Rola Trybunałów i Doktryny w Prawie Międzynarodowym

Rola Trybunałów i Doktryny w Prawie Międzynarodowym

Editorial staff:
Anita Garnuszek, Małgorzata Moch, Aleksandra Surma
Proofreading:
Anita Garnuszek, Małgorzata Moch, Aleksandra Surma
Comité pour le Concours Jean-Pictet & Anita Garnuszek, Małgorzata Moch,
Aleksandra Surma Warsaw, 2013
All of the competition materials belong to the Comité pour le Concours Jean-Pictet.
Authors of this publication has received an explicit authorization from the Comité pour le
Concours Jean-Pictet to use the materials.
All of the proposals on how to resolve competition cases and practical tips contained in the
parts entitled “team’s task” were prepared solely by the University of Warsaw team
Cover design:
Part of the painting of Charles Édouard Armand-Dumaresq „Signing of
the First Geneva Convention”
ISBN
978-83-63397-17-3
Publisher:
Faculty of Law and Administration of the University of Warsaw
Interdisciplinary Students’ Association „Diplomacy and Law”
This volume is published thanks to the support of:
Advisory Council for Students’ Academic Affairs of the University of Warsaw
The University of Warsaw Students’ Union
TABLE OF CONTENT
FOREWORD................................................................................................
5
INFORMACJE O KOLE NAUKOWYM
INFORMATION ABOUT THE ASSOCIATION..................................................
6
Part 1 ……………………………………………………………….....
8
Part 2 …………………………………………………………………..
13
Part 3 …………………………………………………………………..
18
Part 4 …………………………………………………………………..
22
Dear Readers,
This publication is an effect of the studies and preparation of Warsaw University
students - members of the Interdisciplinary Students’ Association of Diplomacy and Law,
who participated in Jean-Pictet International Humanitarian Law Moot Court Competition.
The Competition took place from 2nd to 9th March in Kanchanaburi, Thailand. The JeanPictet Competition is a week long training event on international humanitarian law (IHL)
intended for students. It consists in “taking law out of the books”, by simulations and role
plays, allowing the jury of the Competition to evaluate teams’ theoretical knowledge and
practical understanding of IHL [http://www.concourspictet.org/index_en.htm]. But above
all, the Jean – Pictet Competition is a wonderful experience which gives students a chance
to meet fantastic people from around the world.
During this unforgettable event, students were tried in several competition rounds.
The most important skills required in the Competition were: detailed knowledge of IHL
and International Public Law, teamwork, strategic skills, oratory skills, creativity,
precision in creating and expressing legal arguments and proficiency in English.
One of the most important reasons why we decided to prepare this guidebook is the
lack of open-access publications and manuals which would enable the students to
effectively prepare for the moot courts. International humanitarian law moot courts are
particularly specific and without the assistance of a coach or former participants, students
who decided to take part in such competition like Jean–Pictet might be quite surprised
with many aspects. Therefore, this publication aims at preparing participants for that
which is unexpected. The guidebook contains competition materials, which belong to the
Comité pour le Concours Jean-Pictet, proposals on how to resolve them and practical tips
prepared solely by the University of Warsaw team.
We believe that our guide will prove to be helpful for participants of the subsequent
editions of IHL moot courts and that thanks to it, they will be constantly improving and
achieving better results. After several international moot court competitions, we decided to
issue a series of publications, which will help younger colleagues to prepare themselves
for the moot courts adventure. This guidebook is a second publication of this series.
We wish you a pleasant reading and a good luck during your own competitions!
Anita Garnuszek
Małgorzata Moch
Aleksandra Surma
5
INFORMACJE O KOLE NAUKOWYM
Interdyscyplinarne Koło Naukowe Dyplomacji i Prawa
La Diplomatie et le Droit działa na Uniwersytecie
Warszawskim od 2006 roku. Powstało z inicjatywy
kilkunastu studentów zainteresowanych stykiem prawa oraz
polityki międzynarodowej.
Opiekunem naukowym Koła jest dr Aleksander Gubrynowicz, adiunkt w Instytucie
Prawa Międzynarodowego WPiA UW. Koło działa, organizując debaty, spotkania z
ekspertami (dyplomatami, dziennikarzami, urzędnikami, naukowcami), konferencje
naukowe oraz gry negocjacyjne. Głównymi projektami Koła są:

Model United Nations - studenckie symulacje obrad organów i agencji wyspecjalizowanych ONZ, prowadzone według procedur obowiązujących w prawdziwej Organizacji, odbywające się w języku angielskim. Studenci wcielają się na nich w rolę ambasadorów państw i debatują nad problemami polityki światowej. Członkowie Koła uczestniczyli
dotychczas w konferencjach m.in. w Oxfordzie, Hadze, Paryżu i Barcelonie. Efektem wyjazdów są publikacje naukowe uczestników, poświęcone problemom będącym przedmiotem obrad. Od 2009 roku Koło organizuje również symulacje Rady Bezpieczeństwa ONZ
na Uniwersytecie Warszawskim;

organizacja ogólnopolskich oraz międzynarodowych konferencji dla studentów i
doktorantów, zwieńczonych publikacjami najlepszych artykułów, opartych na wygłoszonych referatach. W pięciu dotychczas zorganizowanych konferencjach wzięło udział ponad 250 studentów z Polski i zagranicy.
