ICC MULTI MOOT COMPETITION IN THE ENGLISH LANGUAGE

APRIL 2022

THE COUNSEL FOR THE STATE OF ASTIPUR

Team Number: 4

Year: 2022
 STATE OF ASTIPUR

Original: English Date: 20 May 2022

THE APPEALS CHAMBER

SITUATION RELATING TO THE CRIME OF AGGRESSION AGAINST BRAVOS

The State of Astipur’s Submission in the

Appeal from the Pre-Trial Chamber’s Decision on the Confirmation of
Charges of Defendant Dani Targarian of Cilanta

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 STATE OF ASTIPUR

TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................2

LIST OF ABBREVIATIONS..................................................................................................5

INDEX OF AUTHORITIES....................................................................................................6

Cases.......................................................................................................................................5

Articles..................................................................................................................................12

Treaties and Conventions......................................................................................................14

United Nations Documents...................................................................................................15

Miscellaneous........................................................................................................................17

STATEMENT OF FACTS.....................................................................................................19

ISSUES RAISED.....................................................................................................................22

SUMMARY OF ARGUMENTS............................................................................................23

WRITTEN ARGUMENTS....................................................................................................24

CONCLUDING SUBMISSIONS................................................................................................ 60

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 STATE OF ASTIPUR

LIST OF ABBREVIATIONS

ACHR American Convention on Human Rights

AMIS African Union Mission in Sudan
Art/s Article/s
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ICC International Criminal Court
ICISS International Commission on Intervention and State Sovereignty
ICJ International Court of Justice
IMT International Military Tribunal
IMTFE International Military Tribunal for the Far East
ISIL Islamic State of Iraq and Syria
OTP Office of the Prosecutor
PTC Pre-Trial Chamber
r(r) Rule/s
SCSL Special Court for Sierra Leone

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 STATE OF ASTIPUR

INDEX OF AUTHORITIES

CASES

EUROPEAN COURT OF HUMAN RIGHTS

Buck Buck v Germany App no 41604/98 (ECtHR, 28 April 2005)

Camenzind Camenzind v Switzerland App no 21353/93 (ECtHR, 16

December 1997)

Chappell Chappell v the United Kingdom App no 10461/83 (ECtHR,

30 March 1989)

Crémieux Crémieux v. France App no 11471/85 (ECtHR, 25 February

1993)

Funke Funke v France App no 10828/84 (ECtHR, 25 February

1993)

Gutsanovi Gutsanovi v Bulgaria App no 34529/10 (EctHR, 15 October

2013)

INTERNATIONAL CRIMINAL COURT

Abu Garda
Ongwen Prosecutor v Abu
Prosecutor Garda (Decision
v Dominic on the Confirmation
Ongwen (Decision on the of
Charges) ICC-02/05-02/09-243-Red,
Confirmation Pre-TrialOngwen)
of Charges against Dominic Chamber I (8
February
ICC- 2010)
Statute’) 02/04-01/15-422,
ICC-01/05-01/08-3636-Red,
Pre-Trial AppealsIIChamber
Chamber (8 2016)
June
(23(Decision
March
Al Bashir Prosecutor v Omar Hassan Ahmad Al Bashir on
2018)
the Prosecution’s Application for a Warrant of Arrest
againstv Jean-Pierre
Bemba (Confirmation) Prosecutor Omar HassanBemba
Ahmad Al Bashir)
Gombo ICC-02/05-01/09-
(Confirmation of
3, Pre-Trial
Charges) Chamber I (4 March
ICC-01/05-01/08-424, 2009)
Pre-Trial Chamber I (15 June
2009)
Bahar Prosecutor v. Bahar Idriss Abu Garda (Decision on the

Bemba (Judgment) Confirmation

Prosecutor of Charges)
v Jean-Pierre BembaICC-02/05-02/09-243-Red,
Gombo (Judgment pursuantPre
to
ArticleTrial
74 ofChamber I (8ICC-01/05-01/08-3343,
the State) February 2010) Trial Chamber
4
III (21 March 2016)
Bemba (Appeal) Prosecutor v Jean-Pierre Bemba Gombo (Judgment on the
appeal of Mr Jean-Pierre Bemba Gombo against Trial
Chamber III’s ‘Judgment pursuant to Article 74 of the
 STATE OF ASTIPUR
INTERNATIONAL COURT OF JUSTICE

Asylums Case Asylum Case (Columbia v Peru) (Judgment) [1950] ICJ Rep
266

Kosovo Oral Proceedings Legality of Use of Force (Serbia and Montenegro v

Belgium) (Oral Proceedings, Public Sitting) (10 May 1999)

Nicaragua (Merits) Military and Paramilitary Activities in and Against

Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14

North Sea Continental Shelf North Sea Continental Shelf (Federal Republic of Germany
v Denmark; Federal Republic of Germany v Netherlands)
(Judgment) [1969] ICJ Rep 3
Case Concerning the Temple of Preah Vihear (Cambodia v
Preah Vihear
Thailand) (Merits) [1962] ICJ Rep 131

PERMANENT COURT OF INTERNATIONAL OF JUSTICE

Chorzów Factory Factory at Chorzów (Germany v Poland) (Jurisdiction)

(1927) PCIJ Rep Series A No 9

Diversion of Waters from the Meuse (Netherlands v

Meuse
Belgium) (1937) PCIJ Rep Series A/B No 70

INTERNATIONAL MILITARY TRIBUNAL

Einsatzgruppen case The United States of America v. Otto Ohlendorf et al., in

Trials of War Criminals before the Nuremberg Military
Tribunals under Control Council Law No. 10, Nuremberg,
October 1946 – April 1949, vol. IV (1948)

