IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING

THE STATE OF PAFIANA

(APPLICANT)

Vs.

THE STATE OF INDIANA

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

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LOVELY PROFESSIONAL UNIVERSITY INTERNATIONAL MOOT COURT, 2019

- 2​ND​ SEASON

TABLE OF CONTENT

LIST OF ABBREVIATION IV
INDEX OF AUTHORITIES V
STATEMENT OF JURISDUCTION VII
STATEMENT OF FACTS VIII
STATEMENT OF ISSUES XIV
SUMMARY OF ARGUMENTS XV
ARGUMENTS ADVANCED 1
1. The State of Pafiana had illegally and unlawfully intervened in the affairs of the State
of Indiana particularly in Kudritan. 1
1.1 ILLEGAL INTERVENTION BY PAFIANA IN THE AFFAIRS OF INDIANA 1
1.1.1 The Principle Of Non Intervention Is A Recognised Under International Law. 1
1.1.2 Act Of Pafiana Is A Violational Of International Law. 2
1.1.3 State Of Pafiana Has Violated The Principle Of State Responsibility 4
1.2 Self determination 4
2. THE STATE OF PAFIANA HAD VIOLATED THE CUSTOMARY
INTERNATIONAL LAW AND UN RESOLUTION BY AIDING MILLITANTS TO
INTRUDE INTO THE STATE OF PAFIANA. 5
2.1 Concept of Territorial Integrity 5
2.2 Violations of Territorial Integrity 6
2.3 Violation of UN recognized principles and resolutions by state of Pafiana 7
3. THE STATE OF PAFIANA HAD VIOLATED THE HUMAN RIGHTS OF THE
CITIZENS OF INDIANA AND KUDRITAN. 8
3.1 International human rights law 8
3.2 Terrorism 8
4. USE OF CHEMICAL, BIOLOGICAL OR NUCLEAR WEAPON AGAINST THEN
IN CONTRAVENTION OF CTBT. 10
4.1 EVERY PERSON HAS INHERENT RIGHT OF RIGHT TO LIFE 10

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4.2 THREAT OF USE OF CHEMICAL, BIOLOGICAL OR NUCLEAR WEAPON IS
A CRIME UNDER INTERNATIONAL LAW 11
5.STATE OF PAFIANA HAD VIOLATED THE INTERNATIONAL LAW BOTH
CUSTOMARY AND CONVENTIONAL BY NOT RECOGNISING THEMILITANT
OUTFITS AND CLANDESTIELYSUPPORTING THEM IN TAKING THE
OFFICIAL HOSTAGES 12
5.1 International Convention Against the Taking of Hostages, 12
5.1.1 What Is Hostage Taking 12
5.1.2 Prisoners Of War (Pows) 12
5.2 CUSTOMARY AND CONVENTIONAL LAWS RELATED TO PROHIBITION
OF HOSTAGE TAKING UNDER INTERNATIONAL LAWS 13
5.2.1 Geneva Convention 13
5.2.2 Common Article 3 13
5.3 Customary International Humanitarian Law 14
PRAYER 17

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 LIST OF ABBREVIATION
¶ Paragrph

Art. Article

H.R. Human Rights

URA United Republic of ASIAN

RoA Republic of Andorra

ICJ International Court of Justice

U.N.I.C.E.F. United Nations Children’s Fund

U.N.E.S.C.O. United Nations Educational, Scientific and Cultural Organiszation

U.N.C.T.O.C. United Nations Convention on Transnational Organised Crime

I.C.T.R. International Criminal Tribunal for Rawanda

I.L.C. International Law Commission

P.C.I.J. Permanent Court of International Justice

U.N.C.A.C. United Nations Convention Against Corruption

U.N.S.C. United Nations Security Council

U.N.G.A. United Nations General Assembly

V.C.D.R. Vienna Convention on Diplomatic Relations

V.C.C.R. Vienna Convention on Consular Relations

V.C.L.T. Vienna Convention on law of Treaties

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 INDEX OF AUTHORITIES

INTERNATIONAL​ ​TREATIES, AGREEMENTS AND CHARTERS

​
International Covenants on Human Rights, Common Article 1, December 16, 1966.
The United Nations Charter, 1945
International Covenant on Civil and Political Rights, December 16, 1966.
International Covenant on Economic, Social and Cultural Rights, December 16, 1966
Universal Declaration on Human Rights, 1948.
The Agreement for the Right of Self-Determination and to establish a Democratic set
upon BoLR (ARSDB)
UN Security Resolution 47, Kashmir
General Assembly Resolution 2625 (XXV) of 24th October, 1970.
The Geneva Conventions of 1949.

RESOLUTIONS

SC Res. 163 (XVI), Question Relating to Angola, June 9, 1961, S/4835 (1961).
GA Res. 421(V), Draft International Covenant on Human Rights and Measures of
Implementation, December 4, 1950, A/RES/421.
The General Assembly Resolution 2625 (XXV),
Declaration on Principles of International Law concerning Friendly Relations and C
o-operation among States inaccordance with the Charter of the United Nations​:
A/RES/25/2625 (24 October 1970)
G.A.Res.1514(XV),​ Declaration on the Granting of Independence to ColonialTerrito
ries and Peoples​ at 75, Dec. 14 1960
U.N. Doc.A/RES/1514(XV) (1960) [hereinafter Colonial Declaration];
GA Res. 1541(XV), Principles which should guide Members in determining whether
or not an obligation exists to transmit the information called for under Article 73e of
the Charter, December 15, 1960, A/4684 (1960)

ACTS & REPORTS

Indian Independence Act, 1947.

International Status of South-West Africa, ICJ Reports, 1950, p.131.
ICJ Reports 1950, p.132.
A.J.I.L, Vol. 22 (1968), pp. 867-912
Permanent Court of International Justice (1993) A/B No.53 (3 W.C.R. 151)
I.C.J. Reports 1953, p.47
UN SC Res. 1373, o​n threats to international peace and security caused by terrorist
acts​, September 28, 2001, S/RES/1373.
Friendly Relations Declaration, ​supra​ note 12,: The Resolution provides the state to
respect territorial integrity of a state and provides the states from refraining itself
from any of the acts which may breach the territorial integrity of the other state.

