: ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

COUNSEL FOR THE GOVERNMENT OF BRAANOS

Team Number: II
Year: 2018
Total Word Count:

ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

Original: English Date: January 23, 2018

THE APPEALS CHAMBER

SITUATION IN ASTAFUR

The Government Counsel’s Submission in the Appeal from the Pre-Trial

Chamber’s Decision on Jurisdiction and Assignment of Victims’ Counsel

PUBLIC DOCUMENT

WRITTEN FOR THE DEFENSE

DEFENSE COUNSEL

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 \TABLE OF CONTENTS

I Summary of Issues …………. 3

II Summary of Arguments …………. 4

III Written arguments …………. 5

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 SUMMARY OF ISSUES

1. Whether Astafur is competent to make an Article 12(3) Declaration, triggering

the jurisdiction of the Court over war crimes committed in Pantos, despite its
lack of effective control over the territory of Pantos at the time of submission
of the Declaration;

2. Whether the Court has jurisdiction under the objective territorial principle over
crimes committed by a Non-Party State (Braanos) via cyberspace that have an
effect in a State (Astafur) that has lodged an Article 12(3) Declaration;

3. Whether the widespread disruption of communications and electricity during

a revolt against the government of Astafur via Distributed Denial of Service
attack constitutes a war crime; and

4. Whether there must be two different victims’ legal teams under separate
Victims’ Legal Representatives in this case because one portion of the victims
supported secession and the other favored remaining part of Astafur.

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 SUMMARY OF ARGUMENTS

1. Astafur is not competent to make an Article 12(3) Declaration, triggering the

jurisdiction of the Court over war crimes committed in Pantos, despite its lack
of effective control over the territory of Pantos at the time of submission of
the Declaration;

2. The Court has no jurisdiction under the objective territorial principle over
crimes committed by a Non-Party State (Braanos) via cyberspace that have an
effect in a State (Astafur) that has lodged an Article 12(3) Declaration;

3. The widespread disruption of communications and electricity during a revolt

against the government of Astafur via Distributed Denial of Service attack
constitutes a war crime; and

4. There must be two different victims’ legal teams under separate Victims’ Legal
Representatives in this case because one portion of the victims supported
secession and the other favored remaining part of Astafur.

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 WRITTEN ARGUMENTS

Astafur is not competent to make an Article 12(3) Declaration, precisely

due its lack of effective control over the territory of Pantos at the time of
submission of the Declaration

It is clear from the mandate of this Court that it can only exercise jurisdiction
over a case if the provisions of the Roman Statute are complied with. In order that a
case be lodged with this court, it is important to note that:any State Party to the
Rome Statute can request the Office of the Prosecutor to carry out an investigation.
A State not party to the Statute can also accept the jurisdiction of the ICC with
respect to crimes committed in its territory or by one of its nationals, and request the
Office of the Prosecutor to carry out an investigation. The United Nations Security
Council may also refer a situation to the Court. Using the second instance, that a
State not a party to the Statute can also accept the jurisdiction of the ICC, it is
essential that the State should exercise effective control over the disputed territory.

Article 1(2) of the Charter of the United Nations provides for one of the
purposes of the United Nations which is to develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of peoples,
and to take other appropriate measures to strengthen universal peace1. This is where
the universally accepted concept of self-determination of peoples comes in. The
Unrepresented Nations and Peoples Organization provides that2, essentially, the right
to self-determination is the right of a people to determine its own destiny. In
particular, the principle allows a people to choose its own political status and to
determine its own form of economic, cultural and social development. Exercise of this
right can result in a variety of different outcomes ranging from political independence
through to full integration within a state. The importance lies in the right of choice,
so that the outcome of a people's choice should not affect the existence of the right
to make a choice. In practice, however, the possible outcome of an exercise of self-
determination will often determine the attitude of governments towards the actual
claim by a people or nation. Thus, while claims to cultural autonomy may be more
readily recognized by states, claims to independence are more likely to be rejected
by them. Nevertheless, the right to self-determination is recognized in international
law as a right of process (not of outcome) belonging to peoples and not to states or
governments.

