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TEAM CODE: TH

THE INTERNATIONAL COURT OF JUSTICE


AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS
1st VITSOL MOOT COURT COMPETION ON INTERNATIONAL LAW

THE CASE CONCERNING ARMED ACTIVITIES AND THE TREATMENT OF


CITIZENS OF THE DEMOCRATIC REPUBLIC OF ORANGIA

DEMOCRATIC REPUBLIC OF ORANGIA


(Applicant State)
v.
STATE OF LEMANIA
(Respondent State)
JOINTLY NOTIFIED TO THE COURT ON 20 OCTOBER 2015

MEMORIAL FOR APPLICANT

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

TABLE OF CONTENTS

INDEX OF AUTHORITIES- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -iii


STATEMENT OF JURISDICTION- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - viii
STATEMENT OF FACTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ix
STATEMENT OF ISSUES- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xi
SUMMARY OF ARGUMENTS- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xii
ARGUMENTS ADVANCED- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1-15

ISSUE I.

LEMANIAS DRONE ATTACKS AND THE USE OF FORCE ARE IN


VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF
ORANGIA

AND

AMOUNTED

TO

THE

VIOLATION

OF

THE

PROVISIONS OF THE UN CHARTER ON THE USE OF FORCE AND


OTHER RELEVANT INTERNATIONAL LAW1-7
ISSUE II.

DETENTION AND ILL TREATMENT OF ORANGIAN CITIZENS BY


LEMANIA ARE IN VIOLATION OF ITS OBLIGATIONS UNDER
INTERNATIONAL HUMANITARIAN LAW, SPECIFICALLY DEALING
WITH

OCCUPATION

AND

THE

RELEVANT

HUMAN

RIGHTS

TREATIES SPECIFICALLY THE INTERNATIONAL COVENANT ON


CIVIL AND POLITICAL RIGHTS OF 1966 AND THE CONVENTION
AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT OF 1984 AND UNDER OTHER
RELEVANT INTERNATIONAL LAW.7-15

Prayer- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xv

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

INDEX OF AUTHORITIES

CASES, ADVISORY OPNIONS AND ARBITRAL RULINGS


INTERNATIONAL COURT OF JUSTICE
1.

Bosnia & Herzegovina v. Serbia & Montenegro, 2007, I.C.J., 91

2.

Case Concerning the Military and Paramilitary Activities in and against


Nicaragua (Nicaragua v.United States of America), Merits, [1986], ICJ
Reports, 14

3.

Case concerning United states diplomatic and consular staff in Tehran


(Iran v. United States of America), [1980] I.C.J Rep 3

4.

Corfu Channel (U.K v. Alb.), 1949 I.C.J 4

5.

Iran v US, Oil Platforms, Judgement, ICJ Rep 2003

6.

Legal Consequences of the Construction of a Wall in the Occupied


Palestinian Territory, ICJ Advisory Opinion, 9 July 2004

7.

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,


[1996] I.C.J Rep 226

8.

See Case Concerning Armed Activities On The Territory Of Congo (Congo


V. Uganda) (2006), 45 I.L.M. 271

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA


1.

Prosecutor v Tadi (Decision on the Defence Motion for Interlocutory


Appeal) (ICTY, IT-94-1-AR72, 2 October 1995)
Prosecutor v Bokoski (ICTY, IT-04-82-T, 10 July 2008)

2.
3.

Prosecutor v. Anto Furundzija, IT-95-17/1-T, Judgement (10 December


1998)
OTHER INTERNATIONAL JUDGEMENTS AND ARBITRAL AWARD

1.

Al-Skeini v. Sec. of State for Defence [2007] UKHL 26, [2007] 3 All E.R.
865

2.

Case Concerning the Barcelona Traction, Light and Power Co, Ltd (New
Application: 1962) (Belgium v. Spain), Judgement of 5 Feb 1970, ICJ
Rep1970

3.

Cyprus v. Turkey, Eur.Comm.H.R., Appl. Nos. 6780/74, 6950/75

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

4.

Guyana v. Suriname (Arbitral tribunal award) ICGJ 370 (PCA 2007) (OUP
reference)

5.

Lighthouses Arbitration, 12 R.I.A.A. 155, 198 (1956);, United states of


America v. Iran (Diplomatic and Consular Staff in Tehran) Judgment of 24
May 1980

6.

Nationality Deswwwcrees in Tunis and Marocco case, P.C.I.J. Rep.,


Series B, No.4, (1923)

7.

Salas and Others v. the United States (US military intervention in


Panama), Report No. 31/93, Case No. 10.573, (Oct. 14, 1993)
TREATIES, CONVENTIONA AND DECLARATIONS

1.

Declaration on Principles of International Law concerning Friendly


Relations and Co-operation among States in accordance with the Charter of
the United Nations of 1970, UN A/RES/25/2625

2.

Hague Convention IV concerning the Laws and Customs of War on


Land, 18 October 1907

3.

International Covent on Civil and Political Rights, 16 Dec. 1966, GA Res


2200A (XXI)

4.

International Law Commissions Draft Articles on State Responsibility of


States for Internationally Wrongful Acts, 26 Jul. 2001, art. 1, U.N. Doc
A/CN.4/L.602/Rev.1 (2001)

5.

Protocol Additional to the Geneva Conventions of 12 August 1949 and


relating to the Protection of victims of International Armed Conflicts, 8
June 1977, 1125 U.N.T.S 609

6.

SC Res; 1368 (2001). UN SCOR. 2001, UN Doc. S/INF/57, 71.

7.

U.N. Doc. A/RES/25/2625

8.

Vienna Convention on the Law of Treaties, opened for signature May 23,
1969, arts. 31-32, 1155 U.N.T.S. 331
BOOKS

1.

AGARWAL H.O, INTERNATIONAL LAW AND HUMAN RIGHTS,


CENTRAL LAW PUBLICATIONS (20th ed, 2013)

2.
3.

ALEXANDER ORAKHELASHVILI, PEREMPTORY NORMS IN


INTERNATIONAL LAW,OXFORD UNIVERSITY PRESS ( 2006)
B. SIMMA, THE CHARTER OF THE UNITED NATIONS (2nd ed.)

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

(2002)
BOWETT, SELF DEFENCE, AND IAN BROWNLIE, PRINCIPLES OF
4.

PUBLIC INTERNATIONAL LAW, SEVENTH EDITION, USE OF


FORCE (2008)
BRUNO SIMMA, ED. THE CHARTER OF THE UNITED NATIONS: A

5.

COMMENTARY, NEW YORK: CAMBRIDGE UNIVERSITY PRESS


(2nded, 2002)

6.

CARLOS FERNNDEZ DE CASADEVANTE ROMANI,


SOVEREIGNTY AND INTERPRETATION OF INTERNATIONAL
NORMS, SPRINGER PUBLICATION (1st, 2007)

7.

D J HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW,


LONDON SWEET & MAXWELL(6th ed., 2004)
DONALD K ANTON, PENELOPE MATHEW & WAYNE MORGAN,

8.

