Guide For Participants of Moot Courts. Part III. ICC Trial Competition

Guide for Participants
of Moot Courts
Part III
ICC Trial Competition
REDACTION:
Anita Garnuszek
Wojciech Giemza
Laura Mazur
Title of publication: Guide for Participants of Moot Courts Part III. ICC Trial Competition
Editorial Staff: Anita Garnuszek, Wojciech Giemza, Laura Mazur
Authors: Karolina Alama-Osmlska, Anita Garnuszek, Wojciech Giemza, Laura Mazur,

Aleksandra Surma
Composition: Laura Mazur
Proof-reading: Karolina Alama-Osmlska, Laura Mazur, Aleksandra Surma
ICLN ICC Trial Competition & Karolina Alama-Osmlska, Anita Garnuszek,

Wojciech Giemza, Laura Mazur, Aleksandra Surma, Warsaw, 2013
All of the competition materials belong to the ICLN ICC Trial Competition. Authors of this
publication has received an explicit authorization from the ICLN ICC Trial Competition to
use the materials.
Cover design: Laura Mazur
ISBN 978-83-63397-18-0
Publisher:
Faculty of Law and Administration of the University of Warsaw
Interdisciplinary Students Association Diplomacy and Law
This volume is published thanks to the support of:
Advisory Council for Students Academic Affairs of the University of Warsaw
The University of Warsaw Foundation
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FOREWORD p. 3
INFORMATION ABOUT THE STUDENT ASSOCIATION p. 5
TASKS OF THE TEAMS p. 6
THE CASE OF 2013 p. 7
THE WORK OF WARSAW UNIVERSITY TEAM 2013
1. COUNSEL FOR THE PROSECUTION
Laura Mazur
1.1. MEMORIAL p. 12
1.2. JUDGE COMMENTS p. 46
2. COUNSEL FOR THE DEFENCE
Anita Garnuszek
2.1. MEMORIAL p. 47
3. COUNSEL FOR THE VICTIMS
Wojciech Giemza
2.3. MEMORIAL p. 82
ORAL PRESENTATIONS p. 114
Aleksandra Surma
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Dear Readers,
The International Criminal Court, as the first permanent institution set up to try alleged
perpetrators of the most horrific crimes against humanity, has drawn much interest amongst
lawyers and non-lawyers alike. Nowhere is this more appropriate than amongst the lawyers
and policy makers of the future. Thus, the International Criminal Law Network (ICLN) has
developed the ICC Trial Competition. While there exist a number of established moot court
competitions, the ICC Trial Competition is unique in its direct focus on ICC proceedings and
international criminal law. In 2011, the International Criminal Court also recognized the
ICLN ICC Trial Competition as the only official English International Criminal Court moot
court competition in the world. The simulation of the fictional process before the International
Criminal Court encourages to, and guides in, further studies in the field of international
criminal law, human rights and international humanitarian law. Through its work,
International Criminal Court Trial Competition promotes the values of human rights and
international justice and to make a contribution toward intercultural understanding among
young people.
Moreover, the competition allows law students with a common interest in international
criminal law to come together, meet other budding lawyers from around the world in an
exciting and fun setting and to meet highly respected legal figures in international criminal
law.
The International Criminal Court Trial Competition 2012 took place in Hague, Netherlands on
Model International Criminal Court 2013 for universities took place in Krzyowa, Poland on
21-26 April 2013. Students represented 36 teams from 27 countries worldwide. The
competition gives a wide scope of advocacy in allowing students not only to take on the role
of prosecutor or defence counsel, but also that of victims' counsel. The judges are established
and highly respected practitioners in the field of international criminal law and are comprised
of both lawyers and internationally renowned judges from the ICC and ICTY themselves.
The University of Warsaw was represented by team of law students: Laura Mazur
(Prosecutor), Anita Garnuszek (Defence), Wojciech Giemza (Victims Counsel), and two
researchers Karolina Alama-Osmlska and Aleksandra Surma.
This short guidebook is prepared by participants from University of Warsaw for the future
potential participants in the competition. Our goal is to help future teams to prepare at their
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best for the simulation and get to know the structure of the competition. This guidebook can
be treated as an educational tool for the training.
Have a good reading,
Karolina Alama-Osmlska
Anita Garnuszek
Wojciech Giemza
Laura Mazur
Aleksandra Surma
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INFORMATION ABOUT THE STUDENT SOCIETY
Interdisciplinary Student Association Diplomacy and Law

La Diplomatie et le Droit was established on University of
Warsaw in 2006 by several students interested in connections
between law and international politics.
Tutor of the Association is Aleksander Gubrynowicz, Ph.D. and academic lecturer on

Law of the Faculty of Law and Administration of University of Warsaw. Association
organises students debates, meetings with experts (diplomats, journalists, officials), academic
conferences and negotiation games. Main projects of the Association are:
Model United Nations (MUN) students simulation of the sessions of organs and
specialised agencies of United Nations, run according to the rules of procedure identical like
in the real UN. Students become ambassadors of the member states of UN and debate on the
issues of global politics. So far, members of the Association participated in MUN conferences
in Oxford, The Hague, Barcelona and Paris. Effects of the research made for the conference
are contained in articles of participants, published in e-books on the Association website.
Since 2009 Association organises Model Security Council on University of Warsaw.
Academic conferences concerning import ant issues of law and international politics. So
far, over 250 students and Ph.D. students participated in five editions two national and three
international that took place. Each conference was followed by the book with the articles of
the participants.
For detailed information about present activities, please consult webpage, visit our
profile on Facebook or write an e-mail:
www.dip.mish.uw.edu.pl
dip.kn@uw.edu.pl
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TASKS OF THE TEAMS
In accordance with the rules of the competition, each team shall write a Memorial for each of
these groups, setting forth its legal arguments in the context of the interlocutory appeal by the
Defense, the Prosecutor, and Victims Counsel from the Pre-Trial Chambers Decision on
Jurisdiction and Admissibility in the Case of Womba Tulga. The facts and procedural history
are set forth in the Decision of the Pre-Trial Chamber, reproduced below. Each team will be
evaluated on its knowledge of the relevant rules and precedents of international criminal law;
the quality of its arguments; and its overall presentation.
I. Task of the Prosecution Teams

The Prosecution teams in each issue argue in favor of the criminal responsibility of the
Accused. The task is to argue and prove all relevant elements of the crime the Accused is held
accountable of.
II. Task of the Defense Teams

The Defense teams in each issue argue against the criminal responsibility of the Accused.
This does not mean, however, that the Defense teams need to argue against every single claim
made by the Prosecution, but only those points that can reasonably be opposed to, and create
sufficient doubt in the minds of the Judges.
III. Task of the Common Legal Representative for Victims

The Victims Counsel teams had a task similar to the Prosecution office with the distinction of
focusing on the effect of the crime on the victims. In contrary to the Prosecution, the Victims
Counsel should be more emotional. The Victims Counsel should also secure the Prosecution
in proving the elements of crime.
For the purpose of this publication being comprehensible for the reader, the memorials lack
some parts as team numbers, original page numbers, table of contents etc.
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The Case (April 2013)
Case before the International Criminal Court (ICC):

Appeal from the Pre-Trial Chambers Decision on Jurisdiction and Admissibility
in the Case of Womba Tulga of the Republic of Pontasia
Author: Michael P. Scharf1
Established Agenda for Appeal of the Pre-Trial Chambers Decision

The Appeals Chamber seeks submissions of all parties on the following issues:
a. Whether the crime of forced marriage is a cognizable crime against humanity under
Article 7(1)(k) of the ICC Statute;
b. Whether the alleged acts that occurred in the territory of Edom are sufficient to serve as a
basis of jurisdiction for alleged crimes against humanity in Pontasia under Article 12(2)(a)
and Article 14(1) of the ICC Statute; and
c. Whether the case is inadmissible because the proceedings of the Republic of Pontasias
Truth and Reconciliation Commission preclude trial before the ICC under Articles 17 and
20 of the ICC Statute.
Decision on Jurisdiction and Admissibility

[This is a fictional document for use in the ICC Trial Competition]
__________________________
Moot International Criminal Court
Pre-Trial Chamber VI
ICLN ICC Trial Competition
Situation in Edom
The Prosecutor v. Womba Tulga
Pre-Trial Chamber VI of the International Criminal Court renders this decision on the application
filed by the Defense challenging the jurisdiction of the ICC and the admissibility of the case.
1
Michael P. Scharf - Professor of Law, Associate Dean of Global Legal Studies, and Director of the Frederick K. Cox
International Law Center at Case Western Reserve University School of Law. In February 2005 Scharf was nominated
for the Nobel Peace Prize by six governments and the Prosecutor of an International Criminal Tribunal for the work he
has done to help in the prosecution of major war criminals, such as Slobodan Miloevi, Charles Taylor (Liberia), and
Saddam Hussein.
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Counsel for the Prosecution Memorial
1.This case arises out of allegations of crimes against humanity committed in the territory of the
Republic of Pontasia, which is not a State Party to the ICC and has not accepted the ICCs
jurisdiction over this matter, and related acts that took place in the territory of the Kingdom of
Edom, which is a State Party, having ratified the ICC Statute in 2005. Both countries are parties to
the UN Charter, the 1949 Geneva Conventions, and the Additional Protocols thereto of 1977, as
well as the International Covenant on Civil and Political Rights, and the Vienna Convention on the
Law of Treaties. Pontasia and Edom do not have a bilateral extradition treaty. The following facts
were jointly stipulated by the parties and participants of this case.
2. The Republic of Pontasia (population 10 million, 150,000 square miles) and the Kingdom of
Edom (population 6 million, 100,000 square miles), are located adjacent to each other (Pontasia to
the West and Edom to the East) on the south coast of the Emerald Sea. See attached map. Although
it is well-marked, the border between the two countries is lightly patrolled and extremely porous.
3. The population of Pontasia consist of two ethnic groups: the Anots (80 percent), who live mainly
in the northern cities bordering the Emerald Sea, and the Hadads (20 percent), who live mainly in
small towns and farming communities in the south of Pontasia. Both groups share similar religious
beliefs and customs, including the widespread practice of arranged marriage where two sets of
parents select their childrens spouses at an early age. Edom, on the other hand, is made up of
several ethnic groups, including the Anots, Hadads, Meitros, Mithras, and Netjers, which are well
integrated throughout the country. In contrast to Pontasia, arranged marriage is not common in
Edom.
4. The Pontasian economy is comprised of salt mining, oil extraction and refining (concentrated in
the north), and farming and textile production (in the south). Since Pontasias independence in
1960, the Anots have increasingly dominated Pontasian political and economic life, while the
Hadads have become an impoverished underclass. At age eighteen, all male citizens of Pontasia are
required to serve in the Pontasia National Army for one year.
5. In October 2011, a rebel group of about 100,000 Hadads of Pontasian nationality, which called
itself the Hadad Liberation Army (HLA), launched a series of coordinated attacks against several
major Pontasian cities with the object of carving out an independent Hadad-controlled State in the
eastern region of Pontasia. Under the command of Womba Tulga, a Pontasian national of Hadad
ethnicity and retired colonel of the Pontasia National Army, the rebels quickly seized control of the
port city of Tarsus, the salt mining city of Shinar, and the oil refining city of Horan - in the north-
east region of Pontasia.
6. After weeks of intense fighting, in November 2011, the 250,000 - strong Pontasian National
Army retook the three cities. There were widespread reports of mistreatment of captured members
of the HLA by the National Army. During the HLAs retreat from the cities, Col. Tulga ordered the
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troops under his command to seize Anot children and conscript them into the HLA. Weve lost this
battle but the war goes on. We shall replenish the ranks of our fallen comrades with Anot boys and
girls, he told his troops.
7. Altogether, the HLA abducted over ten thousand Anot children between the ages of 10 and 15
from Tarsus, Shinar, and Horan. The HLA forces then moved south to the Pontasian National Park,
a 30,000 square mile heavily forested area in the south-eastern corner of Pontasia, where they
engaged in periodic skirmishes with the Pontasian National Army but eluded defeat or widespread
capture.
7. While the HLA treated the abducted boys the same as older Hadad soldiers, the abducted girls
and teenage women were subjected to serious abuses. According to a March 2012 Report of the UN
High Commissioner for Human Rights: The most devastating effect on women of the internal
armed conflict in Pontasia was the phenomenon called bush wife or rebel wife. This was a tactic
adopted by the HLA rebels whereby Anot girls and teenage women were abducted and forcibly
taken as wives. The use of the term wife by the perpetrator was deliberate and strategic. The word
wife demonstrated a rebels control over a woman. His psychological manipulations of her
feelings rendered her unable to deny him his wishes. By calling a woman wife, the husband
openly staked his claim and she was not allowed to have sex with any other person. If she did, she
would be deemed unfaithful and the penalty was severe beating or death. Bush wives were
expected to carry out all the functions of a wife (household chores and maintenance, food
preparation, child rearing, and farming) and more. She was expected to show undying loyalty to her
husband for his protection and reward him with love and affection. Bush wives were constantly
sexually abused, physically battered during pregnancies, and psychologically terrorised by their
husbands, who thereby demonstrated their control over their wives.
8. In January and February 2012, several hundred of the Anot bush wives escaped from their
HLA husbands and made their way across the border to Edom. With Col. Tulgas written
approval, HLA soldiers under his command (including several of the recently conscripted Anot
juvenile soldiers) committed dozens of armed raids into Edom to re-acquire the escaped bush
wives. By the end of February, most of the bush wives had been returned to their HLA
husbands. Only Pontasian girls and teenaged women were taken in these raids and no Edom
nationals or property were injured.
9. With the assistance of a U.N. mediation team, from 20-24 March 2012 the President of Pontasia,
Manfred Bingham, and HLA leader Womba Tulga met at the United Nations Headquarters in New
York to negotiate a comprehensive peace agreement between the two sides. On the morning of 25
March 2012, the two sides signed the Agreement, which was approved a week later by the
Pontasian Parliament and the Council of HLA Rebel Leaders.
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10. The 25 March Agreement provided for: (1) the immediate cessation of hostilities, (2) the phased
disarmament and eventual disbanding of the HLA, (3) the immediate release of all abducted
children and termination of forced marriages; (4) the enactment of domestic legislation to promote
the civil, economic, and social rights of the Hadad population of Pontasia; and (5) the expedited
establishment of a Truth and Reconciliation Commission modeled on that of the South Africa Truth
and Reconciliation Commission, which would hold public hearings, and publish findings regarding
perpetrators. The focus of the Truth Commission was to be on the crimes against humanity (defined
the same as in the ICC Statute) committed against abducted boys and girls by the HLA, and war
crimes in internal armed conflict committed by Pontasian National Army troops during the battle to
retake the three northern cities. With the approval of the U.N. Security Council, a U.N. monitoring
mission was dispatched to Pontasia to facilitate implementation of the 25 March Agreement.
11.Under the Truth Commission provisions of the 25 March Agreement, any member of the HLA
who publicly confesses his crimes against humanity before the Truth 12. On April 1, the Pontasian
Parliament enacted and President Bingham signed into law the 25 March Agreement
Implementation Act. Consistent with the 25 March Agreement, the Act contained provisions to
promote the civil, economic, and social rights of the Hadad population. It authorized the President
of Pontasia to appoint a nine-member Truth Commission headquartered in Quarth, with five Anot
members and four Hadad members possessing high moral character, impartiality, and integrity. It
also provided that decisions of the Truth Commission relating to the grant of a pardon are binding
and not subject to appeal to the courts of Pontasia.
13. On 17 April 2012, Womba Tulga traveled to Quarth and availed himself of the opportunity to
confess before the newly established Truth Commission. At the conclusion of Tulgas public
confession, which lasted three full days, the Truth Commission published its unanimous findings
that (a) Tulgas statement was sufficiently detailed, comprehensive, and truthful, (b) his confessed
acts constituted war crimes and crimes against humanity related to large-scale recruitment and use
of child soldiers and to widespread acts of forced marriage, and (c) Tulga had expressed sincere
remorse and contrition for his acts, especially regarding the abduction and mistreatment of Anot
boys and girls by soldiers under his command. The Truth Commission therefore certified Tulga for
a pardon conditioned on one year of public service, and proclaimed that he shall never be permitted
to hold public office or serve in the military in Pontasia. Following Womba Tulgas example,
during the next five months, most of the other HLA members turned over their arms to the United
Nations Monitoring Mission, released their bush wives, and traveled to Quarth to confess their
crimes before the Truth Commission.
14. On 30 March 2012, the Kingdom of Edom referred the situation of HLA atrocities in Edom
since 1 January 2012 (the Edom situation) to the ICC. After a preliminary examination, the ICC
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Prosecutor decided on 25 April to initiate an investigation into the Edom Situation. At the request of
the ICC Prosecutor, and based on the March 2012 Report of the UN High Commissioner for Human
Rights and the April 2012 Report of the Pontasia Truth Commission, on 30 May 2012 this Pre-Trial
Chamber issued an arrest warrant for Womba Tulga, finding that there were reasonable grounds to
believe that he is criminally responsible under Article 25(3)(b) and Article 28 of the ICC Statute for
acts constituting crimes against humanity committed in the territory of Edom, namely (1) the crime
of sexual slavery under Article 7(1)(g), and (2) the crime of forced marriage under Article 7(1)(k)
of the Statute.
15. Shortly thereafter, on 7 June 2012, Womba Tulga made a voluntarily appearance before the ICC
to contest the ICCs jurisdiction. Tulga promised to return to the ICC if required for future
proceedings. On 1 August 2012, representatives of the ICC Office of the Prosecutor, the Legal
Representative for Victims (the abducted Anot boys and girls), and Counsel for Womba Tulga
submitted briefs and made oral presentations before this Pre-Trial Chamber. After duly considering
these submissions, the Chamber hereby makes the following findings and conclusions:
16. First, the Chamber agrees with the Defense that forced marriage is not a separate cognizable
crime against humanity under Article 7(1)(k) of the ICC Statute, and therefore dismisses that count,
while upholding the count of sexual slavery under Article 7(1)(g) of the Statute.
17. Second, the Chamber finds without merit the Defense argument that the alleged acts that
occurred in the territory of Edom in January and February 2012 may not serve as a basis of
jurisdiction for Defendants alleged crimes against humanity under Article 12(2)(a) and Article
14(1) of the ICC Statute.
18. Third, the Chamber finds that the proceedings against Womba Tulga before Pontasias Truth
and Reconciliation Commission do not render the case inadmissible under Articles 17 and 20 of the
ICC Statute. For these reasons, the Chamber hereby:
1. Determines that the case falls within the jurisdiction of the Court and is admissible.
2. Orders the Registrar to notify the parties of this decision.
Dated 15 September 2012
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TEAM
COUNSEL FOR THE PROSECUTION MEMORIAL
ICLN INTERNATIONAL CRIMINAL COURT
MOOT COMPETITION
20 FEBRUARY 2013
WORD COUNT:
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APPEALS CHAMBER
SITUATION IN EDOM
THE PROSECUTOR V. WOMBA TULGA
COUNSEL FOR THE PROSECUTION MEMORIAL
AUTHOR: LAURA MAZUR
ICLN ICC Trial Competition 2013
TEAM
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LIST OF ABBREVIATIONS
Article Article of the ICC Rome Statute
Commission Truth and Reconciliation Commission in Pontasia
Edom Kingdom of Edom
HLA Hadad Liberation Army
i.a. inter alia
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for former Yugoslavia
Para. Paragraph
PNA Pontasian National Army
Pontasia Republic of Pontasia
Statute Rome Statute of the International Criminal Court
UN United Nations
UNHCHR United Nations High Commissioner for Human Rights
UNSC United Nations Security Council
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INDEX OF AUTHORITIES
I. ARTICLES
Boelart-Suominen S., Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is
Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?,
Journal of Conflict and Security Law, Vol. 5/1, 2000.
Laakso J., In Pursuit of Truth, Justice and Reconciliation: The Truth Commissions of East Timor
and South Africa, Social Alternatives Vol. 22 No.2, Second Quarter, 2003.
Minov M., Between Vengeance and Forgiveness: South Africas Truth and Reconciliation
Commission, Negotiation Journal, October 1998.
OKeefe R., The Grave Breaches Regime and Universal Jurisdiction, Journal of International
Criminal Justice, Vol. 7, No. 4, September 2009.
OKeefe R., Universal Jurisdiction: Clarifying the Basic Concept, Journal of International Criminal
Justice, Vol. 2, Issue 3, 2004.
Philippe X., The Principles of Universal Jurisdiction and Complementarity: How do the Two
Principles Intermesh?, IRRC, Vol. 88, No. 862, June 2006.
Strapatsas N., Jurisdiction and the International Criminal Court, Manitoba Law Journal, Vol. 29/2,
2002.
Van der Vyver D., Universal Jurisdiction In International Criminal Law, South African Yearbook
of International Law, Vol. 24, 1999.
Vora J., Vora E., The Effectiveness of South Africas Truth and Reconciliation Commission:
Perceptions of Xhosa, Afrikaner, and English South Africans, Journal of Black Studies, Vol. 34, No.
3, January 2004.
II. BOOKS AND TREATISES

M. Freeman, Truth Commissions and Procedural Fairness, Cambridge 2006.
III. INTERNATIONAL JUDICIAL DECISIONS
ICC
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Situation in the Republic of Kenya, Case No ICC-01/09
ICJ
ICTR
Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T.
Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I.
Prosecutor v. Francois Karera, Case No. ICTR-01-74-T.
Prosecutor v. Mikaeli Muhimana, Case No. ICTR- 95-1B-T.
Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-T.
Prosecutor v. Thoneste Bagosora et al, Case No. ICTR-98-41-T.
ICTY
Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A.
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-
Prosecutor v. Milan Martic, Case No. IT-95-11-R61.
23-T & Case No. IT-96-23/1-T.
IV. OTHER AUTHORITIES

Austrian Criminal Code of January 23, 1974, BGBl. Nr. 60/1974.
Decision of the Spanish Audencia nacional of March 4, 1999 in Fidel Castro.
Decision of the Spanish Audencia nacional of September 24, 1999 in Pinochet.
Decision of the Spanish Audiencia nacional of November 4, 1998 in don Alfonso Francisco
Scilingo.
Decision of the Spanish Constitutional Court of February, 10 1997 in the Panamian Ship.
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Elements of Crime, Report of the UN Preparatory Commission for the International Criminal Court,
2 November 2000.
German Criminal Code of November 13, 1998, Federal Law Gazette [Bundesgesetzblatt] I p. 3322.
Investigation in Darfur, Office of the Prosecutor, press release, case: ICC-OTP-0606-104.
Judgment of February 21, 2001 by the German Supreme Court (Bundesgerichtshof) in Sokolovi (3
StR 372/00).
Office of the Prosecutor, press release, case: ICC-OTP-0606-104.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-
General, Geneva, 25 January 2005, www.un.org/News/dh/sudan/com_inq_darfur.pdf, retrieved
13.02.13.
Spain Organic Law 6/1985 of July 1, 1985 on the Judicial Power, WIPO Lex No. ES059.
Swiss Military Criminal Code of June 13, 1927.
V. INTERNATIONAL TREATIES AND UNITED NATIONS DOCUMENTS

