TEAM 89

Defense

Nuremberg Moot Court

2018  

1  
  
 

Table  of  contents  

1   Inadmissibility  ..........................................................................................................................  3  
1.1   The  case  is  inadmissible  pursuant  to  arts.  17(1)(a),  17  (2)(b),  17(1)(d),  17(3),  19(2)  and  
19(4)  of  the  Rome  Statute  ...........................................................................................................  3  
1.1.1   Unwillingness,  art.  17  (2)(b)  .......................................................................................  3  
1.1.2   Inability,  art.  17(3)  ......................................................................................................  5  
1.1.3   Gravity  17(1)(d)  .........................................................................................................  5  
1.2   The  arrest  warrant  is  unlawful  ...........................................................................................  6  
1.3   The  evidence  is  inadmissible  before  the  Court  ..................................................................  6  
1.3.1   The  witness  testimony  is  hearsay  evidence  ...............................................................  6  
1.3.2   There  is  no  proof  of  existence  of  a  mono-­ethnicity  plan  .............................................  6  
1.3.3   The  facts  of  the  evidence  are  highly  unlikely  ..............................................................  7  
1.4   Material  elements  of  crime  and  modes  of  liability  ..............................................................  7  
1.4.1   The  Accused  has  not  facilitated,  aided  nor  abetted  the  crime  of  genocide  or  crimes  
against  humanity......................................................................................................................  7  
2   Count  1:  Genocide,  punishable  under  Art.s  6(c)  of  the  Rome  Statute.  .....................................  8  
2.1   The  prerequisites  of  genocide  are  not  met  and  the  evidence  does  not  prove  intent  ..........  8  
2.2   There  is  no  nationalistic  or  mono-­ethnicity  plan  targeting  a  minority..................................  8  
2.3   The  detained  have  not  been  perceived  as  members  of  the  ethnic  minority  group  .............  9  
2.4   The  conditions  at  the  detention  facilities  were  not  calculated  to  bring  about  the  physical  
destruction  of  the  ethnic  minority  group,  in  whole  or  in  part  .......................................................  10  
2.5   Mr.  Balboa  did  not  intend  to  destroy  the  ethnic  group,  in  whole  or  in  part  .......................  10  
3   Count  2:  Crimes  against  humanity,  punishable  under  Arts  7(1)(c)  of  the  Rome  Statute.  ........  11  
3.1   The  prerequisites  for  Crimes  against  humanity  are  not  met  and  the  labor  carried  out  by  
the  detainees  does  not  constitute  slavery  ..................................................................................  11  
3.1.1   Mens  rea  .................................................................................................................  12  
4   Count  3:  War  crime  punishable  under  Art.s  8(2)(b)(i),  8(2)(b)(ii))  of  the  Rome  Statute.  ..........  13  
4.1   Perpetrator-­by-­  means:  Art.  25(3)(a)  og  (b)  .....................................................................  13  
4.2   The  Defense  does  not  find  the  necessary  nexus  for  the  alleged  crime  to  fall  within  the  
jurisdiction  of  war  crimes  to  be  present......................................................................................  13  
4.2.1   The  conduct  was  not  associated  with  an  international  armed  conflict  ......................  13  
5   Relief  Sought  .........................................................................................................................  14  
 

2  
  
 

1   Inadmissibility  
The Defense hereby challenges the admissibility of the case against Mr. Balboa before the ICC,
pursuant to Art. 17 of the Rome Statute1, and considers the appertaining arrest warrant to be
unlawful. Should the PTC consider the case to be admissible, the Defense further submits that the
evidence upon which the allegations against Mr. Balboa are based, is inadmissible before the Court,
as it consists of non-corroborative hearsay evidence, which, if deemed admissible, does not prove
the required intent. In any case, the Defense submits that the prerequisites of the crimes pursuant to
Arts. 6(c), 7(1)(c), 8(2)(b)(i) and (ii) are not met. Thus, the Defense submits that the OTP has failed
in obtaining sufficient evidence to establish substantial grounds to believe that Mr. Balboa is
criminally liable for the crimes of which he is being charged with, pursuant to Art. 61(5) and (7).

