The Moot Problem

1st Red Cross International Humanitarian Law Moot Hong Kong

OBJECTIVE:

This International Humanitarian Law (IHL) Moot is designed to raise awareness of international humanitarian issues in Hong Kong. The focus of this competition is upon the humanitarian issues and wider social issues rather than black letter law. Competitors are assessed upon their advocacy skills and basic knowledge of IHL.

The Moot Problem

(Last updated on 7^th March, 2003)

BACKGROUND

The Republic of Admardia shares its mountainous border with the Kingdom of Talengia. The citizens of Admardia are for the most part members of the Imaz religion, whereas the citizens of Talengia are primarily Zimbu. The capital City of Admardia is Clindia. The water supply for Clindia is drawn from a dam built high in the border mountains between Admardia and Talengia.

Dating back for many centuries there has been intensive distrust and animosity between the peoples of the Imaz and Zimbu religions which has from time to time led to war. There is a minority Zimbu population living in Admardia, and they have over the centuries been persecuted by the Admardians. Contained within the Admardian Zimbu minority population are known terrorists, who from time to time carry out terrorist attacks on the majority Imaz population of Admardia. Admardia has intelligence which confirms that the Zimbu terrorists in Admardia are being equipped and otherwise supported by elements of Talengia, although there is no direct evidence that the Government of Talengia is actually supporting the Admardian Zimbu terrorists. Nevertheless, President Egbert of Admardia regularly accuses the Government of Talengia of being involved, an allegation always denied by Talengia. In particular, the Government of Admardia is scathing in its public condemnation of the monarch of Talengia, King Buluzi, for his alleged failures to prevent Talengian support for Admardian Zimbu terrorist activities.

Terrorist Attack

On 26 March 2001, members of the Admardian Zimbu terrorist group released a deadly microbe into the Admardian water supply. This microbe has the capacity to spread through water at an alarming rate. It cannot be destroyed by traditional chemicals such as chlorine, and it is especially fatal for the very young and the elderly. The microbe indiscriminately killed many of the citizens of Admardia’s Capital Clindia. The Government of Admardia has known for some time that the Kingdom of Talengia has been developing biological weapons. They also know that the Admardian Zimbu terrorists could not develop such sophisticated weapons of mass destruction. It has concluded, and announced to the world, that Talengia supplied the deadly microbes to the terrorists. It vows to take revenge for this “Act of War”.

Counter Attack

True to its word, the armed forces of Admardia launch an all out attack on Talengia on the 26 June 2001. Admardia quickly over-runs Talengia. The Talengian armed forces are supported by the Zimbutanist terrorist group. The Zimbutanists are considered to be the Talengian terrorist group which has been supporting the Admardian Zimbu terrorists, including those who carried out the water supply attack on March 26.

Admardian forces captured many Zimbutantist fighters, including the commander of Zimbutantist forces, Major General Fenduz. Admardia has retained custody of these individuals with a view to facilitating their trial either internationally or domestically.

Establishment of the Tribunal

In August 2001, acting under Chapter VII of the United Nations Charter, the United Nations Security Council established the International Criminal Tribunal for the Purpose of Prosecuting Persons Responsible for Serious Violations Of International Law Committed on the Territories of Talengia and Admardia since January 2001 (Tribunal). In order to make the establishment of the new Tribunal as expeditious as possible, the Security Council decided to incorporate word-for-word the formula found in the relevant provisions concerning the crimes, organization and structure of the Tribunal from the Statute of the International Criminal Tribunal for the Former Yugoslavia into the Statute for the new Tribunal. Following careful consideration of the Final Report of the UN Commission of Experts on Allegations of Violations of International Human Rights Law Committed in the Territories of Talengia and Admardia, that was established on 1 July 2001 to investigate facts and responsibilities relating to the conflict, the Security Council decided to exclude from the material jurisdiction of the Tribunal any mention of the crime of genocide or the grave breaches of the four Geneva Conventions of 1949. Accordingly, the Tribunal has not been vested with competence to entertain argument or rule on allegations relating to the crime of genocide or the Geneva Conventions grave breaches, but only on the following crimes: 1) violations of the laws or customs of war; and 2) crimes against humanity.

