THE 2015 PHILIP C.

JESSUP INTERNATIONAL LAW

MOOT COURT COMPETITION

CASE CONCERNING THE FROST FILES

BETWEEN

THE STATE OF AMESTONIA

(APPLICANT)
AND

THE FEDERAL REPUBLIC OF RIESLAND

(RESPONDENT)

FIRST TERM 2015

On Submission to the International Court of Justice

The Peace Palace, The Hague, The Netherlands

MEMORIAL FOR THE APPLICANT

QUESTION PRESENTED

I.

II.

Whether the electronic surveillance programs of Reisland violate international law.

Whether the documents published on the website of The Ames Post are admissible to
the court.

III.

Whether the expropriation of the VoR property and arrest of its employees are
consistent with international law.

IV.

Whether the detention of Joseph Kafker under the terrorism act is consistent with its
obligation under international law.

V.

Whether the cyberattacks on The Ames Post and Chester & Walsingham are
attributable to Riesland and constitute international wrongful act

STATEMENT OF THE FACTS

INTRODUCTION

Neighboring states, Amestonia & Riesland, established good relations with

each other and cooperated in different areas.
Riesland produced chemicals for boosting seeds yield named NEONICS which was
used in Amestonia.
States signed the treaty which allowed each state to establish the broadcasting
facilities on the others territory. In accordance with the treaty Riesland established a
division of its television corporation, The Voice of Riesland (VoR) in Amestonia. One
of VoRs most popular shows was Tea time with Margaret, featuring interviews with
leading Amestonian politicians and business leaders.

PROBLEM
Eventually it has been discovered that NEONICS causes harmful effect on bees
that might lead to catastrophic consequences for the environment. A number of
ecological activists have joined forces in order to attract public attention to this issue.
One of the groups, THE HIVE, has been claimed to practice violent actions.
Supposedly, this group committed firing of warehouses with barrels with the chemical
and in other means blackmailed government to make them stop the production and
utilization of NEONICS. In return, Riesland started anti-terrorist operations, including
gathering information about such activists. In particular, Riesland detained the former
Amestonian politician, Joseph Kafker and alleged that he was one of the key figures in
THE HIVE.

KEY FIGURE OF THE COMPROMIS

Former intelligence analyst of Riesland, Frederico Frost, revealed sensitive

information relating to the long-term secret Rielands intelligence operations in
Amestonia. In particular, a set of documents released a covert operation called The
Verisimo Program, in which a surveillance device of Riesland copied information
from Amestonias internet and telephone communications traffic. Another document
noted that the premises of the VoR station were used by Riesland to collect intelligence
on Amestonian public figures and private sector leaders: during the Tea with
Margaret Show their mobile phones have been collected for the purpose of installing
a rootkit malware. The whistle-blower distributed information with the legal support
from Chester & Walsinham law firm and through The Ames Post newspaper who
published leaked materials.

CRISIS

After the leak, Amestonia expropriated the property of the VoR and arrested its
employees, suspecting them of espionage. At the same time, the computers networks
of The Ames Post and Chester & Walsinham have been hacked and disabled. Riesland
is suspected in conducting these cyber-attacks. The States have referred all matters in
their dispute to the International Court of Justice.

SUMMARY OF PLEADINGS

I.

THE ADMISSIBILTY OF FROST FILES AS EVIDENCE

The documents published on the website of The Ames Post should be admitted

as evidence. The evidence clearly establish Rieslands mass electronic surveillance

program in Amestonias territory. Denial of the evidenced admissibility would clearly
deny Amestonia and its citizen to protect the inherect right which was clearly violated
by Rieslands surveillance activities.
In considering whether evidence should be admitted or not, the court should
give more weight to its relevance and substance of the evidence itself and not on the
presumption of doubtfulness because of its source.

II.

