Team Code -

NEW LAW COLLEGE, BHARATI VIDYAPEETH DEEMED UNIVERSITY, JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

___________________________________________________________________________

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE, NETHERLANDS

THE CASE CONCERNING THE ILLEGAL DEPLOYMENT OF ARMED FORCES AND VIOLATION OF HUMAN RIGHTS

STATE OF KHOMELIA (APPLICANT)

V.

STATE OF DIKOUTI (RESPONDENT)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE -MEMORANDUM ON BEHALF OF APPLICANT-

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................................................... I STATEMENT OF JURISDICTION .......................................................................................... V STATEMENT OF FACTS ......................................................................................................... VI LEGAL ISSUES ....................................................................................................................... VIII SUMMARY OF THE SUBMISSIONS ..................................................................................... IX SUBMISSIONS ............................................................................................................................. 1 1. DIKOUTI
HAD VIOLATED THE PRINCIPLE OF NON-INTERFERENCE OF HIGH VALUE IN

INTERNATIONAL LAW .................................................................................................................... 1 1.1 1.2 1.3 2 BREACHES OF UN RECOGNIZED PRINCIPLES COMMITTED BY THE STATE OF DIKOUTI ..... 1 BREACHES OF OTHER CUSTOMARY PRINCIPLES OF INTERNATIONAL LAW ........................ 3 INTERNATIONAL COURT OF JUSTICE HAS DENOUNCED RIGHT TO INTERVENTION ............ 4

DEPLOYMENT OF ARMED FORCES VIOLATES THE TREATY ENTERED INTO BY BOTH THE STATES ............................................................................................................................................. 5 2.1 THE ACTS OF THE STATE OF KHOMELIA WERE TAKEN IN THE PURVIEW OF ITS NATIONAL SECURITY AND DEFENSE......................................................................................................... 5 2.2 2.3 2.4 THE STATE OF DIKOUTI HAS VIOLATED THE TREATY PROVISIONS .................................... 7 THE STATE OF DIKOUTI HAS VIOLATED THE PRINCIPLE OF PACTA SUNT SERVANDA ..... 8 DOCTRINE OF MARGIN OF APPRECIATION ............................................................................ 9

DEPLOYMENT OF ARMED FORCES BY THE STATE OF DIKOUTI VIOLATES INTERNATIONAL

LAW AND NEEDED IMMEDIATE CESSATION FROM THE BOUNDARIES OF KHOMELIA ........ 10

3.1 3.2

THERE EXISTS NO RIGHT OF UNILATERAL HUMANITARIAN INTERVENTION .................... 10 ARGUENDO, THE INTERVENTION
OF

DIKOUTI

WAS NOT IN CONFORMITY WITH

INTERNATIONAL LAW ........................................................................................................... 12

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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

3.3

UNITED NATIONS SECURITY COUNCIL STAND

ON

UNILATERAL HUMANITARIAN

INTERVENTION ....................................................................................................................... 14 4. THE

ARMED FORCES DEPLOYED BY THE STATE

DIKOUTI

INDULGED IN THE BLATANT

VIOLATIONS OF VARIOUS HUMAN RIGHTS OF CIVILIANS ....................................................... 16

4.1 4.2

DIKOUTI EXERCISED EFFECTIVE CONTROL OVER ICG ....................................................... 16 DIKOUTI

COMMITTED BREACHES OF LAWS OF WAR RECOGNIZED UNDER

INTERNATIONAL LAW ........................................................................................................... 17 4.3 5 FORCES OF KHOMELIA VIOLATED SEVERAL RESOLUTION OF THE UNITED NATIONS ...... 19

TO ORDER THE STATE OF DIKOUTI TO REFRAIN FROM ANY VIOLENT ACTIVITIES IN THE STATE OF KHOMELIA .................................................................................................................. 21 5.1 5.2 BREACH OF THE PRINCIPLE OF TERRITORIAL INTEGRITY .................................................. 21 FORCES OF DIKOUTI VIOLATED THE RESOLUTIONS OF GENERAL ASSEMBLY ................. 22
ORDER THE STATE OF

5. TO

DIKOUTI

NOT TO LEND ANY SUPPORT TO

ICG,

A VIOLENT

INSURGENT GROUP ....................................................................................................................... 23

6.1 6.2

FOREIGN STATES CAN AID THE GOVERNMENT, BUT NOT THE INSURGENTS ...................... 23 AID PROVIDED IN SPANISH WAR ........................................................................................... 25

SUBMISSIONS TO THE COURT ......................................................................................... XII

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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

INDEX OF AUTHORITIES

Books
1. ANN V.W. THOMAS & A.J. THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICAS 216-17 (Southern Methodist University Press, Dallas, 1956). .................................... 24 2. B.A. WORTLEY, THE LEGAL PROBLEMS OF FOREIGN INVESTMENT IN DEVELOPING COUNTRIES 185 (University of Press, .Manchester, 1965). ................................................................................. 8 3. CF. SHAW, INTERNATIONAL LAW 1039 (Cambridge University Press, Cambridge, 2003). ............ 1 4. H. KELSEN, PRINCIPLES OF INTERNATIONAL LAW 417-41 (Rinehart & Winston, New York, 1952). ............................................................................................................................................... 9 5. II INTERNATIONAL LAW COMMISSION YEARBOOK 247 (1966). ..................................................... 2 6. JEAN-MARIE HENCKAERTS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: RULES 1 (Cambridge University Press, Cambridge, 2006). ......................................................................... 21 7. LOUIS HENKIN, HUMAN RIGHTS 712 (Foundation Press, New York, 1999). ................................ 11 8. MAX HILLAIRE, INTERNATIONAL LAW AND THE UNITED STATES MILITARY INTERVENTION IN THE WESTERN HEMISPHERE 38 (Martinus Nijhoff, Israel, 1997) .................................................. 16 9. P. C. JESSUP, A MODERN LAW OF NATIONS 54 (The Macmillian Company, New York, 1948). .. 25 10. ROSALYN HIGGINS, INTERNATIONAL LAW AND CIVIL CONFLICT IN THE INTERNATIONAL REGULATION OF CIVIL WARS 170 (Thames and Hudson, London, 1972). ................................... 24 11. STEIN/VON BUTTLAR, VOLKERRECHT (Heymanns, Auflage, 10 neubearb, Aufl., 2000) 243. ....... 1 12. YORAM DINSTEIN, 1 ISRAEL YEARBOOK ON HUMAN RIGHTS 218 (Martinus Nijhoff, Israel, 1997). ............................................................................................................................................. 16

Statutes
1. Additional Protocol to the Geneva Conventions 1949................................................................... 17 2. Convention on the Rights and Duties of States in the Event of Civil Strife, 1929 .......................... 3 3. Havana Convention on the Rights and Duties of States in the Event of Civil Strife 1929 ............ 24 4. International Covenant on Civil and Political Rights, 1966 .......................................................... 21 5. Montevideo Convention on Rights and Duties of States, 1933 ....................................................... 4 6. The Constitution of the Unites States of America, 1787 ................................................................. 5 I
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7. United Nations Charter, 1945 .......................................................................................................... 1 8. Vienna Convention of the Laws of Treaties, 1969 ........................................................................ 20

