SIL Mooting Final Draft

SPECIAL INTERNATIONAL TRIBUNAL

THE CASE CONCERNING

SEISMIC SURVEYS AND OIL SPILLS

THE REPUBLIC OF ARAGUAIA

(APPLICANT)

V.

THE REPUBLIC OF RISSO

(RESPONDENT)

MEMORIAL FOR THE APPLICANT

NAMES OF COUNSELS:

AGERO, NIKKI ROSE

BOLTIADOR, MARYDITH

FORTUNA, JERYL GRACE

SEBALLOS, ARIANE STEPHANIE

VARGAS, HANNAH

11 MARCH 2015

Applicant’s Memorial

TABLE OF CONTENTS

INDEX OF AUTHORITIES 4

SUMMARY OF FACTS 6

ISSUES PRESENTED 9

SUMMARY OF ARGUMENTS 10

DISCUSSION/ARGUMENTS 12

A. The acts made by Risso Electric Company (RECO) violate the

principles of international law and are attributable to the Republic

of Risso.

12

I. RECO’s actions are attributable to the State of Risso. 12

II. Because RECO’s actions are attributable to the State of Risso,

the State violated international law by conducting seismic surveys

that caused environmental and economic harm withing the Yukule.

13

i. An Environmental Impact Assessment required under the

Espoo Convention is necessary for RECO’s activities.13

a. Activities of RECO were one of those listed under

Appendix I of the Espoo Convention which require an

Environmental Impact Assessment (EIA).

14

b. Considering the criteria under Appendix III of the Espoo

Convention, RECO’s activities result to a significant

transboundary impact.

14

ii. Risso’s Mitigation Measures Do Not Relieve It of Its Duty to

Conduct an EIA. 15

iii. The precautionary approach enshrined under Principle 15 of

the Rio Declaration is violated.15

iv. Under the Convention on Biodiversity (CBD) and the United

Nations Convention on the Law of the Sea (UNCLOS), the

acts of RECO are not in accordance with the State of Risso’s

right to explore and exploit their own natural resources.

16

III. The doctrine of necessity does not excuse Risso’s failure to

comply with its international obligations.17

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B. Admiral Panfilo Blas, Chairman of the Crisis Military Commission of

the Republic of Araguaia, is not criminally responsible for

committing a war crime.

18

CONCLUSION/PRAYER 23

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS PAGES

Espoo Convention Article 2 15

UNCLOS Article 4, note 1, Article 206 15

Elements of Crimes of the Rome Statute of the International Criminal Court,

Article 8 (2) B

20

UNITED NATIONS DOCUMENTS

United Nations Treaty Handbook Chapter 4 14

BOOKS

Alex G. Oude, Acoustic Pollution in the Oceans: The Search for Legal

Standards (2000)

17

JOURNAL ARTICLES

James Crawford, “State Responsibility: The General Part”, Cambridge

Studies in International and Comparative Law I (2013)

12

European Union, “Guidance on the application of the Environmental Impact

Assessment Procedure for Large-scale Transboundary Projects

(2013)

12

Harald Hohmann, Precautionary Legal Duties and Principles of Modern

International Environmental Law 121 (1994)

15

Drumbl, Interantional Human Rights, International Humanitarian Law and

Environmental Security: Cam the International Criminal Court Bridge

the Gaps., ILSA Journal of International and Comparative Law, Vol.6

19

Ryan Gilman, Expanding Environmental Justice after War: The Need for

Universal Jurisdiction over Environmental War Crimes

21

CASES

Schering Corporation VS Iran (1984) 12

Prosecutor VS TADIC, Opinion and Judgment 19

MISCELLANEOUS

ILC Articles, ART. 5 13

IHT Statutes ART. 13 19

ONLINE SOURCE

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Regime Crimes Liaison Office, “Elements of Crimes” IRAQI Special Tribunal

Elements of Crimes,

http://law.cwru.edu/groatian.moment-blog/documents/1ST_Elements.

