International Criminal Court Briefing Paper

Transcription

1 International Criminal Court Briefing Paper Honourable delegates, It is our great pleasure to welcome you to the International Criminal Court at the Asia-Pacific Model United Nations Conference To the veterans of MUN, we promise you a very enriching debate that you ve never experienced before and to the newcomers, we are really excited to be a part of your maiden voyage. The following briefing will intend to familiarise you with the Committee, as well as its agenda. This briefing touches upon all the different aspects that are relevant and will lead to fruitful debate in the Committee. It will provide you with a bird s eye view of the gist of the issue. However, it has to be noted that the briefing guide only contains certain basic information which may form the basis for the debate and your research. You are the representative of your allocated country and it is our hope that you put in wholehearted efforts to research and comprehensively grasp all important facets of the diverse agenda. All the delegates should prepare well in order to make the committee s direction and debate productive. After all, only then will you truly be able to represent your country in the best possible way. Our aim in the committee sessions is to urge you to put your best foot forward and take back an unforgettable experience. We encourage you to go beyond this background guide and delve into the extremities of the agenda to further enhance your knowledge of a burning global issue. Don t forget Position Papers are due by the 19th of June, Make sure you join the committee facebook group here: For any further assistance feel free to contact us at: icc@amunc.net Best of luck, Rida Ahmed, Secretary-General, Amy Trang, Director of Committees, Regina Lee and Ruohan Zhao, Committee Director. 0

2 Letter from the Directors My name is Regina Lee and it is my pleasure to be co-directing the International Criminal Court at AMUNC 2015! I am currently in my fourth year of Arts/Law at Monash University with my Arts majors in International Studies and Geography. Having lived in Melbourne all my life, I am naturally a self-proclaimed foodie and coffee snob. In my spare time, you ll find me exploring the crooks and crannies of Melbourne and stuffing myself full of delicious food. I have never been to Perth before, but am excited to venture out west (given there is good coffee to keep me going of course!). This will be my third AMUNC and second one chairing. International Courts at MUN tend to be the most challenging, as well as operating independently from the rest of the conference. However, I hope that you will all come away from the conference having learnt something about international criminal law - or at the very least, made lots of new friends. And of course, Ruohan and I will be doing our best to ensure both happen over the course of the conference. I look forward to meeting all of you in Perth for what will be a week filled with nerding over international criminal law during our university breaks, killer dance moves at the socials and hopefully some classic Putin puns! My name is Ruohan Zhao and I am looking forward to being one of your chairs for the International Criminal Court at AMUNC I am a 5 th Year Arts/Law student with a major in German and minor in Political Science. I was born in China, grew up in the leafy suburbs of Auckland, New Zealand and now proudly call myself an honorary Canberran as a student of the Australian National University (come at me, bro!). My favourite procrastination methods are cooking, eating, watching makeup blogs on Youtube, jamming on my ukulele and planning my next overseas adventure. I am constantly attempting to satisfy my Wanderlust, so I am beyond excited to finally make the trek to the West Coast and enjoy all the gems Perth has to offer (QUOKKAS)! This is my 4 th AMUNC, but my first time chairing, so I will definitely be a bit nervous amongst your splendid company! I will endeavour to make your experience on the ICC the best it can be and hope that you will come away at the end of the week brimming with an in-depth knowledge of international criminal law, Putin memes and witty puns. I cannot wait to meet all of you and look forward to spending some quality ICC family time together during AMUNC! I hope your week will be one of the best you ll ever have and sincerely extend an invitation to all of you to dance crazily with Regina and I on the dance floor! 1

