i

THE CASE OF NORTH MANCONIA

(REPUBLIC OF NORTH MANCONIA V. UNITED STATES OF MERSEYSTAN)

MEMORIAL SUBMITTED BY

REPUBLIC OF NORTH MANCONIA

(APPLICANT)

REGISTRATION NUMBER:

15-II
 ii

(a) TABLE OF CONTENTS

(a) Table of Contents

(b) List of Abbreviations

(c) List of Sources

(d) Statement of Relevant Facts

(e) Issues

(f) Summary of Arguments

(g) Jurisdiction of Court

(h) Argument
 iii

(b) LIST OF ABBREVIATIONS

All ER All England Law Reports (England & Wales)

AC Law Reports, Appeal Cases (Third Series) (England & Wales)

Art. Article

ASR International Law Commission Articles on the International Responsibility of

States For Wrongful Acts

C.C.X Telders Case 2012 Clarifications, paragraph X

C.X Telders Case 2012, paragraph X

Diss. Op. Dissenting Opinion

ECJ Court of Justice for the European Communities

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

edn. Edition

ed(s) Editor(s)

GA Res. General Assembly resolution

HRC Human Rights Committee

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICJ International Court of Justice

 iv

ICTY International Tribunal for the Prosecution of Persons Responsible for Serious

Violations of International Humanitarian Law Committed in the Territory of

Former Yugoslavia since 1991

ILC International Law Commission

ILR International Law Reports

MCBD Male captus bene detentus

MCMD Male captus male detentus

Mr. Neville N

No(s). Number(s)

p(p). page(s) number(ed)

Para(s). Paragraph(s)

PCIJ Permanent Court of International Justice

R. Rex/regina

RNM Republic of North Manconia

SC Res./SCR Security Council resolution

Sep. Op. Separate Opinion

UK United Kingdom

UKHL United Kingdom House of Lords [neutral citation]

UN United Nations

US/USA United States of America

 v

USM United States of Merseystan

v. Versus

vol. Volume

UJ Universal Jurisdiction
 vi

(c) LIST OF SOURCES

1. AWARDS BY COURTS AND TRIBUNALS

1.1 Permanent Court of International Justice

Acquisition of Polish Nationality Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 7 (Sept. 15) hereafter
cited as Polish Nationality

Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), PCIJ, Series A, No. 13, 1927;
hereinafter cited as Interpretation of Judgments (Chorzów Factory) hereinafter cited as Chorzów
Factory

Mavrommatis Palestine Concessions Case, 1924 PCIJ, (ser.A) No.2 hereinafter cited as
Mavrommatis

The Case of the SS Lotus (1928) PCIJ (Series A) No 10, hereinafter cited as Lotus

1.2 International Court of Justice

Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 325; hereinafter cited as
Bosnian Genocide, Provisional Measures

Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Preliminary Objections, Judgment, ICJ Reports 1996, p. 595; hereinafter cited as Bosnian
Genocide, Preliminary Objections

Case concerning the Arrest Warrant of 11 April 2000, 11 April 2000 (Democratic Republic of
Congo v. Belgium) hereinafter cited as Arrest Warrant

Corfu Channel Case (Merits), 'Judgement', 9 April 1999, hereinafter cited as Corfu Channel

Gabčíkovo-Nagymaros Project (HungarylSlovakia), Judgment, ICJ Reports 1997, p. 7; hereinafter

cited as Gabčíkovo-Nagymaros
LaGrand case (Germany v. United States of America), Judgment of 27 June 2001 hereinafter cited
as LaGrand

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, ICJ Reports 1986, p. 14; hereinafter cited as Nicaragua.

Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Further Requests for the Indication
of Provisional Measures, 13 September 1999, 1993 ICJ Reports, p.325 hereinafter cited as Bosnia
and Herzegovina v. Yugoslavia (1999)

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro) ICJ Reports 2007 hereinafter cited as Bosnia and
Herzegovina v. Serbia and Montenegro (2007)

United States Diplomatic and Consular Staff in Tehran case, ICJ Reports 1980, p. 21; hereinafter
cited as Iranian Hostages 1.
 vii

United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Merits, 1980 ICJ REP. 3
hereinafter cited as Iranian Hostages 2.
1.3 ICC, ICTY, and ICTR
Akayesu ICTR-96-4; Trial Chamber judgment 2/9/1998 hereinafter cited as Akayesu

Blaskic (subpoena) 31 ICTY Appeals Chamber's judgment of 29 October 1997 hereinafer cited as
Blaskic (subpoena)

Kayishema & Ruzindana (ICTR-95-1; Trial Chamber judgment 21/5/1999) hereinafter cited as
Kayishema

Krstic ( ICTY Appeals Chamber judgment 19/4/2004) hereinafter cited as Krstic Appeals

Krstic (ICTY Trial Chamber judgment 2/8/2001) hereinafter cited as Krstic Trial

Prosecutor v. Dragan Nikolic, 'Decision on Defence Motion Challenging the Exercise of

Jurisdiction by the Tribunal', Case No. IT-94-2-PT, 9 October 2002 (Trial Chamber) hereinafter
cited as Nikolic 1

Prosecutor v. Dragan Nikolic, 'Decision on Interlocutory Appeal Concerning Legality of Arrest',

Case No. IT-94-2-AR73, 5 June 2003 (Appeals Chamber) hereinafter cited as Nikolic 2

Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr.
Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the
Admissibility of the Case, ICC-01/04-01/07- 1497, 25 September 2009, hereinafter cited as
Katanga

Prosecutor v Blaskic, Appeals Chamber, 29 October 1997, Judgement on the Request of the
Republic of Croatia for Review of the Decision of Trial Chamber of 18 July 1997, hereinafter cited
as Blaskic

Second Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan
Ahmad Al Bashir, ICC PT Ch.I 12.07.2010 hereinafter cited as Omar Al Bashir

1.4 European Court of Human Rights

Al-Adsani v. The United Kingdom, [2001] ECHR 35763/97; hereinafter cited as Al-Adsani.

