The Case Concerning Operation Support Democracy1. Apartas, a developing state with a population of about 50 million people, was founded in 1698 at the Council of Luxemar (its present-day capital). 2. Ristarchia, a federal state with a developing industrial economy and a population of almost 90 million people, is located to the immediate north of Apartas. Ristarchia’s economy has blossomed in recent years, in large part due to its close diplomatic and trade relations with three neighboring countries: Llegoria, Verolutio, and Plumbland. 3. In 1990, Ristarchia, Llegoria, Verolutio, and Plumbland created the Northern Nations International Organization (“the NNI”), a regional organization devoted to strengthening economic cooperation and political ties among its members. The Treaty Establishing the NNI (attached at Annex I) guarantees free movement across borders for citizens of NNI Member States, and also contains a mutual defense pact among them. 4. In November 2000, Apartas Senator Jim Brown was elected President by the largest margin of the popular vote in the history of Apartas. His campaign platform proposed applying for membership in the NNI. In January 2001, representatives of Brown’s government met with the NNI Council which, after several months of study, prepared a list of preconditions for Apartas’s application for membership. 5. Over the next five years, Brown’s government instituted a series of measures designed to meet these requirements. The measures included restrictions on the rights of Apartas’s historically strong labor unions and financial and tax incentives for businesses from NNI Member States investing in Apartas. In addition, although not required by the NNI Council, Brown also instituted an “open borders policy” whereby citizens of NNI Member States would be free to enter and reside and work in Apartas. Several thousand citizens of NNI Member States, chiefly from Ristarchia, moved to major cities in Apartas after the policy was implemented. By 2006, labor unions, opposition political parties, and nationalist groups within Apartas were routinely organizing strikes and demonstrations to protest these measures. 6. As years went by, nationalist and anti-Ristarchian sentiments within Apartans strengthened, and opposition to President Brown’s pro-NNI program grew. Dissident factions in Apartas staged several nationwide strikes throughout 2010, calling for Brown’s resignation. Despite the social unrest, a poll conducted by the Apartan Office for National Statistics in November 2010 indicated that 55% of Apartans considered the policies of Jim Brown’s government to be “very good” or “good” and that 60% approved of the government’s efforts to join the NNI. 7. President Brown declared his candidacy to stand for a third term in the elections to be held in September 2011. In the wake of the strikes, however, on August 10, 2011, Brown invoked the emergency powers granted to the President under the Apartan Constitution, announcing that he was postponing the election for one year “in the expectation that order can be restored during that time.” Relying on the same constitutional provision, on August 13, President Brown ordered the Apartan military to begin armed patrols in major urban areas “to prevent and quell civil unrest.” 8. On August 15, 2011, all of the major newspapers in Apartas published an “Open Letter” to President Brown, from Generalissimo Albert Duchius, Field Marshal of the Apartian armed forces. Gen. Duchius described the suspension of the September elections as “a clear attempt to subvert the will of the people,” and called upon President Brown to restore the elections. His letter concluded: Mr. President, when you took your oath of office, you swore to uphold the democratic principles of this great nation. All Apartan soldiers are trained to understand that, in a democracy, we who proudly wear our uniforms are required to implement the decisions of elected political officials without question. But, President Brown, although we respect you as our Supreme Commander-in-Chief, we will not carry out your order of August 13. We will not take up arms against our fellow Apartans. 9. President Brown immediately fired Gen. Duchius, withdrew his military commission, and ordered his arrest on charges of insubordination and sedition. On the morning of August 16, 2011, senior officers of the national police arrived at Duchius’s apartment in Luxemar, and were turned away by armed soldiers loyal to him. 10. That evening, army units loyal to Duchius forcibly entered the Presidential Palace and other government installations. President Brown and his ministers fled during the night to Ristarchia. The following morning, Duchius proclaimed himself “interim president” of Apartas, and declared that he would stay in power for as long as necessary to reestablish democratic institutions and the rule of law in the country. Restoring order to our streets and cities requires that we stop the headlong rush toward irreversible change until we are sure that this reflects the will of the people. It is not clear that the Apartan people are committed to NNI membership, at least until some basic questions are answered. So long as I am interim president, Apartan concerns come first. He immediately suspended the open borders policy, the tax and other incentives extended by President Brown to nationals of NNI Member States, and other pro-NNI measures instituted by Brown. 