INTERNATIONAL LAW: CASES AND MATERIALS, OXFORD


UNIVERSITY PRESS (1st ed., 2008)
H. STEINBERGER, SOVEREIGNTY, IN MAX PLANK INSTITUTE

9.

OF COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW,


ENCYCLOPEDIA FOR PUBLIC INTERNATIONAL LAW, OXFORD
UNIVERSITY PRESS, Vol. 10 (NORTH HOLAND, 1987)

10.

I.A SHEARER, STARKES INTERNATIONAL LAW OXFORD


UNIVERSITY PRESS ( (11th ed, 1994)

11.
12.

I.A SHEARER, STARKES INTERNATIONAL LAW, OXFORD


UNIVERSITY PRESS 1994) REPRINT. (11th ed. 2013)
ILIAS BANTEKAS AND LUTZ OETTE, INTERNATIONAL HUMAN
RIGHTS LAW AND PRACTICE, CAMBRIDGE UNIVERSITY PRESS
(2013)

13.

J.P. COT & A PELLET, LA CHARTE DES NATIONS UNIES (2nd


ed.)(1991)
JAMES A GREEN, THE INTERNATIONAL COURT OF JUSTICE AND

14.

SELF-DEFENCE IN INTERNATIONAL LAW, HART PUBLISHING


(2009)

15.

JAMES CRAWFORD, BROWNLIES PRINCIPLES OF PUBLIC


INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS (8th ed, 2013)

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

16.

JUS AD BELLUM, JUS IN BELLO, AND JUS POST BELLUM,


RESEARCH HANDBOOK ON INTERNATIONAL CONFLICT AND
SECURITY LAW

17.
18.

MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL


RIGHTS, CCPR COMMENTARY 762 (2005).
MARC WELLER, OXFORD HANDBOOK OF THE USE OF FORCE IN
INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS (2015)

19.

MICHAEL BOTHE, KARL JOSEF PARTSCH, & WALDEMAR A.


SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS (1982)
MICHAEL N. SCHMITT, RESPONDING TO TRANSNATIONAL

20.

TERRORISM UNDER THE JUS AD BELLUM, in INTERNATIONAL


LAW AND ARMED CONFLICT: EXPLORING THE FAULTLINES 175
(2007);
MICHELLE FARRELL, THE PROHIBITION OF TORTURE IN

21.

EXCEPTIONAL CIRCUMSTANCES, CAMBRIDGE UNIVERSITY


PRESS (1st ed., 2013)
MYRES M. MCDOUGAL & FLORENTINO P. FELICANO, THE

22.

INTERNATIONAL LAW OF WAR: TRANSNATIONAL COERCION


AND WORLD PUBLIC ORDER (1994)

23.

NIGEL D. WHITE AND CHRISTIAN HENDERSON, RESEARCH


HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW:
JUS AD BELLUM, JUS IN BELLO AND JUS POST BELLU, EDWARD
ELGAR PUBLISHING LIMITED (2013)

24.

ROBERTA ARNOLD AND NOELLE QUENIVER, INTERNATIONAL


HUMANITARIAN LAW AND HUMAN RIGHTS LAW, MARTINUS
NIJHOFF PUBLISHERS (2008)

25.

RUSSEL AND MUTHER, A HISTORY OF THE UNITED NATIONS


CHARTER (1958)
SARAH JOSEPH, JENNY SCHULTZ, & MELISSA CASTAN, THE

26.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS


8891 (2nd ed. 2004).

27.

SHIV R S BEDI, THE DEVELOPMENT OF HUMAN RIGHTS LAW BY


THE JUDGES OF THE INTERNATIONAL COURT OF JUSTICE,

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

HART PUBLISHING (2007)


28.
29.

STRUCHLER, THE THREAT OF FORCE IN INTERNATIONAL LAW


(2007)
WALTER KLIN AND JORG KUNZLI, THE LAW OF
INTERNATIONAL HUMAN RIGHTS PROTECTION, OXFORD
UNIVERSITY PRESS (2012)
Y. SANDOZ, C. SWINARSKI AND B. ZIMMERMANN

30.

COMMENTARY ON THE ADDITIONAL PROTOCOLS OF JUNE 1977


TO THE GENEVA CONVENTION OF 12 AUGUST 1949 (1987)
YORAM DINESTEIN, WAR, AGGRESSION AND SELF

31.

DEFENSE,NEW YORK: CAMBRIDGE UNIVERSITY PRESS (3rd ed,


2000)

32.

YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE


LAW OF INTERNATIONAL ARMED CONFLICT (2nd ed. 2004)
MISCELLANEOUS

1.

Giuliana Ziccardi Capaldo, Providing a right to Self- Defense against


Large-Scale attacks by Irregular Armed Forces: The Israeli Hezbollah
Conflict, 48 HARV, INTL L.J. 101, 103 (2007)

2.

Jan Klabbers, Rebel with a Cause? Terrorists and Humanitarian Law


(2003) 14 European Journal of International Law

3.

Jianming Shen, National Sovereignty and Human Rights in a Positive Law


Context, (2002) 26 Brooklyn journal of International Law 417

4.

M. Roscini, Threats of Armed Force and Contemporary International


Law, 54 NILR, 2007

5.

Meindersma, Legal Issues Surrounding Population Transfers in Conflict


Situations. (1994) 41 NILR 31

6.

R. Sadurska, Threats of Force, 82 AJIL, 1988, p. 239, and N. White and


R. Cryer, Unilateral Enforcement of Resolution 687: A Threat Too Far?
29 California Western International Law Journal, 1999

7.

Yearbook of the International Law Comission, 1966, vol II,

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STATEMENT OF JURISDICTION

The Democratic Republic of Orangia (Orangia) and the State of Lemania (Lemania) have
entered into a special agreement on 10th October 2015 and agreed to submit this dispute
concerning armed activities and the treatment of citizens of the Democratic Republic of
Orangia to the International Court of Justice in pursuant to Article 40, paragraph 1 of the
Statute of this Court. It is agreed in the special agreement that Orangia would act as
Applicant and Lemania as Respondent. The States jointly notified to the ICJ on 20th October
2015. In accordance with Article 36, paragraph 1 of the Statute, the Court has jurisdiction to
decide all matters referred to it for decision. Also, both parties shall accept the Courts
decision as final and binding and execute it in good faith.

