2019 MULSS IHL Moot Workshop

1. 2019 MULSS IHL MootWorkshop Caitlin Setter ihlmoot@mulss.com.au 0413 929 175 Stephanie Lowe ihlmoot@mulss.com.au 0411 026 864

2. ADMIN • Please join the 2019 MULSS IHL Moot Facebook Page • Round 1 • Each team is required to prepare submissions for both Prosecution and Defence. • Submissions must be emailed to ihlmoot@mulss.com.au 24 hours before your moot. Late submissions will be penalised.

3. IMPORTANT DATES • The highest scoring teams will progress to the finals. • This means it is still possible to progress to the finals if you lose in the preliminary rounds.

4. INTERNATIONAL HUMANITARIAN LAW • A set of rules which seek to limit the effects of armed conflict on people and objects • Protects certain categories of people and objects • Civilians, the wounded, sick, prisoners of war, etc. • Hospitals, ambulances, pieces of cultural property, etc. • Infrastructure necessary for survival of the civilian population (eg. drinking water supplies) • Restricts the methods and means of warfare • The weapons or methods must be able to distinguishbetween combatants and non-combatants • The weapons or methods must not cause superfluous injury or unnecessary suffering • The weapons or methods must not cause widespread, severe, and long-term damage to the environment

5. APPLICATION OF IHL • IHL applies only during armed conflict • Once a conflict has begun, IHL applies equally to all sides • Regardless of the reasons for the conflict, or who started the fighting • All parties to an armed conflict are bound to comply

6. INTERNATIONAL ARMED CONFLICT (IAC) NON-INTERNATIONAL ARMED CONFLICT (NIAC) A • Between two states • IHL applicable from the first resort to violence between two states • Between a State and an armed group; or • Between two armed groups A B non-State armed group non-State armed group non-State armed group

7. SOURCES OF IHL • International treaties • Written agreements between States • Customary law • Rules which develop over time due to consistent State practice + the belief that the practice is legally required (opinio juris) • A word of caution: customary IHL, including the ICRC Commentary on customary IHL, is a valuable resource however it is important to recognise that it is not hard law, therefore not authoritative.

9. IV PROTECTION OF CIVILIANS I WOUNDED & SICK ON BATTLEFIELD II WOUNDED, SICK & SHIPWRECKED AT SEA III PRISONERS OF WAR +I INTERNATIONAL ARMED CONFLICT +II NON-INT’L ARMED CONFLICT and other treaties

10. THE STATUTE FOR THE INTERNATIONAL TRIBUNAL OF CAPULETA AND MANTAGUIA • The charges have been brought under the Statute • The Statute is the basis of the charges • Do not try to charge the defendants under a different instrument such as the Rome Statute • However, as seen in the problem, the Statute makes violations of other instruments punishable • Geneva Conventions of 1949 • Additional Protocols I & II to the Geneva Conventions • Accordingly, while your submissions will be structured around the Statute, you should rely upon these sources (and others) to contextualise your arguments

11. THE ESCALUS INDICTMENT • Inhumane treatment; willfully causing great suffering or serious injury to body and health. • Consider: • Does the International Tribunal have jurisdiction to hear the matter? • Was there an armed conflict? • If there is no armed conflict, IHL will not apply. • This is a more complex question than it first appears. • If so, did Escalus infringe a rule of IHL? • Does the alleged crime have anything to do with the fighting? • See sources of IHL • If so, does Commander Escalus incur criminal responsibility for the alleged crimes?

12. WAS THERE AN ARMED CONFLICT? • Three relevant outcomes: • Not an armed conflict • A non-international armed conflict (NIAC) • An international armed conflict (IAC) • Different law will apply depending on whether it is an NIAC or an IAC • Applying the correct statute / provision is essential • Questions to ask yourself: • What was the intensity and duration of the fighting? • What degree of organisation did the parties show? • What avenues are there for this to be called an IAC?

13. COMMAND RESPONSIBILITY • Refers to the responsibility of military commanders for war crimes committed by their subordinates. • Questions to consider: • What role did Escalus play? • How much control did Escalus have over his subordinates? • Did he authorise the conduct of his subordinates? If not, did he condone it? • Did he take any measures to prevent the crime? • Did he take steps to punish his subordinates?

14. THE ABRAHAM INDICTMENT • Intentionally launching an attack, with knowledge it will cause incidental loss of life or injury to civilians; excessive in relation to the military advantage anticipated. • Consider: • Did Abraham infringe a rule of IHL? • Does the alleged crime have anything to do with the fighting? • See sources of IHL • Does Colonel Abraham incur individual criminal responsibility for the alleged crimes?

15. INDIVIDUAL CRIMINAL RESPONSIBILITY • Where an individual is personally liable for war crimes. • Questions to consider: • What was the extent of Abraham’s involvement in the order? • What did Abraham know/not know? • What role did civilians play? • Was the Amarga factory a legitimate target?

16. MY BRAIN IS CONFUSED, WHERE CAN I LEARN MORE????

17. PREPARATION • See MULSS website for resources • Sample written submissions • IHL moot guidebook • Judge’s scoring sheet • See the indicative case list noted in the moot problem

19. DURING THE MOOT • Business wear. • Each speaker will have 10 minutes. • You will be responsible for time-keeping. • You may request a brief time extension if necessary. • Refer to paragraph numbers when citing facts from the problem • Don’t interrupt your judge!

20. GOOD LUCK!