Po szczegółowe informacje na temat bieżącej działalności zapraszamy na stronę
internetową Koła, Facebook’a oraz pod adres mailowy:
www.dip.mish.uw.edu.pl
[email protected]
6
INFORMATION ABOUT THE STUDENT SOCIETY
Interdisciplinary Student Association Diplomacy and
Law La Diplomatie et le Droit was established on
University of Warsaw in 2006 by several students interested
in connections between law and international politics.
Tutor of the Association is Aleksander Gubrynowicz, Ph.D. and academic lecturer
on Law of the Faculty of Law and Administration of University of Warsaw. Association
organises student’s debates, meetings with experts (diplomats, journalists, officials),
academic conferences and negotiation games. Main projects of the Association are:

Model United Nations (MUN) – students’ simulation of the sessions of organs and
specialised agencies of United Nations, run according to the rules of procedure identical
like in the real UN. Students become ambassadors of the member states of UN and debate
on the issues of global politics. So far, members of the Association participated in MUN
conferences in Oxford, The Hague, Barcelona and Paris. Effects of the research made for
the conference are contained in articles of participants, published in e-books on the Association website. Since 2009 Association organises Model Security Council on University
of Warsaw.

Academic conferences concerning import ant issues of law and international politics.
So far, over 250 students and Ph.D. students participated in five editions – two national
and three international – that took place. Each conference was followed by the book with
the articles of the participants.
For detailed information about present activities, please consult webpage, visit our
profile on Facebook or write an e-mail:
www.dip.mish.uw.edu.pl
[email protected]
7
Part 1
2 tests of 10 min active jury, to prepare: 1 h
Team role : you are the Head of the ICRC delegation in Cortigal and his/her colleagues
Competition materials
Dear Yvonne,
First of all, allow me to congratulate you on your nomination. I learned of it last week and
understand you assumed your new functions as recently as this past Friday, 1 st March. Your
nomination is well-deserved and I look forward to working with you in the days and months
ahead. I hope you will ménage to obtain permission for a field visit, so you will get a better
sense of the complex situation we are facing here in Cortigal.
I am afraid that recent events sort of “throw you into the hot water” right away. As a matter of
facts, we received the responses to the offers of services which we submitted both to the
government of Cortigal and to the leadership of the Doroli People’s Liberation Front (DPLF).
We sent our letters on 20 February 2013 and coincidentally received both replies today (see
both attachments - the reply from the Minister was expected: he gave me their line last night
when I met him at cocktail reception). Typically, they both request that we meet them right
now i.e. a few hours from now. I will report to you afterwards on how these meetings went.
Fingers crossed…
In order to allow you to get up to speed on this complex file, I have summarized some of the
main factors and events:
Since the armed conflict between the armed forces of Cortigal and the DPLF intensified in
December 2012, it is estimated that 25,000 Doroli from the province of Huglidugli have had
to leave all their belongings behind and to flee their homes. Given the areas where the forces
of both sides are stationed and where the military engagements take place, some of them have
had no choice but to flee towards the province of Roedoelia. This province is, for the time
being at least, still fully under the control of government forces.
Ever since they arrived in Roedoelia this December, the Doroli from Huglidugli have met
with a lot of hostility and resentment from the local population. The reasons for this are not
hard to understand and can be traced back to grievances of a historical nature.
For the past few decades, due to the combined presence of large steel factories and oil
refineries, Huglidugli has been one of the country’s most affluent provinces. Over the last
several years, this affluence has increased even more thanks to the discovery of significant
reserves of shale – gas.
8
Roedoelia, by contrast, has remained poor and in decline ever since its coalmines were closed
in the late 1970s. Despite some attempts by provincial administration to reinvent the province
in terms of its economic infrastructure and despite the generous subsidies showered on the
province by the central government, not much has changed. As a result, many inhabitants of
Roedoelia have had little economic opportunity other than going to find work in Huglidugli.
Here, work conditions are said to be harsh and the Huglidugli supervisors at the work sites
have a reputation for being brutal when it comes to the treatment they dole out to the laborers
from Roedoelia.
As a result of these historic grievances, the population of Roedoelia is now little inclined to be
helpful towards Doroli from Huglidugli. They are willing to sell food and other necessities to
the Doroli, but do so at triple the regular price. Tensions have been mounting. Shortages of
food and medicine could be observed in the last week, electricity cuts have become more and
more regular and the already sparse supply of drinkable water is quickly disappearing. It is
clear that the humanitarian needs are increasing at a staggering rate. Our delegation is
attempting to map these humanitarian needs as reliably as possible, though the lack of access
to some areas clearly complicates their task.
As you know, the ICRC has been present in Cortigal since 1962. In addition to our delegation
in the capital, we have three offices, all in provinces which remain (despite regular and fierce
clashes over the last few weeks) mostly controlled by the government. These offices are in
Driew (the capital of the province of Roedoelia), Errrazib (the capital of the province of
Begonia) and in Lamron ( the capital of the province of Magnolia). Both Begonia and
Magnolia border the region that remains, so far at least, firmly in control of the DPLF. Both
regions are very volatile and have a sizeable population of people of Doroli ethnicity. This
mix leads to a combustible area over which he armed forces prefer to keep a very firm hand.
Though we suspect that the State’s security services keep a very close eye on all our activities,
we generally enjoy good relations with the government.
For some time in the past we used to have access to the territory controlled by the DPLF.
Following a generational change in leadership within DPLF some ten years ago, these new
leaders unilaterally decided to terminate all contacts with the ICRC. The result remains that,
for the last ten years, the ICRC has not been able to undertake any activity in the territory
under the control of the DPLF.