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 Vienna Convention on the Law of Treaties, Article 31(3) (b) reads: „​any
subsequent practice in the application of the treaty which establishes the agreement of
the parties regarding its interpretation‟​ , May 23, 1969, 1155 U.N.T.S. 331.
[hereinafter VCLT]

CASES

Case concerning East Timor (Portugal v. Australia), (1995) 102 I.C.J. Rep. 9
Case Concerning the Barcelona Traction, Light and Power Company, Limited
(Belgiumv. Spain), (1970) 304 I.C.J.
Fisheries Jurisdiction Case (Second Phase) 2 February 1973.
United Kingdom v. Iceland, (1974) 162 I.C.J. Rep. 3.
Prosecutor v. Kupreškić, (2000) ¶ 521 Case No. IT-95-16-T.
Blaskić Case, IT-95-14-T, 3 March 2000.
Kordić & Čerkez Case, July 18 2008.
Abella v. Argentina, (1997) Case No 11.137 Report No 55/97
Palestinian Territory Case, Advisory Opinion, I. C. J. Reports 2004.
Sergio Euben Lopez Burgos v. Uruguay, (1981) U.N. Doc. Supp. No. 40 (A/36/40)
at176 (1981).

ADVISORY​ ​OPINION

Western Sahara, Advisory Opinion, (1975) 31-33 I.C.J. Rep. 12

Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, (2004) 136 I.C.J. Rep. 9 July 2004. [here in after
Palestinian Territory Case]
Advisory Opinion on Nuclear Weapons, ​supra n​ ote 90, at 25.

BOOKS​ ​&​ ​ARTICLES

Antonia Cassese, Self Determination of Peoples- A Legal Appraisal (1996).

R. Provost, International Human Rights and Humanitarian Law (2002)
Patrick Bascio (2007). Defeating Islamic Terrorism: An Alternative Strategy. Branden
Books.
"Pakistan: Rampant Killings of Shia by Extremists". Human Rights Watch. June
30,2014.
Astrid J. M. Delissen, Humanitarian Law of Armed Conflict: Challenges Ahead1
08(1991).
Kashmir Across LoC, Debidatta Aurobindo Mahapatra, Gyan Publications, 2003, Pg.
14.
S.R.S. Bedi, The Development of Human Rights Law by the Judges of the
International Court of Justice, Hart Publishing, Oxford, 2007.
​ enth Edition.
J.G. Starke​ Introduction to International Law, T
L. Oppenheim,​ International Law,​ Vol. 1, Eighth Edition.
J.E.S. Fawcett, ​The Law of Nations,​ OUP Oxford, 2008.
Rigo Sureda, The Evolution of the Right of Self-Determination.
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 Louis B. John, ​The Development of the Charter of the United Nations: The Present
State”.

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 STATEMENT OF JURISDUCTION

The State of Pafiana and State of Indian submit their dispute concerning Right of
Self-determination and establishment of democratic setup of to
the​ International Court of Justice  ​by Special Agreement pursuant to article 40(1) of the
Statute of the​ International Court of Justice​. The parties have agreed to the contents of the
Compromis submitted as part of the Special Agreement. The State of Pafiana and State of
Indiana have accepted the compulsory jurisdiction of the Court in accordance with article
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40(1) of the Statute of the​ ​International Court of Justice​.  
The State of Pafiana undertake to accept the judgment of this Court as final and binding and
shall execute it in good faith in its entirety. 
 

1
​Article 40(1) - Cases are brought before the Court, as the case may be, either by the notification of the special
agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and
the parties shall be indicated. 
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 STATEMENT OF FACTS

History

The ‘Republic of Indiana’ herein after referred as Indiana. The entire stretch of Indiana was
ruled by different emperors who were constantly involved in conquest of other empires. In
the 8​th century Hoaler religion came into Indiana through the Abria, Perks, Perisa and other
raiders which eventually resulted in the Hoaler Empire being established. They were
followed by the Bauldenese, Trench and Cluck invasions and later on by the drotiers who
ruled Indiana for about two centuries. Indiana fought for her independence which was granted
to her on 15​th August 1947. However, Indiana had to agree for a compromise of setting up a
new Hoaler State in the name of Pafiana, thus Pafiana was born on 14​th August 1947. This
contributed to a series of communal violence and tensions in the area.

The partition of the Indiana sub-continent along religious lines led to the formation of Indiana
and Pafiana. However, there arose the problem of unification of over 650 disparate State run
by princes, existing within the two newly Independent countries. Most of the princely States,
i.e., 642 acceded to Indiana and the remaining 22 acceded to Pafiana.

Because of its location, Kudritan could choose to join either Indiana or Pafiana, Maharaja
Himmat Singh, the ruler of Kudritan was a Mawani while most of his subjects were Hoalers.
The population of Kudritan comprised 70% Hoaler and 30% Mawani. But all hopes of
remaining independent got toppled when Pafiana sent Hoaler tribesmen as invaders into the
capital of Kudritan, Srinagar. Himmat Singh appealed to the Indiana government for military
assistance and field to Indiana of Accession, ceding Kudritan to Indiana on October 26, 1947.
Indiana and Pafiana forces fought their first war over Kudritan in 1947-48. Indiana referred
the dispute to the United Nation (UN) on 1​st January, 1949. In a resolution dated August 13,
1949, the UN asked Pafiana to remove its troops, after which Indiana was also to withdraw
the Kudritani people to decide their future.

Indiana, having taken the issues to the UN, was confident of winning a plebiscite, since the
most influential Kudritani mass leader, Khurad, was on their side. To gain an upper hand an

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emergency government was formed on October 30, 1949 with Khurad as the Chief Minister.
In 1957, Kudritan was formally incorporated into the Indian Union. It was granted a special
statue under Article 370 of the Indian Constitution.

VIOLENT CLASHES BETWEEN THE STATES

Tensions between the two states kept occurring on and off thereby leaving the region prone
for violent clashes. In the year 1965, fighting broke out again but a ceasefire was established
that September. Indiana Prime Minister (PM), Mr. Lal, and Pafianai President Mr. Kan,
signed the Kalakent agreement on January 1, 1966. they resolved to try to end the dispute
however it took the back seat with the sudden demise of the PM of Indiana, which resulted
in a stalemate with the rise of general Zahya in Pafiana. In 1971, a third war ensued,
resulting in the formation of the independent nation of Mahapradesh (formerly known as
East Pafiana). A civil war had broken out in East Pafiana in March 1971, and soon Indiana
was faced with millions of refugees. Thereafter Indiana declared war on December 3, 1971
after Pafiana Air force planes struck Indiana Airfields on the western sector. Two weeks later
the Indiana army marched into naaka and the Pafiana army surrendered. In the western
sector the Indianas managed to block the port city of xrachi and were 50 km into Pafiana
territory when a ceasefire was reached. In 1972 the Prime Minister of both Indiana and
Pafiana signed the Sheetal Agreement, which reiterated the promises made in Kalakent. The
two sides once again agreed to resolve their issues peacefully as only domestic issues
dominated. Both Indiana and Pafiana had other important domestic problems which kept
Kudritan on the back burner.

