SPECIAL INTERNATIONAL TRIBUNAL

THE CASE CONCERNING MARINE AND SEISMIC SURVEYS___________________________________________________________________Republic of AraguaiaApplicant

v.

Republic of RissoRespondent

Memorial for the Applicant

AGENTS:Cantago, Mary MichaelSuan, BeaPusod, Lord Anthony

TEAM NAME: TEAM 911

TEAM MEMBERS:Baring, Alexandra NicoleCantago, Mary MichaelEjan, JohrenPusod, Lord AnthonySuan, Bea

JD-2 M5

UNIVERSITY OF CEBU COLLEGE OF LAW MOOTING ACTIVITY

12

TABLE OF CONTENTS

INDEX OF AUTHORITIES..iiiSUMMARY OF FACTS.ivISSUES PRESENTED.. ...ixSUMMARY OF ARGUMENTS.....xDISCUSSION/ ARGUMENTS ... .1I. RISSO VIOLATED INTERNATIONAL LAW WHEN IT CONDUCTED THE SEISMIC SURVEY.. 1A. Risso international law when it conducted the seismic survey . 11. RECOs acts should be attributed to the Republic of Risso.. 12. Risso violated its International Obligations by not conducting an EIA prior to the conduct of the seismic surveys ..2a. Risso violated Espoo Convention and UNCLOS ..2b. Risso violated CBD 2B. Risso violated the obligation not to cause transboundary 3 C. Risso violated the precautionary principle .. .4D. Risso cannot invoke the doctrine of state necessity. .4 II. PANFILO BLAS IS NOT CRIMINALLY RESPONSIBLE FOR THE WARCRIME OF INTENTIONALLY LAUNCHING AN ATTACK IN THE KNOWLEDGE THAT SUCH ATTACK WILL CAUSE WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT WHICH WOULD BE CLEARLY EXCESSIVE IN RELATON TO THE CONCRETE AND DIRECT OVER-ALL MILITARY ADVANTAGE ANTICIPATED RELATIVE TO OIL SPILLS. .. 5A. The environmental damage caused by the attack are not in excess to the concrete and direct over-all military advantage anticipated .... 61. The attack was a valid exercise of their right to self-defense. ...62. The attack has a great military advantage for the Republic of Araguaia...7B. The environmental damage caused by oils spills and oil fires was not widespread, long term and severe.. 7 C. Admiral Panfilo Blas will not be held criminally responsible absent the requisite intent and knowledge of the relevant consequences.. 91. Panfilo Blas did not have the intent and knowledge in the commission of such crime causing damage to the environment. ...92. Panfilo Blas cannot be held liable under Article 25 (3) .10

CONCLUSION/ PRAYER..12

INDEX OF AUTHORITIESTreaties and ConventionsAdditional Protocol I (API) of the Geneva Conventions (1977).6Convention on Biological Diversity (1992).1,2Convention on Environmental Impact Assessment in a Transboundary Context, February 25, 1991( Appendix I , III)2,3Convention on the Law of the Sea, December 10, 1982. 1,2,3Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques 19768Geneva Conventions, (1949).8Rome Statute, (1998). 5,7,10,11Rio Declaration4Vienna Convention on the Law of Treaties, May 23, 1969.3,4Judicial and Arbitral DecisionsHyatt International Corporation vs. Iran1Pulp Mills on the River Uruguay (Argentina v. Uruguay)2UN DocumentsDraft Articles on Responsibility of States for Internationally Wrongful Acts 1,3,4,5Elements of Crimes5,9United Nations Charter4,6

