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ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

THE OFFICE OF PUBLIC COUNSEL FOR VICTIMS

Team Number: 25
Year: 2015-16
Total Word Count: 9804

Original: English

Date: 21 February 2016

THE APPEALS CHAMBER

SITUATION IN PORVOS

Decision on Jurisdiction and Motion to Disqualify one of the Pre-Trial Chamber Judges

VICTIMS LEGAL REPRESENTATIVE

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ 3
LIST OF ABBREVIATIONS........................................................................................................... 4
INDEX OF AUTHORITIES ............................................................................................................. 6
Cases ...................................................................................................................................... 6
Articles ................................................................................................................................... 8
Books ................................................................................................................................... 10
Treaties and Conventions ..................................................................................................... 11
Miscellaneous ...................................................................................................................... 12
STATEMENT OF FACTS ............................................................................................................ 14
ISSUES RAISED ......................................................................................................................... 16
SUMMARY OF ARGUMENTS ..................................................................................................... 17
WRITTEN ARGUMENTS ........................................................................................................... 19
I.

OSTYS RECRUITMENT AND USE OF JUVENILE PIRATES CONSTITUTE

CRIMES AGAINST HUMANITY UNDER ART.7, ICC STATUTE.. ......................... 19


[A]

ATTACKS ON PORVOSIAN-FLAGGED VESSELS IN THE HIGH SEAS QUALIFY AS

ATTACKS AGAINST A CIVILIAN POPULATION IN THE TERRITORY OF PORVOS ............... 19

i.

OSTYs recruitment and use of juvenile pirates constitute such attacks ............. 19

ii.

The attacks occurred on Porvosian territory ....................................................... 22

[B]

THE CONSENT OF THE JUVENILES PARENTS DOES NOT PRECLUDE THE CRIME

OF ENSLAVEMENT ............................................................................................................ 23

[C]

ART.7S IMPLICIT NUMEROSITY REQUIREMENT HAS BEEN SATISFIED ............ 25

[D]

OSTY IS AN ENTITY THAT IS CAPABLE OF COMMITTING CRIMES AGAINST

HUMANITY ........................................................................................................................ 26

II. OSTYS CROSS-BORDER CONTAMINATION OF PORVOS WATER


SUPPLY CONSTITUTES A WAR CRIME UNDER ART.8(2)(b)(iv) OF THE ICC
STATUTE ........................................................................................................................... 28
[A]

THE CONDUCT IN QUESTION OCCURRED ON PORVOSIAN TERRITORY ............... 28

[B]

THE CONTAMINATION TOOK PLACE IN THE COURSE OF AND IN FURTHERANCE

OF AN INTERNATIONAL ARMED CONFLICT ................................................................... 30

i.

OSTY can be considered a state........................................................................... 30


3

ii.
[C]

OSTYs actions can be attributed to Yunkel ........................................................ 31


THE DAMAGE CAUSED BY THE CONTAMINATION IS WIDESPREAD, LONG-TERM

AND SEVERE ..................................................................................................................... 33

[D]

THE DAMAGE WAS EXCESSIVE IN RELATION TO THE CONCRETE MILITARY

ADVANTAGE ANTICIPATED .............................................................................................. 35

i.

OSTYs actions violate fundamental principles of humanitarian law ................. 35

ii.

The military advantage anticipated by OSTY is not significant enough .............. 37

III. JUDGE HASTY SHOULD NOT BE DISQUALIFIED UNDER ART.41 OF THE


ICC STATUTE .................................................................................................................. 38
[A]

YUNKEL HAS NO LOCUS STANDI TO SEEK SUCH DISQUALIFICATION. ................. 38

[B]

THE STANDARD OF BIAS UNDER ART.41, ICC STATUTE IS NOT MET ................. 39

CONCLUDING SUBMISSIONS .................................................................................................... 41

LIST OF ABBREVIATIONS

Paragraph

Multiple paragraphs

Art.

Article

Doc.

Document

ECHR

European Commission on Human Rights

Ed.

Editor

Eds.

Editors

ENMOD

Convention on the Prohibition of Military or Any Other Hostile


Use of Environmental Modification Techniques

et al

And others

EU

European Union

FARC

The Revolutionary Armed Forces of Colombia

ICC Statute

Rome Statute of the International Criminal Court

ICJ

International Court of Justice

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the former Yugoslavia

Id

Ibidem

ILC

International Law Commission

ILSA

International Law Students Association

NATO

North-Atlantic Treaty Organization

OSTY

Olmic State of Tyvosh and Yunkel

OTP

Office of the Prosecutor

PCIJ

Permanent Court of International Justice

SCSL

Special Court on Sierra Leone

UN

United Nations

UNTS

United Nations Treaty Series

UNEP

United Nations Environment Programme

UNICEF

United Nations Children's Emergency Fund

UNODC

United Nations Office of Drugs and Crime

UNSC

United Nations Security Council

INDEX OF AUTHORITIES
CASES
INTERNATIONAL CRIMINAL COURT
1. Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case
No. ICC-02/05-03/09, Decision on Disqualification of a Judge (2012)...39, 40
2. Prosecutor v. Bashir, Case No. ICC-02/05-01/09, Decision on the Warrant of Arrest
(2009).......25, 26
3. Prosecutor v. Bashir, Case No.ICC-02/05-01/09, Judgment on the Appeal against the
Decision on the Warrant of Arrest (2010)25, 33
4. Prosecutor v. Bashir, ICC-02/05-01/09-76, Decision on the Request for excusal of a Judge
(2010).39
5. Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision on the Charges (2009)26, 27
6. Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07, Decision on the Confirmation of
the Charges (2008)....25, 26, 27, 29
7. Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07, Decision on Disqualification of
Judge Christine Van den Wyngaert (2008).39
8. Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-262, Decision on the
Evidence and Information Provided for the Issuance of a Warrant of Arrest (2007)...29
9. Prosecutor v. Muthauru et al, Case No. ICC-01/09-02/11 OA 4, Decision on the appeal
against the decision of Pre-Trial Chamber II of 23 January 2012 (2012).27
10. Prosecutor v. Ruto et al, Case No. ICC-01/09-01/11 OA3 OA4, Decision on the appeal
against the decision of Pre-Trial Chamber II of 23 January 2012 (2012).27
11. Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on
Disqualification of Judge Sang-Hyun Song (2013).39
12. Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06, Judgement (2012)....22, 24
13. Situation in Democratic Republic of Congo, Case No.ICC-01/04, Judgment on Prosecutors
Application for Extraordinary Review (2006)....29
14. Situation in the Republic of Cote dIvoire, Case No.ICC-02/11-14, Decision on the
Authorization of an Investigation (2011)...25, 27, 29
15. Situation in the Republic of Kenya, Case No. ICC-01/09-19-Corr, Decision on the
Authorization of an Investigation (2010).25, 26, 27, 29, 33

16. Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and
the Kingdom of Cambodia, Case No. ICC-01/13, Decision on the request of the Union of
the Comoros to review Prosecutors decision not to initiate an investigation (2015)21
INTERNATIONAL COURT OF JUSTICE
1. Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium) ICJ Rep. 2002
[Joint Separate Opinion of Judges Higgins, Buergenthal and Kooijmans]..22
2. Corfu Channel (United Kingdom v Albania), Merits, ICJ Rep 4 (1949).32
3. United States Diplomatic and Consular Staff in Tehran (Hostages) (United States v. Iran),
ICJ Rep. 3 (1980)32
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
1. Prosecutor v. Blaskic, Case No. IT-95-14-T (ICTY), Judgement (2000)..21
2. Prosecutor v. Dragan Nikolic, Case No. IT-94-2 (ICTY), Indictment (1994)..21
3. Prosecutor v. Kordic, Case No. IT-95-14/2-T (ICTY), Judgement (2001)....21
4. Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T (ICTY), Judgment
(2001)....19
5. Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-I (ICTY), Indictment (1997).21
6. Prosecutor v. Perii, Case No. IT-04-81 (ICTY), Trial Judgement (2013)..26
7. Prosecutor v. Simi et al, Case No. IT-95-9-T (ICTY), Trial Judgement (2003).26
8. Prosecutor v. Staki, Case No. IT-97-24 (ICTY), Trial Judgement (2003) .....................26
9. Prosecutor v. Tadi, Case No. IT-94-1-T (ICTY), Judgement (1997) .............................27
10. Prosecutor v. Tadi, Case No.IT-94-1 (ICTY), Decision on the Defence Motion on
Jurisdiction (1999). ...........................................................................................................30
11. Prosecutor v. Tadi, Case No.IT-94-1-A (ICTY), Appeals Chamber Judgement (1999)
..........................................................................................................................................31
12. Prosecutor v. Vasiljevi, Case No. IT-98-32 (ICTY), Trial Judgement (2002). ..............26
13. Prosecutor v. Zejnil Delalic, Case No. IT-96-21-T (ICTY), Judgement (1998) ..............21
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
1. Prosecutor v. Akayesu, Case. No. ICTR-96-4-T (ICTR) (1998). ......................................19
SPECIAL COURT FOR SIERRA LEONE
1. Prosecutor v. Fofana, Case No. SCSL-04-14-T-796, Trial Chamber Judgment (SCSL)
(2007). ................................................................................................................................24
OTHERS
1. Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, 30 ILM 577 (1990)32
7

2. Director of Public Prosecutions v. Doot UKHL [1973] 1 All ER 940 [U.K. House of
Lords]. ................................................................................................................................22
3. Ford v. United States, 273 US 593 (1927) [U.S. Supreme Court]. ...................................22
4. GVK Inds. Ltd & Anr v. The Income Tax Officer & Anr. (2011) 4 SCC 36 [Indian Supreme
Court]. ................................................................................................................................22
2. The Case of the S.S. Lotus (Turkey v. France) 1927 PCIJ Ser. A No. 10.22
5. W, X, Y & Z v. The United Kingdom, Appl. No. 3435-3438/67 (ECHR) (1968). .............24
6. Wood pulp, Osakeyhti and ors. v. Commission of the European Communities ECR 5193
ILEC 035 (1988). ...............................................................................................................22
ARTICLES
1. A. Coleman, The Islamic State and International Law: An Ideological Rollercoaster, 5(2)
JOURNAL OF THE PHILOSOPHY OF INTERNATIONAL LAW 75, 80 (2014) ..............................31
2. A. Fenton & D. Price, Breaking ISIS: Indonesias Legal Position on the Foreign Terrorist
Fighters Threat, 16(1) AUSTRALIAN JOURNAL OF ASIAN LAW 2, 17 (2015). ...................31
3. A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable on Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411 (2014). .................................24
4. B.C. Moore et al, Survival of Salmonella Enterica in Freshwater, 69(8) APPLIED

