applicant pn bhawati moot

NEW LAW COLLEGE, BHARATI VIDYAPEETH DEEMED UNIVERSITY,JUSTICE P.N. BHAGWATI 2ND INTERNATIONAL MOOT COURT COMPETITION ON

HUMAN RIGHTS, 2012

___________________________________________________________________________

IN THEINTERNATIONAL COURT OF JUSTICE

AT THEPEACE PALACE, THE HAGUE, NETHERLANDS

THE CASE CONCERNING THE ILLEGAL DEPLOYMENT OF ARMED FORCES AND VIOLATION OF HUMAN RIGHTS

STATE OF KHOMELIA

(APPLICANT)

V.

STATE OF DIKOUTI

(RESPONDENT)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

-MEMORANDUM ON BEHALF OF APPLICANT-

Team Code -

JJUSTICEUSTICE P.N. B P.N. BHAGWATIHAGWATI 2 2NDND I INTERNATIONALNTERNATIONAL M MOOTOOT C COURTOURT C COMPETITIONOMPETITION ONON H HUMANUMAN R RIGHTSIGHTS,, 20122012

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT


TABLE OF CONTENTS

INDEX OF AUTHORITIES.........................................................................................................I

STATEMENT OF JURISDICTION...........................................................................................V

STATEMENT OF FACTS.........................................................................................................VI

LEGAL ISSUES.......................................................................................................................VIII

SUMMARY OF THE SUBMISSIONS.....................................................................................IX

SUBMISSIONS..............................................................................................................................1

1. DIKOUTI HAD VIOLATED THE PRINCIPLE OF NON-INTERFERENCE OF HIGH VALUE IN

INTERNATIONAL LAW..................................................................................................................1

1.1 BREACHES OF UN RECOGNIZED PRINCIPLES COMMITTED BY THE STATE OF DIKOUTI..1

1.2 BREACHES OF OTHER CUSTOMARY PRINCIPLES OF INTERNATIONAL LAW......................3

1.3 INTERNATIONAL COURT OF JUSTICE HAS DENOUNCED RIGHT TO INTERVENTION.........4

2 DEPLOYMENT OF ARMED FORCES VIOLATES THE TREATY ENTERED INTO BY BOTH

THE STATES...................................................................................................................................5

2.1 THE ACTS OF THE STATE OF KHOMELIA WERE TAKEN IN THE PURVIEW OF ITS

NATIONAL SECURITY AND DEFENSE...................................................................................5

2.2 THE STATE OF DIKOUTI HAS VIOLATED THE TREATY PROVISIONS.................................7

2.3 THE STATE OF DIKOUTI HAS VIOLATED THE PRINCIPLE OF PACTA SUNT SERVANDA..8

2.4 DOCTRINE OF MARGIN OF APPRECIATION..........................................................................9

3 DEPLOYMENT OF ARMED FORCES BY THE STATE OF DIKOUTI VIOLATES

INTERNATIONAL LAW AND NEEDED IMMEDIATE CESSATION FROM THE BOUNDARIES OF

KHOMELIA...................................................................................................................................10

3.1 THERE EXISTS NO RIGHT OF UNILATERAL HUMANITARIAN INTERVENTION.................10



3.2 ARGUENDO, THE INTERVENTION OF DIKOUTI WAS NOT IN CONFORMITY WITH

INTERNATIONAL LAW..........................................................................................................12

3.3 UNITED NATIONS SECURITY COUNCIL STAND ON UNILATERAL HUMANITARIAN

INTERVENTION......................................................................................................................14

4. THE ARMED FORCES DEPLOYED BY THE STATE DIKOUTI INDULGED IN THE BLATANT

VIOLATIONS OF VARIOUS HUMAN RIGHTS OF CIVILIANS.....................................................15

4.1 DIKOUTI EXERCISED EFFECTIVE CONTROL OVER ICG.....................................................16

4.2 DIKOUTI COMMITTED BREACHES OF LAWS OF WAR RECOGNIZED UNDER

INTERNATIONAL LAW..........................................................................................................17

4.3 FORCES OF KHOMELIA VIOLATED SEVERAL RESOLUTION OF THE UNITED NATIONS...19

5 TO ORDER THE STATE OF DIKOUTI TO REFRAIN FROM ANY VIOLENT ACTIVITIES IN

THE STATE OF KHOMELIA........................................................................................................21

5.1 BREACH OF THE PRINCIPLE OF TERRITORIAL INTEGRITY................................................21

5.2 FORCES OF DIKOUTI VIOLATED THE RESOLUTIONS OF GENERAL ASSEMBLY...............22

5. TO ORDER THE STATE OF DIKOUTI NOT TO LEND ANY SUPPORT TO ICG, A VIOLENT

INSURGENT GROUP.....................................................................................................................23

6.1 FOREIGN STATES CAN AID THE GOVERNMENT, BUT NOT THE INSURGENTS...................23

6.2 AID PROVIDED IN SPANISH WAR........................................................................................25

SUBMISSIONS TO THE COURT..........................................................................................XII



INDEX OF AUTHORITIES

Books

1. ANN V.W. THOMAS & A.J. THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICAS 216-17 (Southern Methodist University Press, Dallas, 1956)......................................24

2. B.A. WORTLEY, THE LEGAL PROBLEMS OF FOREIGN INVESTMENT IN DEVELOPING COUNTRIES 185 (University of Press, .Manchester, 1965)..................................................................................8

3. CF. SHAW, INTERNATIONAL LAW 1039 (Cambridge University Press, Cambridge, 2003)..............1

4. H. KELSEN, PRINCIPLES OF INTERNATIONAL LAW 417-41 (Rinehart & Winston, New York, 1952).................................................................................................................................................9

5. II INTERNATIONAL LAW COMMISSION YEARBOOK 247 (1966)........................................................2

6. JEAN-MARIE HENCKAERTS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: RULES 1 (Cambridge University Press, Cambridge, 2006)...........................................................................21

7. LOUIS HENKIN, HUMAN RIGHTS 712 (Foundation Press, New York, 1999)..................................11

8. MAX HILLAIRE, INTERNATIONAL LAW AND THE UNITED STATES MILITARY INTERVENTION IN THE WESTERN HEMISPHERE 38 (Martinus Nijhoff, Israel, 1997)..........................................................16

9. P. C. JESSUP, A MODERN LAW OF NATIONS 54 (The Macmillian Company, New York, 1948)...25

10. ROSALYN HIGGINS, INTERNATIONAL LAW AND CIVIL CONFLICT IN THE INTERNATIONAL REGULATION OF CIVIL WARS 170 (Thames and Hudson, London, 1972).....................................24

11. STEIN/VON BUTTLAR, VOLKERRECHT (Heymanns, Auflage, 10 neubearb, Aufl., 2000) 243.........1

12. YORAM DINSTEIN, 1 ISRAEL YEARBOOK ON HUMAN RIGHTS 218 (Martinus Nijhoff, Israel, 1997).........................................................................................................................................................16

Statutes1. Additional Protocol to the Geneva Conventions 1949...................................................................17

2. Convention on the Rights and Duties of States in the Event of Civil Strife, 1929...........................3

3. Havana Convention on the Rights and Duties of States in the Event of Civil Strife 1929.............24

4. International Covenant on Civil and Political Rights, 1966...........................................................21

