TABLE OF CONTENTS

INDEX OF AUTHORITIES III

SUMMARY OF FACTS V

ISSUES PRESENTED IX

SUMMARY OF ARGUMENTS X

DISCUSSION 1

RISSO DID NOT VIOLATE INTERNATIONAL LAW WITH RESPECT TO ITS SEISMIC SURVEYS

1

THE SEISMIC SURVEYS CONDUCTED BY RECO DO NOT CONSTITUTE AS OFFSHORE HYDROCARBON PRODUCTION AS MENTIONED IN APPENDIX I OF THE ESPOO CONVENTION 1

THE SEISMIC SURVEYS CONDUCTED BY RECO ARE EXPLORATION ACTIVITIES 1

THE SECOND AMENDMENT OF APPENDIX I OF THE ESPOO CONVENTION BINDS ARAGUAIA 2

RISSO IS NOT REQUIRED TO COMPLY WITH ARTICLE 2, PARAGRAPH 5 OF THE ESPOO CONVENTION 3

THE SEISMIC SURVEYS ARE NOT LIKELY TO HAVE A SIGNIFICANT ADVERSE TRANSBOUNDARY IMPACT FOR ARTICLE 2, PARAGRAPH 5 OF THE ESPOO CONVENTION TO APPLY 3

RISSO IS NOT OBLIGATED TO CONDUCT AN ENVIRONMENTAL IMPACT ASSESSMENT UNDER THE PROVISIONS OF THE UNCLOS AND THE CBD 5

THE PROVISIONS IN UNCLOS AND CBD ARE MERELY DISCRETIONARY 5

THE ACTIVITIES OF RECO DID NOT RESULT TO TRANSBOUNDARY HARM 6

ADMIRAL BLAS IS LIABLE FOR THE WAR CRIME OF CAUSING WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT UNDER ARTICLE 8(2)(B)(IV) AND ARTICLE 25(3)(A) 8

REQUIRED ELEMENTS OF CRIME UNDER ARTICLE 8(2)(B)(IV) WERE SATISFIED 9

ELEMENT 1 WAS SATISFIED. ADMIRAL BLAS ORDERED TO LAUNCH AN ATTACK 9

i

ELEMENTS 2 AND 3 WERE SATISFIED. THE PERPETRATOR KNEW THAT SUCH ATTACK WOULD CAUSE WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT 9

ELEMENTS 4 AND 5 WERE SATISFIED. THE CONDUCT TOOK PLACE IN THE CONTEXT OF AND WAS ASSOCIATED WITH AN INTERNATIONL ARMED CONFLICT AND THE PERPETRATOR WAS AWARE OF THE FACTUAL CIRCUMSTANCES THAT ESTABLISHED THE EXISTENCE OF AN ARMED CONFLICT 10

