IN THE INTERNATIONAL CRIMINAL COURT

THE HAGUE, THE NETHERLANDS

APPEALS CHAMBER

SITUATION IN ASTAFUR & BRAANOS

IN THE CASE OF

LEGAL REPRESENTATIVE FOR VICTIMES

ICC MOOT COURT COMPETITION

26 FEBRUARY 2015

45

MEMORIAL FOR THE PROSECUTION OF BRAANOS

Word Count:9995

1
Table of Contents
WRITTEN ARGUMENTS.........................................................................................................................2
1. WHETHER ASTRAFUR IS COMPETENT TO MAKE AN ARTICLE
(12)3DECLARATION,TRIGGERING THE JURISDICTION OF THE COURT OVER WAR CRIMES
COMMITTED IN PANTOS,DESPITE ITS LACK OF EFFEKTIVE CONTROL OVER THE
TERRITORIALITY OF PANTOS AT THE TIME OF SUBMISSION OF THE DECLARATION;.........2
TREATIES AND OTHER INTERNATIONAL AGREEMENTS..............................................................5
UN DOCUMENTS.....................................................................................................................................5
CASE-LAW................................................................................................................................................6
D.BOOKS & TREATISES..........................................................................................................................7
STATEMENT OF FACTS..........................................................................................................................8
Background.............................................................................................................................................8
Exposition Of Pertinent Facts..................................................................................................................8
ISSUES RAISED......................................................................................................................................11
SUMMARY OF ARGUMENTS...............................................................................................................12
WRITTEN ARGUMENTS.......................................................................................................................13
A-WHETHER ASTAFUR IS COMPETENT TO MAKE AN ARTICLE 12(3) DECLARATION
,TRIGGERING THE JUROISDICTION OF THE COURT OVER WAR CRIMES COMMITTED IN
PANTOS ,DESPITE ITS LACK OF EFFECTIVE CONTROL OVER THE TERRITORY OF PANTOS
AT THE TIME OF PANTOS AT THE TIME OF SUBMISSION OF THE DECLARATION................13
1.1.EFFECTIVE CONTROL OVER TERRITORY..................................................................................13
1.2- THE JURISDICTION OF SUBMISSION.........................................................................................16
Although the wording of the Conventions might not be precise as to what steps have to be taken, it
has been argued that it at least requires non-party states to make an effort not to block actions of ICC
in response to serious violations of those Conventions. in relation to co-operation in investigation
and evidence gathering, it is implied from the Rome Statute that the consent of a non-party state is a
prerequisite for ICC Prosecutor to conduct an investigation within its territory, and it seems that it is
even more necessary for him to observe any reasonable conditions raised by that state, since such
restrictions exist for states party to the Statute...................................................................................18
B-WHETHER THE COURT HAS JURISDICTION UNDER THE OBJECTIVE TERRITORIAL
PRINCIPLE OVER CRIMES COMMITES BY A NON-PARTY STATES(BRANOS)VIA CYBER
SPACE THA HAVE EFFECT IN STATE (ASTAFUR) THAT HAS LOGED AN ARTICLE 12(3)
DECLARATION.......................................................................................................................................19
1.1- AN OEVERVIEW OF CURRENT PROBLEMS IN CYBERCRIMES JURSISDICTION.............19

2
1.3.CYBER ATTACK AS A WAR CRIME.............................................................................................23
B-WHETHER THE WIDESPREAD DISRUPTION OF COMMUNICATION AND ELECTRICITY
DURING A REVOLT AGAINST THE GOVERNMENT OF ASTRAFUR VIA A DISTRIBUTED
DENIAL OF SERVICE ATTACK CONSTITUTES A WAR CRIME.....................................................24
1.1.THE DEFINITION OF INTERNATIONAL ARMED CONFLICT....................................................24
1.3. INTERNATIONAL ARMED CONFLICT........................................................................................29
D.WHETHER THERE MUST BE TWO DIFFERENT VICTIM’S LEGAL TEAMS UNDER
SEPARATE VICTIMS’ LEGAL REPRESENTATIVES IN THIS CASE BECAUSE ONE PORTION OF
THE VICTIMS SUPPORTED SECESSION AND THE OTHER FAVORED REMAINIG PART OF
ASTAFUR.................................................................................................................................................33
1.1THE RIGHT OF VICTIMES TO BE REPRESENTATIVE BEFORE THE COURT.........................33
1.2.THE SAME PURPOUSE THAT ALL VICTIMES HAVE.................................................................35
CONCLUDING SUBMISSIONS..............................................................................................................36

3
 ABBREVIATIONS

ECHR European Court of Human Rights

ECJ European Court of Justice

HRC Human Rights Committee

ICC International Criminal Court

ICC Statute Rome Statute of the International Criminal Court

ICJ International Court of Justice

ICLR International Criminal Law Review

ICRC International Committee of the Red Cross

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for Yugoslavia

UN United Nations

4
 INDEX OF AUTHORITIES

In order of appearance

TREATIES AND OTHER INTERNATIONAL AGREEMENTS

1. Rome Statute of the International Criminal Court (ICC Statute), 2187 UNTS 90
2. ICRC, AP to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, 1125U.N.T.S.3, 1977
3. Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95

UN DOCUMENTS
1. United Nations, Charter of the United Nations, 24 October 1945
2. P.Alston, Promotion and Protection of All Human Rights, Civil, Political, Economic,
Social and Cultural Rights, UN, HRC, A/HRC/11/2/Add.5, 28 May 2009
3. International Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-
232-2
4. Ad Hoc Committee on the Establishment of an ICC, Report of the Ad Hoc Committee,
delivered to the General Assembly,U.N.Doc.A/50/22

CASE-LAW
International Criminal Court

1. Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Statute on the
Investigation into the Situation in the Republic of Kenya, ICC-01/09-19 , Pre-Tr. Ch. II
2. Situation in the Côte d’Ivoire, Decision Pursuant to Article 15 of the Statute on the
Authorization of an Investigation into the Situation in the Republic of Côte d’Ivoire, Case
No. ICC-02/11, Pre-Tr. Ch. III

5
 3. The Prosecutor v. Gombo, et. al, Warrant of arrest for Jean-Pierre Bemba Gombo, Aimé
Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse
Arido, Case No. ICC-01/05-01/13-1-Red2, 28 November 2013

International Criminal Tribunal for the Former Yugoslavia

1. Prosecutor v. Duško Tadić, Decision of the Defence Motion on Interlocutory Appeal on

Jurisdiction, Case No. CC/PIO/021-E, Ap. Ch., 2 October 1995
2. Prosecutor v. Tadić, Opinion and Judgment, Case No.IT-94-1-T,Tr.Ch., 7 May 1997
3. Prosecutor v. Tadić, Judgment, Case No.IT-94-1-A,App.Ch., 15 July 1999

International Court of Justice

1. Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v. USA),
ICJ Rep.1986
2. Case Concerning the Armed Activities on the Territory of the Congo (DRC v. Uganda),
ICJ Rep. 2005
3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Rep.2004
4. Case Congo v. Belgium, ICJ Rep. 2002

European Court of Human Rights

1. Erdagöz v. Turkey, ECHR, Judgement of 22 October 1997, Application No.

127/1996/945/746
2. Elci and others v. Turkey, ECHR, Judgment of 13 November 2003, Application No
23145/93,25091/94

