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JTXT9000781408 Nalsar Public International Law Moot 01 2021 Shrutishambhavi2023 Bitslawschooleduin 20230828 153226 1 20
JTXT9000781408 Nalsar Public International Law Moot 01 2021 Shrutishambhavi2023 Bitslawschooleduin 20230828 153226 1 20
Case Concerning the Military Attacks by The State of Mazia and by The
Republic of Grasona
State of Mazia … Applicant;
Versus
Republic of Grasona … Respondent.
TABLE OF CONTENT
TABLE OF CONTENTS
LIST OF ABBREVIATIONS IV
TABLE OF AUTHORITIES V
A. TREATIES & CONVENTIONS V
B. CASES V
C. ARTICLES, JOURNALS & YEARBOOKS VII
D. BOOKS & COMMENTARIES VIII
STATEMENT OF JURISDICTION 01
IDENTIFICATION OF ISSUES 02
STATEMENT OF FACTS 03
SUMMMARY OF PLEADINGS 05
PLEADINGS 06
ISSUE I: GRASONA'S BOMBINGS ON THE TERRITORY OF MAZIA ON 21 06
JULY 2017 WERE UNDERTAKEN AS A MEASURE OF RIGHT OF SELF-
DEFENCE AND, THEREFORE, WERE NOT IN VIOLATION OF SOVEREIGNTY
AND TERRITORIAL INTEGRITY OF MAZIA AND DID NOT AMOUNT TO THE
VIOLATION OF THE PROVISIONS OF THE UNITED NATIONS CHARTER
ON THE USE OF FORCE AND ANY OTHER RELEVANT INTERNATIONAL LAW
[A] Grasona's bombings were a lawful act of self-defence 06
under the UN Charter
1. Bombings carried out by AUF in Grasona constitute an 06
armed attack
2. Non-State actors are capable of carrying out armed 08
attacks
[B] In Arguendo, if the armed attack was not carried out 09
by AUF, the same can be attributed to Mazia under State
Responsibility
1. Violation of international legal obligation by Mazia 10
2. Armed attack by AUF is attributed to Mazia 11
a) Mazia bears vicarious responsibility 11
b) Substantial involvement of Mazia 12
[C] Grasona complied with the requirements of necessity 13
and proportionality
1. Grasona's self-defence was in pursuance of necessity 14
a) Use of force exercised as a last resort 14
b) Reasonable proximity between attack and 14
response
c) Attacks directed towards AUF centres 15
2. Mazia's unwillingness necessitated the use of force 15
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Clarifications to follow) (“the Case”) to the Court pursuant to Art.40 (1) of the Court's
Statute1 . Therefore, in accordance with Art. 36(1) read with Art. 40(1) of the Statute
of ICJ, this Hon’ble Court has jurisdiction over the present case.
IDENTIFICATION OF ISSUES
The State of Grasona respectfully requests this Hon’ble Court to adjudge that:
ISSUE 1: GRASONA'S BOMBINGS ON THE TERRITORY OF MAZIA ON 21 JULY 2017 WERE
UNDERTAKEN AS A MEASURE OF RIGHT OF SELF-DEFENCE AND, THEREFORE, WERE NOT IN
VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF MAZIA AND DID NOT AMOUNT TO THE
VIOLATION OF THE PROVISIONS OF THE UNITED NATIONS CHARTER ON THE USE OF FORCE AND ANY
OTHER RELEVANT INTERNATIONAL LAW .
ISSUE 2: GRASONA'S BOMBINGS DURING THE SECOND ROUND OF BOMBINGS ON 21 JULY 2019
ON THE TERRITORY OF MAZIA SPECIFICALLY TARGETED THE AUF TRAINING CENTERS AND NOT THE
CIVILIAN LOCALITIES AND, THEREFORE, DID NOT AMOUNT TO A VIOLATION OF THE FOUR GENEVA
CONVENTIONS AND THE ADDITIONAL PROTOCOL I OF 1977 OR ANY OTHER RELEVANT
INTERNATIONAL LAWS .
SUMMARY OF FACTS
1965/1968 Independence of Mazia/Grasona
1977 Formation of FRU to attain equal representation for Faronas in
political participation and employment.
1998 Devolution of powers amidst skepticism by Faronian population
1996 Formation of AUF for a United Faronaland with the belief that
Mazia should be governed in accordance with the Farona ethnic
practices.
10 Jan 2002 AUF gives call for a nationwide strike to make the Faroni
language as the compulsory medium of instruction which fails.
