:

TEAM NO. 25

COUNSEL FOR THE GOVERNMENT OF YUNKEL

ICC MICC
OOT COURT
MOOT COMPETITION
COURT COMPETITION
ININ THEEENGLISH
THE LANGUAGE , 2016
NGLISH LANGUAGE

WORD COUNT: 9,577

 Original: English Date: 21 February, 2016

THE APPEALS CHAMBER

SITUATION IN PORVOS

The Government Counsel’s Submission in the Appeal from the Pre-Trial

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

 
1  
 
 TABLE OF CONTENTS

Index of Abbreviations .............................................................................................................3

Index of Authorities ..................................................................................................................5

Statement of Facts...................................................................................................................19

Issues Raised............................................................................................................................21

Summary of Arguments .........................................................................................................22

Arguments Advanced .............................................................................................................23

I. The recruitment and use of juvenile pirates by OSTY in attacks against the Porvos aid
vessels cannot be tried under Art. 7 of the Rome Statute .....................................................23

a. Attacks on Porvosian-flagged vessels do not qualify as attacks against the civilian

population in the territory of Porvos..................................................................................23

b. The parents of the juveniles consented to their participation in the piratical excursions
...........................................................................................................................................26

c. The number of child pirates does not rise to Art. 7’s numerosity requirement .............28

d. OSTY is not an entity capable of committing crimes under Art. 7 ...............................29

II. The contamination of Mirror Lake cannot be tried under Art. 8(2)(b)(iv) of the Rome
Statute....................................................................................................................................31

a. No conduct by OSTY took place in the territory of Porvos ..........................................32

b. The contamination was not in the course of or in furtherance of an international armed

conflict ...............................................................................................................................33

c. The contamination did not result in widespread, long-term and severe damage...........35

d. The injury was not excessive in relation to the concrete military advantage anticipated
...........................................................................................................................................38

III. Judge Hasty should be disqualified from the present case..............................................40

a. Yunkel has locus standi to request disqualification.......................................................40

b. The standard required for disqualification has been met...............................................41

Concluding Submissions.........................................................................................................42

 
2  
 
 INDEX OF ABBREVIATIONS

¶ Paragraph

¶¶ Paragraphs

Art. Article

Arts. Articles

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

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

ILA International Law Association

ILC International Law Commission

J. Judge

No. Number

OSTY Olmic State of Tyvosh and Yunkel

PCIJ Permanent Court of International Justice

 
3  
 
Prof. Professor

S. Section

UN United Nations

UNGA United Nations General Assembly

UNSC United Nations Security Council

WHO World Health Organisation

 
4  
 
 INDEX OF AUTHORITIES

Books and Articles

Acquaviva, G. Crimes against Humanity ¶ 11

and MAX PLANCK ENCYCLOPAEDIA OF PUBLIC
Pocar, F. INTERNATIONAL LAW (R. Wolfrum ed., 2010)

Adede, Protection of the Environment in Times of Armed ¶¶ 22, 23, 24

Andronico O. Conflict: Reflections on the existing and Future
Treaty Law
1 (1) ANNUAL SURVEY OF INTERNATIONAL &
COMPARATIVE LAW, 161 (1994)

Afriansyah, Arie Environmental Protection and State Responsibility ¶ 23

in International Humanitarian Law
7, INDONESIAN J. INT'L LAW, 242 (2010)

Akehurst, M. Jurisdiction in International Law ¶¶ 2, 3

46 BRITISH YEARBOOK OF INTERNATIONAL LAW, 145
(1972–3)

Akhavan, Payam Contributions of the International Criminal ¶8

Tribunals for the Former Yugoslavia and Rwanda to
Development of Definitions of Crimes against
Humanity and Genocide
94, AMERICAN SOCIETY OF INTERNATIONAL LAW,
279 (2000)

Ambos, Kai TREATISE ON INTERNATIONAL CRIMINAL LAW, VOL. ¶ 27

II (2014)

Angulo, A Community Waterborne Outbreak of ¶ 28

Frederick J. Salmonellosis and the Effectiveness of a Boil Water
Order
87(4) AMERICAN JOURNAL OF PUBLIC HEALTH, 580,
584 (1997)

 
5  
 
Barnes, Ashley The Arctic Environment and International ¶ 24
and Humanitarian Law
Waters, 49 Y.B. INT'L LAW, 213 (2011)
Christopher

Bassiouni, Cherif Crimes Against Humanity: The Case for a ¶ 11

M. Specialised Convention
9(4) WASH. U. GLOBAL STUD. L. REV., 575 (2010)

CRIMES AGAINST HUMANITY IN INTERNATIONAL ¶ 11

CRIMINAL LAW
(2nd edn., 1999)

THE LEGISLATIVE HISTORY OF THE INTERNATIONAL ¶ 11

CRIMINAL COURT: INTRODUCTION, ANALYSIS AND
INTEGRATED TEXT, VOL. 1
(2005)

Boister, N. AN INTRODUCTION TO TRANSNATIONAL CRIMINAL ¶5

LAW
(2012)

Boot, Machteld GENOCIDE, CRIMES AGAINST HUMANITY, WAR ¶8

CRIMES: NULLUM SINE LEGE AND THE SUBJECT
MATTER JURISDICTION OF THE INTERNATIONAL
CRIMINAL COURT
(2002)

Brownlie, Ian PRINCIPLES OF PUBLIC INTERNATIONAL LAW ¶5

(8th edn., 2012)

Carus, W. Seth BIOTERRORISM AND BIOCRIMES: THE ILLICIT USE OF ¶ 28

BIOLOGICAL AGENTS SINCE 1900
(2002)

 
6  
 
Cassese, Antonio THE ROME STATUTE OF THE INTERNATIONAL ¶¶ 2, 3, 11
CRIMINAL COURT: A COMMENTARY, Vol. I
(2002)

Cullen, Holly Does The Ilo Have A Distinctive Role In The ¶7

International Legal Protection Of Child Soldiers?
5 HUM. RTS. & INT'L LEGAL DISCOURSE, 63 (2011)

DeGuzman, CRIMES AGAINST HUMANITY ¶8

Margaret M. ROUTLEDGE HANDBOOK OF INTERNATIONAL
CRIMINAL LAW, 121, 126 (William Schabas and
Nadia Bernaz eds., 2011)

Dormann, Knut War Crimes under the Rome Statute of the ¶ 17

International Criminal Court, with Special Focus on
the Negotiations on the Elements of Crimes
7 MAX PLANCK YEARBOOK OF UNITED NATIONS
LAW, 341 (2003)

Drumbl, Mark A. Child Pirates: Rehabilitation, Reintegration, and ¶ 23

Accountability
46(1) CASE WESTERN RESERVE JOURNAL OF
INTERNATIONAL LAW, 235, 239 (2014)

International Human Rights, International ¶¶ 4, 27

Humanitarian Law, and Environmental Security:
Can the International Criminal Court Bridge the
Gaps
6, ILSA J. INT'L & COMP. LAW, 305 (2000)

Dutton, Yvonne Bringing Pirates to Justice: A Case for Including ¶4

M. Piracy within the Jurisdiction of the International
Criminal Court
11 CHI. J. INT’L L.,197 (2011)

 
7  
 
Duttweiler, Liability for Omission in International Criminal Law ¶ 15
Michael 58(1) INTERNATIONAL CRIMINAL LAW REVIEW, 1
(2006)

Fruili, Michaela Are Crimes against Humanity More Serious than ¶6

War Crimes?
12 EJIL, 329 (2001)

Glind H. and Modern-Day Child Slavery ¶6

Kooijmans, J. 22 CHILDREN & SOCIETY, 150 (2008)

Hansen, Thomas The Policy Requirement in Crimes Against ¶ 13

Obel Humanity: Lessons from and for the Case of Kenya
43(1) THE GEO. WASH. INT’L L. REV., 1 (2011)

Happold, Child Recruitment as a Crime under the Rome ¶¶ 6, 7

Matthew Statute of the International Criminal Court
THE LEGAL REGIME OF THE INTERNATIONAL
CRIMINAL COURT: ESSAYS IN MEMORY OF IGOR
BLISCHENKO (2009)

Haque, Adil Law and Morality at War ¶ 28

Ahmad 8(1) CRIMINAL LAW AND PHILOSOPHY, 79 (2014)

Harvard, Draft Convention on Jurisdiction with Respect to ¶¶ 2, 3

Research in Crime
International Law 29 AM. J. INT’L. L., 435 (1935)

Hoffman, Tamas Squaring the Circle? – International Humanitarian ¶ 17

Law and Transnational Armed Conflicts
HAGUE ACADEMY OF INTERNATIONAL LAW, 5 (2010)

Hulme, Karen WAR TORN ENVIRONMENT: INTERPRETING THE ¶ 25

LEGAL THRESHOLD
(2004)

 
8  
 
Hwang, Phyllis Defining Crimes Against Humanity In The Rome ¶¶ 8, 11
Statute Of The International Criminal Court
22 FORDHAM INT'L L.J, 457 (1999)

ICRC Commentary on the Additional Protocols to the ¶¶ 23, 25, 27

Geneva Conventions
(1987)

Commentary on the Geneva Conventions of 12 ¶¶ 17

August 1949, Volume I
(1952)

Jalloh, C. What makes a Crime Against Humanity a Crime ¶ 13

Against Humanity
28 AM. U. INT'L L. REV, 381 (2013)

Jennings, R. The Limits of State Jurisdiction ¶3

THE COLLECTED WRITINGS OF SIR ROBERT JENNINGS
(1998)

