TEAM: 733

THE 2016 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT

COMPETITION

THE CASE CONCERNING THE FROST FILES

STATE OF AMESTONIA/THE FEDERAL REPUBLIC OF RIESLAND

SPRING TERM 2016

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE
THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

MEMORIAL FOR THE FEDERAL REPUBLIC OF RIESLAND

TABLE OF CONTENTS
INDEX OF AUTHORITIES....................................................................v
STATEMENT OF JURISDICTION...........xviii
QUESTIONS PRESENTED............................xix
STATEMENT OF FACTS..........xxiv
SUMMARY OF PLEADINGS............................xxv
PLEADINGS............... 1
1.

THE DOCUMENTS PUBLISHED ON THE WEBSITE OF THE AMES POST ARE INADMISSIBLE
AS EVIDENCE BEFORE THE COURT1

1.1 THE DOCUMENTS PUBLISHED ON THE WEBSITE OF THE AMES POST ARE INADMISSIBLE AS EVIDENCE
BEFORE THE COURT AS THE MANNER IN WHICH THEY WERE OBTAINED RENDERS THEM UNRELIABLE

2.

NOTHING CONTAINED IN
POST

THE DOCUMENTS PUBLISHED ON THE WEBSITE OF

THE AMES

EVIDENCES A BREACH OF INTERNATIONAL LAW AND/OR OBLIGATIONS BY

RIESLAND.5
2.1 THE VERISMO PROGRAM

IS IN ACCORDANCE WITH THE PROVISIONS OF THE

UNITED

NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)

3.

AS RIESLAND HAS NOT BREACHED ANY INTERNATIONAL LAW OR TREATY OBLIGATIONS,

AMESTONIA NOT IS ENTITLED TO AN ORDER DIRECTING THE IMMEDIATE CESSATION OF
THE PROGRAMS REFERRED TO IN THE DOCUMENTS PUBLISHED

THE AMES POST

WEBISITE WITH ASSURANCES OF NON-REPETITION..11

4.

AMESTONIAS

SEIZURE AND FORFEITURE OF THE

AND THE ARREST OF

MARGARET MAYER

VOR

STATION AND ITS EQUIPMENT,

AND THE TWO

VOR

EMPLOYEES VIOLATES

THE BROADCASTING TREATY AND ITS INTERNATIONAL LAW OBLIGATIONS..12

ii

4.1 AMESTONIAS ARREST OF MARGARET MAYER AND THE TWO VOR EMPLOYEES VIOLATES THE
BROADASTING TREATY AND ITS INTERNATIONAL LAW OBLIGATIONS
4.2 AMESTONIAS

SEIZURE AND FORFEITURE OF THE

VOR

STATION AND ITS EQUIPMENT,

VIOLATES THE BROADCASTING TREATY AND ITS INTERNATIONAL LAW OBLIGATIONS

5.

RIESLAND IS ENTITLED TO COMPENSATION FOR THE SEIZURE AND FORFEITURE OF THE

VOR STATION AND ITS EQUIPMENT, AND THE IMMEDIATE RELEASE OF ITS NATIONALS,
NAMELY MARGARET MAYER AND THE TWO VOR EMPLOYEES. 15

5.1 RIESLAND IS ENTITLED TO COMPENSATION FOR THE SEIZURE AND FORFEITURE OF THE VOR
STATION AND ITS EQUIPMENT

6.THAT THE DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM ACT DOES NOT VIOLATE
INTERNATIONAL LAW16

6.1 THAT RIESLANDS ACTS ARE VALIDLY JUSTIFIED AS A FORM OF SELF-DEFENSE.

6.1.1 THAT THERE WAS AN ARMED ATTACK
6.1.2 THAT AN ARMED ATTACK CAN BE PERPETRATED EVEN BY NON-STATE ACTORS AS
AUTONOMOUS ENTITIES.

6.1.3 THAT THE MEASURES EMPLOYED IN SELF DEFINES WERE VALIDLY EMPLOYED.
6.1.4 THE PRINCIPLE OF AUT DEDERE AUT JUDICARE APPLIES TO THE INSTANT CASE AND
UNIVERSAL JURISDICTION HERE IS TRIGGERED BY THE ACTS THAT WERE COMMITTED.

6.2 THE JOSEPH KAFKER

WAS

TREATED IN A MANNER CONSISTENT WITH INTERNATIONAL

LAW
6.2.1 AMESTONIAS CLAIM FOR RELEASE IS NOT WELL CONCEIVED
6.2.2 UNDER

THE PRINCIPLES OF

INTERNATIONAL HUMANITARIAN

LAW, THE

DETENTION OF

KAKFER IS NOT ILLEGITIMATE SINCE HE CAN VALIDLY BE TERMED AND

UNLAWFUL COMBATANT.

6.2.3 THAT UNLAWFUL COMBATANTS MAY BE DETAINED AND HELD INCOMMUNICADO.

iii

6.2.4. THE TREATMENT KAFKER WAS NOT CRUEL, INHUMAN, OR DEGRADING

6.3 THAT THE ADJUDGING OF KAFKERS ARREST BEFORE THE NATIONAL SECURITY TRIBUNAL
IS CONSISTENT WITH INTERNATIONAL LAW

6.3.1 THAT THE NATIONAL SECURITY TRIBUNALS JURISDICTION IS VALID UNDER SELFDEFENCE.

6.3.2 RIESLANDS

TREATMENT OF THE

KAFKER

DOES NOT WARRANT REMOVING THE

JURISDICTION OF THE NATIONAL SECURITY TRIBUNAL

ALTERNATIVELY, RIESLAND DEROGATED FROM ITS OBLIGATIONS UNDER THE INTERNATIONAL

COVENANT ON CIVIL AND POLITICAL RIGHTS
6.4.1 THE HIVE ATTACKS CONSTITUTED A PUBLIC EMERGENCY THAT THREATENED THE
LIFE OF THE NATION

6.4.2 THE RIESLANDS TREATMENT WAS STRICTLY REQUIRED BY THE EXIGENCIES OF THE
SITUATION

6.4.3 THAT RIESLAND GAVE SUFFICIENT NOTIFICATION OF ITS DEROGATION

7. THAT AMESTONIA IS

NOT ENTITLED TO

KAFKERS IMMEDIATE RELEASE, THE DISCLOSURE

OF ALL THE INFORMATION WHICH FORMED THE BASIS OF HIS APPREHENSION, AND THE
PAYMENT OF COMPENSATION FOR HIS DETENTION.29

8. THAT

THE CYBER-ATTACKS AGAINST THE COMPUTER SYSTEMS OF

THE AMES POST

AND

CHESTER & WALSINGHAM ARE NOT ATTRIBUTABLE TO RIESLAND, AND DO NOT CONSTITUTE
AN

INTERNATIONALLY

WRONGFUL

ACT

FOR

WHICH

AMESTONIA

IS

ENTITLED

TO

COMPENSATION29

8.1 THAT THE CYBER-ATTACKS WERE NOT ATTRIBUTABLE TO RIESLAND.

PRAYER ..xxvii

iv

INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS

Fourth Geneva Convention 1949

24

International Covenant on Civil and Political Rights

Rome Statute of the International Criminal Court

3,15

Third Geneva Convention 1949

22

Vienna Convention on the Law of Treaties

Vienna Convention on the Law of Treaties

15, 16

Convention Against Torture and other Cruel Inhumane or 32

Degrading Treatment or Punishment 1984

U.N. RESOLUTIONS AND OTHER DOCUMENTS

Declaration on Principles in International Law, G.A. Res.

34

2625(XXV).
Declaration on Principles of International Law Concerning

24

Friendly Relations and Cooperation Among States in

Accordance with the Charter of the United Nations, G.A. Res.
2625(XXV), GAOR, 25th Sess., Supp.No. 28, at 121, U.N.
Doc.A/8082, 1970;
UN Basic Principles on Remedy and Reparation, paras 18-23;

26

Human Rights Committee, General Comment No 31;

Articles on State Responsibility, G.A. Res. 56/83, art.20, U.N.

32

GAOR, 56th Sess., Annex, Agenda Item 162 at 3, U.N.

Doc.A/RES/56/83 (2001);
G.A. Res. 38/7, U.N. GAOR, 38th Sess., Supp.No. 47, at 19,

22

U.N. Doc.A/RES/38/7 (1983);

G.A. Res. ES-6/2, U.N. GAOR, 6th Emerg.Sp.Sess., Supp.No.
1, at 2, U.N. Doc.A/RES/E-6/ (1980);

vi

35

OTHER INTERNATIONAL INSTRUMENTS AND MATERIALS

Committee against Torture, General Comment no 3, UN Doc

22

CAT/C/GC/3 (13 December 2012)

H.R. Comm., Concluding Observations on Syrian Arab

35

Republic, 6, U.N. Doc.CCPR/CO/71/SYR (2001); H.R.

Comm., Concluding Observations on Egypt, 6, U.N.
Doc.CCPR/CO/76/EGY (2002).
H.R. Comm., Concluding Observations on Syrian Arab

15

Republic, 6, U.N. Doc.CCPR/CO/71/SYR (2001); H.R.

Comm., Concluding Observations on Egypt, 6, U.N.
Doc.CCPR/CO/76/EGY (2002).
H.R. Comm., General Comment 20: Article 7, 4, U.N.
Doc.HRI/GEN/1/Rev.1 at 30 (1994).

15

H.R. Comm., General Comment 29: States of Emergency

18

(Article 4), 11, U.N. Doc.CCPR/C/21/Rev.1/Add.11 (2001).

H.R. Comm., General Comment 29: States of Emergency

34

(Article 4), 11, U.N. Doc.CCPR/C/21/Rev.1/Add.11 (2001).

H.R. Comm., General Comment 29: States of Emergency

17

(Article 4), 11, U.N. Doc.CCPR/C/21/Rev.1/Add.11 (2001).

UN Working Group on Arbitrary Detention Scope of Remedies 12,13
upon a Sucessful challenge to arbitrary detention (Global

vii

Consultation on the right to challenge detention, September

2014, Geneva)
UN Working Group on Arbitrary Detention Scope of Remedies 19
upon a Sucessful challenge to arbitrary detention (Global
Consultation on the right to challenge detention, September
2014, Geneva)

viii

STATUTES AND LEGISLATIONS

Broadcasting Act 1992

26

Terrorism Act 2003

23

ix

CASES

Al-Nashif v. Bulgaria, App.No. 50963/00 (unreported)

25,3

Alwyn V. Freeman, The International Responsibility of State for

20

Denial of Justice (London: Longmans, Green and Co. Ltd.,

1938)
Ambatielos case (Greece v. UK) (1956), XII R.I.A.A. 83

20

Attorney-General v. Eichmann, 36 I.L.R. 5

Avena & Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J.

