LUMS 3rd INTERNATIONAL MOOT COURT

___________________________________________________

HIGH COURT OF PRIOTNA

THE CASE CONCERNING TREATMENT OF PAMULKE, ABUELA, AND

XUBARA

____________________________________________________

PAMULKE, ABUELA, AND XUBARA

VERSUS

MEMORIAL FOR THE APPLICANT Page 1

 THE STATE OF PRIOTNA

TABLE OF CONTENTS…………………………………………….....2

TABLE OF AUTHORITIES............................................................................... 3

STATEMENT OF JURISDICTION .................................................................. 4

QUESTIONS PRESENTED................................................................................ 5

STATEMENT OF FACTS .................................................................................. 6

PRAYER FOR RELIEF...........................................................................................22

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 TABLE OF AUTHORITIES

1. 1951 Convention Relating to the Status of Refugees

2. Cartagena Declaration (1984)

3. Universal Declaration of Human Rights

4. ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

5. Conscientious objection to military service (Resolution 1998/77)

6. Cameroon’s Disciplinary Regulations (2007)

7. Canada’s LOAC Manual (2001) states in its chapter on “War crimes, individual criminal liability and
command responsibility”

8. The United Nations High Commissioner for RefugeesResettlement Handbook

9. Charter Of The United Nations
10. United Nations General Assembly Resolution 3314 (XXIX)
11. International Law Association ( ILA ) * Cairo Conference ( 1992)

12. Customary International Humanitarian Law

13. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

NATIONAL AND INTERNATIONAL CASES

1-Australia federal court SHCB case judgement 22 December 2003 31#

2-Judgment on Appeal in the Finta Case in 1994, Canada’s Supreme Court

3-HINZMAN V. CANADA

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 STATEMENT OF JURISDICTION

Pamulke, Abuela, and Xubara’s legal clinic agreed to file an appeal on their behalf at a Priotnan High

Court against the State’s decision.

The appellants, Pamulke, Abuela, and Xubara, filed separate appeals to the High Court of Pritonia which

will decide the matter on the basis of International law.

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 QUESTIONS PRESENTED

a. They satisfy the requirements to be deemed a refugee under the 1951

Convention and 1967 Protocol and should be granted refugee status

b. Keeping them in camps in safe zones in Priotnan territory violates their

right to seek asylum

c. Priotna owes them compensation for their treatment in the camps

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 STATEMENT OF FACTS

1. Soudain is a small multi-religious nation. State of Rapidia is on its east and Priotna on its west. They
border the Mesopartarian Sea to their south and have highly developed road and railway links
connecting them. These states were under colonial rule until 1963.

2. Soudain is poor and has 7 million people majority of whom are Huturi religion and Sahani are among
the minorities they are a fire worshiping cult they Sahani are discriminated and face hostility from the
rest of the population.

3. Rapidia has democracy and a stable economy and huturi are majority and Sahani are minority. Rapidia
and Soudain have volatile relationship. Country is wealthy because of abundance of natural resources.

4. In Soudain Sahani are discriminated Sahani adopt aggressive missionary approach The UN Secretary
General Issued a report about Sahani in 2015 that Sahani often not given access to education and have
low-end jobs

5. In July 2018 Derjon passed an Executive Order Named Anti-Terror Order which allowed police officers
to arrest and preventively detain for an indefinite period those committing a terrorist offence.

6. Pamulke a Sahani university student was arrested for being part of the protest even though he left
before it turned violent kept in police station without informing his family no legal representation,
questioned for hours not given food and water throughout his detention officers ridiculing his faith

7. His father got him out and the officers reprimanded the police demanded house arrest for a month
from him. He escaped to Priotna to seek asylum.

