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236R

INTERNATIONAL COURT OF JUSTICE


Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands

CASE CONCERNING
THE FROST FILES

State of Amestonia
(Applicant)

V.
Federal Republic of Riesland
(Respondent)

2016 Philip C. Jessup International Law Moot Court Competition

MEMORIAL FOR RESPONDENT


TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................................................IV
STATEMENT OF JURISDICTION.........................................................................................VII
QUESTIONS PRESENTED....................................................................................................VIII
STATEMENT OF FACTS..........................................................................................................IX
SUMMARY OF PLEADINGS................................................................................................XIV
PLEADINGS..................................................................................................................................1
I- THE ILLICITLY-OBTAINED DOCUMENTS PUBLISHED ON THE WEBSITE OF
THE AMES POST ARE INADMISSIBLE BEFORE THE COURT, BUT IN THE EVENT
THAT THE COURT DOES FIND THEM TO BE ADMISSIBLE, THEY DO NOT
EVIDENCE ANY BREACH BY RIESLAND OF AN INTERNATIONAL OBLIGATION
OWED TO AMESTONIA;..........................................................................................................1
A. The documents published by the Ames Post are not admissible as evidence before this
Court.........................................................................................................................................1
1. Press material is irrelevant when it comes to proving grave claims against a State.........1
2. The true source of the information is not certain enough.................................................2
B. In any event, the documents stolen by Frederico Frost do not evidence any violation of
international law by Riesland...................................................................................................2
1. Mass surveillance is not prohibited by International Law................................................3
2. The purported electronic surveillance programs were conducted in accordance with
general international law, as they did not attempt against privacy or freedom of expression..4
i) Applicability of article 17 of the ICCPR..........................................................................4
ii) The programs were not arbitrary or abusive.....................................................................5
iii) The programs were necessary...........................................................................................6
iv) The programs were in accordance with domestic law and followed minimization
procedures................................................................................................................................7
3. The purported programs did not violate any obligation owed to Amestonia....................8
i) Broadcasting Treaty..........................................................................................................8
ii) Territorial Integrity and Sovereignty.................................................................................9
II- THE ARREST OF MARGARET MAYER AND THE OTHER VOR EMPLOYEES,
AND THE EXPROPRIATION OF THE VOR FACILITY AND ITS EQUIPMENT,
VIOLATED THE BROADCASTING TREATY AND INTERNATIONAL LAW
GENERALLY, AND RIESLAND IS THEREFORE ENTITLED TO THE IMMEDIATE

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RELEASE OF ITS NATIONALS AND COMPENSATION FOR THE VALUE OF THE
CONFISCATED PROPERTY;...................................................................................................10
A. The arrest and expropriation committed by Amestonia violated the Broadcasting Treaty
10
1. VoR’s premises, its equipment, and its personnel were protected by immunity.............10
i) The facilities did not cease functioning as envisaged by the BT until after Amestonia
breached the Treaty.................................................................................................................11
2. In any event, the facilities and their personnel were protected by diplomatic immunity,
since they were a special diplomatic mission.........................................................................12
i) VoR is a special mission..................................................................................................12
ii) Customary International Law grants immunity to special missions...............................13
B. The actions of Amestonia constitute internationally wrongful acts, subject to
compensation..........................................................................................................................14
1. Amestonia violated its international obligations.............................................................14
i) Pacta sunt servanda.........................................................................................................14
ii) Obligation to protect missions........................................................................................15
2. Internationally wrongful acts must result in compensation for the affected party and
Margaret Mayer, along with the other VoR personnel must be released by Amestonia.........16
III- RIESLAND’S DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM
ACT IS CONSISTENT WITH ITS OBLIGATIONS UNDER INTERNATIONAL LAW, AND
THE COURT HAS NO AUTHORITY TO ORDER EITHER KAFKER’S RELEASE OR THE
DISCLOSURE OF THE INFORMATION RELATING TO HIS APPREHENSION...............17
A. Riesland’s detention of Joseph Kafker under the Terrorism Act is consistent with its
obligations under International law........................................................................................17
1. Joseph Kafker represents a threat to Riesland’s public safety and national security in the
terms of the Terrorism Act......................................................................................................17
2. The detention of Joseph Kafker is under the Terrorism Act is consistent with the
procedural safeguards provided by Article 9 of the ICCPR...................................................18
i) Right to be informed of the reasons for the detention.....................................................18
ii) Right to trial within a reasonable time............................................................................19
iii) Right to challenge detention...........................................................................................21
B. The Court has no authority to order either Kafker’s release or the disclosure of the
information relating to his apprehension................................................................................23
1. The Court has no authority to order Kafker’s release.....................................................23
2. The Court has no authority to order the disclosure of the information relating to
Kafker’s apprehension............................................................................................................24

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i) State Practice regarding non-disclosure of the information that serves as a basis for
preventive detention...............................................................................................................25
a. Israel................................................................................................................................25
b. United States...................................................................................................................26
c. United Kingdom..............................................................................................................26
IV- THE CYBER ATTACKS AGAINST THE COMPUTER SYSTEMS OF THE AMES
POST AND CHESTER & WALSINGHAM CANNOT BE ATTRIBUTED TO RIESLAND,
AND IN ANY EVENT DID NOT CONSTITUTE AN INTERNATIONALLY WRONGFUL
ACT. 27
A. The cyber attacks cannot be attributed to Riesland.........................................................27
1. The standard of proof to be used must be evidence beyond a reasonable doubt............27
2. Amestonia failed to provide sufficient conclusive and evidence linking the alleged
cyber-attacks to Riesland........................................................................................................28
B. In any event, the purported actions did not constitute an internationally wrongful act. .29
1. The cyberattacks against the computer systems at the Ames Post and Chester and
Walsingham do not amount to a use of force.........................................................................29
2. In any event, international law permits the use of force as self-defense........................31
PRAYER FOR RELIEF.................................................................................................................33

INDEX OF AUTHORITIES

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Treaties and Conventions

 1966 International Covenant on Civil and Political Rights


 European Convention on Human Rights
 United Nations Charter
 Rome Statute
 1969 Convention on Special Missions
 1969 Vienna Convention on the Law of Treaties
 1961 Vienna Convention on Diplomatic Relations
 1992 Broadcasting Treaty

United Nations Resolutions and Other Documents

 Security Council Resolution 1373, Sept. 28, 2001


 United Nations General Assembly. United Nations Body of Principles for the Protection
of All Persons under Any Form of Detention
 Draft articles on Responsibility of States for Internationally Wrongful Acts (2001)
 International Law Commission’s Articles on State Responsibility (2001)
 Yearbook of the International Law Commission, Volume II (1967)

International Cases and Arbitral Decisions

 USA v. Sissoko
 Li Weixum v. Bo Xilai
 Decision 27 February 1984 Case No. 4 StR 396/83, 80 ILR (1989) 388 (Germany Federal
Supreme Court)
 Case Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 26
February 2007
 Case Concerning Armed Activities On The Territory Of The Congo (Democratic
Republic Of The Congo V. Uganda) Judgment Of 19 December 2005
 Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949
 Case Relating to the Territorial Jurisdiction of the International Commission of the River
Oder, Permanent Court of International Justice, September 10, 1929.
 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984
 S.S. Lotus, France v. Turkey, Judgment, 7 September 1927, Permanent Court of
International Justice (PCIJ),
 Case Donoso v. Panama, Judgment, inter-Am. Ct. H.R., No. 200, Jan2009

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 Case Escher v. Colombia, Judgment, Inter- Am. Ct. H.R.
 Case Gabriele WEBER and Cesar Richard SARAVIA against Germany (Weber v
Germany), App. no. 54934/00
 Case Ratoru v. Romania , App. No. 283/95 ,Eur. Ct. H.R. 192,
 Case Klass and others v. Germany, judgment of 6 September 1978, Eur. Ct. H. R. 4 .
 Leander v. Sweden , App. No. 9248/81, Eur. Ct. H.R. 4
 P.G. and J.H. v. United Kingdom, App. No. 44787/98, Judgment, 2001-IX Eur. Ct. H.R.
 Copland v. United Kingdom
 Special Tribunal for Lebanon, Case No. STL-11-01/T/TC 21 May 2015
 The Oil Platforms (Iran v. US) case, ICJ Judgement
 Kupreskic et al., AC, (IT-95-16-A), 23 October 2001
 The Iranian Hostages Case (USA v. Iran) , ICJ Reports (1980)
 Factory at Chorzów Judgment, Permanent Court of International Justice (1927)

Treatises, Other Books, Articles and Essays

 Robert Litt, Gen. Counsel, Office of Dir. of Nat’l Intelligence, Remarks at American
University Washington College of Law Freedom of Information Day Celebration (Mar.
17, 2014)
 David E. Sanger, In Spy Uproar, ‘Everyone Does It’ Just Won’t Do, N.Y. TIMES, Oct.
25, 2013, Available at : http://www.nytimes.com/2013/10/26/world/europe/in-spy-uproar-
everyone-does-it-just-wont- do.html?_r=0.
 Ashley Deeks, An International Legal Framework for Surveillance. Virginia Journal of
Int. Law., Vol. 55:2
 Der Spiegel, Espionage: The NSA’s Secret Spy Hub in Berlin, , Oct. 27, 2013
 Jeffrey H. Smith, Symposium: State Intelligence Gathering and International Law:
Keynote Address, 28 MICH. J. INT’L L. 543, 544 (2007)
 Quincy Wright, Espionage and the Doctrine of Non-Intervention in Internal Affairs, in
ESSAYS ON ESPIONAGE AND INTERNATIONAL LAW 3, 16–17 (Roland J. Stanger
ed., 1962)
 W. Michael Reisman, Remarks, covert Action, 20 Yale J. INT’L. 419,421. N3 (1995)
 Scott N. Carlson and Gregory Gisvold. Practical Guide to the International Covenant on
Civil and Political Rights. Transnational Publishers (2003).
 Vladimir Kulomin v Hungary, Communication No 521/1992, UN Doc CCPR/C/50/D/
521/1992.
 Malcolm Shaw. International Law. Sixth Edition. Cambridge University Press (2008)
 Stephen Schulhofer, “Checks and Balances in Wartime: American, British and Israeli
Experiences,” Michigan Law Review (August 2004).
 Stephanie Cooper Blum. Preventive Detention in the War on Terror: A Comparison of
How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects.
Homeland Security Affairs, Vol. IV, No. 3 (October 2008).