Other Authorities
1. 54 UN SCOR (3988th Mtg.) 6, UN Doc. S/PV.3988 (1999). ...................................................... 12 2. INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY, at VII (quoting Secretary-General Kofi A. Annan, Millennium Report and Annual Report on the Work of the Organization) UN Docs. A/54/2000 &A/55/1 (2000) 48 & 37. ................................................ 11

Resolutions
1. Organization of American States, General Assembly Resolution 78, 1972 .................................... 3 2. UN GA Res. 2131 (XX), UN Doc A/48/535, (1965). ................................................................... 11 3. UN GA Res. 2625 XXV, UN Doc. A/RES/2625(XXV) (1970) ...................................................... 2 4. UN GA Res. 2675 XXV, UN Doc. S/RES/ 2675 XXV (1970). .................................................... 20 5. UN GA Res. 41/128, UN Doc. A/RES/41/12b (1986). ................................................................. 22 6. UN GA Res. 60/1 5, UN Doc. No. A/RES/60/1 (2005). ............................................................. 22 7. UN GA Res.37/10, UN Doc. S/RES/37/10 (1982). ....................................................................... 23 8. UN GA Res.42/22, UN Doc. S/RES/42/22 (1987). ....................................................................... 23 9. UN SC Res. 1049, UN Doc. S/RES/1049 (1996). ......................................................................... 19 10. UN SC Res. 1078, UN Doc. S/RES/1078 (1996). ......................................................................... 15 11. UN SC Res. 1097, UN Doc. S/RES/1097 (1997). ......................................................................... 15 12. UN SC Res. 1181, UN Doc. S/RES/1182 (1998). ......................................................................... 19 13. UN SC Res. 1234, UN Doc. S/RES/1234 (1999). ......................................................................... 15 14. UN SC Res. 1296, UN Doc. S/RES/1296 (2000). ......................................................................... 20 15. UN SC Res. 1373, UN Doc. S/RES/1373 (2001) ............................................................................ 2 16. UN SC Res. 912, UN Doc. S/RES/912 (1994). ............................................................................. 19

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Articles
1. Anthony Carty, Intervention and the Limits of International Law in Political Theory, International Relations and the Ethics of Intervention, POLITICAL THEORY, INTERNATIONAL RELATIONS, AND THE ETHICS OF INTERVENTION (Macmillan Publishing, London, 1993) 32. ........ 4 2. Anthony DAmato, International Law and Kosovo, 33 UNITED NATIONS LAW REPORT, UN Doc. A/RES/995 (John Carey ed., 1999)................................................................................................ 13 3. Daniel ODonnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights, 4 HUMAN RIGHTS QUARTERLY 472-474 (1982). ..................... 9 4. Dawn Steinhoff, Talking to the Enemy: State Legitimacy Concerns with Engaging Non-State Armed Groups, 45 TEXAS LAW JOURNAL 310 (2009). .................................................................. 16 5. I. Brownlie, Humanitarian Intervention, (J.N.Moore (ed)) LAW AND CIVIL WAR IN THE MODERN WORLD 224 (1974). ....................................................................................................................... 12 6. J. W. Garner, Questions of International Law in the Spanish Civil War, 31 AMERICAN JOURNAL OF INTERNATIONAL LAW 66 (1937)............................................................................................... 24 7. Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 223 (1973). ................................................................................ 10 8. Jonathan I. Charney, Anticipatory Humanitarian Intervention in Kosovo, AMERICAN JOURNAL OF INTERNATIONAL LAW 1 (1999). .................................................................................................... 11 9. Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14 AUSTRALIAN NATIONAL UNIVERSITY INTERNATIONAL LAW REVIEW 321, 326 (1998). ...................................................... 13 10. Louise, Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, BRITISH YEARBOOK OF INTERNATIONAL LAW 199 (1985). .................................... 23 11. M. Sassli and A. Bouvier, How Does Law Protect in War? 49 LEIDEN JOURNAL OF INTERNATIONAL LAW 338-339 (2009). ......................................................................................... 17 12. Ronald St. J. Macdonald, The Margin of Appreciation, THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 83, 121 (1993)............................................................................. 9 13. T. Modibo Ocran, The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping , 25 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW 18 (2002). ................ 11 14. Vaughan Lowe, International Legal Issues arising in the Kosovo Crisis, 49 INTERNATIONAL AND COMPARATIVE LAW REVIEW 934 (2000). ..................................................................................... 12

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Cases
1. Abella v. Argentina, Case No 11.137, Report No 55/97 (1997). ................................................... 17 2. Bosnia and Herzegovina v. Serbia and Montenegro, L.J.I.L. 21(1) (2008). .................................. 17 3. Greek case, 12 Yearbook ECHR 1 (1969). ...................................................................................... 6 4. Ireland v. United Kingdom, Series A/No. 35(1978). ..................................................................... 10 5. Kassem case, Military Court at Ramallah, Judgement at 806-811 (1969)..................................... 21 6. Kordic and Cerkez case, Judgment 25 & 34, Case No IT-95-14/2 (1999)................................ 17 7. Lawless v. Ireland, (No.3) EHRR 15 (1961). .................................................................................. 6 8. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ .Reports at 148 25 (2004). ....................................................................... 7 9. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Reports at 226 (July 8). .......................................................................................................................................... 18 10. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986 ICJ Reports 14 289 (June 27) ........................................................................................................ 3 11. Prosecutor v. Blaskic, Judgment 180, Case No IT-95-14 (2000)................................................ 17 12. Prosecutor v. Stanislav Galic, Opinion and Judgment Trial chamber, Case No. IT-98-29-A (2003). ............................................................................................................................................ 18 13. S.S. Lotus Case (France v. Turkey), PCIJ Series A/No. 10 at 18 (1927). ..................................... 22 14. The Corfu Channel Case (U.K. v. Alb.), 1949 ICJ Reports 4 (Apr. 9) ............................................ 4

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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

STATEMENT OF JURISDICTION

The State of Khomelia and the State of Dikouti have agreed to submit their dispute to the International Court of Justice pursuant to Article 40(1) of the Statute of the International Court of Justice and in accordance with the Compromis notified to the Court on 17 November 2012. Pursuant to Article 36(2) of the Statute, the parties recognize compulsory jurisdiction of the Court regarding legal disputes. Both parties shall accept the Courts decision as final and binding and execute it in good faith.

