ICC MOOT COURT COMPETITION IN THE ENGLISH

LANGUAGE 2024
DEFENSE COUNSEL

TEAM NUMBER: 110

TOTAL WORD COUNT: 6838

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Original: English Date: 17 March 2024

THE APPEALS CHAMBER

CASE BEFORE THE INTERNATIONAL CRIMINAL COURT:

PROSECUTOR V. LIONEL STRONG

The Defense Counsel's Submission in the Appeal of the

Pre-Trial Chamber's Decision on Confirmation of Charges

against the Defendant Lionel Strong

SOURCE: DEFENSE COUNSEL FOR LIONEL STRONG

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 TABLE OF CONTENTS

INDEX OF AUTHORITIES ..................................................................................................... 5

TABLE OF ABBREVIATIONS ................................................................................................ 8

STATEMENT OF FACTS ...................................................................................................... 10

ISSUES RAISED ..................................................................................................................... 12

SUMMARY OF ARGUMENTS .............................................................................................. 13

ARGUMENTS.......................................................................................................................... 14

ISSUE 1. WHETHER THE PRE-TRIAL CHAMBER ERRED IN HOLDING THAT

THE ICC LACKED JURISDICTION OVER THE DEFENDANT BECAUSE
THE REPUBLIC OF SIRAX HAD WITHDRAWN FROM THE ROME
STATUTE (RS) UNDER ARTICLE 127 OF THE STATUTE DESPITE THE
PROSECUTOR’S PUBLIC ANNOUNCEMENT OF A PRELIMINARY
EXAMINATION PRIOR TO THE EFFECTIVE DATE OF SIRAX’S
WITHDRAWAL? .................................................................................................... 14

1.1. THAT THE PRECONDITIONS TO THE EXERCISE OF THE

JURISDICTION SET OUT IN ARTICLE 12 OF THE STATUTE MUST EXIST
AT THE TIME THAT THE COURT’S EXERCISE OF THE JURISDICTION IS
TRIGGERED UNDER ARTICLE 13 OF THE STATUTE. ................................ 15

1.2. THE PRECONDITIONS WERE NOT MET AS THE REPUBLIC OF SIRAX

WAS NOT A STATE PARTY AT THE RELEVANT TIME. ................................ 15

1.3. THE COURT’S JURISDICTION COULD NOT BE TRIGGERED. .............. 17

ISSUE 2. WHETHER THE PRE-TRIAL CHAMBER ERRED IN HOLDING THAT

THE ALLEGATIONS AND EVIDENCE ARE INSUFFICIENT TO
ESTABLISH SUBSTANTIAL GROUNDS TO BELIEVE THAT THE
DEFENDANT COMMITTED ATTACKS ON HISTORIC MONUMENTS IN A
NON-INTERNATIONAL ARMED CONFLICT UNDER 8(2)(E)(IV) OF THE
STATUTE OR THE CRIME AGAINST HUMANITY OF PERSECUTION
UNDER ARTICLE 7(1)(H) OF THE STATUTE ................................................. 19

2.1. STANDARD OF PROOF IN THE CONFIRMATION OF CHARGES HEARING

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 ........................................................................................................................... 19

2.2. THE ELEMENTS OF CRIME AGAINST HUMANITYT UNDER ARTICLE

7(1)(h) ARE NOT FULFILLED ......................................................................... 21

2.3. THERE WAS NO CRIMINAL INTENT IN THE COMMISSION OR

ORDERING OF THE ALLEGED CRIME. ........................................................ 23

ISSUE 3: WHETHER THE PRE-TRIAL CHAMBER ERRED IN HOLDING THAT

THE DEFENDANT WAS NOT FIT TO STAND TRIAL UNDER ARTICLE
64(2) OF THE STATUTE AND RULE 135 OF THE COURT’S RULES OF
PROCEDURE AND EVIDENCE? ...................................................................... 24

3.1. ACCUSED PERSON MUST POSSESS THE MENTAL CAPACITY TO

UNDERSTAND THE NATURE OF THE CHARGES BROUGHT AGAINST
HIM. ................................................................................................................... 25

3.2 Rule 135 of the Court’s Rules of Procedure and Evidence: .............................. 25

3.3. THE ROLE OF PROSECUTOR-INDUCED TENSION ................................... 26

3.4. LEGAL STANDARD TO ESTABLISH AN ACCUSED’S FITNESS TO STAND

TRIAL ................................................................................................................. 26

3.5. TO UNDERSTAND THE NATURE OF THE CHARGES/TO UNDERSTAND

THE COURSE OF THE PROCEEDINGS: ....................................................... 27

3.6. MEDICAL OPINIONS AND EXPERT TESTIMONIES IN FAVOR OF

FITNESS: ........................................................................................................... 28

3.7. Medical Reports Supporting Competency: ....................................................... 28

3.8. Constitutional Implications: A. Right to a Fair Trial: ..................................... 28

3.9. Pre-trial XV’S findings and conclusion in favour of accused not to stand fit the
trial..................................................................................................................... 29

PRAYER FOR RELIEF......................................................................................................... 30

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 INDEX OF AUTHORITIES

ICC CASES

Dissenting opinion of judge perrin de brichambaut and judge lordkipanidze(para29) .................... 16

ICC, Prosecutor v. Ahmad Al Faqi Al Madhi, ICC-01/12-01/15, ................................................... 21
Prosecutor v Ruto & Sang (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a)
and (b) of the Rome Statute), Case No. ICC-01/09-01/11-373 (23 January 2012), ¶213 ............ 21
Prosecutor v Ruto & Sang Case No. ICC-01/09-01/11-373 ............................................................ 20
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (2008), ICC 01/04-01/07, Pre-trial
Chamber I, .................................................................................................................................... 18
Situation in Hondauras, ICC, Article 5 Report (October 2015), ¶102. ............................................ 21
Situation in the Republic of Burundi, ICC01/17-X-9-US-Exp, 9 November 2017, ICC-01/17-9-
Red, ............................................................................................................................................... 16
The Prosecutor v Germain Katanga (2014), ICC-01/04-01/07, ....................................................... 19
The Prosecutor v. Thomas Lubanga Dyilo (2012), ICC, ICC-01/04-01/06, .................................... 19
The Prosecutor v. Thomas Lubanga Dyilo (2012), ICC-01/04-01/06, Trial Chamber I,................. 19

ICTY CASES

(Orić Appeal Judgement, para. 9 ...................................................................................................... 25

