Symbiosis Law School, Pune - International Criminal Trial Advocacy Competition, 2016

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
IT_05_D
THE TRIAL CHAMBER
IN THE CASE OF
PROSECUTOR V. SUSAN WANCHUK
CHARGES AGAINST THE ACCUSED:

1. GENOCIDE,
FOR THE ATTACK AGAINST
CROSSFORDIANS
UNDER
ARTICLE 6
AND
ARTICLE 25(3)(e) OF THE ROME STATUTE;

2. CRIMES AGAINST HUMANITY FOR INFLICTING SEVERE PHYSICAL OR MENTAL PAIN OR
SUFFERING UPON THE CROSSFORDIAN POPULATION UNDER ARTICLE 7(1)(f) AND ARTICLE
28(b) OF THE STATUTE;

3. THE WAR CRIME OF TORTURE OF INHUMAN TREATMENT, UNDER ARTICLE 8(2)(a)(ii)
FOR INFLICTING SEVERE PAIN UPON THE PRISONERS AND THE PERSONS PROTECTED UNDER
THE GENEVA CONVENTION OF 1949 AND ARTICLE 25(3)(b);
4. THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF WARFARE

AGAINST THE CROSSFORDIANS BY DEPRIVING THEM OF OBJECTS INDISPENSABLE TO THEIR
SURVIVAL, INCLUDING WILLFULLY IMPENDING RELIEF SUPPLIES AS PROVIDED FOR UNDER
THE GENEVA CONVENTIONS UNDER ARTICLE 8(2)(b)(xxv) AND ARTICLE 25(3)(d) OF THE
ROME STATUTE.
WORD COUNT: 6700
WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

Written Submissions on behalf of the Defence
TABLE OF CONTENTS
INDEX OF AUTHORITIES .............................................................................................................iii

STATEMENT OF FACTS .............................................................................................................. vii
ISSUES PRESENTED .................................................................................................................... xi
SUMMARY OF ARGUMENTS ...................................................................................................... xii
ARGUMENTS IN DETAIL .............................................................................................................. 1
ISSUE I : WHETHER THE ICC CAN EXERCISE ITS JURISDICTION OVER THE ACCUSED IN ORDER
TO SERVE THE PURPOSE FOR WHICH THE COURT WAS FOUNDED?
.......................................... 1
[1.1]. The selection process is not envisioned within the Rome Statute ................................... 1
[1.2]. The Prosecutor has not acted independently and was influenced by the States involved
.................................................................................................................................................... 2
ISSUE II : WHETHER THE DEFENDANT HAS COMMITTED THE CRIME OF GENOCIDE FOR THE
ATTACK AGAINST CROSSFORDIANS AND THE CRIME OF INCITEMENT OF OTHERS TO COMMIT
GENOCIDE? ................................................................................................................................ 4
[2.1]. The defendant has not committed the crime of genocide ................................................ 4
[2.2]. The defendant has not committed the crime of incitement of others to commit genocide
.................................................................................................................................................... 7
ISSUE III : WHETHER
THE
WAR
CRIME OF TORTURE OR INHUMAN TREATMENT, UNDER
ARTICLE 8(2)(a)(ii) FOR INFLICTING PHYSICAL PAIN UPON THE PRISONERS AND THE PERSONS
PROTECTED UNDER THE GENEVA CONVENTION OF
1949
AND ARTICLE
25(3) (b)
OF THE
STATUTE HAS OCCURRED? ...................................................................................................... 10
[3.1]. Element 2 of war crime of torture is not satisfied ......................................................... 10

[3.2]. Element 5 of war crime of torture and element 4 of inhuman treatment are not satisfied
.................................................................................................................................................. 11
[3.3]. Given the circumstances, 50 working hours does not constitute of inhuman treatment
.................................................................................................................................................. 12
(i)
Written Submissions on behalf of the Defendant
[3.4]. Susan Wanchuk bears no liability for war crime of torture and inhuman treatment on the
basis of orders given by her ..................................................................................................... 12
ISSUE IV : WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD

OF WARFARE BY DEPRIVATION OF OBJECTS INDISPENSABLE TO THEIR SURVIVAL UNDER
ARTICLE 8 (2)(b)
(xxv) AND ARTICLE 25(3)(d) OF THE ROME STATUE HAS OCCURRED? ..... 13
[4.1]. Element 1 of war crime of intentionally using starvation of civilians as a method of

warfare is not satisfied ............................................................................................................ 13
[4.2]. Element 2 of war crime of intentionally using starvation of civilians as a method of
warfare is not satisfied ............................................................................................................ 14
[4.2]. Element 3 of war crime of intentionally using starvation as a method of warfare is not
satisfied
[4.3]. Alternatively, in the event that the court finds that a crime has been committed, Susan
Wanchuk still does not bear criminal responsibility under Article 25(3)(d) .......................... 15
ISSUE V
: WHETHER SUSAN WANCHUK HAS COMMITTED THE CRIME AGAINST HUMANITY OF
TORTURE FOR INFLICTING PHYSICAL OR MENTAL PAIN OR SUFFERING UPON THE

CROSSFORDIANS AND WAS CRIMINALLY RESPONSIBLE FOR CRIMES COMMITTED BY HER
SUBORDINATES?
...................................................................................................................... 17
[5.1]. Element 5 is not satisfied as Susan Wanchuk did not intend it to be a widespread attack
against a civilian population .................................................................................................... 18
[5.2]. Susan Wanchuk does not incur any liability under Article 28(b) .................................. 18
[5.3]. Susan Wanchuk did not know that her subordinates were about to commit crimes ...... 18
PRAYER..................................................................................................................................... 20
(ii)
INDEX OF AUTHORITIES
Judicial Precedents
Case name
Page No.
Masses Publishing Co. v. Patten 244 F. 535, 542 (S.D.N.Y.1917)
Prosecutor
17
v. Bemba
ICC
PT.
Ch.
II, ICC-01/05-01/08-
424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome

Statute on the Charges of the Prosecutor Against Jean-Pierre
Bemba Gombo, (Jun. 15, 2009)
Prosecutor v. Blagojevic and Jokic Case No. IT-02-60, Judgment,
37
(Jan. 17, 2005)

Prosecutor
v.
Blaskic
Judgment
(Jul.
29,
2004),
www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf.
Prosecutor v. Brdanin Case No. IT-99-36-T (1 September 2004)
Prosecutor v. Dario Kordic and Mario Cerkez Case No. IT-95-14/2-
7, 11, 12
10
T, (Feb 26, 2001)

Prosecutor v. Galic Case No. IT-98-29-T, Judgement and Opinion,
12
(5 December 2003)
Prosecutor v. Ignace Bagilishema Case No. ICTR-95-1A-T,
Judgment, (Jun. 7, 2001)

Prosecutor v. Goran Jelisic Case No. IT-95-10-T, (Dec. 14, 1999),
5, 6
www.icty.org/x/cases/jelisic/tjug/en/jel-tj991214e.pdf
Prosecutor v. Jean Kambanda Case No. ICTR 97-23-S Judgment
and Sentence, (Sep. 4, 1998)

Prosecutor v. Jean-Paul Akayesu Case No. ICTR-96-4, (Sep. 8, 1998)
Prosecutor v. Kayishema and Ruzindana Case No. ICTR-95 1 T,
(Trial Chamber), (May 21, 1999)

Prosecutor v. Krnojelac Case No. T-97-25-A, Appeals Chamber,
(Sep. 17, 2003)

Prosecutor v. Krstic Case No. IT-98-33-T, Trial Chamber, (Aug. 2,
2001)
(iii)
Case Name
Page No.
Prosecutor v. Mbaushimana Case No. ICC - 01/ 04 - 01/10 40,
Confirmation of Charges, (Dec. 16, 2011)

Prosecutor v. Musema Case No. ICTR-96-13-A, Judgment and
Sentencing, (Jan. 27, 2000)

Prosecutor v. Nahimana, Barayagwiza and Ngeze Case No. ICTR-
99-52-A, Judgment, (Dec. 3, 2003)

Prosecutor v. Rutaganda Case No. ICTR-96-3-A, (May 26, 2003)
Prosecutor v. Goran Jelisic Case No. IT-95-10-T, (Dec. 14, 1999),
5, 6, 8
5, 6
www.icty.org/x/cases/jelisic/tjug/en/jel-tj991214e.pdf
Prosecutor v. Semanza Case No. ICTR-97-20-T, Trial Chamber,
5, 6
(May 15, 2003)

Prosecutor v. Stakic Case No. IT-97-24-A, Appeals Chamber, (Jul.
31, 2003)
Prosecutor v. Thomas Lubanga Dyilo Case No. ICC-01/04-01/06-8,
Decision on the Prosecutors Application for a Warrant of Arrest,

