Summer Internal Mooting Selections 126

Participant Code – 126

RESEARCHER’S TEST

2020
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SUMMER INTERNAL MOOTING SELECTIONS

126

TABLE OF CONTENTS

Table of
Contents.......................................................................................................................................ii
Questions
Answered................................................................................................................................... 1
Summary of
Answer................................................................................................................................... 2
Substantive Answer.............................................................................................................................. 3
I. International Law should not recognise the defence of ‘mistake’ for an Internationally
Wrongful Act ..........................................................................................................................................
3
1. The Law of State Responsibility is based on the assessment of objective responsibility.3
2. The test of objective assessment does not recognise the defence of mistake of fact. ..... 4
II. IHRL should not apply in armed conflicts with terrorists................................................... 5
1. An armed conflict between a State and an NSA constitutes a NIAC................................ 5
2. IHRL should not apply in armed conflicts between a State and an NSA ......................... 5
Conclusion ................................................................................................................................................
.. iii
I. International law should not recognise the defence of ‘mistake’ for an internationally
wrongful act............................................................................................................................................
iii
II. IHRL should not apply in armed conflicts with terrorists.................................................. iii
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Questions Answered

I. Should international law recognise the concept of 'mistake' as a defence to

internationally wrongful acts?

II. Should IHRL apply in armed conflicts with terrorist groups?

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Summary of Answer

I. The law of State Responsibility is based on assessing a State’s conduct given objective
factors. The ICJ and a lot of Arbitral Tribunals have based the responsibility of a State
through this objective assessment. The defence of ‘mistake of facts’, states that there lies
no liability for acts done by a person under a mistake of fact, if the individual is under the
‘honest or reasonable’ belief that their acts are justified by law hence bringing a subjective
element in an objective analysis. Thus, the doctrine is not in consonance with the
established principles of state responsibility, and consequently, the ICJ has implicitly
rejected this defence several times. The ILC draft articles also do not recognise such a
defence.
In any case, if such a defence were recognised in International Law, it would violate the
core tenets of the UN Charter.
II. IHRL should not apply to NIACs firstly because the so-called hybrid models of IHL and
IHRL fail to deliver on practical needs as they are devoid of content. Secondly, it has not
adapted to cover situations of prolonged detention and internment which are required in a
transnational NIAC.
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Substantive Answer

I. International Law should not recognise the defence of ‘mistake’ for an Internationally
Wrongful Act
The defence of ‘mistake of fact’ is understood as a defence, in municipal law, which diminishes
the culpability of the individual and justifies the offensive act, if the author is under the ‘honest
and reasonable’ belief that the act committed is justified by law. 1 Its determination requires a
subjective assessment. 2 If this concept of municipal law is applied in International Law, the
adjudication of the responsibility of a State becomes a subjective exercise, or is based on the culpa
of the State. 3 It is submitted that the law of State Responsibility is based on the fundamental
principle of finding the objective responsibility of the State [1]. This objective assessment
standard does not allow for the defence of mistake of fact [2], and further, recognising such a
defence will lead to its rampant abuse [3].
1. The Law of State Responsibility is based on the assessment of objective responsibility.
The doctrine of objective responsibility states that the liability of a State is strict in nature. 4 Once
the agency and causal connection to the State has been established, there is a breach of
obligations by result alone. 5 A State cannot be equated to a natural person who’s culpa has to be
assessed. Instead, the incidence of the wrongful act has to be seen. 6
The objective test has been employed in a lot of arbitral awards while determining State
responsibility. 7 In the Caire claim before the French-Mexico General Claims Commission, the
Tribunal recognised the general practice of various Tribunals while determining State
Responsibility and held that responsibility could occur without any fault too. 8 Thus the Tribunals
have maintained that the responsibility of the State does not hinge upon the State’s fault.

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1 Russell L Christopher, ‘Mistake of Fact in the Objective Theory of Justification: Do Two Rights
Make Two
Wrongs Make Two Rights’ [1994-1995] 85 Journal of Criminal Law & Criminology 295.
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2 Colin Turpin ‘Defence of Mistake of Law’ [1978] 37(1) Cambridge Law Journal 8.