Blagojević and Jokić Appeal Judgement, para. 226; ....................................................................... 26
Blagojević and Jokić Appeal Judgement, para. 9; ........................................................................... 25
Blaškić, ICTY Appeals Judgement, 29 July 2004, para. 41............................................................. 23
Brñanin Appeal Judgement, para. 13. .............................................................................................. 26
Čelebići Appeal Judgement, para. 458) ........................................................................................... 26
Had`ihasanovi} and Kubura Appeal Judgement, para. 10 ............................................................... 26
Hadihasanovi} and Kubura Appeal Judgement, para. 9 .................................................................. 25
Halilović Appeal Judgement, para. 8 ............................................................................................... 25
Halilović Appeal Judgement, para. 9; Simi} Appeal Judgement, para. 10 ...................................... 26
ICTY, Proscutor v. Vasiljević, "Judgement", IT-98-32-T, 29 November 2002, ............................. 23
ICTY, Prosecutor v. Dario Kordic & Mario Cerkez, IT-95-14/2-T, 26 February 2001, para. 859 . 21
ICTY, Prosecutor v. Kunarac, Kovac and Vukovic, "Judgement", IT-96-23-T and IT-96-23/1-T, 23
ICTY, The Prosecutor v. Tihomir Blakic, IT-95-14-T, 3 March 2000, ........................................... 21
ICTY; Prosecutor v. Kunarac, Kovac and Vukovic, "Appeals Judgement", IT-96-23-T and IT-96-
23/1-A, .......................................................................................................................................... 23

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Krstic, ICTY Trial Judgement, 2 August 2001, para. 601. .............................................................. 23
Kubura Appeal Judgement, para. 10; ............................................................................................... 26
Kupre{ki} et al. Appeal Judgement, para. 30. ................................................................................. 26
Kvo~ka et al. Appeal Judgement, para. 18; ..................................................................................... 26
Orić Appeal Judgement, paras 10-11 ............................................................................................... 26
Prosecutor V Blaskic Para 100 & 101 .............................................................................................. 21
Prosecutor v Jadranko Prlić, Case No. IT-04-74-T, TC (29 May 2013), ......................................... 21
Prosecutor v Tihomir Blaskic (Trial Judgement), Case No. IT-95-14-T, ICTY .............................. 21
Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Motion
Re Fitness to Stand Trial, 10 March 2008 .................................................................................... 28
Prosecutor v. Pavle Strugar (IT-01-42-A) para 109 ......................................................................... 25
Prosecutor v. Tadić (1997), ICC IT-94-1-T, Trial Chamber, [561]. ................................................ 19
Prosecutor v. Tadić (1997), ICC IT-94-1-T, Trial Chamber, [562]. ................................................ 20
Stakić Appeal Judgement, para. 219; ............................................................................................... 26
Vasiljevi} Appeal Judgement, para. 8 .............................................................................................. 26

ICTR CASES

; Musema Appeal Judgement, para. 18.) .......................................................................................... 25

Bagilishema Appeal Judgement, para. 11 ........................................................................................ 25
Prosecutor v George Rutaganda (1999), ICTR, Case No ICTR-96-3-T, Trial Chamber 1, ............ 19
Prosecutor v Ndindiliyimana et al., Case No. ICTR-00-56-T.......................................................... 21

NATIONAL CASES

“Malaysia, High Court of Muar, Public Prosecutor v. Misbah Bin Saat [1997] 3 MLJ 495, p. 504: “
...................................................................................................................................................... 28
Brown v. State. ................................................................................................................................. 28
Cf. R. v. Podola [1959] Cr. App. 3................................................................................................... 28
High Court of Australia, pp. 246-248: ............................................................................................. 28
Kesavarajah v. R [1994] ................................................................................................................... 28
Ngatayi v. R [1980] 147 CLR 1, ...................................................................................................... 28
Republic of the Philippines Supreme Court, Pangilinan et al v. Cayetano et al., Decision on
applications G.R. No. 238875, 239483 and 240954, 16 March 2021, part XV ........................... 16
Snyder v. Massachusetts .................................................................................................................. 25

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 TREATIES AND CONVENTIONS

ICC Statute, Preamble ..................................................................................................................... 16

ICC Statute Art18(1) ....................................................................................................................... 15
ICC Statute Art 12 ............................................................................................................................ 14
ICC Statute Art 127(2) ..................................................................................................................... 16
ICC Statute art 15(4) ........................................................................................................................ 17
ICC Statute Art 25 ............................................................................................................................ 22
ICC Statute Art 64(2). ...................................................................................................................... 24
ICC Statute Art 69(7)(b). ................................................................................................................. 18
ICC Statute, art.7(1)(H). ................................................................................................................... 22

RESEARCH ARTICLES

Greig, D. W. (1985). The underlying principles of international humanitarian law. The Australian
Year Book of International Law Online, 9(1), 46-93. .................................................................. 22
HBEV: 00021 Report on Amnesia Author Elizabeth Race ............................................................. 27
ICRC, Violence, and the Use of Force, pg.12. ................................................................................. 23
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal
Court: Sources and Commentary (2003), p.21: ........................................................................... 20

OTHERS

https://www.cdc.gov/aging/pdf/cognitive_impairment/cogimp_poilicy_final.pdf .......................... 26
https://www.studysmarter.co.uk/explanations/psychology/forensic-psychology/fitness-to-stand-
trial/#:~:text=The%20psychological%20criteria%20for%20determining,understanding%20of%2
0the%20legal%20process. ............................................................................................................ 27
Rules of Procedure and Evidence Rule 135. .................................................................................... 24
Rules of Procedure and Evidence, Rule 135. ................................................................................... 24
See J. Kleffner, „ICC (Trigger Mechanisms)‟, in A. Cassese (ed.), The Oxford Companion to
International Criminal Justice (Oxford University Press, 2009), pp. 353-354;............................ 15

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 TABLE OF ABBREVIATIONS

ICC International Criminal Court

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former

Yugoslavia

Appeals Chamber
AC

PTC Pre-Trial Chamber

UDHR Universal Declaration of Human Right

Common Legal Representative of the Victims

CLRV

UNESCO The United Nations Educational, Scientific and

Cultural Organization

UNSC United Nations Security Council

RPE Rules of Procedure and Evidence

Art. Article

Elements of Crimes
EoC

Doctor Dr. Meley Beleron

Sirax
The Republic of Sirax

OTP Office of the Prosecutor

UNO United Nations Organization

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 Rules of Procedure and Evidence
RPE

Rome Statute of the International Criminal

RS
Court

v. versus(against)

ECHR European Convention on Human Rights

VCLT Vienna Convention on the Law of Treaties

Mr. Strong Lionel Strong

UDHR Universal Declaration of Human Rights

International Covenant on Civil and

ICCPR
Political Rights

Common Legal Representative of the

CLRV
Victims

International Covenant on Economic, Social

ICESCR
and Cultural Rights

& And

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 STATEMENT OF FACTS

1. **Withdrawal from the Rome Statute:** The Republic of Sirax officially notified the
Secretary-General of the United Nations of its withdrawal from the Rome Statute effective one
year later, on 16 June 2022. The defense argues that the ICC lacks jurisdiction over Mr. Strong
because Sirax's withdrawal had become effective before the formal initiation of investigations
related to this situation.

