TEAM: 733

THE 2016 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT

COMPETITION

THE CASE CONCERNING THE FROST FILES

STATE OF AMESTONIA/THE FEDERAL REPUBLIC OF RIESLAND

SPRING TERM 2016

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE
THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

MEMORIAL FOR THE STATE OF AMESTONIA

TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................vi
STATEMENT OF JURISDICTION..............xvii
QUESTIONS PRESENTED.............................xviii
STATEMENT OF FACTS........xix
SUMMARY OF PLEADINGS............................. xxv
PLEADINGS............... 1
1. THE DOCUMENTS PUBLISHED

ON THE WEBSITE OF

THE AMES POST

ARE ADMISSIBLE AS

EVIDENCE BEFORE THE COURT..1

A. FREDERICO FROST

DID NOT VIOLATE INTERNATIONAL

LAW

BY HANDING OVER THE

DOCUMENTS HE DOWNLOADED FROM THE BUREAUS COMPUTERS TO THE AMES POST

B. THE

DOCUMENTS

FREDERICO FROST

DOWNLOADED FROM THE

BUREAUS COMPUTERS

ARE ADMISSIBLE AS THEY WERE NOT OBTAINED UNLAWFULLY BY THE STATE OF AMESTONIA

C. THE DOCUMENTS PUBLISHED ON THE WEBSITE OF THE AMES POST ARE ADMISSIBLE AS
THEY POSSESS THE REQUISITE PROBATIVE VALUE

2. RIESLANDS MASS ELECTRONIC SURVEILLANCE PROGRAMS, REVEALED IN THE DOCUMENTS

PUBLISHED ON THE WEBSITE OF THE AMES POST, VIOLATES INTERNATIONAL LAW5
A. THE VERISMO PROGRAM IS A

CLEAR VIOLATION OF THE PROVISIONS OF THE

UNITED

NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)

B. THE VERISMO AND CARMEN PROGRAMS ARE A CLEAR VIOLATION OF THE PROVISIONS OF
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

ii

3. AMESTONIA IS ENTITLED TO AN ORDER DIRECTING THE IMMEDIATE CESSATION OF THE

PROGRAMS REFERRED TO IN THE DOCUMENTS PUBLISHED ON THE WEBSITE OF THE
AMES POST WITH ASSURANCES OF NON-REPETITION. ..9
4. AMESTONIAS ARREST OF MARGARET MAYER, THE TWO VOR EMPLOYEES
SEIZURE

AND

FORFEITURE

OF THE

AND

THE

VOR EQUIPMENT, DOES NOT VIOLATE THE

BROADCASTING TREATY OR AMESTONIAS INTERNATIONAL LAW OBLIGATIONS..10

A. AMESTONIAS ARREST OF MARGARET MAYER,

THE TWO

VOR EMPLOYEES AND THE

SEIZURE AND FORFEITURE OF VOR EQUIPMENT DOES NOT VIOLATE THE

BROADCASTING TREATY
B. AMESTONIAS ARREST OF MARGARET MAYER, THE TWO VOR EMPLOYEES AND THE
SEIZURE AND FORFEITURE OF VOR EQUIPMENT DOES NOT VIOLATE AMESTONIAS
INTERNATIONAL LAW OR TREATY OBLIGATIONS
5. RIESLAND IS NOT ENTITLED TO COMPENSATION FOR THE SEIZURE AND FORFEITURE OF ITS
EQUIPMENT, NOR THE RELEASE OF ITS NATIONALS, MARGARET MAYER AND THE TWO VOR
EMPLOYEES..15

6. THAT THE DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM ACT VIOLATES
INTERNATIONAL LAW..16
6.1THAT RIESLAND IS IN VIOLATION OF INTERNATIONAL LAW IN APPREHENDING
JOSEPH KAFKER.
6.1.1 THE RESPONDENT STATE HAS VIOLATED APPLICANTS SOVEREIGNTY
THROUGH AN UNLAWFUL INTERVENTION.
6.1.2 THE PRINCIPLE OF AUT DEDERE AUT JUDICARE DOES NOT APPLY AS NO
CRIME TRIGGERING UNIVERSAL JURISDICTION WAS COMMITTED.
6.1.2.1NO ACT OF TERRORISM WAS COMMITTED
6.1.2.2 NO CRIME AGAINST HUMANITY WAS COMMITTED.
6.1.2.3NONE OF THE HIVES ACTS CONSTITUTE A GRAVE BREACH OF THE GENEVA
CONVENTION
iii

6.2 THAT THE DETENTION OF KAFKER VIOLATED INTERNATIONAL LAW

6.2.1THAT THE DETENTION OF KAFKER WAS ARBITRARY
6.2.2 KAFKERS DETENTION WAS CONSTITUTES AN ACT OF CRUEL, INHUMANE
OR DEGRADING TREATMENT.
6.2.3 THE STATE OF RIESLAND VIOLATED PROVISIONS OF THE ICCPR
6.3 THE PROSECUTION OF JOSEPH KAFKER BY THE NATIONAL SECURITY TRIBUNAL IS
VIOLATIVE OF STANDARDS OF DUE PROCESS IN THE INTERNATIONAL HUMAN RIGHTS
REGIME.
6.3.1 THE NATIONAL SECURITY TRIBUNAL VIOLATES THE STANDARD OF AN
INDEPENDENT AND IMPARTIAL FORUM.
6.3.2 THE TERRORISM ACT VIOLATES THE RIGHT TO A FAIR TRIAL.
6.3.2.1 THE RULES OF THE NATIONAL SECURITY TRIBUNAL VIOLATE THE RIGHT
REGARDING CONFRONTATION OF WITNESS AND PRODUCTION OF EVIDENCE.
6.3.2.2 THE NATIONAL SECURITY TRIBUNAL VIOLATES THE RIGHT TO COUNSEL OF
ONES OWN CHOICE.
6.3.3 THAT THE DECLARATION OF A TERRORISM ALERT DOES NOT
CONSTITUTE VALID GROUNDS FOR DEROGATION OF THE ICCPR
6.3.3.1 THERE IS NO PUBLIC EMERGENCY THREATENING THE LIFE OF THE NATION.
6.3.3.2 THE DEROGATION MEASURES ARE NOT PROPORTIONATE AND NECESSARY.
7. THAT AMESTONIA IS ENTITLED TO KAFKERS IMMEDIATE RELEASE, THE DISCLOSURE OF
ALL THE INFORMATION WHICH FORMED THE BASIS OF HIS APPREHENSION, AND THE
PAYMENT OF COMPENSATION FOR HIS DETENTION.28
8. THAT THE CYBER-ATTACKS AGAINST THE COMPUTER SYSTEMS OF THE AMES POST AND
CHESTER & WALSINGHAM ARE ATTRIBUTABLE TO RIESLAND, AND CONSTITUTE AN
INTERNATIONALLY

WRONGFUL

ACT

FOR

WHICH AMESTONIA

IS

ENTITLED

TO

COMPENSATION..29
iv

8.1 THAT THE HACKING OF THE AMES POST AND CHESTER AND WALSINGHAM AND
DESTRUCTION OF INFRASTRUCTURE CONSTITUTE AN UNLAWFUL USE OF FORCE IN
THE FORM OF A CYBER ATTACK.
8.2 THE CYBER ATTACK HAS BREACHED AMESTONIAS SOVERIGNITY.
PRAYERxxvi

INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS

Fourth Geneva Convention 1949

24

International Covenant on Civil and Political Rights

Rome Statute of the International Criminal Court

3,15

Third Geneva Convention 1949

22

Vienna Convention on the Law of Treaties

Vienna Convention on the Law of Treaties

15, 16

Convention Against Torture and other Cruel Inhumane or 32

Degrading Treatment or Punishment 1984

vi

U.N. RESOLUTIONS AND OTHER DOCUMENTS

Declaration on Principles in International Law, G.A. Res.

34

2625(XXV).
Declaration on Principles of International Law Concerning

24

Friendly Relations and Cooperation Among States in

Accordance with the Charter of the United Nations, G.A. Res.
2625(XXV), GAOR, 25th Sess., Supp.No. 28, at 121, U.N.
Doc.A/8082, 1970;
UN Basic Principles on Remedy and Reparation, paras 18-23;

26

Human Rights Committee, General Comment No 31;

Articles on State Responsibility, G.A. Res. 56/83, art.20, U.N.

32

GAOR, 56th Sess., Annex, Agenda Item 162 at 3, U.N.

Doc.A/RES/56/83 (2001);
G.A. Res. 38/7, U.N. GAOR, 38th Sess., Supp.No. 47, at 19,

22

U.N. Doc.A/RES/38/7 (1983);

G.A. Res. ES-6/2, U.N. GAOR, 6th Emerg.Sp.Sess., Supp.No.
1, at 2, U.N. Doc.A/RES/E-6/ (1980);

vii

35

OTHER INTERNATIONAL INSTRUMENTS AND MATERIALS

Committee against Torture, General Comment no 3, UN Doc

22

CAT/C/GC/3 (13 December 2012)

H.R. Comm., Concluding Observations on Syrian Arab

35

Republic, 6, U.N. Doc.CCPR/CO/71/SYR (2001); H.R.

Comm., Concluding Observations on Egypt, 6, U.N.
Doc.CCPR/CO/76/EGY (2002).
H.R. Comm., Concluding Observations on Syrian Arab

15

Republic, 6, U.N. Doc.CCPR/CO/71/SYR (2001); H.R.

Comm., Concluding Observations on Egypt, 6, U.N.
Doc.CCPR/CO/76/EGY (2002).
H.R. Comm., General Comment 20: Article 7, 4, U.N.
Doc.HRI/GEN/1/Rev.1 at 30 (1994).

15

H.R. Comm., General Comment 29: States of Emergency

18

(Article 4), 11, U.N. Doc.CCPR/C/21/Rev.1/Add.11 (2001).

H.R. Comm., General Comment 29: States of Emergency

34

(Article 4), 11, U.N. Doc.CCPR/C/21/Rev.1/Add.11 (2001).

