ICC Moot Court Competition (International Rounds: Finalists): Defence Memorial
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TEAM NO. 25 COUNSEL FOR THE GOVERNMENT OF YUNKEL MOOT COURT COMPETITION THEEENGLISH LANGUAGE , 2016 ICC MICC OOT COURT COMPETITION ININ THE 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
Andronico O.
Conflict: Reflections on the existing and Future
¶¶ 22, 23, 24
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
Frederick J.
Salmonellosis and the Effectiveness of a Boil Water Order 87(4) AMERICAN JOURNAL OF PUBLIC HEALTH, 580, 584 (1997)
5
¶ 28
Barnes, Ashley
The Arctic Environment and International
and
Humanitarian Law
Waters,
49 Y.B. INT'L LAW, 213 (2011)
¶ 24
Christopher Bassiouni, Cherif
Crimes Against Humanity: The Case for a
M.
Specialised Convention
¶ 11
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 BIOLOGICAL AGENTS SINCE 1900 (2002)
6
¶ 28
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
Margaret M.
ROUTLEDGE HANDBOOK OF INTERNATIONAL
¶8
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
M.
Piracy within the Jurisdiction of the International Criminal Court 11 CHI. J. INT’L L.,197 (2011)
7
¶4
Duttweiler,
Liability for Omission in International Criminal Law
Michael
58(1) INTERNATIONAL CRIMINAL LAW REVIEW, 1
¶ 15
(2006) Fruili, Michaela
Are Crimes against Humanity More Serious than
¶6
War Crimes? 12 EJIL, 329 (2001) Glind H. and
Modern-Day Child Slavery
Kooijmans, J.
22 CHILDREN & SOCIETY, 150 (2008)
Hansen, Thomas
The Policy Requirement in Crimes Against
Obel
Humanity: Lessons from and for the Case of Kenya
¶6
¶ 13
43(1) THE GEO. WASH. INT’L L. REV., 1 (2011) Happold,
Child Recruitment as a Crime under the Rome
Matthew
Statute of the International Criminal Court
¶¶ 6, 7
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
Research in
Crime
International Law
29 AM. J. INT’L. L., 435 (1935)
Hoffman, Tamas
Squaring the Circle? – International Humanitarian
¶¶ 2, 3
¶ 17
Law and Transnational Armed Conflicts HAGUE ACADEMY OF INTERNATIONAL LAW, 5 (2010) Hulme, Karen
WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD (2004)
8
¶ 25
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
Heinrich
Law Set out in Nuremberg, as mirrored in the ICC
¶ 13
Statute 2 J. INT'L CRIM. JUST, 38 (2004) Jorgenson,
The Protection of Freshwater in Armed Conflict
Nikolai
3(2) JOURNAL OF INTERNATIONAL LAW AND
¶ 24
INTERNATIONAL RELATIONS 57 (2007) Kraytman, Yana
Universal Jurisdiction- Historical Roots and
Shy
Modern Implications 2 BRUSSELS JOURNAL OF INTERNATIONAL STUDIES, 94, 103 (2005)
9
¶4
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:
Jessica
The Limits of Article 8(2)(b)(iv) of the Rome Statute
¶¶ 24, 27
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 nd
(2 edn., 2015)
10
¶¶ 2, 3, 5
Schabas, William AN INTRODUCTION TO THE INTERNATIONAL A.
¶¶ 5, 6, 15
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
G.
international humanitarian law: A critique of
¶¶ 18, 19
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
Susan W.
Children TJSL Legal Studies Research Paper No. 1020341 (2007)
11
¶7
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
Sandrine
Nations Convention on the Rights of the Child and
¶7
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
Jessberger, F.
(3rd edn., 2014).
Willmott, Diedre
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 (2004)
12
¶¶ 2, 13, 15
¶ 23
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 Case No. ICC-01/05-01/13, Decision on Disqualification of Judge Cuno Tarfusser on June 20, 2014
13
¶ 31
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. Case No. IT-03-66-T, Trial Chamber II, Judgment on November 30, 2005
14
¶¶ 8, 9, 11
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
PROTOCOL I
12 August 1949, and relating to the Protection of
¶¶ 6, 22
Victims of International Armed Conflicts (Protocol I) 8 June 1977 ADDITIONAL
Protocol Additional to the Geneva Conventions of
PROTOCOL II
12 August 1949, and relating to the Protection of
¶6
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
CRIMES
Court, ICC-ASP/1/3
ENMOD
Convention on the Prohibition of Military or Any
CONVENTION
Other Hostile Use of Environmental Modification
¶¶ 3, 6, 13, 15, 27
¶ 22
Techniques, United Nations (May 18, 1977) GENEVA
Convention (I) for the Amelioration of the
CONVENTION I
Condition of the Wounded and Sick in Armed
¶ 17
Forces in the Field Geneva, August 12, 1949 OPTIONAL
Optional Protocol to the Convention on the Rights
PROTOCOL TO
of the Child on the Involvement of Children in
THE CRC
Armed Conflict (February 12, 2002)
16
¶6
PALERMO
Protocol to Prevent, Suppress and Punish
PROTOCOL
Trafficking in Persons, Especially Women and
¶7
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 (July 1, 2002)
¶¶ 2, 4, 6, 7, 8, 10, 13, 30, 31
RULES OF
Rules of Procedure and Evidence
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
¶¶ 30, 31
¶4
(1982)
Other Sources AMNESTY
Universal Jurisdiction: The Duty of States to Enact
INTERNATIONAL
and Implement Legislation
¶4
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 and The Challenges of Contemporary Armed Conflicts 03/IC/09 (2003)
17
¶¶ 26, 27
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/salmonellainfection/Pages/Introduction.aspx/ COMMITTEE ON
Report of the Committee on Child Labour, 87th
CHILD LABOUR
Session of International Labour Conference (1999)
UN WAR CRIMES United Nations War Crimes Commission Project COMMISSION
(1942)
WHO
WHO Guidelines for Drinking-water Quality: Recommendations (2008)
18
¶7
¶8
¶ 28
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
-IWHETHER 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
-IIWHETHER OSTY’S CONTAMINATION OF MIRROR LAKE CAN BE TRIED UNDER ARTICLE 8(2)(B)(IV) OF THE ROME STATUTE
-IIIWHETHER 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 slavelike 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, ModernDay 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 PreTrial 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. ICC01/05-01/08, 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 NonInternational 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 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). AND
94
Nikolai Jorgensen, The Protection of Freshwater in Armed Conflict, 3(2) JOURNAL OF INTERNATIONAL LAW 57, 75 (2007).
AND INTERNATIONAL RELATIONS 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/salmonellainfection/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/salmonellainfection/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).
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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.
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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-01/0401/06, 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. ICC02/05-03/09, 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.
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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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