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STATEMENT OF FACTS

1. Khomelia is situated in the Horn of Jarica, easternmost projection of the Jarican continent. Genocide and war have historically been major challenges for the entire continent of Jarica and the Horn of Jarica is certainly no exception. 2. For many years, the Critish, Krench and other Turokean powers fought over the Khomelian region. The Critish military administration held power in the Horn of Jarica until 1950 when a United Nation Trusteeship territory under the Pitanian administration was established in exPitanian Khomeliland. 3. When the Colony was declared an independent sovereign State by the United Nations in June, 1960, the two sides, the Northern & Southern halves of Khomelia- though sharing a common Utekian enemy- quickly became opponents for control over their own government. 4. The government eventually became quite extensive, including an adequate Constitution and Supreme Court, the government ultimately decided to give the majority of its power to one man, the Executive President, a rather common theme throughout Khomelian history. 5. The Fikra Clan, the largest clan in Khomeliland, was left out of the political participation in the Khomeli government since the military coup in 1969. The Fikra Clan established an antigovernment political faction called the Khomeli National Movement (KNM). 6. The KNM was known for raiding cities and refugee camps and murdering civilians who supported the Khomelian government. 7. When fighting between famine and chaos broke out within Khomelia 1992, the United Nations (UN) took action to prevent the complete destabilization of the Horn of Jarica. 8. Throughout the 1990s and into the 2000s, Khomelia has been in an outright civil war. From this civil war, three distinct groups have seemingly emerged Islamic Courts Group (ICG), the Transitional Federal Government (TFG), and the Utekian Military Forces (UMF). 9. The TFG developed as the Strongest of over 15 national reconciliation conferences in Khomelia since 1991. The implementation of the TFG project was not put into effect until 2000 and officers were not chosen until 2004, following the approval of the governments charter. 10. When the TFG and the Utekian forces work together to constitute a strong Khomelian Federal Government, the ICG continued its insurgency all over the territory.
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11. In the wake of 2010, the ICG further solidified the movement against the TFG and in pursuance of the same, publishes articles, advertisements and posters and in the World Media explaining the ICGs mission of capturing the power 12. In order to overthrow TFG, the ICG gives a call for immediate aid from international community members. Responding to the ICGs plea for immediate aid and subsequent establishment of government in Khomelia, a country named Dikouti, declared that it will lend its support to ICG. 13. Subsequently, Dikouti had deployed its troop in the territory of Khomelia without even resorting to any peaceful talks. 14. The TFG requested the government of Dikouti to withdraw its armed forces from Khomelia to which Dikouti refused. On 1st December, 2010 a treaty named Restoration of Peace, Withdrawal of Armed Forces from Khomelia & Mutual Assistance Treaty in which it was agreed that the states will not interfere in each other internal affairs and the State of Dikouti will withdraw the armed forces from the territory of Khomelia. 15. As a result, the Government of Dikouti still retained 15% of the Dikouti army on the land of Khomelia. However, on 16th December, 2010, Mr. Rokhala Tahin, President of Human Rights Tigers declared that he will launch a countrywide protest on 18th December, 2010 against Khomelian government. 16. The TFG government issued warnings to the people of Khomelia that severe actions will be taken on the individuals who will indulge in the protest. 17. STF gave warning to the protestors, however the majority of the protestors were reluctant to cooperate. In the wake of such reluctance, the STF was forced to use force in resolving the situation. 18. In wake of such situation, the State of Dikouti not only ordered to its remaining armed forces to stay on in the territory of Khomelia but also deployed another regiment of army in the territory.

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LEGAL ISSUES

1. DIKOUTI

HAD VIOLATED THE PRINCIPLE OF NON-INTERFERENCE OF HIGH VALUE IN

INTERNATIONAL LAW 2. DEPLOYMENT OF ARMED FORCES VIOLATES THE TREATY ENTERED INTO BY BOTH THE STATES 3. DEPLOYMENT OF ARMED
FORCES BY THE

STATE

OF

DIKOUTI VIOLATES INTERNATIONAL LAW

AND NEEDED IMMEDIATE CESSATION FROM THE BOUNDARIES OF KHOMELIA

4. THE

ARMED FORCES DEPLOYED BY THE STATE

DIKOUTI

INDULGED IN THE BLATANT

VIOLATIONS OF VARIOUS HUMAN RIGHTS OF CIVILIANS

5. TO ORDER THE STATE OF DIKOUTI TO REFRAIN FROM ANY VIOLENT ACTIVITIES IN THE STATE
OF KHOMELIA

6. TO ORDER THE STATE OF DIKOUTI NOT TO LEND ANY SUPPORT TO ICG, A VIOLENT INSURGENT
GROUP

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SUMMARY OF THE SUBMISSIONS

1. DIKOUTI

HAD VIOLATED THE PRINCIPLE OF NON-INTERFERENCE OF HIGH VALUE IN

INTERNATIONAL LAW Dikouti has acted in violation of the established Principles of United Nations Charter, and of customary law obligation to refrain from the threat or use of force. The state of Dikouti has interfered in the internal matter of state of Khomelia, which is prohibited under the Customary International Law. State of Dikouti has acted in violation of the United Nations Charter and various resolution adopted by the Security council, General assembly and other international bodies, which strictly prohibit any kind of intervention by the third state party in the internal affairs of a State and also lay down a obligation to refrain from any violence. 2. DEPLOYMENT STATES The treaty entered between both the states i.e. between state of Khomelia and State of Dikouti was breached by the deployment of armed forces by the state of Dikouti. Treaty was entered between the state of Khomelia and the State of Dikouti wherein it was stipulated that both the States will refrain from any violent activities and the State of Dikouti will withdraw the armed forces from the territory of Khomelia. The TFG government witnessed protest where the governments action against the protesters are attributed to the states national security and defense since the state was in a very vulnerable phase and even minor agitation could have resulted in massive slaughter and chaos in the nation. After this incident the State of Dikouti deployed its armed forces in the state of Khomelia which was in Violation of the Treaty and International Law principles as well.
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OF

ARMED FORCES

VIOLATES THE

TREATY

ENTERED INTO BY BOTH THE

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

3. DEPLOYMENT OF ARMED FORCES BY THE STATE OF DIKOUTI VIOLATES INTERNATIONAL LAW

AND NEEDED IMMEDIATE CESSATION FROM THE BOUNDARIES OF KHOMELIA

It is to be understood that states would rarely intervene unless they would derive benefits from such an intervention, otherwise the political cost would be very high. The ICJ has noted that respect for territorial sovereignty is an essential foundation of international relations. Military intervention and the threat or use of force is condemned separately from other forms of intervention. Humanitarian intervention is indeed, an unacceptable assault on sovereignty. It is worth noting unilateral humanitarian intervention has been almost universally condemned by all states. Unilateral intervention is viewed as contravening the target state's essential right to be let alone and thus not sanctioned by the United Nations Charter. 4. THE DIKOUTI

ARMED FORCES DEPLOYED BY THE STATE

INDULGED IN THE BLATANT

VIOLATIONS OF VARIOUS HUMAN RIGHTS OF CIVILIANS

Dikouti was supporting the ICG to fight against the government in order to establish their rule over Khomelia and moreover, create a situation of widespread panic and chaos in Khomelia. Dikouti was tacitly supporting the ICG by providing aid. Moreover it is very much understood that the State of Dikouti committed violent acts on the civilians of State of Khomelia which is in contravention with the United Nations Charter, Geneva Convention and the Rules of Customary International Law. The Geneva Convention, ICCPR, various resolutions of UN and Rules of International Law during an International Armed conflict the parties to the conflict must distinguish between the combatants and the civilians. The State of Dikouti failed to do so and committed gross violations of Human Rights in the State of Khomelia.

