NUREMBERG MOOT COURT COMPETITION

Defence Counsel
Team Number N-24
Year: 2016
Total Word Count: 5497
 TABLE OF CONTENTS

INTRODUCTION 3

PROCEDURAL MATTERS 4
I. JURISDICTION 4
II. ADMISSIBILITY 6
III. THE SCOPE OF THE JURISDICTION 6

MATERIAL ELEMENTS OF CRIMES AND MODES OF LIABILITY 7

IV. MATERIAL PREREQUISITES OF WAR CRIMES AND CRIMES AGAINST
HUMANITY 7
V. SPECIFIC ELEMENTS OF A WAR CRIME PROVIDED BY ARTICLE
8(2)(B)(XXVI) 8
VI. SPECIFIC ELEMENTS OF A RAPE AS A WAR CRIME AND A CRIME
AGAINST HUMANITY 11
VII. CRIMINAL RESPONSIBILITY AS A MILITARY COMMANDER UNDER
ARTICLE 28(A) ICCST 12

THE UNLAWFULLNESS OF THE ARREST WARRANT 14

CONCLUSIONS 14

2
INTRODUCTION
1. Pursuant to Article 61(7) of the Rome Statute1, the PTC shall “determine whether there is sufficient
evidence to establish substantial grounds to believe that the person committed each of the crimes
charged”. The Defence Counsel (“Defence”) respectfully submits that this evidentiary standard is
not met in this case.
2. The Defence considers that the case against Mr Sandheaver: (i) does not fall within the jurisdiction
of the ICC and (ii) is inadmissible. If the PTC determined the opposite, the Defence indicates that
both (iii) the material prerequisites of war crimes and crimes against humanity and (iv) the specific
elements of the crimes set down in the arrest warrant have not been satisfied in this case. Moreover,
the facts of the case suggest that (v) the elements constituting modes of liability have not been met.
The Defence also maintains that (v) the arrest warrant issued was unlawful.
3. The position adopted by the Defence is based on the following submissions:
a. Due to the fact that Irkania and Astor are not the State Parties of the Rome Statute, the ICC
shall exercise its jurisdiction only on condition that at least one of these countries lodged the
effective declaration under Article 12(3) ICCSt. In this case Astor did not used this mechanism
and the declaration lodged by Irkania has not been effective;
b. Even if the PTC came to the conclusion that the case falls within its jurisdiction, it must
consequently determine that a case is inadmissible, due to Irkania’s priority to investigate and
prosecute the case (vide Article 17(1)(a) ICCSt);
c. In the event that the Court determined that the case is admissible, the material prerequisites of
war crimes and crimes against humanity have not been met in this case, because Astor was
acting in necessary, imminent and proportional national-defence that is natural law granted for
all the countries;
d. However, if the PTC considered that the contextual elements have been satisfied, the specific
elements of the crimes set below have not been met:
i. The recruitment of the children under the age of fifteen as soldiers since as the crime
committed on the territory of Astor, it falls outside the scope of the territorial
jurisdiction of the ICCSt;
ii. The use of children under the age of fifteen as soldiers on the basis of Article 33(1)
ICCSt; and

1
2187 UNTS 90/37 ILM 1002 (1998)/[2002] ATS 15.
3
 iii. The crimes of rape and sexual violence have not been committed since the women
gave their legally relevant consent;
e. According to the modes of liability, the Defence underlines that Mr Sandheaver shall not be
found criminally responsible as a military commander for the crimes committed by the 18th
Brigade since he discharged all the duties imposed by Article 28(a) ICCSt and there is no nexus
between his omission and the crimes committed required under this provision.
f. Additionally, the Defence indicates that the warrant arrest against Mr Sandheaver was unlawful
because Mr Sandheaver had diplomatic immunity that has not been waived which is a breach of
Article 98 ICCSt.

