B.

TOJOLAND HAD VIOLATED THE PRINCIPLE OF INTERNATIONAL

HUMAN RIGHTS AND HUMANITARIAN LAWS
There were grave and serious violations of International Humanitarian Laws in the
state

of Tojoland. International Human Rights organizations assess Tojoland as a

category of its own with no parallel in the contemporary world when it comes to Human
Rights violation.1
ACT OF TOJOLAND WERE IN VIOLATION OF INTERNATIONAL
HUMANITARIAN LAW
Despite numerous rights being enshrined in the country's constitution, in practice there was
no right to free speech, and the only radio, television, music and news providers that are
deemed legal are those operated by the government. The Tojoan government made it very
difficult for foreigners to enter the country. Aid workers are subject to considerable scrutiny
and excluded from places and regions the government does not wish them to enter. 2It has also
violated the OPENA TREATY which states The Parties shall make every attempt to
promote the respect for human rights and take initiatives to spread awareness of human
rights and the humanitarian Rights.3
2.1.1 TOJOLAND HAD COMMITTED GENOCIDE AGAINST THE STATE OF
KHOJOLAND
The act committed by Tojoland towards the Khojoland can be considered an act of genocide
where the militants attacked on the capital of Khojoland through a series of Bomb Blasts
killing almost 2000 citizens while many others were seriously injured. The elements of the
crime of genocide in Art. II of the Genocide Convention 4 are conduct, consequences or
circumstances and intent. To find a State to have committed genocide of killing the citizens of
1. Compromis, 20
2. Ibid 20
3. O PENA TREATY , Art.3

a country, the intention must be to destroy, in whole or in part, that national, ethnical, racial or
religious group. As such, brutal killing of people falls within the meaning of the Convention.
Genocide is a clear and serious violation of international law.5
The Contracting Parties confirm that genocide, whether committed in time of peace or in
time of war, is a crime under international law which they undertake to prevent and to
punish.6 at the level of state responsibility it is now widely recognized that customary rules
on genocide impose erga omnes obligations on all member states of the international
community, granting the right to require that acts of genocide be discontinued.
There were allegations of genocide in the Capital of Khojoland anchored and aided by the
Tojolands Government and same was reported by the Intelligence Agency of Khojoland who
released a press note suspecting the Tojolands Government behind the brutal attack and more
particularly made Mr. Changez Soli and Mr.Shahnawaj Shaikh directly responsible for the
attack.7
2.1.2 TOJOLAND ALSO VIOLATED THE GENEVA CONVENTION
There is also a violation of Art.48 that guarantees the fundamental rights. The acts of
violence to the life, health and physical or mental well-being of persons, is prohibited at all
times.9Art. 13 of same relate to the protection of the civilian population that they shall not be

4. UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9
December 1948, United Nations, Treaty Series, vol. 78, p. 277
5. Ibid
6 Article 1 of the Convention on the Prevention and Punishment of the Crime of
Genocide
7. Compromis 25
8 . Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of Non-International Armed Conflicts (Protocol II), Art.4, 8 June 1977, 1125 UNTS 609
9. Ibid , Art.4(2)(a)

the object of attack. Acts or threats of violence with the primary purpose to spread terror
among the civilian population are prohibited. The citizens of Tojoland were the target of the
attacks which resulted in many civilians lives to be perished. Geneva Conventions prohibit
violence to life and person, in particular murder of all kinds of civilians.10 All four Geneva
Conventions list wilful killing of protected persons as a grave breach. 11 The prohibition of
murder is recognized as a fundamental guarantee by Additional Protocols I and II. 12During
the Peace march organised by Mr. Zafar Ali Khan supported by 80,000 citizens protesting
against government, advocating Human Rights and asking to hand over power to other
democratic body, Mr. Changez Soli had deployed armed forces to send the crowd back.
Approximately 20,000 people died in that hustle. 13 In addition, there was also violation to
Art.3, Part III14 that states every human being has the inherent right to life and this right shall
be protected by law which were violated by Tojoland against the people of Khojoland and its
own citizen. In the Mavromattes Palestine Concessions Case,15 the PCIJ decided that it is a
rule of customary International law that a State may espouse a claim on behalf of nationals
injured by the wrongful conduct of another State. 16 This is based on the notion that an injury

10. Common Art.3 of the 1949 Geneva Conventions

11. First Geneva Convention, Art.50; Second Geneva Convention, Art.51; Third Geneva Convention,
Art.130; Fourth Geneva Convention, art. 147.
12. Protocol I, art. 75(2)(a) ; Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 4(2) (a) 8
June 1977, 1125 UNTS 609[Additional Protocol II]
13 Compromis 21
14. International Covenant on Civil and Political Rights, G.A. res. (XXI), UN Doc. A/6316 (1966)
(ICCPR)
15. Mavromattes Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3 (Aug. 30).
16. United Nations, Draft Articles on Diplomatic Protection, 2006, UN Doc. A/61/10, Art. 1(1)

