TEAM NO.

25

COUNSEL FOR THE GOVERNMENT OF YUNKEL

ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE, 2016

WORD COUNT: 9,577

Original: English Date: 21 February,
2016
 THE APPEALS CHAMBER

SITUATION IN PORVOS

The Government Counsel’s Submission in the Appeal from the Pre-

Trial Chamber’s Decision on Jurisdiction and Motion to Disqualify
one of the Pre-Trial Chamber Judges

1
 TABLE OF CONTENTS

Index of Abbreviations...................................................................................................................................
3

Index of Authorities.........................................................................................................................................
5

Statement of Facts.........................................................................................................................................
19

Issues Raised....................................................................................................................................................
21

Summary of Arguments..............................................................................................................................
22

Arguments Advanced...................................................................................................................................
23

I. The recruitment and use of juvenile pirates by OSTY in attacks against the Porvos
aid
vessels cannot be tried under Art. 7 of the Rome Statute
........................................................................................................................................................................
23

a. Attacks on Porvosian-flagged vessels do not qualify as attacks against the civilian

population in the territory of Porvos
....................................................................................................................................................................
23

b. The parents of the juveniles consented to their participation in the piratical

excursions
26

c. The number of child pirates does not rise to Art. 7’s numerosity requirement
....................................................................................................................................................................
28

d. OSTY is not an entity capable of committing crimes under Art. 7

....................................................................................................................................................................
29

II. The contamination of Mirror Lake cannot be tried under Art. 8(2)(b)(iv) of the
Rome
Statute
 ........................................................................................................................................................................
31

a. No conduct by OSTY took place in the territory of Porvos

....................................................................................................................................................................
32

b. The contamination was not in the course of or in furtherance of an international

armed
conflict
....................................................................................................................................................................
33

c. The contamination did not result in widespread, long-term and severe damage
....................................................................................................................................................................
35

d. The injury was not excessive in relation to the concrete military advantage
anticipated
38

III. Judge Hasty should be disqualified from the present case

........................................................................................................................................................................
40

a. Yunkel has locus standi to request disqualification

....................................................................................................................................................................
40

b. The standard required for disqualification has been met

....................................................................................................................................................................
41

Concluding Submissions.............................................................................................................................
42

2
INDEX OF ABBREVIATIONS
¶

¶¶

Art.

Arts.

Doc.

ECHR

Ed.

Edn.

Eds.

ENMOD

et al

EU

ICC

ICJ

ICRC

ICTR

ICTY

Id.

ILA

ILC

J.

No.

OSTY
PCIJ
Paragraph

Paragraphs

Article

Articles

Document

European Commission on Human Rights

Editor

Edition

Editors

Convention on the Prohibition of Military or Any Other Hostile

Use of Environmental Modification Techniques

And others

European Union

The International Criminal Court

International Court of Justice

International Committee of the Red Cross

International Criminal Tribunal for Rwanda

International Criminal Tribunal for the former Yugoslavia

Ibidem

International Law Association

International Law Commission

Judge

Number

Olmic State of Tyvosh and Yunkel

Permanent Court of International Justice
3
Prof.

S.

UN

UNGA

UNSC

WHO
Professor

Section

United Nations

United Nations General Assembly

United Nations Security Council

World Health Organisation

4
 INDEX OF AUTHORITIES

Books and Articles

Acquaviva, G. Crimes against Humanity ¶ 11

and MAX PLANCK ENCYCLOPAEDIA OF PUBLIC
Pocar, F. INTERNATIONAL LAW (R. Wolfrum ed., 2010)

Adede, Protection of the Environment in Times of Armed ¶¶ 22, 23, 24

Andronico O. Conflict: Reflections on the existing and Future
Treaty Law
1 (1) ANNUAL SURVEY OF INTERNATIONAL &
COMPARATIVE LAW, 161 (1994)

Afriansyah, Arie Environmental Protection and State Responsibility ¶ 23

in International Humanitarian Law
7, INDONESIAN J. INT'L LAW, 242 (2010)

Akehurst, M. Jurisdiction in International Law ¶¶ 2, 3

46 BRITISH YEARBOOK OF INTERNATIONAL LAW, 145
(1972–3)

Akhavan, Payam Contributions of the International Criminal ¶8

Tribunals for the Former Yugoslavia and Rwanda to
Development of Definitions of Crimes against
Humanity and Genocide
94, AMERICAN SOCIETY OF INTERNATIONAL LAW,
279 (2000)

Ambos, Kai TREATISE ON INTERNATIONAL CRIMINAL LAW, VOL. ¶ 27

II (2014)

Angulo, A Community Waterborne Outbreak of ¶ 28

Frederick J. Salmonellosis and the Effectiveness of a Boil Water
Order
87(4) AMERICAN JOURNAL OF PUBLIC HEALTH, 580,
584 (1997)

5
 Barnes, Ashley The Arctic Environment and International ¶ 24
and Humanitarian Law
Waters, 49 Y.B. INT'L LAW, 213 (2011)
Christopher

Bassiouni, Cherif Crimes Against Humanity: The Case for a ¶ 11

M. Specialised Convention
9(4) WASH. U. GLOBAL STUD. L. REV., 575 (2010)

CRIMES AGAINST HUMANITY IN INTERNATIONAL ¶ 11

CRIMINAL LAW
nd
(2 edn., 1999)

THE LEGISLATIVE HISTORY OF THE INTERNATIONAL ¶ 11

CRIMINAL COURT: INTRODUCTION, ANALYSIS AND
INTEGRATED TEXT, VOL. 1
(2005)

Boister, N. AN INTRODUCTION TO TRANSNATIONAL CRIMINAL ¶5

LAW
(2012)

Boot, Machteld GENOCIDE, CRIMES AGAINST HUMANITY, WAR ¶8

CRIMES: NULLUM SINE LEGE AND THE SUBJECT
MATTER JURISDICTION OF THE INTERNATIONAL
CRIMINAL COURT
(2002)

Brownlie, Ian PRINCIPLES OF PUBLIC INTERNATIONAL LAW ¶5

(8th edn., 2012)

Carus, W. Seth BIOTERRORISM AND BIOCRIMES: THE ILLICIT USE OF ¶ 28

BIOLOGICAL AGENTS SINCE 1900
(2002)
6
Cassese, Antonio THE ROME STATUTE OF THE INTERNATIONAL ¶¶ 2, 3, 11
CRIMINAL COURT: A COMMENTARY, Vol. I
(2002)

Cullen, Holly Does The Ilo Have A Distinctive Role In The ¶7

International Legal Protection Of Child Soldiers?
5 HUM. RTS. & INT'L LEGAL DISCOURSE, 63 (2011)

DeGuzman, CRIMES AGAINST HUMANITY ¶8

Margaret M. ROUTLEDGE HANDBOOK OF INTERNATIONAL
CRIMINAL LAW, 121, 126 (William Schabas and
Nadia Bernaz eds., 2011)

Dormann, Knut War Crimes under the Rome Statute of the ¶ 17

International Criminal Court, with Special Focus on
the Negotiations on the Elements of Crimes
7 MAX PLANCK YEARBOOK OF UNITED NATIONS
LAW, 341 (2003)

Drumbl, Mark A. Child Pirates: Rehabilitation, Reintegration, and ¶ 23

Accountability
46(1) CASE WESTERN RESERVE JOURNAL OF
INTERNATIONAL LAW, 235, 239 (2014)

International Human Rights, International ¶¶ 4, 27

Humanitarian Law, and Environmental Security:
Can the International Criminal Court Bridge the
Gaps
6, ILSA J. INT'L & COMP. LAW, 305 (2000)

Dutton, Yvonne Bringing Pirates to Justice: A Case for Including ¶4

M. Piracy within the Jurisdiction of the International
Criminal Court
11 CHI. J. INT’L L.,197 (2011)
7
Duttweiler, Liability for Omission in International Criminal Law ¶ 15
Michael 58(1) INTERNATIONAL CRIMINAL LAW REVIEW, 1
(2006)

Fruili, Michaela Are Crimes against Humanity More Serious than ¶6

War Crimes?
12 EJIL, 329 (2001)

Glind H. and Modern-Day Child Slavery ¶6

Kooijmans, J. 22 CHILDREN & SOCIETY, 150 (2008)

Hansen, Thomas The Policy Requirement in Crimes Against ¶ 13

Obel Humanity: Lessons from and for the Case of Kenya
43(1) THE GEO. WASH. INT’L L. REV., 1 (2011)

Happold, Child Recruitment as a Crime under the Rome ¶¶ 6, 7

Matthew Statute of the International Criminal Court
THE LEGAL REGIME OF THE INTERNATIONAL
CRIMINAL COURT: ESSAYS IN MEMORY OF IGOR
BLISCHENKO (2009)

Haque, Adil Law and Morality at War ¶ 28

Ahmad 8(1) CRIMINAL LAW AND PHILOSOPHY, 79 (2014)

Harvard, Draft Convention on Jurisdiction with Respect to ¶¶ 2, 3

Research in Crime
International Law 29 AM. J. INT’L. L., 435 (1935)

Hoffman, Tamas Squaring the Circle? – International Humanitarian ¶ 17

Law and Transnational Armed Conflicts
HAGUE ACADEMY OF INTERNATIONAL LAW, 5 (2010)

Hulme, Karen WAR TORN ENVIRONMENT: INTERPRETING THE ¶ 25

LEGAL THRESHOLD
(2004)

