THE 2013 JUSTICE P.N.

BHAGWATI
INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RGIHTS

IN THE INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS
THE CASE CONCERNING CONTROL OF WEAPONS & RESTORATION
OF DEMOCRACY AND PEACE
STATE OF FENIA
(APPLICANT)
V.

STATE OF MURKEY
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS

MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS...................................................................................II
INDEX OF AUTHORITIES...............................................................................V
STATEMENT OF JURISDICTION.....................................................................X
STATEMENT OF ISSUES...............................................................................XI
STATEMENT OF FACTS...............................................................................XII
SUMMARY OF PLEADINGS..........................................................................XV
PLEADINGS..................................................................................................1
I.THE KASSAD REGIME AND ITS REPRESENTATIVE CONSTITUTE AN
ILLEGAL GOVERNMENT IN FENIA AND AS SUCH LACK STANDING TO
APPEAR BEFORE THIS COURT ON BEHALF OF FENIA.......................1
A. KASSADS GOVERNMENT IS ILLEGITIMATE BECAUSE IT LACKS EFFECTIVE CONTROL
IN FENIA.................................................................................................................1
1) Effective control includes reasonable prospect of permanency, stability and popular
support................................................................................................................1
2)The Kassad government lacks reasonable prospect of permanency, stability and
popular support.........................................................................................................2
3).................................. The FFA exercises effective control over Fenia.

4)In the alternative, neither Kassad nor FFA exercise effective control over Fenia.
2
B. ALTERNATIVELY, KASSADS GOVERNMENT IS ILLEGITIMATE BECAUSE IT CAME TO POWER
IN VIOLATION OF THE PRINCIPLE OF POLITICAL PARTICIPATION..........................3
1) Right to political participation is a part of the corpus of Customary International Law.
3
2)Kassad was bound to respect the principle of political participation under ICCPR.
3
3)Kassads government has violated the principle of self-determination thereby
rendering it illegal....................................................................................................4
II. COUNTER INSURGENCY ACTIVITIES CARRIED OUT BY FENIAN SECURITY
FORCES AND THE HABBAS CONSTITUTE GROSS HUMAN RIGHTS
VIOLATIONS....................................................................................5
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MEMORIAL FOR THE RESPONDENT

A. THE COUNTER INSURGENCY ACTIVITIES CARRIED OUT BY THE FENIAN SECURITY FORCES
ARE IN GRAVE VIOLATION OF VARIOUS INTERNATIONAL HUMAN RIGHTS NORMS. 5
1) Fenian nationals have been subjected to torture, cruel, degrading and inhuman treatment.
5
2)The current situation in Fenia constitutes a non-international armed conflict 8
3)......The Fenian nationals were not treated humanely during this conflict

4)................................. Fenia has violated the right to life of its citizens.

10

B. THE

ARMED ACTIVITIES INVOLVED IN BY THE HABBAS ARE ILLEGAL AND AGAINST THE
SPIRIT OF INTERNATIONAL LAW............................................................................11

1) The activities of the Habbas are attributable to the State of Fenia...................12

2)In addition, Habbass actions constitute a breach of international obligations on
Fenias part.............................................................................................................13
III. MURKEY HAS NOT ACTED IN CONTRAVENTION OF ITS JUS COGENS
OBLIGATION TO PREVENT USE OF FORCE AND ITS INTERVENTION IN
FENIA IS NOT ILLEGAL...................................................................13
A. IMPLIED ACQUIESCENCE OF ARMED INTERVENTION BY THE UNITED NATIONS
MURKEY THE RIGHT TO INTERVENE IN FENIA......................................................14

GRANTS

1) The United Nations impliedly acquiesced to Murkeys intervention in Fenia. 14

2)In the alternative, the inaction at the international level forced Murkey to intervene
in Fenia on behalf of the Fenian civilians..............................................................14
B. ALTERNATIVELY,

MURKEYS ACTIONS ARE IN ACCORDANCE WITH ITS RIGHT

HUMANITARIAN INTERVENTION............................................................................15

OF

1) A right of Humanitarian Intervention exists in the customary international law.15

2)......Murkeys intervention in Fenia fulfils the criteria required for lawful
humanitarian intervention...................................................................................... 16
C. ADDITIONALLY, MURKEYS INTERVENTION IS BACKED BY THE EMERGING RIGHT TO PRODEMOCRATIC INTERVENTION................................................................................17
D.ALTERNATIVELY, MURKEY HAS THE CONSENT OF THE LEGITIMATE AUTHORITY
FENIA TO EXERCISE EFFECTIVE CONTROL................................................................18

OF

IV. FENIA HAS VIOLATED THE TREATY OF MCCW AND THE CONVENTION ON
CHEMICAL WEAPONS....................................................................19
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MEMORIAL FOR THE RESPONDENT

E. THE PRINCIPLE OF PACTA SUNT SERVANDA COMPELS FENIA TO COMPLY WITH THE TERMS OF
THE MCCW..........................................................................................................19
F......FENIA HAS VIOLATED ITS OBLIGATION UNDER THE CHEMICAL WEAPONS
CONVENTION..............................................................................................................20
1) Fenia has violated the object and purpose of the Chemical Weapons Convention
2)In any event, the Chemical Weapons Convention is indicative of custom.

20
20

G. FENIA

IS PRECLUDED FROM RAISING A DEFENCE UNDER ARTICLE 51 OF THE UN CHARTER

AS REGARDS THE CHEMICAL WEAPONS ISSUE.....................................................21

1) Armed attack is a prerequisite for invoking Art. 51...................................... 21

a) There is complete absence of an armed attack..........................................21
b)Article 51 cannot be invoked by any other violation of international law, if any
23
2) In the alternative, Fenias actions violate the principles of necessity and proportionality
of self defence..................................................................................................24
PRAYER AND CONCLUSION........................................................................26

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MEMORIAL FOR THE RESPONDENT

INDEX OF AUTHORITIES
TREATISES
B.Roth, Governmental Illegitimacy in International Law (Oxford University Press 2000)4, 18
D. W. Bowett, Self Defense in International Law (Clarendon Press,1958).............................17
Fernando R. Teson, Humanitarian Intervention 220 (3rd ed., Transnational Publishers 2005).15, 17
G Fox and B. Roth, Democratic Governance and International Law (Oxford University Press 2000)
..............................................................................................................................................18
Mc Nair , The Law of Treaties (Clarendon Press, 1961)..........................................................19
Oppenheim, International Law vol. 1. (Robert Jennings & Arthur Watts eds., 9th ed., Oxford U. Press
1996)......................................................................................................................................1
Reisman, Humanitarian Intervention to Protect the Ibos :Humanitarian Intervention and the United
Nations 167 ( Lilich ed. 1973).............................................................................................16
Yoram Dinstein, War, Aggression and Self-defence (3d ed., Cambridge University Press 2001)23
OTHER CASES
Al Adsani v The United Kingdom, Eur. Ct. H.R., Judgement of 21 November 2001................6
Ireland v. The United Kingdom, 5310/71,Council of Europe: European Court of Human Rights, 13
December 1977[ Ireland v. U.K]........................................................................................6, 7
Prosecutor v. Anto Furundzija [1998] ICTY 3...........................................................................6
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MEMORIAL FOR THE RESPONDENT