AND

ENVIRONMENTAL MICROBIOLOGY 4556 (2003). ................................................................35


5. C. Rottensteiner, The Denial of Humanitarian Assistance as a Crime under International
Law, 835 INTERNATIONAL REVIEW

OF

THE

RED CROSS (1999) (available at

https://www.icrc.org/eng/resources/documents/misc/57jq32.htm) (Last visited on 21


February, 2016). ..................................................................................................... 20, 21, 23
6. C. Thomas, Advancing the Legal Protection of the Environment in Relation to Armed
Conflict, 82 NORDIC JOURNAL OF INTERNATIONAL LAW 83 (2013). ..................................33
7. C.E. Bellew, Secession in International Law: Could ISIS Become a Legally Recognized
State? 42 OHIO NATIONAL UNIVERSITY LAW REVIEW 239 (2015). ...................................31
8. C.S. Jacobsen, Soil Survival of Salmonella and Transfer to Freshwater, 45(2) FOOD
RESEARCH INTERNATIONAL 557 (2012). ............................................................................35
9. D. Gaswaga, Does the ICC Have Jurisdiction over the Recruitment and Use of Child
Pirates? 19 ILSA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 277 (2013)
......................................................................................................................................20, 22
10. E. Reeves, On the Obstruction of Humanitarian Aid, 54(3) AFRICAN STUDIES REVIEW 165
(2011). .................................................................................................................... 20, 21, 23
8

11. H.R. Williamson, New Thinking in the Fight Against Marine Piracy, 46(1) CASE WESTERN
RESERVE JOURNAL OF INTERNATIONAL LAW 335 (2014). ..................................................24
12. I. Bantekas, Criminal Jurisdiction of States under International Law, MAX PLANK
ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (2011). ..................................................22
13. J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under
the International Law of War, 15 FLORIDA JOURNAL OF INTERNATIONAL LAW 481 (20022003). .......................................................................................................................... .36, 37
14. J. Dill, Applying the Principle of Proportionality in Combat Operations, Policy Briefing,
OXFORD INSTITUTE OF ETHICS, LAW AND ARMED CONFLICT (2010). ................................37
15. J. Kraemer et al, Blocking Humanitarian Assistance: A Crime against Humanity? 9645 THE
LANCET 372 (2008). .................................................................................................... .21, 23
16. J. Lawrence & K. Heller, The Limits of Art.8(2)(b)(iv) of the Rome Statute, 20 GEORGIA
INTERNATIONAL ENVIRONMENTAL LAW REVIEW 61 (2008). .............................................34
17. J. Talmon, The Constitutive versus the Declaratory Theory of Recognition: Tertium Non
Datur?, 75 BRITISH YEARBOOK OF INTERNATIONAL LAW 101 (2004) ..............................31
18. J. Wyatt, Law-making at the Intersection of International Environmental, Humanitarian
and Criminal Law, 92 INTERNATIONAL REVIEW OF THE RED CROSS 593 (2010). .............33
19. M. Bothe, The Protection of the Civilian Population and NATO Bombing on Yugoslavia,
12(3) EUROPEAN JOURNAL OF INTERNATIONAL LAW 531 (2001). .....................................34
20. M. Drumbl, Child Pirates: Rehabilitation, Reintegration and Accountability, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 235 (2014). ................... ..20, 22, 24
21. M. Drumbl, Waging War Against the World: The Need to Move from War Crimes to
Environmental Crimes, 22 FORDHAM INTERNATIONAL LAW JOURNAL 122 (1999). ..........34
22. M. Halpern, Protecting Vulnerable Environments in Armed Conflict, 51 STANFORD
JOURNAL OF INTERNATIONAL LAW 119 (2015). .................................................................33
23. M. Sassoli, Legitimate Targets of Attacks under International Humanitarian Law,
Background Paper, HARVARD PROGRAMME

ON

HUMANITARIAN POLICY

AND

CONFLICT

RESEARCH (2003). ..............................................................................................................36


24. M. Usmani, Restrictions on Humanitarian Aid in Darfur: The Role of the International
Criminal Court, 36 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 257,
279 (2007). .........................................................................................................................21
25. M.C. Bassiouni, Crimes Against Humanity: The Case for a Specialized Convention, 9(4)
WASHINGTON UNIV. GLOBAL STUDIES LAW REVIEW 575 (2010). .....................................27
9

26. O. Schachter, The Lawful Use Of Force By A State Against Terrorists In Another Country,
19 ISRAELI YEARBOOK ON HUMAN RIGHTS, 209 (1989). ..................................................32
27. P. Hwang, Defining Crimes Against Humanity in the Rome Statute of the International
Criminal Court, 22(2) FORDHAM INTERNATIONAL LAW JOURNAL. 457 (1998). ................25
28. R. Barnbridge, States Due Diligence Obligations with Regard to International Non-State
Terrorist Organisations Post-11 September 2011: The Heavy Burden that States Must
Bear, 16 IRISH STUDIES IN INTERNATIONAL AFFAIRS 103 (2005). .....................................32
29. R. Reyhani, Protection of the Environment During Armed Conflict, 14 MISSOURI
ENVIRONMENTAL LAW AND POLICY. 323 (2007). ..............................................................33
30. R.L. Lawton & E.V. Morse, Salmonella Survival in Freshwater, 15(4) JOURNAL

OF

ENVIRONMENTAL SCIENCE AND HEALTH 339 (2008). ........................................................35


31. S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF
INTERNATIONAL LAW 217 (2014). ................................................................... ...20, 22, 24
32. W.A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, 26(4)
FORDHAM INTERNATIONAL LAW JOURNAL 907 (2002). .....................................................27
33. W.A. Schabas, State Policy as an Element of International Crimes, 98(3) JOURNAL

OF

CRIMINAL LAW AND CRIMINOLOGY 953 (2008). ................................................................27


34. Z. Yihdego, The Islamic State Challenge: Defining the Actor, E-INTERNATIONAL
RELATIONS (2015). .............................................................................................................31
BOOKS
1. A. Cassese, P. Gaeta and J. Jones eds, THE ROME STATUTE

OF THE INTERNATIONAL

CRIMINAL COURT (2002). ............................................................................................ .35, 36


2. A. Cassese, THE OXFORD COMPANION TO INTERNATIONAL CRIMINAL JUSTICE (2009). ....22
3. A. Clapham et al, THE OXFORD HANDBOOK OF INTERNATIONAL LAW IN ARMED CONFLICT
(2014). ................................................................................................................................34
4. D. Raic, STATEHOOD AND THE LAW OF SELF-DETERMINATION (2002). ...................... .30, 31
5. I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2012). ........................ 22, 30, 31
6. J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III
(2004). ......................................................................................................................... .36, 37
7. J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW (2007). .................. .30, 31
8. K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD (2004)
..................................................................................................................................... .33, 35
9. M. Kohen, SECESSION: INTERNATIONAL LAW PERSPECTIVES (2006).................................31
10

10. M. Latimer et al eds., JUSTICE FOR CRIMES AGAINST HUMANITY (2003). .........................21
11. M. Vagias, THE TERRITORIAL JURISDICTION

OF THE INTERNATIONAL

CRIMINAL COURT

(2011). .................................................................................................................... 22, 28, 29


12. M.C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW (1999).
............................................................................................................................................27
13. M.C. Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW (2003)....................29
14. M.C. Bassiouni, THE LEGISLATIVE HISTORY

OF THE INTERNATIONAL

CRIMINAL COURT,

VOL.I (2005). ......................................................................................................................27


15. O. Triffterer, COMMENTARY

ON THE

ROME STATUTE

OF THE INTERNATIONAL

CRIMINAL

COURT (2008) .....................................................................................................................29


16. S. Darcy, COLLECTIVE RESPONSIBILITY

AND

ACCOUNTABILITY

UNDER INTERNATIONAL

LAW (2007). .......................................................................................................................22


17. S. Grover, PROSECUTING INTERNATIONAL CRIMES

AND

HUMAN RIGHTS ABUSES

COMMITTED AGAINST CHILDREN (2010). ...........................................................................24


18. S. Whitman et al, CHILDREN AND YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND
THE WAY FORWARD (2012). ............................................................................................. ..24

19. W. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY

TO THE

ROME

STATUTE (2010).................................................................................................... ..22, 25, 36


TREATIES AND CONVENTIONS
1. ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION OF 1949, 1125 UNTS 3 (December
7, 1978). .............................................................................................................................36
2. CONVENTION ON THE RIGHTS OF THE CHILD, 1577 UNTS 3 (November 20, 1989). .........20
3. MONTEVIDEO CONVENTION

ON THE

RIGHTS

AND

DUTIES

OF

STATES, 165 L.N.T.S 19

(December 26, 1934). ........................................................................................................31


4. OPTIONAL PROTOCOL

TO THE

CONVENTION

ON THE

RIGHTS

OF THE

CHILD

ON THE

INVOLVEMENT OF CHILDREN IN ARMED CONFLICT, UN Doc. No. A/RES/54/263 (May 25,


2000). .................................................................................................................................24
5. PROTOCOL
WOMEN

TO

AND

PREVENT, SUPPRESS

AND

PUNISH TRAFFICKING

CHILDREN, SUPPLEMENTING

THE

IN

PERSONS, ESPECIALLY

UNITED NATIONS CONVENTION

AGAINST

TRANSNATIONAL ORGANIZED CRIME, UN Doc. No. A/55/383 (November 15, 2000).


