Memorial 3

8/10/2019 Memorial 3

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2011-2012

Niagara International Moot Court Competition

A Dispute Arising Under the

Statute of the International Court of Justice

February, 2012

THE GOVERNMENT OF THE UNITED STATES

(Applicant)

v.

THE GOVERNMENT OF CANADA

(Respondent)

MEMORIAL OF THE RESPONDENT

TEAM#: 2012-07R


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TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................................................... iii

JURISDICTIONAL STATEMENT ........................................................................................................v

QUESTIONS PRESENTED................................................................................................................ vi

STATEMENT OF FACTS................................................................................................................. vii

SUMMARY OF ARGUMENT...............................................................................................................1

ARGUMENT......................................................................................................................................2

I. CANADAS INTERVENTION INTO TANGOON WAS LAWFUL UNDER INTERNATIONAL

LAW .....................................................................................................................................2

A. CANADAS INTERVENTION WAS LAWFULLY CONSISTENT WITH SAMUTRAS

REQUEST FOR ASSISTANCE UNDER ARTICLE 51OF THE U.N.CHARTER..................3

B. CANADAS INTERVENTION WAS LAWFUL BECAUSE IT WAS DONE PURSUANT

TO THE GENERAL ASSEMBLYS AUTHORIZATION TO INTERVENE,WHICH WAS

ADOPTED UNDER ITS UNITING FOR PEACEAUTHORITY AND THE

RESPONSIBILITY TO PROTECT DOCTRINE...................................................................5

1. THIS COURT SHOULD RECOGNIZE THE RESPONSIBILITY TO PROTECT

DOCTRINE AS CUSTOMARY INTERNATIONAL LAW...............................................8

2. CANADAS ACTIONS WERE CONSISTENT WITH THE RESPONSIBILITY TO

PROTECT DOCTRINE...............................................................................................9

II. CANADAS APPREHENSION,DETENTION,AND PROPOSED SURRENDER TO THE ICCOF ISHMAEL BALTHASAR AND CLYDE BARRETT ARE LAWFUL UNDER

INTERNATIONAL LAW.......................................................................................................10

A. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED HEINOUS

INTERNATIONAL CRIMES OF GENOCIDE AND CRIMES AGAINST HUMANITY

POINT ONE....................................................................................................................10

1. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED THE CRIME

OF GENOCIDE........................................................................................................10

2. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED CRIMES

AGAINST HUMANITY.............................................................................................11

B. CANADA LAWFULLY EXERCISED JURISDICTION TO PUNISH PERPETRATORS

OF CRIMES AGAINST HUMANITY AND GENOCIDE....................................................12

1. MILITARY FORCE WAS LAWFUL TO FACILITATE THE ARREST AND

DETENTION OF ISHMAEL BALTHASAR AND CLYDE BARRETT............................12


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2. THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER

ISHMAEL BALTHASAR AND CLYDE BARRETT......................................................14

3. THE GENOCIDE CONVENTION PROVIDES UNIVERSAL JURISDICTION................15

4. CANADAS OWN LEGISLATION PROVIDES UNIVERSAL JURISDICTION..................16

C. THERE IS NO HEAD-OF-STATE IMMUNITY AVAILABLE FOR ISHMAEL

BALTHASAR. ................................................................................................................17

1. CANADAS OWN LEGISLATION PROVIDES UNIVERSAL JURISDICTION..................17

2. BOTH THE ICCAND GENOCIDE CONVENTION EXPLICITLY PROHIBIT

HEAD-OF-STATE IMMUNITY.................................................................................18

CONCLUSION .................................................................................................................................18


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TABLE OF AUTHORITIES

INTERNATIONAL TREATIES,INSTRUMENTS &DOCUMENTS

2005 World Summit Outcome, G.A. Res. 60/1, U.N. Doc. A/RES/60/1, at 138-39(Oct. 24, 2005) .............................................................................................................................2, 9

A More Secure World: Our Shared Responsibility, Report of the High-Level Panel onThreats, Challenges and Change, UN Doc. A/59/565 (2004)....................................................8, 10

Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,78 U.N.T.S. 277 .......................................................................................................................16, 18

G.A. Res. 377(V), U.N. Doc. A/1775 (Nov. 3, 1950). ....................................................................6

G.A. Res. 3314 (XXIX), U.N. GAOR, 29th Sess., Supp. No. 31, art. 3(b) U.N. Doc.A/9631 (Dec. 14, 1974) ...................................................................................................................4

The Hague Convention (IV) Respecting the Laws and Customs of War on Land and ItsAnnex: Regulations Concerning the Laws and Customs of War on Land, 18 October1907..................................................................................................................................................4

International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 .......12, 13

Intl Commn on Intervention and State Sovereignty, The Responsibility to Protect:Report of the International Commission on Intervention and State Sovereignty, at VIII(2001) .....................................................................................................................................8, 9, 10

North Atlantic Treaty art. 5, Apr. 4 1949, 63 Stat. 2241, 34 U.N.T.S. 243 .....................................3

Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S 3 ..............passim

S.C. Res. 1674 (Apr. 28, 2006). .......................................................................................................9

U.N. Charter .............................................................................................................................2, 3, 6

INTERNATIONAL CASE LAW

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986I.C.J. 14 (June 27) ....................................................................................................................2, 3, 4

Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 189, 195, 57, 71 (Nov. 6) ....................................4

The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),2002 I.C.J. 3 (Feb. 14) ...................................................................................................................17

DOMESTIC AUTHORITY

Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 (Can.) .....................................17


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U.S. v. Noriega, 117 F.3d 1206 (11thCir. 1997) ............................................................................18

SECONDARY MATERIALS:ARTICLES

Annie Wartaninan, The ICC Prosecutors Battlefield: Combating Atrocities WhileFighting for States Cooperation Lessons from the U.N. Tribunals Applied to the Case of

Uganda, 36 Geo. J. Intl L. 1289 (2005) .......................................................................................14

Carsten Stahn,Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?,101 A.J.I.L. 99, 99-100 (2007) ........................................................................................................9

Michael P. Scharf, The ICCs Jurisdiction Over the Nationals of Non-Party States: ACritique of the U.S. Position, 64-WTR Law & Contemp. Probs. 67 (2001) ...........................14, 15

R.Y. Jennings, The Caroline and McLeod Cases, 32 Am. J. Int'l L. 82 (1938) ..............................3

SECONDARY MATERIALS:OTHER

Restatement (Third) of Foreign Relations 102 (1987) ......................................................8, 12, 13

BOOKS

Compromis.............................................................................................................................passim

MALCOLMN.SHAW, INTERNATIONAL LAW1123 (Cambridge University Press, 6th ed.2008) ........................................................................................................................................2, 3, 6


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JURISDICTIONAL STATEMENT

Canada and the United States of America have agreed to submit this dispute to the

International Court of Justice Pursuant to Article 40(1) of the Statute of the International Court

of Justice and in accordance with the Compromis notified to the Court on August 29, 2011.

Pursuant to Article 36(1) of the Statute, the Court has jurisdiction to decide all matters referred to

it for decision. The parties have agreed to implement the decision of the Court.


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STATEMENT OF FACTS

Tangoon and Samutra

Tangoon and Samutra are located on the island of Tanmutra, a 1,000 square kilometer

island, which is located just south of the equator in the Pacific Ocean. Each country is composed

of ethnic Tanmutrans, an ancient people who settled on the island over a thousand years ago. In

1990, Tanmutra split into two separate and independent States. A faction of Tanmutrans, led by

the Tanmutran High Priest, Raffiiki Balthasar, seized control of the mountainous, western

portion of the island. This Faction declared the creation of the State now called Tangoon, and

erected a twenty-foot high border wall dividing the island in two. Although Raffiiki Balthasar is

the current head of State, his younger Brother Ishmael Balthasar is Tangoons current de facto

political and military leader.

The Demon Mine and Demonville

In 2007, a rich deposit of cobaltite was discovered on the north face of Mont Demon,

Tangoons largest peak. In August 2007, Ishmael Balthasar granted the U.S. incorporated

Geomin Corp. an exclusive twenty-year license to mine and process the cobaltite/cobalt from

Mont Demon for export to the United States. Clyde Barrett, the CEO and chief geologist of

Geomin Corp. moved to Tangoon to oversee the mining operation.

Before the cyclone, Demonville was Tangoons largest village and was located on the

lower elevations of the southern face of Mont Demon. In January 2011, geologists from Geomin

Corp. discovered that Demonville was situated directly on top of a second extremely rich

cobaltite vein. Geomin Corp. offered to purchase the land from the villages, but the residents

declined to sell.


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On April 15, 2011, Barrett met with Balthasar to discuss establishing a second mine at

the Demonville location. Balthasar took extensive notes of the meeting. According to these

notes, Barrett urged Balthasar to forcibly relocate the Demonville residents. In return, Barrett

promised to increase the annual licensing fee to the Tangoon regime by $50 million. Barrett

urged Balthasar to burn them out if you have to. Balthasar agreed to the deal, stating that he

would find a way to get rid of those godless villagers for Geomin Corp. Balthasar added,

however, that he had to bide his time since the Tangoon army was not powerful enough to

forcibly evict 14,000 villagers.

The Tropical Cyclone

On May 23, 2011, Balthasar and Barrett had another meeting. At this meeting, Barrett

provided Balthasar with weather reports of an approaching tropical cyclone and suggested that

the storm could provide the opportunity that Balthasar was waiting for. On May 25, 2011, a

tropical cyclone swept through the area of the Pacific Ocean where Samutra and Tangoon are

located. The Tangoon Regime did nothing to warn the civilian population of Tangoon about the

oncoming storm. The island was battered with 160 mph winds, over 40 inches of rain, and

waves as high as 20 feet. Roughly 80 percent of Tangoons residential structures and nearly all

of its fishing boats were destroyed. Additionally, tens of thousands of corpses were observed

floating in the streams, rivers and lakes of Tangoon,. Most of Tangoons surviving population

was rendered homeless and without potable drinking water.

