1

INTERNATIONAL CRIMINAL LAW MOOT COURT COMPETITION,

2014

IN THE INTERNATIONAL CRIMINAL COURT

AT
THE HAGUE, NETHERLANDS

THE PROSECUTOR
V.
LAMA SUKI

ON SUBMISSION TO THE INTERNATIONAL CRIMINAL COURT

MEMORIAL for the PROSECUTION

ALS 2 / M 26

TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................................. 3
LIST OF ABBREVIATIONS....................................................................................................... 4
LIST OF AUTHORITIES........................................................................................................... .5
STATEMENT OF FACTS.......................................................................................................... .8
STATEMENT OF JURISDICTION......................................................................................... 10
ISSUES........................................................................................................................................ 10
SUMMARY OF ARGUEMENTS..................................................................... 11
WRITTEN ARGUEMENTS..................................................................................................... 12
1. The Charges against Lama Suki Constitute a Cognizable case against humanity under

the Statute
1.1 Lama Suki is guilty of the crime of incitement to genocide. ... 12
1.2 Lama Suki is guilty of the war crime of inhuman treatment and unlawful
confinement ...

13

1.2.1 Individual Criminal Responsibility of Lama Suki. 13

1.3 Responsibility of the Commander and the actions of the Noobian army in Sutas
against civilian population and directing use of prohibited weapons . 16
(i)

Existence of a superior-subordinate relationship 17

(ii)

Superior knew or had reason to know. 17

(iii)

Failure to act ... 17

2. The customary international law doctrine of Head of State Immunity does not
precludes zydan from arresting and surrendering Lama Suki to the ICC.
2.1 No immunity under customary international law when charged with
international crimes ..18
2.2 Obligation of the state party to arrest and surrender...22
SUBMISSION/PRAYER...............................................................................................25

LIST OF ABBREVIATIONS
ICC

International Criminal Court

DPP

Dij Peoples Party

ICTR

International Criminal Tribunal for Rwanda

HLF

Hist Liberation Front

GC

Geneva Convention

ICTY

International Criminal Tribunal for the former Yugoslavia

U.N-

United Nations

ICJ-

International Court of Justice

PTC-

Pre Trial Chamber

LJ

Law Journal

AJIL

American Journal of International Law

EJIL

European Journal of International Law

ILDC

International Law in Domestic Courts

LIST OF AUTHORITIES
ARTICLES
1. Andrea Bianchi, Immunity versus Human Right: The Pinochet Case, (10 Eur. J. Intl L 237,
245(1999)
2. See Antonio cassese; when may senior state officials be tried for international crimes? Some
comments on the Congo v Belgium case(13, EJIL 4 853-875(2002))
3. C. Jalloh, Immunity from Prosecution for International Crimes: The Case of Charles Taylor at
the Special Court for Sierra Leone,( American Society of International Law 2004),
4. Dapo Akande, The legal nature of security council referrals to the ICC and its impact on Al
Bashirs Immunities, (Journal of International Criminal Justice 7 2009)
5. Dapo Akande, International Law Immunities and the International Criminal Court, (98
American Journal of International Law 2004)
6. E Oberg, The legal effects of the resolutions of the UN security council and General Assembly
in the jurisprudence of the ICJ,(16,EJIL, 2005)
7. Frangi, The internationalized non international armed conflict in Lebanon, 1975-90: An
Introduction to Confligology, (Cap U. L. Rev. 965 ((1993))
8. Macleod Case in Robert Jennings, The Caroline and Macleod Cases (AJIL,1938)
9. Masaya Uchino, Prosecuting Heads of State: Evolving Questions of Venue - Where, How, and
Why?, (34 Hastings Int'l & Comp. L. Rev. 341, 344 (2011))
10. Michael A. Tunks, Diplomats or Defendants? Defining the Future of Head-of-State Immunity,
(52 Duke L.J. 651 656 (2002))
11. Salvatore Zappala, Do Heads of State in Office Enjoy Immunity from Jurisdiction for
International Crimes?, (12 EJIL 595, 601 (2001))
12. Wallenstein, Punishing Words: An Analysis of the Necessity of the Element of Causation in
Prosecutions for Incitement to Genocide, (54 STAN. L.R. 351, 393 (2001))
BOOKS
1. Blacks Law Dictionary (Sixth Edition, 1990)
2. Brownlie, Principles of Public International Law (Fifth Edition, 1998)
3. Claire de Than and Edwin Shorts, International Criminal Law and Human Rights 1st
edition (2003)

CASES
1.

Bosnia and Herzegovina v Serbia & Montenegro), Judgment of 26 February 2007, General
List No 91.

2. Corfu Channel Case (I.C.J. Reports 1949),

3. Ex Parte Pinochet Case No. 3 (1999) 48 ICLQ 958
4. Ferrini v Federal Republic of Germany, Italian Court of Cassation, 11 March 2004, 128 ILR
659.
5. Glimmerveen & Hagenbeek v. The Netherlands, 18 Eur. Comm'n H.R. Dec. &
Rep. 187 (1979)
6. ICJ Arrest Warrant Case (Belgium v Democratic Republic of Congo) 11 february 2002
7. In re Goering at Nuremberg Trials (1946), International Law Reports 203, 221 (1951) (Intl
Mil. Trib.)Legality of the Threat or Use of Nuclear Weapons: Advisory Opinion, ICJ Reports
(1996) (the Nuclear Weapons, case),
8. Lozano (Mario Luiz) v Italy, Case No 31171/2008; ILDC 1085 (IT 2008) 24 July 2008
9. Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgement, (Sept. 2, 1998)
10. Prosecutor v. Andre Imanishimwe, Case No.ICTR-99-46-T (Trial Chamber), May 17 1994
11. `Prosecutor v. Blaskic, Case No. IT-95-14, Judgement, (Mar. 3, 2000)
12. Prosecutor v. Delalic, Case No. IT-96-21-T (Trial Chamber) November 16, 1998
13.
14. Prosecutor v Eliezer Niyitegeka , Case No. ICTR-96-14-A, (9 July 2004)
15. Prosecutor v. Germain Katanga and Mathieu, ICC-01/04-01/07, (30th September, 2009)
16. Prosecutor v. Ignace Bagilishema (Trial Chamber) ICTR-95-1A (June 7, 2001)
17. Prosecutor v. Kambanda, ICTR (Trial Chamber), judgment of 4 September 1999,
18. Prosecutor v. Kayishema and Ruzindana, ICTR (Trial Chamber), (21 May 1999)
19. Prosecutor v. Kordic, Case No. IT-95-14/2, Judgment (Feb 26, 2001)
20. Prosecutor v.Musema,(Trial chamber 27, January, 2000)
21. Prosecutor v. Omar Al Bashir Case No.: ICC-02/05- (4 March 2009)
22. Prosecutor v. Radovan Kardazic Case No. IT-95-5/18-PT
23. Prosecutor v. Semanza (Trial Chamber) ICTR-97-20-T (15 May 20003
24. Prosecutor v Sylvestre Mudacumura, ICC-01/04-01/12
25. Prosecutor v. Tadic IT-941 (Opinion and Judgment) (7 May 1997)
26. United States v. Von Leeb Nuremberg 1948 - law reports of trials of war criminals, the United
Nations War Crimes Commission, Volume XII, London, HMSO,1949

