Following their win at the Japan National Round of the 2021 ICRC International Humanitarian Law (IHL) Moot Court Competition, the team of three undergraduate students Jenna Stallard, Himena Miyashita and Yuna Naoi went on to be semi-finalists at the regional rounds of the same competition—the 20th Red Cross IHL Moot 2022.
(L-R) Yuna Naoi, Himena Miyashita,
Prof. Ai Kihara-Hunt and Jenna Stallard. (Aaron Sheppard)
The largest inter-university competition of its kind in the Asia-Pacific region was organised by the Hong Kong Red Cross and the Regional Delegation for East Asia of the ICRC, together with the Chinese University of Hong Kong and the University of Hong Kong. A total of 24 teams from across the region met in virtual courtrooms to present their oral pleadings to panels of judges comprised of professionals from international organisations, militaries, academia, and many other fields that work with IHL.
Of the many participating teams, the University of Tokyo team finished in the top four after extensive research on the laws relevant to this year’s moot problem, which dealt with the contemporary issue of technologies being used in the context of armed conflicts. From mobile applications being used to restrict the movement of people to their homes, to weapons equipped with Artificial Intelligence (AI) being deployed, the research process was especially challenging for these topics because of the relative lack of precedents that could be referred to compared to other “traditional” issues that arise in armed conflicts.
Could you share a little more about what topics you dealt with during the competition?
Jenna Stallard: There were some interesting issues about what we can call an occupation, especially in situations where there are no troops on the ground. These situations are bound to occur more as states develop new ways to effectively control territory through technology. I also dealt with count three, which regarded attacking protected objects; in this case, a church and sanitorium. What was most interesting about this count was the criminal liability. Although the defendant, Barcino, only developed the technology that was then used by the military, I was prosecuting for direct responsibility. I had to show that although Barcino did not push the button or order for these specific attacks to happen, she was the principal perpetrator. This raises questions about how we should hold those accountable who did not directly order attacks, but who still bear significant responsibility in the making of the crime.
Himena Miyashita: I was the 2nd Mooter (2nd speaker) for the team, and I worked with one count regarding the unlawful confinement of people and another count regarding the use of armoured vehicles equipped with an AI targetting system. The count on unlawful confinement was especially interesting to argue about because in this moot problem, the confinement was done by installing locks on civilian homes and regulating their movement through a mobile application. The civilians could generally only be in their homes, but were able to leave for certain activities such as medical visits, buying groceries or for leisure at designated times. Because such a form of confinement has not really been conducted in real life before, quite a lot of time was spent arguing whether the conduct even fit in the general definition of “confinement” as usually understood through precedent. If we were able to get past this initial dispute, the court would still have to address whether the confinement was unlawful–whether the people confined could reasonably be taken to be threats to the state they were in because they had expressed support for a group that had a history of rioting and conducting violent acts. As for the count of the armoured vehicles, mooters had to first address whether the victims of a shooting were legitimate targets–whether their action of throwing stones at a military unit would cause them to be seen as targets that could be lawfully be attacked. The next question that had to be taken up was whether the AI program in the vehicles that identified targets and automatically fired unless aborted by the gunners would mean that the gunners did not have the intention of targeting and attacking the victims. If the gunners were found to have no intent, the war crime would not be established. Lastly, for all the counts I was in charge of, we still had to argue whether the CEO of the company that produced the relevant technologies could be held liable for the crimes, despite not directly committing the conducts of confinement and attacking people, which was very difficult!
Yuna Naoi: As my teammates explained, the moot problem covered a kind of developing area of IHL–autonomous weapons and criminal responsibility. Who should be responsible for unlawful confinement operated by AI? What about attacking an object which was selected, targeted and fired by an autonomous program? In this case, the developer of the system insisted that she did not know nor intended that her system would be used for such purposes. Should she be charged? Or should other persons such as military generals be?
As the researcher of the team, I tried to look for past cases or conventions for this type of war crime. However, I found it difficult because no established rules are shared under IHL. So what we faced was the very question that today’s IHL is facing.
Were there any significant differences between the regional competition and the national competition?
Jenna: The regional round competition problem was really complicated! I remember I had to read it through about five times before starting to have an idea of what was happening. The judges were also more difficult to deal with. We were expecting to be asked lots of questions, but for the first few rounds the judges were very quiet, leaving me struggling to adapt my oral submission on the spot to fill time. After those ‘cold’ benches, we encountered several fiery ones, with judges who asked very tough questions and purposefully took a long time to ask them. I found it increasingly difficult to keep my calm and a coherent line of argument!
Himena: I found the moot problem for the regional competition a little harder than the problem for the national competition, because it dealt with more contemporary issues that have few precedents. This made it more difficult to define relevant IHL terms, and to make a compelling argument on why the judges should see the issue in a certain way because there were no real-life examples to cite. Another difference I thought was significant was the schedule of the competition. While there was a break of a few weeks between the general and semi-final/final rounds in the national competition, the regional competition took place over five days straight. This meant we were getting little rest over the week as we were constantly practising and researching late into the night after the rounds every day.
