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Transcript of International Moot Court Challenge Memorial
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
(Leader and Speaker: Christelle M. Jovenir)
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 CITIZENS
WAS AN INFRINGEMENT OF MARSALA’S SOVEREIGNTY AND IS IN
BREACH OF INTERNATIONAL LAW………………………………………….1
A. Varese had violated its treaty obligation before the United Nations Charter
to 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 Jerica
Teng and other Marsalan citizens within the Marsala territory……………...2
1. Varese contravened certain provisions laid down under the Geneva
Convention IV of 1949………………………………………………………..3
2. Varese violated Jerica Teng and other Marsalan citizens’ right to a fair trial
upon illegally arresting them without any previous court hearing………….4
ii
II. THE SUBSEQUENT DETENTION AND TREATMENT OF JERICA TENG
AND OTHER MARSALAN CITIZENS VIOLATED
INTERNATIONAL LAW…………………………………………………………4
A. Acts of torture committed by Varesen authorities against Jerica Teng, Kibo, and
other Marsalan citizens as well as other nationalities held as detainees within Camp
Archer are in violation of international law……………………………………………4
1. Varese violated its treaty obligations under the Geneva Convention Relative to the
Treatment of Prisoners of War……………………………………………………….5
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………………………………………7
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…………….10
B. Varese’s 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………………………………………………………..11
III. VARESE’S PROSECUTION OF THE DETAINED MARSALAN CITIZENS
BEFORE THE VARESE MILITARY COMMISSION, INCLUDING JERICA
TENG’S PROSECUTION FOR CONSPIRACY, ARSON, AND MURDER,
VIOLATES INTERNATIONAL LAW………………………………………….13
iii
A. Varese’s Military Commission will not provide a fair and impartial tribunal
to 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 terrorist
organization 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 terrorist
organization, but rather, is a national liberation 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 their
right to Self-Determination…………………………………………………….15
C. Jerica Teng’s 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…………………………...............18
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…………………………………………………………..23
iv
A. Rules of Marsalan law which are relevant to the present case………………23
1. Rules applicable in regard to the jurisdiction of Marsalan Criminal
Courts………………………………………………………………………..23
a. 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……………………………………………………...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
v
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
vi
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
U.N. Security Council Resolution 1373 (2001)………………………………………………….17
Meeting Record Associated with S.C. Resolution 1373 (2001)…………………………………17
U.N. Security Council Resolution 1526 (2004)………………………………………………….17
Meeting Record Associated with S.C. Resolution 1526 (2004)………………………………....17
U.N. Security Council Resolution 1566 (2004)……………………………………………….....18
Meeting Record Associated with S.C. Resolution 1566 (2004)…………………………………18
U.N. Security Council Resolution 1617 (2005)…………………………………….....................17
vii
Meeting Record Associated with S.C. Resolution 1617 (2005)…………………………………17
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 2395 (1968)………………………………………………..16
U.N. General Assembly Resolution 2508 (1969)………………………………………………..15
U.N. General Assembly Resolution 2621 (1970)………………………………………………..14
U.N. General Assembly Resolution 2652 (1970)………………………………………………..13
U.N. General Assembly Resolution 2678 (1970)………………………………………………..12
U.N. General Assembly Resolution 2707 (1970)………………………………………………..12
U.N. General Assembly Resolution 2795 (1971)………………………………………………..12
U.N. General Assembly Resolution 2796 (1971)……………………………………………......11
U.N. General Assembly Resolution 2871 (1971)………………………………………………..12
viii
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] ICJ………………………………………………………………………………………16
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
ix
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
x
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, 140…5
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
xi
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.
xii
QUESTIONS PRESENTED
I. Whether the apprehension and rendition of Jerica Teng and other Marsalan citizens was a
violation of Marsala‟s sovereignty and in contravention of international law.
II. Whether the subsequent detention and treatment of Jerica Teng and other Marsalan
citizens violated international law.