8. 17 September 2018 large scale violence between Soudain and Rapidia. Troops of either sides kill
people and ransack villages Sahani population is attacked with petrol bombs they flee to other countries
particularly Priotna

9. Soudain is using robots which help prolong an otherwise lost war. Derjong uses them on Sahani whom
he believes may be collaborating with Rapidia

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10. Abuela Soudain FM radio station show hostess broadcasts state propaganda and latter broadcast is
contrary to her previous broadcast she faces backlash from the community she is fired cant find job at
other news and radio stations she starts receiving crank calls she asks for police assistance they tell her
to hire private security which is not an option for unemployed her. She gets a temporary job earns
enough to flees for Priotna

11. Xubara operates killer robot, is ordered to attack national TV station and wind farm he doesn’t do it
at first but his commander says he’ll have him taken care of and Xubara acquiesce to the command and
afterwards is ordered to attack a School 19 people die in that attack because robot goes beyond his
control. He and his commander don’t see eye Xubara creates union against the commander,
commander spreads rumors about Xubara and Xubara quits and flees to Priotna

12. Temporary camps are established in safe zones in Soudain where living condition is deemed to be
dire by International Relief Agencies

13. Priotnan Government starts to patrol camps armed troops , who are known to use excessive force
against people of the cam.

14. Pamulke, Abuela and Xubara claim’s for refugee status are denied, they file an appeal in the
Priotnan High Court against the State’s decision.

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 PLEADINGS
ISSUE A:

They satisfy the requirements to be deemed a refugee under the 1951

Convention and 1967 Protocol and should be granted refugee status

Refugees within Article 1A (2) of the 1951 Convention

“a person who… owing to a well-founded fear of being persecuted for reasons

of race, religion, nationality, membership in a particular social group or political

opinion, is outside the country of nationality and is unable or, owing to such fear,

is unwilling to avail himself of the protection of that country; or who, not having

a nationality and being outside the country of his former habitual residence as a

result of such events, is unable or unwilling to return to it.”

1

Cartagena Declaration (1984)

The Declaration enlarges the refugee definition to include "...persons who have fled their
country because their lives, safety or freedom have been threatened by generalised violence,
foreign aggression, internal conflicts, massive violation of human rights or other circumstances
which have seriously disturbed public order". While the Cartagena Declaration is not a treaty,
its provisions are respected across Central America and have been incorporated in some
national laws.

1. 1951 Convention Relating to the Status of Refugees

2. Cartagena Declaration (1984)

3. Universal Declaration of Human Rights

4. ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

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Universal Declaration of Human Rights

Article 14
Everyone has the right to seek and to enjoy in other countries asylum from

persecution.

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

Art. 7.2.g
"Persecution" means the intentional and severe deprivation of fundamental rights contrary to
international law by reason of the identity of the group or collectivity;

The sahani is a religion of fire worshiping people who are discriminated and face hostility from rest of
the population

Soudain’s President is Derjon who is an totalitarian despot he is openly hostile towards minorities
especially those from the Sahani. He has vowed to strip the Sahani of there citizenship and has referred
to them as pests and said he would like to throw them out of a helicopter even though its there
constitutional right to practice and propagate their religion

Sahani are often not provided with education they are given the lowest and most undesirable
2
profession

PAMULKE
In July 2018 President Derjon passed an Executive Order named the Anti-Terror Order this order is
basically a way to target the Sahani minority and label their missionary work as terrorism

In August 2018, Sahani did peaceful protest against the Order however they were assaulted and
robbed by Huturis the police did not take the Sahani’s complaints even when the people
assaulted new their perpetrator instead the Sahani were arrested and charged with terrorism and
rioting

1- compromis ¶ 6
2- compromis ¶ 8
3- compromis ¶ 9
4- compromis ¶ 10
5- compromis ¶ 11
6- Universal Declaration of Human Rights

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One of the Sahani arrested was Pamulke, a 21 year old university student who

had been part of the protests. Pamulke is an advocate for Sahani rights and is Sahani personality.
He was arrested for rioting even though he left the protest before it turned violent he wasn’t
allowed legal representation nor his family was informed. He wasn’t given food or water
throughout his time in detention.

The officers ridiculed his faith, calling it a “fire

worshiping cult” and repeating Derjon’s statements

UDHR Article 19
Everyone has the right to freedom of opinion and expression; this right includes

freedom to hold opinions without interference and to seek, receive and impart

information and ideas through any media and regardless of frontiers.

UDHR Article 20
Everyone has the right to freedom of peaceful assembly and association.

