QUESTION 1

The state of Kasrava (Kasrava), the state of Willa (Willa) and seven other countries signed a pact
to reduce and eliminate nuclear weapon in 2010. However, in December 2019, Kasrava withdrew
its signature and resumed its uranium enrichment at its underground nuclear facility. As a result,
Willa has authorised unilateral sanctions on Kasrava, including freezing its assets in several
countries. Kasrava claimed that the unilateral sanctions are illegitimate foreign policy tool.

In March 2020, Kasrava soldiers seized a Willa flagged tanker in its territorial water for possible
environmental rules violations. Willa's Foreign Minister negotiated with the government of
Kasrava to release the tanker. However, Kasrava officials said that it would comply with the
request if Willa stopped the sanctions and unfreeze its assets. Kasrava desperately needs its
assets to purchase vaccine doses in the fight against the coronavirus. Willa objected to the
condition imposed by Kasrava on the basis that it is not a legitimate countermeasure under
international law.

General Rutia was the top military leader of Kasrava. He led the foreign operations of Kasrava
Secret Service. Willa accused him of masterminding military operations in several countries and
was responsible for hundreds of its soldiers' deaths. The President of Willa and its military
generals orchestrated an assassination attempt against General Rutia. He was killed in April
2020, in a drone strike.

Kasrava argued that the assassination amounted to extrajudicial killing and was deemed to be
against international law. Kasrava's Public Prosecutor charges the President of Willa for murder
and terrorism. Kasrava had requested the Interpol to issue an arrest warrant against the President
of Willa for his role in the assassination of General Rutia. Interpol denied the request as it cannot
intervene in political and military activities. The President of Willa condemned the charges
imposed against him. He claimed that the court of Kasrava does not have the jurisdiction to
prosecute him as he is immune under international law, and the crime happened in the territory
of Kasrava. The President of Willa is scheduled to leave office on February 2021.
In September 2020, Willa Cybersecurity Agency discovered that hackers had hacked Willa's
governmental and non-governmental networks. The evidence suggested that the hackers
attempted to gather intelligence of government operations. Willa intelligence agencies suspected
that Kasrava was behind the massive hacking as the hacks were likely Kasrava in origin and the
President of Kasrava paid USD 100,000 monthly to a team of hackers tasked with spying. Willa
demands Kasrava to stop the cyber spying and hand over the hackers to be charged for
espionage. Kasrava has denied any wrongdoing and asserted that it should not be held
accountable for the acts committed by a group of cyberpunks.

In a compromise filed with the International Court of Justice (ICJ), Willa and Kasrava have agreed
to submit the dispute to the court. How should the ICJ determine the disagreement between these
two countries?
The overall issue concerns with the Law of State Responsibility can be narrowed down to several
issues which are:-

1. Whether Kasrava breaches the pact to reduce and eliminate nuclear weapon in 2010
and should be held accountable under the Law of State Responsibility.
2. Whether Kasrava can be held accountable for the invasion of cybersecurity in Willa's
governmental and non-governmental networks under the principle of State
Responsibility.

When a state commits an international wrong, against another state it incurs international
responsibility. Article 1 of the Drafts Articles (DA) stipulates that ‘every internationally wrongful
act of a State entails the international responsibility of that State’. Therefore, international
responsibility of a State arises from the commission of an internationally wrongful act. This is
reflected in the case of The Genocide Convention case (Bosnia and Herzegovina v Serbia
and Montenegro) where Serbia breached the genocide convention which was adopted and has
been regarded as part of International Customary Law on handling the perpetrators to be
convicted. To elaborate more, under Article 2 of DA, 2 requirements has been laid down to
determine the imputability of State which are (1) The conduct is attributable to the State under
international law which constitutes to a breach of an international obligation of the State. (b) There
is an internationally wrongful act of a State.