8
Hwang, Phyllis Defining Crimes Against Humanity In The Rome ¶¶ 8, 11
Statute Of The International Criminal Court
22 FORDHAM INT'L L.J, 457 (1999)

ICRC Commentary on the Additional Protocols to the ¶¶ 23, 25, 27

Geneva Conventions
(1987)

Commentary on the Geneva Conventions of 12 ¶¶ 17

August 1949, Volume I
(1952)

Jalloh, C. What makes a Crime Against Humanity a Crime ¶ 13

Against Humanity
28 AM. U. INT'L L. REV, 381 (2013)

Jennings, R. The Limits of State Jurisdiction ¶3

THE COLLECTED WRITINGS OF SIR ROBERT JENNINGS
(1998)

Jescheck, Hans- The General Principles of International Criminal ¶ 13

Heinrich Law Set out in Nuremberg, as mirrored in the ICC
Statute
2 J. INT'L CRIM. JUST, 38 (2004)

Jorgenson, The Protection of Freshwater in Armed Conflict ¶ 24

Nikolai 3(2) JOURNAL OF INTERNATIONAL LAW AND
INTERNATIONAL RELATIONS 57 (2007)

Kraytman, Yana Universal Jurisdiction- Historical Roots and ¶4

Shy Modern Implications
2 BRUSSELS JOURNAL OF INTERNATIONAL STUDIES,
94, 103 (2005)
9
Kress, Claus On the Outer Limits of Crimes against Humanity: ¶¶ 12, 13
The Concept of Organization within the Policy
Requirement: Some Reflections on the March 2010
ICC Kenya Decision
23 LEIDEN JOURNAL OF INTERNATIONAL LAW, 855
(2010)

Lawrence, The First Ecocentric Environmental War Crime: ¶¶ 24, 27

Jessica The Limits of Article 8(2)(b)(iv) of the Rome Statute
20 GEO INTERNATIONAL ENVIRONMENTAL LAW
REVIEW, 61 (2008)

Luban, David Calling Genocide by its Rightful Name: Lemkin’s ¶9

Word, Darfur, and the UN Report
7 CHI. J. INT’L L., 1, (2006)

Maxwell, P. ON THE INTERPRETATION OF STATUTES ¶ 13

(6th edn.,1920)

O’Brien, Melanie Where Security Meets Justice: Prosecuting Maritime ¶4

Piracy in the International Criminal Court,
4 ASIAN JOURNAL OF INTERNATIONAL LAW, 81, 81
(2014)

Powderly, Joseph The Rome Statute and the Attempted Corseting of ¶ 13

the Interpretative Judicial Function
THE LAW AND PRACTICE OF THE INTERNATIONAL
CRIMINAL COURT (Carsten Stahn ed., 2015)

Robinson, Darryl Crimes Against Humanity at the Rome Conference ¶8

AMERICAN SOCIETY OF INTERNATIONAL LAW, 43
(1999)

Ryngaert, C. JURISDICTION IN INTERNATIONAL LAW ¶¶ 2, 3, 5

 nd
(2 edn., 2015)

10
Schabas, William AN INTRODUCTION TO THE INTERNATIONAL ¶¶ 5, 6, 15
th
A. CRIMINAL COURT (4 edn., 2011)

THE INTERNATIONAL CRIMINAL COURT: A ¶¶ 8, 11, 30

COMMENTARY TO THE ROME STATUTE (2010)

State Policy as an Element of International Crimes ¶ 13

98(3) THE JOURNAL OF CRIMINAL LAW AND
CRIMINOLOGY, 953 (1973)

Schmitt, Humanitarian Law and the Environment ¶ 24

28 DENVER JOURNAL OF INTERNATIONAL LAW AND
POLICY, 265 (2000)

Smith, Jennifer An International Hit Job: Prosecuting Organized ¶8

Crime Acts as Crimes Against Humanity
97(4) GEORGETOWN LAW JOURNAL, 1112 (2009)

Stewart, James Towards a single definition of armed conflict in ¶¶ 18, 19

G. international humanitarian law: A critique of
internationalized armed conflict
85 (850) INTERNATIONAL COMMITTEE OF THE RED
CROSS, 313 (2003)

Syring, Tom A pirate and a refugee: reservations and responses ¶4

in the fight against piracy
7 ILSA J. INT'L & COMP. L, 437, 448 (2011)

Tiefenbrun, Child Soldiers, Slavery, and the Trafficking of ¶7

Susan W. Children
TJSL Legal Studies Research Paper No. 1020341
(2007)
11
Tock, Shawn Recruiting and Using Children as Soldiers: The ¶6
Case for Defining the Offence as a Crime against
Humanity
13 DALHOUSIE J. LEGAL STUD., 157 (2004)

Török, Thomas J A large community outbreak of salmonellosis caused ¶ 28

by intentional contamination of restaurant salad
bars
278(5) JAMA 389, 393 (1997)

Vagias, M. THE TERRITORIAL JURISDICTION OF THE ¶¶ 3, 5, 15

INTERNATIONAL CRIMINAL COURT (2011)

Valentine, Trafficking of Child Soldiers: Expanding the United ¶7

Sandrine Nations Convention on the Rights of the Child and
its Optional Protocol on the Involvement of Children
in Armed Conflict
9 NEW ENG. J. INT'L & COMP., 109, 117 (2003)

Voneky, Silja Environment, Protection in Armed Conflict ¶ 23

MAX PLANCK ENCYCLOPEDIA ON PUUBLIC
INTERNATIONAL LAW (2011)

Werle G. and PRINCIPLES OF INTERNATIONAL CRIMINAL LAW ¶¶ 2, 13, 15

Jessberger, F. (3rd edn., 2014).

Willmott, Diedre Removing The Distinction Between International ¶ 23

And Non-International Armed Conflict In The Rome
Statute Of The International Criminal Court
5(1) MELBOURNE JOURNAL OF INTERNATIONAL LAW,
197 (2004)
12
Wyatt, Julian Law-making at the intersection of international
environmental, humanitarian and criminal law: the
issue of damage to the environment in international
armed conflict
92 (879) INTERNATIONAL REVIEW OF RED CROSS,
593 (2010)

Cases

ECHR W, X, Y and Z v. The U.K

[1997] ECHR 20

FRANCE In Re Feld and Newman

Cour de Cassation, 48 I.L.R 88 (May 25, 1967)

ICC Situation in the Republic of Kenya

Case No. ICC-01/09, Decision on the Authorization of an
Investigation March 31, 2010

The Prosecutor v. Abdallah Banda Abakaer Nourain and

Saleh Mohammed Jerbo Jamus Case No. ICC-02/05-03/09,
Decision on Disqualification of a Judge on April 2, 2012

The Prosecutor v. Jean-Pierre Bemba Gombo Case No. ICC-

01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on June 15, 2009

The Prosecutor v. Jean-Pierre Bemba Gombo Case No. ICC-

01/05-01/13, Decision on Disqualification of Judge Cuno
Tarfusser on June 20, 2014
13
 ¶ 24

¶7

¶3

¶ 11, 12, 13

¶ 31

¶ 13, 17, 20

¶ 31
 The Prosecutor v. Jean-Pierre Bemba Gombo Case No. ICC-
01/05-01/13, Defence request for leave to appeal on November
26, 2014

The Prosecutor v. Katanga et al

Case No. ICC-01/04-01/07, Decision on the
confirmation of charges on September 30, 2008

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

Decision on confirmation of charges of Pre-Trial Chamber I on January
29, 2007

The Prosecutor v. Thomas Lubanga Dyilo Case No. ICC-01/04-

01/06, Decision on Disqualification of Judge Sang-Hyun Song on
June 29, 2015

The Prosecutor v. Thomas Lubanga

Case No.ICC-01/04-01/06, Decision on ‘indirect
victims’ on April 8, 2009

ICJ Bosnia and Herzegovina v. Serbia and Montenegro

Case concerning application of the convention on
the prevention and punishment of the crime of
genocide
February 26, 2007

ICTY Prosecutor v. Blaskic

Case No. IT-95-14-T (ICTY), Judgment on March 3, 2000

The Prosecutor v. Fatmir Limaj et al.