Demands primarily anchored to Farona ethnicity and to its
cultural, social and spiritual world.
2002 Policy paper released by AUF- establishment of a United
Faronaland including Mazia and Western Province of Grasona,
proclamation the support of Faronas of Mazia and the mention
that Farona people of the Western Province of Grasona would
be convinced to join the future United Faronaland.
March 2016 Incidents of violence targeting government property and
premises.
April 2016 Regular confrontations between security forces and suspected
members of FRU reported.
December 2016 Federal government informed that 78 militants belonging to
FRU were killed and 19 security personnel lost their lives in
relation to the situation in Western Province.
28 Jan 2017 AUF declared its support to the FRU and called for FRU to shun
its demand for an independent state.
15 Feb 2017 FRU informed that their struggle for independent Faronaland
would continue.
March-April 2017 Bombings took place killing 123 security personnel.
5 May 2017 Grasona attributed the bombings to AUF militants and urged
Mazia to take immediate action against the same.
6 July 2017 Two suicide bombers exploded themselves resulting in loss of
36 security personnel. Grasona informed the media that they
found credible evidence to prove that the suicide bombers
belonged to AUF.
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was directed against AUF training centers which were a legitimate military objective.
Moreover, FRU and AUF members are combatants under IHL and, therefore, targeting
them was lawful. In any event, the elimination of AUF training centers which were
responsible for carrying out attacks in Grasona outweighs any incidental loss of life.
PLEADINGS
ISSUE I: THAT GRASONA'S BOMBINGS ON THE TERRITORY OF MAZIA ON 21 JULY 2017 WERE
UNDERTAKEN AS A MEASURE OF RIGHT OF SELF-DEFENCE AND, THEREFORE, WERE NOT IN
VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF MAZIA AND DID NOT AMOUNT TO
VIOLATION OF PROVISIONS OF THE UNITED NATIONS CHARTER ON THE USE OF FORCE AND ANY
OTHER RELEVANT INTERNATIONAL LAW
[A] GRASONA'S BOMBINGS WERE A LAWFUL ACT OF SELF-DEFENCE UNDER THE UN
CHARTER
1. The prohibition against the use of force is not absolute2 . International law
permits States to use force through the exercise of their right of self-defence under
Art.51 of the UN Charter3 . Bombings in Mazia are justified in pursuance of exercise of
self-defence, being a necessary and proportionate response to the AUF's armed
attack4 . Furthermore, the Respondent submits that Grasona's failure to report its
action to the Security Council does not estop it from asserting self-defence. Reporting
is merely a procedural mechanism for monitoring compliance with Charter
commitments.5
1. BOMBINGS CARRIED OUT BY AUF IN GRASONA CONSTITUTE AN ARMED ATTACK
2. Destruction of property and loss of life have been recognized as constituting an
armed attack in international law6 . In determining the existence of an armed attack,
the following are to be considered; first the scale of attacks and second its effects in
terms of damage or casualties as relevant variables7 . The Respondent submits that
multiple bombings took place in the months of March and April, 2017 resulting in the
death of one hundred twenty three security personnel8 . Further explosions occurred in
the month of July, 2017 additionally leading to the death of thirty six security
personnel9 . The cumulative effect of the loss of life evidences the gravity of these
attacks justifying the characterization of an armed attack10 .
3. In Nicaragua, this Court laid down the test of ‘sufficient gravity’ of use of force to
constitute an armed attack triggering the right of self-defence. The test requires that
only the ‘most grave forms of use of force’ would amount to an armed attack within
the meaning of Art. 51 of UN Charter11 . The threshold of gravity is a flexible one, which
is dependent on the specific circumstances of each case12 . The Respondent humbly
submits that the nature of attacks with respect to six bombings in the first round
followed by subsequent explosions in the second affirms the magnitude of the attacks
against Grasona and undoubtedly qualifies to invoke appropriate self-defence
measures. The attacks were recurrent and grave in nature owing to the gross violation
of Grasona's sovereignty and territorial integrity. The said attacks, in blatant disregard
of principles of international law, also led to the loss of over one hundred fifty lives.
IN ARGUENDO, THERE EXISTS INSUFFICIENT GRAVITY TO CONSTITUTE AN ARMED ATTACK
4. Assuming but not conceding that there is insufficient gravity to constitute an
armed attack, the Respondent most humbly submits that the series of hostile attacks
give rise to a substantial claim of self-defence to Grasona under the ‘accumulation of
events doctrine’ with respect to AUF attacks13 . The doctrine demands consecutive
attacks to take place which are linked in time, source and cause and that the attacks
are part of a ‘continuous, overall plan of attack’. The Respondent contends that the
attacks were carried out by AUF as the singular source, and occurred in consecutive
months against Grasona which establishes the systematic continuity and overall plan
of attacks14 . The Respondent contends that the attacks were carried out against
Grasona by AUF being the singular source, and occurred in consecutive months which
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and proportionality47 . The Respondent submits that such requirements have been met
by Grasona.
