ICC Moot Court Competition IN THE English Language

:
ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE
COUNSEL FOR THE DEFENSE
Team Number: 63
Year: 2020
Total Word Count: 9971
ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

Original: English Date: 16 March 2020
THE APPEALS CHAMBER
Case before the International Criminal Court:

Prosecutor v. Cersei Bannister of Valaria
The Defence Counsel’s Submission in the Appeal from the Pre-Trial

Chamber’s Decision on Confirmation of Charges against
Defendant Cersei Bannister of Valaria
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................. 6
INDEX OF AUTHORITIES ................................................................................................... 7
STATEMENT OF FACTS .................................................................................................... 15
ISSUES .................................................................................................................................... 17
SUMMARY OF ARGUMENTS ........................................................................................... 18
WRITTEN ARGUMENTS ................................................................................................... 19
STANDARD OF REVIEW ........................................................................................................ 19
I. THE COURT MAY NOT EXERCISE JURISDICTION UNDER ARTICLE

12(2)(A) OF THE ROME STATUTE .............................................................................. 19
A. Article 12(2)(a) requires the acts underlying the crime to have occurred on the
territory of a State Party ............................................................................................... 19
i. The Rome Statute and Elements of Crimes distinguish between the crime and its
components such that reference to conduct refers to a particular behaviour alone, to
the exclusion of its consequences ................................................................................. 20
a. The Rome Statute distinguishes between the crime and its components, such
that reference to conduct does not include the consequences of such conduct ....... 20
b. The Elements of Crimes support the conclusion that the term ‘conduct’ does
not take into account the consequences of such conduct ......................................... 21
ii. The drafting history of the Rome Statute indicate that ‘conduct’ refers to the
act(s) underlying the crime .......................................................................................... 22
iii. The Myanmar decisions do not apply as the facts and charges are
distinguishable from the present case .......................................................................... 24
B. The posts do not constitute direct and public incitement to genocide as they
were not direct, not public and not issued with genocidal intentError! Bookmark not
defined.
C. Conclusion .............................................................................................................. 27
3
II. THE CODED STATEMENTS POSTED ON THE DRAGOS PRIVATE
GROUPS DO NOT CONSTITUTE DIRECT AND PUBLIC INCITEMENT TO
GENOCIDE ........................................................................................................................ 28
A. Direct and public incitement is a mode of liability under the Statute requiring
the commission of genocide, which has not occurred ................................................. 28
i. Direct and public incitement is a mode of liability under the Statute ................... 28
ii. Direct and public incitement requires the commission of genocide which has
not occurred ................................................................................................................. 30
were not direct, not public and not issued with genocidal intent .............................. 32
i. The posts did not directly incite genocide as they did not specifically provoke
individuals to commit genocide ................................................................................... 32
ii. The posts did not publicly incite genocide as they were not made in a public
place nor before the general public at large ............................................................... 34
iii. The posts were not issued with genocidal intent ................................................ 35
C. Conclusion .............................................................................................................. 36
III. THE DEFENDANT CANNOT BE HELD CRIMINALLY RESPONSIBLE

FOR INCITEMENT TO GENOCIDE OR PROVIDING THE MEANS TO INCITE
GENOCIDE ........................................................................................................................ 37
A. The Defendant cannot be held criminally responsible for incitement to

genocide under Article 25(3)(e)..................................................................................... 37
i. The Defendant did not directly incite genocide as she did not post any statements
on Statusphere and the case of Nahimana can be distinguished ................................. 37
ii. The Defendant did not publicly incite genocide as she did not issue any call to
criminal action in a public place or to the general public .......................................... 39
iii. The Defendant did not possess the required genocidal intent as her actions
were undertaken to uphold the freedom of expression of Statusphere users and as her
statements only demonstrate discriminatory intent ..................................................... 41
B. The Defendant cannot be held criminally responsible for providing the means
to incite genocide under Article 25(3)(c) of the Rome Statute ................................... 42
4
i. The Defendant did not provide the means to incite genocide as her alleged failure
to act did not substantially affect the commission of the crime ................................... 43
ii. The Defendant did not know that her conduct would assist the incitement and
did not aim to facilitate it as she removed the posts when she became aware of their
offensive nature ............................................................................................................ 45
C. Conclusion .............................................................................................................. 46
SUBMISSIONS ...................................................................................................................... 47
5
LIST OF ABBREVIATIONS
AC Appeals Chamber
Elements Elements of Crimes
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
IACtHR Inter-American Court of Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICTY International Criminal Tribunal for the Former Yugoslavia
NMT Nuremberg Military Tribunal
OTP Office of the Prosecutor
PCIJ Permanent Court of International Justice
PTC Pre-Trial Chamber
Res Resolution
Statute Rome Statute of the International Criminal Court
TC Trial Chamber
UK United Kingdom
UN United Nations
UNGA United Nations General Assembly
UNHCHR United Nations High Commissioner for Human Rights
US United States of America
VCLT Vienna Convention on the Law of Treaties
6
INDEX OF AUTHORITIES
Treaties
Elements of Crimes of the International Criminal Court (adopted 9 August 2000) UN Doc
PCNICC/2000/1/Add.2 [Elements of Crime] .................................................................... 22
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered
into force 23 March 1976) 999 UNTS 171 [ICCPR].............................................. 33, 40, 51
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331 [VCLT]................................................................. 20, 21, 23
Preparatory Works
Association Internationale de Droit Pénal, Istituto Superiore Internazionale di Scienze

Criminali and Max Planck Institute for Foreign and International Criminal Law, Draft
Statute for an International Criminal Court – Alternative to the ILC Draft (Siracusa Draft),
Siracusa/Freiburg, July 1995 [Alternative to the ILC Draft 1995] .................................. 23
Bureau: proposal regarding part 2, Doc. A/CONF.183/C.1/L.59, 10 July 1998 (Vol. III, 212)
[Bureau proposal (10 July 1998)] ..................................................................................... 24
ICC Preparatory Works, Preparatory Committee, 1996 <www.legal-tools.org/doc/51b8c4>

accessed on 7 February 2020 [Preparatory Documents 1996] ......................................... 32
International Law Commission, Draft Statute for an International Criminal Court with
commentaries (1994) Yearbook of the International Law Commission, Vol. II, Part Two,
A/CN.4/SER.A/1994/Add.l [ILC Draft (1994)] ................................................................. 23
Preparatory Committee on the Establishment of an International Criminal Court (16 March –

3 April 1998), A/AC.249/1998/CRP.9, 1 April 1998, Text of the Draft Statute for the
International Criminal Court – Part. 3 General Principles of Criminal Law [Preparatory
Committee on the Establishment of an ICC (1 April 1998)] .......................................... 24
7
Preparatory Committee on the Establishment of an International Criminal Court (16 March –
3 April 1998), Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in
Zutphen, The Netherlands, A/AC.249/1998/L.13, 4 February 1998 [Preparatory
Committee on the Establishment of an ICC (4 February 1998)] ................................... 24
Preparatory Committee on the Establishment of an International Criminal Court, Working

Group on Complementarity and Trigger Mechanism, Rolling Text for Articles 21, 21bis,
21ter, 22, 23, 24, 25 and 25bis, A/AC.249/1997/WG.3/CRP.1/Rev/1, 14 August 1997
[Preparatory Committee on the Establishment of an ICC (14 August 1997)] ............. 23
Preparatory Committee on the Establishment of an International Criminal Court, Working

Group on General Principles of Criminal Law and Penalties (11-21 February 1997),
A/AC.249/1997/WG.2/CRP.4, 20 February 1997 [Preparatory Committee on the
Establishment of an ICC (20 February 1997)] ................................................................ 24
Report of the International Law Commission on the Work of its 48th session, 6 May – 26 July
1996, Official Records of the General Assembly, 51st session, Supp. No. 10, Yearbook of
the International Law Commission, Vol. II, Part Two, A/51/10 Vol. II, Part Two (1996)
[ILC Report (1996)] ......................................................................................... 26, 32, 37, 41
Report of the Preparatory Committee on the Establishment of an International Criminal Court

(14 February 1997), United Nations General Assembly Official Records,
A/AC.249/1997/WG.1/CRP.1 (14 February 1997) [Preparatory Committee on the
Establishment of an ICC (1997)] ...................................................................................... 32
Report of the Preparatory Committee on the Establishment of an International Criminal

Court, Doc. A/CONF.183/2, 14 April 1998 [Preparatory Committee on the
Establishment of an ICC (14 April 1998)] ....................................................................... 23
Report of the Preparatory Committee on the Establishment of an International Criminal

Court, United Nations General Assembly Official Records, A/AC.249/1998/WG.4/DP.20
(19 March 1998) [Preparatory Committee on the Establishment of an ICC (1998)] ... 32
Cases - International Criminal Court
8
Prosecutor v Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09 (4 March 2009) [Bashir
warrant of arrest] ............................................................................................................... 34
Prosecutor v Mbarushimana (Decision on the confirmation of charges) ICC-01/04-01/10 (16

December 2011) [Mbarushimana confirmation] .............................................................. 49
Prosecutor v Ruto et al. (Decision on the Confirmation of Charges Pursuant to Article

61(7)(a) and (b) of the Rome Statute) ICC-01/09-01/11 (23 January 2012) [Ruto
confirmation] ...................................................................................................................... 49
Request under Regulation 46(3) of the Regulations of the Court (Decision on the
“Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”)
ICC-RoC46(3)-01/18 (6 September 2018) [Myanmar decision on jurisdiction] ........ 26, 27
Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar,

(Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an
Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the
Union of Myanmar) ICC-01/19 (14 November 2019) [Myanmar authorisation decision]
........................................................................................................................................ 26, 27
Cases - International Criminal Tribunal for the former Yugoslavia
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) 2007 ICJ Rep 43 [Bosnia
and Herzegovina v Serbia and Montenegro] ............................................................... 39, 46
Prosecutor v Blagojević and Jokic (Judgement) IT-02-60-A (9 May 2007) [Blagojević

appeal] ................................................................................................................................. 49
Prosecutor v Blaškić (Appeal Judgment) IT-95-14-A (29 July 2004) [Blaškić appeal] ........ 49
Prosecutor v Bradnin (Trial Judgment) IT-99-36-7 (1 September 2004) [Brdanin trial]...... 46
Prosecutor v Brdanin (Appeal Judgment) IT-99-36-A (3 April 2007) [Brdanin appeal] 45, 48
9
Prosecutor v Milomir Stakić (Appeal Judgment) IT-97-24-A (22 March 2006) [Stakic
appeal] ........................................................................................................................... 26, 46
Prosecutor v Mladić (Trial Judgement) IT-09-92-T (22 November 2017) [Mladic trial]...... 49
Prosecutor v Mrksic et al. (Appeals Judgement) IT-95-13/1-A (5 May 2009) [Mrksic appeal]
........................................................................................................................................ 45, 48
Prosecutor v Oric (Appeal Judgment) IT-03-68-A (3 July 2008) [Oric appeal]............ 45, 48
Prosecutor v Šainović.(Appeal Judgment) IT-05-87 (23 January 2014) [Šainović appeal];.. 45
Prosecutor v Tadić (Judgment) IT-94-1-T (7 May 1997) [Tadić trial] .................................. 49
Prosecutor v Tolimir (Judgment) IT-05-88/2-T (12 December 2012) [Tolimir trial] ............ 34
Prosecutor v Vasiljević (Judgment) IT-98-32-A (25 February 2004) [Vasiljević appeal] ..... 49
Cases - International Criminal Tribunal for Rawanda
Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) [Akayesu trial] . passim
Prosecutor v Bikindi (Trial Judgment) ICTR-01-72-T (2 December 2008) [Bikindi trial].... 42
Prosecutor v Kajelijeli (Judgment and Sentence) ICTR-98-44A-T (1 December 2003)

[Kajelijeli trial] .............................................................................................................. 42, 44
Prosecutor v Kajelijeli (Judgment) ICTR-98-44A-A (23 May 2005) [Kajelijeli appeal] ...... 42
Prosecutor v Kalimanzira (Appeal Judgement) ICTR-05-88-A (20 October 2010)

[Kalimanzira appeal] .................................................................................................... 38, 44
Prosecutor v Kambanda (Indictment) ICTR-97-23-DP (16 October 1997) [Kambanda

indictment] .......................................................................................................................... 43
Prosecutor v Kambanda (Judgement) ICTR-97-23-S (4 September 1998) [Kambanda trial]

.............................................................................................................................................. 43
10
Prosecutor v Nahimana, Barayagwiza and Ngeze (Appeal Judgement) ICTR-99-52-A (28
November 2007) [Nahimana appeal] .......................................................................... passim
Prosecutor v Nahimana, Barayagwiza and Ngeze (Judgement and Sentence) ICTR 99-52-T
(3 December 2003) [Nahimana trial] ............................................................... 36, 39, 42, 43
Prosecutor v Ndindabahizi (Judgment) ICTR-01-71-A (16 January 2007) [Ndindabahizi

appeal] ................................................................................................................................. 48
Prosecutor v Ngirabatware (Judgement and Sentence) ICTR-99-54-T (20 December 2012)

[Ngirabatware trial] ...................................................................................................... 42, 44
Prosecutor v Niyitegeka (Judgment and Sentence) ICTR-94-14-T (16 May 2003) [Niyitegeka
trial] ..................................................................................................................................... 44
Prosecutor v Ntagerura et al. (Appeal Judgment) ICTR-99-46-A (7 July 2006) [Ntagerura

appeal] ........................................................................................................................... 45, 48
Cases - International Military Tribunal
The Trial of German Major War Criminals (Judgement) IMT (1 October 1946) [Nuremberg
Judgement] ......................................................................................................................... 36
Cases - Other Courts
Handeyside v United Kingdom (Merits) ECHR AP No.5493/72 (7 December 1976)

[Handeyside merits] ............................................................................................................ 27
Malcolm Ross v Canada CCPR/C/70/D/736/1997, UN Human Rights Committee (HRC), 26

October 2000 [Malcolm Ross v Canada] ............................................................................ 33
United Nations Documents
Statute of the International Criminal Tribunal for Rwanda (adopted 8 November

1994) [ICTR Statute] ................................................................................................... 32, 36
Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May
1993) [ICTY Statute] ......................................................................................................... 32
11
UN Doc. A/C.6/SR.84 (United States) .................................................................................... 33
UN Doc. A/C.6/SR.85 (United States). ................................................................................... 34
UN Human Rights Committee, ‘General Comment 34’ (12 September 2011) UN Doc
CCPR/C/GC/34 [General Comment 34] ..................................................................... 33, 46
Books
Gilbert Bitti, ‘Article 21 of the Statute of the International Criminal Court and the treatment
of sources of law in the Jurisprudence of the ICC’, in Carsten Stahn and Göran Sluiter, The
Emerging Practice of the International Criminal Court (Leiden, 2009), 285-304 [Bitti
(2009)].................................................................................................................................. 28
M. Cherif Bassiouni Introduction to International Criminal Law (Leiden: Brill Nijhoff, 2012)
[Bassiouni (2012)] ............................................................................................................... 28
Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (CUP 2014)
[Vagias (2014)] ........................................................................................................ 21, 24, 28
Per Saland, ‘International Criminal Law Principles’ in Roy S Lee (eds), The International
Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer
Law International, 1999) [Saland (1999)]..................................................................... 24, 32
Robert Cryer et al. (eds), An Introduction to International Criminal Law and Procedure
(CUP, 2007) [Cryer (2007)]................................................................................................ 32
William Schabas, Genocide in International Law. The Crimes of Crimes (CUP 2000)
[Schabas (2000)] ................................................................................................................. 31
Articles
Anne-Laure Chaumette, ‘International Criminal Responsibility of Individuals in Case of

Cyberattacks’ (2018) 18 IntlCLR [Chaumette (2018)] ...................................................... 29
Jean-Baptiste Maillart, ‘Article 12(2)(a) Rome Statute: The Missing Piece of the
Jurisdictional Puzzle’ (2014) EJIL: Talk! [Maillart (2014)] ........................................ 23, 24
12
Joel Simon, ‘Of Hate and Genocide: In Africa, Exploiting the Past’ (2006) 9 Columbia
Journalism Review [Simon (2006)]..................................................................................... 33
M. Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives

and Contemporary Practice’, 42 Va J Intl L 81 (2001) [Bassiouni (2001)] ........................ 28
Stewart Manley, ‘Referencing Patterns at the International Criminal Court’ (2016) 27 EJIL
191-214 [Manley (2016)] .................................................................................................... 28
Thomas Davis, ‘How the Rome Statute Weakens the International Prohibition on Incitement
to Genocide’ (2009) 22 HarvHumRtsJ [Davis (2009)] ................................................. 31, 32
Commentaries
Antonio Cassese et al. (eds), The Rome Statute of the International Criminal Court: A
Commentary (OUP, 2002) [Cassese Commentary (2002)] ......................................... 21, 22
Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court:
Observers’ Notes, Article by Article (2nd edn, Munich: Beck-Hart-Nomos, 2008)
[Triffterer Commentary (2008)] ................................................................................. 21, 22
Miscellaneous
Council of Europe, Chart of Signature and Ratifications of Treaty 185 (Treaty Office, 15
February 2013), <https://www.coe.int/en/web/conventions/full-list/-
/conventions/treaty/185/signatures> accessed 10 March 2020 [COE Chart of Signatures
and Ratifications of Treaty 185] ....................................................................................... 29
Council of Europe, Economic Crime Division Directorate General of Human Rights and
Legal Affairs, Discussion paper (draft): Cybercrime and Internet Jurisdiction, 5 March
2009 [40] <https://rm.coe.int/16803042b7> accessed 9 January 2020 [COE Cybercrime
and Internet Jurisdiction draft] ........................................................................................ 29
Geoff Curfman, ‘ICC Jurisdiction and the Rohingya crisis in Myanmar’ (9 January 2018)
available at <https://www.justsecurity.org/50793/icc-jurisdiction-rohingya-crisis-
myanmar/> accessed on 15 December 2019 [Curfman (2018)]......................................... 20
13
Oxford Learners’ Dictionary Online (OUP, 2020), ‘conduct’
<https://www.oxfordlearnersdictionaries.com/definition/english/conduct_1> accessed on
10 February 2020 [OLD, ‘conduct’]................................................................................... 21
Oxford Learners’ Dictionary Online (OUP, 2020), ‘omission’

