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CASE CONCERNING
THE FROST FILES
State of Amestonia
(Applicant)
V.
Federal Republic of Riesland
(Respondent)
I
RELEASE OF ITS NATIONALS AND COMPENSATION FOR THE VALUE OF THE
CONFISCATED PROPERTY; ................................................................................................. 10
A. The arrest and expropriation committed by Amestonia violated the Broadcasting Treaty
10
1. VoR’s premises, its equipment, and its personnel were protected by immunity ........... 10
i) The facilities did not cease functioning as envisaged by the BT until after Amestonia
breached the Treaty ............................................................................................................... 11
2. In any event, the facilities and their personnel were protected by diplomatic immunity,
since they were a special diplomatic mission ........................................................................ 12
i) VoR is a special mission ................................................................................................ 12
ii) Customary International Law grants immunity to special missions .............................. 13
B. The actions of Amestonia constitute internationally wrongful acts, subject to
compensation ......................................................................................................................... 14
1. Amestonia violated its international obligations ............................................................ 14
i) Pacta sunt servanda ........................................................................................................ 14
ii) Obligation to protect missions ....................................................................................... 15
2. Internationally wrongful acts must result in compensation for the affected party and
Margaret Mayer, along with the other VoR personnel must be released by Amestonia ....... 16
III- RIESLAND’S DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM
ACT IS CONSISTENT WITH ITS OBLIGATIONS UNDER INTERNATIONAL LAW,
AND THE COURT HAS NO AUTHORITY TO ORDER EITHER KAFKER’S RELEASE
OR THE DISCLOSURE OF THE INFORMATION RELATING TO HIS APPREHENSION
17
A. Riesland’s detention of Joseph Kafker under the Terrorism Act is consistent with its
obligations under International law ....................................................................................... 17
1. Joseph Kafker represents a threat to Riesland’s public safety and national security in the
terms of the Terrorism Act .................................................................................................... 17
2. The detention of Joseph Kafker is under the Terrorism Act is consistent with the
procedural safeguards provided by Article 9 of the ICCPR .................................................. 18
i) Right to be informed of the reasons for the detention .................................................... 18
ii) Right to trial within a reasonable time ........................................................................... 19
iii) Right to challenge detention ........................................................................................... 21
B. The Court has no authority to order either Kafker’s release or the disclosure of the
information relating to his apprehension. .............................................................................. 23
1. The Court has no authority to order Kafker’s release .................................................... 23
II
2. The Court has no authority to order the disclosure of the information relating to
Kafker’s apprehension ........................................................................................................... 24
i) State Practice regarding non-disclosure of the information that serves as a basis for
preventive detention .............................................................................................................. 25
a. Israel ............................................................................................................................... 25
b. United States .................................................................................................................. 26
c. United Kingdom ............................................................................................................. 26
IV- THE CYBER ATTACKS AGAINST THE COMPUTER SYSTEMS OF THE AMES
POST AND CHESTER & WALSINGHAM CANNOT BE ATTRIBUTED TO RIESLAND,
AND IN ANY EVENT DID NOT CONSTITUTE AN INTERNATIONALLY WRONGFUL
ACT. 27
A. The cyber attacks cannot be attributed to Riesland ........................................................ 27
1. The standard of proof to be used must be evidence beyond a reasonable doubt ........... 27
2. Amestonia failed to provide sufficient conclusive and evidence linking the alleged
cyber-attacks to Riesland ....................................................................................................... 28
B. In any event, the purported actions did not constitute an internationally wrongful act . 29
1. The cyberattacks against the computer systems at the Ames Post and Chester and
Walsingham do not amount to a use of force ........................................................................ 29
2. In any event, international law permits the use of force as self-defense ........................ 31
PRAYER FOR RELIEF ............................................................................................................... 33
III
INDEX OF AUTHORITIES
USA v. Sissoko
Li Weixum v. Bo Xilai
Decision 27 February 1984 Case No. 4 StR 396/83, 80 ILR (1989) 388 (Germany Federal
Supreme Court)
Case Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 26
February 2007
Case Concerning Armed Activities On The Territory Of The Congo (Democratic
Republic Of The Congo V. Uganda) Judgment Of 19 December 2005
Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949
Case Relating to the Territorial Jurisdiction of the International Commission of the River
Oder, Permanent Court of International Justice, September 10, 1929.
IV
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984
S.S. Lotus, France v. Turkey, Judgment, 7 September 1927, Permanent Court of
International Justice (PCIJ),
Case Donoso v. Panama, Judgment, inter-Am. Ct. H.R., No. 200, Jan2009
Case Escher v. Colombia, Judgment, Inter- Am. Ct. H.R.
Case Gabriele WEBER and Cesar Richard SARAVIA against Germany (Weber v
Germany), App. no. 54934/00
Case Ratoru v. Romania , App. No. 283/95 ,Eur. Ct. H.R. 192,
Case Klass and others v. Germany, judgment of 6 September 1978, Eur. Ct. H. R. 4 .
Leander v. Sweden , App. No. 9248/81, Eur. Ct. H.R. 4
P.G. and J.H. v. United Kingdom, App. No. 44787/98, Judgment, 2001-IX Eur. Ct. H.R.
Copland v. United Kingdom
Special Tribunal for Lebanon, Case No. STL-11-01/T/TC 21 May 2015
The Oil Platforms (Iran v. US) case, ICJ Judgement
Kupreskic et al., AC, (IT-95-16-A), 23 October 2001
The Iranian Hostages Case (USA v. Iran) , ICJ Reports (1980)
Factory at Chorzów Judgment, Permanent Court of International Justice (1927)
Robert Litt, Gen. Counsel, Office of Dir. of Nat’l Intelligence, Remarks at American
University Washington College of Law Freedom of Information Day Celebration (Mar.
17, 2014)
David E. Sanger, In Spy Uproar, ‘Everyone Does It’ Just Won’t Do, N.Y. TIMES, Oct.
25, 2013, Available at : http://www.nytimes.com/2013/10/26/world/europe/in-spy-
uproar-everyone-does-it-just-wont- do.html?_r=0.
Ashley Deeks, An International Legal Framework for Surveillance. Virginia Journal of
Int. Law., Vol. 55:2
Der Spiegel, Espionage: The NSA’s Secret Spy Hub in Berlin, , Oct. 27, 2013
Jeffrey H. Smith, Symposium: State Intelligence Gathering and International Law:
Keynote Address, 28 MICH. J. INT’L L. 543, 544 (2007)
Quincy Wright, Espionage and the Doctrine of Non-Intervention in Internal Affairs, in
ESSAYS ON ESPIONAGE AND INTERNATIONAL LAW 3, 16–17 (Roland J. Stanger
ed., 1962)
W. Michael Reisman, Remarks, covert Action, 20 Yale J. INT’L. 419,421. N3 (1995)
Scott N. Carlson and Gregory Gisvold. Practical Guide to the International Covenant on
Civil and Political Rights. Transnational Publishers (2003).
Vladimir Kulomin v Hungary, Communication No 521/1992, UN Doc CCPR/C/50/D/
521/1992.
Malcolm Shaw. International Law. Sixth Edition. Cambridge University Press (2008)
V
Stephen Schulhofer, “Checks and Balances in Wartime: American, British and Israeli
Experiences,” Michigan Law Review (August 2004).
Stephanie Cooper Blum. Preventive Detention in the War on Terror: A Comparison of
How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects.
Homeland Security Affairs, Vol. IV, No. 3 (October 2008).
Claire Macken. Preventive detention and the right of personal liberty and security under
the International Covenant on Civil and Political Rights.