Case No. IT-03-66-T, Trial Chamber II, Judgment
on November 30, 2005
14
 ¶ 30

¶ 18

¶ 17, 18, 20

¶ 31

¶3

¶ 20

¶ 20

¶¶ 8, 9, 11
 The Prosecutor v. Goran Jelisic ¶ 30
Case No. IT-95-10-A, Judgment on July 5, 2001

The Prosecutor v. Kunarac ¶¶ 7, 8

Case No. IT-96-23 & IT-96-23/1-A (ICTY),
Judgment on June 12, 2002

The Prosecutor v. Kupreskic ¶8

Case No. 1T-95-16-T, Judgment of Jan 14, 2000

The Prosecutor v. Tadic ¶8

Case No. IT-94-1-T (ICTY), Judgement of May 7,
1997

The Prosecutor v. Tadic ¶ 18

Case No. IT-94-1-A (ICTY), Decision on the
defence motion for interlocutory appeal on
jurisdiction on October 2, 1995

The Prosecutor v. Tadic ¶¶ 19, 20

Case No. IT-94-1-A (ICTY), Judgment on July 15,
1999

The Prosecutor v. Zlatko Aleksovski ¶ 20

Case No. IT-95-14/1-A, Judgment on March 24,
2000

PCIJ The Case of the S.S. “Lotus” (Turkey v. France) ¶¶ 2, 3

1927 PCIJ Ser. A No. 10, 23

SCSL Prosecutor v. Issa Hassan Sesay ¶ 31

Case No. SCSL-04-15-AR15, Decision on
Disqualification of Justice Robertson on March 2,
2009, Special Court for Sierra Leone
USA Doe v. Drummond ¶8
th
US Court of Appeals (11 Circuit, 2014)

15
 Legal Acts and Rules

ADDITIONAL Protocol Additional to the Geneva Conventions of ¶¶ 6, 22

PROTOCOL I 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol
I)
8 June 1977

ADDITIONAL Protocol Additional to the Geneva Conventions of ¶6

PROTOCOL II 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts
(Protocol II)
8 June 1977

CRIMINAL Criminal Justice Act (UK), 1992 ¶3

JUSTICE ACT

ELEMENTS OF Elements of Crimes of the International Criminal ¶¶ 3, 6, 13, 15, 27

CRIMES Court, ICC-ASP/1/3

ENMOD Convention on the Prohibition of Military or Any ¶ 22

CONVENTION Other Hostile Use of Environmental Modification
Techniques, United Nations (May 18, 1977)

GENEVA Convention (I) for the Amelioration of the ¶ 17

CONVENTION I Condition of the Wounded and Sick in Armed
Forces in the Field
Geneva, August 12, 1949

OPTIONAL Optional Protocol to the Convention on the Rights ¶6

PROTOCOL TO of the Child on the Involvement of Children in
THE CRC Armed Conflict
(February 12, 2002)
16
PALERMO Protocol to Prevent, Suppress and Punish
PROTOCOL Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against
Transnational Organized Crime U.N. Doc. A/55/383 (November 15,
2000)

ROME STATUTE Rome Statute of the International Criminal Court

(July 1, 2002)

RULES OF Rules of Procedure and Evidence

PROCEDURE AND International Criminal Court, U.N. Doc.
EVIDENCE PCNICC/2000/1/Add.1 (2000)

UNCLOS United Nations Convention on the Law of the Sea

(1982)

Other Sources

AMNESTY Universal Jurisdiction: The Duty of States to Enact

INTERNATIONAL and Implement Legislation
AI Index: IOR 53/002/2001

CCD REPORT Report of the Conference of the Committee on

Disarmament, Vol. I
U.N. Doc. A/31/27 (1976)

ICRC How is the Term “Armed Conflict” Defined in

International Humanitarian Law?
ICRC Opinion Paper (March 2008)

ICRC Report on International Humanitarian Law

and The Challenges of Contemporary Armed
Conflicts
03/IC/09 (2003)

17
 ¶7

¶ 2, 4, 6, 7, 8, 10, 13, 30, 31

¶ 30, 31

¶4

¶4

¶ 22, 23

¶ 22

¶ 26, 27
 ICRC Report on International Humanitarian Law ¶¶ 17, 27
and the challenges of contemporary armed conflicts
31IC/11/5.1.2 (2011)

ICRC Statement of 8 July 1998 Relating to the ¶ 27

Bureau Discussion Paper in Document
A/CONF.183/C.1 /L.53, UN Doc.
A/CONF.183/C.1/L.53

ILA Final Report on the Meaning of Armed Conflict in ¶ 17

International Law
Use of Force Committee (2010)

NHS Overview of Salmonella Infection ¶ 25

available at:
http://www.nhs.uk/Conditions/salmonella-
infection/Pages/Introduction.aspx/

th
COMMITTEE ON Report of the Committee on Child Labour, 87 ¶7
CHILD LABOUR Session of International Labour Conference (1999)

UN WAR CRIMES United Nations War Crimes Commission Project ¶8

COMMISSION (1942)

WHO WHO Guidelines for Drinking-water Quality: ¶ 28

Recommendations
(2008)
18
 STATEMENT OF FACTS

Porvos, a party to the ICC Statute since 2002, shares its boundaries with Tyvosh and
Yunkel. Tyvosh and Yunkel have not ratified the ICC Statute. All three are democratic
countries and have no army or navy.

For the past 5 years, Yunkel has been the base of the Olmic State of Tyvosh and Yunkel
(OSTY), an organization that seeks to establish an autonomous Olmic state in the
southern portion of Yunkel and all of Tyvosh. OSTY was formed in 2010 and is led by
Lance Raider, a national of Yunkel, who has helped OSTY purchase millions of dollars’
worth of weapons through his inherited property. Since its formation, OSTY’s
membership has increased to over 50,000 members.

In January 2014, OSTY forces indigenous to Tyvosh launched a coordinated series of

attacks which resulted in its gaining control over all of the territory of Tyvosh with the
exception of its capital, Quirth. In April, 2014, Porvos commenced shipments of
humanitarian aid to Quirth, at the request of Tyvosh’s government. In order to bring a halt
to these shipments, OSTY converted two dozen vessels from Lance Raider’s shipping
fleet into pirate ships and launched a series of attacks against the Porvosian aid vessels.
The attacks were launched in June 2014, and took place on the high seas between Sylaria
and Quirth. By February 2015, OSTY had successfully captured 30 Porvos-flagged
vessels, taken 550 Porvosian crew members hostage and ransomed them, and confiscated
$10 million worth of cargo.

In these attacks, OSTY used approximately 2,000 pirates. Around half of these pirates
were under the age of fourteen. These juvenile pirates were systematically recruited by
Lance Raider and his OSTY lieutenants, who contracted to share a percentage of the
piratical booty with the parents of the juveniles. In February 2015, the Porvosian vessels
bound for Quirth began to employ armed private security forces. These security forces
successfully repelled many of the pirate attacks. An estimated 1,000 pirates, including
500 juveniles, were killed in these skirmishes.

In March 2015, OSTY announced that it would poison the rivers that feed Mirror Lake,
which supplied half of Porvos’ fresh water, unless Porvos ceased its aid shipments. When
Porvos refused, OSTY contaminated the rivers with Salmonella, which resulted in an
outbreak of illness, causing 50 deaths and 3,000 hospital visits. Most of the victims were
among the frail

19
elderly and young children. The shipments were halted by Porvos with immediate effect
after the attack.

On April 10, 2010, the Office of the Prosecutor requested the Pre-Trial Chamber for
authorization to investigate whether OSTY committed international crimes within the
jurisdiction of the ICC:

a) by recruiting and using child pirates in attacks against Porvosian vessels as a

crime against humanity; and

b) by contaminating Porvos’ water supply, as a war crime under Art.8(2)(b)(iv) of

the ICC Statute.

The Counsel for the Government of Yunkel raised the following objections:

First, the recruitment and use of juvenile pirates by OSTY could not constitute a crime
against humanity under Art.7 of the Court’s Statute;

Second, the contamination of Mirror Lake could not constitute a war crime under Art.8(2)
(b)(iv) of the ICC Statute;

Third, Judge Rosemelle Hasty, one of the three members of the Pre-Trial Chamber, must
be disqualified from the case under Arts.40 & 41 of the ICC Statute because she had
earlier published an opinion stating that the ICC could try the recruitment and use of
juvenile pirates as a crime against humanity, in the context of Somalian Piracy.

The Pre Trial Chamber, after duly considering all the submissions and arguments:

a) Declined to disqualify Judge Hasty;

b) Ruled that, if proven, the recruitment and use of juvenile pirates by OSTY could
be tried as a crime against humanity under Art.7 of the Court’s Statute;

c) Ruled that, if proven, the intentional contamination of Porvos’ water supply could
be tried as a war crime under Art.8(2)(b)(iv) of the Court’s Statute.
Consequently, the Pre-Trial Chamber authorized the Prosecutor to investigate the
aforementioned crimes. Yunkel has appealed against this decision.

20
 ISSUES RAISED

Whether recruitment and use of juvenile pirates by a non-state organization under the
facts stipulated in this case can be tried as a crime against humanity within the
jurisdiction of the International Criminal Court under Article 7 of the ICC Statute;

II

Whether a non-state organization’s cross-border contamination of a State’s water supply

resulting in over 3,000 cases of illness, can constitute the war crime under Article 8(2)(b)
(iv) of “widespread, long-term and severe damage to the natural environment which
would be clearly excessive in relation to the concrete and direct overall military
advantage anticipate” under the facts stipulated in this case;

III

And whether a judge who wrote a passage in a book when she was a law professor prior
to appointment to the ICC that opines on the issue of whether recruitment and use of
juvenile pirate can be tried by the ICC as a crime against humanity must be disqualified
from the Pre-Trial Chamber in this case
21
 SUMMARY OF ARGUMENTS

I. The recruitment and use of juvenile pirates by OSTY in attacks against the Porvos aid
vessels cannot be tried as a crime against humanity under Art. 7 of the Rome Statute. This is
because the recruitment and use of the juvenile pirates did not occur on Porvosian territory.
Further, the attacks directed against the Porvosian vessels did not rise to the gravity of the
crimes listed in Art. 7. In any case, the crime of enslavement cannot be made out since the
parents of the juveniles consented to their participation. The consensual recruitment and use
of juveniles cannot amount to trafficking or slave-like treatment. Additionally, only 1000
juvenile pirates were recruited, from across the entire population of Tyvosh and Yunkel. This
does not meet the numerosity requirement of a “widespread” or “systematic” attack under
Art.
7. Finally, OSTY is not an entity capable of committing crimes against humanity under
Art. 7, since it is not a state or parastatal organization. In any case, the requirement of an
“organization” should be narrowly construed to exclude OSTY, as per the principle of in
dubio pro reo.