<https://www.oxfordlearnersdictionaries.com/definition/english/omission?q=omission>
accessed on 10 February 2020 [OLD, ‘omission’] ............................................................. 44
14
STATEMENT OF FACTS
1. Valaria and Solantis are neighbouring States. The population of Valaria is composed
of Nothroki whilst the population of Solantis is composed of 97% Nothroki and 3%
Stareks. Both States share the common language of Valarian but have different
dialects, each with particular grammar, idioms and vocabulary.
2. The Defendant is a national of Valaria where she has lived her whole life. After
graduating from the Valaria Institute of Technology, she founded the social network,
Statusphere. The company’s headquarters and servers are located in Valaria. Both
Solantis and Valaria have active users on the network, with 70% from Valaria. Thanks
to Statusphere, citizens from both countries can obtain news, weather forecasts and
government information.
3. Statusphere also allows users to create private closed groups. To view its content, a
user must specifically search for the group and sign up. Posts cannot be viewed by the
general public.
4. In 2018, Dragos, a Nothroki extremist group based in Solantis, created the private
group ‘Dragos Initiative’ on which some Dragos members anonymously posted coded
calls to violence against the Stareks. On 25 May 2019, the UNHCHR issued a report
concluding that the term ‘widget’ represented an ethnic slur and was potentially
linked to violence against Stareks. Upon reading the report, the President of Solantis
asked the Defendant to remove the offending posts. Immediately after, the Defendant
closed down the Dragos Initiative group in accordance with the platform’s community
standards policy. After this closure, Dragos members created a new group page called
‘Dragos Ambition’.
5. On 16 June 2019, Dragos members perpetrated an attack against Stareks. That

morning, an anonymous statement was posted on ‘Dragos Ambition’ stating “it is
time for a widget roast”. The meaning of this post could not be understood by the
Statusphere content monitors because of the differences in dialects. After the attack,
the Defendant removed Dragos Ambition from Statusphere.
15
6. On 7 November, election day, Dragos individuals indiscriminately attacked voters at
election centres. The day before, an anonymous statement was posted on a new
Dragos private group, calling Dragos members to go to four voting centres and “do
what must be done to prevent the widgets from gaining power”. Taking precautions,
the Defendant’s staff brought this statement to her attention. As it was posted on
election day, she interpreted it as a call to campaign and vote. Following the attack,
the Defendant removed the offending group from Statusphere.
7. The election resulted in the victory of Ayra Gendry, a Solantis politician of Nothroki
ethnicity who spoke out against the increasing violence. Solantis then enacted a new
law enabling the prosecution of those who incite violence against minorities using the
internet. They have already arrested over a dozen Dragos members and are still
investigating others.
8. Valaria is not a State Party to the Rome Statute. Solantis has ratified the Rome
Statute. Both States are parties to the ICCPR and the Genocide Convention.
9. Solantis referred the matter of the Defendant to the Court for prosecution. The PTC
found that she can be held criminally responsible for inciting genocide under Article
25(3)(e) and providing the means to incite genocide under Article 25(3)(c) of the
Rome Statute. Leave for Appeal has been granted to the Defendant and the matter is
now pending before the AC. The AC has sought submissions on the following issues.
16
ISSUES
1. Whether the Court may exercise jurisdiction under Article 12, considering that the
Defendant’s criminal conduct occurred in Valaria, a non-State Party to the Rome
Statute.
2. Whether the coded posts by Dragos members on Statusphere, between January 2018
and January 2020, constitute direct and public incitement of genocide under Article
25(3)(e) of the Statute.
3. Whether the Defendant can be held criminally responsible for inciting genocide under
Article 25(3)(e) and providing the means to incite genocide under Article 25(3)(c) of
the Statute for her alleged failure to remove the coded posts and prevent the reposting
of similar statements on private Dragos groups.
17
SUMMARY OF ARGUMENTS
1. First, the finding of the PTC that the Court may exercise jurisdiction is materially
affected by an error of law. Under Article 12, the Court may only exercise jurisdiction
when the act(s) underlying the crime occurred on the territory of a State Party to the
Statute. The Defendant’s acts occurred on the territory of Valaria, a non-State Party.
2. Second, the finding of the PTC that the posts made on the Dragos private groups
constituted direct and public incitement to genocide under Article 25(3)(e) is
materially affected by an error of law. The posts did not specifically provoke others to
commit genocide, were not made to the general public and were not issued with
genocidal intent.
3. Third, the finding of the PTC that the Defendant can be held criminally responsible
for direct and public incitement to genocide under Article 25(3)(e) is materially
affected by an error of law. She did not post any offensive statements, publicly call
for criminal action and did not possess genocidal intent. The finding of the PTC that
the Defendant can be held criminally providing the means to incite genocide under
Article 25(3)(c) is materially affected by an error of law. She was not bound by a
legal duty to act, did not substantially contribute to the incitement and did not aim to
facilitate the crime.
18
WRITTEN ARGUMENTS
Standard of Review
1. The standard to be applied by the AC when reviewing decisions of the PTC is whether
they are materially affected by errors of fact or law.1
2. The PTC can confirm charges only when there is sufficient evidence to establish
substantial grounds of the Defendant’s criminal responsibility for the crime charged. 2
The burden of proof rests with the Prosecution to establish compelling charges
beyond mere suspicions.3
3. In the present case, the Prosecution failed to meet its burden of proof in demonstrating
the substantial grounds to confirm the Defendant’s criminal responsibility. The PTC
committed a material error of law in confirming the charges against the Defendant.
ARGUMENTS
I. THE COURT MAY NOT EXERCISE JURISDICTION UNDER ARTICLE