Illich Sanchez Ramirez v France (App no 28780/95) (1996) 86 DR 155, E Com HR, hereinafter
cited as Illich Sanchez Ramirez

Ocalan v. Turkey, 18 BHRC 293 (2005) hereinafter cited as Ocalan

Stocke v. Germany, 13 Eur. Ct. H.R. 839 (1991) hereinafter cited as Stocke

1.5 Human Rights Commission

Lilian Celiberti de Casariego v. Uraguay, Communication No.056/1979, views of 29 July 1981, UN

Doc. CCPR/C/OP/1 (1984) hereinafter cited as Lilian Celiberti

Lopez v Uruguay, Communication No R12/52, Decision of 29 July 1981 reproduced in 68

International Law Reports 29 hereinafter cited as Lopez
 viii

Maria del Carmen Almeida de Quinteros et al. v. Uruguay, Communication No.107/1981 (21 July
1983), UN Doc. CCPR/C/OP/2 hereinafter cited as Maria del Carmen

Sergio Ruben Lopez Burgos v. Uruguay, Communication No.R.12/52 (29 July 1981), UN Doc.
Supp. No. 40 (A/36/40) hereinafter cited as Sergio Ruben Lopez Burgos

1.6 Inter- American Court of Human Rights

Velasquez Rodriguez (Compensation), 95 I.L.R. 306, 314, P 25 (Inter-Amer. C.H.R. 1989)

hereinafter cited as Velasquez Rodriguez

Velasquez Rodriguez, IACtHR, Decision of 29 July 1988, 9 Human Rights Law Journal (1988) 212
hereinafter cited as Velsaquez Rodriguez (1988)

1.7 Permanent Court of Arbitration

Savarkar case, in 'Award of the Permanent Court of Arbitration in the Case of Savarkar, between
France and Great Britain, Feb. 24, 1911', American Journal of International Law 5, 1911, pp.520-
523 hereinafter cited as Savarkar

1.8 Awards by other international tribunals including arbitral awards

Chattin v United Mexican States (United States/Mexico) IV RIAA 282, 295 (1927) hereinafter cited
as Chattin

Parrish v United Mexican States (United States/Mexico) IV RIAA 314, 315-316 (1927) hereinafter
cited as Parrish

Prosecutor v. Tadic, Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1, 1995;
hereinafter cited as Tadic.

Prosecutor v. Furundzija, IT-95-17/1, Judgment of the 10 December 1998; hereinafter cited as

Furundzija

Rainbow Warrior case, 74 ILR 241 (arb. 1987) hereinafter cited as Rainbow Warrior

Spanish Zones of Morocco Claims (Spain/United Kingdom) II R.I.A.A. 615, 641 (1925) hereinafter
cited as Spanish Zones

Woodpulp (Ahlstrom Osakeyhtio v Commission, Cases 89/95 [1988] ECR 5193 hereinafter cited as
Woodpulp

1.9 Municipal Courts

Application for Arrest Warrant Against General Shaul Mofaz, First instance, unreported (Bow
Street Magistrates' Court) 12 February 2004 hereinafter cited as Mofaz

Attorney-General v Eichmann (1961) 36 ILR 5 68-71 (DC), (1962) 305-306 (Israeli Supreme
Court) hereinafter cited as Eichmann

Auto del Juzgado Central de Instucción No. 4 (2008) hereinafter cited as Auto del Juzgado
 ix

Barbie, Judgment of Oct. 6, 1983, Cass. crim., 78 I.L.R. 125, 131 (France) hereinafter cited as
Barbie

Beahan v Zimbabwe, 4 September 1991, International Law Reports, Vo.103 (1996), pp.203-224
(Zim.) hereinafter cited as Beahan

Bouzari v Islamic Republic of Iran 124 ILR 427 hereinafter cited as Bouzari

Dusko Cvjetkovic 15Os99/94, 13 July 1994 (German Supreme Court) hereinafter cited as Dusko
Cvjetkovic

Fiscal v Samper, 22 June 1934, Annual Digest and Reports of Public International Law Cases, Vol.9
(1938-1940), Case No.152, pp.402-405 (Spain) hereinafter cited as Fiscal

Frisbie v. Collins, 342 U.S. 519 (1952) hereinafter cited as Frisbie

German Bundesgerichtshof, Urteil vom. Apr. 30, 1999, 3StR 215/98 hereinafter cited as GB 1999

Ghaddafi case, Arrêt no. 1414 (2001), 125 ILR 456 (France: Cour de Cassation) hereinafter cited as
Ghaddafi

In Re Javor, Bull. Crim., 1996, No. 132 (France) hereinafter cited as In Re Javor

In re Jolis, 22 July 1933, Annual Digest and Reports of Public International Law Cases, Vol.7
(1933-1934), Case No.77, pp.191-192 (France) hereinafter cited as In Re Jolis

In Re Munyeshyaka, Bull. Crim., 1998, No. 2 (France) hereinafter cited as In Re Munyeshyaka

Jones v Saudi Arabia [2006] UKHL 26 hereinafter cited as Jones v Saudi Arabia

Ker v. Illinois, 119 U.S. 436 (1886) hereinafter cited as Ker

Levinge v Director of Custodial Services (1987) 27 A Crim R 163 (New Zeal) hereinafter cited as
Levinge

Plaintiffs A, B, C, D, E, F v. Jiang Zemin, 282 F Supp 2d 875 (ND Ill., 2003) hereinafter cited as
Jiang Zemin

Prosecutor v. 'The Butare Four', Assize Court of Brussels, Verdict of 8th June 2001 hereinafter cited
as The Butare Four

Public Prosecutor v. Jorgic, 26 September 1997 (Germany) hereinafter cited as Jorgic

Re Argoud, 4 June 1964, International Law Reports, Vol.45 (1972), p.106 (Court of Cassation
(Criminal Chamber), France) hereinafter cited as Re Argoud

Re Box Xilai 128 ILR (2005) 713 hereinafter cited as Re Box Xilai

Regina v. Horseferry Rd. Magis. Ct. (Ex parte Bennett), [1994] 1 A.C. 42 (U.K.) hereinafter cited as
Bennett

Re Sharon and Yaron, 42 ILM (2003) 596 (Belgium: Cour de Cassation) hereinafter cited as Re
Sharon and Yaron
 x

Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 (HL) hereinafter cited as
Rio Tinto Zinc Corp.