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5. TO ORDER THE STATE OF DIKOUTI TO REFRAIN FROM ANY VIOLENT ACTIVITIES IN THE STATE
OF KHOMELIA

The activities of State of Dikouti were in violations with the United Nations charter and Resolution of General assembly, which refrains the states in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Activities of the state of Dikouti in Khomelia are also a threat to the national peace and security of the state of Khomelia as it created a situation of panic and chaos in the state of Khomelia which was already in a restless position at that time. Hence the activities of the State of Dikouti are in violation of the international law and are also a threat to the State of Khomelia, hence, should refrain from any violent activities in the State of Khomelia. 6. TO ORDER THE STATE OF DIKOUTI NOT TO LEND ANY SUPPORT TO ICG, A VIOLENT INSURGENT
GROUP

The principle of non intervention would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request by an opposition group in another state. Moreover, as per the rule of International Law, foreign states can give aid to the government, but not to insurgents therein. The states are barred from providing direct assistance to such groups, the right to provide assistance as a non neutral pertained only to aiding the incumbent government. This assistance given by the State of Dikouti is also in violation with International Law which forbids any assistance to the rebel group by the third state. Hence, it is understood that the aid provided by the state of Dikouti to the ICG is in contravention to International law and Dikouti should refrain from providing any assistance thereto.
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SUBMISSIONS

1. DIKOUTI

HAD VIOLATED THE PRINCIPLE OF NON-INTERFERENCE OF HIGH VALUE IN

INTERNATIONAL LAW As a matter of law, Khomelia claims that Dikouti has acted in violation of Article 2(4) of the United Nations Charter1, and of customary law obligation to refrain from the threat or use of force. The principle of territorial integrity of states is well established and protected by a series of consequential rules prohibiting interference within the domestic jurisdiction of states as for example Article 2(7).2 The prohibition on intervention between states has its foundation in customary law and is based on the principle of sovereignty of the states.3 International law prohibits intervention in conflict with civil war within another country, supports incitement to subversive, terrorist or armed activities intended to lead to overthrowing power relationships. 4 The state of Khomelia claims for the mentioned violations of International laws. 1.1 BREACHES OF UN RECOGNIZED PRINCIPLES COMMITTED BY THE STATE OF DIKOUTI

Article 2(4) of the United Nations Charter, 1945 reads: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.[hereinafter The Charter] The Charter, Id., Article 2(7) reads: Nothing contained in the present Charter shall authorize .the United Nations to intervene in matters which are essentially within the domestic .jurisdiction of any state. CF. SHAW, 6 INTERNATIONAL LAW 1039 (Cambridge University Press, Cambridge, 2003). STEIN/VON BUTTLAR, VOLKERRECHT 243 (Heymanns, Auflage, 2000).
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Dikouti committed the breaches of the recognized principles of United Nation including the Charter and resolution adopted by General Assembly and Security Council. 1.1.1 Article 2(4) of the United Nations Charter It quotes with approval an observation by the International Law Commission to the effect that the great majority of international lawyers today unhesitatingly hold that Article 2(4), together with other provisions of the Charter, authoritatively declares the modern customary law regarding the threat or use of force.5 1.1.2 Security Council Resolution 1373 The Security Council resolution clearly states that states should not provide any form of support to acts causing widespread panic and prevent people from planning or facilitating such attacks.6 1.1.3 General Assembly resolution 2625 (XXV) United Nations Resolutions constitute subsequent practice for interpreting United Nations Charter provisions.7 The Declaration states that armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are in violation of international law.8

5 6

II INTERNATIONAL LAW COMMISSION YEARBOOK 247 (1966). UN SC Res. 1373, decided: States to Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts,eliminating the supply of weapons. Vienna Convention on the Law of Treaties, 1969, Article 31(3) (b). UN GA Res. 2625 XXV, UN Doc. A/RES/2625(XXV) (1970).[hereinafter Friendly Declaration]
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1.2 BREACHES OF OTHER CUSTOMARY PRINCIPLES OF INTERNATIONAL LAW Dikouti committed breaches of the recognized principles of customary international law. Acts constituting a breach of the customary principle of non-intervention will constitute a breach of the principle of non-use of force in international relations.9 1.2.1 Resolution 78 adopted by the General Assembly of the Organization of American States The resolution reflects the customary law and makes a clear statement for states to strictly observe the principle of non intervention to ensure peaceful coexistence and provides with an obligation not to support or promote any armed activities against another state. Para 1 10 and Para 311 of the resolution are relevant in the present case. 1.2.2 Convention on the Rights and Duties of States in the Event of Civil Strife Art. 1(1)12 of the convention guides the nations to prevent nationals from participating in any actions of civil strife.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986 ICJ Reports 14 289 (June 27) (dissenting opinion of Schwebel, J.).[hereinafter Nicaragua Case] Para 1 of the General Assembly Resolution 78, 1972 reads: To reiterate the principles of non intervention as a means of ensuring peaceful coexistence among them and to refrain from committing any direct or indirect act that might constitute a violation of those principle. Doc No. CP/RES.78 (1972).[hereinafter Resolution 78] Resolution 78, Id., Para 3 reads: Reaffirm the obligation of these states to refrain from. Organizing, supporting, promoting, financing, instigating, or tolerating subversive armed activities against .another state and from intervening in a civil war in another state or in its internal struggles. Article 1(1) of Convention on the Rights and Duties of States in the Event of Civil Strife, 1929 reads: To use all means at their disposal to prevent the inhabitants of their territory, nationals
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11

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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

1.2.3 Montevideo Convention on Rights and Duties of States Article 813 of the convention deprives the state of any right to intervene in the internal or external affairs of another State. 1.3 INTERNATIONAL COURT OF JUSTICE HAS DENOUNCED RIGHT TO INTERVENTION The ICJ had denounced any claimed right to intervention in the 1949 Corfu Channel case14, in which it held nonintervention to be a corollary of the principle of the sovereign equality of states15 and a principle of customary international law. Similarly, in the Nicaragua case, relying on the definition of intervention found in the Friendly Relations Declaration,16 the ICJ found that the U.S. had violated international law, specifically by training, arming, equipping, financing and supplying the Contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua.17

or aliens, from participating in, gathering elements, crossing the boundary or sailing from their territory for the purpose of starting or promoting civil strife.
13

Article 8 of the Montevideo Convention on Rights and Duties of States, 1933 reads: No state has the right to intervene in the internal or external affairs of another. The Corfu Channel Case (U.K. v. Alb.), 1949 ICJ Reports 4 (Apr. 9).[hereinafter Corfu Channel] Anthony Carty, Intervention and the Limits of International Law in Political Theory, International Relations and the Ethics of Intervention, POLITICAL THEORY, INTERNATIONAL RELATIONS AND THE ETHICS OF INTERVENTION (Macmillan Publishing, London, 1993) 32. Friendly Declaration, Supra 8. Nicaragua Case, Supra 9 at 146.
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14

15

16 17

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

DEPLOYMENT STATES

OF

ARMED FORCES

VIOLATES THE

TREATY

ENTERED INTO BY BOTH THE

Dikouti breached the treaty signed between both the states on 1st December, 201018 by deployment of armed forces in the State of Khomelia. The treaty stipulated that both the States will refrain from any violent activities and the State of Dikouti will withdraw the armed forces from the territory of Khomelia.19 2.1 THE STATE KHOMELIA NATIONAL