............................................................................................................................... 20, 23, 24
6. ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 2187 UNTS 90 (July 1, 2002)
[ICC Statute] .........................................................................................................passim
11

7. SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND


INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY, 226 UNTS 3 (April 30, 1957).
.................................................................................................................................... .20, 23
8. VIENNA CONVENTION ON THE LAW OF TREATIES, 1155 UNTS 331 (January 27, 1980). ...29
MISCELLANEOUS
1. Australia, The Manual on the Law of Armed Conflict (2006). ..........................................37
2. Commentary to the Articles on State Responsibility for Internationally Wrongful Acts, UN
Doc. A/56/83 (2001). .................................................................................................. .31, 32
3. ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3
....................................................................................................................... ...19, 20, 23, 30
4. EU DIRECTIVE

ON

PREVENTING

AND

COMBATING TRAFFICKING

IN

HUMAN BEINGS

AND

PROTECTING ITS VICTIMS, 2011/36/EU. .............................................................................24


5. Final Report to Prosecutor by the Committee Established to Review the NATO Bombing
Campaign against the Federal Republic of Yugoslavia (2000). .......................................34
6. Friendly Relations Resolution, UNGA Res. 2625, UN Doc. A/8028 (1970). ...................32
7. Guidelines on the Protection of the Environment in Times of Armed Conflict, UN GA Res.
No. A/RES/47/37 (1992). ..................................................................................................34
8. INTERNATIONAL

AND

OPERATIONAL LAW DEPARTMENT, US ARMY, Operational Law

Handbook (2007). ..............................................................................................................33


9. International Committee of the Red Cross Statement of 8 July 1998 Relating to the Bureau
Discussion Paper in Document A/CONF.183/C.1 /L.53, UN Doc. A/CONF.183/INF/10
(1998). ................................................................................................................................36
10. International Humanitarian Law And The Challenges Of Contemporary Armed Conflicts,
REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS, 03/IC/09 (2003)
................................................................................................................................ 35, 35, 38
11. Office of Prosecutor, Report on the Preliminary Examination Activities (2013). .............28
12. Opinion No.1 (Conference on Yugoslavia, Arbitration Commission) 3

EUROPEAN

JOURNAL OF INTERNATIONAL LAW 1 (1992). .....................................................................31


13. Report of the Independent International Commission of Inquiry on the Syrian Arab
Republic, UN Doc. No. A/HRC/30/48 (2015). ..................................................................27
14. RULES

OF

PROCEDURE

AND

EVIDENCE

OF THE INTERNATIONAL

CRIMINAL COURT, ICC-

ASP/1/3 (Part.II-A). ...........................................................................................................29


12

15. The European Consensus on Humanitarian Aid, EUROPEAN COMMISSION (available at


http://ec.europa.eu/echo/files/media/publications/consensus_en.pdf) (Last visited on 21
February 2016). ..................................................................................................................37
16. UN High Commissioner for Refugees, Exploitation and Abuse: Critical Issues (2001) ..20
17. Understandings, CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE
USE OF ENVIRONMENTAL MODIFICATION TECHNIQUES, UN GA Res. 31/72 (1977). .........34
18. UNEP, PROTECTING THE ENVIRONMENT DURING ARMED CONFLICT (2009).....................34
19. UNICEF, ESSENTIAL INFORMATION ABOUT CHILD TRAFFICKING, 14 (2010). ...................24
20. UNICEF, Global Statistics on Children's Protection from Violence, Exploitation and Abuse
(2014). ................................................................................................................................20
21. United Kingdom, The Manual of the Law of Armed Conflict (2004). ...............................37
22. United Nations Office on Drugs and Crime, TOOLKIT TO COMBAT TRAFFICKING IN PERSONS
(2010). ................................................................................................................................24
23. United States Department of State, TRAFFICKING IN PERSONS REPORT (2009). ................24
24. United States of America, Annotated Supplement to the Commanders Handbook on the
Law of Naval Operations (1997). ......................................................................................37
25. UNODC, TRAVAUX PRPARATOIRES OF THE NEGOTIATIONS FOR THE ELABORATION OF THE
UNITED NATIONS CONVENTION

AGAINST

TRANSNATIONAL ORGANIZED CRIME

AND THE

PROTOCOLS THERETO (2006). ............................................................................................24


26. UNSC Resolution 1373, UN Doc. S/RES/1373 (2001).....................................................32
27. UNSC Resolution 1456, UN Doc. S/RES/1456 (2003).....................................................32
28. UNSC Resolution 2133, UN Doc. S/RES/2133 (2014).....................................................32
29. UNSC Resolution 2199, UN Doc. S/RES/2199 (2015).................................................32
30. UNSC Resolution 2253, UN Doc. S/RES/2253 (2015).....................................................32

13

STATEMENT OF FACTS

THE ACTORS
Porvos, Tyvosh and Quirth are three countries with democratic governments, located adjacent
to each other. Olmic State of Tyvosh and Yunkel (OSTY) is a religious-based organization with
over 50,000 members which seeks to create an autonomous region in the Southern portion of
Yunkel and the whole of Tyvosh. It is led by an Olmic Cleric named Lance Raider, a national
of Yunkel, who makes all major political and military decisions of OSTY.
THE SIEGE OF QUIRTH
In January 2014, OSTY forces attacked and gained control of all Tyvosh, excluding the capital
city of Quirth. The attacks were financed with Lance Raiders inheritance from his father, who
owned the worlds largest shipping company in Yunkel. The UN High Commissioner for
Human Rights has stated that Yunkel is unable and unwilling to control the OSTY threat.
Since March 2014, OSTY forces have been engaged in a siege of Quirth and its 200,000
residents.
THE JUVENILE PIRATES AND ATTACKS ON PORVOSIAN AID SHIPS
At Tyvoshs request, Porvos began shipping humanitarian aid to Quirth from April 2014, using
dozens of Porvos-flagged commercial vessels. In June 2014, OSTY forces transformed two
dozen vessels from Lance Raiders shipping fleet to pirate ships. Further, they systematically
recruited at least 1000 juveniles under the age of 15 to participate in their piratical excursions.
In return, they offered a percentage of the piratical booty to the juveniles parents. Between
June 2014 and February 2015, 30 Porvos aid ships, 550 crew members and US$10 million
worth of humanitarian aid were captured in the pirate attacks. In February 2015, the Porvosian
ships were accompanied by private armed guards, who engaged in military skirmishes with the
pirates. Over 1000 pirates, including 500 juveniles, were killed in these skirmishes.
THE CONTAMINATION OF MIRROR LAKE
In March 2015, in order to dissuade Porvos from sending aid ships, OSTY publicly threatened
to poison Mirror Lake, Porvos major source of freshwater supply. When Porvos refused,
OSTY contaminated Yunkels tributaries to the Mirror Lake with Salmonella. The Salmonella
outbreak lasted weeks, and resulted in 3000 hospital visits and 50 deaths. Porvos halted its aid
shipments, but other countries started shipping aid to Quirth.
14

THE BOOK BY JUDGE HASTY


The OTP sought authorization from the Pre-Trial Chamber to commence investigation into the
situation, which was granted. One of the judges of the Pre-Trial Chamber, Judge Hasty, had
expressed certain opinions regarding Somali piracy in her written publication. The Government
of Yunkel cast aspersions on Judge Hastys impartiality and requested her disqualification.

15

ISSUES RAISED
-IWhether the recruitment and use of juvenile pirates by a non-state organization under the facts
stipulated in the case can be tried as a crime against humanity within the jurisdiction of the
International Criminal Court under Article 7 of the ICC Statute?
-IIWhether a non-state organizations cross-border contamination of a States water supply under
the facts stipulated in the case can constitute the war crime under Article 8(2)(b)(iv) of
widespread, long-term and severe damage to the natural environment?
-IIIWhether a Judge who, prior to her appointment, expressed an opinion on the issue of whether
recruitment and use of juvenile pirates can be tried by the ICC as a crime against humanity
must be disqualified under Art.41, ICC Statute?

16

SUMMARY OF ARGUMENTS
I.

OSTYS RECRUITMENT AND USE OF JUVENILE PIRATES CONSTITUTE CRIMES


AGAINST HUMANITY UNDER ART.7, ICC STATUTE
[A] The attacks on Porvosian vessels qualify as attacks since they involved multiple acts
of enslavement, obstruction of humanitarian aid and hostage-taking. Further, they
occurred on the territory of Porvos since constituent elements of these crimes on board
on Porvosian vessels.
[B] Parental consent cannot play as exculpatory role to the crime of enslavement since the
crimes of reduction to servile status and human trafficking are not excluded by
parental consent. Additionally, an investigation must be ordered to ascertain whether
the consent of parents was free and informed.
[C] The numerosity requirement need not be satisfied since the attacks were systematic
and in any event, the numerosity requirement was satisfied as the number of victims
were sufficient.
[D] The term organization includes non-state actors that possess state-like attributes and
OSTY can be considered such an organization.

II.

OSTYS CROSS-BORDER CONTAMINATION OF PORVOS WATER SUPPLY CONSTITUTES


A WAR CRIME UNDER ART.8(2)(B)(IV) OF THE ICC STATUTE
[A] The war crime under Art.8(2)(b)(iv), ICC Statute took place on the territory of Porvos
because the term conduct under Art.12(2), ICC must be interpreted to include all
components of a crime conduct, circumstances and consequences.
[B] The war crimes took place in the course of an international armed conflict between
OSTY and Porvos because OSTY can be considered a state. In any event, the actions
of OSTY can be attributed to Yunkel for its failure to exercise its due diligence
obligations.
[C] The standard of widespread, long term and severe is identical under the ENMOD
Convention and Additional Protocol I. In any event, the ENMOD Convention
standard must be adopted, which is met by the contamination.
[D] The contamination cannot be considered proportionate because it directly targeted
civilians and therefore, violated fundamental principles of humanitarian law like the
humanity principle and the distinction principle. In any event, there was no concrete
and direct military advantage to justify causing harm to the environment.

III.

JUDGE HASTY SHOULD NOT BE DISQUALIFIED UNDER ART.41, ICC STATUTE


17

[A] Yunkel has no locus standi to request disqualification as it is not granted this right
under Art.41(2), ICC Statute.
[B] In any event, the standard of bias required for disqualification is not met in the present
case because an objective observer would not apprehend definite bias and there was
no significant nexus between Judge Hastys opinion and the present case.

18

WRITTEN ARGUMENTS
I. OSTYS RECRUITMENT AND USE OF JUVENILE PIRATES CONSTITUTE
CRIMES AGAINST HUMANITY UNDER ART.7, ICC STATUTE
1. OSTY committed acts of piracy, by intercepting and attacking Porvosian aid vessels, in
order to make the siege of Quirth effective. The recruitment of juvenile pirates and their
use in such attacks constitute crimes against humanity under Art.7, ICC Statute. Contrary
to the Yunkels objections, attacks on Porvosian-flagged vessels in the high seas qualify as
attacks against a civilian population in the territory of Porvos [A]. The consent of the
juveniles parents to their participation in piratical excursions does not preclude the crime
of enslavement [B]. Further, Art.7s implicit numerosity requirement has been satisfied
[C]. Finally, OSTY is an entity that is capable of committing crimes against humanity [D].
[A] ATTACKS ON PORVOSIAN-FLAGGED VESSELS IN THE HIGH SEAS QUALIFY AS ATTACKS
AGAINST A CIVILIAN POPULATION IN THE TERRITORY OF PORVOS
2. Art.7, ICC Statute requires that crimes against humanity be committed as part of an attack
directed against any civilian population.1 Further, it requires that such crimes be
committed on the territory of a State Party.2 It is submitted that OSTYs recruitment of
juvenile pirates and their use in attacks against Porvosian ships constitute such attacks [i]
and are committed on Porvosian territory [ii].
i.

OSTYs recruitment and use of juvenile pirates constitute such attacks

3. An attack under Art.7 requires the multiple commission of acts specified under Art.7(1).3
In the present case, the systematic recruitment of juveniles for piratical excursions amounts
to enslavement.4 Further, the obstruction of ships carrying humanitarian aid and taking of
crew members as hostages amount to other inhumane acts of a similar character. 5
4. Enslavement includes reducing a person to a servile status as defined in the Supplementary
Convention ... of 1956 as well as trafficking in persons, particularly women and

1

Ar.7(1), ICC Statute.