3 The About the ICC International Criminal Court (ICC) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression. The ICC sits in The Hague in the Netherlands, but may sit elsewhere if deemed desirable by the judges. The principal document of the ICC is the Rome Statute which governs its jurisdiction and operation. It came into force on 1 July 2002 and has currently 122 State Parties. The Rome Statute stipulates that the Court shall have jurisdiction only in crimes committed after that date and crimes committed by a national of a State Party, or within the territorial boundaries of a State Party. The Prosecutor acts as the chief investigator of the Court, and the Court will only have jurisdiction if the Prosecutor brings a case before the Court. The Prosecutor may open a case if: A State Party refers one or more crimes within the Court s temporal and territorial jurisdiction to the Prosecutor; The Security Council refers a case to the Prosecutor; or The Prosecutor initiates an investigation. The ICC does not replace national criminal justice systems, and rather, is designed to complement them. It can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling genuinely to do so. This might occur where proceedings are unduly delayed or are intended to shield individuals from their criminal responsibility. States retain primary responsibility for trying the perpetrators of the most serious of crimes. The ICC consists of 18 judges who are assigned to either the Pre-Trial Division (seven judges), the Trial Division (six judges), and the Appeals Division (five judges). They are assigned to their respective Chambers according to their Division. For more information on the ICC s operations, refer to Understanding the International Criminal Court. Operation of the ICC The ICC s Rules of Procedure and debating format is very different to the traditional committee style you may be familiar with. Instead of a plenary debate, the committee will instead be simulating a mock trial of the ICC. This means that delegates will not represent countries, but judges. 2

4 In practice, individual State Parties or the Security Council refer situations of crime to the Court of the Prosecutor, if such a crime is within ICC jurisdiction. The Prosecutor evaluates available evidence and will commence an investigation unless it is determined that there is no reasonable basis to proceed. The Prosecutor can also initiate an investigation if, after collecting information, concludes that there is a reasonable basis for one. The Prosecutor will then request the Pre-Trial Chamber to authorise an investigation. The Prosecutor s investigation responsibility. will cover all the relevant facts and information in the assessment of criminal Pre-Trial Chamber During the investigation, each alleged situation of crime will be assigned to a Pre-Trial Chamber (PTC). Essentially, their role is to supervise the Office of the Prosecutor during their investigatory and prosecutorial activities, guarantee rights of suspects, victims and witnesses and ensure integrity of proceedings. Each PTC is also responsible for the judicial aspects of the proceedings, including issuing arrest warrants or a summons to appear for an individual alleged to have committed a crime under the Rome Statute. If the individual has been either surrendered to or voluntarily appears before the Court, the PTC will hold a hearing to confirm the charges which will stand at trial. Trial Chamber After confirmation of charges, the case is assigned to a 3-judge Trial Chamber. The actual criminal trial will take place in this Chamber and shall be conducted in a fair and expeditious manner, which full respect for the rights of the accused and due regard for the protection of victims and witnesses. The accused is innocent until proven guilty, and the onus is on the Prosecutor to prove that the accused committed the alleged crime. The accused is represented by a defence counsel. During the trial, witnesses can be called to be examined and cross-examined. At the conclusion of the trial, the Chamber will hand down its decision. If the accused is found guilty, the Chamber can issue a prison sentence of up to 30 years or, in extreme circumstances, life imprisonment and order reparations to victims in the form of compensation, restitution or rehabilitation. There is also an Appeal Chamber comprising of 5 judges. The Appeal Chamber can hear appeals from the Prosecutor or concerned nation States regarding any decision during the Pre-Trial and Trial phases. Following the delivery of a judgment, both the Prosecutor and accused may also appeal the decision to the Appeal Chamber. The Appeal Chamber can decide to uphold, reverse or amend the appealed decision, or even order a new trial under a different Trial Chamber. Structure of the ICC at AMUNC The committee shall be made up of delegates acting as judges and two directors, each acting as Prosecution and Defence, and who will also be facilitating deliberations. 3

