6TH AMITY NATIONAL MOOT COURT COMPETITION

2013

IN THE INTERNATIONAL JURIST COUNCIL

__________________________________________________

-Between-

Boskaveria …..Applicant

-and-

Amexico ……Defendant

__________________________________________________

Memorial for Defendant

__________________________________________________

Table of Authorities

I.C.J. CASES

Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 94 (June 27)

Bosnia and Herzegovina v Yugoslavia (1993) ICJ Rep 325

The Barcelona Traction Case (Belgium v Spain) (1970) (Belgium v. Spain) ICJ

OTHER INTERNATIONAL CASES

Caroline Case (1873) (Britain & America)

Naulilla Case: Portugal v Germany (1928) 2 RIAA 1012 German-Portuguese Arbitration Tribunal

ECHR Jorgic v. Germany Judgment, July 12, 2007

Review of the indictments concerning Karadzic and Mladic Pursuant to Rule 61 of the rules and Procedure and Evidence, ICTY IT-95-5-R61

UNITED NATIONS AND OTHER DOCUMENTS

S.C. Res. 1368 U.N. Doc. S/RES/368 (2001)

S.C. Res. 1373 U.N. Doc. S/RES/1373 (2001)

S.C Res. 794 U.N. Doc.S/RES/794 (1992)

S.C Res. 221 U.N. Doc. S/RES/211 (1966)

S.C Res. 713 U.N. Doc. S/RES/713 (1991)

S.C Res. 688 U.N Doc. S/RES/688 (1991)

S.C Res. 788 U.N Doc. S/RES/788 (1992)

S.C Res. 678 U.N Doc. S/RES/678 (1990)

S.C Res. 83 U.N Doc. S/RES/83 (1950)

S.C. Res. 1072, U.N. Doc. S/RES/1072 (1996)

S.C. Res. 940, U.N. Doc. S/RES/940 (1994)

G.A. Res. 48/17, U.N. Doc. A/RES/48/17 (1992)

G.A. Res. 48/27, U.N. Doc. A/RES/48/27 (1992)

G.A. Res. 96 U.N. Doc A/RES/96 (1946)

G.A. Res 180 U.N Doc A/RES/180 (1947)

Cairo Declaration, U.N. Doc. SN106/4/00 Rev. 4, Apr. 3-4, 2000

United Nation Universal Declaration of Human Rights G.A. Res. 217, U.N. Doc. A/810 (1948)

THE UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANISATION, SAN FRANCISCO, CALIFORNIA, APRIL 25 TO JUNE 26, 1945, SELECTED DOCUMENTS

Roberto Ago, Addendum to the 8th Report on State Responsibility, [1980] 2 Y.B. Int'l L. Comm'n 70, para. 83, U.N. Doc. A/CN.4/318/ADD.

Report of the Secretary General’s High Level Panel on Threat, Challenges and Change, UN Doc A/59/565

In Larger Freedom: Towards development, security and human rights for all (Report of the Secretary-General) UN Doc A/59/2005

U.N. High-Level Panel on Threats, Challenges & Change, A More Secure World: Our Shared Responsibility, 94, U.N. Doc. A/59/565 (Dec. 2, 2004).

Report of the Committee on Use of Force in Relations Among States A/RES/25/2625

Verbatim Minutes of Second Meeting of Commission III on June 13, U.N. Docs. 972, 1078, & 1198 (1945 )

International agreements and conventions

International Covenant on Civil and Political Rights 999 U.N.T.S. 171 (1966)

International Criminal Court Statue A/CONF.183 of July 1998

Organisation of American States Charter 30 April 1948

United Nations 1 UNTS XVI

The Convention on the Prevention and Punishment of the Crime of Genocide 1948 A/RES/260

Treaty of Union, League and Perpetual Confederation art. 29, July 15, 1826

Books and commentaries

Alina Kaczorowska, ‘150 leading cases Public International Law’, Old Bailey Press

D.W. Bowett, Self-Defence in International Law 183 (1958)

General Comment No. 14: Nuclear weapons and the right to life (Art. 6) : . 09/11/1984.CCPR General Comment No. 14.

