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TEAM NO.

25
COUNSEL FOR THE PROSECUTION
ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE
2016

WORD COUNT: 9,920

Original: English

Date: 21 February, 2016

THE APPEALS CHAMBER

SITUATION IN PORVOS

The Prosecutions Submission in the Appeal from the Pre-Trial Chambers


Decision on Jurisdiction and Motion to Disqualify one of the Pre-Trial
Chamber Judges

TABLE OF CONTENTS


LIST OF ABBREVIATIONS........................................................................................................... 5
INDEX OF AUTHORITIES ............................................................................................................ 7
Cases ...................................................................................................................................... 7
Articles ................................................................................................................................. 10
Books ................................................................................................................................... 14
Treaties and Conventions ..................................................................................................... 16
Miscellaneous ...................................................................................................................... 17
STATEMENT OF FACTS ............................................................................................................ 20
ISSUES RAISED ......................................................................................................................... 22
SUMMARY OF ARGUMENTS ..................................................................................................... 23
WRITTEN ARGUMENTS ........................................................................................................... 24
I.

OSTYS RECRUITMENT AND USE OF JUVENILE PIRATES

CONSTITUTES A CRIME AGAINST HUMANITY UNDER ART.7 OF THE ICC


STATUTE ........................................................................................................................... 24
A.

The use of juvenile pirates on Porvosian-flagged vessels qualify as attacks

against a civilian population in the territory of Porvos .............................................. 24


i.

OSTYs recruitment and use of juvenile pirates constitutes an attack .............. 24

ii.

The attack occurred on Porvosian territory ........................................................ 25

B.

The consent of the juveniles parents does not preclude the crime of

enslavement .................................................................................................................... 27
C.

The number of child pirates satisfies Art.7s implicit numerosity

requirement ................................................................................................................... 29
D.

OSTY is an entity that is capable of committing crimes against humanity ..... 30


i.

The interpretation and existence of an organization under Art.7(2)(a) is not a

jurisdictional question ................................................................................................. 30


ii.

In any event, OSTY fulfills the requirements of an organization under

Art.7(2)(a) .................................................................................................................... 31
3

II. OSTYS CROSS-BORDER CONTAMINATION OF PORVOSS WATER


SUPPLY CONSTITUTES A WAR CRIME UNDER ART.8(2)(b)(iv) OF THE ICC
STATUTE ........................................................................................................................... 32
A.

The conduct in question occurred on Porvosian territory ................................. 33

B.

The contamination took place in the course of and in furtherance of an

international armed conflict.......................................................................................... 35


i.

OSTY meets the criteria to acquire statehood ..................................................... 35

ii.

OSTYs actions can be attributed to Yunkel ........................................................ 36

C.

The damage caused is widespread, long-term and severe .................................. 38

D.

The damage was excessive in relation to the concrete military advantage

anticipated ...................................................................................................................... 41
i.

OSTYs attack contravenes fundamental principles of humanitarian law........... 41

ii.

In any event, the military advantage anticipated by OSTY is not significant

enough .......................................................................................................................... 42
III. JUDGE HASTY SHOULD NOT BE DISQUALIFIED UNDER ARTS. 40 & 41
OF THE ICC STATUTE .................................................................................................. 43
A.

Yunkel has no locus standi to initiate proceedings of disqualification. ............. 43

B.

J.Hastys opinion does not meet the standard for disqualification ................... 43

CONCLUDING SUBMISSIONS .................................................................................................... 45

LIST OF ABBREVIATIONS

Paragraph

Paragraphs

Art.

Article

Arts.

Articles

AU

African Union

Doc.

Document

ECHR

European Commission on Human Rights

Ed.

Editor

Edn.

Edition

Eds.

Editors

ENMOD

Convention on the Prohibition of Military or Any Other Hostile


Use of Environmental Modification Techniques

et al

And others

EU

European Union

FARC

The Revolutionary Armed Forces of Colombia

ICC

The International Criminal Court

ICJ

International Court of Justice

ICRC

International Committee of the Red Cross

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the former Yugoslavia

Id.

Ibidem

ILC

International Law Commission

J.

Judge

NATO

The North Atlantic Treaty Organization


5

No.

Number

OSTY

Olmic State of Tyvosh and Yunkel

PCIJ

Permanent Court of International Justice

Prof.

Professor

SCSL

Special Court for Sierra Leone

Ser.

Series

UN

United Nations

UNGA

United Nations General Assembly

UNHCHR

United Nations High Commissioner for Human Rights

UNICEF

United Nations Childrens Fund

UNSC

United Nations Security Council

VCLT

Vienna Convention on the Law of Treaties

INDEX OF AUTHORITIES

CASES

EUROPEAN COMMISSION ON HUMAN RIGHTS


1.

W, X, Y & Z v. The United Kingdom, Appl. No. 3435-3438/67

28

(ECHR), Decision of 19 July 1968.

INTERNATIONAL CRIMINAL COURT


1.

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No.ICC-

28, 29, 38,

02/05-01/09.

44

2.

Prosecutor v. Bemba, Case No. ICC-01/05-01/08.

29, 31, 32

3.

Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07.

29, 31, 32,


34, 43

4.

Prosecutor v. Mathieu Ngudjolo Chui, Case No.ICC-01/04-01/07-

34

262.
5.

Prosecutor v. Muthauru et al, Case No. ICC-01/09-02/11 OA 4.

30

6.

Prosecutor v. Ruto et al, Case No. ICC-01/09-01/11 OA3 OA4.

30

7.

Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06.

26, 28, 43,


44

8.

Situation in Democratic Republic of Congo, Case No.ICC-01/04.

34

9.

Situation in the Republic of Cote dIvoire, Case No.ICC-02/11-14.

29, 31, 32,


34

10.

Situation in the Republic of Kenya, Case No. ICC-01/09.

28, 29, 30,


31, 32, 34,
38

11.

The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh

43, 44

Mohammed Jerbo Jamus, Case No. ICC-02/05-03/09.

INTERNATIONAL COURT OF JUSTICE


1.

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v.

26

Belgium) ICJ Rep. 2002 3 [Joint Separate Opinion of Judges


Higgins, Buergenthal and Kooijmans].
2.

Corfu Channel (United Kingdom v Albania), Merits, ICJ Rep 4

37

(1949).
3.

United States Diplomatic and Consular Staff in Tehran (Hostages) 37


(United States v. Iran), ICJ Rep 3 (1980).

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA


1.

Prosecutor v. Akayesu, Case. No. ICTR-96-4-T.

24

2.

Prosecutor v. Gatete, Case No. ICTR-2000-61-T.

30

3.

Prosecutor v. Kajelijeli, Case No. ICTR -98-44A-T.

30

4.

Prosecutor v. Munyakazi, Case No. ICTR-97-36A-T.

30

5.

Prosecutor v. Ndahimana, Case No. ICTR-01-68-T.

30

6.

Prosecutor v. Serugendo, Case No. ICTR-2005-84-T.

30

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA


1.

Prosecutor v. Blaskic, Case No. IT-95-14-T.

31

2.

Prosecutor v. orevi, Case No. IT-05-87/1.

30

3.

Prosecutor v. Gali, Case No. IT-98-29.

30

4.

Prosecutor v. Kordi & erkez, Case No. IT-95-14/2.

30

5.

Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T.

24

6.

Prosecutor v. Perii, Case No. IT-04-81.

30

7.

Prosecutor v. Simi et al, Case No. IT-95-9-T.

30

8.

Prosecutor v. Staki, Case No. IT-97-24.

30

9.

Prosecutor v. Tadic, Case No. IT-94-1-T.

31, 35, 36

10.

Prosecutor v. Vasiljevi, Case No. IT-98-32.

30

PERMANENT COURT OF INTERNATIONAL JUSTICE


1.

The Case of the S.S. Lotus (Turkey v. France) 1927 PCIJ Ser. A
No. 10, 23.

26

OTHERS
1.

Ajay Agarwal v. Union of India [Indian Supreme Court].

26

2.

Alaska v. Jack 125 P.3d 311 (2005) [Alaska Supreme Court].

26

3.

Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, 37


30 ILM 577 (1990).

4.

Board of Trade v Owen (1957) AC 602 [U.K. Court of Appeals].

26

5.

Director of Public Prosecutions v Doot UKHL [1973] 1 All ER

26

940.
6.

DPP v Stonehouse (1977) 2 All ER 909 [U.K. Court of Appeals].

26

7.

Ford v United States, 273 US 593 (1927) [U.S. Supreme Court].

26

8.

Gallo Africa Ltd and Others v. Sting Music (Pty) Ltd and Others

26

2010 (6) SA 329 [South African Supreme Court of Appeal].


9.

Gvk Inds. Ltd & Anr v. The Income Tax Officer & Anr. (2011) 4

26

SCC 36 [Indian Supreme Court].


10.

Iannelli v United States, 420 US 770 (1975) [U.S. Supreme

26

Court].
11.

Opinion No.1 (Conference on Yugoslavia, Arbitration

36

Commission) 3 EJIL 1 (1992).


12.

Prosecutor v. Fofana, Case No. SCSL-04-14-T-796, Trial

28

Chamber Judgment, 192 (October 9, 2007).


13.

Smith, R (on the application of) v Secretary of State for Defence & 26
Anr. (2010) UKSC 29 [U.K. Supreme Court].

14.

Wood pulp, Osakeyhti and ors. v. Commission of the European

26

Communities ECR 5193 ILEC 035 (1988) [Court of Justice of the


European Union].

ARTICLES

1.

A. Coleman, The Islamic State and International Law: An


Ideological Rollercoaster, 5(2) Journal of the Philosophy of
International Law 75 (2014).

10

36

2.

A. Fenton & D. Price, Breaking ISIS: Indonesias Legal Position

36

on the Foreign Terrorist Fighters Threat, 16(1) AUSTRALIAN


JOURNAL OF ASIAN LAW 2 (2015).
3.

A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable

25, 26, 28

on Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF


INTERNATIONAL LAW 411 (2014).
4.

B.C. Moore et al, Survival of Salmonella Enterica in Freshwater,

40

69(8) APPLIED ENVIR. MICROB. 4556 (2003).


5.

C. Thomas, Advancing the Legal Protection of the Environment in

39, 40

Relation to Armed Conflict, 82 NORDIC J. INTL. L. 83 (2013).


6.

C.E. Bellew, Secession in International Law: Could ISIS Become

36

a Legally Recognized State?, 42 OHIO N.U.L. Rev. 239 (2015).


7.

C.S. Jacobsen, Soil Survival of Salmonella and Transfer to

40

Freshwater, 45(2) FOOD RESEARCH INTERNATIONAL 557 (2012).