Art.12(2)(a), ICC Statute.

Element 3 of Art.7, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 5;


Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T (ICTY), Judgment, 416 (2001); Prosecutor v.
Akayesu, Case. No. ICTR-96-4-T (ICTR), 581 (1998).
4

Art.7(1)(c), ICC Statute.

Art.7(1)(k), ICC Statute.

19

children.6 Reduction to servile status occurs when there is delivery of a child by his parents
to another person, with a view of exploiting the child.7 Moreover, Art.3(c) of the Palermo
Protocol states that the recruitment of a child for the purpose of exploitation shall be
considered trafficking.8 Exploitation can be shown by any activity that endangers a childs
life, health or wellbeing.9 The use of juvenile pirates in piratical excursions certainly
endangers their life and physical wellbeing,10 as evidenced by the death of half the juveniles
recruited by OSTY.11 Hence, the recruitment of juvenile pirates for piratical excursions
constitutes enslavement. OSTY systematically recruited as many as a thousand juveniles,12
thereby committing multiple acts of enslavement. Thus, OSTYs recruitment of juvenile
pirates constitutes an attack under Art.7.
5. Other inhumane acts of a similar character under Art.7(1)(k) must inflict great suffering,
or serious injury to body or to mental or physical health and be similar in character to any
other act under Art.7(1).13 Unlike simple acts of piracy for private gain, the purpose of the
attacks on Porvosian aid ships was to prevent humanitarian aid from reaching the 200,000
strong besieged population of Quirth. The obstruction of humanitarian aid can endanger
the health and welfare of the besieged population and its impact can be just as strong as
massacres committed with knives.14 The impact of such obstruction is certainly

6

Footnote 11, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 6.

Art.1(d), SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND INSTITUTIONS
AND PRACTICES SIMILAR TO SLAVERY, 226 UNTS 3 (April 30, 1957).
8

Art.3(c), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND
CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME,
UN Doc. No. A/55/383 (November 15, 2000).
9

Art.32, CONVENTION ON THE RIGHTS OF THE CHILD, 1577 UNTS 3 (November 20, 1989); UN High
Commissioner for Refugees, Exploitation and Abuse: Critical Issues, 6 (2001); UNICEF, Global Statistics on
Children's Protection from Violence, Exploitation and Abuse, 1 (2014).
10

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 217, 229 (2014); M.A. Drumbl, Child Pirates: Rehabilitation, Reintegration and Accountability, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 235, 251 (2014); D. Gaswaga, Does the ICC Have
Jurisdiction over the Recruitment and Use of Child Pirates?, 19 ILSA JOURNAL OF INTERNATIONAL AND
COMPARATIVE LAW 277, 290 (2013).
11

7-8, The Problem.

12

7, The Problem.

13

Elements 1 and 2, Art.7(1)(k), ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3,

6.
14

C. Rottensteiner, The Denial of Humanitarian Assistance as a Crime under International Law, 835
INTERNATIONAL
REVIEW
OF
THE
RED
CROSS
(1999)
(available
at
https://www.icrc.org/eng/resources/documents/misc/57jq32.htm) (Last visited on 21 February, 2016); E. Reeves,

20

inhumane.15 Moreover, it is considered similar in character to the crimes of murder,


extermination and persecution.16 It is opined by several jurists that obstruction of
humanitarian aid can be tried under Art.7(1)(k), ICC Statute.17 Even though the ICC may
not have territorial jurisdiction over the siege in Quirth, this Court has held that it has the
authority to consider all necessary information, including as concerns extra-jurisdictional
facts for the purpose of establishing crimes within its competence.18 Therefore, multiple
attacks against more than 30 Porvosian aid ships, obstructing $10 million worth of
humanitarian cargo, constitute an attack under Art.7. ICC Statute.
6. Further, hostage-taking is also included in other inhumane acts. During the attacks by
Israeli IDF Forces on the Gaza Humanitarian Aid Flotilla, Pre-Trial Chamber I considered
the possibility of hundreds of instances of outrages upon personal dignity, or torture or
inhuman treatment being committed on hostages.19 It is submitted that this possibility
must also be considered in the present case, and accordingly investigation must be ordered.
Moreover, hostage-taking in attacks directed against only Porvosian ships is considered
similar in character to the crimes of imprisonment and persecution under Art.7(1)(e),
ICC Statute.20 Therefore, the taking of more than 550 Porvosian crew members as hostages
constitute an attack under Art.7, ICC Statute.


On the Obstruction of Humanitarian Aid, 54(3) AFRICAN STUDIES REVIEW 165, 169 (2011); J. Kraemer et al,
Blocking Humanitarian Assistance: A Crime against Humanity? 9645 THE LANCET 372, 381 (2008).
15

Prosecutor v. Zejnil Delalic, Case No. IT-96-21-T (ICTY), Judgement, 554 (1998); Prosecutor v. Milorad
Krnojelac, Case No. IT-97-25-I (ICTY), Indictment, 5.31 (1997); Prosecutor v. Dragan Nikolic, Case No. IT94-2 (ICTY), Indictment, 24.1 (1994).
16

C. Rottensteiner, The Denial of Humanitarian Assistance as a Crime under International Law, 835
INTERNATIONAL
REVIEW
OF
THE
RED
CROSS
(1999)
(available
at
https://www.icrc.org/eng/resources/documents/misc/57jq32.htm) (Last visited on 21 February, 2016); E. Reeves,
On the Obstruction of Humanitarian Aid, 54(3) AFRICAN STUDIES REVIEW, 165, 170 (2011); M. Usmani,
Restrictions on Humanitarian Aid in Darfur: The Role of the International Criminal Court, 36 GEORGIA JOURNAL
OF INTERNATIONAL AND COMPARATIVE LAW 257, 279 (2007).
17

Id.

18

Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of
Cambodia, Case No. ICC-01/13, Decision on the request of the Union of the Comoros to review Prosecutors
decision not to initiate an investigation 17 (2015).
19

Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of
Cambodia, Case No. ICC-01/13, Decision on the request of the Union of the Comoros to review Prosecutors
decision not to initiate an investigation 26 (2015).
20

Prosecutor v. Kordic, Case No. IT-95-14/2-T (ICTY), Judgement, 204 (2001); Prosecutor v. Blaskic, Case
No. IT-95-14-T (ICTY), Judgement, 267 (2000); M. Latimer et al eds., JUSTICE FOR CRIMES AGAINST HUMANITY,

21

ii.

The attacks occurred on Porvosian territory

7. A vessel or aircraft is deemed to be the territory of the State of registration, for the purpose
of jurisdiction under Art.12(2), ICC Statute. According to Art.12(2)(a), ICC Statute, the
crime must have been committed on board the vessel or aircraft. The principle of objective
territoriality for the localization of criminal conduct has been uniformly applied by several
international21 and municipal courts.22 The extension of this principle to the ICC Statute is
also supported by several jurists.23 According to this principle, when any constituent
element of a crime, or its consequences, occur on a States territory, the entire crime is
deemed to have been committed within the territory of such State.24
8. In Prosecutor v. Lubanga, this Court observed that the offence of recruitment and use of
child soldiers is continuous in nature.

25

The crime in Prosecutor v. Lubanga is

considered identical to the recruitment and use of juvenile pirates and therefore, the crime
of enslavement is a continuing offence. 26 In case of continuing offences, all States in which
the criminal conduct persists can exercise jurisdiction, even if such conduct did not
originate within their territory.27 Therefore, although the juvenile pirates were recruited in


244-245 (2003); S. Darcy, COLLECTIVE RESPONSIBILITY AND ACCOUNTABILITY UNDER INTERNATIONAL LAW, 128
(2007).
21

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium) ICJ Rep. 2002 3 [Joint Separate
Opinion of Judges Higgins, Buergenthal and Kooijmans]; The Case of the S.S. Lotus (Turkey v. France) 1927
PCIJ Ser. A No. 10, 23.
22

Ford v United States, 273 US 593 (1927) [U.S. Supreme Court]; Gvk Inds. Ltd & Anr v. The Income Tax Officer
& Anr. (2011) 4 SCC 36 [Indian Supreme Court]; Wood pulp, Osakeyhti and ors. v. Commission of the European
Communities ECR 5193 ILEC 035 (1988) [Court of Justice of the European Union].
23

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 (2012); W. Schabas, THE INTERNATIONAL
CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 285 (2010); M. Vagias, THE TERRITORIAL
JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 40 (2011); A. Cassese, THE OXFORD COMPANION TO
INTERNATIONAL CRIMINAL JUSTICE, 402 (2009).
24

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 (2012).

25

Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06, Judgement, 618 (2012).

26

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 217, 229 (2014); M.A. Drumbl, Child Pirates: Rehabilitation, Reintegration and Accountability, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 235, 251 (2014); D. Gaswaga, Does the ICC Have
Jurisdiction over the Recruitment and Use of Child Pirates?, 19 ILSA JOURNAL OF INTERNATIONAL AND
COMPARATIVE LAW 277, 290 (2013).
27

Director of Public Prosecutions v Doot, UKHL [1973] 1 All ER 940; I. Bantekas, Criminal Jurisdiction of
States under International Law, MAX PLANK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, 5 (2011); N.
Boister, AN INTRODUCTION TO TRANSNATIONAL CRIMINAL LAW, 139 (2012).

22

Tyvosh and Yunkel, the crime of enslavement continued on Porvosian vessels and
therefore, is deemed to have been committed there.
9. Constituent elements of the other crimes against humanity also occurred on board the
Porvosian ships. The confiscation or seizure of humanitarian cargo worth US$ 10 million,
which is a constituent element of the crime of obstruction of humanitarian aid,28 occurred
on board the Porvosian ships. Similarly, the Porvisian crew members were seized, detained
or otherwise held hostage on board the Porvosian ships, which is a constituent element of
the crime of hostage-taking.29 Therefore, by applying the principle of objective
territoriality, all three attacks occurred on Porvosian territory.
[B] THE

CONSENT OF THE JUVENILES PARENTS DOES NOT PRECLUDE THE CRIME OF


ENSLAVEMENT

10. It has been submitted that the recruitment and use of juvenile pirates can be tried as
enslavement under Art.7(1)(c), ICC Statute, as it reduces the juvenile pirates to a servile
status and constitutes human trafficking.30 Parental consent in exchange for a share of the
piratical booty does not preclude these two crimes.
11. Delivery of a child for the purpose of exploitation is considered reduction to servile status,
even when the child is delivered by either or both of his natural parentsto another person,
whether for reward or not. 31 Thus, parental consent does not play an exculpatory role in
the servile status of a child. Similarly, the Palermo Protocol treats the recruitment of a
child for the purpose of exploitation as trafficking, irrespective of whether parental consent
has been granted. 32 The travaux to the provision indicates that the delegates did not intend

28

C. Rottensteiner, The Denial of Humanitarian Assistance as a Crime under International Law, 835
INTERNATIONAL
REVIEW
OF
THE
RED
CROSS
(1999)
(available
at
https://www.icrc.org/eng/resources/documents/misc/57jq32.htm) (Last visited on 21 February, 2016); E. Reeves,
On the Obstruction of Humanitarian Aid, 54(3) AFRICAN STUDIES REVIEW, 165, 169 (2011); J. Kraemer, D.
Bhattacharya and L. Gostin, Blocking Humanitarian Assistance: A Crime against Humanity? 9645 THE LANCET
372, 381 (2008).
29

Element 1 of Art.8(2)(a)(viii), ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3,


17.
30

See Argument I(A)(i).

