Page 1

Telders International Mooting Competition 2012

Memorial written on behalf of the Republic of North Manconia (Applicants)

IN The case of North Manconia (The Republic of North Manconia v United States of Merseystan)

Registration Number: 15 – I


i

(A) Table of Contents.............................................................................................i (B) List of Abbreviations .....................................................................................................iii (C) List of Sources ...............................................................................................................vi (D) Statement of Relevant Facts ......................................................................................xviii (E) Issues............................................................................................................................xxi (F) Summary of Arguments .............................................................................................xxiii (G) Jurisdiction of the Court ............................................................................................xxiv (H) Arguments.......................................................................................................................1 I. USM lacks jurisdiction over the alleged acts of Mr. Neville, which were committed outside USM territory and did not involve USM nationals.....................................................................1 A. Unlimited universal criminal jurisdiction does not exist. ......................................................1 B. Even if one were to accept the concept of unlimited universal jurisdiction in theory, then RNM submits that it would not apply to cases concerning genocide. ........................................2 i. State practice indicates that universal jurisdiction does not apply to cases involving genocide. .....................................................................................................................................3 ii. Mere assertion that universal jurisdiction applies to genocide does not make it customary international law. .........................................................................................................................9 II) Mr. Neville is protected from the criminal jurisdiction of USM as a serving minister of the RNM government. ....................................................................................................................10 A. Mr. Neville, as the Minister for Culture, Media and Sport, is included in the group of ministers given immunity Ratione Personae and Ratione Materiae. ........................................10 i) Immunity Ratione Personae extends to State officials and Ministers such as the Minister for Culture, Media and Sport; it is not limited to Heads of States and Foreign Ministers. ............11 ii) Ratione Materiae applies to acts carried out in an official capacity, but it is also submitted that it applies to State officials abroad on ‘special missions’. ..................................................12 B. Mr. Neville is given immunity under international treaty law which protects him from Criminal Jurisdiction.................................................................................................................13 III. The Courts of USM lack jurisdiction over Mr. Neville because he was illegally abducted from a foreign State...................................................................................................................18


ii A. States practice does not make regular and consistent use of the ‘male captus, male detentus’ rule, therefore this rule should not be applied as established customary international law. ............................................................................................................................................18 i. National and international case law indicates that where an individual has been illegally brought into a state’s jurisdiction, its domestic courts must stay proceedings by refusing to continue with prosecutions........................................................................................................18 ii. Even in cases where domestic courts have chosen to allow the proceeding to continue they have laid down persuasive criteria which indicates illegal abduction will negate jurisdiction. ...................................................................................................................................................20 B. When a state has unlawfully interfered in the bringing of the person to its territory for criminal proceedings, its jurisdiction becomes null and void. ..................................................22 C. USM has violated international law by violating the territorial sovereignty of RNM. ........24 (I) Submissions ...................................................................................................................25


iii

(B) List of Abbreviations AJIL

American Journal of International Law

Art

Article

BJIL

Berkley Journal of International law

Brook. J. Int’L

Brooklyn Journal of International Law

Cambridge L.J.

Cambridge Law Journal

Ch.

Chapter

DOC.

Document

E.g.

Example

Et. Al.

And all

ECHR

European Conventions on Human Rights and fundamental freedoms

ECtHR

European Court of Human Rights

EJIL

European Journal of International Law

Ex. P.

Ex Parte

Fn.

Footnote

Ga.

General Assembly

Harv. Int’L

Harvard Journal of International law

Ibid.

Same as the immediately preceding book, chapter or passage


iv ICC

International Criminal Court

ICJ

International Court of Justice

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the former Yugoslavia

ILC

International Law commission

Int’l

International

L.J.

Law Journal

No.

Number

OAS

Organization of the American States

P./PP.

Page/Pages

Para./Paras.

Paragraph/Paragraphs

PCIJ

Permanent Court of International Justice

Perm. Ct. Arb.

Permanent Court of Arbitration

Rep.

Report

Res.

Resolution

RNM

Republic of North Manconia

RoM

Republic of Manconia

Sc

Security Council


v Sc.Res.

Security Council Resolutions

Supra

above

U.K.

United Kingdom

USM

United States of Mersystan

U.S.A

United States of America

UN

United Nations

UNHCR

United Nations High Commissioner for Refugees

V.

Versus

Va. J. Int’l

Virginia Journal of International Law

Vol.

Volume

Wisconsin J Int’l

Wisconsin Journal of International Law

Wis Int’l L.J

University of Wisconsin Law Journal


vi

(C) List of Sources TREATIES International treaties: Rome Statute of the International Criminal Court, 1998. Hereinafter cited as Rome Statute Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001. Hereinafter cited as Articles on the Responsibility of States Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Hereinafter cited as Genocide Convention The Statute of the International Court of Justice, 1945. Hereinafter cited as ICJ Statute Convention on Special Missions, 1969. Hereinafter cited as Convention on Special Missions Universal Declaration on Human Rights. Hereinafter cited as Declaration on Human Rights The Vienna convention on Diplomatic Relations, 1961. Hereinafter cited as The Vienna Convention on Diplomatic Relations European Legislation: The Convention for the Protection of Human Rights and Fundamental Freedoms, 1953. Hereinafter cited as ECHR DOMESTIC LEGISLATION


vii United States of America: Genocide convention Implementation Act, 1994. Hereinafter cited as Genocide Convention Implementation Act Charter of the Organization of the America States, 1948. Hereinafter cited as Charter of the OAS United Kingdom: Criminal Appeals Act, 1968. Hereinafter cited as U.K.’s Criminal Appeals Act Extradition Act, 1989. Hereinafter cited as U.K.’s Extradition Act Human Rights Act, 1998. Hereinafter cited as U.K’s Human Rights Act Belgium: Act concerning the Punishment of Grave Violations of International Humanitarian Law, 1999, English translation: Moniteur, B., 38 I.L.M. 918,, 921 – 24 (1999). Hereinafter cited as Punishment and Grave Violations of International Humanitarian Law Spain: Ley Orgánica del Poder Judicial, 1985. Hereinafter cited as Ley Orgánica del Poder Israel: Nazi and Nazi Collaborators (Punishment) Law, 1950. Hereinafter cited as Nazi Collaborators Law


viii JURISPRUDENCE Permanent court International Justice: S. S. Lotus (France v. Turkey), 1927 P.I.C.J. (Ser A) No.10 (Sept 7). Hereinafter cited as The Lotus Case International Court of Justice: Arrest Warrant of April 11th 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 13 EJIL (2002) 853. Hereinafter cited as Arrest Warrant Case Military & Parliamentary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction, Admissibility, 1984 ICJ Rep. 392, June 27th (1986) . Hereinafter cited as Nicaragua Case Mutual Assistance Case: (Djibouti v. France), Judgment, I.C.J. Reports 2008/14 4, (2008). Hereinafter cited as Mutual Assistance Case North Sea Continental Shelf (F.R.G./Den.; F.R.G./Neth.), 1969 ICJ 3, 44 (Feb. 20) . Hereinafter cited as North Sea Continental Shelf case Permanent Court of Arbitration: Island of Palmas Case (Netherlands, USA), 4th April 1928, Vol. II (1928). Hereinafter cited as Island of Palmas Case Special Court of Seirra Leone: Prosecutor v. Charles Ghankay Taylor Case Number SCSL-2003-01-AR72(E) Special Court for Sierra Leone. Hereinafter cited as Ghankay Taylor Case