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 Claire Macken. Preventive detention and the right of personal liberty and security under
the International Covenant on Civil and Political Rights.
 C. TAPPER (ed) Cross and Tapper on Evidence, 2007
 K. BROUN (ed) McCormick on Evidence, II 2006
 Kinsch, Patrick. On The Uncertainties Surrounding The Standard Of Proof In
Proceedings Before International Courts And Tribunals, INDIVIDUAL RIGHTS AND
INTERNATIONAL JUSTICE, Giuffrè Editore, Milan - 2009
 Laura-Liisa Laving, The Reliability of Open Source Evidence In the International
Criminal Court
 David Clarck and Susan Landau, “Untangling Attribution “ (2011) harvard National
Seurity
 Ian Brownlie, International Law and the Use of Force by States (OUP 1963)
 Ian Brownlie, Principles of International Law

Miscellaneous

 Council of Europe, Recommendation (2006)13 on the Use of Remand in Custody, the


Conditions in which it takes place and the Provision of Safeguards against Abuse
 American Bar Association. Handbook of international standards on pretrial detention
procedures. Available at: https://www.ilsa.org/jessup/jessup16/Batch
%201/handbook_of_international_standards_on_pretrial_detention_procedure_2010_eng
.authcheckdam.pdf
 Mario Ines Torres v Finland, Communication No.291/1988: Finland 05/04/90
 Vladimir Kulomin v Hungary, Communication No 521/1992, UN Doc CCPR/C/50/D/
521/1992.
 National Research Council of the National Academies (2009) Technology, Policy, Law
and Ethics Regarding U.S. Acquisition and Use of Cyberattack Capabilities.
 Tallinn Manual
 Draft articles on Responsibility of States for Internationally Wrongful Acts (2001)
 Terrorism Act 2003
 Proceedings in England regarding Israeli Minister Ehud Barak, Written Ministerial
Statement by Mr. Henry Bellingham, HC Deb. 13 December 2010, Volume 520, 72WS
 Djibouti v. France, memorial of the Republic of Djibouti, March 2007

STATEMENT OF JURISDICTION

The Federal Republic of Riesland (“Riesland/Respondent) and the State of Amestonia

(“Amestonia/Applicant”) submit the present dispute concerning the Frost Files to the

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International Court of Justice by virtue of a Special Agreement, dated 1 September 2015,

pursuant to article 40(1) of the Statute of the Court. The parties have agreed to the contents of the

Special Agreement. The Federal Republic of Riesland accepts any Judgment of the Court as final

and binding, and shall execute it in its entirety and in good faith.

QUESTIONS PRESENTED

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The Federal Republic of Riesland asks this Honorable Court:

A. Whether the illicitly obtained documents published on the website the Ames Post are

inadmissible before the Court, and if this Court find them to be admissible, whether there

was a breach by Riesland of an international obligation owed to Amestonia;

B. Whether the arrest of Margaret Mayer and the other VoR employees, and the expropriation

of the VoR facility and its equipment, constituted a violation to the Broadcasting Treaty,

and whether Riesland is entitled to the immediate release of its nationals and a

compensation for the value of the confiscated property;

C. Whether the detention of Joseph Kafker under the Terrorism Act was consistent with

international law, and whether the Court possess the authority to order its release or the

disclosure of information relating to his apprehension;

D. Whether the cyber attacks against the computer systems of The Ames Post and Chester &

Walsingham can be attributable to Riesland, and whether it constitutes an internationally

wrongful act or not.

STATEMENT OF FACTS

1. The Rieslandic Secret Surveillance Bureau (“the Bureau”) engages, inter alia, in covert

operations and collects intelligence outside of Riesland pursuant to the provisions of the

Secret Surveillance Bureau Act 1967 (“SSBA”).

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2. Section 21 of the SSBA, grants the Director of the Bureau (“the Director”) the power to

authorize “electronic surveillance,” without a court order, to acquire “foreign

intelligence.” Section 32 of the SSBA, sets forth limitations on the Bureau’s surveillance

activity.

3. On 4 March 1992, Riesland and Amestonia signed the “Treaty on The Establishment of

Broadcasting Facilities” (the Broadcasting Treaty). In accordance with the Broadcasting

Treaty, Riesland established The Voice of Riesland to operate in Amestonia.

4. On 2 October 2012, the Institute for Land and Sustainable Agriculture (“ILSA”)

published a report that found correlation – but not definitive evidence of causation –

between the gradual decrease in the honey bee population and the rise in the use of

neonics across the region. Neuro-active insecticides known as neonicotinoids, or

“neonics,” are produced solely by Rieslandic companies.

5. On the night of 2 February 2014, seven Amestonian warehouses were simultaneously set

on fire. The warehouses stored a significant number of barrels of neonicotinoids. In total,

five people died from smoke inhalation, and many others were injured. Two of the dead

were Rieslandic nationals. Police found spray-painted images of a bee on the asphalt

outside the sites. Initial government reports estimated the damage from the attacks,

including long-term adverse health consequences for the local population, at €75 million.

6. On 7 March 2014, 263 envelopes containing white powder were sent to Riesland and

Amestonia. The image of a bee was stamped on the back of all of the envelopes.

Examinations determined that the powder was a non-toxic variant of a neonicotinoid. An

anonymous tweet posted that evening, which quickly went viral, read: “You’ve been

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warned. The threat is real. It must be addressed. Next time you’ll taste your own poison.

#banneonics #savethebees.”

7. On 16 October 2014, the Bureau’s Director, met with the Amestonian Minister of Internal

Affairs. He informed the Minister that the Bureau had succeeded in identifying a ring of

Amestonian environmental activists who had been plotting to contaminate a large

shipment of honey, intended for consumption in Riesland.

8. On 21 October 2014, the police broke into a garage located in Amestonia’s capital and

apprehended three Amestonian college students. The students had in their possession

significant quantities of chemically-altered neonicotinoids and detailed maps of a number

of honey extraction facilities in Amestonia. They admitted to planning an attack and to

being part of a group of environmentalists, they called “The Hive.” The students refused

to provide the authorities with the names, locations, or future plans of other members of

the group.

9. On the morning of 16 December 2014, Frederico Frost, a national of Riesland and former

Bureau intelligence analyst drove from the Bureau’s facilities to Amestonia, where he

contacted Chester & Walsingham, a law firm that had previously represented defendants

in a number of high-profile whistle-blower and national security cases. Frost handed

lawyers from the firm a USB drive containing nearly 100,000 documents labeled top

secret that he said he had directly downloaded from Bureau computers.

10. On 18 December 2014, accompanied by his lawyers, Frost met with two reporters from

The Ames Post, and gave them a copy of the USB drive, requesting that the newspaper

publish the contents on its website.

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11. In January and February 2015, thousands of documents marked “top secret” were

gradually published, unedited and unredacted, on the website of The Ames Post. One of

the documents, “The Verismo Program,” detailed a May 2013 operation in which a

waterproof recording pod was installed on the undersea fiber optic cable. The device was

placed on a section of the cable located in Riesland’s exclusive economic zone. The pod

copied all information that went through the cable and transferred it to the Bureau’s

servers. The document also noted that, following the white powder incident on 7 March,

Bureau employees had been instructed to use all of the Bureau’s resources “to track

environmental activists in Amestonia,” relying on specifically tailored search terms, or

“selectors.”

12. On 29 January 2015, The Ames Post published on its website a document on the

letterhead of the Office of the Attorney General of Riesland, which detailed regulations

issued by the Attorney General regarding the Bureau’s surveillance. The document

provided that all data collected by the Bureau through Verismo or related programs was

handled in compliance with the limitations set forth by the SSBA.

13. Another document leaked by Frost stated that since its inception in 1992, the premises of

the VoR station had been used by the Bureau to promote its surveillance activities on

Amestonian soil. According to the document, Margaret Mayer, a television icon from

Riesland, appointed by the Ministry of Telecommunications to serve as Head of VoR, was

part of an operation called “the Carmen Program,” intended to collect intelligence by

means of bugging the cell phones of high-ranking Amestonian public figures and private

sector leaders. That evening, citing as probable cause the Carmen Program documents

published by The Ames Post, the Amestonian obtained a warrant to seize all assets and

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property of VoR. The following morning, Amestonia’s Border Patrol detained Margaret

Mayer and two other Rieslandic VoR employees while they were on a train crossing into

Riesland. The three were later arrested on suspicion of espionage and subsequently

charged with that offense.

