1st UC-KAS International Law

Moot Court Competition

2018

COUNSEL FOR APPLICANT ABRAVANEL

in

(ABRAVANEL v. RATHANKA)

Team No: 1811

Total Word Count: 6300

TABLE OF CONTENTS

COVER PAGE…………………………………………………………………………..…… 1

TABLE OF CONTENTS……………………………………………………………..……… 2

LIST OF ABBREVIATIONS………………………………………………………..………. 3

INDEX OF AUTHORITIES…………………………………………………………..……..4-6

STATEMENT OF JURISDICTION…………………………………………………………..7

QUESTIONS PRESENTED…………………………………………………………………... 8

STATEMENT OF FACTS…………………………………………………………………..9-11

SUMMARY OF PLEADINGS………………………………………………………………. 12

MAIN PLEADING…………………………………………………………………………13-27

CONCLUSION AND/OR PRAYER FOR RELIEF …………………………………………28

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LIST OF ABBREVIATIONS

Art. Article
CBD Convention of Biodiversity
Diss. Op. Dissenting Opinion
ECtHR European Court of Human Rights
GA General Assembly
GA Res General Assembly Resolution
ICJ International Court of Justice
ILC International Law Commission
No. Number
p. page
para. paragraph
PICJ Permanent International Court of Justice
SC Security Council
TMACM Treaty on Mutual Assistance in Criminal Matters
UN United Nations
v. versus
VLCT Vienna Convention on the Law of Treaties

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(C) INDEX OF AUTHORITIES

1. Books
Rome Statute of the International Criminal Court. (2010). A/CONF.183/9 Rome Statute of the
ICC. Kampala, Uganda: International Criminal Court.

ICC: Understanding the International Criminal Court. (2010). Understanding the International
Criminal Court. Hague: International Criminal Court.

Geneva Convention Relative to the Protection of Civilian Persons in Times of War. (1949). THE
GENEVA CONVENTION OF 1949. Hague: International Committee of the Red Cross.

Relationship Agreement between the ICC and the UN. (2004). The International Criminal Court
and the United Nations. New York: UN-ICC.

3. Awards

a.) Press Release of 15 February 2005, Declaration under Article 12(3) of the Rome Statute, 18
April 2003 and Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Decision Pursuant to
Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the
Republic of Côte d'Ivoire, ICC-02/11-14, 3 October 2011, para. 10)

b) Letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in
Uganda to Pre-Trial Chamber II, ICC-02/04-1, 5 July 2004)

c) Letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in
the Democratic epublic of Congo to Pre-Trial Chamber I, ICC-01/04-1, 5 July 2004)

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d) Calder v. Jones, 465 U.S. 783, 790 [1984]

e) US v. Aleksey Vladimirovic Ivanov

f) Corfu Channel (U.K. vs Alb.), 1949 I.C.J 4 (APRIL 9)

g) Gabčĭkovo-Nagymaros Project (Hungary v. Slovakia) 1997 I.C.J

h) Trail Smelter Arbitration, U.S.-Canada, Trail Smelter Arbitral Tribunal, Aug. 16, 1938

4. UN DOCUMENTS

Rome Statute of the International Criminal Court. (2010). A/CONF.183/9 Rome Statute of the
ICC. Kampala, Uganda: International Criminal Court.

ICC: Understanding the International Criminal Court. (2010). Understanding the International
Criminal Court. Hague: International Criminal Court.

Geneva Convention Relative to the Protection of Civilian Persons in Times of War. (1949). THE
GENEVA CONVENTION OF 1949. Hague: International Committee of the Red Cross.

Relationship Agreement between the ICC and the UN. (2004). The International Criminal Court
and the United Nations. New York: UN-ICC.

UN: Charter of the United Nations. (1945). Charter of the United Nations. San Francisco: UN.
(Carsten Stahn et al, p. 4.–2., & Hans-Peter Kaul, p. 6.
Velasco, C. C. (2015, June 24). Cybercrime jurisdiction: past, present and future. DOI
10.1007/s12027-015-0379-y , p. 19.

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5. MISCELLANEOUS

For an overview on approaches to cybercrime jurisdiction and the principles and factors
determining positive and negative claims on jurisdiction in different countries, see: Brenner [2],
available in the Social Science Research Network

(EU Council Framework Decision 2002/475/JAI of 13 June 2002 on combating terrorism)

(EU Directive 2013/40/EU of 12 August 2013 on attacks against information systems

and replacing Council Framework Decision 2005/222/JHA.)

