INTERNATIONAL COURT OF JUSTICE JOINT APPLICATION

INSTITUTING PROCEEDINGS filed in the Registry of the Court on 21 February 2012 DISPUTE ARISING FROM INCIDENTS IN THE BORDER REGION (The Republic of Wengine v. The Peoples Republic of Ardhi)

MEMORIAL FOR THE REPUBLIC OF WENGINE

International Legal Writing Spring 2012 Professor Siesta Student ID: 0380276

TABLE OF CONTENTS

PRELIMINARY STATEMENT.. ..3 ARGUMENT I. GENERAL MABAYAS ACTIONS ARE ATTRIBUTBLE TO THE STATE OF ARDHI UNDER THE PRINCIPLES OF STATE RESPONSIBILITY .....5 A.) Analysis of the State Responsibility Doctrine in International Law ...5 B.) Application of the State Responsibility Doctrine to Mabaya and the ANDFs actions during the incrusions from April 2009 to May 2010. .8 II. ARDHI VIOLATED CUSTOMARY INTERNATIONAL LAW AND THE CHARTER BY RECRUITING CHILD SOLIDERS TO SERVE IN THE ARDHI NATIONAL DEFENSE FORCE ............................................................................1 2

A. Ardhis Reservation to the Charter is an Invalid Shield of Immunity 12

B. Ardhis Recruitment of Children Aged 15 and Under into the ANDF is in Violation of Customary International Law Irrespective of the Child Soldiers Participation in Active Hostilities ........13 CONCLUSION........15

PRELIMINARY STATEMENT The dispute before the within Court concerns alleged human rights violations of the African Charter on the Rights and Welfare of the Child (Charter), perpetuated by Thomas Mabaya (Mabaya), former General of the Ardhi National Defense Force (ANDF). Both parties, The Republic of Wengine (Wengine) and the Peoples Republic of Ardhi (Ardhi) are signatories to the Charter1, the United Nations Charter (UNC), and the Vienna Convention on the Law of Treaties (VCLT). Wengine has adopted the Geneva Conventions of 1949 (GC) and its additional protocols, while Ardhi is not a signatory to the GC. Between April 2009 and May 2010, Mabaya led several military incursions into the border region of Wengine and Ardhi an area compromised of ethnic Wengine civilians. These incursions resulted in the devastation of Wengine villages, the recruitment of males to serve in the ANDF, and the ethnic intimidation of the Wengine population. Wengine contends that during these assaults, Mabayas forces recruited child soldiers to serve in the ANDF, in violation of the Charter and international law. Accordingly, Wengine contends that Mabayas actions are attributable to the State of Ardhi under the State Responsibility doctrine. Ardhi contends that its reservation to the Charter precludes Ardhi from being punished for the recruiting children aged 14 and above into its military.2 Furthermore, Ardhi contends that it is not
1

Ardhi does not adopt Article 2 of the Charter, which defines a child as anyone under the age of 18 and instead defines a child as any person under the age of 14 according to the nations longstanding custom. 2 Ardhi maintains a reservation to Article 22(2) of the Charter stating it will not be in violation of the Charter if it recruits children aged 14 and above into the ANDF so as long as they do not engage in military operations.

responsible for Mabayas actions since it did not condone the incursions. Wengine and Ardhi are independent, sovereign nations with functional democracies and share a common border. 91% of the Wengine population identify themselves as Wengine. Due to the availability better agricultural resources, a number of Wengine have migrated to the border region of Ardhi and beyond. As a result, Ardhi is compromised of 71% ethnic Ardhis, and 12% Wengine. In 2005, Jerome Rais (Rais) was elected to the Presidency of Ardhi. Shortly after becoming President, Rais declared the Wengine immigrants in Ardhi hostile to the government. The situation further deteriorated in April of 2009 when Rais appointed Mabaya as General of the ADNF. Mabaya immediately took a hard line approach against the ethnic Wengine population. From April 2009 to May of 2010 Mabaya led several military incursions into Wengine-Ardhi border region. The incursions resulted in devastation of Wengine villages, recruitment of child soldiers, and the forced relocation of Wengine villagers. Ardhi received sharp international criticism for Mabayas incursions.3 In May 2010, Rais removed Mabaya as General of the ADNF and encouraged international prosecution against Mabaya. On April 27, 2011, pursuant to Article 58(1)(b) of the Rome Statute ( the Statute) the International Criminal Court (ICC) issued an Arrest Warrant for Thomas Mabaya for leading the incursions into the Wengine-Ardhi border area from April 2009 to May 2010. Accordingly, the ICC determined there is sufficient evidence to believe that the ANDF committed several crimes against civilians in the border region, including the recruitment of child soldiers under the direction of Mabaya. Wengine contends that the ICCs Pre-Trial Arrest Warrant pursuant to Article 8(2)(b)(xxvi) of the Statute
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Human Rights World Watch Article

constitutes sufficient evidence that the ANDF violated the Charter under the direction of Mabaya, and those actions are attributable to Ardhi.

