VITSOL Moot Court Competition Winning Memo - Respondent.

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 RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF LEMANIA

TABLE OF CONTENTS

INDEX OF AUTHORITIES- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -iv-ix STATEMENT OF JURISDICTION- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x STATEMENT OF FACTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xi-xii STATEMENT OF ISSUES- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xiii SUMMARY OF ARGUMENTS- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xiv ARGUMENTS ADVANCED- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1-15 Issue 1: Orangia’s failure to prevent MUF activities against Lemania is in violation of its obligations towards Lemania and therefore drone attacks by its national intelligence agency and subsequent use of force by Lemania were in the exercise of right of self-defense in accordance with the UN charter and other relevant international law. – 1-6 1.1 Orangia’s failure to prevent MUF activities against Lemania is in violation of its obligations towards Lemania – 1-2 1.2 Drone attacks and subsequent use of force by Lemania was in the exercise of right of self-defense in accordance with the UN charter and other relevant international law. 2-6 i. Attacks of MUF constituted an armed attack against Lemania

2-3

ii. The attack by MUF can be attributed to Orangia

3-4

iii. Lemania’s attack on Orangia was a lawful act of self-defence under the U.N.Charter and customary international law

4-5

iv. Lemania’s use of drones is in anticipatory self-defense of further acts of terror 5-6

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Issue 2 - Lemania’s actions on the territory of Orangia were in accordance with its obligations permitted under the international humanitarian law applicable to situations of occupation and other relevant international law and Lemania cannot be held accountable for international human rights obligations beyond its territory and jurisdiction. – 6-15 2.1 Lemania’s actions on the territory of Orangia were in accordance with its obligations permitted under the IHL applicable to situations of occupation and other relevant international law - 6-9 A. Lemania’s attack was not indiscriminate 6-7 B. The attack was on valid Military objective 7-8 C. The object of the attack was a military objective and not civilian population - 8 D. Lemania’s actions are in accordance to its obligations as an occupying power 8-9 2.2 LEMANIA CANNOT BE HELD ACCOUNTABLE FOR IHR OBLIGATIONS BEYOND ITS TERRITORY AND JURISDICTION 9-15

A. IHR treaties don’t apply extra-territorially in cases of armed conflict and military occupation 9-15 i.

The Ordinary Meaning of the Instruments 9-13

ii.

The Preparatory Work 13-14

iii.

Subsequent State Practice 14-15

PRAYER- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xv

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

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

2.

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

3.

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

4.

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

5.

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

6.

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)

2.

Prosecutor v Boškoski (ICTY, IT-04-82-T, 10 July 2008) 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.

Banković v. Belgium, 2001–XII Eur. Ct. H.R. 333 (GC) TREATIES, CONVENTIONA AND DECLARATIONS

1.

Annual Report of the Inter-American Commission on Human Rights: 1997, OEA/Ser.L/II.28/Doc.7 271

2.

CHR, Report of the Working Group on a Draft Convention Against Torture, UN Doc. E/CN.4/1984/72 (Mar. 9, 1984).

3.

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

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4.

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

5.

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

6.

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)

7.

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

8.

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

9.

S/RES/1269 (1999)

10.

S/RES/1368 (2001)

11.

UN Doc. CCPR/C/79/Add.93 (1998)

12.

UN Doc. CCPR/CO/78/ISR (Aug. 21, 2003)

13.

UN Doc. E/CN.4/365, at 14 (1950).

14.

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

1. 2.

ALEXANDER ORAKHELASHVILI, PEREMPTORY NORMS IN INTERNATIONAL LAW,OXFORD UNIVERSITY PRESS ( 2006) B. SIMMA, THE CHARTER OF THE UNITED NATIONS (2nd ed.) (2002) BOWETT, SELF DEFENCE, AND IAN BROWNLIE, PRINCIPLES OF

3.

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

4.

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

5.

C. GREENWOOD, CUSTOMARY INTERNATIONAL LAW AND THE FIRST GENEVA PROTOCOL OF 1997 IN THE GULF CONFLICT,

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LONDON: SWEET & MAXWELL. (1993) 6.

CARLOS FERNÁNDEZ DE CASADEVANTE ROMANI, SOVEREIGNTY AND INTERPRETATION OF INTERNATIONAL NORMS, SPRINGER PUBLICATION (1st, 2007) DONALD K ANTON, PENELOPE MATHEW & WAYNE MORGAN,

7.

INTERNATIONAL LAW: CASES AND MATERIALS, OXFORD UNIVERSITY PRESS (1st ed., 2008)

8.

GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES (2004) H. STEINBERGER, ‘SOVEREIGNTY’, IN MAX PLANK INSTITUTE OF

9.

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

10. 11.

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)

12. 13. 14. 15.

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, (7th ed.) J.P. COT & A PELLET, LA CHARTE DES NATIONS UNIES (2nd ed.)(1991) JAMES A GREEN, THE INTERNATIONAL COURT OF JUSTICE AND SELF-DEFENCE IN INTERNATIONAL LAW, HART PUBLISHING (2009) JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS (8th ed, 2013)

16. 17.

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)

18.

MICHAEL BOTHE, KARL JOSEF PARTSCH, & WALDEMAR A. SOLF,

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NEW RULES FOR VICTIMS OF ARMED CONFLICTS (1982) MICHAEL N. SCHMITT, RESPONDING TO TRANSNATIONAL 19.

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

20.

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

21.

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

22.

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)

23.

ROBERTA ARNOLD AND NOELLE QUENIVER, INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS LAW, MARTINUS NIJHOFF PUBLISHERS (2008) SARAH JOSEPH, JENNY SCHULTZ, & MELISSA CASTAN, THE

24.

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

25.