1.1   The  case  is  inadmissible  pursuant  to  arts.  17(1)(a),  17  (2)(b),  17(1)(d),  
17(3),  19(2)  and  19(4)  of  the  Rome  Statute  
The Defense submits the case to be inadmissible pursuant to Art. 19(2) and 19(4) of the Rome
Statute, as there are no significant grounds to believe that Neckar has not initiated an investigation
in the sense of Art. 17(1)(a) of the Statute. The ICC is a court of last resort and as such is subject to
the principle of complementarity and must recognise the primary responsibility of States themselves
to exercise criminal jurisdiction.2 As a sovereign state, Neckar has, pursuant to the principle of
complementarity, primary jurisdiction to investigate and prosecute the alleged crimes of Mr. Balboa
as they have allegedly been committed on its territory. Only insofar as Neckar should prove
unwilling or unable genuinely to investigate or prosecute Mr. Balboa, should the case be admissible
to the ICC.

1.1.1   Unwillingness,  art.  17  (2)(b)  

There are no sufficient grounds to establish that Neckar has proven unwilling to prosecute Mr.
Balboa pursuant to Art. 17(2)(b) of the Rome Statute. The evidentiary standard is not met in this
case, as claims regarding the extent to which Neckar is unwilling or unable to prosecute Mr. Balboa
is based on assumptions rather than established fact. The statement issued on 10 July3 by the
government of Neckar can under no circumstances amount to a declaration of unwillingness to
prosecute individual crimes. A sovereign State must have the right to publicly defend itself against
such severe allegations4, without this being interpreted as a general statement of unwillingness to
investigate such allegations. The Defense further disputes that the statement should signify an
                                                                                               
1
 Hereinafter all statutory references shall be made to the Rome Statute, unless otherwise provided
2
Luis Ocampo-Moreno, Paper on some Policy Issues before the Office of the Prosecutor (2003) 2.
3
Case material para. 14.
4
Case Material para. 13 and 14.
3  
  
 

inability of the judicial branch to investigate such claims. The statement, issued by the government,
does not represent the intention or lack of activities of the judiciary. The cyber-attack took place on
11 July5, and as such the above mentioned statement cannot constitute a declaration of refusal to
prosecute Mr. Balboa for this alleged offence, as the attack was committed after the statement was
issued.
The state of Neckar has neither refused to prosecute Mr. Balboa, nor has the OTP taken steps to
ensure that an investigation into the alleged crimes of Mr. Balboa has not already been instigated by
the State. When initiating an investigation under Art. 53(1), the Prosecutor must, pursuant to Art.
54(1)(a) investigate incriminating and exonerating circumstances equally, and in doing so shall,
pursuant to Art. 54(1)(b), take appropriate measures to ensure the effective investigation.
Ascertaining whether any national authorities are conducting a genuine investigation is an
appropriate measure.6 Further than ensuring that the national authorities are not instigating an
investigation, the OTP should seek to encourage genuine national investigations and prosecutions.7
Insufficient time has been allocated, to make any such genuine effort by the OTP.
Insofar as the OTP should argue that Neckar has not taken any actions to investigate the case or
prosecute Mr. Balboa, the Defense submits that Neckar has not been granted a sufficient period of
time to instigate such proceedings. When deciding whether to initiate an investigation, the OTP
shall, pursuant to Art. 53(1) evaluate the information made available to him or her, as well as
consider whether the case is admissible. The Defense notes that the case is referred to the OTP by
Mosel after the incident at the hospital on 11 July8. As the arrest warrant is issued 15 September9,
and the case at the earliest could have been referred 11 July, no more than five weeks could have
passed between the matter being referred to the OTP and the arrest warrant being issued. Pursuant
to Art. 18(1), the OTP shall, after having carefully examined the evidence notify the State which
would normally exercise jurisdiction over the crimes concerned. Pursuant to Art. 18(2) the State
concerned, may within one month of receipt of the notification pursuant to Art. 18(1) inform the
Court that it is investigating. At the request of the state, the Prosecutor shall defer to the state
investigation.