Sapphire v. National Iranian Oil Company ( 1963 ) 35 I.L.R. 136........................................19
UN DOCUMENTS
Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts,
Yearbook of the International Law Commission vol. II, Part Two, 2001............................12
Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, Report
of the ILC on the Work of its Fifty-Third Session UN Doc. A/56/10. (2001) [ASR]11, 12, 18
General Assembly Resolution 3314 (XXIX), 29(1) R.G.A. 142 (1974)..................................22
Representative Statement, UN SCOR, 3988th mtg. U.N. Doc. S/PV.3988 (1999).................16
U.N. Doc. A/RES/63/301 (2009)...............................................................................................3
UN Human Rights Committee (HRC), CCPR General Comment No. 20: Article 7 (Prohibition of
Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) 10 March 19925, 7
UN Human Rights Committee (HRC), CCPR General Comment No. 6: Article 6 (Right to Life), 30
April 1982............................................................................................................................11
Yearbook of the International Law Commission, 1980, Vol II, part I......................................24
CASES OF THE ICJ AND PCIJ
Argumentation of the United Kingdom Agent, Sir Eric Beckett, before the ICJ in the Corfu Channel
Case, 1949 I.C.J. 264...........................................................................................................17
Case Concerning Armed Activities on the Territory of Congo (Democratic Republic of Congo v.
Uganda), ICJ 1 July 2000....................................................................................................18
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MEMORIAL FOR THE RESPONDENT

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. 226......15
Legality of use of Force (Yugoslavia v Belgium), 1999 I.C.J...................................................16
North Sea Continental Shelf, (Federal Republic of Ger. v. Neth.), 1969 I.C.J. 3.....................15
JOURNAL ARTICLES
AC Bundu, Recognition of Revolutionary Authorities: Law and Practice of States, 27:1 I.C.L.Q. 18
(1978).....................................................................................................................................1
Antonio Cassese, Ex iniuria ius oritur: Are we Moving towards International Legitimation of Forcible
Humanitarian Countermeasures in the World Community, 10 Eur. J. Intl. L. 23 (1999)....16
Brad Roth, Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective
Control Doctrine, 11 Mel. J. Intl. L. 37 (2010)......................................................................3
CG Fenwick, The Recognition of New Governments Instituted by Force, 38:3 Am. J. Intl. L (July 1944)
................................................................................................................................................1
E. Miller, Self-Defence, International Law, and the Six Day War, 20 Is.L.R. 49 (1985).........23
Gregory Fox, The Right to Political Participation in International Law, 17 Yale J. Intl. L (1992) 3, 17
Jean DAspremont, The Rise and Fall of Democracy Governance in International Law: A Reply to
Susan Marks, 22 E.J.I.L. 549 (2011)......................................................................................3
Michael Reisman, Coercion and Self-Deternination: Constnting Charter Article 2(4), 78 Am. J. Intl. L.
642 (1984)............................................................................................................................18

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MEMORIAL FOR THE RESPONDENT

Thomas Franck, The Emerging Right to Democratic Governance, 86 Am. J. Intl. L (1992)3, 17
W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, Am. J. Intl
L. 84 (1990)..........................................................................................................................15
TREATIES AND CONVENTIONS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (26 June
1987) General Assembly resolution 39/46 of 10 December 1984.........................................6
Convention on the prohibition of the development, production, stockpiling and use of chemical
weapons and on their destruction, (13 January 1993), Doc. CD/CW/WP.400/Rev. 1.........20
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966).................3, 11
UN Charter arts. 41, 42......................................................................................................14, 21
Vienna Convention on the Law of Treaties (May 23, 1969), 1155 U.N.T.S. 331..............19, 20
MISCELLANEOUS
American Society of International Law and the International Judicial Academy General Principle of
International Law (September 2008)...................................................................................19
How is the Term "Armed Conflict" Defined in International Humanitarian Law? International
Committee of the Red Cross (ICRC) Opinion Paper March 2008.....................................8, 9
International Institute of Humanitarian Law The Manual on the Law of Non-International Armed
Conflict With Commentary..................................................................................................10

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MEMORIAL FOR THE RESPONDENT

Kersty McCourt and Manuel Lambert, Interpretation Of The Definition Of Torture Or Cruel, Inhuman
Or Degrading Treatment Or Punishment In The Light of European And International Case Law
[Interpretation of Torture]......................................................................................................7
L. B. Sohn, The International Court of Justice and the Scope of the Right of Self-Defense and the Duty
of Non-Intervention in International Law at a Time of Perplexity (Essays in Honour of Shabtai
Rosenne) 869........................................................................................................................23
Military and Paramilitary Activities in and against Nicaragua (Nicar. v.U.S.), Merits, 1986 ICJ Rep. 4
(June 27).....................................................................................................................8, 12, 23
DECISIONS OF ARBITRAL TRIBUNALS
Tinocco Concessions (Gr. Brit. v. Costa Rica), 1 U.N.R.I.A.A. 369 (1923)..............................1

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MEMORIAL FOR THE RESPONDENT

STATEMENT OF JURISDICTION

THE PRESENT DISPUTE HAS BEEN BROUGHT BEFORE THIS COURT PURSUANT TO
ARTICLE 36 (2) AND 40(1) OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

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MEMORIAL FOR THE RESPONDENT

STATEMENT OF ISSUES

Whether the Kassad regime and its representative government constitute an illegal government
in Fenia and as such have the legal standing to represent Fenia before this Court.

II Whether the counter-insurgency activities carried out by Fenian Security Forces and the Habbas
constitute gross human rights violations.

III Whether Murkey has violated the jus cogens obligation to prevent use of force and whether its
intervention in Fenia is illegal.

IV Whether Fenia has violated the Treaty of MCCW and the Convention on Chemical Weapons.