PROCEDURAL MATTERS
I. Jurisdiction
4. The ICC jurisdiction is based on a system of “automatic jurisdiction”, which means that a state
which ratified or acceded to the Statute becomes automatically subject to the Court’s jurisdiction if
the crime set out in Article 5 was committed either on the territory of the State Party (territoriality)
or by a national of s State Party (active personality)2. From that perspective, the mechanism
provided by Article 12(3) – the declaration lodged to the Registrar by a Non-State Party – is an
exception broadening the ICC jurisdiction and as exceptiones non sunt extendendae, it shall be
interpreted restrictively. Consequently, the ICC may exercise its jurisdiction only on condition that
the State (acting pursuant to either territoriality or active personality principle) submitted an
effective declaration.
5. In February 2014, the government of Irkania decided to lodge a declaration in accordance 12(3)
ICCSt although in January 2014 it signed a peace agreement that inter alia granted amnesty to the
perpetrators who committed atrocities during the conflict between Irkania and Astor. The Defence
states that the amnesty granted in the agreement from January is a formal bar for the ICC’s
jurisdiction and thus, Irkania’s declaration shall have no further implications.
6. As far as amnesty granted in paragraph 5 of the peace agreement signed between Astor and Irkania
is concerned, it should be emphasized that unlike the SCSL Statute3, the ICC remains silent on this
matter. Therefore, according to Article 21(3) of the Statute, the Court shall apply applicable treaties

2
Mohamed M. El Zeidy, Ad hoc declarations of acceptance of jurisdiction: the Palestinian situation under scrutiny in Stahn
(ed.), The Law and Practice of the International Criminal Court (1st ed., 2015).
3
2178 UNTS 138, 145; 97 AJIL 295; UN Doc. S/2002/246, appendix II.
4
 and the principles and rules of international law, including the established principles of the
international armed conflict.
7. Article 6(5) of the Additional Protocol (II) to the Geneva Conventions states that “at the end of
hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to
persons who have participated in the armed conflict, or those deprived of their liberty for reasons
related to the armed conflict, whether they are interned or detained”4. This language clearly
indicates that, contrary to the position of some scholars and authorities, e.g. William Schabas5,
broadly understood amnesty mechanisms implement the general directive set out in the IHL. As
examples of the countries that effectively granted amnesties for the perpetrators of atrocity crimes,
it may be mentioned Chile (where such amnesty was applied after the Franco-Algerian War in
1962) or India and Bangladesh (that agreed in 1971 not to pursue charges of genocide against
Pakistan troops accused of killing about one million East Pakistanis). The importance of general
amnesties increases, as can be seen most recently in the Minsk agreement (2015) concerning the
Ukrainian conflict that was advocated by United Nations Security Council6. Thus, it would be
incoherent with the norms and tendencies in the IHL to sustain that despite the absence of the
statutory provisions, the ICC is not bound by the amnesty.
8. It is worth mentioning that the alternative interpretations lead to the different conclusions, but the
same results. Namely, if the peace-agreement as bilateral was found binding for Irkania and Astor,
but not the ICC, Irkania would be legally incapable to lodge the declaration under Article 12(3)
ICCSt. Paragraph 5 of the peace-agreement if interpreted in accordance with Article 31(1) of the
Vienna Convention on the law of treaties7, prohibits both Irkania and Astor from initiating any
investigation concerning the crimes committed during the conflict, both on national and
international level. Since the ICC jurisdiction in such a case is not automatic, but depends on the
effective act of the Non-State Party, the declarations lodged by Irkania was per se a breach of the
peace agreement and therefore unlawful. Since unlawful conducts of the Non-State Party shall not
have procedural consequences before the ICC, the declaration lodged in February 2014 could not
been ineffective.

4
UN doc. 1125 UNTS 609.
5
William Schabas, No Peace without Justice?, The Amnesty Quandary, Unimaginable Atrocities: Justice, Politics and
Rights at the War Crimes Tribunals, OUP 2012.
6
UN doc. S/RES/2202 (2015), Security Council Resolution.
7
United Nations, Treaty Series, vol. 1155, p. 331.
5
 II. Admissibility
9. As a precaution, in the event of the PTC challenging the consequences of the amnesty granted in
the peace agreement, the Defence submits that the PTC shall determine the case against Mr
Sandheaver as inadmissible by way of complementarity (Article 17 ICCSt). Irkania has priority to
investigate and prosecute the crimes committed on its territory and the ICC may exercise its
jurisdiction on condition that Irkania is unwilling or unable genuinely to investigate or prosecute
the alleged offender. After Mr Sandheaver was arrested in Fianar (Olmaea), Irkania requested his
extradition. According to the Black’s Law Dictionary warrant of extradition is “an order to
surrender a person who is accused or convicted of a crime to the jurisdiction where the crime was
originally committed”8. Such definition suggests that the request for an extradition is in itself
a decisive factor for the evaluation of the State’s willingness to prosecute. It is therefore sufficient
to conclude that the case should be determined inadmissible.

