International Court of Justice

Study Guide

Chair:

Joshua Wong

Assistant Chairs:

Meaghan Lim
Li Wan Chun, Wendy

CONTENTS PAGE

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Contents

Introduction to International Law

Introduction to the Case

Events leading up to the case (Actual)

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Events leading up to the case (Projected)

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Introduction to relevant international law

18

Academic Assumptions

19

Legal Strategy

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Issues regarding the case

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Examples of Analysis

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Pictorial Resource

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Bibliography

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INTRODUCTION TO INTERNATIONAL LAW

International Law is the set of rules and principles which primarily govern States and
international organisations, and to a lesser extent private individuals, minorities and
transnational companies. International law is mainly made and implemented by States. The
United Nations (UN) is principally focused on Public International Law, which combines two
distinct fields; the law of nations or Jus Gentium (literally law of the people), and
international agreements and conventions or Jus Inter Gentes (law between people).
INTRODUCTION TO THE INTERNATIONAL COURT OF JUSTICE

The International Court of Justice (ICJ) is the chief judicial organ of the UN, and all its
members are automatically parties to the statute of the court. It is the successor to the
Permanent Court of International Justice and was set up by the UN Charter in 1945. It is
located at the Peace Palace in The Hague (Netherlands). The official languages of the court
are English and French. The ICJ is tasked with resolving legal disputes in accordance with
international law, and also to give advisory opinions on legal queries referred to it by
authorised UN bodies and specialised agencies. The decision of the Court is final and
binding on the two parties to the case, but not on other States. This means that judges are
not bound by a case which has previously ruled on a similar issue, and they are free to
depart from the prior ruling. However, prior judgments should still be consulted for their
reasoning on issues of interpretation and the application of the law as they do carry some
persuasive weight.
Only States can be parties to the ICJ, and the consent of both parties must first be obtained
before the ICJ will adjudicate a case. This can be done firstly by way of a bilateral
agreement between the States to refer a particular legal dispute to the court. Secondly, the
parties can submit an optional clause declaration to the UN Secretary-General stating that
they will accept jurisdiction over certain disputes with other States that have also filed the
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same clause. Thirdly, some Conventions contain compromissory clauses which allow
disputes concerning the interpretation of its provisions to be brought to the ICJ.
The ICJ is composed of 15 judges who are elected for a term of nine years by the UN
General Assembly and the Security Council. Each judge is of a different nationality and are
representatives neither of the government of their own country nor of that of any other State
and each of them is first and foremost a legal authority in the judicial traditions in his or her
country that will exercise his or her powers impartially and conscientiously. Each judge
possesses the qualifications required in their respective countries for appointment to the
highest judicial offices, or is a jurisconsult of recognized competence in international law,
and thus ensures that the court represents the main forms of civilization and the principal
legal systems of the world.
In addition, the parties to a contentious dispute may appoint an ad-hoc judge each to the
Bench for the purposes of assisting with the decision-making process. These judges will
only sit International Court of Justice 4 on the Bench for the duration of the case that they
are nominated for.
The Registry assists the judges in the administrative matters of the court and will be present
to officiate over events such as oath-takings.
SOURCES OF INTERNATIONAL LAW

Article 38 of the Statute of the ICJ (Art X in ICJ SMUNs Rules of Court) sets out three
sources of International Law Treaties, custom, general principles and jurisprudence.
Treaties are written agreements between States which have been ratified by governments
and encompass Conventions, Declarations, Charters, Statutes and Resolutions. More
notable examples would be the Universal Declaration of Human Rights, the UN Charter as
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well as the Geneva Conventions. When a government ratifies a treaty, that country commits
itself to upholding the principles and rules outlined in it and the grounds on which they can
violate the treaty are very narrow. Hence, treaties are binding on States which have ratified
them and States cannot rely on their internal law to justify their failure to perform the
obligations of the treaty. There is an important difference between ratifying a treaty and
being a signatory to a treaty. A State that is a signatory to a treaty is not bound by its
provisions but merely undertakes an obligation to refrain from actions which would defeat
the object and purpose of the treaty. Provisions in treaties are only binding on State parties
and cannot be imposed on third States without their consent. The general rule on
interpretation of treaties is that they are to be interpreted in good faith, in accordance with
the ordinary meaning to be given to the terms in their context with attention paid to their
object and purpose as well. If there is a need to supplement the interpretation, reference
can be made to the preparatory work of the treaties and the circumstances of their
conclusions.
The second source of international law is that of custom. As the name suggests, it refers to
the general practice of States which has been accepted as law. However, in order for
something to qualify as a custom, it should be widely accepted among States. As
customary law is based on practice, it is often not written down. Where there is a dispute
over the existence of a rule of customary international law, it is for the State alleging its
existence to prove that it exists. Thus, when arguing based on customary law, you should
substantiate with research on which, or how many countries in the world practice or accept
it. The key is to find consistent and uniform State practice. For instance, it has been argued
that the abolition of the death penalty does not constitute custom because the number of
States which practice capital punishment is comparable to the number of States which have
abolished it. It is hence more difficult to argue that a practice is custom where not all States
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share a uniform opinion. However, it is advantageous to prove that a practice is customary