1 UNTS XVI Charter of the United Nations (entered into force 24 October
1945)
1125 UNTS 3 Protocol Additional to the Geneva Conventions of 12 August

1949, and relating to the Protection of Victims of International
Armed Conflicts Protocol I (adopted 8 June 1977, entered
into force 7 December 1979)
1125 UNTS 609 Protocol Additional to the Geneva Conventions of 12 August

1949, and relating to the Protection of Victims of Non-
International Armed Conflicts Protocol II (adopted 8 June
1977, entered into force 7 December 1978)
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1155 UNTS 331 Vienna Convention on the Law of Treaties (adopted on 23
May 1969, entered into force 27 January 1980)
1342 UNTS 171 Protocol on Prohibitions or Restrictions on the Use of

Incendiary Weapons Protocol III (adopted 8 June 1977, 2
December 1983)
1557 UNTS 3 Convention on the Rights of the Child (adopted on 20

November 1989, entered into force 2 September 1990)
2171 UNTS 227 Optional Protocol to the Convention on the Rights of the Child
on the Sale of Children, Child Prostitution and Child
Pornography (adopted 25 May 2000, entered into force 18
January 2002).
2173 UNTS 222 Optional Protocol to the Convention on the Rights of the Child
on the Involvement of Children in Armed Conflict (adopted 25
May 2000, entered into force 12 February 2002)
2187 UNTS 90 Rome Statute (adopted on 17 July 1998, entered into force 1
July 2002)
266 UNTS 3 The Supplementary Convention on the Abolition of Slavery,

the Slave Trade, and Institutions and Practices Similar to
Slavery (adopted on 30 April 1956, entered into force 1957)
75 UNTS 135 Geneva Convention Relative to the Treatment of Prisoners of

War Third Geneva Convention (adopted on 12 August 1949,
entered into force 21 October 1950)
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75 UNTS 287 Geneva Convention Relative to the Protection of Civilian

Persons in Time of War Fourth Geneva Convention (adopted
on 12 August 1949, entered into force 21 October 1950)
75 UNTS 31 Geneva Convention for the Amelioration of the Condition of

the Wounded and Sick in Armed Forces in the Field First
Geneva Convention (adopted on 12 August 1949, entered into
force 21 October 1950)
75 UNTS 85 Geneva Convention for the Amelioration of the Condition of

Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea Second Geneva Convention (adopted on 12 August
1949, entered into force 21 October 1950)
999 UNTS 171 International Covenant on Civil and Political Rights (adopted
on 16 December 1966, entered into force 23 March 1976)
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STATEMENT OF FACTS
FACTUAL BACKGROUND
1. Pontasia and Edom are neighbouring States, adjacent on the south coast of the Emerald Sea.
Edom is a State-Party to the Statute from 2005 whereas Pontasia is not party to the ICC.
Both countries are parties to the UN Charter2, the 1949 Geneva Conventions3 and the
Additional Protocols thereto of 19774, the International Covenant on Civil and Political
Rights5 and the Vienna Convention on the Law of Treaties 6. Pontasia and Edom do not have
a bilateral extradition treaty.7
2. The population of Pontasia consists of two ethnic groups: the Anots (80 percent), and the
Hadads (20 percent). Both groups share similar religious beliefs and customs, including the
widespread practice of arranged marriage where two sets of parents select their childrens
spouses.
3. In October 2011, a rebel group of about 100,000 Hadads of Pontasian nationality, which
called itself the HLA, under the command of Womba Tulga, launched a series of
coordinated attacks against several major Pontasian cities with the object of forming an
independent Hadad-controlled State.8 After weeks of intense fighting, PNA gained
advantage, resulting in Womba Tulga ordering the troops to seize about ten thousand Anot
children from age of 10 to 15 and conscript them into HLA. 9
4. The Anot girls and teenage women were abducted and forcibly taken as wives. By
psychological manipulations of their feelings, the husband openly staked his claim over
the wife. They were expected to carry out all the duties of a wife household chores, food
preparation, child rearing, farming, and sexual obedience. The penalty for not fulfilling these
tasks was severe beating, sexual abuse, physical batter during pregnancies, psychological
terrorism, and even death.
5. In January and February 2012, several hundred of the Anot bush wives escaped from their
HLA husbands to Edom. With Womba Tulgas written approval, the HLA (including the
recently conscripted Anot juvenile soldiers) committed dozens of armed raids into Edom to
re-acquire the escaped bush wives. By the end of February, most have been returned to
their HLA husbands. 10With the assistance of a UN mediation team, the President of
Pontasia, and HLA leader Womba Tulga met to sign on 25 March 2012 a two side
2 United Nations Charter.

3First Geneva Convention; Second Geneva Convention; Third Geneva Convention; Fourth Geneva Convention.
4 Protocol I; Protocol II; Protocol III.
5 International Covenant on Civil and Political Rights.
6 Vienna Convention on the Law of Treaties.
7 Ibidem, para. 1.
8 Ibidem, para. 5.
9 Ibidem, para. 6.
10 Ibidem, para. 8.
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Agreement, which was approved a week later by the Pontasian Parliament and the Council
of HLA Rebel Leaders. The Agreement provided for: (1) the immediate cessation of
hostilities, (2) the phased disarmament and eventual disbanding of the HLA, (3) the
immediate release of all abducted children and termination of forced marriages; (4) the
enactment of domestic legislation to promote the civil, economic, and social rights of the
Hadad population of Pontasia; and (5) the expedited establishment of the Commission
modelled on that of the South Africa Truth and Reconciliation Commission, which would
hold public hearings, and publish findings regarding perpetrators.11
6. The President of Pontasia appointed a nine-member Commission headquartered in Quarth,
with five Anot members and four Hadad members possessing high moral character,
impartiality, and integrity. It also provided that decisions of the Commission relating to the
grant of a pardon are binding and not subject to appeal to the courts of Pontasia. 12
7. Under the provisions of the 25 March Agreement, any member of the HLA who publicly
confesses his crimes against humanity before the Commission and does community service
for one year, shall be granted a full pardon for acts related to the conflict. Such persons
shall, however, be permanently prohibited from holding public office or serving in the
military. Anyone who does not avail themselves of the opportunity to confess within six
months of the signing of the Peace Agreement is to be subjected to prosecution with a
penalty ranging from 10 years to capital punishment.13
8. On 17 April 2012, Womba Tulga confessed his crimes before the Commission. The
Commission unanimously found that (a) Tulgas statement was sufficiently detailed,
comprehensive, and truthful, (b) his confessed acts constituted war crimes and crimes
against humanity related to large-scale recruitment and use of child soldiers and to
widespread acts of forced marriage, and (c) Tulga had expressed sincere remorse and
contrition for his acts, especially regarding the abduction and mistreatment of Anot boys and
girls by soldiers under his command. The Commission therefore certified Womba Tulga for
a pardon conditioned on one year of public service, and proclaimed that he shall never be
permitted to hold public office or serve in the military in Pontasia. 14
9. During the next five months, most of the other HLA members turned over their arms to the
UN Monitoring Mission, released their bush wives, and travelled to Quarth to confess
their crimes before the Commission. 15
10. On 30 March 2012, Edom referred the situation of HLA atrocities in Edom since 1 January
2012 (the Edom situation) to the ICC.16
11 Ibidem, para. 10.

21 | P a g e
PROCEDURAL BACKGROUND
1) March 2012 Report of the UNHCHR on the phenomenon called bush wife or rebel
wife.
2) 30 March 2012 Edom referred the situation of HLA atrocities in Edom to the ICC.
3) 25 April 2012 The ICC Prosecutor announced his intention to start an investigation into
the Edom situation.
4) 30 May 2012 The Pre-trial Chamber issued an arrest warrant for Womba Tulga, based on
the submitted application of the Prosecutor, finding that there were reasonable grounds to
believe that he is criminally responsible under Article 25(3)(b) and Article 28 for acts
constituting crimes against humanity committed in the territory of Edom, namely (1) the
crime of sexual slavery under Article 7(1)(g), and (2) the crime of forced marriage under
Article 7(1)(k).
5) 7 June 2012 Womba Tulga made a voluntarily appearance before the ICC.
6) 1 August 2012 The Prosecutor, the Legal Representative for Victims, and Counsel for
Womba Tulga submitted briefs and made oral presentations before the Pre-Trial Chamber.
7) 15 September 2012 The Pre-Trial Chamber found and concluded that forced marriage is
not a separate cognizable crime against humanity under Article 7(1)(k), upheld the count of
sexual slavery under Article 7(1)(g), found that the alleged acts may not serve as a basis of
jurisdiction for Womba Tulgas alleged crimes against humanity under Article 12(2)(a) and
Article 14(1), found that the proceedings against Womba Tulga before the Commission do
not render the case inadmissible under Articles 17 and 20.

22 | P a g e
ISSUES
The following issues are to be addressed in the memorial:
Article 7(1)(k);
b. Whether the alleged acts that occurred in the territory of Edom are sufficient to serve as
a basis of jurisdiction for alleged crimes against humanity in Pontasia under Article
12(2)(a) and Article 14(1);
c. Whether the case is inadmissible because the proceedings of Pontasias Truth and
Reconciliation Commission preclude trial before the ICC under Article 17 and 20.
23 | P a g e
SUMMARY OF ARGUMENTS
WOMBA TULGA SHALL BE CHARGED FOR ACTS THAT OCCURRED IN THE
TERRITORY OF EDOM.
The ICC shall exercise its jurisdiction under Womba Tulga for crimes against humanity that are
alleged to have been committed on the territory of Edom. It is in the conformity with Article
12(2)(a) and Article 14(1) due to the fact that (a) the situation was referred to the Prosecutor by
Edom with a request for the investigation and (b) this state is a State-Party to the ICC. That the
accused is a national of Pontasia which is neither a State-Party to the ICC nor accepted its
jurisdiction is of no relevance in the present case. Alternatively, Womba Tulga shall be tried by the
ICC on the basis of universal criminal jurisdiction as the acts on the territory of Edom were of the
enormous gravity.
THE PROCEEDINGS BEFORE THE COMMISSION DO NOT RENDER THE CASE

INADMISSIBLE.
The case of Womba Tulga is admissible before the ICC. As the Commission cannot be regarded as
a judicial body, there is no res iudicata recognized in the case at hand. Also the principle of
complementarity is not to be applied in regards the Article 17 does not influence on current
proceedings before the ICC.
CRIME OF FORCED MARRIAGE IS A COGNIZABLE CRIME AGAINST HUMANITY

UNDER ARTICLE 7(1)(K).
Crime of forced marriage constitutes a crime against humanity of other inhumane acts as: (a) there
was a great suffering and serious injury to mental and physical health of abducted woman, (b) a
character of committed acts was similar to the acts from Article 7(1), (c) attack was directed against
a civilian population as a part of widespread or systematic attack, (d) Womba Tulgas was aware of
the factual circumstances that established the character of the acts and (e) he knew that the conduct
was part of a widespread or systematic attack directed against a civilian population.
24 | P a g e
WRITTEN ARGUMENTS
I. WOMBA TULGA SHALL BE CHARGED FOR ACTS THAT OCCURRED IN THE
TERRITORY OF EDOM.
1. The ICC shall exercise its jurisdiction under Womba Tulga for crimes against humanity that
have been committed on the territory of Edom as the situation was referred to the Prosecutor by
Edom and this state is a Party to the ICC (A). Alternatively, the accused shall be tried by the
ICC on the basis of universal criminal jurisdiction (B).
20 Article 12(2)(a) and Article 14(1) are sufficient basis for the jurisdiction for the
acts committed in the territory of Edom.
2012 (the Edom situation) to the ICC. After a preliminary examination, the ICC Prosecutor
decided on 25 April to initiate an investigation into the Edom Situation. At the request of the
ICC Prosecutor, and based on the March 2012 Report of the UN High Commissioner for
Human Rights and the April 2012 Report of the Pontasia Commission, on 30 May 2012 the Pre-
Trial Chamber issued an arrest warrant for Womba Tulga, finding that there were reasonable
grounds to believe that he is criminally responsible under Article 25(3)(b) and Article 28 for
acts constituting crimes against humanity committed in the territory of Edom, namely the crime
of sexual slavery under Article 7(1)(g), and the crime of forced marriage under Article 7(1)(k).
3. Womba Tulga shall be charged with the commission for the crimes that took place in the
territory of Edom, in case it would be established that his acts constitute crimes against
humanity pursuant to the Statute (see Part III). As Edom is a State-Party to the ICC17 and the
situation was referred to the Prosecutor by this state18, the premises from Article 12(2)(a) and
Article 14(1) are met. That the accused is a national of Pontasia which is neither a State-Party to
the ICC nor accepted its jurisdiction is of no relevance in the present case.
4. Pursuant to Article 12(2)(a), the ICC may exercise its jurisdiction if one or more of the
following States, which are Parties to this Statute or have accepted the jurisdiction of the ICC, is
the State on the territory of which the conduct in question occurred.
5. The jurisdiction of the ICC is to be divided into the following categories: jurisdiction ratione
materiae (referring to the crimes that are to be tried before the ICC), jurisdiction ratione
17 Ibidem, para. 1.
25 | P a g e
personae (persons that can be charged for the crimes falling under the competence of the ICC),
jurisdiction ratione temporis (crimes committed within the particular period of time) and ratione
loci (on particular territory). The crimes which can be tried accurrently before the ICC are
genocide, crimes against humanity, and war crimes. With respect to the jurisdiction rationae
personae, the Statute provides that the ICC only has jurisdiction over natural persons (Article
25(1)) at least eighteen years of age at the time the crime was allegedly committed (Article 26).
There is no immunity under the Statute due to the official rank of the accused person. Finally
insofar as the jurisdiction rationae temporis is concerned the ICC has jurisdiction only for
crimes committed after the entry into force of the Statute on 1 July 2002. Furthermore, as for the
states which become Parties after that date, the competence of the ICC only encompasses the
crimes committed after the Statute comes into force for that State. Nevertheless, as it would be
elaborated further, it suffices that either the State where the crime was committed or that the
nationality of the author of the crime be party to the Statute for the competence of the ICC to be
acknowledged.
6. The jurisdiction of the ICC may be exercised, in accordance with Article 13(a), if the situation
in which one or more of the crimes referred to in Article 5 appear to have been committed, is
referred to the Prosecutor by a State Party in accordance with Article 14, which states in
paragraph 1 that a State Party may refer to the Prosecutor a situation () requesting the
Prosecutor to investigate the situation for the purpose of determining whether one or more
specific persons should be charged with the commission of such crimes.
7. In the case at hand, both preconditions to exercise the jurisdiction by the ICC are met: Edom is a
State-Party to the ICC and the situation was referred to the Prosecutor by that state.
8. The committed crimes of the HLA soldiers have been committed under the command of
Womba Tulga during the armed raids into Edom to re-acquire bush wives as, at the beginning
of 2012, several hundreds of the Anot bush wives escaped from their HLA husbands to
Edom19. Therefore, it is without any doubt that those acts were to take place on the territory of
that state. It is with no relevance, therefore, that Womba Tulga is a national of Pontasia 20, and
Pontasia had not accepted the jurisdiction of the ICC 21. The mere fact that only Pontasian girls
and teenaged women were taken in these raids and no Edom nationals or property were injured
is not sufficient for the Defence to state that the committed crimes did not take place on the
territory of the State.
9. Second precondition which is necessary to be fulfilled herein in order to determine the ICC
jurisdiction over particular crimes is correct referral of the situation to the Prosecutor by a State
19 Ibidem, para. 8.
20 Ibidem, para. 5.
21 Ibidem, para. 1.
26 | P a g e
Party as per Article 13(a) and in accordance with Article 14. It is to be noted that there are also
other possibilities to commence the proceedings before the ICC on the basis of the Article 13,
namely the referral to the Prosecution by the UNSC on the basis of Chapter VII of the UN
Charter (Article 13(b)) or the initiation of the investigation by the Prosecutor (Article 13(c)).
10. Here, Edom referred the situation of HLA acts on the territory of Edom on 30 March 2012. On
25 April 2012, the Prosecutor announced his intention to start an investigation into the Edom
situation22. It is therefore the referral as regulated in Article 13(a) that was introduced by this
state.
11. In the result, as Edom is a State-Party to the ICC and the situation was referred to the Prosecutor
by this state in the conformity with the premises from Article 12(2)(a) and Article 14(1), the
requirements for the referral of the situation to the Prosecution are definitely met. Therefore, in
case the acts of the accused are affirmed to constitute crimes against humanity, he shall be
charged for the commission of the acts that took place in the territory of Edom.
B. Alternatively, the accused shall be tried by the ICC on the basis of universal
criminal jurisdiction.
12. In case the ICC rules that the acts that occurred in the territory of Edom are not sufficient to
serve as a basis of jurisdiction for crimes against humanity and the accused Womba Tulga shall
not be charged for acts that occurred in the territory in Edom, he shall be tried by the ICC on the
basis of universal criminal jurisdiction.
13. Womba Tulga, a Pontasian national, is accused to have committed the alleged crimes both on
the territory of Edom and Pontasia, as forced marriages were conducted in Pontasia, the HLA
under his command crossed the borders to Edom to re-acquire the wives23. As it is known,
Edom is a State-Party to the Statute from 2005 and Pontasia is not party to the ICC. Both
countries are parties to the UN Charter, Geneva Conventions 24 and Additional Protocols thereto,
the International Covenant on Civil and Political Rights25. States do not have a bilateral
extradition treaty26. The high level of formal acceptance of the mentioned international
agreements by Pontasia suggests substantial progress towards universal recognition of human
rights norms.

23 Ibidem, para. 8.
24 First Geneva Convention; Second Geneva Convention; Third Geneva Convention; Fourth Geneva Convention.
26 Case, Pre-Trial ICC Chamber, para. 1.
27 | P a g e
14. The fact that Pontasia is neither a Party to the Statute nor it accepted the ICCs jurisdiction is
nevertheless not an obstacle for the examination of the situation by the ICC in case it would be
decided that the premises from Article 12(2)(a) and Article 14(1), the requirements for the
referral of the situation to the Prosecution are not met. Womba Tulga shall be charged by the
ICC on the basis of the universal jurisdiction concept.
15. According to the principle of the universal jurisdiction, because of the gravity and serious
character of particular crimes, it is within the interest of the whole international community to
prosecute the perpetrators of the atrocities of the most severe character. The term universal
jurisdiction refers to the competence of a state under international law to criminalize and,
should the occasion arise, prosecute conduct when no other internationally recognized
prescriptive link exists at the time of the alleged commission of the offence27.
16. Article 49 of the First Geneva Convention28, Article 50 of the Second 29, Article 129 of the
Third30 and Article 146 of the Fourth Geneva Convention31 oblige the High Contracting Parties
to enact any legislation necessary to provide effective penal sanctions for persons committing,
or ordering to be committed, any of the grave breaches of [the] Convention. Each goes on
identically to provide as follows: Each High Contracting Party shall be under the obligation to
(...) bring such persons, regardless of their nationality, before its own courts.
17. The text explicitly provides that the suspects nationality is irrelevant. No mention is made of
the place of alleged commission of the offence. However, that the place of commission is also
irrelevant can be implied. Finally, the express language of the above common provision makes
evident that the obligation to bring those suspected of grave breaches before the courts applies
to each High Contracting Party, and not just to those High Contracting Parties which are or were
parties to the armed conflict in which the offences are alleged to have occurred32.
18. If the obligation to prosecute parties to the armed conflict exists on the basis of universal
criminal jurisdiction, than the same obligation should be inferred and implemented in case of
commission of crimes in the course of international disputes and tensions, as in our situation.
19. Therefore, the obligation imposed by the grave breaches provisions is not dependent on any
prescriptive nexus of nationality, territoriality, passive personality or the protective principle.
That is, according to their ordinary meaning, the grave breaches provisions posit an obligation
to exercise criminal jurisdiction over persons alleged to have committed, or to have ordered the
27 OKeefe R., The Grave Breaches Regime and Universal Jurisdiction, pp. 811-832.
28 First Geneva Convention.
29 Second Geneva Convention.
30 Third Geneva Convention.
31 Fourth Geneva Convention.
32 OKeefe R., The Grave Breaches Regime and Universal Jurisdiction, pp. 811-832.
28 | P a g e
commission of grave breaches of the relevant Convention in the absence, where necessary, of
any other accepted ground of jurisdiction to prescribe33.
20. It seems indisputable that a general rule of international law does exist, authorizing States to
assert universal jurisdiction over war crimes, crimes against humanity and genocide. The
existence of this rule is stated and proved by the convergence of States pronouncements,
national pieces of legislation34, as well as by case law35 and doctrine36.
21. However, the customary rule in question, construed in the light of general principles currently
prevailing in the international community, the existing doctrine arguably makes the exercise of
universal jurisdiction subject to two major conditions. First, the person suspected or accused of
an international crime must be present on the territory of the prosecuting State. Second, before
initiating criminal proceedings this State should request the territorial State (namely, the State
where the crime has allegedly been perpetrated) or the State of active nationality (that is, the
State of which the person suspected or indicted is a national) whether it is willing to institute
proceedings against that person and hence prepared to request his or her extradition. Only if the
State or States in question refuse to seek the extradition, or are patently unable or unwilling to
bring the person to justice, may the State on whose territory the person is present initiate
proceedings against him or her37.
22. If willing to adopt these requirements formed in doctrine to our case, it is vital to mention that
Womba Tulga made a voluntary appearance before the ICC to contest the ICCs jurisdiction,
and promised to return to the ICC if required for future proceedings 38. This situation fulfils the
first requirement provided by the mentioned above Report of the International Commission of
Inquiry on Darfur. In the Edom situation, there would be no need to apply the second condition
of the abovementioned act, for as proven in Part III, Pontasian courts and other judicial
authorities have clearly shown that they are unable or unwilling to exercise jurisdiction over the
crimes perpetrated in Pontasia and Edom by Womba Tulga, as there were no judicial
33 Ibidem, pp. 811-832.