General Comment No. 09: Humane treatment of persons deprived of liberty (Art. 10) : . 30/07/1982.CCPR General Comment No. 9. (General Comments)

H.O Aggarwal International law & Human Rights, Central Law Publications 18th edition 2011

Human rights enforcement via peremptory norms –a challenge to state sovereignty Predrag Zenović RGSL RESEARCH PAPERS NO 6

Hans Kelsen, Collective Security and Collective Self-Defence Under the Charter of the United Nations, 42 .793 (1948)

Jean d'Aspremont Responsibility for Coups d'Etat in International Law

Louis Rene Beres, A Rejoinder, 9 TEMP. INT'L & COMP. L.J. 447-48 (1995)

Michael Franklin Lohr, Legal Analysis of US Military Responses to State-Sponsored International Terrorism, 34 NAVAL L. REV. 1, 17 (1985)

Report of the Committee on Use of Force in Relations Among States, 1985-86 AM BRANCH OF THE INT'L LAW ASS'N 188, 203

Richard J. Erickson Legitimate use of Military Force Against State-Sponsored International Terrorism, 140-41 (1989)

Van de hole, Leo. "Anticipatory Self-Defence Under International Law." American University International Law Review 19, no. 1 (2003):

Yoram, Dinstien, War, Aggression And Self-Defence, 167 (Cambridge University Press 3d ed. 2001)

Statement of Jurisdiction

The Republic of Amexico and the Republic of Boskaveria have made unconditional declarations recognizing the compulsory jurisdiction of the International Court of Justice, pursuant to Article 36(2) of the Court’s Statute. Boskaveria has submitted the dispute by Application, in accordance with Article 40(1) of the Statute of this Court. This is without prejudice to Boskaveria’s contention that Amexico has violated Boskaveria’s Territorial Integrity under Article 2 (A) of the World Council Charter. Each party shall accept the judgment of this Court as final and binding and shall execute it in good faith in its entirety.

Questions presented before the Court

I) Whether Amexico acted in self-defence under article 55 of World Council against Boskaveria?

II) Whether the Defendant had authorization of the Protection Council to intervene?

III) Whether the actions of Boskaveria amount to Genocide and Ethnic cleansing?

IV) Whether Amexico’s intervention violates Art 2 (A) & Norms of Jus Cogens by causing threat to the Sovereignty of Boskaveria?

Statement of Facts

I. Bokskaveria’s descent to military coup d’ etat:

Boskaveria a liberal democracy due to political turmoil was overthrown by a military coup d’ etat which ruled with an iron fist and place restrictions on every liberty of the public. Situations worsened when the new government resorted to atrocious crimes against citizens who revolted against them.

II. Amexico’s condemnation and refugee problem:

Amexico the immediate neighbour to Boskaveria was the first to condemn its actions. Due to the atrocious crimes a mass inflow of refugees from Boskaveria to Amexico caused internal administration problems. The former government loyalists set up a government adjoining the eastern border of Amexico.

III. The World Council- Protection Council and General Council Resolutions:

The World Council’s Protection Council and General Council passed resolutions condemning Bokskaveria’s actions and also accepted that its the World Community’s duty to protect innocent civilians from crimes against humanity

IV. Amexico military intervention in Boskaveria:

Amexico used military intervention tactics and sent military troops Boskaveria to prevent the massacre carried out by Boskaveria. Boskaverian Government sued Amexico in the International Jurist Court alleging it violated its territorial sovereignty.

Summary of Pleadings

1

2

I) RESPONDENT ACTED IN PRE-EMPTIVE SELF-DEFENCE UNDER

COMPLIANCE OF CUSTOMARY INTERNATIONAL LAW AND ART.

55 OF WORLD COUNCIL

The defendant has the right to Pre-emptive self-defence resulting from the arising situation in

the appellant’s state. The article 55 of the World Council Charter (similar to United Nations

Charter Art. 51) reads as follows:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-

defence if an armed attack occurs against a Member of the United Nations, until the Security

Council has taken the measures necessary to maintain international peace and security.

Measures taken by Members in the exercise of this right of self-defence shall be immediately

reported to the Security Council and shall not in any way affect the authority and

responsibility of the Security Council under the present Charter to take at any time such

action as it deems necessary in order to maintain or restore international peace and security1.”

A) Existence of Customary International Law on self-defence parallel to

Art.55:

Even though the article says self-defence can be availed against an armed attack but

customary law on self-defence exist on parallel of each other. Article 51 "only

highlights one form of self-defence (namely in response to an armed attack)," and that

the right of self-defence is a Pre-existing, inherent right recognized in customary

International Law2. The right of individual self-defence was regarded as so firmly

established in international law that it was automatically accepted from the Kellogg-