Europe Convention against Cybercrime (hereinafter “Budapest Convention”) June 2001.12

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 (D) STATEMENT OF JURISDICTION

On 05 June 2018, the Federal State of Abravanel and the Republic of Rathanka submitted
the following dispute to the Court, in accordance with Article 40 of the Statute of the
International Court of Justice1. The Registrar of the Court addressed notification to the parties on
15 July 2018. See Special Agreement Between the Federal State of Abravanel and the Republic
of Rathanka for Submission to the International Court of Justice of Differences Between Them
Concerning Questions Relating To War Crimes & The Explosion of Coal Mines.

1 Statute of the International Court of Justice, Art. 40, T.S. No. 993(1945).

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 (E) QUESTIONS PRESENTED

1. WHETHER THE FEDERAL STATES OF ABRAVANEL VIOLATED THE TARA,

THE RIO DECLARATION OR THE STOCKHOLM DECLARATION.

2. WHETHER THE REPUBLIC OF RATHANKA VIOLATED THE GENEVA

CONVENTIONS AND THE ICCPR.

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 (F) STATEMENT OF FACTS

The Federal States of Abravanel (“Abravanel”) and the Republic of Rathanka

(“Rathanka”) are both states located in the continent of Karacan and were separated by Appala
Mountain Range and Mishka Forest (“Appala”). (R. ¶ 1).

The Territorial Agreement between Rathanka and Abravanel (TARA) is a boundary

treaty between the two states covering the Greater Appala Area in which Abravanel and
Rathanka are both parties thereby. (R. ¶ 12). Appala is home to a minority group roughly
200,000 called the Abreans. (R. ¶ 15).

In 2007, private researchers discovered huge deposits of coal reserves in the Abravanel
side of Appala. However, due to a lack of financial and technical capability, the government of
Abravanel did nothing to commence its operation. (R. ¶ 19). In 2012, Ali Ramadi was chosen as
the new Prime Minister of Abravanel. Since they lack the financial and technological capacity,
the government of Abravanel initiated negotiations with the government of Rathanka regarding
the possibility of joint exploration and recovery of the coal reserves in the Abravanel side of
Appala. (R. ¶ 20).

After a series of talks the two states agreed to a set of amendments to the TARA called
the Agreement Governing Coal Exploration and Recovery in the Greater Appala Area or the
“Coal Protocol” which both states accepted the amendments and ratified. (R. ¶ 21). Pursuant to
the terms of the Coal Protocol, Rathanka agreed to provide Abravanel with technological and
administrative assistance to commence the joint exploration and recovery operations of the coal
reserves in Appala. (R. ¶. 21). Abravanel, for its part, agreed to grant Rathanka a thirty percent
(30%) share of any resources recovered from the mining operation. (R. ¶ 21).

In 2015, Abravanel established a coal mine and processing refinery registered under the
company name Meightois Mining Co. (MMC), a company incorporated under Abravanel law
and owned and operated by the Abravanel government. (R. ¶ 22). In December 2016, roughly a
year after the coal extraction commenced, Abravanel Green Movement (AGM), produced “The

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Coal Me Maybe”. (R. ¶ 24). The documentary showed that the mining operations greatly
damaged the area which led to deforestation and soil erosion in which several hectares of the
Mishka Forest and of other smaller forests within the mountain range were destroyed. (R. ¶ 25).

Moreover, it was found that the sewage system contaminated the rivers and it could not
handle the capacity of the mine and refinery. The documentary also showed that blasting
operations in the mine and industrial processing in the refinery caused severe air pollution
causing the death of the residents and animals in the Greater Appala Area. (R. ¶ 27).

The Government of Abravanel held a press conference in response to the AGM

documentary and the UNEP report stating that “The Meightois mining operation is breakthrough
project for the economic resurgence of Abravanel. People’s Movement of Rathanka (PMOR)
staged a protest to call for the closure of the mine and refinery and they claimed that operation of
the mine and refinery violated the Appala Mountain Range Treaty and called for the Government
of Rathanka to act on the matter. (R. ¶ 29). On August 20, 2017, President Vidic appeared in a
televised speech before the international media and cited the rights granted under Article 20 of
the TARA, that the Government of Rathanka is suspending all support provided to Abravanel
under the Coal Protocol and is withdrawing from further participation in the MMC. (R. ¶ 34).