law as it would not matter that a State has not ratified that particular treaty since customary
law is supposed to refer to widely accepted practices and are in principle, binding on all
States. Some examples of customary international law include giving foreign diplomats
immunity from criminal laws, protecting non-combatants like civilians during international
armed conflict, respecting the territorial boundaries of neighbouring states etc.
The third source of international law is general principles. General principles of law are
principles that are adhered to in all major legal systems of the world, such as the idea that a
person may only come under the purview of the criminal law if he has committed a crime.
Theoretically, there is no hierarchy amongst the three sources of international law.
However, in practice, applicable treaty rules are looked to first, followed by custom and
general principles respectively. Treaty rules are considered to be the most clear and certain
hence they usually serve as the starting point. Besides these sources, there are two types
of norms which have a higher status. The first is the concept of peremptory norms, or jus
cogens, which is defined as norms which are so fundamental and important that they
cannot be departed from, such as the proscription against wars of unmitigated violence.
Any treaty that goes against jus cogens is thus void. The second norm is that in the event of
a conflict between members obligations under the UN Charter and obligations under any
other international agreement, the Charter prevails. This is set out in Article 103 of the UN
Charter.
Besides the three sources of international law, the ICJ statute provides for two other
subsidiary means for the determination of rules of lawjudicial decisions and teachings of
the most highly qualified publicists i.e. scholarly writings. These are not sources of law but
rather evidence that can be used to prove the existence of customary international law or
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general principles. Judicial decisions refer to the decisions of international courts or

tribunals as well as decisions of the highest national courts on international law issues.
Scholarly writings refer to writings by scholars who are experts in international law.
Resolutions of the UN are only recommendations and are not legally binding though in
some cases, they may be subsidiary means for determining rules of customary international
law. The amount of importance to be accorded to these resolutions would depend on their
wording, the circumstances of their adoption and the amount of votes the resolution got. If
the resolution purports to declare a set of legal principles, is worded in norm creating
language, and is adopted by consensus or without negative vote, it can be evidence of
rules of custom especially if States have acted in compliance with its terms. Some
examples of UN resolutions which have been considered evidence are GAR 3314
Resolution on the Definition of Aggression.
STATE RESPONSIBILITY

Under international law, State responsibility refers to the principles and rules for
determining when a State is responsible for breaching the international obligations it owes
to another state and the consequences of such a breach.
The general principle is that a State is responsible to another State for its internationally
wrongful acts. Such an act is defined as one where conduct consisting of an act of omission
is (1) attributable to the State under international law and (2) constitutes a breach of an
international obligation of the State. The conduct of a private individual or group is generally
not attributable to the State but the conduct of an individual or group empowered by the
State to exercise elements of government authority is.

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When a State is found to be responsible for breaching an obligation, it has the obligation to
cease the wrongful act if it is still continuing. The State is also under an obligation to offer
appropriate assurance and guarantees of non-repetition. In addition, reparations for any
injury (material or moral) caused may be required as well. There are three forms of
reparation under international lawrestitution, compensation and satisfaction. The
preferred form is restitution followed by the other two respectively. Restitution requires the
State to restore the situation to the way it was before the wrong was committed.
Compensation requires the State to cover the financially assessable damage which
includes loss of profits. Satisfaction consists of acknowledgement of the breach, an
expression of regret and a formal apology.
However, there are defences to a breach of international obligation. These are valid
consent to the commission of an act, self-defence under Article 51 of the UN Charter,
distress, necessity and a valid counter-measure in respect of a previous wrongful act. A
countermeasure is a self-help measure used to induce a State which is responsible for an
internationally wrongful act to comply with its obligations. This involves the temporary nonperformance of an international obligation. There are several restrictions in place on the use
of countermeasures. They cannot involve the use of force or be in violation of obligations
for the protection of fundamental human rights. The use of countermeasures must also be
proportionate in relation to the injury suffered.
INTRODUCTION TO THE CASE
INTRODUCTION TO DRONES