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MEMORIAL FOR THE RESPONDENT

STATEMENT OF FACTS

The Republic of Murkey is a country located in Western Asia. Fenia is a country to the
southeast of Murkey which gained independence in 1946. The post-independence period of Fenia was
tumultuous, and a large number of military coups and coup attempts shook the country in the period
19491971. Fenia was under Emergency Law from 1963 to 2011, effectively suspending most
constitutional protections for citizens. In 1970, Al-Kassad took over as the President of Fenia in a
military overthrow.
Al-Kassads regime was authoritarian and any open dissent directed towards the government
was repressed. This was witnessed through the Joma Massacre in which the government violently
suppressed an armed uprising led by the Muslim Brotherhood in the early 1980s, killing thousands
from the majority Sunni Muslim community. Al-Kassad died on 10 th June 2000 and was succeeded by
his son Faizal Kassad become legally eligible for nomination by the ruling Jamaath party. On 10 th July
2000, Faizal Kassad was elected President by referendum, in which he ran unopposed, garnering
97.29% of the vote.
Popular opposition against the government was stronger in early 2011. Around the same time,
the phenomenon of Khurab spring spread across the Khurab world, including Fenia, which began to
experience mass anti-government protests. This was characterized by protests, unrest, confrontations
and simultaneous demonstrations in major cities across Fenia which echoed the demand for democracy,
release of political prisoners, abolition of Fenia's 48-year emergency law, more freedoms, and an end to
pervasive government corruption. Many of the protesters detained experienced various forms of torture
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MEMORIAL FOR THE RESPONDENT

and ill-treatment. Many detainees were cramped in tight rooms and were given limited resources, and
some were beaten, electrically jolted, or debilitated. At least 27 torture centers, run by Fenian
intelligence agencies were revealed by Human Rights Watch.
In response to the use of lethal force against unarmed protesters, many soldiers and low level
officers and senior military officers began to desert from the Fenian Army. As the uprising progressed,
government officials began to defect as well to the opposition. On 29th July, a group of defected officers
announced the formation of the Free Fenian Army (FFA), which became the main opposition army. On
23rd August, a coalition of anti-government groups known as the Fenian National League (FNL) was
formed with Mr. Syed Anwar as their leader. Throughout August, Fenian forces were involved in heavy
military crackdown and the struggle of opposition and FFA continued with government forces and
Habba militia who continued to fire on civilians as well as throughout the country.
By the end of October, Syed Anwar and Hussein Shahgar pleaded for international aid. The
United Nations urged the powerful and the Developed nations to take care of Fenia and to protect the
human rights of the Civilians by an Army Intervention. All the States were reluctant to proceed with the
Fenia matter and none but Murkey decided that it would answer the call and would proceed with
establishing democracy and restoration of all civil and political rights to the subjects of Fenia. The FFA
received military support from Murkey, who allowed the rebel army to operate from the country's
territory.
Attempts by the international community to agree a transitional government of national unity
failed. Fenian opposition groups rejected the UN-brokered peace plan. The overall

international

inaction by the international community members prompted Murkey to deploy its armed forces on the
Fenian-Murkey border. Murkish forces merely gained control of all four border checkpoints between
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MEMORIAL FOR THE RESPONDENT

Fenia and Jiraq. However, by 25 th July, Faizal Kassad government was using fighter jets to attack the
Murkish armed forces.
Upon the diplomatic intervention by the State of Zabrael, a Treaty of Mutual Co-operation and
Control of Weapons (MCCW) was entered into by Fenia and Murkey wherein they decided to refrain
from the use of weapons of any kind and to cooperate with each other in the maintenance of peace and
security. A Special clause was also inserted which dictated that the State of Fenia shall declare fair
elections.
However, Fenia refused to declare elections and its armed forces indulged in Chemical loaded
rockets attack on the Army base established in the Fenian Murkey Borders in clear violation of the
treaty.
According to The Strategic Research Centre as of August 13th, 2012, more than 25,000 Fenians
had been killed since the revolt began in March 2011. The Critish-based Fenian Observatory for
Human Rights reported on August 10 that at least 22,242 people have been killed since March 2011. As
of August 15, 155,226 refugees have registered with the United Nations (U.N.)
The negotiations between the Fenia and Murkey did not result into any agreement and Fenia
decided to bring the matter to the International Court of Justice.

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MEMORIAL FOR THE RESPONDENT

SUMMARY OF PLEADINGS
It is submitted that the Kassads government is illegal and hence lacks standing before this
Court. It is illegitimate because it lacks effective control in Fenia. In fact it is the FFA which exercises
effective control over Fenia. In any event, neither the FFA nor the Kassads government exercises
effective control. Alternatively it is contended that Kassads government is illegitimate because it came
into power in violation of the principle of political participation and the right of self-determination.
Secondly, it is contended that the counter-insurgency activities carried out by the Security
forces and the Habbas amounted to gross human rights violations. Fenian nationals have been subjected
to torture, cruel, degrading and inhumane treatment. Also, the current situation in Fenia qualifies as a
non-international armed conflict and Fenia has failed to comply with the necessary obligations during
such times. Fenia has also violated the right to life of its citizens. The activities of the Habbas which
can be attributed to the State of Murkey also constitute human right violations.
It is submitted that Murkey has not violated its jus cogens obligation not to use force and its
intervention in Fenia is not illegal. Murkey had implied acquiescence by the United Nations.
Alternatively it is submitted that Murkeys actions are in consonance with its right of humanitarian
intervention. Murkeys intervention is also backed by the emerging right of pro-democratic
intervention. Alternatively it is contended that Murkey has the consent of the legitimate authority of
Fenia to intervene.
It is submitted that Fenia has violated the Treaty of MCCW and the Convention on Chemical
Weapons. The principle of pacta sunt servanda compels Fenia to abide by the terms of MCCW. Fenia
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MEMORIAL FOR THE RESPONDENT

has also violated its obligations under the Chemical Weapons Convention. Fenia is also precluded from
raising a defence under Article-51 of the UN Charter.

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PLEADINGS

I.
THE KASSAD REGIME AND ITS REPRESENTATIVE
CONSTITUTE AN ILLEGAL GOVERNMENT IN FENIA AND AS
SUCH LACK STANDING TO APPEAR BEFORE THIS COURT
ON BEHALF OF FENIA
A. KASSADS GOVERNMENT IS ILLEGITIMATE BECAUSE IT LACKS
EFFECTIVE CONTROL IN FENIA.
1) Effective control includes reasonable prospect of permanency,
stability and popular support.
A government needs a reasonable prospect of permanency, a sufficient degree of
stability and the habitual and willing obedience of the bulk of population to meet the test
of effective control.1Stability requires that the government is in control of the administrative
machinery of the state and does not face open resistance to its authority. 2Disorder of a
revolutionary character is evidence that effective control will not be maintained. 3Popular support

is also required because it is the proper evidence of effectiveness. The Kassad government
is not completely in control of the administrative machinery 4 and also is facing open
1AC

Bundu, Recognition of Revolutionary Authorities: Law and Practice of States, 27:1

I.C.L.Q. 18 (1978); Oppenheim, International Law vol. 1. pts. 2-4 528 (Robert Jennings &
Arthur Watts eds., 9th ed., Oxford U. Press 1996).