H.R. Comm., General Comment 29: States of Emergency

17

(Article 4), 11, U.N. Doc.CCPR/C/21/Rev.1/Add.11 (2001).

UN Working Group on Arbitrary Detention Scope of Remedies 12,13
upon a Sucessful challenge to arbitrary detention (Global
Consultation on the right to challenge detention, September
2014, Geneva)
viii

UN Working Group on Arbitrary Detention Scope of Remedies 19

upon a Sucessful challenge to arbitrary detention (Global
Consultation on the right to challenge detention, September
2014, Geneva)

ix

STATUTES AND LEGISLATIONS

Broadcasting Treaty 1992

26

Terrorism Act 2003

23

CASES

Al-Nashif v. Bulgaria, App.No. 50963/00 (unreported)

25,3

Attorney-General v. Eichmann, 36 I.L.R. 5

Avena & Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J.

5, 13

12, 3
Bangladesh/Myanmar, ITLOS Case No 16

12

Can Garca v. Ecuador 319/1988

12

Corfu Channel (UK vAlb), 1949 ICJ 4

15

Cyprus v. Turkey, App.No. 25781/94, 2001-IV Eur.Ct.H.R. 7

(2001).

El-Megreisi v Libyan Arab Jamahiriya, Communication no

23

440/1990 (United Nations 1994 CCPR/C/50/D/440/1990);

Embga Mekongo Louis v Cameroon, Communication 59/91,

25

decided 22 March 1995

Estrella v. Uruguay, Comm.74/80, U.N. Doc.CCPR/C/OP/2 23
(1990).

xi

Factory at Chorzw (Germ. v. Pol.) (Claim for Indemnity)

23.24

(Jurisdiction), 1927 P.C.I.J

Findlay v. United Kingdom, App.No. 2107/93, 24 E.H.R.R. 221

Incal v. Turkey, App.No. 22678/93, 449 E.H.R.R. 316, 323

13

(2000);
Island of Palmas (Netherlands v USA) 2 R.I.A.A. 829, 838 {PCIJ 27
1928)

Kelly v. Jamaica, Comm.235/87, U.N.

22

Doc.CCPR/C/41/D/253/1987 (1991);
LaGrand Case (Germ. v. U.S.), Provisional Measures Order,

1999 I.C.J. 9
Laureano v. Peru, Comm.540/1993, U.N.

Doc.CCPR/C/56/D/540/1993 (1996);
Loayza Tamayo v. Peru, 1997 Inter-Am.Ct. H.R. (ser.C) No. 33,

32, 26

at 57 (1997).
Lopez

Burgos

v.

Uruguay,

Comm.52/1979,

Doc.CCPR/C/13/D/1979 (1981)

xii

U.N. 19

Mavrommatis Jerusalem Concessions (Greece v. U.K.),

12

Military and Paramilitary Activities, 1986 ICJ 14

33

Oviedo v. Paraguay, Case 12.013, Report No.88/99

31

Peart v. Jamaica, Comm. Nos.464/1991 & 482/1991, U.N. 16

Doc.CCPR/C/54/D/464/1991 & 482/1991 (1995).

Polay Campos, Comm.577/1994, U.N.

23

Doc.CCPR/C/61/D/577/1994 (1998).

Prosecutor v. Delali, Case No.IT-96-21-T, 439 (1998).

23

Regina v. Horseferry Road Magistrates Court, ex parte

Bennett, [1994] 1 A.C. 42.

Shaw v. Jamaica, Comm.704/1996, U.N.

Doc.CCPR/C/62/D/704/1996 (1998).
Spanish Zone of Morocco, 2 RIAA 615, 641

Tomasi v. France, App.No. 12850/87, 15 E.H.R.R. 1 (1992).

17

Union Bridge Company (1924) 6 RIAA 138

xiii

United States Diplomatic and Consular Staff in Tehran (US v

32

Iran), 1980 ICJ 3, 9-10

United States v. Alvarez-Machain, 504 U.S. 655. 902 (1992);

31

Velasquez Rodriguez case, Inter-Am Ct.H.R (29 July 1988);

21

Velez Loor v Panama

25

Weber & Saravia v. Germany, 2006-XI Eur. Ct. H.R. 309

12

xiv

BOOKS, ARTICLES, JOURNALS AND TREATISES

Bantekas & Nash, International Criminal Law 91 (2007).

12

Bassiouni & Wise, Aut Dedere Aut Judicare: The Duty To

12

Extradite Or Prosecute In International Law 3 (1995);

D.J. Harris, Cases And Materials On International Law 299

21

(2004
Duffy, The War On Terror And The Framework Of

21

International Law 100 (2005);

12
Ian Brownlie, Principles Of Public International Law (2003)
32
Ian Brownlie, Principles Of Public International Law (2003)
Kalliopi Koufa, Specific Human Rights Issues: New Priorities,

23

In Particular Terrorism, Additional Progress Report, 44, U.N.

Doc.E/CN.4/Sub.2/2003/WP.18 (2003).
Lori Damrosch, et al., International Law: Cases And Materials

23

1177 (2001).
24
Louis Henkin, International Law Cases And Materials (1993);
24
Louis Henkin, International Law Cases And Materials (1993);
11
Malcom N Shaw, International Law (2003);

xv

23
Malcom N Shaw, International Law (2003);
1
Oscar Schacter, International Law in theory and pactice (1993);
Rosalyn Higgins, Problems and Process: International Law and

how we use it (1994).

Sarah Joseph Seeking Remedies For Torture Victims: A

Handbook on the Individual Complaints Procedures of The UN

Treaty Bodies 158 (2006).
Sarah Joseph, Et Al., The International Covenant On Civil And

Political Rights: Cases, Materials And Commentary 308 (2004).

Shaukat Qadir, The Concept of International Terrorism: An

Interim Study of South Asia in ROUND TABLE 333-39

(2001);
Thomas M. Franck, Preliminary Thoughts Towards an

International Convention on Terrorism, 68 A.J.I.L. 69 (1974).

W.M. Reisman, The Resistance in Afghanistan is Engaged in a
War of National Liberation, 81 A.J.I.L. 906 (1987);

xvi

STATEMENT OF JURISDICTION

The State of Amestonia and the Federal Republic of Riesland have submitted the present dispute
concerning the Frost Files, to the International Court of Justice by Special Agreement
(Compromis), dated 1 September 2015 pursuant to Article 40(1) of the Court's Statute. Both parties
have thus accepted the ad hoc jurisdiction of the Court in accordance with Article 36(1) of the
Court's Statute. Both parties shall accept the judgment of this Court as final and binding and
execute it in good faith in its entirety.

xvii

QUESTIONS PRESENTED
I.

Whether the documents published on the website of The Ames Post are admissible as
evidence before the Court.

II.

Whether Rieslands mass electronic surveillance programs against Amestonian public

figures and nationals, revealed in the documents published on the website of The Ames
Post, violates international law.

III.

Whether Amestonia is entitled to an order directing the immediate cessation of the

programs referred to in the documents published on the website of The Ames Post with
assurances of non-repetition.

IV.

Whether Amestonias seizure and forfeiture of the VoR station and its equipment, and the
arrest of Margaret Mayer and the two VoR employees violates the Broadcasting Treaty and
its international law obligations.

V.

Whether Riesland is entitled to compensation for the seizure and forfeiture of the VoR
station and its equipment, and the immediate release of its nationals, namely Margaret
Mayer and the two VoR employees.

VI.

Whether the detention of Joseph Kafker under the Terrorism Act violates international law.

VII.

Whether Amestonia is entitled to Kafkers immediate release, the disclosure of all the
information which formed the basis of his apprehension, and the payment of compensation
for his detention.

VIII.

Whether the cyber-attacks against the computer systems of The Ames Post and Chester &
Walsingham are attributable to Riesland, and constitute an internationally wrongful act for
which Amestonia is entitled to compensation.

xviii

STATEMENT OF FACTS
Riesland and Amestonia are neighboring states; despite the fact that relations between the
two neighbors were largely positive, Rieslands Secret Surveillance Bureau (the Bureau) has
been engaged in covert activities and intelligence collection on Amestonia for several years. The
Bureau derives its legitimacy from the Secret Surveillance Bureau Act (SSBA) which grants the
Director the power to authorize electronic surveillance to acquire foreign intelligence.
The Frost Files and the Verismo Program
On 16 December 2014, Frederico Frost, a Rieslandic national who is a former intelligence
analyst at the Bureau, met with lawyers from the firm Chester & Walsingham and handed over a
USB drive containing 10,000 documents labeled top secret, documents that he had secretly
downloaded from the Bureaus computers. On 18 December 2014, Frost, accompanied by lawyers
from Chester & Walsingham who were now representing him, handed over a copy of the USB
drive to two reporters from The Ames Post newspaper and asked them to publish the contents on
their website, which they duly did in January and February 2015. One of the documents published
on 23 January 2015, which was titled The Verisomo Program, bore the signature of the Bureaus
Director Tom Sivaneta and detailed an operation overseen by him, whereby a pod was installed on
an undersea fiber optic cable which formed the backbone of Amestonias international internet and
telecommunications traffic; 1.2 million gigabytes of data were collected .
The Actions of VoR and its Employees
Another agreement that was signed (on 4 March, 1992) and ratified by both nations was
the Treaty on The Establishment of Broadcasting Facilities (the Broadcasting Treaty) pursuant
to which each state was permitted to build, staff, and operate a television station in the others
xix

