Team Best Memorial Petitioner Nalsar Public International Sanikasunil1552 Nualsacin 20240122 082206 1 20

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 1 Monday, January 22, 2024

Printed For: Sanika Sunil, The National University of Advanced Legal Studies
SCC Online Web Edition: http://www.scconline.com
© 2024 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
1st NALSAR Public International Law Moot, 2021

Team Best Memorial - Petitioner
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
LIST OF ABBREVIATIONS IV
TABLE OFAUTHORITIES V
A. TREATIES & CONVENTIONS V
B. CASES VI
C. ARTICLES, JOURNALS & YEARBOOKS VII
D. BOOKS VII
STATEMENT OF JURISDICTION 01
IDENTIFICATION OF ISSUES 02
STATEMENT OF FACTS 03
SUMMMARY OF PLEADINGS 05
PLEADINGS 06
ISSUE I: THAT GRASONA'S BOMBINGS ON THE TERRITORY OF 06
MAZIA ON 21 JULY 2017 ARE IN VIOLATION OF SOVEREIGNTY AND
TERRITORIAL INTEGRITY OF MAZIA AND AMOUNTED TO VIOLATION
OF PROVISIONS OF THE UN CHARTER ON THE USE OF FORCE AND
OTHER RELEVANT INTERNATIONAL LAW
A. BOMBINGS OF 21 JULY 2017 VIOLATE ARTICLE 2(4) OF UN 06
CHARTER
1. AIR STRIKES ON MAZIA'S TERRITORY CONSTITUTES 07
AGGRESSION UNDER INTERNATIONAL LAW
[B] GRASONA'S INCURSION INTO MAZIA'S TERRITORY AMOUNTS 08
TO UNLAWFUL USE OF FORCE
1. BOMBINGS OF 21 JULY 2017 WERE NOT VALID EXERCISE 08
OF RIGHT TO SELF DEFENSE
a) ABSENCE OF AN ARMED ATTACK … 08
(i) SELF DEFENSE CANNOT BE INVOKED AGAINST A NON-STATE 09
ACTOR
b) THE CONDUCT OF AUF CANNOT BE ATTRIBUTED TO MAZIA 09
(i) MAZIA DID NOT EXERCISE “EFFECTIVE CONTROL” OVER 10
AUF
(ii) MAZIA DID NOT EXERCISE OVERALL CONTROL OVER 11
AUF
(iii) MAZIA DID NOT ACKNOWLEDGE OR ADOPT AUF'S 11
ACTS
IN ARGUENDO, THERE WAS AN ARMED ATTACK BY AUF 11
[C] GRASONA DID NOT COMPLY WITH THE PRINCIPLE OF 12
NECESSITY AND PROPORTIONALITY UNDER THE EXERCISE OF
SELF-DEFENSE
1. GRASONA VIOLATED THE PRINCIPLE OF NECESSITY 12
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2. GRASONA VIOLATED THE PRINCIPLE OF PROPORTIONALITY 13

[D] GRASONA'S FAILURE TO IMMEDIATELY NOTIFY THE 14
SECURITY COUNCIL ESTOPS IT FROM CLAIMING THAT THE
ATTACK IS JUSTIFIED BY SELF-DEFENSE
[E] GRASONA DID NOT RECEIVE SECURITY COUNCIL 15
AUTHORIZATION FOR THE AIR STRIKES RENDERING THE ATTACK
UNLAWFUL
[F] THE RESPONDENT'S ACTIONS CANNOT BE JUSTIFIED UNDER 15
THE “UNABLE OR UNWILLING” TEST
1. UNABLE OR UNWILLING TEST IS NOT A PART OF CIL 15
2. REQUIREMENTS OF THE DOCTRINE ARE NOT MET 16
Issue II: THAT GRASONA'S BOMBINGS ON THE CIVILIAN 17
LOCALITIES AND KILLING OF CIVILIANS DURING THE SECOND
ROUND OF BOMBINGS ON 21 JULY 2017 ON THE TERRITORY OF
MAZIA AMOUNTED TO A VIOLATION OF THE FOUR GENEVA
CONVENTIONS AND THE ADDITIONAL PROTOCOL I OF 1977 AND
OTHER INTERNATIONAL LAWS
[A] EXISTENCE OF AN INTERNATIONAL ARMED CONFLICT 17
[B] NON-OBSERVANCE OF PRINCIPLE OF DISTINCTION BY 18
GRASONA
1. EXISTENCE OF CIVILIAN POPULATION AT THE BORDER 19
2. MEMBERS OF FRU AND AUF ARE NOT COMBATANTS UNDER 19
IHL
IN ARGUENDO, MEMBERS OF FRU ARE COMBATANTS UNDER IHL 21
3. ABSENCE OF MILITARY OBJECTIVE 22
[C] GRASONA'S BOMBINGS VIOLATED THE PRINCIPLE OF 23
PROPORTIONALITY
1. THE SECOND ROUND OF BOMBINGS BY GRASONA WAS 23
EXCESSIVE
2. SECOND ROUND OF BOMBINGS WERE IN EXCESS TO THE 24
DIRECT MILITARY ADVANTAGE
3. NO PRECAUTIONARY MEASURES WERE TAKEN BY GRASONA 25
IN CARRYING OUT THE BOMBINGS
PRAYER FOR RELIEF 26
LIST OF ABBREVIATION
AUF Association for United Faronaland
Art. Article
ARSIWA Articles on Responsibility of States for Internationally
Wrongful Acts
AP I Additional Protocol I to Geneva Conventions
ARSIWA Article on Responsibility of States for Internationally
Wrongful Acts
CIL Customary International Law
FRU Farona Rights Unity
GAF Grasonian Air Force
IAC International Armed Conflict
GC Geneva Convention
ICJ International Court of Justice
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economis, Social and Cultural
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Rights
IHL International Humanitarian Law
UN Charter United Nations Charter
UNGAR United Nations General Assembly Resolution
TABLE OF AUTHORITIES
A. TREATIES, CONVENTIONS & STATUTES
Bibliographical information Page No.
International Committee of the Red Cross (ICRC), Geneva 18
Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field (First Geneva
Convention),12 August 1949, 75 UNTS 31
International Committee of the Red Cross (ICRC), Geneva 19
Convention Relative to the Treatment of Prisoners of War (Third
Geneva Convention), 12 August 1949, 75 UNTS 135
International Committee of the Red Cross (ICRC), Protocol 17, 18, 19, 21,
Additional to the Geneva Conventions of 12 August 1949, and 22, 24, 25
relating to the Protection of Victims of International Armed
Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3
Second Protocol to the Hague Convention for the Protection of 23
Cultural Property in the Event of an Armed Conflict art 6(1),
March 26, 1999, 2253 U.N.T.S 172 (1999).
The Hague Convention (IV) Respecting the Laws and Customs of 23
War on Land and Its Annex: Regulations Concerning the Laws and
Customs of War on Land art. 23(g), 18 October U.N.T.S (1907)
United Nations, Charter of the United Nations, 24 October 1945, 1 6, 7, 8, 11, 14
UNTS 26
B. CASES
International Court of Justice and Permanent Court of International Justice
Armed Activities on the Territory of the Congo (Dem. Rep. Congo 9, 14, 16,
v. Uganda), 2005 I.C.J. (Dec.19)
Advisory Opinion Concerning Legal Consequences of the 9, 12, 16, 18, 23
Construction of a Wall in the Occupied Palestinian Territory, 2004
I.C.J. (09 July)
Application of Convention on Prevention and Punishment of Crime 10
of Genocide (Bosn. & Hen. v. Serb. & Montenegro), 1996 I.C.J.
(July 11)
Certain Questions Relating to the Settlers of German Origin in the 10
Territory Ceded by Germany to Poland, Advisory Opinion, 1923
PCIJ (ser.B) (September 10)
Corfu Channel Case (United Kingdom v. Albania), Merits, 1949 6, 16
I.C.J. 34 (9 April)
GabčÍkovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 12
Rep. 40 (25 Sep)
Legal Consequences for States of the Continued Presence of 14
South African Namibia (South West Africa) Notwithstanding
Security Council Resolution 276 (Advisory Opinion) 1971 I.C.J.
(21 June)
Legality of the Threat or Use of Nuclear Weapons, Advisory 8
Opinion (1996) I.C.J. (July 8)
Military and Paramilitary Activities in and Against Nicaragua 8, 9, 10, 14, 23
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(Merits) (Nicar. v. U.S.), 1986 I.C.J. (June 27)