34 Spain Organic Law 6/1985 of July 1, 1985 on the Judicial Power, art. 23; Austrian Criminal Code of January 23,
1974, art. 65.1.2; Swiss Military Criminal Code of June 13, 1927, art. 108, 109; German Criminal Code of November
13, 1998, art. 6.9.
35 Decision of the Spanish Constitutional Court of February, 10 1997 in the Panamian Ship case; Decision of the
Spanish Audiencia nacional of November 4, 1998 in don Alfonso Francisco Scilingo; Decision of the Spanish Audencia
nacional of September 24, 1999 in Pinochet; Decision of the Spanish Audencia nacional of March 4, 1999 in Fidel
Castro; Judgment of February 21, 2001 by the German Supreme Court (Bundesgerichtshof) in Sokolovi.
36 OKeefe R., The Grave Breaches Regime and Universal Jurisdiction, pp. 811-832; OKeefe R., Universal
Jurisdiction: Clarifying the Basic Concept, pp. 735-760; Boelart-Suominen S., Grave Breaches, Universal Jurisdiction
and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed
Conflicts?, pp. 63-103; Philippe X., The Principles of Universal Jurisdiction and Complementarity: How do the Two
Principles Intermesh?, pp. 375-398; Van der Vyver D., Universal Jurisdiction In International Criminal Law, South,
pp. 107-132; Strapatsas N., Jurisdiction and the International Criminal Court, pp. 132.
37 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, par. 613-614.
38 Case, Pre-Trial ICC Chamber, para.15.
29 | P a g e
proceedings commenced and the Commission is not a judicial body, so the ICC could initiate
proceedings against Womba Tulga.
30 | P a g e
20 THE PROCEEDINGS BEFORE THE COMMISSION DO NOT RENDER
THE CASE INADMISSIBLE BEFORE THE ICC.
23. The case of Womba Tulga is admissible before the ICC. As the Commission should not be
regarded as a judicial body, there is no res iudicata recognized in the case at hand (A). Also the
principle of complementarity is not to be applied, in regards Article 17 does not influence on the
proceedings before the ICC (B).
A. The non-judicial character of the Commission is the ground for the

admissibility of Womba Tulgas case before the ICC.
24. As a result of the fact that the Commission cannot be regarded as a judicial body, there is no res
iudicata in the case at hand. Therefore, the ICC may try Womba Tulga for the acts committed
during the internal conflict on the territory of Pontasia and Edom (as proven in Part I). The
proceedings before the Commission do not influence the possibility of examination of the
accused.
25. The Prosecutor acknowledges that truth commissions are popular bodies aimed at the
reconciliation after internal armed conflicts. It is estimated that between 1974 and 1994, for
instance, at least 15 (or even 3039) truth commissions were established in Argentina, Bolivia,
Chile, Uruguay, El Salvador, Rwanda, Ethiopia, Chad, Zimbabwe, Germany, the Philippines,
and others40. They are claimed to operate impartially and in good faith, independently of
political forces, and with sufficient resources and free access to information for investigation as
it sees appropriate41.
26. What is to be invoked as the most characteristic features of those types of bodies is that: the
commissions are examining the acts from the past, the scope of examined acts (usually massive
ones) is limited to particular period, those are temporary bodies which existence is usually
finalized by the submission of a report, usually approved by the state42.
27. The Prosecutor states that such commissions of truth and reconciliation are not judicial bodies
and they have no judicial competences. They supplement the actions of the courts and tribunals,
39 M. Freeman, Truth Commisssions and Procedural Fairness, pp. 12-13.

40 J. Vora, E. Vora, The Effectiveness of South Africa's Truth and Reconciliation Commission: Perceptions of Xhosa,
Afrikaner, and English South Africans, p. 303.
41 J. Laakso, In Pursuit of Truth, Justice and Reconciliation: The Truth Commissions of East Timor and South Africa,
p. 50.
31 | P a g e
contributing to national reconciliation and the enforcement of democratic standards. It is not
denied that such commissions can play a powerful and meaningful role in attempting to end
impunity and recognizing the suffering of victims43, which, nevertheless, does not grant them
automatically competences analogical to those of the national courts.
28. The basis for the establishment of the Commission in the present case was the 25 March 2012
Agreement, concluded between the President of Pontasia and Womba Tulga 44. It provided for,
i. a., the establishment of the Commission, 32ehavio on that of the South Africa, which would
hold public hearings and publish findings regarding perpetrators. The focus of the Commission
was on the crimes against humanity (defined the same as in the Statute) and war crimes in
internal armed conflict 45. Under the provisions of the 25 March Agreement, any member of the
HLA who publicly confesses his crimes against humanity before the Commission and does
community service for one year, shall be granted a full pardon for acts related to the conflict 46.
Anyone who does not avail themselves of the opportunity to confess within six months of the
signing of the Peace Agreement was to be subjected to prosecution with a penalty ranging from
10 years to capital punishment 47.
29. Womba Tulga admitted his crimes before the Commission, in the result thereof the body
established that his confessed acts constituted war crimes and crimes against humanity related to
large-scale recruitment and use of child soldiers and to widespread acts of forced marriage 48 and
that Tulga had expressed sincere remorse and contrition for his acts49. He was certified for a
pardon conditioned on one year of public service 50.
30. The Prosecution notes the situation in the present case is similar to the one from South Africa.
There, the perpetrators were required to make a full public confession of their misdeeds, and
they could escape the threat of prosecution only if they were prepared to reveal the full extent of
their criminal activities. Initially, there was a 12-month time limit established, and once the
deadline passed, perpetrators faced the likelihood of court proceedings 51. It is clearly
recognizable that in South Africa, the commission was not a judicial body as it constituted an
alternative to national courts.
p. 48.
46Ibidem, para. 11.
50Ibidem, para. 13.
p. 49.
32 | P a g e
31. Here, the Commission located in Quarth52, may be rather qualified as a quasi-judicial body,
evaluating the stories through independent investigations, and deciding whether to accept the
application for amnesty53. According to the opinion of the doctrine, criminal prosecution is the
most adequate response to atrocities, and truth commissions should be used only as an
alternative when such prosecutions are not possible54.
32. Subsequently, as the Commission cannot be regarded as a judicial body, there is no res iudicata
recognized in the case at hand. The principle that nobody is to be tried twice for one crime
seems to be the rudimentary right of the arbitral proceedings.
33. The rule ne bis in idem is reflected in Article 20(2), which states that no person shall be tried
by another court for a crime referred to in article 5 for which that person has already been
convicted or acquitted by the Court. Here, as the hearings of Womba Tulga were not conducted
by a court as a part of a judicial trial, there is no res iudicata to be recognized. Prerequisites
from Article 20(3) are not applicable. What is more, unanimous findings 55 of the Commission
are not equal to the judicial judgment and cannot be granted equal power. Therefore, there are
no impediments for the proceedings against the accused before the ICC.
B. The principle of complementarity does not limit the ICCs jurisdiction in the
case of Womba Tulga.
34. Article 17 does not influence on the proceedings before the ICC and the principle of
complementarity is not to be applied in the present case.
35. It is to be highlighted that, according to Article 1, the jurisdiction of ICC shall be
complementary to national criminal jurisdictions. This fundamental principle is governing ICC
on the assessment of the admissibility of the case. The principle of complementarity governs the
relationship between ICC and national jurisdictions. In substance, the system established by the
Statute is that of successive jurisdictions, first of national authorities, and then of ICC, which
implies a primacy recognized to domestic jurisdictions. Therefore, only if there were no judicial
proceedings before national court conducted, the accused may be tried by the ICC.
36. Before the commencement of the investigation, there are following factors to be determined by
the Prosecutor: the ICCs jurisdiction factor, the admissibility test and the interest of justice 56. It

53 M. Minov, Between Vengeance and Forgiveness: South Africa's Truth and Reconciliation Commission, p.324.
54 Ibidem, p.324.
56 Office of the Prosecutor, press release, case: ICC-OTP-0606-104.
33 | P a g e
was already proven in Part I, that the ICC has jurisdiction on the case on the basis of the acts
that occurred on both territories of Pontasia and Edom.
37. Article 17(1)(b) states that a case is inadmissible if the case has been investigated by a State
which has jurisdiction over it and the State has decided not to prosecute the person concerned,
unless the decision resulted from the unwillingness or inability of the State genuinely to
prosecute.
38. Here, regardless of the issue of the jurisdiction, the Prosecutors opinion clarifies that the case
was not investigated by the State. The reason for that submission is the character of the
Commission, which in no means may be defined as judicial one. In the consequence, there are
no grounds to deliberate on the matter of the complementary character of the ICC as there was
no will of Pontasia to try the accused, as the Commission does not possess the features of a
judicial body.
34 | P a g e
20 CRIME OF FORCED MARRIAGE IS A COGNIZABLE CRIME
AGAINST HUMANITY UNDER ARTICLE 7(1)(K).
39. Crime of forced marriage constitutes a crime against humanity of other inhumane acts, as per
Article 7(1)(k). There are the prerequisites from the Elements of Crimes that are met: great
suffering, and serious injury to mental health of abducted woman (A), a character of committed
acts similar to the acts from Article 7(1) (B), Womba Tulga was aware of the factual
circumstances that established the character of the acts as an attack directed against a civilian
population as a part of widespread or systematic attack and (C) and he knew that the conduct
was part of a widespread or systematic attack directed against a civilian population (D) 57.
40. The crime of other inhumane acts encompasses acts which are not specifically listed as
crimes against humanity, but which are nevertheless of comparable nature, character, gravity
and seriousness to the enumerated acts58. Inhumane acts include any other acts committed by
the perpetrators, especially: sexual violence, forcible transfer of civilians, mutilation, beatings
and other types of severe bodily harm59.
41. The mens rea required for other inhumane acts is the intent to inflict serious bodily or mental
harm upon the victim and the knowledge that the act or omission is part of a widespread and
systematic attack60. There are also specific requirements according to the Elements of Crimes
for Article 7(1)(k) 61, to be met in order to assess an act as a crime against humanity of other
inhumane acts.
20 Acts towards bush wives caused great suffering, serious injury to body and
mental health of the abducted girls.
42. The acts committed as a phenomenon of bush wives practices caused great suffering and
serious injury to body and to as well mental health for young girls and women being subjected
to HLA soldiers actions.
43. It is to be noted that not only such actions may be considered in the light of the prerequisites for
the crime against humanity under Article 7(1)(k), but also the International Covenant on Civil
and Political Rights62 pronounces on the rights of women related to marriage. In Article 23(3)
57 Elements of Crime, p. 17.

58 Prosecutor v. Tharcisse Muvunyi, Case No ICTR-2000-55A-T, Judgment, Trial Chamber, 12 September 2006, para.
527.
60 Prosecutor v. Thoneste Bagosora et al, Case No. ICTR-98-41-T, Judgment, Trial Chamber, 18 December 2008,
para. 2218.
61 Elements of Crime, p. 17.
62 International Covenant on Civil and Political Rights
35 | P a g e
the Covenant protects the right of woman of marriageable age to marry and to found a family
with free and full consent.
44. In the case at hand, UNHCHR, alarmed by the reports on the widespread practice of abuse on
girls and teenage women, established a fact-finding mission and according to the report of
March 2012, the most devastating effect on women of the internal armed conflict in Pontasia
was the phenomenon called bush wife or rebel wife, who were constantly sexually abused,
physically battered during pregnancies, and psychologically terrorized by their husbands, who
thereby demonstrated their control over their wives63 from November 2011 to 17 April 2012.
45. Both groups, Anods and Hadads, share similar religious beliefs and customs, which include the
practice of arranged marriage where two sets of parents select their childrens spouses at an
early age64. However, in the given situation, the spouses have not been chosen by both set of
parents. The up-bringing of girls and teenage women in Pontasia reflected the aim of forming an
obligation to obey your parents and your husbands will.
46. The Prosecution finds reasonable grounds to state that the girls did not differ forced marriage
and ritual marriage, and this resulted in exposure to severe physical and mental pain. The HLA
soldiers had total control over them, and any act against their perpetrators, also called
husbands in order to psychologically avoid disobedience, could and in fact resulted in severe
pain and suffering, as the penalty was severe beating, sexual abuse, physical batter during
pregnancies, psychological terrorism, and even death65.
47. Therefore, as the referred acts caused great suffering and serious injury to body and to mental
health for young girls and women being subjected to HLA soldiers actions, they fulfil one of
the prerequisites for the crime against humanity under Article 7(1)(k).
20 The character of the acts of HLA was similar to other acts as referred in Article
7(1).
48. The acts committed by HLA were similar in its character to other acts referred in Article 7(1).
Especially, they can be compared to the crimes against humanity such as enslavement (B.1.)
and rape (B.2.).
B.1. HLAs acts are similar to the crime against humanity of the enslavement.

64Ibidem, para. 3.
65Ibidem. 7.
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49. Enslavement means, according to the Statute, the exercise of any or all of the powers
attaching to the right of ownership over a person, and includes the exercise of such power in the
course of trafficking persons, in particular women and children.
50. The taken from home by the HLA girls and teenage women were abducted and forcibly taken as
wives to demonstrate a rebels control over the woman. Girls taken by the HLA were wives of
the HLA soldiers66, which in fact meant slaves of the HLA. They exercised full ownership
rights over these girls. By calling a woman wife they openly staked their claim over the girls,
who was expected to carry out all the functions of a wife as household chores, maintenance,
food preparation, child rearing and farming, and show love and affection67. Having sexual
relations with another person would deem the wife unfaithful and the penalty was severe
beating or death68.
51. In the case at hand, the Prosecution finds that the evidence provides substantial grounds to
believe that the HLA soldiers were directly ordered to take revenge on civilians, considering the
words of Womba Tulga: weve lost this battle but the war goes on. We shall replenish the
ranks of our fallen comrades with Anot boys and girls69. These girls were taken away from
their families to become wives of the HLA as a form of punishment for the PNA for retaking the
three cities and mistreatment of captured members of HLA by PNA. The Prosecution would like
to stress that the Chamber in different cases already noted that reprisals against the civilian
population as such, or individual civilians, are prohibited in all circumstances, regardless of
the 37ehavior of the other party, since no circumstances would legitimize an attack against
civilians even if it were a response proportionate to a similar violation perpetrated by the other
party70.
52. The Prosecution would like to remind and underline the fact of the lack of consent of these
childrens legal guardians. Article 9 of the Convention on the Rights of the Child which
content as an act that had been ratified, accepted or acceded by 193 states is widely known
states that a child shall not be separated from his or her parents against their will, except when
competent authorities subject to judicial review determine, in accordance with applicable law
and procedures, that such separation is necessary for the best interests of the child 71. Womba
Tulga as a leader of a non-national army is neither a competent authority nor was subjected to
judicial review and certainly did not act in accordance with binding law. This forms a
66Ibidem, para. 7.
67Ibidem, para. 7.
68Ibidem, para. 7.
69Ibidem, para. 6.
70 Prosecutor v. Milan Martic, ICTY, Trial Chamber, "Decision", 8 March 1996, IT-95-11-R61, para. 15.
71 Convention on the Rights of the Child.
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conclusion that such separation was not in the best interest of the child and could not be pursued
without the consent of the childrens parents.
53. The HLA and Womba Tulga as their commander had physical and psychological control over
the girls and teenage women. The girls living with the HLA in the Pontasian national park,
which is a 30,000 square mile heavily forested area, had no realistic possibility to escape.
However, some managed to cross the border to Edom. Yet, as they were quickly retrieved,
barely a month time by their HLA husbands, it cannot be stated that there existed a
possibility to escape as ultimately they did not permanently break loose from confinement.
54. However, being held in capacity may not be sufficient, there must be another indication of
enslavement such as exploitation, forced labour, sex, prostitution or human trafficking 72. As
already stated above, the girls and teenage women were forced to marry the HLA soldiers,
abducted on daily basis, forced to labour and carry out all the functions of wife. The girls were
kept in the forests for about five to six months (from the capture in November 2011 and their
release after the April 2011 confession of Womba Tulga before the Commission). Although the
duration of the enslavement is not an element of the crime, it can serve as evidence that a person
was enslaved73.
55. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions
and Practices Similar To Slavery in its Article 6 states that the act of enslaving another person
() shall be a criminal offence () and persons convicted thereof shall be liable to
74
punishment . Also, the International Covenant on Civil and Political Rights, in Article 12
states in para. 1 that everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence, as also in para. 2
that everyone shall be free to leave any country, including his own75. As mentioned frequently
above, Pontasia as a Party-State to the International Covenant on Civil and Political Rights,
infringed these guaranteed rights, as the girls forced to marriage were not only able to freely
leave their country but also travel within Pontasia.
B.2. HLAs acts are similar to the crime against humanity of the rape.
56. Rape occurs when the perpetrator invades the body of a person by conduct resulting in
penetration, however slight, of any part of the body of the victim or of the perpetrator with a
72 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No IT-96-23-T & IT-96-23/1-T,
Judgment, Trial Chamber, 22 February 2001, para.542.
73 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No IT-96- 23-T & IT-96-23/1-T, para.
121, 356.
74 Supplementary Convention On The Abolition Of Slavery, the Slave Trade, and Institutions and Practices Similar To
Slavery
75 International Covenant on Civil and Political Rights
38 | P a g e
sexual organ, or of the anal or genital opening of the victim with any object or any other part of
the body76. The act of rape is done by threat of force or coercion, such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power, against such person or
another person, or by taking advantage of a coercive environment, or the invasion was
committed against a person incapable of giving genuine consent 77. There must be intent to
penetrate the victims body. Moreover, the knowledge and consciousness that the penetration is
done by force or threat of force is required.
57. These conditions were fulfilled by the HLA soldiers. They detained very young girls who were
still children and by psychological oppression (calling them wives and manoeuvring them
into obedience) and fear of violence (they were expected to show undying loyalty to their
husbands for their protection and reward him with love and affection) forced them to
perform sexual activities.
58. Additionally, Article 34 of the Convention on the rights of the child imposes on the states
parties the obligation to protect the child from all forms of sexual exploitation and sexual
abuse78. Although, only states that have ratified this convention are bound by it, the
Convention is build on varied legal systems and cultural traditions, and is a universally agreed
set of non-negotiable standards and obligations. These basic standards also called human
rights set minimum entitlements and freedoms that should be respected by governments. Girls
kept by the HLA army were raped and served as sexual slaves, fulfilling all the demands of their
perpetrators. This is the 39ehavior and most horrific crime that can be committed by an
individual could ever commit, especially bearing in mind the age of the victims (from 10 to 15
years old). Therefore, the commander of the HLA army, Womba Tulga is criminally responsible
for those cruel acts committed to significantly young victims.
59. What is of essence, as far as the factual state of the case at hand is concerned, is that there are
also Optional Protocols to the Convention on the Rights of the Child that were adopted by the
UN General Assembly on 25 May 2000. The first, the Optional Protocol on the Involvement of
Children in Armed Conflict 79 in Article 2 requires governments to ensure that children under the
age of eighteen are not recruited compulsorily into any armed forces, and in Article 4 calls on
governments to do everything feasible to ensure that members of their armed forces who are
under eighteen years of age do not take part in hostilities. The second, the Optional Protocol on
76 ICC Elements of Crimes, Art. 7(1)(g)-1(1).