2CG

Fenwick, The Recognition of New Governments Instituted by Force, 38:3 Am. J. Intl. L.
448 (July 1944).

3Tinocco

Concessions (Gr. Brit. v. Costa Rica), 1 U.N.R.I.A.A. 369, 379 (1923).

Compromis para.25.

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resistance.5 The Kassad government is not completely in control of the administrative

machinery6 and also is facing open resistance.7
2) The Kassad government lacks reasonable prospect of permanency,
stability and popular support.
Becausee of the continuous opposition faced by the Kassad government and defection
by its own members, it lacks permanency, stability and popular support.8
3) The FFA exercises effective control over Fenia.
Whereas on one hand, the Kassad government fails to fulfil the criteria of
permanency, stability and popular support, the FFA checks all these conditions and thus can
be said to exercise effective control over Fenia.9

Compromis para.para.21-24

Compromis para.25.

Compromis paras. 21-24

Compromis. paras.21-25

9 Id.
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4) In the alternative, neither Kassad nor FFA exercise effective control

over Fenia.
In 1994, the Security Council noted that because a power vacuum existed in Somalia,
no regime could bind that state in international law. The power vacuum as it exists in Fenia
renders both the Kassad government as well as the FFA ineffective from exercising control
over Fenia.
B. ALTERNATIVELY, KASSADS GOVERNMENT IS ILLEGITIMATE
BECAUSE IT CAME TO POWER IN VIOLATION OF THE PRINCIPLE OF
POLITICAL PARTICIPATION.
Even if this Court should come to the conclusion that Kassads government exercises
effective control, Murkey submits it should independently determine that the Kassad regime
is illegitimate because it came to power through non-participatory means.
1

Right to political participation is a part of the corpus of Customary

International Law.

In the early 1990s, state practice signalled the emergence of a right to

politicalparticipation or a right to democratic governance in international law.10Recent
state practice in response to non-democratic coups in Madagascar

11

and Honduras12

demonstrates that this norm has crystallized in customary international law.13

10Gregory Fox,

The Right to Political Participation in International Law, 17 Yale J. Intl. L.

539 (1992) [Gregory Fox]; Thomas Franck, The Emerging Right to Democratic Governance,
86 Am. J. Intl. L. 46 (1992) [Thomas Franck].

11Brad

Roth, Secessions, Coups and the International Rule of Law: Assessing the Decline of
the Effective Control Doctrine, 11 Mel. J. Intl. L. 37, 46 (2010).

12 U.N.

13Jean

Doc. A/RES/63/301 (2009).

DAspremont, The Rise and Fall of Democracy Governance in International Law: A

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5) Kassad was bound to respect the principle of political participation

under ICCPR.
Article 25 of the International Covenant on Civil and Political Rights (ICCPR)
provides everycitizen with the right to take part in the public affairs of the state. 14 The Article
has been interpreted to provide the right to challenge the government. 15 Violation of the
article is a violation of the principle of pacta sunt servanda..
Kassads government has violated this principle on two counts, firstly, he was elected
President by a referendum in which he ran unopposed and this process did not involve the
political participation of the people16 and secondly, the government has violated the promise
to declare elections and establish democracy.17

14International Covenant on

Civil and Political Rights, 999 U.N.T.S. 171 (1966), art.25

[hereinafter ICCPR].; H.R.C., General Comment 25, U.N. Doc.
CCPR/C/21/Rev.1/Add.7(1996).

15 B.Roth,

Governmental Illegitimacy in International Law 336 (Oxford University Press

2000). [B. Roth].

16 Compromis

para.20.

17 Compromis

para.32-33.

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6) Kassads government has violated the principle of self-determination

thereby rendering it illegal.
The right of peoples to self-determination is one of the essential principles of
international law to which the character of an obligation erga omnes and even of jus cogens is
attributed. Article 1 of the ICCPR grants all people the right to freely determinetheir political
status. This right has been interpreted by many states to require democratic government.
Moreover, non-democratic states now claim legitimacy not by challenging the democratic
order but byattempting to credibly claim democratization. Not only this, but a government is
regarded illegal in international law when its policy is clearly directed against the interests of
its own people.
The Kassad government by attacking and violating fundamental rights of its own people has
condemned itself as being against the interests of its own people18
II.

COUNTER INSURGENCY ACTIVITIES CARRIED OUT BY

FENIAN SECURITY FORCES AND THE HABBAS CONSTITUTE
GROSS HUMAN RIGHTS VIOLATIONS.

A THE COUNTER INSURGENCY ACTIVITIES CARRIED OUT BY THE FENIAN SECURITY

FORCES ARE IN GRAVE VIOLATION OF VARIOUS INTERNATIONAL HUMAN RIGHTS
NORMS.
1

Fenian nationals have been subjected to torture, cruel, degrading and

inhuman treatment.

Article-7 of the ICCPR says that, No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. No derogation from the provisions of article
7 is allowed and its provisions must remain in force even in times of public emergency.19
18 Compromis

para.para. 24, 34.

19UN

Human Rights Committee (HRC), CCPR General Comment No. 20: Article 7
(Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment),
para-2 ,10 March 1992 [General Comment 20].

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The UN Convention against Torture definition provides that torture is any act by
which severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person, or for any reason based
on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising from, inherent in or incidental
to lawful sanctions.20 This definition has been held to constitute customary international
law.21
The prohibition of torture and other forms of ill-treatment has achieved the status of
jus cogens which Fenia has breached22 Fenia committed numerous acts that amounted to

20 Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment Article 1,( 26 June 1987) General Assembly resolution 39/46 of 10 December
1984.

21 Prosecutor

v. Anto Furundzija [1998] ICTY 3, 160.

22Al Adsani v The United

Kingdom, Eur. Ct. H.R., Judgement of 21 November 2001, 60-

61.;
Ireland v. The United Kingdom, 5310/71,Council of Europe: European Court of Human
Rights, 13 December 1977[ Ireland v. U.K] , 163.

Page | 1

torture and other ill-treatment. The Joma massacre wounded and killed between 10,000 and
25,000 civilians.23 The Fenian police often responded to protests by civilians with tear gas,
water cannons, beatings and even live ammunition.24 Many of the detainees experienced
various forms of torture and ill-treatment. Many were cramped in tight rooms and were given
limited resources, and some were beaten, electrically jolted, or debilitated. Atleast 27 of such
torture centres run by the Fenian intelligence agencies were revealed by Human Rights
Watch.25 The Fenian Navy was also involved in military crackdown.26 The government forces
and Habba militia continuously fired on the civilians.27
An act of torture or ill-treatment must reach a minimum level of severity to qualify as a
reprehensible act. The ECHR held that this depends on the duration its physical or mental

23 Compromis,

para-18.

