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The Peace Palace the Hague, the Netherlands INTERNATIONAL COURT OF JUSTICE THE PEACE PALACE THE HAGUE, THE NETHERLANDS THE 2009 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION THE CASE CONCERNING OPERATION PROVIDE SHELTER AND THE DIFFERENCES ARISING BETWEEN ALICANTO AND RAVISIA THE REPUBLIC OF ALICANTO (APPLICANT) V. THE COMMONWEALTH OF RAVISIA (RESPONDENT) MEMORIAL OF THE APPLICANT As submitted to the Court on 12 January 2009 ILSA Journalof Int'l & ComparativeLaw [Vol. 16:1 TABLE OF CONTENTS INDEX OF AUTHORITIES ............................................................................. 352 STATEMENT OF JURISDICTION ................................................................... 358 Q UESTIONS PRESENTED ............................................................................. 359 STATEM ENT OF FACTS ............................................................................... 360 SUM MARY OF PLEADINGS ......................................................................... 364 PLEA DIN GS ................................................................................................ 366 1. THE PRESENCE OF THE RAVISIAN MILITARY FORCES IN ALICANTO HAS BEEN AND CONTINUES TO BE FULLY JUSTIFIED UNDER INTERNATIONAL LAW .......................................................... 366 A. Ravisia's right of humanitarianintervention justifies OPS....366 1. Humanitarian intervention is an exception to the prohibition on the use of force ........................................ 366 a. There is an imminent threat of humanitarian emergency ................................................................. 367 b. The use offorce is necessary..................................... 367 c. The SC is unable to take action................................. 367 d. The intervention is proportionate.............................. 368 e. The authorisationconstitutes collective action......... 368 2. The 'Responsibility to Protect' doctrine does not app ly ................................................................................ 36 8 B. Alternatively, OPS isjustifiedby Ravisia's obligation to prevent genocide in Alicanto............................... 368 1. There is a customary obligation to prevent genocide ...... 368 2. The obligation to prevent genocide arose when Ravisia learnt of a serious risk ........................................ 369 3. Use of the term 'ethnic cleansing' does not preclude a finding of imminent genocide ......................................... 370 4. The obligation to prevent genocide fell upon Ravisia due to its capacity of influence ........................................ 370 5. Thejus cogens obligation to prevent genocide is not limited by article 2(4) ...................................................... 371 C. The SC authorisedOPS .......................................................... 371 1. The SC impliedly authorised the use of force ................. 372 II. DECLINE To CALL UPON RAVISIA To PRODUCE ITS CLASSIFIED INTELLIGENCE, OR IN THE ALTERNATIVE, DECLINE TO AFFORD ANY EVIDENTIARY BENEFIT SHOULD RAVISIA CONTINUE To WITHOLD THE INTELLIGENCE, AND DECLARE THAT THE SECRETARY-GENERAL MAY NOT LAWFULLY HAND IT OVER To ALIC ANTO .................................................................................. 372 2009] DistinguishedBrief A. The Court should decline to call upon Ravisia to produce its classified intelligence......................................................... 373 1. The intelligence is not necessary to elucidate any m atter in issue .................................................................. 373 a. First,multiple sources independently establish the m atters in issue......................................................... 373 b. Secondly, two pieces of alternativeevidence diminish the needfor the intelligence....................... 374 c. Thirdly, the intelligence is not necessary because the Secretary-General'sreport may be used as a substitute................................................................... 374 2. Alternatively, the Court should decline to exercise its discretion to call upon the evidence ................................ 375 B. In the alternative, the Court should decline to afford Alicanto any evidentiary benefit should Ravisia continue to w ithhold the intelligence......................................................... 375 1. The Court should not draw an adverse inference against R avisia ................................................................. 375 2. Ravisia may discharge its burden of proof with a prim a facie case ............................................................... 376 C. The Secretary-Generalmay not lawfully hand the classified intelligence over to Alicanto................................... 