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THE CASE OF NORTH MANCONIA
(REPUBLIC OF NORTH MANCONIA V. UNITED STATES OF MERSEYSTAN)
MEMORIAL SUBMITTED BY
REPUBLIC OF NORTH MANCONIA
(APPLICANT)
REGISTRATION NUMBER:
15-II
ii
(a) TABLE OF CONTENTS
(a) Table of Contents
(b) List of Abbreviations
(c) List of Sources
(d) Statement of Relevant Facts
(e) Issues
(f) Summary of Arguments
(g) Jurisdiction of Court
(h) Argument
iii
(b) LIST OF ABBREVIATIONS
All ER All England Law Reports (England & Wales)
AC Law Reports, Appeal Cases (Third Series) (England & Wales)
Art. Article
ASR International Law Commission Articles on the International Responsibility of
States For Wrongful Acts
C.C.X Telders Case 2012 Clarifications, paragraph X
C.X Telders Case 2012, paragraph X
Diss. Op. Dissenting Opinion
ECJ Court of Justice for the European Communities
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
edn. Edition
ed(s) Editor(s)
GA Res. General Assembly resolution
HRC Human Rights Committee
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
iv
ICTY International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of
Former Yugoslavia since 1991
ILC International Law Commission
ILR International Law Reports
MCBD Male captus bene detentus
MCMD Male captus male detentus
Mr. Neville N
No(s). Number(s)
p(p). page(s) number(ed)
Para(s). Paragraph(s)
PCIJ Permanent Court of International Justice
R. Rex/regina
RNM Republic of North Manconia
SC Res./SCR Security Council resolution
Sep. Op. Separate Opinion
UK United Kingdom
UKHL United Kingdom House of Lords [neutral citation]
UN United Nations
US/USA United States of America
vi
(c) LIST OF SOURCES
1. AWARDS BY COURTS AND TRIBUNALS
1.1 Permanent Court of International Justice
Acquisition of Polish Nationality Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 7 (Sept. 15) hereafter
cited as Polish Nationality
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), PCIJ, Series A, No. 13, 1927;
hereinafter cited as Interpretation of Judgments (Chorzów Factory) hereinafter cited as Chorzów
Factory
Mavrommatis Palestine Concessions Case, 1924 PCIJ, (ser.A) No.2 hereinafter cited as
Mavrommatis
The Case of the SS Lotus (1928) PCIJ (Series A) No 10, hereinafter cited as Lotus
1.2 International Court of Justice
Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 325; hereinafter cited as
Bosnian Genocide, Provisional Measures
Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Preliminary Objections, Judgment, ICJ Reports 1996, p. 595; hereinafter cited as Bosnian
Genocide, Preliminary Objections
Case concerning the Arrest Warrant of 11 April 2000, 11 April 2000 (Democratic Republic of
Congo v. Belgium) hereinafter cited as Arrest Warrant
Corfu Channel Case (Merits), 'Judgement', 9 April 1999, hereinafter cited as Corfu Channel
Gabčíkovo-Nagymaros Project (HungarylSlovakia), Judgment, ICJ Reports 1997, p. 7; hereinafter
cited as Gabčíkovo-Nagymaros
LaGrand case (Germany v. United States of America), Judgment of 27 June 2001 hereinafter cited
as LaGrand
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, ICJ Reports 1986, p. 14; hereinafter cited as Nicaragua.
Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Further Requests for the Indication
of Provisional Measures, 13 September 1999, 1993 ICJ Reports, p.325 hereinafter cited as Bosnia
and Herzegovina v. Yugoslavia (1999)
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro) ICJ Reports 2007 hereinafter cited as Bosnia and
Herzegovina v. Serbia and Montenegro (2007)
United States Diplomatic and Consular Staff in Tehran case, ICJ Reports 1980, p. 21; hereinafter
cited as Iranian Hostages 1.
vii
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Merits, 1980 ICJ REP. 3
hereinafter cited as Iranian Hostages 2.
1.3 ICC, ICTY, and ICTR
Akayesu ICTR-96-4; Trial Chamber judgment 2/9/1998 hereinafter cited as Akayesu
Blaskic (subpoena) 31 ICTY Appeals Chamber's judgment of 29 October 1997 hereinafer cited as
Blaskic (subpoena)
Kayishema & Ruzindana (ICTR-95-1; Trial Chamber judgment 21/5/1999) hereinafter cited as
Kayishema
Krstic ( ICTY Appeals Chamber judgment 19/4/2004) hereinafter cited as Krstic Appeals
Krstic (ICTY Trial Chamber judgment 2/8/2001) hereinafter cited as Krstic Trial
Prosecutor v. Dragan Nikolic, 'Decision on Defence Motion Challenging the Exercise of
Jurisdiction by the Tribunal', Case No. IT-94-2-PT, 9 October 2002 (Trial Chamber) hereinafter
cited as Nikolic 1
Prosecutor v. Dragan Nikolic, 'Decision on Interlocutory Appeal Concerning Legality of Arrest',
Case No. IT-94-2-AR73, 5 June 2003 (Appeals Chamber) hereinafter cited as Nikolic 2
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr.
Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the
Admissibility of the Case, ICC-01/04-01/07- 1497, 25 September 2009, hereinafter cited as
Katanga
Prosecutor v Blaskic, Appeals Chamber, 29 October 1997, Judgement on the Request of the
Republic of Croatia for Review of the Decision of Trial Chamber of 18 July 1997, hereinafter cited
as Blaskic
Second Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan
Ahmad Al Bashir, ICC PT Ch.I 12.07.2010 hereinafter cited as Omar Al Bashir
1.4 European Court of Human Rights
Al-Adsani v. The United Kingdom, [2001] ECHR 35763/97; hereinafter cited as Al-Adsani.
Illich Sanchez Ramirez v France (App no 28780/95) (1996) 86 DR 155, E Com HR, hereinafter
cited as Illich Sanchez Ramirez
Ocalan v. Turkey, 18 BHRC 293 (2005) hereinafter cited as Ocalan
Stocke v. Germany, 13 Eur. Ct. H.R. 839 (1991) hereinafter cited as Stocke
1.5 Human Rights Commission
Lilian Celiberti de Casariego v. Uraguay, Communication No.056/1979, views of 29 July 1981, UN
Doc. CCPR/C/OP/1 (1984) hereinafter cited as Lilian Celiberti
Lopez v Uruguay, Communication No R12/52, Decision of 29 July 1981 reproduced in 68
International Law Reports 29 hereinafter cited as Lopez
viii
Maria del Carmen Almeida de Quinteros et al. v. Uruguay, Communication No.107/1981 (21 July
1983), UN Doc. CCPR/C/OP/2 hereinafter cited as Maria del Carmen
Sergio Ruben Lopez Burgos v. Uruguay, Communication No.R.12/52 (29 July 1981), UN Doc.
Supp. No. 40 (A/36/40) hereinafter cited as Sergio Ruben Lopez Burgos
1.6 Inter- American Court of Human Rights
Velasquez Rodriguez (Compensation), 95 I.L.R. 306, 314, P 25 (Inter-Amer. C.H.R. 1989)
hereinafter cited as Velasquez Rodriguez
Velasquez Rodriguez, IACtHR, Decision of 29 July 1988, 9 Human Rights Law Journal (1988) 212
hereinafter cited as Velsaquez Rodriguez (1988)
1.7 Permanent Court of Arbitration
Savarkar case, in 'Award of the Permanent Court of Arbitration in the Case of Savarkar, between
France and Great Britain, Feb. 24, 1911', American Journal of International Law 5, 1911, pp.520-
523 hereinafter cited as Savarkar
1.8 Awards by other international tribunals including arbitral awards
Chattin v United Mexican States (United States/Mexico) IV RIAA 282, 295 (1927) hereinafter cited
as Chattin
Parrish v United Mexican States (United States/Mexico) IV RIAA 314, 315-316 (1927) hereinafter
cited as Parrish
Prosecutor v. Tadic, Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1, 1995;
hereinafter cited as Tadic.
Prosecutor v. Furundzija, IT-95-17/1, Judgment of the 10 December 1998; hereinafter cited as
Furundzija
Rainbow Warrior case, 74 ILR 241 (arb. 1987) hereinafter cited as Rainbow Warrior
Spanish Zones of Morocco Claims (Spain/United Kingdom) II R.I.A.A. 615, 641 (1925) hereinafter
cited as Spanish Zones
Woodpulp (Ahlstrom Osakeyhtio v Commission, Cases 89/95 [1988] ECR 5193 hereinafter cited as
Woodpulp
1. 9 Municipal Courts
Application for Arrest Warrant Against General Shaul Mofaz, First instance, unreported (Bow
Street Magistrates' Court) 12 February 2004 hereinafter cited as Mofaz
Attorney-General v Eichmann (1961) 36 ILR 5 68-71 (DC), (1962) 305-306 (Israeli Supreme
Court) hereinafter cited as Eichmann
Auto del Juzgado Central de Instucción No. 4 (2008) hereinafter cited as Auto del Juzgado
ix
Barbie, Judgment of Oct. 6, 1983, Cass. crim., 78 I.L.R. 125, 131 (France) hereinafter cited as
Barbie
Beahan v Zimbabwe, 4 September 1991, International Law Reports, Vo.103 (1996), pp.203-224
(Zim.) hereinafter cited as Beahan
Bouzari v Islamic Republic of Iran 124 ILR 427 hereinafter cited as Bouzari
Dusko Cvjetkovic 15Os99/94, 13 July 1994 (German Supreme Court) hereinafter cited as Dusko
Cvjetkovic
Fiscal v Samper, 22 June 1934, Annual Digest and Reports of Public International Law Cases, Vol.9
(1938-1940), Case No.152, pp.402-405 (Spain) hereinafter cited as Fiscal
Frisbie v. Collins, 342 U.S. 519 (1952) hereinafter cited as Frisbie
German Bundesgerichtshof, Urteil vom. Apr. 30, 1999, 3StR 215/98 hereinafter cited as GB 1999
Ghaddafi case, Arrêt no. 1414 (2001), 125 ILR 456 (France: Cour de Cassation) hereinafter cited as
Ghaddafi
In Re Javor, Bull. Crim., 1996, No. 132 (France) hereinafter cited as In Re Javor
In re Jolis, 22 July 1933, Annual Digest and Reports of Public International Law Cases, Vol.7
(1933-1934), Case No.77, pp.191-192 (France) hereinafter cited as In Re Jolis
In Re Munyeshyaka, Bull. Crim., 1998, No. 2 (France) hereinafter cited as In Re Munyeshyaka
Jones v Saudi Arabia [2006] UKHL 26 hereinafter cited as Jones v Saudi Arabia
Ker v. Illinois, 119 U.S. 436 (1886) hereinafter cited as Ker
Levinge v Director of Custodial Services (1987) 27 A Crim R 163 (New Zeal) hereinafter cited as
Levinge
Plaintiffs A, B, C, D, E, F v. Jiang Zemin, 282 F Supp 2d 875 (ND Ill., 2003) hereinafter cited as
Jiang Zemin
Prosecutor v. 'The Butare Four', Assize Court of Brussels, Verdict of 8th June 2001 hereinafter cited
as The Butare Four
Public Prosecutor v. Jorgic, 26 September 1997 (Germany) hereinafter cited as Jorgic
Re Argoud, 4 June 1964, International Law Reports, Vol.45 (1972), p.106 (Court of Cassation
(Criminal Chamber), France) hereinafter cited as Re Argoud
Re Box Xilai 128 ILR (2005) 713 hereinafter cited as Re Box Xilai
Regina v. Horseferry Rd. Magis. Ct. (Ex parte Bennett), [1994] 1 A.C. 42 (U.K.) hereinafter cited as
Bennett
Re Sharon and Yaron, 42 ILM (2003) 596 (Belgium: Cour de Cassation) hereinafter cited as Re
Sharon and Yaron
x
Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 (HL) hereinafter cited as
Rio Tinto Zinc Corp.