[email protected] (A) (2)

23

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http://law.cwru.edu/groatian.moment-blog/documents/[email protected]

http://law.cwru.edu/groatian.moment-blog/documents/[email protected]


SUMMARY OF FACTS

The Republic of Araguaia, Kingdom of Inia and Republic of Risso are bordering the

Middle Sea. Risso is a highly industrialized country (R.1)while Araguaia was ruled by a

military government with Admiral Blas as the chairman of the Crisis Military Commission

which acted as the de facto government of the country.(R.2) Yukule lies about 200km

east of Risso, 300km south of Inia and 100km from Araguaia's west coast. It was under

Risson control until 2008 with the Risson government stationing naval forces in Yukon

and islets on Yukule. (R.3) Yukule's oil and tourism are its main source of revenue. (R.4)

Since 1980, Araguaia has been contesting Risson sovereignty over Yukule based on

the proximity of Yukule to their coast and the unlawful annexation of Yukule after WW2.

(R.5)

By 2006, Risso began to experience energy crisis and on the same year, a financial

crisis led to a decline in demand for their commodities and as a result its economy

contracted significantly which led to Risso granting permission to RECO for

hydrocarbon reserve exploration within Yukule using 20-gun arrays. (R.6)

On the 28th of August, a diplomatic note from Araguaia was forwarded to the

Government of Risso stating that it wanted to enter into consultations regarding the

effect on of noise pollution of RECO's hyrdrocarbon activities as it was having a

significant adverse impact on a number of marines species.(R.8) However, it was

Risso’s submission that these are not activities listed in Appendix 1 of the Espoo

Convention and that marine seismic activities are exploration activities not hydrocarbon

production and that mainly since Risso was unable to import sufficient quantities of oil

and natural gas, it was committed to energy independence.(R.9)

While the correspondence between Risso and Araguaia did not reach a settlement,

RECO continued to conduct marine seismic surveys.(R.12) Sometime January 2009, a

mass stranding of short beaked dolphins and a pilot whale occurred in Risso’s territory

twenty kilometers away from Araguaia. (R.13) On 20th January, Araguaia provided

Risso with a de’marche which stated in sum that Risso failed to abide by its treaty

obligations and that it is a clear breach of the precautionary principle. In an attempt to

alleviate the concerns, Risso has taken the step of requiring survey vessels to have an

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on board observer as well as airguns not to be used when a whale is spotted within 500

meters. Unconvinced, Araguaia reads into the enshrined principle 15 of the Rio

Declaration as nonexistent. (R.14)

On February 2009, Risso and Araguaia submitted to an inquiry commission

regarding RECO’s activities in Yukule and whether or not it resulted or will result to a

significant adverse transboundary impacts. By April 2009, the commission presented its

final opinion with one member finding RECO’s activities to cause adverse impacts,

another member finding no such cause from RECO’s activities and the last to have

found that it might have caused significant transboundary impacts but were mitigated by

the measures it has enforced that would unlikely cause the same effects to occur in the

future. (R.16)

By January 2008, Araguaia was amidst a political crisis which resulted in civil

unrests. To divert this, the Crisis Military Commission took control of the Yukule

Archipelago. (R.19)However, inhabitants and the remaining members of the Risson

armed and police forces in Yukule formed a resistance militia with Risso as the main

source of military supply to the resistance. (R.20) Because of this, Military

Administration established checkpoints in key areas of Yukule and on several

occasions, fishing boats were caught transporting weapons and explosive devices to

Yukule. (R.22)In order to secure Yukule, Military Administration enforced that all foreign

vessels entering Yukule had to request permission from the administration. One

incident of this was the death of a fisherman upon entering Yukule’s maritime control

zone. (R.23) Hostilities escalated which prompted Araguaia to tighten control over

Yukule, shooting unauthorized movement along the coasts and as a result, a group of

fishermen were stranded without food. (R.24) By 2010, the Divinity Fighters, a collation

of ten NGO’s served as a humanitarian group .(R.25) On May 2010, it had chartered

Nirvana, a vessel to deliver humanitarian packages to civilians stranded in Yukule.