On September 11, 2017, three hundred Abrean fighters attacked MMC and
indiscriminately fired unguided artillery at the MMC mine and refinery of which fifty-five (55)
Abravan workers died and at least two hundred (200) were injured. (R. ¶ 39). The Abravan
military responded by sending several battalions of troops to Appala. (R. ¶ 40). Failing to resolve
the disputes, the parties agreed to submit the matter to the International Court of Justice. (R. ¶
44).

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 (G) SUMMARY OF PLEADINGS

Abravanel has not violated the Territorial Agreement between Rathanka and Abravanel,
the Rio Declaration nor the Stockholm Declaration because Abravanel has not caused
transboundary harm or damage against neighboring states, particularly Rathanka. Being a shared
conservation measure, the environmental repercussions of the mining corporation is a joint
responsibility of the contracting parties and not the sole duty of either of them2.

Rathanka is liable for the attack of MMC under the doctrine of attributability and
command responsibility as Rathanka had overall control over the actions of Abrian Liberation
Movement and their war leader Baldon Estenzic. Rathanka also violated Article 9(1) and 12(1)
of the ICCPR for they unlawfully detained Abravan citizens during the duration of the armed
conflict.

2 Article 8 of the Convention of Biodiversity (CBD), available at

https://www.cbd.int/convention/articles/default.shtml?a=cbd-08

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 (A) MAIN PLEADING

I. THE FEDERAL STATES OF ABRAVANEL DID NOT VIOLATE THE

TARA, THE RIO DECLARATION OR THE STOCKHOLM DECLARATION:

A. The Federal States of Abravanel did not violate Sections 8 (a) and 8 (b) of the TARA.

Section 8 of TARA declaration provides that "the State of origin shall take all
appropriate measures to prevent significant transboundary harm or at any event minimize the
risk thereof and that the State of origin shall take necessary legislative, administrative or other
action to ensure the prevention of significant transboundary harm or at any event to minimize
the risk thereof". This provision of the TARA declaration presupposes that there is presence of
transboundary harm and that the state of origin provides measures to prevent or at least mitigate
harm thereof. However, it is our submission that there is no transboundary harm caused by
MMC to Rathanka and the said provision has not been violated.

Transboundary harm arises from wide range activities which are carried out in one
country but inflict adverse effects in the territory of another. Transboundary harm is often
referred to as border crossing damage via land, water, or air in dyadic state relations. In
international law, such damage is often referred to as international environmental damage or
international environmental harm3.

Although the Meightois Mining and Company is situated in Apalla area within the
boundary of Abravanel and under their administration, it is duly established that both Rathanka
and Abrevanel have shared revenue and responsibility in this joint exploration. Following this
argument, although MMC is within the territory of Abravanel, it cannot deny the fact that
Rathanka is partly an owner of this mining company. Since there is a shared ownership of MMC
between both states, Rathanka’s territory and responsibility technically includes that of the area

3 Xue Hanqin, Transboundary Damage in International Law. (Cambridge U. Press 2003)

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where MMC is situated. With this, it cannot be said that one country has inflicted adverse effects
in the territory of another because the country or state complaining in this case, which is
Rathanka, is also one of the party who caused such harm to their territory4.

To bolster the claim that there is no transboundary harm or damage, the Applicant lays
down the four elements of transboundary harm5. The following are the elements: (1) physical
relationship between the activity and the damage (2) requirement of human causality (3)
threshold criterion and (4) transboundary movement of harmful effects. In this case, the first
element is wanting.

The physical relationship between the activity and the damage should show that the
activities in one state directly give rise to harm in a neighboring state or states. In this case, the
activity complained of which is the operation Meightois Mining Company, is also an activity of
the State of Rathanka being a part owner of the said company as well. Absence the said first
element, there is clearly no transboundary harm.

B. The Federal States of Abravanel did not violate Principle 2 of the Rio Declaration
and Principle 21 of the Stockholm Declaration prohibiting the conduct of activities
that cause transboundary harm.

Abravanel is within its rights to exercise its permanent sovereignty over its natural
resources which is found in a UN resolution from 1962:

“The right of peoples and nations to permanent sovereignty over their natural wealth and
re-sources must be exercised in the interest of their national development and of the
wellbeing of the people of the State concerned. The exploration, development and
disposition of such resources, as well as the import of the foreign capital required for

4 Alan Tan, Forest Fires in Indonesia: State Responsibility and International Liability, 48(4) I.C.L.Q. 826, 855

(1999).

5 Id. at 11

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 these purposes, should be in conformity with the rules and conditions which the peoples
and nations freely consider to be necessary or desirable with regard to the authorization,
restriction or prohibition of such activities6”.

