Case before the International Criminal Court:
Prosecutor v. Captain Sota and President Somitian
SUMMARY OF THE ARGUMENT
The gist of the argument made by the Defence Counsel is firstly that the Court lacks
jurisdiction to try certain matters before it concerning, rape, other forms of sexual violence
and certain murders which are genuinely being investigated and prosecuted by the Juridical
System of the Government of Sullaney. Secondly, in relation to certain crimes concerning the
murder of Taman Students and the burning of people inside a church, the Defendants cannot
be held liable through superior responsibility because at the material time they were not in
effective command and control over the SU Forces. Thirdly, on several fronts and in relation
to various crimes charged by the Prosecutor they lack the requisite evidence to prove guilt
beyond reasonable doubt. Fourthly, in relation to several crimes alleged to have been
committed during the attack on Pomona, the Defendants did not have the requisite mens rea
to be found guilty of such charges and the burden rests on the Prosecution to prove otherwise.
Finally, some of the alleged offences committed during the attack on Pomona were
necessitated by military objectives and therefore the Defendants cannot be held culpable.
WRITTEN ARGUMENT
I. LACK OF JURISDICTION & INADMISSIBILITY
In relation to any charges concerning sexual offences and rape levelled against President
Somitian and Captain Sota under Article 7(1)(b) and Article 8(2)(b)(xxii) of the ICC Statute,
the Defence Counsel argues that the Court has no jurisdiction. Indeed, on May 1 st the
President of Sullaney ordered for an investigation into the perpetrators of the so-called
“Taman Treatment” and other acts of sexual violence. The Defence Counsel therefore
submits that any charges relating to rape, sexual violence and the so-called “Taman
Treatment” fall outside the jurisdiction of the Court by virtue of Article 17 and Article 19 of
the ICC Statute. Counsel for the Defence contends that any charges of sexual violence against
the Defendants are inadmissible as they are currently under investigation by the Juridical arm
of the Government of Sullaney.
Some authors have convincingly argued that the Rome Statute places prime importance on
the nationality of an accused person. 1 According to Antonio Cassese, states traditionally bring
alleged perpetrators of international crimes to trial before their courts based on one of three
principles: territoriality (the offence has been perpetrated on the State's territory), passive
1 Deen-Racsmany Z, ‘The nationality of the offender and the jurisdiction of the International Criminal Court’,
95(3) The American Journal of International Law, 2001, 606.
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nationality (the victim is a national of the prosecuting State), or active nationality (the
perpetrator is a national of the prosecuting State). 2
According to the principle of active nationality states are entitled to exercise jurisdiction over
offences committed by their nationals abroad or in other countries. 3 Ordinarily, the principle
of active nationality is applied in one of two ways. A number of states have jurisdiction over
particular criminal offences committed by their citizens in other jurisdictions. 4 In such
instances, the fundamental incentive is to ensure that nationals of a state comply with the
laws of their state while abroad, regardless of the laws state of foreign states where crimes are
committed. 5 In other states, it is a requirement for the crime to be punishable under the laws
of the state in which the crime was committed as well as under the laws of the state to which
the offender is a national. 6 In such instances, the rationale is to ensure that the criminal does
not escape the hands of justice. 7
There is case law that supports the principle of active nationality. For example, in Sweden the
case of Public Prosecutor v Antoni, demonstrates the principle of active nationality in action.