Jescheck, Hans- The General Principles of International Criminal ¶ 13

Heinrich Law Set out in Nuremberg, as mirrored in the ICC
Statute
2 J. INT'L CRIM. JUST, 38 (2004)

Jorgenson, The Protection of Freshwater in Armed Conflict ¶ 24

Nikolai 3(2) JOURNAL OF INTERNATIONAL LAW AND
INTERNATIONAL RELATIONS 57 (2007)

Kraytman, Yana Universal Jurisdiction- Historical Roots and ¶4

Shy Modern Implications
2 BRUSSELS JOURNAL OF INTERNATIONAL STUDIES,
94, 103 (2005)

 
9  
 
Kress, Claus On the Outer Limits of Crimes against Humanity: ¶¶ 12, 13
The Concept of Organization within the Policy
Requirement: Some Reflections on the March 2010
ICC Kenya Decision
23 LEIDEN JOURNAL OF INTERNATIONAL LAW, 855
(2010)

Lawrence, The First Ecocentric Environmental War Crime: ¶¶ 24, 27

Jessica The Limits of Article 8(2)(b)(iv) of the Rome Statute
20 GEO INTERNATIONAL ENVIRONMENTAL LAW
REVIEW, 61 (2008)

Luban, David Calling Genocide by its Rightful Name: Lemkin’s ¶9

Word, Darfur, and the UN Report
7 CHI. J. INT’L L., 1, (2006)

Maxwell, P. ON THE INTERPRETATION OF STATUTES ¶ 13

(6th edn.,1920)

O’Brien, Melanie Where Security Meets Justice: Prosecuting Maritime ¶4

Piracy in the International Criminal Court,
4 ASIAN JOURNAL OF INTERNATIONAL LAW, 81, 81
(2014)

Powderly, Joseph The Rome Statute and the Attempted Corseting of ¶ 13

the Interpretative Judicial Function
THE LAW AND PRACTICE OF THE INTERNATIONAL
CRIMINAL COURT (Carsten Stahn ed., 2015)

Robinson, Darryl Crimes Against Humanity at the Rome Conference ¶8

AMERICAN SOCIETY OF INTERNATIONAL LAW, 43
(1999)

Ryngaert, C. JURISDICTION IN INTERNATIONAL LAW ¶¶ 2, 3, 5

nd
(2 edn., 2015)

 
10  
 
Schabas, William AN INTRODUCTION TO THE INTERNATIONAL ¶¶ 5, 6, 15
A. CRIMINAL COURT (4th edn., 2011)

THE INTERNATIONAL CRIMINAL COURT: A ¶¶ 8, 11, 30

COMMENTARY TO THE ROME STATUTE (2010)

State Policy as an Element of International Crimes ¶ 13

98(3) THE JOURNAL OF CRIMINAL LAW AND
CRIMINOLOGY, 953 (1973)

Schmitt, Humanitarian Law and the Environment ¶ 24

28 DENVER JOURNAL OF INTERNATIONAL LAW AND
POLICY, 265 (2000)

Smith, Jennifer An International Hit Job: Prosecuting Organized ¶8

Crime Acts as Crimes Against Humanity
97(4) GEORGETOWN LAW JOURNAL, 1112 (2009)

Stewart, James Towards a single definition of armed conflict in ¶¶ 18, 19

G. international humanitarian law: A critique of
internationalized armed conflict
85 (850) INTERNATIONAL COMMITTEE OF THE RED
CROSS, 313 (2003)

Syring, Tom A pirate and a refugee: reservations and responses ¶4

in the fight against piracy
7 ILSA J. INT'L & COMP. L, 437, 448 (2011)

Tiefenbrun, Child Soldiers, Slavery, and the Trafficking of ¶7

Susan W. Children
TJSL Legal Studies Research Paper No. 1020341
(2007)

 
11  
 
Tock, Shawn Recruiting and Using Children as Soldiers: The ¶6
Case for Defining the Offence as a Crime against
Humanity
13 DALHOUSIE J. LEGAL STUD., 157 (2004)

Török, Thomas J A large community outbreak of salmonellosis caused ¶ 28

by intentional contamination of restaurant salad
bars
278(5) JAMA 389, 393 (1997)

Vagias, M. THE TERRITORIAL JURISDICTION OF THE ¶¶ 3, 5, 15

INTERNATIONAL CRIMINAL COURT (2011)

Valentine, Trafficking of Child Soldiers: Expanding the United ¶7

Sandrine Nations Convention on the Rights of the Child and
its Optional Protocol on the Involvement of Children
in Armed Conflict
9 NEW ENG. J. INT'L & COMP., 109, 117 (2003)

Voneky, Silja Environment, Protection in Armed Conflict ¶ 23

MAX PLANCK ENCYCLOPEDIA ON PUUBLIC
INTERNATIONAL LAW (2011)

Werle G. and PRINCIPLES OF INTERNATIONAL CRIMINAL LAW ¶¶ 2, 13, 15

Jessberger, F. (3rd edn., 2014).

Willmott, Diedre Removing The Distinction Between International ¶ 23

And Non-International Armed Conflict In The Rome
Statute Of The International Criminal Court
5(1) MELBOURNE JOURNAL OF INTERNATIONAL LAW,
197 (2004)

 
12  
 
Wyatt, Julian Law-making at the intersection of international ¶ 24
environmental, humanitarian and criminal law: the
issue of damage to the environment in international
armed conflict
92 (879) INTERNATIONAL REVIEW OF RED CROSS,
593 (2010)

Cases

ECHR W, X, Y and Z v. The U.K ¶7

[1997] ECHR 20

FRANCE In Re Feld and Newman ¶3

Cour de Cassation, 48 I.L.R 88 (May 25, 1967)

ICC Situation in the Republic of Kenya ¶¶ 11, 12, 13

Case No. ICC-01/09, Decision on the Authorization
of an Investigation March 31, 2010

The Prosecutor v. Abdallah Banda Abakaer ¶ 31

Nourain and Saleh Mohammed Jerbo Jamus
Case No. ICC-02/05-03/09, Decision on
Disqualification of a Judge on April 2, 2012

The Prosecutor v. Jean-Pierre Bemba Gombo ¶¶ 13, 17, 20

Case No. ICC-01/05-01/08, Decision Pursuant to
Article 61(7)(a) and (b) of the Rome Statute on
June 15, 2009

The Prosecutor v. Jean-Pierre Bemba Gombo ¶ 31

Case No. ICC-01/05-01/13, Decision on
Disqualification of Judge Cuno Tarfusser on June
20, 2014

 
13  
 
 The Prosecutor v. Jean-Pierre Bemba Gombo ¶ 30
Case No. ICC-01/05-01/13, Defence request for
leave to appeal on November 26, 2014

The Prosecutor v. Katanga et al ¶ 18

Case No. ICC-01/04-01/07, Decision on the
confirmation of charges on September 30, 2008

The Prosecutor v. Thomas Lubanga, Case No. ICC- ¶¶ 17, 18, 20

01/04-01/06, Decision on confirmation of charges
of Pre-Trial Chamber I on January 29, 2007

The Prosecutor v. Thomas Lubanga Dyilo ¶ 31

Case No. ICC-01/04- 01/06, Decision on
Disqualification of Judge Sang-Hyun Song on June
29, 2015

The Prosecutor v. Thomas Lubanga ¶3

Case No.ICC-01/04-01/06, Decision on ‘indirect
victims’ on April 8, 2009

ICJ Bosnia and Herzegovina v. Serbia and Montenegro ¶ 20

Case concerning application of the convention on
the prevention and punishment of the crime of
genocide
February 26, 2007

ICTY Prosecutor v. Blaskic ¶ 20

Case No. IT-95-14-T (ICTY), Judgment on March
3, 2000

The Prosecutor v. Fatmir Limaj et al. ¶¶ 8, 9, 11

Case No. IT-03-66-T, Trial Chamber II, Judgment
on November 30, 2005

 
14  
 
 The Prosecutor v. Goran Jelisic ¶ 30
Case No. IT-95-10-A, Judgment on July 5, 2001

The Prosecutor v. Kunarac ¶¶ 7, 8

Case No. IT-96-23 & IT-96-23/1-A (ICTY),
Judgment on June 12, 2002

The Prosecutor v. Kupreskic ¶8

Case No. 1T-95-16-T, Judgment of Jan 14, 2000

The Prosecutor v. Tadic ¶8

Case No. IT-94-1-T (ICTY), Judgement of May 7,
1997

The Prosecutor v. Tadic ¶ 18

Case No. IT-94-1-A (ICTY), Decision on the
defence motion for interlocutory appeal on
jurisdiction on October 2, 1995

The Prosecutor v. Tadic ¶¶ 19, 20

Case No. IT-94-1-A (ICTY), Judgment on July 15,
1999

The Prosecutor v. Zlatko Aleksovski ¶ 20

Case No. IT-95-14/1-A, Judgment on March 24,
2000

PCIJ The Case of the S.S. “Lotus” (Turkey v. France) ¶¶ 2, 3

1927 PCIJ Ser. A No. 10, 23

SCSL Prosecutor v. Issa Hassan Sesay ¶ 31

Case No. SCSL-04-15-AR15, Decision on
Disqualification of Justice Robertson on March 2,
2009, Special Court for Sierra Leone

USA Doe v. Drummond ¶8

US Court of Appeals (11th Circuit, 2014)

 
15  
 
 Legal Acts and Rules

ADDITIONAL Protocol Additional to the Geneva Conventions of ¶¶ 6, 22

PROTOCOL I 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol
I)
8 June 1977

