Moot in the Hague

Iswari Jayanandan*

After surviving a gruelling 13-week, multi-accused High Court trial - away from home comforts, one would expect to relax and recuperate – or at least engage in less stressful endeavours in one’s own stomping grounds. But not for me though; I had an opportunity I just couldn’t refuse.

My downtime consisted of an 18,000km journey to the other side of the world to take part in a mooting competition organised by the International Bar Association in conjunction with the International Criminal Court (ICC). This competition had been a fixture in my diary for quite some time, with participation anticipated via zoom. When I was offered the opportunity to appear in person it was too hard to resist.

I accepted with great enthusiasm and set off to the Leiden University campus in The Hague, Netherlands, where the preliminary rounds were held. I observed the final round at the ICC, not wanting to miss this rare opportunity to enter what in essence is the holy summit for human rights enthusiasts such as myself.

The ICC, of course, deals with offending on an entirely different dimension. Where leading murder trials involving one or two deceased would be commonplace in my practice, dealing with someone standing trial for mass murder is somewhat more sobering – a far cry indeed from my typical South Auckland murder accused!

The moot topic

In my role as a Judge of the Appeals Chamber of the ICC, together with two fellow judges, I had the arduous task of testing the logic and validity of arguments from participants appearing for the defendant, the prosecution and the Government of the aggrieved State.

The fictional case concerned the actions of the defendant, the Chief Executive Officer of one of the world’s most successful biotechnology corporations which was owned and controlled by the aggrieved State’s neighbouring nation. The defendant had ordered the release of genetically modified, pesticide resistant insects, resulting in large scale devastation of not just crops, but also lives – with 20,000 dying from starvation and a further 5,000 as a result of suicide.

The pre-trial Chamber confirmed the charge of a form of ‘ecocide’, in essence, a crime against humanity with widespread human casualties pursuant to the ICC Statute. The case involved the added conundrum that neither State was party to the Rome Statute at the time of the offending, with only the aggrieved State filing a declaration accepting ICC jurisdiction after the fact.

The case called for argument not only in terms of whether the act in question sufficiently constituted an offence against humanity, but also whether there were procedural, evidential and jurisdictional issues needing evaluation.

Attendees

Undergraduate and postgraduate students from 50 nations spent 6 days earnestly competing in 15 preliminary rounds, to reach the finals. These students came from Albania to Uzbekistan, with ethnic diversity from the regions of Africa, Asia, Europe, the Americas and Oceania. They totalled 90 teams, and included students from varying backgrounds, representing countries such as Iran and Ukraine where the rule of law and personal safety are burning issues.

My fellow Judges similarly hailed from all corners of the world, bringing a wealth of knowledge and skill. They included sitting judges, counsel involved in ICC/ UN work, academics, advocates and barristers sole, like myself.

There were rules of procedure, precedents, and Treaties/ Statutes, all unfamiliar to me; given my purely domestic experience, I needed to quickly familiarise myself, and my ability to do so was a welcome relief.

Learnings

Apart from the opportunity to enhance my knowledge, I discovered great joy in the many collegial events which provided the chance to engage in intellectual discourse and an exchange of ideas about both national and international law. It was exhilarating. It was equally heartening to witness great camaraderie and warmth.

Importantly, I have learned that despite my nearly 20 years of exclusive defence experience, I was not always convinced by arguments in favour of the defendant. This reinforced my conviction that it is the logic of represented, that is most appealing to me. That is pleasing.

The attraction to participate in something like this, despite my lack of work experience in the international realm, arises from my intense fascination with legal principles and the age old art of advocacy – in essence, debating on a grand scale. I will always be grateful to my father, my greatest mentor, who instilled in me the need to think for myself, have an opinion, develop a reasoned argument, and have the courage to express it.

I must confess that I am deeply drawn to this exciting forum of learning and adventure and look forward to continuing this journey in the years to come!

* Iswari Jayanandan is a criminal barrister practising in South Auckland