5, 13

12, 3
Bangladesh/Myanmar, ITLOS Case No 16

12

Brannigan and McBride v. U.K. (1993), 258 E.C.H.R. 34;

26

Can Garca v. Ecuador 319/1988

12

Case Concerning Armed Activities on the Territory of the

14

Congo (Congo v. Uganda) (2006), 45 I.L.M. 271

Corfu Channel (UK vAlb), 1949 ICJ 4

15

Cyprus v. Turkey, App.No. 25781/94, 2001-IV Eur.Ct.H.R. 7

(2001).

El-Megreisi v Libyan Arab Jamahiriya, Communication no

23

440/1990 (United Nations 1994 CCPR/C/50/D/440/1990);

Embga Mekongo Louis v Cameroon, Communication 59/91,

25

decided 22 March 1995

Estrella v. Uruguay, Comm.74/80, U.N. Doc.CCPR/C/OP/2 23
(1990).

Factory at Chorzw (Germ. v. Pol.) (Claim for Indemnity)

23.24

(Jurisdiction), 1927 P.C.I.J

Findlay v. United Kingdom, App.No. 2107/93, 24 E.H.R.R. 221

Hamilton v. Kentucky Distillers & Warehouse Co., 251 U.S.

24

146 (1919).
Incal v. Turkey, App.No. 22678/93, 449 E.H.R.R. 316, 323

13

(2000);
Interhandel case (Switzerland v. USA), [1959] I.C.J. Rep. 6

20

Ireland v. United Kingdom (1978), 25 E.C.H.R. (Ser. A) 1

24, 25, 26, 27

xi

Island of Palmas (Netherlands v USA) 2 R.I.A.A. 829, 838 27

{PCIJ 1928)

Jean-Basco Barayagwiza v. The Prosecutor, ICTR-97-19-AR72 23

Jorge Landinelli Silva v. Uruguay, Communication No. R.8/34

26

(30 May 1978), UN GAOR, 36th Sess., Supp. No. 40, UN Doc.
A/36/40 (1981)
Kajelijeli v. The Prosecutor, ICTR-98-44A-A

23

Kelly v. Jamaica, Comm.235/87, U.N.

22

Doc.CCPR/C/41/D/253/1987 (1991);
LaGrand Case (Germ. v. U.S.), Provisional Measures Order,

1999 I.C.J. 9
Laureano v. Peru, Comm.540/1993, U.N.

Doc.CCPR/C/56/D/540/1993 (1996);
Lawless v. Ireland (1961), 3 E.C.H.R. 25

24, 25, 26,27

Loayza Tamayo v. Peru, 1997 Inter-Am.Ct. H.R. (ser.C) No. 33,

32, 26

at 57 (1997).
Lopez

Burgos

v.

Uruguay,

Comm.52/1979,

xii

U.N. 19

Doc.CCPR/C/13/D/1979 (1981)

Mavrommatis Jerusalem Concessions (Greece v. U.K.),

12

Military and Paramilitary Activities, 1986 ICJ 14

33

Oviedo v. Paraguay, Case 12.013, Report No.88/99

31

Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania)

20

(1939), P.C.I.J. (Ser. A/B)

Peart v. Jamaica, Comm. Nos.464/1991 & 482/1991, U.N. 16
Doc.CCPR/C/54/D/464/1991 & 482/1991 (1995).

Polay Campos, Comm.577/1994, U.N.

23

Doc.CCPR/C/61/D/577/1994 (1998).

Prosecutor v. Delali, Case No.IT-96-21-T, 439 (1998).

23

Prosecutor v. Nikolic, IT-94-2-AR73

23

Prosecutor vs. Slavko Dokmanovic, IT-95-13a-PT

23

Regina v. Horseferry Road Magistrates Court, ex parte

Bennett, [1994] 1 A.C. 42.

Report of the European Commission on Human Rights (Ireland

xiii

24, 25

v. U.K.) (1978), 23-1 E.C.H.R. (Ser. B) 8

See Fort Frances Pulp and Power [Paper] Co. v. Manitoba

24

Free Press Co., [1923] A.C. 695 at 706;

Shaw v. Jamaica, Comm.704/1996, U.N.

Doc.CCPR/C/62/D/704/1996 (1998).
Spanish Zone of Morocco, 2 RIAA 615, 641

Tomasi v. France, App.No. 12850/87, 15 E.H.R.R. 1 (1992).

17

Union Bridge Company (1924) 6 RIAA 138

United States Diplomatic and Consular Staff in Tehran (US v

32

Iran), 1980 ICJ 3, 9-10

United States ex rel. Lujan v. Gengler, 510 F. 2d 62 (2d. Cir.

23

1975)

United States v. Alvarez-Machain, 504 U.S. 655. 902 (1992);

31

Velasquez Rodriguez case, Inter-Am Ct.H.R (29 July 1988);

21

Velez Loor v Panama

25

Weber & Saravia v. Germany, 2006-XI Eur. Ct. H.R. 309

12

xiv

William Torres Ramirez v. Uruguay, Communication No.

4/1977 (13 February 1977), UN GAOR, Supp. No. 40, UN Doc.
A/35/40 (1980) 121

xv

26

BOOKS, ARTICLES, JOURNALS AND TREATISES

Bantekas & Nash, International Criminal Law 91 (2007).

12

Bassiouni & Wise, Aut Dedere Aut Judicare: The Duty To

12

Extradite Or Prosecute In International Law 3 (1995);

D.J. Harris, Cases And Materials On International Law 299

21

(2004
Duffy, The War On Terror And The Framework Of

21

International Law 100 (2005);

12
Ian Brownlie, Principles Of Public International Law (2003)
32
Ian Brownlie, Principles Of Public International Law (2003)
Kalliopi Koufa, Specific Human Rights Issues: New Priorities,

23

In Particular Terrorism, Additional Progress Report, 44, U.N.

Doc.E/CN.4/Sub.2/2003/WP.18 (2003).
Lori Damrosch, et al., International Law: Cases And Materials

23

1177 (2001).
24
Louis Henkin, International Law Cases And Materials (1993);
24
Louis Henkin, International Law Cases And Materials (1993);
11
Malcom N Shaw, International Law (2003);

xvi

23
Malcom N Shaw, International Law (2003);
1
Oscar Schacter, International Law in theory and pactice (1993);
Rosalyn Higgins, Problems and Process: International Law and

how we use it (1994).

Sarah Joseph Seeking Remedies For Torture Victims: A

Handbook on the Individual Complaints Procedures of The UN

Treaty Bodies 158 (2006).
Sarah Joseph, Et Al., The International Covenant On Civil And

Political Rights: Cases, Materials And Commentary 308 (2004).

Shaukat Qadir, The Concept of International Terrorism: An

Interim Study of South Asia in ROUND TABLE 333-39

(2001);
Thomas M. Franck, Preliminary Thoughts Towards an

International Convention on Terrorism, 68 A.J.I.L. 69 (1974).

W.M. Reisman, The Resistance in Afghanistan is Engaged in a
War of National Liberation, 81 A.J.I.L. 906 (1987);

xvii

STATEMENT OF JURISDICTION

The State of Amestonia and the Federal Republic of Riesland have submitted the present dispute
concerning the Frost Files, to the International Court of Justice by Special Agreement
(Compromis), dated 1 September 2015 pursuant to Article 40(1) of the Court's Statute. Both
parties have thus accepted the ad hoc jurisdiction of the Court in accordance with Article 36(1)
of the Court's Statute. Both parties shall accept the judgment of this Court as final and binding
and execute it in good faith in its entirety.

xviii

STATEMENT OF FACTS
Riesland and Amestonia are neighboring states, with the former being a developed nation
boasting one of the fasting growing free-market economies in the world, while the latter is a
developing country with a predominantly agrarian economy.
The Frost Files and the Verismo Program
On 16 December 2014, Frederico Frost, a Rieslandic national who is a former
intelligence analyst at the Bureau, met with lawyers from the firm Chester & Walsingham and
handed over a USB drive containing 10,000 documents labeled top secret, documents that he
had secretly downloaded from the Bureaus computers. On 18 December 2014, Frost,
accompanied by lawyers from Chester & Walsingham who were now representing him, handed
over a copy of the USB drive to two reporters from The Ames Post newspaper and asked them to
publish the contents on their website, which they duly did in January and February 2015.
One of the documents published on 23 January 2015, which was titled The Verisomo
Program, bore the signature of the Bureaus Director Tom Sivaneta and detailed an operation
overseen by him and other authorities in accordance with the structural safeguards set out in
Section 32 of the SSBA, whereby a pod was installed on an undersea fiber optic cable which
formed the backbone of Amestonias international internet and telecommunications traffic. 1.2
million gigabytes of data were collected through the pod which was placed on the part of the
cable in Rieslands exclusive economic zone, with the intelligence gathered as part of Verismo
being shared with Amestionian authorities on at least 50 separate occasions, though the source of
the information was never revealed to them. Amestonian officials always accepted the

xix

intelligence, and never challenged or otherwise demanded additional information as to the

nature, scope, and reach of the Verismo Program, until 2 February 2015.
The Actions of VoR and its Employees
Another agreement that was signed (on 4 March, 1992) and ratified by both nations was
the Treaty on The Establishment of Broadcasting Facilities (the Broadcasting Treaty)
pursuant to which each state was permitted to build, staff, and operate a television station in the
others territory. In accordance with the Broadcasting Treaty, Riesland established a new
division of the Riesland National Television Corporation, The Voice of Riesland (VoR), to
operate in Amestonia, with the inaugural program broadcast from its station in Amestonia on 22
December 1992. One of the most popular programs on VoR was the talk show Tea time with
Margaret hosted by Margaret Mayer, a Rieslandic national, who interviewed a number of
Amestonian politicians, public figures and businessman. Documents published on the website of
The Ames Post on 16 February 2015 claimed that Bureau engineers, who doubled as VoR
employees, participated in The Carmen Program, whereby they hacked into the phones of over
100 guests who visited the show by installing a malware program called Blaster which in turn
gave them remote access to these devices for intelligence collection.
Later that evening (16 February 2015), Amestonian police successfully obtained a
warrant from a judge to seize all assets and property of VoR pending an investigation into
whether criminal offenses had been committed, citing as probable cause the Carmen Program
documents published by The Ames Post. When the police reached the VoR premises in execution
of the warrant, they found the station abandoned, and they promptly catalogued the broadcasting
equipment as well other devices and documents before their removal. At 3:15 am on 17 February
2015, the commander of the police unit investigating VoR was granted a warrant for the arrest of
xx

