus requirements have been satisfied in the instant case.

3. THAT THE REQUISITE LIMB OF MENS REA IS SATISFIED

23. The Prosecution submits that the Statute stipulates that a person will be liable only if the
material elements of a crime are committed with intent and knowledge.69 Hence, the
Prosecution submits that the accused has satisfied the requisite limb of (a) intent and (b)
knowledge.

63 COMPROMIS,¶ 8.
64 COMPROMIS,¶ 8.
65 COMPROMIS,¶ 8.
66
Media report page 35 also ¶ 8.
67
Kvocˇka Trial Judgement, ¶ 538.
68
ICTR-99-52.
69
Rome Statute.

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i. The intent requirement is fulfilled.

24. This requirement is enshrined under Article 30 (2) (a) of the Statute.70 It requires the person
means to engage in the conduct and means to cause the consequence or is aware that it will
occur in the ordinary course of events.71 . For the purposes of Article 30, the term ‘conduct’
denotes positive action as well as intentional omission72.
25. The Prosecution contends that the accused meant to engage in the conduct which can be
construed from a number of factors. The Accused wilfully perpetrated the criminal design of
Steiner by formulating policies73 to further CAH which resulted in thousands of civilian
deaths74. His voluntariness can be construed from the fact that he willingly to accepted his
position on the drafting committee of war on drugs policy75 and took charge as the Chief
Judge of ADA76 as part of the Steiner campaign.
26. The Prosecution further contends that be accused harboured a similar ideology further CAH
which can be ascertained from the fact that he disregarded procedure, notions of civil rights77
and asserted his willingness78 and commitment79 to implement the vision and policies of the
Steiner Administration. Furthermore, he believed that powerful executive is imperative to
prevent the moral and ethical decay of Titan80. Therefore, he denied all legal claims and
defences to under trials81 and systematically denied permission to prosecute cases82 brought
against officials for police brutality, loot, public humiliation and torture which proves beyond
reasonable doubt that he meant to engage with the conduct by his acts and omissions out of
his own volition.
70
Rome Stature Art 30, supra note 1.
71
Art. 30 (2) (3); Lubanga, supra note 74, ¶350.
72
Article 8 ¶ 2 (b) (xxv) 1996 Preparatory Committee, Vol. I, note 6, p. 45, ¶ 199.
73 COMPROMIS, ¶ 7.
74 COMPROMIS, ¶ 6.
75 COMPROMIS, ¶ 11.
76 COMPROMIS, ¶ 16.
77 COMPROMIS, ¶ 34.
78
COMPROMIS, ¶ Page 31 Email 1
79
COMPROMIS, ¶ Page 32 Email
80 COMPROMIS, ¶ 11.
81 COMPROMIS, ¶ 8.
82 COMPROMIS, ¶ 8.

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27. The Prosecution further submits that the Accused meant to cause the consequence and was
aware that it will occur in ordinary course of events. The prosecution highlights that the
Accused was well aware of the havoc wrecked83 by the war on drugs policy, yet, the Accused
continued to be on drafting committee and subsequently agreed to be appointed as the Chief
Judge of the ADA, which further resulted in loss of lives by way of acts and omissions. It
relies on the decision rendered in Kvocˇka Trial Judgment, wherein, intent to further crimes
was inferred from the continued presence of the accused as a guard shift leader in the camp
and personal implication in the crimes of violence, harassment and intimidation against
detainees.84
28. Moreover, when the Accused was appointed as the Chief Judge of ADA, he very well knew
what the consequences of his actions and omissions would entail considering the exalted
nature of the office. Prosecution, inter alia, relies on the Kvocˇka Appeal Judgement,
wherein, position of authority was recognised relevant for establishing the awareness of the
accused about the system and his participation in enforcing or perpetuating the common
criminal purpose of the system.85 The Accused was well aware that his actions of awarding
death penalties, denying legal rights, and deliberately omitting to prosecute perpetrators of
human rights abuse86 would lead to deprivation of life and bolster eventually the
executionary forces of the war on drugs policy, which would further lead to commission of
CAH.
29. For the foregoing reasons, it is evident that the accused meant to engage in the conduct, cause
the consequence and was aware that it would occur in the ordinary course of events.

ii. The knowledge requirement is fulfilled

30. With regard to the requirement of knowledge, the ICTR in Prosecutor v. Kayishema noted as
follows:87
“The perpetrator must knowingly commit crimes against humanity in the sense that he must
understand the overall context of his act. Accordingly, actual or constructive knowledge of the

83 COMPROMIS,¶ 14.
84
Kvocˇka Trial Judgement, ¶ 499.
85
Kvocˇka Appeal Judgement, ¶ 101, Krnojelac Appeal Judgement, ¶ 96.
86
COMPROMIS,¶ 8.
87
Prosecutor v. Kayishema, Case no. ICTR-95-1-T, Trial Chamber Judgment, ¶133-34, (21 May 1999).

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broader context of the attack, meaning that the Accused must know that his act(s) is part of a
widespread or systematic attack on a civilian population and pursuant to some sort of policy or
plan”
31. The elements of CAH of murder also warrant the perpetrator to know that the conduct was
part of or intended to be a part of a widespread or systematic attack against a civilian
population.88 This standard was further reiterated in Kunarac.89 It is submitted that the
Accused knew his acts form a part of a larger attack against the civilian population as the
same was common knowledge appearing regularly in the media.90 Moreover, his contribution
in the policies,91 communication via emails92 and position of authority held during the
perpetration of the war on drugs policy indicate that the Accused was well aware of the larger
attack perpetrated against the civil population of Titan. Therefore, the Accused knew his acts
formed a part of a larger attack against the civil population of Titan.
32. The prosecution further submits that in terms of Article 30 (3) of the Statute, knowledge
would entail awareness that a consequence will occur in the ordinary course of
circumstances.93 It requires a standard of “virtual certainty”94 In addition to the above, it is
submitted that the acts of the Accused in light of the position of authority held by him and his
close contact with the executive branch of ADA95 is indicative of the fact that he was
virtually aware of the consequence of his acts. Reliance is placed on the decision rendered in
Simba, wherein, it was held that it is inconceivable to conclude that a person who had
constant contact with the perpetrators would not have known of the relevant circumstances.96

88
Elements of Crime, Art.7
89
Kunarac, Id., ¶102, 134; Prosecutor v. Krnojelac, Case no. IT-97-25-T, Trial Judgment, ¶ 59 (ICTY, Mar. 15,
2002).
90
COMPROMIS, Annexure-III
91 COMPROMIS,¶ 7.
92 COMPROMIS, p.32.
93
ROME STATUTE, supra note 2, Art. 30 (3).
94
Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute, ¶774 (Mar. 7,
2014).
95
Compromis, Annexure-I
96
Prosecutor v. Aloys Simba, Case No.ICTR-2001-76-T, Judgment and Sentence (Dec. 13, 2005).

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33. Therefore, the Accused fulfills all the requisite limbs of criminal liability, thereby, incurring
liability under Article 7(1)(a) of the Statute.

II. THAT THE ACTS OF THE ACCUSED DO NOT FALL WITHIN THE EXCEPTIONS TO
CRIMINAL LIABILITY AS STIPULATED UNDER ARTICLE 31 & ARTICLE 33 OF THE ROME
STATUTE

1. THAT THE DEFENCE UNDER ARTICLE 31(1)(D) IS NOT APPLICABLE

34. Article 31 (1) relates to the grounds for the exclusion of criminal liability for the crimes
committed within the jurisdiction of this court. The relevant ground in the instant case is
Article 31 (1) (d).
35. Article 31 (1) (d)97 stipulates a ground, wherein, a person would not be held liable if the
conduct alleged to constitute a crime within the jurisdiction of the Court has been caused by
duress resulting from a threat of imminent death or bodily harm against that person, and the
person acts necessarily and reasonably to avoid this threat. The proviso to this Article states
that the person should not intend to cause a greater harm than the one sought to be avoided.98
36. The Prosecution submits that, firstly, there was no threat of imminent death or of continuing
or imminent serious bodily harm to the accused. This defence is only available when
defendant’s freedom of will and decision is so severely limited that there is eventually no
moral choice available99. The Prosecution contends that even if the accused was
threatened100, he was threatened only to the extent that he should dismiss at least 50%
applications against illegal detentions101 but the accused went to the extent of issuing the
highest number of death warrants and denying victims basic rights and hence, willfully went
way beyond the threat. Therefore, his conduct cannot be condoned by duress as it was
evidently volitional.

97
Article 31 (1) (d) Rome Statute supra note 1.
98
Ambos, in: Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A
Commentary (2002) 1003, 1040.
99
US v. Krauch et al. (case 6), in: Trials of War Criminals before the Nuremberg Military Tribunals,Vol. III (1952)
1176; Weigend (2012) 10 JICJ [1219], 1234 et seq.
100
COMPROMIS Annexure-I.
101
COMPROMIS, Annexure-I

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37. The threat must be of the stature that the Accused cannot reasonably be expected to resist.102
103
Self-induced risks do not fall within the purview of duress Moreover, the defendant loses
his right to invoke the defence of duress, when he does not take an advantage of a reasonable
opportunity to escape.104 The Prosecution submits that the threat, if any, was self-induced
because he voluntarily took charge as Chief Judge of ADA in order to derive benefits105 and
perpetrate his ideology.106 Such threat could have been reasonably resisted as the Accused
had ample opportunity to escape by way of resignation or taking recourse to the mechanisms
involving higher judiciary. Prosecution, inter alia, relies on the Kvocˇka Trial Judgement in
which it was held that if the Accused was unwilling to resign because it would prejudice his
career, or he feared he would be punished, did not serve as a defence to criminal liability for
participating in CAH.107 Hence, the Accused cannot avail the defence provided under Article
31(1)(d).
38. The Prosecution further submits that the accused did not act necessarily and reasonably to
avoid the threat. Assuming that there was a threat, it is submitted that the accused did not
show any palpable signs of resistance whatsoever. Moreover, considering the exalted nature
of a judicial office and the inalienable elements of independence and impartiality attached to
it, the Accused was expected to show more resistance in enduring dangers than normal
citizens108. It shall be noted that had the Administration faced any resistance by the Accused,

102
§ 42, The Law Commission, A Criminal Code for England and Wales,Vol. I(1989).R v Howe and Others (1987)
CLRev 480.
103
Cf. Cryer, Cryer et al. (eds.), An Introduction to International Criminal Law and Procedure (2014) 408; Werle
and Jessberger, Principles of International Criminal Law (2014) mn 644; Heller and Dubber (eds.), Handbook of
Com¶tive Criminal Law (2011) 593, 613.
104
Lippman (2009), p. 310.
105
COMPROMIS, Annexure-I
106
COMPROMIS, Annexure-II
107
Kvocˇka Trial Judgement, ¶ 403.
108
Ambos, Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary
(2002) 1003, 1039, Treatise on International Criminal Law (2013) 358; Cryer, Cryer et al. (eds.), An Introduction to
International Criminal Law and Procedure (2014) 408.

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it is reasonable to believe that it would have been compelled to desist from its criminal
purpose.109
39. The Prosecution submits that the acts of the Accused as far as they relate to issuance of 1700
death penalties, allowing torture of prisoners, denying prosecution of officials, and ultimately
leading to thousands of deaths ensued a greater harm than the one sought to be avoided. The
consequence of not adhering to the orders, or resigning would have, at most, been removal
from service or unlawful prosecution of the accused110, however, he caused grievous bodily
harm and death of numerous civilians through his acts and omissions.
40. Therefore, the acts of the accused do not meet the requisite standard of Article 31, and hence
this defence cannot be claimed.

2. THAT THE DEFENCE UNDER ARTICLE 33 IS NOT APPLICABLE

41. Article 33 of the Statute provides for the exemption from criminal liability, if a crime is
committed in pursuance to an order of Government or of a superior, whether military or
civilian.111
42. However, the following elements are conjunctively required to be fulfilled before availing
this defence:-
(a) The person was under a legal obligation to obey orders of the Government or the
superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
43. The Prosecution submits that as far as the contention that the Accused acted as per the law
prevailing in Titan goes, the same is unsustainable before this Hon’ble Chamber on multiple
grounds. Firstly, it is not covered within the four corners of Article 33 as this Article merely
deals with an exemption when there is an ‘order’ from the government or a superior.
Reliance is placed on Article 31 of the VCLT, which mandates for Interpretation of a term in
its ordinary meaning.112 Moreover, a judge cannot be legally obligated to obey orders of the

109
Llandovery Castle Case, German Supreme Court at Leipzig, Annual Digest of International Law Cases, 1923–
1924, Case No. 235, British Command Paper (1921) Cmd. 1422, p. 45.
110
Victim Witness Number-1.
111
Article 33 Rome Statute supra note 1
112
Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331.

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government or superior in discharge of his duties which require impartiality and discretion to
act without fear or favour.113 Thus, the accused cannot claim exclusion from criminal liability
under Article 33.
44. The Prosecution further submits that a reference to national prescriptions of law cannot
relieve the subordinate from criminal liability as it flows from Article 21 that national law
can be applied only as far as it is ‘not inconsistent with this Statute’.114 Moreover, the
Accused remained legally and morally obliged to conduct himself in accordance with the
relevant norms of international humanitarian law.115 The defence that the Accused acted
under the prescription of national law cannot shield him from liability as the same is
inconsistent with the statute by virtue of being antithetical to principles of International law
and conventions ratified by Titan116, whose application takes precedence over prescription of
national laws117. Thus, there cannot be any exclusion of liability on this ground.
45. The Prosecution submits that any order which dictates a judge to act in any manner which
would prejudice the cause of justice towards the detriment of a party by arbitrarily depriving
him/her of life is manifestly unlawful as it goes against the letter and spirit of International
law118 and conventions ratified by Titan.119
46. It is submitted that the Accused was a person with relevant expertise and abundant
knowledge of law120 and legal affairs, therefore, it is reasonable to believe that he had
knowledge that the supposed order is unlawful.
47. Lastly, paragraph 2 of the Article 33 clearly lays down that an order requiring commission of
CAH of murder is manifestly unlawful121. The Accused was aware of the context in which

113
Bangalore Principles of Judicial Conduct, value 1, ECOSOC Res. 2006/23 (July 27, 2006).
114
¶ 1 [c] Article 21, Rome Statute; Ambos, Treatise on ICL I (2013) 380.
115
Prosecutor v. Bralo, IT-95-17-A, Judgement, Appeals Chamber, 2. April 2007, ¶ 23–25.
116
ICCPR Articles 6(1) & 6 (2).
117
Article 21, Rome Statute.
118
UN Commission on Human Rights, Commission on Human Rights Resolution 2003/43: Independence and
Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, 23 April
2003, E/CN.4/RES/2003/43, available at: https://www.refworld.org/docid/43f313390.html [accessed 23 April 2021].
119
ICCPR Articles 6(1).
120
COMPROMIS, ¶ 7
121 Id.

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his acts were carried out i.e., in furtherance of the main attack of CAH on the civilians.
Therefore, it is clear that the acts of accused do not fulfill the essentials of the defence under
Article 33 and hence, cannot be defended there under.

