1505 - Applicant

TEAM CODE –1505
7TH PROFESSOR V.S. MANI NATIONAL MEMORIAL INTERNATIONAL LAW

MOOT COURT COMPETITION, 2018
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE
THE HAGUE, THE NETHERLANDS
I.C.J. REPORT NO. /___
CASE CONCERNING THE BORDER SKIRMISH BETWEEN MARSHAL AND

ARYAN
MARSHAL (APPLICANT) / ARYAN (RESPONDENT)
SPRING TERM 2018
MEMORANDUM ON THE BEHALF OF THE APPLICANT
COUNSEL ON THE BEHALF OF APPLICANT

~7TH PROFESSOR V.S. MANI MEMORIAL INTERNATIONAL LAW
MOOT COURT COMPETITION, 2018~
TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................... 2
INDEX OF AUTHORITIES...................................................................................................... 3
ICJ AND PCIJ JUDGEMENTS ............................................................................................. 3
OTHER INTERNATIONAL CASES .................................................................................... 4
INTERNATIONAL CONVENTIONS AND TREATIES .................................................... 4
UN AND OTHER INTERNATIONAL DOCUMENTS ....................................................... 5
BOOKS, ARTICLES & JOURNALS .................................................................................... 6
NATIONAL CASES .............................................................................................................. 6
STATEMENT OF JURISDICTION.......................................................................................... 7
STATEMENT OF FACTS ........................................................................................................ 8
STATEMENT OF ISSUES ..................................................................................................... 10
SUMMARY OF ARGUMENTS ............................................................................................. 11
1. WHETHER THE BORTEX AGREEMENT FORMING THE CONSENT FOR
JURISDICTION TO ICJ IS ENFORCEABLE .................................................................... 11
2. WHETHER THE TREATMENT METED OUT WITH MAJOR DMITRI GODMAN
IS CONTRARY TO THE PRINCIPLES OF INTERNATIONAL LAW ........................... 11
3. WHETHER MARSHAL IS BOUND TO RETURN THE PRISONERS OF WAR
CURRENTLY ...................................................................................................................... 11
4. WHETHER MARSHAL IS ENTITLED TO SEEK APPROPRIATE DAMAGES
UNDER INTERNATIONAL LAW..................................................................................... 11
5. WHETHER MARSHAL WAS JUSTIFIED IN DENYING CONSULAR ACCESS
TO MR. ALEX ..................................................................................................................... 12
ARGUMENTS ADVANCED ................................................................................................. 13
JURISDICTION TO ICJ IS ENFORCEABLE .................................................................... 13
2. WHETHER THE TREATMENT METED OUT WITH MAJOR DMITRI GODMAN
IS CONTRARY TO THE PRINCIPLES OF INTERNATIONAL LAW ........................... 18
CURRENTLY ...................................................................................................................... 23
UNDER INTERNATIONAL LAW..................................................................................... 27
TO MR. ALEX ..................................................................................................................... 30
PRAYER .................................................................................................................................. 34
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WRITTEN SUBMISSION ON THE BEHALF OF THE APPLICANT
LIST OF ABBREVIATIONS
art. ARTICLE
Comm’n COMMISSION
Ct. COURT
Doc. DOCUMENT
ed. EDITION
Eur. EUROPEAN
H.R. HUMAN RIGHTS
I.L.C. INTERNATIONAL LAW COMMISSION
ICC INTERNATIONAL CRIMINAL COURT
ICCPR INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS
ICESCR INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTRAL RIGHTS
ICJ INTERNATIONAL COURT OF JUSTICE
IHL INTERNATIONAL HUMANITARIAN LAW
Int’l. INTERNATIONAL
Inter-Am. INTER-AMERICAN
LOC LINE OF CONTROL
MICH MICHIGAN
P.C.A. PERMANENT COURT OF ARBITRATION
PCIJ PERMANENT COURT OF INTERNATIONAL JUSTICE
POW PRISONER OF WAR
U.N. UNITED NATION
U.N.G.A. UNITED NATIONS GENERAL ASSEMBLY
U.N.T.S. UNITED NATION TREATY SERIES
UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS
v. VERSUS
VCCR VIENNA ON CONSULAR RELATIONS
VCLT VIENNA CONVENTION ON LAW OF TREATIES
Y.B. YEARBOOK
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INDEX OF AUTHORITIES
ICJ AND PCIJ JUDGEMENTS
1. Admissibility, Judgement, 1974 I.C.J. 457 (December 20) ......................................... 12
2. Aegean Sea Continental Shell (Greece v. Turkey) Jurisdiction, Judgment, 1978 I. C. J.
12 (December 19). ....................................................................................................... 13
3. Ambatielos case (Greece v. United Kingdom) PreliminaryObjection, 1952 I.C.J. 28
(July 01) ....................................................................................................................... 13
4. Anglo-Iranian Oil Co. (United Kingdom v. Iran) Judgement, Jurisdiction, 1952 I.C.J.
102 (July 22); ............................................................................................................... 14
5. Application for Revision and Interpretation of the Judgment of 24 February 1982 in
the Case concerning the Continental Shelf, Judgement, 1985 I.C.J. 192 (December 10)
...................................................................................................................................... 12
6. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, (Bosnia and Herzegovina v. Yugoslavia), Judgment, Preliminary
Objections, 2006 I.C.J. 595 (July 11). ......................................................................... 15
7. Armed Activities on the Territory of the Congo, (the Democratic Republic of the
Congo v. Rwanda), Judgment, Jurisdiction and Admissibility, 2006 I.C.J..6 (February
03) ................................................................................................................................ 12
8. Avena and Other Mexican Nationals, Judgment on Jurisdiction, Admissibility and
Merits, (Mexico v United States) 2004 I.C.J. 12 (March 31). ..................................... 26
9. Border and Transborder Armed Actions, Judgment, Jurisdiction and Admissibility,
(Nicaragua v. Honduras) 1988 I.C.J. 69 (December 20) ............................................. 12
10. Certain Phosphate Lands in Nauru, (Nauru v Australia), Preliminary Objections,
Judgment, 1992 I.C.J. 240 (June 26) ........................................................................... 14
11. Certain Questions of Mutual Assistance in Criminal Matters, (Djibouti v France),
Judgment, 2008 I.C.J. 177 (June 04) ........................................................................... 12
12. Continental Shelf, (Tunisia v Libyan Arab Jamahiriya), Merits, Judgment, 1982 I.C.J.
18 (February 24). ......................................................................................................... 14
13. Corfu Channel case (United Kingdom v. Albania), Preliminary Objection, 1948 I.C.J.
15 (March 25) .............................................................................................................. 13
14. East Timor, (Portugal v Australia), Jurisdiction, Judgment, 1995 I.C.J. 90 (June 30).
...................................................................................................................................... 14
15. Factory at Chorzów, (Germany v. Poland), 1928 P.C.I.J. (Series A) no. 9, at
21(September 13). .................................................................................................. 12, 26
16. Fisheries Jurisdiction, (Germany v Iceland), Jurisdiction, Judgment, 1973 I.C.J. 146, ¶
28 (February 02) .......................................................................................................... 13
17. Fisheries Jurisdiction, (Spain v Canada), Judgment, Jurisdiction, 1998 I.C.J. 432 ¶ 37-
38 (December 04); Nuclear Tests (New Zealand. v. France) ...................................... 12
18. Interpretation of Peace of Treaties case with Bulgaria, Hungary and Romania,
(Bulgaria, Hungary & Romania v. Allied states) Judgement, 1950 I.C.J. 71 (July 18)
...................................................................................................................................... 12
19. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)
Judgement, 2012 I.C.J. 81 ............................................................................................ 28
20. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgement, 2002 I.C.J. 303 (October 10) ................ 12
21. Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 2004 I.C.J. 136 (July 09) .............................................. 28
22. Legality of Use of Force, (Serbia and Montenegro v. Belgium), Judgment,
Preliminary Objections, 2004 I.C.J. 279 (December 15) ............................................. 13
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23. Legality of Use of Force, (Serbia and Montenegro v. United Kingdom), Preliminary
Objections, 2004 I.C.J. 1307 (December 15)............................................................... 13
24. Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v.
Bahrain) Jurisdiction And Admissibility, 1994 I.C.J. 112 (July 01) ........................... 15
25. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Judgments, Advisory Opinions and Orders, 1995 I.C.J. 6 (February 15). .. 15
26. Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v. United
States) Merits, Judgment, 1986 I.C.J. 14 (June 27) ..................................................... 12
27. Minquiers and Ecrehos case, (France v. United Kingdom), Judgment, Merits, 1953
I.C.J. 47 (November 17). ............................................................................................. 14
28. Monetary Gold Removed from Rome in 1943, (Italy v. France & ors.) 1954 I.C.J. 32
(June 15); ..................................................................................................................... 14
29. Nottebohm (Liechtenstein v. Guantanamo), Preliminary Objection (Second phase),
1955 I.C.J. 4 (April 06) ................................................................................................ 13
30. Questions of Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie, (Libya v. United States), Judgment,
Preliminary Objections, 1998 I.C.J. 115 (July 09) ...................................................... 13
31. Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, 1951 I.C.J. 15 (May 28). .............................................. 16
32. Rights of Minorities in Upper Silesia (Minority Schools), 1928 P.C.I.J. (Series A) no.
15(April 26) ................................................................................................................. 14
33. Sovereignty over Certain Frontier Land, (Belgium v. Netherlands), Merits, Judgment,
1959 I.C.J. 209 (June 20). ............................................................................................ 14
34. Territorial Dispute, (Libya v Chad), Judgment, merits, 1994 I.C.J. 6 (February 03). . 14
35. The Gabčikovo- Nagymaros Project case, (Hungary v. Slovakia), Reports of
Judgments, Advisory Opinions and Orders, 1997 I.C.J. 7 (September 25) ................. 26
OTHER INTERNATIONAL CASES