Status quo was largely maintained until 1989 when pro-independence and pro-Pafiana
guerrillas struck in the Indiana kudritan valley. They established a reign of terror and drove
out almost all the Mawani from the valley before the Indiana army moved In to flush them
out. Meanwhile Indiana and Pafiana troops regularly exchanged the fire at the border.
Consequently some terror outfits started getting trained in the border region of Pafiana for
mounting attacks on Indiana inspite of high vigils of the forces, acts of terror affected the
Kudritan region with sepratist group emerging in the valley. This led to the influx of Indiana

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army into the valley to suppress the uprising of the separatist movement. In the course of
subduing the separatist the people of Kudritan had suffered attrocities and torture. By the
year 1990, Indiana had lost favour with the people of kudritan and was not in favour of
plebiscite.

Indiana nad Pafiana both tested nuclear devices in may 1998 and then in august 1999 test
fired missiles in efforts to perfect delivery systems for their nuclear weapons. Pafiana tested
its missiles four days after Indiana’s testing of its long range (1250 km) Pani-ii. Although
Pafiana claimed that its missiles were an indigineous efforts, in july 1999 Indianan customs
agents seized components shipped from North Kere which they claim were destined for
Pafiana’s missile programme which was an intermediate range Lori - 3 missile with the range
of about 3000km.

Efforts were taken to reconcile the dispute and restore peace in the region but all hopes of
diplomacy disappeared once the cross- LOC firing in Hargil began during the mid- 1990s. the
death toll, including both soldiers and civilians was more than 30,000. in the first week of
august 1998 Indiana and Pafiana troops exchanged artillery fire. An estimated 50,000
rounds of ammunition were expended and a large number of soldiers and civilians killed. In
the summer of 1999 hostility in Hargil went far beyond the annual exchange artillery fire.
When Indiana began patrolling the Hargil height that summer, it found to its horror that
many key posts vacated in the winter were occupied by infiltrators. A patrol was ambushed
in the first week of May 1999. Indiana belated realised the magnitude of the occupation
which was around 10 km deep and spanned almost 100 km of the Line of Control (LOC) and
pushed into action fighter jets on May 26.

Indiana contended that the infiltrators were trained and armed by Pafiana and based in
“Pafiana occupied Kudritan” with the full knowledge of the Pafiana Urged that those
involved were freedom fighters from Kudritan and that it was giving only moral support.
Indiana ordered the jets not to stray into Pafiana Territory; but those that did were shot
down. The conflict ended only after the DSA President and Pafiana’s Prime Minister, met in
Fashionton on July 4, 1999. Meanwhile, the Indiana Army made significant advances,
capturing vital territory on July 4. Despite the apparent efforts to mediate the DSA

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maintained that it was not interfering in what Indiana claimed to be a bilateral issue. Pafiana
withdraw its forces later that month. The official number of Indiana troops lost in Hargil was
around 500, with almost double that number of infiltrators killed. Despite much pressure
from the military and the public, the government decided not to cross the LOC. Pafiana too
suffered criticism at home for limiting its war to artillery fire across the LOC and shooting
down Indian aircraft.

TERROR ATTACKS

With things going calm for a few months. Indiana was faced with another instance of
terrorism in the form of its National Airliner being hijacked during December 1999. In return
for the lives of those on the aircraft, the Indiana government was forced to comply with the
demand of the militants of releasing three of their leaders lodged in the Indiana prisons. This
act of releasing the prisoners left the government in a fix due to the plethora of attacks the
terror outfit launched in different parts of the State of Indiana during the decades that
followed. Some of the instances are the attacks on the pink fort, the Parliament in the national
capital, the Kombai attacks and many more which occurred in the years that followed Pafiana
has continued to harbour and train several terror outfits in its region with the sole aim of
hampering peace and security in Indiana and especially in Kudritan. These militant groups,
time and against intruded into the Indiana territory to create discord in the land and undertake
violent attacks. All these outfits were clandestinely support and financed by the Pafiana
intelligence services. Inspire of Indiana’s repeated demands to Pafiana to shut down all the
militants groups and not support them it fell on deaf ears and Indiana suffered at the hands of
the militants unrest hampering the peace of Kudritan an its neighbouring areas. In addition,
Indiana also submitted a dosser of evidences to Pafiana about the varied militant outfits
functioning from Pafiana and to take necessary steps to end the problem of militancy. Indiana
took all possible measures to counter such terrorist attacks, but instances of terrorism
continued to occur.

On the evening of 24​th October, 2018 the intelligence of Indiana was able to intercept an
encrypted message regarding a possible attack on an Army camp in the Kudritan region and
its surrounding area. Before Indiana army could heighten their vigil, on the 25​th October the

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army camp at Jahanumbad in Kudritan region situated within the radius of 7Kms from LOC
was attacked by a group of infiltrators from Pafiana and a gun battle ensured resulting in loss
of lives of about 10 civilians and destruction of the army camp. The Indiana media
sensationalizing the issue and the repeated demands of the public to taken action put
enormous pressure on the government to take action against Pafiana. Indiana was depicted by
its media as a wounded lion in a series of attacks aimed at it and pressured to take immediate
retaliatory measures to avenge the avenge the assault on its sovereignty.

HOSTAGES

To mount pressure on the Pafiana government, Indiana decided to block the Sindhu river
water flow into Pafiana. The agreement between Pafiana and Indiana was that the eastern
rivers be available to Indiana and the water of the western rivers be allowed unrestricted flow
into Pafiana. As per the treaty, water of the western rivers to be used by Indiana for
non-consumptive needs and 80% of the water of the Sindhu water system was allocated to
Pafiana. Pafiana vehemently opposed the decision of Indiana violating the provisions of the
agreement as it would be in contravention to the law of treaties. Pafiana PM stated that
Indiana will have to face dire consequences may be in the form of a chemical, biological or
nuclear weapon attack. With no respite and mounting pressure from the public, Indian
government arena and also in the eyes of its citizensd to take immediate retaliatory measures
to avenge the assault on its sovereignty.