International Criminal Tribunal for the former Yugoslavia
Prosecutor v. Delalić, Case No. IT-96-21-T, (Int'l Crim. Trib. for 17
the Former Yugoslavia, November 16, 1998)
The Prosecutor v. Dusko Tadić, Decision on the Defence Motion for 11, 17
Interlocutory Appeal on Jurisdiction (Appeals Chamber), Case No.
IT-94-1-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 2 October 1995
C. ARTICLES, JOURNALS & YEARBOOKS
Antonio Cassese, The International Community's ‘Legal’ Response 9
to Terrorism, 38 INT’L & COMP. L.Q. 589, 597 (1989)
Ashley S. Deeks, “Unwilling or Unable”: Toward a Normative 15, 16
Framework for Extraterritorial Self-Defense, 52 VA. J. INT’L L.
483, 505 (2012)
Corten O., The ‘Unwilling or Unable’ Test: Has it Been, and Could 15
it be Accepted? 29 Leiden Journal of International Law, 777-799
(2016)
Elizabeth Wilmshurts, Principles Of International Law and The Use 13
of Force By States In Self-Defense 9 (2005)
Jutta BrunnÉe & Stephen J. Toope, Self-Defence against Non- 15
State Actors: Are Powerful States Willing but Unable to Change
International Law?, 67 INT’L & COMP. L.Q. 263, 276-77 (2018)
Michael Byers, Terrorism, The Use of Force and International Law 13
after 11 September, 51 International andComparative Law
Quarterly 401 (2002)
Moussa, Can jus ad bellum override jus in bello? Reaffirming the 13
separation of the two bodies of law, 90 IRRC, 963, 979 (2008)
Theodora Christodoulidou & Kalliopi Chainoglou, The Principle of 13
Proportionality in Self-Defence and Humanitarian Intervention, 20
Journal of International Law of Peace and Armed Conflict 79
(2007)
Wee Yen Jean, The Use of Force Against Non-State Actors 11
Justifying and Delimiting the Exercise of the Right of Self-Defence
9 SLR (December 6, 2017)
F. BOOKS
Brownlie, Principles of Public International Law, (2003) 6
Shaw, International Law, (2003) 6, 15
Schacter, International Law in Theory and Practice, (1993) 6
Oppenheim, International Law, (Jennings & Watts, eds., 1999) 6
Brownlie, International Law and the Use of Force by States, 9, 6
(1963)
Lachs, The Development and General Trends of International Law 6
in Our Time, (1980)
C. Gray, International Law and the Use of Force, (3rd edn, 2008). 8, 14
Tom Ruys, ‘Armed Attack’ and Article 51 Of The U.N. Charter, 9, 12, 13
(2010)
J. Crawford, State Responsibility: The General Part, (2013) 10
Crawford, The International Law Commission's Articles On State 11
Responsibility: Introduction, Text And Commentaries, (2002)
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Cassese, International Law in a Divided World, (1st edn. 14

Clarendon Press, Oxford 1988)
De Wet, The Chapter VII Powers of the United Nations Security 14
Council (1st edn. Hart Publishing, Oxford 2004)
Karol Wolfke, Custom in Present International Law, (1993) 15
STATEMENT OF JURISDICTION
Article 36(1) of the ICJ statute reads that:
“The jurisdiction of the Court comprises all cases which the parties refer to it and
all matters specially provided for in the Charter of the United Nations or in treaties
and conventions in force.”
Article 40(1) of the statute reads that:
“Cases are brought before the Court, as the case may be, either by the
notification of the special agreement or by a written application addressed to the
Registrar. In either case the subject of the dispute and the parties shall be
indicated.”
It is hereinafter most respectfully submitted that the Parties have submitted the
questions contained in the Special Agreement (together with Corrections and
Clarifications to follow) (“the Case”) to the Court pursuant to Article 40(1) of the
Court's Statute.1 Therefore pursuant to Art. 36(1) of the ICJ statute read with Article
40(1), this Hon’ble Court has jurisdiction over the present case.
IDENTIFICATION OF ISSUES
The State of Mazia respectfully requests this Hon’ble Court to adjudge:
ISSUE 1: THAT GRASONA’S BOMBINGS ON THE TERRITORY OF MAZIA ON 21 JULY
2017 ARE IN VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF MAZIA
AND AMOUNTED TO A VIOLATION OF THE PROVISIONS OF THE UNITED NATIONS
CHARTER ON THE USE OF FORCE AND OTHER RELEVANT INTERNAL LAW.
ISSUE 2: THAT GRASONA’S BOMBINGS ON THE CIVILIAN LOCALITIES AND THE
KILLING OF CIVILIANS DURING THE SECOND ROUND OF BOMBINGS ON 21 JULY 2017
ON THE TERRITORY OF MAZIA AMOUNTED TO A VIOLATION OF THE FOUR GENEVA
CONVENTIONS AND ADDITIONAL PROTOCOL IOF 1977 AND 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 amid 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
the compulsory medium of instruction which fails. Demands were
primarily anchored to Farona ethnicity and to its cultural, social and
spiritual world.
2002 Policy paper released by AUF - establishment of a United Faroland
including Mazia and Western Province of Grasona, proclaimation 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 occur targeting government property and
premises.
April 2016 Regular confrontations between security forces and suspected
-----------------------------------------------------------------------------------------------------------------------------------------------------------
members of FRU reported.

December Federal government informed that 78 militants belonging to FRU
2016 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 Bombings took place killing 123 security personnel
2017
5 May 2017 Grasona attributed the bombings to AUF militants and urger 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
evidence to prove the belonging of bombers from AUF in Mazia.
21 July 2017 Grasona informed bombings in six location in Mazia targeting AUF
training centres and successfullyin killing several militants and
equipment. Mazia confirmed the bombings by Grasona.
22 July 2017 Mazia informed about second round of bombings hitting civilian
localities leading to several casualties of the civilians. Grasona
denied the civilian casualties. Media reported killing of 32 persons
near the border.
23 July 2017 Mazia issued a statement on the violation of territorial integrity and
sovereignty, and the killing of civilians pursuant to the bombings
by Grasona and issued that they would respond.
25 July 2017 Mazia issued a statement informing attacks on two military bases
of Grasona as a measure of self-defense. Additionally, the
permanent representative of Mazia to the United Nations submitted
a letter to the president of the United Nations Security Council
informing the attacks.
26 July 2017 Grasona informed that they only targeted the AUF training centres
as a measure of self-defence because Mazia was unwilling and
unable to take action against AUF and the attacks by Mazia were in
violation of International Law and UN Charter.
29 July 2017 NMRCO negotiated an understanding for referring the matter of
legality of actions of both states to the ICJ.
17 April 2019 Submission of Special Agreement to ICJ pursuant to Art. 40(1) of
the statute.
SUMMARY OF PLEADINGS
ISSUE I: THAT GRASONA'S BOMBINGS ON THE TERRITORY OF MAZIA ON 21 JULY 2017
ARE IN VIOLATION OF SOVEREIGNTY AND TERRITORAIL INTEGRITY OF MAZIA AND
AMOUNTED TO VIOLATION OF THE PROVISIONS OF THE UN CHARTER ON THE USE OF
FORCE AND OTHER RELEVANT INTERNATIONAL LAWS.
The Applicant submits that Grasona violated the sovereignty and territorial integrity
of the Mazia by carrying out bombings on Mazia's territory on 21 July 2017. The
attacks constitute an unlawful use of force, a violation of the principle of non-
intervention, a violation of the customary norm of good neighborliness, and a violation
of Art. 2(4) of the UN Charter. Respondent cannot justify this use of force by invoking
its right of self-defense because there was no armed attack attributable to Applicant
and the requirements of self-defense have not been met. Neither can Respondent
justify its actions under the unable or unwilling doctrine as it is not a part of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
customary international law.