1. Eureko B.V. v. Slovak Republic case, PCA Case Repository 2008-13, Award On
Jurisdiction, Arbitrability and Suspension, (October 26, 2010) 72, 73, § § 235-8. ..... 17
2. Herczegfalvy v. Austria, Judgment, Merits and Just Satisfaction, 1992 ECHR 83
(Sept. 24). ..................................................................................................................... 21
3. Prosecutor v. Tadic, Case No. IT-94-1-A, Interlocutory Appeal, Second Amended
Indictment and Judgment, International Criminal Tribunal for Yugoslavia ................ 21
4. Treholt v. Norway, Admissibility decision, European Commission of Human Rights,
192, 194 (Jul. 09, 1991). .............................................................................................. 32
INTERNATIONAL CONVENTIONS AND TREATIES

1. Geneva Convention For The Amelioration Of The Condition Of The Wounded And
Sick In Armed Forces In The Field, Aug. 12, 1949, 75 UNTS 31 .............................. 19
2. Geneva Convention for the Amelioration of the Condition of Wounded, Sick And
Shipwrecked Members Of Armed Forces At Sea, Aug. 12, 1949, 75 UNTS 85 ........ 19
3. Geneva Convention Relative to The Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 75 UNTS 287 ...................................................................................... 19
4. Geneva Convention Relative to the Treatment of Prisoners Of War, Aug. 12, 1949, 75
UNTS 135 .................................................................................................................... 19
5. International Court of Justice Rules of Court, INTERNATIONAL COURT OF JUSTICE
(Sept. 9, 2018, 10:34 P.M.) https://www.icj-cij.org/en/rules ......................................... 7
6. International Court of Justice Statute, Jun. 26, 1945, 59 Stat. 1055, 33 UNTS 993
.................................................................................................................................. 6, 13
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7. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171
................................................................................................................................ 18, 25
8. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts, Jun. 08, 1977, 1125 UNTS 3
...................................................................................................................................... 19
9. U.N. Charter art. 33...................................................................................................... 18
10. Universal Declaration of Human Rights, (Dec. 10, 1948), 217 A (III) ....................... 19
11. Vienna Convention on Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331 ............... 17
12. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T.77 .................... 31
UN AND OTHER INTERNATIONAL DOCUMENTS

1 Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, General Assembly resolution 43/173, (Dec. 9, 1988), Principle 22 .... 20
2 Comprehensive political settlement of the crisis in Burundi, UN Security Council,
(Aug. 30, 1996) UN Doc. S/RES/1072; Res. 50/193................................................... 20
3 Draft Code of crimes against the peace and security of mankind, adopted by the
International Law Commission, Reprinted in the report of the international law
commission on the work of its 43th session, (Apr. 29- Jun. 19, 1996), UNDoc.
A/46/10,1991, Articles 22(2)(a). .................................................................................. 20
4 Draft Code of crimes against the peace and security of mankind, adopted by the
International Law Commission, Reprinted in the report of the international law
commission on the work of its 48th session, (May 26- Jul. 26, 1996), UN Doc.
A/51/10,1996. .............................................................................................................. 20
5 General Comment No. 29, “Derogation during a state of emergency”, in
“International human rights instruments: Compilation of general comments and
general recommendations adopted by human rights treaty bodies”, UN Doc.
HRI/GEN/1/Rev.7 (2004). ........................................................................................... 24
6 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its
Annex: Regulations Concerning the Laws and Customs of War on Land (Oct. 18,
1907). ........................................................................................................................... 21
7 International Court Of Justice Statute, Jun. 26, 1945, 59 Stat. 1055, 33 UNTS 993... 12
8 International Military Tribunal Charter Annex to the Agreement for the prosecution
and punishment of the major war criminals of the European Axis(Nuremberg), ........ 21
9 Observance by UN Forces of International Humanitarian Law, Secretary- General’s
Bulletin, UN Secretariat, (Aug. 06, 1999), UN Doc. ST/SGB/1999/13, section 7(2).
...................................................................................................................................... 20
10 Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious
Criminal Offences, (Jun. 06, 2000), UN Doc. UNTAET/REG/2000/15, section
6(1)(b)(x) and (e)(xi).................................................................................................... 20
11 Resolution 1019, Violation of International Humanitarian Law in former Yugoslavia,
UN Security Council, (Sept. 11, 1995) UN Doc. S/RES/1019; Resolution 1072, ...... 20
12 Resolution 2003/15, Commission on Human Rights Resolution 2003/15: Situation of
Human Rights in the Democratic Republic of the Congo, UN Commission on Human
Rights (Apr. 17, 2003), Human Rights Doc. E/CN.4/RES/2003/15, Preamble and
Section 2....................................................................................................................... 20
13 Resolution 827, Establishment of the International Tribunal for Prosecution of
Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia since 1991, UN Security
Council, (May 23, 1993) UN Doc. S/RES/827 ............................................................ 20
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14 Situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of
Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), UN
General Assembly, (Dec. 22, 1995) UN Doc. A/50/635/Add.3 .................................. 20
15 UN Declaration on the Protection of All Persons from Enforced Disappearances of the
1992art. 19, UN Doc. A/47/49, 18 December 1992. ................................................... 26
BOOKS, ARTICLES & JOURNALS

1. ANDREAS ZIMMERMANN, ET AL., STATUTE OF THE INTERNATIONAL COURT OF JUSTICE:
A COMMENTARY (2012) ............................................................................................... 12
2. DR. J. H. W. VERZIJI, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE: THE LAW OF
WAR, 23, vol IX-A, (Sijthof & Noordhoof Publishers, 1978)………………………..30
3. SK KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS, (18th ed., Central Law Agency)
...................................................................................................................................... 30
4. Glenn Sulmasy & John Yoo, Counterintuitive: Intelligence Operations and
International Law, 28 MICH. J. INT'L L. 625 (2007)………………………………….31
5. Simon Chesterman, Shared Secrets: Intelligence and Collective Security 1-10 (2006).
...................................................................................................................................... 31
6. JEAN S. PICTET, COMMENTARY TO GENEVA CONVENTION RELATIVE TO THE
PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR (FOURTH GENEVA CONVENTION),
(International Committee of Red Cross, Geneva, 1958).............................................. 23
7. JERRE MANGIONE, CONCENTRATION CAMPS–AMERICAN STYLE, in UN A STORIA
SEGRETA: THE SECRET HISTORY OF ITALIAN AMERICAN EVACUATION AND
INTERNMENT DURING WORLD WAR II 117, 118–19 (Lawrence DiStasi ed., 2001) ..... 25
8. Paula Branca-Santos, Injustice Ignored: The Internment of Italian-Americans During
World War II, 13 PACE INT’L L. REV. 151, 164-65 (2001). .................................... 25
9. ROBERT KOLB, THE LAW OF TREATIES; AN INTRODUCTION, 222 (Edward Elgar
Publishing, 2016). ........................................................................................................ 17
10. SHABTAI ROSENNE, JURISDICTION: THE LAW AND PRACTICE OF INTERNATIONAL
COURT, 2, 641 (3rd ed. 1996); Nuclear Tests .............................................................. 13
11. UK Ministry of Defence, The Joint Service Manual of the Law Of Armed Conflict,
JSP 383, ¶. 8.169, at 205 (2004)................................................................................... 23
12. War in Italy Ends, N.Y. TIMES, (May 3, 1945) http://www.nytimes.com/learning/
general/onthisday/big/0502.html#article ..................................................................... 24
NATIONAL LEGISLATIONS
1 Israel, Laws of war in the battlefield, Manual, Military Advocate General
Headquarters, Military School, 1998, .......................................................................... 22
2 Mexico, cartilla De Dereco International Humanitario, Ministry of National Defence,
2009.............................................................................................................................. 22
3 South Africa, Revised Civic Education Manual, South African National Defence
Force, 2004, chapter 4, $ 57. ........................................................................................ 22
4 United Kingdom, The Manual of the Law of the Armed Conflict, Ministry of
Defence, 1 July 2004, $ 9-4.; United States, Military Commissions Act, 2004 .......... 22
NATIONAL CASES
1. Al-Bihani v. Obama, 590 F.3d 866, 869 (D.C. Cir. 2010). ......................................... 25
2. Humdi v. Rumsfeld, 542 U.S. 507 (2004). .................................................................. 24
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STATEMENT OF JURISDICTION
The applicant has invoked the jurisdiction of the Hon’ble court under Article 36(1) of the ICJ
statute1 based on Article 4 of the Bortex Agreement which was submitted in the form of
special agreement under Article 40 (1) of the ICJ Statute2as per Rule 38(5)3 of the Rules of
the Court.
Article 36(1) of the ICJ statute - The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the Charter of the United Nations
or in treaties and conventions in force.
Article 40 (1) of the ICJ Statute - Cases are brought before the Court, as the case may be,
either by the notification of the special agreement or by a written application addressed to
the Registrar. In either case, the subject of the dispute and the parties shall be indicated.
Rule 38(5) of the Rules of the Court - When the applicant State proposes to found the
jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State
against which such application is made, the application shall be transmitted to that State. It
shall not, however, be entered in General List, nor any action is taken in the proceedings,
unless and until the State against which such application is made consents to the Court’s
jurisdiction for the purposes of the case.
1
International Court of Justice Statute art. 36(1), Jun. 26, 1945, 59 Stat. 1055, 33 UNTS 993 [hereinafter ICJ
statute].
2
Id. art. 40
3
International Court of Justice Rules of Court art. 38(5), INTERNATIONAL COURT OF JUSTICE (Sept. 9, 2018,
10:34 P.M.) https://www.icj-cij.org/en/rules.
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STATEMENT OF FACTS
1. Marshal is a landlocked country located in the African continent ruled by a dictator,