III. THAT THE ACCUSED UMBERTO ECO IS LIABLE FOR THE ACTS COMMITTED BY HIM
48. Grosso modo, an individual is criminally responsible if he perpetrates, takes part in or
attempts to commit a crime within the jurisdiction of the Court122. The contention that the
Accused acted in his official capacity as Chief Judge of ADA shall not absolve him of
criminal responsibility as Article 27 of the Statute expressly precludes any such
exemption.123 Furthermore, judges have been subjected to criminal liability for facilitating a
crime since the Nuremberg Trials.124
49. It is further submitted that a person may ‘commit’ a crime by the different modes of
participation. The Accused, in the instant case, is individually criminally responsible for his
participation in perpetration of CAH by multiple modes of participation as enumerated
below.

1. HE SHALL BE HELD LIABLE AS A CO-PERPETRATOR UNDER ARTICLE 25(3)(A)

50. The prosecution submits that the Accused incurs individual criminal responsibility for his
acts under Article 25(3)(A) of the Statute. It relies on the decision rendered in the Lubanga125
case to set out the parameters for incurring Individual Criminal Responsibility. There must be
a plurality of persons who act on the basis of an – explicit or implicit – common plan or
purpose, and the accused must take part in this plan, at least by supporting or aiding its
realization126. It is further expounded in the ratio that any person making a contribution to
the crime can be considered as a principal in the crime.127 Therefore, any person who has

122
Commentary
123
Article 27, Rome Statute.
124
USA v. Alstoetter, el al Case.
125
Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on Confirmation of Charges (Jan. 29, 2007).
126
Prosecutor v. Tadic, No. IT-94-1-A, Judgment, AC, 15 July 1999, ¶ 227.
Cassese et al., ICL (2013) 163; Ambos (2007) 5 JICJ 171; Jain, Perpetrators and Accessories in ICL (2014), 55-6.

127
Id., ¶326.

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committed a crime in conjunction with others will be deemed as “Principal Offender”.128 The
parameters for the same have been enumerated below:

i. The Objective elements have been fulfilled

a. Existence of a common plan between two or more persons

51. This element stipulates the existence of a common goal and agreement between the person(s)
involved.129 The Prosecution highlights the existence of an agreement on the common plan
between the Accused and the Steiner Administration which was to perpetrate CAH against
the civilian population of Titan, under the guise of the “War on Drugs” policy. It is reiterated
that perpetrators may agree upon the common plan, which is not inherently criminal but the
means to achieve such non-criminal goals may involve the commission of CAH130, as is the
case in the instantaneous matter. Reliance is placed on the PTC decision in Ruto, wherein,
Mr. Ruto and other members of the organization executed the non-criminal plan to evict
members of certain communities because of their perception as the PNU supporters, which
was implemented through the commission of a number of CAH.131
52. The Prosecution further submits that agreement can be proved by silent consent to reach a
common goal by coordinated cooperation and joint control over the criminal conduct.132. The
existence of an agreement can also be inferred from the subsequent concerted action of the
co-perpetrators.133 This can be ascertained from the systematic conduct of the Accused in
aiding the policies of Steiner134, multiple acknowledgements through emails135 and excerpts
from the address136 of the Accused. Thus, the existence of an agreement on the common plan
has been established.

128
A-G Israel v. Eichmann, 36 I.L.R. 18, Judgment, ¶194 (District Court, Jerusalem, 1968).
129
Stakić, supra note 15, ¶469-¶472.
130
Crime in Int Law, p. 211.
131
Prosecutor v. Ruto (ICC-01/09-01/11), Pre-Trial Chamber II, Decision on the Confirmation of Charges, 23
January 2012, ¶ 302.
132
Id., ¶440.
133
Lubanga, supra note 69, ¶345.
134
COMPROMIS, ¶ 8.
135
Annexure 1- Email.
136
Annexure -II

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a. Essential Contribution
53. There should be a coordinated essential contribution made by each co-perpetrator resulting in
the realization of the objective elements of the crime.137 In Katanga, it was held that such
essential contribution can be carried out by co-perpetrators physically or, alternatively, be
executed through another person.138
54. The Prosecution relies on the principle discussed above to establish the ‘essential role’
played by the Accused. It shall be noted that the Accused was the Chief judge of ADA,
which dealt with all cases relating to drug abuse139 and violations on part of public
officials.140 Moreover, his influence on other judges141 and systematic denial of permission to
prosecute public officials for commission of CAH142 highlights the essential role played by
the Accused in incapacitating the system of accountability and therefore, giving the ground
forces a free hand to perpetrate CAH.
55. It is further submitted that by virtue of the powers vested in his office, the Accused had the
responsibility to stop and prosecute the commission of CAH in Titan. However, per contra,
the Accused by aiding the policies of Steiner and willfully omitting to hold perpetrators
accountable, played an essential role resulting in the realization of objective elements of the
crime which would have not been possible without his contribution.

ii. The Subjective Elements have been fulfilled

a. The subjective elements must be fulfilled

56. This element of co-perpetration asserts that subjective elements with regard to crime as well
as common plan must be fulfilled.143 The Prosecution submits that the intent and knowledge

137
Lubanga, supra note 69, ¶346.
138
Katanga et al. (ICC-01/04-01/07), Pre-Trial Chamber I, Decision on the Confirmation of Charges, 30 September
2008, ¶ 521
139 COMPROMIS, ¶ 16.
140 COMPROMIS, ¶ 17.
141 COMPROMIS, ¶ 8.
142 COMPROMIS, ¶ 8.
143
Lubanga, supra note 68, ¶349.

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of the Accused with respect to the crime144 has already been established by the prosecution in
its previous submission.
57. With respect to the common plan, it is submitted that the subjective test is that the (i) co-
perpetrators are mutually aware that implementing the common plan will result in the
fulfilment of the material elements of the crimes; and yet (ii) they carry out their actions with
the purposeful will (intent) to bring them about, or are aware that in the ordinary course of
events, the fulfilment of the material elements will be a virtually certain consequence of their
actions.145
58. The prosecution submits that the Accused was fully aware that he was implementing the
common plan of Steiner which can be ascertained from the email communications and the
manner of implementation146 of the War on Drugs policy. of the Accused. Furthermore, he
had full knowledge that the consequences of his acts and omissions would entail commission
of CAH which can be inferred from the position of authority147 he held. Thus, both the
objective and subjective elements of incurring liability under Article 25(3)(A) have been
fulfilled.

2. HE SHALL BE LIABLE UNDER ARTICLE 25 (3)(C) OF THE ROME STATUTE

59. Article 25 (3) (c) of the Statute relates to the responsibility for aiding, abetting or otherwise
assisting in the commission or attempted commission of a crime within the jurisdiction of the
court.148 The purpose behind such aiding, abetting, or assistance should be the facilitation of
the crime. Moreover, these are disjunctive requirements149 and cover any act, which

144
Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, Decision on the Confirmation of Charges, 29 January 2007, ¶s
349–360.
145
Prosecutor v. Bemba (ICC-01/05-01/08), Pre-Trial Chamber II, Decision on the Confirmation of Charges, 15
June 2009, ¶s 351, 370; Katanga et al. (ICC-01/04-01/07), Pre-Trial Chamber I, Decision on the Confirmation of
Charges, 30 September 2008, ¶ 533; Prosecutor v. Muthaura, (ICC-01/09-02/11), Pre-Trial Chamber II, Decision on
the Confirmation of Charges, 23 January 2012, ¶ 410.
146
Media Report.
147
Kvocˇka Appeal Judgement, ¶ 101. See also: Krnojelac Appeal Judgement, ¶ 96.
148
Article 25 (3) (c) Rome Statute.
149
Prosecutor v. Ble Goud é , No. ICC-02/11-02/11-186, Decision on the Confirmation of Charges, PTC, 11
December 2014, ¶ 167; Triffterer, Hankel and Stuby (eds.), Strafgerichte gegen Menschenverbrechen (1995) 169,
229.

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contributes to the commission or attempted commission of a crime150. However, the

contribution must be substantial in nature.151.
60. It is further submitted that the contribution to the crime is irrespective of the fact whether the
Accused was present or removed both in time and place from the actual commission of the
crime.152 Moreover, the decisions rendered in Celebici’153 and, more recently, in Naletilic and
Martinovic154 suggest that all acts of assistance by words or acts that lend encouragement or
support’155 fall within the purview of aid and abetment. Furthermore, the assistance need not
be ‘tangible’156 and ‘moral support and encouragement’ is sufficient157.
61. The Prosecution contends that the acts of the Accused aided and assisted in giving legitimacy
to the Steiner Administration and providing substantial moral support to the forces
committing CAH. This can be proved from his biased conduct and illegal use of office by
denying legal defences and influencing prosecution of individuals towards maximum
penalty, which inevitably supported Steiner’s agenda and public perception of his policies.
62. The Prosecution further submits that “aiding and abetting” may also consist of an
omission158; It shall be noted that an act of non-interference coupled with position of
authority held by the Accused amounts to a tacit approval and encouragement to commit the

150
Cf. Finnin, Accessorial Modes of Liability (2012) 73 et seq., 90–1.
151
Prosecutor v. Tadi ́c, No. IT-94-1-T, Judgment, TC, 7 May 1997, ¶s. 674, 688–92; Prosecutor v. Delalic., No. IT-
96-21-A, Judgment, AC, 20 February 2001, ¶ 352.
1996 ILC Draft Code, 24 (¶ 10).
152
Blasˇkic´ Appeal Judgement, ¶ 48.
153
Prosecutor v. Delali ́c et al., No. IT-96-21-T, Judgment, TC, 16 November 1998, ¶s. 325–9.
154
Prosecutor v. Naletili ́c and Martinovi ́c, No. IT-98-34-T, Judgment, TC, 31 March 2003, ¶ 726; Prosecutor v.
Blagojevi ́cand Joki ́c, No. IT-02-60-T, Judgment, TC, 17 January 2005, ¶ 726.
155
Prosecutor v. Tadi ́c, No. IT-94-1-T, Judgment, TC, 7 May 1997, ¶ 687; LRTWC 49-51, (1948) 15;\ Prosecutor
v. Tadi ́c, No. IT-94-1-A, Judgment, AC, 15 July 1999, ¶ 691.
156
Prosecutor v. Kayishema and Ruzindana, No. ICTR 95-1-T, Judgment, TC, 21 May 1995, ¶ 200.
157
Prosecutor v. Furundzˇija, No. IT-95-17/1-T, Judgment, TC, 10 December 1998, ¶s. 190–249.
158
Prosecutor v. Akayesu, No. ICTR-96-4-T, Judgment, TC, 2 September 1998, ¶ 548; Prosecutor v. Kamuhanda,
No. ICTR-95-54A-T, Judgment, TC, 22 January 2004, ¶ 597; Prosecutor v. Bisengimana, No. ICTR-00-60-T,
Judgment and Sentence, TC, 13 April 2006, ¶ 34; Prosecutor v. Mpambara, No. ICTR-01-65-T, Judgment, TC, 11
September 2006, ¶ 22; Prosecutor v. Muvunyi, No. ICTR-2000-55A-T, Judgment and Sentence, TC, 12 September
2006, ¶ 470; Prosecutor v. Ndahimana, No.ICTR-01-68-A, Judgment, AC, 16 December 2013, ¶ 147.

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crime.159 Furthermore, the failure to punish for the crimes constitutes “aiding and abetting”
to commit further crimes. For an omission to qualify as “aiding and abetting”, it is necessary
to demonstrate that (i) the omission had a substantial effect on the crime in the sense that the
crime would have been substantially less likely, had the accomplice acted; and (ii) the
accomplice knew that the commission of the crime was probable and his inaction assisted
it.160
63. The Prosecution submits that had the Accused acted as per his legal obligations and held
public officials and local militia indulging in CAH accountable, it is highly unlikely that
those crimes would have occurred. The lack of accountability in the ADA due to the
omission on part of the Accused tantamount to a tacit approval and encouragement to commit
crimes which effectuated the CAH.
64. Furthermore, it is submitted that the accused knew his inaction assisted the commission of
crime by virtue of his role and authority as Chief Judge of ADA, which was responsible for
admitting all cases relating to admission of human rights violation by public officials who
were indulging in CAH. Prosecution highlights that the issue of public officials committing
inhumane acts on the civil population was common knowledge appearing regularly in the
media.161 Therefore, the Accused was aware that he had the authority to frustrate the
commission of these crimes yet he omitted to do so.
65. In conclusion, the conduct of the Accused incurs liability under Article 25(3)(c) of the
Statute.

3. UMBERTO ECO SHALL BE HELD LIABLE UNDER ARTICLE 25 (3) (D)

66. The Prosecution submits that, in addition to above, the Accused is also liable under Art.
25(3)(d) of the Rome Statute as an accessory to CAH of Murder.162
67. Art. 25(3)(d) functions as a catch-all provision as it requires less of a threshold than any other
form of liability.163 In Mbarushimana164 the PTC had set out the requirements for liability
under Art. 25(3)(d) which are enumerated as follows:

159
Brđanin Appeal Judgement, ¶ 273; Oric´ Appeal Judgement, ¶ 42; Kayishema Appeal Judgement, ¶s 201–202.
160
Mrksˇic´ and Sˇljivancˇanin Appeal Judgement, ¶s 97, 101; Oric´ Appeal Judgement, ¶ 43.
161
Media report.
162
Lubanga, ¶334.
163
J.D Ohlin, Joint Intentions to Commit International Crimes, 11 CHI. J. OF INT’L L. 409 (2010).

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i. The objective Elements have been fulfilled

68. The subparagraph (d) displays the lowest objective threshold within the different modes of
attribution of Article 25.165 As was held in Mbarushimana, the objective elements of the
crime are: (i) a crime within the jurisdiction of the Court is attempted or committed; (ii) the
commission or attempted commission of such a crime was carried out by a group of persons
acting with a common purpose; (iii) the individual contributed to the crime in any way other
than those set out in Article 25(3)(a) to (c) of the Statute.166
69. With reference to (i), it is submitted that the ratione materiae has been fulfilled, as CAH of
Murder is a crime under the Statute, which has been committed as established above. As with
reference to (ii), reference may be drawn from the pleadings submitted hitherto, where the
accused and Steiner have been proved as acting coordinately with a common purpose.
70. As with respect to (iii), the PTC in Mbarushimana designated that there must be a
‘significant’ contribution.167 As to the assessment of ‘significant’, the PTC proposed a case-
by-case analysis of the person’s conduct in the given context168 taking into account several
factors which include:
(i) the sustained nature of the participation after acquiring knowledge of the
criminality of the group’s common purpose, (ii) any efforts made to prevent criminal
activity or to impede the efficient functioning of the group’s crimes, (iii) whether the
person creates or merely executes the criminal plan, (iv) the position of the suspect in
the group or relative to the group and (v) perhaps most importantly, the role the
suspect played vis-a`-vis the seriousness and scope of the crimes committed.169
71. Firstly, the Prosecution reiterates that the Accused continued to be a part of the criminal
design of Steiner after acquiring full knowledge of the crimes being perpetrated in execution

164
Prosecutor v. Callixte Mbarushimana, ICC-01-04-01-10, Decision on the Prosecutor’s Application for a Warrant
of Arrest, ¶41 (Dec. 16, 2011).
165
Prosecutor v. Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges, ¶354, (Jan. 23, 2012).
166
Mbarushimana, ¶39.
167
Mbarushimana,¶283-¶285; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06- 309, Decision on the Confirmation
of Charges, ¶158 (9 June 2014); Prosecutor v. Gbagbo, ICC- 02/11-01/11-656-R, Decision on the Confirmation of
Charges, ¶252, (12 June, 2014).
168
Mbarushimana, ¶284; Katanga Judgment, ¶1634.
169 Id.