D.BOOKS & TREATISES

1. P.Alston, THE COMMISSION ON HUMAN RIGHTS IN THE UNITED NATIONS
AND HUMAN RIGHTS, 1992

6
2. H.Gasser, International Humanitarian Law: An Introduction, in HUMANITY FOR
ALL: THE INTERNATIONAL RED CROSS AND RED CRESCENT
MOVEMENT, Paul Haupt, 1993
3. L.Moir, THE LAW OF INTERNAL ARMED CONFLICT, Cambridge, 2002
4. Fleck, THE HANDBOOK OF HUMANITARIAN ARMED CONFLICTS, (1995)
5. E.Gadirov & R.Clark, Article 9 – Elements of Crimes, in O.Triffterer, ed., 2nd ed.,
COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT, 2008
6. G.Werle, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW, 1st ed.
(2005)W.Schabas, THE INTERNATIONAL CRIMINAL COURT: A
COMMENTARY ON THE ROME STATUTE (2010

7
 STATEMENT OF FACTS
Background
a) This case arises out of allegations of war crimes committed in the territory of the State of
Astafur by the Cyberwar Unit of the Braanos armed forces.
b) Braanos and Astafur are parties to the Vienna Convention on the Law of Treaties, the
International Covenant on Civil and Political Rights, the four Geneva Conventions of 1949
and the two Additional Protocols of 1977, as well as the Hague Convention of 1907.

Exposition Of Pertinent Facts

c) Most of the roughly 400,000 inhabitants of Pantos originally migrated there from Braanos,
and a majority of the Pantosian population speak Braan, the predominant language of
Braanos, rather than Astaf, the predominant language of Astafur. With the encouragement of
the government of Braanos, on March 15, 2014, the population of Pantos conducted a
plebiscite in which sixty percent of the voting age men and women supported severing
sovereign ties with Astafur and merging with Braanos.
d) After the plebiscite, Braanos announced that it would honor the wishes of the Pantosian
people and annex Pantos.. To that end, during the next thirty days Astafur sent an additional
10,000 troops to strengthen Camp Astaf and guard government buildings throughout the
Pantos region.
e) Only 20 States, all close trading partners and allies of Braanos, recognized the legitimacy of
the March 15, 2014 secession plebiscite. About the same number publicly declared their
nonrecognition.
f) The week after the plebiscite Braanos Pantosian protesters started occupying Hugo Park in the
center of Pantos. The protests were non-violent, and the protesters were mostly ordinary
Pantosian people. They protested against Astafur’s decision not to accept the results of the
plebiscite, even though it showed that a majority of the Pantosian people were in favor of a
merge with Braanos. Although the protests were peaceful, the Astafurian Government decided
that the protests had to be ended, and so the protesters were warned to leave. When they
refused, Astafurian police cleared the area with water cannons, rubber bullets and tear gas,
resulting in many injuries.
g) At 6:00 AM on April 20, 2014, all power went off and communications went down
throughout Pantos. Within hours, local paramilitary forces calling themselves the Pantosian

8
 Liberation Army (PLA), who were armed and funded by the government of Braanos,
launched a coordinated attack on the government institutions and the Astaf military base.
There was little resistance by the Astafur forces, who were without communication, rendering
them confused and disorganized.
h) On April 30, International Rights Watch, a highly respected NGO similar to Human Rights
Watch, published a report based on its investigation into the power and communications
disruption in Pantos
i) As a result of these attacks, the mobile phone network and internet connections throughout
Pantos were completely disrupted for four days, and the electrical power grid, airports, trains,
and the water supply were all shut down.

9
 ISSUES RAISED

I. Whether Astafur is competent to make an Article 12(3) Declaration, triggering the

jurisdiction of the Court over war crimes committed in Pantos, despite its lack of
effective control over the territory of Pantos at the time of submission of the Declaration;

II. Whether the Court has jurisdiction under the objective territorial principle over crimes
committed by a Non-Party State (Braanos) via cyberspace that have an effect in a
State(Astafur) that has lodged an Article 12(3) Declaration;

III. Whether the widespread disruption of communications and electricity during a revolt
against the government of Astafur via a Distributed Denial of Service attack constitutes a
war crime;

IV. Whether there must be two different victims’ legal teams under separate Victims’ Legal
Representatives in this case because one portion of the victims supported secession and
the other favored remaining part of Astafur.

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SUMMARY OF ARGUMENTS
I. Astafur is competent to make an Article 12(3) Declaration, triggering the
jurisdiction of the Court over war crimes committed in Pantos, despite its lack
of effective control over the territory of Pantos at the time of submission of
the Declaration because the importance of violence is the moment of attack,
when every possible control was under Astafurs hand.

II. The Court has jurisdiction under the objective territorial principle over crimes
committed by a Non-Party State (Braanos) via cyberspace that have an effect
in a State (Astafur) that has lodged an Article 12(3) Declaration.

III. The widespread disruption of communications and electricity during a revolt

against the government of Astafur via a Distributed Denial of Service attack
constitutes a war crime;

IV. There must be one victims legal Victims’ Legal Representative in this case
because their interests are the same and it’s the same and there is no conflict
of interest.

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 WRITTEN ARGUMENTS

A-WHETHER ASTAFUR IS COMPETENT TO MAKE AN ARTICLE 12(3)

DECLARATION ,TRIGGERING THE JUROISDICTION OF THE COURT OVER WAR
CRIMES COMMITTED IN PANTOS ,DESPITE ITS LACK OF EFFECTIVE
CONTROL OVER THE TERRITORY OF PANTOS AT THE TIME OF PANTOS AT
THE TIME OF SUBMISSION OF THE DECLARATION
Article 12 of the 1998 Statute of the International Criminal Court, dealing with the preconditions for the
actual exercise of criminal jurisdiction, is fundamental to an effective International Criminal Court.

1.1.EFFECTIVE CONTROL OVER TERRITORY

According to the fact about the jurisdiction and effective control that Astafur had on the time
when the attacks happened over the Territory of Pantos there are few arguments .First
argument is that Branos never claimed sovereignty over its occupied Astafur territories, so its
sovereignty is not affected by the existence of a Astafur state. The second contention is that
Branos itself has recognized the Astafur state till the Velvet Dissolution after the Federal State.
This Recognition is an act undertaken by states, so Branos have not mentioned anything
regarded Astafur as a state and in addition to this was the admitting of both states on UN .1

. A State has plenary jurisdiction over persons, property, and conduct occurring in its territory,
subject only to obligations or limitations imposed by international law. 2 This is the universally
accepted working rule in international criminal law and is found in bilateral extradition treaties
and multilateral conventions.3 In the case of non-State Parties, Article 12(3) follows them ILC
Draft, the Prep Com Draft Statute, band the Bureau Discussion Paper, and Proposa1. It provides
that if such a State's acceptance is required under the preceding paragraph, it may declare ad hoc
its acceptance with respect to the crime in question. Such a State is then obligated to cooperate

1
The case before ICC :situation on Astafur Para.2.
2
See, e.g., North Atlantic Status of Forces Agreement, 1951, 1953 Can. T. S. No. 13, and
the Agreement Concerning the Jurisdictional Immunities of U.N. Forces Between the United
Nations and Cyprus, 1964,492 U.N.T.S. 57.
3
Supra note 84. Furthermore, the international terrorism conventions oblige States Parties
to amend their domestic criminal law to provide for wide bases of jurisdiction over the offence,

