By The University of Tokyo International Law Training and Research Hub
After triumphing over teams of law students across Japan in the 2022 ICRC Japan International Humanitarian Law Moot Court Competition National Round last December, the University of Tokyo’s International Humanitarian Law (IHL) team (Jihyun Lee, Kai Kurosu, Takuto Kitagawa) traveled to Hong Kong in March to compete in the 21st Asia-Pacific IHL Moot Court Competition.
Organized by the International Committee of the Red Cross (ICRC) and Hong Kong Red Cross, and based on a fictional armed conflict, the competition is set in the context of a mock International Criminal Court (ICC). Using well-established principles of law, precedents of the ICC and of similar international tribunals, as well as the agreed facts of the imagined case to their advantage, participating teams argue for both the Prosecution and Defense of a suspect accused of war crimes. Universities from across Asia, all winners of their respective national or local rounds, convened in Hong Kong under the invitation of the Hong Kong Red Cross, the ICRC, the University of Hong Kong, and the Chinese University of Hong Kong.
While the team was eliminated at the General Round of the Asia-Pacific competition, their journey to Hong Kong was a brief but busy and immersive whirlwind beginning with their first introduction to IHL in the summer of 2022. From there the team embarked on an exhaustive process of exploring the law of armed conflict (IHL), examining legal precedent, writing 4,000-word legal memorials, and learning to present before judges.
Could you introduce a bit about yourselves to the readers?
Takuto: I study in the Graduate Program on Human Security at Komaba. I study international relations, international law, and political economy. I like playing the piano and running in my spare time. I was a mooter in the national round, arguing for the Defense, and a Researcher at the regional round in Hong Kong.
Jihyun: I am a second-year in the Programs in English at Komaba (PEAK), focusing on Japan in East Asia (JEA). My academic interests mostly concern international relations in addition to cultural studies. In my free time, I like walking my dog and baking. I argued for the Prosecution in the national round and for both the Prosecution and Defense in the regional round.
Kai: I am also a second-year in the PEAK program, also in the JEA stream. I grew up in Tokyo. Outside of IHL and law, I like to study political science and international relations, so probably similar to Jihyun. Outside of classes, I like music, guitar, and also baseball. I was a mooter in both the national and regional rounds, arguing for Prosecution and Defense both times.
Why did you choose to join this competition?
Kai: I chose to join this competition because I am pretty interested in law as an academic subject, but I think at the undergraduate level, it is not very easy to study; it’s not very accessible. In the PEAK program, there is one big introductory course on law, but beyond that it’s very hard to study law at the undergraduate level unless you go to the Faculty of Law at Hongo (which is not very easy for PEAK students). That was kind of my first introduction to the club. I noticed that a lot of senpais from PEAK were involved with Professor Kihara-Hunt in this competition. And then Professor Kihara-Hunt had a few online seminars in which she explained basically what IHL was and what specific subject matter she was working with, and I found that to be very interesting too because I also have an interest in international relations. For me, I was drawn to this subject matter and had a lot of fun once I met the people, so that is why I joined.
Jihyun: After coming to university, I wanted to try exploring a field that I have never learned. Although I have never studied law before, I read through the articles on this website and thought the experience was really interesting; I realized this field of IHL was exactly what I was looking for. I thought it would be a great opportunity to try exploring this new area.
Takuto: I took one course from Professor Kihara-Hunt last year. It was not only about IHL, but she talked about IHL in the lectures. I thought it was a very pragmatic subject. I usually study international relations, especially about conflicts, war, and peace. And I thought that, if I didn't know about IHL, I would not understand conflicts or peace more deeply. The seminars that Professor Kihara-Hunt had were also very interesting, so I decided to join.
Could you elaborate a bit on the preparation and study you undertook for the comp?
Jihyun: Before we teamed up, we were just a group of people who were interested in the subject. All of us took part in Professor Kihara-Hunt’s online IHL seminar, and that is when we realized we were interested in IHL. Since then, we teamed up and began preparing for the competition officially by initially discussing the moot problem and eventually drafting the memorials together. While we were preparing for the memorials, we would refer to books and resources online for factual and legal evidence. While we were preparing for the oral round, we received a lot of help from our senpais who have competed in the competition before. With their support and help, we were able to learn a lot from the preparation process.
Kai: At the beginning, it was just understanding what even is IHL because it is not a term you hear very often. So understanding what that actually meant and also what the purpose of the ICC is. And the Rome Statute is still 20 or so years old, so it’s also still not very well known. So just understanding what it was that we were even trying to do was honestly the first step for me. And then the writing was a big part of it: understanding how to write a memorial but also in that process of writing, writing the whole argument using proper legal evidence. And then on top of that, understanding what legal evidence can be cited, what is not strong, what is more strong, and how to level-up from just regular argument writing to something that has legal meaning. That is something that all of us had to learn not being law students. I would reiterate how helpful it was to have Chris, Tim, Jenna, and Himena and all the other senpais and Professor Kihara-Hunt.
What were some challenges that you faced in the process and in the competition itself?