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

STATEMENT OF FACTS
DESCRIPTION OF STATE PARTIES
Orangia- Orangia is a state situated in the continent of Rania. After achieving independence,
it adopted the multiparty system with periodic elections. Orangia is a multiethnic and
multilingual society, with 42% of the people belonging to Newami ethnicity and 33% from
Jaimun ethnicity.
Lemania- Lemania is a State located west of Orangia and both share a huge common border.
Lemania wields a considerable economic power in the region due to its rich oil resources.
Lemania exports its oil extracts to countries on its east through the pipelines laid through the
territory of Orangia.
AGREEMENT
An agreement was entered into between Orangia and Lemania in 1985 that governs the oil
pipeline through Orangia to eastern countries. It contained the various provisions, including
to payment of transit tariff to Orangia for facilitating the pipeline.
POLITICAL SITUATION IN ORANGIA
After independence, ODA has been in long periods of political power with intermittent ruling
by PEP. Both PEP and ODA are accused of representing only the interests of Newami and
Jaimun ethnic groups, respectively. The political skepticism among the other ethnic
minorities, led to the establishment of MUF, an Independent Party, to safeguard the interest
of these minorities. MUF were in favor of radical restructuring of the political and economic
systems in Orangia.
MUF AND ORANGIAS INTERNAL TURMOIL
Immediately after its establishment, MUF gave a call for rallies and protests. Since 2010,
several violent incidents took place in Orangia. Most disturbed part of Orangia was the
province of Westoria. Those arrested confessed to belong to MUF, but was MUF denied any
association to the event. In January 2011, four tourists from Lemania were abducted in
Naturia. The abductors did not reveal their political affiliation, however, they claimed to be
against Lemanias policies vis--vis Orangia and were critical of its support to Orangian
government led by ODA.
COMMENCEMENT OF INTERSTATE TENSION
In 2012, PEP formed the government and adopted anti-Lemanian policies and demanded 50
percent increase in transit. Also, the Visa restrictions that were imposed on Lemania citizens,

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Clashes took place between Orangia and Lemania. Further, Two bomb explosions in
February 2013 took place, individuals from the MUF leadership were arrested.
DRONE ATTACKS AND ATTACKS IN LEMANIA
In April 2013, Lemania carried out three separate drone attacks, in the province of Westoria.
Lemania claimed that those killed were terrorist belonging to MUF. But an enquiry
commission constituted by Orangia reported that those killed in the attacks were having
dinner in civilian clothes, and could not conclusively establish they were members of MUF.
The Diamond Harbour in Lemania was attacked by a truck loaded with explosives leading to
the death of 159 civilians and causing damage to port property. A similar attack was
attempted on LTC.
AIR SRTIKES BY LEMANIA AND SUBSEQUENT OCCUPATION
On August 2013, two air strikes hit the city of Siminalu, targeting the military bases of
Orangia. Orangian forces resorted to counter attacks and destroyed two military aircrafts of
Lemania. Orangias air strike capacity collapsed. Subsequently, Orangia was occupied. On
September 2013 UNSC passed a resolution, recognizing that Orangia was under the
occupation of Lemania led forces. Lemania established IA and IA passed two orders dealing
with detention of suspected MUF citizens for 30 days without trial and introducing
adversarial law system.
FORMATION OF NEW GOVERNMENT
Elections were held under the supervision of UN Officials. A newly emerged political
alliance, OUF formed the government. There was political pressure to enquire into the illegal
activities committed by Lemanian forces during war and occupation, with allegation that
citizens were subjected to illegal detention and torture within Orangia and in other
undisclosed locations.
ENQUIRY AND FINDINGS OF HRO
HRO conducted a finding enquiry and interviewed 128 citizens who were allegedly tortured
and detained. Some claimed that they were subjected to sleep deprivation by way of playing
high decibel music in a brightly lit room for days together, while others claimed that they
were flown blindfolded to different places and tortured.
EPILOGUE
Diplomatic discussions did not lead to any conclusions. Both States decided to refer the
matter to the ICJ by way of a special agreement, in accordance with Article 40(1) of the
Statute of the Court.

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STATEMENT OF ISSUES

ISSUE 1 - LEMANIAS DRONE ATTACKS AND THE USE OF FORCE ARE IN


VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF ORANGIA
AND AMOUNTED TO THE VIOLATION OF THE PROVISIONS OF THE UN
CHARTER ON THE USE OF FORCE AND OTHER RELEVANT INTERNATIONAL
LAW.
ISSUE 2 - DETENTION AND ILL TREATMENT OF ORANGIAN CITIZENS BY
LEMANIA

ARE

IN

VIOLATION

OF

ITS

OBLIGATIONS

UNDER

INTERNATIONAL HUMANITARIAN LAW, SPECIFICALLY DEALING WITH


OCCUPATION
SPECIFICALLY

AND
THE

THE

RELEVANT

INTERNATIONAL

HUMAN

RIGHTS

COVENANT

ON

TREATIES
CIVIL

AND

POLITICAL RIGHTS OF 1966 AND THE CONVENTION AGAINST TORTURE


AND

OTHER

CRUEL,

INHUMAN

OR

DEGRADING

TREATMENT

OR

PUNISHMENT OF 1984 AND UNDER OTHER RELEVANT INTERNATIONAL


LAW.

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

SUMMARY OF ARGUMENTS

Issue 1 - Lemanias drone attacks and the use of force are in violation of sovereignty
and territorial integrity of Orangia and amounted to the violation of the provisions of
the UN charter on the use of force and other relevant international law.
The use of force by Lemania amounted to the violation of the provisions of the U.N. Charter
on the use of force. It is further submitted that Lemania had no right to self-defense against
Orangia under the U.N. Charter since there has been no armed attack against Lemania. It is
further submitted that use of armed force by Lemania against the sovereignty and territorial
integrity of Orangia amounted to Aggression. Further the use of force by Lemania amounted
to the violation of other relevant international law.

Issue 2 - Detention and ill treatment of Orangian citizens by Lemania are in violation of
its obligations under international humanitarian law, specifically dealing with
occupation and the relevant human rights treaties specifically the international
covenant on civil and political rights of 1966 and the convention against torture and
other cruel, inhuman or degrading treatment or punishment of 1984 and under other
relevant international law.

It is submitted that Lemania violated its obligation towards Orangian citizens under IHL and
IHRL. Further it is submitted that obligations under IHRL apply extra-territorially, regardless
of IHL obligations. It is also argued that Lemania just not violated its treaty obligations under
ICCPR and the CAT but also violated Jus Cogens norms.

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ARGUMENTS ADVANCED

ISSUE 1 - LEMANIAS DRONE ATTACKS AND THE USE OF FORCE ARE IN


VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF ORANGIA
AND AMOUNTED TO THE VIOLATION OF THE PROVISIONS OF THE UN
CHARTER ON THE USE OF FORCE AND OTHER RELEVANT INTERNATIONAL
LAW.
1.1. The use of force by Lemania amounted to the violation of the provisions of the U.N.
Charter on the use of force.
Lemania and Orangia, being a member country of the U.N.1 are under an obligation to act in
accordance with the U.N. Charter. The U.N. Charter has various provisions prohibiting the
use of force.2 It is submitted that the threat to use of force, and the use of force by Lemania
violated the provisions of the U.N. Charter. Firstly, there was a use of force under art. 2(4) by
Lemania (A.) Secondly, the use of force did not fall in exception under art. 51.(B.).
A. The use of force by Lemania violated Art. 2(4).
The art. 2(4) of the U.N. Charter prohibits the threat of use of force as well as the use of force
by its members3. Further art. 2(3) states that the international disputes between members shall
be settled by peaceful means4. The ICJ, in the Corfu Channel5 case, Congo6 case and the
Nicaragua7 Case, has highlighted that the use of force, without valid defense, violates art.
2(4). In the present case, therefore it is contended that Lemania violated art. 2(4) by a threat
to use of force (i.) as well as the actual use of force (ii.).
i. Threat to use of force
A threat of force consists in an express or implied promise by a government of a resort to
force conditional on non-acceptance of certain demands of that government8. In Guyana v.