II. The contamination of Mirror Lake by OSTY cannot by tried as a war crime under Art.
8(2)(b)(iv) of the Rome Statute. The ICC has jurisdiction only over criminal “conduct”
that occurs on the territory of a state party. In the present case, the criminal conduct of
poisoning the rivers occurred outside the territory of Porvos, and thus, territorial
jurisdiction over the alleged crime is not established. Further, the contamination was not
in furtherance of an international armed conflict, as required under Art.8(2)(b). This is
because international armed conflict can only be between states, and OSTY’s acts are not
attributable to any state. In any case, the contamination did not cause widespread, long-
term, and severe damage, because Salmonella does not have severe effects on human
health, and the spread of the illness was limited in temporal and geographic scope.
Finally, the attack was not excessive in relation to the concrete and direct military
advantage perceived by OSTY. This is because OSTY’s honest, subjective perception that
the contamination would lead to the halting of the aid shipments is sufficient to meet the
test of proportionality under Art. 8(2)(b)(iv).
III. Judge Hasty should be disqualified under Arts. 40 and 41 of the Rome Statute
because her impartiality has been adversely affected. This is because she has previously
published an opinion on the issue of whether the recruitment and use of juvenile pirates
would amount to a crime under Art. 7 of the Rome Statute, which is a matter directly in
issue in the present case.

22
 ARGUMENTS ADVANCED

I. The recruitment and use of juvenile pirates by OSTY used in attacks against
Porvosian flagged commercial vessels cannot be tried as a crime against humanity
under Article 7 of the Court’s Statute.
1 Juveniles were recruited from Tyvosh and Yunkel for a year of piratical service by
Lance
Raider and his lieutenants.1 However, the recruitment and use of these juvenile
pirates cannot be tried as a crime against humanity under Art. 7 of the Rome Statute
because the attacks on Porvos-flagged vessels in the high seas do not qualify as
attacks against a civilian population in the territory of Porvos [a]. In any case, the
parents of the juveniles consented to their participation in the piratical excursions
[b]. Further, the number of child pirates does not rise to Article 7’s implicit
“numerosity requirement” [c]. Finally, OSTY is not an entity capable of committing
crimes against humanity [d].

a. attacks on Porvosian-flagged vessels in the high seas does not qualify as attacks
against the civilian population in the territory of Porvos under Article 7 of the ICC
Statute

According to Article 7 (2)(a) of the ICC Statute, ‘Attack directed against any
civilian population’ means a course of conduct involving the multiple commission
of acts referred to in paragraph 1 against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such attack. The attack
made by the OSTY was directed against the Porvosian-flagged vessels in the high
seas and not against a civilian population. Therefore, based on the above
provision, the attack is not considered a crime against humanity.

According to the principle of abstention, a neutral state must abstain from taking
part in the hostilities and from giving assistance to either belligerent (Duka,
2017).
Based on the above principle, Porvos, being a neutral state, had the duty to abstain
from giving assistance to Tyvosh. Therefore, the attacks by the OSTY against the
Porvosian-flagged vessels was only made in the exercise of its right of angary, or
“the right of a belligerent state or party in cases of urgent necessity to destroy or
use a neutral property on its own or enemy’s territory, or on the high seas.” (Duka,
2017) and should not be considered as a crime against humanity.

(b) the parents of the juveniles consented to their participation in the piratical
excursions;
-According to Article 19(1) of the United Nations Convention on the Rights of
the Child, “States Parties shall take all appropriate legislative, administrative,
social and educational measures to protect the child from all forms of physical or
mental violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the care of the child.”
This clause may be particularly relevant in cases where a child’s parents have
forced him or her to participate in piratical activity, or where the State is
responsible for detaining, interrogating, trying and/or incarcerating a captured
child pirate. (https://en.wikipedia.org/wiki/Child_pirate) Therefore, based on the
above provision, children, while in the care of parents should be protected from
exploitation, such as being forced by their parents to commit criminal acts.
By applying the said provision in the given case, we can conclude that the parents
of the juvenile pirates who consented in the latter’s participation in piratical
excursions should be the ones liable the said criminal act. According to Article 26
of the ICC Statute, the Court shall have no jurisdiction over any person who was
under the age of 18 at the time of the alleged commission of a crime. The juvenile
pirates are under the age of 18. Therefore, based on the above provision, the ICC
has no jurisdiction over the case. According to the UN Guidelines for Action on
Children in the Criminal Justice System, as recommended by the Economic
and Social Council resolution 1997/30 of 21 July 1997, particular attention should
be given to the following points:
(a) There should be a comprehensive child-centred juvenile justice process;
(b) Independent expert or other types of panels should review existing and
proposed juvenile justice laws and their impact on children;
(c) No child who is under the legal age of criminal responsibility should be
subject to criminal charges;
(d) States should establish juvenile courts with primary jurisdiction over juveniles
who commit criminal acts and special procedures should be designed to take into
account the specific needs of children. As an alternative, regular courts should
incorporate such procedures, as appropriate. Wherever necessary, national
legislative and other measures should be considered to accord all the rights of and
protection for the child, where the child is brought before a court other than a
juvenile court, in accordance with articles 3, 37 and 40 of the Convention.
(http://www.ohchr.org/EN/ProfessionalInterest/Pages/CriminalJusticeSystem.aspx
)

Based on the above guidelines, children involved in criminal acts should be under
the jurisdiction of a child-oriented juvenile justice system that protects the rights
of children. Therefore, juvenile pirates should not be under the jurisdiction of the
ICC.

(c) the number of child pirates does not rise to Article 7’s implicit “numerosity
requirement”
 (d) OSTY is not a government or non-state and is therefore incapable of
committing crimes against humanity.”

According to Article 12 of the ICC Statute, regarding preconditions to the

exercise of jurisdiction:
xxx
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its
jurisdiction if one or more of the following States are Parties to this
Statute or have accepted the jurisdiction of the Court in accordance with
paragraph 3:
xxx

The OSTY is a non-state organization. Based on the above provision, the

jurisdiction of ICC only covers states. A similar situation can be seen from the
current issue of which court should have jurisdiction over the crimes committed in
Syria and Iraq by the ISIS, a non-state organization like the OSTY. According to
news reports, the ICC cannot have jurisdiction over the ISIS since the states of
Syria and Iraq are not parties to the ICC.
(http://www.rudaw.net/english/kurdistan/300420151).

1 ¶ 7, The Problem.

2 ¶ a, The Problem.

3 The Case of the S.S. “Lotus” (Turkey v. France) 1927 PCIJ Ser. A No. 10, 23; M Akehurst,
Jurisdiction in International Law, 46 BRITISH YEARBOOK OF INTERNATIONAL LAW, 145, 152 (1972–3);
Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29
AM. J. INT’L. L., 435, 445 (1935); A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT: A COMMENTARY, Vol. I, 567 (2002); C. Ryngaert, JURISDICTION IN INTERNATIONAL LAW, 78 (2nd
edn., 2015).
4 Art. 7(2)(a), Rome Statute of the International Criminal Court (July 1, 2002) (“Rome Statute”); G.
Werle & F. Jessberger, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 333 (3rd edn., 2014).
5 Art. 7(2)(a), Rome Statute.
23
c. The number of child pirates does not rise to Art. 7’s numerosity requirement

8 The contextual requirement of a crime against humanity under Art 7 is that it should
have
35
been part of a “widespread or systematic” attack against any civilian population.
The requirement of a “widespread” or “systematic” attack indicates that Art. 7 is
concerned with
the perpetration of criminal acts on a very large scale. 36 Further, the requirement that
the attack be directed against a civilian population also implies an element of
scale.37 Where a substantial number of victims are targeted, an attack can be said to
be directed against a
“population” rather than against individuals. Thus, the number of victims is an
indicator of whether an attack is widespread or systematic and directed against a

civilian population.38

9 In Limaj, the ICTY trial chamber found that even hundreds of abductions carried out
by the
39
KLA did not constitute a widespread or systematic attack against a civilian population.
This was because the abductions were relatively few in number, “in the context of the
population of
40
Kosovo as a whole.” Hence, the persons affected by the attack must be viewed in the
41
context of the civilian population of the relevant territory. In the present case, around
1000 juveniles

35Art. 7(1), Rome Statute.

36The Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A (ICTY), Judgment on June 12,
2002, ¶94; The Prosecutor v. Tadic, Case No. IT-94-1-T (ICTY), Judgement of May 7, 1997, ¶648;
The Prosecutor v. Kupreskic, Case No. 1T-95-16-T, Judgment of January 14, 2000, ¶ 543; Margaret
M. DeGuzman, CRIMES
AGAINST HUMANITY IN ROUTLEDGE HANDBOOK OF INTERNATIONAL CRIMINAL LAW, 121, 126 (William
Schabas and Nadia Bernaz eds., 2011); William Schabas, T HE INTERNATIONAL CRIMINAL COURT: A
COMMENTARY ON
THE ROME STATUTE, 147 (2010); Machteld Boot, G ENOCIDE, CRIMES AGAINST HUMANITY, WAR
CRIMES: NULLUM SINE LEGE AND THE SUBJECT MATTER JURISDICTION OF THE INTERNATIONAL CRIMINAL
COURT (2002); Payam Akhavan, Contributions of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda to Development of Definitions of Crimes against Humanity and Genocide, 94,
AMERICAN SOCIETY OF INTERNATIONAL LAW, 279, 280 (2000); Jennifer M. Smith, An International Hit
Job: Prosecuting Organized Crime Acts as Crimes Against Humanity, 97(4) GEORGETOWN LAW JOURNAL,
1112, 1136 (2009); Phyllis Hwang, Defining Crimes Against Humanity In The Rome Statute Of The
International Criminal Court, 22 FORDHAM INT'L L.J, 457, 502 (1999).
37The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II, Judgment on
November 30, 2005, ¶ 218; Doe v. Drummond, Amicus curiae brief, US Court of Appeals (11th
Circuit, 2014); UNITED NATIONS WAR CRIMES COMMISSION PROJECT, 193 (1942); Darryl Robinson,
Crimes Against Humanity at the Rome Conference, AMERICAN SOCIETY OF INTERNATIONAL LAW, 43, 47
(1999).

