Republic of Marsala's Memorial (CASE 2 MARSALA v VARESE)

8/13/2019 Republic of Marsala's Memorial (CASE 2 MARSALA v VARESE)

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TEAM NO. 2

THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

THE 2013 BENILDE MOOT COURT CHALLENGE

CASE CONCERNING THE DIFFERENCES OF MARSALA AND VARESE ON CERTAIN

CRIMINAL PROCEEDINGS

REPUBLIC OF MARSALA

(APPLICANT)

V.

THE STATE OF VARESE

(RESPONDENT)

MEMORIAL FOR THE APPLICANT


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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. ii

INDEX OF AUTHORITIES ....................................................................................................... vi

STATEMENT OF JURISDICTION ......................................................................................... xii

QUESTIONS PRESENTED ..................................................................................................... xiii

STATEMENT OF FACTS ........................................................................................................ xiv

SUMMARY OF PLEADINGS ............................................................................................... xviii

PLEADINGS ................................................................................................................................. 1

I. THE ARREST OF JERICA TENG AND OTHER MARSALAN CITIZENSWAS AN INFRINGEMENT OF MARSALAS SOVEREIGNTY AND IS IN

BREACH OF INTERNATIONAL LAW.1

A. Varese had violated its treaty obligation before the United Nations Charterto refrain from using threat or force upon illegally entering the Marsalan

territory ...1

B. Varese does not possess any type of universal jurisdiction to arrest JericaTeng and other Marsalan citizens within the Marsala territory...2

1. Varese contravened certain provisions laid down under the GenevaConvention IV of 1949..3

2. Varese violated Jerica Teng and other Marsalan citizensright to a fair tri alupon il legally arresting them without any previous court hearing.4

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II. THE SUBSEQUENT DETENTION AND TREATMENT OF JERICA TENGAND OTHER MARSALAN CITIZENS VIOLATED

INTERNATIONAL LAW4

A. Acts of torture committed by Varesen authorities against Jerica Teng, Kibo, andother Marsalan citizens as well as other nationalities held as detainees within Camp

Archer are in violation of international law4

1. Varese violated its treaty obligations under the Geneva Convention Relative to theTreatment of Pri soners of War .5

2.The acts of torture committed by Varese against Jerica Teng, Kibo, and other

Marsalan citi zens as well as other nationals violated its treaty obli gation under

Protocol I to the Geneva Conventi ons of 19777

3. Violation of Varese in relation to i ts treaty obli gations under the InternationalCovenant on Civil and Poli tical Rights, wherein itself is a state party.10

B. Vareses imposition of its legal jurisdiction over Jerica Teng and other Marsalancitizens as manifested through the latter individuals detention, is illegal as

established in international law..11

III. VARESES PROSECUTION OF THE DETAINED MARSALAN CITIZENSBEFORE THE VARESE MILITARY COMMISSION, INCLUDING JERICA

TENGS PROSECUTION FOR CONSPIRACY, ARSON, AND MURDER,

VIOLATES INTERNATIONAL LAW.13

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A. Vareses Military Commission will not provide a fair and impartial tribunalto try and hear the cases accused to Jerica Teng and the other LAPS

members 14

B. The Leccens Advancement and Protection Society (LAPS) is not a terroristorganization but rather, is a national liberation movement that aims to

promote the rights of the Leccen minority in Varese and that the State of

Varese had violated certain provisions covered by the International

Convention on the Elimination of All Forms of Racial

Discrimination 15

1. The Leccens Advancement and Protection Society (LAPS) is not a terr ori storgani zation, but r ather, i s a national l iberation movement that aims to

protect and promote the rights of the Leccen minority in

Varese 15

a. LAPS and its members are entitled to resort to armed force to realize theirright to Self-Determination.15

C. Jerica Tengs prosecution of murder is invalid and legally unfair for it isprovided under international humanitarian law that civilians may be killed

lawfully provided that it is only incidental...............18

IV. FORMER VARESEN PRESIDENT PIDO AND GENERAL JERON TSHOULD BE PROSECUTED BEFORE A MARSALAN LOCAL COURT FOR

CRIMES COMMITTED AGAINST JERICA TENG AND OTHER

MARSALAN CITIZENS ..23

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A. Rules of Marsalan law which are relevant to the present case231. Rules appli cable in regard to the jur isdiction of Marsalan Cr iminal

Courts ..23

a. Retired General Jeron T and Former Varesen President Pido are bothliable for their criminal acts committed on Marsalan soil and against

Marsalan Citizens with regards to the violation of the following articles in

the Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment...25

b.Retired General Jeron T should be detained, tried and prosecuted in

Marsalan soil as well as Former Varesen President Pido should be given

an international warrant from the INTERPOL due to their violations

regarding on the following Articles of the Protocol additional to the

Geneva Conventions of 12 August 1949, and Relating to the Protection of

Victims of International Armed Conflicts more commonly known as

Protocol I of the Geneva Conventions..28

PRAYER FOR RELIEF............................................................................................................. 31

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INDEX OF AUTHORITIES

Treaties and Conventions

Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment ......................................................................................25, 28

Geneva Convention Relative to the Protection of Civilian Persons in Time of War .................5, 6

Geneva Convention Relative to the Treatment of Prisoners of War ......................................5, 6, 7

International Convention on the Elimination of All Forms of Racial Discrimination............16, 17

International Covenant on Civil and Political Rights..................................................................5, 6

Protocol I to the Geneva Conventions 1977............................................................................7, 8, 9

Protocol II to the Geneva Conventions 1977................................................................................10

Statute of the International Court of Justice....................................................................................1

Vienna Convention on the Law of Treaties...................................................................................25

European Convention on Human Rights...........................................................................16, 17, 18

Hague Convention 1970................................................................................................................20

Montreal Convention 1971............................................................................................................23

Rome Convention 1988.................................................................................................................29

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International Convention for the Suppression of the Financing of Terrorism...............................25

The Geneva Conventions of 1949...28, 29

United Nations Resolutions and other Documents

Charter of the United Nations..1

U.N. General Assembly Resolution 49/60 (1994)...3

U.N. General Assembly Resolution 59/191 (2004).....3

U.N. General Assembly Resolution 3074 (1973)4

U.N. Security Council Resolution 1368 (2001).17

Meeting Record Associated with S.C. Resolution 1368 (2001)....17


Meeting Record Associated with S.C. Resolution 1373 (2001)17


Meeting Record Associated with S.C. Resolution 1526 (2004)....17

U.N. Security Council Resolution 1566 (2004) .....18


U.N. Security Council Resolution 1617 (2005).....................17

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Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, U.N. Doc.