Unmanned Aerial Vehicles (UAVs), more popularly known as drones, are amongst the latest
developments in military technology. As the name suggests, these vehicles have no onboard pilot and are controlled remotely, with their human operators hundreds, sometimes
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thousands of miles away. Drones have been used as early as the opening stages of the
Vietnam War by the USA in the 1960s. Since then, other states and non-state actors, such
as Brazil, China, Russia, Singapore, Hezbollah, Israel and Pakistan, have been acquiring
them. Drones have evolved in recent years from reconnaissance roles to carry out supply
missions and more relevantly, precision strikes. The USA first armed drones with hellfire
missiles in 2001 for combat in Afghanistan and made their first kill by drone in November
2002. Drones have been increasingly deployed in the final years of the President Bush
administration and throughout the term of President Obama. Developments in these
Unmanned Combat Aerial Vehicles will likely seek to improve their precision, by arming
them with weapons other than missiles and bombs to increase their versatility. Automation
is also being looked into, in which drones will no longer be programmed to advise their
human operators in launching an attack but will make the decision themselves based on
pre-set parameters.
DRONES IN PAKISTAN

The US Drone War in Pakistan began on the 18 th June 2004 in Wazirsitan. Nek
Mohammad Wazir, a notable tribal military leader accused of Al Qaeda and Taliban links,
was killed by an AGM-114 HELLFIRE missile launched from a MQ-1 Predator drone,
along with four people in the vicinity. Since then, combat drones have played an
increasingly more important role in the US battle doctrine concerning the War on Terror,
and have developed accordingly. For example, the recently-introduced MQ-9 Reaper is
capable of carrying heavier weaponry, such as 500 pound bombs, which cause a bigger
area of damage than the 15-20m blast radius of a typical Hellfire Missile.
THE FATA
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The Federally Administered Tribal Areas (FATA) are semi-autonomous regions located in
northwestern Pakistan. Bordered by the Durand Line and Afghanistan in the west, and the
Pakistani provinces of Khyber Pakhtunkhawa and Balochistan to the north-east and south
respectively, it has been a source of significant unrest since the Soviet Occupation of
Afghanistan. Armed non-state actors, such as Al Qaeda, the Quetta Shura, the Haqqani
Network, the Tehrik-i-Taliban, Pakistan (TTP), and Tehrik-i-Nifaz-i-Shariat-i-Muhammadi
(TNSM), have been attacking Pakistani civilians and government targets in the region. They
also use it as a base in the war of terror to fight US and Afghan forces across the porous
border of Afghanistan after retreating from the country during the 2001 US invasion. The
region saw an increase in fighting after the USA persuaded Pakistani President Musharraf
to assist in regional counter-terrorism operations during their Afghanistan campaign.
Pakistan has limited support for the Taliban, who combat corrupt, unfair and inefficient
government or tribal processes with Sharia law. However, many Taliban methods, such as
the strict imposition of conservative culture and religious practices, the killing of moderates
and government infrastructure designed to widen the rift between the government and the
locals, have proved deeply unpopular. Pakistani counter-terrorism operations have been
executed by the federal paramilitary force Frontier Corps (FC), the Inter-Service Intelligence
Agency (ISI), and tribal LASHKARS (traditional tribal militias). These agencies are
responsible

for

severe

rights

violations such

as extrajudicial

killings,

enforced

disappearances, and complicity in the murder of journalists. The Pakistani government

appears unable to stop these abuses.
Despite this, there has been widespread opposition to US involvement in the region. Many
fear that their houses may be tagged by a transmitter chip, which marks a specific target
for a drone strike. These sentiments manifested most prominently in October 2011, when
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the Wazriristan grand tribal Jirga, a decision-making assembly of male elders that resolve
community conflicts in the FATA, unanimously called for the cessation of drone strikes in the
area amongst other demands.
US DEPLOYMENT OF DRONES