(Feb.
10,
2006),
https://www.icc-
cpi.int/iccdocs/doc/doc236260.PDF
The Prosecutor v. Anto Furundzija Case No. IT-95-17/1-T, (Jun. 11,
10
1998)
The Prosecutor v. Germain Katanga Case No. ICC-01/04-01/07,
Decision
on
confirmation
of
charges,
(Sep.
26,
11
2008),
https://www.icc-cpi.int/iccdocs/doc/doc571253.pdf.
Situation in the Republic of Kenya ICC PT. Ch. II, ICC PT. Ch. II,
18
ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute

on the Authorization of an Investigation into the Situation in the
Republic of Kenya, (31 March 2010).
Essays, Articles and Journals
1. A.F. Gopalani, The International Standard of direct and public incitement to commit
Genocide: an obstacle to U.S. ratification of the International Criminal Court Statute?, 32
Cal. Western Intl L. J. 87 (2001) .................................................................................... 8
(iv)
2. H. Hannum, International Law and Cambodian Genocide: The Sounds of Silence, 11
Human Rights Quarterly 82 (1989) ................................................................................. 6
3. Jordan Paust, Congress and Genocide: They're not going to get away with it, 11 Michigan
J. of Intl L. 95 (1989) ....................................................................................................... 5
4. Margaret deGuzman, Choosing to Prosecute: Expressive Selection at the International
Criminal Court, 33 Mich.J. Int'lL. 265 (2012) .................................................................. 2
5. Susana SaCuoto, The Gravity Threshold of the International Criminal Court, 23 Amer.
Univ. Intl L. R. 811 (2007) ............................................................................................... 3
Books
1. Antonio Casesse, The Rome Statute of the ICC: A Commentary (OUP 2002) ................... 1
2. C. Swinarski and B. Zimmermann, Commentary on the Additional Protocol of 8 June 1977
to the Geneva Conventions of 12 August 1949 (ICRC Martinus Nijhoff Geneva 1987) .. 14
3. D. Frank, The International Criminal Court, Elements of Crimes and Rules of Procedure
and Evidence (2001) ........................................................................................................... 7
4. Gerhard Werle, Principle of International Criminal Law (2d ed. Asser 2005) .................. 4
5. Kai Ambos, The Rome Statute of the International Criminal Court A Commentary
(Oxford University Press 2002) ........................................................................................ 18
6. M. Cherif Bassiouni, International Criminal Law: Sources, Subjects and Contents (3rd ed.
Martinus Nijhoff Publishers) .......................................................................................... 1, 6
7. Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court (1st
ed. 1999) ........................................................................................................................... 13
8. Wibke Kristin Timmermann, Incitement in International Criminal Law (Routledge 2014)
9. William A. Schabas, An Introduction to the International Criminal Court (4th ed.
Cambridge University Press) .............................................................................................. 8
10. Yoram Dinstein and A.W. Sijthoff, The Defence of Obedience to Superior Orders in
International Law (Leiden 1965) ..................................................................................... 16
International Instruments
1. Commentary on articles adopted by the Committee, UN Doc. E/AC.25/W.1/Add.1 (Apr.

27, 1948)
(v)
2. Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277
(1948)
3. Hague Regulations 1899
4. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3
(1977)
5. Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6
May-26 July 1996, A/51/10 (1996)
6. Report of the Secretary-General on the establishment of a Special Court for Sierra Leone,
S/2000/915 (2000)
7. Rome Statute, 2187 U.N.T.S. 90 (1998)
8. Rome Statute, Elements of Crimes, ICC-ASP/1/3 (2002)
9. The Hours of Work (Industry) Convention, 1919
Miscellaneous
1. Eileen Skinnider and Frances Gordon, The Right To Silence International Norms And
Domestic
Realities,
ICCLR,
http://icclr.law.ubc.ca/sites/icclr.law.ubc.ca/files/publications/pdfs/Paper1_0.PDF ........... 1
2. Policy Paper on Preliminary Examinations, ICC, (Mar. 9, 2006), https://www.icccpi.int/NR/rdonlyres/E278F5A2-A4F9-43D7-83D26A2C9CF5D7D7/282515/OTP_Draftpolicypaperonpreliminaryexaminations04101.pdf .. 2
3. Toby Mendel, Study on International Standards Relating to Incitement to Genocide or
Racial
Hatred,
U.N.,
(2006),
http://www.concernedhistorians.org/content_files/file/TO/239.pdf .................................... 8
(vi)
STATEMENT OF FACTS
[I]. GEORAPHICAL CONDITIONS AND SITUATION OF COUNTRIES
The Bay of Gandar was a crescent-shaped bay which marked the southern-end of the continent
of Gandar. The western side formed the country of Crossford and the eastern side formed the
country of Hambridge. 20 nautical miles off the southern tip of the western extreme of the Bay
of Gandar was Western Slade, and 20 nautical miles off the southern tip of its eastern extreme
was Eastern Slade. Western Slade was prominently Crossfordian whereas Eastern Slade was
prominently Hambridgian in ethnicity. The ongoing movement of the tectonic plates led to the
emergence of a new island equidistant between Western and Eastern Slade, which international
cartographers called Central Slade. It was unpopulated and uninhabitable because the nature of
the tide surges. A geological survey released in March 2011 had revealed that the mountain
that was growing under the sea to form Central Slade was likely to be the source of a significant
supply of rare earth metals, of great value in the modern economy, because of which by May
2011 small naval fleets of both Western Slade and Eastern Slade were stationed around the
Central Slade for a claim.
[II]. EASTERN SLADE AND WESTERN SLADE DECLARED WAR ON EACH

OTHER
Western Slade and Eastern Slade declared war on each other. Crossford and Hambridge did
not formally declare war, and indeed urged a diplomatic solution; but they reflagged naval
ships from their own navies as belonging to Western Slade and Eastern Slade. Both navies
targeted ships in the Bay that were heading to the other island or to the mainland on the basis
that they might contain military equipment. The action taken was not to sink ships, but to board
them, by force if necessary, and commandeer them. On various occasions, crew were forced
into life rafts and abandoned; on other occasions, the crew were taken with the ship into port
and placed into prisoner of war camps. The crew of ships was placed into life-rafts; on the first
three occasions that it was done, first by the Western Slade navy and then twice by the Eastern
Slade navy, the life-rafts were unable to deal with the adverse weather conditions and most
passengers drowned.
(vii)
[III]. CRIMES COMMITTED BY CONRAD DRAHY AND CAPTAIN TREVOR
The in charge of the Western Slade Navy, Conrad Drahy, directed that the crew of every second
ship commandeered should be cast adrift in life rafts, the aim of the policy being to cause
merchant ships to avoid journeys to Eastern Slade or Hambridge. By the end of the conflict,
which lasted for some three years, 80 crews had been treated in this way; only one lifeboat
survived. The total loss of life was 1476 people. Further, some 1304 people were held in
prisoner of war camps in Western Slade, they were treated in accordance with humanitarian
standards. One natural gas carrier ship was shadowed by a Western Slade naval vessel, but not
boarded as an Eastern Slade naval vessel was reported to be in the area. Captain Trevor Trenk
in charge of a Special Forces Unit approached the tanker and placed onto its hull a sophisticated
bomb which resulted explosion and fire which caused 57 deaths and significant property
damage. It was estimated that it would take 5 years for sea life to become edible again.
[IV]. EASTERN SLADE TOOK POWS INTO THEIR PRIVATE RUN PRISONS
WHICH WAS RUN BY ASTCO OFFICIALS AND SUSAN WANCHUK
Eastern Slade took the crew to the shores and put them as prisoners of war. Its prisoner of war
camp was run by a private prison company Astco owned by Chief Minister of Hambridge,
Andre Bouillon, which had been contracted first by the government of Hambridge and then by
the government of Eastern Slade to operate all prison facilities. However, in practice the
operations of the Astco prison facilities were not only overseen by the Astco officials but also
by the Eastern Slade Minister of Defence, Susan Wanchuk, who had been Bouillons protg.
Bouillons view was based on a view that Crossfordians were a lesser race altogether whose
role in life was limited to providing manual labour.
[V]. ATROCITIES COMMITTED AGAINST THE PRISONERS OF WAR IN

EASTERN SLADE
285,000 captured people had been placed in Astco facilities, the vast majority being of
Crossfordian nationality or ethnicity. They were all subject to a regime of forced labour, the
Astco policy being that prison had to be cost-neutral, such that inmates had to provide labour
services that equated to the cost of their imprisonment. This cost included the capital costs of
the facilities and an agreed profit margin for Astco. The net effect of this was that each prisoner
(viii)
had to work for 62 hours a week on a range of employment activities. Wanchuk personally
reviewed all details of the disciplinary regime at the prison. For every hour not worked, a
prisoner lost one meal; and for every five hours lost, each prisoner was subject to corporal
punishment, involving one stroke of the cane or more depending on the situation. She also
introduced a new rule whereby prisoners were to impose corporal punishment on each other,
with Astco guards having the power to cane any prisoner who sought to use less than proper
force when caning another prisoner. Lethal force could be used against anyone who sought to
resist. By the end of the war, a total of 187000 prisoners had died; some 40,000 died as a result
of being shot by guards when they sought to resist disciplinary action, and the rest simply
succumbed to the consequences of the beatings, malnutrition and forced work.
[VI]. PEACE TREATY AND INITIATION OF INVESTIGATION AGAINST