Abravanel claims that there are no valid implications that results from its mining
activities to comply with the criteria set forth to consider its action as transboundary harm. The
report provided for by UNEP shows that deforestation only affects the 300-sq km area on the
eastern side of Mishka Forest which is within Abravanel Territory and does not include any part
of the Rathankan area. Therefore, the harm in question does not exceed a certain level of security
to call for legal action.

Abravanel also submits that the harm in question is insignificant. It follows the precise
threshold approach that implies that the threshold of harm must be determined by balancing the
socio-economic utility of an activity against its detrimental effects on the environment; thus, the
tolerable level of harm becomes higher as the economic and developmental advantages of the
activity increase7. The result of the risk-originating activity is a breakthrough project for the
economic resurgence of Abravanel and that it is essential to its economic survival as a
developing state.

There is also an existing shared obligations and responsibility between Abravanel and
Rathanka when they pursue joint goals in a cooperative manner in the establishment of the
Meightois Mining Co. where Rathanka owned 30% share of any resources recovered from the
mining operations. This does not excuse Rathanka to simply reap the harvest and wash their
hands when liability haunts them for the harm the mining operations produces.8

As both Abravanel and Rathanka are Parties to the Convention on Biological Diversity
(CBD), they are bound to Article 14 on Impact Assessment and Minimizing Adverse Impacts,
Section (e), which provides that both parties must promote national arrangements for

6 The 1962 General Assembly Resolution on the “Permanent Sovereignty over Natural Resources”.
7 Lefeber (1996) pp. 87-89

8
Lefeber, René Transboundary Environmental Interference and the Origin of State Liability, The Hague 1996

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emergency responses to activities or events, whether caused naturally or otherwise, which
present a grave and imminent danger to biological diversity and encourage international
cooperation to supplement such national efforts and, where appropriate and agreed by the States
or regional economic Integration organizations concerned, to establish joint contingency plans.
The same being binding to both parties, thus requiring them to have a national arrangement in
response to an emergency, whether caused naturally or otherwise, which present a grave and
imminent danger to biological diversity. Absence of a prior arrangement in response to such
events does not arbitrarily allow parties to respond extra-judicially.

As no national arrangement or emergency measure was enacted in the event of

emergency from 2015-2017 where there were already thousands of birds and animals living in
the Greater Appala Area were killed. Moreover, data showed that residents of the Greater
Appala Area were exposed to health risks from the activities of the mine and refinery, twenty
percent increase of respiratory diseases and lung cancer among the people living near border.
The contamination of the rivers also deprived local communities of clean drinking water
resulting in high incidents of diarrhea and cholera 9 . Such events being slow but clear
manifestations of events and activities which was naturally caused by the degradation of the
biodiversity, presupposed the need for both parties to enact measures and arrangement in
response to it as per the CBD, but was clearly ignored by Rathanka. The same being the
developed country, had the capability and responsibility to provide research and training to
address biodiversity degradation as per article 12 of the CBD which provides that the
Contracting Parties, taking into account the special needs of developing countries, shall
perform the following:

a) Establish and maintain programs for scientific and technical education and
training in measures for the identification, conservation and sustainable use of
biological diversity and its components and provide support for such education
and training for the specific needs of developing countries;
(b) Promote and encourage research which contributes to the conservation and
sustainable use of biological diversity, particularly in developing countries, inter

9 (Par. 27).

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 alia, in accordance with decisions of the Conference of the Parties taken in
consequence of recommendations of the Subsidiary Body on Scientific, Technical
and Technological Advice: and
(c) In keeping with the provisions of Articles 16, 13 and 20. Promote and
cooperate in the use of scientific advances in biological diversity research in
developing methods for conservation and sustainable use of biological
resources.

Hence, the inevitable fact of environment harm is greatly attributable to Rathanka and not
to the developing contracting party, Abravanel, which was recognized to have special needs.

C. The Federal States of Abravanel did not violate Article 8 of the Convention on
Biological Diversity(CBD)

The intent of the Convention on Biological Diversity (CBD) being the the need to share
costs and benefits between developed and developing countries as well as ways and means to
support innovation by local people necessitates the joint nature of the CBD, specifically, Article
8 conservation measures.

