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TEAM NO.

2
THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

THE 2013 BENILDE MOOT COURT CHALLENGE

CASE CONCERNING THE DIFFERENCES OF MARSALA AND VARESE ON CERTAIN CRIMINAL PROCEEDINGS

REPUBLIC OF MARSALA (APPLICANT) V. THE STATE OF VARESE (RESPONDENT)

MEMORIAL FOR THE APPLICANT

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. ii

INDEX OF AUTHORITIES ....................................................................................................... vi STATEMENT OF JURISDICTION ......................................................................................... xii QUESTIONS PRESENTED ..................................................................................................... xiii STATEMENT OF FACTS ........................................................................................................ xiv SUMMARY OF PLEADINGS ............................................................................................... xviii PLEADINGS ................................................................................................................................. 1 I. THE ARREST OF JERICA TENG AND OTHER MARSALAN CITIZENS WAS AN INFRINGEMENT OF MARSALAS SOVEREIGNTY AND IS IN BREACH OF INTERNATIONAL LAW.1 A. Varese had violated its treaty obligation before the United Nations Charter to refrain from using threat or force upon illegally entering the Marsalan territory...1 B. Varese does not possess any type of universal jurisdiction to arrest Jerica Teng and other Marsalan citizens within the Marsala territory...2 1. Varese contravened certain provisions laid down under the Geneva Convention IV of 1949..3 2. Varese violated Jerica Teng and other Marsalan citizens right to a fair trial upon illegally arresting them without any previous court hearing.4

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II.

THE SUBSEQUENT DETENTION AND TREATMENT OF JERICA TENG AND OTHER MARSALAN CITIZENS VIOLATED INTERNATIONAL LAW4

A. Acts of torture committed by Varesen authorities against Jerica Teng, Kibo, and other Marsalan citizens as well as other nationalities held as detainees within Camp Archer are in violation of international law4 1. Varese violated its treaty obligations under the Geneva Convention Relative to the Treatment of Prisoners of War.5 2. The acts of torture committed by Varese against Jerica Teng, Kibo, and other Marsalan citizens as well as other nationals violated its treaty obligation under Protocol I to the Geneva Conventions of 19777 3. Violation of Varese in relation to its treaty obligations under the International Covenant on Civil and Political Rights, wherein itself is a state party.10 B. Vareses imposition of its legal jurisdiction over Jerica Teng and other Marsalan citizens as manifested through the latter individuals detention, is illegal as established in international law..11 III. VARESES PROSECUTION OF THE DETAINED MARSALAN CITIZENS BEFORE THE VARESE MILITARY COMMISSION, INCLUDING JERICA TENGS PROSECUTION FOR CONSPIRACY, ARSON, AND MURDER, VIOLATES INTERNATIONAL LAW.13

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A. Vareses Military Commission will not provide a fair and impartial tribunal to try and hear the cases accused to Jerica Teng and the other LAPS members14 B. The Leccens Advancement and Protection Society (LAPS) is not a terrorist organization but rather, is a national liberation movement that aims to promote the rights of the Leccen minority in Varese and that the State of Varese had violated certain provisions covered by the International Convention on the Elimination of All Forms of Racial

Discrimination15 1. The Leccens Advancement and Protection Society (LAPS) is not a terrorist organization, but rather, is a national liberation movement that aims to protect and promote the rights of the Leccen minority in

Varese15 a. LAPS and its members are entitled to resort to armed force to realize their right to Self-Determination.15 C. Jerica Tengs prosecution of murder is invalid and legally unfair for it is provided under international humanitarian law that civilians may be killed lawfully provided that it is only incidental...............18 IV. FORMER VARESEN PRESIDENT PIDO AND GENERAL JERON T SHOULD BE PROSECUTED BEFORE A MARSALAN LOCAL COURT FOR CRIMES COMMITTED AGAINST JERICA TENG AND OTHER

MARSALAN CITIZENS..23 iv

A. Rules of Marsalan law which are relevant to the present case23 1. Rules applicable in regard to the jurisdiction of Marsalan Criminal Courts..23 a. Retired General Jeron T and Former Varesen President Pido are both liable for their criminal acts committed on Marsalan soil and against Marsalan Citizens with regards to the violation of the following articles in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment...25 b. Retired General Jeron T should be detained, tried and prosecuted in Marsalan soil as well as Former Varesen President Pido should be given an international warrant from the INTERPOL due to their violations regarding on the following Articles of the Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts more commonly known as Protocol I of the Geneva Conventions..28 PRAYER FOR RELIEF............................................................................................................. 31

INDEX OF AUTHORITIES Treaties and Conventions Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ......................................................................................25, 28 Geneva Convention Relative to the Protection of Civilian Persons in Time of War .................5, 6 Geneva Convention Relative to the Treatment of Prisoners of War ......................................5, 6, 7 International Convention on the Elimination of All Forms of Racial Discrimination............16, 17 International Covenant on Civil and Political Rights..................................................................5, 6 Protocol I to the Geneva Conventions 1977............................................................................7, 8, 9 Protocol II to the Geneva Conventions 1977................................................................................10 Statute of the International Court of Justice....................................................................................1 Vienna Convention on the Law of Treaties...................................................................................25 European Convention on Human Rights...........................................................................16, 17, 18 Hague Convention 1970................................................................................................................20 Montreal Convention 1971............................................................................................................23 Rome Convention 1988.................................................................................................................29 vi

International Convention for the Suppression of the Financing of Terrorism...............................25 The Geneva Conventions of 1949...28, 29 United Nations Resolutions and other Documents Charter of the United Nations..1 U.N. General Assembly Resolution 49/60 (1994)...3 U.N. General Assembly Resolution 59/191 (2004).....3 U.N. General Assembly Resolution 3074 (1973)4 U.N. Security Council Resolution 1368 (2001).17 Meeting Record Associated with S.C. Resolution 1368 (2001)....17 U.N. Security Council Resolution 1373 (2001).17 Meeting Record Associated with S.C. Resolution 1373 (2001)17 U.N. Security Council Resolution 1526 (2004).17 Meeting Record Associated with S.C. Resolution 1526 (2004)....17 U.N. Security Council Resolution 1566 (2004).....18 Meeting Record Associated with S.C. Resolution 1566 (2004)18 U.N. Security Council Resolution 1617 (2005).....................17 vii