5. Montevideo Convention on Rights and Duties of States, 1933........................................................4

I



6. The Constitution of the Unites States of America, 1787..................................................................5

7. United Nations Charter, 1945...........................................................................................................1

8. Vienna Convention of the Laws of Treaties, 1969.........................................................................20

Other Authorities1. 54 UN SCOR (3988th Mtg.) ¶ 6, UN Doc. S/PV.3988 (1999)........................................................12

2. INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY, at VII (quoting Secretary-General Kofi A. Annan, Millennium Report and Annual Report on the Work of the Organization) UN Docs. A/54/2000 &A/55/1 (2000) ¶¶ 48 & 37.................................................11

Resolutions

1. Organization of American States, General Assembly Resolution 78, 1972.....................................3

2. UN GA Res. 2131 (XX), UN Doc A/48/535, (1965).....................................................................11

3. UN GA Res. 2625 XXV, UN Doc. A/RES/2625(XXV) (1970)......................................................2

4. UN GA Res. 2675 XXV, UN Doc. S/RES/ 2675 XXV (1970)......................................................20

5. UN GA Res. 41/128, UN Doc. A/RES/41/12b (1986)...................................................................22

6. UN GA Res. 60/1 ¶ 5, UN Doc. No. A/RES/60/1 (2005)..............................................................22

7. UN GA Res.37/10, UN Doc. S/RES/37/10 (1982).........................................................................23

8. UN GA Res.42/22, UN Doc. S/RES/42/22 (1987).........................................................................23

9. UN SC Res. 1049, UN Doc. S/RES/1049 (1996)...........................................................................19






15. UN SC Res. 1373, UN Doc. S/RES/1373 (2001).............................................................................2

16. UN SC Res. 912, UN Doc. S/RES/912 (1994)...............................................................................19

II



Articles

1. Anthony Carty, Intervention and the Limits of International Law in Political Theory, International Relations and the Ethics of Intervention, POLITICAL THEORY, INTERNATIONAL RELATIONS, AND THE ETHICS OF INTERVENTION (Macmillan Publishing, London, 1993) 32..........4

2. Anthony D’Amato, International Law and Kosovo, 33 UNITED NATIONS LAW REPORT, UN Doc. A/RES/995 (John Carey ed., 1999)................................................................................................13

3. Daniel O’Donnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights, 4 HUMAN RIGHTS QUARTERLY 472-474 (1982)......................9

4. Dawn Steinhoff, Talking to the Enemy: State Legitimacy Concerns with Engaging Non-State Armed Groups, 45 TEXAS LAW JOURNAL 310 (2009)....................................................................16

5. I. Brownlie, Humanitarian Intervention, (J.N.Moore (ed)) LAW AND CIVIL WAR IN THE MODERN WORLD 224 (1974).........................................................................................................................12

6. J. W. Garner, Questions of International Law in the Spanish Civil War, 31 AMERICAN JOURNAL OF INTERNATIONAL LAW 66 (1937)................................................................................................24

7. Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 223 (1973)...................................................................................10

8. Jonathan I. Charney, Anticipatory Humanitarian Intervention in Kosovo, AMERICAN JOURNAL OF INTERNATIONAL LAW 1 (1999).......................................................................................................11

9. Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14 AUSTRALIAN NATIONAL UNIVERSITY INTERNATIONAL LAW REVIEW 321, 326 (1998).........................................................13

10. Louise, Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, BRITISH YEARBOOK OF INTERNATIONAL LAW 199 (1985).......................................23

11. M. Sassòli and A. Bouvier, How Does Law Protect in War? 49 LEIDEN JOURNAL OF INTERNATIONAL LAW 338-339 (2009)...........................................................................................17

12. Ronald St. J. Macdonald, The Margin of Appreciation, THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 83, 121 (1993)..............................................................................9

13. T. Modibo Ocran, The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping , 25 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW 18 (2002)...................11

14. Vaughan Lowe, International Legal Issues arising in the Kosovo Crisis, 49 INTERNATIONAL AND COMPARATIVE LAW REVIEW 934 (2000).......................................................................................12

III



Cases

1. Abella v. Argentina, Case No 11.137, Report No 55/97 (1997).....................................................17

2. Bosnia and Herzegovina v. Serbia and Montenegro, L.J.I.L. 21(1) (2008)...................................17

3. Greek case, 12 Yearbook ECHR 1 (1969)........................................................................................6

4. Ireland v. United Kingdom, Series A/No. 35(1978).......................................................................10

5. Kassem case, Military Court at Ramallah, Judgement at 806-811 (1969).....................................21

6. Kordic and Cerkez case, Judgment ¶¶ 25 & 34, Case No IT-95-14/2 (1999)................................17

7. Lawless v. Ireland, (No.3) EHRR 15 (1961)....................................................................................6

8. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ .Reports at 148 ¶ 25 (2004).........................................................................7

9. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Reports at 226 (July 8)............................................................................................................................................18

10. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986 ICJ Reports 14 ¶ 289 (June 27).........................................................................................................3

11. Prosecutor v. Blaskic, Judgment ¶ 180, Case No IT-95-14 (2000)................................................17

12. Prosecutor v. Stanislav Galic, Opinion and Judgment Trial chamber, Case No. IT-98-29-A (2003)..............................................................................................................................................18

13. S.S. Lotus Case (France v. Turkey), PCIJ Series A/No. 10 at 18 (1927).......................................22

14. The Corfu Channel Case (U.K. v. Alb.), 1949 ICJ Reports 4 (Apr. 9)............................................4

IV



STATEMENT OF JURISDICTION

The State of Khomelia and the State of Dikouti have agreed to submit their dispute to the

International Court of Justice pursuant to Article 40(1) of the Statute of the International

Court of Justice and in accordance with the Compromis notified to the Court on 17

November 2012. Pursuant to Article 36(2) of the Statute, the parties recognize compulsory

jurisdiction of the Court regarding legal disputes. Both parties shall accept the Court’s

decision as final and binding and execute it in good faith.

V



STATEMENT OF FACTS

1. Khomelia is situated in the Horn of Jarica, easternmost projection of the Jarican continent.

Genocide and war have historically been major challenges for the entire continent of Jarica and

the Horn of Jarica is certainly no exception.

2. For many years, the Critish, Krench and other Turokean powers fought over the Khomelian

region. The Critish military administration held power in the Horn of Jarica until 1950 when a

United Nation Trusteeship territory under the Pitanian administration was established in ex-

Pitanian Khomeliland.

3. When the Colony was declared an independent sovereign State by the United Nations in June,

1960, the two sides, the Northern & Southern halves of Khomelia- though sharing a common

Utekian enemy- quickly became opponents for control over their own government.

4. The government eventually became quite extensive, including an adequate Constitution and

Supreme Court, the government ultimately decided to give the majority of its power to one man,

the Executive President, a rather common theme throughout Khomelian history.

5. The Fikra Clan, the largest clan in Khomeliland, was left out of the political participation in the

Khomeli government since the military coup in 1969. The Fikra Clan established an anti-

government political faction called the Khomeli National Movement (KNM).