The Drone War initiated by the Bush administration after the September 11 attacks
escalated massively under President Obama. The use of drones as a form of military aid
has considerable appeal to the Obama administration, which seeks to provide a supportive
role to the newly formed Afghan army with few casualties as they consider a total
withdrawal of troops from as early as 2014. The effectiveness of drone strikes in routing the
Taliban and their allies, and the relative attractiveness of drones as a form of military aid are
up for debate. However, the main concern here is that the manner of which the drones are
deployed raise questions about the legality of such strikes.
Contentions have already been made concerning the policy of targeted killing, the killing
of named, high ranking leaders of armed terrorist groups based on the use of a disposition
matrix. The disposition matrix is essentially a kill list created by the CIA, to state which
individuals can be targeted and killed by drone strikes. The addition of individuals to the kill
list is overseen by the agencys National Counterterrorism Centre (NCTC), allegedly with
the help of lawyers who write briefs to justify the killing of certain individuals. The US
president has the final say as to whether a strike can be carried out with the aim to kill a
specific individual, but due to the nature of international security, the process is shrouded in
secrecy. Thus, it is argued that potential mistakes and abuses are shielded from scrutiny
and accountability. Moreover, even under the existing paradigm there are doubts if the
strikes remain sufficiently legal. For example, the United Nations Special Rapporteur on
extrajudicial, summary, or arbitrary executions, concluded that the November 2002 strike
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that killed Qaed Sinan Harithi, one of the planners of the USS Cole attack, constitute[d] a
clear case of extrajudicial killing.
Even in the case where due judicial process is given to the addition of targets to the
disposition list and collateral damage is taken out of the picture, the precision of the drone
strikes is still called into question. For example, in the first US drone strike in Afghanistan in
February 2002, 3 men were killed near a former MUJAHEDEEN base called Zhawar Kili
because one of them resembled the physical profile of Osama Bin Laden even though their
exact nature was not known. Subsequent reports suggest that the individuals were
collecting scrap metal. The usage of drones has also reportedly expanded to include
signature strikes, the killing of individuals who have been deduced by a pattern of life
analysis to be displaying characteristics associated with terrorism but whose identities are
not known. Such defining characteristics have never been made known for reasons of
security, as it would allow the targets to better evade the drones. However, it does put into
further question the legal grounds of the killing.
The drone battle doctrine itself has aspects that are more certainly controversial. The
double tap tactic, where initial strikes are followed by further missiles in the area, have
become increasingly prevalent. Rescuers who are not intended targets but seek to save
casualties of the first strike often become casualties themselves in the second strike.
Another apparent policy that is a development of the double tap tactic is the targeting of
funeral processions of slain militants. In both cases, the desired effect of deterring people
from making contact with militants, known or suspected, has been achieved. However,
these policies have been deemed responsible, by lawyers and human right advocates, for
increasing the number of civilian deaths. This raises doubts about whether the usage of
drones follows humanitarian law and the laws of war.
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PAKISTANI STANCE ON THE ISSUE

The relationship between Pakistan and the US with regard to the drones is equivocal.
Earlier in the drone campaign, Pakistan claimed responsibility for the drone attacks and
celebrated their effectiveness. However, as the impact of the drones on the population
increases grew, members of the government voiced opposition to the drones in the National
Assembly, while still maintaining covert support of the campaign due to its perceived
effectiveness in the War on Terror. According to cables released by WIKILEAKS IN 2009,
the Pakistani Prime Minister allegedly told US officials I dont care if they [conduct strikes]
as long as they get the right people. Well protest in the National Assembly and then ignore
it. Apparently an unspoken deal was made, in which Pakistani officials give the CIA implicit
legal support by ignoring faxes sent to them outlining where the USA intends to conduct
drone operations within the borders of Pakistan, while distancing them from the program
which is deeply unpopular amongst Pakistanis.
President Obamas increasing reliance of drones to fight the war on terror has given the
campaign a more sinister and inhuman face. In 2011 in particular, several events prompted
increased opposition to the drone campaign and the USA. These were: the shooting of 2
locals by CIA agent Raymond Davis in January, Operation Neptune Spear in May, which
resulted in the death of Osama Bin Laden, and the Salala incident in November which
resulted in the accidental killing of 24 Pakistani soldiers NATO. This led to the temporary
suspension of the use of drones in order to prevent further antagonising of the Pakistani
government and people.
Given the deaths of extremist leaders, there is some support in Pakistan as well as the
FATA. However, the majority of the population feel that the drones are killing too many
innocents, that they are not necessary in defending Pakistan and that the climate of fear
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with drones flying overhead in the region is too great a cost to bear. In 2012, there was a
marked increased in Pakistani officials protesting against the drone strikes. They
collectively assert that the strikes are against international law, a violation of Pakistans
sovereignty, and are counterproductive in the war on Terror.
TIMELINE OF EVENTS LEADING UP TO THE CASE. (FACTUAL)

01 Feb 2012 In response to US President Obamas admission of US responsibility for

Pakistani drone strikes, an Islamdabad-based legal charity called the Foundation for
Fundamental Rights (FFR), demanded that the Pakistani government push for the adoption
of a UN resolution that would require the cessation of the US drone campaign.
http://www.reprieve.org.uk/press/2012_02_01_FFR_drones_Pakistan_UN/
09 May 2012 The FFR filed 2 constitution petitions against the Pakistani Government in
Peshawar's High Court on behalf of the victims of the March 2012 Drone Strike. The FFR
raised the possibility of secret pact between the US and Pakistan, which was very likely
illegal and unconstitutional. The FFR also advocated raising the matter to the UNHRC,
UNSC and the ICJ.
http://www.reprieve.org.uk/press/2012_05_09_drones_victims_sue_pakistan_complicity/

