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2008


196 R

THE 2008 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION CASE CONCERNING CERTAIN CRIMINAL PROCEEDINGS IN ADOVA AND ROTANIA

IN THE INTERNATIONAL COURT OF JUSTICE

BETWEEN: REPUBLIC OF ADOVA (Applicant) and

STATE OF ROTANIA (Respondent)

MEMORIAL FOR THE RESPONDENT

CASE CONCERNING CERTAIN CRIMINAL PROCEEDINGS IN ADOVA AND ROTANIA TABLE OF CONTENTS INDEX OF AUTHORITIES ....................................................................................... iii STATEMENT OF JURISDICTION ..........................................................................xii QUESTIONS PRESENTED ......................................................................................xiii STATEMENT OF FACTS.........................................................................................xiv SUMMARY OF PLEADINGS ................................................................................xviii PLEADINGS .................................................................................................................1 I. ROTANIA’S ACTIONS IN APPREHENDING SAMARA PENZA AND THE OTHER MEMBERS OF THE LITVIAN ADVANCEMENT AND PROTECTION SOCIETY WERE NOT IN VIOLATION OF INTERNATIONAL LAW. .......................................................................................1 A. There is no customary or conventional international law prohibiting Rotania’s abduction of international terrorists. ...............................................1 B. Rotania’s actions were not in violation of the customary and conventional prohibition on the use of force...........................................................................3 C. In any event, Rotania’s actions were justified as self-defence. ..........................4 D. Rotania’s actions were further authorized by U.N. Security Council Resolution 2233 (2007).......................................................................................6 II. ROTANIA’S TREATMENT OF PENZA AND THE OTHER ADOVAN DETAINEES WHILE IN ITS CUSTODY WAS NOT IN VIOLATION OF INTERNATIONAL LAW. .......................................................................................7 A. Rotania’s treatment of the detainees was not in violation of conventional international law. ...............................................................................................7 i. Rotania’s treatment of the detainees was not in violation of the Torture Convention. ...................................................................................................7 a. Rotania’s treatment of the detainees was not torture. ..................................7 b. Rotania’s treatment of the detainees was not in violation of the prohibition on cruel, inhuman or degrading treatment.................................................8 ii. Rotania’s treatment of the detainees was not prohibited by the ICCPR. .........10 a. Rotania did not violate Article 7 of the ICCPR. ........................................10 b. Rotania did not violate Article 10 of the ICCPR. ......................................11 iii. Rotania’s treatment of the detainees does not violate the Geneva Conventions. ....................................................................................................................12 B. Rotania’s treatment of the detainees was consistent with customary international law. .............................................................................................13 i

III. IN ANY EVENT, ROTANIA’S PROSECUTION OF SAMARA PENZA AND THE OTHER LAPS MEMBERS BEFORE ITS MILITARY COMMISSION FOR ACTS COMMITTED AGAINST ROTANIAN CITIZENS AND AGAINST ROTANIAN RELIGIOUS AND CULTURAL INSTITUTIONS IS CONSISTENT WITH INTERNATIONAL LAW. ...............................................15 A. Rotania's right to prosecute is not invalidated by prior treatment of LAPS members. ..........................................................................................................15 i. Rotania has a right to prosecute LAPS members under the territorial principle. ....................................................................................................................15 ii. This right has not been invalidated. ...............................................................16 B. A declaration by this Court relating to the Rotanian Military Commission prosecutions before they have taken place is premature................................17 C. Moreover, Adova cannot argue that the procedures of the Rotanian Military Commission are inconsistent with international law. .....................................18 i. The procedures are not inconsistent with customary international law............18 ii. The procedures are not inconsistent with conventional international law.......21 a. The Geneva Conventions do not prohibit trial by the RMC. ......................21 b. The ICCPR does not prohibit trial by the RMC. .......................................22 IV. ADOVA’S EXERCISE OF JURISDICTION OVER KIRGOV AND VINITSA IS IN VIOLATION OF INTERNATIONAL LAW...............................................23 A. Adova’s assertion of jurisdiction over Kirgov and Vinitsa is a violation of their immunity under customary international law. ......................................23 B. In any event, Adova’s assertion of jurisdiction over Kirgov and Vinitsa for the treatment of the prisoners outside Adovan territory is impermissible under international law. .............................................................................................25 i. The acts of Kirgov and Vinitsa do not constitute an offence for which customary or conventional international law permit the exercise of jurisdiction based on universal jurisdiction or the passive personality principle. ...........................25 ii. Additionally, Adova’s exercise of universal jurisdiction is premature.............26 iii. Moreover, Adova’s exercise of universal jurisdiction over Kirgov in absentia violates international law. ............................................................................28 PRAYER FOR RELIEF .............................................................................................29

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INDEX OF AUTHORITIES CASES A and others v. Secretary of State for the Home Department (2004), [2005] 3 W.L.R. 1249 (H.L.) ................................................................................................................... 20 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. (Dec. 19) ............................................................................................................ 2, 5 Attorney-General of Israel v. Eichmann (1962), 36 I.L.R. 277 (Israel Sup. Ct.) ....... 16, 25 Brannigan & McBride v United Kingdom,(1993) Eur.Ct. H.R. (Ser A.) 258-B, 17 E.H.R.R.539.................................................................................................................. 11 Bundesgerichtshof, 13 February 1994, 1 BGs 100.94..................................................... 28 Caroline Case, 29 B.F.S.P. 1137; 30 B.F.S.P. 195(1837) ............................................ 5, 6 Case Concerning Avena and other Mexican Nationals (Mexico v. U.S.) 43 I.L.M. 581 (I.C.J.2004) ............................................................................................................. 17, 18 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), 2002 I.C.J. 3.. ................................................................................................................................ 24, 27 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v.Belgium) 2002 I.C.J. 3(Joint. Sep.Op. Judges Higgins, Kooijmans and Buergenthal)................................ 27, 29 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), 2002 I.C.J. 3(Sep. Op. J. Rezek)................................................................................................ 27, 28 Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), 2002 I.C.J. 3 (Sep. Op. President Guillaume) ..................................................................................... 28 Case Concerning Certain Criminal Proceedings in France (Republic of Congo v. France), [2003] I.C.J. Rep. 102. (J. De Cara dissent)..................................................... 27 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,[1986] I.C.J. Rep. 14 ........................ 3, 5 Corfu Channel (U.K. v. Albania), Merits, 1949 I.C.J. ...................................................... 2 Dimitrijevic v Serbia and Montenegro, Comm. No. 207/2002, UN Doc. CAT/C/35/D/172/2000 (2005)......................................................................................... 7 Estrella v. Uruguay, Comm. No. 74/1980, UN doc. CCPR/C/OP/2 at 93 (1990)............ 10

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Fals Borda v. Colombia, Comm. No. 46/1979, UN Doc. CCPR/C/OP/1.................. 17, 21 Frisbie v. Collins, 342 U.S. 655 (1952) ................................................................... 15, 16 G.S. v. Jamaica. Comm. No. 329/1988, UN Doc. A/43/40....................................... 17, 18 Guridi v Spain, Comm. No. 212/2002, UN Doc. CAT/C/34/d/212/2002 (2005)............... 7 Hamdan v. Rumsfeld, 548 U.S.___(2006) ...................................................................... 22 Ireland v United Kingdom (1978), 25 Eur. Ct. H.R. (Ser. A) 90................................... 7, 8 Massera v Uruguay, Comm. No.5/1977 UN Doc. CCPR/C/OP/1(1984) ........................ 10 Motta v Uruguay, Comm. No. 11/1997, UN Doc.CCPR/C/op/1(1984) .......................... 10 Mutombo v Switzerland, Comm. No. 13/1993, UN Doc. A/49/44 at 45 (1994) ................ 7 Polay Campos v. Peru, Comm. No. 577/1994, UN Doc. CCPR/C/61/D/577/1994 (1998) ........................................................................................................................................ 9 Prosecutor v. Rwamakuba (2000), Case No. ICTR-98-44-T (International Criminal Tribunal for Rwanda, Trial Chamber I) ......................................................................... 16 Prosecutor v. Dragan Nikolic, (2003) Case No. IT-94-2-AR73 (International Criminal Tribunal for the Former Yugoslavia Appeals Chamber)................................................. 16 Prosecutor v Kunarac, (2002), Case No. IT-96-23-T (International Criminal Tribunal for the Former Yugoslavia Trial Chamber) ......................................................................... 14 Prosecutor v. Lubanga, (ICC) Case No.01/04-01/06 (OA4)........................................... 16 R. v. Bow Street Magistrate, ex parte Pinochet Ugarte (No. 3) [2000] 1 A.C. 147 (H.L.) ...................................................................................................................................... 25 Re Argoud, (1964) 45 I.L.R. 90. .................................................................................... 16 Re Hartnett [1973] 1 O.R. (2d) 206-207 (C.A). ............................................................. 16 Re Javor, Cass.Crim.,26 March 1996, Bull.crim.1996. II. 379, No. 132.,93 A.J.I.L. 525 ...................................................................................................................................... 28 United States v. Toscanino, 500 F. 2d 267 (2d Cir.1974) ........................................ 16, 20 United States v. Alvarez-Machain, 505 U.S. 655 (1992) ................................................ 16

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Vuolanne v Finland, Comm. No. 265/1987, Supp. No.40, UN Doc. A/44/40(1989)....... 10 TEXTS Jeffrey F. Addicott, Terrorism Law: Materials, Cases, Comments (Tuscon: Lawyers and Judges Publishing Company, 2007) ................................................................................. 1 Amnesty International, “Universal Jurisdiction: The duty of states to enact and implement legislation” AI Index IOR 53/013/2001 at Ch.4, Part A ............................................... 28 D. W. Bowett, Self-Defense in International Law (New York: Frederick A. Praeger Inc., 1958)............................................................................................................................... 2 I. Brownlie, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963) ................................................................................................... 5 Ian Brownlie, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press,1998).................................................................................................................... 16 Ian Brownlie, Principles of Public International Law 6th ed. (Oxford: Oxford University Press, 2003)............................................................................................................. 15, 25 Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003).... ...................................................................................................................................... 24 Claire de Than and Edwin Shorts, International Criminal Law and Human Rights, (London: Sweet Maxwell, 2003) ................................................................................... 25 Erika de Wet, “The Chapter VII Powers of the United Nations Security Council” (Oxford: Hart Publishing, 2004) .................................................................................. 6, 7 Marie Henckaerts & Louise Dowald-Beck, eds., International Committee of the Red Cross: Customary International Humanitarian Law, vol.2, part 2 (Cambridge: Cambridge University Press, 2006) ................................................................................................. 20 Kriangsak Kittichaisaree, International Criminal Law, (Oxford: Oxford University Press 2003)....................................................................................................................... 14, 16 S. Joseph, J. Schultz & M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2d ed.(Oxford: Oxford University Press, 2004)............................................................................................................... 8, 9, 10, 11 Kenneth Manusama, “The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality” (Boston: Martinus Nijhoff Publishers, 2006)........ 6, 7