Moreover, Article 8 explicitly declared that each contracting party shall, preserve and
provide for in-situ measures of conservation of ecosystems and natural habitats and the
maintenance and recovery of viable populations of species in their natural surroundings and, in
the case of domesticated or cultivated species, in the surroundings where they have developed
their distinctive properties10. Also, Abravanel cannot be faulted for omission as there was clear
manifestation of intent to pursue the aforementioned measures. As evidenced by the fact that
Abravanel had already sought the help of the United States for the purpose of gaining access to
technology for reforestation and environmental clean-up. This presupposes Abravanel’s clear
intent to take responsibility over the in-situ conservation under Article 8 of his part of the shared
conservation measure of the convention11. In-situ conservation management as defined are

10 (Article 2, CBD).
11 Corfu Channel (U.K. vs Alb.), 1949 I.C.J 4 (APRIL 9)

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approaches which can either be targeted at populations of selected species (species-centered
approaches), or whole ecosystems (ecosystem-based approaches).

Both approaches follow the same purpose: To enable biodiversity to maintain itself
within the context of the ecosystem in which it has been found, ie. to enable a species population
to self-replicate and maintain its potential for continued evolution. This requires conservation of
the components of the natural system (populations, species, communities and biophysical
systems). This could be a natural habitat, or an environment heavily modified by human activity.

Furthermore, the promises made by the Abravanel government

to immediately enact the necessary laws and initiatives to
ensure that any further health and environmental concerns are mitigated, shows it growing
commitment to sustainable development in consonance with Convention on Biological Diversity.

D. The Federal States of Abravanel Principle 3 and Principle 4 of the Rio Declaration
was not violated.

Principle 3 of the Rio Declaration provides that “the right to development must be
fulfilled so as to equitably meet developmental and environmental needs of present and future
generations”. This principle is based on the fact that in every sovereign state, the right to exploit
natural resources is needed in the development and nation building of the society. The right to
development might be perceived as a synthesis of existing human rights, as the right to an
adequate living. Moreover, it is impossible to separate the claim to the right to a healthy and
balanced environment from the claim to the right to ‘sustainable’ development, which implies a
concentration of efforts to combat poverty and underdevelopment.12

Contrary to the claims of Rathanka, Abravanel does adhere to the aforementioned

principle in the pursuit to responsible extraction of natural resources as a major source of

12 http://www.un.org/esa/documents/ecosoc/cn17/1997/ecn171997-8.htm (par. 25)

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economic income of the country13. Abravanel is making counteractive measures by enacting
necessary laws and initiatives to ensure the mitigation of damages caused by the mine and also
sought the help of the Americans for assistance reforestation and environmental clean-up14.

Principle 4 of the same declaration further provides that “in order to achieve sustainable
development, environmental protection shall constitute an integral part of the development
progress and cannot be considered in isolation from it”. Principle 4 reflects the emphasis on
integration, interrelation and interdependence of environment and development, which form the
backbone of sustainable development. It reflects the interdependence of the social, economic,
environmental and human rights aspects of life that define sustainable development. The
principle demonstrates a commitment to moving environmental considerations and objectives
from the periphery of international relations to its economic core.15 Clearly, Abravanel manifests
its intention to achieve its goal to attain balance between economic stability and growing
environmental concerns – a predicament of every developing country faces as it hampers the
growth due to pressing international pressures especially from developed countries.

As provided under the Rio declaration, majority of the principles refer to the co-operation
of nations in dealing with adverse impact on the environment and risk mitigating measures to be
implemented because States have common but differentiated responsibilities16. In the instant
case, the Rathanka did not cooperate in dealing with the scenario and arbitrarily made
undiplomatic statements which worsen the situation and burned bridges between the States. Had
it not for the premature acts of Rathanka, Abravanel has already been complying with its
international obligations to deal with the growing environmental concerns raised by persons of
interest.

Under the no-harm rule, states may not conduct or permit activities within its territory,
without regard to other states or for the protection of global environment. However, for it to be

13 Gabčĭkovo-Nagymaros Project (Hungary v. Slovakia) 1997 I.C.J
14 Record – Abravanel Press Conference in response to the AGM documentary (Par. 29)

15 http://www.un.org/esa/documents/ecosoc/cn17/1997/ecn171997-8.htm (par. 31)

16 Principle 7 of Rio Declaration

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considered as transboundary harm, certain criteria and requirements should must be met. After
all, not all disadvantageous effects caused by environmental factors should fall within the scope
of the obligation not to cause transboundary harm. In the literature, it is argued that four
conditions must necessarily satisfied for harm to qualify as transboundary harm, and thus be
covered by obligation.17 These are the requisites:

• The harm must result from human activity;18

• The harm must be a physical consequence of the human activity;19
• There must be a physical effect crossing national boundaries;20 and
• The harm in question must exceed a certain level of severity that calls for legal
action.21