14. Joseph Kafker is a 70-year-old retired Amestonian politician. On 7 March 2015, Kafker

was detained by the police, allegedly in accordance with the Terrorism Act. On 10 March

2015, Kafker’s case was brought before the National Security Tribunal. Following a

request from the Attorney General’s Office, the Tribunal ruled that all evidence pertaining

to Kafker’s activities and leading to his apprehension was “closed material,” as the term

is defined in the Terrorism Act. The Tribunal then granted the petition to extend Kafker’s

detention for reasons of national security.

15. On 14 March 2015, President Hale instructed his Minister of Justice to refuse the

extradition request for Frederico Frost, citing the “political offense” exception in the

Extradition Treaty. He also ordered that Riesland’s request for the documents held by The

Ames Post be denied.

16. On 17 March 2015, a leaked memorandum, sourced from Frost’s USB stick, revealed that

Kafker was considered a “high-level suspect with ties to The Hive, including the planned

contamination of a large shipment of honey with a toxic variant of neonicotinoids in

2014.” Furhthermore, Riesland’s Attorney General stated that Riesland was in possession

of “closed materials” that “directly link Kafker to The Hive’s senior echelons.”

17. On 22 March 2015, the computer networks and communication switches at both The

Ames Post and Chester & Walsingham were hacked and disabled. Based on a report

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submitted by the Amestonian Institute of Technology, Amestonia issued a statement

attributing Riesland responsibility for the cyberattacks.

SUMMARY OF PLEADINGS

A.

The illicitly-obtained documents published on the website of the Ames post are

inadmissible before the court, since the applicant has relied exclusively on press material to base

their claims against Riesland and press material is irrelevant when it comes to proving grave

claims against a state, moreover, in the case at hand the true source of the information is not

13
certain enough to sustain the applicant allegations since the information did not emanate directly

from Rieslandic authorities, but rather from an individual that claims to have taken the

documents from Riesland, then the documents may have been manipulated and tampered with

For these reasons, since there is no way of determining that the documents are authentic and

accurate, then they must not be admitted as evidence before the Court.

In the event that the Court does find them to be admissible, they do not evidence any

breach by Riesland of an international law as there is no rule that explicitly prohibits intelligence

collection, including mass surveillance, in fact there isn’t an obligation owed to Amestonia since

Riesland successfully fulfill its obligations under the Broadcasting Treaty subscribed among the

two nations by carefully respecting the considerations of the treaty.

B.

The immunities in the Broadcasting Treaty as the dispositions of several instruments of

International Law are going to be in place for the personnel and the facilities. It is important to

establish that VoR classifies as a special mission, even though neither Amestonia nor Riesland

are parties of the Convention on Special Missions, it has been determined through different

practices that it may reflect characterization of Customary International Law. Amestonia

violated the principle of pacta sunt servanda as they obviated the dispositions proposed on the

Vienna Convention on the Law of Treaties.

Also Amestonia violated the general obligation of a host State to protect the premises of a

mission of another State, which is a general accepted norm, and it is included in diverse

instruments of International Law. Last but not least, the actions commited by Amestonia

constituted an internationally wrongful act when they expropriated without justification the

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facilities and the equipment of the facility of the VoR, and therefore, the Federal Republic of

Riesland is entitled to a compensation on the value of the properties expropriated and the

immediate release of Margaret Mayer and the other two VoR employees.

C.

Riesland’s detention of Joseph Kafker under the Terrorism Act is consistent with its

obligations under International law as Joseph Kafker represents a threat to Riesland’s public

safety and national security in the terms of the Terrorism Act. Moreover, the detention of Joseph

Kafker under the Terrorism Act is consistent with the procedural safeguards provided by the

ICCPR.

The Court has no authority to order either Kafker’s release or the disclosure of the

information relating to his apprehension. The extension of Kafker’s detention suggests that he

still remains a high level and therefore his release could endanger Riesland’s national security.

Furthermore, relevant State Practice is consistent with non-disclosure of the information that

serves as a basis for preventive detention.

D.

In international law as in domestic law the initial evaluation of reliability involves the

sources of evidence, then the evaluation of credibility concerns the information provided by the

source and answers the question of whether the information should be believed or not. In this

order the Respondent affirms that cyber attacks against the computer systems of the Ames post

and Chester & Walsingham cannot be attributed to Riesland, since there is no fully conclusive

evidence to prove such claim, in fact the only evidence that has been provided by the Applicant

15
is a report made by the Amestonian Institute Of Technology, a source that can’t be trusted since it

is extremely bounded with the State of Amestonia.

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PLEADINGS

I- THE ILLICITLY-OBTAINED DOCUMENTS PUBLISHED ON THE WEBSITE OF THE


AMES POST ARE INADMISSIBLE BEFORE THE COURT, BUT IN THE EVENT THAT THE
COURT DOES FIND THEM TO BE ADMISSIBLE, THEY DO NOT EVIDENCE ANY BREACH
BY RIESLAND OF AN INTERNATIONAL OBLIGATION OWED TO AMESTONIA;

A. The documents published by the Ames Post are not admissible as evidence before
this Court
The applicant has relied exclusively on press material released by two national

newspapers on their respective websites to base their claims against Riesland 1. Nevertheless, the

purpose and nature of these documents render them inadmissible before this Court in regards to

the present dispute, for two reasons: a) press material is irrelevant when it comes to proving

grave claims against a State; and b) the true source of the information is not certain enough.

1. Press material is irrelevant when it comes to proving grave claims against a State
Unlike in domestic law, the admissibility of evidence in international law is intrinsically

linked to its relevance rather than any procedural rules 2. Therefore, it is important to determine

whether or not the press evidence presented by the applicant will be relevant, given the grave

nature of their claims.

While this Court has accepted that circumstantial evidence may be used under some

circumstances, it has clearly and constantly established that when a grave claim is brought upon

a State, the evidence has to be completely conclusive3. This Court has recognized that press
1 Compromis, Paragraph 24.
2 See Case Relating to the Territorial Jurisdiction of the International Commission of the River
Oder, Permanent Court of International Justice, September 10, 1929. The parties had argued that
the travaux préparatoires were sufficient evidence to the court, however the court ruled that the
preparatory work brought upon had little relevance, due to the lack of participation of one of the
parties, thus rendering the evidence inadmissible.
3Case concerning the Application of the Genocide Convention, pg. 90 paragraph 209 & Corfu
Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 17.
1
material is not conclusive evidence sufficient enough to prove facts 4; they merely help in the

process of inferring them. For this reason, the documents published by the Ames Post should not

be accepted as evidence, since ultimately they will not be able to prove such grave claims as

those invoked by the applicant.

2. The true source of the information is not certain enough


International jurisprudence has established that when the true source of press information

presented as evidence is not certain, then such press information is inadmissible as evidence

before the court5. In the case at hand, since the information did not emanate directly from

Rieslandic authorities, but rather from an individual that claims to have taken the documents

from Riesland, then the documents may have been manipulated and tampered with. In this sense,

international tribunals have refused to admit evidence based on the fact that the evidence failed

to satisfy the two prima facie indicators of reliability for admission: authenticity and accuracy,

indicating that the evidence was not clearly “what it professe[d] to be in origin and authorship” 6.

For these reasons, since there is no way of determining that the documents are authentic and

accurate, then they must not be admitted as evidence before the Court.

B. In any event, the documents stolen by Frederico Frost do not evidence any violation
of international law by Riesland.
Even in the hypothetical case in which this Court finds the press material to be admissible

as evidence, they would still not prove any violation of international law committed by Riesland,

4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, para. 57-74.
5 Case Concerning Armed Activities On The Territory Of The Congo
(Democratic Republic Of The Congo V. Uganda) Judgment Of 19 December 2005, Paragraph 68.
6 Special Tribunal for Lebanon, Case No. STL-11-01/T/TC 21 May 2015, Pg. 12Paragraphs 42-
43
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as the purported actions are not prohibited by international law, and would not have violated

human rights or any bilateral obligations.

1. Mass surveillance is not prohibited by International Law


According to the Lotus Principle, unless there is a positive rule that prohibits an action,

then “every state remains free to adopt the principle which it regards as best and most suitable” 7,

in other words, anything that is not forbidden is permitted. In this sense, under international law,

there is absolutely no rule that explicitly prohibits intelligence collection, including mass

surveillance; in fact, States have tried to limit the surveillance rather than forbidding it,

demonstrating their compliance with its practice8.

Indeed, every developed nation has at least some monitoring program 9, making mass

surveillance a generally accepted practice among nations, including the United States of America

through its National Security Agency, Australia through the Australian Signals Directorate, and

the United Kingdom through the Government Communications Headquarters 10. This is due to the

fact that surveillance programs are the most adequate and effective method of conducting any

prevention of terrorism11.