38The Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A (ICTY), Judgment on June 12,
2002, ¶ 95.

39The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II, Judgment on
November 30, 2005, ¶¶ 209, 210.

40The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II, Judgment on
November 30, 2005, ¶ 210.

41David Luban, Calling Genocide by its Rightful Name: Lemkin’s Word, Darfur, and the UN Report ,
7 CHI. J. INT’L L., 1, 10 (2006).

28
 42
have been recruited from the territories of both Tyvosh and Yunkel. However, the
43
combined population of these two countries is 2.5 million. In this context, the
number of juvenile pirates is too low, and the recruitment too geographically
44
diverse, to indicate a “widespread” or “systematic” attack directed against any
civilian population. Thus, the number of child pirates does not fulfill Art. 7’s
numerosity requirement.

d. OSTY is not an entity capable of committing crimes under Art. 7

10 For an attack to fall under Art. 7 of the Rome Statute, it should have been committed
pursuant
to or in furtherance of a “State or organizational policy” to commit such attack.45
This lays down a test for determining whether an entity is capable of committing
crimes against humanity. In the present case OSTY is not an entity capable of
committing crimes under Art. 7, because it is not a state or parastatal entity [1]. In
any case, Art. 7 should be construed strictly to exclude organisations such as OSTY
[2].

1. Only state and parastatal entities are capable of committing crimes under
Art. 7

11 Crimes against humanity are essentially concerned with the abuse of power by state
46
actors. Prof. Cherif Bassiouni, who chaired the drafting committee at the Rome
Conference, has
47
clarified that the test of Art. 7(2) does not refer to non-state actors. The words
“organizational policy” were intended to include policies of organisations within a
state, such

42¶ 7, The Problem.

43¶ 1, The Problem.

44The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Chamber II, Judgment on
November 30,
2005, ¶ 218.
45Art. 7(2), Rome Statute.

46C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW, 202 (2nd edn., 1999);
A. Cassese, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, Vol. I, 360
(2002); W. Schabas, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY,
152 (2010); G. Acquaviva and F. Pocar, Crimes against Humanity in MAX PLANCK ENCYCLOPAEDIA OF
PUBLIC INTERNATIONAL
LAW, ¶ 1 (R. Wolfrum ed., 2010); The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial
Chamber II, Judgment on November 30, 2005, ¶ 212; Phyllis Hwang, Defining Crimes Against
Humanity In The Rome Statute Of The International Criminal Court, 22 FORDHAM INT'L L.J, 457, 499
(1999).

47C. Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW, 244-245 (2nd edn.,
1999); M. Cherif Bassiouni, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT:
INTRODUCTION, ANALYSIS AND INTEGRATED TEXT, VOL. 1, 151-152 (2005).

29
 48
as the military, intelligence, or police. Thus, OSTY, being a non-state entity, was
not intended to be covered by the language of Art. 7(2). At most, an “organisation”
under Art. 7(2) may refer to a “state-like” non-state entity. 49 A “state-like” entity is
one that is under responsible command with a certain degree of hierarchical
50
structure, including some kind of policy level. OSTY does not meet such a
characterization, since there is no “hierarchical structure” or “policy level” as all
military and political decisions are taken by one person alone.51

12 The prosecution may argue that the majority decision in the Kenya authorization
decision should be followed, which did not restrict the meaning of organisation to
state-like actors. As per the majority, any organisation that “has the capability to
perform acts which infringe on
basic human values" meets the test of Art. 7(2). 52 This definition should not be
adopted, as it would mean that any entity that carried out an attack in accordance
with Art. 7(1) would meet the definition of “organisation.” In other words, it renders
the separate contextual requirement
53
of “organizational policy” under Art. 7(2) redundant. In any case, the majority
decision stressed that the determination of whether a given group qualifies as an
“organisation” under
the statute must be made on a case-by-case basis. 54 There are significant factual
differences between the non-state actors in the Kenya case and OSTY. For instance,
in the situation in Kenya, the non-state organisation had received significant
55
assistance from state entities.

48
C. Bassiouni, Crimes Against Humanity: The Case for a Specialised Convention, 9(4) WASH. U.
GLOBAL STUD. L. REV., 575, 585 (2010).

49Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an
Investigation (J. Kaul’s Dissenting Opinion) on March 31, 2010, ¶51; W.A. Schabas, T HE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 972 (2010).

50Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an
Investigation (J. Kaul’s Dissenting Opinion) on March 31, 2010, ¶51.

51¶3, The Problem.

52Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an
Investigation on March 31, 2010, ¶ 90;

53Claus Kress, On the Outer Limits of Crimes against Humanity: The Concept of Organization
within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 LEIDEN
JOURNAL OF INTERNATIONAL LAW, 855, 859 (2010).

54Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an
Investigation on March 31, 2010, ¶ 93;

55Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an
Investigation on March 31, 2010, ¶¶ 116 -128;

30
 Since the same does not hold true for OSTY, this test cannot be automatically
transplanted to the present factual situation.

2. In any case, Art. 7 should be interpreted in favour of OSTY

13 As per Art. 22(2) of the Rome Statute, if there is any ambiguity in the definition of a
crime, the definition shall be interpreted in favour of the person being prosecuted,
investigated, or
56
convicted. This principle of in dubio pro reo (“when in doubt, for the accused”) is
applicable even to the pre-trial stage in determining the probability of an offence
having
57
occurred. The requirement of a state or organizational policy is an important
contextual element of the crimes under Art. 7.58 However, the scope of
“organisation” remains ambiguous, due to inconsistent case law and clear
disagreements in by scholars in the field. 59 Because of this, a restrictive
60
interpretation of the term should be adopted, and the meaning of organisation
should be confined to entities that exhibit state-like features. Thus, OSTY does not
amount to an “organisation” capable of committing crimes against humanity within
the meaning of Art. 7.

II. The contamination of Mirror Lake cannot be tried under Art. 8(2)(b)(iv) of
the Rome Statute
14 Mirror Lake is a source of fresh water in Porvos, bordering the capital city of
Dothran. In March 2015, OSTY threatened to poison the rivers in Yunkel that fed
into Mirror Lake unless

56Art. 22(2), Rome Statute; ¶ 1, Introduction to Art. 7, Elements of Crimes, 5.

57The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to
Article 61(7)(a) and (b) of the Rome Statute on June 15, 2009, ¶ 31.

58Art. 7(2)(a), Rome Statute; Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on
the Authorization of an Investigation on March 31, 2010, ¶ 79;

59Situation in the Republic of Kenya, Case No. ICC-01/09, Decision on the Authorization of an
Investigation on March 31, 2010, ¶79; William A. Schabas, State Policy as an Element of
International Crimes, 98(3) THE JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, 953, 954 (1973);
Thomas Obel Hansen, The Policy Requirement in Crimes Against Humanity: Lessons from and for
the Case of Kenya, 43(1) THE GEO. WASH. INT’L L. REV., 1, 1(2011); C. Jalloh, What makes a Crime
Against Humanity a Crime Against Humanity, 28 AM. U. INT'L L. REV, 381, 409 (2013); G. Werle &
F. Jessberger, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 1155 (3rd edn., 2014); Claus Kress, On
the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy
Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 LEIDEN JOURNAL OF
INTERNATIONAL LAW, 855, 859 (2010)

60P Maxwell, ON THE INTERPRETATION OF STATUTES, 491 (6th edn.,1920); Joseph Powderly, The Rome
Statute and the Attempted Corseting of the Interpretative Judicial Function in THE LAW AND PRACTICE
OF THE INTERNATIONAL CRIMINAL COURT (Carsten Stahn ed., 2015).

491; Hans-Heinrich Jescheck, The General Principles of International Criminal Law Set out in
Nuremberg, as mirrored in the ICC Statute, 2 J. INT'L CRIM. JUST, 38, 41 (2004).

31
 Porvos halted its aid shipments to Tyvosh. When Porvos refused, OSTY
contaminated the water with Salmonella, leading to an outbreak of Salmonella-

caused illness in Dothran that lasted three weeks.61 This act of contamination cannot
be tried as a war crime under Art. 8(2)(b)(iv) because: no conduct by OSTY took
place in the territory of Porvos [a]; the contamination was not in the course of or in
furtherance of an international armed conflict [b]; the damage caused by the
contamination was not widespread, long-term and severe [c]; and, the injury was not
excessive in relation to the concrete military advantage anticipated [d].

