International Law Moot Court Competition (Asia Cup 2004) Case concerning damages of a civilian in an occupied territory

トップページ＞報道・広報＞イベント・募集案内

International Law Moot Court Competition (Asia Cup 2004)
Case concerning damages of a civilian in an occupied territory^※
Homeria v. Pandem

Dondo, Pandem and Homeria are members of the United Nations. They are parties to the Geneva Conventions of August 12, 1949 and so called the Hague Regulations of 1907. Dondo and Pandem are also parties to two Protocols Additional to the Geneva Conventions.
   The border between Pandem and Dondo runs from north to south, which extends about 800 kilometers. The borderline has been recognized internationally. Kafua area in the south of Pandem abuts on Dondo with 200 kilometers of the boundary. Dondo is dissatisfied with the possession of Kafua by Pandem since more than half of the population residing in the area is of Dondo origin.
   Dondo invaded into Kafua area on 14 January 2003 and placed the area under its control. Pandem fought to repel Dondo forces, while it crossed the northern part of the border with Dondo and placed almost the same size of the territory as Kafua area under its control. They fought to regain the control over the respective occupied territory, but were not successful in expelling the invaders.
   Homeria maintains friendly relationships with neither Pandem nor Dondo, but believed to have rather closer ties with Dondo than Pandem. Homeria declared that it would not support either party of the clash between Pandem and Dondo beginning 14 January 2003. Embassies of several countries including Homeria evacuated from the capitals of both Pandem and Dondo, after the commencement of military operations.
   Soon after the beginning of hostilities between Dondo and Pandem, the Security Council of the United Nations took up the clash between Pandem and Dondo on the agenda. Many of the Council members criticized Dondo, but Homeria opposed to adopt a resolution criticizing Dondo. The resolution adopted on 17 January 2003 did not criticize Dondo, but contained the following phrases:
"Deeply concerned about the developing situation between Dondo and Pandem,
Calls upon Dondo and Pandem to refrain immediately from any further use of force and to settle their disputes by peaceful means in conformity with principles of justice and international law."
In spite of the adopted resolution, Pandem and Dondo would not cease fire, and reproached each other on account of aggression and persecution of inhabitants in each occupied territory.
   The Security Council subsequently adopted the resolution on 17 February 2003, which included the following phrases:
"Deeply concerned about the continuing conflict between Dondo and Pandem,
Noting that both parties are under the obligation of international humanitarian law, in particular, the provisions of the Geneva Conventions of August 12, 1949 and two Protocols Additional to the Geneva Conventions,
Urges them to accept any appropriate offer of mediation or conciliation or to resort to regional agencies or arrangements or other peaceful means of their own choice."
Even after adoption of the resolution dated 17 February 2003, Pandem and Dondo did not cease fire.
Under these circumstances, the Security Council adopted the resolution on 3 March 2003, which included the following phrases:
"Acting under Articles 39 and 40 of the Charter,
Demands that Dondo and Pandem observe an immediate cease-fire, discontinue all military actions and withdraw all forces to the internationally recognized boundaries without delay."
Two days after the resolution, the Secretary-General of the United Nations requested the two parties to begin direct talks, regarding the implementation of the Resolution of 3 March 2003 as the sole basis for settlement of the conflict. Two days after the request of the Secretary-General, the President of Pandem informed him that Pandem would accept the Resolution of 3 March 2003, pointing out the importance it attached to saving lives of innocent people. On the other hand, Dondo would not respond to the request of the Secretary-General; the armed conflicts continued thereafter. Against such backdrop, Pandem expanded the occupied area inside Dondo territory so far as to place Stravia area under its control.
   There was a dam across a river in Stravia area, which was constructed in 1994 according to national development project of Dondo, as the government placed highest priority on industrial development. The construction of the dam was carried out against objection expressed both within and outside of Dondo. The opponents of the dam project claimed that it would destroy local environment of the country. A hydroelectric power plant was built near the dam, which supplied electricity to factories including munitions factories. Along the river where the dam was constructed, agricultural and stock farms were operated, making use of irrigation water controlled with the dam. One hundred thousand inhabitants were in Stravia area when Pandem occupied the area. Very few, however, lived along the riverside prior to the construction of the dam in question.
Pandem administered the occupied area by making use of the local administration system under the Dondo government. Pandem made the system subject to the occupation authority and authority was led by the Supreme Commander of the occupying force.
   Toward the end of May, about two months after invasion to Stravia, Pandem was forced to retreat from the area, due to the offensive made by Dondo. In the retreat from Stravia, Pandem announced its intention to destroy the hydroelectric power station to cut the supply of electricity into the area. The Supreme Commander of Pandem occupying force warned the inhabitants in Stravia to be evacuated to safe places within 24 hours, in danger of blasting to be operated at noon, 26 May 2003.