8.

D. Fleck, The Protection of the Environment in Armed Conflict,

40

82 NORDIC J. INT'L L. 7 (2013).


9.

D. Gaswanga, Does the ICC Have Jurisdiction over the

25, 26

Recruitment and Use of Child Pirates?, 19 ILSA J. Int'l & Comp.


L. 277 (2013).
10.

D. Robinson, Defining 'Crimes Against Humanity' at the Rome

31

Conference, 93 AJIL 43 (1999).


11.

H.R. Williamson, New Thinking in the Fight Against Marine

25, 26, 28

Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF


INTERNATIONAL LAW 335 (2014).
12.

J. Cohan, Modes of Warfare and Evolving Standards of


Environmental Protection under the International Law of War, 15
FLA. J. INTL L. 481 (2002-2003).

11

41, 42

13.

J. Dill, Applying the Principle of Proportionality in Combat

42

Operations, Policy Briefing, OXFORD INSTITUTE OF ETHICS, LAW


AND ARMED CONFLICT, 3 (2010).

14.

J. Lawrence & K. Heller, The Limits of Art.8(2)(b)(iv) of the Rome

40

Statute, 20 GEO. INT'L ENVTL. L. REV. 61 (2008).


15.

J. Wyatt, Law-making at the Intersection of International

39

Environmental, Humanitarian and Criminal Law, 92 INTL. REV.


OF THE RED CROSS 593 (2010).

16.

M. Bothe, The Protection of the Civilian Population and NATO

40

Bombing on Yugoslavia, 12(3) EJIL 531 (2001).


17.

M. Drumbl, Waging War Against the World: The Need to Move

40

from War Crimes to Environmental Crimes, 22 FORDHAM INTL.


L. J. 122 (1999).
18.

M. Halpern, Protecting Vulnerable Environments in Armed

39, 40

Conflict, 51 STANF. J. INTL. L. 119 (2015).


19.

M. Sassoli, Legitimate Targets of Attacks under International

41

Humanitarian Law, Background Paper, HARV. PROG. ON


HUMANITARIAN POLICY AND CONFLICT RESEARCH, 1 (2003).
20.

M.A. Drumbl, Child Pirates: Rehabilitation, Reintegration and

25, 26, 28

Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF


INTERNATIONAL LAW 235 (2014).
21.

M.C. Bassiouni, Crimes Against Humanity: The Case for a

32

Specialized Convention, 9(4) WASHINGTON UNIV. GLOBAL


STUDIES LAW REVIEW 575 (2010).
22.

N. Popovic, Humanitarian Law, Protection of the Environment


and Human Rights, 8 GEO. INT'L ENVTL. L. REV. 67 (1996).

12

40

23.

O. Schachter, The Lawful Use Of Force By A State Against

37

Terrorists In Another Country, 19 ISRAEL YRBK ON HUMAN


RIGHTS 209 (1989).
24.

P. Gleick, Water and Conflict: Fresh Water Resources and

40

International Security, 18(1) INTERNATIONAL SECURITY 79 (1993).


25.

P. Hwang, Defining Crimes Against Humanity in the Rome Statute 29


of the International Criminal Court, 22(2) FORDH. INTL L. J. 457
(1998).

26.

R. Barnbridge, States Due Diligence Obligations with Regard to

36, 37

International Non-State Terrorist Organisations Post-11


September 2011: The Heavy Burden that States Must Bear, 16
IRISH STUD. IN INTL AFFAIRS 103 (2005).
27.

R. Gilman, Expanding Environmental Justice After War, 22 COLO. 40


J. INT'L ENVTL. L. & POL'Y 447 (2011).

28.

R. Reyhani, Protection of the Environment During Armed

39, 40

Conflict, 14 MO. ENVTL. L. & POLY. REV. 323 (2007).


29.

R.L. Lawton & E.V. Morse, Salmonella Survival in Freshwater,

40

15(4) JOURNAL OF ENVIRONMENTAL SCIENCE AND HEALTH 339


(2008).
30.

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE

25, 26, 28

WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 217 (2014).


31.

Talmon, The Constitutive versus the Declaratory Theory of

36

Recognition: Tertium Non Datur?, 75 BYIL 101 (2004).


32.

W.A. Schabas, Punishment of Non-State Actors in Non-

31

International Armed Conflict, 26(4) FORDH. INTL L. J. 907


(2002).
33.

W.A. Schabas, State Policy as an Element of International


Crimes, 98(3) JOURNAL OF CRIM. L. & CRIMINOLOGY 953 (2008).
13

31

34.

Z. Yihdego, The Islamic State Challenge: Defining the Actor, E-

36

INTERNATIONAL RELATIONS (24 June, 2015).

BOOKS

1.

A. Cassese, THE OXFORD COMPANION TO INTERNATIONAL

26

CRIMINAL JUSTICE (2009).


2.

A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL

29, 31, 42

CRIMINAL COURT: A COMMENTARY, VOL.I (2002).


3.

A. Clapham et al, THE OXFORD HANDBOOK OF INTERNATIONAL

39

LAW IN ARMED CONFLICT (2014).


4.

C. Ryngaert, JURISDICTION IN INTERNATIONAL LAW (2nd edn.,

26

2015).
5.

D. Raic, STATEHOOD AND THE LAW OF SELF-DETERMINATION

35, 36

(2002).
6.

E. Milano, UNLAWFUL TERRITORIAL SITUATIONS IN

36

INTERNATIONAL LAW (2006).


7.

G. Werle & F. Jessberger, PRINCIPLES OF INTERNATIONAL

29

CRIMINAL LAW (3rd edn., 2014).


8.

9.

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (8th edn.,

26, 33, 35,

2012).

36

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW

35, 36

(2nd edn., 2007).


10.

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12


AUGUST 1949, VOL. III (2004).
14

41, 42

11.

K. Ambos, TREATISE ON INTERNATIONAL CRIMINAL LAW, VOL.II

29

(2014).
12.

K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL

39, 40

THRESHOLD (2004).
13.

K. Kittichaisaree, INTERNATIONAL CRIMINAL LAW (2001).

31

14.

M. Kohen, SECESSION: INTERNATIONAL LAW PERSPECTIVES

36

(2006).
15.

M. Vagias, THE TERRITORIAL JURISDICTION OF THE

26, 33, 34

INTERNATIONAL CRIMINAL COURT (2011).


16.

M.C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL

32

CRIMINAL LAW (1999).


17.

M.C. Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL

34

LAW (2003).
18.

M.C. Bassiouni, THE LEGISLATIVE HISTORY OF THE

32

INTERNATIONAL CRIMINAL COURT, VOL.I (2005).


19.

N. Boister, AN INTRODUCTION TO TRANSNATIONAL CRIMINAL

26

LAW (2012).
20.

O. Agbu, CHILDREN AND YOUTH IN THE LABOUR PROCESS IN

28

AFRICA (2009).
21.

O. Ebbe & D.K. Das, GLOBAL TRAFFICKING IN WOMEN AND

28

CHILDREN (2007).
22.

O. Triffterer, COMMENTARY ON THE ROME STATUTE OF THE

31, 34

INTERNATIONAL CRIMINAL COURT (2008).


23.

S. Whitman et al, CHILDREN AND YOUTH IN MARINE PIRACY:


CAUSES, CONSEQUENCES AND THE WAY FORWARD (2012).

15

25, 26, 28

24.

W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL

30

CRIMINAL COURT (4th edn., 2011).


25.

W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A

26, 29, 31,

COMMENTARY TO THE ROME STATUTE (2010).

41

TREATIES AND CONVENTIONS

1.

ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION 16 ILM

41, 42

1391 (1977).
2.

CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER

39

HOSTILE USE OF ENVIRONMENTAL MODIFICATION TECHNIQUES,


U.N. Doc. No. A/RES/31/72 (1977).
3.

CONVENTION ON THE RIGHTS OF THE CHILD, 1577 U.N.T.S. 3

25

(1989).
4.

MONTEVIDEO CONVENTION ON THE RIGHTS AND DUTIES OF

36

STATES, 165 LNTS 19 (1933).


5.

OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE

28

CHILD ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT,


U.N. Doc. No. A/RES/54/263 (May 25, 2000).
6.

PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN

25, 27

PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING


THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL

ORGANIZED CRIME, U.N. Doc. No. A/55/383 (2000).


7.

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 37 ILM 24


1002 (1998).

16

8.

SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY,

25, 27

THE SLAVE TRADE, AND INSTITUTIONS AND PRACTICES SIMILAR TO

SLAVERY, 226 U.N.T.S. 3 (1957).

MISCELLANEOUS

1.

Assembly of States Parties, Report of the Special Working Group on 34


the Crime of Aggression, ICC-ASP/7/SWGCA/2.

2.

Australia, The Manual on the Law of Armed Conflict (2006).

42

3.

Commentary to the Articles on State Responsibility for

36

Internationally Wrongful Acts, U.N. Doc. A/56/83 (2001).


4.

5.

ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT,

24, 25, 32,

ICC-ASP/1/3.

33

EU DIRECTIVE ON PREVENTING AND COMBATING TRAFFICKING IN

28

HUMAN BEINGS AND PROTECTING ITS VICTIMS, 2011/36/EU.


6.

Final Report to the Prosecutor by the Committee Established to

40

Review the NATO Bombing Campaign against the Federal Republic


of Yugoslavia (2000).
7.

Friendly Relations Resolution, UNGA Res. 2625, UN Doc. A/8028

37

(1970).
8.

Guidelines on the Protection of the Environment in Times of Armed

39

Conflict, U.N. Doc. No. A/RES/47/37 (1992).


9.

I. Bantekas, Criminal Jurisdiction of States under International


Law, MAX PLANK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW
(2011).
17

26

10.

International and Operational Law Department, US Army,

39

Operational Law Handbook (2007).


11.

International Committee of the Red Cross Statement of 8 July 1998

41

Relating to the Bureau Discussion Paper in Document


A/CONF.183/C.1 /L.53, U.N. Doc. No. A/CONF.183/INF/10
(1998).
12.

International Humanitarian Law and The Challenges Of

42

Contemporary Armed Conflicts, REPORT OF THE INTERNATIONAL


COMMITTEE OF THE RED CROSS, 03/IC/09 (2003).
13.

International Law Commission, Commentary on Article 18(4) Draft

29

Code, 2 YBILC 2 (1996).


14.

Office of the Prosecutor, Report on the Preliminary Examination

31

Activities (2013).
15.