SHIV R S BEDI, THE DEVELOPMENT OF HUMAN RIGHTS LAW BY THE JUDGES OF THE INTERNATIONAL COURT OF JUSTICE, HART PUBLISHING (2007)

26. 27.

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 COMMENTARY

28.

ON THE ADDITIONAL PROTOCOLS OF JUNE 1977 TO THE GENEVA CONVENTION OF 12 AUGUST 1949 (1987)

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29.

30.

YORAM DINESTEIN, WAR, AGGRESSION AND SELF DEFENSE,NEW YORK: CAMBRIDGE UNIVERSITY PRESS (3rd ed, 2000) YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT (2nd ed. 2004) RESEARCH PUBLICATIONS

1.

D Murphy, “ Terrorism and the concept of Armed Attack in article 51 of the U.N Charter” [2002] 43 Harv Int L.J 41

2.

Alexandrov, Self-Defence Against the Use of Force in International Law, The Hague, 1996;)

3.

S. Schwebel, Aggression, Intervention and Self-Defence in Modern International Law, 136 HR, 411 (1972)

4.

O. Schacter, The Right of States to Use Armed Force, 82 Michigan Law Review, 1984

5.

Schacter, Self-Defence and Rule of Law, 83 A.J.I.L, 259 (1989)

6.

C.H.M Waldock, The Regulation of the Use of Force by Individual States in International Law, 81 H AGUE R ECUEIL

7.

Judith Gardam, ‘A role for Proportionality in the war on Terror’ (2005) 74 Nordic Journal of international law

8.

Y Dinstein, “Legitimate military objectives under the current Jus in Bello” in colloquium: legal and ethical lessons of Nato’s Kosovo Campaign” Aug. 8-10, 2001

9.

W.J Fenrick, “The law applicable to targeting and proportionality after operation allied force: a view from outside” [2002] 3 YIHL 53

10.

Y Dinstein, “Comment on Protocol I” [1997] 37 IRRC 515

11.

Manfred Nowak, The Effectiveness of the International Covenant on Civil and Political Rights—Stocktaking After the First Eleven Sessions of the UN-Human Rights Committee, 1 HUM. RTS. L.J.

12.

Sean D Murphy, “Self-Defence and the Israeli Wall Advisory Opinion: An Ipse Dixit From the ICJ?” (2005) 99 A.J.I.L., 62

13.

Brownlie, The Use Of Force In Self Defence, 37 B.Y.I.L., 183 (1961)

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14.

Ruth Wedgwood, “Responding to Terrorism: The Strikes against bin Laden” (1994) 24 Yale J. Int’l L. 559 at 564-65.

15.

Bothe, Terrorism and the Legality of Pre-Emptive Force, 14 EJIL 227 (2003)

16.

Position Paper of Australian Section of International Commission of Jurists on the Appropriate Response of the UN to the Attacks on the USA available at http://www.ejil.org/forum WTC/messages/ 17.html, last visited 13 Feb, 2016.

17.

R Normand and C.A F Jochnick, “The Legitimization of violence: a critical analysis of the gulf war’ [1994] 35 Harv. ILJ 2, 11

18.

M. Sassolì, “Legislation and maintenance of public order and civil life by occupying powers,” European Journal of International Law, Vol. 16, No. 4, 2005

19.

Tristan Ferraro, Report on Occupation and other forms of Administration of foreign Territory, International Committee of the Red Cross(ICRC) 2012

20.

Research in International Law (Harvard Law School), Draft Convention on the Law of Treaties, Art. 19, Comment, 29 AM. J. INT’L. SUPP.(1935)

21.

Michal j. Dennis ‘Non- Application of Civil and Political Rights Treatise extraterritorially during times of international armed conflicts’ Vol. 99 of Am. J. Int’l L.

22.

M.J. Dennis, ‘Application of human rights treaties extraterritorially in times of armed conflict and military occupation’, 99 AM. J. INT’L L. 119, 122-127 (2005)

23.

CHR, Report of the Working Group on a Draft Convention Against Torture, ¶ 5, UN Doc. E/CN.4/1984/72 (Mar. 9, 1984)

24.

M. Nowak, ‘The effectiveness of the International Covenant on Civil and Political Rights: stocktaking after the first eleven sessions of the UN Human Rights Committee’, 1 HUMAN RIGHTS L.J. 136, 156 (1980).

25.

The Right to Self-Defense, Article 51 (1/2) of the UN Charter, and International Terrorism, 27 FLCH’R FOR’M of WORLD AF’RS 35, 46 (2003)

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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.

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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,

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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.

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STATEMENT OF ISSUES

The parties have placed before this Hon‟ble Court, the following Questions for its consideration: 1. ORANGIA’S FAILURE TO PREVENT MUF ACTIVITIES AGAINST LEMANIA IS IN VIOLATION OF ITS OBLIGATIONS TOWARDS LEMANIA AND THEREFORE DRONE ATTACKS BY ITS NATIONAL INTELLIGENCE AGENCY AND SUBSEQUENT USE OF FORCE BY LEMANIA WERE IN THE EXERCISE OF RIGHT OF SELFDEFENSE IN ACCORDANCE WITH THE UN CHARTER AND OTHER RELEVANT INTERNATIONAL LAW. 1.1 Orangia’s failure to prevent MUF activities against Lemania is in violation of its obligations towards Lemania. 1.2 Drone attacks and subsequent use of force by Lemania was in the exercise of right of self-defense in accordance with the UN charter and other relevant international law. 2. LEMANIA’S ACTIONS ON THE TERRITORY OF ORANGIA WERE IN ACCORDANCE WITH ITS OBLIGATIONS PERMITTED UNDER THE INTENTIONAL HUMANITARIAN LAW APPLICABLE TO SITUATIONS OF OCCUPATION AND OTHER RELEVANT INTERNATIONAL LAW AND LEMANIA CANNOT BE HELD ACCOUNTABLE FOR INTERNATIONAL HUMAN

RIGHTS

OBLIGATIONS

BEYOND

ITS

TERRITORY

AND

JURISDICTION. 2.1Lemania’s actions on the territory of Orangia were in accordance with its obligations permitted under the intentional humanitarian law applicable to situations of occupation and other relevant international law. 2.2Lemania cannot be held accountable for IHR obligations beyond its territory and jurisdiction.