III. Whether Varese‟s prosecution of the detained Marsalan citizens before the Varese
Military Commission, including Jerica Teng‟s prosecution for conspiracy, arson, and
murder, violates international law.
IV. Whether Marsala‟s exercise of jurisdiction over former President Pido and General Jeron
T to prosecute them in Marsala for crimes committed against Jerica Teng and other
Marsala citizens is consistent with international law.
xiii
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.
xiv
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 1st operation 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 ILSA‟s
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
xv
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 Verese‟s 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
xvi
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.
xvii
SUMMARY OF PLEADINGS
I. The apprehension and rendition of Jerica Teng and other Marsalan citizens was a
violation of Marsala‟s 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 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 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.
xviii
III. Varese‟s prosecution of the detained Marsalan citizens before the Varese Military
Commission, including Jerica Teng‟s 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. Marsala‟s exercise of jurisdiction over former President Pido and General Jeron T to
prosecute 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
xix
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.
xx
PLEADINGS
______________________________________________________________________________
I. THE ARREST OF JERICA TENG AND OTHER MARSALAN CITIZENS
WAS AN INFRINGEMENT OF MARSALA’S 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 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.
On April 3, 2007, Varese‟s 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 Marsala‟s
sovereignty and territorial integrity by unlawfully crossing the Marsalan borders.
1
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.2 In
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 Jerica
Teng 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
3France par. 2 (ICJ)
2
1. Varese contravened certain provisions laid down under the Geneva Convention IV
of 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 Varese‟s Colonel Jeron T
of Jerica Teng and other Marsalan citizens‟ capture within the Marsalan territory, it is clear that
Varese‟s utilization of its jurisdiction over the aforementioned individuals is illegal and had
breached important rulings agreed upon in international law.
___________________________ 4 European Convention on Human Rights, (2010) (ECHR) art 2-11
5 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) 190.
3
2. Varese violated Jerica Teng and other Marsalan citizens’ right to a fair trial upon
illegally 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
trial” 6
II. THE SUBSEQUENT DETENTION AND TREATMENT OF JERICA TENG
AND 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, Varese‟s 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, and
other 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
4
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 the
Treatment 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.
5
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 of
militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including
3. 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.”
6
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].
7
a. Varese had violated Article 75 Section 2 of Protocol I to the Geneva Conventions
prohibiting 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; and
4. 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 Varese‟s
public policy as confirmed by the country‟s president, President Pido during a press conference.
8
Colonel Jeron T stated that: “The Enforcers are prepared and they are hereby authorized to
engage in the following practices with respect to persons on suspicion that they have participated
or intend to participate in terrorist acts: deprivation of sleep, clothing, and food (short of actual
starvation); subject to extreme of heat and cold; forced adoption of stress positions; and
interrogation techniques (including prolonged and intense interrogation) that may involve the
infliction of non-lethal pain. The Colonel even added that aforementioned measures of law
enforcement are not prohibited by Varese law or any international agreement binding in Varese.
Evidently, the government of Varese did not comply with its treaty obligations, for it was
historically stated that upon the independence of Varese and Marsala after the dissolution of
Lucca, the State of Varese had signed and ratified the Geneva Conventions of 1949 and its two
Additional Protocols.
b. Jerica Teng and the other detainees held by Varese in Camp Archer was not treated
humanely, therefore it is in violation of Article 75 Section 4 of the Protocol
Despite the participation of the said insurgents captured by the Varesen Military who do not
take a direct part or who have ceased to take part in the hostilities, whether or not their liberty
has been restricted, are still entitled to have respect for their person as a human being, honour,
convictions and religious practices. They shall in all circumstances be treated humanely, without
any adverse distinction and is prohibited to order that there shall be no survivors.