In November 2001, the Prosecutor of the Tribunal issued an indictment against Major General Fenduz for: 1) violations of the laws or customs of war; and 2) crimes against humanity.

YOUR BRIEF

You have been nominated to act as either the prosecutor or defence team for Major General Fenduz in relation to both charges laid against him.

In preparing your arguments you are to assume that:

The Tribunal has been properly established according to law;
Admardia and Talengia have ratified the Geneva Conventions of 1949 and their Additional Protocols of 1977;
Issues of evidence or procedure are not relevant to your argument.

INTERNATIONAL TRIBUNAL FOR THE PROSECUTION OF PERSONS RESPONSIBLE FOR SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW COMMITTED ON THE TERRITORIES OF TALENGIA AND ADMARDIA SINCE 1 JANUARY 2001

STATUTE OF THE INTERNATIONAL TRIBUNAL

Having been established by the Security Council acting under Chapter VII of the Charter of the United Nations, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territories of Talengia and Admardia since 1 January 2001 (hereinafter referred to as “the International Tribunal”) shall function in accordance with the provisions of the present Statute.

Article 1

Competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territories of Talengia and Admardia since 1 January 2001 in accordance with the provisions of the present Statute.

Article 2

Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
attack, or bombardment, by whatever means, of undefended towns, villages, dwellings or buildings;
seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
plunder of public or private property.

Article 3

Crimes against humanity

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

murder;
extermination;
enslavement;
deportation;
imprisonment;
torture;
rape;
persecutions on political, racial and religious grounds;
other inhumane acts.

Article 4

Personal jurisdiction

The International Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present Statute.

Article 5

Individual criminal responsibility

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 and 3 of the present Statute, shall be individually responsible for the crime.
The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
The fact that any of the acts referred to in Articles 2 to 3 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

Article 6

Concurrent jurisdiction

The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of Talengia and Admardia.
The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.

Article 7

Non-bis-in-idem

No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal.
A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if:
- the act for which he or she was tried was characterized as an ordinary crime; or
- the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.
In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.

Useful Treaties and Cases

Relevant Treaties

Geneva Conventions of 12 August 1949.
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) 8 June 1977.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 26 June 1987.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972
Relevant Case Law: International Criminal Tribunal for the former Yugoslavia (www.un.org/icty)
The Prosecutor Bv- Dusko Tadic, Opinion and Judgment, Trial Chamber II, 7 May 1997 and the Separate and Dissenting Opinion of Judge McDonald.
The Prosecutor Bv- Dusko Tadic, Judgment, Appeals Chamber, 15 July 1999.
The Prosecutor Bv- Dusko Tadic, Decision on the Defence Motion on Jurisdiction, Trial Chamber II, 10 August 1995.
The Prosecutor v Dusko Tadic, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995.
The Prosecutor Bv- Anto Furundzija, Judgment, Trial Chamber II, 10 December 1998.
The Prosecutor Bv- Zejnil Delalic et al, Trial Chamber II, Judgment, 16 November 1998.
The Prosecutor v Zejnil Delalic et al, Appeals Chamber, Judgment, 20 February 2001.
The Prosecutor v Dario Kordic and Mario Cerkez, Trial Chamber III, Judgment, 26 February 2001.
The Prosecutor Bv- Tihomir Blaskic, Judgment, Trial Chamber I, 3 March 2000.
Kvocka et al. IT-98-30/1 "Omarska, Keraterm and Trnopolje Camps"
International Criminal Tribunal for Rwanda (www.un.org/ictr)
The Prosecutor Bv- Jean-Paul Akayesu, Judgment, Trial Chamber I, 2 September 1998.