07 Jun 2012 At the end of her 4 day trip in the country, the UN high commissioner for
Human Rights, Navi Pillay, told the Pakistani Prime minister that they should seek an official
UN investigation into whether US drone strikes in the FATA are legal in the form of the UN's
special rapporteur on extrajudicial, summary or arbitrary executions.
www.guardian.co.uk/world/2012/jun/07/pakistan-investigation-us-drone-strikes
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21 Jun 2012 Christof Heyns, the UN special rapporteur on extrajudicial killings, summary or
arbitrary executions, told a conference organised by the American Civil Liberties Union
(ACLU) in Geneva that the use of drones to carry out targeted killing threatened the
international legal system and possibly breaks the laws of war.
http://www.guardian.co.uk/world/2012/jun/21/drone-strikes-international-law-un
18 Jul 2012 The Grand tribal Jirga of Peshawar, organised by the Pakistan Tehreek-e-Insaf
(PTI), demanded a halt to military operations and drone attacks in the FATAs. It also
concluded that the War on Terror was ultimately for US benefit, and that the disregard for
human rights in the campaign was counterproductive for the region.
http://frc.com.pk/news/grand-jirga-demanded-halt-to-operation-and-drone-attacks-in-fata/

06 Oct 2012 The PTI Peace March of to protest against drone strikes left Islamabad for
South Waziristan. At the head of the 5000 strong column was the Chairman of the PTI,
Imran Khan, a former national cricketer. The government has warned the marchers of the
possibility of suicide bombers and blockaded the road to the FATA.
http://tribune.com.pk/story/447873/pti-peace-march-sets-off-to-south-waziristan/
08 Oct 2012 Imran Khan expressed contentment over his partys Peace March. Although
the march failed to reach the Waziristan border, he felt that it was for the best given the fear
of threats real and perceived, such as suicide bombers or poisoned wells along the route,
which would have dampened peoples enthusiasm for further action.
http://tribune.com.pk/story/448657/imran-khan-happy-with-waziristan-peace-march/

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25 Oct 2012 Ben Emmerson, UN Special rapporteur on counter-terror operations,

condemned Barack Obamas failure to establish an effective monitoring process of the
legality of drone targeted killing and the extent of civilian deaths. Emmerson declared that
he would be launching an investigation unit with Christof Heyns under the UNHRC.
http://www.guardian.co.uk/world/2012/oct/25/un-inquiry-us-drone-strikes
28 Oct 2012 US immigration detained Imran Khan and interrogated him on his position on
drones on his flight to New York. Critics of US policy have been harassed before, but given
that he is Pakistans most popular politician and likely next Prime Minister, the move was at
best a breach of diplomatic protocol and at worst, extremely unwise.
http://www.guardian.co.uk/commentisfree/2012/oct/28/detention-imran-khan-drones
24 Dec 2012
The PTI lawyers' wing president, Hamid Khan stated that the party would soon file a petition
in the ICJ against the US drone attacks in tribal areas of the country. A preceding roll out
plan including provincial press conferences, briefing of foreign ambassadors of the issues
and countrywide demonstrations has been planned.
http://www.brecorder.com/general-news/172/1272178/
21 Jan 2013 PTI Chairman Imran Khan has expressed concern from US media reports that
the US has been given free run by the Pakistani Government to deploy drones. He has
stated that as the most visible source of US aggression, it has killed many innocents,
infringed upon Pakistani sovereignty, and escalated regional militancy.

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http://www.insaf.pk/News/tabid/60/articleType/ArticleView/articleId/14786/PTI-alarmed-atfree-run-being-given-to-USA-for-drone-strikes-in-Pakistan.aspx
15 Mar 2013 A secret 3 day visit by the UNs special rapporteur Ben Emmerson has
concluded that it could find no consent provided by the Pakistani Government for US drone
strikes. This is in response to suspicions that parts of Pakistans military or intelligence
organisations have been providing authorisation for the attacks.
http://www.guardian.co.uk/world/2013/mar/15/us-drone-strikes-pakistan
17 Mar 2013 Prime Minister Raja Pervaiz Ashraf has dissolved the National Assembly in
accordance to agreements made with cleric and protest leader Mohammad Tahir-ul-Qadri in
the Islamabad Long March Declaration. The protest aimed for freer and fairer elections, and
a greater campaigning window to more effectively scrutinise candidates.
http://tribune.com.pk/story/521913/national-assembly-stands-dissolved/

TIMELINE OF EVENTS LEADING UP TO THE CASE. (PROJECTED)

Delegates are to assume the following developments which should not be disputed by
material produced after the 1 st of April 2013. This is to ensure that there are no hiccups in
the bringing the case to the ICJ. Take note of these assumptions when selecting of PreConference material. Any uncertainty regarding this can be referred to the dials.
12 Apr 2013 Former Pakistani President has admitted giving permission for the CIA to
launch drone attacks only on a few occasions, when a target was absolutely isolated and
was only used as a last resort. Pakistanis denial of involvement has been dubious despite
Pakistans parliament declaring all drones strikes to be illegal last year.
http://www.guardian.co.uk/world/2013/apr/12/musharraf-admits-permitting-drone-strikes
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17 Apr 2013 The issue of Pakistani ties with the US, the continuation of the drone
campaign in the FATA in particular, is dominating the debate. The PTIs political capital
earned from the Waziristan peace march, as well as the press conferences hosted by the partys
lawyer wing on the subject, is gaining massive dividends in the polls.