(R.26) Meanwhile, Blas received that Nirvana was also carrying an arsenal of weapons

and soon established a commando of 60 marines to deal with this threat under the

operation name “Maelstrom”. (R.27) When Nirvana was 40 nautical miles away, it was

warned not to approach nearer but kept its course, when it was 24 nautical miles away,

a final warning was issued and warning shots were fired towards it resulting to Nirvana

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turning around. (R.28) The Risson President condemned Maelstrom as a serious

violation of international humanitarian law for preventing humanitarian aid. (R.28)

Following the post Nirvana demonstrations and weakening of Araguaia's

govenrment, Risso decided to recapture Yukule and set their navy to engage with

Aragauian navy on the seas. (R.29) On September, Captain Barret of Araguaia opened

the valves of an offshore oil platform upon orders along with three other oil tankers.

(R.31)On October 2010 large oil storage tanks on the oil rig burst into huge fires and a

large amount of the oil made it to the sea. (.33)UNEP pointed out that these oil spills

could have a major effect on the massive reef habitation offshore Yukule and that these

were susceptible to hydrocarbon pollution. Thousands of birds in the region were found

dead and marine turtles were also endangered. On June 2011, public health experts on

an international conference projected that the air and maritime pollution in the aftermath

of the war would spread throughout states bordering the middle sea. (r.35)

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ISSUES PRESENTED

I. Whether or not the acts made by Risso Electric Company (RECO) with respect to the

seismic surveys are attributable to the Republic of Risso and violative the principles of

international law.

II. Whether or not Pánfilo Blas is criminally responsible for the war crime 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

relation to the concrete and direct overall military advantage anticipated relative to the

oil spills.

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SUMMARY OF ARGUMENTS

RECO’s actions are attributable to the Republic of Risso. The marine seismic

surveys conducted by the RECO and the compelling need of the Republic of Risso for

quantities of oil and natural gas were intimately related that RECO could not be properly

regarded as distinct from the Republic of Risso. Furthermore, the Risso Electric

Company merely exercised governmental functions when it conducted hydrocarbon

exploration. Thus any actions or inactions on its part are attributable to the Republic of

Risso.

Because RECO’s actions are attributable to the State of Risso, the State violated

international law by conducting seismic surveys that caused environmental and

economic harm. RECO’s activities require an EIA because of the following: (a) the

activities are listed in Appendix I and III, also it is likely that it will cause adverse effect or

any transboundary harm; (b) the activities are for extraction of petroleum and natural

gas.

RECO’s mitigating measures instead of preparing an EIA if only to comply with the

Espoo Convention do not relieve it of its duty to conduct an EIA because those

measures have not reduced the impacts of its seismic surveys below the “significant”

level.

The precautionary approach enshrined under Principle 15 of the Rio Declaration

was also violated. Risso violated the precautionary principle when it decided to conduct

seismic surveys without considering the effect of the resultant noise on beaked whales.

It is not required for Risso to be certain that a harmful consequence will occur, it merely

needs to take precautionary measures to address potential harm before it occurs.

The acts of RECO are not in accordance with its right to explore and exploit their

own natural resources. Risso is required to cease its seismic surveys because the noise

generated constitutes pollution sufficient to trigger UNCLOS’s protective mechanisms.

UNCLOS also requires that Risso prevent pollution in accordance with international

standards,1 and that it protect its marine environment. Risso errs in claiming that its

activities are not subject to regulation because they are exploratory. Section XIII

1 Id. arts. 192-94, 212.

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extends UNCLOS’s general mandate of marine preservation to exploratory and

research activities.2

Under international law, Risso was required to protect the marine environment,

prevent transboundary harm, and conduct an EIA. Risso’s failure to comply with these

obligations is not excused by necessity. Risso has not shown that its seismic surveys

are the only way for it to safeguard its national security against an energy shortage.

Should Admiral Panfilo Blas be held criminally liable for environmental damage,

difficulty will be had in proving all elements of this crime. The oil fires and oil spills cause

did not cause long-term damage to the environment. He also did not possess the

requisite mens rea because there is no direct evidence indicating that he knew that the

attacks would cause “widespread, long-term and severe damage to the natural

environment.” Finally, the environmental damage was not clearly excessive in relation to

the concrete and direct overall military advantage anticipated. The environmental

damage was necessary and militarily justified.

2 UNCLOS, supra note 1, pmbl., 192, 194, 238, 240, 242; Scott, supra note 27, at 300.

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DISCUSSION/ARGUMENTS

A. The acts made by Risso Electric Company (RECO) violate the principles of

international law and are attributable to the Republic of Risso.