Since the State is an abstract entity, it cannot act of itself. States can act only by and
through their organs or by private persons. According to Article 4 of the DA, “the conduct of a
state organ shall be considered an act of that state under international law.” The term “state organ”
covers all the individual or collective entities which make up the organization of the State and act
on its behalf. However, the conduct of private persons is, as a general rule, not attributable to the
State under International Law. Nevertheless, Article 8 of the DA provides that the conduct of a
person or group of persons shall be considered an act of a State under international law if the
person or group of persons is in fact acting on the instruction of, or under the direction or control
of that State in carrying out the conduct. Article 8 deals with two circumstances (1) acting on the
instruction of the state (2) acting under the direction or control of the state. For the latter situation,
it can be inferred from the Nicaragua case. In this case, the question was whether the conduct
of the contras, an insurrection movement against the Nicaraguan Government, was attributable
to the United States so as to hold the latter responsible for breaches of international humanitarian
law committed by the contras. This case established the ‘effective control’ test. The ICJ held
that despite the heavy subsidies and other support provided to them by the United States, there
is no clear evidence that they have exercise such a degree of control as to justify treating the
contras as acting on its behalf. For the conduct to give rise to legal responsibility of the United
States, the principle has to be proved, that that state had effective control of the military and
paramilitary operations in the course of which alleged violations are committed.

For the first issue, arguably the conduct of Willa authorizing unilateral sanctions against
Kasrava is deemed to be done from the government of Willa since the government is the body
who entered into the pact. According to Article 4 of the DA, Willa shall be re responsible for the
conduct of its own organs.

For the second issue, the hackers from Kasrava can be categorize as individual persons
as they are not organs of the state or people or entities exercising elements of governmental
authority. To establish that their action may be attributed to the State of Kasrava, the court must
ascertain whether Kasrava has effective control over their actions specifically in their attempt to
gather intelligence of Willa’s government operations. By applying the test of effective control from
Nicaragua case, arguably, the fact that President of Kasrava paid USD 100,000 monthly to a
team of hackers tasked with spying is insufficient to attribute their conduct to the State of Kasrava.
There is no evidence to show that State of Kasrava have exercise such a degree of control as in
giving instructions to the hackers to hack and gather intelligence of Willa’s government operations
as to justify treating the hackers as acting on its behalf. As such, the hackers’ action may not be
attributed to the State of Kasrava under Article 8 as they fail to establish the test of effective
control.

Article 12 of the DA provides that there is a breach of an international obligation by a

State when an act of that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character. The phrase “regardless of its origins” refers to all possible
sources of international obligations. In the Rainbow Warrior arbitration, it was held that “any
obligation by any State of any international obligation, of whatever origin, gives rise to State
responsibility and consequently, to the duty of reparation.”

By applying the above authorities to the first issue, it is perspicuous that Willa has not
breached the pact to reduce and eliminate nuclear weapon in 2010 as the State has already
withdraw its signature from the pact before resuming its uranium enrichment at its underground
nuclear facility. Thus, there is no breach of an international obligation by Willa when an act of that
State is not in conformity with the pact to reduce and eliminate nuclear weapon in 2010 as
provided under Article 12.

In conclusion, for the first issue, there is no breach coming from Willa’s part as there is no
obligation to conform to the pact in the first place. For the second issue, Kasrava may not be held
accountable for the hacker’s action as they fail to prove effective control of Kasrava to the group
of hackers.

There are also several issues surrounding the validity of foreign policy tool exercise by Kasrava
and Willa as countermeasures which includes: -

1. Whether Willa’s action of freezing Kasrava’s assets in several countries is a legitimate

countermeasure under Article 22 of the Draft Articles.
2. Whether Kasrava’s action of seizing Willa’s flagged tank is a legitimate countermeasure
under Article 22 of the Draft Articles.