7 The Case of the S.S. Lotus, France v. Turkey, Judgment, 7 September 1927, Permanent Court
of International Justice (PCIJ), Paragraph 46.
8 See W. Michael Reisman, Remarks, covert Action, 20 Yale J. INT’L. 419,421. N3 (1995)
(describing the soviet Union agreements with its Eastern European Satellites.
9 Espionage: The NSA’s Secret Spy Hub in Berlin, DER SPIEGEL, Oct. 27, 2013
10 Quincy Wright, Espionage and the Doctrine of Non-Intervention in Internal Affairs, in
ESSAYS ON ESPIONAGE AND INTERNATIONAL LAW 3, 16–17 (Roland J. Stanger ed.,
1962) (noting that British jurist Lassa Oppenheim concluded that espionage is not politically or
legally wrong and that there is a general practice of espionage by all states); Jeffrey H. Smith,
Symposium: State Intelligence Gathering and International Law: Keynote Address, 28 MICH. J.
INT’L L. 543, 544 (2007) (“[…] Because espionage is such a fixture in international affairs, it is
fair to say that the practice of states recognizes espionage as a legitimate function of the state,
and therefore it is legal as a matter of customary international law.”); in “An International
Framework for Electronic Surveillance”, Op. Cit.
11 Klass and others v. Germany, Judgement of 6 September 1978, Eur. Ct. H.R., No.28 (law
authorizing secret services to carry out secret monitoring of communications)
3
2. The purported electronic surveillance programs were conducted in accordance with
general international law, as they did not attempt against privacy or freedom of
expression
Having established that mass surveillance is not prohibited by international law, the only

other possible limitations to such mechanisms might be the rights to privacy and freedom of

expression. In this sense, it has been generally accepted that mass surveillance does not violate

these rights under the adequate circumstances, which consist in the surveillance program not

being abusive, unnecessary, or failing to accord with domestic law 12. This includes following

minimization procedures in order to gather the information in the least invasive manner13.

i) Applicability of article 17 of the ICCPR


While it is true that the ICCPR protects the right to privacy, the international community

has not yet agreed on whether or not this also encompasses electronic surveillance. In fact, States

like Germany have pointed out this situation 14. For this reason, article 17 of the ICCPR should

not be directly applied to the present case. However, even if the Court does find this article to be

applicable, it would only oblige States to guarantee this right in respect to individuals within its

own territory and those who are subject of their jurisdiction15.

Moreover, in the hypothetical scenario in which the obligations under the Covenant did

extend extraterritorially to foreign citizens, all the surveillance programs carried out by Riesland

12 See the Klass and Others judgment cited above, p. 21, § 42.
13 See David E. Sanger, In Spy Uproar, ‘Everyone Does It’ Just Won’t Do, N.Y. TIMES, Oct. 25,
2013, Available at: http://www.nytimes.com/2013/10/26/world/europe/in-spy-uproar-everyone-
does-it-just-wont- do.html?_r=0.
14 In 2013, Germany expressed interest in amending the ICCPR, so that it would be clear that it
extends to electronic privacy. Publicists interpret this as meaning that “the fact that Germany
thought that it was not obvious that the ICCPR regulates electronic surveillance suggests that
other States may not read article 17 that way either”. Deeks, Ashley. An International Legal
Framework for Surveillance. Virginia Journal of Int. Law., Vol. 55:2, pg. 302

15 Article 2(1) of the ICCPR


4
did not constituted an arbitrary interference with the private life of Amestonian or Rieslandic

individuals as we will continue to prove ahead.

ii) The programs were not arbitrary or abusive


Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful

interference with their privacy; nevertheless, if it is necessary and in accordance with existing

laws, the exercise of this right can be limited 16. The ECtHR stated that secret surveillance is

“Tolerable… only in so far as it is strictly necessary for safeguarding the democratic

institutions”17. Therefore, it can be concluded that this right is qualified, rather than absolute, and

regarding this matter, Riesland authorities adopted the necessary measures in the SSBA to

prevent the arbitrary interference with the private life of individuals18.

In this sense, the state restrictions regarding the right to privacy, in order to be non-

abusive and non-arbitrary, must “serve a legitimate purpose and meet the requirements of

suitability, necessity and proportionality which render {them} in a democratic society” 19. It has

also been stated that the test of necessity should be applied in order to determine if a surveillance

measure is necessary to achieve the legitimate aim 20. In this case, the surveillance programs

conducted by Riesland were strictly necessary in order to guarantee the protection and integrity

of Riesland and its government, and they served for cooperation with the Amestonian

16 Such limitation includes the protection of the rights and freedoms of others, the prevention of
disorder or crime and the interest of national security, public safety or economic well-being of
the country. ( See The ICCPR,ECHR, ACHR and the American Declaration )
17 Ratoru v. Romania , App. No. 283/95 ,Eur. Ct. H.R. 192, Para 47, & see footnote 13
18 See the Klass and Others judgment cited above, para.4 (1978). Under the EctHR’s
jurisprudence, these guarantees against abuse need to be codified in the same set of law as that
govern the surveillance program; see Compromis 3-5.
19 Donoso v. Panama, Judgment, inter-Am. Ct. H.R., No. 200, Jan 2009, paragrah 56.
20 Leander v. Sweden , App. No. 9248/81, Eur. Ct. H.R. 4, Para 59. (“ The Court recognizes that
the national authorities enjoy a margin of appreciation, the scope of which will depend not only
on the nature of the legitimate aim pursued but also on the particular nature of the interference
involved”)
5
government21. Furthermore, the restriction on the right to privacy carried out by these programs

were “statutory enacted” fulfilling the legality requirements22, and proving that all the

surveillance programs carried out by Riesland under de SSBA were made in compliance with

international law.

iii) The programs were necessary


As previously indicated, a surveillance program must be necessary in order to not violate

the right to privacy. This is also true for the right to freedom of expression. Everyone shall have

the right to freedom of expression including the right to impart ideas of all kinds 23; however this

freedom comes with some duties and responsibilities therefore it should be subject of some
24
restrictions for the protection of the rights of others and the wellbeing of the country . Secret

surveillance does not constitute a violation to the right of freedom of expression itself as long as

it complied with the requirement of necessary25.

The ECtHR has clarified that a state’s interference with the right to respect for private life

and correspondence “will be considered ‘necessary in a democratic society’ for a legitimate aim

if it answers a pressing social need and, in particular, if it is proportionate to the legitimate aim

21 Compromis, 31
22 Escher v. Colombia, Judgment, Inter- Am. Ct. H.R.,,Paragraph 118 No. 200, (the
surveillance, intervention, recording and dissemination of such communications is prohibited,
except in the cases established by law that are adapted to the objects and purposes of the
American Convention on Human Rights)
23 Art 19 ICCPR
24 Restrictions prescribed by law and necessary in the interest of national security, territorial
integrity or public safety, for the prevention of disorder or crime , for prevention the disclosure of
information received in confidence, See ART. 10 (2) OF THE ECHR
25 Case Application no. 54934/00 by Gabriele WEBER and Cesar Richard SARAVIA against
Germany
(Weber v Germany), Para 149,Pag34 Eur. Ct. H.R.,
6
pursued and if the reasons adduced by the national authorities to justify it are relevant and

sufficient”26.

In this case, the pressing social need was the task of preventing terrorism. States have the

duty to prevent terrorism27. In fact, this duty includes monitoring the use of communication

technologies by terrorist groups28. It then becomes evident that the reasons that justified the

programs are relevant and sufficient, in light of these international duties.

In respect to the need of proportionality, international courts have ruled that this principle

would be violated “only where no objectively defensible consideration can justify recourse to a

specific method intended to attain a given objective”29. As it has been previously stated, the

international duty of preventing terrorism is an ‘objectively defensible consideration’.

iv) The programs were in accordance with domestic law and followed minimization
procedures.
Rieslandic domestic law authorizes the employment of surveillance programs. In fact, the

Secret Surveillance Bureau Act (SSBA) grants the power to authorize electronic surveillance, in

order to guarantee the ability of Riesland to protect itself against any actual or potential threat

against its national security.

The SSBA established that the foreign intelligence must be collected outside Rieslandic

territory30. In the case at hand, this was fulfilled by both purported surveillance programs, as the

26 S. and Marper v. United Kingdom, App. Nos. 30562/04 and 30566/04, Judgment (Grand
Chamber), 2008 Eur. Ct. H.R. 1581, para. 101. See also Leander v. Sweden, Cited Above, pag.49
(“The notion of necessity implies that the interference corresponds to a pressing social need and,
in particular, that it is proportionate to the legitimate aim pursued”)
27 Security Council Resolution 1373, Sept. 28, 2001, Article 2B.
28 Ibid. Article 3A
29 European Court of Justice, Internationale Handelsgesellschaft v Einfuhr, Judgement of
17.12.1970 case 11/70, Page. 150
30 Compromis, 3-5

7
information under the so-called Verismo program was collected from Riesland’s exclusive

economic zone, which is not part of Rieslandic territory 31, and the information from the so-called

Carmen program was collected from Amestonian territory32.

Moreover, section 32 of the SSBA details the minimization procedures to be followed

while collecting foreign intelligence33, safeguarding the rights of any individual that is subject to

the program.

3. The purported programs did not violate any obligation owed to Amestonia
The applicant has also implied that the implementation of the purported mass surveillance

programs resulted in violations of bilateral or multilateral obligations owed to Amestonia, like

those under the Broadcasting Treaty and more general ones regarding sovereignty and territorial

integrity. However, the facts suggest otherwise.

i) Broadcasting Treaty
Article 23(2) of the BT prohibits the station from being used for any other matter not established

in the treaty. In this order, the matters established by the Broadcasting Treaty include fortifying

the friendship between the two countries and strengthening understanding and cooperation

between the peoples of both countries34. Since the information collected from the surveillance

programs was a mechanism utilized for the purpose of strengthening the cooperation between the

parties, as expressed by Prime Minister Silk35, then article 23(2) was not breached by Riesland.