ACTS OF THE

OF

WERE TAKEN IN THE PURVIEW OF ITS

SECURITY AND DEFENSE In the present case, the acts done by the Khomelian government or TFG against the protestors were as a result of National Security and defense. It is understood that every government has the right to take forceful measures to preserve its existence.20 Moreover under Article 521 of the Treaty, it was decided that priority to be given to the cases concerning national security and integrity. 2.1.1 Defining the time of Public Emergency

18 19 20

Compromis, 21. Compromis, 21. Article 1(8) of The Constitution of the Unites States of America, 1787 reads: Congress has the power to provide calling forth of the militia to execute the laws of the Union, suppress insurrections, and repel .invasions. Article 5 of The Restoration of Peace, Withdrawal of Armed Forces from Khomelia and Mutual Assistance Treaty, 2010 reads: In case, a question of national security and integrity is involved in pursuance of the treaty, the state shall give priorities to such matters and shall cooperate with each other.[hereinafter The Treaty]
5
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21

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

In Lawless v. Ireland,22 the European Courts of Human Rights defined time of public emergency as an exceptional situation of crisis or emergency which afflicts the population and constitutes a threat to the organized life of the community of which the community is composed. The definition was further developed and clarified in the Greek case.23 There are four essentials to prove that public emergency prevailed in the state of Khomelia.24 2.1.1.1 It must be actual or imminent Throughout the 1990s and into the 2000s, Khomelia has been in an outright civil war. 25 The situation had worsened after the deployment of forces by the state of Dikouti.26 2.1.1.2 Its effects must involve the whole nation The Human Rights Tigers, an active human rights NGO declared to launch a countrywide protest on 18th December, 2010.27 So, it is clear that the uprising from this declaration and subsequent protest involved the whole nation. 2.1.1.3 The continuance of the organized life of the community must be threatened

22 23 24 25 26 27

Lawless v. Ireland, (No.3) EHRR 15 (1961). Greek case, 12 Yearbook ECHR 1 (1969). Id. Compromis, 14. Compromis, 19. Compromis, 22.
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The state of Khomelia was under a constant threat of the disruption of its organized life as the ICG, an insurgent group, declared its intention to overthrow the existing government and establish themselves as the sole repository of peoples fate.28 2.1.1.4 The crisis or danger must be exceptional The danger posed was exceptional as if this action was allowed to carry put by the NGO, this could have really hampered the very existence of the nation and the organized life of the state. 2.1.2 Immediate necessity of saving the life of Nation In the present case, at the time of protest there was a great and serious concern towards the government regarding the National security. The TFG deployed a Special Task Force (STF) to prevent any kind of uprising against the government.29 STF issued warning to the people who raised a voice in the protests who were reluctant to cooperate.30 The protest carried out by the civilians could have resulted into more worsening situations which threatened the very life of the nation. So the government was forced to take such action against protestors. Further, the principle of national security was recognized in the ICJ Advisory opinion on legal consequences of the construction of wall in the occupied Palestinian territory.31 2.2 THE STATE OF DIKOUTI HAS VIOLATED THE TREATY PROVISIONS

28 29 30 31

Compromis, 16. Compromis, 21. Compromis, 21. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ .Reports at 148 25 (2004).
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State of Khomelia had violated the treaty by not following the treaty provisions stipulated therein. 2.2.1 Obligation to withdraw forces from Khomelia Article 232 of the Treaty stipulates that Dikouti shall withdraw its armed forces from Khomelia without any delay. But, the state of Dikouti retained 15% of the Dikouti army on the land of Khomelia.33 2.2.2 Dikouti promised to assist Khomelia in pursuance of peace State of Dikouti has also violated the Article 434 of the treaty. It was decided in the treaty that each party shall assist each other and provide every possible aid for maintaining peace and order.
Contrary to the promise, they raised military attacks and provided support to the ICG for making power shift in Khomelia.35

2.3 THE STATE OF DIKOUTI HAS VIOLATED THE PRINCIPLE OF PACTA SUNT SERVANDA The sanctity of contractual arrangement is expressed in the principle of Pacta Sunt Servanda, whose rationale is that the parties to the treaty bound to respect it in good faith. 36 Also, Article
32

The Treaty, Supra 21, Article 2 reads: The State of Dikouti shall withdraw its armed forces from the territory of Khomelia without any delay and cooperate with the State of Khomelia to maintain peace provided the State of Khomelia does not incur any violent acts on its civilians. Compromis, 22 The Treaty, Supra 21, Article 4: Each party shall assist and provide every possible aid and mutual assistance to each other in the matters of maintaining peace and order. Compromis, 17. B.A. WORTLEY, THE LEGAL PROBLEMS OF FOREIGN INVESTMENT 185 (University Press, .Manchester, 1965).
IN

33 34

35 36

DEVELOPING COUNTRIES
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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

2637 of the Vienna Convention on Law of Treaties stipulates the principle of Pacta Sunt Servanda. The treaty was binding upon the parties to it38 and must be performed in good faith. By so, violated treaty and the principle of Pacta Sunt Servanda of high value in International Law.39 2.4 DOCTRINE OF MARGIN OF APPRECIATION In assessing whether a public emergency exists and what steps are necessary to address it, states are granted a so-called margin of appreciation. The doctrine of margin of appreciation allows the court to escape the dilemma of how to remain true to its responsibilit y to develop a reasonably comprehensive set of review principles appropriate for application across the entire convention, while at the same time recognizing the diversity of political, economic, cultural and social situations in the societies of the contracting parties.40 The margin of appreciation represents the discretion left to a state in ascertaining the necessity and scope of measures to be taken in the circumstances prevailing within its jurisdiction.41 2.4.1 State of Khomelia is in better position to examine the exigencies of the Situation

37

Article 26 of Vienna Convention on Law of Treaties, 1969 reads: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. The Treaty, Supra 21, Article 8 reads: No other State is bound by the provisions of this treaty except for The State of Khomelia and the State of Dikouti. H. KELSEN, PRINCIPLES 1952).
OF INTERNATIONAL

38

39

LAW 417-41 (Rinehart & Winston, New York,

40

Ronald St. J. Macdonald, The Margin of Appreciation, THE EUROPEAN SYSTEM PROTECTION OF HUMAN RIGHTS 83 & 121 (Ronald St. J. Macdonald, ed., 1993).

