Original: English

No.: ICTF-01

 

Date: 12 April 2021

 

CHAMBER I

  Before:

 

Judge Stephen Kennedy, Presiding Judge

Judge Antonio Garcia

Judge James Lefler

Judge Wilfred Newcombe

Judge Leonidas Adamantopoulos

Judge Alfred Claesson

Judge Katashi Yamasaki

 

 

 

 

SITUATION IN THE PEOPLE’S REPUBLIC OF CHINA

IN THE CASE OF THE PROSECUTOR v. NULL

 

 

 

 

 

 

Private

Judgment and Sentence

 

 


To be notified in accordance with the Regulations of the Court to:

Office of the Prosecutor Counsel for the Defence
Wilson Swift
Christine Franklin
Timothy Horton
Edwin Newcombe
Richard White  
   
Legal Representatives of Victim Legal Representatives of Applicants
Jessica Howard
Ryan Jones
 
   
Unrepresented Victims Unrepresented Applicants for Participation/Reparation
   
Office of Public Counsel for Victims Office of Public Counsel for the Defence
   
States’ Representatives Amicus Curiae
Weidong Zhao Michael Lewin
   
REGISTRY  
   
Registrar Counsel Support Section
Noah Geiger  
   
Victims and Witnesses Unit Detention Section
Jacqueline Martinez Nelson Lee
   
Victim Participation and Reparations Section Others
Arthur Wood  

 


 I.    Introduction 

A. Procedural history 

B. The Accused and the charge 

II.   Judgment

A. Applicable law

B. Established facts of the case

1. Context 

2. Decisions to imprison and torture 

3. The torture and Ms. Null’s responsibility 

C. Findings

1. Findings on Article 7(1)(e), (f) and (k) of the Statute 

2. Findings on Article 25(3) of the Statute (co-perpetration)

D. Conclusion 

III.   Sentence

 


TRIAL CHAMBER I (‘Chamber’) of the International Criminal Tribunal for the Foundation (‘Tribunal’) issues the following Judgement and Sentence, in the case of The Prosecutor v. Null, having regard to the Rome Statute (‘Statute’) and the Rules of Procedure and Evidence (‘Rules’).    

I.    Introduction

A. Procedural history

1. On 12 March 2021, the Presiding Judge of the Chamber issued a warrant for Ms. Null’s arrest. Ms. Null, a Level-3 personnel in the Foundation, was transferred to Geneva on 14 March 2021 and her first appearance took place on 17 March 2021.

2. On 15 March 2021, the Office of the Prosecutor (‘Prosecution’) filed document containing the charge. It contained a single charge alleging that Ms. Null is responsible for the torture of Mr. Void under Articles 7(1)(e), (f), (k) and 25(3) of the Statute. 

(Omitted)

11. The trial was held between 22 March 2021 and 5 April 2021. Ms. Null admitted guilt. All oral and written submissions relating to the judgement and sentencing were received, and the Prosecution presented the testimony of five witnesses.     

B. The Accused and the charge

12. Ms. Null was born in 11/5/1984 in the province of Sichuan, China. After receiving Bachelor of Arts degree in Jenis Royal Academy, she joined the Special Containment Procedures Foundation (‘Foundation’) in 2010 and became a Level-4 personnel in 2017.

13. On 18/1/2021, the Prosecution filed the document containing the charge under articles 25(3) of the Statute for the crimes against humanity of imprison, torture and other inhumane acts committed in People’s Republic of China from 18 March 2019 until 11 June 2020, in violation of articles 7(1)(e), (f) and (k) of the Statute.

(Omitted)


II.    Judgement

    A. Applicable law

14. The confirmed charge in this case is the crimes against humanity under article 7(1)(e), (f) and (k) of the Statute, which punishes the following acts: ‘Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’, ‘torture’, and ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’. Accordingly, this crime is which the Prosecution has charged to defendant while the defendant admitted guilt.

(Omitted)

    B. Established facts of the case

25. The Chamber will now move to established facts considered for the case. The Chamber determined the facts under article 65(1)(c) of the Statute. The Chamber has relied upon:

(i) the admissions of the Accused;

(ii) other material presented by the Prosecution and accepted by the Accused; and

(iii) the testimony of the witnesses appeared before this Chamber.

26. The Chamber notes that Ms. Null has confirmed, both orally and in writing, that she:

(i) Understands the nature of the charge against her, and the consequences of admission of guilt;

(ii) Voluntarily admits the after sufficient consultation with Defence counsel;

(iii) Waived her rights to (a) plead not guilty; (b) not confess guilt and to remain silent; (c) appeal a conviction or sentence; and (d) raise defences to exclude criminal responsibility; and

(iv) Accepts her individual criminal responsibility for the charge.

    1. Context

27. In 17 December 2018, Mr. Void, a member of ‘Are We Cool Yet?’ (‘AWCY’), created a painting named A Weird Snake, with anomalous effects of functionally changing viewer’s hippocampus. The painting was sold to a Chinese buyer and its anomalous effect caused significant harm. Then, the Foundation noticed the painting and commenced investigation.

28. In 18 March 2019, Mr. Void received an invitation from China to join a forum organized by other local anomalous artists. The invitation was faked by the Foundation. After a conflict of several hours, Mr. Void was caught and taken into custody in the same day he arrived China.

    2. Decisions to imprison and torture

29. In 18 March 2019, Null made the decision to imprison Mr. Void in Site-CN-01. He was not released until 11 June 2020.

30. During the imprisonment, Mr. Void was interviewed multiple times by the Foundation to acquire information pertaining to his painting and other anomalous artificial depictions that were suspected to have been created by other members of AWCY. Ms. Null, as the Site Director of Site-CN-01 at that time, decided to torture Mr. Void to acquire and verify relevant information.

