Icc Moot Court Competition (international Rounds: Finalists): Prosecution Memorial

TEAM NO. 25 COUNSEL FOR THE PROSECUTION ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE 2016

WORD COUNT: 9,920

Original: English

Date: 21 February, 2016

THE APPEALS CHAMBER

SITUATION IN PORVOS

The Prosecution’s Submission in the Appeal from the Pre-Trial Chamber’s Decision on Jurisdiction and Motion to Disqualify one of the Pre-Trial Chamber Judges

 

2    

TABLE OF CONTENTS

  LIST OF ABBREVIATIONS........................................................................................................... 5 INDEX OF AUTHORITIES ............................................................................................................ 7 Cases ...................................................................................................................................... 7 Articles ................................................................................................................................. 10 Books ................................................................................................................................... 14 Treaties and Conventions ..................................................................................................... 16 Miscellaneous ...................................................................................................................... 17 STATEMENT OF FACTS ............................................................................................................ 20 ISSUES RAISED ......................................................................................................................... 22 SUMMARY OF ARGUMENTS ..................................................................................................... 23 WRITTEN ARGUMENTS ........................................................................................................... 24 I.

OSTY’S RECRUITMENT AND USE OF JUVENILE PIRATES

CONSTITUTES A CRIME AGAINST HUMANITY UNDER ART.7 OF THE ICC STATUTE ........................................................................................................................... 24 A.

The use of juvenile pirates on Porvosian-flagged vessels qualify as attacks

against a civilian population in the territory of Porvos .............................................. 24 i.

OSTY’s recruitment and use of juvenile pirates constitutes an ‘attack’ .............. 24

ii.

The attack occurred on Porvosian territory ........................................................ 25

B.

The consent of the juveniles’ parents does not preclude the crime of

enslavement .................................................................................................................... 27 C.

The number of child pirates satisfies Art.7’s implicit ‘numerosity

requirement’ ................................................................................................................... 29 D.

OSTY is an entity that is capable of committing crimes against humanity ..... 30 i.

The interpretation and existence of an ‘organization’ under Art.7(2)(a) is not a

jurisdictional question ................................................................................................. 30 ii.

In any event, OSTY fulfills the requirements of an ‘organization’ under

Art.7(2)(a) .................................................................................................................... 31 3    

II. OSTY’S CROSS-BORDER CONTAMINATION OF PORVOS’S WATER SUPPLY CONSTITUTES A WAR CRIME UNDER ART.8(2)(b)(iv) OF THE ICC STATUTE ........................................................................................................................... 32 A.

The conduct in question occurred on Porvosian territory ................................. 33

B.

The contamination took place in the course of and in furtherance of an

international armed conflict.......................................................................................... 35 i.

OSTY meets the criteria to acquire statehood ..................................................... 35

ii.

OSTY’s actions can be attributed to Yunkel ........................................................ 36

C.

The damage caused is widespread, long-term and severe .................................. 38

D.

The damage was excessive in relation to the concrete military advantage

anticipated ...................................................................................................................... 41 i.

OSTY’s attack contravenes fundamental principles of humanitarian law........... 41

ii.

In any event, the military advantage anticipated by OSTY is not significant

enough .......................................................................................................................... 42 III. JUDGE HASTY SHOULD NOT BE DISQUALIFIED UNDER ARTS. 40 & 41 OF THE ICC STATUTE .................................................................................................. 43 A.

Yunkel has no locus standi to initiate proceedings of disqualification. ............. 43

B.

J.Hasty’s opinion does not meet the standard for disqualification ................... 43

CONCLUDING SUBMISSIONS .................................................................................................... 45

4    

LIST OF ABBREVIATIONS

¶

Paragraph

¶¶

Paragraphs

Art.

Article

Arts.

Articles

AU

African Union

Doc.

Document

ECHR

European Commission on Human Rights

Ed.

Editor

Edn.

Edition

Eds.

Editors

ENMOD

Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques

et al

And others

EU

European Union

FARC

The Revolutionary Armed Forces of Colombia

ICC

The International Criminal Court

ICJ

International Court of Justice

ICRC

International Committee of the Red Cross

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the former Yugoslavia

Id.

Ibidem

ILC

International Law Commission

J.

Judge

NATO

The North Atlantic Treaty Organization 5  

 

No.

Number

OSTY

Olmic State of Tyvosh and Yunkel

PCIJ

Permanent Court of International Justice

Prof.

Professor

SCSL

Special Court for Sierra Leone

Ser.

Series

UN

United Nations

UNGA

United Nations General Assembly

UNHCHR

United Nations High Commissioner for Human Rights

UNICEF

United Nations Children’s Fund

UNSC

United Nations Security Council

VCLT

Vienna Convention on the Law of Treaties

6    

INDEX OF AUTHORITIES

CASES

EUROPEAN COMMISSION ON HUMAN RIGHTS 1.

W, X, Y & Z v. The United Kingdom, Appl. No. 3435-3438/67

28

(ECHR), Decision of 19 July 1968.

INTERNATIONAL CRIMINAL COURT 1.

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No.ICC-

28, 29, 38,

02/05-01/09.

44

2.

Prosecutor v. Bemba, Case No. ICC-01/05-01/08.

29, 31, 32

3.

Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07.

29, 31, 32, 34, 43

4.

Prosecutor v. Mathieu Ngudjolo Chui, Case No.ICC-01/04-01/07-

34

262. 5.

Prosecutor v. Muthauru et al, Case No. ICC-01/09-02/11 OA 4.

30

6.

Prosecutor v. Ruto et al, Case No. ICC-01/09-01/11 OA3 OA4.

30

7.

Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06.

26, 28, 43, 44

8.

Situation in Democratic Republic of Congo, Case No.ICC-01/04.

34

9.

Situation in the Republic of Cote d’Ivoire, Case No.ICC-02/11-14.

29, 31, 32, 34

7    

10.

Situation in the Republic of Kenya, Case No. ICC-01/09.

28, 29, 30, 31, 32, 34, 38

11.

The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh

43, 44

Mohammed Jerbo Jamus, Case No. ICC-02/05-03/09.

INTERNATIONAL COURT OF JUSTICE 1.

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v.

26

Belgium) ICJ Rep. 2002 3 [Joint Separate Opinion of Judges Higgins, Buergenthal and Kooijmans]. 2.

Corfu Channel (United Kingdom v Albania), Merits, ICJ Rep 4

37

(1949). 3.

United States Diplomatic and Consular Staff in Tehran (Hostages) 37 (United States v. Iran), ICJ Rep 3 (1980).

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA 1.

Prosecutor v. Akayesu, Case. No. ICTR-96-4-T.

24

2.

Prosecutor v. Gatete, Case No. ICTR-2000-61-T.

30

3.

Prosecutor v. Kajelijeli, Case No. ICTR -98-44A-T.

30

4.

Prosecutor v. Munyakazi, Case No. ICTR-97-36A-T.

30

5.

Prosecutor v. Ndahimana, Case No. ICTR-01-68-T.

30

6.

Prosecutor v. Serugendo, Case No. ICTR-2005-84-T.

30

8    

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 1.

Prosecutor v. Blaskic, Case No. IT-95-14-T.

31

2.

Prosecutor v. Đorđević, Case No. IT-05-87/1.

30

3.

Prosecutor v. Galić, Case No. IT-98-29.

30

4.

Prosecutor v. Kordić & Čerkez, Case No. IT-95-14/2.

30

5.

Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T.

24

6.

Prosecutor v. Perišić, Case No. IT-04-81.

30

7.

Prosecutor v. Simić et al, Case No. IT-95-9-T.

30

8.

Prosecutor v. Stakić, Case No. IT-97-24.

30

9.

Prosecutor v. Tadic, Case No. IT-94-1-T.

31, 35, 36

10.

Prosecutor v. Vasiljević, Case No. IT-98-32.

30

PERMANENT COURT OF INTERNATIONAL JUSTICE 1.

The Case of the S.S. “Lotus” (Turkey v. France) 1927 PCIJ Ser. A No. 10, 23.

26

OTHERS 1.

Ajay Agarwal v. Union of India [Indian Supreme Court].

26

2.

Alaska v. Jack 125 P.3d 311 (2005) [Alaska Supreme Court].

26

3.

Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, 37 30 ILM 577 (1990).

4.

Board of Trade v Owen (1957) AC 602 [U.K. Court of Appeals].

9    

26

5.

Director of Public Prosecutions v Doot UKHL [1973] 1 All ER

26

940. 6.

DPP v Stonehouse (1977) 2 All ER 909 [U.K. Court of Appeals].

26

7.

Ford v United States, 273 US 593 (1927) [U.S. Supreme Court].

26

8.

Gallo Africa Ltd and Others v. Sting Music (Pty) Ltd and Others

26

2010 (6) SA 329 [South African Supreme Court of Appeal]. 9.

Gvk Inds. Ltd & Anr v. The Income Tax Officer & Anr. (2011) 4

26

SCC 36 [Indian Supreme Court]. 10.

Iannelli v United States, 420 US 770 (1975) [U.S. Supreme

26

Court]. 11.

Opinion No.1 (Conference on Yugoslavia, Arbitration

36

Commission) 3 EJIL 1 (1992). 12.

Prosecutor v. Fofana, Case No. SCSL-04-14-T-796, Trial

28

Chamber Judgment, ¶192 (October 9, 2007). 13.

Smith, R (on the application of) v Secretary of State for Defence & 26 Anr. (2010) UKSC 29 [U.K. Supreme Court].

14.

Wood pulp, Osakeyhtiö and ors. v. Commission of the European

26

Communities ECR 5193 ILEC 035 (1988) [Court of Justice of the European Union].

ARTICLES

1.

A. Coleman, The Islamic State and International Law: An Ideological Rollercoaster, 5(2) Journal of the Philosophy of International Law 75 (2014).

10    

36

2.

A. Fenton & D. Price, Breaking ISIS: Indonesia’s Legal Position

36

on the ‘Foreign Terrorist Fighters’ Threat, 16(1) AUSTRALIAN JOURNAL OF ASIAN LAW 2 (2015). 3.

A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable

25, 26, 28

on Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411 (2014). 4.

B.C. Moore et al, Survival of Salmonella Enterica in Freshwater,

40

69(8) APPLIED ENVIR. MICROB. 4556 (2003). 5.

C. Thomas, Advancing the Legal Protection of the Environment in

39, 40

Relation to Armed Conflict, 82 NORDIC J. INT’L. L. 83 (2013). 6.

C.E. Bellew, Secession in International Law: Could ISIS Become

36

a Legally Recognized State?, 42 OHIO N.U.L. Rev. 239 (2015). 7.