31

Art.1(d), SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND
INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY, 226 UNTS 3 (April 30, 1957), cited in Footnote 11 of
Art.7(1)(c), ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 6.
32

Art.3(c), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND
CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME,
UN Doc. No. A/55/383 (November 15, 2000).

23

for parents to consent to the exploitation of their children.

33

Further, the giving or

receiving of payments or benefits to achieve the consent of a person having control over
another person for the purpose of exploitation is still considered human trafficking. 34
Therefore, parental consent obtained by offering a percentage of the piratical booty cannot
exclude the crime of human trafficking.
12. Moreover, it is widely accepted that parental consent does not preclude the crimes of
trafficking and other forms of enslavement.35 This Court36 and the Special Court on Sierra
Leone,37 while considering the recruitment of child soldiers, have refused to attribute an
exculpatory role to the consent of the children or their parents.38 Therefore, parental
consent to the juvenile pirates activities does not preclude the crime of enslavement.
13. Even in the Court considered parental consent to be exculpatory, such consent must be
freely given and informed.39 Parental consent to juvenile piracy is very rarely of this
nature.40 The present facts also do not clarify that the parents consent was free and


33

United Nations Office on Drugs and Crime, TRAVAUX PRPARATOIRES OF THE NEGOTIATIONS FOR THE
ELABORATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE
PROTOCOLS THERETO, 375 (2006).
34

Arts.3(a), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND
CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME,
UN Doc. No. A/55/383 (November 15, 2000).
35

United States Department of State, TRAFFICKING IN PERSONS REPORT, 7 (2009); UNICEF, ESSENTIAL
INFORMATION ABOUT CHILD TRAFFICKING, 14 (2010); United Nations Office on Drugs and Crime, TOOLKIT TO
COMBAT TRAFFICKING IN PERSONS, 6 (2010); Art.2, EU DIRECTIVE ON PREVENTING AND COMBATING
TRAFFICKING IN HUMAN BEINGS AND PROTECTING ITS VICTIMS, 2011/36/EU.
36

Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06, Judgement, 617 (2012).

37

Prosecutor v. Fofana, Case No. SCSL-04-14-T-796, Trial Chamber Judgment, 192 (2007).

38

S. Grover, PROSECUTING INTERNATIONAL CRIMES AND HUMAN RIGHTS ABUSES COMMITTED AGAINST
CHILDREN, 558 (2010).
39

Arts.3(a)-(c), OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT
OF CHILDREN IN ARMED CONFLICT, UN Doc. No. A/RES/54/263 (May 25, 2000); W, X, Y & Z v. The United
Kingdom, Appl. No. 3435-3438/67 (ECHR), 20 (1968).
40

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 217, 229 (2014); A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable on Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411, 423 (2014); M.A. Drumbl, Child Pirates:
Rehabilitation, Reintegration and Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW 235, 251 (2014); H.R. Williamson, New Thinking in the Fight Against Marine Piracy, 46(1) CASE
WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 335, 350 (2014); S. Whitman et al, CHILDREN AND
YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND THE WAY FORWARD, 43 (2012).

24

informed.41 When the Court is faced by such a factual ambiguity, an investigation is to be


permitted.42 Hence, investigation should be permitted in order to ascertain the nature of
consent given by the parents.
[C] ART.7S IMPLICIT NUMEROSITY REQUIREMENT HAS BEEN SATISFIED
14. Yunkel has raised the objection that Art.7s implicit numerosity requirement has not been
satisfied by the attacks. It is submitted that a crime under Art.7, ICC Statute need not satisfy
the numerosity requirement as long as it is systematic and in any event, the numerosity
requirement has been satisfied.
15. Art.7 requires that an attack must be widespread or systematic. These requirements are
considered disjunctive and therefore, an attack that is systematic need not be widespread.43
Further, the requirement under Art.7(2)(a) of multiple commission of acts does not
introduce a mandatory numerosity requirement. The drafting history of Art.7 clearly
indicates that this phrase was included to exclude isolated incidents. Thus, anything
more than one [act] could be multiple, and hence, satisfy this requirement.44 The term
systematic has been defined as the organized nature of the acts of violence and to the
improbability of their random occurrence.45 In the present case, the systematic nature of
the recruitment and use of juvenile pirates is admitted fact. 46 Moreover, the attacks against
the Porvosian ships were also an organized effort to prevent humanitarian aid from reaching
Quirth. Therefore, the attacks in the present case were systematic and need not satisfy the
numerosity requirement.

41

7, The Problem.

42

Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No.ICC-02/05-01/09, Judgment on the Appeal against
the Decision on the Warrant of Arrest, 33 (2010); Situation in the Republic of Kenya, Case No. ICC-01/09,
Decision on the Authorization of an Investigation, 33 (2010).
43

Situation in the Republic of Cote dIvoire, Case No.ICC-02/11-14, Decision on the Authorization of an
Investigation, 52-54 (2011); Situation in the Republic of Kenya, Case No.ICC-01/09-19-Corr, Decision on the
Authorization of an Investigation, 94 (2010); W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A
COMMENTARY TO THE ROME STATUTE, 148 (2010).
44

P. Hwang, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, 22(2)
FORDHAM INTERNATIONAL LAW JOURNAL. 457, 498-502 (1998).
45

Prosecutor v. Bashir, Case No. ICC-02/05-01/09, Decision on the Warrant of Arrest, 81 (2009); Prosecutor
v. Katanga et al., Case No. ICC-01/04-01/07, Decision on the Confirmation of the Charges, 394-397 (2008);
W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 148 (2010).
46

7, The Problem.

25

16. In any event, the attacks would meet such a requirement. Numerosity is determined inter
alia by the number of victims.47 Several decisions indicate that the presence of hundreds of
victims is sufficient to establish a crime against humanity.48 In the present case, the crime
of enslavement was committed against at least a thousand juveniles, 49 a number almost
identical to one considered sufficient the Kenya case.50 Further, the attacks against
Porvosian ships directly affected 550 Porvosian crew members and over 200,000 people of
Quirth. Hence, Art.7s implicit numerosity requirement is met by the attacks.
[D] OSTY IS AN ENTITY THAT IS CAPABLE OF COMMITTING CRIMES AGAINST HUMANITY
17. An attack must be in furtherance of a State or organizational policy in order to constitute
a crime against humanity.51 Yunkel contends that OSTY is neither a government nor a
parastatal entity, and is therefore incapable of meeting this requirement. It is submitted that
Yunkels objection is not a jurisdictional issue and in any event, OSTY fulfills the
requirements of an organization under Art.7(2)(a).
18. A Pre-Trial Chamber, when authorizing an investigation under Art.15 of the ICC Statute,
is to limit itself to questions of jurisdiction and admissibility.52 This Court has observed
that the interpretation of the term organization under Art.7(2)(a), as well as the existence
of such an organization on facts, are not issues pertaining to subject-matter jurisdiction,


47

Prosecutor v. Bashir, Case No. ICC-02/05-01/09, Decision on the Warrant of Arrest, 81 (2009); Prosecutor
v. Bemba, Case No. ICC-01/05-01/08, Decision on the Charges, 83(2009); Prosecutor v. Katanga et al., Case
No. ICC-01/04-01/07, Decision on the Confirmation of the Charges, 394-397 (2008).
48

Prosecutor v. Perii, Case No. IT-04-81 (ICTY), Trial Judgement, 549 (2013); Prosecutor v. Staki, Case
No. IT-97-24 (ICTY), Trial Judgement, 629 (2003); Prosecutor v. Simi et al, Case No. IT-95-9-T (ICTY), Trial
Judgement, 980 (2003); Prosecutor v. Vasiljevi, Case No. IT-98-32 (ICTY), Trial Judgement, 51, 56-58
(2002).
49

7, The Problem.

50

Situation in the Republic of Kenya, Case No.ICC-01/09-19-Corr, Decision on the Authorization of an


Investigation, 131 (2010).
51

Art.7(2)(a), ICC Statute.

52

Art.15(4), ICC Statute; W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 257
(2011).

26

but instead relate to the substantive merits of a case. 53 Therefore, Yunkels objection is not
a jurisdictional objection and cannot be entertained at the pre-trial stage.
19. In any event, the term organization under Art.7(2)(a) is not restricted to governmental or
parastatal entities, as Yunkel contends, but also includes non-State actors under certain
circumstances. Yunkel may seek to rely on Prof. Bassiounis narrow reading of Art.7,54 to
contend that the term organization is only restricted to governmental organizations. Such
a narrow interpretation has also been expressly rejected by this Court.55 In fact, in
subsequent writings, Prof. Bassiouni himself accepted a wider interpretation of the term
organization, which includes non-state actors.56
20. A non-State actor which possesses de facto control over territory and a capability to commit
widespread or systematic attacks would thus, satisfy the requirement of an
organization.57 In the instant case, OSTY has de facto control over the territory of
Tyvosh,58 as well as a capacity to commit a widespread or systematic attacks.59 Similar
entities, such as the the Palestinian Authority,60 the Islamic State,61 Al-Qaeda,62 and the

53

Prosecutor v. Muthauru et al, Case No. ICC-01/09-02/11 OA 4, Decision on the appeal against the decision of
Pre-Trial Chamber II of 23 January 2012, 36 (2012); Prosecutor v. Ruto et al, Case No. ICC-01/09-01/11 OA3
OA4, Decision on the appeal against the decision of Pre-Trial Chamber II of 23 January 2012, 30 (2012).
54

M.C. Bassiouni, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT, VOL.I, 151-152 (2005).

55

Situation in the Republic of Cote dIvoire, Case No.ICC-02/11-14, Decision on the Authorization of an
Investigation, 45 (2011); Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization
of an Investigation, 93 (2010); Prosecutor v. Bemba, Case No. ICC-01/05-01/08-424, Decision on the Charges
Against Jean-Pierre Bemba Gombo, 81 (2009); Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07-717,
Decision on the confirmation of charges, 396 (2008).
56

See M.C. Bassiouni, Crimes Against Humanity: The Case for a Specialized Convention, 9(4) WASHINGTON
UNIV. GLOBAL STUDIES LAW REVIEW 575, 585 (2010); M.C. Bassiouni, CRIMES AGAINST HUMANITY IN
INTERNATIONAL CRIMINAL LAW, 275 (1999).
57

Prosecutor v. Bemba, Case No. ICC-01/05-01/08-424, Decision on the Charges Against Jean-Pierre Bemba
Gombo, 81 (2009); Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07-717, Decision on the confirmation
of charges, 396 (2008); Prosecutor v. Tadic, Case No. IT-94-1-T (ICTY), Judgement, 653 (1997).
58

4, The Problem.

