CASE CONCERNING THE OUTBREAK OF H1N1 AVIAN INFLUENZA

IN THE INTERNATIONAL CRIMINAL COURT

THE PEACE PALACE, HAGUE,

NETHERLANDS

REPUBLIC OF HINDIA

APPLICANT

VS.

REPUBLIC OF CHINISIA

RESPONDENT

SUBMITTED TO: SUBMITTED BY;

MR.KESHAV GAUR ANIKET TRIVEDI
ASSISTANT PROFESSOR R. ID -R29110

ON SUBMISSION TO THE INTERNATIONAL CRIMINAL COURT

MEMORIAL FOR THE APPLICANT

 Table of Contents

LIST OF ABBREVIATIONS……………………………………………………………………. .3

INDEX OF AUTHORITIES ............................................................................................................ 4

STATEMENT OF JURISDICTION .................................................................................................. 5

STATEMENT OF FACTS .............................................................................................................. 6

WRITTEN ARGUMENTS ............................................................................................................. 9

PRAYER .................................................................................................................................... 13
 LIST OF ABBREVIATIONS

Sr. no. Abbreviation Full form

1. Org. Organization
2. LR Legal reports
3. Ors. Others
4. V. Versus
5. SC Supreme court
6. AIR All India reporter
7. SCC Supreme court cases
8. SCR Supreme court reporter
9. ORS Other parties
11. OP Opposite Party
12. AC Appeal cases
 INDEX OF AUTHORITIES

STATUTES REFERRED:

 Rome Statute of the International Criminal Court, 1998

CASES REFERRED :

 THE PROSECUTOR v. ABDALLAH BANDA ABAKAER NOURAIN1

 THE PROSECUTOR V. FRANCIS KIRIMI MUTHAURA, UHURU

MUIGAI KENYATTA AND MOHAMMED HUSSEIN ALI2

 THE PROSECUTOR V. JEAN PAUL AKAYESU (JUDGEMENT) CASE

NO. ICTR-96-4-T, TRIAL CHAMBER 1, 2 SEPTEMBER, 1998.

BOOKS REFERRED:

 THE INTERNATIONAL CRIMINAL COURT (A CLOSE LOOK AT THE WORKING OF THE

INSTITUTION) : MANOJ KUMAR SINHA

 AN INTRODUCTION TO INTERNATION CRIMINAL LAW : WILLIAM A.

SCHABAS

1
“Prosecution’s submissions on trials in absentia in light of the specific circumstances of the Banda case”, 13
December 2019, ICC-02/05-03/09-673-ConfExp

2 THE PROSECUTOR V. FRANCIS KIRIMI MUTHAURA, UHURU MUIGAI KENYATTA AND MOHAMMED
HUSSEIN ALI ICC-01/09-02/11-383
 STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THIS HON’ABLE INTERNATIONAL

CRIMINAL COURT – APPEALS CHAMBER, UNDER ARTICLE 813 OF THE ROME
STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 1998.

THIS HON’ABLE COURT HAS THE JURISDICTION UNDER THE ABOVE

MENTIONED ARTICLE TO HEAR ANY APPEAL CHALLENGING THE DECISION OF
THE TRIAL CHAMBER UNDER ARTICLE 74.

3
1. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as
follows:

(a) The Prosecutor may make an appeal on any of the following grounds:

(i) Procedural error,

(ii) Error of fact, or

(iii) Error of law;