I. RECO’s actions are attributable to the Republic of Risso.

While it is true that under the international law, the basic presumption is that state-

owned corporations, are not, by virtue of shareholding, attributable to the state,3 proof

can be made to significantly show that “despite its juridical personality [the company

has] no effective separate existence and that the affairs of the entity and the State were

so closely intertwined and confused that the entity could not be properly regarded for

any significant purpose as distinct from the State and vice versa.4

In the case at hand, the Risso Electric Company is a state-owned company that was

permitted by RECO to begin exploration for hydrocarbon reserves within the Yukule. Its

task to survey for potential natural gas and oil reserves was necessarily connected with

the Republic of Risso’s energy crisis. Hence, it is safe to say that the activities of RECO

and the compelling need of the Republic of Risso were intimately related that RECO

could not be properly regarded as distinct from the Republic of Risso. Thus, any acts or

inactions on the part of RECO is attributable to the Republic of Risso.

Furthermore, the Articles on Responsibility of States for Internationally Wrongful

Acts ("ILC Articles") provided for the relevant rules on attribution for the purpose of state

responsibility under international law. Article 5 reads as follows:

Article 5. Conduct of persons or entities exercising elements of governmental

authority . The conduct of a person or entity which is not an organ of the State under

article 4 but which is empowered by the law of that State to exercise elements of the

governmental authority shall be considered an act of the State under international law,

provided the person or entity is acting in that capacity in the particular instance.5

Article 5 is meant to cover a wide variety of bodies which, though not organs, may

be empowered to exercise elements of governmental authority. This includes public

corporations, semipublic entities, public agencies and even private companies, provided 3 As affirmed in certain decisions of the US-Iran claims Tribunal: see e.g. Schering Corporation vs. Iran, (1984)4 James Crawford, “State Responsibility: The General Part”, Cambridge Studies in International and Comparative Law, 1 (2013).5 ILC Articles, art. 5.

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that in each case the entity is empowered by the law of the state to exercise functions of

a public character normally exercised by state organs, and the conduct of the entity

relates to the exercise of the governmental authority concerned.

It must be noted that the Risso Electric Company merely exercised governmental

functions when it conducted hydrocarbon exploration owing to the fact that it was public

in character, not the mention that it was done with the express consent of the Republic

of Risso.

II. Because RECO’s actions are attributable to the State of Risso, the State

violated international law by conducting seismic surveys that caused

environmental and economic harm.

i. An Environmental Impact Assessment required under the Espoo Convention is

necessary for RECO’s activities.

The 1991 UNECE Convention on Environmental Impact Assessment in a

Transboundary Context, known as the Espoo Convention, introduces specific rules for

conducting an EIA of activities located on the territory of one contracting party, defined

as the Party of origin, and likely to cause significant adverse transboundary impact in

another contracting party, defined as the affected Party (Article 2).6

It is undeniable that the noise pollution from the RECO’s hydrocarbon exploration

activities is having a significant adverse impact on a number of marine species,

including especially dolphins that travel between the exclusive economic zones of Risso

and Araquaia.Consequently, Risso should conduct an environmental impact

assessment (EIA). It should have been prepared prior to the authorization of the airgun

activities. Pending the preparation of an EIA that considers the impacts of noise

pollution on marine mammals, Risso’s hydrocarbon production activities should cease.

Refusal to perform such is tantamount to treaty and customary international law

obligations.

6 European Union,”Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects”, 2013

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a.Activities of RECO were one of those listed under Appendix 1 of the Espoo

Convention which require an Environmental Impact Assessment (EIA).

Appendix I of the Espoo Convention listed offshore hydrocarbon production

activities which requires the conduct of an EIA. RECO’s activities fall within this

category. Risso’s seismic surveys constitute “offshore hydrocarbon production” because

they are a necessary first step in locating possible sites where Risso can extract oil and

natural gas.7 Risso errs in contending that, under the proposed Amendment to Appendix

I, “offshore hydrocarbon production” only refers to extraction activities.8

Although Araquaia has ratified the first and second amendments to the Espoo

Convention,9 these amendments have not yet entered into force.10 Therefore, neither

party is bound by either amendment11 and Risso must assess the environmental impact

of its seismic surveys.

b.Considering the criteria under Appendix III of the Espoo Convention, RECO’s

activities resulted to a significant transboundary impact.