Thus, the Defense concludes that in order for the deadline pursuant to Art. 18(2) to have passed by
15 September, when the arrest warrant is issued, the OTP must have spent no more than one week
on the task of evaluation and consideration of the information pursuant to Art. 53(1), including an
                                                                                               
5
Case material, para. 15.
6
“The Prosecution must also ascertain whether any national authorities are conducting a genuine investigation or trial
of the alleged perpetrators of the crimes” ICC Understanding the International Criminal Court, p.35.
7
Office of the Prosecutor of the International Criminal Court: Paper on Preliminary Examinations (2013), para. 101
8
Case material, para. 15.
9
Case material, para. 16
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assessment of the admissibility of the case pursuant to Art. 53(1)(b), and thus whether the case is
being investigated by the state which has jurisdiction over it pursuant to Art. 17(1)(a). Taking into
account that this is no easy task, the Defense respectfully submits that said evaluation and
consideration can hardly have been effectuated to a degree which the PTC can find satisfactorily
thorough.
Considering the above, the Defense submits that a conclusion to the effect that the State of Neckar
has been inactive, based on a lack of activity within a short period of time of no more than a week,
is invalid.
Due to the quick referral of the case by Mosel, pursuant to Art. 14, as well as the arrest warrant
being issued, pursuant to Art. 58(1), merely five weeks after the attack on the hospital took place,
any perceived inactivity by the state of Neckar to investigate or prosecute must not be interpreted as
unwillingness to do so.

1.1.2   Inability,  art.  17(3)  

The Defense reiterates that Neckar has shown no signs of inability to prosecute Mr. Balboa, nor has
the OTP established that Neckar would not genuinely carry out an investigation and prosecution of
the alleged offence. As the issued arrest warrant is unlawful10, it is irrelevant to discuss why Neckar
has not arrested Mr. Balboa pursuant of said warrant. The presumption that Neckar should be either
unwilling or unable to investigate or prosecute the allegations made against Mr. Balboa, is based on
assumptions and speculations, rather than established facts.

1.1.3   Gravity  17(1)(d)  

Should the PTC be satisfied that no investigation or prosecution is being conducted by Neckar, the
case would be inadmissible under Art. 17(1)(d) due to the lack of gravity. Gravity is determined by
the systematic or widespread nature of the relevant conduct and by the ‘social alarm’ it may cause,
especially at the international level.11 The scale of the conduct relevant to the allegations against
Mr. Balboa is not comparable to that of other situations considered by the OTP.12 Although certain
NGOs have reacted to the conditions in the detention centres, those NGOs cannot be said to
represent society at large, and there is nothing further which suggest that the existence or conditions

                                                                                               
10
As discussed in section 1.2.
11
ICC, Prosecutor v Lubanga, ICC-01/04-01/06, Decision concerning Pre-Trial Chamber I’s Decision of 10 February
2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, 24 February
2006, para. 46.
12
Office of the Prosecutor of the International Criminal Court: Paper on Preliminary Examinations (2016), paras. 216,
218. Specifically in relation to the hospital incidence, see Office of the Prosecutor’s response to communications
received concerning Iraq, 10 February 2006, where 4 to 12 victims of willful killing and a limited number of victims of
inhumane treatment “was not sufficient to instigate an investigation”.
5  
  
 

of the detention centres should have caused social alarm. Thus, the Defense submits that the gravity
of the case, pursuant to Art. 17(1)(d) is not sufficient to justify further action by the Court.

1.2   The  arrest  warrant  is  unlawful  

The Defense further submits that the OTP, by proceeding to the issuance of an arrest warrant whilst
not having been assured that the same matter is not being investigated by Neckar, acted contrary to
the spirit of the Statute and notably its underlying principle of complementarity, which requires the
OTP to encourage states to conduct investigations themselves.13 Furthermore, the Defense submits
that should the OTP be assured that Neckar is not willing or able to investigate the matter, issuing
an arrest warrant is incompatible with the level of necessity stipulated in Art. 58(1)(b), as a
summons to appear would suffice.

1.3   The  evidence  is  inadmissible  before  the  Court  

The evidence against Mr. Balboa comprises of both documentary evidence and hearsay. Given the
gravity of the allegations, the evidence should be deemed inadmissible in the interest of a fair trial.

1.3.1   The  witness  testimony  is  hearsay  evidence  

The testimony of the Mosel police officer is inadmissible. The police officer is not the primary
witness, but a secondary, as well as in the case of the reiterated hearsay, a tertiary witness and
therefore the evidence given by the police-officer must be considered hearsay evidence.
The Defense further submits that the initial statements made by the escaped detainee workers, to the
effect that the forced labor appeared to be part of a plan to eliminate the ethnic minorities of Neckar
is pure speculation with no basis in any solid fact or indisputable evidence, and asks that such
speculative statements should not be admissible as evidence in the interest of a fair trial.
Though the escaped detainee workers have claimed to be from the ethnic minority of Neckar14,
neither this claim, nor any other claims made by the escaped detainee workers have been given
under oath, pursuant to Art. 69(1) of the statute.

