VITSOL Moot Court Competition Winning Memo - Appellant .

TEAM CODE: TH THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS 1st VITSOL MOOT COURT COMPETION ON INTERNATIONAL LAW

THE CASE CONCERNING ARMED ACTIVITIES AND THE TREATMENT OF CITIZENS OF THE DEMOCRATIC REPUBLIC OF ORANGIA

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

MEMORIAL FOR APPLICANT

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

TABLE OF CONTENTS

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

ISSUE I.

LEMANIA’S DRONE ATTACKS AND THE USE OF FORCE ARE IN VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF ORANGIA

AND

AMOUNTED

TO

THE

VIOLATION

OF

THE

PROVISIONS OF THE UN CHARTER ON THE USE OF FORCE AND OTHER RELEVANT INTERNATIONAL LAW…………………………1-7 ISSUE II.

DETENTION AND ILL TREATMENT OF ORANGIAN CITIZENS BY LEMANIA ARE IN VIOLATION OF ITS OBLIGATIONS UNDER INTERNATIONAL HUMANITARIAN LAW, SPECIFICALLY DEALING WITH

OCCUPATION

AND

THE

RELEVANT

HUMAN

RIGHTS

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

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

INDEX OF AUTHORITIES

CASES, ADVISORY OPNIONS AND ARBITRAL RULINGS INTERNATIONAL COURT OF JUSTICE 1.

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

2.

Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.United States of America), Merits, [1986], ICJ Reports, 14

3.

Case concerning United states diplomatic and consular staff in Tehran (Iran v. United States of America), [1980] I.C.J Rep 3

4.

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

5.

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

6.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion, 9 July 2004

7.

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J Rep 226

8.

See Case Concerning Armed Activities On The Territory Of Congo (Congo V. Uganda) (2006), 45 I.L.M. 271

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 1.

Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal) (ICTY, IT-94-1-AR72, 2 October 1995) Prosecutor v Boškoski (ICTY, IT-04-82-T, 10 July 2008)

2. 3.

Prosecutor v. Anto Furundzija, IT-95-17/1-T, Judgement (10 December 1998) OTHER INTERNATIONAL JUDGEMENTS AND ARBITRAL AWARD

1.

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

2.

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

3.

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

4.

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

5.

Lighthouses Arbitration, 12 R.I.A.A. 155, 198 (1956);, United states of America v. Iran (Diplomatic and Consular Staff in Tehran) Judgment of 24 May 1980

6.

Nationality Deswwwšcrees in Tunis and Marocco case, P.C.I.J. Rep., Series B, No.4, (1923)

7.

Salas and Others v. the United States (US military intervention in Panama), Report No. 31/93, Case No. 10.573, (Oct. 14, 1993) TREATIES, CONVENTIONA AND DECLARATIONS

1.

Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations of 1970, UN A/RES/25/2625

2.

Hague Convention IV concerning the Laws and Customs of War on Land, 18 October 1907

3.

International Covent on Civil and Political Rights, 16 Dec. 1966, GA Res 2200A (XXI)

4.

International Law Commission’s Draft Articles on State Responsibility of States for Internationally Wrongful Acts, 26 Jul. 2001, art. 1, U.N. Doc A/CN.4/L.602/Rev.1 (2001)

5.

Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S 609

6.

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

7.

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

8.

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

1.

AGARWAL H.O, INTERNATIONAL LAW AND HUMAN RIGHTS, CENTRAL LAW PUBLICATIONS (20th ed, 2013)

2. 3.

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

PUBLIC INTERNATIONAL LAW, SEVENTH EDITION, ‘USE OF FORCE’ (2008) BRUNO SIMMA, ED. THE CHARTER OF THE UNITED NATIONS: A

5.

COMMENTARY, NEW YORK: CAMBRIDGE UNIVERSITY PRESS (2nded, 2002)

6.