The Humanitarian Intervention

On May 30, 2011, the UN Secretary General issued a report on the situation in Tangoon,

where he urged to the Security Council to act without delay to authorize humanitarian

intervention into Tangoon. That same day, Samutra requested an emergency session of the U.N.


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Security Council. The Security Council met and circulated a draft resolution which would have

authorized a coalition of the willing to use all necessary means to enter Tangoon and deliver

vital humanitarian aid and to take steps to prevent the spread of disease. After the United States

indicated that it would veto the resolution if it was brought to a vote, The Security Council

adjourned.

On June 2, 2011, the U.N. General Assembly adopted Resolution A/RES/65/299.

Through this Resolution, the General Assembly condemned the actions of Tangoon and

recommended that States in coordination with Samutra employ all necessary means to deliver

humanitarian aid to the people of Tangoon. In passing this resolution, the General Assembly

pointed to its uniting for peace authority and the responsibility to protect doctrine. Pursuant to

the General Assemblys recommendation, Canada intervened in Tangoon on June 3, 2011.

On June 7, 2011, Canadian commandos employed explosives to demolish the wall

separating Tangoon and Samutra. In an attempt to distribute food, clothing, medicine, and

temporary shelters to survivors, Canada entered with 120 armed Canadian commandos

accompanying 500 medical and relief workers in 100 appropriately marked aid trucks. Upon

breaking through the barricade, Tangoon security personnel fired upon the Canadian forces.

Canada returned fire and ultimately took seven security personnel into custody including Ishmael

Balthasar and his incriminating diary. After a brief period, Canadian commandos came upon a

blasting and excavation operation in Demonville belonging to Geomin Corp. Upon discovering

teenage Tangoon workers suffering from conditions of slave-labor, Canadian commandos shut

down the operation. After confirming the identity of Clyde Barrett and his involvement in the

operation, commandos took him into custody and transported Ishmael Balthasar and him to their

ship, the HMCSAlgonuin, docked at the Port of Samutra.


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SUMMARY OF ARGUMENT

The Tangoon regime took advantage of a natural disaster. In doing so, Tangoon

perpetrated an intentional biological attack on both its people and the people of neighboring

Samutra. Canadas actions were performed at the requests of the General Assembly and

Samutra, and were consistent with international law.

Canadas intervention into Tangoon was lawful under Article 51 of the U.N. Charter and

the inherent right of collective self defense. Specifically, Canada exercised its inherent right to

defend Samutra from a purposeful biological assault on its territory and citizens. Additionally,

Canadas intervention was lawful under the General Assemblys recommendation to intervene as

contained in Resolution A/RES/65/299, which was adopted under its Uniting for Peace

authority and the responsibility to protect doctrine.

Canadas apprehension, detention and proposed surrender to the ICC of Ishmael

Balthasar and Clyde Barrett are lawful under international law because of the grave nature of the

crimes they committed. Both Ishmael Balthasar and Clyde Barrett committed genocide as well

as crimes against humanity. Accordingly, these men are subject to jurisdiction because of both

the territorial jurisdiction of Samutra to submit the situation to the ICC prosecutor and the

customary international law principle of universal jurisdiction present in the Rome Statute,

Genocide Convention, and Canadas War Crimes and Crimes Against Humanity Act. The use

of military force to arrest and detain Balthasar and Barrett was lawful because there are no

conventions that indicate it is a violation of international law. In addition, historical practices

demonstrate that military force is the most effective method for bringing perpetrators of genocide

and crimes against humanity to justice. No immunities exist for either individual because de


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facto head-of-state immunity is insufficient and any immunity is prohibited by the Genocide

Convention and Rome Statute.

ARGUMENT

I. CANADAS INTERVENTION INTO TANGOON WAS LAWFUL UNDER INTERNATIONAL

LAW.

Generally, traditional international law prohibits States from using force against other

States1or intervening in the internal affairs of other States.2 Despite these general prohibitions,

there are legal exceptions that are either recognized as customary international law or are

emerging legal norms that this Court should recognize as customary international law. When

met, these exceptions justify the use of force and intervention.3 Two such justifications are

known as the right of collective self-defence4and the responsibility to protect doctrine.5

Canadas intervention into Tangoon was lawful for two reasons. First, Canadas actions

were consistent with Article 51 of the U.N. Charter and the inherent right of collective self

defense. Specifically, Canada intervened at the request of Samutra with the expressed and

limited purpose of defending Samutra from a purposeful biological assault on its territory and

citizens by the Tangoon Regime.6 Second, Canadas actions were consistent with the General

1U.N. Charter art. 2, 4; seeMALCOLMN.SHAW, INTERNATIONAL LAW1123 (CambridgeUniversity Press, 6th ed. 2008).

2Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14,106, 202 (June 27) [hereinafterNicaragua Case].

3See SHAW, supranote 1, at 1121-22, 1131-35, 1155-58.