1.3.2   There  is  no  proof  of  existence  of  a  mono-­ethnicity  plan  
Only two of the escaped detainee workers claim to have overheard guards speak of a mono ethnicity
plan and the nationalism of Neckar, and only one of those escaped detainee workers has claimed to

                                                                                               
13
Art. 18(1)-(2) Office of the Prosecutor of the International Criminal Court:, Policy Paper on Preliminary
Examinations (2013) para. 100f.
14
Case material, para. 12.
6  
  
 

have overheard a mine guard speak of the passing of a mono-ethnicity plan, at a closed DNP
Executive Committee meeting.15
With regard to the statements that a supposed closed council meeting and the passing of a mono-
ethnicity plan should have taken place, the Defense submits that this is hearsay insofar as the
information was given as evidence to PTC by the mine guards, whom the two escaped mine
workers supposedly overheard mentioning it. The Defense thus proclaims that it must be considered
hearsay of hearsay, as the escaped detainee worker is merely claiming to have heard a guard make
such a statement. Due to the fact that this hearsay evidence is being relayed by a witness, even
further removed from the actual alleged events, the Defense requests that the PTC declare the
evidence inadmissible due to the interest of a fair trial.

1.3.3   The  facts  of  the  evidence  are  highly  unlikely  

As a precaution, the Defense submits that if the PTC should find the hearsay evidence admissible,
the above statements must further be considered very unlikely to have any basis in solid fact. As
such, it should carry little weight. The Defense disputes the claim that the purportedly overheard
conversation between mine guards ever took place. Furthermore, if a mine guard actually had
mentioned the passing of a mono ethnicity plan, the guard would not have been present at the closed
meeting of the DNP Executive Committee himself, even if such a meeting were to have taken place.
The Defense submits that the mere notion that such classified information from a closed meeting of
the Executive Committee should be relayed to a guard in a detention facility is preposterous.

1.4   Material  elements  of  crime  and  modes  of  liability  

Should the PTC determine that the case is admissible, the evidence admissible and the arrest
warrant lawful, the Defense submits that neither the material prerequisites of war crimes and crimes
against humanity nor the specific elements of the crimes have been satisfied in this case.
Further, the Defense submits that the facts of the case suggest that the elements constituting modes
of liability in relation to counts 1 and 2 have not been met. Finally the Defense holds, that the
submitted evidence does not establish the required mens rea pursuant to Art. 30(1).

1.4.1   The  Accused  has  not  facilitated,  aided  nor  abetted  the  crime  of  genocide  or  crimes  
against  humanity  
Pursuant to Art. 25(3)(c), the conduct which aids or abets must have a direct and substantial effect
on the commission of the crime.16 The conduct must to be specifically directed towards the aiding

                                                                                               
15
Case material, para. 13.
16
Robert Cryer, An Introduction to International Criminal Law and Procedure Cambridge University Press (2010), p.
371
7  
  
 

and abetting, and in the case of Mr. Balboa, this requirement is not met. The only interest Mr.
Balboa has is of economic nature, and Mr. Balboa did not intend to aid and abet in relation to
crimes against humanity, as per the required mens rea17. Furthermore, aiding and abetting is a form
of liability in which the accused contributes to the perpetration of a crime that is committed by
another person. Facilitation is a mode of accessorial liability, and accordingly, the Prosecution must
establish that the crime for which it seeks to make the accused responsible in fact occurred.18 The
crimes of genocide, pursuant to Art. 6(c) and crimes against humanity, pursuant to Art. 7(1)(c), for
which Mr. Balboa is accused has in fact not occurred and as such Mr. Balboa cannot be responsible
for crimes, which have not been committed.

2   Count  1:  Genocide,  punishable  under  Art.s  6(c)  of  the  Rome  
Statute.  

2.1   The  prerequisites  of  genocide  are  not  met  and  the  evidence  does  not  
prove  intent  
Mr. Balboa cannot be held personally liable for the detention of persons pursuant to the Temporary
Law. This must ultimately be the responsibility of the state of Neckar. Furthermore, although this
law is pursuant of a financial strategy19, there is no evidence to suggest that it serves to promote a
nationalistic mono-ethnicity plan, nor that such a plan indeed exists.