A/8052 (1970)23

Working Group on the International Law Commission, Draft Code of Crimes against the Peace

and Security of Mankind (1996)..23

U.N. General Assembly Resolution 2383 (1968)..16








U.N. General Assembly Resolution 2796 (1971)......11


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International Cases and Arbitral Decisions

Case Concerning Certain Criminal Proceedings in France (France v Congo), (Judgment) [2003]

ICJ .........30

Case Concerning the Armed Activities on the Territory of the Congo (Congo v Rwanda),

(Judgment) [2006] ICJ...24

Case Concerning Border and Transborder Armed Actions (Nicaragua v Honduras), (Judgment)

[1988] ICJ16

Case of Findlay v United Kingdom, (Judgment) [1997] European Court of Human Rights, ECHR

Case Concerning the Application of the International Convention on the Elimination of All

Forms of Racial Discrimination (Georgia v Russian Federation), (Preliminary Objections,

Judgment) [2011] ICJ...17

Case Concerning the Questions Relating to the Obligation to Prosecute or Extradite (Belgium v

Senegal), (Judgment) [2009] ICJ..22

Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (2 October 1995)23

Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (31 January 2000)...23

Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (26 January 2000)...23

Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (15 July 1999).23

Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (11 November 1999)...23

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Prosecutor v Tadic (Judgment) ICTY Series C No IT-94-1 (7 May 1997)..23

Cyprus v Turkey (Preliminary Objections, Judgment) European Court of Human Rights 35

E.H.R.R. 30 (10 May 2001)..24

Incal v Turkey (Judgment) European Court of Human Rights Series C No 41/1997/825/1031 (9

June 1998)..17

Municipal Cases and Statutes

European Court of Human Rights, Human Rights Act 1998 (adopted 9 November 1998)..16

Treatises and Other Books

Lang, Jr. A, Beattie A.R. (eds), War, Torture and Terrorism: Rethinking the Rules of

International Security (Routledge 2009)...14

Drumbl M,Atrocity, Punishment, and International Law (Cambridge University Press 2007)...13

Burchill R, White N, Morris J (eds),International Conflict and Security Law: Essays in Memory

of Hilaire McCoubrey (Cambridge University Press 2005)..27

Provost R,International Human Rights and Humanitarian Law(Cambridge University Press

2002)..17

Henckaerts J, Beck L. D., Customary International Humanitarian Law (vol. 1, International

Committee of the Red Cross 2005)....18

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Articles and Essays

Harries J, Contextualizing Torture: Rules and Conventions in the Roman Digest in Anthony F.

Lang, Jr. and Amanda Russell Beattie (eds), War, Torture and Terrorism: Rethinking the Rules

of International Security (Routledge 2009). 41...6

May L, International Rules, Custom, and the Crime of Aggression in Anthony F. Lang, Jr. and

Amanda Russell Beattie (eds), War, Torture and Terrorism: Rethinking the Rules of

International Security (Routledge 2009). 155, 157.6

Barnes R, Of Vanishing Points and Paradoxes: Terrorism and International Humanitarian Law

in Richard Burchill, Nigel D. White, and Justin Morris (eds),International Conflict and Security

Law: Essays in Memory of Hilaire McCoubrey (Cambridge University Press 2005). 132, 1405

Rowe P, The Application of the European Convention on Human Rights during an International

Armed Conflict in Richard Burchill, Nigel D. White, and Justin Morris (eds),International

Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge University

Press 2005). 190.16

Bentz N, The Fundamental Principles Governing International Relations (2009). 2-6,7,8...15

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STATEMENT OF JURISDICTION

The Republic of Marsala (Marsala) and the State of Varese (Varese) hereby agreed to

submit the present dispute to the International Court of Justice (ICJ) in accordance with

Articles 36 (1) and 40 (1) of the Statute of the Court. As per Article 36, the jurisdiction of the

Court comprises all cases that the Parties refer to it. Applicant submits to the jurisdiction of the

Court.

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QUESTIONS PRESENTED

I. Whether the apprehension and rendition of Jerica Teng and other Marsalan citizens was aviolation of Marsalas sovereignty and in contravention of international law.

II. Whether the subsequent detention and treatment of Jerica Teng and other Marsalancitizens violated international law.

III. Whether Vareses prosecution of the detained Marsalan citizens before the VareseMilitary Commission, including Jerica Tengs prosecution for conspiracy, arson, and

murder, violates international law.

IV. Whether Marsalas exercise of jurisdiction over former President Pido and General JeronT to prosecute them in Marsala for crimes committed against Jerica Teng and other

Marsala citizens is consistent with international law.

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STATEMENT OF FACTS

The Creation of Marsala and Varese

After the dissolution of the Kingdom of Lucca in 1970, two independent states were formed,

namely Marsala and Varese. These two states are populated by two undistinguishable ethnic

groups: Brendese and Lecce. Marsala has Leccen majority and Brendesen minority while Varese

has Leccen minority and Brendesen majority.

The Leccen population in Varese has lived in the Upland Plateau which is a self-contained land

and makes up to 20% of Varese with a total population of 25,000; it rely mostly to the minerals

present in the area since it is not agricultural-friendly.

For many years, the Leccens have expressed their concerns regarding their exclusion in

economic and cultural advancement of the Brendesen population in Varese. The differences

between the two ethnic groups collected in a 2000 census data include the disparities in the well-

being of Leccens and Brendesens. However, these pleas were denied by the changing Varesen

government.

Leccens Advancement and Protection Society (LAPS)

A social and civic organization emerged in the Upland Plateau consisting of the Leccen

population known as the Leccens Advancement and Protection Society (LAPS). By 2005, LAPS

has three political factions and two of them are (1) the most conservative faction, which tries to

participate into the Varesen political system, and; (2) the most radical wing known as the

Independent Leccens Solidarity Association (ILSA). It is reported that LAPS receives financial

assistance from the Government of Marsala which is used for charitable and educational projects.

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Jerica Teng a Marsalan national governed LAPS since 1985. Teng was born in 1962 and while

growing up spent summers in the Upland Plateau. She graduated from Varese National

University School of Law and has been awarded with various prizes for her advocacy.

The Pursuit of Self-Determination

By 2006, ILSA was reported to have little progress on achieving their goal; these include

disobedience of the government, strikes and protests in the coal mines of the Upland Plateau

which affects the national economy. Military units were deployed throughout the country for

safety reasons; the 373rd

Infantry Battalion or the Enforcers were stationed in the Upland Plateau

commanded by Colonel Jeron T., an ethnic Brendesen.

From February 2006, commotions were reported to be rising in the Upland Plateau between the

Leccens and the Enforcers and peace was never achieved. By January 2007, Jerica issued a

statement focusing on self-determination that was disseminated throughout the Varesen

newspaper.

On the same month, the Brendesen Church situated in the Upland Plateau was set ablaze which

is the first operation made by the ILSA. The 1stoperation was followed by the same burning of

cultural and religious sites in the Upland Plateau. Jerica remained silent for the said violent acts.

The most drastic attack of ILSA was in the Shrine of the Nine Temples which is located in the

village of Pisa. The shrine is supervised by the Committee of Five Genius. Since January 2007,

the Enforcers are also stationed nearby to keep it secure. On February 2007, ILSA sent a

message to the Chairman of the Committee of Five Genius warning them of the ILSAs

demonstration starting at 2100. Unfortunately, the message was written in Leccen language and

was not understood until 8:00pm. The Shrine was burned and all the five Geniuses died

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including 15 security staffs.