Risso is required to conduct an EIA for proposed activities that are “likely to cause a

significant adverse transboundary impact . . . .” as a contracting party to the Espoo

Convention. 12 Appendix III provides three general criteria for parties to consider when

determining whether an activity is likely to have such an impact.13 They are: (1) whether

the size of the proposed activity is large for the type of activity; (2) whether the proposed

activity is located close to an area of special environmental sensitivity; and, (3) whether

the proposed activity has potentially adverse effects on valued species or organisms.14

In the case at hand, Risso is required to conduct an EIA because the size, location, and

effects of Risso’s seismic surveys all indicate that they will have a significant adverse

transboundary effect.

7 Ibid.8 Ibid.9 Ibid.10 Ibid.11 See UN Treaty Handbook, ch. 4, ¶ 4.4.1(f), http://untreaty.un.org/English/TreatyHandbook/chapter4.htm (last visited Nov. 17, 2009). 12 88 Espoo Convention, supra note 46, art. 2(5). 13 89 Id. app. III(1). 14 Id.

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ii.Risso’s Mitigation Measures Do Not Relieve It of Its Duty to Conduct an EIA.

Risso’s mitigation measures do not relieve it of its duty to conduct an EIA because

those measures have not reduced the impacts of its seismic surveys below the

“significant”15 level. The ramp-up procedure as a mitigating measure it undertook has

not been proven to be effective. Risso’s second mitigation measure—visual monitoring16

—is also not likely to reduce the impact of its seismic surveys below the “significant”

level. Although visual monitoring may reduce the harm to whales when they are at or

just below the surface, received levels of airgun pulses are lower just below the surface

than at deeper depths.17 Therefore, Risso’s mitigation measure does not reduce the

impact to whales located at deeper depths, which are more likely to be harmed. As

such, Risso must conduct an EIA.

iii.The precautionary approach enshrined under Principle 15 of the Rio

Declaration is violated.

Principle 15 of the Rio Declaration that, “In order to protect the environment, the

precautionary approach shall be widely applied by States according to their capabilities.

Risso violated the precautionary principle when it decided to conduct seismic surveys

without considering the effect of the resultant noise on beaked whales. It is not required

to be certain that a harmful consequence will occur, it merely needs to take

precautionary measures to address potential harm before it occurs.18 Absent more

information about the effect of noise on beaked whales, Risso was therefore required to

be cautious when introducing potentially harmful levels of noise within the Yukule. Here,

harm has already occurred, indicating that Risso failed to apply the precautionary

principle in contravention to international law.

15 See CBD, supra note 1, art. 14, ¶ 1(a); Espoo Convention, supra note 46, art. 2; UNCLOS, supra note 1, art. 206. 16 Id.17 Richardson et al., supra note 8, at 142. 18 Harald Hohmann, Precautionary legal Duties and Principles of Modern Environmental law 121 (1994)

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iv.Under the Convention on Biodiversity (CBD) and the United Nations

Convention on the Law of the Sea (UNCLOS), the acts of RECO are not in

accordance with the State of Risso’s right to explore and exploit their own natural

resources.

As a party to UNCLOS, the CBD, and the Vienna Convention on the Law of

Treaties, Risso is obligated to carry out the provisions of these treaties in good faith.

UNCLOS prescribes a State’s rights and responsibilities in relation to the oceans and

the law of the sea. Its provisions have achieved the status of customary international

law, and obligate Risso to prevent harmful pollution of the marine environment.

Furthermore, the CBD requires Risso to conserve global biodiversity. By emitting noise

pollution within the Yukule, Risso harmed the beaked whale population and its

neighboring State in violation of the aforementioned duties.

Risso is required to cease its seismic surveys because the noise generated

constitutes pollution sufficient to trigger UNCLOS’s protective mechanisms. Article

194(1) requires parties to take all measures “necessary to prevent, reduce and control

pollution of the marine environment . . . . Article 1(4) explicitly states that “pollution of the

marine environment” means the “introduction by man . . . of substances or energy into

the marine environment . . . which results or is likely to result in such deleterious effects

as harm to living resources and marine life . . . .” (emphasis added). This wording

extends to noise pollution because sound waves transfer “energy” from one region of

space to another. As such, Article 194(1) encompasses underwater noise as a type of

pollution. Such a reading also comports with UNCLOS’s Preamble and overarching goal

of marine protection.