CARLOS FERNÁNDEZ DE CASADEVANTE ROMANI, SOVEREIGNTY AND INTERPRETATION OF INTERNATIONAL NORMS, SPRINGER PUBLICATION (1st, 2007)

7.

D J HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW, LONDON SWEET & MAXWELL(6th ed., 2004) DONALD K ANTON, PENELOPE MATHEW & WAYNE MORGAN,

8.

INTERNATIONAL LAW: CASES AND MATERIALS, OXFORD UNIVERSITY PRESS (1st ed., 2008) H. STEINBERGER, ‘SOVEREIGNTY’, IN MAX PLANK INSTITUTE

9.

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

10.

I.A SHEARER, STARKE’S INTERNATIONAL LAW OXFORD UNIVERSITY PRESS ( (11th ed, 1994)

11. 12.

I.A SHEARER, STARKE’S INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS 1994) REPRINT. (11th ed. 2013) ILIAS BANTEKAS AND LUTZ OETTE, INTERNATIONAL HUMAN RIGHTS LAW AND PRACTICE, CAMBRIDGE UNIVERSITY PRESS (2013)

13.

J.P. COT & A PELLET, LA CHARTE DES NATIONS UNIES (2nd ed.)(1991) JAMES A GREEN, THE INTERNATIONAL COURT OF JUSTICE AND

14.

SELF-DEFENCE IN INTERNATIONAL LAW, HART PUBLISHING (2009)

15.

JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS (8th ed, 2013)

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

16.

JUS AD BELLUM, JUS IN BELLO, AND JUS POST BELLUM, RESEARCH HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW

17. 18.

MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS, CCPR COMMENTARY 762 (2005). MARC WELLER, OXFORD HANDBOOK OF THE USE OF FORCE IN INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS (2015)

19.

MICHAEL BOTHE, KARL JOSEF PARTSCH, & WALDEMAR A. SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS (1982) MICHAEL N. SCHMITT, RESPONDING TO TRANSNATIONAL

20.

TERRORISM UNDER THE JUS AD BELLUM, in INTERNATIONAL LAW AND ARMED CONFLICT: EXPLORING THE FAULTLINES 175 (2007); MICHELLE FARRELL, THE PROHIBITION OF TORTURE IN

21.

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

22.

INTERNATIONAL LAW OF WAR: TRANSNATIONAL COERCION AND WORLD PUBLIC ORDER (1994)

23.

NIGEL D. WHITE AND CHRISTIAN HENDERSON, RESEARCH HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW: JUS AD BELLUM, JUS IN BELLO AND JUS POST BELLU, EDWARD ELGAR PUBLISHING LIMITED (2013)

24.

ROBERTA ARNOLD AND NOELLE QUENIVER, INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS LAW, MARTINUS NIJHOFF PUBLISHERS (2008)

25.

RUSSEL AND MUTHER, A HISTORY OF THE UNITED NATIONS CHARTER (1958) SARAH JOSEPH, JENNY SCHULTZ, & MELISSA CASTAN, THE

26.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 88–91 (2nd ed. 2004).

27.

SHIV R S BEDI, THE DEVELOPMENT OF HUMAN RIGHTS LAW BY THE JUDGES OF THE INTERNATIONAL COURT OF JUSTICE,

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

HART PUBLISHING (2007) 28. 29.

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

30.

COMMENTARY ON THE ADDITIONAL PROTOCOLS OF JUNE 1977 TO THE GENEVA CONVENTION OF 12 AUGUST 1949 (1987) YORAM DINESTEIN, WAR, AGGRESSION AND SELF

31.

DEFENSE,NEW YORK: CAMBRIDGE UNIVERSITY PRESS (3rd ed, 2000)

32.

YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT (2nd ed. 2004) MISCELLANEOUS

1.

Giuliana Ziccardi Capaldo, Providing a right to Self- Defense against Large-Scale attacks by Irregular Armed Forces: The Israeli Hezbollah Conflict, 48 HARV, INT’L L.J. 101, 103 (2007)

2.