The relationship between the ICRC and the National Red Cross Society has been fragile. This
Society has been presided over, for the last thirty years, by Madame Ignuf, who is the wife of
the President of Cortigal (!) As a result of her lack of vision and leadership, the National
Society has gradually slid into a state of stagnation. The sole form of cooperation which the
ICRC has managed to foster with the National Society is in the field of dissemination of IHL,
9
though only universities benefit from this. No further operational cooperation exists. Despite
some informal attempts (both by the ICRC and by the International Federation of Red Cross
and Red Crescent Societies) to ameliorate it, the fact of the matter remains that the National
Society has not a single staff member of Doroli ethnicity.
As previously mentioned, on 20 February 2013, we submitted written offers of services,
requesting access, both to the government (with whom open channels of communication
exist) and to the DPLF (the latter was reached thanks to the hard work of our delegates). As
per the agreement with your predecessor, the offers of services only relate to assistance
activities (food, medicine, water, etc), since we all agreed that the fruit is not yet ripe to
initiate a dialogue on protection issues.
That’s all for now. I’ve got to run now to prepare for our meeting with DPLF (you’ll find
attached the letter from E. Lissim, which will serve as the basis of our discussion). I’ll meet
later with Minister Potophew (his letter is also attached).
Talk soon,
Pierre
Letter from DPLF leadership
To the guys from Geneva,
Letter received. We do not know why you (from rich Switzerland) would have any right to do
what you propose to do. How do we know we can trust you? How come your staff keeps
going to the cocktail receptions organized by our enemy?
Despite our skepticism and to show our good will, however, we are ready to meet with you. In
any event, we want you to know in advance that:
You can only give assistance to people of Doroli ethnicity. They and only they truly
need it
Our troops are hungry. 20 % of your food supplies have to go to them.
You cannot use this red cross you keep walking around with. We hate what it represents.
No vaccination programs. We know these are used by spy agencies with which we
suspect you cooperate, to gather DNA information about our people.
Our people need education to become better at combating the enemy. You need to
open five schools, where the leaders of our sacred religion (which we must defend
against the tyrans from the Cortigali government) will teach in the morning and your
people may use it in the afternoon.
10
Please come and see us today so we can see whether we can trust you.
E. Lissim
Sacred Commander of the DPLF
Team’s task
If you became acquainted with the first part of our guide, you probably realized that this
task is quite similar to that one we faced during Regional Moot Court in International
Humanitarian Law in Sarajevo. In this kind of exercise, your acting skills are highly valuable.
For many students this is also one of the most difficult tasks to deal with. You should
absolutely forget, for that moment, that you are a law student participating in an international
humanitarian law competition, but to feel and act as an ICRC delegate going for a meeting
with rebel leaders, which will be probably held somewhere in the jungle. It is highly probable
that your interlocutors will be armed and, you as an ICRC delegates, are of course not.
What you should expect
Do not expect nice room with an air condition and polite DPLF representatives. First of
all, wait for an invitation to go inside. It is possible that they will scan you for security
reasons. Then, you may realize that your table is quite far away from your interlocutors. Try
to ask them for a permission to shorten the distance and to seat in front of DPLF leaders. You
can mention that that would facilitate the conversation. The attitude of your interlocutors will
be rather disrespectful and even a little bit aggressive. You can expect their legs lying on the
table, interruptions, strange comments etc., but that should not discourage you.
What you should achieve
Remember, you have only ten minutes to achieve your goals. And what are they, actually?
First of all, you are there in order to obtain DPLF leaders’ trust. They will start to ask
you questions about your nationality and why ‘guys from Geneva’ may be so interested in
their situation. Furthermore, they can ask you for some gifts, at least for a bar of a famous
chocolate. You are a Head of the ICRC Delegation in Cortigal and it does not necessarily
mean that you are from Switzerland. You can come up with any nationality you want, most
preferably a neutral one. Then it would be appreciated to explain literally and in a few words
the connection between the ICRC and Switzerland. Furthermore, you may be asked about a
cocktail reception organized by the government. For DPLF leaders, your participation in that
cocktail means that you are friends with their enemies and such a situation is highly
unacceptable. Therefore, try to explain that you are impartial and neutral and your goal is to
protect lives and dignity and to provide assistance to vulnerable people. If they ask you to
11
make joint picture to be printed next day in a local newspaper, you should remember that one
of your principles is confidentiality, therefore it is better to kindly refuse to thatproposal.
Subsequently, you should address all the issues listed in an e-mail and try to mention
and explain the ICRC rules of engagement. These are: humanity, impartiality, neutrality,
universality, independence, voluntary service and unity. If you will not be able to describe all
of the principles, do not worry. Remember that this is not place to show off how perfectly
legally prepared you are. If you start to mention some international law cases, it can only
irritate your interlocutors.
It is good to say that due to the impartiality and universality rules you cannot give the
assistance only to Doroli people. You are obliged by that rules and you have to act in
accordance with them. Being impartial means that you do not distinguish between Doroli
people and Cortigal nationals. For you, all of those people need help and ethnicity does not
matter in this regard. It is worth to point out that you will not help Cortigal government but
only people who are victims of the conflict.
Furthermore, you should address the issue of neutrality and explain why you cannot
engage in a conflict and that if you gave 20 per cent of your supplies to DPLF troops that
would mean a violation of neutrality rule. You can add that what makes you reliable is
compliance with the fundamental rules of IHL. They are unchangeable and DPLF leaders may
be sure that you will not start to behave in a different way. But it means also that you cannot
bend the rules for rebels’ purposes.