Meeting Record Associated with S.C. Resolution 1617 (2005)17 Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, U.N. Doc. A/8052 (1970)23 Working Group on the International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (1996)..23 U.N. General Assembly Resolution 2383 (1968)..16 U.N. General Assembly Resolution 2395 (1968)..16 U.N. General Assembly Resolution 2508 (1969)..15 U.N. General Assembly Resolution 2621 (1970)..14 U.N. General Assembly Resolution 2652 (1970)..13 U.N. General Assembly Resolution 2678 (1970)..12 U.N. General Assembly Resolution 2707 (1970)..12 U.N. General Assembly Resolution 2795 (1971)..12 U.N. General Assembly Resolution 2796 (1971)......11 U.N. General Assembly Resolution 2871 (1971)..12

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International Cases and Arbitral Decisions Case Concerning Certain Criminal Proceedings in France (France v Congo), (Judgment) [2003] ICJ .........30 Case Concerning the Armed Activities on the Territory of the Congo (Congo v Rwanda), (Judgment) [2006] ICJ...24 Case Concerning Border and Transborder Armed Actions (Nicaragua v Honduras), (Judgment) [1988] ICJ16 Case of Findlay v United Kingdom, (Judgment) [1997] European Court of Human Rights, ECHR Case Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), (Preliminary Objections, Judgment) [2011] ICJ...17 Case Concerning the Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), (Judgment) [2009] ICJ..22 Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (2 October 1995)23 Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (31 January 2000)...23 Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (26 January 2000)...23 Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (15 July 1999).23 Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (11 November 1999)...23 ix

Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (7 May 1997)..23 Cyprus v Turkey (Preliminary Objections, Judgment) European Court of Human Rights 35 E.H.R.R. 30 (10 May 2001)..24 Incal v Turkey (Judgment) European Court of Human Rights Series C No 41/1997/825/1031 (9 June 1998)..17

Municipal Cases and Statutes European Court of Human Rights, Human Rights Act 1998 (adopted 9 November 1998)..16 Treatises and Other Books Lang, Jr. A, Beattie A.R. (eds), War, Torture and Terrorism: Rethinking the Rules of International Security (Routledge 2009)...14 Drumbl M, Atrocity, Punishment, and International Law (Cambridge University Press 2007)...13 Burchill R, White N, Morris J (eds), International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge University Press 2005)..27 Provost R, International Human Rights and Humanitarian Law (Cambridge University Press 2002)..17 Henckaerts J, Beck L. D., Customary International Humanitarian Law (vol. 1, International Committee of the Red Cross 2005)....18 x

Articles and Essays Harries J, Contextualizing Torture: Rules and Conventions in the Roman Digest in Anthony F. Lang, Jr. and Amanda Russell Beattie (eds), War, Torture and Terrorism: Rethinking the Rules of International Security (Routledge 2009). 41...6 May L, International Rules, Custom, and the Crime of Aggression in Anthony F. Lang, Jr. and Amanda Russell Beattie (eds), War, Torture and Terrorism: Rethinking the Rules of International Security (Routledge 2009). 155, 157.6 Barnes R, Of Vanishing Points and Paradoxes: Terrorism and International Humanitarian Law in Richard Burchill, Nigel D. White, and Justin Morris (eds), International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge University Press 2005). 132, 1405 Rowe P, The Application of the European Convention on Human Rights during an International Armed Conflict in Richard Burchill, Nigel D. White, and Justin Morris (eds), International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge University Press 2005). 190.16 Bentz N, The Fundamental Principles Governing International Relations (2009). 2-6,7,8...15

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STATEMENT OF JURISDICTION The Republic of Marsala (Marsala) and the State of Varese (Varese) hereby agreed to submit the present dispute to the International Court of Justice (ICJ) in accordance with Articles 36 (1) and 40 (1) of the Statute of the Court. As per Article 36, the jurisdiction of the Court comprises all cases that the Parties refer to it. Applicant submits to the jurisdiction of the Court.

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QUESTIONS PRESENTED I. Whether the apprehension and rendition of Jerica Teng and other Marsalan citizens was a violation of Marsalas sovereignty and in contravention of international law. II. Whether the subsequent detention and treatment of Jerica Teng and other Marsalan citizens violated international law. III. Whether Vareses prosecution of the detained Marsalan citizens before the Varese Military Commission, including Jerica Tengs prosecution for conspiracy, arson, and murder, violates international law. IV. Whether Marsalas exercise of jurisdiction over former President Pido and General Jeron T to prosecute them in Marsala for crimes committed against Jerica Teng and other Marsala citizens is consistent with international law.

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STATEMENT OF FACTS The Creation of Marsala and Varese After the dissolution of the Kingdom of Lucca in 1970, two independent states were formed, namely Marsala and Varese. These two states are populated by two undistinguishable ethnic groups: Brendese and Lecce. Marsala has Leccen majority and Brendesen minority while Varese has Leccen minority and Brendesen majority. The Leccen population in Varese has lived in the Upland Plateau which is a self-contained land and makes up to 20% of Varese with a total population of 25,000; it rely mostly to the minerals present in the area since it is not agricultural-friendly. For many years, the Leccens have expressed their concerns regarding their exclusion in economic and cultural advancement of the Brendesen population in Varese. The differences between the two ethnic groups collected in a 2000 census data include the disparities in the wellbeing of Leccens and Brendesens. However, these pleas were denied by the changing Varesen government. Leccens Advancement and Protection Society (LAPS) A social and civic organization emerged in the Upland Plateau consisting of the Leccen population known as the Leccens Advancement and Protection Society (LAPS). By 2005, LAPS has three political factions and two of them are (1) the most conservative faction, which tries to participate into the Varesen political system, and; (2) the most radical wing known as the Independent Leccens Solidarity Association (ILSA). It is reported that LAPS receives financial assistance from the Government of Marsala which is used for charitable and educational projects.