WebsitesOcean.NationalGeographic .Com3International Fund for Animal Welfare.Org3

SUMMARY OF FACTSThe Araguaia and RissoThe Republic of Araguaia is a military government state while Republic of Risso is a highly industrialized country. They are both bordering the middle sea and are near Yukule island.Yukule IslandYukule Island is the largest island of Yukon, and the only island which is inhabited. The island is home to large bird populations. Massive groups of coral reef close to Yukulean shore attract thousands of tourists every year. Yukule is also known for its large oil reserves on the land and in the surrounding waters. Oil and tourism are its main source of revenue.Araguaia has been contesting Rissons sovereignty over the Yukule. The Araguaia, by successive Araguaian governments, based their claim on the proximity of Yukule to their coast and the unlawful annexation of the Yukule after the Second World War.Marine Seismic SurveysReco, the electric company operated by the Risso government, was given the permission to explore for hydrocarbon reserves by using 20-gun arrays to search for gas and oils. On 2008, the Embassy of Araguaia sent a diplomatic note to the Government of Risso concerning the effect of noise pollution from the RECOs hydrocarbon exploration activities. In that said note, Araguaia requests Risso to cease their activities pending an Environmental Impact Assessment (EIA) as required by the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention).The Republic of Risso responded stating that the marine seismic surveys undertaken are not activities listed in Appendix I of the Espoo Convention. According to Risso, marine seismic surveys are not hydrocarbon production but are merely exploration activities. Moreover, Risso argued that they have recently been unable to import sufficient quantities of oil and natural gas and therefore, any interference with its objective of energy independence is considered prejudicial to their national security.A mass stranding and eventual death of short-beaked dolphins and one pilot whale occurred in the territory of Risso on January 2009. Because of such, the government of Risso was tapped regarding the issue. Its government asserted that there is no specific evidence that establishes that RECOs marine seismic surveys caused the death of the marine animals. Risso insists that they have not breached any obligation imposed by The United Nations Convention on the Law of the Sea (UNCLOS) or Convention on Biological Diversity (CBD) and in fact, those treaties recognize the Republic of Rissos right to explore and exploit its natural resources. Further, Principle 15 of the Rio Declaration provide that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.Invasion of AraguaiaIn February 4, 2008, the Araguaian Armed Forces invaded Yukule and quickly gained control of Yukon and a Military Administration was established to govern Yukule directly under the supervision of the Crisis Military Commission of Araguaia. However, a resistance militia was formed, which mostly used naval guerilla tactics. Risso was the main source of military supply to the resistance. Facing an increasingly volatile situation in Yukule, the Military Administration established check-points in key areas of Yukule. Risso Daily News reported the incident and accused Araguaia patrol of reckless use of force against a civilian. Eventually, hostilities escalated, prompting Araguaia to tighten its control over Yukule, shooting unauthorized movement along the coasts. As a result, a group of fishermen were stranded on one of the island without food.Nirvana and Operation MaelstromOn 15th April 2010, ten NGOs decided to form a coalition under the name of Yukule Humanitarian Movement (The Movement) led by the Risson NGO Divinity Fighters. The Movement chartered an Inia-registerd merchant vessel, Nirvana, to deliver humanitarian packages to civilians stranded in Yukule.Admiral Blas received intelligence that the Nirvana was also carrying a stock of weapons. As a result, he established Maelstrom a commando of marines to deal with the potential threat led by Commander Tagle. They Nirvana proceeded headland, ignoring repeated warnings. This prompted a last warning coming from Araguaian forces. Araguaia naval patrol fired warning shots towards Nirvana, which prompted them to turn around.Araguaia conducted inquiries regarding operation maelstrom after it captured international eyes. Araguaia concluded that its operation was conducted lawfully on the grounds of national security and self-defense.Recapturing Yukule by RissoOn the 17th of September, Risso attacked the Araguaian land and naval forces in Yukule with the objective to recapture Yukule. Unable to stop the attack, Rear Admiral Freeman was instructed by Admiral Blas to resort to all resources available to stall the enemy. Admiral Blas commanded Captain Barret to take all measures possible to stop the advancement of the Risson forces. Eventually, Yukule was recaptured by Risso.As a result of defending Yukule island by the Araguian forces, oil leaked into the sea. The United Nations Environment Programme (UNEP) pointed out that the oil spills and fires could have major effect on the reef habitation offshore Yukule. However, Dr. Pecina from Inian Meteorology assured the public that the damage to the marine environment in the region was not devastating. In 2013, a study on coral reefs offshore of Yukule it was conluded that between those oiled and non-oiled reefs off Yukulean coastline showed no significant differences foe either species or families.