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SUMMARY OF ARGUMENTS

Issue 1: Orangia’s failure to prevent MUF activities against Lemania is in violation of its obligations towards Lemania and therefore drone attacks by its national intelligence agency and subsequent use of force by Lemania were in the exercise of right of self-defense in accordance with the UN charter and other relevant international law.

The destruction to property and loss of life caused by the activities of MUF has been recognized as constituting an ‘armed attack’. Orangia has an obligation to take necessary steps to ensure that such terrorist activities do not violate the integrity and sovereignty of Lemania. The breach of such obligation, vests in Lemania, an inherent right to use force in self-defense. Lemania has the right to self-defence against an armed attack and the use of force in this regard is legitimate. Lemania’s drone attacks and subsequent resort to force in anticipatory self-defence, in responding to hostile terrorist groups (MUF) that operates across border. Issue 2 - Lemania’s actions on the territory of Orangia were in accordance with its obligations permitted under the international humanitarian law applicable to situations of occupation and other relevant international law and Lemania cannot be held accountable for international human rights obligations beyond its territory and jurisdiction. Lemania’s attacks were not indiscriminate. They were directed on valid military objective and not civilian population. Lemania’s actions are in accordance to its obligations as an occupying power, under Article 43 of Hague Convention and Article 64 of Geneva convention.IHR treaties don’t apply extra-territorially in cases of armed conflict and military occupation, in light of its object and purpose, its preparatory work, and state practice thereunder. Arguendo, IHL applies as lex specialis in cases of armed conflict and Occupation.

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ARGUMENTS ADVANCED

ISSUE I - ORANGIA’S FAILURE TO PREVENT MUF ACTIVITIES AGAINST LEMANIA IS IN VIOLATION OF ITS OBLIGATIONS TOWARDS LEMANIA AND THEREFORE DRONE ATTACKS BY ITS NATIONAL INTELLIGENCE AGENCY AND SUBSEQUENT USE OF FORCE BY LEMANIA WERE IN THE EXERCISE OF RIGHT OF SELF-DEFENSE IN ACCORDANCE WITH THE UN CHARTER AND OTHER RELEVANT INTERNATIONAL LAW.

1.1 Orangia’s failure to prevent MUF activities against Lemania is in violation of its obligations towards Lemania It is humbly submitted that Orangia had an obligation to prohibition of use of force under art. 2(4) of the U.N. Charter. 1 Further the 1970 Declaration on Principles of International Law2clearly prohibits: “first, states to indulge in wars of aggression which constitute a crime against peace for which there is responsibility under international law. Secondly, states must not threaten or use force to violate existing international frontiers (including demarcation or armistice lines) or to solve international disputes. Thirdly, states are under a duty to refrain from acts of reprisal involving the use of force. And fifthly, states must refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state and must not encourage the formation of armed bands for incursion into another state’s territory.”3 Orangia also had obligations under ICCPR and CAT against Lemania, since both the states are parties to these covenants. Further Orangia had certain anti-terror obligations under various SC resolutions inter-alia Security Council resolutions 1269 (1999)4 and 1368 (2001)5 and UNSC resolution S/RES/1373

1

U.N Charter art. 2(4) 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 3 MALCOLM N.SHAW, INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS, (6th ed., 2008) p. 1123 4 S/RES/1269 (1999) 5 S/RES/1368 (2001) 2

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(2001) 6 . These resolutions clearly mandate all states to Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, take the necessary steps to prevent the commission of terrorist acts, deny safe haven to those who finance, plan, support, or commit terrorist acts and many other obligations which were violated by Orangia when it failed to prevent MUF activities against Lemania. 1.2 Drone attacks and subsequent use of force by Lemania was in the exercise of right of self-defense in accordance with the UN charter and other relevant international law. The U.N Charter recognizes the inherent right of self-defence enjoyed by all states.7 A state must satisfy two criteria in order to engage in the acts of self-defense on the territory of another state. First, there must be an act or series of acts of sufficient gravity that they may be characterized as an armed attack.8 Second, the armed attack must have a sufficient nexus to the state upon which the act of self-defence will be carried out.9 v. Attacks of MUF constituted an armed attack against Lemania Destruction to property and loss of life has been recognized as constituting an armed attack at international law.10 The effects of an act of violence, including the reaction of the victim state and the international community are relevant in determining whether an armed attack has occurred.11 Conversely, the type of weapon or mode of attack is irrelevant in establishing a right

6

S/RES/1373 (2001) U.N. Charter art. 51; Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.United States of America), Merits, [1986], ICJ Reports, 14 ¶195 [Herein after reffered as Nicaragua case; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J Rep 226 ¶ 38 [Hereinafter the Nuclear Weapons Case]. 8 Case concerning United states diplomatic and consular staff in Tehran (Iran v. United States of America), [1980] I.C.J Rep 3 ¶57 [Hostages]; YORAM DINESTEIN, WAR, AGGRESSION AND SELF DEFENSE,NEW YORK: CAMBRIDGE UNIVERSITY PRESS (3rd ed, 2000) at 176. 9 Case Concerning Armed Activities On The Territory Of Congo (Congo V. Uganda) (2006), 45 I.L.M. 271 ¶146 [Hereinafter referred as DRC v Uganda]; BRUNO SIMMA, ED. THE CHARTER OF THE UNITED NATIONS: A COMMENTARY, NEW YORK: CAMBRIDGE UNIVERSITY PRESS (2nded, 2002) 82. 10 Annual Report of the Inter-American Commission on Human Rights: 1997, OEA/Ser.L/II.28/Doc.7 271. 11 D Murphy, “ Terrorism and the concept of Armed Attack in article 51 of the U.N Charter” [2002] 43 Harv Int L.J 41 at 47-51 7