59

See Argument I(C).

60

W.A. Schabas, State Policy as an Element of International Crimes, 98(3) JOURNAL OF CRIMINAL LAW AND
CRIMINOLOGY 953, 972 (2008).
61

Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. No.
A/HRC/30/48, 172 & 184 (2015).
62

W.A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, 26(4) FORDHAM
INTERNATIONAL LAW JOURNAL 907, 930 (2002).

27

Taliban63 have also been considered organizations under Art.7(2)(a), ICC Statute.
Therefore, OSTY fulfills the requirements of an organization under Art.7(2)(a), ICC
Statute.
21. Therefore, OSTYs recruitment and use of juvenile pirates in attacks against Porvosian aid
ships constitute crimes against humanity under Art.7, ICC Statute.
II.
OSTYS CROSS-BORDER CONTAMINATION OF PORVOS WATER
SUPPLY CONSTITUTES A WAR CRIME UNDER ART.8(2)(B)(IV) OF THE ICC
STATUTE
22. It is submitted that OSTYs cross-border contamination of Mirror Lake with Salmonella
constitutes a war crime under Art.8(2)(b)(iv), ICC Statute. The conduct in question
occurred on Porvosian territory [A], and took place in the course of and in furtherance of
an international armed conflict [B]. The damage to the natural environment caused by the
contamination was widespread, long-term and severe [C], and was excessive in relation to
the concrete military advantage anticipated [D].
[A] THE CONDUCT IN QUESTION OCCURRED ON PORVOSIAN TERRITORY
23. Art.12(2)(a), ICC Statute states that the Court would have jurisdiction over a crime if the
State on the territory of which the conduct in question occurred is a party to the Statute.
OSTYs actions occurred within Yunkel, a non-State party, while the consequences of the
same occurred on the territory of Porvos. The term crime ordinarily comprises of three
distinct elements conduct, consequences and circumstances.64 Although Art.12 states that
the conduct in question must occur within the territory of a State party, it is submitted that
the terms conduct and crime are synonymous for the purposes of Art.12.
24. The term conduct has been used in two distinct connotations in the ICC Statute. The first
is as a component of a crime, such as in Art.30. The second is as the entirety of a crime,
inclusive of its consequences, such as in Arts.22(1), 20(1) & 20(3). It is submitted that
Art.12 uses conduct in the latter sense. This is because Part II of the Statute, which
contains both Art.12 and Arts.20(1) and 20(3), was drafted together, whereas Part III, which


63

Office of Prosecutor, Report on the Preliminary Examination Activities, 37-38 (2013).

64

M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 110 (2011).

28

contains Art.30, was drafted separately.65 According to the well settled jurisprudence of
this Court, any provision of the ICC Statute must be interpreted in light of the section of
the Statute within which it occurs, and with which it was drafted.66 Moreover, in the
Katanga Confirmation decision, this Court affirmed that such interpretation must take
place by excluding unrelated provisions of the Statute, whose application would engender
an asystematic opinio juris.67 Hence, the term conduct in Art.12 must be interpreted
uniformly with Arts.20(1) & 20(3).
25. This Court has, on multiple occasions, interpreted the term conduct in Art.12 as
synonymous with crime.68 The deliberations of the Assembly of States Parties Working
Group on the Crime of Aggression also indicate that this was the intended meaning of
conduct in Art.12.69 Such an interpretation is also necessary to give effect to the object
and purpose of the ICC Statute.70 The Preamble to the Statute states that the most serious
crimesmust not go unpunished, and that the Statute intends to put an end to impunity.
The availability of weapons that possess the capacity to travel large distances, and have
consequences across State borders, makes it imperative to interpret conduct and crime
to ensure the effective deterrence of war crimes.71 Therefore, the the terms conduct and
crime are synonymous for the purposes of Art.12.
26. As per the objective territoriality principle, a crime is deemed to fall within a States
territorial jurisdiction when any constituent element of such crime, including its


65

O. Triffterer, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 555 (2008);
M.C. Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, 504 (2003).
66

Situation in Democratic Republic of Congo, Case No.ICC-01/04, Judgment on Prosecutors Application for
Extraordinary Review, 33 (2006).
67

Prosecutor v. Katanga, Case No.ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 481 (2008);
Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-262, Decision on the Evidence and Information
Provided for the Issuance of a Warrant of Arrest, 14 (2007).
68

Situation in the Republic of Cote dIvoire, Case No.ICC-02/11-14, Decision on the Authorization of an
Investigation, 187 (2011); Situation in the Republic of Kenya, Case No.ICC-01/09-19-Corr, Decision on the
Authorization of an Investigation, 175 (2010).
69

Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, ICCASP/7/SWGCA/2, 38 (2009).
70

Art.31, VIENNA CONVENTION ON THE LAW OF TREATIES, 1155 UNTS 331 (January 27, 1980).

71

M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 114 (2011).

29

consequences, occurs on the States territory.72 In the instant case, damage to the natural
environment is a constituent element of the war crime under Art.8(2)(b)(iv).73 As such
damage took place within Porvos,74 the crime is deemed to have occurred within Porvosian
territory by the objective territorial principle. Consequently, this Court has jurisdiction over
the crime.
[B] THE CONTAMINATION TOOK PLACE IN THE COURSE OF AND IN FURTHERANCE OF AN
INTERNATIONAL ARMED CONFLICT
27. An international armed conflict exists whenever there is a resort to armed force between
States.75 OSTY contaminated Mirror Lake as a response to Porvos aid shipments to
Quirth. It is submitted that this contamination took place in the context of an international
armed conflict with Porvos because OSTY can be considered a state [i], or, alternatively,
because OSTYs actions can be attributed to Yunkel [ii].
i.

OSTY can be considered a state

28. The four criteria that are necessary to acquire statehood under customary international law
are: (a) a permanent population; (b) a defined territory; (c) an effective government; and
(d) independence.76 OSTY gained control over the entire area of Tyvosh, excluding Quirth,
thereby obtaining a defined territory.77 This territory possesses a permanent population.78
The third requirement, an effective government, is defined as the ability of an entity to
administer a territory to the exclusion of all others.79 OSTYs continuing control and
administration of its territory for over two years80 is sufficient to indicate an effective
government. Finally, OSTY also possesses independence, as all major political and military

72

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 ( 2012).

73

Element 2 of Art.8(2)(b)(iv), ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3,


19.
74

9, The Problem.

75

Prosecutor v. Tadi, Case No.IT-94-1 (ICTY), Decision on the Defence Motion on Jurisdiction, 70 (1999).

76

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 37 ( 2007); I. Brownlie, PRINCIPLES OF PUBLIC
INTERNATIONAL LAW, 127 (2012); D. Raic, STATEHOOD AND THE LAW OF SELF-DETERMINATION, 58 (2002).
77

4, The Problem.

78

1, The Problem.

79

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 59 (2007).

80

4-5, The Problem.

30

decisions are made by Lance Raider, without any evidence of external influence or
control.81 Therefore, OSTY has fulfilled the four criteria of statehood.
29. Although OSTY acquired territory by the use of force and therefore, the state formed by it
would be an illegal one, it is submitted that legality of creation is not a criterion for
statehood.82 Further, the absence of international recognition of OSTY is also not a bar to
statehood, since recognition is merely declaratory, and not constitutive of statehood.83
Thus, the Islamic State, a terrorist organization with continuing control over territory, is
considered a State by several jurists.84 In any event, the legality of creation certainly does
not affect the classification of an armed conflict as international. The rules on state
responsibility can be relied on for the purposes of such classification. 85 The Commentary
to the Articles on State Responsibility clarifies that [n]o distinction should be made
between different categories of movements on the basis of any international legitimacy or
of any illegality in respect of their establishment as a Government.86 Hence, OSTY can be
considered a state for the purpose of classifying the armed conflict as international.
ii.

OSTYs actions can be attributed to Yunkel

30. The rules for attribution of conduct to a particular State are not contained in the ICC Statute.
Hence, the rules of State responsibility can be relied on.87 According to such rules, a State
may be responsible for the conduct of private parties if it fails to take necessary measures

81

3, The Problem.

82

J. Talmon, The Constitutive versus the Declaratory Theory of Recognition: Tertium Non Datur?, 75 BRITISH
YEARBOOK OF INTERNATIONAL LAW 101, 134 (2004); M. Kohen, SECESSION: INTERNATIONAL LAW
PERSPECTIVES, 470 (2006); Art.1, MONTEVIDEO CONVENTION ON THE RIGHTS AND DUTIES OF STATES, 165
L.N.T.S 19 (1934); Opinion No.1 (Conference on Yugoslavia, Arbitration Commission) 3 EUROPEAN JOURNAL
OF INTERNATIONAL LAW 1 (1992).
83

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 37 (2007); I. Brownlie, PRINCIPLES OF PUBLIC
INTERNATIONAL LAW, 127 (2012); D. Raic, STATEHOOD AND THE LAW OF SELF-DETERMINATION, 58 (2002).
84

A. Coleman, The Islamic State and International Law: An Ideological Rollercoaster, 5(2) JOURNAL OF THE
PHILOSOPHY OF INTERNATIONAL LAW 75, 80 (2014); C.E. Bellew, Secession in International Law: Could ISIS
Become a Legally Recognized State?, 42 OHIO NATIONAL UNIVERSITY LAW REVIEW 239, 254 (2015); A. Fenton
& D. Price, Breaking ISIS: Indonesias Legal Position on the Foreign Terrorist Fighters Threat, 16(1)
AUSTRALIAN JOURNAL OF ASIAN LAW 2, 17 (2015); Z. Yihdego, The Islamic State Challenge: Defining the
Actor, E-INTERNATIONAL RELATIONS (2015).
85

Prosecutor v. Tadi, Case No.IT-94-1-A (ICTY), Appeals Chamber Judgement, 98, 105 (1999).

86

Commentary to the Articles on State Responsibility for Internationally Wrongful Acts, UN Doc. A/56/83, 51
(2001).
87

Prosecutor v. Tadi, Case No.IT-94-1-A (ICTY), Appeals Chamber Judgement, 98, 105 (1999).