11 May 2013 The PTI, having previously boycotted the last election, has managed to
present itself as a fresh voice for change and has won nearly half of the vote. As part of his
victory speech, Imran Khan has re-emphasised his dedication to fighting bureaucratic
corruption and his desire to end the US War on Terror.
17 May 2013 The 14th National Assembly of Pakistan has been sworn in with Imran Khan
as Prime Minister and former unofficial leader of the opposition, Mr Nawaz Sharif of the
Pakistan Muslim League (N) (PML-N), as President. The Assemblys inaugural motion is a
bill regarding a shift in stance towards the USA, including bringing a case against the USA
in the ICJ with regards to the drone campaign. Pressure has been mounting against the
party as NGO legal associations have been organising rallies calling for action in the
aftermath of the election in Pakistan. Moreover, political motivations are at play, as a
successful judgement on the popular issue would cement the coalition led by the PTI and
composed the variations of the PML (Q, F and N) and the Jamiat Ulema-e-Islam (JUI). The
newly appointed Minister of Law, Justice and Parliamentary Affairs, Hamid Khan, has
announced that preliminary contact has been made with Bar Associations both local and
international on how to craft the case and rally international support. Resident ambassadors
have been briefed about the Drone attacks. US ambassador to Pakistan, Richard Olson,
has been advised that plans have already been taken to bring a case against his country in
the ICJ.
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The stakes are high. Pakistan losing the case would shake the unity of the fragile coalition.
It would result in a backlash amongst the populace and possible instability, tempting the
army to impose martial law and crush a nascent democracy. It would set the precedence for
usage of UAVs for the many states building up their arsenal, and thus set the future of the
legalities of war. For the USA, losing the case will mean effectively rendering the massive
increase in defence spending in 2011 on unmanned drones, submarines and helicopters
redundant. That would give Republicans fresh ammunition to attack President Obama on
principle and policy. The unwilling supplicant, the USA, has to fight the case in order to
continue the War on Terror. However, the judgement could achieve the PTIs goal of
stopping all foreign aid to Pakistan. This would effectively end the campaign, leaving a base
from which enemies can slip through the Durand Line and de-stabilize Afghanistan, which
the US has been trying to prop up before it pulls out by 2014.
The World awaits the Judgement of the Court at the Dawn of June.
INTRODUCTION TO RELEVANT INTERNATIONAL LAW

One must first consider the objective and setting in which the debates take place. The court
convenes to determine if international law, as determined by treaties, customs and general
principles, has been broken. If it is broken, then to what degree, and what appropriate
reparations and retribution needs to be carried out, is determined via the passing of a
judgment. There is no burden on the court is to come up with a solution to the issue.
Moreover, the court is supposed to make a decision if the law was broken in the first place,
and not make a decision on whether it was acceptable for parties to have broken the law.
Secondly, we understand that as mere model delegates, advocates and assorted judges,
we do not have full access to the full set of resources which the real Court would possess. A
lot of the information has to be garnered second hand, displayed alongside contradictory
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evidence or are not made public to model delegates due to reasons of politics and security.
However, uncertainty of facts is a normal part of judicial proceedings and should not be
seen as a big obstacle to the debate. Moreover, the focus of the simulation is not to
determine who is right or wrong, but to provide a platform for delegates to showcase
strategic creativity, analytical rigor and oratorical skill. As such, a certain degree of
imagination is entertained and even encouraged while gridlocked arguments over minor or
quantitative details are frowned upon. As long as a case in constructed within reason and
has a careful respect for reality, we will accept it. The creation and framing of ones
evidence should be done with the same care that one typically has with ones policies and
arguments in other forms of debate.
Finally, we would like to state that the material in the following pages is not exhaustive. It is
merely there to point research in a general direction. Advocates are encouraged to come up
with an original legal strategy which suits their strengths, and thus has the best chance of
success.
ACADEMIC ASSUMPTIONS