Although conduct may be clearly attributable to a state, and be clearly inconsistent with
its international obligations, it is possible that responsibility will not follow. There are six
circumstances that can be defences against an otherwise well-founded claim for the breach of an
international obligation which includes countermeasure. Countermeasure is defined as non-
forcible measures taken by an injured State in response to a breach of international law in order
to secure the end of the breach and if necessary reparation. Countermeasures can only be taken
in response to an international wrongful act and only against the State responsible for that act.
According to the International Law Commission, countermeasures are limited to the temporary
non-performance of one or some of the international obligations on the injured State owed to the
responsible State.

Under Article 22 of the DA, the wrongfulness of an act of a State not in conformity with
an international obligation towards another State is precluded if and to the extent that the act
constitutes a countermeasure taken against the latter State in accordance with chapter II of Part
Three. The International Court Affirmed in the Gabcikovo-Nagymoros Project case,
countermeasures taken by a State in response to an internationally wrongful act of another state
are not wrongful acts, but are recognized as valid means of self-help as long as certain conditions
are conformed to. However, there are conditions that must be complied as in Article 49 of the
DA, which states the State must not intend the countermeasure act to be permanent because the
objective of the countermeasure is to induce the other state to stop and comply with its obligations.
By virtue of the case of Air Services Arbitration (USA v France), the US retaliatory measures
were permissible as it is proportionate to the violation conduct by France. Thus, it proves that
countermeasures are permissible but it must be conducted within the limits set by the international
law pertaining to the use of armed forces.

By applying the above authorities, to the first issue, the unilateral sanctions imposed by
Willa to Kasrava by freezing the latter assets cannot be deem as an illegitimate countermeasure.
According to Gabcikovo-Nagymoros Project case, countermeasures can only be commence by
Willa against Kasrava if Kasrava has committed an internationally wrongful act towards Willa.
However, Willa’s response to allegations of Kasrava’s breach of the pact has no basis, as in the
beginning there was no breach of the pact obligation, as Kasrava has withdrew its signature from
the pact. Thus, Willa has no right to take countermeasure in the form of unilateral sanctions
against Kasrava under Article 22 as there is no wrongful act from Kasrava which would give rise
to Willa commencing countermeasure.

By applying the above authorities to the second issue, the seizure of the flagged tankers
of Kasrava from Willa can be deem as a legitimate countermeasure. According to Article 22, the
wrongfulness of Kasrava not in conformity with an international obligation towards Willa is
precluded if and to the extent that the act constitutes a countermeasure taken against the latter
State. By referring to Gabcikovo-Nagymoros Project case, seizing the flagged tanker as a form
of countermeasure taken by a Kasrava in response to an internationally wrongful act of Willa when
they freeze Kasrava’s assets in several countries are not wrongful acts, but are recognized as
valid means of self-help as Kasrava is deprive from enjoying their property to buy vaccines doses
in the fight against the coronavirus. Countermeasure undertaken by Kasrava has also met the
requirement of Article 49, which provides that Kasrava did not intend the countermeasure act of
seizing the flagged tanker to be permanent because the objective of the countermeasure is to
induce Willa to stopped the sanctions and unfreeze Kasrava’s assets. Countermeasures taken
by Kasrava is a valid one

There are 2 issues that concerns about jurisdiction which is:

1. Whether the court of Kasrava have jurisdiction to prosecute the President of Willa for
allegation of assassinating General Rutia.
 2. Whether the court of Willa have jurisdiction over the offence of hacking by hackers
originated in Kasrava.

Jurisdiction is the term that describes the limits of the legal competence of a State or other
regulatory authority or institution. It is an aspect of State sovereignty which includes both power
to prescribe rules and the power to enforce them. The former refers to legislative power of a State
and the latter includes both executive and judicial power of enforcement. Jurisdiction consists of
5 main principles which includes territoriality, nationality, protective, universality and passive
personality principles.