Goring et al. The United States of America v Goring et al.in Trials of War
Criminals Before the Nuremberg Military Tribunals Under
Control Council Law No 10, Nuremberg, November 1945 –
October 1946, vol. I (1947)
5
The United States of America v von Leeb et al. in Trials of
High Command Case
War Criminals before the Nuremberg Military Tribunals
 STATE OF ASTIPUR

ARTICLES

Bilder and Vagts (2004) Richard Bilder and Detlev Vagts, ‘Speaking Law to Power:
Lawyers and Torture’ (2004) 98 American Journal of
International Law 689

Brooks (2014) Rosa Brooks, ‘Humanitarian Intervention: Evolving Norms,

Fragmenting Consensus’ (2014) 29 Maryland Journal of
International Law 161

Crootof (2016) Rebecca Crootof, ‘Change without Consent’ (2016) 41 The

Yale Journal of International Law 237

Kleczkowska (2017) Agata Kleczkowska, ‘The US Strike of 7 April 2017 and

How it Influenced the Law on the Use of Force’ (2017) 56
The Military Law and the Law of War Review 11

Koh (2016) Harold Koh, ‘The War Powers and Humanitarian

Intervention’ (2016) 53 Houston Law Review 971

Kreβ and Holtzendorff Claus Kreβ and Leonie von Holtzendorff, ‘The Kampala
(2010) Compromise on the Crime of Aggression’ (2010) 8 Journal
of International Criminal Justice 1179

Scharf (2016) Michael Scharf, ‘How the War Against ISIS Changed
International Law’ (2016) 48 Case Western Reserve Journal
of International Law 15
TREATIES AND CONVENTIONS

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 STATE OF ASTIPUR

ACHR American Convention on Human Rights (adopted 22

November 1969, entered into force 18 July 1978) 1144
UNTS 123

ECHR European Convention for the Protection of Human Rights

and Fundamental Freedoms, as amended by Protocols nos.
11 and 14 (adopted 4 November 1950, entered into
force 3
September 1953) ETC 5

ICCPR International Covenant on Civil and Political Rights

(adopted 16 December 1966, entered into force 23 March
1976) 999
UNTS 171

Nuremburg Charter Charter of the International Military Tribunal – Annex to the

Agreement for the prosecution and punishment of the major
war criminals of the European Axis (“London Agreement”)
(adopted 8 August 1945, entered into force 8 August 1945)
82 UNTS 279

Rome Statute Rome Statute of the International Criminal Court (adopted

17 July 1998, entered into force 1 July 2002) 2187 UNTS
90

UN Charter Charter of the United Nations (adopted 26 June 1945,

entered into force 24 October 1945) 1 UNTS XVI
Vienna Convention on the Law of Treaties (adopted 23 May
VCLT
1969, entered into force 27 January 1980) 1155 UNTS 331

UNITED NATIONS DOCUMENTS

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1998 Draft Statute
RPE Preparatory Committee
International on Court,
Criminal the Establishment
'Rules of of an ICC, and
Procedure
‘Draft Statuteofofthe
Evidence theInternational
InternationalCriminal
Criminal Court'
Court’ (9
(1998)
August
UN2002)
Doc UN
A/183/2/Add-1
Doc PCNICC/2000/1/Add.1

2005 World
Situation Summit
in the DRC UNGA, '2005 World
International Summit
Criminal Outcome'
Court, (24inOctober
‘Situation 2005)
the Democratic
Outcome UNRepublic
Doc A/Res/60/1
of Congo’ ICC-01/04 <https://www.icc-
cpi.int/drc> accessed 15 February 2019
Aggression Understandings ICC Assembly of State Parties, 'The Crime of Aggression’,
Speech to the UNSC Annex IIINations
United (11 JuneSecurity
2010) UN Doc RC/Res.6
Council, Verbatim Record (10
(Netherlands) June 1999) UN Doc S/PV.4011
Kofi Annan Speech to Kofi Annan, ‘Secretary-General Presents His Annual Report
UNGA
SWGCA 2005 Report to International
the General Assembly’
Criminal (20 September
Court 1999)ofUNStates
Assembly Doc
A/9596.
Parties ‘Information Inter-Sessional Meeting at
Princeton’ ofICC-
'Regulations ASP/4/32
the Office (28 November
of the Prosecutor' – 3
ICC-BD/05-01-
OTP Regulation
09December 2005)
(23 April 2009)

SWGCA 2006 Report International Criminal Court Assembly of States

Parties, ‘Report of the Special Working Group on the
Crime of Aggression’ ICC-ASP/5/SWGCA/INF.1
(2006)

SWGCA 2007 Report International Criminal Court Assembly of States Parties,

‘Report of the Special Working Group on the Crime of
Aggression’ ICC-ASP/5/35 (29 January – 1 February
2007)

SWGCA 2008 Report International Criminal Court Assembly of States Parties,

(June) ‘Report of the Special Working Group on the Crime
of Aggression’ ICC-ASP-6/20/Add.1(2–6 June
2008)

MISCELLANEOUS

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ICISS Report International Commission on Intervention and State

Sovereignty, The Responsibility to Protect (International
Development Research Centre, 2001)

NATO Report (2000) Lord Robertson, ‘Kosovo One Year On: Achievement and
Challenge’, NATO Report (21 March 2000)
<http://www.nato.int/kosovo/repo2000> accessed 15