C.S. Jacobsen, Soil Survival of Salmonella and Transfer to

40

Freshwater, 45(2) FOOD RESEARCH INTERNATIONAL 557 (2012). 8.

D. Fleck, The Protection of the Environment in Armed Conflict,

40

82 NORDIC J. INT'L L. 7 (2013). 9.

D. Gaswanga, Does the ICC Have Jurisdiction over the

25, 26

Recruitment and Use of Child Pirates?, 19 ILSA J. Int'l & Comp. L. 277 (2013). 10.

D. Robinson, Defining 'Crimes Against Humanity' at the Rome

31

Conference, 93 AJIL 43 (1999). 11.

H.R. Williamson, New Thinking in the Fight Against Marine

25, 26, 28

Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 335 (2014). 12.

J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of War, 15 FLA. J. INT’L L. 481 (2002-2003).

11    

41, 42

13.

J. Dill, Applying the Principle of Proportionality in Combat

42

Operations, Policy Briefing, OXFORD INSTITUTE OF ETHICS, LAW AND ARMED CONFLICT, 3 (2010).

14.

J. Lawrence & K. Heller, The Limits of Art.8(2)(b)(iv) of the Rome

40

Statute, 20 GEO. INT'L ENVTL. L. REV. 61 (2008). 15.

J. Wyatt, Law-making at the Intersection of International

39

Environmental, Humanitarian and Criminal Law, 92 INT’L. REV. OF THE RED CROSS 593 (2010).

16.

M. Bothe, The Protection of the Civilian Population and NATO

40

Bombing on Yugoslavia, 12(3) EJIL 531 (2001). 17.

M. Drumbl, Waging War Against the World: The Need to Move

40

from War Crimes to Environmental Crimes, 22 FORDHAM INT’L. L. J. 122 (1999). 18.

M. Halpern, Protecting Vulnerable Environments in Armed

39, 40

Conflict, 51 STANF. J. INT’L. L. 119 (2015). 19.

M. Sassoli, Legitimate Targets of Attacks under International

41

Humanitarian Law, Background Paper, HARV. PROG. ON HUMANITARIAN POLICY AND CONFLICT RESEARCH, 1 (2003). 20.

M.A. Drumbl, Child Pirates: Rehabilitation, Reintegration and

25, 26, 28

Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 235 (2014). 21.

M.C. Bassiouni, Crimes Against Humanity: The Case for a

32

Specialized Convention, 9(4) WASHINGTON UNIV. GLOBAL STUDIES LAW REVIEW 575 (2010). 22.

N. Popovic, Humanitarian Law, Protection of the Environment and Human Rights, 8 GEO. INT'L ENVTL. L. REV. 67 (1996).

12    

40

23.

O. Schachter, The Lawful Use Of Force By A State Against

37

Terrorists In Another Country, 19 ISRAEL YRBK ON HUMAN RIGHTS 209 (1989). 24.

P. Gleick, Water and Conflict: Fresh Water Resources and

40

International Security, 18(1) INTERNATIONAL SECURITY 79 (1993). 25.

P. Hwang, Defining Crimes Against Humanity in the Rome Statute 29 of the International Criminal Court, 22(2) FORDH. INT’L L. J. 457 (1998).

26.

R. Barnbridge, State’s Due Diligence Obligations with Regard to

36, 37

International Non-State Terrorist Organisations Post-11 September 2011: The Heavy Burden that States Must Bear, 16 IRISH STUD. IN INT’L AFFAIRS 103 (2005). 27.

R. Gilman, Expanding Environmental Justice After War, 22 COLO. 40 J. INT'L ENVTL. L. & POL'Y 447 (2011).

28.

R. Reyhani, Protection of the Environment During Armed

39, 40

Conflict, 14 MO. ENVTL. L. & POL’Y. REV. 323 (2007). 29.

R.L. Lawton & E.V. Morse, Salmonella Survival in Freshwater,

40

15(4) JOURNAL OF ENVIRONMENTAL SCIENCE AND HEALTH 339 (2008). 30.

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE

25, 26, 28

WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 217 (2014). 31.

Talmon, The Constitutive versus the Declaratory Theory of

36

Recognition: Tertium Non Datur?, 75 BYIL 101 (2004). 32.

W.A. Schabas, Punishment of Non-State Actors in Non-

31

International Armed Conflict, 26(4) FORDH. INT’L L. J. 907 (2002). 33.

W.A. Schabas, State Policy as an Element of International Crimes, 98(3) JOURNAL OF CRIM. L. & CRIMINOLOGY 953 (2008). 13  

 

31

34.

Z. Yihdego, The Islamic ‘State’ Challenge: Defining the Actor, E-

36

INTERNATIONAL RELATIONS (24 June, 2015).

BOOKS

1.

A. Cassese, THE OXFORD COMPANION TO INTERNATIONAL

26

CRIMINAL JUSTICE (2009). 2.

A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL

29, 31, 42

CRIMINAL COURT: A COMMENTARY, VOL.I (2002). 3.

A. Clapham et al, THE OXFORD HANDBOOK OF INTERNATIONAL

39

LAW IN ARMED CONFLICT (2014). 4.

C. Ryngaert, JURISDICTION IN INTERNATIONAL LAW (2nd edn.,

26

2015). 5.

D. Raic, STATEHOOD AND THE LAW OF SELF-DETERMINATION

35, 36

(2002). 6.

E. Milano, UNLAWFUL TERRITORIAL SITUATIONS IN

36

INTERNATIONAL LAW (2006). 7.

G. Werle & F. Jessberger, PRINCIPLES OF INTERNATIONAL

29

CRIMINAL LAW (3rd edn., 2014). 8.

9.

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (8th edn.,

26, 33, 35,

2012).

36

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW

35, 36

(2nd edn., 2007). 10.

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III (2004). 14  

 

41, 42

11.

K. Ambos, TREATISE ON INTERNATIONAL CRIMINAL LAW, VOL.II

29

(2014). 12.

K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL

39, 40

THRESHOLD (2004). 13.

K. Kittichaisaree, INTERNATIONAL CRIMINAL LAW (2001).

31

14.

M. Kohen, SECESSION: INTERNATIONAL LAW PERSPECTIVES

36

(2006). 15.

M. Vagias, THE TERRITORIAL JURISDICTION OF THE

26, 33, 34

INTERNATIONAL CRIMINAL COURT (2011). 16.

M.C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL

32

CRIMINAL LAW (1999). 17.

M.C. Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL

34

LAW (2003). 
 18.

M.C. Bassiouni, THE LEGISLATIVE HISTORY OF THE

32

INTERNATIONAL CRIMINAL COURT, VOL.I (2005). 19.

N. Boister, AN INTRODUCTION TO TRANSNATIONAL CRIMINAL

26

LAW (2012). 20.

O. Agbu, CHILDREN AND YOUTH IN THE LABOUR PROCESS IN

28

AFRICA (2009). 21.

O. Ebbe & D.K. Das, GLOBAL TRAFFICKING IN WOMEN AND

28

CHILDREN (2007). 22.

O. Triffterer, COMMENTARY ON THE ROME STATUTE OF THE

31, 34

INTERNATIONAL CRIMINAL COURT (2008). 23.

S. Whitman et al, CHILDREN AND YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND THE WAY FORWARD (2012).

15    

25, 26, 28

24.

W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL

30

CRIMINAL COURT (4th edn., 2011). 25.

W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A

26, 29, 31,

COMMENTARY TO THE ROME STATUTE (2010).

41

TREATIES AND CONVENTIONS

1.

ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION 16 ILM

41, 42

1391 (1977). 2.

CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER

39

HOSTILE USE OF ENVIRONMENTAL MODIFICATION TECHNIQUES, U.N. Doc. No. A/RES/31/72 (1977). 3.

CONVENTION ON THE RIGHTS OF THE CHILD, 1577 U.N.T.S. 3

25

(1989). 4.

MONTEVIDEO CONVENTION ON THE RIGHTS AND DUTIES OF

36

STATES, 165 LNTS 19 (1933). 5.

OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE

28

CHILD ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT, U.N. Doc. No. A/RES/54/263 (May 25, 2000). 6.

PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN

25, 27

PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL

ORGANIZED CRIME, U.N. Doc. No. A/55/383 (2000). 7.

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 37 ILM 24 1002 (1998).

16    

8.

SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY,

25, 27

THE SLAVE TRADE, AND INSTITUTIONS AND PRACTICES SIMILAR TO

SLAVERY, 226 U.N.T.S. 3 (1957).

MISCELLANEOUS

1.

Assembly of States Parties, Report of the Special Working Group on 34 the Crime of Aggression, ICC-ASP/7/SWGCA/2.


2.

Australia, The Manual on the Law of Armed Conflict (2006).

42

3.

Commentary to the Articles on State Responsibility for

36

Internationally Wrongful Acts, U.N. Doc. A/56/83 (2001). 4.

5.

ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT,

24, 25, 32,

ICC-ASP/1/3.

33

EU DIRECTIVE ON PREVENTING AND COMBATING TRAFFICKING IN

28

HUMAN BEINGS AND PROTECTING ITS VICTIMS, 2011/36/EU. 6.

Final Report to the Prosecutor by the Committee Established to

40

Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia (2000). 7.

Friendly Relations Resolution, UNGA Res. 2625, UN Doc. A/8028

37

(1970). 8.

Guidelines on the Protection of the Environment in Times of Armed

39

Conflict, U.N. Doc. No. A/RES/47/37 (1992). 9.

I. Bantekas, Criminal Jurisdiction of States under International Law, MAX PLANK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (2011). 17  

 

26

10.

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39

Operational Law Handbook (2007). 11.

International Committee of the Red Cross Statement of 8 July 1998

41

Relating to the Bureau Discussion Paper in Document A/CONF.183/C.1 /L.53, U.N. Doc. No. A/CONF.183/INF/10 (1998). 12.

International Humanitarian Law and The Challenges Of

42

Contemporary Armed Conflicts, REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS, 03/IC/09 (2003). 13.

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29

Code, 2 YBILC 2 (1996). 14.

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31

Activities (2013). 15.

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38

A/HRC/3/2 (2006). 16.

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31

the Syrian Arab Republic, U.N. Doc. No. A/HRC/30/48 (2015). 17.

Report of the Preparatory Committee on the Establishment of an

29

International Criminal Court, U.N. Doc. No. A/51/22 (1996). 18.

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43

COMMISSION. 19.

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25

20.

UNICEF, ESSENTIAL INFORMATION ABOUT CHILD TRAFFICKING

28

(2010). 21.