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Luc Reydams, Universal Jurisdiction, International and Municipal Legal Perspectives (Oxford: Oxford University Press 2003) ........................................................................ 28 Nigel S. Rodley, The Treatment of Prisoners Under International Law, (Oxford: University Press, 1987) ............................................................................................... 7, 8 ESSAYS, JOURNALS & ARTICLES Omer Z. Bekerman, “Torture - The Absolute Prohibition of a Relative Term: Does Everyone Know What is in Room 101?” (2005) 53 Am. J. Comp. L. 743...................... 15 Silvia Borelli, “Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the “war on terror”” (2005) 857 Int’l Rev. Red Cross 39 ......................... 12, 13 Ana Bostan, "The Right to a Fair Trial: Balancing Safety and Civil Liberties" (2004) 12 Cardozo J. Intl & Comp L. 1 ......................................................................................... 12 Antonio Cassese, “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction” (2003) 1 J. Int’l Crim.Just. 589............................................ 27, 28 James Thuo Gathi, “Assessing Claims of a New Doctrine of Pre-Emptive War Under the Doctrine of Sources” (2005) 43 Osgoode Hall L.J. 67 ..................................................... 5 P.R. Ghandi, “The Human Rights Committee and Articles 7 and 10(1) of the International Covenant on Civil and Political Rights 1966” (1990) 13 Dal. L.J. 758 .......... .................................................................................................................................. 9, 10 Malvina Halberstam, “Agora: International Kidnapping In Defence of the Supreme Court Decision in Alvarez Marchain” (1992) 86 A.J I.L.736 ................................................... 16 Douglas Kash, “Abducting Terrorists Under PDD-39: Much Ado About Nothing New” (1997) 13 Am. U. Int’l L. Rev. 139 at 140 ............................................................... 2, 3, 5 Joshua E. Kastenberg, “The Use of Conventional International Law in Combating Terrorism: A Maginot Line for Modern Civilization Employing the Principles of Anticipatory Self-Defense and Preemption” (2004) 55 A.F.L.Rev. 87 ......................... 2, 6 Thomas Kearley, “Raising the Caroline” (1999) 17 Wis. Int’l L.J. 325 at 325.................. 5 Raylene Keightley, “Torture and Cruel, Inhuman and Degrading Treatment or Punishment in the UN Convention Against Torture and Other Instruments: Recent Developments in South Africa” (1995) 11 S.A.J.H.R. 379............................................... 7 Claus Kress “Universal Jurisdiction over International Crimes and the Institut de Droit International” (2006) 4 Journal of International Criminal Justice 561 at 577.................. 27

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Susan Marks, “Civil Liberties at the Margin: the UK Derogation and the European Court of Human Rights” (1995) 15 Oxford Journal of Legal Studies ....................................... 11 Gregory S. McNeal & Brian J. Field, “Snatch-and-Grab Ops: Justifying Extraterritorial Abduction” (2007) 15 Transnat’l L. & Contemp. Probs. 491 ........................................... 2 Oscar Schachter, “In Defense of International Rules on the Use of Force” (1986) 53 U. Chicago L. Rev.113..................................................................................................... 2, 5 Oscar Schachter, “The Right of States to Use Armed Force” (1984) 82 Mich. L. Rev. 1620 ................................................................................................................................ 5 Torsten Stein, “Limits of International Law Immunities for Senior State Officials in Criminal Procedure”, in C. Tomuschat & J.M. Thouvenin, eds., The Fundamental Rules of the International Legal Order (Boston: Brill Publishers, 2006).................................. 24 Kimberley N. Trapp “Back to Basics: Necessity, Proportionality, and the Right of SelfDefence Against Non-State Terrorist Actors” (2007) 56 I.C.L.Q. 141.......................... 5, 6 J. Verhoeven, “Vers un ordre répressif universel? Quelques observations”(1999) 55 Annuaire Francais de Droit International ....................................................................... 28 Geoffrey Watson, “The Passive Personality Principle” (1993) 28 Texas Int. Law Journal 1 at 2; Harvard Law School, “ Jurisdiction With Respect to Crime” (1935) 29 A.J.I.L. Supp. 435 ................................................................................................................ 25, 26 Elizabeth Wilmhurst, “The Chatham House Principles of International Law on the Use of Force in Self-Defence” (2006) 55 I.C.L.Q. 963................................................................ 5 TREATIES, DECLARATIONS, AND OTHER INTERNATIONAL AGREEMENTS Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) ................... 20 Commission on Human Rights, Draft Third Optional Protocol to the ICCPR, Aiming at Guaranteeing Under All Circumstances the Right to Fair Trial and a Remedy, Annex I, in: The Administration of Justice and the Human Rights of Detainees, The Right to a Fair Trial: Current Recognition and Measures Necessary for Its Strengthening, HRC, 46th Sess. UN Doc. E/CN.4/Sub.2/1994/24........................................................................... 19 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 39 U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/RES/39/46 (1984)....................................................... xvii, 7, 8, 9, 13, 14, 24, 25, 26, 27, 28 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March 1988, 1678 U.N.T.S. 221............................................................ 28

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Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 14 September 1963, 704 U.N.T.S. 219 ........................................................................... 1, 28 Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, 2051 U.N.T.S. 363 ........................................................................................................ 28 Convention on the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 860 U.N.T.S. 105 ............................................................................................................. 1, 28 Convention for Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 24 U.S.T. 564................................................................................. 1, 28 Convention on the Physical Protection of Nuclear Material, 3 March 1980, 1456 U.N.T.S. 246, I.L.M. 1422......................................................................................... 1, 28 Declaration of Minimum Humanitarian Standards, reprinted in Report of the SubCommission on Prevention of Discrimination and Protection of Minorities on its Fortysixth Session, UN Doc. E/CN.4/1995/116 (1995)........................................................... 20 Declaration on Measures to Eliminate International Terrorism, GA Res. 49/60, UN GAOR, Supp. No.49, UN Doc. A/49/49 (1994)..................................................... 1, 2, 19 Definition of Aggression, GA Res. 3314, UN GAOR, 29th Sess., Supp. No. 31, UN Doc. A/9631 (1974) ............................................................................................................. 3, 4 Geneva Convention III relative to the Treatment of Prisoners of War 1949, 12 August 1949, 75 U.N.T.S. 135............................................................................... xvii, 12, 19, 22 Geneva Convention IV relative to the Protection of Civilian Persons 1949, 12 August 1949, 75 U.N.T.S. 972.................................................................................... xvii, 19, 22 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S 171 ........................................................................................... xvii, 11, 18, 20, 21, 22, 23 International Convention Against the Taking of Hostages, 17 December 1979, 1316 U.N.T.S. 205, 18 I.L.M. 1456.................................................................................... 1, 28 International Convention for the Suppression of Terrorist Bombings, 15 December 1997, U.N. Doc. A/RES/52/164; 37 I.L.M. 249 (1998)............................................................ 28 International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, U.N. Doc. A/RES/54/109; 39 I.L.M. 270 (2000) .................................................. 28 Protocol I Additional to the Geneva Convention of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8 1977, 1123 U.N.T.S. 3 .............................................................................................................................. xvii, 21

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Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflicts, June 1977, U.N.T.S. 609, 614..................... ....................................................................................................... xvii, 12, 13, 19, 20, 21 The Rome Statute of the International Criminal Court, 17 July 1998, U.N. Doc. A/conf.183/9th ......................................................................................................... 13, 14 SC Res.1267, UN SCOR, 52nd Sess., 4051st mtg., UN Doc. S/RES/1267 (1999)............ 2 SC Res. 1368, UN SCOR, 56th Sess., 4370 mtg. UN Doc. S/RES/1368(2001) ......... 2, 5, 6 SC Res 1373 UN SCOR, 56th Sess., 4385th mtg., UN Doc. S/RES/1373 (2001) ....... 2, 5, 6 Statute of the International Court of Justice, 1946 U.N.Y.B. 843........................... xii, xvii UN Charter.............................................................................................................. 3, 4, 6 United Nations Convention against Transnational Organized Crime, 15 November 2000, GA Res. 25, UN GAOR, 55th Sess., Supp. No. 49, UN Doc A/45/49 ............................. 28 Vienna Convention on the Law of Treaties, 27 January 1980, 1155 U.N.T.S. 331.. xvii, 13 MISCELLANEOUS American Legal Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987)...................................................................................................... 26 Argentina, Law of War Manual (1969) .......................................................................... 20 Australia, Defence Force Manual .................................................................................. 20 Canada, LOAC Manual (1981) ...................................................................................... 20 Canada, LOAC Manual (1999) ...................................................................................... 14 Code Pénal France......................................................................................................... 28 Colombia, Instructors' Manual (1999)........................................................................... 20 Concluding Observations of the Human Rights Committee, Romania, UN. Doc. CCPR/79/Add.111(1999) .............................................................................................. 19 Concluding Observations of the Human Rights Committee, Spain, UN Doc. CCPR/C/79/Add.61(1996)............................................................................................. 23