General Vadim. Marshal is considered as a despotic state by its neighbouring state.
2. General Vadim assumed power in 1975 after Marshal became independent from
British rule in 1972. He formed a part of the British army had succeeded to become
the dictator of Marshal after suspending the newly formulated constitution of
independent Marshal.
3. Marshal is bordered by Aryan, Castle and Lager, and all of them have democratically
elected governments and have never seen or witnessed a military coup.
4. Since independence, Marshal has fought four wars with its neighbouring countries,
primarily on the basis of religion as Marshal is a Christian dominated country whereas
its three neighbours are all Islamic countries. Despite the efforts of its neighbours to
establish supremacy over Marshal. Marshal has always prevented the attacks on its
territory by military tactics and expertise and with support from the Republic of
Dominia, which happens to be another Christian majority superpower located in the
African continent.
5. Marshal has even gone ahead to annex certain territories of Aryan, which culminated
in the Bortex Agreement of 1998 demarcating a new borderline between Aryan and
Marshal known as the Line of Control (LOC). Additionally, this Agreement also
made it mandatory to make the LOC a demilitarized zone.
6. Recently, on the 15th of October 2017, the Aryan army started conducting patrolling
operations in the LOC. The operations were discovered by Major Dmitri Godman
who was in charge of the Alpha unit manning one of the Marshal border outposts.
Major Godman went on to ward off the infiltration attempt by the Aryan army along
with five other soldiers, and all of them were eventually caught as a result of being
overpowered by the Aryan army after they ran out of ammunition.
7. Marshal army had conducted large-scale military operations in the LOC resulting in a
full-fledged war within the territory known as the Marshal- Aryan border skirmish
which lasted from 20th October 2017 to 25th December 2017. Marshal emerged
victorious in this war by brutally crushing the Aryan.
8. The result of the war was that first, Marshal annexed the LOC as part of its territory;
second, Marshal captured close to 47000 POW as well close to 100 civilians and
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lastly, as a result of the humiliating defeat in the war, the Aryan government was
sacked along with an imposition of martial law with the army taking over the reins of
the government.
9. The Aryan government requested Marshal to hand over the POW as well as the
civilians captured by them, in exchange for Major Godman, along with his five
soldiers, who happened to be the only POWs captured by Aryan.
10. The offer was refused by Marshal by stating that these soldiers would be kept in
permanent captivity as a punishment for Aryan’s constant indulgence in unnecessary
war and aggression, and also since the recent unprovoked war on the LOC meant that
Aryan needs to be given a constant reminder for its wrongdoings. However, Marshal
agreed to release the civilians except one namely Mr. Alex, whom they claimed was
being detained on charges of espionage as he belonged to the Aryan Secret Service.
11. Even the repeated requests from Aryan to Marshal to have consular access to Mr.
Alex were denied stating that Mr. Alex was a threat to the country of Marshal and
permitting consular access would only further endanger their nation.
12. On the 02nd Feb.2018, the Marshal border outpost received a sealed parcel with an
enclosed letter which contained mutilated body parts of all the soldiers captured by
Aryan, with Major Godman’s name tag appearing on top of all the chopped-up body
pieces.
13. After much criticism within Aryans, General Vadim tried to salvage the situation by
stating that he was right in doing what he did. He committed to bringing Aryan to
book and consequently made a declaration to invoke Article 4 of the Bortex
Agreement which gives rise to the jurisdiction of the ICJ for acts committed during
wartime. A notice was accordingly sent to Aryan for the brutalities committed on
Major Dmitri Godman, for bringing ICJ jurisdiction into the Foray.
14. Aryan firmly opposed ICJ jurisdiction to the matter at hand, and stated that it does not
accept the ICJ’s jurisdiction in a matter which can be resolved through diplomatic
means, or through negotiations, or through an aggressive act which could finally settle
the dispute between the two countries. Furthermore, it maintains that Article 4 of the
Bortex Agreement is not applicable to the present matter since the LOC as envisaged
in the Bortex Agreement does not currently exist.
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STATEMENT OF ISSUES

JURISDICTION OF ICJIS ENFORCEABLE
2. WHETHER THE TREATMENT METED OUT WITH MAJOR DMITRI

GODMAN COMES WITHIN THE JURISDICTION OF THE COURT
3. WHETHER MARSHAL IS ENTITLED TO GET BACK THE PRISONERS OF

WAR CAPTURED BY THE MARSHAL
4. WHETHER MARSHAL IS ENTITLED TO SEEK THE APPROPRIATE

DAMAGES
5. WHETHER THE ARYAN IS ENTITLED TO HAVE CONSULAR ACCESS

TO MR. ALEX
Page | 10
SUMMARY OF ARGUMENTS

JURISDICTION TO ICJ IS ENFORCEABLE
The Hon’ble court has found the compulsory jurisdiction based upon the consent of both the
parties which is drawn from the Article 4 of Bortex agreement and hence fulfils the pre-
requisite for its jurisdiction in contentious cases under Article 36 (1) of ICJ statute and acts a
special agreement under Article 40(1) of ICJ statute. It can determine its own jurisdiction in
the instant matter and hence the preliminary objection raised by the respondent is invalid.
Hence the Hon’ble Court has the jurisdiction in the instant case.

GODMAN IS CONTRARY TO THE PRINCIPLES OF INTERNATIONAL LAW
It is contended that the treatment meted out with Major Dmitri Godman and 5 other soldiers,
which includes mutilation, murder and inhumane treatment, is contrary to the provisions of
Geneva Convention, UN charter, ICCPR, UDHR and the customary international
humanitarian law, therefore, Aryan is liable to be prosecuted and punished for the
commission of such acts.

CURRENTLY
Marshal is not bound to return the POWs according to Article 118 of the third Geneva
Convention because the hostilities have not ended yet which is the main requirement to return
POWs. In addition to the statement of a letter sent along with mutilated bodies is a clear
evidence of a continuation of hostilities and a threat to Marshal’s national security if 47, 000
POWs is returned to Aryan. Therefore Marshal is justified to keep them until the hostilities
and threat is over.

UNDER INTERNATIONAL LAW
Marshal is entitled to seek damages for the violation caused by Aryan by way of the grave
breach and breach of UN Charter ICCPR, ICESCR and UDHR. The violation of the treaty by
performing patrolling in the DMZ has threatened the sovereignty of Marshal and led to the
eruption of war causing the loss of life and property which needs to be compensated by the
Aryan in an appropriate manner.
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TO MR. ALEX
Mr. Alex has been arrested on charges of espionage and could not be given consular access.
There are no consular relations existing between both states and they are not signatories to
VCCR. The spies forfeit the right of communication when caught and hence Marshal was
justified in denying consular access to him as it might also threaten national security.
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ARGUMENTS ADVANCED