UNCLOS also requires that Risso prevent pollution in accordance with international

standards,19 and that it protect its marine environment.20Furthermore, UNCLOS tempers

a State’s right to exploit its natural resources with the duty to conserve living marine

resources and to “consider the best scientific evidence available.” 21 These

preservationist provisions specifically extend to cetaceans.22Beaked whales use sound 19 Id. arts. 192-94, 212. 20 Id. arts. 192-94, 235; Hunter et al., supra note 11, at 743. 21 UNCLOS, supra note 1, arts. 56, 61; Hunter et al.,supra note 11, at 764. 22 Id. (“[I]n the case of cetaceans [States] shall in particular work through the appropriate international organizations for their conservation, management, and study”).

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to communicate and navigate, and are therefore especially susceptible to the noise

generated by the seismic surveys. 23 By thus creating noise that pollutes the marine

environment and harms beaked whales, Risso is violating its duty to protect marine

biodiversity under UNCLOS.

Risso errs in claiming that its activities are not subject to regulation because they

are exploratory.24Section XIII extends UNCLOS’s general mandate of marine

preservation to exploratory and research activities.25 Article 240 allows States to

conduct scientific research in the ocean as long as the research conforms with the duty

to preserve the marine environment.26 This duty to protect is expansive.27 As a result,

States cannot carry out even scientific research or “exploration” if it harms marine

biodiversity.28 Risso’s actions violate this principle.

III. The doctrine of necessity does not excuse Risso’s failure to comply with its

international obligations.

Under international law, Risso was required to protect the marine environment,

prevent transboundary harm, and conduct an EIA.29 Risso’s failure to comply with these

obligations is not excused by necessity. Article 25 of the Draft Articles on Responsibility

of States for Internationally Wrongful Acts (“Article 25”) provides that a State may only

invoke a necessity argument when its action: “(a) is the only way for the State to

safeguard an essential interest against a grave and imminent peril; and (b) does not

seriously impair an essential interest of the State or States toward which the obligation

exists, or of the international community as a whole.”30 Risso cannot invoke the excuse

of necessity because it fails to meet these requirements.

23 R. ¶¶ 15, 16; see supra note 20; McCarthy, supra note 8, at 5, 10, 14, 19; Harm M. Dotinga & Alex G. Oude Elferink, Acoustic Pollution in the Oceans: The Search for Legal Standards, 31 Ocean Dev & Intl.151, 152 (2000). 24 Id.25 UNCLOS, supra note 1, pmbl., 192, 194, 238, 240, 242; Scott, supra note 27, at 300. 26 UNCLOS, supra note 1, art. 240. 27 Id. arts. 136-49, 208, 209, 238, 240. 28 See Agenda 21, supra note 12; CBD, supra note 1, pmbl.; UNCLOS, supra note 1, art. 240. 29 CBD, supra note 1, art. 3; Espoo Convention, supra note 46, art. 2; UNCLOS, supra note 1, art. 192. 30 DARSIWA, supra note 72, art. 25, § 1.

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Risso has not shown that its seismic surveys are the only way for it to safeguard its

national security against an energy shortage. The first prong of necessity requires a

State to prove that its chosen course of action is the “only way” to safeguard an

essential interest.31 Risso has not met this requirement as there is no evidence that it

considered any alternative sources of energy. Furthermore, Risso’s seismic surveys

seriously damage Araquaia’s economic and environmental interests by harming beaked

whales. This harm also impairs the international community’s interest in protecting

global biodiversity.32 Thus, Risso is unable to meet the second requirement for

necessity. Because it fails to meet either requirement, Risso may not invoke necessity

to excuse its violations of international law.

B. Pánfilo Blas is not criminally responsible for the war crime 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 relation to the concrete and direct overall military advantage

anticipated relative to the oil spills.