ADMIRAL BLAS HAS INDIVIDUAL CRIMINAL LIABILITY 11

ADMIRAL BLAS BEARS CRIMINAL LIABILITY ON THE BASIS OF SUPERIOR RESPONSIBILITY

12

CONCLUSION 14

ii

INDEX OF AUTHORITIES

Treaties and Conventions

Additional Protocol I (API), (1977). 9,10

Convention on Biological Diversity (1992). 5

Convention on Environmental Impact Assessment in a Transboundary

Context, February 25, 1991. 1,2,3

Convention on the Law of the Sea, December 10, 1982. 4,5

Geneva Conventions, (1949). 11

Rome Statute, (1998). 10,11

Second Amendment to the Espoo Convention, June 4, 2004. 2

Updated Statute of the International Criminal Tribunal

For the Former Yugoslavia 11

Vienna Convention on the Law of Treaties, May 23, 1969. 2,3

Judicial and Arbitral Decisions

Prosecutor v. Bemba, Pre-Trial Chamber II,

ICC-01/05-01/08 (15June2009) 12

Prosecutor v. Popović et al, ICTY TC II, 10 June 2010

(case no. IT-05-88-) 12,13

Prosecutor v. Thomas Lubanga Dyilo, Decision, ICC-01/04-01/06-803 11

UN Documents

iii

Consideration of Prevention of Transboundary Harm from Hazardous

Activities and Allocation of Loss in the Case of Such Harm, (2008). 6,7

Responsibility of States for Internationally Wrongful Acts, (2002). 8

Books, Treatises, Digests and Restatements

Sands, et. al., Principles of International Environmental Law, (2012). 4

Sheriff and Geldart, Exploration Seismology, (1995). 1

Streever, et. al., Diversity of Cetaceans as Tool in Monitoring

Environmental Impact of Seismic Surveys, (2007) 4

Thjoerneluid, State Necessity as an Exemption from State

Responsibility, (2008). 7

Weilgart, et. al., A review of the Impacts of Seismic Airgun

Surveys on Marine Life, (2013). 4

iv

SUMMARY OF FACTS

I.

Risso, a highly industrialized country, borders the Middle Sea together

with the Kingdom of Inia and The Republic of Araguaia. Araguaia, on the other

hand, was a military government led by General Dani Moisés and Admiral Panfilo

Blas between 2003 and 2010 with General Moisés acting as the country’s

President. The Yukule Archipelago, the largest island of Yukon and the only one

that is inhabited, was under Risson control until 2008. Yukule is home to large

bird populations and massive groups of coral reefs close to its shores. They are

also known for its large oil reserves that are the main source of revenue from the

Yukule area. Since the 1980s, Araguia has been contesting Risson sovereignty

over the Yukule based on the proximity of Yukule to Araguaia’s coast and the

unlawful annexation of the Yukule after the Second World War.

II.

In 2006, Risso began to experience energy crisis prompting Risso to give

Risso Electric Company (RECO) permission to begin exploration for hydrocarbon

reserves within Yukule using 20-gun arrays in 2007. On the 28th of August 2008,

the Embassy of Araguaia sent a diplomatic note to the Government of Risso

concerning the effect of noise pollution from the RECO’s 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 Government of the Republic of Risso replied stating that the marine

seismic surveys undertaken are not activities listed in Appendix I of the Espoo

Convention. According the Risso, marine seismic surveys are not “hydrocarbon

production” but are merely exploration activities. Moreover, Risso argued that

v

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.

On January 15, 2009, a mass stranding and eventual death of short-

beaked dolphins and one pilot whale occurred in the territory of Risso. The The

Government of the Republic of Risso asserts that there is no specific evidence

that establishes that RECO’s marine seismic surveys caused the strandings.

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

Risso’s right to explore and exploit its natural resources. Furthermore, 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.

III.

In 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. In one incident, a boat that

entered the maritime control zone was fired upon causing the death of a

fisherman. Risso Daily News reported the incident and accused Araguaia patrol

of “reckless use of force” against a civilian. By the end of 2009, 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.

vi

IV.

On 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 a commando of marines to deal

with the potential threat and was named operation “Maelstrom”, led by

Commander Tagle. Ignoring repeated warnings that their entry is unauthorized,

Nirvana proceeded headland, prompting Commander Tagle to issue a final

warning via radio that all available measures would be taken to prevent unlawful

entry. Araguaia naval patrol boars fired warning shots towards Nirvana, which

prompted them to turn around to avoid an armed encounter. In a press

conference, the Risson President denounced Operation Maelstrom as serious

violation of international humanitarian law for preventing humanitarian aid.

V.