Jihyun: I think the biggest challenge perhaps was the fact that none of us are actual law students, so everything was basically new to us. We had to try to learn everything–including not just IHL but also how law itself functions. That is also the same reason why it was really interesting when we went to the regional round where everyone came from a background in law, so we could learn a lot from hearing about their perspectives and experiences.
Takuto: English was a big challenge for me. I did not study law before either, so reading and understanding legal concepts was tough for me. But I think it is important not to be too afraid in the beginning. As I got deeper into IHL, I began to understand the concepts and ideas of IHL. It was very difficult for me to do the national round, but at the regional round, since I already had some idea of IHL, it was a lot easier to write memorials and do research. (Kai: was it a gradual process or was there a moment when we did defense together when you got emotionally more comfortable? Maybe after we did defense together and it went well, maybe that gave you more confidence.) Definitely. I remember I was so nervous before our defense pleading, but I think we did a good job of doing the defense, which gave me some confidence.
What were the important lessons and memorable parts of the whole moot experience for you?
Kai: I think the most memorable part was, because we had the privilege of going to Hong Kong, that week we made a lot of friends who were also students. But there were also many practitioners in the legal field, judges, and legal experts. We were able to socialize and got to know a lot of very impressive people. And probably the most memorable in terms of the mooting experience specifically was probably that… I feel like when we’re mooting, you’re thinking about so many things that it’s kind of hard to remember that feeling, but I think the last national round (the final) was probably the best for me, and I remember answering a question comfortably. I think it was Nakatori Sensei (Clifford Chance Tokyo, Judge for the 2022 National Round) who asked me that question, and I kind of was able to answer it without really panicking. He seemed to be satisfied with that answer and I was just able to get into a rhythm. And obviously the ideal thing is to do that all the time, so I wish I could do that more but that was probably the most memorable.
Takuto: I didn’t study law and I didn’t like it that much at the beginning. I thought it was very technical and static. But now I think IHL, or international law more generally, is logical but at the same time very creative. The reason why I think so is that there is much room for interpretation. When we interpret the moot problems, because they are fiction, not real problems, there are some ways that we can interpret them. And also, when we use articles from the Rome Statute or the concepts of international law, there are many resources that we can refer to. For example, when articles say “to direct an attack” or “to compel someone to do something,” we check legal resources and case law, and there are many ways to interpret these articles, apply them to the moot problems, and create arguments. Now I think that law is something that we can discuss in a very creative way. That changed my perspective on law, and this is one big lesson for me from this competition.
Jihyun: The most memorable moment was the transition from the regional round where we had the opportunity to observe other courts. Since we went from being mooters to observers, it was really interesting to see how other teams were competing in the competition. That is when I could see and learn how I could improve and the ways in which I could do better. That was the most memorable moment and the lessons that I could gain from that moment as well because I could see how I could do better next time.
How did you think the experience was different compared to previous years and this year? (online vs. in-person)
Kai: I think definitely the networking aspect of it (for sure in the regional round) made it very clear to me that as much it is a competition and everyone is taking the competition aspect seriously, really the point of having a competition like this is (it sounds kind of cheesy but) to promote intellectual exchange and that is really the purpose and objective of it. So I mean taking it seriously but not taking it TOO seriously is at the end of the day (it is, after all, a ‘moot’ problem) and kind of focusing more on learning from it. And then, like what JIhyun said, observing people who are competing at that high level and reflecting on what you can take away from that. I don’t know if the national round next time will have more networking-type stuff, but for me, regarding the online versus in-person change, the most important point was that there was so much more; you realize that you don’t have to be just focused on the competition. And then obviously it was more personal with the judges, which is always good.
Jihyun: I think Kai said everything that was important. The competition being in person made it a really eye-opening experience, for both the moot competition and connecting with people. In terms of the competition, it really makes a difference between just competing in front of a camera or a screen and observing people online versus actually going to the courts to make your speeches and listening to other people make their speeches. In terms of connecting with people, it obviously makes such a big difference. I’m really grateful that we had the opportunity to participate in person and I hope that future mooters will also be able to have the same experience. (Takuto: which did you get more nervous–regional or national?) I think definitely regional?
Kai: Most definitely the other way for me. (Jihyun: why?!) I was the first counsel (first speaker) in both competitions, and, when we did the national, it was our first time doing it so I didn’t know what to expect. And I think I got asked a question at the beginning of my speech which really made me kind of confused. So it was not a great experience. Why was that the case for you?
Jihyun: If I do have to rank it, I think the first first national round–the first general round–was the most nerve wracking one and then it was the first regional round. But I feel like the regional round felt scarier because we knew from previous senpais’ experiences that it would be more competitive than the national round. Because we had expectations, I think that made me more nervous.
Also, being in Hong Kong in person was a very special opportunity. Especially the fact that we got to see the Hong Kong Red Cross building and we got to experience what kind of an organization the ICRC is. If it was not in person and we did not have these activities, it would have been difficult for us to grasp what the organization and IHL are. I think the competition being in person certainly helped in that way as well.