11. In the face of widespread and growing opposition to the interim government, Duchius declared a state of emergency and, pursuant to emergency powers granted by law, dissolved parliament. In a press conference held on August 18, 2011, Duchius stated that the dissolution had been necessary to “ensure stability and maintain public order.” He also assured the citizens of Apartas that “new elections [would] be called soon” and that, in any event, “all civil rights and liberties [would] be respected.” 12. Several parliamentarians belonging to Brown’s party also fled to Ristarchia. Forty Apartan Ambassadors, including the Permanent Representatives to the United Nations and to the Kingdom of the Netherlands, renounced Duchius and declared their allegiance to Brown. Duchius’s government successfully established order in over 90% of Apartan territory (comprising approximately 80% of the population), and the armed forces in and around Luxemar were loyal to Duchius. However, approximately 800 members of the army’s 44th Regiment, based in outlying regions, remained loyal to Brown and established bases in two villages in the north of Apartas. The Regiment is a lightly-armed force ordinarily tasked with patrolling Apartan borders. Several hundred civilian supporters of Brown migrated to those villages, under the protection of the pro-Brown forces. 13. Duchius ordered more than 2,000 members of the army elite Special Mission Unit (SMU) to the two villages to confront the 44th Regiment. The heavily-armed SMU troops demanded that the pro-Brown forces surrender and threatened to arrest any soldier who refused to lay down his or her arms. No troops loyal to Brown surrendered and no arrests were carried out. Small-scale fighting between the SMU and pro-Brown forces began early in the morning on August 20, 2011, and continued for the next three weeks. 14. Duchius’s assault upon the pro-Brown units was condemned by several nations. On August 20, 2011, Brown announced that he and his ministers had formed what he called a “government in exile” in Ristarchia. Over the next two days, Brown held talks with the Ristarchian government, in which he urged to intervene to end the fighting and to restore his government in Apartas. On August 22, Ristarchia introduced a resolution before the NNI Council – then chaired by a representative of Llegoria – which began, “Given that the tragedy in Apartas derives in some measure from that nation’s desire to join the NNI, it is appropriate that any response be undertaken by the NNI rather than by any individual Member State.” The Council unanimously passed the resolution, which recognized Brown as the “lawful President of Apartas,” condemned “the military coup d’état,” and urged “a prompt cessation of military activities and restoration of democracy.” In the following days, each NNI Member State and 27 other nations formally announced that they would conduct diplomatic relations only with the Brown regime. As of the date of submission of this Compromis, 14 nations recognize Duchius’s government. 15. On August 23, 2011, Duchius delivered a public statement denouncing the NNI Council resolution. He declared, “This resolution is an unjustified interference in the internal affairs of Apartas. Despite former President Brown’s continuing efforts to subordinate our nation and its future to the NNI, in my government, Apartan concerns come first.” 16. Upon the request of Ristarchia and with the support of the other NNI Members, on August 29, 2011, the United Nations General Assembly adopted Resolution A/RES/65/598, by a vote of 109 votes in favor and 16 against, with the remaining Member States abstaining. The resolution condemned “the coup d’état against the democratically elected government of Apartas” and called upon “the Security Council to consider immediate action under Chapter VII of the Charter of the United Nations to preserve peace and restore the constitutional order of Apartas.” 17. Neither the pro-Brown nor pro-Duchius forces had made any progress in the conflict in the north. On September 10, 2011, the SMU launched artillery strikes against the two villages still loyal to Brown. Sixty soldiers and 80 civilians were killed and hundreds more were wounded during shelling in the region over the next three days, and SMU ground-force commanders indicated their immediate intention to enter the villages. Brown and his representatives urged the NNI Council to take immediate steps to “prevent an imminent humanitarian crisis.” 18. On September 15, 2011, Ristarchia proposed and the NNI Council unanimously approved “Activation Orders” for air strikes against “military and strategic assets in Apartas that at once threaten civilian lives and perpetuate the illegal exercise of power by the current regime.” At Ristarchia’s suggestion, the Council appointed Major-General Alvaro Duran, a Ristarchian national, to head the campaign as Force Commander. (Note: In addition to his position as Force Commander of NNI Operation Support Democracy, Major-General Alvaro Duran is a reserve officer in the Ristarchian air force.) 