4U.N. Charter, supranote 1, at art. 51.

5See2005 World Summit Outcome, G.A. Res. 60/1, U.N. Doc. A/RES/60/1, at 138-39 (Oct.24, 2005) [Hereinafter 2005 World Summit Outcome Document].

6Compromis, 16, Tab 3.


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Assemblys recommendation to intervene as contained in Resolution A/RES/65/299, which was

adopted under its Uniting for Peace authority and the responsibility to protect doctrine.7

A. CANADAS INTERVENTION WAS LAWFULLY CONSISTENT WITH SAMUTRAS REQUEST

FOR ASSISTANCE UNDER ARTICLE 51OF THE U.N.CHARTER.

Article 51 of the U.N. charter provides that Nothing in the present Charter shall impair

the inherent right of collective self-defense if an armed attack occurs against a member of the

United Nations.8 In theNicaraguaCase, this Court recognized the right of a State to use

collective self-defense as customary law.9 This Court further recognized the right of a third State

to use collective self-defense for the benefit of a victim State. 10

In 1841, the U.S. Secretary of State famously defined self-defense subsequent to the

incident that later became known as the Caroline Case.11 For a State to act in self-defense there

needed to be a necessity of self-defense that was instant, overwhelming, leaving no choice of

means, and no moment for deliberation.12 Furthermore, the action taken in pursuance of self-

defense must be limited by that necessity and not unreasonable or excessive.13 These

essentials of self-defense have been accepted as customary international law.14

7Id.at 15, Tab 2-3.

8U.N. Charter, supranote 1, at art. 51.

9Nicaragua Case, supra note 2, at 126, 246; SHAW, supra note 1, at 1146-47.

10Nicaragua Case, supra note 2, at 104-05, 196-98; seeNorth Atlantic Treaty art. 5, Apr. 41949, 63 Stat. 2241, 34 U.N.T.S. 243.

11SHAW, supra note 1, at 1131; see R.Y. Jennings, The Caroline and McLeod Cases, 32 Am. J.Int'l L. 82 (1938).

12SHAW, supra note 1, at 1131.

13Id.

14Id.


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It was later clarified by this Court that in order for a State to resort to the use force in self-

defense, it must be able to demonstrate that it has been the victim of an intentional, armed

attack.15 Furthermore, in order for a State to exercise its right of collective self-defense for the

benefit of a victim State, the victim State must have made a declaration that it was the victim of

an armed attack and that it requested assistance.16

This Court noted in theNicaragua Casethat There appears now to be general agreement

on the nature of the acts which can be treated as constituting armed attacks.17 Furthermore, in

establishing what constitutes an armed attack, this Court relied on Article 3 of the Definition of

Aggression annexed to General Assembly resolution 3314 (XXIX) as a reflection of customary

international law.18 The resolution states, in part, that the use of any weapons by a State against

the territory of another State qualifies as an act of aggression.19 Furthermore, biological

weapons and biological war tactics (such the practice of poisoning a States water supply) have

historically been recognized as acts of aggression.20

In the present case, Samutra was able to demonstrate that it had been the victim of an

intentional biological attack. While it is true that the Tangoon regime did not cause the cyclone,

15Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 189, 195, 57, 71 (Nov. 6); SHAW, supra note1, at 1133.

16Nicaragua Case, supra note 2, at 103, 195.

17Id.

18Id.

19G.A. Res. 3314 (XXIX), U.N. GAOR, 29th Sess., Supp. No. 31, art. 3(b) U.N. Doc. A/9631(Dec. 14, 1974).

20See The Hague Convention (IV) Respecting the Laws and Customs of War on Land and ItsAnnex: Regulations Concerning the Laws and Customs of War on Land, 18 October1907.


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it is also true that the regime took advantage of the resulting devastation.21 The Tangoon regime

intentionally left thousands of rotting corpses in its lakes, rivers and streams knowing that the

contaminated water would cause illness among its people and the people of Samutra.22 The

regime did so with the purpose of cleansing the island of those who did not adhere to the ultra-

orthodox form of the Tanmutran religion.23

Shortly after Samutra made this discovery, it requested assistance from the Security

Council on June 1, 2011; from the General Assembly on June 2, 2011, and finally from Canada

on date June 3, 2011.24 On June 7, 2011, Canada answered Samutras calls for help by

intervening in Tangoon.

25

Canadas immediate intervention was absolutely necessary due to the

rapid spread of disease and the expectation that thousands more would die unless immediate

action was taken.26 Finally, in addition to being necessary, Canadas intervention was limited by

that necessity and was not unreasonable or excessive. Canada entered Tangoon with the limited

purpose of disposing of the decomposing corpses and providing humanitarian aid.27

B. CANADAS INTERVENTION WAS LAWFUL BECAUSE IT WAS DONE PURSUANT TO THE

GENERAL ASSEMBLYS AUTHORIZATION TO INTERVENE,WHICH WAS ADOPTED

UNDER ITS UNITING FOR PEACEAUTHORITY AND THE RESPONSIBILITY TO

PROTECT DOCTRINE.