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S. Chernichenko & William Treat, The Right to a Fair Trial: Current Recognition and Measures Necessary for its Strengthening, Final Report. UN Doc.E/CN.4/Sub.2/1994/24 ...................................................................................................................................... 19 Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24................................... 28 Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism 66 Fed. Reg. 58, 883 (2001) §1(f). .................................................................................... 23 Ecuador, Naval Manual (1989)...................................................................................... 20 France, LOAC Summary Note (1992)............................................................................. 14 General Comment No.13, HRC, 21st Sess. UN Doc. HRI/GEN/1/Rev.1 at 14 (1994)..... 21 General Comment No. 29, HRC, UN Doc. CCPR/C/21/Rev.1/Add.11(2001) .... 11, 19, 22 General Comment No. 31, HRC, 18th Sess., UN Doc.CCPR/C/21/Rev.1/Add13(2004) ..... ...................................................................................................................................... 22 General Comment No.32, HRC, 19th Sess. UN Doc. CCPR/C/GC/32(2007).................. 19 Germany, Military Manual (1992)................................................................................. 20 Hungary, Military Manual (1992) ................................................................................ 20 Inter-Am. Comm. H.R., Report on Terrorism and Human Rights of October 22, 2002, OEA/Ser.L/V/II.116/doc.5 rev.1.corr............................................................................. 20 Joint Circular on Adherence to IHL and Human Rights of the Phillippines (1991) ........ 20 Matter of Extradition of Demjanjuk, 612 F.Supp.544 (N.C. Ohio 1985)......................... 25 Memorandum from Jay S. Bybee to Alberto Gonzales, Standards of Conduct for Interrogation under 18 U.S.C. §§. 2340-2340A (Aug. 1, 2002)...................................... 14 New Zealand, Military Manual (1992) .......................................................................... 20 Office of the United Nations High Commissioner for Human Rights, Preliminary Findings on Visit to United States by Special Rapporteur on Promotion and Protection of Human Rights While Countering Terrorism , Press Release, May 29, 2007 ................... 12 “The Princeton Principles on Universal Jurisdiction” in Stephen Macedo ed., Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia: University of Pennsylvania Press, 2004).......................................... 25

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The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc.E/CN.4/1984/4 (1984) 11, 21, 22 Spain, LOAC Manual (1996) ......................................................................................... 20 Switzerland, Basic Military Manual (1987) ................................................................... 20 UK, Military Manual (1958) ......................................................................................... 20 US, Field Manual (1956)......................................................................................... 14, 20 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, ESC Res.1(XXIV), UN Doc. E/CN. 4/1070 (1971).................................................... 11, 21, 22

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STATEMENT OF JURISDICTION The Republic of Adova (“Applicant”) and the State of Rotania (“Respondent”) submit their dispute by Special Agreement dated September 28, 2007, and without reservation, to the International Court of Justice pursuant to Article 40(1) of the Statute of the International Court of Justice. The parties have agreed to the contents of the Compromis, subject to the Corrections and Clarifications issued November 16, 2007. In accordance with Article 36(1) of the Court’s Statute, each party shall accept any Judgment of the Court as final and binding upon them and shall execute it in its entirety and in good faith.

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QUESTIONS PRESENTED I Whether Rotania is entitled to a declaration that the apprehension and rendition of Samara Penza and the other LAPS citizens was consistent with international law; II Whether Rotania is entitled to a declaration that Samara Penza and the other LAPS members were detained and treated in a manner consistent with international law; III Whether Rotania is entitled to a declaration that it may prosecute Samara Penza and the other LAPS members before its Military Commission for acts committed against Rotanian citizens and against Rotanian religious and cultural institutions; IV Whether Rotania is entitled to a declaration that Adova’s exercise of jurisdiction over President Kirgov and General Vinitsa is in violation of international law.

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STATEMENT OF FACTS The parties to this dispute are the Republic of Adova (“Adova”) and the State of Rotania (“Rotania”). In 1970, Adova and Rotania were established from the former Kingdom of Sybilla. The population of both countries is made up primarily of two ethnic groups: Stovians and Litvians. In Adova, the majority of the population is Litvian with a Stovian minority while in Rotania the opposite is true. Since 1985, Samara Penza has chaired the Litvian Advancement and Protection Society (LAPS), an increasingly political organization for Litivians in Rotania. LAPS does not control any territory. The Independent Litvia Solidarity Association (ILSA) is a radical wing of LAPS. Adova has provided much of LAPS’ funding; in 2004, the last year for which data are available, it provided 45% of LAPS’ total funding. On 1 January 2007, Penza made a public statement in which she called upon the world to embrace self-determination “no matter the cost, and no matter the sacrifice”. Immediately following Penza’s statement, ILSA released a manifesto pledging to “take dramatic measures” to achieve Litvian independence. Through January and February, ILSA attacked numerous Stovian cultural and religious sites in Rotania. On 22 February 2007, following a message from ILSA, the Shrine of the Seven Tabernacles, the holiest site of the Stovian religion, was set ablaze. It was completely destroyed and 22 Rotanian citizens, including seven members of the Committee of Elders, were killed. On 24 February, Penza released a statement from a location in Adova, in which she called the victims of the attack martyrs for the Litvian cause and, rather than condemning the attacks, endorsed the use of “urgent measures” to achieve a free Litvia.

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Following these attacks, Rotanian President Kirgov declared a national state of emergency, and pledged to take all necessary measures to bring Penza and the other LAPS terrorists to justice. To that end, he empowered the 373rd Battalion to take what measures it deemed necessary to apprehend the terrorists, provided that their activities were consistent with Rotanian and international law. Since 1996, the 373rd Battalion has been commanded by Colonel Vinitsa, an ethnic Stovian, who has lectured, published and taught international humanitarian law both domestically and abroad; he also serves as principal advisor to Rotania on the law of war. On 7 March 2007, the United Nations Security Council adopted Resolution 2233, which condemned the attacks in Rotania and acknowledged that the LAPS situation “threatens international peace and security in the region”. On 15 March 2007, Vinitsa issued a proclamation stating: that Rotania is in a state of armed conflict with LAPS; that Penza and the other LAPS members are enemy combatants unprotected by the Geneva Conventions; that no one under his command is authorized to perform acts of torture; and that Rotanian agents are, however, authorized to inflict non-lethal pain upon terrorist suspects and to use practices including deprivation of sleep, clothing and food, subjection to extreme temperatures, forced adoption of stress positions, and long and intense interrogation. The proclamation deemed the use of these techniques permissible when necessary to protect human lives against imminent threat. On 3 April 2007, Vinitsa announced that the 373rd Battalion had apprehended Penza and a dozen of her operatives inside the Adovan border. He also stated that Penza had confessed to instigating, facilitating, and financing a number of terrorist attacks in Rotania, including the burning of the Shrine of the Seven Tabernacles. He further announced that she had divulged the details of plans for more attacks in Rotania that

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would have resulted in a substantial loss of life. Kirgov later confirmed that LAPS had planned to commit an arson attack on the National Theater during the Opening Ceremonies for the National Day of Celebration on 14 May. On 12 April 2007, Zoran Makar, a member of LAPS, presented himself at a police station near Camp Indigo, a Rotanian military facility in the state of Merkistan. Makar reported that he had escaped from the camp, where he and 12 other LAPS members, including Penza, had been held for three weeks, along with other prisoners. Makar claimed that the detainees had been stripped and kept partially clothed, were provided inadequate food and water, were subject to intermittent hanging by the wrists from chains, and were exposed to continuous bright light, uncomfortably cold cell temperatures, and loud discordant music. He was examined by a physician and found to have suffered no permanent injury. On 26 April 2007, Penza and the other LAPS members were transferred to the custody of the Rotanian Military Commission (“RMC”). The RMC was established pursuant to the Protection of the State Act of 1980 in order to prosecute suspected terrorists. Under the RMC procedures, defendants cannot challenge evidence from coercive interrogations and cannot choose their own counsel, but are assigned military lawyers. Witnesses are allowed to testify anonymously and defendants cannot inquire into sources of evidence deemed classified for military or security reasons. The first trial by the RMC is scheduled for May 2008. On 1 May 2007, Kirgov promoted Vinitsa to General. Vinitsa, having reached the mandatory retirement age, retired a week later. A few weeks later, Kirgov underwent triple by-pass surgery and later announced his resignation due to illness.

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On 20 July 2007, Adovan national police raided a Stovian restaurant in Adova, where they discovered Vinitsa and took him into custody. The Adovan Attorney General announced that Vinitsa had been charged with offences under Adovan statutes implementing the 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“Torture Convention”), in connection with the apprehension and treatment of Penza and the other LAPS members. The indictment named Kirgov as a co-conspirator and a warrant was issued for Kirgov’s arrest. The government of Rotania immediately protested in a diplomatic note to Adova, stating: “Adova has no legitimate basis under the Torture Convention or otherwise to exercise criminal jurisdiction over General Gommel Vinitsa or former President Michael Kirgov”, and demanded that Vinitsa be released and that the arrest warrant for Kirgov be quashed. Adova and Rotania are members of the United Nations and parties to the Statute of the International Court of Justice, though neither has accepted the Court’s compulsory jurisdiction. Both states are parties to 1949 Geneva Conventions and the two Additional Protocols of 1977, the 1969 Vienna Convention on the Law of Treaties, the 1966 International Covenant on Civil and Political Rights, and the Torture Convention. There are no bilateral extradition treaties among Merkistan, Adova and Rotania.

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SUMMARY OF PLEADINGS I. Rotania’s recovery of the LAPS members from Adovan territory did not violate international law. There is no customary or conventional international law prohibiting the abduction of terrorists from the territory of an uncooperative state. Rotania’s military operation did not violate the prohibition on the use of force because Adova’s territorial integrity and political independence were not threatened. In any event, Rotania’s actions are justified by the right of self-defence. Moreover, Rotania’s actions were authorized by the U.N. Security Council.

II. Rotania’s treatment of Samara Penza and the other Adovan detainees was internationally lawful. Rotania accepts that torture is prohibited by both customary and conventional international law; however Rotania’s treatment of the detainees did not constitute torture, lacking the required element of the infliction of severe pain or suffering. Nor was it cruel, inhuman or degrading treatment. Furthermore, Rotania can derogate from its conventional obligations with respect to the treatment of prisoners.

III. Rotania’s prosecution of Samara Penza and the other LAPS members before its Military Commission for acts committed against Rotanian citizens and Rotanian religious and cultural institutions is consistent with international law. Rotania has a right to prosecute regardless of any prior treatment of LAPS members, and a declaration by this Court relating to the Rotanian Military Commission prosecutions before they have taken place, is premature. Moreover, Adova cannot argue that the procedures of the Rotanian Military Commission are inconsistent with international law; these procedures are not

xviii

inconsistent with customary international law and are consistent with Rotania's conventional obligations.