2.2   There  is  no  nationalistic  or  mono-­ethnicity  plan  targeting  a  minority    
The DNP was elected in a free and fair election, where political opponents were able to publicly
voice their stance.20 The Temporary Law, passed after the election, has not been intended to have
retroactive effect, in order to punish political opponents. This indicates a functioning judicial
branch, which does not pursue political aims, nor retroactively punish political opponents. The
Temporary Law is clearly based on the argument that the reason for the lack of economic stability
in the country, is the lack of support for the economic strategic policies implemented by the party21.

                                                                                               
17
ICTY, Prosecutor v. Simić, Tadić and Zarić, IT-95-9-T, Trial Judgment, 17 October 2003, para. 137. Also ICTY,
Prosecutor v. Stakić, IT-97-24 Trial Judgment 31 July 2003, para. 439; ICTY, Prosecutor v. Naletilić, IT-98-34-T,
Trial Judgment 31 March 2003, para. 62; ICTY, Prosecution v. Vasiljević, IT-98-32, Trial Judgment 29 November
2002, para. 62; ICTY, Prosecutor v. Kvocka et al., IT-98-30/1-T, Trial Judgment 2 November 2001, para. 250-251;
ICTY, Prosecutor v. Krstić, IT-98-33-T, Trial Judgment 2 August 2001, para. 601; ICTY, Prosecutor v. Kunarac et al.,
IT-96-23 & 23/1, Trial Judgment 22 February 2001, para. 390; ICTY, Prosecutor v. Kordić and Čerkez, IT-95-14/2,
Trial Judgment 26 February 2001, para. 376.
18
ICTY, The Prosecutor v. Radovan Karadžić, IT-95-5/18, Trial Judgement, 24 March 2014, para. 574.
19
Case material, para. 6.
20
Case material paras. 4 and 5.
21
Case material, para. 6.
8  
  
 

Therefore, the law has the legitimate aim of rectifying the economic situation and does not have
any aim of persecuting ethnic minorities.
Although the DNP has stated that the unwillingness of certain parties, political opponents and
ethnic minorities to support the DNP platform was the reason for the current economic climate in
Neckar22, this can in no way be seen as a stated support of genocide. A democratically elected
government must have the right to criticize an opposition which challenges a strategy for improving
the national economy. Furthermore, as the DNP criticizes the entire opposition as well as the Mosel
ethnic minority, this statement cannot be said to show that the intent of the Temporary Law was
specifically to target this ethnic group. Additionally, the detainment of part of an ethnic group does
not in itself suffice to establish genocide.23

2.3   The  detained  have  not  been  perceived  as  members  of  the  ethnic  minority  
group  
The Defense does not dispute the fact that the 200,000 people from various ethnic minorities within
Neckar constitute an ethnic group, due to a shared common language.2425 Nor does the Defense
dispute, that some of the detained individuals belongs to this ethnic minority. The group which has
been detained under the Temporary Law, consists not only of members of the ethnic minority, but
of members of the Neckar ethnic majority as well. The observation by the ILO does not constitute
proof that the ethnic minorities of Neckar are being specifically targeted, nor does it stipulate the
estimated percentage by which the ethnic minorities constitute the majority of detainees.26 As such,
the ethnic majority could constitute as much as 49 percent of the detainees. This NGO-report is
based on limited data and should thus carry little weight.
All detained individuals, have been arrested on suspicion of having violated the Temporary Law.
Therefore, although members of the ethnic minority group have indeed been arrested under this
provision, the ethnic minority group has not been specifically targeted, nor have any of the detained
persons been targeted due to their ethnicity, as evident from the fact that members of the ethnic
majority have also been arrested under the Temporary Law. The requirement that the victims, here
the detained, must be perceived by the perpetrators to be members of the ethnic minority is not
met.27

                                                                                               
22
Case Material para. 5.
23
ICTY, Prosecutor v. Milomir Stakic, Case No. IT-9724-T, Judgement (TC), 31 July 2003, para. 519.
24
ICTR, Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement (TC), 21 May 1999, para.
98: “An ethnic group is one whose members share a common language and culture; or, a group which distinguishes
itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes
(identification by others)."
25
Case material, para. 3.
26
Case material, para. 10.
27
ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 712:
9  
  