21SeeCompromisat 10, 12, Tab 1.

22See Id. at Tab 1.

23Id.

24See Id.at 12-16.

25Id. at 17.

26Id. at 12.

27Id. at Tab 3.


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Under the U.N. Charter, the Security Council has the primary responsibility for the

maintenance of international peace and security.28 Specifically, the Security Council may take

such action by air, sea, or land forces as may be necessary to maintain or restore international

peace and security.29 A decision by the Security Council to authorize the use force must be

made by an affirmative vote of nine members including the concurring votes of the [five]

permanent members.30 Any one of the five permanent members may vote down a proposed

resolution authorizing the use of force.31

It was largely the use of this veto power by the permanent members that led to a

perception of the reduced effectiveness of the Security Council.

32

This perception led the

General Assembly to adopt the Uniting for Peace resolution, which was based on the view that

the General Assembly had a secondary responsibility for the maintenance of peace and

security.33 On November of 1950, the General Assembly adopted Resolution 377(V).34 The

Resolution states:

if the Security Council, because of lack of unanimity of thepermanent members, fails to exercise its primary responsibility forthe maintenance of international peace and security in any casewhere there appears to be a threat to the peace, breech of the peace,or act of aggression, the General Assembly shall consider thematter immediately with a view to making appropriate

28U.N. Charter, supranote 1, at arts. 23-25, 28, 39, 42.

29Id.at art. 42.

30Id.at art. 27 (3).

31Id.

32SHAW, supra note 1, at 1271.

33Id.at 1272.

34G.A. Res. 377(V), U.N. Doc. A/1775 (Nov. 3, 1950).


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community of states.40 Tangoon failed its responsibility to protect its people. Whether the

emerging norm known as the responsibility to protect is customary international law is an issue

of first impression before this Court.

1. THIS COURT SHOULD RECOGNIZE THE RESPONSIBILITY TO PROTECT DOCTRINE ASCUSTOMARY INTERNATIONAL LAW.

A rule of international law may be one that has been accepted by the international

community of states in the form of customary law, which results from [1] a general and

consistent practice of states followed by them from [2] a sense of legal obligation.41 The

practice of states may include diplomatic acts and instructions as well as public measures

and official statements of policy.42 In order for a practice to be considered customary law, it

must be general and consistent, meaning the practice reflects a wide acceptance among the

states particularly involved in the relevant activity.43 Furthermore, for a practice to become

customary international law, it must appear that the states follow the practice from a sense of

legal obligation (opinio juris sive necessitatis).44

The responsibility to protect doctrine is a widely accepted emerging norm.45 The

responsibility to protect doctrine was first articulated in the 2001Responsibility to Protect

40 Intl Commn on Intervention and State Sovereignty, The Responsibility to Protect: Report ofthe International Commission on Intervention and State Sovereignty, at VIII (2001) [hereinafter2001 Responsibility to Protect Report].

41Restatement (Third) of Foreign Relations 102 (1987).

42Id. at cmt. b.

43Id.at cmt. b.

44Id.at cmt. c.

45A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats,Challenges and Change, UN Doc. A/59/565 (2004) [hereinafter 2004 High-level Panel Report].


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Reportby The International Commission on Intervention and State Sovereignty.46 In 2004, the

responsibility to protect doctrine was the subject of discussion in the UN High Level Panel on

Threats, Challenges and Change.47 The Report of the High-Level Panel noted a growing

acceptance among the international community that when Governments, which have the

primary responsibility to protect their own citizens, are unable or unwilling do so, that

responsibility should be taken up by the wider international community.48 In March of 2005,

Secretary General issued a report, which embraced the growing norm of a collective

responsibility to protect.49 In September of that same year, the responsibility to protect doctrine

was articulated and accepted in the World Summit Outcome Document.

50

Finally, in 2006, the

Security Council reaffirmed the responsibility to protect doctrine in resolution 1674.51

2. CANADAS ACTIONS WERE CONSISTENT WITH THE RESPONSIBILITY TO PROTECT

DOCTRINE.

The 2001Responsibility to ProtectReportJust Cause and the 2004High-Level Panel

Reportarticulated roughly five criteria of legitimacy for interventions and the use of force: (1)

just cause; (2) and proper purpose; (3) last resort; (4) proportional means; and (5) a reasonable

462001 Responsibility to Protect Report, supranote 40, at VIII.

472004 High-level Panel Report, supra note 45, at 201-202.

48Id.; see Carsten Stahn,Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?,101 A.J.I.L. 99, 99-100 (Jan. 2007).

49In Larger Freedom: Towards Development, Security and Human Rights for All, Report of theSecretary-General, UN Doc. A/59/2005, 16-22 (2005).

502005 World Summit Outcome, GA Res. 60/1, U.N. Doc. A/RES/60/1, at 138-39 (Oct. 24,2005).

51SC Res. 1674, 4 (Apr. 28, 2006).


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prospect of success.52 Canadas intervention was justified and was done with the proper purpose

to avert the threat of a widespread disease. Furthermore, Canadas intervention was small in

scale and only had a reasonable likelihood of because of the seriousness of Tangoons actions.

