Assad - World Model United Nations

Legal Brief for the Defence
where an investigation and decision not to prosecute has occurred. The relevant
provision for this case is Article 17(1)(a) as there has been no decision not to
prosecute and on the Defence’s case investigations are in their preliminary stages.
5. The AC has stated that:
WorldMUN The Prosecutor v Joseph Al-Assad
i. A case is being investigated
If the suspect or conduct have not been investigated by the national
jurisdiction, there is no legal basis for the Court to find the case inadmissible. 7
6. The Defence acknowledges and accepts the reasoning in Katanga that this Court must
have regard to whether or not an investigation has taken place before examining the
question of unwillingness and inability. However, the Defence submits that in
situations where jurisdiction is triggered by a UNSC referral this Court must have a
lower threshold for an ‘investigation’ and place greater emphasis on whether or not a
State is unwilling or unable to genuinely carry out an investigation or prosecution.
a. ‘Case’
7. The AC in Muthaura, Kenyatta and Ali held that ‘national investigations must cover
the same individual and substantially the same conduct as alleged in the proceedings
before the Court.’ 8
8. The Defence’s case is that given a UNSC referral the relevant Syrian authorities
would react and initiate investigations. This is because Syria would wish to exercise
its own jurisdiction over its nationals, especially its head of State.
b. ‘Has been investigated’
9. The AC of this Court discussed the words ‘is being investigated’ from Article
17(1)(a) in Muthaura, Kenyatta and Ali and held that the words ‘signify the taking of
steps directed at ascertaining whether [the accused is] responsible for that conduct, for
instance by interviewing witnesses or suspects, collecting documentary evidence, or
carrying out forensic analyses.’ 9
7 Prosecutor v Muthaura, Kenyatta and Ali (Judgment on the appeal of the Republic of Kenya against the
decision of Pre-Trial Chamber II of 30 May 2011 entitled Decision on the Application by the Government of
Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute) (International
Criminal Court, Appeals Chamber, Case No ICC-01/09-02/11, 30 August 2011), [43].
8 Prosecutor v Muthaura, Kenyatta and Ali (Judgment on the appeal of the Republic of Kenya against the
decision of Pre-Trial Chamber II of 30 May 2011 entitled Decision on the Application by the Government of
Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute) (International
Criminal Court, Appeals Chamber, Case No ICC-01/09-02/11, 30 August 2011), [1].
9 Prosecutor v Muthaura, Kenyatta and Ali (Judgment on the appeal of the Republic of Kenya against the
decision of Pre-Trial Chamber II of 30 May 2011 entitled Decision on the Application by the Government of
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