Assad - World Model United Nations

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Legal Brief for the Defence Issues Raised I. Whether the case is rendered inadmissible before the ICC because the Syrian national Courts are willing and able to prosecute Al-Assad. II. Whether the alleged acts serve as a basis for finding the accused guilty of the following crimes against humanity: a. Murder b. Deprivation of Liberty c. Torture d. Rape III. Whether the alleged acts serve as a basis for finding the accused guilty of the following war crimes: a. Wilful Killing b. Torture and Inhuman Treatment IV. On the basis of a guilty verdict, how should the Court proceed on sentencing. WorldMUN The Prosecutor v Joseph Al-Assad 8 | P a g e
Legal Brief for the Defence Arguments WorldMUN The Prosecutor v Joseph Al-Assad I. ADMISSIBILITY 1. The Defence submits that the case is rendered inadmissible by the Art 17(1)(a) a. Burden and Standard of Proof 2. An accused that challenges admissibility under 19(2) of the Statute bears the burden of proof to establish that the case is inadmissible. 1 This burden is discharged by the ‘civil standard’. 2 b. Time of assessment 3. This Court must determine the admissibility of a case ‘on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge.’ 3 The relevant time is the date of proceedings in ‘the Pre-Trial Chamber and not [] [any] subsequent proceedings on appeal.’ 4 A. ARTICLE 17(1)(a) 4. Article 17(1)(a) and (b) are the ‘complementarity provisions’. Article 17(1)(a) refers to a situation where a case is currently being investigated or prosecuted by the national jurisdiction, 5 compared to Article 17(1)(b) which ‘covers a similar scenario’ 6 1 Prosecutor v Bemba (Decision on the Admissibility and Abuse of Process Challenges) (International Criminal Court, Trial Chamber III, Case No ICC-01/05-01/08, 24 June 2010), [201]. 2 Prosecutor v Bemba (Decision on the Admissibility and Abuse of Process Challenges) (International Criminal Court, Trial Chamber III, Case No ICC-01/05-01/08, 24 June 2010), [203]. 3 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]. 4 Prosecutor v Ruto, Kosgey and Sang (Decision on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber's Decision on Admissibility’) (International Criminal Court, Appeals Chamber, Case No ICC-01/09-01/11, 28 July 2011), 7 [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), 6, [9]. 5 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), [36]. See also Prosecutor v Bemba (Decision on the Admissibility and Abuse of Process Challenges) (International Criminal Court, Trial Chamber III, Case No ICC-01/05-01/08, 24 June 2010), [237]-[238]. 6 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), [75]. 9 | P a g e
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Assad - World Model United Nations

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