PERPETRATORS
The peace treaty that brought an end to the war was called- the Treaty of Lamos. As a part of
the peace treaty, which Crossford and Hambridge also ratified, it was agreed that each side
should select two people whose involvement would be referred to the International Criminal
Court. At the end of its deliberations, the four people selected by the Standing Committee to
stand trial in the International Criminal Court were- Conrad Drahy, Trevor Trenk, Andre
Bouillon and Susan Wanchuk. The Pre-Trial Chamber of the International Criminal Court, on
26th February, 2013, accepted that there were proper grounds for trial against each defendant
on the charges as proposed and thereby authorized the ICC Prosecutor to begin investigation
into the situation. In advance of this determination, Drahy, Trenk and Bouillon went
underground and had not yet been located. But Wanchuk travelled to Hague in June 2015, and
surrendered herself for trial. In doing so, she expressly preserved her right to raise any
objections to the trial based on the process whereby she was selected for trial; in the alternative
her legal representatives also argued before the Pre-Trial Chamber that her Trial be expedited.
Through a ruling delivered on 05th August, 2015 the Pre-Trial Chamber decided that her Trial
must begin. However, the same Chamber also made an observation stating that absence of other
accused could be detrimental to the Prosecutors case.
(ix)
[VII]. CHARGES CONFIRMED AGAINST THE DEFENDANT
In a subsequent hearing conducted on 21st October, 2015 the final charges laid against
Wanchuk upon which the Trial shall initiate are:
a. Genocide, for the attack against Crossfordians under Article 6 and Article 25 (3) (e)
of the Rome Statute;
b. Crimes against humanity for inflicting severe physical or mental pain or suffering
upon the Crossfordian population under Article 7(1) (f) and Article 28(b) of the Statute;
c. The War Crime of torture or inhuman treatment, under Article 8(2)(a)(ii) for
inflicting physical pain upon the prisoners and the persons protected under the Geneva
Convention of 1949 and Article 25(3) (b) of the Statute;
d. The War Crime of intentionally using starvation as a method of warfare against the
Crossfordians by depriving them of objects indispensable to their survival, including
wilfully impeding relief supplies as provided for under the Geneva Conventions under
Article 8 2(b) (xxv) and Article 25(3) (d) of the Rome Statute.
[VIII]. VICTIMS REPRESENTATION IN RELATION TO KARL GRAHAM
Astco Survivors Movement (ASM) represented those who were imprisoned in the prison
facilities and survived and the families of those imprisoned who had died. The ASM was led
by Karl Graham. His ship was captured and he had spent some 20 months in the Astco prison.
He had suffered a range of indignities there, and his weight had dropped from 75 kg to under
50 kg by the time the war ended. He had operated as the de facto lawyer for those detained
there, and had regularly sought to raise complaints with staff and with Wanchuk about the
events at the prison. Karl Graham along with 50 other survivors seeks to be a victim seeking
reparations. However, for the purpose of the case, they have agreed to be represented by the
same Legal Representative. The Trial Chamber has indicated that it will hear arguments on
whether Karl Graham should be a victim party, as well as on any other matter the parties wish
to raise.
(x)
ISSUES PRESENTED
[A].
Whether the ICC can exercise its jurisdiction over the accused in order to serve the
purpose for which the Court was founded and whether the jurisdiction was properly triggered
in the case at hand?
[B].
Whether the defendant has committed the crime of genocide for the attack against
Crossfordians under Article 6 and the crime of incitement of others to commit genocide under
Article 25(3)(e)?
[C].
Whether the defendant has committed the crimes against humanity for inflicting severe
physical or mental pain or suffering upon the Crossfordian population under Article 7(1) (f)
and Article 28(b) of the Statute?
[D].
Whether the defendant has committed the war crime of torture or inhuman treatment,
under Article 8(2)(a)(ii) for inflicting physical pain upon the prisoners and the persons
protected under the Geneva Convention of 1949 and Article 25(3) (b) of the Statute?
[E].
Whether the defendant has committed the war crime of intentionally using starvation
as a method of warfare against the Crossfordians by depriving them of objects indispensable

to their survival, including wilfully impeding relief supplies as provided for under the Geneva
Conventions under Article 8 2(b) (xxv) and Article 25(3) (d) of the Rome Statute?
(xi)
SUMMARY OF ARGUMENTS
[ISSUE: I] WHETHER THE ICC CAN EXERCISE ITS JURISDICTION OVER THE ACCUSED IN
ORDER TO SERVE THE PURPOSE FOR WHICH THE COURT WAS FOUNDED?
The Rome Statute does not envision situations wherein individuals are chosen by independent
organizations to stand trial before the ICC. Rather, Article 14 clearly delineates and
unequivocally mandates that a State Party may only refer a situation to the Prosecutor when
triggering the Courts jurisdiction. The Prosecutor has not acted independently and has been
conspicuously influenced by the selection process of the Standing Committee, leading to the
investigations to be carried out in a prejudicial manner against the defendant.
The case against the defendant is inadmissible as the Gravity Threshold in relation to the
defendant has not been satisfied. The Pre Trial Chamber I, has expressly held that the threshold
must be met not only in every situation, but also in every case arising from the investigation of
a situation. The Chamber also imposed a strict standard that the perpetrator of the relevant
conduct (rendering it especially grave) must be among the most senior leaders suspected of
being most responsible for the crimes within the jurisdiction of the court.
[ISSUE: II] WHETHER THE DEFENDANT HAS COMMITTED THE CRIME OF GENOCIDE FOR
THE ATTACK AGAINST CROSSFORDIANS AND THE CRIME OF INCITEMENT OF OTHERS TO
COMMIT GENOCIDE?
The crime of Genocide aims at the physical or biological destruction of the targeted group,
with such intent directed at national, ethnical, racial or religious groups i.e. the destruction of
the group in whole or in part must be the perpetrators primary intent. The very definition of
this crime requires a particular state of mind or a specific intent with respect to the overall
consequences of the prohibited act. Genocide therefore invites analysis under two headings:
the prohibited underlying acts and the specific genocidal intent or dolus specialis. In the present
case the prison policies adopted were not specifically directed towards those of Crossfordian
nationality or ethnicity but towards all prison inmates.
The motive, for which a crime is committed, as opposed to the intention with which it is
committed, is ordinarily irrelevant to guilt in criminal law. Criminal intent (mens rea) must not
be confused with motive and that, in respect of genocide. Therefore, the defendants motive
(xii)
for the adoption of such policies was her hatred against Crossford and Western Slade, however
the same is rendered irrelevant for the Courts determination as the dolus specialis was absent
in the present case as neither were all inmates targeted due to their membership to a particular
group nor were all inmates characterized by the defendant to fit any group.
The speech made did not target any members based on group membership, let alone any groups
per se, rather the speech merely had the effect of pumping the soldiers up, hence repelling
enemy armed forces in the time of war.
Incitement to commit an offence, under Article 25(3)(e), involves instigating another, directly
and publicly, to commit an offence. Incitement under Article 25(3)(e) must include the direct
and public elements, required for incitement, particularly, incitement to commit genocide.
In the present case, the speech must be understood in the context with which the same was
communicated. Eastern Slade was at was war with Western Slade and the effect of the speech
was merely to pump up and encourage the armed forces to quell any armed threat from
Western Slade. The defendants intent was neither to incite, neither did she herself possess the
dolus specialis to commit genocide. The intent with which the speech was communicated with
was to merely inspire the soldiers and to demoralize their enemies.
[ISSUE: III] WHETHER THE DEFENDANT HAS COMMITTED WAR CRIME OF TORTURE OR
INHUMAN TREATMENT, UNDER ARTICLE 8(2)(a)(II) FOR INFLICTING PHYSICAL PAIN UPON
THE PRISONERS AND THE PERSONS PROTECTED UNDER THE GENEVA CONVENTION OF 1949
AND ARTICLE 25(3) (b) OF THE STATUTE?
War crime of torture necessitates an intention to cause great suffering or serious injury to body
or mental health for the purpose of infliction of pain or suffering for obtaining information or
a confession, punishment, intimidation or coercion or for any reason based on discrimination
of any kind. In reference to Annexure 1 it can be deduced that the purpose of infliction of pain
through corporal punishment was just to maintain the discipline of the prison.
All the alleged war crimes were committed in the prisons which are run by private prison
company Astco. As it was a private company which had a motive of earning profit from the
facilities, this was the reason they were subject to labour as they had to provide services that
equated to the cost of imprisonment which included the capital cost of the facilities and a profit
margin for Astco.
(xiii)
In the present case Susan Wanchuk was administering five prisons and all the direction related
to working hours and other disciplinary action was not only limited to the prisoners of
Crossford or Western Slade nationality but to all the prisoners. So it cannot be said that all the
directions which allegedly resulted into alleged war crime were closely related with
international armed conflict. Hence it is evident enough that there was a nexus between all the
direction given and making profit not of alleged war crime and international armed conflict.
The person ordering must have the required mens rea for the crime with which he is charged
and he must also have been aware of the substantial likelihood that the crime committed would
be the consequence of the execution or implementation of the order.
All the orders which emanated from the office of the defendant reasonable and was not
manifestly illegal as all the orders and directions were regarding maintaining discipline in the
prisons and earning profits within reasonable limits. The defendant had not required casual
mens rea for the crime with which she is charged.
The intention of the defendant was just to maintain discipline in the prisons, the discipline of
prisons became more important as Eastern Slade was at war during that period and in war time
any internal disturbance into the prisons would have disturbed the atmosphere of Eastern Slade,
this becomes a priority as the prisoners in prisons are not just the civilian of the Eastern Slade
but also prisoners of war.
[ISSUE: IV] WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS

A METHOD OF WARFARE BY DEPRIVING THEM OF OBJECT INDISPENSABLE TO THE
SURVIVAL UNDER ARTICLE 8 (2)(b) (XXV) AND ARTICLE 25(3)(d) OF THE ROME
STATUE HAS OCCURRED?
The war crime of starvation required a mental element to be established. In the present case,
the defendant did not deprive prisoners to any material indispensable to their survival, as she
gave proper reasonable opportunity to earn all the materials which are vital to survival. During
that time Eastern Slade and Western Slade were at war which continues for 2 years, because of
which there rises a need for prisoners in the prisons to be used as assets in furthering the
sustenance of the country. The prisoners were a liability to the country, which were converted
into asset as they were given the opportunity to earn their survival materials.
The war crime of intentionally using starvation of civilians as a method of warfare necessitates
a mental element to use starvation as a method of warfare. She did not intend to starve prisoners
to any of the material which are indispensable to their survival. No orders were emanated from
(xiv)
her office which suggests that she wanted to keep the prisoner in the scarcity of the central
survival materials. This was not related to or was not in context as a method of warfare as the
prisons were run by a private company Astco, which also had to run the prisons on cost
neutral basis and as being a private company they had a motive to make a margin of profit out
of the prisons.
The defendant does not bear the criminal responsibility of war crime of starvation as criminal
responsibility under Article 25(3)(d) requires intention to commit the specific crime with the
aim of furthering the criminal activity or criminal purpose of the group whereas the defendant
did not have any intention towards this. As discussed above she had intention of maintaining
discipline in the prisons while making some profit, as the prisons were run by a private
company Astco.
The defendant i.e. Susan Wanchuk bears no criminal responsibility of alleged war crimes as
she was following superior orders. Under Article 33 of the Rome Statute, superior orders are a
defence when three conditions are met: the accused must be under a legal obligation to obey
orders of a government or superior; the accused must not know that the order was unlawful;
and the order must not be manifestly unlawful. Susan Wanchuk was under a legal obligation
to obey orders of her superior Andre Bouillon. Susan Wanchuk did not know that the order
was unlawful, it is humbly submitted that the defendant had no criminal responsibility of war
crime as she was following superior orders of Andre Bouillon.
[ISSUE: V] WHETHER SUSAN WANCHUK HAS COMMITTED THE CRIME AGAINST HUMANITY
OF TORTURE FOR INFLICTING SEVERE PHYSICAL OR MENTAL PAIN OR SUFFERING UPON THE
CROSSFORDIAN POPULATION AND WAS CRIMINALLY RESPONSIBLE FOR THE ACTS OF HER
SUBORDINATES?
The underlying premise of this issue is the commission of the crime against humanity of torture
upon the Crossfordian Population for which the defendant has been accused of. It would be of
substance to note that if it is established that Crime against Humanity of Torture did not occur
in the first place, that would remove the liability of Susan Wanchuk even of the crimes
committed by her subordinates.Crime against Humanity of Torture is referred to in Article 7
of the Rome Statute, where one of the prerequisites of the said act is that there should be a
widespread and systematic attack against a civilian population, a very requirement that was
missing in the case at hand as the attack that was a wartime measure adopted by Eastern Slade
where the civilian population ended up being an incidental victims.
(xv)
Arguments in Detail
ISSUE I : WHETHER THE ICC CAN EXERCISE ITS JURISDICTION OVER THE ACCUSED IN ORDER TO
SERVE THE PURPOSE FOR WHICH THE COURT WAS FOUNDED AND WHETHER THE JURISDICTION
WAS PROPERLY TRIGGERED?
1. It is submitted before this Honble Court that the defendant had expressly reserved her right
to raise any objections to the trial based on the process whereby she was selected for the trial.1
The ICC does not envision such a process of selection by which the defendant was chosen to
stand trial before the ICC and the same serves to be prejudicial against her. [1.1] Additionally,
the Prosecutor is required to act in an independent manner and based on the Principle of
Independence is required not to be influenced by any external source, the same of which has
not occurred in the present case. [1.2] Lastly, the gravity threshold has not been satisfied as the
defendant is neither a senior leader nor among those who are most responsible. [1.3]
[1.1] THE SELECTION PROCESS IS NOT ENVISIONED WITHIN THE ROME

STATUTE
2. The Rome Statute does not envision situations wherein individuals are chosen by
independent organizations to stand trial before the ICC. Rather, Article 14 clearly delineates
and unequivocally mandates that a State Party may only refer a situation to the Prosecutor
when triggering the Courts jurisdiction.2 A situation is the overall factual context in which
it is believed that a crime within the jurisdiction of the court has been committed and hence the
ICCs jurisdiction cannot be triggered against a specific person. The term situation cannot
be interpreted in a restrictive manner that singles out a given party3 The effect is that only
situations can be referred rather than cases and hence complaints against specific
individuals is explicitly barred.4 Only relevant circumstances accompanied with supporting
documentation must be provided.5 Therefore, the process of selection should not bear any
consideration before the Court as individuals, including the present defendant were chosen to
Moot Proposition 14.

William A. Schabas, An Introduction to the International Criminal Court 162 (4th ed. Cambridge University
Press).
3
Id.
4
Antonio Casesse, The Rome Statute of the ICC: A Commentary 623 (OUP 2002).
5
M. Cherif Bassiouni, International Criminal Law: Sources, Subjects and Contents 680 (3d ed. Martinus Nijhoff
Publishers).
2
(1)
stand trial whereas the law provides for a mere referral of situation. To conclude, the Courts
jurisdiction has been improperly triggered and continuing the trial would be grossly prejudicial
for the defendant.
[1.2] THE PROSECUTOR HAS NOT ACTED INDEPENDENTLY AND WAS

INFLUENCED BY THE STATES INVOLVED
3. It is brought to the Courts notice that the Prosecutor has not acted independently and has
been conspicuously influenced by the selection process of the Standing Committee, leading to
the investigations to be carried out in a prejudicial manner against the defendant.
[1.2.1]. That the Prosecutor has not acted independently and was influenced by the States
involved
4. The cornerstone upon which the ICC is based upon is that the international prosecutors
should act independently.6 Article 42 of the Statue provides that the OTP shall act
independently of instructions from any external source. This means that the OTPs decisions
shall not be altered by the presumed or known wishes of any party or by the cooperation seeking
process.7 The Prosecutors investigation has undoubtedly been influenced by those states which
have ratified the Peace Treaty and directed against those selected, as only those individuals
(four in no.) were selected to stand trial before the ICC by the Standing Committee8 are being
prosecuted while no other individual has been hauled up before this Honble Court by the
Prosecutor.
[1.2.2]. That the Prosecution is burdened with a higher Standard of Proof

5. Under the standard of proof, the onus is on the Prosecution to provide sufficient evidence
to establish substantial grounds to believe that the person committed the crime charged9. In
addition to these standards, the charges cannot amount to mere theory or suspicion10 but must
be tangible, factual and concrete. The defendant i.e. Susan Wanchuk shall be presumed
Margaret deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33
Mich.J. Int'lL. 265 (2012).
7
Policy Paper on Preliminary Examinations, ICC, (Mar. 9, 2006), https://www.icccpi.int/NR/rdonlyres/E278F5A2-A4F9-43D7-83D26A2C9CF5D7D7/282515/OTP_Draftpolicypaperonpreliminaryexaminations04101.pdf.
8
Eileen Skinnider and Frances Gordon, The Right To Silence International Norms And Domestic Realities,
ICCLR, http://icclr.law.ubc.ca/sites/icclr.law.ubc.ca/files/publications/pdfs/Paper1_0.PDF.
9
Prosecutor v. Mbaushimana, Case No. ICC - 01/ 04 - 01/10 40, Confirmation of Charges, (Dec. 16, 2011).
10
Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-8, Decision on the Prosecutors Application
for a Warrant of Arrest, (Feb. 10, 2006), https://www.icc-cpi.int/iccdocs/doc/doc236260.PDF.
(2)
innocent until proved guilty before the Court in accordance with the applicable law.11 The
Defence contends that these standards have not been met for any of the charges presented
before the Court.
[1.2.3]. The Gravity Threshold in relation to the defendant has not been satisfied
6. Questions of jurisdiction and admissibility, mentioned under Article 19, may be raised
before the Trial Chamber in exceptional circumstances wherein the Court may grant leave for
a challenge to be brought at a time later than the commencement of the trial12, as has occurred
in the present case.13
7. Presently, it is brought to the Courts attention that the case against the defendant is
inadmissible as the Gravity Threshold14 in relation to the defendant has not been satisfied. The
Pre Trial Chamber I, has expressly held that the threshold must be met not only in every
situation, but also in every case arising from the investigation of a situation.15 The Chamber
also imposed a strict standard that the perpetrator of the relevant conduct (rendering it
especially grave) must be among the most senior leaders suspected of being most responsible
for the crimes within the jurisdiction of the court16 i.e. this additional gravity threshold imposes
a limitation upon the Court ensuring that the Court initiates cases against those
abovementioned.17 The concept of gravity should not be exclusively attached to the act that
constituted the crime but also to the degree of participation in its commission.18 The same fall
in line with the ICCs power to exercise its jurisdiction over persons for the most serious crimes
of international concern19 and is understood as a limitation on the number of accused by
reference to their command authority and the gravity and scale of the crime.20 In reference to
Lubanga21, three elements were formulated by the Court, in relation to the aforementioned
additional gravity threshold. First, is the position of the person, second is the role played by
11
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 66(1).