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25

VIOLENCE, EXPLOITATION AND ABUSE (2014). 22.

United Kingdom, The Manual of the Law of Armed Conflict (2004). 18  

 

42

23.

United Nations Environment Programme, PROTECTING THE

39

ENVIRONMENT DURING ARMED CONFLICT (2009). 24.

United Nations Office on Drugs and Crime, TOOLKIT TO COMBAT

28

TRAFFICKING IN PERSONS (2010). 25.

United Nations Office on Drugs and Crime, TRAVAUX

27

PRÉPARATOIRES OF THE NEGOTIATIONS FOR THE ELABORATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL

ORGANIZED CRIME AND THE PROTOCOLS THERETO (2006). 26.

United States Department of State, TRAFFICKING IN PERSONS

28

REPORT (2009). 27.

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42

Commander’s Handbook on the Law of Naval Operations (1997). 28.

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37

29.

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37

30.

UNSC Resolution 2133, U.N. Doc. No. S/RES/2133 (2014).

37

31.

UNSC Resolution 2199, U.N. Doc. No. S/RES/2199 (2015).

37

32.

UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015).

37

19    

STATEMENT OF FACTS

Porvos, a party to the ICC Statute since 2002, shares its boundaries with Tyvosh and Yunkel. Tyvosh and Yunkel have not ratified the ICC Statute. All three are democratic countries and have no army or navy. For the past 5 years, Yunkel has been the base of the Olmic State of Tyvosh and Yunkel (OSTY), an organization that seeks to establish an autonomous Olmic state in the southern portion of Yunkel and all of Tyvosh. OSTY was formed in 2010 and is led by Lance Raider, a national of Yunkel, who has helped OSTY purchase millions of dollars’ worth of weapons through his inherited property. Since its formation, OSTY’s membership has increased to over 50,000 members and Yunkel has been ‘unable and unwilling’ to control its growth. In January 2014, OSTY launched a coordinated series of attacks which resulted in its gaining control over all the territory of Tyvosh with the exception of its capital, Quirth. In April, 2014, Porvos commenced shipments of humanitarian aid to Quirth, at the request of Tyvosh’s government. In order to stop these shipments, OSTY converted two dozen vessels from Lance Raider’s shipping fleet into highly-equipped pirate ships and launched a series of attacks against the Porvosian aid vessels. The attacks were launched in June 2014, and took place on the high seas between Sylaria and Quirth. By February 2015, OSTY was successful in capturing 30 Porvos-flagged vessels and taking 550 Porvosian crew members hostage, confiscating $10 million worth of cargo. In these attacks, OSTY used approximately 2,000 pirates. Half of these pirates were under the age of fourteen. These juvenile pirates were systematically recruited by Lance Raider and his OSTY lieutenants, who contracted with the parents of the juveniles to share a percentage of the piratical booty. In February 2015, the Porvosian vessels bound for Quirth began to employ armed private security forces. These security forces successfully repelled many of the pirate attacks. An estimated 1,000 pirates, including 500 juveniles, were killed in these skirmishes. 
 In March 2015, OSTY announced that it would poison the rivers that feed Mirror Lake, on which half the Porvosian population depended for water, unless Porvos ceased its aid shipments. When Porvos refused, OSTY contaminated the rivers with Salmonella, which resulted in an outbreak of disease, causing 50 deaths and 3,000 hospital visits. The shipments 20    

were halted by Porvos with immediate effect after the attack, but other nations began to ship aid to Quirth. On April 10, 2010, the Office of the Prosecutor requested the Pre-Trial Chamber for authorization to investigate whether OSTY committed international crimes within the jurisdiction of the ICC: a)   by recruiting and using child pirates in attacks against Porvosian vessels as a crime against humanity; and 
 b)   by contaminating Porvos’ water supply, as a war crime under Art.8(2)(b)(iv) of the ICC Statute. The Counsel for the Government of Yunkel raised the following objections: First, the recruitment and use of juvenile pirates by OSTY could not constitute a crime against humanity under Art.7 of the Court’s Statute; Second, the contamination of Mirror Lake could not constitute a war crime under Art.8(2)(b)(iv) of the ICC Statute; Third, Judge Rosemelle Hasty, one of the three members of the Pre-Trial Chamber, must be disqualified from the case under Arts.40 & 41 of the ICC Statute because she had earlier published an opinion stating that the ICC could try the recruitment and use of juvenile pirates as a crime against humanity, in the context of Somalian Piracy. The Pre Trial Chamber, after duly considering all the submissions and arguments: a)   Declined to disqualify Judge Hasty; b)   Ruled that, if proven, the recruitment and use of juvenile pirates by OSTY could be tried as a crime against humanity under Art.7 of the Court’s Statute; 
 c)   Ruled that, if proven, the intentional contamination of Porvos’ water supply could be tried as a war crime under Art.8(2)(b)(iv) of the Court’s Statute. 
 Consequently, the Pre-Trial Chamber authorized the Prosecutor to investigate the aforementioned crimes. Yunkel has appealed against this decision.

21    

ISSUES RAISED

-IWHETHER THE RECRUITMENT AND USE OF JUVENILE PIRATES BY OSTY CAN BE TRIED AS A CRIME AGAINST HUMANITY WITHIN THE JURISDICTION OF THE INTERNATIONAL CRIMINAL

COURT UNDER ARTICLE 7 OF THE ICC STATUTE 


-IIWHETHER OSTY’S CROSS-BORDER CONTAMINATION OF PORVOS’S WATER SUPPLY CAN CONSTITUTE THE WAR CRIME UNDER ARTICLE 8(2)(B)(IV) 


-IIIWHETHER J. HASTY SHOULD BE DISQUALIFIED UNDER ARTICLES 40 AND 41 OF THE ICC STATUTE

22    

SUMMARY OF ARGUMENTS

I. OSTY’s recruitment and use of juvenile pirates constitutes a crime against humanity under Art.7, ICC Statute. The systematic use of juvenile pirates by OSTY qualifies as an ‘attack’, as it constitutes repeated acts of enslavement. Further, because enslavement is a continuing offence which persisted on Porvosian ships, the objective territorial principle deems the entire crime to have occurred within Porvos. The consent of the juveniles’ parents to their piratical excursions does not preclude enslavement, as neither the Supplementary Convention on Slavery nor the Palermo Protocol grant it any exculpatory role. Further, the numerosity requirement under Art.7 is not mandatory and, in any event, the presence of hundreds of victims is sufficient to satisfy it. Finally, OSTY constitutes an ‘organization’ within the meaning of Art.7(2)(a), and is therefore capable of committing crimes against humanity. II. OSTY’s cross-border contamination of Mirror Lake with Salmonella constitutes a war crime under Art.8(2)(b)(iv), ICC Statute. The conduct in question is deemed to have occurred on Porvosian territory by virtue of the objective territorial principle as damage to the natural environment, a constituent element of the crime in question, occurred on Porvosian territory. Further, such damage took place in the course of and in furtherance of an international armed conflict, because OSTY constitutes a State or, alternatively, because its conduct can be attributed to Yunkel. Further the damage to the natural environment caused by the contamination was widespread, long-term and severe based on the ENMOD standard. Finally, this damage was disproportionate, because it violated fundamental principles of humanitarian law and, in any event, the military advantage anticipated by OSTY was neither ‘concrete’ nor ‘direct’. III. J.Hasty should not be disqualified under Arts.40 & 41, ICC Statute because Yunkel does not have locus standi to request her disqualification as per Art.41(2)(b), ICC Statute. In any event, the opinion expressed by her does not warrant disqualification because it was not of a conclusive nature.

23    

WRITTEN ARGUMENTS

I.  

OSTY’S RECRUITMENT AND USE OF JUVENILE PIRATES CONSTITUTES A CRIME AGAINST HUMANITY UNDER ART.7 OF THE ICC STATUTE

1.   Prosecution submits that OSTY’s recruitment and use of juvenile pirates constitutes a crime against humanity under Art.7, ICC Statute. The use of juvenile pirates on Porvosianflagged vessels qualify as attacks against a civilian population in the territory of Porvos [A]. The consent of the juveniles’ parents to their participation in piratical excursions does not preclude the crime of enslavement [B]. Further, the number of juvenile pirates satisfies Art.7’s implicit ‘numerosity requirement’ [C]. Finally, OSTY is an entity that is capable of committing crimes against humanity [D]. 
 A.   THE

USE OF JUVENILE PIRATES ON PORVOSIAN-FLAGGED VESSELS QUALIFY AS ATTACKS AGAINST A CIVILIAN POPULATION IN THE TERRITORY OF PORVOS

2.   Art.7, ICC Statute requires an ‘attack directed against any civilian population’ to occur within the territory of a State-party, for the commission of a crime against humanity. Prosecution submits that OSTY’s recruitment and use of juvenile pirates constitutes such an attack [i], which took place on Porvosian territory [ii]. i.  

OSTY’s recruitment and use of juvenile pirates constitutes an ‘attack’

3.   An ‘attack’ under Art.7 need not be violent, but merely requires the multiple commission of acts specified under Art.7(1).1 ‘Enslavement’ is one such act.2 Prosecution submits that OSTY’s recruitment and use of juvenile pirates involved repeated acts of enslavement, and thereby constitutes an ‘attack’. 4.   As per the Elements of Crimes,3 enslavement includes conduct that reduces a person to a servile status, as defined under the Supplementary Convention on the Abolition of Slavery. Art.1(d) of the Supplementary Convention states that the delivery of a child by his parents                                                                                                             1

Element 3 of Art.7, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 5; Prosecutor v. Akayesu, Case. No. ICTR-96-4-T (ICTR), 581; Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T (ICTY), Judgment, 416. 2

Art.7(1)(c), ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 37 ILM 1002 (1998).

3

Footnote 11, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 6.

24    

to another person, with a view of exploiting the child, reduces the child to such servile status.4 Moreover, enslavement also includes the trafficking of children.5 Art.3(c) of the Palermo Protocol states that ‘the recruitment … of a child for the purpose of exploitation shall be considered trafficking’.6 Any form of labour that endangers a child’s life, health or wellbeing is necessarily exploitative.7 The use of children for the purposes of piracy certainly endangers their life and physical wellbeing,8 as evinced by the death of half the juveniles recruited by OSTY for piratical excursions.9 Hence, the recruitment and use of juvenile pirates is exploitative, and reduces the child to a servile status, while also constituting a form of trafficking. Both these acts amount to enslavement. As OSTY carried out such recruitment and use of juveniles systematically,10 they committed multiple acts of enslavement. Thus OSTY’s recruitment and use of juvenile pirates constitutes an ‘attack’ under Art.7. ii.  