1. GRASONA'S SELF-DEFENCE WAS IN PURSUANCE OF NECESSITY
18. Necessity means that a State has no other means to defend itself, but to rely
on force48 . To fulfill the requirement of necessity three components are to be met.
a) USE OF FORCE EXERCISED AS A LAST RESORT
19. A State can only resort to armed force against another State when there are no
realistic alternative means of redressal available49 . Self-defence is permissible only
when peaceful means have reasonably been exhausted50 . Grasona sought to resolve
the matter by urging Mazia to take action against AUF militants, thereby discharging
its burden under the requirement of necessity. Grasona is only required to undertake a
bona fide utilization of diplomatic channels51 which it had exhausted. Moreover,
Grasona is not under an obligation to compromise its sovereignty.52
b) REASONABLE PROXIMITY BETWEEN ATTACK AND RESPONSE
20. ‘Immediacy’ under self-defence mandates proximity in time between the attack
and the response in self-defence53 . After the suicide bombing at the security
checkpoint Grasona undertook air strikes on AUF training centers on 21st July. Grasona
cannot be said to have taken too long in undertaking its self-defensive action since a
mere fifteen days had passed from the date of the last attack by AUF. Moreover, this
condition should not be construed too strictly54 . Some level of preparation is needed to
mount an appropriate and coordinated response55 . Further, the Respondent submits
that Grasona is not obliged to confine itself to an on-the-spot reaction to the armed
attack, but is also allowed to exercise its right to self-defence after the latest attack
has factually ended in order to impede further attacks.56
c) Attacks directed towards AUF centres
21. The use of force must be adequate for the repelling of an armed attack57 . That
is, the action undertaken should in principle be directed against the source of the
armed attack58 . Grasona's air strikes on Mazia's territory solely targeted AUF training
centers in response to bombings by AUF.
2. MAZIA'S UNWILLINGNESS NECESSITATED THE USE OF FORCE
22. Self-defence is a right triggered by an act, rather than the actor59 . Even if Mazia
is not directly responsible for the attacks, Grasona must be able to prevent the same.
State practice60 recognizes a State's right of self-defence against non-State actors
operating extraterritorially in cases61 where the host state is unable or unwilling to act
against the non-State actors62 . The Respondent submits that cross-border force
becomes necessary where an aggressor organizes attacks or is based in another state
which cannot or will not end the aggression63 . Mazia's failure to take requisite action
against AUF evidences its unwillingness, thereby ruling out any cooperation with
Mazia64 . Such inaction by Mazia necessitated the use of force by Grasona in tackling
AUF.
3. GRASONA'S BOMBINGS WERE PROPORTIONATE USE OF FORCE
23. To be considered proportional, a response must be limited to what is sufficient
to secure the defender's rights and ensure its security, including the restoration of
security65 . An evaluation of proportionality analyzes the reasonableness of an act of
self-defence66 . Such analysis is carried out through a combination of quantitative and
functional approaches.67
24. Taking into consideration the functional requirement of proportionality which
requires State's use of force to defensive purposes68 , the Respondent submits that
Grasona's bombings were directed only towards AUF training centers. The destruction
of AUF centers was imperative to prevent future cross border attacks and was in the
compelling interest of Grasona's security.
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25. With respect to the quantitative requirement69 , the Respondent submits that
Grasona's response in targeting AUF centres was measured and reasonable taking into
account the cumulative damage suffered in terms of casualties of security personnel
over systematic and recurrent attacks, the source of which was AUF.
ISSUE II: THAT GRASONA'S BOMBINGS DURING THE SECOND ROUND OF BOMBINGS ON 21 JULY
2019 ON THE TERRITORY OF MAZIA SPECIFICALLY TARGETED THE AUF TRAINING CENTRES AND
NOT THE CIVILIAN LOCALITIES AND, THEREFORE, DID NOT AMOUNT TO A VIOLATION OF THE FOUR
GENEVA CONVENTIONS AND THE ADDITIONAL PROTOCOL I OF 1977 OR ANY OTHER RELEVANT
INTERNATIONAL LAWS
26. The Respondent submits that there exists no armed conflict between Grasona
and Mazia, thus ruling out the application of IHL. The same is substantiated as under.