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38

A/HRC/3/2 (2006).
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Report of the Independent International Commission of Inquiry on

31

the Syrian Arab Republic, U.N. Doc. No. A/HRC/30/48 (2015).


17.

Report of the Preparatory Committee on the Establishment of an

29

International Criminal Court, U.N. Doc. No. A/51/22 (1996).


18.

The European Consensus on Humanitarian Aid, EUROPEAN

43

COMMISSION.
19.

UNHCHR, EXPLOITATION AND ABUSE: CRITICAL ISSUES (2001).

25

20.

UNICEF, ESSENTIAL INFORMATION ABOUT CHILD TRAFFICKING

28

(2010).
21.

UNICEF, GLOBAL STATISTICS ON CHILDREN'S PROTECTION FROM

25

VIOLENCE, EXPLOITATION AND ABUSE (2014).


22.

United Kingdom, The Manual of the Law of Armed Conflict (2004).


18

42

23.

United Nations Environment Programme, PROTECTING THE

39

ENVIRONMENT DURING ARMED CONFLICT (2009).


24.

United Nations Office on Drugs and Crime, TOOLKIT TO COMBAT

28

TRAFFICKING IN PERSONS (2010).


25.

United Nations Office on Drugs and Crime, TRAVAUX

27

PRPARATOIRES OF THE NEGOTIATIONS FOR THE ELABORATION OF


THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL

ORGANIZED CRIME AND THE PROTOCOLS THERETO (2006).


26.

United States Department of State, TRAFFICKING IN PERSONS

28

REPORT (2009).
27.

United States of America, Annotated Supplement to the

42

Commanders Handbook on the Law of Naval Operations (1997).


28.

UNSC Resolution 1373, U.N. Doc. No. S/RES/1373 (2001).

37

29.

UNSC Resolution 1456, U.N. Doc. No. S/RES/1456 (2003).

37

30.

UNSC Resolution 2133, U.N. Doc. No. S/RES/2133 (2014).

37

31.

UNSC Resolution 2199, U.N. Doc. No. S/RES/2199 (2015).

37

32.

UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015).

37

19

STATEMENT OF FACTS

Porvos, a party to the ICC Statute since 2002, shares its boundaries with Tyvosh and Yunkel.
Tyvosh and Yunkel have not ratified the ICC Statute. All three are democratic countries and
have no army or navy.
For the past 5 years, Yunkel has been the base of the Olmic State of Tyvosh and Yunkel
(OSTY), an organization that seeks to establish an autonomous Olmic state in the southern
portion of Yunkel and all of Tyvosh. OSTY was formed in 2010 and is led by Lance Raider, a
national of Yunkel, who has helped OSTY purchase millions of dollars worth of weapons
through his inherited property. Since its formation, OSTYs membership has increased to over
50,000 members and Yunkel has been unable and unwilling to control its growth.
In January 2014, OSTY launched a coordinated series of attacks which resulted in its gaining
control over all the territory of Tyvosh with the exception of its capital, Quirth. In April, 2014,
Porvos commenced shipments of humanitarian aid to Quirth, at the request of Tyvoshs
government. In order to stop these shipments, OSTY converted two dozen vessels from Lance
Raiders shipping fleet into highly-equipped pirate ships and launched a series of attacks
against the Porvosian aid vessels. The attacks were launched in June 2014, and took place on
the high seas between Sylaria and Quirth. By February 2015, OSTY was successful in
capturing 30 Porvos-flagged vessels and taking 550 Porvosian crew members hostage,
confiscating $10 million worth of cargo.
In these attacks, OSTY used approximately 2,000 pirates. Half of these pirates were under the
age of fourteen. These juvenile pirates were systematically recruited by Lance Raider and his
OSTY lieutenants, who contracted with the parents of the juveniles to share a percentage of
the piratical booty. In February 2015, the Porvosian vessels bound for Quirth began to employ
armed private security forces. These security forces successfully repelled many of the pirate
attacks. An estimated 1,000 pirates, including 500 juveniles, were killed in these skirmishes.
In March 2015, OSTY announced that it would poison the rivers that feed Mirror Lake, on
which half the Porvosian population depended for water, unless Porvos ceased its aid
shipments. When Porvos refused, OSTY contaminated the rivers with Salmonella, which
resulted in an outbreak of disease, causing 50 deaths and 3,000 hospital visits. The shipments
20

were halted by Porvos with immediate effect after the attack, but other nations began to ship
aid to Quirth.
On April 10, 2010, the Office of the Prosecutor requested the Pre-Trial Chamber for
authorization to investigate whether OSTY committed international crimes within the
jurisdiction of the ICC:
a) by recruiting and using child pirates in attacks against Porvosian vessels as a crime
against humanity; and
b) by contaminating Porvos water supply, as a war crime under Art.8(2)(b)(iv) of the ICC
Statute.
The Counsel for the Government of Yunkel raised the following objections:
First, the recruitment and use of juvenile pirates by OSTY could not constitute a crime against
humanity under Art.7 of the Courts Statute;
Second, the contamination of Mirror Lake could not constitute a war crime under
Art.8(2)(b)(iv) of the ICC Statute;
Third, Judge Rosemelle Hasty, one of the three members of the Pre-Trial Chamber, must be
disqualified from the case under Arts.40 & 41 of the ICC Statute because she had earlier
published an opinion stating that the ICC could try the recruitment and use of juvenile pirates
as a crime against humanity, in the context of Somalian Piracy.
The Pre Trial Chamber, after duly considering all the submissions and arguments:
a) Declined to disqualify Judge Hasty;
b) Ruled that, if proven, the recruitment and use of juvenile pirates by OSTY could be
tried as a crime against humanity under Art.7 of the Courts Statute;
c) Ruled that, if proven, the intentional contamination of Porvos water supply could be
tried as a war crime under Art.8(2)(b)(iv) of the Courts Statute.
Consequently, the Pre-Trial Chamber authorized the Prosecutor to investigate the
aforementioned crimes. Yunkel has appealed against this decision.

21

ISSUES RAISED

-IWHETHER THE RECRUITMENT AND USE OF JUVENILE PIRATES BY OSTY CAN BE TRIED AS A
CRIME AGAINST HUMANITY WITHIN THE JURISDICTION OF THE INTERNATIONAL CRIMINAL

COURT UNDER ARTICLE 7 OF THE ICC STATUTE

-IIWHETHER OSTYS CROSS-BORDER CONTAMINATION OF PORVOSS WATER SUPPLY CAN


CONSTITUTE THE WAR CRIME UNDER ARTICLE 8(2)(B)(IV)

-IIIWHETHER J. HASTY SHOULD BE DISQUALIFIED UNDER ARTICLES 40 AND 41 OF THE ICC


STATUTE

22

SUMMARY OF ARGUMENTS

I. OSTYs recruitment and use of juvenile pirates constitutes a crime against humanity under
Art.7, ICC Statute. The systematic use of juvenile pirates by OSTY qualifies as an attack, as
it constitutes repeated acts of enslavement. Further, because enslavement is a continuing
offence which persisted on Porvosian ships, the objective territorial principle deems the entire
crime to have occurred within Porvos. The consent of the juveniles parents to their piratical
excursions does not preclude enslavement, as neither the Supplementary Convention on
Slavery nor the Palermo Protocol grant it any exculpatory role. Further, the numerosity
requirement under Art.7 is not mandatory and, in any event, the presence of hundreds of victims
is sufficient to satisfy it. Finally, OSTY constitutes an organization within the meaning of
Art.7(2)(a), and is therefore capable of committing crimes against humanity.
II. OSTYs cross-border contamination of Mirror Lake with Salmonella constitutes a war
crime under Art.8(2)(b)(iv), ICC Statute. The conduct in question is deemed to have occurred
on Porvosian territory by virtue of the objective territorial principle as damage to the natural
environment, a constituent element of the crime in question, occurred on Porvosian territory.
Further, such damage took place in the course of and in furtherance of an international armed
conflict, because OSTY constitutes a State or, alternatively, because its conduct can be
attributed to Yunkel. Further the damage to the natural environment caused by the
contamination was widespread, long-term and severe based on the ENMOD standard. Finally,
this damage was disproportionate, because it violated fundamental principles of humanitarian
law and, in any event, the military advantage anticipated by OSTY was neither concrete nor
direct.
III. J.Hasty should not be disqualified under Arts.40 & 41, ICC Statute because Yunkel does
not have locus standi to request her disqualification as per Art.41(2)(b), ICC Statute. In any
event, the opinion expressed by her does not warrant disqualification because it was not of a
conclusive nature.

23

WRITTEN ARGUMENTS

I.

OSTYS RECRUITMENT AND USE OF JUVENILE PIRATES CONSTITUTES


A CRIME AGAINST HUMANITY UNDER ART.7 OF THE ICC STATUTE

1. Prosecution submits that OSTYs recruitment and use of juvenile pirates constitutes a crime
against humanity under Art.7, ICC Statute. The use of juvenile pirates on Porvosianflagged vessels qualify as attacks against a civilian population in the territory of Porvos
[A]. The consent of the juveniles parents to their participation in piratical excursions does
not preclude the crime of enslavement [B]. Further, the number of juvenile pirates satisfies
Art.7s implicit numerosity requirement [C]. Finally, OSTY is an entity that is capable of
committing crimes against humanity [D].
A. THE

USE OF JUVENILE PIRATES ON PORVOSIAN-FLAGGED VESSELS QUALIFY AS


ATTACKS AGAINST A CIVILIAN POPULATION IN THE TERRITORY OF PORVOS

2. Art.7, ICC Statute requires an attack directed against any civilian population to occur
within the territory of a State-party, for the commission of a crime against humanity.
Prosecution submits that OSTYs recruitment and use of juvenile pirates constitutes such
an attack [i], which took place on Porvosian territory [ii].
i.

OSTYs recruitment and use of juvenile pirates constitutes an attack

3. An attack under Art.7 need not be violent, but merely requires the multiple commission
of acts specified under Art.7(1).1 Enslavement is one such act.2 Prosecution submits that
OSTYs recruitment and use of juvenile pirates involved repeated acts of enslavement, and
thereby constitutes an attack.
4. As per the Elements of Crimes,3 enslavement includes conduct that reduces a person to a
servile status, as defined under the Supplementary Convention on the Abolition of Slavery.
Art.1(d) of the Supplementary Convention states that the delivery of a child by his parents

1

Element 3 of Art.7, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 5;


Prosecutor v. Akayesu, Case. No. ICTR-96-4-T (ICTR), 581; Prosecutor v. Kunarac, Case No. IT-96-23-T &
IT-96-23/1-T (ICTY), Judgment, 416.
2

Art.7(1)(c), ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 37 ILM 1002 (1998).