19 & 20 together give the right to peaceful protest. Pamulke was only exercising his fundamental human
right which is recognized by the UN, UK & EU

Instead he was arrested unfairly and harassed by law enforcement

The Human Rights Act ( UK & EU )

Article 11: Right to protest And Freedom of Association

Everyone has right to freedom of peaceful assembly and to freedom of association with others,
including right to form and to join trade unions for the protection of his interests.

Eventually Pamulke is freed from the police’s unlawful detention due to the efforts of his family
but the his freedom of movement hindered by police who demanded he be kept on a months
house arrest Pamulke went seeking for asylum in Priotna because of his notoriety as Sahani
rights activist and as social media Sahani personality he fears of falling prey to further police
harassment as well as for his life as the country is unstable and is about to go to war and he
belongs to a religious minority which faces discrimination from the rest of the nation

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Its a fact that Pamulke is being harassed by the police and belongs to religious minority the head
of the country despises his religion and is open in his hate about Sahani and who has ordered the
Rashathara battalion to kill the Sahani during the war keeping all these facts in our view we can
see that Pamulke is the poster child of the definition of refugee set in the

Refugees within Article 1A (2) of the 1951 ConventionRelating to the Status of Refugees as well as the
definition mentioned in Cartagena Declaration (1984) and Pamulke can and is seeking asylum and
should be given refugee status because it is his basic human right awarded to him by the UN in
UDHRArticle 14 Priotna has a moral obligation to give Pamulke refugee status refusing to do so is
tantamount to issuing him a death sentence or worse a living hell

ABUELA
She is a Soudainese personality hosting Soudain FM radio station show. She with a heart filled with
bravery and courage decides to air a broadcast unveiling the discrimination faced by the Sahani
minority, she talks about human rights and religious freedom and instead of being applauded for her
actions toxic comments are made about her on social media and to her person in a country where the
President as well as the majority openly abhor the Sahani rumors have been spread that her father is a
Sahani and that she also has Sahani ties this is utter nonsense graffiti is painted on the wall outside the
station that says leave Soudain you cult sickos then she is fired from her job and she is receiving threats
to get out of here from anonymous phone calls at night she seeks assistance from the police but they
laugh her away and tell her to get private security Abuela is hated by the country threatened to leave
and she is unemployed she cant afford security she manages to scrounge up some money from a
temporary job and escapes the country to apply for refugee status at Priotna

This is a woman who spoke up for the oppressed the discriminated the destitute and the cost of her
safety her livelihood and reputation she spoke the truth and was admonished for it she is being targeted
because of political and social views and the police/country refuse to provide protection to her to deny
her refuge would ultimately result in her dark demise at the hands of her country 3

Xubara
A conscientious objector is an "individual who has claimed the right to refuse to perform military
service" on the grounds of freedom of thought, conscience, or religion. Conscientious objection to
military service is based on the right to freedom of thought, conscience and religion, set out in the
Universal Declaration of Human Rights it is derived from Universal Declaration of Human Rights,
article 18

Conscientious objection to military service (Resolution 1998/77)

Encourages States, subject to the circumstances of the individual case meeting the other requirements
of the definition of a refugee as set out in the 1951 Convention relating to the Status of Refugees, to

compromis ¶ 12,14,15,16
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consider granting asylum to those conscientious objectors compelled to leave their country of origin
because they fear persecution owing to their refusal to perform military service

Xubara is a conscientious objector the facts will prove that he is one

He operates robots as part of the Rashathara battalion he is forced to attack a wind farm that provides
electricity to a village by his commanders threats to his life. Latter his commander orders an attack on a
school Xubara in fear of his life complies but attacks only the infrastructure and not civilians but the
robots malfunctions and 19 casualties occur. The malfunction is likely the result of being hacked by
North Ascondia a country who made the robots in the first place

Xubara’s commander gives him questionable targets which Xubara every so often push back on them
because he doesn’t want a repeat of the school his raise is canceled and the commander spreads rumors
about Xubara making anti-national remarks about the war. Xubara fearing court martial and summary
execution deserts to Priotna