I. Panfilo Blas did not commit a war crime because not all elements are present.

To be prosecuted for a war crime, five elements must be satisfied. There must be

(1) an act (where “act” can be a number of deplorable offenses set forth in Article 13);

(2) the act must be committed by the perpetrator against a protected person or object;

(3) the act must take place in the context of and be associated with an armed conflict;

(4) a nexus must exist between the act and the armed conflict;33and (5) the perpetrator

must know of the factual circumstances that established the protected status of the

victim, must know of the factual circumstances that established the existence of the

armed conflict, and must have the requisite mens rea for the underlying offense.34

Assuming ex gratia argumenti that Admiral Panfilo Blas should be held criminally 31 Id. art. 25, cmt. ¶ 15. 32 Id. art. 25, cmt. ¶ 15. 33 Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 573 (ICTY Trial Chamber May 7, 1997). [hereinafter Tadic Trial Chamber] [Reproduced in accompanying notebook at Tab 26]

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liable for environmental damage, not all elements of this crime are present in the case

at hand. While the second, third, and fourth elements are showing, the first and fifth

elements are wanting.

a.The oil spills and oil fires did not constitute “intentionally launching an attack in

the knowledge that such attack would cause 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.”

The Rome Statute inserted a provision that allows for the direct prosecution of

environmental war crimes.35 Article 8(2)(b)(iv) of the Statute prohibits: “Intentionally

launching an attack in the knowledge that such an attack will cause..........or

widespread, long‐term and severe damage to the natural environment which would be

clearly in excessive in relation to the concrete and direct overall military advantage

anticipated”.36

However, in order to successfully prosecute an alleged individual perpetrator of

environmental war crimes, the conduct needs to consist out of the following physical

elements. The crime is an attack that results in “widespread, long‐term and severe

damage” to the environment.37 In the case at hand, it cannot be said that the oil spills

and the oil fires brought about by the Republic of Araquaia resulted in “widespread,

long‐term and severe damage” to the environment.

It is noteworthy that each has been clearly and concisely defined by the Committee

of Disarment such that widespread would refer to a geo area of several (200) sq. Km.

This fact and definition alone negates Admirals Blas’s culpability in a sense that the

34 See IHT Statute, supra note 1, art. 13 (setting forth the various attacks which constitute “war crimes”) [Reproduced in accompanying notebook at Tab 14]; See Iraqi Special Tribunal Elements of Crimes, Prepared by Regime Crimes Liaison Office, at http://lawwww.cwru.edu/grotian-moment-blog/documents/IST_Elements.pdf at art. 12(a)(2). [hereinafter Elements of Crimes] (setting forth the requirements for each type of attack). [Reproduced in accompanying notebook at Tab 72] 35 Drumbl, International Human Rights, International Humanitarian Law and Environmental Security: Can the International Criminal Court Bridge the Gaps., ILSA Journal of International & Comparative Law,Vol. 6:305, 2000 p.310.36 77 Ibid supra note 5, article 8 (2)(b)(iv) Rome Statute37 87 Ibid supra note 5, Article 8(2)(b)(iv) RS.

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area affected by the oil slicks was only ambiguously defined as “the same sea area” and

“oil rig surrounding areas”. Suppose that the two elements are satisified, that being long

term and widespread, the third element, severe, is ambiguous. COD defines “severe” as

involving serious or significant disruption or harm to human life, natural and economic

resources or other assets. With this as a definition, Blas’s culpability remains

theoretical at best and non-existent in the least. Blas’s operation stemmed from a need

to defend his country against an impending attack from the enemy State Risso.

Suppose that the oil slicks that resulted into the pollution of Yukule’s shores on seas

did extensive damage, it is not sufficient to meet the requirements as substantiated by

the definition of the element. Suppose such destruction was extensive, nature’s ability to

heal itself naturally negates this element of severity.

b.Admiral Panfilo Blas has no knowledge of the factual circumstances that

established the protected status of the victim, the factual circumstances that

established the existence of the armed conflict, and the requisite mens rea for the

underlying offense is not present.