THE VALIDITY OF THE SEIZURE OF VoRs PROPERTIES AND THE

ARREST OF ITS EMPLOYEES
The State of Amestonia as a state exercised its police power and seized VoRs

properties and arrests its employees. The international law cannot deny a state of this
right on its own sovereignty. Denying such action would deny a state of it political and
social personality.
These actions are not in contravention of a the Broadcasting treaty, because it is a
a direct result of Rieslands contravention of the existing agreement which depreived
VoR and its employee of the immunities granted to them by the Treaty. It is also the
duty of a state to protect itself and its citizen from constant violation of their human
right resulting from the surveillance activities exercised by Riesland in guise of a treaty.

III.

THE LEGALITY OF JOSEPH KAFKERS ARREST

The arrest in subsequent detention of Joseph Kafker is a grave abuse of authority

resulting to violation of the persons human rights. Kafkers right to liberty was clearly
violated when he was arrested and detained without an arrest and an ambiguous crime
charged to him.
Kafkers right for a speedy trial and a competent counsel was also clearly denied
by the Tribunal. It is a clear violation of a persons right if a trial is being postponed with
no apparent reason and a counsel is provided with the approval of the accusing party.
IV.

THE ATTRIBUTION OF CYBER-ATTACKS ON REISLAND

The cyber attacks against The Ames Post and Chester & Walsingham are

attributable to Riesland, the attacked originating from its territory. It is immaterial

whether the actor or the recipient of the attack is a state or non-state, because the cyberattack is clearly political and concerns national security. Therefore Amestoni8 is entiled
to conduct their own investigation and to demand Riesland to abide by its duty and to
ensure that the non-state actors responsible will not remain unpunished.
Conpensation of the loss obtained from the cyber-attack and if Riesland
continues to deny Amestonia of just compensation for the said offense, then it would
tantamount to a statement resounding around the globe, that cyber-attacks to foreign
states are tolerable.

PLEADINGS

I.

THE AMES POST DOCUMENTS PUBLISHED IN THEIR WEBSITE ARE

ADMISSIBLE EVIDENCE BEFORE THE COURT.
1. Rieslands surveillance activities violated the international Law and its
international obligation to Amestonia.
One of the most fundamental and widely accepted Customary
International Law norms requires all states to respect one anothers
territorial and political integrity; this requirement applies only to states
physical incursion into another states territory, but also in its interference
with another states internal or external affairs.1
Rieslands

for

decades

has

conducted

surveillance

activities

on

Amestonias territory. First, a waterproof recording pod was installed on

the undersea fiber optic cable that was the primary backbone for
Amestonias international internet and telephone communications traffic.2
Then the Voice of Riesland (VoR), collects intelligence on high ranking
Amestonian public figures and private sector leaders by interviewing
them in a TV show and installing a malware on their personal electronic
devices allowing full remote access of such devices.3
Such programs threaten the national security of the applicant and will
deteriorate the applicants foreign relations and standing. Such activities
also violate the inherent right of every individual to privacy, home,
family, correspondence and protection from attacks upon his honor and

Military and Paramilitary Activities in and against Nicaragua (Nicar v. U.S.), Judgment (Merits), 1986 I.C.J. 160
, para. 202 (June 27)
2
Compromis P22
3
Compromis P25

reputation.4 Everyone has right to the protection of the law against such
interference or attacks.5

2. The documents presented published in The Ames Post are evidence of

Rieslands violation of international law and should therefore be
admissible to the court.
The Court shall determine whether the parties should present their
arguments before or after the production of the evidence, the parties shall,
however, retain the right to comment on the evidence given.6 The tribunal
must decide whether, based on evidence submitted by the parties, a
particular claim or defense has been established. This discretionary
authority by its nature invites an entirely personal assessment of evidence
by the tribunal.7 The documents published in The Ames Post regardless of
the nature of its acquisition should be admitted or at the very least
examined by the court.
In the case of The Prosecutor v. Ayyash, the international tribunal submits that
the database of the US diplomatic cables provided by WikiLeaks is an
invaluable and, in fact, undreamt-of source of documentation which any
individual interested in seeking the truth in terms of international
relations, be it ajournalist, a historian or a judge, cannot disregard.
The documents published in The Ames Post are substantial evidence and is
admissible before the Court to protect the inherent rights of Amestonia as
a country and its citizen. No one shall be subjected to arbitrary
4

Art. 12, Universal Declaration of Human rights.