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of the plan. While the existence knowledge can be ascertained from his position of authority
and media reports170, the fact that he continued to favour the administration in his position as
Chief Judge proves his sustained nature of participation in the criminal design.
72. Secondly, it is submitted that the Accused did not make any palpable effort to impede the
perpetration of CAH by the administration. It shall be noted that the accused, by virtue of his
position, knew that he had the ability to frustrate the objective of the group by using his
powers to hold to account those responsible for crimes.171 However, he did not make any
effort to do so.
73. Thirdly, the Accused had not only executed the nefarious design of the Administration, but
also helped in the conceptualization of policies.172
74. Fourthly, the position of the Accused in the group was pivotal as he was the Chief Judge of
ADA, having plenary powers173 to hold to account the perpetrators of CAH in Titan.
75. Fifthly, the role played by the Accused was vital as it gave legitimacy to the Steiner
Administration by aiding the public perception of the War on Drugs policy. It shall be noted
Steiner was ousted from power174 only after International sanctions were imposed on Titan
which resulted in public criticism about his way of governance175. The prosecution submits
that the decisions rendered by the accused were used by to bolster and justify176 the illegal
acts of his Administration. This premediated177 and concerted effort inevitably gave undue
credibility to the policy and helped the perpetration of CAH to sustain.
76. Thus, it is submitted that all objective elements of a significant contribution under Art.
25(3)(D) have been fulfilled.

170
Annexure III.
171
Stakic´ Trial Judgement, paras 497–498.
172
COMPROMIS, ¶7.
173
COMPROMIS,¶ 17.
174
COMPROMIS ,¶ 20.
175
COMPROMIS, ¶ 19.
176
Annexure I
177
Annexure I

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ii. Subjective Elements have been Fulfilled.

77. It is submitted that the subjective elements are: (i) the contribution shall be intentional; and
(ii) shall either (a) be made with the aim of furthering the criminal activity or criminal
purpose of the group; or (b) in the knowledge of the intention of the group to commit the
crime.178
78. With reference to (i), it is submitted that, ‘intentional’ is to be understood as possessing the
dolus as enumerated in Art. 30 of the Statute and means in relation to a conduct - ‘to engage
in that conduct' and in relation to consequence – as ‘means to cause that consequence’ or as
being ‘aware’ that it will occur179. The same has already been proved by the Prosecution in
its earlier submission.
79. As concerning (ii), with respect to (a), the accused must possess the ‘dolus’, i.e. the specific
intention to promote the ideas and acts of the group.180 This requirement can be ascertained
by the address of the Accused on inauguration of courtroom number V181, wherein, he
expressed his willingness182 and commitment183 to implement the vision and policies of the
Steiner Administration.
80. In the alternative, with respect (b), it is not only a ‘positive knowledge’, but it is sufficient
that the participant is aware that a crime will probably be committed.184 In the instant case,
the Accused was aware that the crimes would be committed on account of the nefarious
design of the Administration and history of execution185 of the policy.
81. Thus, it is submitted that both the objective as well as subjective elements of the crime have
been fulfilled and hence, the accused is liable under Art. 25(3)(D).

178
Mbarushimana, ¶41.
179
Triffterer,, at 1014.
180
Prosecutor v. Semanza,Trial Chamber, ICTR-97-20, ¶ 313 (15 May 2003).
181
Annexure -II.
182 COMPROMIS, p.31.
183 COMPROMIS, p.32.
184
Prosecutor v. Furundzˇija, No. IT-95-17/1-T, Judgment, ¶246 (Int’l Cri. Trib. for Former Yugoslavia 10
December 1998).
185
COMPROMIS, ¶15

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PRAYER

Wherefore, in the light of the issues raised, arguments on merits, evidences supplied and
authorities relied on, it is humbly prayed that:

I. The accused, Umberto Eco, did commit the acts of Crime Against Humanity of Murder under
Article 7(1)(a) of the Rome Statute.

II. Umberto Eco is Individually Criminally Responsible and be convicted for the acts committed by
him as a Co-Perpetrator.

III. Umberto Eco is Individually Criminally Responsible and be convicted for the acts committed by
him as a willing accessory.

All of which is respectfully submitted,

COUNSELS FOR THE PROSECUTION

26 Prayer Submission for Prosecution

 SLS_07_V

SIXTH SYMBIOSIS LAW SCHOOL, PUNE – INTERNATIONAL CRIMINAL TRIAL

ADVOCACY, 2021

Before

Trial Chamber I, International Criminal Court

The Hague, The Netherlands

THE PROSECUTOR PROSECUTION

V.

UMBERTO ECO DEFENSE

DEFENDANT CHARGED WITH

Crime against Humanity of Murder under Article 7(1)(A) of the Rome Statute

WRITTEN SUBMISSIONS ON BEHALF OF THE VICTIMS

Word Count:7478
 SIXTH SYMBIOSIS LAW SCHOOL, PUNE – INTERNATIONAL CRIMINAL TRIAL ADVOCACY COMPETITION, 2021

Original: English No.: ICC-09/03-21/10

Date: [April 23, 2021]

TRIAL CHAMBER I

Before: Judge , the Presiding Judge

Judge , and

Judge ,

SITUATION IN THE REPUBLIC OF TITAN

IN THE CASE OF

THE PROSECUTOR v. UMBERTO ECO

PUBLIC

Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Umberto Eco

Page |i Source: Office of the Prosecutor

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TABLE OF CONTENTS

Table of Contents ii

List of Abbreviations iv

Index of Authorities vii

Statement of Facts xv

Issues Presented xx

Summary of Arguments xxi

Arguments in Detail 1

I. T
he Victims were Subject to Crime Against Humanity of Murder under Art.
7(1)(A)of the Rome Statute 1
1. That, The Contextual Elements of Crime Against Humanity, As Stated in the Chapeau
of Elements of Crime, Art. 7 have been Fulfilled 1
i. The attacks were systematic or widespread 1
ii. The acts of the Accused form part of the attack 3
iii. The attacks were directed against a civilian population 5
iv. The Accused had the knowledge of the attack 6
v. There existed a State or organizational policy of CAH. 6
2. That the Actus Reus Limb is Satisfied 7
3. That, the Requisite Limb of Mens Rea is Satisfied 9
i. The intent requirement is fulfilled. 9
ii. The knowledge requirement is fulfilled 12

II. Th
at the Acts of the Accused do not fall within the Exceptions to Criminal
Liability as Stipulated under Art. 31 & Art. 33 of the Rome Statute 13
1. That the defence under Article 31 is not applicable 13
i. The defence of duress under Article 31(1) (d) is not applicable 13
ii. That the defence under Article 33 is not applicable 15

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III. That The Accused Umberto Eco is Liable for the Acts Committed by Him 17

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1. He shall be held Liable as a Co-Perpetrator under Art. 25(3)(A) 18

i. The Objective Elements have been fulfilled 18
a. Existence of a common plan between two or more persons 18
b. Essential Contribution 19
ii. The Subjective Elements have been fulfilled 20
a. The subjective elements of the crime must be fulfilled 20
2. He shall be held Liable under Art. 25(3)(C) of the Rome Statute 20
3. Umberto Eco shall be held Liable under Art. 25(3)(D) 22
i. The objective elements have been fulfilled. 23
ii. Subjective elements have been fulfilled. 25

IV. Th
at the Victims of Crime Against Humanity of Murder must be appropriately
Remedied 25
1. The Victims Who Suffered this Great Harm Are Considered “Victims” Under
Applicable Law 26
i. The ICC Must Establish Principles Relating to Reparations to, or in Respect of,
Victims, Including Restitution, Compensation and Rehabilitation 27
ii. The Court May Make an Order Directly Against the Convicted Person 27
iii. The Trust Fund Maintained by the Court Should Alternatively be used for
Remedying the Victims 28

Prayer 29

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LIST OF ABBREVIATIONS

¶ Paragraph

AC Appeals Chamber

ADA Anti-Drug Authority

Art. Article

CRM Civil Rights Moment

Doc Document

ECCC Extraordinary Chambers in the Courts of Cambodia

ECtHR European Court of Human Rights

ETS European Treaty Series

HRC Human Rights Committee

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICESOC International Convention on Economic, Social and Cultural Rights

ICJ International Court of Justice

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ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

Id. Idem

IT International Tribunal

LRV Legal Representatives of Victims

OHCHR United Nations Office of High Commissioner of Human Rights

OTP Office of the Prosecutor

PCIJ Permanent Court of International Justice

PTC Pre-Trial Chamber

ROEP Rules of Evidence and Procedure

RTC Regulations of the Court

RTP Regulations of the Office of The Prosecutor

SCD Special Committee on the Study of Demographics in Xuan

TC Trial Chamber

U.N.T.S. United Nations Treaty Series

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UF United Front

UKHL United Kingdom House of Lords

UNCLOS United Nations Convention on the Law of Sea

UNGA United Nations General Assembly

UNODC United Nations Office on Drugs and Crime

UNSC United Nations Security Council

US United States

v. Versus

VCLT Vienna Convention on the Law of Treaties

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INDEX OF AUTHORITIES

ICC Cases

1. Prosecutor v. Bemba (ICC-01/05-01/08), Pre-Trial Chamber II, Decision on the

Confirmation of Charges, 15 June 2009, ¶ 351, 370 19

2. Prosecutor v. Blagojevi ́cand Joki ́c, No. IT-02-60-T, Judgment, TC, 17 January 2005, ¶
726 20

3. Prosecutor v. Ble Goud ́e, No. ICC-02/11-02/11-186, Decision on the Confirmation of

Charges, PTC, 11 December 2014, ¶ 167 19

4. Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06- 309, Decision on the Confirmation of

Charges, ¶158 (9 June 2014) 22

5. Prosecutor v. Bralo, IT-95-17-A, Judgement, Appeals Chamber, 2. April 2007, ¶ 23–25

15

6. Prosecutor v. Callixte Mbarushimana, ICC-01-04-01-10, Decision on the Prosecutor’s

Application for a Warrant of Arrest, ¶41 (Dec. 16, 2011) 21, 23

7. Prosecutor v. Delalic., No. IT-96-21-A, Judgment, AC, 20 February 2001, ¶ 352 19

8. Prosecutor v. Furundzˇija, No. IT-95-17/1-T, Judgment, TC, 10 December 1998, ¶s. 190–
249 20, 24

9. Prosecutor v. Gbagbo, ICC- 02/11-01/11-656-R, Decision on the Confirmation of

Charges, ¶252, (12 June, 2014) 22

10. Prosecutor v. Gombo, Case No. ICC-01/05-01/08-427, Situation in Central African

Republic ¶ 78 (Jun. 22, 2009) 4

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11. Prosecutor v. John Pierre Bemba, Case no. ICC-01/05-01/08, Decision Pursuant to
Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against
Jean-Pierre Bemba Gombo, 15 June 2009, ¶76 5, 7

12. Prosecutor v. Katanga, ICC-01/04-01/07, Trial Chamber Judgment, note 30, ¶ 1101 1, 18,
19

13. Prosecutor v. Kunarac, Case no. IT-96-23-T & IT-96-23/1-T, Trial Chamber Judgment, ¶
428 passim

14. Prosecutor v. Muthaura, (ICC-01/09-02/11), Pre-Trial Chamber II, Decision on the

Confirmation of Charges, 23 January 2012, ¶ 410 19

15. Prosecutor v. Naletili ́c and Martinovi ́c, No. IT-98-34-T, Judgment, TC, 31 March 2003,
¶ 726 20

16. Prosecutor v. Ramush Haradinaj, Fourth Amended Indictment”, IT-04-84bis-PT, 21

January 201, ¶ 24 6

17. Prosecutor v. Ruto (ICC-01/09-01/11), Pre-Trial Chamber II, Decision on the

Confirmation of Charges, 23 January 2012, ¶ 302 17

18. Prosecutor v. Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges,

¶354, (Jan. 23, 2012) 21

19. Prosecutor v. Staki ́c, No. IT-97-24-T, Judgment, Trial Chamber, 31 July 2003 1, 17

20. Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on Confirmation of

Charges (Jan. 29, 2007) passim

21. Prosecutor v. Uhuru, Case No. ICC-01/09 -02/11, Situation in the Republic of Kenya, ¶
82 (Mar. 31, 2010) 4

ICTY Cases

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22. Prosecutor v. Blaškić, IT-95-14-A, Appeals Chamber Judgment, note 121, ¶ 101, (ICTY
July 29 2004) 3, 19

23. Prosecutor v. Kordic, Case No. IT-95-14/2, Appeals Chamber Judgment, note 94, ¶ 94,
(ICTY Dec, 17 2004) 3

24. Prosecutor v. Krnojelac, Case no. IT-97-25-T, Trial Judgment, ¶ 59 (ICTY, Mar. 15,
2002) 11

25. Prosecutor v. Šljivančanin, IT-95-13/1-A, note 95, ¶ 30 (ICTY May 5 2009) 3

26. Prosecutor v.Tadic, Case No. IT-94-1-AR72, Trial Chamber Judgment, note 29, ¶ 649(ICTY July 15 1999)
passim

ICTR Cases

27. Prosecutor v. Aloys Simba, Case No.ICTR-2001-76-T, Judgment and Sentence (Dec. 13,
2005) 12

28. Prosecutor v. Bisengimana, No. ICTR-00-60-T, Judgment and Sentence, TC, 13 April
2006, ¶ 34 20

29. Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial Chamber Judgment, ¶ 868, 1 December

2003 1

30. Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial Chamber Judgment, note 91, ¶ 871 (
December 1 2003 ) 3, 12

31. Prosecutor v. Kamuhanda, No. ICTR-95-54A-T, Judgment, TC, 22 January 2004, ¶ 597
20

32. Prosecutor v. Kayishema, Case no. ICTR-95-1-T, Trial Chamber Judgment, ¶133-34, (21
May 1999) 11, 20

33. Prosecutor v. Mpambara, No. ICTR-01-65-T, Judgment, TC, 11 September 2006, ¶ 22 20

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34. Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, Trial Chamber Judgment, ¶ 527
(April 28 2005) 3

35. Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber Judgment, note 30, ¶
203–204 (Jan 27 2000) 3