2. **Timing of Prosecution's Actions:** The Office of the Prosecutor publicly announced a

preliminary examination of the situation in Sirax on 15 June 2021. However, a formal
investigation was not initiated until after Sirax's withdrawal became effective. The defense
contends that a preliminary examination does not constitute a matter under consideration by the
Court for purposes of Article 127(2) of the Statute, thereby questioning the Court's jurisdiction
over Mr. Strong.

3. **Allegations and Evidence Insufficiency:** The defense highlights the Pre-Trial

Chamber's findings that there are no substantial grounds to believe that Lionel Strong committed
the alleged war crime of attacking historic monuments in a non-international armed conflict
under Article 8(2)(e)(iv) of the Statute or the crime against humanity of persecution under
Article 7(1)(h). The Pre-Trial Chamber noted the lack of an armed conflict as defined under the
Statute, the protesters were not targeted based on prohibited grounds, and the destruction
occurred after the cessation of hostilities, further questioning the sufficiency of evidence against
Mr. Strong.

4. **Defendant's Unfitness to Stand Trial:** Following a hemorrhagic stroke suffered by Mr.

Strong on 21 July 2022, a court-appointed psychiatric expert, Dr. Meley Baleron, concluded that
Mr. Strong is permanently unfit to participate meaningfully in his trial due to severe short-term
memory loss, likely permanent. This assessment is based on the severity of his cognitive
impairment, making it unlikely for Mr. Strong to instruct defense counsel or to testify regarding
the events related to the proceedings.

5. **Non-Cooperation by the Republic of Sirax:** The UNESCO report on the destruction of

the Tirosh archaeological site, dated 4 July 2022, indicated that the Republic of Sirax's non-

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cooperation delayed the investigation. Furthermore, Sirax informed the ICC that it would not
cooperate in Lionel Strong's investigation, citing its withdrawal from the Statute and asserting
that Mr. Strong had done nothing wrong according to its domestic laws. These facts present a
compelling argument from the defense's perspective, challenging the ICC's jurisdiction over
Lionel Strong, questioning the sufficiency of evidence against him for the alleged crimes, and
highlighting his unfitness to stand trial due to severe cognitive impairment following a stroke.

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 ISSUES RAISED

 whether the pre-trial chamber erred in holding that the icc lacked jurisdiction over the
defendant because the republic of sirax had withdrawn from the rome statute (rs) under
article 127 of the statute despite the prosecutor‟s public announcement of a preliminary
examination prior to the effective date of sirax‟s withdrawal?

 That the ptc erred in holding that the allegations and evidence were insufficient to
establish substantial grounds

 That the pre-trial chamber erred in holding that the defendant was not fit to stand trial
under article 64(2) of the statute and rule 135 of the court‟s rules of procedure and
evidence.

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 SUMMARY OF ARGUMENTS

The prosecutor cannot frame charges by pressurizing the article 12 and by submitting that the
republic was a State party „at the time of the alleged crimes‟ and that the „ensuing
obligations‟ of the Rome Statute remain applicable notwithstanding the sirax withdrawal
from the Statute”.

II

Under Article 61(7) of the Rome Statute of the International Criminal Court 1998 ("Rome
Statute"), the prosecution must support each charge with sufficient evidence to establish
substantial grounds1 to believe that Mr. Lionel Strong has committed the crimes charged.
Sufficient evidence is concrete and tangible evidence that demonstrates a clear line of reasoning
underpinning its specific allegations. For triggering the case within the ambit of said articles
prosecution also has to satisfy all requirements mentioned. Ambit of said articles prosecution
also has to satisfy all requirements mentioned.

III

It is submitted that the Pre-Trial Chamber did not erred in holding that the Defendant was not fit
to stand trial under Article 64(2) of the Statute and Rule 135 of the Court‟s Rules of Procedure
and Evidence. As The person who is charged or aimed to be charged must be able to attend or
assisst his counsel. In the case at hand, where the weight of allegations rests upon the shoulders
of the Defendant, the question of their fitness becomes a essential aspect of ensuring the utmost
fairness and justice.

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 ARGUMENTS

ISSUE 1. WHETHER THE PRE-TRIAL CHAMBER ERRED IN HOLDING

THAT THE ICC LACKED JURISDICTION OVER THE DEFENDANT
BECAUSE THE REPUBLIC OF SIRAX HAD WITHDRAWN FROM THE
ROME STATUTE (RS) UNDER ARTICLE 127 OF THE STATUTE DESPITE
THE PROSECUTOR’S PUBLIC ANNOUNCEMENT OF A PRELIMINARY
EXAMINATION PRIOR TO THE EFFECTIVE DATE OF SIRAX’S
WITHDRAWAL?

The republic of sirax submits that the Pre-Trial Chamber “did not erred in law in finding that
the ICC lacks its jurisdiction on the basis because the Republic of Sirax had withdrawn from
the Rome Statute (RS) under Article 127 of the Statute despite the Prosecutor‟s public
announcement of a preliminary examination prior to the effective date of Sirax‟s withdrawal.

The prosecutor cannot frame charges by pressurizing the article 12 and by submitting that the
republic was a State party „at the time of the alleged crimes‟ and that the „ensuing
obligations‟ of the Rome Statute remain applicable notwithstanding the sirax withdrawal
from the Statute”.

Given that the Chamber had no contact with that matter, it is impossible to argue that there
was a matter “under consideration by the Court”. The decision on commencing preliminary
examinations is not even subjected to the Chamber‟s review, and such a superficial contact
with the facts, which is not even taken by the Decision-Making Organ of ICC, cannot be
considered to fill the requirement from article 127.2 Hence, this Court has no jurisdiction
over the present case.

In this regards defense submits that: [1] That the preconditions to the exercise of the
jurisdiction set out in article 12 of the Statute must exist at the time that the Court’s exercise
of the jurisdiction is triggered under article 13 of the Statute. [2] The preconditions were not
met as the republic of sirax was not a State Party at the relevant time. [3] The Court’s
jurisdiction could not be triggered.

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1.1. THAT THE PRECONDITIONS TO THE EXERCISE OF THE JURISDICTION SET
OUT IN ARTICLE 12 OF THE STATUTE MUST EXIST AT THE TIME THAT THE
COURT’S EXERCISE OF THE JURISDICTION IS TRIGGERED UNDER
ARTICLE 13 OF THE STATUTE.