It must be noted that on March 15, 2014, the population of Pantos conducted
a plebiscite in which sixty percent of the voting age men and women supported
severing sovereign ties with Astafur and merging with Braanos. However, Astafur

1
http://www.un.org/en/sections/un-charter/chapter-i/index.html, Retrieved January 22, 2018.
2
http://www.unpo.org/article/4957, Retrieved January 22, 2018

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immediately announced that the secession plebiscite was not valid and that Pantos
would remain part of Astafur unless and until a dissolution agreement was reached
with the Astafur government and approved by the Astafur Parliament. Such action by
the Government of Astafur in a sense stifled the right of the Pantosian people to self-
determination. As an area whereby roughly 400,000 inhabitants of Pantos originally
migrated there from Braanos, and a majority of the Pantosian population speak
Braan, the predominant language of Braanos, it can be said that what the Pantosian
population only exercised was their right to self-determination. It is a right granted to
the people wanting to secede or exercise their right to self-determination. Thus, in
no way is there a need to wait for an action on the part of Astafur.

As such, Astafur doesnot have effective control or jurisdiction over Pantos

during the time they made the declaration which triggered the application of Article
12(3) of the Rome Statute. The Pantosian populace already exercised their right to
self-determination and can therefore be considered as a valid act of declaring
independence and removing the control of Astafur over their territory. Thus, due to
the lack of effective control over Pantos and its people, Astafur is not competent to
make the Declaration.

The court has no jurisdiction under the objective territorial principle over
crimes committed by a Non-party State (Braanos) via cyberspace that
have an effect in a State (Astafur) that has lodged an Article 12(3)
Declaration

Even if Pantos had been part of Astafur at the time of the acts in question,
there is no reasonable basis to believe that a crime within the jurisdiction of
the Court has been committed because all the alleged actions took place in the
territory of Braanos and in cyberspace; none took place in Pantos.

According to the objective territorial principle, a crime is deemed to have

occurred within the State where its consequences take place, thereby granting it
jurisdiction to try the crime. It would imply that the ICC is competent to try crimes
whose consequences occur within the territory of a State-party, even when the
criminal conduct occurred abroad. But taking into account the fact that Astafur (the
prosecuting State) made an Art. 12(3) Declaration, it is then imperative that this
provision be given more weight in resolving the issue of jurisdiction.

Article 12 of the Rome Statute provides:

1) xxx
2) In the case of article 13, paragraph (a) or (c), the Court
may exercise its jurisdiction if one or more of the
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 following States are Parties to this Statute or have
accepted the jurisdiction of the Court in accordance with
paragraph 3:
a) The State on the territory of which the conduct in
question occurred or, if the crime was
committed on board a vessel or aircraft, the State
of registration of that vessel or aircraft;
b) The State of which the person accused of the crime
is a national.
3) If the acceptance of a State which is not a Party to this
Statute is required under paragraph 2, that State
may, by declaration lodged with the Registrar, accept
the exercise of jurisdiction by the Court with respect
to the crime in question. The accepting State shall
cooperate with the Court without any delay or
exception in accordance with Part 9.

Art.12’s phrasing is problematic. This provision states that the ICC has
jurisdiction to try a crime if the prosecuting State (Astafur) is “the State on the
territory of which the conduct in question occurred”. Under the Rome Statute’s
framework, a crime is composed of three separate elements—conduct,
consequences, and circumstances. Since Art. 12 explicitly uses the word conduct
instead of crime, it must be interpreted as excluding the ICC from exercising
jurisdiction when only the consequences of a crime occur within the territory of the
prosecuting State (Astafur).

Moreover, both territorial issues and the structure of the Internet create
significant challenges for the application of the Rome Statute’s jurisdictional trigger
to cyber-attacks. Generally speaking, the ICC will invoke jurisdiction when a
signatory party is either the aggressor or victim of an act that meets the
definition.Article 12 of the Rome Statute creates jurisdiction when the conduct occurs
inor is committed by a national of a signatory State.Article 12 includes both the
territoryof the conduct and the consequence.