ISSUE II: THAT GRASONA'S BOMBINGS ON THE CIVILIAN LOCALITIES AND KILLING OF
CIVILIANS DURING THE SECOND ROUND OF BOMBINGS ON 21 JULY 2017 ON THE
TERRITORY OF MAZIA AMOUNTED TO A VIOLATION OF THE FOUR GENEVA CONVENTIONS
AND THE ADDITIONAL PROTOCOL I OF 1977 AND OTHER INTERNATIONAL LAWS.
The Applicant submits that Grasona violated IHL by failing to abide by the principle
of distinction and the principle of proportionality. Both AFU and FRU are civilians under
IHL and bombings by the Grasonian Air Force did not entail a military objective.
Moreover, the second round of bombings were excessive and failed to make a
distinction between combatants and non-combatants. They were also in excess of the
direct and concrete military advantage. Furthermore, no precautionary measures were
taken on the part of Grasona during the second round of bombings in the presence of
civilian localities and population, thereby violating the precautionary principle.
PLEADINGS
Issue I: THAT GRASONA'S BOMBINGS ON THE TERRITORY OF MAZIA ON 21 JULY 2017 ARE IN
VIOLATION OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF MAZIA AND AMOUNTED TO A
VIOLATION OF THE PROVISIONS OF THE UN CHARTER ON THE USE OF FORCE AND OTHER RELEVANT
INTERNATIONAL LAW
1. The sovereign equality of States is a fundamental principle of international law,2
and consent in respect of any incursion onto its territory is essential.3 Territorial
integrity denotes the inviolability of a State's physical territory and the proscription of
forcible trespassing of any kind.4 The Applicant submits that the bombings undertaken
by Grasona in absence of consent by Mazia violates its sovereignty and territorial
integrity guaranteed under the UN Charter and CIL.
[A.] BOMBINGS OF 21 JULY 2017 VIOLATE ARTICLE 2(4) OF UN CHARTER
2. The travaux préparatoires to the UN Charter clarifies that “the unilateral use of
force is not authorized or admitted.”5 Art. 2(4) of the UN Charter proscribes all use of
force, irrespective of the motivation behind it.6 The text of Art. 2(4) is to be read as a
complete prohibition on the use of force.7 The expression “territorial integrity and
political independence” was inserted to provide a safeguard to small States.8 This is
particularly important in the instant case considering the difference in population
between Mazia and Grasona.9
3. The Applicant humbly submits that the bombings of 21 July 2017 on its territory
carried out by Grasona in the absence of any legal justification would attract Art. 2(4)
of the UN Charter and are a prima facie violation of the provisions of the UN Charter.
1. AIR STRIKES ON MAZIA'S TERRITORY CONSTITUTE AGGRESSION UNDER
INTERNATIONAL LAW
4. United Nations General Assembly Resoltuion 3314 establishes that the “first use
of armed forces by a state in contravention of the charter shall constitute a prima facie
evidence of an act of aggression.” This includes “bombardment by the armed forces of
a State against the territory of another State.”10 When a state fails to adhere to the
conduct required to assert a right to self-defense, the state is prohibited from
engaging in invasion, attack, bombardment, against the territory of another State.11
5. In assessing whether Grasona's attack on Mazia constitutes an act of aggression
this court should consider that; force was used against the territory of Mazia by
Grasona;12 there was a violation of the jus cogens norm on non-intervention;13 the
force was of a sufficient character, gravity, and scale to constitute an armed attack.14
Grasona's bombings targeted civilian localities and additionally killed thirty two
civilians.15 The number of locations bombed manifests sufficient gravity and scale as to
amount to an armed attack.
B. GRASONA'S INCURSION INTO MAZIA'S TERRITORY AMOUNTS TO UNLAWFUL USE OF
-----------------------------------------------------------------------------------------------------------------------------------------------------------
FORCE
6. The Applicant most humbly contends that Grasona by way of its air force carried
out bombings on the territory of the Mazia on 21 July 2017 which was in the nature of
military force.16 Art. 51 authorizes the right of states to exercise self defense against
the use of force17 in response to “an armed attack”.18 However, such an exception
cannot be invoked in this case by virtue of the following substantiation.
1. BOMBINGS OF 21 JULY 2017 WERE NOT VALID EXERCISE OF RIGHT TO SELF DEFENSE
7. Invocation of self-defense by a state first demands that it necessarily suffered
attacks of sufficient gravity to constitute an armed attack.19 Secondly, the armed
attack must have been perpetrated by another state.20 Lastly, the state's use of self-
defense must conform to the customary principles of necessity and proportionality.21
Grasona's use of force on Mazia does not satisfy the aforementioned conditions.
Thereby, its claim of justifying the bombings as a measure of self-defense stands
without merit.
a) ABSENCE OF AN ARMED ATTACK
8. Art. 51 of the UN Charter expressly requires the occurrence of an “armed attack”
as a condition for the exercise of self-defense.22 An ‘armed attack’ demands the
sending by or on behalf of a State armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount
to an actual armed attack conducted by regular forces.23 Such attack requires
attribution of the same to a State and sufficient gravity so as to amount to an actual
armed attack. Applicant submits that both the elements are absent in the present
case.
(i) SELF DEFENSE CANNOT BE INVOKED AGAINST A NON- STATE ACTOR
9. This Hon'ble Court24 as well as scholars25 have maintained that non-State actors
cannot commit “armed attacks” under Art. 51 of the U.N. Charter. In Legal
Consequences of the Construction of a Wall, the ICJ has stated that Art. 51 applies “in
the case of an armed attack by one State against another State.”26 Further, in the
Armed Activities case, this Court affirmed that in absence of satisfactory proof with
respect to the involvement of the State in an attack, an armed attack against a non-
State actor would not come within the ambit of self defense under Art. 51 of the UN
Charter.27
10. Under its own claim, Grasona maintains to have acted in self defense against
AUF. However, in consideration of the substantiation provided above, the Applicant
submits that such invocation of the right to self defense lies only against a State, and
not against non-State actors. Alternately, even if Grasona contends that they have the
right to invoke self defense on the ground of attributability of the attacks to Mazia, the
Applicant submits that no such attribution exists.
b) THE CONDUCT OF AUF CANNOT BE ATTRIBUTED TO MAZIA
11. The conduct of AUF cannot be attributed to Mazia as Mazia did not exercise any
control over the AUF which is substantiated on the following grounds:
(i) MAZIA DID NOT EXERCISE “EFFECTIVE CONTROL” OVER AUF
12. The Court in Nicaragua recognized “effective control” as the standard for
attributing to a State the acts of a non-State armed group,28 which was reaffirmed in
Democratic Republic of Congo v. Uganda29 and Bosnia & Herzegovina v. Serbia &
Montenegro.30 The test coincides with Art. 8 of ARSIWA31 which demands non State
actors to act on the instructions of, or under the direction or control of, that State in
carrying out the conduct. In the present case, AUF is an independent entity that was
functioning without any instructions of, or under the direction or control of Mazia. The
responsibility of the state is confined to acts of its organs and agencies exercising
public authority.32 AUF is not an organ or agency of Mazia, therefore absolving the
responsibility of Mazia.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
13. Furthermore, effective control may be inferred from the fact that the leaders of
the group were selected by the State, and from other factors such as the
“organization, training, and equipping of the force, planning of operations, the
choosing of targets, and the operational support provided to such group by the
State.33 A general situation of dependence and support would be insufficient to justify
attribution of the conduct to the State.34 In this case, Mazia did not train, equip or
plan the operations of AUF, nor did it it engage in choosing of targets. This rules out
Mazia's effective control and negates any degree of assistance on the part of Mazia to
AUF. Thus, AUF's activities are not imputable to Mazia. The mere presence of AUF in
the territory of Mazia does not establish the effective control of the latter so as to
impute the conduct of the former on Mazia.
(ii) MAZIA DID NOT EXERCISE OVERALL CONTROL OVER AUF
14. The Applicant submits a State must wield “overall control” over the group not
only by equipping and financing the group but also by coordinating or helping in the
general planning of its military activity.35 Mazia neither coordinated nor planned the
conduct of AUF. Therefore, Mazia cannot be held liable for acts of AUF.
(iii) MAZIA DID NOT ACKNOWLEDGE OR ADOPT AUF'S ACTS
15. Additionally, the Applicant submits that pursuant to Art. 11 of UNGAR. 56/83,
an initially private conduct becomes an act of the State only if, and to the extent, that
the State acknowledges and adopts the conduct as its own.36 In this case, Mazia
expressly undertook to take necessary action and punish the offenders as opposed to
acknowledging or adopting the alleged acts of AUF,37 which signifies its disapproval of
the attack irrespective of the perpetrator of the same.
IN ARGUENDO, THERE WAS AN ARMED ATTACK BY AUF
16. Assuming but not conceding that there was an armed attack, the violation of
sovereignty of Mazia is unjustified as the acts of AUF are not attributable to Mazia. Art.
51 of the UN Charter does not extend to the ancillary infringement of sovereignty.38
The act of bombing resulted in civilian casualties in two villages which highlights the
absolute disregard shown by Grasona of the sovereignty and territorial integrity of
State of Mazia. Art 51 being an exception toArt. 2(4) which lays down the prohibition
on the use of force against a State requires Grasona to respect the sovereignty and
territorial integrity of Mazia in events where the acts of AUF as a non-State actor can’t
be attributed to Mazia as a State. Therefore, infringement of soverienty of Mazia stands
unjustified as per the provisions of Charter.
[C] GRASONA DID NOT COMPLY WITH THE PRINCIPLE OF NECESSITY AND
PROPORTIONALITY UNDER THE EXERCISE OF SELF-DEFENSE
1. GRASONA VIOLATED THE PRINCIPLE OF NECESSITY
17. According to Art. 25 of ARSIWA, “necessity” is used to denote those exceptional
cases where the only way a State can safeguard an essential interest threatened by a
grave and imminent peril is, for the time being, not to perform some other
international obligation of lesser weight or urgency.39 Referring to Art 25 of ARSIWA
the Court in Advisory Opinion on the Wall and Gab?Íkovo-Nagymaros stated that
necessity as ground to preclude wrongfulness can only be accepted in “exceptional
basis” and “can only be invoked under certain strictly defined conditions which must
be cumulatively satisfied; and the State concerned is not the sole judge of whether
those conditions have been met.”40
18. The Applicant most humbly submits that Grasona conducted bombings over
Mazia on 21 July 2017 in absence of a “grave or imminent peril” to essential interest of
security. Isolated incidents of sucide bombing that which took place fifteen days
before the aerial bombings carried on by Grasona does not constitute grave or
imminent peril on account delay. It is further submitted that Grasona was under the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
obligation to respect the sovereignty and territorial intergrity of Mazia.