On 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”. On September 24 2010, Captain Barret ordered to

open the valves of an offshore oil platform (oil rig) while Araguaia’s ships moved

eastward towards the Araguaian coast. The following day, Admiral Blas

commanded Captain Barret to take “all mesures possible to stop the

advancement of the Risson forces”. On the same day, large oil storage tanks on

the oil rigs burst into huge flames.

vii

In January 2011, the United Nations Environment Programme (UNEP)

pointed out that the oil spills and fires could have major effect on the reef

habitation offshore Yukule. 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.

viii

ISSUES PRESENTED

I. Did Risso violate International Law with respect to its seismic surveys?

A. Whether or not the seismic surveys conducted by RECO constitute

as offshore hydrocarbon production as mentioned in Appendix III of

the Espoo Convention requiring an Environmental Impact

Assessment.

B. Whether or not Risso is required to comply with Article 2, paragraph

5 of the Espoo Convention.

C. Whether or not there was a violation of the express provision in

Article 206 of the UNCLOS and CBD Article 14 when RECO failed

to conduct an EIA prior to its seismic surveys.

D. Whether or not the activities of RECO resulted to transboundary

harm.

II. Is Admiral Blas liable for the war crime of causing widespread, long-

term and severe damage to the natural environment under Article 8(2)

(b)(iv) and Article 25(3)(a)?

A. Whether or not the required elements of the crime under Article

8(2)(b)(iv) were satisfied.

B. Whether or not Admiral Blas has individual criminal liability.

ix

SUMMARY OF ARGUMENTS

RECO has acted consistently with international law. RECO has not

violated any of the provision in the Espoo Convention, UNCLOS and CBD for

failure to prepare an EIA prior to the performance of the Marine Seismic Surveys.

RECO’s activities are merely exploration and therefore, do not require an EIA as

provided under the Espoo Convention Appendices I and III. Moreover, under

treaty and customary law, RECO’s action does not cause significant adverse

transboundary harm and merely exercised its sovereign right to exploit its natural

resources as their actions are necessary to address Risso’s energy needs and

economic survival.

The elements of the crime under article 8(2)(b)(iv) were fulfilled because it

was Admiral Blas who ordered to launch the attack, he knew that such attack

would cause widespread, long-term and severed damage to the natural

environment, the conduct took place in the context of and was associated with an

international armed conflict, and the perpetrator was aware of factual

circumstances that established the existence of an armed conflict. Admiral Blas

has individual criminal liability.

x

DISCUSSION

I. RISSO DID NOT VIOLATE INTERNATIONAL LAW WITH RESPECT TO ITS

SEISMIC SURVEYS.

A. Seismic surveys conducted by RECO do not constitute as offshore

hydrocarbon production as mentioned in Appendix I of the Espoo

Convention.

1. The Seismic Surveys conducted by RECO are exploration activities.

Offshore hydrocarbon production is listed in the Espoo Convention

Appendix I as one of the activities requiring an Environmental Impact

Assessment.1 The marine seismic surveys undertaken by RECO are mere

exploration activities that do not fall under Appendix I of the Espoo Convention.

Seismic surveys use surface-induced seismic pulses to image subsurface

information.2 Basically, a seismic wave is generated underneath the earth’s

surface, and then picked up by sensors called “geophones” as the wave bounce

off subsurface formations – that is, layers of rock beneath the surface.3 It is a way

to probe beneath the surface to see underlying features that make up the

underground structure of a prospect.4 Such features can give companies a more

astute indication if a prospect contains hydrocarbons.5

The offshore hydrocarbon production listed under Appendix I of the Espoo

Convention,6 however, implies that the likelihood of the hydrocarbons being

1 Convention on Environmental Impact Assessment in a Transboundary Context, February 5, 1991, Article 2(2) [Espoo].2 Sheriff and Geldart, Exploration Seismology (1995).3 Ibid.4 Ibid.5 Ibid.6 Espoo, Appendix I, para.15.

1

present has already been quantified. Meaning, at this point, the operation of

boring a hole in the earth’s crust is conducted for the production of hydrocarbons.