While these clarifying remarks provide sufficient jurisdictional guidance for

traditional weaponry, the question is greatly complicated by the internet’s
structure. The natural flow of information on the internetcreates unpredictable
routing through various jurisdictions. A cyber-attack will certainly be routed through
a large number of territories. The Court must determine whether such routing
creates sufficient “conduct” to create jurisdiction of the court. The crime of

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aggression in cyberspace creates the question of whether the territory should be
virtual, actual, or both.

Needless to say, the cyber-attacks against Astafur cannot be attributed to

Braanos with certainty, thus where the conductof the crime cannot be proven to
have occurred in Braanos, the ICC cannot acquire jurisdiction.

First, circumstantial evidence of Braanosian involvement in the cyber-

activities must meet a heightened burden of proof. This court’s jurisprudence has
consistently reflected a heightened degree of proof for claims based primarily
on circumstantial evidence without direct evidence. This Court distinguished
“indirect evidence” from direct evidence, requiring that inferences of fact from
indirect evidence “leave no room for reasonable doubt.”

In Cameroon v. Nigeria¸ this Court rejected a claim when the indirect

evidence did not provide a “clear and precise picture” of the facts.

The more serious the charges, the higher the degree of proof of
attribution required from circumstantial evidence.The evidence of Braanosian
involvement in the cyberattacks rests entirely on circumstantial evidence,
comprising an academic report and general facts about Braanos’s
telecommunications infrastructure.

Second, the cyber-attacks cannot be linked to agovernment organ of

Braanos.

It is elementary that only acts of an organ of a state are attributable to that

state. Even if the International Rights Watch report is correct, cyber-activity
originating from or transmitted through Braanos’s cyber infrastructure is not
sufficient to prove attribution. Modern cyber-attackers are able to use proxy servers
and virtual private networks to mask their true origin. Cyber-attackers can assume
the identity of another by infiltrating and controlling computers through “zombie”
networks. Once these computers are infected, a cyber-attacker can control the
zombies while masking the perpetrator’s true identity.

Even without directly utilizing another’s hardware, sophisticated cyber-

attackers can feign the identity of an individual or organization using proxy servers,
virtual private networks, or by electronically falsifying data. For instance, cyber-
attackers in 1998 successfully misdirected the United States by creating the

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impression that an attack launched on the Department of Defense from California
and Israel originated in countries from 5 different time zones.

In general, while tracing an attack is possible, most traces terminate at the

ISP. An ISP subscriber may be the responsible party, or the ISP may be yet another
conduit through which the attack has been routed. Given these various methods of
obscuring an attacker’s identity in cyberspace, the circumstantial evidence is
insufficient to prove attribution through a Braanosian government organ.

The widespread disruption of communications and electricity during a

revolt against the government of Astafur via a Distributed Denial of
Service attack does not constitute a war crime

International law is ill-equipped to adjust to the disaggregation of warfare

made possible by the cyber age. Combatants and assets need not physically gather
together to conduct their attack. Each asset is capable of contributing to the
collective effort despite physical distance.

When considering the impact of cyberspace on international law, it is

important to note the differences between the variable levels of malicious cyber
activity, which include cyber-crime, cyber espionage, cyber terrorism, cyber attacks,
and cyber warfare.

The intentions of the perpetrator and the effects of the act are one useful way
to classify the malicious activity.Cyber crime is activity conducted for profit, primarily
motivated by financial gain or notoriety.Cyber espionage is characterized by a
motivation to discover sensitive information rather than that of causing harm.Cyber
terrorism, like all terrorism, is intended to influence an audience or motivate a
government through threats and violence.

The definition of cyber attackremains inconsistent. Even among experts,

usage varies.It cannot therefore be concluded that a cyber attack, resulting to the
disruption of communications and electricity, constitutes a war crime under Article 8
of the Rome Statute.