12
with the ICC in accordance with Part 9 of the Statute. Thus, the Statute does not infringe upon
the sovereignty of non-Party States. It is in compliance with the customary and conventional
rules on the law of treaties. Writing in 1900, Georg Jellinek argued that a State must have three
elements: a territory, a population, and public authority. 4These three elements are similar to the
subsequently-codified Montevideo criteria,5and Jellinek’s elements remain influential in
positivist scholarship.6 A State comes into objective factual existence upon meeting the statehood
criteria, and its emergence is thereupon acknowledged by international law.7

It is also true that accepting that a State comes into existence objectively and automatically upon
meeting the Montevideo criteria necessitates accepting the including the presence of the offender
in its territory, and the obligation of aut dedere, judiciary, that is, to extradite or to submit the
case to a State's own authorities for the purposes of prosecution rather awkward proposition that
“a State exists in international law as soon as it exists.” 8 In response to such a circular
explanation, Lauterpacht argued that recognition was constitutive. 9In the absence of a central
authority for determining whether or not a certain entity is a State, this duty needs to be
performed by (existing) States.10 Once the statehood criteria are met, other States objectively
confirm this fact by granting recognition. 11 Assuming recognition is universally granted, there is
then no doubt that a new State has emerged. 12The state of (Astafur) was recognized by
international organizations which this state have applied (UN charters, Geneva Convention
,Vienna Convention on the Law of Treaties, etc.).If current States do not recognize the new
State, the old problem of the constitutive theory arises: how many and whose recognitions are

4
See GEORG JELLINEK, ALLGEMEINE STAATSLEHRE 137 (1905) (discussing the three elements of the State
5
See supra note 2 and accompanying text.
6
STEFAN TALMON, KOLLEKTIVE NICHTANERKENNUNG ILLEGALER STAATEN [COLLECTIVE NON-
RECOGNITION OF ILLEGAL STATES] 222 (2004) (Ger.) (arguing that States become States by meeting
Jellinek’s three elements).
7
See id.; Montevideo Convention, supra note 2.
8
LAUTERPACHT, supra note 26, at 58.
9
See id. at 55–58 (setting out the arguments in favor of constitutive recognition).
10
See id.
11
See id.
12
See id. at 65–66 (arguing that compulsory recognition would end any doubt pertaining to the entity’s legal status).

13
necessary to create the objective legal fact that a new State exists? 13The underlying idea behind
the concept is that an illegally created entity cannot become a State 14The additional legality-
based statehood criteria assert that a State cannot be created through the use of illegal force,
violating the right of self-determination, or the pursuance of racist policies. 15 The legal norms
underlying the concept of additional statehood criteria are often considered to be of jus cogens
character16, and therefore, a State creation in violation of jus cogens would be illegal. 17 Article
2(4) of the U.N. Charter and liberates the principle from the context of the use of force.
Nevertheless, the concept of territorial integrity remains confined to relations between States.18

We only have states which have become independent in accordance with the constitution of
states but in our case the secession is in contrary with Astafur constitution. In the case of the
plebiscite this action was contrary with the constitution of the Astafur. South Sudan is another
recent example of secession based on a constitutional mechanism. Sudan became an independent
State in 1956.19 Article 41 of the Act specified the referendum rules and made specific provisions
for the required quorum,20 as well as the winning majority. 21 Article 66 of the Act specified that
the decision taken at the referendum would be binding, 22 and Article 67 specified that in the case
of Southern Sudan’s vote for secession, the government would apply the constitutional

13
See id. At 66 (arguing that compulsory recognition would end any doubt pertaining to the entity’s legal status).
14
See McCorquodale, supra note 5, at 191.
15
See id. at 196–97.
16
See CRAWFORD, supra note 4, at 105 (arguing that the norms underlying the concept of the additional statehood
criteria are of jus cogens character) .
17
Id.; see also DUGARD, supra note 37, at 135–37, 152–61 (providing a detailed account on jus cogens norms that
underlie the illegality of State creation). Jus cogens is, in principle, defined as a norm of general international law
from which no derogation is allowed. See Vienna Convention on the Law of Treaties art. 51, 1155 U.N.T.S. 331, 8
I.L.M. 679
18
See Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 126
19
See Background to Sudan’s Comprehensive Peace Agreement, U.N. MISSION SUDAN,
http://unmis.unmissions.org/Default.aspx?tabid=515 (last visited Nov. 21, 2012).
20
Southern Sudan Referendum Act 2009, at41(2)
21
Id. art. 41(3).
22
Id. art. 66.

14
provisions that foresaw Southern Sudan’s withdrawal from the Sudanese institutional
arrangement.23

1.2- THE JURISDICTION OF SUBMISSION

Despite the fact the court have jurisdiction that neither Astastafur and Branos are not part of the
24
Statute of ICC they have the right to make an Article12(3) Declaration If the acceptance of a
State which is not a Party to this Statute is required under paragraph 2, that State may, by
declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with
respect to the crime in question. In this situations where neither the relevant territorial State nor
the relevant nationality State is a Party to the Statute, and where the UNSC does not refer the
situation to the Prosecutor the ICC may still exercise jurisdiction provided the territorial State
and/or the nationality State (being a non-State Party) on an ad hoc basis accepts the exercise of
jurisdiction of the ICC. If we would refer to the interpretation of Article 12(3) the wording ‘the
crime in question’ must furthermore be interpreted in accordance with Rule 44 25. Accordingly
the ‘article 12(3)-declaration’ made by a non-State Party implies the ‘acceptance of jurisdiction
with respect to the crimes referred to in article 5 of relevance to the situation rather than
individual crimes or specific incidents 26 As an example, the Republic of Côte d’Ivoire, while not
being a party to the Rome Statute, accepted the exercise of jurisdiction by the Court regarding
crimes committed on its territory since the events of 19 September 2002 27 .A similar declaration,
extending the temporal jurisdiction back to the time of the entry into force of the Statute, was
made by the Ugandan government in December 200328  as well as by the government of the
Democratic Republic of the Congo.Article 12/3 moreover provides the possibility for States to
extend the ratione temporis jurisdiction (the jurisdiction of a court of law over a proposed action
in relation to the passage of time) of the Court. Article 12/3 accepts jurisdiction for acts

23
art. 67(2).
24
Apeal from the Pre-trialChamber’s Decision on Jurisdiction and Assignment of Victims Counsel,para 11.
25
http://www.iclklamberg.com/Rules.htm#Rule_44
26
Carsten Stahn et al, pp. 427–28, Hans-Peter Kaul, p. 611
27
Press release of 15 February 2005,Declaration under article 12-3 of the Rome Statute, 18 April 2003 and Situation
in the Republic of Côte d'Ivoire, 3 October 2011, para. 10.
28
See letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in Uganda to Pre-
Trial Chamber II, 5 July 2004

15
committed prior to ratification but after the entry into force of the Statute. However, it is likely
that the Court may also consider facts that occurred prior to the time specified in an Article 12/3
declaration for the purpose of securing evidence or uncovering acts of a continuing nature
provided that these facts are linked to events that occurred after that time 29.