C. TAPPER (ed) Cross and Tapper on Evidence, 2007
K. BROUN (ed) McCormick on Evidence, II 2006
Kinsch, Patrick. On The Uncertainties Surrounding The Standard Of Proof In
Proceedings Before International Courts And Tribunals, INDIVIDUAL RIGHTS AND
INTERNATIONAL JUSTICE, Giuffrè Editore, Milan - 2009
Laura-Liisa Laving, The Reliability of Open Source Evidence In the International
Criminal Court
David Clarck and Susan Landau, “Untangling Attribution “ (2011) harvard National
Seurity
Ian Brownlie, International Law and the Use of Force by States (OUP 1963)
Ian Brownlie, Principles of International Law
Miscellaneous
VI
STATEMENT OF JURISDICTION
(“Amestonia/Applicant”) submit the present dispute concerning the Frost Files to the
pursuant to article 40(1) of the Statute of the Court. The parties have agreed to the contents of the
Special Agreement. The Federal Republic of Riesland accepts any Judgment of the Court as final
and binding, and shall execute it in its entirety and in good faith.
VII
QUESTIONS PRESENTED
A. Whether the illicitly obtained documents published on the website the Ames Post are
inadmissible before the Court, and if this Court find them to be admissible, whether there
B. Whether the arrest of Margaret Mayer and the other VoR employees, and the expropriation
of the VoR facility and its equipment, constituted a violation to the Broadcasting Treaty,
and whether Riesland is entitled to the immediate release of its nationals and a
C. Whether the detention of Joseph Kafker under the Terrorism Act was consistent with
international law, and whether the Court possess the authority to order its release or the
D. Whether the cyber attacks against the computer systems of The Ames Post and Chester &
VIII
STATEMENT OF FACTS
1. The Rieslandic Secret Surveillance Bureau (“the Bureau”) engages, inter alia, in covert
operations and collects intelligence outside of Riesland pursuant to the provisions of the
2. Section 21 of the SSBA, grants the Director of the Bureau (“the Director”) the power to
intelligence.” Section 32 of the SSBA, sets forth limitations on the Bureau’s surveillance
activity.
3. On 4 March 1992, Riesland and Amestonia signed the “Treaty on The Establishment of
4. On 2 October 2012, the Institute for Land and Sustainable Agriculture (“ILSA”)
published a report that found correlation – but not definitive evidence of causation –
between the gradual decrease in the honey bee population and the rise in the use of
5. On the night of 2 February 2014, seven Amestonian warehouses were simultaneously set
five people died from smoke inhalation, and many others were injured. Two of the dead
were Rieslandic nationals. Police found spray-painted images of a bee on the asphalt
outside the sites. Initial government reports estimated the damage from the attacks,
including long-term adverse health consequences for the local population, at €75 million.
IX
6. On 7 March 2014, 263 envelopes containing white powder were sent to Riesland and
Amestonia. The image of a bee was stamped on the back of all of the envelopes.
anonymous tweet posted that evening, which quickly went viral, read: “You’ve been
warned. The threat is real. It must be addressed. Next time you’ll taste your own poison.
#banneonics #savethebees.”
7. On 16 October 2014, the Bureau’s Director, met with the Amestonian Minister of
Internal Affairs. He informed the Minister that the Bureau had succeeded in identifying a
ring of Amestonian environmental activists who had been plotting to contaminate a large
8. On 21 October 2014, the police broke into a garage located in Amestonia’s capital and
apprehended three Amestonian college students. The students had in their possession
being part of a group of environmentalists, they called “The Hive.” The students refused
to provide the authorities with the names, locations, or future plans of other members of
the group.
9. On the morning of 16 December 2014, Frederico Frost, a national of Riesland and former
Bureau intelligence analyst drove from the Bureau’s facilities to Amestonia, where he
contacted Chester & Walsingham, a law firm that had previously represented defendants
X
lawyers from the firm a USB drive containing nearly 100,000 documents labeled top
10. On 18 December 2014, accompanied by his lawyers, Frost met with two reporters from
The Ames Post, and gave them a copy of the USB drive, requesting that the newspaper
11. In January and February 2015, thousands of documents marked “top secret” were
gradually published, unedited and unredacted, on the website of The Ames Post. One of
the documents, “The Verismo Program,” detailed a May 2013 operation in which a
waterproof recording pod was installed on the undersea fiber optic cable. The device was
placed on a section of the cable located in Riesland’s exclusive economic zone. The pod
copied all information that went through the cable and transferred it to the Bureau’s
servers. The document also noted that, following the white powder incident on 7 March,
Bureau employees had been instructed to use all of the Bureau’s resources “to track
“selectors.”
12. On 29 January 2015, The Ames Post published on its website a document on the
letterhead of the Office of the Attorney General of Riesland, which detailed regulations
issued by the Attorney General regarding the Bureau’s surveillance. The document
provided that all data collected by the Bureau through Verismo or related programs was
13. Another document leaked by Frost stated that since its inception in 1992, the premises of
the VoR station had been used by the Bureau to promote its surveillance activities on
XI
Amestonian soil. According to the document, Margaret Mayer, a television icon from
was part of an operation called “the Carmen Program,” intended to collect intelligence by
means of bugging the cell phones of high-ranking Amestonian public figures and private
sector leaders. That evening, citing as probable cause the Carmen Program documents
published by The Ames Post, the Amestonian obtained a warrant to seize all assets and
property of VoR. The following morning, Amestonia’s Border Patrol detained Margaret
Mayer and two other Rieslandic VoR employees while they were on a train crossing into
Riesland. The three were later arrested on suspicion of espionage and subsequently
14. Joseph Kafker is a 70-year-old retired Amestonian politician. On 7 March 2015, Kafker
was detained by the police, allegedly in accordance with the Terrorism Act. On 10 March
2015, Kafker’s case was brought before the National Security Tribunal. Following a
request from the Attorney General’s Office, the Tribunal ruled that all evidence
pertaining to Kafker’s activities and leading to his apprehension was “closed material,” as
the term is defined in the Terrorism Act. The Tribunal then granted the petition to extend
15. On 14 March 2015, President Hale instructed his Minister of Justice to refuse the
extradition request for Frederico Frost, citing the “political offense” exception in the
Extradition Treaty. He also ordered that Riesland’s request for the documents held by The
XII
16. On 17 March 2015, a leaked memorandum, sourced from Frost’s USB stick, revealed that
Kafker was considered a “high-level suspect with ties to The Hive, including the planned
2014.” Furhthermore, Riesland’s Attorney General stated that Riesland was in possession
of “closed materials” that “directly link Kafker to The Hive’s senior echelons.”
17. On 22 March 2015, the computer networks and communication switches at both The
Ames Post and Chester & Walsingham were hacked and disabled. Based on a report
XIII
SUMMARY OF PLEADINGS
A.
The illicitly-obtained documents published on the website of the Ames post are
inadmissible before the court, since the applicant has relied exclusively on press material to base
their claims against Riesland and press material is irrelevant when it comes to proving grave
claims against a state, moreover, in the case at hand the true source of the information is not
certain enough to sustain the applicant allegations since the information did not emanate directly
from Rieslandic authorities, but rather from an individual that claims to have taken the
documents from Riesland, then the documents may have been manipulated and tampered with
For these reasons, since there is no way of determining that the documents are authentic and
accurate, then they must not be admitted as evidence before the Court.
In the event that the Court does find them to be admissible, they do not evidence any
breach by Riesland of an international law as there is no rule that explicitly prohibits intelligence
collection, including mass surveillance, in fact there isn’t an obligation owed to Amestonia since
Riesland successfully fulfill its obligations under the Broadcasting Treaty subscribed among the
B.
