IBA ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

GOVERNMENT COUNSEL

TEAM NUMBER: 12

TOTAL WORD COUNT: 9093

2023
 Original: English No. : ICC -
Date: 06 March 2023

THE APPEAL CHAMBER

Case before the International Criminal Court:

PROSECUTOR V. CORLIS VALERON OF THE REPUBLIC OF REGALE

The Counsel for the State of Giskar’s Submission in the Appeal from the Pre-Trial Chamber’s
Decision on Confirmation of Charges against Defendant
Corlis Valeron of The Republic of Regale

PUBLIC DOCUMENT

Source: Counsel for the State of Giskar

 TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................... 3

LIST OF ABBREVIATIONS ........................................................................................................... 5

INDEX OF AUTHORITIES ............................................................................................................. 6

STATEMENT OF FACTS .............................................................................................................. 11

ISSUES .............................................................................................................................................. 13

SUMMARY OF ARGUMENTS ..................................................................................................... 14

WRITTEN ARGUMENTS ............................................................................................................. 15

I. GISKAR’S ACCEPTANCE OF JURISDICTION CONCERNING INTERNATIONAL

CRIMES COMMITTED IN THE GOLDEN LOWLANDS WAS VALID ............................... 15

A. Giskar may grant the ICC jurisdiction over a situation pre-dating its acceptance of
jurisdiction under Article 12(3) of the Statute ........................................................................... 15

a) The Article 12(3) declaration may have a retroactive effect on crimes committed on the
territory of the country that accepts the jurisdiction of the ICC ................................................ 15

b) The Golden Lowlands were a part of Giskar during the period of the commission of alleged
crimes ................................................................................................................................................. 16

c) Giskar’s full control over the Golden Lowlands territory is not required for the Court to
exercise its jurisdiction .................................................................................................................... 17

B. The declaration lodged under Article 12(3) complies with the principle of sovereignty
and can be extended to separate territories ............................................................................... 18

II. THE COURT HAS SUBJECT MATTER JURISDICTION IN THIS CASE UNDER
ARTICLE 7(1)(K) OF THE ICC STATUTE ................................................................................ 18

A. The perpetrator inflicted great suffering, or serious injury to the body or to mental or
physical health, by means of an inhumane act .......................................................................... 18

a) OBA, being an act of ecocide, was an inhumane act ................................................................... 18

b) Valeron has inflicted great suffering upon the population of the Golden Lowlands .............. 19

c) Valeron has inflicted serious injury to mental health .................................................................. 19

d) Valeron has inflicted great injury to the body and to physical health ...................................... 20

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 B. Such act was of a character similar to any other acts referred to in Article 7(1) of the
Statute ............................................................................................................................................ 21

a) Such act was of a similar nature to any other acts referred to in Article 7(1) of the Statute .21

b) Such act was of a similar gravity to any other acts referred to in Article 7(1) of the Statute 22

C. The conduct was committed as part of a widespread or systematic attack directed

against a civilian population ........................................................................................................ 23

a) There are substantial grounds to believe that OBA was an attack directed against the
civilian population ............................................................................................................................ 23

b) The attack was committed in furtherance of an organisational and a state policy ................. 24

c) There are substantial grounds to believe, that the attack was widespread and systematic ... 24

d) There is a nexus between the acts of the perpetrator and the attack ......................................... 25

D. Valeron is individually criminally responsible under Article 25(3)(a) as a co-

perpetrator for the crime under Article 7(1)(k) of the Statute ................................................ 25

a) The perpetrator fulfilled the subjective elements of the crime ................................................... 26

b) The accused fulfilled objective elements of the co-perpetrating ................................................ 27

III. THERE IS SUFFICIENT AND LEGITIMATE EVIDENCE TO CONFIRM THE

CHARGES AGAINST VALERON................................................................................................ 29

A. IIM Report is admissible according to the Rules of the ICC ................................................. 30

a) The Report is of high probative value ............................................................................................ 30

b) Admission of the Report does not cause any prejudice ............................................................... 32

B. Absence of corroboration does not diminish Report’s probative value .......................... 33

SUBMISSIONS ................................................................................................................................ 34

4
 LIST OF ABBREVIATIONS

CEO Chief Executive Officer

i.e. id est (‘in other words’)

ibid. ibidem (‘in the same place’)

ICC, the Court International Criminal Court

IHT Iraqi High Tribunal

IIM International Investigative Mechanism

OBA “Operation Bug Attack”

OTP Office of the Prosecutor

SCSL The Special Court for Sierra Leone

UN United Nations

UNGA General Assembly of the United Nations

5
 INDEX OF AUTHORITIES

ICC DOCUMENTS

1. Rome Statute of the International Criminal Court (entered into force on 1 July 2002), [‘Statute’]
2. Republic of Côte d’Ivoire, Declaration dated 18 April 2003, ICC-02/11-01/11-129-Anx16, [‘Côte
d’Ivoire Declaration’]
3. The Office of the Prosecutor, Report on Preliminary Examination Activities (2015), [‘OTP
Report’]
4. The Office of the Prosecutor, Report on Preliminary Examination Activities (2016), [‘OTP Report
2016’]
5. The Office of the Prosecutor, Report on Preliminary Examination Activities (2017), [‘OTP Report
2017’]
6. The Office of the Prosecutor, Report on Preliminary Examination Activities (2018), [‘OTP Report
2018’]
7. The Office of the Prosecutor, Report on Preliminary Examination Activities (2019), [‘OTP Report
2019’]
8. The Office of the Prosecutor, Report on Preliminary Examination Activities (2020), [‘OTP Report
2020’]
9. Elements of Crimes (2 November 2000), PCNICC/2000/1/Add.2 [‘Elements of Crimes’]
CASES

INTERNATIONAL CRIMINAL COURT

1. Prosecutor v. Laurent Koudou Gbagbo, (Decision on the Corrigendum of the challenge to the
jurisdiction of the ICC on the basis of articles of the Statute) [2012], ICC-02/11-01/11
2. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, (Decision on the confirmation of
charges) [2008], ICC-01/04-01/07, [‘Katanga-I’]
3. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, (Judgment pursuant to article 74 of
the Statute) [2014], ICC-01/04-01/07, [‘Katanga-II’]
4. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, (Decision on the Bar Table Motion
of the Defence of Germain Katanga) [2011], ICC-01/04-01/07-3184, [‘Katanga-III’]
5. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, (Decision on the Prosecutor's Bar
Table Motions) [2010], ICC-01/04-01/07, [‘Katanga-IV’]
6. Prosecution v. Dominic Ongwen, (Trial Judgment) [2021], ICC-02/04-01/15, [‘Ongwen’]

6
7. Prosecutor v. Bemba, (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the
Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) [2009] ICC-01/05-01/08-424,
[‘Bemba-I’]
8. Prosecutor v. Bemba, (Decision on the admission into evidence of items deferred in the Chamber's
"Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to
Article 64(9) of the Rome Statute") [2013], ICC-01/05-01/08-2299 [‘Bemba-II’]
9. Prosecutor v. Bemba, (Public redacted version of the First decision on the prosecution and
defence requests for the admission of evidence) [2011], ICC-01/05-01/08-2012-Red, [‘Bemba-
III’]
10. Prosecutor v. Bemba, (Judgment pursuant to Article 74 of the Statute) [2016], ICC-01/05-01/08,
[‘Bemba-IV’]
11. Prosecutor v. Ruto et al., (Decision on the Confirmation of Charges Pursuant to Art. 61(7)(a) and
(b) of the Rome Statute) [2012], ICC-01/09-01/11, [‘Ruto’]
12. The Prosecutor v. Bosco Ntaganda, (Trial Judgment) [2019], ICC-01/04-02/06 [‘Ntaganda’]
13. Prosecutor v Thomas Lubanga Dyilo, (Decision on the confirmation of charges) [2007] ICC-
01/04-01/06-803-tEN, [‘Lubanga-I’]
14. Prosecutor v Thomas Lubanga Dyilo, (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo
against his conviction, Appeal Chamber) [2014], ICC-01/04-01/06-3121-Red. [‘Lubanga-II’]
15. The Prosecutor v. Thomas Lubanga Dyilo, (Judgment pursuant to Article 74 of the Statute)
[2012], ICC-01/04-01/06-2842, [‘Lubanga-III’]
16. Prosecutor v. Thomas Lubanga Dyilo, (Decision on the admissibility of four documents) [2008],
ICC-01/04-01/06, [‘Lubanga-IV’]
17. The Prosecutor v. Al Bashir, (Decision on the Issuance of a Warrant of Arrest) [2009], ICC-02/05-
01/09-3, [‘Al Bashir’]
18. Prosecutor v. Al Hassan, (Prosecution’s second request for the admission of documentary
evidence from the bar table) [2021], ICC-01/12-01/18, [‘Al Hassan’]
19. Prosecutor v. Bosco Ntaganda, (Decision on Admissibility of Evidence and Other Procedural
Matters) [2014], ICC-01/04-02/06-308, [‘Ntaganda’]
20. Prosecutor v. Bahr Idriss Abu Garda, (Decision on the Confirmation of Charges) [2010], ICC-
02/05-02/09, [‘Bahr Idriss Abu Garda’]
21. Situation in Palestine, (Decision on the Prosecution request in Palestine) [2021], ICC-01/18,
[‘Situation in Palestine’]
22. Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, (Decision
on the Prosecution’s Request) [2018], ICC-RoC46(3)-01/18-37, [‘Situation in the People’s
Republic of Bangladesh’]
7
23. Situation in Georgia, (Decision on the Prosecutor’s request for authorization of an investigation)
[2016], ICC-01/15, [‘Situation in Georgia’]
INTERNATIONAL COURT OF JUSTICE