The attack occurred on Porvosian territory

5.   According to Art.12(2), ICC Statute, a vessel is deemed to constitute the territory of the State of registration. As per the objective territorial principle, when any constituent element of a crime, or its consequences, occurs on a State’s territory, the entire crime is deemed to

                                                                                                            4

Art.1(d), SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY, 226 U.N.T.S. 3 (April 30, 1957). 5

Footnote 11, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 6.

6

Art.3(c), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME, U.N. Doc. No. A/55/383 (November 15, 2000). 7

Art.32, CONVENTION ON THE RIGHTS OF THE CHILD, 1577 U.N.T.S. 3 (November 20, 1989); UNHCHR, Exploitation and Abuse: Critical Issues, 6 (2001); UNICEF, Global Statistics on Children's Protection from Violence, Exploitation and Abuse, 1 (2014). 8

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 217, 229 (2014); A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable on Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411, 423 (2014); M.A. Drumbl, Child Pirates: Rehabilitation, Reintegration and Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 235, 251 (2014); H.R. Williamson, New Thinking in the Fight Against Marine Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 335, 350 (2014); S. Whitman et al, CHILDREN AND YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND THE WAY FORWARD, 43 (2012); D. Gaswanga, Does the ICC Have Jurisdiction over the Recruitment and Use of Child Pirates?, 19 ILSA J. Int'l & Comp. L. 277, 290 (2013). 9

¶¶7-8, The Problem.

10

¶7, The Problem.

25    

have been committed within the territory of such State.11 This principle has been applied by numerous municipal courts,12 the ICJ in the Arrest Warrant case,13 the PCIJ in the Lotus case,14 and is supported by several jurists.15 In case of continuing offences, the objective territorial principle enables all States in which the criminal conduct persists to exercise jurisdiction, even if such conduct did not originate within their territory.16 6.   In the present case, OSTY conducted its piratical attacks on Porvosian vessels.17 Juvenile pirates were used in such attacks.18 In the Lubanga case, this Court observed that the offence of recruitment and use of child soldiers is ‘continuous in nature’ and only terminates ‘when the child reaches 15 years of age or leaves the force or group’.19 This principle is also applicable to the recruitment and use of juvenile pirates, as the two crimes are considered identical.20 Thus, although the crime of recruiting and using juvenile pirates                                                                                                             11

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 (8th edn., 2012).

12

Ford v United States, 273 US 593 (1927) [U.S. Supreme Court]; Iannelli v United States, 420 US 770 (1975) [U.S. Supreme Court]; Smith, R (on the application of) v Secretary of State for Defence & Anr. (2010) UKSC 29 [U.K. Supreme Court]; Gallo Africa Ltd and Others v. Sting Music (Pty) Ltd and Others 2010 (6) SA 329 [South African Supreme Court of Appeal]; Gvk Inds. Ltd & Anr v. The Income Tax Officer & Anr. (2011) 4 SCC 36 [Indian Supreme Court]; Ajay Agarwal v. Union of India [Indian Supreme Court]; Wood pulp, Osakeyhtiö and ors. v. Commission of the European Communities ECR 5193 ILEC 035 (1988) [Court of Justice of the European Union]; Alaska v. Jack 125 P.3d 311 (2005) [Alaska Supreme Court]; Board of Trade v Owen (1957) AC 602 [U.K. Court of Appeals]; DPP v Stonehouse (1977) 2 All ER 909 [U.K. Court of Appeals]. 13

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium) ICJ Rep. 2002 3 [Joint Separate Opinion of Judges Higgins, Buergenthal and Kooijmans]. 14

The Case of the S.S. “Lotus” (Turkey v. France) 1927 PCIJ Ser. A No. 10, 23.

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 (8th edn., 2012); W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 285 (2010); M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 40 (2011); C. Ryngaert, JURISDICTION IN INTERNATIONAL LAW, 49 (2nd edn., 2015); A. Cassese, THE OXFORD COMPANION TO INTERNATIONAL CRIMINAL JUSTICE, 402 (2009). 15

16

Director of Public Prosecutions v Doot UKHL [1973] 1 All ER 940; I. Bantekas, Criminal Jurisdiction of States under International Law, MAX PLANK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, ¶5 (2011); N. Boister, AN INTRODUCTION TO TRANSNATIONAL CRIMINAL LAW, 139 (2012); 17

¶6, The Problem.

18

¶¶7-8, The Problem.

19

Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06, Judgement, ¶618 (2012).

20

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 217, 229 (2014); A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable on Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411, 423 (2014); M.A. Drumbl, Child Pirates: Rehabilitation, Reintegration and Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 235, 251 (2014); H.R. Williamson, New Thinking in the Fight Against Marine Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 335, 350 (2014); S. Whitman et al, CHILDREN AND YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND THE WAY FORWARD, 43 (2012); D. Gaswanga, Does

26    

began in Tyvosh and Yunkel, it continued on Porvosian vessels. Consequently, by virtue of the objective territorial principle, it is deemed to have occurred on Porvosian territory and the ICC can exercise jurisdiction over it. B.  

THE CONSENT OF THE JUVENILES’ PARENTS DOES NOT PRECLUDE THE CRIME OF ENSLAVEMENT

7.   As argued above,21 the recruitment and use of juvenile pirates constitutes enslavement under Art.7(1)(c), ICC Statute, as it represents both a servile status and a form of trafficking. Prosecution submits that the consent of the juveniles’ parents to their piratical excursions in exchange for a percentage of piratical booty does not preclude this crime of enslavement. The Supplementary Convention on the Abolition of Slavery specifically states that the delivery of a child for exploitation ‘by either or both of his natural parents…to another person, whether for reward or not’ constitutes enslavement, thus disregarding any exculpatory role of parental consent.22 Similarly, the Palermo Protocol considers the recruitment of children for exploitation to be trafficking, and consequently enslavement, irrespective of whether parental consent has been granted.23 In fact, while the Protocol considers consent to be exculpatory in the trafficking of adults, it purposely avoids the same for child trafficking.24 The Protocol’s travaux préparatoires indicate that this was done because delegations did not wish parents to consent to the exploitation of their children.25

                                                                                                            the ICC Have Jurisdiction over the Recruitment and Use of Child Pirates?, 19 ILSA J. Int'l & Comp. L. 277, 290 (2013). 21

See Argument I(A)(i).

22

Art.1(d), SUPPLEMENTARY CONVENTION ON THE ABOLITION OF SLAVERY, THE SLAVE TRADE, AND INSTITUTIONS AND PRACTICES SIMILAR TO SLAVERY, 226 U.N.T.S. 3 (April 30, 1957). 23

Art.3(c), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME, U.N. Doc. No. A/55/383 (November 15, 2000). 24

Arts.3(a) & (c), PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME, U.N. Doc. No. A/55/383 (November 15, 2000). 25

United Nations Office on Drugs and Crime, TRAVAUX PRÉPARATOIRES OF THE NEGOTIATIONS FOR THE ELABORATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS THERETO, 375 (2006).

27    

8.   Moreover, it is widely accepted that parental consent does not preclude the crimes of trafficking and enslavement.26 In fact, in the Lubanga decision, this Court noted that while consent to a child’s recruitment ‘may be taken into consideration by the Chamber at the sentencing or reparations phase … [such consent] does not provide an accused with a valid defence’.27 Similarly, the SCSL’s decision in Prosecutor v. Fofana refused to attribute any exculpatory role to consent for the crime of recruiting child soldiers.28 Hence, the consent of the juvenile pirates’ parents does not preclude OSTY’s crime of enslavement. 9.   Additionally, even if this Court were to consider parental consent exculpatory, Prosecution submits that this would only be the case if such consent was freely given and informed.29 Parental consent to juvenile piracy is very rarely of this nature.30 The facts do not specify the nature of parental consent in the present case.31 This Court has observed that when faced with such factual ambiguity, an investigation is to be permitted.32 Hence, Prosecution submits that the authorization of investigation should be granted, notwithstanding the parental consent to the acts of juvenile piracy.

                                                                                                            26

United States Department of State, TRAFFICKING IN PERSONS REPORT, 7 (2009); UNICEF, ESSENTIAL INFORMATION ABOUT CHILD TRAFFICKING, 14 (2010); O. Ebbe & D.K. Das, GLOBAL TRAFFICKING IN WOMEN AND CHILDREN, 8 (2007); O. Agbu, CHILDREN AND YOUTH IN THE LABOUR PROCESS IN AFRICA, 35 (2009); United Nations Office on Drugs and Crime, TOOLKIT TO COMBAT TRAFFICKING IN PERSONS, 6 (2010); Art.2, EU DIRECTIVE ON PREVENTING AND COMBATING TRAFFICKING IN HUMAN BEINGS AND PROTECTING ITS VICTIMS, 2011/36/EU. 27

Prosecutor v. Thomas Lubanga, Case No.ICC-01/04-01/06, Judgement, ¶617 (2012).

28

Prosecutor v. Fofana, Case No. SCSL-04-14-T-796, Trial Chamber Judgment, ¶192 (October 9, 2007).

29

Arts.3(a)-(c), OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT, U.N. Doc. No. A/RES/54/263 (May 25, 2000); W, X, Y & Z v. The United Kingdom, Appl. No. 3435-3438/67 (ECHR), Decision of 19 July 1968, ¶20. 30

S.L. Whitman, Children and Maritime Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 217, 229 (2014); A. Kearny & N. Nasrallah, Talking Foreign Policy: A Roundtable on Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 411, 423 (2014); M.A. Drumbl, Child Pirates: Rehabilitation, Reintegration and Accountability, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 235, 251 (2014); H.R. Williamson, New Thinking in the Fight Against Marine Piracy, 46(1) CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 335, 350 (2014); S. Whitman et al, CHILDREN AND YOUTH IN MARINE PIRACY: CAUSES, CONSEQUENCES AND THE WAY FORWARD, 43 (2012). 31

¶7, The Problem.

32

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No.ICC-02/05-01/09, Judgment on the Appeal against the Decision on the Warrant of Arrest, ¶33 (February 3, 2010); Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation, ¶33 (March 31, 2010).

