Moot Court Competition Asia Cup 2008

Amaron v.s. Rinpeen

The case of an individual who was detained in the course of an enforcement action*

Amaron, Rinpeen and Kman are members of the United Nations. They are parties to the Geneva Conventions of 12 August 1949, although only Amaron and Rinpeen are parties to the two Additional Protocols. All three are parties to the Hague Regulations of 1907 and the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights.

After radical activists took power in Rinpeen in 2000, they curbed the political activities of all who opposed them while providing assistance to radicals in other countries. The ideology of the Kman government was at odds with that of Rinpeen, and disagreements between them have frequently led to diplomatic tensions. For its part, Amaron was neutral on the political ideological and diplomatic tensions between them.

In early 2005, suspicions grew that both domestic and international radicals receiving assistance from the Rinpeen government had been involved in a terrorist attack in Kman. In September 2005, the Security Council of the United Nations affirmed that international terrorism was a crime and a threat to international peace and security, and it adopted a resolution calling upon all member states to prohibit the provision of funding or supplies/communication technologies to terrorists, in accordance with Chapter Ⅶ of the Charter of the United Nations.1

In October 2005, Kman forces invaded Rinpeen.2 They overcame resistance and in November occupied the capital. By December, Rinpeen was completely under Kman’s control, its radical regime having collapsed and some of its leaders arrested by Kman forces, although most managed to escape the country. Three allied countries cooperated

1 The resolution was proposed by Kman and its allies. As tensions were running high between Rinpeen and Kman, it was almost certain that Rinpeen was providing assistance to a third country whose territory was being used by terrorists as a base from which to take action against Kman. 2 Just prior to its invasion of Rinpeen, Kman informed the chairperson of the Security Council of its intentions, and understood its message to have been acknowledged.

1 with Kman in its invasion.3 While the radical regime was in power, anti-regime factions took care to conceal their whereabouts or went into exile. In March 2006, they re-emerged and, with the support of Kman forces, came together to establish a new government. . To this end, Kman declared that it would withdraw its forces from Rinpeen, leaving behind only some necessary personnel, and transferring all power to the new government. The new Rinpeen government then made it illegal to aid the ousted radical regime in any way, although it declared it would honor all international agreements into which previous governments of Rinpeen, including the radical regime, had entered.

At the outbreak of the armed conflict between Kman and Rinpeen, Amaron pulled its diplomatic mission out of Rinpeen. After the new government was established, Amaron entered into on resuming diplomatic ties, and an agreement was concluded in August 2006 that included the following articles:

Article X: Rinpeen is obligated to compensate Amaron and its nationals residing in the territory of Rinpeen for any losses suffered as a consequence of acts in violation of international law that were committed during the period between the invasion of Kman forces in October 2005 and the effectuation of the agreement in August 2006. Article Y: In the event of a dispute regarding Article X, the contracting parties agree to refer the issue to the International Court of Justice.

In 2001, when the radical Rinpeen regime was in power, it established the Research Center for Advanced Technology (RCAT) in the capital city to promote and develop sophisticated technology. During the occupation, Kman forces allowed academic and educational activities, including those of RCAT, to continue. Occupation forces seized RCAT documents and computers, however, in a search for that international law had been violated. The leaders of RCAT appointed by the radical regime fled before the fall of the capital, but some of the remaining personnel, mostly technical staff, were held for questioning concerning their duties, and some were detained by occupation authorities.

Mr. Akinao, a physicist from Amaron under to the radical Rinpeen regime, had

3 While there were some who aided Kman’s operations in Rinpeen, others opposed them because they felt that the decision of the Security Council was without an explicit legal basis.

2 been sent to RCAT without his family to assist Rinpeenian staff in the acquisition of advanced technology. The contract was for one year, beginning June 2005, and imposed on Akinao the obligation to keep all information regarding his duties at the Center strictly confidential.4 As soon as Kman invaded Rinpeen, the government of Amaron warned him what was afoot, and Akinao immediately requested permission from the Rinpeen government to return home, but the Rinpeen government insisted that he was obligated to fulfill the terms of his contract and denied his request. When the search of RCAT was conducted, Akinao was detained by Kman forces together with Ranpeenian staff. He was allowed to remain at his residence on campus but could not leave campus, unless it was to appear at headquarters in connection with the inquiry. He was prohibited from using a computer, his mail was censored, and he was forbidden to communicate with his colleagues.5

After he was detained, Akinao was informed that the authorities of Kman were conducting an investigation to determine whether, at the instructions of the radical Rinpeen regime, RCAT had gained illegal access to other computer systems and succeeded in doing massive damage to files, a problem that was plaguing several countries at the time, including Kman, and thus whether Rinpeen had been promoting cyber-terrorism.. Akinao told his interrogators that he and his colleagues at RCAT had not been in a position to have engaged in communication with the highest levels of the Rinpeen regime on this or any other subject. The authorities for their part said that only by investigating the activities of RCAT technical staff could they hope to discover and publicize any international crimes committed by the radical Rinpeen regime, since high-level government staff and the directors/top staff members of the Center had fled the country .