1. International Court of Justice, Judgment of 18 November 1953, Nottebohm case (Liechtenstein

v. Guatemala), ICJ Reports, 1953, [‘Nottebohm’]
INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA

1. Prosecutor v. Dusko Tadic (Decision on the defence motion for interlocutory appeal on
jurisdiction) [1995], (IT-94-1), [‘Tadic-I’]
2. Prosecution v. Duško Tadić, (Trial Judgment) [1997], IT-94-1-T, [‘Tadic-II’]
3. Prosecutor v. Kupreskic et al., (Trial Judgment) [2000], IT-95-16-T, [‘Kupreskic’]
4. Prosecution v. Mucić et al. ("Čelebići"), (Trial Judgment) [1998], IT-96-21-T, [‘Čelebići’]
5. Prosecution v. Kordić & Čerkez, (Trial Judgment) [2001], IT-95-14/2-T, [‘Kordic’]
6. Prosecution v. Krstić, (Trial Judgment) [2001], IT-98-33-T, [‘Krstić’]
7. Prosecutor v. Jadranko Prlić, (Trial Judgment) [2013] IT-04-74-T, [‘Prlic’]
8. Prosecutor v Mrksic & Sljivancanin, (Appeals Judgment) [2009], IT-95-13/1-A, [‘Mrksic’]
9. Prosecutor v. Tihomir Blaškić, (Trial Judgment) [2000], IT-95-14-T, [‘Blaskic’]
10. Prosecutor v. Naletilić and Martinović, (Trial Judgement) [2003], IT-98-34-T, [‘Naletilic’]
11. Prosecutor v. Krnojelac, (Trial Judgement) [2002], IT-97-25-T, [‘Krnojelac’]
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

1. Prosecutor v. Athanase Seromba, (Appeal Judgment) [2008], ICTR-2001-66-A, [‘Seromba’]

2. Prosecutor v. Akayesu, (Trial Judgement) [1998] ICTR-96-4-T, [‘Akayesu’]
3. Prosecutor v. Bagilishema, (Trial Judgment) [2001], ICTR-95-1A-T, [‘Bagilishema’]
4. Prosecutor v. Alfred Musema, (Judgement and Sentence) [2000], ICTR-96-13-T, [‘Mesuma’]
5. Prosecutor v. Rutaganda, (Judgement and Sentence) [1999], ICTR-96-3-T, [‘Rutaganda’],
6. Prosecutor v. Semanza, (Trial Judgement) [2003], ICTR-97-20-T, [‘Semanza’]
7. Prosecutor v. Ndindiliyimana et al., (Appeal Judgment) [2014], ICTR-00-56, [‘Ndindiliyimana’]
8. Prosecutor v. Nizeyimana, (Judgment and Sentence) [2012], ICTR-2000-55C-T, [‘Nizeyimana’]
EXTRAORDINARY CHAMBER IN THE COURTS OF CAMBODIA

1. Prosecutor v. Nuon Chea and Khieu Samphan, (Trial Judgment) [2007], 002/19-09-2007,
[‘Nuon’]

8
MECHANISM FOR INTERNATIONAL CRIMINAL TRIBUNAL

1. Prosecutor v Seselj, (Appeals Judgement) [2018], MICT-16-99-A, [‘Seselj’]

IRAQI HIGH TRIBUNAL

1. Judgment of the Dujail Trial at the Iraqi High Tribunal, (Trial Judgment), [2006], 1/E First/2005,
[‘IHT’]
SPECIAL COURT FOR SIERRA LEONE

1. Prosecution v. Brima et al., (Appeal Judgment) [2008], SCSL-2004-16-A, [‘Brima’]

UN DOCUMENTS

1. UN, ‘Global hunger numbers rose to as many as 828 million in 2021’, Report
<https://www.who.int/news/item/06-07-2022-un-report--global-hunger-numbers-rose-to-as-
many-as-828-million-in-2021>
2. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [‘Charter’]
3. UNGA, Uniting for peace, 3 November 1950, A/RES/377, [‘Uniting for peace’]
4. UN Res 71/248 (21 December 2016) UN Doc A/RES/71/248, [‘Res 71/248’]
5. The Secretary-General, Note verbale dated 8 February 2017 from the Permanent Mission of the
Russian Federation to the UN addressed to the Secretary General, UN Doc. A/71/793, 14 February
2017, [‘Note verbale’]
INTERNATIONAL TREATIES

1. UN GA, International Covenant on Economic, Social and Cultural Rights, 1966, United Nations,
[‘ICESCR’]
PUBLICATIONS

BOOKS

1. Triffterer and Ambos, ‘The Rome Statute of the International Criminal Court: A Commentary’
(C.H. Beck, Hart, Nomos, 2016), 3rd ed., 2378, [‘Triffterer’]
2. Schabas, ‘The International Criminal Court: A Commentary on the Rome Statute’ (Oxford
University Press, Oxford, 2010), 2d edn., [‘Schabas’]
3. Gerhard and Florian, ‘Principles of International Criminal Law’, Oxford University Press, 2020,
[‘Gerhard and Florian’]
ARTICLES
1. Zimmermann, ‘Palestine and the International Criminal Court Quo Vadis?: Reach and Limits of
Declarations under Article 12(3)’ (Journal of International Criminal Justice, 2013) Vol. 11,
[‘Zimmetmann’]

9
2. Nakashidze, ‘Uniting for Justice: Group Referrals to the International Criminal Court’,
OpinioJuris, 25 March 2022 <https://opiniojuris.org/2022/03/25/uniting-for-justice-group-
referrals-to-the-international-criminal-court/>, [‘Nakashidze’]
3. Weinstein, ‘Prosecuting attacks that destroy the environment: environmental crimes or
humanitarian atrocities’, Georgetown International Environmental Law Review, 17(4), 2005, pp.
697-722, [‘Weinstein’]
4. Nugent et. al, ‘Research on the pathophysiology, treatment, and prevention of suicide: practical
and ethical issues’, BMC Psychiatry, 2019, [‘Nugent’]
5. Sours et al., ‘Sudden death associated with very low calorie weight reduction regimens’, The
American Journal of Clinical Nutrition, 34(4), 1981, pp. 453-461, [‘Sours’]
6. Mehanna et. al., ‘Refeeding syndrome – awareness, prevention and management’, Head & Neck
Oncology, 2009, [‘Mehanna’]
7. Roxin, ‘Täterschaft und Tatherrschaft’ (Berlin, New York, Walter de Gruyter 2000), [‘Roxin’]
8. Stahn, ‘A Critical Introduction to International Criminal Law’, Cambridge University Press,
2018, [‘Stahn’]
9. Whiting, ‘An Investigation Mechanism for Syria’, Journal of International Criminal Justice, 2017,
15(2), pp. 231-237, [‘Whiting’]
OTHERS

1. Tomuschat et. al., ‘Guatemala. Memory of silence’, Report of the Commission for Historical
Clarification, Conclusions and Recommendations, 1999.
2. ICC Pre-Trial Chamber III authorises the Prosecutor to launch an investigation in Côte d’Ivoire
(October 2011), ICC-CPI-20111003-PR730 <https://www.icc-cpi.int/news/icc-pre-trial-
chamber-iii-authorises-prosecutor-launch-investigation-cote-divoire>, [‘Côte d’Ivoire
Investigation’]
3. Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of
Referrals from 39 States Parties and the Opening of an Investigation (March 2022), <
https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-
receipt-referrals-39-states >, [‘Statement of ICC Prosecutor on Ukraine’]

4. Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination
of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction
(December 2019), < https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-
conclusion-preliminary-examination-situation-palestine > [‘Statement of the Prosecutor on
Palestine’]

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 STATEMENT OF FACTS

I. Background

This case involves two States: the State of Giskar (“Giskar”), a developing State whose economy is
based on mineral extraction, logging, fishing, and farming; and the Republic of Regale (“Regale”),
an industrialized State whose largest industry is biotechnology research and production.

The territory where the alleged international criminal acts occurred - the Golden Lowlands, was a
region of Giskar during the period of alleged crimes.

Neither State is a party to the Statute.