ix United States of America: Adella Chiminya Tachiona, on Her Own Behalf on Behalf of Her Late Husband Tapfuma Chiminya Tachiona, and on Behalf of All Others Similarly Situated, Efridah Pfebve, on Her Own Behalf and on Behalf of Her Late Brother Metthew Pfebve, Elliot Pfebve, on His Own Behalf and on Behalf of His Brother Metthew Pfebve, Evelyn Masaiti, on Her Own Behalf, Maria Del Carmen Stevens, on Her Own Behalf, on Behalf of Her Late Husband David Yendall Stevens, and on Behalf of All Others Similarly Situated, Plaintiffs-appellees-cross-appellants,robert Gabriel Mugabe, in His Individual and Personal Capacity, Zimbabwe African National Union-patriotic Front, Stan Mudenge, Jonathan Moyo, Certain Other Unknown Named Senior Officers of Zanu-pf, Defendants, v. United States of America, Intervenor-appellant-cross-appellee, 386 F.3d 205. Hereinafter cited as Adella Chiminya et al., v. United States of America Ker v. Illionois 119 U.S 436 (1886) . Hereinafter cited as Ker v. Illinois Li Weixum et al., v. Bo Xilai, Civ. No. 04-0649 (RJL) (US district Court Columbia). Hereinafter cited as Li Weixum et al., v. Bo Xilai Republic of Mexico v. Hoffman 324 U.S. 30, 35-36 (1945); Ex p. Peru. Hereinafter cited as Mexico v. Hoffman United States of America v. Roy. M."Chuckie Taylor," Belfast, CASE NO. 06-20758CR-ALTONAGA(s) 18 U.S.c. ยง 2340A(c) (2010). Hereinafter cited as Chuckie Taylor Case United States v. Toscanino (1975) 500 F 2d 267. Hereinafter cited as United States v. Toscanino


x United Kingdom: R v. Bow Street Magistrates Ex parte. Mackeson [1981] 75 Cr.App.R. 24. Hereinafter cited as R v. Bow Street ex p. Mackeson R v. Bow Street Metropolitan Stipendiary Magistrate & Others, Ex parte Pinochet Ugarte [2000] 1 A.C. 61. Hereinafter cited as R v. Bow Street ex p. Pinochet R v. Guildford Justices Ex p. Healy [1983] 1 W.L.R. 108. Hereinafter cited as R v. Guildford Justices R v. Horseferry Road Magistrates Court Ex P. Bennett [1993/4] 1 Cr. App. R. 147. Hereinafter cited as Horseferry Magistrates Case R v. Mullen [1999] 2 Cr. App. R. 143. Hereinafter cited as Mullen’s Case R v. Staines magistrates Court Ex p. Westfallen [1998] 1 W.L.R. 652. Hereinafter cited as Staines Magistrates Ex p. Westfallen Zoernsch v. Waldock [1964] 1 W.L.R. 675. Hereinafter cited as Zoernsh v. Waldock Australia/ New Zealand: Regina v. Hartley [1978] 2 N.Z.L.R. 199 (C.A.). Hereinafter cited as Regina v. Hartely Nulyarimma v. Thompson, 39 ILM 20, (Austl.) (1999). Hereinafter cited as Nulyarimma v. Thompson Spain:


xi Guatemala Genocide Case [2003] 42 ILM 686 (2003). Hereinafter cited as Guatemala Genocide Case Belgium: HSA et al., v. Sharon Ariel et al, 42 I.L.M. 596, (2003). Hereinafter cited as HAS et al., v. Sharon Ariel France: Re: Argoud 45 I.L.R. 90 [1964]. Hereinafter cited as Re: Argoud Israel: Eichmann v. Attorney General of Israel (1962) 36 ILR 277. Hereinafter cited as Eichmann case South Africa: State v. Ebrahim 1991 (2) SALR 553, Hereinafter cited as Ebrahim Case RESOLUTIONS & UN DOCUMENTS The Charter of the United Nations, 1945. Hereinafter cited as UN Charter UN Statute for the International Criminal Tribunal for Rwanda, 1994. Hereinafter cited as ICTR statute UN statute for the International Criminal Tribunal for the former Yugoslavia, 1993 . Hereinafter cited as ICTY statute


xii UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation amongst States in accordance with the Charter of the United Nations, A/ RES/25/2625, 1970. Hereinafter cited as Friendly Relations Declaration A/RES/ 25/2625 UN Document: Immunity of State officials from foreign criminal jurisdiction A/CN. 4/596, 2011. Hereinafter cited as Immunity of State Officials from Foreign Criminal Jurisdiction UN Security Council: (June 2008) Report of the Commission on the use of the principle of Universal Jurisdiction by some non-African States as recommended by the conference of Ministers of Justice/Attorneys general the executive council, EX.CL/411(XIII), Egypt: Sharm El-Sheikh. Hereinafter cited as UN security Report EX.CL/411 UN Security Council Resolution of June 23rd 1960, Doc S/4349. Hereinafter cited as Security Resolution Doc S/4349 BOOKS Books & Articles in Books: Bassiouni C. M., International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms, Vol II, Brill, 2008. Hereinafter cited as Bassiouni, C.M., international Criminal Law Brownlie, I., Principles of Public International Law, (5th ed.), Oxford: Oxford University Press, 1998. Hereinafter cited as Brownlie, I., Principles of Public International Law


xiii Macedo, S., Univeral Jurisdictoin: National Courts and the Prosecution of Serious Crimes under International Law, Pennsylvania: University of Pennsylvania Press, 2004. Hereinafter cited as Macedo, S., Universal jurisdiction Ott D. H, Public International Law in The modern World, FT: Prentice Hallter, 1987. Hereinafter cited as Ott, D.H., Public International law in the Modern World Ryngaert C., Jurisdiction in International Law, Oxford: (Oxford monographs in International law), 2008. Hereinafter cited as Ryngaert, C., Jurisdiction in International Law Schabas W.A, Genocide in International Law: The Crime of Crimes, Cambridge: Cambridge University Press, 2000. Hereinafter cited as Schabas, Genocide in international Law Shaw, M.N., International Law, (6th ed.), Cambridge: Cambridge University Press, 2008. Hereinafter cited as Shaw, M.N., International Law Articles in Journals Akande, D., (2004): International Law immunities and the International Criminal Court, The American Journal of International Law Vol. 98, No. 3, Pp. 407 - 433. Hereinafter cited as Akande, D., International Law Immunities and the International Criminal Court Akande, D and Shah, S. (2011) Immunities of State Officials, International Crimes and Foreign Domestic Courts. EJIL Vol. 21, No. 4. Hereinafter cited as Akande and Shah., Immunities of State Officials,, International Crimes and Foreign Domestic Courts


xiv Akehurst M., (1972-1973) Jurisdiction in International Law, 46 Brit. Y. B. Int'l L. 145. Hereinafter cited as Akehurst, M., Jurisdiction in International Law Anatolevich, K., (2008), Memorandum by the secretariat on immunity of state officials from foreign criminal jurisdiction, UN Doc. A/CN.4/596 (2008), paras. 94 – 153, 154-212. Hereinafter cited as Kolodkin., Memorandum by the Secretariat on immunity of State Officials from Foreign Criminal Jurisdictions Anatolevich K., (2008) Special Rapporteur, Preliminary report on immunity of State officials from foreign criminal jurisdiction A/CN.4/601, Geneva: ILC 16th Session Application for arrest warrant against general Mofaz 53 Int'l & Comp. L.Q. 771 2004. Hereinafter cited as Mofaz Case Bassiouni, M.C., (2004) The History of Universal Jurisdiction and Its Place in International Law, In Macedo, S. Universal Jurisdiction: vol. II Essays and comments Ch. 1. Hereinafter cited as Bassiouni, M.C., The history of Universal Jurisdiction Bassiouni, M.C., (2001-2002) Universal Jurisdiciton for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81, Pp.81-162. Hereinafter cited as Bassiouni, M.C., Universal Jurisdiction for International Crimes Beccaria, (1764) Traité des délits de temps et des peines, Economiste et Criminaliste italien, para. 21. Hereinafter cited as Beccaria, Traité des délits de temps et des peines Bykhovsky, G., (2003) An Argument Against Assertion of Universal Jurisdiction by Individual States, 21 Wis. Int’l L.J. 161. Hereinafter cited as Bykhovsky, G., An Argument Against Assertion of Universal Jurisdiction by Individual States