ARGUMENT I. GENERAL MABAYAS ACTIONS ARE ATTRIBUTBLE TO THE STATE OF ARDHI UNDER THE PRINCIPLES OF STATE RESPONSIBILITY Mabayas actions are attributable to the State of Ardhi since Mabaya acted in his official capacity as General of the ANDF, a de jure state organ of Ardhi. Principles of international law deem that States are responsible for actions under taken by official state organs. In the event that the Court does not reach this conclusion regarding Mabayas status as an official state organ, Ardhi maintained effective control over Mabaya and the ANDF as a de facto state organ during the period of May 2009 to May 2010. As a result of Mabayas command of the ANDF during these incursions, the ICC Pre-Trial Chamber issued a warrant for Mabayas arrest, evidencing that Mabayas incursions into the Wengine-Ardhi border region violated international law. More specifically, the incursions violated Article 8(2)xxx of the Statute, which results in a direct violation of the Charter. Conclusively, Mabayas violations of the Charter are attributable to Ardhi through the application of the State Responsibility doctrine. A.) Analysis of the State Responsibility Doctrine in International Law 1. International Law allows Mabayas violations to be attributed to the nation of Ardhi under Principles of State Responsibility. States are only able to act through persons operating as state organs who exercise a states authority.4 Accordingly, principles of State Responsibility attribute actions of a
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B. CARTER ET AL., INTERNATIONAL LAW 761 (5th ed. 2007).

de jure state organ to its governing State if that organ violates international law. The Articles on the Responsibility of States for Internationally Wrongful Acts (the Articles) incorporate this principle of attribution into its codification of international law.5 Moreover, the Articles, which are attempts to codify existing international law, define a State organ as any person or entity which has that status in accordance with the internal law of the State.6 Application of these principles to the instant issue will show that President Rais appointed Thomas Mabaya to serve as General of the ANDF, constituting Mabaya as an official state organ. As such, Mabayas actions during the period of April 2009 to May 2010 are attributable to Ardhi despite Ardhis contentions to the contrary. 2. Ardhi Maintained Effective Control Over Mabaya as General of the ANDF and is Liable for his Conduct Under the State Responsibility Doctrine. In the event that the Court finds that Mabaya was not a de jure organ of Ardhi, it is respectfully submitted that the Court must find Mabaya to be a de facto organ of the State under the Overall Control test. The International Criminal Tribunal for the former Yugoslavia (ICTY) first articulated this standard in Prosecutor v. Tadic.7 In Tadic the ICTY required that the petitioner show proof of financial and training assistance, military equipment and operational support to establish attribution of conduct to a State.8 Under this standard, the facts demonstrate that Mabayas forces were under the direction and control of Ardhi despite the evidentiary absence of communication between Rais and Mabaya. It is also important to note an alternative method of determining state
5

The Articles are drafted by the International Law Commission (ILC), a United Nations body specifically tasked with the codification of existing international law. 6 Article 4(2) ILC Articles 7 Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, 123 (Intl Crim. Trib. for the Former Yugoslavia, July 15, 1999). (Hereafter Tadic). 8 Prosecutor v. Kordic and Cerkez, Case No IT-95-14/2-T, Judgment, 26 Feb 2001, para 115, and Case No IT-95-14/2=A, Judgment of 17 Dec 2004, para 361.

responsibility exists in international jurisprudence. This method is articulated by the ICJ in Nicaurgua v. United States and further explained in the ICJs decision in Bosnia case. In Nicaragua, the Court found that while the U.S. largely financed, trained, equipped, armed and organized9 rebels forces, that conduct could not be attributed to the United States.10 As such, the primary issue of attribution in Nicaragua is whether the non-state actors were completely dependent on the State arming its activities.11 In reaching its conclusion, the Court stated that in order for actions of non-state actors to be imputed to a State, the State must have had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. 12 Effective control requires a petitioner show that the State directed or enforced the perpetration of the acts contrary to human rights and humanitarian law of the non-state actors.13 This view was expanded in the Bosnia v. Serbia where the Court limited the applicability of the ICTYs ruling to determining only whether an international conflict occurred.14 However, it is respectfully submitted that the Bosnia v. Serbia decision incorrectly limited the applicability of the Tadic decision. In fact, Tadic specifically confronted the issue of attribution. In Tadic the Court specifically refuted the Nicaragua test as inconsistent with the Laws of State Responsibility and Article 8 of the ILC Articles by stating To prevent States from escaping international responsibility by having private individuals carry out tasks that may not or should not be performed by State Officials, or by claiming that individuals actually participating in governmental
9