Here, the Defendant, Antoni, was a Swedish citizen who fell asleep while driving a vehicle in
Germany resulting in an accident where 3 persons were gravely injured. 8 Under Chapter 1,
Article 1 of the Swedish Penal Code, a Swedish national could be charged for a crime
committed outside the country provided the King (in council) the crime may be prosecuted in
Sweden. 9 Antoni argued that the Traffic Penal Code could not be applied to a crime
committed outside Sweden. The Court agreed with the interpretation that the Traffic Penal
Code was peculiar in that it was a special penal provision intended only to apply in Sweden. 10
However, the Supreme Court of Sweden went further to state that unless it is clear from the
wording of a statute that the subject matter of the crime is only applicable to crimes taking
place within the national jurisdiction, Swedish citizens could be tried for all other crimes
committed abroad under Chapter 1, Article 1 of the Swedish Penal Code. 11
2 Cassese A, International Criminal Law, Oxford University Press, Oxford, 2003, 277.
3 Deen-Racsmany Z, ‘The nationality of the offender and the jurisdiction of the International Criminal Court’,
95(3) The American Journal of International Law, 2001, 609.
4 Cassese A, International Criminal Law, Oxford University Press, Oxford, 2003, 281.
5 Cassese A, International Criminal Law, Oxford University Press, Oxford, 2003, 281.
6 Cassese A, International Criminal Law, Oxford University Press, Oxford, 2003, 281.
7 Cassese A, International Criminal Law, Oxford University Press, Oxford, 2003, 281.
8 Public Prosecutor v Antoni (1960), The Supreme Court of Sweden.
9 Article 1, Chapter 1, Penal Code (Sweden).
10 Public Prosecutor v Antoni (1960), The Supreme Court of Sweden.
11 Public Prosecutor v Antoni (1960), The Supreme Court of Sweden.
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Additionally, in the British case of R v Earl Russel, Earl Russel was charged in England with
an offence under section 57 of the Offences Against the Person Act of 1861 for bigamy
where he married for a second time in the United States of America. 12 Section 57 of the Act
stated that whoever married another person during the lifetime of their former husband or
wife shall be guilty of a felony, whether second marriage took place in England, Ireland or
elsewhere. 13 Earl Russel claimed that an English statute could not apply to acts committed
beyond the Kings dominions unless expressly provided for by law. The House of Lords
rejected his defence on the premise that the jurisdiction of the Imperial British Parliament
could be said to apply to all British nationals regardless of the territory they were in. 14
According to Antonio Cassese the International Criminal Court is grounded in the principle
of complementarity such that the Court is subsidiary or complementary to national courts. 15
National courts therefore have priority over the International Criminal Court in the exercise
of jurisdiction other than in the case of some special circumstances. Cassese posits that there
are 2 main rationales underlying the principle of complementarity. The first is that it was
approved by states on practical grounds to avoid the Court being inundated with a barrage of
cases from every corner of the planet, especially having in mind the limited resources of
available to the Court. 16 In addition, it was thought that national courts actually have better
means to gather evidence and capture the accused. The second rational underlying the
principle of complementarity is the respect for state sovereignty. 17
The principle of complementarity is established under paragraph 10 and Article 1 of the ICC
Statute, where it is stated that the International Criminal Court shall be complementary to
national criminal jurisdictions. 18 Article 17 of the ICC Statute provides that the Court shall
render a case inadmissible where; (i) the case is being investigated or prosecuted by a state
that has jurisdiction over it 19 ; or (ii) the case has been investigated by a State which has
jurisdiction over it and the State has decided not to prosecute the person concerned. 20