The Resolution’s operative paragraphs, however, created a situation in which the FRY exercised
no sovereign powers in Kosovo. In our case the State of Branos does not exercise sovereign
power over Pantos which doesn’t not allows the state of Branos to take it as it’s territory. There
is evidence in case of Kosovo which declared independence with the prior approval of a number
of States who had also promised recognition in advance. 30 When Kosovo declared independence
on February 17, 2008, the act had significant international support. 31 The competing claim to
territorial integrity continues to apply,32 however, so it is questionable whether the emergence of
the State of Kosovo is a new legal fact. Furthermore, it may well be that recognition actually
created the ambiguity with regard to Kosovo’s legal status. .33The holding in the Quebec case
also implies that under some circumstances the emergence of a new State may actually depend
on recognition. Recognition may create a new State.34

Is this figure widespread enough to be able to claim that state of Branos controlling Pantos has
emerged as a State on the basis of international recognition? The answer is no for two main
points as I mentioned before: for acting in contrary over the constitution of the Astafur in the
point of plebiscite, territorial effective control which Asafur have over the Pantos and non
recognition by a majority of states. Clearly, the defined territory of Branos exists physically, but
it is debated whether is this state under international law. Even if the territory is defined and has
a permanent population that is represented by a government with the capacity to enter into
relations with other States, it is unclear whether that territory forms a separate State or is a part of

29
Carsten Stahn, p. 429–3

30
Dan Bilefski, U.S. and Germany Plan to Recognize Kosovo, N.Y. TIMES, Jan. 11, 2008, at A9
31
Bilefski, supra note 292.
32
See U.N. SCOR, 63d Sess., 5839th mtg. at 5, U.N. Doc. S/PV.5839 (Feb. 18, 2008)
33
Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, art. 41, U.N. Doc.
A/RES/56/83/Annex (Dec. 12, 2001)
34
Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 155 (Can.).

16
a larger State. Determining whether a certain territory is a separate State is dependent upon its
legal status. Statehood thus needs to be understood as legal status and not as an objective natural
fact.

1.3- COOPEATION BY STATES NOT-PARTY TO ROME STATUTE

Although the wording of the Conventions might not be precise as to what steps have to be taken,
it has been argued that it at least requires non-party states to make an effort not to block actions
of ICC in response to serious violations of those Conventions.35 in relation to co-operation in
investigation and evidence gathering, it is implied from the Rome Statute 36 that the consent of a
non-party state is a prerequisite for ICC Prosecutor to conduct an investigation within its
territory, and it seems that it is even more necessary for him to observe any reasonable
conditions raised by that state, since such restrictions exist for states party to the Statute37.
Taking into account the experience of the ICTY (which worked with the principle of the
primacy, instead of complementarily) in relation to co-operation, some scholars have expressed
their pessimism as to the possibility of ICC to obtain co-operation of non-party states.

35
Zhu, Wenqi (2006). "On Co-Operation by States Not Party to the International Criminal Court" ,International
Review of the Red Cross (International Committee of the Red Cross) (861): 87–110.
36
Article 99 of t he Rome Statute. Retrieved 30 October 2008
37
Zhu, Wenqi (2006). "On Co-Operation by States Not Party to the International Criminal Court" , International
Review of the Red Cross (International Committee of the Red Cross) (861): 87–110

17
B-WHETHER THE COURT HAS JURISDICTION UNDER THE OBJECTIVE
TERRITORIAL PRINCIPLE OVER CRIMES COMMITES BY A NON-PARTY
STATES(BRANOS)VIA CYBER SPACE THA HAVE EFFECT IN STATE (ASTAFUR)
THAT HAS LOGED AN ARTICLE 12(3) DECLARATION

1.1- AN OEVERVIEW OF CURRENT PROBLEMS IN CYBERCRIMES

JURSISDICTION

This legal discordance, led states to develop their own course of action. Some countries pursued
rather un orthodox methods of prosecution and enforcement to overcome jurisdiction barriers
when encountered by cybercrimes committed beyond their borders. In the very famous case of
Alexey Ivanov and Vasiliy Gorshkov, the two Russian hackers who had been alleged extorting
money from several U.S. companies, the FBI used a ground-breaking methodology. In
November 2000, the federal agents, hiding their true identity under the guise of businessmen,
enticed the two Russian hackers to come to Seattle by offering them a job interview for positions
in a network security company. The agents then asked the Russian duo to demonstrate their skills
on computers readily infected by spyware and eventually ‘hacked’ the passwords Ivanov and
Gorshkov used to access their own computers. Later the agents got into the computers of
hackers, which were located in Russia and copied their contents to preserve evidence and pressed
charges based on this evidence.38Furthermore, the U.S. Court that found Ivanov and Gorshkov
guilty claimed that Russian law was not violated. 39 Consequently, Russian authorities and many
others claimed that the evidence was obtained illegally and more importantly they claimed that
the act was in violation of traditional jurisdictional boundaries.40 Moreover, Russian authorities
38
Brenner, Susan W.; Koops, Bert-Jaap; ‘Approaches to Cybercrime Jurisdiction’, Journal of High Technology Law
2004, p. 21-22
39
Koops & Brenner; ‘Cybercrime and Jurisdiction’, p. 322
Id. p. 323
40
Id. p. 323

18
expressed their opposition to such usage of jurisdictive power by filing charges, against the FBI
agents for hacking in Russia41; which actually is another jurisdictional question in itself. Even
though this action may be deemed as symbolical; it is not. Recalling that state practice is a source
of international law42, dissent is a very important tool in preventing unapproved practices of other
states from turning into customary international rules .Beyond the international law related
problems created by such an approach, it also has implications on individuals; that if such
approach is commonly adopted, then “citizens abiding by the laws of their country can find
themselves subject to prosecution in another country under its different laws”.43 In the example
of Ivanov and Gorshkov, the crime in question is hacking or in other words an unauthorized
access to a computer system and altering data therein, which is a crime recognized under both
American and Russian law. However there is no global consensus on what actions taking place
within the Cyberspace shall be criminalized and it is hard to imagine what would have happened
if the alleged act was only defined as a crime under United States laws. On the other hand, when
conventional jurisdiction theories and principles are fully applied to cybercrimes, either of the
two is likely to happen in the case of a transboundary cybercrime:

1-the state(s) that can and should claim jurisdiction may not exercise its power

2- a state that should not have asserted jurisdiction may do so based on a fictitious link and start
prosecution.

The former may be caused by the lack of resources, legislation or if nothing else by lack of will
to prosecute;44 mostly resulting in cybercrimes going unpunished and encouraging
cybercriminals to continue their ill deeds. For instance, in several nations of Africa and the
Caribbean, cybercrime have not yet been criminalized at all and some countries that have
criminalized cybercrimes lack the technical capability of tracking down suspects or gathering
evidence.45 Another possibility is that, even when more than one country can claim jurisdiction,
none may do so; “thinking that surely other countries will have suffered more damage and

41
Brenner & Koops; ‘Approaches to Cybercrime Ju risdiction’, p. 22
42
The Statue of International Court of Justice, June 26, 1945, art. 38, 59 Stat. 1055, 1060.
43
Goodman & Brenner; p.54
44
Koops & Brenner; ‘Jurisdiction and Cybercrime’, p.2
45
Goodman & Brenner; p.83

19
hence will have priority in prosecuting”.46 The latter appears to be a consequence of using
inadequate jurisdictional laws and theories and causes the accused to be trialed in the wrong
country, under wrong laws; which again defies the fundamental principles of criminal law and
criminal procedure law and transgresses real and legal persons rights alike. A notable example of
this is the incident of CompuServe47; in which German prosecutors charged Felix Somm, the
executive manager of CompuServe Corp.’s Germany operations, whose company was accused as
an accessory of dissemination of child pornography and extremist materials. Prosecutors claimed
that his company should have blocked access to the objectionable material.