IV. Adova’s exercise of jurisdiction over President Kirgov and General Vinitsa is in violation of international law. Adova’s assertion of jurisdiction over Kirgov and Vinitsa for the apprehension and treatment of the Adovan prisoners is a violation of their immunity under customary international law. Even if Kirgov and Vinitsa are not immune from Adova’s jurisdiction, Adova’s assertion of jurisdiction over the treatment of the prisoners outside Adovan territory is impermissible under international law, as Kirgov’s and Vinitsa’s actions do not constitute an offence for which the exercise of jurisdiction based on universal jurisdiction or the passive personality principle is permitted. Furthermore, Adova’s exercise of universal jurisdiction is premature and its exercise of universal jurisdiction over Kirgov in absentia violates international law.

xix

PLEADINGS I. ROTANIA’S ACTIONS IN APPREHENDING SAMARA PENZA AND THE OTHER MEMBERS OF THE LITVIAN ADVANCEMENT AND PROTECTION SOCIETY WERE NOT IN VIOLATION OF INTERNATIONAL LAW. A. There is no customary or conventional international law prohibiting Rotania’s abduction of international terrorists. 1. Although the international community has yet to adopt a universal definition of

terrorism,1 the U.N. General Assembly Declaration on Measures to Eliminate International Terrorism provides that “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable”.2 Generally, proposed definitions of terrorism have certain elements in common: the use of violent acts and threats of violence to promote a political or ideological agenda and to mobilize or immobilize a target group by instilling fear in a civilian population.3 2. While Rotania recognizes that there may be a customary international norm against the

abduction of criminal suspects from foreign states, the recovery of terrorists from uncooperative states is a different matter. Terrorism is a threat to international peace and security and an affront to humanity, as confirmed by conventions,4 U.N. General Assembly resolutions,5 U.N. Security

1

Jeffrey F. Addicott, Terrorism Law: Materials, Cases, Comments (Tuscon: Lawyers and Judges Publishing Company, 2007) at 1.
2

Declaration on Measures to Eliminate International Terrorism, GA Res. 49/60, UN GAOR, Supp. No.49, UN Doc. A/49/49 (1994) [Terrorism Declaration]. Addicott, supra note 1 at 4.

3 4

Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 14 September 1963, 704 U.N.T.S. 219; Convention on the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 860 U.N.T.S. 105 [Unlawful Seizure of Aircraft Convention]; Convention for Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 24 U.S.T. 564 [Safety of Civil Aviation Convention]; International Convention Against the Taking of Hostages, 17 December 1979, GA Res. 146, UN GAOR 34th Sess., Supp.No.39, UN Doc. 1

Council resolutions,6 jurists7 and publicists.8 States are under a legal obligation to deny safe haven to terrorists,9 to ensure that their territories are not used for acts contrary to the rights of other states10 and to either prosecute or extradite terrorists found within their territory.11 Publicists have confirmed that, when a host state is unwilling or unable to fulfill this obligation, the abduction of terrorists by another state is increasingly common and acceptable within the international community.12 Furthermore, there are no international conventions explicitly prohibiting extraterritorial abductions; in the absence of an extradition treaty between two states, A/34/819 (1979) [Against the Taking of Hostages Convention]; Convention on the Physical Protection of Nuclear Material, 3 March 1980, 1456 U.N.T.S. 246, I.L.M. 1422.
5

Terrorism Declaration, supra note 2; GA Res. 59/191 Concerning Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, 20 December 2004, UN Doc. A/RES/59/191 (2004).

6

SC Res. 1368, UN SCOR, 56th Sess., 4370 mtg. UN Doc. S/RES/1368(2001); SC Res 1373 UN SCOR, 56th Sess., 4385th mtg., UN Doc. S/RES/1373 (2001); SC Res.1267, UN SCOR, 52nd Sess., 4051st mtg., UN Doc. S/RES/1267 (1999).
7

Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. (Dec. 19) at para. 162 [Congo v. Uganda].

8

Joshua E. Kastenberg, “The Use of Conventional International Law in Combating Terrorism: A Maginot Line for Modern Civilization Employing the Principles of Anticipatory Self-Defense and Preemption” (2004) 55 A.F.L.Rev. 87 at103; Gregory S. McNeal & Brian J. Field, “Snatchand-Grab Ops: Justifying Extraterritorial Abduction” (2007) 15 Transnat’l L. & Contemp. Probs. 491 at 519.
9

SC Res. 1373, supra note 6. Corfu Channel (U.K. v. Albania), Merits, 1949 I.C.J. 4 at 22-23. Terrorism Declaration, supra note 2.

10 11 12

D. W. Bowett, Self-Defense in International Law (New York: Frederick A. Praeger Inc., 1958) at 55; McNeal & Field, supra note 8 at 510-517; Oscar Schachter, “In Defense of International Rules on the Use of Force” (1986) 53 U. Chicago L. Rev.113 at140 [Schachter "In Defense"]; Douglas Kash, “Abducting Terrorists Under PDD-39: Much Ado About Nothing New” (1997) 13 Am. U. Int’l L. Rev. 139 at 144.

2

international law does not restrict the ability of each state to access terrorists harboured by the other state.13 3. Samara Penza and the other members of the Litvian Advancement and Protection Society

(“LAPS”) are terrorists. The attacks by LAPS, culminating in the burning of the Shrine of the Seven Tabernacles and the tragic death of 22 Rotanians [Compromis ?21], and the threat of further attacks [Compromis ?18, 23], were calculated to strike fear into the hearts of Rotanians and to coerce the Rotanian government into giving in to LAPS’ demands. Adova’s continued failure to either extradite LAPS terrorists from its territory, or to prosecute them itself, despite demands by the Security Council [Compromis Appendix I], is a violation of its international obligations. In response to this violation, and in conformity with state practice and international law, Rotania exercised its right to apprehend the terrorists. B. Rotania’s actions were not in violation of the customary and conventional prohibition on the use of force. 4. The customary prohibition on the use of force has been codified by Article 2(4) of the

U.N. Charter,14 which forbids states from engaging in acts that are “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. 15 Although a broad reading of the prohibition was advocated in early years, a U.N. General Assembly resolution16 has clarified its scope by defining aggression,

13 14

Kash, supra note 12 at 154.

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, [1986] I.C.J. Rep. 14 at para. 110 [Nicaragua].
15 16

UN Charter at Article 2(4).

Definition of Aggression, GA Res. 3314, UN GAOR, 29th Sess., Supp. No. 31, UN Doc. A/9631 (1974).

3

or the unlawful use of force, as including the invasion and occupation of another state,17 bombardment of another state’s territory,18 blockading of ports,19 and attacks on the military of another state.20 All of these acts threaten the territorial integrity or political independence of another state. 5. At no time during Rotania’s recovery and rendition operation was Adova’s territorial

integrity or political independence threatened. There is no evidence that Rotania’s incursion into Adovan territory was anything but minimal and temporary; Rotania committed no act of the magnitude described by U.N. General Assembly Resolution 3314. The Adovan government was not even aware of Rotania’s operations until after they were complete, and there were no lasting effects on the state or its government. Nor were Rotania’s actions “inconsistent with the Purposes of the United Nations”; the capture and trial of international terrorists is in the interests of all nations, and promotes international peace and security, which is one of the purposes of the United Nations.21 C. In any event, Rotania’s actions were justified as self-defence. 6. The ability of a state to protect its property and citizens against attack is paramount;

Article 51 of the U.N. Charter underlines the importance of this right, stating that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has
17 18 19 20 21

Ibid. Ibid. at Article 3(b). Ibid. at Article 3(c). Ibid. at Article 3(d). UN Charter at Article 1(1).

4

taken measures necessary to maintain international peace and security”.22 Publicists23 and this Court24 have confirmed that self-defence can be exercised in response to an armed attack on the state; publicists25 also confirm that, in the case of an imminent attack, states have the right to exercise anticipatory self-defence. State practice,26 jurists27 and publicists28 have also confirmed that self-defence includes taking action against a non-state terrorist or insurgent group in the face of continuing and escalating attacks if the host state is unwilling or unable to deal with the threat itself; the self-defence measures must be necessary, proportionate and targeted at the group, rather than the host state. 7. In recovering the LAPS terrorists from Adova, Rotania was exercising its inherent right

of self-defence, not against Adova, but against the LAPS organization. The repeated and
22 23

UN Charter at Article 51.

Oscar Schachter, “The Right of States to Use Armed Force” (1984) 82 Mich. L. Rev. 1620 at 1633-1634 [Schacter "Armed Force"]; James Thuo Gathi, “Assessing Claims of a New Doctrine of Pre-Emptive War Under the Doctrine of Sources” (2005) 43 Osgoode Hall L.J. 67 at 73. Nicaragua, supra note 14; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136 [Wall Opinion]; Congo v. Uganda, supra note 7. Schachter "Armed Force", supra note 23 at 1634-1635; Elizabeth Wilmhurst, “The Chatham House Principles of International Law on the Use of Force in Self-Defence” (2006) 55 I.C.L.Q. 963 967-968; I. Brownlie, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963) at 259; Schachter "In Defense", supra note 12 at 140.
25

24

26

SC Res. 1368, supra note 6; SC Res 1373, supra note 6; Caroline Case, 29 B.F.S.P. 1137; 30 B.F.S.P. 195(1837).
27

Congo v. Uganda (Sep. Op. J. Simma), supra note 7 at 370; Wall Opinion, supra note 24 at para. 6.

28

Kash, supra note 12 at 147; Wilmhurst , supra note 26 at 970; Thomas Kearley, “Raising the Caroline” (1999) 17 Wis. Int’l L.J. 325 at 325; Kimberley N. Trapp “Back to Basics: Necessity, Proportionality, and the Right of Self-Defence Against Non-State Terrorist Actors” (2007) 56 I.C.L.Q. 141 at 154-155.

5

escalating attacks on Rotanian citizens by LAPS constituted a continuing armed attack that necessitated a response. In addition, LAPS’ stated plan to continue its attacks, and the increasingly short intervals between succeeding attacks [Compromis ?18, 19] made the threat of another attack on Rotanian citizens and property imminent, as acknowledged by the U.N. Security Council [Compromis Appendix I]; the need for decisive action was “instant, overwhelming, leaving no choice of means, and no moment for deliberation”.29 The operation by Rotania responded directly to the threat, and it was proportionate and surgically precise. This is a proper exercise of the right of self-defence. D. Rotania’s actions were further authorized by U.N. Security Council Resolution 2233 (2007). 8. Article 51 of the U.N. Charter recognizes that the right of self-defence is inherent; it is

not dependent on the authorization of the U.N. Security Council.30 Publicists31 have confirmed that the affirmation of the right of self-defence in a U.N. Security Council resolution adopted under Chapter VII indicates recognition by the Security Council that an armed attack has occurred, and that the conditions for the legal exercise of the right of self-defence exist; in short, a resolution affirming the right of self-defence amounts to an endorsement by the Security Council of the exercise of that right. After the September 11 attacks, for example, the Security Council passed a resolution re-affirming the right of self-defence.32 Shortly thereafter, the United
29 30

Caroline, supra note 26. Kastenberg, supra note 8 at 108.