According to UNEP, certain habitations of coral reefs were extremely susceptible to hydrocarbon pollution and that thousands of birds in the region were found dead. Marine turtles, which use the Yukule Archipelago as nesting sites, were also endangered. Dr. Pecina, from the Inian Meteorology and Environmental Protection Administration assured the public that the damage to the marine environment in the region might take a few years for the environment to return to its former state.

ISSUES PRESENTED

I. Did Risso violate international law with respect to seismic surveys?II. Is Panfilo Blas criminally responsible for the war crime of intentionally launching an attack in the knowledge that such attack will cause widespread, long-term and sevedre damage to the natural environment which would be clearly excessive in relation to the concrete and direct over-all military advantage anticipated relative to oil spills?

SUMMARY OF ARGUMENTS

1. Risso violated international law when it conducted the seismic survey2. Panfilo Blas is not criminally responsible for the war crime of intentionally launching an attack in the knowledge that such attack will cause widespread, ong-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct over-all military advantage anticipated relative to oil spills.

ARGUMENTSI. RISSO VIOLATED INTERNATIONAL LAW WHEN IT CONDUCTED THE SEISMIC SURVEY

A. Risso international law when it conducted the seismic survey States under international law[footnoteRef:1] have the sovereign rightto exploit their natural resources. However, they also have the correlative responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of their national jurisdiction.[footnoteRef:2] By conducting seismic activities which caused noise pollution having a significant and adverse impact on a number of marine species,[footnoteRef:3] Risso breached its obligations under international law. [1: Convention on Biodiversity (CBD), Article 3; United Nations Convention on the Law of the Sea (UNCLOS), Article 193.] [2: CBD Art 3 ; UNCLOS Art 193] [3: Compromise, par 8.]

1. RECOs acts should be attributed to the Republic of Risso. The Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter, ARSIWA) provides that conduct of non-organs of the state may attributed to the latter, if such entity exercises elements of governmental authority.[footnoteRef:4]Riso permitted the hydrocarbon exploration conducted by RECO.[footnoteRef:5]As RECO is a state owned company under the direction and control of Risso, it exercises elements of governmental authority.[footnoteRef:6] Thus, the acts of RECO should be attributed to Risso. [4: Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 5, (2001), International Law Commission, YB II (2), [hereinafter Draft Articles].] [5: Compromise, par 6.] [6: Hyatt International Corporation v. Iran, 9 Iran-U.S.C.T.R.72, 88-94 (1985);State responsibility: Comments and observations received from Governments, ILC 53rd Sess., at 6 (Poland), U.N.Doc.A/CN.4/515/Add.2 (2001).]

2. Risso violated its International Obligations by not conducting an EIA prior to the conduct of the seismic surveys. The conduct of an EIA prior to any activity that may pose significant harm is a requirement under general international law.[footnoteRef:7] Thus, in not complying with such duty, Risso not only violated treaty law but as well as general international law. [7: Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 I.C.J. (April 20).]

