Tentative Structure for Defendant: Corlis Valeron

Issue 1: 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?

Factual Analysis:
The time that should be considered to validate the exercise of retrospective application of ICC’s
jurisdiction should be the time of the submission of the declaration before the Registrar. At the time,
the State of Giskar submitted its declaration, Golden Lowlands was not part of its territory and hence,
it cannot submit a declaration invoking retrospective application on Golden Lowlands, but any other
territory that is within its own jurisdiction.

Law:
<Territorial Jurisdiction>
<Rule 44>
Analogy to be used to prove this - (Palestine case) - The Statute did not expressly require the
accepting entity to have been a state at the time a crime was committed. Requirement should
be satisfied at the time when the court is seized of the matter.
a. Delegation of Jurisdiction: Article 12(3) provides that a State that has not ratified the
ICC Statute can accept ICC’s jurisdiction ad hoc when it comes to crimes that
explicitly fall under its jurisdiction. Here, Golden Lowlands is no longer a part of the
State of Giskar and the state has no jurisdiction over it for it to in turn delegate its
jurisdiction to ICC - nemo plus iuris transferre potest quam ipse habet (no one
can transfer a greater right than he himself has)
b. Express consent of the relevant state is missing.
c. Jurisdictional Rule of Reason: State’s jurisdictional assertions need to be reasonable in
order to comply with international law. This encapsulates the principle of non-
intervention and the doctrine of abuse of rights. To exercise jurisdiction, the state must
establish a sufficiently close connection between the state and the activity. A real and
substantial link must be established between the state and the territory on which the
conduct in question has occurred. The effects on the State of Giskar are not
sufficiently linked with the conduct committed on Golden Lowlands to trigger the ad
hoc jurisdiction of the ICC by way of a declaration submitted before the Registrar.
 d. Right of Self-determination: State of Giskar lacks territorial sovereignty over Golden
Lowlands owing to a constitutional secession obtained by the latter. Territorial title is
missing. Article 31 of the VCLT. Regale hasn’t annexed or gained occupation by
force. After secession, only Regale can exercise territorial sovereignty over Golden
Lowlands. Factual and legal control of Golden Lowlands is with Regale.
e. Violation of the principle of non-intervention occurs from lack of territorial
sovereignty.

Structure
A. The conduct in question is not a continuing crime. Had it been one, the submission of
jurisdiction before the ICC on behalf of the State of Giskar would have been valid.
B. The effects jurisdiction will fail to apply in this case. Nothing in the facts state that the effect of
the conduct occurred in Golden Lowlands was felt in Giskar. Tangible connection between
the crime and the territory is missing. There is no direct, intended, substantial or foreseeable
qualification to establish this doctrine.
a. It also goes against pacta tertiis. An extraterritorial application of law is against the
legislative intent of the ICC’s Statute. A restrictive approach towards ICC’s
jurisdiction is essential.
b. The requisite direct and substantial effect that should have been foreseeable to an
objectively reasonable person is missing.
c. We also need to determine whether the reach of the remedies of ICC and their
enforcement will be apt as part of the effects jurisdiction which is clearly not the case
here.
d. An extension of ICC jurisdiction will increase the risks of jurisdictional conflicts with
states and the court is not ready to pay such a price for the fulfillment of its mandate to
end impunity.
C. Violation of the principle of legality - The conduct in question was not a crime when it was
committed (Article 22) and had no penal consequences therein. Hence, a crime cannot be
criminalized retrospectively. Article 21(3) - Application and interpretation of the Court’s law
must be consistent with the internationally recognized human rights. Article 28 of VCLT +
Rule 44 of the ICC.
D. Legality of plebiscite - The court is not constitutionally competent to determine matters of
plebiscite which should be resolved under PIL.
E. Article 17(1)(d) - The act is not of sufficient gravity to justify further action by the Court.
F. Validity of the declaration - Declarations should meet certain statutory requirements. The
Court should reject a declaration if it hints at the politicization of the Court. The
 contestations on the legitimacy of the plebiscite seem to have been made by the State of Giskar
through the backdoor by using ICC’s jurisdiction.

Issue 2: 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.