ADDITIONAL Protocol Additional to the Geneva Conventions of ¶6

PROTOCOL II 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts
(Protocol II)
8 June 1977

CRIMINAL Criminal Justice Act (UK), 1992 ¶3

JUSTICE ACT

ELEMENTS OF Elements of Crimes of the International Criminal ¶¶ 3, 6, 13, 15, 27

CRIMES Court, ICC-ASP/1/3

ENMOD Convention on the Prohibition of Military or Any ¶ 22

CONVENTION Other Hostile Use of Environmental Modification
Techniques, United Nations (May 18, 1977)

GENEVA Convention (I) for the Amelioration of the ¶ 17

CONVENTION I Condition of the Wounded and Sick in Armed
Forces in the Field
Geneva, August 12, 1949

OPTIONAL Optional Protocol to the Convention on the Rights ¶6

PROTOCOL TO of the Child on the Involvement of Children in
THE CRC Armed Conflict
(February 12, 2002)

 
16  
 
PALERMO Protocol to Prevent, Suppress and Punish ¶7
PROTOCOL Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations
Convention against Transnational Organized Crime
U.N. Doc. A/55/383 (November 15, 2000)

ROME STATUTE Rome Statute of the International Criminal Court ¶¶ 2, 4, 6, 7, 8,

(July 1, 2002) 10, 13, 30, 31

RULES OF Rules of Procedure and Evidence ¶¶ 30, 31

PROCEDURE AND International Criminal Court, U.N. Doc.
EVIDENCE PCNICC/2000/1/Add.1 (2000)

UNCLOS United Nations Convention on the Law of the Sea ¶4

(1982)

Other Sources

AMNESTY Universal Jurisdiction: The Duty of States to Enact ¶4

INTERNATIONAL and Implement Legislation
AI Index: IOR 53/002/2001

CCD REPORT Report of the Conference of the Committee on ¶¶ 22, 23

Disarmament, Vol. I
U.N. Doc. A/31/27 (1976)

ICRC How is the Term “Armed Conflict” Defined in ¶ 22

International Humanitarian Law?
ICRC Opinion Paper (March 2008)

ICRC Report on International Humanitarian Law ¶¶ 26, 27

and The Challenges of Contemporary Armed
Conflicts
03/IC/09 (2003)

 
17  
 
 ICRC Report on International Humanitarian Law ¶¶ 17, 27
and the challenges of contemporary armed conflicts
31IC/11/5.1.2 (2011)

ICRC Statement of 8 July 1998 Relating to the ¶ 27

Bureau Discussion Paper in Document
A/CONF.183/C.1 /L.53, UN Doc.
A/CONF.183/C.1/L.53

ILA Final Report on the Meaning of Armed Conflict in ¶ 17

International Law
Use of Force Committee (2010)

NHS Overview of Salmonella Infection ¶ 25

available at:
http://www.nhs.uk/Conditions/salmonella-
infection/Pages/Introduction.aspx/

COMMITTEE ON Report of the Committee on Child Labour, 87th ¶7

CHILD LABOUR Session of International Labour Conference (1999)

UN WAR CRIMES United Nations War Crimes Commission Project ¶8

COMMISSION (1942)

WHO WHO Guidelines for Drinking-water Quality: ¶ 28

Recommendations
(2008)

 
18  
 
 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, OSTY’s membership has increased to over
50,000 members.

In January 2014, OSTY forces indigenous to Tyvosh launched a coordinated series of attacks
which resulted in its gaining control over all of 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 Tyvosh’s government. In order to bring a halt to these shipments,
OSTY converted two dozen vessels from Lance Raider’s shipping fleet into 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 had successfully captured 30 Porvos-flagged vessels, taken 550 Porvosian crew
members hostage and ransomed them, and confiscated $10 million worth of cargo.

In these attacks, OSTY used approximately 2,000 pirates. Around 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 to share a percentage of the piratical booty
with the parents of the juveniles. 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, which
supplied half of Porvos’ fresh water, unless Porvos ceased its aid shipments. When Porvos
refused, OSTY contaminated the rivers with Salmonella, which resulted in an outbreak of
illness, causing 50 deaths and 3,000 hospital visits. Most of the victims were among the frail

 
19  
 
elderly and young children. The shipments were halted by Porvos with immediate effect after
the attack.

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 Court’s 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 Court’s 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 Court’s Statute. 


Consequently, the Pre-Trial Chamber authorized the Prosecutor to investigate the

aforementioned crimes. Yunkel has appealed against this decision.

 
20  
 
 ISSUES RAISED

-I-

WHETHER THE RECRUITMENT AND USE OF JUVENILE PIRATES BY OSTY IN ATTACKS AGAINST THE
PORVOS AID VESSELS CAN BE TRIED AS A CRIME AGAINST HUMANITY WITHIN THE JURISDICTION OF
THE INTERNATIONAL CRIMINAL COURT UNDER ARTICLE 7 OF THE ROME STATUTE 


-II-

WHETHER OSTY’S CONTAMINATION OF MIRROR LAKE CAN BE TRIED UNDER ARTICLE 8(2)(B)(IV) OF
THE ROME STATUTE

-III-

WHETHER J. HASTY SHOULD BE DISQUALIFIED UNDER ARTICLES 40 AND 41 OF THE ICC STATUTE

 
21  
 
 SUMMARY OF ARGUMENTS

I. The recruitment and use of juvenile pirates by OSTY in attacks against the Porvos aid
vessels cannot be tried as a crime against humanity under Art. 7 of the Rome Statute. This is
because the recruitment and use of the juvenile pirates did not occur on Porvosian territory.
Further, the attacks directed against the Porvosian vessels did not rise to the gravity of the
crimes listed in Art. 7. In any case, the crime of enslavement cannot be made out since the
parents of the juveniles consented to their participation. The consensual recruitment and use
of juveniles cannot amount to trafficking or slave-like treatment. Additionally, only 1000
juvenile pirates were recruited, from across the entire population of Tyvosh and Yunkel. This
does not meet the numerosity requirement of a “widespread” or “systematic” attack under Art.
7. Finally, OSTY is not an entity capable of committing crimes against humanity under Art. 7,
since it is not a state or parastatal organization. In any case, the requirement of an
“organization” should be narrowly construed to exclude OSTY, as per the principle of in
dubio pro reo.

II. The contamination of Mirror Lake by OSTY cannot by tried as a war crime under Art.
8(2)(b)(iv) of the Rome Statute. The ICC has jurisdiction only over criminal “conduct” that
occurs on the territory of a state party. In the present case, the criminal conduct of poisoning
the rivers occurred outside the territory of Porvos, and thus, territorial jurisdiction over the
alleged crime is not established. Further, the contamination was not in furtherance of an
international armed conflict, as required under Art.8(2)(b). This is because international
armed conflict can only be between states, and OSTY’s acts are not attributable to any state.
In any case, the contamination did not cause widespread, long-term, and severe damage,
because Salmonella does not have severe effects on human health, and the spread of the
illness was limited in temporal and geographic scope. Finally, the attack was not excessive in
relation to the concrete and direct military advantage perceived by OSTY. This is because
OSTY’s honest, subjective perception that the contamination would lead to the halting of the
aid shipments is sufficient to meet the test of proportionality under Art. 8(2)(b)(iv).

III. Judge Hasty should be disqualified under Arts. 40 and 41 of the Rome Statute because her
impartiality has been adversely affected. This is because she has previously published an
opinion on the issue of whether the recruitment and use of juvenile pirates would amount to a
crime under Art. 7 of the Rome Statute, which is a matter directly in issue in the present case.

 
22  
 
 ARGUMENTS ADVANCED

I. The recruitment and use of juvenile pirates by OSTY in attacks against the Porvos aid
vessels cannot be tried under Art. 7 of the Rome Statute
1 Juveniles were recruited from Tyvosh and Yunkel for a year of piratical service by Lance
Raider and his lieutenants.1 However, the recruitment and use of these juvenile pirates cannot
be tried as a crime against humanity under Art. 7 of the Rome Statute because the attacks on
Porvos-flagged vessels in the high seas do not qualify as attacks against a civilian population
in the territory of Porvos [a]. In any case, the parents of the juveniles consented to their
participation in the piratical excursions [b]. Further, the number of child pirates does not rise
to Article 7’s implicit “numerosity requirement” [c]. Finally, OSTY is not an entity capable of
committing crimes against humanity [d].

a. Attacks on Porvosian-flagged vessels do not qualify as attacks against the civilian

population in the territory of Porvos
2 In the present case, the recruitment and use of juvenile pirates by OSTY in attacks against the
Porvos-flagged vessels is sought to be tried as a crime against humanity.2 The prosecution
may argue that the recruitment and use of child pirates constitutes the crime of enslavement.
As per the principle of objective territoriality, the alleged crime would fall within the
jurisdiction of the court if any of its constituent elements occurred on board Porvos-flagged
vessels.3 An “attack against any civilian population” is a contextual element of the crime of
enslavement.4 Such attacks require multiple commissions of acts listed under Art. 7(1).5
However, neither the recruitment and use of child pirates [1], nor the attacks against the
Porvos-flagged vessels [2] constituted attacks against a civilian population on the territory of
Porvos.

                                                                                                                         
1
¶ 7, The Problem.

2
¶ a, The Problem.