Article 17 The International Covenant on Civil and Political Rights 1966
6
Article 58, International Court of Justice Rules of Court (1978)
7
Admissibility and Presentation of Evidence by George C. Ecomon pp. 3
5

interference with his privacy, family, home or correspondence, nor to

attacks upon his honor and reputation.8 The relevance of the evidence on
the issue presented should weight more than the technicalities presented
on its inadmissibility.

II.

THE SEIZURE OF THE VOICE OF RIESLAND DID NOT VIOLATE THE

BROADCASTING TREATY AND INTERNATIONAL LAW

A.

The seizure of the Voice of Riesland station and its equipment are in
accordance with Amestonias international law obligation.
Amestonia is exercising police power in the seizure of VoRs facilities and
the arrest of its employees. It is the sovereign right of a State, under
international law, to deprive owners, including aliens, of property which
is within its territory in the pursuit of its political, social or economic ends.
To deny such a right would be attempt to interfere with its powers to
regulate by virtue of its independence and autonomy, equally
recognized by international law its political and social existence.9
The premises of the station must not be used in any manner incompatible
with the stations functions as envisaged in the present Treaty, in other
rules of general international law, or in any other agreements in force
between the Parties hereto.10 The documents published in The Ames Post
clearly stated that VoRs premises had been used to promote its
surveillance activities on Amestonian soil.

Article 12 UNs Universal declaration of Human Rights

OECD Draft Convention on Foreign Property
10
Broadcasting Treaty, Article 23
9

10

The duty to compensate is not applicable to normal regulation. The State

of Amestionia is merely exercising its police power. Every natural or
legal person is entitled to the peaceful enjoyment of its possessions. No
one should be deprived of his possessions except in the public interest and
subject to the conditions provided for by the law and by the general
principles of international law. The proceeding provisions shall not,
however, in any way impair the right of a state to enforce such laws as it
deems necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other contributions or
penalties.11
B.

The arrest of Margaret Mayer and the two other employees of the Voice
of Riesland did not violate the Broadcasting treaty
Margaret Mayer and the two other employees committed acts that is in
contravention of the Broadcasting Treaty. They violated the inherent
rights of its guest to privacy and protection from attacks on their honor
when they used their position to hack into the individuals electronic
devices which then provided the Bureau full remote access to the devices.
At this point the station cease to operate as envisaged in the treaty, and
the immunities and

III.

THE DETENTION OF JOSEPH KAFKER BY THE RESPONDENT VIOLATES

THE PRINCIPLES OF INTERNATIONAL LAW
1. The detention of Joseph Kafker violates the International Law

11

European Convention of Human Rights are included in Article 1 of Protocol 1, concluded in 1952

11

Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and
in accordance with such procedure as are established by law.12 The arrest and subsequent
detention of Joseph Kafker is both a question of lawfulness and arbitrariness of the arrest.
A lawful arrest must not only be lawful but also reasonable and necessary

in all the circumstances for the aforementioned purposes. It is for the State party
concerned to show that these factors are present in the particular case.13 As to the
principle of legality, it is held that its a violation if an individual is arrested or
detained on grounds which are not clearly established in domestic legislation.14 With
regard to the meaning of arbitrariness is not to be equated with against the law, but
must be interpreted

more

broadly

to

include

elements

of inappropriateness,

injustice, lack of predictability and due process of law. This means that the remand in
custody pursuant to lawful arrest must not only be lawful but reasonable in the
circumstances. Remand in custody must further be necessary
circumstances,

for

example,

to

prevent

in

all

the

flight, interference with evidence or the

recurrence of crime15
In the case of Mukong, the applicant alleged that he had been arbitrarily arrested
and detained for several months, an allegation rejected by the State party on the basis
that the arrest and detention had been carried out in accordance with the domestic law
of Cameroon. The Committee concluded that article 9(1) had been violated, since the
authors detention was neither reasonable nor necessary in the circumstances of the
case. For instance, the State party had not shown that the remand in custody was
necessary ... to prevent flight, interference with evidence or the recurrence of crime
but had merely contended that the authors arrest and detention were clearly
12