William A. Schabas, An Introduction to the International Criminal Court 298 (4th ed. Cambridge University
Press).
13
14
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 17(1)(d).
15
Susana SaCuoto, The Gravity Threshold of the International Criminal Court, 23 Amer. Univ. Intl L. R. 811
(2007).
16
Supra note 10.
17
Supra note 6.
18
Supra note 7.
19
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 1.
20
Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915 (2000).
21
Supra note 10.
12
(3)
such person and the third is the role played by those who actual commit the crimes, i.e. armed
groups, organizations etc.
8. Overwhelming evidence can be observed in the present case to demonstrate that the
defendant was merely administrating the prison but had no real authority of the same, and it
was the Astco leadership which exhibited the same.22 The operations of the Astco prison
facilities were not only overseen by the defendant, but by other Astco officials too.23 Therefore,
to conclude, in light of the defendant not exercising any real authority over the prisons, nor
exercising any effective control over the prison officials, the defendant is not responsible, let
alone the most responsible for the barbaric and heinous treatment of prisoners in the Astco
Prisons and hence, the gravity threshold in relation to the defendant is not satisfied, leaving the
case against her inadmissible before the present court.
ISSUE II : WHETHER THE DEFENDANT HAS COMMITTED THE CRIME OF GENOCIDE FOR THE
ATTACK AGAINST CROSSFORDIANS AND THE CRIME OF INCITEMENT OF OTHERS TO COMMIT
GENOCIDE?
9. The defendant has not committed either the crimes of Genocide, as prohibited under Article
6 of the Rome Statute [2.1], nor of incitement of others to commit Genocide as prohibited under
Article 25(3)(e) [2.2], as essential elements of the same have not been satisfied. It is submitted
that the required mens rea required for both the aforementioned offences is of specific intent
i.e. dolus specialis24 is not present in the case at hand. The degree of intent required by article
II of the Genocide Convention can be described as a specific intent or special intent.25
[2.1] THE DEFENDANT HAS NOT COMMITTED THE CRIME OF GENOCIDE
10. As neither are the material elements satisfied, nor is the mental element of dolus specialis
satisfied, the defendant has not committed the crime of Genocide in the present case.
22

Moot Proposition 8.
24
Gerhard Werle, Principle of International Criminal Law 73 (2d ed. Asser 2005).
25
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, (Sep. 8, 1998).
23
(4)
[2.1.1]. That the element of specific intent i.e. dolus specialis is absent
11. The crime of Genocide aims at the physical or biological destruction
26
of the targeted
group27, with such intent directed at national, ethnical, racial or religious groups i.e. the
destruction of the group in whole or in part must be the perpetrators primary intent. 28 The
special intent in the crime of genocide lies in the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such.29 The very definition of this crime
requires a particular state of mind or a specific intent with respect to the overall consequences
of the prohibited act.30 Genocide therefore invites analysis under two headings: the prohibited
underlying acts and the specific genocidal intent or dolus specialis.31 Therefore, acts committed
without the specific intent required by Article II (of the Genocide Convention32) are not
sufficient to constitute genocide33 and hence such individuals cannot be convicted for the crime
of Genocide.34
12. The policy adopted by the defendant lacked the intent to destroy to all inmates as not only
did the defendant not characterize the inmates into a particular group but also that the inmates
were not targeted by reason of any group membership, as discussed below.
[2.1.2]. That the inmates were not targeted by reason of group membership
13. The intent of the accused must be discriminatory in nature i.e. the accused targeted a
protected group and that the crime must not be akin to random killings.35 Discriminatory intent
can further be ascertained when members of a particular group are targeted systematically or
deliberately on account of their membership to such group while excluding members of other
groups can enable the court to infer genocidal intent.36 In Blagojevic37, the Trial Chamber
delineated that the victims of the crime must be targeted because of their membership in the
protected group. Injury or danger to individual rights is only governed by international law if
26
Prosecutor v. Semanza, Case No. ICTR-97-20-T, Trial Chamber, (May 15, 2003).
Supra note 24.
28
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 6.
29
Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence, (Sep. 4, 1998).
30
Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May-26 July 1996,
A/51/10 (1996), page 87.
31
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment, (Jun. 7, 2001).
32
Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (1948), art. II.
33
Jordan Paust, Congress and Genocide: They're not going to get away with it, 11 Michigan J. of Intl L. 95
(1989).
34
Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, (May 26, 2003).
35
Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, (Dec. 14, 1999), www.icty.org/x/cases/jelisic/tjug/en/jeltj991214e.pdf.
36
Supra note 24, at 74.
37
Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60, Judgment, (Jan. 17, 2005).
27
(5)
the individual is attacked specifically because of his or her membership to the group.38 The
intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen
by reason of their membership in the group whose destruction was sought.39 It is merely not
enough that individuals of a protected group are attacked but that the dolus specialis must also
exist40 and hence this crime is distinguished by a surplus intent.41
14. It is brought to the Courts attention that in the present case the prison policies adopted
were not specifically directed towards those of Crossfordian nationality or ethnicity but
towards all prison inmates. The Astco prisons did not entirely compromise of those from the
aforementioned group and comprised of others too, due to which the defendant could not
harbour any specific intent against any particular group i.e. no individual was specifically
attacked due to his or her membership to a specific group. To conclude, the defendant lacked
the specific intent which is crucial for the crime of genocide and hence cannot be convicted for
the same.
[2.1.3]. That all the Prison Inmates did not fall within the purview of protected group
15. To classify a group as national, ethnical, racial or religious, what is most important is the
characteristics upon which perpetrators or third parties base their perceptions.42 Membership
of a group is a subjective rather than an objective concept and depends upon the victim being
perceived by the perpetrator of genocide as belonging to a group slated for destruction.43 The
aforementioned view was confirmed in Semanza44. Therefore, the manner in which the
perpetrator perceives or defines the victim group is crucial.45 This social ascription process46
has not occurred in the present case as the defendant had not perceived all the inmates of the
Asrco Prisons to constitute of any of the protected groups, against whom the prison policies
were directed towards. The defendant has not characterized the inmates to belong to any
particular group and targeted individuals based on such membership and hence all the inmates
38
M. Cherif Bassiouni, International Criminal Law: Sources, Subjects and Contents 193 (3d ed. Martinus Nijhoff
Publishers).
39
Prosecutor v. Krstic, Case No. IT-98-33-T, Trial Chamber, (Aug. 2, 2001).
40
H. Hannum, International Law and Cambodian Genocide: The Sounds of Silence, 11 Human Rights Quarterly
82 (1989).
41
Prosecutor v. Stakic, Case No. IT-97-24-A, Appeals Chamber, (Jul. 31, 2003).
42
Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, (Dec. 14, 1999), www.icty.org/x/cases/jelisic/tjug/en/jeltj991214e.pdf.
43
44
Prosecutor v. Semanza, Case No. ICTR-97-20-T, Trial Chamber, (May 15, 2003).
45
Supra note 24, at 196.
46
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95 1 T, (Trial Chamber), (May 21, 1999).
(6)
would not form a part of any of the protected groups. Hence, the subjective element47 is
completely lacking in the present case due to which all the prison inmates cannot be grouped
into one of the aforementioned protected groups, due to which a dolus specialis is also not
present.
[2.1.4]. That the statements made under Annex. 2 are attributable to the defendants hate
against Crossford and the Western Slade and merely constitutes as motive
16. The distinction between intent and motive must be applied to all crimes laid down in the
Statute.48 The motive for which a crime is committed, as opposed to the intention with which
it is committed, is ordinarily irrelevant to guilt in criminal law.49 In Blaksic50, the Appeals
Chamber has held that, as far as criminal responsibility is concerned, motive is generally
irrelevant in international criminal law. The trial chamber further held that criminal intent
(mens rea) must not be confused with motive and that, in respect of genocide. Therefore, the
defendants motive for the adoption of such policies was her hatred against Crossford and
Western Slade51, however the same is rendered irrelevant for the Courts determination as the
dolus specialis was absent in the present case as neither were all inmates targeted due to their
membership to a particular group nor were all inmates characterized by the defendant to fit any
group.
17. [ARGUENDO]: Even if it is assumed that the motive of the defendant is relevant for the
consideration of the court, in relation to the crime of genocide, the same would not constitute
of the required dolus specialis and the mental element would still not be possessed by the
present defendant.
[2.2] THE DEFENDANT HAS NOT COMMITTED THE CRIME OF INCITEMENT OF

OTHERS TO COMMIT GENOCIDE
18. It is submitted that in the case at hand, the direct element of the speech has not been
satisfied as the defendant herself did not call for any individual to commit genocide against any
particular group. The speech made did not target any members based on group membership,
let alone any groups per se, rather the speech merely had the effect of pumping the soldiers up,
47
Prosecutor v. Brdanin, Case No. IT-99-36-T, (1 September 2004).

Prosecutor v. Krnojelac, Case No. T-97-25-A, Appeals Chamber, (Sep. 17, 2003).
49
D. Frank, The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence 223
(2001).
50
Prosecutor v. Blaskic, Judgment, (Jul. 29, 2004), www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf.
51
Moot Proposition, Page 35.
48
(7)
hence repelling enemy armed forces in the time of war. Furthermore, incitement has not
occurred as the crucial element of dolus specialis was lacking when the defendant made her
speech. In order for an individual to have committed the aforementioned crime, it is necessary
the individual herself harboured such genocidal intent, which has not occurred in the present
case.
[2.2.1]. Direct Incitement has not occurred as the defendant did not call for others to commit
genocide
19. Incitement to commit an offence, under Article 25(3)(e), involves instigating another,
directly and publicly, to commit an offence.52 Incitement under Article 25(3)(e) must include
the direct and public elements, required for incitement, particularly, incitement to commit
genocide.53
20. Direct incitement is that that form of incitement whereby an individual invites or urges
other individuals to commit genocide54 and hence the perpetrator clearly and unmistakably
must communicate to the addressees the need for them to commit genocide.55 There must be
either some form of provocation, encouragement or persuasion directed to the audience or
addressees to commit genocide.56 It should at least mean that the incitement is specifically
aimed at the crime of genocide, as opposed, for example, to simply promoting hatred or
discrimination.57 Hence, the speech must directly counsel or advise lawless action58 and hence,
words are not to be taken merely but according to their full import.59
21. Furthermore, the incitement must be more than mere vague or indirect suggestion goes to
constitute direct incitement and hence the same has the implication that the expression which
is alleged to be inciteful, specifically provokes another to engage in criminal conduct.60
According to the International Law Commission, the element of direct incitement requires
specifically urging another individual to take immediate criminal action rather than merely
making a vague or indirect suggestion.61
52