A. Ecocide is not a crime under Article 7(1)(k) (Violation of Nullum Crimen Sine Lege)
B. The contextual elements of Article 7(1) are not met
a. The attack was not systematic or widespread: Upon a comparison, it is seen that
merely 20,000 individuals died in only a specific geographical location. Therefore, it is
seen that the attack was not widespread. Since the effect on the population was not
directed towards them specifically, and was random, the attack may not qualify as
being systematic.
b. The attack was not directed towards a civilian population: Since, ICL
jurisprudence has held that “civilians” need to be the primary object of the attack, it is
clear that the attack was not against such people. The deaths were merely indirect in
nature.
c. The attack was not in furtherance of a state or organizational policy: Since in
Ruto’s Case a stringent test for “organizational policy” which requires the organization
to have qualities of a state, such as territorial force, primary purpose of criminal
activity, etc, the attack cannot be seen in furtherance of a state or organizational policy.
C. The specific elements of Article 7(1)(K) are not met
a. The acts in the present case is not an inhumane act not similar to the other acts
mentioned under article 7: Since the inherent nature of Crimes Against Humanity
(Articles 7(1)(a)-7(1)(g) are extremely anthropogenic, an attack not directly towards
humans cannot be similar. Further, there is precedence to show, crop burning/looting
businesses does not meet the threshold of an Inhumane act.1
b. The specific mens Rea element of Article 7(1)(k) does not exist: There is no
intention to cause the suffering required under the Article as the intention of the “so
called attack” could have been purely economical. For example, affecting the
agricultural output of another country to help their own.
D. The defendant is not individually criminally liable under 25(3)(a) & the threshold of
Indirect Perpetration through an organization is not met:

1 SITUATION IN THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR V. FRANCIS KIRIMI
MUTHAURA, UHURU MUIGAI KENYATTA AND MOHAMMED HUSSEIN ALI
 a. There was no control over the organization:
b. There was no organized and hierarchical apparatus of power
c. There was no automatic compliance by interchangeable executors: One of the
most important requirements of joint commission mode of liability under Article
25(3)(a) is that such liability is generally applied to Military contexts (for example in
militias or juntas). Due to this, this liability requires a very high threshold which is
characterized by automatic compliance by juniors through threats of violence, intense
training regimes etc.

Issue 3: 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.

A. The UNGA does not have authority to create the International Investigative
Mechanism (IIM) using the Uniting for Peace Resolution
a. The IIM is not just an investigative but also a prosecutorial organization: Since
the problem clearly mentions that the body can create criminal case files and draft
indictments and to require State cooperation, the newly formed body takes a
prosecutorial nature.
b. The IIM cannot compel state Cooperation
c. The UNGA does not have authority to create a prosecutorial organization
1. The UNGA does not have prosecutorial powers: Being a deliberative,
recommendatory body, the UNGA does not have any sort of judicial powers.
2. UNGA cannot create a body that has powers it itself does not have:
Jurists and commentators have accepted that Article 22 does not permit the
UNGA to create bodies with powers it itself does not possess. This is not
possible even with the Uniting for Peace Resolution.
3. There is no state practice in the GA of establishment of tribunals or
prosecutorial organizations: Examples of setting up of tribunals in
Cambodia or Guatemala cannot be compared, since the UNGA in those cases
passed resolutions, to help agree the consenting states to create the tribunals in
agreement with the GA. The IIMs of Syria and Myanmar may also be
different.
B. There was no sufficient evidence for confirmation of charges solely based on the IIM
report
a. The IIM Report constitutes indirect hearsay evidence: Reports by NGOs and
UN bodies have been on numerous occasions considered as indirect evidence.
Therefore:
1. The IIM report is not reliable and has low probative value: Coming from
an ex-employee, who has currently vanished, seems to raise questions about the
reliability of the source. The evidence does not appear to be voluntary, truthful
or trustworthy. There may be political motives, all factors which reduce the
reliability and probative value of the report.
2. There exists no corroborating evidence to support the IIM report:
Whatever Kole has spoken is the same as the IIM report, therefore, there is no
other corroborating evidence which may be used to supplement the IIM
Report.
b. Indirect Evidence cannot be solely used for the confirmation of charges: Many
judgements such as Bemba, Muthuara have accepted that confirmation of charges
cannot take place solely on the basis of one piece of indirect evidence.