II. The Defendant

Mr. Corlis Valeron (“Valeron”) is a national of Regale, who since 2012 has served as the CEO of
Karaxis Corp (“Karaxis”). This biotechnology corporation is owned and controlled by Regale and it
has been developing pest-resistant seeds/crops. Karaxis has also secretly been developing designer
insects that are pesticide resistant but vulnerable to the plant toxins of its engineered seeds/crops. The
corporation had not shared this biotechnology with farmers in Giskar before May 2021.

The Defendant is charged with the commission of crimes against humanity in the territory of Giskar
concerning his role in the conception and implementation of OBA.

III. “Operation Bug Attack”

According to the Defendant’s plan of OBA, from March 2019 to September 2020, employees of
Karaxis conducted repeated aerial releases of bio-engineered bugs on the Giskar side of the Cascading
River. The OBA had two main goals: first, to suppress farm output in the fertile Golden Lowlands
and second, to induce the people of the Golden Lowlands to vote to secede from Giskar and join
Regale, which had the technology to protect their farms from the insect scourge.

As a result, 65% of crops in the Golden Lowlands’ fields were destroyed, demolishing state’s the
agro-based economy. Domestic food prices quadrupled, leading to 20,000 people in the region dying
of starvation and 5,000 farmers have committed suicide. Furthermore, on a plebiscite held on 15
November 2020, the population of the Golden Lowlands overwhelmingly voted for secession from
Giskar and entered into a Merger Agreement, joining Regale on 15 May 2021.

IV. The UN’s International Investigative Mechanism

On 7 April 2022 as a response to committed crimes, Giskar requested the UN General Assembly
Resolution under the Uniting for Peace authority to create the investigative mechanism.

11
On 9 April 2022, the UN General Assembly established the IIM to Assist in the Investigation and
Prosecution of Persons Responsible for International Crimes Committed in Giskar by the Resolution.

On 20 April 2022, the IIM issued its first Report where it outlined the situation in Giskar, details of
the OBA, and its consequences, as well as IIM’s conclusions and recommendations.

V. Resolution “On the recognition of the jurisdiction of the International Criminal Court by
Giskar”

On 10 April 2022, Giskar being a non-State Party to the Statute, submitted a declaration under Article
12(3) of the Statute to the ICC Registrar, accepting the Court's jurisdiction over alleged international
crimes committed on its territory, including the Golden Lowlands, since 1 March 2019.

VI. Procedural History

The next day after IMM issued its first report, 38 States Parties to the Statute requested the ICC
Prosecutor to open an investigation into crimes committed by Valeron and other nationals of Regale
in the territory of Giskar since March 2019. The Prosecutor requested confirmation of charges against
Valeron for committing international crimes.

The Pre-Trial Chamber based on submissions approved the Prosecution’s request under Article 15(4)
of the Rome Statute to open an investigation into Valeron’s involvement in international crimes that
have taken place in Giskar since 1 March 2019. During the hearing of the case, Defence Counsel filed
a motion in opposition to the confirmation of charges. The Pre-Trial Chamber ruled in favour of the
Prosecutor, confirming the charges against Valeron.

However, the Defendant, not agreeing with the decision, filed an appeal.

12
 ISSUES

-(I)-

Whether the Pre-Trial Chamber erred in holding that the State of Giskar’s acceptance of jurisdiction
concerning international crimes committed in the region of the Golden Lowlands was valid given that
the territory was no longer part of Giskar at the time it lodged its Article 12(3) declaration with the
Registrar?

- ( II ) -

Whether the Pre-Trial Chamber erred in holding that it had subject matter jurisdiction in this case
under Article 7(1)(k) of the ICC Statute?

- ( III ) -

Whether the Pre-Trial Chamber erred in holding that there was sufficient evidence to confirm charges
against Corlis Valeron based solely on the 6 April 2022 Report of the International Investigative
Commission whose legitimacy has been challenged by the UN Under-Secretary-General for Legal
Affairs?

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 SUMMARY OF ARGUMENTS

I. Giskar’s acceptance of jurisdiction concerning international crimes committed in the

Golden Lowlands was valid
1. Giskar’s acceptance of jurisdiction of the Statute concerning international crimes
committed in the region of the Golden Lowlands was valid, since the region was a part of
Giskar during the period of crime commission and Article 12(3) of the Rome Statute may
have a retroactive effect on crimes committed in the territory of the accepting country. In
addition, Giskar does not have to have complete full control over the Golden Lowlands
territory when submitting a declaration.
2. The declaration lodged under Article 12(3) complies with the principle of sovereignty and
can be extended to separate territories as the Court does not rule on territorial issues.
II. The Court has subject matter jurisdiction in this case under Article 7(1)(k) of the Rome
Statute
1. The acts of Valeron were inhumane. Said acts inflicted serious suffering, and injury to the
body, physical and mental of the civilian population. The conduct resulted in 25000 victims
and the destruction of Golden Lowlands’ agro-based economy.
2. The acts were of similar character to those enumerated in Article 7(1) of the Statute in
terms of nature and gravity and had a distinct element not reflected in Article 7(1).
3. The OBA, resulting in a large number of victims, was a widespread and systematic attack
directed against the civilian population conducted in furtherance of a State or an
organizational policy. The acts of the accused were objectively part of the attack by nature
and by consequences.
4. Valeron had the required mens rea for the underlying crime, as he was aware of OBA, its
nature, and his acts being part of the attack. As a central figure in designing OBA and CEO
of Caraxis, he possessed dolus directus of the second degree.
5. The Defendant is a co-perpetrator under Article 25(3)(a) of the Statute as he acted within
the framework of a common plan and knew that this plan included an element of
criminality. Valeron essentially contributed to this common plan by virtue of designing and
implementing OBA.
III. There is sufficient and legitimate evidence to confirm the charges against Valeron
1. The evidence provided is admissible since the criteria set in Article 69(4) of the Rome
Statute are met. The report is highly relevant, and has enough probative value being reliable
and legitimate, and not causing a prejudicial effect.
2. The evidence is sufficient and does not require corroboration, as it can solely establish
substantial grounds for the confirmation of charges against Valeron.

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 WRITTEN ARGUMENTS

I. GISKAR’S ACCEPTANCE OF JURISDICTION CONCERNING INTERNATIONAL

CRIMES COMMITTED IN THE GOLDEN LOWLANDS WAS VALID
Giskar submits that the ICC can exercise its jurisdiction in the territory of the Golden Lowlands
concerning international crimes committed by Valeron since (A) Giskar may grant the ICC
jurisdiction over a situation pre-dating its acceptance of jurisdiction under Article 12(3) of the Statute
and (B) the declaration under Article 12(3) complies with the principle of sovereignty and can be
extended to separate territories.

A. Giskar may grant the ICC jurisdiction over a situation pre-dating its
acceptance of jurisdiction under Article 12(3) of the Statute
Under Article 12(3), the State may consent to the Court’s exercise of jurisdiction by submitting a
declaration to the Registrar.1 In the present case, Giskar submits that (a) the Article 12(3) declaration
may have a retroactive effect on crimes committed in the territory of the country that accepts the
jurisdiction of the ICC, (b) the Golden Lowlands were a part of Giskar during the period of the
commission of alleged crimes and (c) Giskar does not have to have complete control over the Golden
Lowlands territory when submitting a declaration.

a) The Article 12(3) declaration may have a retroactive effect on crimes

committed on the territory of the country that accepts the jurisdiction of the
ICC
States have a certain discretion in specifying a starting date or a specific period since when or during
which the Court will have jurisdiction over alleged crimes. 2 Generally, the ICC may exercise its
jurisdiction over crimes perpetrated after the Statute has entered into force for a particular State. 3
However, Article 12(3) declarations may have both a prospective and retroactive application. 4

Cote d’Ivoire5, Ukraine6 and Palestine7 have used Article 12(3) declarations for triggering the Court’s
jurisdiction, in some cases - retroactively. For instance, based on Ukraine’s declarations, 8 the ICC

1
Rome Statute of the International Criminal Court (entered into force on 1 July 2002), ISBN No 92-9227-227-6, Article
12, para. 3 [‘Statute’]
2
Prosecutor v. Laurent Koudou Gbagbo (Decision on the Corrigendum of the challenge to the jurisdiction of the ICC on
the basis of articles of the Statute) [2012], ICC-02/11-01/11, para. 59; O. Triffterer and K. Ambos, The Rome Statute of
the International Criminal Court: A Commentary (C.H. Beck, Hart, Nomos, 2016), 3rd ed., 2378, p. 686 [‘Triffterer’]
3
Statute, Art. 11(2)
4
Ibid.; Triffterer, p. 686; A. Zimmermann, ‘Palestine and the International Criminal Court Quo Vadis’: Reach and Limits
of Declarations under Article 12(3)’ (Journal of International Criminal Justice, 2013) Vol. 11, p. 311
5
Republic of Côte d’Ivoire, Declaration dated 18 April 2003, ICC-02/11-01/11-129-Anx16
6
The Office of the Prosecutor, Report on Preliminary Examination Activities (2015), para. 76-79 [‘OTP Report’]
7
Situation in Palestine (Decision on the Prosecution request in Palestine) [2021], ICC-01/18, para. 1 [‘Situation in
Palestine’]
8
OTP Report (2016), para. 149
15
opened an investigation into alleged crimes committed on its territory, covering within its scope any
past (since 21 November 2014) or present allegations of international crimes.9