[A] NON-EXISTENCE OF AN ARMED CONFLICT BETWEEN GRASONA AND MAZIA
27. The Applicant submits the existence of an armed conflict is a necessary
prerequisite for IHL to operate70 . In the absence of an armed conflict, there is no
violation of IHL in the present case.
1. NON-EXISTENCE OF AN INTERNATIONAL ARMED CONFLICT
28. The conflict between Grasona and AUF cannot be classified as an International
Armed conflict. For an IAC to exist there must be resort to force between two High
Contracting Parties regardless of the intensity of the confrontation71 . It is well settled
that an IAC does not exist when force is used by individuals or groups.72
a) THERE IS NO RESORT TO ARMED FORCE BETWEEN THE STATES
29. An IAC requires ‘a resort to armed force between states’73 . The criterion is not
satisfied because Grasona has not deployed armed forces against Mazia and AUF is a
non-State group74 . Further, Art.1(4) of AP I to the Geneva Conventions extends the
scope of application of the Conventions to include conflicts in which people are fighting
against colonial domination, alien occupation or racist regimes in the exercise of their
right of self-determination75 . FRU's secessionist aims do not internationalize the
conflict, because Grasona is neither ‘founded on racist criteria’ nor is it a colonial or
occupying power.
b) ABSENCE OF “EFFECTIVE” OR “OVERALL CONTROL” OF MAZIA OVER AUF
30. Further, the Respondent submits that to assess if an IAC exists by reason of
the indirect participation of a State, the degree of control exerted by that State over
one of the armed groups participating in the hostilities must be considered76 . Under
the effective control test77 , in order to hold a State responsible for the acts of a non-
State group, it must be shown that the group acted on the instructions of, or under
the direction or control of that State in carrying out the conduct78 . It requires that the
State is involved in the planning of the operation, choosing targets and providing
operational support79 . Furthermore, it does not suffice in itself that the state exercises
‘general control’ over the group, even in cases of a high degree of dependency of the
group on the State80 .
31. The Respondent submits that AUF is neither an organ nor an agency of Mazia
and is an independent association that was functioning without any instructions of, or
under the direction or control of Mazia. Therefore, Mazia does not hold responsibility
over AUF under the effective control test. Additionally, Mazia neither exercised control
over AUF in form of financing, training, equipping nor by having a role in organizing or
directing its military activities of AUF, thereby ruling out the possibility of exercising
overall control as well.81
[B.] In Arguendo, there exists an international armed conflict between Grasona and
Mazia
32. In the event this Court finds that an International Armed Conflict does exist or
that the Geneva Conventions and their Additional Protocols are applicable, the
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Respondent humbly submits that Grasona complied with its IHL obligations.
1. GRASONA DID NOT VIOLATE THE PRINCIPLE OF DISTINCTION DURING THE SECOND
ROUND OF BOMBINGS
33. Parties to a conflict must distinguish between civilian and combatants and
between civilian objects and military objectives82 . The Respondent most humbly
submits that there was no violation of the aforementioned principle during the second
round of bombings on two counts.
a) THE ATTACKS WERE DIRECTED AGAINST AUF TRAINING CENTRES PURSUANT TO A
MILITARY OBJECTIVE
4. Grasona duly made the distinction between civilians and combatants, and
between civilian objects and military objectives. Civilian objects are defined ex
negativo as not being military objectives,83 which make no effective contribution to
military action depending on their nature, location, purpose or use, or whose total or
partial destruction, capture or neutralization offers no definite military advantage in
the circumstances ruling at the time84 . It is most humbly submitted that Grasona
solely targeted AUF centres in pursuance of a military objective as opposed to civilian
objects.
35. First, the Respondent contends that ‘nature’ as a criterion of military objective
denotes the intrinsic character of the object. To meet this yardstick, an object must be
endowed with some inherent attribute which makes an effective contribution to
military action.85 The training centres of AUF by virtue of their nature and use in
carrying out attacks against Grasona ipso facto constitute a military objective.
36. Second, the requirement of effective contribution relates to military action in
general, and there need not be any “direct connection” with specific combat
operations.86 Training centres effectively contributed to the military action by AUF in
terms of their utility and character as they housed militants and equipment87 . Owing
to their effective contribution to the military action of the AUF, training centres stood
clear as a military objective.
b) AUF AND FRU ARE COMBATANTS UNDER IHL
37. The Respondent submits that no civilians were killed at the border. Only AUF
centres were targeted, apart from which members of FRU were present in the forest
adjoining the border with Mazia. In any event, the attack did not result in the killing of
civilians as both AUF and FRU are ‘combatants’ under IHL. Members of militias or
volunteer corps are combatants under IHL.88 Both AUF and FRU fulfill the conditions for
part of such militias or volunteer groups.