Given that this simulation of the International Court of Justice is within the academicoriented framework of the Singapore Model United Nations, and to retain the focus on the
judicial rather than the political aspect, a few key assumptions are to be made. The first is
that the ability of the Security Council to veto the judgements of the ICJ will not come into
play in the simulation. The second is that political considerations to the preceding
government (PPP Coalition) by the incumbent (PTI Coalition) will not be taken into
considerations by the Pakistani advocates. (i.e. intra-state horse trading.) Thirdly, in the
interest of debate, we will presume that the ICJ has jurisdiction, and thus the question of
jurisdiction should not arise during the conference. Lastly, we will assume the ratification of
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the 1977 Amendments to the Geneva Convention Protocol 1 and in particular the ratification
of Article 35, clause 2.
LEGAL STRATEGY

The main treaty that applies for this case before the ICJ is the 1977 amendment protocol to
the Geneva Convention, Protocol I, which relates to the protection of victims of international
armed conflicts. In particular, the debate about the drone campaign of the US in Pakistan
will focus on Article 35, clause 2 which states:

It is prohibited to employ weapons, projectiles and material and methods of

warfare of a nature to cause superfluous injury or unnecessary suffering.
http://www.icrc.org/ihl.nsf/WebART/470-750044?OpenDocument

The judgement and the remedies awarded by the judges will be determined based on
whether this law has been broken.
The 1977 Amendments to the Geneva Convention, Protocol 1 reaffirms the original Geneva
conventions, but adds clarifications and new provisions to accommodate developments in
modern international warfare that have taken place since the Second World War. The
United States and Pakistan signed it on 12 December 1977 with the intention of ratifying it,
but have not yet done so. However, as stated previously, for the interest of debate, we
would assume ratification of the protocol.
The specific law being debated, Article 35, clause 2, has already been previously ratified in
the Hague Convention of 1899, a treaty signed by the USA in 29 July 1899 and ratified in 9
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April 1902. In Section II, Chapter I, Article 23e of the annex to the Hague Convention of
1899 states: It is especially prohibited to employ arms, projectiles, or material of a nature to
cause superfluous injury. The Hague Convention of 1899 is a treaty which defines and
governs war on land by defining laws and customs of war on land more precisely and laying
down certain limits so as to lessen the severity of the impact of war as far as possible. By
serving as general rules of conduct for belligerents in their relations with each other and
with populations, the Hague Convention of 1899 is in many ways a fore-runner of the
Geneva Convention in establishing formal laws of war.
Lastly, as a reminder to the court, in addition to the discussions on who wins the case, both
Pakistan and the USA need to identify what would be a fair remedy to the case. This is
somewhat based on politics according to each countrys foreign policy, which gives us an
idea as to what they aim to achieve with this case. However, the remedy each country
argues for must have legal justification and is proportionate to the harm suffered by the
defendant. A countries ability to apply political pressure should not be a factor in the
proceedings of the ICJ. Pakistan may ask for a number of things which are in its interests,
such as blood money, a public apology, the withdrawal of US airpower or added judicial
oversight for accountability, among others.
ISSUES REGARDING THE CASE

We have compiled a general account of legal issues present in the drone campaign to aid
delegates in understanding this campaign in the context of international law. However,
delegates need to remember that the debate will be focus on Article 35 and thus the
conduct of war. They will thus need to consider the relevance of the issues they wish to use
for their case and prioritize their presentation accordingly.
WHAT IS THE NATURE OF THE WAR ON TERROR IN PAKISTAN?
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International Humanitarian Law (IHL) distinguishes two types of armed conflicts:

international armed conflicts, between two or more States, and non-international armed
conflict, which is between governmental forces and non-governmental armed groups, or
between such groups only. However, such distinctions are not always clear, such as in the
case of the War on Terror where we are dealing with a guerrilla non-state actor composed
of quasi-military combatants with the organizational capability of an army within the territory
of another country. Nonetheless, the distinction is not a significant issue because although
different legal principles apply to the two characterisations, there are some common
principles that can be applied to both. There is an identical Article 3 in all four Geneva
Conventions that states that the convention applies to both international and noninternational conflicts, i.e. all parties involved in the conflict are legally bound in all
circumstances to respect the life, dignity, bodily integrity and right to fair trial of any person
who is not taking active part in the conflict.
LAWS OF WAR