31

to prevent such conduct.88 This due diligence obligation requires States to take all possible
measures to prevent harm to other States from an activity committed on their territory.89
31. International law imposes a very high standard of vigilance with respect to international
terrorism.90 This standard is reflected in various resolutions of the United Nations Security
Council. The obligations imposed upon States include prevention of financing of terrorist
activities by freezing funds and other financial assets,91 investigating and prosecuting
persons engaged in terrorist activities,92 preventing the use of flag vessels and aircrafts for
terrorist purposes,93 and preventing the direct or indirect supply of arms and ammunition.94
In the present case, Yunkel did not take any steps to prevent Lance Raider from using his
inheritance to finance OSTYs terrorist activities.95 Further, Yunkel has not instituted
criminal proceedings against the members of OSTY.96 In June 2014, Yunkel took no steps
to prevent the use of two dozen Yunkel-flagged vessels as pirate ships.97 Further, it did not


88

Commentary to the Articles on State Responsibility for Internationally Wrongful Acts, UN Doc. A/56/83, 39
(2001); R. Barnbridge, States Due Diligence Obligations with Regard to International Non-State Terrorist
Organisations Post-11 September 2011: The Heavy Burden that States Must Bear, 16 IRISH STUDIES IN
INTERNATIONAL AFFAIRS 103, 107 (2005).
89

United States Diplomatic and Consular Staff in Tehran (Hostages) (United States v. Iran), ICJ Rep 3, 32-33
(1980); Corfu Channel (United Kingdom v Albania), Merits, ICJ Rep 4, 22 (1949); Asian Agricultural Products
Ltd. (AAPL) v. Republic of Sri Lanka, 30 ILM 577, 588 (1990).
90

Friendly Relations Resolution, UNGA Res. 2625, UN Doc. A/8028, 1 (1970); R. Barnbridge, States Due
Diligence Obligations with Regard to International Non-State Terrorist Organisations Post-11 September 2011:
The Heavy Burden that States Must Bear, 16 IRISH STUDIES IN INTERNATIONAL AFFAIRS 103, 113 (2005); O.
Schachter, The Lawful Use Of Force By A State Against Terrorists In Another Country , 19 ISRAELI YEARBOOK
ON HUMAN RIGHTS, 209, 212 (1989).
91

UNSC Resolution 2253, UN Doc. S/RES/2253, (2)(a) (2015); UNSC Resolution 2199, UN Doc. S/RES/2199,
3 (2015); UNSC Resolution 2133, UN Doc. S/RES/2133, 2 (2014); UNSC Resolution 1373, UN Doc.
S/RES/1373, 1(a) and (c) (2001).
92

UNSC Resolution 2253, UN Doc. S/RES/2253, 12 (2015); UNSC Resolution 2199, UN Doc. S/RES/2199,
11 (2015); UNSC Resolution 1456, Un Doc. S/RES/1456, 3 (2003); UNSC Resolution 1373, UN Doc.
S/RES/1373, 2(e) (2001).
93

UNSC Resolution 2253, UN Doc. S/RES/2253, (2)(c) (2015); UNSC Resolution 2199, UN Doc. S/RES/2199,
24 (2015).
94

UNSC Resolution 2253, UN Doc. S/RES/2253, (2)(c) (2015); UNSC Resolution 2199, UN Doc. S/RES/2199,
24 (2015); UNSC Resolution 1373, UN Doc. S/RES/1373, 3(a) (2001).
95

3-4, The Problem.

96

2, The Problem.

97

6, The Problem.

32

take steps to prevent the transfer of weapons to OSTY militants.98 In fact, a 2014 UNHCR
Report stated that Yunkel possesses a weak, corrupt government that for the past five years
has beenunwilling to control the OSTY threat.99
32. Admittedly, Yunkel disputes this characterization of this UNHCR Report. However, as this
Court has repeatedly noted, the standard of proof to authorize an investigation under
Art.15(3) of the ICC Statute is extremely low and it is sufficient at this stage to prove that
there is a reasonable conclusion alongside others which can be supported on the basis of
the evidence and information available.100 The facts stipulated above, as well as the
UNHCR Report, indicate that Yunkels unwillingness to control OSTY is a reasonable
conclusion. Hence, Yunkel has failed to comply with its due-diligence obligations.
Consequently, OSTYs actions can be attributed to Yunkel, transforming the conflict with
Porvos into an international armed conflict.
[C] THE

DAMAGE CAUSED BY THE CONTAMINATION IS WIDESPREAD, LONG-TERM AND


SEVERE

33. In order to constitute a war crime an attack must cause widespread, long-term and severe
damage to the natural environment. Although the ICC Statute does not define widespread,
long-term and severe damage, identical terms have been used in the ENMOD Convention
and Additional Protocol I to the Geneva Convention. Since the latter does not define these
terms, it is considered that Additional Protocol I has adopted the ENMOD definition by
default.101 This interpretation is supported by the military manuals of numerous States.102
Moreover, the Guidelines on the Protection of the Environment in Times of Armed Conflict,

98

4, The Problem.

99

2, The Problem.

100

Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No.ICC-02/05-01/09, Judgment on the Appeal against the
Decision on the Warrant of Arrest, 33 (2010); Situation in the Republic of Kenya, Case No. ICC-01/09, Decision
on the Authorization of an Investigation, 33 (2010).
101

C. Thomas, Advancing the Legal Protection of the Environment in Relation to Armed Conflict, 82 NORDIC
JOURNAL OF INTERNATIONAL LAW 83, 89 (2013); J. Wyatt, Law-making at the Intersection of International
Environmental, Humanitarian and Criminal Law, 92 INTERNATIONAL REVIEW OF THE RED CROSS 593, 624
(2010); M. Halpern, Protecting Vulnerable Environments in Armed Conflict, 51 STANFORD JOURNAL OF
INTERNATIONAL LAW119, 136 (2015); K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL
THRESHOLD, 91 (2004).
102

J. Wyatt, Law-making at the Intersection of International Environmental, Humanitarian and Criminal Law, 92
INTERNATIONAL REVIEW OF THE RED CROSS 593, 624 (2010); International and Operational Law Department, US
Army, Operational Law Handbook (2007); R. Reyhani, Protection of the Environment During Armed Conflict,
14 MISSOURI ENVIRONMENTAL LAW AND POLICY. 323, 326 (2007).

33

adopted by the General Assembly, also use the ENMOD definition for the three criteria.103
Thus, it is submitted that the threshold under both the ENMOD Convention and Additional
Protocol I should be considered identical.
34. Even if the threshold under Additional Protocol I is considered higher than that under the
ENMOD Convention, it is submitted that the latter should be applied under Art.8(2)(b)(iv).
Those who propose a different thresholds observe that the Additional Protocols stringent
and imprecise thresholdis nearly impossible to achieve.104 In fact, even when Iraq set
fire to over 500 Kuwaiti oil wells, causing air and water pollution that extended over 1500
square miles, it was found that the Additional Protocol standard had not been satisfied.105
The damage caused by NATOs bombing campaign in Yugoslavia could also not be
prosecuted because it failed to meet the Additional Protocol standard.106 Therefore, the
lower threshold of the ENMOD Convention is better suited to accomplish the objectives of
the ICC Statute.107
35. According to the ENMOD Convention, widespread encompasses an area on the scale of
several hundred square kilometers; long-lasting indicates a period of months or
approximately a season; and severe involves serious or significant disruption or harm
to human life, natural and economic resources or other assets.108 It is submitted that
OSTYs contamination of rivers with Salmonella meets the ENMOD standard. When
pollutants are discharged into mobile water bodies, such as underground water systems or
rivers, the pollutants contaminate not only the entire water body, but also the surrounding
vegetation and, consequentially, the populations that depend on such vegetation and

103

Guidelines on the Protection of the Environment in Times of Armed Conflict, UN GA Res. No. A/RES/47/37
(1992).
104

United Nations Environment Programme, PROTECTING THE ENVIRONMENT DURING ARMED CONFLICT, 51
(2009).
105

A. Clapham et al, THE OXFORD HANDBOOK OF INTERNATIONAL LAW IN ARMED CONFLICT, 480 (2014).

106

Final Report to Prosecutor by the Committee Established to Review the NATO Bombing Campaign against
the Federal Republic of Yugoslavia, 17 (2000).
107

M. Bothe, The Protection of the Civilian Population and NATO Bombing on Yugoslavia, 12(3) EUROPEAN
JOURNAL OF INTERNATIONAL LAW 531 (2001); M. Drumbl, Waging War Against the World: The Need to Move
from War Crimes to Environmental Crimes, 22 FORDHAM INTERNATIONAL LAW JOURNAL 122 (1999); J. Lawrence
& K. Heller, The Limits of Art.8(2)(b)(iv) of the Rome Statute, 20 GEORGIA INTERNATIONAL ENVIRONMENTAL
LAW REVIEW. 61 (2008).
108

Understandings, CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OF


ENVIRONMENTAL MODIFICATION TECHNIQUES, UNGA Res. 31/72 (1977).

34

water.109 Hence, the contamination of such mobile bodies, as done by OSTY, must
necessarily meet the widespread threshold, as the resulting damage would always extend
over several hundred square kilometers.110 Moreover, since the Salmonella bacterium
survives in water for over four months,111 the damage caused by OSTYs contamination is
also long term. Finally, the Salmonella contaminated Mirror Lake, on which half the
population of Porvos depends for its water supply.112 It also induced an outbreak of
Salmonella-caused illness, which resulted in 3,000 hospital visits and 50 deaths.113
Therefore, the contamination caused serious or significant disruptionto human life and
was severe. Thus, OSTYs contamination caused widespread, long term and severe
damage.
[D] THE

DAMAGE WAS EXCESSIVE IN RELATION TO THE CONCRETE MILITARY

ADVANTAGE ANTICIPATED

36. The test of proportionality requires that the damage to the natural environment must be
clearly excessive in relation to the concrete and direct military advantage anticipated.114 It
is submitted that OSTYs actions cannot be considered proportionate because first, it
violates fundamental principles of humanitarian law and second, the military advantage
anticipated by OSTY is not significant enough to justify the damage caused to the natural
environment.
i.

OSTYs actions violate fundamental principles of humanitarian law


109

K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 93-94 (2004).

110

Id.

111

B.C. Moore et al, Survival of Salmonella Enterica in Freshwater, 69(8) APPLIED AND ENVIRONMENTAL
MICROBIOLOGY 4556 (2003); C.S. Jacobsen, Soil Survival of Salmonella and Transfer to Freshwater, 45(2) FOOD
RESEARCH INTERNATIONAL 557 (2012); R.L. Lawton & E.V. Morse, Salmonella Survival in Freshwater, 15(4)
JOURNAL OF ENVIRONMENTAL SCIENCE AND HEALTH 339 (2008).
112

9, The Problem.

113

9, The Problem.

114

Article 8(2)(b)(iv), ICC Statute; A. Cassese, P. Gaeta and J. Jones eds, THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT, 398 (2002); International Humanitarian Law And The Challenges Of
Contemporary Armed Conflicts, REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS, 03/IC/09, 11
(2003).