The defence submits that Article 12 of the Statute is titled “preconditions to the exercise of
jurisdiction”, and in its second paragraph states that in the case of article 13, paragraph (a) or
(c), the Court may exercise its jurisdiction if one or more of the following States are Parties
to this Statute or have accepted the jurisdiction of the Court1

Whereas, Article 13 of the Statute is titled “Exercise of jurisdiction” and, in its relevant part,
provides that: The Court may exercis

e its jurisdiction with respect to a crime referred to in article 5 in accordance with the
provisions of this Statute if: (c) The Prosecutor has initiated an investigation in respect of
such a crime in accordance with article 15. 3. Article 15 of the Statute provides that: The
Prosecutor may initiate investigations proprio motu on the basis of information on crimes
within the jurisdiction of the Court. The Prosecutor shall analyse the seriousness of the
information received. If the Prosecutor concludes that there is a reasonable basis to proceed
with an investigation, he or she shall submit to the Pre-Trial Chamber a request for
authorization of an investigation, together with any supporting material collected. If the Pre-
Trial Chamber, upon examination of the request and the supporting material, considers that
there is a reasonable basis to proceed with an investigation, and that the case appears to fall
within the jurisdiction of the Court, it shall authorize the commencement of the investigation,
without prejudice to subsequent determinations by the Court with regard to the jurisdiction
and admissibility of a case.

1.2. THE PRECONDITIONS WERE NOT MET AS THE REPUBLIC OF SIRAX WAS
NOT A STATE PARTY AT THE RELEVANT TIME.

1
ICC Statute Art 12

15
 The Counsel for defense submits that there is a distinction between the existence of
jurisdiction and the Court‟s ability to exercise the jurisdiction, and that the preconditions to
the exercise of the Court‟s jurisdiction set out in article 12 of the Statute must exist at the
time that the exercise of the jurisdiction is triggered pursuant to article 13 of the Statute. The
wording of article 12(2) indicates that the appropriate time to make a determination as to
whether the preconditions of article 12 of the Statute are met is when the exercise of the
Court‟s jurisdiction is triggered, not when the crimes were allegedly committed.2 In other
words, the preconditions to the exercise of the Court‟s jurisdiction must exist at the time that
the jurisdiction is triggered pursuant to article 13 of the Statute, which, in the scenario
provided for in article 13(c) of the Statute, defence submits it definitely occurs when the pre-
trial chamber authorizes the commencement of the investigation, pursuant to article 15(4) of
the Statute. 3

Just as a State that is not, or is no longer, Party to the Statute cannot refer a situation to the
Court under article 13(a) of the Statute and thus trigger the Court‟s exercise of jurisdiction
though it may accept the jurisdiction of the Court under article 12(3), the Prosecutor cannot
commence the process of triggering the jurisdiction of the Court once a withdrawal has
become effective and the State in question is no longer Party to the Statute. The Court‟s
jurisdiction must be triggered before the withdrawal has become effective. Put differently,
once the State‟s withdrawal has become effective, the Prosecutor can no longer open an
investigation.

Bearing in mind that the Rome Statute is an international treaty and international criminal
code at the same time, two concomitant interests may be discerned when a State withdraws
from the Statute. Article 127 of the Statute guarantees to the State Parties a right to withdraw
from the Statute. In this regard, that it is a fundamental right of States to decide whether they

2
See J. Kleffner, „ICC (Trigger Mechanisms)‟, in A. Cassese (ed.), The Oxford Companion to International
Criminal Justice (Oxford University Press, 2009), pp. 353-354;
3
ICC Statute Art18(1)

16
 want to be bound by a treaty or not.4 Defense is aware of mindful of the Statute‟s important
objective “to put an end to impunity”.5

There is a clear potential for conflict between these two competing considerations. Indeed,
there is a risk that a State may use its right to withdraw from the Statute in order to shield
certain persons from the Court‟s prosecution. Defense submits that the Statute strikes the
right balance between these competing considerations and provides for a procedure that
enables the Court to prevent any misuse of the State‟s right to withdraw. Article 127(1) of the
Statute stipulates that “the withdrawal shall take effect one year after the date of receipt of
the notification”. Therefore, the Prosecutor has to make all efforts to trigger the Court‟s
jurisdiction in a manner that would not infringe the right of a State to withdraw from the
Statute.

1.3. THE COURT’S JURISDICTION COULD NOT BE TRIGGERED.

It is further submitted that the Statute strikes fair balance between these interests, by
providing in article 127 a buffer period of one year for the state withdrawal to take effect. 6
one year is sufficient for the Prosecutor to request the authorisation of the investigation, and
for the PTC to rule upon such a request 7 But in instant case the prosecutor was aware that”,
the Republic of Sirax notified the Secretary General of the United Nations on 16 June 2021
that it was withdrawing from the Statute, effective in one year, on 16 June 2022.”it was duty
of the otp he should have requested the court for the authorization of investigation under
article 15 because it was in knowledge of otp that sirax had withdrawan from the statute that
will be effective in one year until that time of year state of sirax was under obligation to
cooperate with OTP,8 although the prosecutor never approached for the cooperation. The otp
initiated investigation after completion of withdrawal.

4
Republic of the Philippines Supreme Court, Pangilinan et al v. Cayetano et al., Decision on applications G.R. No.
238875, 239483 and 240954, 16 March 2021, part XV
5
ICC Statute, Preamble
6
ICC Statute Art 127(2)
7
Dissenting opinion of judge perrin de brichambaut and judge lordkipanidze(para29)
8
Pre-Trial Chamber III, Situation in the Republic of Burundi, Decision Pursuant to Article 15 of the Rome
Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi, ICC01/17-X-9-US-
Exp, 9 November 2017, ICC-01/17-9-Red, para. 26.

17
 However, defence submits that the better view is that a situation is only “under
consideration” by the Court once the OTP has asked the PTC to authorise an investigation. I
suggest that PEs may not constitute a “matter” before “the Court”. PEs are preliminary,
informal processes with “no particular applicable legal framework and no direct legal
consequences” (Dov Jacobs). They are solely initiated by the OTP, which is one organ of the
Court and may not embody “the Court”. Instead, “the Court” may refer to Chambers. For
example, Article 95 of the Statute refers to Chambers when it uses the same phrase “under
consideration by the Court” Furthermore, it does not befit the OTP‟s role to unilaterally
determine States‟ obligations after their withdrawal. (Amnesty
International) and (Whiting) argue for a broad interpretation of Article 127(2) of the Statute,
so that States cannot prejudice consideration of PEs and thereby avoid the Court‟s
jurisdiction. The OTP has (sweeping discretion) to initiate any PE that is not “manifestly
beyond” the Court‟s jurisdiction, under Article 15 of the( Statute). Yet this power is subject
to checks and balances, including the need for the OTP to seek Court authorization for an
investigation in Article 15(3) of the Statute. Ultimately, the may not be sirax may not be
obligated to cooperate with the PE into the Situation in the Philippines after its withdrawal,
but it would be obligated under an investigation.