Jan Klabbers, ‘Rebel with a Cause? Terrorists and Humanitarian Law’ (2003) 14 European Journal of International Law’

3.

Jianming Shen, ‘National Sovereignty and Human Rights in a Positive Law Context’, (2002) 26 Brooklyn journal of International Law 417

4.

M. Roscini, ‘Threats of Armed Force and Contemporary International Law’, 54 NILR, 2007

5.

Meindersma, ‘Legal Issues Surrounding Population Transfers in Conflict Situations.’ (1994) 41 NILR 31

6.

R. Sadurska, ‘Threats of Force’, 82 AJIL, 1988, p. 239, and N. White and R. Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat Too Far?’ 29 California Western International Law Journal, 1999

7.

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

STATEMENT OF JURISDICTION

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

STATEMENT OF ISSUES

ISSUE 1 - LEMANIA’S DRONE ATTACKS AND THE USE OF FORCE ARE IN VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF ORANGIA AND AMOUNTED TO THE VIOLATION OF THE PROVISIONS OF THE UN CHARTER ON THE USE OF FORCE AND OTHER RELEVANT INTERNATIONAL LAW. ISSUE 2 - DETENTION AND ILL TREATMENT OF ORANGIAN CITIZENS BY LEMANIA

ARE

IN

VIOLATION

OF

ITS

OBLIGATIONS

UNDER

INTERNATIONAL HUMANITARIAN LAW, SPECIFICALLY DEALING WITH OCCUPATION SPECIFICALLY

AND THE

THE

RELEVANT

INTERNATIONAL

HUMAN

RIGHTS

COVENANT

ON

TREATIES CIVIL

AND

POLITICAL RIGHTS OF 1966 AND THE CONVENTION AGAINST TORTURE AND

OTHER

CRUEL,

INHUMAN

OR

DEGRADING

TREATMENT

OR

PUNISHMENT OF 1984 AND UNDER OTHER RELEVANT INTERNATIONAL LAW.

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

SUMMARY OF ARGUMENTS

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

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

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

ARGUMENTS ADVANCED

ISSUE 1 - LEMANIA’S DRONE ATTACKS AND THE USE OF FORCE ARE IN VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF ORANGIA AND AMOUNTED TO THE VIOLATION OF THE PROVISIONS OF THE UN CHARTER ON THE USE OF FORCE AND OTHER RELEVANT INTERNATIONAL LAW. 1.1. The use of force by Lemania amounted to the violation of the provisions of the U.N. Charter on the use of force. Lemania and Orangia, being a member country of the U.N.1 are under an obligation to act in accordance with the U.N. Charter. The U.N. Charter has various provisions prohibiting the use of force.2 It is submitted that the threat to use of force, and the use of force by Lemania violated the provisions of the U.N. Charter. Firstly, there was a use of force under art. 2(4) by Lemania (A.) Secondly, the use of force did not fall in exception under art. 51.(B.). A. The use of force by Lemania violated Art. 2(4). The art. 2(4) of the U.N. Charter prohibits the threat of use of force as well as the use of force by its members3. Further art. 2(3) states that the international disputes between members shall be settled by peaceful means4. The ICJ, in the Corfu Channel5 case, Congo6 case and the Nicaragua7 Case, has highlighted that the use of force, without valid defense, violates art. 2(4). In the present case, therefore it is contended that Lemania violated art. 2(4) by a threat to use of force (i.) as well as the actual use of force (ii.). i. Threat to use of force A threat of force consists ‘in an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government’8. In Guyana v.