R v Hartley [1978] 2 NZLR 199 (New Zeal.) hereinafter cited as Hartley
R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte
(Amnesty International and others intervening) (No. 3) [2000] 1 AC 147; [1999] 2 All ER 97;
hereinafter cited as Pinochet (No.3)
R. v. Bow Street Magistrates, Ex parte Mackeson, 75 Crim. App. 24 1981 (U.K.) hereinafter cited as
Mackeson
R v Finta [1994] 1 S.C.R. 701, 811. (Canada) hereinafter cited as Finta
R v Mullen, [2000] Q.D. 520 (U.K Court of Appeal) hereinafter cited as Mullen
State v Ebrahim 95 I.L.R. 417 (South Africa 1992) hereinafter cited as Ebrahim
Swiss Tribunal federal of 30 July 1979
Tachiona v. Mugabe, 169 F Supp 2d 259 (SDNY 2001) hereinafter cited as Tachiona
Texaco v. Libyan Arab Republic, 53 I.L.R. 389, 497-508 (1977) hereinafter cited as Texaco
US v Aluminium Co of America, 148 F. 2d 416 (1945) hereinafter cited as Aluminium Co
United States v. Alvarez-Machain, 504 U.S. 655 (1992) hereinafter cited as Alvarez- Machain
United States v. Toscanino 500 F 2d 267 (1975) (U.S.) hereinafter cited as Toscanino
United States v. Yunis, 924 F.2d 1086, 1090 (D.C. Cir. 1991) hereinafter cited as Yunis
1.10 Domestic Legislation
French Penal Code 2005
German Penal Code 1998
Italian Criminal Code 1988
Swiss Penal Code 1937
War Crimes Act 1991, c.13, s.2 (UK)
War Crimes Amendment Act 1988, s.11 (Australia)
2. TREATIES
Charter of the United Nations, 1945
Convention Against Torture, 1984
Convention on Special Missions, 1969
Geneva Convention 1949
xi
Genocide Convention 1948
International Covenant on Civil and Political Rights, 1966
International Covenant on Economic, Social and Cultural Rights, 1966
Vienna Convention on the Law of Treaties, 1969
Vienna Convention on the Succession of States in respect of Treaties, 1978
Rome Statute for the International Criminal Court, 1998 hereinafter cited as Rome Statute
United Nations Convention on Jurisdictional Immunities of States and their Property, 2004
hereinafter cited as UN Immunities Convention
3. BOOKS
Cassese, A., International Criminal Law (2nd edn, 2008) hereinafter cited as Cassese, 2008
Evans (ed), International Law 3rd edn (Oxford : Oxford University Press, 2010), hereinafter cited
as Evans, 2010
Fox, H., The Law of State Immunity (Oxford: Oxford University Press. 2002) hereinafter cited as
Fox, 2002
Paulussen, C., Male captus bene detentus? Surrending suspects to the International Criminal Court,
Antwerp/Oxford/Portland: Intersentia, 2010 hereinafter cited as Paulussen, 2010
Rodley, N.S., The Treatment of Prisoners Under International Law, Clarendon Press: Oxford, 1999
hereinafter cited as Rodley, 1999
Robert Jennings and Arthur Watts (eds.), Oppenheim‟s International Law, 9th Edition, Longman,
1992 hereinafter cited as Oppenheim
Schabas, W., Genocide in International Law: The Crime of Crimes, Cambridge: Cambridge
University Press, 2009 hereinafter cited as Schabas, 2009
4. ARTICLES IN BOOKS, JOURNALS OR ONLINE DATABASES
Akande, D., International Law Immunities and the International Criminal Court, 98 AJIL (2004)
407 hereinafter cited as Akande, 2004
Akande, D., Shah, S., Immunities of State Officals, International Crimes, and Foreign Domestic
Courts, EJIL Vol. 21 (4), 2011 hereinafter cited as Akande, 2011
Barker, ‘The Future of Former Head of State Immunity After Ex Parte Pinochet ’, 48 ICLQ (1999)
937 hereinafter cited as Barker, 1999
Bassiouni, C., International Extradition: United States Law and Practice, 1987, Vol.I hereinafter
cited as Bassiouni, 1987
xii
Bassiouni, C., 'The History of Universal Jurisdiction and Its Place in International Law', in
Universal Jurisdiction, S. Macedo (ed.), University of Pennsylvania Press: Philadelphia, 2003, 39-
63, pg. 56 hereinafter cited as Bassiouni, 2003
Bassiouni, C., and Wise, E., Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in
International Law, Dordrecht/Bostin/London: Martinus Nijhoff Publishers, 1995, pp.43-69
hereinafter cited as Bassiouni, 1995
Benavides, L., 'The Universal Jurisdiction Principle: Nature and Scope', Anuario Mexicano de
Derencho International, Vol.1, 2001, pp.32-36 hereinafter cited as Benavides, 2001
Bianchi, ‘Immunity Versus Human Rights: The Pinochet Case’, 10 EJIL (1999) 237 hereinafter
cited as Bianchi, 1999
Broomhall, B., International Justice and the International Criminal Court (2003) 130-131
hereinafter cited as Broomhall, 2003
Bush, J.A., 'How Did We Get Here? Foreign Abduction After Alvarez-Machain', Stanford Law
Review 45, 1992-1993, p.943 hereinafter cited as Bush, 1992
Byers, “Comment on Al Adsani v. Kuwait”, 67 British Yrbk Int’l L (1996) 537 hereinafter cited as
Byers, 1996
Cassese, A., 'Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal
Jurisdiction', JICJ 1 (2003), 589-95, pg. 593 hereinafter cited as Cassese, 2003
Clapham, A., ‘National Action Challenged: Sovereignty, Immunity and Universal Jurisdiction
before the International Court of Justice’ in Lattimer and Sands (eds) Justice for Crimes against
Humanity (Hart Publishing, Oxford, 2003 ) Chapter 12 hereinafter cited as Clapham, 2003
Costi, A., 'Problems with current international and national practices concerning extraterritorial
abductions', Revue Juridique Polynesienne 9, 2003, p.61 hereinafter cited as Costi, 2003
Currie, R., 'Abducted fugitives before the International Criminal Court: problems and prospects',
Criminal Law Forum, Vol. 18 (¾), 2007, pp.349-393, hereinafter cited as Currie, 2007
Denza, ‘Ex Parte Pinochet : Lacuna or Leap’, 48 ICLQ (1999) 949 hereinafter cited as Denza, 1999
De Schutter 'Competence of the National Judiciary Power in Case the Accused Has Been
Unlawfully Brought Within the National Frontiers', Revue Belge de Droit International 1, 1965,
p.123 herinafter cited as De Schutter, 1965
Fox, ‘The Resolution of the Institute of International Law on the Immunities of Heads of State and
Government’, 51 ICLQ (2002) 119. Hereinafter cited as Fox, 2002
Gaeta, ‘Official Capacities and Immunities’, in A. Cassese et al. (eds), Commentary on the
International Criminal Court (2002), at 975 hereinafter cited as Gaeta, 2002
Gallagher, ‘Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High
Level United States Officials Accountable for Torture’, 7 J Int'l Criminal Justice (2009) 1087
hereinafter cited as Gallagher, 2009
Garcia-Mora, 'Criminal Jurisdiction of a State over Fugitives Brought from a Foreign Country by
Force or Fraud: A Comparative Study', Indiana Law Journal 32, 1957, p.446 herinafter cited as
xiii
Garcia-Mora, 1957
Hartmann, ‘The Gillon Affair’, 54 ICLQ (2005) 745 hereinafter cited as Hartmann, 2005
Harvard Research in International Law (1935) "Draft Convention on Jurisdiction With Respect to
Crime" 29 AJIL Special Supplement Part II 435, 623-624 hereinafter cited as Harvard Research
Horsington, H., 'The Cambodian Khmer Rouge Tribunal: The Promise of a Hybrid Tribunal',
Melbourne Journal International Law 5, 2004, p.462 hereinafter cited as Horsington, 2004
Inazumi, M., Universal Jurisdiction in Modern International Law: Expansion of National
Jurisdiction for Prosecuting Serious Crimes under International Law, Antwerpen, Oxford:
Intersentia, 2005, pp.149-150. Hereinafter cited as Inazumi, 2005
Inter-American Juridical Committee, Legal Opinion on the Decision of the U.S. Supreme Court in
the Alvarez-Machain Case, in 13 HRLJ 395, 397 (1992) hereinafter cited as Alvarez Machain
Legal Opinion, 1992
Jennings “The Caroline and McLeod Cases” 32 AJIL (1938) at 92-99 hereinafter cited as Jennings
1938
Kress, C., 'Universal Jurisdiction over International Crimes and the Institut de Droit international',
Journal of International Criminal Justice 4 (2006), 561-585 hereinafter cited as Kress, 2006
Loan, J., 'Soza v Alvarez-Machain: Extraterritorial Abduction and the Rights of Individuals under
International Law', ILSA J. Int'l & Comp L. 12, 2005, pp.253-300 hereinafter cited as Loan, 2005
Mann, F.A., 'Reflections on the Prosecution of Persons Abducted in Breach of International Law', in
Mann (ed) Further Studies in International Law, 1990 hereinafter cited as Mann, 1990
McNeal, G., and Field, B., 'Snatch-and-Grab Ops: Justifying Extraterritorial Abduction', Transnat'l
L. & Contemp. Probs. 16, 2006-2007 pp.491-522 hereinafter cited as McNeal, 2006
Michell, P., 'English-Speaking Justice: Evolving Responses to Transational Forcible Abduction
After Alvarez-Machain, Cornell International Law Journal 29, 1996, p.411 hereinafter cited as
Michell, 1996
Moore, J.; A Digest of International Law, vol.II (1906) hereinafter cited as Moore, 1906
Morgenstern, H., 'Jurisdiction in Seizures Effected in Violation of International Law', 29 BYIL,
1952, p.279 hereinafter cited as Morgenstern, 1952
Murphy, ‘Head-of-State Immunity for Former Chinese President Jiang Zemin’ in ‘Contemporary
Practice of the United States Relating to International Law’, 97 AJIL (2003) 962, at 974–977
hereinafter cited as Murphy, 2003
Orakhelashvili, ‘International Decisions: Arrest Warrant case’, 96 AJIL (2002) 677 hereinafter cited
as Orakhelashvili, 2002
Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got it Wrong’,
18 EJIL (2007) 955 hereinafter cited as Orakhelashvili, 2007
Orakhelashvili, ‘State Immunity in National and International Law: Three Recent Cases Before the
European Court of Human Rights’, 15 Leiden J Int'l L (2002) 703 hereinafter cited as
xiv
Orakhelashvili, 2002
Orentlicher, D., 'The Future of Universal Jurisdiction in the New Architecture of Transnational
Justice', in Universal Jurisdiction hereinafter cited as Orentlicher, 2004
Ratner, S., 'Belgium's War Crimes Statute: A Postmortem', 97 American Journal of International
Law 888 (2003), pg. 892 hereinafter cited as Ratner, 2003
Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Prinz v. Federal
Republic of Germany’, 16 Michigan J Int’l L (1995) 403 hereinafter cited as Reimann, 1995
Restatement (Third) of Foreign Rel. Law of the United States 404 (1987) hereinafter cited as Third
Restatement
Slaughter, A., 'Defining the Limits: Universal Jurisdiction and National Courts', in Universal
Jurisdiction hereinafter cited as Slaughter, 2004
Stigen, J., 'The Relationship between the Principle of Complementarity and the Exercise of
Universal Jurisdiction for Core International Crimes', Complementarity and the Exercise of
Universal Jurisdiction for Core International Crimes, Forum for International Criminal and
Humanitarian Law Publication Series No. 7, M. Bergsmo (ed.), 2010, p.142 hereinafter cited as
Stigen, 2010
Swart, B., “La place des criteres tradtionnels de competence”, in A.Cassese/ M.Delmas- Marty,
Juridictions nationales et crimes internationaux (Paris: Peresses Universitaires de France, 2002),
562-87, at 575 hereinafter cited as Swart, 2002
Thalmann, V., 'National Criminal Jurisdiction over Genocide', The UN Genocide Convention, P
Gaeta (ed.), Oxford/New York: Oxford University Press, 2009, pp.244-247 hereinafter cited as
Thalmann, 2009
Zappala, S., ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International
Crimes? The Ghaddafi Case before the French Cour de Cassation’, 12 EJIL (2001) 595 hereinafter
cited as Zappala, 2001
Zappala, S., 'International Criminal Jurisdiction over Genocide', The UN Genocide Convention,
p.273 hereinafter cited as Zappala, 2004
5. RESOLUTIONS OF UN BODIE
5.1 Resolutions of the United Nations Security Council
Statute of the International Criminal Tribunal of the Former Yugoslavia 1993 Security Council
Resolution 827 (1993), 25 May 1993 Hereinafter cited as ICTY Statute
Statute of the International Tribunal for Rwanda Security Resolution 977 (1995) 22nd February
1995 hereinafter cited as ICTR Statute
United Nations Security Council Resolution 138, UN Doc S/RES/138 (23 June 1960) hereinafter
cited as SCR 638 1989
United Nations Security Council Resolution 638, UN Doc S/RES/638 (31 July 1989) hereinafter
cited as SCR 638 1989
xv
5.2 Resolutions of the United Nations General Assembly
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations, United Nations General
Assembly Resolution 2625 (XXV) UN Doc A/5217 (1970) hereinafter cited as GA Res. 2625
(1970)
Declaration on the inadmissibility of intervention in the domestic affairs of States and the protection
of their independence and sovereignty, United Nations General Assembly Res. 2131 (XX) (1965)
hereinafter cited as GA Res. 2131 (1965)
Resolution and Declaration on the Protection of all Persons from Enforced Disappearance UN GA
Res 47/133 (1992) hereinafter cited as GA Res. 47/133 (1992)
6. OTHER DOCUMENTS
Arrest Warrant, Counter-Memorial of the Kingdom of Belgium, 28 Sept. 2001 hereinafter cited as
Arrest Warrant, Counter Memorial
Brussels Principles Against Impunity and for International Justice, adopted by the Brussels Group
for International Justice, as emanating from the colloquium 'The Fight Against Impunity: Stakes
and Perspectives' in Brussels, 11-13 March 2002, particularly Principle 14
Canadian Criminal Code, R.S.C., ch. C-46, ss.7(3.71)-(3.73) (1985) (Canada) hereinafter cited as
Brussels Principles
Canon Garcia v. Ecuador, Communication No.319/1988, views of 5 November 1991, UN Doc.