5 At the beginning of the first committee, the directors will present their submissions both orally and in writing. At the conclusion of the submissions, witnesses will be presented before the court. Judges may cross-examine both counsel and witnesses during this time in order to ascertain more information to aid them in their judgements. Deliberations will begin after the examination of witnesses. The aim of deliberations is for the judges to produce a written judgement on the case before them. While a majority judgement is encouraged, judges may write dissenting and minority opinion should they wish. The judgement/s do not have to be passed by the court, but it is encouraged that judges discuss the issues at hand and endeavour to find a consensus. A more detailed outline of the court procedures can be found in the Rules of Procedure document. Do not worry if this sounds a bit overwhelming at the moment - we ll be going through the committee structure and Rules of Procedure together during AMUNC so everyone is on the same page! Material Facts Please note that some case facts have been altered from reality in order to suit the Conference. Please only consider these facts during your research and preparation and do not use external/other material facts unless permission is given by the directors or disclosed by counsel or witnesses during the Conference. This is to ensure equality between all delegates. However, additional research in applicable international criminal law principles and precedent is most encouraged. Background: Euromaidan and Unrest in Southern and Eastern Ukraine Civil unrest began in November 2013 when the then Ukrainian President Viktor Yanukovych sought to establish closer ties with the Russian Federation while backing away from an association agreement with the European Union. Protests and subsequent rioting was centred in the capital, Kiev, and resulted in deadly clashes between protestors between special police forces. In February 2014, President Yanukovych fled into exile in Russia via Kharkiv and Crimea. In May 2014, Petro Poroshenko, running on a pro-european Union platform, was elected President of Ukraine. Meanwhile, in predominantly Russian-speaking Eastern and Southern Ukraine, a majority of the population opposed the Euromaidan protests and supported closer ties with Russia. Immediately following the ousting of President Yanukovych, a secession crisis began on the Crimean Peninsula. Unmarked, armed Russian soldiers entered Crimea on the premise of protecting the Russian naval port Sevastopol. In March 2014, a referendum was held in which was passed that Crimea should secede to Russia. However, the vote was not monitored and allegations of intimidation by Russian forces were made. The UN General Assembly has voted to oppose the Russian annexation of Crimea. 4

6 In the oblast (Ukrainian equivalent of state or province) of Donetsk and Luhansk, self-declared local militia, seized government buildings, police stations and military bases and declared independence from Ukraine, though this has been largely internationally condemned. Since then, heavy fighting between these separatist militia and Ukrainian government forces has been ongoing. Ukraine, the United States and European Union countries have all accused Russia of training and arming the separatists as well as sending unmarked soldiers to fight; all of which is denied by Russia. In February 2015, a ceasefire was negotiated in Belarus between Ukraine, Russia and separatist leaders which included the withdrawal of heavy weaponry from the frontline, the withdrawal of foreign troops and the normalisation of the Ukrainian-Russian border. However, sporadic yet deadly clashes have broken out since then. The Prosecutor v. Vladimir Putin 1. Ukraine is a country in Eastern Europe governed under as a unitary semi-presidential constitutional republic. The Head of State is also known as the President, whose powers include signing and vetoing laws made in Parliament, negotiating and concluding international treaties and agreements, and representing the country in international relations. The current President of Ukraine is Petro Poroshenko. 2. The Russian Federation is a country spanning from Eastern Europe to North Eastern Asia. The Head of State is also known as the President and is the holder of the highest office within the country as well as the Supreme Commander-in-Chief. The current President of Russia is Vladimir Putin. 3. Ukraine and the Russian Federation share a land border of approximately 2295 kilometres and a sea border of 321 kilometres. 4. Since February 2014, armed conflict has been ongoing between Ukrainian Government forces and separatist militia from the self-proclaimed Donetsk People s Republic and Luhansk People s Republic (DPR and LPR) in a region in Eastern Ukraine known as the Donbass Region. 5. In February 2015, the Minsk II ceasefire agreement was negotiated and signed by representatives of the Ukrainian and Russian Governments and the Organisation for Security and Co-operation in Europe (OSCE), and Alexander Zakharchenko and Igor Plotnitsky, leaders of the the DPR and LPR. 5