III. The scope of the jurisdiction

10. If the PTC held that the case against Mr Sandheaver is admissible, the Defence notes that the
jurisdiction of the ICC is limited. As specifically evaluated below, the territorial jurisdiction covers
exclusively the offences committed on the territory of Irkania, since the ICC is incapable of
exercising jurisdiction towards any acts on the territory of Astor. Temporarily, in accordance with
Article 24 (1) ICCSt no person shall be criminally responsible for conduct prior to the entry into
force of the Statute. Considering that the declaration under Article 12(3) has effects pro futuro (the
Statute does not prejudge its retroactive character), the jurisdiction covers only the offences
committed after February 2014. This statement is not challenged by Article 11(2) ICCSt that
provides “the Court may exercise its jurisdiction only with respect to crimes committed after the
entry into force of this Statute for that State, unless that State has made a declaration under article
12(3)”. This provision only stresses that the Statute cannot come into force on the basis of ad hoc
declaration, but exceptionally may be applied with respect to the particular crimes. Thus, in line
with the spirit of the Statute and rudimentary principle nullum crimen sine lege praevia, the
Defence concludes that the ICC jurisdiction covers solely the acts committed after February 2014
which implicates that the alleged offences fall outside the scope of the jurisdiction.

8
thelawdictionary.com [access: 09.06.2016]
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MATERIAL ELEMENTS OF CRIMES AND MODES OF LIABILITY

IV. Material prerequisites of war crimes and crimes against humanity

11. In the event the PTC nonetheless found the case against Mr Sandheaver admissible, the Defence
submits that the material prerequisites are not satisfied since Astor was acting in necessary,
imminent and proportional national-defence.
12. In accordance with Grotius the right to self-defence is a natural law and may be exercised by
everyone whose right is in danger9. The UN Charter states a right to self-defence in Article 5110.
Under the UN Charter the self-defence of the State is justifiable if the violation of this State’s rights
is imminent and concerns its sovereignty11. All the countries, including UN non-members “have
a right to defend, with lethal force, their existence as organic entities, so states have the right to
defend with military force their existence as sovereign entities”12. What is more, the self-defence is
also allowable when the attack is predictable and the actions taken up by a state are supposed to be
proportionate to it13. As widely recognized in literature, national self-defence is similar to the
personal self-defence and the elements of these institution are the following: necessity, imminence,
and proportionality14. On the basis of the Caroline incident, the doctrine asserts that “the use of
force by one nation against another is permissible as a self-defence action only if force is both
necessary and proportionate”15.
13. In the case Astor decided to conduct the attacks in order to reconquer the occupied zones what
suggests that its territorial integrity was interrupted by Irkanian troops. The Defence highlights that
“distinguishing a strictly bounded territory from an external world fixes the territorial scope of