CCPR/C/43/D/319/1988 (1991) hereinafter cited as Canon Garcia
Djibouti v. France Memorial of the Republic of Djibouti, Mar. 2007 hereinafter cited as Djibouti
Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law
Commission on the Work of its Forty-Eighth Session, UN Doc. A/5/10, Articles 8, 9, 17, 18, and
20. hereinafter cited as DCCAPSM
Institute for International Law, Universal criminal jurisdiction with regard to the crime of genocide,
crimes against humanity and war crimes, Seventeenth Commission, 2005, hereinafter cited as
Resolution on UJ
International Law Commission Articles on the Responsibility of States for Internationally Wrongful
Acts with commentaries, Yearbook of the International Law Commission, 2001, ii (Pt 2) (UN Doc.
A/56/10); hereinafter cited as ARS or ARS with commentaries.
Karagiannakis, ‘State Immunity and Fundamental Human Rights’, 11 Leiden J Int’l L (1998) 9
hereinafter cited as Karagiannakis (1998)
Kolodkin, A., Special Rapporteur, Preliminary report on immunity of State officials from foreign
criminal jurisdiction, U.N. Doc. A/CN.4/631 hereinafter cited as Kolodkin (2008)
Office of the High Commissioner for Human Rights, General Comment No.24: Issues relating to
the reservations made upon ratification or accession to the Covenant or the Optional Protocols
thereto, or in relation to declarations under article 41 of the Covenant, 4 November 1994,
CCPR/C/21/Rev.1/Add.6 hereinafter cited as OHCHR, General Comment No.24
xvi
Princeton Principles on Universal Jurisdiction, 2001 hereinafter cited as Princeton Principles
Proceedings in England regarding Israeli Minister Ehud Barak, ; Written Ministerial Statement by
Mr Henry Bellingham (Under-Secretary of State for Foreign Affairs), HC Deb., 13 Dec. 2010, Vol.
520, 72WS hereinafter cited as Ehud Barak
Projet de loi relative aux violations graves du droit humanitaire, 23 July 2003, Belgian Parliament,
Doc. 51 01/03/2001 hereinafter cited as Projet de loi relative aux violations graves du droit
humanitaire hereinafter cited as Projet de loi relative aux violations graves du droit humanitaire
Record of Public Sitting, Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, Provisional Measures, 1 April 1993, CR 1993/12; hereinafter cited as Record
of Public Sitting, Bosnian Genocide
Report on the International Commission of Inquiry on Darfur to the UN Secretary- General of 25
January 2005, § 614 hereinafter cited as Darfur Report, 2005
Report of the Working Group on Arbitrary Detention, UN ESCOR, Hum Rts Comm, 50th Sess,
Agenda Item 10, 139-140, UN Doc E/CN.4/1994/27 (1993) hereinafter cited as Report of the
Working Group on Arbitrary Detention
The Institute for International Law, 17th Commission, Resolution on Universal criminal jurisdiction
with regard to the crime of genocide, crimes against humanity and war crimes, 2005 hereinafter
cited as Resolution on UJ
U.S. Dep't of Justice Memo on United States v. Alvarez-Machain, Jan. 1993, 32 I.L.M. 277
hereinafter cited as U.S. Dep't of Justice Memo
Newspapers
Beeston, ‘Iran threatens to hit back over diplomat's arrest’, The Times, 28 Aug. 2003 hereinafter
cited as Beeston, 2003
Caribbean Leaders Criticize U.S. Court Decision, Xinhua General News Service, July 3, 1992
hereinafter cited as Newspaper A
Iran Head of Judiciary Condemns U.S. Supreme Court for "Kidnapping" Decision, BBC Summary
of World Broadcasts, June 27, 1992 hereinafter cited as Newspaper B
Judicial Officials Condemn U.S. Supreme Court Decision on Seizure of Suspect, BBC Summary of
World Broadcasts, June 23, 1992 hereinafter cited as Newspaper C
Latin America: Mexican Protests Against Second DEA Kidnapping, Inter Press Service, June 18,
1992 hereinafter cited as Newspaper D
Latin America: Unanimous Criticism of U.S. Supreme Court Decision, Inter Press Service, June 17,
1992 hereinafter cited as Newspaper E
McGreal, ‘Sharon's Ally Safe from Arrest in Britain’, The Guardian, 11 Feb. 2004 hereinafter cited
as McGreal, 2004
McLeod incident, British and Foreign Papers, vol. 29L hereinafter cited as McLeod
xvii
McRae, D., & Cohen, M., International Law Badly Shaken by U.S. Ruling, Ottawa Citizen, July 28,
1992, at A9 hereinafter cited as Newspaper F
Osborn, ‘Danish protests greet Israeli envoy’, The Guardian, 16 Aug. 2001 hereinafter cited as
Osborn, 2001
Reaction to U.S. Supreme Court Decision Endorsing Right to Kidnap Foreigners for Prosecution in
U.S., Noti Sur South American and Caribbean Affairs, June 30, 1992, hereinafter cited as
Newspaper G
xviii
(d) STATEMENT OF RELEVANT FACTS
The Republic of Manconia (RoM) achieved independence from the United States of Merseystan
(USM) on the 5th July 1965. On the 1st February 1996, RoM joined the United Nations. Following
tensions between the Blues and the Reds in the region, an armed group called the Keanos of North
Manconia was established in order to coordinate the insurrectionary movement. The Red –
dominated group then made a Declaration of Independence in Redville on the 5th July 1999 which
caused clashes between them and the units of the Armed Forces of the Republic of Manconia. This
is when USM brought the matter before the United Nations Security Council.
On the 5th July 2008 the Republic of North Manconia becomes the world’s 193rd state. RNM joins
the United Nations on the 7th Decemeber 2008 and 50,000 Blues resettle to USM around that
period. By mid 2009 there are protests, increased crime rate, and rivals being to appear.
Consequently, the President of RNM visits Orangestan in order to seek financial assistance in which
he receives 2 billion in aid for RNM. On the 9th July 2009, a celebratory dinner is held by
Orangestan and the President is pronounced dead the next day. This lead to suspicions that the
Blues were responsible for the President’s death, and on the 18th July 2009 many unarmed Blues
around Redvilled are killed and hundreds are beaten.
The attacks continue to spread and on the 25th July 2009 leading Keanos employ radios in order to
incite the Red population to take revenge. DJ Gerry Neville also uses the radio in order to incite
listeners to “squash the Blues”. As a response to the situation in RNM, the Security Council adopts
Resolution 3778 (2009) on the 30th July 2009 and Resolution 3782 (2009) on the 5th August 2009.
By the 15th August 2009, the effect of the attacks on the Blues have reduced their population from
600,000 to 70,000 with the number of deaths amounting 320,000. Over 200,000 fled, 120,000 of
which crossed to the RoM to refugee camps. Several of the Blues who could afford flights flew to
USM.
By 25th August 2009, the attacks on the Blues have discontinued and the ruling Red regime agrees
to a cease-fire and peace talks. Under an Agreement on National Reconciliation of the Republic of
xix
North Manconia, a government of national unity is formed. The government is made up primarly of
Reds who agree to establish a hybrid UN-RNM tribunal.
Gerry Neville is appointed as the RNM government’s Minister for Culture, Media and Sport on the
1st Decemeber 2009. Two months later, a new government takes office in USM and decides to take
action in relation to the crimes which had been committed in RNM between July and August 2009.
USM prosecutors open domestic criminal proceedings against Mr Neville for the crime of inciting
genocide between 28th July and 15th August 2009. On the 10th May 2010, USM requests RNM to
extradite Mr Neville for the purposes of this prosecution. RNM refuses the request for extradition
on the 20th July 2010.
During the year 2010, representative of the Blue community in RNM initiate civil proceedings in
RNM against various individuals accused of involvement in genocide. A test case is brought against
Mr Neville and other Red members of the current government on the 15th January 2011 but it was
struck out on the basis that under RNM law Ministers of State have immunity from civil action.