   Mr.Jade, a national of Homeria, was permitted to stay in Dondo with his family to run an enterprise in Dondo since 1995, one year after the completion of the dam construction in Stravia. He bought a piece of land along the river which was ten times larger than that of average local inhabitants, and conducted a mechanized agricultural and stock farm. His management was so successful as to cover most of the tax paid by all the inhabitants in Stravia. After the breakout of war between Dondo and Pandem, he did not leave Dondo, although some of nationals of Homeria staying in Dondo left.
   After the occupation by the Pandem forces started in Stravia area, a number of small armed groups which were composed primarily by the local inhabitants were organized and launched attacks against the occupying forces. The occupation authority searched Mr. Jade's house, suspecting that he was a sympathizer with the groups.
   Soon after the search by the occupation authority, Mr. Jade changed his mind to return to his home country. He went to the office of the Supreme Commander of occupying force and sought permission to leave Dondo. The occupation authority instructed him that he should make an application at the local administration office in accordance with the procedure designated by Dondo law. He followed the instruction and made an application for exit permit at the local administration office.
   At the time when Mr.Jade intended to leave Dondo, he was 48 years old and had a wife, two children and his mother. His family was ready to leave the country by taking a ship of a state not being a party to the armed conflict at a port of Dondo. The port was controlled by Pandem forces and the ship was bound for a port of Homeria. Mr.Jade urged the local administration to issue the permit, but was replied that the occupation authority made no instruction with regard to that matter. As a consequence, Mr.Jade had to revisit the office of the Supreme Commander and asked to issue the permission as early as possible, but was instructed in the same way as before. About two months after application for departure by Mr.Jade was filed, the Pandem forces in Stravia notified the destruction of the hydroelectric power station. To escape the danger from the destruction, Jade family evacuated to a safety place with the other inhabitants.
   At thirteen o'clock 27 May 2003, 25 hours after the warning, Pandem army destroyed the hydroelectric power station completely, and evacuated the Stravia area forthwith. As a result of the destruction of the power station, dam was damaged and irrigation works broke down. The flood caused by the destruction of the dam washed away most of the local farmland including the major part of Mr.Jade's.
The explosion caused fire at woods near the shelter. The fire killed two hundred lives of inhabitants including the mother of Mr.Jade. After the retreat of Pandem forces, Dondo restored its control over Stravia. However, the damage caused by the operation of Pandem forces in Stravia area in the course of their retreat was too severe to be recovered in a short period; farmland was filled with sediments, houses collapsed and electric power supply cut off throughout the area.
Ten days after the destruction of the dam in Stravia, on 7 June 2003, the President of Dondo declared to accept the cease-fire requested by the Secretary-General of the United Nations. The armistice agreement was agreed between Dondo and Pandem on the basis of the Resolution of 3 March 2003. The agreement had the provisions on three main points:(1) full implementation of the Resolution, (2) start of the negotiations for final settlement of their borderline, and (3) mutual relinquishment of claims for damages made in every course of the present war. Dondo and Pandem withdrew their respective troops out of each other's territory before armistice agreement came into effect on 20 July 2003.
   Mr.Jade and the members of his family survived the war but were compelled to live at an evacuation camp, as he lost his farmland. They were permitted to return to Homeria by the Dondo authority, before the implementation of the armistice agreement. Mr.Jade filed a law- suit to the local court of Pandem seeking reparation for damages caused by illegal acts taken by Pandem during the war against Dondo, in January 2004, but lost the case. The Government of Homeria protested Pandem for not compensating the damages Mr. Jade suffered in Dondo from the occupation by Pandem. The Government of Pandem replied that it had no obligation to compensate for damages suffered by Mr.Jade during his stay in Dondo. Homeria therefore submitted the dispute with Pandem to the International Court of Justice (ICJ) on damages of Mr. Jade suffered in the course of armed conflict between Pandem and Dondo from 14 January to 20 July 2003, in accordance with paragraph 2, article 36 of the Statute of the International Court of Justice.
   Applicant, Homeria, requested that the ICJ adjudge and declare as follows:
"Pandem has an obligation to pay to Homeria, in violation of international humanitarian law in the period while Pandem placed Stravia under its occupation in the course of an armed conflict from 14 January 2003 to 20 July 2003, reparations comparable to damages suffered by Mr.Jade, a national of Homeria."
   Defendant, Pandem, requested that the ICJ adjudge and declare as follows:
"Pandem has no obligation to pay to Homeria reparations comparable to damages suffered by Mr. Jade, a national of Homeria, as it does not violate international humanitarian law in the period while Pandem placed Stravia under its occupation in the course of an armed conflict from 14 January 2003 to 20 July 2003."

※This case is not intended to be a description of any actual situation. The copyright for the case belongs to the organizer of the International Law Moot Court Competition (Asia Cup 2004).

BACK / 目次