6. The KNM was known for raiding cities and refugee camps and murdering civilians who

supported the Khomelian government.

7. When fighting between famine and chaos broke out within Khomelia 1992, the United Nations

(UN) took action to prevent the complete destabilization of the Horn of Jarica.

8. Throughout the 1990s and into the 2000s, Khomelia has been in an outright civil war. From this

civil war, three distinct groups have seemingly emerged – Islamic Courts Group (ICG), the

Transitional Federal Government (TFG), and the Utekian Military Forces (UMF).

9. The TFG developed as the Strongest of over 15 national reconciliation conferences in Khomelia

since 1991. The implementation of the TFG project was not put into effect until 2000 and

officers were not chosen until 2004, following the approval of the government’s charter.

VI



10. When the TFG and the Utekian forces work together to constitute a strong Khomelian Federal

Government, the ICG continued its insurgency all over the territory.

11. In the wake of 2010, the ICG further solidified the movement against the TFG and in pursuance

of the same, publishes articles, advertisements and posters and in the World Media explaining

the ICG’s mission of capturing the power

12. In order to overthrow TFG, the ICG gives a call for immediate aid from international community

members. Responding to the ICG’s plea for immediate aid and subsequent establishment of

government in Khomelia, a country named Dikouti, declared that it will lend its support to ICG.

13. Subsequently, Dikouti had deployed its troop in the territory of Khomelia without even resorting

to any peaceful talks.

14. The TFG requested the government of Dikouti to withdraw its armed forces from Khomelia to

which Dikouti refused. On 1st December, 2010 a treaty named “Restoration of Peace,

Withdrawal of Armed Forces from Khomelia & Mutual Assistance Treaty” in which it was

agreed that the states will not interfere in each other internal affairs and the State of Dikouti will

withdraw the armed forces from the territory of Khomelia.

15. As a result, the Government of Dikouti still retained 15% of the Dikouti army on the land of

Khomelia. However, on 16th December, 2010, Mr. Rokhala Tahin, President of ‘Human Rights

Tigers’ declared that he will launch a countrywide protest on 18th December, 2010 against

Khomelian government.

16. The TFG government issued warnings to the people of Khomelia that severe actions will be

taken on the individuals who will indulge in the protest.

17. STF gave warning to the protestors, however the majority of the protestors were reluctant to

cooperate. In the wake of such reluctance, the STF was forced to use force in resolving the

situation.

18. In wake of such situation, the State of Dikouti not only ordered to its remaining armed forces to

stay on in the territory of Khomelia but also deployed another regiment of army in the territory.

VII



LEGAL ISSUES


INTERNATIONAL LAW

2. DEPLOYMENT OF ARMED FORCES VIOLATES THE TREATY ENTERED INTO BY BOTH THE

STATES

3. DEPLOYMENT OF ARMED FORCES BY THE STATE OF DIKOUTI VIOLATES INTERNATIONAL LAW

AND NEEDED IMMEDIATE CESSATION FROM THE BOUNDARIES OF KHOMELIA


VIOLATIONS OF VARIOUS HUMAN RIGHTS OF CIVILIANS

5. TO ORDER THE STATE OF DIKOUTI TO REFRAIN FROM ANY VIOLENT ACTIVITIES IN THE STATE

OF KHOMELIA


INSURGENT GROUP

VIII



SUMMARY OF THE SUBMISSIONS


INTERNATIONAL LAW

Dikouti has acted in violation of the established Principles of United Nations Charter, and of

customary law obligation to refrain from the threat or use of force. The state of Dikouti has

interfered in the internal matter of state of Khomelia, which is prohibited under the Customary

International Law. State of Dikouti has acted in violation of the United Nations Charter and

various resolution adopted by the Security council, General assembly and other international

bodies, which strictly prohibit any kind of intervention by the third state party in the internal

affairs of a State and also lay down a obligation to refrain from any violence.

2. DEPLOYMENT OF ARMED FORCES VIOLATES THE TREATY ENTERED INTO BY BOTH THE

STATES

The treaty entered between both the states i.e. between state of Khomelia and State of Dikouti

was breached by the deployment of armed forces by the state of Dikouti. Treaty was entered

between the state of Khomelia and the State of Dikouti wherein it was stipulated that both the

States will refrain from any violent activities and the State of Dikouti will withdraw the armed

forces from the territory of Khomelia. The TFG government witnessed protest where the

government’s action against the protesters are attributed to the states national security and

defense since the state was in a very vulnerable phase and even minor agitation could have

resulted in massive slaughter and chaos in the nation. After this incident the State of Dikouti

IX



deployed its armed forces in the state of Khomelia which was in Violation of the Treaty and

International Law principles as well.

3. DEPLOYMENT OF ARMED FORCES BY THE STATE OF DIKOUTI VIOLATES INTERNATIONAL

LAW AND NEEDED IMMEDIATE CESSATION FROM THE BOUNDARIES OF KHOMELIA

It is to be understood that states would rarely intervene unless they would derive benefits from

such an intervention, otherwise the political cost would be very high. The ICJ has noted that

‘respect for territorial sovereignty is an essential foundation of international relations’. Military

intervention and the threat or use of force is condemned separately from other forms of

intervention. Humanitarian intervention is indeed, an unacceptable assault on sovereignty. It is

worth noting unilateral humanitarian intervention has been almost universally condemned by all

states. Unilateral intervention is viewed as ‘contravening the target state's essential right to be let

alone’ and thus not sanctioned by the United Nations Charter.



Dikouti was supporting the ICG to fight against the government in order to establish their rule

over Khomelia and moreover, create a situation of widespread panic and chaos in Khomelia.

Dikouti was tacitly supporting the ICG by providing aid. Moreover it is very much understood

that the State of Dikouti committed violent acts on the civilians of State of Khomelia which is in

contravention with the United Nations Charter, Geneva Convention and the Rules of Customary

International Law. The Geneva Convention, ICCPR, various resolutions of UN and Rules of

International Law during an International Armed conflict the parties to the conflict must

X



distinguish between the combatants and the civilians. The State of Dikouti failed to do so and

committed gross violations of Human Rights in the State of Khomelia.

5. TO ORDER THE STATE OF DIKOUTI TO REFRAIN FROM ANY VIOLENT ACTIVITIES IN THE

STATE OF KHOMELIA

The activities of State of Dikouti were in violations with the United Nations charter and

Resolution of General assembly, which refrains the states in their international relations from the

threat or use of force against the territorial integrity or political independence of any State, or in

any other manner inconsistent with the purposes of the United Nations. Activities of the state of

Dikouti in Khomelia are also a threat to the national peace and security of the state of Khomelia

as it created a situation of panic and chaos in the state of Khomelia which was already in a

restless position at that time. Hence the activities of the State of Dikouti are in violation of the

international law and are also a threat to the State of Khomelia, hence, should refrain from any

violent activities in the State of Khomelia.


INSURGENT GROUP

The principle of non intervention would certainly lose its effectiveness as a principle of law if

intervention were to be justified by a mere request by an opposition group in another state.