Footnote 11, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 6.

24

to another person, with a view of exploiting the child, reduces the child to such servile
status.4 Moreover, enslavement also includes the trafficking of children.5 Art.3(c) of the
Palermo Protocol states that the recruitment of a child for the purpose of exploitation
shall be considered trafficking.6 Any form of labour that endangers a childs life, health
or wellbeing is necessarily exploitative.7 The use of children for the purposes of piracy
certainly endangers their life and physical wellbeing,8 as evinced by the death of half the
juveniles recruited by OSTY for piratical excursions.9 Hence, the recruitment and use of
juvenile pirates is exploitative, and reduces the child to a servile status, while also
constituting a form of trafficking. Both these acts amount to enslavement. As OSTY carried
out such recruitment and use of juveniles systematically,10 they committed multiple acts of
enslavement. Thus OSTYs recruitment and use of juvenile pirates constitutes an attack
under Art.7.
ii.

The attack occurred on Porvosian territory

5. According to Art.12(2), ICC Statute, a vessel is deemed to constitute the territory of the
State of registration. As per the objective territorial principle, when any constituent element
of a crime, or its consequences, occurs on a States territory, the entire crime is deemed to

Art.1(d), SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND
INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY, 226 U.N.T.S. 3 (April 30, 1957).
5

Footnote 11, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 6.

Art.3(c), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND
CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME,
U.N. Doc. No. A/55/383 (November 15, 2000).
7

Art.32, CONVENTION ON THE RIGHTS OF THE CHILD, 1577 U.N.T.S. 3 (November 20, 1989); UNHCHR,
Exploitation and Abuse: Critical Issues, 6 (2001); UNICEF, Global Statistics on Children's Protection from
Violence, Exploitation and Abuse, 1 (2014).
8

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 217, 229 (2014); A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable on Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411, 423 (2014); M.A. Drumbl, Child Pirates:
Rehabilitation, Reintegration and Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 235, 251 (2014); H.R. Williamson, New Thinking in the Fight Against Marine Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 335, 350 (2014); S. Whitman et al, CHILDREN AND
YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND THE WAY FORWARD, 43 (2012); D. Gaswanga, Does
the ICC Have Jurisdiction over the Recruitment and Use of Child Pirates?, 19 ILSA J. Int'l & Comp. L. 277,
290 (2013).
9

7-8, The Problem.

10

7, The Problem.

25

have been committed within the territory of such State.11 This principle has been applied
by numerous municipal courts,12 the ICJ in the Arrest Warrant case,13 the PCIJ in the Lotus
case,14 and is supported by several jurists.15 In case of continuing offences, the objective
territorial principle enables all States in which the criminal conduct persists to exercise
jurisdiction, even if such conduct did not originate within their territory.16
6. In the present case, OSTY conducted its piratical attacks on Porvosian vessels.17 Juvenile
pirates were used in such attacks.18 In the Lubanga case, this Court observed that the
offence of recruitment and use of child soldiers is continuous in nature and only
terminates when the child reaches 15 years of age or leaves the force or group.19 This
principle is also applicable to the recruitment and use of juvenile pirates, as the two crimes
are considered identical.20 Thus, although the crime of recruiting and using juvenile pirates

11

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 (8th edn., 2012).

12

Ford v United States, 273 US 593 (1927) [U.S. Supreme Court]; Iannelli v United States, 420 US 770 (1975)
[U.S. Supreme Court]; Smith, R (on the application of) v Secretary of State for Defence & Anr. (2010) UKSC 29
[U.K. Supreme Court]; Gallo Africa Ltd and Others v. Sting Music (Pty) Ltd and Others 2010 (6) SA 329
[South African Supreme Court of Appeal]; Gvk Inds. Ltd & Anr v. The Income Tax Officer & Anr. (2011) 4
SCC 36 [Indian Supreme Court]; Ajay Agarwal v. Union of India [Indian Supreme Court]; Wood pulp,
Osakeyhti and ors. v. Commission of the European Communities ECR 5193 ILEC 035 (1988) [Court of Justice
of the European Union]; Alaska v. Jack 125 P.3d 311 (2005) [Alaska Supreme Court]; Board of Trade v Owen
(1957) AC 602 [U.K. Court of Appeals]; DPP v Stonehouse (1977) 2 All ER 909 [U.K. Court of Appeals].
13

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium) ICJ Rep. 2002 3 [Joint Separate
Opinion of Judges Higgins, Buergenthal and Kooijmans].
14

The Case of the S.S. Lotus (Turkey v. France) 1927 PCIJ Ser. A No. 10, 23.

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 (8th edn., 2012); W.A. Schabas, THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 285 (2010); M. Vagias, THE
TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 40 (2011); C. Ryngaert, JURISDICTION IN
INTERNATIONAL LAW, 49 (2nd edn., 2015); A. Cassese, THE OXFORD COMPANION TO INTERNATIONAL CRIMINAL
JUSTICE, 402 (2009).
15

16

Director of Public Prosecutions v Doot UKHL [1973] 1 All ER 940; I. Bantekas, Criminal Jurisdiction of
States under International Law, MAX PLANK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, 5 (2011); N.
Boister, AN INTRODUCTION TO TRANSNATIONAL CRIMINAL LAW, 139 (2012);
17

6, The Problem.

18

7-8, The Problem.

19

Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06, Judgement, 618 (2012).

20

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 217, 229 (2014); A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable on Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411, 423 (2014); M.A. Drumbl, Child Pirates:
Rehabilitation, Reintegration and Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 235, 251 (2014); H.R. Williamson, New Thinking in the Fight Against Marine Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 335, 350 (2014); S. Whitman et al, CHILDREN AND
YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND THE WAY FORWARD, 43 (2012); D. Gaswanga, Does

26

began in Tyvosh and Yunkel, it continued on Porvosian vessels. Consequently, by virtue


of the objective territorial principle, it is deemed to have occurred on Porvosian territory
and the ICC can exercise jurisdiction over it.
B.

THE CONSENT OF THE JUVENILES PARENTS DOES NOT PRECLUDE THE CRIME OF
ENSLAVEMENT

7. As argued above,21 the recruitment and use of juvenile pirates constitutes enslavement
under Art.7(1)(c), ICC Statute, as it represents both a servile status and a form of
trafficking. Prosecution submits that the consent of the juveniles parents to their piratical
excursions in exchange for a percentage of piratical booty does not preclude this crime of
enslavement. The Supplementary Convention on the Abolition of Slavery specifically
states that the delivery of a child for exploitation by either or both of his natural
parentsto another person, whether for reward or not constitutes enslavement, thus
disregarding any exculpatory role of parental consent.22 Similarly, the Palermo Protocol
considers the recruitment of children for exploitation to be trafficking, and consequently
enslavement, irrespective of whether parental consent has been granted.23 In fact, while the
Protocol considers consent to be exculpatory in the trafficking of adults, it purposely avoids
the same for child trafficking.24 The Protocols travaux prparatoires indicate that this was
done because delegations did not wish parents to consent to the exploitation of their
children.25


the ICC Have Jurisdiction over the Recruitment and Use of Child Pirates?, 19 ILSA J. Int'l & Comp. L. 277,
290 (2013).
21

See Argument I(A)(i).

22

Art.1(d), SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND
INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY, 226 U.N.T.S. 3 (April 30, 1957).
23

Art.3(c), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND
CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME,
U.N. Doc. No. A/55/383 (November 15, 2000).
24

Arts.3(a) & (c), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY
WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL
ORGANIZED CRIME, U.N. Doc. No. A/55/383 (November 15, 2000).
25

United Nations Office on Drugs and Crime, TRAVAUX PRPARATOIRES OF THE NEGOTIATIONS FOR THE
ELABORATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE
PROTOCOLS THERETO, 375 (2006).

27

8. Moreover, it is widely accepted that parental consent does not preclude the crimes of
trafficking and enslavement.26 In fact, in the Lubanga decision, this Court noted that while
consent to a childs recruitment may be taken into consideration by the Chamber at the
sentencing or reparations phase [such consent] does not provide an accused with a valid
defence.27 Similarly, the SCSLs decision in Prosecutor v. Fofana refused to attribute any
exculpatory role to consent for the crime of recruiting child soldiers.28 Hence, the consent
of the juvenile pirates parents does not preclude OSTYs crime of enslavement.
9. Additionally, even if this Court were to consider parental consent exculpatory, Prosecution
submits that this would only be the case if such consent was freely given and informed.29
Parental consent to juvenile piracy is very rarely of this nature.30 The facts do not specify
the nature of parental consent in the present case.31 This Court has observed that when
faced with such factual ambiguity, an investigation is to be permitted.32 Hence, Prosecution
submits that the authorization of investigation should be granted, notwithstanding the
parental consent to the acts of juvenile piracy.


26

United States Department of State, TRAFFICKING IN PERSONS REPORT, 7 (2009); UNICEF, ESSENTIAL
INFORMATION ABOUT CHILD TRAFFICKING, 14 (2010); O. Ebbe & D.K. Das, GLOBAL TRAFFICKING IN WOMEN
AND CHILDREN, 8 (2007); O. Agbu, CHILDREN AND YOUTH IN THE LABOUR PROCESS IN AFRICA, 35 (2009);
United Nations Office on Drugs and Crime, TOOLKIT TO COMBAT TRAFFICKING IN PERSONS, 6 (2010); Art.2, EU
DIRECTIVE ON PREVENTING AND COMBATING TRAFFICKING IN HUMAN BEINGS AND PROTECTING ITS VICTIMS,
2011/36/EU.
27

Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06, Judgement, 617 (2012).

28

Prosecutor v. Fofana, Case No. SCSL-04-14-T-796, Trial Chamber Judgment, 192 (October 9, 2007).

29

Arts.3(a)-(c), OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT
OF CHILDREN IN ARMED CONFLICT, U.N. Doc. No. A/RES/54/263 (May 25, 2000); W, X, Y & Z v. The United
Kingdom, Appl. No. 3435-3438/67 (ECHR), Decision of 19 July 1968, 20.
30

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 217, 229 (2014); A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable on Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411, 423 (2014); M.A. Drumbl, Child Pirates:
Rehabilitation, Reintegration and Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 235, 251 (2014); H.R. Williamson, New Thinking in the Fight Against Marine Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 335, 350 (2014); S. Whitman et al, CHILDREN AND
YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND THE WAY FORWARD, 43 (2012).
31

7, The Problem.