Supra note 25.
54
Commentary on articles adopted by the Committee, UN Doc. E/AC.25/W.1/Add.1 (Apr. 27, 1948).
55
Wibke Kristin Timmermann, Incitement in International Criminal Law 834 (Routledge 2014).
56
Supra note 25.
57
Toby Mendel, Study on International Standards Relating to Incitement to Genocide or Racial Hatred, U.N.,
(2006), http://www.concernedhistorians.org/content_files/file/TO/239.pdf.
58
Masses Publishing Co. v. Patten, 244 F. 535, 542 (S.D.N.Y.1917).
59
A.F. Gopalani, The International Standard of direct and public incitement to commit Genocide: an obstacle to
U.S. ratification of the International Criminal Court Statute?, 32 Cal. Western Intl L. J. 87 (2001).
60
Supra note 54.
61
Supra note 30.
53
(8)
22. The defendant has not called for any part of the audience to attack Crossfordians nor has
she directly encouraged or persuaded the addressees to commit genocidal crimes against the
Crossfordians and hence the direct element of the crime is not satisfied. At most, the speech
could be interpreted to make vague or indirect suggestion to attack Crossfordians, however, in
reference to the abovementioned interpretation by the ICTR, the same would not constitute as
inciting others to commit genocide.
[2.2.2]. That the element of dolus specialis was lacking when the defendant made the speech
23. Incitement to commit genocide requires a double intent: the act of incitement must be
intentional and that the inciter herself must have a dolus specialis62. The mens rea required for
the crime of direct and public incitement to commit genocide lies in the intent to directly prompt
or provoke another to commit genocide. It implies a desire on the part of the perpetrator to
create by his actions a particular state of mind necessary to commit such a crime in the minds
of the person(s) he is so engaging.63
24. Incitement must be assessed on a case-by-case basis, in light of the culture, context and
the specific circumstances of the case.64 Hence, the context in which the statement, utterance,
or speech is made in is also crucial for the Courts determination.65
25. In the present case, the speech must be understood in the context with which the same was
communicated. Eastern Slade was at was war with Western Slade and the effect of the speech
was merely to pump up and encourage the armed forces to quell any armed threat from
Western Slade. The defendants intent was neither to incite, neither did she herself possess the
dolus specialis to commit genocide. The intent with which the speech was communicated with
was to merely inspire the soldiers and to demoralize their enemies.
62
Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgment and Sentencing, (Jan. 27, 2000).
Supra note 25.
64
Id.
65
Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-A, Judgment, (Dec. 3, 2003).
63
(9)
ISSUE III : WHETHER THE WAR CRIME OF TORTURE OR INHUMAN TREATMENT, UNDER
ARTICLE 8(2)(a)(ii) FOR INFLICTING PHYSICAL PAIN UPON THE PRISONERS AND THE PERSONS
PROTECTED UNDER THE GENEVA CONVENTION OF 1949 AND ARTICLE 25(3)
(b) OF THE STATUTE
HAS OCCURRED?
25. Under Article 8(2)(a)(ii) two war crimes are mentioned i.e. torture and inhuman treatment
and the Elements of Crimes under Article 8(2) (a) (ii) requires six elements for torture and five
elements for inhuman treatment to be satisfied. All the five elements of inhuman treatment are
common to the elements of torture66. Element 2 and 5 of war crime of torture is not satisfied
and Element 4 of war crime of inhuman treatment is not satisfied. Elements 5 and 4 of torture
and inhuman treatment are common.
[3.1] ELEMENT 2 OF WAR CRIME OF TORTURE IS NOT SATISFIED AS THE

PURPOSE OF INFLICTION OF PAIN OR SUFFERING WAS NOT FOR OBTAINING
INFORMATION OR A CONFESSION, PUNISHMENT, INTIMIDATION OR COERCION
26. War crime of torture necessitates an intention to cause great suffering or serious injury to
body or mental health67 for the purpose of infliction of pain or suffering for obtaining
information or a confession, punishment, intimidation or coercion or for any reason based on
discrimination of any kind. In the Furundzija68 judgment, the ICTY Trial Chamber spelled out
that the torture must aim at obtaining information or a confession, or at punishing, intimidating,
humiliating or coercing the victim or a third person, or at discriminating, on any ground against
the victim or a third person. In the present case the defendant had neither intention to obtain
any information or confession nor to punish, intimidate or coerce any of the prisoners.
It is brought before this Honble Court that in reference to Annexure 169 it can be deduced that
the purpose of infliction of pain through corporal punishment was just to maintain the discipline
of the prison.
27. It is humbly submitted that the infliction of pain or suffering was not based on any kind
of discrimination as the directions were not limited to the prisoners of Crossford or Western
Slade nationality but it was for all the prisoners in the prisons.
66
Element 2 of torture under Article 8(2)(a)(ii) is not common with the elements of crime of inhuman treatment
under same Article.
67
Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, (Feb 26, 2001).
68
The Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, (Jun. 11, 1998).
69
Moot Proposition, Annexure 1.
(10)
[3.2] ELEMENT 5 OF WAR CRIME OF TORTURE AND ELEMENT 4 OF INHUMAN
TREATMENT ARE NOT SATISFIED AS THE CONDUCT DID NOT TOOK PLACE IN
THE CONTEXT OF AND WAS NOT ASSOCIATED WITH IAC
28. One of the common elements for war crime of torture and inhuman treatment is that there
has to be a nexus between these war crimes and international armed conflict (from herein
IAC). It is imperative to find an evident nexus between the alleged war crime and the armed
conflict as a whole.70 It is sufficient that the alleged crimes were closely related to the hostilities
occurring in other parts of the territories controlled by the parties to the conflict.71 Only
offences that are closely related to the armed conflict will constitute war crimes.72
29. In the present case all the alleged infliction of pain or suffering of any and all kind was
not in context of and was not associated with the armed conflict between Eastern Slade and
Western Slade. All the alleged war crimes were committed in the prisons which are run by
private prison company Astco.73 As it was a private company which had a motive of earning
profit from the facilities74, this was the reason they were subject to labour as they had to provide
services that equated to the cost of imprisonment which included the capital cost of the facilities
and a profit margin for Astco.75
30. The armed conflict must have played a substantial part in the accuseds decision and
ability to commit the crime, and the manner in which it was committed or the purpose for which
it was committed. In the present case Susan Wanchuk was administering five prisons and all
the direction related to working hours and other disciplinary action was not only limited to the
prisoners of Crossford or Western Slade nationality but to all the prisoners. So it cannot be said
that all the directions which allegedly resulted into alleged war crime were closely related with
international armed conflict. Hence it is evident enough that there was a nexus between all the
direction given and making profit not of alleged war crime and international armed conflict.
70
Supra note 50.

72
The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Decision on confirmation of charges, (Sep.
26, 2008), https://www.icc-cpi.int/iccdocs/doc/doc571253.pdf.
73
Moot Proposition 8.
74
Moot Proposition 9.
75
Id.
71
(11)
[3.3] GIVEN THE CIRCUMSTANCES, 50 WORKING HOURS WAS NOT INHUMAN
TREATMENT
31. According to Convention No. 176 of International Labour Organisation (ILO) the
limitation of working hours is eight hours a day or 48 hours a week. In the present case the
prisoners were subject to the labour of 50 hours a week,77 which is not unreasonable as it is
almost close to the international standards and hence it cannot be considered as inhuman
treatment. As mentioned above Astco was a private company which has to run the prison on
costneutral basis and also look for some profit, under these circumstances Astco authorities
have to make some arrangements so that they could make some profit and that was making the
prisoners do some reasonable amount of work.
32. It is humbly submitted that the prisoners were not subject to war crime of torture and
inhuman treatment as there was no infliction of pain or suffering for the purpose of obtaining
information or confession or punishment, intimidation or coercion or on any reason based on
discrimination and alleged crimes were not done in the context of and was associated with
international armed conflict.
[3.4] SUSAN WANCHUK BEARS NO LIABILITY FOR WAR CRIME OF TORTURE

AND INHUMAN TREATMENT ON THE BASIS OF ORDERS GIVEN BY HER
33. The actus reus of ordering has been defined as a person in a position of authority
instructing another person to commit an offence.78The notion of instructing requires a
positive action by the person in a position of authority. 79An order cannot be given in the
absence of a prior positive act.
34. The person ordering must have the required mens rea for the crime with which he is
charged and he must also have been aware of the substantial likelihood that the crime
committed would be the consequence of the execution or implementation of the order.80
35. It is humbly submitted that all the orders which emanated from the office of the defendant
was reasonable and was not manifestly illegal as all the orders and directions were regarding
maintaining discipline in the prisons and earning profits81 within reasonable limits. The
defendant had not required casual mens rea for the crime with which she is charged. In no
76
The Hours of Work (Industry) Convention, 1919.