Equivalently, after Côte d’Ivoire submitted the declaration, ICC granted the Prosecutor’s request to
open an investigation in the situation in the state.10 And in 2019 the Prosecutor also established a
reasonable basis to proceed with an investigation into the situation in Palestine. 11

Similarly, using the discretion regarding the time frame and requesting to investigate the crimes
predating the declaration, Giskar filed a declaration. This action was in line with the ICC practice in
Ukraine, Cote d’Ivoire and Palestine whose Article 12(3) declarations also addressed crimes
committed before their adoption.

b) The Golden Lowlands were a part of Giskar during the period of the
commission of alleged crimes
Since Article 12(3) declarations may be retroactive, 12 the Court may consider the situation when the
Golden Lowlands were part of Giskar. 13 According to the principle of la compétence de la
compétence, “judicial body […] retains the power and the duty to determine the boundaries of its
jurisdiction”.14 In this way, the ICC is equally empowered to determine the limits of its jurisdiction 15
“in the absence of any agreement to the contrary”.16

For example, despite the disputed status of the Palestinian territory, Palestinian Authority empowered
the ICC to exercise jurisdiction over “acts committed on the territory of Palestine since 1 July
2002”.17 In the situation of Ukraine, despite the existence of the so-called “Treaty on the Adoption
of the Republic of Crimea into Russia” between the de-facto Crimean authorities and Russia, the ICC
will be able to investigate crimes on the territory of Crimea. 18 In its annual preliminary examination

9
Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States
Parties and the Opening of an Investigation (March 2022), <https://www.icc-cpi.int/news/statement-icc-prosecutor-
karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states> [‘Statement of ICC Prosecutor on Ukraine’]
10
ICC Pre-Trial Chamber III authorises the Prosecutor to launch an investigation in Côte d’Ivoire (October 2011), ICC-
CPI-20111003-PR730 <https://www.icc-cpi.int/news/icc-pre-trial-chamber-iii-authorises-prosecutor-launch-
investigation-cote-divoire>
11
Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in
Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction (December 2019), <https://www.icc-
cpi.int/news/statement-icc-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-palestine>
12
Triffterer, p. 686
13
Competition Case, para. 12
14
Situation in Uganda (Decision on the Prosecutor’s Application) [2006], ICC-02/04-01/05, para. 22 [‘Situation in
Uganda’]
15
Ibid.
16
Ibid.; International Court of Justice, Judgment of 18 November 1953, Nottebohm case (Liechtenstein v. Guatemala),
ICJ Reports, 1953, p. 119; Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (Decision
on the Prosecution’s Request) [2018], ICC-RoC46(3)-01/18-37, para. 33
17
Situation in Palestine, para. 131
18
Statement of ICC Prosecutor on Ukraine
16
reports issued even before Russia’s 2022 invasion of Ukraine, the ICC Prosecutor analysed alleged
crimes perpetrated in occupied Crimea. 19

Even though the Parliament of Giskar adopted a Resolution on the recognition of the jurisdiction of
the ICC after the Golden Lowlands entered into a Merger Agreement, joining Regale, 20 this does not
affect the Court’s jurisdiction. Moreover, Giskar’s position was supported by the UN General
Assembly, and in a joint referral 38 States Parties to the ICC Statute requested the Prosecutor to open
an investigation.21 States Parties’ joint ICC referral confirmed that they see the Golden Lowlands’
devastation as such exceptional circumstance and consider the Lowlands to be part of Giskar’s
territory for jurisdictional purposes.

Thus, for the purposes of the Court’s jurisdiction under Article 12(3), the Golden Lowlands shall be
considered a part of Giskar at the time of the commission of alleged crimes.

c) Giskar’s full control over the Golden Lowlands territory is not required for the
Court to exercise its jurisdiction
The territorial jurisdiction of the ICC conferred upon accepting under Article 12(3) can be extended
to the separate territories where the accepting State does not currently exercise full control as
“undisputed territorial borders are not required for the Court to exercise its jurisdiction”.22

As evident from the Situation in Georgia,23 the ICC can exercise its jurisdiction over the territory of
a State-Party without its full control over it. 24 Similarly, according to Prof. Schabas, the ICC has
jurisdiction over Northern Cyprus, even though Turkey has occupied it since 1974. 25 In this way, the
Court’s territorial jurisdiction is not restricted to areas over which the state currently exercises
control.26

Conclusively, the ICC can extend its jurisdiction to the territory of the Golden Lowlands despite it
being controlled by Regal.27

19
OTP Reports (2016-2021)
20
Competition case, para. 7
21
Competition case, para. 5
22
Situation in Georgia, (Decision on the Prosecutor’s request for authorization of an investigation) [2016], ICC-01/15,
para. 6 [‘Situation in Georgia’]
23
Situation in Georgia, para. 6
24
Situation in Georgia, para. 6, 191
25
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press,
Oxford, 2010), 2d edn., 1589, p. 285 [‘Schabas’]
26
Schabas, p. 285
27
Competition Case, para. 7
17
 B. The declaration lodged under Article 12(3) complies with the principle of
sovereignty and can be extended to separate territories
The ICC, exercising its jurisdiction solely over natural persons, is not a court that has the power to
determine inter-state border disputes.28 In the Situation in Palestine, the ICC found that its territorial
jurisdiction also extends to the territories occupied by Israel29 while its decision “does not entail any
determination on the border disputes”.30

Comparably to the Palestinian example, at hand the Court is not expected to rule on territorial
disputes, yet to convict those who committed possible atrocities on this territory. Consequently,
Giskar’s declaration does not violate the territorial sovereignty of Regale.

II. THE COURT HAS SUBJECT MATTER JURISDICTION IN THIS CASE UNDER
ARTICLE 7(1)(K) OF THE ICC STATUTE
Giskar submits that the Pre-Trial Chamber did not err in holding that it had subject matter jurisdiction
in this case under Article 7(1)(k) of the Statute. There is sufficient evidence to establish substantial
grounds to believe that the perpetrator committed the crime charged, as required by Article 61(5) of
the Rome Statute.31

The Court has jurisdiction over the case of Valeron, as (A) the perpetrator inflicted great suffering,
or serious injury to the body or mental or physical health, by means of an inhumane act; (B) the acts
of the perpetrator were of a character similar to other acts referred to in Article 7(1); (C) the conduct
was committed as part of a widespread or systematic attack directed against the civilian population;
(D) Valeron is individually criminally responsible as a co-perpetrator.

A. The perpetrator inflicted great suffering, or serious injury to the body or to

mental or physical health, by means of an inhumane act
Giskar submits that the perpetrator has committed (a) an inhumane act that (b) inflicted great suffering
and (c) serious injury to mental health and (d) body and physical health of the population of GL.

a) OBA, being an act of ecocide, was an inhumane act

Giskar states, that OBA, being a crime of ecocide, was an inhumane act.

An ‘inhumane act’ is an act of serious violation of customary international law and the basic rights
pertaining to human beings, drawn from the norms of international human rights law. 32 The overall

28
Situation in Palestine, para. 59
29
OTP Report (2020), para. 220
30
Situation in Palestine, para. 60
31
Statute, Art. 61(5)
32
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, (Decision on the confirmation of charges) [2008], ICC-
01/04-01/07, para. 448 [‘Katanga-I’]
18
consequences of the act must offend humanity in such a way that they may be termed “inhumane”. 33
The conduct which led to environmental destruction could be considered a crime against humanity
because of its humanitarian consequences.34

In the present case, the overall situation in the Golden Lowlands could be considered a humanitarian
disaster, as 65% of crops were destroyed, 20000 people died of hunger, 5000 committed suicides, the
agro-based economy of the region 35 farming industry collapsed to the point that the central
government of Giskar was unable to provide support,36 and domestic food prices quadrupled. 37

Hence, an act that has led to consequences of such magnitude is inhumane.

b) Valeron has inflicted great suffering upon the population of the Golden
Lowlands
Giskar states that the perpetrator has inflicted great suffering upon the people of the Golden
Lowlands.

The definition of suffering can be drawn from the war crime of wilfully causing great suffering under
Article 8(2)(iii).38 The term ‘great’ is defined as “much above average in size, amount or intensity”.39

In the present case, the destruction of crops in the Golden Lowlands has caused food shortages of
more than 65% which led to widespread hunger, resulting in over 25 thousand people dead 40 and
evidently, even more people suffering from the condition inflicted.