Margaret Mayer and two other VoR employees who had been caught on a train that was bound
for Riesland. All three were charged with espionage and denied bail on the ground that they were
a flight-risk. On 22 April 2015, the Amestonian Ministry of Justice announced that the police
investigation into the items found at the VoR station premises had determined that a number of
them had been used for surveillance. The Ministry reported that it had obtained a forfeiture order
against the premises and all property found there on the basis that it was employed in criminal
activity.
The Detention of Joseph Kafker
Joseph Kafker, a 70 year old Amestonian politician was arrested at a law school in
Riesland on 7 March 2015 by the Rieslandic police for commiting offences under Rieslands
Terrorism Act and, three days later (10 March), was produced before the National Security
Tribunal.
Kafker was considered a high-level suspect by Riesland with ties to The Hive, a group of
environmentalists that was waging a concerted campaign against Rieslandic companies for
producing neuro-active insecticides (neonics) which were used by Amestonian farmers to
boost crop yield. Several violent actions were carried out, with warehouses in Amestonia being
set on fire causing extensive damage to the health of the local population in addition to an
estimated loss of 75 million euros, followed by threats to the trade and agriculture ministries in
both Riesland and Amestonia in the form of letters accompanied with white powder, that was
determined to be a non-toxic variant of a neonic, concealed in envelopes. Thanks to a tip-off
from the Bureau, Amestonian authorities were able to foil a potential attack by Amestonian
environmental activists who had been plotting to contaminate a large shipment of honey,
intended for consumption in Riesland, with a chemically-altered and toxic neonic which could
xxi

potentially cause serious bodily injury to anyone handling or inhaling it. The Attorney General of
Riesland refused to comment on the questions raised by the media linking Kafker to the attacks,
but he did confirm that Riesland was in possession of closed materials that directly link
Kafker to The Hives senior echelons.
Cyber-attacks on The Ames Post and Chester & Walsingham
On 22 March 2015, the computer networks and communications systems at both The
Ames Post and Chester & Walsingham were subject to a cyber-attack, with experts from the
Amestonian Institute of Technology tracing the source of the attacks to Rieslandic governmental
computer infrastructures. The damage from the attacks was an estimated 45-50 million euros,
with The Ames Post having to shut down operations for 3 months and court proceedings before
the Amestionian courts being delayed due to Chester & Walsinghams inability to accesss its
files. On 1 April 2015, the President of Amestionia denounced the attacks, placing the blame
squarely at the feet of Riesland, but on 5 April 2015 the Attorney General of Amestonia refused
to respond to these allegations.
International Adjudication
Riesland and Amestonia agreed to refer all matters in dispute to the International Court of
Justice, and in furtherance of this purpose drafted and signed a Special Agreement.
Relevant International Treaties
Amestonia and Riesland are both members of the United Nations, and are parties to the
Statute of the International Court of Justice; the Vienna Convention on the Law of Treaties; the
International Covenant on Civil and Political Rights; the International Covenant on Economic,
Social, and Cultural Rights; the Vienna Convention on Diplomatic Relations; the Vienna
xxii

Convention on Consular Relations; the International Convention for the Suppression of Terrorist
Bombings; and the International Convention for the Suppression of the Financing of Terrorism.

xxiii

QUESTIONS PRESENTED
I.

Whether the documents published on the website of The Ames Post are admissible as
evidence before the Court.

II.

Whether Rieslands mass electronic surveillance programs against Amestonian public

figures and nationals, revealed in the documents published on the website of The Ames
Post, violates international law.

III.

Whether Amestonia is entitled to an order directing the immediate cessation of the

programs referred to in the documents published on the website of The Ames Post with
assurances of non-repetition.

IV.

Whether Amestonias seizure and forfeiture of the VoR station and its equipment, and the
arrest of Margaret Mayer and the two VoR employees violates the Broadcasting Treaty
and its international law obligations.

V.

Whether Riesland is entitled to compensation for the seizure and forfeiture of the VoR
station and its equipment, and the immediate release of its nationals, namely Margaret
Mayer and the two VoR employees.

VI.

Whether the detention of Joseph Kafker under the Terrorism Act violates international
law.

VII.

Whether Amestonia is entitled to Kafkers immediate release, the disclosure of all the
information which formed the basis of his apprehension, and the payment of
compensation for his detention.

VIII.

Whether the cyber-attacks against the computer systems of The Ames Post and Chester &
Walsingham are attributable to Riesland, and constitute an internationally wrongful act
for which Amestonia is entitled to compensation.

xxiv

SUMMARY OF ARGUMENTS

PLEADING 1
The judicial trend internationally is towards not admitting leaked documents into evidence , the
reason being that the manner in which the documents were obtained renders them substantially
unreliable and reliance on the documents would cast serious doubt on the integrity of the
proceedings. Riesland wishes to neither confirm nor deny the authenticity and accuracy of the
documents published on the website of The Ames Post. These documents have simply been
obtained by Amestonian officials from the website of The Ames Post, and they have not brought
any persuasive evidence of their authenticity, accuracy or reliability. It is therefore submitted that
admission into evidence of the leaked documents should be denied.
PLEADING 2
Rieslands installation of the pod for the purposes of information collection does not violate the
UNCLOS in any manner. Riesland has not violated Article 17 of the ICCPR; since digital
communications technologies can be, and have been, used by individuals for criminal objectives
(including recruitment for and the financing and commission of terrorist acts), the lawful,
targeted surveillance of digital communication, constitutes a necessary and effective measure for
intelligence and/or law enforcement entities when conducted in compliance with international
and domestic law, which is what Riesland has done under Verismo.

xxv

PLEADING 3
Riesland has not violated either UNCLOS or the ICCPR or any other treaty obligation for that
matter in conducting its surveillance programs. There is therefore no question of state
responsibility for an internationally wrongful act or measure. Furthermore, Amestonia is
estopped from questioning the legality of the Verismo Program as Amestonian security
authorities had knowingly accepted, on at least 50 occasions, redacted information relating to
terrorist activity derived from Verismo.
PLEADING 4
Mayer and the two VoR employees are therefore entitled to full immunity from Amestionan
criminal jurisdiction under the VCCR and the Broadcasting Treaty. Amestonia has also violated
Article 14(2) of the Treaty (which states that in addition to the premises of the station, its
furnishings, equipment, and other property used in its operation, as well as its means of transport,
shall be immune from search, requisition, attachment, expropriation, or execution) by seizing and
then forfeiting VoR station property.
PLEADING 5
Riesland is entitled to compensation for Amestonias internationally wrongful act and the
immediate repatriation of its nationals Mayer and the two VoR employees.
PLEADING 6
In the instant case it is clearly established that there is an armed attack in response to which
Resiland has validly acted in self-defence to detain Kafker. Further, Riesland can validly
exercise universal jurisdiction over Kafker owing to terrorist activities committed by the HIVE.

xxvi

The treatment meted out to Kafker is in conformity with international standards and is
conversely not violative of his humanitarian rights. Further, the treatment is also no cruel
inhumane and degrading. The jurisdiction of the National security Tribunal is validly exercised.
PLEADING 7
The remedies of compensation and releasing of evidence are not well founded in International
Law in this case since there is no violation on Rieslands Part
PLEADING 8
The cyber-attack cannot be attributed to Riesland since attribution of a cyber-attack per Rule 7
needs more than just the location of the computer systems. Further it is clear from the standards
of anonymity and the degree of mutability of the cyber world that it is extremely difficult to zero
down upon the identity of the perpetrator merely on the basis of hardware.

xxvii

PLEADINGS

1.

THE DOCUMENTS PUBLISHED ON THE WEBSITE OF THE AMES POST ARE INADMISSIBLE
AS EVIDENCE BEFORE THE COURT.

1.1 THE DOCUMENTS

PUBLISHED ON THE WEBSITE OF

EVIDENCE BEFORE THE

COURT

THE AMES POST

ARE INADMISSIBLE AS

AS THE MANNER IN WHICH THEY WERE OBTAINED RENDERS

THEM UNRELIABLE

The judicial trend internationally is towards not admitting leaked documents into evidence 1, the
reason being that the manner in which the documents were obtained renders them substantially
unreliable and reliance on the documents would cast serious doubt on the integrity of the
proceedings2. The Special Tribunal for Lebanon (STL) has held that, in deciding whether to
admit leaked documents into evidence, the Trial Chamber must consider whether they contain
adequate indicia of reliability, in that the documents are both authentic and accurate3. In the case
of Ayyash et al, Defence counsel moved the Trial Chamber to admit into evidence two purported
American diplomatic cables-found on the website of WikiLeaks-describing meetings between
Lebanese politicians and American diplomats4. Defense counsel argued that the leaked
documents were reliable as they had been extensively published in reputed newspapers like The
New York Times, The Guardian, Der Spiegel, El Pais and Le Monde. Defense counsel further

STL, Prosecutor v. Ayyash et al., STL-11-01/T/TC at 9

Rome Statute of the International Criminal Court, art 69(7)

See Ayyash at 9

See Ayyash at 1.
1

argued that the U.S. Government had never denied the provenance of the WikiLeaks documents,
and this gave the documents the necessary indicia of reliability5.
The Trial Chamber rejected these arguments and sided with the prosecution, stating that
The Defence has not proved that the documents-apparently downloaded from the WikiLeaks
website-are authentic U.S. diplomatic cables. The documents may be authentic, but the Trial
Chamber has no evidence of the U.S. Government acknowledging their authenticity, or indeed
their accuracy. And, directly to the point on the reliability of the documents, the Trial Chamber
has no evidence that they accurately describe the events referred to in them.6 The Trial Chamber
refused to admit the leaked documents into evidence and it is submitted that this Court should do
the same in the present case as the facts are pari materia.
Riesland wishes to neither confirm nor deny the authenticity and accuracy of the
documents published on the website of The Ames Post. The documents were downloaded by
Frederico Frost in violation of Rieslands laws. He then drove to Amestonia and handed over the
documents to a law firm first, and then The Ames Post. Amestonia has not demonstrated how
general comments about the provenance of the leaked documents, reports by The Ames Post and
comments by politicians and Frost himself prove the authenticity of these specific documents.
References to these external sources do not demonstrate authenticity and it is simply not enough
that some of the documents bore the letterhead of the Bureaus Director. These documents have
simply been obtained by Amestonian officials from the website of The Ames Post, and they have
not brought any persuasive evidence of their authenticity, accuracy or reliability. It is therefore
submitted that admission into evidence of the leaked documents should be denied.
5

See Ayyash at 10.