FOR THE

41

Daniel ODonnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights, 4 HUMAN RIGHTS QUARTERLY 472-474 (1982).
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In Ireland v. United Kingdom42, the European Court held that it falls in the first place to each contracting state, with its responsibility for the life of [its] nation, to determine whether that life is threatened by a public emergency and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position.43 So, the state of Khomelia was in a better position to judge the exigencies of the situation and so it took the action against the civilians in order to curb with the situation of public emergency 3 DEPLOYMENT OF ARMED FORCES BY THE STATE OF DIKOUTI VIOLATES INTERNATIONAL LAW
AND NEEDED IMMEDIATE CESSATION FROM THE BOUNDARIES OF KHOMELIA

Rougiers Le Thorie de lIntervention dHumanit44 in his work, rejected the idea of unilateral intervention. It is to be understood that states would rarely intervene unless they would derive benefits from such an intervention, otherwise the political cost would be very high. 45 Moreover, in the Corfu Channel case, The Court noted that respect for territorial sovereignty is an essential foundation of international relations.46 3.1 THERE EXISTS NO RIGHT OF UNILATERAL HUMANITARIAN INTERVENTION

42 43 44

Ireland v. United Kingdom, Series A/No. 35(1978). Id. 207. Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 223 (1973).[hereinafter Fonteyne] Id. Corfu Channel, Supra 14.
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45 46

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

The General Assembly adopted in 1965 a Declaration on the Inadmissibility of Intervention47 which forbids all forms of intervention in the internal or external affairs of other states. Military intervention and the threat or use of force is condemned separately from other forms of intervention.48 Humanitarian intervention is, indeed, an unacceptable assault on sovereignty.49 3.1.1 The idea of unilateral Humanitarian intervention is in contravention to states essential rights It is thus worth noting unilateral humanitarian intervention has been almost universally condemned by all states.50 Unilateral intervention is viewed as contravening the target state's essential right to be let alone51 and thus not sanctioned by the United Nations Charter. State neighbors do not in fact intervene to safeguard human rights, though they may sometimes use that pretext.52 Relying on to the Kosovo situation it was said that the so called doctrine of Humanitarian Intervention can lead to an escalation of International violence, discord and disorder, and diminish protection of human rights worldwide.53

47 48 49

UN GA Res. 2131 (XX), UN Doc A/48/535, (1965). Id. 1. INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY, at VII (quoting Secretary-General Kofi A. Annan, Millennium Report and Annual Report on the Work of the Organization) UN Doc. A/54/2000 &A/55/1 (2000) 48 & 37. T. Modibo Ocran, The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping, 25 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW 18 (2002). LOUIS HENKIN, HUMAN RIGHTS 712 (Foundation Press, New York, 1999). Id. at 714. Jonathan I. Charney, Anticipatory Humanitarian Intervention in Kosovo, AMERICAN JOURNAL OF INTERNATIONAL LAW 1 (1999).
11
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50

51 52 53

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

3.1.2 State practice proving that no right to Unilateral Humanitarian Intervention exists. The cases of the murdered Chinese in Indonesia, the war against Southern Sudanese, the events in Rwanda, Burundi, Kashmir, Naga and South Africa54 would have justified humanitarian intervention but states have not engaged themselves in the protection of the affected population and thus have reaffirmed the existing principle of non intervention. Moreover, The Russian ambassador to the UN, in the start of the NATO campaign against Yugoslavia, said that the justification of attacks with the need for humanitarian intervention was completely untenable.55 3.2 ARGUENDO, THE INTERVENTION OF DIKOUTI WAS NOT IN CONFORMITY WITH INTERNATIONAL LAW Intervention may be in very remote conditions be considered legitimate if it qualifies certain degree of correspondence with International law and the intention behind the Intervention is of paramount importance. 3.2.1 Articulation by Security Council Authority from the Security Council is necessary for making Intervention.56 The United Nations Charter under its chapter VIII regarding regional arrangements explicitly provides that when a regional enforcement action has to take place, it requires a prior authorization from the Security

54

I. Brownlie, Humanitarian Intervention (J.N.Moore (ed)), LAW MODERN WORLD 224 (1974). 54 UN SCOR (3988th Mtg.) 6, UN Doc. S/PV.3988 (1999).

AND

CIVIL WAR

IN THE

55 56

Vaughan Lowe, International Legal Issues arising in the Kosovo Crisis, 49 INTERNATIONAL AND COMPARATIVE LAW REVIEW 934 (2000).
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Council.57 The assent of the Security Council is essential for making any such actions against the State under the aegis of Chapter VII58 being the sole repository of international peace and security.59 3.2.2 Intervention by a multilateral force The Intervention was carried by a single State i.e. Dikouti, whereas there should be joint action taken by states through United Nations Security Council or through a regional organization as was the case in Sierra Leone.60 3.2.3 Projected damage caused by the Intervention cannot be more to the jeopardy The damage arising out of the Intervention should not be more than the existing state. 61 It is noted that after the deployment of the troops by Dikouti in the territory of Khomelia the issue worsened further and supporters started campaigning against the TFG government.62

57

The Charter, Supra 1, Article 53 reads: The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council. The Charter, Supra 1, Chapter VII reads: Actions with respect to threats to the peace, Breaches of the peace, and acts of Aggression. The Charter, Supra 1, Article 24(1) reads: In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14 AUSTRALIAN NATIONAL UNIVERSITY INTERNATIONAL LAW REVIEW 321, 326 (1998).

58

59

60

61

Anthony DAmato, International Law and Kosovo, 33 UNITED NATIONS LAW REPORT, UN Doc. A/RES/995 (John Carey ed., 1999).
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3.2.4 The Intervening state must have an overriding humanitarian motive The most important essential is that the intervention should have an overriding humanitarian motive.63 The ICG gave a call for immediate aid for their mission of capturing the power in the state64 and Dikouti responding to the ICGs plea declared to lend its support.65 Hence, it is clear that the state of Dikouti had a political motive behind deployment of its troops and justifying it under the guise of humanitarian intervention. 3.2.5 Intervener must exhaust all peaceful remedies before resorting to a use of force Perhaps the most fundamental principle of international law is to maintain peace amongst the nations and try to settle by peaceful negotiations before resorting to peace in any matter.66 In the instant case, Dikouti deployed its troops in the territory of Khomelia without even resorting to any peaceful talks.67 3.3 UNITED NATIONS SECURITY COUNCIL STAND ON UNILATERAL HUMANITARIAN INTERVENTION The very idea of Unilateral Humanitarian Intervention is viewed as presenting a greater risk of political motives disguised as concern for human rights and victim protection. The United

62 63 64 65 66 67

Compromis, 19. Fonteyne, Supra 44 at 258-60. Compromis, 16. Compromis, 17. Fonteyne, Supra 63. Compromis, 18.
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Nations Security Council has very rightly taken a step of prohibiting the states to commit any such acts. 3.3.1 External States are under an obligation to refrain from interference The Council's 1997 peace plan called for the withdrawal of all external forces and reaffirmation of respect for the national sovereignty and the territorial integrity of Zaire.68 More recently, the Council has invoked traditional non intervention language from the Friendly Relations Declaration, reaffirming that states are under an obligation to respect the territorial integrity, political independence and national sovereignty and refrain from any interference in each others internal affairs.69 3.3.2 United Nations response to Individual state Intervention When civil war erupted in Congo in 1996, the Security Council called upon States in the region to desist from any act that may further exacerbate the situation and asked all states to respect the sovereignty and territorial integrity of the States in the region.70 These were directed at Rwanda, Uganda, and other countries that had provided support to one of the various factions struggling for power.