On the 1st May 2011, Mr Neville is invited, in his ministerial capacity, to attend the Regional
Culture Ministers meeting in Orangestan. The government of USM contacts Orangestan to explore
the possibility of Orangestan arresting Mr Neville and extraditing him to USM. In order to preserve
international comity, the government of Orangestan refuses to do so. A Special Forces unit
consequently enters Orangestan covertly and kidnaps Mr Neville on the 12th May 2011. He is then
brought before a local magistrate and refused bail.
The RNM government registered strong protests with USM directly and the UN Security Council
and demanded the immediate release of Mr Neville. Mr Neville objects to being tried due to lack of
jurisdiction, his immunity as serving minister, and the manner in which he was brought before the
Court. His case was appealed to the USM Supreme Court but was dismissed on all three of his
objections. His trial is scheduled to start in the criminal court of first instance on the 5th May 2010.
xx
RNM instituted proceedings against USM before the International Court of Justice on the 3rd
March 2012. Proceedings were issued in relation to alleged violations of the rights of its national,
Mr Neville and requests the Court to adjudge and declare that:
USM lack jurisdiction, USM has violated the immunity from criminal jurisdiction of Mr Neville,
and the Courts of USM lack jurisdiction over Mr N. because he was illegally abducted from a
foreign State.
xxi
(e) ISSUES
The Republic of North Manconia respectfully asks the Honourable Court to consider the following
questions:
A. Does USM have jurisdiction to try Neville in their courts?
1. Does USM have territorial jurisdiction over the alleged acts of Mr. Neville?
a.Did the alleged acts of Mr Neville occur on USM territory?
b.Could the effects of Mr. Neville's alleged acts be said to have occurred on USM territory?
2. Does USM have nationality jurisdiction over the alleged acts of Mr. Neville?
a.Was Mr. Neville a national of USM before or at the time of the commission of his alleged
acts?
3. Does USM have passive personality jurisdiction over the alleged acts of Mr. Neville?
a.Were the victims of the alleged acts of Mr. Neville nationals of USM before or at the time
of the commission of those alleged acts?
4. Does USM have protective jurisdiction over the alleged acts of Mr. Neville?
5. Can USM exercise UJ over the alleged acts of Mr. Neville?
a. What is the content or scope of the principle of UJ?
b. Can the existence or scope of the principle of UJ be isolated with any certainty on the basis
of accepted sources of international law?
c. What conditions may attach to the exercise of UJ? Can USM fulfil these conditions?
d. May the aim of invoking UJ in prosecuting acts of genocide override conditions upon its
exercise?
e. Need the failure to exercise UJ in any particular instance entail impunity?
B. Is Neville immune from being tried in the municipal courts of USM?
1. Has RNM waived immunity in relation to N being tried in the courts of USM?
xxii
2. Is N entitled to personal immunity from being tried in the courts of USM?
3. Is N entitled to functional immunity from being tried in the courts of USM?
4. Do Neville’s actions of inciting genocide amount to a breach of a jus cogens norm?
5. Do Neville’s actions of inciting genocide constitute war crime and/or crimes against humanity?
6. If Neville’s actions do amount to a breach of a jus cogens norm, war crimes, and/or crimes
against humanity, does that prevent him from being immune in relation to being tried in USM?
C. Was the abduction of Mr. Neville by USM in Orangestan a breach of RNM or Orangestan's
sovereignty?
1.What are the legal consequences of abducting a serving Minister of government in the territory of
a foreign third-party State?
2. Was Mr. Neville's abduction a breach of international human rights norms?
(i) Is the abduction of Mr. Neville a breach of the ICCPR, which USM has ratified?
(ii) Is there a customary international law right against arbitrary arrest and detention and, if so,
has USM breached it in abducting Mr. Neville?
3. What are the consequences in international law of the illegality of the abduction of Mr. Neville in
respect of the exercise of jurisdiction over his alleged acts by USM's courts?
(i) Is MCBD a rule of international law?
(ii) If not, what precludes exercise of jurisdiction by a State's courts?
(iii) If it is a rule of international law that breaches of international precludes the exercise of
jurisdiction, are there any exceptions to this rule?
(iv)What interests and principles may such a rule serve?
D. What remedies is RNM entitled to the alleged breaches of international law?
4. What remedy is required for USM's alleged breach of the sovereignty of both RNM and
xxiii
Orangestan?
5. What remedy is required for USM's alleged breach of Art.9 ICCPR and the customary law
right against arbitrary arrest and detention?
6. What circumstances, if any, preclude the provision of the remedies otherwise available? Do
they obtain?
7. What obligations on States, if any, when unfulfilled, preclude the provision of the remedies
otherwise available? Do they remain unfulfilled?
xxiv
(f) SUMMARY OF ARGUMENTS
A. Jurisdiction
1. USM lacks jurisdiction over the alleged acts of Mr. Neville, which were committed outside USM
territory and did not involve USM nationals
a) Territorial jurisdiction permits courts of the State where the crime is committed to exercise
jurisdiction. As Mr. Neville's alleged acts occurred on RNM territory alone, USM lacks jurisdiction
over his alleged acts.
b) No invocation of the 'Effects doctrine' can grant USM exercise of territorial jurisdiction. A
separation must be made between the constituent parts of the alleged genocide and its incidental
features, only the former of which may suffice for the 'Effects doctrine'. The movement of persons
from RNM to USM was in response to the alleged genocide and thereafter an incidental feature.
2. USM lacks jurisdiction over the acts of Mr. Neville as they did involve USM nationals
a) Nationality of the suspect is universally recognised as a basis for jurisdiction over extra territorial
acts where the perpetrator is the national of the forum state. As Mr. Neville was not a national of
USM before or at the time of the commission of his alleged acts, USM cannot exercise nationality
jurisdiction over his alleged acts.
b) Passive personality jurisdiction provides that aliens may be punished for acts abroad harmful to
nationals of the State of forum. USM cannot exercise passive personality jurisdiction of over Mr.
Neville's alleged acts as the victims were not nationals of USM before or at the time of the
commission of Mr. Neville's alleged acts.
c) USM lacks protective jurisdiction over the acts of N as they did not pose a threat to it and the
number of individuals who travelled there is minimal in comparison to Orangestan and other areas.
xxv
3. USM cannot exercise UJ over the alleged acts of Mr. Neville:
a) Uncertainty abounds in respect of scope and very existence of UJ. State practice and other
authority remains very much divided, setting no clear standard under which jurisdiction may be
exercised independently of the hitherto accepted bases of jurisdiction for the crime of genocide.
b) In the alternative, to the extent that a rule of UJ can be said to exist, USM simply cannot exercise
UJ over Mr. Neville's alleged acts as it fails to fulfil the conditions attached to it for its exercise.
These conditions arise from State practice and judicial and scholarly opinion, and their fulfilment is
required for the exercise of UJ. In abducting Mr. Neville, a serving Minister of the RNM
government, and launching a prosecution against him in USM in disregard of the principle of
territorial priority, USM failed to fulfil these conditions.
c) It is denied that the purpose of UJ for the prosecution of genocide may override conditions upon
its exercise and safeguards against its abuse.
d) Failure to exercise UJ in any one case need not entail impunity. Nothing has been shown to
suggest that Mr. Neville will not face prosecution in future. The case of Cambodia demonstrates
that current barriers to prosecution, such as that of establishing a Hybrid Tribunal, are ultimately
lifted. USM has failed to exercise restraint in waiting for justice to be done in RNM.
B. Immunity
a) N is immune from criminal prosecution in the municipal courts of USM
b) As there is not statute or document which governs the UN-hybrid tribunal there is no evidence
that the Republic of North Manconia has waived immunity. The Republic of North Manconia has
not acted in a manner which implicity or explicitly waives Neville’s immunity.
c) Neville was representing the Republic of North Manconia on the international plane and the
performance of his functions impacts on relations with other States therefore he is entitled to
personal immunity from being tried in the courts of the United State of Merseystan.
d) In the alternative, Neville is entitled to functional immunity as his actions formed part of the
insurrectional movement at the time and he was consequently appointed Minister for Media.
xxvi
e) It has been generally accepted that the crime of inciting genocide does amount to a breach of jus
cogens norm however it is not generally established that the imposition of individual criminal
responsibility for that crime, as a norm, rises to the level of jus cogens. It has been generally
accepted that the crime of inciting genocide does constitute a war crime and/or crime against
humanity.
f) That N’s actions constitute a breach of a jus cogens norm, a war crime and a crime against
humanity does not conflict with his immunity from being tried in the courts of the United States of
Merseystan. N’s immunity does not equate to impunity, demonstrated by the Republic of North
Manconia’s willingness and agreement in relation to the establishment of the UN-hybrid tribunal.
C. Abduction
1. The abduction is illegal as a breach of Orangestan's sovereignty
a) Any exercise of enforcement jurisdiction within the territory of another state, absent express
consent, or interference with its internal and external affairs is a breach of its sovereignty. In
abducting Mr. Neville, a serving Minister of the RNM government on Orangestan's territory, USM
has violated the sovereignty of both Orangestan and RNM.
2. The abduction is illegal by breach of customary international human rights law
a) USM is bound not to arbitrarily arrest and/or detain individuals by both the ICCPR, which it has
ratified, and customary international law. Extra-territorial abduction has been consistently judicially
recognised to violate rights against arbitrary arrest and detention by multiple human rights
conventions. Both Mr. Neville's initial abduction and his two-day detention without judicial
supervision constitute a breach of the customary law right against arbitrary arrest and detention and
Article 9 ICCPR.
3. The illegality of the abduction precludes exercise of jurisdiction by USM's courts
a) It is denied that male captus equals bene detentus. It is a rule of customary international law that
breaches of international law that constitute a violation of the rule of law preclude exercise of
xxvii
jurisdiction by the courts of the breaching State. As a violation of State sovereignty and the
international human rights norm to which USM is bound, the abduction of Mr. Neville was in
violation of international law and that this breach constitutes a violation of the rule of law. USM's
courts cannot exercise jurisdiction over the alleged acts of Mr. Neville.
c) It is denied that the MCMD rule is engaged only in cases of substantial mistreatment of the
abductee. The weight of judicial and scholarly opinion supports the proposition that the rule can be
engaged where no mistreatment has occurred but where the rule of law has been violated.
d) It is denied that invocation of the principle of UJ permits the employment of extra-territorial
enforcement jurisdiction under international law. Such a proposition finds no support in judicial
opinion, and the weight of scholarly opinion denies it. Even in respect of suspects charged with the
crime of genocide, the claim of UJ over such crimes cannot defeat the illegality of an abduction in
pursuance of the exercise of the enforcement jurisdiction of the State claiming UJ.
e) MCMD does not yield an exception for those convicted of serious crimes such as genocide. The
rule of law requires that States be forced to avoid enforcement measures illegal under international
law, and an exception for serious crimes would nullify the aim of MCMD, the preservation of the
rule of law. Failure to abduct, in the exercise of UJ, need not entail impunity.
f) For States to seek to try foreign nationals whose conduct abroad they have criminalised by
domestic statute, and whom they have abducted in the enforcement of that statute, is for national
sovereignty to extend past national boundaries and onto the international plane. MCMD provides
the safeguards required to protect against the abuse this may constitute.
4. USM must release and return or permit the return of Mr. Neville to RNM:
a) It is a rule of customary international law that protest by the injured State and the request for
return entails that the abductee must be repatriated to the injured State. Restitution entails the return
of Mr. Neville to RNM. For the breach of RNM's sovereignty, Mr. Neville must be returned. It is
accepted that RNM cannot claim reparations for the breach of Orangestan's sovereignty.
xxviii
b) The required remedy for both the customary international law right and Art.9 ICCPR is release of
the abductee, permission for him or her to leave the country, and an apology from the abducting
State to the State of which the abductee is a national.
c) The maxim, dolo facit qui petit quod statim redditurus est, does not preclude RNM from
requesting the return of Mr. Neville, as RNM were under no obligation to extradite or prosecute Mr.