12(2)(A) OF THE ROME STATUTE
4. The finding of the PTC that the Court may exercise jurisdiction in the present case is
materially affected by an error of law. The legal requirements of Article 12(2)(a) of
the Statute have been subject to speculation. For this reason, the exact scope of the
provision shall first be addressed by establishing that Article 12(2)(a) requires the acts
underlying the crime to have occurred on the territory of a State Party. The Rome
Statute, the Elements of Crimes and the drafting history of the Statute establish a clear
distinction between ‘conduct’ and ‘crime’ [A]. Second, this is applied in the present
case by demonstrating that the Court may not exercise jurisdiction because the
conduct of the Defendant occurred in Valaria, a non-State Party to the Statute [B].
A. Article 12(2)(a) requires the acts underlying the crime to have occurred on
the territory of a State Party
1
Article 83(2) Rome Statute.
2
Article 61(5) and Article 61(7)(a) Rome Statute.
3
Article 66(2) and Article 67(1)(i) Rome Statute; Lubanga confirmation [37].
19
5. Article 12(2)(a) provides that the Court may only exercise jurisdiction if the conduct
in question occurred on the territory of a State Party. This ‘conduct’ requirement
means that the Court will have jurisdiction only if the acts underlying the crime
occurred on the territory of a State Party, and does not include the consequences of
such acts.4 This is for two reasons. First, the Statute and the Elements of Crimes draw
a distinction between the crime and its components – the conduct and its
consequences – such that reference to ‘conduct’ refers to a certain behaviour alone
and excludes the consequences of such behaviour [i]. Second, the drafting history of
the Rome Statute indicates that ‘conduct’ refers to the act(s) underlying the crime [ii].
Third, the Myanmar decisions do not apply as the facts and charges are
distinguishable from the present case [iii].
i. The Rome Statute and Elements of Crimes distinguish between the crime and
its components such that reference to conduct refers to a particular
behaviour alone, to the exclusion of its consequences
6. Article 12(2)(a) must be interpreted in light of the text of the Statute and the Elements
of Crimes.5 The Statute [a] and the Elements of Crimes [b] indicate that each crime
within the jurisdiction of the Court is comprised of two distinct components, the
conduct and the consequences. Therefore, when the Statute uses the term ‘conduct’, it
does not refer to the crime in all its components. Rather, it refers to conduct in its
ordinary meaning alone,6 a certain behaviour,7 and excludes the consequences of such
behaviour.
a. The Rome Statute distinguishes between the crime and its components,
such that reference to conduct does not include the consequences of such
conduct
7. Three provisions of the Statute when read together lead to the conclusion that each
crime is composed of the conduct and the consequences of such conduct, and that
4
Curfman (2018).
5
Article 31(2) VCLT. The interpretation of the Rome Statute is governed by the VCLT: Lubanga confirmation
[277-285].
6
Article 31 VCLT.
7
OLD, ‘conduct’.
20
every use of the term ‘conduct’ refers to the conduct alone – a certain behaviour – to
the exclusion of its consequences.
8. First, Article 30(2) states that “[f]or the purpose of this article, a person has intent
where: (a) [i]n relation to conduct, that person means to engage in the conduct; (b)
[i]n relation to a consequence, that person means to cause that consequence”. This
wording makes it clear that each crime within the jurisdiction of the Court is
comprised of two distinct components, the conduct and the consequence, and that the
perpetrator must intend both.8
9. Second, Article 31 focuses on the ‘conduct’ of a person in relation to the grounds for
excluding criminal responsibility. This indicates that “the critical time for assessing
the existence of a ground precluding responsibility is the time of criminal conduct, not
the time of manifestation of the criminal result”9, and as such evidences the
distinction between a criminal conduct and its consequences.
10. Third, Article 20(1) prohibits trying a person with respect to a “conduct which formed
the basis of crimes for which the person has been convicted or acquitted by the
Court”. This provision means that the same actions can form the basis of different
crimes, and that a person acquitted or convicted by the Court could be tried for the
same conduct or action on account of other criminal charges at the national level.10 As
Article 20(1) implies that the same actions could lead to multiple crimes, it
demonstrates that ‘conduct’ is not synonymous to ‘crime’.
11. A systematic reading of these sections indicates that in the Statute, the term ‘crime’
subsumes the ‘conduct’ and its ‘consequences’. When a section of the Statute relies
on the ‘conduct’, it intends to refer to one of the elements of the crime alone, but not
to the crime in all its components.
b. The Elements of Crimes support the conclusion that the term ‘conduct’
does not take into account the consequences of such conduct
8
Vagias (2014) 91-92.
9
Triffterer Commentary (2008) 872 ; Cassese Commentary (2002) 1028-1029.
10
Triffterer Commentary (2008) 686-687; Cassese Commentary (2002) 723-724.
21
12. The Elements also make it clear that ‘conduct’ and ‘consequence’ are subcomponents
of the overarching notion of ‘crime’. According to the General Introduction, the
Elements are meant to address the “conduct, consequences and circumstances
associated with each crime”.11 It further states that “a particular conduct may
constitute one or more crimes”.12
13. A reading of Article 12(2)(a) in light of the distinction drawn in the Statute and in the
Elements between the crime and its components, the conduct and the consequences,
leads to the conclusion that ‘conduct’ has a meaning differing from ‘crime’ in that it
refers to a particular behaviour alone, to the exclusion of the consequences of such
behaviour.
ii. The drafting history of the Rome Statute indicates that ‘conduct’ refers to the
act(s) underlying the crime
14. The preparatory work of the Statute13 indicates that the Parties intended the term
‘conduct’ in Article 12(2)(a) to refer to the act(s) underlying the crime.
15. The Statute in its current version was borne out of multiple negotiations that started in
the 1994 Draft Statute. In that first version, draft Article 21(1)(b)(ii), for the purpose
of territorial jurisdiction, referred to the “State on the territory of which the act or
omission in question occurred” and not to the State on the territory of which the crime
was committed.14 The 1995 Alternative Draft also established jurisdiction on basis of
the occurrence of ‘the act or omission’ on a State Party’s territory. 15 Throughout the
preparatory documents from 1997 to 1998, the same language is used in the draft
provisions relating to the territorial jurisdiction of the Court: it is triggered when the
‘act or omission’ occurred on a State Party’s territory. 16 Not a single one of these
11
Elements of crimes, General introduction [7].
12
Ibid [9].
13
Article 32 VCLT.
14
Article 21(1)(b)(ii) ILC Draft 1994 ; Maillart (2014).
15
Article 21 Alternative to the ILC Draft (1995).
16
Preparatory Committee on the Establishment of an ICC (14 August 1997) Draft Article 21 and Draft Article
25; Preparatory Committee on the Establishment of an ICC (14 April 1998) 23, Draft Article 7 (option 2) and
26, further options for Articles 6, 7, 10 and 11, Draft Article 7; Bureau proposal (10 July 1998) Draft Article 7.
22
documents mention the possibility of referring to the location of the ‘commission of
the crime’ in the future Article 12(2)(a). In the final adopted version of the Statute, the
term ‘conduct’ replaced the expression ‘act or omission’. The only reason for this last
minute change lies in the fact that the parties could not come to an agreement on the
role of ‘omissions’ in the material elements of crimes.17
16. It is also relevant to examine the evolution of the mental element provision. The 1997
and 1998 draft provisions link ‘conduct’ to ‘act or omission’ for the purpose of the
intent requirement: “in relation to conduct, that person means to engage in the act or
omission”.18 The use of both expressions in the same sentence implies that they have
the same legal meaning for the purpose of the intent requirement.
17. All these elements point to the fact that the drafters intended to give the same meaning
to ‘conduct’ as that of, to the very least, ‘act’. The change from ‘act or omission’ to
‘conduct’ is only due to an absence of consensus around the implications of
‘omission’. The possibility of establishing the territorial jurisdiction of the Court by
reference to the place of the commission of the crime was never raised.
18. For these reasons, the term ‘conduct’ in Article 12(2)(a) must be understood by this
Court as referring to the physical acts underlying the alleged crime. In the present
case, that would be the Defendant allowing users to post statements on private groups,
and not immediately removing and blocking such statements while in the territory of
Valaria, a non-State Party.
19. In light of the foregoing, this Court must find that the term ‘conduct’ in Article
12(2)(a) must be defined narrowly to include only the underlying acts taken to
effectuate the crime, to the exclusion of the consequences of such act(s). This is the
only correct interpretation of the provision in light of the distinction drawn by the
Statute and the Elements between a crime, a conduct and its consequences, and in
light of the drafting history of the Rome Statute. Accordingly, this Court must
17
Vagias (2014) 92; Maillart (2014); Saland (1999) 205.
18
Preparatory Committee on the Establishment of an ICC (20 February 1997) Chairman’s Text, Draft Article H;
Preparatory Committee on the Establishment of an ICC (4 February 1998) Draft Article 23(H), 59; Preparatory
Committee on the Establishment of an ICC (1 April 1998) Draft Article 23(H), 9.
23
conclude that Article 12(2)(a) requires that the acts underlying the crime occurred on
the territory of a State Party in order to trigger the jurisdiction of the Court.
iii. The Myanmar decisions do not apply as the facts and charges are
distinguishable from the present case
20. In the Myanmar decisions, the Court ruled that ‘conduct’ and ‘crime’ had the same
significance in Article 12(2)(a),19 and that it sufficed that part of the crime occurred
on the territory of a State Party to establish the jurisdiction of the Court.20
21. These decisions are distinguishable from the present case. The conclusion reached by
the two PTC was specifically tailored to the crime against humanity of deportation,21
which differs from incitement to genocide. As endorsed by the first Myanmar
decision22 and by other authorities23 including the ICTY,24 the key element of the
crime against humanity of deportation is the crossing of an international border. 25 The
PTC emphasised that “the inherently transboundary nature of the crime of
deportation” confirmed its interpretation of ‘conduct’ in Article 12(2)(a) as equating
to ‘crime’.26
22. Moreover, the PTC in the first decision applied this interpretation of Article 12(2)(a)
to other crimes against humanity also constituted through the crossing of the
international border between Myanmar and Bangladesh. Since the crime of
‘persecution’ “must be committed in connection with any other crime within the
jurisdiction of the Court, which includes deportation”,27 the Court concluded that the
19
Myanmar decision on jurisdiction [64]; Myanmar authorisation decision [43], [48-49] .
20
Myanmar decision on jurisdiction [64]; Myanmar authorisation decision [62].
21
Article 7(1)(d) Rome Statute.
22
Myanmar decision on jurisdiction 55.
23
ILC Report (1996) 49.
24
Stakic appeal 300.
25
Myanmar decision on jurisdiction 57.
26
ibid [71].
27
Article 7(1)(h) Rome Statute.
24
cross-border transfer was the constitutive element of the persecution.28 With regards
to the crime of ‘other inhumane acts’,29 the Court noted that the impediment on the
Rohingya’s return to Myanmar “following their deportation” would fall under Article
7(1)(k) of the Statute.30
23. In the second decision, the reasoning of the Chamber was governed by the fact that
they were dealing with a transboundary crime by definition, that is, where the crossing
of an international border is a legal element of the crime. The Chamber concluded that
it was not “necessary to formulate abstract conditions for the Court’s exercise of
territorial jurisdiction for all potentially transboundary crimes contained in the
Statute”,31 thereby implying that its analysis of Article 12(2)(a) relates to
transboundary crimes only.
24. Incitement to genocide is not an inherent transboundary crime as it does not require a
transboundary element to be established. Therefore, the reasoning of the PTCs with
regards to Article 12(2)(a) must not be followed in the present case, where deportation
and related crimes are not at hand.
25. Applying the conclusion reached in Myanmar that ‘conduct’ means ‘crime’ for the
purpose of Article 12(2)(a) beyond inherent transboundary crimes would lead to
problematic results. It would grant jurisdiction to the Court over any situation that has
some ramification on the territory of a State Party, regardless of whether or not the
principal actions that effectuated the alleged crime took place on a State Party’s
territory. This risks awarding universal jurisdiction to the Court, which the States
Parties rejected during the negotiations of the Statute.32
26. Should the Court decide that the facts of the present case are similar to Myanmar, it
may nevertheless depart from its prior decisions because it is not bound to them.
28
Myanmar decision on jurisdiction [75-76].
29
Article 7(1)(k) Rome Statute.
30
Myanmar decision on jurisdiction [77].
31
Myanmar authorisation decision [62].
32
Vagias (2012) 59; Bassiouni (2001) 106; Bassiouni (2012) 659.
25
According to the hierarchy established in Article 21 of the Statute, precedent of the
Court has no compulsory effect.33 Accordingly, case law only intervenes as a
subsidiary means of interpretation,34 when the Statute and the Elements do not
provide satisfactory guidance. As demonstrated above, the interpretation of ‘conduct’
as ‘act(s) underlying the crime’ directly flows from the contextual interpretation of the
Statute and from its drafting history. Such interpretation takes precedence in this case
over conclusions reached by this Court in another case, facing different facts and law.
27. This Chamber is not bound by the Myanmar decisions and must not follow their
interpretation, since the crimes dealt with by this Chamber differ in nature from the
crime against humanity of deportation. The Court must keep to the meaning of
‘conduct’ stemming from the contextual interpretation of Article 12(2)(a) and give
consideration only to the acts underlying the alleged crime of incitement to genocide
and aiding and abetting incitement to genocide, to the exclusion of the consequences
of such acts.
B. The conduct of the Defendant occurred in Valaria, a non-State Party to the