JURISDICTION TO ICJ IS ENFORCEABLE
Applicant humbly submits that the Hon’ble court has found the compulsory jurisdiction based
upon the consent4 of both the parties which is drawn from the Article 45 of Bortex agreement
and hence fulfils the pre-requisite for its jurisdiction in contentious cases under Article 36
(1)6 of ICJ statute and acts a special agreement under Article 40(1)7 of ICJ statute. Under the
principle of Kompetenz-kompetenz, the ICJ can determine its own jurisdiction in the instant
matter8 based upon finding that the arguments in favour thereof are preponderant.9
Article 36 (1)10, of the Statute, also provides that the jurisdiction of the Court comprises all
matters specially provided for in treaties and conventions in force. Such matters are normally
brought before the Court by means of a written application instituting proceedings; this is a
unilateral document which must indicate the subject of the dispute and the parties11and, as far
as possible, specify the provision on which the applicant founds the jurisdiction of the
Court12. In the instant Marshal has instituted an application proceeding before the ICJ which
is duly admitted by the ICJ Registry. Hence the jurisdiction of the Hon’ble court is invoked
by the Marshal.
Article 36(6) of the ICJ statute13states that in the event of a dispute as to whether the Court
has jurisdiction, the matter shall be settled by the decision of the Court.
4
Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v. United States) Merits, Judgment,
1986 I.C.J. 14 (June 27).; Application for Revision and Interpretation of the Judgment of 24 February 1982 in
the Case concerning the Continental Shelf, Judgement, 1985 I.C.J. 192, 216 (December 10); Interpretation of
Peace of Treaties case with Bulgaria, Hungary and Romania, (Bulgaria, Hungary & Romania v. Allied states)
Judgement, 1950 I.C.J. 71 (July 18); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
v. Nigeria: Equatorial Guinea intervening), Judgement, 2002 I.C.J. 303,421 (October 10)., Armed Activities on
the Territory of the Congo, (the Democratic Republic of the Congo v. Rwanda), Judgment, Jurisdiction and
Admissibility, 2006 I.C.J..6, 18 (February 03); Certain Questions of Mutual Assistance in Criminal Matters,
(Djibouti v France), Judgment, 2008 I.C.J. 177,200 (June 04).
5
Bortex Agreement art. 4, Apr. 10, 1998, annexure-1.
6
ICJ statute, supra note 1, art. 36(1).
7
Id, art. 40.
8
Andreas Zimmermann, et al., Statute of the International Court of Justice: A Commentary, 649 (2012);
Fisheries Jurisdiction, (Spain v Canada), Judgment, Jurisdiction, 1998 I.C.J. 432 ¶ 37-38 (December 04);
Nuclear Tests (New Zealand. v. France), Admissibility, Judgement, 1974 I.C.J. 457, ¶ 23(December 20).
9
Fisheries Jurisdiction, supra note 6, citing Border and Transborder Armed Actions, Judgment, Jurisdiction and
Admissibility, (Nicaragua v. Honduras) 1988 I.C.J. 69, 76 (December 20); See also Factory at Chorzów,
(Germany v. Poland), 1928 P.C.I.J. (Series A) No. 9, ¶ 32. (September 13).
10
ICJ statute, supra note 1, art. 36(6).
11
Id, art. 40.
12
Id, art. 38.
13
Id, art. 36(6).
Page | 13
The ICJ Statute grants the ICJ the jurisdiction over all cases which parties refer to it and all
matters specifically provided for in treaties and conventions in force. 14The ICJ determines its
jurisdiction as a question of law resolved in light of the relevant facts.15 In the instant case,
the Hon’ble Court is empowered to decide upon its own jurisdiction.
Under the principle of Kompetenz-kompetenz, the ICJ can determine its own jurisdiction
should any dispute arise on the matter.16 The ICJ has consistently exercised this power before
determining the merits of the case.17 Thus, the ICJ can exercise its jurisdiction over the
dispute upon finding that the arguments in favour thereof are preponderant.18 Applying this
principle ICJ has the jurisdiction to decide the instant matter.
Therefore the Hon’ble Court has every jurisdiction to hear the instant matter,
firstly with respect to the its jurisdiction by deciding upon the enforceability of the Bortex
agreement which the applicant will establish by proving that the Bortex agreement acts as the
consent of both the parties with respect to the LOC dispute and the application regarding the
same was also admitted by the ICJ Registrar.
Secondly, on other issues raised with respect to the humiliating treatment meted out with
Dmitri Godman, a breach on the treaty and international obligation by Aryan by performing
an unprovoked attack on LOC, amount of compensation and justification for denial of
consular access to Mr.Alex.
Thirdly, The recent jurisprudence of the court establishes the clear principles that the
existence of negotiations between parties is not an impediment to the court’s exercise of
jurisdiction.19
14
Id, art. 36(1);Fisheries Jurisdiction, (Germany v Iceland), Jurisdiction, Judgment, 1973 I.C.J. 146, ¶ 28,29,45
(February 02); Legality of Use of Force, (Serbia and Montenegro v. Belgium), Judgment, Preliminary
Objections, 2004 I.C.J. 279 (December 15); Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie, (Libya v. United States), Judgment, Preliminary
Objections, 1998 I.C.J. 115 ¶ 28 (July 09); SHABTAIROSENNE, JURISDICTION: THE LAW AND PRACTICE OF
INTERNATIONAL COURT , 2, 641 (3rd ed. 1996); Nuclear Tests, supra note 8, ¶ 23.
15
Border and Transborder Armed Actions, supra note 9.
16
Andreas Zimmermann, supra note 8; Fisheries Jurisdiction, supra note 8; Nuclear Tests, supra note 8.
17
Legality of Use of Force, (Serbia and Montenegro v. United Kingdom), Preliminary Objections, 2004 I.C.J.
1307, ¶ 33 (December 15); See also Corfu Channel case (United Kingdom v. Albania), Preliminary Objection,
1948 I.C.J. 15 (March 25); Ambatielos case (Greece v. United KIngdom) PreliminaryObjection, 1952 I.C.J. 28
(July 01); Nottebohm (Liechtenstein v. Guantanamo), Preliminary Objection (Second phase), 1955 I.C.J. 4
(April 06);Questions of Interpretation and Application of the 1971 Montreal Convention, supra note 14, ¶ 16.
18
Fisheries Jurisdiction, supra note 8, citing Border and Transborder Armed Actions, supra note 9; see also
Factory at Chorzów, supra note 9.
19
Aegean Sea Continental Shell (Greece v. Turkey) Jurisdiction, Judgment, 1978 I. C. J. 12, ¶ 29 (December
19).
Page | 14
Bortex Agreement is a Consent of Aryan
Article 36 (1) of ICJ Statute states the jurisdiction of the Court comprises all cases which
the parties refer to it and all matters specially provided for in the Charter of the UN or in
treaties and conventions in force.20
Article 40(1) states that the Cases which are brought before the Court, as the case may be,
either by the notification of the special agreement or by a written application addressed to
the Registrar. In either case, the subject of the dispute and the parties shall be indicated.21
Article 38(1) states that when proceedings before the Court are instituted by means of an
application addressed as specified in Article 40, paragraph 1, of the Statute, the application
shall indicate the party making it, the State against which the claim is brought, and the
subject of the dispute.22
The Hon’ble Court itself has frequently recalled, the "well-established principle of
international law embodied in the Court’s Statute, namely, that the Court can only exercise
jurisdiction over a State when its consent exists.23
Parties may refer a particular dispute to the ICJ by means of a special agreement or
compromise which will specify the dispute to be adjudicated between the parties present
before the court.24 This has been explicitly discussed by the ICJ and irrevocably established
as a principle in several cases.25 The Court will exercise jurisdiction wherein the consent of
the parties is explicit26and any agreement to this effect limits the power of the court to
question its own jurisdiction.27 The same concept was also duly noted by the courts in the
Nicaragua case. Similarly, in the Minquiers and Ecrehos case,28 the case was submitted to
the ICJ by virtue of a Special Agreement concluded between the United Kingdom and France
on December 29th. 1950. Similarly, the matter in Belgium/Netherlands, Frontier Land
20
ICJ statute, supra note 1.
21
Id art. 40.
22
International Court of Justice rules, supra note 3,art. 38(1).
23
Monetary Gold Removed from Rome in 1943, (Italy v. France &ors.) 1954 I.C.J. 32 (June 15); see also e.g.:
Rights of Minorities in Upper Silesia (Minority Schools), 1928 P.C.I.J. (Series A) no. 15, 22(April 26); I.C.J.,
Anglo-Iranian Oil Co. (United Kingdom v. Iran) Judgement, Jurisdiction, 1952 I.C.J. 102, 103 (July
22);Ambatielos,, supra note 17; Certain Phosphate Lands in Nauru, (Nauru v Australia), Preliminary
Objections, Judgment, 1992 I.C.J. 240, 260 (June 26);East Timor, (Portugal v Australia), Jurisdiction, Judgment,
1995 I.C.J. 90, 101(June 30).
24
Territorial and Maritime Dispute, (Nicaragua v. Columbia) Judgement, 2012 I.C.J. 124 (November 19).
25
Military and Paramilitary Activities, supra note 4.
26
Monetary Gold Remove, supra note 23.
27
Id.
28
Minquiers and Ecrehos case, (France v. United Kingdom), Judgment, Merits, 1953 I.C.J. 47 (November 17).
Page | 15
case29, Tunisia/Libya30 and Chad/Libya31 was submitted to the Court under a Special
Agreement.
In the instant case, Marshal and Aryan signed the Bortex agreement of 1998 which provides
for the formation of a new borderline known as Line of Control (LOC) with the main
objective to maintain peace so LOC was made a mandatorily a demilitarized zone. The
reason behind the agreement was a little tension between Aryan and Marshal with regard to
the annexation of certain territories.
It is submitted that the consent of the state to the Court’s jurisdiction may be established by
means of acts subsequent to the initiation of the proceedings 32 to avoid the impression that
the Court is extending its jurisdiction by means of fiction and that there must be a showing
that such consent is voluntary and indisputable33. However, in Qatar v. Bahrain34 Minutes of
the Meeting between the two foreign ministers can ground the ICJ of its jurisdiction35. For the
doctrine to apply, the consent of the state must (1) must be explicitly and clearly deduced
from the conduct of the state, and (2) the extent of the consent depends upon the matching of
the application made with the expression by the other party of its consent36. The application
must specify the legal grounds to which the jurisdiction of the Court is to be based 37. The
Court may assume jurisdiction over the dispute is when there is a compromise clause
contained in the treaty to which the applicant and the respondent is a state party. 38 So is the
Article 4 of the Bortex Agreement in the instant case.
The fact that the consent of both the parties to the dispute have given consent to the
jurisdiction of ICJ under the Bortex agreement voluntary and is indisputable. The ICJ
assumes the jurisdiction over the dispute at hand as per Article 4 of Bortex agreement to
which both states are party to.
29
Sovereignty over Certain Frontier Land, (Belgium v. Netherlands), Merits, Judgment, 1959 I.C.J. 209 (June
20).
30
Continental Shelf, (Tunisia v Libyan Arab Jamahiriya), Merits, Judgment, 1982 I.C.J. 18 (February 24).
31
Territorial Dispute, (Libya v Chad), Judgment, Merits, 1994 I.C.J. 6 (February 03).
32
SHABTAIROSENNE, supra note 14.
33
Corfu Channel Case, supra note 17; Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia), Judgment, Preliminary Objections, 2006 I.C.J.
595 (July 11).
34
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain) Jurisdiction
And Admissibility, 1994 I.C.J. 112 (July 01);
35
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgments,
Advisory Opinions and Orders, 1995 I.C.J. 6, 17, 25 (February 15).
36
Certain Criminal Proceedings in France (Republic of Congo v. France) ICJ Press Release, 2007/11 (April 18)
37
Certain Questions of Mutual Assistance, supra note 2, para 163.
38
ICJ statute, supra note 1, art. 40; International Court of Justice rules, supra note 3, art. 38.
Page | 16
According to Article 2(a) of VCLT “treaty” means an international agreement concluded

between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its particular
designation.39
Article 26 of VCLT which provides for “Pactasuntservanda” states that Every treaty in
force is binding upon the parties to it and must be performed by them in good faith.40
Article 31 of VCLT General rule of interpretation 1. A treaty shall be interpreted in good