territory. In accordance with the Broadcasting Treaty, Riesland established a new division of the
Riesland National Television Corporation, The Voice of Riesland (VoR), to operate in
Amestonia, with the inaugural program broadcast from its station in Amestonia on 22 December
1992. One of the most popular programs on VoR was the talk show Tea time with Margaret
hosted by Margaret Mayer, a Rieslandic national, who interviewed a number of Amestonian
politicians, public figures and businessman. Documents published on the website of The Ames
Post on 16 February 2015 revealed that Bureau engineers, who doubled as VoR employees,
participated in The Carmen Program, whereby they hacked into the phones of over 100 guests
who visited the show.
On 16 February 2015, when the police reached the VoR premises in execution of a warrant,
they found the station abandoned, and they promptly catalogued the broadcasting equipment as
well other devices and documents before their removal and subsequent forfeiture. At 3:15 am on
17 February 2015, the commander of the police unit investigating VoR was granted a warrant for
the arrest of Margaret Mayer and two other VoR employees who had been caught on a train that
was bound for Riesland. All three were charged with espionage and denied bail on the ground that
they were a flight-risk.
The Detention of Joseph Kafker
Joseph Kafker, a 70 year old Amestonian politician was arrested at a law school in Riesland
on 7 March 2015 by the Rieslandic police for commiting offences under Rieslands Terrorism Act
and, three days later (10 March), was produced before the National Security Tribunal. Kafker was
represented before the Tribunal by an advocate chosen from a special panel, which ruled that all
material related to Kafkers detention, was classified and did not allow him to consult or speak
with his lawyer. After listening to officers of the Bureau testifying before them regarding the need
xx

to detain Kafker, the Tribunal authorized his further detention, with Kafker still being detained
without charge in a maximum-security facility. On 12 March 2015, the Foreign Minister of
Riesland rejected a request from his Amestonian counterpart for Kafkers immediate release,
stating that the Tribunals ruling had to be adhered to as Kafkers release would endanger
Rieslands national security.
On 17 March 2015, a memorandum sourced from Frosts USB drive was published on The
Ames Post website and revealed that Kafker was considered a high-level suspect with ties to The
Hive, a group of environmentalists that was waging a concerted campaign against Rieslandic
companies for producing neuro-active insecticides (neonics). Several violent actions were
carried out, with warehouses in Amestonia being set on fire causing extensive damage to the health
of the local population in addition to an estimated loss of 75 million euros, followed by threats to
the trade and agriculture ministries in both Riesland and Amestonia in the form of letters
accompanied with white powder, that was determined to be a non-toxic variant of a neonic,
concealed in envelopes. Thanks to a tip-off from the Bureau, Amestonian authorities were able to
foil a potential attack by Amestonian environmental activists who had been plotting to contaminate
a large shipment of honey, intended for consumption in Riesland, with a chemically-altered and
toxic neonic which could potentially cause serious bodily injury to anyone handling or inhaling
it. The Attorney General of Riesland refused to comment on the questions raised by the media
linking Kafker to the attacks, but he did confirm that Riesland was in possession of closed
materials that directly link Kafker to The Hives senior echelons.
Cyber-attacks on The Ames Post and Chester & Walsingham
On 22 March 2015, the computer networks and communications systems at both The Ames
Post and Chester & Walsingham were subject to a cyber-attack, with experts from the Amestonian
xxi

Institute of Technology tracing the source of the attacks to Rieslandic governmental computer
infrastructures. The damage from the attacks was an estimated 45-50 million euros, with The Ames
Post having to shut down operations for 3 months and court proceedings before the Amestionian
courts being delayed due to Chester & Walsinghams inability to accesss its files. On 1 April 2015,
the President of Amestionia denounced the attacks, placing the blame squarely at the feet of
Riesland, but on 5 April 2015 the Attorney General of Amestonia refused to respond to these
allegations.
International Adjudication
In light of growing international pressure, Riesland and Amestonia agreed to refer all
matters in dispute to the International Court of Justice, and in furtherance of this purpose drafted
and signed a Special Agreement. Riesland, however reserved its objections to the admissibility of
information derived from any confidential documents that may have been provided to The Ames
Post by Frost. The parties agreed that the issue of the admissibility of the documents would be left
for the Court to resolve.
Amestonia and Riesland are both members of the United Nations, and are parties to the
Statute of the International Court of Justice; the Vienna Convention on the Law of Treaties; the
International Covenant on Civil and Political Rights; the International Covenant on Economic,
Social, and Cultural Rights; the Vienna Convention on Diplomatic Relations; the Vienna
Convention on Consular Relations; the International Convention for the Suppression of Terrorist
Bombings; and the International Convention for the Suppression of the Financing of Terrorism.
Neither state has made any reservations, declarations or understandings with regard to any of these
treaties. Amestonia and Riesland are not parties to any other bilateral or multilateral treaty of
potential relevance.
xxii

SUMMARY OF ARGUMENTS

PLEADING 1
There is no rule of international law prohibiting leaks of confidential information and
Riesland cannot invoke its domestic law to deny the admissibility of the documents published on
the website of The Ames Post. Amestonias claim relies on the fact that Riesland engaged in
surveillance programs that violated international law, which is evidenced (not created), by the
document, which Frost leaked; thus the documents are admissible as they were not obtained
unlawfully by the State of Amestonia. It is submitted, therefore, that the Court admit the documents
published on The Ames Post website into evidence, as the original documents are in the exclusive
control of Riesland and no contrary direct evidence has been produced to disprove their veracity.
PLEADING 2
By installing a pod aimed at collecting intelligence on Amestonias citizens in its own EEZ
resulting in interference with the communication systems of Amestonia, Riesland did not display
due regard for the rights and duties of Amestonia, thereby violating Article 56 and 58 of the
UNCLOS. Furthermore, the interception of each and every communication emanating from
Amestonia leading to bulk collection of information is a violation of Article 17 of the ICCPR (right
to privacy), as it is an arbitrary and disproportionate interference with privacy.

xxiii

PLEADING 3
Amestonia is entitled to an order of cessation from this Court and an assurance of nonrepetition from Riesland, as Rieslands obligation to bring an end to its violations of the ICCPR
and UNCLOS is still a continuing obligation.
PLEADING 4
As the acts of espionage for which Mayer and the two employees were arrested in no way
relate to the stations functions and constituted a grave crime under Article 41 (1) of the VCCR,
they enjoy no immunity from criminal prosecution; their arrest in no way violates the provisions
of the Broadcasting Treaty or the VCCR. Under Article 31 (2) of the VCCR, the entirety of the
VoR premises, including The Opera Room was not used for the purpose of the work of the
station exclusively, but to engage in espionage as well, Amestionian authorities had every right to
enter the premises without the consent of Margaret Mayer.
PLEADING 5
As Amestionia has complied with the provisions of the Broadcasting Treaty and its
international obligations, there is no question of compensation or repatriation of Mayer or the
employees.

PLEADING 6
The unlawful and prolonged detention of Joseph Kafker has in the first instance illustrated an
illegal exercise of jurisdiction by Riesland and further in substantive law been proven to be

xxiv

unlawful due to several substantive breaches of the ICCPR in relation to the liberty of the accused
and substantive rights in terms of dignity of the being.
Further the treatment of Kafker has been shown to be cruel and inhumane due to the prolonged
nature of his detention. It has been established that the court process was unfai.
PLEADING 7
The remedies of compensation and releasing of evidence are justified.
PLEADING 8
The cyber-attack was illegal since it was an unlawful use of force and a breach of Amestonias
Sovereignty. Additionally the systems used for the Cyber-attack were under the effective control
of Riesland, therefore the attack is attributable to the state of Riesland.

xxv

PLEADINGS

1.

THE DOCUMENTS PUBLISHED ON THE WEBSITE OF THE AMES POST ARE ADMISSIBLE
AS EVIDENCE BEFORE THE COURT.
A. FREDERICO FROST DID NOT VIOLATE INTERNATIONAL LAW BY HANDING OVER THE
DOCUMENTS HE DOWNLOADED FROM THE BUREAUS COMPUTERS TO THE AMES POST
It is submitted that the documents published on the website of The Ames Post are

admissible as Frost did not violate international law. There is no rule of international law
prohibiting leaks of confidential information1 and Riesland cannot invoke its domestic law to deny
the admissibility of the documents published on the website of The Ames Post2. The International
Criminal Court, in interpreting the Rome Statute has clearly held that a violation of state law will
not be determinative of whether evidence is admitted before the ICC unless that violation is also a
violation of international law3. Further, applying the ruling of this Court in the landmark Avena4
and LaGrand5cases, it is submitted that Riesland cannot invoke its domestic prohibition on leaking
information as a defense against the formation or evidence of a rule of international law. States

See William Thomas Worster, The Effect of Leaked Information on the Rules of International

Law (2013) 28 American University International Law Review 449.

2

Vienna Convention on the Law of Treaties, Art. 27, May 23, 1969, 1155 U.N.T.S. 331

Rome Statute of the International Criminal Court, art 69(7)

Avena & Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 3 (Mar. 31)

LaGrand Case (Germ. v. U.S.), Provisional Measures Order, 1999 I.C.J. 9, 16, 28 (Mar. 3)
1

tend to protect only their own information and there is no rule of customary international law
generally prohibiting individuals from leaking information6.
B. THE DOCUMENTS FREDERICO FROST DOWNLOADED FROM THE BUREAUS COMPUTERS
ARE ADMISSIBILE AS THEY WERE NOT OBTAINED UNLAWFULLY BY THE STATE OF
AMESTONIA
Assuming that Frost acted unlawfully in downloading and disseminating the documents
from the Bureaus computers, the mandatory exclusionary rule for evidence gathered unlawfully
does not appear to exist under international law7. Even if it is assumed that such a rule exists under
the maxim ex turpi causa non oritur actio (Latin for from a dishonorable cause an action does
not arise), the State of Amestonia, which is the applicant in these proceedings, played no role
whatsoever in the procurement and publication of the documents on The Ames Post website. The
principal reason is that a right, advantage, or property must be acquired by the wrongdoer in order
to invoke ex turpi. In the present case, the information was leaked by Frost, who is a government
employee; applying the ruling in the Mavrommatis8 case, the information could still be used by a
third party, such as a state like Amestonia, for proving the law.9
Amestonia is not relying on the act of leaking information to establish any claim or right,
but rather on the content of the leak itself. Amestonias claim relies on the fact that Riesland

See VCLT Art.27

See the majority opinion of Justice Felix Frankfurter in Wolf v. Colorado, 338 U.S. 25 (1949)

citing decisions of the United Kingdom, Australia, Canada, Scotland and India.
8

Mavrommatis Jerusalem Concessions (Greece v. U.K.), 1925 P.C.I.J. (ser. A) No. 5 (Mar. 26).