xv Bradley C.A., (2001) Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F.323. Hereinafter cited as Bradley, C.A., Universal jurisdiction and U.S. Law Brown B.S., (2000-2001) The Evolving Concept of Universal Jurisdiction, 35 New Eng. L. Rev 383. Hereinafter cited as Brown, B.S., The Evolving Concept of Universal Jurisdiction Dugard, J., (2005) Immunity, human rights and international crimes, J. S. Afr. L. 482. Hereinafter cited as Dugard, J., Immunity, human rights and International Crimes Green, L.C, (1960) The Eichmann Case, The Modern Law Review, Vol. 23, No. 5. Hereinafter cited as Green, L.C., The Eichmann Case Gull, A., (1997) Public Interest Immunity and The Right to A Fair Trial, 2 J. C.L. 5. Hereinafter cited as Public Interest Immunity and The right to a fair Trial Jennings R. Y., (1938) The Caroline and McLeod Cases, The American Journal of International Law, Vol. 32, No. 1, Pp. 82 - 99. Hereinafter cited as Anatolevich K., preliminary report on Immunity of State Officials from Foreign Criminal Jurisdictions Jordan, J., (2000) Universal Jurisdiction In A Dangerous World: A Weapon For All Nations Against International Crime, 9 Mich. St. U.-DCL J. Int’l L. 1. Hereinafter cited as Jordan, J., Universal Jurisdiction In a Dangerous World Kalek, W., (2008-2009) From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008 30 Mich. J. Int'l L. 927. Hereinafter cited as Kalek, W., From Pinochet to Rumsfeld: Universal Jurisdiction in Europe


xvi Meron, T, (1995) International Criminalization of Internal Attrocities, 89 Am J Int’l L 554, 569. Hereinafter cited as Meron, T., International Criminalization of Internal Attrcities Mills. Z., (2009) Does the World Need Knights Errant to Combat Enemies of All Mankind? Universal Jurisdiction, Connecting Links, and Civil Liability, 66 Wash. & Lee L. Rev. 1315. Hereinafter cited as Millz, Z., Does the world need kknights Errant to Combat Enemies of all Mankind? Morrison, D and Weiner, J.R., (2010) Curbing Enthusiasm for Universal Jurisdiction, B.J.Int’l Law. Hereinafter cited as Morrison and Weiner., Curbing Enthusiasm for Universal Jurisdiction Summers, Mark.A., (2005-2006) Immunity or Impunity? 31 Brook. J. Int'l L. 465. Hereinafter cited as Summers, M.A., Immunity or Impunity Reydams, L., (2003) Belgium's First Application of Universal Jurisdiction: The Butare Four Case, 1J. INT'L CRIM. JUST. 428. Hereinafter cited as Reydams, L., Belgiums First Application of Universal Jurisdiction Whomersley, C.A., (1992) Some Reflections on the Immunity of Individuals for Official Acts, International and Comparative Law Quarterly, Vol. 41, 848, p851. Hereinafter cited as Whomersley, C.A., Some Reflections on the Immunity of Individuals for Official Acts Xiaodong Y., (2002) Immunity for International Crimes: A Reaffirmation of Traditional Doctrine, 61 Cambridge L.J. 242. Hereinafter cited as Xiaodong, Y., Immunity for International Crimes MISCELLANEOUS:


xvii Notes: (1964-1965) Diplomatic immunity: Privilege of subordinate member of United Nations Mission, 6 Harv. Int'l. L. Club J. 72. Hereinafter cited as Privilege of subordinate member of UN Mission Websites: Mr Bellingham, April 2011: http://www.publications.parliament.uk/pa/cm201011/cm1104266/ tet/110426w0016.htm (26 Apr 2011) . Hereinafter cited as Mr Bellingham’s Commentary


xviii

(D) Statement of Relevant Facts The Republic of Manconia (RoM), a former colony of the United States of Merseystan (USM), gained its independence on 5 July 1965 and joined the United Nations on 1 February 1966. There are two large ethnic groups; the Blues and the Reds, comprising 62% and 28% of the population, respectively. Since independence, there has been tension between the two groups. On 5 July 1999, a Red-dominated group, the Provisional Government of North Manconia, made a Declaration of Independence outside city hall in Redville. The Republic of North Manconia (RNM) seceded from the RoM and became the world’s 193rd State. RNM joined the United Nations on 7 December 2008. During mid-2009 tension between the Blues and the Reds became increasingly acute and violence spread in RNM. Red leaders ordered that the blues be “eliminated”, directing attacks against Blues living in RNM. Radio stations, including Fergietime FM, hosted by Mr. Neville, encourage listeners to “squash the Blues”. By 15 August 2009, the systematic attacks on Blues within RNM had reduced their population within that country from 600,000 to 70,000 people: the number of deaths is estimated at 320,000 people, while over 200,000 Blues fled the country. Of those who fled, 120,000 crossed to the RoM where refugee camps have been constructed; those living close to the border with Orangestan (approximately 50,000) sought asylum there; and those who could afford to purchase plane tickets sought refuge in USM. By 25 August 2009, the attacks on the Blues have ceased. In the face of economic sanctions from the UN and the EU, the ruling Red regime agrees to peace talks, mediated by the UN Secretary-General. On 20 October 2009, under the Agreement on National Reconciliation of the Republic of Northern Manconia, a government of national unity is


xix formed. In December 2009, Mr Neville is appointed as the RNM government’s Minister for Culture, Media and Sport. USM has been a party to the 1948 Genocide Convention since 1968 and incorporated it into their national law when the 2002 Genocide Act was passed. In the aftermath of a recent USM election, the new government that took office resolved to take action regarding the crimes which had been committed in RNM. On 10 May 2010, USM requested the extradition of Mr Neville from RNM for the purposes of this prosecution. RNM refuses the request for extradition. In May 2011, Mr. Neville attended the annual Regional Culture Ministers’ meeting in Orangestan. On 12 May 2011, a Special Forces unit from the USM army covertly enters Orangestan. They kidnap and smuggle Mr. Neville out of the country and hand him over to authorities in USM. Mr. Neville, two days later, is brought before a local magistrate in Shanklyville, the capital of USM. Bail is refused. RNM demands the immediate release of Mr. Neville from detention in USM and his return to Redville. Mr. Neville objects to being tried, citing: USM’s lack of jurisdiction over his alleged crimes, his immunity as a serving minister, and the manner in which he was brought before the Court. His case is appealed up to the USM Supreme Court. On 3 April 2012, the Supreme Court dismisses all three objections of Mr. Neville. His case is sent back to the criminal court of first instance, and his trial is scheduled to start on 5 May 2012. In March 2012, the RNM institutes proceedings against the USM before the International Court of Justice in Respect of alleged violations of the rights of its national, Mr Neville, requesting the Court to adjudge and declare that: USM lacks jurisdiction over the alleged acts of Mr. Neville, USM has violated the immunity from criminal jurisdiction of Mr.


xx Neville, and the Courts of USM lack jurisdiction over Mr. Neville because he was illegally abducted from a foreign State.


xxi

(E) Issues In The Case of North Manconia, USM requests this honourable court to adjudge and declare whether: I. USM lacks jurisdiction over the alleged acts of Mr. Neville, which were committed outside USM territory and did not involve USM nationals. A. Does unlimited Universal criminal jurisdiction exist? B. Does Universal jurisdiction apply to the crime of genocide? i. Does State practice indicate universal jurisdiction applies to genocide? ii. Has universal jurisdiction become customary international law? II) Mr. Neville is protected from the criminal jurisdiction of USM as a serving minister of the RNM government. A. Is Mr. Neville, as the Minister for Culture, Media and Sport, given immunity Ratione Personae and Ratione Materiae? i) Does immunity Ratione Personae extend to State officials and Ministers such as the Minister for Culture, Media and Sport? ii) Does Ratione Materiae apply to State officials abroad on ‘special missions‘ as well as acts carried out in an official capacity? B. Is Mr. Neville is given immunity under international treaty law which protects him from Criminal Jurisdiction? III. The Courts of USM lack jurisdiction over Mr. Neville because he was illegally abducted from a foreign State.