faith in accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.41
This court should rule in light of the purpose and object of the statute. In Article 31 of
the Vienna Convention on the Law of Treaties, a treaty should be interpreted in the light of its
object and purpose. The nature of the treaty is significant in its interpretation.42 The ICJ was
established to encourage the peaceful settlement of disputes, one of the UN’s fundamental
goals evidenced by Articles 1 and 2 of the UN Charter. This intention is made clearer if seen
in the light of the different possible means by which jurisdiction can be conferred upon the
ICJ. Therefore, the Statute aims to encourage the peaceful settlement of disputes between
more States. The aim and object of the Bortex agreement were to maintain peace and lay
down a peaceful mechanism to settle disputes arising in relation to LOC. By invoking the ICJ
jurisdiction Marshal is adhering to the Bortex agreement and Aryan is also bound to submit
itself.
The Bortex agreement which is a treaty under Article 2(a) of VCLT43 so it has binding force
on both the party as per Pacta sunt servanda under Article 26 of the VCLT44. Therefore
Article 4 of the Bortex agreement forming the consent required under Article 36 (1) of the
ICJ Statute45 is binding upon Aryan. Also, the preamble of the Bortex Agreement speaks
about governing all activities and dispute in relation to LOC. Also, the Article 1 specifies that
its scope is with respect to the LOC. It means that whether now LOC exists or not cannot
39
Vienna Convention of Law of Treaties art. 2(a), Jan. 27, 1980, 1155 U.N.T.S. 331.
40
Id, art. 26.
41
Id, art. 31
42
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, 1951 I.C.J. 15 ¶ 22-23 (May 28).
43
Vienna Convention of Law of Treaties, supra note 39.
44
Id, art. 26.
45
ICJ statute, supra note 1.
Page | 17
affect the applicability of the treaty as the war crime and grave breaches were committed in
relation to LOC.
The non-existence of LOC does not in any manner terminate the treaty but could only give a
ground for its termination. Article 65 of VCLT states that “A party which, under the
provisions of the present Convention, invokes a ground for impeaching the validity of a
treaty, terminating it, withdrawing from it or suspending its operation, must notify the other
parties of its claim.”46
The suspension or termination of a treaty does not flow automatically from the breach. 47 The
notice must contain the reasons on which the claim for termination is based and the measures
it wants to take in written form to the depositary, or if there is none directly to the other
party.48 If no such procedural steps are taken, a tribunal may conclude that a party did not
intend to terminate it.49
The Aryan has not, in the present case, sent any notification to Marshal invoking a ground for
its termination. In such a situation, the Bortex agreement could not be termed to be
terminated and still manages to be in operation.
In the light of the above arguments submitted by the applicants, it is made clear that both the
parties to the present dispute have given voluntary consent to the jurisdiction of this Hon’ble
Court under the Bortex agreement. The no termination proceedings have been legally
initiated by Aryan and agreement is hence valid and operational.

GODMAN IS CONTRARY TO THE PRINCIPLES OF INTERNATIONAL
LAW
Applicant humbly submits before the Hon’ble court that the treatment meted out with Major
Dmitri Godman, which includes mutilation, murder and inhumane treatment, is against the
UN charter50, ICCPR51, UDHR52, Geneva Convention53and also the customary international
humanitarian law.
46
Vienna Convention of Law of Treaties, supra note 39, art. 65.
47
ROBERT KOLB, THE LAW OF TREATIES; AN INTRODUCTION, 222 (Edward Elgar Publishing, 2016).
48
Vienna Convention on Law of Treaties, supra note 39, art. 65 (1), 67 (1).
49
Eureko B.V. v. Slovak Republic case, PCA Case Repository 2008-13, Award On Jurisdiction, Arbitrability
and Suspension, (October 26, 2010) 72, 73 §§235-8.
50
U.N. Charter art. 33.
51
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171[hereinafter ICCPR].
52
Universal Declaration of Human Rights, (Dec. 10, 1948), 217 A (III)[hereinafter UDHR].
Page | 18
a) Geneva Conventions
The Geneva Convention to which both the states are a party and therefore is bound by its
provisions. Common Article 3(1)(a)54 of the 1949 Geneva Conventions provides that
mutilation of persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause is prohibited at any time and in any place whatsoever. Common
Article 355 of the Geneva Conventions prohibits “violence to life and person, in particular
murder of all kinds” of civilians and persons hors de combat. All four Geneva Conventions
list “wilful killing” of protected persons as a grave breach. 56 The prohibition of murder and
mutilation is recognized as a fundamental guarantee by Article 11 57 and Article 75(2) of
Additional Protocols I58 and Article 4(2) of Additional Protocol II.59
In the instant case Godman and 5 other soldiers, even though were the member of armed
forces, were detained in Aryan’s custody and subsequently Aryan mutilated and sent it to the
Marshal’s outpost.
In addition to this, Godman was a POW according to Article 460 and 561 of Third Geneva
Convention so with the application of Article 1362, which strictly prohibits physical
mutilation without any justified interest. According to the willful killing of Godman is a
grave breach under Article 130.63
In its judgement in the Nicaragua case (Merits)64 in 1986, the ICJ held that the rules
contained in common Article 3 of the Geneva Conventions reflected what the Court in 1949
53
Geneva Convention For The Amelioration Of The Condition Of The Wounded And Sick In Armed Forces In
The Field, Aug. 12, 1949, 75 UNTS 31[hereinafter First Geneva Convention]; Geneva Convention for the
Amelioration of the Condition of Wounded, Sick And Shipwrecked Members Of Armed Forces At Sea, Aug.
12, 1949, 75 UNTS 85[hereinafter Second Geneva Convention]; Geneva Convention Relative to the Treatment
of Prisoners Of War, Aug. 12, 1949, 75 UNTS 135[hereinafter Third Geneva Convention]; Geneva Convention
Relative to The Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 UNTS 287[hereinafter Fourth
Geneva Convention].
54
Id, art. 3(1)(a).
55
Id. Art. 3.
56
Id.
57
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts art. 11, Jun. 08, 1977, 1125 UNTS 3[hereinafter Protocol I].
58
Id. art. 75(2)
59
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of Non-International Armed Conflicts art. 4(2), Jun. 08, 1977, 1125 UNTS 609[hereinafter Protocol II].
60
Third Geneva Convention, supra note 53, art. 4.
61
Id. art. 5.
62
Id. art. 13.
63
Id. art. 130.
64
Military and Paramilitary Activities, supra note 4.
Page | 19
in the Corfu Channel case (Merits) had called “elementary considerations of humanity”.In
their statements before the International Court of Justice in the Nuclear Weapons case and
Nuclear Weapons (WHO) case, several States which were not at the time party to the main
human rights treaties stressed the elementary and non-derogable character of the right to
life.65
b) International Customary International Law
In 1997, ICRC in a working paper on war crimes submitted to the Preparatory Committee for
the Establishment of an International Criminal Court, proposing that the following crimes,
when committed in an international armed conflict, be subject to the jurisdiction of the
Court:biological experiments, subjecting persons who are in the power of the adverse Party or
who are interned, detained or otherwise deprived of liberty, to any medical procedure which
is not indicated by the state of health of the person concerned and which is not consistent
with generally accepted medical standards which would be applied in similar medical
circumstances to persons who are nationals of the Party conducting the procedure and who
are in no way deprived of liberty, in particular to carry out on such persons, even with their
consent:a) physical mutilations;b) medical or scientific experiments; and c) removal of tissue
or organs for transplantation.
In addition, the ICRC proposed that the crime of “mutilation”, when committed in a non-
international armed conflict, be subject to the jurisdiction of the Court. ICRC to fulfil its task
of disseminating IHL, the ICRC has delegates around the world teaching armed and security
forces that: “Mutilation is prohibited, unless indicated by the state of health of the individual
or medical ethics (e.g. removal of tissue or organs for transplantation).” The ICRC has on
numerous occasions condemned the killing of civilians and persons hors de combat, stating
that such behaviour is prohibited under international humanitarian law.66
Even the UN condemns the act of mutilation and murder in the reports of UN Commission
on Human Rights67, UNTAET Regulation No. 2000/1568, UN Secretary-General’s
65
See the statements before the ICJ by Indonesia, Malaysia, Mexico, Nauru and Qatar in the case of Legality of
the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 08).
66
ICRC, Annual Report 1982 § 958
67
Resolution 2003/15, Commission on Human Rights Resolution 2003/15: Situation of Human Rights in the
Democratic Republic of the Congo, UN Commission on Human Rights (Apr. 17, 2003), Human Rights Doc.
E/CN.4/RES/2003/15, Preamble and Section 2.
68
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, (Jun.
06, 2000), UN Doc. UNTAET/REG/2000/15, section 6(1)(b)(x) and (e)(xi).
Page | 20
Bulletin69. International Law commission also is against the same - ILC Draft Code of
Crimes against the Peace and Security of Mankind (1991)70 ILC Draft Code of Crimes
against the Peace and Security of Mankind (1996)71
The UN Human Rights Committee, in its General Comment on Article 7, specifies that
special protection against such experiments is necessary in the case of persons not capable of
giving valid consent, in particular, those under any form of detention or imprisonment.72 The
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, adopted by consensus by the UN General Assembly, prohibits medical or
scientific experimentation which may be detrimental to health, even with the detainee’s
consent.73
Alleged violations of this rule have consistently been condemned by States and international
organizations, for example, by the UN Security Council, UN General Assembly and UN
Commission on Human Rights with respect to the conflicts in Afghanistan, Burundi and the
former Yugoslavia.74
c) Customs
The European Court of Human Rights has held that those medical measures taken in relation
to a detainee that is dictated by therapeutic necessity cannot be regarded as inhuman or
degrading.75 Numerous military manuals specify the prohibition of physical mutilation,
medical or scientific experiments or any other medical procedure not indicated by the state of
69
Observance by UN Forces of International Humanitarian Law, Secretary- General’s Bulletin, UN Secretariat,
(Aug. 06, 1999), UN Doc. ST/SGB/1999/13, section 7(2).
70
Draft Code of crimes against the peace and security of mankind, adopted by the international Law
Commission, Reprinted in report of the international law commission on the work of its 43 th session, (Apr. 29-
Jun. 19, 1996), UNDoc. A/46/10,1991, Articles 22(2)(a).
71
Draft Code of crimes against the peace and security of mankind, adopted by the international Law
Commission, Reprinted in report of the international law commission on the work of its 48 th session, (May 26-
Jul. 26, 1996),UNDoc. A/51/10,1996, Articles 18(k),20(a)(ii) and 20(f)(i).
72
ICCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading
Treatment or Punishment), UN Human Rights Committee, (Mar. 10, 1992)
73
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, General
Assembly resolution 43/173, (Dec. 9, 1988), Principle 22.
74
Resolution 827, Establishment of the International Tribunal for Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991, UN Security Council, (May 23, 1993) UN Doc. S/RES/827; Resolution 1019, Violation of
International Humanitarian Law in former Yugoslavia, UN Security Council, (Sept. 11, 1995) UN Doc.
S/RES/1019; Resolution 1072, Comprehensive political settlement of the crisis in Burundi, UN Security
Council, (Aug. 30, 1996) UN Doc. S/RES/1072;Res. 50/193, Situation of human rights in the Republic of
Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and
Montenegro), UN General Assembly, (Dec. 22, 1995) UN Doc. A/50/635/Add.3.
75
Herczegfalvy v. Austria, Judgment, Merits and Just Satisfaction, 1992 Eur. Ct. H.R. 83 (Sept. 24).
Page | 21
health of the patient and not consistent with generally accepted medical standards. 76 The
prohibition is also found extensively in national legislation.
The prohibition of the murder of civilians was already recognized in the Lieber Code.77
Murder of civilians and prisoners of war was included as a war crime in the Charter of the
International Military Tribunal at Nuremberg.78 The prohibition on killing civilians and
person hors de combat are set forth in numerous military manuals.79 It is also contained in the
legislation of a large number of States. This prohibition has been upheld extensively in
national and international case-law.80 Furthermore, it is supported by official statements and
other practice.
Duty as to not mutilate or despoil the dead bodies under international law
Each party to the conflict must take all possible measures to prevent the dead from being
despoiled. Mutilation of dead bodies is prohibited. State practice establishes this rule as a
norm of customary international law applicable in both international and non-international
armed conflicts.
The obligation to take all possible measures to prevent the dead from being despoiled (or
pillaged) was first codified in the 1907 Hague Convention81. It is now also codified in the
Geneva Conventions82 and is also contained in Additional Protocol I83, albeit in more general
terms of “respecting” the dead, which includes the notion of preventing the remains from
being despoiled.
The prohibition of mutilating dead bodies in international armed conflicts is covered by the
war crime of “committing outrages upon personal dignity” under the Statute of the
76
Israel, Laws of war in the battlefield, Manual, Military Advocate General Headquarters, Military School,
1998,51.; Mexico, cartilla De Dereco International Humanitario, Ministry of National Defence, 2009, $5.; South
Africa, Revised Civic Education Manual, South African National Defence Force, 2004, chapter 4, $ 57.; United
Kingdom, The Manual of the Law of the Armed Conflict, Ministry of Defence, 1 July 2004, $ 9-4.; United
States, Military Commissions Act, 2004, $ 950t (1) and (15)
77
Lieber Code, (Apr. 23, 1863) art 23 and 44.
78
International Military Tribunal Charter Annex to the Agreement for the prosecution and punishment of the
major war criminals of the European Axis (Nuremberg), art. 6(b) (Aug. 08, 1945).
79
Israel, Laws of war in the battlefield, supra note 76; Mexico, cartilla De Dereco, supra note 76; United
Kingdom, The Manual of the Law of the Armed Conflict, supra note 76.
80
Attorney General of Israel v. Eichmann, 36 I.L.R. 227 (ISR. SUP. CT. 1962); Military and Paramilitary
Activities, supra note 4; Nuclear Tests, supra note 7; Prosecutor v. Tadic, Case No. IT-94-1-A, Interlocutory
Appeal, Second Amended Indictment and Judgment, International Criminal Tribunal for Yugoslavia.
81
Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations
Concerning the Laws and Customs of War on Land (Oct. 18, 1907).
82
Geneva Conventions, supra note 53.
83
Protocol I, supra note 57.
Page | 22
International Criminal Court, which according to the Elements of Crimes also applies to dead
persons.84
Article 91 of Additional Protocol I85 states that the “a party to the conflict which violates the
provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay
compensation. It shall be responsible for all acts committed by persons forming part of its
armed forces.”
In the light of above principles of international law and judicial decisions, the applicant
contends that the treatment meted out to Major Godman is in violation of principles of
international law, especially international humanitarian law, and treaties and conventions that
both nations are party to. Aryan as a party to these international laws is responsible for the
acts committed by its armed forces against Major Godman.