As a countermeasure, on 6​th November 2018, Indiana launched aerial attacks on Pafiana’s

terrorist campsites located within 10 Km near the LOC of Kudritan to immobilise any further
infiltration and to eliminate the terror camps. The army personnel’s(40 in number) were
flown into Pafiana area in three helicopters. All attempts were made to execute the operation
in such a manner as to strike the camps in the enemy territory by attracting less attention to
them and retreat before dawn. Pafiana army who has a base camp near to the infiltrators camp
got cue of the strike initiated by Indiana through villagers residing nearby the militant groups
which got the Pafiana army into action and there ensued a bloody onslaught between the two
armies, which resulted in casualty of12 citizens of Pafiana and injuring several others. The
onslaught resulted in a bunch of officers of Indiana army gaining access into the base camp of

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Pafiana close to the terror camps. While retreating the Indiana army had to leave behind one
of its helicopters due to technical snag and escaped in the other two helicopters. Before
returning the Indiana army set the broken-down helicopter on fire so as to prevent access to
its instruments. Therefore, Pafiana army claimed that Indiana army had taken five of its army
personnel as hostage, one of whom was a scientist at the Division of Defence Science and
Technology Research Organisation of Pafiana while retreating. To prove the claim of
Pafiana, they had provided a dossier to the Indiana government with proof of Pafiana army
personnel missing and taken hostage which was rejected by the Indiana government.

The launch of such an attack on Pafiana attracted criticism from the international community,
thereby placing both the States in a tight sport to solve their issues at the earliest. The alleged
act of Indiana taking hostages to seek the release of its own officers was considered as a
despicable act and both the countries were involved in verbal spat. The matter became highly
volatile with the imminent possibility of a war like situation in the region. With the South
Asian countries in the region asking to keep calm and sought settlement of the dispute in a
healthy manner, both Indiana and Pafiana were hard pressed to settle the dispute amicably.
Hence, they met for an urgent Diplomatic Negotiation talks in Fashionton B.T., Capital of
DSA, where the final rounds of negotiations took place. These negotiation & attempts for
arbitration did not prove to be of much help and rather created further tensions between the
state.

THE DISPUTE

The State of Pafiana believed that there was gross violation of international human rights and
customary international law and UN initiated ceasefire. Per contra Indiana’s stand was that no
law has been infringed as Pafiana was not able to suppress the terrorist activities on the LOC.
Both the states were not relenting to accept taking of hostages and with the need for setting
the matter they mutually agreed to appear before the International Court of Justice and filed
an application invoking Article 36(2) of the ICJ Statute. As both the states in the case had
signed an unconditional declaration recognizing the compulsory jurisdiction of the court on
file with the registrar. The final, written and oral arguments from both the parties are due in
the month of August 2019.

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Indiana and Pafiana are member of United Nations, and Party to the United Nations Charter,
and have signed and ratifed the universal the Universal Declaration of Human Rights.
International Covenant on Civil and Political Rights, 1966, and International Covenant on
Economic, Social and Cultural Rights, 1966. The State of Pafiana has signed, but not ratified
all four Geneva Conventions of 1949 but Indiana has both signed and ratified them. In
addition thereto both the nations have entered into agreement namely Kalakent Agreement,
Sheetal Pact and Sindhu Waters Agreement. The provisions of Kalakent Agreement, Sheetal
Agreement and Sindhu Waters Agreements are in parity with Tashkent Agreement, Shimla
Agreement and Indus Waters Treaty respectively.

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 STATEMENT OF ISSUES

I. The State of Pafiana had illegally and unlawfully intervened in the affairs of the
State of Indiana particully in Kudritan.
II. The State of Pafiana had violated the customary international law and UN
resolution by aiding the militants to intrude into the State of Indiana.
III. The State of Pafiana had violated the human rights of the citizens of Indiana and
Kudritan.
IV. The State of Pafiana had put the life of the people o Indiana especially Kudritan
under, threat of use of chemical, biological or nuclear weapon against them in
contravention to the CTBT.
V. The State of Pafiana had violated the International Law both customary and
conventional by not recognising the militant outfits and clandestinely supporting
them in taking officials of Indian as Hostage.

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 SUMMARY OF ARGUMENTS

I. The State of Pafiana had illegally and unlawfully intervened in the affairs of the
State of Indiana particully in Kudritan.
II. The State of Pafiana had violated the customary international law and UN
resolution by aiding the militants to intrude into the State of Indiana.
III. The State of Pafiana had violated the human rights of the citizens of Indiana and
Kudritan.
IV. The State of Pafiana had put the life of the people o Indiana especially Kudritan
under, threat of use of chemical, biological or nuclear weapon against them in
contravention to the CTBT.
V. The State of Pafiana had violated the International Law both customary and
conventional by not recognising the militant outfits and clandestinely supporting
them in taking officials of Indian as Hostage.

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 ARGUMENTS ADVANCED
ISSUE 1

1. The State of Pafiana had illegally and unlawfully intervened

in the affairs of the State of Indiana particularly in
Kudritan.

1.1 ILLEGAL INTERVENTION BY PAFIANA IN THE AFFAIRS OF INDIANA

1.1.1 THE PRINCIPLE OF NON INTERVENTION IS A RECOGNISED UNDER

INTERNATIONAL LAW.
The principle of non-intervention is an important part of international order. Intervention in
terms of International law is the term for the use of force by one country or sovereign state in
the internal or external affairs of another. It has been defined by ​Oppenheim in the following
words: ​“Intervention as a forcible or dictorial interference by a State in the affairs of another
​ he
State calculated to impose certain conduct or consequences on that other state.” T
prohibition of intervention is the corollary of every state’s right to sovereignty, territorial
integrity, and political independence.

The principle of non-intervention by states has been propounded in Article 2 (4) of the
United Nations Charter. It states that, “​All members shall refrain their international relations
from the threat or use of force against the territorial integrity or political independence of
any State or in other manner inconsistent with the purposes of United Nations Charter​.” This
2
basic rule is further reiterated in numerous international instruments

The principle of non-intervention by UN finds incorporated in Article 2(7) in the UN charter.

It provides : “ Nothing contain in the present charter shall authorize the UN to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the

2
General assembly resolution 2131(xx) of 1965
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members to submit such matters to settlement under the present charter ; but this principle
shall not prejudice the enforcement measures under chapter 7.”
3
In 1970, general assembly adopted unanimously a resolution entitled declaation on principle
of law concerning friendly relation and cooperation among states “​every state has duty to
refrain from organising , instigating, assisting and participating in the acts of civil strife or
terrorist act in another state or acquiescing in organising activities within its territory
directed towards the commission of such acts involve a threat or use of force”
Non-interference in the internal affairs of states has become firmly established in
international relations and international law as a fundamental and generally recognised
4
principle .

1.1.2 ACT OF PAFIANA IS A VIOLATIONAL OF INTERNATIONAL LAW.

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As regard to the principle of non-intervention General assembly in its resolution added:
“No state or group of state has a right to intervene directly or indirectly for any reason
whatever, in the internal and external affairs of the state. Consequently, armed intervention
and all other forms of intervention or attempted threat against the personality of the state or
against its political, economic and cultural elements are violation of international law.”