The contamination of Mirror Lake cannot be deemed a war crime in the territory of
Porvos in violation of Article 8(2)(b)(iv) of the Court’s Statute because:

(a) no action by OSTY took place in the territory of Porvos,

-According to Article 4(2) of the ICC Statute, regarding the legal status and powers of
the Court:
xxx
2. The Court may exercise its functions and powers, as provided in this Statute, on
the territory of any State Party and, by special agreement, on the territory of any
other State.
In the given case, the contamination was made by poisoning the rivers that feed into
Mirror Lake from the Yunkel side of the border. The said action took place in Yunkel,
which is not a State Party of the ICC Statute.
Based on the above provision, the ICC cannot exercise its functions and powers on the
territory of Yunkel since it is not a State Party to the ICC Statute.
(b) the contamination of the river did not take place in the course of and in furtherance of
an international armed conflict; (needs legal basis)
(c) the injury caused by the contamination was not widespread, long-term and severe; and
-The outbreak of the Salmonella-caused illness lasted only for three weeks. Therefore, the
injury caused by the contamination was not widespread, long-term and severe.
(d) in the alternative, the injury was not excessive in relation to the concrete military
advantage anticipated.”
-According to Article 15 of the Lieber Code, the doctrine of military necessity is as
follows:
Military necessity admits all direct destruction of life or limb of armed enemies,
and of other persons whose destruction is incidentally unavoidable in the armed
contests of the war, it allows the capturing of every armed enemy, and every
enemy of importance to the hostile government, or of peculiar danger to the
captor, it allows of all destruction of property, and obstruction of the ways and
channels of traffic, travel, or communication, and of the appropriation of whatever
an enemy’s country affords necessary for the subsistence and safety of the army,
and of such deception as does not involve the breaking of good faith either
 positively pledge, regarding agreements entered into during the war, or supposed
by the modern law of war to exist. Men who take up arms against one another in
public war do not cease on this account to be moral beings, responsible to one
another and to God.
Yunkel lost 1,000 pirates during their battle with Porvos’s armed private security forces.
Having lost a large number of combatants, Yunkel had the need to offset their lost
combatants by contaminating with salmonella the water supply of Porvos.
-According to the principle of proportionality, belligerents must make sure that the
harm caused to civilians or civilian property is not excessive in relation to the concrete
and direct military advantage expected by an attack on a legitimate military objective.
(Moreno-Ocampo, 2006)
The contamination with salmonella of the water supply of Porvos is not excessive in
relation to the concrete and direct military advantage sought by Yunkel. Only 50 deaths
resulted from the outbreak, which is significantly lower than the 1,000 deaths of the
pirates from Yunkel.

a. No conduct by OSTY took place in the territory of Porvos

15 Art. 12(2)(a) of the Rome Statute confers jurisdiction on the ICC when the “conduct
in question” occurs on the territory of a state party. The term “conduct” is used in
contradistinction to the term “crime.” 62 Art. 20 and Art. 30 of the Rome Statute also
use the terms conduct and crime as distinct from each other. Further, the preamble to
the Elements of Crimes, defines conduct as one of the three components of a crime,
along with consequences
63
and circumstances. The prosecution may argue that “conduct” in Art. 12 should be
read broadly to include even the consequences of such conduct. This interpretation
cannot be
64
accepted, as Art. 12 should be strictly construed, in accordance with the principle of
65
legality. Thus, the ICC may exercise territorial jurisdiction over the alleged crime only
if the conduct constituting such crime occurred in the territory of Porvos. The conduct
constituting
66
the crime under Art.8(2)(b)(iv) occurs where “the perpetrator launched an attack.”
In the present case, the attack was launched by OSTY by poisoning the rivers on the
Yunkel side of the border. Thus, the relevant conduct did not occur in the territory of
Porvos.
61¶ 9, The Problem.

62 G. Werle & F. Jessberger, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 171 (3rd edn., 2014);
Michael Duttwiler, Liability for Omission in International Criminal Law, 58(1) INTERNATIONAL
CRIMINAL LAW REVIEW, 1, 58 (2006).

63¶ 7, Elements of Crimes, 1.

64W.A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 82 (4th edn., 2011).

65M. Vagias, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT, 144 (2011).

66Element 1 of Art.8(2)(b)(iv), Elements of Crimes, 19.

32
 b. The contamination was not in the course of or in furtherance of an
international armed conflict
16 Art. 8(2)(b) is concerned with violations of the laws and customs applicable in
international armed conflict. Thus, in order for a war crime to be tried under this
provision, it must have occurred in the course of an international armed conflict. In
the present case, the contamination of Mirror Lake by OSTY was intended to bring a
halt to the shipment of
67
humanitarian aid from Porvos to Quirth. Thus, the resultant conflict involved
OSTY on one side against the states of Tyvosh and Porvos on the other. However,
this conflict did not amount to an international armed conflict, because it was not
between states.

17 The most widely accepted definition of international armed conflict is found in

Common
68
Article 2 of the Geneva Conventions, which speaks of armed conflict which may
arise between two or more states. 69 Thus, the fundamental characteristic
distinguishing international armed conflict from non-international armed conflict is
that it must occur
70
between two or more states. The hostilities between OSTY and the forces of
Tyvosh and Porvos do not amount to an international armed conflict because OSTY
is not a State. OSTY
has been variously characterized as a band of pirates and criminals, a terrorist

organisation, and a paramilitary group.71 Thus, at best, it constitutes a non-state

armed group.

18 In the present case, OSTY forces indigenous to Tyvosh have been engaged in a siege
of
72
Quirth, the capital city of Tyvosh. This conflict squarely meets the criteria of a
non-

67¶ 9, The Problem.

68The Prosecutor v. Thomas Lubanga, Case No. ICC-01/04-01/06, Decision on confirmation of

charges of Pre-Trial Chamber I on January 29, 2007, ¶207; Knut Dormann, War Crimes under the
Rome Statute of the International Criminal Court, with Special Focus on the Negotiations on the
Elements of Crimes, 7 MAX
PLANCK YEARBOOK OF UNITED NATIONS LAW, 341, 358 (2003).

69Art. 2, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Geneva, August 12, 1949.

70Tamas Hoffmann, Squaring the Circle? – International Humanitarian Law and Transnational
Armed Conflicts, HAGUE ACADEMY OF INTERNATIONAL LAW, 5 (2010); ICRC Report on International
Humanitarian Law and the challenges of contemporary armed conflicts, 31IC/11/5.1.2, 8 (2011);
ICRC, Commentary on the Geneva Conventions of 12 August 1949, Volume I, 32 (1952); The
Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article
61(7)(a) and (b) of the Rome Statute on June 15, 2009, ¶ 223; International Law Association, Use of
Force Committee, Final Report on the Meaning of Armed Conflict in International Law, 9 (2010).

71¶ 3, The Problem.

72¶¶ 4; 5, The Problem.

33
 international armed conflict, since it is a conflict between a non-state armed group
73
and the authorities of the state. Further, the assistance provided to Tyvosh by the
state of Porvos does not affect the nature of this conflict. When a State intervenes in
a non-international armed conflict in order to assist another state against a non-state
actor, it does not change the non-international nature of the conflict. A non-
international armed conflict is only internationalized when another state intervenes
74
in support of the non-state actor.

19 The prosecution may argue that the conflict was effectively between two or more
states because OSTY’s actions are attributable to the State of Yunkel. However,
OSTY’s acts cannot be attributed to Yunkel, because Yunkel exercised no control
over it. The Appeals Chamber in Tadic laid down the test for determining when
paramilitary groups in an internal
75
armed conflict can be said to be acting on behalf of another state. According to this
test, the state should have a role in organising, coordinating or planning the military
actions of the
paramilitary group.76 Thus, the acts of OSTY can be attributed to Yunkel only if it
77
exercises overall control over OSTY. In the present case, the State of Yunkel has
provided no assistance to and exercises no control over OSTY. Lance Raider, a
private individual, makes
all major political and military decisions for OSTY. 78 Attacks have been carried out
by OSTY with vessels from Raider’s fleet,79 and with weapons purchased using his
inheritance.80 Thus, actions of OSTY can not be attributed to Yunkel in the present
case.

73The Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY), Decision on the defence motion for
interlocutory appeal on jurisdiction on October 2, 1995, ¶ 70.

74The Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07, Decision on the confirmation of
charges on September 30, 2008, ¶ 239-240; The Prosecutor v. Thomas Lubanga, Case No. ICC-
01/04-01/06, Decision on confirmation of charges of Pre-Trial Chamber I on January 29, 2007, ¶ 209;
James G. Stewart, Towards a single definition of armed conflict in international humanitarian law: A
critique of internationalized armed conflict, 85 (850) INTERNATIONAL COMMITTEE OF THE RED CROSS ,
313, 315 (2003).
75James G. Stewart, Towards a single definition of armed conflict in international humanitarian
law: A critique of internationalized armed conflict, 85 (850) INTERNATIONAL COMMITTEE OF THE RED
CROSS, 313, 323 (2003).

76The Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY), Judgment on July 15, 1999, ¶137.

77The Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY), Judgment on July 15, 1999, ¶131.

78¶ 3, The Problem.

79¶ 6, The Problem.

80¶ 4, The Problem.

34
20 Further, the prosecution may not rely on lower thresholds for attributing acts of non-
state actors to states if such thresholds are drawn from the laws on state
responsibility. This is because attribution to determine whether a conflict is
international is distinct from attribution
to determine whether a state is internationally responsible for the acts of a non-state
entity.81 The test of overall control laid down in the Tadic decision is specifically
applicable to the
question of determining whether a conflict is international or non-international. 82 It
has been consistently followed in decisions of the ICTY as well as the ICC for
determining the nature of conflict.83 Thus, it is the appropriate test to apply in the
present case.

c. The contamination did not result in widespread, long-term and severe

damage

21 Art. 8(2)(b)(iv) of the Rome Statute criminalizes attacks that cause “widespread,
long-term and severe damage” to the natural environment. These terms should be
interpreted in accordance with the Additional Protocol I standard [1], and the
contamination of Mirror Lake fails to meet this standard [2].