Article 31 of Rome Statue

Grounds for excluding criminal responsibility 4

The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been

caused by duress resulting from a threat of imminent death or of continuing or imminent serious

bodily harm against that person or another person, and the person acts necessarily and reasonably

to avoid this threat, provided that the person does not intend to cause a greater harm than the one

sought to be avoided. Such a threat may either be:

(i) Made by other persons; or

(ii) Constituted by other circumstances beyond that person's control. 5

compromis ¶ 17,18,3,19
1-Conscientious objection to military service (Resolution 1998/77)

2-Rome Statue of The International Criminal Court

3-Cameroon’s Disciplinary Regulations (2007)

4-Canada’s LOAC Manual (2001) states in its chapter on “War crimes, individual criminal liability and
command responsibility”

5-Australia federal court SHCB case judgement 22 December 2003 31#

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Xubara performed his actions under the Commanders threats of his life

Cameroon’s Disciplinary Regulations (2007) states:

If the subordinate by a superior is compelled by force or physical threat, he shall be completely relieved
of his penal responsibility

Canada’s LOAC Manual (2001) states in its chapter on “War crimes,

individual criminal liability and command responsibility”:

1614. Duress

1. Persons accused of war crimes are entitled to plead that they acted under duress. It may be, for
example, that such persons were under an immediate and real fear for their own lives. This would be
the exception

Australia
In 2003, in the SHCB case, the Federal Court of Australia noted: “The defence of obedience to higher
orders will normally apply only where there are imminent real and inevitable threats to a subordinate’s
life. There is an element of moral choice in relation to the defence

Canada
In its judgment on appeal in the Finta case in 1994, Canada’s Supreme Court recognized that:

The defence of obedience to superior orders and the peace officer defence are available to members of
the military or police forces in prosecutions for war crimes and crimes against humanity. Those defences
are subject to the manifest illegality test: the defences are not available where the orders in question
were manifestly unlawful. Even where the orders were manifestly unlawful, the defence of obedience to
superior orders and the peace officer defence will be available in those circumstances where the
accused had no moral choice as to whether to follow the orders. There can be no moral choice where
there was such an air of compulsion and threat to the accused that he or she had no alternative but to
obey the orders

The definition set by 1951 convention regarding refugees states that persecution owing to a particular
political opinion is grounds for to be considered a refugee a conscientious objector is considered as a
political opinion as refusal to perform in the military is due to your social religious or moral views is a
political opinion as a state and its military go hand in hand

6-Judgment on Appeal in the Finta Case in 1994, Canada’s Supreme Court

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UNHCR Resettlement Handbook

3.6.2 Former combatants

former combatants who request asylum

should be admitted into asylum procedures once it has been established that

they have genuinely and permanently renounced military activities

Xubara was an unwilling participant, has refused to perform military activities and is a conscientious
objector he had no intent or moral choice he was afraid for his life and he still resisted his tyrannical
commander he does not want to attack his fellow countrymen which the Rashatara battalion has been
ordered by Derjon to attack Sahani people in the past and now he begs for refuge and is owed refuge

Jeremy Hinzman was an American deserter of the Iraqi war who claimed to be a conscientious objectors
and asked for asylum in Canada he believed that the what was happening in Iraq was wrong

The case ofJeremy Hinzmanis a landmark case for conscientious objectors as he himself was one and
the Canadian Federal Court of Appeal, on May 25, 2010ruled unanimously in his favor

1- The United Nations High Commissioner for RefugeesResettlement Handbook

2- HINZMAN V. CANADA

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ISSUE B

Keeping them in camps in safe zones in Priotnan territory violates their

right to seek asylum

Article3

Everyone has the right to life, liberty and security of person.i

Article 14.