War crimes are those violations of international humanitarian law (treaty or

customary law) that incur individual criminal responsibility under international law. As
a result, and in contrast to the crimes of genocide and crimes against humanity, war
crimes must always take place in the context of an armed conflict, either
international or non-international.

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 War crimes contain two main elements:
1. A contextual element: “the conduct took place in the context of and was
associated with an international/non-international armed conflict”;
2. A mental element: intent and knowledge both with regards to the
individual act and the contextual element.

Is cyber warfare to be considered ‘armed conflict’ according to the

traditional meaning? International law does not offer a concrete definition of arms.
Oxford Dictionary defines arms as ‘weapons’, which in turn are defined as
‘instruments or tools designed or used for inflicting bodilyharm or
physicaldamage’.

Assuming that Braanos was proven to be the perpetrators of the Cyber-

attacks, such do not constitute traditional uses of force, which generally requires
DIRECTphysical damage.The effects of the cyber-attacks on Astafur were not
comparable to traditional uses of force. The attacks exclusively targeted computer
systems, and resulted merely in the elimination of data at private organizations and
disruption of electronic infrastructure.

At most, the cyber attack may constitute a crime of aggression, but the
number and diversity of culpable individuals involved in international cyber
aggression requires an appropriately tailored and flexible definition of aggressionas
well.

The definition of the act of aggression in the1974 UN General Assembly (GA)

Resolutionlimits its applicability to traditional weaponry of warfare, focuses on
acts committed by and against States, uses aggregated examples of aggression, and
embodies traditional conceptions of territoriality. The GA Resolution explicitly applies
to the traditional instrument of armed force and the traditional weaponry used in
armed attacks.

Article 3 of the Resolution provides examples of aggression, referring to the

attack, invasion, bombardment and blockade of a State by the traditional armed
forces—land, air, sea, or marine—of another State.

The Assembly of State Parties of the ICC in the recent Review Conference of
the Rome Statute in Kampala, Uganda, finally adopted the following definition of
aggression:

For the purpose of this Statute, “crime of aggression”

means the planning, preparation, initiation or execution, by a
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person in a position effectively to exercise control over or to
direct the political or military action of a State, of an act of
aggression which, by its character, gravity and scale, constitutes
a manifest violation of the Charter of the United Nations.

For the purpose of paragraph 1, “act of aggression”

means the use of armed force by a State against the
sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the
Charter of the United Nations. Any of the following acts,
regardless of a declaration of war, shall, in accordance with
United Nations General Assembly resolution 3314 (XXIX) of 14
December 1974, qualify as an act of aggression:

a) The invasion or attack by the armed forces of a State

of the territory of another State, or any military
occupation, however temporary, resulting from such
invasion or attack, or any annexation by the use of
force of the territory of another State or part thereof;
b) Bombardment by the armed forces of a State against
the territory of another State or the use of any
weapons by a State against the territory of another
State;
c) The blockade of the ports or coasts of a State by the
armed forces of another State;
d) An attack by the armed forces of a State on the land,
sea or air forces, or marine and air fleets of another
State;
e) The use of armed forces of one State which are within
the territory of another State with the agreement of
the receiving State, in contravention of the conditions
provided for in the agreement or any extension of
their presence in such territory beyond the termination
of the agreement;
f) The action of a State in allowing its territory, which it
has placed at the disposal of another State, to be used
by that other State for perpetrating an act of
aggression against a third State;
g) The sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which carry
out acts of armed force against another State of such

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 gravity as to amount to the acts listed above, or its
substantial involvement therein.

Based on the foregoing, cyber attacks do not even quality as crimes of

aggression, much less war crimes.