Moreover, as per the rule of International Law, foreign states can give aid to the government, but

not to insurgents therein. The states are barred from providing direct assistance to such groups,

the right to provide assistance as a non neutral pertained only to aiding the incumbent

government. This assistance given by the State of Dikouti is also in violation with International

XI



Law which forbids any assistance to the rebel group by the third state. Hence, it is understood

that the aid provided by the state of Dikouti to the ICG is in contravention to International law

and Dikouti should refrain from providing any assistance thereto.

XII



SUBMISSIONS


INTERNATIONAL LAW

As a matter of law, Khomelia claims that Dikouti has acted in violation of Article 2(4) of the

United Nations Charter1, and of customary law obligation to refrain from the threat or use of

force. The principle of territorial integrity of states is well established and protected by a series

of consequential rules prohibiting interference within the domestic jurisdiction of states as for

example Article 2(7).2 The prohibition on intervention between states has its foundation in

customary law and is based on the principle of sovereignty of the states.3 International law

prohibits intervention in conflict with civil war within another country, supports incitement to

subversive, terrorist or armed activities intended to lead to overthrowing power relationships.4

The state of Khomelia claims for the mentioned violations of International laws.

1.1 BREACHES OF UN RECOGNIZED PRINCIPLES COMMITTED BY THE STATE OF DIKOUTI

1 Article 2(4) of the United Nations Charter, 1945 reads: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’[hereinafter The Charter]

2 The Charter, Id., Article 2(7) reads: ‘Nothing contained in the present Charter shall authorize .the United Nations to intervene in matters which are essentially within the domestic .jurisdiction of any state.’

3 CF. SHAW, 6 INTERNATIONAL LAW 1039 (Cambridge University Press, Cambridge, 2003).

4STEIN/VON BUTTLAR, VOLKERRECHT 243 (Heymanns, Auflage, 2000).1



Dikouti committed the breaches of the recognized principles of United Nation including the

Charter and resolution adopted by General Assembly and Security Council.

1.1.1 Article 2(4) of the United Nations Charter

It quotes with approval an observation by the International Law Commission to the effect that

‘the great majority of international lawyers today unhesitatingly hold that Article 2(4), together

with other provisions of the Charter, authoritatively declares the modern customary law

regarding the threat or use of force.’5

1.1.2 Security Council Resolution 1373

The Security Council resolution clearly states that states should not provide any form of support

to acts causing widespread panic and prevent people from planning or facilitating such attacks.6

1.1.3 General Assembly resolution 2625 (XXV)

United Nations Resolutions constitute ‘subsequent practice’ for interpreting United Nations

Charter provisions.7 The Declaration states that ‘armed intervention and all other forms of

interference or attempted threats against the personality of the State or against its political,

economic and cultural elements are in violation of international law.’8

1.2 BREACHES OF OTHER CUSTOMARY PRINCIPLES OF INTERNATIONAL LAW 5II INTERNATIONAL LAW COMMISSION YEARBOOK 247 (1966).

6UN SC Res. 1373, decided: ‘States to Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts,…eliminating the supply of weapons.’

7Vienna Convention on the Law of Treaties, 1969, Article 31(3) (b).

8 UN GA Res. 2625 XXV, UN Doc. A/RES/2625(XXV) (1970).[hereinafter Friendly Declaration]

2



Dikouti committed breaches of the recognized principles of customary international law. Acts

constituting a breach of the customary principle of non-intervention will constitute a breach of

the principle of non-use of force in international relations.9

1.2.1 Resolution 78 adopted by the General Assembly of the Organization of American

States

The resolution reflects the customary law and makes a clear statement for states to strictly

observe the principle of non intervention to ensure peaceful coexistence and provides with an

obligation not to support or promote any armed activities against another state. Para 110 and Para

311 of the resolution are relevant in the present case.

1.2.2 Convention on the Rights and Duties of States in the Event of Civil Strife

Art. 1(1)12 of the convention guides the nations to prevent nationals from participating in any

actions of civil strife.

9 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986 ICJ Reports 14 ¶ 289 (June 27) (dissenting opinion of Schwebel, J.).[hereinafter Nicaragua Case]

10 Para 1 of the General Assembly Resolution 78, 1972 reads: ‘To reiterate the principles of non intervention as a means of ensuring peaceful coexistence among them and to refrain from committing any direct or indirect act that might constitute a violation of those principle.’ Doc No. CP/RES.78 (1972).[hereinafter Resolution 78]

11 Resolution 78, Id., Para 3 reads: ‘Reaffirm the obligation of these states to refrain from. Organizing, supporting, promoting, financing, instigating, or tolerating subversive armed activities against .another state and from intervening in a civil war in another state or in its internal struggles.’

12 Article 1(1) of Convention on the Rights and Duties of States in the Event of Civil Strife, 1929 reads: ‘To use all means at their disposal to prevent the inhabitants of their territory, nationals or aliens, from participating in, gathering elements, crossing the boundary or sailing from their territory for the purpose of starting or promoting civil strife.’

3



1.2.3 Montevideo Convention on Rights and Duties of States

Article 813 of the convention deprives the state of any right to intervene in the internal or external

affairs of another State.

1.3 INTERNATIONAL COURT OF JUSTICE HAS DENOUNCED RIGHT TO INTERVENTION

The ICJ had denounced any claimed right to intervention in the 1949 Corfu Channel case14, in

which it held nonintervention to be ‘a corollary of the principle of the sovereign equality of

states’15 and a principle of customary international law. Similarly, in the Nicaragua case, relying

on the definition of intervention found in the Friendly Relations Declaration,16 the ICJ found that

the U.S. had violated international law, specifically by training, arming, equipping, financing and

supplying the Contra forces or otherwise encouraging, supporting and aiding military and

paramilitary activities in and against Nicaragua.17

13 Article 8 of the Montevideo Convention on Rights and Duties of States, 1933 reads: ‘No state has the right to intervene in the internal or external affairs of another.’

14 The Corfu Channel Case (U.K. v. Alb.), 1949 ICJ Reports 4 (Apr. 9).[hereinafter Corfu Channel]

15Anthony Carty, Intervention and the Limits of International Law in Political Theory,

International Relations and the Ethics of Intervention, POLITICAL THEORY, INTERNATIONAL RELATIONS AND THE ETHICS OF INTERVENTION (Macmillan Publishing, London, 1993) 32.

16Friendly Declaration, Supra 8.

17Nicaragua Case, Supra 9 at 146.4



2 DEPLOYMENT OF ARMED FORCES VIOLATES THE TREATY ENTERED INTO BY BOTH THE

STATES

Dikouti breached the treaty signed between both the states on 1st December, 201018 by

deployment of armed forces in the State of Khomelia. The treaty stipulated that both the States

will refrain from any violent activities and the State of Dikouti will withdraw the armed forces

from the territory of Khomelia.19

2.1 THE ACTS OF THE STATE OF KHOMELIA WERE TAKEN IN THE PURVIEW OF ITS NATIONAL

SECURITY AND DEFENSE

In the present case, the acts done by the Khomelian government or TFG against the protestors

were as a result of National Security and defense. It is understood that every government has the

right to take forceful measures to preserve its existence.20 Moreover under Article 521 of the

Treaty, it was decided that priority to be given to the cases concerning national security and

integrity.

2.1.1 Defining the ‘time of Public Emergency’

18Compromis, ¶ 21.