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of self-defence.12 Any carefully planned, coordinated and executed attack against a quintessential objective notwithstanding the small number of attackers involved and the short time frame of fighting qualify to be armed conflict. Viewed in this light, the attacks perpetrated by MUF are not sporadic instances of violence but an organized and sustained campaign on forcible measures. States regard such operations as armed attacks.13 On 23 January, four tourists from Lemania were alleged to have been abducted by members of MUF, from the province of Westoria (in Orangia), and also threatened the state of Lemania. Subsequently, two bomb explosions took place in the city of Niroba in Lemania.14 It is submitted that MUF’s threat to disrupt oil pipelines of Lemania also amounts to threat to use of force. MUF is believed to perpetrate numerous acts of Terror in the territory of Lemania.15 In the present instance, the requirement of a ‘protracted armed violence’16 is evidenced by the seriousness and escalation of MUF’s attacks against Lemania17, by which it assumes the dimension of an armed attack. vi. The attack by MUF can be attributed to Orangia Article 51 of the UN Charter does not require that an armed attack be perpetrated by a State in order to justify an act of self-defence on the territory of another State.18 State actors have an inherent right to use force in self-defense against non-State actors.19 This is logical, given the serious threat posed by non-state actors.20 “It is clear that where another “State…provides bases

12

Nuclear Weapons Case; SC Res; 1368 (2001). UN SCOR. 2001, UN Doc. S/INF/57, 71. MICHAEL N. SCHMITT, RESPONDING TO TRANSNATIONAL TERRORISM UNDER THE JUS AD BELLUM, in INTERNATIONAL LAW AND ARMED CONFLICT: EXPLORING THE FAULTLINES 175 (2007); The Right to Self-Defense, Article 51 (1/2) of the UN Charter, and International Terrorism, 27 FLCH’R FOR’M of WORLD AF’RS 35, 46 (2003); 14 Fact Sheet ¶ 10 15 Fact Sheet ¶13, 14, 18. 16 Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal) (ICTY, IT-941-AR72, 2 October 1995) ¶70 17 Fact sheet, ¶ 6,7 and 10; Prosecutor v Boškoski (ICTY, IT-04-82-T, 10 July 2008) [177] 18 DRC v Congo, at 358 ¶28 (Kooijmans .J separate opinion) 19 Bothe, Terrorism and the Legality of Pre-Emptive Force, 14 EJIL 227 (2003); 20 ,Nicaragua Case ¶ 29-31; Sean D Murphy, “Self-Defence and the Israeli Wall Advisory Opinion: An Ipse Dixit From the ICJ?” (2005) 99 A.J.I.L., 62; Ruth Wedgwood, “Responding to Terrorism: The Strikes against bin Laden” (1994) 24 Yale J. Int’l L. 559 at 564-65. 13

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or refuge for the attackers, the State under attack, or threat of attack, may use armed force against that other State in exercise of right of self-defence.”21 It is further submitted, every state is liable under international law for the terrorists attacks carried on in their states that are contrary to the rights of another state.22 When the State does not take the necessary steps to ensure that such terrorist activities do not violate the integrity and sovereignty of another State, it amounts to a breach of international obligation.23 In this regard it is submitted that the inaction of Orangia in taking adequate measures to curtail the disruptive activities of MUF, amounts to breach of its international obligations. Thus the inability of Orangia to prevent MUF activities, establishes the necessary nexus to justify Lemania’s act of self-defence on Orangia’s Territory. vii. Lemania’s attack on Orangia was a lawful act of self-defence under the U.N.Charter and customary international law Article 2(4) of the UN Charter24 imposes upon every State an obligation to refrain from the use of force against any other State25 and the only exception to the same is Article 51 of the UN

21

Position Paper of Australian Section of International Commission of Jurists on the Appropriate Response of the UN to the Attacks on the USA available at http://www.ejil.org/forum WTC/messages/ 17.html, last visited 30 Jan, 2016. 22 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) [Hereinafter referred as Draft Articles]. Corfu Channel (U.K v. Alb.), 1949 I.C.J 4; Nicaragua Case 23 GC art. 2. 24 U.N. Charter, art 2(4); J.P. COT & A PELLET, LA CHARTE DES NATIONS UNIES (2nd ed.)(1991); B. SIMMA, THE CHARTER OF THE UNITED NATIONS (2nd ed.) (2002); RUSSEL AND MUTHER, A HISTORY OF THE UNITED NATIONS CHARTER (1958); GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES (2004); STRUCHLER, THE THREAT OF FORCE IN INTERNATIONAL LAW (2007) as cited in IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, (7th ed.) (2008). 25 Id., Skubiszewski, ‘Use of Force’, 745, and L. HENKIN, R.C. PUGH, O SCHNATER & H. SMIT, INTERNATIONAL LAW CASES AND MATERIALS, 893 (3rd ed.) (1993) as cited in MALCOLM N.SHAW, INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS, (6th ed., 2008) 4

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Charter.26 Under this Article, every State has the right to self-defence against an armed attack and the use of force in this regard is legitimate.27 It is submitted that the actions taken in self-defence must meet the customary legal requirements of necessity and proportionality. 28 The necessity requirement often runs on the existence of alternative means of meeting the threat posed by an armed attack 29 and the period of time between the armed attack and the act of self-defence.30 To be considered proportional, a response must be limited to what is sufficient to secure the defender’s rights and ensure its security, including the restoration of security in the wake of armed attacks. 31 An evaluation of proportionality analyses the reasonableness of an act of self-defence.32 Lemania’s act of self-defence meets the requirement of necessity and proportionality. Before resorting to force, Lemania issued several warnings to Orangia, directing them to prevent the disruptive activities of MUF. Therefore, Lemania was faced with an ongoing and imminent threat, and a recalcitrant neighbour flouting its international obligations, compelled Lemania to take the necessary steps to neutralize the threat posed by MUF by resorting to the alleged use of force. viii.