xxii A. If State practice of the ‘male captus, male detentus’ is inconsistent should it be excluded? i. Are there any States which regularly oppose the ‘male captus, male detentus’ rule? ii. Is there evidence showing that illegal abduction negates criminal jurisdiction?. B. Can the jurisdiction of a court be made null and void by illegal actions? C. Has USM breached the territorial sovereignty of RNM?


xxiii

(F) Summary of Arguments 1. The Republic of North Manconia submits that unlimited universal criminal jurisdiction does not exist. 2. The Republic of North Manconia submits that even if universal jurisdiction does exist, it does not apply to the crime of genocide. 3. The Republic of North Manconia submits that universal jurisdiction has not become customary international law. 4. The Republic of North Manconia submits that the Minister for Culture, Media and Sport is included in the group of ministers given immunity Ratione Personae. 5. The Republic of North Manconia submits that the Minister for Culture, Media and Sport is included in the group of ministers given immunity Ratione Materiae. 6. The Republic of North Manconia submits that the Minister for Culture Media and Sport is given immunity under international treaty law. 7. The Republic of North Manconia submits the ‘male captus, male detentus’ rule should not be applied because there is no regular and consistent State practice to support it. 8. The Republic of North Manconia submits that the jurisdiction of a court is made null and void by illegal actions. 9. The Republic of North Manconia submits that USM has breached the territorial sovereignty of RNM.


xxiv

(G) Jurisdiction of the Court Both the Republic of Manconia and the United States of Merseystan are members of the United Nations and party to the statute of the International Court of Justice. They have accepted the jurisdiction of the court by means of Article 36 of the ICJ statute, by virtue of the respective declarations to which there are no disputes between the parties. In March 2012, the Republic of North Manconia initiated proceedings against the United States of Merseystan in the ICJ.


1

(H) Arguments I. USM lacks jurisdiction over the alleged acts of Mr. Neville, which were committed outside USM territory and did not involve USM nationals. A. Unlimited universal criminal jurisdiction does not exist. RNM submits that unlimited universal jurisdiction1 does not exist. The status of exercising universal jurisdiction over core crimes has certainly not become a crystallized rule of customary international law,2 therefore RNM submits that universal jurisdiction is not available to States due to lack of State practice. President Nagendra Singh of the ICJ stated, “There is also the key doctrine of nonintervention in the affairs of States... The principle of non-intervention is to be treated as a sanctified absolute rule of law.”3 Further, when discussing The Eichmann Case, Green stated, “[A] state is not competent by international law to try an alien for an offense committed abroad... To try an alien in circumstances alleged to infringe international law would constitute a wrong... against the state of which he is a national.”4

1

Jurisdiction with no restrictions regarding, for instance, the location of the crimes commission, nationality of the accused, effects of the crime etc. 2

Ryngaert C, Jurisdiction in International Law, 2008, at p.111

3

The Nicaragua Case (1986), Separate Opinion of Judge Nagendra Singh.

4

Green, L.C, The Eichmann Case, (1960), at p512: “the only state, therefore, entitled to protest against the exercise of jurisdiction would be Germany”. Eichmann was lawfully tried in Israel because Germany raised no objections based on its Sovereignty. International law recognizes the sovereign rights of the states to try their own nationals and had Germany objected to Eichmann’s trial then Israel’s interest would have been superseded by Germany’s interest. RNM do object to the trial of Mr. Neville in a foreign state therefore USM do not have jurisdiction to try Mr. Neville. To do so would be an unlawful usurpation of RNM’s sovereignty.


2 It is repeatedly said that a State “may not exercise its power in any form in the territory of another state.”5 Mills argues6 that the UN Charter states the United Nations Organization is based on the principle of the sovereign equality of all its Members.7 Sovereignty is a fundamental principle of international law and universal jurisdiction must not interfered with this. If USM exercise jurisdiction over Mr. Neville it would be interfering with the sovereign rights of RNM and would amount to a gross violation of a core value of the UN. Sovereign equality extends to all states and to disregard it is to disregard political independence and therefore must not be permitted. B. Even if one were to accept the concept of unlimited universal jurisdiction in theory, then RNM submits that it would not apply to cases concerning genocide. There is a lack of treaty law prescribing universal jurisdiction for States which indicates that it is not available for the crime of genocide in national courts. The Genocide Convention8 does not provide for universal jurisdiction.9 It is clear from the plain language of the convention that universal jurisdiction is not granted explicitly and “fails to affirmatively support any international norm of universal jurisdiction for genocide.”10 Although it is

5

The Lotus Case at p.18

6

Mills. Z, Does the World Need Knights Errant to Combat Enemies of All Mankind? 2009, at p.1354. 7

UN Charter, Art.2, par.4: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”. 8

Genocide Convention, 1948.

9

Ibid. at Art. 6: “Persons charged with genocide... shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction.” 10

Supra. fn.6, at p1323 - noting "the absence of a provision on universal jurisdiction in the Genocide Convention".


3 established that authority may be exercised on a territorial basis or where an “international penal tribunal”11 is created. USM, a State party to the Genocide Convention,12 may argue that the wording in Article 1 of the 1948 Convention13 requires them to prosecute Mr. Neville. However, RNM submit that this provision creates an obligation only to try a defendant who has committed crimes within the territory of the contracting state. This is because there is no specific mention of universal jurisdiction and no State practice to support its existence. i. State practice indicates that universal jurisdiction does not apply to cases involving genocide. National legislation and national judicial practice is insufficient to establish customary international law with respect to universal jurisdiction in relation to genocide.14 Two criteria 11

ICTY Statute, 1993, Art.1, and, ICTR Statute, 1994, Art. 1. (However, these statutes establish specific jurisdiction limited to crimes committed in those States, so not universal jurisdiction). 12

The Case of North Manconia, p.4, par.22: “USM has been a party to the 1948 Genocide Convention since 1968. USM law includes the 2002 Genocide Act. Relevant provisions of this legislation include the following: [Section] 2. An act of genocide, wherever committed, constitutes an offence against the law of the United States of Merseystan.” 13

“The Contracting Parties confirm that genocide... is a crime under international law which they undertake to prevent and to punish,” 14

Bassiouni, M. C., Universal Jurisdiciton for International Crimes: Historical Perspectives and Contemporary Practice, 2001-2002, p.150. Sufficient state practice is established when the principle at issue has duration, uniformity, consistency and generality (Ott D. H., Public International Law in The Modern World pp.15-16, 1987). State practice consists of: (1) specific legislation enacting provisions the universal jurisdiction; (2) legislative enactments that authorize the application of universal jurisdiction; and (3) State judicial practice, whether based on national legislation or international conventions (Brownlie, I., Principles of Public International Law, 1998). Opinio juris is the external acceptance by states that a practice is recognized as being obligatory (Ott D. H., Public International Law in The modern World, p.15, 1987). To establish opinio juris, states must behave in a such a manner that their conduct is “evidence of a a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, ie., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.” (North Sea Continental Shelf Case 1969).


4 are necessary to establish a customary international law, viz., the existence of a sufficient state practice and opinio juris sive necessitatis. 15 That unlimited universal jurisdiction has never even resulted in a trial16 indicates that it is not available specifically for genocide. Ardent supporters of universal jurisdiction list cases claiming to rely on universal jurisdiction. However, the legal provisions they cite do not stand for that proposition, or at least not as unequivocally as represented.17 Scholars have researched the national legislation of States and found that few of them have provisions allowing their legal system to exercise universal jurisdiction “over anyone who has committed a jus cogens international crime, irrespective of the time and place of the crime’s occurrence, its impact upon the territory of the enforcing state, its commission by one of its nationals, or its commission against one of its nationals”.18 This indicates a lack of customary practice in respect of universal jurisdiction. Spain: Spain currently exercises broader universal jurisdiction than any other State19 and, in theory, permits the exercise of unlimited universal jurisdiction for prosecution of foreign defendants for genocide, terrorism, and other crimes under international law, regardless of where they were committed.20 Despite the apparent willingness of the legislature to support unlimited universal jurisdiction, its application by the judiciary has been hesitant. As, for instance, in the majority opinion of the Spanish Supreme Court in the Guatemala

15

Brownlie, I., Principles of Public International Law, 1998, pp.4-9.