12 Rex v Earl Russel (1901), The United Kingdom House of Lords.
13 Section 57, Offences Against the Person Act (1861) (United Kingdom).
14 Rex v Earl Russel (1901), The United Kingdom House of Lords.
15 Cassese A, International Criminal Law, Oxford University Press, Oxford, 2003, 351.
16 Cassese A, International Criminal Law, Oxford University Press, Oxford, 2003, 351.
17 Cassese A, International Criminal Law, Oxford University Press, Oxford, 2003, 351.
18 Article 1, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
19 Article 17(1)(a), International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
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However, the International Criminal Court may override the national criminal jurisdiction of
a State where the State is unwilling and unable to genuinely carry out the prosecution or
investigation. 21
The main query therefore emerges from the meaning of ‘unwillingness’ or ‘inability’ of a
State to genuinely prosecute or investigate a person suspected of committing crimes under
international law. Articles 17(2) and 17(3) are instructive on this matter. States are deemed to
be ‘unwilling’ where; (i) national authorities have undertaken proceedings in order to shield
the suspect from criminal responsibility 22 ; or (ii) where there has been an unjustified delay in
the proceedings which is demonstrably inconsistent with an intent to bring the person
concerned to justice 23 ; or (iii) where the proceedings are not being conducted independently
or impartially or in a manner demonstrating an intention to bring the suspect to justice. 24
States are considered ‘unable’ to genuinely prosecute and investigate where due to a total or
substantial collapse or unavailability of its national judicial system, a state is unable to
capture the accused, obtain necessary evidence or carry out criminal proceedings. 25
According to Article 19 of the ICC Statute, challenges to the admissibility of a case on the
grounds referred to in Article 17 or challenges to the jurisdiction of the Court may be made
by an accused or a person for whom a warrant of arrest or a summons to appear has been
issued under Article 58. 26 Therefore, the Defendants are empowered and well within their
rights to challenge the admissibility of the charges concerning rape, other forms of sexual
violence and murder of civilians by Sullan nationals, which are being investigated and
prosecuted by the National Courts of Sullaney.
II. LACK OF EFFECTIVE CONTROL OVER SUB-ORDINATES
It has been held by the ICTY that a superior cannot be regarded as criminally liable unless he
or she exercised effective command and control over subordinates. 27 Counsel for the Defence
20 Article 17(1)(b), International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
21 Article 17, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
22 Article 17(2)(a), International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
23 Article 17(2)(b), International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
24 Article 17(2)(c), International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
25 Article 17(3), International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
26 Article 19(2)(a), International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
27 Prosecutor v Momcilo Perisic, ICTY Judgement of 28 February 2013, para. 87.
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wishes to draw the attention of the Court to what was said by the ICTY concerning evidence
of effective control. The ICTY noted that the marks of effective control are ‘more a matter of
evidence than of substantive law, and those indicators are limited to showing that the accused
had the power to prevent or punish.’ 28 In addition, the ICTY noted that an accused cannot be
held liable for failure to punish crimes committed by subordinates before the accused
assumed command over the subordinates. 29 It must be recognised that the mere ability to
prevent a crime is not a necessary precondition to prove effective control. 30
Amidst the factors buttressing a finding that an accused had authority and exercised effective
command and control are; their formal position, the procedure under which they were
appointed, whether material and human resources were available to him and the authority he
or she had to enforce disciplinary measures. 31 At the time of the murder of the 24 Taman
students and the 78 civilians burned in a church it cannot be said that Captain Sota had
material and human resources available to her as she crossed the border by herself without
any ammunition. In addition, at the material time of the murders, Captain Sota could not be
said to have had the authority to enforce disciplinary measures. This is demonstrated by the
fact that she ordered for the investigation, prosecution and imprisonment of the members of
the SU Forces who had killed innocent Taman Civilians, there by affirming that the authority
to enforce disciplinary action was vested in some other authority.
Counsel for the Defence further submits that any charges levelled against Captain Sota and
President Somitian under Article 7(1)(a) should fail. Reason being that neither Captain Sota
nor President Somitian had either knowledge or effective control and command over the
forces perpetrating the killing of civilians in Tamaney by the SU Forces. Specifically, where
SU Forces drove a bus containing students into a lake, killing 24 Taman’s and where
members of the SU Forces locked the doors of a church and set it ablaze killing 78 Tamans.