See Ayyash at 11.

2

1.2 THE DOCUMENTS

PUBLISHED ON THE WEBSITE OF

THE AMES POST

ARE INADMISSIBLE AS

EVIDENCE BEFORE THE COURT AS THEY HAVE NO REAL PROBATIVE VALUE

Amestonia has not produced any direct evidence to support its claims that Riesland breached its
international law obligations and is relying only on circumstantial evidence, namely the
documents published on the website of The Ames Post. This Court has repeatedly held that it will
permit liberal reliance on circumstantial evidence so long as two conditions are met: (1) the
direct evidence is under the exclusive control of the opposing party; and (2) the circumstantial
evidence does not contradict any available direct evidence or accepted facts7.
Neither condition is satisfied in the present case. Riesland wishes to neither confirm nor deny the
existence of the documents; therefore there is no question of any direct evidence being under
its exclusive control. In any event, simply submitting that the other party has territorial control is
insufficient to earn the right to resort to circumstantial evidence8. The United Kingdom for
example kept information confidential in the Cofu Channel9 case, and Serbia kept information
confidential in Crime of Genocide10 (2007) case. This Court has repeatedly held that a partys
decision to keep information secret does not warrant automatically liberal reliance on
circumstantial evidence11.

Michael Scharf and Margaux Dat, The International Court of Justices Treatment of

Circumstantial evidence and Adverse Inferences (2012) 13 Chicago Journal of International

Law 123.
8

Id.

Corfu Channel (UK vAlb), 1949 ICJ 4 (Apr 9, 1949)

10

Crime of Genocide, 2007 ICJ at 129

11

Chittharanjan Felix Amerasinghe, Presumptions and Inferences in Evidence in International

Litigation (2004) 3 The Law and Practice of International Courts and Tribunals 395.
3

In the Oil Platforms12 case, the US, in an attempt to prove that the Sea Isle City was attacked by
Iran, relied on an announcement by President All Khamenei months earlier saying that Iran
would attack the US, as well as on public sources that reported that Iran was responsible for an
armed attack. This Court explained that it had decided to disregard this secondary evidence
because the Court had no knowledge of the original source, and that it was possible that
widespread reports of a fact may in actuality derive from a single source. Thus, concluded
this Court, numerous reports had no greater value than the original source, and these reports
could not be a substitute for direct evidence13. In DRC v. Uganda14, this Court chose not to rely
on various items offered as evidence such as an International Crisis Group report, a Human
Rights Watch Report, portions of a report by the UN Secretary-General that relied on secondhand reports, articles in the Integrated Regional Information Network bulletin among other
secondary sources because of their circumstantial nature. Thus, the Court reaffirmed that it
would not readily rely on circumstantial evidence presented by parties; instead, the Court
critically examined circumstantial evidence and compared it to any direct evidence on the issue
to see if it could be corroborated15.
In the present case, Amestonia is basing its claim entirely on unreliable reports published on the
website of The Ames Post and there is a significant amount of direct evidence which is available
on record. In the Crime of Genocide16 (2007) case, this Court refused to allow Bosnia to mount a
case based on circumstantial evidence to prove that Serbia had committed acts of genocide,
12

Oil Plafirms, 2003 ICJ at 190

13

Supra note 7.

14

DRC v Uganda, 2005 ICJ at 201

15

Id at 225

16

See Crime of Genocide at 29.

4

especially when Serbia had produced direct evidence to counter these claims. Further, in the
Ayyash17 case referred to earlier, the STL held that WikiLeaks documents were inadmissible but
the witnesses could be questioned on the content of the documents. A similar approach should be
followed here as the facts are pari materia; there is no paucity of direct evidence, and it is
therefore submitted that Amestonia may rely on the agreed facts in the compromis without
recourse to the unreliable, inauthentic, unverified and inaccurate documents published by The
Ames Post.
2.

NOTHING CONTAINED IN
POST

THE DOCUMENTS PUBLISHED ON THE WEBSITE OF

THE AMES

EVIDENCES A BREACH OF INTERNATIONAL LAW AND/OR OBLIGATIONS BY

RIESLAND.
2.1 THE VERISMO PROGRAM

IS IN ACCORDANCE WITH THE PROVISIONS OF THE

UNITED

NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)

One of the documents (the existence and/or veracity of which Riesland wishes to neither confirm
nor deny) published on 23 January, 2015 by The Ames Post and headed The Verismo Program
allegedly details a May 2013 operation whereby a waterproof recording pod was installed on the
undersea fiber optic cable in Rieslands exclusive economic zone (EEZ) that was the primary
backbone for Amestonias international internet and telephone communications traffic.
Rieslands installation of the pod for the purposes of information collection does not violate the
UNCLOS in any manner18. UNCLOS Article 56 establishes the substantive regime of the EEZ.

17
18

See Ayyash at 9.
United

Nations

Convention

on

the

Law

of

the

Sea

Current

<http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm>
accessed 13 January 2015.
5

Status

Riesland has the sovereign rights for the economic exploitation and exploration of all resources
in the EEZ, and also has jurisdiction over artificial islands and installations (in this case the fiber
optic cable), marine scientific research, and the protection and preservation of the marine
environment.19 Article 58 permits maritime states to engage in other internationally lawful uses
of the sea related to these freedoms, such as those associated withsubmarine cables and
pipelines, and compatible with the other provisions of this Convention.20 In addition to
conducting internationally lawful activities within the EEZ, Riesland is obliged to give due
regard to the rights and duties of other states and must act in a manner compatible with
UNCLOS provisions21, which it has done with Amestonia.
The Hive, a group of environmentalists, has been waging a concerted campaign against
Rieslandic companies for producing neuro-active insecticides (neonics) which were used by
Amestonian farmers to boost crop yield. On the night of 2 February 2014, seven Amestonian
warehouses were simultaneously set on fire, leading to the death of five individuals, two of
whom were Rieslandic nationals, with extensive damage being caused to the health of the local
population in addition to an estimated loss of 75 million euros. This was followed by threats to
the trade and agriculture ministries in both Riesland and Amestonia in the form of letters
accompanied with white powder which was a non-toxic variant of a neonic concealed in
envelopes. Following this attack, the Prime Minister of Riesland offered Rieslands continued
cooperation in combatting what she called acts of ecoterrorism, including coordination and
sharing of intelligence information, and stressed the importance of continued agricultural trade
19

Id.

20

Id.

21

See Jing Geng, The Legality of Foreign Military Activities in the Exclusive Economic Zone

under UNCLOS (2012) 28 Utrecht Journal of International and European Law 22

6

between the two countries, an offer which the Prime Minister of Amestonia readily accepted.
Following this explicit acceptance, Rieslands Prime Minister announced that she had ordered
Rieslands security and intelligence services to direct their operations against what appears to
be a new, growing, and dangerous threat to the well-being of both of our countries.
Thanks to a tip-off from the Bureau, Amestonian authorities were able to foil a potential
attack by Amestonian environmental activists who had been plotting to contaminate a large
shipment of honey, intended for consumption in Riesland, with a chemically-altered and toxic
neonic which could potentially cause serious bodily injury to anyone handling or inhaling it. The
tip-off which prevented the attack was a direct result of Rieslands intelligence gathering
operations in the region and beyond. Thus, it is clear that Riesland was exercising its rights in its
EEZ with due regard for the rights of Amestonia; without the intelligence gathering it
conducted in accordance with Articles 56 and 58 of UNCLOS, there would have been a greater
loss of life and damage to property in Amestonia thanks to The Hive. Further, the installation of
the pod to gather intelligence on eco-terrorist organisations such as The Hive satisfies the
standards set in Article 88 of UNCLOS, which asks states to ensure that the high seas shall be
reserved for peaceful purposes; the primary purpose behind the installation of the pod was to
ensure that the security and safety of both Amestonias and Rieslands nationals.

2.2 THE VERISMO PROGRAM

COVENANT

ON

CIVIL

AND

DOES NOT VIOLATE THE PROVISIONS OF THE INERNATIONAL

POLITICAL RIGHTS (ICCPR)

INTERNATIONAL OBLIGATIONS.

OR

RIESLANDS

OTHER

The International Covenant on Civil and Political Rights, ratified by both Amestonia and
Riesland, provides a right to privacy in article 17, stating that no one shall be subjected to
arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to
unlawful attacks on his or her honour and reputation22. It further states that everyone has the
right to the protection of the law against such interference or attacks. ICCPR Article 2(1) states,
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant . .
.23 The ICCPR imposes an obligation on Riesland to respect the right to privacy of individuals
within its territory. The Verismo Program only targeted individuals within the territory of
Amestonia, and as Article 17 has no extra-territorial operation, there is no question of Riesland
violating the right to privacy of individuals residing in Amestonian territory.
Even assuming that the right to privacy has extra-territorial operation, Riesland has not
violated Article 17 in any way and has complied with the U.N. Resolution on the Right to
Privacy in the Digital Age24. In the resolution, which was co-sponsored by 57 Member States,
the Assembly affirmed that the rights held by people offline must also be protected online, and
called upon all States to respect and protect the right to privacy in digital communication. As the
Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR)25

22

International Covenant on Civil and Political Rights art. 17(1), adopted Dec. 16, 1966, 999

U.N.T.S. 171
23

Id.