24 Compromis,

para-24.

25 Compromis,

para-24.

26 Compromis,

para-26.

27 Compromis,

para-26.

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effects and on the sex, age and state of health of the victim.28 Thus in this case the act by
Fenian security forces which killed and injured many people clearly reaches the minimum
threshold and qualifies as an act of torture.
The perpetrators of such acts must be acting in their official capacity.29 This was also
stated by the UN Human Rights Committee, in its General Comment no.20, stated that art. 7
of the International Covenant on Civil and Political Rights apply to the acts prohibited
whether inflicted by people acting in their official capacity, outside their official capacity or
in a private capacity

30

in this case the acts of the Security forces were within their official

capacity.
Also, it is required that the acts of torture or ill-treatment must be inflicted with a
particular purpose which in this case was intimidation and punishment. A state has the duty to
abstain and also to protect individuals from human rights violations. This has also been
confirmed in Article 2(1) of the Convention against Torture, which states that, Each State
Party shall take effective legislative, administrative, judicial or other measures to prevent
acts of torture in any territory under its jurisdiction. In this case, Fenia clearly has violated
this rule by not abstaining from committing human rights violations and also by not
28Ireland

v. U.K , 162. .

29 Kersty McCourt

and Manuel Lambert, Interpretation Of The Definition Of Torture Or

Cruel, Inhuman Or Degrading Treatment Or Punishment In The Light of European And
International Case Law at pg-9 [Interpretation of Torture].

30General Comment 20,

para-3.

Page | 1

protecting human rights of its civilians. Thus in this case, Fenias acts fulfil all the
requirements of torture and subsequently cruel, inhuman and degrading treatment.
7) The current situation in Fenia constitutes a non-international armed
conflict
Common article 3 of the Geneva Convention 1949 applies to "armed conflicts not of
an international character occurring in the territory of one of the High Contracting Parties".
Within the meaning of the Common article 3, non-international armed conflicts are those in
which one or more governmental armed groups are involved. The hostilities may occur
between governmental armed forces and non-governmental armed groups or between such
groups only.31 The International Court of Justice has opined that Common Article 3 represent
customary international law in both international and non-international armed conflict.32
It is submitted that the hostilities between the Fenian governments armed forces and
the FFA constitutes an armed conflict. There are two criteria that need to be fulfilled:
First, the hostilities must reach a minimum level of intensity. This may be the case,
for example, when the hostilities are of a collective character or when the government is
obliged to use military force against the insurgents, instead of mere police forces. 33 Here, the
Fenian Security forces were involved who suppressed any kind of protests against the

31 How

is the Term "Armed Conflict" Defined in International Humanitarian Law?

International Committee of the Red Cross (ICRC) Opinion Paper at pg-3 March 2008.
.

32 Military and

33Supra

Paramilitary Activities in and against Nicaragua (Nicar. v.U.S.), Merits, 1986

note,32. .

Page | 1

government.34 Further, the Fenian Navy also was involved in the military crackdown. 35 This
shows that the hostilities in Fenia did reach the minimum threshold of intensity where
military was deployed by the Fenian government.
Second, non-governmental groups involved in the conflict must be considered as
parties to the conflict, meaning that they possess organized armed forces. This means for
example that these forces have to be under a certain command structure and have the capacity
to sustain military operations.36 In this case FFA was mainly composed of defected Fenian
Armed Forces personnel was the main opposition army with Hussein Shahgar as its Head. 37
They received military support from Murkey which allowed them to operate from their
territory.38 This shows that the FFA were organised, were under a command structure and also
were capable of conducting military operations. Thus the hostilities in Fenia qualify as a noninternational armed conflict.
34 Compromis,

para-24.

35 Compromis, para-26.

36 Supra

note, 32. .

37 Compromis,

para-25.

38 Compromis,

para-27.

Page | 1

8) The Fenian nationals were not treated humanely during this conflict
The broad requirement of humane treatment is derived from both Common Article
3(1) of the Geneva Conventions and Articles 2.1 and 4.1 of Additional Protocol II. It now
reflects customary international law.39 The following acts are prohibited at any time by
Common

Article

during

non-international

armed

conflict.

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;
In this case the Fenian government subjected its citizens to torture and ill-treatment
where it maintained torture centres40 there was constant firing on the civilians in order to
suppress protests.41
(b) Outrages upon personal dignity, in particular humiliating and degrading treatment;
Fenia often responded to protests by unarmed protesters using tear gas, water cannons,
beatings and even live ammunition.42 This shows that Fenia in the current situation of noninternational armed conflict has committed acts which have been strictly prohibited by the
39 International Institute of Humanitarian Law The Manual on the Law of NonInternational Armed Conflict With Commentary at pg-14.

40 Compromis,

para-24.

41 Compromis,

para-26.

42 Compromis

para-24.

Page | 1

common article. This shows that Fenia in the current situation of non-international armed
conflict has committed acts which have been strictly prohibited by the common article 3
which has assumed the character of a custom.
9) Fenia has violated the right to life of its citizens.
Article 6 (1) of the ICCPR provides that every human being has the inherent right to
life. No one shall be arbitrarily deprived of his life. It is the supreme right from which no
derogation is permitted even in time of public emergency which threatens the life of the
nation.43
States parties should take measures not only to prevent and punish deprivation of life
by criminal acts, but also to prevent arbitrary killing by their own security forces. The
deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore,
the law must strictly control and limit the circumstances in which a person may be deprived
of his life by such authorities.44 In this case clearly the Fenian security authorities have
resorted to arbitrary killings in an attempt to suppress the protests against the government.
This shows that Fenia has violated the right to life of its citizens.
C. THE

ARMED ACTIVITIES INVOLVED IN BY THE

THE SPIRIT OF INTERNATIONAL LAW.

HABBAS

ARE ILLEGAL AND AGAINST

An internationally wrongful act entails the responsibility of a state and the key
components of establishing a wrongful act are attribution to the said country and breach of an

43 ICCPR, Article-4

(Dec. 16, 1996), 999 U.N.T.S. 171. ]

44 UN

Human Rights Committee (HRC), CCPR General Comment No. 6: Article 6 (Right to
Life), at para-1, 30 April 1982.

Page | 1

existing international obligation.45 It is submitted that the acts of the Habbas which
constitutes a breach of its international obligations are attributable to the State of Fenia.
1

The activities of the Habbas are attributable to the State of Fenia.