38. In respect of AUF, the Respondent first contends the condition of being
commanded by a person responsible for his subordinates implies the existence of an
organizational structure which enforces discipline.89 AUF being an association in itself
affirms the presence of a hierarchy. Its enforcement as an organizational structure is
evident through the release of their policy paper.90
39. Secondly, the condition of a distinctive sign requirement entails the purpose of
making a distinction between civilians and combatants.91 Such distinction is satisfied
as Grasona has successfully killed AUF militants and destroyed their equipment92
which remains uncontested by Mazia. Without a marker of identification this distinction
and the subsequent killings wouldn’t have taken place.
40. The third condition requires a similar distinction by forces during their
operations against the enemy93 . The condition does not require the visibility of arms94 .
The equipment destroyed by Grasona during the bombings is suggestive of them
carrying arms, thereby satisfying the condition.
41. In extension, the Respondent submits that AUF bears responsibility under a
continuous combat function which may be identified on the basis of conclusive
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as a catalyst of attacks against Grasona. Considering the scale and nature of the
explosions in Grasona, neutralization of the AUF centres provided a definite military
advantage by diminishing the overall military capability of AUF and subsequently
effectuating deterrence.
2. THE ELIMINATION OF AUF TRAINING CENTRES OUTWEIGHS INCIDENTAL LOSS OF LIFE
48. Identification of incidental harm with respect to proportionality assessment is
determined through causation and foreseeability.107 While causation of attack by
Grasona is not contested, it is submitted that foreseeability, which relates to whether
incidental harm can be expected to occur, gets diminished on account of feasible
measures being taken and distinction being maintained. The Respondent submits that
targeting of only AUF centres along with the prior warning being advanced rules out
the likelihood of incidental harm.
49. Further, the Respondent submits the protection of civilians from military
operations is not absolute.108 Extensive collateral damage is legally justified by the
military value of the target struck, because of the high military advantage anticipated
by the attack.109 The destruction of AUF training centres was not in excess of “direct
and concrete” military advantage anticipated during the circumstances prevailing at
that time owing to the high military value of the targets. In the face of repeated
attacks from AUF militants coming from Mazia, training centres held military value
hence their destruction offered direct and concrete military advantage. AUF training
centres operated as military bases. Therefore, such elimination outweighs any
incidental loss of life.
3. GRASONA’ UNDERTOOK FEASIBLE PRECAUTIONARY MEASURES
50. Respondent submits that Grasona took feasible precautions to minimize the
expected collateral damage.110 Feasibility is determined by what is practicable in the
circumstances.111 This includes giving effective advance warning prior to an attack
which may affect the civilian population.112 Grasona intimated that stringent necessary
action would be taken against those who support AUF,113 even when it was not
necessary in order to attain military objectives.114 This evidently establishes a warning
to isolate AUF. Grasona had advanced a warning as to the types of facilities, objects, or
objectives that are likely to be subject to attack to the extent that115 the intimation
prior to the attack amounts to consideration for the location and existence of civilians,
thereby upholding feasible precaution and observing proportionality.
PRAYER FOR RELIEF
For reasons stated above, the Respondent hereby requests the Court to adjudge and
declare that:
I. GRASONA'S BOMBINGS ON THE TERRITORY OF MAZIA ON 21 JULY 2017 WERE UNDERTAKEN
AS A MEASURE OF RIGHT OF SELF-DEFENCE AND, THEREFORE, WERE NOT IN VIOLATION OF
SOVEREIGNTY AND TERRITORIAL INTEGRITY OF MAZIA AND DID NOT AMOUNT TO THE
VIOLATION OF THE PROVISIONS OF THE UNITED NATIONS CHARTER ON THE USE OF FORCE
AND ANY OTHER RELEVANT INTERNATIONAL LAW , AND;
II. GRASONA'S BOMBINGS DURING THE SECOND ROUND OF BOMBINGS ON 21 JULY 2019 ON
THE TERRITORY OF MAZIA SPECIFICALLY TARGETED THE AUF TRAINING CENTRES AND NOT
THE CIVILIAN LOCALITIES AND, THEREFORE, DID NOT AMOUNT TO A VIOLATION OF THE FOUR
GENEVA CONVENTIONS AND THE ADDITIONAL PROTOCOL I OF 1977 OR ANY OTHER
RELEVANT INTERNATIONAL LAWS , AND;
III. A NY OTHER RELIEF WHICH THIS HON’BLE COURT MAY DEEM FIT IN THE I NTEREST OF
JUSTICE.