77 Ibid., Art. 7(1)(g)-2(2).
78 Convention on the Rights of the Child.
79 The Optional Protocol on the Involvement of Children in Armed Conflict.
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the Sale of Children, Child Prostitution and Child Pornography80 in Article 1 requires states to
prohibit among other child prostitution.
C. Womba Tulga was aware of the factual circumstances that established the
character of the act as part of a widespread or systematic attack directed against a
civilian population
60. Regarding the evidence submitted, including orders in writing, it is without any doubt that the
attacks were carried out in 40ehavior40nt of Womba Tulgas orders and under his responsible
command. As their outcome was reported to him by HLA soldiers, the accused must have been
aware of the situation of widespread and systematic acts of forced marriage and enslavement
taking place in the Pontasian national park. Enslavement, torture, sexual slavery, forced
marriages were already reported in the March 2012 Report of the UNHCHR.
61. A crime against humanity is any of the acts listed in Article 7(1), when committed as a part of
a widespread or systematic attack directed against any civilian population, with knowledge of
the attack. In accordance with customary international law, the two elements widespread or
systematic should be read disjunctively and not as cumulate requirements81. Widespread
refers to the large scale of an attack, including many victims 82. Systematic refers to an
organized pattern of conduct as distinguished from random or unconnected acts committed by
independent actors83. Secondly, the attack, which is directed at the civilian population, does not
need to involve the military or violent force, however the civilian population must be the
primary target of the attack, not just an incidental target 84.
62. Considering other requirements, civilian population refers to people who are civilians and not
members of armed forces or other legitimate combatants 85. The civilian population must be the
primary target of the attack, not a secondary victim86. Moreover, the perpetrator must know
that his acts form part of a widespread or systematic attack against a civilian population 87. The
80The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.
81 Prosecutor v. Tharcisse Muvunyi, Case No ICTR-2000-55A-T, Judgment, Trial Chamber, 12 September 2006, para.
512.
82 Prosecutor v. Francois Karera, Case No ICTR-01-74-T, Judgment, Trial Chamber, 7 December 2007, para. 551.
83 Prosecutor v. Emmanuel Ndindabahizi, Case No ICTR-2001-71-I, Judgment, Trial Chamber, 15 July 2004, para.
477.
84 Prosecutor v. Tihomir Blaskic, Case No IT-95-14-A, Judgment, Appeals Chamber, 29 July 2004, para. 106
85 Situation in the Republic of Kenya, Case No ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya, Pre-Trial Chamber, 31 March 2010, para.
82
87 Prosecutor v. Mikaeli Muhimana, Case No ICTR- 95-1B-T , Judgment, Trial Chamber, 28 April 2005 para. 530.
40 | P a g e
crimes themselves need not contain all of the above stated elements of the crime, but must form
part of such an attack. Indeed, the individual crimes contain their own specific elements 88.
63. In November 2011, after the PNA retook the cities primarily attacked by HLA, Womba Tulga
ordered the troops under his command to seize Anot children and conscript them into the
HLA89. Altogether, the HLA abducted over then thousand Anot children between the ages of 10
and 15 from tarsus, Shinar and Horan90. Considering that Pontasia has a population of 10
million, it may be deducted that over ten thousand children consist a large and significant group
of civilian population. Thereby, the scale of the attack was large and included many victims, and
fulfilled the widespread element of the definition.
64. Using the term wife, when calling the Anot girls and teenage women, was a deliberate and
strategic tactic adopted by the perpetrator in order to demonstrate a rebels control over the girls.
By calling a woman wife, the husband openly staked his claim and she was not allowed to
have sexual relations with any other person. If she did, she would be deemed unfaithful and the
penalty was severe beating or death. Bush wives were expected to carry out all the functions
of a wife and were constantly sexually abused, physically battered during pregnancies and
psychologically terrorized by their husbands, who thereby demonstrated their control over their
wives91. Even the escape of some of the bush wives through the border to Edom did not
change the situation, and after the wives were returned to their husbands the existing abuses
did not stop. The prosecution further submits that, prior to the attack on Edom, all troops
received orders from high-ranking HLA commanders and Womba Tulga himself carried out the
attack. The victims were under the custody of the direct perpetrator the Womba Tulga as the
commander of the HLA soldiers for about five to six months. Consequently, there was an
organized conduct of this practice since November 2011 till April 2012, and therefore its
occurrence was also systematic.
65. In accordance with the words of Womba Tulga, that he shall replenish the ranks of his fallen
comrades with Anot boys and girls 92, we can precisely state, that the civilian population was the
primary target of the attack, not just an incidental target or secondary victim. Definitely, the
Anot boys and girls were the members of a civilian population, as they were not members of
armed forces or other legitimate combatants. Therefore, they could be subjects of widespread
and systematic attack.
88 Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No ICTR-95-1-T, Judgment, Trial Chamber, 21 May
1999, para. 135.
90Ibidem, para. 6.
91Ibidem, para. 7.
92Ibidem, para. 6.
41 | P a g e
D. The accused knew that the conduct was part of a widespread or systematic attack
directed against a civilian population
66. Taking into consideration the abovementioned statements of Womba Tulga and his deliberate
actions of using the word wife to control the Anot girls and teenage women93, the perpetrator
must have known that his acts constituted part of a widespread and systematic attack against a
civilian population.
67. There is a two stage test which must be satisfied in order to establish individual criminal
responsibility under Article 25. This test requires the demonstration that (i) the persons conduct
contributed to the commission of an illegal act, and (ii) the person knew, intended or was aware
that he participated in the crime 94. As it would be proven, the actions of Womba Tulga are
sufficient to fulfil the conditions of the test.
68. Bearing in mind the orders of Womba Tulga to take the Anot children into the HLA and the
written approval of the armed raids into Edom in order to re-acquire the escaped bush wives,
it could be stipulated that in accordance with Article 25(3)(a) Womba Tulga is to be criminally
responsible and liable for punishment for a crime within the jurisdiction of the ICC as he
committed the crime individually (by abusing the Anot girls and teenage women), jointly (with
his HLA troops) or through another person (only by his HLA troops). The accused did
participate physically in the commission of the alleged crimes.
69. What is more, his acts fulfil also the prerequisites from Article 25(3)(b) as he ordered, solicited
and induced the commission of the accused crimes, as by oral orders and written approvals the
HLA soldiers under his command captured, abused and afterwards re-acquired the escaped
bush wives. The evidence indicated by the Prosecutor confirms Womba Tulgas leadership
role within the HLA, as it includes statements from former HLA commanders, victims or
witness accounts, and also orders in writing 95. It is to be noted that the confession of the accused
which was made before the Commission are possible to constitute evidence in the proceedings
before the ICC, regardless of the fact that this body is not regarded as a judicial organ.
70. It is to be stressed, that the actions of Womba Tulga fulfil the requirement of the two stage test
aimed at the establishment of individual criminal responsibility under Article 25. Firstly, his
conduct contributed to the commission of an illegal act, as he was aware that he did participate
in the crime. What is more, the accused failed to take any actions, as the head of the HLA
troops, and by his own 42ehavior encouraged other individuals, becoming directly responsible
for the practices.
93Ibidem, para. 7.
94 Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No ICTR-95-1-T, Judgment, Trial Chamber, 21 May
1999, para. 198.
42 | P a g e
71. The above stated acts, committed on the territory of Pontasia and Edom since November 2011,
constitute a major breach of the international convention to which Pontasia is a party. The
International Covenant on Civil and Political Rights96 prohibits in Article 8 the existence of
slavery in any form. Furthermore, they oblige state parties to respect and protect womens and
childrens rights.
72. The allegations against the accused constitute cognizable and sufficiently serious cases of
crimes against humanity within the ICCs jurisdiction. Crimes committed in Pontasia were one
of the most severe crimes an individual could commit. They violated not only the provisions of
international law, but also customary national law concerning the widespread practice of
arranged marriage, where two sets of parents select their childrens spouses 97. Crimes against
humanity, crime of genocide, war crimes, and the crime of aggression create a catalogue of the
most serious crimes worldwide. Pontasias violation of the UN Charter and ratified conventions
brings a major threat to the peace and security. Consequently, the accused, as a commander of a
rebellious army group, is criminally responsible for crimes against humanity including:
enslavement, rape, torture, sexual slavery and other inhumane acts as forced marriage from
November 2011 till April 2012.
73. As it was proven above, it remains without any doubt that crime of forced marriage constitutes a
cognizable crime against humanity of other inhumane acts, as per Article 7(1)(k) as there the
following prerequisites from the Elements of Crimes that are met: great suffering, or serious
injury to body or to mental health of the abducted women, a character of committed acts similar
to the acts from Article 7(1), attack was directed against a civilian population as a part of
widespread or systematic attack, Womba Tulgas was aware of the factual circumstances that
established the character of the acts and he knew that the conduct is a part of a widespread or
systematic attack directed against a civilian population. Hence, the acts committed fall under the
ICCs definition of a crime against humanity.

43 | P a g e
SUBMISSIONS
The Prosecutor of the ICC requests the Appeal Chamber to adjudge that:
1. the accused Womba Tulga shall be charged for acts that occurred in the territory of Edom,
2. the proceedings before the Truth and Reconciliation Commission do not render the case
inadmissible, and
3. The crime of forced marriage is a cognizable crime against humanity under Article
7(1)(k).
44 | P a g e
45 | P a g e
JUDGE COMMENTS
Concerning the memorandum of the Prosecution, judges have criticized the fragmentation and
spilling the arguments all over the text. It occurs that they like to read well-ordered memorandum,
which is divided into segments accordingly to each different issue. It is good to keep that order and
accordance of contents with title of the chapter. A huge virtue is put on the broad knowledge of the
procedure before international criminal courts it helps to consider all the possible actions, motions
and submissions. It also sets our thoughts about issues set by the competition. Factual analysis shall
be supported by the legal one, comparison between them is better than to treat them separately.
Self-confidence while summoning some authority, jurisprudence, principle or norm helps to present
firmly our theses: we do not claim that something shall be or could be applied to the case, we prove
all the presumptions allowing for such application.
46 | P a g e
TEAM ...
COUNSEL FOR THE DEFENCE MEMORIAL
MOOT COMPETITION
20 FEBRUARY 2013
WORD COUNT: ...
47 | P a g e
APPEALS CHAMBER
SITUATION IN EDOM
COUNSEL FOR THE DEFENCE MEMORIAL
AUTHOR: ANITA GARNUSZEK
TEAM ...
48 | P a g e
Memorial of the Defence
LIST OF ABBREVIATIONS
Article Article of the ICC Rome Statute
Commission Truth and Reconciliation Commission in Pontasia
Edom Kingdom of Edom
i.a. inter alia
ICTY International Criminal Tribunal for former Yugoslavia
para. paragraph
Pontasia Republic of Pontasia
Statute Rome Statute of the International Criminal Court
UN United Nations
UNHCHR United Nations High Commissioner for Human Rights
49 | P a g e
INDEX OF AUTHORITIES
BOOKS
A.Cassese, Crimes against Humanity in A.Cassese, P.a Gaeta, and J. Jones (eds.), The Rome
Statute of the International Criminal Court: A Commentary, 2002
A. Cassese, International Criminal Law, 2 nd ed., 2008
R. Dixon, revised by CH. Hall, Crimes Against Humanity in O. Triffterer (ed) Commentary on
the Rome Statute of the International Criminal Court: Observers Notes, Article by Article,
2nd edn Verlag CH Beck, Altrusried-Krugzell, 2008
J. T. Holmes, Complementarity: National courts versus the ICC, in A. Cassese, P. Gaeta, J. R.

W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary,
Oxford University Press, Oxford, 2002, ch. 18.1
R. Jennings, A. Watts, Oppenheims International Law, 9th ed Pearson Education Limited,

Harlow, 1996
R. Mattarollo, Truth commissions, in C. Bassiuni (ed.), Post-Conflict Justice, Transnational

Publishers, 2002
M.N. Shaw, International Law, Cambridge University Press, 6th Edition, 2008
M. Whiteman, Digest of International Law: vol. 2, Washington, D.C.: Department of State,

1963
ARTICLES
A. Bundu, Recognition of Revolutionary Authorities: Law and Practice of the States, 27
International and Comparative Law Quarterly 18, 1978
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M, McAuliffe deGuzman, The Road from Rome: The Developing Law of Crimes Against
Humanity, 22(2) Human Rights Quarterly 335, 2000
D. Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the
International Criminal Court, 14 EJIL 3, 2003
M. Crippa, A Long Path toward Reconciliation and Accountability: A Truth and

Reconciliation Commission and a Special Chamber for Burundi?, International Criminal Law
Review 12, 2012
A.Seibert Fohr, The Relevance of the Rome Statute of the International Criminal Court for
Amnesties and Truth Commissions, Max Planck Yearbook of United Nations Law 7, 2003
J. Dugard, Dealing with crimes of a past regime. Is amnesty still an option, LJIL 12, 1999
C. Villa Vicencio, Why perpetrators should not always be prosecuted: Where the
International Criminal Court and Truth Commission meet, Emory Law Journal 49, 2000
J. Laakso, In Pursuit of Truth, Justice and Reconciliation: The Truth Commissions of East
Timor and South Africa, 22 Social Alternatives 2, Second Quarter, 2003
X. Philippe, The principles of universal jurisdiction and complementarity: how do the two
principles intermesh?, 88 International Review of the Red Cross 862, 2006
N. A. Goodfellow, The Miscategorization of Forced Marriage as a Crime against Humanity

by the Special Court for Sierra Leone, International Criminal Law Review 11, 2011
B. Toy-Cronin, What is Forced Marriage? Towards a Definition of Forced Marriage as a

Crime against Humanity, 16 Colombia Journal of Gender and Law, 2010
N. Jain, Forced Marriage as a Crime against Humanity, 6 Journal of International Criminal

Justice 1013, 2008
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CASES
ICC
Situation in the Republic of Kenya, Pre-Trial Chamber II, 31 March 2010, ICC-01/09-19
Prosecutor v Harun and Kushayb, Pre-Trial Chamber I, 27 April 2007, ICC-02/05-01/07
Prosecutor v Bemba-Gombo, Pre-Trial Chamber II, 15 June 2009, ICC-01/05-01/08
Prosecutor v Katanga and Ngudjolo, Pre-Trial Chamber I, 30 September 2008, ICC-01/04-

01/07
Prosecutor v Al Bashir, Pre-Trial Chamber I, 4 March 2009, ICC-02/05-01/09
Situation in the Republic of Cte DIvoire, Pre-Trial Chamber III, 3 October 2011, ICC-02/11
Prosecutor v Ruto, Kosgey and Sang, Pre-Trial Chamber II, 30 May 2011, ICC-01/09-01/11
Prosecutor v Muthaura, Kenyatta and Ali, Appeals Chamber, 20 August 2011, ICC-01/09-
02/11
ICJ
Yerodia case, DRC v. Belgium, ICJ, 14 February 2002
ICTR
Prosecutor v. Akayesu , ICTR, Trial Chamber, Judgment, 2 September 1998, ICTR-96-4-T
ICTY
Prosecutor v Tadi, ICTY, Opinion and Judgement, 7 May 1997, IT- IT-94-1-T
Prosecutor v Kunarac, Kovac and Vukovic, ICTY, Trial Judgement, 22 February 2001, IT-96-
23 and 23/1-T,
52 | P a g e
Prosecutor v Kordi and erkez, ICTY, Appeals Judgement, 17 December 2004, IT-95/14/2-
A
Prosecutor v Blaki, ICTY, Appeal Judgement, 29 July 2004, IT-95-14-A
Prosecutor v. Staki , ICTY, Appeals Chamber, Judgment, 22 March 2006, IT-97-24-A
Prosecutor v. Kvoka et al. , ICTY, Trial Chamber, Decision on Defence Preliminary Motions
on the Form of the Indictment, 12 April 1999, IT-98-30-PT
Prosecutor v. Kupreskic et al., ICTY, Trial Chamber, Judgment, 14 January 2000, IT-95-16-T
Prosecutor v. Mladen Naletilic aka "Tuta", Vinko Martinovic aka "Stela", ICTY, Trial
Chamber, Judgment, 31 March 2003, IT-98-34-T
Prosecutor v. Dario Kordic, Mario Cerkez , ICTY, Appeals Chamber, Judgment, 17 December
2004, IT-95-14/2-A
Prosecutor v. Stanilav Galic , ICTY, Trial Chamber, Judgment and Opinion, 5 December
2003, IT-98-29-T
Special Court for Sierra Leone

Prosecutor v. Brima, Kamara and Kanu, Special Court for Sierra Leone, Trial Chamber II,
Judgment, 20 June 2007, SCSL-2004-16-T
Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Special Court for Sierra
Leone, Trial Chamber, Judgment, 2 March 2009, SCSL-04-15-T
Prosecutor v. Sam Hinga Norman, Special Court for Sierra Leone, Appeals Chamber,
Dissenting Opinion by Justice Robertson on Decision on Preliminary Motion Based on Lack
of Jurisdiction, 31 May 2004, SCSL-2004-14-AR72(E),
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ECHR
Kafkaris v. Cyprus, 49 ECHR, ser. A, 2008
INTERNATIONAL INSTRUMENTS
Rome Statute, 1 July 2002, 2187 UNTS 90
International Covenant on Civil and Political Rights , G.A. Res. 2200A (XXI), 21 U.N.
GAOR, 21 st Sess., Supp. No. 16 at 52, U.N. Doc. A/6546, 1966, entered into force 23 March
1976
Elements of Crimes of the International Criminal Court, 9 September 2002, ICC-ASP/1/3
Final Report of the Commission of Experts Pursuant to Security Council Resolution 780, UN
SCOR, 49th Sess., Annex, 1994, UN Doc s/1994/674
GAOR, 51st Sess., Supp. No. 22, Doc. A/51/22, 37
OTHERS AUTHORITIES
The Rome Statute. Commentary, ILC Database & Commentary,

http://www.iclklamberg.com/Statute.htm#_ftn318
54 | P a g e
STATEMENT OF FACTS
FACTUAL BACKGROUND
1. Pontasia and Edom are neighbouring States, adjacent on the south coast of the Emerald
Sea. Edom is a State-Party to the Statute from 2005 whereas Pontasia is not a party to
the ICC. Pontasia and Edom do not have a bilateral extradition treaty. 98
2. The population of Pontasia consists of two ethnic groups: the Anots (80 percent), and the
Hadads (20 percent). Both groups share similar religious beliefs and customs, including
the widespread practice of arranged marriage at an early age.
3. In October 2011, a group of about 100,000 Hadads of Pontasian nationality, who called
itself the HLA, under the command of Womba Tulga, overtook three Pontasian cities
with the object of forming an independent Hadad-controlled State.99 PNA started to fight
in the aim of defending the three cities and mistreated captured members of the HLA.
After PNA gained advantage, Womba Tulga commanded his troops to take about ten
thousand Anot children to the Pontasia Forests with HLA. 100
4. The Anot girls and teenage women were taken as wives. They were expected to carry out
all standard duties of a wife household chores, food preparation, child rearing, and
farming and to be faithful to their husbands.
5. In January and February 2012, several hundred of the Anot wives escaped from their
husbands to Edom. With Womba Tulgas written approval to leave Pontasia, the HLA
husbands re-acquired the escaped wives. By the end of February, most of them have
returned to their HLA husbands. 101
6. With the assistance of a UN mediation team, the President of Pontasia and HLA leader
Womba Tulga met to sign on 25 March 2012 a two side Agreement, which was approved
a week later by the Pontasian Parliament and the Council of HLA Rebel Leaders. The
Agreement provided for: (1) the immediate cessation of hostilities, (2) the phased
disarmament and eventual disbanding of the HLA, (3) the immediate release of all
abducted children and termination of forced marriages; (4) the enactment of domestic
98 Facts, para. 1.
99 Ibidem, para. 5.
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legislation to promote the civil, economic and social rights of the Hadad population of
Pontasia; and (5) the expedited establishment of the Commission modeled on that of the
South Africa Truth and Reconciliation Commission, which would hold public hearings
and publish findings regarding perpetrators.102
7. The President of Pontasia appointed a nine-member Commission headquartered in Quarth,
with five Anot members and four Hadad members possessing high moral character,
impartiality, and integrity. It also provided that decisions of the Commission relating to
the grant of a pardon are binding and not subject to appeal to the courts of Pontasia. 103
8. Under the provisions of the 25 March Agreement, any member of the HLA who publicly
confesses his crimes against humanity before the Commission and does community
service for one year, shall be granted a full pardon for any acts related to the conflict.
Such persons shall, however, be permanently prohibited from holding public office or
serving in the military. Anyone who does not avail themselves of the opportunity to
confess within six months of the signing of the Peace Agreement is to be subjected to
prosecution with a penalty ranging from 10 years to capital punishment. 104
9. On 17 April 2012, Womba Tulga confessed his crimes before the Commission. The
Commission unanimously found that (a) Tulgas statement was sufficiently detailed,
comprehensive, and truthful, (b) his confessed acts constituted war crimes and crimes
against humanity related to large-scale recruitment and use of child soldiers and to
widespread acts of forced marriage, and (c) Tulga had expressed sincere remorse and
contrition for his acts, especially regarding the abduction and mistreatment of Anot boys
and girls by soldiers under his command. The Commission therefore certified Womba
Tulga for a pardon conditioned on one year of public service, and proclaimed that he
shall never be permitted to hold public office or serve in the military in Pontasia. 105
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10. During the next five months, most of the other HLA members turned over their arms to the
UN Monitoring Mission, released their bush wives, and traveled to Quarth to confess
their crimes before the Commission. 106
2012 (the Edom situation) to the ICC.107
PROCEDURAL BACKGROUND
1) March 2012 Report of the UNHCHR on the phenomenon called bush wife or rebel
wife.
2) 30 March 2012 Edom referred the situation of HLA atrocities in Edom to the ICC.
3) 25 April 2012 The ICC Prosecutor announced his intention to start an investigation into
the Edom situation.
4) 30 May 2012 The Pre-trial Chamber issued an arrest warrant for Womba Tulga, based on
the submitted application of the Prosecutor, finding that there were reasonable grounds to
believe that he is criminally responsible under Article 25(3)(b) and Article 28 for acts
constituting crimes against humanity committed in the territory of Edom, namely (1) the
crime of sexual slavery under Article 7(1)(g), and (2) the crime of forced marriage under
Article 7(1)(k).
5) 7 June 2012 Womba Tulga made a voluntarily appearance before the ICC.
6) 1 August 2012 The Prosecutor, the Legal Representative for Victims, and Counsel for
Womba Tulga submitted briefs and made oral presentations before the Pre-Trial Chamber.
7) 15 September 2012 The Pre-Trial Chamber found and concluded that forced marriage is
not a separate cognizable crime against humanity under Article 7(1)(k), upheld the count of
sexual slavery under Article 7(1)(g), found that the alleged acts may not serve as a basis of
jurisdiction for Womba Tulgas alleged crimes against humanity under Article 12(2)(a) and
Article 14(1), found that the proceedings against Womba Tulga before the Commission do
not render the case inadmissible under Articles 17 and 20.
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Counsel for the Defence Memorial
ISSUES
The following issues are to be addressed in the memorial:
Article 7(1)(k);
b. Whether the alleged acts that occurred in the territory of Edom are sufficient to serve as a
basis of jurisdiction for alleged crimes against humanity in Pontasia under Article 12(2)(a)
and Article 14(1);
c. Whether the case is inadmissible because the proceedings of Pontasian Commission

preclude trial before the ICC under Article 17 and 20.
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SUMMARY OF ARGUMENTS
1. Alleged acts that occurred in the territory of Edom are not sufficient to serve as a basis of
jurisdiction for crimes against humanity in Pontasia under Article 12(2)(a) and Article 14(1). First
of all, the jurisdiction of the ICC should be limited only to the acts of re-acquirement of bush
wives committed on the territory of Edom. Consequently, these acts are not grave enough to be
deemed crimes against humanity as: (a) re - acquirement of bush wives neither constitutes a
widespread nor a systematic attack, (b) the attack was not directed against a civilian population and
(c) the attack was not a part of a State or organizational policy.
2. Furthermore, the case is inadmissible because the proceedings of the Pontasian Commission
preclude the trial before the ICC. First of all, the principle of complementarity precludes the
admissibility of the case. Investigations conducted by the Pontasian Commission fulfilled the
requirements set up in Article 17(1)(a). Pontasia is willing and able to carry out the investigation.
What is more, this state is not shielding HLA members from criminal responsibility. Additionally,
principle of ne bis in idem governs the admissibility of the case.
3. Crime of forced marriage is not a cognizable crime against humanity under Article 7(1)(k).
Firstly, Special Courts for Sierra Leone definition of forced marriage is unsound. Secondly,
properly defined forced marriage does not meet elements of crime against humanity and thirdly,
such qualification of the situation would violate principles of: legality, nullum crimen sine lege
principle, principle of nonretroactivity and principle of specificity. What is more, human rights
instruments are not sufficient to establish the offence.
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WRITTEN ARGUMENTS
1. On 15 September 2012, Pre-Trial Chamber VI of the ICC rendered decision in which it

determined that the case falls within the jurisdiction of the ICC and is admissible. The Defense
decided to appeal the decision on the following grounds:
I. ALLEGED ACTS THAT OCCURRED IN THE TERRITORY OF EDOM ARE NOT