II. CANADAS APPREHENSION,DETENTION,AND PROPOSED SURRENDER TO THE ICCOF

ISHMAEL BALTHASAR AND CLYDE BARRETT ARE LAWFUL UNDER INTERNATIONAL

LAW.

Using the International Criminal Courts definitions of genocide and crimes against

humanity, both Ishmael Balthasar and Clyde Barrett have committed these heinous crimes.

Accordingly, Canada is lawful under international law in bringing these individuals to justice on

the customary international law principle of universal jurisdiction present in the Rome Statute of

the International Criminal Court (ICC), the Genocide Convention, and Canadas own Crimes

Against Humanity and War Crimes Act. There should be no applicable head-of-state immunity

because the Genocide Convention and Rome Statute specifically prohibit the defense and a de

facto leader does not enjoy this protection.

A. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED HEINOUS INTERNATIONAL

CRIMES OF GENOCIDE AND CRIMES AGAINST HUMANITY.

1. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED THE CRIME OF GENOCIDE.

The definition for genocide provided by the Rome Statute of the ICC provides the best

definition because of its broad international acceptance. Article 6 defines genocide to mean any

of the following acts committed with intent to destroy, in whole or in part, a national, ethnical,

racial or religious group.53 Acts covered by the definition include both killing members of the

52Responsibility to Protect Report, supranote 40, at 4.32-4.43; 2004 High-level PanelReport, supra note 45, at 201-202.

53Rome Statute of the International Criminal Court art. 6, July 17, 1998, 2187 U.N.T.S. 3[hereinafter Rome Statute].


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group as well as deliberately inflicting conditions calculated to bring about physical destruction

of the group. 54 The religious group targeted by Balthasar and Barrett were the non-elites of

Tangoon who are subjected to some of the worst living conditions on the planet while the elites

live in lavish mountain-top temple compounds. 55

Balthasar and Barrett affirmatively acted in two ways that constitute the commission of

genocide. First, they conspired together to concoct a plan to rid of non-elites living in the town

of Demonville.56 Barrett encouraged Balthasar to forcibly relocate these non-elites through

burning them out if necessary with the promise of increased license fees to the Tangoon

regime.

57

Balthasar agreed to their plan and demonstrated his specific intent to commit genocide

by stating he would get rid of those godless villagers.58 Following through on their intentions,

Tangoon authorities did nothing to notify the Tangoon civilian population of the imminent

danger posed by a severe tropical cyclone that ultimately left tens of thousands of corpses.59

Second, Balthasar and Barrett ensured their genocidal rampage would continue by denying all

aid offered.60

2. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED CRIMES AGAINST

HUMANITY.

54Id.

55Compromis, at 7.

56Id. at 10.

57Id.

58Id.

59Idat 11-12.

60Idat 12.


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Article 7 of the Rome Statute defines crimes against humanity as any of the following

acts when committed as part of a widespread or systematic attack directed against any civilian

population.61 Acts covered include enslavement and extermination which includes the

intentional infliction of life conditions that would bring about destruction of part of a

population.62 Balthasar and Barrett have committed both of these acts by fostering conditions of

slave labor and willfully refusing to make the civilian population aware of the cyclone that

would bring about the destruction of a substantial part of the population.63

B. CANADA LAWFULLY EXERCISED JURISDICTION TO PUNISH PERPETRATORS OF

CRIMES AGAINST HUMANITY AND GENOCIDE.

1. MILITARY FORCE WAS LAWFUL TO FACILITATE THE ARREST AND DETENTION OF

ISHMAEL BALTHASAR AND CLYDE BARRETT.

According to the Restatement of Foreign Relations, none of the international human

rights conventions to dateprovides that forcible abduction or irregular extradition is a violation

of international human rights law.64 It may be argued that extra-territorial is in violation of the

International Covenant on Civil and Political Rights (ICCPR). 65. This argument falls short

because that convention specifically protects against arbitrary arrest or detention.66 Canada

has not made an arbitrary arrest or detention because they discovered teenage Tangoon workers

61Rome Statute, supranote 53, art. 7.

62Id.

63Compromisat 11-12.

64Restatement (Third) of Foreign Relations Law of the United States, 432 (1987).

65International Covenant on Civil and Political Rights art. 9(1), Dec. 16, 1966, 999 U.N.T.S. 171[hereinafter ICCPR].

66Id.


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engaged in excavation suffering from conditions of slave-labor.67 Further, ensuring they werent

arresting the wrong individuals, they verified the identity and authority of Clyde Barrett as well

as Ishmael Balthasar.68

In addition, Tangoon was in direct violation of their duties under Article 8 of the ICCPR

by requiring compulsory labor of children in its National Service Program.69 This willful

disregard and failure to correct the violation justifies the actions of Canada. The Restatement of

Foreign Relations clarifies, how a state treats individual human beings, including its own

citizens, in respect of their human rights, is not the states own business alonebut is a matter of

international concern.