Kenneth Manusama, “The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality” (Boston: Martinus Nijhoff Publishers, 2006) at 292; Erika de Wet, “The Chapter VII Powers of the United Nations Security Council” (Oxford: Hart Publishing, 2004) at 264; Trapp, supra note 28 at 151.
31

32

SC Res 1368, supra note 6; SC Res 1373, supra note 6.

6

States, with the aid of the United Kingdom, launched a series of attacks on Al-Qaeda strongholds in Afghanistan; these actions were accepted within the international community.33 9. Article 4 of U.N. Security Council Resolution 2233 re-affirms Rotania’s right of self-

defence [Compromis Appendix I]. This indicates that the Security Council has recognized the terrorist actions by LAPS as constituting an armed attack, and the right of Rotania to respond in self-defence. The Security Council’s implicit authorization of Rotania’s exercise of self-defence confirms that Rotania’s actions were not in violation of international law. II. ROTANIA’S TREATMENT OF PENZA AND THE OTHER ADOVAN DETAINEES WHILE IN ITS CUSTODY WAS NOT IN VIOLATION OF INTERNATIONAL LAW. A. Rotania’s treatment of the detainees was not in violation of conventional international law. i. Rotania’s treatment of the detainees was not in violation of the Torture Convention. a. Rotania’s treatment of the detainees was not torture. 10. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“Torture Convention”) defines torture as requiring “severe” pain or suffering deliberately inflicted for specific purposes.34 Jurists35 and publicists36 indicate that the threshold

33

Manusama, supra note 31 at 291; de Wet, supra note 31; U.N. Secretary-General press release (October 8, 2001) UN Doc. SG/SM/7985 AFG/149.
34

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 39 U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/RES/39/46 (1984) at Article 1 [Torture Convention]. Ireland v United Kingdom (1978), 25 Eur. Ct. H.R. (Ser. A) 90 [Ireland]; Guridi v Spain, Comm. No. 212/2002, UN Doc. CAT/C/34/d/212/2002 (2005); Mutombo v Switzerland, Comm. No. 13/1993, UN Doc. A/49/44 at 45 (1994); Dimitrijevic v Serbia and Montenegro, Comm. No. 207/2002, UN Doc. CAT/C/35/D/172/2000 (2005).
36 35

Nigel S. Rodley, The Treatment of Prisoners Under International Law, (Oxford: University Press, 1987) [Rodley, The Treatment of Prisoners] at 79-82; Raylene Keightley, “Torture and 7

for severity of acts to constitute torture is a high one. To reach the level of torture conduct must be as severe as: rape; amputations; mock executions; repeated immersions in a mixture of blood, urine, excrement and vomit; electric shocks to the genitals; being buried alive; and severe beatings.37 11. Rotania’s treatment of the Adovan detainees was not torture, as it lacked the element of

severe pain and suffering. Colonel Vinitsa’s 15 March 2007 proclamation authorized the use of techniques, such as deprivation of sleep, that are intended to cause discomfort only [Compromis Appendix III]. Such techniques were expressly found not to be torture by the European Court of Human Rights.38 The only detainee who was examined by independent physicians was found to have suffered no serious harm [Compromis ?33]. b. Rotania’s treatment of the detainees was not in violation of the prohibition on cruel, inhuman or degrading treatment. 12. While the Torture Convention also prohibits cruel, inhuman or degrading treatment in

Article 16, it fails to provide a definition of such treatment. Although cruel, inhuman or degrading treatment is generally considered to encompass ill-treatment falling short of torture,39 such treatment still requires either the infliction of pain and suffering, or extreme humiliation, or

Cruel, Inhuman and Degrading Treatment or Punishment in the UN Convention Against Torture and Other Instruments: Recent Developments in South Africa” (1995) 11 S.A.J.H.R. 379.
37

S. Joseph, J. Schultz & M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2d ed. (Oxford: Oxford University Press, 2004) at 213-214; Rodley, ibid. at 79-82.
38 39

Ireland v U.K., supra note 35. Rodley, supra note 36.

8

a combination of both, upon the victim.40 Further, Article 2(2), stating that no exceptional circumstances may be used to justify torture, refers to torture only and not to cruel, inhuman or degrading treatment. The treatment of the Adovan detainees falls short even of this lesser standard. There is no evidence of any violence against the detainees and detainees were not subjected to any humiliating acts of the kind found to constitute degrading treatment, such as being displayed to the press in a cage.41 13. Even if this Court makes a finding of cruel, inhuman or degrading treatment, this does

not carry the same consequences under the Torture Convention as a finding of torture. The language of Article 16 of the Convention requires states to merely “undertake to prevent” acts of cruel, inhuman or degrading treatment. To further this goal, articles relating to education,42 review of methods of interrogation43 and investigation of complaints44 apply to cruel, inhuman or degrading treatment as well as to torture. However, states are not required to criminalize these acts, to take effective legislative steps to prevent them, to refuse extradition to states that practice these acts or to exempt statements obtained through these acts from evidence in proceedings, as is the case with torture.45 This indicates that the Article 16 provisions are aspirational and not an

40

P.R. Ghandi, “The Human Rights Committee and Articles 7 and 10(1) of the International Convenant on Civil and Political Rights 1966” (1990) 13 Dal. L.J. 758; Joseph, Schultz & Castan, supra note 37 at 208-211.
41

Polay Campos v. Peru, Comm. No. 577/1994, UN Doc. CCPR/C/61/D/577/1994 (1998) at para. 8.5.
42 43 44 45

Torture Convention, supra note 34 at Article 10. Ibid. at Article 11. Ibid. at Article 13. Ibid. at Articles 2, 3, 4, 15.

9

absolute duty. As Article 2(2) does not apply, even if such treatment is generally prohibited, in these circumstances any cruel, inhuman or degrading treatment was justified by the necessity of obtaining information to prevent future attacks on Rotania. ii. Rotania’s treatment of the detainees was not prohibited by the ICCPR. a. Rotania did not violate Article 7 of the ICCPR. 14. Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”) provides

that no one shall be subjected to torture or cruel, inhuman or degrading treatment. The ICCPR does not provide a definition of either torture or cruel, inhuman or degrading treatment, but jurists46 and publicists47 have considered when treatment of detainees violates Article 7, often without identifying whether the impugned conduct is torture or lesser ill-treatment. To constitute a violation of Article 7, the treatment must go significantly beyond the discomforts, embarrassments and unpleasantness that are inherent in detention.48 Many of the cases finding a violation of Article 7 involve a serious assault of the detainee, often in combination with other ill-treatment such as the denial of medical care. Violations have been found when prisoners are subjected to treatment such as beatings, threats of torture to family members, and lengthy periods of solitary confinement.49 15. The treatment of the Adovan detainees was not sufficient to constitute a violation of

Article 7. There is no evidence of any serious harm suffered by the detainees. While the
46

Massera v Uruguay, Comm. No.5/1977 UN Doc. CCPR/C/OP/1(1984); Motta v Uruguay, Comm. No. 11/1997, UN Doc.CCPR/C/op/1(1984); Estrella v. Uruguay, Comm. No. 74/1980, UN doc. CCPR/C/OP/2 at 93 (1990). Ghandi, supra note 40; Joseph, Schultz & Castan, supra note 37. Vuolanne v Finland, Comm. No. 265/1987, Supp. No.40, UN Doc. A/44/40(1989) at para. 9.2. Ghandi, supra note 40.

47 48 49

10

detainees may have been subjected to some discomforts [Compromis ?33], there is no evidence that they were assaulted or subjected to the kinds of treatments that have been found to be in violation of Article 7. b. Rotania did not violate Article 10 of the ICCPR. 16. While Article 10 of the ICCPR provides for standards in the treatment of detained

persons, derogations from the obligations under this Article are permissible to the extent required by the situation.50 Derogations are possible in times of public emergency, which includes terrorist attacks.51 Generally, a state’s discretion to determine when an emergency exists is respected by international courts.52 Although formally there is a provision calling for notice of any derogation, few states have ever provided notice in the proper form.53 This indicates that international law does not expect strict compliance with notice requirements. In any event, the procedure of notifying the U.N. Secretary-General of intentions and reasons for derogation is a

50

International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. at Article 4 [ICCPR]; General Comment No. 29, HRC, UN Doc. CCPR/C/21/Rev.1/Add.11(2001) at paras.2-4; UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, ESC Res.1(XXIV), UN Doc. E/CN. 4/1070 (1971) 50 [Sub-Commission]; The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc.E/CN.4/1984/4 (1984) at paras. 39, 51, 54,70 [Siracusa Principles].
51

Brannigan & McBride v United Kingdom, (1993) Eur. Ct. H.R. (Ser A.) 258-B, 17 E.H.R.R.539; Joseph, Schultz & Castan, supra note 37 at 825.

52

Susan Marks, “Civil Liberties at the Margin: the UK Derogation and the European Court of Human Rights” (1995) 15 Oxford Journal of Legal Studies.
53

Joseph, Schultz & Castan, supra note 37 at 834.

11

separate obligation that does not invalidate the right to derogate in light of a de facto emergency.54 17. In response to the terrorist attacks on Rotanian holy sites, President Kirgov declared a

state of national emergency in Rotania on 2 March 2007 [Compromis ?25]. The state of emergency was further announced by the Rotanian Foreign Minister at the 6000th meeting of the U.N. Security Council [Clarification ?2]. This allows Rotania to derogate from its Article 10 obligations. Formal compliance with notice procedures is not required, since Vinitsa’s proclamation of 15 March 2007 provides adequate and detailed notice to other state parties of Rotania’s intentions with respect to the Adovan detainees. In any event, any deficiency in Rotania’s notification of its intentions to derogate does not invalidate its right to derogate. iii. Rotania’s treatment of the detainees does not violate the Geneva Conventions. 18. Rotania accepts that the Geneva Conventions prohibit “torture” and “cruel treatment”,

however, the Geneva Conventions only apply to situations of armed conflict.55 Generally, states responding to terrorist activities are exercising law enforcement operations, and are not considered to be in an armed conflict.56 In particular, Protocol II only applies to conflicts involving organized armed groups that have control over territory, and not to internal
54

Ana Bostan, "The Right to a Fair Trial: Balancing Safety and Civil Liberties" (2004) 12 Cardozo J. Intl & Comp L. 1 at para. 31.
55

Geneva Convention III relative to the Treatment of Prisoners of War 1949, 12 August 1949, 75 U.N.T.S. 135 at Article 3[Geneva Convention III]; Geneva Convention IV relative to the Protection of Civilian Persons 1949, 12 August 1949, 75 U.N.T.S. 972 at Article 3[Geneva Convention IV].
56

Office of the United Nations High Commissioner for Human Rights, Preliminary Findings on Visit to United States by Special Rapporteur on Promotion and Protection of Human Rights While Countering Terrorism , Press Release, May 29, 2007 at 3 [High Commissioner Press Release]; Silvia Borelli, “Casting light on the legal black hole: international law and detentions abroad in the “war on terror”” (2005) 857 Int’l Rev. Red Cross 39 at 52.