Many delegations came to the room of DPLF leaders dressed as ICRC delegates with a
red cross on their chest. It is usually a very good idea. However, when your received a letter
from DPLF, in which they strongly indicated that they hate all that what the Red Cross
emblem represents, it is rather advised not to wear it, unless you want to irritate your
interlocutors. When they start conversation about Red Cross emblem, explain in a few words
that it is not connected with any religion, but it rather resembles Swiss flag, paying the tribute
to the country as a host of the First Geneva Conference. Furthermore, underline that there is a
possibility to use red crystal which is absolutely a neutral emblem.
When it regards the vaccination programs, it is good to strongly deny the charges that
you cooperate with spy agencies. Mention that the ICRC is absolutely independent in their
actions and has no interest in gathering the DNA. The only thing which governs your action is
the principle of humanity and you would like to introduce vaccination program in order to
help all of the people affected by the conflict.
Remember not to engage in any political or religious discussions. Of course, you cannot
support the education in order to better combat enemies, however we believe that it is always
12
better to build schools for children and at least educate them in the afternoon than totally
deprive them of the access to education. Something is always better than nothing, and you as
the ICRC delegates should be very good negotiators, as well. It means that in order to reach a
compromise, sometimes you have to be able to resign from something else.
Part 2
Test of 20 minutes, group of 2 teams, non-active jury.
Team role: Lt. Col. Ba Khar Dy and Co – military authorities of the Camp Ound.
Other team: Lt. Col. Juley M. Argauh and Co. – prisoners’ representative
Competition materials
Barakistani Armed Forces
Detainee’s communication / Authorities’ response X
Date: March 4th, 2013
Detainee operations
Communications slip with individuals held at Camp Ound
Lt. Col. Juley M. Argauh,
We received your communication dated 04/03/2013.
Entirely conscious of our obligations under the Third Geneva Convention, we propose a
meeting to discuss the list of issues annexed to your communication. You may be assisted by
two co-detainees. The meeting will take place in Lt. Col. Ba Khar Dy’s office. I will be there
myself as well as Capt. Sweem Incpulh.
I trust this will suit you.
Cap. Sambo Huka
Barakistani Armed Forces
Detainee’s communication X/ Authorities response
Detainee operations
Date: 04.03.2013
Communication slip with individuals held at Camp Ound
Captain Sambo Huka,
13
Thank you for your prompt reaction to our letter.
I confirm that I am prepared to meet you to discuss this list of issues and that I will be
accompanied by Sergent Pep Herr and Private Coh Kbanhg.
Lt. Col. Juley M. Argaugh.
Prisoners’ Representative
March 4, 2013
To the military authorities,
On 3rd March 2013, 15 members of the 2nd Battalion and 3 members of the Special Forces of
the Armed Forces of Arbaland were arrested by the Barakistani Armed Forces as well as 19
associated members of the FUZ.
5 civilians were also arrested during the same operation that took place in Barakistan.
I have been elected as the prisoners’ representative.
1. We would like to stress that, contrary to your assertions, the 5 civilians arrested are not
terrorist or persons having collaborated with a terrorist organization, but individuals
(including 2 minors, aged 15 and 16) which are merely family members of FUZ members. As they have nothing to do with the conflict, they should be released.
2. Your claim that the 3 members of the Arbalandian Special Forces Unit (numbers
12.05.78, 66.77.01 and 55.00.98) are spies- based on the fact that they were not wearing official military uniforms or any distinctive sign upon capture – is unfounded.
They should be granted POW status.
3. The detained members of the Special Forces Unit referred to above and associated
FUZ members should not be interned separately, but rather grouped with the other detained members of the Arbalandian Armed Forces.
4. Detainees are unhappy about the fact smoking is permitted everywhere in the prison,
including in the cells. Non- smoking prisoners are annoyed by the smoke and odour,
and some even report difficulty breathing.
5. Since the prisoners arrived at the camp, they have been served only 2 meals which is
insufficient.
6. The prisoners have no means to communicate with their families. They have been told
that the Barakistani military authorities in charge of the camp would record messages
they might have for their families and transmit these to the Government of Arbaland.
This proposal is unacceptable, as every prisoner should be allowed to communicate
with his or her family directly. Furthermore, the family of B. Laco Fy (number
14
108.95) is currently on a cruise around the world and unable to access their post. The
only way of communicating with them is by email.
7. No doctor or medical personnel has examined the prisoners to date. 4 prisoners were
wounded during the battle preceding their detention. 3 suffer minor wounds, although
these show signs of infection (numbers 709.45, 857.33 and 845.23). 1 (number
12.05.78)has an open wound on his left leg , is bleeding profusely and has lost consciousness a total of 4 times. Furthermore, one prisoner (an associated FUZ member)
suffers from diabetes and needs to get shots of insulin twice a day. His cigarette addiction worsen his health condition and he would like to quit smoking. He should be given nicotine patches.
8. Corporal Vyin Sho (number 405.77) would like to have access to a private cell for
himself, his wife (number 321.56) and their son (number 222.00).
9. Soldier Djakda Nyel’s (number 654.22) amulet – a sand leopard paw – has been confiscated. It should be immediately returned to him.
10. The detention facilities are unacceptable for prisoners of war: the cells are infested
with bedbugs, the camp does not exclusively house prisoners of war- we have to mingle with Barakistani burglars and prostitutes during meals, there is no computer, no
access to the Internet, and no meeting room (not even for the prisoners’ representative
to work in); there is no library, no television and no-video-games.