December 2018

Obama Address to the New York Times, ‘President Barack Obama Address to the
UNGA United Nations General Assembly’ (24 September 2013)
<http://perma.cc/EC7E-UAHC> accessed 11 December
2018

Rudd (2004) Gordon Rudd, 'Humanitarian Intervention – Assisting the

Iraqi Kurds in Operation Provide Comfort, 1991'
(Department of the Army of Washington DC 2004)

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 STATE OF ASTIPUR
STATEMENT OF FACTS

1. Background 

The State of Astipur [“Astipur”], Republic of Bravos [“Bravos”], and the Commonwealth of 
Cilanta [“Cilanta”] are all neighboring States, separated by the Stormy Sea. They are parties  to
the Rome Statute [“Statute”], the International Covenant on Civil and Political Rights 
[“ICCPR”] and the Geneva Convention and its Additional Protocols [“Geneva  Convention”].
Cilanta, however, does not have a domestic legislation, and therefore crimes  of aggression cannot
be prosecuted in its domestic courts. Astipur has an exemplary record of  human rights compliance,
and has a sophisticated military. Bravos, on the other hand, has an  infamous history regarding
human rights violations.  

2. The atrocity crimes in Bravos 

On July 21, 2018, the Government of Bravos deployed a dozen aerial chlorine bombs in  response
to protests by cobalt mine workers for better working conditions to quash the said  protest. 800
mine workers died as a consequence. On July 24 th, the Government killed 1200  more citizens in a
similar manner.  

3. The failure of the UNSC to act in the face of the crisis. 

After the first attack on July 21st, Astipur introduced a resolution before the UNSC to  condemn the
use of chemical weapons by Bravos, against its own citizens. However, the  UNSC was precluded
from taking any action, because a permanent member of the Council  vetoed the said resolution.
The said permanent member also has close commercial ties with  Bravos. After the bombings on
July 23rd, Astipur tabled another resolution, which sough to  establish a U.N. Investigative
Commission, to probe into the said use of chemical weapons. The same permanent member, inspite
of 11 members voting in support of it, vetoed this  resolution. 

4. Defendant’s Legal Opinion 

On July 23, 2018 the President of Astipur, Mr. James Bannister [“Bannister”] commissioned  a
legal opinion from the Defendant on limited use of force in order to avert the crisis in  Bravos. The
Defendant opined that there exists a right of humanitarian intervention under  international law, in
circumstances as grave as in the present case. These communications  were done via emails. 
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5. Astipur’s humanitarian intervention 

In light of widespread protests that had broken out in Bravos, and the use of chemical  weapons in
the recent past as a response to such protests, there was a strong probability that  chemical weapons
would again be used against civilians, all of which amounted to a crime  against humanity.
Therefore, because of the inaction of the Security Council and the pending  atrocity crimes in
Bravos, shocking the conscience of humanity, Astipur was obligated to  decapacitate Bravos’
facilities of storage, production and deployment of chemical weapons. The UNSC and the
international community at large, refused to conduct these actions as acts  of aggression. 

6. The Indiscriminate, Nighttime Search of the Defendant’s Residence 

Upon gathering knowledge of the Defendant’s involvement in the matter, the Government of 
Cilanata conducted an illegal search of the Defendant’s house in the middle of the night. The 
defendant’s right to privacy was violated in a grave manner, during the process. All  computers
from the defendant’s resident, including those that belonged to her family  members, were seized.
She was also put under house arrest for 6 months. The emails between  the Defendant and Mr.
Bannister were extracted from her computer, and submitted to the  Office of the Prosecutor
[“OTP”] 

7. The Pre-Trial Chamber’s Decision

The PTC erroneously decided that the evidence obtained from the Defendant’s house was 
admissible, that Astipur’s intervention was of the character, gravity and scale to constitute a 
manifest violation of the UN Charter in order to be a crime of aggression under the Statute,  and
that the Defendant could be prosecuted for aiding and abetting the alleged crime of  aggression.
The Defense was given leave to appeal the decision.  

And therefore, the present appeal before the Appeals Chamber

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ISSUES RAISED

I. Whether evidence seized from the home of the Defendant under the circumstances described 
in the Pre-Trial Chamber’s opinion must be excluded under Article 69(7) of the ICC Statute. 

II. Whether the facts described in the Pre-Trial Chamber’s decision were of the “character, 
gravity and scale” to “constitute a manifest violation of the Charter of the United Nations” as 
required for the prosecution of the crime of Aggression under Article 8bis of the ICC Statute. 

III. Whether a lawyer who on commission provides the government one-sided legal advice 
calculated to justify an armed attack on another State can be prosecuted for aiding and  abetting
the Crime of Aggression under Article 25(3)(c) of the ICC Statute.

SUMMARY OF ARGUMENTS

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 STATE OF ASTIPUR
I. Whether the evidence seized from the home of the Defendant under the circumstances 
described in the Pre-Trial Chamber’s opinion must be excluded under Article  69(7) of
the ICC Statute.  

1. It is humbly submitted that the said evidence shall be excluded as it was obtained from the
Defendant’s house in violation of her  internationally recognized fundamental right of privacy.
2. The violations in questions are so grave that they cast a substantial doubt on the  reliability of the
evidence.  
3. The admission of such evidence is anthetical to, and will seriously damage, the  integrity of the
proceedings against the defendant. 
4. The evidence, having fulfilled all conditions of Article 69(7) of the Statute, therefore  ought to
have been excluded by the PTC. 
5. As the data was transferred by a forensics expert which was later handed to the office of
prosecutor, there are high chances of the data being manipulated before handing the hard copy to
the OTP. 