Briand Pact without any mention of it3. Even during the discussions during the

drafting of the U.N charter In the ensuing debate, the delegates clearly intended for

the customary right of self-defence to be unaltered and sought to prevent a single

permanent member of the U.N. Security Council from being able to prevent a regional

organization from taking any action by using its veto power4. The use of arms in

1 United Nations Charter Art 512Yoram, Dinstien, War, Aggression And Self-Defence, 167 (Cambridge University Press 3d ed. 2001) 3 Michael Franklin Lohr, Legal Analysis of US Military Responses to State-Sponsored International Terrorism, 34 NAVAL L. REV. 1, 17 (1985)4 D.W. Bowett, Self-Defence in International Law 183 (1958) (noting the fear that a single permanent Member's veto could prevent action by the regional organisation).

legitimate self-defence remains admitted and unimpaired5. Senator Vandenberg, a

member of the U.S. Delegation, declared that “we here recognize the inherent right of

self-defence, whether individual or collective, which permits any sovereign state

among us or any qualified regional group of states to ward off attack pending

adequate action by the parent body.6” Article 51 therefore leaves unimpaired the right

of self-defence as it existed prior to the adoption of the U.N. Charter.7

Article 51 explicitly acknowledges the pre-existing customary right of self-defence, as

recognized by the International Court of Justice ("ICJ") and the U.N. Security

Council8. Article 51, however, reads that "nothing in the present U.N. Charter shall

impair the inherent right of individual or collective self-defence”. As mentioned

above, the drafting history and the wording of Article 51 reflect the intention of the

architects of the U.N. Charter to refer in Article 51 to a pre-existing, inherent right of

self-defence. No argument can therefore be drawn from the wording "if an armed

attack occurs" in Article 519. It is to be noted that in the present age of worldwide

armament and nuclear weapons race waiting for an attack to occur is not desirable. To

wait for the first strike would be insanity when military preparation is inadequate as

deterrence or as a shock absorber10. More clearly explained by Erickson if states

waited for such an attack, they would then become responsible for the restoration,

instead of maintenance, of international peace and security11. This Clearly states that

because of the on-going events in the Appellant state such as the military coup d’ etat

following the mass inflow of refugees from the Appellant State to the Defendant State

causing ‘Serious internal problems’ and also the setting up of the Rebel Government

by the loyalists of the former lawful government was causing serious problems and

5 THE UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANISATION, SAN FRANCISCO, CALIFORNIA, APRIL 25 TO JUNE 26, 1945, SELECTED DOCUMENTS 490, 498.6 Verbatim Minutes of Second Meeting of Commission III on June 13, U.N. Docs. 972, 1078, & 1198 (1945 ) 7 Report of the Committee on Use of Force in Relations Among States, 1985-86 AM BRANCH OF THE INT'L LAW ASS'N 188, 203 (interpreting Article 51 as leaving the right to self-defence unimpaired).8 See S.C. Res. 1368, U.N. SCOR, 4370th mtg., U.N. Doc. S/RES/368 (2001) ("Recognizing the inherent right of individual or collective self-defence in accordance with the Charter.") S.C. Res. 1373, U.N. SCOR, 4385th mtg. at 1, U.N. Doc. S/RES/1373 (2001) ("Reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368.")9 Van de hole, Leo. "Anticipatory Self-Defence Under International Law." American University International Law Review 19, no. 1 (2003): p.8510 Ibid p.8911 - Richard J. Erickson Legitimate use of Military Force Against State-Sponsored International Terrorism, 140-41 (1989) 139

imminent danger to the Defendant State. There was also a threat to International

Peace and Security due to the on-going ethnic cleansing and refugees.

B) The test of Pre-emptive Self-Defence: Caroline Case

The classical definition of the Caroline case is still relevant for anticipatory self-

defence today12. It is also known as the Webster Formula , in one of his letters to Mr

Fox it was stated “It will be for that Government to show a necessity of self-defence,

instant, overwhelming, leaving no choice of means, and no moment for

deliberation”13. From this line of Mr Fox the following principles can be made out:

1. There must, initially, be a necessity of self-defence, instant, overwhelming, leaving

no choice of means and no moment for deliberation.

2. The acts done in self-defence must not be unreasonable or excessive and the force

used must be proportionate to the harm threatened.14

Making Deliberation from the following points it can be made out that there was a

necessity of self-defence created by the on-going refugee situation which was causing

‘major’ and ‘serious’ problems between the people of Amexico and the Boskaverian

refugees due to the ‘ethnic cleansing’ going on in Boskaveria which also thus

constituted a ‘threat to international peace and security’.15

Secondly the setting up of the Former Legal Rebel Government adjoining the eastern

Amexico-Boskaveria border causing even more imminent danger to the defendant.