19. It is further submitted that neccessity mandates, inter alia, enhanced
requirements regarding immediacy of response and exhaustion of peaceful remedies.41
In the present case forcible measures undertaken by Grasona were unwarranted in
view of the absence of immediacy and availability of realistic alternative means of
redress not involving use of force under Chapter VI of the Charter.42
2. GRASONA VIOLATED THE PRINCIPLE OF PROPORTIONALITY
20. The Applicant most humbly submits that Grasona's right to self defense cannot
be prioritised over endangering the lives of civilians in the villages and associated
collateral damage. The mode of response adopted by Grasona i.e aerial bombings
significantly escalated the civilian hostilities and points towards disproportionate use
of force. The result of bombings indicate that the use of force was beyond a defensive
purpose.43
21. Taking into consideration the functional requirement of proportionality which
requires a state's use of force must be confined to defensive purposes, it is further
submitted that the bombings were carried in two rounds, in which second rounds of
bombing spefically resulted in casualities beyond AUF training centres, thereby being
excessive and beyond defensive purposes.44
22. Further, Grasona cannot justify its actions under the Caroline test which sets
out the requirements of necessity and proportionality45 in self-defense.46 According to
this test, necessity exists when the situation is instant, overwhelming, leaving no
choice of means and no moment of deliberation47 while proportionality means that a
State must use the force strictly confined to defensive purposes.48 Grasona, without
prior efforts to resolve the issue peacefully through UN Security Council, attacked
Mazia in a devastating manner, leaving civilians dead.49 As Grasona's attack was
neither necessary nor proportionate, self-defense is unjustified.
[D] GRASONA'S FAILURE TO IMMEDIATELY NOTIFY THE SECURITY COUNCIL ESTOPS IT
FROM CLAIMING THAT THE ATTACK IS JUSTIFIED BY SELF-DEFENSE
23. Art. 51 of the UN Charter requires states resorting to the use of force in self-
defense to immediately report to the Security Council.50 The Charter's notice
requirement serves the purpose of informing the Security Council of the specific
justifications for the use of force, thus enabling the Council to gauge whether the
military action was necessary and proportional.51 This Court held in Armed Activities
case that, failure to notify the Security Council of military actions prohibits the reliance
on doctrine of self-defense to justify use of force.52 Grasona's failure to comply with
the above requirement indicates that it was itself not convinced of acting in self-
defense.53 Such failure points towards its deliberate omission to do away with the
procedural checks under the Charter to facilitate brazen use of force. Accordingly, the
failure to provide the required immediate notice to the Security Council disqualifies
Grasona from relying on self-defense as justification. The absence of an armed attack
coupled with Grasona's failure to report the same negates Grasona's claim of self-
defense.
[E] GRASONA DID NOT RECEIVE SECURITY COUNCIL AUTHORIZATION FOR THE AIR
STRIKES RENDERING THE ATTACK UNLAWFUL
24. Under Chapter VII of the Charter, the Security Council has the sole authority to
determine when a threat to, or breach of, the peace has occurred54 and thus to
authorize the use of force.55 Absent such authorization, any subsequent use of force
will be unlawful.56 Grasona decided unilaterally to use force on Mazia's territory without
having obtained the requisite authorization under the Charter rendering its act
unlawful.
[F] THE RESPONDENT'S ACTIONS CANNOT BE JUSTIFIED UNDER THE “UNABLE OR
UNWILLING” TEST
-----------------------------------------------------------------------------------------------------------------------------------------------------------
25. The Applicant submits that Grasona cannot invoke the ‘unable or unwilling’ test
and the same is substantiated in two limbs:
1. UNABLE OR UNWILLING TEST IS NOT A PART OF CIL
26. In order for a norm to constitute CIL, the requirement of “evidence of a general
practice accepted as law” as recognized under Article 38 (1)(b) of the ICJ Statute
needs to be fulfilled. The Applicant submits that the unable and unwilling test has not
been crystallized into CIL. There is an absence of common opinio juris shared by the
States themselves that have acted in pursuance to the test.57
27. The doctrine has been repudiated in both practice and official government
statements.58 In sum, there is no evidence to reflect widespread state practice59 and
opinio juris that is required to corroborate claims regarding the establishment of new
principles of CIL.60 On the contrary, there has been inconsistent state practice
regarding the application of the unable and unwilling test on account of widespread
condemnation by states61 which affirms the ambiguity of its execution under CIL.
2. REQUIREMENTS OF THE DOCTRINE ARE NOT MET
28. Even if the Respondent places reliance on the Corfu Channel case in contending
Mazia's obligation not to knowingly allow its territory to be used for acts contraty to
the right of other states,62 there exists no corresponding right to breach Mazia's
sovereignty and territorial integrity in case of failure of the obligation.63 Further, ICJ
held in both the Israeli Wall Advisory Opinion as well as in Armed Activities Case that
if an attack by non-State actors cannot be attributable to a host state, the use of force
in self defense by the victim state without consent by the host state is illegal and
therefore cannot be justified by arguing that the host state is unwilling or unable to
assist.64 Consent was not obtained from Mazia in respect of the attack by Grasona and
as has been substantiated above, the explosions on the territory of Grasona can not be
attributed to Mazia.
29. The doctrine cannot be invoked if the host state demonstrate willingness to
remove the non state actor. If the territorial State would not cooperate or give its
consent, this would be an indication of its unwillingness.65 The priority for consent and
cooperation is also a way of ensuring that victim States do not resort to force too
hastily, thus respecting the general prohibition in Art. 2(4). Mazia expressly exhibited
its willingness to cooperate by stating that they would take necessary action and
punish the culprits responsible for the bombings in Grasona.66
Issue II: That Grasona's bombings on the civilian localities and killing of civilians
during the second round of bombings on 21 July 2017 on the territory of Mazia
amounted to a violation of the four Geneva Conventions and the Additional Protocol I
of 1977 and other international laws.
30. The Applicant most humbly contends that there exists an armed conflict of an
international character following which Grasona violated the principle of distinction67
and the principle of proportionality’68 for bombing civilian localities and killing civilians
on the territory of Mazia. The bombings failed to make the required distinction and
were in excess of concrete and direct military advantage.
[A] EXISTENCE OF AN INTERNATIONAL ARMED CONFLICT
31. An armed conflict exists whenever there is a resort to armed force between
States.69 Common Article 2 to the four 1949 GC provides that they ‘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’. On 21 July 2017, Grasona launched an offensive against Mazia wherein GAF
bombed six locations in the territory of Mazia. On the same day GAF conducted
another round of bombings resulting in the killings of civilians in two villages at the
border. An armed conflict can arise when one State unilaterally uses armed force
against another State even if the latter does not or cannot respond by military means.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
The fact that Grasona resorted to armed force against Mazia suffices to qualify the
situation as an IAC within the meaning of the Geneva Conventions.
32. No formal declaration of war or acknowledgement of the existence of an armed
conflict is required for the application of the Convention. The determination of the
existence of an armed conflict within the meaning of Article 2(1) must be based solely
on the prevailing facts demonstrating the de facto existence of hostilities between the
belligerents, even without a declaration of war.70 It is humbly submitted that there
existed a de facto armed conflict as two rounds of bombings conducted by Grasona
amounted to resort of armed force.
33. It humbly submitted that the armed force in the form of bombings was directed
at the territory and the population of Mazia which constitutes a resort to armed force
against Mazia. When classic means and methods of warfare - such as resort to
jetfighters come into play, it is uncontroversial that they amount to an armed
confrontation between States and that the application of the Geneva Conventions is
triggered.
34. Further it is humbly submitted that in the present case the justification of
resort to armed force by Grasona in exercise of self-defense is immaterial. The
prevailing situation during material point of time involved repeated and multiple
bombings by Grasona. Whether a State uses force in accordance with its right of self-
defense, or in violation of the prohibition on the use of force does not affect the
determination of the existence of an international armed conflict. The mandate and the
actual or perceived legitimacy of a State to resort to armed force are issues which fall
within the province of jus ad bellum, and have no effect on the applicability of IHL to a
specific situation involving two or more High Contracting Parties. Therefore, resort to
hostile armed force by Grasona on the territory of Mazia during the prevailing
circumstances amounts to an international armed conflict.71
[B] NON-OBSERVANCE OF PRINCIPLE OF DISTINCTION BY GRASONA
35. Additional Protocol I provides for the need to distinguish between civilian
population and combatants and between civilian objects and military objectives, by
parties to the armed conflict.72 The Applicant submits that the Respondent failed to
make a distinction between the same. Bombings at the border along with the killing of
thirty two persons by Grasona indicates the non-obervance of this principle.
1. EXISTENCE OF CIVILIAN POPULATION AT THE BORDER
36. The Core Committee members of FRU went into hiding following the arrests of
people belonging to FRU. The place of hiding was reported to be the forest adjoining
the border with Mazia.73 The second round of bombings took place at the border as
declared74 and confirmed by the international media.75 The Applicant submits that that
the demographic composition at the border comprised of civilian population with the
presence of FRU members who were not combatants. Additionally, with respect to the
killings of thirty-two persons in bombings near the border as reported by the
international media, it is submitted that such ‘persons’ shall be considered as civilians
pursuant to AP I, 1977.76 In both scenarios of FRU members or persons reported by
the media as being present at the border, the Applicant contends that both were
civilians. Therefore, the second round of bombings by Grasona resulting in killing of
civilians is hence in violation of the principle of distinction.
2. MEMBERS OF FRU AND AUF ARE NOT COMBATANTS UNDER IHL
37. Combatants are members of the armed forces of a party to the conflict as well
as members of militias or volunteer corps forming part of such armed forces.77 Both
AUF and FRU do not constitute a part of armed forces, neither do they satisfy the
conditions of being members of militias or volunteer groups. Even if it is presumed,
that the thirty two persons killed at the border were members of AUF or FRU, such
presumption does not warrant their killing as neither of them are combatants as is
-----------------------------------------------------------------------------------------------------------------------------------------------------------
substantiated below by the Applicant.