II. The facts described in the Pre-Trial Chamber’s decision were not of the  “character,
gravity and scale” to “constitute a manifest violation of the Charter  of the United
Nations” as required for the prosecution of the crime of Aggression  under Article 8bis
of the ICC Statute. 

1. The use of force by Astipur, was of the nature of humanitarian intervention, aimed at halting
grave violations of human rights and perpetration of the crime against  humanity, of the
people of Bravos. Thus, it was neither violative of the UN Charter,  nor customary
international law.  

2. Even otherwise, the said use of force by Astipur against Bravos, by its character,  gravity and
scale, does not constitute a manifest violation of the UN Charter 

3. Thus, the facts describe in the PTC’s decision regarding the use of force by Astipur,  does not
constitute a crime of aggression for the purpose of Article 8bis of the Statute.  

III.A lawyer who on commission provides the government one-sided legal advice 
calculated to justify an armed attack on another State cannot be prosecuted for  aiding
and abetting the Crime of Aggression under Article 25(3)(c) of the ICC Statute.

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 STATE OF ASTIPUR
1. Article 25 3bis of the Statute includes only high-ranking officials of a state, and thus 
excludes from the ambit of the Statute, non-state actors, such as privately  commissioned
lawyers, for the commission, or abetment of, the crime of aggression.  Even otherwise, in the
present case, the defendant was not in a position to ‘control or  direct’ the political and
military of Astipur. 

2. Alternatively, neither did she satisfy the subjective elements of Article 25(3)(c), by  lacking
the requisite mens rea, nor did her act of tendering a legal opinion, as to the  legality of the
then contemplated use of force, qualify as an actus reus for the purpose  of Article 25(3)(c). 

3. Thus, the PTC erred in deciding that a privately commissioned lawyer, such as the  defendant
in this case, who provides a government a legal opinion as to the legality of  any
contemplated state action, be prosecuted for aiding and abetting the crime of  aggression

WRITTEN ARGUMENTS 
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 STATE OF ASTIPUR

1. The evidence collected from Ms. Targarian’s House is inadmissible under Article  69(7) of
the Rome Statute. 

Article 69(7) of the Statute states that evidence obtained by means of violation of the Statute  or
an internationally recognised human right is inadmissible if the violation casts a substantial  doubt
on its reliability or if its admission will be antithetical to, or will seriously damage the  integrity of
the proceedings. 

1. The evidence obtained from the house of the defendant is  inadmissible in the Court as it
was obtained in violation of internationally recognised human  rights.
2. The said violations are so grave that they cast a substantial doubt on the reliability of the
evidence
3. The admission of such evidence will be antithetical to or will seriously damage the integrity
of the proceedings
4. As the data was transferred by a forensics expert which was later handed to the office of
prosecutor, there are high chances of the data being manipulated before handing the hard
copy to the OTP. 

Internationally recognised human rights are wide in its ambit and cover treaty as well as non treaty
standards, including recognised norms and minimum internationally acceptable  standards given. In
the present case, the violation of [i] the right to privacy, [ii] the right to  liberty and against
unlawful detention and [iii] the rights of the person during investigations  and of the accused, are
extremely grave by the virtue of [iv] being infringed in a disproportionate manner to be excluded
from admissibility under Article 69(7) of the Statute. 

In the present case, the search and seizure conducted was firstly, without any authorisation by
either the ICC or any domestic legislation, and thus ultra vires the law. Secondly, the search 
conducted was indiscriminate which is indicative of the fact that all the computers in  residence,
including those belonging to the defendant’s family members, were seized. These facts prove that
the search and seizure conducted was of a disproportionate nature and thus evidence is
inadmissible under 69(7) of the Statute.

Right to Liberty has been recognised as an internationally recognised human right by the virtue of
the ICCPR, the ECHR, the UDHR and the IACHR. Moreover, the right to  protection from
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 STATE OF ASTIPUR
unlawful detention is enshrined in Article 55(1)(d) and Article 85(1) of the  Rome Statute, Article
9 of the ICCPR and Article 7(3) of the IACHR. The ICC has upheld  this position of law as well.
Rights of persons during an investigation have been recognised as internationally recognised 
human rights by the virtue of Article 55 of the Rome Statute. Moreover, rights of an accused  by
virtue of Article 67 of the Rome Statute afford them the status of internationally  recognised
human right. Therefore, since all the three categories of right flow from treaty standards and also
are  recognised statutory norms, they are internationally recognised human rights for the purposes 
of Article 69(7) of the Statute. 

In Miailhe v. France, the ECHR held the search to be disproportionate because of the fact  that the
search conducted by the authorities was indiscriminate and wholesale as search and  seizure of
multiple irrelevant documents was also made. Moreover, a disproportionate search  conducted
where the defendant was also a lawyer, was held to be in violation of Defendant’s  Right to
Privacy.  In Garcia v. Peru, the violation of Right to Privacy was recognised due  to the fact that
the search and seizure was conducted without warrant by soldiers who didn’t  have any authority to
conduct such search and seizures. 

Article 69(7) is concerned with the admission of evidence which is obtained in a manner  casting
substantial doubt on the reliability of the evidence. The collection and submission of  evidence
must happen in a manner that safeguards the integrity and reliability of the evidence  from
tampering, corruption or distortion of the same. In the present case, 

[i] the authenticity  and 

[ii.] the integrity of the e-mails submitted in hard copy, has not been proved. 