SUFFICIENT TO SERVE AS A BASIS OF JURISDICTION FOR CRIMES AGAINST
HUMANITY IN PONTASIA UNDER ARTICLE 12(2)(A) AND ARTICLE 14(1).
1. PRELIMINARY MATTERS ON THE JURISDICTION.
2. The case of the Womba Tulga was referred to the ICC in the conformity with the provisions of
the Statute.108
3. According to the Article 12, a State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred to in article 5. It should be noted
that the ICC may exercise its jurisdiction if the State on the territory of which the conduct in
question occurred is a Party to the Statute or accepted the jurisdiction of the ICC.
4. Article 13 reads that the Court may exercise its jurisdiction with respect to a crime referred to
in article 5 in accordance with the provisions of this Statute if it have been referred to the
Prosecutor by a State Party in accordance with Article 14. As far as current proceedings are
concerned, the situation was referred by Edom according to the procedure required by the
Statute.
5. The basis for the exercise of jurisdiction is the membership of the territorial State to the Rome
Statute. This provision is mainly based on the assertion of territorial jurisdiction as one of the
main implications of the principle of State sovereignty109. Pontasia is not a state party to the
Statute and has not accepted ICCs jurisdiction over situation in question.110 Edom is a State
Party to the Statute111 and on 30 March 2012, referred the situation of Hadad Liberation Army
atrocities in Edom since 1 January 2012 to ICC, on the basis of Article 12(2)(a) and 14(1) 112.
108 Rome Statute, 1 July 2002, 2187 UNTS 90, [ICC Statute].
109 M.N. Shaw, International Law, Cambridge University Press, 6th Edition, 2008, p. 579.
110 Facts, para. 1.
111 Ibidem.
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6. It should be noted that according to Article 12(2)(a), any investigation should be limited only to
the occurrences which have taken place on the territory of Edom. In January and February 2012,
several hundred of the Anot bush wives escaped from their HLA husbands and made their
way across the border to Edom. Consequently, HLA soldiers committed dozens of armed raids
into Edom to re-acquire the escaped bush wives.
7. Therefore, in order to establish whether the ICC has the jurisdiction over alleged crimes against
humanity, what should be taken into consideration are solely armed raids on the territory of
Edom, conducted in order to re-acquire the specific group of women, called bush wives. In
result, any occurrences which have taken place on the territory of Pontasia are irrelevant in
regards to the situation in Edom.
8. Moreover, it should be emphasized that the principle of universal jurisdiction is not applicable
in the case at hand. Otherwise, it would be interpreted as the lack of trust in Pontasias judicial
system, a violation of its sovereignty and interference in its internal affairs 113. Furthermore, the
Statute itself does not include the principle of universal jurisdiction which was rejected during
the legislative works on it.
2. THE PRE-TRIAL CHAMBER ERRED IN DECIDING THAT THIS CASE

CONSTITUTES CRIME AGAINST HUMANITY WITHIN THE ICCS
JURISDICTION.
9. The decision of Pre-Trial Chamber of the ICC on the qualification of the acts of Womba Tulga
as crimes against humanity being within the scope of the jurisdiction of the ICC was not
adequate.
10. The submission of the Counsel for Defense is that the ICC erred in deciding that this Case is a
cognizable and sufficiently serious to serve as a crime against humanity within the ICCs
subject-matter jurisdiction. Armed raids conducted in order to re-acquire bush wives does
not constitute a widespread or systematic attack (a) directed against a civilian population (b) in
furtherance of a State or organizational policy (c).
Re-acquirement of bush wives neither constitutes a widespread nor a

systematic attack on the population of civilians.
113 R. Jennings, A. Watts, Oppenheims International Law, p. 428; A. Bundu, Recognition of Revolutionary
Authorities: Law and Practice of the States, p.39; M. Whiteman, Digest of International Law: vol. 2, Washington, D.C.:
Department of State, 1963, pp.72-73.
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11. As indicated in Article 12(1), a State which becomes a Party to Statute accepts the jurisdiction
of the Court with respect to the crimes referred to in Article 5. The latter contains different
categories of international crimes, including i.a. crimes against humanity. However, the
occurrences which took place on the territory of Edom, namely armed raids conducted in order
to re-acquire bush wives, do not constitute a crime against humanity under the definition set
up in Article 7, which reads as follows:crime against humanity means any of the following
acts when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack.
12. It is to be recognized that crimes against humanity are among the most serious crimes of
concern to the international community. Furthermore, the conduct must be impermissible under
generally applicable international law, as recognized by the principal legal systems of the
world114.
13. Definitely, re-acquirement of bush wives to their husbands is an act which deserves a
condemnation because of the unacceptable treatment of women. However, it cannot be
perceived as the most serious crime which falls under the ICCs jurisdiction. Re-acquirement
of bush wives was an isolated and random act and cannot amount to a widespread or
systematic attack.115
14. The Counsel for the Defense stresses that a widespread attack should be large-scale, massive,
frequent and carried out collectively with considerable seriousness against a multiplicity of
victims116. The quantitative number of victims is particularly important 117. Previous situations
and cases before the ICC have involved significantly larger victim numbers than the situation in
Edom118. Here, in January and February 2012, several hundred of the Anot bush wives
114 Elements of Crimes of the International Criminal Court, 9 September 2002, ICC-ASP/1/3, art. 7.
115 Situation in the Republic of Kenya, Pre-Trial Chamber II, 31 March 2010, ICC-01/09-19, para. 94, [Situation in
Kenya]; Prosecutor v Harun and Kushayb, Pre-Trial Chamber I, 27 April 2007, ICC-02/05-01/07, para.62; Prosecutor
v Tadi, ICTY, Opinion and Judgement, 7 May 1997, IT- IT-94-1-T, para. 648 [Tadi]; R. Dixon, revised by CH. Hall,
Crimes Against Humanity in O. Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court:
Observers Notes, Article by Article, 2nd edn Verlag CH Beck, Altrusried-Krugzell, 2008, p.169, [Dixon].
116 Situation in Kenya, para. 95; Prosecutor v Bemba-Gombo, Pre-Trial Chamber II, 15 June 2009, ICC-01/05-01/08,
para. 83,[Bemba Gombo].
117 Prosecutor v Kunarac, Kovac and Vukovic, ICTY, Trial Judgement, 22 February 2001, IT-96-23 and 23/1-T, , para.
428.
118 Situation in Kenya, paras. 131, 154; Prosecutor v Katanga and Ngudjolo, Pre-Trial Chamber I, 30 September 2008,
ICC-01/04-01/07,paras. 408-410 [Katanga]; Prosecutor v Al Bashir, Pre-Trial Chamber I, 4 March 2009, ICC-02/05-
01/09, para. 98.
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escaped from their HLA husbands and made their way across the border to Edom 119. Several
hundred in comparison to 10 millions 120 of Pontasian population is certainly not a significant
number which does not fall within the meaning of the word widespread.
15. Additionally, crime is systematic when it involves organized acts with an improbability of
random occurrence121. Attack in question had a random character because if the escape of bush
wives had not occurred, it would not be conducted by HLA.
16. Therefore, neither the prerequisite of systematic attack nor the demand for it to be widespread
was fulfilled in the present case.
The attack was not directed against a civilian population.
17. The opinion of the Counsel for the Defense is that the attack of HLA was not directed against
the population of the civilians.
18. In general, to constitute an attack, a particular act must involve a campaign or operation
conducted against a civilian population122. It requires that a large number of victims are
targeted123. Here, several hundreds of girls constitute a small percentage of total Pontasian
population.
19. Furthermore, an individual must be victimized because of membership within a certain group,124
not due to individual attributes.125 National, political, ethnic, racial and religious groups
constitute civilian populations. 126 Group of girls who escaped from their husbands does not
fall within the above described definition.Re - acquirement of bush wives was not
119 Facts, para. 8.
121 Prosecutor v Kordi and erkez, ICTY, Appeals Judgement, 17 December 2004, IT-95/14/2-A, para.94;
Prosecutor v Blaki, ICTY, Appeal Judgement, 29 July 2004, IT-95-14-A, para. 101; Dixon, p. 179.
122 Situation in the Republic of Cte DIvoire, Pre-Trial Chamber III, 3 October 2011, ICC-02/11, para. 31; Bemba
Gombo, para. 75,.
123 M, McAuliffe deGuzman, The Road from Rome: The Developing Law of Crimes Against Humanity, 22(2) Human
Rights Quarterly 335, 2000, p. 361.
124 Ibidem, p. 363.
125 Tadi, para. 644.
126 Final Report of the Commission of Experts Pursuant to Security Council Resolution 780, UN SCOR, 49th
Sess., Annex, 1994, UN Doc s/1994/674, para. 72.
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committed on discriminatory grounds. Consequently, there was no attack on a civilian
population.
The attack was not a part of a State organizational policy.
20. In order to establish crime against humanity, there must be an attack in furtherance of a State or
organizational policy. 127 It is understood that policy to commit such attack requires that the
State or organization actively promote or encourage such an attack against a civilian
population.128
21. There is absolutely no evidence that Womba Tulga, as HLAs representative, actively promoted
or encouraged such an attack. Indeed, Tulga expressed its approval for the action, however it
does not mean per se that the act was a part of the organizational policy. The sole purpose of the
conduct was to return bush wives to their husbands, which is indeed a violation of personal
freedom of those women, however it cannot be perceived as a crime against humanity.
22. In consequence, the requirement for the attack to constitute a part of states organizational
policy was not fulfilled as well, which makes current situation inadmissible under the ICCs
jurisdiction.
127 ICC Statute, Art 7(2)(a).
128 Elements of Crimes, art. 7 introduction.
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II. THE CASE IS INADMISSIBLE BECAUSE THE PROCEEDINGS OF THE
PONTASIAN COMMISSION PRECLUDE THE TRIAL BEFORE THE ICC UNDER
ARTICLES 17 AND 20.
23. In order to establish whether the case is admissible under the ICC, there should be first assured
the ICC has the jurisdiction over the alleged crimes and here, as indicated in previous
paragraphs, the ICC has no jurisdiction over the situation in Edom. However, in any event,
admissibility of the case is precluded by the principle of complementarity and ne bis in idem
principle.
1. Principle of complementarity precludes admissibility of the case.
24. According to the Article 17(a) the Court shall determine that a case is inadmissible where the
it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the investigation or prosecution.
25. The Defense notes that the Trial Chamber in Katanga case noted that the provisions of Article
17 must be considered in the light of paragraph 10 of the Preamble and Article 1. Read together,
these provisions establish one of the fundamental principles of the Statute, namely the one that
the ICC is complementary to national criminal courts jurisdiction. Thus, according to the
Statute, the ICC may only exercise its jurisdiction when a State which has jurisdiction over an
international crime is either unwilling or unable genuinely to complete an investigation and, if
warranted, to prosecute its perpetrators.129 Such situation is not being recognized in the case at
hand.
a) Investigations conducted by Pontasian Commission fulfilled requirements set

up in Article 17(1)(a).
26. The requirement from Article 17(1)(a) are fulfilled as far as the proceedings before the
Commission are concerned.
27. For the purposes of defining a "case", national investigations "must cover the same conduct"
which requires that those investigations must also cover the same persons subject to the ICC's
129 Katanga, para. 74.
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proceedings.130 The words 'is being investigated' in this context signify the taking of steps
directed at ascertaining whether this individual is responsible for that conduct, for instance by
interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic
analyses. 131
28. The Statute does not determine what kind of body should conduct investigation and what is
more does not indicate if investigations should be conducted by national offices of prosecution
or national courts. The drafters of the Statute left a few small avenues open to the ICC and
allowing the ICC to develop an appropriate approach when faced with concrete situations. In the
light of the above, the investigations can be conducted by Truth and Reconciliation
Commissions unless they comply with other criteria set up in Article 17. 132
29. It is to be noted that there are several examples of dual-model systems, including the Truth and
Reconciliation Commission (TRC) and the Special Court for Sierra Leone (SCSL) in Sierra
Leone, as well as the Commission for Reception, Truth and Reconciliation (CAVR) and the
Serious Crimes Unit (SCU) of the UN Transitional Authority in East Timor (UNTAET). 133
In Burundi, the Arusha Peace Agreement foresaw a rather complex system of consequential
reconciliation and retributive mechanisms, both at the national and international level. First, an
independent commission known as the National Truth and Reconciliation Commission was to
be established, with investigative, arbitration and reconciliatory functions. The Commission was
classifying the crimes and establishing the responsibilities, as well as identifying of victims and
perpetrators.134
30. Truth commissions reach out to thousands of victims trying to understand the extent of massive
violations unaccounted for and their motives and responsibilities to provide for exclusive or
complementary measures of reconciliation and accountability. 135 Furthermore, scholars propose,
that in order to determine whether conducted investigation is sufficient under art. 17, an
investigating, decisionmaking body should be at least: (1) independent, (2) effectiveequipped
130 Prosecutor v Ruto, Kosgey and Sang, Pre-Trial Chamber II, 30 May 2011, ICC-01/09-01/11, para. 47[Ruto];
Prosecutor v Muthaura, Kenyatta and Ali, Appeals Chamber, 20 August 2011, ICC-01/09-02/11, paras. 43, 50, 55 and
56.
131 Ruto, para. 1.
132 D. Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal
Court, 14 EJIL 3, 2003, p. 483, [Robinson].
133 M. Crippa, A Long Path toward Reconciliation and Accountability: A Truth and Reconciliation Commission and a
Special Chamber for Burundi?, International Criminal Law Review 12, 2012, p. 72.
134 Ibidem, p. 77.
135 R. Mattarollo, Truth commissions, in C. Bassiuni (ed.), Post-Conflict Justice, Transnational Publishers, 2002, pp.
295-324.
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with sufficient resources and powers, (3) be quasijudicial body able to determine facts and
assess those facts in accordance with objective criteria, (4) other forms of significant sanctions
should be available and (5) the investigation via such body as the Commission instead of court
should be objectively necessary. 136
31. Pontasian Commission fulfills all of the above mentioned criteria. The 25 March Agreement
provided for the expedited establishment of the Commission modeled on that of the South
Africa Truth and Reconciliation Commission, which would hold public hearings and publish
findings regarding perpetrators. The focus of the Commission was to be on the crimes against
humanity (defined the same as in the Statute) committed against abducted boys and girls by the
HLA and war crimes.137 Firstly, there is no doubt that the Commission is fully independent.
Secondly, the Commission possesses necessary resources and powers that makes it effective and
is able to determine facts and assess them. In addition, any member of the HLA who does not
publicly confess his crimes against humanity before the Commission will be subjected to
prosecution with a penalty ranging from 10 years to capital punishment.
32. The Defense is nevertheless on the opinion the demand that members of the HLA who confess
their guilt shall, however, be permanently prohibited from holding public office or serving in the
military138 is indicative in the case at hand. That gives evidence that other forms of significant
sanctions are available and the establishment of the Commission was absolutely necessary in
order to restore peace and to reconcile. The acknowledgement of responsibility and expression
of regret, as well as measures of reparation for the victims, are extremely important in opening
up an emotional space for forgiveness and reconciliation and thanks to the Commission, life in
Pontasia could come back to the normality.
b) Allegations that Pontasia is unwilling to carry out the investigation are

ungrounded.
33. There is no judicial basis for the statement that Pontasia was unwilling to conduct the
investigation of Womba Tulgas act.
34. The meaning of unwillingness to act was laid down in Article 17(2). This provision cites three
criteria for determining whether unwillingness exists: (i) shielding a person from criminal
136 Robinson, pp. 501-502.
137 Facts, para. 10.
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responsibility, (ii) unjustified delay in the proceedings which is inconsistent with the intent to
bring the person to justice and (iii) proceedings not conducted independently or impartially and
in a manner inconsistent with bringing the person to justice. When it regards second and third
premise, undoubtedly, the investigation before the Commission was conducted without any
delay and in an independent and impartial manner.
35. Indeed, any member of the HLA who publicly confesses his crimes against humanity before the
Commission and does community service for one year, was to be granted a full pardon for acts
related to the conflict 139. Nevertheless, Defense submits that amnesty in the case of public
confession to crimes against humanity does not fall under the demand (i) from the prerequisites
required to qualify an act on the basis of Article 17(2).
c) Pontasia is not shielding HLA members from criminal responsibility.

36. Womba Tulgas public confession cannot serve as a basis to qualify an act as falling under
Article 17(2) and therefore rendering it inadmissible under the jurisdiction of the ICC.
37. The Defense stresses that the amnesties may be granted individually at national level within the
framework of a quasi-judicial process. Quite often these immunities are constitutionally granted
to heads of states or high-level state officials in a general manner and without any restriction.
38. ICC, through the Office of the Prosecutor, may also consider such situations and decide that it is
in the interest of justice not to try certain perpetrators140. The ICC is called upon to determine
whether an amnesty qualifies as one of the situations described in Article 17 or not. That means
that if such investigation was conducted, the state was willing and able to genuinely carry out
investigation and in result it granted a suspect with amnesty. Therefore, all of the requirements
set up in Article 17 are met and the mere fact of amnesty does not make the case admissible. 141
39. Unwillingness to prosecute rendering the case admissible usually depends on the question
whether the proceedings by the truth commission or by the national decision not to prosecute
had a purpose of shielding persons from criminal responsibility. 142 Some authors argue that the
grant of criminal impunity is made clearly with such intent.143 However, if a criminal
punishment is waived by a truth commission in the interest of re-establishing peace, the purpose
140 Yerodia case, DRC v. Belgium, ICJ, 14 February 2002, passim.
141 A. Seibert Fohr, The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth
Commissions, Max Planck Yearbook of United Nations Law 7, 2003, p. 564 [Seibert].
142 Ibidem, p. 570.
143 J. Dugard, Dealing with crimes of a past regime. Is amnesty still an option, LJIL 12, 1999, p. 1014.
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is not to shield perpetrator but to serve a grater objective at the expense of criminal justice. In
such situations amnesty is used as a mean to achieve a legitimate higher purpose.144 Not to
prosecute is sometimes the necessary means to achieve peace and security. 145 The drafters of the
Statute were aware of that problem and wanted the complementarity regime to take account of
national reconciliation initiatives entailing legitimate offers of amnesty or internationally
structured peace.146 If there is responsible democratic decision that seeks to reconcile the
demand for justice with a pressing need for reconciliation by establishing alternative mechanism
of inquiry dealing with the past and thereby providing for the prevention of future atrocities and
if there is an alternative form of redress for the victims, argument can be made, that the decision
was not made for the purpose of shielding persons from criminal responsibility. 147
40. Pontasian Commission was modeled on the South Africa Truth and Reconciliation
Commission.148 The South African TRC had resources that far surpassed previous truth
commissions, including search-and-seizure powers, the right to issue court-backed subpoenas,
and the power to grant official amnesties. 149 Reconciliation, though such a process is long-term
in nature, has been set in motion by testimony and acknowledgement of past abuses, which were
partly facilitated by the granting of amnesty. The South African government determined that
they would have to offer conditional amnesties for past crimes as the price they would have to
pay to uncover the truth, although it was not the sort of blanket immunity offered in El Salvador
or Argentina. Perpetrators were required to stand before the TRCs Amnesty Committee to
make a full, public confession of their misdeeds, and they could escape the threat of prosecution
only if they were prepared to reveal the full extent of their criminal activities.150
41. All of that give evidence that Pontasian Commission was not set up in order to shield members
of HLA from criminal persecutions. In the contrary, it was the outcome of the peace negotiation
which has taken place with support of the UN and the purpose of the Commission was to enable
144 Seibert, p. 570.
145 C. Villa Vicencio, Why perpetrators should not always be prosecuted: Where the International Criminal Court
and Truth Commission meet, Emory Law Journal 49, 2000, pp. 205, 221.
146 GAOR, 51st Sess., Supp. No. 22, Doc. A/51/22, 37, para. 160.
147 Seibert, p. 572.
148 Facts, para. 10.
22 Social Alternatives 2, Second Quarter, 2003, p. 49, [Laakso].
150 Ibidem.
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all of the Pontasian including rebels to come back to their normal lives and to restore peace and
reconcile.
42. It is worth to point out that HLA has lost in an internal Pontasian conflict, thus it would be
illogical to claim that the winners want to shield their former opponents from persecution. In
addition, amnesty is granted to the perpetrators only if they stand before Commission and make
public confessions. Nevertheless, even in such situations, HLA members are burdened with
alternative sanctions.
43. In result, a statement that Pontasia was not willing to conduct investigations cannot be justified.
d) Allegations that Pontasia is unable to carry out the investigation are

ungrounded.
44. The Defense submits there are no grounds to state that Pontasia was unable to carry out the
investigation over Womba Tulga.
45. Inability is defined under Article 17(3) in less complicated terms than unwillingness. Firstly,
includes the non-functioning of a judicial system to such an extent that investigations,
prosecutions and trials of perpetrators are impossible. As stressed out by certain scholars 151, this
is a fact-driven situation, since inability can be the result of the physical collapse of the judicial
system or the intellectual collapse thereof. Inability also includes situations in which the
conclusion of trials is impossible, that is, the judicial system can still function but cannot face
the challenge of exceptional circumstances usually resulting from a crisis. 152
46. One of the very first conditions for an efficient prosecution of international crimes is the
existence of an efficient judicial system, that is, functioning courts with competent judges. But
this is not always the case, especially after an armed conflict or crisis has disrupted the country.
47. Therefore, there is always a possibility of setting up an ad hoc system such as the
Commission.153 The fact that Pontasia established fully independent and impartial quasi judicial
body, namely the Commission, indicates that Pontasia is able to conduct investigations.
151 J. T. Holmes, Complementarity: National courts versus the ICC, in A. Cassese, P. Gaeta, J. R. W. D. Jones (eds.),
The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, ch. 18.1,
p. 677.
152 X. Philippe, The principles of universal jurisdiction and complementarity: how do the two principles intermesh?,
88 International Review of the Red Cross 862, 2006, p. 383.
153 Ibidem, p. 394.
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2) Principle of ne bis in idem precludes the admissibility of the case.
48. The Counsel for the Defense stipulates the admissibility of the case at hand before the ICC is
precluded by the principle of ne bis in idem. Therefore, the proceedings against the accused
before the ICC cannot be continued.
49. Article 20 lays down the rule against double jeopardy in the context of proceedings under the
Statute. It is significant that those provisions are applicable not only to several proceedings
before the ICC, but also where ICC proceedings are followed by proceedings before national
bodies.154 Article 20(1) is applicable only where the initial proceedings led to an acquittal or
conviction, but not where proceedings where otherwise terminated. It prohibits any further
proceedings based on the conduct which formed the basis of crimes. In other words, there
may be no further proceedings for the same conduct, even if these are to be based on a different
legal qualification.
50. Article 20(3) applies to national proceedings 155, referring to persons who have been tried.
Therefore, it applies not only to proceedings which ended in conviction or acquittal, but also to
proceedings terminated otherwise.156
51. In result, proceedings before the Pontasian Commission fall under the scope of the
abovementioned provision. After thorough investigation of conduct which formed the basis of
crimes, members of HLA who confessed their guilt, were granted an amnesty. Nevertheless,
such situation is prescribed by Article 20(3) and thus, the principle ne bis in idem precludes the
admissibility of the case.
154 The Rome Statute. Commentary, ILC Database & Commentary,

http://www.iclklamberg.com/Statute.htm#_ftn318, 18.02.2012.
155 Ibidem.
156 Ibidem.
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III. CRIME OF FORCED MARRIAGE IS NOT A COGNIZABLE CRIME AGAINST
HUMANITY UNDER ARTICLE 7(1)(K).
52. The acts of Womba Tulga are not to be qualified as a crime against humanity as defined in
Article 7(1)(k). Here, Special Courts for Sierra Leone definition of forced marriage is
unsound (1), forced marriage does not meet elements of crime against humanity (2) and an
assumption that a forced marriage constitutes crime against humanity would violate principle
of legality (3).
1) Special Courts for Sierra Leone definition of forced marriage is unsound.