Kai: I think the criticism they always receive is that their stuff does not work in practice. IHL sounds good, but it is kind of hard to enforce which is probably true. But I think when you see people who have dedicated their lives to promoting IHL and who are doing their best to enforce it, I think it’s clear that there are people who respect IHL and that this is not just abstract law that doesn’t mean anything. So I feel like in-person opportunities like that are very positive.
Takuto: I felt that ICRC and Hong Kong Red Cross put much emphasis on the dissemination of IHL, and they try to create an IHL community. People from ICRC and Hong Kong Red Cross worked really hard to make this happen, and now I have a sense of being in the IHL community and the IHL spirit.
Kai: Also, I think the support from ICRC Japan too. It wasn’t like this competition was country against country necessarily, but I did feel like we had the backing of a lot of people who were very supportive of us and that was great.
What advice would you give to future competitors?
Takuto: I think that time management is very important. I tend to think too much about details, but time is very limited to do memorial writing and research. I think it is sometimes necessary to just keep moving rather than sticking to one or two points which you are not sure about. Also, I think it is better to study some basic sense of IHL at the beginning, maybe in summertime. It depends, but I like a systematic way of thinking and I am sure that studying some basics at the beginning helps do memorial writing and research a lot.
Jihyun: I think it would be important to know that you cannot be over prepared so you should really try to put in as much effort as you can because it is such a long process of preparing for the competition while the competition itself is so short. For your experience and to get the most out of the competition, it is important to realize that you cannot be over prepared. Prepare as much as you can! However, at the same time, do not feel overwhelmed because at the end of the day, it is an experience for you to learn so you should not stress about it; instead, it will help to be grateful that you have the chance to learn from this opportunity. I think trying to have these two mindsets is really important.
Kai: I agree with both of those sentiments. I agree with Takuto a lot. I think everything we were doing in IHL from an outside perspective seems really complicated, but if you kind of learn the basics of what the ICC is and what the goal of the ICC is–like why was it created–and also the very basic principles of the Rome Statute, for example, so you know what this body of law is trying to do. Then from there, I feel like although there is a lot to learn and there are specific cases that you want to know and principles that you have to remember, it all kind of systematically flows very easily. There might be some memorization and it can be hard, but you can avoid that sense of overwhelming panic. It was hard when we were doing memorial writing for the first time and I was still having trouble understanding what it is that we are doing. I was learning that as we are trying to produce writing. So even just going online and doing a little bit of research on what is the ICC and what is the goal of the ICC–especially because it is in the news now–it might be useful to have that basic level of understanding. From there, it becomes much easier of a process. I think it’s hard to go back–so for anyone who is coaching or giving advice–for those people to go back and understand the perspective of someone who is just beginning to learn. Once you learn what the ICC is, you get so focused and deeply entrenched in the law that it can be hard to understand what someone who is new to this might be feeling. So immersing yourself beforehand and having that basic level of understanding when you start is really good.
Any advice about the competition experience specifically? How to compete in this competition well? Is there anything we did well?
Jihyun: To answer the question in another way, something that you should not do is to force yourself to have one type of speaking style because I think from the regional round it was really interesting to see how there are really good oralists but they all have their own speaking styles. Whatever works for you is the best for you, so you don’t need to stress about that.
Takuto: I am sure that for some people, doing defense and protecting war criminals may sound bad and brutal. But I really enjoyed it because I could have sympathy for the defendants. I thought that the idea of command responsibility has some vague aspects, so I tried to think that I don’t want to be guilty or responsible for something I don’t know or something that I have nothing to do with. Also, I had the opinion that prosecution needs to be very careful with the evidence and reasons that they use (the onus of proof is on the prosecution's side!) and that it is also important to protect the basic rights of defendants in terms of the criminal justice system. Having these mindsets might help, especially because doing defense sounds a little difficult and go against a sense of justice.
Kai: I think the thing I probably didn’t have but Jihyun had, as well as the most successful teams in the competition, was a calm demeanor in handling judges’ questions. Successful mooters were just so calm in answering questions and, going back to that whole idea of “you shouldn’t have one speaking style” or “you can be very flexible with that”, I think the most successful teams were NOT really going through a list of remarks or a chronological speech. They obviously planned that judges would be asking a lot of questions and kind of structured their remarks around that. This is in the regional round, by the way. The most successful teams I think had a skeleton of a speech, but they were expecting that for most of their time they would be handling questions from the bench (the judges). Because they had that mindset that the oral round is not really about delivering a speech but more about answering judges’ questions, I think those teams were really successful because they expected the questions and were super calm in handling those questions. I would suggest that the most important thing is that it’s more about the judges than about delivering a good speech. Also being very flexible. I remember one of the Australian mooters (from the winning team) established command responsibility first (I think Article 25(3)), and so she didn’t have to go back and talk about the defendant's liability multiple times as it pertained to each count. She started with command responsibility and then she went to the material elements after, which I didn’t see any other teams do. So I think little things like that, being very flexible and able to adjust arguments around when necessary. Ultimately it is very hard to be comfortable in that setting but having that mindset, that it is mainly about the judges, was the most impressive thing that I saw.
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The team would like to express their sincere gratitude to all who have dedicated their time, energy, and resources to supporting the team throughout all stages of preparation and competition.