STATUTES AND CONVENTIONS

1. Rome Statute of the International Criminal Court
2. 1948 Convention on the Prevention and Punishment of the Crime of Genocide, T.S. No. 1021,
277 (1951)
3. Statute of the International Criminal Court for the former Yugoslavia
4. Statute of the International Criminal Tribunal for Rwanda
5. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78
U.N.T.S. 277 )
6. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
7. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12
August 1949
8. Convention on the prohibition of the development, production and stock piling of bacterio
logical and toxin weapons and on their destruction
9. Vienna convention on Diplomatic relations, April 18, 1961, 500 U.N.T.S. 9
10. Vienna Convention on Consular Relations art. 10, April 24, 1963, 596 U.N.T.S. 261
11. Convention on Special Missions art. 21, December 8, 1969, 1400 U.N.T.S. 231
12. Statute of the Special Court of Sierra Leon art.6(2), S.C. Res. 1315, U.N. SCOR, 4054th mtg.,
U.N. Doc. S/RES/1270 (1999)
13. Charter of the International Military Tribunal. London, 8 August 1945 (Aug. 8, 1945)

OTHER AUTHORITIES
1. Al Bashir Milanovic to Heller, Opinio Juris International Law Blog, 11.7.2008, response 6,
available at http://opiniojuris.org/2008/07/11/icc-prosecutor-to-chargesudans-presidentwith-genocide
2. Von Michiel Blommestijn, Dr. Cedric Ryngaert, Utrecht Exploring the Obligations for
States to Act upon the ICCs Arrest Warrant for Omar Al-Bashir A Legal Conflict between
the Duty to Arrest and the Customary Status of Head of State Immunity available at
http://www.zis online.com/dat/artikel/2010_6_461.pdf
3. Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970) , ICJ

Advisory Opinion available at

http://www.icjcij.org/docket/?p1=3&p2=4&k=a7&case=53&code=nam&p3=4

STATEMENT OF FACTS
Lama Suki had become the Prime Minister of Nooba in the first general elections, held in 2009
ousting the Noobian Nationalist Party. He belonged to the Dij Peoples Party which always
advocated Nooba to be a Dij only country albeit the provisions of the constitution which states
Nooba to be a secular country. On 24th October 2009, Lama Suki in his victory speech condemned
the efforts of the previous government in dealing with the HLF, a rebel group formed in 2000, under
the leadership of Luke Skittle which favoured Sutas; a Hist majority country on the North-west of
Nooba, accession to Kimatan which was a rival to Nooba. He also called upon the Dijs to join hands
to get rid of Hists from the country. This subsequently led to increase in hostility between the two
countries and Kimatan Government increasing its activities around the border. On 25th February
2010, a series of bombings took place throughout Sutas each targeting a police station, a security
installations manned by Noobian officers and Dij residential areas***
In response to the widespread violence by the HLF, Lama Suki deployed 600,000 army personnel in
Sutas equipped with emergency powers, allowing military to curtail liberties. This led to constant
harassment of the civilian population, with constant searches of their persons and homes with
warrants, elderly people and women being subject to ill treatment by the forces. The army personnel
arrested ten young civilians of the Hist religion under the suspicion of their involvement in
exploding bombs at one of the security posts in Sutas. The detainees were humiliated, their hands
and legs were tied and they were kept in solitary confinement for endless hours without food and
water. According to the Amnesty International report, the detainees were choked to death using
chlorine and chloropicrin.
A coalition of international human rights organisations including Human Rights Watch, the
International Federation for Human Rights, and the Amnesty International reported use of heavy
arms, explosive and chemical weapons in populated areas with no discrimination between civilians
and army. Various reports claim that the Nooba troops have been engaged in widespread
humanitarian abuses and have engaged in extrajudicial killings. The International Commission of
Jurist reported that a Nooba Army Unit is alleged to have forcefully entered in the houses of Hists
people and raped 30 to 100 women aged between 13 and 70. The Government's inability to protect
the people from both its own troops and the rebel forces led to the erosion of support for the
Government.
Nooba is a member of the United Nations and a party to the Geneva Conventions of 1949, the
Convention on the Prevention and Punishment of the Crime of Genocide, 1948, the International
8

Convention on Civil and Political Rights, 1966 and other International Humanitarian Law
Conventions which prohibit the use of certain weapons during the hostilities. Nooba though is not a
signatory and thus not a state party to the Rome Statute of the International Criminal Court, 1998.
On 29 November 2013 the United Nations Security Council convened an emergency meeting.
Acting under Chapter VII of the United Nations Charter and Article 13 (b) of Rome Statute, the
Council vide Resolution 2019 referred the situation since 24 October 2009 to the International
Criminal Court (ICC) and urged all states to co-operate with the Court, whether or not it was party
to the Rome Statute. Nooba refused to recognise the courts jurisdiction.
On 15 January 2014, the Prosecutor submitted to the Pre-Trial Chamber for an arrest warrant for
Colonel Jingo Crackle and Lama Suki pursuant to Article 58 of the Statute. The Prosecutors
application was based on the charges of incitement to Genocide under Article 6 and Article 25 (3)
(e) and of war crime of inhuman treatment and unlawful confinement of ten young civilian of
Hist religion in Sutas under Article 8(2)(a)(ii) and (vii) of the Statute. He was also charged under
Article 28 Responsibility of the Commander for actions of the Noobian army in Sutas against
civilian population, and also under Article 8 (2) (b) (xx) of the International Criminal Court.
On 22 January 2014 an arrest warrant was issued against Lama Suki by the Pre-trial Chamber which
also requested all other state parties to the Rome Statute to cooperate within their jurisdiction in the
arrest and surrender of Lama Suki. Then on 1st of February 2014, Lama Suki travelled to Zydan to
participate in an annual summit of group seven regional states. Zydan although a state party to the
Rome statute did not arrest Lama Suki, taking the position that doing so would violate his Head of
State of Immunity. ***

The issues arising in this case are whether the charges against Lama Suki constitute a cognisable
case against humanity under the statute; and whether the customary international law doctrine of
head of state immunity precludes Zydan from arresting and surrendering Lama Suki to the ICC.