11. In order to ensure the prisoners’ representative may work properly, he must be provided with an Arbalandian copy of the Geneva Conventions as well as an updated version
of the commentaries to these Conventions.
Lt. Col. Juley M. Argauh,
Legal Advisor to the Armed Forces of Arbaland
Team’s task
The test number 3 was the only test during the whole competition where the teams
played against each other and the jury was not taking an active part in the test. The round was
between two teams - detainees and the detaining power. In response to the letter of prisoners’
representative, the military authorities of the camp invited the prisoners’ representative with
two co-detainees for the meeting which was held in the office of Lt. Col. Ba Khar Dy. The
main goal of this task was to negotiate the conditions of prisoners in the camp and to direct
attention of the camp authorities on specific violations of the Third Geneva Convention which
took place in the camp. It is clearly visible that the team playing the role of the military
authorities (in this round it was our team) had slightly less absorbing task as he were required
mainly to respond on the allegations, and the team acting as POWs had to present all the
15
violations and to point out what is supposed to be changed in order to follow according to the
provisions of the Third Geneva Convention.
This task shown how important during role-play competition is to be ‘in the role’. The
teams were prepared and dressed up as soldiers, pretending to be wounded and in pain, etc. It
is important to be in the role even without specific disguise – try to act like a prisoner or
powerful military authority.
The military authorities agreed on meeting with prisoners’ representative to talk about
the issues raised in the letter, but it did not mean that they could agree on all the issues. It
depends on the participant could be agree on, but the main goal was to refute arguments and
find compromise.
As for the legal argumentation during the round, the first issue raised pertained captured
individuals (including minors). The principle of distinction should have been applied in this
case as they claimed to be family members of FUZ- (we always should presume the civilian
status), and also minors shall be granted special protection during the conflict and definitely
should not be captured and held as prisoners.
The second issue concerned doubtful status of POWs – the prisoners’ representative
asked for the POW status for the alleged spies. According to Articles 4 and 5 of the Third
Geneva Convention and also the Article 45 of the I Protocol Additional – they should not be
granted POW status- the fact that they were not wearing official military uniforms or any
distinctive sings could be the factor that would in no way influence military authorities to find
out a compromise at this point.
The next two issues concerned the matter of the conditions of the placement. All the
combatants from a captured group should be grouped as it refers to the equality of treatment
(Article 16 and 22 of the Third Geneva Convention). The condition of premises cannot
influence the health of captured prisoners. Prisoners of war shall be located in the premises
which do not affect their health and general condition – smoking areas should be separated
from the cells where non-smoking prisoners are located (Article 22 and 25 of the Third
Geneva Convention).
As for the question about the daily meals – the negotiable matter was related to the
sufficiency of the meals. The prisoners have been in the camp for only one day and half (they
arrived on 3rd of March and the meeting took place on 4th of March) and they were served
with 2 meals. The detaining power should compromise on that issue as the Article 26 of Third
Geneva Convention stated that: The basic food rations shall be sufficient in quantity quality
and variety to keep prisoners of war in good health and to prevent loss of weight or the
development of nutritional deficiencies.
16
The correspondence between prisoners and their families shall be conveyed by the most
prompt method. The proposal to record the messages seems to have the features of the
censorship. The transmit through the government does not seem to be the fastest way.
Therefore, in that issue military authorities could find another way to compromise with the
prisoners (for instance: agree on usual mail).
The medical inspections of prisoners of war shall be held at least once a month (Article
31 of the Third Geneva Convention). However, in this case, when the prisoners captured
during combats are having open wounds or urgently need access to their indispensable
medications, the immediate medical inspection seem to be compulsory.
The access to a private cell shall be granted with regard to the rank and the age of the
prisoner (Article 44 of the Third Geneva Convention). The question about the private cell for
Corporal and his wife and son may be answered positively if the conditions in the camp allow
for it. The following issue refers to the private property of prisoners. According to the Article
18 of the III Geneva Convention: Badges of rank and nationality, decorations and articles
having above all a personal or sentimental value may not be taken from prisoners of war. The
amulet of sand leopard paw should be therefore returned to the prisoner.
The two last issues have a few points that team plays the role of the military authorities
could consider and way a way of a compromise with– those were: the prison cells infested
with bedbugs, the access to library or computers, the access to the Geneva Conventions in
prisoners’ national language.
In spite of the less active role of our team we used to play, one should not have the
impression that it was less demanding task. The opposite team was trying to ‘extend’ the rules
into its side. It is important to be prepared for specific legal details that the opposite team
could try to use against and what do not necessarily have to be according to the law or merely
true.
In the result of the round, we managed to conclude a few compromises as the discussion
has very passionate and sometimes took the aggressive course, because both teams tried to
win the negotiations. It is important to know the role and to be prepared for the part you can
compromise on and the part you definitely cannot. Each party to the negotiations should be a
bit satisfied and also a bit disappointed of not achieving all the goals– that is the true sense of
the compromise.
17
Part 3
1. Interviews of legal advisers from the association Rights are Rights! with:
a) Mr Chôothe Mall, Chief of the Cortigal Police,
b) Dr Singh Abhiirr, who apparently treated some of the persons wounded during the
protest and Hilfoul Amerd, the organizer of the protest, himself wounded during
the protest and who is at the hospital Lettanphil.
2. Meeting with Esculpa Demylianot, Seniorl Legal Advisor of the association Rights are
Rights!, in order to present the information obtained during two interviews.
Team role: Legal advisers of the association Rights are Rights!