 

2.4   The  conditions  at  the  detention  facilities  were  not  calculated  to  bring  
about  the  physical  destruction  of  the  ethnic  minority  group,  in  whole  or  in  
part  
Besides conditions being calculated to bring about the physical destruction of the targeted group in
whole or in part, for the conditions of genocide to be met, the conditions must also be inflicted on
the group deliberately.28 The aim of the perpetrator in such cases must be to ultimately seek their
physical destruction.29 The ICTY has previously30 referred to the impossibility of enumerating in
advance the ‘conditions of life’ that would come within the prohibiting and that “intent and
probability of the final aim alone can determine in each separate case whether an act of Genocide
has been committed or not”31. As stipulated above32, the purpose of the rehabilitation of detainees in
the mines were to further the strategy of stabilizing the economy of Neckar, by utilizing unskilled
workers. Bearing this in mind, the physical destruction of the detainees could not have been the aim
of the rehabilitation as their destruction would actively go against furthering this strategy. Although
the NGO-reports33 may indicate that the conditions in the detention facilities are regrettable34, these
conditions have not been calculated to bring about the destruction of the detainees at large, nor the
detainees belonging to the ethnic minorities specifically.

2.5   Mr.  Balboa  did  not  intend  to  destroy  the  ethnic  group,  in  whole  or  in  part  
As discussed above35, the evidence that Mr. Balboa in any way had intended the destruction of the
ethnic minority, is based on hearsay evidence of a supposed mono-ethnicity plan.
The Defense reiterates, that the Temporary Law applies individuals in opposition to the
implementation of a policy for financial stabilization and the government per se and does not target
the ethnic minority. Thus, Mr. Balboa has not in his conduct shown any intent to destroy the ethnic
minorities of Neckar in whole or in part. Furthermore, there is no evidence suggesting that the
Accused was aware that the physical destruction of that group, in whole or in part, would occur in
the ordinary course of events.

                                                                                               
28
ICTY, Prosecutor v. Radoslav Brđanin, IT-99-36-T, Judgement (TC), 1 September 2004, para. 692
29
ICTY, Prosecutor v. Milomir Stakić, IT-97-24-T, Judgment (TC), 31 July 2003, para. 518; UN Doc. A/C.6/217
(Belgian proposal); UN Doc. A/C.6/SR.82 (Soviet amendment); Akayesu Trial Judgement, para. 505
30
ICTY, Prosecutor v. Radoslav Brđanin, IT-99-36-T, Judgement (TC), 1 September 2004, para. 906
31
Nehemiah Robinson, The Genocide Convention: a Commentary (Institute of Jewish Affairs, New York, 1960), p. 64
32
As discussed in section 2.2.
33
Case material, paras 9, 10 and 11.
34
The Defense respectfully reminds that human rights violations do not constitute genocide and as such is outside the
ambit of the ICC.
35
In section 1.3.1
10  
  
 

3   Count  2:  Crimes  against  humanity,  punishable  under  Arts  7(1)(c)  

of  the  Rome  Statute.  

3.1   The  prerequisites  for  Crimes  against  humanity  are  not  met  and  the  labor  
carried  out  by  the  detainees  does  not  constitute  slavery  
Due to the detainees at the mines being detained for the purpose of rehabilitation, the Defense
argues that this does not constitute slavery. As noted in the Kunarac Trial Judgement not all labor
or service by protected persons, including civilians, in armed conflicts, is prohibited.36

In line with the Krnojelac Trial Judgement37, the Defense argues that the Prosecution have not
established that a decision was taken to force the detainees to work. In Krnojelac the Trial Chamber
determined that it must be established that is a plan to keep detainees imprisoned for the primary
purpose of using them as labor. Furthermore, the Accused must be responsible for or involved in a
plan to keep any detainees at the detention facility for the primary purpose of being used for forced
labor.38 The Defense argues that the Prosecution has neither proven the existence of any such plan,
nor that the Accused is responsible for or involved in a plan of keeping the detainees at the mine for
the sole purpose of exploiting their labor. In fact the Temporary Law clearly states that the purpose
of the detention is rehabilitation.39