19Compromis, ¶ 21.

20 Article 1(8) of The Constitution of the Unites States of America, 1787 reads: ‘Congress has the power to provide calling forth of the militia to execute the laws of the Union, suppress insurrections, and repel .invasions.’

21 Article 5 of The Restoration of Peace, Withdrawal of Armed Forces from Khomelia and Mutual Assistance Treaty, 2010 reads: ‘In case, a question of national security and integrity is involved in pursuance of the treaty, the state shall give priorities to such matters and shall cooperate with each other.’[hereinafter The Treaty]

5



In Lawless v. Ireland,22 the European Courts of Human Rights defined ‘time of public

emergency’ as ‘an exceptional situation of crisis or emergency which afflicts the population and

constitutes a threat to the organized life of the community of which the community is composed.

The definition was further developed and clarified in the Greek case.23 There are four essentials

to prove that public emergency prevailed in the state of Khomelia.24

2.1.1.1 It must be actual or imminent

Throughout the 1990s and into the 2000s, Khomelia has been in an outright civil war.25 The

situation had worsened after the deployment of forces by the state of Dikouti.26

2.1.1.2 Its effects must involve the whole nation

The ‘Human Rights Tigers’, an active human rights NGO declared to launch a countrywide

protest on 18th December, 2010.27 So, it is clear that the uprising from this declaration and

subsequent protest involved the whole nation.

2.1.1.3 The continuance of the organized life of the community must be threatened

22Lawless v. Ireland, (No.3) EHRR 15 (1961).

23Greek case, 12 Yearbook ECHR 1 (1969).

24Id.

25Compromis, ¶ 14.

26Compromis, ¶ 19.

27Compromis, ¶ 22.6



The state of Khomelia was under a constant threat of the disruption of its organized life as the

ICG, an insurgent group, declared its intention to overthrow the existing government and

establish themselves as the sole repository of people’s fate.28

2.1.1.4 The crisis or danger must be exceptional

The danger posed was exceptional as if this action was allowed to carry put by the NGO, this

could have really hampered the very existence of the nation and the organized life of the state.

2.1.2 Immediate necessity of saving the life of Nation

In the present case, at the time of protest there was a great and serious concern towards the

government regarding the National security. The TFG deployed a ‘Special Task Force’ (STF) to

prevent any kind of uprising against the government.29 STF issued warning to the people who

raised a voice in the protests who were reluctant to cooperate.30 The protest carried out by the

civilians could have resulted into more worsening situations which threatened the very life of the

nation. So the government was forced to take such action against protestors. Further, the

principle of national security was recognized in the ICJ Advisory opinion on legal consequences

of the construction of wall in the occupied Palestinian territory.31

2.2 THE STATE OF DIKOUTI HAS VIOLATED THE TREATY PROVISIONS

28Compromis, ¶ 16.

29Compromis, ¶ 21.

30Compromis, ¶ 21.

31 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ .Reports at 148 ¶ 25 (2004).

7



State of Khomelia had violated the treaty by not following the treaty provisions stipulated

therein.

2.2.1 Obligation to withdraw forces from Khomelia

Article 232 of the Treaty stipulates that Dikouti shall withdraw its armed forces from Khomelia

without any delay. But, the state of Dikouti retained 15% of the Dikouti army on the land of

Khomelia.33

2.2.2 Dikouti promised to assist Khomelia in pursuance of peace

State of Dikouti has also violated the Article 434 of the treaty. It was decided in the treaty that

each party shall assist each other and provide every possible aid for maintaining peace and order.

Contrary to the promise, they raised military attacks and provided support to the ICG for making

power shift in Khomelia.35

2.3 THE STATE OF DIKOUTI HAS VIOLATED THE PRINCIPLE OF PACTA SUNT SERVANDA

32 The Treaty, Supra 21, Article 2 reads: ‘The State of Dikouti shall withdraw its armed forces from the territory of Khomelia without any delay and cooperate with the State of Khomelia to maintain peace provided the State of Khomelia does not incur any violent acts on its civilians.’

33Compromis, ¶ 22

34 The Treaty, Supra 21, Article 4: ‘Each party shall assist and provide every possible aid and mutual assistance to each other in the matters of maintaining peace and order.’

35Compromis, ¶17.8



The sanctity of contractual arrangement is expressed in the principle of Pacta Sunt Servanda,

whose rationale is that the parties to the treaty bound to respect it in good faith.36 Also, Article

2637 of the Vienna Convention on Law of Treaties stipulates the principle of Pacta Sunt

Servanda. The treaty was binding upon the parties to it38 and must be performed in good faith. By

so, violated treaty and the principle of Pacta Sunt Servanda of high value in International Law.39

2.4 DOCTRINE OF MARGIN OF APPRECIATION

In assessing whether a ‘public emergency’ exists and what steps are necessary to address it,

states are granted a so-called margin of appreciation. The doctrine of margin of appreciation

allows the court to escape the dilemma of ‘how to remain true to its responsibility to develop a

reasonably comprehensive set of review principles appropriate for application across the entire

convention, while at the same time recognizing the diversity of political, economic, cultural and

social situations in the societies of the contracting parties.’40 The margin of appreciation

represents the discretion left to a state in ascertaining the necessity and scope of measures to be

taken in the circumstances prevailing within its jurisdiction.41

36 B.A. WORTLEY, THE LEGAL PROBLEMS OF FOREIGN INVESTMENT IN DEVELOPING COUNTRIES 185 (University Press, .Manchester, 1965).

37 Article 26 of Vienna Convention on Law of Treaties, 1969 reads: ’Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

38 The Treaty, Supra 21, Article 8 reads: ‘No other State is bound by the provisions of this treaty except for The State of Khomelia and the State of Dikouti.’

39 H. KELSEN, PRINCIPLES OF INTERNATIONAL LAW 417-41 (Rinehart & Winston, New York, 1952).

40 Ronald St. J. Macdonald, The Margin of Appreciation, THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 83 & 121 (Ronald St. J. Macdonald, ed., 1993).

41 Daniel O’Donnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights, 4 HUMAN RIGHTS QUARTERLY 472-474 (1982).

9



2.4.1 State of Khomelia is in better position to examine the exigencies of the Situation

In Ireland v. United Kingdom42, the European Court held that ‘it falls in the first place to each

contracting state, with its responsibility for “the life of [its] nation”, to determine whether that

life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to

overcome the emergency. By reason of their direct and continuous contact with the pressing

needs of the moment, the national authorities are in principle in a better position.43 So, the state

of Khomelia was in a better position to judge the exigencies of the situation and so it took the

action against the civilians in order to curb with the situation of ‘public emergency’

3 DEPLOYMENT OF ARMED FORCES BY THE STATE OF DIKOUTI VIOLATES INTERNATIONAL

LAW AND NEEDED IMMEDIATE CESSATION FROM THE BOUNDARIES OF KHOMELIA

Rougier’s ‘Le Théorie de l’Intervention d’Humanité’44 in his work, rejected the idea of unilateral

intervention. It is to be understood that states would rarely intervene unless they would derive

benefits from such an intervention, otherwise the political cost would be very high.45 Moreover,

in the Corfu Channel case, The Court noted that ‘respect for territorial sovereignty is an essential

foundation of international relations’.46

3.1 THERE EXISTS NO RIGHT OF UNILATERAL HUMANITARIAN INTERVENTION

42Ireland v. United Kingdom, Series A/No. 35(1978).