Certainly, states cannot engage in or permit activities on their territory without regard to
the impact this may have on areas outside their jurisdiction. At the same time, a state cannot
demand that other states abstain from all activities that may have transboundary impacts on the
environment. Accordingly, not all boundary-crossing harm is prohibited under the no-harm rule;
the harm must exceed a certain degree of severity.22

The need for a threshold criterion lies implicit in the balance between the two objectives;
that states have the responsibility not to cause damage outside its territory, but also, by virtue of
their sovereignty, the right to exploit the natural resources within their jurisdiction. In the instant
case, Abravanel did not commit transboundary harm in contemplation to international law since
the harm in question did not exceed to a certain degree of severity. The pollution must be of

17 Schacter (1991) p.463

18 Ibid. p. 464

19 Ibid.

20 Ibid.

21 Ibid.

22 The same considerations are valid with regard to domestic law relating to the rights of neighbors; only

unreasonable interference with a neighbor’s property is prohibited.

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serious consequence, indicating that the court must identify whether or not the pollution in
question is inhibiting an individual or group to live in a healthy and prosperous manner23.

Principle 21 (2) of the Stockholm and Rio Declarations do not formulate explicit
thresholds of harm.24 The second part of the Principle 21 (2) seems, in itself, to require that
“damage to the environment” must be prevented, regardless of the severity of damage. The part
must, however, be viewed in connection with the sovereign rights of states “to exploit their own
resources”, which is expressed in the first principle. Further, there must be a direct proof of
“substantial” or “significant” harm by the Rathanka for the actions of Abravanel to be considered
as Transboundary harm contemplated by law. However, the method of establishing the precise
threshold, i.e. where to draw the line between harm which is significant and harm which is not, is
not clear either. A common school of thought in approaching such problem suggests that the
threshold of harm must be determined by balancing the socio-economic utility of an activity
against its detrimental effects on the environment; thus, the tolerable level of harm becomes
higher as the economic and developmental advantages of the activity increase.25 This method
takes into account economic and technical abilities, and consequently implies that the threshold
of harm varies for developed and developing countries.26 At most, the contention of Rathanka
does not hold water and a mere afterthought.

I. THE REPUBLIC OF RATHANKA VIOLATED THE GENEVA

CONVENTIONS AND THE ICCPR

A. The SIT has jurisdiction over the subject acts constituting the complaint as it
reaches the threshold of confrontation criteria under common Article 3 of the
Geneva Conventions

23 Trail Smelter Arbitration, U.S.-Canada, Trail Smelter Arbitral Tribunal, Aug. 16, 1938,

24 Other examples of international legal instruments that do not have explicit qualification of thresholds in

their text are UNCLOS, Art. 194 (2) and the Outer Space Treaty, Article 7 (1). It is clear that although they do
not specify the threshold, these and other provisions only apply to harm of a certain qualification.

25 Lefeber (1996) pp. 87-89

26 Ibid.

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 1. Estenzic’s attack is within the threshold of confrontation under Common
Article 3 regardless of the duration of the armed conflict.

In order to distinguish an armed conflict, in the meaning of common Article 3, from less
serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the
situation must reach a certain threshold of confrontation. It has been generally accepted that the
lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions
from the definition of NIAC, also applies to common Article 3. Two criteria are usually used in
this regard:27

a. First, the hostilities must reach a minimum level of intensity. This may be the case, for
example, when the hostilities are of a collective character or when the government is
obliged to use military force against the insurgents, instead of mere police forces.28
(“protracted armed violence” test)

b. Second, non-governmental groups involved in the conflict must be considered as

“parties to the conflict”, meaning that they possess organized armed forces. This means
for example that these forces have to be under a certain command structure and have the
capacity to sustain military operations.29 (“organization” test)

In Prosecutor vs Haradinaj, Idriz Balaj and Lahi Brahimak 30, the ICTY made further
clarification with regards the two-fold criteria for non-international armed conflict. The first
modification is redefining “protracted armed violence” criterion to weigh impact rather than

27 ICTY, The Prosecutor v. Dusko Tadic, Judgment, IT-94-1-T, 7 May 1997, para. 561-568; see also ICTY, The

Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 84.

28 For a detailed analysis of this criteria, see ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03- 66-T, 30

November 2005, para. 135-170.

29 See D. Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and

Protocols, RCADI, Vol. 163, 1979-II, p. 147. For a detailed analysis of this criteria, see ICTY, The Prosecutor v.
Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 94-134.