9
David Rodin, War and self-defence, Published to Oxford Scholarship Online: January 2005, p. 110.
10
The Charter of the United Nations, article 51 Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has
taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this
right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in
order to maintain or restore international peace and security.
11
The Charter of the United Nations, article 2(4) Aggression is the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the
United Nations.
12
David Rodin, War and self-defence, Published to Oxford Scholarship Online: January 2005, p. 110.
13
John Yoo, Point of Attack: Preventive War, International Law, and Global Welfare, Published to Oxford Scholarship
Online: April 2014, p. 84.
14
Ibid.
15
M.A. Rogoff, E. Collins Jr, The Caroline Incident and the Development of International Law, 16 Brooklyn Journal of
International Law 493(1990), p. 498.
 sovereignty”16. Therefore, the vital condition of the self-defence is satisfied since Irkania
unlawfully and directly attacked Astor’s sovereignty. A premise of necessity has a different
meaning in international law than in domestic law, namely the state may conduct the war until its
complete victory to ensure that its territorial integrity will not be interrupted again17. Therefore, the
scope of self-defence extended temporarily at least to December 2012 when Irkania decided to
withdraw their military units from the occupied zones.
14. The government of Astor decided to make all the possible military efforts to defend its sovereignty.
Although at first sight, the attacks conducted by Astor against civilian population seem to be an
excess, it is necessary to underline that: (i) civilian institutions were not the only targets (the plan of
attacks covered also military aims); (ii) the attacks against military troops were insufficient to force
Irkania to withdraw its units; (iii) the Irkanian occupation lasted despite an arms and ammunition
embargo imposed against both States by the SC. If even the UN measures are not respected, the
more radical solutions should be legitimated and determined proportionate. Therefore, the premises
of the national self-defence are satisfied.
15. Taking into account the significant similarities between personal and national self-defence, the
Defence holds that the fulfilment of the established conditions should almost automatically exclude
criminal responsibility for the alleged acts considering that in the majority of legal systems
lawfulness is in issue in self-defence18. In the event the PTC did not share this argument, the
Defence underlines that the conviction that the offences are legitimated by the national self-defence
and therefore they are not unlawful, must have consequences for the fulfilment of mens rea
requirements. The deep ignorance of the illegality of acts, justified by this conviction, is a classic
example of a mistake of law. In accordance with Article 32(2) ICCSt such a mistake may be
a ground for excluding criminal responsibility if it negates the mental element required by such
a crime. At least partially, this provision excludes the possibility of the commission of the alleged
crimes due to the lack of subjective elements.
V. Specific elements of a war crime provided by Article 8(2)(b)(xxvi)
16. As a precaution, the Defence intends to demonstrate that also on the level of substantive law, it is
impossible to impose criminal liability on Mr Sandheaver. Therefore, the Defence addresses the

16
John Agnew, Sovereignty Regimes: Territoriality and State Authority in Contemporary World Politic, 95 Annals of the
Association of American Geographers, (2005), p. 437; Austen L. Parrish, Changing Territoriality, Fading Sovereignty, and
the Development of Indigenous Group Rights, American Indian Law Review Vol. 31 (2007), p. 294.
17
David Rodin, War and self-defence, Published to Oxford Scholarship Online: January 2005 p. 112.
18
Compare e.g. Appellate Division, S v. De Oliveira, 1993(2) SACR 59 (A) 63i-64b; The Supreme Court of Appeal of
South Africa, Director of Public Prosecutions, Gauteng v Pistorius, Judgment, (96/2015) [2015] ZASCA 204, 3 December
2015, p. 29.
8
 specific elements of particular crimes set out in the arrest warrant, starting with the war crime
provided by Article 8(2)(b)(xxvi) ICCSt.
17. This provision covers conscripting or enlisting children under the age of fifteen years into the
national armed forces and using them to participate actively in hostilities. The Statute itself
differentiates between “conscripting or enlisting” children under the age of fifteen years, which are
two forms of recruitment19, and “using” them as distinct war crimes constituted by different set of
material elements20. The interpretative directive nullum crimen sine lege certa implicates that it is
necessary to clearly separate these two crimes. This argument is supported by the word “or”
emphasizing the alternative between them.
18. Returning for a moment to the problem of jurisdiction, the Defence highlights that the jurisdiction
based on the territoriality principle is not unlimited. It shall not extend to the atrocities committed
on the territory of the country that is not a Party to the Statute or has not accepted the ICC
jurisdiction (vide Article 12(2) ICCSt). It implicates that in this case the crimes committed on the
territory of Astor are in abstracto situated outside the scope of the charges that potentially could be
confirmed by the PTC.
19. The statement of facts leaves little doubt that children under the age of fifteen were used during the
attacks in Irkania, but as Astorian special unit recruited and trained on the territory of Astor. The
permanent nature of the crime of enlisting and conscripting does not influence the distinction
between recruitment of children and using them to participate actively in hostilities. The alternative
introduced by the wording “or” accepts, of course, the possibility of multiplying these basis of
criminal liability, but only when the alleged perpetrator first recruited (enlisted or conscripted) the
children and then used them during hostilities. The fulfilment of the material elements of the war
crime of using children under the age of 15 to participate actively in hostilities cannot in any case
prejudge that the crime of conscripting and enlistment has been committed. Therefore, criminal
liability for recruiting the children under the age of fifteen years into the national armed forces is
excluded due to the lack of ICC jurisdiction.
20. Simultaneously, the Defence holds that the criminal liability for the war crime of using children
under the age of fifteen years to participate actively in hostilities is also not possible, for the
following reasons: (i) the absence of personal nexus to that crimes and (ii) the fulfilment of the
conditions set out in Article 33(1) ICCSt.