43Id. ¶ 207.

44 Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 223 (1973).[hereinafter Fonteyne]

45 Id.

46Corfu Channel, Supra 14.10



The General Assembly adopted in 1965 a Declaration on the Inadmissibility of Intervention47

which forbids all forms of intervention in the internal or external affairs of other states. Military

intervention and the threat or use of force is condemned separately from other forms of

intervention.48 Humanitarian intervention is, indeed, an unacceptable assault on sovereignty.49

3.1.1 The idea of unilateral Humanitarian intervention is in contravention to state’s

essential rights

It is thus worth noting unilateral humanitarian intervention has been almost universally

condemned by all states.50 Unilateral intervention is viewed as ‘contravening the target state's

essential right to be let alone’51 and thus not sanctioned by the United Nations Charter. State

neighbors do not in fact intervene to safeguard human rights, though they may sometimes use

that pretext.52 Relying on to the Kosovo situation it was said that the so called doctrine of

Humanitarian Intervention can lead to an escalation of International violence, discord and

disorder, and diminish protection of human rights worldwide.53

47 UN GA Res. 2131 (XX), UN Doc A/48/535, (1965).

48Id. ¶ 1.

49 INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY, at VII (quoting Secretary-General Kofi A. Annan, Millennium Report and Annual Report on the Work of the Organization) UN Doc. A/54/2000 &A/55/1 (2000) ¶¶ 48 & 37.

50 T. Modibo Ocran, The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping, 25 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW 18 (2002).

51LOUIS HENKIN, HUMAN RIGHTS 712 (Foundation Press, New York, 1999).

52Id. at 714.

53 Jonathan I. Charney, Anticipatory Humanitarian Intervention in Kosovo, AMERICAN JOURNAL OF INTERNATIONAL LAW 1 (1999).

11



3.1.2 State practice proving that no right to Unilateral Humanitarian Intervention exists.

The cases of the murdered Chinese in Indonesia, the war against Southern Sudanese, the events

in Rwanda, Burundi, Kashmir, Naga and South Africa54 would have justified humanitarian

intervention but states have not engaged themselves in the protection of the affected population

and thus have reaffirmed the existing principle of non intervention. Moreover, The Russian

ambassador to the UN, in the start of the NATO campaign against Yugoslavia, said that the

justification of attacks with the need for humanitarian intervention was completely untenable.55

3.2 ARGUENDO, THE INTERVENTION OF DIKOUTI WAS NOT IN CONFORMITY WITH

INTERNATIONAL LAW

Intervention may be in very remote conditions be considered legitimate if it qualifies certain

degree of correspondence with International law and the intention behind the Intervention is of

paramount importance.

3.2.1 Articulation by Security Council

Authority from the Security Council is necessary for making Intervention.56 The United Nations

Charter under its chapter VIII regarding regional arrangements explicitly provides that when a

regional enforcement action has to take place, it requires a prior authorization from the Security

Council.57 The assent of the Security Council is essential for making any such actions against the

54 I. Brownlie, Humanitarian Intervention (J.N.Moore (ed)), LAW AND CIVIL WAR IN THE MODERN WORLD 224 (1974).

5554 UN SCOR (3988th Mtg.) ¶ 6, UN Doc. S/PV.3988 (1999).

56 Vaughan Lowe, International Legal Issues arising in the Kosovo Crisis, 49 INTERNATIONAL AND COMPARATIVE LAW REVIEW 934 (2000).

57 The Charter, Supra 1, Article 53 reads: ‘The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no

12



State under the aegis of Chapter VII58 being the sole repository of international peace and

security.59

3.2.2 Intervention by a multilateral force

The Intervention was carried by a single State i.e. Dikouti, whereas there should be joint action

taken by states through United Nations Security Council or through a regional organization as

was the case in Sierra Leone.60

3.2.3 Projected damage caused by the Intervention cannot be more to the jeopardy

The damage arising out of the Intervention should not be more than the existing state.61 It is

noted that after the deployment of the troops by Dikouti in the territory of Khomelia the issue

worsened further and supporters started campaigning against the TFG government.62

3.2.4 The Intervening state must have an overriding humanitarian motive

enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.’

58 The Charter, Supra 1, Chapter VII reads: ‘Actions with respect to threats to the peace, Breaches of the peace, and acts of Aggression.’

59 The Charter, Supra 1, Article 24(1) reads: ‘In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.’

60 Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14 AUSTRALIAN NATIONAL UNIVERSITY INTERNATIONAL LAW REVIEW 321, 326 (1998).

61 Anthony D’Amato, International Law and Kosovo, 33 UNITED NATIONS LAW REPORT, UN Doc. A/RES/995 (John Carey ed., 1999).




The most important essential is that the intervention should have an overriding humanitarian

motive.63 The ICG gave a call for immediate aid for their mission of capturing the power in the

state64 and Dikouti responding to the ICG’s plea declared to lend its support.65 Hence, it is clear

that the state of Dikouti had a political motive behind deployment of its troops and justifying it

under the guise of humanitarian intervention.

3.2.5 Intervener must exhaust all peaceful remedies before resorting to a use of force

Perhaps the most fundamental principle of international law is to maintain peace amongst the

nations and try to settle by peaceful negotiations before resorting to peace in any matter.66 In the

instant case, Dikouti deployed its troops in the territory of Khomelia without even resorting to

any peaceful talks.67

3.3 UNITED NATIONS SECURITY COUNCIL STAND ON UNILATERAL HUMANITARIAN

INTERVENTION

The very idea of Unilateral Humanitarian Intervention is viewed as presenting a greater risk of

political motives disguised as concern for human rights and victim protection. The United

Nations Security Council has very rightly taken a step of prohibiting the states to commit any

such acts.

3.3.1 External States are under an obligation to refrain from interference 63 Fonteyne, Supra 44 at 258-60.

64Compromis, ¶ 16.

65Compromis, ¶ 17.

66 Fonteyne, Supra 63.




The Council's 1997 peace plan called for the ‘withdrawal of all external forces’ and

‘reaffirmation of respect for the national sovereignty and the territorial integrity of Zaire.’68 More

recently, the Council has invoked traditional non intervention language from the ‘Friendly

Relations’ Declaration, reaffirming that states are under an obligation to respect the territorial

integrity, political independence and national sovereignty and refrain from any interference in

each other’s internal affairs.69

3.3.2 United Nations response to Individual state Intervention

When civil war erupted in Congo in 1996, the Security Council called upon ‘States in the region

to desist from any act that may further exacerbate the situation’ and asked all states ‘to respect

the sovereignty and territorial integrity of the States in the region.’70 These were directed at

Rwanda, Uganda, and other countries that had provided support to one of the various factions

struggling for power.



Dikouti was supporting the ICG to fight against the government in order to establish their rule

over Khomelia71 and moreover, created a situation of widespread panic and chaos in Khomelia.

68UN SC Res. 1097, UN Doc. S/RES/1097 (1997).