1

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

22

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

54

G.A. Res. 3314 Art. 3 G.A. Res. 2625 (XXV) (24 October 1970), G.A. Res. 3314, Art 5 (2) 56 Nicaragua, Merits, para 190. 57 Yearbook of the International Law Comission, 1966, vol II, 270, para 1. 58 James Crawford, Brownlie’s Principles of Public International Law (8 th edn, Oxford: Oxford University Press, 2012), 595-6 59 Case Concerning the Barcelona Traction, Light and Power Co, Ltd (New Application: 1962) (Belgium v. Spain), Second Phase, Judgement of 5 Feb 1970, ICJ Rep1970, para 34. 60 Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility, ¶ 73; Military and Paramilitary Activities in and against Nicaragua, Merits, ¶ 187-190 61 Israeli Wall Advisory Opinion 62 The Max Planck Encyclopedia of Public International Law, Vol, 10 Oxford University Press p. 609 55

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

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

Hague regulations have been violated.

In the case of Legality of the Threat or use of Nuclear Weapons,67 the ICJ concluded that the provisions of Hague regulations68 ‘have become a part of the customary international law’69 and thus are binding upon the parties in the instant case. Art. 4370 highlights that the occupant must preserve, as far as possible, the existing laws of the territory.71 The ICJ interpreted that an occupying power’s obligations set out in art. 43 ‘comprises the duty to secure respect for the applicable rules of international human rights 63

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

GCs and APs relating to occupation have been violated.

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

72

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

80

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

81

HANS-PETER GASSER, PROTECTION OF THE CIVILIAN POPULATION, IN THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 281 (Dieter Fleck ed., 1995) 82 GC art. 3 83 AP I art. 75 84 GC art 3; AP I art 75(4) 85 Jan Klabbers, ‘Rebel with a Cause? Terrorists and Humanitarian Law’ (2003) 14 European Journal of International Law’ 299. 86 AP I art. 50 87 AP I art 50(3). 88 Art. 49, GC IV; C. Meindersma, ‘Legal Issues Surrounding Population Transfers in Conflict Situations.’ (1994) 41 NILR 31 89 JONATHAN CROWE & KYLIE WESTON- SCHEUBER: PRINCIPLES OF INTERNATIONAL LAW (2013) 90 Additional Protocol I, art 85(4)(a); Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (CUP 2005) rules 129–31. 91 GC IV art. 49, 79-141,; JUS AD BELLUM, JUS IN BELLO, AND JUS POST BELLUM, RESEARCH HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW,

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

legislation applicable in the territory in which they are detained will continue to apply92 and the interned persons must be released as soon as the reasons, which necessitated their internment no longer exists.93 2.2.Lemania violated its obligation towards Orangian citizens under IHRL. A. Obligations under IHRL apply extra-territorially, and regardless of IHL obligations A growing body of international jurisprudence confirms that IHRL may apply extraterritorially to occupied territories. 94 This reasoning has moreover been supported by international bodies such as the Security Council 95 or the Parliamentary Assembly of the Council of Europe 96 .The ICJ, emphasized in broad and unmistakable terms that (all) “international human rights instruments are applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory, particularly in occupied territories”97. The lex specialis character of the law of belligerent occupation does not exclude the application of human rights to the occupied population.98 B. Lemania violated its treaty obligations under ICCPR and the CAT i.

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

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

92

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

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

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

Arbitrary Detention without any legal proceedings violated ICCPR

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

101

Concluding Observations on Israel (2010) UN doc CCPR/C/ISR/CO/3 : (2003) UN doc CCPR/CO/78/ISR, para 15 102 Id. 103 THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS CASES, MATERIALS AND COMMENTARY 3RD EDITION SARAH JOSEPH AND MELISSA CASTAN (OXFORD UNIVERSITY PRESS) p. 169 ¶ 8.06 104 Id. p.176 ¶8.16 105 ICCPR art 2(3) in conjunction with ICCPR art. 6. 106 A/HRC/25/L.32 107 Factsheet ¶11 108 Factsheet ¶ 16 109 ICCPR art. 9, 110 General Comment 8

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

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

Torture amounts to violation of ICCPR and CAT

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

Van Alphen v The Netherlands (305/88) ICCPR art. 9(1) 113 THE ICCPR, CASES, MATERIALS AND COMMENTARY, SARAH JOSEPH AND MELISSA CASTAN (3rd ed. ) Pg. 368 (9(3)) 114 Nazarov v. Uzbekistan ¶ 6.2. 115 Marques de Morais v. Angola (1182/02) : Portorreal v. Dominican Republic (188/84) : Torres v. Finland (291/88) : Vuolanne v. Finland 116 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 235 112

117 118

General Comment 13, ¶1.