to a national of a State is an injury to the State itself. 17As in the present case the citizens of
Khojoland were killed and many others were seriously injured18, thus Khojoland can claim
compensation and could also seek action against the offenders.
2.2 TOJOLAND MUST SET FREE ALL THE PRISONERS WHO ARE
LANGUISHING IN THE CONCENTRATION CAMPS
Tojoland Government had detained between 150,000 and 200,000 political prisoners in
concentration camps where they perform forced labour, beatings, torture and execution.19
2.2.1 COMMISSION OF DETENTION BY TOJOLAND GOVERNMENT IS IN
VIOLATION OF INTERNATIONAL LAW
This act of Tojoland Government is completely against the International Covenant on Civil
and Political rights, which states that No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation.20 Everyone has the right to
liberty and security of person; no one shall be subjected to arbitrary arrest or detention and
shall not be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.21 International law requires that persons deprived of their

17. Emmerlich de Vattel, The Law of Nations 156 (1758); Lawrence J Lee, Barcelona Traction in the
21st Century: Revisiting its Customary and Policy Underpinnings 35 Years Later, 42 Stan. J Int'l L.
237 (2006).
18. Compromis , 25
19. Ibid, 20
20. ICCPR , Art.7
21. Ibid Art.9 (1)

liberty be treated with humanity and with respect for the inherent dignity of the human
person, to be non-derogable and therefore applicable at all times.22
Contrary to this the prisoners were brutally beaten, forced to do labour, were mentally and
physically tortured by the administrative authorities of Tojoland under the directions of the
Government. These prisoners were deprived of their freedom and liberty and were treated in a
very inhuman manner thus divesting them from their human rights.
2.2.2 PRISONERS WERE TREATED AGAINST THE SPIRIT OF HUMAN DIGNITY
Indeed, one of the major themes of International Humanitarian Law has been the growing
move towards the rules of Human rights law and vice versa, there is a common foundation in
the principle of respect for human dignity.23
The crime committed in the state of Tojoland can be attributed as the violation of principle of
Jus Cogens. This principle of jus cogens includes the crime of aggression, genocide, crimes
against humanity, war crimes, piracy, slavery and slave-related practices, and torture.
Sufficient legal basis exists to reach the conclusion that all these crimes are part of jus
cogens.24 crimes which are not the product of state action or state-favouring policy often lack
the two essential factors which establish the jus cogens status of a particular crime, namely a
threat to the peace and security of mankind and conduct or consequences which are shocking
to the conscience of humanity.

2227. UN Human Rights Committee, General Comment No. 29 (Art.4 of the

International Covenant on Civil and Political Rights) UN Doc.
CCPR/C/USA/CO/3/Rev.1, 18 December 2006, 5.
23. The Furundzija case, 121 ILR, pp. 213, 271.
24 Draft Code of Crimes Against Peace and Security of Mankind: Titles and
Articles on the Draft Code of Crimes Against Peace and Security of Mankind
adopted by the International Law Commission on its Forty-Eighth Session, U.N.
GAOR, 51st Sess., U.N. Doc. A/CN.4L.532 (1996)

These rules had been violated by the Tojoland authorities while dealing with the political
prisoners who were detained unlawfully and were forced to ruthless imprisonment along with
fierce torture and execution. It is hence humbly submitted that Tojoland should be made
responsible for the acts carried out over the political prisoners in the concentration camps.

3. TOJOLAND IS UNDER OBLIGATION TO EXTRADITE THE OFFENDERS OF

WAR CRIME AND CRIME AGAINST HUMANITY TO KHOJOLAND
By providing shelter to Offenders who are accused of War Crimes and Crime against
Humanity, Tojoland has violated rules of International law. The rules of state responsibility
have gradually developed to hold a state answerable for its own wrongdoings also in relation
to private violence. When the state has a duty to prevent private harm or to abstain from any
support for it, its responsibility is also engaged when it violates these obligations.25
3.1 TOJOLAND HAD PROVIDED PROTECTION TO OFFENDERS ACCUSEOF
WAR CRIMES
Any serious violation of International Humanitarian law constitutes a war crime. 26 The
Statute of the International Criminal Court defines war crimes as serious violations of the
laws and customs applicable in International armed conflict.27
States are not allowed on the one hand to act de facto through individuals and on the other to
disassociate themselves from such conduct when these individuals breach international law.
International law requires a stringent test for concluding that the state does indeed bear

25. T. Becker , Terrorism and the state : Rethinking the Rules of State Responsibility , Oxford : Hart
Publishing 2006 , p.3
26. Rule 156, ICRC, Customary IHL Database, available at https://www.icrc.org/customaryihl/eng/docs/v1_rul_rule156( last accessed 20.10.14).