Duration and format of the test: two bilaterals of 8 minutes, followed by bilateral of 15
minutes.
Competition materials
From: Esculpa Demylianot
To: All staff
Date: 6 March 2013 11:04
Subject: Demonstration Against Drone Strikes
Dear all,
Did you hear about the protest this morning? (See below)
We need to investigate and issue a report as quickly as possible. Given the increasing intensity of the conflict, it would probably be good to be able to provide a preliminary assessment of
the drone strikes themselves as well. I have managed to contact a few people and set up interviews with Mr Chôothe Mall, Chief of the Cortigal Police, Dr Singh Abhiirr, who apparently
treated some of the persons wounded during the protest and Hilfoul Amerd, the organizer of
the protest, himself wounded during the protest and who is at the hospital Lettanphil.
I will be away in other meetings this afternoon - when I get back, we can meet and you will
give me your legal analysis of these events. Even though emotions are running days, I expect
your work to remain in keeping with the objective and reliable voice that 'Rights are Rights!'
has become known and respected for.
Esculpa
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Breaking News - Breaking News - Breaking News - Breaking News - Breaking News
6 March 2013, Updated 9:23 am
Police have used tear gas to suppress hundreds of peaceful demonstrators in Ruj marching
with 'Down with Drones' early this morning. Witnesses say at least two demonstrators have
been killed and dozens of other injured in the melee. Placards bearing the 'Down with Drones’
logo littered the streets minutes after Cortigali riot police swarmed the area.
MORE TO COME …
Team’s task
The objective of the three rounds (two lasting 8 minutes each and one lasting 15
minutes) was to obtain as much information as possible in order to prepare on behalf of the
non-governmental association Rights are Rights! the most objective and reliable report in
regards to the occurrences, which have taken place in the morning. Main goal of the team
members, acting as legal advisors, was to use time the most efficiently and to ask as many
relevant questions as it would be possible. Furthermore, on the basis of the collected data,
teams were supposed to prepare legal analysis of the events.
This round seemed to involve, in particular, negotiating skills, together with the ability
to lead the conversation with different types of interlocutors, what – as it was highlighted by
the jury afterwards – is indispensable during the ICRC’s activities.
What needs to be emphasized, is that results of the interviews demanded the
interpretation as they remained mostly in contradiction with each other, i. e. interlocutors
indicated different number of the casualties or provided details on the police actions in a
different way, what led to the doubts, whether those officials were ensuring the security of the
demonstrating people or they were rather directly responsible for such a thrilling number of
the casualties.
First interview was conducted with doctor Singh Abhiirr, who apparently treated some
people, who were wounded during the protest and Hilfoul Amerd, the organizer of the protest,
himself injured during the occurrences. Their account, very detailed and emotional, contained
various important information indispensable for legal advisors to draw the conclusions. They
were reporting the occurrences that took place during the strike, described the types of the
weapon used by the police and the way people were gathered in the closed fenced area. What
is more, they also remarked on another two nearby demonstrations that took place at the same
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time, that were not in any way controlled by the police. That could lead to the conclusion that
– because of the ethnic and political grounds – there were reasons for the police to
discriminate demonstrators from that particular strike.
What is more, a doctor from the hospital described the condition of patients, saying that
their symptoms were unusual for the ordinary weapon used by the police (they reported to use
only tear gas), although by the time the medical research in the laboratory is not completed,
she was not able to unanimously state that the substance used were different in the chemical
content from the tear gas.
Second interview with Mr Chôothe Mall, Chief of the Cortigal Police, was also aimed at
obtaining the highest number of relevant information in that short period of time. The officer,
although kind to legal advisors, was reluctant to respond all the questions in the detailed way.
He remarked that Hilfoul Amerd, the organizer of the protest, did not obtain the permission
for the organization of the event, what made the reaction of the police justified. He also
denied his subordinates to use any weapon other than the tear gas, contrary to the organizer
and the doctor who said that there was also sharp ammunition used during the occurrences.
Third meeting with Esculpa Demylianot, Senior Legal Advisor of the association Rights
are Rights! was organized to provide her the information for the report, to present concluding
remarks drawn from two meetings and to discuss possible solutions to the problem.
It is vital to note that the preliminary report was submitted by team to Esculpa, in order
to better describe all the concerns of legal advisors and to propose the best way to cover
relevant information in the prospective report of the Rights are Rights! association.
The opinion of the legal advisors was that, in spite of the fact that many information
seemed to be contradictory in terms, there were without any doubts some violations for which
both sides were responsible.
As it was confirmed in the course of both interviews, in order to organize the
demonstration, prior permission was required and in the case at hand, it was not obtained.
Such permission was demanded by Cortigal national law. In this case, the police had a right to
not allow for the conduct of the demonstration.
The right to assembly and to conduct peaceful demonstration is guaranteed by the
International Covenant on Civil and Political Rights from 1966 (ICCPR)1. According to the
meaning of its Article 21:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are neces1
Text of the Covenant, http://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668English.pdf, retrieved 19.04.2013.
20
sary in a democratic society in the interests of national security or public safety, public order
(ordre public), the protection of public health or morals or the protection of the rights and
freedoms of others.
In Cortigal situation, the obligation to obtain the permission was imposed by national
law and therefore should be obeyed by the organizers. However, even in a case of the illegal
demonstration, the methods used by the police should be proportionate and nothing justifies
the use of the means that may be regarded as too violent or excessive for the maintenance of
peace. As the information obtained by the advisors was not complete, it did not allow for
unanimous assessment of the actions of both demonstrators and police officers. Therefore,
further examination would be required in that case.