Neville such as to engage the maxim. No obligation exists in customary law in respect of genocide.
Nor is there an obligatory rule of UJ such as would also engage the maxim. Regardless, were the
maxim applicable and it supported a denial of the return of Mr. Neville for violation of RNM or
Orangestan's sovereignty, it would have no bearing on the remedy for violations of human rights
law.
xxix
(g) JURISDICTION OF THE COURT
The Republic of North Manconia and the United States of Merseystan are both members of the
United Nations and parties to the ICJ Statute. Each of them has accepted the compulsory
jurisdiction of the Court by means of a declaration deposited with the Secretary-General of the
United Nations pursuant to article 36, paragraph 2 of the ICJ Statute; there are attached no relevant
reservations.
1
A. USM lacks jurisdiction over the alleged acts of N, which were committed outside USM
territory and did not involve USM nationals
1. USM lacks territorial jurisdiction over the alleged acts of N
Territorial jurisdiction permits courts of the State where the crime is committed to exercise
jurisdiction.1 It has received universal recognition. Territorial jurisdiction over crimes of genocide is
widely recognised in national legislation.2 Two bases of jurisdiction, subjective and objective, can
be isolated. The former concerns the place where the offence took place while the latter takes into
consideration the place where the effects occurred. The 'Effects doctrine' extends the objective
jurisdiction further to encompass more than the distinct physical elements of the crime.3 It is
distinguished from objective territorial jurisdiction in that it does not rely upon some element of
inter-territorial conduct.4 This has been met with strong protests and cases which appear to apply it5
only do so where inter-territorial conduct is present.6 Its status in international law is therefore
dubious. N's radio broadcasts were transmitted within the city of Redville.7 There is no indication
that the radio broadcasts reached any another country. Therefore, the acts with which N is charged
took place on RNM soil alone, whether understood by objective or subjective territoriality. Also, for
the 'Effects doctrine' to be engaged, if it exists in international law, USM would have to prove that
expulsion of Blues was a direct part of the genocide committed in RNM, and not merely an
incidental effect. This has not been proven, only that Blues fled RNM in response to the acts
committed there. USM therefore lacks territorial jurisdiction.
1 Lotus pg. 18
2 Art 8 of the Swiss Penal Code; Art 113-2 of the French Penal Code; Section 3 of the German
Penal Code; Art 6 of the Italian Penal Code.
3 Aluminium Co; Rio Tinto Zinc Corp.
4 Evans, 2010, p.323
5 Woodpulp.
6 Evans, 2010, p.323.
7 C.11.
2
2. USM lacks jurisdiction over the acts of N as they did involve USM nationals
Nationality is universally recognised as a basis for jurisdiction over extra territorial acts where the
perpetrator is the national of the forum state.8 Jurisdiction is generally deemed to be available if the
suspect was a national at the time of the commission of the offence or if he or she was a national at
the time of the prosecution.9 It is clear that N is a national of RNM as RNM seceded from the
Republic of Manconia and became the world's 193rd State on 5th July 2008.10 Pursuant to the 2008
Agreement, after a transitional period of 6 months, all habitual residents of RNM acquired
citizenship of that State.11 Furthermore, dual RoM/RNM citizenship was not permitted.12 Therefore
it is submitted that the nationality principle cannot be used as a basis for jurisdiction either.
Passive personality jurisdiction provides that aliens may be punished for acts abroad harmful to
nationals of the State of forum. A person later gains nationality of a State that wishes to prosecute
offences against him does not grant that State passive personality jurisdiction. The Blues who have
resettled from RNM before the start of the violence13 as well as some of the refugees who arrived in
July-August 200914 have not acquired USM citizenship as of 10 May 2010, nor can they be stated to
have been citizens of USM at the time of the violence. The victims of N’s alleged acts cannot be
said to USM at the relevant time and therefore USM cannot exercise passive personality
jurisdiction.
Furthermore, there is no threat to USM from the actions of N and the number of individuals who
travelled there is minimal in comparison to Orangestan and other areas, thus USM lacks protective
8 Lotus, p.92.
9 Swart, 2002, p.575.
10 C., para.5.
11 Fact clarification 38
12 Fact clarifications 38
13 C., para.6
14 C., para.16
3
jurisdiction over the alleged acts of N.
3. USM cannot exercise UJ over the alleged acts of N:
For want of territorial or nationality jurisdiction, USM must appeal to a customary law rule of UJ to
try N in its courts. UJ is defined as “the competence of a State to prosecute alleged offenders and to
punish them if convicted, irrespective of the place of commission of the crime and regardless of any
link of active or passive nationality, or other grounds of jurisdiction recognized by international
law.”15 It is submitted that great uncertainty exists as to the basis of UJ over the crime of genocide
independently of the alternative hitherto-accepted bases of jurisdiction. The Genocide Convention
does not, of itself, permit the exercise of UJ over genocide. Whilst it is admitted that ICJ opinion
asserts that UJ emanates from Article 1 of the Genocide Convention,16 the travaux preparatoires
and academic opinion does not support this isolated contention.17 In contrast to the Geneva
Conventions of 1949 the Genocide Convention contains no provisions which could found a claim
for UJ, despite its adoption only one year prior to the Geneva Conventions. Separate opinion of the
ICJ asserts, “That there is no established practice in which States exercise UJ, properly so called, is
undeniable”, adding the reminder that that “all national legislation envisages links of some sort to
the forum State; and no case law exists in which pure universal jurisdiction has formed the basis of
jurisdiction.”18 That the Nuremberg trials can be said to have established a customary basis for the
exercise of UJ over genocide prior to the Convention is doubtful.19 Similarly doubtful is the
identical claim in respect of the Eichmann trial: it not only recognised clear limitations on the
claimed norm, but alongside the Nuremberg trials constitute minimal and extraordinary examples
insufficient for establishment of a customary norm. More recent alleged examples of State practice
15 Resolution on UJ.
16 Bosnia and Herzegovina v. Yugoslavia Separate Opinion of Judge Lauterpacht.
17 Inazumi, 2005, pp.149-150.
18 Arrest Warrant, sep. op. Higgins, Kooijmans and Buergenthal, para.45.
19 Inazumi, 2005, p.151.
4
and opinio juris, such as Belgium's attempt to establish UJ for the crime of genocide through
domestic statute, are also dubious: it was amended to exclude UJ as a result of widespread
international condemnation.20 It therefore cannot constitute state practice nor opinio juris for a
customary law rule of UJ. Moreover, it is submitted that any appeal to Pinochet in support of a
general customary law principle of UJ has no basis: as is supported by academic commentators21,
the matter concerned the two States' obligations under treaty and their own domestic law rather than
any customary law principle of UJ. Pinochet can therefore provide no foundation for any claim of
UJ. Further doubts can be cast on State Practice in respect of crimes against humanity, where the
case law on the issue follow the traditional bases of jurisdiction instead.22 Moreover, States such as
France, the US, and the UK fail to provide for UJ in their statutory prohibition on genocide.23
Domestic case law affirms the proposition that UJ, to the extent that it can be said to exist, does not
exist absent fulfilment of another base of jurisdiction24, with which national legislation25 and the
opinion of scholars concurs.26 As submitted above, USM will be unable to found their claim to UJ
on this basis, the other heads of jurisdiction remaining unfulfilled. There is therefore no consistent
conception of UJ in international law. As commentators ask, “In the light of the contradictory
practice, how can we say that universal jurisdiction is a norm?”27 No international law right can be
founded on so uncertain a claim.
20 Projet de loi relative aux violations graves du droit humanitaire.
21 Bassiouni, 2003, p.56.
22 Criminal Code, S.7 (3.71), and Regina v Finta (Canada); Criminal Code art.212, and GB 1999;
Code Pénal Art.212-1, and Barbie, Touvier, and Papon (France).
23 Art.211-1 Code Pénal and Art.689 Code de procedure pénal (France); United States Code,
para.1091(d) (US); International Criminal Court Act 2001, s51 para.2(a) (UK).
24 In Re Javor (France); In Re Munyeshyaka, (France); Public Prosecutor v. Jorgic (Germany).
25 War Crimes Amendment Act 1988, s.11 (Australia); War Crimes Act 1991, c.13, s.2 (UK);
Canadian Criminal Code, R.S.C., ch. C-46, ss.7(3.71)-(3.73) (1985) (Canada).
26 Slaughter, 2004; Orentlicher, 2004 Bassiouni, 2004.
27 Inazumi, 2005, p.150.
5
In the alternative, to the extent that a rule of UJ can be said to exist, USM simply cannot claim UJ
as it fails to fulfil the conditions attached to it for its exercise. It must be recalled that separate
opinion of the ICJ asserts that UJ threatens to bring “total judicial chaos” and may “encourage the
arbitrary, for the benefit of the powerful”.28 The need for conditions to its exercise is therefore clear.
It has been stated authoritatively that “the jurisdiction of States to prosecute crimes committed by
non-nationals in the territory of another State must be governed by clear rules in order to ensure
legal certainty, and the reasonable exercise of that jurisdiction”.29 Pursuant to this, judicial opinion
recognises safeguards against abusive exercise of UJ, which constitute conditions the fulfilment of
which is necessary for the exercise of UJ.
Separate opinion of the ICJ has stated that the prosecuting state “must first offer to the national
State of the prospective accused person the opportunity itself to act upon the charges concerned”.30
The Court also stated that “some special circumstances that do require the exercise of an
international criminal jurisdiction” must obtain, for example, when “persons related to the victims
of the case will have requested the commencement of legal proceedings.”31 Authoritative statements
of the principle of UJ affirm that States must ask the State of which a suspect is a national “whether
it is prepared to prosecute” that suspect. It is precluded from exercising UJ over him unless that
State is “manifestly unwilling or unable to do so”32 and this is affirmed in ICTR opinion.33 More
generally, the Princeton Principles state that the exercise of UJ by a State must be “in accordance
with its rights and obligations under international law”.34
28 Arrest Warrant, Separate Opinion of President Guillame.
29 Resolution on UJ, Preamble.
30 Arrest Warrant, sep. op. Higgins, Kooijmans and Buergenthal, para.59.
31 Arrest Warrant, sep. op. Higgins, Kooijmans and Buergenthal, para.59.
32 Resolution on UJ, 3(c).
33 Katanga.
34 Princeton Principles, 1(5).
6
First, it is submitted that USM's exercise of jurisdiction, as a subversion of ordinary legal
extradition procedures and international criminal justice cooperation, has failed to regulate its
exercise of jurisdiction by clear rules therefore rendering it inimical to legal certainty. In prefacing
the exercise of jurisdiction on the illegal abduction of N, an individual with immunity from
prosecution, USM has exercised jurisdiction unreasonably and not in accordance with its
obligations under international law. USM has also failed to offer RNM the opportunity to itself act
upon the charges of genocide, merely requesting the extradition of N to USM.35 In pursuing its own
prosecution USM has ignored the attempt of RNM to itself so act in agreeing to establish the hybrid
tribunal. No plea for its exercise has been forthcoming from any of the alleged victims in USM, nor
have any other special circumstances been shown.