7 6. On 1 March 2015, in a joint statement, the leaders of the DPR and LPR announced their immediate withdrawal from the Minsk II agreement with the Russian Government issuing a supporting statement reiterating their support for these Republics and their actions. 7. On 9 March 2015, Alexander Zakharchenko and Igor Plotnitsky requested the Russian Federation to use military force to establish legitimacy, peace, law and order, stability and defend the people of Donetsk and Luhansk. 8. On the same day, President Putin requested and received authorisation from the Russian Federal Assembly to deploy fully armed Russian military forces to the Donbass region in order to secure the borders of the DPR and LPR. 9. On 10 April 2015, the OSCE, who had been acting as an international monitor of the conflict, announced the immediate evacuation of all its personnel in the Donbass region citing the escalation in violent heavy conflict and failing security situation. 10. On 30 April 2015, the All-Russia State Television and Radio Broadcasting Company announced the annexation of DPR and LPR into the Russian Federation. 11. On 29 May 2015, an interim report was released by the OSCE detailing their observations from 9 March 2015 until their withdrawal. The report detailed mass arrests and disappearances of pro-ukrainian supporters by Russian forces and DPR and LPR militias. The OSCE estimated approximately civilians and 4000 military personnel had been imprisoned and/or persecuted from 9 March to 9 April On 30 May 2015, a defecting soldier from the Russian Army spoke with journalists from the the British Broadcasting Corporation in Kiev. He detailed that orders were given to Russian soldiers to arrest civilians who were suspected of anti-russia, pro-kiev political beliefs; being followers of the Ukrainian Orthodox Church or refused to cede to orders to use the Russian language. Those arrested were held indefinitely and denied access to lawyers. It was the belief of the defecting soldier that those arrested would be put on a mass trial in the coming month and given a lengthy sentence. 13. In the following days, ten other defecting soldiers from the Russian Army from differing units spoke to various Western media outlets detailing similar orders were given to their units too. 14. On 1 June 2015, acting as a result of the OSCE report and the evidence provided by the defecting soldiers, the Office of the Prosecutor of the International Criminal Court under Article 15 of the Rome Statute initiated investigations into alleged crimes against humanity in the Donbass region. 15. On 22 June 2015, an application for arrest of Vladimir Putin was made by Fatou Bensouda in accordance with Article 58 of the Rome Statute. The Pre-Trial Chamber, having examined the evidence presented to the Court, held that there were reasonable grounds to believe that Vladimir Putin ordered a crime against humanity for imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law and persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds within the meaning of Articles 7(1)(e) and 7(1)(h) and 28(a) of the Rome Statute from 9 March 2015 to present times. 6

8 16. On 23 June 2015, an arrest warrant was issued to ensure Vladimir Putin s appearance before the Court; however he has not been surrendered to the Office of the Prosecutor at The Hague, The Netherlands. 17. The case was assigned to Trial Chamber I with the view of holding a hearing to press charges on which the Prosecutor was seeking trial. The Pre-Trial Chamber has determined the matter will be heard in absence of Vladimir Putin and has accordingly directed for appropriate representation under Article 61(2)(b) of the Rome Statute. 18. On 24 June 2015, the Pre-Trial Chamber decided the trial is to begin on 30 June 2015 in Perth, Australia. Map of Ukraine and the Regions under Russian/Separatist control 7

9 Profiles Vladimir Putin Vladimir Putin (b. 7th october 1952) is the current President of Russia. He was born in modern day Saint Petersburg. Putin graduated with a law degree from Leningrad State University in He joined the Communist Party of the Soviet Union while at university, and remained a member until the dissolution of the party in After graduating, Putin joined the KGB in He was stationed in Dresden from , where his tasks included gathering illegal intelligence and coordinating foreign recruitments with Stasi officials. After the fall of the Berlin Wall in 1989, Lenin returned to Leningrad and began to climb the political ladder. In 1997, President Boris Yeltsin appointed him deputy chief of Presidential Staff and later the head of the FSB (a successor agency to the KGB). After Yeltsin s resignation in 2000, Putin cinched the Presidency and was inaugurated on the 17th May Putin has remained a popular leader in Russia, although extremely controversial on issues such as security and human rights. 8

10 In 2014, the annexation of the Crimea catapulted Russia and Putin into the international spotlight. Putin has consistently denied that Russian troops had assisted the pro-russian forces by sending equipment and military support. However, the Ukrainian military reported that there had been intensive movement of troops and equipment from Russia to the separatist controlled parts of eastern Ukraine. Putin s relations have been strained due to these developments and the widening dichotomy between Russia and the West is taking shape in the form of the conflict in Ukraine. Putin has been strong and heavy-handed in his approach to the Ukrainian invasion and it remains to be seen whether the international community will take a strong stand against his tactics in Ukraine. Petro Poroshenko Petro Poroshenko (b. 26th September 1965) is the current President of Ukraine. He began his term in 2014 and previously served as the Minister of Foreign Affairs and the Minister of Trade and Economic Development. Poroshenko is a prominent business man and owns a number of confectionary companies, earning him the nickname of Chocolate King. Poroshenko is officially listed on Forbes list of billionaires and also owns assets in television channels, shipyards and car and bus plants. Politically, Poroshenko was a member of the Our Ukraine Bloc from After the removal of President Viktor Yanukovych in 2014, Poroshenko was elected. Poroshenko has vowed to continue military operations by the Ukrainian government in the separatist republics of Donetsk and Lugansk. He has called for international intermediaries in negotiations between Ukraine and Russia and is seeking for the return of Crimea to Ukraine. Poroshenko met with Putin on August 26th 2014, seeking a political compromise which would consider the interests of the Russian-speaking people in Eastern Ukraine. Thus far, this issue has stagnated and there is no realistic peace plan in sight. Alexander Zakharchenko 9

