Author Topic: Armitage Opinion (to Rokk)  (Read 1123 times)

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Offline Achkaerin

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Armitage Opinion (to Rokk)
« on: January 05, 2022, 12:08:26 AM »
OOC - I'm told by Beatrice that the request for this wasn't retconned.


Legal Opinion in the Matter of Inquiry into Conduct in Relation to the Fair Seas Concordat

Introduction

1. The giver of this opinion is Melanie Armitage I am a commander in the Achkaerinese Navy, I have served in the navy for twenty five years, twenty of which have been in the JAG Corp. Of those twenty years sixteen were as counsel and the last eight have been as a judge, I am the serving Achkaerinese judge in the Uppsala Covention Court, my law degree is from the University of Dovah and I am a graduate of the Judicial College in Valtheim.

2. This legal opinion does not, nor should be interpreted as, constituting a legal judgement it is one individual's opinion based on an analysis of relevant legal material.

3. This Legal Opinion pertains to the legality of actions undertaken by the Commonwealth of the Unified Iwi in relation to the Fair Seas Concordat and was requested by the First Empire of Rokkenjima.

The Incident

4. The incident that this opinion concerns itself with is the arrest at sea of Lt Col Gamal of the Royal Seleucid army on the 4th of July 2017[1]. The arrest occurred aboard the Corinth Cruise ship, a Mercian flagged vessel[2]. Eyewitness testimony describes a helicopter landing on deck at night, a small team of armed men sweeping the ship and arresting Lt Col Gamal on the charges of crimes against humanity. The incident occurred in international waters.

The Law

5. If attempting to apply the Fair Seas Concordat[3] to the incident we must look at Article 110 section which states:

Article 110
Right of visit

1. Except where acts of interference derive from powers conferred by
treaty, a warship which encounters on the high seas a foreign ship, other than
a ship entitled to complete immunity in accordance with articles 95 and 96,
is not justified in boarding it unless there is reasonable ground for suspecting
that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag
State of the warship has jurisdiction under article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship
is, in reality, of the same nationality as the warship.

For the purposes of explanation the status afforded by articles 95 and 96 refers to jurisdictional immunity for the ship from all states save its own if it be either a warship or a vessel on government non-commercial service. The Corinth is neither of these therefore the immunities do not apply. The article lists the grounds under which the Iwi would be justified in boarding the Corinth and none of them would appear to apply in these circumstances, the Corinth was not engaged in piracy, was not engaged in the slave trade, was not engaged in unauthorised broadcasting, was not without nationality and was not attempting to conceal its identity by flying a false flag.

6. Therefore in response to the question "Do the actions of the Iwi in respect of this incident breach the Fair Seas Concordat?" the answer is yes, this being due to omission of arrest from article 110.

Consideration of the Status of Relations Between the Iwi and Royal Seleucid

7. Despite the answer given in paragraph 6, there must be due consideration of the status of relations between the Commonwealth of the Unified Iwi and the Emirate of Royal Seleucid. The two nations were recognised as at war with each other, there exists no peace treaty between the two nations, there exists no declaration of a cessation of hostilities between the two sides, there is sufficient basis to contend that a state of war continues to exist between the two nations. This is important because the methods employed in war, and sometimes in peace time, are omitted from the Fair Seas Concordat as attempting to apply the law of peace time to war is similar to attempting to apply the rules of Association Football to a game of Rugby.

8. If it is accepted that a state of war persists between the nations of the Iwi and Royal Seleucid then there is a method under some conventions of warfare at sea[4] for the Iwi action to be understood in this instance we would consider:

Section VI : Capture of neutral merchant vessels and goods

146. Neutral merchant vessels are subject to capture outside neutral waters if they are engaged in any of the activities referred to in paragraph 67 or if it is determined as a result of visit and search or by other means, that they:

(a) are carrying contraband;

(b) are on a voyage especially undertaken with a view to the transport of individual passengers who are
embodied in the armed forces of the enemy;


(c) are operating directly under enemy control, orders, charter, employment or direction;

(d) present irregular or fraudulent documents, lack necessary documents, or destroy, deface or conceal
documents;

(e) are violating regulations established by a belligerent within the immediate area of naval operations; or

(f) are breaching or attempting to breach a blockade.

For the purposes of the above, the Corinth does constitute a merchant vessel, part b of the article is highlighted - while likely not applicable to the letter in the circumstances, the spirit of the quoted article would appear to be that enemy combatants aboard neutral vessels are grounds to capture the said neutral vessel, one must then question the reason of that being a ground presumably that is to effect the capture of the enemy combatant(s) by the warship. Taking such a line of thought would mean that the Iwi action is not inconsistent with conventions and guidance for conduct during naval warfare at sea and therefore would make the action of the Iwi to be within accepted norms for the circumstances.

Conclusion

9. The right or wrong of the Iwi's action in this case ultimately depends on whether or not a state of war between the Iwi and Royal Seleucid is considered to have existed on the 4th of July 2017, the lack of a peace treaty or any formal notice of hostilities ceasing suggests that a state of war did exist and as outlined in paragraph the action of the Iwi falls spiritually within an acceptable norm.

Signed

Commander Melanie Armitage
 1. OOC - I believe the name Gamal has been used as a substitution for Phillips in reference to this previously, date as per the then Mercia news report
 2. We've always operated a policy of nations no longer on the map as being "somewhere out there" so I believe this would still be a Mercian vessel despite the subsequent replacing of Mercia with RS in the Iwi history narrative
 3. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
 4. https://www.icrc.org/en/doc/resources/documents/article/other/57jmsu.htm