The Varesen President declared seven days of mourning. Jerica also issued a statement regarding

the incident. Varese considered the actions of ILSA as terrorist attacks, thus reprimanding

Marsalan Government to surrender Jerica to Varese. On March 2007, Varesen President

announced the total commitment of his government to bring Teng and LAPS to justice, the

implementation of Protection of the State Act 1980, the establishment of a Military Commission

and empowerment of the 373rd

Battalion under Colonel Jeron T. A Military Commission has

features that do not meet the international standards of due process of law.

The Capture of Jerica Teng and Other LAPS Members

By April 2007, Colonel Jeron announced that Jerica was being held in custody at a secret

location and confessed her involvement in the terrorist attacks. She and the other members of

LAPS were detained in Camp Archers, a military and police training facility of Varese located in

Forli. On the same month, the Marsalan Prime Minister expressed outrage over Vereses actions

including the illegal abduction of civilians in the Marsalan territory.

One detainee escaped from Camp Archer named Kibo, claiming to be a Marsalan citizen

reported to the Forli police about the conditions inside Camp Archer which he described as

several levels beyond hell. He also stated that Teng and other Marsalan citizens were being

detained inside experiencing the same situation. Forli policemen inspected Camp Archer that

same month and found 20 individuals locked in a storehouse. The next day, Forli demanded the

immediate closure of Camp Archer, in which Varese did not protest.

Meanwhile, the story of Kibo went throughout the press reports. Marsalan Government protested

to Varese on the violation of its territory and kidnapping of its citizens. Varese made no

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response.

On April 26 2007, Teng and 14 other detainees were transferred to the custody of the Varese

Military Commission in which Jerica was charged with various crimes. Her trial was scheduled

to begin in May 2008. Varesen President promoted Colonel Jeron T to the rank of General for his

accomplishments but he retired from the military a week after. Varesen President Pido on the

other hand resigned from his office due to health problems therefore, making the Vice President

Jarelan Tampo the new President of Varese.

The Arrest of General Jeron T and Former President Pido

On July 2007, the Marsalan national police raided a Brendesen restaurant located in Metropolis.

Jeron T was in the restaurant and he was taken into custody. According to the Marsalan

Attorney, General Jeron has been charged with offenses under the Torture Convention which is

implemented in the Marsalan Statutes. Furthermore, former President Pido had been issued a

warrant of arrest as a co-conspirator and that a request was sent to the INTERPOL for an

international warrant.

Knowing this, the government of Varese instantly protested against Marsala, demanding the

immediate release of Jeron and the cancellation of the arrest warrant for the former President

adding that it violates the doctrine of head of state immunity.

Marsalan Foreign Minister responded to the protest stating that the nature of their crimes were

serious and demanded for the repatriation of Jerica and the other members of LAPS.

With the increasing tension between the two countries, they have agreed to resolve their dispute

peacefully to the International Court of Justice for adjudication.

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SUMMARY OF PLEADINGS

I. The apprehension and rendition of Jerica Teng and other Marsalan citizens was aviolation of Marsalas sovereignty and in contravention of international law.

Varese had clearly violated its treaty obligation before the United Nations Charter to

refrain from using threat or force upon illegally entering the Marsalan territory. The principle of

sovereign equality and respect to all independent states had long been established in international

law provided under several treaties especially in the United Nations Charter. At all relevant

times, Marsala and Varese have been member states of the United Nations.

II. The subsequent detention and treatment of Jerica Teng and other Marsalan citizensviolated international law.

Acts of torture committed by Varesen authorities against Jerica Teng, Kibo and other

Marsalan citizens as well as other nationalities detained in Camp Archer, a detention facility

operated by Varese, violated specific provisions laid down in Protocol I to the Geneva

Conventions of 1977, Geneva Convention Relative to the Treatment of Prisoners of War, and the

International Covenant on Civil and Political Rights. Torturous acts committed by the Varesen

government against Jerica Teng and other Marsalan citizens upon the latter individuals illegal

capture within the Marsalan territory, had violated specific provisions stipulated under Geneva

Convention Relative to the Treatment of Prisoners of War, Protocol I to the Geneva Conventions

of 1977, and the International Covenant on Civil and Political Rights, which itself is a party to

the aforementioned conventions.

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III. Vareses prosecution of the detained Marsalan citizens before the Varese MilitaryCommission, including Jerica Tengs prosecution for conspiracy, arson, and murder,

violates international law.

On the matters concerning the internationally settled standards of detention, Article 10 of

the 1966 International Convention on Civil and Political Rights provides principles applicable to

the latter criterion of keeping an individual under certain custody. The article specifically

provides obligations for States to take measures that will ensure the humane conditions of the

detainees. This obligation also covers the exclusion of cruel, inhuman and degrading treatment of

the detainees. This is also supported by Article 7 of the International Covenant on Civil and

Political Rights which aims on protecting the dignity and physical integrity of the people.

IV. Marsalas exercise of jurisdiction over former President Pido and General Jeron T toprosecute them in Marsala for crimes committed against Jerica Teng and other Marsala

citizens is consistent with international law.

Marsalan Courts have jurisdiction to prosecute offences punishable under Marsalan

criminal law where those offences have been committed within the Marsalan territory. Marsalan

criminal law is dominated by the principle of territoriality, since its primary purpose is to provide

punishments for offences committed on Marsalan territory, the situation whereas it could be

classified as an offence committed within the territory is if one of the elements constituting the

offence took place there. In this case, it is the illegal entry of Varesen authorities within the

Marsalan territory without having the permission of the latter as well as the illegal capture of

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Jerica Teng and other Marsalan citizens. Comparing the present case with France v Congo,

Marsalan courts same with French courts as provided by case law, may have jurisdiction because

of the Marsalan nationality of one or more of the victims which are Jerica Teng and other LAPS

members which is known as passive personal jurisdiction.

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PLEADINGS

______________________________________________________________________________

I. THE ARREST OF JERICA TENG AND OTHER MARSALAN CITIZENSWAS AN INFRINGEMENT OF MARSALAS SOVEREIGNTY AND IS IN

BREACH OF INTERNATIONAL LAW

It has been an established ruling within the United Nations, wherein Marsala and Varese are

both member states to act in accordance with the basic principle of sovereign equality among all

its Members and to renounce the threat or use of force against the territorial integrity of any

state.1 Varese had clearly violated its treaty obligation before the United Nations Charter to

refrain from using threat or force upon illegally entering the Marsalan territory [A]. Moreover,

Varese does not possess any type of universal jurisdiction to arrest Jerica Teng and other

Marsalan citizens within the Marsalan territory [B].

A. Varese had violated its treaty obligation before the United Nations Charter torefrain from using threat or force upon illegally entering the Marsalan territory

The principle of sovereign equality and respect to all independent states had long been

established in international law provided under several treaties especially in the United Nations

Charter. At all relevant times, Marsala and Varese have been member states of the United

Nations.

On April 3, 2007, Vareses Colonel Jeron T announced at a press conference that his men

had successfully captured Jerica Teng and other Marsalan citizens after being discovered in a

village 25 kilometers from the frontier, inside Marsala. Clearly, Varese had violated Marsalas

sovereignty and territorial integrity by unlawfully crossing the Marsalan borders.

