Reas Pro

The case involving the ICC Prosecutor against Rabuka PATTON Joseph Jacob Smith RAMSEY McGibbon KANUBE NBOG Sano (the respondent)

Competition NUMBER admissibility and

The Rome Statute gives the International Criminal Court (ICC) the power to determine its own jurisdiction. [1] However, with jurisdiction not necessarily be the case is admissible since the Rome Statute deals jurisdiction and admissibility differently. [2] The International Criminal Court can only exercise its jurisdiction only if both conditions.

A. International Criminal Court jurisdiction over non-respondents

The release mechanism of the ICC provides for three situations that may trigger your jurisdiction. They are reference by a State Party (Article 13 (a)), referral by the Security Council (SC) (Art. 13 (b)) and the initiation by the independent prosecutor (Article 13 (c)) [3].

1. I. Resolution SC 1540 not a reference in accordance with Article 13 (b)

Then there are two conditions before the SC may transfer the case to the ICC [4]. Article 39 [5] leads to the following conditions:

(a) CS can only intervene if it determines the existence of a threat against the peace, breach of peace or act of aggression

The practice of the SC shows that determines whether a situation constitutes a threat to peace and security in its resolutions and voting. [6] In this case, the 1540 Council resolution merely states that there is a civil war does not determine explicitly the situation in Libertarian threatens peace and security.

(b) The measures taken should aim to maintain or restore international peace and security International

The SC must decide [7] that the referral to the Court is an appropriate measure to restore and maintain peace and security. [8] must be said that the exercising its powers under section 13 (b). [9] However, no decision is made in Resolution 1540. It simply states that the SC "requested" the ICC to investigate.

As no conditions are met, the ICC's jurisdiction could not be fired through Article 13 (b). The resolution merely acts as "information" the opening by the independent prosecutor. [10] Even if the resolution amounts to a referral, the Prosecutor is obliged open investigation, but did not pursue [11].

1. II. The Prosecutor has initiated an investigation pursuant to Article 15 and 18

Article 15 provides that the Prosecutor, after reaching a joint decision and convincing [12] shall submit to the Trial Chamber a request permission for the survey [13]. The Chamber to authorize an investigation if there is a reasonable basis to proceed. [14] The facts show that the Trial Chamber, in accordance with the nonbinding resolution by mistake gave him permission without a request from the Attorney to the Board of the holiday was not based on any evidence.

Hence, or the trigger mechanism has been published, override the jurisdiction of the ICC.

B. Even if the ICC has jurisdiction, the case is inadmissible under Article 17

Article 17 (1) gives primacy to the States to exercise jurisdiction International Criminal Court [15]. The preamble to the Rome Statute recognizes that the ICC is the last resort of justice for victims of international crimes. The role original assigned to the Court that is complementary to national systems. The prosecutor had also violated the doctrine of complementarity by not responding to a proceeding under Article 18. His lack of notification [16] Libertarian violates the preliminary steps of admitting the case to the Trial Chamber [17] made the case inadmissible.

DEFENSES

Jacob A. Smith (JS) is not responsible for genocide, crimes against humanity and crimes war

1. JS did not commit genocide under Article 6 (a)

The attack did not constitute genocide because Zimbaloon JS had no specific intent [18] for the material [19] to destroy, in whole or in part, a particular group as such [20]. In this case, the group allegedly was attacked on the basis of religion [21] Arantics Group. However, the attack was actually directed towards pro-Tshombe activism to Zimbaloon. JS did not have the specific intent physically destroy the Arantics as such but only to defeat their enemy combatants legally.

1. JS did not commit crimes against humanity under article 7 (1) (a)

One of the main elements of crimes against humanity is that behavior committed as part of a systematic or a widespread attack against civilians. There is not a Libertarian government policy to attack civilians due to the Proclamation by President Joseph Rabuka (JR) is "subject only to the militants. The attack has not been widespread or because there was only one attack in the region bounded Zimbaloon.

1. JS did not commit war crime of attacking protected objects under Article 8 (2) (b) (ix) [22]

Monuments to direct attacks against buildings dedicated to education and background are war crimes, unless they prove that military objectives. [23] Responsibility criminal may be excluded due to errors of fact if it negates the mental element [24], which is "intended that these buildings in order to attack." According specified by the PK, "his forces never intended to destroy the Redford, schools and forests. Instead, it was due to technical malfunctions in the pump, it is a mistake of fact by the JS. This shows that the mental element of war crimes. So, JS can not be responsible for an act he did not intend.

B. Ramsey McGibbon (MRI) is not responsible for the war crime under article 8 (2) (b) (xviii)

The use of poison gas is only a war crime in international armed conflicts [25]. Libertarian is to have a civil war that causes a conflict internal armed [26]. The fact that volunteers are involved Karatangan and MRI does not constitute an intervention in another state because they have not acted in their official capacity. [27] No charge under the Rome Statute for the illegal use of poison gas. Therefore, it can not be held responsible for any type of crime.

C. Sano Nbonga (SN) is not responsible for crimes against humanity under Article 7 (1) (a)

Murders allegedly committed by SN must be sponsored by the State or part of a government policy that requires the state actively promotes or incites attack [28]. The Libertarian State never promoted or encouraged the attacks on villagers. Therefore, not crimes against humanity were committed.

Rabuka D. JOSEPH (JR) will not exceed or criminal liability individual for genocide, crimes against humanity and war crimes

JR I is not responsible for genocide and war Crime as a greater

(a) There is no relationship of subordination

A president who is not in the military is right, a civilian supervisor. [29] However, it is their possession of control over subordinates the determination of liability. [30] This control Cash provided by its ability to prevent or punish their subordinates or crimes. [31] does not exceed Kanube JR Patton (PK) and libertarian Armed Forces (LAF), because he is unable to punish.