36. Prosecutor v. Muvunyi, Case No. ICTR-00-55A-T, Trial Chamber Judgment, note 30,
¶512 3

37. Prosecutor v. Muvunyi, No. ICTR-2000-55A-T, Judgment and Sentence, TC, 12

September 2006, ¶ 470 20

38. Prosecutor v. Ndahimana, No.ICTR-01-68-A, Judgment, AC, 16 December 2013, ¶ 147

20

39. Prosecutor v. Semanza, Case No. ICTR-97- 20-T, Trial Chamber Judgment, ¶ 327,
(ICTY May 15 2003) 1, 3, 24

ICJ Cases

40. Prosecutor v. Mrksic, Case no. IT-95-13-R61, Vukovar Hospital Decision, ¶ 30, (April 3
1996) 3

National Cases

41. A-G Israel v. Eichmann, 36 I.L.R. 18, Judgment, ¶194 16

42. British Command Paper (1921) Cmd. 1422, p. 45 14

43. Llandovery Castle Case, German Supreme Court at Leipzig, Annual Digest of
International Law Cases, 1923–1924, Case No. 235 14

44. R v Howe and Others (1987) CLRev 480 13

Other Cases

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45. US v. Krauch et al. (case 6), in: Trials of War Criminals before the Nuremberg Military
Tribunals,Vol. III (1952) 1176 13

Books

46. Cf. Cryer, Cryer et al. (eds.), An Introduction to International Criminal Law and
Procedure (2014) 408 13, 14

47. Cf. Finnin, Accessorial Modes of Liability (2012) 73 et seq., 90–1 19

48. Crime in Intl. Law, p. 211 5

49. Heller and Dubber (eds.), Handbook of Com¶tive Criminal Law (2011) 593, 613 13

50. Jain, Perpetrators and Accessories in ICL (2014), 55-6 16

51. Jessberger, Principles of International Criminal Law (2014) 338 1

52. Triffterer, Hankel and Stuby (eds.), Strafgerichte gegen Menschenverbrechen (1995) 169,
229 19

53. Werle and Jessberger, Principles of International Criminal Law (2014) mn 644 13

54. Werle, Vo lkerstrafrecht (2012) mn 872 1

International Jurisprudence

55. Ambos (2007) 5 JICJ 171 16

56. Ambos, Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal
Court: A Commentary (2002) 1003, 1039 14

57. Ambos, Commentary on Rome Statute of International Criminal Court 2

58. Ambos, in: Cassese, Gaeta and Jones (eds.), The Rome Statute of the International
Criminal Court: A Commentary (2002) 1003, 1040 12

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59. J.D Ohlin, Joint Intentions to Commit International Crimes, 11 CHI. J. OF INT’L L. 409
(2010) 21

60. KAI AMBOS, Superior Responsibility, in THE ROME STATUTE OF THE

INTERNATIONAL CRIMINAL COURT: A COMMENTARY 6 (Antonio Cassese et. al
ed., 2002) 5

61. M. C. BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL

CRIMINAL LAW 419 (2nd ed. 1999) 2

62. Meyrowitz, La repression par les tribunaux allemands des crimes contre l’humanite et de
l’appartenance a une organisation criminelle (1960) 282 3

63. Theo Van Boven, & Study Concerning the Right to Restitution, Compensation and
Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental
Freedoms 11-15, in Transitional Justice: How Emerging Democracies Reckon with
Former Regimes, vol. 1, General Considerations (Neil J. Kritz ed., United States Institute
of Peace Press, 1995) 24

Statutes and Treatises

64. 1996 ILC Draft Code, 24 (¶ 10) 19

65. Ambos, Treatise on ICL I (2013) 380 15

66. Ambos, Treatise on ICL, 75-6, (2nd edition 2014) 3

67. Article 8 ¶ 2 (b) (xxv) 1996 Preparatory Committee, Vol. I, note 6, p. 45, ¶ 199 9

68. Convention on the Non-Applicability of Statutory Limitations, Art. 2, Nov. 26, 1968 5

69. Geneva Convention IV supra note 43, art. 3 4

70. ICCPR Articles 6(1) & 6 (2) 15

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71. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I) arts. 43 and 50, June
8, 1977 4

72. Rome Statute of the International Criminal Court, Article 7(2)(a), adopted, July 17, 1998,
2187 U.N.T.S 99 passim

73. Treatise on International Criminal Law (2013) 358 14

74. Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331 15

Others

75. § 42, The Law Commission, A Criminal Code for England and Wales,Vol. I(1989) 13

76. Annual report of the United Nations High Commissioner for Human Rights and reports
of the Office of the High Commissioner and the Secretary-General, Human Rights
Council, A/HRC/42/28. ¶ 8. 7

77. Bangalore Principles of Judicial Conduct 7

78. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,
G.A. Res. 40/34, Annex, U.N. Doc. A/RES/ 40/34/Annex (Nov. 29, 1985) 24

79. F. Fontaine, Outstanding Issues for the June Prep Com: Position paper NGO coalition for
the Establishment of the International Criminal Court, Coalition for the International
Criminal Court 5

80. LRTWC 49-51, (1948) 15 20

81. Report of ILC Special Rapporteur, note 62, ¶ 93 3

82. UN Commission on Human Rights, Commission on Human Rights Resolution 2003/43:

Independence and Impartiality of the Judiciary, Jurors and Assessors and the
Independence of Lawyers, 23 April 2003, E/CN.4/RES/2003/43 15

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83. Weigend (2012) 10 JICJ [1219] 13

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STATEMENT OF FACTS

Titan is an archipelagic country in Southeast Asia situated in the western Pacific Ocean. Titan
2
has an area of 22,550 km according to the local statistical authority and the World Bank, and as
of 2017, a population of at least ten million (10,000,000). Christianity is the most widely
followed religion of Titan whereas the majority of Titanians consider the Roman Catholic
Church as their religious guide. Titan is a member of the United Nations, the World Trade
Organization and the World Bank. It is a sovereign state, functioning as a unitary semi-
presidential republic. Further, it has signed and ratified the Rome Statute, the International
Covenant on Civil and Political Rights, the Genocide Convention, and the Geneva Conventions.

Xuan acts as the administrative and judicial center of Titan. In terms of population density, the
sizeable civilian population of Xuan is concentrated on its fringes where the biggest ghetto
community of Titan lies. The people living in these ghettos and rural areas lead a starkly distinct
political and cultural life – accounting for only two percent (2%) of the total votes cast
historically in the country’s general elections. Mostly, belonging to the protestant faith, this class
also ranked the lowest on the employability figures as well as the wellness and happiness index
maintained by various human rights organizations running in Titan.

Mr. Jude Steiner, a conservative, catholic, public figure and former President of Titan, governed
the administration of the country from mid-2016 till the end of 2019. During his Presidency, the
country witnessed mass atrocities, murders, torture and summary executions of thousands of
Titanians under the umbrella of his anti-drug campaign, “War on Drugs”. He is believed to have
taken absolute control over all branches of the State. The public officials who refused to follow
the directions of his office were often charged with false accusations and charges revolving
around corruption, dereliction of official duty and obstruction of justice. By the end of 2019, he
is believed to have been responsible for the execution or murder of at least thirty-thousand
civilians.

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Mr. Umberto Eco (hereinafter, the Accused) is a member of the judicial infrastructure of Titan.
He and his family members have served in multiple important positions of authority under the
administration of Mr. Jude Steiner. At the time of his arrest, the Accused held the position of a
senior consultant to the Ministry of Justice, Law and Order (“Ministry”), Government of Titan
while his wife, Mrs. Martha Ramge served as the chief secretary to the Ministry. His prior
engagements include serving before the ADA Tribunal as a judicial officer (2019 - 2020), the
Office of the Attorney General of Titan (2013 - 2015 and 2016 - 2018) and the Central
University of Xuan as a Professor of Criminal Justice (2007 - 2013). During the period relevant
from the perspective of the investigation undertaken by the ICC Prosecutor, the Accused was
serving the ADA Tribunal situated at Xuan.

Anti-Drug Authority (“ADA”) is a a dedicated task force formed by the government to take swift
measures which include the use of aggravated police force to arrest the distribution of drugs in
all relevant communities of Titan. The ADA was directly linked with the office of the President
and enjoyed an almost autonomous status in the governmental hierarchy.

Civil Rights Movement (“CRM”) is an apolitical, non-partisan, non-profit and non-governmental

collective working under the aegis of the United Nations. This association operates as a
specialized committee responsible for providing legal aid, humanitarian assistance and
counseling in distress ridden communities of Titan.The association operates on an ad-hoc basis
and is affiliated with multiple international non-governmental organizations including the Red
Cross. The Court, admits applicant CRM as the Legal Representative of the Victims.

ALLEGATIONS RAISED

The Accused is alleged to have participated in the persecution of civilian population of Titan by
illegal use of his office and influence. The Accused is alleged to have denied all legal claims and
defences of individuals arrested and tortured by the police forces and the local militia working
for the government. Furthermore, he is alleged to have intentionally influenced the VLR of such
individuals towards maximum penalty and denial of rights at his disposal.

INVESTIGATIVE FINDINGS

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(The period of investigation conducted by the Office of the ICC Prosecutor, based on due
authorizations of this Court, extends from July, 2016 to October, 2020.)

December 14, 2016 - The Accused, working for the Attorney General of Titan, submits a
memorandum to the Ministry, arguing in favor of the “Unitary Executive Theory” that favored
legal interpretations which would grant unbridled powers with scarce checks and balances to the
President of Titan.

January, 2017 - The Accused is appointed to the drafting committee of ADA’s “War on Drugs”
policy.

March 4, 2017 - ADA sets up its local watch-dog units called “Friends of the Neighborhood”
that were to facilitate and assist the general public and police forces to detect and eradicate all
active drug syndicates.

July, 2017 to February, 2018 - Sharp increase in violence between the police forces of Titan and
the members of the civil society alleged to be involved in drug related offenses. Thousands of
casualties in the police offensive launched against drug syndicates operating in the cities of
Titan. Communication sent from the ADA to all the police forces authorizing the use of firearms
and assault weapons against gang members who refused to observe the community guidelines
released by their territorial unit of “Friends of the Neighborhood”.

April 30, 2018 - Mr. Steiner’s political outfit gains victory in the parliamentary elections and he
passes formal legislations consolidating his executive authority.

August 3, 2018 - ADA rolls out a controversial policy under which its local units and affiliates
are authorized to arm, train and prepare a group of participating local volunteers from pre-
screened civilian communities in each district. The local militia is given a free-hand with
virtually negligible oversight. The policy is severely criticized by international human rights
organizations and the media. The policy is upheld by the highest constitutional court of Titan on
the basis of the arguments led by the Accused.

Consequence: Within the next four (4) months, this policy leads to a sixty percent (60%) increase
in gun violence and the death of seven hundred (700) individuals. Civil rights organizations are

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attacked by armed mobsters with support and intelligence inputs from the local police. Public
officials including elected ministers who refuse to comply with the mandate of the administration
are publicly lynched to set an example for others.

January 10, 2019 - Mr. Steiner appoints the Accused to the position of the chief judge of the
ADA Tribunal of Xuan. His appointment is in addition to the seventeen other judicial
appointments made by Mr. Steiner in that year. These individuals are believed to have been
instrumental in executing the “War on Drugs” policy.

February, 2020 - Several countries impose restrictions and sanctions on Titan. These sanctions
lead to public outcry against Mr. Steiner’s Presidency. Mr. Steiner’s administration responds to
the protests by using paramilitary forces against the protestors. Mr. Steiner, however, is forced to
resign from his position by his political party and is replaced by the vice-president of Titan, Mr.
Francis Dolcini. The new president elect is critical of the former administration.

May, 2020 - A local court based in Vortex City finds three (3) police officers guilty for the cold-
blooded murder of a seventeen (17) year old boy which sparks a public outrage. Responding to
the pressure, the present government of Titan orders re-examination of several cases involving
individuals charged with anti-drug legislations. These cases are summarily decided against the
defendants in the first instance by the judges, including the Accused.

PROCEDURAL HISTORY

April 24, 2020 - CRM requests the ICC Prosecutor to open investigation against the Situation
relating to the crimes committed under the “War on Drugs” policy of the Steiner administration.

August 30, 2020 - The Prosecutor releases a preliminary report announcing that, in its opinion,
the attacks referred under it, via the Situation in Titan, pass the legal standards governing the
jurisdiction of the Court with reference to applicable provisions of the Rome Statute.

September 27, 2020 - The Pre-Trial Chamber authorizes the ICC Prosecutor to launch a formal
investigation in connection with the Situation in Titan. (Meanwhile, Mr. Steiner, in return for a
peaceful transition of power in favor of Mr. Francis Dolcini, was able to secure a safe passage

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for himself and his family members to China, thus, successfully evading arrest and trial by this
Court.

The Pre-Trial Chamber has decided to commit the Accused to the Trial Chamber for trial on the
charge of Crime against Humanity of Murder as confirmed.

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ISSUES PRESENTED

I.

WHETHER THE VICTIMS WERE SUBJECTED TO CRIMES AGAINST HUMANITY OF MURDER

UNDER ARTICLE 7(1)(A) OF THE ROME STATUTE

II.

WHETHER UMBERTO ECO CAN AVAIL EXCEPTIONS TO CRIMINAL LIABILITY UNDER ROME
STATUTE

III.

WHETHER UMBERTO ECO SHALL BE HELD LIABLE UNDER INDIVIDUAL CRIMINAL

RESPONSIBILITY STIPULATED BY ARTICLE 25 (3) (A) OF THE STATUTE

IV.

WHETHER THE VICTIMS ARE ENTITLED TO COMPENSATION UNDER ARTICLE 75 OF THE

STATUTE

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SUMMARY OF ARGUMENTS

I. THE VICTIMS WERE SUBJECTED TO CRIMES AGAINST HUMANITY OF MURDER UNDER

ARTICLE 7(1)(A) OF THE ROME STATUTE
❖ The VLR submits that the Accused, Mr Umberto Eco has committed Crimes Against
Humanity of Murder within the meaning of Art. 7(1)(A) of the Rome Statute. It is
submitted: Firstly, the Contextual Elements of Crimes Against Humanity under the
Chapeau are fulfilled in the present case [1.] Secondly, the Acts of the Accused caused
death of the victims. [2.] Thirdly, the material elements of Crime against Humanity were
commited with intent and knowledge [3.]

II. THE ACTS OF THE ACCUSED DO NOT FALL WITHIN THE EXCEPTIONS TO CRIMINAL
LIABILITY UNDER ROME STATUTE
❖ The VLR submits that the acts of the Accused are not exempted from attracting liability
under the Rome Statute. Firstly, the acts do not fulfil the essential requisites of Article
31(1)(d) [1.] Secondly, the acts do not fulfil the essential requisites of Article 33 [2.]

III. THE ACCUSED UMBERTO ECO IS LIABLE UNDER THE ROME STATUTE FOR THE ACTS
COMMITTED BY HIM
❖ The VLR submits that the Accused is liable under Article 25 of the Rome Statute. Firstly,
he shall be held liable as an co-perpetrator under Article 25(3)(a) of the Statute [1.]
Secondly, he shall be liable as an accessory to Mr. Jude Steiner under Articles 25(3)(c)
and 25(3)(d) of the Statute [2. & 3.]