International Law are going to be in place for the personnel and the facilities. It is important to
establish that VoR classifies as a special mission, even though neither Amestonia nor Riesland
are parties of the Convention on Special Missions, it has been determined through different
XIV
practices that it may reflect characterization of Customary International Law. Amestonia
violated the principle of pacta sunt servanda as they obviated the dispositions proposed on the
Also Amestonia violated the general obligation of a host State to protect the premises of a
mission of another State, which is a general accepted norm, and it is included in diverse
instruments of International Law. Last but not least, the actions commited by Amestonia
constituted an internationally wrongful act when they expropriated without justification the
facilities and the equipment of the facility of the VoR, and therefore, the Federal Republic of
Riesland is entitled to a compensation on the value of the properties expropriated and the
immediate release of Margaret Mayer and the other two VoR employees.
C.
Riesland’s detention of Joseph Kafker under the Terrorism Act is consistent with its
obligations under International law as Joseph Kafker represents a threat to Riesland’s public
safety and national security in the terms of the Terrorism Act. Moreover, the detention of Joseph
Kafker under the Terrorism Act is consistent with the procedural safeguards provided by the
ICCPR.
The Court has no authority to order either Kafker’s release or the disclosure of the
information relating to his apprehension. The extension of Kafker’s detention suggests that he
still remains a high level and therefore his release could endanger Riesland’s national security.
Furthermore, relevant State Practice is consistent with non-disclosure of the information that
XV
D.
In international law as in domestic law the initial evaluation of reliability involves the
sources of evidence, then the evaluation of credibility concerns the information provided by the
source and answers the question of whether the information should be believed or not. In this
order the Respondent affirms that cyber attacks against the computer systems of the Ames post
and Chester & Walsingham cannot be attributed to Riesland, since there is no fully conclusive
evidence to prove such claim, in fact the only evidence that has been provided by the Applicant
is a report made by the Amestonian Institute Of Technology, a source that can’t be trusted since
XVI
PLEADINGS
A. The documents published by the Ames Post are not admissible as evidence before
this Court
The applicant has relied exclusively on press material released by two national
newspapers on their respective websites to base their claims against Riesland1. Nevertheless, the
purpose and nature of these documents render them inadmissible before this Court in regards to
the present dispute, for two reasons: a) press material is irrelevant when it comes to proving
grave claims against a State; and b) the true source of the information is not certain enough.
1. Press material is irrelevant when it comes to proving grave claims against a State
Unlike in domestic law, the admissibility of evidence in international law is intrinsically
linked to its relevance rather than any procedural rules2. Therefore, it is important to determine
whether or not the press evidence presented by the applicant will be relevant, given the grave
While this Court has accepted that circumstantial evidence may be used under some
circumstances, it has clearly and constantly established that when a grave claim is brought upon
1
Compromis, Paragraph 24.
2
See Case Relating to the Territorial Jurisdiction of the International Commission of the River
Oder, Permanent Court of International Justice, September 10, 1929. The parties had argued that
the travaux préparatoires were sufficient evidence to the court, however the court ruled that the
preparatory work brought upon had little relevance, due to the lack of participation of one of the
parties, thus rendering the evidence inadmissible.
1
a State, the evidence has to be completely conclusive3. This Court has recognized that press
material is not conclusive evidence sufficient enough to prove facts4; they merely help in the
process of inferring them. For this reason, the documents published by the Ames Post should not
be accepted as evidence, since ultimately they will not be able to prove such grave claims as
presented as evidence is not certain, then such press information is inadmissible as evidence
before the court5. In the case at hand, since the information did not emanate directly from
Rieslandic authorities, but rather from an individual that claims to have taken the documents
from Riesland, then the documents may have been manipulated and tampered with. In this sense,
international tribunals have refused to admit evidence based on the fact that the evidence failed
to satisfy the two prima facie indicators of reliability for admission: authenticity and accuracy,
indicating that the evidence was not clearly “what it professe[d] to be in origin and authorship”6.
For these reasons, since there is no way of determining that the documents are authentic and
accurate, then they must not be admitted as evidence before the Court.
B. In any event, the documents stolen by Frederico Frost do not evidence any violation
of international law by Riesland.
3
Case concerning the Application of the Genocide Convention, pg. 90 paragraph 209 & Corfu
Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 17.
4
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, para. 57-74.
5
Case Concerning Armed Activities On The Territory Of The Congo
(Democratic Republic Of The Congo V. Uganda) Judgment Of 19 December 2005, Paragraph
68.
6
Special Tribunal for Lebanon, Case No. STL-11-01/T/TC 21 May 2015, Pg. 12Paragraphs 42-
43
2
Even in the hypothetical case in which this Court finds the press material to be admissible
as evidence, they would still not prove any violation of international law committed by Riesland,
as the purported actions are not prohibited by international law, and would not have violated
then “every state remains free to adopt the principle which it regards as best and most suitable” 7,
in other words, anything that is not forbidden is permitted. In this sense, under international law,
there is absolutely no rule that explicitly prohibits intelligence collection, including mass
surveillance; in fact, States have tried to limit the surveillance rather than forbidding it,
Indeed, every developed nation has at least some monitoring program 9, making mass
surveillance a generally accepted practice among nations, including the United States of America
through its National Security Agency, Australia through the Australian Signals Directorate, and
the United Kingdom through the Government Communications Headquarters10. This is due to
7
The Case of the S.S. Lotus, France v. Turkey, Judgment, 7 September 1927, Permanent Court
of International Justice (PCIJ), Paragraph 46.
8
See W. Michael Reisman, Remarks, covert Action, 20 Yale J. INT’L. 419,421. N3 (1995)
(describing the soviet Union agreements with its Eastern European Satellites.
9
Espionage: The NSA’s Secret Spy Hub in Berlin, DER SPIEGEL, Oct. 27, 2013
10
Quincy Wright, Espionage and the Doctrine of Non-Intervention in Internal Affairs, in
ESSAYS ON ESPIONAGE AND INTERNATIONAL LAW 3, 16–17 (Roland J. Stanger ed.,
1962) (noting that British jurist Lassa Oppenheim concluded that espionage is not politically or
legally wrong and that there is a general practice of espionage by all states); Jeffrey H. Smith,
Symposium: State Intelligence Gathering and International Law: Keynote Address, 28 MICH. J.
INT’L L. 543, 544 (2007) (“[…] Because espionage is such a fixture in international affairs, it is
fair to say that the practice of states recognizes espionage as a legitimate function of the state,
and therefore it is legal as a matter of customary international law.”); in “An International
Framework for Electronic Surveillance”, Op. Cit.
3
the fact that surveillance programs are the most adequate and effective method of conducting any
prevention of terrorism11.
other possible limitations to such mechanisms might be the rights to privacy and freedom of
expression. In this sense, it has been generally accepted that mass surveillance does not violate
these rights under the adequate circumstances, which consist in the surveillance program not
being abusive, unnecessary, or failing to accord with domestic law12. This includes following
minimization procedures in order to gather the information in the least invasive manner13.
has not yet agreed on whether or not this also encompasses electronic surveillance. In fact, States
like Germany have pointed out this situation14. For this reason, article 17 of the ICCPR should
not be directly applied to the present case. However, even if the Court does find this article to be
11
Klass and others v. Germany, Judgement of 6 September 1978, Eur. Ct. H.R., No.28 (law
authorizing secret services to carry out secret monitoring of communications)
12
See the Klass and Others judgment cited above, p. 21, § 42.
13
See David E. Sanger, In Spy Uproar, ‘Everyone Does It’ Just Won’t Do, N.Y. TIMES, Oct.
25, 2013, Available at: http://www.nytimes.com/2013/10/26/world/europe/in-spy-uproar-
everyone-does-it-just-wont- do.html?_r=0.