19
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-803, Decision on the confirmation of charges, 29. January 2007, para. 246.
20
Ibid, para. 248 and footnote 321.
9
21. It is a core principle of criminal law that nobody shall be criminally liable in the lack of some form
of personal nexus21. This personal nexus shall not be anticipated. In this case, the language of the
letter of facts differs in respect of distinct atrocities. Addressing recruitment, it is stated that
“General Sandheaver was appointed for the implementation of the measures envisaged, inter alia
for the recruitment process” and that “lacking volunteers for the unit, he decided to recruit children
under the age of fifteen as ordinary soldiers”. In the event of the war crime of using children to
participate in hostilities, the letter of facts uses the passive voice and does not suggest that Mr
Sandheaver was personally linked to this crime, e.g. that he was present during the attacks or gave
any commands. With the requisite degree of certainty, it is not sufficient to establish substantial
grounds to believe that Mr Sandheaver committed the crime in any of the modes of liability
provided by Article 25(3) ICCSt.
22. In accordance with Article 33(1) ICCST “the fact that a crime within the jurisdiction of the Court
has been committed by a person pursuant to an order of a Government or of a superior, whether
military or civilian, shall not relieve that person of criminal responsibility unless: (i) the person was
under a legal obligation to obey orders of the Government or the superior in question; (ii) the
person did not know that the order was unlawful, and (iii) the order was not manifestly unlawful”,
subject to paragraph 2 (“for the purposes of this article, orders to commit genocide or crimes
against humanity are manifestly unlawful”). The Defence holds that on the basis of this provision
criminal liability of Mr Sandheaver for the war crime of using children under the age of fifteen
years to actively participate in hostilities shall be excluded.
23. Although it was Mr Sandheaver’s decision to recruit children under the age of fifteen as ordinary
soldiers, it was simultaneously the execution of the order given by the army high command of
Astor rooted in the state’s policy. In this context, it should be emphasized that the government of
Astor demanded all the possible military efforts to be taken in order to reconquer the occupied
zones and the army high command decided to establish a special unit with the purpose to attack
critical military and civil institutions. These measures may themselves raise questions concerning
the risk of excessing national self-defence which could lead to the commission of the war crimes.
Mr Sandheaver was appointed for the implementation of these hazardous measures. As a general,
he remained under the authority of the army high command. The decision to recruit children
resulted from the absence of volunteers. It was, therefore, the only way of discharging the legal

21
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute, 21. March 2016, para.
211.
10
 obligation imposed on Mr Sandheaver. If the only possible way to execute the order is in particular
circumstances unlawful, the whole order should be considered as unlawful.
24. The fact that the use of children under the age of fifteen as soldiers is not a crime under the national
law of Astor inhibited the recognition of the unlawful character of the order. Bearing in mind that
the legal system is built on the postulate “every man is presumed to know the law”22, the Defence is
of the view that this particular circumstances justify the exception from the rule ignorantia legis
non excusat. If a State is the party of the Statute, it automatically becomes the part of this country’s
domestic system. Astor is a non-party State and the jurisdiction in this case was initiated on the ad
hoc basis. Therefore, there can be no presumption of the knowledge of ICCSt norms. The letter of
facts gives no information concerning the treaties the party of which is Astor. Thus, on the
international law level, nothing shall suggest that Mr Sandheaver should have known that the use of
children under the age of fifteen as soldiers is a war crime. Moreover, it is necessary to admit that
under the Statute only orders to commit democide and crimes against humanity are manifestly
unlawful (Article 33(2) ICCSt). The Statute accepts then the possibility that the mistake of law
reflects in discharging of criminal liability for the war crime. The Defence holds that this is an
example of Mr Sandheaver case.
VI. Specific elements of a rape as a war crime and a crime against humanity
25. According to the arrest warrant, Mr Sandheaver is seen criminally responsible for the rape as a war
crime and crime against humanity under Article 28(a), that is as military commander. The Defence
declines such charges for the reasons set out below. The Defence questions the ICC statement held
in the Bemba case that “the victim’s lack of consent is not a legal element of the crime of rape
under the Statute”23. The forms of impact on the victim’s will set out in the Elements of Crimes
(Article 7(1)(g) and Article 8(2)(b)(xxii)-1), namely force, threat of force, coercion, etc. do not
exist independently. These factors suggest that the will of the victim has been overcome or that
victim’s submission to the act has been non-voluntary24. Such observation justifies the thesis that
the victim’s free and genuine consent to sexual penetration mandatorily excludes the commission of
any crime against sexual freedom25. Otherwise, the PTC would deny the Ulpian rule – volenti non
fit iniuria. Since the middle of the 20th century, in the context of the crimes against sexual freedom
dominates the concept of sexual freedom as a individual good. This implicates that a sane person in