IV. THAT THE VICTIMS ARE ENTITLED TO REPARATIONS FOR THE DAMAGE CAUSED BY
THE CRIME

❖ The VLR submits that the Victims in the present case shall be properly remedied for the
damage caused by the crime. Firstly, the victims qualify the standard for receiving
restitution, compensation, and rehabilitation [1.] Secondly, the order of reparations shall
be made directly against the convict, or the Trust Fund maintained by the court shall be
used for the above-mentioned purpose [2.]

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ARGUMENTS IN DETAIL

I. THE VICTIMS WERE SUBJECT TO CRIME AGAINST HUMANITY OF MURDER UNDER ART.
7(1)(A) OF THE ROME STATUTE
1. The Accused has committed Crimes Against Humanity under Art. 7 of the Statute through
implementation of the Anti-Drug Policy of Steiner Administration. His actions amount to
Crimes Against Humanity as they fulfil all the essentials of the crime.

1. THAT, THE CONTEXTUAL ELEMENTS OF CRIME AGAINST HUMANITY, AS STATED IN

THE CHAPEAU OF ELEMENTS OF CRIME, ART. 7 HAVE BEEN FULFILLED

2. The Victim’s Legal Representative (VLR) submits that in order to establish a charge of
Crimes Against Humanity (CAH), the following contextual elements need to be fulfilled1 : (i)
The attacks were systematic or widespread, (ii) the attacks were directed against a civilian
population, (iii) the acts of the Accused form part of the attack; (iv) the Accused must know
that his or her acts constitute part of a widespread or systematic attack directed against any
civilian population2; and (v) there existed a State policy of CAH.

i. The attacks were systematic or widespread

3. The systematic and widespread characterization of these attacks is a disjunctive requirement.3
The adjective ‘systematic’ signifies the organized nature of the acts of violence and the
improbability of their random occurrence.4 Furthermore, it shall be noted that for the purpose
of attack comprising crimes against humanity, it need not be violent nor involve use of
force,5 rather any mistreatment of civilian population suffices.6

1
Rome Statute of the International Criminal Court, Article 7(2)(a), adopted, July 17, 1998, 2187 U.N.T.S 99
(Entered into force on July 1, 2002).
2
Kunarac Appeal Judgement, ¶ 85; Popovic ́ Trial Judgement, ¶ 751.
3
Prosecutor v. Savić, Case No. X-KR-07/478, 1st Instance Verdict ¶30 (Court of BiH. Jul. 3, 2009); Prosecutor v.
Samardžija, Case No. X-KRZ-05/07, 2nd Instance Verdict 14, (Court of BiH. Oct. 15, 2008).
4
Prosecutor v. Blaškic, Case no. IT-95-14-T, ¶203 (ICTY Mar 3, 2000); Prosecutor v. Tadic, Case no. IT-94-1-A
Opinion and Judgment, ¶648 (ICTY May 7 1997), Prosecutor v. Akayesu, Case no. ICTR-96-4-T, Judgment, ¶ 580
(Sept 2 1998).
5
Prosecutor v. Akayesu, Case no. ICTR-96-4-T, Trial Chamber Judgment, note 29, ¶ 581 (ICTY Sep 2 1998).

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4. According to the Trial Chamber in Blaškić, the ‘systematic’ requirement comprises of the
following four tests:7 (i) Existence of political objective: a plan pursuant to which the attack
is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or
weaken a community, (ii) Perpetration of the criminal act on a large scale: Act should have
been perpetrated on a very large scale over the victims or repeatedly perpetrated, (iii)
Perpetration should use resources: public, private, military or otherwise, and (iv) the
implication of a high-level political or military authority.
5. The VLR submits that there was a systematic attack against the civilian population of Titan
under the umbrella of “War on Drugs” policy8 which was perpetrated to destroy, persecute
and weaken the civilian population of Titan, particularly, the disenfranchised9 minority
protestant community. As per reports on record, there were large-scale instances of gun
violence resulting in death,10 in addition to several instances of arson, sexual violence and
loot against the marginalized protestant community, which was touted to be the epicenter of
drug related crimes by the Steiner Administration.11 These attacks were only made possible
with the connivance of this state police,12 high-ranking public officials13 and members of the
judiciary14. Thus, the essentials mentioned in Blaškić have been fulfilled and therefore, it is
established that there was a systematic attack against the civilian population of Titan.
6. The VLR, inter alia, submits that the attacks were widespread. The term ‘widespread’ refers
to a massive, frequent, large-scale action, carried out collectively with considerable

6
Kunarac (Trial Chamber Judgment), note 30, ¶ 416; Prosecutor v. Staki ́c, No. IT-97-24-T, Judgment, Trial
Chamber, 31 July 2003, ¶ 623; Prosecutor v. Semanza, Case No. ICTR-97- 20-T, Trial Chamber Judgment, ¶ 327,
(ICTY May 15 2003); Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial Chamber Judgment, ¶ 868, 1 December 2003;
Prosecutor v. Katanga, ICC-01/04-01/07, Trial Chamber Judgment, note 30, ¶ 1101; Werle, Vo lkerstrafrecht (2012)
mn 872; id. and Jessberger, Principles of International Criminal Law (2014) 338.
7
Id., Blaškic, ¶203.
8 COMPROMIS, ¶4.
9 COMPROMIS, ¶2.
10 COMPROMIS, ¶15.
11 COMPROMIS, ¶15.
12 COMPROMIS, ¶15.
13 COMPROMIS, ¶ 21.
14 COMPROMIS, ¶4.

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seriousness and directed against a multiplicity in victims.15 It deals with quantitative nature
of the attack16 and refers to the scale of the attack or, equivalently, to the [large] number of
victims.17
7. The VLR submits that numerous attacks were carried out against civilian population of Titan,
with the help of ‘Friends of Neighbourhood’ and other forces backed by the State, which
claimed the life of 30,000 civilians18 just within a span of two years. This fulfils the
widespread requirement as this Court has recognized cases as widespread in which as low as
200 civilians were affected.19 Thus, it can be concluded that the attacks furthered by the
Steiner Administration were systematic and widespread.

ii. The acts of the Accused form part of the attack

8. The VLR submits that the acts of Accused in itself need not be widespread or systematic.20
The Accused is not required to commit an attack as it only needs to be established that his

15
Samardžija, supra note 2, p. 10; Akayesu, supra note 3, ¶ 580; Savić, supra note 2, p. 30.
16
M. C. BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 419 (2nd ed.
1999).
17
Ambos, Commentary on Rome Statute of International Criminal Court ; Prosecutor v. Kunarac, Case no. IT-96-
23-T & IT-96-23/1-T, Trial Chamber Judgment, ¶ 428; Prosecutor v. Tadic, Case no. IT-94-1-A Opinion and
Judgment, note 29, ¶648 (ICTY May 7 1997), Prosecutor v. Blaškic, Case no. IT-95-14-T, Trial Chamber Judgment,
note 30 ¶202 (ICTY Mar 3, 2000); Prosecutor v. Krnojelac, No. IT-97- 25-T, Trial Chamber Judgment, ¶57 (ICTY
Mar 15 2002), Prosecutor v. Kordic, Case No. IT-95-14/2, Appeals Chamber Judgment, note 94, ¶ 94, (ICTY Dec,
17 2004), Prosecutor v. Blaskic, No. IT-95-14-A, Appeals Chamber Judgment, ¶101 (ICTY July 29 2004);
Prosecutor v. Kunarac, Case No. IT-96-23-A, Appeals Chamber Judgment, ¶94 ( ICTY June 12 2002); Prosecutor
v. Muvunyi, Case No. ICTR-00-55A-T, Trial Chamber Judgment, note 30, ¶512; Prosecutor v. Muhimana, Case No.
ICTR-95-1B-T, Trial Chamber Judgment, ¶ 527 (April 28 2005); Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial
Chamber Judgment, note 91, ¶ 871 (December, 1 2003); Prosecutor v. Semanza Case No. ICTR-97-20-T, Trial
Chamber Judgment, note 91, ¶ 329 (May 15 2003); Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber
Judgment, note 30, ¶ 203–204 (Jan 27 2000).
18 COMPROMIS, ¶ 6.
19
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui.
20
Prosecutor v. Kordić, Case No. IT-95-14/2-A, Judgement, note 94, ¶ 94, (ICTY Dec 17 2004), Prosecutor v.
Blaškić, IT-95-14-A, Appeals Chamber Judgment, note 121, ¶ 101, (ICTY July 29 2004); Prosecutor v. Kunarac, IT-
96-23 & IT-96-23/1-A, Appeals Chamber Judgment, note 121, ¶ 96; Ambos, Treatise on ICL, 75-6, (2nd edition
2014); Prosecutor v. Mrksic, Case no. IT-95-13-R61, Vukovar Hospital Decision, ¶ 30, (April 3 1996).

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acts comprise a part of the attack21 furthered by the Steiner administration. Further, the
Bemba Pre-Trial Chamber stated that while determining whether the ‘part of’ requirement
was met, it would consider “the characteristics, the aims, the nature or consequences of the
act” 22. However, there must be a sufficient nexus between the unlawful acts of the Accused
and the attack23 and they should not be capable of being characterized as isolated and random
conduct of an individual acting alone. To determine whether a certain act was part of the
attack or not, the test is whether it would have been less dangerous for the victim if the attack
and the underlying policy had not existed.
9. The VLR contends that the acts of the Accused form a part of the attack furthered by Steiner
Administration on multiple levels. Firstly, the Accused has actively contributed to the
conceptualization of policies24 which eventually led to the attack on the civilian population of
Titan. Secondly, the Accused is believed to have illegally used his office and influence25 to
further the “War on Drugs” narrative of the Steiner Administration by intentionally
influencing VLR of individuals26, denying legal claims and ensuring maximum penalty27.
Thirdly, on the basis of formal records, it is abundantly clear that the Accused issued the
highest number of death penalties28 and systematically denied permission to prosecute and
dismiss cases against officials for police brutality, loot and torture,29 which eventually

21
Elements of Crime, Art 7.
22
Prosecutor v.Tadic, Case No. IT-94-1-AR72, Trial Chamber Judgment, note 29, ¶ 649(ICTY July 15 1999);
Prosecutor v. Šljivančanin, IT-95-13/1-A, note 95, ¶ 30 (ICTY May 5 2009); Vukovar Hospital Decision, note 95, ¶
30; Meyrowitz, La repression par les tribunaux allemands des crimes contre l’humanite et de l’appartenance a une
organisation criminelle (1960) 282; Greenwood (1998) 2 MPYbUNL 97, 97 et seq., 135; Prosecutor v. Kordic, Case
No. IT-95-14/2, Appeals Chamber Judgment, note 94, ¶ 94, (ICTY Dec, 17 2004); Prosecutor v. Blaškić, IT-95-14-
A, Appeals Chamber Judgment, note 121, ¶ 101, (ICTY July 29 2004); Prosecutor v. Šljivančanin, IT-95-13/1-A,
note 95, ¶ 30 (ICTY May 5 2009).
23
Prosecutor v. Akayesu, Case no. ICTR-96-4-T, Trial Chamber Judgment, note 29, ¶ 579 (ICTY Sep 2 1998);
Report of ILC Special Rapporteur, note 62, ¶ 93.
24 COMPROMIS, ¶ 7.
25 COMPROMIS,¶ 8.
26 COMPROMIS,¶ 8.
27 COMPROMIS,¶ 8.
28 COMPROMIS, ¶8.
29 COMPROMIS, ¶8.

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bolstered the ground forces furthering the attack and gave legitimacy to the Steiner
Administration. Lastly, these acts qualify the test laid down to ascertain complicity because it
is evident that the Accused would not have committed such acts had there been no
underlying policy. Thus, it is unambiguously clear that the acts of the Accused form a part of
the attack.

iii. The attacks were directed against a civilian population

10. The VLR submits that the term civilian has a very broad connotation as it includes within its
ambit all persons who are not members of the armed forces.30 The VLR highlights that the
people affected by the attacks carried out in furtherance of the War on Drugs policy were
members of the civil society of Titan.31 Thus, it can be safely concluded that the acts were
directed against a civilian population.
11. The VLR further submits that ‘directed against’ means that “the civilian population must be
the primary object of the attack and not just an incidental victim of the attack”.32 The VLR
highlights several33 instances of violence directed against the civil society of Titan34. In these
attacks, thousands of civilians were killed35 and they were subjected to grossly unjustified
instances of denial of rights, torture and arson36 which makes it emphatically clear that the
attacks were primarily directed against the civilian population of Titan.

30
Geneva Convention IV supra note 43, art. 3; Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts (Protocol I) arts. 43 and 50, June 8, 1977;
Prosecutor v. Uhuru, Case No. ICC-01/09 -02/11, Situation in the Republic of Kenya, ¶ 82 (Mar. 31, 2010),
Prosecutor v. Gombo, Case No. ICC-01/05-01/08-427, Situation in Central African Republic ¶ 78 (Jun. 22, 2009),
Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment, ¶ 425 (ICTY Feb. 22, 2001).
31
COMPROMIS, ¶ 14.
32
Prosecutor v. John Pierre Bemba, Case no. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ¶76; Prosecutor v
Kunarac et al., IT-96-23 & 23/2, ICTY A. Ch., 12 June 2002, ¶ 91-92.
33 COMPROMIS, ¶ 15.
34 COMPROMIS, ¶ 14.
35 COMPROMIS,¶ 6.
36 COMPROMIS,¶ 15.

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iv. The Accused had the knowledge of the attack

12. Article 7 explicitly requires that the Accused must commit the acts with knowledge of the
broader widespread or systematic attack on the civilian population37. It is submitted that the
same has been established hereinafter under the mens rea argument.

v. There existed a State or organizational policy of CAH.

13. For ordinary crimes to rise to the level of CAH, they need to be backed by a State or
organizational policy.38 The standard of requirement is not that the policy should be
formalized,39 but only that the entity having de facto control40 should at least tolerate41 or
omit to prevent the attack.42 It shall be noted that the policy may not be inherently criminal
but the means to achieve non-criminal goals may involve the commission of CAH43.
Reliance is placed on the decision in Kvocˇka et al., wherein, the non-criminal plan of “the
creation of a Serbian state within the former Yugoslavia” was achieved through the
persecution of Muslims and Croats and was recognised as properly pleaded by the Appeals
Chamber.44
14. The VLR submits that there was a clear State and organizational policy to further CAH. This
can be established by the manner the “War on Drugs” policy was executed, which in itself
was a policy to further CAH and ensure maximum harm is done to the civilian population of
Titan. The VLR highlights a number of factors which adumbrate the existence of the same.
Under the guise of “War on Drugs” policy, President Steiner issued broad directions to
indiscriminately enforce legislations against those in violation of them by disregarding all

37
Tadić (Trial Chamber Judgment), Supra note 2, ¶ 656; Finta, 701.
38
ROME STATUTE, supra note 1, Art. 7(2); ELEMENTS OF CRIMES, supra note 1, Introduction to Art. 7.
39
Tadić, supra note 3, ¶653.
40
Convention on the Non-Applicability of Statutory Limitations, Art. 2, Nov. 26, 1968; Tadić, supra note 3, ¶¶ 654-
655.
41
KAI AMBOS, Superior Responsibility, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT: A COMMENTARY 6 (Antonio Cassese et. al ed., 2002).
42
F. Fontaine, Outstanding Issues for the June Prep Com: Position paper NGO coalition for the Establishment of the
International Criminal Court, Coalition for the International Criminal Court, http://www.igc.apc.org/icc.
43
Crime in Intl. Law, p. 211.
44
Kvocˇka Appeal Judgment, ¶ 46. 1148; Prosecutor v. Ramush Haradinaj, Fourth Amended Indictment”, IT-04-
84bis-PT, 21 January 201, ¶ 24.