12

disturbances and tensions.57 Domestic characterizations of the conflict have no effect on this international determination.58 19. The Geneva Conventions do not apply to Rotania in this situation as this is not an armed

conflict. In particular, Protocol II does not apply as LAPS does not control any territory. Although Vinitsa had declared that Rotania was in a state of armed conflict with LAPS [Compromis Appendix III], as a mere colonel Vinitsa would not have had authority to bind Rotania to such a declaration; furthermore this position has not been endorsed by the Executive [Compromis ?29]. Moreover, Vinitsa’s proclamation has no effect in international law, where similar actions have instead been considered law enforcement operations on an international scale.59 Even if the Geneva Conventions apply, Rotania has not violated the Conventions, as its treatment of the Adovans constituted neither torture nor cruel treatment [Pleadings ?10-15]. B. Rotania’s treatment of the detainees was consistent with customary international law. 20. Rotania accepts that torture is prohibited under international law; however, customary

international law defines torture narrowly. Although some international instruments prohibit torture without providing any definition, the most relevant and specific treaties provide a limited and precise definition of torture. The leading definition of torture, provided by the Torture Convention, requires the infliction of “severe” pain or suffering.60 Similarly, the Rome Statute of

57

Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 609 at Article 1.2 [Protocol II].
58

Vienna Convention on the Law of Treaties, 27 January 1980, 1155 U.N.T.S. 331 at Article 27; Borelli, supra note 56.
59 60

High Commission Press Release, supra note 56; Borelli, supra note 56. Torture Convention, supra note 34 at Article 1. 13

the International Criminal Court also requires the infliction of “severe” pain or suffering when defining the crime of torture.61 The International Criminal Tribunal for the Former Yugoslavia, while interpreting torture more broadly than the Torture Convention, also maintained a requirement for severe pain or suffering.62 Publicists similarly indicate the high threshold for a finding of torture; conduct found to constitute torture under customary international law includes such brutal treatments as rape, electrocutions, and amputations.63 State practice similarly shows that numerous states forbid the practice of torture without defining it; of those states that do define torture, most require severe pain or suffering for a practice to constitute torture.64 For example, the United States, in its response to the terrorist attacks of September 11, went as far as to limit the definition of torture to the infliction of severe pain or suffering of the kind associated with severe injury, organ failure or death.65 While Rotania would not go this far, defining torture narrowly is essential; states must not be prevented from using sufficiently firm interrogation techniques to obtain information to prevent terrorism and the loss of human life. The

61

Rome Statute of the International Criminal Court, 17 July 1998, U.N. Doc. A/conf.183/9th, at Article 7, para. 2(e) [Rome Statute].
62

Prosecutor v Kunarac, (2002), Case No. IT-96-23-T (International Criminal Tribunal for the Former Yugoslavia Trial Chamber).
63

Kriangsak Kittichaisaree, International Criminal Law, (Oxford: Oxford University Press 2003).

64

Canada, LOAC Manual (1999);US, Field Manual (1956); France, LOAC Summary Note (1992) at s.3.2.
65

Memorandum from Jay S. Bybee to Alberto Gonzales, Standards of Conduct for Interrogation under 18 U.S.C. §§. 2340-2340A (Aug. 1, 2002).

14

international prohibition on torture was intended to prevent the most egregious acts; it should not be invoked against any unpleasant interaction with the state.66 21. Rotania did not inflict severe pain or suffering on the Adovan detainees. The techniques

Rotania authorized, such as the use of sleep deprivation and exposure to loud music, are intended only to produce discomfort or unpleasantness. These techniques do not cause the severity of pain or suffering necessary for a finding of torture and are considerably milder than those acts found to constitute torture under customary international law. Without the required element of the infliction of severe pain or suffering, Rotania’s conduct toward the Adovan detainees cannot be considered torture. III. IN ANY EVENT, ROTANIA’S PROSECUTION OF SAMARA PENZA AND THE OTHER LAPS MEMBERS BEFORE ITS MILITARY COMMISSION FOR ACTS COMMITTED AGAINST ROTANIAN CITIZENS AND AGAINST ROTANIAN RELIGIOUS AND CULTURAL INSTITUTIONS IS CONSISTENT WITH INTERNATIONAL LAW. A. Rotania's right to prosecute is not invalidated by prior treatment of LAPS members. i. Rotania has a right to prosecute LAPS members under the territorial principle. 22. It is an undisputed principle of international law that a state has jurisdiction to prosecute

acts that occur within the state’s territory.67 As the acts for which the LAPS members are being prosecuted were committed against Rotanian religious and cultural institutions within the state of Rotania, Rotania has the right to prosecute under international law. This right of prosecution was recognized by the Security Council in Resolution 2233 [Compromis Appendix I].

66

Omer Z. Bekerman, “Torture - The Absolute Prohibition of a Relative Term: Does Everyone Know What is in Room 101?” (2005) 53 Am. J. Comp. L. 743.
67

Ian Brownlie, Principles of Public International Law 6th ed. (Oxford: Oxford University Press, 2003) at 299.

15

ii. This right has not been invalidated. 23. The doctrine of male captus, bene detentus is accepted by international tribunals,68

domestic courts69 and publicists70 to distinguish between the manner of apprehension and the subsequent exercise of jurisdiction. Potential state responsibility in the manner of apprehension does not invalidate the state's subsequent exercise of jurisdiction over the person apprehended. Although some courts have suggested that serious and egregious violations of the accused's rights may cause courts to dismiss cases, any dismissal remains discretionary.71 A court's decision to exercise this discretion involves balancing the seriousness of the accused crime with the prosecution's misconduct,72 and setting aside jurisdiction is generally disproportionate.73 For example, in United States v. Toscanino,74 (“Toscanino”) only the extreme torture of the accused by flushing his eyes, nose and anal passage with alcohol, and electrocuting his ears, toes, and
68

Prosecutor v. Rwamakuba (2000), Case No. ICTR-98-44-T (International Criminal Tribunal for Rwanda, Trial Chamber I) at para. 30.
69

Frisbie v. Collins, 342 U.S. 655 (1952) at 522; United States v. Alvarez-Machain, 505 U.S. 655 (1992) at 661-662; Attorney-General of Israel v. Eichmann (1962), 36 I.L.R. 277 (Israel Sup. Ct.) at para. 41 [Eichmann]; Re Argoud, (1964) 45 I.L.R. 90;Re Hartnett [1973] 1 O.R. (2d) 206-207 (C.A.). Ian Brownlie, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press,1998) at 320; Malvina Halberstam, “Agora: International Kidnapping In Defence of the Supreme Court Decision in Alvarez Marchain” (1992) 86 A.J I.L.736-738. Prosecutor v. Lubanga, (ICC) Case No.01/04-01/06 (OA4) at para. 28; R v. Horseferry Road Magistrates' Court, ex parte Bennett (1993), [1994] A.C. 42 (H.L.) [Ex parte Bennett]; R v. Latif [1996] 1 W.L.R. 104 [Latif]; Kriangsak Kittichaisaree, supra note 63 at 296.
72 71 70

Latif, ibid; Extraordinary Chambers in the Cts of Cambodia: Provisional Detention Order Against Kaing Guek Eav "Duch" (2007) 46 I.L.M. 913 at para. 20.
73

Prosecutor v. Dragan Nikolic, (2003) Case No. IT-94-2-AR73 (International Criminal Tribunal for the Former Yugoslavia Appeals Chamber) at para.30.
74

United States v. Toscanino, 500 F. 2d 267 (2d Cir.1974).

16

genitals, would have been sufficient to divest the court of jurisdiction over the charges of importing and distributing narcotics. 24. Since international law does not prohibit Rotania from exercising jurisdiction [Pleadings

?23], any prior treatment of the LAPS members cannot be considered a bar to Rotania's right to prosecute. Rotania has sole discretion to refuse jurisdiction over the LAPS members. Even if this discretion was subject to international review, the alleged misconduct by the state does not reach the level of that in Toscanino75 and the seriousness of the crimes of murder and decimation of Rotania's holiest sites [Compromis ?18, 21] justifies Rotania's decision to retain jurisdiction over these crimes. B. A declaration by this Court relating to the Rotanian Military Commission prosecutions before they have taken place is premature. 25. Impugned procedures and legislation must be evaluated in a factual context76 following

the application of all local remedies.77 The factual context requires that specific incidents and facts must be cited to support alleged violations of judicial guarantees.78 Speculative and uncertain allegations based on contingencies will not be considered.79 The onus is on the party alleging a violation to present clear and specific examples, as bias or defect in the procedures

75 76

Ibid. at 74.

Fals Borda v. Colombia, Comm. No. 46/1979, UN Doc. CCPR/C/OP/1, at 139 at para. 13.3 [Fals Borda]; G.S. v. Jamaica. Comm. No. 329/1988, UN Doc. A/43/40 [G.S.] at para. 14.51.
77

Case Concerning Avena and other Mexican Nationals (Mexico v. U.S.) 43 I.L.M. 581 (I.C.J.2004) [Mexico v.U.S.].
78 79

Fals Borda, supra note at 76 at para. 13.3; G.S., supra note 76 at para. 14.51. Mexico v. U.S., supra note 77 at para. 4.18.

17

will not be assumed.80 Furthermore, all local remedies must be exhausted before procedures under legislation can give rise to an international claim,81 as municipal courts must be afforded an opportunity to give meaning to the impugned legislation.82 For example, in the Avena case, this Court dismissed the premature application of Mexican nationals alleging breach of an international convention, because all possibility for review had not yet been considered.83 Any declaration given by this Court in the absence of specific facts and prior to exhaustion of local remedies would be premature. 26. At this time, no trials have been conducted by the Rotanian Military Commission

(“RMC”). There is no factual basis on which to evaluate the prosecutions before the RMC, and Adova has not met its burden of providing clear and specific evidence to the Court. Furthermore, there is no suggestion that normal appellate procedures will not apply to RMC decisions. Thus, it is possible that any potential shortcomings could be addressed by Rotanian appellate courts, and procedural defects cured. Since no specific inconsistencies with international law can be cited, and there is potential for curing any procedural defects, a declaration by this Court at this time would be premature. C. Moreover, Adova cannot argue that the procedures of the Rotanian Military Commission are inconsistent with international law. i. The procedures are not inconsistent with customary international law.