Lemania’s use of drones is in anticipatory self-defense of further acts of terror

The pre-emptive military action describes military action that is taken against a threat which has not yet materialized and which is uncertain and remote in time. A state may ‘anticipate’ self26

U.N. Charter art. 51. Id.; BOWETT, SELF DEFENCE, AND IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, SEVENTH EDITION, ‘USE OF FORCE’, Chapter 13, (2008); I. Brownlie, The Use Of Force In Self Defence, 37 B.Y.I.L., 183 (1961); Alexandrov, Self-Defence Against the Use of Force in International Law, The Hague, 1996; S. Schwebel, Aggression, Intervention and Self-Defence in Modern International Law, 136 HR, 411 (1972); O. Schacter, The Right of States to Use Armed Force, 82 Michigan Law Review, 1984, p. 1620; Schacter, Self-Defence and Rule of Law, 83 A.J.I.L, 259 (1989) as cited in MALCOLM N.SHAW, INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS, (6th ed., 2008) 28 Nuclear Weapons case 29 YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE, CAMBRIDGE UNIVERSITY PRESS, (3rd ed., 2000) at 176. 30 Nicaragua case; MYRES M. MCDOUGAL & FLORENTINO P. FELICANO, THE INTERNATIONAL LAW OF WAR: TRANSNATIONAL COERCION AND WORLD PUBLIC ORDER (1994) at 222-24. 31 Nicaragua Case 32 YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT (2nd ed. 2004) 27

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defence in the sense described by Sir Humphrey Waldock: ‘where there is convincing evidence not merely of threats and potential danger but of an attack actually being mounted, then an armed attack may be said to have begun to occur, though it has not passed the frontier.’ 33 International law allows a state to resort to force in anticipatory self-defence, in responding hostile terrorist groups that operate across state borders.34 The use of anticipatory self-defense against such actors relies on the presence of a ‘distinct quantifiable threat’.35 There are many instances where states have well used their inherent power to defend themselves on the basis of anticipation. In this regard, the cases of six day war of 1967 in the Middle East,36 the Osirak Reactor Case of 1981 which was related to the Israeli bombing of nuclear reactors of Iraq, 37 and Operation Iraqi Freedom by United States of America in 2003, are worth mentioning. MUF is alleged to have consistently perpetrate acts of terrorism against Lemania, and therefore the use of drones to target specific members of MUF in the province of Westoria is justified as an act of anticipatory self-defence. Issue 2 - Lemania’s actions on the territory of Orangia were in accordance with its obligations permitted under the IHL applicable to situations of occupation and other relevant international law and Lemania cannot be held accountable for IHR obligations beyond its territory and jurisdiction.

2.1 Lemania’s actions on the territory of Orangia were in accordance with its obligations permitted under the IHL applicable to situations of occupation and other relevant international law E. Lemania’s attack was not indiscriminate

33

C.H.M Waldock, The Regulation of the Use of Force by Individual States in International Law, 81 H AGUE R ECUEIL 451, 498. 34 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) 35 Judith Gardam, ‘A role for Proportionality in the war on Terror’ (2005) 74 Nordic Journal of international law 3, 11 36 PHILLIP, INTERNATIONAL LAW (1999), at 1241-42. 37 0 ILM 996 (July 1981) (excerpts of Security Council Debate). 6

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The principle codified in article 51.5(b) and 57.2 (a) (iii) of Additional Protocol I and undeniably as aspect of customary international law, prohibits as indiscriminate “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or combination therefore, which would be excessive in relation to the concrete and direct military advantage anticipated”. 38 But people and property that constitute military objective may be attacked and destroyed. 39 It is submitted that, Lemania’s drone attacks and use of force are justified in their exercise of right of self-defense, mandating immediate response to neutralize the threat posed by MUF and Orangia, and are not excessive to the overall military advantage anticipated. F. The attack was on valid Military objective Military objective as defined in Protocol I40, is part of customary international law for armed conflict whether on land, at sea or in the air,41 and is also binding on the non-parties to the Protocol. 42 The legitimate military objective must meet the two stage test: firstly, its nature, location, purpose or use makes it an effective contribution to military action; and secondly, it’s total or partial destruction, capture or neutralization, in the ongoing circumstances, offers a definite military advantage. 43 It is submitted that the targets of Lemania’s air strikes were

38

Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S 609 Arts. 51, 57. [Hereinafter referred as AP I]; JEAN MARIE HENCKAERTS AND DOSWALD- BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW Vol. I (Cambridge, Cambridge University Press, 2005) at Chap 3 and 20. 39 AP I, art. 52 40 AP I, art 52(1) 41 Y Dinstein, “Legitimate military objectives under the current Jus in Bello” in colloquium: legal and ethical lessons of Nato’s Kosovo Campaign” Aug. 8-10, 2001 p 1 42 W.J Fenrick, “The law applicable to targeting and proportionality after operation allied force: a view from outside” [2002] 3 YIHL 53; Y Dinstein, “Comment on Protocol I” [1997] 37 IRRC 515; C. GREENWOOD, CUSTOMARY INTERNATIONAL LAW AND THE FIRST GENEVA PROTOCOL OF 1997 IN THE GULF CONFLICT, LONDON: SWEET & MAXWELL. (1993) at 75, 88; 43 Y. SANDOZ, C. SWINARSKI AND B. ZIMMERMANN COMMENTARY ON THE ADDITIONAL PROTOCOLS OF JUNE 1977 TO THE GENEVA CONVENTION OF 12 AUGUST 1949 (ICRC: Martinus Nijholff. Geneva. 1987) ¶ 2018 [ICRC Commentary] 7