Fact Sheet 26
U.N. Charter Preamble, Art. 1(1), 2(4), 42.
3
BROWNLIE, USE OF FORCE, p. 364
4
U.N. Charter art. 2(3)
5
United Kingdom v. Albania, Merits [1949] I.C.J. Rep. 4 [Hereinafter referred as Corfu Channel Case]
6
DRC v. Uganda (Case concerning Armed Activities on the Territory of Congo) Judgement, ICJ Rep 2005, 42165 and 345 [Hereinafter referred as DRC v. Congo]
7
Nicaragua v. U.S. (Military and Paramilitary Activities in and against Nicaragua), Merits, ICJ Rep 1986
[Hereinafter referred as Nicaragua Case]
8
N. STURCHLER, THE THREAT OF FORCE IN INTERNATIONAL LAW, CAMBRIDGE, 2007; M.
Roscini, Threats of Armed Force and Contemporary International Law, 54 NILR, 2007, p. 229; R. Sadurska,
2

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Suriname9, the Court stated that a signalled intention to use force if certain events occur
could constitute a threat under Art. 2(4).
In the instant case, the President of Lemania signalled Orangia that it should take the
responsibility for the alleged attack on Lemania and that action will be taken against those
involved in the attack.10 This signal coupled with the movement of Lemanian forces towards
Orangia11 highlights the threat to the use of force by Lemania. Subsequently, the threats
were made real when Orangia did not take any responsibility for the alleged acts.
ii. Use of force
Art. 2(4) of the U.N. Charter and the norms of customary international law12 (CIL) prohibit
the use of force. In the Nicaragua13 Case, it was stated that the most grave forms of use of
force are those involving armed attack14 and the court further suggested that the term force
in art. 2(4) includes armed forces15. It prohibits the use of armed forces, whether amounting
to war or not. 16 Also, the prevailing practice of States and International organization
including the 1970 declaration17 is to treat military force as falling under the prohibition of
the use of force.18
In the present case, the use of drone attacks19 and the use of air strikes coupled with military
action by Lemania led coalition forces 20 amounted to a series of armed attacks. Thus, the
series of armed attacks amounted to use of force by Lemania against Orangia.
B. Lemania had no right to self-defense against Orangia under the U.N. Charter.
In response to the defense of self-defense as raised by Lemania21, it is submitted that Lemania
did not have a right to self-defense in the present situation.
i. There has been no armed attack against Lemania
Threats of Force, 82 AJIL, 1988, p. 239, and N. White and R. Cryer, Unilateral Enforcement of Resolution
687: A Threat Too Far?, 29 California Western International Law Journal, 1999, p. 243.
9
Guyana v. Suriname (Arbitral tribunal award) ICGJ 370 (PCA 2007) (OUP reference) 439, 445
10
Fact Sheet 15
11
Fact Sheet 16
12
Nicaragua Case, Jurisdiction and Admissibility, 73; Nicaragua Case, Merits, 187-190
13
Nicaragua Case, 191
14
Iran v US, Oil Platforms, Judgement, ICJ Rep 2003 [Hereinafter referred as Oil Platforms Case]
15
Nicaragua case, pp. 14, 128
16
D J HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW, LONDON SWEET &
MAXWELL, p. 890 (6th ed., 2004)
17
U.N. Doc. A/RES/25/2625, Preamble
18
H. STEINBERGER, SOVEREIGNTY, IN MAX PLANK INSTITUTE OF COMPARATIVE PUBLIC
LAW AND INTERNATIONAL LAW, ENCYCLOPEDIA FOR PUBLIC INTERNATIONAL LAW,
OXFORD UNIVERSITY PRESS, Vol. 10 (NORTH HOLAND, 1987) p. 609
19
Fact Sheet 11
20
Fact Sheet 16, 17
21
Fact Sheet 23, 26

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a. There has been no use of military force against Lemania


Armed attack is a precondition for self-defence. 22 In the Oil Platforms 23 case, the court
repeated that self-defense is only allowed in response to an armed attack. Acts of MUF
lacked the standard of the armed attack defined by ICJ in Nicaragua Case24 case in terms of
aggression. Further, the use of force in exercise of the right of self-defense has to be
necessary and proportionate, and that the envisaged target must be legitimate military target,
open to attack in exercise of self-defense.25 Accordingly, the excessive and disproportionate
use of force by Lemania coupled with the failure to report the same to SC negates Lemanias
claim of self-defense.
b. The attacks against Lemania were by non-state actors; it was not imputable to
Orangia
In Nicaragua case, an act of non-State actors is attributable to a State when the State has
effective control over their acts, 26 reaffirmed in DRC v. Uganda 27 and Bosnia &
Herzegovina v. Serbia & Montenegro. 28 Further, ICJ states that, leaders selection,
organisation, choosing of targets, etc. measures effective control.29 But in the present case,
there is no fact that indicates such control of Orangia over MUF. In the Tadic30 case, the
overall control theory over the group was propounded, which calls for financial and
strategic control to establish overall control. However, since the Orangian Government
neither coordinated nor planned (or financially supported) the attacks, hence they are not
liable for the alleged MUF activities.
The right of a State to act in self-defense is against an armed attack perpetrated by or on
behalf of another State.31 Under art. 11 of GA Resolution 56/83, an initially private conduct
becomes an act of the State only if, and to the extend, that the State acknowledges and adopts
the conduct as its own. The article is a codification of what various tribunals32 have done in

22

U.N Charter art. 51; Corfu Channel Case; Nicaragua Case 14


Oil Platforms Case 51
24
Nicaragua Case 194, 195
25
Nicaragua Case 14,94, 103; Threat or Use of Nuclear Weapons, 1996 I.C.J., pp. 226,245
26
Nicaragua Case, 64-65 115.
27
DRC v. Uganda 147
28
Bosnia & Herzegovina v. Serbia & Montenegro, 2007, I.C.J., 91 377-415
29
Nicaragua Case, 112
30
Prosecutor v. Tadic, Case no. IT-94-I-AR72, Decision on the Defense Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) (ICTY Appeals Chamber), 131 [Hereinafter referred as Tadic Case]
31
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory
Opinion, 9 July 2004, 39 [Hereinafter referred as Construction of the Wall Case]
32
Lighthouses Arbitration, 12 R.I.A.A. 155, 198 (1956);, United states of America v. Iran (Diplomatic and
Consular Staff in Tehran) Judgment of 24 May 1980, p. 24
23