30 iCTY Appeals Chamber, Prosecutor v, Ramush Haradinaj, Idriz Balaj and Lahi Brahimak, Judgment Case No.

IT-04-84-A, 19 July 2010

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length of time. The second is measuring the factual basis for organizational strength of the armed
parties.

Ruling on the “Protracted Armed Violence” Criterion

The Trial Chamber (of the International Criminal Tribunal of the Former Yugoslavia)
concluded that “protracted armed violence” had “been interpreted in practice, including by the
Tadic Trial Chamber itself as referring more to the intensity of the armed violence than to its
duration”. If duration was the key factor, international humanitarian law might not apply to the
early stages of hostilities, irrespective of the degree of armed violence or the number of armed
confrontations. The Trial Chamber’s review of ICTY practice led it to conclude:

Trial Chamber have relied on indicative factors relevant for assessing the “intensity”
criterion, none of which are, in themselves essential to establish that the criterion is satisfied.
These indicative factors include the number, duration and intensity of individual confrontations,
the type of weapons and other military equipment used; the number and caliber of munitions
fired; the number of persons and type of forces partaking in the fighting; the number of
casualties; the extent of material destruction ; and the number of civilians fleeing combat
zones.31

Ruling on the Organization Criterion

Trial Chambers have relied on several indicative factors, none of which are in
themselves, essential to establish whether the “organization” criterion is fulfilled. Such indicative
factors the existence of a command structure and disciplinary rules and mechanisms within the
group; the existence of a headquarters; the facts that the group controls a certain territory; the
ability of the group to gain access to weapons, other military equipment, recruits and military
training; its ability to plan, coordinate and carry out military operations, including troop
movement and logistics; its ability to define a military strategy and use military tactics; and its

31 Prosecutor v. Ramush Haradinaj et al.: The International Tribunal for the Former Yugoslavia and the

Threshhold of Non-International Armed Conflict in International Humanitarian Law. Volume 12 Issue 7, by

Anthony Cullen & Mark Divac Oberg, April 23, 2008. American Society of International Law Insights.

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ability to speak with on voice and negotiate and conclude agreements such as cease-fire or peace
accords.

Importance of Haradinaj et al to determine the threshold of Non-International

Armed Conflict

The significance of the judgment in with regard to determining the threshold of non-
international armed conflict is:

1. It provides a factual example of when internal disturbances transform into non-

international armed conflict;
2. Takes a flexible approach to the attributes required to qualify as an “organized armed
group”;
3. Confirmed the shirt of emphasis from the duration of hostilities to their intensity in
the “protracted armed violence” criterion; and
4. Provided examples of indicators that may be used to classify and analyze two criteria
of armed conflict set forth by the Appeals Chamber in Tadic

The Abrean Liberation Movement’s organizational sophistication and impact of its MMC
attack indicate reaching the threshold as clarified under Tadic and Haradinaj.

Taking into account the jurisprudential logic laid down in Tadic and Haradinaj the Court
can take into consideration various facts and circumstances that demonstrate the factual basis for
declaring the Abrean Liberation Movement and its assault on MMC as within the ambit of
Geneva Conventions and the SIT.

In determining the organizational sophistication of the Abrean Liberation Movement,

many indicative factors can be attributed to show it possesses a command structure with the
capacity to sustain military operations. These include the following: the (1) rapidity of which the
Abrean liberation movement armed and mobilized 300 people in a short span of time, (2)
restraining action until the Rathankan commitment to non-interference, (3) the deployment of

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unguided artillery, and (4) the effective territorial control of the Abreans over a portion of the
Apalla Region.

In determining the severity of the assault, the following are indicators of the attack’s
severity: the destruction of the Rathankan mine and facilities, the death of fifty-five Abravan
workers and injury of at least two-hundred, the Abravan military’s deployment of several
battalions of soldiers to suppress the Abrean Liberation Movement, the subsequent death of 44
Abravan soldiers and injury of at least 30 others and the resulting twenty-five civilians deaths
and thousands forced to flee their homes.

Regardless of the short duration of the conflict (two days), the presence of the indicative
factors, the level of organization, and the intensity of armed violence demonstrates that the attack
against MMC surpasses the minimum level of intensity required under IHL.

I. Rathanka violated Principle 9(1) and 12(1) the International Convention of Civil
and Political Rights(ICCPR)

1. ICCPR Article 9(1) Violation

Rathanka violated Article 9(1) of the ICCPR in confining selected Abravan citizens
in their home, thus violating their right to liberty and freedom from being subjected
to arbitrary arrest or detention.