Attribution is the first essential condition in order to prove that the wrongful conduct
of a state entails international responsibility.46 Article 8 of the draft articles on the
responsibility of states for internationally wrongful acts provides that when private persons
act under the States direction and control, its acts can be attributed to that State.47
The doctrine of effective control was established in The Military and Paramilitary
Activities in and against Nicaragua case48 . By such effective control, the Court meant that
the US should have directed or enforced the perpetration of the acts contrary to human
rights and humanitarian law alleged by the applicant State . 49
45 Draft Articles

on Responsibility of States for Internationally Wrongful Acts with

Commentaries, Report of the ILC on the Work of its Fifty-Third Session,Article-1 UN Doc.
A/56/10. (2001) [ASR].

46 Commentary on the Draft Articles on Responsibility of States for Internationally

Wrongful Acts, Yearbook of the International Law Commission, at 34 vol. II, Part Two, 2001.

47 ASR, Article-8.

].

48 Nicaragua para

109, 115. .

49 Id

para 115

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In this case, the Habbas were the Kassad regimes armed civilian proxies and most
zealous sympathizers.50 They were closely involved with the Security forces in brutal
crackdown of the widespread protests.51 They were involved in preventing tent encampments
and preventing movement of protests,52 firing on the civilians in the city.53 This shows that
the Habbas acted in enforcement of the perpetration of the acts by the Fenian Sate contrary to
human rights and humanitarian law. Also, the fact that they were involved in crackdown
alongside the Security forces shows that without support from the Fenian government they
would not have committed the said acts. Hence this shows that Fenia exercised effective
control over the Habbas militia. Thus the acts of the Habbas are attributable to the State of
Fenia.
10) In addition, Habbass actions constitute a breach of international
obligations on Fenias part.
The Habbas were closely involved with the Security forces in brutal crackdown of the
widespread protests by the FFA. They were involved in constantly firing on the civilians in

50 Compromis,

para-15

51 Compromis,

para-24

52 Compromis,

para-25

53 Compromis, para-26
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the city54. The Habbas by engaging in similar activities like the security forces have
committed the similar human rights violations including violation of peoples rights to life,
actions amount to torture and other ill-treatment.
This shows that the acts of the Habbas constitute a breach of international obligations
of the Fenian state. Thus the Fenia is responsible for the illegal acts of the Habbas.
III.

MURKEY HAS NOT ACTED IN CONTRAVENTION OF ITS JUS

COGENS OBLIGATION TO PREVENT USE OF FORCE AND
ITS INTERVENTION IN FENIA IS NOT ILLEGAL.

A IMPLIED ACQUIESCENCE OF ARMED INTERVENTION BY THE UNITED

NATIONS GRANTS MURKEY THE RIGHT TO INTERVENE IN FENIA
1

The United Nations impliedly acquiesced to Murkeys intervention in

Fenia.

The United Nations, especially the Security Council is empowered to authorise states,
or groups of states to use force. This can be done in two ways, firstly, by invoking Chapter
VII and secondly, by establishing the means required to remove the desired threat. 55 By the
end of October, Syed Anwar and Hussein Shahgar pleaded for international aid from the other
and neighboring countries. The United Nations has called for an urgent debate on the Fenia
issue and urged the powerful and the Developed nations to take care of the Fenia and to
protect the human rights of the Civilians by an Army Intervention. All the States were
reluctant to proceed with the Fenia matter and none but Murkey decided that it would answer
the call and would proceed with establishing democracy and restoration of all civil and

54 Compromis,

para-26

55 UN Charter arts. 41, 42.

Page | 1

political rights to the subjects of Fenia.56 It is contended that in this case, the United Nations
has resorted to the second type of authorisation. The means to remove the threat in this case
is the call to take care of Fenia and protect the human rights of the Civilians by an Army
Intervention. This when interpreted in good faith authorises Member nations rising to this
call, in this case, Murkey to use force in order to restore democracy and protect the human
rights of the Fenians.
11) In the alternative, the inaction at the international level forced
Murkey to intervene in Fenia on behalf of the Fenian civilians.
It is contended by Murkey in this case that the inaction at the international level,
amplified by the double veto against the resolution imposing sanctions against the despotic
Fenian government prompted it to intervene on behalf of the Fenian civilians. 57 The
international community in this scenario has failed to do anything more than condemnation of
the use of force thus to all intents and purposes validating it.58
D. ALTERNATIVELY, MURKEYS ACTIONS ARE IN ACCORDANCE
WITH ITS RIGHT OF HUMANITARIAN INTERVENTION.
The Respondent submits that humanitarian forms a part of the corpus of customary
international law even though it may not have received formal legal standing as an exception

56 Compromis

Para. 27

57 Compromis

para. 31.

58 W. Michael

Reisman, Sovereignty and Human Rights in Contemporary International Law,

Am. J. Intl L. 84 (1990) 866.

Page | 1

to the general rule regarding use of force in the international community. It is this custom that
gave Murkey the right to intervene amidst the humanitarian crisis ensuing in the State of
Fenia.
1

A right of Humanitarian Intervention exists in the customary

international law.

Customary international law comprises established, widespread and consistent State

practice,59 and opinio juris, a subjective, psychological element that requires it to be accepted
as law.60 A custom of humanitarian intervention is recognized in the writings of Grotius. 61 A
strong continuum of state practice has affirmed humanitarian intervention in both the pre and
post-Charter era.62
North Atlantic Treaty Organisation ("NATO") States involved in the bombing over
Kosovo to end the repression of ethnic Albanians by Yugoslavia sought to justify their actions
59 Statute of the International Court of Justice [1945] 1 UNTS 993 [ICJ Statute], Art.38(1)
(b)North Sea Continental Shelf, (Federal Republic of Ger. v. Neth.), 1969 I.C.J. 3,para.77.

60 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. 226
para-73[Nuclear Weapons case].

61 Fernando R. Teson, Humanitarian Intervention an Inquiry into Law and Morality 220,
225-226 (3rd ed., Transnational Publishers 2005).

62 Reisman, Humanitarian Intervention to Protect the Ibos :Humanitarian Intervention and

the United Nations 167, 179. ( Lilich ed. 1973).