Thus the ‘Cumulation of Events’ which created ‘a necessity of self-defence, instant,

overwhelming and left no choice of means for deliberation and also that The World

Council’s action was under risk to be obstructed, delayed or inadequate and the armed

attack became manifestly imminent, then it would be a travesty of the purposes of the

Charter to compel a defending state to allow its assailant to deliver the first and

12 Michael Lacey, Self-Defence or Self-Denial: The Proliferation of Weapons of Mass Destruction, 10 IND. INT'L & COMP. L. REv. 293, 294 (2000) (describing how the Caroline standard still applies to issues of self -defence in recent U.S. military action against Libya, Afghanistan, and Sudan).13 Caroline Case: Letter of Mr. Webster to Mr. Fox (April 24, 1841), in 29 BRITISH AND FOREIGN STATE PAPERS, 1840-41 at 1137-38 (1857).14 Alina Kaczorowska, ‘150 leading cases Public International Law’, Old Bailey Press p. 36515 UNSC Resolution 794 (1992) 3145th meeting, 3 December 1992 S/RES/794 (1992) 3 .December 1992 (“Resolution relating the on-going situation of mass Human Rights violations in Somalia which constituted a ‘Threat to international peace and security)

perhaps fatal blow16. The threat or the attack in question consisted of a number of

successive acts, and there is sufficient reason to expect a continuation of acts from the

same source, the international community should view the requirement of the

immediacy of the self-defensive action in the light of those acts as a whole17. During

the Naulilaa Case the ‘Doctrine of Proportionality was repeated “an act of self-help on

the part of an injured state — after an unsatisfied demand — responding to an act

contrary to the law of nations on the part of the offending state.”18

C) United Nations acceptance of Pre-Emptive Self-Defence:

The last part of the first sentence of Article 51 reads that states can only exercise their

inherent right of self-defence (including anticipatory self-defence) until the Security

Council has taken the measures necessary to maintain international peace and

security.19 A UN High Level Panel was set up to respond to the new challenges to the

collective security system after 11 September 2001; in its report of December 2004 it

accepted a right of anticipatory self-defence.20 The UN Secretary-General in his

response to the High Level Panel, ‘In Larger Freedom’, also accepted this previously

controversial doctrine, although in more cautious terms, saying that ‘imminent’

threats are fully covered by Article 51.21 Thus there is no question of the Defendant’s

action not being under the ambit of Article 51 and also that the factor of ‘imminent

danger’ was present.

There is a specific rule whereby self-defence would warrant only measures which are

proportional to the armed attack and necessary to respond to it, a rule well established

in customary international law 22 and from the action taken by the Defendant was

proportionate and not in excess of the necessary required to respond to the danger that

was posed. Such an attack would be one of anticipatory self-defence and not of

16 Hans Kelsen, Collective Security and Collective Self-Defence Under the Charter of the United Nations, 42 .793 (1948) 17 Roberto Ago, Addendum to the 8th Report on State Responsibility, [1980] 2 Y.B. Int'l L. Comm'n 70, para. 83, U.N. Doc. A/CN.4/318/ADD. 7018 Naulilla Case: Portugal v Germany (1928) 2 RIAA 1012 German-Portuguese Arbitration Tribunal19 Van de hole, Leo. "Anticipatory Self-Defence Under International Law." American University International Law Review 19, no. 1 (2003): p.9820 Report of the Secretary General’s High Level Panel on Threat, Challenges and Change, UN Doc A/59/56521 UN Doc A/59/200522 Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 94 (June 27).

reprisal, since its prime motive would be protective, not punitive23, the action taken by

the Defendant was protective as the threat was being created by the on-going ethnic

cleansing and thus sending a Military force for only for stopping the on-going ethnic

cleansing would in no way be excessive of the necessary and also end the refugee

crisis which would in-turn end the threat caused to the defendant. When a state fails to

prevent activities within its own jurisdiction that are injurious to another state or its

nationals, then that state may forfeit its right to territorial inviolability24. Furthermore

stopping the genocide would further the cause of the World Council and upheld the

resolutions of the Protection Council and General Council stating that “it’s the World

Community’s duty to protect individuals from crimes against humanity and ethnic

cleansing”.