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procedural safeguards under law.45 As per official records, in the execution of the policy,
there were frequent instances of violence, torture and arson resulting in death of at least 700
individuals.46 Thus, the apparently non-criminal anti-drug campaign was achieved through
commission of CAH.
15. Moreover, there were several organized instances including the release of inflammatory
content by the President’s office to induce hate crimes47, inception of local militia “Friends
of Neighbourhood” which was instrumental in executing48 CAH against the marginalized
protestant communities. Furthermore, omission on part of judges and prosecutors from
launching VLR49 against those who indulged in gruesome acts amounting to CAH, inter alia,
are a testament to a clear State and organizational policy to commit CAH.

2. THAT THE ACTUS REUS LIMB IS SATISFIED

16. The VLR submits that a crucial element of crime against humanity of murder is that the
perpetrator killed, or caused the death of, one or more persons.50 According to the Pre-Trial
Chamber in the case Prosecutor v. Bemba, the material elements of murder were held to be
that the victim is dead and that the death must result from the act or omission of the
Accused.51 That said, it is clear that, if the perpetrator uses any medium to cause death of the
civilians, such an action would fall within the four corners of Article 7.
17. The VLR contends that the Accused fulfils this material element of causing death on multiple
levels. Firstly, he awarded the highest number [1700] of deaths penalties52 in furtherance of
the criminal design of Steiner, without following any due process or trial. It shall be noted
that the legislations on the basis of which he awarded these penalties were in contravention to

45 COMPROMIS,¶ 4.
46 COMPROMIS, ¶ 15.
47 COMPROMIS,¶ 5.
48 COMPROMIS,¶ 14.
49 COMPROMIS,¶ 8.
50
Elements of Crime, Art. 7
51
Prosecutor v. Bemba, ICC PT. Ch. 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, 15 June 2009, ¶ 132.
52 COMPROMIS,¶ 8.

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the mandate of International Law and conventions ratified by Titan.53 Article 6(2) of the
ICCPR stipulates that a penalty of death may be imposed only for the most serious crimes.
18. Furthermore, the UN Human Rights Commission has proclaimed that drug-related offences
and drug trafficking54, cannot be construed as most serious crimes. It is submitted that the
Accused awarded death penalties in crimes as inconsequential as possession of drugs55.
Moreover, out of all 30,000 deaths, many were caused by summary executions56, thus,
pointing towards the execution of death warrants issued by the Accused.
19. Therefore, the legality of award of these death penalties should be ascertained on the
touchstone of the hierarchy of applicable law to this Court, which gives precedence to
conventions and principles of International Law over national laws.57
20. It is brought to the attention of the Hon’ble Chamber that the cases tried by the Accused
were also reopened58 by the subsequent Administration and the Supreme Court of Titan
overturned a trial verdict given by the Accused on the ground that the same was effectuated
by bias rendering him unfit to act as a neutral judge59. It is submitted that judicial
independence60 and impartiality61 are elementary principles of judicial conduct under
International law. Furthermore, it is reiterated that the Accused would not have done these
acts had there been no larger attack on the population by the Administration, hence, this
indiscriminate awarding of death penalties effectuated by bias smacks of foul play and
cannot be termed as lawful by any stretch of imagination.
21. Secondly, the Accused caused death of civilians by omitting to act62 as per his duties and
obligations as a judge which included initiating prosecutions against public officials for

53 COMPROMIS,¶ 3.
54
Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High
Commissioner and the Secretary-General, Human Rights Council, A/HRC/42/28. ¶ 8.
55 COMPROMIS, ¶ 10.
56 COMPROMIS, ¶ 4.
57
Article 21 of Rome Statute
58
COMPROMIS,¶ 21.
59
COMPROMIS,¶ General Decription of testimony, Page 28.
60
Bangalore Principles of Judicial Conduct, value 1, ECOSOC Res. 2006/23 (July 27, 2006).
61
Bangalore Principles of Judicial Conduct, value 2, ECOSOC Res. 2006/23 (July 27, 2006).
62
COMPROMIS,¶ 8.

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human rights abuses63. Furthermore, the Accused denied all legal claims, defences and
rights64 to under trials who were subjected to torture65 by police officials often resulting in
death. Reliance is placed on the case of Radic´, wherein, the Accused did not exercise his
authority to prevent the guards from committing crimes and hence, it was held that his non-
intervention condoned, encouraged, and contributed to the commission and continuance of
crimes.66
22. The VLR clarifies that it is that not unusual for International Courts to prosecute actions that
at first are not manifestly illegal. There exist a catena of cases, wherein, Accused were
prosecuted for actions apparently within the scope of the law because those actions turned
out to facilitate the commission of crimes.67
23. Lastly, the effect of these acts and omissions was such that it inevitably bolstered the
executing forces of War on Drugs policy and gave legitimacy to the Steiner Administration
because it became clear to them that no matter what they did, they would not be held
accountable. This eventually caused thousands of deaths and the Accused shares the criminal
responsibility of the same under Article 25 of the Statute. Thus, it is established that the actus
reus requirements have been satisfied in the instant case.

3. THAT, THE REQUISITE LIMB OF MENS REA IS SATISFIED

24. Zit is humbly submitted that the Statute stipulates that a person will be liable only if the
material elements of a crime are committed with intent and knowledge.68 Hence, the VLR
submits that the Accused has satisfied the requisite limb of (a) intent and (b) knowledge.

i. The intent requirement is fulfilled.

25. This requirement is enshrined under Article 30 (2) (a) of the Statute.69 It requires the person
means to engage in the conduct and means to cause the consequence or is aware that it will

63 COMPROMIS,¶ 8.
64 COMPROMIS,¶ 8.
65
Media report page 35 also ¶ 8.
66
Kvocˇka Trial Judgement, ¶ 538.
67
ICTR-99-52.
68
Rome Statute.
69
Rome Stature Art 30, supra note 1.

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occur in the ordinary course of events.70 . For the purposes of Article 30, the term ‘conduct’
denotes positive action as well as intentional omission71.
26. The VLR contends that the Accused meant to engage in the conduct which can be construed
from a number of factors. The Accused wilfully perpetrated the criminal design of Steiner by
formulating policies72 to further CAH which resulted in thousands of civilian deaths73. His
voluntariness can be construed from the fact that he willingly to accepted his position on the
drafting committee of War on Drugs policy74 and took charge as the Chief Judge of ADA75
as part of the Steiner campaign.
27. The VLR further contends that be Accused harboured a similar ideology further CAH which
can be ascertained from the fact that he disregarded procedure, notions of civil rights76 and
asserted his willingness77 and commitment78 to implement the vision and policies of the
Steiner Administration. Furthermore, he believed that powerful executive is imperative to
prevent the moral and ethical decay of Titan79. Therefore, he denied all legal claims and
defences to under trials80 and systematically denied permission to prosecute cases81 brought
against officials for police brutality, loot, public humiliation and torture which proves beyond
reasonable doubt that he meant to engage with the conduct by his acts and omissions out of
his own volition.
28. The VLR further contends that be Accused harboured a similar ideology to further CAH
which can be ascertained from the fact that he disregarded procedure, notions of civil rights82

70
Art. 30 (2) (3); Lubanga, supra note 74, ¶350.
71
Article 8 ¶ 2 (b) (xxv) 1996 Preparatory Committee, Vol. I, note 6, p. 45, ¶ 199.
72 COMPROMIS, ¶ 7.
73 COMPROMIS, ¶ 6.
74 COMPROMIS, ¶ 11.
75 COMPROMIS, ¶ 16.
76 COMPROMIS, ¶ 34.
77 COMPROMIS, p.31.
78 COMPROMIS, p.32.
79 COMPROMIS, ¶ 11.
80 COMPROMIS, ¶ 8.
81 COMPROMIS, ¶ 8.
82 COMPROMIS, p.32.

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and asserted his willingness83 and commitment84 to implement the vision and policies of the
Steiner Administration. Furthermore, he believed that powerful executive is imperative to
prevent the moral and ethical decay of Titan85. Therefore, he denied all legal claims and
defences to under trials86 and systematically denied permission to prosecute cases87 brought
against officials for police brutality, loot, public humiliation and torture which proves that he
meant to engage with the conduct by his acts and omissions.
29. The VLR further submits that the Accused meant to cause the consequence and was aware
that it will occur in ordinary course of events. The VLR highlights that the Accused was well
aware of the havoc wrecked88 by the War on Drugs policy, yet, the Accused continued to be
on drafting committee and subsequently agreed to be appointed as the Chief Judge of the
ADA, which further resulted in loss of lives by way of acts and omissions. It relies on the
decision rendered in Kvocˇka Trial Judgment, wherein, intent to further crimes was inferred
from the continued presence of the Accused as a guard shift leader in the camp and personal
implication in the crimes of violence, harassment and intimidation against detainees.89
30. Moreover, when the Accused was appointed as the Chief Judge of ADA, he very well knew
what the consequences of his actions and omissions would entail considering the exalted
nature of the office. VLR, inter alia, relies on the Kvocˇka Appeal Judgement, wherein,
position of authority was recognised relevant for establishing the awareness of the Accused
about the system and his participation in enforcing or perpetuating the common criminal
purpose of the system.90 The Accused was well aware that his actions of awarding death
penalties, denying legal rights, and deliberately omitting to prosecute perpetrators of human
rights abuse91 would lead to deprivation of life and bolster eventually the executionary forces
of the War on Drugs policy, which would further lead to commission of CAH.

83 COMPROMIS, p.31.
84 COMPROMIS, p.32.
85 COMPROMIS,¶ 11.
86 COMPROMIS,¶ 8.
87 COMPROMIS,¶ 8.
88 COMPROMIS,¶ 14.
89
Kvocˇka Trial Judgement, ¶ 499.
90
Kvocˇka Appeal Judgement, ¶ 101. See also: Krnojelac Appeal Judgement, ¶ 96.
91
COMPROMIS,¶ 8.

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31. For the foregoing reasons, it is evident that the Accused meant to engage in the conduct,
cause the consequence and was aware that it would occur in the ordinary course of events.

ii. The knowledge requirement is fulfilled

32. With regard to the requirement of knowledge, the ICTR in Prosecutor v. Kayishema noted as
follows:92
“The perpetrator must knowingly commit crimes against humanity in the sense that he must
understand the overall context of his act. Accordingly, actual or constructive knowledge of the
broader context of the attack, meaning that the Accused must know that his act(s) is part of a
widespread or systematic attack on a civilian population and pursuant to some sort of policy or
plan”
33. The elements of CAH of murder also warrant the perpetrator to know that the conduct was
part of or intended to be a part of a widespread or systematic attack against a civilian
population.93 This standard was further reiterated in Kunarac.94 It is submitted that the
Accused knew his acts form a part of a larger attack against the civilian population as the
same was common knowledge appearing regularly in the media.95 Moreover, his contribution
in the policies,96 communication via emails97 and position of authority held98 during the
perpetration of the War on Drugs policy indicate that the Accused was well aware of the
larger attack perpetrated against the civil population of Titan. Therefore, the Accused knew
his acts formed a part of a larger attack against the civil population of Titan.
34. The VLR further submits that in terms of Article 30 (3) of the Statute, knowledge would
entail awareness that a consequence will occur in the ordinary course of circumstances.99 It

92
Prosecutor v. Kayishema, Case no. ICTR-95-1-T, Trial Chamber Judgment, ¶133-34, (21 May 1999).
93
Elements of Crime.
94
Kunarac, Id., ¶102, 134; Prosecutor v. Krnojelac, Case no. IT-97-25-T, Trial Judgment, ¶ 59 (ICTY, Mar. 15,
2002).
95
COMPROMIS, Media Reports.
96 COMPROMIS,¶ 7.
97 COMPROMIS, p.32.
98
Supra note 85.
99
ROME STATUTE, supra note 2, Art. 30 (3).

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requires a standard of “virtual certainty”.100 In addition to the above, it is submitted that the
acts of the Accused in light of the position of authority held by him and his close contact with
the executive branch of ADA101 is indicative of the fact that he was virtually aware of the
consequence of his acts. Reliance is placed on the decision rendered in Simba, wherein, it
was held that it is inconceivable to conclude that a person who had constant contact with the
perpetrators would not have known of the relevant circumstances.102
35. Therefore, the Accused fulfills all the requisite limbs of criminal liability, thereby, incurring
liability under Article 7(1)(a) of the Statute.

II. THAT THE ACTS OF THE ACCUSED DO NOT FALL WITHIN THE EXCEPTIONS TO
CRIMINAL LIABILITY AS STIPULATED UNDER ART. 31 & ART. 33 OF THE ROME
STATUTE

1. THAT THE DEFENCE UNDER ARTICLE 31 IS NOT APPLICABLE

36. Article 31 (1) relates to the grounds for excluding criminal liability for the crimes committed
within the jurisdiction of this court. The relevant ground in the instant case is Article 31 (1)
(d).

i. The defence of duress under Article 31(1) (d) is not applicable

37. Article 31 (1) (d)103 stipulates a ground, wherein, a person would not be held liable if the
conduct alleged to constitute a crime within the jurisdiction of the Court has been caused by
duress resulting from a threat of imminent death or bodily harm against that person, and the
person acts necessarily and reasonably to avoid this threat. The proviso to this Article states
that the person should not intend to cause a greater harm than the one sought to be
avoided.104

100
Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute, ¶774 (Mar. 7,
2014).
101
Annexure-I
102
Prosecutor v. Aloys Simba, Case No.ICTR-2001-76-T, Judgment and Sentence (Dec. 13, 2005).
103
Article 31 (1) (d) Rome Statute supra note 1.
104
Ambos, in: Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A
Commentary (2002) 1003, 1040.