In support of the Defence Counsel’s submission, it is also clear that Captain Sota took all
reasonable and necessary measures within her power to prevent the killing of Taman
civilians. Firstly, by actually intervening to prevent the massacre 120 Tamans and secondly
by ordering the prosecution, investigation and imprisonment of the members of the SU
Forces who had killed innocent Taman Civilians. With all this in mind, Counsel for the
28 Prosecutor v Momcilo Perisic, ICTY Judgement of 28 February 2013, para. 87.
29 Prosecutor v Momcilo Perisic, ICTY Judgement of 28 February 2013, para. 87.
30 Prosecutor v Momcilo Perisic, ICTY Judgement of 28 February 2013, para. 88.
31 Prosecutor v Prilic et al, ICTY Judgement of 29 May 2013, para. 244.
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Defence submits that Captain Sota and President Somitian cannot be held responsible for any
charges pertaining to Article 7(1)(a) of the ICC Statute as they did not have effective
command and control over the SU Forces, neither did they have knowledge of the murders,
and they took all reasonable measures to prevent the killings pursuant to Article 28 of the
Statute. 32
III. LACK OF PROOF BEYOND REASONABLE DOUBT (PRINCIPLE
OF IN DUBIO PRO REO)
It has been held that in order for a finding of guilt to be sustained for an alleged crime, a
reasonable adjudicator of facts must reach the conclusion that all the material facts relevant to
the elements of that crime have been proved beyond reasonable doubt by the prosecution. 33 In
addition, at the conclusion of a trial the accused is entitled to a benefit of doubt as to whether
the charge has been proved. 34
According to Article 66 of the ICC Statute, everyone is entitled to a presumption of
innocence until proven guilty in proceedings before the Court. 35 The onus lays with the
Prosecution to prove the guilt of the accused. In addition, in order to convict the accused, the
Court must be convicted of the guilt of the accused beyond reasonable doubt. 36
Counsel for the Defence maintains that where the Prosecution is seeking to charge the
Defendants for the killing of the 24 Taman students, and the setting ablaze of a church
resulting in the death of 78 Tamans via a claim of superior responsibility made under Article
28 of the ICC Statute, there is lack of sufficient evidence to prove beyond reasonable doubt
that the Defendants were responsible for those acts. According to Article 66 of the ICC
Statute, in order for a conviction of guilt to be sustained, the Court must be convinced
accused’s guilt beyond reasonable doubt. 37 In the present circumstances there is no evidence
that proves that the Defendants can be found responsible for the aforementioned killing of the
innocent civilians. There are five possible elements required to prove criminal responsibility
attributed to superiors or military commanders for the acts of their forces. For military
32 Article 17, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
33 Prosecutor v Milan Martic, ICTY Judgement of 8 October 2008, para. 55.
34 Prosecutor v Milan Martic, ICTY Judgement of 8 October 2008, para. 55.
35 Article 66, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
36 Article 66, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
37 Article 66, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
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commanders, the first is that a military commander either knew or ought to have known that
the forces were committing or about to commit such crimes. 38 The second being that the
military commander failed to take necessary and reasonable measures to prevent or repress
the commission of such crimes or failed to submit the matter to competent authorities for
investigation and prosecution. 39 For other relationships concerning superiors, the first possible
element would be that the superior either knew or consciously disregarded information that
clearly indicated that the subordinates were committing or about to commit such crimes. 40
The second possible element to prove superior responsibility is that the crimes in question
concerned activities that were in the effective responsibility and control of the superior. 41 The
final possible element is that the superior failed to take necessary and reasonable measures to
prevent or repress the commission of such crimes or failed to submit the matter to competent
authorities for investigation and prosecution. 42
Based on the evidence available to the prosecution, Counsel for the Defendants submits that
it cannot be proved beyond reasonable doubt that firstly, Captain Sota knew or ought to have
known that the SU Forces were killing or about to kill the 24 Taman students, and the SU
Forces were setting ablaze or about to set ablaze a church resulting in the death of 78
Tamans. Secondly, it cannot be proved beyond reasonable doubt that Captain Sota failed to
take necessary and reasonable measures to prevent or repress the commission of such crimes
or failed to submit the matter to competent authorities for investigation and prosecution. As a
matter of fact, Captain Sota took measures to prevent and repress such killings by firstly
actually intervening to prevent the massacre 120 Tamans and secondly by ordering the
prosecution, investigation, and imprisonment of the members of the SU Forces who had
killed innocent Taman Civilians.