3
The Case of the S.S. “Lotus” (Turkey v. France) 1927 PCIJ Ser. A No. 10, 23; M Akehurst, Jurisdiction in
International Law, 46 BRITISH YEARBOOK OF INTERNATIONAL LAW, 145, 152 (1972–3); Harvard Research in
International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INT’L. L., 435, 445 (1935);
A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, Vol. I, 567
(2002); C. Ryngaert, JURISDICTION IN INTERNATIONAL LAW, 78 (2nd edn., 2015).
4
Art. 7(2)(a), Rome Statute of the International Criminal Court (July 1, 2002) (“Rome Statute”); G. Werle & F.
Jessberger, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 333 (3rd edn., 2014).
5
Art. 7(2)(a), Rome Statute.

 
23  
 
 1. The recruitment and use of child pirates was not carried out on the territory of
Porvos
3 OSTY recruited juvenile pirates only from the territories of Tyvosh and Yunkel, and the
juveniles were used on board OSTY pirate ships.6 The prosecution may argue that using the
juvenile pirates in attacks against Porvosian vessels extended the crime to Porvosian territory.
However, such extension would only be justified if the acts on the Porvosian vessels
amounted to constituent or essential elements of the crime of enslavement.7 A constituent
element is one in the absence of which an offence cannot be legally made out.8 The elements
of the crime of enslavement are only concerned with deprivation of liberty imposed by the
perpetrator on the victim,9 and not with any consequent attacks carried out by the victim. As
per the Lotus case, the attacks on the Porvosian vessels would only establish the ICC’s
jurisdiction over harms that were “a direct physical result” of such attacks.10 The recruitment
and use of child pirates was not a direct physical result of these attacks, since it preceded the
attacks. Thus, while the juvenile pirates may have attacked the Porvosian vessels, these
attacks were not relevant for making out the crime of enslavement. This reasoning is also
supported by the decision in Lubanga, where the Trial Chamber found that the harm caused
due to attacks by child soldiers is not linked to the harm caused to child soldiers by their
recruitment and use.11 Thus, the recruitment and use of child pirates did not constitute an
attack against the civilian population on the territory of Porvos.

                                                                                                                         
6
¶ 7, The Problem.

7
The Case of the S.S. “Lotus” (Turkey v. France) 1927 PCIJ Ser. A No. 10, 23; M Akehurst, Jurisdiction in
International La, 46 BRITISH YEARBOOK OF INTERNATIONAL LAW 145, 152 (1972–3); HARVARD RESEARCH IN
INTERNATIONAL LAW, 29 AJIL (Supp. 1935) 435, 445; A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT: A COMMENTARY, Vol.I, 567 (2002); C. Ryngaert, JURISDICTION IN INTERNATIONAL LAW, 78
(2nd edn., 2015).
8
M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 129 (2011); In Re Feld
and Newman, Cour de Cassation, 48 I.L.R 88 (May 25, 1967); S. 2, Criminal Justice Act (UK), 1992.
9
Art.7(2)(c), Elements of Crimes of the International Criminal Court, ICC-ASP/1/3, 5 (“Elements of Crimes”).

10
The Case of the S.S. “Lotus” (Turkey v. France) 1927 PCIJ Ser. A No. 10, 23; C. Ryngaert, JURISDICTION IN
INTERNATIONAL LAW, 78 (2nd edn., 2015); R. Jennings, The Limits of State Jurisdiction in THE COLLECTED
WRITINGS OF SIR ROBERT JENNINGS, 887-893, note 5 (1998).
11
The Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06, Decision on ‘indirect victims’ on April 8,
2009, ¶52.

 
24  
 
 2. The attacks against the Porvos-flagged vessels did not constitute attacks against a
civilian population
4 An attack against a civilian population under Art.7 occurs when the acts listed under Art. 7(1)
are carried out multiple times against a civilian population.12 These acts involve crimes of the
most serious nature,13 such as murder, torture, and rape.14 In the present case, the acts
committed by OSTY involved capturing Porvosian ships, taking crew members hostage for
ransom, and confiscating cargo.15 Prima facie, these acts do not constitute any of the grave
crimes listed in Art. 7. In fact, holding cargo and crew members for ransom have been
identified as acts of piracy,16 which were specifically excluded from the purview of the Rome
Statute.17 This is because they are not considered international crimes of the same seriousness
as crimes against humanity.18

5 The prosecution may argue that the attacks against the Porvosian vessels amounted to a crime
against humanity because they resulted in the denial of humanitarian aid to Quirth. However,
even if the denial of humanitarian aid is a crime under Art. 7, the attacks on the aid vessels do
not establish the ICC’s jurisdiction over such crime. This is because such a crime was not
“committed” on board the Porvosian vessels in accordance with either principle of
territoriality. As per the principle of subjective territoriality, the ICC would have jurisdiction
if the denial of aid was effected through attacks launched from the Porvosian ships. As per the

                                                                                                                         
12
Art.7(2)(a), Rome Statute.

13
Preamble, Rome Statute; Tom Syring, A pirate and a refugee: reservations and responses in the fight against
piracy, 7 ILSA J. INT'L & COMP. L, 437, 448 (2011).
14
Art. 7(1), Rome Statute.

15
¶ 6, The Problem

16
Art. 101, United Nations Convention on the Law of the Sea, (1982); Yvonne M. Dutton, Bringing Pirates to
Justice: A Case for Including Piracy within the Jurisdiction of the International Criminal Court, 11 CHI. J. INT’L
L.,197, 210 (2011).
17
Yvonne M. Dutton, Bringing Pirates to Justice: A Case for Including Piracy within the Jurisdiction of the
International Criminal Court, 11 CHI. J. INT’L L.,197, 237 (2011); Tom Syring, A pirate and a refugee:
reservations and responses in the fight against piracy, 7 ILSA J. INT'L & COMP. L, 437, 448 (2011); Melanie
O’Brien, Where Security Meets Justice: Prosecuting Maritime Piracy in the International Criminal Court, 4
ASIAN JOURNAL OF INTERNATIONAL LAW, 81, 81 (2014).
18
Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation, AI
Index: IOR 53/002/2001, 1 (2001); Yana Shy Kraytman, Universal Jurisdiction- Historical Roots and Modern
Implications, 2 BRUSSELS JOURNAL OF INTERNATIONAL STUDIES, 94, 103 (2005); Mark A Drumbl, Child Pirates:
Rehabilitation, Reintegration, and Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW, 235, 239 (2014).

 
25  
 
 principle of objective territoriality, the ICC would have jurisdiction if the consequences of the
denial of aid were experienced on the Porvosian vessels.19 In the present case, the attacks
were launched from the OSTY pirate ships while the consequential elements of the crime
were experienced in Tyvosh.20 Thus, there is not sufficient nexus between Porvosian territory
and the alleged crime of denial of humanitarian aid to the people of Quirth. At best, the harms
caused aboard the Porvosian vessels are incidental “effects” of the denial of aid directed at
Tyvosh. The effects doctrine, being highly controversial,21 cannot be used to establish the
jurisdiction of the ICC in the present case. This is because it would amount to an
extraterritorial extension of jurisdiction,22 which is not contemplated under the Rome
Statute.23

b. The parents of the juveniles consented to their participation in the piratical

excursions
6 Prosecution may argue that the recruitment and use of child pirates amounted to the crime of
enslavement under Art. 7(1)(c). Admittedly, the recruitment and use of child soldiers in armed
conflict is prohibited under several international humanitarian law instruments.24 However,
crimes against humanity are more serious offences than violations of the law of armed
conflict.25 Thus, only certain instances of recruitment and use of child soldiers would
constitute the crime against humanity of enslavement.26 Enslavement involves the “exercise

                                                                                                                         
19
Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 458 (8th edn., 2012); C. Ryngaert, JURISDICTION IN
INTERNATIONAL LAW, 78 (2nd edn., 2015); N. Boister, AN INTRODUCTION TO TRANSNATIONAL CRIMINAL LAW,
140 (2012).
20
¶ 5,6, The Problem.

21
Iain Cameron, International Criminal Jurisdiction, Protective Principle in MAX PLANCK ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW, ¶ 8 (2007).
22
Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 461 (8th edn., 2012); N. Boister, AN INTRODUCTION
TO TRANSNATIONAL CRIMINAL LAW, 141 (2012).

23
W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 82 (4th edn., 2011); M. Vagias,
THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 162 (2011).
24
Art. 8(2)(b)(xxvi), Rome Statute; Art. 77(2), Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Art.
4(3)(c), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977; Optional Protocol to the Convention
on the Rights of the Child on the Involvement of Children in Armed Conflict (February 12, 2002).
25
W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 95 (4th edn., 2011); Michaela
Fruili, Are Crimes against Humanity More Serious than War Crimes?, 12 EJIL, 329 (2001).
26
Shawn Tock, Recruiting and Using Children as Soldiers: The Case for Defining the Offence as a Crime
against Humanity, 13 DALHOUSIE J. LEGAL STUD., 157, 175 (2004); Matthew Happold, Child Recruitment as a
 
26  
 
 of any or all of the powers attaching to the right of ownership over a person.”27 It includes
trafficking in children or reducing them to a servile status.28 The prosecution may argue that
the juveniles in the present case were trafficked, or that they were subject to practices similar
to slavery.

7 In the present case, the parents of the juveniles consented to their recruitment and use in
piratical excursions.29 The Appeals Chamber of the ICTY has observed that consent is
relevant for determining whether any of the powers attaching to the right of ownership have
been exercised over child soldiers.30 In fact, under the Palermo Protocol on trafficking in
children,31 consent is the key element in determining whether the recruitment and use of
children constitutes trafficking.32 Under The Worst Forms of Child Labour Convention,
slavery-like practices include only the “forced or compulsory recruitment” of children for use
in armed conflict.33 The ECHR has categorically held that where parental consent has been
given, the recruitment and use of minors in armed forces cannot be said to amount to slave-
like treatment.34 Thus, the crime of enslavement does not encompass recruitment and use of
juveniles when it is carried out with parental consent.