Although the satellite images may prove the existence of armed guards, this does not constitute
proof of the exercise of control over the detained subjects to an extent that constitutes slavery. The
ICTY Trial Chamber has previously been satisfied that working detainees were under armed
supervision, without concluding that this in and of itself constituted proof of slavery.40 In order for a
detention facility to effectively detain people, such a measure is in fact the norm rather than the
exception and should not be viewed as an extraordinary circumstance which proves the intent of
exerting control over the inmates which would amount to the crime of slavery. A general claim that
inmates were forced to work cannot be established, but must be assessed on an individual basis, in
line with the established practice of the ICTY.41

As established in Krnojelac, in order to assert that labor is carried out as an element of slavery, the
OTP must provide direct evidence that those who could not or were unwilling to work were forced

                                                                                               
36
ICTY, Prosecutor v. Kunarac, Kovac and Vukovic, IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001,
para. 542.
37
ICTY, Prosecutor v. Krnojelac, IT-97-25-T, Judgement, 15 March 2002.
38
Ibid. para. 369-370.
39
Case material para. 7.
40
ICTY, Prosecutor v. Krnojelac, IT-97-25-T, Judgement, 15 March 2002, para. 373-374.
41
“Whether a particular detainee was forced to work is to be assessed on an individual basis, as to whether he had no
real choice as to whether he had to work." ICTY, Prosecutor v. Krnojelac, Judgement, IT-97-25-T, 15 March 2002,
para. 372.
11  
  
 

to do so.42 Although the beliefs and fears of the detainees, in particular in the context of the general
inhumane conditions and atmosphere in the detention facilities, are of course relevant to a
determination of whether they worked voluntarily, “a reliance solely on such unsupported
conclusions expressed by the witnesses would not be safe”43. Evidence which establishes the
victim's subjective state of mind and relates to the facts indicating that he was forced to work44 was
further rejected as being sufficient to establish forced labor. The detainees' personal conviction that
they were forced to work must be proven with objective and not solely subjective evidence45. Were
the witness testimony of the Mosel police officer be admitted as evidence, the Defense argues that
this does not constitute proof of conditions of slavery.

Further, the ICTY Trial Chamber has previously rejected arguments by the Prosecution, that the
conditions of a detention facility in and of itself constitute an environment which is coercive as to
negate any possibility of consent by detainee workers.46

Thus, the Defense submits, that although the NGO-reports may indicate that the conditions in the
detention camp are unsatisfactory, the Prosecution has not satisfied the burden of proof for the
allegations brought against the Accused. There is no indication that the Accused should have
satisfied the actus reus for such a crime, as he has not exercised any or all of the powers of
ownership over one or more persons pursuant to Art. 7(1)(c).

3.1.1   Mens  rea  

Should the PTC find that the elements of the actus reus are present, there is no substantial evidence
proving the intent to exercise the powers attached to the right of ownership over the people of
Neckar. Mr. Balboa and the DNP have created a policy to help the country thrive economically,
through making citizens help where they can. Thus, some work in IT, some in manufacturing, and
some again in the mines.47 The people of Neckar have been working in mines for decades, and the
Accused had no intent of exercising powers relating to the right of ownership over the people. As
for the fellons under the Temporary Law, making them work during their atonement is not
unproportional.

                                                                                               
42
ICTY, Prosecutor v. Krnojelac, IT-97-25-T, Judgement, 15 March 2002, para. 375-376.
43
 Ibid., para. 377.  
44
 Case Material, para. 12
45
 ICTY, Prosecutor v. Krnojelac, IT-97-25-A, Appeals Judgement, 17 September 2003, para. 195.  
46
 Ibid., para. 192.  
47
Case material para. 6
12  
  
 

4   Count  3:  War  crime  punishable  under  Art.s  8(2)(b)(i),  8(2)(b)(ii))  

of  the  Rome  Statute.  

4.1   Perpetrator-­by-­  means:  Art.  25(3)(a)  og  (b)  

The Defense contests that war crimes pursuant to Art. 8(2)(b)(i) and 8(2)(b)(ii) of the Statute for
which Mr. Balboa is accused have in fact occurred. The Defense does not contest that Mr. Balboa
could be criminally liable for the offence of ordering, soliciting or inducing a criminal act.
However, the prerequisites of war crimes are not met and as such the act does not fall within the
scope of the Court’s jurisdiction.