Factory at Chorzw (Germ. v. Pol.) (Claim for Indemnity) (Jurisdiction), 1927 P.C.I.J. (ser. A)

No. 9, at 31 (July 26)

2

engaged in surveillance programs that violated international law, which is evidenced (not created),
by the document, which was leaked. Thus, there is no reliance on Frederico Frosts act of leaking
to establish their claim against Riesland. It is therefore submitted that the documents are admissible
as they were not obtained unlawfully by the State of Amestonia.
C. THE DOCUMENTS PUBLISHED ON THE WEBSITE OF THE AMES POST ARE ADMISSIBLE AS
THEY POSSESS THE REQUISITE PROBATIVE VALUE
This Court held in the Corfu Channel10 case that exclusive territorial control exercised by
a State within its frontiers has a bearing upon the methods of proof available to establish the
knowledge of that State as to events in question in a dispute. This Court stated that by reason of
this exclusive control, the other State, the victim of a breach of international law, is often unable
to furnish direct proof of facts giving rise to responsibility. Such a State, held the Court, should be
allowed a more liberal recourse to inferences of fact and circumstantial evidence11. Further, this
Court has repeatedly held that it will permit liberal reliance on circumstantial evidence so long as
two conditions are met: (1) the direct evidence is under the exclusive control of the opposing party;
and (2) the circumstantial evidence does not contradict any available direct evidence or accepted
facts12.
Both of these conditions are satisfied in the present case. Firstly, the original copies of the
documents that Frost downloaded from the Bureaus computers are within the exclusive control

10

Corfu Channel (UK vAlb), 1949 ICJ 4 (Apr 9, 1949)

11

Id. at 11.

12

Id; See Michael Scharf and Margaux Dat, The International Court of Justices Treatment of

Circumstantial evidence and Adverse Inferences (2012) 13 Chicago Journal of International Law
123.
3

of Riesland. The contents of these documents furnish proof that establishes Riesland breached its
international obligations by engaging in mass surveillance of Amestonian citizens
communications (see infra). Amestonia has been able to obtain copies of these documents from
the website of The Ames Post and has no choice but to rely on these copies to prove its claims as
Riesland has refused to produce the original documents. Secondly, the evidence of Rieslands
wrongdoing does not in any way contradict the available direct evidence and accepted facts in the
compromis. Frost, who was a part of the Bureaus eco-terrorism working group and had full access
to Rieslands intelligence operations in Amestonia, himself admits to taking part in the surveillance
programs authorized by the Bureaus Director Tom Sivaneta. Rieslands Foreign Minister sent a
diplomatic note asking for Frosts extradition to stand trial in Riesland and the return of the
documents published on The Ames Post website, all of which bolsters the argument that the
documents are authentic and accurate. Further, Rieslands Prime Minister has issued a statement
acknowledging the existence of the surveillance programs referred to in the documents and an
article in the Sydney Morning Herald reported public concern in the international community on
the legality of Rieslands mass surveillance programs.
These reports and documents constitute indirect evidence which is admitted in all systems
of law and its use is recognized by international decisions. In the Military and Paramilitary
Activities13 case, parties submitted various types of documents including reports in press articles
and extracts from books from various sources as evidence. Relying on the Diplomatic and
Consular Staff14 case, this Court determined that it could use public knowledge to declare that it

13

Military and Paramilitary Activities, 1986 ICJ 14.

14

United States Diplomatic and Consular Staff in Tehran (US v Iran), 1980 ICJ 3, 9-10 T$ 12-13

(May 24,
4

was satisfied that the allegations of fact were well-founded and held that pervasive reports of a
fact, although not primary evidence of that fact, can be relied upon to establish the existence of
that fact. Thus, the documents published on the website of The Ames Post and the agreed facts in
the compromis must be given special weight as it is based on a series of facts linked together and
leading logically to a single conclusion, namely that the mass surveillance programs were
conducted by Riesland. It is submitted, therefore, that the Court admit the documents published on
The Ames Post website into evidence, as the original documents are in the exclusive control of
Riesland and no contrary direct evidence has been produced to disprove their veracity.
RIESLANDS MASS ELECTRONIC SURVEILLANCE PROGRAMS, REVEALED IN THE

2.

DOCUMENTS PUBLISHED ON THE WEBSITE OF THE AMES POST, VIOLATES

INTERNATIONAL LAW
C. THE VERISMO PROGRAM IS A CLEAR VIOLATION OF THE PROVISIONS OF THE UNITED
NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)
One of the documents, published on 23 January by The Ames Post and headed The
Verismo Program, detailed a May 2013 operation in which a waterproof recording pod was
installed on the undersea fiber optic cable that was the primary backbone for Amestonias
international internet and telephone communications traffic. Rieslands installation of the pod for
the purposes of espionage and intelligence collection is a clear violation of the United Nations
Convention on the Law of the Sea (UNCLOS)15. Article 88 of UNCLOS states that the high seas

1980).
15

United

Nations

Convention

on

the

Law

of

the

Sea

Current

<http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm>
accessed 13 January 2015.
5

Status

shall be reserved for peaceful purposes and Riesland clearly violated this article when it installed
the pod for intelligence gathering, even though the part of the cable where the pod was installed
was located in its exclusive economic zone (EEZ).
UNCLOS Article 56 establishes the substantive regime of the EEZ. Riesland has the
sovereign rights for the economic exploitation and exploration of all resources in the EEZ, and
also has jurisdiction over artificial islands and installations (in this case the fiber optic cable),
marine scientific research, and the protection and preservation of the marine environment.16
Article 58, permits maritime states to engage in other internationally lawful uses of the sea related
to these freedoms, such as those associated withsubmarine cables and pipelines, and compatible
with the other provisions of this Convention.17 In addition to conducting internationally lawful
activities within the EEZ, Riesland is obliged to give due regard to the rights and duties of other
states and must act in a manner compatible with UNCLOS provisions18, which it has not done
in the present case by engaging in spying.
Rieslands act of gathering information, though conducted in its own EEZ, is nevertheless
an act aimed at interfering with the systems of communication of Amestonia,, something which
Article 19 of UNCLOS expressly prohibits if carried out by a foreign ship . While Article 19
applies to the actions of a foreign ship aimed at the coastal state, there is no reason why the same
reasoning cannot be extended to actions of the coastal state towards a foreign state with the use of
device like a waterproof recording pod on its own territory or its EEZ; technological advances now

16

Id.

17

Id.

18

See Jing Geng, The Legality of Foreign Military Activities in the Exclusive Economic Zone

under UNCLOS (2012) 28 Utrecht Journal of International and European Law 22

6

allow states to conduct espionage against other states without actually penetrating the territory or
airspace of those other states19. Thus, by installing a pod aimed at collecting intelligence on
Amestonias citizens in its own EEZ resulting in interference with the communication systems of
Amestonia, Riesland did not display due regard for the rights and duties of Amestonia, thereby
violating Article 56 and 58 of the UNCLOS addition to its other treaty obligations (Article 17
ICCPR; infra)20.
D. THE VERISMO AND CARMEN PROGRAMS ARE A CLEAR VIOLATION OF THE PROVISIONS
OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)
The International Covenant on Civil and Political Rights, ratified by both Amestonia and
Riesland, provides a right to privacy in article 17, stating that no one shall be subjected to arbitrary
or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful
attacks on his or her honour and reputation21. It further states that everyone has the right to the
protection of the law against such interference or attacks. ICCPR Article 2(1) states, Each State
Party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant . . . . 22 As
former U.S. State Department official Ashley Deeks has pointed out, the United States has long
interpreted the ICCPR not to apply extraterritorially, because the U.S. government reads Article 2

19

Ashley Deeks, An International Legal Framework for Surveillance (2015) 55 Virginia Journal

of International Law 291

20

Bangladesh/Myanmar, ITLOS Case No 16, 471

21

International Covenant on Civil and Political Rights art. 17(1), adopted Dec. 16, 1966, 999

U.N.T.S. 171
22

Id.
7

as limiting the treaty to activity within U.S. territory. This is a minority view.23 The Human Rights
Committee, the ICCPR treaty body which provides guidelines on the interpretation of covenant
provisions, has emphatically stated that the States obligation not to violate an individuals right
to privacy has extraterritorial operation and foreign surveillance implicates the ICCPR24.
Riesland is violating the right to privacy of Amestonian nationals as the Verisomo program
is both arbitrary and unlawful. As held in the case of Weber25, the interference must be necessary
in the circumstances of the case and proportional to the end sought, and the surveillance must be
conducted under specific and clearly defined laws. That being said, Riesland is in violation of its
own domestic law on privacy, namely the SSBA, which prohibits the authorization of electronic
surveillance by the Bureaus Director whenever there is a substantial likelihood that information
acquired thereby will include any communication to which a national of Riesland is a party. By
installing a pod on the fiber optic cable which forms the backbone of Amestonias
telecommunications system, there is a substantial likelihood that the information gathered included
communications to which a Rieslandic national was a party. Further, as the phone of David
Cornwell, Amestonias Ambassador to Riesland was hacked, the Bureau violated Rieslandic law
as there is a more than substantial likelihood that the information recovered from the Ambassadors
phone included communication to which a Rieslandic national was a party. Furthermore, the
installation of a pod on a cable that intercepted each and every communication emanating from

23

Deeks at 305; Cf. Beth Van Schaack, The United States Position on the Extraterritorial

Application of
Human Rights Obligations: Now Is the Time for Change, 90 INTL L. STUD. 20 (2014)
24

Human Rights Comm., Concluding Observations on the Fourth Periodic Rep. of the United

States, 22, U.N. Doc. CCPR/C/USA/CO/4 (Apr. 23, 2014)

25

Weber & Saravia v. Germany, 2006-XI Eur. Ct. H.R. 309, 332
8

Amestonia leading to bulk collection of information is inherently an arbitrary and disproportionate

interference with privacy, no matter what the object of the surveillance.
It is therefore submitted that, as there is an extra-territorial right to privacy under Article
17 ICCPR, Riesland is clearly in breach of this right.
3.