At the time of partition Kudritan decided to remain neutral and an independent state but
Pafiana sent its tribesmen to capture the territory of Kudritan. Then Himmat singh appealed
to Indiana for military support and signed an instrument of accession ceding kudritan to
Indiana. Indiana and Pafiana fought first war and Indiana referrer the dispute to UN. Despite
of UN resolution Pafiana did not remove its troops from the territory of kudritan and
continued fighting. In the present case, both State of Pafiana and State of Indiana are
members of UN and are parties to the UN Charter and other UN conventions. Therefore, it
was expected of Pafiana to adhere to the principles and conventions relating to
non-intervention stated above and not to indulge in any kind of excesses. Unfortunately
Pafiana intervened in affairs of Indiana by different ways.

3
General assembly resolution 2625(xxv) of 24​th​ oct, 1970

4
Declaration on the enhancement of the effectiveness of the principle of refraining from threat or use of force
in international relations adipted by the general assembly on 18​th​ nov, 1987
5
General assembly resolution 2625(xxv) of 24th oct, 1970
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Also in mid 1990s cross- LOC firing began in Hargil. Indiana and Pafiana troops exchanged
artillery fire. It became clear, when Pafiana itself told that they were giving moral support to
6
thw freedom fighter of kudritan. ​In Nicaragua case​, The Court considers that in
international law, if one State, with a view to the coercion of another State, supports and
assists armed bands in that State whose purpose is to overthrow the government of that State,
that amounts to an intervention by the one State in the internal affairs of the other, whether or
not the political objective of the State giving such support and assistance is equally
far-reaching. ​Thus the assistance to the infiltrator, as well attacks on kudritan not only
amount to an unlawful use of force, but also constitute infringements of the territorial
sovereignty of Indiana.
7
In Democratic Republic of the Congo v. Uganda , Court emphasis that where an unlawful
military intervention reaches a certain magnitude and duration it would amount to grave
violation of the prohibition of use of force expressed in article 2 Paragraph 4 of the charter.

Grounds of Intervention

Self Defence: It has been a valid ground of intervention by one state in the affairs of
another state. But as pointed out by Oppenheim, the use of force in self-defence can
be justified only when it is necessary for self preservation. In the famous case, “the
Caroline”, Mr. Webster declared that the necessity of self-defence should be instant
overwhelming leaving no choice of means and no movement for deliberation.
Humanitarian grounds: the intervention on the ground of violation of humanitarian
law can be permitted. But it may be done only by the UN and not by individual state
and even UN can intervene only when the violation of human right in a member state
causes a threat to international peace and security.
To enforce treaty rights: this used to be a valid ground in past but in the presence of
UN charter this has cease to be a valid ground of intervention.
To prevent illegal intervention: in past this used to be valid ground but the UN
charter has greatly affected intervention on this account also.

6
(Nicaragua/United States of America) Merits. J. 27.6.1986 I.C.J. Reports 1986, p. 14
7
ICJ Report 2005
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 Balance of power: it used to be valid ground in past but is no more permissible
ground of intervention in the presence of UN charter.
Protection of person and property: the charter does not recognize this ground and
permits intervention only on the ground of self-defence. .
Collective intervention: it means the intervention by UN as permitted by the
provisions of the charter. Under chapter vii the Security Council can take collective
action against any state in order to maintain or restore international peace and
security.
Civil wars: generally Article 2(7) of the charter prohibits UN from intervening in the
domestic affair of any state and as such ordinarily UN cannot intervene in the civil
war of any state. But if the civil war assumes such magnitude that it causes threat to
international peace and security the UN may intervene.

1.1.3 STATE OF PAFIANA HAS VIOLATED THE PRINCIPLE OF STATE

RESPONSIBILITY
1.2 Self determination

Self determination denotes the legal right of people to decide their own destiny in the
international order. Self determination is the core principle of international law arising from
customary international law and also recognized as a general principle of law enshrined in
number of international treaties. For instance, self determination is protected under UN
Charter and the international covenant on civilian political rights as a right of “all people”. It
has been defined under Article 1(2) of UN Charter as:

The purpose of UN is to develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace.

In international law the rights of self-determination become recognized in the 1960s was
interpreted as the right of all colonial territories to become independent and to adopt any
other status they freely choose. Ethnic or other distinct groups within colonies did not have
right to separate themselves from the people of territory as a whole.

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Therefore in other words, it is a binding principle only in the context of colonialism. It need
not to be over emphasized that Kudritan is a colonial state. As in the present case, Himmat
Singh signed the instrument of accession ceding Kudritan to Indiana on October 26, 1947.
The accession of Kudritan into Indiana is complete and final and that is irreversible. Despite
this legal and factual position, under certain pressures, Indiana agreed to hold plebiscite in
Kudritan.

It maybe noted that Indiana cannot be blamed for not holding plebiscite. The resolution of
UN dated August 13 ,1949 provided for plebiscite clearly provided for withdrawal of Pafiana
armed forces from Pafiana occupied Kudritan as a condition precedent for holding plebiscite.
Plebiscite could not be held because Pafiana never fulfilled this condition.

ISSUES 2

2. THE STATE OF PAFIANA HAD VIOLATED THE CUSTOMARY

INTERNATIONAL LAW AND UN RESOLUTION BY AIDING
MILLITANTS TO INTRUDE INTO THE STATE OF PAFIANA.

Customary international law is an aspect of international law involving the principle of

custom. The statute of ICJ describes customary international law as “a general practice
accepted as law”. It is generally agreed that the existence of rule of customary international
law requires the presence of 2 elements mainly; state practice and a belief that such practice
is required, prohibited or allowed, depending on the nature of the rule. The ICJ stated in the
continental shelf case:

“The material of customary international law is to be looked for primarily in the actual
practice and opinio juris of states.”

In 1950, the International Law Commission listed as evidence of customary international

law- treaties, decision of national courts and international tribunals, diplomatic

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correspondents and the practice of international organization. Hence, Kelson described
International custom as “unconscious and unintentional law making”, does not arise from a
deliberate legislative process, but rather as a collateral effect of the conduct of states in their
international relations.

2.1 Concept of Territorial Integrity

An intrusion is an uninvited action of a state within territory of another state. The concept of
territorial integrity emerged as a general principle of international law during the course of
the 19th century. In the middle of the

19th century the language on territorial protection that we still use today was already
established within the discourse on international law. Territorial integrity is the principle
under international law that prohibits states from the use of force against the “territorial
integrity or political independence” of another state. It is recognized in Article 2(4) of UN
Charter as well as, as a customary international law. In the United Nations (UN) Charter we
now find the protection of territorial integrity specifically mentioned as a crucial component
of the prohibition of the use of force as provided for in Article 2 (4): “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 concept of territorial integrity has been incorporated into a large number of UN
8
resolutions

and multi- as well as bi-lateral treaties. Terrorism is the most serious danger to any state or its
nationals. The terrorist attack greatly affects the person in property. Hence, to combat
terrorism effectively it is necessary for a state to take preventive measures outside of its own
territory.