14
In 2013, Germany expressed interest in amending the ICCPR, so that it would be clear that it
extends to electronic privacy. Publicists interpret this as meaning that “the fact that Germany
thought that it was not obvious that the ICCPR regulates electronic surveillance suggests that
other States may not read article 17 that way either”. Deeks, Ashley. An International Legal
Framework for Surveillance. Virginia Journal of Int. Law., Vol. 55:2, pg. 302
4
applicable, it would only oblige States to guarantee this right in respect to individuals within its
Moreover, in the hypothetical scenario in which the obligations under the Covenant did
extend extraterritorially to foreign citizens, all the surveillance programs carried out by Riesland
did not constituted an arbitrary interference with the private life of Amestonian or Rieslandic
interference with their privacy; nevertheless, if it is necessary and in accordance with existing
16
laws, the exercise of this right can be limited . The ECtHR stated that secret surveillance is
institutions”17. Therefore, it can be concluded that this right is qualified, rather than absolute, and
regarding this matter, Riesland authorities adopted the necessary measures in the SSBA to
In this sense, the state restrictions regarding the right to privacy, in order to be non-
abusive and non-arbitrary, must “serve a legitimate purpose and meet the requirements of
suitability, necessity and proportionality which render {them} in a democratic society” 19. It has
also been stated that the test of necessity should be applied in order to determine if a surveillance
15
Article 2(1) of the ICCPR
16
Such limitation includes the protection of the rights and freedoms of others, the prevention of
disorder or crime and the interest of national security, public safety or economic well-being of
the country. ( See The ICCPR,ECHR, ACHR and the American Declaration )
17
Ratoru v. Romania , App. No. 283/95 ,Eur. Ct. H.R. 192, Para 47, & see footnote 13
18
See the Klass and Others judgment cited above, para.4 (1978). Under the EctHR’s
jurisprudence, these guarantees against abuse need to be codified in the same set of law as that
govern the surveillance program; see Compromis 3-5.
19
Donoso v. Panama, Judgment, inter-Am. Ct. H.R., No. 200, Jan 2009, paragrah 56.
5
measure is necessary to achieve the legitimate aim20. In this case, the surveillance programs
conducted by Riesland were strictly necessary in order to guarantee the protection and integrity
of Riesland and its government, and they served for cooperation with the Amestonian
government21. Furthermore, the restriction on the right to privacy carried out by these programs
were “statutory enacted” fulfilling the legality requirements22, and proving that all the
surveillance programs carried out by Riesland under de SSBA were made in compliance with
international law.
the right to privacy. This is also true for the right to freedom of expression. Everyone shall have
the right to freedom of expression including the right to impart ideas of all kinds23; however this
freedom comes with some duties and responsibilities therefore it should be subject of some
24
restrictions for the protection of the rights of others and the wellbeing of the country . Secret
surveillance does not constitute a violation to the right of freedom of expression itself as long as
20
Leander v. Sweden , App. No. 9248/81, Eur. Ct. H.R. 4, Para 59. (“ The Court recognizes that
the national authorities enjoy a margin of appreciation, the scope of which will depend not only
on the nature of the legitimate aim pursued but also on the particular nature of the interference
involved”)
21
Compromis, 31
22
Escher v. Colombia, Judgment, Inter- Am. Ct. H.R.,,Paragraph 118 No. 200, (the surveillance,
intervention, recording and dissemination of such communications is prohibited, except in the
cases established by law that are adapted to the objects and purposes of the American
Convention on Human Rights)
23
Art 19 ICCPR
24
Restrictions prescribed by law and necessary in the interest of national security, territorial
integrity or public safety, for the prevention of disorder or crime , for prevention the disclosure
of information received in confidence, See ART. 10 (2) OF THE ECHR
25
Case Application no. 54934/00 by Gabriele WEBER and Cesar Richard SARAVIA against
Germany
6
The ECtHR has clarified that a state’s interference with the right to respect for private life
and correspondence “will be considered ‘necessary in a democratic society’ for a legitimate aim
if it answers a pressing social need and, in particular, if it is proportionate to the legitimate aim
pursued and if the reasons adduced by the national authorities to justify it are relevant and
sufficient”26.
In this case, the pressing social need was the task of preventing terrorism. States have the
duty to prevent terrorism27. In fact, this duty includes monitoring the use of communication
technologies by terrorist groups28. It then becomes evident that the reasons that justified the
In respect to the need of proportionality, international courts have ruled that this principle
would be violated “only where no objectively defensible consideration can justify recourse to a
specific method intended to attain a given objective”29. As it has been previously stated, the
iv) The programs were in accordance with domestic law and followed minimization
procedures.
Rieslandic domestic law authorizes the employment of surveillance programs. In fact, the
Secret Surveillance Bureau Act (SSBA) grants the power to authorize electronic surveillance, in
The SSBA established that the foreign intelligence must be collected outside Rieslandic
territory30. In the case at hand, this was fulfilled by both purported surveillance programs, as the
information under the so-called Verismo program was collected from Riesland’s exclusive
economic zone, which is not part of Rieslandic territory31, and the information from the so-called
while collecting foreign intelligence33, safeguarding the rights of any individual that is subject to
the program.
3. The purported programs did not violate any obligation owed to Amestonia
The applicant has also implied that the implementation of the purported mass surveillance
those under the Broadcasting Treaty and more general ones regarding sovereignty and territorial
i) Broadcasting Treaty
Article 23(2) of the BT prohibits the station from being used for any other matter not established
in the treaty. In this order, the matters established by the Broadcasting Treaty include fortifying
30
Compromis, 3-5
31
In accordance with the UNCLOS article 55-56, Riesland only have a jurisdictional right over
the exclusive economic zone, whereas in the territorial water is in which is recognize a full
sovereignty over the waters. Also see Smith. R. Exclusive Economic Zone Claims: An Analysis
and Primary Documents, p.4.
32
While the premises of VoR were property of Riesland, they were located in Amestonian
territory.
33
Compromis, 5
8
the friendship between the two countries and strengthening understanding and cooperation
between the peoples of both countries34. Since the information collected from the surveillance
programs was a mechanism utilized for the purpose of strengthening the cooperation between the
parties, as expressed by Prime Minister Silk35, then article 23(2) was not breached by Riesland.
violate territorial integrity and sovereignty36. Nevertheless, these same sources establish that the
mere fact of acting extraterritorially does not, by itself, constitute a violation, but rather it lays
upon the acting state the burden to prove that the actions were consistent with these principles37.
In this sense, the ICJ has explained that a State violates another’s states territorial and political
integrity when it uses some form of coercion in order to intervene, either directly or indirectly in
a matter that another State has the right to determine for itself38. At no given moment did
Riesland or any of its authorities made an interference in Amestonian internal affairs or used
coercion against Amestonia, as Amestonia was never prevented from determining any internal
matter. For this reason, the programs cannot be said to be unlawful on this basis.
34
BT, Preamble (a)(b)
35
Compromis, 31
36
See Weber And Saravia v. Germany cited above, § 83
37
“ As regards allegations that a respondent State has violated international law by breaching
the territorial sovereignty of a foreign State, the Court requires proof in the form of concordant
inferences that the authorities of the respondent State have acted extraterritorially in a manner
that is inconsistent with the sovereignty of the foreign State and therefore contrary to
international law”. Ibid. § 87 & Öcalan v. Turkey, Application No. 46221/99, § 90.
38
Military and Paramilitary activities in and against Nicaragua (Nicaragua v. US), 1986 ICJ 160,
para. 205; see also Corfu Channel (U.K. v Alb.), 1949 ICJ 4, 35 (April 9).