Hence the present matter before this Honorable Court

STATEMENT OF JURISDICTION
The Honble International Criminal Court can exercise its jurisdiction under Article 5 of the Rome
Statute, which has been invoked subsequent to the proceedings in pursuance of Article 13(b) of the
Rome Statute initiated by the Prosecutor under Article 15 of the Rome Statute. The Prosecutor most
humbly and respectfully submits to the jurisdiction of the Honble International Criminal Court.

ISSUES

1. WHETHER THE CHARGES AGAINST LAMA SUKI CONSTITUTE A COGNISABLE

CASE AGAINST HUMANITY UNDER THE STATUTE: AND

2. WHETHER THE CUSTOMARY INTERNATIONAL LAW DOCTRINE OF HEAD OF

STATE

IMMUNITY

PRECLUDES

ZYDAN

SURRENDERING LAMA SUKI TO THE ICC.

10

FROM

ARRESTING

AND

SUMMARY OF ARGUEMENTS
1. THE CHARGES AGAINST LAMA SUKI CONSTITUTE A COGNIZABLE CASE
AGAINST HUMANITY UNDER THE STATUE
Directly and publicly inciting others to commit genocide amounts to the crime of incitement to
genocide. To publically advocate the killing of a particular group constitutes this crime. Lama Suki
after becoming the Prime Minister of Nooba, called upon the Dij people to join hands to get rid of
Hists from the country. Inhuman or degrading treatment is prohibited under human rights treaties.
The Army personnel arrested ten young civilians of the Hist religion under the suspicion of their
involvement in exploding bombs at one of the security posts in Sutas. The detainees were
humiliated, their hands and legs were tied, and they were kept in solitary confinement. Lama Suki
being the Prime Minister of Nooba was the superior and had the full control of Noobian Army, who
directed attack against the civilian population of the Sutas. Also, individual criminal responsibility
exists for the human right abuses by the army. In the backdrop of existing international armed
conflict, Kimatan helping the rebel group of in Nooba, the guilt under war crimes charges of
inhumane treatment and unlawful confinement is duly proved since Lama Suki and his army
inflicted pain and suffering on the Hist civilians protected under international law and continued to
confine them deliberately. The existence of command responsibility arises from the fact that there
indeed was a superior subordinate relationship Lama Suki and the army which functioned as per
orders of Lama, whose failure to act as a responsible superior further aggravated the situation in the
Sutas.
2.

THE CUSTOMARY INTERNATIONAL LAW DOCTRINE OF HEAD OF STATE

IMMUNITY DOES NOT PRECLUDE ZYDAN FROM ARRESTING AND
SURRENDERING LAMA SUKI TO THE ICC.

A head of state has no immunity for an international crime, not because the crime revokes his
functional immunity, but because no distinction exists between private and official for international
crimes. In addition, a head of state does not legitimately act on behalf of his state when he commits
an international crime because such an act does not further any of the states legal objectives. The
activities of the Noobian army directed by Lama Suki in Sutas escalated the violence between the
HLF and the Noobian Army. The Statue under Article 27 highlights the irrelevance of official
capacity in respect of the commission of international crimes. Zydan, being a state party to the ICC
was under an obligation to cooperate with the ICC in punishing those charged with international
crimes. In the present case, when Prime Minister of Nooba travels to Zydan, a state party to the
ICC statute. Zydan was bound to arrest, Lama Suki as he was wanted by the Court. The effect of the
Security Council referral of the situation to the ICC increases the scope of Lamas arrest further.
11

WRITTEN ARGUEMENTS

1. THE CHARGES AGAINST LAMA SUKI CONSTITUTE A COGNIZABLE CASE

AGAINST HUMANITY UNDER THE STATUTE
Lama Suki is charged with the following crimes: (i) incitement to genocide1 (ii) war crime of
inhuman treatment and unlawful confinement2 (iii) Responsibility of the Commander3 and
directing use of prohibited weapons4. The ICC statute covers all the crimes of Genocide and
War crimes under the jurisdiction of the ICC5. In the present matter, the Noobian Army under
the command of Prime Minister Lama Suki killed, inhumanly treated, detained and used
prohibited weapons against the Hist population in Sutas, these acts have amounted to the crimes
he is charged with.
1.1 Lama Suki is guilty of crime of Incitement to Genocide
The crime of genocide would be constituted if the perpetrator with the intent to destroy a
religious group, kills or causes serious bodily or mental harm or deliberately inflicts
conditions of life to bring about its destruction6 . The Hists in Nooba were a religious
minority group and were targeted for genocide. Lama Suki deployed 600,000 army
personnel in Sutas and the civil liberties were curtailed.7 Acts of harassment, inflicted severe
pain and rapes were committed to the Hist civilians by the Noobian army at Sutas8. They
were committed against the Hists with the specific intention to destroy the group. The
Directly and publicly inciting others to commit genocide amounts to the crime of incitement
to genocide9.To publically advocate the killing of a particular group constitutes this crime.10
Lama Suki after becoming the Prime Minister of Nooba, in his victory speech called upon
the Dij people to join hands to get rid of Hists from the country11.Genocide is a crime of
such atrocity that even the act of inciting others to commit it is punished under international

Article 6 and Artcile 25(3)(e) of the Rome Statute of the International Criminal Court (ICC Statute hereinafter)
Article 8(2)(a)(ii) and (vii) of the ICC Statute
3
Article 28 of the ICC Statute
4
Article 8(2)(b)(xx) of the ICC Statute
5
Article 5(1) and Article 25(3)(e) of the ICC Statute
6
Article 6 of the ICC Statute
7
Proposition 7
8
Proposition 7,8
9
Article 25(3)(e)
10
Prosecutor v Eliezer Niyitegeka , Case No. ICTR-96-14-A, (9 July 2004) a conviction of incitement to commit
genocide was secured for telling people to go to work when the context indicated that this was an euphemism for
killing Tutsis.
2