Authentication refers to ensuring the fact that the evidence tendered is in fact what it purports  to be
and to prove. However, in the present case, the prosecution has merely provided the hard copies of
the  emails, which adduce no proof of the authorship of the same. This casts a substantial doubt 
as to whether the contents of the document are identical to the mails initially retrieved from  the
defendant’s house. The failure of the prosecution to authenticate the hard copy of the emails, seen
in light of the political bias under which it was collected, casts a substantial  doubt on the reliability
of the evidence.. 

To establish the integrity of a document, it is important to prove that after obtaining the  same,
there was no tampering of the same, and that it has been retained in the form in which  it was
originally seized. This is done by showing continuity in the chain of custody of the  evidence,
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 STATE OF ASTIPUR
which assures the Court that it has not been tampered with. In the present case, it is established that
the search was conducted in an illegal manner as without any warrant. and evidence was seized
without any documentation of  the same. Moreover, there has been no proof as to show the
continuity in chain of custody of  the documents obtained. Therefore, the same leads to failure in
establishing the integrity of  the e-mails and hence, casts a substantial doubt on its reliability. 

Article 69(7) of the Statute recognises the principle of proportionality for analyzing the  violation
of human right so as to constitute whether the same is antithetical to the proceedings  or not.
However, when the breach is of such a grave nature that it constitutes as serious  human rights
violation as illustrated above in Miaillhe (Miailhe v. France) and Iliya Stefanov (Iliya Stefanov v.
Bulgaria, App.) the same will lead to exclusion of the evidence from admissibility. 

Stating that the defendant’s right to privacy and liberty were infringed in a disproportionate 
manner in the present case as established earlier, the same shall constitute a violation of grave 
nature. Differentiating the facts of the present matter from the case of Lubanga (The Prosecutor v.
Thomas Lubanga Dyilo) where the  breach was of minor procedural laws, here the breach was of
multiple recognised human  rights coupled with non-alignment with the proportionality principle
while conduction of  search and seizure. Therefore, violation of the rights of the defendant were in
a grave manner so as to exclude the evidence from admissibility in the present case 

The rights of the accused have primacy over any other conflicting interest that may emerge. The
concept of fair trial which is enshrined in Article 67 of the Statute and in Articles 9(3)  and 14 of
the ICCPR also operates as an important factor to ascertain the admissibility of the  evidence under
Article 67. Violation of pretrial rights will prejudice the fairness or integrity  of trial subsequent to
the violation laid under Article 55 (Rights of persons during an  investigation).

In Lubanga (Bar Table), hundreds of documents were seized by national authorities, many of
which were unrelated to the purposes of the search. This was not a proportionate interference with
the defendant’s right to privacy.

In ECtHR cases against France, extensive searches and seizures that included irrelevant
documents were ruled to be not proportionate, especially where there was no judicial warrant. In
this case, the computers seized contained vast quantities of information that was both irrelevant to
any purported aim, and personal to Professor Targarian and her family. The interference was
disproportionate to any purported aim because less invasive alternatives were available to the
federal police and the indiscriminate nature of the search and seizure. The evidence was obtained
by means of a violation of Professor Targarian’s internationally recognised human right to privacy.
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 STATE OF ASTIPUR
Additionally, the evidence was obtained by means of a violation of the Rome Statute. Article 69(5)
requires that the Court ‘respect and observe privileges on confidentiality as provided in the Rules
of Procedure and Evidence’.

Rule 73(1) grants privilege to ‘communications made in the context of the professional
relationship between a person and [their] legal counsel’, unless the client voluntarily consents to
disclose or directly discloses the information. If evidence is subject to rule 73(1) privilege, the
Chamber must immediately order the Prosecution to cease dealing with the evidence. 

Rule 73(1) applies to the seized evidence because the relationship between Professor Targarian
and President Bannister’s Cabinet was one in which professional privilege may be invoked.
President Bannister was specifically requesting advice regarding the legality of actions on behalf of
the Cabinet.

Neither President Bannister nor members of the Cabinet have waived privilege by voluntarily
disclosing the contents of the correspondence or memoranda.  The Prosecution has not provided
evidence of disclosure as required by rule 73(1)(b). The memoranda remain privileged and a
failure to respect this privilege violates article 69(5) and the Rome Statute.  Having established that
the evidence was collected by one of the above violations, if its admission is antithetical and
seriously damage to the integrity of the proceedings, then the evidence is inadmissible. 

First, in Lubanga (Bar Table), the Trial Chamber referred to suggestions that 'integrity of the
proceedings' including ‘respect for the rights of the person’.All considerations relating to exclusion
of evidence are secondary to fair trial considerations. Respect for the rights of a Defendant is
therefore an important consideration. Professor Targarian’s right to privacy and to privilege over
communications between a person and their legal counsel have been violated. Neither of these
were a ‘minor breach of procedural rules’ as in the case of  Lubanga (BarTable).

Article 21(3) requires this Chamber to apply and interpret the Rome Statute  consistently with
internationally recognised human rights. To accept the seized documents would be fundamentally
unfair to Professor Targarian and result in a case being founded on human right violations. Astipur
submits that the first and the second limb of article 69(7) is satisfied.