Statute
28. The Defendant’s alleged actions are allowing users to post statements on Statusphere
private groups, and not removing such posts and preventing their reposting. These are
the actions taken to effectuate the alleged crime and correspond to the ‘conduct in
question’ in Article 12(2)(a) of the Statute. These actions occurred on the territory of
Valaria.
29. Crimes committed through the use of the internet do not change the application of
Article 12(2)(a). Although the internet is not a tangible zone, there is always a
connecting link to a State’s territory, such as the territory where the network’s are
located.35 As emphasised by the drafting committee of the Council of Europe
Cybercrime Convention, there is always a person of “flesh and blood who at a
determined moment of time and at some specific physical location initiates their
33
Manley (2016) 196; Bitti (2009) 292; Cassese Commentary (2002) 1062.
34
Cassese Commentary (2002) 1062.
35
Chaumette (2014) 4-5.
26
criminal scheme”.36 This Convention is the only existing international instrument
addressing crimes committed through cyberspace and has been widely ratified,
including by States who are not parties to the Council of Europe. 37
30. In the present case, notwithstanding the fact that her conduct was related to statements
communicated through a social network, it is the actions she took as a natural person
on how to deal with Dragos private groups and the statements posted on those groups
that are incriminated. She took those decisions at a specific physical location.
31. The Defendant has lived in Valaria her whole life. The headquarters and the servers of
Statusphere are located in Valaria.38 There are therefore substantial grounds to believe
that the Defendant was physically present in Valaria when the statements on Dragos
escape her and Statusphere’s vigilance on 16 June, and when she decided not to
remove the statements that she and her content monitors could not understand on 6
November. There is no evidence that her actions would have taken place anywhere
else than in Valaria.
32. In light of these elements, this Court must conclude that the conduct of the Defendant
occurred on the territory of Valaria. The conditions of Article 12(2)(a) are not met,
because Valaria is not a State Party to the Statute. Therefore, the PTC materially erred
in finding that this Court may exercise jurisdiction in the present case.
C. Conclusion
33. For these reasons, the Court may not exercise jurisdiction in the present case. Under
Article 12(2)(a), the Court may only exercise jurisdiction when the act(s) underlying
the crime occurred on the territory of a State Party. The conclusion reached in
Myanmar cannot be applied in the present case. The actions of the Defendant taken to
effectuate the crime occurred on the territory of Valaria, a non-State Party. Therefore,
the Court must reverse the finding of the PTC that the Court may exercise jurisdiction
as it is materially affected by an error of law.
36
COE Cybercrime and Internet Jurisdiction draft [40].
37
COE Chart of Signatures and Ratifications of Treaty 185.
38
Case [6].
27
II. THE CODED STATEMENTS POSTED ON THE DRAGOS PRIVATE
GROUPS DO NOT CONSTITUTE DIRECT AND PUBLIC INCITEMENT
TO GENOCIDE
34. In order to find the Defendant responsible for allegedly providing the means to incite
genocide, it must first be established that there are substantial grounds to believe that
the posts themselves constituted direct and public incitement. Therefore, if there are
no substantial grounds to believe that the posts rise to this level of criminality, then
the Defendant cannot be held criminally responsible.
35. The finding of the PTC that the posts constitute direct and public incitement is
materially affected by an error of law. This is for two reasons. First, direct and public
incitement is a mode of liability under the Statute requiring the commission of
genocide which has not occurred [A]. Second, the posts do not constitute direct and
public incitement to genocide as they were not direct, not public and not issued with
genocidal intent [B].
A. Direct and public incitement is a mode of liability under the Statute requiring
the commission of genocide, which has not occurred
36. The coded statements posted on the Dragos private groups do not constitute direct and
public incitement to genocide. This crime is a mode of liability under the Statute and
must be strictly interpreted as such [i]. Direct and public incitement to genocide, as a
mode of liability, requires the commission of genocide which has not occurred [ii].
i. Direct and public incitement is a mode of liability under the Statute
37. First, direct and public incitement to genocide is not listed as a distinct crime under
Article 5 of the Statute which governs crimes within the jurisdiction of the Court.
Therefore, direct and public incitement is not a standalone crime. Instead, the Statute
treats incitement as a form of individual criminal responsibility for the underlying
crime of genocide under Article 25(3)(e).39 Thus, under the Statute, convicting a
person of incitement to genocide means holding them responsible for the genocide
itself.40
39
Davis (2009) 245, 261.
40
Davis (2009), 261. citing Schabas (2000), 258.
28
38. Second, this is supported by the drafting history of the Statute which indicates that
direct and public incitement was deliberately placed under Article 25. In the 1996
Preparatory Documents, incitement was listed as a mode of “participation or
complicity in crimes”.41 To hold someone responsible for incitement, the draft
provision required that the person who was incited committed genocide.42 Throughout
the entire drafting process, incitement remained under the provisions governing the
modes of participation in crimes. This was accepted in the final version of the
Statute.43
39. Further, the 1996 ILC Draft Code, which formed an influential basis for the Statute,44
stipulates that direct and public incitement is limited to situations in which the incited
individual actually commits the crime.45
40. It should be noted that direct and public incitement is constructed differently under the
ICTR and ICTY Statutes. Direct and public incitement is listed as a distinct,
punishable crime within both instruments.46 This is not the case with the Rome Statute
and therefore direct and public incitement cannot be interpreted in a similar way
before the Court.
41. Third, under Article 21(3) of the Statute, the Court must ensure that the interpretation
and application of the Statute is consistent with internationally recognised human
rights. Article 19(2) ICCPR enshrines the right to freedom of expression. This right
includes the freedom to seek, receive, and impart information and ideas of all kinds
41
Article 5(d) Preparatory Documents 1996, 70.
42
Ibid.
43
Preparatory Committee on the Establishment of an ICC (1997), 348; Preparatory Committee on the
Establishment of an ICC (1998), 68.
44
Davis (2009) 245, 268; Cryer (2007) 121; Saland (1999) 198.
45
ILC Report (1996) 22.
46
Article 2(3) ICTR Statute; Article 4(3) ICTY Statute.
29
through any media of the individual’s choice.47 This right is essential for any
democratic society.48
42. Therefore, the right to freedom of expression must be interpreted broadly. The ECtHR
determined that the principle of freedom of expression is also applicable to
information and ideas that “offend, shock or disturb the State or any sector of the
population.”49 Therefore, interpreting direct and public incitement as an inchoate
offence would infringe upon this right. Censoring or prosecuting offensive speech
which has not in fact resulted in the commission of a criminal action would amount to
an arbitrary interference with the right to freedom of expression. The practice of
casting the suppression of critical media as a legitimate effort to fight incitement is
now distressingly common, so much so that it has become a major impediment to
independent journalism in many countries.50 This danger to freedom of expression
was at the heart of the US’ objection to the criminalisation of incitement during
discussions surrounding the Genocide Convention.51 Thus, interpreting incitement to
genocide as a mode of liability which requires the occurrence of genocide mitigates
this risk and protects freedom of expression.
43. For these reasons, direct and public incitement is not a distinct crime under the Statute
but rather as a mode of individual criminal responsibility for the underlying crime of
genocide. Therefore, in order to convict an individual for incitement to genocide,
genocide must have occurred.
ii. Direct and public incitement requires the commission of genocide which has
not occurred
44. Three elements alongside the criminal act must be satisfied to find substantial grounds
that genocide has occurred. First, the victim belonged to a protected group. Second,
the perpetrator intended to destroy, in whole or in part, that group. Third, the conduct
47
Article 19(2) ICCPR.
48
HRC General Comment 34 [2].
49
Handeyside merits [49]
50
Simon (2006) 2.
51
UN Doc. A/C.6/SR.84 (United States); UN Doc. A/C.6/SR.85 (United States).
30
occurred in the context of a manifest pattern of similar conduct directed against the
group. Whilst it is established that the Stareks represent an ethnic or religious group,
there is no context of a manifest pattern of similar conduct and, as will be discussed
below, the necessary mental element is not present.
45. The ICTY in Tolimir, when discussing the genocidal context, analysed the fact that
the killings followed a pattern. It specifically noted that the vast majority of the
killings occurred in an efficient and orderly manner with the involvement of several
layers of leadership.52 The Court endorsed this policy requirement in Al-Bashir.53 The
pattern must not be one of a few isolated crimes occurring over a period of years but
must be clear, rendering the threat against the existence of the targeted group as
concrete and real.54 Further, the Court found the existence of serious war crimes and
crimes against humanity that were carried out in a widespread and systematic manner
does not automatically lead to the conclusion that there exist reasonable grounds to
believe the perpetrators possessed genocidal intent.55
46. The Court clarified that this requirement of the contextual element is consistent with
the traditional understanding of genocide as the “crime of crimes”.56 Under Article
21(1)(a), the Court must apply the Statute and Elements first, giving effect to the
contextual element in the present case.
47. This policy requirement cannot be seen in the present case. The attacks against the
Stareks were sporadic: there was no implemented plan or policy and instead consists
of varying groups of individuals perpetrating random acts of violence. The attack of
16 June was carried out by only several dozen individuals with no evidence of a
coordinated plan or leadership provided.57
52
Tolimir trial 770.
53
Bashir warrant of arrest 4.
54
Ibid 124.
55
Ibid 193.
56
Ibid [133]
57
Case 11.
31
48. Therefore, there are no substantial grounds to believe that genocide has occurred as it
cannot be shown that Dragos wished to destroy the Stareks or possessed a genocidal
policy.
49. Direct and public incitement constitutes a mode of liability under the Statute and can
only be prosecuted if genocide has occurred. In any event, the Court must reverse the
decision of the PTC as the posts made between January 2018 and January 2020 do not
fulfil the requirements of direct and public incitement.
were not direct, not public and not issued with genocidal intent
50. There are no substantial grounds to believe that the coded statements posted on the
Dragos private groups constitute direct and public incitement to genocide. This is for
three reasons. First, the posts did not directly incite genocide as they did not
specifically provoke individuals to commit genocide [i]. Second, the posts did not
publicly incite genocide as they were not made in a public place nor before the
general public at lard [ii]. Three, the posts were not issued with genocidal intent [iii].
i. The posts did not directly incite genocide as they did not specifically provoke
individuals to commit genocide
51. The ICTR in Akayesu defined the direct element as implying that the incitement
assume a direct form and specifically provoke another to engage in a criminal act.58 It
must be more than a mere vague or indirect suggestion goes to constitute direct
incitement.59
52. However, in analysing this requirement, the AC in Nahimana found that direct
incitement to genocide assumes that the speech is a direct appeal to commit an act
referred to in Article 2(2) of the ICTR Statute.60 This article contains the definition
58
Akayesu trial 557.
59
Ibid.
60
Nahimana appeal [692].
32
and acts which constitute genocide.61 Thus, the accused can only be held accountable
for speech which directly calls for the commission of genocide.62
53. The critical question is whether the meaning was immediately appreciated by its
intended audience. In the Streicher case, the Court focused on Streicher’s ability
through his messages to create a certain mind-set in the population which rendered
mass crimes thinkable.63 In determining whether communications satisfy this
criterion, the ICTR considered it significant that genocide occurred. 64 That the media
intended to provoke others to commit genocide effect is evidenced in part by the fact
that genocide did occur.65 Further, the fact that the communications did have such
effect can be an indication that the receivers of the message understood them as direct
incitement to commit genocide.66
54. As established, no genocide has occurred in this case. Thus, the posts were not
understood by the audience as a call to commit genocide. Whilst violent acts may
have been committed against members of the Stareks, these do not equate to the
commission of genocide. The absence of genocidal attacks and the victory of Ayra
Gendry67 evidence that the general public did not share Dragos’ views nor possessed
the thinking that genocide was possible. Further, a new law has been enacted in
Solantis which does not label the actions genocide but rather “incite violence against
minority groups”.68
55. The PTC erred in finding there are substantial grounds to believe that the posts by
Dragos members constitute direct incitement. Direct incitement requires an individual
61
Article 2(2) ICTR Statute
62
63
Nuremberg Judgement [120].
64
Akayesu trial [673].
65
Nahimana trial [1029]
66
Nahimana appeal 1674.
67
Case [15].
68
Case [17].
33
to be specifically provoked to commit genocide which has not occurred in the present
case.
ii. The posts did not publicly incite genocide as they were not made in a public
place nor before the general public at large
56. The ILC defined ‘public incitement’ as “a call for criminal action to a number of
individuals in a public place or to members of the general public at large by such
means as the mass media, for example, radio or television.”69 The ICTR in Akayesu
found that the public element of incitement to commit genocide may be better
appreciated in light of two factors: the place where the incitement occurred and
whether or not the audience was selected or limited in attendance.70
57. The ACs in both Kalimanzira and Nahimana analysed these criteria and overturned
convictions for incitement on the basis that the public element was not satisfied. In
Nahimana, comments made to individuals at roadblocks were found to be more in line
with a “conversation”, “since only the individuals manning the roadblocks would
have been the recipients of the message and not the general public”.71 In Kalimanzira,
the Chamber found that the defendant’s actions did not involve any form of mass
communications such as public speech.72 Instead, they were directed at a small and
selected group of individuals.73
58. Similarly, in the present case the public element is not satisfied. To join the private
Statusphere groups, users have to explicitly seek out the specific group of which they
want to be a member.74 The group is completely private and its posts cannot be
viewed by the general public.75 A user cannot view any of the postings unless they
69
Akayesu trial 556; ILC Report (1996) 22.
70
71
Nahimana appeal 862.
72
Kalimanzira appeal 159.
73
Ibid 161.
74
Case [Appendix 1].
75
Case 7.
34
have specifically chosen to join the group. The display of advertisements for various
groups on the sites does not negate this fact. Therefore, membership of the group was
limited to those individuals who had specifically sought out the group and decided to
join. Further, the statements were intended only for the members of the group and not
the general public. Those who posted the statements could have done so through their
personal accounts which would then have been shared on the general site.76 However,
these individuals deliberately chose to upload these statements on the e-bulletin board
of the private group which can only be read by other members of the group.77
59. Therefore, the PTC erred in finding that there are substantial grounds to believe that
Dragos members publicly incite genocide. The private Dragos groups do not
constitute a public platform and the general public were not intended to be the
audience of the posts. Rather, the statements were posted in a private group to users
who had explicitly decided to join and be the recipients of such posts. These
statements were only intended for those members of the group.
iii. The posts were not issued with genocidal intent
60. For direct and public incitement, the perpetrator must desire to create by their actions
a particular state of mind necessary to commit such a crime in the minds of the person
they are so engaging.78 The perpetrator must also possess the specific intent required
by genocide: the intent to destroy the group, as such.79
61. As stated in the Bosnian Genocide case, neither the intent to render an area ‘ethnically
homogeneous’ nor the operation that may be carried out to implement such a policy,
amount to genocidal intent.80 It is not enough that the members of the group are
targeted because they belong to that group. That is discriminatory intent; something
76
Case [Appendix 1].
77
Ibid.
78
79
Article 6 Rome Statute.
80
Bosnia and Herzegovina v Serbia and Montenegro 190.
35
more is required.81 The ICTR in Nahimana found that the intention to promote
unfounded resentment and inflame ethnic tensions does not amount to genocidal
intent.82 It is also important to note that the fact that genocide occurred was analysed
as indicative of intent.83
62. Therefore, discriminatory intent cannot be equated to genocidal intent. Dragos