16

Supra. fn.6, at p.1358

17

Bassiouni, M. Cherif, Universal Jurisdiciton for International Crimes (2001-2002), at p.82

18

Ibid. at pp.105-106.

19

Supra. fn.6 at p.1334.

20

Ley Orgánica del Poder Judicial, Art. 23(4) ("Spanish courts will be equally capable of exercising jurisdiction over crimes [including genocide, terrorism, piracy, and other crimes which Spain has a legal obligation to prosecute] committed by Spanish people or by foreigners outside the national territory.... ").


5 Genocide Case.21 The dissenting opinion in the same case also reiterated the majority’s reluctance to implement unlimited universal jurisdiction. 22 The Spanish judiciary are unwilling to exercise their authority over a defendant even where national legislation favors unlimited universal jurisdiction. Furthermore, the majority stated that, “In the application of the foregoing regarding the crime of genocide, jurisdiction of Spanish courts cannot be extracted, either from the Convention on the Prevention and Punishment of Genocide or from any other treaty signed by Spain, on the basis of universal jurisdiction”.23 The Spanish judiciary’s reluctant use of State legislation which permits universal jurisdiction indicates that there is no authority under customary international law to exercise it over genocide. Belgium: Belgium has “the most far reaching legislation in respect of universal jurisdiction”24 yet no case involving unlimited universal jurisdiction can be demonstrated. In

21

Guatemala Genocide Case (2003) (English translation). The Supreme Court stated at p.698, “[T]here is significant support in doctrine for the idea that no State may unilaterally establish order through criminal law, against everyone and the entire world... [and] in no agreement between States has there been established unlimited jurisdiction over acts occurring in the territory of another State.” Ibid. at p.710 (dissenting opinion). “The regulation of the principle of universal jurisdiction, established by the Spanish legislature in the Judicial Power Organization Act of 1985, does not limit the application of this jurisdiction by means of the additional requirement that there be some point of connection to a national interest. The majority opinion seems to find that this provision of the Legislature is unreasonable, and applying reasoning based on lege ferenda corrects that which is established in Article 23.4(a) by insisting on an additional requirement.” 22

23

Guatemala Genocide Case (2003), at p.701.

24

Supra. fn.17 at p.145.


6 1999 Belgium amended its law on genocide, 25 essentially permitting Belgian courts to exercise universal jurisdiction over genocide regardless of its location.26 However, in the Arrest Warrant case27 President Guillaume strongly supported the view that states are not to exercise universal jurisdiction. He refers to many academic writers and among them quotes Beccaria: “Judges are not the avengers of humankind in general... A crime is punishable only in the country where it was committed.”28 Additionally, he refers back to the Lotus case where he states that jurisdiction may only be present for a crime committed abroad where the offender, or at the very least the victim, should have the nationality of that State. In The Case of North Manconia neither Mr. Neville nor the victims are USM citizens. President Guillaume stated further that; “The primary aim of the criminal law is to enable punishment in each country of offenses committed in the national territory”.29 He also found no support for unlimited universal jurisdiction under international law and warned of its potential dangers.30

25

Punishment of Grave Violations of International Humanitarian Law, 1999 art. 7, (defining and criminalizing genocide, torture, and other grave breaches of international law). 26

Punishment of Grave Violations of International Humanitarian Law, 1999. Arts. 1-4, at p. 921 ("The Belgian courts shall be competent to deal with breaches provided for in the present Act, irrespective of where such breaches have been committed."). 27

Arrest Warrant Case, 2002

28

Beccaria, Traité des délits de temps et des peines, (1764) para.21.

29

Arrest Warrant Case, 2000, at p.36

30

Ibid. at p.43 “[A]t no time has it been envisaged that jurisdiction should be conferred upon courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be found. To do this would, moreover, risk creating total judicial chaos.”


7 Similarly, the dissenting joint opinion of Judges Higgins, Kooijmans and Buergenthal, addressed unlimited universal jurisdiction and concluded, based upon an examination of international conventions and customs that no support for the practice exists.31 Judge Oda, who similarly dissented, stated that: “universal jurisdiction is increasingly recognized in cases of terrorism and genocide... I believe, however, that the Court has shown wisdom in refraining from taking a definitive stance in this respect as the law is not sufficiently developed and, in fact, the Court is not requested in the present case to take a decision on this point.”32 Despite the provisions in force universal jurisdiction in Belgium has “thus proved to be a wasted effort... drawing fire from both allies abroad and Belgium's own judiciary.”33 The lack of support for universal jurisdiction is overwhelming. Given Belgium’s comprehensive legislation regarding universal jurisdiction there is an obvious lack of State practice to give it effect, demonstrated by the reluctance in enforcement. This further indicates that there is no customary international law whereby universal jurisdiction applies to genocide. USA: It has been submitted that the U.S. “reluctance... to assert universal jurisdiction underscores the premise that this doctrine is not part of well-established customary international law”.34 The U.S. executive is particularly adverse to universal jurisdiction: “The U.S. government vigorously opposed all proposals to build the jurisdiction of the ICC upon the foundation of universal jurisdiction, preferring to base the ICC’s jurisdiction upon State

31

Ibid. at pp.68-76 (joint separate opinion of Judges Higgins, Kooijmans, and Buergenthal). At that time, "virtually all national legislation" and case law involved some sort of connection to the forum state. 32

Ibid. (judge Oda dissenting opinion), at p.51

33

Supra. fn.6, at p.1333.

34

Bykhovsky, G., ‘An Argument against Assertion of Universal Jurisdiction by Individual States’, 2003, p.168.


8 consent”.35 The U.S. signed the ICC statute on December 31, 2000: the last day any State could sign the Treaty without ratifying it first.36 Upon signing President Clinton noted: “we are not abandoning our concerns about significant flaws in the treaty”.37 Since then “the United States has rarely if ever exercised universal criminal jurisdiction”. 38 Curtis Bradley argues that the lack of universal jurisdiction in the US judiciary is down to the fact that its use is “ultimately determined by Congress, not international law or the federal courts.”39 The federal genocide statute does not assert universal jurisdiction; rather, the offense must occur in the United States or the offender must be a U.S. national.40 Bradley further argues that, “while international law may play some role in the interpretation of congressional enactments, its influence is likely to be modest in this area, and, in any event, it cannot be used to override clear legislative intent”.41 The applicants argue that the absence of provisions for universal jurisdiction by Congress in the Genocide Convention Implementation Act signifies a lack of intent to approve its use, especially in genocide cases. Given the U.S.’ strong opposition to universal jurisdiction, their position a permanent member of the UN Security Council and the fact they are also, arguably, the most powerful state in the world, this must indicate the absence of universal jurisdiction from customary international law, including for the crime of genocide.

35

Brown Bartram S., The Evolving Concept of Universal Jurisdiction, 2000-2001, at p.386

36

Rome Statute, Art 125(1).

37

Supra. fn.35 at p.387

38

Bradley Curtis A., Universal Jurisdiction and U.S. Law, 2001, p.347

39

Ibid. at p.326

40

Genocide Convention Implementation Act, (1994). This statute is an implementation of the U.S. obligations under the Genocide Convention, 41

Bradley Curtis A., Universal Jurisdiction and U.S. Law, 2001, p.333


9 UK: In the United Kingdom there is strong evidence to support the Applicant’s submissions from the Pinochet42 case, where Lord Slynn of Hadley said in his dissenting opinion that, "It does not seem... that it has been shown that there is any State practice or general consensus let alone a widely supported convention that all crimes against international law should be justiciable in National Courts on the basis of the universality of jurisdiction.�43 He further states: “The fact even that an act is recognised as a crime under international law does not mean that the Courts of all States have jurisdiction to try it... There is no universality of jurisdiction for crimes against international law".44 The UK judiciary is adverse to universal jurisdiction and this must strongly suggest that USM therefore lacks the jurisdiction to try Mr. Neville. ii. Mere assertion that universal jurisdiction applies to genocide does not make it customary international law. Despite the fact Article 6 of the Genocide Convention does not justify the use of universal jurisdiction,45 commentators argue that customary international law has recognised universal jurisdiction for genocide. This is regardless of the fact there is virtually no state practice to support that argument. The applicants question on what authority the arguments supporting universal jurisdiction are made. The commentators that favour universal jurisdiction include no conventional basis for their assertions and there is insufficient State

42

R v. Bow Street, Ex p. Pinochet at p.79 (Lord Lloyd of Berwick also dissenting).