2. The airstrikes conducted by Astipur do not amount to crime of aggression as per   the
ICC Statute. 

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 STATE OF ASTIPUR
The PTC erred in concluding that the ICC has jurisdiction over the alleged crime of  aggression
in the present case as 

[1] the use of force by Astipur against Bravos was not  violative of the U.N. Charter or
customary international law.

 [2] Alternatively, such use of  force does not satisfy the criteria of “character, gravity and
scale” so as to constitute a  manifest violation of the U.N. Charter. 

Astipur’s airstrikes against Bravos was not violative of the U.N. Charter or  customary
international law. Astipur’s measures were that of humanitarian intervention, because there was
a  compelling obligation to prevent crimes against humanity in Bravos. [ii.] Use of force for
this  purpose does not violate the UN Charter; [iii.] and its legality is confirmed by state practice 
and opinio juris. 

There was convincing evidence of a humanitarian emergency as, on  21 July 2018, Bravos
deployed dozens of chlorine aerial bombs on its own citizens who  were protesting for better
wages and working conditions resulting in the death of 800  people. Immediately, the U.N. 
Security Council convened an emergency session to condemn Bravos’ use of chlorine gas, which
was blocked. Consequently, the government of Bravos  fired another dozen of chlorine aerial
bombers which killed 1400 civilians including women  and children. The situation in Bravos
was extremely volatile with several large-scale  protests against the gas attacks commencing in
three different cities.  In this regard, it is further submitted that 

[1] there was an obligation to prevent further  perpetration of crimes against humanity against
the citizens of Bravos. 

[2] This obligation to  was exercisable beyond the territory of Astipur and

 [3] and this obligation is not barred by Article 2(4). 

The obligation, to prevent use of chemical weapons for crimes against humanity, is not 
territorially limited due to the universal character of the condemnation of this crime, and 
the necessity to react quickly and effectively, to meet this obligation. This obligation entailed
taking “necessary” and “appropriate” actions in order to avert the said  humanitarian crisis. The
Court must apply methods of harmonious interpretation in order  to resolve the conflict between
the two norms. Article 2(4) prohibits force which is  “inconsistent with the purposes of the
Charter”, which is not the case with crimes against humanity. 

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There was no other practical alternative to the use of force as Astipur had  already resorted to the
UNSC to condemn and to take measures against the further use of chemical weapons. Due to the
failure of the Security Council to act, there was no  other ‘reasonable alternative’, than to use
force on the chemical weapons facilities of  Bravos. 

The force used must be restricted in time and scope, to the humanitarian aim. Proportionality
requires assessment of two matters,

 1) the ‘attack’ must be limited to  specific ‘military objectives’, and,

 2) that all feasible precautions are taken to minimize incidental loss of or injury to civilian
life.

The attacks were strictly limited to the military objective in question, which was the 
decapacitation of the three sites of storage, production and launch of chemical weapons in 
Bravos. Further, the attacks were conducted during the early morning hours, to minimize 
casualties. There was no excessive damage to civilian life or property, in comparison to the 
objective of the airstrikes.

According to Article 2(4) of the U.N. Charter, States are prohibited from the use of force used 
against the “territorial sovereignty or political independence” of another State, or in any  manner
that is inconsistent with the purposes of the UN.   A literal interpretation of the  Article 2(4) in
good faith, in light of the historical usage of the terms “territorial  sovereignty” and “political
independence”, will give the result that only those uses of force which are aimed towards
specific unlawful purposes, such as when it is used to acquire  territory or subversion of a
government, are prohibited by Article 2(4).  Therefore, Article  2(4) does not prescribe use of
extremely limited force, with the aim of preventing grave violations of human rights, since not
affecting the territorial integrity or political  independence of the state.

The Vienna Convention on the Law of Treaties,1969 mandates that a treaty must be read in
light of its objects and purposes. The  principle in Article 2(4) is only one of the principles
sought to be protected by the Charter. One of the primary purposes of the U.N. Charter is solving
issues of humanitarian character, and promoting respect for, and  observance of human rights.
Disarmament and regulation of armament is also one of such  purposes.  While achieving
international peace and security is the ultimate goal of the UN Charter the same is not limited to
absence of use of any use of force. Therefore, recognizing  limited use of force as legal, to avert
grave humanitarian crises, protects the fundamental  principles of the Charter as a whole.

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Article 31(3)(b) of the Vienna Convention on the Law of Treaties, 1969 permits the Charter to
be interpreted in an evolutionary manner, according to evolving context,   and by taking recourse
to subsequent State practice with  regards to the application of the Charter. Subsequent state
practice and opinio juris recognizes humanitarian intervention as legal, and the Charter must be
read in light of  the same 

Alternatively, the use of force, by its “character, gravity and scale”, does not  “manifestly”
violate the UN Charter.  The act of aggression, by its “character, gravity and scale”, must be
manifestly in violation of the  UN Charter. The “manifest” requirement excludes de minimis
interventions, as being of  insufficient “gravity and scale” and acts, whose legality, by their
“character”, are  questionable.

“Gravity” and “scale” refer to the seriousness and size of the violation, along with its 
consequences. Article 8bis excludes de minimis interventions such as extremely limited  and
focused actions, as shown by state practice and opinio juris, which do not warrant the  ICC’s
attention. The use of force in the present was only a de minimis violation, as being extremely
narrow in  scale while targeting only three sites for storage and production of chemical weapons
and  stockpiles, and inflicting minimal casualties, in the process. First, the term “character”
excludes all actions of questionable legality and borderline  cases. In order to be a manifest
violation, the action, by its character, must be unambiguously illegal. Second, “character” also
excludes from the scope of Article 8 bis, the uses of force that are  not committed with hostile
intent or aggressive purposes, and thus, acts committed with a  humanitarian purpose, are not
crimes of aggression.