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38. The VLR submits that, firstly, there was no threat of imminent death or of continuing or
imminent serious bodily harm to the Accused. This defence is only available when
defendant’s freedom of will and decision is so severely limited that there is eventually no
moral choice available105. The VLR contends that even if the Accused was threatened106, he
was threatened only to the extent that he should dismiss at least 50% applications against
illegal detentions107 but the Accused went to the extent of issuing the highest number of
death warrants and denying victims basic rights and hence, willfully went way beyond the
threat. Therefore, his conduct cannot be condoned by duress as it was evidently volitional.
39. The threat must be of the stature that the Accused cannot reasonably be expected to resist.108
109
Self-induced risks do not fall within the purview of duress Moreover, the defendant loses
his right to invoke the defence of duress, when he does not take an advantage of a reasonable
opportunity to escape.110 The VLR submits that the threat, if any, was self-induced because
he voluntarily took charge as Chief Judge of ADA in order to derive benefits111 and
perpetrate his ideology.112 Such threat could have been reasonably resisted as the Accused
had ample opportunity to escape by way of resignation or taking recourse to the mechanisms
involving higher judiciary. VLR, inter alia, relies on the Kvocˇka Trial Judgement in which it
was held that if the Accused was unwilling to resign because it would prejudice his career, or
he feared he would be punished, did not serve as a defence to criminal liability for
participating in CAH.113 Hence, the Accused cannot avail the defence provided under Article
31(1)(d).
105
US v. Krauch et al. (case 6), in: Trials of War Criminals before the Nuremberg Military Tribunals,Vol. III (1952)
1176; Weigend (2012) 10 JICJ [1219], 1234 et seq.
106
Email from Chief of ADA.
107
Email from Chief of ADA.
108
§ 42, The Law Commission, A Criminal Code for England and Wales,Vol. I(1989).R v Howe and Others (1987)
CLRev 480.
109
Cf. Cryer, Cryer et al. (eds.), An Introduction to International Criminal Law and Procedure (2014) 408; Werle
and Jessberger, Principles of International Criminal Law (2014) mn 644; Heller and Dubber (eds.), Handbook of
Com¶tive Criminal Law (2011) 593, 613.
110
Lippman (2009), p. 310.
111
COMPROMIS, p. 33.
112
COMPROMIS, Annexure-II.
113
Kvocˇka Trial Judgement, ¶ 403.

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40. The VLR further submits that the Accused did not act necessarily and reasonably to avoid
the threat. Assuming that there was a threat, it is submitted that the Accused did not show
any palpable signs of resistance whatsoever. Moreover, considering the exalted nature of a
judicial office and the inalienable elements of independence and impartiality attached to it,
the Accused was expected to show more resistance in enduring dangers than normal
citizens114. It shall be noted that had the Administration faced any resistance by the Accused,
it is reasonable to believe that it would have been compelled to desist from its criminal
purpose.115
41. The VLR submits that the acts of the Accused as far as they relate to issuance of 1700 death
penalties, allowing torture of prisoners, denying prosecution of officials, and ultimately
leading to thousands of deaths ensued a greater harm than the one sought to be avoided. The
consequence of not adhering to the orders, or resigning would have, at most, been removal
from service or unlawful prosecution of the Accused116, however, he caused grievous bodily
harm and death of numerous civilians through his acts and omissions.
42. Therefore, the acts of the Accused do not meet the requisite standard of Article 31, and hence
this defence cannot be claimed.

ii. That the defence under Article 33 is not applicable

43. Article 33 of the Statute provides for the exemption from criminal liability, if a crime is
committed in pursuance to an order of Government or of a superior, whether military or
civilian.117
44. However, the following elements are conjunctively required to be fulfilled before availing
this defence:-
(a) The person was under a legal obligation to obey orders of the Government or the
superior in question;

114
Ambos, Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary
(2002) 1003, 1039, Treatise on International Criminal Law (2013) 358; Cryer, Cryer et al. (eds.), An Introduction to
International Criminal Law and Procedure (2014) 408.
115
Llandovery Castle Case, German Supreme Court at Leipzig, Annual Digest of International Law Cases, 1923–
1924, Case No. 235, British Command Paper (1921) Cmd. 1422, p. 45.
116
Victim Witness Number-1.
117
Article 33 Rome Statute supra note 1.

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(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
45. The VLR submits that as far as the contention that the Accused acted as per the law
prevailing in Titan goes, the same is unsustainable before this Hon’ble Chamber on multiple
grounds. Firstly, it is not covered within the four corners of Article 33 as this Article merely
deals with an exemption when there is an ‘order’ from the government or a superior.
Reliance is placed on Article 31 of the VCLT, which mandates for Interpretation of a term in
its ordinary meaning.118 Moreover, a judge cannot be legally obligated to obey orders of the
government or superior in discharge of his duties which require impartiality and discretion to
act without fear or favour.119 Thus, the Accused cannot claim exclusion from criminal
liability under Article 33.
46. The VLR further submits that a reference to national prescriptions of law cannot relieve the
subordinate from criminal liability as it flows from Article 21 that national law can be
applied only as far as it is ‘not inconsistent with this Statute’.120 Moreover, the Accused
remained legally and morally obliged to conduct himself in accordance with the relevant
norms of international humanitarian law.121 The defence that the Accused acted under the
prescription of national law cannot shield him from liability as the same is inconsistent with
the statute by virtue of being antithetical to principles of International law and conventions
ratified by Titan122, whose application takes precedence over prescription of national laws123.
Thus, there cannot be any exclusion of liability on this ground.
47. The VLR submits that any order which dictates a judge to act in any manner which would
prejudice the cause of justice towards the detriment of a party by arbitrarily depriving

118
Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331.
119
Bangalore Principles of Judicial Conduct, value 2, ECOSOC Res. 2006/23 (July 27, 2006).
120
¶ 1 [c] Article 21, Rome Statute; Ambos, Treatise on ICL I (2013) 380.
121
Prosecutor v. Bralo, IT-95-17-A, Judgement, Appeals Chamber, 2. April 2007, ¶ 23–25.
122
ICCPR Articles 6(1) & 6 (2).
123
Article 21, Rome Statute.

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him/her of life is manifestly unlawful as it goes against the letter and spirit of International
law124 and conventions ratified by Titan.125
48. It is submitted that the Accused was a person with relevant expertise and abundant
knowledge of law126 and legal affairs, therefore, it is reasonable to believe that he had
knowledge that the supposed order is unlawful.
49. Lastly, paragraph 2 of the Article 33 clearly lays down that an order requiring commission of
CAH of murder is manifestly unlawful127. The Accused was aware of the context in which
his acts were carried out i.e., in furtherance of the main attack of CAH on the civilians.
Therefore, it is clear that the acts of Accused do not fulfill the essentials of the defence under
Article 33 and hence, cannot be defended there under.

III. THAT THE ACCUSED UMBERTO ECO IS LIABLE FOR THE ACTS COMMITTED BY HIM
50. Grosso modo, an individual is criminally responsible if he perpetrates, takes part in or
attempts to commit a crime within the jurisdiction of the Court. The contention that the
Accused acted in his official capacity as Chief Judge of ADA shall not absolve him of
criminal responsibility as Article 27 of the Statute expressly precludes any such
exemption.128 Furthermore, judges have been subjected to criminal liability for facilitating a
crime since the Nuremberg Trials.129
51. It is further submitted that a person may ‘commit’ a crime by the different modes of
participation. The Accused, in the instant case, is individually criminally responsible for his
participation in perpetration of CAH by multiple modes of participation as enumerated
below.

124
UN Commission on Human Rights, Commission on Human Rights Resolution 2003/43: Independence and
Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, 23 April
2003, E/CN.4/RES/2003/43, available at: https://www.refworld.org/docid/43f313390.html [accessed 23 April 2021]
125
ICCPR Articles 6(1).
126
COMPROMIS, ¶ 7.
127 Id.
128
Article 27, Rome Statute
129
USA v. Alstoetter, el al Case

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1. HE SHALL BE HELD LIABLE AS A CO-PERPETRATOR UNDER ART. 25(3)(A)

52. The VLR submits that the Accused incurs individual criminal responsibility for his acts
under Article 25(3)(A) of the Statute. It relies on the decision rendered in the Lubanga130
case to set out the parameters for incurring Individual Criminal Responsibility. There must be
a plurality of persons who act on the basis of an – explicit or implicit – common plan or
purpose, and the Accused must take part in this plan, at least by supporting or aiding its
realization131. It is further expounded in the ratio that any person making a contribution to
the crime can be considered as a principal in the crime.132 Therefore, any person who has
committed a crime in conjunction with others will be deemed as “Principal Offender”.133 The
parameters for the same have been enumerated below:

i. The Objective Elements have been fulfilled

a. Existence of a common plan between two or more persons

53. This element stipulates the existence of a common goal and agreement between the person(s)
involved.134 The VLR highlights the existence of an agreement on the common plan between
the Accused and the Steiner Administration which was to perpetrate CAH against the civilian
population of Titan, under the guise of the “War on Drugs” policy. It is reiterated that
perpetrators may agree upon the common plan, which is not inherently criminal but the
means to achieve such non-criminal goals may involve the commission of CAH135, as is the
case in the instantaneous matter. Reliance is placed on the PTC decision in Ruto, wherein,
Mr. Ruto and other members of the organization executed the non-criminal plan to evict

130
Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on Confirmation of Charges (Jan. 29, 2007).
131
Prosecutor v. Tadic, No. IT-94-1-A, Judgment, AC, 15 July 1999, ¶ 227.
Cassese et al., ICL (2013) 163; Ambos (2007) 5 JICJ 171; Jain, Perpetrators and Accessories in ICL (2014), 55-6.

132
Id., ¶326.
133
A-G Israel v. Eichmann, 36 I.L.R. 18, Judgment, ¶194 (District Court, Jerusalem, 1968).
134
Stakić, supra note 15, ¶469-¶472.
135
Crime in Int Law, p. 211

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members of certain communities because of their perception as the PNU supporters, which
was implemented through the commission of a number of CAH.136
54. The VLR further submits that agreement can be proved by silent consent to reach a common
goal by coordinated cooperation and joint control over the criminal conduct.137. The
existence of an agreement can also be inferred from the subsequent concerted action of the
co-perpetrators.138 This can be ascertained from the systematic conduct of the Accused in
aiding the policies of Steiner139, multiple acknowledgements through emails140 and excerpts
from the address141 of the Accused. Thus, the existence of an agreement on the common plan
has been established.

a. Essential Contribution
55. There should be a coordinated essential contribution made by each co-perpetrator resulting in
the realization of the objective elements of the crime.142 In Katanga, it was held that such
essential contribution can be carried out by co-perpetrators physically or, alternatively, be
executed through another person.143
56. The VLR relies on the principle discussed above to establish the ‘essential role’ played by
the Accused. It shall be noted that the Accused was the Chief judge of ADA, which dealt
with all cases relating to drug abuse144 and violations on part of public officials.145 Moreover,
his influence on other judges146 and systematic denial of permission to prosecute public

136
Prosecutor v. Ruto (ICC-01/09-01/11), Pre-Trial Chamber II, Decision on the Confirmation of Charges, 23
January 2012, ¶ 302.
137
Id., ¶440.
138
Lubanga, supra note 69, ¶345.
139
COMPROMIS, ¶ 8.
140
Annexure 1- Email.
141
Annexure –II.
142
Lubanga, supra note 69, ¶346.
143
Katanga et al. (ICC-01/04-01/07), Pre-Trial Chamber I, Decision on the Confirmation of Charges, 30 September
2008, ¶ 521.
144
COMPROMIS, ¶ 16
145
COMPROMIS, ¶ 17
146 COMPROMIS, ¶ 8.

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officials for commission of CAH147 highlights the essential role played by the Accused in
incapacitating the system of accountability and therefore, giving the ground forces a free
hand to perpetrate CAH.
57. It is further submitted that by virtue of the powers vested in his office, the Accused had the
responsibility to stop and prosecute the commission of CAH in Titan. However, per contra,
the Accused by aiding the policies of Steiner and willfully omitting to hold perpetrators
accountable, played an essential role resulting in the realization of objective elements of the
crime which would have not been possible without his contribution.

ii. The Subjective Elements have been fulfilled

a. The subjective elements of the crime must be fulfilled

58. This element of co-perpetration asserts that subjective elements with regard to crime as well
as common plan must be fulfilled.148 The VLR submits that the intent and knowledge of the
Accused with respect to the crime149 has already been established by the VLR in its previous
submission.150

2. HE SHALL BE HELD LIABLE UNDER ART. 25(3)(C) OF THE ROME STATUTE

59. Article 25 (3) (c) of the Statute relates to the responsibility for aiding, abetting or otherwise
assisting in the commission or attempted commission of a crime within the jurisdiction of the
court.151 The purpose behind such aiding, abetting, or assistance should be the facilitation of
the crime. Moreover, these are disjunctive requirements152 and cover any act, which

147 COMPROMIS, ¶ 8.
148
Lubanga, supra note 68, ¶349.
149
Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, Decision on the Confirmation of Charges, 29 January 2007, ¶s
349–360.
150
Article 30 Argument
151
Article 25 (3) (c) Rome Statute.
152
Prosecutor v. Ble Goud é , No. ICC-02/11-02/11-186, Decision on the Confirmation of Charges, PTC, 11
December 2014, ¶ 167; Triffterer, Hankel and Stuby (eds.), Strafgerichte gegen Menschenverbrechen (1995) 169,
229.

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contributes to the commission or attempted commission of a crime153. However, the

contribution must be substantial in nature.154.
60. It is further submitted that the contribution to the crime is irrespective of the fact whether the
Accused was present or removed both in time and place from the actual commission of the
crime.155 Moreover, the decisions rendered in Celebici’156 and, more recently, in Naletilic and
Martinovic157 suggest that all acts of assistance by words or acts that lend encouragement or
support’158 fall within the purview of aid and abetment. Furthermore, the assistance need not
be ‘tangible’159 and ‘moral support and encouragement’ is sufficient160.
61. The VLR contends that the acts of the Accused aided and assisted in giving legitimacy to the
Steiner Administration and providing substantial moral support to the forces committing
CAH. This can be proved from his biased conduct and illegal use of office by denying legal
defences and influencing prosecution of individuals towards maximum penalty, which
inevitably supported Steiner’s agenda and public perception of his policies.
62. The VLR further submits that “aiding and abetting” may also consist of an omission161; It
shall be noted that an act of non-interference coupled with position of authority held by the

153
Cf. Finnin, Accessorial Modes of Liability (2012) 73 et seq., 90–1.
154
Prosecutor v. Tadi ́c, No. IT-94-1-T, Judgment, TC, 7 May 1997, ¶s. 674, 688–92; Prosecutor v. Delalic., No. IT-
96-21-A, Judgment, AC, 20 February 2001, ¶ 352.
1996 ILC Draft Code, 24 (¶ 10).
155
Blasˇkic´ Appeal Judgement, ¶ 48.
156
Prosecutor v. Delali ́c et al., No. IT-96-21-T, Judgment, TC, 16 November 1998, ¶s. 325–9.
157
Prosecutor v. Naletili ́c and Martinovi ́c, No. IT-98-34-T, Judgment, TC, 31 March 2003, ¶ 726; Prosecutor v.
Blagojevi ́cand Joki ́c, No. IT-02-60-T, Judgment, TC, 17 January 2005, ¶ 726.
158
Prosecutor v. Tadi ́c, No. IT-94-1-T, Judgment, TC, 7 May 1997, ¶ 687; LRTWC 49-51, (1948) 15;\ Prosecutor
v. Tadi ́c, No. IT-94-1-A, Judgment, AC, 15 July 1999, ¶ 691.
159
Prosecutor v. Kayishema and Ruzindana, No. ICTR 95-1-T, Judgment, TC, 21 May 1995, ¶ 200.
160
Prosecutor v. Furundzˇija, No. IT-95-17/1-T, Judgment, TC, 10 December 1998, ¶s. 190–249.
161
Prosecutor v. Akayesu, No. ICTR-96-4-T, Judgment, TC, 2 September 1998, ¶ 548; Prosecutor v. Kamuhanda,
No. ICTR-95-54A-T, Judgment, TC, 22 January 2004, ¶ 597; Prosecutor v. Bisengimana, No. ICTR-00-60-T,
Judgment and Sentence, TC, 13 April 2006, ¶ 34; Prosecutor v. Mpambara, No. ICTR-01-65-T, Judgment, TC, 11
September 2006, ¶ 22; Prosecutor v. Muvunyi, No. ICTR-2000-55A-T, Judgment and Sentence, TC, 12 September
2006, ¶ 470; Prosecutor v. Ndahimana, No.ICTR-01-68-A, Judgment, AC, 16 December 2013, ¶ 147.