                                                                                                                                                                                                                                                                                                                                                                                           
Crime under the Rome Statute of the International Criminal Court, THE LEGAL REGIME OF THE INTERNATIONAL
CRIMINAL COURT: ESSAYS IN MEMORY OF IGOR BLISCHENKO, 26 (2009); H. Glind and J. Kooijmans, Modern-
Day Child Slavery, 22 CHILDREN & SOCIETY, 150, 155 (2008).
27
Element 1, Art.7(1)(c), Elements of Crimes, 5.

28
Footnote 11, Art.7(1)(c), Elements of Crimes, 5.

29
¶7, The Problem.

30
The Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A (ICTY), Judgment on June 12, 2002, ¶120.

31
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. A/55/383
(November 15, 2000).
32
Susan W. Tiefenbrun, Child Soldiers, Slavery, and the Trafficking of Children, TJSL LEGAL STUDIES
RESEARCH PAPER NO. 1020341, 12 (2007); Sandrine Valentine, Trafficking of Child Soldiers: Expanding the
United Nations Convention on the Rights of the Child and its Optional Protocol on the Involvement of Children
in Armed Conflict, 9 NEW ENG. J. INT'L & COMP., 109, 117 (2003).
33
Art. 3, Rome Statute; Report of Committee on Child Labour, 87TH SESSION OF INTERNATIONAL LABOUR
CONFERENCE, ¶151-152 (1999); Holly Cullen, Does The Ilo Have A Distinctive Role In The International Legal
Protection Of Child Soldiers?, 5 HUM. RTS. & INT'L LEGAL DISCOURSE, 63, 74 (2011); Matthew Happold, Child
Recruitment as a Crime under the Rome Statute of the International Criminal Court, THE LEGAL REGIME OF
THE INTERNATIONAL CRIMINAL COURT: ESSAYS IN MEMORY OF IGOR BLISCHENKO, 23 (2009).
34
W, X, Y and Z v. The U.K, [1997] ECHR 20.

 
27  
 
 c. The number of child pirates does not rise to Art. 7’s numerosity requirement

8 The contextual requirement of a crime against humanity under Art 7 is that it should have
been part of a “widespread or systematic” attack against any civilian population.35 The
requirement of a “widespread” or “systematic” attack indicates that Art. 7 is concerned with
the perpetration of criminal acts on a very large scale.36 Further, the requirement that the
attack be directed against a civilian population also implies an element of scale.37 Where a
substantial number of victims are targeted, an attack can be said to be directed against a
“population” rather than against individuals. Thus, the number of victims is an indicator of
whether an attack is widespread or systematic and directed against a civilian population.38

9 In Limaj, the ICTY trial chamber found that even hundreds of abductions carried out by the
KLA did not constitute a widespread or systematic attack against a civilian population.39 This
was because the abductions were relatively few in number, “in the context of the population of
Kosovo as a whole.”40 Hence, the persons affected by the attack must be viewed in the context
of the civilian population of the relevant territory.41 In the present case, around 1000 juveniles
                                                                                                                         
35
Art. 7(1), Rome Statute.

36
The Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A (ICTY), Judgment on June 12, 2002, ¶94; The
Prosecutor v. Tadic, Case No. IT-94-1-T (ICTY), Judgement of May 7, 1997, ¶648; The Prosecutor v.
Kupreskic, Case No. 1T-95-16-T, Judgment of January 14, 2000, ¶ 543; Margaret M. DeGuzman, CRIMES
AGAINST HUMANITY IN ROUTLEDGE HANDBOOK OF INTERNATIONAL CRIMINAL LAW, 121, 126 (William Schabas
and Nadia Bernaz eds., 2011); William Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY ON
THE ROME STATUTE, 147 (2010); Machteld Boot, GENOCIDE, CRIMES AGAINST HUMANITY, WAR CRIMES:
NULLUM SINE LEGE AND THE SUBJECT MATTER JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT (2002);
Payam Akhavan, Contributions of the International Criminal Tribunals for the Former Yugoslavia and Rwanda
to Development of Definitions of Crimes against Humanity and Genocide, 94, AMERICAN SOCIETY OF
INTERNATIONAL LAW, 279, 280 (2000); Jennifer M. Smith, An International Hit Job: Prosecuting Organized
Crime Acts as Crimes Against Humanity, 97(4) GEORGETOWN LAW JOURNAL, 1112, 1136 (2009); Phyllis
Hwang, Defining Crimes Against Humanity In The Rome Statute Of The International Criminal Court, 22
FORDHAM INT'L L.J, 457, 502 (1999).
37
The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II, Judgment on November 30,
2005, ¶ 218; Doe v. Drummond, Amicus curiae brief, US Court of Appeals (11th Circuit, 2014); UNITED
NATIONS WAR CRIMES COMMISSION PROJECT, 193 (1942); Darryl Robinson, Crimes Against Humanity at the
Rome Conference, AMERICAN SOCIETY OF INTERNATIONAL LAW, 43, 47 (1999).
38
The Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A (ICTY), Judgment on June 12, 2002, ¶ 95.

39
The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II, Judgment on November 30,
2005, ¶¶ 209, 210.
40
The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II, Judgment on November 30,
2005, ¶ 210.
41
David Luban, Calling Genocide by its Rightful Name: Lemkin’s Word, Darfur, and the UN Report , 7 CHI. J.
INT’L L., 1, 10 (2006).

 
28  
 
 have been recruited from the territories of both Tyvosh and Yunkel.42 However, the combined
population of these two countries is 2.5 million.43 In this context, the number of juvenile
pirates is too low, and the recruitment too geographically diverse,44 to indicate a “widespread”
or “systematic” attack directed against any civilian population. Thus, the number of child
pirates does not fulfill Art. 7’s numerosity requirement.

d. OSTY is not an entity capable of committing crimes under Art. 7

10 For an attack to fall under Art. 7 of the Rome Statute, it should have been committed pursuant
to or in furtherance of a “State or organizational policy” to commit such attack.45 This lays
down a test for determining whether an entity is capable of committing crimes against
humanity. In the present case OSTY is not an entity capable of committing crimes under Art.
7, because it is not a state or parastatal entity [1]. In any case, Art. 7 should be construed
strictly to exclude organisations such as OSTY [2].

1. Only state and parastatal entities are capable of committing crimes under Art. 7

11 Crimes against humanity are essentially concerned with the abuse of power by state actors.46
Prof. Cherif Bassiouni, who chaired the drafting committee at the Rome Conference, has
clarified that the test of Art. 7(2) does not refer to non-state actors.47 The words
“organizational policy” were intended to include policies of organisations within a state, such

                                                                                                                         
42
¶ 7, The Problem.

43
¶ 1, The Problem.

44
The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II, Judgment on November 30,
2005, ¶ 218.
45
Art. 7(2), Rome Statute.

46
C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW, 202 (2nd edn., 1999); A.
Cassese, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, Vol. I, 360 (2002);
W. Schabas, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 152 (2010); G.
Acquaviva and F. Pocar, Crimes against Humanity in MAX PLANCK ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL
LAW, ¶ 1 (R. Wolfrum ed., 2010); The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II,
Judgment on November 30, 2005, ¶ 212; Phyllis Hwang, Defining Crimes Against Humanity In The Rome
Statute Of The International Criminal Court, 22 FORDHAM INT'L L.J, 457, 499 (1999).
47
C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW, 244-245 (2nd edn., 1999); M.
Cherif Bassiouni, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT: INTRODUCTION,
ANALYSIS AND INTEGRATED TEXT, VOL. 1, 151-152 (2005).

 
29  
 
 as the military, intelligence, or police.48 Thus, OSTY, being a non-state entity, was not
intended to be covered by the language of Art. 7(2). At most, an “organisation” under Art.
7(2) may refer to a “state-like” non-state entity.49 A “state-like” entity is one that is under
responsible command with a certain degree of hierarchical structure, including some kind of
policy level.50 OSTY does not meet such a characterization, since there is no “hierarchical
structure” or “policy level” as all military and political decisions are taken by one person
alone.51

12 The prosecution may argue that the majority decision in the Kenya authorization decision
should be followed, which did not restrict the meaning of organisation to state-like actors. As
per the majority, any organisation that “has the capability to perform acts which infringe on
basic human values" meets the test of Art. 7(2).52 This definition should not be adopted, as it
would mean that any entity that carried out an attack in accordance with Art. 7(1) would meet
the definition of “organisation.” In other words, it renders the separate contextual requirement
of “organizational policy” under Art. 7(2) redundant.53 In any case, the majority decision
stressed that the determination of whether a given group qualifies as an “organisation” under
the statute must be made on a case-by-case basis.54 There are significant factual differences
between the non-state actors in the Kenya case and OSTY. For instance, in the situation in
Kenya, the non-state organisation had received significant assistance from state entities.55

                                                                                                                         
48
C. Bassiouni, Crimes Against Humanity: The Case for a Specialised Convention, 9(4) WASH. U. GLOBAL
STUD. L. REV., 575, 585 (2010).
49
Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation (J.
Kaul’s Dissenting Opinion) on March 31, 2010, ¶51; W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A
COMMENTARY TO THE ROME STATUTE, 972 (2010).
50
Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation (J.
Kaul’s Dissenting Opinion) on March 31, 2010, ¶51.
51
¶3, The Problem.