31 In accordance with the UNCLOS article 55-56, Riesland only have a jurisdictional right over
the exclusive economic zone, whereas in the territorial water is in which is recognize a full
sovereignty over the waters. Also see Smith. R. Exclusive Economic Zone Claims: An Analysis
and Primary Documents, p.4.
32 While the premises of VoR were property of Riesland, they were located in Amestonian
territory.
33 Compromis, 5
34 BT, Preamble (a)(b)
35 Compromis, 31

8
v) Territorial Integrity and Sovereignty
Some sources have questioned whether surveillance from another State’s territory would

violate territorial integrity and sovereignty36. Nevertheless, these same sources establish that the

mere fact of acting extraterritorially does not, by itself, constitute a violation, but rather it lays

upon the acting state the burden to prove that the actions were consistent with these principles37.

In this sense, the ICJ has explained that a State violates another’s states territorial and political

integrity when it uses some form of coercion in order to intervene, either directly or indirectly in

a matter that another State has the right to determine for itself 38. At no given moment did

Riesland or any of its authorities made an interference in Amestonian internal affairs or used

coercion against Amestonia, as Amestonia was never prevented from determining any internal

matter. For this reason, the programs cannot be said to be unlawful on this basis.

II- THE ARREST OF MARGARET MAYER AND THE OTHER VOR EMPLOYEES, AND
THE EXPROPRIATION OF THE VOR FACILITY AND ITS EQUIPMENT, VIOLATED THE
BROADCASTING TREATY AND INTERNATIONAL LAW GENERALLY, AND RIESLAND IS
THEREFORE ENTITLED TO THE IMMEDIATE RELEASE OF ITS NATIONALS AND
COMPENSATION FOR THE VALUE OF THE CONFISCATED PROPERTY;

A. The arrest and expropriation committed by Amestonia violated the Broadcasting


Treaty

36 See Weber And Saravia v. Germany cited above, § 83


37 “ As regards allegations that a respondent State has violated international law by breaching
the territorial sovereignty of a foreign State, the Court requires proof in the form of concordant
inferences that the authorities of the respondent State have acted extraterritorially in a manner
that is inconsistent with the sovereignty of the foreign State and therefore contrary to
international law”. Ibid. § 87 & Öcalan v. Turkey, Application No. 46221/99, § 90.
38 Military and Paramilitary activities in and against Nicaragua (Nicaragua v. US), 1986 ICJ 160,
para. 205; see also Corfu Channel (U.K. v Alb.), 1949 ICJ 4, 35 (April 9).
9
1. VoR’s premises, its equipment, and its personnel were protected by immunity
Articles 14 and 15 of the Broadcasting Treaty clearly establish, inter alia, that the

premises of VoR are inviolable, its equipment is immune from expropriation, and its employees

are immune from the criminal jurisdiction of Amestonia. Amestonia is obliged to respect this

immunity, in accordance with the pacta sunt servanda general principle of International Law39,

which states that every treaty in force is binding upon the parties.40

This obligation is reinforced by the fact that both Amestonia and Riesland are parties to

the Vienna Convention on the Law of Treaties, which contains this principle in article 26. 41

Furthermore, publicists agree in that this is a crucial general principle of international law “since

the whole concept of binding international agreements can only rest upon the presupposition that

such instruments are commonly accepted as possessing that quality”42.

The applicant has attempted to establish that these immunities were lost, in accordance

with article 36 of the BT. Nevertheless, this claim is unfounded, as the Voice of Riesland (VoR)

never ceased its functions as established by the BT before Amestonia violated the premises, and

the detainees could not be judged for purported acts allegedly committed while they were

protected by immunity, in accordance with article 15 (1) (c).

i) The facilities did not cease functioning as envisaged by the BT until after Amestonia
breached the Treaty

39 Malcolm N. Shaw “International Law (6th Edition)” p. 103


40 Article 26 of the Vienna Convention on the Law of Treaties (1969)
41 Paragraph 43 of the Compromis
42 Ian Brownlie, Principles of International Law, p. 591-592

10
Article 36 of the BT establishes that the immunities would only cease to have effect when

there is a cessation of the functions of the Station as envisaged by the Treaty. 43 In this sense, the

functions of the station are described in article 2 of the BT, which states that “each station shall

produce and air programs and content including news stories, interviews, documentaries, and

movies produced either in or by the operating country, with local viewers and listeners in the

host country as the target audiences”.

It is a non-contested fact that the facilities were broadcasting programs until the night of

16 February 2015, after the personnel of the facilities was practically forced to leave, having

taken knowledge of the imminent violation of the premises to be committed by Amestonian

officials44. For this reason, the dispositions of article 36 only came to force after that date.

Nonetheless, the employees were still protected by immunity even after this date, in

accordance with article 15 (1) (c), which basically states that they could not be persecuted for

acts committed while they were protected by immunity. This included not being subject to the

criminal jurisdiction of Amestonia.45 For these reasons, Amestonia breached its obligations due

to Riesland under the Broadcasting Treaty.

4. In any event, the facilities and their personnel were protected by diplomatic
immunity, since they were a special diplomatic mission

i) VoR is a special mission

43 Article 36 of the BT
44 Compromis, 27
45 Article 15-1B of the BT

11
A special mission is a temporary mission that represents the State in a specific task 46. In

this sense, there are two main requirements for a diplomatic mission to be considered a special

mission: the mission has to be temporary, and the mission has to represent its sending State in a

specific task. In regards to the first element, the BT established a term of 30 years for the

broadcasting stations to function47, thus fulfilling the requirement of temporality.

As for the second element, the preamble of the BT establishes that the purpose of the

treaty was fortifying the friendship between the two countries, strengthening understanding and

cooperation between their peoples, and offering their citizens radio and television channels that

will reflect the two nations’ dynamic political, cultural, and artistic activity 48. In other words, the

preamble implies that the parties intended to establish a broadcasting station that represents each

sending State, in order to promote their respective culture within the other State, which is a

specific task, configuring the second element.

The purpose of the mission was to fortify the friendship of both nations 49 and to

promote and strengthen the cooperation between their peoples. 50 Amestonia approved the

appointment of each Rieslandic national working at VoR, and granted them documents detailing

their immunities51, which is also required for special missions52.

As a matter of fact, by subscribing the BT53, Amestonia agreed to the creation of a

station on its own soil, to be administered by Rieslandic operators. This served as the channel for

46 Article 1 of the Convention on Special Missions


47 Article 40 of the BT
48 Preamble a), b) , & c) of the BT
49 Excerpts a) of the BT
50 Excerpts b) of the BT
51 Clarification 4
52 Article 8 of the Convention on Special Missions
53 Compromis, 7

12
the consent.54 Last but not least, the designation of Margaret Mayer as head of VoR 55 achieved

the requirement concerning the composition of the special mission 56, fulfilling every established

parameter to be considered a special mission.

vi) Customary International Law grants immunity to special missions

Constant State practice demonstrates that States tend to grant immunity to special

missions, regardless of whether or not they are parties to the Convention on Special Missions.

This posture was upheld by the Criminal Chamber of the German Federal Supreme Court, which

established in the Tabatabai Case that there is constant State practice and opinio juris concerning

granting immunity to special missions by individual agreement.57

There are very few instances in which States have taken a different stance, like the case

of the United States Federal District Court, which failed to recognize the customary element of

special missions58; nonetheless, the US executive branch had a different point of view regarding

the immunities, stating that foreign officials that are provisionally on US soil as a Special

Mission shall be entitled to the immunity from jurisdiction of US Courts. 59 This last posture is

the most common on an international level60.

54 Article 2 of the Convention on Special Missions


55 Compromis, 9
56 Article 9 paragraph 1 of the Convention on Special Missions
57 Decision 27 February 1984 Case No. 4 StR 396/83, 80 ILR (1989) 388 (Germany Federal
Supreme Court)
58 USA v. Sissoko, 121 ILR 599
59 Li Weixum v. Bo Xilai, DCC Civ. 04-0649 (RJL).
60 See Yearbook of the International Law Commission, Volume II (1967), 358 (‘It is now
generally recognized that States are under an obligation to accord the facilities, privileges and
immunities in question to special missions and their members.’) AS CITED AT Akande, Dapo, &
Shah, Sangeeta. Immunities of State Officials, International Crimes, and Foreign Domestic
Courts. The European Journal of International Law Vol. 21 no. 4 © EJIL 2011; p. 822
13
Moreover, this customary immunity is not limited to individuals who are Heads of State,

Heads of Government, or Foreign Ministers as in the case concerning the Chinese Minister of

Commerce and International Trade, in which the US government suggested to give immunity to

the minister.61 In the case concerning Djibouti vs. France, Djibouti relied on the Special Missions

Convention on its written submission, even though none of the parties were part of the

Convention62. The United Kingdom has recognized the customary character of the Convention

on Special Missions, granting immunity to Ehud Barak.63

For these reasons, VoR and its employees were immune to Amestonian jurisdiction, given

their nature as a special mission.