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

the past. As the actions of MUF cannot be attributed to Orangian Government, the use of
force by Lemania does not come under the ambit of the right of self-defense.
ii. Lemania does not have a right to Self Defense against Orangia.
The use of force by Lemania against Orangia is patently illegal, as the acts of MUF, a nonstate actor, cannot be attributed to the State of Orangia. In the connection with the ICJs
interpretation, the right of self-defense has long been required the armed attack to be
imputable to a state.33 As a result, in cases in which an armed attack comes from a non-state
armed group, there is a need to demonstrate that it can be attributable to a state.
Since, in the present case, the attacks of Lemania are not attributable to the State; Lemania
has no right to self-defense against it.
In the case of Congo v. Uganda34, the ICJ held that there is no actual right to use military
force triggered by a state, which is unwilling or unable to control militant groups based in
their country. Therefore, it is submitted that the alleged failure or inability of Orangia to take
action against the alleged activities of MUF against Lemania, did not give rise to any right by
Lemania to exercise military forces on the territory of the Orangia. 35
1.2. The use of force and Drone Attacks by Lemania violated the Sovereignty and
Territorial Integrity of Orangia.
The states must avoid the threat to use of force and the use of force against the territorial
integrity of another state.36 It is the duty upon states to refrain from military..or any other
form of coercion aimed against the political independence or territorial integrity of any state
as reaffirmed in the 1970 Declaration on Principles of International Law37.
In the Island of Palmas38 Case, the Permanent Court of International Justice pointed out that,
sovereignty in the relations between States signifies independence,39 which gives the right
to a State, to the exclusion of any other State, to exercise its State functions within its
territory. Further, in the case concerning Military and Paramilitary Activities in and against
Nicaragua 40 , the International Court of Justice (ICJ) highlighted the principle of nonintervention. The Court further affirmed that acts which breach the principle of nonintervention will also, if they directly or indirectly involve the use of force, constitute a
33

Giuliana Ziccardi Capaldo, Providing a right to Self- Defense against Large-Scale attacks by Irregular Armed
Forces: The Israeli Hezbollah Conflict, 48 HARV, INTL L.J. 101, 103 (2007)
34
DRC v. Uganda Case
35
Factsheet 11, 16, 17
36
Art 2(4)
37
1970 Declaration on Principles of International Law
38
Netherlands v. U.S.A (Island of Palmas Case) (1928) 2 Rep Intl Arbitral Awards 831
39
Id.
40
Nicaragua Case, p. 108, 206

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

breach of the principle of non-use of force.41 The prohibition of interference is the most
important corollary to the principle of sovereignty. 42
Territorial sovereignty43 is the framework within which the public power is exercised44. It is
the ostensible sign of the sphere within which the public power of the state is exercised. 45 In
the Corfu Channel 46 case, the International Court of Justice pointed out that, between
independent states, respect for territorial sovereignty is an essential foundation of
international relations.47 The principle of respect for territorial sovereignty is also directly
infringed by the unauthorized overflight of a State's territory by aircraft belonging to or under
the control of the government of another State.48 Thus in the present case, it the use of drone
attacks and the air strikes violated the territorial sovereignty of Orangia.
1.3. Use of armed force by Lemania against the sovereignty and territorial integrity of
Orangia amounted to Aggression
In International law, while dealing with the prohibition of use of force, aggression should also
be examined. 49 Aggression is defined in the U.N. Assembly resolution50, art. 1 of which
states that:
Aggression is the use of armed force by a State against the sovereignty, territorial integrity
or political independence of another State, or in any other manner inconsistent with the
Charter of the United Nations, as set out in this Definition. 51
The ICJ referred to this definition in the Nicaragua52 case. Also, in DRC v. Congo53, the court
took cognizance of the definition and decided in the favour of DRC in this matter. This
highlights that this court has earlier referred to this definition in the previous landmark cases,
and can refer the same in this case to determine the obligations of Lemania.
41

Id.
Jianming Shen, National Sovereignty and Human Rights in a Positive Law Context, (2002) 26 Brooklyn
journal of International Law 417, p. 420
43
Nationality Deswwwcrees in Tunis and Marocco case, P.C.I.J. Rep., Series B, No.4, (1923)
44
D J HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW, LONDON SWEET &
MAXWELL, p. 890 (6th ed., 2004), p. 195
45
Nationality Decrees in Tunis and Morocco case, P..I. J. Rep., Series B, No. 4, (1923) pp. 106, 108
46
U.N. Charter art. 2(4)
47
Corfu Channel Case
48
Nicaragua Case pp.14, 128
49
The Max Planck Encyclopedia of Public International Law, Vol, 10 Oxford University Press p. 611(supra
note)
50
G.A. Res. 3314 (XXIX) (14 December 1974) [Hereinafter referred as G.A. Res. 3314]
51
G.A. Res. 3314 Art. 1
52
Nicaragua Case
53
DRC v. Congo Case
42

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

It is submitted that Lemania committed acts of aggression as defined under art. 3 of the
impugned resolution.54 A war of aggression constitutes a crime against international peace
for which there is international responsibility55. Thus, it is contended that Lemania should be
held responsible for the acts of aggression committed against Orangia.
1.4. The use of force by Lemania amounted to the violation of other relevant
international law.
A. The use of force and aggression by Lemania violated the principles of jus cogens and
obligations erga omnes
The Nicaragua judgment 56 recalled that the International Law Commission (ILC) had in
196657 expressed the view that the prohibition of the use of force constitutes jus cogens. Also
Ian Brownlie includes the prohibition of the use of force among the least controversial
examples of jus cogens.58
Further, in its judgment in the Barcelona Traction case, it was recognized by the ICJ that
outlawing of acts of aggression is an obligation erga omnes.59 Also since jus cogens norms
are intransgressible by virtue of art. 53 of VCLT, therefore derogation of the same by
Lemania is impermissible.
B. The use of force by Lemania violated the customary international law.
In ICJs jurisprudence, the ICJ in several judgments like the Nicaragua60 case, Israeli Wall
Advisory Opinion61 case has acknowledged that the prohibition of the use of force is a part of
customary international law. Thus, the prohibition of the use of force is today both a norm of
treaty law and of international customary law.62

54

G.A. Res. 3314 Art. 3


G.A. Res. 2625 (XXV) (24 October 1970), G.A. Res. 3314, Art 5 (2)
56
Nicaragua, Merits, para 190.
57
Yearbook of the International Law Comission, 1966, vol II, 270, para 1.
58
James Crawford, Brownlies Principles of Public International Law (8 th edn, Oxford: Oxford University
Press, 2012), 595-6
59
Case Concerning the Barcelona Traction, Light and Power Co, Ltd (New Application: 1962) (Belgium v.
Spain), Second Phase, Judgement of 5 Feb 1970, ICJ Rep1970, para 34.
60
Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility, 73; Military
and Paramilitary Activities in and against Nicaragua, Merits, 187-190
61
Israeli Wall Advisory Opinion
62
The Max Planck Encyclopedia of Public International Law, Vol, 10 Oxford University Press p. 609
55

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

Issue II - Detention and ill treatment of Orangian citizens by Lemania are in violation of
its obligations under international humanitarian law, specifically dealing with
occupation and the relevant human rights treaties specifically the international
covenant on civil and political rights of 1966 and the convention against torture and
other cruel, inhuman or degrading treatment or punishment of 1984 and under other
relevant international law.