A. Criteria adopted by the ICCPR Working Group on Arbitrary Detention

to determine whether a deprivation of liberty is arbitrary

The protection of individuals against arbitrary deprivation of freedom in all its

forms, and its mandate extends to deprivation of freedom either before, during or
after the trial (a term of imprisonment imposed following conviction), as well as
deprivation of freedom in the absence of any kind of trial (administrative
detention). 32

32 The Working Group on Arbitrary Detention (UN) (2000) Fact Sheet No. 26

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 The Group has already adopted various such “deliberations”, specifically in the
above-mentioned areas of house arrest and deprivation of freedom for purposes of
rehabilitation through labour; by means of these "deliberations" it defines the
criteria on the basis of which deprivation of freedom linked with such situations
may become arbitrary33

B.Detention must be carried out with respect for the rule of law, which
necessarily includes the right to be reviewed by a court

The right to liberty of person is not absolute. Article 9 recognizes that sometimes
deprivation of liberty is justified, for example, in the enforcement of criminal laws. Paragraph 1
requires that deprivations of liberty must not be arbitrary, and must be carried out with respect
for the rule of law.34

Paragraphs 2 through 5 of article 9 set out specific safeguards for the protection of liberty
and security of person. Some of the provisions of article 9 (part of paragraph 2 and the whole of
paragraph 3) apply only in connection with criminal charges. But the rest, in particular the
important guarantee laid down in paragraph 4, i.e. the right to review by a court of the legality of
detention, applies to all persons deprived of liberty. 35

When private individuals or entities are empowered or authorized by a State party to

exercise powers of arrest or detention, the State party remains responsible for adherence and
ensuring adherence to article 9. It must rigorously limit those powers and must provide strict and
effective control to ensure that those powers are not misused, and do not lead to arbitrary or
unlawful arrest or detention.36


33 Id.

34 General Comment No. 35 CCPR/C/GC/35 (2014) para.
35 Id.

36 See Concluding observations Guatemala (2012) para. 16

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 2. ICCPR Article 12(1) Violation

Rathanka violated Article 12(1) of the ICCPR in confining selected Abravan citizens in
their home, thus violating their right to liberty of movement within a territory of a State. The
contention that such act of detention was necessary to protect national security and public
order and that the confinement was also done to ensure that rights and freedoms of the
persons confined would be protected is contradictory and arbitrary.

A. Sources of legal authority must be explicit in both their authorization of

detention and the particular grounds on which detention is so authorized

As a result of these dual requirements of legality and non-arbitrariness, international

jurisprudence has confirmed that the law permitting detention ‘be clearly defined and that the
law itself be foreseeable in its application.’37 The authors feel that this in particular requires
emphasizing given the increasing tendency of certain States to rely on very vague legal bases and
grounds to justify detention, particularly in the context of national security. 38

B. House arrest: Deprivation of Freedom under Article 12

Deprivation of liberty involves more severe restriction of motion within a narrower space
than mere interference with liberty of movement under article 12.39 Examples of deprivations of
liberty include police custody, “arraigo,”40 remand detention, imprisonment after conviction,
house arrest,41 administrative detention, involuntary hospitalization, etc.

37 Dayra Maria Levoyer Jimenez v Ecuador Report No 66/01 (2001) para 37

38 General Comment No. 35 CCPR/C/GC/35 (2014)
39 González del Río v. Peru (1987) para. 5.1

40 See Concluding observations Mexico (2010) para. 15

41 Gorji-Dinka v. Cameroon (2002) para. 5.4

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 The liberty of movement protected by article 12 of the Covenant and the liberty of
person protected by article 9 complement each other. Detention is a particularly
severe form of restriction of liberty of movement, but in some circumstances, both
articles may come into play together.42

I. CONCLUSION AND/OR PRAYER FOR RELIEF

For the foregoing reasons, Abravanel respectfully requests that this Court:
1. Declare that Abravanel has not violated TARA, the Rio Declaration and the
Stockholm Declaration.
2. Declare that Rathanka be liable for the attacks against MMC under doctrine of
State attribution;
3. Declare that Baldon Estenzic be guilty of war crimes;
4. Declare that Gen. Mahilomsevic is liable for the acts of Estenzic under the
doctrine of command responsibility;
5. Declare that Rathanka is liable for violation of the ICCPR

Respectfully Submitted.
Team 1811
Agents for the Federal State of Abravanel

42 General Comment No. 27, para. 7

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