 STATEMENT OF FACTS

 Hindia and Chinisia are located adjacent to each other. Hindia has ratified the Statute and
Chinisia is a non-party to the Rome Statute. Both States are members of the UN and the
WHO. Chinisia is ruled by an authoritarian regime and has been a secretive country with
little involvement in the international community, and has had a strained relationship with
the government of Hindia.
 General MaoXI is a national of Chinisia and the Minister of Defense. He is the second
most powerful official with substantial autonomy in his sphere of authority. He has
budgetary and command authority over all agencies and functions of the government
relating to national security, Ministers of Transportation, Health, Public Safety, Defence
and the Chinisia armed forces and police.
 Chinisia had been hit by the H1NI Avian Influenza which affected poultry and wild birds.
General ordered Dr. Ramshaym to develop a vaccine against the Influenza. Ramshaym
pointed out that the Institute had never before worked with such a dangerous virus, and
requested for an increased funding to upgrade the existing lab facility, including by
adding airtight seals, improved air filtration, a shower in the anteroom, and an incinerator
for contaminated clothing. He specifically warned the General MaoXI that “without these
upgrades there was a very high risk that a deadly virus could escape the lab into the
general population of Chinisia.”
 General MaoXI dismissed these requests and told Ramshaym that if he won’t get the job
done under these conditions, he’ll be replaced by someone else who will. After
commencement of the development of the virus, Ramshaym reported to the General Mao
XI that two scientists had failed to report to work as they were experiencing flu-like
symptoms. The scientists traveled to their home near the Hindia border from the Lab on a
crowded bus, potentially exposing dozens of individuals along the way to quarantine
themselves. MaoXI instructed Ramshaym to continue the work with other scientists until
the sick personnel recovered and returned to the Lab. Unfortunately, the two scientists
had died and more scientists at the Lab started to show symptoms of serious illness.
 Ramshaym left the Institute with copies of his email correspondence and traveled to
Hindia. He provided the government of Hindia copies of the correspondence with the
Defendant regarding the development and escape of the deadly virus. The Hindia Minisry
 immediately forwarded them to the WHO. According the WHO Report, the spread of the
virus resulted in the death of 250,000 citizens of Hindia and severe illness to pay more.
 General MaoXI convened an emergency meeting and prevented the ministers from
informing the authorities of Hindia and the WHO. He said “I don’t give a damn about
Hindia. My order stands. Tell no one! Let’s focus on what we can do for Chinisia.” The
minutes of this meeting were leaked on 10 April 2021 to the international press by the
Secretary of the National Security Council.
 Hindia couldn’t prosecute the General MaoXI due to lack of an extradition treaty.
Thereafter, Hindia referred the matter to the International Criminal Court. General MaoXI
notified the ICC that he would represent himself. On rejection of his request during the
proceedings, General MaoXI attempted to derail the proceedings of the Court by not
cooperating with the council appointed by the Court. Further General MaoXI disrupted
the Court at several instances by resorting to the use of foul language in the form of
anatomical slang, racial slurs and curse words to refer to the Prosecutor and Judges.

 The International Criminal Court ruled that-

Firstly, that the Defendant was lawfully deprived of his rights u/A 61 and 67(1)(d) of the
Rome Statute.

Secondly, that the Defendant may be prosecuted for commission of crimes against
humanity, namely other inhumane acts, pursuant to Articles 7(1)(k) and 25(3)(b) of the
Rome Statute.

Thirdly, that the preconditions set forth in Article 12 of the Statute are met in this case
 ISSUES FOR CONSIDERATION

ISSUE I. Whether General MaoXI was unlawfully deprived of his right to be present at the
confirmation hearing under Rome Statute and to represent himself ?

ISSUE II. Whether the charged offences can be prosecuted as “Other Inhumane Acts” under
article 7(1)(k) of the statute ?

ISSUE III. Whether the ICC has jurisdiction to prosecute General MaoXI under article 12 of
the Rome Statute, considering that all of his actions related to the charges of Other Inhumane
Acts occurred in his state of nationality which is not a party to the ICC ?
 WRITTEN ARGUMENTS

ISSUE I. Whether General MaoXI was unlawfully deprived of his right to be present at the
confirmation hearing under Rome Statute and to represent himself ?

 It is humbly submitted before this hon’able court that the accused i.e., general maoXi was
lawfully deprived of the rights of the accused given by the article 61 and article 67(1)d of
the Rome statute of the international court of justice 1998.

 Article 614 of the Rome statute states the confirmation of the charges before the trial
which is conducted in the pre trial phase and the article specifically specifies that which is
to be done in presence of the prosecutor and the person accused as well, which is
complied by the court and the accused general maoXi was present at the hearing

 Article 67(1)d 5 of the Rome statute states the rights of the accused person to be present at
the trial, to conduct the defense in person or through the legal assistance or the council
provided by the court. The rights provided to the accused are totally complied by the
court and the accused was not deprived of any of the rights.

 Deprivation from the rights of accused:-

4
Article 61 Confirmation of the charges before trial

1. Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary
appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the
Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person
charged, as well as his or her counsel.

5
Article 67(1) (d) Subject to article 63 , paragraph 2, to be present at the trial, to conduct the defence in
person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal
assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of
justice so require, and without payment if the accused lacks sufficient means to pay for it;
Power of article 63 of the Rome statute – article 63 states that

Trial in the presence of the accused

1. The accused shall be present during the trial.

2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber
may remove the accused and shall make provision for him or her to observe the trial and instruct
counsel from outside the courtroom, through the use of communications technology, if required.
Such measures shall be taken only in exceptional circumstances after other reasonable
alternatives have proved inadequate, and only for such duration as is strictly required.