2.1. Lemania violated its obligation towards Orangian citizens under IHL.
A. Obligations under IHL apply in the instant case.
The GCs apply to any partial or total occupation of the territory of a High Contracting
Party.63 The commentaries prepared by the ICRC provide that for an armed conflict to occur
the occurrence of de facto hostilities is sufficient.64 Thus, an international armed conflict is a
conflict between the armed forces of two or more states.65
In the instant case, the fact that Lemania led coalition forces took control of Orangia and it
was placed under the administration of IA66 , along with the SC taking note of Lemanias
occupation clearly shows that Orangia was under the occupation of Lemania.
B. IHL dealing with occupation has been violated.
i.

Hague regulations have been violated.

In the case of Legality of the Threat or use of Nuclear Weapons,67 the ICJ concluded that the
provisions of Hague regulations68 have become a part of the customary international law69
and thus are binding upon the parties in the instant case.
Art. 4370 highlights that the occupant must preserve, as far as possible, the existing laws of
the territory.71 The ICJ interpreted that an occupying powers obligations set out in art. 43
comprises the duty to secure respect for the applicable rules of international human rights
63

GC art. 2(2)
J. PICTET COMMENTARY; IV GENEVA CONVENTION, RELATIVE TO THE PROTECTION OF
CIVILIAN PERSON IN TIMES OF WAR (Geneva, International Committee of the Red Cross 1958) pp. 20-21,
35-36.
65
Tadi Case 84.
66
Fact sheet 17, 18
67
Legality of the Threat or use of Nuclear Weapons Case
68
REGULATIONS ANNEXED TO HAGUE CONVENTION IV RESPECTING THE LAWS AND
CUSTOMS OF WAR ON LAND, signed at The Hague, 18 October 1907, reprinted in A. ROBERTS AND R.
GUELFF, DOCUMENTS ON THE LAWS OF WAR, (London, OUP, 3rd ed. 2000) p. 69.
69
Nicaragua Case p.256, 75
70
Hague Regulations art. 43
71
Malcom Shaw
64

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

law and international humanitarian law, to protect the inhabitants of the occupied territory
against acts of violence, and not to tolerate such violence by any third state.72 Thus, by not
respecting the laws of Orangia and by conducting violence on Orangian citizens,73 Lemania
violated its obligations under the Hague regulations and the CIL.
ii.

GCs and APs relating to occupation have been violated.

Art. 2 74 provides that the GC is applicable all cases of partial or total occupation of the
territory of a High Contracting Party. AP I is applicable to all situations in which GC is
applicable75. Thus, there being an occupation by Lemania in the instant case, the GC IV and
AP I apply in this case. Together, these conventions represent the minimum level of
protection to which everyone is entitled in times of armed conflict, even unprivileged
belligerent.76 It is submitted that Lemania has violated its obligations under these provisions.
The GC IV protects the civilians who, as a result of armed hostilities or occupation, were in
the hands of the state of which they were not nationals through the protected persons
regime77. The requirement that persons be in the hands of a party to the conflict has been
interpreted broadly. It does not require that the persons in question be physically detained. It
is enough that they are located in territory that is under the control of a party to the conflict or
another occupying power.78 These protections in turn impose obligation upon the occupier.
Protected persons shall at all times be humanely treated, and shall be protected especially
against all acts of violence or threats thereof. 79 All protected persons shall be treated with the
same consideration by the Party to the conflict in whose power they are, without any adverse
distinction based .. or political opinion.80
Further, art. 75 of AP I provides for list of fundamental guarantees that protect all persons
who fall into the hands of a party to an armed conflict. These articles elaborate on the

72

Legality of the Threat or use of Nuclear Weapons 178 : DRC v. Congo,pp. 168, 231 and 242 ff.
Factsheet 19
74
GC art. 2
75
AP I art. (1)(3)
76
b1 48,49
77
GC IV art. 4
78
Jean S Pictet et al, Commentary on the Geneva Conventions (ICRC 1960) vol 4, 50
79
GC art 3 r/w AP I art 9(1);GC art. 27
73

80

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

guarantees set out in Common art. 3 of the GCs. Art. 75 of AP I is, a legal safety net 81 part
of customary international law.
The art. 382 and art. 7583 protect against violence to life, health or physical or mental wellbeing, including murder, torture, corporal punishment and mutilation; outrages upon personal
dignity, including humiliating or degrading treatment, enforced prostitution or indecent
assault; taking of hostages; and collective punishments. The provision also contains robust
guarantees of due process for anyone charged with a crime. IHL further provides that persons
prosecuted for offences related to the armed conflict must be tried according to recognized
principles of judicial procedure.84
Further, these basic levels of protections apply to everyone, including terrorists. 85 It is
submitted that in case of doubt as to a persons status the person shall be considered a
civilian86 and the fact that there may be persons present within a civilian population who do
not come within the definition of civilians does not deprive the population as a whole of its
civilian character.87 Thus, the presence of the alleged terrorists does not deprive the entire
population of the protection of the AP I and thus Lemania was under the obligation to grant
fundamental guarantees to the population.
iii. Internment of Orangian Citizens violated IHL
In the occupied territories, mass forcible transfers, as well as, deportations and internment of
protected persons from the occupied territory to other states remain prohibited, regardless of
the motive.88 IHL provides that the civilian population should not to be displaced for reasons
related to the conflict unless the security of civilians requires it.89
When civilians are interned for reasons pertaining to the armed conflict, the GC IV90 contains
detailed provisions on the conditions the detention regime needs to fulfill. 91 The national

81

HANS-PETER GASSER, PROTECTION OF THE CIVILIAN POPULATION, IN THE HANDBOOK OF


HUMANITARIAN LAW IN ARMED CONFLICTS 281 (Dieter Fleck ed., 1995)
82
GC art. 3
83
AP I art. 75
84
GC art 3; AP I art 75(4)
85
Jan Klabbers, Rebel with a Cause? Terrorists and Humanitarian Law (2003) 14 European Journal of
International Law 299.
86
AP I art. 50
87
AP I art 50(3).
88
Art. 49, GC IV; C. Meindersma, Legal Issues Surrounding Population Transfers in Conflict Situations.
(1994) 41 NILR 31
89
JONATHAN CROWE & KYLIE WESTON- SCHEUBER: PRINCIPLES OF INTERNATIONAL LAW
(2013)
90
Additional Protocol I, art 85(4)(a); Jean-Marie Henckaerts and Louise Doswald-Beck, Customary
International Humanitarian Law (CUP 2005) rules 12931.
91
GC IV art. 49, 79-141,; JUS AD BELLUM, JUS IN BELLO, AND JUS POST BELLUM, RESEARCH
HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW,