9
II- THE ARREST OF MARGARET MAYER AND THE OTHER VOR EMPLOYEES, AND
THE EXPROPRIATION OF THE VOR FACILITY AND ITS EQUIPMENT, VIOLATED THE
BROADCASTING TREATY AND INTERNATIONAL LAW GENERALLY, AND RIESLAND IS
THEREFORE ENTITLED TO THE IMMEDIATE RELEASE OF ITS NATIONALS AND
COMPENSATION FOR THE VALUE OF THE CONFISCATED PROPERTY;
1. VoR’s premises, its equipment, and its personnel were protected by immunity
Articles 14 and 15 of the Broadcasting Treaty clearly establish, inter alia, that the
premises of VoR are inviolable, its equipment is immune from expropriation, and its employees
are immune from the criminal jurisdiction of Amestonia. Amestonia is obliged to respect this
immunity, in accordance with the pacta sunt servanda general principle of International Law39,
which states that every treaty in force is binding upon the parties.40
This obligation is reinforced by the fact that both Amestonia and Riesland are parties to
the Vienna Convention on the Law of Treaties, which contains this principle in article 26.41
Furthermore, publicists agree in that this is a crucial general principle of international law “since
the whole concept of binding international agreements can only rest upon the presupposition that
The applicant has attempted to establish that these immunities were lost, in accordance
with article 36 of the BT. Nevertheless, this claim is unfounded, as the Voice of Riesland (VoR)
never ceased its functions as established by the BT before Amestonia violated the premises, and
39
Malcolm N. Shaw “International Law (6th Edition)” p. 103
40
Article 26 of the Vienna Convention on the Law of Treaties (1969)
41
Paragraph 43 of the Compromis
42
Ian Brownlie, Principles of International Law, p. 591-592
10
the detainees could not be judged for purported acts allegedly committed while they were
i) The facilities did not cease functioning as envisaged by the BT until after Amestonia
breached the Treaty
Article 36 of the BT establishes that the immunities would only cease to have effect when
there is a cessation of the functions of the Station as envisaged by the Treaty.43 In this sense, the
functions of the station are described in article 2 of the BT, which states that “each station shall
produce and air programs and content including news stories, interviews, documentaries, and
movies produced either in or by the operating country, with local viewers and listeners in the
It is a non-contested fact that the facilities were broadcasting programs until the night of
16 February 2015, after the personnel of the facilities was practically forced to leave, having
officials44. For this reason, the dispositions of article 36 only came to force after that date.
Nonetheless, the employees were still protected by immunity even after this date, in
accordance with article 15 (1) (c), which basically states that they could not be persecuted for
acts committed while they were protected by immunity. This included not being subject to the
criminal jurisdiction of Amestonia.45 For these reasons, Amestonia breached its obligations due
43
Article 36 of the BT
44
Compromis, 27
45
Article 15-1B of the BT
11
2. In any event, the facilities and their personnel were protected by diplomatic
immunity, since they were a special diplomatic mission
A special mission is a temporary mission that represents the State in a specific task 46. In
this sense, there are two main requirements for a diplomatic mission to be considered a special
mission: the mission has to be temporary, and the mission has to represent its sending State in a
specific task. In regards to the first element, the BT established a term of 30 years for the
As for the second element, the preamble of the BT establishes that the purpose of the
treaty was fortifying the friendship between the two countries, strengthening understanding and
cooperation between their peoples, and offering their citizens radio and television channels that
will reflect the two nations’ dynamic political, cultural, and artistic activity48. In other words, the
preamble implies that the parties intended to establish a broadcasting station that represents each
sending State, in order to promote their respective culture within the other State, which is a
The purpose of the mission was to fortify the friendship of both nations49 and to
promote and strengthen the cooperation between their peoples.50 Amestonia approved the
46
Article 1 of the Convention on Special Missions
47
Article 40 of the BT
48
Preamble a), b) , & c) of the BT
49
Excerpts a) of the BT
50
Excerpts b) of the BT
12
appointment of each Rieslandic national working at VoR, and granted them documents detailing
station on its own soil, to be administered by Rieslandic operators. This served as the channel for
the consent.54 Last but not least, the designation of Margaret Mayer as head of VoR 55 achieved
the requirement concerning the composition of the special mission56, fulfilling every established
Constant State practice demonstrates that States tend to grant immunity to special
missions, regardless of whether or not they are parties to the Convention on Special Missions.
This posture was upheld by the Criminal Chamber of the German Federal Supreme Court, which
established in the Tabatabai Case that there is constant State practice and opinio juris concerning
There are very few instances in which States have taken a different stance, like the case
of the United States Federal District Court, which failed to recognize the customary element of
special missions58; nonetheless, the US executive branch had a different point of view regarding
the immunities, stating that foreign officials that are provisionally on US soil as a Special
51
Clarification 4
52
Article 8 of the Convention on Special Missions
53
Compromis, 7
54
Article 2 of the Convention on Special Missions
55
Compromis, 9
56
Article 9 paragraph 1 of the Convention on Special Missions
57
Decision 27 February 1984 Case No. 4 StR 396/83, 80 ILR (1989) 388 (Germany Federal
Supreme Court)
58
USA v. Sissoko, 121 ILR 599
13
Mission shall be entitled to the immunity from jurisdiction of US Courts.59 This last posture is
Moreover, this customary immunity is not limited to individuals who are Heads of State,
Heads of Government, or Foreign Ministers as in the case concerning the Chinese Minister of
Commerce and International Trade, in which the US government suggested to give immunity to
the minister.61 In the case concerning Djibouti vs. France, Djibouti relied on the Special Missions
Convention on its written submission, even though none of the parties were part of the
Convention62. The United Kingdom has recognized the customary character of the Convention
For these reasons, VoR and its employees were immune to Amestonian jurisdiction,
59
Li Weixum v. Bo Xilai, DCC Civ. 04-0649 (RJL).
60
See Yearbook of the International Law Commission, Volume II (1967), 358 (‘It is now
generally recognized that States are under an obligation to accord the facilities, privileges and
immunities in question to special missions and their members.’) AS CITED AT Akande, Dapo,
& Shah, Sangeeta. Immunities of State Officials, International Crimes, and Foreign Domestic
Courts. The European Journal of International Law Vol. 21 no. 4 © EJIL 2011; p. 822
61
IBID supra note 28
62
Djibouti v. France, memorial of the Republic of Djibouti, March 2007, par. 131-140
63
Proceedings in England regarding Israeli Minister Ehud Barak, supra note 16: Written
Ministerial Statement by Mr. Henry Bellingham, HC Deb. 13 December 2010, Volume 520,
72WS
14
Amestonia violated the principle of pacta sunt servanda when they entered the facilities
of VoR64, took all of its equipment65, and failed to prevent the entry of officials to the premises. 66
They also violated this principle when Amestonian officials detained Margaret Mayer and the
International law establishes the inviolability of missions68 and also specifies the
obligation of the receiving State to assure the protection of the mission from any intrusion or
damage.69 This statement was reaffirmed on the case concerning the Hostages in Tehran; when
individuals took over the US Embassy, this Court specified that Iran was placed under the most
categorical obligation as a receiving State to take the appropriate measures to ensure the
The ICJ went even further with the Congo v. Uganda case establishing that the
Convention71 not only prohibits any infringements of the inviolability of the mission by the
receiving State itself but also puts the receiving State under an obligation to prevent others, such
64
Compromis, 27. Violation of immunity granted by Article 14 a) of the BT
65
Compromis, 27. Violation of immunity granted by Article 14 b) of the BT
66
Compromis, 27. Violation of immunity granted by Article 14 c) of the BT
67
Compromis, 28. Violation of immunity granted by Article 15 a) of the BT
68
Article 22 paragraph 1 of the Vienna Convention on Diplomatic Relations (1961) / Article 25
paragraph 1 of the Convention of Special Missions (1969)
69
Article 22 paragraph 2 of the Vienna Convention on Diplomatic Relations (1961) / Article 25
paragraph 2 of the Convention of Special Missions (1969)
70
The Iranian Hostages Case, ICJ Reports, paragraph 40 (1980)
71
Article 22 paragraph 1 of the Vienna Convention on Diplomatic Relations (1961)
15
as armed militia groups, from doing so.72 Amestonia had the obligation to protect the premises of
International law grants a special protection to the missions, it specifies clearly that the
premises of a mission are inviolable and that agents on the receiving State are not to enter them
without the consent of a mission74. In the present case, the premises were accessed without
authorization of the Head of the Mission. The BT establishes that the premises of the Station, its
furnishings, and other property used in its operation shall be immune from expropriation.75
2. Internationally wrongful acts must result in compensation for the affected party and
Margaret Mayer, along with the other VoR personnel must be released by
Amestonia
States are under an obligation to make full reparation for the injury when they cause an
internationally wrongful act.76 This is catalogued as a principle of international law, and the
reparation itself is the indispensable complement of a failure to apply a convention; this does not
moral, that is caused by the internationally wrongful act of a State.78 The reparation itself must as
far as possible wipe out all the consequences of an illegal act and reestablish the situation which
72
Congo vs Uganda, ICJ Reports, paragraph 342 (2005)
73
Article 14 c) of the BT
74
Article 22 paragraph 1 of the Vienna Convention on Diplomatic Relations (1961)
75
Article 14 paragraph 3 of the BT
76
Article 31 paragraph 2 of the Draft articles on Responsibility of States for Internationally
Wrongful Acts (2001)
77
Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, paragraph
21 (1927)
78
Article 31 paragraph 2 of the Draft articles on Responsibility of States for Internationally
Wrongful Acts (2001)
16
would have existed if that act had not been committed.79 In such sense the Federal Republic of
Riesland is entitled to receive compensation from Amestonia in order to restablish the previous
situation, including the release of all its nationals and compensation for the value of the
confiscate material.