38. First, with respect to AUF, the Respondent submits that there exists the
requirement of a responsible leader within an organizational structure, with its essence
being to provide ‘reasonable assurance’ that the other three conditions under Art. 4
are observed.78 In the instant case, AUF does not provide any such reasonable
assurance with regards to the fulfillment of the other conditions, nor is there a
hierarchy of command within AUF. This negates the condition of command by a person
responsible for his subordinates.
39. Secondly, AUF fails to meet the distinctive sign requirement. Such requirement
is met by an armband, an insignia, a distinctive headgear or coat,79 which entails the
purpose of making a distinction between civilians and combatants.80 The Respondent
submits that AUF does not identify as having a distinctively visible sign which
distinguishes itself from civilians. It is essentially an organization for the assertion of
cultural and ethnic identity of Faronas.81 Thereby, the condition of a fixed distinctive
sign to be recognized as a combatant is not met.
40. Thirdly, AUF does not meet the requirement of carrying arms openly which
again demands the distinction of combatants during their operations against the
enemy.82 There is no trace of AUF carrying arms within Mazia or indulging in
operations, thereby affirming its lack of distinction from civilians.
41. Lastly, the Respondent submits the condition that irregular forces are to comply
with laws and customs of war83 is not sufficed as AUF does not constitute an irregular
force itself by the virtue of not satisfying the aforementioned conditions.
42. Similarly with respect to FRU, the Respondent submits that there is no sign of
FRU carrying arms or any fixed distinctive sign which would distinguish the same as
combatants. The basis of establishment of FRU was the articulation of demands and
attainment of representation in political participation of Faronas.84 FRU's
announcement of the intensification of demand for self-determination, and seeking
support from neigbouring states resulted in arrests following which its members went
into hiding.
43. Moreover, even after hiding, the confrontations between security forces and
groups of people belonging to FRU were based on suspicion. Again, it was only alleged
that the three persons killed in Panya belonged to FRU.85 In addition, the
pronouncement by Grasona of seventy eight militants being killed is only with respect
to the situation in Western Province. The Applicant submits that this pronouncement
exists in isolation with the presence of FRU members hiding in the forest adjoining the
border which covered only 30% of the Western Province. The presence of mere
suspicions and the lack of indicative factors dilutes the status of members of FRU as
combatants.
IN ARGUENDO, MEMBERS OF FRU ARE COMBATANTS UNDER IHL
44. Assuming but not conceding, that members of FRU are combatants under IHL,
it is humbly submitted that they would retain their civilian status under the “notion of
direct participation in hostilities.”86 Applicant submits that the demand put forth by
FRU to exercise the right of self-determination was well within the legal ambit of IHRL
as can be referred from ICCPR87 and ICESCR88 . Even if it is assumed that members of
FRU were engaging in uprisings or resistance movements,89 they would not be
regarded as combatants.90 Members of FRU went into hiding following the arrests by
Grasona for their struggle to demand the right to self determination. This evidences
that the members did not directly participate in the hostilities. Individuals whose
continuous function involves the preparation, execution, or command of acts
amounting to direct participation in hostilities assume a continuous combat function.91
45. The act of hiding following the crackdown in the form of arrests implies that the
members of FRU had ceased to assume their continuous combat function.92 The
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Respondent submits that leading up to the hiding, there is no evidence of armed