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predominantly on military bases of Orangia and therefore such attacks were directed against legitimate military objective.44 G. The object of the attack was a military objective and not civilian population The prohibition of attacks against civilian population or civilians does not prohibit civilian casualties absolutely. Civilian death in an attacks aimed at legitimate objectives may cause collateral civilian damage.45 Moreover the said actions of Lemania were act of self-defense and not retribution by way of indiscriminate attack. The air strikes and attacks were aimed at military objectives and not civilians. Any such loss of civilian life is a collateral damage which resulted in pursuance of legitimate military objective. H. Lemania’s actions are in accordance to its obligations as an occupying power Article 43 of The Hague Regulations46 and Article 64 of the Fourth Geneva Convention47, are the key provisions delimiting the rights and duties of an occupying power. 48 Article 43 of THR should be interpreted broadly to allow the occupying power to fulfill its duties under occupation law, in particular the administration of the occupied territory for the benefit of the local population, while ensuring the security of its own armed forces.49 The occupying authority is empowered to enact suitable legislations to that effect.50 Therefore the orders promulgated by Lemania on 1 November 2013, were in accordance to its obligations under the international humanitarian law applicable to situations of occupation, to maintain law and order in Orangia. It is also submitted that the occupant Power’s position is that of an interim military administration, which entitles it to obedience from the inhabitants so far as concerns the maintenance of public order, the safety of the occupying forces, and such laws or regulations as

44

Fact sheet, ¶ 11, 12,16. R Normand and C.A F Jochnick, “The Legitimization of violence: a critical analysis of the gulf war’ [1994] 35 Harv. ILJ 2, 11. 46 Hague Regulations art. 43 47 GC IV art. 64 48 M. Sassolì, “Legislation and maintenance of public order and civil life by occupying powers,” European Journal of International Law, Vol. 16, No. 4, 2005, pp. 661-694 49 Tristan Ferraro, Report on Occupation and other forms of Administration of foreign Territory, International Committee of the Red Cross(ICRC) 2012 50 Id. 45

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are necessary to administer the territory. 51 Thus the citizens of Orangia had an obligation to adhere to the orders of the Interim Authority, established by Lemania. 2.2 LEMANIA CANNOT BE HELD ACCOUNTABLE FOR IHR OBLIGATIONS BEYOND ITS TERRITORY AND JURISDICTION

It is clear that both; Lemania and Orangia are parties to the CAT and ICCPR. Thus both these treaties count for the IHRL obligations of Lemania and Orangia in their domestic jurisdictions. Therefore, it is humbly submitted that Lemania cannot be held accountable for IHR obligations beyond its territory and jurisdiction. B. IHR treaties don’t apply extra-territorially in cases of armed conflict and military occupation It is submitted that the relevant criteria for ascertaining scope of application of ICCPR and CAT, especially in situations of armed conflict must begin with the ordinary meaning of each instrument in its context and in light of its object and purpose, its preparatory work, and state practice thereunder—in short the standard tools of treaty interpretation (which are also a part of CIL) as set forth in the Vienna Convention on the Law of Treaties.52 iv.

The Ordinary Meaning of the Instruments

Art. 2(1) of ICCPR states that “each State Party to ICCPR undertakes to respect and to ensure to ‘all individuals within its territory and subject to its jurisdiction’ the rights recognized in the present Covenant”.53 Hence, based on the plain and ordinary meaning of its text, this article establishes, in the conjunctive, that a state party is required to ensure the rights in the Covenant only to individuals who are both within the territory of a state party and subject to its sovereign authority.

I.A SHEARER, STARKE’S INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS 1994) REPRINT. (11th ed. 2013) p. 510 52 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, arts. 31-32, 1155 U.N.T.S. 331. 53 ICCPR Art. 2(1) 51

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Further, several commentators endorse a literal territorial reading of Article 2(1) of the ICCPR,54 and further argue that Covenant obligations apply, in the context of armed conflict, only with respect to acts of a state’s armed forces executed within that territory.55 The early views of the Committee on Human Rights also support the position that the provisions of the Covenant do not apply extraterritorially in situations of armed conflict and military occupation. In two of the cases56, involving exceptional instances where Uruguayan state agents abducted citizens living abroad into Uruguayan territory, committee member Christian Tomuschat observed in identical opinions that"[t]he formula [within its territory] was intended to take care of objective difficulties which might impede the implementation of the Covenant in specific situations, “citing inability to ensure the enjoyment of Covenant rights by a state's citizens abroad. He specifically cited occupation of foreign territory as "another example of situations which the drafters of the Covenant had in mind when they confined the obligation of States parties to their own territory.” Further, more recently, the Committee in its General Comment No. 31 (May 2004), abandoned the literal reading altogether. This has been criticized on the grounds that the Committee does not explain why it interpreted the “and” in Article 2(1) into an “or”. 57 Several commentators 58 , including Nowak in his commentary on the ICCPR, disagree with “the grammatical (re)interpretation done in General Comment No. 31 in the sense of a “disjunctive conjunction” ….. fails, however, to convince because ….. States are not responsible for all violations of the Covenant on their territory (e.g., by insurgents, by occupation forces, etc.). The correct interpretation, which is oriented on the purpose of the Covenant in light of its historical