The Statute thus gives the Court an opportunity to assert its jurisdiction. However, it also
respects the States‟ right to withdraw from the Statute and therefore provides for limitations
to this power of the Court. Without such limitations, the Court‟s jurisdiction would stretch to
an extent that would defy the assurances and guarantees to the States embedded in the Statute
this could have negative repercussions for the entire Court‟s system. In the instant situation,
since the Prosecutor had not proceeded to trigger the Court‟s jurisdiction before the
withdrawal became effective, the republic of sirax reasserted what it considered to be its
primary jurisdiction.

Defence submits that In instant case on 5 July 2022, the Office of the Prosecutor filed a
request for authorization to commence an investigation of the Situation in The Republic of
Sirax,(facts) although the republic of sirax was no longer a Party to the Statute, its
withdrawal having become effective on 15 june 2022.9 It is further noted that the Pre-Trial

9
ICC Statute Art 15(4) and Rule 48.

18
 Chamber issued its Article 15(4) Decision, authorising the commencement of the
Prosecutor‟s investigation, on 05 july 2022 the same day an it was the month after the
republic of sirax withdrawal took effect.10 Hence PTC was correct in holding that it lacks
jurisdiction.

ISSUE 2. WHETHER THE PRE-TRIAL CHAMBER ERRED IN HOLDING

THAT THE ALLEGATIONS AND EVIDENCE ARE INSUFFICIENT TO
ESTABLISH SUBSTANTIAL GROUNDS TO BELIEVE THAT THE
DEFENDANT COMMITTED ATTACKS ON HISTORIC MONUMENTS IN A
NON-INTERNATIONAL ARMED CONFLICT UNDER 8(2)(E)(IV) OF THE
STATUTE OR THE CRIME AGAINST HUMANITY OF PERSECUTION
UNDER ARTICLE 7(1)(H) OF THE STATUTE

2.1. STANDARD OF PROOF IN THE CONFIRMATION OF CHARGES HEARING

Under Article 61(7) of the Rome Statute of the International Criminal Court 1998 ("Rome
Statute"), the prosecution must support each charge with sufficient evidence to establish
substantial grounds111 to believe that Mr. Lionel Strong has committed the crimes charged.
Sufficient evidence is concrete and tangible evidence that demonstrates a clear line of reasoning
underpinning its specific allegations.12 for triggering the case within the ambit of said articles
prosecution also has to satisfy all requirements mentioned. Ambit of said articles prosecution
also has to satisfy all requirements mentioned.

2.1.1. THE CONDUCT TOOK PLACE IN THE CONTEXT OF AND WAS ASSOCIATED
WITH AN ARMED CONFLICT NOT OF AN INTERNATIONAL CHARACTER.

10
ICC Statute Art 69(7)(b).
11
ICC Statute Art 61(5),
12
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (2008), ICC 01/04-01/07, Pre-trial Chamber I,
(Decision on the confirmation of charges), [65].

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NATURE OF THE ARMED CONFLICT

THE ARMED ATTACK BETWEEN MUNICIPAL SECURITY FORCES AND

KARAXIS PARTY IS NOT A NON-INTERNATIONAL ARMED CONFLICT (NIAC)

An armed conflict exists whenever there is a resort to armed force between States or protracted
violence between governmental authorities and organized armed groups or between such groups
within a State.13To attract common article 3 it is essential that all requirements or pre-requisite
must be fulfilled or at least minimum standards set by this court in Tadic case must be present.
For the Rome Statute, the existence of protracted violence. 14 depends on the: i) Sufficient degree
of the organizations involved in the conflicts; and ii) The intensity of the conflict. The following
non-exhaustive factors help to determine whether an organization has a sufficient degree of
organisation15 a) The force‟s internal hierarchy; b) The command structure and rule; c) The
extent to which military equipment is available; d) The force‟s ability to plan military operations
and put them into effect; e) And the extent, seriousness, and intensity of any military
involvement.
- Applying the test mentioned above, Karaxis party does not possess a considerable number of
participants.16 However, Karaxis party did not show any sign of internal hierarchy nor structure
of command and rule, this is endorsed by the fact that throughout the conflict, there was no sign
of proper planning or a group of commanders to lead towards a common legal goal.. even they
arrived on the time of demolition that does not show any proper planning and they arrived in
partitions half arrived on first day and half on second day.

- Apart from a sufficient degree of organization, there must also be a high-intensity conflict
between parties. Generally, the intensity of the armed conflict is decided on a case-to-case
basis.17 12 the fact that the conflict between Karaxis party and municipal security forces has
shown that there is no organized or planned attack was made which surely resulted in

13
The Prosecutor v. Thomas Lubanga Dyilo (2012), ICC-01/04-01/06, Trial Chamber I, (Judgement pursuant to
Article 74 of the Statute), [533]; Prosecutor v. Tadić (1997), ICC IT-94-1-T, Trial Chamber, [561].
14
The Prosecutor v Germain Katanga (2014), ICC-01/04-01/07, Trial Chamber II, [1185] (French).
15
The Prosecutor v. Thomas Lubanga Dyilo (2012), ICC, ICC-01/04-01/06, Trial Chamber I, (Judgement pursuant
to Article 74 of the Statute), [537].
16
Facts para
17
Prosecutor v George Rutaganda (1999), ICTR, Case No ICTR-96-3-T, Trial Chamber 1, [93].

20
catastrophe. The main target was the site to demolish and construct a airpot runway not the
protestors although it was not a planned attack neither the protestors were target.

- However, it should be noted that the criteria of intensity and a sufficient degree of organization
are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry,
unorganized and short-lived insurrections, or terrorist activities, which are not subject to
International Humanitarian Law (IHL).18 The struggle that was faced by The Republic of Sirax
however, amounts to internal disturbances. The jurisdiction of Article 8(2)(e)(4)and Article
7(1)(h) of the Rome Statute cannot efficiently cover the situation between Karaxis and The
Republic of Sirax.

2.1.2 THE PERPETRATOR WAS AWARE OF FACTUAL CIRCUMSTANCES THAT

ESTABLISHED THE EXISTENCE OF AN ARMED CONFLICT

It is important that the perpetrator has mens rea he had intent to do such act "On that basis one
can conclude only that some form of knowledge is required, which is below the standard of Art.
30 ICC Statute. The words awareness of the factual circumstances that is implicit in the terms
"took place in the context of and was associated with" seem to suggest that the perpetrator
needs only to know the nexus between his/or acts and an armed conflict.19 in instance case
mr.strong was not aware of the circumstances they were doing their job the karaxis came in
between them on the site spontanously and blocked demolition.