Hydrocarbon explorations, such as the one conducted by RECO,7 are only

limited to finding possible sources for hydrocarbon extraction. In other words, it is

an activity done prior to extraction of hydrocarbon in order to assess the potential

of ever finding hydrocarbon sources in the area. To date, the surveys conducted

by Risso have not led to the extraction of petroleum or natural gas.8 Where no

amount is extracted, it cannot be considered as offshore hydrocarbon production

under Appendix I.

2. The Second Amendment of Appendix I of the Espoo Convention binds

Araguaia.

In the second amendment of Appendix I, Espoo further defines “offshore

hydrocarbon production” as the extraction of petroleum and natural gas for

commercial purposes where the amount extracted exceeds 500 metric tons/day

in the case of petroleum and 500,000 cubic meters/day in the case of gas.”9 The

seismic surveys undertaken by RECO, therefore, do not constitute offshore

hydrocarbon production since such activities have not led to any extraction of

petroleum or natural gas.10

The Republic of Araguaia is bound by the Second Amendment of

Appendix I of the Espoo Convention because of their act of ratifying it.11 Araguaia

has consented to be bound by the Second Amendment, pending its entry into

force,12 and is therefore subjected to certain limitations of freedom of action.13

7 Facts, para.6.8 Facts, para.9.9 Second Amendment to the Espoo Convention, June 4, 2004, Appendix I, para.15.10 Facts, para.9.11 Vienna Convention on the Law of Treaties, May 23, 1969, Article 11 and 39. [VCLT]; Facts, para.9.12 Espoo, Article 14(4).13 VCLT, Article 18.

2

Araguaia, therefore, should adhere to the clarification of the term “Offshore

hydrocarbon production” as provided by the amendment of Appendix I of the

Epsoo Convention.

B. Risso is not required to comply with Article 2, Paragraph 5 of the Espoo

Convention

1. The seismic surveys are not likely to have a significant adverse transboundary

impact for Article 2, paragraph 5 of the Espoo Convention to apply.

Appendix III of the Espoo Convention provides for criteria in determining

whether a proposed activity is likely to have a significant adverse transboundary

impact:14 First, the size of the proposed activities must be large for the type of

undertaking.15 Second, the proposed activities must be in or close to an area of

special environmental sensitivity or importance or where the characteristics of

proposed development would be likely to have significant effects on the

population.16 Lastly, the proposed activities must have a particularly complex and

potentially adverse effect on humans or valued species or organisms.17 RECO’s

activities did not fall under any of the foregoing criteria, and is therefore not

required to undertake an EIA.

For the first criteria, RECO conducted the seismic surveys by two vessels

that are relatively modest in size.18 Considering the type and the size of vessel

used by RECO, it cannot, therefore, be concluded that the seismic surveys are

large activities that are likely to cause transboundary impact.

Appendix III also considers the location of the proposed activity for it to be

considered as likely to cause a significant adverse transboundary impact.

14 Espoo, Appendix III, para.1.15 Espoo, Appendix III, para.1a.16 Espoo, Appendix III, para.1b.17 Espoo, Appendix III, para.1c.18 Facts, para.11.

3

RECO’s seismic surveys were conducted within Yukule,19 which is located 200

nautical miles away from Risso and which is under Risson control until 2008.20

Therefore, since Risso conducted the marine seismic surveys entirely within the

Republic of Risso’s exclusive economic zone,21 they have a sovereign rights to

explore and exploit, conserve and mange the natural resources, whether living or

non-living, and with regard to other activities for the economic exploitation and

exploration of the zone, such as the production of energy from the water,

currents and winds.22 In accordance with United Nations Charter and

International Law, States have the sovereign right to exploit natural resources

free from external interference over their exploitation.23

Finally, the last criterion was not met because there is no specific

evidence that marine seismic surveys will cause the stranding of the beaked

whales.24 It must be noted that different factors must be considered in

determining whether an individual animal is affected in such activities such as the

frequency and decibel level of the sound, the distance between the sound and

the animal, the sensitivity and frequency range of the animal and whether the

sound is impulsive or continuous.25 The effect on animals of a particular type of