With respect to President Somitian, Counsel for the Defendant submits that based on the
evidence available to the Prosecution, it cannot be proved beyond reasonable doubt that he
either knew or consciously disregarded information that clearly indicated that the SU Forces
were killing or about to kill the 24 Taman students and the 78 Taman’s set ablaze in a church.
In addition, the Prosecution cannot prove beyond reasonable doubt that the killings in
38 Article 28, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
39 Article 28, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
40 Article 28, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
41 Article 28, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
42 Article 28, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
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question concerned activities that were in the effective responsibility and control of President
Somitian. Finally, it cannot be proved beyond reasonable doubt that President Somitian failed
to take necessary and reasonable measures to prevent or repress the commission of such
crimes or failed to submit the matter to competent authorities for investigation and
prosecution. In fact, Captain Sota had already ordered for the investigation and imprisonment
of the members of the SU Forces who had killed innocent Taman Civilians.
In addition, there is also lack of sufficient evidence of a standard beyond reasonable doubt to
sustain a charge or conviction against President Somitian for the sexual violence and rape
perpetrated by the SU Forces. Counsel for the Defence submits that there is no evidence
available to the prosecution that meets the standard of proof beyond reasonable doubt
indicating that President Somitian knew or ought to have known of the rape and sexual
violence perpetrated by some members of the SU Forces. Additionally, the Prosecution
cannot prove beyond reasonable doubt that the rape and sexual violence in question
concerned activities that were in the effective responsibility and control of President
Somitian. Furthermore, it would be misleading for the Prosecution to claim that President
Somitian failed to take necessary and reasonable measures to prevent or repress the
commission of such crimes or failed to submit the matter to competent authorities for
investigation and prosecution, while he in fact on May 1 st ordered for an investigation into the
perpetrators of the so-called “Taman Treatment” and other acts of sexual violence.
As has been mentioned in order for a finding of guilt to be sustained for an alleged crime, a
reasonable adjudicator of facts must reach the conclusion that all the material facts relevant to
the elements of that crime have been proved beyond reasonable doubt by the prosecution. 43
In relation to the attack on Pomona that resulted in the destruction of the 131 homes, the
displacement and death of Taman’s and the destruction of the bell tower, the Prosecution
does not have enough evidence to prove charges under Article 8 to the standard of beyond
reasonable doubt. Firstly, in relation to the ordering of the displacement of Taman civilians
Annex 3 purports to be a letter from Captain Sota, but it does not contain any of her personal
insignia or unique individual marks that would allow a reasonable trier of facts to conclude
43 Prosecutor v Milan Martic, ICTY Judgement of 8 October 2008, para. 55.
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that she is the author of the letter. To support this position, it has been held that where
documentary evidence is tendered to prove actus reus and mens rea, the authenticity of the
document constitutes a predicate fact, which must be proved beyond reasonable doubt before
such evidence is used to sustain a charge or conviction. 44 Secondly, in relation to the death of
the three civilians shot from close range during the attack on Pomona, the Expert Statement
in Annex 7 is clear that the bullets used in the murders cannot be clearly attributed beyond
reasonable doubt to the SU Forces. In addition, the Prosecution cannot prove beyond
reasonable doubt that death of the 28 Taman civilians during the attack on Pomona resulting
from tank shelling was done with the requisite mens rea (intent and knowledge) required
under Article 30 of the ICC Statute. The same can be said for the destruction of the 131
homes and the bell tower which was a UNESCO site.