violence that can be attributed to FRU. Even post the hiding, the confrontations
between FRU and security forces were premised on mere suspicions and remain
unsubstantiated. In the context of subsequent attacks on Grasona, which it attributes
to AUF, there is an ambiguity to the attributability of the attacks in Grasona to FRU
from the border adjoining Mazia.
3. ABSENCE OF MILITARY OBJECTIVE
46. Parties to the conflict are to distinguish between civilian objects and military
objectives.93 Military objectives are “those objects which by their nature, location,
purpose or use make an effective contribution to military action and whose total or
partial destruction offers a definite military advantage.”94 Such advantage demands a
concrete and perceptible military advantage rather than a speculative one.95 Making
civilians the objects of attack has been specifically prohibited under AP I.96
47. The Applicant contends that the bombings near the border have been confirmed
by the international media and are uncontested by Grasona since their only claim is
that AUF centres were attacked. Further, in response to the statement made by Mazia
regarding the bombings hitting civilian localities, Grasona only denied the allegation of
civilian casualties.97 This implies that there were civilian localities present at the site of
the bombings.
48. First, the bombings by Grasona did not take into consideration the civilian
population of the members of FRU near the border. By carrying out bombings in
civilian localities, they targeted civilian objects98 and disregarded the civilians at the
site, thereby, violating AP I. Second, Grasona's military objectives were only with
respect to AUF in regard to their military action. The presence of members of FRU
adjoining the border did not contribute to the military action, neither did it offer a
definite military advantage. Therefore, the second round of bombings resulting in
killings of civilians had no military objective and failed to meet the principle of
distinction.
[C] GRASONA'S BOMBINGS VIOLATED THE PRINCIPLE OF PROPORTIONALITY
49. IHL mandates that the use of force must be proportional with respect to the
expected military advantage.99 It is most humbly submitted that the second round of
bombings could not be justified on the grounds of neccessity and they were in excess
of direct and concrete military advantange. Further, no neccessary precautionary
measures were taken by Grasona during the air bombings and the same was in
complete violation of the precautionary principle.
1. THE SECOND ROUND OF BOMBINGS BY GRASONA WERE EXCESSIVE
50. Under the principle of military necessity, use of force by states is impermissible
unless “imperatively demanded by the necessities of war,”100 for which there is no
equivalent alternative.101 First, the second round of bombings was not imperatively
demanded by the necessities of war as Grasona had already bombed six locations in
Mazia.102 Therefore, following the first round of bombings, the circumstances did not
necessitate the use of such force. Second, the aerial nature of bombings carried out by
Grasona clearly indicate that no attempt was made on the part of Grasona to use less
destructive means for eliminating AUF centres, even in the presence of civilian
localities. This evidences that Grasona did not abide by the principle of proportionality.
2. SECOND ROUND OF BOMBINGS WERE IN EXCESS TO THE DIRECT MILITARY ADVANTAGE
51. According to the principle of proportionality, civilian lives and the value of
military advantage should be balanced in a way that does not inflict excessive harm
upon civilians.103 Excessiveness is to be determined according to “an overall
assessment of the totality of civilian victims as against the goals of the military
campaign.”104 The “directness” of the military advantage reflects the advantageous
results of the acts of the armed forces.105
-----------------------------------------------------------------------------------------------------------------------------------------------------------
52. Post the first round of bombings, Grasona had advanced in its goals and was
already in an advantageous position by bombing six locations eliminating AUF centres
and killing militants. After that, to carry out bombings again at the site of border
where civilian localilities and population was present exceeded the military advantage.
53. IHL prohibits launching attacks “which may be expected to cause incidental loss
of civilian life, injury to civilians, damage to civilian objects which would be excessive
in relation to the concrete and direct military advantage anticipated.”106 The presence
of civilian localities as well as members of FRU in the forest adjoining the border along
with the killing of thirty-two civilians indicate that the second round of bombings
caused disproportionate harm, thereby violating the principle of proportionality.
3. NO PRECAUTIONARY MEASURES WERE TAKEN BY GRASONA IN CARRYING OUT THE
BOMBINGS
54. Precautionary principle mandates taking “all feasible precautions in the choice
of means and methods of attack with a view to avoiding incidental loss of civilian life,
injury to civilians and damage to civilian objects.107 An attack must be carefully
planned and factors affecting its impact on the civilian population are to be taken into
account.108 Feasibility demanded Grasona to give effective advance warning prior to an
attack which would affect the civilian population.109
55. The Applicant most humbly contends that no prior warning was given by
Grasona despite the fact that civilian localities were going to be targeted. Moreover,
the nature of attacks were in the form of aerial bombardments which did not take into
account the potential civilian casualties with respect to presence of civilian localities,
thereby going against the principle.
PRAYER FOR RELIEF
For reasons stated above, the Applicant hereby requests the Court to adjudge and
declare that:
I. Grasona's bombings on the territory of Mazia on 21 july 2017 are in violation of
the sovereignty and territorial integrity of Mazia and amounted to violation of the
provisions of the United Nations charter on the use of force and other relevant
international law, and
II. Grasona's bombings on the civilian localities and killing of civilians during the
second round of bombings on 21 july 2017 on the territory of Mazia amounted to
a violation of the Four Geneva Conventions and the Additional Protocol I of 1977
and other international laws, and
III. Any other Relief which this Hon’ble Court may deem fit in the interest of
justice.
All of which is respectfully submitted
———
1 Art. 1, Special Agreement submitted to the International Court of Justice by the State of Maziaand the
Republic of Grasona on the differences between them concerning the military attacks by the State of Mazia and
by the Republic of Grasona.
2 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in
Accordance with the Charter of the United Nations, G.A. Res. 2625(XXV), GAOR, 25th Sess., Supp. No. 28, at