53. Special Courts for Sierra Leone definition of forced marriage that is to be applied also in
current proceedings before the ICC is unsound.
54. Firstly, the Appeals Chamber of SLSC briefly reviewed the jurisprudence of other international
tribunals which demonstrated that a wide range of acts, including sexual crimes, had been
recognized as other inhumane acts. These included forcible transfer, forced undressing of
women and marching them in public, forced disappearance, beating, and sexual violence, to
name but a few. 157 Secondly, Tribunal decided that endured physical injury by being subjected
to repeated acts of rape and sexual violence, forced labour, corporal punishment, and
deprivation of liberty, all of these crimes, which those women experienced, deserves
condemnation and together constitutes crime of forced marriage. 158 Although heinous, this
suffering cannot be attributed to forced marriage as defined in international law. Each of these
sources of harm may occur in the context of forced marriage but they are attributable also to
other offences. Rape, sexual violence, forced labour, corporal punishment, and deprivation of
liberty are all separate crimes under international law. Combination of these offences does not
constitute a distinct crime. 159 The act of forced marriage involves two simple elements: marriage
(actus rea element) and knowledge that the other party to the union has not provided consent
(mens rea element). The measure of harm and gravity in the context of this simple act of
marriage without consent is distinctly different from the degree of harm and gravity that must be
157 Prosecutor v. Staki , ICTY, Appeals Chamber, Judgment, 22 March 2006, IT-97-24-A, [Staki]; Prosecutor v.
Akayesu , ICTR, Trial Chamber, Judgment, 2 September 1998, ICTR-96-4-T [Akayesu]; Prosecutor v. Kvoka et al. ,
ICTY, Trial Chamber, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, IT-98-
30-PT,[ Kvoka].
158 Prosecutor v. Brima, Kamara and Kanu, Special Court for Sierra Leone, Trial Chamber II, Judgment, 20 June
2007, SCSL-2004-16-T, para. 199[AFRC case].
159 N. A. Goodfellow, The Miscategorization of Forced Marriage as a Crime against Humanity by the Special Court
for Sierra Leone, International Criminal Law Review 11, 2011, p. 862, [Goodfellow].
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demonstrated so as to qualify as a crime against humanity. Furthermore, it should be noted that
the majority of nations have not criminalized the act of forced marriage. 160In result, Prosecution
were to charge forced marriage separately from rape, forced labour and other acts that the
Appeals Chamber cited to satisfy gravity and harm, it would be left with a basic form of forced
marriage that is manifestly inadequate in terms of gravity and harm. 161 The Chambers attempt
to recognize the broader spectrum of crimes committed against women has instead eroded
judicial developments in this regard. The difficulty with labelling what is otherwise sexual
slavery, rape, enslavement, and torture as marriage is that it distorts and conceals the nature of
the victims experience. 162
55. Prosecuting enslavement, sexual slavery, forced pregnancy, or rape as separate crimes
recognizes the specific nature of those offenses. If these crimes are all instead encompassed in
the term marriage, marriage may be used as a veil for criminal offenses. The power of
marriage as an unassailable institution is apparent in the ongoing battle to have marital rape
recognized as a crime.
56. Prosecuting forced marriage separately from other forms of sexual violence keeps it from
being distorted into a crime of sexual violence against women. 163 Consequently, crime of
forced marriage as defined above does not fulfil elements of other crime against humanity, as
indicated in art. 7 (1) (k).
2) Properly defined forced marriage does not meet elements of crime against
humanity.
57. In each situation, ICC should examine whether forced marriage satisfied the elements of crimes
considered to be other inhumane acts. 164 The objective of the category was to enable the
prosecution and punishment of atrocities which are so abhorrent that they shock our sense of
human dignity. 165
160 Goodfellow, p. 859.
162 B. Toy-Cronin, What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime against
Humanity, 16 Colombia Journal of Gender and Law, 2010, p. 575, [Toy-Cronin].
163 Toy-Cronin, p. 578.
164 N. Jain, Forced Marriage as a Crime against Humanity, 6 Journal of International Criminal Justice 1013, 2008,
p.1020.
165 A. Cassese, Crimes against Humanity in A. Cassese, P. Gaeta, and J. Jones (eds.), The Rome Statute of the
International Criminal Court: A Commentary, 2002, p. 345.
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58. The Special Court for Sierra Leone itself, in the case of Prosecutor v. Sesay, Kallon and Gbao,
observed that the crime of other inhumane acts is a residual category for serious acts which are
not otherwise enumerated as crimes against humanity but which nevertheless require proof of
the same general requirements. 166 The test required that the act or omission: (i) inflict greater
suffering, or serious injury to body or to mental or physical health; (ii) are sufficiently similar in
gravity to the acts referred to in Article (2)(a) to Article (2)(h); and (iii) the perpetrator was
aware of the factual circumstances that established the character of the gravity of the act. 167
59. Regarding the second premise, ICC should determine i) whether or not the conduct was carried
out in a systematic manner and on a large scale; and (ii) the seriousness of the acts as compared
with the other offences enumerated. 168 The subjective or mental elements of the crimes require
the mens rea of the underlying crime (i.e., murder or rape) as well as an awareness of the
existence of a widespread or systematic practice. 169
60. Tribunals have regularly limited conduct within the purview of other inhumane acts as acts or
omissions that (i) do not fall within any other sub-clause of crimes against humanity; (ii) that are
sufficiently similar in gravity to other enumerated crimes; (iii) that cause deliberate mental or
physical suffering to the individual; and (iv) occur within the context of a widespread or
systematic campaign. 170 The third element requires suffering or harm to be inflicted
deliberately. This involves an assessment of both the perpetrators mens rea as well as the actual
harm suffered by the victims. 171 In relation to mens rea the commonly expressed requirement is
that intention to inflict inhumane acts is satisfied where the offender, at the time of the act or
omission, had the intention to inflict serious physical or mental suffering or to commit a serious
attack upon the human dignity of the victim. 172 Moreover, crime within a national or domestic
jurisdiction should be distinguished from that within the international arena. For example, a
166 Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Special Court for Sierra Leone, Trial
Chamber, Judgment, 2 March 2009, SCSL-04-15-T, para.165.
167 Elements of Crimes, art. 7 (1) (k).
168 Prosecutor v. Kupreskic et al., ICTY, Trial Chamber, Judgment, 14 January 2000, IT-95-16-T,para. 566,
[Kupreskic].
169 A. Cassese, International Criminal Law, 2 nd ed., 2008, p.115, [Cassese].
170 Prosecutor v. Mladen Naletilic aka "Tuta", Vinko Martinovic aka "Stela", ICTY, Trial Chamber, Judgment, 31
March 2003, IT-98-34-T, para. 247; Prosecutor v. Dario Kordic, Mario Cerkez , ICTY, Appeals Chamber, Judgment,
17 December 2004, IT-95-14/2-A, para. 117, [Kordic, Cerkez].
171 Ibidem.
172Prosecutor v. Stanilav Galic , ICTY, Trial Chamber, Judgment and Opinion, 5 December 2003, IT-98-29-T, para.
154.
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murder is not a crime against humanity no matter how grave or serious, unless it is committed as
part of a widespread or systematic attack.173
61. All of this gives firm evidence, that properly defined crime of forced marriage does not fall
under the definition of other crimes against humanity. First of all, that crime is not sufficiently
similar in gravity to other crimes against humanity and its seriousness cannot be compared.
Secondly, the perpetrator could have not been aware that its conduct constitutes the most serious
crime against humanity and is a part of a widespread and systematic attack. Moreover, even if
forced marriage is a crime recognized by national legislation, it does not mean per se, that it is
a crime under international criminal law. What is more, not every national legislation recognize
forced marriage as a crime, therefore consequently if there is lack of consent on national level, it
cannot be claimed that forced marriage is a universally recognized crime of the greatest
gravity.
3) Assumption that a forced marriage constitutes crime against humanity would

violate principle of legality.
a) Potential violation of principle nullum crimen sine lege.
62. One critical element of criminal liability and punishment is the need to identify the source of
law on which a judicial body can identify liability and impose criminal sanction. 174 In AFRC
case, Prosecution submitted that the crime was charged as an Other Inhumane Act, which
forms part of customary international law, and therefore, does not violate the principle of
nullum crimen sine lege . In result, the Prosecution submits that the only question on appeal is
whether forced marriage satisfies the elements of Other Inhumane Acts.175
63. In satisfying itself that forced marriage fell within the other inhumane acts category of
criminal conduct, it considered legality issue satisfied. In other words, there was no examination
of legality specific to forced marriage that went beyond the legality of the residual category of
other inhumane acts as a crime against humanity. 176 But certainly, categorization of forced
marriage as an other inhumane act does not satisfy principle legality. The Appeals Chamber of
173 Tadi, paras. 645-649.
175 AFRC case, para. 197.
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the ICTY recognized the potential legality issues raised by other inhumane acts when it stated
that it considers that the potentially broad range of the crime of inhumane acts may raise
concerns as to a possible violation of the nullum crimen principle.177
b) Human rights instruments are not sufficient to establish the offence.
64. The elements of the offence must be clear and in accordance with fundamental principles of
criminal liability. That means that:
(ii) perpetrator should have been capable of reasonable ascertainment at the time of
commission, that the conduct could amount to an offence in international criminal law
(iii) There must be evidence of general agreement by the international community that breach of
the customary law rule would or would now, entail international criminal liability for individual
perpetrators, in addition to the normative obligation on States to prohibit the conduct in
question under their domestic law. 178
65. In the Stakic decision, Tribunal decided that, violations of human rights instruments do not
necessarily amount to norms recognized by international criminal law.179 This reflects the same
position taken by Justice Robertson in his dissent in the matter of Prosecution v. Sam Hinga
Norman that there must be evidence (or at least inference) of general agreement by the
international community that breach of the customary law rule would or would not, entail
international criminal liability for an individual perpetrator. 180 The identification of an
international human rights law rule does not automatically give rise to a criminal prohibition
enforceable before an international criminal court or tribunal. 181
66. The norm or rule must satisfy a second stage test. It must have the qualities for a serious
criminal prohibition, which means the elements of the offence must be clear and must include
the mental element of a guilty intention. 182 What is more, an overwhelming preponderance of
states, courts, conventions, jurists must have intended this rule to have penal consequences for
177 Kordic, Cerkez, para. 117.
178 Prosecutor v. Sam Hinga Norman, Special Court for Sierra Leone, Appeals Chamber, Dissenting Opinion by
Justice Robertson on Decision on Preliminary Motion Based on Lack of Jurisdiction, 31 May 2004, SCSL-2004-14-
AR72(E), para. 17, [Norman].
179 Staki, para. 721.
180 Norman, para. 17.
181 Cassese, p. 14.
182 Norman, para. 20, Tadi, para. 95.
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individuals brought before international courts.183 As indicated in previous paragraphs, in many
countries forced marriage is not even recognized as a crime, therefore definitely, even if there
are human rights instruments which prohibit forced marriages, it does not mean that such
conduct amounts to an international crime.
c) Potential violation of principle of non retroactivity.
67. The principle of non-retroactivity means that a law may not criminalize an act or omission
committed prior to the laws enactment, unless such rules are more favourable to the accused. 184
It follows that courts may only apply substantive criminal rules that existed at the time of
commission of alleged crime. 185 The European Court of Human Rights has affirmed its
positions and elaborated on its approach in the recent decision of Kafkaris v. Cyprus186 In this
decision, the ICC held that the definition of both the offence and penalty must be accessible and
foreseeable.187 In the European Courts approach, penalization of a conduct must be reasonably
foreseeable by the addressees.188
68. Crime of forced marriage does not exist as crime against humanity in international criminal
law and furthermore, any potential perpetrator could not have predicted that he or she would be
tried before ICC for such conduct. In result, it would be a violation of principle of non
retroactivity.
d) Potential violation of principle of specificity.

69. The ICTY Trial Chamber in Prosecutor v. Kupreskic et al. noticed that the crime of other
inhumane acts subsumes a potentially broad range of criminal behaviour and may well be
considered to lack sufficient clarity, precision and definiteness, therefore it might violate the
fundamental criminal law principle of nullum crimen sine lege creta.189 The inability to identify
183 Ibidem.
184 International Covenant on Civil and Political Rights , G.A. Res. 2200A (XXI), 21 U.N. GAOR, 21 st Sess., Supp.
No. 16 at 52, U.N. Doc. A/6546, 1966, entered into force 23 March 1976, art. 15.
185 Cassese, p. 44.
186 Kafkaris v. Cyprus, 49 ECHR, ser. A, 2008, para. 35.
188 Ibidem.
189 Kupreskic, para. 719
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a foreseeability of criminal sanction on the part of the accused or any general agreement by the
international community that the act in question would result in international criminal liability
constitutes violations of principle of specificity. 190
70. Under the principle of specificity, criminal rules must be as detailed as possible, so as to clearly
indicate to their addressees the conduct prohibited, namely, both the objective elements of the
crime and the requisite mens rea. The principle is aimed at ensuring that all those who may fall
under the prohibitions of the law know in advance which specific behaviour is allowed or
proscribed. They may thus foresee the consequences of their actions and freely choose either to
comply with, or instead breach legal standards of behaviour. 191
71. As it was many times proved before, the perpetrators could have not been aware that they
conduct may bring international criminal responsibility. In Pontasia, practice of arranged
marriage is widespread and common192 and such acts are neither criminalized nor penalized.
Therefore, in the context of lack of international criminal law, which would prohibit such
practices, perpetrators could not have expected any criminal persecution.
190 Ibidem.
191 Cassese, p. 54.
192 Facts, para. 3.
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SUBMISSIONS
The Prosecutor of the ICC requests the Appeal Chamber to adjudge that:
a) the accused Womba Tulga shall not be charged for acts that occurred in the territory of
Edom,
b) the proceedings before the Commission render the case inadmissible, and
c) crime of forced marriage is not a cognizable crime against humanity under Article 7(1)(k).
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JUDGE COMMENTS
Scores of our memoranda were tough proof that the judges are very strict about the rules
concerning the format of the text. Each breach of rules concerning the format of the text may
cause loss of specific amounts of points, even if it considers footnotes, heads, titles or
pagination. It is very useful to have it re-read by someone else from the team considering only
formatting issues before sending the memorandum. Avoiding penalties shall help the final
score.
In your argumentation, precision and good usage of authorities is vital. The judges were
focused on distinction between general statements and argumentation specified to details, they
emphasized that for sake of clarity of the text. Besides the jurisprudence, it is good to use
plenty of authorities in doctrine, especially concerning general issues. Also travaux
preparatoires are very useful to find the background, basics and history of the ICC Statue to
interpret some articles.
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TEAM ...
COUNSEL FOR THE VICTIMS MEMORIAL
MOOT COMPETITION
20 FEBRUARY 2013
WORD COUNT: ...
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APPEALS CHAMBER
SITUATION IN EDOM
COUNSEL FOR THE VICTIMS MEMORIAL
AUTHOR: WOJCIECH GIEMZA
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TEAM ...
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Victims Counsel Memorial
List of abbreviations
CIL Customary International Law
ECJ European Court of Justice
ICCS The International Criminal Court Statute (The Rome Statute)
ICTY International Criminal Tribunal for the former Yugoslavia
PNA Pontasian National Army
PTC Pre-Trial Chamber of the ICC
SA TRC South Africa Truth and Reconciliation Commission
TRC Truth and Reconciliation Commission of Pontasia
UN United Nations
UNHCHR A/HRC/18/CRP.30 (12 March 2012) of UN HC for Human Rights
VCLT Vienna Convention on the Law of Treaties 1969
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Index of Authorities
Articles:
a) Clark J.N., Peace, Justice and the International Criminal Court: Limitations and Possibilities,
Journal of International Criminal Justice, Vol. 9, Issue 3, pp. 521-545.
b) Deen-Racsmany Z., The Nationality of the Offender and the Jurisdiction of the International
Criminal Court, The American Journal of International Law, Vol. 95, No. 3 (Jul., 2001), pp. 606-
623.
c) DeFrancia C., Due Process in International Criminal Courts: Why the Procedure Matters,
Virginia Law Review, Vol. 87, No. 7 (November 2001), pp. 1381-1439.
d) Minow M., Between Vengeance and Forgiveness: South Africa's Truth and Reconciliation
Commission, Negotiation Journal, October 1998, pp. 319-355.
e) O'Keefe R., The Grave Breaches Regime and Universal Jurisdiction, Journal of International
Criminal Justice, Vol. 7, Issue 4, pp. 811-831.
f) O'Keefe R., Universal Jurisdiction: Clarifying the Basic Concept, Journal of International
Criminal Justice, Vol. 2, Issue 3, pp. 735-760.
g) Paust J., The International Criminal Court does not have complete jurisdiction over customary
crimes against humanity and war crimes, University of Houston Public Law and Legal Theory
Series 2010-A-15, http://ssrn.com/abstract=1598440, retrieved 8.02.2013.
h) Philippe X., The Principles of Universal Jurisdiction and Complementarity: How do the Two
Principles Intermesh?, International Review of the Red Cross, Vol. 88, No. 862 (June 2006), pp.
385-389.
i) Vora J.A. and Vora E.,The Effectiveness of South Africa's Truth and Reconciliation
Commission: Perceptions of Xhosa, Afrikaner, and English South Africans, Journal of Black
Studies, Vol. 34, No. 3, pp. 301-322.
Other publications:
a) Aquaviva G., Forced Displacement and International Crimes, Background Paper for UNHCR,
http://www.unhcr.org/4e0344b344.pdf, retrieved 9.02.2013.
b) Banks A.M., Sexual Violence and International Criminal Law: An Analysis of Ad-hoc
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Tribunal's Jurisprudence & The International Criminal Court's Elements of Crimes,
http://web.wm.edu/law/faculty/documents/banks-969-7375.pdf, retrieved 15.02.2013.
c) Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-
General of 25 January 2005 pursuant to Security Council Resolution 1564,
http://www.un.org/news/dh/sudan/com_inq_darfur.pdf, retrieved 10.02.2013.
d) The Principle and Practice of Universal Jurisdiction, Palestinian Centre for Human Rights
2010 Report, http://pchrgaza.org/files/Reports/English/pdf_spec/PCHR-UJ-BOOK.pdf, retrieved
14.02.2013.
Judgements:
ECJ:
a) Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH, C-

54/96 [1997] ECR I-4961, [1998] 2 CMLR 237.
b) Umwelanwalt von Krnten and Alpe Adria Energia SpA, C-205/08 [2009] I-11525.
ICTR:
a) Akayesu Case, No. ICTR-96-4-T, 2 September 1998.

b) Furundija Case, No. ICTR-95-17/1-T.
c) Musema Case, No. ICTR-96-13, para. 965.
d) Muvunyi Case, No. ICTR-2000-55A-T, Judgment 12 September 2006.
e) Semanza Case, No. ICTR-97-20.
ICTY:
a) Blagojevi & Joki Case, No. IT-02-60.