The principle of territoriality entails that a State can exercise jurisdiction over persons,
property, acts or event occurring within its territory. There are two forms of territoriality; subjective
and objective. The former entails that a State has jurisdiction over offences which commenced in
its territory but were completed abroad, whereas objective territorial principle provides that a State
have jurisdiction when any essential constituent element of a crime is commenced in another
State but completed in its territory. The leading case for the objective territorial principle is the
Lotus case. In this case there was a collision on the high seas in the Mediterranean between a
French steamer, the lotus, and a Turkish steamer in which the latter was sunk with a total of 8
deaths of Turkish sailors. Upon arrival of the Lotus at a Turkish port, its French officer of the watch
was arrested on the criminal charge of manslaughter. The PCIJ stated that the Turkish vessel
was to be assimilated to the Turkish territory and decided that Turkey was entitled to exercise
jurisdiction because a constituent element in the offence of manslaughter had occurred on Turkish
territory. The court accepted the objective territorial principle.

By applying the above principle to the issue, Kasrava may have the jurisdiction over the
criminal offence ie the assassination of General Rutia as it took place in Kasrava. Arguably, since
he was killed in a drone strike, allegedly orchestrated by the President of Willa and its military
generals, the offence started in Willa, where the drone were commenced. As such, the court of
Kasrava may have subjective jurisdiction to prosecute the President of Willa and its military
generals as the essential element of the assassination, the commencement of the drone which is
the killing machine started in Willa and the offence was completed in Kasrava. Similar to the Lotus
case, Kasrava should be entitled to exercise jurisdiction because a constituent element in the
offence of assassination which is the death of General Rutia had occurred in Kasrava’s territory.

Another type of criminal jurisdiction that can be claimed by States is the protective
principle. According to the protective principle, a state can punish acts prejudicial to its security,
integrity or national interest irrespective of where those acts take place or by whom they are
committed. In Joyce v DPP, one ground of jurisdiction was that the acts of the defendant while
he was in Germany were harmful per se to the United Kingdom. In this case the House of Lords
held that an alien who left Britain in possession of a British passport owed allegiance and was
guilty of treason when he subsequently broadcast propaganda for an enemy State in wartime.

In applying the above authority to the second issue, even though the act of hacking took
place in Kasrava, Willa’s security was threatened when the hackers attempted to gather
intelligence of Willa’s government operations by hacking into the State’s government and non-
governmental networks. The information is a confidential and disclosed matter that attempting to
gather it would amount to an offence under international law and may cause the security of Willa
to be at stake. As such, by referring to Joyce v DPP the acts done by the Kasrava hackers were
harmful per se to Willa’s security and thus gave rise to Willa to adjudicate the criminal offence.

However, another issue arises regarding the immunity as the serving Head of State that
is enjoyed by President Willa which may defy him from legal proceedings in foreign courts. The
issue is:-

1. Whether President Willa can rely on the defence of immunity against legal proceedings
for murder and terrorism under ICJ of General Rutia that took place in Kasrava.

There are several beneficiaries of an immunity from the jurisdiction of a foreign court in
customary international law, namely; states, heads of state and certain ministers of the central
government, diplomats and diplomatic staff, armed forces and international organisations. For the
purpose of this question, we shall discuss the immunity enjoyed by the Head of State. Both the
Head of State and heads of government, by reason of the functions which they exercise on behalf
of the State, are treated as a “State”, which enjoys immunity under international law. Immunity
can be divided into two types, Immunity ratione personae and Immunity ratione materiae. The
former type is enjoyed by Heads of State while in office and covers all acts, official and private.
Such immunity ceases once the Head of State or official vacates the post. The latter form entails
that all State officials are immune in respect of acts committed in their official capacities
irrespective of whether they are still occupying the post or have vacated it.