1.2 .THE PRINCIPLE OF TERRITORIALITY

Territoriality is still the most important and widely applied principle in terms of jurisdiction. In
fact in several countries including the USA there is a general presumption against
extraterritoriality; meaning that normally national laws of a state only applies within the
territorial jurisdiction of that state.48 Territoriality principle can be broken down into several
elements related with locality. These can be; location of acts, location of tools, location of
persons, location of the result or location of basically anything that has relevance with the
crime.49

Some scholars tend to break down territoriality principle into two different theories; as
subjective territoriality and objective territoriality and this distinction bears

46
Brenner & Koops; ‘Approaches to Cybercrime Jurisdiction’, p.3
47
CompuServe Corp. is a company based in Columbus, Ohio in USA and an Internet Service Provider. It was the
first major commercial online service in the United States of America. The company currently operates as a
subsidiary of AOL.
48
Proskauer Ch. 25 II ‘The Presumption Against Extraterriotial Application of US Law’
http://www.proskauerguide.com/law_topics/25/II [Last visited: 30.06.2012]
49
Koops & Brenner, ‘Cybercrime and Jurisdiction’, p.5

20
significance.50Subjective territoriality can be formulated as follows: if a criminal act is
committed within the physical borders of a state that state can claim jurisdiction.51

a) Subjective Territoriality Principle.

Subjective Territoriality is the more well-known of the two as it is the more commonly
accepted principle and there is little discussion regarding the application of this principle.

b)The Scope of the Objective Territorial Principle

Objective territoriality, on the other hand, is a theory that focuses on the location of results and is
at least as important as the former when it comes to cybercrimes. This principle can be “invoked
where the action takes place outside the territory of the forum state, but the primary effect of that
activity is within the forum state.”52According to The Restatement of Foreign Relations Law, a
state can use objective territoriality when a “conduct outside its territory that has or is intended
to have substantial effect within its territory”.53Objective territoriality is not a ‘territorial’ theory
per se and has obvious connections with passive personality principle. 54 The most basic example
given for this situation is a man standing in the territory of country X and shooting at someone
standing inside the territory of country Y with a gun. As for cybercrime though, application of
this principle creates a major problem, previously mentioned in Introduction section; namely the
problem is “that lawful behavior in the domestic jurisdiction may be categorized as criminal in
a recipient jurisdiction”55Furthermore, deciding on location of anything requires meticulous
investigation since cybercrimes manifest themselves at multiple locations, virtually at the same
time

The Lotus case was a key court ruling on the territoriality principle. In 1926, a French vessel
collided with a Turkish vessel, causing the death of several Turkish nationals. The Permanent
Court of International Justice ruled that Turkey had jurisdiction to try the French naval lieutenant
50
Menthe, Darrel; ‘Jurisdiction in Cyberspace: A Theory of International Spaces’, MICH. TELECOMM. TECH. L.
REV.69 (1998); at paragraph 6. Available at <http://www.mttlr.org/volfour/menthe_art.html>
51
Id.
52
Id.
53
Restatement §402
54
See: Chapter 2 Section 5.1.
55
See: Chapter 2 Section 5.1.

21
for criminal negligence, even though the incident happened beyond Turkey's boundaries. This
case extended the territoriality principle to cover cases that happen outside a state's boundaries,
but have a substantial effect on the state's interests or involve its citizens. The S.S. Lotus case
was a key court ruling on the territoriality principle. In 1926, a French vessel collided with a
Turkish vessel, causing the death of several Turkish nationals. The Permanent Court of
International Justice ruled that Turkey had jurisdiction to try the French naval lieutenant for
criminal negligence, even though the incident happened beyond Turkey's boundaries. This case
extended the territoriality principle to cover cases that happen outside a state's boundaries, but
have a substantial effect on the state's interests or involve its citizens.
From the Lotus case:"All that can be required of a State is that it should not overstep the limits
which international law places upon its jurisdiction. The territoriality of criminal law, therefore,
is not an absolute principle of international law and by no means coincides with territorial
sovereignty".

1.3.CYBER ATTACK AS A WAR CRIME

Cyber warfare means methods of warfare that consist of cyber operations amounting to, or
conducted in the context of, an armed conflict, within the meaning of international humanitarian
law (IHL). IHL does not apply to every kind of activity called "cyber attacks" in common
parlance. Electricity and medical care may be deprived when networks or computers of a state
are attacked. Allso the basic essential such s drinking water can be deprived. Cyber attacks
could interfere with rescue services that save lives or disrupt vital infrastructure such as dams,
nuclear plants and aircraft control systems. The well-being, health and even lives of hundreds of
thousands of people could be affected. One of the ICRC’s roles is to remind all parties to a
conflict that constant care must be taken to spare civilians: wars have rules and limits that apply
to all means and methods of warfare.

In the case of Estonia In a matter of days the cyber attacks brought down most critical websites,
causing widespread social unrest and rioting, which left 150 people injured and one Russian
national dead56 Indeed, the attacks were so widespread and the results so grave that Aaviksoo

56
Putin Warns Against Belittling War Effort, RADIO FREE EUROPE, May 9, 2007,
http://www.rferl.org/featuresarticle/2007/05/704c2d80-9c47-4151 -ab76-b140457a85d3.html.

22
considered invoking Article 5 of the North Atlantic Treaty Organization ("NATO"), which states
that an assault on one allied country obligates the alliance to attack the aggressor.57

As with nuclear radiation, cyber war can destroy a modem state without drawing blood.58but in
our case the cyber attack indirectly cause deaths by this state-sponsored attacks59

B-WHETHER THE WIDESPREAD DISRUPTION OF COMMUNICATION AND

ELECTRICITY DURING A REVOLT AGAINST THE GOVERNMENT OF ASTRAFUR
VIA A DISTRIBUTED DENIAL OF SERVICE ATTACK CONSTITUTES A WAR
CRIME

1.1.THE DEFINITION OF INTERNATIONAL ARMED CONFLICT

“It is indisputable that an armed conflict is international if it takes place between two or more
States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it
may become international (or, depending upon the circumstances, be international in character

57
Davis, supra note 1; North Atlantic Treaty art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S.243.

58
Kevin Poulsen, 'Cyberwar' and Estonia's Panic Attack, WIRED, Aug. 22,
2007,http://blog.wired.com/27bstroke6/2007/08/cyber-war-and-e.html.