80 81 82 83

G.S., supra note 76 at para. 14.51. Mexico v. U.S., supra note 77 at para. 113. ICCPR, supra note 50 at Article 41 s.1(c). Mexico v. U.S., supra note 77 at para. 113.

18

27.

Although international law recognizes the right to a fair trial, the mandatory procedural

components of the trial are unsettled. This general right has been described as “all necessary rights and means of defence”,84 “judicial guarantees recognized by civilized peoples”,85 and “fundamental principles of fair trial including the presumption of innocence”.86 State practice as reflected in the U.N. General Assembly resolution on measures to eliminate international terrorism, confirms that a fair trial generally requires trial by a duly established procedure in accordance with relevant provisions of domestic law.87 These procedural rights can be as minimal as the presumption of innocence, the accuseds' right to be present at their trial and freedom from compulsion to testify against oneself.88 28. Rotania accepts that evidence obtained through torture is inadmissible at trial;89 however,

there is no requirement that defendants be allowed to challenge this evidence, although the state may bear the burden of proving that statements are given freely by witnesses90 and the court may

84 85 86 87 88 89

Protocol II, supra note 57 at s.2(a). Geneva Conventions, supra note 55 at Article 3. General Comment No.29, supra note 50 at paras. 11, 16. Terrorism Declaration, supra note 2. Protocol II, supra note 57 at Article 6(2).

S. Chernichenko & W. Treat, The Right to a Fair Trial: Current Recognition and Measures Necessary for its Strengthening, Final Report. UN Doc.E/CN.4/Sub.2/1994/24 at para.140; Commission on Human Rights, Draft Third Optional Protocol to the ICCPR, Aiming at Guaranteeing Under All Circumstances the Right to Fair Trial and a Remedy, Annex I, in: The Administration of Justice and the Human Rights of Detainees, The Right to a Fair Trial: Current Recognition and Measures Necessary for Its Strengthening, HRC, 46th Sess. UN Doc. E/CN.4/Sub.2/1994/24. General Comment No. 32, HRC UN Doc. CCPR/C/GC/32 (2007) at para. 41; Concluding Observations of the Human Rights Committee, Romania, UN. Doc. CCPR/79/Add.111(1999) at para. 13. 19
90

have a duty to inquire whenever there is a potential that evidence is obtained through torture.91 By contrast, the right to choice of counsel is not recognized by certain international conventions,92 is derogable in others,93 and is not consistently recognized by international organizations94 and publicists. 95 As documented by the Red Cross,96 some military manuals provide for counsel of the accused's own choice,97 while others do not.98 As international conventions, the practice of international organizations, publicists and state practice are divided, international law does not require defendants to be given a choice of legal counsel. Similarly, international conventions outlining fair trial components do not prohibit admission of

91

A. and others v. Secretary of State for the Home Department (2004), [2005] 3 W.L.R. 1249 (H.L.) at paras. 98, 145. Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) at Article 47; Protocol II, supra note 57 at Article 6. ICCPR, supra note 50 at Article 4.

92

93 94

Chernichenko & Treat, supra note 89 at para. 140; Inter-Am. Comm. H.R., Report on Terrorism and Human Rights of October 22, 2002, OEA/Ser.L/V/II.116/doc.5 rev.1.corr at para. 69 [Report on Terrorism].
95

Commission on Human Rights, Declaration of Minimum Humanitarian Standards, reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session, UN Doc. E/CN.4/1995/116 (1995).
96

Marie Henckaerts & Louise Dowald-Beck, eds., International Committee of the Red Cross: Customary International Humanitarian Law, vol.2, part 2 (Cambridge: Cambridge University Press, 2006) at 2435-2438. Argentina, Law of War Manual (1969) at s.3.30; Australia, Defence Force Manual at s.1042(d); Canada, LOAC Manual (1981) at s.57; Colombia, Instructors' Manual (1999) at 11; UK, Military Manual (1958) at s.227; US, Field Manual (1956) at s.330. Ecuador, Naval Manual (1989) at s.11.8.1; Germany, Military Manual (1992) at s.725; Hungary, Military Manual (1992) at 92; New Zealand, Military Manual (1992); Joint Circular on Adherence to IHL and Human Rights of the Phillippines (1991) at s.2(b)(2); Spain, LOAC Manual (1996); Switzerland, Basic Military Manual (1987) at Article 106.
98 97

20

anonymous testimony or require the prosecution to disclose sources of evidence.99 Furthermore, as long as general fair trial rights are respected, trial by military commissions is permissible.100 29. The RMC was established pursuant to the Protection of the State Act of 1980, which

provides the legal procedures for prosecution [Compromis ?25, 26]. The inability of the LAPS members to challenge evidence from coercive interrogations [Compromis ?26] does not affect the legality of the procedures. As trials have not yet taken place, it is possible that the prosecution could be required to disprove any potential coercion, and such defects in the evidence could be challenged by the Commission. Additionally, in assigning military lawyers to the Adovan citizens, allowing witnesses to testify under conditions of anonymity and maintaining confidentiality over sources of evidence [Compromis ?26], Rotania has not acted inconsistently with international law. ii. The procedures are not inconsistent with conventional international law. a. The Geneva Conventions do not prohibit trial by the RMC. 30. The Geneva Conventions only apply to situations of armed conflict [Pleadings ?18].

Additionally, even in an armed conflict, prisoners of war who are not part of the armed forces of a state cannot rely on Geneva Convention III protections if they breach the laws of war101 by targeting religious buildings that are not military objectives;102 the prisoners would benefit only

99

Protocol II, supra note 57 at Article 6; ICCPR, supra note 50 at Article 14.

General Comment No.13, HRC, 21st Sess. UN Doc. HRI/GEN/1/Rev.1 at 14 (1994) at para. 4; Sub-Commission, supra note 50; Siracusa Principles, supra note 50 at s.70(f); Fals Borda, supra note 76 at paras. 9.2, 13.3.
101 102

100

Geneva Convention III, supra note 55 at Articles 4A(1), 4A(2)(d).

Protocol I Additional to the Geneva Convention of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8 1977, 1123 U.N.T.S. 3. at Article 85(4)(d). 21

from the minimal guarantees of Article 3(d) of the Geneva Conventions, 103 which is customary international law.104 31. The Geneva Conventions do not apply to Rotania in this situation as this is not an armed

conflict [Pleadings ?19]. Even if the Geneva Conventions were applicable, the LAPS members cannot rely on Geneva Convention III procedural requirements as they were involved in the desecration of Stovian cultural and religious sites [Compromis ?18, 21]. As RMC procedures are consistent with fair trial guarantees recognized by customary international law [Pleadings ?29], these procedures are also consistent with Rotania's potential Geneva Convention obligations. b. The ICCPR does not prohibit trial by the RMC. 32. Although the ICCPR prescribes specific fair trial procedures,105 Article 4 provides that

these procedures are derogable whenever public emergency threatens the life of a nation [Pleadings ?16]. As long as this emergency is officially proclaimed, derogation is permissible as required by the situation,106 the extent of which is to be determined objectively.107 For example, Spain limits the choice of legal counsel for persons accused of acts of terrorism or suspected of collaborating with such persons, as counsel could provide a means for the accused to perpetuate

103 104 105 106

Geneva Conventions, supra note 55 at Article 3(d). Hamdan v. Rumsfeld, 548 U.S.___(2006) at 70. ICCPR, supra note 50 at Article 14.

ICCPR, supra note 50 at Article 4; General Comment No. 29, supra note 50 at paras. 2-4; Sub-Commission, supra note 50 at para.70; Siracusa Principles, supra note 50.

107

General Comment No. 31, HRC, 18th Sess., UN Doc.CCPR/C/21/Rev.1/Add13 (2004) at para. 6.

22

further terrorist activities.108 Similarly, in light of the September 11 attacks on the United States, President Bush determined that it would be impracticable to apply principles of law and rules of evidence generally recognized in the trial of criminal cases in Unites States district courts.109 33. The gravity of the situation caused by the decimation of Rotania's holiest churches

created an emergency situation that was officially proclaimed [Compromis ?25, Clarification ?2] and recognized by the U.N. Security Council [Compromis Appendix I]. In order to quell the threat of further devastation and associated deaths, it is necessary to prevent the LAPS members from directing further attacks by using their lawyers as messengers. A fair defence is preserved by appointing military lawyers to individual defendants [Compromis ?26]; indeed, no evidence of incompetence or bias of these lawyers has been tendered. Additionally, the limitation on challenging evidence [Compromis ?26] can be addressed by allocating the burden of proof to the state and can also be considered by the judges when assigning weight to the associated evidence; it does not affect the fairness of the trial [Pleadings ?28, 29]. Thus, Rotania's derogation from ICCPR trial requirements is justified under Article 4, and the RMC procedures are consistent with Rotania's conventional obligations under the ICCPR. IV. ADOVA’S EXERCISE OF JURISDICTION OVER KIRGOV AND VINITSA IS IN VIOLATION OF INTERNATIONAL LAW. A. Adova’s assertion of jurisdiction over Kirgov and Vinitsa is a violation of their immunity under customary international law. 34. The doctrine of ratione materiae immunity protects all state agents acting in their official

capacity from being held accountable by another state for those acts.110 Since official acts are
108

Concluding Observations of the Human Rights Committee, Spain, UN Doc. CCPR/C/79/Add.61(1996) at para. 18.

109

Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism 66 Fed. Reg. 58, 883 (2001) §1(f).