Authoritative commentators list factors critical to the exercise of UJ in Butare Four36 as “the sense
that the prosecution was apolitical and not tantamount to taking sides in a distant political conflict”,
“the absence of an effective judiciary in the state where the atrocities took place and the presence of
one in Belgium”, and “the lack of opposition from any state, in particular Rwanda, to their
prosecution”.37 None of these conditions obtain in the present case. As a former colonial power,
USM cannot help but act in a manner that is political and will inevitably be seen to be so acting;
moreover, it is a prosecution directed against a member of RNM's government and a greater
aggravating factor in the appearance of a political prosecution could hardly be imagined.
It is accepted that, as of yet, no clear customary international law rule of priority of the territorial
forum over international or transnational fora, under the term 'complementarity', has emerged. It
must be noted, nonetheless, that State practice has recognised the principle in statutory law,38
35 C.23.
36 The Butare Four.
37Ratner, 2003, pg. 892; Cassese, 2003, pg. 593.
38 S.153f(2) of the German Criminal Code of Procedure.
7
alongside affirmative judicial and prosecutorial decisions,39 statements of the law by international
bodies and declarations,40 and academic authority.41 The separate opinion Arrest Warrant cited
above also provide for such a principle.42 It is submitted therefore that the issue is one of accepted
legal principle which must inform the conditions on UJ as described above.
There remains no justification for departure from the above rules and the guiding principle of
territorial priority in pursuing prosecution of N in USM rather than in the Hybrid Tribunal which
stands to be established in RNM. It may be claimed that this is required to end the impunity with
which N has committed his alleged crimes, a goal with which authoritative statements of the law
concurs.43 Firstly, and simply as a matter of logic, it must be proven that the incapacity of the
prosecuting State to exercise jurisdiction over those so accused truly entails impunity. As academic
commentators affirm,44 incapacity to invoke UJ, in this case by USM at this point, does not ipso
facto necessitate impunity. The Hybrid Tribunal for Cambodia took many years to be established
and to hear its first case, after difficult UN negotiations, where difficulties in part stemmed from the
presence of certain Khmer Rouge elements within government and the selection of judges,
problems identical to those of the present case.45 International law would not have countenanced
another State abducting a Cambodian genocide suspect and government Minister during the
negotiations for the establishment of that court. Furthermore, difficulties of establishment and non-
intervention by other States did not entail impunity, as suspects now stand trial. USM has failed to
allow the same considerations to weigh in respect of RNM. It is accepted that no judicial guidance
39 Eichmann; Dusko Cvjetkovic; Jorgic; 'The Butare Four'; Guatemalan genocide.
40 For example, Darfur Report, 2005, § 614; Princeton Principles, Principle 8; UJ Resolution, 3(d).
41Cassese, 2003, 589-95; also Kress, 2006, pp.561-585; Stigen, 2010, p.142; Oppenheim, 1992,
p.458.
42 Arrest Warrant, para.59.
43 Resolution on UJ, Preamble; Princeton Principles.
44 Paulussen, 2010, p.158;
45 Orentlicher, 2005, pp.219-21; Horsington, 2004, p.462; Zappala, 2009, p.273.
8
is available on the meaning of “unwilling or unable” as stated in Katanga, it is submitted that, given
the above, no claim that RNM is thus far unwilling or unable to prosecute N can stand.
It may be claimed, in closing, that the purpose of UJ for the prosecution of genocide may override
conditions and safeguards against abuse. It is submitted that any such claim cannot be permitted to
draw a cloak of legitimacy over an exercise of criminal jurisdiction that has failed to meet the clear
and accessible legal conditions placed upon it in international law, flouts USM's obligations under
the law of immunities and extra-territorial abduction, and has failed to engage cooperatively with
RNM and its pursuit of local justice, instead seeking destablising, disruptive, and unreasonable
unilateral self-help.
B. USM has violated the immunity from criminal jurisdiction of N, a serving Minister in the
RNM government.
As stated by the ICJ, “The law of privileges and immunities...retains its importance since
immunities are granted to high State officials to guarantee the proper functioning of the network of
mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious
international system.”46The view of the international communities is based on a balancing of
interests between the prevention of impunity for perpetrators of grave crimes against its members,
and the interest of States to allow them to act freely on the inter- State level without unwarranted
interference. 47 RNM has not waived immunity. This is reflected in the fundamental principles of
consent, state sovereignty and waiver of immunity in respect to the UN- hybrid tribunal. The
removal of immunity is based on consent which is discovered by viewing the tribunal's founding
document. Since there is no statute48, and there does not appear to be any other way to interpret the
intention of the parties. Even if immunity were to be waived through UN hybrid tribunal agreement,
46 Iranian Hostages, para 91.
47 Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans & Buergenthal at 75
48 C.19, 24
9
this would have no impact on a foreign jurisdiction as RNM was agreeing to a different legal
procedure. However, it is submitted that the prima facie position is that there is no waiver of
immunity and there is not anything to suggest otherwise.
1. Personal Immunity
N is entitled to personal immunity, that is to say that his immunity from criminal process is absolute
or complete.49 The principle of immunity ratione personae has been applied by national courts50 and
upheld in state practice.51No criminal prosecution should be brought against him in a foreign court
as long as he remains in office. It covers all of the person's acts, including any acts before they took
office, whether they were private or official.52 Personal immunities are granted in order to ensure
the effective performance of the individuals functions on behalf of their states.53 Immunity ratione
personae covers cases involving allegations of international crimes and is taken to apply to all
officials who are entitled to it. 54
N's performance of his functions came to a halt due to the actions of USM he can no longer fulfil
his duties as Media Minister. N has represented RNM on an international plane at the Regional
Culture Minister's meeting on more than one occasion.55 The main basis for establishing immunity
ratione personae in relation to foreign ministers in Arrest Warrant case was because they are
responsible for the international relations of the state and "in the performance of these functions, he
or she is frequently required to travel internationally, and thus must be in a position freely to do so
49 Arrest Warrant at 51
50 Castro p.272 cited by Cassese, 2008, at 309-310, ; Re Sharon and Yaron; Pinochet (No.3) at 126-
127, 149, 179; Jiang Zemin; Tachiona; Auto del Juzgado at 151-157. Mofaz; Ghaddafi
51 Murphy, 2003; at 974-977; Jiang Zemin; Beeston, 2003 at 17; Osborn, 2001 at 13; Hartmann,
2005 at 745; McGreal, 2004 at 19.
52 Arrest Warrant at 55
53 Arrest Warrant at 53- 54
54 Akande, 2011 p.819; Cassese, 2008 p.309-310; Gaeta, 2002,p. 975; Zappalà, 2001; Fox, 2002
55 C.C.6
10
whenever the need should arise."56.
There are authorities which argue that the immunity accorded to the foreign minister in the Arrest
Warrant case does not extend to other state officials who are below the status of a foreign minister.57
In the case of Mofaz58, Judge Prat considered the Arrest Warrant case and stated that he did not
believe that a Culture Media and Sports Minister would automatically acquire a label of State
immunity.59 However he took the words “such as” in paragraph 51 of the Arrest Warrant case to
indicate that the categories listed were not exclusive and further stated that the function of various
Ministers will vary enormously depending upon their sphere of responsibility.60
It is submitted that in this case, N does fall into the category of persons entitled to immunity, as N's
international commitments which require him to travel require the same kind of immunity.
Recently, the meetings have been concluded with the adoption of non-binding resolutions on
regional cooperation in this area. 61 N's performance of his functions impacts on RNM's relations
with other states and in this manner can be said to be identical to that of a Foreign Minister or
diplomat.62 RNM is a relatively new state which makes its relations with other states very crucial.63
As it depends heavily on the representations of its State officials in order to forge and consolidate
diplomatic and international relations.
In the alternative, it is submitted that he is entitled to immunity ratione materiae or functional
immunity. This principle derives from the concept of sovereignty. Sovereignty suggests that one
56 Arrest Warrant at 53
57 Pinochet (No.3), per Lord Brown-Wilkinson; Gaeta; Broomhall at 130-131; Kolodkin, para 111,
Vienna Convention on the Law of Treaties, Art 7(2)
58 Mofaz
59 Mofaz at para 13
60 Mofaz at para 11
61 C.C. 57
62Arrest Warrant at 53
63 C. 5
11
state cannot judge another state for acts performed in sovereign capacity; 64 The immunities are
conferred to prevent foreign states from interfering in the affairs of other states and from exercising
judicial jurisdiction over the nationals of another state in circumstances where it has not
consented.65
The effect of the immunity is that the state can be held responsible for his acts, and the individual is
not held responsible to the courts of another state for his acts. This has been held to be a well-
established rule of customary international law.66 The definition of official act was held to be
similar to an “act committed for official purposes.”67 It is submitted that N's actions can be
described as official acts pursuant to the Articles on State Responsibility.
N's actions are attributable to the state pursuant to Article 10 of the Articles on State
Responsibility68 in relation to the conduct of an insurrectional movement. Article 10 constitutes
customary law.69 The attribution of conduct of a successful insurrectional movement of the State
under international law lies in the continuity between the movement and the eventual government.70
The relevant test is the existence of a “real and substantial continuity” between the former
insurrectional movement, which N was a part of, and the new government it has succeeded in
forming.71
N's conduct constitutes conduct of an insurrectional movement which becomes the new
64Clapham at 313
65 Akande, International Law at 417, UN Immunities Convention Article 2(1)(b)(iv), 5
66 McLeod at 1139; as well as Jennings, 1938, at 92-99; Rainbow Warrior. See also the Governor
Collot case, in Moore at 23-24; Eichmann; Blaskic (subpoena) at paras 38 and 41, Arrest Warrant
Case at 58.
67Lord Hope in Pinochet (No.3) at 881
68 ARS
69 Nicaragua
70 ARS commentaries at 4
71 ARS commentaries at 7
12
Government of a State and therefore his actions shall be considered to be acts of RNM under
international law. When former leaders of the Keanos become increasingly influential.72 and took to
the airwaves to incite the Red population to take revenge;73 Radio stations were an effective means
of directing attacks, and N was inciting listeners as part of the insurrectional movement at that
time.74 His association with the movement is evidenced by his appointment as the RNM
government's Minster for Culture, Media and Sport. Thus, it is clear that there a real and substantial
connection exists.
It has been argued that since immunity ratione materiae can be pleaded to protect officials from
scrutiny in relation to official acts, that acts amounting to international crimes may not be
considered official acts.75 However this argument is unsubstantiated since immunity is raised at a
stage during the proceedings where it will not yet have been established that the state has acted
illegally.76 N's actions were done for reasons associated with the policies of the Keanos, this is
indicated by the fact that other leading Keanos were undertaking the same action. Therfore, “to
deny the official character of such offences is to fly in the face of reality.” 77 Such acts are
characterized as acts of the state for the purpose of imputing state responsibility,78 and it would be
artificial to impose a different test in the context of individual responsibility.