It can be said that a major future danger was averted by this proportional and necessary

preventive measure by the defendant. One can apply the same principle to the Israeli raid on

the Osirak Iraqi nuclear reactor under construction at Tuwaitha in 1981. The nuclear devices

produced by Iraq would ultimately be delivered against Israeli targets. The launch of thirty-

nine Scud missiles against the Israeli civilian population during the Persian Gulf War in

1991 leaves no doubt about the danger that Israel faced and the real danger Israel would have

faced had Prime Minister Begin not previously asserted Israel's right of anticipatory self-

defence and destroyed Saddam's nuclear weapons program25

II) RESPONDENT ACTED ON PROTECTION COUNCIL AND

GENERAL COUNCIL RESOLUTIONS FOR ASSISTANCE:

After the actions of ethnic cleansing and genocide taken by the Appellant State there was

worldwide condemnation of their actions. Protection Council passed a resolution condemning

the actions of Boskaveria and it was also said that “It was the duty of World Community to

protect innocent civilians.” A Similar resolution was passed by the General Council accepting

“The duty of preventing civilians from crime against humanity, ethnic cleansing lies on the

world community.” Keeping these resolutions by the prime organs of the World organisation

in mind the defendant acted under Art. 25 of the UNC “The Members of the United Nations

23 Report of the Committee on Use of Force in Relations Among States, at 20624 Richard J. Erickson Legitimate use of Military Force Against State-Sponsored International Terrorism, 85 (1989)25 Louis Rene Beres, A Rejoinder, 9 TEMP. INT'L & COMP. L.J. 447-48 (1995)

agree to accept and carry out the decisions of the Security Council in accordance with the

present Charter”26. The Defendant contends it acted upon the decision taken by the Protection

Council to protect the innocent civilians against the crimes committed against them.

A) Threat to International Peace and Security was established:

Firstly it can be easily made out that the on-going situation constituted a threat to

world peace and security under Art. 39. Which reads as follows “The Security

Council shall determine the existence of any threat to the peace, breach of the peace,

or act of aggression and shall make recommendations, or decide what measures shall

be taken in accordance with Articles 41 and 42, to maintain or restore international

peace and security.”27

In a similar situation of a civil unrest in Rhodesia was declared a threat to

international peace and security.28 In Resolution 713 the fighting situation in

Yugoslavia was declared a ‘Threat to peace and security’29. In Resolution 688 a threat

to international peace and security was constituted during the Iraqi suppression of its

civilian population especially areas populated by Kurds30 and also pointing out the

refugee flows over to the borders of Turkey and Iran “Gravely concerned by the

repression of the Iraqi civilian population in many parts of Iraq, including most

recently in Kurdish populated areas, which led to a massive flow of refugees towards

and across international frontiers and to cross-border incursions, which threaten

international peace and security in the region.”31 In Resolution 788 (1992) the Council

decided the Deteriorating civil war situation in Liberia constituted a threat to

International peace and security “Determining that the deterioration of the situation in

Liberia constitutes a threat to international peace and security, particularly in West

Africa as a whole.”32

Even in the Tadic case the Appeal chamber declared “Indeed, the practice of the

Security Council is rich with cases of civil war on internal strife which is classified as

a ‘threat to peace’ and dealt with under Chapter VII... It can be said that there is a

common understanding, manifested by the ‘subsequent practice’ of the membership

26 United Nations Charter Art. 2527 United Nations Charter Art 39

28 UNSC Resolution 221 (1966)29 UNSC Resolution 713 (1991)30 Malcolm N. Shaw QC, International Law 6th edition 2010 p. 123931 UNSC Resolution 68832 UNSC Resolution 788

of the United Nations at large that the ‘threat to peace’ of article 39 may include, as

one of its species, internal armed conflicts33”

B) The action taken by the Defendant was permissible after the Protection

Council resolution:

From the following instances it can be made out that there existed a ‘Threat to peace

and security’ due to the ethnic cleansing and the refugee inflow into the defendant’s

territory. Thus resulting that the resolution of the Protection Council was compliant

under Article 39 of the UNC and action under Article 42 could be taken by the

defendant state. In Resolution 678 during the Iraq invasion of Kuwait where the

Security Council authorised member states to co-operate with Kuwait and use any

means possible and implement resolution 660 (1990) and restore international peace

and security in the area.34 Similarly it was necessary to take action against Boskaveria

as more delay would have caused excessive human suffering due to the on-going

suffering and also to avert the imminent danger that the Defendant was being posed

due to the mounting pressure of the refugee inflow and the setting up of the Rebel

Government adjoining the border of the Defendant.

The Security Council passed a somewhat similar resolution previously during the

Korean War when North Korea attacked South Korea. Resolution 83 clearly stated

“Recommends that the Members of United Nations furnish assistance to the Republic

of Korea as may be necessary to repel the armed attack and to restore international

peace and security in the area.35” Council’s recommendation to the members for

furnishing such assistance’, as may be necessary, for repelling the armed attack is not

different from the resolution adopted in the Gulf Crisis36 and the same goes for the

resolution passed by the Protection Council relating the duty of the world community

(member states) to protect innocent civilians (from crimes against humanity).