a. Risso violated Espoo Convention and UNCLOSRisso has the legal obligation to make an Environment Assessment Impact (EIA) before conducting the seismic activity to determine whether these activities are likely to pollute the marine environment.[footnoteRef:8]Risso through its state owned or controlled corporation is required to conduct EIA for its seismic survey prior to conducting such activity. The seismic survey per se cannot be found under Appendix I, however since the activity is considered as a primary step in ascertaining offshore hydrocarbon, it would still fall under Appendix I. [footnoteRef:9] Assuming arguendo that seismic survey does not fall under Appendix I it still violated international law under UNCLOS, which provides that if a particular act of State may cause substantial pollution or significant harm to the marine environment, it needs to assess the potential effects of such activity. [8: UNCLOS Article 204, paragraph 2] [9: Appendix I, item 15]

b. Risso violated CBD The CBD provides that Each Contracting Party shall introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity. [footnoteRef:10] These cetaceans are part of Araguias revenue through eco tourism. By not conducting the said assessment it caused severe harm to Araguias economy since whales and dolphins are now avoiding the area that is associated with the seismic survey activity. Risso failed to abide by its obligation not to cause transboundary harm since the act of seismic survey caused economic damage to Araguai. Damage means significant damage caused to persons, property or the environment; and includes: (a) loss of life or personal injury; (b) loss of, or damage to, property, including property which forms part of the cultural heritage; (c) loss or damage by impairment of the environment; [footnoteRef:11] [10: CBD Article 14, The Rio Declaration Principle 17 ] [11: Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, Principle 2]

Pollution is not always physical. In large bodies of water, sound waves can carry undiminished for miles.[footnoteRef:12]The energy introduced into the marine environment by air guns constitutes pollution under UNCLOS. Pollution means the introduction by man of substance or energy into the marine environment which result or is likely to result in such deleterious effects as harm to the living resources and marine like. [footnoteRef:13]Over the past century, and even more in recent decades, the ocean has become a much noisier place. Explosives, pile-drivers, drilling, dredging, and air gun blasts used in seismic surveys for oil and gas exploration are driving up the volume, all against the backdrop of a never-ending, steadily-growing, drumbeat of noise generated by an ever-increasing global shipping fleet. Noise in the ocean is causing whales stress, making it harder for them to hear, and forcing them to shout. It is excluding them from important habitats and may even be killing them.[footnoteRef:14]Airgun blasts harm whales, dolphins, sea turtles and fish. The types of impacts marine mammals may endure include temporary and permanent hearing loss, abandonment of habitat, disruption of mating and feeding, beach standings and even death. Seismic airguns could devastate marine life. [12: ocean.nationalgeographic.com] [13: UNCLOS Article 1 (4)] [14: International fund for animal welfare ifaw.org]

Since both nationas are parties to the CBD, UNCLOS and the Espoo Convention, both must comply with the agreement in good faith [footnoteRef:15], by Risso conducting the seismic activity without taking into consideration the agreements that it entered into, it has breached its obligation under these treaties. [15: Vienna Convention on the Law of Treaties, Article 26]

B. Risso violated the obligation not to cause transboundary The concerned parties may consider whether the activity is likely to have a significant adverse transboundary impact by virtue of the following criteria: (a) size, (b) location and (c) effect. [footnoteRef:16] For the first criteria, size is the proposed activities which are large for the type of activity.[footnoteRef:17] It failed to address the intensity of the sound it produce even if they only used two vessels and relatively small in size. [footnoteRef:18] For the second and third criteria, parties should consider the location and effect that it should cause harm to the environment. Risso conducted the seismic survey within Yuele[footnoteRef:19] which is 100 kilometers away from Araguian[footnoteRef:20] where the whales and dolphins exist. By conducting such activity, it caused harm to Araguians economy since their main industryis eco-tourism and at the same time, it endangered the cetaceans. [16: Espoo Convenion, Appendix III 1(a)] [17: Id. at appendix III 1(a)] [18: Compromis, par 11.] [19: Compromis, par 6.] [20: Compromis, par 3.]