11

Proposition 5

12

law12 Furthermore, the incitement must take place and be carried out with the intent to
destroy, in whole or in part, certain individuals, for the simple reason that they belong to a
national, racial, religious, or ethnic group.13Stated otherwise, the perpetrator must perform
the actus reus, with the requisite mens rea14. The fact that Lama Suki was a member of the
DPP, which advocated Nooba to be a Dij only country15, establishes the mens rea for the
crime. The victory speech of Lama Suki was direct and public, that it directly attacked the
religious Hist group and could easily be grasped by the listeners, the ICTR affirmed that
direct and public incitement to genocide (unlike the crime of genocide) does not require
proof of actual causation,16incitement only requires likely (but not necessarily actual)
causation.17The victory speech of Lama Suki cannot be considered justified under free
expressions, and its prohibition is justified if allowing such expression "would contribute to
the destruction of [others'] rights and freedoms."18
1.2 Lama Suki is guilty of War crime of inhuman treatment and unlawful confinement
International law condemns war crimes as violations of the laws of war by a military or
civilian person.19 They are serious violations of customary or treaty rules and the ICC statute
make the offences of inhuman treatment20 and unlawful confinement21 war crimes.
1.2.1 Individual criminal responsibility of Lama Suki
Lama Suki must be held responsible for the acts of the Noobian army in which ten young civilians
were arrested under suspicion and were humiliated22. He is to be found liable under in the Article
25(3)(b) of the ICC Statute, that he Ordered the commission of war crimes he is charged with which in fact
12

1948 Convention on the Prevention and Punishment of the Crime of Genocide, T.S. No. 1021, 277 (1951); Report
of the International Law Commission on the Work of its 48th Session, Draft Code of Crimes Against Peace and
Security of Mankind, U.N.GAOR, 51st Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996) Rome Statute of the
International Criminal Court, art. 6, U.N. Doc. A/CONF.183/9, 37 I.L.M. 999;ICTY Statute, art. 4(3)(c), SC Res. 827,
3217th Mtg., U.N. Doc. S/RES/827 (1993) ; ICTR Statute art. 2(3)(c), SC Res. 955, 3453d Mtg., UN Doc. S/RES/955
(1994) [hereinafter Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S.
277 )
13
Schabas, Hate Speech in Rwanda: Road to Genocide, 46 MCGILL L.J. 141, 149 (2000)
14
Wallenstein, Punishing Words: An Analysis of the Necessity of the Element of Causation in Prosecutions for
Incitement to Genocide, 54 STAN. L.R. 351, 393 (2001).
15
Proposition 5
16
Prosecutor v Akaseyu Case No. ICTR-96-4-T (Trial Chamber), 2 September 1998, 556. The Tribunal was referring
to theInternational Law Commissions Commentary on its Draft Code of Crimes Against the Peace and Security
of Mankind in Report of the International Law Commission on the work of its 48th session, 6 May-26 July
1996 to the General Assembly, 51 U.N. ORGA Supp. (No. 10), U.N. Doc. A/51/10 (1996), Article 2(3)(f),
p. 26.
17
See Media Case 1 1015;. This element aside, the inquiry with regard to mass media is the same for both crimes: the
mens rea requirement is always the same; mass media is by definition "public"; and the "direct" prong, defined in terms
of audience reception, see Media Case i Ioi (quoting Akayesu 557-58), could hardly make a difference
18
Glimmerveen & Hagenbeek v. The Netherlands, 18 Eur. Comm'n H.R. Dec. & Rep. 187 (1979)
19
Michael Reisman, The Laws of War: A Comprehensive Collection of Primary Documents on International
Laws Governing Armed Conflicts, Vintage Books (1994), p.317
20
Article 8(2)(a)(ii)
21
Article 8(2)(a)(vii)
22
Proposition 7

13

occurred.23 , Lama Suki deployed the 600,000 army personnel equipped with emergency powers to curtail
civil liberties in response the violence by HLF in Sutas. These emergency provisions gave the Noobian army
unbridled power to arrest detain, constantly search Hist persons and their homes with warrants, ill-treat
elderly people and women.

The facts establish that Lama Suki being the Prime Minister and the Minister of defence had
substantial effect on the armys actions. Therefore, Lama Suki did have the requisite actus reus for
the responsibility. As for mens rea for establishing liability for ordering if a person has intent
where, in relation to a consequence, that person means to cause that consequence or is aware that it
will occur in the ordinary course of events.24 Or if the person is at least aware that the crime will be
committed in the ordinary course of events25 Since, Lama Suki had the knowledge that the alleged
crimes could occur due to the actions of the army, because they were equipped with emergency
powers to curtail civil liberties. So, the mens rea is also established.
Inhuman or degrading treatment is prohibited under human rights treaties 26 . To constitute the war
crime of inhuman treatment the following elements are needed to be fulfilled:
(i) The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons;
The civil liberties were curtailed by the Noobian Army in Sutas. The Army personnel arrested ten
young civilians of the Hist religion under the suspicion of their involvement in exploding bombs at
one of the security posts in Sutas27. The detainees were humiliated, their hands and legs were tied,
and they were kept in solitary confinement for endless hours without food and water28. Amnesty
International reported that the detainees were choked to death29. The humiliating or degrading
treatment is also included in the inhuman treatment of war crimes.30

(ii) Such person or persons were protected under one or more of the Geneva Conventions of 1949
(iii) The perpetrator was aware of the factual circumstances that established that protected status;
(iv) The conduct took place in the context of and was associated with an international armed
conflict; (v) The perpetrator was aware of factual circumstances that established the existence of an
armed conflict.

23

Article 25(3)(b) of the ICC Statute Orders, solicits or induces the commission of such a crime which in fact occurs
or is attempted
24
Article 30 of the ICC statute
25
ICC, Mudacumura, Decision on the Prosecutor's Application under Art.58, 63
26
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
27
Proposition 7
28
Proposition 7
29
Proposition 7
30
Musema, (Trial Chamber), January 27, 2000, 285

14

To constitute the war crime of unlawful confinement these elements are needed to be fulfilled
(i) The perpetrator confined or continued to confine one or more persons to a certain location
The army personnel arrested ten young civilians of the Hist religion under the suspicion of their
involvement in exploding bombs at one of the security posts in Sutas. The detained were kept in
solitary confinement for endless hours without food and water.
(ii) Such person or persons were protected under one or more of the Geneva Conventions of
1949; (iii) The perpetrator was aware of the factual circumstances that established that protected
status; (iv) The conduct took place in the context of and was associated with an international armed
conflict; (v) The perpetrator was aware of factual circumstances that established the existence of an
armed conflict
For both of these war crimes the remaining elements are fulfilled.
Such person or persons were protected under one or more of the Geneva Conventions of 1949
These ten young civilians were protected under the Geneva Conventions of 194931.[B]oth Common
Article 3 and Additional Protocol II protect persons not taking an active part in the hostilities 32
The perpetrator was aware of the factual circumstances that established that protected status;
The perpetrator, in hostile situations, need not make a value judgment as to the protected status of
civilians.33 Lama Suki knew there were civilians at Sutas and HLF was working among those
civilians. The ten young civilians were held solely under suspicion and there is no evidence to prove
that these young civilians were actually involved in the bombings.
Article 50(1) of the AP I defines civilians as persons who do not belong to one of the categories
referred to in Article 4 of the Third Geneva Convention (GC III) which are: members of the armed
forces of a Party to the conflict, members of other militias who carry arms openly and members of
armed forces which have professed allegiance to adversary. 34 GC IV grants protection to every
person except for certain categories, such as persons engaged in hostilities or those detained as a
spy or saboteur.35
The conduct took place in the context of and was associated with an international armed conflict
An International Armed conflict exists when there is protracted armed violence between two States.
A non-international armed conflict may rise to the level of international armed conflict when a
foreign State effectively controls the opposing faction to the conflict, or one of the parties to the
armed conflict act on behalf of a foreign state.36 In the present matter, although the conflict was
31