IV. LACK OF MENS REA
With respect to the attack on Pomona which resulted in the destruction of 131 homes, the
death of 31 civilians and the obliteration of the UNESCO World Heritage Site, the Counsel
for the Defendants submits that there was a lack of mens rea on the part of Captain Sota and
President Somitian. Therefore, the Defendants cannot be held guilty for any charges levelled
against them under Article 8 of the ICC Statue in relation to the attack on Pomona. In order
for a person to be found guilty for a crime, it is a requirement under Article 30 of the ICC
Statue for the crime to be committed with intent and knowledge. 45 In the present circumstance
it cannot be said that President Somitian and Captain Sota intended for the SU Forces to
contribute to the death the 31 civilians, or destroy the 131 homes, or even knew that the
destroyed bell tower was a UNESCO World Heritage Site.
There is good authority to support this position. In the case of Prosecutor v Naletili and
Martinovi, it was found that there was insufficient evidence to prove mens rea for the crime
of torture under the principle of in dubio pro reo 46 . The evidence that was tendered at the trial
indicated that some victims had been severely beaten by the accused. However, the evidence
was to ambiguous to enable a distinction or conclusion as to whether the beatings were
inflicted with a specific purpose, (which is an element of the crime of torture) or whether the
beatings were inflicted for the purpose of cruelty and for no other purpose. The Court held
44 Prosecutor v Stakic, ICTY Judgement of 31 July 2003, para. 14.
45 Article 30, International Criminal Court Statute, 17 July 1998, 2178 UNTS 38544.
46 Prosecutor v Naletilic and Martinovic, ICTY Appeal Judgement of 3 May 2006.
14
that on the basis of the principle of in dubio pro reo, that the specific purpose required as an
element of torture and necessary to obtain a conviction had not been proved by the
Prosecution evidence beyond reasonable doubt as the evidence was open to an alternative
inference inconsistent with the mens rea required for the crime of torture. 47
.
V. JUSTIFIED MILITARY NECESSITY & OBJECTIVES
Counsel for the Defence submits that with respect to any charges proffered against Captain
Sota and President Somitian under Articles 8(2)(a)(iv), 8(2)(b)(ii), 8(2)(b)(v), 8(2)(b)(ix),
8(2)(e)(iv) and 8(2)(e)(vii) of the ICC Statute, specifically concerning the attack on Pomona
and the alleged letter from Captain Sota ordering the displacement of Taman civilians, that
those actions were demanded by military necessity and objectives. Therefore, President
Somitian and Captain Sota cannot be found guilty for the destruction of the 131 homes, the
displacement on Taman’s and the destruction of the bell tower because these actions were
militarily necessitated due to the military exchanges between the SU Forces and TAF soldiers
and by the impending influx of TAF Forces into the region.
In the context of materiality, military necessity basically means nothing more than a specified
course of action required to attain a particular military objective. 48 It could be said that within
the context of military necessity a good war is one where each and every act is executed
professionally and efficiently and directed towards a reasonably attainable military
objective. 49 Therefore, military necessity is primarily a matter of identifying a realistic course
of action that has reasonable chances of success. 50
An essential aspect of military necessity is that parties are allowed to take into account the
practical requirements of a military situation and the objectives of winning. 51 Therefore, due
the Defendants cannot be found liable under Article 8 of the ICC Statute for the alleged
crimes committed during the attack on Pomona. The aspect of military necessity is buttressed
the fact there was an impending influx of TAF Forces into the region, the SU Forces, for the
47 Prosecutor v Naletilic and Martinovic, ICTY Appeal Judgement of 3 May 2006.
48 Hayashi N, ‘Requirements of military necessity international humanitarian law and international criminal
law’, 28(1) Boston University International Law Journal, 2010, 43.
49 Hayashi N, ‘Requirements of military necessity international humanitarian law and international criminal
law’, 28(1) Boston University International Law Journal, 2010, 43.
50 Hayashi N, ‘Requirements of military necessity international humanitarian law and international criminal
law’, 28(1) Boston University International Law Journal, 2010, 43.
51 Darcy S, ‘Defences to International Crimes’, in William A and Bernaz N (eds), Routledge Handbook of
International Criminal Law, Routledge, 2011, 256.
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purpose of winning the war needed to make ground and take up strategic