Yuna: On top of the difference in the moot problem and the competition settings that my teammates mentioned, I thought the opponents were different. Of course, teams that appeared in regionals were generally strong because they all have survived nationals. However, what I found interesting was the different strong points of each team. Some teams were very knowledgeable about law, other teams were really great in delivery. It was good for our team that we could face different types of mooters from nationals and see our own strong points and the opposite. Also, I was glad that I could see so many people from different parts of the world that shared an interest in IHL and struggled with this hard moot problem. In this regard, I would hope so much that this competition had been done in person and we could interact outside of the court.
What were some challenges that you faced in the preparation process and during the competition itself?
Jenna: Because the issues that the moot problem addressed were very modern, it was hard to find case law and precedent to back my arguments up. This made it quite nerve-wracking to go into oral pleading, knowing that the judges had valid criticism to make of your argument, leaving you to argue out of that corner.
Himena: I found that time management was especially difficult for our team because our university calendar happens to be slightly different from the usual calendar followed by many universities, such that we were in our exam season from January to early February–which was when we also had to begin researching and finish writing two memorials (4,000-word documents containing our arguments supported by case law and commentaries) for the competition. Additionally, time management was also a challenge during the oral pleading rounds as we had to try to instantaneously prioritise and address our strongest arguments while competing against the clock when judges asked numerous questions that caused us to lose lots of time, or to improvise arguments on the spot when judges asked fewer questions than anticipated which caused us to have lots of time to spare.
Yuna: As I mentioned earlier, the lack of past cases and already established theory was challenging. Also, as Himena said, managing time while studying for university exams and preparing for the competition at the same time was tough for me.
What did you enjoy most about the competition?
Jenna: Although the oral pleading is really scary, it gives you a huge adrenaline rush while you are speaking, especially if things are going well. It’s such a good feeling when you can answer a question convincingly and with precedent to back you up! I also enjoyed the process of learning and researching with my teammates. Reading through court documents is surprisingly fun!
Himena: It is always fun to learn new things about IHL and to think about new ways to argue about the moot problem. It is especially enjoyable to do so together with a team and a wonderful professor. Hence, although the research process was gruelling, there was always an element of fun in it. Another aspect I really enjoyed was the fact as the representatives of Japan, many people in the country–especially those involved in the national competition hosted by ICRC Japan–were cheering us on for the regional competition. We were able to practise our pleadings with the judges from the national round, and receiving words of encouragement from the judges who we were quite afraid of during the national rounds was very comforting and uplifting, as we were lacking some confidence before the competitions (because again, we were not law students and were going against the winners of other national competitions who were mostly law students in their respective universities).
Yuna: During the oral pleading, I was watching it from another room with the professor because I was the researcher. Since I was not myself facing the judges, I could see the match from a little higher perspective. What was most exciting was that my teammates answered judges’ questions or opponents' rebuttals perfectly. Also, it was enjoyable to guess what judges are thinking and which team has a stronger argument. This is not only enjoyable but gave me insights on how to play in the moot court.
What were some of your important takeaways from the competition?
Jenna: My most important takeaway is how important it is to be able to stay calm even when things are not going well. Taking some time to map out the flow of your arguments in a more conceptual way is also useful to remain coherent and calm too.
Himena: One thing our team became very conscious of after the first general rounds was that we needed to appear more confident during our pleadings, because even though our arguments may have been strong, our expressions and way of speech also affected how convincing our points were. These public speaking skills are extremely valuable and will definitely be important to us in our studies, as well as in the future regardless of our careers. As in the national competition, I also again felt the value of teamwork and supporting each other throughout the competition process, as well as the importance of being able to have fun even when the process can be difficult. This optimistic attitude is especially needed in the field of IHL and international law, as even though many dark things may occur every day in global conflicts, we need to be hopeful that the activities of all the people involved in the field are contributing to the support and protection of many people in need.
Yuna: One of the important takeaways for me was that I could see the real IHL world through the judges. Since it was regional rounds, I could see a diverse range of professionals in the field of IHL. Some of them shared their story of experiencing the moot court when they were students and going into the actual IHL world. Their stories inspired me to continue learning more about IHL.
Do you have any plans regarding IHL from now on?
Jenna: I’m looking forward to helping other teams with their IHL competitions. This competition has also sparked a real interest in IHL for me, and I’m hoping that I will be able to study international law in the future.
Himena: I have found learning about IHL very fun and meaningful, and I hope to be able to stay involved in the IHL competitions the university takes part in either as a participant or by helping teams in their preparation process. I am also very interested in learning more about international law, and will be taking an introductory course on the subject in a summer programme this year. Hopefully in the future after some further studies I will be able to embark on a career that has some sort of relation to international law or IHL!
Yuna: Since I am planning to study at the Faculty of Law at university, I would like to learn more about IHL and other international laws. I am now curious about in what position IHL stands along with other International Laws and how IHL is given authority and legitimacy. On top of these academic interests, I am hoping to learn more about the practice of these international laws.
The team would like to express their deepest gratitude to all those who have set aside their precious time and energy to support the team throughout the preparation process and during the competition itself.
The team will go on to take part in the 39th Edition of the Jean-Pictet Competition in September 2022.