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Jerica Teng a Marsalan national governed LAPS since 1985. Teng was born in 1962 and while growing up spent summers in the Upland Plateau. She graduated from Varese National University School of Law and has been awarded with various prizes for her advocacy. The Pursuit of Self-Determination By 2006, ILSA was reported to have little progress on achieving their goal; these include disobedience of the government, strikes and protests in the coal mines of the Upland Plateau which affects the national economy. Military units were deployed throughout the country for safety reasons; the 373rd Infantry Battalion or the Enforcers were stationed in the Upland Plateau commanded by Colonel Jeron T., an ethnic Brendesen. From February 2006, commotions were reported to be rising in the Upland Plateau between the Leccens and the Enforcers and peace was never achieved. By January 2007, Jerica issued a statement focusing on self-determination that was disseminated throughout the Varesen newspaper. On the same month, the Brendesen Church situated in the Upland Plateau was set ablaze which is the first operation made by the ILSA. The 1st operation was followed by the same burning of cultural and religious sites in the Upland Plateau. Jerica remained silent for the said violent acts. The most drastic attack of ILSA was in the Shrine of the Nine Temples which is located in the village of Pisa. The shrine is supervised by the Committee of Five Genius. Since January 2007, the Enforcers are also stationed nearby to keep it secure. On February 2007, ILSA sent a message to the Chairman of the Committee of Five Genius warning them of the ILSAs demonstration starting at 2100. Unfortunately, the message was written in Leccen language and was not understood until 8:00pm. The Shrine was burned and all the five Geniuses died xv

including 15 security staffs. The Varesen President declared seven days of mourning. Jerica also issued a statement regarding the incident. Varese considered the actions of ILSA as terrorist attacks, thus reprimanding Marsalan Government to surrender Jerica to Varese. On March 2007, Varesen President announced the total commitment of his government to bring Teng and LAPS to justice, the implementation of Protection of the State Act 1980, the establishment of a Military Commission and empowerment of the 373rd Battalion under Colonel Jeron T. A Military Commission has features that do not meet the international standards of due process of law. The Capture of Jerica Teng and Other LAPS Members By April 2007, Colonel Jeron announced that Jerica was being held in custody at a secret location and confessed her involvement in the terrorist attacks. She and the other members of LAPS were detained in Camp Archers, a military and police training facility of Varese located in Forli. On the same month, the Marsalan Prime Minister expressed outrage over Vereses actions including the illegal abduction of civilians in the Marsalan territory. One detainee escaped from Camp Archer named Kibo, claiming to be a Marsalan citizen reported to the Forli police about the conditions inside Camp Archer which he described as several levels beyond hell. He also stated that Teng and other Marsalan citizens were being detained inside experiencing the same situation. Forli policemen inspected Camp Archer that same month and found 20 individuals locked in a storehouse. The next day, Forli demanded the immediate closure of Camp Archer, in which Varese did not protest. Meanwhile, the story of Kibo went throughout the press reports. Marsalan Government protested to Varese on the violation of its territory and kidnapping of its citizens. Varese made no xvi

response. On April 26 2007, Teng and 14 other detainees were transferred to the custody of the Varese Military Commission in which Jerica was charged with various crimes. Her trial was scheduled to begin in May 2008. Varesen President promoted Colonel Jeron T to the rank of General for his accomplishments but he retired from the military a week after. Varesen President Pido on the other hand resigned from his office due to health problems therefore, making the Vice President Jarelan Tampo the new President of Varese. The Arrest of General Jeron T and Former President Pido On July 2007, the Marsalan national police raided a Brendesen restaurant located in Metropolis. Jeron T was in the restaurant and he was taken into custody. According to the Marsalan Attorney, General Jeron has been charged with offenses under the Torture Convention which is implemented in the Marsalan Statutes. Furthermore, former President Pido had been issued a warrant of arrest as a co-conspirator and that a request was sent to the INTERPOL for an international warrant. Knowing this, the government of Varese instantly protested against Marsala, demanding the immediate release of Jeron and the cancellation of the arrest warrant for the former President adding that it violates the doctrine of head of state immunity. Marsalan Foreign Minister responded to the protest stating that the nature of their crimes were serious and demanded for the repatriation of Jerica and the other members of LAPS. With the increasing tension between the two countries, they have agreed to resolve their dispute peacefully to the International Court of Justice for adjudication.

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SUMMARY OF PLEADINGS I. The apprehension and rendition of Jerica Teng and other Marsalan citizens was a violation of Marsalas sovereignty and in contravention of international law. Varese had clearly violated its treaty obligation before the United Nations Charter to refrain from using threat or force upon illegally entering the Marsalan territory. The principle of sovereign equality and respect to all independent states had long been established in international law provided under several treaties especially in the United Nations Charter. At all relevant times, Marsala and Varese have been member states of the United Nations.

II.

The subsequent detention and treatment of Jerica Teng and other Marsalan citizens violated international law. Acts of torture committed by Varesen authorities against Jerica Teng, Kibo and other

Marsalan citizens as well as other nationalities detained in Camp Archer, a detention facility operated by Varese, violated specific provisions laid down in Protocol I to the Geneva Conventions of 1977, Geneva Convention Relative to the Treatment of Prisoners of War, and the International Covenant on Civil and Political Rights. Torturous acts committed by the Varesen government against Jerica Teng and other Marsalan citizens upon the latter individuals illegal capture within the Marsalan territory, had violated specific provisions stipulated under Geneva Convention Relative to the Treatment of Prisoners of War, Protocol I to the Geneva Conventions of 1977, and the International Covenant on Civil and Political Rights, which itself is a party to the aforementioned conventions. xviii

III.

Vareses prosecution of the detained Marsalan citizens before the Varese Military Commission, including Jerica Tengs prosecution for conspiracy, arson, and murder, violates international law. On the matters concerning the internationally settled standards of detention, Article 10 of

the 1966 International Convention on Civil and Political Rights provides principles applicable to the latter criterion of keeping an individual under certain custody. The article specifically provides obligations for States to take measures that will ensure the humane conditions of the detainees. This obligation also covers the exclusion of cruel, inhuman and degrading treatment of the detainees. This is also supported by Article 7 of the International Covenant on Civil and Political Rights which aims on protecting the dignity and physical integrity of the people.

IV.

Marsalas exercise of jurisdiction over former President Pido and General Jeron T to prosecute them in Marsala for crimes committed against Jerica Teng and other Marsala citizens is consistent with international law. Marsalan Courts have jurisdiction to prosecute offences punishable under Marsalan

criminal law where those offences have been committed within the Marsalan territory. Marsalan criminal law is dominated by the principle of territoriality, since its primary purpose is to provide punishments for offences committed on Marsalan territory, the situation whereas it could be classified as an offence committed within the territory is if one of the elements constituting the offence took place there. In this case, it is the illegal entry of Varesen authorities within the Marsalan territory without having the permission of the latter as well as the illegal capture of xix

Jerica Teng and other Marsalan citizens. Comparing the present case with France v Congo, Marsalan courts same with French courts as provided by case law, may have jurisdiction because of the Marsalan nationality of one or more of the victims which are Jerica Teng and other LAPS members which is known as passive personal jurisdiction.