52
Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation on
March 31, 2010, ¶ 90;
53
Claus Kress, On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy
Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 LEIDEN JOURNAL OF
INTERNATIONAL LAW, 855, 859 (2010).
54
Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation on
March 31, 2010, ¶ 93;
55
Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation on
March 31, 2010, ¶¶ 116 -128;

 
30  
 
 Since the same does not hold true for OSTY, this test cannot be automatically transplanted to
the present factual situation.

2. In any case, Art. 7 should be interpreted in favour of OSTY

13 As per Art. 22(2) of the Rome Statute, if there is any ambiguity in the definition of a crime,
the definition shall be interpreted in favour of the person being prosecuted, investigated, or
convicted.56 This principle of in dubio pro reo (“when in doubt, for the accused”) is
applicable even to the pre-trial stage in determining the probability of an offence having
occurred.57 The requirement of a state or organizational policy is an important contextual
element of the crimes under Art. 7.58 However, the scope of “organisation” remains
ambiguous, due to inconsistent case law and clear disagreements in by scholars in the field.59
Because of this, a restrictive interpretation of the term should be adopted,60 and the meaning
of organisation should be confined to entities that exhibit state-like features. Thus, OSTY
does not amount to an “organisation” capable of committing crimes against humanity within
the meaning of Art. 7.

II. The contamination of Mirror Lake cannot be tried under Art. 8(2)(b)(iv) of the Rome
Statute
14 Mirror Lake is a source of fresh water in Porvos, bordering the capital city of Dothran. In
March 2015, OSTY threatened to poison the rivers in Yunkel that fed into Mirror Lake unless

                                                                                                                         
56
Art. 22(2), Rome Statute; ¶ 1, Introduction to Art. 7, Elements of Crimes, 5.
57
The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article
61(7)(a) and (b) of the Rome Statute on June 15, 2009, ¶ 31.
58
Art. 7(2)(a), Rome Statute; Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the
Authorization of an Investigation on March 31, 2010, ¶ 79;
59
Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation on
March 31, 2010, ¶79; William A. Schabas, State Policy as an Element of International Crimes, 98(3) THE
JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, 953, 954 (1973); Thomas Obel Hansen, The Policy
Requirement in Crimes Against Humanity: Lessons from and for the Case of Kenya, 43(1) THE GEO. WASH.
INT’L L. REV., 1, 1(2011); C. Jalloh, What makes a Crime Against Humanity a Crime Against Humanity, 28 AM.
U. INT'L L. REV, 381, 409 (2013); G. Werle & F. Jessberger, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW,
1155 (3rd edn., 2014); Claus Kress, On the Outer Limits of Crimes against Humanity: The Concept of
Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23
LEIDEN JOURNAL OF INTERNATIONAL LAW, 855, 859 (2010)
60
P Maxwell, ON THE INTERPRETATION OF STATUTES, 491 (6th edn.,1920); Joseph Powderly, The Rome Statute
and the Attempted Corseting of the Interpretative Judicial Function in THE LAW AND PRACTICE OF THE
INTERNATIONAL CRIMINAL COURT (Carsten Stahn ed., 2015).

491; Hans-Heinrich Jescheck, The General Principles of International Criminal Law Set out in Nuremberg, as
mirrored in the ICC Statute, 2 J. INT'L CRIM. JUST, 38, 41 (2004).

 
31  
 
 Porvos halted its aid shipments to Tyvosh. When Porvos refused, OSTY contaminated the
water with Salmonella, leading to an outbreak of Salmonella-caused illness in Dothran that
lasted three weeks.61 This act of contamination cannot be tried as a war crime under Art.
8(2)(b)(iv) because: no conduct by OSTY took place in the territory of Porvos [a]; the
contamination was not in the course of or in furtherance of an international armed conflict [b];
the damage caused by the contamination was not widespread, long-term and severe [c]; and,
the injury was not excessive in relation to the concrete military advantage anticipated [d].

a. No conduct by OSTY took place in the territory of Porvos

15 Art. 12(2)(a) of the Rome Statute confers jurisdiction on the ICC when the “conduct in
question” occurs on the territory of a state party. The term “conduct” is used in
contradistinction to the term “crime.”62 Art. 20 and Art. 30 of the Rome Statute also use the
terms conduct and crime as distinct from each other. Further, the preamble to the Elements of
Crimes, defines conduct as one of the three components of a crime, along with consequences
and circumstances.63 The prosecution may argue that “conduct” in Art. 12 should be read
broadly to include even the consequences of such conduct. This interpretation cannot be
accepted, as Art. 12 should be strictly construed,64 in accordance with the principle of
legality.65 Thus, the ICC may exercise territorial jurisdiction over the alleged crime only if the
conduct constituting such crime occurred in the territory of Porvos. The conduct constituting
the crime under Art.8(2)(b)(iv) occurs where “the perpetrator launched an attack.”66 In the
present case, the attack was launched by OSTY by poisoning the rivers on the Yunkel side of
the border. Thus, the relevant conduct did not occur in the territory of Porvos.

                                                                                                                         
61
¶ 9, The Problem.

62
G. Werle & F. Jessberger, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 171 (3rd edn., 2014); Michael
Duttwiler, Liability for Omission in International Criminal Law, 58(1) INTERNATIONAL CRIMINAL LAW REVIEW,
1, 58 (2006).
63
¶ 7, Elements of Crimes, 1.

64
W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 82 (4th edn., 2011).

65
M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 144 (2011).

66
Element 1 of Art.8(2)(b)(iv), Elements of Crimes, 19.

 
32  
 
 b. The contamination was not in the course of or in furtherance of an international
armed conflict
16 Art. 8(2)(b) is concerned with violations of the laws and customs applicable in international
armed conflict. Thus, in order for a war crime to be tried under this provision, it must have
occurred in the course of an international armed conflict. In the present case, the
contamination of Mirror Lake by OSTY was intended to bring a halt to the shipment of
humanitarian aid from Porvos to Quirth.67 Thus, the resultant conflict involved OSTY on one
side against the states of Tyvosh and Porvos on the other. However, this conflict did not
amount to an international armed conflict, because it was not between states.

17 The most widely accepted definition of international armed conflict is found in Common
Article 2 of the Geneva Conventions,68 which speaks of armed conflict which may arise
between two or more states.69 Thus, the fundamental characteristic distinguishing
international armed conflict from non-international armed conflict is that it must occur
between two or more states.70 The hostilities between OSTY and the forces of Tyvosh and
Porvos do not amount to an international armed conflict because OSTY is not a State. OSTY
has been variously characterized as a band of pirates and criminals, a terrorist organisation,
and a paramilitary group.71 Thus, at best, it constitutes a non-state armed group.

18 In the present case, OSTY forces indigenous to Tyvosh have been engaged in a siege of
Quirth, the capital city of Tyvosh.72 This conflict squarely meets the criteria of a non-

                                                                                                                         
67
¶ 9, The Problem.

68
The Prosecutor v. Thomas Lubanga, Case No. ICC-01/04-01/06, Decision on confirmation of charges of Pre-
Trial Chamber I on January 29, 2007, ¶207; Knut Dormann, War Crimes under the Rome Statute of the
International Criminal Court, with Special Focus on the Negotiations on the Elements of Crimes, 7 MAX
PLANCK YEARBOOK OF UNITED NATIONS LAW, 341, 358 (2003).
69
Art. 2, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, Geneva, August 12, 1949.
70
Tamas Hoffmann, Squaring the Circle? – International Humanitarian Law and Transnational Armed
Conflicts, HAGUE ACADEMY OF INTERNATIONAL LAW, 5 (2010); ICRC Report on International Humanitarian
Law and the challenges of contemporary armed conflicts, 31IC/11/5.1.2, 8 (2011); ICRC, Commentary on the
Geneva Conventions of 12 August 1949, Volume I, 32 (1952); The Prosecutor v. Jean-Pierre Bemba Gombo,
Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on June 15, 2009,
¶ 223; International Law Association, Use of Force Committee, Final Report on the Meaning of Armed Conflict
in International Law, 9 (2010).
71
¶ 3, The Problem.

72
¶¶ 4; 5, The Problem.

 
33  
 
 international armed conflict, since it is a conflict between a non-state armed group and the
authorities of the state.73 Further, the assistance provided to Tyvosh by the state of Porvos
does not affect the nature of this conflict. When a State intervenes in a non-international
armed conflict in order to assist another state against a non-state actor, it does not change the
non-international nature of the conflict. A non-international armed conflict is only
internationalized when another state intervenes in support of the non-state actor.74

19 The prosecution may argue that the conflict was effectively between two or more states
because OSTY’s actions are attributable to the State of Yunkel. However, OSTY’s acts
cannot be attributed to Yunkel, because Yunkel exercised no control over it. The Appeals
Chamber in Tadic laid down the test for determining when paramilitary groups in an internal
armed conflict can be said to be acting on behalf of another state.75 According to this test, the
state should have a role in organising, coordinating or planning the military actions of the
paramilitary group.76 Thus, the acts of OSTY can be attributed to Yunkel only if it exercises
overall control over OSTY.77 In the present case, the State of Yunkel has provided no
assistance to and exercises no control over OSTY. Lance Raider, a private individual, makes
all major political and military decisions for OSTY.78 Attacks have been carried out by OSTY
with vessels from Raider’s fleet,79 and with weapons purchased using his inheritance.80 Thus,
actions of OSTY can not be attributed to Yunkel in the present case.