119 120 121

Convention Against Torture and Other. Art. 1 (1) See Prosecutor v. Zejnil Delalic et al., IT-96-21-T, Judgment (16 November 1998) at para. 459 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber). 122

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

suggests an ‘aggravated form of cruel, inhuman and degrading treatment or punishment’.125 In this case, the combined use of stress positions, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink, when accompanied physical beating are found to be acts that are in derogation of provision against torture and ill-treatment.126 The act inflicted by the Lemanian forces violates the, absolute and non-derogable127 right against torture of the Orangian citizens. Art. 7 of ICCPR, provides for the right against torture, cruel and degrading Treatment. 128 This is specified as a non-derogable right

129

and is accorded with the widest possible

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

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

Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (oxford University Press, 2008) p.28 124 Convention Against Torture, art. 1(1) 125 Denmark et al v. Greece (1969) 12 Yearbook of the ECHR, p. 186 126 Michelle Farrell, The Prohibition of Torture in Exceptional Circumstances, Cambridge University Press, (2013), p.70; Ireland v. United Kingdom (App. No. 5310/71)(Report of the Commission, 25 January 1976), p.402;; Selmouni v. France (App No. 25803/94) ECHR 28 July 1999, para 101.. 127 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984. Art. 2 (2); European Convention on Human Rights, Art. 15(1)(2). 128 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, art. (c) [ICCPR] 129 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR commentary 2nd Edn. (2005), p. 157. 130 Barry M Klayman, ‘The Definition of Torture in International Law’ (1978) 51 Temple Law Quarterly, 466. 131 UNHRC, ‘General Comment 20’ (1992) 132 Art. 65 -77 GC IV 133 Protocol Additional to GC of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol 1), U.N. Doc. A/32/144, Annex I, II (1977) [hereinafter AP I] 134 GC art. 3 135 AP I art. 75(4) 136 ICCPR art. 9(3), 14(3)(c)

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

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

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

137

Hague Regulation art. 43,; DRC v Uganda p. 168, ¶ 172-5 Al-Skeini v. Sec. of State for Defence [2007] UKHL 26, [2007] 3 All E.R. 865, ¶ 129. 139 IA 4/2013, Fact sheet ¶19 140 UNSC resolution 1456 (20 January 2003) 141 UNSC resolution 1624 (14 September 2005) 142 IA 5/2013, Fact sheet ¶19 143 Hague Regulation art. 43; DR. S.K. KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS, CENTRAL LAW AGENCY, 19th ed. , 2014 144 Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989), p.31; Michelle Farrell, The Prohibition of Torture in Exceptional Circumstances, Cambridge University Press, (2013), p.6; Prosecutor v. Anto Furundzija, IT-95-17/1-T, Judgement (10 December 1998) at para. 257 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) [Furundzija]. 145 Belgium v. Senegal, (2012) ICJ Reports 2012, Separate Opinion of Judge Cancado trindade, para. 182 146 Furundzija, ¶ 153 138

xiii

WRITTEN SUBMISSION ON BEHALF OF ORANGIA

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

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

(b) Lemania has committed acts of aggression against Orangia

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

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

& JUDGEMENT AS THIS HON’BLE COURT MAY

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

All of which is respectfully submitted Sd/- ______________________ AGENTS FOR THE STATE OF ORANGIA Place: The Hague, The Netherlands

xiii