Article 9(1) of the International Covenant on Civil and Political Rights

13

Communication No. 305/1988,H. van Alphen v. the Netherlands (Views adopted on 23 July 1990), in UN
doc.GAOR, A/45/40 (vol. II), p. 115, para. 5.8;
14

Communicaton No. 702/1996, C. McLawrence v. Jamaica (Views adopted on 18 July 1997), in UN doc. GAOR
, A/52/40 (vol. II), pp. 230-231, para. 5.5.
15
Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc. GAOR
, A/49/40 (vol. II), p. 181, para. 9.8.

12

justified by reference to article 19(3) of the Covenant, which allows for restrictions on
the right to freedom of expression. However, the Committee considered that national
unity under difficult political circumstances cannot be achieved by attempting to
Puzzle advocacy of multi-party democracy, democratic tenets and human rights,
and that the authors right to freedom of expression had therefore been violated.16
In this case, the arrest is clearly arbitrary and its legality is highly questionable.
First there is no warrant when he was arrested after he delivered his speech in
Rieslands largest law school.

17

Second there are no direct evidence with regard to

Joseph Kafkers involvement with a terrorist Group.

2. Joseph Kafker was not given a fair Trial by the National Security Tribunal
Everyone detained shall be entitled to trial within a reasonable time or to
release pending trial18 as well as the right to defend himself or to be assisted by counsel
as prescribed by law19 This is a logical protection in view both of the fact that everyone
charged with a crime has the right to be presumed innocent until proved guilty and of
the fact that deprivation of liberty must be an exceptional measure.
In this case, Riesland violated Joseph Kafkers right on a speedy trial when the
trial is being suspended every 21 days by the national security tribunal and being
continuously detained without any charge in a maximum-security facility. and be
assisted by a counsel of his own initiative. Hi right to be assisted by a counsel on hi
own descrition and initiative was also violated. The state of Riesland arbitrarily
provide Kafker with a group of special counsel selected with their approval.

16

Ibid.
Compromis 32
18
Article 9(3) of the International Covenant on Civil and Political Rights
19
Article 5(4) of the European Convention on Human Rights.
17

13

IV. THE CYBER-ATTACKS AGAINST THE AMES POST AND CHESTER &
WALSINGHAM ARE ATTRIBUTABLE TO RIESLAND, AND CONSTITUTE AN
INTERNATIONALLY WRONGFUL ACT FOR WHICH AMESTONIA IS ENTITLED
TO COMPENSATION.
A. The cyber-attacks are attributable
internationally wrongful act.

to

Riesland

and

constitute

an

A. Cyber-attacks are prohibited under the 1982 UNCLOS.

Any threat or use of force against the sovereignty, territorial integrity or
political independence of the coastal State, or in any other manner in
violation of the principles of international law embodied in the Charter of
the United Nations; any act aimed at collecting information to the prejudice
of the defence or security of the coastal State; any act of propaganda aimed
at affecting the defence or security of the coastal State; any act aimed at
interfering with any systems of communication or any other facilities or
installations of the coastal State.20
The foregoing provisions made it clear that the State of Amestonia is entitled to
compensation from Riesland. Not only did Riesland threaten the security of the
former, they also collected information at the expense of the other state to further
their own political whims. Although not stated directly, the cyber-territory of
Amestonia is impliedly a part of its sovereignty territory, as a States jurisdiction
can be construed not only that as territorial, fluvial or aerial; it spreads more vastly
than as ordinary interpreted, which includes its cyber domains.
The evidences presented by Amestonia carry enough weight to pin the cyberattacks on Riesland. The computer world may have an advanced berth but since
experts performed the analyses and investigation with regard the launched cyberattacks, there can be no mistake that the IP address was indeed used within
Rieslands jurisdiction. Further, there are no other parties involved that may have
The 1982 United Nations Convention on the Law of the Sea, particularly Articles 19,
109 and 11
20

14

orchestrated the cyber-attacks. Recalling past events, Riesland claims that an influx
of information was stolen from them; those which are being published by The Ames
Post and Chester & Walsingham. If we are to scrutinize carefully the circumstances,
and add-in the evidences gathered, Riesland has all means and motive to
orchestrate the subject cyber-attacks.