43

Ibid. at p.79

44

Ibid. at p.80

45

Schabas W.A, Genocide in International Law, pp.353-78.


10 practice to support it. It is not uniform or consistent 46 and although there is legislation in place in some States which gives effect to universal jurisdiction there is virtually no evidence to show judicial support for it. RNM submits that universal jurisdiction is often “confused with other theories of extraterritorial criminal jurisdiction.... the legislation and practice of states overwhelmingly evidences a connection between the crime and the enforcing state based on the crime’s territorial impact or because of the nationality of the perpetrator or the nationality of the victim.�47 States are seemingly only comfortable exercising jurisdiction over an individual where they have some nexus with the offence, which is not present in The Case of North Manconia. Mere academic declarations that the status of universal jurisdiction has changed is simply not enough. There is almost no available evidence from State practice or opinio juris to support universal jurisdiction and as such it cannot be considered a rule of customary international law. Therefore, USM does not have jurisdiction to try Mr. Neville. II) Mr. Neville is protected from the criminal jurisdiction of USM as a serving minister of the RNM government. A. Mr. Neville, as the Minister for Culture, Media and Sport, is included in the group of ministers given immunity Ratione Personae48 and Ratione Materiae. 49 46

Bassiouni, M. C., Universal Jurisdiciton for International Crimes: Historical Perspectives and Contemporary Practice, 2001-2002, p.150. Sufficient state practice is established when the principle at issue has duration, uniformity, consistency and generality (Ott D. H., Public International Law in The Modern World pp.15-16, 1987). 47

Supra. fn.17, at p.104.

48

Where the governmental minister is absolutely immune from the criminal jurisdiction of the custodial and forum state. 49

Where the minister is an official of a foreign state, carried out the acts in question in his official capacity, and the custodial state is bound to recognise that the acts are not subject to its criminal jurisdiction on the basis of the foreign States immunity.


11 RNM submits that Mr. Neville should be afforded immunity from the criminal jurisdiction of USM. It is a well-established rule that Heads of States and diplomats to a foreign State possess immunities from the jurisdiction of other foreign States.50 Furthermore, it is submitted that in cases where immunity Ratione Personae or Ratione Materiae is found to exist, domestic courts are required to refuse to prosecute or refuse to continue with prosecution. 51 i) Immunity Ratione Personae extends to State officials and Ministers such as the Minister for Culture, Media and Sport; it is not limited to Heads of States and Foreign Ministers. The Ratione Personae principle was applied in the Arrest Warrant Case,52 where the ICJ stated that immunity applies to “…diplomatic and consular agents [and] certain holders of high-ranking office in a State, such as Head of State, Head of Government and Minister and Foreign Affairs”. 53 Akande and Shah54 point out the use of the words ‘such as’ suggests that the category of senior officials entitled to this immunity is not closed.55 Therefore RNM submits that the Minister for Culture, Media and Sport, is to be included in this category for the reasons discussed below. It is pointed out that “The predominant justification for such immunities is that they ensure the smooth conduct of international relations and, as such, they are accorded to those

50

“…The predominant justification for such immunities is that they ensure the smooth conduct of international relations and, as such, they are accorded to those State officials who represent the State at the international level…” – Akande, D & Shah, S. Immunities of State Officials, International Crimes and Foreign Domestic Courts. (2011), p.818 51

Kolodkin , Memorandum by the secretariat on immunity of state officials from foreign criminal jurisdiction, A/CN.4/596 (2008), paras. 94 – 153, 154-212. 52

Arrest Warrant Case, 2002, P. 3.

53

Ibid. at p.3

54

Akande, D & Shah, S. Immunities of State Officials, International Crimes and Foreign Domestic Courts. (2011) 55

Ibid, at p. 821


12 state officials who represent the state at the international level”.56 RNM submits that Mr. Neville’s position involves dealing in the international community on matters including cultural relations, media and participation in international sporting events. His actions may affect the international decisions of the foreign minister and the State itself. Therefore, Mr. Neville has immunity Ratione Personae and that the courts in USM must refuse to continue prosecution. ii) Ratione Materiae applies to acts carried out in an official capacity, but it is also submitted that it applies to State officials abroad on ‘special missions’. It is stated that the Minister for Foreign Affairs is afforded immunity to “ensure the effective performance of their functions on behalf of their respective States.”57 It was additionally stated, “in the performance of these functions, he or she is required to travel internationally, and thus must be in a position to do so freely whenever the need should arise”.58 This justification for immunity should be extended to Mr. Neville due to the requirement that he must travel to the annual Regional Culture Ministers meeting in Orangestan to effectively perform his State function as Minister for Culture, Media and Sport. Lord Diplock in Zoernsch v Waldock 59 provides persuasive evidence from a domestic court that an attempt to exercise jurisdiction over a foreign national, ignoring their immunity, constitutes a usurpation of the State sovereignty and diplomatic immunity of a State. Mr.

56

Ibid. at p. 818

57

Arrest Warrant case, 2002, para. 53

58

Ibid. at para. 53

59

Zoernsch v Waldock [1964]: “A foreign sovereign government, apart from personal sovereigns, can only act through agents, and the immunity to which it is entitled in respect of its acts would be illusory unless it is extended also to its agents in respects of acts done by them on its behalf”.


13 Neville as a minister working on behalf of the State is an agent and as such is entitled to immunity Ratione Materiae. C.A. Whomersley points out, “English courts will be reluctant to become involved in issues which concern what one might call the internal workings of the governments of foreign States�.60 B. Mr. Neville is given immunity under international treaty law which protects him from Criminal Jurisdiction. RNM puts forth that under Article 98 of the Rome Statute,61 the UN Convention on Special Missions,62 Articles 1(a), 31(1) and 31(5) and Article 29 of The Vienna Convention on Diplomatic Relations, 63 Mr. Neville must be afforded immunity. While USM and RNM are both not party to all these treaties, they reflect the practice of many States are therefore persuasive.64

60

Whomersley, C. A., Some Reflections on the Immunity of Individuals for Official Acts, 1992, p.851 61

Rome Statute, 1998

62

Convention on Special Missions, 1985.

63

The Vienna Convention on Diplomatic Relations, 1961.

64

ICJ Statute, Art 38 (1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a). international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b). international custom, as evidence of a general practice accepted as law; (c). the general principles of law recognized by civilized nations; (d). subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.


14 a) Article 98 of the Rome Statute,65 which establishes authority over all core international crimes, must be read to provide immunity to Mr. Neville. This is due to the fact that this article establishes immunity from jurisdiction over international crimes unless there is a waiver of immunity: RNM has not provided a waiver. Therefore the obligation to adhere to the immunity rule stands: USM have no authority to try Mr. Neville. The lack of willingness to accommodate the wishes of RNM shows a disregard for the idea of State sovereignty, the principle of non-intervention.66 b) The UN convention on Special Missions 67 also confers immunities on Mr. Neville. Akande’s and Shah’s argument – that the second branch of immunity, Ratione Personae, applies to Ministers on Special Missions abroad68 – must be considered. RNM submits that Mr. Neville’s journey to Orangestan was ‘Special Mission’ for the purposes of the UN Convention on Special Missions. Article 1(a) of the UN Convention on Special Missions states that “… a ‘special mission’ is a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task.” Mr. Neville was on a temporary mission and

65

Rome Statute: “… the court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with is obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the court can first obtain the cooperation of that third State for the waiver of the immunity…” 66

Friendly Relations document A/RES/25/2625 “States parties to an international dispute, as well as other States shall refrain from any action which may aggravate the Situation so as to endanger the maintenance of international peace and security, and shall act in accordance with the purposes and principles of the United Nations.” 67 68

Supra. fn.62.