                                                                                                                         
73
The Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY), Decision on the defence motion for interlocutory
appeal on jurisdiction on October 2, 1995, ¶ 70.
74
The Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07, Decision on the confirmation of charges on
September 30, 2008, ¶ 239-240; The Prosecutor v. Thomas Lubanga, Case No. ICC-01/04-01/06, Decision on
confirmation of charges of Pre-Trial Chamber I on January 29, 2007, ¶ 209; James G. Stewart, Towards a single
definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict, 85
(850) INTERNATIONAL COMMITTEE OF THE RED CROSS , 313, 315 (2003).
75
James G. Stewart, Towards a single definition of armed conflict in international humanitarian law: A critique
of internationalized armed conflict, 85 (850) INTERNATIONAL COMMITTEE OF THE RED CROSS, 313, 323 (2003).
76
The Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY), Judgment on July 15, 1999, ¶137.

77
The Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY), Judgment on July 15, 1999, ¶131.

78
¶ 3, The Problem.

79
¶ 6, The Problem.

80
¶ 4, The Problem.

 
34  
 
20 Further, the prosecution may not rely on lower thresholds for attributing acts of non-state
actors to states if such thresholds are drawn from the laws on state responsibility. This is
because attribution to determine whether a conflict is international is distinct from attribution
to determine whether a state is internationally responsible for the acts of a non-state entity.81
The test of overall control laid down in the Tadic decision is specifically applicable to the
question of determining whether a conflict is international or non-international.82 It has been
consistently followed in decisions of the ICTY as well as the ICC for determining the nature
of conflict.83 Thus, it is the appropriate test to apply in the present case.

c. The contamination did not result in widespread, long-term and severe damage

21 Art. 8(2)(b)(iv) of the Rome Statute criminalizes attacks that cause “widespread, long-term
and severe damage” to the natural environment. These terms should be interpreted in
accordance with the Additional Protocol I standard [1], and the contamination of Mirror Lake
fails to meet this standard [2].

1. This standard should be interpreted in accordance with Additional Protocol I

22 Art. 8(2)(b)(iv) corresponds to Art. 55 of Additional Protocol I, which creates a duty to

protect the natural environment against widespread, long-term and severe damage in
warfare.84 It is well-established that these criteria under the Protocol set a very high threshold
that applies only to exceptionally catastrophic events.85 The prosecutor may argue that Art.
8(2)(b)(iv) should be interpreted in consonance with the lower threshold under the
Environmental Modification Convention (“ENMOD Convention”).86 Under the ENMOD
                                                                                                                         
81
Bosnia and Herzegovina v. Serbia and Montenegro, Case concerning application of the convention on the
prevention and punishment of the crime of genocide, International Court of Justice, February 26, 2007, ¶ 404.
82
The Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY), Judgment on July 15, 1999, ¶¶ 137, 145.

83
The Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on confirmation of charges of Pre-Trial
Chamber I on January 29, 2007, ¶ 210-211; The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-
01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on June 15, 2009, Pre-Trial
Chamber II, ¶ 229; The Prosecutor v. Blaskic, Case No. IT-95-14-T (ICTY), Judgment on March 3, 2000, ¶ 100;
The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgment on March 24, 2000, ¶ 134.
84
Art. 51(2), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977.
85
ICRC Opinion Paper, How is the Term “Armed Conflict” Defined in International Humanitarian Law?, 17,
(March 2008).
86
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques, United Nations (May 18, 1977) (“ENMOD Convention”).

 
35  
 
 Convention, “widespread” encompasses an area of several hundred kilometers, “long-lasting”
refers to a period of months, and “severe” means serious disruption to human life.87 These
terms have much wider application under the ENMOD Convention than under Additional
Protocol I.88

23 The interpretation of the standard under the Rome Statute should be in accordance with
Additional Protocol I because: First, the drafting history of Art. 8(2)(b)(iv) shows that it was
specifically designed to implement Art. 55 of Additional Protocol I;89 Second, the wording of
Art. 8(2)(b)(iv) mirrors that of the Additional Protocol by laying down a conjunctive
requirement, while the ENMOD Convention lays down a disjunctive requirement;90 Third,
Additional Protocol I, like Art. 8(2)(b), applies only to armed conflict, whereas the ENMOD
Convention deals with environmental modification techniques for any hostile purposes;91 and
Fourth, the interpretation of “widespread, long-lasting, and severe” under the ENMOD
Convention was intended exclusively for that Convention and was not intended to prejudice
the interpretation of similar terms used in other agreements.92 Thus, the standard under Art.
8(2)(b)(iv) should be interpreted in accordance with the Additional Protocol rather than the
ENMOD Convention.

                                                                                                                         
87
Report of the Conference of the Committee on Disarmament, Vol. I, U.N. Doc. A/31/27, 91 (1976).

88
Andronico O. Adede, Protection of the Environment in Times of Armed Conflict: Reflections on the existing
and Future Treaty Law, 1 (1) ANNUAL SURVEY OF INTERNATIONAL & COMPARATIVE LAW, 161, 166 (1994).
89
Silja Vöneky et al., Environment, Protection in Armed Conflict in MAX PLANCK ENCYCLOPEDIA ON PUUBLIC
INTERNATIONAL LAW (2011); Diedre Willmott, Removing The Distinction Between International And Non-
International Armed Conflict In The Rome Statute Of The International Criminal Court, 5(1) MELBOURNE
JOURNAL OF INTERNATIONAL LAW, 197, 210 (2004); Mark A Drumbl, International Human Rights, International
Humanitarian Law, and Environmental Security: Can the International Criminal Court Bridge the Gaps, 6,
ILSA J. INT'L & COMP. LAW, 305, 316 (2000).
90
ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS, Art. 35, ¶ 2135
(1987); Arie Afriansyah, Environmental Protection and State Responsibility in International Humanitarian Law,
7, INDONESIAN J. INT'L LAW, 242, 252 (2010).
91
Andronico O. Adede, Protection of the Environment in Times of Armed Conflict: Reflections on the existing
and Future Treaty Law, 1 (1) ANNUAL SURVEY OF INTERNATIONAL & COMPARATIVE LAW, 166 (1994).
92
Report of the Conference of the Committee on Disarmament, Vol. I, U.N. Doc. A/31/27, 91 (1976); ICRC,
COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS, Art. 35, ¶ 1455 (1987).

 
36  
 
 2. The contamination of Mirror Lake fails to meet this standard

24 The protections under Protocol I are primarily aimed at protecting human beings from the
effects of environmental destruction.93 In the specific context of fresh water sources, it has
been observed that the requirements of “widespread, long-term, and severe” environmental
damage are linked to the protection of the civilian population.94 Thus, the magnitude of the
damage to the environment in the present case may be ascertained with reference to the effect
it had on human life.

25 The contamination of Mirror Lake by OSTY did not amount to “long-term” damage, since it
only lasted three weeks.95 It is well settled that “long-term” damage under Protocol I occurs
over a period of decades,96 not weeks. Further, the “severity” of the attack should be
measured in terms of the prejudicial effect on human health or survival.97 This includes
serious effects such as congenital defects or degenerations, and does not include short-term
effects on health.98 The contamination of the lake with Salmonella does not amount to severe
damage, since it did not result in such serious effects on human health. Most persons affected
by Salmonella recover without treatment, within a few days.99 Most of the victims in the

                                                                                                                         
93
Michael Schmitt, Humanitarian Law and the Environment, 28 DENVER JOURNAL OF INTERNATIONAL LAW
AND POLICY, 265, 277 (2000); Andronico O. Adede, Protection of the Environment in Times of Armed Conflict:
Reflections on the existing and Future Treaty Law, 1 (1) ANNUAL SURVEY OF INTERNATIONAL & COMPARATIVE
LAW, 166 (1994); Jessica Lawrence et al., The First Ecocentric Environmental War Crime: The Limits of Article
8(2)(b)(iv) of the Rome Statute, 20 GEO INTERNATIONAL ENVIRONMENTAL LAW REVIEW, 61, 66-67 (2008);
Julian Wyatt, Law-making at the intersection of international environmental, humanitarian and criminal law:
the issue of damage to the environment in international armed conflict, 92 (879) INTERNATIONAL REVIEW OF
RED CROSS, 593, 625 (2010); Ashley Barnes and Christopher Waters, The Arctic Environment and International
Humanitarian Law, 49 Y.B. INT'L LAW, 213, 219 (2011).
94
Nikolai Jorgensen, The Protection of Freshwater in Armed Conflict, 3(2) JOURNAL OF INTERNATIONAL LAW
AND INTERNATIONAL RELATIONS 57, 75 (2007).
95
¶ 9, The Problem.

96
Report submitted by the ICRC to the 48th session of the United Nations General Assembly, U.N. Doc
A/48/269, ¶34 (1993); ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS,
Art. 35, ¶¶ 1452-1455 (1987); Karen Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD,
94 (2004).
97
Karen Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 96 (2004).

98
ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS, Art. 35, ¶ 2135
(1987).
99
National Health Service UK, Salmonella Infection, available at: http://www.nhs.uk/Conditions/salmonella-
infection/Pages/Introduction.aspx/

 
37  
 
 present case were among the elderly and young children,100 due to their lower immunity.101
led to an outbreak of Salmonella-caused illness in the city of Dothran alone. Finally, the
contamination of Lake Mirror does not meet the high standard of “widespread” damage, since
it only had effects on human health in one city. “Widespread” damage has been interpreted to
mean a territorial extent close to 20,000 square kilometers.102 Thus, the contamination of
Mirror Lake did not result in widespread, long-term, and severe damage as per Art. 8(2)(b)(iv)
of the Rome Statute.

d. The injury was not excessive in relation to the concrete military advantage anticipated

26 Art. 8(2)(b)(iv) criminalizes damage caused to the environment which would be clearly
excessive in relation to the concrete and direct overall military advantage anticipated. This
lays down a test of proportionality between damage to the environment and the expected
military advantage.103 The attack in the present case does not violate this requirement of
proportionality because the overall military advantage anticipated was concrete and direct [1].
Further, the attack was not clearly excessive in relation to the advantage anticipated [2].