11 Alexander Zakharchenko (b. 1976) is the current head of state and Prime Minister of the self-proclaimed state of the Donetsk People s Republic. He is a pro-russian separatist Leader. Zakharchenko agreed to the Minsk II peace treaty, which was an agreed package of measures to alleviate the war in the Donbass region of Ukraine. Most significantly, it called for an immediate and full ceasefire in particular districts of Donetsk and Luhansk. Zakharchenko is committed to exploiting the Donetsk region s rich resources and wants to bring stability to the Donetsk region. Igor Plotnitsky Igor Plotnisky (b. 26th June 1964) is the Head of the unrecognised Luhansk People s Republic. Plotnisky has declared support for the pro-separatist forces. 10

12 JURISDICTION OF THE ICC Under the Rome Statute, the ICC has jurisdiction over genocide, crimes against humanity, war crimes and crimes of aggression. The requisite physical and mental elements for each crime are detailed in a supplementary text called the Elements of Crime. The ICC will have jurisdiction to begin proceedings against individuals accused of the crimes as listed under the Rome Statute. This means groups or States cannot be prosecuted by the ICC. Apart from direct liability for commission of a crime, individuals who have aided, abetted or otherwise assisted in the commission of a crime are amenable to ICC jurisdiction. Military commanders or superior officers also have their responsibility defined under the statute. Prosecutorial policy focuses on those who bear the greatest responsibility for crimes, irrespective of their official position. At AMUNC 2015, jurisdiction is not an issue since it has already been established by the ICC Pre-Trial Chamber. Therefore, the committee session will proceed ahead to the Trial Chamber, beginning with the examination and cross-examination of witnesses. Witness Examination/Cross-Examination The directors will release the witnesses closer to the conference (we like to keep surprises!). Judges will have a chance to examine and cross-examine the witnesses before retiring to deliberate on the judgment. Prior to the conference, your directors will upload a guide to examining the witnesses at trial. Please read this carefully before the first committee session

13 JUDGMENT WRITING Generally speaking, for Putin to be found guilty, both the physical and mental element of the crime must be made out. There have been 2 charges laid out against Putin. Thus, the 2 charges must be considered separately. The physical element depends on the particular charge which has been laid against Putin. Therefore, both charges have a different physical element. To ascertain the physical and mental elements, judges will need to refer to the supplementary Elements of Crime document. The two charges against Putin are: (1) Crime Against Humanity of imprisonment or other severe deprivation of physical liberty (Art 7(1)(e)); and (2) Crime Against Humanity of persecution (Art 7(1)(h)). Before AMUNC, Judges should read the elements for these two charges and separate them into physical and mental elements. Judges should also break down each element and identify the necessary legal content for that element. For example, if an element was violation of fundamental rules of international law, then Judges should look into the jurisprudence of what such a violation constitutes (i.e. what are some identifiable rules of customary international law as applicable to this situation?). When researching, Judges should have recourse to the different possible sources of international law as expounded under Art 21. Most of the evidence will be brought to the trial. Therefore, at this preliminary stage, it is important for the Judges to brush up on the elements of crime and what each element requires to be satisfied. Such knowledge can help direct and guide questioning during witness examination and will allow Judges to make a head start on the main issues before Trial begins. Once all evidence has been adduced, Judges can start the process of applying international criminal law to the facts. ARTICLE 21: APPLICABLE LAW OF THE ICC The ICC will have regard to sources of law in the following order of priority: (a) The Rome Statute, Elements of Crime and Rules of Procedure; (b) Where appropriate, applicable treaties and principles of international law, including the established principles of international law of armed conflict; (c) General principles of law derived by the Court from national laws, including national laws from States that would normally exercise jurisdiction over the crime, which would not be inconsistent with the Statute, established and customary international law. The ICC is able to use precedent from past judgments in future decisions, and the application of law must be consistent with internationally recognised human rights law. 12