24

The Right to Privacy in the Digital Age, G.A. Res. 68/167, U.N. Doc. A/RES/68/167 (Jan. 21,

2014)
25

The Right to Privacy in the Digital Age, Report of the Office of the United Nations High

Commissioner

for

Human
8

Rights

(OHCHR)

has observed, interference with an individuals right to privacy is considered permissible under
international human rights law if it is neither arbitrary nor unlawful. In its general comment No.
16, the Human Rights Committee (HRC) explained that the term unlawful implied that no
interference could take place except in cases envisaged by the law. Interference authorized by
States can only take place on the basis of law, which itself must comply with the provisions,
aims and objectives of the Covenant26. In other words, interference what is permissible under
national law may nonetheless be unlawful if that national law is in conflict with the provisions
of the International Covenant on Civil and Political Rights. 27
In the present case the national law under which the Bureau derives its legitimacy from
the Secret Surveillance Bureau Act (SSBA) which grants the Director the power to authorize
electronic surveillance to acquire foreign intelligence (Section 21). That being said, Section 32 of
the SSBA puts in place certain structural safeguards whereby a National Security Tribunal (the
Tribunal) reviews all the electronic surveillance conducted by the Bureau every six months,
although the proceedings are not open to the public. A Parliamentary Oversight Committee with
the capacity to launch independent investigations complements regulations issued by the
Attorney General of Riesland regarding the legality of the Bureaus surveillance programs.
Finally, the surveillance of foreign public officials may be conducted only when the Director,
with the concurrence of the Minister of Foreign Affairs, considers it necessary.

http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37
_en.pdf (accessed 13 January 2015)
26

Official Records of the General Assembly, Forty-third Session, Supplement No. 40 (A/43/40),

annex VI, para. 3.

27

OHCHR Report at para 21.

9

The Bureaus Director deemed such surveillance necessary following the white powder
incident and instructed Bureau employees to use all of the Bureaus resources (including
Verismo) to track environmental activists in Amestonia, relying on specifically tailored search
terms, or selectors. Further, detailed regulations were issued by Rieslands Attorney General
regarding the Bureaus surveillance, and mandated that all data collected by the Bureau through
Verismo or related programs, other than as the result of investigation of a specific individual,
could be stored for a maximum of two years. It also noted that the Tribunal, in accordance with
the SSBA, had reviewed the Verismo Program every six months since its inception with no
participation from outside experts. The Parliamentary Committee for Surveillance Oversight had
also reviewed Verismo twice in closed-door hearings, but neither the Tribunal nor the Committee
had challenged its legality. Thus, the Verisomo program complied with Rieslands domestic law
fully.
The Verismo Program also complies with Article 17 of the ICCPR as the interference
with the privacy of the individuals surveillance is neither arbitrary nor unlawful and meets the
requirements laid down by the HRC that that any interference with privacy must be proportional
to the end sought and be necessary in the circumstances of any given case28. As observed by the
OHCHR report, the authoritative sources point to the overarching principles of legality, necessity
and proportionality any limitation to privacy rights reflected in article 17 must be provided for by
law, and the law must be sufficiently accessible, clear and precise so that an individual may look
to the law and ascertain who is authorized to conduct data surveillance and under what
circumstances29. Sections 21 and 32 SSBA clearly satisfy these ICCPR requirements.

28

Communication No. 488/1992

29

OHCHR report at para 23.

10

The OHCHR report also states that the interference must be necessary for reaching a
legitimate aim, as well as in proportion to that aim and the least intrusive option available30. The
installation of the pod on Rieslandic territory was the least intrusive option. The aim was to
ensure that any threat to either Riesland or Amestonias national security would be negated by
the intelligence gathered. As the OHCHR report acknowledges, surveillance on the grounds of
national security or for the prevention of terrorism or other crime may be a legitimate aim for
purposes of an assessment from the viewpoint of article 17 of the Covenant 31. The OHCHR
report also mandates that interference with privacy for the purposes of protecting national
security or the right to life of others must be shown to have some chance of achieving that goal.
This is has been clearly demonstrated in the present case as the intelligence gathered as part of
Verismo was used to thwart the attack on the shipment of honey. Furthermore Riesland had on at
least 50 occasions shared actionable intelligence and information relating to terrorist activity
derived from Verismo with Amestonia.
`

As the OHCHR report acknowledges, since digital communications technologies can be,

and have been, used by individuals for criminal objectives (including recruitment for and the
financing and commission of terrorist acts), the lawful, targeted surveillance of digital
communication, constitutes a necessary and effective measure for intelligence and/or law
enforcement entities when conducted in compliance with international and domestic law, which
is what Riesland has done under Verismo.

30

Id.

31

OHCHR report at para 24.

11

3.

AS RIESLAND HAS NOT BREACHED ANY INTERNATIONAL LAW OR TREATY OBLIGATIONS,

AMESTONIA NOT IS ENTITLED TO AN ORDER DIRECTING THE IMMEDIATE CESSATION OF
THE PROGRAMS REFERRED TO IN THE DOCUMENTS PUBLISHED

THE AMES POST

WEBISITE WITH ASSURANCES OF NON-REPETITION.

As demonstrated above, Riesland has not violated either UNCLOS or the ICCPR or any
other treaty obligation for that matter in conducting its surveillance programs. There is therefore
no question of state responsibility for an internationally wrongful act or measure.
Furthermore, Amestonia is estopped from questioning the legality of the Verismo
Program as Amestonian security authorities had knowingly accepted, on at least 50 occasions,
redacted information relating to terrorist activity derived from Verismo. The essence of estoppel
is the element of conduct which causes the other party, in reliance on such conduct, to suffer
prejudice32; it is essentially a principle of equity and justice derived from municipal law and held
to be applicable in international law33. When the intelligence obtained under what the Frost Files
called the Verismo Program was provided to Amestonian security authorities, its source was
never disclosed. As Amestonian officials always accepted the intelligence, and never challenged
or otherwise demanded additional information as to the nature, scope, and reach of the Verismo
Program, they are estopped from challenging its legality under international law in proceedings
before this Court.
4.

AMESTONIAS

SEIZURE AND FORFEITURE OF THE

AND THE ARREST OF

MARGARET MAYER

VOR

STATION AND ITS EQUIPMENT,

AND THE TWO

VOR

EMPLOYEES VIOLATES

THE BROADCASTING TREATY AND ITS INTERNATIONAL LAW OBLIGATIONS.

32

Gulf of Maine, ICJ Reports 1984 p, 246, 309

33

Honduras v. Nicaragua, ICJ Reports 1960 p. 192

12

4.1 AMESTONIAS ARREST OF MARGARET MAYER AND THE TWO VOR EMPLOYEES VIOLATES THE
BROADASTING TREATY AND ITS INTERNATIONAL LAW OBLIGATIONS
Article 15 (1) (a) no doubt states that the persons of VoRs employees shall be inviolable,
and they shall not be liable to any form of arrest or detention. Further, Article 15 (1) (b) states
that Each stations personnel shall enjoy immunity from the criminal jurisdiction of the receiving
state; Article 15 (1) (c) states that in respect of acts performed by an employee of the station in
the exercise of his/her functions, the immunities and privileges shall continue to subsist after the
employees functions at the station have come to an end. Amestonia has not produced any
evidence to prove that Margaret Mayer or the two VoR employees were willing participants in
the alleged Carmen Program. Mayer simply interviewed guests and there is no evidence to prove
that she was aware that the phones of her guests were being hacked into. Similarly, there is no
evidence to prove that the two arrested VoR employees were in actual fact Bureau engineers who
hacked into the phones of the guests who appeared on Tea Time with Margaret. There is
therefore no evidence on record to prove that Mayer and the two employees performed any
criminal acts that went beyond the purview of the stations and its employees functions which
was to produce and air programs and content including news stories, interviews, documentaries,
and movies with local viewers and listeners in Amestonia being the target audience. Therefore,
Mayer and the two Rieslandic nationals are completely immune from Amestonias criminal
jurisdiction. Furthermore, this immunity continued to subsist when they were arrested on the
train bound for Riesland under Article 15(1) (c).
Mayer is a consul and the VoR station consular premieses, as opposed to a diplomatic
agent and diplomatic premises, as the receiving State Amestonia gives her and the station
premises special protection i.e. a higher standard of diligence than that appropriate to protection
13

of aliens generally.34 Both Amestonia and Riesland are signatories to the Vienna Convention on
Consular Relations (VCCR). In a situation where the VCCR conflicts with a bilateral agreement
like the Broadcasting Treaty, it is the bilateral agreement that prevails; however, where there is
no overlap with the bilateral treaty, recourse may be had to the VCCR provisions. One such
provision is Article 41 (1) of the VCCR wherein consular officers shall not be liable to arrest or
detention pending trial, except in the case of a grave crime and pursuant to a decision by the
competent judicial authority. Although a warrant has been granted for their arrest, no crime, let
alone a grave one, has been committed by Mayer and the two employees.
Even if one were to assume that Mayer and the VoR employees had engaged in acts of
espionage, a crime for which they have been charged with under Amestonian law,
international law neither endorses nor prohibits espionage, but rather preserves the practice as a
tool by which to facilitate international cooperation, and functionally permits states not only to
verify that their neighbors are complying with international obligations, but also to confirm the
legitimacy of those assurances that their neighbors provide35. As there has never been a recorded
prosecution of diplomats for espionage,36 it is nigh on impossible that espionage may be
considered a grave crime under Article 41. Mayer and the two VoR employees are therefore
entitled to full immunity from Amestionan criminal jurisdiction under the VCCR.
4.2 AMESTONIAS

SEIZURE AND FORFEITURE OF THE

VOR

STATION AND ITS EQUIPMENT,

VIOLATES THE BROADCASTING TREATY AND ITS INTERNATIONAL LAW OBLIGATIONS

34

Brownlie at 412.

35

Christopher D. Baker, Tolerance of International Espionage: A Functional Approach (2004) 19

American University International Law Review 1091, 1092

36

Simon Chesterman, The Spy Who Came in from the Cold War: Intelligence and International

Law, (2006) 27 Michigan Journal of International Law 1071, 1081

14

Article 14 of the Treaty states that the premises of the VoR station shall be inviolable and
agents of Amestonia may not enter the station premises without the consent of the head of the
station. Such consent may be assumed only in cases of fire or other similar disaster posing or
threatening serious immediate danger to public safety or order. In the present case, Amestonian
authorities entered the station without obtaining the consent of the head of the station, Margaret
Mayer. None of the mitigating circumstances allowing for the presumption of consent was
satisfied and the presence of a warrant has no bearing upon the provisions of the Broadcasting
Treaty. Amestonian authorities also violated Article 31 (2) of the VCCR which states that:
The authorities of the receiving State shall not enter that part of the consular premises
which is used exclusively for the purpose of the work of the consular post except with the
consent of the head of the consular post or of his designee or of the head of the diplomatic
mission of the sending State.
Amestonia has also violated Article 14(2) of the Treaty (which states that in addition to the
premises of the station, its furnishings, equipment, and other property used in its operation, as
well as its means of transport, shall be immune from search, requisition, attachment,
expropriation, or execution) by seizing and then forfeiting VoR station property.
5.