The Laws of War can be divided into two categories. The first, Jus Ad Bellum (Justice of
War), concerns itself with the lawfulness of the decision to resort to force against an enemy.
An international agreement limiting the justifiable reasons for a country to declare war
against another is concerned with jus ad bellum. Notably, the United Nations Charter binds
nations to seek resolution of disputes by peaceful means and requires authorization by the
United Nations before a nation may initiate any use of force against another (law
enforcement), beyond the inherent right of self-defense against an armed attack. There are
certain principles governing jus ad bellum, but they are not the focus of this case.
The second, Jus in Bello (Justice in War), or International Humanitarian Law, focuses on
what kind of conduct is acceptable in war which will be core of the case. The central tenet
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at play here is unnecessary wastage of life. Even though soldiers are under no legal duty to
ask their opponents to surrender, if they do surrender their offer is expected to be honoured
and that their well-being as a Prisoner of War and non-combatant of the conflict is to be
upheld. Moreover, provisions must be made for the wounded to be collected and tended to,
and that the dead and their bodies are to be treated with respect and in accordance to the
rites of the religion they belong to. The other set of obligations involve the treatment of
civilians. All human beings have the universal right to life, and no-one can be arbitrarily
deprived of his or her life. The reason why combatants can be deprived of life is because
that by participating in conflict, they have implicitly agreed to be harmed. Non-combatant
civilians have not made this agreement, and thus the deliberate targeting, or even
accidental killing by reckless conduct, of non-combatant civilians in all conflicts is illegal. In
fact, combatants of the armed conflict are often obliged to protect and look after them and
failing that, to ensure that the rights of the dead are appropriated to them. However, the
prevalent problem here is that the TTP operates in a region where it is hard to initially
distinguish innocent civilians from members of the TTP who are active combatants and
terrorists. If one cannot identify if a targets nature yet still goes on to attack the target, it
raises the issue on the universal human right to life and the question on if a person was
arbitrarily deprived of his or her life.
CONTROL, ACCOUNTABILITY AND FEEDBACK

Even if these principles are said to be followed, one needs to ask if there are judicial
processes and mechanisms to ensure that they are actualised and if a system of
accountability is in place. Before the strikes take place, does the USA take steps to ensure
that they can make the strike in the first place? Do they prepare and release detailed legal
justification for the strikes, and ensure that the strike is proportionate, precise and contained
by minimising civilian collateral damage? Have they respected the sovereignty of the host
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state, by informing them before the strikes occur? Do they stand up when scrutinised by not
only the US legal system, but the domestic laws of Pakistan and perhaps of the FATA as
well? During the strike, can the drone operators, thousands of miles away and far removed
from the battlefield, make the necessary moral and legal decisions to commit to the attack?
For example, can they verify if the targets are legitimate military ones and take the
necessary considerations to minimise collateral damage?
After the strike has been executed, is a system of feedback, such as independent
investigations into drone strike deaths, provided to show if the strikes broke any laws or
overstepped boundaries? Is the opportunity of follow up, such as prosecuting cases of
civilian casualties and compensation of civilians accidentally harmed by the US Strikes,
provided? Ultimately, justice is not merely about ideals and principles, but also about how
they are actualised.
EXAMPLE OF ANALYSIS

We have included in this section an example in which a law may be analysed and a case
created. The International Covenant on Civil and Political Rights (ICCPR) is part of the
International Bill of Human Rights. It commits its parties to respect the civil and political
rights of individuals. Both the US and Pakistan have both signed and ratified the ICCPR.
Part 3, Article 6, clause 1 of the ICCPR states that: Every human being has the inherent
right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his
life. The word arbitrary needs to be defined and defended by advocates as it will give
them the grounds to craft their cases from. For example, it can be agreed that although
every person is naturally deserving of life and their life should be protected, that the loss of
life can be justified depending on the context in which it was loss. For example, concerning
the drone campaign, it can be argued that the USA has callously broken this clause by
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bombing and injuring bystanders. However, the USA can also defend itself by arguing that
the deaths caused were not arbitrary, and that the USA did do due diligence, and the
deaths are justified.
A PICTORIAL RESOURCE

Predator Drone with Hellfire Missiles.

PTI Chairman Imran Khan at Rally

The Grand Jirga of elders at Peshawar

The SAF UAV Command emblem.

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Map of the region.

BIBLIOGRAPHY
News Websites
The Wall Street Journal
http://online.wsj.coml
Ground Report
http://www.groundreport.com

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The Guardian
http://www.guardian.co.uk

Business Recorder
www.brecorder.com

The frontier
http://www.thefrontierpost.com

Activist Sites

The Daily Beast

http://www.thedailybeast.com
International: The Statesman
www.thestatesmen.net
Dawn.com
http://dawn.com
The Express Tribune
http://tribune.com.pk
RT.com
http://rt.com
The Economist
www.economist.com

Living Under Drones

http://livingunderdrones.org
Reprieve
www.reprieve.org.uk
Naya Pakistan
www.insaf.pk
Fata Research Centre
http://frc.com.pk
Legal Publications
American Society of International Law
www.asil.org
Institute for Defence Studies and Analysis
http://www.idsa.in

Special thanks to members not part of the dials for contributions.

Fuad Johari, Huang Bin Hong, Lye Yuan Jun, Michelle Kang

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