Team Code A

Question 1
i.

Under IHL, states' primary responsibility is to distinguish between civilian and military objectives
while making an attack.1 According to ICJ, the principle of distinction is one of the cardinal
principles of international humanitarian law.2 By definition, the objectives that make an effective
contribution to military action or its destruction results in definite military advantage to the
enemy forces are to be considered military objectives.3 Except for military objectives, all
objectives are considered civilian.4 In the case at hand, the power plant in Surana went
inoperative in August 2020. However, the attack by Piesland’s forces was made more than a
year later, in September 2021. Therefore, it is submitted that an inoperative power plant didn’t
contribute militarily to Surana, and its destruction didn’t provide a military advantage to Piesland.
Since the aforementioned power plant doesn’t fall in military objectives, therefore, is to be
considered civilian. Since the civilian objectives are protected, the power plant affords
protection under IHL. Furthermore, even if it is considered as a military objective, the attack on
nuclear power plants would still remain prohibited.5

ii.
a)

Under IHL, if the inhabitants of a non-occupied territory spontaneously rise to resist the foreign
invasion, they are to be considered as levee en masse.6 To fall under this category, they must
be carrying arms openly and need not have an organized structure. Insofar as their status is
concerned, they cannot be called civilians, but combatants, due to their hostility against
belligerent forces.7 In the case at hand, the people of Surana, after reading the tweet of their
Prime Minister, took up arms to resist the invading forces on an unorganized basis, therefore, to
be considered as levee en masse. Since they were levee en masse, they cannot be regarded
as civilians but combatants.
b)

Under International law, the nationals of a neutral state are considered as neutral.8 However,
they lose this status once they commit hostile acts against either party to the conflict.9 In the
case at hand, volunteers from the neutral state were fighting against Piesland’s army to resist
invasion. Therefore, they cannot be regarded as neutrals or civilians under IHL. Hence, falling
under the category of combatants. In the eyes of IHL, it is yet unclear whether they can be
regarded as levee en masse.

1
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS 3 (AP I) art
48
2
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) I. C.J. Reports 1996 (8 July 1996) p. 226
¶78
3
AP I (n 1) art 52(2)
4
Ibid., art 52(1)
5
Ibid., art. 56(1)
6
ICRC, ‘Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. COMMENTARY
OF 2020 ARTICLE 4 : PRISONERS OF WAR’ <https://ihl-
databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=1796813618ABDA06C125
85850057AB95#220> ¶ 1061 & 1062
7
Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary
(Bloomsbury T & T Clark, 2016)
8
Hague Convention No. V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on
Land (adopted 18 October 1907, entered into force 26 January 1910) art 16
9
Ibid., art 17
 c)

As stated earlier, a neutral state's nationals are considered neutral.10 Furthermore, when found
on the occupied territory, they have the same legal status as nationals of occupied territory.11 It
is further endorsed by the definition of protected persons in the Geneva Convention since it
makes no distinction between protecting civilians of occupied territory and civilians of any other
neutral state.12 In the case at hand, those arrested from the hostel were citizens of a neutral
state. Therefore, they can be considered neutral and afford the same protection as civilians of
Surana.
iii.

Under IHL, those falling under the category of levee en masse, if captured by enemy forces,
have the status of prisoners of war.13 The same is the case with nationals of neutral states
fighting against either party to the conflict.14 In this case, the civilians of Surana and nationals of
a neutral state resisting the invasion, deserve the protection granted to POWs once arrested.
This includes, but is not limited to providing sufficient food on daily basis,15 clothing in sufficient
quantity,16 medical attention by detaining party,17 liberty to practice their religion,18 suitable
working conditions,19 and their release on the cessation of hostilities.20

Since the civilians arrested from the student hostel neither fall in the category of detainees nor
internees, therefore, deserve protection under article 75(3) of Additional Protocol I. This
includes informing them exact reasons for their arrest and immediate release if none are to be
found.21
iv.