All of which is respectfully submitted
———
1 Art. 1, Special Agreement Submitted to the International Court of Justice by the State of Mazia and the
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Republic of Grasona on the Differences between them Concerning the Military Attacks by the State of Mazia and
by the Republic of Grasona
2 U.N. Charter art. para 4; James A Green, Questioning the Peremptory Status of the Prohibition of the Use of
Force, 32 MichJIntlL 215, 229(2011).
3
U.N. Charter, art. 51; Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986
I.C.J. ¶195 (June 27); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. ¶38 (July
8).
4 U.N. Charter, art 51; Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986
I.C.J. ¶194-195 (June 27).
5 Ruys, ‘Armed Attack’ and Art. 51 of the UN Charter: Evolutions in Customary Law and Practice, 8-9 (2010).
6Case Concerning United States Diplomatic and Consular Staff in Tehran (Iran v. United States of America),
1980 I.C.J. ¶14, 57, 64 (May 24).
7Ruys, Supra note 5, at 139; Sean D. Murphy, Terrorism and the Concept of “Armed Attack” in Art. 51 of the
U.N. Charter (2002) 43 Harv. Int'l L.J. 41, 47-51 (2002).
8 Compromis, ¶ 11.
9
Compromis ¶ 13.
10
Murphy, Supra note 7, at 43; Case Concerning United States Diplomatic and Consular Staff in Tehran (Iran v.
United States of America), 1980 I.C.J. ¶14, 57, 64 (May 24).
11Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. ¶191 (June
27).
12Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), 2003 I.C.J. ¶ 72
(November 6).
13 Levenfeld, Israel's Counter-Fedayeen Tactics in Lebanon: Self-defence and Reprisal under Modern
International Law, 21 Colum. J. Transnat'l L. 1, 41(1982).
14Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. ¶ 231 (June
27); Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), 2003 I.C.J. ¶ 64 (Nov
6); Christine Grey, International Law and Use of Force, 130, 155 (3rd ed., Oxford University Press 2018) (2008).
15Case Concerning United States Diplomatic and Consular Staff in Tehran (Iran v. United States of America),
1980 358 I.C.J. ¶ 28 (Nov 6) (separate opinion of Kooijmans, J.); Yoram Dinstein, War, Aggression and Self-
Defence, 215,216 (3rd ed. New York Cambridge University Press 2000) (1988).
16Case Concerning United States Diplomatic and Consular Staff in Tehran (Iran v. United States of America),
1980 358 I.C.J. ¶ 31 (Nov 6) (separate opinion of Kooijmans J.); Dinstien, Supra note 15, at 215-216; Bruno
Simma, The Charter of the United Nations: A Commentary, 802 (2nd ed., Oxford University Press, 2002).
17 Vienna Convention on the Law of Treaties art 31, May 23, 1969, 1155 U.N.T.S. 331.
18
Greenwood, International Law and the “War Against Terrorism”, 78 Int. Aff. 301, 307-308 (2002); Karin, What
Matters is the Armed Attack, not the Attacker!, HJIL 77, 44-51 (2017).
19North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark v Netherlands), 1969 43 I.C.J.¶ 74
(Feb 20).
20 Statement by the NATO Secretary-General (2001) 40 ILM 1268; Resolution of the Twenty fourth Meeting of
Consultation of Ministers of Foreign Affairs, OAS Doc No RC24/RES1/01 (21 September 2001); Council of the EU,
‘2372nd Council Meeting (General Affairs)’ (Press Release, 8-9 October 2001) 7; Letter dated 7 October 2001
from the Permanent Representative of the USA, UN Doc S/2001/946 (2001); Antonio Cassese, Terrorism is Also
Disrupting Some Crucial Legal Categories of International Law, 12 EJIL 993, 997(2001).
21S.C. Res. 1373, UN Doc S/RES/1373 (Sept 28, 2001); S.C. Res. 1368, UN Doc S/RES/1368 (Sept 12, 2001);
Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 168, ¶ 172-173, 314
(Dec. 19) (separate opinion of Simma J. and Kooijmans J.); Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. ¶ 215 (separate opinion of Higgins J.)(July 9).