If indeed the cyber-operations were a use of force, they were justified under
Braanos’s right to self-defense. States have the right to use force in self-defense to
repel an imminent armed attack. Braanos’s cyber-attacks became necessary
whenAstafur issued an official statement, threatening that the annexation would
compel them to prevent it by force of arms. To that end, Astafur sent an additional
10,000 troops to strengthen Camp Astaf and guard government buildings throughout
the Pantos region. It has already been determined by plebiscite that majority of the
Pantosian people are people of Braanos; the acts of Astafur were a suppression of
the sovereign will of Braanos’ people.

The presence of Conflict of Interest necessitates the provision of separate

legal counsels for the two groups of victims.

According to the report submitted by International Rights Watch, the following facts
regarding the victim’s position were discovered:

“Approximately 60% of the victims had supported secession/annexation while 40%

favored remaining part of Astafur. Polls indicate that some victims blame the attack
partly on Astafur, since it had ignored the results of the plebiscite and in light of the
events in Hugo Park.” (emphasis ours)

The divided opinion between the two groups of victims show that where one group
blames the alleged assailant Braanos, the majority of the victims view the Petitioner
Astafur as the aggressor. The minority group (40%) blames the government of
Braanos while a larger majority (60%) blames the government of Astafur for the
violent reprisals in Hugo Park. The inability of Astafurian government to respect the
Pantosian people’s right to self-determination stands in direct contradiction to Article
I of the United Nations Charter which states:

“To develop friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace;”

Astafur, in failing to respect the outcome of the referendum and conducting reprisals
against a peaceful demonstration transformed itself as an aggressor State, which is a
legitimate target of warfare. Regardless of whether or not the Braanosian
government did or did not commit the alleged cybercrime, the Astafurian
government is also partly to blame for the injuries and deaths committed during the
blackout.

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Therefore the divergent opinions on which State Party is responsible and is thus
answerable for the deaths and injuries show a clear case of conflict of interest.

Conflict of interest is defined as a situation in which the concerns or aims of two

different parties are incompatible.

Where the two groups blame different parties for the offenses committed, even
granting arguendo that it was the Braanosian State who conducted the attacks, the
fact remains that many view the aggression as an act of self-defense sanctioned
under the United Nations Charter.

The provision therefore of a different legal counsel is tenable under the the existing
Rules of Procedure under the International Criminal Court. The following provisions
from different manuals released under the auspices of the Honorable Court are clear
and concise:

“Victims who prefer Not to Be joined With other victims in the same groups, for
instance because they believe that their interests need to be represented separately
due to a conflict of interest, can also ask the judges to review this decision.” 1

In case some of the victims participating in the present case object to being
represented by the common legal representative appointed by the Registrar, or a
conflict of interest is shown by the common legal representative,the Single Judge
wishes to appoint the Office of Public Counsel for Victims (the OPCV) as legal
representative of those victims not represented by the common legal representative,
if need be. 2

1. VICTIMS BEFORE THE INTERNATIONAL CRIMINAL COURT A GUIDE FOR THE

PARTICIPATION OF VICTIMS IN THE PROCEEDINGS OF THE COURT
2. Rule 90 of the Rules of Procedure and Evidence, International Criminal Court

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 CONCLUDING SUBMISSIONS
_____________________________________________________________

Wherefore in light of the questions presented, arguments advanced and authorities

cited, the Defense respectfully requests this Court to adjudge and declare that:

I. The Government of Astafur has no legal standing to raise the

allegations of war-crime as it is not a signatory to the International
Criminal Court nor a member of the ICC;

II. The government of Astafur did not have effective control over the
territory of Pantos during the events of the blackout as the presence
of a popularly-backed uprising ceded effective control and
sovereignty to Braanos

III. The government of Braanos is not liable for the alleged cybercrime
and granting arguendo that it is liable for the casualties and injuries
during the Pantosian Blackout the Honorable Court does not have
jurisdiction over the same as they do not constitute war crimes
under the Rome Statute;

IV. The victims of the Blackout are entitled to different legal teams as
the differing opinions as to the State-Party in fault constitute conflict
of interest under Rule 90 of the Honorable Court’s Rules of
Procedure

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