activity varies and the effects of the noise emitted by the airguns used in a

seismic survey also vary on different species of cetaceans and is fraught with

difficulty.26 For instance, a harbor of porpoise exposed to airgun pulses was

found to be more sensitive than any other cetacean.27 Also, the noise level

required to cause hearing loss in whales is still very uncertain, especially for

19 Facts, para.6.20 Facts, para.3.21 Facts, para.9.22 United Nations Convention on the Law of the Sea, December 20, 1982, Article. 56. [UNCLOS]23 Sands, et. al, Principles of International Environmental Law (2012).24 Facts, para.13 and 14.25 Streever, et. al., Diversity of Cetaceans as Tool in Monitoring Environmental Impact of Seismic Surveys (2007).26 Weilgart, et. al., A review of the Impacts of Seismic Airgun Surveys on Marine Life (2013).27 Ibid.

4

seismic airguns, as they are so empirical measurements.28 Between-individual

variability, the population’s average sensitivity, and the validity of extrapolating

between species, particularly between captive small dolphins and porpoises to

free-ranging large baleen whales are all unknown.29 The conclusions, therefore,

of the effects of the airguns on a particular marine species should not be applied

to another type of marine animal for there is a variation in the sensitivity among

marine animals.

Following the foregoing facts, such seismic surveys are not likely to cause

significant adverse transboundary impact. Risso is therefore not obligated to

conduct an EIA.

C. Risso is not obligated to conduct an EIA under the provisions of the

UNCLOS and the CBD.

1. The provisions in UNCLOS and CBD are merely discretionary.

Article 206 of the UNCLOS provides that when States have reasonable

grounds to believe that planned activities may cause substantial pollution or

significant and harmful changes to the marine environment, they shall, “as far as

practicable”, assess the potential effects of such activities on the marine

environment.30 Meanwhile, Article 14 of the CBD provides that each Contracting

Party shall “as far as possible and as appropriate,” introduce environmental

impact assessment on its proposed projects that are likely to have significant

adverse effects on biological diversity.31

The provisions in UNCLOS and CBD cannot be a source of international

obligation because the terms, “as far as possible”, “as appropriate,” and “as far

as practicable,” suggest discretion by the States concerned. Furthermore, the

provision does not provide pertinent details of the process of conducting the

28 Ibid.29 Ibid.30 UNCLOS, Article. 206. 31 Convention on Biological Diversity, Article 14, (1992).

5

assessment such as the State that should be responsible for assessing the

impacts if the activities fall under the concurrent jurisdiction of several States, the

factors considered in evaluating the impacts of proposed activities and the

applicable international standards for conducting environmental impact

assessments. Since the provision is not mandatory and is merely discretionary in

character, then Risso committed no violation of the provisions under the

UNCLOS and CBD.

D. The activities of RECO did not result to transboundary harm.

There is no clear and direct evidence showing that the seismic surveys

conducted by RECO caused the stranding and the eventual deaths of the

dolphins and whales.32 The link between the seismic surveys and the mass

stranding is merely a possibility and not an absolute certainty.33 Araguaia also

failed to establish that the stranded beaked whales impaired the viability of the

ecotourism industry’s whale-watching activities in Araguaia. Moreover, since the

short-beaked dolphins and the pilot whale are migratory animals, they do not

belong to a specific State, thus, it cannot be said that the death of the dolphins

and whales impaired the natural resources of Araguaia.

Even assuming that there was harm, it is not transboundary. To be

considered transboundary, the harm must have been caused in the territory of a

State other that the State of origin.34 It must be noted in this case that the

cetaceans were stranded on Risso’s shoreline, approximately twenty kilometers

south of the border of the Republic of Araguaia.35 Also, the marine seismic

surveys are likewise located within Risso’s territory.36 Hence, even if there was

harm, it is not transboundary as both the harm and the activity alleged to cause

the harm occurred in Risso.