78
Prosecutor v. Galic, Case No. IT-98-29-T, Judgement and Opinion, (5 December 2003).
79
Supra note 50.
80
81
77
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ordinary sense she could have known that the execution and implementation of directions and
measures given by her would allegedly constitute war crime of torture and inhuman treatment.
The intention of the defendant was just to maintain discipline in the prisons, the discipline of
prisons became more important as Eastern Slade was at war during that period and in war time
any internal disturbance into the prisons would have disturbed the atmosphere of Eastern Slade,
this becomes a priority as the prisoners in prisons are not just the civilian of the Eastern Slade
but also prisoners of war.
36. Hence, it is humbly submitted that the defendant did not order alleged war crime of torture
and inhuman treatment as she did not gave those orders with the intention of committing war
crime, those orders were just disciplinary measures which was given to maintain peace in the
prison during war time.
ISSUE IV : WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF

WARFARE BY DEPRIVATION OF OBJECTS INDISPENSABLE TO THEIR SURVIVAL UNDER ARTICLE 8
(2)(b) (xxv) AND ARTICLE 25(3)(d) OF THE ROME STATUE HAS OCCURRED?
37. Under Article 8(2)(b)(xxv) war crime of intentionally using starvation of civilians as
method of warfare and the Elements of Crime under Article 8(2)(b)(xxv) requires 4 elements
to be satisfied. Elements 1, 2 and 3 are not satisfied.
[4.1] ELEMENT 1 OF WAR CRIME OF INTENTIONALLY USING STARVATION OF

CIVILIANS AS A METHOD OF WARFARE IS NOT SATISFIED AS CIVILIANS WAS
NOT DEPRIVED OF THE OBJECTS INDISPENSABLE TO THEIR SURVIVAL
38. For the war crime of starvation, the deprivation is of not only food and drink, but also the
more general meaning of deprivation of some essential commodity, of something necessary to
live.82 The term depriving encompasses a large variety of acts or omission. Examples may be
found in Article 54(2) of Additional Protocol I: to attack, destroy, remove or render useless.83
Another conduct mentioned in the Rome Statute itself: impeding relief supplies.84 The war
crime of starvation required a mental element to be established.
82
Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court 256 (1st ed. 1999).
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3 (1977).
84
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 8(2)(b)(xxv).
83
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39. In the present case, the defendant did not deprive prisoners to any material indispensable
to their survival, as she gave proper reasonable opportunity to earn all the materials which are
vital to survival.
40. During that time Eastern Slade and Western Slade were at war which continues for 2 years,
because of which there rises a need for prisoners in the prisons to be used as assets in furthering
the sustenance of the country. The prisoners were a liability to the country, which were
converted into asset as they were given the opportunity to earn their survival materials.
[4.2] ELEMENT 2 OF WAR CRIME OF INTENTIONALLY USING STARVATION OF

CIVILIANS AS A METHOD OF WARFARE IS NOT SATISFIED AS THE DEFENDANT
DID NOT INTEND TO STARVE CIVILIANS AS A METHOD OF WARFARE
41. The war crime of intentionally using starvation of civilians as a method of warfare
necessitates a mental element to use starvation as a method of warfare. She did not intend to
starve prisoners to any of the material which are indispensable to their survival. No orders were
emanated from her office which suggests that she wanted to keep the prisoner in the scarcity
of the central survival materials.
42. The term starvation is generally understood by everyone. To use it a method of warfare
would be to provoke it deliberately, causing the population to suffer hunger, particularly by
depriving it of its sources of food or of supplies. Starvation is referred to here as a method of
warfare, i.e. a weapon to annihilate or weaken the population.85
43. This was not related to or was not in context as a method of warfare as the prisons were
run by a private company Astco, which also had to run the prisons on costneutral basis and
as being a private company they had a motive to make a margin of profit out of the prisons. All
the orders which emanated from the office of defendant were with the intention to maintain
discipline in the prison and also to make some profit out of it.
[4.3] ELEMENT 3 OF WAR CRIME OF INTENTIONALLY USING STARVATION AS A

METHOD OF WARFARE IS NOT SATISFIED AS THE CONDUCT DID NOT TOOK
PLACE IN THE CONTEXT OF OR WAS NOT ASSOCIATED WITH AN IAC
44. The armed conflict must have played a substantial part in the accuseds decision and
ability to commit the crime, and the manner in which it was committed or the purpose for which
85
C. Swinarski and B. Zimmermann, Commentary on the Additional Protocol of 8 June 1977 to the Geneva
Conventions of 12 August 1949 2089 (ICRC Martinus Nijhoff Geneva 1987).
(14)
it was committed. There has to be a nexus between alleged crime and international armed
conflict. Here all the directions from the defendants office were just to maintain discipline and
to make prison cost effective.
[4.4] ALTERNATIVELY, IN THE EVENT THAT THE COURT FINDS THAT A CRIME
HAS BEEN COMMITTED, SUSAN WANCHUK STILL DOES NOT BEAR CRIMINAL
RESPONSIBILITY UNDER ARTICLE 25 (3)(d)
[4.4.1]. That the contribution of Susan Wanchuk was not in lieu of the crime committed hence
she did not have any intention towards the commission of war crime of starvation
45. A new form of secondary or accessorial liability is provided for in Article 25(3)(d) of the
Rome Statute. It imposes liability where the offender in any way contributes to the commission
or attempted commission of such a crime by a group of persons acting with a common purpose.
The contribution need involve intent to commit the specific crime, as long as it is made with
the aim of furthering the criminal activity or criminal purpose of the group.
46. The defendant does not bear the criminal responsibility of war crime of starvation as
criminal responsibility under Article 25(3)(d) requires intention to commit the specific crime
with the aim of furthering the criminal activity or criminal purpose of the group whereas the
defendant did not have any intention towards this. As discussed above she had intention of
maintaining discipline in the prisons while making some profit, as the prisons were run by a
private company Astco.
[4.4.2]. Susan Wanchuk was following superior order

47. The defendant i.e. Susan Wanchuk bears no criminal responsibility of alleged war crimes
as she was following superior orders. Under Article 33 of the Rome Statute, superior orders
are a defence when three conditions are met: the accused must be under a legal obligation to
obey orders of a government or superior; the accused must not know that the order was
unlawful; and the order must not be manifestly unlawful.
[4.4.3]. Susan Wanchuk was under a legal obligation to obey orders of her superior Andre
Bouillon.
48. Article 33(1) contemplates the possibility that the order be given by a superior who is
either military or civilian. Susan Wanchuk had a legal obligation to obey the orders of Andre
Bouillon as she was a part of Astco Company which was headed by Andre Bouillon. Susan
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Wanchuk was at the second tier in hierarchy along with Astco Chairperson and Andre Bouillon
was on the top of the hierarchy chart86. All the orders regarding prison regulations were given
by Andre Bouillon in the capacity of being superior most in the company. Hence, it is humbly
submitted that Susan Wanchuk was under a legal obligation to obey the orders of her superior
Andre Bouillon.
[4.4.4]. Susan Wanchuk did not know that the order was unlawful
49. All the orders which emanated from the office of Susan Wanchuk on the directions of
Andre Bouillon was regarding maintaining discipline in the prisons and making a profit margin
within reasonable limits. Those orders did not seem unlawful to Susan Wanchuk as the orders
of maintaining discipline was the need of the hour as Eastern Slade and Western Slade was at
war.
[4.4.5]. The order must not be manifestly unlawful

50. At this stage in the analysis of the defence, there is no longer any debate as to the illegality
of the order, which is established. The question is whether unlawfulness was obvious to a
person of ordinary understanding.87 The orders which emanated from the office of defendant
were regarding disciplinary measure during war time which in any sense could not have taken
as unlawful.
51. In fact, the definition in article 33(1) is consistent with the customary international law.
Moreover, it is a specific affirmation of the general principle, set out in Article 30 of the Statute,
that a person cannot be convicted of a crime without knowledge and intent, or mens rea. A
subordinated who commits war crime acting under a mistaken belief that the act is lawful does
not have a guilty mind, and should not be punished within a fair criminal justice system.
52. Hence, it is humbly submitted that the defendant had no criminal responsibility of war
crime as she was following superior orders of Andre Bouillon.
86

Yoram Dinstein and A.W. Sijthoff, The Defence of Obedience to Superior Orders in International Law 23
(Leiden 1965).
87
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ISSUE V: WHETHER SUSAN WANCHUK HAS COMMITTED THE CRIME AGAINST HUMANITY OF
TORTURE FOR INFLICTING PHYSICAL OR MENTAL PAIN OR SUFFERING UPON THE CROSSFORDIANS
AND WAS CRIMINALLY RESPONSIBLE FOR CRIMES COMMITTED BY HER SUBORDINATES?
53. Crime against Humanity pursuant to the ICC Statute are any of the enumerated acts in
Article 7 when committed as part of a widespread or systematic attack directed against any
civilian population, with the knowledge of the attack88.
54. When any attack as a course of conduct89 is directed against any civilian population where
the civilian population is the primary object of the attack and not just an incidental victim of
the attack90 and also when such an attack is carried out over a large geographical area directed
against a large number of civilians91 is said to be a crime against humanity.92
55. It is humbly submitted before this Honble Court that no Crime against Humanity was
committed by the defendant since the attack that was initiated by Eastern Slade against Western
Slade was a very necessary and reciprocal war time measure and not a course of conduct
involving multiple commission of acts referred to in Article 793, furthermore the attack lacked
the element of being against a civilian population because in the case at hand, the civilian
population was just an incidental victims where both Eastern Slade and Western Slade were
involved in a maritime war and as a preventive measure both the nations used to capture ships
that used to approach their respective mainlands in order to make sure that no enemy ship
could touchdown the shores of their respective countries and this precautionary war time
measure led to many civilian ships being captured and seized and their crews being taken into
the Prisoner of War camps which very evidently highlights the fact that civilians were not the
primary object of the attack and therefore no Crime against Humanity was committed by the
defendant.
56. [ARGUENDO]: Even if it is said that the Elements of Crime against Humanity are
satisfied in the present case, even then it is humbly submitted that the Crime against Humanity
of Torture was not committed by the defendant. The Article 7(1)(f) of the Elements of Crime
lays down 5 elements which must be proved in order to establish that the Crime against
88