3 James R Crawford, Brownlie’s Principles on Public International Law (8 th edn, OUP 2012), p 556.
4 Malcolm N Shaw, International Law (8 th Edition, CUP 2017), p 593.
5 Crawford (n 3), p 565.
6 Ibid.
7 L F H Neer and Pauline Neer (USA) v United Mexican States [1926] 6 RIAA 60, 61; Harry Roberts
(USA) v United
Mexican States [1926] 6 RIAA 77, 80.
8 Gustave Caire (France) v United Mexican States [1929] 5 RIAA 516, 529.

As a corollary, the intentions or motives behind the act committed are irrelevant for the
objective assessment of responsibility. As long as the obligation has been breached and the
unlawful act has been committed, the intent of the State does not play any role, 9 unless the
offence itself requires specific intent. 10
2. The test of objective assessment does not recognise the defence of mistake of fact.
In the Oil Platforms Case, the ICJ had to decide whether the US attacks on the Iranian Oil
Platforms were the former’s exercise of lawful self-defence. 11 While deciding whether there
existed an armed attack attributable to Iran, the Court analysed the objective facts and did not
take into consideration the ‘reasonable and honest’ belief of the USA that the acts were
attributable to Iran. 12 On facts, the Court found that that the acts complained by the United
States could not be attributed to Iran and hence, the use of force by the USA was unlawful. 13
Similarly, in the Air Services Agreement arbitration between USA and France, while deciding on the
lawfulness of countermeasures adopted by the USA due to an alleged wrongful act of France, the
Tribunal noted that each State has the right to assess its legal situation vis-à-vis another state on
its own. 14 However, a mistake in the assessment of the situation does not justify countermeasures
taken in furtherance of the incorrect assessment, 15 clearly implying that a mistake of fact cannot
be a valid ground precluding wrongfulness.
Additionally, the ILC draft articles on State Responsibility, 16 which represent the Customary
International Law on the subject 17 , does not recognise the mistake of fact as a circumstance
precluding wrongfulness. This goes on to show that the particular defence is at odds with the
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established practice of objective assessment.

9 Crawford (n 2).
10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and
Montenegro) (Merits) [2007] ICJ Rep 43.
11 Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [2003] ICJ Rep 161.
12 Marko Milanovic, ‘Mistakes of Fact When Using Lethal Force in International Law: Part II’
(EJIL:Talk!, 15
January 2020) <https://www.ejiltalk.org/mistakes-of-fact-when-using-lethal-force-in-international-
law-part-ii/>
accessed 16 July 2020.
13 Oil Platforms (n 11), [61].
14 France v USA (Air Services Agreement) [1978] 18 RIAA 416.
15 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts with
commentaries, 2001, Supplement No
10 UN Doc A/56/10 (ARSIWA) p 101.
16 Ibid.
17 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)
(Merits) [2005] ICJ Rep 168.

Thus, the defence is not in consonance with the established standard of assessment, and its
introduction will lead to an abuse of the rights in the UN Charter.
II. IHRL should not apply in armed conflicts with terrorists
The present issue is concerned regarding whether IHRL obligations govern the armed conflict
between a State and a Terrorist group. For this answer, a terrorist group is assumed to be a Non-
State Actor [“NSA”]. It is submitted that the armed conflict between a State and an NSA
constitutes a NIAC [1], and IHRL should not apply in a NIAC [2].
1. An armed conflict between a State and an NSA constitutes a NIAC

There can be two scenarios where a State is in an armed conflict with an NSA. If the NSA is on
the State’s territory, then there exists no issue, and the same will be categorised as a NIAC under
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Additional Protocol II to the Geneva Conventions. 18