The obligation of the detaining party to conduct a medical examination at least once a month to
check the health conditions of the detainees22 contain with it the restraint of consent of the
detainee. The medical inspections conducted must comply with other applicable rules of
humanitarian law and standards of medical ethics, including the principle of voluntary and
informed consent, unless a prisoner is incapable, for whatever reason, of giving that consent.23
Medical procedures must also explicitly recognize the right of patients to refuse any surgical
procedure, even where this would be justifiable from a medical point of view.24 This refusal
should be acknowledged and respected. However, in the case at hand, “the intrusive and
invasive” medical examination conducted upon the detainees without their consent and even
after the refusal is an unlawful act endangering the mental health and integrity of persons who

10
Ibid., art 16
11
ICRC, ‘Neutral State’ <https://casebook.icrc.org/glossary/neutral-state> accessed 19 July 2022
12
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adapted 12 August 1949, entered
into force 21 October 1950) 75 UNTS 287 (GC IV) art 4
13
Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21
October 1950) 75 UNTS 135 (GC III) art 4(A)(6)
14
ICRC, ‘The Law of Armed Conflict: Neutrality’ <https://www.icrc.org/en/doc/assets/files/other/law8_final.pdf>
accessed 20 July 2022.
15
GC (III) (n 13) art 26
16
Ibid., art 27
17
Ibid., art 30
18
Ibid., art 34
19
Ibid., art 51
20
Ibid., art 118
21
AP I (n 1) art 75(3)
22
GC (III) (n 13) art 31
23
AP I (n 1) art 11 & 16
24
Ibid., art 11(1)
are in the power of the adverse Party.25 This medical examination is, therefore, against the
principles of International Humanitarian Law and medical ethics.

Question 2
i.

Jus ad Bellum refers to the conditions under which states may resort to the use of force. It
allows states to use force when an attack on them is either foreseeable or imminent, provided
that the use of force was necessary and proportionate to a foreseeable attack.26 Furthermore,
states can also use this right against other states and non-state actors.27 In the case at hand,
Aprophe received credible intelligence of intended attacks, against its territory, by the Malachi
group, a non-state actor. Therefore, intending only to target the hideouts of Malachi, Aprophe
bombed Malachi’s hideouts in Rigalia, leading to desired results. Hence, it is submitted that
Aprophe, keeping the necessity and proportionality of use of force, launched a preemptive
attack against Malachi, therefore, justified under Jus ad Bellum. Furthermore, Aprophe had
already requested Cintra repeatedly to curb Malachi’s hideouts in their territory; however, due to
their lack of response, the attack of Aprophe is also justified under the unable/unwilling doctrine
of International law.28
ii.

It is submitted that armed conflict not of an international character existed between Aprophe
and Malachi from the start of 2019 since the requirements of the intensity of the armed conflict
and organizational structure of the armed group were present.29 Later on, due to excessive
bombing, Malachi sought refuge in the neighboring state and continued its attack. It is submitted
that it didn’t change the nature of the conflict as it remained to be a non-international armed
conflict, owing to the position adopted by US Supreme Court in Hamdan.30 The position is also
widely accepted by IHL commentators.31 Therefore, it is submitted that the attack on 15th
September by Aprophe was, in fact, in pursuance of this non-international armed conflict and
didn’t initiate a new type of armed conflict.
iii.

As per Tadic,32 in the case of internal armed conflict, the LOAC applies to the whole territory of
the state, not restricted to the place where actual combat takes place. Therefore, in the light of
the aforementioned jurisprudence, it is submitted that once the material requirements33 of an
armed conflict between the state of Aprophe and the Malachi group have been met,
international humanitarian law would apply in the entire territory of Aprophe and subsequently
Cintra, irrespective of the exact location of the Malachi group.