A. Riesland’s detention of Joseph Kafker under the Terrorism Act is consistent with its
obligations under International law
1. Joseph Kafker represents a threat to Riesland’s public safety and national security
in the terms of the Terrorism Act
The acts perpetrated by activists involving the planned contamination of a large shipment
of honey destined for consumption in Riesland constitutes a serious criminal offence condemned
by various international instruments that altogether make up a common model sought to tackle
the question of terrorism.80 Specifically, these actions are consistent with the definition of
Terrorist Act in the terms of the International Convention for the Suppression of the Financing of
Terrorism81 as referred in the Terrorism Act82. These actions are also consistent with those
79
Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, paragraph
47 (1927)
80
The UN has currently adopted thirteen international conventions concerning terrorism. Many
of these conventions operate on a common model, establishing the basis of quasi-universal
jurisdiction with an interlocking network of international obligations (Shaw, Pg.1160).
81
Art. 2.1(b)
82
Terrorism Act, Art.1
17
criminal offences condemned by the United Nations Declaration on Measures to Eliminate
International Terrorism83
This offence, considered together with two initial hostilities, namely the arson attack and
the following white powder incident, indicate that there is enough evidence that suggests that
these hostilities are all connected as they have been carried out by an organized group or groups
of environmental activists, whose common objective is to compel, by any means necessary, the
governments of Riesland and Amestonia, to ban the use of neonics in agriculture. The ring of
college students involved in this failed terrorist attempt identified themselves as being part of a
A memorandum exposed by the Ames Post later revealed that Joseph Kafker is
considered a high-level suspect with ties to a group of environmentalists known as “The Hive”,
2. The detention of Joseph Kafker is under the Terrorism Act is consistent with the
procedural safeguards provided by Article 9 of the ICCPR
Act84. By acknowledging that the detention was undertaken in accordance with the Terrorism
Act, it is evident that the nature of the alleged charges against Kafker is terrorism related and
therefore of great importance towards securing Riesland’s national security. In other words, it
has always been of Kafker’s knowledge that his arrest was based on his suspected links with
terrorist activities.
83
General Assembly Res. 49/60,Paragraph 3
84
Compromis, Par.32
18
International law requires that anyone who is arrested shall be informed of the reason for
his arrest sufficiently enough as to enable him to take immediate steps to secure his release if he
believes that the reasons given are invalid or unfounded.85 86 The information provided to Kafker
about his detention met this criteria, as he was able, parting from this knowledge, to select his
While the ICCPR requires that anyone who is arrested shall be informed, at the time of
arrest, of the reasons for his arrest and shall be promptly informed of any charges against him 89,
Kafker’s arrest was of a preventive nature, not an arrest based on charges, therefore, no charges
needed to be informed. Generally, the reason for the detention must enable the detainee to
discern the substance of the complaint against him.90 However, the accused need not be shown a
applies to those ‘arrested or detained on a criminal charge’. As it was previously stated, Kafker
was brought into custody as a preventive measure, not due to a criminal charge. Preventive
85
Macken. Pg.19
86
United Nations Body of Principles for the Protection of All Persons under Any Form of
Detention, Article 10
87
Compromis, Par.33
88
Clarification Num.6
89
ICCPR Art. 9(2)
90
Scott N Carlson and Gregory Gisvold, Practical Guide to the International Covenant on Civil
and Political Rights (2003), 84.
91
American Bar Association, Handbook of International Standards on Pretrial Detention
Procedures. Pg.7.
19
detention, by definition, is based on predictive criminal conduct and not on a specific criminal
In Kulomin v. Hungary, the Human Rights Committee confirmed that the first sentence
of Article 9(3) of the ICCPR is intended to ‘bring the detention of someone charged with a
criminal offence under judicial control’.93 General Comment 8 of the Human Rights Committee
also supports the criteria that the right to trial within reasonable time contained in Article 9(3)
only applies to detention in which a criminal charge is brought, necessarily precluding its
The aforementioned indicates that the ICCPR does not regulate the permissible length of
detention for a person in preventive detention. The right to be brought promptly before a judge
should be sought in the prohibition against arbitrary arrest and detention96. It is this prohibition
that protects a person in preventive detention from indefinite detention.97 In this sense, Kafker
was brought before a judge within three days of his detention98, in accordance with the Terrorism
If a person is arrested and detained without criminal charge, after a certain period of time
it appears beyond dispute that the detention will offend the prohibition on arbitrary arrest and
92
Macken. Pg.20
93
Vladimir Kulomin v Hungary, Communication No 521/1992, UN Doc CCPR/C/50/D/
521/1992.
94
Human Rights Committee, General Comment 8, Article 9 (Sixteenth Session, 1982),
UNDoc.HRI/GEN/1/Rev.1, 8 (1994).
95
Macken. Pg.16
96
ICCPR Article 9(1)
97
Macken. Pg.22
98
Compromis, Par. 32, 33
99
Terrorism Act, Subsection (b)
20
100
detention. In considering what amount of detention time is reasonable, the authority must
examine all the circumstances arguing for or against the existence of a genuine public interest
justifying, with due regard to the presumption of innocence, a departure from the rule of respect
for individual liberty.101 Simply put, the judicial officer must determine whether the justification
that serves as the basis for the detention can justify the time the detainee has spent in detention.
Nevertheless, the proportionality of the detention period to the penalty that may be imposed for
the offense is also a highly relevant factor when it comes to determining the length of preventive
detention.102
If there is a reason to believe that Kafker might be involved in terrorist activities against
Riesland, the maximum period of custody under the Terrorist Act will be justified as the
proceedings before a court, in order to challenge without delay the lawfulness of his detention.103
104
By “court” it should be understood the ICCPR is referring to a body with judicial character
that has the ability to order the detainee’s release.105 The Human Rights Committee has
100
Macken. Pg.22
101
American Bar Association, Handbook of International Standards on Pretrial Detention
Procedures. Pg.11
102
Council of Europe, Recommendation (2006)13 on the Use of Remand in Custody, the
Conditions in which it takes place and the Provision of Safeguards against Abuse, para. 22(2).