members have a right to freedom of expression under Article 19(2) of the ICCPR.
This right can be subject to restrictions.84 However, as seen in the case of Ross v
Canada, restrictions can only apply if it can be reasonably discerned that a causal link
exists between the expression of the author and the poisoned atmosphere.85 In this
case, the author of the comments was a teacher who shared his opinions with a group
of impressionable students, to which he represented a reliable source of learning and
authority.
63. Although Dragos is committed to the ethnic purity of Solantis,86 this cannot be
equated to genocidal intent. The use of derogatory terms like ‘widgets’ is only
evidence of discriminatory disdain towards the Stareks. Further, as private Dragos
groups were not a source of reliable information and learning, their members did not
contribute to the creation of a poisoned atmosphere. Therefore, the PTC erred in
finding that there are substantial grounds to believe that authors of the statements
possessed genocidal intent.
C. Conclusion
64. For these reasons, there are no substantial grounds to believe that the posts on the
Dragos private groups constitute direct and public incitement. They did not
specifically provoke others to commit genocide, were not made to the general public
81
Ibid 187.
82
Nahimana trial 1021.
83
Ibid [1029].
84
Article 20(2) ICCPR.
85
Malcolm Ross v Canada [11.5.]
86
Case [7].
36
and were not issued with genocidal intent. Therefore, the Court must reverse this
finding of the PTC as it is materially affected by an error of law.
III. THE DEFENDANT CANNOT BE HELD CRIMINALLY RESPONSIBLE FOR

INCITEMENT TO GENOCIDE OR PROVIDING THE MEANS TO
INCITE GENOCIDE
65. The finding of the PTC that the Defendant can be held criminally responsible for
incitement to genocide under Article 25(3)(e) is materially affected by an error of law
[A]. The finding of the PTC that the Defendant can be held criminally responsible for
providing the means to incite genocide under Article 25(3)(c) is materially affected by
an error of law [B].
A. The Defendant cannot be held criminally responsible for incitement to