Geneva Convention I,II,III and IV

Semanza, (Trial Chamber), May 15, 2003, 363-366
33
The Prosecutor v. Germain Katanga and Mathieu, ICC-01/04-01/07, (30th September, 2009)
34
Art. 4, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949
35
Art. 4, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949
36
Frangi, The internationalized non international armed conflict in Lebanon, 1975-90: An Introduction to Confligology,
(1993) Cap U. L. Rev. 965, p. 1038.; See Kordic 66; See also Tadic 84
32

15

primarily between the state of Nooba and the HLF rebels, but the fact that there was flow of
weapons into Sutas from Kimatan was constantly helping the rebel groups enabling them to do
greater damage37; also, the Colonel of the Kimatan army was the protector of the leader of the
HLF38. The fact show that Kimatan was the third state which was supporting the rebels in Sutas.
Thus, making the non-international conflict internationalised.
The perpetrator was aware of factual circumstances that established the existence of an armed
conflict
In the present case, Lama Suki had all the requisite knowledge of the existence of the armed
conflict. The struggle of Hists under HLF for secession was going on since 2000.39 There have been
protracted and sustained attacks on government properties and residential areas ever since 2000.
Since he controlled all the aspects of Noobian governance, he knew or ought to have known about
these attacks which outweighs the assumption of lack of communication if alleged. Also, his
response to the violence of HLF by deploying 600,00 military personnel in Sutas equipped with
emergency powers40 shows that he had the intention to engage in the conduct as per Article 30(2)(a)
of the ICC statute. Thus, Lama Suki possessed the requisite mens rea under the final element for the
war crimes.
1.3 Responsibility of the Commander and the actions of the Noobian army in Sutas
against civilian population and directing use of prohibited weapons
In the violence between HLF and the Noobian army, the use of prohibited weapons against the
civilian population took place. While HLF readily used the prohibited weapons, the Noobian army
also followed suit, to respond to the violence. The use of prohibited weapons which are of a nature
to cause serious injury is recognized as a war crime41 under international humanitarian law. A
coalition of human rights organisations including Human Rights Watch, the International federation
for Human Rights and the Amnesty International reported the use of heavy arms, explosive and
chemical weapons in populated areas with no discrimination between civilians and army42. The use
of chemical weapons and heavy arms are prohibited under various treaties and conventions43
The weapons were being used at Sutas, from both the sides- from the rebels HLF as well as the
Noobian Army. Responsibility of the Commander The command has criminal responsibility for
the crimes under his orders. Lama Suki being the Prime Minister of Nooba was the superior and had
the full control of Noobian Army, who directed attack against the civilian population of the Sutas.44
37

Proposition 7
Proposition 6
39
Proposition 4
40
Proposition 7
41
Article 8(2) (b) (xx) of the ICC Statute
42
Proposition 8
43
Convention on the prohibition of the development, production and stock piling of bacterio logical and toxin weapons
and on their destruction Article 1 The chemical Weapon Convention
38

44

Article 28(2)of the ICC statute

16

A superior-subordinate relationship requires a formal or informal hierarchical relationship where a

superior is senior to a subordinate. The relationship is not limited to a strict military command style
structure.45
In the case of Bagilishema46,:
The Chamber held that the three essential elements of command responsibility are: (i) the
existence of a superior-subordinate relationship of effective control between the accused and the
perpetrator of the crime; and, (ii) the knowledge, or constructive knowledge, of the accused that the
crime was about to be, was being, or had been committed; and, (iii) the failure of the accused to
take the necessary and reasonable measures to prevent or stop the crime, or to punish the
perpetrator.
(i) Superior-Subordinate Relationship: According to Article 28(b) of the Statute, liability can be

imputed against civilian superiors in command position, when they have an effective control of
their subordinates. The necessary effective control could be present within a national
government, members of government being a particular example in court judgments.47 Lama
Suki, the Prime Minister of Nooba controlled all aspects of governance and was the Minister of
Defence as well48, so his control on the army was de jure and de facto. Lama Suki deployed the
army at Sutas with emergency powers. The armys actions would naturally be answerable to
Lama Suki. These acts were within the effective responsibility and control of the superior.
(ii) Knew or had reason to know: The superior can be criminally responsible if he either knew, or
consciously disregarded information indicating49 that the subordinates were committing or about to
commit such crimes.50By virtue of his position, Lama Suki ought to know about the atrocities caused by
his men, which outweighs the assumption of lack of communication51 if alleged and it leads to a
presumption of knowledge.52 There were reports by a number of human rights organisations which
clearly described the atrocities on the Hist civilians in Sutas by the army personnel, thus the continued
violence by the army establishes that Lama Suki consciously disregarded the information which clearly
indicated the criminal actions of army in Sutas.