71 Compromis, ¶ 18.15



Dikouti was tacitly supporting the ICG. As per the settled principles of International Law ‘In an

internal conflict, when the third party turns to intervention on behalf of the rebels, an

international conflict comes into being.’ 72 Under the Geneva Convention the nature of the

conflict changes from internal to international when the third party state intervenes on behalf of

the insurgent group.73

4.1 DIKOUTI EXERCISED EFFECTIVE CONTROL OVER ICG

Dikouti committed breaches in international law pertaining to the territorial integrity of

Khomelia as it was tacitly supporting ICG in insurgent activities. It is thus noted that Dikouti

responded to the ICG’s plea for immediate aid and subsequent establishment of government in

Khomelia.74 No state may ‘organize, assist, foment, finance, incite or tolerate subversive,

terrorist or armed activities directed towards the violent overthrow of regime of another state, or

interfere in civil strife in another state.’75 The principle of effective control has been recognized

by the same court in cases such as Nicaragua Case76 and Bosnia and Herzegovina v. Serbia and

Montenegro77 where the Court relied on the Effective Control test.

72 YORAM DINSTEIN, 1 ISRAEL YEARBOOK ON HUMAN RIGHTS 218 (Martinus Nijhoff, Israel, 1997).

73 Dawn Steinhoff, Talking to the Enemy: State Legitimacy Concerns with Engaging Non-State Armed Groups, 45 TEXAS LAW JOURNAL 310 (2009).

74Compormis, ¶ 17.

75 MAX HILLAIRE, INTERNATIONAL LAW AND THE UNITED STATES MILITARY INTERVENTION IN THE WESTERN HEMISPHERE 38 (Martinus Nijhoff, Israel, 1997)

76 Nicaragua Case, supra note 9, ¶ 114.

77Bosnia and Herzegovina v. Serbia and Montenegro, L.J.I.L. 21(1) at 63-64 (2008).16



4.2 DIKOUTI COMMITTED BREACHES OF LAWS OF WAR RECOGNIZED UNDER INTERNATIONAL

LAW

The principle of distinction between civilians and the combatants is one of the fundamental

principles of modern international law.78 The importance of ensuring that civilians were not

targeted was echoed by the ICTY in Blaskic79, and Kordic and Cerkez case.80 The principle of

distinction was also affirmed by the Inter-American Commission on Human Rights in the Abella

v. Argentina.81

4.2.1 Attacks were on the civilians

It is to be noted that insurgency caused by the armed forces of Dikouti attacked on the civilians

and as per the Convention and humanitarian on the civilians prohibited. Article 50(1)82 of

Additional protocol defines that the population is a civilian under the meaning of International

Law.

4.2.1.1 Duty to demarcate between civilians and combatants

78 M. Sassòli and A. Bouvier, How Does Law Protect in War? 49 LEIDEN JOURNAL OF INTERNATIONAL LAW 338-339 (2009).

79Prosecutor v. Blaskic, Judgment ¶ 180, Case No IT-95-14 (2000).

80 Kordic and Cerkez case, Judgment ¶¶ 25 & 34, Case No IT-95-14/2 (1999).

81Abella v. Argentina, Case No 11.137, Report No 55/97 (1997).

82 Additional Protocol to the Geneva Conventions 1949, Article50 (1) reads: ‘A civilian is any person who does not belong to one of the categories of persons referred to in Article 4’ .[hereinafter Additional Protocol]

17



Article 4883 of the Additional Protocol lays an obligation on the parties to the conflict to

distinguish between civilians and combatants. In the Nuclear weapon case84, the International

Court of Justice in the advisory opinion confirmed that the principle of distinction holds that

States must not make civilians the object of attack.

4.2.1.2 Civilians shall be protected during an armed Conflict

Article 51(1)85, Article 51(2)86 and Article 51(3)87 of the Additional Protocol I contain provisions

related to the protection of the civilians during armed conflict. In the case of Prosecutor v.

Stanislav Galic88 the ICTY held that in case of armed conflict attacks should not be directed

towards the civilians.

4.2.1.3 Civilians should not be made subject of Attacks

83 Additional Protocol, Supra 82, Article 48 reads: ‘In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives

84 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Reports at 226 (July 8).

85 Additional Protocol, Supra 82, Article51 (1) reads: ‘The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.’

86 Additional Protocol, Supra 82, Article51 (2) reads: ‘The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.’

87 Additional Protocol, Supra 82, Article 51 (3), reads ‘Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.’

88 Prosecutor v. Stanislav Galic, Opinion and Judgment Trial chamber, Case No. IT-98-29-A (2003).

18



Article 52(1)89 prohibits the attack on civilian objects and specifically stipulates that civilians

should not be an object of attack. The United Nations Security Council has repeatedly

condemned the failure to ensure that civilians are not made subject to attack, either deliberately

or through negligence, in conflicts such as Rwanda90, Burundi91 and Sierra Leone.92

4.2.2 Fundamental rights to civilians during armed Conflict

Article 75 of the additional protocol gives fundamental guarantee to the civilians during an

armed conflict. Article 75 (2) (a)93 and Article 75 (2) (e)94 prohibits any kind of violent act at any

time and any place whatsoever against the civilians. It can be very well deduced from the facts

that during insurgent activities, the acts of violence were committed against the civilians by the

forces of Dikouti.95

4.3 FORCES OF KHOMELIA VIOLATED SEVERAL RESOLUTION OF THE UNITED NATIONS

The armed forces of Dikouti while indulging in insurgency committed various violent acts which

have violated the resolutions of the United Nations. United Nations Resolution constitutes

‘subsequent practice’ for interpreting United Nations Charter provisions.96 89 Additional Protocol, Supra 82, Article52 (1), reads ‘Civilian objects shall not be the object of

attack or of reprisals. Civilian objects are all objects which are not military objectives.’




93 Additional Protocol, Supra 82, Article 75 2(a), reads: ‘Violence to the life, health, or physical or mental well-being of persons, in particular.

94 Additional Protocol, Supra 82, Article 75 2(e), reads: ‘Threats to commit any of the foregoing acts.’

95 Compromis, ¶ 19.

96Supra 7.19



4.3.1 Forces of Khomelia violated the resolution of United Nations

The State of Khomelia while committing their counter insurgency activities committed blatant

violations of human rights and thus in turn violated Security Council resolutions.

4.3.1.1 Resolution 1296 (2000) of the Security Council

The Security Council laid emphasis on the protection of civilians in armed conflict where it

reaffirmed the principle of distinction as being applicable to all armed conflicts.97 It is noted that

in pursuance of such military actions, the state of Dikouti killed many civilians out which many

were women, senior citizens and children.98

4.3.1.2 Forces of Dikouti Violated the resolution of General Assembly

Resolution (2675 XXV) states that in conduct of the military operations during armed conflict

distinction must be made between civilians and the combatants and hence not be made subject to

military operations.99

4.4 FORCES OF DIKOUTI VIOLATED THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS

Armed forces of Dikouti violated Article 6 of the covenant as it confers the right to life.100 This is

the very basic Human Rights conferred on every individual by law. Also, Forces of Dikouti have


98Compromis, ¶ 19.

99UN GA Res. 2675 XXV, UN Doc. S/RES/ 2675 XXV (1970).