68 69 70

UN SC Res. 1097, UN Doc. S/RES/1097 (1997). UN SC Res. 1234, UN Doc. S/RES/1234 (1999). UN SC Res. 1078, UN Doc. S/RES/1078 (1996).
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4. THE

ARMED FORCES DEPLOYED BY THE STATE

DIKOUTI

INDULGED IN THE BLATANT

VIOLATIONS OF VARIOUS HUMAN RIGHTS OF CIVILIANS

Dikouti was supporting the ICG to fight against the government in order to establish their rule over Khomelia71 and moreover, created a situation of widespread panic and chaos in Khomelia. Dikouti was tacitly supporting the ICG. As per the settled principles of International Law In an internal conflict, when the third party turns to intervention on behalf of the rebels, an international conflict comes into being.
72

Under the Geneva Convention the nature of the

conflict changes from internal to international when the third party state intervenes on behalf of the insurgent group.73 4.1 DIKOUTI EXERCISED EFFECTIVE CONTROL OVER ICG Dikouti committed breaches in international law pertaining to the territorial integrity of Khomelia as it was tacitly supporting ICG in insurgent activities. It is thus noted that Dikouti responded to the ICGs plea for immediate aid and subsequent establishment of government in Khomelia.74 No state may organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of regime of another state, or interfere in civil strife in another state.75 The principle of effective control has been recognized
71 72 73

Compromis, 18. YORAM DINSTEIN, 1 ISRAEL YEARBOOK ON HUMAN RIGHTS 218 (Martinus Nijhoff, Israel, 1997). Dawn Steinhoff, Talking to the Enemy: State Legitimacy Concerns with Engaging Non-State Armed Groups, 45 TEXAS LAW JOURNAL 310 (2009). Compormis, 17. MAX HILLAIRE, INTERNATIONAL LAW AND THE UNITED STATES MILITARY INTERVENTION IN THE WESTERN HEMISPHERE 38 (Martinus Nijhoff, Israel, 1997)
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74 75

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

by the same court in cases such as Nicaragua Case76 and Bosnia and Herzegovina v. Serbia and Montenegro77 where the Court relied on the Effective Control test. 4.2 DIKOUTI COMMITTED BREACHES OF LAWS OF WAR RECOGNIZED UNDER INTERNATIONAL LAW The principle of distinction between civilians and the combatants is one of the fundamental principles of modern international law.78 The importance of ensuring that civilians were not targeted was echoed by the ICTY in Blaskic79, and Kordic and Cerkez case.80 The principle of distinction was also affirmed by the Inter-American Commission on Human Rights in the Abella v. Argentina.81 4.2.1 Attacks were on the civilians It is to be noted that insurgency caused by the armed forces of Dikouti attacked on the civilians and as per the Convention and humanitarian on the civilians prohibited. Article 50(1) 82 of Additional protocol defines that the population is a civilian under the meaning of International Law.

76 77 78

Nicaragua Case, supra note 9, 114. Bosnia and Herzegovina v. Serbia and Montenegro, L.J.I.L. 21(1) at 63-64 (2008). M. Sassli and A. Bouvier, How Does Law Protect in War? 49 LEIDEN JOURNAL INTERNATIONAL LAW 338-339 (2009). Prosecutor v. Blaskic, Judgment 180, Case No IT-95-14 (2000). Kordic and Cerkez case, Judgment 25 & 34, Case No IT-95-14/2 (1999). Abella v. Argentina, Case No 11.137, Report No 55/97 (1997). Additional Protocol to the Geneva Conventions 1949, Article50 (1) reads: A civilian is any person who does not belong to one of the categories of persons referred to in Article 4.[hereinafter Additional Protocol]
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OF

79 80 81 82

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

4.2.1.1 Duty to demarcate between civilians and combatants Article 4883 of the Additional Protocol lays an obligation on the parties to the conflict to distinguish between civilians and combatants. In the Nuclear weapon case84, the International Court of Justice in the advisory opinion confirmed that the principle of distinction holds that States must not make civilians the object of attack. 4.2.1.2 Civilians shall be protected during an armed Conflict Article 51(1)85, Article 51(2)86 and Article 51(3)87 of the Additional Protocol I contain provisions related to the protection of the civilians during armed conflict. In the case of Prosecutor v. Stanislav Galic88 the ICTY held that in case of armed conflict attacks should not be directed towards the civilians. 4.2.1.3 Civilians should not be made subject of Attacks
83

Additional Protocol, Supra 82, Article 48 reads: In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Reports at 226 (July 8). Additional Protocol, Supra 82, Article51 (1) reads: The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. Additional Protocol, Supra 82, Article51 (2) reads: The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. Additional Protocol, Supra 82, Article 51 (3), reads Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. Prosecutor v. Stanislav Galic, Opinion and Judgment Trial chamber, Case No. IT-98-29-A (2003).
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84

85

86

87

88

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

Article 52(1)89 prohibits the attack on civilian objects and specifically stipulates that civilians should not be an object of attack. The United Nations Security Council has repeatedly condemned the failure to ensure that civilians are not made subject to attack, either deliberately or through negligence, in conflicts such as Rwanda90, Burundi91 and Sierra Leone.92 4.2.2 Fundamental rights to civilians during armed Conflict Article 75 of the additional protocol gives fundamental guarantee to the civilians during an armed conflict. Article 75 (2) (a)93 and Article 75 (2) (e)94 prohibits any kind of violent act at any time and any place whatsoever against the civilians. It can be very well deduced from the facts that during insurgent activities, the acts of violence were committed against the civilians by the forces of Dikouti.95 4.3 FORCES OF KHOMELIA VIOLATED SEVERAL RESOLUTION OF THE UNITED NATIONS

89

Additional Protocol, Supra 82, Article52 (1), reads Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives. UN SC Res. 912, UN Doc. S/RES/912 (1994). UN SC Res. 1049, UN Doc. S/RES/1049 (1996). UN SC Res. 1181, UN Doc. S/RES/1182 (1998). Additional Protocol, Supra 82, Article 75 2(a), reads: Violence to the life, health, or physical or mental well-being of persons, in particular. Additional Protocol, Supra 82, Article 75 2(e), reads: Threats to commit any of the foregoing acts. Compromis, 19.
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90 91 92 93

94

95

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

The armed forces of Dikouti while indulging in insurgency committed various violent acts which have violated the resolutions of the United Nations. United Nations Resolution constitutes subsequent practice for interpreting United Nations Charter provisions.96 4.3.1 Forces of Khomelia violated the resolution of United Nations The State of Khomelia while committing their counter insurgency activities committed blatant violations of human rights and thus in turn violated Security Council resolutions. 4.3.1.1 Resolution 1296 (2000) of the Security Council The Security Council laid emphasis on the protection of civilians in armed conflict where it reaffirmed the principle of distinction as being applicable to all armed conflicts.97 It is noted that in pursuance of such military actions, the state of Dikouti killed many civilians out which many were women, senior citizens and children.98 4.3.1.2 Forces of Dikouti Violated the resolution of General Assembly Resolution (2675 XXV) states that in conduct of the military operations during armed conflict distinction must be made between civilians and the combatants and hence not be made subject to military operations.99 4.4 FORCES
RIGHTS