AMESTONIA IS ENTITLED TO AN ORDER DIRECTING THE IMMEDIATE CESSATION OF

THE PROGRAMS REFERRED TO IN THE DOCUMENTS PUBLISHED ON THE WEBSITE OF
THE AMES POST WITH ASSURANCES OF NON-REPETITION.

It is a principle of international law that any breach of an obligation under a treaty or other
instruments entails the responsibility to make reparation26. This Court has stated that reparation is
the indispensable complement of a failure to apply a convention; there is no necessity for this to
be stated in the convention itself27. As demonstrated earlier, the State of Riesland is guilty of an
intentionally wrongful act and is in breach of its state responsibility under the ICCPR, by violating
Article 17 of the charter, and UNCLOS, by violating Articles 56 and 58 of the instrument. Riesland
cannot claim that the act was carried out by the Bureau in violation of Rieslands domestic law
(SSBA), as in the Union Bridge Company28 case this Court has clearly held that the State is held
responsible for an ultra vires act of their officials committed within their apparent and/or general
scope of authority. Further, Riesland cannot plead its own law or constitution, in answer to an
international claim. Article 4 of The International Law Commission (ILC) Articles on
Responsibility of States for Internationally Wrongful Acts of 2001 (ARSIWA) clarifies this. As

26

Spanish Zone of Morocco, 2 RIAA 615, 641

27

Factory at Chorzw (Germ. v. Pol.) (Claim for Indemnity) (Jurisdiction), 1927 P.C.I.J. (ser. A)

No. 9, at 31 (July 26)

28

Union Bridge Company (1924) 6 RIAA 138, 142

9

this Court held in the LaGrand case, the domestic distribution of entities within the defaulting state
does not matter: the international responsibility of the State is engaged by the action of the
competent organs and authorities acting in that State, whatever they may be 29 Thus, the
Amestonian State itself is guilty of intentionally wrongful acts, despite the fact the Bureaus
Director was primary responsible for the violation. That being said, his actions were overseen by
the Tribunal, the Parliamentary Oversight Committee and the Attorney General; there is thus no
defense available to Riesland as far responsibility for breach of its international obligations are
concerned.
Cessation is required, not as a means of reparation but as independent obligation, whenever
the obligation in question continues to exist30. In the present case, Amestonia is entitled to an order
of cessation from this Court and an assurance of non-repetition from Riesland, as Rieslands
obligation to bring an end to its violations of the ICCPR and UNCLOS is still a continuing
obligation.
4.

AMESTONIAS ARREST OF MARGARET MAYER, THE TWO VOR EMPLOYEES AND THE
SEIZURE AND FORFEITURE OF THE VOR EQUIPMENT, DOES NOT VIOLATE THE
BROADCASTING TREATY OR AMESTONIAS INTERNATIONAL LAW OBLIGATIONS
C. AMESTONIAS ARREST OF MARGARET MAYER, THE TWO VOR EMPLOYEES AND THE
SEIZURE AND FORFEITURE OF VOR EQUIPMENT DOES NOT VIOLATE THE
BROADCASTING TREATY

29

LaGrand Case (Germ. v. U.S.), Provisional Measures Order, 1999 I.C.J. 9, 16, 28 (Mar. 3)

30

James Crawford, Brownlies Principles of International Law (Fifth Edition, Oxford University

Press 2012)
10

The purpose behind entering into the Broadcasting Treaty and the setting up of the VoR
station was to fortify the friendship between Amestonia and Riesland, in addition to strengthening
understanding and cooperation between their peoples. The primary role of the station, according
to Article 2 of the Treaty, was to produce and air programs and content including news stories,
interviews, documentaries, and movies with local viewers and listeners in Amestonia being the
target audience. Article 23 of the Treaty clearly states that it is the duty of all persons employed
by the station to respect the laws and regulations of the host state. Those who are nationals of the
operating state have an additional duty not to interfere in the internal affairs of the host state under
Article 23. However, both Margaret Mayer and the two arrested VoR employees clearly
contravened Article 23. Since its inception in 1992, the premises of the VoR station had been used
by the Bureau to promote its surveillance activities on Amestonian soil with connivance of Mayer
and the stations employees.
Margaret Mayer was part of an operation called the Carmen Program, intended to collect
intelligence on high-ranking Amestonian public figures and private sector leaders. Whenever such
individuals came to be interviewed for Mayers show, their electronic devices were hacked into
by Bureau engineers who doubled as VoR employees. Over 100 Amestonian public figures,
businessmen, officials, and diplomats were surveilled under this program, whose primary objective
was to collect information concerning Amestonias domestic and foreign policy, in order to
advance Rieslands political and economic interests in the region. One of the victims of the
Carmen program was David Cornwell, the Amestonian Ambassador to Riesland, and the Bureau
had been able to obtain information regarding Amestonias position on upcoming votes in the
Assembly. These actions clearly contravened the provisions of the Broadcasting Treaty, especially
11

Article 23 which mandates that nationals of Riesland such as Mayer and the two VoR employees
have an additional duty not to meddle in the internal affairs of Amestonia.
The data collected as part of Carmen was analyzed in a secret chamber known as The
Opera Room, which was located within the VoR station premises. The presence of such a room
was yet another violation of Article 23, which clearly states that the premises of the station must
not be used in any manner incompatible with the stations functions (namely the production of
audio and video content for entertainment) as envisaged in the present Treaty. Article 14 of the
Treaty states that the premises of the VoR station shall be inviolable and agents of Amestonia may
not enter the station premises without the consent of the head of the station. Such consent may be
assumed only in cases of fire or other similar disaster posing or threatening serious immediate
danger to public safety or order. In the present case, Amestonian authorities rightfully assumed
such consent as the stations premises along with all the broadcasting equipment was abandoned
and there was no way of contacting Mayer for consent. Furthermore, by entering the premises
under the presumption of consent and seizing the broadcasting equipment, Amestonian authorities
were simply acting in furtherance of their duty under Article 14(3) to take all appropriate steps to
protect the premises of the VoR station against any intrusion or damage.
Mayer and the two VoR employees violated Amestonian domestic law by being willing
participants in what was essentially a criminal enterprise, and were therefore arrested by the
Amestonian police on a train bound for Riesland and charged with committing espionage. Article
15 (1) (a) no doubt states that the persons of VoRs employees shall be inviolable, and they shall
not be liable to any form of arrest or detention. Further, Article 15 (1) (b) states that Each stations
personnel shall enjoy immunity from the criminal jurisdiction of the receiving state; Article 15 (1)
(c) states that in respect of acts performed by an employee of the station in the exercise of his/her
12

functions, the immunities and privileges shall continue to subsist after the employees functions at
the station have come to an end. That being said, Article 36 states that all privileges and immunities
provided for in this Treaty, save for those in Article 15(1) (c) above, shall cease to have effect
upon the cessation of the stations functions as envisaged in the present Treaty.
In the present case, Articles 15 (1) (a) and (b) have no application whatsoever to the arrest
of Mayer and the employees as, in accordance with Article 36, their immunities and privileges
ceased to effect upon the cessation of the stations functions. In other words, the employees and
the premises lost their immunities and privileges once the station ceased acting as a broadcaster
and became a nest of spies. Furthermore, Article 15 (1) (c) provides immunity post-cessation of
the stations functions only for acts performed by an employee of the station in exercise of the
stations functions. It is submitted therefore that as the acts of espionage for which Mayer and the
two employees were arrested in no way relate to the stations functions, they enjoy no immunity
from criminal prosecution; their arrest in no way violates the provisions of the Broadcasting
Treaty.

D. AMESTONIAS ARREST OF MARGARET MAYER, THE TWO VOR EMPLOYEES AND THE
SEIZURE AND FORFEITURE OF VOR EQUIPMENT DOES NOT VIOLATE AMESTONIAS
INTERNATIONAL LAW OR TREATY OBLIGATIONS

Mayer is a consul and the VoR station consular premises, as opposed to a diplomatic agent
and diplomatic premises, as the receiving State Amestonia gives her and the station premises
special protection i.e. a higher standard of diligence than that appropriate to protection of aliens

13

generally.31 Both Amestonia and Riesland are signatories to the Vienna Convention on Consular
Relations (VCCR). In a situation where the VCCR conflicts with a bilateral agreement like the
Broadcasting Treaty, it is the bilateral agreement that prevails; however, where there is no overlap
with the bilateral treaty, recourse may be had to the VCCR provisions. One such provision is
Article 31 (2) of the VCCR which states:
The authorities of the receiving State shall not enter that part of the consular premises which is
used exclusively for the purpose of the work of the consular post except with the consent of the
head of the consular post or of his designee or of the head of the diplomatic mission of the sending
State. In the present case, as the entirety of the VoR premises, including The Opera Room was
not used for the purpose of the work of the station exclusively, but to engage in espionage as well,
Amestionian authorities had every right to enter the premises without the consent of Mayer. Thus,
consular premises are not inviolable from entry by agents of the receiving state Amestonia.

Further, under Article 41 (1) of the VCCR, consular officers shall not be liable to arrest or
detention pending trial, except in the case of a grave crime and pursuant to a decision by the
competent judicial authority. In the present case, Mayer and the VoR employees have been accused
of committing the grave crime of espionage, pursuant to the decision of judge who granted a
warrant for their arrest; the requirements of Article 41 (1) are thereby satisfied. Artice 41 (2) states
that except in the case specified in paragraph 1 of this article, consular officers shall not be
committed to prison or be liable to any other form of restriction on their personal freedom save in
execution of a judicial decision of final effect. In the present case, the commitment to custody of

31

Brownlie at 412.
14

Mayer and the employees is justified and in accordance with Article 41 (2) as the requirements of
Article 41 (1) are satisfied. Article 41 (3) states that in the circumstances mentioned in Article 41
(1), it has become necessary to detain a consular officer, the proceedings against the officer shall
be instituted with the minimum of delay. This requirement is also satisfied in the present case as
Amestonia has charged Mayer and the two employees with espionage immediately after their arrest
and the proceedings have been commenced with little or no delay.
Thus, the arrest of Mayer, the employees and the seizure and forfeiture does not violate
Amestonias international obligations.
5.