Another important element of environmental war crimes is its “mens rea”. Any

alleged perpetrator of environmental war crimes only violates the article if he knew

(emphasis added) that the attack would cause widespread, severe and long‐term

damage and such damage would be disproportional to the concrete direct overall

military advantage anticipated.38 This means that, for the Court to successfully

prosecute they have to prove that the accused:

38 Elements of Crimes of the Rome Statute of the International Criminal Court, article.8(2)(b)(iv)(3).

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1. Knows the meaning of widespread, severe and long‐term damage;

2. Knows that his conduct will cause such environmental damage and;

3. knows that the damage will likely be disproportionate to the expected military

advantage.39

In the case at hand, there is no direct evidence indicating that Admiral Panfilo Blas

knew that the attacks would cause “widespread, long-term and severe damage to the

natural environment.” It can be inferred that the reason why Captain Barret ordered to

open the valves of an offshore oil platform that eventually discharged oil into the sea

was because of the Admiral Panfilo Blas’s order to take “all measures possible to stop

the advancement of the Risson forces”. Admiral Panfilo Blas made that order as part of

their defensive measures from the attacks of Risso. Emphasis should be made that

following the post-Nirvana demonstrations and the weakening of Araquaia’s

government, the Risson government decided to recapture Yukule. In fact, a Risson

naval task force set sail for Yukule. Risso also launched an intensive air campaign

against the Araquaian land and naval forces in Yukule, while the Risson navy engaged

Araquaian navy on the seas. Anyone in his position will necessarily take steps in order

to defy the revolting Risson forces. Hence, it can be gleaned that he made an order to

protect the interest of Araquaia but not to cause destruction to the environment.

Ii. Even if the Court finds proof of widespread, long ‐ term and severe damage to

the natural environment, criminal liability will be denied if such damage to the

environment is “not clearly excessive in the relation to the concrete and direct

overall military advantage anticipated”

Assuming ex gratia argumenti that the oil spills and oil fires brought about by the

Republic of Araquaia resulted to a “widespread, long‐term and severe damage to the

natural environment, Panfilo Blas’s criminal liability should be denied because such

39 Ryan Gilman, Expanding Environmental Justice after War: The Need for Universal Jurisdiction overEnvironmental War Crimes, Colorado Journal Int’l Envtl Law and Policy, Volume 22:3, 2011, p. 455.

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damage to the environment is “not clearly excessive in the relation to the concrete and

direct overall military advantage anticipated.”

The ICC hereby introduced this proportionality concept that requires the Court to

weigh the inflicted environmental damage of the attack against the foreseen military

advantage, thereby showing the need for destruction.40 As a result of this test, not all

inflicted environmental damage by means of warfare is prohibited. The article only

covers disproportionate damage. Proportionate damage to environment does not fall

under the scope of Article 8(2)(b)(iv) of the Rome Statute.

In the case at hand, the environmental damage brought about by the acts of the

Republic of Araquaia was just proportionate in relation to the concrete and direct overall

military advantage it anticipated. First, the Rome Statute only required military

advantage and not military necessity. To follow Drumbl, the burden of proof of military

advantage is substantially lower than that of military necessity.41 The military advantage

sought by Admiral Panfilo Blas was to prevent the advancement of the Risson forces by

making its entry through the sea difficult if not impossible by discharging the oil and

burning the oil rigs. Second, these advantages ordered by him was realistic, tangible

and sufficiently linked to the attack. Third, the damage caused was not clearly

excessive. It must be noted that that the Risson forces managed to occupy the southern

parts of Yukule and rapidly started to make their way towards the north. The intensity of

military advantage, thus the damage it has done to the environment because of the oil

spills and oil fires, that it sought was proportionate the intensity of the foreseeable threat

due to the advancement of the Risson forces.

Finally, the proportionality concept as introduced is heavily weighed in favour of

finding the attack proportional.42 Hence, the Republic of Risso has to prove otherwise.

40 Ibid supra note 29. M.N. Schmitt., p.283.41 Supra note 75. M.Drumbl, p. 32042 Heller and Lawrence, The limits of article 8(2)(b)(iv), p. 17

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CONCLUSION/PRAYER

Applicant, the State of Araquaia, respectfully prays that the judgment be rendered

that:

1. The acts made by RECO violate the principles of international law and are

attributable to the Republic of Risso.

2. Admiral Panfilo Blas, Chairman of Crisis Military Commission of the Republic of

Araguaia is not criminally responsible for committing the war crime.

Respectfully submitted,

AGENTS OF APPLICANT

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