59
See e.g., Susan W. Brenner, Toward a Criminal Law of Cyberspace: Distributed Security,10 B.U. J. SCI. &
TECH. L. 1 (2004) See generally Daniel M. Creekman, A Helpless America? An Examination of the Legal Options
Available to the United States in Response to Varying Types of Cyber-Attacks from China, 17 AM. U. INT'L L.
REV. 641 (2002); Reuven Young,Defining Terrorism: The Evolution of Terrorism as a Legal Concept in
International Law and Its Influence on Definitions in Domestic Legislation, 29 B.C. INT'L & COMP. L. REV. 23,
91, 100 (2006) (defining international terrorism by using cyber attacks as an example).

23
 60
alongside an internal armed conflict) if some of the participants in the internal armed conflict
act on behalf of that other State61

Also on the Article 2 to the Geneva Conventions of 1949 states that:

"In addition to the provisions which shall be implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is not recognized by one of
them.

No formal declaration of war or recognition of the situation is required. The existence of an IAC,
and as a consequence, the possibility to apply International Humanitarian Law to this situation,
depends on what actually happens on the ground. It is based on factual conditions. For example,
there may be an IAC, even though one of the belligerents does not recognize the government of
the adverse party.62

Even by relying to the doctrine that gives useful comments concerning the definition of an
international armed conflict the conflict between Astrafur and Braanos is an IAC. The
applicability of the Geneva Conventions between the two States. It is also of no concern whether
or not the party attacked resists. As soon as the armed forces of one State find themselves with
wounded or surrendering members of the armed forces or civilians of another State on their
hands, as soon as they detain prisoners or have actual control over a part of the territory of the
enemy State, then they must comply with the relevant convention". 63

In this case Astrafur is the state engaged in regular and intense fighting with an organized armed
group, and according to the Article 8(a), of the Statute of Rome violations of the laws within the
established framework of international law, by intentionally directing attacks against the civilian

60
Tadic, (Appeals Chamber), July 15, 1999, para. 84:
61
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 66 (quoting same)
62
"It is irrelevant to the validity of international humanitarian law whether the States and Governments
involved in the conflict recognize each other as States": Joint Services Regulations (ZDv) 15/2, in: D.
63
H.P. Gasser, International Humanitarian Law: an Introduction, in: Humanity for All: the International
Red Cross and Red Crescent Movement, H. Haug (ed.), Paul Haupt Publishers, Berne, 1993, p. 510-
511.

24
population as such or against individual civilians not taking direct part in hostilities where
objects are not military objectives.

“It is accepted that attacks aimed at military objectives, including objects and combatants, may
cause ‘collateral civilian damage.’ International customary law recognizes that in the conduct of
military operations during armed conflicts a distinction must be drawn at all times between
persons actively taking part in the hostilities and civilian population and provides that

- the civilian populations as such shall not be the object of military operations, and

- every effort be made to spare the civilian populations from the ravages of war, and

- all necessary precautions should be taken to avoid injury, loss or damage to the civilian
population.

Nevertheless, international customary law recognises that this does not imply that collateral
damage is unlawful . “The practical application of the principle of distinction requires that those
who plan or launch an attack take all feasible precautions to verify that the objectives attacked
are neither civilians nor civilian objects, so as to spare civilians as much as possible. Once the
military character of a target has been ascertained, commanders must consider whether striking
this target is ‘expected to cause incidental loss of life, injury to civilians, damage to civilian
objectives or a combination thereof, which would be excessive in relation to the concrete and
direct military advantage anticipated.’ If such casualties are expected to result, the attack should
not be pursued.64 The basic obligation to spare civilians and civilian objects as much as possible
must guide the attacking party when considering the proportionality of an attack.

1.2. THE PRINCIPLE OF DISTINCTION BETWEEN CIVILIAS AND COMBATANS

Based on international rules we see that the attacks over the civilian are prohibited .Rule 1 to the
ICRC states that the conflict between two parties must at all times distinguish between civilians
and combatants. I these case the attacks may only be directed against combatants. Attacks must
not be directed against civilians. If we would be bead on the case we can see that the state of
Braanos didn’t take on consideration the fact that this action would damage the population. The
64
Galic, (Trial Chamber), December 5, 2003, para. 58

25
priority of these actions taken by the Braanos government were to eliminate the military troops
of Astafur based on the Pantos territory.65

They reached their goal because were unprepared by the electric cut and without communication
and the consequences of this act were the cause of deaths. Also another argument is the
Diplomatic Conference, the United Kingdom stated that Article 51(2) was a “valuable
reaffirmation” of an existing rule of customary international law66 In addition, under the Statute
of the International Criminal Court, “intentionally directing attacks against the civilian
population as such or against individual civilians not taking direct part in hostilities” constitutes a
war crime in international armed conflict 67Numerous military manuals, including those of States
not, or not at the time, party to Additional Protocol I, stipulate that a distinction must be made
between civilians and combatants and that it is prohibited to direct attacks against civilians. 

In the Kassem case in 1969, Israel’s Military Court at Ramallah recognized the immunity of
civilians from direct attack as one of the basic rules of international humanitarian law.68  There
are, moreover, many official statements which invoke the rule, including by States, or not at the
time, party to Additional Protocol I.69 The rule has also been invoked by parties to Additional
Protocol I against non-parties.70  When the ICRC appealed to the parties to the conflict in the
Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the
distinction between combatants and civilians, the States concerned (Egypt, Iraq, Israel and Syria)
replied favorably.71

65
Situation in Astafur ,International Criminal Court ,Moot Court Competion, para.9
66
United Kingdom, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols
(ibid., §§ 319, 537 and 803).
67
ICC Statute, Article 8(2)(b)(i) (ibid., § 160).
68
Israel, Military Court at Ramallah, Kassem case (ibid., § 271)
69
See, e.g., the statements of Germany vis-à-vis Turkey (ibid., § 292) and Iraq (ibid., § 293), of Lebanon (ibid.,
§ 304) and Pakistan (ibid., § 312) vis-à-vis Israel, and of Spain vis-à-vis Iran and Iraq (ibid., § 315).
70
ee the statements of Ecuador (ibid., § 39), Egypt (ibid., §§ 40 and 283), India (ibid., § 42), Japan (ibid., § 43),
Netherlands (ibid., § 309), New Zealand (ibid., § 45), Solomon Islands (ibid., § 48), Sweden (ibid., § 316), United
Kingdom (ibid., §§ 50 and 321) and United States (ibid., § 329).
71
See ICRC, The International Committee’s Action in the Middle East (ibid., § 445)

26
“The civilian population as such shall not be the object of attack 72. This fundamental principle of
international customary law is specified in Articles 51(2), and 51(3) of Additional

Protocol I. Article 50(1) of Additional Protocol I states that a civilian is any person who does not
belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the
Third Geneva Convention and in Article 43 of this Protocol. ”

No military necessity justification for attacking civilians or civilians objects

The Appeals Chamber clarifies that the prohibition against attacking civilians and civilian
objects may not be derogated from because of military necessity. 73The Appeals Chamber deems
it necessary to rectify the Trial Chamber’s statement, contained in paragraph 180 of the

Trial Judgment, according to which ‘targeting civilians or civilian property is a offence when not
justified by military necessity.74’ The Appeals Chamber underscores that there is an absolute
prohibition on the targeting of civilians in customary international law.”