R v Hartley [1978] 2 NZLR 199 (New Zeal.) hereinafter cited as Hartley

R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte
(Amnesty International and others intervening) (No. 3) [2000] 1 AC 147; [1999] 2 All ER 97;
hereinafter cited as Pinochet (No.3)

R. v. Bow Street Magistrates, Ex parte Mackeson, 75 Crim. App. 24 1981 (U.K.) hereinafter cited as
Mackeson

R v Finta [1994] 1 S.C.R. 701, 811. (Canada) hereinafter cited as Finta

R v Mullen, [2000] Q.D. 520 (U.K Court of Appeal) hereinafter cited as Mullen

State v Ebrahim 95 I.L.R. 417 (South Africa 1992) hereinafter cited as Ebrahim
Swiss Tribunal federal of 30 July 1979

Tachiona v. Mugabe, 169 F Supp 2d 259 (SDNY 2001) hereinafter cited as Tachiona

Texaco v. Libyan Arab Republic, 53 I.L.R. 389, 497-508 (1977) hereinafter cited as Texaco

US v Aluminium Co of America, 148 F. 2d 416 (1945) hereinafter cited as Aluminium Co

United States v. Alvarez-Machain, 504 U.S. 655 (1992) hereinafter cited as Alvarez- Machain

United States v. Toscanino 500 F 2d 267 (1975) (U.S.) hereinafter cited as Toscanino

United States v. Yunis, 924 F.2d 1086, 1090 (D.C. Cir. 1991) hereinafter cited as Yunis

1.10 Domestic Legislation

French Penal Code 2005

German Penal Code 1998

Italian Criminal Code 1988

Swiss Penal Code 1937

War Crimes Act 1991, c.13, s.2 (UK)

War Crimes Amendment Act 1988, s.11 (Australia)

2. TREATIES

Charter of the United Nations, 1945

Convention Against Torture, 1984

Convention on Special Missions, 1969

Geneva Convention 1949

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Genocide Convention 1948

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966

Vienna Convention on the Law of Treaties, 1969

Vienna Convention on the Succession of States in respect of Treaties, 1978

Rome Statute for the International Criminal Court, 1998 hereinafter cited as Rome Statute

United Nations Convention on Jurisdictional Immunities of States and their Property, 2004
hereinafter cited as UN Immunities Convention

3. BOOKS

Cassese, A., International Criminal Law (2nd edn, 2008) hereinafter cited as Cassese, 2008

Evans (ed), International Law 3rd edn (Oxford : Oxford University Press, 2010), hereinafter cited
as Evans, 2010

Fox, H., The Law of State Immunity (Oxford: Oxford University Press. 2002) hereinafter cited as
Fox, 2002

Paulussen, C., Male captus bene detentus? Surrending suspects to the International Criminal Court,
Antwerp/Oxford/Portland: Intersentia, 2010 hereinafter cited as Paulussen, 2010

Rodley, N.S., The Treatment of Prisoners Under International Law, Clarendon Press: Oxford, 1999
hereinafter cited as Rodley, 1999

Robert Jennings and Arthur Watts (eds.), Oppenheim‟s International Law, 9th Edition, Longman,
1992 hereinafter cited as Oppenheim

Schabas, W., Genocide in International Law: The Crime of Crimes, Cambridge: Cambridge
University Press, 2009 hereinafter cited as Schabas, 2009

4. ARTICLES IN BOOKS, JOURNALS OR ONLINE DATABASES

Akande, D., International Law Immunities and the International Criminal Court, 98 AJIL (2004)
407 hereinafter cited as Akande, 2004

Akande, D., Shah, S., Immunities of State Officals, International Crimes, and Foreign Domestic
Courts, EJIL Vol. 21 (4), 2011 hereinafter cited as Akande, 2011

Barker, ‘The Future of Former Head of State Immunity After Ex Parte Pinochet ’, 48 ICLQ (1999)
937 hereinafter cited as Barker, 1999

Bassiouni, C., International Extradition: United States Law and Practice, 1987, Vol.I hereinafter
cited as Bassiouni, 1987
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Bassiouni, C., 'The History of Universal Jurisdiction and Its Place in International Law', in
Universal Jurisdiction, S. Macedo (ed.), University of Pennsylvania Press: Philadelphia, 2003, 39-
63, pg. 56 hereinafter cited as Bassiouni, 2003

Bassiouni, C., and Wise, E., Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in
International Law, Dordrecht/Bostin/London: Martinus Nijhoff Publishers, 1995, pp.43-69
hereinafter cited as Bassiouni, 1995

Benavides, L., 'The Universal Jurisdiction Principle: Nature and Scope', Anuario Mexicano de
Derencho International, Vol.1, 2001, pp.32-36 hereinafter cited as Benavides, 2001

Bianchi, ‘Immunity Versus Human Rights: The Pinochet Case’, 10 EJIL (1999) 237 hereinafter
cited as Bianchi, 1999

Broomhall, B., International Justice and the International Criminal Court (2003) 130-131
hereinafter cited as Broomhall, 2003

Bush, J.A., 'How Did We Get Here? Foreign Abduction After Alvarez-Machain', Stanford Law
Review 45, 1992-1993, p.943 hereinafter cited as Bush, 1992

Byers, “Comment on Al Adsani v. Kuwait”, 67 British Yrbk Int’l L (1996) 537 hereinafter cited as
Byers, 1996

Cassese, A., 'Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal
Jurisdiction', JICJ 1 (2003), 589-95, pg. 593 hereinafter cited as Cassese, 2003

Clapham, A., ‘National Action Challenged: Sovereignty, Immunity and Universal Jurisdiction
before the International Court of Justice’ in Lattimer and Sands (eds) Justice for Crimes against
Humanity (Hart Publishing, Oxford, 2003 ) Chapter 12 hereinafter cited as Clapham, 2003

Costi, A., 'Problems with current international and national practices concerning extraterritorial
abductions', Revue Juridique Polynesienne 9, 2003, p.61 hereinafter cited as Costi, 2003

Currie, R., 'Abducted fugitives before the International Criminal Court: problems and prospects',
Criminal Law Forum, Vol. 18 (¾), 2007, pp.349-393, hereinafter cited as Currie, 2007

Denza, ‘Ex Parte Pinochet : Lacuna or Leap’, 48 ICLQ (1999) 949 hereinafter cited as Denza, 1999

De Schutter 'Competence of the National Judiciary Power in Case the Accused Has Been
Unlawfully Brought Within the National Frontiers', Revue Belge de Droit International 1, 1965,
p.123 herinafter cited as De Schutter, 1965

Fox, ‘The Resolution of the Institute of International Law on the Immunities of Heads of State and
Government’, 51 ICLQ (2002) 119. Hereinafter cited as Fox, 2002

Gaeta, ‘Official Capacities and Immunities’, in A. Cassese et al. (eds), Commentary on the
International Criminal Court (2002), at 975 hereinafter cited as Gaeta, 2002

Gallagher, ‘Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High
Level United States Officials Accountable for Torture’, 7 J Int'l Criminal Justice (2009) 1087
hereinafter cited as Gallagher, 2009