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Therefore, Varese had breached important international principles covered under Article 2

paragraphs 1 and 4 stipulated under the United Nations Charter, which itself is a party. The

article states that the Organization and its Members, in pursuit of the purposes laid down in

Article 1, shall act in accordance with the following Principles: 1. The Organization is based on

the principle of sovereign equality of all its Members.; 4. All members shall refrain in their

international relations from the threat or use of force against territorial integrity or political

independence of any state, or in any other manner inconsistent with the Purposes of the United

Nations.

Furthermore, the present case was well represented in the case law, perhaps most notably

in the expression of the equality of States by the Republic of the Congo in France v Congo.2In

France, the Republic of the Congo upheld that the exercise of authority by a State into another

Stat breaches Principles laid down under the United Nations Charter.3

B. Varese does not possess any type of universal jurisdiction to arrest JericaTeng and other Marsalan citizens within the Marsalan territory

In terms of the grounds provided by international law for a State to exercise jurisdiction

over an individual from another State, Varese contravened certain provisions laid down under the

Geneva Convention IV of 1949 [1]. Moreover, Varese violated Jerica Teng and the other

Marsalan citizens right to a fair trial, upon illegally arresting them without having any previous

court trial [2].

___________________________1United Nations Charter, (1945) (UN Charter) art 2 (1) (4)

2[2003] 1 ICJ

3Francepar. 2 (ICJ)

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1. Varese contravened certain provisions laid down under the Geneva Convention IVof 1949

Comparing the provisions under the European Convention on Human Rights (ECHR), it is

suggested that the actions of the armed forces of a state will bring persons located in another

state within the jurisdiction when they are in an area under the effective control of that state

(whether through the occupation of territory or otherwise) or where they come under the physical

control of those forces. This stipulation is envisaged in Articles 2 to 11 of

ECHR.4Thisinterpretation is also consistent with Geneva Convention IV 1949, Article 4. The

armed forces of the state must, in other words, have effective control over foreign territory or

effective control over a foreign national before subjecting the latter under its jurisdiction.5

In the event of April 3, 2007 upon the announcement operated by Vareses Colonel Jeron T

of Jerica Teng and other Marsalan citizens capture within the Marsalan territory, it is clear that

Vareses utilization of its jurisdiction over the aforementioned individuals is illegal and had

breached important rulings agreed upon in international law.

___________________________4European Convention on Human Rights, (2010) (ECHR) art 2-11

5Peter Rowe, The Application of the European Convention on Human Rights during an

International Armed Conflict in Richard Burchill, Nigel D. White, and Justin Morris (eds),

International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge

University Press 2005) 190.

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2. Varese violated Jerica Teng and other Marsalan citizens right to a fair trial uponillegally arresting them without any previous court hearing

As ordered under Article 30 of the Hague Regulations annexed to the Hague Convention IV

1907, the armed forces of a country may capture an alleged suspect provided that he or she

already underwent a previous court examination and should not be punished without previous

trial6

II. THE SUBSEQUENT DETENTION AND TREATMENT OF JERICA TENGAND OTHER MARSALAN CITIZENS VIOLATED INTERNATIONAL LAW

Acts of torture committed by Varesen authorities against Jerica Teng, Kibo and other

Marsalan citizens as well as other nationalities detained in Camp Archer, a detention facility

operated by Varese, violated specific provisions laid down in Protocol I to the Geneva

Conventions of 19777, Geneva Convention Relative to the Treatment of Prisoners of War

8, and

the International Covenant on Civil and Political Rights9[A]. In addition, Vareses imposition of

its legal jurisdiction over Jerica Teng and other Marsalan citizens as manifested through the latter

individuals detention is illegal as established in international law [B].

A. Acts of torture committed by Varesen authorities against Jerica Teng, Kibo, andother Marsalan citizens as well as other nationalities held as detainees within Camp

Archer is in violation of international law

Torturous acts committed by the Varesen government against Jerica Teng and other Marsalan

citizens upon the latter individuals illegal capture within the Marsalan territory, had violated

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specific provisions stipulated under Geneva Convention Relative to the Treatment of Prisoners of

War [1], Protocol I to the Geneva Conventions of 1977 [2], and the International Covenant on

Civil and Political Rights [3], which itself is a party to the aforementioned conventions.

1. Varese violated its treaty obligations under the Geneva Convention Relative to theTreatment of Prisoners of War

It has been stated that on April 12, 2007, Kibo, who claimed to be a citizen of Marsala and a

member of LAPS, appeared before the Forli civilian police and reported the treatment of the

Varesen authorities towards their captured group. Kibo reported that those detained people,

including him and their leader Jerica Teng, had been stripped and kept partially clothed, were

provided inadequate food and water, were subject to intermittent hanging by the wrist from

chains, and were exposed to continuous bright light, uncomfortably cold cell temperatures, and

loud discordant music. Also, according to the medical examination performed by the Forli

doctors, Kibo was malnourished and sleep-deprived and had bruises around his wrists, but that

he had incurred no injuries likely to be permanent.

The following day, Forli policemen were allowed access inside the storehouse where the

LAPS members were detained and found 20 individuals in varying states of undress, most of

them appearing to be disoriented and confused.

Given these statements, it is clear that the Varesen authorities have violated international

law, as they had treated said detainees with conditions that are prohibited as stated in the

following conditions under the Geneva Convention Relative to the Treatment of Prisoners of

War.

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The document refers to Prisoners of War as those who are:

1. Members of the armed forces of a Party to the conflict as well as members ofmilitias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including3. those of organized resistance movements, belonging to a Party to the conflict

and operating in or outside their own territory, even if this territory is occupied,

provided that such militias or volunteer corps, including such organized

resistance movements

And therefore shall be treated according to the following provisions:

Article 13: Prisoners of war must at all times be humanely treated. Any unlawful act or

omission by the Detaining Power causing death or seriously endangering the health of a prisoner

of war in its custody is prohibited, and will be regarded as a serious breach of the present

Convention. In particular, no prisoner of war may be subjected to physical mutilation or to

medical or scientific experiments of any kind which are not justified by the medical, dental or

hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or

intimidation and against insults and public curiosity.

Article 17: No physical or mental torture, nor any other form of coercion, may be inflicted on

prisoners of war to secure from them information of any kind whatever. Prisoners of war who

refuse to answer may not be threatened, insulted, or exposed to any unpleasant or

disadvantageous treatment of any kind.

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Article 20:The Detaining Power shall supply prisoners of war who are being evacuated with

sufficient food and potable water, and with the necessary clothing and medical attention. The

Detaining Power shall take all suitable precautions to ensure their safety during evacuation, and

shall establish as soon as possible a list of the prisoners of war who are evacuated.

Article 26: The basic daily food rations shall be sufficient in quantity, quality and variety to

keep prisoners of war in good health and to prevent loss of weight or the development of

nutritional deficiencies. Account shall also be taken of the habitual diet of the prisoners.

Sufficient drinking water shall be supplied to prisoners of war. The use of tobacco shall be

permitted.

Prisoners of war shall, as far as possible, be associated with the preparation of their meals; they

may be employed for that purpose in the kitchens. Furthermore, they shall be given the means of

preparing, themselves, the additional food in their possession.