“The Appeals Chamber recently clarified some of the jurisprudence relating to the various
elements of the crime. First, the Appeals Chamber rejected any exemption on the grounds of
military necessity and underscored that there is an absolute prohibition on the targeting of
civilians and civilian objects in customary international law.75 In the Blaskic case the Trial

Chamber observed in relation to the actus reus [of the offense of attack on civilians that‘the
attack must have caused deaths and /or serious bodily injury within the civilian population or
76
damage to civilian property. Targeting civilians or civilian property is an offence when not
justified by military necessity. The Trial Chamber does not however subscribe to the view that
the prohibited conduct set out in the first part of Article 51(2) of Additional Protocol I is
adequately described as ‘targeting civilians when not justified by military necessity.’ This
provision states in clear language that civilians and the civilian population as such should not be

72
Kordic and Cerkez, (Appeals Chamber), December 17, 2004, para. 48:
73
Ibid, para. 54
74
Blaskic (Appeals Chamber), July 29, 2004, para. 109:
75
Strugar, (Trial Chamber), January 31, 2005, para. 280:
76
Galic, (Trial Chamber), December 5, 2003, paras. 42-45

27
the object of attack. It does not mention any exceptions. In particular, it does not contemplate
derogating from this rule by invoking military necessity.”

“The Trial Chamber recalls that the provision in question explicitly confirms the customary rule
that civilians must enjoy general protection against the danger arising from hostilities. The
prohibition against attacking civilians stems from a fundamental principle of international
humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all
times between the civilian population and combatants and between civilian objects and military
objectives and accordingly to direct their operations only against military objectives.”

1.3. INTERNATIONAL ARMED CONFLICT

The Rome Statute framework does not define an “international armed conflict”. Relying on
Common Article 2 of the Geneva Conventions, the International Committee of the Red Cross
(“ICRC”) Commentary there to, and the ICTY Tadić Appeals Judgment, Pre-Trial Chamber I
determined that an armed conflict is international:
If it takes place between two or more States; this extends to the partial or total occupation of the
territory of another State, whether or not the said occupation meets with armed resistance. In
addition an internal armed conflict that breaks out on the territory of a State may become
international – or depending upon the circumstances, be international in character alongside an
internal armed conflict – if another State intervenes in that conflict through its troops (direct
intervention), or if some of the participants in the internal armed conflict act on behalf of that
other State (indirect intervention). 77 I’m mentioning the word “states” because the Pantos
Liberation Army which took the control of the Pantos territory was controlled and funded by the
Branos government.78

77
ICC-01/04-01/06-803-tEN, para. 209. See also ICC-01/05-01/08-424, paras 220-223. See Tadić Interlocutory
Appeal Decision, para. 70 (cited above). See also ICTY, Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial
Chamber, Judgment, 16 November 1998, para. 183 and ICTY, Prosecutor v. Brnanin, Case No. IT-99-36-T, Trial
Chamber, Judgment, 1 September 2004, para. 122.

78
Situation in Astafur ,International Criminal Court ,Moot Court Competion, para.9

28
Overall control test satisfied where a state has a role in organizing, coordinating or planning the
military actions of the military group, in addition to financing, training and equipping or
79
providing operational support “The Tadic Appeal Judgment addressed in detail the
circumstances under which armed forces may be regarded as acting on behalf of a foreign state,
thereby rendering the armed conflict international.

“The Tadic Appeal Judgment initially held that: [one] should distinguish the situation of
individuals acting on behalf of a State without specific instructions, from that of individuals
making up an organized and hierarchically structured group, such as a military unit or, in case of
war or civil strife, armed bands of irregulars or rebels. Plainly, an organized group differs from
an individual in that the former normally has a structure, a chain of command and a set of rules
as well as the outward symbols of authority. Normally a member of the group does not act on his
own but conforms to the standards prevailing in the group and is subject to the authority of the
head of the group. Consequently, for the attribution to a State of acts of these groups it is
sufficient to require that the group as a whole be under the overall control of the State. The
Appeals Chamber agrees with this analysis.”

“The control required by international law may be deemed to exist when a State (or, in the
context of an armed conflict, the Party to the conflict) has a role in organizing, coordinating or
planning the military actions of the military group, in addition to financing, training and
equipping or providing operational support to that group. These two elements must both be
satisfied.”80 “The Appeals Chamber recalls that the Tadic Appeal Decision on Jurisdiction
explained that ‘the very nature of the Geneva Conventions – particularly [Geneva] Conventions
III and IV – dictates their application throughout the territories of the parties to the conflict; any
other construction would substantially defeat their purpose.’ It further held that in the case of an
armed conflict, until a peaceful settlement is achieved, ‘international humanitarian law continues
to apply in the whole territory of the warring

The Chamber also notes common article 2(1) of the 1949 Geneva Conventions,

79
Kordic and Cerkez, (Appeals Chamber), December 17, 2004, paras. 306, 308:
80
Brdjanin, (Trial Chamber), September 1, 2004, para. 124:

29
which stipulates that the present Convention shall apply to all cases of declared war or of any
other armed conflict which may arise between two or more of the High Contracting Parties, even
if the state of war is not recognized by one of them. The Convention shall also apply to all cases
of partial or total occupation of the territory of a High Contracting Party, even if the said
occupation meets with no armed resistance.

Concerning the concept of international armed conflict, the International Committee of the Red
Cross (ICRC) commentary on common article 2 of the 1949 Geneva Conventions adds any
difference arising between two States and leading to the intervention of members of the armed
forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the
existence of a state of war. It makes no difference how long the conflict lasts, or how much
slaughter takes place. The respect due to the human person as such is not measured by the
number of victims.81

Therefore the Chamber concludes that an international armed conflict exists in case of armed
hostilities between States through their respective armed forces or other actors acting on behalf
of the State.

1.4. ELEMENTS OF WAR CRIME BASED ON THE TERMINATION OF POWER AND

COMMUNICATION CONSIST CRIMES

Cyber War Units ,launched a coordinated helped the PLA to attack on the government
institutions and the Astafur military base in the territory of Pantos .This attack happened after
the time when the power went off and communications went down and, this consists in
applicability of Elements of Crimes.
The action of occupation which this army wanted was coordinated and attacked the Astafur
military troops in unfaithfulness. Such person or persons were either hors de combat, or were
civilians. Including the circumstances that the Cyber War Units were prepared with the
interruption of electricity and communication without taking into the consideration the effect,
Astafur forces had a little opportunity for resistance to protect the civilians as much as to prevent
the institutions.
81
J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, 12 August 1949, (ICRC, 1958), p. 20. The convention mentioned is further referred to as the "Fourth Geneva
Convention", see UNTS, vol. 75, p. 287.

30
This conflict caused many injuries and deaths Based on the International Rights Watch Report 90
PLA members killed, 100 injured,190 Astafurian military personnel killed, 200 injured. 30
Astafurian police killed, 50 injured ,7000 plus civilians killed, 3,000 injured. About one-third of
the casualties were under the age of 1882

Based on the Published report based on its investigations the highly Respected NGO we see that
we have a disastrous number of victims. But can be this NGO report an evidence for the Court ?
This report can be based on point that Prosecutor or the Trial Chamber may call any witness
whose statement has been submitted to the confirming judge. Hearings were held with Human
Rights Watch on 27 June to 5 July 1996.83
Although this is not a form of amicus curiae participation, it can be observed that Article 18 of
the Statute of the Tribunal states that: ‘The Prosecutor shall initiate investigations ex officio or
on the basis of information obtained from any source, particularly from Governments, United
Nations organs, intergovernmental and non-governmental organizations.’ 84Also the prosecutor
shall consider whether the information available to the Prosecutor provides a reasonable basis to
believe that a crime within the jurisdiction of the Court has been or is being committed.85

82
Situation in Astafur ,International Criminal Court ,Moot Court Competion, para.10

83
ICTY, Summary of Judicial Activities, accessible online at www.un.org/icty/summary/
summar.htm, as of 3 September 2004.