genocide under Article 25(3)(e)
66. The finding of the PTC that the Defendant can be held criminally responsible for
incitement to genocide is materially affected by an error of law. This is for three
reasons. First, the Defendant did not directly incite genocide as she did not post any
statements on Statusphere and as the case of Nahimana can be distinguished [i].
Second, the Defendant did not publicly incite genocide as she did not issue any call to
criminal action in a public place or to the general public [ii]. Third, the Defendant did
not possess the required genocidal intent as her actions were undertaken to uphold the
freedom of expression of Statusphere users and her statements only demonstrate
discriminatory intent [iii].
i. The Defendant did not directly incite genocide as she did not post any
statements on Statusphere and the case of Nahimana can be distinguished
67. In Akayesu, the ICTR held that the ‘direct’ element of incitement to genocide implies
that an individual “specifically provokes another to engage in a criminal act”. 87 The
incitement has to be a direct appeal to commit one of the acts enumerated in Article
2(2) of the ICTR Statute.88
87
Akayesu trial [557]; ILC Report (1996) 22
88
37
68. In many of the incitement cases before the ICTR, the direct element was fulfilled as a
result of the accused holding speeches in which the commission of genocide was
encouraged. Akayesu was found guilty of direct and public incitement for his call to
the population to unite in order to eliminate “the sole enemy”, which the population
understood as urging them to kill the Tutsi.89 Kajelijeli was found criminally
responsible for direct incitement as he instructed the crowd to “exterminate the
Tutsis”.90 The Tribunal found that Bikindi’s exhortation on “the majority” not to
“spare anybody” constituted a direct call to destroy the Tutsi ethnic group. 91 Finally,
Ngirabatware telling the crowd to “kill Tutsis” led the Court to convict him of direct
incitement to commit genocide.92
69. In the present case, there is no evidence that the Defendant posted on Statusphere or
held a speech conveying a violent message that she delivered. She did not explicitly
provoke another to engage in a criminal act. Instead, the Defendant is alleged to have
directly incited genocide because of her failure to immediately remove the Dragos
statements and prevent their reposting.
70. Only in the Nahimana and Kambanda cases did the ICTR find that the ‘direct’
criterion was met by a failure to act on the part of the accused.
71. In Nahimana, Ngeze, founder and owner of a newspaper, was found guilty of direct
and public incitement to genocide for failing to prevent the publishing of articles that
incited genocide.93 Ngeze had direct control over the articles published in Kangura
that were considered to constitute direct and public incitement to genocide and he
acknowledged responsibility for the content of the publication.94 Ngeze also wrote
many inciting articles, ordering attacks against Tutsis and driving around with a
megaphone calling on the population to spread the message that the Tutsis should be
89
Akayesu trial [673-674].
90
Kajelijeli trial [856]; Kajelijeli appeal [105].
91
Bikindi trial [266], [422], [426].
92
Ngirabatware trial [1366], [1368], [1369].
93
Nahimana trial [1038].
94
Ibid; Nahimana appeal [886].
38
exterminated.95 As seen from these elements, the fact that, in addition to his failure to
act, Ngeze also committed substantial acts of incitement to genocide, weighed
significantly in his conviction.
72. Nahimana can be distinguished from the present case in three ways. First, contrary to
a newspaper editor who is in the position to scrutinise the content before it is
broadcast, the Defendant, as the CEO of a social network, has no control over posts
written by Statusphere users prior to their publication. Statusphere’s content monitors
can only review the substance of the posts after their publication. Second, as opposed
to Ngeze, the Defendant did take action in relation to the statements posted on
Statusphere. When she became aware of the alleged correlation between coded posts
on Dragos groups and attacks against Stareks, the Defendant consistently closed down
the offending groups.96 Third, as opposed to Ngeze, the Defendant herself did not
write any violent statements on Statusphere, nor did she voice calls for violence
against the Stareks.
73. Another case where failure to act was viewed as fulfilling the direct criterion is in
Kambanda. In that case, the ICTR convicted the Defendant for incitement to genocide
because, as Prime Minister of Rwanda at the time, he knew or should have known that
his subordinates had or were about to commit crimes, and had failed to prevent or
punish them.97 However, this case has limited value as the conviction of Kambanda
was not issued through an authoritative verdict, but was the result of a guilty plea
procedure.98
74. For these reasons, there are no substantial grounds to believe that the Defendant can
be held criminally responsible for direct incitement to genocide.
ii. The Defendant did not publicly incite genocide as she did not issue any call to
criminal action in a public place or to the general public
95
Nahimana trial [968], [1039]; Ibid [886].
96
Case [17].
97
Kambanda indictment [3.19].
98
Kambanda trial [5-7].
39
75. The ‘public’ element of incitement requires the call for criminal action to be
communicated to a number of individuals in a public place or to members of the
general public at large.99 This definition was repeatedly applied before the ICTR
where individuals who gave speeches at public meetings to crowds were found guilty
of public incitement to genocide.100
76. In the present case, the facts do not mention any statements that the Defendant posted
on her platform or any speech that she made calling for criminal action. Therefore, the
Defendant did not convey any violent message, let alone call for criminal action.
77. The PTC determined that it was the Defendant’s alleged failure to remove and block
the Dragos posts on Statusphere that can render her criminally responsible for direct
and public incitement to genocide.101 This amounts to considering an alleged omission
as sufficient to fulfil the public requirement. However, by applying the definition of
omission, this cannot be the case. An omission is described as “not doing
something”.102 Therefore, this definition contradicts the public criterion which
requires the performance of a criminal call made publicly by an individual. Article
25(3)(e) does not explicitly provide for liability by omission and the Court has never
interpreted it in that sense. Should the Court rely on the jurisprudence on
aiding/abetting by omission, it would have to determine the existence of a legal duty
to act.103 There was no legal duty to act binding on the Defendant in the present case.
78. Therefore, in the absence of any criminal call from the Defendant and the sole
reliance on an alleged omission on her part, there are no substantial grounds to believe
that the Defendant can be held responsible for public incitement to genocide.
99
Akayesu trial [556].
100
Akayesu trial [672-674], Niyitegeka trial [431-436]; Kajelijeli trial [851], [856-860]; Kalimanzira appeal
[44]; Ngirabatware trial [1355].
101
Case [21].
102
OLD, ‘omission’.
103
Brdanin appeal [274]; Oric appeal [43] ; Mrksic appeal [146] ; Sainovic appeal [1677]; Ntagerura appeal
[334].
40
iii. The Defendant did not possess the required genocidal intent as her actions
were undertaken to uphold the freedom of expression of Statusphere users
and as her statements only demonstrate discriminatory intent
79. To be convicted for direct and public incitement to genocide, the perpetrator must
possess genocidal intent, namely, the intention to destroy, in whole or in part, a
protected group, as such.104
80. In Stakic, the ICTY stressed that evidence demonstrating ethnic bias, however
reprehensible, suggests discriminatory intent but does not necessarily prove genocidal
intent.105 Additionally, in Brđanin, the TC found that “the Accused openly derided
and denigrated Bosnian Muslims and Bosnian Croats. Whilst these utterances strongly
suggest the Accused’s discriminatory intent, they do not allow for the conclusion that
the Accused harboured the intent to destroy the [group]”.106 The ICJ has further ruled
that discriminatory intent is not sufficient to amount to genocidal intent.107
81. In the present case, the Defendant did not possess genocidal intent when she decided
not to immediately remove the Dragos statements and prevent their reposting. This is
for four reasons.
82. First, the Defendant’s efforts to regulate the content of Dragos posts of 16 June and 6
November through Statusphere’s content monitors were hampered by the differences
in dialects. She could not promptly remove these statements because the content
monitors were unable to interpret the differences in the grammar, idioms and
vocabulary. This cannot be found to be an indication of genocidal intent.
83. Second, the Defendant acted with caution in order not to arbitrarily suppress
Statusphere users’ right to freedom of expression when examining coded posts. She
gave this right special weight in sensitive pre-election times where the right to
freedom of expression is of critical importance in democratic societies.108 The
104
Akayesu trial [560]; Nahimana appeal [677].
105
Stakic appeal [52]; Brdanin trial [986-987].
106
Brdanin trial [986 - 987].
107
Bosnian Genocide case [187].
108
HRC General Comment 34 [2].
41
Defendant’s alleged failure to immediately remove the statements was driven by
motivations other than the intention to destroy the Stareks.
84. Third, whenever the Defendant became aware of a possible link between posts on
Statusphere and the attacks perpetrated against Stareks, she shut down the groups in
their entirety. By doing so, she acted beyond Statusphere’s policy which only required
her to remove any posts advocating violence. 109 This response is irreconcilable with
genocidal intent.
85. Fourth, the statements made by the Defendant in her interviews on 17 June and 8
November demonstrate, at most, discriminatory intent. The Defendant expressed her
views on the Stareks only on two occasions and in telephone conversations. 110 Her
comments on the attacks were ethnically biased and reflected her disdain for the
Stareks, as well as her lack of political support for Ayra Gendry. 111 However, she
never expressed the desire to destroy the Stareks as such. These discriminatory
comments are insufficient to amount to genocidal intent.
86. For these reasons, the Defendant’s conduct and statements do not amount to the intent
to destroy the Stareks, as such. Therefore, there are no substantial grounds to believe
that the Defendant possessed genocidal intent.
B. The Defendant cannot be held criminally responsible for providing the means
to incite genocide under Article 25(3)(c) of the Rome Statute
87. The PTC’s finding that the Defendant can be held criminally responsible for
providing the means to incite genocide is materially affected by an error of law. This
is for two reasons. First, the Defendant did not provide the means to incite genocide
as her alleged failure to act did not substantially affect the commission of the crime
[i]. Second, the Defendant did not know that her conduct would assist the incitement
and did not aim to facilitate it as she removed the posts when she became aware of
their offensive nature [ii].
109
Case [Appendix 1].
110
Case [Appendix 1], [Appendix 2].
111
Case [Appendix 2].
42
i. The Defendant did not provide the means to incite genocide as her alleged
failure to act did not substantially affect the commission of the crime
88. Under Article 25(3)(c), an individual can be held criminally responsible if that person
aids, abets or otherwise assists in the commission or attempted commission of the
crime, including providing the means for its commission. In the present case, the PTC
based its finding under Article 25(3) on two facts: first, the Defendant allowing posts
by Dragos members and second, her alleged failure to prevent Dragos members from
reposting.
89. First, the finding of the PTC that the Defendant actively allowed Dragos members to
post inciting statements is materially affected by an error of fact. An error of fact
arises when a decision is exercised on a patently incorrect conclusion of fact.112
Instead of actively allowing inciting statements to be posted, the Defendant
implemented Statusphere’s community standards policy. This policy establishes that
posts are removed when there is a risk of physical harm or direct threat to public
safety.113 Whenever the Defendant became aware of an offensive post, she closed
down the corresponding group. Therefore, the Defendant did not purposefully allow
the offensive posts but on the contrary, willingly took reasonable precautions against
them.
90. Second, the Defendant cannot be held responsible for providing the means to incite
genocide by allegedly failing to prevent the reposting of similar statements. Failing to
act is by definition an omission. A person can only be held criminally responsible for
aiding and abetting by omission if the person has a legal duty to act in the
circumstances.114 As the owner of a private company, the Defendant does not have a
legal obligation to act under international law. She cannot be held criminally
responsible for an omission.
91. Further, the Defendant’s alleged omission does to reach the required threshold of
substantial effect. The ad hoc tribunals have found that an act of assistance must
112
Kony appeal admissibility [80].
113
Case [9].
114
Brdanin appeal [274]; Orić appeal [43]; Mrkšić appeal [82], [154]; Mladić trial [3567].
43
constitute a direct and substantial contribution to the commission of the crime.115 The
ICTY found that there was substantial contribution when “the criminal act most
probably would not have occurred in the same way had not someone acted in the role
that the accused in fact assumed.”116 In Bemba et al., the Court found that Article
25(3)(c) did not require the meeting of any specific threshold. Rather, it was sufficient
that the contribution had a mere causal effect on the commission of the crime.117
92. This is contrary to what the Court has ruled in previous decisions 118 and such
interpretation is inappropriate. As the Court held in Mbarushimana, “without some
threshold level of assistance, every landlord, every grocer, every power utility
provider, every secretary, every janitor or even every taxpayer who does anything
which contributes to a group committing international crimes could satisfy the
elements of liability for the infinitesimal contribution to the crimes committed”.119
Therefore, substantial contribution must remain the required test.
93. In the present case, the only association between the Defendant and the alleged crime
is by virtue of the fact that she is the owner of the foreign private company,
Statusphere. The Defendant’s alleged failure to remove the posts and block the groups
did not substantially contribute to the direct and public incitement as the alleged crime
most likely would have occurred regardless of her role. Her behaviour is too remote
from the alleged acts of Dragos. The PTC based their finding primarily on two
offensive posts within a sea of 10 million Statusphere users. Thus, this connection
does not reach the substantial effect threshold and does not give rise to the individual
criminal responsibility of the Defendant.
94. Therefore, the Defendant took the reasonable measures to mitigate the risk of any
harm, even though she did not have a legal duty to act. For these reasons, the PTC
115
Tadic trial 674, 688-692 ; Nahimana appeal [482]; Blagojević appeal [127] ; Ndindabahizi appeal [117];
Ntagerura appeal [370]; Blaškic appeal [45-48] ; Vasiljevic appeal [102].
116
Tadic trial [688].
117
Bemba et al. trial [93-94].
118
Ibid [279]; Lubanga trial [997]; Ruto confirmation [354].
119
Mbarushimana confirmation [277].
44
erred in finding that the Defendant can be prosecuted for providing the means to incite
genocide.
ii. The Defendant did not know that her conduct would assist the incitement and
did not aim to facilitate it as she removed the posts when she became
aware of their offensive nature
95. Under Article 25(3)(c) a person can be held responsible for aiding and abetting if they
act “for the purposes of facilitating the commission”. In Bemba et al., the Court
clarified that this specific purpose requirement means that the accessory must have
lent their assistance with the aim of facilitating the offence.120 Therefore, the intention
required for aiding and abetting is twofold: first, the aider and abettor must have
known that their conduct would assist perpetration of the crime and second, they
aimed to facilitate the crime. It is not sufficient that the accessory merely knows that
their conduct will assist the principal perpetrator in the commission of the offence.121
96. In the present case, there are no substantial grounds to believe that the Defendant
possesses this twofold intent. First, the Defendant did not know that certain posts
could have amounted to incitement to violence because the Statusphere content
monitors had difficulties interpreting the statements as they were written in a different
dialect.122 Second, there are no substantial grounds to believe that the Defendant
intended to facilitate the alleged crime committed by Dragos. The Defendant created
Statusphere to provide a free platform on which people could obtain information,
upload photographs and join groups to share hobbies and interests. 123 Dragos
attempted to abuse this purpose, yet, whenever an offensive statement was posted, it
was removed in line with Statusphere’s community standards policy.124 In doing so,
the Defendant had to balance this action alongside the right to freedom of
expression.125 To pre-emptively block Dragos groups before they had violated the
120
Bemba et al. trial [97].
121
Ibid.
122
Case [17].
123
Case [6] and Case [Appendix 1]
124
Case [9].
125
Article 19 ICCPR.
45
community standards policy would have had a serious impact upon the right to
freedom of expression. However, once the Defendant became aware of the offensive
nature of posts, she removed them.
97. Therefore, the Defendant did not know that her conduct would assist the perpetration
of incitement and did not aim to facilitate the crime. For these reasons, the PTC
materially erred in finding that the Defendant possessed the required intent for
providing the means to incitement to genocide under Article 25(3)(c).
C. Conclusion
98. For these reasons, there are no substantial grounds to believe that the Defendant
directly and publicly incited genocide. She did not post any offensive statements or
publicly call for criminal action, did not possess genocidal intent and Nahimana can
be distinguished.
99. For these reasons, there are no substantial grounds to believe that the Defendant
provided the means to incite genocide. She was not bound by a legal duty to act and
did not substantially contribute to the commission of the alleged crime. She did not
know that her conduct would assist the incitement and did not aim to facilitate it as,
when the meaning of the posts was discerned, she immediately removed and blocked
the groups.
100. Therefore, the Court must reverse the findings of the PTC as they are
materially affected by errors of law.
46
SUBMISSIONS
Wherefore in light of the issues raised, arguments advanced, and authorities cited, the
Defence counsel respectfully requests this Court to reverse the impugned decision of the PTC
and adjudge and declare that:
I. The Court may not exercise jurisdiction under Article 12(2)(a) of the Rome Statute.
II. The Dragos posts do not constitute direct and public incitement under Article 25(3)(e) of
the Rome Statute.
III. The Defendant cannot be held criminally responsible for inciting genocide under Article
25(3)(e) and for providing the means to incite genocide under Article 25(3)(c) of the
Rome Statute.
On behalf of the Defence
COUNSEL FOR THE DEFENCE
47
48