Page | 1

inter alia on the basis of an international obligation to prevent a humanitarian catastrophe and
rescue a population in danger.63 The UN Security Council did not pass a resolution
condemning the NATO action. Instead, it passed Resolution 1244, which approved the terms
of the ceasefire and led to the replacement of Yugoslav troops in Kosovo by UN, NATO and
Russian troops.
12) .Murkeys intervention in Fenia fulfils the criteria required for lawful
humanitarian intervention.
The obligatory criteria for lawful Humanitarian Intervention are largely agreed
upon.64 First, the purpose must be to prevent mass atrocities, which the local government is
committing or unable to stop; second, the SC must be unable to uphold its responsibility to
maintain peace and security; third, intervention must be necessary; fourth, the action must
be proportionate; and finally, the Humanitarian Intervention must not be opposed by a
majority of states.65 It is submitted that Murkey fulfilled each of these criteria.
E. ADDITIONALLY, MURKEYS INTERVENTION IS BACKED BY THE
EMERGING RIGHT TO PRO-DEMOCRATIC INTERVENTION.
Article 2(4) must be read to prohibit only those military measures that are
accompanied by a specific intent to violate the territorial integrity or political independence
63 Legality of use of Force (Yugoslavia v Belgium), 1999 I.C.J. .

64 Antonio

Cassese, Ex iniuria ius oritur: Are we Moving towards International Legitimation

of Forcible Humanitarian Countermeasures in the World Community, 10 Eur. J. Intl. L. 23,
28-29 (1999); Representative Statement, UN SCOR, 3988th mtg. U.N. Doc. S/PV.3988
(1999).

65 Id.

Page | 1

of a state.66 No such intention can be gleaned in the present instance wherein Murkey only
provided initial support67 to FFA in their pursuit to stand up to a clearly autocratic
government and took measures across the border, never once physically entering Fenia nor
threatening its political independence in any manner.
Further, it is submitted that force aimed at restoring a democratically elected
government does not fall within the scope of the prohibition of the use of force contained in
Article 2(4).68 Indeed, pro-democratic interventions are consistent with the purposes of the
United nations as they seek to further human rights 69 in accordance with the Preamble and
Article 55 of the United Nations Charter, as well as the principles of self-determination. 70

66 Argumentation of the United Kingdom Agent, Sir Eric Beckett, before the ICJ in the
Corfu Channel Case, 1949 I.C.J. 264, 296; D. W. Bowett, Self Defense in International Law
152 (Clarendon Press,1958).

67 Compromis, para- 28.

68 Teson, 151 (arguing that the use of force to overthrow "despotic regimes" cannot be
prohibited). ).

69 Thomas Franck, 89. ]. Gregory Fox, 539. ]

70 Michael Reisman, Coercion and Self-Deternination: Constnting Charter Article 2(4), 78

Am. J. Intl. L. 642, 643 (1984) (noting that "the basic policy of contemporary international
law has been to maintain the political independence of territorial communities so that they
can continue to express their desire for political community in a form appropriate to them").

Page | 1

According to Reisman, Unilateral armed intervention to support or restore democracy did not
violate sovereignty and therefore international law- but instead upheld and vindicated it.71
F. ALTERNATIVELY, MURKEY HAS THE CONSENT OF THE
LEGITIMATE AUTHORITY OF FENIA TO EXERCISE EFFECTIVE CONTROL.
That consent may validate an otherwise wrongful military intervention into the
territory of the consenting state is a generally accepted principle. 72 The ICJ has confirmed and
applied the general rule that intervention is allowable at the request of the government in the
case of Armed Activities on the Territory of the Congo73. It is submitted that, since FFA and
FNL were the legitimate authorities in Fenia by the virtue of exercising effective control 74
as previously contended, they had the authority to invite external authorisation.

71 G Fox and B. Roth, Democratic Governance and International Law 262 (Oxford
University Press 2000).

72 ASR, Article-20.

].

73 Case Concerning Armed Activities

on the Territory of Congo (Democratic Republic of

Congo v. Uganda), ICJ 1 July 2000, paras.42-53

74 B.

Roth,138-141.

Page | 1

IV.

FENIA HAS VIOLATED THE TREATY OF MCCW AND THE CONVENTION

ON CHEMICAL WEAPONS.
G.
THE PRINCIPLE OF PACTA SUNT SERVANDA COMPELS
COMPLY WITH THE TERMS OF THE MCCW.

FENIA

TO

There is a general presumption against the existence of any right of unilateral

termination of a treaty.

75

The customary international rule of pacta sunt servanda76 which

implies that agreements must be kept is also stated in Article-26 77 of the VCLT. According to
the Court in Sapphire v. National Iranian Oil Company78 the rule of pacta sunt servanda is the
basis of every contractual relationship. The Treaty of Mutual Co-operation and Control of
Weapons (MCCW) was entered into by Fenia and Murkey.79 They mutually agreed in the
treaty to refrain from making use of weapons of mass destruction, more particularly,
75

Mc Nair , The Law of Treaties 493 (Clarendon Press, 1961)

76 American

Society of International Law and the International Judicial Academy General

Principle of International Law (September 2008).

77 Every treaty in

force is binding upon the parties to it and must be performed in good

faith Vienna Convention on the Law of Treaties, Article-26 (May 23, 1969), 1155 U.N.T.S.
331 [Vienna Convention].

78 Sapphire v. National Iranian

79 Compromis,

Oil Company ( 1963 ) 35 I.L.R. 136.

para-32.

Page | 1

Chemical and Nuclear Weapons.80 Fenia by indulging in Chemical loaded rockets attack on
the Army base established in the Fenian-Murkey borders 81 has clearly violated one of the
essential terms of the Treaty. Thus it is submitted that Fenia has violated the principle of
pacta sunt servanda.
H.

FENIA

HAS VIOLATED ITS OBLIGATION UNDER THE

WEAPONS CONVENTION.

CHEMICAL

Fenia has violated the object and purpose of the Chemical Weapons
Convention

A State is obliged to refrain from acts which would defeat the object and purpose of a
treaty when it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its intention clear not
to become a party to the treaty.82 Fenia is a signatory to the Chemical Weapons Convention
but has not ratified the same.83 The main object of the CWC is to completely ban
development, production and stockpiling of bacteriological (Biological) and toxin weapons. 84
It is submitted that Fenia by indulging in Chemical loaded rockets attack on the Army base
80

Compromis Annexure MCCW- Article-2.

81 Compromis,

para-33.

82 Vienna Convention, Article-18.

83 Clarifications

to the Compromis, No-1.

Page | 1

established in the Fenian-Murkey borders has violated its obligations under the Chemical
Weapons Convention.85
13) In any event, the Chemical Weapons Convention is indicative of
custom.
The CWC has 188 State parties to it.86 This implies that almost all the States across
the world have a consensus with regards to the obligations under the CWC, thus indicating
custom. Thus Fenias acts of indulging in chemical loaded rockets attack is in clear violation
of international law.
I. FENIA IS PRECLUDED FROM RAISING A DEFENCE UNDER
ARTICLE 51 OF THE UN CHARTER AS REGARDS THE CHEMICAL WEAPONS
ISSUE.
The UN Charter provides only two exceptions to the general prohibition on use of
force firstly, a Chapter VII authorisation by the Security Council and secondly, as self
defence in response to an armed attack.87
84 Convention

on the prohibition of the development, production, stockpiling and use of

chemical weapons and on their destruction, (13 January 1993), Doc. CD/CW/WP.400/Rev.
1[Chemical Weapons Convention].