2. Convention on Special Missions
In the Mutual Assistance in Criminal Matters case, Djibouti relied on the Special Missions
72 C.10
73 C. 11
74 C. 12
75 Pinochet No. 3
76 Akande, 2011 830
77 Barker, 1999, at 943; Denza , 1999, at 952; Gallagher, 2009, at 1110-1111.
78 ARS Arts 4 and 7
13
Convention in its written pleadings although neither it nor France was a party to that Convention.79
It is important to note that it has been accepted that this type of special mission immunity applies
even in cases concerning international crimes.80 The receiving state must not only be aware that the
foreign official is on its territory, it must also consent to that presence and to the performance of the
specified task.81 The element of consent is present in this situation as the Regional Meeting did
involve Orangestan being aware of and consenting to N's presence on their territory as it invited N,
in his ministerial capacity, to attend the annual Regional Culture Minister's meeting.82 Accordingly
N is inviolable from criminal prosecution and other proceedings.83
3. Genocide, jus cogens, and crimes against humanity
Genocide is a form of crime against humanity as established by state practice and opinio juris.84 N's
immunity does not interfere with impunity in relation to acts involving genocide. The argument
that war crimes or crimes against humanity prevented immunity was rejected by the ICJ:
“The Court has carefully examined State practice, including national legislation and those few
decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It
has been unable to deduce from this practice that there exists under customary international law any
form of exception to the rule according immunity from criminal jurisdiction and inviolability to
incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes
or crimes against humanity.”85
79 Djibouti at paras 131-140
80 ReBo Xilai;. See also Arrest Warrant, Counter-Memorial at paras 1.11-1.12, 3.2.32
81 Convention on Special Missions, Article 1
82 C.26
83 Convention on Special Missions, Article 29
84 Genocide Convention Art. II and IV; ICTY Statute Art. 4 and 7; ICTR Statute Art. 2 and 6;
Rome Statute Articles 6, 25, 28 and 30; Akayesu; Kayishema, Krstic (ICTY Trial Chamber
judgment 2/8/2001) , Krstic Appeals; Kristic Trial; Bosnia And Herzegovina v Serbia and
Montenegro, paras.190-201; Omar Al Bashir
85 Arrest Warrant at 58
14
The Arrest Warrant case confirms the opinion of the judges in the Pinochet case that General
Pinochet would have enjoyed immunity, on a different basis, if he had still been Head of State. 86
It has also been argued that owing to the superior position of jus cogens norms in the hierarchy of
international law, they must prevail over the rules of international law providing immunity.87
Although it has been stated that prohibition of genocide is a norm of international law that is also a
peremptory norm of international law or jus cogens,88 it is by no means established that all rules
prohibiting international crimes are prohibitions that rise to the level of jus cogens.89
The rules of state immunity do not come into conflict with the jus cogens norms as the main
purpose of immunities is to prevent the trial of such crimes in the domestic courts of other states. In
order to establish a conflict, it would have to be shown that there is an obligation on third states to
prosecute the crime in their domestic courts and that this obligation itself is a rule of jus cogens.90 It
is clear that no such obligation was shown in N's case.
If the obligation to prosecute were jus cogens, it would prevail over other norms of international
law and there would be an obligation to prosecute even in situations where such a prosecution
would violate the rights of the individual concerned or that of other states.91 This is clearly not the
current situation. Furthermore, even where there is an obligation on third states to prosecute that
obligation does not rise to the level of jus cogens. Therefore, there is no conflict between rules of
immunity and the jus cogens nature of the prohibition.
86 Jones v Saudi Arabia at 49
87 Bianchi, 1999 at 265; Reimann, 1995 at 421-423; Byers, 1996 at 539-540; Orakhelashvili, 2002
2 at 712-713; Orakhelashvili, 2002 1; Karagiannakis, 1998; Orakhelashvili, 2007 at 964.
88 Judge ad hoc Elihu Lauterpacht, in Bosnia and Herzegovina v. Yugoslavia at 440.
89 Akande,2011, at 833
90 Judge Al-Khasawneh in his dissenting opinion in the Arrest Warrant case, at 7.
91 Akande, 2011, at 836
15
Thirdly, the argument that there is no immunity in cases alleging violations of jus cogens norms has
been both explicitly and implicitly rejected by international tribunals.92 In Al-Adsani v. United
Kingdom, held that the grant of state immunity in a case involving an allegation of torture by a
foreign state was consistent with international law and therefore not a denial of the right of access to
a court. This view has since been followed by broader majorities of the ECtHR in other cases. These
cases dealt only with the immunity of states from civil actions. However, if the ECtHR had
accepted the normative hierarchy theory and was of the view that the jus cogens prohibition
prevailed over immunity in criminal cases, it is difficult to see how such a prohibition would not
also override immunity in civil cases as well.93
State immunity can be viewed as a procedural rule going to the jurisdiction of the national court, it
does not go to the substantive law and therefore does not contradict the prohibition contained in a
jus cogens norm but it “merely diverts any breach of it to a different method of settlement.” 94 A
different method has already been arranged through the UN- hybrid tribunal.
Due to RNM's acceptance and evident decision to act upon trying individuals involved in genocide
in the UN-hybrid tribunal and due to the absence of consent in relation to any other method, it is
clear that the state's interests would have been balanced by trying N without interfering with the
performance of his functions and impacting RNM.
C. The Courts of USM lack jurisdiction over N because he was illegally abducted from a foreign
State.
1. Illegality as a breach of RNM's and Orangestan's sovereignty
Any exercise of enforcement jurisdiction within the territory of another state, absent express
92 Bouzari at 73, Al-Adsani
93 Akande, 2011 at 838
94 Fox, 2002, at 525
16
consent, or interference with its internal and external affairs is a breach of its sovereignty.95 The
United Nations Security Council has forcefully condemned acts of covert abduction of individuals
within a sovereign state's territory as a violation of its sovereignty.96, Scholars affirm the
proposition.97
In abducting N, USM interfered with the external affairs of RNM and therefore committed a breach
of the sovereignty of RNM. In so doing, it also exercised its enforcement jurisdiction in Orangestan
and therefore committed of sovereignty of Orangestan.98 Consent can vitiate a breach of sovereignty,
but it must be express and given before or contemporaneous to the sovereignty-breaching act,99 and
may be by local official.100 Orangestan refused to cooperate in the arrest and extradition to USM of
N.101 Consent was not given. RNM has protested and so has not consented.102
2. Illegality of the abduction by breach of customary international human rights law:
The right against arbitrary arrest and detention and deprivation of liberty and security of the person
forms a rule of customary international law. This customary law right forms a network of
“international due process of law” principles.103 This is supported by State practice and opinio
95 Lotus; Corfu Channel; Nicaragua; Arrest Warrant; UNC; GA Res. 2131 (1965); GA Res. 2625
(1970)
96 United Nations Security Council Resolution 138 of 23 June 1960.
97 Oppenheim; Costi, A., 2003, p.61; Michell, P., 1996, p.411.
98 C.27.
99 ARS.
100Savarkar
101C.26.
102C.28.
103Costi, 2003, p78; Bassiouni, 1987, p.231; Mann, 1990, pp.347-348; Princeton Principles, 1(4).
17
juris,104 alongside the opinions of eminent jurists on the subject105 and ICJ opinion.106 Correlative
international wrongs, such as the right to be informed of the charges against the individual107 and the
right to a prompt judicial hearing,108 have been recognised, strengthening the claim that procedural
safeguards form customary international law as a safeguard for the rule of law.109 Domestic case
law110 and the opinion of eminent jurists111 affirm the proposition that abduction is a violation of the
rule of law.
Extra-territorial abduction has been consistently judicially recognised to violate rights against
arbitrary arrest and detention by multiple human rights conventions.112 Widespread ratification to
these conventions demonstrates State practice and opinio juris as to the customary law right,
although the derogable status of the rights contained in those documents has no bearing on the
customary international law status of the right against arbitrary arrest and detention more broadly.113
USM has ratified the ICCPR,114 and is therefore bound by it under international law. Extra-territorial
abduction has been held to constitute a violation of Article 9.115
104Report of the Working Group on Arbitrary Detention; Third Restatement; RDPPED.
105Paulussen, 2010, p.75; OHCHR, General Comment No.24, para.8; Michell, P., 1996, p.411;
Loan, 2005, pp.253-300; Costi, A., 2003.
106 Iranian Hostages; United Nations Security Council Resolution 638 1989.
107 Chattin.
108 Parrish.
109Costi, 2003.
110 Hartley (NZ); Mackeson (UK); Beahan (Zim.); Bennett (UK); Ebrahim (SA); Toscanino (US).
111Michell, 1996; Costi, 2003, p.96; Paulussen, 2010.
112 ICCPR, Art.9 : Lilian Celiberti; Sergio Ruben; Maria del Carmen; Canon Garcia. ECHR,
Art.5: Stocke; Ocalan; ACHR, Art.7: Rodriguez; ACHPR, Art.6.
113 Office of the High Commissioner of Human Rights, General Comment No. 24, para. 9.
114C.C. 7.
115See ICCPR cases, footnote 18.
18
Both N's initial abduction and his two-day detention without judicial supervision116 constitute a
breach of the customary law right against arbitrary arrest and detention and Article 9 ICCPR. N's
arrest was sought in a manner contrary to what USM itself recognised as the relevant procedure
established by law, namely, extradition.117 It is therefore arbitrary and not a deprivation of liberty in
accordance with law. Consent to the abduction by the State of refuge can vitiate the breach of
Article 5 ECHR.118 As submitted above, Orangestan did not consent. Regardless, consent is
irrelevant to the breach of Article 9 ICCPR119 and, as scholars affirm, the customary international
law right “to be free from abduction exists independently of whether there is also a breach of the
host state's sovereignty”.120 Therefore, Orangestan's conduct is irrelevant in this regard.
3. The effect of the abduction's illegality on the exercise of jurisdiction by USM's courts:
It may be asserted that no international law rule exists such that the illegality of a defendant's
abduction precludes the abducting State's courts from exercising jurisdiction over him or her; that,
in the Latin, male captus equals bene detentus.121 This does not represent international law. It is a
rule of customary international law that illegal abduction precludes the exercise of jurisdiction over
the abductee in a domestic criminal court, that male captus necessitates male detentus. State
practice and opinio juris makes this clear.122 It must be recalled that there is no requirement that all
State practice be consistent with a rule for it to be customary law.123 Regardless, supposed evidence
of contrary State practice is misconceived or has been superseded by contemporary practice. It is
116C.27.
117C.23.
118Illich Sanchez Ramirez; Ocalan.
119Lilian Celiberti; Sergio Ruben; Canon Garcia.
120Loan, 2005, p.282; also, Michell, 1996; Paulussen, 2010.
121Ker; Frisbie; Alvarez-Machain.
122In re Jolis (France); Fiscal (Spain); Levinge (New Zeal.); Hartley (NZ); Mackeson (U.K.);
Ebrahim (SA); Beahan (Zim.); Bennett (U.K.); also, Nikolic (ICTY); Harvard Research, Art.16.
123Nicaragua, 95-99.
19
submitted that Eichmann, admittedly a case that some take to preclude MCMD,124 no longer
represents the state of international law: human rights norms now take greater primacy in
international law.125 Moreover, Eichmann case does not clearly deny MCMD: the Israeli court
specifically denied the possibility of Eichmann's pleading the illegality of his abduction as a
violation of Argentina's sovereignty in a national forum rather than on the international level. As a
matter of logic, this in no way bears upon the question of whether the illegality of an abduction
strips a domestic court of jurisdiction over the abductee as a matter of international law. Further
contrary cases can be seen to be determined in relation to cases in which state sovereignty was not
violated or where the substantive international law issues were ignored by the court126 and have
received widespread international and domestic criticism.127
MCBD may appear to be affirmed in Nikolic 1 and 2.128 However, it concerned the employment of
non-state actors in the abduction of the defendant and was not a claim brought against an abducting
State. In Nikolic 1 it was expressly stated that these facts significantly altered the legal terrain in the
case.129 This disclaims the relevance of Nikolic to the present case. Moreover, the legal framework
was such that the vertical authority of the UNSC generated an obligation on all relevant States to
surrender suspects to the ICTY. This rendered any duty of the Tribunal to return an illegally
abducted individual to the State of refuge moot, consequent to a finding of illegal abduction and
corresponding lack of jurisdiction, as a State so obligated would be required to immediately
thereafter return the individual to the Tribunal. As above, neither RNM nor Orangestan were
obligated to extradite N to USM in the absence of prosecutions in either country. Therefore, the
124 Eichmann.
125Michell, 1996; Loan, 2005, pp.253-300.