28    

C.   THE

NUMBER OF CHILD PIRATES SATISFIES REQUIREMENT’

ART.7’S

IMPLICIT

‘NUMEROSITY

10.  In order to constitute a crime against humanity, Art.7 requires an attack to be ‘widespread or systematic’. The ‘widespread’ nature of an attack is determined by examining a variety of factors, including the number of victims.33 However, as is evident from the language of the provision, and as observed by this Court34 and several others,35 the requirements of ‘widespread’ and ‘systematic’ are disjunctive under the ICC Statute. Consequently, if an attack is shown to be ‘systematic’, it would no longer be necessary to establish the numerosity requirement of a ‘widespread’ attack. In the present case, the systematic nature of OSTY’s attack, consisting of the recruitment and use of juvenile pirates, is an admitted fact.36 Hence, Prosecution submits that it is not necessary to satisfy the numerosity requirement to prove a crime against humanity. 11.  Yunkel may contend that Art.7(2)(a) defines an ‘attack’ as requiring ‘multiple commission of acts’, thereby introducing a mandatory numerosity requirement for the commission of crimes against humanity. However, the drafting history of Art.7 clearly indicates that this phrase was included in the definition of an ‘attack’ only ‘to exclude isolated incidents’ and that ‘anything more than one [act] could be multiple’, to satisfy this requirement.37 OSTY’s recruitment of juvenile pirates is certainly not an isolated act, and thereby meets the requirement of ‘multiple commission[s]’ as well. 12.  In any event, even if this Court were to find that Art.7 contains a mandatory numerosity requirement, Prosecution submits that OSTY’s attack would meet such a requirement.                                                                                                             33

Prosecutor v. Bashir, Case No. ICC-02/05-01/09, Decision on the Warrant of Arrest, ¶81; Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07, Decision on the Confirmation of the Charges, ¶¶394-397; Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision on the Charges, ¶83; International Law Commission, Commentary on Article 18(4) Draft Code, 2 YBILC 2, 15 (1996); Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. No. A/51/22, 21-24 (1996). 34

Situation in the Republic of Cote d’Ivoire, Case No.ICC-02/11-14, Decision on the Authorization of an Investigation, ¶¶52-54; Situation in the Republic of Kenya, Case No.ICC-01/09-19-Corr, Decision on the Authorization of an Investigation, ¶94. 35

W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 148 (2010); A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL.I, 356 (2002); G. Werle & F. Jessberger, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 339 (3rd edn., 2014); K. Ambos, TREATISE ON INTERNATIONAL CRIMINAL LAW, VOL.II, 61 (2014). 36

¶7, The Problem.

37

P. Hwang, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, 22(2) FORDH. INT’L L. J. 457, 498 & 502 (1998).

29    

Several decisions indicate that the presence of ‘hundreds of victims’ is sufficient to establish a crime against humanity.38 In the present case, at least a thousand juveniles were the victims of OSTY’s attack.39 An almost identical number of victims was considered sufficient by this Court, in the Kenya case, to authorize an investigation into crimes against humanity.40 Hence, Prosecution submits that the number of child pirates satisfies Art.7’s implicit numerosity requirement. D.   OSTY IS AN ENTITY THAT IS CAPABLE OF COMMITTING CRIMES AGAINST HUMANITY 13.  Art.7(2)(a) requires an attack to be ‘in furtherance of a State or organizational policy’ to constitute a crime against humanity. Yunkel contends that OSTY is neither a government nor a parastatal entity, and is therefore incapable of meeting this requirement. Prosecution submits that Yunkel’s objection is not a jurisdictional issue and cannot be raised at the pretrial stage [i]. In any event, OSTY fulfills the requirements of an ‘organization’ under Art.7(2)(a) [ii]. i.  

The interpretation and existence of an ‘organization’ under Art.7(2)(a) is not a jurisdictional question

14.  A Pre-Trial Chamber, when authorizing an investigation under Art.15 of the ICC Statute, is to limit itself to questions of jurisdiction and admissibility.41 In the cases of Prosecutor v. Ruto,42 as well as Prosecutor v. Muthauru,43 the Appeals Chamber of this Court has                                                                                                             38

Prosecutor v. Vasiljević, Case No. IT-98-32 (ICTY), Trial Judgement, ¶¶51, 56, 58; Prosecutor v. Stakić, Case No. IT-97-24 (ICTY), Trial Judgement, ¶629; Prosecutor v. Simić et al, Case No. IT-95-9-T (ICTY), Trial Judgement, ¶980; Prosecutor v. Perišić, Case No. IT-04-81 (ICTY), Trial Judgement, ¶549; Prosecutor v. Kordić & Čerkez, Case No. IT-95-14/2 (ICTY), Trial Judgement, ¶28; Prosecutor v. Galić, Case No. IT-98-29 (ICTY), Trial Judgement, ¶579; Prosecutor v. Đorđević, Case No. IT-05-87/1 (ICTY), Trial Judgement, ¶1597; Prosecutor v. Blaškić, Case No. IT-95-14 (ICTY), Trial Judgement, ¶507; Prosecutor v. Gatete, Case No. ICTR-2000-61-T, Trial Judgement, ¶633; Prosecutor v. Kajelijeli, Case No. ICTR -98-44A-T, Trial Judgment, ¶902; Prosecutor v. Munyakazi, Case No. ICTR-97-36A-T, Trial Judgment, ¶¶14 & 18; Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Trial Judgment, ¶837; Prosecutor v. Serugendo, Case No. ICTR-200584-T, Trial Judgment, ¶19. 39

¶7, The Problem.

40

Situation in the Republic of Kenya, Case No.ICC-01/09-19-Corr, Decision on the Authorization of an Investigation, ¶131. Art.15(4), ICC Statute; W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 257 (4th edn., 2011). 41

42

Prosecutor v. Ruto et al, Case No. ICC-01/09-01/11 OA3 OA4, Decision on the appeal against the decision of Pre-Trial Chamber II of 23 January 2012, ¶30. 43

Prosecutor v. Muthauru et al, Case No. ICC-01/09-02/11 OA 4, Decision on the appeal against the decision of Pre-Trial Chamber II of 23 January 2012, ¶36.

30    

observed that the interpretation of the term ‘organization’ under Art.7(2)(a), as well as the existence of such an ‘organization’ on facts, are not issues pertaining to subject-matter jurisdiction, but instead relate to the substantive merits of a case. Consequently, in both these cases, the Defence’s objections to the existence of an ‘organization’ were considered inadmissible at the pre-trial stage. Similarly, Prosecution submits that Yunkel’s objection, which is identical to the ones discussed above, cannot be entertained at this stage. ii.  

In any event, OSTY fulfills the requirements of an ‘organization’ under Art.7(2)(a)

15.  The term ‘organization’ under Art.7(2)(a) is not restricted to governmental or parastatal entities, as Yunkel contends, but also includes non-State actors under certain circumstances. This Court,44 and several others,45 have repeatedly observed that a non-State actor which possesses de facto control over territory and a capability to commit widespread or systematic attacks would satisfy the requirement of an ‘organization’. In the instant case, OSTY has de facto control over the territory of Tyvosh,46 as well as a capacity to commit a widespread or systematic attack.47 Similar entities, such as the FARC, Republika Srpska, the Palestinian Authority,48 the Islamic State,49 Al-Qaeda,50 and the Taliban51 have also been considered ‘organizations’ under Art.7(2)(a).

                                                                                                            44

Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07-717, Decision on the confirmation of charges, ¶396; Prosecutor v. Bemba, Case No. ICC-01/05-01/08-424, Decision on the Charges Against Jean-Pierre Bemba Gombo, ¶81; Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation, ¶93; Situation in the Republic of Cote d’Ivoire, Case No.ICC-02/11-14, Decision on the Authorization of an Investigation, ¶45. 45

Prosecutor v. Tadic, Case No. IT-94-1-T (ICTY), Judgement, ¶653; Prosecutor v. Blaskic, Case No. IT-9514-T (ICTY), Judgement, ¶204; O. Triffterer, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 236 (2008); W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 150 (2010); A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL.I, 356 (2002); K. Kittichaisaree, INTERNATIONAL CRIMINAL LAW, 98 (2001); D. Robinson, Defining 'Crimes Against Humanity' at the Rome Conference, 93 AJIL 43, 50 (1999). 46

¶4, The Problem.

47

See Argument I(C).

48

W.A. Schabas, State Policy as an Element of International Crimes, 98(3) JOURNAL OF CRIM. L. & CRIMINOLOGY 953, 972 (2008). 49

Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, U.N. Doc. No. A/HRC/30/48, ¶¶172 & 184 (2015). 50

W.A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, 26(4) FORDH. INT’L L. J. 907, 930 (2002). 51

Office of the Prosecutor, Report on the Preliminary Examination Activities, ¶¶37-38 (2013).

31    

16.  Yunkel may seek to rely on Prof. Bassiouni’s narrow reading of Art.7,52 to contend that the term ‘organization’ is only restricted to governmental organizations. However, such an interpretation would contradict the Elements of Crimes, which use the word ‘organization’ in opposition to the word ‘State’.53 Moreover, other opinions of Prof. Bassiouni admit to a wider reading of Art.7, to include non-State actors.54 Such a narrow interpretation has also been expressly rejected by this Court.55 Even J. Kaul’s dissenting opinion in the Kenya case does not support Yunkel’s submissions, as it admits that a non-State organization possessing State-like features would be sufficient to constitute an ‘organization’.56 As shown below,57 OSTY possesses such features. Hence, Prosecution submits that OSTY satisfies Art.7(2)(a)’s requirement of an ‘organization’. II.  

OSTY’S CROSS-BORDER CONTAMINATION OF PORVOS’S WATER SUPPLY CONSTITUTES A WAR CRIME UNDER ART.8(2)(b)(iv) OF THE ICC STATUTE

17.  Prosecution submits that OSTY’s cross-border contamination of Mirror Lake with Salmonella constitutes a war crime under Art.8(2)(b)(iv), ICC Statute. The conduct in question occurred on Porvosian territory [A], and took place in the course of and in furtherance of an international armed conflict [B]. The damage to the natural environment caused by the contamination was widespread, long-term and severe [C], and was excessive in relation to the concrete military advantage anticipated [D].

                                                                                                            52

M.C. Bassiouni, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT, VOL.I, 151-152 (2005). 53

Element 3 of Art.7, ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 5.

54

See M.C. Bassiouni, Crimes Against Humanity: The Case for a Specialized Convention, 9(4) WASHINGTON UNIV. GLOBAL STUDIES LAW REVIEW 575, 585 (2010); M.C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW, 275 (1999). 55

Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07-717, Decision on the confirmation of charges, ¶396; Prosecutor v. Bemba, Case No. ICC-01/05-01/08-424, Decision on the Charges Against Jean-Pierre Bemba Gombo, ¶81; Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation, ¶93; Situation in the Republic of Cote d’Ivoire, Case No.ICC-02/11-14, Decision on the Authorization of an Investigation, ¶45. 56

Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation (J.Kaul’s Dissenting Opinion), ¶51. 57

See Argument II(B)(i).