70

Article 5 of the ICCPR makes it clear that nothing in the convention

can be interpreted as implying any right to engage in any activity aimed at the destruction of the

rights recognized. 71 Because Tangoon was destroying recognizable rights under the ICCPR, the

international concern presented by conditions clearly demonstrating slave-labor justifies the

arrest and detention of responsible individuals.

Prior history shows that in cases of grave international concern, there are sometimes no

other measures capable of promoting justice. In respect to the atrocities in the former

Yugoslavia, statistics show that twenty-one out of forty-six indictees in the custody of the

International Criminal Tribunal for the former Yugoslavia were detained by international

67Compromisat 19.

68Id.at 18-19.

69IICPR, supranote 65, art. 8(3)(a).

70Restatement (Third) of Foreign Relations Law of the United States, part VII, intro. note(1987).

71IICPR, supranote 65, art. 5.


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military forces.72 Several NGOs have criticized the Tangoon court system for its lack of

independence from regime leaders which demonstrates that the only method for bringing these

individuals to justice was the use of military force to arrest and detain.73

2. THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER ISHMAEL

BALTHASAR AND CLYDE BARRETT.

The first basis upon which the ICC has jurisdiction over these individuals is through the

customary international law principle of universal jurisdiction. Universal jurisdiction provides

jurisdiction over a limited category of offenses that are recognized as a universal concern without

regard to the location of the offense, the nationality of the perpetrator, or the nationality of the

victim.74 This principle is recognized in the pre-amble to the Rome Statute of the ICC where it

is made clear that such grave crimes threaten the peace, security, and well-being of the world.

75 Further, the pre-amble claims it is the duty of every State to exercise its criminal jurisdiction

over those responsible for international crimes.76 Both of these statements demonstrate that

historically the ICC has been recognized as a body exercising universal jurisdiction over certain

crimes. In fact, no one at the Rome Diplomatic Conference disputed that the core crimes under

ICC jurisdiction were subject to the customary international law principle of universal

72Annie Wartanian, The ICC Prosecutors Battlefield: Combating Atrocities While Fighting forStates Cooperation Lessons from the U.N. Tribunals Applied to the Case of Uganda , 36 Geo. J.Intl L. 1289, 1309 (2005).

73Compromisat 7.

74Michael P. Scharf, The ICCs Jursidiction Over the Nationals of Non-Party States: A Critique

of the U.S. Position, 64-WTR Law & Contemp. Probs. 67, 74 (2001).

75Rome Statute, supra 53, pre-amble.

76Id.


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jurisdiction.77Several trials carried out in the aftermath of the Second World War for atrocities

committed extended and demonstrated that international tribunals could exercise universal

jurisdiction for crimes against humanity.78 Because of the gravity of the genocide and crimes

against humanity committed by Ishmael Balthasar and Clyde Barrett, they should be subject to

the universal jurisdiction of the ICC as embodied in its pre-amble.

Beyond the universal jurisdiction provided to the ICC, there is also territorial jurisdiction

granted by Articles 13 and 14 of the Rome Statute. Article 14 allows any state that is party to the

Rome Statute to refer to the Prosecutor a situation in which one or more crimes within the

jurisdiction of the Court appear to have been committed.

79

The ICC, then, may exercise

jurisdiction over that referral under Article 13(a).80 This exercise of jurisdiction, however is

limited by Article 12(2)(a) in that jurisdiction if only appropriately exercised if The State on the

territory of which the conduct in question occurred is a party to the ICC.81 Here, these

requirements are met because Samutra, a party to the Rome Statute of the ICC referred the

situation to the ICC prosecutor and the crimes against humanity occurred on both the territory of

Tangoon and Samutra killing citizens of both nations with widespread disease.

3. THE GENOCIDE CONVENTION PROVIDES UNIVERSAL JURISDICTION.

77Scharf, supra note 74, at 77.

78Id., at 81.

79Rome Statute, supranote 53, art 14.

80Rome Statute, supranote 53, art.13.

81Rome Statute, supra note 53, art. 12.


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Universal jurisdiction can also be found on the basis of the Genocide Convention, which

Tangoon is a party to.82 As a party to the convention, under Article 1, Tangoon confirms that

genocide, whether committed in time of peace or in time of war, is a crime under international

law which they undertake to prevent and to punish.83 The Genocide Convention explicitly

states that the actions taken by Ishmael Balthasar and Clyde Barrett, while too late for

prevention, are to be punished. Article V of the convention further stipulates that parties are

obligated to provide effective penalties for persons guilty of genocide.84 In this situation,

Tangoon has utterly failed at following its obligations under the Genocide Convention.

As provided by Article I, all parties to the convention which includes Canada, must

undertake to punish the crime of genocide. As previously noted, Tangoon courts are in no

position to effectively punish these perpetrators of genocide because of their lack of

independence from the ruling regime. Thereby, it is the obligation of Canada and all other states

to punish Ishmael Balthasar and Clyde Barrett for their heinous crime and Canada may exercise

its jurisdiction.