126 Ker (US); Frisbie (US); Alvarez-Machain (US); Yunis (US); Re Argoud (France).
127 See Newspapers A, B, C, D, E, F, and G
128 Nikolic 1 and 2.
129 Nikolic 1, para.113.
20
same reasoning cannot be applied. Moreover, Nikolic 1 affirms MCMD as “the ruling principle for
cases where representatives of a State have been involved in a violation of international law and
which amounts to a violation of the rule of law”.130 The ICTY, therefore, did not deny MCMD,
simply finding, on the facts and applicable law, that it could not be invoked in that case. The
abduction of N was in violation of international law and that this breach constitutes a violation of
the rule of law. It may also be argued that Nikolic 1 and 2 only permit MCMD in cases of substantial
mistreatment of the abductee. However, the above considerations falsify this claim. Nikolic 1
expressly stated that the legal framework under which the case was heard, as detailed above,
determined that the above ICCPR case law could have only limited application.131 The fact that the
present case is between two States, one of which has abducted a national of another, in no way
denies, by Nikolic 1, that arbitrary arrest and detention may be sufficient to engage MCMD.
The claim may be made that the assertion of UJ permits the employment of extra-territorial
enforcement jurisdiction under international law. For this, it must be admitted, there is some (albeit
very limited and minimal) international support.132 Nonetheless, even among those who assert the
possibility of such an exception, it is claimed that the exception can only be engaged upon
exhausting all other possible avenues of cooperation133 which, as stated above, USM have not
pursued. Moreover, eminent jurists assert that Eichmann, which may be thought the constitute such
an exception par excellence, cannot be taken to have pursued anything of the sort. Rather,
“[h]owever atrocious Eichmann's offences, Israel could not justify its violation of Argentina's
sovereignty by the universality principle or any other jurisdictional principle of international
law”.134 It appears clear, therefore, that, even in respect of suspects charged with the crime of
130 Nikolic 1, para.87.
131 Nikolic 1, para.113.
132 Third Restatement; Barbie (France); McNeal and Field, 2006-2007, pp.491-522.
133Michell, 2005, fn.205.
134Randall, 1987-1988, pp.785-841, p.813.
21
genocide, the claim of UJ over such crimes cannot defeat the illegality of an abduction in pursuance
of the exercise of the enforcement jurisdiction of the State claiming UJ.
Commentators have condemned the “use of unilateral self-help and extraterritorial force at a time
when the perceived post-Cold War norm for international enforcement, whether political or
criminal, focuses on joint and collaborative action through established procedures”, which N's
abduction surely constitutes.135 In contrast to the cooperative, UN-legitimated regime in which the
abduction and trial of Dragan Nikolic took place, N's abduction represents a deviation from
established norms and the pursuit of justice in RNM. Neither UNSC Resolution provides a legal
basis for the abduction of N, and on the contrary it is submitted that his abduction by USM
represents a subversion of UN efforts to do justice in RNM through the Hybrid Tribunal.
It may be claimed that MCMD must yield an exception for those convicted of serious crimes such
as genocide. As stated above, denial of jurisdiction in this case need not entail impunity. Moreover,
the rule of law demands the refusal by States to engage in enforcement measures illegal under
international law. MCMD enshrines the established maxim, ex injuria non oritur actio,136 refusing
States the benefit of their wrongful acts. Judicial decisions must not provide incentives for those
states with sufficient power and resources to exercise self-help to the detriment of the rule of law,
notwithstanding “the immense degree of public revulsion” which may attach to the crimes
charged.137 Other instances of extra-territorial abduction such as hostage-taking, enforced
disappearances, hijacking, and 'extraordinary rendition' are measures the international community
widely condemns as illegal and gross violations of human rights. As has been stated judicially,138
MCMD is a critical step in upholding the rule of law between and within nations; it demands that
135Bush, 1992-1993, p.943; also Liput, 1985, pp.38-39.
136Costi, 2003, p.22; Morgenstern, 1952, p.279; Garcia-Mora, 1957, p.446; de Schutter 1965,
p.123; Mann, 1989, p.347; Currie, 2007, p.356-7.
137 Mullen (UK).
138 Bennett, judgement of Lord Lowry.
22
“abducted criminals should be treated on the same footing, whether they are drug traffickers,
fraudsters, terrorists or war criminals”.139
For States to seek to try foreign nationals whose conduct abroad they have criminalised by domestic
statute, and whom they have abducted in the enforcement of that statute, is for national sovereignty
to extend past national boundaries and onto the international plane. UJ permits the legal extension
of sovereignty onto the international plane, but the denial of MCMD constitutes a carte blanche for
the unlimited exercise of enforcement jurisdiction by the powerful, anywhere in the world and in
respect of whomever they might determine falls under their jurisdiction. This, it is submitted, will
truly bring the “chaos” of which judicial dicta have warned,140 so inimical to the rule of law and the
protection of human rights. If, as has been submitted, the exercise of UJ demands substantial
safeguards against its misuse, it is surely evident that a tool for the extension of State power even
greater in strength, especially when employed by the strong against the weak, should face
safeguards against its abuse. The international customary law norm of MCMD is such a safeguard.
4. USM's obligations consequent to the illegality of the abduction:
All states bear the obligation to “to refrain from all illegal acts, whether by the positive actions of its
authorities, or by omission or by a refusal to lend assistance or to do justice”.141 An internationally
wrongful act is the product of three constitutive elements, namely, attribution, breach, and absence
of circumstances precluding wrongfulness,142 as stated by the ARS and its commentaries, the
relevant part of which (Part 1) is customary law.143 It is a general principle of international law that a
state's commission of an internationally wrongful act generates an obligation on that state to make
reparations, which entails restitution, that is, restoration of the status quo ex ante, if materially
139Costi, 2003, p.98.
140Arrest Warrant Separate Opinion of President Guillame.
141 Polish Nationality.
142ILC, ARS, Article 2 and Chapter V of Part 1; Iranian Hostages.
143 Nicaragua.
23
possible and not disproportionate.144 Injury done to an individual constitutes an injury done to the
State of which he or she is a national, and that State may claim remedies as such.145 It is accepted
that failure to protest the illegality constitutes waiver of the requirement of restitution.
Compensation for costs incurred in effecting repair is available,146 and satisfaction.147
Restitution entails the return of N to RNM. It is a clear rule of customary international law that
protest by the injured State and the request for return entails that the abductee must be repatriated to
the injured State, shown by State practice and opinio juris.148 Eichmann represents an significant
minority in suggesting the contrary. This is the appropriate remedy for the breach of RNM's
sovereignty. USM has ratified the ICCPR and is therefore bound by it under international law149 The
customary law right against arbitrary arrest and detention binds USM regardless. As affirmed by
scholars,150 Article 9 ICCPR demands that “any person, whether he is charged with fraud or
genocide, must be released if the judge finds that that person's (arrest and) detention is unlawful”,151
and which may require an apology by the violating and State and permission of the abductee to
leave the country.152 This is the required remedy for both the customary international law right and
Art.9 ICCPR. The Court has the power to impose binding legal obligations on States,153 and can
144 ARS, Articles 31, 34, and 35; Rodriguez; Chorzow Factory, p.47; Spanish Zones; Texaco.
145 Mavrommatis.
146 ARS, Art.36, and commentary para.34; Gabčikov-Nagymaros, para.152.
147 ARS, Art.37
148 Walters; Cochrane; Anderson; Kohosed; Bratton; Derrick Hills; Marker; Lafond; Martin;
Wilson; Blair; Grogan;. Vincenti; Tyler; Trent; Blatt and Converse; Gonzales; Nogales; Martinez;
Lopez; Alvarez-Machain; Two Texas Fugitives; See also Third Restatement, cmt. C; ARS, Part II,
Comm'n 3 and 9, and Article 6; Harvard Research.
149C.C. 7.
150Rodley, 1999, p.338; Swart, 2001, pp.197-207.
151Paulussen, 2010, p.161; see also Morgenstern, 1952, p.279.
152 Celiberti de Casariego, para.46; also Lopez.
153Lagrand.
24
therefore bind USM to provide such a remedy.
Orangestan has not objected nor requested N's return,154 and is not party to the dispute, and therefore
RNM cannot claim a remedy in respect of the breach of Orangestan's sovereignty.
It may be argued that Nikolic 1 supports a claim that USM can have no obligation to return N. In
that case, the Court affirmed the maxim, dolo facit qui petit quod statim redditurus est, that a person
acts with deceit who seeks what he will have to return immediately.155 It may be argued therefore
that RNM has an obligation to extradite or prosecute N and in having failed to discharge it cannot
request N's return as RNM would be required extradite him to USM immediately thereafter.
However, no such general obligation can be said to exist in customary international law. As
commentators affirm,156 State practice is too conflicting on this point and is far from evidencing any
clear opinio juris. In the alternative, to the extent that any such rule can be said to exist, it exists
only in relation to specific crimes as governed by treaty, such as they might incorporate the claimed
rule.157 No such obligation can be derived from the Genocide Convention itself.158 It may be argued
in the alternative that UJ is in itself an obligatory rule and this obligation would be sufficient to
engage the claim. There is only limited support for this proposition159 and State practice does not
support a claim for its customary law status in respect of genocide, as scholars affirm.160 Blaskic
may provide support for the contrary view,161 but it is contradicted by Furundzija which affirms “the
154C.28.
155Nikolic 1, para.104.
156Bassiouni and Wise, 1995, pp.43-69.
157Benavides, 2001, pp.32-36.
158Schabas, 2009, p.475.
159Brussels Principles; DCCAPSM, Articles 8, 9, 17, 18, and 20.
160Inazumi, 2005, p.142; Thalmann, 2009, pp.244-247.
161Blaskic, 1997, para.29.
25
right to prosecute”162 only. The latter is supported by ICJ opinion.163 Therefore, it is submitted that
UJ is a permissive rule only. In the alternative, as above, RNM has not breached any such obligation
to the extent that one may exist in international law. Whilst it has failed to extradite,164 the
considerations above165 falsify the claim that RNM has thus far failed in its duty to prosecute N.
Moreover, an obligatory rule to exercise UJ does not of itself entail an obligation to extradite in
addition to an obligation exercise UJ through prosecution. Regardless, the maxim, in Nikolic 1, was
take to apply to remedies for State sovereignty violations and not human rights violations.166
Therefore, were the maxim applicable and it supported a denial of the return of N for violation of
RNM or Orangestan's sovereignty, it would have no bearing on the remedy for violations of human
rights law. Therefore, for these reasons, no such claim can be made.
Submissions
That the Court finds USM's courts to lack jurisdiction over the alleged acts of N and consequently
must annul all criminal proceedings against him and provide assurances that his prosecution will not
be sought again.
That the Court finds USM to have violated N's immunity and consequently must annul all criminal
proceedings against him and provide assurances that his prosecution will not be sought again.
That the Court finds USM to have illegally abducted N from Orangestan and consequently must
return N there, or, in the alternative, must permit N to leave USM himself, providing compensation
to RNM for any expenses incurred and assurances that N will not face abduction in future.
162Furundzija, 1998, para.156 (italics inserted).
163Bosnia and Herzegovina v. Serbia and Montenegro, 2007, para.442.
164C.23.
165Discussion of universal jurisdiction in A.3.
166Nikolic 1, 97-105.