32

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No.ICC-02/05-01/09, Judgment on the Appeal
against the Decision on the Warrant of Arrest, 33 (February 3, 2010); Situation in the Republic of Kenya, Case
No. ICC-01/09, Decision on the Authorization of an Investigation, 33 (March 31, 2010).

28

C. THE

NUMBER OF CHILD PIRATES SATISFIES


REQUIREMENT

ART.7S

IMPLICIT

NUMEROSITY

10. In order to constitute a crime against humanity, Art.7 requires an attack to be widespread
or systematic. The widespread nature of an attack is determined by examining a variety
of factors, including the number of victims.33 However, as is evident from the language of
the provision, and as observed by this Court34 and several others,35 the requirements of
widespread and systematic are disjunctive under the ICC Statute. Consequently, if an
attack is shown to be systematic, it would no longer be necessary to establish the
numerosity requirement of a widespread attack. In the present case, the systematic nature
of OSTYs attack, consisting of the recruitment and use of juvenile pirates, is an admitted
fact.36 Hence, Prosecution submits that it is not necessary to satisfy the numerosity
requirement to prove a crime against humanity.
11. Yunkel may contend that Art.7(2)(a) defines an attack as requiring multiple commission
of acts, thereby introducing a mandatory numerosity requirement for the commission of
crimes against humanity. However, the drafting history of Art.7 clearly indicates that this
phrase was included in the definition of an attack only to exclude isolated incidents and
that anything more than one [act] could be multiple, to satisfy this requirement.37 OSTYs
recruitment of juvenile pirates is certainly not an isolated act, and thereby meets the
requirement of multiple commission[s] as well.
12. In any event, even if this Court were to find that Art.7 contains a mandatory numerosity
requirement, Prosecution submits that OSTYs attack would meet such a requirement.

33

Prosecutor v. Bashir, Case No. ICC-02/05-01/09, Decision on the Warrant of Arrest, 81; Prosecutor v.
Katanga et al., Case No. ICC-01/04-01/07, Decision on the Confirmation of the Charges, 394-397;
Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision on the Charges, 83; International Law
Commission, Commentary on Article 18(4) Draft Code, 2 YBILC 2, 15 (1996); Report of the Preparatory
Committee on the Establishment of an International Criminal Court, U.N. Doc. No. A/51/22, 21-24 (1996).
34

Situation in the Republic of Cote dIvoire, Case No.ICC-02/11-14, Decision on the Authorization of an
Investigation, 52-54; Situation in the Republic of Kenya, Case No.ICC-01/09-19-Corr, Decision on the
Authorization of an Investigation, 94.
35

W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 148 (2010);
A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL.I, 356
(2002); G. Werle & F. Jessberger, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 339 (3rd edn., 2014); K.
Ambos, TREATISE ON INTERNATIONAL CRIMINAL LAW, VOL.II, 61 (2014).
36

7, The Problem.

37

P. Hwang, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, 22(2)
FORDH. INTL L. J. 457, 498 & 502 (1998).

29

Several decisions indicate that the presence of hundreds of victims is sufficient to


establish a crime against humanity.38 In the present case, at least a thousand juveniles were
the victims of OSTYs attack.39 An almost identical number of victims was considered
sufficient by this Court, in the Kenya case, to authorize an investigation into crimes against
humanity.40 Hence, Prosecution submits that the number of child pirates satisfies Art.7s
implicit numerosity requirement.
D. OSTY IS AN ENTITY THAT IS CAPABLE OF COMMITTING CRIMES AGAINST HUMANITY
13. Art.7(2)(a) requires an attack to be in furtherance of a State or organizational policy to
constitute a crime against humanity. Yunkel contends that OSTY is neither a government
nor a parastatal entity, and is therefore incapable of meeting this requirement. Prosecution
submits that Yunkels objection is not a jurisdictional issue and cannot be raised at the pretrial stage [i]. In any event, OSTY fulfills the requirements of an organization under
Art.7(2)(a) [ii].
i.

The interpretation and existence of an organization under Art.7(2)(a) is not a


jurisdictional question

14. A Pre-Trial Chamber, when authorizing an investigation under Art.15 of the ICC Statute,
is to limit itself to questions of jurisdiction and admissibility.41 In the cases of Prosecutor
v. Ruto,42 as well as Prosecutor v. Muthauru,43 the Appeals Chamber of this Court has

38

Prosecutor v. Vasiljevi, Case No. IT-98-32 (ICTY), Trial Judgement, 51, 56, 58; Prosecutor v. Staki,
Case No. IT-97-24 (ICTY), Trial Judgement, 629; Prosecutor v. Simi et al, Case No. IT-95-9-T (ICTY), Trial
Judgement, 980; Prosecutor v. Perii, Case No. IT-04-81 (ICTY), Trial Judgement, 549; Prosecutor v.
Kordi & erkez, Case No. IT-95-14/2 (ICTY), Trial Judgement, 28; Prosecutor v. Gali, Case No. IT-98-29
(ICTY), Trial Judgement, 579; Prosecutor v. orevi, Case No. IT-05-87/1 (ICTY), Trial Judgement, 1597;
Prosecutor v. Blaki, Case No. IT-95-14 (ICTY), Trial Judgement, 507; Prosecutor v. Gatete, Case No.
ICTR-2000-61-T, Trial Judgement, 633; Prosecutor v. Kajelijeli, Case No. ICTR -98-44A-T, Trial Judgment,
902; Prosecutor v. Munyakazi, Case No. ICTR-97-36A-T, Trial Judgment, 14 & 18; Prosecutor v.
Ndahimana, Case No. ICTR-01-68-T, Trial Judgment, 837; Prosecutor v. Serugendo, Case No. ICTR-200584-T, Trial Judgment, 19.
39

7, The Problem.

40

Situation in the Republic of Kenya, Case No.ICC-01/09-19-Corr, Decision on the Authorization of an


Investigation, 131.
Art.15(4), ICC Statute; W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 257 (4th
edn., 2011).
41

42

Prosecutor v. Ruto et al, Case No. ICC-01/09-01/11 OA3 OA4, Decision on the appeal against the decision of
Pre-Trial Chamber II of 23 January 2012, 30.
43

Prosecutor v. Muthauru et al, Case No. ICC-01/09-02/11 OA 4, Decision on the appeal against the decision
of Pre-Trial Chamber II of 23 January 2012, 36.

30

observed that the interpretation of the term organization under Art.7(2)(a), as well as the
existence of such an organization on facts, are not issues pertaining to subject-matter
jurisdiction, but instead relate to the substantive merits of a case. Consequently, in both
these cases, the Defences objections to the existence of an organization were considered
inadmissible at the pre-trial stage. Similarly, Prosecution submits that Yunkels objection,
which is identical to the ones discussed above, cannot be entertained at this stage.
ii.

In any event, OSTY fulfills the requirements of an organization under Art.7(2)(a)

15. The term organization under Art.7(2)(a) is not restricted to governmental or parastatal
entities, as Yunkel contends, but also includes non-State actors under certain
circumstances. This Court,44 and several others,45 have repeatedly observed that a non-State
actor which possesses de facto control over territory and a capability to commit widespread
or systematic attacks would satisfy the requirement of an organization. In the instant case,
OSTY has de facto control over the territory of Tyvosh,46 as well as a capacity to commit
a widespread or systematic attack.47 Similar entities, such as the FARC, Republika Srpska,
the Palestinian Authority,48 the Islamic State,49 Al-Qaeda,50 and the Taliban51 have also
been considered organizations under Art.7(2)(a).


44

Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07-717, Decision on the confirmation of charges, 396;
Prosecutor v. Bemba, Case No. ICC-01/05-01/08-424, Decision on the Charges Against Jean-Pierre Bemba
Gombo, 81; Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an
Investigation, 93; Situation in the Republic of Cote dIvoire, Case No.ICC-02/11-14, Decision on the
Authorization of an Investigation, 45.
45

Prosecutor v. Tadic, Case No. IT-94-1-T (ICTY), Judgement, 653; Prosecutor v. Blaskic, Case No. IT-9514-T (ICTY), Judgement, 204; O. Triffterer, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT, 236 (2008); W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE
ROME STATUTE, 150 (2010); A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A
COMMENTARY, VOL.I, 356 (2002); K. Kittichaisaree, INTERNATIONAL CRIMINAL LAW, 98 (2001); D. Robinson,
Defining 'Crimes Against Humanity' at the Rome Conference, 93 AJIL 43, 50 (1999).
46

4, The Problem.

47

See Argument I(C).

48

W.A. Schabas, State Policy as an Element of International Crimes, 98(3) JOURNAL OF CRIM. L. &
CRIMINOLOGY 953, 972 (2008).
49

Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, U.N. Doc. No.
A/HRC/30/48, 172 & 184 (2015).
50

W.A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, 26(4) FORDH. INTL L.
J. 907, 930 (2002).
51

Office of the Prosecutor, Report on the Preliminary Examination Activities, 37-38 (2013).

31

16. Yunkel may seek to rely on Prof. Bassiounis narrow reading of Art.7,52 to contend that the
term organization is only restricted to governmental organizations. However, such an
interpretation would contradict the Elements of Crimes, which use the word organization
in opposition to the word State.53 Moreover, other opinions of Prof. Bassiouni admit to a
wider reading of Art.7, to include non-State actors.54 Such a narrow interpretation has also
been expressly rejected by this Court.55 Even J. Kauls dissenting opinion in the Kenya case
does not support Yunkels submissions, as it admits that a non-State organization
possessing State-like features would be sufficient to constitute an organization.56 As
shown below,57 OSTY possesses such features. Hence, Prosecution submits that OSTY
satisfies Art.7(2)(a)s requirement of an organization.
II.

OSTYS CROSS-BORDER CONTAMINATION OF PORVOSS WATER


SUPPLY CONSTITUTES A WAR CRIME UNDER ART.8(2)(b)(iv) OF THE
ICC STATUTE

17. Prosecution submits that OSTYs cross-border contamination of Mirror Lake with
Salmonella constitutes a war crime under Art.8(2)(b)(iv), ICC Statute. The conduct in
question occurred on Porvosian territory [A], and took place in the course of and in
furtherance of an international armed conflict [B]. The damage to the natural environment
caused by the contamination was widespread, long-term and severe [C], and was excessive
in relation to the concrete military advantage anticipated [D].


52

M.C. Bassiouni, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT, VOL.I, 151-152
(2005).
53

Element 3 of Art.7, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 5.