8
See only UN General Assembly Resolution 3314 (XXIX) (Definition of Aggression),
14.12.1974; UN General Assembly Resolution 2625 (XXV) (Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations), 24.10.1970
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2.2 Violations of Territorial Integrity
direct and indirect violations. Direct violations are those where the use of force can be
attributed to another state. Such an attribution follows the customary law on state
responsibility as largely expressed in the International Law Commission’s Draft Articles on
9
State Responsibility . The second possibility of direct attribution is given when the state has
directed irregular fighters, such as militias or armed groups or where such
10
fighters were acting under a state’s effective control.

A more precise understanding of what sort of actions can constitute a direct violation of a
state’s territorial integrity can be derived from the 1974 Definition of Aggression, which
enumerates relevant examples. The resolution mentions invasion, occupation, annexation,
bombardment, blockade of ports, as well as the use of foreign forces stationed within the
territory of a state beyond what has been agreed upon between the troop-sending and the
troop-receiving state.

The Definition of Aggression also covers constellations in which non-state actors are acting
under a state’s effective control. It qualifies as aggression “[t]he sending by or on behalf of a
State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force
11
against another State”.​

2.3 Violation of UN recognized principles and resolutions by state of Pafiana

Pafiana has violated the customary international law and recognized principle of UN
including Charters and resolutions adopted by General Assembly and Security Council.

2.3.1 State of Pafiana has violated the resolution 2396 adopted Security Council on 21​st
December 2107.

2.3.2 This resolution reaffirms that terrorism in all forms and manifestations constitutes one
of the most serious threat to international peace and security and that any acts of terrorism are

9
Draft Articles on Responsibility of States for Internationally Wrongful Acts, YBILC
2001, Vol. II, Part Two, 26.
10
See Draft Articles on State Responsibility (note 39), Article 8, which the ICJ has declared to express
customary international law (see ICJ, Genocide case [note 40], 207-08 [para.
398]).
11
Definition of Aggression (note 8), Article 3 (g).
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criminal and unjustifiable. To counter this threat collective efforts on national, regional and
international level is required. On the basis of respect for international law and charter of UN.
This resolution reaffirm that member states must ensure that any measure taken to counter
terrorism comply with all their obligations under international law.

2.3.2 State of Pafiana has violated the resolution adopted by general assembly on 26​th June
2018.
2.3.4 This resolution reiterate the obligation of the member states to prevent and suppress
the financing of terrorist acts and to criminalize the willful provisions or collection by any
means, directly or indirectly, of funds by their nationals or in their territories, with the
intention that the funds be used, or with the knowledge that they are to be used, in order to
carry out terrorist acts.

2.3.5 State of Pafiana has violated the UN resolution 2462 (2019) adopted by Security
Council Security council acting under chapter VI of the united nation charter, reaffirm its
resolution 1373(2001) and in particular its decisions that all state shall prevent and suppress
the financing of terrorist acts and refrain from providing any form of support, active or
passive, to entities or persons involved in the terrorist acts, including suppressing recruitment
of members of terrorist group and eliminating the supply of weapons.

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 ISSUES 3

3. THE STATE OF PAFIANA HAD VIOLATED THE HUMAN RIGHTS

OF THE CITIZENS OF INDIANA AND KUDRITAN.

Human rights are rights inherent to all human beings regardless of race, sex, nationality,
ethnicity, language, religion, or any other status. Human rights include the right to life and
liberty, freedom from slavery and torture and many more. Human rights are moral principles
and norms that describe certain standards of human behaviour and are regularly protected as
natural and legal rights in international law.

Office of the high commissioner for Human Rights of UN defines human rights as:

“The rights which are inherent to all human beings, whatever one’s language or any other
status, all are equally entitled to these human rights without discrimination.”

3.1 International human rights law

The main articulation of international human rights law is found in various human rights
treaties and other international instruments. The core documents are the 1948 Universal
Declaration of Human Rights (UDHR) and two multilateral treaties, the 1966 International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR). As a General Assembly resolution, the
UDHR is technically non-binding under international law but is generally accepted as
articulating the obligations undertaken by UN Member States under the UN Charter. The two
Covenants are legally binding on States that have ratified them, and they are in fact widely
ratified (if not equally widely respected in practice).

3.2 Terrorism
At its most general level, the term “terrorism” denotes the (generally criminal) use of
politically motivated violence. It is typically used to refer to “a special form or tactic of
fear-generating, coercive political violence” as well as “a conspiratorial practice of

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calculated, demonstrative, direct violent action without legal or moral restraints, targeting
mainly civilians and non combatants, performed for its propagandistic and psychological
effects on various audiences and conflict parties.

Now in the present case, Indiana was regularly facing terror attacks from Pafiana and they
were violating the rights of the civilians by indulging itself in the killings of many innocents
especially in the Kudritan.

Article 6 of the ICCPR and Article 3 of UDHR confers the right to life. The killing of
innocent protestors by the Pafiana troops is a clear violation of ICCPR and UDHR which
guarantees right to life to civilians.

Also there is a duty to protect civilians during an armed conflict. By the way of Article 51(1),
Article 51(2), and Article 51(3), the Additional Protocol I aim to protect the civilians during
an armed conflict.

The law of humanitarian law seek to extend protection a wide range of person but the basic
distinction drawn has been between combatants and those who are not involved in actual
hostilities common article 2 of the Geneva Convention provides that the Convention shall
apply 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 recognised by
them.

The Fourth Geneva Convention is concerned with the protection of civilians in time of war
and builds upon the Hague Regulations (attached to Hague Convention IV on the Law and
12
Customs of War on Land). Under article 50(1) of Protocol I, 1977, a civilian is defined as
13
any person not a combatant, and in cases of doubt a person is to be considered a civilian.

12
See e.g. Green, Armed Conflict, chapters 12 and 15; UK, Manual, Chapters 9 and 11; E. Benvenisti, The
International Law of Occupation, Princetion, 2004 (with new preface), and S. Wills, ‘Occupation Law and
Multi-National Operations: problems and Perspectives’, 77 BYIL, 2006,p. 256. The Hague Regulations have
become part of customary International law: see Construction of a Wall, ICJ Reports, 2004, pp. 136, 172; 129
ILR, pp. 37, 91.
13
As defined in article 4 of the Third Geneva Convention, 1949 and Article 43, Protocol I, 1977, above, p. 1172.
Note, however, the obligation contained in the Optional Protocol to the Convention on the Rights of the Child
on the involvement of children in armed conflict, 25 may 2000, to ensure that children under the age of eighteen
do not take part in hostilities.
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 ISSUES 4
4. USE OF CHEMICAL, BIOLOGICAL OR NUCLEAR WEAPON
AGAINST THEN IN CONTRAVENTION OF CTBT.

