Question 1.

If the evidence (open sources) on delivery of drones by Iran is taken at its

highest level of probative value, could such supplies have facilitated the crime of
aggression as defined in the ICC Statute, taking into account the fact that the delivery of
drones played arguably no part in Russia’s decision to launch a special military operation
against Ukraine?

The Defence shall argue that Mr. Ali Khamenei and Ebrahim Raisi’s supply of drones to
Russia as the leaders of Iran should not incur liability under Article 25(3)(c) ICCSt. We argue
this on the basis of 4 key arguments. … Argument (b): The attack against Ukraine of 24
February 2022, being the immediate manifestation of the decision to commit aggression,
should be considered as the crime of aggression, on the basis of which aiding and abetting
liability should be assessed; aggression is not a continuing crime and the continuation of this
act is irrelevant to the incurring of liability for the crime of aggression under article 8bis 3 as
well as aiding and abetting under article 25(3)(c). … Argument (e): the drones were not
supplied for the purpose of facilitating the crime of aggression, as we cannot establish that
Mr. Ali Khamenei and Mr. Ebrahim Raisi did not have the necessary mens rea under articles
25(3)(c) and Article 30

Aggression is not a continuing crime

1. The attack against the Ukraine commencing the 24th February 2022, was the
immediate manifestation of the decision to commit an act of aggression against
another State, it is on this basis that liability for aiding and abetting should be
assessed; aggression is not a continuing crime.

2. The question to be addressed here is whether Khamenei and Raisi’s supply of drones
after the liability incurring act for the crime of aggression can satisfy the requirements
under Article 25(3)(c)1, and result in them being culpable for aiding and abetting the
crime of aggression.

3. In the assessment of whether an individual is liable for the crime of aggression, the
Court must determine whether an individual’s ‘act’ by its character, gravity and scale
is a manifest violation of the Charter of the United Nations.2 To elaborate, Article
8bis3 gives a non-exhausive list of qualifying factors that illustrate what acts would
incur liability. For example, Article 8bis3(b): ‘Bombardment by the armed forces of a

1
Art. 25(3)(c) ICCSt
2
Art. 8bis3 (1) ICCSt
 State against the territory of another State or the use of any weapons by a State against
the territory of another State’. Liability would arise once the bombardment was
initiated against the territory of another State and the Court assessed whether in the
given circumstances, it was manifest violation; the individual would be guilty of the
crime of aggression. The continuation of this act is of no relevance to the satisfaction
of the necessary requirements for an individual’s culpability under the crime of
aggression.

4. Considering Article 25 3(c), liability for aiding and abetting is in relation to the
‘commission of the crime’.3 As discussed above the liability incurring ‘crime’ for the
crime of aggression under Article 8bis3 is an ‘act of aggression’. Whether it be a
bombardment,4 blockade5 or an attack by the armed forces of the aggressor State.6 All
that is required is a singular action to be held liable for the crime of aggression. It
would be inconsistent for an individual to be culpable for aiding and abetting a crime
after the fact rather than during.

5. Consider this hypothetical, if person B (the accomplice) hands person A a knife so

that he can stab someone, and person A kills that individual. Person A would be liable
for murder and person B could be held liable for aiding and abetting murder.
However, if person B hands person A a knife to stab someone but person A has
already killed the individual, person B cannot be held liable for aiding and abetting
murder; the act has been committed, the victim is dead and person A has satisfied the
actus reus of murder without the assistance of person B. Even if person B had the
intention to help person A kill the individual. They could not be held cupable for
aiding and abetting murder as the act was committed irrespective of person B’s
assistance.

6. Similar to this hypothetical, the crime of aggression is an act that incurs liability upon
the committing of a singular act. Once it has been established that the accused is
guilty of the act. Even if there are different manifestations of aggression after the
initial act, or the ‘level’ of aggression has increased, this is of no relevance as the

3
ICCSt, supra note 1
4
Art. 8bis3(b) ICCSt
5
Art. 8bis3(c) ICCSt
6
Art. 8bis3(d) ICCSt
 crime had already been satisfied with the first act. As such, liability for aiding and
abetting should be assessed on the basis of Russia’s manifest act of aggression against
the Ukraine, being the invasion from the 24 February 2022.

To further illustrate, why the crime of aggression is not a continuing crime and is
assessed on the basis of a manifest singular act, we can look to Kampala amendments:
the foundation upon which Article 8bis3 was introduced. Article 8bis3 (1) limits the
concept of aggression to acts that by their ‘character, gravity and scale’, constitute a
manifest violation of the UN Charter.7 ‘Manifest’ is an objective standard as
emphasised in the amendments to Annex II of the Elements of Crime.8 Although there
have been no prosecutions of individuals for the crime of aggression as of this date,
what the preparatory work makes clear as stated by Tom Ruys, is that the inclusion of
this objective standard was to exclude ‘borderline cases’ or cases of ambiguous
legality.9 Granted this argument was made in the context of determining whether an
act ‘is’ or ‘is not’ a crime of aggression but it is important to note that the focus
remains on the assessment of a singular act, rather than a pattern of continuous action.
As such, the crime of aggression from conception is, as plainly defined, ‘an act of
aggression which, by its character, gravity and scale, constitutes a manifest violation
of the UN Charter’.10 In accordance with the nullem crimen principle we should
strictly construe the definition of a crime and in case of ambiguity, the definition
should be construed in favour of the accused.11

7. To hold that the crime of aggression is a continuous crime would require us to misconstrue
the plain meaning of this article in violation of the nullem crimen principle. As such, it is
only logical to assess liability for aiding and abetting based on the crime as per its definition
and not by means of extension of analogy. Therefore, the defence maintains that aggression is
not a continual crime and thus Khameni and Raisi’s culpability under Article 25(3) should be
assessed solely on Russia’s manifestation of aggression being the attack on the Ukraine
commencing 24 February 2022.