22 H. Mosler, The International Society as a Legal Community, Dordrecht, 157(1980); E. Jimenez de Arechaga,
International Responsibility' in Manual of Public International Law, 531, 534 (M. Sørensen, 1968).
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23 Island of Palmas Case (United States v Netherlands), II RIAA 829, 839 (Perm. Ct. Arb. 1928).
24 Trail Smelter Arbitration, (United States v. Canada), II RIAA 829 (Perm. Ct. Arb 1928).
25Soheil Ghasemi, Sic Utere Principle Revisited: State Responsibility for Cross-Border Violence?, CILJ, (May 06,
2019), http://cilj.co.uk/2019/05/06/sic-utere-principle-revisited-state-responsibility-for-cross-border-violence/.
26 Corfu Channel Case (United Kingdom v. Albania) Merits, 1949 I.C.J. 22 (April 9).
27Case Concerning United States Diplomatic and Consular Staff in Tehran (Iran v. United States of America),
1980 I.C.J. ¶ 56-68 (May 24).
28
Special Rapporteur's Draft Articles on International Liability for Injurious Consequences Arising Out of Acts Not
Prohibited By International Law in Their 1989 Version, UN Doc. A/CN.4/423, ILC, 41st Sess. Arts. 10-17(1989);
Corfu Channel Case (United Kingdom v. Albania) Merits, 1949 I.C.J 22 (April 9).
29
Corfu Channel Case (United Kingdom v. Albania) Merits, 1949 I.C.J 18 (April 9).
30Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations, GA Res 2625, 25thsess, 1883rdmtg, UN Doc A/Res/2625
(October 24, 1970).
31 Compromis, ¶ 13.
32Paulina Starski, Right to Self-defence, Attribution and the Non-State Actor, Birth of the “Unable or Unwilling”
Standard?, 75 HJIL 455, 485 (2015).
36 René Värk, Terrorism, State Responsibility and the Use of Armed Forces, 14 ENDCP 74(2011).
37 Compromis, ¶ 13.
38 Definition of Aggression, G.A. Res. 3314 art. 3, U.N. Doc. A/9631 (December 14, 1974), A/RES/3314.
39 René, Supra note 36.
40Y. Arai-Takahashi, Shifting Boundaries of the Right of Self-Defence - Appraising the Impact of the September
11 Attacks on Jus ad Bellum, IntLaw 1081, 1082 (2002); Michael Byers, Terrorism, the Use of Force and
International Law After 11 September, 51 Int Comp Law Q 401, 408(2002); 2, A. Cassese, ‘Article 51 La Charte
des Nations Unies, 1350 (3rd ed. J.-P. Cot and A. Pellet 2005); Kirsten Schmalenbach, The Right of Self-defence
and “The War on Terrorism” One Year After September, 3 German LJ 1, 20 (2002).
419, Vincent-Joël Proulx, Transnational Terrorism and State Accountability: A New Theory of Prevention, 253
(1st ed. 2012).
42JE Noyes & BD Smith, State Responsibility and the Principle of Joint and Several Liability, 13 Yale JIntIL 225,
254 (1988).
43
S.C. Res. 1373, UN Doc S/RES/1373 (Sept 28, 2001).
44Madeline Holmqvist Skantz, The Unwilling or Unable Doctrine - The Right to Use Extraterritorial Self-defence
Against Non-State Actors, Stockholm University, 41(2017) (on file with Stockholm University).
45
Gray Christine, International Law and the Use of Force, 159 (2nd ed., Oxford University Press) (2004).
46Williams Gareth D., Piercing the Shield of Sovereignty: An Assessment of the Legal Status of the “Unwilling or
Unable” Test, 25 UNSWLJ 588, 619 (2013).
47 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ 245, ¶ 40-41(July 8).
48Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), 2003 I.C.J. ¶ 194
(November 6); Jasmine Moussa, Can Jus ad Bellum Override Jus in Bello? Reaffirming the Separation of the Two
Bodies of Law, 90 Intl Rev. Red Cross 963, 975 (2008).
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70 Prosecutor v. Tadic, Case No.IT-94-1-A, 88-97 (Int'l Crim. Trib. for the Former Yugoslavia July 15, 1999).
71Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 2, Aug. 12, 1949, 75
UNTS 287; Prosecutor v. Tadic, Case No.IT-94-1-A, ¶ 70 (Int'l Crim. Trib. for the Former Yugoslavia July 15,
1999).
72
D. Schindler, The Different Types of Armed Conflicts According to The Geneva Conventions and Protocols, 163
RCADI, 131 (1979).