Article 27: Clothing, underwear and footwear shall be supplied to prisoners of war in sufficient

quantities by the Detaining Power, which shall make allowance for the climate of the region

where the prisoners are detained. Uniforms of enemy armed forces captured by the Detaining

Power should, if suitable for the climate, be made available to clothe prisoners of war.8

2. The acts of torture committed by Varese against Jerica Teng, Kibo, and other Marsalan

citizens as well as other nationals violated its treaty obligation under Protocol I to the

Geneva Conventions of 1977

The State of Varese had violated Article 75 referring to the Fundamental Guarantees of

Protocol I to the Geneva Conventions of 1977, specifically section 2 [a]; section 7 [b]; and

section 5 [c].

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a. Varese had violated Article 75 Section 2 of Protocol I to the Geneva Conventionsprohibiting any acts of torture

As stated under Article 75 pertaining to the Fundamental Guarantees section 2 of the

Protocol, the following acts are and shall remain prohibited at any time and in any place,

whether committed by a civilian or by military agents:

(a)Violence to life, health, or physical or mental well-being of persons in particular:(ii) Torture of all kinds, whether physical or mental.

7

Citing the aforementioned provisions and evaluating the event that happened in April 12 2007,

the experiences narrated by Kibo, a Marsalan citizen who escaped from Camp Archer, claiming

that he and the other detainees including Jerica Teng had been undergoing the following:

1. Had been stripped and kept partially clothed;2. Were provided inadequate food and water;3. Were subject to intermittent hanging by the wrists from chains; and4. Were exposed to continuous bright light, uncomfortably cold cell, and loud discordant

music.

It is clear that Varese had violated the provisions established under article 75 of the Protocol,

which itself is a party. Moreover, this established norm of protecting human rights and

countering any acts of torture or the threat to use it was absolutely contravened by the Varesen

government as was clearly reflected through the manifesto or proclamation of Colonel Jeron T as

Commanding Officer of the 373rd

Infantry Battalion dated 15 March 2007, which is Vareses

public policy as confirmed by the countrys president, President Pido during a press conference.

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a. Violence to the life, health and physical or mental well-being of persons in particular murder

as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

b. Collective punishments;

c. Taking of hostages;

d. Outrage upon personal dignity, in particular humiliating and degrading treatment, rape,

enforced prostitution and any form of indecent assault;

e. Threats to commit any of the foregoing acts.

c. The detainees health and well-being was not secured and was bypassed by the Varesen

authorities violating Article 75 Section 7 of the Protocol

Regarding the matters on the wounded and sick during an armed conflict, the detained

prisoners shall be provided respect and protection. The persons aforementioned shall have, to the

same extent as the local civilian population, be provided with food and drinking water and be

afforded with safeguards as to matters of health and hygiene as well as the protection against the

rigours of the climate and the dangers of the armed conflict.

It was evident that the Varesen authorities was not able to attend to its legal obligations

and was not able to execute the proper legal procedures in upholding the protection of human

rights of all human beings.

3. Violation of Varese in relation to its treaty obligations under the International Covenant

on Civil and Political Rights, wherein itself is a state party

Governments have the responsibility to respect and protect the people under detention

and must protect the human rights of these individuals. Varese violated the rights of its detainees

whom mostly were captured and detained illegally and was denied to be treated with humanity

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and with respect for the inherent dignity of the human person.

On the matters concerning the internationally settled standards of detention, Article 10 of

the 1966 International Convention on Civil and Political Rights provides principles applicable to

the latter criterion of keeping an individual under certain custody. The article specifically

provides obligations for States to take measures that will ensure the humane conditions of the

detainees. This obligation also covers the exclusion of cruel, inhuman and degrading treatment of

the detainees. This is also supported by Article 7 of the International Covenant on Civil and

Political Rights which aims on protecting the dignity and physical integrity of the people.9

Building on the conjectures in progress with the subsequent events recorded concerning

the deplorable conditions of the detainees within the Varesen-operated detention facility, Camp

Archer in Forli, as what was narrated by Kibo, a Marsalan citizen, and even described it as

several levels beyond Hell, Varese had therefore violated not only it treaty obligations but

most importantly is the international communitys commitment to prohibit the use or threat of

torturous acts against individuals for humane treatment is one of the basic rulings in international

relations.

B. Vareses imposition of its legal jurisdiction over Jerica Teng and other Marsalancitizens as manifested through the latter individuals detention, is illegal as

established in international law

As specified and required under Article 75 Section 4 of Protocol I to the Geneva

Conventions, No sentence may be passed and no penalty may be executed on a person found

guilty of a penal offence related to the armed conflict except pursuant to a conviction

pronounced by an impartial and regularly constituted court respecting the generally recognized

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principles of regular judicial procedure, which include the following:

(a)The procedure shall provide for an accused to be informed without delay of theparticulars of the offence alleged against him and shall afford the accused beforehand;

(b)during his trial all necessary rights and means of defense;(c)Anyone charged with an offence is presumed innocent until proven guilty according to

law;

(f) No one shall be compelled to testify against himself or to confess guilt;

(g)Anyone charged with an offence shall have the right to examine, or have examined, the

witnesses against him and to obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him;

(j) A convicted person shall be advised on conviction of his judicial and other remedies and

of the time-limits within which they may be exercised.7

___________________________

6Hague Regulations annexed to the Hague Convention IV, (1907) art 30

7Protocol I to the Geneva Conventions, (1977) art 75 (2) (4) (5) (7)

8Geneva Convention Relative to the Treatment of Prisoners of War, (1950) art 13, 17, 20, 26, 27

9International Covenant on Civil and Political Rights, (1966) art 10

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The aforementioned regulations were not abided upon by the Varesen government after

instituting a Military Commission to hear the case of Jerica Teng and other LAPS Members. The

latter strictly prohibits the freedom of the defendant to use her own lawyer but rather, provide her

with a military lawyer. With regards to clause (f), it was a recorded event throughout this armed

conflict that Jerica Teng after being illegally caught within the Marsalan territory, was

interrogated by the military troops commanded by Colonel Jeron T and publicized that Jerica

Teng had admitted of her direct involvement with the activities of LAPS.

III.

VARESES PROSECUTION OF THE DETAINED MARSALAN CITIZENS

BEFORE THE VARESE MILITARY COMMISSION, INCLUDING JERICA

TENGS PROSECUTION FOR CONSPIRACY, ARSON, AND MURDER,

VIOLATES INTERNATIONAL LAW

It has been established in international law that instituting a military court, in this case, it is

Vareses Military Commission, would not lead to a fair trial for the State concerned will not be

able to provide for an independent and impartial tribunal to try those who have been brought

within its jurisdiction [A]. As dictated by the regulations and guidelines of international law,

Jerica Teng and the other LAPS members could not be accused of conspiracy and arson related

to terrorist activities, and therefore could not be arrested and detained by the Varesen authorities

for LAPS is not a terrorist organization [B]. Moreover, Jerica Tengs prosecution of murder is

invalid and legally unfair for it is provided under international humanitarian law that civilians

may be killed lawfully provided that it is only incidental [C].