C. Risso violated the precautionary principle.This principle is expressed in the Rio Declaration, In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.[footnoteRef:21]Risso violated this principle by not taking any preventive measures before conducting the seismic survey. [21: The Rio Declaration, Principle 15]

The precautionary principle has already attained the status of international law since it is embodied in various international agreement like the Rio Declaration [footnoteRef:22], World Charter for Nature [footnoteRef:23] and the Vienna Convention for the Protection of the Ozone layer.[footnoteRef:24] [22: The Rio Declaration, Principle 15] [23: World Charter for Nature, it recognize the need for appropriate measures at the national and international levels to protect nature and promote international co-operation in that field] [24: Vienna Convention for the Protection of the Ozone layer, Article 2, paragraph 1]

D. Risso cannot invoke the doctrine of state necessity. Risso claims that the act of seismic survey is excused under the doctrine of necessity [footnoteRef:25] since they began to experience energy crisis. [footnoteRef:26]The elements for a state to invoke doctrine of necessity are the following: (a) it is the only means for the state to safeguard an essential interest against a grave and imminent peril, and (b) it does not seriously impair an essential interest of another state. [footnoteRef:27] For the first element the seismic survey is not the solution to their energy crisis since it will not address the problem right away. Conducting such survey will not provide them oil, in fact this survey is only one of the steps for exploration of oil and it would still take years before they can produce oil. In fact there is no guarantee that there will really be oil in conducting such activity. It is a mere assessment if oil exists in such area. Risso did not establish that seismic survey is the only way to protect its interest. It also failed to consider any alternative. For the second element, it did seriously impair an essential interest of Araguaia which is their economy. Eco tourism is one of Aragauias revenue; by conducing seismic activity it produced noise pollution which caused the whale and dolphins to avoid the area. [25: Compromis, par 15. ] [26: Compromis, par 6. ] [27: Articles on Responsibility of States for Internationally Wrongful Act , Article 25]

II. PANFILO BLAS IS NOT CRIMINALLY RESPONSIBLE FOR THE WARCRIME OF INTENTIONALLY LAUNCHING AN ATTACK IN THE KNOWLEDGE THAT SUCH ATTACK WILL CAUSE WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT WHICH WOULD BE CLEARLY EXCESSIVE IN RELATON TO THE CONCRETE AND DIRECT OVER-ALL MILITARY ADVANTAGE ANTICIPATED RELATIVE TO OIL SPILLS.

The war crime of intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated[footnoteRef:28] has the five elements[footnoteRef:29]: (1.) The perpetrator launched an attack; (2.) The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (3.) The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (4.) The conduct took place in the context of and was associated with an international armed conflict. (5.) The perpetrator was aware of factual circumstances that established the existence of an armed conflict. These elements must concur; absence of one would not constitute the commission of a crime. The attack made by the Araguaian against the Risson forces did not satisfy the elements required to make such attack a war crime. [28: Rome Statute , Article 8 (2) (b( (iv)] [29: International Criminal Court, Elements of Crimes]

A. The environmental damage caused by the attack are not in excess to the concrete and direct over-all military advantage anticipated

One of the main purposes of the United Nations is to maintain international peace and security[footnoteRef:30] among the states. Along with these aim, every State has an inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.[footnoteRef:31] Hence, states are justified in resorting to various means and methods necessary to protect themselves. [30: United Nations Charter, Chapter 1, Article 1] [31: Ibid., Chapter 7, Article 51]

3. The attack was a valid exercise of their right to self-defense.

As a limit to this right, the attack must adhere to the established principles of international humanitarian law, particularly the principle of proportionality. Under the Additional Protocol of Geneva Convention, attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.[footnoteRef:32] [32: Additional Protocol I to the Geneva Conventions, Article 52 (2)]

Here, When Risso launched an intensive air campaign against the Araguaian land and naval forces in Yukule, while the Risson navy engaged Araguaian navy on the seas[footnoteRef:33], Araguaia took all the actions necessary to defend their state and to preserve Yukule. The attack employed by Araguaia was justified in view of the fact that Araguaian government at that time was weakening[footnoteRef:34] due to the international condemnation suffered by their Operation Maelstrom[footnoteRef:35]. [33: Compromis, par. 29] [34: Compromis, par. 29] [35: Compromis, par. 28]