4.1 EVERY PERSON HAS INHERENT RIGHT OF RIGHT TO LIFE

Every human being has the inherent right to life. This right shall be protected by law. No one
14
shall be arbitrarily deprived of his right . The threat or use of nuclear weapons is
"incompatible with respect for the right to life" and "may amount to a crime under
15
international law,"

According to the General Comment (paragraph 3), the Right to Life, as codified in Article 6
of the Covenant, is an ‘entitlement of individuals to be free from acts and omissions that are
intended or may be expected to cause their unnatural or premature death, as well as to enjoy a
life with dignity’, It is the supreme right from which no derogation is permitted even in
situations of armed conflict and other public emergencies. The right to life has crucial
importance both for individuals and for society as a whole. It is most precious for its own
16
sake as a right that inheres in every human being, but it also constitutes a fundamental right ,
whose effective protection is the prerequisite for the enjoyment of all other human rights and
whose content can be informed and infused by other human rights.

3. The right to life is a right which should not be interpreted narrowly. It concerns the
entitlement of individuals to be free from acts and omissions intended or expected to cause
their unnatural or premature death, as well as to enjoy a life with dignity. Article 6 guarantees
this right for all human beings, without distinction of any kind, including for persons
suspected or convicted of even the most serious crimes.

14
Article 6 (para 1) of the International Covenant on Civil and Political Rights.
15
UN Human Rights Committee's new General comment No. 36 (2018) on Article 6 of the International
Covenant on Civil and Political Rights (ICCPR), on the right to life, adopted on October 30, 2018
16
General Comment 14, para. 1.
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4. Paragraph 1 of article 6 of the Covenant provides that no one shall be arbitrarily deprived
of his life and that the right shall be protected by law. It lays the foundation for the obligation
of States parties to respect and to ensure the right to life, to give effect to it through
legislative and other measures, and to provide effective remedies and reparation to all victims
of violations of the right to life.

UDHR, ARTICLE 3 everyone has a right to life liberty and security of person

4.2 THREAT OF USE OF CHEMICAL, BIOLOGICAL OR NUCLEAR WEAPON IS

A CRIME UNDER INTERNATIONAL LAW
Threat or use of nuclear weapons and other weapons of mass destruction (WMD) are a
violation of the Right to Life, General Comment 36 affirms an obligation of States Parties to
the Covenant to end the production of WMD, destroy existing stockpiles and provide
adequate reparation to victims of their testing or use.

Paragraph 66, General Comment No 36 on article 6 of the ICCPR

The threat or use of weapons of mass destruction, in particular nuclear weapons, which are
indiscriminate in effect and are of a nature to cause destruction of human life on a
catastrophic scale is incompatible with respect for the right to life and may amount to a crime
under international law.

States parties must take all necessary measures to stop the proliferation of weapons of mass
destruction, including measures to prevent their acquisition by non-state actors, to refrain
from developing, producing, testing, acquiring, stockpiling, selling, transferring and using
them, to destroy existing stockpiles, and to take adequate measures of protection against
accidental use, all in accordance with their international obligations.

They must also respect their international obligations to pursue in good faith negotiations in
order to achieve the aim of nuclear disarmament under strict and effective international
control and to afford adequate reparation to victims whose right to life has been or is being
adversely affected by the testing or use of weapons of mass destruction, in accordance with
principles of international responsibility.’

ACT OF PAFIANA IS IN CONTRAVENTIONTO CTBT

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WHAT IS THE CTBT?

The Comprehensive Nuclear-Test-Ban Treaty (CTBT) is the Treaty banning all nuclear
explosions ​- everywhere, by everyone.​ The Treaty was negotiated at the Conference on
Disarmament in Geneva and adopted by the United Nations General Assembly.

The CTBT is the last barrier on the way to develop nuclear weapons. It curbs the
development of new nuclear weapons and the improvement of existing nuclear weapon
designs. The Treaty also helps prevent human suffering and environmental damages caused
by nuclear testing.

In the present case, Pafiana has violated the law mentioned under CTBT by giving a direct
threat to the Indiana for attack through chemical, biological or nuclear weapon.

The PM of Pafiana held a press conference and then decided to threat Indiana by chemical,
biological or nuclear weapon attack which clearly is a violation of international law as well as
the human rights of the people of Indiana.

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 ISSUES 5
5.STATE OF PAFIANA HAD VIOLATED THE INTERNATIONAL
LAW BOTH CUSTOMARY AND CONVENTIONAL BY NOT
RECOGNISING THEMILITANT OUTFITS AND
CLANDESTIELYSUPPORTING THEM IN TAKING THE OFFICIAL
HOSTAGES

5.1 International Convention Against the Taking of Hostages,

17
Taking of hostages is an offence of grave concern to the international community and that,
in accordance with the provisions of this Convention, any person committing an act of
18
hostage taking shall either be prosecuted or extradited, ​A hostage is a person seized by a
criminal abductor in order to compel another party such as a relative, employer, law
enforcement or government to act, or refrain from acting, in a certain way, often under threat
of serious physical harm to the hostage(s) after expiration of an ultimatum.

5.1.1 WHAT IS HOSTAGE TAKING

International Convention Against the Taking of Hostages, defines hostage taking as “​If any
person who seizes or detains and threatens to kill, to injure or to continue to detain a hostage
in order to compel a State, an international intergovernmental organization, a natural or
juridical person, or a group of persons, to do or abstain from doing any act as an explicit or
implicit condition for the release of the hostage. Any person also commits such an offence if
that person attempts to commit an offence as set forth above or participates as an accomplice
of anyone who commits or attempts to commit an act of hostage-taking.​ ”

5.1.2 PRISONERS OF WAR (POWs)

17
International Convention Against the Taking of Hostages, G.A. Res. 146 (XXXIV), U.N. GAOR, 34th Sess.,
Supp. No. 46, at 245, U.N. Doc. A/34/46 (1979), entered into force June 3, 1983.
18
​International Convention Against the Taking of Hostages, G.A. Res. 146 (XXXIV), U.N. GAOR, 34th Sess.,
Supp. No. 46, at 245, U.N. Doc. A/34/46 (1979), entered into force June 3, 1983.