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A. Vareses Military Commission will not provide a fair and impartial tribunal to tryand hear the cases accused to Jerica Teng and the other LAPS members

Citing the European Convention on Human Rights (ECHR), it is suggested that the actions of

the armed forces of a state will bring persons located in another state with in the jurisdiction

when they are in an area under the effective control of that state (whether through the

occupation of territory or otherwise) or where they come under the physical control of those

forces. This interpretation is consistent with Geneva Convention IV 1949, Article 4. The armed

forces of the state must, in other words, have effective control over foreign territory or effective

control over a foreign national.10

Geneva Convention III 1949, Article 96, requires that the prisoner of war be told of an

offence of which he is accused, be given an opportunity to explain himself, to call witnesses and

to have the services of a qualified interpreter. Article 75 of Additional Protocol I lays down

substantial fair trial procedures, which are in many ways similar to ECHR, Article 6.11

Under

international humanitarian law, the state will need to ensure that it is able to provide an

independent and impartial tribunal to try those who have been brought within its jurisdiction.

This may prove difficult if the court is, as it is likely to be, a military one. This scenario was

proven inFindlay v United Kingdom, Incal v Turkey and Cyprus v Turkey.12

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B. The Leccens Advancement and Protection Society (LAPS) is not a terroristorganization but rather, is a national liberation movement that aims to promote the

rights of the Leccen minority in Varese and that the State of Varese had violated

certain provisions covered by the International Convention on the Elimination of

All Forms of Racial Discrimination.

The Leccens Advancement and Protection Society (LAPS) is not a terrorist organization but

rather, is a national liberation movement that aims to protect and promote the rights of the

Leccen minority in Varese [1] and that the State of Varese, failing to grant the Leccen minority

within its territory the basic economic, cultural, social, and political rights compared to the

Brendesen majority, had therefore, violated certain provisions covered by the International

Convention on the Elimination of All Forms of Racial Discrimination.

1. The Leccens Advancement and Protection Society (LAPS) is not a terroristorganization, but rather, is a national liberation movement that aims to protect

and promote the rights of the Leccen minority in Varese

Considering the lack of economic, social, and political representation of the Leccen minority

in Varese, LAPS and its members are entitled to resort to armed force to realize their right to

self-determination supported by international law [a].

a. LAPS and its members are entitled to resort to armed force to realize their right toSelf-Determination

Established customary international law allows ethnic and racial groups to resort to the use of

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armed force as stated under the International Convention on the Elimination of All Forms of

Racial Discrimination of 1969 which declares that Racial groups not represented in government

and are forcibly denied the right to self-determination are entitled to resort to armed force to

realize their right to self-determination.13

However, as affirmed in the aforementioned article,

one prerequisite must be fulfilled: the racial groups should have been restricted and forcibly

denied by the involved government of their economic, social, cultural, and political rights.

_________________________

10 Peter Rowe, The Application of the European Convention on Human Rights during an

International Armed Conflict in Richard Burchill, Nigel D. White, and Justin Morris (eds),

International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (Cambridge

University Press 2005)

11Ibid.

12See., e.g.,Findlay v United Kingdom (1997) 24 EHRR 221;Incal v Turkey (2000) 29 EHRR

449; Cyprus v Turkey (2002) 35 EHRR 731 at para. 358.

13International Convention on the Elimination of All Forms of Racial Discrimination (1969)

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Such stipulation has been present in the current circumstance: On at least eight occasions

between 1985 and 2001, the Varesen Parliament espoused resolutions that were against the

demand of the Upland Plateau for political autonomy. In these series of parliamentary events,

LAPS members in the legislature, which are only 12 out of the 200 total seats voted against those

declarations. Moreover, on February and December 2006, there were six events of disruptions in

the Upland Plateau, the historical and traditional dwelling place of the Leccen minority in

Varese, wherein members of the Varesen governments 373rd

Infantry Battalion discharged

weapons. The casualties ranged between 100 and 300 ethnic Leccens killed, and between 750

and 1,200 are injured. The abovementioned prerequisite being fulfilled, consequently grant

LAPS and its members to resort to the use of armed force to attain their right to self-

determination.

LAPS is not a terrorist group, instead, it is a movement that emerged after the dissolution

of the Kingdom of Lucca. LAPS was created as a social and civic organization, in their early

days they sponsored the study of Leccen culture and language, and supported hospitals, schools

and old-age homes to serve the Leccen population of Varese.

In this case, Marsalas financial assistance to LAPS would not be in conflicting to

Paragraph 1.a, and 1.c of S/Resolution 1617 of 2005.

Contents of SC Resolution S/RES/1617 (2005):14

1. Decides that all States shall take the measures as previously imposed by paragraph 4 (b)of resolution 1267 (1999), paragraph 8 (c) of resolution 1333 (2000), and paragraphs 1

and 2 of resolution 1390 (2002) with respect to Al-Qaida, Usama bin Laden, and the

Taliban and other individuals, groups, undertakings and entities associated with them, as

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referred to in the list created pursuant to resolutions 1267 (1999) and 1333 (2000) (the

Consolidated List): (a) Freeze without delay the funds and other financial assets or economi c

resources of these individuals, groups, undertakings and entities, including funds derived from

property owned or controlled, directly or indirectly, by them or by persons acting on their behalf

or at their direction, and ensure that neither these nor any other funds, financial assets or

economic resources are made available, directly or indirectly, for such persons benefit, by their

nationals or by any persons within their territory.

C.

Jerica Tengs prosecution of murder is invalid and legally unfair for it is provided

under international humanitarian law that civilians may be killed lawfully provided

that it is only incidental

International humanitarian law accepts that civilians may be killed lawfully provided that the

attacks on combatants or military objectives are not expected to cause incidental loss of civilian

life which would be excessive in relation to the concrete and direct military advantage

anticipated15

A state is clearly under an obligation to treat protected persons, such as prisoners of

war or civilians, humanely16

_________________________

14S/RES/1617 (2005)

Additional Protocol I 1977, Article 51 (5) (b)

15See Geneva Convention III 1949, Article 13; Geneva Convention IV 1949, Article 27

16Additional Protocol I 1977, Article 51 (5) (b)

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(c) Prevent the direct or indirect supply, sale or transfer, to these individuals, groups,

undertakings and entities from their territories or by their nationals outside their territories, or

using their flag vessels or aircraft, of arms and related materiel of all types including weapons

and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for

the aforementioned and technical advice, assistance, or training related to military activities;

The acts made by the Leccens Advancement and Protection Society (LAPS) cannot be

considered as terrorism because:

(a) The group didnt intend to hurt anyone in any of their attacks. In fact, they sent a message

to the Committee of the Five Geniuses informing them about their planned attack to the

Shrine of the Nine Temples

Security Council Resolution 1566 (2004)17

2. Recalls that criminal acts, including against civilians, committed with the intent tocause death or serious bodily injury, or taking of hostages, with the purpose to

provoke a state of terror in the general public or in a group of persons or particular

persons, intimidate a population or compel a government or an international

organization to do or to abstain from doing any act, which constitute offences within

the scope of and as defined in the international conventions and protocols relating to

terrorism, are under no

_________________________

17Security Council Resolution 1566 (2004)

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circumstances justifiable by considerations of a political, philosophical, ideological, racial,

ethnic, religious or other similar nature, and calls upon all States to prevent such acts and,

if not prevented, to ensure that such acts are punished by penalties consistent with their

grave nature;

(b) There is no universal definition of what terrorism is. The attacks committed by the group

can be called a revolution because what the group is fighting for is liberty and freedom.