Garcia-Mora, 'Criminal Jurisdiction of a State over Fugitives Brought from a Foreign Country by
Force or Fraud: A Comparative Study', Indiana Law Journal 32, 1957, p.446 herinafter cited as
 xiii

Garcia-Mora, 1957

Hartmann, ‘The Gillon Affair’, 54 ICLQ (2005) 745 hereinafter cited as Hartmann, 2005

Harvard Research in International Law (1935) "Draft Convention on Jurisdiction With Respect to
Crime" 29 AJIL Special Supplement Part II 435, 623-624 hereinafter cited as Harvard Research

Horsington, H., 'The Cambodian Khmer Rouge Tribunal: The Promise of a Hybrid Tribunal',
Melbourne Journal International Law 5, 2004, p.462 hereinafter cited as Horsington, 2004

Inazumi, M., Universal Jurisdiction in Modern International Law: Expansion of National

Jurisdiction for Prosecuting Serious Crimes under International Law, Antwerpen, Oxford:
Intersentia, 2005, pp.149-150. Hereinafter cited as Inazumi, 2005

Inter-American Juridical Committee, Legal Opinion on the Decision of the U.S. Supreme Court in
the Alvarez-Machain Case, in 13 HRLJ 395, 397 (1992) hereinafter cited as Alvarez Machain
Legal Opinion, 1992

Jennings “The Caroline and McLeod Cases” 32 AJIL (1938) at 92-99 hereinafter cited as Jennings
1938

Kress, C., 'Universal Jurisdiction over International Crimes and the Institut de Droit international',
Journal of International Criminal Justice 4 (2006), 561-585 hereinafter cited as Kress, 2006

Loan, J., 'Soza v Alvarez-Machain: Extraterritorial Abduction and the Rights of Individuals under
International Law', ILSA J. Int'l & Comp L. 12, 2005, pp.253-300 hereinafter cited as Loan, 2005

Mann, F.A., 'Reflections on the Prosecution of Persons Abducted in Breach of International Law', in
Mann (ed) Further Studies in International Law, 1990 hereinafter cited as Mann, 1990

McNeal, G., and Field, B., 'Snatch-and-Grab Ops: Justifying Extraterritorial Abduction', Transnat'l
L. & Contemp. Probs. 16, 2006-2007 pp.491-522 hereinafter cited as McNeal, 2006

Michell, P., 'English-Speaking Justice: Evolving Responses to Transational Forcible Abduction

After Alvarez-Machain, Cornell International Law Journal 29, 1996, p.411 hereinafter cited as
Michell, 1996

Moore, J.; A Digest of International Law, vol.II (1906) hereinafter cited as Moore, 1906

Morgenstern, H., 'Jurisdiction in Seizures Effected in Violation of International Law', 29 BYIL,

1952, p.279 hereinafter cited as Morgenstern, 1952

Murphy, ‘Head-of-State Immunity for Former Chinese President Jiang Zemin’ in ‘Contemporary
Practice of the United States Relating to International Law’, 97 AJIL (2003) 962, at 974–977
hereinafter cited as Murphy, 2003

Orakhelashvili, ‘International Decisions: Arrest Warrant case’, 96 AJIL (2002) 677 hereinafter cited
as Orakhelashvili, 2002

Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got it Wrong’,
18 EJIL (2007) 955 hereinafter cited as Orakhelashvili, 2007

Orakhelashvili, ‘State Immunity in National and International Law: Three Recent Cases Before the
European Court of Human Rights’, 15 Leiden J Int'l L (2002) 703 hereinafter cited as
 xiv

Orakhelashvili, 2002

Orentlicher, D., 'The Future of Universal Jurisdiction in the New Architecture of Transnational
Justice', in Universal Jurisdiction hereinafter cited as Orentlicher, 2004

Ratner, S., 'Belgium's War Crimes Statute: A Postmortem', 97 American Journal of International
Law 888 (2003), pg. 892 hereinafter cited as Ratner, 2003

Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Prinz v. Federal
Republic of Germany’, 16 Michigan J Int’l L (1995) 403 hereinafter cited as Reimann, 1995

Restatement (Third) of Foreign Rel. Law of the United States 404 (1987) hereinafter cited as Third
Restatement

Slaughter, A., 'Defining the Limits: Universal Jurisdiction and National Courts', in Universal
Jurisdiction hereinafter cited as Slaughter, 2004

Stigen, J., 'The Relationship between the Principle of Complementarity and the Exercise of
Universal Jurisdiction for Core International Crimes', Complementarity and the Exercise of
Universal Jurisdiction for Core International Crimes, Forum for International Criminal and
Humanitarian Law Publication Series No. 7, M. Bergsmo (ed.), 2010, p.142 hereinafter cited as
Stigen, 2010

Swart, B., “La place des criteres tradtionnels de competence”, in A.Cassese/ M.Delmas- Marty,
Juridictions nationales et crimes internationaux (Paris: Peresses Universitaires de France, 2002),
562-87, at 575 hereinafter cited as Swart, 2002

Thalmann, V., 'National Criminal Jurisdiction over Genocide', The UN Genocide Convention, P
Gaeta (ed.), Oxford/New York: Oxford University Press, 2009, pp.244-247 hereinafter cited as
Thalmann, 2009

Zappala, S., ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International
Crimes? The Ghaddafi Case before the French Cour de Cassation’, 12 EJIL (2001) 595 hereinafter
cited as Zappala, 2001

Zappala, S., 'International Criminal Jurisdiction over Genocide', The UN Genocide Convention,
p.273 hereinafter cited as Zappala, 2004

5. RESOLUTIONS OF UN BODIE S

5.1 Resolutions of the United Nations Security Council

Statute of the International Criminal Tribunal of the Former Yugoslavia 1993 Security Council
Resolution 827 (1993), 25 May 1993 Hereinafter cited as ICTY Statute

Statute of the International Tribunal for Rwanda Security Resolution 977 (1995) 22nd February
1995 hereinafter cited as ICTR Statute

United Nations Security Council Resolution 138, UN Doc S/RES/138 (23 June 1960) hereinafter
cited as SCR 638 1989

United Nations Security Council Resolution 638, UN Doc S/RES/638 (31 July 1989) hereinafter
cited as SCR 638 1989
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5.2 Resolutions of the United Nations General Assembly