Therefore, the perpetrator has inflicted great suffering upon the people of the Golden Lowlands.

c) Valeron has inflicted serious injury to mental health

Damage to mental health can be defined as severe damage to the mental integrity of a person. 41 Such
harm includes “more than minor or temporary impairment of mental faculties such as the infliction
of strong fear or terror, intimidation or threat”.42

In view of Giskar, the suicide of victims shall be viewed as “more than minor impairment of mental
faculties” and not as random occurrences. Economic desperation is recognized as a frequent cause of

33
Prosecutor v. Kupreskic et al. (Trial Judgment) [2000], IT-95-16-T, para 622 [‘Kupreskic’]
34
Weinstein, ‘Prosecuting attacks that destroy the environment: environmental crimes or humanitarian atrocities’,
Georgetown International Environmental Law Review, Volume 17, Issue 4, 2005, pp. 697-722, p. 720
35
Competition case, paras. 7
36
Competition case, Annex III, para. 6-7
37
Competition case, para. 7; Annex III, para. 6
38
Triffterer, p. 240
39
Prosecution v. Mucić et al. ("Čelebići"), (Trial Judgment) [1998], IT-96-21-T, para. 510 [‘Čelebići’]
40
Competition case, para. 7
41
Prosecution v. Duško Tadić, (Trial Judgment) [1997], IT-94-1-T, para. 729, [‘Tadic’]
42
Prosecutor v. Athanase Seromba, (Appeal Judgment) [2008], ICTR-2001-66-A, para. 46
19
suicide.43 Moreover, strict austerity measures along with rising unemployment contribute to an
increase in suicide rates. 44

Giskar submits that the people of Golden Lowlands have suffered a serious injury to mental integrity,
as 5000 farmers have committed suicide. 45 If one is to assess the situation of economic desperation
and the absence of food, it can be established, that the suicide of the victims has a clear nexus with
the conduct committed by Valeron and are not just a random occurrence, as farmers have suffered
the greater damage, because of the agricultural nature of the region. 46

Hence, Giskar states that the perpetrator has caused serious injury to mental health of the civilian
population of Golden Lowlands.

d) Valeron has inflicted great injury to the body and to physical health

Giskar states, that the perpetrator has caused serious injury to the body and to physical health.

When ascertaining the meaning of the term ‘great’, the ad hoc tribunals looked to the plain ordinary
meaning of the word47 as “not slight or negligible”.48

The existence of injury to body and health of the person must be established on a case-by-case basis
and is defined by these elements: the victim must have suffered serious bodily or mental harm; the
injury was a result of an act by the perpetrator or his subordinates; the offenders were motivated to
cause the injury.49 Additionally, while there is no requirement for the harm caused to be permanent
or irremediable, it must result in grave and long-term disadvantages to a person’s ability to lead a
normal and constructive life50 and involve harm that goes beyond temporary unhappiness,
embarrassment, or humiliation. 51

The reversible and irreversible harm of involuntary ecocide-induced hunger can be described as a
grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.
Starvation may lead to irreversible harm to one’s body or even sudden death, while in a controlled

43
Nugent et. al, Research on the pathophysiology, treatment, and prevention of suicide: practical and ethical issues,
BMC Psychiatry, 2019, p.3 [‘Nugent’]
44
Ibid.
45
Competition case, para. 7
46
Ibid.
47
Čelebići, para. 510
48
Ibid.
49
Prosecution v. Kordić & Čerkez, (Trial Judgment) [2001], IT-95-14/2-T, para. 271
50
Prosecution v. Krstić, (Trial Judgment) [2001], IT-98-33-T, para. 513; Prosecutor v. Akayesu, (Trial Judgement) [1998]
ICTR-96-4-T para. 502
51
Krstić, para. 513
20
environment of dieting.52 Furthermore, even if hunger does not cause immediate harm per se, in the
ordinary course of events victims require prolonged medical treatment. 53

As to the severity of harm, in the present case, OBA has caused irreversible harm as the destruction
of nature has caused a myriad of different social and economic consequences, specifically hunger,
that lead to starvation and the eventual death of victims.54 The Defence might argue that the goal of
OBA was to induce the population of the Golden Lowlands to secede from Giskar, 55 yet the
Prosecution argues its main objective was to significantly suppress farm output in Golden Lowlands 56
making the induction of hunger by ecocide one of the main goals of the operation.

Hence, Giskar states that the perpetrator has caused serious injury to the body and to physical health
of the civilian population of Golden Lowlands.

B. Such act was of a character similar to any other acts referred to in Article 7(1)
of the Statute
To be held accountable for the crime of other inhumane acts, the act of the perpetrator must be of a
similar character to any other acts referred to in Article 7(1) of the Rome Statute. 57 The similarity in
character refers to the similarity in (a) nature or (b) gravity.58

Holding the defendant liable for ecocide does not violate the nullum crimen sine lege principle, as
‘other inhumane acts’ were accepted as a residual category of crimes against humanity under
customary international law. 59 There is no requirement for ecocide to be recognised as a specific
category of crimes against humanity or even as a specific kind of underlying conduct falling within
the category of other inhumane acts.60

Giskar argues that ecocide is not identical but is nonetheless ‘similar’ in terms of nature and gravity,
to crimes enumerated in Art. 7(1)(a)-(j).

a) Such act was of a similar nature to any other acts referred to in Article 7(1) of
the Statute
The Chamber can confirm charges under Article 7(1)(k) if the perpetrator inflicts great suffering, or
serious injury, by that are not identical, but ‘similar’ to crimes enumerated in Article 7(1). 61 It should

52
Sours et al., ‘Sudden death associated with very low calorie weight reduction regimens’, (The American Journal of
Clinical Nutrition), Vol. 34, Issue 4, 1981, pp. 453-461, p. 456
53
Mehanna et. al., ‘Refeeding syndrome – awareness, prevention and management’, Head & Neck Oncology, 2009, p.2
54
Competition case, para. 7
55
Ibid.
56
Competition case, Annex III, para 6
57
EoC, 7(1)(k)(2)
58
Ibid.
59
Prosecutor v. Nuon Chea and Khieu Samphan, (Trial Judgment) [2007], 002/19-09-2007, para. 723. [‘Nuon’]
60
Nuon, para. 741
61
Prosecution v. Dominic Ongwen (Trial Judgment) [2021], ICC-02/04-01/15, para. 2741 [‘Ongwen’]
21
have at least one materially distinct element that is not reflected in other acts under paragraph 1. 62

The destruction of crops in some circumstances can constitute a crime of extermination as such
destruction can be aimed at inflicting conditions of life calculated to bring about the destruction of
part of a population. 63 Nonetheless, ecocide is similar to the crime of extermination in form of
deprivation of access to food. At the same time, it has a distinct element, which is not reflected in
paragraph 1, namely the consequences of the act, which additionally disrupt the livelihood of the
population. Ecocide covers not only the death of the population but also the suffering from ecological
destruction.

Using the logic accepted in the SCSL,64 ecocide cannot be seen exclusively or primarily as a crime
of extermination, as people have suffered not only the harm of deprivation of food but also a
constellation of other human rights violations, in addition to the consequences of the conduct: 65
deprivation of one’s means of subsistence, 66 the right to continuous improvement of one’s life, 67 and
the right of everyone to the enjoyment of the highest attainable standard of physical and mental
health.68

Prosecution states, that ecocide not only gravely violates the right to food but also the right to the
improvement of living conditions and development. While the bugs have destroyed the crops of the
Golden Lowlands, additional harm was done due to the inability of the region to sustain itself
economically. The prices in Giskar went up dramatically because of food shortages, unemployment,
and the collapse of the agriculturally based economy, 69 making the population unable to sustain their
living conditions.

Thus, Giskar states that ecocide is similar in terms of nature to the crime of extermination while
having a distinct element, making it a distinct type of conduct under Article 7(1)(k).

b) Such act was of a similar gravity to any other acts referred to in Article 7(1) of
the Statute
The gravity of the conduct is assessed on a case-by-case basis.70 The personal circumstances of the

62
Triffterer, p. 237
63
Statute, Art. 7(2)(b); Triffterer, p. 510; Tomuschat et. al., Report of the Commission for Historical Clarification,
Conclusions and Recommendations, ‘Guatemala. Memory of silence’, 1999, paras. 116, 118.
64
Prosecution v. Brima et al. (Appeal Judgment) [2008], SCSL-2004-16-A, paras. 190-193, 199-200.
65
Competition case, para. 7
66
UNGA, International Covenant on Economic, Social and Cultural Rights, 1966, United Nations, Art. 1(2) [‘ICESCR’]
67
ICESCR Art. 11(2)
68
ICESCR Art. 12(1)
69
Competition case, para. 7
70
Prosecutor v. Bagilishema, (Trial Judgment) [2001], ICTR-95-1A-T, para. 92
22
victim, as well as the impact of the act upon the victim, must be accounted for. 71

The acts at hand resulted in 25000 victims dead 72 and even more suffering from hunger. Giskar argues
that unprovoked and ill-intended conduct that has led to the death and suffering of the civilian
population by destroying the main means of survival 73 of that population had a massive negative
impact on every side of their day-to-day life.

Thus, Giskar submits that ecocide is similar in terms of gravity to those crimes enumerated in
Article 7(1)(a)-(j).

C. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population
Giskar submits, that (a) OBA was an attack directed against the civilian population; (b) the attack
was carried out pursuant to organizational policy; (c) the attack was widespread and systematic; (d)
there was a nexus between the actions of the perpetrator and the attack.

a) There are substantial grounds to believe that OBA was an attack directed
against the civilian population
According to Article 7(2)(a) of the Rome Statute, an “attack directed against any civilian population”
means a course of conduct involving the multiple commission of acts referred to in paragraph 1. 74 As
it has been established in the ad hoc tribunals, an attack may also be non-violent in nature by exerting
pressure on the population to act in a particular manner. 75 Moreover, the civilian population must
constitute the primary target76 and not just an incidental victim of the attack. 77 Additionally, there is
no requirement for civilians to be the sole target of the crimes.78

In the present case, Karaxis personnel conducted repeated aerial releases of bio-engineered bugs,79
making the OBA a repeated course of conduct referred to in Article 7(1)(k).

The main objective of the attack was to significantly suppress farm output in the fertile Golden
Lowlands and to induce the people of the region to vote to secede from Giskar, 80 making the civilian

71
Nuon, para 438.
72
Competition case, para. 7
73
Ibid.
74
Statute, 7(2)(a).
75
Prosecutor v. Alfred Musema (Judgement and Sentence) [2000], ICTR-96-13-T, para. 205; Prosecutor v. Rutaganda,
(Judgement and Sentence) [1999], ICTR-96-3-T para. 70
76
Prosecutor v. Jadranko Prlić, (Trial Judgment) [2013], IT-04-74-T, para. 36 [‘Prlic’]
77
Prosecutor v. Bemba (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the
Prosecutor Against Jean-Pierre Bemba Gombo) [2009], ICC-01/05-01/08-424 para. 76 [‘Bemba-I’]
78
Prosecutor v Mrksic & Sljivancanin, (Appeals Judgment) [2009], IT-95-13/1-A, para. 28
79
Competition case, para. 7
80
Ibid.
23
population not the sole, but the main target of attack. The death and suffering of the population were
consequently inevitable. 81

Therefore, there are substantial grounds to believe that the OBA was an attack directed against the
civilian population.

b) The attack was committed in furtherance of an organisational and a state

policy
The attack, within the meaning of Article 7(2)(a) of the Statute, requires active conduct from the
entity behind the policy without necessarily amounting to extensive or repeated activity, but
sufficiently triggering and directing the attack. 82 An attack that is ‘planned, directed, organised’, as
opposed to ‘spontaneous or isolated acts’, satisfies the policy requirement. 83 Importantly,
‘organizational’ refers not only to State or quasi-State entities, but also to “a private entity consisting
of a group of persons pursuing the objective of attacking a civilian population”.84

In the present case, Karaxis, being a state company, 85 had resources available to them to plan, direct
and organise the attack. Moreover, the OBA was not a spontaneous act, but a meticulously thought-
through operation.86

Therefore, the attack was committed in furtherance of a state policy or an organisational policy.

c) There are substantial grounds to believe, that the attack was widespread and
systematic
The attack is considered ‘widespread’ if it is conducted on a large scale and a high number of victims
is caused.87 It also encompasses an attack carried out over a large geographical area or an attack in a
small geographical area but directed against a large number of civilians. 88 The ‘systematic’ nature of
the attack refers to the existence of a political objective, a plan pursuant to which the attack is
perpetrated, or the repeated and continuous commission of inhumane acts linked to one another, or
the usage of significant public or private resources. 89 The overall atmosphere of fear or intimidation

81
Ibid.
82
Triffterer p. 246
83
Prosecutor v. Ruto et al., (Decision on the Confirmation of Charges Pursuant to Art. 61(7)(a) and (b) of the Rome
Statute) [2012], ICC-01/09-01/11, para. 219 [‘Ruto’]
84
Prosecutor v. Katanga, (Trial Judgment) [2014], ICC-01/04-01/07, para. 1119 [‘Katanga-II’]
85
Competition case, para. 3
86
Competition case, para. 7
87
Prlic, para. 41
88
Katanga-II, para. 395; Prosecutor v. Tihomir Blaškić (Trial Judgment) [2000], IT-95-14-T, para. 206 [‘Blaskic’]
89
Blaskic, para 203
24
can show an existence of a widespread and systematic attack directed against the civilian population. 90

In the present case, the OBA was conducted on the whole territory of the Golden Lowlands 91 and was
directed at a large number of victims, as the Golden Lowlands is an agricultural region 92 making the
scale of the attack geographically and numerically widespread.

Regarding the systematic nature of the attack, the facts of the case point to the existence of a plan. 93
The release of the bugs was committed multiple times, from March 2019 to September 2020. 94
Significant private and public resources were used, as Karaxis is a state company with rather large
resources moneywise. 95 Moreover, Giskar argues that it is virtually impossible for a state company
to organize an attack on the neighbouring country and to achieve some if any political goals of
receiving a part of the neighbouring country with no support from the state officials.

Hence, there are substantial grounds to believe that the attack was widespread and systematic.

d) There is a nexus between the acts of the perpetrator and the attack

The acts of the perpetrator need to be objectively part of the ‘attack’ against the civilian population
by their nature or consequence, 96 and must not be isolated but must form part of the attack. 97 The
actions may be committed not at the same time and place as the attack or share not all of the features
of the attack.98

The actions of the perpetrator were condition sine qua non for the implementation of OBA, as the
operation itself was the idea of the perpetrator,99 making his actions objectively a part of the attack,
by nature and consequences.

Thus, there is a nexus between the acts of the perpetrator and the attack.

D. Valeron is individually criminally responsible under Article 25(3)(a) as a co-

perpetrator for the crime under Article 7(1)(k) of the Statute.
There are two elements, that need to be satisfied under Articles 7(1)(k), 30 and 25(3)(a) of the Rome
Statute to be found guilty. Here, the Defendant fulfilled (a) the subjective elements of the crime
charged as he (a.1) had knowledge of the attack and that his acts were part of it, and (a.2) intentionally
caused objective elements of the crime; (b) the objective elements of the co-perpetrating (b.1) acting

90
Prosecutor v Seselj, (Appeals Judgement) [2018], MICT-16-99-A, para. 70
91
Competition case, para. 7
92
Competition case, para. 1
93
Competition case, para. 7
94
Ibid.
95
Ibid.
96
Prosecutor v. Naletilić and Martinović, (Trial Judgement) [2003], IT-98-34-T, para. 234
97
Prosecutor v. Krnojelac, (Trial Judgement) [2002], IT-97-25-T, para. 55
98
Prosecutor v. Semanza, (Trial Judgement) [2003], ICTR-97-20-T, para. 326
99
Competition case, para. 7
25
within the framework of a common plan and (b.2) essentially contributing to the implementation of
this plan.

a) The perpetrator fulfilled the subjective elements of the crime

a.1) The perpetrator had knowledge of the attack and knew that his acts were part of it

Under Article 7(l)(k)(3) of the Elements of Crimes100, the “perpetrator must [be] aware of the factual
circumstances that established the character of the act.” 101 Moreover, the perpetrator must act with
knowledge of the broader context of the attack, being aware that his acts formed part of the
widespread or systematic attack against the civilian population, 102 and the consequence that would
occur in the ordinary course of events. 103 However, proof of knowledge of the precise details of the
plan or policy of the State or organization is not required.104 Acts committed before the attack against
the civilian population may also be considered part of the attack. 105

For example, in Awwad al Bandar’s case, the Iraqi High Tribunal pointed out that the perpetrator’s
“knowledge cannot be known except through external manifestations and evidence”, 106 while in
Sadam Hussein’s case, it inferred knowledge from the statements of the accused before the
Tribunal.107 In addition, knowledge may be shown by the defendant’s position, functions, 108
professional qualification, experience, and express approval of conduct. 109

In the case at hand, the Defence Counsel admitted, that “the alleged facts indicate an attack against
crops, not humans”, which shows the Defendant’s knowledge of the existence of the attack itself. 110
Additionally, Valeron’s high-ranking position within Karaxis, and his approval of OBA also confirm
his knowledge. There is no reasonable possibility that he could not have known about the genuine
purposes of OBA and how dangerous the consequence of the attack can be, as a central figure in the
conception and implementation of the plan.

Hence, Valeron had knowledge of the attack and knew that his acts were part of it.