54

Egon Schwelb, Some Aspects of the International Covenants on Human Rights of December 1966, in INTERNATIONAL PROTECTION OF HUMAN RIGHTS 103, 109 (Asbjørn Eide & August Schou eds., 1968); Manfred Nowak, The Effectiveness of the International Covenant on Civil and Political Rights—Stocktaking After the First Eleven Sessions of the UN-Human Rights Committee, 1 HUM. RTS. L.J. (1980).136, 156 55 MICHAEL BOTHE, KARL JOSEF PARTSCH, & WALDEMAR A. SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS (1982) p. 635; Schindler, supra note 10, at 939. 56 Lopez Burgos v.Uruguay and Celiberti v. Uruguay 57 Michal j. Dennis ‘Non- Application of Civil and Political Rights Treatie extraterritorially during times of international armed conflicts’ 58 SARAH JOSEPH, JENNY SCHULTZ, & MELISSA CASTAN, THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 88–91 (2nd ed. 2004). 10

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background, was convincingly presented by Tomuschat in individual opinions in López Burgos v. Uruguay, No. 52/1979, and Celiberti v. Uruguay, No. 56/1979. . . .”59 It is further contended that, strictly speaking, the international human rights treaty bodies lack authority to issue binding legal interpretations. Thus, only the parties to a treaty are empowered to give a binding interpretation of its provisions unless the treaty expressly provides otherwise or the parties have otherwise so agreed. 60 The international human rights treaties do not so provide. 61 Additionally, the International Court of Justice does not automatically have jurisdiction to issue binding interpretations of human rights treaties.62 It is also submitted that it is not without significance that the ICJ’s advisory opinion in the Wall case63, in concluding that the provisions of the ICCPR applied extraterritorially in the West Bank and Gaza, did not cite General Comment No. 31 in its opinion. In contrast to the Human Rights Committee’s cause-and-effect theory of application,

64

the ICJ

concluded that the ICCPR “is applicable in respect of acts done by a State in the exercise of its jurisdiction.”65 Indeed, the Court’s specific holding concerning the ICCPR was founded on Art. 12(1), which contains an express territorial limitation: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement.”66 Thus, arguably the most logical reading of the Court’s advisory opinion is that it was based only on the view that the West Bank and Gaza were part of the “territory” of Israel for purposes of the application of the Covenant, since the territories occupied by Israel have for over 37 years been subject to its territorial

59

MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS, CCPR COMMENTARY 762 (2005). pp. 43, 78 60 Cf. Majorie M. Whiteman, 14 DIGEST INT’L L. 361 (1970)(quoting Research in International Law (Harvard Law School), Draft Convention on the Law of Treaties, Art. 19, Comment, 29 AM. J. INT’L. SUPP. 937, 975-76 (1935). 61 Michal j. Dennis ‘Non- Application of Civil and Political Rights Treatise extraterritorially during times of international armed conflicts’,Vol. 99 of Am. J. Int’l L. p. 458 62 Michal j. Dennis ‘Non- Application of Civil and Political Rights Treaties extraterritorially during times of international armed conflicts’ p. 459-460 63 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion, 9 July 2004[Hereinafter referred as Construction of the Wall Case] 64 UN Doc. CCPR/CO/78/ISR (Aug. 21, 2003), ¶ 11 65 Construction of the Wall case,¶ 111. 66 Construction of the Wall case, ¶134. 11

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jurisdiction as the occupying Power. 67 The same was the finding of the HRC (in its concluding observations concerning Israel)68 which was cited in the opinion of the court.69 The same is supported by Dennis’ criticism that “the ICJ’s conclusion (…) appears to have been based upon the unusual circumstances of Israel’s prolonged occupation. It therefore remains unclear whether the opinion should be read as generally endorsing the view that the obligations assumed by States under international human rights instruments apply extraterritorially during situations of armed conflict and military occupation.”70 Also, the Congo judgment offers little guidance as to what constitutes an act “done by a state in the exercise of its jurisdiction” outside of the context of military occupation, since the Court refrained from making specific findings of fact in that regard. 71 Further since the Congo judgment is completely based on the reliance upon the Wall case, which as afore-mentioned points out that human rights obligations do not apply extraterritorially (in a narrow sense). The positions of both the Human Rights Committee and the ICJ concerning the scope of application of the ICCPR appear to be at odds with the approach taken by the European Court of Human Rights concerning Article 1 of the ECHR. 72 In Banković v. Belgium 73 , the Grand Chamber of the European Court of Human Rights held that “Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.”74 The Court concluded that had the drafters of the Convention wished to ensure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous Articles 1 of the four Geneva Conventions of 1949.75 Even more recently, in Al-Skeini & Others v. Secretary of State for Defence, which involved several killings by British occupation forces in Iraq, the British Lords of Appeal concluded that

67

Id. ¶ 112 ¶10, UN Doc. CCPR/C/79/Add.93 (1998) 69 Construction of the Wall case, ¶110. 70 M.J. Dennis, p. 122. 71 DRC V Congo 72 Michal J. Dennis ‘Non- Application of Civil and Political Rights Treaties extraterritorially during times of international armed conflicts’ p. 467 73 Banković v. Belgium, 2001–XII Eur. Ct. H.R. 333 (GC) 74 Id. ¶37. 75 Id. ¶75. 68

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Iraq was not part of the European espace juridique for purposes of the ECHR.76 The Court took the position that the broad dicta of Issa “should not be read as detracting in any way from the clear—and clearly restrictive—approach to article 1 jurisdiction adopted in Banković.” 77 The British Lords also rejected the relevance of the reasoning utilized by the Human Rights committee in López Burgos and Celiberti and cited with approval the individual opinions of Committee member Christian Tomuschat (as discussed above).78 v.