121, U.N. Doc.A/8082 (1970; Brownlie, Principles of Public International Law, 298 (2003); Shaw, International
Law, 572 (2003); Henkin, International Law Cases and Materials, 12 (1993); Schacter, International Law in
Theory and Practice, 12 (1993); Higgins, Problems and Process, 4 (1994).
3U.N. Charter art. 2, para. 4; Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States
and the Protection of Their Independence and Sovereignty, G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No.
14, at 12, U.N. Doc.A/6220 (1965); Declaration on Principles in International Law, G.A. Res. 2625(XXV); 1
Oppenheim, International Law, 334 (Jennings & Watts, eds., 1999).
4McDougal & Feliciano, The International Law of War, 177 (1st edn. Martinus Nijhoff Dordrecht, 1994); Corfu
Channel Case (United Kingdom v. Albania), Merits, 1949 ICJ 34 (9 April).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
5 Lachs, The Development and General Trends of International Law in Our Time, 169 RDC 9, 324 (1980).
6Corfu Channel Case (United Kingdom v. Albania), Merits, 1949 ICJ 4, 109 (9 April); 159, Arechaga, International
Law in the Past Third of a Century, RDC 1, 9 (1978).
7 Brownlie, International Law and the Use of Force by States, 266 (1963).
8 Brownlie, General Course on Public International Law, 255 RDC 9, 199 (1995).
9
Compromis, ¶1.
10 G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631, at 142 (Dec. 14, 1974).
11 UN Charter art. 2 para 4.
12 G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631, at art. 1 (Dec. 14, 1974).
13U.N. Charter art. 2, para. 7; G.A. Res. 2131, U.N. GAOR 20th Sess., Supp. No 14, U.N. Doc. A/6014, at 11
(1966).
14U.N. Charter, art. 2 para 4; The Crime of Aggression, annex 2, Kampala Special Working Group on the Crime of
Aggression, art. 8, 13th plen. mtg, June 8-11, 2010, U.N. Doc. RC/Res.6(June11, 2010). 15 Compromis, ¶ 14.
15 Compromis, ¶ 14.
16
Compromis, ¶ 14.
17 UN Charter, art.51.
18 U.N. Charter, art. 51.
19
U.N. Charter, art. 51; Military and Paramilitary Activities in and Against Nicaragua ) (Nicar. v. U.S.) (Merits),
1986 I.C.J., ¶ 195(June 27).
20
U.N. Charter, art. 51.
21 Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 94, ¶ 176
(June 27); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 245, ¶ 41(July 8); C.
Gray, International Law and the Use of Force, 150 (3rd edn, 2008).
22 Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 103, ¶195
(June 27).
23
Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 103, ¶194-195
(June 27).
24 Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 103 ¶195
(June 27).
25
Ian Brownlie Supra note 7, at 244-45; Tom Ruys, Armed Attack' And Article 51 of The U.N. Charter 485, 486-
87 (2010); Antonio Cassese, The International Community's ‘Legal’ Response to Terrorism, 38 I.L.C.Q. 589, 597
(1989).
26
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004
I.C.J. 136, ¶ 139 (July 9).
27Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 168, ¶ 146 (Dec.
19).
28Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 65, ¶ 115 (27
June).
29Case Concerning Armed Activities on The Territory of The Congo (Democratic Republic of The Congo v.
Uganda), 2005 I.C.J. 226 ¶160 (19 December).
30Application 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, ¶398-415 (26 Feb.).
31Antonio Cassese, The Nicaragua and Tadiæ Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia,
18 EJIL, Sep. 649, 668 (2007).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
32Certain Questions Relating to the Settlers of German Origin in the Territory Ceded by Germany to Poland,
Advisory Opinion, 1923 PCIJ (ser.B) No. 6, at 22 (September 10); J. Crawford, State Responsibility: The General
Part, 141 (2013).
33Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 63, ¶112 (27
June).
34Military and Paramilitary Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 63-65, ¶109,
112, 115 (27 June).
35 Prosecutor v. Tadiæ, Case No. IT-94-1-A, 56 ¶131 (Int'l Crim. Trib. for the Former Yugoslavia July 15, 1999).
36Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and
Commentaries, 121 (2002).
37 Compromis, ¶12.
38 Wee Yen Jean, The Use of Force Against Non-State Actors: Justifying and Delimiting the Exercise of the Right
of Self-Defence, 9 S.L.R (December 6, 2017), http://www.singaporelawreview.com/juris-
illuminaeentries/2017/the-use-of- force-against-non-state-actors-justifying-and-delimiting-the-exercise-of-the-
right-ofselfdefence.
39Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 25, UN GAOR 53rd Sess.
Supp. (No. 10) at 43, U.N. Doc. A/56/10 (2001).
40Gabéíkovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 40, ¶51 (25 Sep); Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Advisory Opinion ¶140 (9 July).
41Oscar Schachter, The Lawful Resort to Unilateral Use of Force, YaleJIntlL., 1985, at 291, 292; Judith Gardam,
Necessity, Proportionality and the Use of Force by states, 147-55 (2004).
42 Ruys, Supra note 25, at 95.
43Gardam, Supra note 41; O'Connell, The Influence of Law on Sea Power, 64-5 (1975), Ruys, Supra note 25, at
123.
44Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law, JC&SL, 509, 511 (2006); Supra
note 21.
45 Caroline Case, 29 British and Foreign State Papers (1841), 1137-1138 (28 May 2019),
http://avalon.law.yale.edu/19th-century/br-1842d.asp; Theodora Christodoulidou & Kalliopi Chainoglou, The
Principle of Proportionality in Self-Defence and Humanitarian Intervention, 20 JILPAC 79 (2007).
46
Michael Byers, Terrorism, the Use of Force and International Law after 11 September, 51 I.L.C.Q. 401 (2002).
47
Elizabeth Wilmshurts, Principles of International Law and the Use of Force by States in Self-Defense, 9 (2005).
48Moussa, Can jus ad bellum override jus in bello? Reaffirming the separation of the two bodies of law, 90 IRRC,
963, 979 (2008).
49
Compromis ¶ 14.
50
U.N. Charter, art. 51.
51 Ruys, Supra note 25, at 517.
52
Case Concerning Armed Activities on The Territory of The Congo (Democratic Republic of The Congo v.
Uganda), 2005 I.C.J. ¶ 145 (19 December).
53U.N. Charter, art. 51; Gray, International Law and The Use Of Force 100 (2004); Military and Paramilitary
Activities in and Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 121-122, ¶235 (June 27).
54 UN Charter, art. 39.
55
UN Charter, art. 2 para 4; Cassese, International Law in a Divided World, 215 (1st edn. Clarendon Press,
Oxford 1988).
56De Wet, The Chapter VII Powers of the United Nations Security Council 268 (1st edn. Hart Publishing, Oxford
2004); Legal Consequences for States of the Continued Presence of South African Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (Advisory Opinion) 1971 ICJ 16, ¶ 35 (21 June).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
57 Corten, O., The ‘Unwilling or Unable’ Test: Has it Been, and Could it be, Accepted? 29 LJIL, 777-799 (2016).
58
Alonso Gurmendi, Leticia & Pancho: The Alleged Historic Precedents for Unwilling or Unable in Latin America,
Explored (Part I, Leticia), OPINIO JURIS (Nov. 7, 2018), http://opiniojuris.org/2018/11/08/leticiapancho-the-