Nevertheless, if it was proved that the methods were too cruel and the type of weapon
used prohibited, in case of reliable evidence that the persecution of the people taking part in
the protests was based on ethnic or political grounds, such actions could be even qualified as a
crime against humanity, regulated by the Rome Statute of the International Criminal Court2 to
which Cortigal is a State Party. Although such interpretation is very far-reaching, it cannot be
excluded.
As for the issue of the drone strikes, which were to be examined in the report, the police
officer was reluctant to comment on the matter. However, both the organizer of the strike and
the doctor had confirmed that 40 such attacks on civilians had been conducted for past two
weeks, resulting in 247 casualties. Those attacks were said to be carried out by local authorities.
Drones are unmanned aerial vehicles whose purposes range from surveillance to targeted killings. In this case, they were aimed to directly affect civilian population. As for the legality of the drones in general, there is no particular international convention on the matter,
therefore that issue remains not regulated on international level.
Notwithstanding, it is without any doubt that any attacks that are disproportionate and
inhumane are contrary to the rules of warfare and to international humanitarian law. Here, the
attacks could be (but we do not have sufficient evidence on that) directed against members of
one ethnic group (the Doroli people), although civilian losses are of the enormous amount and
include not only representatives of that group. Even if we assume that we do have the state of
an armed conflict (either international or non-international one), any attacks have to be proportionate and observing the principles of humanity and distinction between combatants and
civilians. Those attacks have to provide a definite military advantage. Here, those conditions
were not fulfilled. Therefore, if the examination of the drone attack proves the opinions of two
2
Text of the Statute: http://untreaty.un.org/cod/icc/statute/romefra.htm, retrieved 19.04.2013
21
interviewees to have been reliable, the attacks have to be classified as a violation of rudimentary principles of international humanitarian law and therefore illegal.
Part 4
time to prepare : 1 h
team role: assistant to the Special Rapporteur
Competition materials
Dear assistants,
I have just learned of the alarming events in the Zorba Island region through the blog post by
Keepen Joyn. See attached.
I am extremely concerned. I plan to send an invitation request to the governments of the three
countries in the region, in order to be able to conduct an urgent Special Mission there.
Before doing so, I would like you to provide me a comprehensive legal overview of the
following points:
1. I would like to be clear about how international humanitarian law handles the persons
at sea who were not rescued by the Barakistani military. I would also like to be clear
about what consequences there are, under this body of law, for this army’s behavior;
2. I would like you to remind me what rules of international refugee law are applicable to
the Barakistani Doroli to whom Utanura (a State in the region of Nidranea, located to
the South West of Barakistan and to the West of Cortigal) has denied access to its territory; and subsidiary
3. I would like you to give me the state of play concerning the situation in Camp Rhiyen
Aphoutr, which was established in Arbaland to host the Barakistani Doroli. This
should include the issue concerning FUZ members who are found here.
I count on your habitual accuracy.
Best wishes,
Wuidhontgui United Nations Special Rapporteur on the situation of human rights in the
region of the Zorba Islands
OHCHR
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www.investigativejournalismfromzorba.org
A source of reliable information for diplomats.
We analyze. You push the issues forward
Geneva and New York
The conflict that has been raging in the region of Zorba Islands for years, far from dying out,
is still intensifying, resulting in more and more victims. The situation is particularly critical
and many Doroli are attempting to flee their respective countries, where they are now
ostracized and victims of violence on a daily basis. This is a setback for the Doroli people and
demonstrates just how Albert Artoso, himself Droli, was crucial to their cause in the region.
His allegiances and political intentions, although never clearly spelled out, did not escape our
journalists.
For several days already, hundreds of Barakistani of Doroli origin have fled for Arbaland.
Many of them have crossed into Arbaland over land. They have received a warm welcome
and the Arbalandian government has created camp Rhiyen Aphoutr close to the border to
accommodate them. Barakistani authorities claim that Camp Rhiyen Aphoutr is actually a
base for the FUZ. In fact, Ms. Ohnssenka Lys, a doctor working at the camp, confirmed to us
that thirty FUZ members are also present at the camp. Rhiyen Aphoutr hosts about 500
people. Other Dorolis from Barakistan are fleeing over the sea towards Arbaland. Due to
strong oceanic currents in the region, many of their makeshift boats have been swept towards
the continent, landing on the shores of Utanura. This country, fearing that the conflict
ravaging the Zorba Islands may spread to its territory, is refusing them the right to enter its
territory and making them turn back out to sea.
The many Arbalandian migrant workers that moved to work in the Barakistani tourism
industry close to the natural reserve of the Xeh Bay have begun to flee as well and are
attempting to return to their home country. Some do it over the sea and are also exposed to the
dangers of the strong ocean currents in the area. Mr. Yan Namhar, captain of the
Gecharkledaanltexcthabbhrunault, transporting a cargo of bananas and infant milk formula,
told the media yesterday that he had witnessed a horrible scene: at about 6:30 am, he saw a
fishing boat with about 23 people on board, including three persons wearing FUZ uniforms
and 2 others wearing uniforms of the Arbalandian Armed Forces. The boat clearly held too
many passengers for its weak structure. A vessel from the Barakistani Navy was in the area.