376 1. The Court lacks jurisdiction to determine the obligations of the Secretary General as the UN constitutes an indispensable third party ........................... 376 2. Alternatively, Alicanto lacks standing with respect to the m erits of their claim .................................................. 377 3. If the Court does hold that the Applicant has standing, the Secretary-General may not lawfully hand over the intelligence to Alicanto pursuant to a treaty between Ravisia and the U N ......................................................... 378 III. FIND THAT THE CONDUCT OF RAVISIAN TROOPS WHILST STATIONED AT CAMP TARA DID NOT VIOLATE INTERNATIONAL LAW, AND THAT, IN ANY EVENT, RAVISIA BEARS No LIABILITY FOR ANY WRONGDOING THAT MAY HAVE BEEN COMMITTED IN THE SERVICE OF THE UNITED NATIONS, AND THAT No ALLEGED INJURY To ALICANTO OR ITS CITIZENS WARRANTS REPARATIONS ........................................ 379 A. Ravisia is not responsiblefor the sexual exploitation............. 379 1. Ravisia is a third party to the SOFA and is not bound by it ..................................................................................379 2. Resolution 5440 does not extend the SOFA to Ravisia ............................................................................. 380 ILSA Journalof Int'l & ComparativeLaw [Vol. 16:1 3. Since troops were acting in their private capacity, their conduct is not attributable to Ravisia ...................... 380 4. Alternatively, even if the exploitation was within the troops' official capacity, attribution flows to the UN, not Ravisia ....................................................................... 380 B. The broadcastingdoes not entail Ravisian responsibility ...... 381 1. Ravisia is not obliged to obey the broadcasting ordinance ......................................................................... 38 1 2. Alternatively, Resolution 5440 authorised the broadcasting .................................................................... 381 3. In the further alternative, even if Ravisia is bound to obey Alicantan law, it is not bound by the broadcasting ordinance because it breaches the right to receive inform ation ..................................................... 382 a. The restrictionon the right is not 'providedby law'. .......................... ...... 382 b. The restrictionis not necessaryfor any article 19(3) p urp ose............................................................ 382 4. In the further alternative, the broadcasting is not attributable to Ravisia because the UN authorised it ....... 383 5. In addition, the broadcasting by OPS does not breach international law .............................................................. 383 C. Ravisia did not owe extraterritorialhuman rights obligationswith regardto sexual exploitation........................ 383 D. Further,no allegedinjury to Alicanto or its citizens warrantsreparations ............................................................... 384 1. Local remedies have not been exhausted ........................ 384 2. The broadcasting has caused no injury ...................385 3. Alternatively, reparations must be reduced or withheld because of contributory negligence .................. 385 4. In the further alternative, reparation should be limited to curial declaration ......................................................... 386 IV. THE ALICANTAN CITIZEN PICCARDO DONATI NEED NOT BE HANDED OVER To ALICANTO, WHERE HE WILL BE SUBJECTED To JUDICIAL EXECUTION IN VIOLATION OF INTERNATIONAL LAW ..................................................................... 386 A. Donati's execution and trialare contrary to international law. ........................................................................................ 3 8 6 1. Alicanto's retroactive imposition of the death penalty violates article 6 of the ICCPR ........................................ 386 2. Alicanto's retroactive imposition of the death penalty is also in violation of article 15 ....................................... 387 2009] DistinguishedBrief 3. Alicanto's reintroduction of capital punishment violates article 6(2) of the ICCPR ................................... 387 4. Donati's trial in absentiawas unlawful under article 14 of the ICCPR .............................................................. 388 5. The prohibition on trial in absentia is non-derogable as it was a death penalty case .......................................... 389 6. Further and in the alternative, if derogation was possible it was not permissible in these circumstances... 389 a. There was no official proclamationof a public em ergency................................................................. 389 b. The derogation was not to the extent strictly required...................................................................
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