CURRENTLY
The applicant humbly submits before this Hon’ble Court that the Marshal is not bound to
return the Prisoners of War currently under article 118 of Third Geneva Convention, which
states “Prisoners of war shall be released and repatriated without delay after the cessation of
active hostilities”,86as there still exists the active hostilities
International Humanitarian Law applies to the initiation of such armed conflicts and extends
beyond the cessation of hostilities. Armed conflict is said to be in existence whenever there is
a resort to armed forces between states or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State.87 This is to
say that even when the hostilities have ceased the armed conflict may continue.
The end of hostilities is to be determined by the factual situation on the ground. 88 Under IHL,
“‘the close of hostilities’ should be taken to mean a state of fact rather than the legal situation
84
.Rome Statute of International Criminal Court, Jul. 17, 1998, 2187 UNTS 90.
85
Protocol I, supra note 57, art. 91
86
87
Prosecutor v. Tadic, supra note 80, ¶ 70.
88
JEAN S. PICTET, COMMENTARY TO GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN
PERSONS IN TIME OF WAR (FOURTH GENEVA CONVENTION), (International Committee of Red Cross, Geneva,
1958)[hereinafter Commentary to the Fourth Geneva Convention].
Page | 23
covered by laws or decrees fixing the date of cessation of hostilities.”89 Political statements
may ultimately reflect an assessment of the reality on the ground.
The Conventions uses the term “active hostilities” instead of the terms “conflict” or “state of
war” found elsewhere in the document is significant. It serves to distinguish the physical
violence of war from the official beginning and end of a conflict because fighting does not
necessarily track formal timelines.”90 The ICRC’s Interpretive Guidance on the Notion of
Direct Participation in Hostilities defines hostilities as “the (collective) resort by the parties to
the conflict to means and methods of injuring the enemy.”91
The word “close of hostilities” means the actual end of the fighting and not the official
termination of a state of belligerency.92 The end of hostilities is a question of fact determined
when “there is no immediate expectation of their resumption.”93 In a time of war, the
internment of captives is justified by a legitimate concern to prevent military personnel from
taking up arms once more against the Captor State. That reason no longer exists once the
fighting is over.94
In the present case the statements made by Aryan by attaching a note with the package of
mutilated body of Major Godman which read “Be ready, we are going to hit you soon”95 and
statement that it does not accept the jurisdiction of the ICJ in the matter which could be
resolved through be could be an aggressive act which could finally settle the dispute.96This
kind of statements made by Aryan clearly shows the aggressive attitude of it and its
likelihood of resumption of hostilities.
89
Id.
90
Al-Bihani v. Obama, 590 F.3d 866, 878–79 (D.C. Cir. 2010).
91
NILS MELZER, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER
INTERNATIONAL HUMANITARIAN LAW43 (2009).
92
Commentary to the Fourth Geneva Convention, supra note 88, art. ¶ 1.
93
UK Ministry of Defence, The Joint Service Manual of the Law Of Armed Conflict, JSP 383, ¶. 8.169, at 205
(2004).
94
JEAN S. PICTET, COMMENTARY TO GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF
WAR (THIRD GENEVA CONVENTION), 546 (International Committee of Red Cross, Geneva, 1958)[hereinafter
Commentary to the Third Geneva Convention].
95
Moot proposition ¶ 14.
96
Moot proposition ¶ 18.
Page | 24
Also, article 4 of the ICCPR provides temporary derogation only, “in time of public
emergency which threatens the life of the nation” and “to the extent strictly required by the
exigencies of the situation.”97
Secretary-General of the United Nations and must satisfy strict requirements. In its General
Comment No. 29, the Human Rights Committee stated: “Measures derogating from the
provisions of the Covenant must be of an exceptional and temporary nature, Not every
disturbance or catastrophe qualifies as a public emergency which threatens the life of the
nation, A fundamental requirement for any measures derogating from the Covenant, is that
such measures are limited to the extent strictly required by the exigencies of the
situation.98While detention is allowed when necessary for security reasons 99 and the purpose
of military detention is to prevent the belligerent from taking further part in hostilities100.
In the case of Humdi vs Rumsfeld101, Justice O’Connor stated: We conclude that detention of
individuals falling into the limited category we are considering, for the duration of the
particular conflict in which they were captured, is so fundamental and accepted an incident to
war as to be an exercise of the “necessary and appropriate force” Congress has authorized the
President to use. The capture and detention of lawful combatants and the capture, detention,
and trial of unlawful combatants, by “universal agreement and practice,” are “important
incident[s] of war.” The purpose of detention is to prevent captured individuals from
returning to the field of battle and taking up arms once again102.
Two specific post-WWII incidents are instructive as to the customary law of detention as it
relates to repatriation. The liberation of Italy from Axis control began in July 1943, and the
hostilities in Italy formally ceased on May 2, 1945103.During the War, the Department of
Justice interned about 250 Italians in the United States104. Most were interned because of
their close ties to their home country, the fact that they were members of pro-Axis groups,
97
ICCPR, supra note 51, art. 4(1).
98
General Comment No. 29, “Derogation during a state of emergency”, in “International human rights
instruments: Compilation of general comments and general recommendations adopted by human rights treaty
bodies”, UN Doc. HRI/GEN/1/Rev.7 (2004).
99
Fourth Geneva Convention, supra note 53, arts. 42, 78.
100
In re Territo, 156 F.2d 142, 145 (9th Cir. 1946)
101
Humdi v. Rumsfeld, 542 U.S. 507 (2004).
102
Id. at 518.
103
War in Italy Ends, N.Y. TIMES, (May 3, 1945) http://www.nytimes.com/learning/
general/onthisday/big/0502.html#article.
104
Paula Branca-Santos, Injustice Ignored: The Internment of Italian-Americans During World War II, 13 Pace
Int’l L. Rev. 151, 164-65 (2001).
Page | 25
they possessed forbidden weapons, or they were known to oppose the United States’
involvement in the war.105
None of these detainees were actual fighters but was thought to be dangerous to U.S. interests
and were not released or repatriated until the end of the overall war in Europe, well after the
liberation of Italy.It appears that the U.S. government believed it was lawful to detain Italians
who it thought were still a danger within the larger on-going conflict, even though the
conflict with Italy had ceased.106 As a result, any requirement to repatriate was linked to a
broader view of hostilities as long as the detainees were deemed likely to engage in the
continuing conflict.
In the case of Al-Bihani v. Obama107, the Department of Defense, through its Administrative
Review Board (ARB) process, determined that al-Bihani remain[ed] a threat108.” The
government asserted that “case law, as well as the laws of war, recognize that detainees may
be held for the duration of the conflict, without judicial second-guessing as to whether a
given individual remains a threat to return to the battlefield.”
In response to these arguments, the court determined: That the Conventions use the term
“active hostilities” instead of the terms “conflict” or “state of war” found elsewhere in the
document is significant. It serves to distinguish the physical violence of war from the official
beginning and end of a conflict because fighting does not necessarily track formal timelines.
The Conventions, in short, codify what common sense tells us must be true: release is only
required when the fighting stops.109In other words, the conflict is not over for al-Bihani, and
he cannot be released until the end of hostilities.
In the light of above statements, it could be inferred that the hostilities have not yet ceased as
there is a threat of resumption of armed conflict and as a signatory to the Geneva Convention,
a party is bound to repatriate the prisoners of war only after the cessation of active hostilities
and releasing of these Prisoners of War in current situation could lead them to again take up
arms against the Marshal as the threat of resumption of fighting still persists. These
inferences are enough to justify the act of Marshal of not releasing the Prisoners of War.
105
JERRE MANGIONE, CONCENTRATION CAMPS–AMERICAN STYLE, in UN ASTORIA SEGRETA: THE SECRET
HISTORY OF ITALIAN AMERICAN EVACUATION AND INTERNMENT DURING WORLD WARII 117, 118–19
(Lawrence DiStasi ed., 2001)
106
Id. at 118, 131.
107
Al-Bihani v. Obama, supra note 90.
108
Id.
109
Id.
Page | 26
4. WHETHER MARSHAL IS ENTITLED TO SEEK APPROPRIATE