RIESLAND IS ENTITLED TO COMPENSATION FOR THE SEIZURE AND FORFEITURE OF THE

VOR STATION AND ITS EQUIPMENT, AND THE IMMEDIATE RELEASE OF ITS NATIONALS,
NAMELY MARGARET MAYER AND THE TWO VOR EMPLOYEES.

5.1 RIESLAND IS ENTITLED TO COMPENSATION FOR THE SEIZURE AND FORFEITURE OF THE VOR
STATION AND ITS EQUIPMENT

15

It is a principle of international law that any breach of an obligation under a treaty or

other instruments entails the responsibility to make reparation37. This Court has stated that
reparation is the indispensable complement of a failure to apply a convention; there is no
necessity for this to be stated in the convention itself38. As demonstrated earlier, the State of
Amestonia is guilty of an intentionally wrongful act being seizing and forfeiting VoR property in
violation of the Broadcasting Treaty. Under Article 41 of the VCCR, if there is an expropriation
of property, prompt, adequate and effective compensation shall be paid to the sending State.
Furthermore, in the case of Gabkovo-Nagymaros Project39, this Court emphasized the wellestablished 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.40
5.2 RIESLAND IS ENTITLED TO THE IMMEDIATE RELEASE OF ITS NATIONALS, NAMELY MARGARET
MAYER AND THE TWO VOR EMPLOYEES.
While Amestonia is fully entitled to declare Mayer and the VoR employees persona non grata
under Article 9 the Vienna Convention on Diplomatic and Consular Relations, but they are duty
bound, much like in the Iranian Hostages cases, to immediately repatriate all three Rieslandic
nationals.

37

Spanish Zone of Morocco, 2 RIAA 615, 641

38

Factory at Chorzw (Germ. v. Pol.) (Claim for Indemnity) (Jurisdiction), 1927 P.C.I.J. (ser. A)

No. 9, at 31 (July 26)

39

ICJ Reports 1997 p. 7, 81

40

Id.
16

6. THAT THE DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM ACT DOES NOT
VIOLATE INTERNATIONAL LAW.

6.1 THAT RIESLANDS ACTS ARE VALIDLY JUSTIFIED AS A FORM OF SELF-DEFENSE.

6.1.1 THAT THERE WAS AN ARMED ATTACK
The U.N. Charter clearly outlines that every state has an inherent right to defend itself.41A
state must satisfy two criteria in order to engage in acts of self-defence on the territory of another
state. First, there must be an act or series of acts of sufficient gravity that they may be
characterized as an armed attack.42 Second, the armed attack must have a sufficient nexus to the
state upon which the act of self-defence will be carried out.43
International Law recognizes destruction of property and loss of life as elements of an
armed attack.44 The effects of an act of violence, including the reaction of the victim state and
the international community are also relevant in determining whether an armed attack has

41

See U.N. Charter, art. 51; Case Concerning Military and Paramilitary Activities in and

Against Nicaragua (Nicaragua v. United States of America), Merits, [1986] I.C.J. Rep. 14 at
para. 195 [Nicaragua]; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
[1996] I.C.J. Rep. 226 at para. 38 [Nuclear Weapons].
42

See Case Concerning United States Diplomatic and Consular Staff in Tehran (Iran v. United

States of America), [1980] I.C.J. Rep. 3 at para. 57 [Hostages]. See also Yoram Dinstein, War,
Aggression and Self-Defence, 3rd ed. (New York: Cambridge University Press, 2000) at 176.
43

See Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda)

(2006), 45 I.L.M. 271 at para. 146; Bruno Simma, ed. The Charter of the United Nations: A
Commentary, 2nd ed. (New York: Oxford University Press, 2002) at 82.
44

Hostages, at paras. 14, 57, 64. Cf.; Juan Carlos Abella v. Argentina (1997), Inter-Am. Comm.

H.R. No. 55/97, at para. 155; Annual Report of the Inter-American Commission on Human
Rights: 1997, OEA/Ser.L/II.28/Doc. 7 271.
17

occurred.45 Conversely, the type of weapon or mode of attack is irrelevant in establishing a right
of self-defence.46
In the instant case it can be clearly seen that the loss of Rieslandic citizens lives in the
attack on the neonicotinoid warehouses47 and additionally the sending of threatening letters to
ministers of Agriculture and Trade in Riesland,48 and the plot to adulterate honey49 all conform
with elements of violence that have resulted in the destruction of property and the loss of lives.
Therefore an armed attack can be seen to have been perpetrated in the instant case.
6.1.2 THAT AN ARMED ATTACK CAN BE PERPETRATED EVEN BY NON-STATE ACTORS AS
AUTONOMOUS ENTITIES.

Article 51 of the U.N. Charter50 has been interpreted to state that it is not required
necessarily for a state to have committed the armed attack for rule of self-defence to be vaidly
exercised on the territory of another State.51 This is logical, given the serious threat posed by

45

Sean D. Murphy, Terrorism and the Concept of Armed Attack in Article 51 of the U.N.

Charter (2002) 43 Harv. Intl L.J. 41 at 47-51 [Murphy, Terrorism]; Cf. Letter dated
2001/10/07 from the Permanent Representative of the United States of America to the United
Nations addressed to the President of the Security Council, UN Doc. S/2001/946 (2001).
46

See Nuclear Weapons, at paras. 38-39. Cf. SC Res. 1368 (2001), UN SCOR, 2001, UN Doc.

S/INF/57, 71.
47

Compromis [14]

48

Compromis [15]

49

Compromis [16]

50

U.N. Charter art 51

51

Armed Activities, at 358 para. 28 (Kooijmans, J., separate opinion)

18

non-state actors.52 Article 51 of the UN Charter does not stipulate expressis verbis that an armed
attack must be carried out by a state. A teleological interpretation of the article would render the
opinion that the purpose of Article 51 of the UN Charter is to ensure protection to an attacked
state by allowing it to carry out a legitimate action in self-defence regardless of the source of the
attack.53 While such interpretation undoubtedly marks a departure from the traditional stance on
this issue,54 it accommodates new threats from non-state actors. 55
Further, international opinion thereafter concluded that there was no reason to limit a
states right to protect itself to an attack by another state. The right of self-defence is a right to
use force to avert an attack. The source of the attack, whether a state or a non-state actor, is
irrelevant to the existence of the right56
NATO adopted the same principle when responding to the 9/11 threat in 2001 by
invoking article 5 of the Washington Treaty which states that an armed armed attack against one

52

Armed Activities, ibid. at 358 paras. 29-31. See also Sean D. Murphy Self-Defense and the

Israeli Wall Advisory Opinion: An Ipse Dixit From the ICJ? (2005) 99 A.J.I.L. 62; Ruth
Wedgwood, Responding to Terrorism: The Strikes Against bin Laden (1994) 24 Yale J. Intl L.
559 at 564-65.
53

A. Zimmermann, The Second Lebanon War: Jus ad bellum, jus in bello and the Issue of

Proportionality, Max Planck Yearbook of United Nations Law 99 (2007), p. 117.

54

Legal Consequences, Separate Opinion of Judge Kooijmans, para. 35.

55

Micheal Kowalski Armed Attack Non State actors and a quest for the attribution standard, PL

ISSN 0554-498X
56

J.A. Frowein, Der Terrorismus als Herausforderung fr das Vlkerrecht, 62 Zeitschrift fr

auslndisches ffentliches Recht und Vlkerrecht 879 (2002), p. 887;

19

or more of the Allies is considered an attack against them all57 In this post 9/11 era the notion of
attribution and the requirement of a nexus or a connect by the standards of overall control 58 or
effective control59 to be established between the non-state actor and a state party for an act to be
defined as an armed attack has developed keeping contemporary incidence and acts in mind. The
standard now recognises no state actors as an autonomous source of an attack.
In the instant case, the HIVE is a program run by non-state actors who are all
autonomous sources of the attack in the instant case. Joseph Kakfer has been shown to have links
with the top echelons of the HIVE and has also been shown to validate and encourage violent
sentiment on the online forum of the hive. This establishes a nexus of association that places
Joseph Kafker within the autonomous group of non-state actors within the HIVE that pose a
threat to Riesland especially since Kafker is also allegedly connected to the adulteration of honey
being shipped to Riesland which was an act that could have disastrous consequences.
6.1.3 THAT THE MEASURES EMPLOYED IN SELF DEFINES WERE VALIDLY EMPLOYED.
Acts taken in self-defence must meet the customary legal requirements of necessity and
proportionality.60 The necessity requirement depends on whether there is an alternative method

57

Statement by the North Atlantic Council, Press Release (2001) 124, 12 September 2001, ILM

40 (2001), 1267.
58

Cf. K. Schmalenbach, The Right of Self-Defence and the War on Terrorism One Year after

September 11, 3(9) German Law Journal (2002), paras. 20-21.

59

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

America), Merits, Judgement of 27 June 1986, I.C.J. Reports 1986, 14 et seq

60

See Nuclear Weapons, at para. 41.

20

available to curb the attack 61 and also on how much time is available to react between the period
of the act and the act of self-defence.62 To be considered proportional, a response must be limited
to what is sufficient to secure the defenders rights and ensure its security, including the
restoration of security in the wake of terrorist attacks.63 An evaluation of proportionality analyses
the reasonableness of an act of self-defence.64
In the instant case since links to the HIVE were establish to lead fo Joseph Kakfer, it was
necessary to apprehend him to foil any future plans and to detain him to prevent him from
applying for means that would allow him to return to Amestonia or free himself from Rieslands
Jurisdiciton to continue committing the acts he is accused of.
6.1.4 THE

PRINCIPLE OF AUT DEDERE AUT JUDICARE APPLIES TO THE INSTANT CASE AND

UNIVERSAL JURISDICTION HERE IS TRIGGERED BY THE ACTS THAT WERE COMMITTED.