Declaration on Principles of International Law Concerning Friendly Relations and Co-operation

among States in Accordance with the Charter of the United Nations, United Nations General
Assembly Resolution 2625 (XXV) UN Doc A/5217 (1970) hereinafter cited as GA Res. 2625
(1970)

Declaration on the inadmissibility of intervention in the domestic affairs of States and the protection
of their independence and sovereignty, United Nations General Assembly Res. 2131 (XX) (1965)
hereinafter cited as GA Res. 2131 (1965)

Resolution and Declaration on the Protection of all Persons from Enforced Disappearance UN GA
Res 47/133 (1992) hereinafter cited as GA Res. 47/133 (1992)

6. OTHER DOCUMENTS

Arrest Warrant, Counter-Memorial of the Kingdom of Belgium, 28 Sept. 2001 hereinafter cited as
Arrest Warrant, Counter Memorial

Brussels Principles Against Impunity and for International Justice, adopted by the Brussels Group
for International Justice, as emanating from the colloquium 'The Fight Against Impunity: Stakes
and Perspectives' in Brussels, 11-13 March 2002, particularly Principle 14
Canadian Criminal Code, R.S.C., ch. C-46, ss.7(3.71)-(3.73) (1985) (Canada) hereinafter cited as
Brussels Principles

Canon Garcia v. Ecuador, Communication No.319/1988, views of 5 November 1991, UN Doc.

CCPR/C/43/D/319/1988 (1991) hereinafter cited as Canon Garcia

Djibouti v. France Memorial of the Republic of Djibouti, Mar. 2007 hereinafter cited as Djibouti

Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law
Commission on the Work of its Forty-Eighth Session, UN Doc. A/5/10, Articles 8, 9, 17, 18, and
20. hereinafter cited as DCCAPSM

Institute for International Law, Universal criminal jurisdiction with regard to the crime of genocide,
crimes against humanity and war crimes, Seventeenth Commission, 2005, hereinafter cited as
Resolution on UJ

International Law Commission Articles on the Responsibility of States for Internationally Wrongful
Acts with commentaries, Yearbook of the International Law Commission, 2001, ii (Pt 2) (UN Doc.
A/56/10); hereinafter cited as ARS or ARS with commentaries.

Karagiannakis, ‘State Immunity and Fundamental Human Rights’, 11 Leiden J Int’l L (1998) 9
hereinafter cited as Karagiannakis (1998)

Kolodkin, A., Special Rapporteur, Preliminary report on immunity of State officials from foreign
criminal jurisdiction, U.N. Doc. A/CN.4/631 hereinafter cited as Kolodkin (2008)

Office of the High Commissioner for Human Rights, General Comment No.24: Issues relating to
the reservations made upon ratification or accession to the Covenant or the Optional Protocols
thereto, or in relation to declarations under article 41 of the Covenant, 4 November 1994,
CCPR/C/21/Rev.1/Add.6 hereinafter cited as OHCHR, General Comment No.24
 xvi

Princeton Principles on Universal Jurisdiction, 2001 hereinafter cited as Princeton Principles

Proceedings in England regarding Israeli Minister Ehud Barak, ; Written Ministerial Statement by
Mr Henry Bellingham (Under-Secretary of State for Foreign Affairs), HC Deb., 13 Dec. 2010, Vol.
520, 72WS hereinafter cited as Ehud Barak

Projet de loi relative aux violations graves du droit humanitaire, 23 July 2003, Belgian Parliament,
Doc. 51 01/03/2001 hereinafter cited as Projet de loi relative aux violations graves du droit
humanitaire hereinafter cited as Projet de loi relative aux violations graves du droit humanitaire

Record of Public Sitting, Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, Provisional Measures, 1 April 1993, CR 1993/12; hereinafter cited as Record
of Public Sitting, Bosnian Genocide

Report on the International Commission of Inquiry on Darfur to the UN Secretary- General of 25

January 2005, § 614 hereinafter cited as Darfur Report, 2005

Report of the Working Group on Arbitrary Detention, UN ESCOR, Hum Rts Comm, 50 th Sess,
Agenda Item 10, 139-140, UN Doc E/CN.4/1994/27 (1993) hereinafter cited as Report of the
Working Group on Arbitrary Detention

The Institute for International Law, 17th Commission, Resolution on Universal criminal jurisdiction
with regard to the crime of genocide, crimes against humanity and war crimes, 2005 hereinafter
cited as Resolution on UJ

U.S. Dep't of Justice Memo on United States v. Alvarez-Machain, Jan. 1993, 32 I.L.M. 277
hereinafter cited as U.S. Dep't of Justice Memo

Newspapers

Beeston, ‘Iran threatens to hit back over diplomat's arrest’, The Times, 28 Aug. 2003 hereinafter
cited as Beeston, 2003

Caribbean Leaders Criticize U.S. Court Decision, Xinhua General News Service, July 3, 1992
hereinafter cited as Newspaper A

Iran Head of Judiciary Condemns U.S. Supreme Court for "Kidnapping" Decision, BBC Summary
of World Broadcasts, June 27, 1992 hereinafter cited as Newspaper B

Judicial Officials Condemn U.S. Supreme Court Decision on Seizure of Suspect, BBC Summary of
World Broadcasts, June 23, 1992 hereinafter cited as Newspaper C

Latin America: Mexican Protests Against Second DEA Kidnapping, Inter Press Service, June 18,
1992 hereinafter cited as Newspaper D

Latin America: Unanimous Criticism of U.S. Supreme Court Decision, Inter Press Service, June 17,
1992 hereinafter cited as Newspaper E

McGreal, ‘Sharon's Ally Safe from Arrest in Britain’, The Guardian, 11 Feb. 2004 hereinafter cited
as McGreal, 2004

McLeod incident, British and Foreign Papers, vol. 29L hereinafter cited as McLeod
 xvii

McRae, D., & Cohen, M., International Law Badly Shaken by U.S. Ruling, Ottawa Citizen, July 28,
1992, at A9 hereinafter cited as Newspaper F

Osborn, ‘Danish protests greet Israeli envoy’, The Guardian, 16 Aug. 2001 hereinafter cited as
Osborn, 2001

Reaction to U.S. Supreme Court Decision Endorsing Right to Kidnap Foreigners for Prosecution in
U.S., Noti Sur South American and Caribbean Affairs, June 30, 1992, hereinafter cited as
Newspaper G
 xviii

(d) STATEMENT OF RELEVANT FACTS

The Republic of Manconia (RoM) achieved independence from the United States of Merseystan

(USM) on the 5th July 1965. On the 1st February 1996, RoM joined the United Nations. Following

tensions between the Blues and the Reds in the region, an armed group called the Keanos of North

Manconia was established in order to coordinate the insurrectionary movement. The Red –

dominated group then made a Declaration of Independence in Redville on the 5th July 1999 which

caused clashes between them and the units of the Armed Forces of the Republic of Manconia. This

is when USM brought the matter before the United Nations Security Council.