The Preparatory Work

The Vienna Convention on the Law of Treaties provides in Art. 32 that recourse may be had to the preparatory work of the treaty “in order to confirm the meaning resulting from the application of Art. 31” of the Convention or to determine the meaning when the interpretation under Art. 31 leaves the meaning “ambiguous or obscure.” Thus, it is humbly submitted that the travaux préparatoires cited by the ICJ in the Wall case79 actually establishes that the reference to “within its territory” was included in Article 2(1) of the Covenant in part to make clear that states were not obligated to ensure the rights therein in territories under military occupation. Thus it becomes clear that a state’s obligations under the Convention only apply within its territory and subject to its jurisdiction, a phrase which should not be read disjunctively.80 Further, during the drafting of the ICCPR, it was the United States delegation that added the words “territory and subject to its” before “jurisdiction” in Article 2(1) by way of an amendment to the draft text of Article 2 of the ICCPR (1950) then under consideration by the Commission on Human Rights. 81 Other delegations—primarily aimed at confirming that States retain

76

Al-Skeini v. Sec. of State for Defence [2007] UKHL 26, [2007] 3 All E.R. 865 Id. ¶131 78 Id. ¶74 79 Construction of the Wall case, ¶109. 80 M.J. Dennis, ‘Application of human rights treaties extraterritorially in times of armed conflict and military occupation’, 99 AM. J. INT’L L. 119, 122-127 (2005); M. Nowak, ‘The effectiveness of the International Covenant on Civil and Political Rights: stocktaking after the first eleven sessions of the UN Human Rights Committee’, 1 HUMAN RIGHTS L.J. 136, 156 (1980). 81 UN Doc. E/CN.4/365, at 14 (1950); NOWAK, pp. 30–34. 77

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obligations to guarantee the Covenant’s rights to their own citizens abroad— unsuccessfully opposed the proposed amendment.82 vi.

Subsequent State Practice

There is no indication of any subsequent practice whereby state parties have interpreted the ICCPR as applicable to their military operations, whether unilateral, alliance-based or United Nations mandated, outside their territory.83 Additionally, some states (especially U.S. 84 and Netherlands85) have specifically informed the Human Rights Committee during its review of state party reports that the provisions of the ICCPR do not have an extraterritorial application. Thus the territorial limitation in Article 2, far from being inconsistent with the object and purpose of the treaty, reflects the clear and expressed intention of those countries that negotiated the instrument. C. Arguendo, IHL applies as lex specialis in cases of armed conflict and Occupation It is humbly submitted that the best reading of the interrelationship between the IHR instruments and IHL, is the more traditional view that IHL should be applied as the lex specialis, if it is assumed that human rights instruments apply extraterritorially during periods of armed conflict and military occupation. At several times states (inter-alia U.S.86 and U.K. 87) have maintained both that the obligations assumed under a particular instrument do not apply outside their territory and that in any event

82

UN Doc. E/CN.4/SR.194, at 11 (1950). Michael J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AMERICAN JOURNAL OF INTERNATIONAL LAW 119, 123–24 (2005) 83 Michal J. Dennis ‘Non- Application of Civil and Political Rights Treaties extraterritorially during times of international armed conflicts’ p. 477 84 Statement of Conrad Harper, Legal Adviser, Department of State, ¶ 20, UN Doc. CCPR/C/SR.1405 (1995). : U.S. DEP’T OF STATE, UNITED STATES SECOND AND THIRD PERIODIC REPORT CONCERNING THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (2005) 85 Concluding Observations of the Human Rights Committee: Netherlands, ¶ 27, UN Doc. CCPR/CO/72/NET (Aug. 27, 2001). 86 Statement of John B. Bellinger, III, Legal Adviser, U.S. Department of State, May 5, 2005, available at http://www.usmission.ch/Press2006/0505BellingerOpenCAT.html 87 Conclusions and Recommendations of the Committee Against Torture: United Kingdom, ¶ 4 (b),UN Doc. CAT/C/CR/33/3 (Dec. 10, 2004). 14

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the lex specialis of humanitarian law suspends the extraterritorial application of the instrument during periods of armed conflict and military occupation. During the drafting of the CAT, the United States had similarly expressed its understanding that “that the convention was never intended to apply to armed conflicts and thus supersede the 1949 Geneva Conventions on humanitarian law in armed conflicts and the 1977 Protocols additional thereto.”88 The United States emphasized that having the Convention apply to armed conflicts “would result in an overlap of the different treaties which would undermine the objective of eradicating torture.”89 No delegation contradicted the U.S. statement and several supported the position including Switzerland90, Norway91, and Israel.92 In its earlier advisory opinion in the Nuclear Weapons case, the Court stated that the “most directly relevant applicable law…is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities” and further noted that whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant [ICCPR], can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.93 The ICJ’s subsequent opinions in the Wall94 case and DRC v. Uganda95 also appear to recognize that the lex specialis of international humanitarian law may exclude the general application of certain provisions of human rights instruments during periods of armed conflict and military occupation. In the ongoing International Law Commission (ILC) study on the effects of armed conflicts on treaties, a number of states in the Sixth Committee of the General Assembly, as well as individual members of the ILC, have supported inclusion of a provision based upon the principle stated by the ICJ in the Nuclear Weapons case. 88

CHR, Report of the Working Group on a Draft Convention Against Torture, ¶ 5, UN Doc. E/CN.4/1984/72 (Mar. 9, 1984). 89 Id. 90 UN Doc. A/39/499, at 14 (Oct. 2, 1984) 91 Id. 92 J. HERMAN BERGERS & HAN DANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE (1988) p.106 93 Nuclear Weapons case,¶ 25, 34. 94 Construction of the Wall case, ¶106 95 DRC v. Uganda, ¶216 15

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PRAYER

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

(a) Lemania use of force was in the exercise of its right to self-defense, in accordance with the U.N Charter. (b) Lemania did not violate its obligations under the Internal Humanitarian Law. Thus, Orangia cannot ask for compensation.

(c) Lemania cannot be held accountable for IHR obligations beyond its territory and jurisdiction. 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 LEMANIA Place: The Hague, The Netherlands

xv