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ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

COUNSEL FOR THE DEFENSE

ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

THE APPEALS CHAMBER

Case before the International Criminal Court:

The Defence Counsel’s Submission in the Appeal from the Pre-Trial

LIST OF ABBREVIATIONS ................................................................................................. 6

INDEX OF AUTHORITIES ................................................................................................... 7

STATEMENT OF FACTS .................................................................................................... 15

SUMMARY OF ARGUMENTS ........................................................................................... 18

WRITTEN ARGUMENTS ................................................................................................... 19

STANDARD OF REVIEW ........................................................................................................ 19

I. THE COURT MAY NOT EXERCISE JURISDICTION UNDER ARTICLE

III. THE DEFENDANT CANNOT BE HELD CRIMINALLY RESPONSIBLE

A. The Defendant cannot be held criminally responsible for incitement to

Association Internationale de Droit Pénal, Istituto Superiore Internazionale di Scienze

ICC Preparatory Works, Preparatory Committee, 1996 <www.legal-tools.org/doc/51b8c4>

Preparatory Committee on the Establishment of an International Criminal Court (16 March –

Preparatory Committee on the Establishment of an International Criminal Court, Working

Preparatory Committee on the Establishment of an International Criminal Court, Working

Report of the Preparatory Committee on the Establishment of an International Criminal Court

Report of the Preparatory Committee on the Establishment of an International Criminal

Report of the Preparatory Committee on the Establishment of an International Criminal

Cases - International Criminal Court

Prosecutor v Mbarushimana (Decision on the confirmation of charges) ICC-01/04-01/10 (16

Prosecutor v Ruto et al. (Decision on the Confirmation of Charges Pursuant to Article

Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar,

Cases - International Criminal Tribunal for the former Yugoslavia

Prosecutor v Blagojević and Jokic (Judgement) IT-02-60-A (9 May 2007) [Blagojević

Prosecutor v Bradnin (Trial Judgment) IT-99-36-7 (1 September 2004) [Brdanin trial]...... 46

Prosecutor v Šainović.(Appeal Judgment) IT-05-87 (23 January 2014) [Šainović appeal];.. 45

Prosecutor v Tadić (Judgment) IT-94-1-T (7 May 1997) [Tadić trial] .................................. 49

Cases - International Criminal Tribunal for Rawanda

Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) [Akayesu trial] . passim

Prosecutor v Bikindi (Trial Judgment) ICTR-01-72-T (2 December 2008) [Bikindi trial].... 42

Prosecutor v Kajelijeli (Judgment and Sentence) ICTR-98-44A-T (1 December 2003)

Prosecutor v Kalimanzira (Appeal Judgement) ICTR-05-88-A (20 October 2010)

Prosecutor v Kambanda (Indictment) ICTR-97-23-DP (16 October 1997) [Kambanda

Prosecutor v Kambanda (Judgement) ICTR-97-23-S (4 September 1998) [Kambanda trial]

Prosecutor v Ndindabahizi (Judgment) ICTR-01-71-A (16 January 2007) [Ndindabahizi

Prosecutor v Ngirabatware (Judgement and Sentence) ICTR-99-54-T (20 December 2012)

Prosecutor v Ntagerura et al. (Appeal Judgment) ICTR-99-46-A (7 July 2006) [Ntagerura

Cases - International Military Tribunal

Cases - Other Courts

Handeyside v United Kingdom (Merits) ECHR AP No.5493/72 (7 December 1976)

Malcolm Ross v Canada CCPR/C/70/D/736/1997, UN Human Rights Committee (HRC), 26

United Nations Documents

Statute of the International Criminal Tribunal for Rwanda (adopted 8 November

UN Doc. A/C.6/SR.85 (United States). ................................................................................... 34

Anne-Laure Chaumette, ‘International Criminal Responsibility of Individuals in Case of

M. Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives

Oxford Learners’ Dictionary Online (OUP, 2020), ‘omission’

5. On 16 June 2019, Dragos members perpetrated an attack against Stareks. That

I. THE COURT MAY NOT EXERCISE JURISDICTION UNDER ARTICLE

B. The conduct of the Defendant occurred in Valaria, a non-State Party to the

i. Direct and public incitement is a mode of liability under the Statute

iii. The posts were not issued with genocidal intent

62. Therefore, discriminatory intent cannot be equated to genocidal intent. Dragos