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 107 (June 27). (Hereafter Nicaragua). 10 id 103-109 11 id 109 12 id 115 13 Nicaragua 14 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. (26 Feb.). (Hereafter Bosnia v. Serbia)

authority are not classified as State organs under national legislation nd therefore not engage State Responsibility. In other words, State are not allowed on the one hand to act de facto through individuals and on the other hand to disassociate themselves from such conduct when these inviduals beach international law.15 Indeed, a plethora of international tribunals have opted to follow the Tadic decision when determining state responsibility for alleged war crimes instead of the ICJs effective control test.16 Consequently, it is respectfully submitted that the Overall Control Test articulated by the ICTY correctly determines attribution of non-state actors. Accordingly, applying the Overall Control test to the present issue, Ardhi is responsible for Mabayas violations of international law. B.) Application of the State Responsibility Doctrine to Mabaya and the ANDFs actions during the incrusions from April 2009 to May 2010. 1. Customary International Law Recognize General Mabaya as a Official State Organ of Ardhi Conferring Liability Upon Ardhi for Mabayas Violations of International Law. It is an unquestionable principle of customary international law that States are responsible for the conduct of their organs.17 Mabaya's title as General of the ANDF establishes him as an organ of the State of Ardhi. The record clearly establishes that in April of 2009, President Rais appointed Mabaya to serve as General of the ANDF. In doing so, Rais authorized Mabaya to serve and execute the authority of Ardhis military organ. As General of the ANDF, Mabaya enjoyed the legal status and protections of that title within Ardhi's domestic law. Furthermore the appointment and subsequent removal of Mabaya as General of the ADNF confirms that the position serves at the leisure and
15 16

Tadic 117. Tadic para 108-117; See also, Marko Milanovic, State Responsibility for Genocide Eur J Int Law (2006) 17 (3): 553-604; See also, Stefan Talmon, The Various Control Tests in the Law of State Responsibilty and the Responsibility of Outside Powers for Acts of Secessionist, 58 International and Comparative Law Quarterly (2009), 12 (Hereafter Talmon). 17 Bosnia v. Serbia 398; See also, Adreas Zimmermann, The Second Lebanon War: Jus ad bellum, jus in bello and the Issue of Proportionality, Max Planck Yearbook of U.N. Law, Vol 11, 110.

direction of the President of Ardhi. Consequently, the appointment of General to the ANDF is a delegation of official authority by the President of Ardhi, conferring the title as a de jure organ of the State. Ardhi contends that Mabaya was not an official organ of the state since he acted in contravention to presidential instruction and Mabaya's incursions are the result of an armed militia not an official military operaton of Ardhi. This contention is immaterial to the question of State responsibility. The Articles attribute conduct of an organ to a State even if the organs, (i.e. military units) act in contravention of instructions given by other state organs. Similarly, States are also responsible for the acts of persons or entities that may not be organs in a traditional sense, but are authorized by the internal laws of the State to exercise governmental functions.18 Rais did not rescind Mabayas until May of 2010. Thus, in order for Ardhis contention to be merited, the Court must find that from the period of April 2009 May 2010, Mabaya was operating a private militia armed and financed by Ardhi. This conclusion is highly unlikely and would encourage States to cloak responsibility of their actions behind a premise of internal state conflicts, a notion that the drafters of the Articles specifically sought to prohibit.19 Accordingly, Ardhi contentions that Mabaya is not a de jure organ because he acted in contravention of Rais instructions are without merit. As General of the ANDF, Mabaya's authority is limited to command control of ANDF forces. Mabaya acted in conformity with that authority when leading ANDF forces into the border region. As a result, the incursions are exercises in military authority
18