19. According to the terms of the Activation Orders, the Northern Nations Organization launched “Operation Support Democracy” before dawn on September 18, 2011. The operation consisted of around-the-clock air strikes against verified military installations in and around Luxemar. Operation Support Democracy was conducted almost entirely by the Ristarchian Air Force, as Ristarchia is the only NNI Member State with airborne military capability of any significant size. Pursuant to the Activation Orders, all operational decisions were to be taken by Major-General Alvaro Duran, under the direction of the NNI Defense Committee. 20. Within days, Operation Support Democracy resulted in the destruction of 12 of the 15 military installations near Luxemar and the deaths of 50 Apartan soldiers. There were no civilian casualties and only incidental damage to non-military buildings. The Strafel Institute, an independent military think-tank with long experience in the region and experts on the ground in Luxemar, reported on September 25, 2011, “The Apartan military has effectively been destroyed. It cannot fight back and it cannot defend itself.” On the same day, the United Nations Security Council met in emergency session to discuss what it called “the escalating cycle of violence in Apartas.” 21. On October 1, 2011, the United Nations Security Council unanimously adopted a resolution condemning Operation Support Democracy. Although an early draft of the resolution would have supported stronger Council action and invoked Chapter VII of the UN Charter, the resolution simply noted that neither NNI nor any of its Member States had provided advance notice to the Council as required by the United Nations Charter, called upon the NNI Member States to end the Operation, and indicated that the Security Council would remain seized of the matter. 22. The following day, Ristarchian President Santiago in compliance with the UN Security Council resolution ordered an immediate grounding of the Ristarchian air force. That evening, the NNI Council formally suspended Operation Support Democracy. 23. In the following weeks, Apartas filed an application with the Registry of the International Court of Justice, instituting proceedings against Ristarchia. Duchius signed the Application himself, in the capacity of “Interim President of Apartas.” The Application asserted that the NNI attacks were contrary to international law, and that Ristarchia was internationally responsible for those attacks. 24. Upon receiving the Application, Ristarchian Attorney General Bateau issued a statement declaring that Ristarchia would not consent to the jurisdiction of the Court. She explained: In accordance with our treaty obligations, Ristarchia would willingly accede to a request to have the International Court of Justice resolve a dispute between ourselves and Apartas were it presented by the proper authorities. But this request does not come from the government of Apartas: it comes from a gang of military officers, elected by no one and coming to power by force, masquerading as the government. Only the legitimate government, now in exile, may claim to represent Apartas before the Court or any other international body. Moreover, it is evident that the Court cannot give a ruling on a dispute concerning the action taken by NNI, an international organization possessing a legal personality distinct from that of its members. Only States may be parties to disputes before the Court, according to the terms of its Statute. 25. Facing increasing public pressure, Ms. Bateau announced on November 1, 2011, that Ristarchia would engage Apartas before the International Court of Justice, on the condition that Apartas withdraw its Application and instead agree jointly to submit to the Court all claims that the parties might have against one another. She specified that any such joint submission would be “without prejudice to our position regarding whether Duchius may act on Apartas’s behalf, which we intend to litigate fully in the case.” Apartaswithdrew its application on November 20, 2011, and over the course of the next several months, the parties met, negotiated and ultimately agreed to this Compromis. 26. Apartas and Ristarchia have been parties to the Vienna Conventions on Diplomatic and Consular Relations since 1966; to the Vienna Convention on the Law of Treaties since 1970; In addition, Apartas and Ristarchia have been parties to the Geneva Conventions of 1949 since 1968 and 1976, respectively, to both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights since 1971 and 1976, respectively. Both states were admitted to the United Nations in 1966. Apartas and Ristarchia are not parties to any other relevant bilateral or multilateral treaty. 27. Apartas requests the Court to adjudge and declare that: (a) the Court may exercise jurisdiction over all claims in this case, since the Duchius government is the rightful government of the Kingdom of Apartas; (b) Ristarchia is responsible for the illegal use of force against Apartas in the context of Operation Support Democracy; 28. Ristarchia requests the Court to adjudge and declare that: (a) the Court is without jurisdiction over the Applicant’s claims, since the Duchius regime and its representatives cannot appear before this court in the name of the Kingdom of Apartas; (b) the use of force against Apartas in the context of Operation Support Democracy is not attributable to Ristarchia, and in any event, that use of force was not illegal;
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