RIESLAND IS NOT ENTITLED TO COMPENSATION FOR THE SEIZURE AND FORFEITURE

OF ITS EQUIPMENT, NOR THE RELEASE OF ITS NATIONALS, MARGARET MAYER AND
THE TWO VOR EMPLOYEES

As demonstrated above, Amestionia has complied with the provisions of the Broadcasting Treaty
and its international obligations under the VCCR, there is no question of compensation or
repatriation of Margaret Mayer and the two employees of VOR.

15

6. THAT THE DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM ACT VIOLATES
INTERNATIONAL LAW.
International law has been a continually developing body of rules, however certain
fundamental principles such as the rule on the consent32 of States in the matter of the protection of
human rights continue to be inviolable.33 Said protections are within the intrinsic nature of the state
and its mandate to act in the best interest of its subjects, and therefore elemental to the sovereignty
of the state.
6.1 THAT RIESLAND IS IN VIOLATION OF INTERNATIONAL LAW IN APPREHENDING JOSEPH
KAFKER.
6.1.1 THE RESPONDENT STATE HAS VIOLATED APPLICANTS SOVEREIGNTY THROUGH AN
UNLAWFUL INTERVENTION.

32

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation

Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625(XXV),
GAOR, 25th Sess., Supp.No. 28, at 121, U.N. Doc.A/8082, 1970; Ian Brownlie, Principles Of
Public International Law 298 (2003); Malcom N Shaw, International Law 572 (2003); Louis
Henkin, International Law Cases And Materials ch.12 (1993); Oscar Schacter, International Law
in theory and pactice ch.12 (1993); Rosalyn Higgins, Problems and Process: International Law
and how we use it ch.4 (1994).
33

European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950,

312 U.N.T.S. 221; International Covenant on Civil and Political Rights, 1966, 999 U.N.T.S. 171;
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226; L.N. Sadat,
Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror, 75 Geo. Wash.
L.Rev. 1201 (2007).
16

Principle 3 of the 1970 Declaration on Principles in International Law34 prohibits any State
from intervening, directly or indirectly, for any reason whatsoever in the internal or external affairs
of another State.35
The Unlawful Detention36 of an alleged criminal is therefore illegal,37 as a states right to
exercise criminal jurisdiction is limited to its own territory and to acts committed within its own
territory,38 and only in exceptional cases to another States territory and acts committed on another
states territory with that states ad hoc consent or prior consent pursuant to a treaty.39 In this case
all alleged acts of criminality or alleged associations of Mr. Kafker are with subjects within the
territorial confines of the state of Amestonia.40 Further all activities purported to the HIVE

34

Declaration on Principles in International Law, G.A. Res. 2625(XXV).

35

G.A. Res. ES-6/2, U.N. GAOR, 6th Emerg.Sp.Sess., Supp.No. 1, at 2, U.N. Doc.A/RES/E-6/

(1980); G.A. Res. 38/7, U.N. GAOR, 38th Sess., Supp.No. 47, at 19, U.N. Doc.A/RES/38/7
(1983); W.M. Reisman, The Resistance in Afghanistan is Engaged in a War of National
Liberation, 81 A.J.I.L. 906 (1987); S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (Ser.A) No. 10.
36

L.N. Sadat, Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror,

75 Geo.Wash. L.Rev. 1201 (2007).

37

Attorney-General v. Eichmann, 36 I.L.R. 5 (1961); United States v. Alvarez-Machain, 504 U.S.

655. 902 (1992); Regina v. Horseferry Road Magistrates Court, ex parte Bennett, [1994] 1 A.C.
42.
38

D.J. Harris, Cases And Materials On International Law 299 (2004); The Case of the S.S. Lotus,

1927 P.C.I.J. (Ser.A) No.10; Restatement (Third) Of Foreign Relations Law 431 (1987); Lori
Damrosch, et al., International Law: Cases And Materials 1177 (2001).
39

Articles on State Responsibility, G.A. Res. 56/83, art.20, U.N. GAOR, 56th Sess., Annex,

Agenda Item 162 at 3, U.N. Doc.A/RES/56/83 (2001);

40

Compromis [36]
17

including the burning of warehouses and the conspiracy to adulterate batches of honey culminated
in or were foiled within the Territorial Limits of Amestonia.41
6.1.2 THE PRINCIPLE OF AUT DEDERE AUT JUDICARE DOES NOT APPLY AS NO CRIME
TRIGGERING UNIVERSAL JURISDICTION WAS COMMITTED.
Aut dedere aut judicare42is a customary principle of International Law that requires States
to prosecute or surrender individuals suspected of having committed crimes triggering universal
jurisdiction. No such crimes were committed in this case.
6.1.2.1NO ACT OF TERRORISM WAS COMMITTED
The inconsistent application and interpretation of the term terrorism in State Practice
elucidates that no single definition of terrorism exists.43 Absent a clear definition of terrorism,44
Riesland, cannot hide behind a defence of an alleged threat of terrorism or brand the activities of
the HIVE as terrorist activities to exert universal jurisdiction over them. In Prosecutor v. Gali,45
the International Criminal Tribunal for Yugoslavia (ICTY) identified the specific intent to
spread terror as the mens rea of terrorism. In the instant case, no such intent has been presented.
The letters addressed to the Ministry of Agriculture and Trade of Both Amestonia and Riesland

41
42

Compromis [14-19]
Bassiouni & Wise, Aut Dedere Aut Judicare: The Duty To Extradite Or Prosecute In

International Law 3 (1995); Bantekas & Nash, International Criminal Law 91 (2007).
43

Shaukat Qadir, The Concept of International Terrorism: An Interim Study of South Asia in

Round Table 333-39 (2001); Thomas M. Franck, Preliminary Thoughts Towards an International
Convention on Terrorism, 68 A.J.I.L. 69 (1974).
44

Kalliopi Koufa, Specific Human Rights Issues: New Priorities, In Particular Terrorism,

Additional Progress Report, 44, U.N. Doc.E/CN.4/Sub.2/2003/WP.18 (2003).

45

Case No.IT-98-29-A, 104 (2006)

18

was found to contain a non-toxic variant of neonicotinoids and therefore there clearly was no
intent to cause physical harm.46 Further the tweet only guided a requirement to refrain from using
neonicotinoids which had already been established to being extremely harmful to the bees 47 and
therefore the intent here is the preserve agriculture by saving the bees and not to spread terror.
6.1.2.2 NO CRIME AGAINST HUMANITY WAS COMMITTED.
Crimes against humanity48 as are conventionally defined in the body of rules of international law
does not include destruction of property. It does include the causing of loss of life however here
an, intent to kill is required to elevate killings into crimes against humanity. 49 In the instant case
the attack on the warehouse cannot attribute itself to a crime against humanity since the loss of life
was accidental and not intentional.50 The intent was to merely destroy the supplies of
neonicotinoids.
6.1.2.3NONE OF THE HIVES ACTS CONSTITUTE A GRAVE BREACH OF THE GENEVA CONVENTION
Grave breaches of the Geneva Conventions are considered war crimes. 51 These include wilful
killing of civilians,52 wanton destruction of civilian property,53 and other violations of the laws and

46

Compromis [16].

47

Compromis [11-12]

48

Rome Statute of the International Criminal Court, 1998, art.8(2)(a), 2187 U.N.T.S. 90

49

Prosecutor v. Delali, Case No.IT-96-21-T, 439 (1998).

50

Comprimis [14]

51

Rome Statute art 8(2)(a)

52

Ibid art 8(2)(e)(i)

53

Ibid art 8(2)(e)(iv)

19

conduct of war.54 In the instant case, none of the acts perpetrated by HIVE can be characterised as
wilful killing or destruction of civilian property.
6.2 THAT THE DETENTION OF KAFKER VIOLATED INTERNATIONAL LAW
It is the mandate of a state to protect individuals against deprivation of liberty by the action
of other States.55 Prominent illustration in international law have shown that even crimes of
excessive gravity amounting even to terrorism56 cannot justify the deprivation57 of the rights of the
offender, whether under International Human Rights Law or International Humanitarian Law
6.2.1THAT THE DETENTION OF KAFKER WAS ARBITRARY
Under the International Covenant on Civil and Political Rights (ICCPR), no one shall be
subjected to arbitrary deprivation of liberty.58 It is settled international norm that a detained
individual must be brought before a tribunal or court for the adjudication of alleged offenses in a
prompt manner59 The term promptly means within a few days.60 In the instant case Kafker was
detained and brought before the tribunal only three days hence where he was only further remanded
to detention summarily and without a hearing.61 Continued detention violated Kafkers right

54

Ibid art 8(2)(e)

55

Can Garca v. Ecuador 319/1988

56

Tomasi v. France, App.No. 12850/87, 15 E.H.R.R. 1 (1992).

57

Loayza Tamayo v. Peru, 1997 Inter-Am.Ct. H.R. (ser.C) No. 33, at 57 (1997).

58

ICCPR, art.9(1)

59

Ibid art. 9(3).

60

H.R. Comm., General Comment 8, 2, U.N. Doc.HRI/GEN/1/Rev.1 at 8 (1994).

61

Compromis [32]
20

against arbitrary deprivation of liberty under the ICCPR62 and is therefore illegal under
International Law.
6.2.2 KAFKERS DETENTION WAS CONSTITUTES AN ACT OF CRUEL, INHUMANE OR DEGRADING
TREATMENT.
The classification of treatment as cruel, inhuman or degrading is often a matter of severity,
intensity, and the totality of the circumstances.63 Several examples illustrate detention of over two
weeks wirth sub-par conditions being cruel, inhuman or degrading treatment.64

Several

international authorities have established that prolonged detention in itself constitutes a grave
violation of human rights amounting to cruel, inhumane and degrading treatment65 and has been
established to be a violation of the Convention against Torture and the Geneva Conventions.66
Enforced disappearance is another form of such a deprivation of liberty. It is an aggravated
form of detention where one is not necessarily in solitary confinement, but is denied access to
family, friends, and counsel.67 In all circumstances, a relative of the detainee should be informed

62

ICCPR, art.9.