85 Compromis,

86 Supra

87 UN

para-32.

note- 85. ].

Charter Arts. 4, 42, 51. .

Page | 1

Article 51 which deals with self defence states specifically that armed attack is a
prerequisite to the use of force or threat of use of force in self defence. It is contended thusly,
that Fenia is precluded from raising a defence under Article 51 in the absence of an armed
attack and thus, its actions are in violation of international law.
1
a)

Armed attack is a prerequisite for invoking Art. 51

There is complete absence of an armed attack

The use of the phrase armed attack in Article 51 is not inadvertent. The framers of
the Article preferred that expression to the term aggression, which appears elsewhere in the
Charter (in the contexts of the Purposes of the United Nations (Article 1(1)), collective
security (Article 39) and regional arrangements (Article 53(1)).88 The choice of words in
Article 51 is deliberately restrictive. The exercise of the right of self defence, in compliance
with the article, is confined to a response to an armed attack.
An armed attack is, of course, a type of aggression. The consensus on Definition of
Aggression, adopted in 1974 by the General Assembly

89

, while not pretending to be

exhaustive, does not cover the threat of force. 90 The meaning of the term aggression can be
stretched to include mere threats. But only a special form of aggression amounting to an
armed attack justifies self-defence under Article 51. The French version of the Article
88 Id.

Arts. 1, 39, 53.

89 General Assembly Resolution

90 .Id.3

3314 (XXIX), 29(1) R.G.A. 142 (1974).

(Articles 24).

Page | 1

clarifies its thrust by speaking of une agression armee Under the Charter, a State is
permitted to use force in self-defence only in response to aggression which is armed.
The thesis of self-defence as a legitimate recourse to force by Fenia is inextricably
linked to the antithesis of the employment of unlawful force by Murkey. Under no
circumstances can the actual use of force by both parties to a conflict be lawful
simultaneously. If Murkey is properly exercising the right of self-defence, Fenia must be in
violation of the corresponding duty to abstain from an illegal resort to force. At bottom, selfdefence consistent with Article 51 implies resort to counter-force: it comes in reaction to the
use of force by the other party. When there has been no use of force by the state of Murkey,
this argument of self-defence falls flat.
It is contended that there is no aggression, nor armed aggression amounting to an
armed attack which can make Fenia invoke article 51. The severe response by Fenia to an
alleged external aggression is uncalled for and illegal.
b)
Article 51 cannot be invoked by any other violation of
international law, if any
Pursuant to Article 51 only an armed attack and nothing short of an armed attack
can precipitate a forcible reaction of self-defence.

91

The requirement of an armed attack as a

condition of legitimate self-defence, in accordance with Article 51, precludes not only threats.
Recourse to self-defence under the article is not vindicated by any violation of international
law short of an armed attack. Even declarations of war, if it is evident to all that they are
unaccompanied by deeds, are not enough. The notion that mere mobilization or bellicose
utterances as such may justify self-defence within the framework of Article 51, 92 has no
foundation.
91 Yoram Dinstein,

War, Aggression and Self-defence (3d ed., Cambridge University Press

2001).

Page | 1

The mere activity of aiding and supporting the rebel FFA against the illegitimate
Kassad government is not illegal and moreover does not constitute an armed attack. This
has been an established principle since the Court did not brand as an armed attack the supply
of weapons and logistical support to rebels against a foreign State 93, a no-mans-land
unfolds between the type of military assistance that a third State can legitimately provide and
the direct exercise of collective self-defence in response to an armed attack. 94 Although it is
contended that Murkeys responses to Fenian citizens call for help is not illegal or in
violation of any international law norms, even in the alternative, Fenia cannot invoke Article
51 for the use of chemical weapons.
14)

In the alternative, Fenias actions violate the principles of necessity and

proportionality of self defence

The Court in the Nicaragua case stated that there was a specific rule whereby self
defence would warrant only certain measures which are proportional to the armed attack and
necessary to respond to it, a rule well established in customary international law. In its 1996
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court
citing these words added that [t]he submission of the exercise of the right of self-defence
92 E.

Miller, Self-Defence, International Law, and the Six Day War, 20 Is.L.R. 49,5860
(1985).

93 Nicaragua para-105.

].

94 L.

B. Sohn, The International Court of Justice and the Scope of the Right of Self-Defense
and the Duty of Non-Intervention in International Law at a Time of Perplexity (Essays in
Honour of Shabtai Rosenne) 869, 878

Page | 1

to the conditions of necessity and proportionality is a rule of customary international law,

but [t]his dual condition applies equally to Article 51 of the Charter, whatever the means of
force employed.
It is contended that Fenia completely ignored the principles of necessity and
proportionality when threatening to and employing chemical weapons. Judge Agos Eighth
Report on State Responsibility to the International Law Commission, where he noted that the
concept of necessity centres upon the availability of other means, to halt the attack so that the
state attacked... must not, in the particular circumstances, have had any means of halting the
attack other than the recourse to armed attack.95 Fenia possessed other means of stopping the
rebel forces than resorting to chemical weapons and thereby its acts violate the principle of
necessity. According to Judge Ago, the correct relationship for proportionality was not
between the conduct constituting the armed attack and the opposing conduct constituting the
armed attack and the opposing conduct but rather between the action taken in self defence
and the purpose of halting and repelling the armed attack so that the action needed to halt
and repel the attack may well have to assume dimensions disproportionate to those of the
attack suffered.96 The supposed self defence means employed by Fenia in this case is the
threat and use of chemical weapons in order to halt the alleged armed attack by the rebel
forces, hence its acts are disproportionate.

95 Yearbook

of the International Law Commission, 1980, Vol II, part I, pg. 69

96 Id.
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PRAYER AND CONCLUSION

For the foregoing reasons the State of Murkey respectfully requests the Court to
adjudge and
i) DECLARE that the Kassad regime cannot represent Fenia before this Court as they
constitute an illegal authority of the State of Fenia.
ii) DECLARE that the Kassad regime is responsible for the violation of International
Humanitarian Law and International Human Rights Law.
iii) DECLARE that Murkeys intervention in Fenia is legal.
iv) DECLARE that Fenia has violated international law due to its use of Chemical
Weapons

---x---x--Signed by
Agents for the Respondent

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