Upon the illegal capture and detention of Jerica Teng and other individuals by the Varesen
government, specifically Kibo who was able to escape from Camp Archer, it is undeniable that
Varese had violated the following provisions laid under Article 75 Section 4 of the Protocol:
9
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
10
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 community‟s 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. Varese’s 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
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
11
principles of regular judicial procedure, which include the following:
(a) The procedure shall provide for an accused to be informed without delay of the
particulars 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
___________________________
6 Hague Regulations annexed to the Hague Convention IV, (1907) art 30
7 Protocol I to the Geneva Conventions, (1977) art 75 (2) (4) (5) (7)
8 Geneva Convention Relative to the Treatment of Prisoners of War, (1950) art 13, 17, 20, 26, 27
9 International Covenant on Civil and Political Rights, (1966) art 10
12
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. VARESE’S PROSECUTION OF THE DETAINED MARSALAN CITIZENS
BEFORE THE VARESE MILITARY COMMISSION, INCLUDING JERICA
TENG’S 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
Varese‟s 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 Teng‟s 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].
13
A. Varese’s Military Commission will not provide a fair and impartial tribunal to try
and 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 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 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 in Findlay v United Kingdom, Incal v Turkey and Cyprus v Turkey.12
14
B. The Leccens Advancement and Protection Society (LAPS) is not a terrorist
organization 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 terrorist
organization, 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 to
Self-Determination
Established customary international law allows ethnic and racial groups to resort to the use of
15
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)
11 Ibid.
12 See., 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.
13 International Convention on the Elimination of All Forms of Racial Discrimination (1969)
16
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 government‟s 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, Marsala‟s 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
17
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 economic
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 Teng’s 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
_________________________
14 S/RES/1617 (2005)
Additional Protocol I 1977, Article 51 (5) (b)
15 See Geneva Convention III 1949, Article 13; Geneva Convention IV 1949, Article 27
16 Additional Protocol I 1977, Article 51 (5) (b)
18
(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 didn‟t 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 to
cause 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
_________________________
17 Security Council Resolution 1566 (2004)
19
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 from
economic 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
20
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 resources
3. 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.
_________________________
18 International Covenant on Civil and Political Rights art 1, 2
21
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 State
Party 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.
22
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 PRESENT
CASE
1. Rules applicable in regard to the jurisdiction of Marsalan Criminal Courts
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
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
jurisdiction”19
23
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.
24
a. 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.
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
Commander – in – chief 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 led
by 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
___________________
21 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
art 1, 2, 4, 10, 11, 51, 76
25
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.
1.2. Violation in accordance to Article 2 in which the Varesen Military Forces led
by Retired General Jeron T and Former Varesen President Pido as their
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 – in – Chief 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.
26
1.3. Violation in accordance to Article 4 in which the Varesen Military Forces led
by Retired General Jeron T and Former Varesen President Pido as their
Commander – in – Chief, 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 Forces
led by Retired General Jeron T and Former Varesen President Pido as their
Commander – in – Chief, 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 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.
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 Commander – in – Chief the protection of women.
__________________________
22 Ibid.
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a. Violation of Article 11 in which the Varesen Military Forces led by Retired
General Jeron T and Former Varesen President Pido as their Commander –
in – Chief, 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 Retired
General Jeron T and Former Varesen President Pido as their Commander –
in – Chief, 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 Retired
General Jeron T and Former Varesen President Pido as their Commander –
in – Chief, 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 inculpation 24
___________________________
23 Ibid.
24 France v Congo (2003)
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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,
Varese‟s government had therefore violated Marsala‟s sovereignty, territorial
integrity and is in violation of international law.
II. The subsequent torturous acts committed by Varese against Jerica Teng and other
Marsalan citizens upon their detention violated international law.
III. The prosecution of the detained Marsalan citizens including Jerica Teng for crimes of
conspiracy, arson, and murder before a military court, in this case is Varese‟s 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 of
Marsala, therefore, the Republic has universal jurisdiction for crimes committed
against Jerica Teng and other Marsalan citizens and this is consistent with
international law.
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