14 The various sources of applicable law require Judges to be creative in their research. Judges must also be aware of the weighting they give to particular sources, and which sources may be more appropriate in a certain case. General Principles of Criminal Law These general principles of criminal law are important to keep in mind during trial: Nullum crimen sine lege (Art 22) : a person is not criminally responsible unless their conduct constitutes a crime under ICC jurisdiction. Nulla poene sine lege (Art 23) : a person convicted by the Court may be punished only in accordance with this Statute. Non Retroactivity rationae personae : no person is criminally responsible under this statute for conduct prior to the entry of this Statute. 13

15 Individual Criminal Responsibility Article 25 sets out the relevant principles for individual criminal responsibility. Article 25(3) stipulates that a person is criminally responsible when they: (a) Commit such a crime, whether individually or jointly; (b) Order, solicit or induce the commission of a crime which is either occurs or is attempted; (c) Aid, abet or otherwise assists the commission of the crime, its attempted commission or provides means for its commission; (d) Contribute in any other way to the commission or attempted commission by a group of persons with a common purpose (joint criminal enterprise); (i) (ii) with the aim of furthering the criminal purpose; or with the knowledge of the group s intention to commit the crime. (e) Directly and publicly incites others to commit genocide; (f) Attempt to commit a crime by taking substantial steps to its execution, but that crime does not occur because of circumstances independent of the person s intentions. If a person who voluntarily and completely abandons the crime or prevents its commission is not liable under this Statute. This provision is broad and covers not only direct perpetrators, but those who were indirectly involved in the commission of the crime, irrespective of their degree of involvement. Therefore, individual criminal responsibility attaches to any individual whose actions can be characterised as falling into a category under Article 25. This provision is also modified by the operation of the ICC s Elements of Crime, which lays out the specific elements needed to be satisfied. For example, if the element which needed to be satisfied was that the perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights, then an individual would be responsible if they directly committed the act, abetted someone else in committing the act or was part of a joint criminal enterprise which committed the act. Judges should be aware that individual criminal responsibility is not merely for acts committed directly and should be open to other ways in which individual criminal responsibility might attach to a particular act. Intention Definition Where intent is a possible mental element, Judges should refer to its definition under Article 30(2) of the Rome Statute. According to this definition, intention is when: (a) the person means to engage in the conduct (where physical element is conduct); 14

16 (b) the person means to cause a consequence or is aware that it will occur in the ordinary course of events (where physical element is a consequence). Knowledge Definition Where the mental element requires knowledge, Article 30(3) stipulates that the accused must be aware that a circumstance exists or a consequence will occur in the ordinary course of events. Responsibility of Commanders and Other Superiors Article 28 is a special provision relating to the responsibility of commanders and other superiors for forces under their effective command or authority and control. This Article applies when forces engage in activity outside the mandate of their superior s order but the commander failed to exercise control over these forces. This provision ensures that superiors and commanders will not be exculpated from criminal responsibility if they do not take steps to prevent their forces from committing crimes beyond their orders. To be found liable, the commander knew, or should have known due to circumstances at the time, that their forces were committing or about to commit such crimes. They also must fail to take all necessary and reasonable measures within their power to prevent or repress their commission or submit the matter to competent authorities for investigation and prosecution. If the superior and subordinate relationship does not fall into an established category, a superior shall be criminally responsible if the crimes concerned were within the effective control and responsibility of the superior, and they had knowledge of the crimes and failed to prevent them. Grounds for Excluding Criminal Responsibility Under Article 31(1), there are possible grounds under which criminal responsibility is excluded: 1. Mental disease or defect; 2. State of intoxication; 3. Reasonable self-defence; 4. Duress; 5. Or some other reason not referred to under Article 31(1). Judges should research the law as applicable to these defences, as this knowledge will help when extracting evidence from witnesses during Trial. To prepare, Judges should also keep an open mind as to the possibility of a defence in this case, and acquaint themselves with the possible arguments to be made by both the Prosecution and Defence. Crimes Against Humanity 15