C. The actions of Amestonia constitute internationally wrongful acts, subject to


compensation

1. Amestonia violated its international obligations

i) Pacta sunt servanda


Amestonia violated the principle of pacta sunt servanda when they entered the facilities

of VoR64, took all of its equipment65, and failed to prevent the entry of officials to the premises.66

They also violated this principle when Amestonian officials detained Margaret Mayer and the

two other personnel from VoR.67

61 IBID supra note 28


62 Djibouti v. France, memorial of the Republic of Djibouti, March 2007, par. 131-140
63 Proceedings in England regarding Israeli Minister Ehud Barak, supra note 16: Written
Ministerial Statement by Mr. Henry Bellingham, HC Deb. 13 December 2010, Volume 520,
72WS
64 Compromis, 27. Violation of immunity granted by Article 14 a) of the BT
65 Compromis, 27. Violation of immunity granted by Article 14 b) of the BT
66 Compromis, 27. Violation of immunity granted by Article 14 c) of the BT
67 Compromis, 28. Violation of immunity granted by Article 15 a) of the BT

14
vii) Obligation to protect missions

International law establishes the inviolability of missions 68 and also specifies the

obligation of the receiving State to assure the protection of the mission from any intrusion or

damage.69 This statement was reaffirmed on the case concerning the Hostages in Tehran; when

individuals took over the US Embassy, this Court specified that Iran was placed under the most

categorical obligation as a receiving State to take the appropriate measures to ensure the

protection of the US Embassy and their personnel.70

The ICJ went even further with the Congo v. Uganda case establishing that the

Convention71 not only prohibits any infringements of the inviolability of the mission by the

receiving State itself but also puts the receiving State under an obligation to prevent others, such

as armed militia groups, from doing so. 72 Amestonia had the obligation to protect the premises of

the mission73 as is also mandated by the BT.

International law grants a special protection to the missions, it specifies clearly that the

premises of a mission are inviolable and that agents on the receiving State are not to enter them

without the consent of a mission74. In the present case, the premises were accessed without

authorization of the Head of the Mission. The BT establishes that the premises of the Station, its

furnishings, and other property used in its operation shall be immune from expropriation.75

68 Article 22 paragraph 1 of the Vienna Convention on Diplomatic Relations (1961) / Article 25


paragraph 1 of the Convention of Special Missions (1969)
69 Article 22 paragraph 2 of the Vienna Convention on Diplomatic Relations (1961) / Article 25
paragraph 2 of the Convention of Special Missions (1969)
70 The Iranian Hostages Case, ICJ Reports, paragraph 40 (1980)
71 Article 22 paragraph 1 of the Vienna Convention on Diplomatic Relations (1961)
72 Congo vs Uganda, ICJ Reports, paragraph 342 (2005)
73 Article 14 c) of the BT
74 Article 22 paragraph 1 of the Vienna Convention on Diplomatic Relations (1961)
75 Article 14 paragraph 3 of the BT

15
5. Internationally wrongful acts must result in compensation for the affected party and
Margaret Mayer, along with the other VoR personnel must be released by
Amestonia

States are under an obligation to make full reparation for the injury when they cause an

internationally wrongful act.76 This is catalogued as a principle of international law, and the

reparation itself is the indispensable complement of a failure to apply a convention; this does not

need to be stated in the convention itself.77

It is important to establish that injury is classified as any damage, whether material or

moral, that is caused by the internationally wrongful act of a State. 78 The reparation itself must as

far as possible wipe out all the consequences of an illegal act and reestablish the situation which

would have existed if that act had not been committed. 79 In such sense the Federal Republic of

Riesland is entitled to receive compensation from Amestonia in order to restablish the previous

situation, including the release of all its nationals and compensation for the value of the

confiscate material.

III- RIESLAND’S DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM ACT IS


CONSISTENT WITH ITS OBLIGATIONS UNDER INTERNATIONAL LAW, AND THE COURT
HAS NO AUTHORITY TO ORDER EITHER KAFKER’S RELEASE OR THE DISCLOSURE
OF THE INFORMATION RELATING TO HIS APPREHENSION

A. Riesland’s detention of Joseph Kafker under the Terrorism Act is consistent with its
obligations under International law
76 Article 31 paragraph 2 of the Draft articles on Responsibility of States for Internationally
Wrongful Acts (2001)
77 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, paragraph
21 (1927)
78 Article 31 paragraph 2 of the Draft articles on Responsibility of States for Internationally
Wrongful Acts (2001)
79 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, paragraph
47 (1927)
16
1. Joseph Kafker represents a threat to Riesland’s public safety and national security
in the terms of the Terrorism Act
The acts perpetrated by activists involving the planned contamination of a large shipment

of honey destined for consumption in Riesland constitutes a serious criminal offence condemned

by various international instruments that altogether make up a common model sought to tackle

the question of terrorism.80 Specifically, these actions are consistent with the definition of

Terrorist Act in the terms of the International Convention for the Suppression of the Financing of

Terrorism81 as referred in the Terrorism Act82. These actions are also consistent with those

criminal offences condemned by the United Nations Declaration on Measures to Eliminate

International Terrorism83

This offence, considered together with two initial hostilities, namely the arson attack and

the following white powder incident, indicate that there is enough evidence that suggests that

these hostilities are all connected as they have been carried out by an organized group or groups

of environmental activists, whose common objective is to compel, by any means necessary, the

governments of Riesland and Amestonia, to ban the use of neonics in agriculture. The ring of

college students involved in this failed terrorist attempt identified themselves as being part of a

group of environmentalists which they called “The Hive”.

80 The UN has currently adopted thirteen international conventions concerning terrorism. Many
of these conventions operate on a common model, establishing the basis of quasi-universal
jurisdiction with an interlocking network of international obligations (Shaw, Pg.1160).
81 Art. 2.1(b)
82 Terrorism Act, Art.1
83 General Assembly Res. 49/60,Paragraph 3

17
A memorandum exposed by the Ames Post later revealed that Joseph Kafker is

considered a high-level suspect with ties to a group of environmentalists known as “The Hive”,

including the planned contamination of a large shipment of honey.

6. The detention of Joseph Kafker is under the Terrorism Act is consistent with the
procedural safeguards provided by Article 9 of the ICCPR

i) Right to be informed of the reasons for the detention


On 7 March 2015, Kafker was detained by the police in accordance with the Terrorism

Act84. By acknowledging that the detention was undertaken in accordance with the Terrorism

Act, it is evident that the nature of the alleged charges against Kafker is terrorism related and

therefore of great importance towards securing Riesland’s national security. In other words, it has

always been of Kafker’s knowledge that his arrest was based on his suspected links with terrorist

activities.

International law requires that anyone who is arrested shall be informed of the reason for

his arrest sufficiently enough as to enable him to take immediate steps to secure his release if he

believes that the reasons given are invalid or unfounded. 85 86 The information provided to Kafker

about his detention met this criteria, as he was able, parting from this knowledge, to select his

Special Advocate87 and be provided with consular assistance88.

While the ICCPR requires that anyone who is arrested shall be informed, at the time of

arrest, of the reasons for his arrest and shall be promptly informed of any charges against him 89,

84 Compromis, Par.32
85 Macken. Pg.19
86 United Nations Body of Principles for the Protection of All Persons under Any Form of
Detention, Article 10
87 Compromis, Par.33
88 Clarification Num.6
89 ICCPR Art. 9(2)

18
Kafker’s arrest was of a preventive nature, not an arrest based on charges, therefore, no charges

needed to be informed. Generally, the reason for the detention must enable the detainee to

discern the substance of the complaint against him.90 However, the accused need not be shown a

written arrest warrant, nor given a full explanation.91

viii) Right to trial within a reasonable time


The right to trial within a reasonable time contained in Article 9(3) of the ICCPR only

applies to those ‘arrested or detained on a criminal charge’. As it was previously stated, Kafker

was brought into custody as a preventive measure, not due to a criminal charge. Preventive

detention, by definition, is based on predictive criminal conduct and not on a specific criminal

charge92, hence, the described provision is not applicable to Kafker’s detention.

In Kulomin v. Hungary, the Human Rights Committee confirmed that the first sentence of

Article 9(3) of the ICCPR is intended to ‘bring the detention of someone charged with a criminal

offence under judicial control’.93 General Comment 8 of the Human Rights Committee also

supports the criteria that the right to trial within reasonable time contained in Article 9(3) only

applies to detention in which a criminal charge is brought, necessarily precluding its application

to preventive detention.9495

The aforementioned indicates that the ICCPR does not regulate the permissible length of

detention for a person in preventive detention. The right to be brought promptly before a judge
90 Scott N Carlson and Gregory Gisvold, Practical Guide to the International Covenant on Civil
and Political Rights (2003), 84.
91 American Bar Association, Handbook of International Standards on Pretrial Detention
Procedures. Pg.7.
92 Macken. Pg.20
93 Vladimir Kulomin v Hungary, Communication No 521/1992, UN Doc CCPR/C/50/D/
521/1992.
94 Human Rights Committee, General Comment 8, Article 9 (Sixteenth Session, 1982),
UNDoc.HRI/GEN/1/Rev.1, 8 (1994).
95 Macken. Pg.16

19
should be sought in the prohibition against arbitrary arrest and detention96. It is this prohibition

that protects a person in preventive detention from indefinite detention. 97 In this sense, Kafker

was brought before a judge within three days of his detention98, in accordance with the Terrorism

Act99, safeguarding this particular right.

If a person is arrested and detained without criminal charge, after a certain period of time

it appears beyond dispute that the detention will offend the prohibition on arbitrary arrest and
100
detention. In considering what amount of detention time is reasonable, the authority must

examine all the circumstances arguing for or against the existence of a genuine public interest

justifying, with due regard to the presumption of innocence, a departure from the rule of respect

for individual liberty.101 Simply put, the judicial officer must determine whether the justification

that serves as the basis for the detention can justify the time the detainee has spent in detention.