25
ICRC, ‘The Practical Guide to International Humanitarian Law: Medical Ethics’ <https://guide-humanitarian-
law.org/content/article/3/medical-ethics/> accessed 24 July 2022.
26
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Judgment)
ICJ Reports 1986 (27 June 1986) pg 14, ¶ 226 & 245
27
UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368, UNSC Res 1373 (28 September 2001) UN Doc
S/RES/1373.
28
Madaline Stantz, ‘The Unwilling or Unable Doctrine: The Right to Use Extraterritorial Self-Defense Against Non-
State Actors’ ( DPhil Thesis, Stockholm University 2017)
29
Prosecutor v. Dusko Tadic (Decision) ICTY IT-94-1, A Ch (2 October 1995) ¶ 562
30
Hamdan v. Rumsfeld, 548 U.S 65 (2006)
31
Otto Triffterer and Kai Ambos (n 7) pg 541
32
Prosecutor v. Dusko Tadic ( n 29 ) ¶ 70
33
Prosecutor v. Ignace Bagilishema (Judgment) ICTR-95-1-A, T Ch ( 7 June 2001) ¶ 101
 Question 3
As per Lubanga,34 while determining the admissibility of evidence, the court will follow a three-
pronged test: relevance between evidence and trial, the probative value of evidence and
whether the probative value has any prejudicial effect or not. Subsequent jurisprudence of the
ICC indicates that for evidence to have a probative value, it must have a ‘sufficient indicia of
reliability.’35 Moreover, if the evidence lacks sufficient reliability, it must be excluded.36 In light of
the aforementioned, it is submitted that without reliability, the evidence loses the probative value.
Therefore, it cannot be admitted.
Question 4

Martens clause is an expression of natural law theory of International law having achieved a
customary status.37 Its use justifies why the marten's clause was introduced in the preamble of
the Hague Convention; to protect persons concerning abnormalities of warfare.​ ​ Since its
inception, Marten’s clause has been utilized and reiterated in various judgments.38

It stipulates that in the absence of treaty IHL, principles of humanity and dictates of public
conscience shall govern the conduct of states.39 By inserting the ‘principles of humanity’,
Marten’s clause succeeds in framing the conduct of warfare aimed precisely to achieve a
military advantage.40 As far as the ‘public conscience’ is concerned, this standard appears to
imbue IHL with a democratic quality, whereby the collective voice of the public could be
theoretically sufficient to sway judicial interpretation in a direction that accords with public
opinion.41
Question 5

The IHL also prohibits using certain weapons as means of warfare so that the suffering of those
participating in armed conflict and ordinary civilians can be avoided. Specific restrictions or
prohibitions includes the prohibition of chemical weapons,42 weapons whose primary effect is to
injure by fragments that cannot be detected by X-rays,43 Incendiary weapons and anti-
personnel mines,44 cluster munitions45 and nuclear Weapons.46

34
The Prosecutor v. Thomas Lubanga Dyilo (Decision) ICC-01/04-01/06, Ch I (21 October 2010) ¶ 27
35
The Prosecutor v. Jean-Pierre Gombo (Decision) ICC-01/05-01/08, T Ch II (9 February 2012) ¶ 15
36
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision) ICC-01/04-01/07, T Ch II (17
December 2007) ¶ 21
37
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (n 2) ¶ 84
38
The Prosecutor v. kupreskic et al (Judgment) IT 95-16-T, T Ch (14 January 2000) ¶ 525 & 526,
39
Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning
the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900) preamble,
40
Jean Pictet, Development and Principles of International Humanitarian Law (Martinus Nijhoff Publishers, 1985)
62.
41
Sean McBride, ‘The Legality of Weapons for Societal Destruction’ in Christophe Swinarski (ed), Studies and
Essays on International Humanitarian Law and Red Cross Principles in Honor of Jean Pictet (Martinus Nijhoff
Publishers, 1984) 401, 406.
42
The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons
and on their destruction (adopted 13 January 1993, entered into force 29 April 1997) 1975 UNTS 45 (CWC) art
(I)(1)(a)
43
The United Nations Convention on Certain Conventional Weapons (adopted 10 October 1980, entered into force
2 December 1983) 1342 UNTS 137 (CCW), Protocol on non-detectable fragments.
44
Convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and their
destruction (adopted 3 December 1997 , entered into force 1 March 1999 ) 2056 UNTS 211 (Ottawa Convention)
art (1)(1)(a)
45
The Convention on Cluster Munitions (adopted 30 May 2008, entered into force 1 August 2010) 2688 UNTS 39
(Clusters Munition Convention) 1(1)(a)
46
Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017, entered into force 22 January 2001)
C.N.475.2017.TREATIES-XXVI.9 (Nuclear weapons convention) art 1(1)(d)