32    

A.   THE CONDUCT IN QUESTION OCCURRED ON PORVOSIAN TERRITORY 18.  Art.12(2)(a), ICC Statute states that the Court would have jurisdiction over a crime if ‘the State on the territory of which the conduct in question occurred’ is a party to the Statute. While Porvos is a party to the ICC Statute, Yunkel is not.58 Although OSTY’s actions occurred within Yunkel, Prosecution submits that they still constitute conduct within the territory of Porvos. 19.  As argued above,59 the widely accepted objective territorial principle deems any crime to fall within a State’s territorial jurisdiction if any constituent element of such crime, including its consequences, occurs on that State’s territory.60 In the instant case, ‘damage to the natural environment’ is a constituent element of the war crime under Art.8(2)(b)(iv).61 As such damage took place within Porvos,62 the crime is deemed to have occurred within Porvosian territory by the objective territorial principle. Consequently, this Court has jurisdiction over the crime. 20.  The term ‘crime’ ordinarily comprises of three distinct elements – conduct, consequences and circumstances.63 Art.12 states that the conduct in question must occur within the territory of a State party, and not the crime. Hence, Yunkel may contend that this phrasing denies the Court jurisdiction when only the consequences of such crime occur within a State party’s territory, and that the objective territorial principle is thereby implicitly excluded. However, Prosecution submits that, for the purposes of Art.12, the terms conduct and crime are synonymous. 21.  The ICC Statute uses the term ‘conduct’ in two distinct forms. The first is as a component of a crime, as indicated above. Such usage is found in Art.30. The second is to denote the entire set of facts concerning a crime, inclusive of its consequences, and can be found in                                                                                                             58

¶1, The Problem.

59

See Argument I(A)(ii).

60

I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 456 (8th edn., 2012).

61

Element 2 of Art.8(2)(b)(iv), ELEMENTS OF CRIMES OF THE INTERNATIONAL CRIMINAL COURT, ICC-ASP/1/3, 19. 62

¶9, The Problem.

63

M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 110 (2011).

33    

Arts.22(1), 20(1) & 20(3). Prosecution submits that Art.12 uses ‘conduct’ in the latter sense. This is because Part II of the Statute, which contains both Art.12 and Arts.20(1) & 20(3), was drafted together, whereas Part III, which contains Art.30, was drafted separately.64 The Appeals Chamber, in the Congo case,65 ruled that any provision of the Statute must be interpreted in light of the section of the Statute within which it occurs, and which it was drafted with. Moreover, in the Katanga Confirmation decision, this Court affirmed that such interpretation must take place by excluding unrelated provisions of the Statute, whose ‘application would engender an asystematic opinio juris’.66 Hence, Prosecution submits that the term ‘conduct’ in Art.12 must be interpreted uniformly with Arts.20(1) & 20(3), with which it was drafted, and not in line with Art.30, which was enacted independently and constitutes an unrelated provision. 22.  This Court has, on multiple occasions, interpreted the term ‘conduct’ in Art.12 as synonymous with ‘crime’.67 The deliberations of the Assembly of States Parties’ Working Group on the Crime of Aggression also indicate that this was the intended meaning of ‘conduct’ in Art.12.68 Such an interpretation is also necessary to give effect to the object and purpose of the ICC Statute, as mandated by Art.31, VCLT. The Preamble to the Statute states that ‘the most serious crimes…must not go unpunished’, and that the Statute intends to ‘put an end to impunity’. Given the availability of weapons that possess the capacity to travel large distances, and have consequences across State borders, it is imperative that the objective territorial principle be applied under the ICC Statute to ensure the effective deterrence of war crimes.69 Hence, Prosecution submits that OSTY’s actions constitute ‘conduct’ within the territory of Porvos.                                                                                                            

O. Triffterer, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 555 (2nd edn., 2008); M.C. Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW, 504 (2003). 
 64

65

Situation in Democratic Republic of Congo, Case No.ICC-01/04, Judgment on the Prosecutor’s Application for Extraordinary Review, ¶33 (July 13, 2006). 66

Prosecutor v. Katanga, Case No.ICC-01/04-01/07-717, Decision on the Confirmation of Charges, ¶481. 


67

Prosecutor v. Mathieu Ngudjolo Chui, Case No.ICC-01/04-01/07-262, Decision on the Evidence and Information Provided for the Issuance of a Warrant of Arrest, ¶14; Situation in the Republic of Cote d’Ivoire, Case No.ICC-02/11-14, Decision on the Authorization of an Investigation, ¶187; Situation in the Republic of Kenya, Case No.ICC-01/09-19-Corr, Decision on the Authorization of an Investigation, ¶175. 68

Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, ICCASP/7/SWGCA/2, ¶38.
 69

M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 114 (2011).

34    

B.  

THE CONTAMINATION TOOK PLACE IN THE COURSE OF AND IN FURTHERANCE OF AN INTERNATIONAL ARMED CONFLICT 


23.  An international armed conflict exists ‘whenever there is a resort to armed force between States’.70 OSTY contaminated Mirror Lake as a response to Porvos’s aid shipments to Quirth. Prosecution submits that this contamination took place in the context of an international armed conflict with Porvos because OSTY has acquired statehood [i], or, alternatively, because OSTY’s actions can be attributed to Yunkel [ii]. i.  

OSTY meets the criteria to acquire statehood

24.  The four criteria that are necessary to acquire statehood under customary international law are: (a) a permanent population; (b) a defined territory; (c) an effective government; and (d) independence.71 Prosecution submits that OSTY possesses each of these criteria, and, as a consequence, has acquired statehood. 25.  Following attacks in January 2014, OSTY gained control over the entire area of Tyvosh, excluding Quirth, thereby obtaining a defined territory.72 This territory possesses a permanent population.73 Thus, it fulfills the first two requirements stipulated above. The third requirement, an effective government, is defined as the ability of an entity to administer a territory to the exclusion of all others.74 International law lays down no specific requirements regarding the nature and extent of such government.75 Hence OSTY’s continuing control and administration of its territory for over two years76 is sufficient to indicate an effective government. Finally, OSTY also possesses independence, as all major political and military decisions are made by Lance Raider, without any evidence of external

                                                                                                            70

Prosecutor v. Dusko Tadić, Case No.IT-94-1 (ICTY), Decision on the Defence Motion on Jurisdiction, ¶70.

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 37 (2nd edn., 2007); I. Brownlie, PRINCIPLES th OF PUBLIC INTERNATIONAL LAW, 127 (8 edn., 2012); D. Raic, STATEHOOD AND THE LAW OF SELFDETERMINATION, 58 (2002). 71

72

¶4, The Problem.

73

¶1, The Problem.

74

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 59 (2nd edn., 2007).

75

J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 59 (2nd edn., 2007).

76

¶¶4-5, The Problem.

35    

influence or control.77 Hence, OSTY satisfies each of the four criteria stipulated above and, consequently, has acquired statehood. 26.  Yunkel may contend that the acquisition of territory by OSTY took place through the use of force, which would render its actions illegal. Nonetheless, since ‘legality of creation’ is not a criterion for statehood,78 such use of force would not preclude OSTY from becoming a state. It would only imply that OSTY must bear responsibility for such illegality as a newly formed State, in accordance with Art.10(2), ASR. Further, the absence of international recognition of OSTY is also not a bar to statehood, since recognition is merely declaratory, and not constitutive of statehood.79 It is for these reasons that jurists have acknowledged that the Islamic State, a terrorist organization with continuing control over territory, may be considered a State.80 Hence, Prosecution submits that OSTY has acquired statehood. ii.  

OSTY’s actions can be attributed to Yunkel

27.  The rules for attribution of conduct to a particular State are not contained in the ICC Statute, hence the general rules of State responsibility can be relied on.81 According to such rules, a State may be responsible for the conduct of private parties if it fails to take necessary measures to prevent such conduct.82 This ‘due diligence’ obligation requires States to take                                                                                                             77

¶3, The Problem.

78

Talmon, The Constitutive versus the Declaratory Theory of Recognition: Tertium Non Datur?, 75 BYIL 101, 134 (2004); M. Kohen, SECESSION: INTERNATIONAL LAW PERSPECTIVES, 470 (2006); E. Milano, UNLAWFUL TERRITORIAL SITUATIONS IN INTERNATIONAL LAW 136 (2006); Art.1, MONTEVIDEO CONVENTION ON THE RIGHTS AND DUTIES OF STATES, 165 LNTS 19 (1933); Opinion No.1 (Conference on Yugoslavia, Arbitration Commission) 3 EJIL 1 (1992). J. Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, 37 (2nd edn., 2007); I. Brownlie, PRINCIPLES th OF PUBLIC INTERNATIONAL LAW, 127 (8 edn., 2012); D. Raic, STATEHOOD AND THE LAW OF SELFDETERMINATION, 58 (2002). 79

80

A. Coleman, The Islamic State and International Law: An Ideological Rollercoaster, 5(2) JOURNAL OF THE PHILOSOPHY OF INTERNATIONAL LAW 75, 80 (2014); C.E. Bellew, Secession in International Law: Could ISIS Become a Legally Recognized State?, 42 OHIO N.U.L. Rev. 239, 254 (2015); A. Fenton & D. Price, Breaking ISIS: Indonesia’s Legal Position on the ‘Foreign Terrorist Fighters’ Threat, 16(1) AUSTRALIAN JOURNAL OF ASIAN LAW 2, 17 (2015); Z. Yihdego, The Islamic ‘State’ Challenge: Defining the Actor, E-INTERNATIONAL RELATIONS (24 June, 2015). 81

Prosecutor v. Dusko Tadić, Case No.IT-94-1-A (ICTY), Appeals Chamber Judgement, ¶¶98, 105.

82

Commentary to the Articles on State Responsibility for Internationally Wrongful Acts, U.N. Doc. A/56/83, 39 (2001); R. Barnbridge, State’s Due Diligence Obligations with Regard to International Non-State Terrorist Organisations Post-11 September 2011: The Heavy Burden that States Must Bear, 16 IRISH STUD. IN INT’L AFFAIRS 103, 107 (2005).