Akande, D & Shah, S. Immunities of State Officials, International Crimes and Foreign Domestic Courts. EJIL (2011) Vol. 21, No. 4 p.823


15 sent by RNM to Orangestan for official purposes. The Regional Culture Ministers’ meeting in Orangestan must be considered an official purpose and therefore provide immunity. The Convention further states in Article 31(1) that “The representatives of the sending State in the special mission and the members of its diplomatic staff shall enjoy immunity from the criminal jurisdiction of the receiving State”. Thus, Mr. Neville, as the representative of RNM on his trip to Orangestan, should have full immunity from criminal jurisdiction. By kidnapping him for the purposes of prosecuting him; USM has infringed his immunity, whilst present in Orangestan as a State Minister, and do not possess jurisdiction over Mr. Neville. Article 31(5)69 reserves the right of the sending state, in this case RNM, to try Mr. Neville regardless of his immunity from criminal jurisdiction in USM. Although it may be argued that neither State has adopted the Special Mission Convention, and USM is not the receiving State, the important rule is that jurisdiction remains with the sending State: RNM. Akande and Shah raise the question, and suggest to the affirmative; do the “immunity provisions in that Convention represent rules of Customary International Law[?]. If they do, then an immunity ratione persona is available to a much broader group than was mentioned in the Arrest Warrant case.”70

The applicants submit that these provisions are part of

international customary law because they are an extension of the principle of nonintervention71 which is fundamental aspect of State sovereignty. This means immunity Ratione Personae should be afforded to Mr. Neville.

69

Supra. fn.62, Art 31 (5): The immunity from jurisdiction of the representatives of the sending State in the special mission and of the members of its diplomatic staff does not exempt them from the jurisdiction of the sending State. 70

Supra. fn.54 pp.821 – 822

71

Shaw, International Law, p.1147


16 c) The Vienna Convention on Diplomatic Relations, Article 29,72 states that diplomatic persons are inviolable and, as such, Mr. Neville should not have been ‘arrested or detained’ because he is protected by the statute. State practice indicates that there is support for these arguments. In Republic of Mexico v Hoffman,73 the US Supreme Court established the precedent that U.S. Courts are bound by suggestions of immunity submitted by the executive branch. According to U.S. State practice is a non-justiciable issue for which the executive has made specific rules that prohibits the courts exercise of jurisdiction over high-level foreign officials on special diplomatic missions. The executive went as far as to state it is a “court’s duty” to surrender jurisdiction and interestingly do not limit immunity to Heads of State, Heads of Government, or Foreign Ministers. This widens the criteria for Ratione Personae and indicates Mr. Neville, as the Minister for Culture, Media and Sport, would be included in the group of protected persons and should be released back into RNM’s custody. In the Mutual Assistance case74, Djibouti relied on the Special Missions Convention in its written pleadings although neither it nor France was a party to that Convention.75 Therefore, in The Case of North Manconia, this principle can be seen as persuasive because although RNM are also not party to this convention, neither were Djibouti or France, yet it was still held to apply.

72

The Vienna Convention on Diplomatic Relations, 1961:“The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” 73

Mexico v Hoffman, (1945) pp.35 – 36

74

Mutual Assistance Case, 2007

75

Ibid. at paras.131–140


17 Recent Hansard from the British government has indicated that, in the UK, although the Convention on Special Missions has not been ratified, certain high-level official visitors are still granted immunity. 76 The Israeli general Mofaz was exempt from an arrest warrant77 on the basis that he was the Defense Minister, despite being accused of grave breaches of “willful killing” as defined by Article 147 of the Fourth Geneva Convention. In this case, Judge Pratt specifically refers to Culture, Media and Sport Ministers as not being entitled to immunity.78 However, looking at Judge Pratt’s decision, it is made on the premise that a Culture, Media and Sport Minister does not need to travel. He makes no effort to distinguish the differences in travel requirements between Culture, Media and Sport ministers and Defense ministers. RNM submits that, as a Culture, Media and Sport minister, Mr. Neville would need to travel. By that reasoning he would also be entitled to immunity Ratione Personae due to the many different responsibilities especially that which comes with being a Cultural, Media and Sport minister, especially with the growing international aspects these have such as international sports and cultural gatherings. State practice suggests that recognising immunity of all personnel acting on behalf of States is customary international law. The Applicants submit that USM does not have authority to try Mr. Neville who must be granted immunity Ratione Personae given his 76

“The Government have kept the question of ratification under review... However, developments in customary international law regarding special missions and certain highlevel official visitors that have been recognised by our courts require that appropriate privileges and immunities are extended to visitors on special missions” - Mr Bellingham’s Commentary: available at - http://www.publications.parliament.uk/pa/cm201011/cmhansrd/ cm110426/text/110426w0016.htm (12/2011) 77

Mofaz Case, 2004

78

Ibid. at p.773


18 position. However, if this is not accepted then his actions would also qualify under immunity Ratione Materiae principle. III. The Courts of USM lack jurisdiction over Mr. Neville because he was illegally abducted from a foreign State. A. States practice does not make regular and consistent

use of the ‘male captus, male

detentus’ rule, therefore this rule should not be applied as established customary international law. i. National and international case law indicates that where an individual has been illegally brought into a state’s jurisdiction, its domestic courts must stay proceedings by refusing to continue with prosecutions. State v Ebrahim 79 embodies a basic principle practised uniformly by several states, that having committed an unlawful act to bring the defendant into their jurisdiction, courts cannot then prosecute the defendant. By abducting Mr. Neville, USM has committed an international wrongful act 80 and should lead the court to demand USM cease immediately. In R v Hartley,81 it was held that for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as ‘safe’. The New Zealand court held that it lacked jurisdiction because the accused was brought to court by means of illegal abduction and therefore a conviction would be unsafe and constitute

79

Ebrahim Case, 1991: “The individual must be protected against illegal detention and abduction, the bounds of jurisdiction must not be exceeded, sovereignty must be respected, the legal process must be fair to those affected and abuse of law must be avoided in order to protect and promote the integrity of the administration of justice. This applies equally to the state. When the state is a party to a dispute, as for example in criminal cases, it must come to court with "clean hands". When the state itself is involved in abduction across international borders, as in the present case, its hands are not clean.” 80 Articles 81

on the Responsibility of States, Arts.11&12

Regina v Hartley [1978]


19 a miscarriage of justice. This marks one of the very first cases departing from the rule of noninquiry.82 Invoking the concept of “freedom in society,” the New Zealand Court of Appeals held that the defendant had a right to be free of the process of New Zealand’s executive authority unless it followed formal extradition procedures and obtained the official state consent of the Australian government. This case reiterates the point that USM should have obtained custody in a legal way such as through diplomatic channels. By depriving Mr. Neville of his right to freedom as given to him by the Universal Declaration on Human Rights83 they have violated international custom. While the Universal Declaration on Human Rights 84 is not binding, it is highly persuasive and generally reflects State practice. 85 RNM argues that USM could have obtained Mr. Neville in other ways: petitioning the ICJ – by making reference to the ICJ for a resolution – would have been most effective; however, it could have applied to the ICC.86 The ICC must defer to any State, even a nonparty to the treaty, which in good faith investigates and/or prosecutes a crime within its jurisdiction.87 By abducting him, it has acted illegally (i.e. not in ‘good faith’) and this negates its supposed jurisdiction over Mr. Neville.