1. This standard should be interpreted in accordance with Additional Protocol I

22 Art. 8(2)(b)(iv) corresponds to Art. 55 of Additional Protocol I, which creates a duty

to protect the natural environment against widespread, long-term and severe damage
in
84
warfare. It is well-established that these criteria under the Protocol set a very high
85
threshold that applies only to exceptionally catastrophic events. The prosecutor
may argue that Art. 8(2)(b)(iv) should be interpreted in consonance with the lower
threshold under the Environmental Modification Convention (“ENMOD
86
Convention”). Under the ENMOD

81Bosnia and Herzegovina v. Serbia and Montenegro, Case concerning application of the
convention on the prevention and punishment of the crime of genocide, International Court of Justice,
February 26, 2007, ¶ 404.

82The Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY), Judgment on July 15, 1999, ¶¶ 137, 145.
83The Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on confirmation of charges of
Pre-Trial Chamber I on January 29, 2007, ¶ 210-211; The Prosecutor v. Jean-Pierre Bemba Gombo,
Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on June
15, 2009, Pre-Trial Chamber II, ¶ 229; The Prosecutor v. Blaskic, Case No. IT-95-14-T (ICTY),
Judgment on March 3, 2000, ¶ 100; The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A,
Judgment on March 24, 2000, ¶ 134.

84Art. 51(2), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

85ICRC Opinion Paper, How is the Term “Armed Conflict” Defined in International Humanitarian
Law?, 17, (March 2008).

86Convention on the Prohibition of Military or Any Other Hostile Use of Environmental

Modification Techniques, United Nations (May 18, 1977) (“ENMOD Convention”).

35
 Convention, “widespread” encompasses an area of several hundred kilometers,
“long-lasting” refers to a period of months, and “severe” means serious disruption to
87
human life. These terms have much wider application under the ENMOD
88
Convention than under Additional Protocol I.

23 The interpretation of the standard under the Rome Statute should be in accordance
with Additional Protocol I because: First, the drafting history of Art. 8(2)(b)(iv)
shows that it was
89
specifically designed to implement Art. 55 of Additional Protocol I; Second, the
wording of Art. 8(2)(b)(iv) mirrors that of the Additional Protocol by laying down a
conjunctive
requirement, while the ENMOD Convention lays down a disjunctive requirement; 90
Third, Additional Protocol I, like Art. 8(2)(b), applies only to armed conflict,
whereas the ENMOD
Convention deals with environmental modification techniques for any hostile
purposes;91 and Fourth, the interpretation of “widespread, long-lasting, and severe”
under the ENMOD Convention was intended exclusively for that Convention and
was not intended to prejudice
the interpretation of similar terms used in other agreements. 92 Thus, the standard
under Art. 8(2)(b)(iv) should be interpreted in accordance with the Additional
Protocol rather than the ENMOD Convention.

87Report of the Conference of the Committee on Disarmament, Vol. I, U.N. Doc. A/31/27, 91
(1976).

88Andronico O. Adede, Protection of the Environment in Times of Armed Conflict: Reflections on

the existing and Future Treaty Law, 1 (1) ANNUAL SURVEY OF INTERNATIONAL & COMPARATIVE LAW,
161, 166 (1994).

89Silja Vöneky et al., Environment, Protection in Armed Conflict in MAX PLANCK ENCYCLOPEDIA ON
PUUBLIC INTERNATIONAL LAW (2011); Diedre Willmott, Removing The Distinction Between
International And Non-International Armed Conflict In The Rome Statute Of The International
Criminal Court, 5(1) MELBOURNE JOURNAL OF INTERNATIONAL LAW, 197, 210 (2004); Mark A Drumbl,
International Human Rights, International Humanitarian Law, and Environmental Security: Can the
International Criminal Court Bridge the Gaps, 6, ILSA J. INT'L & COMP. LAW, 305, 316 (2000).

90ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS, Art. 35, ¶ 2135
(1987); Arie Afriansyah, Environmental Protection and State Responsibility in International
Humanitarian Law, 7, INDONESIAN J. INT'L LAW, 242, 252 (2010).

91Andronico O. Adede, Protection of the Environment in Times of Armed Conflict: Reflections on

the existing and Future Treaty Law, 1 (1) ANNUAL SURVEY OF INTERNATIONAL & COMPARATIVE LAW,
166 (1994).

92Report of the Conference of the Committee on Disarmament, Vol. I, U.N. Doc. A/31/27, 91
(1976); ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS, Art. 35, ¶
1455 (1987).

36
 2. The contamination of Mirror Lake fails to meet this standard

24 The protections under Protocol I are primarily aimed at protecting human beings
from the
93
effects of environmental destruction. In the specific context of fresh water sources,
it has been observed that the requirements of “widespread, long-term, and severe”
environmental
damage are linked to the protection of the civilian population. 94 Thus, the magnitude
of the damage to the environment in the present case may be ascertained with
reference to the effect it had on human life.

25 The contamination of Mirror Lake by OSTY did not amount to “long-term” damage,
since it
only lasted three weeks.95 It is well settled that “long-term” damage under Protocol I
occurs over a period of decades,96 not weeks. Further, the “severity” of the attack
should be measured in terms of the prejudicial effect on human health or survival. 97
This includes serious effects such as congenital defects or degenerations, and does
not include short-term
effects on health.98 The contamination of the lake with Salmonella does not amount
to severe damage, since it did not result in such serious effects on human health.
Most persons affected by Salmonella recover without treatment, within a few days. 99
Most of the victims in the

93 Michael Schmitt, Humanitarian Law and the Environment, 28 DENVER JOURNAL OF INTERNATIONAL
LAW AND POLICY, 265, 277 (2000); Andronico O. Adede, Protection of the Environment in Times of Armed
Conflict: Reflections on the existing and Future Treaty Law, 1 (1) ANNUAL SURVEY OF INTERNATIONAL &
COMPARATIVE LAW, 166 (1994); Jessica Lawrence et al., The First Ecocentric Environmental War Crime:
The Limits of Article 8(2)(b)(iv) of the Rome Statute, 20 GEO INTERNATIONAL ENVIRONMENTAL LAW
REVIEW, 61, 66-67 (2008); Julian Wyatt, Law-making at the intersection of international environmental,
humanitarian and criminal law: the issue of damage to the environment in international armed conflict, 92
(879) INTERNATIONAL REVIEW OF RED CROSS, 593, 625 (2010); Ashley Barnes and Christopher Waters,
The Arctic Environment and International Humanitarian Law, 49 Y.B. INT'L LAW, 213, 219 (2011).
94 Nikolai Jorgensen, The Protection of Freshwater in Armed Conflict, 3(2) JOURNAL OF
INTERNATIONAL LAW
AND INTERNATIONAL RELATIONS 57, 75 (2007).

95¶ 9, The Problem.

96Report submitted by the ICRC to the 48th session of the United Nations General Assembly, U.N.
Doc A/48/269, ¶34 (1993); ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA
CONVENTIONS,
Art. 35, ¶¶ 1452-1455 (1987); Karen Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL
THRESHOLD,
94 (2004).

97Karen Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 96 (2004).

98ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS, Art. 35, ¶ 2135
(1987).

99National Health Service UK, Salmonella Infection, available at:

http://www.nhs.uk/Conditions/salmonella-infection/Pages/Introduction.aspx/

37
 100
present case were among the elderly and young children, due to their lower
101
immunity. led to an outbreak of Salmonella-caused illness in the city of Dothran
alone. Finally, the contamination of Lake Mirror does not meet the high standard of
“widespread” damage, since it only had effects on human health in one city.
“Widespread” damage has been interpreted to mean a territorial extent close to
102
20,000 square kilometers. Thus, the contamination of Mirror Lake did not result
in widespread, long-term, and severe damage as per Art. 8(2)(b)(iv) of the Rome
Statute.

d. The injury was not excessive in relation to the concrete military advantage
anticipated

26 Art. 8(2)(b)(iv) criminalizes damage caused to the environment which would be

clearly excessive in relation to the concrete and direct overall military advantage
anticipated. This lays down a test of proportionality between damage to the
environment and the expected
103
military advantage. The attack in the present case does not violate this
requirement of proportionality because the overall military advantage anticipated
was concrete and direct [1]. Further, the attack was not clearly excessive in relation
to the advantage anticipated [2].

1. The overall military advantage anticipated was concrete and direct

27 A military advantage generally consists in weakening the enemy’s armed forces, 104
and may involve the denial of humanitarian access to opposing forces.105 An
“overall” military advantage may be one that is in a different geographical location
from the environmental damage.106 In the present case, the military advantage
sought by OSTY was the immediate

100 ¶ 9, The Problem.

101 National Health Service UK, Salmonella Infection, available at:

http://www.nhs.uk/Conditions/salmonella-
infection/Pages/Introduction.aspx/
102 Karen Hulme, WAR TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 92 (2004).
103 ICRC Report on International Humanitarian Law and The Challenges of Contemporary Armed
Conflicts,
03/IC/09, 12 (2003).

104 ICRC Report on International Humanitarian Law and The Challenges of Contemporary
Armed Conflicts, 03/IC/09, 12 (2003).