7
Art. 8bis3 (1) ICCSt
8
Kampala Amendments on the Crime of Aggression, Annex II: Amendments to the Elements of Crime
9
Criminalizing Aggression: How the Future of the Law on Force rests in the hands of the ICC, Tom Ruys, The
European Journal of International Law
10
ICCSt, supra note 7
11
Art. 22(2) ICCSt
The Mens Rea Standard has not been satisfied

8. The Defence will finally argue that the drones delivered by the leaders of Iran,
Khamenei and Raisi, were not for the purpose of the facilitation of the crime of
aggression.

9. The Mens rea element under Article 25(3)(c) of the Rome Statute the crime of aiding
and abetting the crime of aggression is found in the wording, ‘for the purpose of
facilitating the commission’ of the crime. To establish whether Khamenei and Raisi
have satisfied the mens rea requirement, the question that must be addressed is
whether Iran’s leaders intended to aid Russia in the commission of the crime of
aggression.

10. The primary applicable source of law on this matter can be found in the Trial
Chambers decision in Bemba et al. The Chamber established the ‘purpose
requirement’ which entails that the accessory must have intentionally lent his or her
assistance in order to facilitate the principal offence. The accessory must not only
have the knowledge that his assistance would lead to a crime (though not necessarily
the exact crime) but should also lend the same with the intent to assist the principal. 12
It is insufficient that the accomplice knows (from the information in the public
domain) that their assistance will contribute to the offence. The accomplice must
intend to aid with the purpose of facilitating the crime.

11. The most recent application of this mens rea requirement can be found in the
Confirmation decision for Yekatom and Ngaissona. They accordingly adopted an
approach of two-fold intent: one under the applicable Article (Article 25(3)(c) in this
case) and another under Article 30.13 To further elaborate, the individual must fulfil
the specific mens rea requirement under the appropriate statute, Article 25(3)(c) in
this case, in addition they must have intent and knowledge in relation to the crime
under Article 30 of the Statute.

12
Judgement, Bemba et al, (ICC-01/05-01/13), Trial Chamber, 19 October 2016, § 93-98
13
Decision on the confirmation of charges, Yekatom and Ngaïssona (ICC-01/14-01/18), 11 December 2019, §
128
 12. With the applicable law considered, Khamenei and Raisi’s supply of drones to Russia
would not meet the Mens Rea requirement of Article 25(3)(c) and Article 30. If we
apply the purpose requirement to the supply of drones by Iran, there may be argument
to say that Iran knew that the drones could be used as anyone who supplies arms
cannot be ignorant to their potential use. However, there is no evidence to show Iran
had supplied the drones to Russia for their purposeful use in the invasion of the
Ukraine. On the other hand, if we were to assume the purpose requirement had been
fulfilled, the Prosecution would find great difficulty in establishing that the drones
were supplies with the knowledge of the invasion of the Ukraine and was the intent of
Khamenei and Raisi. This is supported by reports of Iran supplying drones to Russia
several years before the invasion of the Ukraine,14 with additional reports indicating
an arms relationship between Iran and Russia dating as far back as 2001,15 to the
Defence’s knowledge. To deduce that Iran had supplied Russia with drones for the
specific use in a Russian invasion of the Ukraine would be unfair and inconsistent;
arms trading between States is legal and the Court has investigated situations where
arms were supplied by many States. Without evidence that clearly demonstrates the
drones had been sent specifically for use in Russia’s act of aggression we cannot
conclude that Khamenei and Raisi had the meet the mens rea requirements established
in Bemba et al and Yekatom and Ngaisonna.

13. Therefore, the Defence maintains that Khamenei and Raisi did not supply Russia
drones for the purpose of facilitating Russia’s invasion of the Ukraine. Both Iran and
Russia have been engaged in arms trades for many years prior to the invasion. To
incur liability for legal arms trade due would be a monumental decision that result a
mass influx of investigations that we believe the Court is not prepared for.

14
S. Kamali Dehghan, ‘Iran gives Russia copy of US Scan Eagle drone as proof of mass production’, The
Guardian, 21 October 201, available online at https://www.theguardian.com/world/2013/oct/21/iran-russia-
us-scaneagle-spy-drone-production-capture (last visited 05 November 2023)
15
Arms Control Association, available online at
https://www.armscontrol.org/act/2001-11/iran-nuclear-briefs/russia-iran-discuss-arms-deal