On the 5th July 2008 the Republic of North Manconia becomes the world’s 193rd state. RNM joins

the United Nations on the 7th Decemeber 2008 and 50,000 Blues resettle to USM around that

period. By mid 2009 there are protests, increased crime rate, and rivals being to appear.

Consequently, the President of RNM visits Orangestan in order to seek financial assistance in which

he receives 2 billion in aid for RNM. On the 9th July 2009, a celebratory dinner is held by

Orangestan and the President is pronounced dead the next day. This lead to suspicions that the

Blues were responsible for the President’s death, and on the 18th July 2009 many unarmed Blues

around Redvilled are killed and hundreds are beaten.

The attacks continue to spread and on the 25th July 2009 leading Keanos employ radios in order to

incite the Red population to take revenge. DJ Gerry Neville also uses the radio in order to incite

listeners to “squash the Blues”. As a response to the situation in RNM, the Security Council adopts

Resolution 3778 (2009) on the 30th July 2009 and Resolution 3782 (2009) on the 5th August 2009.

By the 15th August 2009, the effect of the attacks on the Blues have reduced their population from

600,000 to 70,000 with the number of deaths amounting 320,000. Over 200,000 fled, 120,000 of

which crossed to the RoM to refugee camps. Several of the Blues who could afford flights flew to

USM.

By 25th August 2009, the attacks on the Blues have discontinued and the ruling Red regime agrees

to a cease-fire and peace talks. Under an Agreement on National Reconciliation of the Republic of
 xix

North Manconia, a government of national unity is formed. The government is made up primarly of

Reds who agree to establish a hybrid UN-RNM tribunal.

Gerry Neville is appointed as the RNM government’s Minister for Culture, Media and Sport on the

1st Decemeber 2009. Two months later, a new government takes office in USM and decides to take

action in relation to the crimes which had been committed in RNM between July and August 2009.

USM prosecutors open domestic criminal proceedings against Mr Neville for the crime of inciting

genocide between 28th July and 15th August 2009. On the 10th May 2010, USM requests RNM to

extradite Mr Neville for the purposes of this prosecution. RNM refuses the request for extradition

on the 20th July 2010.

During the year 2010, representative of the Blue community in RNM initiate civil proceedings in

RNM against various individuals accused of involvement in genocide. A test case is brought against

Mr Neville and other Red members of the current government on the 15th January 2011 but it was

struck out on the basis that under RNM law Ministers of State have immunity from civil action.

On the 1st May 2011, Mr Neville is invited, in his ministerial capacity, to attend the Regional

Culture Ministers meeting in Orangestan. The government of USM contacts Orangestan to explore

the possibility of Orangestan arresting Mr Neville and extraditing him to USM. In order to preserve

international comity, the government of Orangestan refuses to do so. A Special Forces unit

consequently enters Orangestan covertly and kidnaps Mr Neville on the 12th May 2011. He is then

brought before a local magistrate and refused bail.

The RNM government registered strong protests with USM directly and the UN Security Council

and demanded the immediate release of Mr Neville. Mr Neville objects to being tried due to lack of

jurisdiction, his immunity as serving minister, and the manner in which he was brought before the

Court. His case was appealed to the USM Supreme Court but was dismissed on all three of his

objections. His trial is scheduled to start in the criminal court of first instance on the 5th May 2010.
 xx

RNM instituted proceedings against USM before the International Court of Justice on the 3rd

March 2012. Proceedings were issued in relation to alleged violations of the rights of its national,

Mr Neville and requests the Court to adjudge and declare that:

USM lack jurisdiction, USM has violated the immunity from criminal jurisdiction of Mr Neville,

and the Courts of USM lack jurisdiction over Mr N. because he was illegally abducted from a

foreign State.
 xxi

(e) ISSUES

The Republic of North Manconia respectfully asks the Honourable Court to consider the following

questions:

A. Does USM have jurisdiction to try Neville in their courts?

1. Does USM have territorial jurisdiction over the alleged acts of Mr. Neville?

a.Did the alleged acts of Mr Neville occur on USM territory?

b.Could the effects of Mr. Neville's alleged acts be said to have occurred on USM territory?

2. Does USM have nationality jurisdiction over the alleged acts of Mr. Neville?

a.Was Mr. Neville a national of USM before or at the time of the commission of his alleged

acts?

3. Does USM have passive personality jurisdiction over the alleged acts of Mr. Neville?

a.Were the victims of the alleged acts of Mr. Neville nationals of USM before or at the time

of the commission of those alleged acts?

4. Does USM have protective jurisdiction over the alleged acts of Mr. Neville?

5. Can USM exercise UJ over the alleged acts of Mr. Neville?

a. What is the content or scope of the principle of UJ?

b. Can the existence or scope of the principle of UJ be isolated with any certainty on the basis

of accepted sources of international law?

c. What conditions may attach to the exercise of UJ? Can USM fulfil these conditions?

d. May the aim of invoking UJ in prosecuting acts of genocide override conditions upon its

exercise?

e. Need the failure to exercise UJ in any particular instance entail impunity?

B. Is Neville immune from being tried in the municipal courts of USM?

1. Has RNM waived immunity in relation to N being tried in the courts of USM?
 xxii

2. Is N entitled to personal immunity from being tried in the courts of USM?

3. Is N entitled to functional immunity from being tried in the courts of USM?

4. Do Neville’s actions of inciting genocide amount to a breach of a jus cogens norm?

5. Do Neville’s actions of inciting genocide constitute war crime and/or crimes against humanity?

6. If Neville’s actions do amount to a breach of a jus cogens norm, war crimes, and/or crimes

against humanity, does that prevent him from being immune in relation to being tried in USM?

C. Was the abduction of Mr. Neville by USM in Orangestan a breach of RNM or Orangestan's

sovereignty?

1.What are the legal consequences of abducting a serving Minister of government in the territory of

a foreign third-party State?

2. Was Mr. Neville's abduction a breach of international human rights norms?

(i) Is the abduction of Mr. Neville a breach of the ICCPR, which USM has ratified?

(ii) Is there a customary international law right against arbitrary arrest and detention and, if so,

has USM breached it in abducting Mr. Neville?