(iii) Failure to act: The superior can be criminally responsible if he failed to take all necessary
and reasonable measures53 to prevent or repress the commission of the offence54 or to submit the
45

Semanza, (Trial Chamber), May 15, 2003, . 401

Prosecutor v. Ignace Bagilishema ICTR (Trial Chamber) ICTR-95-1A June 7, 2001, 38
47
Prosecutor v. Kayishema and Ruzindana, ICTR (Trial Chamber), judgment of 21 May 1999, 217 et. esq.(Prefect);
Prosecutor v. Kambanda, ICTR (Trial Chamber), judgment of 4 September 1999, 39. (Prime Minister)
48
Proposition 7
49
Akayesu; Blaskic
50
Article 28(b)(i) of ICC Statute
51
United States v. Von Leeb, (Nuremberg 1948 - law reports of trials of war criminals, the United Nations War Crimes
Commission, Volume XII, London, HMSO, 1949)
52
Prosecutor v. Delalic, Case No. IT-96-21-T (Trial Chamber) November 16, 1998
53
Prosecutor v. Andre Imanishimwe, Case No.ICTR-99-46-T (Trial Chamber), May 17 1994,
54
Article 7(3) of the ICTY Statute and 6(3) of the ICTR Statute
46

17

matter to the competent authorities for investigation.55 The absolute inaction on the part of Lama
Suki makes him criminally responsible for the crimes against civilian population. The facts have
also stated that Lama Suki was unable protect the people from both its own troops and the rebel
forces led to the erosion of support for the Government of Lama Suki.56

2. THE CUSTOMARY INTERNATIONAL LAW DOCTRINE OF HEAD OF STATE

IMMUNITY DOES NOT PRECLUDES ZYDAN FROM ARRESTING AND
SURRENDERING LAMA SUKI TO THE ICC.
The customary international Law states that an incumbent head of the state has immunity against all
civil and criminal proceedings in national as well as foreign jurisdictions. The official position as
head of the state attracts immunity from such jurisdictions, in ratione materiae-for acts done in
official capacity and ratione personae-for acts done personally. There is a lack of immunity for
those head of the states who have been charged with international crimes and for those crimes
which amount to the violation of the jus cogens norms. While the head of states have ratione
materiae in respect of official acts, acts amounting to international crimes are not to be considered
official acts.

57

Second, there is no immunity in relation to international crimes because they are a

violation of jus cogens norms and peremptory norms have a higher status than, and ought to prevail
over the laws according immunity.58
2.1. No immunity under customary international law when charged with international crimes
On February 2014, Lama Suki travelled to Zydan to participate in an annual summit59. Lama Suki
was charged with international crimes of War crimes, incitement to genocide and command
responsibility.
Article 27 of the ICC Statute states that:
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on official capacity.
In particular, official capacity as a Head of State or Government, a member of a Government or
parliament, an elected representative or a government official shall in no case exempt a person
from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for
reduction of sentence
2. Immunities or special procedural rules which may attach to the official capacity of
a person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.
55

Article 28(b), ICC Statute

Proposition 8
57
Pinochet Case (No. 3)
58
Andrea Bianchi, Immunity versus Human Right: The Pinochet Case, (10 Eur. J. Intl L 237, 245(1999)
59
Proposition 13
56

18

Article 27(1) is jurisdictional in nature not only the second sentence implicitly exclude immunities
based on the official nature of the act, the first sentence also implicitly establishes that the official
status of the defendant does not exclude them from the jurisdiction of the ICC. The ICTY held that
it is well established that any immunity agreement in respect of an accused indicted for genocide,
war crimes and/or crimes against humanity before an international tribunal would be invalid under
international law.60 The official capacity of the defendant is not a defence before these international
tribunals61 Art. 27 is not simply an isolated treaty provision, but instead exemplifies a larger trend
in international criminal law. The theory considers the rejection of personal immunity by the ICC as
a valid customary exception to the ordinary immunity rule established under customary law and
applicable [] with regard to international criminal tribunals62. Consequently, immunity continues
to subsist with regard to inter-state relations, in proceedings before domestic courts, but it becomes
extinguished before certain international tribunals.63 ICJ in the Arrest warrant case64, the ICJ
concluded that customary international law provides for a general rule entitling a serving official to
enjoy full immunity from criminal jurisdiction before a foreign national court, while admittedly he
or she may be tried before certain International Criminal Courts65 A head of state has no immunity
for an international crime, not because the crime revokes his functional immunity, but because no
distinction exists between private and official for international crimes. Therefore, the courts should
not categorize whether a head of state acts in his private or official capacity, but remove the
categorization of immunity, and deny any immunity when an incumbent head of state commits an
international crime. As early as the Nuremberg tribunal, the international community has
recognized accountability of a head of state for international crimes.
In Ferrini v Germany66 it was held that Germany was not entitled to immunity for serious violations
of human rights carried out by German occupying forces during the Second World War. In doing
so, it relied heavily on the principle of the primacy of jus cogens norms. The notion of jus cogens in
international law encompasses the notion of peremptory norms in International law.67 In this regard,
a view has been formed that certain overriding principles of international law exist which form a
body of jus cogens.68 These principles are those from which it is accepted that no State may
60

Kardazic decision 25
(eg Art. 7(2) of the Statute of the ICTY).
62
Macleod Case in Robert Jennings, The Caroline and Macleod Cases (1938) American Journal of International Law
63
Lozano (Mario Luiz) v Italy, Case No 31171/2008; ILDC 1085 (IT 2008) 24 July 2008, Cass (Italy), See also Claire
de Than and Edwin Shorts in International Criminal Law and Human Right (1st edition) 2003
64
ICJ arrest warrant of 11 April 2000 (Belgium v DRC) 11 February 2002
65
61 ICJ Arrest Warrant judgment
66
Ferrini v Federal Republic of Germany, Italian Court of Cassation, 11 March 2004, 128 ILR 659.
67
Peremptory is defined as: Imperative; final; decisive; absolute; conclusive; positive; not admitting of question,
delay, reconsideration or of any alternative. Self-determined; arbitrary; not requiring any cause to be shown. Blacks
elf-determined; arbitrary; not requiring any cause to be shown. Blacks Law Dictionary (Sixth Edition, 1990), p.1136
68
I. Brownlie, Principles of Public International Law (Fifth Edition, 1998), p. 515.
61

19

derogate by way of treaty. The Court in its Judgment of 9 April 1949 in the Corfu Channel case
(I.C.J. Reports 1949, p. 22), that The Hague and Geneva Conventions have enjoyed a broad
accession69 Further these fundamental rules are to be observed by all States whether or not they
have ratified the conventions that contain them, because they constitute in transgressible principles
of international customary law70. There is a strong presumption that at least the grave breaches of
the four Geneva Conventions have gained peremptory status.