(b) JR is not the mens rea of superior responsibility

JR standard of mens rea [32] is "willful blindness" [33], requiring him to satisfy three elements. First, there must be information, Secondly, be aware of the existence of such information and, finally, must have refused to refer to information [34].

Clearly, JR has no information indicating a significant risk of PK and the RAF were committed or commit crimes. The statement made by Jacob Smith (JS) was distributed among the ranks Army. As a civilian supervisor who is out of the army, JR does not get this information. Therefore, there could have "knowingly ignored information "[35] If this information was not yet available.

1. JR is not the responsibility individual criminal by Article 25 (3) (c)

In ABET means encouraging the commission of a crime [36]. The actus reus complications can be satisfied by a superior, which allows the use of the resources under their control to facilitate the commission of a crime [37]. L 'Authorization for PK JR was designed to end internal conflicts, not to terrorize civilians. Connection with the genocide, the intention must be "specifically" designed exclusively to achieve this particular result. [38] JR does not have this intention, as it merely allows PK to suppress domestic unrest, not genocide.

E. PK is not responsible for the top individual and genocide and war crimes

1. There was no genocide

As there was no genocide can not be responsible PK.

1. II. On the other hand, PK is not responsible as a supervisor because he not exercise "effective control" of JS, as required by Section 28 (a)

PK owns Command Control swear JS and the RAF. However, the lack of control is because it is not intermittently JS. [39] Thus, JS had all the powers of decision in the RAF. Although has effective control, cracked down after the attack was conducted by the investigation.

III. PK is not responsible for the liability individual criminal under section 25 (3) (c)

Helping to aid another to commit a crime. [40] The rescuer must provide any legal assistance in commission of crime [41]. PK did not help the war crimes because they do not attend knowing that there was no specific intent of genocide. He had no intent to destroy, in whole or in part Arantics.

[1] Article 19

[2] Article 19; Sadat, Leila Nadya and S. Richard Carden. The new International Criminal Court: An uneasy revolution. 88 Georgetown Law Journal 381-474 (March 2000), p. 417

[3] Article 13

[4] Article 39 of the United Nations Charter, Lockerbie (1992) ICJ Reports 66-176 (J. Weeramantry); JA Frowein, "Article 39 ', B. Simma (ed.), The Charter of the United Nations: a commentary (1995) p.726-27

[5] Antonio Cassese, Paul Gaeta, John RWD Jones, The Rome Statute: A Commentary (Oxford University Press. Press, vol. I 2002), p. 630

[6] SC Res 808 (1993), SC Res 827 (1993), SC Res 995 (1994), ICTY, Tadic, IT-94-1-AR72, ¶ 30; B. Simma, supra n. 5, p. 610-612

[7] Article 41 of the Charter UN

[8] Cassese, supra n. 5, p. 631

[9] Ibid p. 634, 641

[10] Article 13 (c), 15 supra n.1

[11] Cassese, supra note 5 643, Article 40, Article 48 and the Declaration of the Conference of Rome: Italy Indonesia and the United Kingdom, Article 53

[12] 15 (2); Cassese, supra n. 5 p.661

[13] 15 (3)

[14] 15 (4)

[15] Tax Policy the ICC, preamble, ILC Draft Statute in the report of the Commission on its 46th session, UN GAOR, 49th Sess. Supp. No. 10, A/49/10 (1994)

[16] Article 18 (1)

[17] Ibid

[18] Andrew D. Mitchell, "Genocide, application rights and the relationship between international and domestic: Nulyarimma v Thompson (2000) 24 Melbourne University Law Review 15, p.18

[19] Sixth Commission, 83rd, 200 and 206

[20] Akayesu, Case No. ICTR-96-4-T, ¶ 517-520

[21] Kambanda Case No. ICTR-97-23-A ¶ 16.

[22] ICRC, Customary International Humanitarian Law, Vol I, Andrew D Mitchell, genocide, the implementation of human rights and the relationship between national and international: (2000 Nulyarimma v Thompson) 24 Melbourne University Law Review 15, p.18I, Article 38

[23] Article 8 (2) (b) (ix)

[24] Cassese, supra note 5, p.937

[25] 3rd Element Elements of Crimes, Article 8 (2) (b) (xviii)

[26] Resolution 1540

[27] Tadic, Supra n. 6, ¶ 81

[28] Introduction (3), Article 7, the elements of crime

[29] Kayishema and Ruzindana, case No. ICTR-95-1-T, ¶ 217-223; Delalic, Case No. IT-96-21-I, ¶ 356

[30] Bagilishema, Case No. ICTR-95-1A-T, ¶ 39; Delalic, Ibid, ¶ 70, ¶ 377

[31] Delalic, Ibid, ¶ 198.

[32] American Law Institute (1985), Vol I, 226, 243-244

[33] Finta (1990), 98 ILR (1994) 520 (Ontario CA) 595

[34] Fenrick, art. 2 (3) (e) min. 21

[35] Article 28 (b) (ii)

[36] Semanza, Case No. ICTR-97-20-T, ¶ 384

[37] Blagojevic, ¶ 27

[38] John Quigley, "State responsibility for ethnic cleansing '(1999) 32 University of California, Davis Law Review, 341, 350-351;

[39] Blaskic, Case No. IT-95-14-T, ¶ 528

[40] Supra n.36 Semanza, ¶ 384

[41] Bagilishema, supra n. 30, ¶ 32

About the Author

Final Year Law Student, International Islamic University Malaysia

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