One month into his detention, Mr. Akinao asked the authorities to release him and give him permission to return to his home country, as he believed he had given abundant proof he was above suspicion. The authorities responded that they needed to continue to investigate the staff because data appeared to have been intentionally erased from RCAT computers and an analysis based solely on that information was therefore impossible. They added that had Akinao revealed the passwords or code numbers they believed he knew, he would long since have been able to return home. Akinao in turn insisted he had been in no position to have access to such information, and even if he had been, would

4 Rinpeen law imposes severe penalties for divulging national secrets. 5 Life on the RCAT campus was not as onerous as it might have been, as residents had access to a bank, restaurants, stores, and other amenities.

3 not have divulged it because it was confidential.

Knowing that a new government had been established in Rinpeen in March 2003, Akinao then requested via the occupation authorities that it disclose the reason for his detention6 and that it permit him to return home. The authorities replied, however, that such requests were futile, as the new government of Rinpeen was still a government in name only, with no executive organization or real authority.

Three months later, in June 2006, Akinao was suddenly released and allowed to return home.

Having done so, Akinao called for the government of Amaron to request an apology and financial compensation from the Rinpeen government for the manner in which he was treated during his detention in Rinpeen. In January 2007, the government of Amaron accordingly demanded that the government of Rinpeen provide compensation for damages relating to the ill-treatment of Akinao, in accordance with the agreement of August 2006. The government of Rinpeen rejected this claim. Eventually, the two countries agreed to refer the dispute to International Court of Justice (ICJ), as negotiations had reached a dead end.

When Amaron and Rinpeen appeared before the ICJ, reports in the press on the positions they presented were as follows:

The argument of Rinpeen: The ousted government of Rinpeen had committed international crimes. These had been identified as a threat to international peace and security by the Security Council, which for that reason called for enforcement measures to be taken. The search for RCAT was carried out in the course of the implementation of those measures, in which all member states of the United Nations, including Rinpeen and Amaron, were bound by the Charter to assist.

The argument of Amaron: What Kman had produced in Rinpeen was in actuality an armed conflict. Even if its actions were taken as part of the enforcement measures called

6 Kman is preparing to conclude the Convention on Cybercrime adopted by the Council of Europe in 2001 by revising its criminal and related legislation, some of which has already come into effect. In contrast, Rinpeen has no laws against cyber-crime. In investigating Akinao, Kman authorities appeared to be acting on the basis of its own laws against such crime.

4 for by the Security Council, Kman should have observed international humanitarian laws, as every state was bound to do in the course of armed conflict. Therefore it was Kman that had breached international law.

The counter-argument of Rinpeen: Every party to an armed conflict was bound by international humanitarian law as to the action it could take. There was nothing illegal about the action taken by Kman in Rinpeen, in the light of the rights that occupation powers had under international law.

The counter-argument of Amaron: International crime should be prosecuted in a manner consistent with human rights. Akinao had been treated inhumanely in the territory of Rinpeen. In any case, in accordance with the agreement between Amaron and Rinpeen and international law, Rinpeen was obligated to provide compensation for the losses suffered by Akinao.7

The applicant, Amaron, requested the ICJ to adjudge and declare as follows: Mr. Akinao, a national of Amaron, was suffered losses that were due to a breach of international law that took place in Rinpeen in the period between the invasion of Rinpeen mounted by Kman forces in October 2005 and the effectuation of the agreemnt between Amaron and Rinpeen in August 2006.

The defendant, Rinpeen, requested the ICJ to adjudge and declare as follows: Mr. Akinao, a national of Amaron, suffered no losses that were due to a breach of international law in Rinpeen in the period between the invasion of Rinpeen mounted by Kman forces in October 2005 and the effectuation of the agreemnt between Amaron and Rinpeen in August 2006.

*This case is not intended to be a description of any actual situation. The copyright for the case belongs to the organizer of the International Law Moot Court Competition, Asia Cup 2008.

7 Amaron and Rinpeen agreed at this stage of the suit to ask the ICJ to rule only on the question of whether there had been a breach of international law, and not on the extent of the damages that might have to be rewarded as a result of the decision.

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