Assad - World Model United Nations

Legal Brief for the Defence
10. The Defence submits that Muthaura can be distinguished from the present case as it
involved an investigation by the OTP, as opposed to the present case which involved
a UNSC referral. The Defence submits that this material difference places a
significantly lower threshold on what constitutes an investigation by Syria because
this Court has acknowledged that a State’s ‘activities may change over time’ 10 and in
the context of a UNSC referral a State which wishes to exercise its national criminal
jurisdiction is forced to put together an investigation in a very short time period which
could very quickly become an investigation that satisfies the test laid out in Muthaura.
This is especially so given Article 19(4) of the Statute which limits an accused to only
one admissibility challenge in the absence of ‘exceptional circumstances’.
11. This is in line with principles of Treaty interpretation because Article 17(1) must be
read in light of paragraph 10 of the Preamble and Article 1 of this Statute which
expressly emphasise that this Court is complementary to national jurisdictions.
Further, the ‘object and purpose’ 11 of the Statute envisages that the ICC is a Court of
last resort. The Defence submits that in the present situation the ICC’s jurisdiction is
not being utilised as a Court of last resort unless the concerned State is given
appropriate time to respond.
WorldMUN The Prosecutor v Joseph Al-Assad
ii. Unwilling
12. If a case is being investigated then the case is prima facie inadmissible unless Syria is
unwilling to carry out proceedings genuinely.
a. Art 17(2)(a): Sham proceedings
13. If the proceedings were ‘for the purpose of shielding [Al-Assad] from criminal
responsibility’ 12 or there was a national decision ‘made for the purpose of shielding
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), [40] citing J. Stigen, The
Relationship between the International Criminal Court and National Jurisdictions: The Principle of
Complementarity (Martinus Nijhoff Publishers, 2008), 203 and C Cardenas, Die Zulassigkeitsprufung vor dem
Internationalen Strafgerichsthof (Berliner Wissenschafts-Verlag, 2005), 58.
10 Prosecutor v Katanga and Chui (Judgment on the Appeal of Mr Germain Katanga against the Oral Decision
of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) (International Criminal Court, Appeals
Chamber, ICC-01/04-01/07, 25 September 2009), 20 [56].
11 Vienna Convention, Art 31(1).
12 Rome Statute, Article 17(2)(a).
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