Everyone has the right to seek and to enjoy in other countries

asylum from persecution.
Non-Refoulement Obligations Under International Refugee Treaties

The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol

“No Contracting State shall expel or return (“ refouler”) a refugee in any manner

whatsoever to the frontiers of 7territories where his [or her] life or freedom

would be threatened on account of his [or her] race, religion, nationality,

membership of a particular social group or political opinion.” ii

The protection against refoulementunder Article 33(1) applies to any person who is a refugee
under the terms of the 1951 Convention, that is, anyone who meets the requirements of the
8
refugee definition contained in Article 1A(2) of the 1951 Convention (the “inclusion”

7
Universal Declaration of Human Rights

8
1951 Convention On Status OfRefugee

definition of the term “refugee” Article 1A(2) of the 1951 Convention

Person who owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social gr oup or
political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of
that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is
unable or, owing to such fear, is unwilling to return to it.

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criteria)and does not come within the scope of one of its exclusion provisions.Given that a
person is a refugee within the meaning of the 1951Convention as soon as he or she fulfills the
criteria contained in the refugee definition,refugee status determination is declaratory in nature: a
person does not become a refugee because of recognition, but is recognized because he or she is
a refugee.It follows thatthe principle of non-refoulementapplies not only to recognized refugees,
but also to those who have not had their status formally declared.

The principle of non-refoulement

is of particular relevance to asylum-seekers. As such persons may be refugees, it is an

established principle of international refugee law that they should not be returned or
expelled pending a final determination of their status

The prohibition of refoulement to a danger of persecution under international

refugee law is applicable to any form of forcible removal, including deportation,

expulsion, extradition, informal transfer or “renditions”, and non-admission at the border and
placing them in camps in the territory from where they escaped from. This is evident from the
wording of Article 33(1) of the 1951 Convention, which refers to expulsion or return
(refoulement) “in any manner whatsoever”.

The three Applicants fled from Soudain for fear of persecution to seek refuge in Priotna instead
found themselves back in Soudain in camps where they are given inhuman and degrading
treatment there are severe power outages diseases like malaria and cholera are running rampant
and cholera spreads by eating or drinking food or water contaminated with feces so no clean
water as well people die in droves in the camps and the number is increasing there is no
protection for women they are a regular target for rape and sexual assault and the camp is mostly
Sahani and non sahani members have been reported to be subjected to violence and abuse

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Priotna being a party to the 1951 UN Refugee Convention and the 1967 Protocol had an
obligation not to place them in the camps this violated there right to seek asylum as well as the
protection awarded to them under article 33 of the refugee convention

And as if that was not enough the Priotna government has ordered its troops to patrol the camps
these troops have been known to use excessive force and have basically illegally detained all the
refugee to the camps the detention is illegal because for one Priotna sending army over to camps
in Soudain without Soudain’s approval is an act of aggression hence any detention cant therefore
be legal as it has illegal origins secondly it has no right nor basis to detain them to the camps
where they are being tortured

Military or Armed Attacks on Refugee Camps and Settlements

No. 48 (XXXVIII) - 1987

1. Condemns all violations of the rights and safety of refugees and asylum-seekers and in
particular military or armed attacks on refugee camps and settlements.

2. Strongly urges States to abstain from these violations, which are against the principles of
international law and, therefore, cannot be justified.

The term aggression used in Article 39 of the UN Charter is

defined in the well-known General Assembly Resolution on the
Definition of Aggression. 8 The definition given herein is
composed by a general conception of the notion and a list of
exemplary situations. The first Article is read as follows;
9
“aggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the
Charter of the United Nations, as set out in this Definition.

1- compromis ¶ 22,23,24
2- Charter Of The United Nations
3- United Nations General Assembly Resolution 3314 (XXIX)
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Article 2 (4) of the Charter prohibits the threat or use of force
and calls on all Members to respect the sovereignty, territorial
integrity and political independence of other States. For
example, in connection with the situation concerning the
Democratic Republic of the Congo, the Council, by its
decisions, repeatedly called for the withdrawal of all foreign
forces from the territory of the Democratic Republic of the
Congo.73 By resolution 1304 (2000) of 16 June 2000, the
Council reiterated its unreserved condemnation of the fighting
between Ugandan and Rwandan forces in Kisangani “in
violation of the sovereignty and territorial integrity of the
Democratic Republic of the Congo”; demanded that Ugandan
and Rwandan forces as well as forces of the Congolese armed
opposition and other armed groups immediately and completely
withdraw from Kisangani; and further demanded that Uganda
and Rwanda, which had “violated the sovereignty and territorial
integrity of the Democratic Republic of the Congo,” withdraw
all their forces from the territory of the Democratic Republic of
the Congo without further delay.
The applicants sought refuge because they were being persecuted however sending them back to
the place they escaped from putting them in illegal detention making them live in unthinkable
conditions all points to the fact that there fundamental rights such as right to liberty, security,
freedom of movement and the issue in this case the right of asylum all these granted by the
UDHR have been violated

ISSUE C

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Priotna owes them compensation for their treatment in the
camps.