71

Lama Suki in the present case does

not incur immunity from arrest and criminal jurisdiction. Such immunity does not exist when the
person is charged with an international crime. 72 The jus cogens nature of the international crimes is
a potential exception to the immunity rule for state officials.
In the present times, in the cases of International crimes, the head of state immunity is not
recognized as a valid defence. In addition to the ICC Statute, various treaties, such as the Vienna
Convention on Diplomatic Relations,73 the Vienna Convention on Consular Relations,74 the New
York Convention on Special missions,75 and the Convention against Torture and Other Cruel,
Inhumane or Degrading Treatment or Punishment,76 prohibit a head of state to invoke functional
immunity as a defence. Furthermore, this position is recognized by the ICTY Statute,77 ICTR
Statue,78 and other international tribunals statutes.79

69

9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22),
Legality of the Threat or Use of Nuclear Weapons: Advisory Opinion, ICJ Reports (1996) (the Nuclear Weapons,
case), . 79.
71
The number of norms fulfilling all the criteria is not necessarily very small, even if limited. L. Hannikainen,
Peremptory Norms (Jus Cogens) in International Law, (Helsinki, 1988), p. 606.
72
Antonio Cassese; When may senior state officials be tried for international crimes? Some comments on the Congo v
Belgium case EJIL (2002) Vol 13 no. 4 853-875 (referring to cases in which British, Dutch, French, Spanish, Israeli,
Italian Mexican, polish and us courts have entertained proceeding against foreign state officials.
70

73

Vienna convention on Diplomatic relations, April 18, 1961, 500 U.N.T.S. 95 (diplomatic immunity recognized
without specific mention to head of state immunity).
74
Vienna Convention on Consular Relations art. 10, April 24, 1963, 596 U.N.T.S. 261 (consular immunity recognized
without specific mention to head of state immunity).
75
Convention on Special Missions art. 21, December 8, 1969, 1400 U.N.T.S. 231 (head of state immunity
recognized during a special mission in foreign states).
76
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85
(the convention does not recognize officials immunities); see Andrea Bianchi, Immunity versus Human Right: The
Pinochet Case, 10 Eur. J. Intl L 237, 245(1999) (Pinochet court reasoned that head of state immunity is inconsistent
with the purpose and object of the Torture Convention).
77
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 art. 7, S.C. Res. 827,
U.N. SCOR, 48th Sess., U.N. Doc. S/RES/827(May 25, 1993) [hereinafter ICTY statute].
78
18 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other
Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Neighbouring
79
States, between January 1, 1994 and December 31, 1994 art. 6, S.C. Res. 955, U.N. SCOR, 48th Sess., U.N. Doc.
S/RES/955 (Nov. 8, 1994) [hereinafter ICTR statute].Statute of the Special Court of Sierra Leon art.6(2), S.C. Res.
1315, U.N. SCOR, 4054th mtg., U.N. Doc. S/RES/1270 (1999)[hereinafter Sierra Leon Special Court Statute]; Law on
the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed
During the Period of Democratic Kampuchea art 29, NS/RKM/1004/006 (Feb. 27, 2003) (amended on October 27,
2004) [hereinafter Extraordinary Chambers Law].

20

In the Pinochet case80, the House of Lords in appeals stated that a treaty obligation prevents a head
of state from enjoying functional immunity when he commits a core international crime while he is
in office.81 The head of state immunity gives incentive to heads of state to hold office as long as
possible when they commit international crimes, such immunity should not exist.82
In addition, a head of state does not legitimately act on behalf of his state when he commits an
international crime83 because such an act does not further any of the states legal objectives. The
activities of the Noobian army directed by Lama Suki in Sutas escalated the violence between the
HLF and the Noobian Army. As early as the Nuremberg tribunal, the international community has
recognized accountability of a head of state for international crimes.84 In Pinochet case85, the
House of Lords found that General Pinochet, who was the head of state of Chile at the time he
committed torture, did not have immunity86, Special Court for Sierra Leon indicted Charles Taylor,
the sitting head of state of Liberia, for an international crime he allegedly committed during the
Sierra Leon Civil War.87 The Special Court for Sierra Leone rejected Taylors defence on absolute
immunity from criminal liability
The decision of PTC on the immunity issue for Al Bashir is
That the current position of Omar Al Bashir as head of state which is not a party to the statute has
no effect on the courts jurisdiction on the present case. The PTC states that the one of the core
goals of the statute was to put an end to impunity and article 27 to provide to achieve this goal core
goal88
The well-founded principle of individual criminal responsibility, which, in the case of international
crimes, rejects the defense that official capacity should exempt the perpetrator of accountability.89
Secondly, it avoids an irreconcilable clash between, on the one hand, the granting of functional
immunity for international crimes and, on the other hand, the accordance of universal jurisdiction

80

Ex Parte Pinochet Case No. 3 (1999) 48 ICLQ 958

Pinochet case, (international crimes cannot be committed under head of states functional capacity
82
Michael A. Tunks, Diplomats or Defendants? Defining the Future of Head-of-State Immunity, 52 Duke L.J. 651 656
(2002).
83
Salvatore Zappala, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The
Gaddafi Case before the French Cour de Cassation, 12 Eur. J, Intl L. 595, 601 (2001).
84
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the
International Military Tribunal. London, 8 August 1945 Charter art. 7 (Aug. 8, 1945)
85
Supra (note 80)
86
Pinochet Case No. 3 (1999) 48 ICLQ 958
87
C. Jalloh, Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for
Sierra Leone, ASIL Insights, American Society of International Law (October 2004),
88
Al-Bashir Decision, 41. 4 march 2009
89
In re Goering at Nuremberg Trials (1946), reprinted in 13 International Law Reports (hereafter ILR) 203, 221 (1951)
(Intl Mil. Trib.).
81

21

over such crimes90. If it was accepted under international law that conduct performed within an
official capacity could never amount to individual responsibility, then the concept of transnational
prosecution for such crimes as genocide and torture would ring hollow, leaving universal
jurisdiction as an empty shell.

2.2 Obligation of the state party to arrest and surrender

When the treaty obliges state parties to prosecute or punish certain international crimes, they have
to uphold such an obligation. The states being a party to the ICC statute have an obligation to arrest
such persons, for whom an arrest warrant has been issued by the ICC.
Approximately seventy international criminal conventions impose such an obligation to party
states, including the Genocide Convention, the Convention against Torture, International Covenant
on Civil and Political Rights, American Convention on Human Rights, and the European
Convention for the Protection of Human Rights and Fundamental Freedoms.91
In the present case, when Prime Minister of Nooba travelled to Zydan, a state party to the ICC
statute. Zydan was bound to arrest Lama Suki as he was wanted by the Court. Thus, Zydan through
the Security Council referral also becomes bound to arrest and surrender Lama Suki. The effect of
Security Council referral is that all the parties are regarded to be bound by the ICC statute and thus
the article 27. Parties to the ICC Statute have an obligation under Article 89(2) Part IX of the ICC
Statute to comply with the courts arrest and surrender when the accused is on their territory.92.
The removal of immunity of Article 27 must be understood as applying not only in relation to the
ICC itself but also in relation to states acting at the request of the ICC. The removal of immunity is
contained not only in 27(2) which stipulates that immunities are not to bar the ICC from exercising
jurisdiction but also in Article 27(1). When the parties agreed in the first sentence of Article 27(1)
that the statute applies to their officials, they thereby agreed that all parts of the statute, including
the cooperation regime in Part IX apply to those officials. Since, the international law immunities of
officials of state parties are removed by the statute, when such an official is present on their
territory, this would not amount to acting inconsistently with its obligations under the customary