3. What are the consequences in international law of the illegality of the abduction of Mr. Neville in

respect of the exercise of jurisdiction over his alleged acts by USM's courts?

(i) Is MCBD a rule of international law?

(ii) If not, what precludes exercise of jurisdiction by a State's courts?

(iii) If it is a rule of international law that breaches of international precludes the exercise of

jurisdiction, are there any exceptions to this rule?

(iv)What interests and principles may such a rule serve?

D. What remedies is RNM entitled to the alleged breaches of international law?

4. What remedy is required for USM's alleged breach of the sovereignty of both RNM and
 xxiii

Orangestan?

5. What remedy is required for USM's alleged breach of Art.9 ICCPR and the customary law

right against arbitrary arrest and detention?

6. What circumstances, if any, preclude the provision of the remedies otherwise available? Do

they obtain?

7. What obligations on States, if any, when unfulfilled, preclude the provision of the remedies

otherwise available? Do they remain unfulfilled?

 xxiv

(f) SUMMARY OF ARGUMENTS

A. Jurisdiction

1. USM lacks jurisdiction over the alleged acts of Mr. Neville, which were committed outside USM

territory and did not involve USM nationals

a) Territorial jurisdiction permits courts of the State where the crime is committed to exercise

jurisdiction. As Mr. Neville's alleged acts occurred on RNM territory alone, USM lacks jurisdiction

over his alleged acts.

b) No invocation of the 'Effects doctrine' can grant USM exercise of territorial jurisdiction. A

separation must be made between the constituent parts of the alleged genocide and its incidental

features, only the former of which may suffice for the 'Effects doctrine'. The movement of persons

from RNM to USM was in response to the alleged genocide and thereafter an incidental feature.

2. USM lacks jurisdiction over the acts of Mr. Neville as they did involve USM nationals

a) Nationality of the suspect is universally recognised as a basis for jurisdiction over extra territorial

acts where the perpetrator is the national of the forum state. As Mr. Neville was not a national of

USM before or at the time of the commission of his alleged acts, USM cannot exercise nationality

jurisdiction over his alleged acts.

b) Passive personality jurisdiction provides that aliens may be punished for acts abroad harmful to

nationals of the State of forum. USM cannot exercise passive personality jurisdiction of over Mr.

Neville's alleged acts as the victims were not nationals of USM before or at the time of the

commission of Mr. Neville's alleged acts.

c) USM lacks protective jurisdiction over the acts of N as they did not pose a threat to it and the

number of individuals who travelled there is minimal in comparison to Orangestan and other areas.
 xxv

3. USM cannot exercise UJ over the alleged acts of Mr. Neville:

a) Uncertainty abounds in respect of scope and very existence of UJ. State practice and other

authority remains very much divided, setting no clear standard under which jurisdiction may be

exercised independently of the hitherto accepted bases of jurisdiction for the crime of genocide.

b) In the alternative, to the extent that a rule of UJ can be said to exist, USM simply cannot exercise

UJ over Mr. Neville's alleged acts as it fails to fulfil the conditions attached to it for its exercise.

These conditions arise from State practice and judicial and scholarly opinion, and their fulfilment is

required for the exercise of UJ. In abducting Mr. Neville, a serving Minister of the RNM

government, and launching a prosecution against him in USM in disregard of the principle of

territorial priority, USM failed to fulfil these conditions.

c) It is denied that the purpose of UJ for the prosecution of genocide may override conditions upon

its exercise and safeguards against its abuse.

d) Failure to exercise UJ in any one case need not entail impunity. Nothing has been shown to

suggest that Mr. Neville will not face prosecution in future. The case of Cambodia demonstrates

that current barriers to prosecution, such as that of establishing a Hybrid Tribunal, are ultimately

lifted. USM has failed to exercise restraint in waiting for justice to be done in RNM.

B. Immunity

a) N is immune from criminal prosecution in the municipal courts of USM

b) As there is not statute or document which governs the UN-hybrid tribunal there is no evidence

that the Republic of North Manconia has waived immunity. The Republic of North Manconia has

not acted in a manner which implicity or explicitly waives Neville’s immunity.

c) Neville was representing the Republic of North Manconia on the international plane and the

performance of his functions impacts on relations with other States therefore he is entitled to

personal immunity from being tried in the courts of the United State of Merseystan.

d) In the alternative, Neville is entitled to functional immunity as his actions formed part of the

insurrectional movement at the time and he was consequently appointed Minister for Media.
 xxvi

e) It has been generally accepted that the crime of inciting genocide does amount to a breach of jus

cogens norm however it is not generally established that the imposition of individual criminal

responsibility for that crime, as a norm, rises to the level of jus cogens. It has been generally

accepted that the crime of inciting genocide does constitute a war crime and/or crime against

humanity.

f) That N’s actions constitute a breach of a jus cogens norm, a war crime and a crime against

humanity does not conflict with his immunity from being tried in the courts of the United States of

Merseystan. N’s immunity does not equate to impunity, demonstrated by the Republic of North

Manconia’s willingness and agreement in relation to the establishment of the UN-hybrid tribunal.

C. Abduction

1. The abduction is illegal as a breach of Orangestan's sovereignty

a) Any exercise of enforcement jurisdiction within the territory of another state, absent express

consent, or interference with its internal and external affairs is a breach of its sovereignty. In

abducting Mr. Neville, a serving Minister of the RNM government on Orangestan's territory, USM

has violated the sovereignty of both Orangestan and RNM.

2. The abduction is illegal by breach of customary international human rights law

a) USM is bound not to arbitrarily arrest and/or detain individuals by both the ICCPR, which it has

ratified, and customary international law. Extra-territorial abduction has been consistently judicially

recognised to violate rights against arbitrary arrest and detention by multiple human rights

conventions. Both Mr. Neville's initial abduction and his two-day detention without judicial

supervision constitute a breach of the customary law right against arbitrary arrest and detention and

Article 9 ICCPR.