32 Facts, para.15.33 Facts, para.13.34 Consideration of Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in Case of Such Harm, Article 2(c), (2008).35 Facts, para.13.36 Facts, para.9.

6

Transboundary harm must be due to the physical consequences of

activities.37 In this case, Risso is experiencing energy crisis which was further

aggravated by the global financial crisis leading to a decline in demand for

Risso’s commodities and a significant increase in the unemployment rate.38 As a

solution, it granted RECO the permission to conduct hydrocarbon exploration in

the hope of finding alternative sources of energy that could provide an impetus to

revive its economy.39 Thus, RECO’s activities only relate to Risso’s economic

policy and are excluded from the scope of transboundary harm.

Lastly, even assuming that there may be a violation of international law,

such action is excused under the Doctrine of Necessity, which exempts the State

from state responsibility.40 There is an international wrongful act of a state when

a conduct is attributable to a state under international law and when the conduct

constitutes a breach of an international obligation.41 Two basic conditions have to

be fulfilled in order to justify a state’s international responsibility: a breach of an

international obligation and the attribution of the act to the state.42 According to

the International Law Commission, necessity in Article 25 of the Draft Articles

may only be invoked on exceptional instances where such act done is the only

way for the State to safeguard an essential interest against a grave and imminent

peril and when the acts done do not seriously impair an essential interest of the

State or States towards which the obligation exists, or of the international

community as a whole.43 The conditions abovementioned are fulfilled in this case.

37 Consideration of Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in Case of Such Harm, Article 1, (2008).38 Facts, para.6.39Facts, para.6(2).40 Thjoernelund, State Necessity as an Exemption from State Responsibility (2008).41 Ibid.42 Ibid.43 Responsibility of States for Internationally Wrongful Acts, Article 1(a) and 1(b) (2001).

7

Here, in the light of the unfolding crisis, Risso’s recent industrialized

economy may be considered to be in a precarious state.44 The sustainability of

this economic growth is dependent on Risso’s commitment on energy

independence and therefore, any interference of the activities conducted to Risso

is considered prejudicial to its economic survival and national security. It should

also be noted that in 2006, Risso was experiencing economic crisis45 related to a

decrease of Risso’s decrease in demand in the production and demand of their

commodities46 as evidenced by the increase of the unemployment rate to 25%47

and further aggravated by the 2008 global financial crisis.48

II. ADMIRAL 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 OVER-ALL

MILITARY ADVANTAGE ANTICIPATED RELATIVE TO OIL SPILLS UNDER

ARTICLE 8 (2) (B) (IV), ARTICLE 25 (3) (A) AND ARTICLE 7 (3)

A. Required Elements of Crime under Article 8 (2) (b) (iv) were satisfied.

Elements of Crimes under Article 8(2) (b) (iv) requires the establishment of

five elements which were fulfilled.49

1. Element 1 was satisfied. Admiral Blas ordered to launch an attack.

44 Facts, para.1.45 Facts, para.6.46 Ibid.47 Ibid.48 Ibid.49 International Criminal Court, Elements of Crime

8

Admiral Blas established an operation named “Maelstrom” composed of

60 marine commandos to deal with the potential threat. 50This was in response to

the information that the Free Yukule Movement chartered an Inia-registered

merchant vessel, Nirvana, to deliver “humanitarian packages” to civilians

stranded in Yukule. 51 When it was 24 nautical miles from the maritime control

zone, Araguaia naval patrol boats fired warning shots towards Nirvana. Nirvana

turned around to avoid an armed encounter.52

Following the post-Nirvana demonstrations and the weakening of Araguaia’s

government, the Risson government decided that time had come to recapture

Yukule.53 Rear Admiral Freeman, reported to Admiral Blas that he was unable to

stop the advancement of the Risson Navy. Admiral Blas told Freedman to “resort

to all resources available to stall the enemy”.54

2. Elements 2 and 3 were satisfied. The perpetrator knew that such attack would

cause widespread, long-term and severe damage to the natural environment.