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

legislation applicable in the territory in which they are detained will continue to apply92 and
the interned persons must be released as soon as the reasons, which necessitated their
internment no longer exists.93
2.2.Lemania violated its obligation towards Orangian citizens under IHRL.
A. Obligations under IHRL apply extra-territorially, and regardless of IHL obligations
A growing body of international jurisprudence confirms that IHRL may apply
extraterritorially to occupied territories. 94 This reasoning has moreover been supported by
international bodies such as the Security Council 95 or the Parliamentary Assembly of the
Council of Europe 96 .The ICJ, emphasized in broad and unmistakable terms that (all)
international human rights instruments are applicable in respect of acts done by a State in
the exercise of its jurisdiction outside its own territory, particularly in occupied territories97.
The lex specialis character of the law of belligerent occupation does not exclude the
application of human rights to the occupied population.98
B. Lemania violated its treaty obligations under ICCPR and the CAT
i.

Drone attacks and Air-Strikes violated Art.6 of ICCPR

Art. 6 of ICCPR protects the right to life, which has been described by the Human Rights
Committee (HRC) as the supreme right from which no derogation is permissible 99 and
measures should be taken by states to prevent arbitrary killing by their security forces.100
The HRC, in the recent concluding observations on Israel, reaffirmed that a State party
should ensure that all its agents uphold the customary principles of proportionality and

92

GC IV art. 117
GC IV art. 132
94
Eur.Comm.H.R., Cyprus v. Turkey, Appl. Nos. 6780/74, 6950/75, 2 EUR.COMM.H.R. DEC. & REP. 125
(1975);Eur.Comm.H.R., Cyprus v. Turkey, Appl. No. 25781/94, 86-A EUR.COMM.H.R. DEC. & REP. 104 (1986);
Eur.Ct.H.R.Loizidou v. Turkey (Preliminary Objections), (Mar. 23, 1995), Series A Vol. 310. : I.A.Comm.H.R.,
Salas and Others v. the United States (US military intervention in Panama), Report No. 31/93, Case No. 10.573,
(Oct. 14, 1993), ANN. REP. I.A.C.H.R. 312 (1999); I.A.Comm.H.R., Coard and Others v. the United States (US
military intervention in Grenada), Report No. 109/99, Case No. 10.951, (Sept. 29, 1999), ANN. REP. I.A.C.H.R.
(1999). : UK Court of Appeal, The Queen (on the application of Mazin Mumaa Galteh Al Skeini and Others) v.
The Secretary of State for Defence, Case No. C1/2005/0461, C1/2005/0461B, (Dec. 21, 2005), E.W.C.A.
Civ.1609 (2005). : Committee on Economic, Social and Cultural Rights (CESCR), Concluding observations:
Israel (May 23, 2003), UN Doc. E/C.12/1/Add.90, 15 and 31.
95
S.C. Res. 1456, U.N. Doc (June 8, 2004).
96
Parliamentary Assembly Council of Europe, Resolution 1386 (June 24, 2004), 17.
97
DRC v. Uganda 216 : Construction of the wall 109
98
DRC v Uganda p. 6, 216; Construction of the Wall case, 107-12
99
General Comment 6, 1.
100
General Comment 6, 3.
93

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

necessity in their responses to terrorist threats and attacks.101 It was also emphasized that
State parties should exhaust all measures for the arrest and detention of a person suspected to
be involved in terrorist activities before resorting to the use of force.102
The commentary on ICCPR clearly enumerates that extra judicial killings of individuals
suspected of involvement in terrorist activities is completely illegal and strictly prohibited by
the ICCPR. 103 Also, the HRC has confirmed that States must investigate all killings,
especially when they are perpetrated by State agents 104 and a failure to investigate, or an
inadequate investigation, will generate a breach of the right to a remedy105.
Finally, the HRCs resolution regarding the usage of Drones in counter-terrorism and military
operations, which clearly Urges all States to ensure that any measures employed to counter
terrorism, including the use of remotely piloted aircraft or armed drones, comply with their
obligations under international law, including the Charter of the United Nations,
international human rights law and international humanitarian law, in particular the
principles of precaution, distinction and proportionality.106

In light of the above submissions, it is clear that Lemania is responsible for violations of its
obligations under the above-mentioned provisions of ICCPR by killing 44 Orangian citizens
by a series of Drone attacks107 and, causing death of large number of military personnel by
way of air-strikes108.
ii.

Arbitrary Detention without any legal proceedings violated ICCPR

The ICCPR protects the liberty and security of a person 109 including protection against
arbitrary arrest110. The HRC has commented that the drafting history of art. 9(1) [of ICCPR],
confirms that arbitrariness must be interpreted more broadly to include the elements of

101

Concluding Observations on Israel (2010) UN doc CCPR/C/ISR/CO/3 : (2003) UN doc CCPR/CO/78/ISR,


para 15
102
Id.
103
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS CASES, MATERIALS
AND COMMENTARY 3RD EDITION SARAH JOSEPH AND MELISSA CASTAN (OXFORD
UNIVERSITY PRESS) p. 169 8.06
104
Id. p.176 8.16
105
ICCPR art 2(3) in conjunction with ICCPR art. 6.
106
A/HRC/25/L.32
107
Factsheet 11
108
Factsheet 16
109
ICCPR art. 9,
110
General Comment 8

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inappropriateness, injustice and lack of predictability. 111 Further, HRC has declared that
detention of people for their political views clearly violates art. 9(1) of the impugned
covenant. In cases of preventive detention, for reasons of public safety, it must be controlled
by the guarantees under Article 9 of the covenant and must not be arbitrary, and should be
based on grounds and procedures established by law.112

Also, people detained on criminal charges must be brought promptly before a judicial officer
who rules on whether the detention will continue.113 In the case of Nazarov v. Uzbekistan114,
delay of five days was held to be a breach art.9(3). Article 9(4) entitles any person who has
been arrested or detained for whatever reason to challenge the lawfulness of his/her detention
in a court without delay. 115 This right seems to stem from the legal principle of habeas
corpus, and exists regardless of whether deprivation of liberty is actually unlawful.116
Further art. 14 117 of the covenant clearly specifies that for determination of any criminal
charge against a person, he/she will be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The aim of this provision is to ensure
the proper administration of justice.118 Thus it is humbly submitted that Lemania violated the
abovementioned provisions of ICCPR by arbitrary detaining more than 1000 citizens119 under
the order (IA 4/2013)120 passed by the interim authority empowering Lemania led forces to
detain the citizens of Orangia on suspicion of having links with MUF, without any legal
proceedings.
iii.