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PLEADINGS ______________________________________________________________________________ I. THE ARREST OF JERICA TENG AND OTHER MARSALAN CITIZENS WAS AN INFRINGEMENT OF MARSALAS SOVEREIGNTY AND IS IN BREACH OF INTERNATIONAL LAW It has been an established ruling within the United Nations, wherein Marsala and Varese are both member states to act in accordance with the basic principle of sovereign equality among all its Members and to renounce the threat or use of force against the territorial integrity of any state.1 Varese had clearly violated its treaty obligation before the United Nations Charter to refrain from using threat or force upon illegally entering the Marsalan territory [A]. Moreover, Varese does not possess any type of universal jurisdiction to arrest Jerica Teng and other Marsalan citizens within the Marsalan territory [B]. A. Varese had violated its treaty obligation before the United Nations Charter to refrain from using threat or force upon illegally entering the Marsalan territory The principle of sovereign equality and respect to all independent states had long been established in international law provided under several treaties especially in the United Nations Charter. At all relevant times, Marsala and Varese have been member states of the United Nations. On April 3, 2007, Vareses Colonel Jeron T announced at a press conference that his men had successfully captured Jerica Teng and other Marsalan citizens after being discovered in a village 25 kilometers from the frontier, inside Marsala. Clearly, Varese had violated Marsalas sovereignty and territorial integrity by unlawfully crossing the Marsalan borders. 1

Therefore, Varese had breached important international principles covered under Article 2 paragraphs 1 and 4 stipulated under the United Nations Charter, which itself is a party. The article states that the Organization and its Members, in pursuit of the purposes laid down in Article 1, shall act in accordance with the following Principles: 1. The Organization is based on the principle of sovereign equality of all its Members.; 4. All members shall refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Furthermore, the present case was well represented in the case law, perhaps most notably in the expression of the equality of States by the Republic of the Congo in France v Congo.2 In France, the Republic of the Congo upheld that the exercise of authority by a State into another Stat breaches Principles laid down under the United Nations Charter.3 B. Varese does not possess any type of universal jurisdiction to arrest Jerica Teng and other Marsalan citizens within the Marsalan territory In terms of the grounds provided by international law for a State to exercise jurisdiction over an individual from another State, Varese contravened certain provisions laid down under the Geneva Convention IV of 1949 [1]. Moreover, Varese violated Jerica Teng and the other Marsalan citizens right to a fair trial, upon illegally arresting them without having any previous court trial [2]. ___________________________ 1 United Nations Charter, (1945) (UN Charter) art 2 (1) (4)
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[2003] 1 ICJ France par. 2 (ICJ) 2

1. Varese contravened certain provisions laid down under the Geneva Convention IV of 1949 Comparing the provisions under the European Convention on Human Rights (ECHR), it is suggested that the actions of the armed forces of a state will bring persons located in another state within the jurisdiction when they are in an area under the effective control of that state (whether through the occupation of territory or otherwise) or where they come under the physical control of those forces. This stipulation is envisaged in Articles 2 to 11 of ECHR.4Thisinterpretation is also consistent with Geneva Convention IV 1949, Article 4. The armed forces of the state must, in other words, have effective control over foreign territory or effective control over a foreign national before subjecting the latter under its jurisdiction.5 In the event of April 3, 2007 upon the announcement operated by Vareses Colonel Jeron T of Jerica Teng and other Marsalan citizens capture within the Marsalan territory, it is clear that Vareses utilization of its jurisdiction over the aforementioned individuals is illegal and had breached important rulings agreed upon in international law.

___________________________ 4 European Convention on Human Rights, (2010) (ECHR) art 2-11


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Peter Rowe, The Application of the European Convention on Human Rights during an

International Armed Conflict in Richard Burchill, Nigel D. White, and Justin Morris (eds), International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge University Press 2005) 190.

2. Varese violated Jerica Teng and other Marsalan citizens right to a fair trial upon illegally arresting them without any previous court hearing As ordered under Article 30 of the Hague Regulations annexed to the Hague Convention IV 1907, the armed forces of a country may capture an alleged suspect provided that he or she already underwent a previous court examination and should not be punished without previous trial 6 II. THE SUBSEQUENT DETENTION AND TREATMENT OF JERICA TENG AND OTHER MARSALAN CITIZENS VIOLATED INTERNATIONAL LAW Acts of torture committed by Varesen authorities against Jerica Teng, Kibo and other Marsalan citizens as well as other nationalities detained in Camp Archer, a detention facility operated by Varese, violated specific provisions laid down in Protocol I to the Geneva Conventions of 19777, Geneva Convention Relative to the Treatment of Prisoners of War8, and the International Covenant on Civil and Political Rights9 [A]. In addition, Vareses imposition of its legal jurisdiction over Jerica Teng and other Marsalan citizens as manifested through the latter individuals detention is illegal as established in international law [B]. A. Acts of torture committed by Varesen authorities against Jerica Teng, Kibo, and other Marsalan citizens as well as other nationalities held as detainees within Camp Archer is in violation of international law Torturous acts committed by the Varesen government against Jerica Teng and other Marsalan citizens upon the latter individuals illegal capture within the Marsalan territory, had violated

specific provisions stipulated under Geneva Convention Relative to the Treatment of Prisoners of War [1], Protocol I to the Geneva Conventions of 1977 [2], and the International Covenant on Civil and Political Rights [3], which itself is a party to the aforementioned conventions.

1. Varese violated its treaty obligations under the Geneva Convention Relative to the Treatment of Prisoners of War It has been stated that on April 12, 2007, Kibo, who claimed to be a citizen of Marsala and a member of LAPS, appeared before the Forli civilian police and reported the treatment of the Varesen authorities towards their captured group. Kibo reported that those detained people, including him and their leader Jerica Teng, had been stripped and kept partially clothed, were provided inadequate food and water, were subject to intermittent hanging by the wrist from chains, and were exposed to continuous bright light, uncomfortably cold cell temperatures, and loud discordant music. Also, according to the medical examination performed by the Forli doctors, Kibo was malnourished and sleep-deprived and had bruises around his wrists, but that he had incurred no injuries likely to be permanent. The following day, Forli policemen were allowed access inside the storehouse where the LAPS members were detained and found 20 individuals in varying states of undress, most of them appearing to be disoriented and confused. Given these statements, it is clear that the Varesen authorities have violated international law, as they had treated said detainees with conditions that are prohibited as stated in the following conditions under the Geneva Convention Relative to the Treatment of Prisoners of War. 5

The document refers to Prisoners of War as those who are: 1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. 2. 3. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements And therefore shall be treated according to the following provisions: Article 13: Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Article 17: No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