alleged-historic-precedentsfor-unwilling-or-unable-in-latin-america-explored-part-ii-pancho-villa/
[https://perma.cc/8PUV-ZFVQ] (Feb. 6, 2019); Alonso Gurmendi, State Practice regarding Self-Defence against
Non-State Actors: An Incomplete Picture, OPINIO JURIS (Oct. 22, 2018), http://opiniojuris.org/2018/10/17/state
-practice-regarding-self-defenceagainst-non-state-actors-an-incompletepicture/[https://perma.cc/AQ6F-STVN]
(archived Feb. 6, 2019); Alonso Gurmendi, The Latin American View of Jus ad Bellum, JUST SECURITY (May 16,
2018), https://www.justsecurity.org/56316/latin-americanviewjus-ad-bellum/ [https://perma.cc/7NEE-49B5]
(archived Feb. 6, 2019).
59
Ashley S. Deeks, Unwilling or Unable: Toward a Normative Framework for Extraterritorial Self-Defense, 52
VaJIntIL 483, 505 (2012).
60
Shaw, Supra note 2, at 60-62; Karol Wolfke, Custom in Present International Law, 162-67 (1993); Jutta
Brunnée & Stephen J. Toope, Self-Defence against Non-State Actors: Are Powerful States Willing but Unable to
Change International Law?, 67 ILCQ 263, 276-77 (2018).
61
Corten, Supra note 57, at 777-799; Tom Ruys & Sten Verhoeven, Attacks by Private Actors and the Right of
Self-Defense, 10 JC&SL 289 (2005).
62 Corfu Channel Case (United Kingdom v. Albania); Merits, 1949 I.C.J. (April 9).
63Madeline Holmqvist Skantz, The Unwilling or Unable Doctrine- The Right to Use Extraterritorial Self- Defense
Against Non-State Actors (2017) (on file with Stockholm University).
64
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004
I.C.J. 1, ¶ 138-140 (July 9); Case Concerning Armed Activities on The Territory of The Congo (Democratic
Republic of The Congo v. Uganda) 2005 I.C.J. 222, ¶ 146 (19 December).
65 Deeks, Supra note 59, at 519.
67
Geneva Convention Relating to the Protection of Victims of International Armed Conflicts, art. 48, June 8,
1977, 1125 UNTS 3.
68Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), art. 51 ¶ 5, June 8 1977, 1125 UNTS 609
69
The Prosecutor v. Dusko Tadiæ, Case no. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction, ¶70 (Intl. Crim. Trib. for the Former Yugoslavia Oct. 2, 1995); Prosecutor v. Delaliæ, Case No. IT-
96-21-T, ¶ 183 (Int'l Crim. Trib. for the Former Yugoslavia November 16, 1998).
70
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
art.2, 1949, 12 August, 75 UNTS 31.
71
D. Akande, Classification of Armed Conflicts: Relevant Legal Concepts, (E. Wilmshurts (ed), Oxford University
2012) (1478).
International Armed Conflicts (Protocol I), art. 48, June 8 1977, 1125 UNTS 609; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J., ¶ 78 (July 9).
73
Compromis, ¶ 9.
75
Compromis, ¶ 14.
76
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), art. 50, June 8 1977, 1125 UNTS 609.
77 Geneva Convention Relative to the Treatment of Prisoners of War, art. 4A ¶1, 12 August, 1949, 75 UNTS 135.
78J.S. Pictet, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War, ¶59
(Geneva, ICRC 1960).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
79
Trial of Kurt Meyer, “The Abbaye Ardenne Case,” 4 REP. U.N. COMM'N 97 (Can. Mil. Ct., Aurich, Germany,
1945); Trial of Wilhelm Von Leeb, ”The German High Command Trial,” 12 REP. U.N. COMM'N 1 (U.S. Mil. Trib.,
Nuremberg, 1948).
80 Toni Pfanner, Military Uniforms and The Law Of War, 86 IRRC 106(2004).
81 Compromis, ¶ 5.
82
W. Thomas Mallison Sally V. Mallison, The Juridical Status of Irregular Combatants under the International
Humanitarian Law of Armed Conflict, 9 CaseWResJIntlL, 58 (1977).
83 H. Fischer, Yearbook of International Humanitarian Law, 2005 (T.M.C. Asser Press) 77.
84 Compromis, ¶ 3.
85
Compromis, ¶ 10.
86Nils Melzer, Interpretive guidance on the notion of direct participation in hostilities under international
humanitarian law, International Committee of the Red Cross (ICRC), (2009).
87 International Covenant on Civil and Political Rights (ICCPR), art. 1, Dec 19 1966, 999 UNTS 171.
88
International Covenant on Economic, Social and Cultural Rights (ICESCR), art. 1, Dec 16 1966, 993 UNTS 3.
89 Medicin Sans Frontiers (Doctors without Borders), The Practical Guide to Humanitarian Law; (Dec 9 2009)
https://guide-humanitarian-law.org/content/article/3/civilians/.
International Armed Conflicts (Protocol I), art. 13 ¶ 3, art. 45 ¶ 1, art. 51 ¶ 3, June 8 1977, 1125 UNTS 609.
91
Corn & Jenks, Two Sides of the Combatant Coin: Untangling Direct Partcipation in Hostilities from Belligerent
Status in Non-international Armed Conflicts, 33 U.Pa.J.Int'lL 313, 338(2011).
92Nils Melzer, Interpretive guidance on the notion of direct participation in hostilities under international
humanitarian law, International Committee of the Red Cross (ICRC), 27(2009).
95Waldemar Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to
the Geneva Conventions of 1949, (Martinus Nujhoff Publishers 326 1982).
International Armed Conflicts (Protocol I), art. 51 ¶ 2, June 8 1977, 1125 UNTS 609.
98
Frits Kalshoven & Liesbeth Zegveld, Constraints on the Waging of War, (4th ed., ICRC).
99Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392, ¶176, 194 (Nov.
26); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2004 I.C.J., ¶30,41 (July 9).
100The Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations
Concerning the Laws and Customs of War on Land, art. 23(g), Oct 18 1907, 1 Bevans 577.
101Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of an Armed
Conflict, art 6 ¶ 1, March 26, 1999, 2253 U.N.T.S 172.
103 Hilly Moodrick-Even Khen, Reaffirming the Distinction Between Combatants and Civilians: The Cases of The
Israeli Army's “Hannibal Directive” and The United States' Drone Airstrikes Against ISIS, 33 Ariz.J.Int'l &Comp.L.
765, 778 (2016).
104International Criminal Tribunal for Former Yugoslavia, Final Report to the Prosecutor by the Committee
Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, (November 10,
2008).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
105 Hugo Slim, Why Protect Civilians? Innocence, Immunity and Enmity in War, 79 Int'l Aff. 481, 486 (2003).
Western Front, Aerial Bombardment and Related Claims, Eritrea's Claim, Partial Award,Eritrea Etheopia Claims
108
Commission, 2005, ¶ 27(Dec 19).

109
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

Team Best Memorial Petitioner Nalsar Public International Sanikasunil1552 Nualsacin 20240122 082206 1 20

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Team Best Memorial Petitioner Nalsar Public International Sanikasunil1552 Nualsacin 20240122 082206 1 20

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Monday, January 22, 2024

1st NALSAR Public International Law Moot, 2021

2. GRASONA VIOLATED THE PRINCIPLE OF PROPORTIONALITY 13

(Merits) (Nicar. v. U.S.), 1986 I.C.J. (June 27)

Cassese, International Law in a Divided World, (1st edn. 14

members of FRU reported.

customary international law.

obligation to respect the sovereignty and territorial intergrity of Mazia.

substantiated below by the Applicant.

Respondent submits that leading up to the hiding, there is no evidence of armed

Commission, 2005, ¶ 27(Dec 19).

You might also like