Prosecutor v. Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of
the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, (Jun. 15, 2009).
90
Id.
91
Supra note 90.
92
Supra note 88.
93
Rome Statute, Elements of Crimes, ICC-ASP/1/3 (2002), art. 7, para. 5.
89
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Humanity of Torture has taken place, where Elements 4 and 5 are not satisfied where Element
4 is coherent with the General Element when establishing a Crime against Humanity.
[5.1] ELEMENT 5 IS NOT SATISFIED AS SUSAN WANCHUK DID NOT INTEND IT TO

BE A WIDESPREAD ATTACK AGAINST A CIVILIAN POPULATION
57. As stated earlier, the course of conduct94 adopted by Susan Wanchuk was not intended to
be an attack against civilian population and they were just incidental victims95 of unavoidable
wartime circumstances. Since as an essential for Element 5, the attack should be intended
against civilians96, a very fact that was lacking in the case at hand, for the very reason which
Element 5 does not get satisfied.
[5.2] SUSAN WANCHUK DOES NOT INCUR ANY LIABILITY UNDER ARTICLE 28(b)
58. Superior responsibility has its origins in military law and finds its basis in the principle
that armed forces always should be commanded by a person responsible for his subordinates97
and the corresponding legal duty of the superior to ensure that members of the armed forces
under their control are aware of their obligations98 and to prevent and repress breaches
undertaken by subordinates.99 Article 28(b) of the Rome Statute refers to the applicability of
the doctrine of superior responsibility to superior subordinate relationship100.
[5.3] SUSAN WANCHUK DID NOT KNOW THAT HER SUBORDINATES WERE
ABOUT TO COMMIT CRIMES
59. One of the principal requirements to establish Superior-Subordinate relationship is that
the Superior knew tor disregarded information that her subordinates were about to commit
crimes101 and when referred to the case at hand, it is contended that the defendant Susan
Wanchuk did not know or had the reason to believe that her subordinates were about to commit
94
Supra note 90.

Id.
96
Situation in the Republic of Kenya, ICC PT. Ch. II, ICC PT. Ch. II, ICC-01/09-19, Decision Pursuant to Article
15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, (31
March 2010).
97
Hague Regulations, art. 1(1), 1899.
98
International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3 (1977), art. 87(2).
99
International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3 (1977), art. 86(1).
100
Kai Ambos, The Rome Statute of the International Criminal Court A Commentary 823 (Oxford University
Press 2002).
101
Rome Statute, Elements of Crimes, ICC-ASP/1/3 (2002), art. 28(b)(i).
95
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such crimes because she was the one taking care of the disciplinary regime at the prison
whereby orders were issued on her behalf to her subordinates by way of mails102, such mails
used to entail directions for the Circuit-in-Charges to ensure efficient reformative
reconstruction of the inmates103 which also used to contain disciplinary actions to be taken by
the guards at their discretion, this power was vested in the guards in order to ensure that
situations do not at any point of time go out of hand, and above all they were disciplinary
measures that were to be adopted through the prisons. So the defendants actions at any point
of time do not show the requisite metal intent to order her subordinates to commit crimes.
60. Another essential to prove the existence of criminal responsibility of a superior for the
crimes committed by his subordinates is that such crimes were within the effective
responsibility and control of the superior104, in the case at hand, the defendant Susan Wanchuk
used to issue orders directly to the Circuit-In-charges and such orders were implemented by
the guards along with the prison wardens. Such orders used to be disciplinary actions that are
to be imposed throughout the prison, and not crimes that were ordered to be committed by the
guards. So since no crime has been committed by the defendant in the first place, no
responsibility is imposed on the defendant.
61. [ARGUENDO]: It is humbly submitted before this Honble Court that even if it is said
that Wanchuk bore responsibility for the criminal acts of her subordinates, it is contended
before the Court that for the purposes of Article 33, which deals with superior orders mandates
that orders to commit crime against humanity are manifestly unlawful105. So even if the Crime
against Humanity of Torture has been committed, the responsibility of the very same does not
fall on Susan Wanchuk.
102

Id.
104
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 28(b)(ii).
105
103
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PRAYER
Wherefore, it is prayed, in light of the issues raised, arguments advanced, and authorities cited,
that his Honble Court may be pleased to declare that:
a) The ICC does not have jurisdiction over the particular case and therefore the same is
inadmissible and that the selection process was improper;
b) Susan Wanchuck has not committed Genocide for the Attack against Crossfordians
under Article 6 and Article 25(3)(e) of the Rome Statute;
c) Susan Wanchuk is not guilty for committing Crime against Humanity of Torture against
the Crossfordian People under Article 7(1)(f) and 28(b) of the Statute;
d) Susan Wanchuck is not guilty for committing the War Crime of Torture or Inhuman
Treatment under Article 8(2)(a)(ii) for inflicting severe pain upon the prisoners and the
persons protected under the Geneva Convention of 1949 and Article 25(3)(b);
e) Susan Wanchuck is not guilty for committing the War Crime of intentionally using
starvation as a method of warfare against the Crossfordians by depriving them of
objects indispensable to their survival, including willfully impending relief supplies as
provided for under the Geneva Conventions under Article 8(2)(b)(xxv) and Article
25(3)(d) of the Rome Statute.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests
of Justice, Fairness, Equity and Good Conscience.
For this Act of Kindness, the Prosecutor Shall Duty Bound Forever Pray.
Sd/.
(Counsel for the Defence)
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Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016

THE TRIAL CHAMBER

CHARGES AGAINST THE ACCUSED:

FOR THE ATTACK AGAINST

ARTICLE 25(3)(e) OF THE ROME STATUTE;

28(b) OF THE STATUTE;

4. THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF WARFARE

WORD COUNT: 6700

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

INDEX OF AUTHORITIES .............................................................................................................iii

ISSUE III : WHETHER

CRIME OF TORTURE OR INHUMAN TREATMENT, UNDER

STATUTE HAS OCCURRED? ...................................................................................................... 10

[3.1]. Element 2 of war crime of torture is not satisfied ......................................................... 10

ISSUE IV : WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD

[4.1]. Element 1 of war crime of intentionally using starvation of civilians as a method of

: WHETHER SUSAN WANCHUK HAS COMMITTED THE CRIME AGAINST HUMANITY OF

TORTURE FOR INFLICTING PHYSICAL OR MENTAL PAIN OR SUFFERING UPON THE

Masses Publishing Co. v. Patten 244 F. 535, 542 (S.D.N.Y.1917)

424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome

(Jan. 17, 2005)

T, (Feb 26, 2001)

Judgment, (Jun. 7, 2001)

and Sentence, (Sep. 4, 1998)

Prosecutor v. Kayishema and Ruzindana Case No. ICTR-95 1 T,

(Trial Chamber), (May 21, 1999)

(Sep. 17, 2003)

Prosecutor v. Mbaushimana Case No. ICC - 01/ 04 - 01/10 40,

Confirmation of Charges, (Dec. 16, 2011)

Sentencing, (Jan. 27, 2000)

99-52-A, Judgment, (Dec. 3, 2003)

(May 15, 2003)

Decision on the Prosecutors Application for a Warrant of Arrest,

ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute

Essays, Articles and Journals

1. Commentary on articles adopted by the Committee, UN Doc. E/AC.25/W.1/Add.1 (Apr.

[I]. GEORAPHICAL CONDITIONS AND SITUATION OF COUNTRIES

[II]. EASTERN SLADE AND WESTERN SLADE DECLARED WAR ON EACH

[V]. ATROCITIES COMMITTED AGAINST THE PRISONERS OF WAR IN

[VI]. PEACE TREATY AND INITIATION OF INVESTIGATION AGAINST

[VIII]. VICTIMS REPRESENTATION IN RELATION TO KARL GRAHAM

as a method of warfare against the Crossfordians by depriving them of objects indispensable

[ISSUE: IV] WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS

STATUE HAS OCCURRED?

[1.1] THE SELECTION PROCESS IS NOT ENVISIONED WITHIN THE ROME

Moot Proposition 14.

[1.2] THE PROSECUTOR HAS NOT ACTED INDEPENDENTLY AND WAS

[1.2.2]. That the Prosecution is burdened with a higher Standard of Proof

Rome Statute, 2187 U.N.T.S. 90 (1998), art. 66(1).

[2.1] THE DEFENDANT HAS NOT COMMITTED THE CRIME OF GENOCIDE

Moot Proposition 10.

[2.2] THE DEFENDANT HAS NOT COMMITTED THE CRIME OF INCITEMENT OF

Prosecutor v. Brdanin, Case No. IT-99-36-T, (1 September 2004).

Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, (May 26, 2003).

(b) OF THE STATUTE

[3.1] ELEMENT 2 OF WAR CRIME OF TORTURE IS NOT SATISFIED AS THE

Supra note 50.

[3.4] SUSAN WANCHUK BEARS NO LIABILITY FOR WAR CRIME OF TORTURE

The Hours of Work (Industry) Convention, 1919.

ISSUE IV : WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF

[4.1] ELEMENT 1 OF WAR CRIME OF INTENTIONALLY USING STARVATION OF

[4.2] ELEMENT 2 OF WAR CRIME OF INTENTIONALLY USING STARVATION OF

[4.3] ELEMENT 3 OF WAR CRIME OF INTENTIONALLY USING STARVATION AS A