17 Judges should consult the Elements of Crime document for the particular elements which need to be satisfied in order for the charges to be found. Both the Rome Statute and the Elements of Crime make reference to the actions being charged as being part of a widespread or systematic attack directed against a civilian population. This statement has previously been clarified by the ICC. Broken down part-by-part, it is as follows: Widespread: the large scale nature of the attack, which should be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims and may be cumulative effect of a series of inhumane (Bemba case, Katanga, para 33) Systematic attack: organised nature of the acts of violence and the improbability of their random occurrence (Katanga), which can often be expressed through patterns of crimes, in the sense of non-accidental repetition of similar criminal conduct on a regular basis (Bemba) Directed at: the primary object of the attack and cannot merely be an incidental victim (Bemba, para 75) Civilian population: Civilian as opposed to armed forces (Authorising of Investigation in the Situation in Kenya Decision, para 82) Furthermore, the Elements of Crime document stipulate that such attacks must be pursuant to or in furtherance of a State or organisational policy to commit such attack. In this context, when considering whether there was an organisational policy, judges should consider: whether the group is under a responsible command, or has an established hierarchy; whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; whether the group exercises control over part of the territory of a State; whether the group has criminal activities against the civilian population as a primary purpose; whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; whether the group is part of a larger group, which fulfils some or all of the above-mentioned criteria. It should be noted however, that these considerations do not make up a rigid legal definition, and do not need to be exhaustively fulfilled (Kenya, para 93) Judges should be reminded that there are more elements to crimes against humanity, both general and specific to persecution and imprisonment, than the ones mentioned above. 16

18 Main Issues To Be Considered Again, please note that the issue of jurisdiction will not be discussed at AMUNC It will be assumed that the Pre-Trial Chamber found that there was jurisdiction to hear the case. There will be lots of scope for discussion regarding the charges being laid. This will include how to define both persecution and imprisonment, the relevant international law and how it should apply in this case. There is very little precedent in these two branches of crimes against humanity, hence judges will have to decide whether the actions at hand actually constitute both persecution and imprisonment. It is possible that judges may need to look to other sources of international law such as treaties when deciding this. Other question which must be answered in considering crimes against humanity include: Was there an actual attack? Was it directed against a civilian population? Was it widespread and systematic? Was such an attack part of an organisational policy? Did Putin have knowledge of such attacks? Can Putin be held responsible as a commander? Can he be held responsible for the actions of his own military and the pro-russian forces of Donetsk and Luhansk? Judges wishing to challenge themselves may also separately consider whether this case falls under crime of aggression. However, this is currently an undeveloped part of international criminal law and has yet to come into force under the Rome Statute. Judges should only consider this having after considered crimes against humanity and there is no expectation that this issue will be considered at all. Final Tips As international criminal law is a still developing and largely unsettled body of law, Judges will need to refer to more than just strictly legal sources. Academic commentary will be important in gathering the knowledge needed to apply the law to the facts, especially in areas which the law is contentious and no black letter principle has been expounded. Unsurprisingly, the case law surrounding international criminal law is quite sparse. Good decisions to read in preparation include judgments handed down in the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). While case law is last in the priority of applicable sources of law (they are sometimes not useful because they are contained to a unique set of circumstances), it will be important for Judges to understand the legal reasoning and interpretation which led to a particular outcome. It will also be useful in seeing how a judgment is written and formatted. 17

19 Aside from legal research, Judges should also brush themselves up on the conflict between Ukraine and Russia. While this background research may not be directly relevant to legal judgment writing, it is important to understand the power struggle and the reasons behind why such conflict began in the first place. It will also help Judges to map out a constellation of figures in this case and where the tensions amongst the main actors lie. This information will be useful in the witness examination phase of the Trial and can help draw out useful facts from each witness. Lastly, do not be overwhelmed with all this information! It may seem daunting, but your directors will be here to answer any questions and go through the process with Judges step by step! The most important thing while preparing is to make sure you have a general idea of how the ICC framework operates, the main principles and sources of international criminal law, what needs to be satisfied for each charge and what issues to research. We are not expecting Judges to know the law back to front! However, the more research you do, the easier it ll be for you to spot, and grapple with, the complex issues of international criminal law. We hope this guide has given you a starting point for your research. We have only canvassed the surface and hope that your research will further enrich your understanding of how international criminal system operates. Good luck with your pre-amunc preparation - your directors are super excited to spend a week of debating, dancing and Putin-punning with you all! 18

20 Useful Links Understanding the International Criminal Court: Rules of Procedure of the Assembly of States Parties: Rules of Procedure and Evidence: RulesProcedureEvidenceEng.pdf ICC Rome Statute: h.pdf ICC Elements of Crime: eseng.pdf ICC Case Database: ICTR Database: ICTY Case Databasse: 19