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10) (Hereafter ILC Articles) Article 5, 7; See also, Marko Milanovic, State Responsibility for Genocide Eur J Int Law (2006) 17 (3): 553-604; See also, Bergilind Halldorsdottir Birkland, Reining in Non-State Actors: State Responsibility and Attribution In Cases of Genocide N.Y.U.L. Rev Vol 84 p 1631 (Hereafter Birkland). 19 ILC Articles 5,7; See also, Marko Milanovic, State Responsibility for Genocide Eur J Int Law (2006) 17 (3): 553-604

delegted to Mabaya by the state of Ardhi. Accordingly, the aforementioned reasoning demonstrates that Mabaya served as an official State organ from April 2009 to May 2010 and further, Ardhi is responsible for Mabayas his actions as General of the ANDF. The ICCs Arrest Warrant issued on xxxx in addition to President Rais 2010 speech clearly demonstrate Mabaya violated international law while serving as General of the ANDF. The Rome Statute authorizes arrest warrants to be issued where applicable, to prevent the person from continuing with the commission of that crime or a related crime20 The Counts listed in the Arrest warrant specifically include charges stemming from the incursions Mabaya led from the period of 2009 2010 and specifically violations of Article 8(2)(e)(vii) of the Statute. Furthermore, the record shows that President Rais encouraged international prosecution against Mabaya indicating an admission of culpability by Ardhi themselves.21 Undoubtedly, the ICC Arrest Warrant is based on a pretrial investigation that demonstrate a strong likelihood Mabaya violated international law, absent a trial and conviction it is not a definitive finding. However, Mabayas fugitive status and unwillingness to confront these charges reaffirm his culpable conduct. It would highly prejudicial for this Court to preclude a finding of guilt for Mabayas actions solely based on the absence of an ICC conviction. If that were the case, States would receive a perverse incentive to shield fugitives from international prosecution in order to escape liability of their actions. Thus, for the aforementioned reasons, it is clear that Mabaya violated international law while serving as General of the ANDF. Consequently, as an organ, those violations are attributable to Ardhi.
20

Rome Statute of the International Criminal Court, Art. 58,1 July 2002, 2187 U.N.T.S. 90. (Hereafter the Statute). 21 Human Rights World Watch Article

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2. The Effective Control Test of the State Responsibility Doctrine Recognize General Mabaya as a De Facto Organ of Ardhi Attributing Liability to Ardhi for Mabayas Actions as General of the ANDF. If the Court finds that Mabaya is not an official organ of Ardhi, it is respectfully submitted that Ardhi maintained overall control over the ANDF during the period of April 2009 to May 2010 as a de facto organ of the State. The primary issue under the overall control test is whether a State provided financial and training assistance, military equipment and operational support, as well as coordination in planning of those military activities.22 In Tadic, the Court found that Serbian paramilitary groups committed heinous acts of genocide that are attributable to Federal Republic of Yugoslavia (FRY) since the FRY significantly contributed to military operations involved in the Serbian genocide.23 In the instant case, Ardhi maintained overall control of the ANDF by continued financial payments and equipment of its soldiers from the period of 2009-2010. Furthermore, the Tadic Court determined that the overall control test is satisfied even when the non-state actor is capable of independent tactics so as long as the State is complicit in these actions.24 Accordingly, the record demonstrates that President Rais was also complicit in Mabayas actions. First, prior to Mabayas appointment, Rais engaged in a systematic crackdown on the Wengine immigrant population in Ardhi. Secondly, during his 2010 speech where he removed Mabaya as General of the ANDF, Rais maintained his contention that hostile forces were operating within the border region and that retaliation was necessary. 25 Based on the preceding reasoning, Ardhi maintained the necessary control over
22 23

Nicaragua para 109; See also, Bosnia v. Serbia Para 39; See also, Birkland 1630 Tadic Para 131, 137, 138, 145 24 Stefan Talmon, The Various Control Tests in the Law of State Responsibilty and the Responsibility of Outside Powers for Acts of Secessionist, 58 International and Comparative Law Quarterly (2009), 12 (Hereafter Talmon). 25 Human Rights World Watch Article

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Mabaya during the period of April 2009 May 2010 as to confer his actions attributable to the State of Ardhi. Accordingly, if it is found that Mabaya is not a de jure organ of Ardhi, the overall control test establishes Mabaya as a de facto organ of the State.