54

See M.C. Bassiouni, Crimes Against Humanity: The Case for a Specialized Convention, 9(4) WASHINGTON
UNIV. GLOBAL STUDIES LAW REVIEW 575, 585 (2010); M.C. Bassiouni, CRIMES AGAINST HUMANITY IN
INTERNATIONAL CRIMINAL LAW, 275 (1999).
55

Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07-717, Decision on the confirmation of charges, 396;
Prosecutor v. Bemba, Case No. ICC-01/05-01/08-424, Decision on the Charges Against Jean-Pierre Bemba
Gombo, 81; Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an
Investigation, 93; Situation in the Republic of Cote dIvoire, Case No.ICC-02/11-14, Decision on the
Authorization of an Investigation, 45.
56

Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation
(J.Kauls Dissenting Opinion), 51.
57

See Argument II(B)(i).

32

A. THE CONDUCT IN QUESTION OCCURRED ON PORVOSIAN TERRITORY


18. Art.12(2)(a), ICC Statute states that the Court would have jurisdiction over a crime if the
State on the territory of which the conduct in question occurred is a party to the Statute.
While Porvos is a party to the ICC Statute, Yunkel is not.58 Although OSTYs actions
occurred within Yunkel, Prosecution submits that they still constitute conduct within the
territory of Porvos.
19. As argued above,59 the widely accepted objective territorial principle deems any crime to
fall within a States territorial jurisdiction if any constituent element of such crime,
including its consequences, occurs on that States territory.60 In the instant case, damage
to the natural environment is a constituent element of the war crime under
Art.8(2)(b)(iv).61 As such damage took place within Porvos,62 the crime is deemed to have
occurred within Porvosian territory by the objective territorial principle. Consequently, this
Court has jurisdiction over the crime.
20. The term crime ordinarily comprises of three distinct elements conduct, consequences
and circumstances.63 Art.12 states that the conduct in question must occur within the
territory of a State party, and not the crime. Hence, Yunkel may contend that this phrasing
denies the Court jurisdiction when only the consequences of such crime occur within a
State partys territory, and that the objective territorial principle is thereby implicitly
excluded. However, Prosecution submits that, for the purposes of Art.12, the terms conduct
and crime are synonymous.
21. The ICC Statute uses the term conduct in two distinct forms. The first is as a component
of a crime, as indicated above. Such usage is found in Art.30. The second is to denote the
entire set of facts concerning a crime, inclusive of its consequences, and can be found in

58

1, The Problem.

59

See Argument I(A)(ii).

60

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 (8th edn., 2012).

61

Element 2 of Art.8(2)(b)(iv), ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3,


19.
62

9, The Problem.

63

M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 110 (2011).

33

Arts.22(1), 20(1) & 20(3). Prosecution submits that Art.12 uses conduct in the latter
sense. This is because Part II of the Statute, which contains both Art.12 and Arts.20(1) &
20(3), was drafted together, whereas Part III, which contains Art.30, was drafted
separately.64 The Appeals Chamber, in the Congo case,65 ruled that any provision of the
Statute must be interpreted in light of the section of the Statute within which it occurs, and
which it was drafted with. Moreover, in the Katanga Confirmation decision, this Court
affirmed that such interpretation must take place by excluding unrelated provisions of the
Statute, whose application would engender an asystematic opinio juris.66 Hence,
Prosecution submits that the term conduct in Art.12 must be interpreted uniformly with
Arts.20(1) & 20(3), with which it was drafted, and not in line with Art.30, which was
enacted independently and constitutes an unrelated provision.
22. This Court has, on multiple occasions, interpreted the term conduct in Art.12 as
synonymous with crime.67 The deliberations of the Assembly of States Parties Working
Group on the Crime of Aggression also indicate that this was the intended meaning of
conduct in Art.12.68 Such an interpretation is also necessary to give effect to the object
and purpose of the ICC Statute, as mandated by Art.31, VCLT. The Preamble to the Statute
states that the most serious crimesmust not go unpunished, and that the Statute intends
to put an end to impunity. Given the availability of weapons that possess the capacity to
travel large distances, and have consequences across State borders, it is imperative that the
objective territorial principle be applied under the ICC Statute to ensure the effective
deterrence of war crimes.69 Hence, Prosecution submits that OSTYs actions constitute
conduct within the territory of Porvos.

O. Triffterer, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 555 (2nd edn.,
2008); M.C. Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, 504 (2003).
64

65

Situation in Democratic Republic of Congo, Case No.ICC-01/04, Judgment on the Prosecutors Application
for Extraordinary Review, 33 (July 13, 2006).
66

Prosecutor v. Katanga, Case No.ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 481.

67

Prosecutor v. Mathieu Ngudjolo Chui, Case No.ICC-01/04-01/07-262, Decision on the Evidence and
Information Provided for the Issuance of a Warrant of Arrest, 14; Situation in the Republic of Cote dIvoire,
Case No.ICC-02/11-14, Decision on the Authorization of an Investigation, 187; Situation in the Republic of
Kenya, Case No.ICC-01/09-19-Corr, Decision on the Authorization of an Investigation, 175.
68

Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, ICCASP/7/SWGCA/2, 38.
69

M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 114 (2011).

34

B.

THE CONTAMINATION TOOK PLACE IN THE COURSE OF AND IN FURTHERANCE OF AN


INTERNATIONAL ARMED CONFLICT

23. An international armed conflict exists whenever there is a resort to armed force between
States.70 OSTY contaminated Mirror Lake as a response to Porvoss aid shipments to
Quirth. Prosecution submits that this contamination took place in the context of an
international armed conflict with Porvos because OSTY has acquired statehood [i], or,
alternatively, because OSTYs actions can be attributed to Yunkel [ii].
i.

OSTY meets the criteria to acquire statehood

24. The four criteria that are necessary to acquire statehood under customary international law
are: (a) a permanent population; (b) a defined territory; (c) an effective government; and
(d) independence.71 Prosecution submits that OSTY possesses each of these criteria, and,
as a consequence, has acquired statehood.
25. Following attacks in January 2014, OSTY gained control over the entire area of Tyvosh,
excluding Quirth, thereby obtaining a defined territory.72 This territory possesses a
permanent population.73 Thus, it fulfills the first two requirements stipulated above. The
third requirement, an effective government, is defined as the ability of an entity to
administer a territory to the exclusion of all others.74 International law lays down no
specific requirements regarding the nature and extent of such government.75 Hence OSTYs
continuing control and administration of its territory for over two years76 is sufficient to
indicate an effective government. Finally, OSTY also possesses independence, as all major
political and military decisions are made by Lance Raider, without any evidence of external


70

Prosecutor v. Dusko Tadi, Case No.IT-94-1 (ICTY), Decision on the Defence Motion on Jurisdiction, 70.

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 37 (2nd edn., 2007); I. Brownlie, PRINCIPLES
th
OF PUBLIC INTERNATIONAL LAW, 127 (8 edn., 2012); D. Raic, STATEHOOD AND THE LAW OF SELFDETERMINATION, 58 (2002).
71

72

4, The Problem.

73

1, The Problem.

74

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 59 (2nd edn., 2007).

75

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 59 (2nd edn., 2007).

76

4-5, The Problem.

35

influence or control.77 Hence, OSTY satisfies each of the four criteria stipulated above and,
consequently, has acquired statehood.
26. Yunkel may contend that the acquisition of territory by OSTY took place through the use
of force, which would render its actions illegal. Nonetheless, since legality of creation is
not a criterion for statehood,78 such use of force would not preclude OSTY from becoming
a state. It would only imply that OSTY must bear responsibility for such illegality as a
newly formed State, in accordance with Art.10(2), ASR. Further, the absence of
international recognition of OSTY is also not a bar to statehood, since recognition is merely
declaratory, and not constitutive of statehood.79 It is for these reasons that jurists have
acknowledged that the Islamic State, a terrorist organization with continuing control over
territory, may be considered a State.80 Hence, Prosecution submits that OSTY has acquired
statehood.
ii.

OSTYs actions can be attributed to Yunkel

27. The rules for attribution of conduct to a particular State are not contained in the ICC Statute,
hence the general rules of State responsibility can be relied on.81 According to such rules,
a State may be responsible for the conduct of private parties if it fails to take necessary
measures to prevent such conduct.82 This due diligence obligation requires States to take

77

3, The Problem.

78

Talmon, The Constitutive versus the Declaratory Theory of Recognition: Tertium Non Datur?, 75 BYIL 101,
134 (2004); M. Kohen, SECESSION: INTERNATIONAL LAW PERSPECTIVES, 470 (2006); E. Milano, UNLAWFUL
TERRITORIAL SITUATIONS IN INTERNATIONAL LAW 136 (2006); Art.1, MONTEVIDEO CONVENTION ON THE
RIGHTS AND DUTIES OF STATES, 165 LNTS 19 (1933); Opinion No.1 (Conference on Yugoslavia, Arbitration
Commission) 3 EJIL 1 (1992).
J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 37 (2nd edn., 2007); I. Brownlie, PRINCIPLES
th
OF PUBLIC INTERNATIONAL LAW, 127 (8 edn., 2012); D. Raic, STATEHOOD AND THE LAW OF SELFDETERMINATION, 58 (2002).
79

80

A. Coleman, The Islamic State and International Law: An Ideological Rollercoaster, 5(2) JOURNAL OF THE
PHILOSOPHY OF INTERNATIONAL LAW 75, 80 (2014); C.E. Bellew, Secession in International Law: Could ISIS
Become a Legally Recognized State?, 42 OHIO N.U.L. Rev. 239, 254 (2015); A. Fenton & D. Price, Breaking
ISIS: Indonesias Legal Position on the Foreign Terrorist Fighters Threat, 16(1) AUSTRALIAN JOURNAL OF
ASIAN LAW 2, 17 (2015); Z. Yihdego, The Islamic State Challenge: Defining the Actor, E-INTERNATIONAL
RELATIONS (24 June, 2015).
81

Prosecutor v. Dusko Tadi, Case No.IT-94-1-A (ICTY), Appeals Chamber Judgement, 98, 105.

82

Commentary to the Articles on State Responsibility for Internationally Wrongful Acts, U.N. Doc. A/56/83, 39
(2001); R. Barnbridge, States Due Diligence Obligations with Regard to International Non-State Terrorist
Organisations Post-11 September 2011: The Heavy Burden that States Must Bear, 16 IRISH STUD. IN INTL
AFFAIRS 103, 107 (2005).