73 Prosecutor v. Tadic, Case, No.IT-94-1-A, ¶ 70 (Int'l Crim. Trib. for the Former Yugoslavia July 15, 1999);
Prosecutor v. Delalic, Case No. IT-96-21-T, ¶ 183 (Int'l Crim. Trib. for the Former Yugoslavia November 16,
1998).
74Kreb, Some Reflections on The International Legal Framework Governing Transnational Armed Conflicts, 15 JC &
SL 245, 255-56 (2010).
75
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), art. 1 ¶ 4, June 8 1977, 1125 UNTS 3.
76The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-T-67(June 12,
2009).
77Application of The Convention on The Prevention and Punishment of The Crime of Genocide (Bosnia and
Herzegovina v. Serbia And Montenegro) 2007 I.C.J. 207, ¶ 400(26 February).
78
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 8, UN GAOR 53rd Sess.
Supp. (No. 10) at 43, U.N. Doc. A/56/10 (2001); Application of The Convention on The Prevention and
Punishment of The Crime of Genocide (Bosnia and Herzegovina v. Serbia And Montenegro) 2007 I.C.J. 207, ¶ 399
(26 February).
79 Prosecutor v. Tadic, Case No. IT-94-1-A, ¶ 84 (Int'l Crim. Trib. for the Former Yugoslavia July 15, 1999).
80Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. ¶ 115 (June
27); Application of The Convention on The Prevention and Punishment of The Crime of Genocide (Bosnia and
Herzegovina v. Serbia And Montenegro) 2007 I.C.J. 207, ¶ 400(26 February).
81
Prosecutor v. Tadic, Case No. IT-94-1-A, ¶ 131, 137, 138, 145 (Int'l Crim. Trib. for the Former Yugoslavia July
15, 1999).
82Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), art. 48, June 8 1977, 1125 UNTS 3.
83Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), art. 52 ¶ 1, June 8 1977, 1125 UNTS 3.
84
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), art. 52 ¶ 2, June 8 1977, 1125 UNTS 3.
85 Yoram Dinstien, Legitimate Military Objective in Current Jus in Bello, 78 Int'l Law Studies 139, 146 (2002).
86
Waldemar Solf, Art. 52, in New Rules For Victims Of Armed Conflicts: Commentary on The Two 1977 Protocols
Additional To The Geneva Conventions Of 1949, 329 (Michael Bothe, Karl Partsch&Waldemar Solf., 1982);
87
Robert Kogod Goldman, International Humanitarian Law: Americas Watch' s Experience in Monitoring Internal
Armed Conflicts, 9 AmUIntlLRev 49, 72 (1993).
88 Geneva Convention Relative to the Treatment of Prisoners of War, art. 4(a), Aug. 12,1949, 75 UNTS 135;
89 H. Fischer, 2002, Yearbook of International Humanitarian Law, Vol. 5, 76.
90
Compromis, ¶ 7.
91 Toni Pfanner, Military Uniforms and The Law of War, 86 IRRC 93, 106 (2004).
92
Compromis ¶ 14
93
W. Thomas Mallison Sally V. Mallison, The Juridical Status of Irregular Combatants under the International
Humanitarian Law of Armed Conflict, 9 CaseWResJIntlL (1977).
94 Fischer, Supra note 89, at 77.
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95Geoffrey Corn & Chris Jenks, Two Sides of The Combatant Coin: Untangling Direct Participation in Hostilities
From Belligerent Status in Non-International Armed Conflicts, 33 UPaJIntEconL 313, 320 (2011).
96
Compromis, ¶ 11.
97 Compromis, ¶ 13.
98 Compromis, ¶ 14.
99
Compromis, ¶ 19.
100 Geoffrey Corn & Chris Jenks, Supra note 95, at 313, 322.
101 Field Manual 27-10, The Law of Land Warfare, ¶ 64 (1956).
102
J. De Preux, Commentary on The Geneva Prisoners of War Convention of 1949, 61 (J. Pictet. 1960).
103 Geneva Convention Relative to the Treatment of Prisoners of War, art. 4a, Aug. 12, 1949, 75 UNTS 135.
Nils Melzer, Interpretive Guidance on The Notion of Direct Participation in Hostilities under International
104
Program on Humanitarian Policy and Conflict Resolution, Commentary on the HPCR Manual on International Law
109
112Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), art. 57 ¶ 2, June 8 1977, 1125 UNTS 609.
113 Compromis, ¶ 13.
114Yves Sandoz, et al., Commentary on The Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949, ¶ 2223(1987).
115
Ibid.
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