A serving head of State enjoys absolute immunity from criminal proceedings in respect of
both acts performed in the course of official functions and private acts. In the Ghadaffi case, the
French Cour de Cassation held that Colonel Ghadaffi as head of State of Libya was immune from
jurisdiction in respect of alleged complicity in acts of terrorism leading to the destruction of a
civilian aircraft in 1999. However, the immunity in respect of private acts committed while in office
ends when his or her term ended. In R v Bow Street Metropolitan Stipendiary Magistrate, ex
p Pinochet Ugarte, where Pinochet a former president of Chile was indicted by a Spanish Judge
on charges of torture and conspiracy of torture to torture he committed during his tenure as head
of state. In extradition proceedings in the UK, the issue arose whether Pinochet was immune from
the proceedings as a former head of state. The House of Lords held that Pinochet was not immune
because torture was a crime under international law for which immunity as a head of state was
not available. However, Lord Nicholl’s add in that, murder would not fall outside the functions of
a head of State, as such, is not recognized as a crime by international law. Pinochet’s loss of
immunity applied to all the offences allegedly committed by him as no immunity arose under
customary international law in respect of acts of torture and hostage-taking. The immunity of a
former Head of State exists in respect of acts done while in office if those acts were ‘official’.
Pinochet was denied immunity ratione personae because a former Head of State who committed
acts of international crime while he was a serving Head of State is not entitled to immunity.
Pinochet was denied immunity ratione materiae on the ground that such immunity applies only to
acts performed in the legitimate exercise of official functions and therefore acts of torture could
not be regarded as being performed in the legitimate exercise of the functions of a Head of State.
But in cases, where the official conduct is illegal under international law, Lord Steyn states that
commission of such high crimes such as genocide and crimes against humanity cannot be official
conduct, and as such is not covered by immunity rationae materiae.

By applying the above authorities, it is perspicuous that President of Willa enjoys Immunity
ratione personae which is enjoyed by Heads of State while in office and covers all acts, official
and private. The immunity as a serving Head of State for the purpose of the functions that he
exercises on behalf of the State, are treated as a “State”, which enjoys immunity under
international law. Referring to Ghadaffi case, President Willa enjoys absolute immunity from
criminal proceedings in respect of both acts performed in the course of official functions and
private acts. As such, he cannot be pressed for charges in the court of Kasrava for allegations
orchestrating an assassination attempt against General Rutia which resulted in his death.
However, the immunity he enjoys shall only be extended after his retirement from the post of
President Willa if his actions were done in his official capacities and not in his own private volition.
By referring to R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte,
since he was accused to murder, according to Lord Nicholl, his action will not fall outside the
functions of a head state, which entails him to immunity of ratione materiae since the murder of
General Rutia is arguably in his job scope of the head of state of Willa. But, President of Willa
shall not rely on the immunity of ratione materiae for the charges of terrorism, since terrorism is a
high crime and should not go unpunishable.

In conclusion, President of Willa is immune to legal proceedings of Kasrava’s court as he

is currently the serving Head of Willa’s State for charges of murder and terrorism under the
immunity of ratione personae. However, since he will be leaving his post in February 2021, he
shall no longer rely on the immunity of ratione materiae after he retires for the charges for
terrorism, and as such, the proceeding may continue.

As all the above issues have been addressed, we shall conclude that in the first instance,
the unilateral sanctions imposed against Kasrava by Willa was an illegitimate countermeasure as
the argument that Kasrava has breached the pact is nonexistent since Kasrava has withdrew from
the pact, and thus the State no longer has the obligation to conform to the pact. For the second
paragraph, the countermeasure undertaken by Kasrava is deemed to be a valid countermeasure
under international law as it met all the requirements that give rise to the right of a State to invoke
countermeasure. Moving on, Kasrava has the jurisdiction to proceed legal proceeding against the
President of Willa for orchestrating an assassination to General Rutia which leads to his death.
However, due to the immunity as a serving Head of State, President of Willa is immune to any
legal proceedings as a sitting president under immunity ratione personae. But, Kasrava may
pursue the legal proceedings after the President’s tenure ends, as his immunity of ratione
materiae ends with his term which is in February 2021. The next issue is pertaining whether the
hackers action may be attributable to Kasrava which will entail state responsibility in which the
answer is no. This is due to the lack of effective control over the act of hacking. To add in, Willa
has the jurisdiction to commence legal proceedings over the offence committed even though it
originated in Kasrava by virtue of the protective principle.