105 ICRC Report on International Humanitarian Law and the Challenges of Contemporary
Armed Conflicts, 31IC/11/5.1.2, 23 (2011).

106 Footnote 36, Elements of Crimes, 19; ICRC Statement of 8 July 1998 Relating to the
Bureau Discussion Paper in Document A/CONF.183/C.1 /L.53, UN Doc. A/CONF.183/C.1/L.53;
Jessica Lawrence et al., The First Ecocentric Environmental War Crime: The Limits of Article 8(2)(b)
(iv) of the Rome Statute, 20 GEO
INTERNATIONAL ENVIRONMENTAL LAW REVIEW, 61, 77-78 (2008).

38
 107
halting of aid shipments from Porvos to Quirth. The advantage sought was
“concrete and direct” because it was a clearly defined, short-term end.108 It is not
necessary that this advantage was a reasonably foreseeable advantage, but merely
109
that it was honestly anticipated by OSTY. Thus, it need not be shown that the
halting of the aid shipments was a necessary result of the contamination of the lake.
Art. 8(2)(b)(iv) allows a broad margin of judgment to combatants in predicting
military advantages.110 In any case, the immediate halting of the aid shipments in
response to the contamination shows that this military advantage was, in fact, a
111
concrete and direct result of the attack.

2. The attack was not clearly excessive in relation to the anticipated advantage

28 Whether the attack was clearly excessive in relation to the perceived military
advantage can be determined by comparing the losses inflicted by the attack to the
losses prevented by the
112
achievement of the military advantage anticipated. Regard must be had to the
nature of the contaminant employed in the attack. Salmonella has been employed as
a contaminant in
113
attacks when the specific intent was to avoid causing deaths. It can be effectively
removed by ordinary treatment of water during distribution or boiling of water in
114 115
households. OSTY even publicly announced that it would contaminate the lake,
giving Porvosian authorities an

107 ¶ 9, The Problem.

108 ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS, Art.
57, ¶ 2208 (1987).

109 Jessica Lawrence et al., The First Ecocentric Environmental War Crime: The Limits of Article
8(2)(b)(iv) of the Rome Statute, 20 GEO INTERNATIONAL ENVIRONMENTAL LAW REVIEW, 61, 81 (2008).

110 K. Ambos, TREATISE ON INTERNATIONAL CRIMINAL LAW, VOL. II, 670 (2014); Mark A Drumbl,
International Human Rights, International Humanitarian Law, and Environmental Security: Can the
International Criminal Court Bridge the Gaps, 6, ILSA J. INT'L & COMP. LAW, 305, 321 (2000).

111 ¶ 9, The Problem.

112 Haque, Adil Ahmad, Law and Morality at War, 8(1) CRIMINAL LAW AND PHILOSOPHY, 79, 97
(2014).
113 W. Seth Carus, BIOTERRORISM AND BIOCRIMES: THE ILLICIT USE OF BIOLOGICAL AGENTS
SINCE 1900, 54 (2002).

114 Török, Thomas J., et al., A large community outbreak of salmonellosis caused by intentional
contamination of restaurant salad bars, 278(5) JAMA 389, 393 (1997); WHO Guidelines for Drinking-
water Quality: Recommendations, WORLD HEALTH ORGANIZATION, 1, 240 (2008); Frederick J. Angulo et al,
A Community Waterborne Outbreak of Salmonellosis and the Effectiveness of a Boil Water Order , 87(4)
AMERICAN JOURNAL OF PUBLIC HEALTH, 580, 584 (1997).

115 ¶ 9, The Problem.

39
 opportunity to take precautions. In comparison to this attack, the military advantage
anticipated by OSTY was the halting of aid shipments, which would end the conflict

on the high seas. Atleast 1000 persons have been killed in this conflict. 116 Thus,
while the contamination did lead to 50 deaths, the effects of this attack were not
disproportionate to the military advantage anticipated and achieved by OSTY.
Resultantly, the contamination of the lake cannot be said to be clearly excessive in
relation to the anticipated advantage.

III. Judge Hasty should be disqualified from the present case

29 One of the judges of the Pre-Trial Chamber, Judge Rosemelle Hasty, should be
disqualified from the present case on grounds of lack of impartiality. J. Hasty has
authored a book in which she has expressed the opinion “recruitment and use of
juvenile pirates could be tried as
a crime against humanity by the International Criminal Court.”117 This pertains
directly to one of the issues of jurisdiction in the present case.118 J. Hasty should be
disqualified because Yunkel has locus standi to request J.Hasty’s disqualification [a],
and the standard required for disqualification has been met [b].

Counsel for the Government of Yunkel requested that one of the three members of
the Pre-Trial Chamber assigned to this matter, Judge Rosemelle Hasty, be
disqualified from this Case under Articles 40 and 41 of the Court’s Statute because
she authored a book while serving as a professor at the Major Planc Institute, titled
“Emerging Issues in International Criminal Justice” (Westeros University Press,
2011), in which she wrote: “The scourge of Somalia Piracy may someday trigger the
ICC’s jurisdiction in a variety of contexts. For example, recruitment and use of
juvenile pirates could be tried as a crime against humanity by the International
Criminal Court if the Court had personal jurisdiction over parties responsible for this
heinous practice.” Although this was written before her election to the ICC bench,
Yunkel argues that this published passage indicates that Judge Hasty’s impartiality
on the novel question of whether recruitment of juvenile pirates is a crime against
humanity is in doubt.

a. Yunkel has locus standi to request disqualification

30 The prosecution may argue that the Government counsel does not have locus standi
to request the disqualification of the judge in the present case. While Art. 41(2)(b) of
the Statute provides that the Prosecutor or any person being investigated may request
the disqualification
119
of a judge, this should not be seen as an exclusive right. The Rules of Procedure
and Evidence place an absolute duty on judges to request to be excused in case any
of the grounds
120
for disqualification exist, irrespective of a request for disqualification. Thus,
restricting the right to request disqualification to certain parties would lead to an
121
inconsistency between the Statute and the Rules. Further, denying the right to request
the disqualification of a judge to

116¶ 8, The Problem.

117¶ 12, The Problem.

118¶ a, The Problem.

119Art. 41(2)(b), Rome Statute.

120 Rule 35, Rules of Procedure and Evidence, International Criminal Court, U.N. Doc.
PCNICC/2000/1/Add.1 (2000) (“Rules of Procedure and Evidence”).
121 W.A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY TO THE ROME STATUTE, 573
(2010)

40
 122
Yunkel violate the principles of natural justice. As the investigation sought by the
123
prosecutor would cover acts committed on its territory, Yunkel is a party directly
interested in the case at hand. Thus, Yunkel has locus standi to request the
disqualification of J. Hasty.

b. The standard required for disqualification has been met

31 As per Arts. 40 and 41 of the Rome Statute, a judge must be independent in the
performance of her functions and must not participate in any case in which her
impartiality “might
124
reasonably be doubted” on any ground. To rebut the presumption of impartiality, it is
125
sufficient to prove that a fully informed, reasonable observer would apprehend bias.
Yunkel submits that the requisite standard has been met since J.Hasty’s opinion
explicitly pertains to an issue in the case at hand. There exists a genuine link between J.
Hasty’s opinion and the
case at hand, as both are concerned with the same situation and involve similar
actors.126 The Rules of Procedure and Evidence do not require the conclusiveness of
such opinion to be
established in order for impartiality of a judge to be adversely affected. 127 The
impugned opinion evidently demonstrates that Judge Hasty “could be expected to
have formed an
128
opinion” on the recruitment and use of child pirates, which is sufficient to require
129
disqualification. In Issa Hassan Sesay, it was held that similar published
comments made by a judge regarding the commission of certain crimes would
provide a reasonable apprehension of bias in cases concerning similar facts. Hence,
J. Hasty must be disqualified under Art. 41 of the Rome Statute and Rule 34 (c) of
the Rules of Procedure and Evidence.

122 The Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgment on July 5, 2001, ¶ 27; The
Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/13, Defence request for leave to appeal on
November 26, 2014, ¶ 13.

123 ¶¶ 2; 7, The Problem.

124 Arts. 40; 41, Rome Statute.

125 The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/13, Decision on
Disqualification of Judge Cuno Tarfusser on June 20, 2014, ¶17 ; The Prosecutor v. Thomas Lubanga Dyilo,
Case No. ICC-01/04-01/06, Decision on Disqualification of Judge Sang-Hyun Song on June 29, 2015, ¶ 18.

126 The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus,
Case No. ICC-02/05-03/09, Decision on Disqualification of a Judge on April 2, 2012, ¶9-10.
127 Rule 34(1)(c), Rules of Procedure and Evidence.

128 Rule 34, Rules of Procedure and Evidence.

129 The Prosecutor v. Issa Hassan Sesay, Case No. SCSL-04-15-AR15, Decision on
Disqualification of Justice Robertson on March 2, 2009, Special Court for Sierra Leone, ¶ 15.

41
 CONCLUDING SUBMISSIONS

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

I. The recruitment and use of juvenile pirates by OSTY in attacks against the Porvos
aid vessels cannot be tried as a crime against humanity within the jurisdiction of
the International Criminal Court under Article 7 of the ICC Statute;

II. OSTY’s cross-border contamination of Porvos’s water supply cannot be tried as a

war crime under Article 8(2)(b)(iv) of the ICC Statute;

III. Judge Hasty should be disqualified from the present case;

On Behalf of the Government of Yunkel

Government Counsel
42
43