The 3 persons wearing FUZ uniforms and the 2 wearing the Arbalandian military servicemen
attempted to fire in direction of the Barakistani naval vessel. The boat was rocking violently
and it eventually capsized. After a few minutes a dozen bodies were already seen floating on
the surface of the waves. 8 passengers, including 2 children and a person wearing the FUZ
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uniform sent distress signals in the direction of the Barakistani ship, but they received no
response. The two Arbalandian servicemen managed t ignite an emergency flare. According to
Mr. Yan Namhar, it is not possible that the Barakistani military did not see the persons in
distress. He believes they deliberately chose not to rescue them.
The situation in Cortigal also seems to be getting more and more critical and some Dorolis
have started to flee the island.
Do you have additional information on this topic> Contact our correspondent by e-mail:
[email protected]
Any information received will be treated as strictly confidential.
Team’s task
In this task you are assistants to the Special Rapporteur responsible for legal analysis of
the situation. Therefore, you should be concrete and ready to answer specific questions
regarding legal aspects of the occurrences.
As always, start your speech with the qualification of the conflict. Remember that there
are basically two possibilities. You can either qualify conflict as international or noninternational one. In this case, it is possible to qualify conflict as an international one due to
the “overall control” doctrine established in Tadic case. International Criminal Tribunal for
the Former Yugoslavia decided that “overall control” by the state over the group was
sufficient to establish that the conflict has an international character. Such “overall control”
resided not only in equipping, financing or training and providing operational support to the
group, but also in coordinating or helping in the general planning of its military or
paramilitary activity (Tadic, paras. 131, 137). Having in mind previous statement of facts, it
can be argued that Arbaland exercises “overall control” over FUZ. In result, there is a
situation of an international armed conflict between Barakistan and FUZ supported by
Arbaland. Therefore, four Geneva Conventions and Additional Protocol I are applicable.
The first issue refers to the situation of the shipwrecked. As we know, a boat with about
23 people on board, including three persons wearing FUZ uniforms and 2 others wearing
uniforms of the Arbalandian Armed Forces, were drifting in the sea. After the incident with
Barakistani Navy, the boat capsized and Barakistani Navy did not respond to their request for
help and left all of the people behind at sea. According to the art. 8 of the First Additional
Protocol (AP I), "shipwrecked" means persons, whether military or civilian, who are in peril
at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft
carrying them and who refrain from any act of hostility. These persons, provided that they
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continue to refrain from any act of hostility, shall continue to be considered shipwrecked
during their rescue until they acquire another status under the Conventions or this Protocol.
In the case at hand, all of the left people should be treated as shipwrecked. Furthermore, art.
18 of the Third Geneva Convention (GC III) says that: After each engagement, Parties to the
conflict shall, without delay, take all possible measures to search for and collect the
shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure
their adequate care, and to search for the dead and prevent their being despoiled. That means
that Barakistan did not comply with its obligations deriving from GC III. Moreover, with
regard to art. 51 of the GC III, such a behavior constitutes grave breach of international
humanitarian law. Definitely, leaving shipwrecked at the sea may be qualified as inhumane
treatment. In response to the question posed by Special Rapporteur, it may be argued that the
actions of Barakistani Navy should be qualified as a war crime.
Secondly, the situation of the Doroli, the access to whom was denied by Utanura, should
be addressed as well. At the very beginning, it should be noted that the right to decide who
may enter country’s territory and who cannot do it is an inherent right of each country’s
sovereignty. According to the 2000 recommendation of the ILC Working-Group on the longterm programme of work prepared by International Law Commission there has never been
doubt concerning countries’ right to expel aliens from their territory. Accordingly, if a state
may expel someone from its territory, it can also deny him or her an access to it. Shigeru Oda
presented a common view that the right of a State to expel aliens whose presence is regarded
as undesirable, is like the right to refuse admission. This is a situation especially when the
country is fearing of its own safety. There is no such international obligation that would
require the state to welcome all the foreigners. Utanura was fearing that the conflict ravaging
the Zorba Islands may spread into its territory, therefore its refusal of the access could be
regarded as justified. On the other hand, the principle of humanity should be applied at all
times and it can be said that making those people turn back out to sea was inhumane.
Principle of non- refoulment, as described in art.33 of the 1951 Refugee Convention, cannot
be applied in the case at hand because, to be specific, those people have never been granted
the access to Utanura territory, therefore they cannot be expelled or returned.
Thirdly, there is a question whether Doroli hosted in Camp Rhiyen Aphoutr should be
perceived as the refugees and how to address the problem of FUZ members among the
civilians. According to the art. 1(A)2 of the 1951 Refugee Convention, the term “refugee”
shall apply to any person who (...) owing to well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group 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
25
such fear, is unwilling to return to it. With no doubts, Doroli people who have fled to
Arbaland can be perceived as the refugees and Camp Rhiyen Aphoutr is a refugee camp.
When it regards to the presence of FUZ members in that camp, the principle of distinction
should be taken into account. According to rule 7 of the customary international humanitarian
law rules, the parties to the conflict must at all times distinguish between civilian objects and
military objectives. That means that FUZ superiors and Arbaland are obliged not to host
civilians and members of the military forces at the same place. Otherwise, civilians are in a
danger of a possible attack. In general, civilian objects should not be attacked (art. 52 AP I).
However, if it was established that, for example, a refugee camp by its use make an effective
contribution to military action, it would lose the protection. Nevertheless, potential military
action should be proportional what means that an attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated, is prohibited (rule 14). In addition, all of the precautionary measures enlisted in
art. 57 of the AP I should be undertaken. In conclusion, FUZ members should not be present
in the refugee camp, because this constitutes violation of principle of distinction and their
presence endangers the civilians who are also hosted there.
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