International Law Association ( ILA ) * Cairo Conference ( 1992)

DECLARATION OF PRINCIPLES OF INTERNATIONAL LAW

ON COMPENSATION TO REFUGEES

Principle 4: Governments are responsible for compensation for wrongful

expulsion of aliens, and should therefore be responsible for compensation to

refugees. A government is not just responsible for acts within borders but in occupied territories as

well

Priotna failure to comply with article 33 non refoulement of refugees placing the refugee in camps in
Soudain is a violation of there right to seek asylum if that isn’t enough then customary IHL Rule 90.
Torture and Cruel, Inhuman or Degrading Treatment Torture, cruel or inhuman treatment and
outrages upon personal dignity, in particular humiliating and degrading treatment, are
prohibited. The treatment the applicants faced in those camp is anything but human living
condition, there is no clean food or water, cholera and malaria spread rampant, refugees die in
droves from them , no security in camps for women or children, women are raped every other
day minorities are assaulted and subjected to violence. the conditions in the camp are an exact
replica to rule 90 stated above

Convention against Torture CAT

Article 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and
has an enforceable right to fair and adequate compensation, including the means for as full
rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his
dependants shall be entitled to compensation.

Priotna using armed troops to which are used to detain the people in the camps is wrong. First the very
act of sending your army to another states territory is wrong its called an act of aggression it violates a
states sovereignty and its territory this it self is an international wrong full act of state. Second forcing
the refugee to be confined to the ca 10mp and detaining them for reasons of to deter future asylum-

1- International Law Association ( ILA ) * Cairo Conference ( 1992)

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11
seekers, or to dissuade those who have commenced their claims from pursuing them, is inconsistent
with international norms.

Customary IHL Rule 150. Reparation

Rule 150. A State responsible for violations of international humanitarian law is required to make full
reparation for the loss or injury caused.

Priotna owes the applicants compensation for all its violations of there fundamental rights in the camps
and states have been known to pay for there crimes against refugees

A landmark settlement that forces the Australian government to pay more than AUS $70m in
compensationto nearly 2,000 refugees and asylum seekers for illegally detaining them on Papua New
Guinea'sManusIsland the legal team of the refugees claim was that they were subjected to

Arbitrary imprisonment and other severe deprivation of physical liberty.

Denial of proper medical assessment and treatment.

Inadequate security and protection.

Inadequate food and water.

Inadequate accommodation and an unhygienic environment.

These claims are identical to the present case

U.S. Committee for Refugees World Refugee Survey 1998 - United Kingdom in this survey a case is
mentioned On December 17, an asylum seeker won a claim against the Home Office for prolonged
detention. In the first ruling of its kind, the British High Court ordered the Home Office to pay
compensation to an Algerian national for keeping him in detention after it had enough evidence to grant
him asylum. The Algerian man arrived in the United Kingdom in June 1995, claiming fear of persecution
based on his role as a Mujahedin fighter in Afghanistan.

2- Customary International Humanitarian Law

3- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

4- Amnesty International, Australia: Compensation deal must lead to safe

resettlement for refugees, 14 June 2017, available at:
https://www.refworld.org/docid/59412dd64.html [accessed 29 January 2020]

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 PRAYER FOR RELIEF

The Court to adjudge and declare,

A. They satisfy the requirements of refugee in the 1951 Convention and 1967 Protocol and

should be granted refugee status

B. Keeping them in camps in Soudain Territory was a violation of their right to seek asylum

C. And that Priotna owes them compensation for their treatment in the camps

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