ISSUE-3THE PTC ERRED IN TREATING DANI TARGARIAN CRIMINALLY

LIABLE FOR AIDING AND ABETTING THE ALLEGED CRIME OF
AGGRESSION. 

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The Statute does not envision a privately commissioned lawyer, giving advice on the legality  of
a State action, as an accomplice to the Crime of Aggression; In any case, she did not aid, abet or
otherwise assist the commission of the alleged crime, for the purpose of  Art.25(3)(c) of the
Statute 

1. The Statute does not punish a privately commissioned lawyer, for aiding/abetting a crime of
aggression, for giving a legal opinion as to the legality of an act. 

Article 25 3bis requires that persons must be in a position to effectively exercise control over  or
direct the political and military action of a State, in order to be prosecuted for the crime of 
aggression, or abetment thereof. Therefore, privately commissioned lawyers are excluded  from
the ambit of Article 25 3bis.

 Arguendo, Dani Targarian did not have not the ability to  ‘control or direct’ the
political/military ‘actions’ of Astipur 

i. PRIVATELY COMMISSIONED LAWYERS CANNOT BE PROSECUTED FOR ABETTING

THE  CRIME OF AGGRESSION. 

The ambit of Article 25 3bis is limited only to political and military leaders (Prime Ministers, 
Presidents, Ministers, Commanders etc.), with decision making authority to control or direct  the
action of the State, and not by persons acting in their private capacity. Both theThe
International Military Tribunal for the Far East (IMTFE) and the International Military
Tribunal (IMT), convicted defendants, of the crime of waging aggressive war, based on their
high-level position in the government or the military, along with de facto decision-making
authority, regarding military and diplomatic preparation for aggressive war. In United States v.
Carl Krauch, et al. (IG Farben), the Nuremberg Military Tribunals acquitted private
industrialists, who did not occupy high-level positions in the Government.  In this case, it was
held that only leaders in high-level positions in the government/military can have the requisite 
knowledge of state’s aggressive policy, and thus the power to influence them. Hence, there  was
consensus amongst the IMT, NMT and the IMTFE, regarding the necessity of high-level 
position in the government, for prosecution of the crime against peace. 

Although the NMT, in the High Command case (United States of America v. Wilhelm von
Leeb et al)  held that a potential perpetrator, regardless  of official position, is at the required
policy level, if he can shape or influence the state’s  political and military action, however this
criteria was rejected by the Special Working Group on the Crime of Aggression.

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Therefore, privately commissioned lawyers, being outside the political/military leadership of  the
state which has the decision making authority regarding preparation, initiation or  execution of
aggressive policy. Due to this, they cannot possess the requisite amount of  knowledge of such
aggressive plans, and thus lack actual power to control or direct any such  policy/actions.
Therefore, they do not come under the ambit of Article 25 3bis.  

The SWGCA adopted the ‘control or direct’ criteria, as opposed to ‘shape and influence’ 
which was laid down by the NMT.  Dani Targarian acted only in an advisory capacity to the
President of Astipur. Her role was  limited only to commenting on the legality of the
contemplated airstrikes under International  law. The same, qualifies neither as exercising
‘control’ or domination over the commission of  the alleged acts of aggression, nor actual
direction of any operative value. The decision of  Astipur’s cabinet to conduct the airstrikes in
question, was not controlled or directed by Dani Targarian in any manner. Moreover, Dani does
not satisfy the ‘effective control’ criteria  either, since as a privately commissioned lawyer, 

1) she never had the capacity to direct  Astipur’s state machinery towards committing specific
actions and 

2) or the capacity to  authoritatively ensure the enforcement of such directions.

Therefore, Dani Targarian was  not in the position to have de facto effective control over, or
direct the actions of Astipur to  conduct airstrikes against Bravos. However, she would satisfied
the ‘control’ or ‘direct’  requirement, only if she occupied a high level position in Astipur’s
government, with the  capacity to have decisive influence over its policy making.

Therfore, Dani Targarian, not occupying a high-level position in Astipur’s  government/military,

and also lacking the ability to ‘control or direct’ Astipur’s ‘actions’, is  excluded from the ambit
of Article 25 3bis. Dani’s act of rendering a legal opinion with respect to the contemplated
airstrikes on Bravos,  satisfies neither the subjective elements [i.]; nor the objective elements of
Article 25(3)(c) [ii.] 

i. DANI’S ACTIONS DO NOT SATISFY THE SUBJECTIVE ELEMENTS OF ARTICLE

25(3)(C). 

Dani’s act of discharging a legal opinion in favour of Astipur’s right to humanitarian 

intervention against Bravos, in order to save Bravos’ population from grave and systematic 
violation of human rights, was without the intention and knowledge that it would assist in the 

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commission of the alleged crime of aggression [a.]; and even if she did, it was not with the 
‘purpose’ of facilitating the alleged crime[b.]. 

a. Dani lacked the requisite intention and knowledge required within Article 30. 

Article 30 requires that a person shall be criminally responsible for aiding and abetting, only  if
he either [1.] intended to cause a particular consequence or [2.] is aware that that particular 
consequence will occur in the ordinary course of events, during the conduct of abetment.The
‘consequence’ in question is the facilitation of the use of force by aggressive use of force  by
Astipur, which was the bombing of the three specific locations in Bravos. Presuming  Astipur’s
leadership had any aggressive plans against Bravos, 

1) Dani did not have the requisite guilty intention in relation to such consequence.  