    3. The torture and Ms. Null’s responsibility

31. The torture itself was carried out between around 5 April 2019 and 19 May 2020. Three of the most important and serious events are listed below:

(i) In 5 April 2019, Mr. Void was brought a dark room and suffered sensory deprivation for over thirty hours without being given any food or drinks.

(ii) From 16 June 2019 to 13 December 2019, Mr. Void suffered multiple types of violence, including but not limited to: (a) being confined in a customized cage with spikes which prevented him from sitting or lying; (b) removal of body parts with no anesthesia; (c) violence committed by other personnel in the Foundation, including D-class personnel.

(iii) From 23 February 2020 to 19 April 2020, the Foundation used various anomalous objects during interrogations of Mr. Void. His cognitive capacities and general well-being were severely damaged during the time, according to an internal Foundation medical report.

32. Ms. Null knew that she exercised control over the torture and was fully implicated in its execution. She contributed to torture in but not limited to the following ways:

(i) supervise and oversee the personnel committing the torture;

(ii) provide area and tools for torture; and

(iii) offering instructions and moral supports to other staff during the process.

33. During one such interview of Mr. Void, Ms. Null said the following:

“Seems you’ve given us all you have, Mr. Void. But I’ve seen so many comrades died because of intentionally faked info from skilled spies, and it’s totally possible that you are also one of them. To verify your words, I got a permission – from myself – to use some skips.Take it easy, you won’t die – death of a valuable resource would thicken my glass ceiling. ”

    C. Findings

34.  The Chamber finds beyond reasonable doubt that the evidence presented satisfies the essential facts to prove the crime charged.  

35. In particular, the Chamber emphasises that it considers Ms. Null’s admissions to be both credible and reliable in full. Ms. Null went into high degree of detail when answering the questions and was always willing to provide further explanation in need. The Chamber has independently corroborated Ms. Null’s account with the evidence before the Chamber, strongly indicating that the account is true.

    1. Findings on Article 7(1)(e), (f) and (k) of the Statute

36. From testimony from witnesses, the Chamber finds reasonable grounds to believe that the aforementioned events were likely to have actually occurred during the period above, given all witnesses with different backgrounds gave similar testimony independently and their proved honesty and cooperation in past.

37. The Chamber further finds evidence to establish reasonable grounds to believe that Ms. Null was aware that her direct and indirect actions would cause permanent and irreparable injury on Mr. Void’s physical and mental health, which includes but not limits to:

(i) Severe physical disability;

(ii) Organic injury to central nervous system;

(iii) Phobias about various daily objects; and

(iv) Other significant mental disorder.

(Omitted)

42. In view of those findings, the Chamber considers that all the elements for the crime against humanity of imprisonment and torture are established.

    2. Findings on Article 25(3) of the Statute (co-perpetration)

43. The Chamber notes its findings on Ms. Null’s contribution to the crimes, including her involvement in planning and preparing the torture. From 1/1/2019, Ms. Null was the Site Director of Site-CN-01 and had overall responsibility for the execution phase of the torture and making essential arrangements. Ms. Null personally oversaw the torture itself - she was present in more than half of the interviews in which torture occurred. The Chamber considers that Ms. Null’s contributions collectively qualify as an essential contribution of the crime.

(Omitted)

48. For these reasons, the Chamber considers all the elements of Article 25(3)(a) co-perpetration to be established.

    D. Conclusion

49. In the light of the hearings held and the evidence brought forward, the Chamber is satisfied beyond reasonable doubt that all the essential facts of the crime charged are proven.

50. Pursuant to Articles 7(1)(e), (f) and (k), and 25(3)(a) of the Statute, the Chamber convicts Ms. Null as a co-perpetrator for torture against Mr. Void.


III. Sentence

51. The Chamber comprehensively considered the gravity of the crime. Ms. Null’s crime was against person be not property, and crimes against human are generally of more gravity in the view of the Chamber. With other factors be taken into account, the Chamber concludes that the crime for which Ms. Null is convicted is of significant gravity.

52. The Chamber also considered degree of Ms. Null’s culpable conduct, including aggravating circumstances, mitigating circumstances, admission of guilt, and degree of cooperation during the whole process.

53. The Prosecution submits that Ms. Null’s sentence should be between fourteen and sixteen years. The defence made submissions on the adequate assessment of the sentence.

54. The Chamber considers an opinion from state representative of China that abduction of the Accused made the trial invalid. In this case, the argument is of very limited relevance only. Although the abduction of a government employee may be a violation of territorial integrity of China, universal jurisdiction exists in this case due to its severity. The exercise of universal jurisdiction is not defeated by the abduction of Ms. Null while the measure also appears essential to assure her appearance at trial in light of Ms. Null’s position in the Foundation (Level-3 personnel) and relevant resources owned.

55. After balancing all relevant factors, in order to adequately and sufficiently reflect the harm suffered by Mr. Void and fulfil the objectives of sentencing, the Chamber sentences Ms. Null to 14 years of imprisonment.

56. Noting that none of the parties or participants requests the imposition of a fine or other sort of punishment, the Chamber finds that imprisonment is a sufficient penalty.

57. Pursuant to Article 78(2) of the Statute, Ms. Null is entitled to have deducted from her sentence the time she has spent in detention in accordance with an order of this Tribunal, namely since her arrest pursuant to the warrant of arrest issued on 12 March 2021.