22
Annemieke van Verseveld, Mistake of Law. Excusing Perpetrators of International Crimes (1st ed., 2012), p. 1.
23
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute, 21. March 2016, para.
104.
24
ICTY, Prosecutor v. Kunarac et al., IT-94-23-1-T, Judgement, 22. February 2001, para. 457.
25
Ibid., para. 453.
11
 adequate age can freely dispose of this good and consent any sexual acts. Only after negating the
free and genuine consent, a sexual act may be considered unlawful. Therefore, the Defence upholds
its argument that since all the sexual acts charged were consented by the women in Irkania, they
were voluntary and did not constitute any crime.
26. Additionally, in accordance with the letter of facts the sexual acts were perpetrated in order to
terrorize and humiliate the inhabitants of Irkania. Regardless of the despicable character of such
acts, they do not fulfill the material requirements of the crime of rape. The causal link should be
exactly reverse. It is not the sexual acts that shall cause significant humiliation, but the humiliating
acts shall be conducted with the purpose to overcome the victims’ will or force their consent (on the
subjective level) and as a consequence shall lead to the sexual penetration (on the objective level).
Such causal nexus cannot be concluded in this case which strengthens the position that the material
elements of rape as a war crime and crime against humanity have not been satisfied.
VII. Criminal responsibility as a military commander under Article 28(a) ICCSt
27. The responsibility under Article 28(a) depends on the fulfillment of six conditions, namely: (i)
crimes within the jurisdiction of the Court must have been committed by forces; (ii) the accused
must have been either a military commander or a person effectively acting as a military
commander; (iii) the accused must have had effective command and control, or effective authority
and control, over the forces that committed the crimes; (iv) the accused either knew or, owing to the
circumstances at the time, should have known that the forces were committing or about to commit
such crimes; (v) the accused must have failed to take all necessary and reasonable measures within
his power to prevent or repress the commission of such crimes or to submit the matter to the
competent authorities for investigation and prosecution; and (vi) the crimes committed by the
forces must have been a result of the failure of the accused to exercise control properly over them26.
The Defence submits that the conditions (iii), (v) and (vi) have not been satisfied in this case.
28. Article 28(a)(ii) imposes three distinct duties upon commanders – preventing the commission of
crimes, repressing the commission of crime and submitting the matter to the competent authorities
for investigation and prosecution. The failure to discharge any of these duties may attract criminal
liability. “The purpose of them is, first and foremost, the prevention of crimes of subordinates that
are about to be committed, and in the second place, the punishment of subordinates who have
already committed crimes”27. Since the alleged acts were committed during a total breakdown of