b) Foca Case, IT-96-23 and IT-96-23/1.
c) Martic Case, No. IT-95-11-R61, Trial Chamber Decision 8 March 1996.
d) Krajinik Case, No. IT-00-39.
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e) Kunarac et al. Case, No. IT-96-23 and IT-96-23/1 A.
f) Popovi et al. Case, No. IT-05-88.
ICJ:
a) Belgium v. Spain, second phase (5.02.1970) ICJ, rep. 4.
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Statement of Facts
Factual background
1. This case concerns alleged crimes against humanity committed on the territory of the Republic of
Pontasia and the Kingdom of Edom at the turn of 2011 and 2012.
2. The Republic of Pontasia is not a state party to the Rome Statute. The Kingdom of Edom is aparty to
the Statute since 2005. Both neighbouring countries are parties to the UN Charter, the1949 Geneva
Conventions, and the Additional Protocols thereto of 1977, as well as the to International Covenant on
Civil and Political Rights, and the Vienna Convention on the Law of Treaties. Pontasia and Edom do
not have a bilateral extradition treaty.
3. The population of Pontasia consists of two ethnic groups: the Anots (80 percent), and the Hadads (20
percent). Both groups share similar religious beliefs and customs, including the widespread practice of
arranged marriage where parents select their children's spouses in consent with the parents of the
spouse.
4. In October 2011, a rebel group of about 100,000 Hadads of Pontasian nationality, which called
themselves the Hadad Liberation Army (HLA), under the command of Womba Tulga, the former
officer of Pontasian National Army, launched a series of coordinated attacks against several major
Pontasian cities with the object of forming an independent Hadad-controlled State in the eastern region
of Pontasia. After weeks of intense fighting over the controlled cities, the Pontasian National Army
gained advantage, resulting in Womba Tulgas ordering the troops to seize about ten thousand Anot
children of the age between 10 and 15 and to conscript them into HLA. We shall replenish the ranks
of our fallen comrades with Anot boys and girls, he said.
5. The Anot girls and teenage women were abducted and forcibly taken as wives. By psychological
manipulations of their feelings, the husbands openly staked his claim over the wives. They were
expected to carry out all the functions of a wife household chores, maintenance, food preparation,
child rearing, farming, sexual obedience. The penalty for not fulfilling these tasks was severe beating,
sexual abuse, physical batter during pregnancies, psychological terrorism and even death 193.
6. In January and February 2012, several hundreds of Anot bush wives escaped from their HLA
husbands and made their way across the border to Edom. With Womba Tulgas written approval, the
193 UNHCHR Report: A/HRC/18/CRP.30 (March 12, 2012), at 3.
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HLA soldiers (including several of the recently conscripted Anot juvenile soldiers) committed dozens
of armed raids into Edom to re-acquire the escaped bush wives. By the end of February, most have
been returned to their HLA husbands. This set of events would be called henceforth the Edom
situation.
7. With the assistance of a U.N. mediation team, the President of Pontasia, Manfred Bingham, and HLA
leader Womba Tulga met at the United Nations Headquarters in New York signed on 25th March 2012
two side Agreement, which was approved a week later by the Pontasian Parliament and the Council of
HLA Rebel Leaders. The 25March Agreement provided for: (1) the immediate cessation of hostilities,
(2) the phased disarmament and eventual disbanding of the HLA, (3) the immediate release of all
abducted children and termination of forced marriages; (4) the enactment of domestic legislation to
promote the civil, economic, and social rights of the Hadad population of Pontasia; and (5) the
expedited establishment of a Truth and Reconciliation Commission modelled on that of the South
Africa Truth and Reconciliation Commission, and headquartered at the city of Quarth in the geographic
center of Pontasia. With the approval of the U.N. Security Council, a U.N. monitoring mission was
dispatched to Pontasia to facilitate implementation of the 25 March Agreement. On April 1, the
Pontasian Parliament enacted and President Bingham signed into law the 25 March Agreement
Implementation Act Consistent with the 25 March Agreement, the Act contained the provisions to
promote the civil, economic, and social rights of the Hadad population. It authorized the President of
Pontasia to appoint a nine-member Truth Commission headquartered in Quarth, with five Anot
members and four Hadad members possessing high moral character, impartiality and integrity. It also
provided that decisions of the Truth Commission relating to the grant of a pardon are binding and not
subject to appeal to the courts of Pontasia. TRC would hold public hearings and publish findings
regarding perpetrators. The focus of the Truth Commission was to be on the crimes against humanity
(defined the same as in the ICC Statute) committed against abducted boys and girls by the HLA, and
war crimes in internal armed conflict committed by Pontasian National Army troops during the battle
to retake the three northern cities.
8. Under the Truth Commission provisions of the 25 March Agreement, any member of the HLA who
publicly confesses his crimes against humanity before TRC and does community service for one year,
shall be granted full pardon for the acts related to the conflict. Such persons shall, however, be
permanently prohibited from holding public office or serving in the military forces. Anyone who does
not avail themselves of the opportunity to confess within six months from the signature of the Peace
Agreement is to be subjected to a prosecution with a penalty ranging from 10 years to the capital
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punishment.
9. On 17th April 2012, Womba Tulga travelled to Quarth and availed himself of the opportunity to confess
before the newly established Truth Commission. At the conclusion of Tulgas public confession, which
lasted three days, TRC published its unanimous findings that (a) Tulgas statement was sufficiently
detailed, comprehensive and truthful, (b) his confessed acts constituted war crimes and crimes against
humanity related to the large-scale recruitment and the use of child soldiers and to widespread acts of
forced marriage, and (c) Tulga had expressed sincere remorse and contrition for his acts, especially
regarding the abduction and mistreatment of Anot boys and girls by soldiers under his command. TRC
therefore certified Tulga for a pardon conditioned on one year of public service, and proclaimed that he
shall never be permitted to hold public office or serve in the military in Pontasia. Following Womba
Tulgas example, during the next five months, most of the other HLA members turned over their arms
to the United Nations Monitoring Mission, released their bush wives, and traveled to Quarth to
confess their crimes before the Truth Commission.
10. On 30 March 2012, the Kingdom of Edom referred the situation of HLA atrocities in Edom since 1
January 2012 (the Edom situation) to the ICC.
Procedural background
The procedural dates are as follows:
12 March 2012 Report of the UN High Commissioner for Human Rights on bush wife or rebel
wife194 phenomenon;
30 March 2012 Kingdom of Edom referred the situation of HLA atrocities in Edom to the ICC;
25 April 2012 The ICC Prosecutor announced his intent to start an investigation of Edom
situation;
30 May 2012 The Pre-trial Chamber issued an arrest warrant for Womba Tulga, based on the
submitted application of the Prosecutor, finding that there were reasonable grounds to believe that he is
criminally responsible under Article 25(3) (b) and Article 28 of the ICC Statute for acts constituting
crimes against humanity committed in the territory of Edom, namely (1) the crime of sexual slavery
under Article 7(1)(g), and (2) the crime of forced marriage under Article 7(1)(k) of the Statute;
194 Ibidem.
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7 June 2012 Womba Tulga made a voluntarily appearance before the ICC to contest the ICCs
jurisdiction;
1 August 2012 Representatives of the ICC Office of the Prosecutor, the Legal Representative for
Victims (the abducted Anot boys and girls) and Counsel for Womba Tulga submitted briefs and made
oral presentations before the Pre-Trial Chamber;
15 September 2012 The Pre-Trial Chamber found and concluded that forced marriage is not a
separate cognizable crime against humanity under Article 7(1)(k) of the ICC Statute, upheld the count
of sexual slavery under Article 7(1)(g) of the Statute, found without merit the Defense argument that
the alleged acts that occurred in the territory of Edom in January and February 2012 may not serve as a
basis of jurisdiction for Defendants alleged crimes against humanity under Article 12(2) (a) and
Article 14(1) of the ICC Statute, found that the proceedings against Womba Tulga before Pontasian
Truth and Reconciliation Commission do not render the case inadmissible under the Articles 17 and 20
of the ICC Statute.
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Statement of issues
1) Whether the crime of forced marriage is a cognizable crime against humanity under Article 7(1)(k)
of the ICCS;
2) Whether the alleged acts that occurred in the territory of Edom are sufficient to serve as a basis of
jurisdiction for alleged crimes against humanity in Pontasia under Article 12(2)(a) and Article 14(1) of
the ICCS;
3) Whether the case is inadmissible because the proceedings of the Republic of Pontasias Truth and
Reconciliation Commission preclude trial before the ICC under Articles 17 and 20 of the ICCS.
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Summary of arguments
Arguments on Jurisdiction
I. The acts that occurred in the territory of Edom are sufficient to serve as a basis of jurisdiction
for alleged crimes against humanity in Edom under Article 12(2)(a) and Article 14(1) of the ICCS
and for alleged crimes against humanity in Pontasia under the principle of universal jurisdiction
and connection with crimes in Edom:
1. As the Kingdom of Edom is a state party to the ICCS, the crimes committed on its territory are under
the jurisdiction of the ICC under the Article 12(2)(a) of the ICCS.
2. As the Kingdom of Edom is a state party to the ICCS, it was able to refer the case under the
Article 14(1) of the ICCS.
3. As the crimes committed on the territory of Pontasia are inseparably connected with those committed
on the territory of Edom, they also should be examined by the Court.
4. The gravity of the crimes committed on the territory of Pontasia and 'cause and effect' connection with
crimes committed in Edom encourages to investigate them on the basis of universal jurisdiction
principle of CIL.
a) Strong connection between the crimes ratione personae, ratione temporis, ratione loci, ratione
materiae.
b) The universal jurisdiction principle.
II. The case is admissible under Articles 17 and 20 of the ICCS, irrespectively of the proceedings
before TRC:
1. The case is not inadmissible under the Article 17(1) of the ICCS.
2. The proceedings before TRC do not meet the conditions from the Article 17(2) of the ICCS.
a) TRCs proceedings are not impartial and independent as stated in the Article 17(2)(c) of the
ICCS.
b) TRC is not making judgements concerning perpetrators of the alleged crimes.
c) The intent of TRC is the reconciliation of Pontasian society and not bringing a person to justice
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as stated in the Article 17(2)(c).
3. TRC is not a court as stated in the Article 20 of the ICCS, therefore ne bis in idem rule is inapplicable
in this case.
a) Even if TRC could be considered as a court, its proceedings were not conducted in accordance
with the rules of due process as in the Article 20(3)(b) of the ICCS.
b) There is a possibility that the intent of Pontasian officials was to shield the perpetrators as in the
Article 20(3)(a) of the ICCS.
4. There is no possibility of appealing to any court from the granting of a pardon by TRC.
5. South Africa Truth and Reconciliation Commission, as the other similar bodies exemplary for TRC, are
not cognizable courts.
Argument on Merits
III. Forced marriage is a cognizable crime against humanity under the Article7(1)(k) of the ICCS,
alongside with other crimes committed during the situation:
1. Characteristics of the crime fulfils all elements of crime described in the Article 7(1)(k) of the ICCS.
a) The perpetrator inflicted great suffering or serious injury to body or to mental or physical
health, by means of an inhumane act.
b) Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the
Statute.
c) The perpetrator was aware of the factual circumstances that established the character of the act.
d) The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
e) The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack directed against a civilian population.
2. Other crimes against humanity cognizable under the Article 7(1) occurred on the territory of Edom and
on the territory of Pontasia. Those are the following:
a) Forcible transfer of the population under the Article 7(1)(d)
b) Enslavement under the Article 7(1)(c)
c) Rape, sexual slavery and other forms of sexual violence of comparable gravity under the Article
7(1)(g)
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3. Forced marriage is a specific crime against humanity committed both on the territory of Edom and on
the territory of Pontasia.
4. Furthermore, a crime of genocide, meaning forcibly transferring children as described in the Article
6(e), has been committed on the territories of Edom and Pontasia.
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ARGUMENTS
Arguments on Jurisdiction
I. The alleged acts that occurred in the territory of Edom are sufficient to serve as a basis to regard
them as crimes against humanity in Edom under Article 12(2)(a) and Article 14(1) of the ICCS
and for alleged crimes against humanity in Pontasia under the principle of universal jurisdiction
and in connection with crimes in Edom.
1. As the Kingdom of Edom is a party to the ICCS, the crimes committed on its territory are
under the jurisdiction of the ICC under the Article 12(2)(a) of the ICCS.
The Kingdom of Edom is a state party to the Rome Statute since 2005. 195 As stated in the Article 12(1)
of the Statute, becoming a State Party thereby means the acceptance of the jurisdiction of the Court
with respect to the crimes 196 against humanity, genocide and other listed in the Article 5 of the ICCS.
As it has been stated in the Article 12(2)(a), the Court may exercise its jurisdiction if (...) the State on
the territory of which the conduct in question occurred 197 is a Party to the Statute. Therefore the
criteria concerning the actions on the territory of Edom are met.
2. As the Kingdom of Edom is a party to the ICCS, it was able to refer the case under the
Article 14(1) of the ICCS.
As the Kingdom of Edom respects treaties that are binding the State, it referred the case to the ICC as a
state party. As the Article 14(1) states, a state may refer to the Prosecutor a situation in which one or
195 Statement of facts, para. 2.
196 Article 12(1) of the ICC Statute.
197 Article 12(2)(a) of the ICC Statute.
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more crimes within the jurisdiction of the Court appear to have been committed requesting the
Prosecutor to investigate the situation for the purpose of determining whether one or more specific
persons should be charged with the commission of such crimes 198. As the alleged crimes fall within
the jurisdiction of the ICC under the Article 13(a) of the ICCS (as it will be more specifically described
in the further part of the Memorial), the Prosecutor was obliged to investigate the situation. What is
important, the Edom situation, referred by Edom to the ICC, is only a single element of the extended
and permanent conduct of crimes committed not only on the territory of the Kingdom, but also outside
of the state.
3. As the crimes committed on the territory of Pontasia are intrinsically connected with those
committed on the territory of Edom, they should be also examined by the Court.
The crimes of forced marriage, forcible transfer etc., committed on the territory of Edom, would not
have occurred if other crimes had not been committed earlier on the territory of Pontasia. Kidnapping
ten thousand of Anot children from Pontasian villages, enrolling boys into armed forces of HLA and
forcing girls to serve as bush wives to their kidnappers were the cause of the escape of female group
to Edom199. To examine the case, it is necessary to investigate not only the Edom situation, but the
whole sequence of events, which occurred also on the territory of Pontasia, although that State is not a
State Party to the ICCS200. It would be therefore proper if the Republic of Pontasia as a State Party to
the UN Charter and 1949 Geneva Conventions cooperated with the Court in the investigation willingly
and actively.
4. The gravity of crimes committed on the territory of Pontasia and 'cause and effect'
connection with crimes committed in Edom encourages to investigate them on the basis of CIL
principle of universal jurisdiction.
199 Statement of facts, paras 5-6.
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a) Strong connection between the crimes ratione personae, ratione temporis, ratione loci, ratione
materiae.
The investigation concerning crimes against humanity in Pontasia should be just a preparation for the
Prosecutor to set charges if the alleged crimes occurred. As Pontasia is not a State Party to the ICCS, it
should voluntarily refer the case to the Court under the Article 12(3). As Womba Tulga has only
Pontasian nationality, mentioned criterion cannot enable to exercise the Court's jurisdiction in the
case201. Furthermore, also the UN Security Council has the power to refer the case concerning crimes
out of the ICC jurisdiction according to the territorial or national criteria as described in the Article
13(b) then the Court would be able to exercise its jurisdiction on the case. Moreover, irrelevant of
those two possibilities, the Court should exercise its jurisdiction over the alleged crimes committed in
Pontasia due to the fact that they are inseparably connected with the crimes being within the
jurisdiction of ICC: the perpetrators, the victims, relations between them and other conditions are
exactly the same, therefore the same ratione materiae (forced marriage, forcible transfer), ratione
personae (both victims and perpetrators) and ratione temporis (January-February 2012) should be
viable and adequate. The only difference is the territory itself, but ratione loci as the only criteria of
admissibility seems vague and biased in this case. As both states are the neighbouring ones, it would be
sprightly unjust to consider only the specific part of all the atrocities committed to the victims and
excluding the rest of them merely because of the territorial criterion as such.
b) The universal jurisdiction principle.

The Court shall consider the basic and vital principle of customary international law - the universal
jurisdiction principle202. The obligation to prosecute such serious international crimes is a norm
unanimously granted with iuris cogentis status. What is more, Edom as a State Party of the ICCS is
bound to extend to them the protection of the law and assumes obligations concerning the treatment to
be afforded them203, as it is stated in international law doctrine. Therefore the nationals of Pontasia
201 Article 12(2)(b) of the ICC Statute; Deen-Racsmany Z., The Nationality of the Offender and the Jurisdiction of the
International Criminal Court, The American Journal of International Law, Vol. 95, No. 3 (Jul., 2001), pp. 606-623.
202 O'Keefe R., Universal Jurisdiction: Clarifying the Basic Concept, Journal of International Criminal Justice, Vol. 2,
Issue 3, pp. 735-760.
203 Belgium v. Spain, second phase (5.02.1970) ICJ, rep. 4, para. 33: http://www.icj-cij.org/docket/files/50/5387.pdf,
retrieved 12.02.2013.
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who entered to Edom territory seeking for freedom from their captivators, had to be protected as
nationals of Edom. As Pontasia is a State Party to other treaties concerning the protection of the people
from such atrocities, like the UN Charter and 1949 Geneva Conventions, it is reasonable and justified
to allow the Court to proceed with the investigations, regardless of the nationality of the perpetrator or
the territory204. In this case, when the State is not punishing the perpetrators because of the numerous
issues to be described further, the universal jurisdiction is applicable 205. Lack of ability or will of the
State to prosecute the perpetrators of crimes against humanity cannot shield concerned persons from
their responsibility, as stated in Darfur case, which finally has been referred to the Court by the UN
Security Council after the Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary General of 2005 206. Universal jurisdiction is still being brought under discussion by
doctrine207 and often seems difficult to implement into practice 208.
II. The case is admissible under Articles 17 and 20 of the ICCS, irrespectively of the proceedings of
TRC:
1) The case is admissible under the Article 17(1) of the ICCS.
The Article 17(1) lists four cases in which the Court shall determine that the case is inadmissible: a) the
case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the investigation or prosecution; b) the case has been
investigated by a State which has jurisdiction over it and the State has decided not to prosecute the
person concerned, unless the decision resulted from the unwillingness or inability of the State
genuinely to prosecute; c) the person concerned has already been tried for conduct which is the subject
204 O'Keefe R., The Grave Breaches Regime and Universal Jurisdiction, Journal of International Criminal Justice,
Vol. 7, Issue 4, pp. 811-831.
205 The Principle and Practice of Universal Jurisdiction, Palestinian Centre for Human Rights 2010 Report, pp. 9-27.
206 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General
of 25 January 2005 pursuant to Security Council Resolution 1564, pp. 154-164.
207 Paust J., The International Criminal Court does not have complete jurisdiction over customary crimes against
humanity and war crimes, University of Houston Public Law and Legal Theory Series 2010-A-15, p. 3-16.
208 Philippe X., The Principles of Universal Jurisdiction and Complementarity: How do the Two Principles
Intermesh?, International Review of the Red Cross, Vol. 88, No. 862 (June 2006), pp. 385-389.
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of the complaint, and a trial by the Court is not permitted under conditions of Article 20(3): the another
court purposely shielded an accused person or did not conduct impartially and independently the due
process209; d) the case is not of sufficient gravity to justify further action by the Court 210. None of that
conditions has been met:
a. at the moment, the case of alleged crimes is neither under the investigation of any court of the Republic
of Pontasia nor of the Kingdom of Edom;
b. the case has not been investigated by judicial organs of the aforementioned States. The only
proceedings has been held by Pontasia Truth and Reconciliation Commission, which can be hardly
classified as the investigation. Even if that procedure would be described as investigation conducted by
the State, lack of any judgement or sanctions proves the unwillingness of the State to prosecute. More
precisely about the role of TRC will be stated further;
c. the person concerned (Mr. Womba Tulga) has not been tried for the conduct being the subject of
complaint. Mr. Womba Tulga did not stand before any court. His testimony before TRC and the
opinion of the Commission are to be perceived solely as a matter of proceedings. Same as in point 1(b)
above, even if that procedure could be classified as a conduct, both the pardon granted to Tulga and
lack of sanctions show that the purpose of those actions was not bringing him to the justice, but
shielding the accused from criminal responsibility for crimes falling within jurisdiction of the Court
and they were not conducted independently and impartially like the due process shall be. Therefore, the
Article 20(3) could be applied;
d. the gravity of the case is clearly sufficient to justify further action by the Court: the alleged crimes
against humanity and of genocide have to be examined necessarily.
With none of these four conditions met, the case is not inadmissible under the Article 17(1) of the
ICCS.
2) The proceedings before TRC do not meet conditions from the Article 17(2) of the ICCS.
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a) TRC proceedings are not impartial and independent as stated in the Article 17(2)(c) of the ICCS.
According to the Article 17(2)(c) of the Statute, the Court shall consider, having regard to the
principles of due process recognized by international law, whether proceedings were not or are not
being conducted independently or impartially, and they were or are being conducted in a manner
which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice 211.
The purpose and composition of TRC clearly show that, in fact, the proceedings differed from the
notion of due process recognized by international law. The nine members of TRC were appointed by
the President of Pontasia. There were no requirements concerning being a judge or even legal
knowledge, but high moral character, impartiality, and integrity etc. The other factor was the
ethnicity, in order to bring balance between both ethnic groups during the proceedings. The members
of the commission could not be called judges, as they are dependent from the President who appoint
and dismiss them212. The augmented risk occurs that they could be put under political pressure. The
proceedings before TRC were mainly public hearings of perpetrators who voluntarily testified about
their crimes and publishing findings regarding perpetrators, which is still far from formalized due
process which has established specific rights for the accused and for the victims. There were no
procedures concerning hearings of witnesses, victims or examining other evidence. As the procedure of
due process is vital for making a judgement213, TRC was neither independent nor impartial, and the
proceedings before the Commission were inconsistent with the rules of due process recognized by
international law.
b) TRC is not making judgements concerning perpetrators of the alleged crimes.