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Accused amounts to a tacit approval and encouragement to commit the crime.162

Furthermore, the failure to punish for the crimes constitutes “aiding and abetting” to commit
further crimes.163 For an omission to qualify as “aiding and abetting”, it is necessary to
demonstrate that (i) the omission had a substantial effect on the crime in the sense that the
crime would have been substantially less likely, had the accomplice acted; and (ii) the
accomplice knew that the commission of the crime was probable and his inaction assisted
it.164
63. The VLR submits that had the Accused acted as per his legal obligations and held public
officials and local militia indulging in CAH accountable, it is highly unlikely that those
crimes would have occurred. The lack of accountability in the ADA due to the omission on
part of the Accused tantamount to a tacit approval and encouragement to commit crimes
which effectuated the CAH.
64. Furthermore, it is submitted that the Accused knew his inaction assisted the commission of
crime by virtue of his role and authority as Chief Judge of ADA, which was responsible for
admitting all cases relating to admission of human rights violation by public officials who
were indulging in CAH. VLR highlights that the issue of public officials committing
inhumane acts on the civil population was common knowledge appearing regularly in the
media.165 Therefore, the Accused was aware that he had the authority to frustrate the
commission of these crimes yet he omitted to do so.
65. In conclusion, the conduct of the Accused incurs liability under Article 25(3)(c) of the
Statute.

3. UMBERTO ECO SHALL BE HELD LIABLE UNDER ART. 25(3)(D)

66. The VLR submits that, in addition to above, the Accused is also liable under Art. 25(3)(d) of
the Rome Statute as an accessory to CAH of Murder.166

162
Brđanin Appeal Judgement, ¶ 273; Oric´ Appeal Judgement, ¶ 42; Kayishema Appeal Judgement, ¶s 201–202.
163
Blasˇkic´ Trial Judgement, ¶ 337.
164
Mrksˇic´ and Sˇljivancˇanin Appeal Judgement, ¶s 97, 101; Oric´ Appeal Judgement, ¶ 43.
165
Media report, Annexure-III
166
Lubanga, ¶334.

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67. Art. 25(3)(d) functions as a catch-all provision as it requires less of a threshold than any other
form of liability.167 In Mbarushimana168 the PTC had set out the requirements for liability
under Art. 25(3)(d) which are enumerated as follows:

i. The objective elements have been fulfilled.

68. The subparagraph (d) displays the lowest objective threshold within the different modes of
attribution of Article 25.169 As was held in Mbarushimana, the objective elements of the
crime are: (i) a crime within the jurisdiction of the Court is attempted or committed; (ii) the
commission or attempted commission of such a crime was carried out by a group of persons
acting with a common purpose; (iii) the individual contributed to the crime in any way other
than those set out in Article 25(3)(a) to (c) of the Statute.170
69. With reference to (i), it is submitted that the ratione materiae has been fulfilled, as CAH of
Murder is a crime under the Statute, which has been committed as established above. As with
reference to (ii), reference may be drawn from the pleadings submitted hitherto171, where the
Accused and Steiner have been proved as acting coordinately with a common purpose.
70. As with respect to (iii), the PTC in Mbarushimana designated that there must be a
‘significant’ contribution.172 As to the assessment of ‘significant’, the PTC proposed a case-
by-case analysis of the person’s conduct in the given context173 taking into account several
factors which include:
(i) the sustained nature of the participation after acquiring knowledge of the
criminality of the group’s common purpose, (ii) any efforts made to prevent criminal
activity or to impede the efficient functioning of the group’s crimes, (iii) whether the
person creates or merely executes the criminal plan, (iv) the position of the suspect in

167
J.D Ohlin, Joint Intentions to Commit International Crimes, 11 CHI. J. OF INT’L L. 409 (2010).
168
Prosecutor v. Callixte Mbarushimana, ICC-01-04-01-10, Decision on the Prosecutor’s Application for a Warrant
of Arrest, ¶41 (Dec. 16, 2011).
169
Prosecutor v. Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges, ¶354, (Jan. 23, 2012).
170
Mbarushimana, ¶39.
171
Article 25(3)(a), Rome Statute.
172
Mbarushimana,¶283-¶285; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06- 309, Decision on the Confirmation
of Charges, ¶158 (9 June 2014); Prosecutor v. Gbagbo, ICC- 02/11-01/11-656-R, Decision on the Confirmation of
Charges, ¶252, (12 June, 2014).
173
Mbarushimana, ¶284; Katanga Judgment, ¶1634.

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the group or relative to the group and (v) perhaps most importantly, the role the
suspect played vis-a`-vis the seriousness and scope of the crimes committed.174
71. Firstly, the VLR reiterates that the Accused continued to be a part of the criminal design of
Steiner after acquiring full knowledge of the crimes being perpetrated in execution of the
plan. While the existence knowledge can be ascertained from his position of authority and
media reports175, the fact that he continued to favour the administration in his position as
Chief Judge proves his sustained nature of participation in the criminal design.
72. Secondly, it is submitted that the Accused did not make any palpable effort to impede the
perpetration of CAH by the administration. It shall be noted that the Accused, by virtue of his
position, knew that he had the ability to frustrate the objective of the group by using his
powers to hold to account those responsible for crimes.176 However, he did not make any
effort to do so.
73. Thirdly, the Accused had not only executed the nefarious design of the Administration, but
also helped in the conceptualization of policies.177
74. Fourthly, the position of the Accused in the group was pivotal as he was the Chief Judge of
ADA, having plenary powers178 to hold to account the perpetrators of CAH in Titan.
75. Fifthly, the role played by the Accused was vital as it gave legitimacy to the Steiner
Administration by aiding the public perception of the War on Drugs policy. It shall be noted
Steiner was ousted from power179 only after International sanctions were imposed on Titan
which resulted in public criticism about his way of governance180. The VLR submits that the
decisions rendered by the Accused were used by to bolster and justify181 the illegal acts of his
Administration. This premediated182 and concerted effort inevitably gave undue credibility to
the policy and helped the perpetration of CAH to sustain.

174 Id.
175
Annexure III.
176
Stakic´ Trial Judgement, paras 497–498.
177 COMPROMIS, ¶ 7.
178 COMPROMIS,¶ 17.
179 COMPROMIS, ¶ 20.
180 COMPROMIS, ¶ 19.
181
Annexure-I
182
Annexure-I

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76. Thus, it is submitted that all objective elements of a significant contribution under Art.
25(3)(D) have been fulfilled.

ii. Subjective elements have been fulfilled.

77. It is submitted that the subjective elements are: (i) the contribution shall be intentional; and
(ii) shall either (a) be made with the aim of furthering the criminal activity or criminal
purpose of the group;
78. With reference to (i), it is submitted that, ‘intentional’ is to be understood as possessing the
dolus as enumerated in Art. 30 of the Statute183. The same has already been proved by the
VLR in its earlier submission.184
79. As concerning (ii), with respect to (a), the Accused must possess the ‘dolus’, i.e. the specific
intention to promote the ideas and acts of the group.185 This requirement can be ascertained
by the address of the Accused on inauguration of courtroom number V186, wherein, he
expressed his willingness187 and commitment188 to implement the vision and policies of the
Steiner Administration.
80. Thus, it is submitted that both the objective as well as subjective elements of the crime have
been fulfilled and hence, the Accused is liable under Art. 25(3)(D).

IV. THAT THE VICTIMS OF CRIME AGAINST HUMANITY OF MURDER MUST BE

APPROPRIATELY REMEDIED

81. In order for this Court to provide true justice for victims of international criminal acts, it must
incorporate a process that adequately recognizes the personal interest of the victims, and not
only focus on punishing the criminal189.
82. The VLR submits that reparation for victims of gross violations of human rights is necessary
in offering justice190. Victims of international criminal acts are entitled to seek justice and

183
Triffterer, at 1014.
184
Article 30 Submission
185
Prosecutor v. Semanza,Trial Chamber, ICTR-97-20, ¶ 313 (15 May 2003).
186
Annexure -II
187
COMPROMIS, p.31 Email.
188
COMPROMIS, p.32 Email.
189
Zimmermann, article 5.

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receive prompt redress.191 The right of victims to reparations is a constitutive part of the right
to justice192.

1. THE VICTIMS WHO SUFFERED THIS GREAT HARM ARE CONSIDERED “VICTIMS”
UNDER APPLICABLE LAW
83. The Victims Declaration defines ‘Victims’ as: “persons who, individually or collectively,
have suffered harm, including physical or mental injury, emotional suffering, economic loss
or substantial impairment of their fundamental rights, through acts or omissions that are in
violation of criminal laws operative within Member States .…”193
84. Furthermore, Rule 85 of the Court’s rules defines Victims as, “natural persons who have
suffered harm as a result of the commission of any crime within the jurisdiction of the
Court”.194 The “harm” may include “material, physical, and psychological harm,”195 and it
can “attach to both direct and indirect victims.”196
85. The VLR submits that the victims in the instant case are natural persons who have suffered
harm as a result of the commission of a crime within the jurisdiction of the Court. Certainly,
human beings who have been subjected to torture, public humiliation,197 arson, sexual
violence, loot,198 etc and witnessed thousands of illegal killings199 do qualify the standard for
victims as laid down by the declaration as well as by the rules of this court.

190
Theo Van Boven, & Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of
Gross Violations of Human Rights and Fundamental Freedoms 11-15, in Transitional Justice: How Emerging
Democracies Reckon with Former Regimes, vol. 1, General Considerations (Neil J. Kritz ed., United States Institute
of Peace Press, 1995).
191
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, Annex,
U.N. Doc. A/RES/ 40/34/Annex (Nov. 29, 1985).
192
Donat-Cattin, article 68, mn. 3.
193 Id.
194
Rule 85 Rules of Procedures and Evidence.
195
The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeals of The Prosecutor and The Defense against
Trial Chamber I‟s Decision on Victims‟ Participation of 18 January 2008, ICC-01/04-01/06, ¶ 32 (Appeals
Chamber, 11 July 2008).
196
Lubanga, Judgment on the Appeals of The Prosecutor and The Defense against Trial Chamber I‟s Decision on
Victims‟ Participation of 18 January 2008, supra note , ¶ 32.
197
COMPROMIS ¶ 8.
198
COMPROMIS ¶ 15.

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86. The civilian victims of Titan have both individually and collectively suffered great physical
and psychological harm. The surviving victims have suffered immense mental injury and
emotional suffering from witnessing family members being brutally murdered200. Finally,
these victims have suffered extreme economic loss as they were looted and their property
destroyed201. Thus, they should be considered victims in respect to claiming reparations,
restitution, compensation, and rehabilitation.

i. The ICC Must Establish Principles Relating to Reparations to, or in Respect of,
Victims, Including Restitution, Compensation and Rehabilitation
87. This Court may, either upon request or on its own motion, determine the scope and extent of
any damage, loss and injury to, or in respect of, victims.202
88. The VLR submits that the victims in the present case are entitled to reparations as provided
under Article 75 of the Statute. It is submitted that the victims were subject to Crimes
Against Humanity as established hitherto203 and have suffered a great harm on account of the
same. The victims qualify the standard for receiving reparations from the Accused as well as
restitution, compensation and rehabilitation from the Trust Fund maintained by the Court.

ii. The Court May Make an Order Directly Against the Convicted Person
89. The ICC has jurisdiction over individual criminals. The Court may make an order directly
against a convicted person specifying appropriate reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation204. The Accused must make fair
restitution to these victims, their families and dependants as he was substantially responsible
for the harm caused205. The General Assembly has agreed that victims are entitled to have
their property returned, get paid for the harm or loss suffered, and receive reimbursement of
expenses incurred as a result of the victimization.206

199
COMPROMIS ¶ 6.
200
VW-2., supra note 67.
201
COMPROMIS ¶ 15 and ¶19.
202
Article 75 Rome Statute supra note 1.
203
Written Submission on Behalf of the Victims - Contention I .
204
Rome Statute art. 75, 2.
205
Lubanga Reparations’Decision, see note 34, at para. 269
206
Victims Declaration, supra note 165.

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iii. The Trust Fund Maintained by the Court Should Alternatively be used for
Remedyingthe Victims
90. Article 79 of the Rome Statute sets forth the concept of a trust fund. Subsection (1) of Article
79 enables the Assembly of State Parties to establish a trust fund for the benefit of victims. 207
Once the ICC is found to be the proper jurisdiction for international crimes (which it is, in the
present case), the Court may order money and other property collected through fines to be
transferred through the trust fund to the victims and the families of such victims208.
91. The VLR submits that if the court is of the view that the defendant is not capable enough to
compensate such a large number of victims in the instant case, it must reach out for other
means of compensation. The trust fund created under Article 79 of the Rome Statute is
precisely what the victims in the instant case need in order to re-establish their lives and be
compensated for the harm they have suffered. Therefore, the victims should be adequately
compensated by the defendants and/or from Trust Fund.

207
Rome Statute art. 79.
208
Article 79 (2) Rome Statute supra note 1.

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PRAYER

Wherefore, in the light of the issues raised, arguments on merits, evidences supplied
andauthorities relied on, it is humbly prayed that:

I. The Accused, Umberto Eco, did commit the acts of Crime Against Humanity of
Murder underArticle 7(1)(a) of the Rome Statute.

II. Umberto Eco is Individually Criminally Responsible for the acts committed by
him as a Co-Perpetrator.

III. Umberto Eco is Individually Criminally Responsible for the acts committed by him
as a willingaccessory.

IV. The Victims are Entitled to Compensation for the Harm caused by the Crimes.

COUNSEL FOR THE

VICTIMS
Legal Representative of the
Victims

29 | P a g e SLS-P STUDENT BAR ASSOCIATION| SYMBIOSIS LAW SCHOOL, PUNE