4. The attack has a great military advantage for the Republic of Araguaia

The expression concrete and direct overall military advantage refers to a military advantage that is foreseeable by the perpetrator at the relevant time. [footnoteRef:36] Here, Araguaian forces took all measures possible to stop the advancement of the Risson forces.[footnoteRef:37] The attempt of the Risson to disrupt Araguaias sovereignty over Yukule poses a threat that the Risson attacks would only lead to the destruction of Yukule.[footnoteRef:38] The attacks conducted by Araguaian reflect a definite military objective which justifies them to choose methods necessary to stall the enemy. The preservation of Yukule as well as their sovereignty claim over it against the Risson forces served to be the substantial and foreseeable military advantage seen by the perpetrator. Moreover, the imminent defeat and recapture by Risson over Yukule are the essential matter that could be foreseen if Araguaia will not took its defense. Hence, any action or collateral damage that it may have cause to the environment pursuant to these military objectives is justified. [36: Commentary on the Additional Protocols to the Geneva Conventions, International Committee of the Red Cross (ICRC Study), para.2209.] [37: Compromis, par. 33] [38: Ibid.,]

B. The environmental damage caused by oils spills and oil fires was not widespread, long term and severe.

It is provided that an attack that causes environmental damage is considered to be a war crime if it is widespread, long term and severe.[footnoteRef:39]Likewise, the protection of environment in times of armed conflict is well- enshrined in the Additional Protocol I to the 1949 Geneva Conventions[footnoteRef:40], where it prohibits an environmental damage that is widespread, long term and severe. These three requirements serve to be the basis in determining whether the environmental damage caused is punishable as a war crime. To further understood, it is important to define the extent, duration and severity criteria for the determination of environmental damage. Under the 1976 Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques, widespread means encompassing an area of several hundred square kilometres; long-lasting refers to lasting for a period of months, or approximately a season; severe is defined as involving serious or significant disruption or harm to human life, natural and economic resources or other assets[footnoteRef:41]. A method or a means of war does not become unlawful under Article 35 of the Protocol unless it cumulatively fulfils all three conditions included in the provision.[footnoteRef:42] [39: Rome Statute, Article 8 (2)(b)(iv)] [40: Additional Protocol I to the 1949 Geneva Conventions, Article 35 and 55] [41: International Committee of the Red Cross ICRC (ICRC), 1976 Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques, Article 1] [42: Commentary on the Additional Protocols to the Geneva Conventions, International Committee of the Red Cross (ICRC Study), para.1457.]

In this case, the attack undertaken by Araguaian forces through the opening of valves of an offshore oil platform, the discharge of oil and the burning of the oil storage tanks did not satisfy the required conditions. The attack may take a few years to restore the environment, but it was neither widespread nor severe. The attack only affected the certain portion of the sea surrounding the Yukule as the oil rig and the surrounding areas were awash in smoke, soot and ash.[footnoteRef:43] While United Nations Environment Programme (UNEP) pointed out that the oil spills could have a major effect on the massive reef habitation offshore Yukule[footnoteRef:44], such effect was not adverse and long-lasting. [43: Compromis, par. 34] [44: Compromis, par.35]

Dr. Pecina from the Inian Meteorology and Environmental Protection Administration assured the public that the damage to the marine environment in the region was not devastating, but added that it might take a few years for the environment to return to its former state[footnoteRef:45]. Apparently, the experts report proved that it may have effects, and it may entail few years to regain the former status of the environment, but the damage was not that devastating. This means that the oil spills and oil fires may have affected the marine environment but absent the required element of extent and severity, the war crime of launching an attack that cause environmental damage could not be sustained. Likewise, a study on coral reefs offshore Yukule was concluded by a joint team consisted of members from national science institutes of Araguaia, Risso and Inia. Two-way analysis of variance between those oiled and non-oiled reefs off Yukulean coastline showed no significant differences for either species or families.[footnoteRef:46] The report strongly proved that the oil spills did not greatly affected the marine lives. Not having satisfied the three conditions, the damage was clearly not in excess of its military advantage. Clearly, Araguaia could not be held responsible for this crime. [45: Compromis, par.36] [46: Ibid., par.37]

E. Admiral Panfilo Blas will not be held criminally responsible absent the requisite intent and knowledge of the relevant consequences.