36    

all possible measures to prevent harm to other States from an activity committed on their territory.83 The extent of vigilance required by this obligation varies according to the facts and circumstances of each case.84 28.  International law imposes a very high standard of vigilance with respect to international terrorism.85 The obligations imposed upon States include prevention of financing of terrorist activities by freezing funds and other financial assets,86 investigating and prosecuting persons engaged in terrorist activities,87 preventing the use of flag vessels and aircrafts for terrorist purposes,88 and preventing the direct or indirect supply of arms and ammunition.89 In the present case, Yunkel did not take any steps to prevent Lance Raider from using his inheritance to finance OSTY’s terrorist activities.90 Further, Yunkel has not instituted criminal proceedings against the members of OSTY.91 In June 2014, Yunkel took no steps to prevent the use of two dozen Yunkel-flagged vessels as pirate ships.92 Further,

                                                                                                            83

United States Diplomatic and Consular Staff in Tehran (Hostages) (United States v. Iran), ICJ Rep 3, 32-33 (1980); Corfu Channel (United Kingdom v Albania), Merits, ICJ Rep 4, 22 (1949); Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, 30 ILM 577, 588 (1990); R. Barnbridge, State’s Due Diligence Obligations with Regard to International Non-State Terrorist Organisations Post-11 September 2011: The Heavy Burden that States Must Bear, 16 IRISH STUD. IN INT’L AFFAIRS 103, 110 (2005). 84

Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, 30 ILM 577, 610 (1990); R. Barnbridge, State’s Due Diligence Obligations with Regard to International Non-State Terrorist Organisations Post-11 September 2011: The Heavy Burden that States Must Bear, 16 IRISH STUD. IN INT’L AFFAIRS 103, 110 (2005). 85

Friendly Relations Resolution, UNGA Res. 2625, UN Doc. A/8028, 1970, Para 1; R. Barnbridge, State’s Due Diligence Obligations with Regard to International Non-State Terrorist Organisations Post-11 September 2011: The Heavy Burden that States Must Bear, 16 IRISH STUD. IN INT’L AFFAIRS 103, 113 (2005); O. Schachter, The Lawful Use Of Force By A State Against Terrorists In Another Country , 19 ISRAEL YRBK ON HUMAN RIGHTS, 209, 212 (1989). 86

UNSC Resolution 1373, U.N. Doc. No. S/RES/1373 (2001), ¶¶1(a) and (c); UNSC Resolution 2133, U.N. Doc. No. S/RES/2133 (2014), ¶2; UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015), ¶(2)(a); UNSC Resolution 2199, U.N. Doc. No. S/RES/2199/2015, ¶3. 87

UNSC Resolution 1373, U.N. Doc. No. S/RES/1373 (2001), ¶2(e); UNSC Resolution 1456, U.N. Doc. No. S/RES/1456 (2003), ¶3; UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015), ¶12; UNSC Resolution 2199, U.N. Doc. No. S/RES/2199/2015, ¶11. 88

UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015), ¶(2)(c); UNSC Resolution 2199, U.N. Doc. No. /RES/2199/2015, ¶24. 89

UNSC Resolution 1373, U.N. Doc. No. S/RES/1373 (2001), ¶3(a); UNSC Resolution 2253, U.N. Doc. No. S/RES/2253 (2015), ¶(2)(c); UNSC Resolution 2199, U.N. Doc. No. S/RES/2199/2015, ¶24. 90

¶¶3-4, The Problem.

91

¶2, The Problem.

92

¶6, The Problem.

37    

it did not take steps to prevent the transfer of weapons to OSTY militants.93 In fact, a 2014 UNHCHR Report stated that Yunkel possesses ‘a weak, corrupt government that for the past five years has been…unwilling to control’ the OSTY threat.94 When Lebanon displayed a similar unwillingness to control Hezbollah’s attacks against Israel, the UN Commission of Inquiry considered this sufficient to attribute Hezbollah’s actions to Lebanon and deem the conflict an international one.95 29.  Admittedly, Yunkel disputes the characterization of the UNHCHR Report. However, as this Court has repeatedly noted, the standard of proof to authorize an investigation under Art.15(3) of the ICC Statute ‘does not require that the conclusion reached on the facts be the only possible or reasonable one…it is sufficient at this stage to prove that there is a reasonable conclusion alongside others which can be supported on the basis of the evidence and information available’.96 The facts stipulated above, as well as the UNHCHR Report, indicate that Yunkel’s unwillingness to control OSTY is a ‘reasonable conclusion’. Hence, Prosecution submits that Yunkel has failed to comply with its due-diligence obligations. Consequently, OSTY’s actions can be attributed to Yunkel, transforming the conflict with Porvos into an international armed conflict. C.   THE

DAMAGE CAUSED BY THE CONTAMINATION IS WIDESPREAD, LONG-TERM AND SEVERE

30.  In order to constitute a war crime, Art.8(2)(b)(iv) of the ICC Statute requires an attack to cause ‘widespread, long-term and severe damage’ to the natural environment. Although the ICC Statute does not define ‘widespread, long-term and severe damage’, the identical terms have also been used in the ENMOD Convention and Additional Protocol I to the Geneva Convention. According to the ENMOD Convention, ‘widespread’ encompasses an area on the ‘scale of several hundred square kilometers’; ‘long-lasting’ indicates ‘a period of months or approximately a season’; and ‘severe’ involves ‘serious or significant

                                                                                                            93

¶4, The Problem.

94

¶2, The Problem.

95

Report of the Commission of Inquiry on Lebanon, ¶¶50-62, U.N. Doc. No. A/HRC/3/2 (2006).

96

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No.ICC-02/05-01/09, Judgment on the Appeal against the Decision on the Warrant of Arrest, ¶33 (February 3, 2010); Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an Investigation, ¶33 (March 31, 2010).

38    

disruption or harm to human life, natural and economic resources or other assets’.97 The Additional Protocol, on the other hand, fails to define these terms. As a consequence, jurists have opined that the Additional Protocol has adopted the ENMOD definition by default.98 Indeed, this is the interpretation given to the Protocol by the military manuals of numerous States,99 such as the USA,100 Israel, South Korea, New Zealand and Indonesia.101 Moreover, the Guidelines on the Protection of the Environment in Times of Armed Conflict, adopted by the General Assembly, also use the ENMOD definition for the three criteria.102 Due to the extensive acceptance of this definition, Prosecution submits that it should be applied to Art.8(2)(b)(iv). 31.  Yunkel may argue that the Additional Protocol adopts a higher threshold for ‘widespread, long term and severe damage’, which should be applied under Art.8(2)(b)(iv). Indeed, some jurists have argued that the Protocol defines ‘widespread’ as an area of several hundred square kilometers; ‘long-term’ as at least ten years; and ‘severe’ as damage that challenges the survival of the population.103 However, the United Nations Environment Programme has observed that this ‘stringent and imprecise threshold…is nearly impossible to achieve’.104 In fact, even when Iraq set fire to over 500 Kuwaiti oil wells, causing air and water pollution that extended over 1500 square miles, it was found that the Additional Protocol standard had not been satisfied.105 The damage caused by NATO’s bombing                                                                                                             97

Understandings, CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OF ENVIRONMENTAL MODIFICATION TECHNIQUES, U.N. Doc. No. A/RES/31/72 (1977). 98

C. Thomas, Advancing the Legal Protection of the Environment in Relation to Armed Conflict, 82 NORDIC J. INT’L. L. 83, 89 (2013); J. Wyatt, Law-making at the Intersection of International Environmental, Humanitarian and Criminal Law, 92 INT’L. REV. OF THE RED CROSS 593, 624 (2010); M. Halpern, Protecting Vulnerable Environments in Armed Conflict, 51 STANF. J. INT’L. L. 119, 136 (2015); K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 91 (2004). 99

J. Wyatt, Law-making at the Intersection of International Environmental, Humanitarian and Criminal Law, 92 INT’L. REV. OF THE RED CROSS 593, 624 (2010). 100

International and Operational Law Department, US Army, Operational Law Handbook (2007), 


101

R. Reyhani, Protection of the Environment During Armed Conflict, 14 MO. ENVTL. L. & POL’Y. REV. 323, 326 (2007). 102

Guidelines on the Protection of the Environment in Times of Armed Conflict, U.N. Doc. No. A/RES/47/37 (1992). 103

See: K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 91-95 (2004).

104

United Nations Environment Programme, PROTECTING THE ENVIRONMENT DURING ARMED CONFLICT, 51 (2009). 105

A. Clapham et al, THE OXFORD HANDBOOK OF INTERNATIONAL LAW IN ARMED CONFLICT, 480 (2014).

39    

campaign in Yugoslavia could also not be prosecuted because it failed to meet the Additional Protocol standard.106 Therefore, the lower threshold of the ENMOD Convention is better suited to accomplish the objectives of the ICC Statute.107 32.  Prosecution further submits that OSTY’s contamination of rivers with Salmonella meets the ENMOD standard of ‘widespread, long term and severe damage’. When pollutants are discharged into mobile water bodies, such as underground water systems or rivers, the pollutants contaminate not only the entire water body, but also the surrounding vegetation and, consequentially, the populations that depend on such vegetation and water.108 Hence, Prof. Hulme has opined that the contamination of such mobile bodies, as done by OSTY, must necessarily meet the ‘widespread’ threshold, as the resulting damage would always extend over several hundred square kilometers.109 Moreover, since the Salmonella bacterium survives in water for over four months,110 the damage caused by OSTY’s contamination is also ‘long term’. Finally, the Salmonella contaminated Mirror Lake, on which half the population of Porvos depends for its water supply.111 It also induced an outbreak of Salmonella-caused illness, which resulted in 3,000 hospital visits and 50 deaths.112 Therefore, Prosecution submits that the contamination caused ‘serious or                                                                                                             106

Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, ¶17 (2000). 107

M. Bothe, The Protection of the Civilian Population and NATO Bombing on Yugoslavia, 12(3) EJIL 531 (2001); P. Gleick, Water and Conflict: Fresh Water Resources and International Security, 18(1) INTERNATIONAL SECURITY 79 (1993); M. Drumbl, Waging War Against the World: The Need to Move from War Crimes to Environmental Crimes, 22 FORDHAM INT’L. L. J. 122 (1999); N. Popovic, Humanitarian Law, Protection of the Environment and Human Rights, 8 GEO. INT'L ENVTL. L. REV. 67 (1996); R. Reyhani, Protection of the Environment During Armed Conflict, 14 MO. ENVTL. L. & POL’Y. REV. 323 (2007); J. Lawrence & K. Heller, The Limits of Art.8(2)(b)(iv) of the Rome Statute, 20 GEO. INT'L ENVTL. L. REV. 61 (2008); C. Thomas, Advancing the Legal Protection of the Environment in Relation to Armed Conflict, 82 NORDIC J. INT’L. L. 83, 89 (2013); M. Halpern, Protecting Vulnerable Environments in Armed Conflict, 51 STANF. J. INT’L. L. 119, 136 (2015); R. Gilman, Expanding Environmental Justice After War, 22 COLO. J. INT'L ENVTL. L. & POL'Y 447 (2011); D. Fleck, The Protection of the Environment in Armed Conflict, 82 NORDIC J. INT'L L. 7 (2013). 108

K. Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 93-94 (2004).