Nevertheless, the proportionality of the detention period to the penalty that may be imposed for

the offense is also a highly relevant factor when it comes to determining the length of preventive

detention.102

If there is a reason to believe that Kafker might be involved in terrorist activities against

Riesland, the maximum period of custody under the Terrorist Act will be justified as the

accusations against him are of great concern to Riesland’s national security.

ix) Right to challenge detention

96 ICCPR Article 9(1)


97 Macken. Pg.22
98 Compromis, Par. 32, 33
99 Terrorism Act, Subsection (b)
100 Macken. Pg.22
101 American Bar Association, Handbook of International Standards on Pretrial Detention
Procedures. Pg.11
102 Council of Europe, Recommendation (2006)13 on the Use of Remand in Custody, the
Conditions in which it takes place and the Provision of Safeguards against Abuse, para. 22(2).
20
Anyone who is deprived of his liberty by arrest or detention is entitled to take

proceedings before a court, in order to challenge without delay the lawfulness of his detention. 103
104
By “court” it should be understood the ICCPR is referring to a body with judicial character

that has the ability to order the detainee’s release. 105 The Human Rights Committee has

interpreted that the right to review the lawfulness of detention contained in Article 9(4) of the

ICCPR applies to all persons deprived of their liberty, including those in preventive detention.106

Since the right to trial within reasonable time only applies to detention in which a

criminal charge is brought, then the right to review the legality of detention by a court becomes

extremely important for those in preventive detention, especially when we consider that the right

under article 9(4) of the ICCPR is the only judicial remedy available to them.107

The ICCPR also requires that this judicial review of the lawfulness of the detention be

done “without delay”.108The Human Rights Committee argues that the question of whether a

decision was reached without delay must be assessed on a case by case basis and by no means

has this requirement suggested that there should be precise deadlines for the handing down of

judgments.109 Similarly, the European Convention on Human Rights demands that the decision

over the lawfulness of the detention be determined “speedily,” and the European Court of Human

103 ICCPR Article 9(4)


104 United Nations Body of Principles for the Protection of All Persons under any Form of
Detention or Imprisonment, Principle 11
105 A. v. Australia, Communication No. 560/1993 ¶ 9.5.
106 Human Rights Committee, General Comment 8, Article 9 (Sixteenth Session, 1982),
UNDoc.HRI/GEN/1/Rev.1, 8 (1994).
107 Macken. Pg.25
108 ICCPR Article 9(4)
109 Mario Ines Torres v Finland, Communication No.291/1988: Finland 05/04/90, [7.2].

21
Rights evaluates speediness depending on the nature and circumstances of the detention, rather a

bright-line rule.110

On 7 March 2015, Kafker was detained by the police 111 and on 10 March 2015, Kafker’s

case was brought before the National Security Tribunal 112, hence, judicial review was effective

after a three day delay. Although the Human Rights Committee has not clarified the meaning of

the phrase “without delay,” it has found delays of 5 weeks and of 3 months to be in violation of

the ICCPR Article 9(4).113 In Hammel v Madagascar, the three day delay, during which time it

was impossible for the author to gain access to a court to challenge his detention, was held to

breach Article 9(4).114 However, as we previously mentioned, the question of whether a decision

was reached without delay must be assessed on a case by case basis.

The particular circumstances and reasons of Kafker’s detentions are not the same or even

similar to those in Hammel v. Madagascar. In the latter case, Eric Hammel was kept in

incommunicado detention in a basement cell and subsequently deported. On the other hand,

Amestonia was immediately informed of Kafker’s detention when he was apprehended, and he

was afforded the right to communicate promptly with family members and given consular

assistance. 115

D. The Court has no authority to order either Kafker’s release or the disclosure of the
information relating to his apprehension.

110 American Bar Association, Handbook of International Standards on Pretrial Detention


Procedures. Pg.14
111 Compromis, Par.32
112 Compromis, Par.33
113 American Bar Association, Handbook of International Standards on Pretrial Detention
Procedures. Pg.14
114 Eric Hammel v Madagascar, Communication No. 155/1983 (2 April 1986), UN Doc.
CCPR/C/OP/2, 11 (1990) referred to in Macken Pg.26
115 United Nations Body of Principles for the Protection of All Persons under Any Form of
Detention, Article 16.
22
1. The Court has no authority to order Kafker’s release
It follows from the nature of the sovereignty of states that a nation must not intervene in

the domestic affairs of another nation. 116 Accordingly, the UN Charter declares that the United

Nations cannot intervene in matters which are essentially within the domestic jurisdiction of any

state or shall require the members to submit such matters to settlement under the present

Charter.117 In consequence, the detention of Joseph Kafker falls into the domestic jurisdiction of

Riesland as the detainee is suspected of committing offences against Riesland in accordance with

the Terrorist Act.118

On another matter, the purpose of a periodic review of Kafker’s detention is for the

Tribunal to evaluate whether the conditions have changed in order to allow for the detainee’s

criminal prosecution or release.119 Accordingly, Kafker remains detained as his detention has

been extended by the Tribunal every 21 days120. In other words, the extension of Kafker’s

detention suggests that he still remains a high level suspect in accordance with the Terrorism Act

and therefore his release could endanger Riesland’s national security and public safety.

Furthermore, at the time of Kafker’s arrest a Terrorism Alert was in place. 121 A Terrorist

Alert is issued when there is a credible danger of an imminent terrorist act being committed in

(or against122) Riesland. Several Terrorist Alerts have been in force in a continuous manner
116 Shaw, Pg.647
117 UN Charter, Article 2(7)
118 Compromis, Par.32
119 Terrorist Act. Subsection (g)
120 Compromis, Par.33
121 A Terrorism Alert was declared on October 2014 (Compromis, Par.18), while Kafker was
detained on March 2015 (Compromis, Par.32).
122 The territoriality principle that serves as the primary ground for the exercise of criminal
jurisdiction in international law not only encompasses crimes committed wholly on the territory
of a state but also crimes in which only part of the offence has occurred in the state. Accordingly,
courts are likely to look at all the circumstances in order to determine in which jurisdiction the
23
throughout all of the duration of Kafker’s detention. This situation clearly indicates that a state of

emergency is in place regarding the possibility of new terrorist activities being directed against

Riesland, thus making it all the more necessary to maintain under detention an individual who

has been directly linked to The Hive’s senior echelons.123

7. The Court has no authority to order the disclosure of the information relating to
Kafker’s apprehension
The applicant demands that Amestonia is entitled to the disclosure of all information

which formed the basis of Kafker’s apprehension. Nevertheless, as the Rieslandic Foreign

Minister emphasized, disclosure of the information concerning Kafker’s apprehension would

seriously endanger the integrity of particular intelligence sources and therefore the national

security of Riesland.

i) State Practice regarding non-disclosure of the information that serves as a basis for
preventive detention
In understanding the broader context of Riesland’s Terrorism Act, and analyzing whether

non-disclosure of information regarding Kafker’s apprehension is necessary, it is useful to look

at other democracies that have dealt with asymmetric terrorist threats and observe how they have

handled material relating to the detention of terrorist suspects. Specifically, Britain and Israel

offer two of the few available sources of recent experience in attempting to reconcile the

demands of national survival and the rule of law in the context of a constant terrorist threat.124

a. Israel

substantial or more significant part of the offence in question was committed (Shaw, Pgs. 655-
656).
123 Compromis, Par.36
124 Stephen Schulhofer, “Checks and Balances in Wartime: American, British and Israeli
Experiences,” Michigan Law Review 102 (August 2004)
24
In Israel, the Emergency Powers (Detentions) Law of 1979 (EPDL) provides that during

the detention proceedings, the judge sees all the evidence, even if it is classified, and the judge

decides what evidence may be disclosed to the detainee and his/her counsel, hence, some

detainees are held without knowledge of the specific allegations against them. 125 One rationale

for Israel’s administrative detention policy under the EPDL is to protect the sources and methods

that led to the apprehension of the detainee in the first place.126

b. United States

Like Israel the United States attests that preventive detention is needed when evidence is

classified or when they do not want to compromise methods and sources. 127 The United States

enemy combatant policy goes even further thus implementing an indefinite and largely

incommunicado detention128 that by definition implies, among other things, not allowing

disclosure of classified material pertaining to a detainee’s apprehension.

c. United Kingdom

Persons detained under Riesland’s Terrorism Act may be represented by “Special

Advocates” who possess appropriate security clearance. These Special Advocates may not

disclose closed materials or discuss them with the detainee without the Tribunal’s

authorization129. Similarly, under the 2001 Anti-Terrorism, Crime, and Security Act (ATCSA) 130,

125 Cooper Blum. Preventive Detention in the War On Terror.Pg.6


126 Gross. Human Rights, Terrorism and the Problem of Administrative Detention in Israel.
Pg.762.
127 Cooper Blum. Preventive Detention in the War On Terror.Pg.13
128 Cooper Blum. Preventive Detention in the War On Terror.Pg.13
129 Terrorism Act. Subsection (i)
130 In the aftermath of the September 11 attacks in New York and Washington D.C, Britain
adopted the 2001 Anti-Terrorism, Crime, and Security Act (ATCSA). Although the
aforementioned act provided the executive with stronger powers to investigate and prevent
terrorist activity, the ATCSA did provide some judicial relief. Source: Stephanie Cooper Blum.
Preventive Detention in the War On Terror. Pg.16
25
classified information that served as the basis for a detainee’s apprehension, was only made

available to a security-cleared special advocate. This special advocate was precluded from

further communication with the detainee once he received the classified information. 131

IV- THE CYBER ATTACKS AGAINST THE COMPUTER SYSTEMS OF THE AMES POST
AND CHESTER & WALSINGHAM CANNOT BE ATTRIBUTED TO RIESLAND, AND IN ANY
EVENT DID NOT CONSTITUTE AN INTERNATIONALLY WRONGFUL ACT.