103
ICCPR Article 9(4)
104
United Nations Body of Principles for the Protection of All Persons under any Form of
Detention or Imprisonment, Principle 11
105
A. v. Australia, Communication No. 560/1993 ¶ 9.5.
21
interpreted that the right to review the lawfulness of detention contained in Article 9(4) of the
ICCPR applies to all persons deprived of their liberty, including those in preventive detention. 106
Since the right to trial within reasonable time only applies to detention in which a
criminal charge is brought, then the right to review the legality of detention by a court becomes
extremely important for those in preventive detention, especially when we consider that the right
under article 9(4) of the ICCPR is the only judicial remedy available to them.107
The ICCPR also requires that this judicial review of the lawfulness of the detention be
done “without delay”.108The Human Rights Committee argues that the question of whether a
decision was reached without delay must be assessed on a case by case basis and by no means
has this requirement suggested that there should be precise deadlines for the handing down of
judgments.109 Similarly, the European Convention on Human Rights demands that the decision
over the lawfulness of the detention be determined “speedily,” and the European Court of
Human Rights evaluates speediness depending on the nature and circumstances of the detention,
On 7 March 2015, Kafker was detained by the police111 and on 10 March 2015, Kafker’s
case was brought before the National Security Tribunal112, hence, judicial review was effective
after a three day delay. Although the Human Rights Committee has not clarified the meaning of
the phrase “without delay,” it has found delays of 5 weeks and of 3 months to be in violation of
106
Human Rights Committee, General Comment 8, Article 9 (Sixteenth Session, 1982),
UNDoc.HRI/GEN/1/Rev.1, 8 (1994).
107
Macken. Pg.25
108
ICCPR Article 9(4)
109
Mario Ines Torres v Finland, Communication No.291/1988: Finland 05/04/90, [7.2].
110
American Bar Association, Handbook of International Standards on Pretrial Detention
Procedures. Pg.14
111
Compromis, Par.32
112
Compromis, Par.33
22
the ICCPR Article 9(4).113 In Hammel v Madagascar, the three day delay, during which time it
was impossible for the author to gain access to a court to challenge his detention, was held to
breach Article 9(4).114 However, as we previously mentioned, the question of whether a decision
The particular circumstances and reasons of Kafker’s detentions are not the same or even
similar to those in Hammel v. Madagascar. In the latter case, Eric Hammel was kept in
incommunicado detention in a basement cell and subsequently deported. On the other hand,
Amestonia was immediately informed of Kafker’s detention when he was apprehended, and he
was afforded the right to communicate promptly with family members and given consular
assistance. 115
B. The Court has no authority to order either Kafker’s release or the disclosure of the
information relating to his apprehension.
the domestic affairs of another nation. 116 Accordingly, the UN Charter declares that the United
Nations cannot intervene in matters which are essentially within the domestic jurisdiction of any
state or shall require the members to submit such matters to settlement under the present
Charter.117 In consequence, the detention of Joseph Kafker falls into the domestic jurisdiction of
113
American Bar Association, Handbook of International Standards on Pretrial Detention
Procedures. Pg.14
114
Eric Hammel v Madagascar, Communication No. 155/1983 (2 April 1986), UN Doc.
CCPR/C/OP/2, 11 (1990) referred to in Macken Pg.26
115
United Nations Body of Principles for the Protection of All Persons under Any Form of
Detention, Article 16.
116
Shaw, Pg.647
117
UN Charter, Article 2(7)
23
Riesland as the detainee is suspected of committing offences against Riesland in accordance with
On another matter, the purpose of a periodic review of Kafker’s detention is for the
Tribunal to evaluate whether the conditions have changed in order to allow for the detainee’s
criminal prosecution or release.119 Accordingly, Kafker remains detained as his detention has
been extended by the Tribunal every 21 days120. In other words, the extension of Kafker’s
detention suggests that he still remains a high level suspect in accordance with the Terrorism Act
and therefore his release could endanger Riesland’s national security and public safety.
Furthermore, at the time of Kafker’s arrest a Terrorism Alert was in place. 121 A Terrorist
Alert is issued when there is a credible danger of an imminent terrorist act being committed in
(or against122) Riesland. Several Terrorist Alerts have been in force in a continuous manner
throughout all of the duration of Kafker’s detention. This situation clearly indicates that a state of
emergency is in place regarding the possibility of new terrorist activities being directed against
Riesland, thus making it all the more necessary to maintain under detention an individual who
2. The Court has no authority to order the disclosure of the information relating to
Kafker’s apprehension
118
Compromis, Par.32
119
Terrorist Act. Subsection (g)
120
Compromis, Par.33
121
A Terrorism Alert was declared on October 2014 (Compromis, Par.18), while Kafker was
detained on March 2015 (Compromis, Par.32).
122
The territoriality principle that serves as the primary ground for the exercise of criminal
jurisdiction in international law not only encompasses crimes committed wholly on the territory
of a state but also crimes in which only part of the offence has occurred in the state. Accordingly,
courts are likely to look at all the circumstances in order to determine in which jurisdiction the
substantial or more significant part of the offence in question was committed (Shaw, Pgs. 655-
656).
123
Compromis, Par.36
24
The applicant demands that Amestonia is entitled to the disclosure of all information
which formed the basis of Kafker’s apprehension. Nevertheless, as the Rieslandic Foreign
seriously endanger the integrity of particular intelligence sources and therefore the national
security of Riesland.
i) State Practice regarding non-disclosure of the information that serves as a basis for
preventive detention
In understanding the broader context of Riesland’s Terrorism Act, and analyzing whether
at other democracies that have dealt with asymmetric terrorist threats and observe how they have
handled material relating to the detention of terrorist suspects. Specifically, Britain and Israel
offer two of the few available sources of recent experience in attempting to reconcile the
demands of national survival and the rule of law in the context of a constant terrorist threat.124
a. Israel
In Israel, the Emergency Powers (Detentions) Law of 1979 (EPDL) provides that during
the detention proceedings, the judge sees all the evidence, even if it is classified, and the judge
decides what evidence may be disclosed to the detainee and his/her counsel, hence, some
detainees are held without knowledge of the specific allegations against them.125 One rationale
for Israel’s administrative detention policy under the EPDL is to protect the sources and methods
124
Stephen Schulhofer, “Checks and Balances in Wartime: American, British and Israeli
Experiences,” Michigan Law Review 102 (August 2004)
125
Cooper Blum. Preventive Detention in the War On Terror.Pg.6
126
Gross. Human Rights, Terrorism and the Problem of Administrative Detention in Israel.
Pg.762.
25
b. United States
Like Israel the United States attests that preventive detention is needed when evidence is
classified or when they do not want to compromise methods and sources.127 The United States
enemy combatant policy goes even further thus implementing an indefinite and largely
incommunicado detention128 that by definition implies, among other things, not allowing
c. United Kingdom
Advocates” who possess appropriate security clearance. These Special Advocates may not
disclose closed materials or discuss them with the detainee without the Tribunal’s
authorization129. Similarly, under the 2001 Anti-Terrorism, Crime, and Security Act
(ATCSA)130, classified information that served as the basis for a detainee’s apprehension, was
only made available to a security-cleared special advocate. This special advocate was precluded
from further communication with the detainee once he received the classified information. 131
127
Cooper Blum. Preventive Detention in the War On Terror.Pg.13
128
Cooper Blum. Preventive Detention in the War On Terror.Pg.13
129
Terrorism Act. Subsection (i)
130
In the aftermath of the September 11 attacks in New York and Washington D.C, Britain
adopted the 2001 Anti-Terrorism, Crime, and Security Act (ATCSA). Although the
aforementioned act provided the executive with stronger powers to investigate and prevent
terrorist activity, the ATCSA did provide some judicial relief. Source: Stephanie Cooper Blum.
Preventive Detention in the War On Terror. Pg.16
131
Donohue. Britain’s Counterterrorism Policy. Pg22. Cited at Stephanie Cooper Blum.