The customary principle of aut dedere aut judicare65 requires States to prosecute or
surrender individuals suspected of having committed crimes triggering universal jurisdiction.
Respondents submit that such acts were committed in the Instant Case to justify universal
jurisdiction.
61

See Dinstein, at 183; See also Judith Gardam, Necessity, Proportionality and the Use of Force

By States (New York, Cambridge University Press, 2004) at 148-49.

62

See Nicaragua at para. 237; Myres M. McDougal & Florentino P. Feliciano, The International

Law of War: Transnational Coercion and World Public Order (Dordrehct: Martinus Nijhoff,
1994) at 222-24. See also Dinstein, ibid. at 184; Oscar Schachter, The Right of States to Use
Armed Force (1984) 83 Mich. L. Rev. 1626 at 1635.
63

See Nicaragua, at para. 237;

64

See Dinstein, at 147.

65

Bassiouni & Wise, Aut Dedere Aut Judicare: The Duty To Extradite Or Prosecute In

International Law 3 (1995); Bantekas & Nash, International Criminal Law 91 (2007).
21

An act of Terrorism was committed

The inconsistent application and interpretation of the term terrorism in State Practice
elucidates that no single definition of terrorism exists.66 Absent a clear definition of terrorism,67
one must investigate the definition of terrorism relied upon be Riesland. The definition relied
upon by Riesland in the Terrorism Act68 is Any other act intended to cause death or serious
bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a
situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate
a population, or to compel a government or an international organization to do or to abstain from
doing any act.69
In the instant case the acts of the threatening envelope followed by the attempt to transfer
adulterated honey in the backdrop of the destruction of warehouses and loss of live is sufficient
to fall within this definition of terrorism. In Prosecutor v. Gali,70 the International Criminal
Tribunal for Yugoslavia (ICTY) identified the specific intent to spread terror as the mens
rea of terrorism. Clearly, in the instant case the sending of the letters with the threat of poisoning
and then the act in attempt to poison form and clarify the mens rea of wanting to spread terror.

66

Shaukat Qadir, The Concept of International Terrorism: An Interim Study of South Asia in

ROUND TABLE 333-39 (2001); Thomas M. Franck, Preliminary Thoughts Towards an

International Convention on Terrorism, 68 A.J.I.L. 69 (1974).
67

Kalliopi Koufa, Specific Human Rights Issues: New Priorities, In Particular Terrorism,

Additional Progress Report, 44, U.N. Doc.E/CN.4/Sub.2/2003/WP.18 (2003).

68
69

Terrorism Act 2003

International Convention for the Suppression of the Financing of Terrorism (9 December

1999) art 2(1)b

70

Case No.IT-98-29-A, 104 (2006)

22

6.2 THE JOSEPH KAFKER

WAS

TREATED IN A MANNER CONSISTENT WITH INTERNATIONAL

LAW
6.2.1 AMESTONIAS CLAIM FOR RELEASE IS NOT WELL CONCEIVED.
Under customary international law, the complainant must carry his case to the highest
available local court before invoking the diplomatic intervention of his Government. 71 Tribunal
decisions72 and multinational instruments73 recognize this principle, which is based on
fundamental concepts of territorial sovereignty and equality.74In the instant case Joseph Kafker is
still within the jurisdiction of the local court in question and has not yet exhausted this remedy.
6.2.2 UNDER
DETENTION OF

THE PRINCIPLES OF

KAKFER

INTERNATIONAL HUMANITARIAN

LAW, THE

IS NOT ILLEGITIMATE SINCE HE CAN VALIDLY BE TERMED AND

UNLAWFUL COMBATANT.

71

Lord McNair, International Law Opinions, vol. II (Cambridge: Cambridge University Press,

1956) at 312. See also See Ian Brownlie, Principles of Public International Law (Oxford: Oxford
University Press, 2003) at at 501; Jan Paulsson, Denial of Justice in International Law
(Cambridge: Cambridge University Press, 2005) at 100.
72

See Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania) (1939), P.C.I.J. (Ser. A/B) No.

76 at para. 18; Ambatielos case (Greece v. UK) (1956), XII R.I.A.A. 83; Interhandel case
(Switzerland v. USA), [1959] I.C.J. Rep. 6 at 26-29.
73

International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171,

art. 41(c) [ICCPR]; American Convention on Human Rights, 18 July 1978, 1144 U.N.T.S. 123,
art. 46(1)(a); Convention for the Protection of Human Rights and Fundamental Freedoms, 18
May 1954, 213 U.N.T.S. 222, art. 35(1) [European Convention].
74

See Alwyn V. Freeman, The International Responsibility of State for Denial of Justice

(London: Longmans, Green and Co. Ltd., 1938) at 416-17.

23

Individuals who illegally launch armed attacks have been referred to variously as, banditti,
jayhawkers, guerrillas, or unauthorized marauders.75 They traditionally enjoyed few rights
and were tried and convicted summarily.76 During the American Civil War, unlawful combatants
were, treated summarily as highway robbers or pirates.77 The attacks of HIVE on Rieslandic
Citizens violate the fundamental precepts of IHL, which stress the distinction between military
and civilian targets in order to protect civilians.78 Joseph Kafter, a part of the group called the
HIVE can therefore appropriately termed to be an international outlaw and he can therefore
squarely be called an unlawful combatant and therefore has limited rights in the realm of
international law.
6.2.3 THAT UNLAWFUL COMBATANTS MAY BE DETAINED AND HELD INCOMMUNICADO.
That people wilfully engaging in hostilities may be detained is a long established
principle of International Humanitarian Law.79 The Geneva Conventions foresee situations
where unlawful combatants, such as spies and saboteurs, forfeit their communication rights.80
Such treatment is justified because secrecy is crucial to effectively combat the threat posed by

75

Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) at 17 (Thomas J., dissenting)

76

See Detter, at 148. See also Richard R. Baxter, So-Called Unprivileged Belligerency: Spies,

Guerrillas, and Saboteurs (1951) 28 Brit. Y.B. Intl L. 323.

77

Francis Lieber Instructions for the Government of Armies of the United States in the Field,

General Orders No. 100 (24 April 1863), art. 82 reproduced in Dietrich Shindler & Jiri Toman,
eds., The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other
Documents, (Boston: Martinus Nijhoff Publishers, 2004) 3.
78

Cf. Detter, at 160.

79

See Ex parte Quirin, 317 U.S. 1 at paras. 13, 14 (1942).

80

GC IV, , art. 5.
24

such individuals.81 Given the modus operendi of the HIVE, Joseph Kafker, allegedly a member
of the HIVE has rightfully been called a saboteurs.82 Therefore by this standard, Kafker can
validly be detained within the body of international law.
6.2.4. THE TREATMENT KAFKER WAS NOT CRUEL, INHUMAN, OR DEGRADING
The classification of treatment as cruel, inhuman or degrading is often a matter of
severity, intensity, and the totality of the circumstances.83 The prohibition on cruel, inhuman, and
degrading treatment aims to preserve human dignity and prevent individuals from being brought
down to the level of animals.84 Inhuman treatment is an intentional act that causes serious
mental or physical suffering or injury or constitutes a serious attack on human dignity. 85 The
definition of cruel is equivalent to that of inhumane.86
In the instant case the facts clearly show that Kafker had access to medical supplies and
was allowed consular services and could contact his relatives and they were also allowed to visit
him.87 Clearly the treatment being meted out to Joseph Kafker does not meet the above standard
of Curel, Inhumane and Degrading.

81

See Jean S. Pictet, ed., The Geneva Conventions of 12 August 1949, Commentary to Geneva

Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International
Committee for the Red Cross, 1952) at 52-53.
82

Delalic, at para. 521

83

Upholding the Rule of Law: A Special Issue of The Record, 59 N.Y. record of the Association

of the Bar 200 (2004).

84

Ibid

85

Ibid

86

Tamasi v. France (1993), 13 E.H.R.R. 1 at para. 115.

87

Comprimis [clarifications]
25

6.3 THAT THE ADJUDGING OF KAFKERS ARREST BEFORE THE NATIONAL SECURITY TRIBUNAL
IS CONSISTENT WITH INTERNATIONAL LAW

6.3.1 THAT

THE

NATIONAL SECURITY TRIBUNALS JURISDICTION

IS VALID UNDER SELF-

DEFENCE.

The ICCPR prohibits arbitrary arrest and detention, except where authorized by law. 88
Rieslands apprehension of Kakfer was a justified act of self-defence. This act of self-defence is
the legal basis for the arrest of the Kafker, and therefore justifies Kafkers jurisdiction over
them.89
6.3.2 RIESLANDS

TREATMENT OF THE

KAFKER

DOES NOT WARRANT REMOVING THE

JURISDICTION OF THE NATIONAL SECURITY TRIBUNAL

In some cases, courts have refused jurisdiction where to exercise that jurisdiction in light
of serious and egregious violations of the accuseds rights would prove detrimental to the courts
integrity.90 However, a court will only invoke this doctrine where the violation is of a most
shocking and outrageous character, limited to torture, brutality and similar outrageous

88
89

ICCPR, art. 9(1).

See Prosecutor v. Nikolic, IT-94-2-AR73, Decision on Interlocutory Appeal Concerning

Legality of Arrest (June 5, 2003) at para. 21 (International Criminal Tribunal for the Former
Yugoslavia, Appeals Chamber) [Nikolic].
90

Jean-Basco Barayagwiza v. The Prosecutor, ICTR-97-19-AR72, Decision (3 November 1999)

at para. 74 (International Criminal Tribunal for Rwanda, Appeals Chamber).