A. The cyber attacks cannot be attributed to Riesland

1. The standard of proof to be used must be evidence beyond a reasonable doubt


Since the State of Amestonia is attempting to prove a violation of international law

committed by Riesland, it bears the burden of proof to support its claims, in light of the principle

of actori incumbit probatio, which has been constantly upheld by this Court132. Indeed,

international justice relies on truth and right, therefore any statement that is not agreed upon by

the parties needs to be proven with sufficient evidence before the court, in order to support such

claim.

In that sense, as it has been pointed out before in the present submission by the

Respondent133, international jurisprudence has been clear in establishing that when a claim of

grave nature is brought upon a state, the evidence must be fully conclusive 134. For this reason, it

becomes clear that, at least in cases of grave claims, like the case at hand, the standard of proof

131 Donohue. Britain’s Counterterrorism Policy. Pg22. Cited at Stephanie Cooper Blum.
Preventive Detention in the War On Terror. Pg.16
132 Nicaragua
133 See pleading 1A of the respondent.
134 Supra, note 000000

26
to be followed is the standard of evidence beyond a reasonable doubt 135, resembling what would

happen in criminal cases in most domestic and international jurisdictions136.

8. Amestonia failed to provide sufficient conclusive and evidence linking the alleged
cyber-attacks to Riesland
The admissibility of any evidence in international jurisdictions will generally depend on

its probative value137. As part of the process of assessing this probative value, the court must take

into account the source from which the parties obtain the information from, which is essential to

evaluate the independence and impartiality of the source138. However , while the initial

evaluation of reliability involves the sources of evidence, then the evaluation of credibility

concerns the information provided by the source and answers the question of whether the

information should be believed or not.139

In light of this norm, the Court must assess the probative value of the evidence presented

by Amestonia, which, for this particular claim, seem to consist in a report made by the

Amestonian Institute of Technology. While this institution has been referred to as “a well

renowned research intensive academic institution”, the fact that the institution is of Amestonian

origin, as well as the non-participation of the respondent in the examinations, might compromise

the impartiality of the evidence, which is required for it to have any probative value.

Nonetheless, even if the Court were to trust this source, the fact that source of the evidence can

135 ICJ, 9.4.1949, United Kingdom v Albania, ICJ Rep 1949, 4, 17-18

136 C. TAPPER (ed) Cross and Tapper on Evidence, 2007, 169 et seq; K. BROUN (ed)
McCormick on Evidence, II 2006, § 341, 490 et seq CITED ON Kinsch, Patrick. On The
Uncertainties Surrounding The Standard Of Proof In Proceedings Before International Courts
And Tribunals, INDIVIDUAL RIGHTS AND INTERNATIONAL JUSTICE, Giuffrè Editore,
Milan - 2009
137 Rome statute, art. 69 (4)
138 The Reliability of Open Source Evidence In the International Criminal Court page 29
139 Ibd. 48

27
be considered reliable does not necessarily mean that the information delivered by the source is

also credible.140 Indeed, known and trusted sources might make mistakes; for example, “an NGO

which has provided trustworthy information in numerous previous reports could still make

mistakes in its research and preparation”141.

This is especially important when it comes to evaluating this particular alleged action, as

the perpetrators of cyber attacks are usually very careful to cover their tracks in order to frame an

innocent person, entity or government, employing measures sufficiently sophisticated as to fool

even the most professional institutions. This action is popularly known as “spoofing”, and it

entails the actions of commandeering one computer with code that covers that computer into a

platform for attacking a second computer, in order to “spoof” other IP addresses so that the

originally sent message is distinguished as another machine142.

In this same line, Rule 7 of the Tallinn Manual established that “the mere fact that a cyber

operation has been launched or otherwise originates from governmental cyber infrastructure is

not sufficient evidence for attributing the operation to that State”.143

For these reasons, the report from AIT cannot be considered as evidence that is

conclusive enough to meet the criteria required by the standard of proof that necessarily has to be

adopted, as has been previously explained, in accordance with the previous decisions of this

Court.

E. In any event, the purported actions did not constitute an internationally wrongful
act

140 Kupreskic et al., AC, (IT-95-16-A), 23 October 2001 para 138


141 The Reliability of Open Source Evidence In the International Criminal Court page 39
142 See David Clarck and Susan Landau, “Untangling Attribution “ (2011) 2 harvard National
Seurity Journaul 533
143 Tallinn Manual rule 7

28
1. The cyberattacks against the computer systems at the Ames Post and Chester and
Walsingham do not amount to a use of force
The threat or use of force is one of the principles in International Law that has been

recognized as representation of customary international law.144 A threat of use of force consists in

an express or implied promise of a resort to force conditional on non-acceptance of certain

demands of the respective government.145 It is important to clarify that the threat would depend

upon whether the particular use of force would be directed against the territorial integrity of a

State.146

According to the Nuclear Weapons Advisory Opinion the Court stated that the

possessions of nuclear weapons did not itself constitute a threat, but instead that the State who’s

alleging such threat must demonstrate that they indeed perceived such coercion, and by such

could not act normally within their borders.147 Amestonia never demonstrated that they perceived

coercion through the actions of Riesland.

The main requirement for an action to be considered a cyber-attack is that said action

alters, disrupts, deceives, degrades or destroys adversary computer systems or networks or the

information resident in or transiting these systems or networks 148. Under this new paradigm, a

cyberattack amounts to an armed attack within the scope of Article 51 if its consequences are

comparable to those caused by a conventional attack employing kinetic force. 149 For instance,

absent kinetic force, a State’s use of biological or chemical weapons triggered by means of a

144Nicaragua paragraph 100


145Ian Brownlie, International Law and the Use of Force by States (OUP 1963) p. 364
146Malcolm Shaw, International Law 6th edition p. 1125
147Nuclear Weapons Advisory Opinion paragraphs 37-50 (1996)
148 National Research Council of the National Academies (2009) Technology, Policy, Law and
Ethics Regarding U.S. Acquisition and Use of Cyberattack Capabilities. p. 19
149 Ziolkowski. Pg.622

29
cyberattack would definitely fall into the scope of an armed attack 150. Accordingly, it would be

far-fetched to say that the damage caused by the cyberattacks on Amestonia constitutes an armed

attack. In the case of the cyberattacks against Chester and Walsingham and the Ames Post, it

hasn’t been demonstrated that these attacks constitute international wrongful acts in the form of

armed attacks.

9. In any event, international law permits the use of force as self-defense

i) The Ames Post and Chester and Walsingham were posing a imminent threat to
Rieslandic national security
There has been extensive controversy as to the precise extent of the right of self-

defense.151 The ICJ has established that there is a natural or inherent right to self-defense and it is

hard to see how this can be other than a customary nature 152, in other words it recognized the

customary character of self-defense. To resort to self-defense a State has the obligation to

demonstrate that it has been victim of an attack and it bears the burden of proof. 153 Riesland has

demonstrated the violations from part of Amestonia regarding the use and the release of the

documents illicitly obtained.154

Article 51 of the UN Charter proportionate the mechanism for States under what

circumstances may they act in self-defense, which is with an authorization of the Security

Council.155 However there has been a new mechanism to act in self-defense which is in the

presence of an “imminent threat”. It has been recognized the applicability of self-defense in

150 Ziolkowski. Pg.622

151 Article 21 of the International Law Commission’s Articles on State Responsibility (2001)
152 Nicaragua paragraphs 14,94
153 The Oil Platforms (Iran v. US) case, ICJ Judgement, paragraph 161, 189 and 190 (2003)
154 Paragraph 22 of the Compromis
155 Article 51 of the UN Charter

30
scenarios of imminent threat.156 In any event, if the actions of Riesland were to be considered a

use of force, they had the cause to act in self-defense, because their purpose was to protect its

own national security.157

156 Contemporary Practice of the US, 93 AJIL, p.161 (1999)


157 Paragraph 35 of the compromis
31
PRAYER FOR RELIEF

In light of the foregoing reasons, the Federal Republic of Riesland respectfully requests

this Honorable Court to adjudge and declare that:

A. The illicitly-obtained documents were inadmissible before this Court, and in the case this

Court does find them admissible, they did not evidence any breach by Riesland of an

international obligation to Amestonia;


B. The arrest of Margaret Mayer jointly with the other VoR employees and the expropriation

of the VoR facility and its equipment, did constitute a violation to the Broadcasting

Treaty, therefore Riesland is entitled to the immediate release of its nationals and a

compensation for the value of the confiscated property;


C. The detention of Joseph Kafker under the Terrorism Act was consistent under

international law, and the Court does not possess the authority to order its release or the

disclosure of information relating to his apprehension; and


D. The cyber attacks against the computer systems of The Ames Post and Chester &

Walsingham cannot be attributed to Riesland, and did not constituted an internationally

wrongful act.

Respectfully Submitted on Behalf of the Respondent

32