Torture amounts to violation of ICCPR and CAT

The definition of torture 121 contained in the CAT, and accepted as customary IHL 122 , is
comprised of a number of elements123, especially those causing severe pain or suffering.124 It
111

Van Alphen v The Netherlands (305/88)


ICCPR art. 9(1)
113
THE ICCPR, CASES, MATERIALS AND COMMENTARY, SARAH JOSEPH AND MELISSA CASTAN
(3rd ed. ) Pg. 368 (9(3))
114
Nazarov v. Uzbekistan 6.2.
115
Marques de Morais v. Angola (1182/02) : Portorreal v. Dominican Republic (188/84) : Torres v. Finland
(291/88) : Vuolanne v. Finland
116
Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 235
112

117
118

General Comment 13, 1.

119
120
121

Convention Against Torture and Other. Art. 1 (1)


See Prosecutor v. Zejnil Delalic et al., IT-96-21-T, Judgment (16 November 1998) at para. 459 (International
Criminal Tribunal for the Former Yugoslavia, Trial Chamber).
122

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suggests an aggravated form of cruel, inhuman and degrading treatment or punishment.125


In this case, the combined use of stress positions, hooding, subjection to noise, deprivation of
sleep, and deprivation of food and drink, when accompanied physical beating are found to be
acts that are in derogation of provision against torture and ill-treatment.126 The act inflicted
by the Lemanian forces violates the, absolute and non-derogable127 right against torture of the
Orangian citizens.
Art. 7 of ICCPR, provides for the right against torture, cruel and degrading Treatment. 128 This
is specified as a non-derogable right

129

and is accorded with the widest possible

application130. The acts of the Lemanian forces were in violation of this provision, which
seeks to to protect both the dignity and the physical and mental integrity of the
individual.131
2.3. The two interim orders violated IHL and IHRL.
It is humbly submitted that under GC IV132 and art. 75(4) of AP I 133 the individuals accused
or convicted against penal laws in the occupied territory must be given fair trail guarantees at
all times134. Further, the accused has a right to an impartial and regularly constituted court
respecting the generally recognized principles of regular judicial procedure.135 Art. 71(2) GC
IV recognizes the right to be tried as rapidly as possible. The right to trial without undue
delay is fully established in both IHRL and international criminal law136.

Further, the ICJ stated that the application of human rights under occupation is a CIL and the
occupier must take all measures in its power to restore, and ensure, as far as possible, public
123

Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary
(oxford University Press, 2008) p.28
124
Convention Against Torture, art. 1(1)
125
Denmark et al v. Greece (1969) 12 Yearbook of the ECHR, p. 186
126
Michelle Farrell, The Prohibition of Torture in Exceptional Circumstances, Cambridge University Press,
(2013), p.70; Ireland v. United Kingdom (App. No. 5310/71)(Report of the Commission, 25 January 1976),
p.402;; Selmouni v. France (App No. 25803/94) ECHR 28 July 1999, para 101..
127
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),
1984. Art. 2 (2); European Convention on Human Rights, Art. 15(1)(2).
128
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, art. (c) [ICCPR]
129
Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR commentary 2nd Edn. (2005), p. 157.
130
Barry M Klayman, The Definition of Torture in International Law (1978) 51 Temple Law Quarterly, 466.
131
UNHRC, General Comment 20 (1992)
132
Art. 65 -77 GC IV
133
Protocol Additional to GC of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflict (Protocol 1), U.N. Doc. A/32/144, Annex I, II (1977) [hereinafter AP I]
134
GC art. 3
135
AP I art. 75(4)
136
ICCPR art. 9(3), 14(3)(c)

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order and safety, while respecting, unless absolutely prevented the laws in force in the
country.137 The British Court in Al-Skeini quoted Art. 43 of the Hague Regulations for the
proposition that the occupants obligation is to respect the laws in force, not to introduce
laws and the means to enforce them (for example courts and a judicial system) such as to
satisfy the requirements of the convention.138
The first order of IA139, empowered the Lemanian led forces to detain the citizens of Orangia
on the mere suspicion of having links with MUF for a period of 30 days without any legal
proceedings. This order gives enormous power to the Lemania led forces and violated the
afore-stated guarantees. Even if Lemania contented that the order was to combat alleged
terrorist attack by MUF, even then the IHL and IHRL obligations continue to apply. The SC
resolutions 1456140 and 1624141, stress that any measure taken to combat terrorism must
comply with IHRL. The second order of IA142, established the adversarial system of criminal
courts in place of the then existing criminal justice. This act of the IA violated the duty of the
occupying power to respect and protect the laws in force in the occupied territory143.

2.4. Lemania violated its obligations under other relevant international law.

The prohibition on torture is widely recognized as a peremptory norm of international law or


jus cogens. 144 Such norms are intransgressible in nature and absolutely prohibit torture in all
its forms, and invalidate any attempt to circumvent this prohibition.145 It has the effect of delegitimizing and invalidating any legislative, administrative, judicial or executive act
authorizing torture. 146 Lemanias treatment of the Orangian citizens post-detention is a
violation of right against torture, lead to violation of jus cogens and erga-omnes.

137

Hague Regulation art. 43,; DRC v Uganda p. 168, 172-5


Al-Skeini v. Sec. of State for Defence [2007] UKHL 26, [2007] 3 All E.R. 865, 129.
139
IA 4/2013, Fact sheet 19
140
UNSC resolution 1456 (20 January 2003)
141
UNSC resolution 1624 (14 September 2005)
142
IA 5/2013, Fact sheet 19
143
Hague Regulation art. 43; DR. S.K. KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS, CENTRAL
LAW AGENCY, 19th ed. , 2014
144
Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press,
1989), p.31; Michelle Farrell, The Prohibition of Torture in Exceptional Circumstances, Cambridge University
Press, (2013), p.6; Prosecutor v. Anto Furundzija, IT-95-17/1-T, Judgement (10 December 1998) at para. 257
(International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) [Furundzija].
145
Belgium v. Senegal, (2012) ICJ Reports 2012, Separate Opinion of Judge Cancado trindade, para. 182
146
Furundzija, 153
138

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WRITTEN SUBMISSION ON BEHALF OF ORANGIA

PRAYER
WHEREFORE, IN THE LIGHT OF THE ACTS STATED, QUESTIONS PRESENTED, ARGUMENTS
ADVANCED AND AUTHORITIES CITED, THE STATE OF ORANGIA MOST RESPECTFULLY
REQUESTS THIS HONBLE COURT TO ADJUDGE AND DECLARE THAT:

(a) Lemania resort to Use of Force is in violation of the provisions of the U.N Charter

(b) Lemania has committed acts of aggression against Orangia

(c) Lemania should pay compensation for the damage and losses caused to Orangia, as a
result of its armed attack.

(d) Orangia is entitled to reparations and compensation for Lemanias breach of its IHL and
IHRL obligations.
AND TO PASS ANY SUCH ORDER, DISCRETION

& JUDGEMENT AS THIS HONBLE COURT MAY

DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted


Sd/- ______________________
AGENTS FOR THE STATE
OF ORANGIA
Place: The Hague, The Netherlands

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