OF

DIKOUTI VIOLATED

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

96 97 98 99

Supra 7. UN SC Res. 1296, UN Doc. S/RES/1296 (2000). Compromis, 19. UN GA Res. 2675 XXV, UN Doc. S/RES/ 2675 XXV (1970).
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Armed forces of Dikouti violated Article 6 of the covenant as it confers the right to life.100 This is the very basic Human Rights conferred on every individual by law. Also, Forces of Dikouti have violated the Rule 1101 of the customary international humanitarian law which prohibits any attack on the civilians by the parties to the conflict. In the kassem case102, Israels military court at Ramallah recognized the immunity of civilians from direct attacks as one of the basic rules of international humanitarian law. 5 TO ORDER THE STATE OF DIKOUTI TO REFRAIN FROM ANY VIOLENT ACTIVITIES IN THE STATE
OF KHOMELIA

It is very much clear from the facts that the State of Dikouti responding to the plea of ICG deployed its troops in the state of Khomelia without resorting to any peaceful talks103. ICG while conducting insurgent activities along with the Dikouti forces led to the killing of many civilians.104 5.1 BREACH OF THE PRINCIPLE OF TERRITORIAL INTEGRITY

100

Article 6 (1) of International Covenant on Civil and Political Rights, 1966 reads: Every human being has the inherent right to life, this right shall be protected by law. JEAN-MARIE HENCKAERTS, BECK DOSWALD LOUISE, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: RULES, 1 (Cambridge University Press, Cambridge, 2006). Rule 1 reads: The parties to the conflict must at all time distinguish between civilians and combatants. Attack may only be directed against combatants. Attack must not be directed against the civilians. Kassem case, Military Court at Ramallah, Judgement at 806-811 (1969). Compromis, 18. Compromis, 19.
21
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101

102 103 104

JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

Every state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other state or country.105 In Lotus Case, the court observed that the first and foremost restriction imposed by international law upon a state is that a state may not exercise its power in any form in the territory of another state.106 5.1.1 Article 5 of Declaration on the right to Development The Declaration on the Right to Development107 adopted by the General Assembly in resolution 41/128 called in for states to take resolute action to eliminate threats against national sovereignty, national unity and territorial integrity. 5.1.2 World Summit Outcome 2005 In this summit, the world leaders reaffirmed to support all efforts to uphold the sovereign equality of all states, [and] respect their territorial integrity and political independence.108 5.2 FORCES OF DIKOUTI VIOLATED THE RESOLUTIONS OF GENERAL ASSEMBLY Forces of Dikouti while supporting ICG and indulging in violent activities, acted in contravention to the recognized principle of United Nations which prohibits the use of force by one state in others territory. 5.2.1 Resolution 42/22 of the General Assembly

105 106
107

Friendly Declaration, Supra 8. S.S. Lotus Case (France v. Turkey), PCIJ Series A/No. 10 at 18 (1927).

UN GA Res. 41/128, UN Doc. A/RES/41/12b (1986). UN GA Res. 60/1 5, UN Doc. No. A/RES/60/1 (2005).
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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

Every State has the duty to refrain from the threat or use of force against the territorial integrity or political independence of any State. Such an action constitutes a violation of international law and of the United Nations Charter and entails international responsibility. The principle of refraining from the threat or use of force in international relations is universal in character. 109 5.2.2 Forces of Dikouti violated the Manila Resolution As per the Manila declaration110 all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. 6. TO ORDER THE STATE OF DIKOUTI NOT TO LEND ANY SUPPORT TO ICG, A VIOLENT INSURGENT
GROUP

The principle of non intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another state. Unilateral interventions do not receive the legitimate blessing provided in a multilateral setting, the international system has looked upon such operations with extreme skepticism.111 6.1 FOREIGN STATES CAN AID THE GOVERNMENT, BUT NOT THE INSURGENTS If Intervention at the request of the opposition was allowed, this would permit any state to intervene at any moment in the internal affairs of another state. Such a situation does not
109 110 111

UN GA Res.42/22, UN Doc. S/RES/42/22 (1987). UN GA Res.37/10, UN Doc. S/RES/37/10 (1982).

Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government. .BRITISH YEARBOOK OF INTERNATIONAL LAW 199 (1985).
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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

correspond to the present state of international law.112 Under customary international law foreign states can give aid to a parent state, but not to insurgents therein.113 6.1.1 Obligation of states in event of Insurgency As far as Intervention or third-party assistance is concerned, When a foreign state recognizes a state of insurgency, it merely acknowledges the fact of the insurrection, but does not create any new international status between it and the parties to the strife.114 The states are barred from providing direct assistance to such groups, the right to provide assistance as a non neutral pertained only to aiding the incumbent government.115 6.1.2 Havana Convention on the Rights and Duties of States in the Event of Civil Strife In the same regard, Article 1(3) of the Convention provides that states should forbid in supplying arms or war materials with the only exception i.e. it is allowed when meant for the government.116 So it can be very well deduced that assistance to the incumbent government is permissible, not to the insurgent group.

112 113

Nicaragua Case, Supra 9. J. W. Garner, Questions of International Law in the Spanish Civil War, 31 AMERICAN JOURNAL OF INTERNATIONAL LAW 66 (1937). ANN V.W. THOMAS & A.J. THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT THE AMERICAS 216-17 (Southern Methodist University Press, Dallas, 1956).
IN

114

115

ROSALYN HIGGINS, INTERNATIONAL LAW AND CIVIL CONFLICT, IN THE INTERNATIONAL REGULATION OF CIVIL WARS 170 (Thames and Hudson, London, 1972). Article 3(1) of Havana Convention on the Rights and Duties of States in the Event of Civil Strife 1929, reads: To .forbid the traffic in arms and war material, except when intended for the Government, while the belligerency of .the rebels has not been recognized, in which latter case the rules of neutrality shall be applied.
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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

6.2 AID PROVIDED IN SPANISH WAR It is worth noting in this regard that In the Spanish Civil War, it was in accordance with international law for France and Russia to aid the existing government. The aid given by Italy and Germany to the insurgents was not in accordance with law of nations. The nonintervention policy of the United States was likewise in accordance with law, as aid to the legitimate government is discretionary.117 Hence, Ex factis jus oritur, it is understood that the aid provided by the state of Dikouti to the ICG is in contravention to International law and Dikouti should refrain from providing any assistance.

117

P. C. JESSUP, A MODERN LAW OF NATIONS 54 (The Macmillian Company, New York, 1948).
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JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RIGHTS, 2012

SUBMISSIONS TO THE COURT

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and authorities cited, this Court may be pleased to adjudge and declare that:

1. Dikouti had violated the principle of non-interference of high value in International law 2. Deployment of Armed Forces violates the Treaty entered into by both the States 3. Deployment of armed forces by the State of Dikouti violates International law and needed immediate cessation from the boundaries of Khomelia 4. The armed forces deployed by the state Dikouti indulged in the blatant violations of various human rights of civilians 5. To order the State of Dikouti to refrain from any violent activities in the State of Khomelia 6. To order the state of Dikouti not to lend any support to ICG, a violent insurgent group

Respectfully submitted on behalf of the Applicant,

Agents for the Applicant

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