Based from Multilateral: Protocol Additional to the Geneva Conventions of 12 August 1949.

1. The Leccens of Varese have expressed concerns that they were being precluded fromeconomic and cultural advancement by the Brendesen majority, which is against the

Civilian Population, Article 13: Protection of the Civilian Population.

Although the Varesen government from different political parties has consistently denied the

allegations made by the Leccens of Varese regarding any legal or institutional discrimination

against them, census data collected in year 2000 proves that significant disparities in the well-

being, may it be regarding in literacy (education), salary (economics), or life expectancy (health),

is more in favour to the Brendesen. The Protection of the Civilian Population of Article 13 was

not observed by the Varese government which is dominantly composed of Brendesen ethnic

group of about 85% and only 10% for Leccen and 5% for mixed. The Leccen in Varese is still

part of the civilian population under the State of Varese. The civilian population and individual

civilians shall enjoy general protection against the danger arising from military operations.

1.1 Violation in accordance to Article 13, rule 2 that civilian population of the Leccens in

Varese, as well as its individual civilians, shall not be the object of any attack or discrimination

The violation of Article 13, rule 2 is shown by the data collected regarding the average

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annual per capita income of Leccens earn 8,000 Euros, 6,000 lower compared to the

Brendesen earning 14, 000 Euros; 66% is the literacy rate of the Leccens (may it be in

Brendesen or the Leccen language), 26 % shorter compared to the 92% of adult Brendesen

who can read and write in Brendesen (the official language of Varese); and the average life

expectancies of female and male of the Leccens in Varese were 52 and 58, 18-20 years

shorter compared to the life expectancy of the Brendesen which were 71 and 76 years.

RIGHT TO SELF-DETERMINATION: FROM THE 1966 INTERNATIONAL COVENANT

ON CIVIL AND POLITICAL RIGHTS

Article 1.1. All peoples have the right of self-determination. By virtue of that right they freely

determine their political status and freely pursue their economic, social and cultural

development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources3. Without prejudice to any obligations arising out of international economic co-operation,

based upon the principle of mutual benefit, and international law. In no case may a

people be deprived of its own means of subsistence.

_________________________

18International Covenant on Civil and Political Rights art 1, 2

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3. The States Parties to the present Covenant, including those having responsibility for the

administration of Non-Self-Governing and Trust Territories, shall promote the realization of the

right of self-determination, and shall respect that right, in conformity with the provisions of the

Charter of the United Nations.

PART II

Article 2. 1. Each State Party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights recognized in the present

Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political

or other opinion, national or social origin, property, birth or other status.

3. Where not already provided for by existing legislative or other measures, each StateParty to the present Covenant undertakes to take the necessary steps, in accordance

with its constitutional processes and with the provisions of the present Covenant, to

adopt such legislative or other measures as may be necessary to give effect to the

rights recognized in the present Covenant.

4. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall

have an effective remedy, notwithstanding that the violation hasbeen committed by persons

acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by

competent judicial, administrative or legislative authorities, or by any other competent authority

provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

To ensure that the competent authorities shall enforce such remedies when granted.

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IV.FORMER VARESEN PRESIDENT PIDO AND GENERAL JERON T SHOULD BE

PROSECUTED BEFORE A MARSALAN LOCAL COURT FOR CRIMES

COMMITTED AGAINST JERICA TENG AND OTHER MARSALAN CITIZENS

A. RULES OF MARSALAN LAW WHICH ARE RELEVANT TO THE PRESENTCASE

1. Rules applicable in regard to the jurisdiction of Marsalan Criminal CourtsMarsalan Courts have jurisdiction to prosecute offences punishable under Marsalan

criminal law where those offences have been committed within the Marsalan territory. Marsalan

criminal law is dominated by the principle of territoriality, since its primary purpose is to provide

punishments for offences committed on Marsalan territory, the situation whereas it could be

classified as an offence committed within the territory is if one of the elements constituting the

offence took place there. In this case, it is the illegal entry of Varesen authorities within the

Marsalan territory without having the permission of the latter as well as the illegal capture of

Jerica Teng and other Marsalan citizens. Comparing the present case with France v Congo,

Marsalan courts same with French courts as provided by case law, may have jurisdiction because

of the Marsalan nationality of one or more of the victims which are Jerica Teng and other LAPS

members which is known as passive personal jurisdiction3.

Having its basis with the case law of France v Congo, it is legally concluded that

Marsalan law also confers jurisdiction on Marsalan courts in certain matters to prosecute and try

principals or accessories in respect of offences committed outside Marsalan territory if the

principals are foreigners. Under international law, this is what is commonly knows as universal

jurisdiction19

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Such jurisdiction is in fact subject to two conditions. First, there must in principle be a

treaty to which Marsala is a party that provides for that universal jurisdiction and even requires it

to be exercised; Second, the person suspected must be on Marsalan territory.

The aforementioned conditions have been complied and fulfilled upon by Marsala. For

the first condition upon exercising universal jurisdiction, one of the treaties or conventions and

without doubt the most important in practice wherein the Republic of Marsala had signed and

ratified since becoming an independent state in 1970, is the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment dated 10 December

1984. In conformity with that Convention, Marsalan criminal law confers universal jurisdiction

on Marsalan courts in regard to torturous acts, but subordinates that jurisdiction to be legally

effective upon the presence of the suspect on national territory the second condition which,

moreover, Marsalan law imposes systematically on the exercise of any universal jurisdiction. It

should be point out here that the latter condition has been fulfilled. In this case, on 20 July 2007,

Marsalan national police raided a Brendesen restaurant in Metropolis, the city with the largest

Brendesen population in Marsala, therefore is within Marsalan national territory and took Retired

General Jeron T into custody charging him with offences under Marsalan statutes implementing

the Torture Convention in connection with the illegal capture and detention of Jerica Teng and

other LAPS members in his capacities both as military commander and as legal adviser to

Varesen President Pido.

___________________

19[2003] ICJ CR 2003/21 4.

20ibid.

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a. Retired General Jeron T and Former Varesen President Pido are both liable fortheir criminal acts committed on Marsalan soil and against Marsalan Citizens with

regards to the violation of the following articles in the Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Retired General Jeron T and Former Varesen President Pido are both liable for their criminal

acts committed on Marsalan soil and against Marsalan Citizens with regards to the violation

of the following articles in the Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment. First, Violation in accordance to Article 1 which

prohibits any acts of torture and other cruel, inhuman, or degrading treatment or punishment

to any person.21

Second, Violation in accordance to Article 2 in which VaresenMilitary

forces which was led by Retired General Jeron T and Former Varesen President Pido as their

Commanderinchief were obliged to take measures in order to prevent any kind of torture

and other cruel, inhuman, or degrading treatment or punishment to any person.