23

legally imputable to the state only, ratione materiae immunity for official acts does not cease when state agents are discharged from their official capacity.111 While some municipal courts have recently questioned the scope of ratione materiae immunity, this has only been for certain particularly serious offences such as genocide, war crimes and crimes against humanity.112 Moreover, this Court recently confirmed that former state officials may only be held accountable for acts committed in a private capacity while they were in office,113 reaffirming that immunity continues to cover all official acts undertaken while in office.114 35. Kirgov and Vinitsa are charged with offences under Adovan statutes implementing the

Torture Convention. As all of Kirgov and Vinitsa’s acts in respect of both the apprehension and detention of Penza and the other LAPS members were carried out in their official capacities as Head of State and military officer, Adova’s attempt to hold Kirgov and Vinitsa accountable for these acts in Adovan courts is a violation of their ratione materiae immunity under customary international law. Moreover, since all of the acts related to the apprehension and detention were consistent with international law [Pleadings ?10-21], Adova is without grounds to argue that ratione materiae immunity should be lifted. Even if the acts in respect of the detention of the

110

Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) at 266 [Cassese, International Criminal Law]. Ibid.; Torsten Stein, “Limits of International Law Immunities for Senior State Officials in Criminal Procedure”, in C. Tomuschat & J.M. Thouvenin, eds., The Fundamental Rules of the International Legal Order (Boston: Brill Publishers, 2006) at 257. Steffen Wirth, “Immunity for Core Crimes? ICJ’s Judgment in the Congo v. Belgium Case” (20020) 13 E.J.I.L.877 at 888; Cassese, International Criminal Law, supra note 110 at 267. Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), 2002 I.C.J. 3 at para. 61 [Arrest Warrant]. Torsten Stein, supra note 111 at 261.

111

112

113

114

24

prisoners were found to be cruel and inhuman treatment under the Torture Convention, such acts do not amount to the type of serious human rights violations for which the denial of ratione materiae immunity has been permitted. Further, in the event that the treatment of the detainees is found to constitute torture, the mistreatment of one specific group of prisoners for less than a month [Compromis ?33] does not constitute the type of widespread and systematic torture for which ratione materiae immunity has been lifted.115 B. In any event, Adova’s assertion of jurisdiction over Kirgov and Vinitsa for the treatment of the prisoners outside Adovan territory is impermissible under international law. i. The acts of Kirgov and Vinitsa do not constitute an offence for which customary or conventional international law permit the exercise of jurisdiction based on universal jurisdiction or the passive personality principle. 36. Under customary international law the permissibility of universal jurisdiction is

contingent upon the existence of an offence of such gravity and magnitude that it warrants universal prosecution and repression.116 Similarly, jurisdiction based on the passive personality principle, considered the least justifiable of the various bases of jurisdiction,117 is only permissible for certain serious offences, such as war crimes, terrorism and crimes against

115

R. v. Bow Street Magistrate, ex parte Pinochet Ugarte (No. 3) [2000] 1 A.C. 147 (H.L.) at 190.

Eichmann, supra note 69 at 304; Matter of Extradition of Demjanjuk, 612 F.Supp.544 (N.C. Ohio 1985) at 556; “The Princeton Principles on Universal Jurisdiction” in Stephen Macedo ed., Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia: University of Pennsylvania Press, 2004) at Principles 1.1,1(2), 2(1).
117

116

I. Brownlie, Principles of Public International Law 6th ed., supra note 67 at 302; Geoffrey Watson, “The Passive Personality Principle” (1993) 28 Texas Int. Law Journal 1 at 2; Harvard Law School, “ Jurisdiction With Respect to Crime” (1935) 29 A.J.I.L. Supp. 435 at 579; Claire de Than and Edwin Shorts, International Criminal Law and Human Rights, (London: Sweet Maxwell, 2003) at 44.

25

humanity.118 Moreover, Article 5 of the Torture Convention only authorizes a state to exercise jurisdiction based on universality or passive personality for acts of torture and does not provide any authority for a state to exercise jurisdiction for acts of cruel, inhuman or degrading treatment. 37. As these acts were committed outside of Adova by non-Adovans, the only bases of

jurisdiction available to Adova are universal jurisdiction and jurisdiction based on the passive personality principle. These two bases of jurisdiction are inapplicable as Penza and the other LAPS members were at all times treated in a manner consistent with international law [Pleadings ?10-21]. Since the treatment of the detainees did not constitute torture [Pleadings ?11, 21], Adova cannot assert its jurisdiction under the passive personality principle or universality principle on the basis of this offence. Even if the treatment constituted cruel and inhuman treatment, Adova has no grounds to assert jurisdiction. The Torture Convention does not provide any authority to assert jurisdiction over such offences, and mere discomfort resulting in no permanent injury [Pleadings ?11] does not constitute the type of heinous offence for which universal jurisdiction or jurisdiction based on the passive personality principle is justified under customary international law. Moreover, Adova has no grounds to assert its jurisdiction over Kirgov as there is no evidence that he knew of, or was in any way complicit in, the manner in which the prisoners were treated. ii. Additionally, Adova’s exercise of universal jurisdiction is premature.

118

American Legal Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987) at § 402; Watson, ibid at 14.

26

38.

Given the invasive nature of universal jurisdiction, international law limits its application

to a subsidiary form of jurisdiction. Publicists119 and jurists120 confirm that universal jurisdiction is only permissible where the territorial state and the state of active nationality fail to take action. In particular, Article 5 of the Torture Convention reflects the subsidiary nature of universal jurisdiction for torture offences. Article 5(1) requires that a state establish its jurisdiction over torture offences if the offence was committed within its territory and when the alleged offender is a national of the state. Article 5(2) requires a state to “take such measures as may be necessary” to establish its jurisdiction over the offence when an alleged offender is in its territory only if it chooses not to extradite to one of the states mentioned in Article 5(1). Publicists121 and jurists122 have interpreted these two paragraphs as indicating that universal jurisdiction is only permitted in the event that the territorial state or state of active nationality does not exercise jurisdiction. 39. Adova has charged Vinitsa and issued an arrest warrant for Kirgov, without first

providing either Rotania or Merkistan the opportunity to act on the charges, and in the face of protest from Rotania [Compromis ?41]. As both Kirgov and Vinitsa are nationals of Rotania and the alleged mistreatment of the prisoners occurred in Merkistan, Adova’s exercise of jurisdiction is premature and in violation of international law.
119

Antonio Cassese, “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction” (2003) 1 J. Int’l Crim. Just. 589 at 593 [Cassese, “Bell Tolling”]; Claus Kress “Universal Jurisdiction over International Crimes and the Institut de Droit International” (2006) 4 Journal of International Criminal Justice 561 at 580. Arrest Warrant, supra note 113 (Sep. Op. J. Rezek) at para. 4 [Sep.Op J. Rezek], (Sep.Op. J. Higgins, Kooijmans & Buergenthal) at para. 59 [Sep.Op. Higgins et al.]. Cassese, “Bell Tolling”, supra note 119 at 593-94.

120

121 122

Case Concerning Certain Criminal Proceedings in France (Republic of Congo v. France), [2003] I.C.J. Rep. 102. (J. De Cara dissent) at 120-121. 27

iii. Moreover, Adova’s exercise of universal jurisdiction over Kirgov in absentia violates international law. 40. State practice,123 publicists124 and members of this Court125 have confirmed that

international law requires that the accused be present in a state’s territory as a precondition to the exercise of universal jurisdiction, and does not permit its exercise in absentia. This precondition to universal jurisdiction is also reflected in conventional international law126 and in the domestic legislation of several states.127 Even those judges from this Court in the Yerodia case that felt universal jurisdiction in absentia may be possible, held that certain safeguards would be required Bundesgerichtshof, 13 February 1994, 1 BGs 100.94, in Neue Zeitschrift für Strafrecht 1994, in Arrest Warrant, supra note 113 (Sep. Op. Guillaume) at para. 12 [Sep. Op. Guillaume]; Hoge Raad, 18 September 2001, in Arrest Warrant, supra note 113, Sep.Op. Guillaume at para. 12; Re Javor, Cass. Crim., 26 March 1996, Bull.crim.1996. II. 379, No. 132.,93 A.J.I.L. 525.
124 123

Cassese, “Bell Tolling”, supra note 119 at 592-93; Luc Reydams, Universal Jurisdiction, International and Municipal Legal Perspectives (Oxford: Oxford University Press 2003) at 224, 230; J. Verhoeven, “Vers un ordre répressif universel? Quelques observations” (1999) 55 Annuaire Fran?ais de Droit International at 62-63.

Arrest Warrant, supra note 113, Sep. Op. Guillaume at para. 16, Sep. Op. J. Rezek at paras. 910, (Sep. Op. J. Ranjeva) at paras.10-12. Arrest Warrant, ibid., Sep. Op .Guillaume at para. 9; Unlawful Seizure of Aircraft Convention, supra note 4 at Article 4(2); Safety of Civil Aviation Convention, supra note 4 at Article 5(2); Convention Against the Taking of Hostages, supra note 4 at Article 5(2); Convention on the Protection of Nuclear Material, supra note 4 at Article 8(2); Torture Convention, supra note 34 at Article 5(2); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March 1988, 1678 U.N.T.S. 221 at Article 6(4); Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, 2051 U.N.T.S. 363 at Article 10(4); International Convention for the Suppression of Terrorist Bombings, 15 December 1997, U.N. Doc. A/RES/52/164; 37 I.L.M. 249 (1998) at Article 6(4); International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, U.N. Doc. A/RES/54/109; 39 I.L.M. 270 (2000) at Article 7(4); United Nations Convention against Transnational Organized Crime, 15 November 2000, GA Res. 25, UN GAOR, 55th Sess., Supp. No. 49, UN Doc A/45/49 at Article 15(4).
127 126

125

Art. 689-1 C. pén; Crimes Against Humanity and War Crimes Act, S.C. 2000, c.24, s.8(b); Amnesty International, “Universal Jurisdiction: The duty of states to enact and implement legislation” AI Index IOR 53/013/2001 at Ch.4, Part A.

28

in order to make it permissible, including that the state wishing to assert universal jurisdiction would have to first offer to the state of active nationality the opportunity to act on the charges.128 41. By issuing an arrest warrant for Kirgov in absentia, Adova overreached the permissible

bounds of universal jurisdiction and violated international law. Furthermore, since Adova did not give Rotania the opportunity to act first on the charges, Adova’s assertion of jurisdiction would be viewed as impermissible even by those judges of the Court who felt the exercise of universal jurisdiction in absentia may theoretically be permissible under certain conditions. PRAYER FOR RELIEF For the foregoing reasons, the Respondent, Rotania, respectfully requests that this honourable Court DECLARE that: a) Rotania was entitled under international law to apprehend and render Samara Penza and the other LAPS members from Adova; b) Samara Penza and the other LAPS members were at all times detained and treated in a manner consistent with international law; c) In any event, Rotania may prosecute Samara Penza and the other LAPS members before its Military Commission for acts committed against Rotanian citizens and against Rotanian religious and cultural institutions; and d) Adova’s exercise of jurisdiction over President Kirgov and General Vinitsa is in violation of international law.

128

Arrest Warrant, supra note 113, Sep. Op. Higgins et al. at para. 59. 29


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