An IAC is triggered when one State uses armed force against another state, including unilateral
acts of force by a State against the regular or irregular armed forces of the other. 19 The essential
element triggering an IAC is the use of armed force against another state, as reflected in Common
Article 2 to the Geneva Conventions [“GCs”]. 20
An armed conflict between a State and an extra-territorial NSA does not fulfil the above
fundamental principle of use of armed force against a state. The International Criminal Court in
a recent decision, reiterated this and observed that “it is widely accepted that when a State enters
into a conflict with a non-governmental armed group located in the territory of another state …
[and] the armed group is not acting on behalf of the [territorial] government, … there is a
NIAC”. 21
Thus, an armed conflict between a State and an NSA, present in another state’s territory is also
categorised as a NIAC.
2. IHRL should not apply in armed conflicts between a State and an NSA

18 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of
Non-International Armed Conflicts (adopted on 8 June 1977, entered into force on 7 December
1978) 1125 UNTS
609, Art 1(4).
19 Jean Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary – Volume III Geneva
Convention Relative To The
Treatment Of Prisoners Of War (ICRC 1960), p 23.
20 Geneva Convention Relative to the Treatment of Prisoners of War (adopted on 12 August 1949,
entered into
force 21 October 1950) 75 UNTS 135 (Third Geneva Convention), Art 2.
21 Situation in the Democratic Republic of the Congo, in the case of the Prosecutor v. Thomas
Lubanga Dyilo (Trial
Chamber I) ICC-01/04-01/06 (14 March 2012), [541].

In the Wall Opinion the ICJ stated that IHRL continues to apply in armed conflicts and applies in
three ways: IHL solely governs some areas, IHRL solely governs some and in some areas, the
principles of IHRL are to be understood in the context of the IHL. 22
This approach, it is submitted, is not satisfactory as it does not talk about the exact concepts
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which belong within these three categories. 23 There lacks certainty on the specific issues, and this
uncertainty can lead to adverse results during a conflict. There is a reason why IHL is one of the
most codified areas of public international law, because it is meant for the use of the armed
forces who do not have time to ponder over the customary nature or the systemic integration of
IHL and IHRL. Therefore, unless there exists a proper model of IHRL relating to IHL, both of
them cannot be used in conjunction.
Additional issues arise when we talk about the detention of the members of the NSA, in another
territory. 24 The Common Article 3 and APII were drafted keeping in mind that NIACs will occur
only in the territory of the State party to the conflict, and hence detention and internment will be
regulated by the domestic law of the country concerned. Hence, a proper system of internment
was not provided as it would have legitimised the detention of armed forces of the State. 25 Now,
the doctrine of a NIAC has expanded past the traditional understanding and extends to cross-
border armed conflicts between a State and an NSA. The proponents of IHRL in an armed
conflict state that the principles of IHRL can only fill such a gap. 26 However, this should not be
the standard since IHRL is very restrictive in its scope and does not take into account the
realities of a conflict where prolonged detention is necessary for military purposes.
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Conclusion
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22 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep
136, [25].
23 Jean-Marie Kamatali, ‘The Application of International Human Rights Law in Non-International
Armed Conflicts
From Rhetoric to Action’ [2014] 4 Journal of International Humanitarian Legal Studies 218.
24 Jelena Pejic, ‘Conflict Classification and Law to Detention and Use of Force’ in Elizabeth
Wilmshurst (ed),
International Law and the Classification of Conflicts (OUP 2012); Jonathan Horowitz and Christopher
Rogers, ‘Does IHL
need Human Rights Law?: The curious case of NIAC detention’ (Just Security, 5 May 2014)
<https://www.justsecurity.org/10134/guest-post-ihl-human-rights-law-curious-case-niac-detention-
serdar-
mohammed/> accessed 16 July 2020.
25 Ibid.
26 Abd Ali Hameed Al-Waheed v Ministry of Defence [2017] UKSC 2.

SUMMER INTERNAL MOOTING SELECTIONS 126

7
The questions are answered as follows –
i. International law should not recognise the defence of ‘mistake’ for an internationally
wrongful act.
ii. IHRL should not apply in armed conflicts with terrorists.
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