DAMAGES UNDER INTERNATIONAL LAW
Applicant humbly submits before the Hon'ble court that according to the general principle of
International Law which states that for any wrongful act in terms of violation of conventions
there is an obligation to make reparation.110 Therefore Aryan is entitled to reparation by way
of compensation for the violation of the Geneva Convention and ICCPR to which both the
state are a party.
Reparation for Breach of Geneva Convention
A requirement to pay compensation for violations of international humanitarian law is

expressly reiterated in Article 91 of Additional Protocol I.111Despite this explicit language, it
should be noted that the obligation to make reparation arises automatically as a consequence
of the unlawful act, without the need for the obligation to be spelt out in the convention. A
nation who is party to the Geneva conventions is bound to make reparation to the other party
if they have violated the provisions of the convention and that has led to the infliction of
injury on the other nation. The Court observes that it is well established in general
international law that a State which bears responsibility for an internationally wrongful act is
under an obligation to make full reparation for the injury caused by that act.112
Further the treatment of willful killing and mutilation meted out by Aryan with Dmitri
113
Godman and 5 soldiers (as discussed in ISSUE-2) comes under the ambit of grave breach
under article 130114of third Geneva Convention and as per article 131115 no high contracting
parties can absolve itself of any liability incurred by itself in respect of breaches referred to in
the preceding article. Therefore Aryan is liable to compensate for the violation of the
international humanitarian law.
The character of the internationally wrongful acts for which a state can be found responsible
are illegal use of force, violation of sovereignty and territorial integrity, military intervention,
110
111
UN Declaration on the Protection of All Persons from Enforced Disappearances of the 1992art. 19,UN Doc.
A/47/49, 18 December 1992.
112 Armed Activities, supra note 4; Factory at Chorzów, supra note 9; The Gabčikovo- Nagymaros Project case,
(Hungary v. Slovakia), Reports of Judgments, Advisory Opinions and Orders, 1997 I.C.J. 7, ¶ 152 (September
25); Avena and Other Mexican Nationals, Judgment on Jurisdiction, Admissibility and Merits, (Mexico v.
United States) 2004 I.C.J. 12, 59, ¶ 119 (March 31).
113
Moot Proposition, ¶ 14.
114
115
Id. art. 131.
Page | 27
violations of international human rights law and of international humanitarian law, looting,
plunder and exploitation of the natural resources, the Court considers that those acts resulted
in injury to another state and to persons on its territory.116Compensation is a monetary
payment for financially assessable damage arising from the violation. It covers material and
moral injury.117
Having satisfied itself that the fear caused by way of patrolling in LOC, which was a DMZ
without sanction118 which acts as a violation of Article 3119 of the Bortex Agreement is the
mental injury to the Marshal and the Hon’ble Court should consider that Aryan has an
obligation to make reparation accordingly. This violation has led to the outbreak of war and
is the root cause for the material loss in the form of destruction of property.
Further, it has been held by ICJ in the case concerning the factory at Chorzow that “It is a
principle of international law, that the breach of an engagement involves an obligation to
make reparation in an adequate form. Reparation, therefore, is the indispensable complement
of a failure to apply a convention and there is no necessity for this to be stated in the
convention itself”. 120
Explaining as to what reparation means the international court of justice has explained it in
the case of, Mexico vs United States of America,121 What constitutes "reparation in an
adequate form" clearly varies depending upon the concrete circumstances surrounding each
case and the precise nature and scope of the injury, since the question has to be examined
from the viewpoint of what is the "reparation in an adequate form" that corresponds to the
injury. In a subsequent phase of the same case,122 the Permanent Court went on to elaborate
on this point as follows:
"The essential principle contained in an the actual notion of illegal-act a principle which
seems to be established by international practice and in particular by the decisions of
arbitral tribunals is - that reparation must, as far as possible, wipe out all the consequences
of the illegal act and re-establish the situation which would, in all probability, have existed if
that act had not been committed."
116
Armed Activities, supra note 4.
117
Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 36, International Law
Commission, Nov. 2001, Supplement No. 10 (A/56/10), chp.IV.E.1
118
Moot Proposition, ¶ 7.
119
Bortex Agreement art. 3, Apr. 10, 1998, Annexure-1.
120
121
Avena and Other Mexican Nationals, supra note 112.
122
Id.
Page | 28
Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value
which a restitution in kind would bear; the award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or payment in place of it – such are the
principles which should serve to determine the amount of compensation due for an act
contrary to international law.”123Examples include the release of wrongly detained persons,
the return of wrongly seized property and the revocation of an unlawful judicial measure.124
Insofar as restitution is not possible, as the Court stated in the case of the Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), “It is a well-established rule of international law that
an injured State is entitled to obtain compensation from the State which has committed an
internationally wrongful act for the damage caused by it”125It is, therefore, appropriate to
consider what were the consequences of the failure of Aryan to comply with its obligations
under the Geneva Convention to protect the POW and also in violation Aryan willfully killed
and mutilated them, committed in Bosnia and Herzegovina, and what damage can be said to
have been caused thereby.
It should be noted that violations of all rules of international humanitarian law give rise to an
obligation to make reparation and not only violations of the grave breaches provisions for
which there is individual criminal responsibility. Finally, it should also be pointed out that the
law and practice referred to above relate to international armed conflicts. Neither common
Article 3of the Geneva Conventions nor their Additional Protocol II mention compensation or
any other form of reparation, and there have been virtually no instances where organized
armed groups have undertaken to make reparations for violations of international
humanitarian law or have made such reparations in practice. Although a responsibility to
make reparation would be a natural consequence of the fact that organized armed groups are
bound by international humanitarian law, to date such responsibility has taken the form of
individual criminal responsibility of violators, for example before the International Criminal
Tribunal for Rwanda.
123
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2004 I.C.J. 136 (July 09); Factory at Chorzów,supra note 9.
124
Draft Articles on Responsibility of States, supra note 117, art. 35.
125
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) Judgement, 2012 I.C.J. 81, ¶
152; Legal Consequences of the Construction of a Wall, supra note 123.
Page | 29
Acceptance of a duty to make reparation is also often found in treaties concluded between
belligerents at the end of hostilities.126 However, this obligation frequently not expressly
related to violations of international humanitarian law but rather to violations of the
prohibition of the use of force, or treaties merely speak even more vaguely of “claims arising
out of the war”.127While many of the losses and claims may, in practice, arise from violations
of international humanitarian law, there is no need for a determination of a violation to be
made.
One recent and notable exception in this respect is the peace agreement of December 2000
between Ethiopia and Eritrea.128 Inter alia, this establishes a neutral Claims Commission
charged with deciding, through binding arbitration, all claims between the two governments
and between private entities for loss, damage or injury related to the conflict and resulting
from violations of international humanitarian law or other violations of international law.
This Commission is an exception inasmuch as it is expressly tasked with awarding
compensation for violations of international humanitarian law.
A grave breach of the Geneva Convention leading to the infliction of injuries amounts them
to pay compensation to the Marshal. We request the international court of justice, as per
article132 to conduct an enquiry in this matter as the neutral body as to amount the
compensation.
5. WHETHER MARSHAL WAS JUSTIFIED IN DENYING CONSULAR