4. CANADAS OWN LEGISLATION PROVIDES UNIVERSAL JURISDICTION.

Genocide and crimes against humanity have been characterized as crimes that allow for

universal jurisdiction which means that any state has jurisdiction to define and prescribe

punishment for those crimes.85 Canada has passed its own legislation that grants universal

82Compromisat 4.

83Convention on the Prevention and Punishment of the Crime of Genocide art. I, Dec. 9, 1948,78 U.N.T.S. 277 [hereinafter Genocide Convention].

84Id.at art. V.

85Restatement (Third) of Foreign Relations Law of the United States, 404 (1987).


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jurisdiction and implement(s) the Rome Statute of the International Criminal Court.86 Named

the Crimes Against Humanity and War Crimes Act, section 6 provides that every person

whocommits outside Canada, (a) genocide, (b) a crime against humanityis guilty of an

indictable offence.87 Section 8 provides that person may be prosecuted for that offence if at the

time of offence the person was a citizen of a state that was engaged in an armed conflict against

Canada or was employed in a civilian capacity by such a state.88 When Canada intervened,

Tangoon security personnel opened fire on Canadian forces.89 This conflict amounts to an

armed conflict under the Crimes Against Humanity and War Crimes Act and brings both Ishmael

Balthasar and Clyde Barrett under the jurisdiction of Canada, where they then may direct the

surrender to the ICC.

C. THERE IS NO HEAD-OF-STATE IMMUNITY AVAILABLE FOR ISHMAEL BALTHASAR.

1. ISHMAEL BALTHASAR DOES NOT HOLD ATITLE ANALOGOUS TO HEAD OF STATE.

In customary international law, immunities are sometimes granted to heads of state to

ensure the effective performance of their functions.90 These immunities can extend to heads of

states, diplomatic agents, and ministers of foreign affairs.91 However, the immunities do not

extend to Ishmael Balthasar because he holds none of those titles. Instead, Ishmael Balthasar

86Crimes Against Humanity and War Crimes Act, pre-amble, S.C. 2000, c. 24 (Can.).

87Id.at 6.

88Id.at 8.

89Compromisat 18.

90The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.Belgium), 2002 I.C.J. Rep. 3 at 49.

91Id.at 47.


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holds the title of Minister of Internal Affairs.92 It could be argued that Balthasar was acting as

the de facto head of state, but this argument should not provide him immunity. The United

States has explicitly rejected the argument that a de facto leader can be subject to head-of-state

immunity because other States dont necessarily recognize a de factor leader.93

2. BOTH THE ICCAND GENOCIDE CONVENTION EXPLICITLY PROHIBIT HEAD-OF-STATE

IMMUNITY.

A definitive reason that there should be no head-of-state immunity granted in this

situation is that both the Rome Statute and Genocide Convention explicitly prohibit its

application. First, article 27 of the Rome Statute indicates it applies equally to all persons

without any distinction based on official capacityofficial capacity as a Head of Stateshall in

no case exempt a person from criminal responsibility.94 The language of the Rome Staute

clearly articulates that certain immunities claimed by government officials is not meant to apply

because of the gravity of the crimes under its jurisdiction. The same underlying rationale is

declared in article IV of the Genocide Convention, plainly stating persons committing

genocideshall be punished, whether they are constitutionally responsible rulers, public

officials or private individuals.95 Even if the head of state immunity would apply to either

individual, it is not an available immunity with respect to these crimes.

CONCLUSION

The Tangoon regime took advantage of a natural disaster. It intentionally failed to warn

its people about the oncoming cyclone. It refused all offers of humanitarian assistance, in spite

92Compromisat 7.

93U.S. v. Noriega, 117 F.3d 1206, 1211-12 (11th Cir. 1997).

94Rome Statute, supranote 53, art. 27.

95Genocide Convention, supranote 83, art. IV.


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of its peoples pressing and desperate need for food, water and medical attention. It enslaved

many of its people. It chose not to dispose of thousands of diseased corpses, which were

contaminating the water supply of both Tangoon and neighboring Samutra.

Canadas actions were consistent with international law. Canadas intervened at

Samutras request and pursuant to its inherent right to defend other States from armed attacks.

Additionally, Canadas intervention was lawful because it was authorized by the General

Assembly pursuant to its Uniting for Peace authority and the responsibility to protect doctrine,

which this Court should recognize as customary international law. Furthermore, Canadas

subsequent apprehension, detention and surrender to the ICC of Ishmael Balthasar and Clyde

Barrett were consistent with international law because of the universal jurisdiction applicable to

the grave crimes committed by both men. The apprehension and detention of Clyde Barrett and

Ishmael Balthasar were lawful under international law because it is a historically accepted

practice to use military force and does not violate any current international law. These men are

subject to no immunities for their actions because they are prohibited from doing so by the

Genocide Convention and the Rome Statute of the ICC. Canada respectfully requests this Court

to recognize Canadas actions as fully consistent with international law.

Respectfully Submitted,

Agents for Canada, 2012-07R

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