35

37. The proportionality principle has been adopted from Art.51(5)(b) and Art.57(2)(a)(iii) of
Additional Protocol I, with certain modifications.115 It is widely accepted that these
modifications do not change existing law.116 Therefore, it is submitted that the test for
proportionality under Additional Protocol I and the ICC Statute continues to remain the
same.
38. The ICRC Commentary states that fundamental principles of humanitarian law are implicit
in the principle of proportionality and an attack cannot be justified as proportionate if it
contravenes these fundamental principles.117 The principles of humanity and distinction are
considered fundamental principles of humanitarian law.

118

The principle of humanity

prohibits attacks that are directed towards civilians and civilian objects or whose primary
purpose is to terrorize civilians.119 The principle of distinction requires that attacks must
clearly discriminate between military objectives and civilian targets.120 Thus, a noted
scholar has observed that it is impermissible under any circumstances, for example, to
starve human population or poison a population's water, and so on, no matter how beneficial
a military advantage might be gained by the action.121 This prohibition has been reiterated


115

Article 51(5)(b) and Article 57(2)(a)(iii), ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION OF 1949,
1125 UNTS 3 (December 7, 1978); A. Cassese, P. Gaeta and J. Jones eds, THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT, 398 (2002).
116

W. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 230 (2010);
International Committee of the Red Cross Statement of 8 July 1998 Relating to the Bureau Discussion Paper in
Document A/CONF.183/C.1 /L.53, UN Doc. A/CONF.183/INF/10 (1998).
117

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, 2207 (2004); M.
Sassoli, Legitimate Targets of Attacks under International Humanitarian Law, Background Paper, HARVARD
PROGRAMME ON HUMANITARIAN POLICY AND CONFLICT RESEARCH, 1 (2003).
118

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, 1923 (2004); J.
Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of
War, 15 FLORIDA JOURNAL OF INTERNATIONAL LAW 481, 492 (2002-2003).
119

Article 51(2), ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION OF 1949, 1125 UNTS 3 (December 7,
1978); J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International
Law of War, 15 FLORIDA JOURNAL OF INTERNATIONAL LAW 481, 496 (2002-2003).
120

Article 51(2), ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION OF 1949, 1125 UNTS 3 (December 7,
1978); J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International
Law of War, 15 FLORIDA JOURNAL OF INTERNATIONAL LAW 481, 495 (2002-2003); International Humanitarian
Law and The Challenges Of Contemporary Armed Conflicts, REPORT OF THE INTERNATIONAL COMMITTEE OF THE
RED CROSS, 03/IC/09, 10 (2003).
121

J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law
of War, 15 FLORIDA JOURNAL OF INTERNATIONAL LAW 4, (2002-2003).

36

in the army manuals of several countries.122 The humanity and distinction principles are
also reflected in Art.8(2)(b)(i) and (ii) of the ICC Statute. Thus, the test of proportionality
must be applied in conjunction with the principles of humanity and distinction.
39. In the present case, OSTY decided to contaminate with Salmonella the waters of Mirror
Lake, which was a vital source of freshwater for half the population of Porvos. Regardless
of the gravity of the Salmonella outbreak, the very act of targeting civilians of Porvos in
order to influence the actions of its government constitutes a violation of the humanity and
discrimination principles. Consequently, the actions of OSTY did not satisfy the test of
proportionality under Article 8(2)(b)(iv).
ii.

The military advantage anticipated by OSTY is not significant enough

40. The test of proportionality requires that the humanitarian and military interests of an action
must be balanced against each other. On the positive side of the proportionality calculus,
the concrete and direct overall military advantage must be considered. The expression
concrete and direct indicates that an anticipated advantage must be both substantial and
imminent.123
41. In the present case, although the poisoning of Mirror Lake was done with the ultimate
objective of making the siege of Tyvosh successful, such a result would not occur in the
proximate short term and therefore was not a direct military advantage. 124 Further, the
action would not cut off all supplies of humanitarian aid to Quirth, since most States
contribute aid to areas with crisis and shortage.125 In fact, when Porvos halted its aid
shipments, other states started shipping aid to Quirth.126 Thus, the stoppage of all aid to
Quirth would not be a concrete advantage . The only advantage that OSTY anticipated

122

J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law
of War, 15 FLORIDA JOURNAL OF INTERNATIONAL LAW 481, 492 (2002-2003).; United States of America,
Annotated Supplement to the Commanders Handbook on the Law of Naval Operations, Section 8.1.2 (1997);
United Kingdom, The Manual of the Law of Armed Conflict, Section 15.19 (2004); Australia, The Manual on the
Law of Armed Conflict, Section 7.10 (2006).
123

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, 2209 (2004).

124

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, 2209 (2004); J.
Dill, Applying the Principle of Proportionality in Combat Operations, Policy Briefing, OXFORD INSTITUTE OF
ETHICS, LAW AND ARMED CONFLICT, 3 (2010).
125

The European Consensus on Humanitarian Aid, EUROPEAN COMMISSION, 5 (available


http://ec.europa.eu/echo/files/media/publications/consensus_en.pdf) (Last visited on 21 February 2016).
126

9, The Problem.

at

37

was to prevent one State, Porvos, from contributing humanitarian aid to Quirth, without
impacting Quirths overall ability to withstand the siege. It is accepted that attacks on the
morale of the civilian population as a means of influencing the enemy's determination to
fight would not meet the threshold of a concrete military advantage.127 Thus, OSTYs
attempt to dissuade Porvos from sending aid to Quirth by terrorizing its civilians would not
constitute a concrete advantage. On the negative side of the calculus, OSTY caused
widespread, long-term and severe damage to the environment and to Porvosian
nationals.128
42. Thus, there is no overall concrete and direct military advantage to justify intentionally
targeting the civilian population of Porvos and causing widespread, long term and severe
damage to the environment. Therefore, the damage to the environment was clearly
excessive in relation to the overall military advantage anticipated by OSTY.
III.

JUDGE HASTY SHOULD NOT BE DISQUALIFIED UNDER ART.41 OF THE


ICC STATUTE

43. Yunkel has sought the disqualification of Judge Hasty under Art.41, ICC Statute, alleging
bias due to certain opinions expressed by her in a publication. It is submitted that first,
Yunkel does not have the locus standi to seek such disqualification [A] and second, the
standard of bias under Art.41 is not met [B].
[A] YUNKEL HAS NO LOCUS STANDI TO SEEK SUCH DISQUALIFICATION.
44. According to Art.41(2)(b), ICC Statute, the right to request a judges disqualification is
only granted to the Prosecutor or the person being investigated or prosecuted.129
Art.19(2), ICC Statute clearly indicates a State which challenges the Courts jurisdiction
cannot be considered as the person being investigated or prosecuted. 130 Thus, Yunkel has
not be granted the right to request disqualification under Art.41, ICC Statute. In Prosecutor
v. Katanga, the Court held that the provisions on disqualification must be strictly

127

International Humanitarian Law and The Challenges of Contemporary Armed Conflicts, REPORT OF THE
INTERNATIONAL COMMITTEE OF THE RED CROSS, 03/IC/09, 11 (2003).
128

See Argument II(C).

129

Art.41(2)(b), ICC Statute.

130

Art.19(2), ICC Statute.

38

interpreted, in light of the extraordinary nature of remedy.

131

Accordingly, the Court

refused to entertain a request for disqualification from the Victims Legal Representatives,
since they were included in Art.41(2)(b), ICC Statute. Therefore, it is submitted that Yunkel
lacks the locus standi to seek such disqualification.
[B] THE STANDARD OF BIAS UNDER ART.41, ICC STATUTE IS NOT MET
45. The standard of bias for expressions of opinion under Art.41, ICC Statute envisages two
components first, an objective observer would apprehend definite bias on reading the
impugned opinion132 and second, the opinion has a sufficient link with the case at hand.133
46. Under the first component, the perspective must be that of an objective observer.

134

Further, in light of the strong presumption impartiality in favour of a Judge,135 proof of


definite bias is required. 136 Accordingly, in Prosecutor v. Omar Bashir, the Court ruled
that a judges involvement in a fact-finding mission to Darfur would not disqualify him
from participating in cases regarding that situation in Darfur, because it did not indicate a
definite bias.137 In the present case, Judge Hasty does not take an conclusive position on
the issues before the Court. It merely opines that Somali piracy may someday trigger the
Courts jurisdiction and the recruitment and use of child pirates could be tried as a crime
against humanity. 138 Even the title of her book Emerging Issues in International Criminal
Justice indicates that her opinion did not take a conclusive stance on existing law. In
Prosecutor v. Abdallah, similar general and inconclusive opinions of the Judge on the

131

Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07, Decision on Disqualification of Judge Christine Van
den Wyngaert, 45 (2008).
132

Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Disqualification of Judge SangHyun Song, 9-10 (2013).
133

Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC-02/0503/09, Decision on Disqualification of a Judge, 17 (2012).
134

Art.34(1)(d), RULES OF PROCEDURE AND EVIDENCE, ICC-ASP/1/3 (Part.II-A), 13.

135

Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on Disqualification of Judge
Sang-Hyun Song, 18 (2013); Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo
Jamus, Case No. ICC-02/05-03/09, Decision on Disqualification of a Judge, 14 (2012).
136

Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on Disqualification of Judge
Sang-Hyun Song, 17 (2012).
137

Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-76, Decision on the Request for excusal of a
Judge, 16 (2010).
138

12, The Problem.

39

actions of the African Union and South Sudan were not considered proof of definite bias
in a case concerning the two parties. 139 Therefore, Judge Hastys opinion would not cause
an objective observer to apprehend definite bias.
47. Furthermore, even the second component is not met since Judge Hastys opinion did not
have a sufficient link with the case at hand. The opinion was specifically expressed in
relation to the scourge of Somalia[n] Piracy,140 and makes no mention of the parties to
the present case. There is nothing to indicate any factual similarity between these two
instances of piracy. Therefore, it is submitted that the standard of bias under Art.41, ICC
Statute was not met by Judge Hastys opinion.


139

Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC-02/0503/09, Decision on Disqualification of a Judge, 9-10 (2012).
140

12, The Problem.

40

CONCLUDING SUBMISSIONS
Wherefore in light of the questions presented, arguments advanced and authorities cited, the
Victims Legal Representative respectfully requests this Court to adjudge and declare that:

I.

The recruitment and use of juvenile pirates by OSTY can be tried as a crime against
humanity within the jurisdiction of the International Criminal Court under Art.7 of the
ICC Statute,

II.

OSTYs cross-border contamination of Porvos water supply can constitute the war
crime under Art.8(2)(b)(iv), ICC Statute,

III.

Judge Hasty should not be disqualified under Art.41, ICC Statute.

Victims Legal Representative


41

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