ACCESS TO MR. ALEX
The Applicant humbly submits before this Hon’ble that Marshal was right in denying the
consular access to Mr. Alex. The applicant contends that a) The consular relations have been
severed by the outbreak of war, and b) the person caught on a charge of espionage during the
existence of armed conflict has forfeited his right of communication.
a) The consular relations are suspended due to the outbreak of war
The counsel humbly submits that the Marshal was right in denying the consular access to Mr.
Alex as the consular relations are suspended with the outbreak of war.
126
Convention on the Settlement of Matters Arising out of the War and the Occupation between the United
Kingdom of Great Britain and Northern Ireland, France, the United States of America and Germany art. 1(1),
May 26, 1952, 219 UNTS 4762.
127
Treaty of Peace between the Allied Powers and Japan, San Francisco art. 14(a), Sept. 08, 1951, 136 UNTS
45.
128
Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of
the State of Eritrea art. 5, Dec. 12, 2000, 993 UNTS 3.
Page | 30
The consular relations are governed by the Vienna Convention on Consular relations,
1963129. The article 36130 of the said convention deals with the right of consular access. Both
the countries are not signatories to the Vienna Convention on Consular Relations, 1963.
Hence Mr. Alex is not entitled to consular access under the said convention.
Even if recourse is taken to the customary international law, the counsel pleads that there
were no existence of any consular relations. Due to the outbreak of war, all the relations
between the belligerent states are broken. The diplomatic and consular relations between the
belligerent states are severed with the outbreak of war.131
The relations between belligerent states are resumed when the war has ended and a treaty of
peace is signed by the states. In the case at hand, the hostilities are still continuing and the
treaty of peace is not signed.
b) The person caught on a charge of espionage during the existence of armed conflict
has forfeited his right to communication.
A spy is defined as a person can only be considered a spy when, acting clandestinely or on
false pretences, he obtains or endeavours to obtain information in the zone of operations of a
belligerent, with the intention of communicating it to the hostile party.132
The right of consular access is provided for spies detained in peacetime but no right is
provided for the spy who entered the adverse state after the outbreak of war. Historical
accounts of the ancient world commonly discuss the activities of spies and the importance of
accurate information in determining the outcomes of battles and wars. The regulation of
wartime intelligence activities has been an issue for nation-states for centuries and is best
embodied in the Geneva Conventions of 1949133 and Additional Protocol I of 1977134 to the
Geneva Conventions.135
129
Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T.77 [hereinafter VCCR].
130
Id art.36.
131
DR. J. H. W. VERZIJI, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE: THE LAW OF WAR, 23, vol IX-A,
(Sijthof&Noordhoof Publishers, 1978); SK KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS, (18th ed., Central
Law Agency);
132
Hague Convention (IV), supra note 81, art. 29.
133
Fourth Geneva Convention, supra note 53, art. 4.
134
Protocol I, supra note 57.
135
Glenn Sulmasy & John Yoo, Counterintuitive: Intelligence Operations and International Law, 28 MICH. J.
INT'L L. 625 (2007); SIMON CHESTERMAN, SHARED SECRETS: INTELLIGENCE AND COLLECTIVE
SECURITY 1-10 (2006).
Page | 31
Article 5(2) of the fourth Geneva convention states “Where in occupied territory an
individual protected person is detained as a spy or saboteur, or as a person under definite
suspicion of activity hostile to the security of the Occupying Power, such person shall, in
those cases where absolute military security so requires, be regarded as having forfeited
rights of communication under the present Convention.”
The individual protected person is defined as a “Persons protected by the Convention are
those who, at a given moment and in any manner whatsoever, find themselves, in case of a
conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which
they are not nationals.”136
Mr. Alex is an individual protected person as per the given definition as he has been detained
by the occupying power of LOC i.e. Marshal and is a citizen of co-belligerent state i.e.
Aryan. He is being detained on the charges of espionage and is considered to be a spy.137
In the present case, there has been an existing armed conflict between both the nations and
Mr. Alex is a threat to the nation of Marshal and giving him consular access would further
endanger the nation. The military security is absolutely required as any leak of information
about the occupying power would be a threat to the national security of Marshal.
The fourth Geneva Convention states that such a person who has been detained on charges of
espionage is to be regarded as having forfeited his right to communication. In the case at
hand, Mr. Alex has been detained on charges of espionage and he is presumed to have
forfeited his right of communication and is not entitled to have consular access during the
existence of armed conflict.
The special character of espionage means that there is a need for additional security measures
and surveillance in relation to persons suspected of spying. The Commission stated that while
the increased security measures are permitted, they might not extend to interference with the
fundamental rights of a detainee.138
The case at hand is being a case of spying requires an additional security measure. Allowing
a spy to communicate with the officials of his nation during the existence of armed conflict
would be a threat to Marshal and thus denying him consular access is a measure of additional
136
Fourth Geneva Convention, supra note 53, art. 4.
137
Moot Proposition ¶ 12.
138
Treholt v. Norway, Admissibility decision, App. No. 71/368, Eur. Comm’n of Human Rights Dec. & Rep.,
192, 194 (1991).
Page | 32
security. The Marshal is ready to ensure that Mr. Alex would be entitled to a fair trial and his
fundamental rights will not be interfered.
In the light of above arguments, the applicant submits that the Marshal was justified in
repeatedly denying consular access to Mr. Alex but will ensure his fair trial under all the
international laws and conventions to which Marshal is a signatory to.
Page | 33
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that;
1. The Bortex agreement forming the consent for the jurisdiction of ICJ is
enforceable; and
2. The treatment meted with Major Godman is within the jurisdiction of the court;
and
3. Marshal is not bound to return the prisoners of war captured; and
4. Marshal is entitled to seek appropriate damages; and
5. Marshal is justified in denying Consular access to Mr.Alex.
The Court may also be pleased to pass any other order, which it may deem fit in light of
justice equity and good conscience.
-----------------------------------------------------------------------
All of which is most humbly prayed
-----------------------------------------------------------------------
COUNSEL FOR THE APPLICANT
Page | 34

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TEAM CODE –1505

7TH PROFESSOR V.S. MANI NATIONAL MEMORIAL INTERNATIONAL LAW

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

I.C.J. REPORT NO. /___

CASE CONCERNING THE BORDER SKIRMISH BETWEEN MARSHAL AND

MARSHAL (APPLICANT) / ARYAN (RESPONDENT)

SPRING TERM 2018

MEMORANDUM ON THE BEHALF OF THE APPLICANT

COUNSEL ON THE BEHALF OF APPLICANT

OTHER INTERNATIONAL CASES

INTERNATIONAL CONVENTIONS AND TREATIES

UN AND OTHER INTERNATIONAL DOCUMENTS

BOOKS, ARTICLES & JOURNALS

1. Marshal is a landlocked country located in the African continent ruled by a dictator,

1. WHETHER THE BORTEX AGREEMENT FORMING THE CONSENT FOR

2. WHETHER THE TREATMENT METED OUT WITH MAJOR DMITRI

3. WHETHER MARSHAL IS ENTITLED TO GET BACK THE PRISONERS OF

4. WHETHER MARSHAL IS ENTITLED TO SEEK THE APPROPRIATE

5. WHETHER THE ARYAN IS ENTITLED TO HAVE CONSULAR ACCESS

1. WHETHER THE BORTEX AGREEMENT FORMING THE CONSENT FOR

2. WHETHER THE TREATMENT METED OUT WITH MAJOR DMITRI

3. WHETHER MARSHAL IS BOUND TO RETURN THE PRISONERS OF WAR

4. WHETHER MARSHAL IS ENTITLED TO SEEK APPROPRIATE DAMAGES

5. WHETHER MARSHAL WAS JUSTIFIED IN DENYING CONSULAR ACCESS

1. WHETHER THE BORTEX AGREEMENT FORMING THE CONSENT FOR

Bortex Agreement is a Consent of Aryan

According to Article 2(a) of VCLT “treaty” means an international agreement concluded

Article 31 of VCLT General rule of interpretation 1. A treaty shall be interpreted in good

2. WHETHER THE TREATMENT METED OUT WITH MAJOR DMITRI

b) International Customary International Law

3. WHETHER MARSHAL IS BOUND TO RETURN THE PRISONERS OF WAR

exigencies of the situation.”97

4. WHETHER MARSHAL IS ENTITLED TO SEEK APPROPRIATE

Reparation for Breach of Geneva Convention

A requirement to pay compensation for violations of international humanitarian law is

5. WHETHER MARSHAL WAS JUSTIFIED IN DENYING CONSULAR

a) The consular relations are suspended due to the outbreak of war

All of which is most humbly prayed

COUNSEL FOR THE APPLICANT

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