26
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute, 21. March 2016, para.
170.
27
ICTY, Prosecutor v. Orić, IT-03-68-T, Trial Judgment, 30 June 2006, para. 326.
12
 communication between Mr Sandheaver and his forces on 12 November 2013 and Mr Sandheaver
was informed about them several days after the commission, undoubtedly, the obligation to prevent
has not arisen28.
29. The Defence is of the view that Mr Sandheaver discharged the other obligations, namely to repress
the commission of crime or submit the matter to the competent authorities. In the Halilović case,
the ICTR characterized the essence of this duty – “the superior does not have to be the person who
dispenses the punishment, but he must take an important step in the disciplinary process. He has
a duty to exercise all measures possible within the circumstances; lack of formal legal competence
on the part of the commander will not necessarily preclude his criminal responsibility. The duty to
punish includes at least an obligation to investigate possible crimes, to establish the facts, and if the
superior has no power to sanction, to report them to the competent authorities”29.
30. The particular circumstances delimit the scope of the obligation. Mr Sandheaver has taken an
important step by contacting the army high command promptly. He asked for permission to inform
the competent Prosecutor. These conducts indicate the genuine and decisive conduct in response to
the atrocities he has been informed about. It could be argued that Mr Sandheaver could react more
actively and inform the Prosecutor regardless of the high command’s rejection and the threat
degradation. Yet, such arguments would be unilateral. The jurisprudence highlights that disregard
or non-compliance with orders or instructions of the accused will always indicate a lack of effective
control30. The army’s high command not only rejected Mr Sandheaver’s request, but more
importantly “pointed out the positive military outcome for the army of Astor”. Such declaration
immediately reduced Mr Sandheaver’s authority understood as “power or right to give orders and
enforce obedience”31. After Mr Sandheaver’s superiors challenged his reaction to the atrocities, his
further actions could not influence his subordinates. Therefore, taking account of these factors, Mr
Sandheaver discharged his obligation.
31. Although, it is itself sufficient to exclude the criminal liability, the Defence indicates that due to the
lack of information about the recruitment and training of the 18th Brigade, it is impossible to
determine that there is sufficient evidence to establish substantial grounds to believe that the crimes
were committed as a result of the failure to exercise control properly. In this context, the
jurisprudence referred to the rules of conduct adopted in the organization in question or the

28
ICTR, Prosecutor v. Nahimana et al., ICTR-99-52-A, Appeals Judgment, 28 November 2007, para. 721.
29
ICTY, Prosecutor v. Halilović, IT-01-48-T, Trial Judgment, 16 November 2005, para. 100.
30
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute, 21. March 2016, para.
190.
31
ICC, Prosecutor v. Bemba, ICC-01/05-01/08-424, Decision on Charges, 15 June 2009, para. 413.
13
 behaviour of the accused that increased the risk of new crimes being committed32. The letter of
facts lacks such information. Therefore, in the absence of the factual grounds, the Defence submits
that the criminal liability under Article 28(a) ICCStas a military commander is not attributable in
this case.

THE UNLAWFULLNESS OF THE ARREST WARRANT

32. Mr Sandheaver was arrested during a diplomatic meeting between authorities of the Republic of
Irkania and the Republic of Astor in the capital of Olmaea which is signatory of the Rome Statute.
There is no doubt that immunities shall not bar the ICC from exercising its jurisdiction over such
a person (vide Article 27 ICCSt). However, they are a bar for the surrender (Article 98 ICCSt).
33. Extradition of Mr Sandheaver was requested by the Prosecutor of the ICC and Irkania. It should be
noted that this proposal shall not take place. Diplomatic immunity assured for Mr Sandheaver is an
obligation binding both Irkania and Olmaea. This obligation has complex basis. Irkania shall have
respected this institution due to the peace agreement signed in January 2014 which granted amnesty
for the perpetrators of both sides. Obligation for Olmaea arises directly from the Statute, since the
Court may not proceed with a request for surrender which would require the requested State to act
inconsistently with its obligations under international agreements pursuant to which the consent of
a sending State is required to surrender a person of that State to the Court, unless the Court can first
obtain the cooperation of the sending State for the giving of consent for the surrender. The
immunity of Mr Sandheaver has not been waived, therefore, the arrest should be considered
unlawful.

CONCLUSIONS
34. For all the reasons mentioned above, the Defence submits that in the absence of factual and legal
basis, the Pre Trial Chamber shall decline to confirm all the charges against Mr Sandheaver.

32
ICTY, Hadžihasanović and Kubura, IT-01-47-A, Appeal Judgment, 22 April 2008, para. 30.
14