36

all possible measures to prevent harm to other States from an activity committed on their
territory.83 The extent of vigilance required by this obligation varies according to the facts
and circumstances of each case.84
28. International law imposes a very high standard of vigilance with respect to international
terrorism.85 The obligations imposed upon States include prevention of financing of
terrorist activities by freezing funds and other financial assets,86 investigating and
prosecuting persons engaged in terrorist activities,87 preventing the use of flag vessels and
aircrafts for terrorist purposes,88 and preventing the direct or indirect supply of arms and
ammunition.89 In the present case, Yunkel did not take any steps to prevent Lance Raider
from using his inheritance to finance OSTYs terrorist activities.90 Further, Yunkel has not
instituted criminal proceedings against the members of OSTY.91 In June 2014, Yunkel took
no steps to prevent the use of two dozen Yunkel-flagged vessels as pirate ships.92 Further,


83

United States Diplomatic and Consular Staff in Tehran (Hostages) (United States v. Iran), ICJ Rep 3, 32-33
(1980); Corfu Channel (United Kingdom v Albania), Merits, ICJ Rep 4, 22 (1949); Asian Agricultural Products
Ltd. (AAPL) v. Republic of Sri Lanka, 30 ILM 577, 588 (1990); R. Barnbridge, States Due Diligence Obligations
with Regard to International Non-State Terrorist Organisations Post-11 September 2011: The Heavy Burden that
States Must Bear, 16 IRISH STUD. IN INTL AFFAIRS 103, 110 (2005).
84

Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, 30 ILM 577, 610 (1990); R. Barnbridge,
States Due Diligence Obligations with Regard to International Non-State Terrorist Organisations Post-11
September 2011: The Heavy Burden that States Must Bear, 16 IRISH STUD. IN INTL AFFAIRS 103, 110 (2005).
85

Friendly Relations Resolution, UNGA Res. 2625, UN Doc. A/8028, 1970, Para 1; R. Barnbridge, States Due
Diligence Obligations with Regard to International Non-State Terrorist Organisations Post-11 September 2011:
The Heavy Burden that States Must Bear, 16 IRISH STUD. IN INTL AFFAIRS 103, 113 (2005); O. Schachter, The
Lawful Use Of Force By A State Against Terrorists In Another Country , 19 ISRAEL YRBK ON HUMAN RIGHTS,
209, 212 (1989).
86

UNSC Resolution 1373, U.N. Doc. No. S/RES/1373 (2001), 1(a) and (c); UNSC Resolution 2133, U.N.
Doc. No. S/RES/2133 (2014), 2; UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015), (2)(a); UNSC
Resolution 2199, U.N. Doc. No. S/RES/2199/2015, 3.
87

UNSC Resolution 1373, U.N. Doc. No. S/RES/1373 (2001), 2(e); UNSC Resolution 1456, U.N. Doc. No.
S/RES/1456 (2003), 3; UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015), 12; UNSC Resolution
2199, U.N. Doc. No. S/RES/2199/2015, 11.
88

UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015), (2)(c); UNSC Resolution 2199, U.N. Doc. No.
/RES/2199/2015, 24.
89

UNSC Resolution 1373, U.N. Doc. No. S/RES/1373 (2001), 3(a); UNSC Resolution 2253, U.N. Doc. No.
S/RES/2253 (2015), (2)(c); UNSC Resolution 2199, U.N. Doc. No. S/RES/2199/2015, 24.
90

3-4, The Problem.

91

2, The Problem.

92

6, The Problem.

37

it did not take steps to prevent the transfer of weapons to OSTY militants.93 In fact, a 2014
UNHCHR Report stated that Yunkel possesses a weak, corrupt government that for the
past five years has beenunwilling to control the OSTY threat.94 When Lebanon
displayed a similar unwillingness to control Hezbollahs attacks against Israel, the UN
Commission of Inquiry considered this sufficient to attribute Hezbollahs actions to
Lebanon and deem the conflict an international one.95
29. Admittedly, Yunkel disputes the characterization of the UNHCHR Report. However, as
this Court has repeatedly noted, the standard of proof to authorize an investigation under
Art.15(3) of the ICC Statute does not require that the conclusion reached on the facts be
the only possible or reasonable oneit is sufficient at this stage to prove that there is a
reasonable conclusion alongside others which can be supported on the basis of the
evidence and information available.96 The facts stipulated above, as well as the UNHCHR
Report, indicate that Yunkels unwillingness to control OSTY is a reasonable conclusion.
Hence, Prosecution submits that Yunkel has failed to comply with its due-diligence
obligations. Consequently, OSTYs actions can be attributed to Yunkel, transforming the
conflict with Porvos into an international armed conflict.
C. THE

DAMAGE CAUSED BY THE CONTAMINATION IS WIDESPREAD, LONG-TERM AND


SEVERE

30. In order to constitute a war crime, Art.8(2)(b)(iv) of the ICC Statute requires an attack to
cause widespread, long-term and severe damage to the natural environment. Although
the ICC Statute does not define widespread, long-term and severe damage, the identical
terms have also been used in the ENMOD Convention and Additional Protocol I to the
Geneva Convention. According to the ENMOD Convention, widespread encompasses an
area on the scale of several hundred square kilometers; long-lasting indicates a period
of months or approximately a season; and severe involves serious or significant


93

4, The Problem.

94

2, The Problem.

95

Report of the Commission of Inquiry on Lebanon, 50-62, U.N. Doc. No. A/HRC/3/2 (2006).

96

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No.ICC-02/05-01/09, Judgment on the Appeal
against the Decision on the Warrant of Arrest, 33 (February 3, 2010); Situation in the Republic of Kenya, Case
No. ICC-01/09, Decision on the Authorization of an Investigation, 33 (March 31, 2010).

38

disruption or harm to human life, natural and economic resources or other assets.97 The
Additional Protocol, on the other hand, fails to define these terms. As a consequence, jurists
have opined that the Additional Protocol has adopted the ENMOD definition by default.98
Indeed, this is the interpretation given to the Protocol by the military manuals of numerous
States,99 such as the USA,100 Israel, South Korea, New Zealand and Indonesia.101 Moreover,
the Guidelines on the Protection of the Environment in Times of Armed Conflict, adopted
by the General Assembly, also use the ENMOD definition for the three criteria.102 Due to
the extensive acceptance of this definition, Prosecution submits that it should be applied to
Art.8(2)(b)(iv).
31. Yunkel may argue that the Additional Protocol adopts a higher threshold for widespread,
long term and severe damage, which should be applied under Art.8(2)(b)(iv). Indeed,
some jurists have argued that the Protocol defines widespread as an area of several
hundred square kilometers; long-term as at least ten years; and severe as damage that
challenges the survival of the population.103 However, the United Nations Environment
Programme has observed that this stringent and imprecise thresholdis nearly impossible
to achieve.104 In fact, even when Iraq set fire to over 500 Kuwaiti oil wells, causing air and
water pollution that extended over 1500 square miles, it was found that the Additional
Protocol standard had not been satisfied.105 The damage caused by NATOs bombing

97

Understandings, CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OF


ENVIRONMENTAL MODIFICATION TECHNIQUES, U.N. Doc. No. A/RES/31/72 (1977).
98

C. Thomas, Advancing the Legal Protection of the Environment in Relation to Armed Conflict, 82 NORDIC J.
INTL. L. 83, 89 (2013); J. Wyatt, Law-making at the Intersection of International Environmental, Humanitarian
and Criminal Law, 92 INTL. REV. OF THE RED CROSS 593, 624 (2010); M. Halpern, Protecting Vulnerable
Environments in Armed Conflict, 51 STANF. J. INTL. L. 119, 136 (2015); K. Hulme, WAR TORN ENVIRONMENT:
INTERPRETING THE LEGAL THRESHOLD, 91 (2004).
99

J. Wyatt, Law-making at the Intersection of International Environmental, Humanitarian and Criminal Law,
92 INTL. REV. OF THE RED CROSS 593, 624 (2010).
100

International and Operational Law Department, US Army, Operational Law Handbook (2007),

101

R. Reyhani, Protection of the Environment During Armed Conflict, 14 MO. ENVTL. L. & POLY. REV. 323,
326 (2007).
102

Guidelines on the Protection of the Environment in Times of Armed Conflict, U.N. Doc. No. A/RES/47/37
(1992).
103

See: K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 91-95 (2004).

104

United Nations Environment Programme, PROTECTING THE ENVIRONMENT DURING ARMED CONFLICT, 51
(2009).
105

A. Clapham et al, THE OXFORD HANDBOOK OF INTERNATIONAL LAW IN ARMED CONFLICT, 480 (2014).

39

campaign in Yugoslavia could also not be prosecuted because it failed to meet the
Additional Protocol standard.106 Therefore, the lower threshold of the ENMOD Convention
is better suited to accomplish the objectives of the ICC Statute.107
32. Prosecution further submits that OSTYs contamination of rivers with Salmonella meets
the ENMOD standard of widespread, long term and severe damage. When pollutants are
discharged into mobile water bodies, such as underground water systems or rivers, the
pollutants contaminate not only the entire water body, but also the surrounding vegetation
and, consequentially, the populations that depend on such vegetation and water.108 Hence,
Prof. Hulme has opined that the contamination of such mobile bodies, as done by OSTY,
must necessarily meet the widespread threshold, as the resulting damage would always
extend over several hundred square kilometers.109 Moreover, since the Salmonella
bacterium survives in water for over four months,110 the damage caused by OSTYs
contamination is also long term. Finally, the Salmonella contaminated Mirror Lake, on
which half the population of Porvos depends for its water supply.111 It also induced an
outbreak of Salmonella-caused illness, which resulted in 3,000 hospital visits and 50
deaths.112 Therefore, Prosecution submits that the contamination caused serious or

106

Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
against the Federal Republic of Yugoslavia, 17 (2000).
107

M. Bothe, The Protection of the Civilian Population and NATO Bombing on Yugoslavia, 12(3) EJIL 531
(2001); P. Gleick, Water and Conflict: Fresh Water Resources and International Security, 18(1)
INTERNATIONAL SECURITY 79 (1993); M. Drumbl, Waging War Against the World: The Need to Move from War
Crimes to Environmental Crimes, 22 FORDHAM INTL. L. J. 122 (1999); N. Popovic, Humanitarian Law,
Protection of the Environment and Human Rights, 8 GEO. INT'L ENVTL. L. REV. 67 (1996); R. Reyhani,
Protection of the Environment During Armed Conflict, 14 MO. ENVTL. L. & POLY. REV. 323 (2007); J.
Lawrence & K. Heller, The Limits of Art.8(2)(b)(iv) of the Rome Statute, 20 GEO. INT'L ENVTL. L. REV. 61
(2008); C. Thomas, Advancing the Legal Protection of the Environment in Relation to Armed Conflict, 82
NORDIC J. INTL. L. 83, 89 (2013); M. Halpern, Protecting Vulnerable Environments in Armed Conflict, 51
STANF. J. INTL. L. 119, 136 (2015); R. Gilman, Expanding Environmental Justice After War, 22 COLO. J. INT'L
ENVTL. L. & POL'Y 447 (2011); D. Fleck, The Protection of the Environment in Armed Conflict, 82 NORDIC J.
INT'L L. 7 (2013).
108

K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 93-94 (2004).