90

Akande, AJIL 98 (2004), 407 (415). See also Bianchi, EJIL 10 (1999), 237 (261): International law cannot grant
immunity from prosecution in relation to acts which the same international law condemns as criminal and as an attack
on the interests of the international community as a whole
91
Masaya Uchino, Prosecuting Heads of State: Evolving Questions of Venue - Where, How, and Why?, 34 Hastings
Int'l & Comp. L. Rev. 341, 344 (2011)
92
The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the
request outlined in article 91, to any State on the territory of which that person may be found and shall request the
cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the
provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

22

international law. Thus, Zydan, being state party to the ICC statute having assenting to 27(2)
cannot decline the cooperation under Part IX. 93
Also since Nooba is a party to the Genocide Convention,94 Articles IV95 and V of that convention
have lifted head of state immunity where the accused is charged with genocide.96
According to the ICJs logic, States parties to the ICC have an obligation to cooperate with the ICC
when persons wanted for genocide are on their territory, and since Article IV provides that even
heads of State and public officials are to be punished, it could be argued the Genocide obligation
imposes an obligation on ICC States arrest those wanted for genocide, even if they are the head of
State. On that argument, parties to the ICC Statute have an obligation to arrest persons wanted by
the ICC even if those persons would otherwise be entitled to international law immunities. Lama
Suki is charged with the crime of incitement to genocide, and Nooba being the state party to the
Genocide convention has itself waived the immunity of Head of the State.
On 29 October 2013 the United Nations Security Council under Chapter VII of the UN Charter and
Article 13(b) of the Rome Statute passed the resolution 2019 to the ICC and urged all the states to
co-operate with the Court, whether or not it was party to the Rome Statute. On the basis of this
Resolution, the Security Council obliges Zydan to cooperate with the court the Security Council,
acting under Chapter VII, referred the Darfur situation to the ICC, and by doing so implicitly
overruled Lama Sukis immunity97. Due to this implied waiver, the application of Art. 27 to Sudan
thus finds its legitimacy in the general power of the Security Council under Chapter VII.98
Also, when the ICC holds jurisdiction over a particular situation or individual through SC
resolution, it is obliged, and authorized, to apply the Statute as a whole, including Art. 2799
UN Security Council would be competent to remove any immunity of serving heads of state it
under Chapter VII of the UN Charter.100 When the courts proceedings have been triggered by a
referral by the UN Security Council under Chapter VII of the Charter, the cooperation obligations

93

Akande, AJIL 98 (2004)

Convention on the Prevention and Punishment of the Crime of Genocide (1951) 78UNTS 277, adopted on
9December 1948, entered into force on 12 January 1951
95
Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are
constitutionally responsible rulers, public officials or private individuals.
96
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v Serbia & Montenegro), Judgment of 26 February 2007, General List No 91.
97
In a similar case involving the president of Sudan Al Bashir Milanovic to Heller, Opinio Juris International Law
Blog, 11.7.2008, response 6, available at http://opiniojuris.org/2008/07/11/icc-prosecutor-to-chargesudanspresident-with-genocide
98
Exploring the Obligations for States to Act upon the ICCs Arrest Warrant for Omar
Al-Bashir A Legal Conflict between the Duty to Arrest and the Customary Status of Head of State Immunity
Von Michiel Blommestijn,* Dr. Cedric Ryngaert,** Utrecht
99
Akande, JICJ 7 (2009), 333-352.
100
Dapo Akande, The American Journal of international Law Vol. 98, No.3 (Jul 2004) pg 407-433
94

23

of state parties derive not only from the Rome Statute, but also from the UN charter. Therefore, they
prevail; over obligations under any other international agreement.
Here the ICC statute acts not as a treaty here but by virtue of being as security council resolution
the removal of immunity operates even to non-state parties. However this might act against the
customary head of state immunity under international law, article 103 of the UN charter can be
considered here.

101

State parties to the statute are under an obligation to cooperate with the court

and this included obligation to comply with the request for arrest and surrender.102 Resolution 2019
by the SC provides an obligation to Zydan to arrest Lama Suki in the present case, and he does not
incur any immunity from arrest, as per the customary international laws. A referral of a situation to
ICC is a decision to confer jurisdiction of the court. This decision is made under the chapter VII of
the charter and article 25 which maintains that, if a referral has conferred jurisdiction, it stops them
in taking a contrary position103 Obligation under the chapter VII of the charter, in a situation
referred by the SC. These obligations will prevail over all the other obligations by virtue of
international treaties.104
The Namibia advisory opinion of the ICJ says that the security council is entitled to make
decisions which are legally operative (in other words they define a legal situation ) with regard to
one state but which also becomes binding on all states in so far as they are obliged to accept that
the legal situation as defined by the security council.105
Once the Security Council makes it decision within the scope of its powers by which it defines a
legal situation or makes a determination, that determination or the legal situation is binding on the
states. 106

101

Dapo Akande, The legal nature of security council referrals to the ICC and its impact on Al Bashirs Immunities,
Journal of International Criminal Justice 7 (2009), 333-352, oxford university press.
102
Arts 86 and 89 of the ICC Statute
103
Article 25 of the Chapter VII UN charter member of the United Nations agree to the accept and carry out the
decisions of the security council they are legally bound to accept that the court has jurisdiction in the circumstance in
which the security council has conferred jurisdiction. Article 25 stops them in taking a contrary position.
104

Akaseyu, Blaskic judgement ICTR

Advisory opinion, legal consequences for states of the continued presence of south Africa in Namibia
106
E Oberg,the legal effects of the resolutions of the UN security council and general assembly in the jurisprudence of
the ICJ.16, European journal of international law (2005) 879, 891
105

24

PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced, it
is most humbly prayed before this Honorable Court that it may be pleased to declare:

1. That Lama Suki is liable for the charges of incitement of genocide, war crimes of inhuman
treatment and unlawful confinement, command responsibility and directing use of prohibited
weapons, under the relevant provisions of Articles 6,8 and 28 of the Rome Statute of International
Criminal Court.
2. That the customary international law doctrine of Head of State immunity does not preclude
Zydan from arresting and surrendering Lama Suki.
And pass any other order that it deems fit.
All of which is respectfully submitted.

Prosecution Team: ALS 2/M26

25

26