B. Cyber attack constitutes a use of force against another state that is inconsistent
with the purpose of UN.

All members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations. The ICJ held
that interference of whatever form is a use threat of force. This should include cyberattack.
Riesland is responsible for any cyber attacks originating from within its
territory, even if they are conducted by non-state actors such as terrorist
organizations.21 Cyber-attack is any aggressive act taken by a state actor in the cyber
domain necessarily involves national security. A cyber-attacks means can include
any actionhacking, bombing, cutting, infecting, and so forthbut the objective can
only be to undermine or disrupt the function of a computer network.22 Irrespective on
whether the actor is a state or non-state or the attack is directed to the state itself or
person in which the state has an interest with, cyber-attack has a political purpose
that threatens Amestonias national security.
It is undeniable that the cyber-attck on The Ames Post and Chester &
Walsinghams computer system is attributable to Riesland. And it is well established
Graham, D. (2010). Cyber threats and the law of war. Journal of National Security Law and
Policy, 4, 87-104.
22
The Law of Cyber-Attack, Oona A. Hathaway, Rebecca Crootof, Philip Levitz, Haley Nix, Aileen
Nowlan, William Perdue, Julia Spiegel, p. 10
21

15

that Amestonia is also a victim to this non-state attack because the information lost in
the attack concerns national security and interest.
It is therefore Amestonias right, being a victim of cyber attack, to demand the
territorial state to abide by its duty and to ensure that the non-state actors responsible
will not remain unpunished.23 And initiate its own investigation and if the allegedly
wrong state refuses to cooperate, it receives the status of a sanctuary state and
consequently becomes a potential target for a legitimate use of force by the victim
state.
C. Amestonias demand of compensation from Riesland is justified.
Amestonias demand of compensation from Riesland is justified because it
appears that the latter violated Article 19(c) of UNCLOS, specifically: (c) any act aimed
at collecting information to the prejudice of the defence or security of the coastal State. The
UN prays that no State resorts to the use of force when retaliating to an offensive
attack of a foreign State. Since cyber-attacks are not within the purview of the
prohibition against threat or use of force under international law, it is justified that
Amestonia be granted enough to compensation to whatever losses they may have
incurred. The latter, which Riesland has denied, is the punishment imposed upon the
latter State for breaching Amestonias cyber-security and for wiping out information
which they do not have jurisdiction over. If Riesland continues to deny Amestonia of
just compensation for the said offense, then it would tantamount to a statement
resounding around the globe, that cyber-attacks to foreign states are tolerable and are
outside the jurisdiction of International Law.

23

Schmitt, M. (2011). Cyber operations and the jus ad bellum revisited. Villanova Law
Review, 56, 569-606.

16

PRAYER FOR RELIEF

The State of Amestonia respectfully requests this Honorable Court to adjudge

and declare that:

1. Documents published on the website of The Ames Post are admissible as

evidence before the Court against Rieslands mass electronic surveillance
programs;

2. The seizure of the Voice of Riesland station and the arrest of Margaret Mayer
and the two other VoR employees, did not violate the Broadcasting Treaty
and were in accordance with Amestonias international law obligation;

3. The detention of Joseph Kafker under the Terrorism Act violated

international law and is therefore entitle to his immediate release, the
disclosure of all information which formed the basis of his apprehension, and
the payment of compensation for his detention; and

4. The cyber-attacks against the computer systems of The Ames Post and
Chester & Walsingham are attributable to Riesland and Amestonia is entitled
to compensation on such internationally wrongful act.

Respectfully submitted,

AGENTS FOR AMESTONIA

17

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