Article 20: The Detaining Power shall supply prisoners of war who are being evacuated with sufficient food and potable water, and with the necessary clothing and medical attention. The Detaining Power shall take all suitable precautions to ensure their safety during evacuation, and shall establish as soon as possible a list of the prisoners of war who are evacuated. Article 26: The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies. Account shall also be taken of the habitual diet of the prisoners. Sufficient drinking water shall be supplied to prisoners of war. The use of tobacco shall be permitted. Prisoners of war shall, as far as possible, be associated with the preparation of their meals; they may be employed for that purpose in the kitchens. Furthermore, they shall be given the means of preparing, themselves, the additional food in their possession. Article 27: Clothing, underwear and footwear shall be supplied to prisoners of war in sufficient quantities by the Detaining Power, which shall make allowance for the climate of the region where the prisoners are detained. Uniforms of enemy armed forces captured by the Detaining Power should, if suitable for the climate, be made available to clothe prisoners of war. 8 2. The acts of torture committed by Varese against Jerica Teng, Kibo, and other Marsalan citizens as well as other nationals violated its treaty obligation under Protocol I to the Geneva Conventions of 1977 The State of Varese had violated Article 75 referring to the Fundamental Guarantees of Protocol I to the Geneva Conventions of 1977, specifically section 2 [a]; section 7 [b]; and section 5 [c]. 7

a. Varese had violated Article 75 Section 2 of Protocol I to the Geneva Conventions prohibiting any acts of torture As stated under Article 75 pertaining to the Fundamental Guarantees section 2 of the Protocol, the following acts are and shall remain prohibited at any time and in any place, whether committed by a civilian or by military agents: (a) Violence to life, health, or physical or mental well-being of persons in particular: (ii) Torture of all kinds, whether physical or mental. 7 Citing the aforementioned provisions and evaluating the event that happened in April 12 2007, the experiences narrated by Kibo, a Marsalan citizen who escaped from Camp Archer, claiming that he and the other detainees including Jerica Teng had been undergoing the following: 1. Had been stripped and kept partially clothed; 2. Were provided inadequate food and water; 3. Were subject to intermittent hanging by the wrists from chains; and 4. Were exposed to continuous bright light, uncomfortably cold cell, and loud discordant music. It is clear that Varese had violated the provisions established under article 75 of the Protocol, which itself is a party. Moreover, this established norm of protecting human rights and countering any acts of torture or the threat to use it was absolutely contravened by the Varesen government as was clearly reflected through the manifesto or proclamation of Colonel Jeron T as Commanding Officer of the 373rd Infantry Battalion dated 15 March 2007, which is Vareses public policy as confirmed by the countrys president, President Pido during a press conference. 8

Colonel Jeron T stated that: The Enforcers are prepared and they are hereby authorized to engage in the following practices with respect to persons on suspicion that they have participated or intend to participate in terrorist acts: deprivation of sleep, clothing, and food (short of actual starvation); subject to extreme of heat and cold; forced adoption of stress positions; and interrogation techniques (including prolonged and intense interrogation) that may involve the infliction of non-lethal pain. The Colonel even added that aforementioned measures of law enforcement are not prohibited by Varese law or any international agreement binding in Varese. Evidently, the government of Varese did not comply with its treaty obligations, for it was historically stated that upon the independence of Varese and Marsala after the dissolution of Lucca, the State of Varese had signed and ratified the Geneva Conventions of 1949 and its two Additional Protocols. b. Jerica Teng and the other detainees held by Varese in Camp Archer was not treated humanely, therefore it is in violation of Article 75 Section 4 of the Protocol Despite the participation of the said insurgents captured by the Varesen Military who do not take a direct part or who have ceased to take part in the hostilities, whether or not their liberty has been restricted, are still entitled to have respect for their person as a human being, honour, convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction and is prohibited to order that there shall be no survivors. Upon the illegal capture and detention of Jerica Teng and other individuals by the Varesen government, specifically Kibo who was able to escape from Camp Archer, it is undeniable that Varese had violated the following provisions laid under Article 75 Section 4 of the Protocol:

a. Violence to the life, health and physical or mental well-being of persons in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b. Collective punishments; c. Taking of hostages; d. Outrage upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; e. Threats to commit any of the foregoing acts. c. The detainees health and well-being was not secured and was bypassed by the Varesen authorities violating Article 75 Section 7 of the Protocol Regarding the matters on the wounded and sick during an armed conflict, the detained prisoners shall be provided respect and protection. The persons aforementioned shall have, to the same extent as the local civilian population, be provided with food and drinking water and be afforded with safeguards as to matters of health and hygiene as well as the protection against the rigours of the climate and the dangers of the armed conflict. It was evident that the Varesen authorities was not able to attend to its legal obligations and was not able to execute the proper legal procedures in upholding the protection of human rights of all human beings. 3. Violation of Varese in relation to its treaty obligations under the International Covenant on Civil and Political Rights, wherein itself is a state party Governments have the responsibility to respect and protect the people under detention and must protect the human rights of these individuals. Varese violated the rights of its detainees whom mostly were captured and detained illegally and was denied to be treated with humanity 10

and with respect for the inherent dignity of the human person. On the matters concerning the internationally settled standards of detention, Article 10 of the 1966 International Convention on Civil and Political Rights provides principles applicable to the latter criterion of keeping an individual under certain custody. The article specifically provides obligations for States to take measures that will ensure the humane conditions of the detainees. This obligation also covers the exclusion of cruel, inhuman and degrading treatment of the detainees. This is also supported by Article 7 of the International Covenant on Civil and Political Rights which aims on protecting the dignity and physical integrity of the people.9 Building on the conjectures in progress with the subsequent events recorded concerning the deplorable conditions of the detainees within the Varesen-operated detention facility, Camp Archer in Forli, as what was narrated by Kibo, a Marsalan citizen, and even described it as several levels beyond Hell, Varese had therefore violated not only it treaty obligations but most importantly is the international communitys commitment to prohibit the use or threat of torturous acts against individuals for humane treatment is one of the basic rulings in international relations. B. Vareses imposition of its legal jurisdiction over Jerica Teng and other Marsalan citizens as manifested through the latter individuals detention, is illegal as established in international law As specified and required under Article 75 Section 4 of Protocol I to the Geneva Conventions, No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized 11

principles of regular judicial procedure, which include the following: (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused beforehand; (b) during his trial all necessary rights and means of defense; (c) Anyone charged with an offence is presumed innocent until proven guilty according to law; (f) No one shall be compelled to testify against himself or to confess guilt; (g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (j) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.7

___________________________
6

Hague Regulations annexed to the Hague Convention IV, (1907) art 30 Protocol I to the Geneva Conventions, (1977) art 75 (2) (4) (5) (7) Geneva Convention Relative to the Treatment of Prisoners of War, (1950) art 13, 17, 20, 26, 27 International Covenant on Civil and Political Rights, (1966) art 10

12

The aforementioned regulations were not abided upon by the Varesen government after instituting a Military Commission to hear the case of Jerica Teng and other LAPS Members. The latter strictly prohibits the freedom of the defendant to use her own lawyer but rather, provide her with a military lawyer. With regards to clause (f), it was a recorded event throughout this armed conflict that Jerica Teng after being illegally caught within the Marsalan territory, was interrogated by the military troops commanded by Colonel Jeron T and publicized that Jerica Teng had admitted of her direct involvement with the activities of LAPS.