100
EoC, 7(l)(k)(3)
101
The Prosecutor v. Germain Katanga (Decision on the confirmation of charges) [2008], ICC-01/04-01/07-717, para.
455
102
The Prosecutor v. Ndindiliyimana et al. (Appeal Judgment) [2014], ICTR-00-56, para. 260
103
Bemba-I, para. 87
104
Bemba-I, para. 88
105
The Prosecutor v. Bosco Ntaganda (Judgment), [2019], ICC-01/04-02/06, para. 696 [‘Ntaganda’]
106
Judgment of the Dujail Trial at the Iraqi High Tribunal (Judgment), [2006] 1/E First/2005, p. 63, [‘IHT’]
107
IHT, p. 125
108
Prosecutor v. Naletilić and Martinović, (Judgment) [2003], IT-98-34-T, para. 242; Prosecutor v. Blaškić, (Judgment)
[2000], IT-95-14-T, para. 258.
109
Prosecutor v. Nizeyimana (Judgement and Sentence) [2012], ICTR-2000-55C-T, para. 1558.
110
Competition case, para. b.
26
 a.2) The perpetrator intentionally caused objective elements of the crime

Under Article 7(1)(k) of the Rome Statute, the infliction of great suffering or serious injury must be
‘intentional’,111 so the perpetrator must possess a dolus directus form of culpability.112 Under dolus
directus of the second degree, the suspect, without having the specific intent to bring about the
objective elements of the crime (the undesired consequence 113), is aware that such elements will be
the necessary outcome of his actions114 However, absolute certainty about a future occurrence can
never exist, therefore, the standard for the foreseeability of events is a virtual certainty. 115

Valeron as the CEO of the Karaxis116 must have known about the main features and dangerous
abilities of the designed insects. Likewise, the Defendant could have predicted with his professional
skills and knowledge, that attack on crops by genetically modified insects will lead to their destruction
since the Karaxis did not share patents on its pest-resistant seeds/crops with farmers in Giskar.117
Consequently, Valeron should have been aware that the agriculture-based economy of Golden
Lowlands would collapse causing great suffering for the civil population of the affected region in the
ordinary course of events.118

According to Report, the objectives of OBA were twofold: to significantly suppress farm output in
the Golden Lowlands and to induce the people of the Golden Lowlands to vote to secede from Giskar
and join Regale.119 Conforming to this, the Defendant could have foreseen such grave consequences
as famine and serious casualties resulting from the suppression of agricultural production. Thus,
Valeron was aware that such objective elements will be the necessary outcome of his actions.

Accordingly, Valeron had the requisite mens rea under Articles 7(1)(k) and 30 of the Statute.

b) The accused fulfilled objective elements of the co-perpetrating

b.1) Existence of a common plan or agreement

Сo-perpetration under Article 25(3)(a) of the Rome Statute requires the existence of an agreement or
common plan between the co-perpetrators.120 Given that the common plan can be directed at the

111
Gerhard and Florian ‘Principles of International Criminal Law’(Oxford University Press 2020), p. 544, [‘Gerhard and
Florian’]
112
Bemba-I, para. 135
113
Bemba-I, para. 359
114
Ibid., para. 359; Prosecutor v Lubanga Dyilo, (Decision on the confirmation of charges) [2007], ICC No 01/04-01/06-
803-tEN, para. 352
115
Prosecutor v. Lubanga Dyilo, (Judgement on the Appeal of Mr. Thomas Lubanga Dyilo against his conviction, Appeal
Chamber) [2014], ICC-01/04-01/06-3121-Red, para. 447
116
Competition case, para. 3
117
Ibid.
118
Competition case, Appendix III, para. 7
119
Competition Case, para. 7
120
The Prosecutor v. Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) [2012], ICC-01/04-01/06-
2842, para. 981 [‘Lubanga-III’]
27
achievement of a non-criminal goal121 there is no requirement to prove that the plan was specifically
directed at committing a crime. 122 However, the plan “must include ‘an element of criminality’.123 It
is sufficient that the co-perpetrators are aware of the risk that implementing the common plan will
result in the commission of the crime, and accept such an outcome. 124 The plan can be inferred from
circumstantial evidence.125

First, OBA itself is a conduct that is merely impossible to implement without planning it in advance.
Second, existing of the common plan which stood behind OBA can be inferred from surrounding
circumstances such as cooperation amongst workers within the Karaxis, large territories covered by
OBA, and the considerable amount of resources and funds of the company involved. Third, Report
verifies that there had been a plan before OBA started, specifically designed and made by Valeron. 126
Consequently, Valeron as a leader of the Caraxis Corp. and potential author of the plan regarded as
OBA could not help but act within its framework.

Taking into consideration that Valeron was aware that such objective elements will be the necessary
outcome of his actions (i.e. creation and implementation of OBA) in the ordinary course of events, it
satisfies ‘an element of criminality’.

Therefore, Valeron has acted within the framework of a common plan.

b.2) Valeron’s individual contribution was essential

To demonstrate an ‘essential’ 127 contribution, the prosecution does not need to prove that the input of
the Defendant, taken alone, caused the crime. 128 Those who commit a crime jointly include those who
assist in formulating the relevant strategy or plan. 129 This essential contribution does not need to be
made at the execution stage of the crime. 130 Thus, a direct or physical link between the perpetrator’s
contribution and the commission of the crimes should not be established. 131 The crime may have been
possible to commit without the defendant’s contribution.132 This captures perpetrators who control or
mastermind crimes and do not personally perform any of the acts required by the offence. 133 For
example, in Al-Bashir, the defendant’s essential contribution was described as “coordinating the

121
Lubanga-III, para. 982
122
Lubanga-III, para. 984
123
Lubanga-III, para. 982
124
Ibid.
125
Lubanga-III, para. 988
126
Competition case, Appendix III, para. 5
127
Lubanga-III, para. 989
128
Lubanga-III, para. 994
129
Lubanga-III, para. 1004
130
Gerhard and Florian, p. 385
131
Lubanga-III, para. 1004
132
Roxin, ‘Täterschaft und Tatherrschaft’ (Berlin, New York, Walter de Gruyter 2000), p. 280, 282-285
133
Stahn, A Critical Introduction to International Criminal Law (Cambridge University Press, 2018), p. 136
28
design and implementing the common criminal plan”.134 The Trial Chamber in Lubanga and Appeal
Chamber in Ntaganda assessed the perpetrator’s levels of contribution in light of the position they
occupied during the relevant period. 135

Being the CEO of Karaxis, he had an instrumental role in planning and making the general strategy
of OBA. Without his approval of the OBA’s implementation, the criminal consequences were not
likely to happen. Accordingly, the Defendant as a central figure in the planning (also confirmed by
Report136), coordinating (as a leader of the company), and implementation of the OBA made an
essential contribution to making objective elements of the crime charged happen. Thus, Valeron’s
individual contribution was essential.

Hence, Valeron is individually criminally responsible under Article 25(3)(a) as a co-perpetrator for
the crime under Article 7(1)(k) of the Statute.

III. THERE IS SUFFICIENT AND LEGITIMATE EVIDENCE TO CONFIRM THE

CHARGES AGAINST VALERON
Giskar claims that the evidence disclosed establishes substantial grounds to confirm charges against
Valeron. According to Article 61(5)(7) of the Statute during the confirmation of charges at the Pre-
Trial stage, there must be sufficient evidence presented by the Prosecution to establish “substantial
grounds to confirm that the person committed each of the crimes charged”. 137

Reports from international organisations are considered to be indirect evidence. 138 When such kind
of evidence, ICC follows the two-step approach: 1) estimating relevance, the probative value of the
evidence and potential prejudice its admission may cause; 139 2) verifying whether there is
corroborative evidence.140

In the present case, Giskar submits that the evidence provided establishes substantial grounds to
confirm charges against Valeron since (A) the IIM Report is highly relevant and has enough probative
value and (B) absence of corroborative evidence does not reduce Report’s probative value.

134
The Prosecutor v. Al Bashir, (Decision on the Issuance of a Warrant of Arrest) [2009], ICC-02/05-01/09-3, para. 221
135
Lubanga-III, para. 1140; Ntaganda, para. 829
136
Competition case, Appendix III, para. 5
137
Statute, Art. 61(5)(7)
138
Prosecutor v. Ruto et al., (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Statute)
[2012], ICC-01/09-01/11-373, para. 69 [‘Ruto’]
139
Prosecutor v. Bemba, (Decision on the admission into evidence of items deferred in the Chamber's "Decision on the
Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Statute") [2013],
ICC-01/05-01/08-2299, para. 9 [‘Bemba-II’]
140
Ruto, para. 75
29
 A. IIM Report is admissible according to the Rules of the ICC

The Court may rule on the relevance or admissibility of any evidence, taking into account, inter
alia, the probative value of the evidence and any prejudice that such evidence may cause.141

According to Article 69(3) of the Statute 142, the parties may submit evidence relevant to the case.
Relevant evidence has to relate to the matters which will be considered by the Chamber in its
investigation of the charges against the accused and its consideration of the views and concerns of
participating victims. 143 In particular, that means that the evidence is relevant if it tends to make the
existence of a fact at issue more or less probable. 144 Evidence, which is not contemporaneous to the
events that happened, can be relevant to the extent of the damage caused. 145

The IIM Report describes the realization of the OBA and its consequences. In particular, it refers to
the role of Valeron and his command position in conducting the OBA operation and his ability to
prevent and repress the commission of crimes. In addition, the document may reveal other potential
criminals who provided Valeron with instruments for the operation. Moreover, the Report describes
in detail the number of victims and the effect the OBA had on the economy of Giskar, which is
especially relevant for the Court to assess the harm and damage caused by Valeron and his
Corporation.