It is prohibited to employ methods or means of warfare which are

intended, or may be expected to cause widespread, long-term and severe

damage to the natural environment.55 Following the order of Admiral Blas to

“resort to all resources available to stall the enemy”, Captain Barret, after

consulting Rear Admiral Freeman, ordered to open the valves of an offshore oil

platform (oil rig) operated by a Risso-registered company. Also, three Aragua

registered oil tankers started to discharge oil into the same sea area.56

Provided that care shall be taken in warfare to protect the natural

environment against widespread, long-term and severe damage, this shall

include prohibition of the use of methods or means of warfare which are intended

or may be expected to cause such damage to the natural environment and

50 Facts, para.27.51 Facts, para.26.52 Facts, para.28.53 Facts, para.29.54 Facts, para.30.55 Additional Protocol I (API), Art 35 (3)56 Facts, para.31.

9

thereby to prejudice the health or survival of the population.57 Following the order

of Admiral Blas to take “all measures possible to stop the advancement of the

Risson forces”, large oil storage tanks on the oil rig burst into huge fires.58 The oil

rig and the surrounding areas were awash in smoke, soot and ash. Also a large

amount of the oil found its way into the sea. 59 It is undisputable that knowledge

existed on the possible widespread, long-term and severe harm could be

affected to the natural environment.

Environmental damage should be widespread, long-term and severe.60 The

United Nations Environment Programme (UNEP) pointed out that the oil spills

could have a major effect on the massive reef habitation offshore Yukule.

According to UNEP, certain habitations of coral reefs were extremely susceptible

to hydro carbon pollution. Thousands of birds in the region were found dead.

Marine turtles, which use the Yukule Archipelago as nesting sites, were also

endangered.61

3. Elements 4 and 5 were satisfied. The conduct took place in the context of and

was associated with an international armed conflict and the perpetrator was

aware of factual circumstances that established the existence of an armed

conflict.

There is an existence of an armed conflict, international in nature “if it

takes place between two or more States.” This also “extends to the partial or total

occupation of the territory of another State.”62 As situated, this is an international

armed conflict between the Republic of Araguaia and Republic of Risso.

57 Additional Protocol I (API), Art 55 (1)58 Facts, para.33.59 Facts, para.34.60 Rome Statute, Art. 8 (2) (b) (iv) and Additional Protocol I, Art. 35 (3).61 Facts, para.35.62 Prosecutor v. Thomas Lubanga Dyilo, Decision, ICC-01/04-01/06-803, para. 209.

10

In addition, an international armed conflict exist to all cases of declared war or of

any other armed conflict which may arise between two or more of the High

Contracting Parties, even if the state of war is not recognized by one of them.63

There been a heated conflict asserting claims to the Yukule, Araguaia has been

contesting Risson sovereignty over the Yukule,64 thus Admiral Blas is aware that

there was an existence of an armed conflict.

B. Admiral Blas has individual criminal liability.

A person shall be criminally responsible and liable for punishment for a

crime within the jurisdiction of the Court if that person commits such a crime,

whether as an individual, jointly with another or through another person,

regardless of whether that other person is criminally responsible.65 The said

attacks causing widespread, long-term and severe damage to the natural

environment transpired in consequence to the order of Admiral Blas to “resort to

all resources available to stall the enemy.”66

Under Article 7(3)67 of the Statute, a superior may incur individual criminal

responsibility for failing to take the necessary and reasonable measures either to

prevent a subordinate from committing a crime within the jurisdiction of the

Tribunal, or to punish a subordinate for having committed a crime, if the following

elements exist: (1) a superior-subordinate relationship; (2) the superior knew or

had reason to know that a criminal act was about to be, was being or had been

committed, and (3) failure to take necessary and reasonable measures to

prevent or punish the conduct in question.