Member’s voluntary action would have been unlawful only if it could be said to have

been directed against the territorial integrity or political independence.37 In Bosnia and

33 Supra, Shaw 30: 1240 (105 ILR pp.419,466)34 UNSC Resolution 678 (1990)35 UNSC Resolution 83 (1950)36 H.O Aggarwal International law & Human Rights, Central Law Publications 18th edition 2011 p. 45837 Ibid p.461 (Justifying the action taken by the states against Iraq after passing of UNSC resolution 678)

Herzegovina v Yugoslavia (1993), Bosnia-Herzegovina’s Second application filed to

the ICJ for action against Yugoslavia for their Genocide aiding actions towards

Bosnia-Herzegovina the Judgement stated quoting Art.1 of the Genocide Convention

“The Contracting parties confirm that Genocide, whether committed in time of peace

or war, is a crime under international law which they undertake to prevent and

punish” Putting special emphasis on the wording “To Prevent and to Punish” the

crime of genocide”.38 So accordingly it was the duty of the Defendant to Prevent the

act of genocide occurring in its neighbouring state of the Appellant.

Article 2 (A) would have been violated if it was directed against the territorial

integrity or political independence of Boskaveria, nor the action taken by the

Defendant was inconsistent with the purpose of World Council as it was protecting

Art. 1 of the World Council i.e. “One of its main purposes is to promote respect for

Human rights and Fundamental freedoms to all” from violation and the Defendant

being a member of the World Council its duty is to protect the Purposes of the World

Council. Furthermore UNC Art.1 (1) says:

“To maintain international peace and security, and to that end: to take effective collective

measures for the prevention and removal of threats to the peace, and for the suppression of

acts of aggression or other breaches of the peace, and to bring about by peaceful means, and

in conformity with the principles of justice and international law, adjustment or settlement of

international disputes or situations which might lead to a breach of the peace.39”

III) THE MILITARY COUP D’ETAT AND THE PRECEDING

GOVERNMENT WAS UNLAWFUL AND UNCONSTITUTIONAL:

A) Worldwide Inadmissibility of Military Coup d’etat:

According to the World community military coup d’etat deemed unacceptable and,

accordingly, are widely condemned40 similarly the Appellant’s Coup was widely

condemned. Coups d'etat, despite being systematically condemned in political

discourse, do not engage the responsibility of any state because they cannot be

38 Alina Kaczorrowska 150 leading cases Public International Law Old Bailey Press (Case concerning the Application of the convention on the Prevention and Punishment of the crime of genocide (Second indication of Provisonal Measures): Bosnia and Herzegovina v Yugoslavia (1993) ICJ Rep 325 ) p.36739 United Nations Charter 1 (1)40 Jean d'Aspremont Responsibility for Coups d'Etat in International Law 451

attributed to any international legal subject41. An illegal government as a result of

military coup d’etat is not recognised by States and is seen as a threat to democracy. It

is reflected by many nations, international regional organisations and as well as the

United Nations, the condemnation and unacceptability of such coups.

Article 29 of the "Treaty of Union, League and Perpetual Confederation," which was

developed in 1826 between several North and South American Countries, stipulated

that a "dramatic change in the nature of a government" could lead to the suspension of

a Member State42. There has been condemnation of previous military coups by the

U.N General Assembly. “Unreservedly condemns the coup which has caused an

abrupt and violent interruption of the democratic process initiated in Burundi”43 in the

situation in Burundi in 199344.

“Strongly condemns again the attempt to replace unlawfully the constitutional

President of Haiti, the employment of violence and military coercion and the violation

of human rights in that country45.” In the situation of the Haitian Military coup.

“Reaffirming that the goal of the international community remains the restoration of

democracy in Haiti and the prompt return of the legitimately elected President, Jean-

Bertrand Aristide”46. So as it can be seen the Government as the result of the military

coup d’etat in the Appellant’s state was illegal and was also condemned by the

Protection Council and the General Council in its resolutions.

B) Illegality of Military regime on overthrowing a Democratic

government:

This was stated in the Security Council resolution 940 regarding the Haiti situation.

The Appellant’s state also being in the similar situation, the United Nations

recognises the previously ‘legitimately’ elected democratic president of Haiti.