Therefore, IIM Report is highly relevant to the issue of the case and, consequently may help to detect
the facts during the proceedings. In this aspect, the Prosecution submits, that the Report is relevant,
a) of high probative value and b) does not cause any prejudice.

a) The Report is of high probative value

The probative value of the evidence is determined on a case-by-case basis.146 Generally, its
assessment is based on its relevance, the source of origin, direct or indirect nature, credibility,
reliability, trustworthiness, and genuineness.147 When assessing the probative value of the Reports

141
Statute, Art. 69(4)
142
Statute, Art. 69(3)
143
Prosecutor v. Thomas Lubanga Dyilo, (Decision on the admissibility of four documents) [2008], ICC-01/04-01/06,
para. 27
144
Prosecutor v. Katanga and Ngudjolo, (Decision on the Bar Table Motion of the Defence of Germain Katanga) [2011],
ICC-01/04-01/07-3184, para. 16 [‘Katanga-III’]; Prosecutor v. Bemba, (Public redacted version of the First decision on
the prosecution and defence requests for the admission of evidence) [2011], ICC-01/05-01/08-2012-Red, para. 14;
Triffterer, p. 1736
145
Prosecutor v. Al Hassan, (Prosecution’s second request for the admission of documentary evidence from the bar table)
[2021], ICC-01/12-01/18, para. 12 [‘Al Hassan’]
146
Prosecutor v. Bosco Ntaganda, (Decision on Admissibility of Evidence and Other Procedural Matters) [2014], ICC-
01/04-02/06-308, para 27; Triffterer, p. 1528, para. 106
147
Triffterer, p. 1528, para. 106
30
established by the UN bodies the Court takes into account their authenticity and reliability. 148 Finally,
the official documents that are publicly available from official sources are self-authenticated.149

With regard to the reliability of evidence, it is evaluated by considering the source of information, the
contemporaneousness, whether the evidence was created for a specific purpose, and whether the
information and the way in which it was gathered can be independently verified or tested. 150 Besides,
reports of the UN agencies are considered to be prima facie reliable.151

As to the source of origin of the Report, Giskar submits that according to Article 1 of the UN Charter,
the purposes of the UN are maintaining international peace and security and achieving international
cooperation in solving international problems. 152 When there is a lack unanimity among the
permanent members of the Security Council, which leads to the inability of the Security Council to
make decisions to maintain international peace and security, the General Assembly shall consider the
matter immediately with a view to making appropriate recommendations to the UN members for
collective measures.153

Similarly to IIM, an analogous Mechanism was established by the UN General Assembly for the
Syrian Arab Republic, which had the power to prepare files in order to facilitate and expedite fair and
independent criminal proceedings and call for voluntary cooperation from all States, parties to the
conflict and civil society. 154 Even though the establishment of the Mechanism was challenged by
Russia, claiming that “the General Assembly acted ultra vires going beyond its powers as specified”
in the UN Charter, 155 when establishing investigative mechanisms the General Assembly proclaimed
that it was acting within its mandate, as it is was with such powers according to Articles 10 and 22 of
the UN Charter.156

At hand, the IIM Report was prepared in the ordinary course of the activities of the UN as there have
already been prepared similar reports by different investigative mechanisms. Moreover, the
IIM Report had a specific purpose, in particular, to display the crimes and their consequences
committed in the State of Giskar. In addition, it contains other indicia of reliability such as the logo
of the United Nationas, letterhead, and date of publication.

148
Bemba-II, para. 13; Al Hassan, para. 14
149
Prosecutor v. Germain Katanga, (Decision on the Prosecutor's Bar Table Motions) [2010], ICC-01/04-01/07, para. 24
[Katanga-IV]; Al Hassan, para. 15
150
Katanga-IV, para. 27
151
Katanga-IV, para. 29
152
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [‘Charter’]
153
UNGA, Uniting for peace, 3 November 1950, A/RES/377, p. 10
154
UN Res 71/248 (21 December 2016) UN Doc A/RES/71/248.
155
The Secretary-General, Note verbale dated 8 February 2017 from the Permanent Mission of the Russian Federation to
the United Nations addressed to the Secretary General, UN Doc. A/71/793, 14 February 2017
156
Whiting A, ‘An Investigation Mechanism for Syria’ (Journal of International Criminal Justice, 2017), p. 234
<https://doi.org/10.1093/jicj/mqx008>
31
On 5 April 2022, Giskar requested the UN Security Council to take steps to establish the investigative
mechanism, but due to the veto of one of the Permanent Members, the mechanism was not created.
As Giskar had the right to use the mechanism of the Uniting for Peace Resolution, it requested the
UN General Assembly to establish the mechanism.

The IIM for the State of Giskar was established for similar purposes as the Mechanisms for Syria,
which was also established by the General Assembly. The latter is considered legitimate and it
performs the same functions as preparing case files, drafting indictments and requiring state
cooperation. Moreover, according to Articles 10 and 22 of the UN Charter, the General Assembly has
the power to establish organs with such authorities.

Therefore, the IIM was created legitimately and has the authority to create criminal cases, draft
indictments and require State cooperation.

b) Admission of the Report does not cause any prejudice

Enough amount of relevancy and probative value of the evidence outweighs any potential prejudice
that its admission may cause. 157 There are several specific forms of prejudice that may impact the
Court’s decision on admissibility such as violation of the rights to be tried without undue delay or to
examine adverse witnesses.158 Although the defence has the right to examine witnesses, according to
Article 61(5) of the Statute, the Prosecution may rely on documentary or summary evidence and the
witnesses are not required to testify at the trial. 159 Most of the evidence submitted by the Prosecution
at the confirmation of charges stage is documentary in nature.160 Lastly, enough amount of relevancy
and probative value of the evidence outweighs any potential prejudice that its admission may cause. 161

As to the right to examine witnesses, the Prosecution is not obliged to call the witnesses expected to
testify at the trial at the confirmation of charges stage. At hand, admission of the IIM Report into
evidence does not violate the rights of the accused, as the evidence is highly relevant and probative,
which reduces any prejudice which may arise.

Therefore, IIM Report is admissible as it is highly relevant, probative, and is not prejudicial to the
rights of the accused.

157
Bemba-II, para. 13
158
Katanga-IV, paras. 40-64
159
Statute, Art.61(5)
160
Triffterer, p. 1522
161
Bemba-II, para. 13
32
 B. Absence of corroboration does not diminish Report’s probative value

There is no legal requirement for corroboration in order to prove any crime within the jurisdiction of
the ICC under Article 63(3) of the Rules. 162 In the Pre-Trial stage, corroboration is required when
evidence is based on anonymous witness statements and summaries. 163 An evidentiary weight which
depends on the amount and quality of other available evidence on the same issue is assessed at the
end of a trial, when the Chamber has heard all other evidence admitted in the case. 164

Moreover, the amount of the disclosed evidence is not important for the Court, rather its probative
value is essential for the decision on the confirmation of charges. 165 The extent to which a piece of
evidence, standing alone, is sufficient to prove a fact at issue is entirely dependent on the issue in
question and the strength of the evidence.166

In the case at hand, the IIM Report is not based on anonymous statements of witnesses which exempts
this evidence from the obligation to be corroborated. The current stage of proceedings does not
generally require evidence to be corroborated and the evidentiary value of the evidence will be
assessed further on the Trial. Moreover, the IIM Report is highly relevant and has probative value, so
it has enough strength to prove the fact of crimes committed by Valeron.

Therefore, no corroboration is needed as the IIM Report has enough value and can solely establish
substantial grounds for the confirmation of charges against Valeron.

162
Prosecutor v. Germain Katanga, (Judgment pursuant to article 74 of the Statute) [2014], ICC-01/04-01/07, para. 110
163
Ruto, para. 78; Prosecutor v. Bahr Idriss Abu Garda, (Decision on the Confirmation of Charges) [2010], ICC-02/05-
02/09, para. 52
164
Katanga-IV, para. 13
165
Bemba-V, para. 60
166
Prosecutor v. Bemba, (Judgment pursuant to Article 74 of the Statute) [2016], ICC-01/05-01/08, para. 245
33
 SUBMISSIONS

Hence, in light of the questions presented, arguments advanced, and authorities cited, the Counsel for
the State of Giskar respectfully requests the Appeals Chamber to reverse the impugned decision of
the Pre-Trial Chamber and to adjudge and declare that:

I. The State of Giskar’s acceptance of the jurisdiction concerning international crimes

committed in the region of the Golden Lowlands is valid and the Court can exercise
jurisdiction in the territory of Golden Lowlands.
II. The Court has subject matter jurisdiction in this case under Article 7(1)(k) of the Rome
Statute.
III. The IIM Report is sufficient to confirm charges against Corlis Valeron.
Respectfully submitted,

Counsel for the State of Giskar

34