II. ARDHI VIOLATED CUSTOMARY INTERNATIONAL LAW AND THE CHARTER BY RECRUITING CHILD SOLIDERS TO SERVE IN THE ARDHI NATIONAL DEFENSE FORCE The current development of international law defines a child as any person under 15 years of age. This principle is codified in a number of International Treaties, Charters, and Protocols. Most importantly, Ardhi and Wengine are both signatories to the African Charter on the Rights and Welfare of the Child. The Charter defines child as any person below the age of 18. Ardhi violated this treaty by engaging in the recruitment of children aged 14 and above from the Wengine-Ardhi border region during the period of April 2009 May 2010. Ardhis contends that it holds a reservation to the Charter which confers immunity from violation of the Charter if it engages in recruitment of children age 14 and above. This contention is without merit as the reservation is invalid under the principles set forth in the Vienna Convention on Law and Treaties. Accordingly, even if the children recruited to serve in the ANDF did not engage in open hostilities, Ardhi is still in violation of the Charter and international law. A.) Ardhis Reservation to the Charter is an Invalid Shield of Immunity Ardhi and Wengine are both signatories to the Vienna Convention on the Law of Treaties. Article 19 of the VCLT specifically prohbits reservations that are incompatible with the object and purpose of the treaty.26 Article 2(1) of the Charter specifically states that:
26

Vienna Convention on the Law of Treaties Art. 19(c), May 23, 1969, 1155 U.N.T.S. 331 ( Hereafter VCLT)

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any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent of such inconsistency be discouraged.27 Given the specific text of this article, the Charter proposes to delegitimize State practice in contravention of the Charters intent. Moreover, Article 46 of the Charter states that the Charter is the inspiration of a number of treaties and conventions on child rights. Of these conventions, one of the most profound bodies of work that inspired The Charter is the 1997 Cape Town Principles. According to the Cape Town Principles a child is also defined as any person under the age of 18.28 In light of the foregoing, it is abundantly evident that Ardhis reservations to treaty are in direct contravention of the will and spirit of the Charter. As such, when a party to a treaty holds an invalid reservation, international law affords the opportunity for said reservation to be severable from the treaty (regardless of whether an objected was made to the reservation.)29 It is respectfully requested that this Court severes Ardhis reservation to the Charter and holds Ardhi accountable for violations of the Charter by the conscription of child soldiers. B.) Ardhis Recruitment of Children Aged 15 and Under into the ANDF is in Violation of Customary International Law Irrespective of the Child Soldiers Participation in Active Hostilities In Prosecutor v. Norman, the Special Court For Sierra Leone convicted Sam Hinga Norman with the conscription of child soldiers. The Norman Court specifically stated that customary international law prohibits the conscription of children in the military.30. The Convention on the Rights of the Child defines a child as every human
27

Organization of African Unity, African Charter on the Rights and Welfare of the Child, O.A.U. Doc. CAB/LEG/24.9/49 (1990), adopted 11 July 1990m, entered into force 29 November 1999. (Hereafter the Charter). 28 Cape Town Principles and Best Practices 7 (April 30,1997), available at www.unicef.org/emerge/files/Cape_Town_Principles(l).pdf. 29 B. CARTER ET AL., INTERNATIONAL LAW 112 (5th ed. 2007). 30 Prosecutor v. Norman, Case No. SCSL-2004-12-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recrutiment), 17 (Special Court for Sierra Leone, 31 May 2004). (Hereafter

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being below the age of eighteen years.31 While there a reasonable debate as to whether customary international law defines a child as any person under the age of 18, it is without question that customary international law has crystalized to preclude conscription of children under the age of 15 into the military.32 Additionally, Protocol 1 of the Geneva Convention evidences the first instance of this principle.33 Admittedly, Ardhi is not a signatory to the GC, but the Norman Court stated in explicit terms that A norm need not be expressly stated in an international convention for it to crystallize as a crime under customary international law. 34 Ardhi engaged in open recruitment of child soldiers under the age of 15 during the April 2009 May 2010 incursions. Ardhi raises no contention to the recruitment of child soldiers. Instead, Ardhi raises its reservations to the Charter as shields from immunity. Thus, if this Court finds that Ardhis reservation to the Charter is invalid, the Court must also hold Ardhi in violation of the Charter.

CONCLUSION: In light of the aforementioned reasoning, the State of Ardhi is responsible for violations of International Law for the actions of Thomas Mabaya in his capacity of General of the Ardhi National Defense Force from the period of April 2009 to May 2010. Furthermore, Ardhi is also responsible for violating the African Charter on the Rights and Welfare of the Child for its recruitment of Wengine children stemming from military
Norman). 31 Convention on the Rights of the Child, Art. 38, November 20, 1989, 1577 U.N.T.S. 3. 32 Prohibition of child soldiering international legislation and prosecution of perpetrators 10 33 See, Geneva Convention (IV) Relative to the Protection of Civilian Persons in the Time of War Art. 14 & 24, August 12, 1949, 75 U.N.T.S. 135 (1950); See, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts Art. 77, 1125 U.N.T.S. 609 (1978) 34 Norman 38

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incursions into the Wengine-Ardhi border region between April 2009 to May 2010.

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