27. Rome Statute of the International Criminal Court (ICC Statute), art.8 (2) (b),
17 July 1998, 2187 U.N.T.S. 90.

responsibility for the actions of those individuals: it is necessary to prove that the state issued
instructions or directives or orders to the individuals concerning the specic wrongful action.
Mr. Changez Soli and Mr. Shahnawaj Shaikh (hereinafter referred as accused) who once
were the most powerful and topmost personalities of Tojoland, due to differences between
Tojoland and Khojoland, suspected to perform an act which was not only crime against
humanity but was also widely criticised by several countries as an act of gross human rights
violation.It was investigated by the Intelligence agency of Khojoland and hence concluded
that the Tojolands Government was behind the brutal bomb blasts of 26 th November 2013 on
Capital city of Khojoland and also the accused were held directly responsible for this attack.28
As it was reported that both the accused were provided shelter by the chief of the Army Mr.
Sohail Kureshi at one of the Ministers place. The chief of the army also conviced the Prime
Minister that both were needed to survive their political aspirations. This had led to an
indirect political asylum for Mr. Changez soli and Mr. Shahnawaj who later on carried
campaign in favour of Zafar Ali Khan.29 This clearly shows the political nexus between the
accused and the Government. The acts performed by both of them were with the support and
under the direction of the state of Tojoland.This also implies the amount of power and
influence both the accused have on the Government of Tojoland.
There are different kinds of war crimes are defined under the rome statute. In Rome Statute
four kinds of war crime are mentioned. Under the first , it includes grave breaches of the
Geneva convention , which are specified in the Convention itself. It includes wilful killing ,
torture and inhuman treatment. Grave breaches are more particularly grave violation of
Humanitarian law.

28. Compromis 25
29 Compromis 24

The selection of the war crime is based on two different but closely linked, considerations:
first the norm should be part of Customary International Law , given that not all of the
treaties of international humanitarian law defining war crimes are universally accepted and
second, the violation of the norm must give rise to individual criminal responsibility under
customary law.30Two common elements of the war crimes are, first the context in which the
crime must be committed and second against whom or what the crime must be committed. In
the present case both the conditions of War crime are fulfilled and the accused henceforth can
be prosecuted under War crime. It is a known fact that there is a continuous state of
disturbance is going on between the two concerned state and the crime, Genocide has been
convicted against the state of Khojoland.
As per the treaty, signed between the State of Khojoland and State of Tojoland on July 26,
2014, Art. 4 & 531which clearly states that,there should be mutual assistance to each other
in the matters of maintaining peace and order and also priority to be given to the cases
concerning national security and integrity and both the states shall cooperate with each
other if there is violation of human rights. Therefore it becomes duty of Tojoland to avoid
providing any shelter and any kind of protection to war crime accused. In order to fulfil their
obligation towards OPENA TREATY, State of Tojoland is bound to cooperate with state of
Khojoland and hence help them in providing justice and punish the offender of war crime.
In addition, Geneva Conventions prohibits violence to life and person, in particular murder
of all kinds of civilians.32All four Geneva Conventions list wilful killing of protected

30 R.S Lee (ed.) , The International Criminal Court. The Making of the Rome
Statute , 1999
31. OPENA TREATY of COMPROMIS
32. Common Art.3 of the 1949 Geneva Conventions.

persons as a grave breach.33Also the prohibition of murder is recognized as a fundamental

guarantee by Additional Protocols I and II.34
In the Barcelona Traction case, the ICJ stated: An essential distinction should be drawn
between the obligations of a State towards the international community as a whole, and those
arising vis--vis another State in the field of diplomatic protection. By their very nature the
former are the concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection; they are obligations erga
omnes.35
The establishment of a permanent international criminal court having inherent jurisdiction
over these crimes is a convincing argument for the proposition that crimes such as genocide,
crimes against humanity, war crimes and torture are part of jus cogens and that obligations
erga omnes to prosecute or extradite flow from them36

If such type of violation of Human right is conducted, it automatically becomes the obligation
of State to prosecute or extradite the offenders so that justice can be delivered. One example
of this situation was observed in case of Belgium v. Senegal 37, the long-running attempt by
Belgium to persuade Senegal to prosecute Hissne Habr for torture allegedly committed
while he was president of Chad, or to extradite him to Belgium for prosecution there. In
33. First Geneva Convention, Art.50; Second Geneva Convention, Art.51; Third
Geneva Convention, Art.130; Fourth Geneva Convention, art. 147.
34. Protocol I, art. 75(2)(a) ; Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 4(2)(a) 8
June 1977, 1125 UNTS 609[AdditionalProtocol II].
35 Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32
(Feb. 5)
36 Report of the Preparatory Committee on the Establishment of an International
Criminal Court, U.N. GAOR 51st Sess., Supp No. 22, U.N. Doc A/51/22 (1996)
37. International Court of Justice Reports, 2012, p. 422

proceedings brought by Belgium, the International Court of Justice (the I.C.J.) discussed the
extent of the obligation to extradite or prosecute contained in the UN Convention on Torture,
and decided that Senegal should prosecute or extradite the offender to another country as
soon as possible.
It is therefore humbly submitted that the murder of civilians during the blast is considered as
breach by not only the Geneva Conventions, but also by the Customary International Law
and that the offenders had violated this law. Tojoland has played the instrumental role in
defending the offenders who were accused of war crimes by giving asylum to them.
Thus it is humbly submitted that Tojoland must avoid providing shelter to accuse so that
justice can be delivered to innocent person who died during the attacks.