This form of responsibility was well established in customary international

law at the time of the events charged in the Indictment. A superior bears

63 Four Geneva Conventions, Common Art. 264 Facts, para.5.65 Rome Statute, Art 25 (3) (a)66 Ibid.67 Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, Article 7 (3)

11

responsibility under Article 7(3) for failing to discharge a duty required by

international law, rather than for participating in the crime.68

The Appeals Chamber has held that “superior responsibility under Article

7(3) of the Statute encompasses all forms of criminal conduct by subordinates,”

including “all other modes of participation under Article 7(1).” Hence, a superior

may bear superior responsibility for his failure to prevent or punish the physical

commission, including through participation in a JCE, planning, instigation,

ordering, or aiding and abetting of crimes by a subordinate.69

The failure to prevent and the failure to punish are distinct legal obligations as the

failure to prevent concerns future crimes of subordinates and the failure to punish

concerns past crimes of subordinates. A superior may therefore be convicted for

either or both failure to prevent and failure to punish.70

1. Admiral Blas bears criminal liability on the basis of superior responsibility.

Provided in the Bemba case71, five elements are required for command

responsibility: 1) the suspect must be either a military commander or a person

effectively acting as such; 2) the suspect must have effective command and

control, or effective authority and control over the forces who committed the

crime(s); 3) the crime(s) committed by the forces (subordinates) resulted from the

suspect’s failure to exercise control properly over them; 4) the suspect either

knew or, owing to the circumstances at the time, should have known that the

forces were committing or about to commit the crime(s); 5) the suspect failed to

take the necessary and reasonable measures within his power to prevent or

repress the commission of such crime(s) or failed to submit the matter to the

competent authorities for investigation and prosecution.

68 Prosecutor v. Popović et al, ICTY TC II, 10 June 2010 (case no. IT-05-88-) para.103469 Prosecutor v. Popović et al, ICTY TC II, 10 June 2010 (case no. IT-05-88-) para.103570 Prosecutor v. Popović et al, ICTY TC II, 10 June 2010 (case no. IT-05-88-) para.103671 Prosecutor v. Bemba, Pre-Trial Chamber II, ICC-01/05-01/08 (15June2009) para.407.

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In the present case the five elements were satisfied. Araguaia was ruled

by a military government led by General Dani Moisés and Admiral Pánfilo Blas,

with General Moisés acting as the country’s President. During this period,

Admiral Blas also acted as Commander-in-chief of the Armed Forces.72 Evident

in his position in the Armed Forces, Blas has the full capacity to take command

and control towards its subordinates. This has been apparent on his direct

instruction “to resort all means to stall the enemy” which was strictly adhered.73

The said order of Admiral Blas leading to the widespread, long-term and

severe damage to the natural environment which would be clearly excessive in

relation to the concrete and direct over-all military advantage was in relation to

his command showing his failure to exercise control. Blas was aware of the

previous opening of the oil rigs which was then followed with large oil storage

tanks, still no command control coming from his end.74

A superior-subordinate relationship exists where a superior has “effective

control” over the subordinate in question—that is, a material ability to prevent or

punish the subordinate’s criminal conduct. This standard applies to any superior,

whether military or civilian.75

Indisputably, Admiral Blas is completely knowledgeable and aware of the

forgoing circumstances still he failed to take the necessary and reasonable

measures within his power to prevent or repress the commission of such crime.

72 Facts, para.2.73 Ibid.74 Ibid.75 Prosecutor v. Popović et al, ICTY TC II, 10 June 2010 (case no. IT-05-88-) para.1037

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CONCLUSION

The Respondents respectfully requests this Honorable Court to adjudge and

declare that:

1. Risso did not violate international law with respect to the seismic surveys;

and

2. Admiral 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.

Respectfully submitted,

AGENTS OF RESPONDENT

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