109

Id.

110

B.C. Moore et al, Survival of Salmonella Enterica in Freshwater, 69(8) APPLIED ENVIR. MICROB. 4556 (2003); C.S. Jacobsen, Soil Survival of Salmonella and Transfer to Freshwater, 45(2) FOOD RESEARCH INTERNATIONAL 557 (2012); R.L. Lawton & E.V. Morse, Salmonella Survival in Freshwater, 15(4) JOURNAL OF ENVIRONMENTAL SCIENCE AND HEALTH 339 (2008). 111

¶9, The Problem.

112

¶9, The Problem.

40    

significant disruption…to human life’ and was ‘severe’. Thus, OSTY’s contamination caused ‘widespread, long term and severe damage’. D.   THE

DAMAGE WAS EXCESSIVE IN RELATION TO THE CONCRETE MILITARY ADVANTAGE ANTICIPATED

33.  Article 8(2)(b)(iv) of the ICC Statute embodies the proportionality test, which requires damage to the natural environment to ‘be clearly excessive in relation to the concrete and direct overall military advantage anticipated’. Prosecution submits that this proportionality test must be applied in conjunction with fundamental principles of humanitarian law, which OSTY’s attack contravenes [i]. In any event, the military advantage anticipated by OSTY was not ‘concrete and direct’ [ii]. i.  

OSTY’s attack contravenes fundamental principles of humanitarian law

34.  Art.8(2)(b)(iv) has been adopted from Arts.51(5)(b) & 57(2)(a)(iii) of Additional Protocol I, with certain minor modifications.113 It adds the term ‘overall’ before ‘concrete and direct military advantage’ and the term ‘clearly’ before ‘excessive’. However, it has been clarified that these changes do not alter the proportionality principle as embodied in the Protocol.114 Consequently, the proportionality test under the ICC Statute is identical to that under the Protocol. 35.  The ICRC Commentary to the Protocol states that the fundamental principles of humanitarian law are implicit within the proportionality test, and that an attack cannot be proportionate if it contravenes these principles.115 The principles of humanity and distinction are both fundamental principles of humanitarian law.116 The principle of humanity prohibits attacks that are directed at civilians or civilian objects, or whose primary

                                                                                                            113

Arts.51(5)(b) & 57(2)(a)(iii), ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION 16 ILM 1391 (1977); A. Cassese et al, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 398 (2002). 114

W. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 230 (2010); International Committee of the Red Cross Statement of 8 July 1998 Relating to the Bureau Discussion Paper in Document A/CONF.183/C.1 /L.53, U.N. Doc. No. A/CONF.183/INF/10 (1998). 115

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, ¶2207 (2004); M. Sassoli, Legitimate Targets of Attacks under International Humanitarian Law, Background Paper, HARV. PROG. ON HUMANITARIAN POLICY AND CONFLICT RESEARCH, 1 (2003). 116

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, ¶1923 (2004); J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of War, 15 FLA. J. INT’L L. 481, 492 (2002-2003).

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purpose is to terrorize civilians.117 The principle of distinction requires an attack to clearly differentiate between military and civilian targets.118 Prosecution submits that these principles must also be read into Art.8(2)(b)(iv). 36.  The inclusion of these principles within the proportionality test led Prof. Cohan to state that ‘it is impermissible under any circumstances…[to] poison a population's water…no matter how beneficial a military advantage might be gained by the action’.119 Identical observations have also been made in the military manuals of numerous States.120 In the present case, OSTY contaminated the water supply of half the Porvosian population to prevent Porvos from delivering aid to Quirth. Irrespective of the gravity of the damage, this act of targeting civilians violates the principles of humanity and discrimination. Consequently, OSTY’s actions cannot satisfy the proportionality test under Article 8(2)(b)(iv). ii.  

In any event, the military advantage anticipated by OSTY is not significant enough

37.  To satisfy the test of proportionality, Art.8(2)(b)(iv) requires an attack to produce a ‘concrete and direct’ advantage. This phrase indicates that an anticipated advantage must be both substantial and imminent.121 In the instant case, the contamination of Mirror Lake was done with the objective of ending the siege of Quirth. However, as such an outcome would not occur in the ‘proximate short term’, it cannot be considered a direct military advantage.122 Moreover, the action was unable to end the siege of Quirth, as other States                                                                                                             117

Art.51(2), Additional Protocol I; J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of War, 15 FLA. J. INT’L L. 481, 496 (2002-2003). 118

Art.51(2), Additional Protocol I; J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of War, 15 FLA. J. INT’L L. 481, 495 (2002-2003); International Humanitarian Law and The Challenges Of Contemporary Armed Conflicts, REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS, 03/IC/09, 10 (2003). 119

J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of War, 15 FLA. J. INT’L L. 481, 496 (2002-2003). 120

J. Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of War, 15 FLA. J. INT’L L. 481, 492 (2002-2003); United States of America, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, Section 8.1.2 (1997); United Kingdom, The Manual of the Law of Armed Conflict, Section 15.19 (2004); Australia, The Manual on the Law of Armed Conflict, Section 7.10 (2006). 121

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, ¶2209 (2004).

122

J. Pictet ed., COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, VOL. III, ¶2209 (2004); J. Dill, Applying the Principle of Proportionality in Combat Operations, Policy Briefing, OXFORD INSTITUTE OF ETHICS, LAW AND ARMED CONFLICT, 3 (2010).

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immediately began shipping aid to the city when Porvos ceased to do so.123 Since the provision of humanitarian aid in such scenarios is a common practice,124 Prosecution submits that this outcome was foreseeable. Consequently, the contamination of Mirror Lake was also unlikely to produce a definite or concrete military advantage. Hence the damage caused by OSTY’s attack does not satisfy the proportionality test under Art.8(2)(b)(iv). III.  

JUDGE HASTY SHOULD NOT BE DISQUALIFIED UNDER ARTS. 40 & 41 OF THE ICC STATUTE

38.  Yunkel has requested the disqualification of J.Hasty under Arts.40 & 41 of the ICC Statute, due to the opinions expressed by her in a publication. Prosecution submits that Yunkel has no locus standi to bring such proceedings of disqualification [A]. In any event, the standard for disqualification has not been met [B]. A.   YUNKEL HAS NO LOCUS STANDI TO INITIATE PROCEEDINGS OF DISQUALIFICATION. 39.  As per Art.41(2)(b) of the Statute, the right to request a judge’s disqualification is only granted to ‘the Prosecutor or the person being investigated or prosecuted’. Art.19(2) of the Statute indicates that a State challenging the Court’s jurisdiction, as Yunkel is, would not fall within this category. In Katanga,125 this Court ruled that the provisions of the ICC Statute pertaining to a judge’s disqualification must be interpreted strictly, considering the extraordinary nature of the remedy. The Court, in that case, denied the victims’ representatives’ request for disqualification precisely because they fell outside the scope of Art.41(2)(b). Prosecution submits that Yunkel must also be denied locus standi to request J.Hasty’s disqualification for identical reasons. B.   J.HASTY’S OPINION DOES NOT MEET THE STANDARD FOR DISQUALIFICATION 40.  There exists a strong presumption of impartiality in favor of a Judge.126 To rebut this presumption, it must be shown that an objective observer would apprehend definite bias on                                                                                                             123

¶9, The Problem.

124

The European Consensus on Humanitarian Aid, EUROPEAN COMMISSION, 5 (available at http://ec.europa.eu/echo/files/media/publications/consensus_en.pdf). 125

Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07, Decision on Disqualification of Judge Christine Van den Wyngaert, ¶45. 126

The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on Disqualification of Judge Sang-Hyun Song, ¶18; The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC-02/05-03/09, Decision on Disqualification of a Judge, ¶14.

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reading the impugned opinion.127 Prosecution submits that J.Hasty’s expressed opinion does not meet this standard, as it does not take a conclusive position on the issues in the present case. It merely proposes that piracy ‘may someday’ trigger this Court’s jurisdiction, and that the recruitment and use of child pirates ‘could be’ tried as a crime against humanity.128 Even the title of the book ‘Emerging Issues in International Criminal Justice’ is indicative of this inconclusive nature, as it suggests that the opinion was not expressed in relation to existing law. In Prosecutor v. Abdallah,129 this Court held that a previouslyexpressed, inconclusive legal opinion on the actions of AU and South Sudan would not require a judge’s disqualification from cases involving those parties. Similarly, in The Prosecutor v. Omar Hassan Ahmad Al Bashir, the Court ruled that a judge’s participation in a fact-finding mission to Darfur would not disqualify him from participating in cases regarding that situation in Darfur, because it did not indicate a definite bias.130 Hence, Prosecution submits that J.Hasty’s inconclusive opinion is insufficient to require her disqualification. 41.  In addition, to establish the bias of a Judge, an impugned opinion must also have a sufficient link with the case at hand.131 J.Hasty’s published opinion was specifically expressed in relation to the ‘scourge of Somalia[n] Piracy’,132 and makes no mention of the parties to the present case. There is nothing to indicate any factual similarity between these two instances of piracy. Hence, Prosecution submits that J.Hasty should not be disqualified.

 

                                                                                                            127

The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on Disqualification of Judge Sang-Hyun Song, ¶17; The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04- 01/06, Decision on Disqualification of a Judge, ¶9-10. 128

¶12, The Problem.

129

The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC02/05-03/09, Decision on Disqualification of a Judge, ¶9-10. 130

The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-76, Decision on the Request for Excusal of a Judge, ¶16. 131

The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC02/05-03/09, Decision on Disqualification of a Judge, ¶17. 132

¶12, The Problem.

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CONCLUDING SUBMISSIONS

Wherefore in light of the questions presented, arguments advanced and authorities cited, the Prosecution respectfully requests this Court to adjudge and declare that:

I.  

The recruitment and use of juvenile pirates by OSTY can be tried as a crime against humanity within the jurisdiction of the International Criminal Court under Article 7 of the ICC Statute

II.  

OSTY’s cross-border contamination of Porvos’s water supply can constitute the war crime under Article 8(2)(b)(iv) of the ICC Statute

III.  

J. Hasty should not be disqualified under Articles 40 and 41 of the ICC Statute

On Behalf of the Prosecution

Counsel for the Prosecution                                   45    

   

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