100 Article 6 (1) of International Covenant on Civil and Political Rights, 1966 reads: ‘Every human being has the inherent right to life, this right shall be protected by law.’

20



violated the Rule 1101 of the customary international humanitarian law which prohibits any attack

on the civilians by the parties to the conflict. In the kassem case102, Israel’s military court at

Ramallah recognized the immunity of civilians from direct attacks as one of the basic rules of

international humanitarian law.

5 TO ORDER THE STATE OF DIKOUTI TO REFRAIN FROM ANY VIOLENT ACTIVITIES IN THE

STATE OF KHOMELIA

It is very much clear from the facts that the State of Dikouti responding to the plea of ICG

deployed its troops in the state of Khomelia without resorting to any peaceful talks 103. ICG while

conducting insurgent activities along with the Dikouti forces led to the killing of many

civilians.104

5.1 BREACH OF THE PRINCIPLE OF TERRITORIAL INTEGRITY

Every state shall refrain from any action aimed at the partial or total disruption of the national

unity and territorial integrity of any other state or country.105 In Lotus Case, the court observed

that the first and foremost restriction imposed by international law upon a state is that a state may

not exercise its power in any form in the territory of another state.106

101 JEAN-MARIE HENCKAERTS, BECK DOSWALD LOUISE, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: RULES, 1 (Cambridge University Press, Cambridge, 2006). Rule 1 reads: ‘The parties to the conflict must at all time distinguish between civilians and combatants. Attack may only be directed against combatants. Attack must not be directed against the civilians.’

102Kassem case, Military Court at Ramallah, Judgement at 806-811 (1969).

103Compromis, ¶ 18.

104Compromis, ¶ 19.

105 Friendly Declaration, Supra 8.

106S.S. Lotus Case (France v. Turkey), PCIJ Series A/No. 10 at 18 (1927).21



5.1.1 Article 5 of Declaration on the right to Development

The Declaration on the Right to Development107 adopted by the General Assembly in resolution

41/128 called in for states to take resolute action to eliminate ‘threats against national

sovereignty, national unity and territorial integrity.’

5.1.2 World Summit Outcome 2005

In this summit, the world leaders reaffirmed ‘to support all efforts to uphold the sovereign

equality of all states, [and] respect their territorial integrity and political independence.’108

5.2 FORCES OF DIKOUTI VIOLATED THE RESOLUTIONS OF GENERAL ASSEMBLY

Forces of Dikouti while supporting ICG and indulging in violent activities, acted in

contravention to the recognized principle of United Nations which prohibits the use of force by

one state in other’s territory.

5.2.1 Resolution 42/22 of the General Assembly

Every State has the duty to refrain from the threat or use of force against the territorial integrity

or political independence of any State. Such an action constitutes a violation of international law

and of the United Nations Charter and entails international responsibility. The principle of

refraining from the threat or use of force in international relations is universal in character.109

5.2.2 Forces of Dikouti violated the Manila Resolution

107UN GA Res. 41/128, UN Doc. A/RES/41/12b (1986).

108UN GA Res. 60/1 ¶ 5, UN Doc. No. A/RES/60/1 (2005).

109UN GA Res.42/22, UN Doc. S/RES/42/22 (1987).22



As per the Manila declaration110 all States shall refrain in their international relations from the

threat or use of force against the territorial integrity or political independence of any State.


INSURGENT GROUP

The principle of non intervention derives from customary international law. It would certainly

lose its effectiveness as a principle of law if intervention were to be justified by a mere request

for assistance made by an opposition group in another state. Unilateral interventions do not

receive the legitimate blessing provided in a multilateral setting, the international system has

looked upon such operations with extreme skepticism.111

6.1 FOREIGN STATES CAN AID THE GOVERNMENT, BUT NOT THE INSURGENTS

If Intervention at the request of the opposition was allowed, this would permit any state to

intervene at any moment in the internal affairs of another state. Such a situation does not

correspond to the present state of international law.112 Under customary international law foreign

states can give aid to a parent state, but not to insurgents therein.113

6.1.1 Obligation of states in event of Insurgency

110UN GA Res.37/10, UN Doc. S/RES/37/10 (1982).

111Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government. .BRITISH YEARBOOK OF INTERNATIONAL LAW 199 (1985).

112 Nicaragua Case, Supra 9.

113 J. W. Garner, Questions of International Law in the Spanish Civil War, 31 AMERICAN JOURNAL OF INTERNATIONAL LAW 66 (1937).

23



As far as Intervention or third-party assistance is concerned, ‘When a foreign state recognizes a

state of insurgency, it merely acknowledges the fact of the insurrection, but does not create any

new international status between it and the parties to the strife.’114 The states are barred from

providing direct assistance to such groups, the right to provide assistance as a non neutral

pertained only to aiding the incumbent government.115

6.1.2 Havana Convention on the Rights and Duties of States in the Event of Civil Strife

In the same regard, Article 1(3) of the Convention provides that states should forbid in supplying

arms or war materials with the only exception i.e. it is allowed when meant for the

government.116 So it can be very well deduced that assistance to the incumbent government is

permissible, not to the insurgent group.

6.2 AID PROVIDED IN SPANISH WAR

It is worth noting in this regard that In the Spanish Civil War, it was in accordance with

international law for France and Russia to aid the existing government. The aid given by Italy

and Germany to the insurgents was not in accordance with law of nations. The nonintervention

114 ANN V.W. THOMAS & A.J. THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICAS 216-17 (Southern Methodist University Press, Dallas, 1956).

115 ROSALYN HIGGINS, INTERNATIONAL LAW AND CIVIL CONFLICT, IN THE INTERNATIONAL REGULATION OF CIVIL WARS 170 (Thames and Hudson, London, 1972).

116 Article 3(1) of Havana Convention on the Rights and Duties of States in the Event of Civil Strife 1929, reads: ‘To .forbid the traffic in arms and war material, except when intended for the Government, while the belligerency of .the rebels has not been recognized, in which latter case the rules of neutrality shall be applied.’

24



policy of the United States was likewise in accordance with law, as aid to the legitimate

government is discretionary.117

Hence, Ex factis jus oritur, it is understood that the aid provided by the state of Dikouti to the

ICG is in contravention to International law and Dikouti should refrain from providing any

assistance.

117 P. C. JESSUP, A MODERN LAW OF NATIONS 54 (The Macmillian Company, New York, 1948).25



SUBMISSIONS TO THE COURT

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and authorities

cited, this Court may be pleased to adjudge and declare that:

1. Dikouti had violated the principle of non-interference of high value in International law

2. Deployment of Armed Forces violates the Treaty entered into by both the States

3. Deployment of armed forces by the State of Dikouti violates International law and

needed immediate cessation from the boundaries of Khomelia

4. The armed forces deployed by the state Dikouti indulged in the blatant violations of

various human rights of civilians

5. To order the State of Dikouti to refrain from any violent activities in the State of

Khomelia

6. To order the state of Dikouti not to lend any support to ICG, a violent insurgent group

Respectfully submitted on behalf of the Applicant,

Agents for the Applicant

XIIMEMORIAL ON BEHALF OF THE APPLICANT

applicant pn bhawati moot

Documents