82

The rule of non-inquiry is that all common law courts previously believed that regardless of how the person arrived at the court they should continue prosecution, making no reference to how they made it there. 83

Declaration on Human Rights Arts 3 &13

84

Ibid. at Art. 3 & 13

85

Human rights are values commonly accepted by States. For instance, the ECHR, which includes the right to freedom and right to living society (Arts 3 &13), has been implemented by all 27 of the EU member states. This indicates that human rights are core values that most States strive to achieve. 86

Rome Statute

87

Supra.fn.54, at p. 465


20 Then in R v. Horseferry88 the court said, “Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted.” This appears to be the view of several states. Mr. Neville was abducted, which taints the proceedings and this makes a conviction unsafe. As per R v Hartley,89 this could be seen as a miscarriage of justice. Further, in R v. Staines,90 it was decided that the applicants should be tried in the U.K. the reason for which is explained in the ratio.91 While it is a fact that there are no existing extradition treaties between any of the states in The Case of North Manconia, there are other forms of ‘extradition’ such as petitioning the ICJ or going through other diplomatic channels available. Failure to use another method to secure legal jurisdiction over Mr. Neville constitutes an unlawful act. The solution to this would be to return Mr. Neville to RNM’s custody. ii. Even in cases where domestic courts have chosen to allow the proceeding to continue they have laid down persuasive criteria which indicates illegal abduction will negate jurisdiction. In Ker v Illinois,92 the main authority from U.S. courts, the U.S. Supreme Court upheld its jurisdiction, stating that the proper remedy for the breach of international law was

88

Horseferry Magistrates Case [1993/4]

89

Regina v Hartley [1978]

90

Staines magistrate’s ex p. Westfallen [1998]

91

Hooper J, at p.666: “If extradition procedures are available to obtain the return from a foreign country of a person wanted for trial or sentence in this country (a wanted person) and that person is deported to this country or via this country, then his trial here would be an abuse of process unless there has been no ‘interaction’ between this country and the foreign country about him.” 92

Ker v Illinois (1886)


21 at the diplomatic level and that the physical presence of the accused before the Court, no matter how he had been brought there, sufficed to validate the proceedings. RNM has taken this step, but considering USM’s record (it has already abducted the applicants’ citizen and refused to return him); an application through the ICJ is required as its decision would be influential and binding. The French case of Re Argoud 93 also followed a similar path, with the French Court of Cassation holding that while the individual could not bring a claim for lack of jurisdiction due to the illegality of the abduction, the injured state had standing to raise the issue.

The

Applicants submit that as RNM has instigated proceedings in court, and USM lacks jurisdiction over Mr. Neville due to its illegal act of abduction, proceedings against him in the domestic courts of USM should be dropped and Mr. Neville be returned to RNM. In the Eichmann case94 the state of Argentina lodged a complaint with the UN Security Council claiming the illegal abduction of Eichmann constituted a violation of its sovereignty and requested appropriate reparation, namely the return of Eichmann, and the punishment of those guilty of violating Argentine territory. The UN Security Council adopted the Security Council Resolution of June 23rd 1960.95 This considered the situation and requested Israel to remedy its actions which undermined State sovereignty and if repeated could cause international friction to peace and security. However, in this case Israel did not return Eichmann and proceeded to use adjudicative jurisdiction to sentence him. In this instance, both States had eventually come to an agreement that Israel could continue with its

93

Re Argoud [1964]

94

Eichmann Case (1962)

95

UN Security Resolution, Doc S/4349


22 prosecution of Eichmann; however the initial use of enforcement jurisdiction was unlawful and should have led to his release. B. When a state has unlawfully interfered in the bringing of the person to its territory for criminal proceedings, its jurisdiction becomes null and void. These cases represent the decisions of courts to make a case null and void where the State’s agents have acted unlawfully to bring a person into its jurisdiction. Article 38 of the ICJ Statute96 makes the use of decisions from domestic courts 97 persuasive in international courts as it allows for use of judgement from high standing courts in all Member States. The House of Lords in Horseferry98 looked at the Extradition Act 198999 and determined, in the absence of an extradition treaty, section 15100 could be used. Lord Griffith said “The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused.” In this case they applied the decision of R v Guilford Justices 101

96

ICJ Statute, Art. 38 (1) (b), (c).

97

See fn. 61 (ICJ statute)

98

Supra. fn.88

99

U.K.’s Extradition Act 1989 s.15

100

Ibid. at s.15: “Where special extradition arrangements have been made in Special respect of a person, extradition procedures shall be available in the case extradition of that person, as between the United Kingdom and the foreign state with arrangements. Which the arrangements have been made, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the arrangements.” 101

R v Guildford Justices [1983]


23 which said that the proper procedure was to follow that of R v Bow Street Magistrates.102 Per this, upon hearing about the way Mr. Neville was brought into the court’s jurisdiction, the courts in USM should have stayed the prosecution and ordered that Mr. Neville be released. British courts have then gone on in R v Staines103 to state that “… if extradition procedures are available to obtain the return from a foreign country of a person wanted for trial or sentence in this country (a wanted person) and that person is deported to this country or via this country, then his trial here would be an abuse of process unless there has been no ‘interaction’ between this country and the foreign country about him.” In this case, following the ruling in Horseferry,104 the courts could have applied s.15 of the Extradition Act as a way to circumvent not having an extradition treaty in place. Other extradition procedures such as visiting diplomatic channels and applications to the ICJ could have been used by USM to gain Mr. Neville lawfully. Rather than such measures of recourse, USM proceeded to use a covert Special Forces operation to abduct Mr. Neville from Orangestan fully aware that this was illegal. In R v Mullen105 the United Kingdom attempted to distance itself from the situation, but seemingly it did so to avoid the rule established by prior cases namely R v Bow street106

102

R v Bow Street ex p. Mackeson: “…the way in which the defendant had been brought to the court does not affect the court’s jurisdiction; however, the courts should use their discretion upon learning of the interference of the British officers in the deportation scheme to prohibit the use of their jurisdiction…” 103

Staines Magistrates Ex p. Westfallen [1998]

104

Supra. fn.88

105

Mullen Case [1999]

106

R v Bow Street ex p. Mackeson [1981]


24 and due to this the conviction was deemed unsafe per the Criminal Appeals Act 1968107 and the case was dismissed. C. USM has violated international law by violating the territorial sovereignty of RNM. The concept of the "territorial sovereignty of States" is a long-standing and wellestablished rule of customary international law, reaffirmed by, inter alia, the Charter of the United Nations.108 The first obligation of a State responsible for the internationally wrongful act is to cease if it is continuing, and to offer appropriate assurances and guarantees of non-repetition. There are different forms of reparation; "restitution" is the most important remedy under international law.109 Hence, USM should stop the unlawful act (abduction) and return Mr. Neville to RNM. Furthermore, it should offer assurances that act will not be repeated. In the United States v Toscanino case,110 it was held the abduction violated two treaties; the United Nations Charter and the Organization of American States Charter, which require the United States to respect the territorial sovereignty of Uruguay. It also held that a US court must "divest itself of jurisdiction over the person of a defendant where it had been acquired as a result of the government's deliberate and unreasonable invasion of the accused's constitutional rights�.111

107

U.K.’s Criminal Appeals Act, 1968 s. 2 (1) (a)

108

UN Charter Art. 2 (4)

109

The general rule is that a State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed. 110

United States v Toscanino (1975)

111

Ibid.


25 It is submitted that all domestic courts, being organs of the State, must refrain from exercising jurisdiction over individuals seized or abducted by means which are in violation of international law. It would be a further international wrong for the courts of the abducting State to try and prosecute an individual who has been illegally abducted. RNM argues that USM has breached several treaties, which violates their international law obligations; therefore, should the Tuscanino decision be followed, USM must release itself of jurisdiction over Mr. Neville due to the invasion on Mr. Neville’s right’s afforded to him by virtue of the Universal declaration on human rights.112

(I) Submissions For the above reasons the Republic of Manconia respectfully requests the court to adjudge and declare that: a) USM lacks jurisdiction over the alleged acts of Mr. Neville, which were committed outside

USM territory and did not involve USM nationals; b) USM has violated the immunity from criminal jurisdiction of Mr. Neville, a serving

Minister in the RNM government; c) The Courts of USM lack jurisdiction over Mr. Neville because he was illegally abducted

from a foreign State.

Respectfully submitted,

Agents of the Applicant

112

Declaration on Human Rights Arts. 3 &13

Telders International Law Moot: Applicant Memorial  

Applicant memorial