III.

VARESES PROSECUTION OF THE DETAINED MARSALAN CITIZENS BEFORE THE VARESE MILITARY COMMISSION, INCLUDING JERICA TENGS PROSECUTION FOR CONSPIRACY, ARSON, AND MURDER, VIOLATES INTERNATIONAL LAW

It has been established in international law that instituting a military court, in this case, it is Vareses Military Commission, would not lead to a fair trial for the State concerned will not be able to provide for an independent and impartial tribunal to try those who have been brought within its jurisdiction [A]. As dictated by the regulations and guidelines of international law, Jerica Teng and the other LAPS members could not be accused of conspiracy and arson related to terrorist activities, and therefore could not be arrested and detained by the Varesen authorities for LAPS is not a terrorist organization [B]. Moreover, Jerica Tengs prosecution of murder is invalid and legally unfair for it is provided under international humanitarian law that civilians may be killed lawfully provided that it is only incidental [C].

13

A. Vareses Military Commission will not provide a fair and impartial tribunal to try and hear the cases accused to Jerica Teng and the other LAPS members Citing the European Convention on Human Rights (ECHR), it is suggested that the actions of the armed forces of a state will bring persons located in another state within the jurisdiction when they are in an area under the effective control of that state (whether through the occupation of territory or otherwise) or where they come under the physical control of those forces. This interpretation is consistent with Geneva Convention IV 1949, Article 4. The armed forces of the state must, in other words, have effective control over foreign territory or effective control over a foreign national.10 Geneva Convention III 1949, Article 96, requires that the prisoner of war be told of an offence of which he is accused, be given an opportunity to explain himself, to call witnesses and to have the services of a qualified interpreter. Article 75 of Additional Protocol I lays down substantial fair trial procedures, which are in many ways similar to ECHR, Article 6.11 Under international humanitarian law, the state will need to ensure that it is able to provide an independent and impartial tribunal to try those who have been brought within its jurisdiction. This may prove difficult if the court is, as it is likely to be, a military one. This scenario was proven in Findlay v United Kingdom, Incal v Turkey and Cyprus v Turkey.12

14

B. The Leccens Advancement and Protection Society (LAPS) is not a terrorist organization but rather, is a national liberation movement that aims to promote the rights of the Leccen minority in Varese and that the State of Varese had violated certain provisions covered by the International Convention on the Elimination of All Forms of Racial Discrimination. The Leccens Advancement and Protection Society (LAPS) is not a terrorist organization but rather, is a national liberation movement that aims to protect and promote the rights of the Leccen minority in Varese [1] and that the State of Varese, failing to grant the Leccen minority within its territory the basic economic, cultural, social, and political rights compared to the Brendesen majority, had therefore, violated certain provisions covered by the International Convention on the Elimination of All Forms of Racial Discrimination.

1. The Leccens Advancement and Protection Society (LAPS) is not a terrorist organization, but rather, is a national liberation movement that aims to protect and promote the rights of the Leccen minority in Varese Considering the lack of economic, social, and political representation of the Leccen minority in Varese, LAPS and its members are entitled to resort to armed force to realize their right to self-determination supported by international law [a]. a. LAPS and its members are entitled to resort to armed force to realize their right to Self-Determination Established customary international law allows ethnic and racial groups to resort to the use of 15

armed force as stated under the International Convention on the Elimination of All Forms of Racial Discrimination of 1969 which declares that Racial groups not represented in government and are forcibly denied the right to self-determination are entitled to resort to armed force to realize their right to self-determination.13 However, as affirmed in the aforementioned article, one prerequisite must be fulfilled: the racial groups should have been restricted and forcibly denied by the involved government of their economic, social, cultural, and political rights.

_________________________
10

Peter Rowe, The Application of the European Convention on Human Rights during an

International Armed Conflict in Richard Burchill, Nigel D. White, and Justin Morris (eds), International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge University Press 2005)
11

Ibid. See., e.g., Findlay v United Kingdom (1997) 24 EHRR 221; Incal v Turkey (2000) 29 EHRR

12

449; Cyprus v Turkey (2002) 35 EHRR 731 at para. 358.


13

International Convention on the Elimination of All Forms of Racial Discrimination (1969) 16

Such stipulation has been present in the current circumstance: On at least eight occasions between 1985 and 2001, the Varesen Parliament espoused resolutions that were against the demand of the Upland Plateau for political autonomy. In these series of parliamentary events, LAPS members in the legislature, which are only 12 out of the 200 total seats voted against those declarations. Moreover, on February and December 2006, there were six events of disruptions in the Upland Plateau, the historical and traditional dwelling place of the Leccen minority in Varese, wherein members of the Varesen governments 373rd Infantry Battalion discharged weapons. The casualties ranged between 100 and 300 ethnic Leccens killed, and between 750 and 1,200 are injured. The abovementioned prerequisite being fulfilled, consequently grant LAPS and its members to resort to the use of armed force to attain their right to selfdetermination. LAPS is not a terrorist group, instead, it is a movement that emerged after the dissolution of the Kingdom of Lucca. LAPS was created as a social and civic organization, in their early days they sponsored the study of Leccen culture and language, and supported hospitals, schools and old-age homes to serve the Leccen population of Varese. In this case, Marsalas financial assistance to LAPS would not be in conflicting to Paragraph 1.a, and 1.c of S/Resolution 1617 of 2005. Contents of SC Resolution S/RES/1617 (2005):14 1. Decides that all States shall take the measures as previously imposed by paragraph 4 (b) of resolution 1267 (1999), paragraph 8 (c) of resolution 1333 (2000), and paragraphs 1 and 2 of resolution 1390 (2002) with respect to Al-Qaida, Usama bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them, as 17

referred to in the list created pursuant to resolutions 1267 (1999) and 1333 (2000) (the Consolidated List): (a) Freeze without delay the funds and other financial assets or economi c resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons benefit, by their nationals or by any persons within their territory.