63

Upholding the Rule of Law: A Special Issue of The Record, 59 N.Y. record of the Association

of the Bar 200 (2004).

64

Inquiry under Article 20: Committee against Torture, Findings Concerning Peru, 35, U.N.

Doc.A/56/44 (2001).
65

El-Megreisi v Libyan Arab Jamahiriya, Communication no 440/1990 (United Nations 1994

CCPR/C/50/D/440/1990); Velasquez Rodriguez case, Inter-Am Ct.H.R (29 July 1988); Fourth
Geneva Convention 1949 art 143; Third Geneva Convention 1949 art 126;
66

Human Rights Watch Getting away with torture? Command Responsibility for the U.S. Abuse

of Detainees, April 2005 vol 17 No 1(G)

67

Sarah Joseph Et Al., The International Covenant On Civil And Political Rights: Cases, Materials

And Commentary 308 (2004). See also Laureano v. Peru, Comm.540/1993, U.N.
21

of the arrest and place of detention within 18 hours68 and enforced disappearance of at least five
days has been considered cruel, inhuman or degrading treatment prohibited by Article 16 of the
Convention against Torture.6970 In the instant case while the state of Amestonia was informed, and
while Kafker was offered consular remedies, he has been deprived of interacting with his lawyer
and and no note is made within the agreed facts of notice of any form having been given to his
family. Further, the period of detention itself has not extended to over 6 months which squarely
violates the ICCPR.
6.2.3 THE STATE OF RIESLAND VIOLATED PROVISIONS OF THE ICCPR
Article 7 of the ICCPR states, No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.71 The Human Rights Committee lad down that it was not
necessary to establish sharp distinctions between the different types of treatment or to enumerate
a list of prohibited acts, while interpreting article 7.72 Generally, the Human Rights Committee has
simply determined whether or not a State committed a breach of Article 7.73 As with the

Doc.CCPR/C/56/D/540/1993

(1996);

Shaw

v.

Jamaica,

Comm.704/1996,

U.N.

Doc.CCPR/C/62/D/704/1996 (1998).
68

H.R. Comm., Report of the Special Rapporteur on Torture, 26(g), U.N. Doc.E/CN.4/2003/68

(2002).
69

Convention Against Torture and other Cruel Inhumane or Degrading Treatment or Punishment

1984 art 16
70

Concluding Observations on Spain, U.N. Doc.A/58/44, 61 (1997).

71

ICCPR art 7

72

H.R. Comm., General Comment 20: Article 7, 4, U.N. Doc.HRI/GEN/1/Rev.1 at 30 (1994).

73

Sarah Joseph Seeking Remedies For Torture Victims: A Handbook on the Individual Complaints

Procedures of The UN Treaty Bodies 158 (2006).

22

Convention against torture the subjection of an individual to inhumane and cruel treatment such
as Prolonged and Arbitrary detention is a violation under this section of the ICCPR.
In addition to the prohibition under Article 7, Article 10 of the ICCPR requires that all
persons deprived of their liberty be treated with humanity and respect for the inherent dignity of
the human person.74 This provision has been elevated to a jus cogens norm not subject to any
derogation.75 Moreover, Gilboa v. Uruguay76 pronounced that enforced disappearance for fifteen
days already constituted a breach of Article 10(1) of the ICCPR. In the instant case, the agreed
facts clearly establish these derogations and therefore clarify the illegality of Kafkers detention.

6.3 THE PROSECUTION OF JOSEPH KAFKER BY

THE

NATIONAL SECURITY TRIBUNAL IS

VIOLATIVE OF STANDARDS OF DUE PROCESS IN THE INTERNATIONAL HUMAN RIGHTS

REGIME.
The ICCPR in Article 14 guarantees fair trial before an independent and impartial body.77
By the varied interpretation of this article and the pronouncements of courts, prosecution by a body
such as the National Security Tribunal which is in the nature of a military commission is almost
unanimously considered a violation of said Article because such bodies are not independent 78 and

74
75

ICCPR, art 10(1).

H.R. Comm., General Comment 29: States of Emergency (Article 4), 11, U.N.

Doc.CCPR/C/21/Rev.1/Add.11 (2001).
76

Comm.147/1983, 14, U.N. Doc.CCPR/C/OP/2 (1990).

77

ICCPR Art 14

78

Polay Campos, Comm.577/1994, U.N. Doc.CCPR/C/61/D/577/1994 (1998).

23

generally use means that are extra-judicial and excessive and therefore breach all normative
principle of a fair trial.79
6.3.1 THE NATIONAL SECURITY TRIBUNAL VIOLATES THE STANDARD OF AN INDEPENDENT
AND IMPARTIAL FORUM.
It is and inviolable right for an accused to have access to an impartial tribunal and this is a
rule without exception.80 Based on extensive State practice81 and Opinio Juris,82 the trial of
civilians in the auspices of organisations such as the National Security Tribunal which is akin to a
military commission has been regarded with disfavour as it does not meet the standard of
independence and impartiality83 given as there is a manifest lack of autonomy of the forum from

79

H.R. Comm., General Comment No.13: Equality Before the Law (Article 14), U.N.

Doc.HRI/GEN/1/Rev.6 (2003).
80

Gonzales del Rio v. Peru, Comm.263/1987, U.N. Doc.CCPR/C/46/263/1987 (1992); H.R.

Comm, supra note 105, at 16.

81

Oviedo v. Paraguay, Case 12.013, Report No.88/99, OEA/Ser.L/V/II.106 doc.3 rev.30 (1999);

Inter-Am.C.H.R., First Report on the Situation of Human Rights in Chile, OAS

Doc.OEA/Ser.L/V/II.34 doc. 21 (1974); Inter-Am.C.H.R., Reports on the Situation of Human
Rights in the Republic of Colombia, OAS Doc.OEA/Ser/L/V/II.53 doc.22 (1981); Findlay v.
United Kingdom, App.No. 2107/93, 24 E.H.R.R. 221, 74-77 (1997); Cyprus v. Turkey, App.No.
25781/94, 2001-IV Eur.Ct.H.R. (2001).
82

H.R. Comm., Report of the Working Group on Arbitrary Detention, 80, U.N.

Doc.E.CN/4/1999/63 (1998); Joinet, Issue on the Administration of Justice through Military

Tribunals and other Exceptional Jurisdiction, U.N. Doc.E/CN.4/Sub.2/2002/4 (2002).
83

Incal v. Turkey, App.No. 22678/93, 449 E.H.R.R. 316, 323 (2000); Goldman & Orentlicher,

When Justice Goes to War, Prosecuting Persons before Military Commissions, 25 HARV.J.L. &
PUB. POLY 653, 659-660 (2002).
24

its establishing body. The agreed facts clearly show that the Tribunal behaves more as a tool for
the government to enforce its will as opposed to a forum for judicial reprieve.
6.3.2 THE TERRORISM ACT VIOLATES THE RIGHT TO A FAIR TRIAL.
6.3.2.1 THE

RULES OF THE

NATIONAL SECURITY TRIBUNAL

VIOLATE THE RIGHT REGARDING

CONFRONTATION OF WITNESS AND PRODUCTION OF EVIDENCE.

Pursuant to Article 14(3)(e) of the ICCPR, an accused is entitled to the examination of witnesses
and production of evidence. The purpose of these rights to be enshrined in the ICCPR is to afford
the accused an equality of arms.84 In Peart v. Jamaica,85 the Human Rights Committee held that
the right to examine and obtain the attendance of a witness was violated when the prosecution
refused to give the accused a copy of a witness statement. In the instant case therefore, since
Joseph Kafer was not allowed to engage with the Secret testimony and was not given any witness
statement, and no concrete evidence was produced, as the same was protected and hidden to be
treated as Secret Documents within the provisions of the National Security Tribunal, the above
rights have been violated.

84

Peart v. Jamaica, Comm. Nos.464/1991 & 482/1991, U.N. Doc.CCPR/C/54/D/464/1991 &

482/1991 (1995).
85

CAT, art.15
25

6.3.2.2 THE NATIONAL SECURITY TRIBUNAL VIOLATES THE RIGHT TO COUNSEL OF ONES OWN CHOICE.
A person accused of a criminal charge is entitled to defend himself through legal counsel of his
own choosing,86 and to communicate to such chosen counsel.87 An accused should not be forced
to accept an assigned legal counsel,88 but must be given the right to choose his own.89 The
appointment of Secret Counsel already listed and chosen by the state of Riesland is violative of
this fundamental principle of fair play and natural justice.
6.3.3 THAT THE DECLARATION OF A TERRORISM ALERT DOES NOT CONSTITUTE VALID
GROUNDS FOR DEROGATION OF THE ICCPR
States are allowed to derogate from obligations enunciated under the ICCPR on the basis that they
face a public emergency threatening the life of the nation.90 However, such derogation must
satisfy certain conditions.91 None of these conditions are satisfied in the instant case.

86

ICCPR, art.14(3)(d); ECHR, art.6 (3); American Convention on Human Rights, 1969,

art.21(4)(d), 1144 U.N.T.S. 123 [hereinafter ACHR]; Statute of the International Criminal
Tribunal for the Former Yugoslavia, S.C. Res. 827, art.7(3), U.N. Doc.S/RES/827 (1993)
[hereinafter ICTY Statute].
87

ICCPR, art.13 (3)(b).

88

Kelly v. Jamaica, Comm.235/87, U.N. Doc.CCPR/C/41/D/253/1987 (1991); Lopez Burgos v.

Uruguay, Comm.52/1979, U.N. Doc.CCPR/C/13/D/1979 (1981)

89

Estrella v. Uruguay, Comm.74/80, U.N. Doc.CCPR/C/OP/2 (1990).