4.2   The  Defense  does  not  find  the  necessary  nexus  for  the  alleged  crime  to  
fall  within  the  jurisdiction  of  war  crimes  to  be  present.  

4.2.1   The  conduct  was  not  associated  with  an  international  armed  conflict  
Although the Defense does not dispute that the conduct took place in the context of an armed
conflict,48 the particular action was not associated with this international armed conflict. Not all
violations of international humanitarian law amounts to war crimes.49
The ICC Chamber has previously defined, that it can be established that a crime has taken place in
the context of, or in association with an armed conflict only where “the alleged crimes were closely
related to the hostilities.”50 and that this means that the armed conflict "must play a substantial role
in the perpetrator's decision, in his ability to commit the crime or in the manner in which the
conduct was ultimately committed.”51 This definition has been reiterated by the PTC52 and the
ICTR trial chamber has further defined that "a nexus exists between the alleged offence and the
armed conflict when they are closely related. The existence of an armed conflict must, at a
minimum, have played a substantial part in the perpetrator's ability to commit the offence, his or her
decision to commit it, the manner in which it was committed, or the purpose for which it was
committed[...]”53
The Defense contests that there should exist a nexus between the alleged offence and the armed
conflict, as these are not closely related. Nothing suggests that the existence of an armed conflict
has played a substantial part in Mr. Balboa’s ability to commit the alleged offence, as he, due to his

                                                                                               
48
Case material para. 3
49
 ICTY, Prosecutor v. Tadić, IT-94-1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2
October 1995, para.  94.  
50
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-803-T, Decision,7 February 2007,para. 288.
51
Ibid., para. 287.
52
ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07-716-Conf., Decision on the confirmation of charges, 30
September 2008, para. 380.
53
ICTR, Prosecutor v. Nyiramashuko et al., ICTR-98-42, Trial Judgment, 21 June 2011, paras. 6153-6154.
13  
  
 

position as majority shareholder and CEO of “High-Tek” IT Corporation, has been in a position to
order, solicit or induce a criminal act. Whether an armed conflict existed or not, Mr. Balboa would
still be in this position of power, as a private individual, and has used no official nor military
channels to further the act. Thus, it cannot be concluded that any substantial part of the ability to
commit the alleged crime has been present due to the existence of an armed conflict. Nor does the
manner in which the alleged crime was committed, suggest that the existence of an armed conflict
has played a substantial role. The alleged attack was not carried out by military personnel using
conventional arms, but was carried out by privately employed individuals54, using means which
would be available to them even in the absence of the existence of a war.
As the sole owner, Chairman of the Board and CEO of “High-Tek-Mines” LLC55, it must be
assumed that Mr. Balboa has acted out of concern for the profits of his company and therefore out
of personal interest, in trying to limit the damage accrued by his company from the resulting
negative press and attention drawn to his company by possible further statements by the escaped
mine-workers. Nothing suggests, that the existence of the armed conflict has in any way played a
substantial role in Mr. Balboa’s decision to commit the alleged war crime or the purpose for which
it was committed. As has been established above, and in case-law56 the existence of an armed
conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit the
crime, his decision to commit it, the manner in which it was committed or the purpose for which it
was committed. The Defense contests that any of these contextual common elements, prerequisite
under Arts. 8(2)(b)(i), 8(2)(b)(ii)) of the Rome Statute, are met and thus, there are no substantial
grounds to believe that Mr. Balboa is criminally liable for war crimes.

5   Relief  Sought  
In view of all the above-stated arguments, it is submitted that the case against Mr. Balboa is
inadmissible, that his arrest warrant is unlawful and that the OTP has not presented sufficient
evidence to establish substantial grounds to believe that the Defendant is responsible for any of the
proposed charges. In the absence of factual and legal basis, the Defense respectfully requests the
PTC, in accordance with Art. 61(7)(b) of the Rome Statute, to decline confirming the charges
brought against Mr. Balboa and to order his immediate and unconditional release.

                                                                                               
54
Case material, para. 15
55
Case material, para. 1.
56
ICTY, Prosecutor v. Kunarac et al. IT-96-23&
IT-96-23/1-A, Appeal judgment, 12 June 2002, para. 58. See also ICTY, Vasiljević Trial Judgment, 29 November 2012,
para. 25.
14