Rules & Regulations

The Competition shall be run under the auspices of an Advisory Board, which shall have the power to:
- co-opt members;
- appoint a Secretary and Assistant Secretary to administer the competition;
- appoint judges; and
- amend these rules as it thinks fit.
The Competition shall be open to not more than one delegation from each participating institution.
Each delegation shall consist of four students divided into two teams of two students per team. Each delegation shall comprise one team for the Applicant and one team for the Respondent.. The roles of Applicant and Respondent will be allocated to the teams by the participating institution. The Applicant and Respondent teams of a participating institution shall argue against the Respondent and Applicant teams from the other institution respectively.
Participating students shall be either post-graduate or undergraduate law students, and must be registered with the relevant institution on the 15th day of September prior to the date upon which the moot takes place.
The Secretary shall have the sole power to determine the mooting problem to be used in the competition.
Any ambiguities apparently arising out of a mooting problem shall be brought to the attention of the Secretary within 7 days of receipt of the problem by the participating institution.
The Secretary shall have power to resolve the matter in his or her absolute discretion.
Each team shall submit a memorial for the Applicant or the Respondent, as appropriate.
Each memorial shall not exceed 1000 words in length.
A computer disc containing each memorial, together with 3 hard copies of the memorial shall be submitted to the Secretary 7 days before the Competition. The Secretary shall send copies of the memorials to the opposing delegation 2 days before the Competition.
Leading counsel for each team will be permitted to speak for no more than 20 minutes.
Junior Counsel for each team will be permitted to argue for no more than 15 minutes.
Each team may reserve up to ten minutes for rebuttal or surrebuttal. Each team shall indicate at the beginning of their oral argument, how much time they intend to reserve for rebuttal or surrebuttal. Only one member of the team may address the court in rebuttal or in surrebuttal.
The court may, in its discretion extend the time for each counsel for good cause, provided that the maximum extension for any counsel shall not exceed five minutes.
Time shall be kept by a court clerk, who will warn counsel by appropriate means when they have:
- five minutes left;
- one minute left;
- to conclude their address forthwith.
Scoring shall consist of two parts: the scoring of memorials and the scoring of the oral addresses.
Memorials shall be assessed by the competition judges. The maximum score for each memorial shall be 100.
The oral presentations shall be assessed by the competition judges. The maximum score for each counsel shall be 100.
The overall winning delegation, which shall be awarded the prize of a trophy, shall be the delegation with the highest aggregate score after combining the scores for the written and oral rounds.
The winning team, which shall be awarded the prize of a field trip to a war-torn country with the Red Cross, shall be the team with the highest aggregate score after combining the scores for the written and the oral rounds.
The counsel with the highest score in the oral round shall be adjudged the best mooter and shall be awarded the prize of a certificate.
The decision of the judges shall be final.
The Advisory Board shall have absolute discretion to resolve any question concerning the interpretation of these rules.

AWARD

The winning team will be arranged to visit one of the war-ruined countries in Asia for 5 days. All reasonable travel and accommodation expenses will be borne by sponsoring parties

JUDGING

Every effort shall be made to ensure judges are unaware of which University competitors are from until after they have judged that particular competition.

All judges must have a suitable legal qualification, or extensive relevant professional experience. The preliminary round will be heard by between one and two judges depending on availability. The finals may be heard by up to three to four judges.

Judges

We are deeply grateful that the following resourceful persons in the law profession have consented to be the judges of the Moot:

The Hon. Mr. Justice Patrick Chan, Permanent Judge of Court of Final Appeal

Mr. David Lloyd Roberts, Delegate to the Armed and Security Forces, International Committee of the Red Cross Regional Delegation for East Asia

Prof. Michael C Davis, Department of Government and Public Administration, Chinese University of Hong Kong

Mr. Anthony Francis Neoh, JP, Senior Counsel

Mr. Vincent Lo, JP, Principal, Gallant Y. T. Ho & Co. and Chairman of the Hong Kong Red Cross Blood Transfusion Service Governing Committee

Mr. Mok Yeuk Chi, Barrister

USEFUL LINKS

ACKNOWLEDGEMENT

Mr Grant Niemann, Australian Red Cross, for his permission to use the moot question.

ENQUIRY

Please contact Ms Eleanor Lam at 852-2507 7133, Fax: 852- 2824 3693 or email: eleanor.lam@redcross.org.hk, Website: www.redcross.org.hk