Preventive Detention in the War On Terror. Pg.16
26
IV- THE CYBER ATTACKS AGAINST THE COMPUTER SYSTEMS OF THE AMES POST
AND CHESTER & WALSINGHAM CANNOT BE ATTRIBUTED TO RIESLAND, AND IN ANY
EVENT DID NOT CONSTITUTE AN INTERNATIONALLY WRONGFUL ACT.
committed by Riesland, it bears the burden of proof to support its claims, in light of the principle
of actori incumbit probatio, which has been constantly upheld by this Court132. Indeed,
international justice relies on truth and right, therefore any statement that is not agreed upon by
the parties needs to be proven with sufficient evidence before the court, in order to support such
claim.
In that sense, as it has been pointed out before in the present submission by the
Respondent133, international jurisprudence has been clear in establishing that when a claim of
grave nature is brought upon a state, the evidence must be fully conclusive134. For this reason, it
becomes clear that, at least in cases of grave claims, like the case at hand, the standard of proof
to be followed is the standard of evidence beyond a reasonable doubt 135, resembling what would
132
Nicaragua
133
See pleading 1A of the respondent.
134
Supra, note 000000
135
ICJ, 9.4.1949, United Kingdom v Albania, ICJ Rep 1949, 4, 17-18
136
C. TAPPER (ed) Cross and Tapper on Evidence, 2007, 169 et seq; K. BROUN (ed)
McCormick on Evidence, II 2006, § 341, 490 et seq CITED ON Kinsch, Patrick. On The
Uncertainties Surrounding The Standard Of Proof In Proceedings Before International Courts
And Tribunals, INDIVIDUAL RIGHTS AND INTERNATIONAL JUSTICE, Giuffrè Editore,
Milan - 2009
27
2. Amestonia failed to provide sufficient conclusive and evidence linking the alleged
cyber-attacks to Riesland
The admissibility of any evidence in international jurisdictions will generally depend on
its probative value137. As part of the process of assessing this probative value, the court must take
into account the source from which the parties obtain the information from, which is essential to
evaluate the independence and impartiality of the source138. However , while the initial
evaluation of reliability involves the sources of evidence, then the evaluation of credibility
concerns the information provided by the source and answers the question of whether the
In light of this norm, the Court must assess the probative value of the evidence presented
by Amestonia, which, for this particular claim, seem to consist in a report made by the
Amestonian Institute of Technology. While this institution has been referred to as “a well
renowned research intensive academic institution”, the fact that the institution is of Amestonian
origin, as well as the non-participation of the respondent in the examinations, might compromise
the impartiality of the evidence, which is required for it to have any probative value.
Nonetheless, even if the Court were to trust this source, the fact that source of the evidence can
be considered reliable does not necessarily mean that the information delivered by the source is
also credible.140 Indeed, known and trusted sources might make mistakes; for example, “an NGO
which has provided trustworthy information in numerous previous reports could still make
137
Rome statute, art. 69 (4)
138
The Reliability of Open Source Evidence In the International Criminal Court page 29
139
Ibd. 48
140
Kupreskic et al., AC, (IT-95-16-A), 23 October 2001 para 138
141
The Reliability of Open Source Evidence In the International Criminal Court page 39
28
This is especially important when it comes to evaluating this particular alleged action, as
the perpetrators of cyber attacks are usually very careful to cover their tracks in order to frame an
even the most professional institutions. This action is popularly known as “spoofing”, and it
entails the actions of commandeering one computer with code that covers that computer into a
platform for attacking a second computer, in order to “spoof” other IP addresses so that the
In this same line, Rule 7 of the Tallinn Manual established that “the mere fact that a cyber
operation has been launched or otherwise originates from governmental cyber infrastructure is
For these reasons, the report from AIT cannot be considered as evidence that is
conclusive enough to meet the criteria required by the standard of proof that necessarily has to be
adopted, as has been previously explained, in accordance with the previous decisions of this
Court.
B. In any event, the purported actions did not constitute an internationally wrongful
act
1. The cyberattacks against the computer systems at the Ames Post and Chester and
Walsingham do not amount to a use of force
The threat or use of force is one of the principles in International Law that has been
142
See David Clarck and Susan Landau, “Untangling Attribution “ (2011) 2 harvard National
Seurity Journaul 533
143
Tallinn Manual rule 7
144
Nicaragua paragraph 100
29
demands of the respective government.145 It is important to clarify that the threat would depend
upon whether the particular use of force would be directed against the territorial integrity of a
State.146
According to the Nuclear Weapons Advisory Opinion the Court stated that the
possessions of nuclear weapons did not itself constitute a threat, but instead that the State who’s
alleging such threat must demonstrate that they indeed perceived such coercion, and by such
could not act normally within their borders.147 Amestonia never demonstrated that they perceived
The main requirement for an action to be considered a cyber-attack is that said action
alters, disrupts, deceives, degrades or destroys adversary computer systems or networks or the
information resident in or transiting these systems or networks148. Under this new paradigm, a
cyberattack amounts to an armed attack within the scope of Article 51 if its consequences are
comparable to those caused by a conventional attack employing kinetic force. 149 For instance,
absent kinetic force, a State’s use of biological or chemical weapons triggered by means of a
cyberattack would definitely fall into the scope of an armed attack 150. Accordingly, it would be
far-fetched to say that the damage caused by the cyberattacks on Amestonia constitutes an armed
attack. In the case of the cyberattacks against Chester and Walsingham and the Ames Post, it
145
Ian Brownlie, International Law and the Use of Force by States (OUP 1963) p. 364
146
Malcolm Shaw, International Law 6th edition p. 1125
147
Nuclear Weapons Advisory Opinion paragraphs 37-50 (1996)
148
National Research Council of the National Academies (2009) Technology, Policy, Law and
Ethics Regarding U.S. Acquisition and Use of Cyberattack Capabilities. p. 19
149
Ziolkowski. Pg.622
150
Ziolkowski. Pg.622
30
hasn’t been demonstrated that these attacks constitute international wrongful acts in the form of
armed attacks.
i) The Ames Post and Chester and Walsingham were posing a imminent threat to
Rieslandic national security
There has been extensive controversy as to the precise extent of the right of self-
defense.151 The ICJ has established that there is a natural or inherent right to self-defense and it is
hard to see how this can be other than a customary nature152, in other words it recognized the
demonstrate that it has been victim of an attack and it bears the burden of proof.153 Riesland has
demonstrated the violations from part of Amestonia regarding the use and the release of the
Article 51 of the UN Charter proportionate the mechanism for States under what
circumstances may they act in self-defense, which is with an authorization of the Security
Council.155 However there has been a new mechanism to act in self-defense which is in the
scenarios of imminent threat.156 In any event, if the actions of Riesland were to be considered a
151
Article 21 of the International Law Commission’s Articles on State Responsibility (2001)
152
Nicaragua paragraphs 14,94
153
The Oil Platforms (Iran v. US) case, ICJ Judgement, paragraph 161, 189 and 190 (2003)
154
Paragraph 22 of the Compromis
155
Article 51 of the UN Charter
156
Contemporary Practice of the US, 93 AJIL, p.161 (1999)
31
use of force, they had the cause to act in self-defense, because their purpose was to protect its
157
Paragraph 35 of the compromis
32
PRAYER FOR RELIEF
In light of the foregoing reasons, the Federal Republic of Riesland respectfully requests
A. The illicitly-obtained documents were inadmissible before this Court, and in the case this
Court does find them admissible, they did not evidence any breach by Riesland of an
B. The arrest of Margaret Mayer jointly with the other VoR employees and the
expropriation of the VoR facility and its equipment, did constitute a violation to the
C. The detention of Joseph Kafker under the Terrorism Act was consistent under
international law, and the Court does not possess the authority to order its release or the
D. The cyber attacks against the computer systems of The Ames Post and Chester &
wrongful act.
33