84
Anna-Karin Lindblom, ‘ Non-governmental organisations’, Cambridge University Press, New York, USA
85
Article 53 paragraph a of The Statute of Rome

31
D.WHETHER THERE MUST BE TWO DIFFERENT VICTIM’S LEGAL TEAMS
UNDER SEPARATE VICTIMS’ LEGAL REPRESENTATIVES IN THIS CASE
BECAUSE ONE PORTION OF THE VICTIMS SUPPORTED SECESSION AND THE
OTHER FAVORED REMAINIG PART OF ASTAFUR

1.1THE RIGHT OF VICTIMES TO BE REPRESENTATIVE BEFORE THE COURT

Based on the primary conclusions that the population doe not wanted to the four Geneva
Conventions of August 12, 1949, for the Protection of War Victim.

The purpose of these conventions is to improve the treatment to be given persons who become
the victims of armed conflict and to re- lieve and reduce the suffering caused thereby. To that
end the four conventions are designed to modify, clarify, and develop existing inter- national
rules and practices dealing with the condition of wounded and sick and the inhabitants of areas
subjected to military occupation. Article 1mention that in cases not covered by this Protocol or
by other international agreements, civilians and combatants remain under the protection and
authority of the principles of international law derived from established custom, from the
principles of humanity and from the dictates of public conscience .

Victims’ views and concerns “may be presented by the legal representatives of the victims where
the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.” 86

The Statute recognizes that the interests of justice and the interests of victims are
complementary. The overriding interest of victims is likely to be the interest in seeing that crimes
are effectively investigated and that justice is done. Based on the request of requests from 234
victims (all of whom are immediate family members of people whose deaths are allegedly
attributable to the April 20 cyber attack) wishing to participate in the proceedings, consists that
their interest is the protection of their rights, from the state of Braanos which had founded the
attacks.

86
Rome Statute ,Article 68(3

32
The Office of Public Counsel for Victims shall be automatically appointed by the Registrar as
Legal Representative to provide support and assistance to unrepresented applicants at the stage
of the proceedings which precedes a decision by the relevant Chamber on their status until such
time as the procedural status of victim is granted to them and a Legal Representative is chosen
by them or appointed by the Court. As in the case of the prosecutor v. Abdallah Banda, Aba
Baker Nourain and Saleh Mohamed Jerbo Jamus, considering that the appointment of the
common legal representatives respects the admissible interests of victims, including victims
a/1646/10 and a/1647/10, and that no evident conflict of interest exists between the victims that
would warrant a different grouping than the one proposed so far by the Registry, the Chamber is
of the view that the absence of "direct" consultation with the victims was not prejudicial to the
two victims as their views were largely convened through their legal representatives. The
Chamber is persuaded that these views will continue to be appropriately expressed through the
Appointed Legal Representatives, who will act in accordance with the Code of Conduct to best
serve the interests of their clients.87

Rule 90(4) of the Rules provides that in the process of the selection of common Legal
Representatives, the Chamber and the Registry shall take “all reasonable steps to ensure that the
distinct interests of the victims are represented and that any conflict of interest is avoided”. In
order to protect these individual interests effectively, it is necessary to apply a flexible approach
to the question of the appropriateness of common legal representation, and the appointment of
any particular common Legal Representative. As a result, detailed criteria cannot be laid down in
advance. However, the Chamber envisages that considerations such as the language spoken by
the victims (and any proposed representative), links between them provided by time, place and
circumstance and the specific crimes of which they are alleged to be victims will all be
potentially of relevance. In order to assist it in the consideration of this issue, the Trial Chamber
directs the Victims Participation and Representation Section to make recommendations on
common legal representation in its reports to the Chamber.88

87
ICC, the prosecutor vs Abdallah Banda, Aba Baker Nourain and Saleh Mohamed Jerbo Jamus, Decision on
common legal representation, : ICC-02/05-03/09, 25 May 2012

88
ICC-02/04-117, Pre-Trial Chamber II (Single Judge), 15 February 2008, p. 5.

33
1.2.THE SAME PURPOUSE THAT ALL VICTIMES HAVE
Common legal representation is the primary procedural mechanism for reconciling the
conflicting requirements of having fair and expeditious proceedings, whilst at the same time
ensuring meaningful participation by potentially thousands of victims, all within the bounds of
what is practically possible. The Chamber considers, therefore, that the freedom to choose a
personal Legal Representative, set out in rule 90(1) is qualified by rule 90(2) and subject to
inherent and express powers of the Chamber to take all measures necessary if the interests of
justice so require.89 The Chamber analyzed all applications for participation in light of the above
and noted that the number of applications is so large that, taking into consideration that the
Chamber has already authorized 234 victims who participated in the confirmation proceedings to
continue participating in the trial proceedings and that the Chamber will soon issue its decision
on the new applications, which will multiply the number of participating victims, it would be
entirely unfeasible for each of them to be represented individually. Apart from a limited number
of applicants, all victims allege to have suffered harm as a consequence of the attack on Bogoro
on 24 February 2003. There do not seem to be tensions between them in terms of ethnicity, age,
gender or the type of crimes they were allegedly the victim of. Falling outside of this large
group, there is a small number of applicants who are former child soldiers, who allege to have
participated in the attack of 24 February 2003. They may thus have perpetrated some of the
crimes that victimized the other applicants. Moreover, these applicants have a different ethnic
background to that of the other applicants. Apart from the applicants mentioned in (c),
immediately above, a large proportion of victims allege to have been the victims of more than
one of the crimes charged and to have suffered different types of harm. It is thus not possible to
group the victims in entirely separate categories, as there are a number of victims who fall in
more than one category. Most applicants are still living in the area in which the attack took place.

CONCLUDING SUBMISSIONS
In accordance with the arguments and authorities presented herein, it is submitted that:

89
See No. ICC-01/05-01/08-322, Pre-Trial Chamber III (Single Judge), 16 December 2008, paras. 7-15.

34
 (i) Astafur is competent to make an Article 12(3) Declaration, triggering the
jurisdiction of the Court over war crimes committed in Pantos, despite its lack of
effective control over the territory of Pantos at the time of submission of the
Declaration

(ii) The Court has jurisdiction under the objective territorial principle over crimes
committed by a Non-Party State (Braanos) via cyberspace that have an effect in a
State (Astafur) that has lodged an Article 12(3) Declaration;

(iii) The widespread disruption of communications and electricity during a revolt

against the government of Astafur via a Distributed Denial of Service attack
constitutes a war crime;

(iv) There must be one Legal Representative in this case because they represent the
same interest for their familiars and there is no conflict of interest between them.

Respectfully submitted on this day

February 26, 2015

Legal Represenative for Victimes

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