3. Panfilo Blas did not have the intent and knowledge in the commission of such crime causing damage to the environment.

Existence of intent and knowledge can be inferred from relevant facts and circumstances.[footnoteRef:47] The mental element of this crime requires that: (1) the perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such and that (2) the perpetrator was aware of factual circumstances that established the existence of an armed conflict. To be convicted, these requirements should be proved. [47: General introduction, International Criminal Court, Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2000).]

Apparently, Admiral Panfilo Blas neither have the intent to inflict such damage nor knowledge that that the attack would cause incidental death or injury. Ascertained from the facts, being head of the military government his objective was for the maintenance of peace and security among and within its territory. Their claim and sovereignty over Yukule bears with him the responsibility of protecting such territory and its preservation against the opposing claims and forces. When Araguaian government weakens after the condemnation of the Operation Maelstrom, Risson government aimed to recapture Yukule.[footnoteRef:48] In view of their weakening system and their failure to stop the advancement of Risson forces, Admiral Blas resorted to all resources available to stall the enemy[footnoteRef:49] The necessity of defense justified such action. Specifically, the intent of Panfilo Blas was clearly for the prevention of Risson forces and not to inflict damage or injury to the environment. Moreover, he did not even know that it would be the only means and defense that they have against Risson forces. Therefore, he cannot be liable with this war crime, absent the requisite mens rea in perpetrating the crime. [48: Compromis, par.29] [49: Ibid., par. 30]

4. Panfilo Blas cannot be held liable under Article 25 (3)

Under the Rome Statute, individual criminal responsibility[footnoteRef:50] attaches when a person commits any of the enumerated acts in the provision. Particularly, a person is criminally responsible if he orders, solicits or induces the commission of such a crime which in fact occurs or is attempted[footnoteRef:51]. Being head of the military government, it is inevitable on the part of Admiral Panfilo Blas to give orders and directions to his subordinates in order to achieve certain military objectives. As usual in every criminal case, the acts committed must be accompanied with the mental element of intent in committing the crime. The acts enumerated under the Rome Statute establish criminal responsibility to individuals if it is accompanied with the requisite mens rea. [50: Rome Statute, Article 25] [51: Rome Statute, Article 25 (3)(a)]

However, the giving of order of Admiral Panfilo Blas has no direct effect for the commission of the said war crime. He cannot be held liable because of his act of ordering and he cannot even be liable by reason of being a military superior. He has given general orders to his subordinates to resort to all resources available to stall the enemy[footnoteRef:52] and to take all measures possible to stop the advancement of the Risson forces.[footnoteRef:53] Subsequent to the giving of order, no succeeding acts showed that he influenced he specific conduct of military actions taken by the Araguaian forces. This circumstance negated the intent on the part of Panfilo Blas in committing the crime. Hence, no liability attaches to Admiral Panfilo Blas as there was no direct effect between his order and the resulting consequences. He was after all anticipating the great military advantage that Araguaian has over Yukule as against Risson government. [52: Compromis, par.30] [53: Ibid, par. 33]

CONCLUSION

Wherefore, the applicant prays that this Honorable Court, render judgment finding that: 1. Rissos seismic survey violated international law;2. Risso is required to conduct an EIA;3. Risso cannot invoke the doctrine of necessity, and;4. Panfilo Blas is not criminally responsible for the war crime of intentionally launching an attack.

Respectfully submitted,AGENTS OF APPLICANT