 The article 63(2) of the statute clearly states that an accused can be deprived of his rights
as a accused of article 61 and 67(1)d on the basis of his sole behavior in the court room,
the disturbance caused by the accused general MaoXi the disrupting of the Court at
several instances by resorting to the use of foul language in the form of anatomical slang,
racial slurs and curse words to refer to the Prosecutor and Judges.

 In the case of THE PROSECUTOR v. ABDALLAH BANDA ABAKAER NOURAIN6

the international criminal court trial chamber 4 has held that the accused is required to be
present at the confirmation of charges but as per the article 63(2) of the statute In
exceptional circumstances, and under specific conditions, article 63(2) and rules 134bis, 4
134ter and 134quater of the Rules of Procedure and Evidence (“Rules”) provide that trials
at the ICC may proceed in the temporary absence of an accused.

6
“Prosecution’s submissions on trials in absentia in light of the specific circumstances of the Banda case”, 13
December 2019, ICC-02/05-03/09-673-ConfExp
ISSUE II. Whether the charged offences can be prosecuted as “Other Inhumane Acts” under
article 7(1)(k) of the statute ?

 It is humbly submitted before this hon’able court that the charges framed against the
accused under article 7(1)k as “other inhumane acts” cannot be prosecuted because the
accused has committed a much serious and heinous crime against humanity and society at
large.

Other inhumane act under article 7(1)k states

1. For the purpose of this Statute, "crime against humanity" means any of the following
acts when committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack:

(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.

 Under this clause the liability on the accused is only of giving great suffering or causing
serious injury to the body, mentally or physically but as it can be constituted that over
2,50,000 people who were the citizen of the republic of Hindia has lost their lives to the
h1n1 avian influenza.

 In the case of THE PROSECUTOR V. FRANCIS KIRIMI MUTHAURA, UHURU

MUIGAI KENYATTA AND MOHAMMED HUSSEIN ALI7 it was observed that
Sometimes it is often very difficult to discern between public and private resources used
in the perpetration of these heinous crimes, particularly when the sources of the resources
used are unclear.

7 THE PROSECUTOR V. FRANCIS KIRIMI MUTHAURA, UHURU MUIGAI KENYATTA AND MOHAMMED
HUSSEIN ALI ICC-01/09-02/11-383
 In the present case also the accused general maoXi has used a biological weapon to cause
a mass killing of the Hindian citizens and thus he should be convicted under article 7(1) a
of the rome statute for killing of all 2,50,000 citizens of Hindia.

ISSUE III. Whether the ICC has jurisdiction to prosecute General MaoXI under article 12 of
the Rome Statute, considering that all of his actions related to the charges of Other Inhumane
Acts occurred in his state of nationality which is not a party to the ICC?

 It is humbly submitted before this hon’able court that all the preconditions of article 12 of
the Rome statute are complied and the court has jurisdiction to prosecute the accused
general maoXi in the case of violation of article 7(1) a i.e., murder. By using the
biological weapon in the form of a virus.

 The evidences for such an attack being conducted are the statements given by the general
to his ministers who is being quote here “I don’t give a damn about Hindia. My order
stands. Tell no one! Let’s focus on what we can do for Chinisia.”

 Article 12(3) states that

 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph
2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction
by the Court with respect to the crime in question. The accepting State shall cooperate with
the Court without any delay or exception in accordance with Part 9.

 Under this case the chinisia is not a signatory to the Rome statute but they have provided
their assent as the accused general maoXi is present in the court which justifies their
assent to participate in the proceedings.

 Thus he is liable and can be prosecuted by this hon’able court.

 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited it is
most humbly prayed that this Honorable international criminal court may be pleased to
adjudge and declare that:

1. General maoXi was lawfully deprived of his rights as a accused by the court.
2. The charges shall be framed under article 7(1)a of the rome statute.
3. This court has jurisdiction even though republic of chinisia is not a party to the rome
statute.

And pass any other order that this Hon’ble court may deem fit in the interests of justice,
equity and good conscience.

ALL OF WHICH RESPECTFULLY SUBMITTED BY THE APPELLANT.

(COUNSEL FOR THE APPELLANT)