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The rules protecting prisoners of war (POWs) are specific in III Geneva Convention of 1949.
According to this convention, ​"POWs are usually members of the armed forces of one of the
parties to a conflict who fall into the hands of the adverse party,​"

5.2 CUSTOMARY AND CONVENTIONAL LAWS RELATED TO PROHIBITION

OF HOSTAGE TAKING UNDER INTERNATIONAL LAWS
5.2.1 GENEVA CONVENTION
The Geneva Conventions are a set of international treaties agreed to between 1864 and 1949
that establish the standards of international law for humanitarian treatment in case of war.
The conventions ensure that warring nations conduct themselves in a humane way with
non-combatants such as civilians and medical personnel, as well as with combatants no
longer actively engaged in fighting, such as prisoners of war and wounded or sick soldiers.

The provisions of the article state that the Geneva Conventions apply to all cases of
international conflict, The Conventions also apply to all cases of armed conflict between two
19
or more signatory nations, even in the absence of a declaration of war. They also apply to a
signatory nation even if the opposing nation is not a signatory, but only if the opposing nation
accepts and applies the provisions of the Conventions.

5.2.2 COMMON ARTICLE 3

Common article 3 reflected customary international law, applicable to both international and
20
non-international armed conflict . Common article 3 provides in relevant part:

Persons taking no active part in the hostilities, including members of armed forces who have
laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or
any other cause, shall in all circumstances be treated humanely, without any adverse
distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar
criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:

19
Common Article 2: Relating to international armed conflicts, Geneva Convention III
20
Prosecutor v. Radovan Karadzic case
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(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.

In case of ​Prosecutor v. Redovan Karadzic​, appeal chamber recalls that under common
article 3 detention of a combatant during armed conflict automatically rendered him or her
hors de combat, and that taking of any individual hostage is among the acts which “are and
21
shall remain prohibited at any time in any place whatsoever” common article 3 thus indicate
that the prohibition of hostage taking is absolute and without any exception. The appeal
chamber further recall that “ any act of hostage taking involving prisoners of war is violation
of third Geneva convention and the main point confirming the relevance of the prohibition of
hostage taking under 3​rd Geneva convention is the very existence of common article 3, which
22
expresses the shared principle which govern the convention.

Article 4 of the Third Geneva Convention protects captured military personnel, some
guerrilla fighters, and certain civilians. It applies from the moment a prisoner is captured until
he or she is released or repatriated.

According to Article 118 of the third Geneva Convention​, prisoners of war shall be
released and repatriated without delay when the hostilities between the two nations end and
any unjustifiable delay in the repatriation of the prisoner of war will be a grave breach of the
Protocol.
23
5.3 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW
Under Rule 96 the taking of hostages is prohibited.

21
footnote
22
footnote
23

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 24
Common Article 3 of the Geneva Conventions prohibits the taking of hostages. It is also
25
prohibited by the Fourth Geneva Convention and is considered a grave breach thereof
However in addition to the provisions in the Geneva Conventions, practice since then shows
that the prohibition of hostage-taking is now firmly entrenched in customary international law
and is considered a war crime.

The prohibition of hostage-taking is recognized as a fundamental guarantee for civilians and

26
persons hors de combat in Additional Protocols I and II. Under the Statute of the
International Criminal Court, the “taking of hostages” constitutes a war crime in both
27
international and non-international armed conflicts .Hostage-taking is also listed as a war
crime under the Statutes of the International Criminal Tribunals for the former Yugoslavia
and for Rwanda and of the Special Court for Sierra Leone

Instances of hostage-taking, whether in international or non-international armed conflicts,

28
have been condemned by States .In the Karadžić and Mladić case in 1995 before the
International Criminal Tribunal for the former Yugoslavia, the accused were charged with
grave breaches for taking UN peacekeepers as hostages. In its review of the indictments, the
29
Tribunal confirmed this charge. In the Blaškić case in 2000, the Tribunal found the accused
guilty of the taking of hostages as a violation of the laws and customs of war and the taking
30
of civilians as hostages as a grave breach of the Fourth Geneva Convention. In the Kordić
and Čerkez case before the Tribunal in 2001, the accused were found guilty of the grave
31
breach of taking civilians hostage.

The ICRC has called on parties to both international and non-international armed conflicts to
refrain from taking hostages. International human rights law does not specifically prohibit
“hostage-taking”, but the practice is prohibited by virtue of non-derogable human rights law

24
Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 32, § 2046).
25
Fourth Geneva Convention, Article 34 (ibid., § 2047) and Article 147 (ibid., § 2048).
26
Additional Protocol I, Article 75(2)(c) (adopted by consensus) (ibid., § 2050); Additional Protocol II, Article
4(2)(c) (adopted by consensus) (ibid., § 2051).
27
ICC Statute, Article 8(2)(a)(viii) and (c)(iii) (ibid., § 2054).
28
See, e.g., the statements of Germany (in the context of the conflict in Nagorno-Karabakh) (ibid., § 2198), Italy
(ibid., § 2199), Pakistan (in the context of the conflict in Kashmir)
29
ICTY, Karadžić and Mladić case, Initial Indictment and Review of the Indictments
30
ICTY, Blaškić case, Judgment (ibid., § 2232).
31
ICTY, Kordić and Čerkez case, Judgment
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 because it amounts to an arbitrary deprivation of liberty (see Rule 99). The UN Commission
on Human Rights has stated that hostage-taking, wherever and by whoever committed, is an
32
illegal act aimed at the destruction of human rights and is never justifiable. In its General
Comment on Article 4 of the International Covenant on Civil and Political Rights
(concerning states of emergency), the UN Human Rights Committee stated that States parties
may “in no circumstances” invoke a state of emergency “as justification for acting in
violation of humanitarian law or peremptory norms of international law, for instance by
taking hostages”.

In the present case, Pafiana has violated the international law both customary and
conventional law by not recognising the militants outfits and clandestinely supporting them to
take the Indiana as hostages.

On the evening of 24th October 2018, the intelligence of Indiana was able to intercept an
encrypted message regarding a possible attack on an ​Army camp in the Kudritan re​gion and
its surrounding area. Before Indiana army could heighten their vigil, on the 25th October the
army camp at Jahanumbad in Kudritan region situated within the radius of 7 Kms from the LOC
was ​attacked by a group of infiltrators from Pafiana and a gun battle ensued resulting in loss of lives of
about 10 civilians and destruction of the army camp. In retaliation, the Indiana army counter
attacked to prevent the infiltrators from causing severe damages but the infiltrators were able to
retreat without casualties on their side and were able to take three army officers of Indiana as hostage with
them.

Therefore, clearly Pafiana has violated the international law,

PRAYER

32
UN Commission on Human Rights,
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