2.2. THE ELEMENTS OF CRIME AGAINST HUMANITYT UNDER ARTICLE 7(1)(h)

ARE NOT FULFILLED
It is submitted that there are no any substantial grounds to believe that mr strong has committed
crime mentioned under article 7(1)(h) as there was no any Systematic and widespread attack
directed towards civilian population.

2.2.1. There was no ‘Attack’ Directed Against ‘Civilian Population’

An attack against a civilian population means the perpetration of a series of acts of violence
against such population.20 There is no evidence to show that any act of violence or

18
Prosecutor v. Tadić (1997), ICC IT-94-1-T, Trial Chamber, [562].
19
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources
and Commentary (2003), p.21:
20
Prosecutor v Ruto & Sang (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the
Rome Statute), Case No. ICC-01/09-01/11-373 (23 January 2012), ¶213.

21
discriminatory treatment was carried on the civilians and in absence of the same, an „attack‟ 21
cannot be presumed. The Kirex party do not constitute civil population as civil population
excludes members of terrorist groups from being categorized as civilians.22 Since members of
Kirex party were seen with arms at construction site and were terrorizing workers and halted
construction of Modern Airport, their presence with arms takes away the civilian status of the
Kirex Party.

2.2.2. The Alleged Attack was not Systematic and Widespread

23
Establishment of „policy‟ is essential to prove that the attack was systematic. To satisfy the
24
„policy‟ requirement, „intention‟ to commit an attack is relevant. A mere motive to commit an
attack is insufficient.25 In the present case the intention was not to attack, as the municipal
security forces fired upon the protesters because they were armed, trespassing on government
property and attempting to halt a government construction project by violent means, not because
of their political affiliation. The mere motive was to clear Government construction side.
Therefore, it was not a systematic attack.

The term „widespread‟ includes an „attack‟ carried out over a large geographical area, directed
against a large number of civilians.26 The alleged attack was only restricted to the Government
airport construction site, only the armed protesters who initially took active part in hostilities
were attacked. Hence, the situation does not meet the „large scale‟27 criteria.

2.2.3. The Incidents had no discriminatory motive

Previous authorities have established that discriminatory motives such as religious and ethnic
persecution,28 ethnic purification,29 and the imposition of religious edicts are of sufficient
gravity.30 Presently, the attacks were unlikely to be conducted with discriminatory motives in

21
Prosecutor v Ndindiliyimana et al., Case No. ICTR-00-56-T (17 May 2011), ¶2087
22
Prosecutor V Blaskic Para 100 & 101
23
Office of the Prosecutor, Situation in Hondauras, ICC, Article 5 Report (October 2015), ¶102.
24
Prosecutor v Ruto & Sang (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the
Rome Statute), Case No. ICC-01/09-01/11-373 (23 January 2012), ¶213.
25
ibid
26
Prosecutor v Tihomir Blaskic (Trial Judgement), Case No. IT-95-14-T, ICTY (3 March 2000), ¶206.
27
Prosecutor v Jadranko Prlić, Case No. IT-04-74-T, TC (29 May 2013), ¶41.
28
ICTY, The Prosecutor v. Tihomir Blakic, IT-95-14-T, 3 March 2000, para. 785.
29
ICTY, Prosecutor v. Dario Kordic & Mario Cerkez, IT-95-14/2-T, 26 February 2001, para. 859.
30
ICC, Prosecutor v. Ahmad Al Faqi Al Madhi, ICC-01/12-01/15, Judgment and Sentence for the Situation in the
Republic of Mali in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, 27 September 2016, para. 81.

22
mind. As In instant case construction of buildings, roads and Airports projects in the capital city
of Newcastle are being done by Government, recently on 7 June 2021, the mayor of Newcastle,
Lionel Strong, ordered city construction workers to complete the construction of airport runways
and a terminal on municipal land. On 8 June 2021, approximately 800 armed individuals
associated with the Karaxis Party, arrived at the site and blocked the site from commencing. In
response, Mayor Strong ordered heavily armed municipal security personnel, numbering 1,000,
to forcibly clear out the Karaxis protesters from the construction site. That order primarily served
to curb the spontaneous protests.

2.2.4. The Conduct was not in connection with other crimes of Statute
The ICC Statute makes one further departure from existing international law, and one that is very
relevant to the subject of this article. Persecution under the ICC Statute must be committed in
connection with other acts or crimes within the jurisdiction of the ICC. 31 Thus, it would seem
that Article 7 of the ICC Statute might signal a reversion to the idea, adopted in the Nuremberg
Charter, that persecutory acts may only be punished if they are committed in connection with
other acts or crimes within the Court‟s jurisdiction. In the instant case, it is clearly made out that
the persecution is not in connection with any crime under icc statute and Article 8(2)(e)(iv) is
also not being satisfied. In light of the aforementioned reasons, the PTC‟s decision that there are
no substantive grounds is to be upheld.

2.3. THERE WAS NO CRIMINAL INTENT IN THE COMMISSION OR ORDERING

OF THE ALLEGED CRIME.
A conduct is classified as War Crime if it violates Principle of Proportionality, precaution,
distinction or necessity.32 The ICC statue incur individual criminal responsibility on a person if
he orders, solicits or induces the commission of such a crime which in fact occurs or is
attempted.33 To hold a person liable for commission of a crime, there must exist a nexus
between the acts of the accused and the attack, which consist of : (i) the commission of an act
which, by its nature or consequences, is objectively part of the attack; (ii)knowledge on the part

31
ICC Statute, art.7(1)(H).
32
Greig, D. W. (1985). The underlying principles of international humanitarian law. The Australian Year Book of
International Law Online, 9(1), 46-93.
33
ICC Statute Art 25.

23
 of the accused that his act is part of the attack."34 In view, Mr Strong cannot be held
individually responsible because: There was no criminal intent in the commission or ordering of
the alleged crime. Ordering entails using a position of authority "to convince another to commit
a crime.35”M.r strong gave a defensive order to because they were all armed tried to halt the
government property Criminal intent is not met because he did not explicitly order or imply
offensive measures. Futher those orders cannot be governed under IHL Paradigm but to be
govern under IHRL as these order were not in context of armed Conflict.36 Mere knowledge
that an attack may occur does not suffice to impose criminal responsibility. 37 There is
insufficient evidence to prove mr strong deliberately targeted those protestors38 or foresaw the
substantial likelihood that a criminal act would occur. Additionally, it is not clear that who fire
39
shots first This indicates the mr.strong has no intent to harm those protestors as they all
arrived on the spot showing no sign of planning mr.strong was aiming to construct the airport
and the demolition occur after the fighting.

ISSUE 3: WHETHER THE PRE-TRIAL CHAMBER ERRED IN HOLDING THAT THE

DEFENDANT WAS NOT FIT TO STAND TRIAL UNDER ARTICLE 64(2) OF THE
STATUTE AND RULE 135 OF THE COURT’S RULES OF PROCEDURE AND
EVIDENCE?