Such an intention could not be formed in the absence of knowledge of Astipur’s allegedly 
aggressive plans against Bravos. Dany is not criminally liable, in absence of conclusive  evidence
showing that she tendered her legal opinion with the knowledge that the same  would be used in
committing the crime of aggression against Bravos, through the three  specific bombings, or
showing her knowledge of the extent of such plans. She was not  sufficiently connected or
involved in the planning of the alleged to commit the crime of  

  
aggression, to have such knowledge, in the absence of which she could not have the guilty 
intention with respect to the said consequence. She had knowledge only with respect to a 
possible use of force for humanitarian purposes. 

2) Dani cannot be said to have been aware that ‘such consequences will occur in the  ordinary
course of events’.

At the time of the commissioning of the said legal opinion to James Bannister, there was no 
‘virtual certainty’ or inevitability that any use of force would be authorized by Astipur’s  cabinet
(even on the basis of her legal memorandum). There was only a mere possibility or  risk, which
is not sufficient, and cannot qualify as possession of knowledge that any crime  would be
committed consequently. Astipur’s cabinet took into account a host of  considerations, including
the legality of such actions, which cumulatively assisted in deciding  to authorize the use of
force. Therefore, Dany could not possess the knowledge that Astipur  will inevitably use force
on the basis of her legal memorandum. 
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b. The alleged act of abetment was not for the purpose of facilitating the commission  of the
crime of aggression. 

There must be evidence of a particular intent or motive (such as an aggressive or genocidal 

mens rea) . The accused must have lent their assistance with the specific aim of facilitating  the
offence. Mere knowledge that the conduct would assist the principal perpetrator in the  

  
commission of the offence is not enough. For instance, In Popovic et al, although the  defendant
had the knowledge that their assistance would assist the principle perpetrator in  forcible
transfers (the main crime), the prosecution could not prove that the same was for the  assistance
was for the purpose of such criminal activity, because the assistance was of a  humanitarian aim.

Thus, only if Dani had tendered her legal opinion, with the specific purpose that her legal 
opinion leads to the crime of aggression being committed by the leadership of Astipur, would 
she be held liable under Article 25(3)(c). In the present case, she only commented on the  legality
of the contemplated airstrikes. It cannot be established beyond reasonable doubt, that  her
purpose was to facilitate the use of allegedly aggressive force against Bravos, on the three 
specific locations.158 Although she was aware that airstrikes could potentially expose  Astipur’s
leadership to prosecution for the crime , the same does not suffice for Article  25(3)(c).

ii. THE OBJECTIVE ELEMENTS (ACTUS REI) OF AIDING AND ABETTING ARE NOT
SATISFIED. 

The nature of the said assistance, in the form of a legal memorandum, does not qualify as 
‘aiding’ or ‘abetting’ [a.]; however, the memorandum did not have substantial impact on the 
decision making of Astipur’s cabinet [b.]. 

a. The nature of the assistance does not qualify as ‘aiding’ or ‘abetting’. 

‘Aiding’ refers to rendering practical or material assistance, while ‘abetment’ would connote 
imparting moral or psychological assistance. Even if the assistance is not material, it must be in
the form of moral support or sympathy. Thus, the Statute prohibits assistance only as  physical or
moral support, sympathy, exhoratation or encouragement  

In the present case, the legal memorandum drafted by the defendant, objectively commenting  on
the legality of the contemplated airstrikes, was neithert of the nature of practical/material 
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assistance, nor in the form of active lending of moral support or encouragement. The Statute 
requires the criteria of ‘moral support’ or ‘encouragement’ as an objectively quality of the  said
assistance.  

b. Dani’s acts did have a substantial effect on the actions of the Cabinet of Astipur. 

The acts of the abettor must have a substantial effect, and must make a significant  difference to
the perpetration of the crime. The prosecution must establish that there is a  ‘causal connection’
between the actions of the defendant and the commission of the alleged  crime of
aggression.There must be a direct link between the actions of the accused and the  alleged crime
committed. The requirement of ‘substantial contribution’ is customary  international law.

In the instant case, the actions of Dani Targarian, of rendering a legal evaluation of the  legality
of the contemplated airstrikes, did have a substantial contribution towards the  planning and
initiating of the contemplated airstrikes, by Astipur’s cabinet. It cannot be  denied that the legal
validity of any such actions did not objectively impact the decision  making with respect to the
same. Her legal opinion had a direct link with the planning and  preparation of the airstrikes on
Bravos’ territory. 

  

SUBMISSIONS 

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 STATE OF ASTIPUR
Wherefore in the light of the issues raised, arguments advances and authorities cited, it is most 
humbly prayed to this Appeals Chamber that it may be pleased to declare that, 

I. The evidence seized from the home of the Defendant under the circumstances described in  the
Pre-Trial Chamber’s opinion must be excluded under Article 69(7) of the ICC Statute. 

II. The \ facts described in the Pre-Trial Chamber’s decision were not of the “character,  gravity
and scale” to “constitute a manifest violation of the Charter of the United Nations” as  required
for the prosecution of the crime of Aggression under Article 8bis of the ICC Statute. 

III. A lawyer who on commission provides the government one-sided legal advice calculated  to
justify an armed attack on another State cannot be prosecuted for aiding and abetting the  Crime
of Aggression under Article 25(3)(c) of the ICC Statute.

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