109

Id.

110

B.C. Moore et al, Survival of Salmonella Enterica in Freshwater, 69(8) APPLIED ENVIR. MICROB. 4556
(2003); C.S. Jacobsen, Soil Survival of Salmonella and Transfer to Freshwater, 45(2) FOOD RESEARCH
INTERNATIONAL 557 (2012); R.L. Lawton & E.V. Morse, Salmonella Survival in Freshwater, 15(4) JOURNAL OF
ENVIRONMENTAL SCIENCE AND HEALTH 339 (2008).
111

9, The Problem.

112

9, The Problem.

40

significant disruptionto human life and was severe. Thus, OSTYs contamination
caused widespread, long term and severe damage.
D. THE

DAMAGE WAS EXCESSIVE IN RELATION TO THE CONCRETE MILITARY


ADVANTAGE ANTICIPATED

33. Article 8(2)(b)(iv) of the ICC Statute embodies the proportionality test, which requires
damage to the natural environment to be clearly excessive in relation to the concrete and
direct overall military advantage anticipated. Prosecution submits that this proportionality
test must be applied in conjunction with fundamental principles of humanitarian law, which
OSTYs attack contravenes [i]. In any event, the military advantage anticipated by OSTY
was not concrete and direct [ii].
i.

OSTYs attack contravenes fundamental principles of humanitarian law

34. Art.8(2)(b)(iv) has been adopted from Arts.51(5)(b) & 57(2)(a)(iii) of Additional Protocol
I, with certain minor modifications.113 It adds the term overall before concrete and direct
military advantage and the term clearly before excessive. However, it has been clarified
that these changes do not alter the proportionality principle as embodied in the Protocol.114
Consequently, the proportionality test under the ICC Statute is identical to that under the
Protocol.
35. The ICRC Commentary to the Protocol states that the fundamental principles of
humanitarian law are implicit within the proportionality test, and that an attack cannot be
proportionate if it contravenes these principles.115 The principles of humanity and
distinction are both fundamental principles of humanitarian law.116 The principle of
humanity prohibits attacks that are directed at civilians or civilian objects, or whose primary


113

Arts.51(5)(b) & 57(2)(a)(iii), ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION 16 ILM 1391 (1977); A.
Cassese et al, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 398 (2002).
114

W. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 230 (2010);
International Committee of the Red Cross Statement of 8 July 1998 Relating to the Bureau Discussion Paper in
Document A/CONF.183/C.1 /L.53, U.N. Doc. No. A/CONF.183/INF/10 (1998).
115

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, 2207 (2004); M.
Sassoli, Legitimate Targets of Attacks under International Humanitarian Law, Background Paper, HARV. PROG.
ON HUMANITARIAN POLICY AND CONFLICT RESEARCH, 1 (2003).
116

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, 1923 (2004); J.
Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of
War, 15 FLA. J. INTL L. 481, 492 (2002-2003).

41

purpose is to terrorize civilians.117 The principle of distinction requires an attack to clearly


differentiate between military and civilian targets.118 Prosecution submits that these
principles must also be read into Art.8(2)(b)(iv).
36. The inclusion of these principles within the proportionality test led Prof. Cohan to state that
it is impermissible under any circumstances[to] poison a population's waterno matter
how beneficial a military advantage might be gained by the action.119 Identical
observations have also been made in the military manuals of numerous States.120 In the
present case, OSTY contaminated the water supply of half the Porvosian population to
prevent Porvos from delivering aid to Quirth. Irrespective of the gravity of the damage, this
act of targeting civilians violates the principles of humanity and discrimination.
Consequently, OSTYs actions cannot satisfy the proportionality test under Article
8(2)(b)(iv).
ii.

In any event, the military advantage anticipated by OSTY is not significant enough

37. To satisfy the test of proportionality, Art.8(2)(b)(iv) requires an attack to produce a


concrete and direct advantage. This phrase indicates that an anticipated advantage must
be both substantial and imminent.121 In the instant case, the contamination of Mirror Lake
was done with the objective of ending the siege of Quirth. However, as such an outcome
would not occur in the proximate short term, it cannot be considered a direct military
advantage.122 Moreover, the action was unable to end the siege of Quirth, as other States

117

Art.51(2), Additional Protocol I; J. Cohan, Modes of Warfare and Evolving Standards of Environmental
Protection under the International Law of War, 15 FLA. J. INTL L. 481, 496 (2002-2003).
118

Art.51(2), Additional Protocol I; J. Cohan, Modes of Warfare and Evolving Standards of Environmental
Protection under the International Law of War, 15 FLA. J. INTL L. 481, 495 (2002-2003); International
Humanitarian Law and The Challenges Of Contemporary Armed Conflicts, REPORT OF THE INTERNATIONAL
COMMITTEE OF THE RED CROSS, 03/IC/09, 10 (2003).
119

J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law
of War, 15 FLA. J. INTL L. 481, 496 (2002-2003).
120

J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law
of War, 15 FLA. J. INTL L. 481, 492 (2002-2003); United States of America, Annotated Supplement to the
Commanders Handbook on the Law of Naval Operations, Section 8.1.2 (1997); United Kingdom, The Manual
of the Law of Armed Conflict, Section 15.19 (2004); Australia, The Manual on the Law of Armed Conflict, Section
7.10 (2006).
121

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, 2209 (2004).

122

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, 2209 (2004); J.
Dill, Applying the Principle of Proportionality in Combat Operations, Policy Briefing, OXFORD INSTITUTE OF
ETHICS, LAW AND ARMED CONFLICT, 3 (2010).

42

immediately began shipping aid to the city when Porvos ceased to do so.123 Since the
provision of humanitarian aid in such scenarios is a common practice,124 Prosecution
submits that this outcome was foreseeable. Consequently, the contamination of Mirror
Lake was also unlikely to produce a definite or concrete military advantage. Hence the
damage caused by OSTYs attack does not satisfy the proportionality test under
Art.8(2)(b)(iv).
III.

JUDGE HASTY SHOULD NOT BE DISQUALIFIED UNDER ARTS. 40 & 41


OF THE ICC STATUTE

38. Yunkel has requested the disqualification of J.Hasty under Arts.40 & 41 of the ICC Statute,
due to the opinions expressed by her in a publication. Prosecution submits that Yunkel has
no locus standi to bring such proceedings of disqualification [A]. In any event, the standard
for disqualification has not been met [B].
A. YUNKEL HAS NO LOCUS STANDI TO INITIATE PROCEEDINGS OF DISQUALIFICATION.
39. As per Art.41(2)(b) of the Statute, the right to request a judges disqualification is only
granted to the Prosecutor or the person being investigated or prosecuted. Art.19(2) of the
Statute indicates that a State challenging the Courts jurisdiction, as Yunkel is, would not
fall within this category. In Katanga,125 this Court ruled that the provisions of the ICC
Statute pertaining to a judges disqualification must be interpreted strictly, considering the
extraordinary nature of the remedy. The Court, in that case, denied the victims
representatives request for disqualification precisely because they fell outside the scope of
Art.41(2)(b). Prosecution submits that Yunkel must also be denied locus standi to request
J.Hastys disqualification for identical reasons.
B. J.HASTYS OPINION DOES NOT MEET THE STANDARD FOR DISQUALIFICATION
40. There exists a strong presumption of impartiality in favor of a Judge.126 To rebut this
presumption, it must be shown that an objective observer would apprehend definite bias on

123

9, The Problem.

124

The European Consensus on Humanitarian Aid, EUROPEAN COMMISSION, 5 (available at


http://ec.europa.eu/echo/files/media/publications/consensus_en.pdf).
125

Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07, Decision on Disqualification of Judge Christine
Van den Wyngaert, 45.
126

The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on Disqualification of
Judge Sang-Hyun Song, 18; The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo
Jamus, Case No. ICC-02/05-03/09, Decision on Disqualification of a Judge, 14.

43

reading the impugned opinion.127 Prosecution submits that J.Hastys expressed opinion
does not meet this standard, as it does not take a conclusive position on the issues in the
present case. It merely proposes that piracy may someday trigger this Courts jurisdiction,
and that the recruitment and use of child pirates could be tried as a crime against
humanity.128 Even the title of the book Emerging Issues in International Criminal Justice
is indicative of this inconclusive nature, as it suggests that the opinion was not expressed
in relation to existing law. In Prosecutor v. Abdallah,129 this Court held that a previouslyexpressed, inconclusive legal opinion on the actions of AU and South Sudan would not
require a judges disqualification from cases involving those parties. Similarly, in The
Prosecutor v. Omar Hassan Ahmad Al Bashir, the Court ruled that a judges participation
in a fact-finding mission to Darfur would not disqualify him from participating in cases
regarding that situation in Darfur, because it did not indicate a definite bias.130 Hence,
Prosecution submits that J.Hastys inconclusive opinion is insufficient to require her
disqualification.
41. In addition, to establish the bias of a Judge, an impugned opinion must also have a sufficient
link with the case at hand.131 J.Hastys published opinion was specifically expressed in
relation to the scourge of Somalia[n] Piracy,132 and makes no mention of the parties to
the present case. There is nothing to indicate any factual similarity between these two
instances of piracy. Hence, Prosecution submits that J.Hasty should not be disqualified.


127

The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on Disqualification of
Judge Sang-Hyun Song, 17; The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision
on Disqualification of a Judge, 9-10.
128

12, The Problem.

129

The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC02/05-03/09, Decision on Disqualification of a Judge, 9-10.
130

The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-76, Decision on the Request for
Excusal of a Judge, 16.
131

The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC02/05-03/09, Decision on Disqualification of a Judge, 17.
132

12, The Problem.

44

CONCLUDING SUBMISSIONS

Wherefore in light of the questions presented, arguments advanced and authorities cited, the
Prosecution respectfully requests this Court to adjudge and declare that:

I.

The recruitment and use of juvenile pirates by OSTY can be tried as a crime against
humanity within the jurisdiction of the International Criminal Court under Article 7 of
the ICC Statute

II.

OSTYs cross-border contamination of Porvoss water supply can constitute the war
crime under Article 8(2)(b)(iv) of the ICC Statute

III.

J. Hasty should not be disqualified under Articles 40 and 41 of the ICC Statute

On Behalf of the Prosecution

Counsel for the Prosecution



















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