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INTERNATIONAL LAW MOOT COURT COMPETITION

ASIA CUP 2013

ASTRAL v.RESMIN

A CASE CONCERNING THE DEATH OF BEN OSTONOV

Country ASTRAL and RESMIN are neighboring States sharing common borders.

In RESMIN, General KUROL, the powerful leader of RESMINs army, seized power in a coup

detatin 1990 and then assumed the presidency in RESMIN. By shutting down the parliament,

he wielded dictatorial power and oppressed his political oppositions. However, in consequence

of the movement for democratization in RESMIN in December 2012, called the RESMIN

Spring, President KUROL was displaced from power in the overthrow of his regime. He died

as a result of an airplane accident when he tried to escape to another country by military

aircraft.

In March 2009, apresidential election and aparliamentary election were carried out in

RESMIN. In conducting these elections, election monitors set up by the resolution of United

Nations Security Council were dispatched to RESMIN, and they confirmed that the elections

were peacefully conducted under democratic procedures. As a result of the elections, RESMIN

Peoples Party(RPP) won the presidential election as well as the parliamentary election. The

manifest of the RPP was realizing national reconciliation, which aimed to lead to the end of

severe political conflict between the former administration and rebel group. Started in April

2009, the RPP government proposed enactment of National Reconciliation Act (NRA). NRA

was aimed to implement the RPPs manifest of realizing national reconciliationand provided

that the conducts enumerated in the Act during KUROL administration (1990-2008) did not

lead to responsibility under criminal law nor civil law, as long as they were conducted under

political intentions. These conducts are: repression and torture by then governmental officials

against rebel groups and attacks bythese rebel groups to the government. The bill of NRA was

adapted at the parliament of RESMIN in August 2009 and came into force at the same time.

Under the KUROL regime during 1990-2008, governmental officials (mainly military and

police) oppressed rebel groups in organized manner, like extrajudicial detention, torture and

killing. On the other hand, rebel groups also committed indiscriminate attacks against

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governmental officials and civilians on many occasions, which resulted in considerable amount

of loss of life in RESMIN including government officials, rebel groups and ordinary citizens.

Mr. BEN OSTONOV, a national of ASTRAL and a freelance journalist based in ASTRAL, had

engaged in reporting the situation of human rights oppression under the KUROL regime. In

September 2005, He was abducted by unidentified men immediately after his arrival to an

airport in RESMIN where he would try to gather information and was found dead near the

airport in October 2005. His body was livid with numerous bruises and had many scars, which

indicated that he had suffered the torture.

Some journalists, who were friends of Mr. OSTONOV and based in ASTRAL, made it clear

that in August 2005, just before Mr. OSTONOVs departure from ASTRAL for RESMIN, he

received a letter from the RESMIN embassy in ASTRAL. According to them, the letter

advisedhim to cancel the travel to RESMIN and the news gathering activities in RESMIN

because the activities of terrorist groups increased in the territory of RESMIN and the

Government of RESMIN could not guarantee the security of Mr. OSTONOV in case of his

entry into RESMIN.

SABENA OSTONOV, wife of Mr. OSTONOV, insisted that the Government of RESMIN was

responsible for the death of Mr. OSTONOV. In November 2005, the Ministry of Foreign Affairs

of ASTRAL also asked the Government of RESMIN to explain and provide with information

on the death of Mr. OSTONOV. Though the Government of RESMIN promised that it would

try to make investigation into the incident, neither detailed information nor official explanation

was given to ASTRAL.

In January 2010, GLOBAL RESMIN, a prestige newspaper in RESMIN, published an article,

which stated that the death of Mr. OSTONOV was of abduction, torture and killing by the

secret police of RESMIN under the instruction of then top senior official of the KUROL regime.

According to GLOBAL RESMIN, this article was based on verbal evidence obtained from

some former members of the secret police during the KUROL regime and proved enough.

However, the sources of information were not released by GLOBAL RESMIN.

In February 2010, in reaction to the above article of GLOBAL RESMIN, the Ministry of

Foreign Affairs of ASTRAL once again requested the Government of RESMIN to provide with

information on the death of Mr. OSTONOV and investigate into it. The Government of

RESMIN replied that it had no specific information on this matter.

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SABENA OSTONOV, Mr. OSTONOVs widow, brought a civil charge against the

Government of RESMIN before a local Court in ASTRAL (Court of first instance) in May 2010.In the course of the litigation she argued as follows: (i) her husband, Mr. OSTONOV was killed

by governmental officials of RESMIN as a result of torture conducted by them and the

Government of RESMIN is responsible for it; (ii) pursuant to Article 14 of the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the

government of RESMIN is under obligation to pay compensation to the plaintiff. The

government of RESMIN contended that as a sovereign State, RESMIN enjoys immunity from

any domestic Courts in ASTRAL and the case should be dismissed. However, a local Court in

ASTRAL (Court of first instance), in its judgment in November 2011, ruled in favor of

SABENA, accepting all her arguments.

Attorney of the RESMIN appealed to a Higher Court in ASTRAL (the Court of second

instance) afterward, but by judgment in August 2012, the court dismissed the appeal. The

attorney lodged final appeal to the Supreme Court of ASTRAL. In a judgment of December

2012, the Court dismissed the appeal and ordered the Government of RESMIN to pay

compensation which amounts to $10,000,000 to SABENA OSTONOV. The Government of

RESMIN argued that the judgment of the supreme court of ASTRAL violates the rules of

international law governing state immunity and that RESMIN is not under an obligation to

respect the judgment, and at the same time, demanded the Government of ASTRAL to disaffirm

the judgment which infringed international law.

The government of ASTRAL, for its part, requested the government of RESMIN as

follows: (i) to admit that the present Government of the RESMIN is responsible for killing of

Mr. BEN OSTONOV under international law and to offer its apologies both for the

Government of ASTRAL and for SABEBA OSTONOV; (ii) In addition, the Government of

RESMIN shall pay appropriate compensation to SABENA OSTONOV.

In April 2013, the Government of ASTRAL and the Government of RESMIN agreed to

refer the legal dispute regarding the death of Mr. BEN OSTONOV to the International Court of

Justice (ICJ) in accordance with article 36(1) of the Statute of the International Court of Justice.

Both ASTRAL and RESMIN are founding members of the United Nations and the parties

to the Statute of the international Court of Justice, Vienna Convention on Diplomatic Relations,

and Vienna Convention on Consular Relations, and the Vienna Convention on Law of Treaties,

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and International Covenant on Economic, Social and Cultural Rights (ICESCR), and the

International Covenant on Civil and Political Rights (ICCPR). Neither of them joins any

Optional Protocols to the ICESCR and ICCPR. ASTRAL became a party to Convention againstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1990 and

RESMIN did so in 2009, but they are does not join the Optional Protocol to the Convention.

ASTRAL is a party to the International Convention for the Protection of All Persons from

Enforced Disappearances, but RESMIN is not. RESMIN ratified United Nations Convention on

Jurisdictional Immunities of States and Their Property, but ASTRAL does not.

*This case is not intended to be a description of an actual situation. The copyright belongs

to the organizer of the International Law Moot Court Competition, Asia Cup 2013.