Similarly the Military regime will get no recognition thus also making the claim of

violation of territorial sovereignty invalid as their Sovereignty was already in danger,

41 Ibid 451-242 Treaty of Union, League and Perpetual Confederation art. 29, July 15, 1826, reprinted i JAMES BROWN SCOTT, TuE INTERNATIONAL CONFERENCES OF AMERICAN STATES, 1889-1928 xxiv (193 1)43 G.A. Res. 48/17, U.N. Doc. A/RES/48/17 (Nov. 11, 1992) 44 S.C. Res. 1072, U.N. Doc. S/RES/1072 (Aug. 30, 1996).45 G.A. Res. 48/27, U.N. Doc. A/RES/48/27 (Dec. 10, 1992)46 S.C. Res. 940, U.N. Doc. S/RES/940 (July 31, 1994)

thus re-quoting the line “When a state fails to prevent activities within its own

jurisdiction that are injurious to another state or its nationals, then that state may

forfeit its right to territorial inviolability”47The same principle applies on the

Appellant State.

Even in Multilateral treaties such as OAS articles such as Art.9 shows the

inadmissibility of Military coups “A Member of the Organization whose

democratically constituted government has been overthrown by force may be

suspended from the exercise of the right to participate in the sessions of the General

Assembly, the Meeting of Consultation, the Councils of the Organization and the

Specialized Conferences as well as in the commissions, working groups and any other

bodies established.”48The Cairo Declarations also states the same “We condemn all

anti-democratic forms of accession to power, and reaffirm the supreme and

inalienable right of our people to fully participate in the process of government,

through their democratically elected representatives”49

The United Nations High Level Panel also suggested in its report to the Secretary General

that there is a need of protection of democratically elected governments from unconstitutional

overthrow.50 So in the end we can assert that a state in which the government has acquired

power to the detriment of a democratic government and refuses to adhere to democratic

elections has committed a wrongful act.51 So the Military Government being an illegal and

unconstitutional government, the Defendant acted on behalf of the previously elected

democratic government thus not violating any peremptory norms of jus cogens of territorial

integrity.

47 Supra 21. P.8548 OAS Charter (as amended), art. 9, available at http://www.oas.org/dil/treatiesA- 42_Charter of theOrganization of AmericanStates.htm49 Cairo Declaration, U.N. Doc. SN106/4/00 Rev. 4, Apr. 3-4, 200050 U.N. High-Level Panel on Threats, Challenges & Change, A More Secure World: Our Shared Responsibility, 94, U.N. Doc. A/59/565 (Dec. 2, 2004).51 Jean d'Aspremont Responsibility for Coups d'Etat in International Law 473

IV) GROSS HUMAN RIGHT VIOLATIONS AND VIOLATION OF

NORMS OF JUS COGENS OF RIGHT TO LIFE:

The Appellant by its actions of supressing the general public and the media of its state, using

the people of the appellant’s state to funds its own illegal cartels depriving the public of their

economic and social life, furthermore the blatant and serious violations of human rights by

committing crimes against humanity and the major crime of genocide, the appellant has

violated a large number of conventions, covenants and peremptory norms of jus cogens on

human rights. Thus necessitating interference to protect the innocent civilians of the

Appellant’s state against crime against humanity and the acts of genocide according to the

resolutions passed by the General Council and Protection Council.

A) Violation of World Council Charter human right articles:

Article 1(3) of the United Nations Charter reads as follows: “To achieve international

co-operation in solving international problems of an economic, social, cultural, or

humanitarian character, and in promoting and encouraging respect for human rights

and for fundamental freedoms for all without distinction as to race, sex, language or

religion”.52 To uphold this article and as stated in Art 2 (A) of the World Council

relating to non-intervention ‘in any other manner inconsistent with the purposes of the

United Nations’ The intervention by the Defendant as to protect article 1 (1) and

article 1 (3) was valid. Also according to article 2 (7) “Nothing contained in the

present Charter shall authorize the United Nations to intervene in matters which are

essentially within the domestic jurisdiction of any state or shall require the Members

to submit such matters to settlement under the present Charter; but this principle

shall not prejudice the application of enforcement measures under Chapter VII”53 as

contended earlier authorisation was already established.54

The United Nation Universal Declaration of Human Rights55 was violated on many

counts, 2 (Entitlement to freedoms set forth), 3 (Right to Life), 5 (Torture and cruel

punishment),13 (1) (Right to freedom of movement), 19 (Right to expression), 21

52 UNC Article 1 (1)53 UNC Article 2 (7)54 See p. 555 See United Nation Universal Declaration of Human Rights http://www.un.org/en/documents/udhr/index.shtml (last accessed on 23/01/2013)

(Right to participate in Government), 22 (Right to economic, social and cultural

rights) thus it can be seen on how many counts the Appellant has violated the UDHR.