C. Jerica Tengs prosecution of murder is invalid and legally unfair for it is provided under international humanitarian law that civilians may be killed lawfully provided that it is only incidental International humanitarian law accepts that civilians may be killed lawfully provided that the attacks on combatants or military objectives are not expected to cause incidental loss of civilian life which would be excessive in relation to the concrete and direct military advantage anticipated15 A state is clearly under an obligation to treat protected persons, such as prisoners of war or civilians, humanely16

_________________________
14

S/RES/1617 (2005)

Additional Protocol I 1977, Article 51 (5) (b)


15

See Geneva Convention III 1949, Article 13; Geneva Convention IV 1949, Article 27 Additional Protocol I 1977, Article 51 (5) (b) 18

16

(c) Prevent the direct or indirect supply, sale or transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities;

The acts made by the Leccens Advancement and Protection Society (LAPS) cannot be considered as terrorism because: (a) The group didnt intend to hurt anyone in any of their attacks. In fact, they sent a message to the Committee of the Five Geniuses informing them about their planned attack to the Shrine of the Nine Temples Security Council Resolution 1566 (2004)17 2. Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no _________________________
17

Security Council Resolution 1566 (2004) 19

circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature; (b) There is no universal definition of what terrorism is. The attacks committed by the group can be called a revolution because what the group is fighting for is liberty and freedom. Based from Multilateral: Protocol Additional to the Geneva Conventions of 12 August 1949. 1. The Leccens of Varese have expressed concerns that they were being precluded from economic and cultural advancement by the Brendesen majority, which is against the Civilian Population, Article 13: Protection of the Civilian Population. Although the Varesen government from different political parties has consistently denied the allegations made by the Leccens of Varese regarding any legal or institutional discrimination against them, census data collected in year 2000 proves that significant disparities in the wellbeing, may it be regarding in literacy (education), salary (economics), or life expectancy (health), is more in favour to the Brendesen. The Protection of the Civilian Population of Article 13 was not observed by the Varese government which is dominantly composed of Brendesen ethnic group of about 85% and only 10% for Leccen and 5% for mixed. The Leccen in Varese is still part of the civilian population under the State of Varese. The civilian population and individual civilians shall enjoy general protection against the danger arising from military operations. 1.1 Violation in accordance to Article 13, rule 2 that civilian population of the Leccens in Varese, as well as its individual civilians, shall not be the object of any attack or discrimination The violation of Article 13, rule 2 is shown by the data collected regarding the average 20

annual per capita income of Leccens earn 8,000 Euros, 6,000 lower compared to the Brendesen earning 14, 000 Euros; 66% is the literacy rate of the Leccens (may it be in Brendesen or the Leccen language), 26 % shorter compared to the 92% of adult Brendesen who can read and write in Brendesen (the official language of Varese); and the average life expectancies of female and male of the Leccens in Varese were 52 and 58, 18-20 years shorter compared to the life expectancy of the Brendesen which were 71 and 76 years. RIGHT TO SELF-DETERMINATION: FROM THE 1966 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Article 1.1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources 3. Without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

_________________________
18

International Covenant on Civil and Political Rights art 1, 2

21

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. PART II Article 2. 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 4. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation hasbeen committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; To ensure that the competent authorities shall enforce such remedies when granted. 22

IV.FORMER VARESEN PRESIDENT PIDO AND GENERAL JERON T SHOULD BE PROSECUTED BEFORE A MARSALAN LOCAL COURT FOR CRIMES COMMITTED AGAINST JERICA TENG AND OTHER MARSALAN CITIZENS A. RULES OF MARSALAN LAW WHICH ARE RELEVANT TO THE PRESENT CASE 1. Rules applicable in regard to the jurisdiction of Marsalan Criminal Courts Marsalan Courts have jurisdiction to prosecute offences punishable under Marsalan criminal law where those offences have been committed within the Marsalan territory. Marsalan criminal law is dominated by the principle of territoriality, since its primary purpose is to provide punishments for offences committed on Marsalan territory, the situation whereas it could be classified as an offence committed within the territory is if one of the elements constituting the offence took place there. In this case, it is the illegal entry of Varesen authorities within the Marsalan territory without having the permission of the latter as well as the illegal capture of Jerica Teng and other Marsalan citizens. Comparing the present case with France v Congo, Marsalan courts same with French courts as provided by case law, may have jurisdiction because of the Marsalan nationality of one or more of the victims which are Jerica Teng and other LAPS members which is known as passive personal jurisdiction3. Having its basis with the case law of France v Congo, it is legally concluded that Marsalan law also confers jurisdiction on Marsalan courts in certain matters to prosecute and try principals or accessories in respect of offences committed outside Marsalan territory if the principals are foreigners. Under international law, this is what is commonly knows as universal jurisdiction19 23

Such jurisdiction is in fact subject to two conditions. First, there must in principle be a treaty to which Marsala is a party that provides for that universal jurisdiction and even requires it to be exercised; Second, the person suspected must be on Marsalan territory. The aforementioned conditions have been complied and fulfilled upon by Marsala. For the first condition upon exercising universal jurisdiction, one of the treaties or conventions and without doubt the most important in practice wherein the Republic of Marsala had signed and ratified since becoming an independent state in 1970, is the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment dated 10 December 1984. In conformity with that Convention, Marsalan criminal law confers universal jurisdiction on Marsalan courts in regard to torturous acts, but subordinates that jurisdiction to be legally effective upon the presence of the suspect on national territory the second condition which, moreover, Marsalan law imposes systematically on the exercise of any universal jurisdiction. It should be point out here that the latter condition has been fulfilled. In this case, on 20 July 2007, Marsalan national police raided a Brendesen restaurant in Metropolis, the city with the largest Brendesen population in Marsala, therefore is within Marsalan national territory and took Retired General Jeron T into custody charging him with offences under Marsalan statutes implementing the Torture Convention in connection with the illegal capture and detention of Jerica Teng and other LAPS members in his capacities both as military commander and as legal adviser to Varesen President Pido. ___________________
19