26

conduct.91 Cases where jurisdiction will be set aside are exceptional because in most situations,
the remedy of setting aside jurisdiction, will...be disproportionate.92 In the instant case no such
cruel treatment has been meted out and therefore such a bar to jurisdiction does not exist.
ALTERNATIVELY, RIESLAND DEROGATED FROM ITS OBLIGATIONS UNDER THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS
Article 4 of the ICCPR allows state parties to derogate from their obligations under the
Covenant. The language of Article 15 of the European Convention on Human Rights is virtually
identical to Article 4 of the ICCPR.93 As a result, the decisions of the European Court of Human
Rights (ECHR) provide useful authority in interpreting Article 4 of the ICCPR.94 In assessing
whether a derogation is valid, the ECHR has recognized that national authorities are in principle
in a better position than the international judge to decide both on the presence of such an
emergency and on the nature and scope of derogation necessary to avert it.95 As a result, it has

91

United States ex rel. Lujan v. Gengler, 510 F. 2d 62 (2d. Cir. 1975) at 65. See also Prosecutor

vs. Slavko Dokmanovic, IT-95-13a-PT, Decision on the Motion for Release by the Accused (22
October 1997) at para. 114 (International Criminal Tribunal for the Former Yugoslavia, Trial
Chamber).
92

Nikolic, at para. 30. See also Kajelijeli v. The Prosecutor, ICTR-98-44A-A, Judgement (23

May 2005) at para. 206 (International Criminal Tribunal for Rwanda, Appeals Chamber).
93

European Convention, art. 15.

94

See L.C. Green, Derogation of Human Rights in Emergency Situations (1978) 16 Can Y.B.

of Intl L. 92 at 102.
95

Ireland at 78-9 [Emphasis added].

27

allowed authorities a wide margin of appreciation, 96a level of deference that is reflected in the
decisions of some national courts.97
The ICCPR requires that governments establish four elements to justify derogation. The
State must show that there was a public emergency that threaten[ed] the life of the nation, that
it only took measures that were strictly required by the exigencies of the situation, that the
measures taken were not discriminatory, and that it informed the other parties of its
derogation.98

6.4.3 THE HIVE ATTACKS CONSTITUTED A PUBLIC EMERGENCY THAT THREATENED THE
LIFE OF THE NATION

The ECHR has generally considered terrorist attacks to be public emergencies. In

Lawless v. Ireland, several factors contributed to this finding: the existence of a secret army
using violence to attain its ends, the steady and alarming increase in terrorist activities, and the
fact that this army was operating outside of State territory, which jeoparded Irelands relations
with its neighbour.99 In Ireland v. United Kingdom100, the inability of the criminal courts to

96

Ibid.; See also Lawless v. Ireland (1961), 3 E.C.H.R. 25 [Lawless]; Brannigan and McBride v.

U.K. (1993), 258 E.C.H.R. 34 [Brannigan].

97

See Fort Frances Pulp and Power [Paper] Co. v. Manitoba Free Press Co., [1923] A.C. 695

at 706; Hamilton v. Kentucky Distillers & Warehouse Co., 251 U.S. 146 (1919).
98

ICCPR, art. 4(1).

99

Lawless v. Ireland (1961), 3 E.C.H.R. 25 [Lawless];

100

Ireland v. United Kingdom (1978), 25 E.C.H.R. (Ser. A) 1

28

restore order, the widespread intimidation of the population, and the potential for escape across
the border were sufficient find a public emergency.101
6.4.4 THE RIESLANDS TREATMENT WAS STRICTLY REQUIRED BY THE EXIGENCIES OF THE
SITUATION

The second stage analysis of derogation involves a consideration of the proportionality

and the duration of the derogation,102 in light of the margin of appreciation allowed to
governments. In Lawless and Brannigan and McBride, the ECHR deferred to the governments
assessment that detention without trial was necessary to respond to and investigate terrorist
crimes.103 In Ireland, the court found that administrative detention and coercive interrogations
were justifiable.104 Therefore all measures employed of Kafker are justifiable in International
Law to be valid in this case of exigency.
6.4.3 THAT RIESLAND GAVE SUFFICIENT NOTIFICATION OF ITS DEROGATION
The fourth requirement in derogating from the ICCPR requires that the State inform the
other parties of its derogation.105 The U.N. Human Rights Committee (HRC) has held that the
substantive right to take derogatory measures may not depend on a formal notification being

101

Report of the European Commission on Human Rights (Ireland v. U.K.) (1978), 23-1

E.C.H.R. (Ser. B) 8 at 75-86.

102

Mohamed M. El Zeidy, The ECHR and States of Emergency: Article 15 A Domestic

Power of Derogation from Human Rights Obligations, (2003) 4 San Diego Intl L.J. 277 at 286.
103

Lawless v. Ireland (1961), 3 E.C.H.R. 25 [Lawless]; Brannigan and McBride v. U.K. (1993),

258 E.C.H.R. 34;

104

Ireland v. United Kingdom (1978), 25 E.C.H.R. (Ser. A) 1

105

ICCPR 4(3)
29

made.106 Similarly, the ECHR has only required some formal and public act or derogation,
such as declaration of martial law or state of emergency.107 In a number cases the ECHR has
excused a Statess failure to provide formal notification, and proceeded nonetheless to evaluate
the necessity and proportionality of the derogations.108
In the instant case each time a terrorism alert was announced, the UN was appropriately
notified. 109 Further, on the arrest of Kafker, the state of Amestonia was notified immediately. 110
Therefore, in light of these above principles of international law, Kafkers detention is not illegal.
7. THAT AMESTONIA IS

NOT ENTITLED TO

KAFKERS IMMEDIATE RELEASE, THE DISCLOSURE

OF ALL THE INFORMATION WHICH FORMED THE BASIS OF HIS APPREHENSION, AND THE
PAYMENT OF COMPENSATION FOR HIS DETENTION.

With due reliance to the above contention in Pleading no 6, clearly since jurisdiction has validly
been exercised by the National Security Tribunal and moreover there is no breach in
international law, Kafker is not entitled to be released and nor is he or the State of Amestonia
entitled to reparations of any sort.

106

Human Rights Committee, Jorge Landinelli Silva v. Uruguay, Communication No. R.8/34

(30 May 1978), UN GAOR, 36th Sess., Supp. No. 40, UN Doc. A/36/40 (1981) 130 at para. 8.3..
See also Human Rights Committee, William Torres Ramirez v. Uruguay, Communication No.
4/1977 (13 February 1977), UN GAOR, Supp. No. 40, UN Doc. A/35/40 (1980) 121 at para. 17.
107
108

Cyprus v. Turkey (1976), 4 E.H.R.R. 482 at 556.

See Ibid.; Christoph Schreuer, Derogation of Human Rights in Situations of Public

Emergency: The Experience of the European Convention on Human Rights, (1982) 9 Yale J.
World Pub. Ord. 113 at 120; Lawless, at 61-62.
109

Compromis [Clarification]

110

Ibid.
30

8. THAT

THE CYBER-ATTACKS AGAINST THE COMPUTER SYSTEMS OF

THE AMES POST

AND

CHESTER & WALSINGHAM ARE NOT ATTRIBUTABLE TO RIESLAND, AND DO NOT CONSTITUTE
AN

INTERNATIONALLY

WRONGFUL

ACT

FOR

WHICH

AMESTONIA

IS

ENTITLED

TO

COMPENSATION.

It is a quintessential principle of international law that States bear responsibility for an act
when: (i) the act in question is attributable to the State under international law; and (ii) it
constitutes a breach of an international legal obligation applicable to that State.111 We submit that
the cyber-attacks are not attributable to Riesland since the above standards of state responsibility
are not satisfied and further, this constitutes a breach of an international legal obligation.
8.1 THAT THE CYBER-ATTACKS WERE NOT ATTRIBUTABLE TO RIESLAND.
Rule 10 of the Talinn Manual states that a cyber operation that constitutes a threat or a
use of force against the territorial integrity or the political independence of any state, or that in
any manner is inconsistent with the purposes of the United Nations, is unlawful.

112

Article 2(4)

of the UN Charter calls for member nation to refrain from using force as a customary norm in
international law.113 The use of force here can be undertaken by anyone within the control of the
state, including a states intelligence agencies or even a private contractor whose conduct is
attributable to the state.114 The principle laid down in Nicaragua prohibits a use of force against
matters within the sovereign control of the state and pertaining to the internal or external affairs
111

Articles on State Responsibility, Article 2

112

Ibid Rule 10

113

Nicaragua, para 188-90

114

Micheal N. Schmitt ed. Talinn Manual on the International Law applicable to Cyber Warfare

CUP 2013, rule 10, 43

31

of the state.115 Per the application of rule 11116 a cyber operation will constitute a use of force
when its scale and effects are comparable to non-cyber operations rising to the level of a use of
force. Rule 30117 defines a cyber-attack to mean a cyber operation whether offensive or defensive
that is reasonably expected to cause injury or death to persons or damage or destruction to
objects. A cyber-attack is a form of illegal use of force.

Rule 7 of the Talinn Manual 118 clearly states that the mere fact that a cyber operation had
been launched from governmental cyber infrastructure is not sufficient evidence for attributing
the operation to that state. This rule further goes on to state that a case by case account has to
be taken to establish a pattern with regard to control of this equipment to adjudge a states
association with the usage of that equipment for perpetrating the cyber-attack.119 For instance, if
the non-state actors form a regular pattern in taking over governmental equipment, this might
suggest governmental involvement since the only thing that could justify such repeated access to
non-state actors would be such involvement.120 In the instant case no such facts are found.
Therefore since there is no clear and convincing evidence as to the acts been committed
by Riesland and further the nature of the cyber world and anonymity therein establishes that in
the borderless cyber world where proxies and mirrors are used quire regularly at that to mask

115

Nicaragua para 202

116

Micheal N. Schmitt ed. Talinn Manual on the International Law applicable to Cyber Warfare

CUP 2013, rule 11

117

Ibid, rule 30, 106

118

Micheal N. Schmitt ed. Talinn Manual on the International Law applicable to Cyber Warfare
CUP 2013, rule 7
119
Ibid.
120
Ibid.
32

ones original location of usage and to bounce IP to make like the incursion is taking place from
an alternative location, no valid trace can be established. Therefore, these acts cannot be
attributed to Riesland.

33

PRAYER FOR RELIEF

Riesland respectfully requests this Honorable Court to adjudge and declare that:
(a) The documents published in the website of The Ames Post are illicitly obtained, and are
therefore inadmissible before the court and do not evidence any breach by Riesland of
international obligation owed to Amestonia.

(b) Riesland is entitled to compensation for the seizure and forfeiture of the VoR station and its
equipment.

(c) Riesland is entitled to the immediate release of its nationals

(d) Amestonia is not entitled to Kafkers immediate release, the disclosure of all the information
which formed the basis of his apprehension, and the payment of compensation for his detention.

(e) Amestonia is not entitled to compensation for the damages caused by the Cyber-attack

Respectfully submitted,
......................................................
(Agents for Riesland)

xxvii