1.1. Violation in accordance to Article 1 in which the Varesen Military Forces ledby Retired General Jeron T and Former Varesen President Pido as their

Commander in Chief, failed to comply with the Article which led to

physical and mental suffering of Ms. Jerica Teng, Kibo, and fourteen (14)

other LAPS members.

The violation against Article 1 was made when a disheveled and disoriented person

___________________

21Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

art 1, 2, 4, 10, 11, 51, 76

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identifying himself as Kibo, and claiming to be a Marsalan citizen and a member of LAPS,

appeared at a Forli civilian police station near Camp Archer and identified that he said that he

had been held for three weeks under conditions that he described as several levels beyond Hell.

And stated that there were at least 20 other prisoners at Camp Archer, of whom twelve were

fellow LAPS members, including Jerica Teng.


Commander in Chief, for failing to take measures to prevent acts of

torture but instead initialized the acts of torture regardless whether

physically or mentally.

The Violation against Article 2 was made when the Varesen Military Forces led by Retired

General Jeron T and Former Varesen President Pido as their Commander inChief kidnapped

Ms. Jerica Teng and other members of LAPS inside the Marsalan soil and brought them to a

place (Camp Archer) and as what Kibo identified as several levels beyond Hell. And as what

Kibo said and described that the detainees had been stripped and kept partially clothed, were

provided inadequate food and water, were subject to intermittent hanging by the wrists from

chains, and were exposed to continuous bright light, uncomfortably cold cell temperatures, and

loud discordant music.

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CommanderinChief, tortured physically and mentally some members of

LAPS who were Marsalan citizens including Ms. Jerica Teng and Kibo even

though their acts were not anymore under its criminal law.

The violation was made when a Kibo who was one of the detainees, explained and described

every detainees three week experience in Camp Archer in which he identified the experience

as several levels beyond Hell.And from his experience, it is clear that the acts done to the

detainees (including some members of LAPS who were Marsalan Citizens, Ms. Jerica Teng, and

Kibo) by the Varesen Military Forces were not anymore under their criminal law but is an

example of torture.22

1.4. Violation in accordance to Article 10 in which the Varesen Military Forcesled by Retired General Jeron T and Former Varesen President Pido as their

CommanderinChief, being understood that Varesen Military Forces are

well educated regarding the prohibition against torture with accordance to

this Article, still continued to torture some members of LAPS who were

Marsalan citizens including Ms. Jerica Teng and Kibo.

Assuming that the Military Forces of Varese are well educated during their training regarding the

prohibition against torture, the violation was made when they already know that torture is

prohibited, but still they continued to torture lots of citizens from Varese and Marsalan and

nationals from other countries including Ms. Jerica Teng.

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b. Retired General Jeron T should be detained, tried and prosecuted in Marsalan soilas well as Former Varesen President Pido should be given an international warrant

from the INTERPOL due to their violations regarding on the following Articles of

the Protocol additional to the Geneva Conventions of 12 August 1949, and Relating

to the Protection of Victims of International Armed Conflicts more commonly

known as Protocol I of the Geneva Conventions.

Retired General Jeron T should be detained, tried and prosecuted in Marsalan soil as well as

Former Varesen President Pido should be given an international warrant from the INTERPOL

due to their violations regarding on the following Articles of the Protocol additional to the

Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of

International Armed Conflicts more commonly known as Protocol I of the Geneva Conventions.

First, Violation of Article 11 which obliges the Varesen Military Forces led by Retired General

Jeron T and Former Varesen President Pido as their Commander in Chief protection of

persons who are in power. Second, Violation of Article 51 which obliges the Varesen Military

Forces led by Retired General Jeron T and Former Varesen President Pido as their Commander

in Chief to protect the civilian population. Third, Violation of Article 76 which obliges the

Varesen Military Forces led by Retired General Jeron T and Former Varesen President Pido as

their CommanderinChief the protection of women.

__________________________

22Ibid.

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a. Violation of Article 11 in which the Varesen Military Forces led by RetiredGeneral Jeron T and Former Varesen President Pido as their Commander

inChief, fall short to protect the physical or mental health and integrity of

person/s who are in power of the adverse party specifically Ms. Jerica Teng

who is a Marsalan National and other Nationals from other countries.

The violations against the Article was made when Kibo said that Ms. Jerica Teng was

also held for three weeks and had been stripped and kept partially clothed, were provided

inadequate food and water, were subject to intermittent hanging by the wrists from chains, and

were exposed to continuous bright light, uncomfortably cold cell temperatures, and loud

discordant music.

b. Violation of Article 51 in which the Varesen Military Forces led by RetiredGeneral Jeron T and Former Varesen President Pido as their Commander

inChief, failed to protect citizens not only from Marsalan who were LAPS

members but as well as Varesen citizens from Upland Plateau.

The violation against the Article was made when Kibo explained that they (including the twelve

LAPS members, and Jerica Teng, some Varesen citizens from the Upland Plateau, and a few

were nationals of other countries) who were considered as civilians were harmed physically

and mentally which made Kibo described the experience as several levels beyond Hell.

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c. Violation of Article 76 in which the Varesen Military Forces led by RetiredGeneral Jeron T and Former Varesen President Pido as their Commander

inChief, came short in taking measures in able to avoid any form of assault

to women specifically Ms. Jerica Teng and other LAPS members who were a

female23

The violation was made when Kibo said that Ms. Jerica Teng was was also held for three weeks

and had been stripped and kept partially clothed, were provided inadequate food and water, were

subject to intermittent hanging by the wrists from chains, and were exposed to continuous bright

light, uncomfortably cold cell temperatures, and loud discordant music with other detainees.

However, it is not yet confirmed until now how many females were detainees but it is not also

clear that all detainees were men.

Rules governing the conduct of proceedings

As compared with the case law France v Congo, the rules governing the jurisdiction of the

Marsalan criminal courts in regard to the procedural matters involved in the preparation and

conduct of criminal proceedings against Retired General Jeron T and former President Pido can

be distinguished in three stages: the first stage which is the preliminary investigation; the second

stage which pertains to the judicial investigation, and; the third stage which is formal

investigation also known as indictment or inculpation24

___________________________

23Ibid.

24France v Congo (2003)

30


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PRAYER FOR RELIEF

Marsala respectfully requests the Court to adjudge and declare that:

I. Since the capture and arrest of Jerica Teng and other Marsalan citizens was illegal,Vareses government had therefore violated Marsalas sovereignty, territorial

integrity and is in violation of international law.

II. The subsequent torturous acts committed by Varese against Jerica Teng and otherMarsalan citizens upon their detention violated international law.

III. The prosecution of the detained Marsalan citizens including Jerica Teng for crimes ofconspiracy, arson, and murder before a military court, in this case is Vareses Military

Commission, will not provide an impartial and fair trial and is therefore in violation

of international law.

IV. Former President Pido and Retired General Jeron T can be tried before the courts ofMarsala, therefore, the Republic has universal jurisdiction for crimes committed

against Jerica Teng and other Marsalan citizens and this is consistent with

international law.

Republic of Marsala's Memorial (CASE 2 MARSALA v VARESE)

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Transcript of Republic of Marsala's Memorial (CASE 2 MARSALA v VARESE)