1. The overall military advantage anticipated was concrete and direct

27 A military advantage generally consists in weakening the enemy’s armed forces,104 and may
involve the denial of humanitarian access to opposing forces.105 An “overall” military
advantage may be one that is in a different geographical location from the environmental
damage.106 In the present case, the military advantage sought by OSTY was the immediate

                                                                                                                         
100
¶ 9, The Problem.

101
National Health Service UK, Salmonella Infection, available at: http://www.nhs.uk/Conditions/salmonella-
infection/Pages/Introduction.aspx/
102
Karen Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 92 (2004).

103
ICRC Report on International Humanitarian Law and The Challenges of Contemporary Armed Conflicts,
03/IC/09, 12 (2003).
104
ICRC Report on International Humanitarian Law and The Challenges of Contemporary Armed Conflicts,
03/IC/09, 12 (2003).
105
ICRC Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts,
31IC/11/5.1.2, 23 (2011).
106
Footnote 36, Elements of Crimes, 19; ICRC Statement of 8 July 1998 Relating to the Bureau Discussion
Paper in Document A/CONF.183/C.1 /L.53, UN Doc. A/CONF.183/C.1/L.53; Jessica Lawrence et al., The First
Ecocentric Environmental War Crime: The Limits of Article 8(2)(b)(iv) of the Rome Statute, 20 GEO
INTERNATIONAL ENVIRONMENTAL LAW REVIEW, 61, 77-78 (2008).

 
38  
 
 halting of aid shipments from Porvos to Quirth.107 The advantage sought was “concrete and
direct” because it was a clearly defined, short-term end.108 It is not necessary that this
advantage was a reasonably foreseeable advantage, but merely that it was honestly anticipated
by OSTY.109 Thus, it need not be shown that the halting of the aid shipments was a necessary
result of the contamination of the lake. Art. 8(2)(b)(iv) allows a broad margin of judgment to
combatants in predicting military advantages.110 In any case, the immediate halting of the aid
shipments in response to the contamination shows that this military advantage was, in fact, a
concrete and direct result of the attack.111

2. The attack was not clearly excessive in relation to the anticipated advantage

28 Whether the attack was clearly excessive in relation to the perceived military advantage can
be determined by comparing the losses inflicted by the attack to the losses prevented by the
achievement of the military advantage anticipated.112 Regard must be had to the nature of the
contaminant employed in the attack. Salmonella has been employed as a contaminant in
attacks when the specific intent was to avoid causing deaths.113 It can be effectively removed
by ordinary treatment of water during distribution or boiling of water in households.114 OSTY
even publicly announced that it would contaminate the lake,115 giving Porvosian authorities an

                                                                                                                         
107
¶ 9, The Problem.

108
ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS, Art. 57, ¶ 2208
(1987).
109
Jessica Lawrence et al., The First Ecocentric Environmental War Crime: The Limits of Article 8(2)(b)(iv) of
the Rome Statute, 20 GEO INTERNATIONAL ENVIRONMENTAL LAW REVIEW, 61, 81 (2008).
110
K. Ambos, TREATISE ON INTERNATIONAL CRIMINAL LAW, VOL. II, 670 (2014); Mark A Drumbl, International
Human Rights, International Humanitarian Law, and Environmental Security: Can the International Criminal
Court Bridge the Gaps, 6, ILSA J. INT'L & COMP. LAW, 305, 321 (2000).
111
¶ 9, The Problem.

112
Haque, Adil Ahmad, Law and Morality at War, 8(1) CRIMINAL LAW AND PHILOSOPHY, 79, 97 (2014).

113
W. Seth Carus, BIOTERRORISM AND BIOCRIMES: THE ILLICIT USE OF BIOLOGICAL AGENTS SINCE 1900, 54
(2002).
114
Török, Thomas J., et al., A large community outbreak of salmonellosis caused by intentional contamination of
restaurant salad bars, 278(5) JAMA 389, 393 (1997); WHO Guidelines for Drinking-water Quality:
Recommendations, WORLD HEALTH ORGANIZATION, 1, 240 (2008); Frederick J. Angulo et al, A Community
Waterborne Outbreak of Salmonellosis and the Effectiveness of a Boil Water Order, 87(4) AMERICAN JOURNAL
OF PUBLIC HEALTH, 580, 584 (1997).

115
¶ 9, The Problem.

 
39  
 
 opportunity to take precautions. In comparison to this attack, the military advantage
anticipated by OSTY was the halting of aid shipments, which would end the conflict on the
high seas. Atleast 1000 persons have been killed in this conflict.116 Thus, while the
contamination did lead to 50 deaths, the effects of this attack were not disproportionate to the
military advantage anticipated and achieved by OSTY. Resultantly, the contamination of the
lake cannot be said to be clearly excessive in relation to the anticipated advantage.  

III. Judge Hasty should be disqualified from the present case

29 One of the judges of the Pre-Trial Chamber, Judge Rosemelle Hasty, should be disqualified
from the present case on grounds of lack of impartiality. J. Hasty has authored a book in
which she has expressed the opinion “recruitment and use of juvenile pirates could be tried as
a crime against humanity by the International Criminal Court.”117 This pertains directly to
one of the issues of jurisdiction in the present case.118 J. Hasty should be disqualified because
Yunkel has locus standi to request J.Hasty’s disqualification [a], and the standard required for
disqualification has been met [b].

a. Yunkel has locus standi to request disqualification

30 The prosecution may argue that the Government counsel does not have locus standi to request
the disqualification of the judge in the present case. While Art. 41(2)(b) of the Statute
provides that the Prosecutor or any person being investigated may request the disqualification
of a judge,119 this should not be seen as an exclusive right. The Rules of Procedure and
Evidence place an absolute duty on judges to request to be excused in case any of the grounds
for disqualification exist, irrespective of a request for disqualification.120 Thus, restricting the
right to request disqualification to certain parties would lead to an inconsistency between the
Statute and the Rules.121 Further, denying the right to request the disqualification of a judge to

                                                                                                                         
116
¶ 8, The Problem.

117
¶ 12, The Problem.
118
¶ a, The Problem.
119
Art. 41(2)(b), Rome Statute.
120
Rule 35, Rules of Procedure and Evidence, International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.1
(2000) (“Rules of Procedure and Evidence”).
121
W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 573 (2010)

 
40  
 
 Yunkel violate the principles of natural justice.122 As the investigation sought by the
prosecutor would cover acts committed on its territory,123 Yunkel is a party directly interested
in the case at hand. Thus, Yunkel has locus standi to request the disqualification of J. Hasty.

b. The standard required for disqualification has been met

31 As per Arts. 40 and 41 of the Rome Statute, a judge must be independent in the performance
of her functions and must not participate in any case in which her impartiality “might
reasonably be doubted” on any ground.124 To rebut the presumption of impartiality, it is
sufficient to prove that a fully informed, reasonable observer would apprehend bias.125 Yunkel
submits that the requisite standard has been met since J.Hasty’s opinion explicitly pertains to
an issue in the case at hand. There exists a genuine link between J. Hasty’s opinion and the
case at hand, as both are concerned with the same situation and involve similar actors.126 The
Rules of Procedure and Evidence do not require the conclusiveness of such opinion to be
established in order for impartiality of a judge to be adversely affected.127 The impugned
opinion evidently demonstrates that Judge Hasty “could be expected to have formed an
opinion”128 on the recruitment and use of child pirates, which is sufficient to require
disqualification. In Issa Hassan Sesay,129 it was held that similar published comments made
by a judge regarding the commission of certain crimes would provide a reasonable
apprehension of bias in cases concerning similar facts. Hence, J. Hasty must be disqualified
under Art. 41 of the Rome Statute and Rule 34 (c) of the Rules of Procedure and Evidence.

                                                                                                                         
122
The Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgment on July 5, 2001, ¶ 27; The Prosecutor v.
Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/13, Defence request for leave to appeal on November 26,
2014, ¶ 13.
123
¶¶ 2; 7, The Problem.
124
Arts. 40; 41, Rome Statute.
125
The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/13, Decision on Disqualification of
Judge Cuno Tarfusser on June 20, 2014, ¶17 ; The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-
01/06, Decision on Disqualification of Judge Sang-Hyun Song on June 29, 2015, ¶ 18.
126
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 on April 2, 2012, ¶9-10.
127
Rule 34(1)(c), Rules of Procedure and Evidence.
128
Rule 34, Rules of Procedure and Evidence.
129
The Prosecutor v. Issa Hassan Sesay, Case No. SCSL-04-15-AR15, Decision on Disqualification of Justice
Robertson on March 2, 2009, Special Court for Sierra Leone, ¶ 15.

 
41  
 
 CONCLUDING SUBMISSIONS

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

I. The recruitment and use of juvenile pirates by OSTY in attacks against the Porvos aid
vessels cannot be tried as a crime against humanity within the jurisdiction of the
International Criminal Court under Article 7 of the ICC Statute;

II. OSTY’s cross-border contamination of Porvos’s water supply cannot be tried as a war
crime under Article 8(2)(b)(iv) of the ICC Statute;

III. Judge Hasty should be disqualified from the present case;

On Behalf of the Government of Yunkel

Government Counsel

 
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