B) Violation of other Conventions and Peremptory norms of Jus Cogens:

The appellant has violated Articles 1, 2 & 3 of The Convention on the Prevention and

Punishment of the Crime of Genocide whose articles 1 & 2 are known to be a part of

Jus Cogens, thus they cannot be derogated from on the basis of Sovereignty.56

“However, pursuant to Article I of the Genocide Convention, the Contracting Parties

were under an erga omnes obligation to prevent and punish genocide, the prohibition

of which forms part of the jus cogens”57Article 1 of the convention reads:

“The Contracting Parties confirm that genocide, whether committed in time of peace

or in time of war, is a crime under international law which they undertake to prevent

and to punish.”58

Thus according to article one the defendant took action to prevent the crime of

genocide from being carried on further.59 The Appellant cannot content on the fact

that it was its internal matter as there is nothing that conflicts with the idea that human

rights of the people within state boundaries remain within the state’s absolute

discretion.60 Whereas the question comes whether the Appellant has ratified the

convention or not is irrelevant as multilateral treaties are usually ratified (or in some

other way accepted) by a higher number of contracting parties which fulfils the

condition necessary for jus cogens61which are universal. As stated in the Barcelona

Traction case outlawing genocide and other forms of crimes against humanity “the

outlawing of acts of aggression, and of genocide, as also … the principles and rules

concerning the basic rights of the human person, including protection from slavery

and racial discrimination”62 The UNGA also stated in its resolution that ‘The killing

of a group of human beings- is a crime under International law.’63 Also according to

56 Supra note 30 pp.43057 ECHR Jorgic v. Germany Judgment, July 12, 2007, para. 6858 The Convention on the Prevention and Punishment of the Crime of Genocide Art.159 Supra 38 (Special emphasis put on the wording “To Prevent and to Punish” the crime of genocide by the tribunal relating Bosnia and Herzegovina v Yugoslavia (1993) ICJ Rep 325 ) 60 Human rights enforcement via peremptory norms –a challenge to state sovereignty Predrag Zenović RGSL RESEARCH PAPERS NO 6 pp. 1161 Ibid pp.31 62 The Barcelona Traction Case (Belgium v Spain) (1962) p.32 para 3363 UNGA resolution 96 (1946) and reaffirmed in resolution 180 (1947)

article VII of the Genocide Convention genocide shall not be considered be

considered a political crime under any circumstances.64 Even in the question of ‘ethnic

cleansing’ as such it does not constitute genocide but may amount to a pattern of

conduct demonstrating genocidal intent.65

The article 6 of the International Covenant on Civil and Political Rights of Right to

Life was violated by the appellant66 which also is a peremptory norm of jus cogens.

Right to life enunciated in the first paragraph of article 6 of the International Covenant

on Civil and Political Rights is the supreme right from which no derogation is

permitted even in time of public emergency. The same right to life is enshrined in

article 3 of the Universal Declaration of Human Rights adopted by the General

Assembly of the United Nations on 10 December 1948. It is basic to all human

rights.67 Also Article 9 (Right to liberty and security of persons) Article 10 (Humane

treatment of persons deprived of liberty)68 Article 19 (Freedom of expression) of the

ICCPR convention were violated. Furthermore Article 7 of the ICC Statute

(prohibition of crimes against humanity) was violated by the Appellant, which

also forms a part of the peremptory norms of Jus Cogens.69 Article 7 was violated as

specific individual act in the course of a widespread or systematic attack on a civilian

population70 had occurred which is violative of the ICC article 7.

Thus on seeing the gross violations of human rights conventions, customs and Norms of Jus

Cogens action to be taken by the Defendant was necessary as according to the Geneva

Convention on Genocide if a threat to international peace and security is there under article

39 because of the genocide action is to be taken under UNC Article 41-4271 to restore

international peace.64 Ibid Art.765 Review of the indictments concerning Karadzic and Mladic Pursuant to Rule 61 of the rules and Procedure and Evidence, ICTY, IT-95-5-R61 pp.1266 International Covenant on Civil and Political Rights Art.6 [ http://www2.ohchr.org/english/law/ccpr.htm]67 General Comment No. 14: Nuclear weapons and the right to life (Art. 6) : . 09/11/1984.CCPR General Comment No. 14. (General Comments) (Stating the General comment on 6 [16] adopted at its 378th meeting on 27 July 1982, the Human Rights Committee)68 General Comment No. 09: Humane treatment of persons deprived of liberty (Art. 10) : . 30/07/1982.CCPR General Comment No. 9. (General Comments) (The humane treatment and the respect for the dignity of all persons deprived of their liberty is a basic standard of universal application which cannot depend entirely on material resources.)69 International Criminal Court Statue Article 7 [http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf]70 ibid71H.O Aggarwal Intenational Law & Human Rights 18th edition p.733