As it has been stated in point 1 above, the members of TRC cannot be regarded as judges. Therefore,
the decisions of TRC concerning the publication of findings regarding the perpetrators and granting a
pardon cannot be qualified as judgements. There is a difference between an opinion about truthfulness,
comprehensiveness and details of the perpetrator's statement, and a judgement concerning verification
211 Article 17(2)(c) of the ICC Statute.
212 Statement of facts, paras 7-8.
213 DeFrancia C., Due Process in International Criminal Courts: Why the Procedure Matters, Virginia Law Review,
Vol. 87, No. 7 (November 2001), pp. 1381-1439.
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of various evidence, finding elements of crime, guilt etc 214. The most striking is the fact that TRC
confirmed that Mr. Womba Tulga confessed acts constituted war crimes and crimes against humanity
related to large-scale recruitment and use of child soldiers and to widespread acts of forced marriage
and granted him a pardon. The only penalties were a year of public service and prohibition to hold any
office215. These sanctions are incomparable to the scale of crimes committed, not to mention that they
are not listed in the Article 77 of the ICCS, holding a catalogue of penalties for crimes within the
jurisdiction of the Court. The decision of TRC cannot be perceived as a judgement as the penalties
cannot be taken seriously as the only ones for the perpetrator of crimes against humanity. Although the
opinion of the Commission that Mr. Womba Tulga confessed to have committed such crimes, as he
also at present do not deny that fact, should be taken into consideration by the Court.
c) The intent of TRC is reconciliation of Pontasian society, not bringing concerned person to justice as
stated in the Article 17(2)(c).
As it has been stated before, the purpose, both composition and proceedings of TRC are quite different
to those of the court or any judicial body which main statutory aim is to bring an accused person to
justice. Factors and actions such as ethnic and moral criteria of the members, granting pardon to
perpetrators of serious crimes and public hearings have an intent to bring peace and stability to the
Pontasian society. The reconciliation for the nation affected by ethnic conflict and civil war should be a
priority as bringing the stability to the state discomposed by recent atrocities is crucial and not simple
to obtain due to the need for the engagement of authorities, prompt and precise actions and adequate
period of time to be reflected in the situation. However, the truth and justice cannot be put aside in the
name of peace. Genuine reconciliation cannot and should not be achieved by showing the truth as such
but also further punishment of those who were responsible for the actions is required. Even if the
testimony of Mr. Womba Tulga and his remorse are sincere, the penalty of one-year public service and
prohibition to hold public offices are inappropriate and inadequate. The reconciliation is always an
extremely difficult task to complete but this fact does not allow anyone to create a contradictory
distinction between peace and justice that in some situation may seem more simple to proceed with 216.
214 Minow M., Between Vengeance and Forgiveness: South Africa's Truth and Reconciliation Commission,
Negotiation Journal, October 1998, p. 324.
216 Clark J.N., Peace, Justice and the International Criminal Court: Limitations and Possibilities, Journal of
International Criminal Justice, Vol. 9, Issue 3, pp. 521-545, retrieved 13.02.2013.
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As the Commission did not aim to bring the accused to justice, it should not be treated and perceived as
a court as such.
3. TRC is not a court as stated in the Article 20 of the ICCS, therefore ne bis in idem rule is
inapplicable in this case.
a) Even if TRC could be considered as a court, its proceedings were not conducted in accordance with the
rules of due process as in the Article 20(3)(b) of the ICCS.
According to the Article 20 of the ICCS, ne bis in idem rule is applicable during the proceedings before
the Court. It is one of the most essential rules of due process. If the case has been subject to another
prior investigation by the Court or a State, it is inadmissible to the Court. This fact is viable in this
specific case. As it has been described in paragraph 2.1 of the Memorial, the conditions of the
consistency with rules of due process, independence and impartiality have not been met by proceedings
by TRC, as the Article 17(1)(c) refer sto the Article 20. Therefore, that premise does not render the
case inadmissible.
b) There is a possibility that the intent of Pontasian officials was to shield the perpetrators as in the
Analogically in paragraph 2.3 of the Memorial, it has been stated that TRCs objective was to reconcile
Pontasian society, and not to punish perpetrators. They have not been justly punished or even
condemned. The cause results from the essential and basic foundations of legal basis of TRC, namely
the provisions of 25 March Agreement. Its aim was probably to shield the perpetrators from criminal
responsibility before any court, as they were endangered by severe penalties. That is the prior reason
why actions followed by TRC are not to be seen as sufficient. Probably such provisions aimed at
bringing the peace as soon as possible and reconciling the Pontasians, but they should not protect
wrongdoers from the responsibility. Therefore, the decisions of TRC should not be treated as a
judgement and even if they are, they should be seen as an inappropriate effort to shield the person
concerned from criminal responsibility for crimes within the jurisdiction of the Court, as stated in the
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4. There is no possibility of the appeal to any court from the granting of a pardon by TRC.
In due process and judiciary system of lawful state one of the basic existing principles is a possibility of
appeal to higher judicial body. Provisions of 25 March Agreement excluded a possibility of appeal
from decisions of TRC regarding pardon given to the particular perpetrator. The decision, based on
vague and biased criteria, is likely to be influenced and corrupted by political influence, cannot be
verified or changed by any authority217. That serves as a subsequent example (besides the issues of the
procedure and judges) of procedural irregularity, existing between TRC and regular court. International
tribunals, for example European Court of Justice, when considering appeals from domestic courts, ,
they build their own definitions of the court or the body being able to request ECJ for ruling, frequently
quite wide-ranged and general218. The ICC have not created such a definition, but the Article 20 of the
ICCS included the word court, hence the clarification of the issue of the range of competences of
TRC has been provided and in this case that specific body is to be found inappropriate. At best TRC
could be described as a court-like judicial body, similar to South Africa Truth and Reconciliation
Commission, on which it was based. It has to be additionally admitted that , bearing in mind that both
are not courts, there still exist numerous differences between both of them.
5. South Africa Truth and Reconciliation Commission, as the other similar bodies exemplary to
TRC, are not cognizable courts.
TRC has been established for similar purposes and with similar structure to that of the South Africa
Truth and Reconciliation Commission, created after the end of apartheid. It was clearly the main model
institution for TRC219. Also South Africa TRC was not a court, but rather a quasi-judicial body (...)
218 ECJ cases: Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH, C-54/96 [1997] ECR
I-4961, [1998] 2 CMLR 237; Schmid 517/99 [2002] I-04573, paras 18-27; Umwelanwalt von Krnten and Alpe Adria
Energia SpA, C-205/08 [2009] I-11525, paras 28-37.
219 Statment of facts, para. 7.
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deciding whether to accept the application for amnesty 220. Its goal was to introduce reconciliation of
South African society, divided racially and socially, and enhanced extremely difficult transformation
throughout the country. It granted an amnesty to a few hundred of people who committed various
violations of human rights during the period of apartheid221. The SA TRC had more members, was
divided into the committees and its work was focused on human rights violations, and not crimes
against humanity. In case of crimes against humanity, the criminal tribunal is Public hearings were only
a part of actions aimed to grant amnesty and reconcile the society. Providing justice needs further effort
and precise actions to be taken. Therefore, even in comparison to South Africa TRC and its statutory
aims and structure, the Pontasian Truth and Reconciliation Commission fails to be an institution
perceived as a court or even court-like body.
Argument on Merits
III. Forced marriage is a cognizable crime against humanity under the Article7(1)(k) of the ICCS,
alongside with other crimes committed during the situation.
1. Characteristics of the crime fulfils all the elements of crime described in the Article 7(1)(k) of the
ICCS.
a) The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by
means of an inhumane act.
Forced marriage is not a crime named literally in the catalogue included in the Article 7(1) of the ICCS.
Nevertheless, it is possible to recognize it as crime against humanity considering elements of the crime
described in the Article 7(1)(k) the other inhumane acts. Their gravity shall be equal to other crimes
included in the Article 7(1), especially sexual violence, forcible transfer etc 222. Examining each element
of the crime, it will occur that forced marriage is such crime. Regarding the tradition of both Anots and
Hadads, the marriage is a basic and highly respected institution that bears a distinctive ethnic features,
including the role of parents in arranging the marriage, forcible transfer combined with forced marriage
220 Minow M., op cit.
221 Vora J.A. and Vora E., The Effectiveness of South Africa's Truth and Reconciliation Commission: Perceptions of
Xhosa, Afrikaner, and English South Africans, Journal of Black Studies, Vol. 34, No. 3, pp. 301-322.
222 Tharcisse Muvunyi Case, No. ICTR-2000-55A-T, Judgment 12 September 2006, para. 527.
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and all their consequences: enslavement, sexual slavery, forced pregnancy (all of which are considered
crimes against humanity) 223, the possibility and the risk of suffering of the victim and proceeding
permanent mental injury are substantial.
b) Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute.
As it has been already stated, forced marriage includes the elements and represents quite similar
features to those of crimes against humanity, such as enslavement mentioned in the Article 7(1)(c),
rape, sexual slavery and other forms of sexual violence of comparable gravity [Article 7(1)(g)], and
forcible transfer [Article 7(1)(d)]. The girls were forcibly taken from their homes and kidnapped by
armed members of hostile ethnic group. They were forced to become wives of unknown men belonging
to that group, against their will or will of their parents. Being a wife meant inter alia sexual obedience
and other duties carried out unwillingly, in fear of violence 224.
c) The perpetrator was aware of the factual circumstances that established the character of the act.
Firstly, the abductions of Anot girls and forced marriages have been committed at the behest of Mr.
Womba Tulga, who is claimed to say: We shall replenish the ranks of our fallen comrades with Anot
boys and girls. While the boys were conscripted to HLA, the girls were planned to get pregnant by
HLA soldiers and breed 225. As the leader of HLA, Mr. Womba Tulga should at least have known about
actions including seizing thousands of Anot children and forcibly transferring them along with
retreating HLA. It is obvious that those actions have been committed not only with his acceptance, but
also on his explicit command.
d) The conduct was committed as part of a widespread or systematic attack directed against a civilian
population.
As it has been stated recently, forced marriages did occur after kidnapping Anot girls during the fights
in the cities of northern Pontasia. The main purpose of HLA attack was to create an independent Hadad
224 UNHCHR Report: A/HRC/18/CRP.30 (March 12, 2012), at 3.
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state on that territory, which could include persecution of Anots, predominant in the northern part of
the state. When Mr. Womba Tulga commanded to retreat, he also took thousands of Anot children
obviously being civilians in order to transform them into his new soldiers and parents for next
generations of his own hostile ethnic group. The whole conduct was a part of multiple systematic
forcible transfers and forced marriages of thousands of Anot girls and women.
e) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread
or systematic attack directed against a civilian population.
Mr. Womba Tulga, as it has been described earlier, had full knowledge and was clearly conscious
about the actions of his soldiers and the consequences of his commands. His plans to continue the fight
using Anot boys and girls, shown in official and freely given statements, were part of systematic and
widespread actions against at least ten thousand of young members of Anot ethnic group, all of them
civilians. Even supposing that the conduct was an answer for the commitments of Pontasian National
Army (PNA), that attack on civilian population cannot be justified anyhow 226. Considering the fact that
all the elements of other inhumane act described in the Article 7(1)(k) occur, it shows that forced
marriage is a crime against humanity under this Article 227.
2. More crimes against humanity cognizable under the Article 7(1) occurred on the territory of
Edom and on the territory of Pontasia.
a) Forcible transfer of population under the Article 7(1)(d).

Victims of the alleged crimes were forcibly transferred from their homes before they suffered the other
crimes. All the elements of the crime have been therefore met 228. The perpetrators forcibly transferred a
group of more than ten thousand Anot boys and girls to another location, Pontasian National Park, by
coercive act of abduction. Victims were lawfully present in the cities, where they used to live, from
226 Martic Case, No. IT-95-11-R61, Trial Chamber Decision 8 March 1996, para. 15.
227 Elements of Crimes: Addendum to the Report of the Preparatory Commission for the International Criminal Court,
PCNICC /2000/1/Add. 2, p. 17.
228 Elements of Crimes, p. 11; Blagojevi & Joki Case, No. IT-02-60; Krajinik Case, No. IT-00-39; Popovi et al.
Case, No. IT-05-88.
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which they have been abducted. Entering the city, the HLA was fully aware of that fact. Moreover,
during the retreat, at the behest of the commander they seized the victims and abducted them as a part
of widespread attack on Anot part of Pontasian society. All these young people were civilians and the
perpetrators were fully aware of that. They had an intent to turn some of them into militants by
conscription of them into HLA. The forcible transfer did occur also on the territory of Edom, where the
bush wives were abducted again and took against their will to the headquarters of HLA. Therefore,
forcible transfer is a crime committed at least twice, once on the territory of the concerned States,
meeting all requirements in both cases 229.
b) Enslavement under the Article 7(1)(c).

The situation of bush wives in many cases was similar to that of people deprived of their liberty, as it
has to be noted that the deprivation of liberty is the basic element of the crime of enslavement 230.
Definition of the enslavement is very wide, as it can include broad scope of the acts of sexual violation
not satisfying the definition of rape 231 and other acts connected with depriving human being of the
liberty. The UNHCHR Report clearly defined such deprivations the rebels had full control over
abducted women, they abused them physically and psychically, and treated them as their own property.
The crime was also a part of widespread attack, being an effect of the same action as the other crimes
committed . Their escape finished unsuccessful and caused serious harm to the most of the women.
They could not move freely, unable to express their will and to decide about their own fate. There is a
significant case concerning the crime of enslavement Foca Case232, in which the Court examined such
crime as a crime taking into consideration the elements of crimes of the CIL. Afterwards, it could be
enlisted in the ICCS. The description of the crime from the abovementioned case matches given
situation perfectly, providing clear definition of this type of crime, wich reads as follows: control over
someones movement, control of physical environment, psychological control, measures taken to
229 Aquaviva G., Forced Displacement and International Crimes, Background Paper for UNHCR,
http://www.unhcr.org/4e0344b344.pdf, retrieved 9.02.2013, pp. 19-24.
230 Elements of Crimes, p. 10.
231 Semanza Case, No. ICTR-97-20, paras. 344-345.
232 Foca Case, IT-96-23 and IT-96-23/1.

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prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection
to cruel treatment and abuse, control of sexuality and forced labour233.
c) Rape, sexual slavery and other forms of sexual violence of comparable gravity are crimes under the
Article 7(1)(g).
Rape and other acts of sexual violence are the worst way [to] inflict harm on the victim as he or she
suffers both bodily and mental harm 234. In the UNHCHR Report there was plenty of cases in which
such conduct was described. Rapes, characterized precisely by the tribunals in various cases 235, along
with other acts of sexual violations, did often occur in relations between the HLA rebels and their
wives. Besides rape, there are also other sexual violations to be recognized 236. As it has been stated
before, crimes of forced marriage join with specific sexual crimes against humanity and enslavement,
therefore the elements and definitions repeat in the given case as in aforementioned cases.
3. Forced marriage is a specific crime against humanity committed both on the territory of Edom
and on the territory of Pontasia.
Whole Edom situation regarding forced transfer of bush wives who were able to escape from their
kidnappers and cross the border between Pontasia and Edom, was only a separate part of a broader
situation. The acts of marriage have been committed on the territory of Pontasia, but their effects
occurred also on the territory of Edom, when the wives entered its territory. The marriages lasted for
months, whereas the multiple abductions, acts of violence or rapes has been performed during a shorter
period of time, but were repeatedly undertaken. Rapes are not confined to be a physical invasion but
also other sexual acts without penetration or contact237. The UNHCHR Report clearly depicts all the
233 Foca Case, para. 543.
234 Akayesu Case, No. ICTR-96-4-T, 2 September 1998, para. 731.
235 Akayesu Case, para. 731; Furundija Case, No. ICTR-95-17/1-T, para. 185; Kunarac et al. Case, No. IT-96-23 and
IT-96-23/1 A, paras. 125-133.
236 Banks A.M., Sexual Violence and International Criminal Law: An Analysis of Ad-hoc Tribunal's Jurisprudence &
The International Criminal Court's Elements of Crimes, pp. 21-25.
237 Akayesu Case, para. 688; Musema Case, No. ICTR-96-13, para. 965.
110 | P a g e
atrocities committed on the bush wives: rapes, sexual obedience, beating and other examples of
maltreatment. Even if only some selected crimes had real impact on the territory of Edom, the whole
situation (given ratione temporis, ratione materiae and ratione personae aspects) shall be examined
and prosecuted accordingly. That fact serves as another vital argument for considering crimes against
humanity committed in Pontasia as remaining within the jurisdiction of the Court.
IV. Furthermore, a crime of genocide from the Article 6(e), meaning forcibly transferring children,
has been committed on the territory of both Edom and Pontasia.
Besides crimes against humanity, the evidence indicate and leads to the constatation that also the crime
of genocide are highly probable to have been committed under the Article 6(e) of the ICCS. Not only
rapes and other conducts can be connected with crimes of genocide if other elements are met 238, but
also the elements of the crime of forcible transfer do have their own specification. It is clear that the
perpetrators forcibly transferred a group of people. All of them were Anots of the age between 10 and
15239. The perpetrators knew about the status of the victims, systematically abducting children in
repeated pattern, finally seizing more than ten thousand of children and causing them to co-exist with
another hostile ethnical group members of Hadad Liberation Army. The children were meant not only
to be new soldiers to fight and die for independent Hadad state, but also to breed in the aim of
replenishing the ranks. Their ethnical identity, affected by forcing them to enter into marriage against
their will and contrary to their cultural customs, was meant to be infringed, not to mention the violence
and death, all of which can be perceived as a manifested pattern in the conduct of HLA, with an intent
to destroy a group or its part. The crime of genocide has been witnessed on wide-range group of
children240. The boys were treated differently than the girls, but they were also deprived of their
cultural and ethnical inheritance. Such crime needs neither particular placement nor specific territory to
be defined, therefore ratione loci is not substantial. Additionally, the actions of forcible transferring of
children against their will and personal integrity did occur repetitively both in Pontasia and in Edom.
238 Akayesu Case, para. 731.
240 Ibidem.
111 | P a g e
Submissions
In conclusion, the Counsel of the Victims requests the Court to find that:
1) The crime of forced marriage is a cognizable crime against humanity under Article 7(1)(k) of
the ICCS;
2) The alleged acts that occurred in the territory of Edom are sufficient to serve as a basis
of jurisdiction for crimes against humanity under Article 12(2)(a) and Article 14(1) of the
ICCS, and for crimes against humanity in Pontasia under the principle of universal
jurisdiction and in connection with crimes in Edom;
3) The case is admissible under Articles 17 and 20 of the ICCS, irrespectively of the
proceedings before TRC.
4) Other crimes against humanity, namely enslavement, forcible transfer of population,
rape and sexual slavery, have been committed along with forced marriage on the territory of
Pontasia and Edom under the Article 7(1)c, 7(1)(d), 7(1)(g).
5) The crime of genocide (forcibly transferring children) has been committed on the
territory of Pontasia and Edom and is within the jurisdiction of the Court under the Article
6(e).
112 | P a g e
JUDGE COMMENTS
According to the judges, the role of the counsel for the victims was the most difficult because
his tasks were quite different and unclear. First, he shall support the Prosecutor because of
some goals in common. On the other hand, he has different motivations and his perspective is
focused on other issues. That inconsistence had an effect on various approaches taken by the
teams.
A clear and understandable structure of the memorandum combined with severe analysis of
important issues of the case in separated chapters is highly scored by the judges as it
facilitates their task. It is useless to state all the facts already known from the case as the
judges do not promote simple reiterating. In contrary, their aim is on important issues and
their legal analysis. All repetitions should be avoided. The core of argumentation is law
theses based on justice, rightfulness or common sense have lesser value. Support of
jurisprudence or doctrine is vital for the judges. Besides, clarity of the well-based
argumentation is the most important.
113 | P a g e
ORAL PRESENTATIONS
AUTHOR: ALEKSANDRA SURMA
The main part of the final round of the competition are the speeches before the jury composed
of 3 judges usually they are real lawyers, judges or international criminal law experts.
Besides the merits, the judges also have pay attention on the form of the presentation, its'
composition and structure. Contents of the speech may be somehow different from the
memorandum, as there are time restrictions. The judges made notes and remarks after the
speeches. On the base of these comments it is possible to prepare a list of necessary elements
to fulfill a perfect speech.
1. Clear structure
Listening to the speaking version of the memorandum impresses differently than reading the
written version. Therefore it is useful to modify your written work taking into account the
rhetorical aspect of your presentation. Firstly, after introducing yourself you should propose
your outline of the speech in bullet points before getting to the point. First tell the judges what
you want to tell them, then tell them that, finally tell them what you have told them. That will
make it easier to follow your train of thought for the judges, and help you to avoid
unnecessary questions, while answers for them were planned further in your speech. If you
will have enough time, you could add complete recapitulation of main arguments, similar to
the outline.
2. Knowledge of jurisprudence and authorities.

Judges were focused on the type, number and frequency of mentioned sources from court
verdicts or authorities of doctrine. It is good do demonstrate not only broad knowledge about
the case and relevant jurisprudence, but also any important ICC and other international
tribunals verdicts. Many authorities of international public law also make good impression on
the judges, but jurisprudence is the key to success. Remember to diverse your sources
(verdicts of more than one tribunal, different books or journals) to emphasize depth of your
knowledge and your effort put into preparation.
114 | P a g e
3. Rebuttal is very important.
In final scores judges take into consideration also your rebuttal, which takes place after
speeches of all sides. This second presentation is a response to the argumentation of the
opponents. As before the oral round all teams receive the written memoranda of the opponent
teams, it is possible to familiar yourself with their main points, which will be probably used in
their presentations. At the same time it is crucial to bear in mind, that their speeches can differ
from the written memoranda and they can include new arguments. The main point of the
rebuttal is to answer on main allegations and thesis of the opponents. Due to the time
restrictions it is difficult to refer to all the issues, therefore it is important to focus on the main
ones. Self-confidence and spontaneous reactions to conrcrete arguments make a good
impression.
4. Be creative!
Knowledge and flexibility go well with creativity. Clever using of facts, jurisprudence and
doctrine for thoughtful analysis are highly regarded by the judges, even if they do not totally
agree with them. Smart answer for tricky questions has great effectiveness.
5. Speak slowly.
An oral presentation is effective and understandable not only because of its structure, but also
thanks to clear speech. For most of the judges English is not their native language, though
they speak and hear it perfectly. It is very important to bear it in mind. It is necessary to speak
slowly and clearly to enable judges understand as much as possible and not to ask to much
questions. Clarity and fluency are to be trained hard during preparations. The fact that our
English is clearly understood by our trainer or friends does not mean that the judge from
Mongolia will understand us the same way.
6. Stick to the point.

When the judge asks you a question independently from the fact if he interrupts the middle
of your speech or at the end of it it is important to answer as short as possible and to the
115 | P a g e
point. Beating around the bush gives an impression of lack of knowledge. While in the
memorandum it is sometimes necessary to analyze thoroughly issues, there is not enough time
during your speech. It is useful to make your argumentation easier and simpler, clear and
convincing, keeping the impression of complexity.
7. Watch the judges.

During your presentation look straightly in the eyes of the judges. Eye-contact is important as
we express our self-confidence and make a connection with the most important listeners in the
room, as they are who decide about the score. Their reaction will give us vital signals if we
are understood, if our argumentation convinces them, what do they think about our speech.
Sometimes you cannot read much out of their faces, but showing confidence is never useless.
8. Check the time.

Time limits are strictly guarded by specially chosen timekeepers. Be aware that judges behave
differently some of them will interrupt your speech to ask a question or to clarify some
issue, some will wait to the end of the presentation and then ask many questions. First case
occurs much more often, although it is more complicated and interrupts the speaker which
takes away also his precious time. It is important to bear this in mind, especially during
preparing your speech. During your training work on the perfect timing.
116 | P a g e
ISBN 978-83-63397-18-0

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Guide for Participants

Editorial Staff: Anita Garnuszek, Wojciech Giemza, Laura Mazur

Authors: Karolina Alama-Osmlska, Anita Garnuszek, Wojciech Giemza, Laura Mazur,

Composition: Laura Mazur

Proof-reading: Karolina Alama-Osmlska, Laura Mazur, Aleksandra Surma

ICLN ICC Trial Competition & Karolina Alama-Osmlska, Anita Garnuszek,

Cover design: Laura Mazur

Faculty of Law and Administration of the University of Warsaw

Interdisciplinary Students Association Diplomacy and Law

This volume is published thanks to the support of:

Advisory Council for Students Academic Affairs of the University of Warsaw

The University of Warsaw Foundation

Have a good reading,

Interdisciplinary Student Association Diplomacy and Law

Tutor of the Association is Aleksander Gubrynowicz, Ph.D. and academic lecturer on

I. Task of the Prosecution Teams

II. Task of the Defense Teams

III. Task of the Common Legal Representative for Victims

Case before the International Criminal Court (ICC):

Established Agenda for Appeal of the Pre-Trial Chambers Decision

Decision on Jurisdiction and Admissibility

COUNSEL FOR THE PROSECUTION MEMORIAL

ICLN INTERNATIONAL CRIMINAL COURT

THE PROSECUTOR V. WOMBA TULGA

COUNSEL FOR THE PROSECUTION MEMORIAL

AUTHOR: LAURA MAZUR

ICLN ICC Trial Competition 2013

Article Article of the ICC Rome Statute

Commission Truth and Reconciliation Commission in Pontasia

Edom Kingdom of Edom

HLA Hadad Liberation Army

i.a. inter alia

ICC International Criminal Court

ICJ International Court of Justice

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for former Yugoslavia

PNA Pontasian National Army

Pontasia Republic of Pontasia

Statute Rome Statute of the International Criminal Court

UNHCHR United Nations High Commissioner for Human Rights

UNSC United Nations Security Council

II. BOOKS AND TREATISES

III. INTERNATIONAL JUDICIAL DECISIONS

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

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I.

Prosecutor v. Francois Karera, Case No. ICTR-01-74-T.

Prosecutor v. Mikaeli Muhimana, Case No. ICTR- 95-1B-T.

Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-T.

Prosecutor v. Thoneste Bagosora et al, Case No. ICTR-98-41-T.

Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A.

Prosecutor v. Milan Martic, Case No. IT-95-11-R61.

23-T & Case No. IT-96-23/1-T.

IV. OTHER AUTHORITIES

Decision of the Spanish Audencia nacional of March 4, 1999 in Fidel Castro.

Decision of the Spanish Audencia nacional of September 24, 1999 in Pinochet.

Investigation in Darfur, Office of the Prosecutor, press release, case: ICC-OTP-0606-104.

Office of the Prosecutor, press release, case: ICC-OTP-0606-104.

Swiss Military Criminal Code of June 13, 1927.

V. INTERNATIONAL TREATIES AND UNITED NATIONS DOCUMENTS

1125 UNTS 3 Protocol Additional to the Geneva Conventions of 12 August

1125 UNTS 609 Protocol Additional to the Geneva Conventions of 12 August

1342 UNTS 171 Protocol on Prohibitions or Restrictions on the Use of

1557 UNTS 3 Convention on the Rights of the Child (adopted on 20