It is submitted that the Pre-Trial Chamber did not erred in holding that the Defendant was not fit
to stand trial under Article 64(2) of the Statute and Rule 135 of the Court‟s Rules of Procedure
and Evidence. As The person who is charged or aimed to be charged must be able to attend or
assisst his counsel. In the case at hand, where the weight of allegations rests upon the shoulders
of the Defendant, the question of their fitness becomes a essential aspect of ensuring the utmost
fairness and justice.

34
ICTY, Prosecutor v. Kunarac, Kovac and Vukovic, "Judgement", IT-96-23-T and IT-96-23/1-T, 22 February
2001, para. 418. See also ICTY, Proscutor v. Vasiljević, "Judgement", IT-98-32-T, 29 November 2002, para. 32;
ICTY; Prosecutor v. Kunarac, Kovac and Vukovic, "Appeals Judgement", IT-96-23-T and IT-96-23/1-A, 12 June
2001, para. 99.
35
Krstic, ICTY Trial Judgement, 2 August 2001, para. 601.
36
ICRC, Violence, and the Use of Force, pg.12.
37
Blaškić, ICTY Appeals Judgement, 29 July 2004, para. 41.
38
Facts
39
Facts

24
3.1. ACCUSED PERSON MUST POSSESS THE MENTAL CAPACITY TO
UNDERSTAND THE NATURE OF THE CHARGES BROUGHT AGAINST HIM.
40 41
The assessment required under article 64(2) of the Statute and Rule 135 of Rules of
Procedure and Evidence has been accomplished by pre-trial chamber with sue process and report
submitted by doctor is also not under question which must be considered as primary and
authentic source to consider ability of Mr. Lionel Strong to stand in trial. Legal Framework:
Article 64(2) and Rule 135.

Furthermore Article 64(2) of the Rome Statute serves as the cornerstone for evaluating an
individual's fitness to stand trial within the International Criminal Court's (ICC) jurisdiction. This
provision underscores (providing) the fundamental principle that an accused person must possess
the mental capacity to comprehend the nature of the charges brought against them and actively
participate in the legal proceedings. The article is a testament (demonstration) to the commitment
of the ICC to uphold fair trial standards, acknowledging that a defendant's mental state is
intrinsically linked to the overarching goal of justice.

Moreover, the essence of Article 64(2) lies in its recognition that a trial conducted in the absence
of the accused's full cognitive faculties risks compromising the integrity of the legal process. It
stands as a safeguard against proceeding with a trial when an accused person is not mentally
competent, preserving the principles of fairness, due process, and the right to a defense. As we
delve into the intricacies of the Defendant's fitness assessment, it is crucial to dissect Article
64(2) with a discerning eye, understanding its implications and the necessity of its stringent
application in ensuring a just legal environment.

3.2 Rule 135 of the Court’s Rules of Procedure and Evidence:

It is further submitted that Rule 135, as delinate42 (define) in the Court's Rules of Procedure and
Evidence, provides the procedural framework for the evaluation of an individual's fitness to
stand trial. Complementary to Article 64(2) of the Statute, this rule sets out the steps that the
Trial Chamber must take in scrutinizing the mental capacity of the accused.

40
ICC Statute Art 64(2).
41
Rules of Procedure and Evidence Rule 135.
42
ibid.

25
As we navigate the Defendant's fitness assessment, Rule 135 emerges as a procedural compass,
guiding the Trial Chamber in its responsibility to uphold the principles of fairness and justice in
the face of potential challenges posed by the accused's mental state. In the case of Snyder v.
43
Massachusetts the court declared that “ the presence of a defendant is a condition of due
process to the extent that fair and just hearing would be thwarted by his absence or amnesia.

3.3. THE ROLE OF PROSECUTOR-INDUCED TENSION

We draw the court's attention to the undeniable connection between stress, high blood pressure,
and strokes. Studies have consistently shown that chronic stress can contribute to hypertension.
In Mr. Strong's case, the tension induced by the legal proceedings, including the actions of the
prosecutor, acted as a catalyst, exacerbating his existing high blood pressure.

The relentless pressure and and anxiety imposed on Mr. Strong during the legal process created
an environment conducive to the manifestation of a severe stroke. We argue that the prosecutor's
actions, intentionally or unintentionally, contributed to the elevated stress levels that, when
coupled with Mr. Strong's pre-existing high blood pressure, resulted in Mr. Strong Hemorrhagic
stroke.

3.4. LEGAL STANDARD TO ESTABLISH AN ACCUSED’S FITNESS TO STAND

TRIAL
The Trial Chamber in Strugar found that the exercise of such rights would “presuppose that an
accused has a level of mental and physical capacity44” On the basis of this analysis as well as
consideration of some examples from other international and national jurisdictions and
instruments45,111 the Trial Chamber concluded that “fitness or competence to stand trial is a
matter which, although undoubtedly connected with the physical and mental condition of an
accused person, is not confined to establishing whether a given disorder is present but rather is
better approached by determining whether he is able to exercise effectively his rights in the

43
Snyder v. Massachusetts.
44
Prosecutor v. Pavle Strugar (IT-01-42-A) para 109
45
(Orić Appeal Judgement, para. 9; Hadihasanovi} and Kubura Appeal Judgement, para. 9; Halilović Appeal
Judgement, para. 8).(32 Id.; see also Ntagerura et al. Appeal Judgement, para. 136.)(Had`ihasanovi} and Kubura
Appeal Judgement, para. 10; Halilović Appeal Judgement, para. 9; Staki} Appeal Judgement, para. 10.)
(34 Had`ihasanovi} and Kubura Appeal Judgement, para. 11; Blagojević and Jokić Appeal Judgement, para. 9;
Limaj et al. Appeal Judgement, para. 12; Bagilishema Appeal Judgement, para. 11; Musema Appeal Judgement,
para. 18.)

26
proceedings against him.46112 Therefore, the Trial Chamber set out a non exhaustive list of the
capacities to be evaluated when assessing an accused‟s fitness to stand trial to plead, to
understand the nature of the charges, to understand the course of the proceedings, to understand
the details of the evidence, to instruct counsel, to understand the consequences of the
proceedings, and to testify47.113 With respect to the scope of such capacities, the Trial Chamber
noted that “what is required is a minimum standard of overall capacity below which an accused
cannot be tried without unfairness or injustice48”.