[2003] ICJ CR 2003/21 4. ibid. 24

20

a. Retired General Jeron T and Former Varesen President Pido are both liable for their criminal acts committed on Marsalan soil and against Marsalan Citizens with regards to the violation of the following articles in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Retired General Jeron T and Former Varesen President Pido are both liable for their criminal acts committed on Marsalan soil and against Marsalan Citizens with regards to the violation of the following articles in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. First, Violation in accordance to Article 1 which prohibits any acts of torture and other cruel, inhuman, or degrading treatment or punishment to any person.21 Second, Violation in accordance to Article 2 in which VaresenMilitary forces which was led by Retired General Jeron T and Former Varesen President Pido as their Commander in chief were obliged to take measures in order to prevent any kind of torture and other cruel, inhuman, or degrading treatment or punishment to any person. 1.1. Violation in accordance to Article 1 in which the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief, failed to comply with the Article which led to physical and mental suffering of Ms. Jerica Teng, Kibo, and fourteen (14) other LAPS members. The violation against Article 1 was made when a disheveled and disoriented person ___________________
21

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

art 1, 2, 4, 10, 11, 51, 76 25

identifying himself as Kibo, and claiming to be a Marsalan citizen and a member of LAPS, appeared at a Forli civilian police station near Camp Archer and identified that he said that he had been held for three weeks under conditions that he described as several levels beyond Hell. And stated that there were at least 20 other prisoners at Camp Archer, of whom twelve were fellow LAPS members, including Jerica Teng. 1.2. Violation in accordance to Article 2 in which the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief, for failing to take measures to prevent acts of torture but instead initialized the acts of torture regardless whether physically or mentally. The Violation against Article 2 was made when the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief kidnapped Ms. Jerica Teng and other members of LAPS inside the Marsalan soil and brought them to a place (Camp Archer) and as what Kibo identified as several levels beyond Hell. And as what Kibo said and described that the detainees had been stripped and kept partially clothed, were provided inadequate food and water, were subject to intermittent hanging by the wrists from chains, and were exposed to continuous bright light, uncomfortably cold cell temperatures, and loud discordant music.

26

1.3.

Violation in accordance to Article 4 in which the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief, tortured physically and mentally some members of LAPS who were Marsalan citizens including Ms. Jerica Teng and Kibo even though their acts were not anymore under its criminal law.

The violation was made when a Kibo who was one of the detainees, explained and described every detainees three week experience in Camp Archer in which he identified the experience as several levels beyond Hell. And from his experience, it is clear that the acts done to the detainees (including some members of LAPS who were Marsalan Citizens, Ms. Jerica Teng, and Kibo) by the Varesen Military Forces were not anymore under their criminal law but is an example of torture. 22 1.4. Violation in accordance to Article 10 in which the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief, being understood that Varesen Military Forces are well educated regarding the prohibition against torture with accordance to this Article, still continued to torture some members of LAPS who were Marsalan citizens including Ms. Jerica Teng and Kibo. Assuming that the Military Forces of Varese are well educated during their training regarding the prohibition against torture, the violation was made when they already know that torture is prohibited, but still they continued to torture lots of citizens from Varese and Marsalan and nationals from other countries including Ms. Jerica Teng.

27

b. Retired General Jeron T should be detained, tried and prosecuted in Marsalan soil as well as Former Varesen President Pido should be given an international warrant from the INTERPOL due to their violations regarding on the following Articles of the Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts more commonly known as Protocol I of the Geneva Conventions. Retired General Jeron T should be detained, tried and prosecuted in Marsalan soil as well as Former Varesen President Pido should be given an international warrant from the INTERPOL due to their violations regarding on the following Articles of the Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts more commonly known as Protocol I of the Geneva Conventions. First, Violation of Article 11 which obliges the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief protection of persons who are in power. Second, Violation of Article 51 which obliges the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief to protect the civilian population. Third, Violation of Article 76 which obliges the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief the protection of women. __________________________
22

Ibid.

28

a. Violation of Article 11 in which the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief, fall short to protect the physical or mental health and integrity of person/s who are in power of the adverse party specifically Ms. Jerica Teng who is a Marsalan National and other Nationals from other countries. The violations against the Article was made when Kibo said that Ms. Jerica Teng was also held for three weeks and had been stripped and kept partially clothed, were provided inadequate food and water, were subject to intermittent hanging by the wrists from chains, and were exposed to continuous bright light, uncomfortably cold cell temperatures, and loud discordant music. b. Violation of Article 51 in which the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief, failed to protect citizens not only from Marsalan who were LAPS members but as well as Varesen citizens from Upland Plateau. The violation against the Article was made when Kibo explained that they (including the twelve LAPS members, and Jerica Teng, some Varesen citizens from the Upland Plateau, and a few were nationals of other countries) who were considered as civilians were harmed physically and mentally which made Kibo described the experience as several levels beyond Hell.

29

c. Violation of Article 76 in which the Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander in Chief, came short in taking measures in able to avoid any form of assault to women specifically Ms. Jerica Teng and other LAPS members who were a female23 The violation was made when Kibo said that Ms. Jerica Teng was was also held for three weeks and had been stripped and kept partially clothed, were provided inadequate food and water, were subject to intermittent hanging by the wrists from chains, and were exposed to continuous bright light, uncomfortably cold cell temperatures, and loud discordant music with other detainees. However, it is not yet confirmed until now how many females were detainees but it is not also clear that all detainees were men. Rules governing the conduct of proceedings As compared with the case law France v Congo, the rules governing the jurisdiction of the Marsalan criminal courts in regard to the procedural matters involved in the preparation and conduct of criminal proceedings against Retired General Jeron T and former President Pido can be distinguished in three stages: the first stage which is the preliminary investigation; the second stage which pertains to the judicial investigation, and; the third stage which is formal investigation also known as indictment or inculpation 24 ___________________________
23

Ibid. France v Congo (2003)

24

30

PRAYER FOR RELIEF Marsala respectfully requests the Court to adjudge and declare that: I. Since the capture and arrest of Jerica Teng and other Marsalan citizens was illegal, Vareses government had therefore violated Marsalas sovereignty, territorial integrity and is in violation of international law. II. The subsequent torturous acts committed by Varese against Jerica Teng and other Marsalan citizens upon their detention violated international law. III. The prosecution of the detained Marsalan citizens including Jerica Teng for crimes of conspiracy, arson, and murder before a military court, in this case is Vareses Military Commission, will not provide an impartial and fair trial and is therefore in violation of international law. IV. Former President Pido and Retired General Jeron T can be tried before the courts of Marsala, therefore, the Republic has universal jurisdiction for crimes committed against Jerica Teng and other Marsalan citizens and this is consistent with international law.

31