90

ICCPR, art. 4;

91

Duffy, The War On Terror And The Framework Of International Law 393 (2005);
26

6.3.3.1 THERE IS NO PUBLIC EMERGENCY THREATENING THE LIFE OF THE NATION.

The nature of the disturbance needs to threaten the life of a nation for it to justify derogation from
the ICCPR.92 Such standard is intentionally high in order to prevent States from invoking states of
emergency as an alibi to justify impermissible restrictions on human rights.93 Here, no clear and
present threat to life can be seen in the instant case. Any threat that the HIVE constituted was
foiled in due course. None of the references to violence on the chat forums have even remotely
crystallised. The white neonicotinoids in the envelopes were of a nontoxic nature. All of these facts
go on to corroborate that no danger existed or even if it did, it did not justify a state of emergency
to be declared in the form of a Terror Alert.
6.3.3.2 THE DEROGATION MEASURES ARE NOT PROPORTIONATE AND NECESSARY.
Based on the principle of proportionality, it is fundamental for any ICCPR derogation to be limited
to the extent strictly required by the exigencies of the situation.94 Hence, the measure for
derogation must neither be more severe nor more prolonged than necessary.95 When applied to this
case, any derogation measure would have been proportionate and necessary if security risks are
increased due to Respondents grant of the rights normally granted to an accused in a regular trial,
i.e. right to a chosen counsel or the right to contest and challenge evidence.96 In the instant case

92
93

ICCPR, art.4; ECHR, art.15; ACHR, art.27(1).

H.R.

Comm.,

Concluding

Observations

on

Syrian

Arab

Republic,

6,

U.N.

Doc.CCPR/CO/71/SYR (2001); H.R. Comm., Concluding Observations on Egypt, 6, U.N.

Doc.CCPR/CO/76/EGY (2002).
94

H.R. Comm., General Comment 29: States of Emergency (Article 4), 11, U.N.

Doc.CCPR/C/21/Rev.1/Add.11 (2001).
95

Duffy, The War On Terror And The Framework Of International Law 293 (2005);

96

Al-Nashif v. Bulgaria, App.No. 50963/00 (unreported) 123 (2002)

27

none of these deprivations can be justified by Riesland and therefore there cannot be a valid
justification for these derogations.

7. THAT AMESTONIA IS ENTITLED TO KAFKERS IMMEDIATE RELEASE, THE DISCLOSURE OF

ALL THE INFORMATION WHICH FORMED THE BASIS OF HIS APPREHENSION, AND THE
PAYMENT OF COMPENSATION FOR HIS DETENTION.
The UN Working Group on arbitrary detention has laid down the scope of remedies upon
a challenge of unlawful detention97 which states that the right to compensation is recognized in
cases of unlawful detention universally. Several instruments and mechanisms98 uniformalise the
awarding of compensation as a remedy for unlawful detention.
Further, it states that an apology and publicizing the judgment are associated remedies also
made available to the victim of unlawful detention.99

97

UN Working Group on Arbitrary Detention Scope of Remedies upon a Sucessful challenge to

arbitrary detention (Global Consultation on the right to challenge detention, September 2014,
Geneva)
98

ICCPR article 9(5); European Convention, article 5(5); Inter-American Court of Human Rights,

Loayza Tamayo v. Peru, Judgment on Reparations (1998), para 129; African Principles, Principle
M(1)(h); African Commission on Human and Peoples Rights, Embga Mekongo Louis v
Cameroon, Communication 59/91, decided 22 March 1995; Arab Charter, article 14(7);
International Convention on the Protection of the Rights of All Migrant Workers and Members of
their Families, article 16(9); Rome Statute of the International Criminal Court, article 85(1).
99

Inter-American Court of Human Rights, Velez Loor v Panama, para 266. See also Human Rights

Committee, General Comment no 31, para 16.

28

Clearly, therefore, both compensation and disclosure of all information regarding the unlawful
detention are remedies validly asked of this court in the instant case.

8. THAT THE CYBER-ATTACKS AGAINST THE COMPUTER SYSTEMS OF THE AMES POST AND
CHESTER & WALSINGHAM ARE ATTRIBUTABLE TO RIESLAND, AND CONSTITUTE AN
INTERNATIONALLY

WRONGFUL

ACT

FOR

WHICH AMESTONIA

IS

ENTITLED

TO

COMPENSATION.
It is a quintessential principle of international law that States bear responsibility for an act
when: (i) the act in question is attributable to the State under international law; and (ii) it constitutes
a breach of an international legal obligation applicable to that State.100 We submit that the cyberattacks are attributable to Riesland and constitutes a breach of an international legal obligation.
8.1 THAT THE HACKING OF THE AMES POST AND CHESTER AND WALSINGHAM AND
DESTRUCTION OF INFRASTRUCTURE CONSTITUTE AN UNLAWFUL USE OF FORCE IN THE FORM
OF A CYBER ATTACK.
Rule 10 of the Talinn Manual states that a cyber-operation that constitutes a threat or a use
of force against the territorial integrity or the political independence of any state, or that in any
manner is inconsistent with the purposes of the United Nations, is unlawful. 101 Article 2(4) of the
UN Charter calls for member nation to refrain from using force as a customary norm in
international law.102 The use of force here can be undertaken by anyone within the control of the

100

Articles on State Responsibility, Article 2

101

Ibid Rule 10

102

Nicaragua, para 188-90

29

state, including a states intelligence agencies or even a private contractor whose conduct is
attributable to the state.103 The principle laid down in Nicaragua prohibits a use of force against
matters within the sovereign control of the state and pertaining to the internal or external affairs of
the state.104 Per the application of rule 11105 a cyber operation will constitute a use of force when
its scale and effects are comparable to non-cyber operations rising to the level of a use of force.
Rule 30106 defines a cyber-attack to mean a cyber operation whether offensive or defensive that is
reasonably expected to cause injury or death to persons or damage or destruction to objects. A
cyber-attack is a form of illegal use of force. Within the meaning of this rule acts of violence need
not mean acts that release kinetic force. Chemical, Biological and ratiological attacks do not
usually have a kinetic effect on their designated targed, but they constitute attacks as a matter of
law.107 Similarly, so can cyber-attacks constitute an act of violence as long as the consequences
are destructive; Additionally Rule 37 prohibits an attack against civilian objects.108
In the instant case, the use of force, or cyber-attack was perpetrated against civilian system
in The Ames Post and Chester and Walsingham. Further, this attack caused damaged worth Euro
45-50 million. Clearly, by the magnitude of destruction caused, the act constitutes a cyber-attack

103

Micheal N. Schmitt ed. Talinn Manual on the International Law applicable to Cyber Warfare

CUP 2013, rule 10, 43

104

Nicaragua para 202

105

Micheal N. Schmitt ed. Talinn Manual on the International Law applicable to Cyber Warfare

CUP 2013, rule 11

106

Ibid, rule 30, 106

107

Tadic, Descision on the defence motion for Interlocutory Appeal paras 120, 124

108

Micheal N. Schmitt ed. Talinn Manual on the International Law applicable to Cyber Warfare

CUP 2013, rule 37

30

that would ordinarily in its magnitude of destruction constitute an act of violence tantamount to a
use of force. In the instant case The Ames Post and Chester and Walsingham are both private
entities in Amestonia and therefore the attack also interferes in the internal matters of Amestonia.
8.2 THE CYBER ATTACK HAS BREACHED AMESTONIAS SOVERIGNITY.
The definition of sovereignty was laid down in the Island of Palmas arbitral award of 1928
which provided that sovereignty signified independence and the right to exercise therein, in the
exclusion of any other state, the functions of a state.109 This notion of sovereignty lends control
over all cyber infrastructure and cyber activities within its territory, which goes on to include
subsoil, internal waters, territorial sea, archipelagic waters or national airspace.110 This sovereignty
extends even to private entities and is not excluded by the nature of activities conducted using this
cyber machinery. 111 Damage to cyber infrastructure causes a breach in the sovereignty of the state
whose rights are affected.112
The obligation to respect another states sovereignty as laid down in Corfu Channel clearly
elucidates that a state may not allow knowingly its territory to be used for acts contrary to the
rights of other states.113 This principle runs hand in hand with Rule 5 of the Talinn Manual which
states that knowingly allowing the use of cyber infrastructure located in its territory or under
exclusive governmental control to be used for acts that unlawfully affect the other state is

109

Island of Palmas (Netherlands v USA) 2 R.I.A.A. 829, 838 {PCIJ 1928)

110

Law of the Sea art 2; Chicago Convention arts 1-3.

111

Micheal N. Schmitt ed. Talinn Manual on the International Law applicable to Cyber Warfare

CUP 2013, rule 1, 16

112

ibid

113

Corfu Channel (UK vAlb), 1949 ICJ 4 (Apr 9, 1949)

31

prohibited as a breach of sovereignty.114 This goes to the root of the act also being applicable if
severe damage is caused to infrastructure and does not limit itself to merely an unlawful act. 115
This rule is interpreted to extend to infrastructure under exclusive control of the state.116 This,
therefore implies that if the infrastructure used to perpetrate the cyber-attack is found within the
exclusive control of the state, irrespective of what is stated under rule 7 of the manual, the act will
be attributable to the state in whose control said machinery is found to lie.117
Clearly, therefore, since in the instant case the Amestonian Insittue of Technology
concluded that the computer hardware used to perpetrate the attach was under the control of the
government or Riesland, and given the existence of the Terror Alert and restriction of rights, within
their exclusive control, both ingredients of state responsibility are satisfied and therefore the above
attack is attributable to Riesland.

114

Micheal N. Schmitt ed. Talinn Manual on the International Law applicable to Cyber Warfare

rule 5, 26
115

Ibid.

116

Ibid, 28.

117

Ibid.
32

PRAYER FOR RELIEF

Amestonia respectfully requests this Honorable Court to adjudge and declare that:

(a) Riesland is required to, with immediate effect, cease all activities in relation to the programmes
referred to in the documents published on the website of the Ames post.

(b) Riesland is not entitled to compensation for the seizure and forfeiture of the VoR station and
its equipment.

(c) Riesland is not entitled to the immediate release of its nationals

(d) Amestonia is entitled to Kafkers immediate release, the disclosure of all the information which
formed the basis of his apprehension, and the payment of compensation for his detention.

(e) Amestonia is entitled to compensation for the damages caused by the Cyber-attack

Respectfully submitted,
......................................................
(Agents for Amestonia)

xxvi