3.5. TO UNDERSTAND THE NATURE OF THE CHARGES/TO UNDERSTAND THE

COURSE OF THE PROCEEDINGS:
In instant case defence submits that the physcatrist appointed by the ICC Registar reports that
Mr. Strong is not fit to participate meaningfully in his trial. The expert further opined that it is
extremely unlikely that Mr. Strong will regain fitness, regardless of treatment or intervention,
and that there are no accommodations that could enable him to participate effectively in his trial
because of the severity of his cognitive impairment.49 one of the reason that causes Cognitive
imapirment is “stroke” Memory loss, Frequently asking the same question or repeating the same
story over and over, Not recognizing familiar people and places, Having trouble exercising
judgment, such as knowing what to do in an emergency, Changes in mood or behavior, Vision
problems50. These are the problems that a severe cognitive impairment causes although a person
if is not able to carry out or understands the task of daily routine then it is questioned how he is
able to carry out the court proceedings and charges not knowing what crime he has done it will
mark question against legal proceedings and international court justice.

Although the accused must be able to disscuss the issue with the counsel, ability to communicate
with counsel Central to this is the consideration of mental disorders. These include conditions
like schizophrenia, bipolar disorder, along with cognitive impairments that may hinder the
accused's ability to fully comprehend the proceedings and actively assist in their own defence.
46
Had`ihasanovi} and Kubura Appeal Judgement, para. 10; Limaj et al. Appeal Judgement, para. 12; Blagojević
and Jokić Appeal Judgement, para. 226; Brñanin Appeal Judgement, para. 13. See Stakić Appeal Judgement, para.
219; Čelebići Appeal Judgement, para. 458)
47
Kupre{ki} et al. Appeal Judgement, para. 30.
48
Orić Appeal Judgement, paras 10-11; Had`ihasanovi} and Kubura Appeal Judgement, para. 10; Halilović Appeal
Judgement, para. 9; Simi} Appeal Judgement, para. 10; Kvo~ka et al. Appeal Judgement, para. 18; Vasiljevi} Appeal
Judgement, para. 8.
49
Facts para 15
50
https://www.cdc.gov/aging/pdf/cognitive_impairment/cogimp_poilicy_final.pdf

27
It's worth mentioning that a diagnosis alone does not automatically equate to being unfit. The
symptoms must notably impair the accused's legal capacities.51 as per dr meley reports stroke can
include impairment in verbal recall and recognition as well as in visuospatial memory. Several
features of stroke make it an important source of information about the nature of memory
impairments in amnesia. First, there are usually no preillness neurological issues to complicate
interpretation of the effects of stroke52 in instance case as per reports of expert Dr.meley beleron
mr strong can not recall old memories so if a person doesn‟t know what he is going through or
what charges are framed against him and why then how will he able to communicate about his
right to speak.

3.6. MEDICAL OPINIONS AND EXPERT TESTIMONIES IN FAVOR OF FITNESS:

In defense of Mr. Lionel Strong's ability to stand trial, recognized medical expert Dr. Meley
Beleron affirm his mental capacity to comprehend that Mr. Lionel Strong is unable to actively
participate in legal proceedings.These expert testimonies counterbalance views, subjectivity in
mental health assessment.

3.7. Medical Reports Supporting Competency:

In defense of Mr. Lionel Strong's competency to stand trial, the defense present meticulously
prepared medical reports. These reports comprehensively detail Mr. Strong's severe cognitive
impairment abilities that there are no accommodations that could enable him to participate
effectively in his trial because of the severity of his cognitive impairment 53. and any mitigating
factors not relevant to his fitness for trial. This evidence aims to provide a nuanced
understanding of his competency, supporting the argument that he does not possesses the mental
capacity required, in accordance with Article 64(2) and Rule 135 of the Statute and Rules of
Procedure and Evidence.

3.8. Constitutional Implications: A. Right to a Fair Trial:

The defense argues that the Pre-Trial Chamber's determination of unfitness, with a thorough
examination and full consideration of expert opinions, upheld the Defendant's right to a fair trial.

51
https://www.studysmarter.co.uk/explanations/psychology/forensic-psychology/fitness-to-stand-
trial/#:~:text=The%20psychological%20criteria%20for%20determining,understanding%20of%20the%20legal%20p
rocess.
52
HBEV: 00021 Report on Amnesia Author Elizabeth Race
53
Facts para 15

28
This right, a cornerstone of international legal principles, is explicitly protected by human rights
instruments. The Appeals Chamber is of the opinion that the issue of an accused‟s fitness to
stand trial is of such importance that it may generally be regarded as “an issue that would
significantly affect the fair and expeditious conduct of the proceedings or the outcome of the
trial” under Rule 73(B) of the Rules. 54

Absent certain exceptions, such as when an accused‟s submissions in support of his inability to
stand trial are frivolous or manifestly without merit, the immediate resolution by the Appeals
Chamber of any question of fitness would appear to be essential in that any decision that an
accused is not fit to stand trial would necessarily materially advance the proceedings.
Correspondingly, the prejudice to the accused resulting from continuing the trial while he or she
is unfit to stand would amount to a miscarriage of justice.55

A person who is unable to defend his rights and assist his counsel would be not charged or
56
penalized as per principles of justice. It has been decided in the case of Brown v. State that
An insane person, or one who though not insane, is laboring under such mental infirmity as to
prevent his rationally aiding in his defense, should not be put to trial at all.

3.9. Pre-trial XV’S findings and conclusion in favour of accused not to stand fit the trial
Based on above stated considerations pre-trial chamber has denied to frame charges stated as We
are persuaded by Dr. Baleron’s Report that Lionel Strong is permanently unfit to stand trial
57
because of his stroke-induced amnesia and therefore terminate the proceedings against him.
although the courrt has terminate the proceedings against Mr. lionel strong as Pre-trial gives this
decision keeping in eye on the justice and realm of the international criminal court.

54
The Appeals Chamber (Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision
on Motion Re Fitness to Stand Trial, 10 March 2008 (confidential and ex parte).
55
Cf. R. v. Podola [1959] Cr. App. 3 W.L.R. 718: Ngatayi v. R [1980] 147 CLR 1, Kesavarajah v. R [1994], 181
CLR 230, High Court of Australia, pp. 246-248: “Malaysia, High Court of Muar, Public Prosecutor v. Misbah Bin
Saat [1997] 3 MLJ 495, p. 504: “
56
Brown v. State.
57
Facts page no 7

29
 PRAYER FOR RELIEF

On the basis of the evidence provided, the counsel for legal representative of victim respectfully
requests the Court to find that:

1. Upheld the PTC Decision and

2. Declare that:
a. That Court cannot exercise jurisdiction over the Defendant under Article 12(2).
b. That he did not ordered the commission of a crime under Article 25(3)(b), and
shall not charge for war crimes under Article 8 (2) (e) (iv) and crimes against
humanity under Article 7(1)(h).
c. That the Defendant is not fit to stand trial pursuant to Article 64(2) of the Statute
and Rule 135 of the Rules of Procedure and Evidence.

All of which is respectfully submitted.

S/d 1. ……………

Place: The Hague, Netherlands 2. ……………

(Counsels for the Defence)

30
31