3. The illegality of the abduction precludes exercise of jurisdiction by USM's courts

a) It is denied that male captus equals bene detentus. It is a rule of customary international law that

breaches of international law that constitute a violation of the rule of law preclude exercise of
 xxvii

jurisdiction by the courts of the breaching State. As a violation of State sovereignty and the

international human rights norm to which USM is bound, the abduction of Mr. Neville was in

violation of international law and that this breach constitutes a violation of the rule of law. USM's

courts cannot exercise jurisdiction over the alleged acts of Mr. Neville.

c) It is denied that the MCMD rule is engaged only in cases of substantial mistreatment of the

abductee. The weight of judicial and scholarly opinion supports the proposition that the rule can be

engaged where no mistreatment has occurred but where the rule of law has been violated.

d) It is denied that invocation of the principle of UJ permits the employment of extra-territorial

enforcement jurisdiction under international law. Such a proposition finds no support in judicial

opinion, and the weight of scholarly opinion denies it. Even in respect of suspects charged with the

crime of genocide, the claim of UJ over such crimes cannot defeat the illegality of an abduction in

pursuance of the exercise of the enforcement jurisdiction of the State claiming UJ.

e) MCMD does not yield an exception for those convicted of serious crimes such as genocide. The

rule of law requires that States be forced to avoid enforcement measures illegal under international

law, and an exception for serious crimes would nullify the aim of MCMD, the preservation of the

rule of law. Failure to abduct, in the exercise of UJ, need not entail impunity.

f) For States to seek to try foreign nationals whose conduct abroad they have criminalised by

domestic statute, and whom they have abducted in the enforcement of that statute, is for national

sovereignty to extend past national boundaries and onto the international plane. MCMD provides

the safeguards required to protect against the abuse this may constitute.

4. USM must release and return or permit the return of Mr. Neville to RNM:

a) It is a rule of customary international law that protest by the injured State and the request for

return entails that the abductee must be repatriated to the injured State. Restitution entails the return

of Mr. Neville to RNM. For the breach of RNM's sovereignty, Mr. Neville must be returned. It is

accepted that RNM cannot claim reparations for the breach of Orangestan's sovereignty.
 xxviii

b) The required remedy for both the customary international law right and Art.9 ICCPR is release of

the abductee, permission for him or her to leave the country, and an apology from the abducting

State to the State of which the abductee is a national.

c) The maxim, dolo facit qui petit quod statim redditurus est, does not preclude RNM from

requesting the return of Mr. Neville, as RNM were under no obligation to extradite or prosecute Mr.

Neville such as to engage the maxim. No obligation exists in customary law in respect of genocide.

Nor is there an obligatory rule of UJ such as would also engage the maxim. Regardless, were the

maxim applicable and it supported a denial of the return of Mr. Neville for violation of RNM or

Orangestan's sovereignty, it would have no bearing on the remedy for violations of human rights

law.
 xxix

(g) JURISDICTION OF THE COURT

The Republic of North Manconia and the United States of Merseystan are both members of the

United Nations and parties to the ICJ Statute. Each of them has accepted the compulsory

jurisdiction of the Court by means of a declaration deposited with the Secretary-General of the

United Nations pursuant to article 36, paragraph 2 of the ICJ Statute; there are attached no relevant

reservations.
 1

A. USM lacks jurisdiction over the alleged acts of N, which were committed outside USM

territory and did not involve USM nationals

1. USM lacks territorial jurisdiction over the alleged acts of N

Territorial jurisdiction permits courts of the State where the crime is committed to exercise

jurisdiction.1 It has received universal recognition. Territorial jurisdiction over crimes of genocide is

widely recognised in national legislation.2 Two bases of jurisdiction, subjective and objective, can

be isolated. The former concerns the place where the offence took place while the latter takes into

consideration the place where the effects occurred. The 'Effects doctrine' extends the objective

jurisdiction further to encompass more than the distinct physical elements of the crime. 3 It is

distinguished from objective territorial jurisdiction in that it does not rely upon some element of

inter-territorial conduct.4 This has been met with strong protests and cases which appear to apply it 5

only do so where inter-territorial conduct is present. 6 Its status in international law is therefore

dubious. N's radio broadcasts were transmitted within the city of Redville. 7 There is no indication

that the radio broadcasts reached any another country. Therefore, the acts with which N is charged

took place on RNM soil alone, whether understood by objective or subjective territoriality. Also, for

the 'Effects doctrine' to be engaged, if it exists in international law, USM would have to prove that

expulsion of Blues was a direct part of the genocide committed in RNM, and not merely an

incidental effect. This has not been proven, only that Blues fled RNM in response to the acts

committed there. USM therefore lacks territorial jurisdiction.

1 Lotus pg. 18

2 Art 8 of the Swiss Penal Code; Art 113-2 of the French Penal Code; Section 3 of the German
Penal Code; Art 6 of the Italian Penal Code.

3 Aluminium Co; Rio Tinto Zinc Corp.

4 Evans, 2010, p.323

5 Woodpulp.

6 Evans, 2010, p.323.

7 C.11.
 2

2. USM lacks jurisdiction over the acts of N as they did involve USM nationals

Nationality is universally recognised as a basis for jurisdiction over extra territorial acts where the

perpetrator is the national of the forum state.8 Jurisdiction is generally deemed to be available if the

suspect was a national at the time of the commission of the offence or if he or she was a national at

the time of the prosecution.9 It is clear that N is a national of RNM as RNM seceded from the

Republic of Manconia and became the world's 193 rd State on 5th July 2008.10 Pursuant to the 2008

Agreement, after a transitional period of 6 months, all habitual residents of RNM acquired

citizenship of that State.11 Furthermore, dual RoM/RNM citizenship was not permitted. 12 Therefore

it is submitted that the nationality principle cannot be used as a basis for jurisdiction either.

Passive personality jurisdiction provides that aliens may be punished for acts abroad harmful to

nationals of the State of forum. A person later gains nationality of a State that wishes to prosecute

offences against him does not grant that State passive personality jurisdiction. The Blues who have

resettled from RNM before the start of the violence 13 as well as some of the refugees who arrived in

July-August 200914 have not acquired USM citizenship as of 10 May 2010, nor can they be stated to

have been citizens of USM at the time of the violence. The victims of N’s alleged acts cannot be

said to USM at the relevant time and therefore USM cannot exercise passive personality

jurisdiction.

Furthermore, there is no threat to USM from the actions of N and the number of individuals who

travelled there is minimal in comparison to Orangestan and other areas, thus USM lacks protective

8 Lotus, p.92.

9 Swart, 2002, p.575.

10 C., para.5.

11 Fact clarification 38

12 Fact clarifications 38

13 C., para.6

14 C., para.16
 3

jurisdiction over the alleged acts of N.

3. USM cannot exercise UJ over the alleged acts of N:

For want of territorial or nationality jurisdiction, USM must appeal to a customary law rule of UJ to

try N in its courts. UJ is defined as “the competence of a State to prosecute alleged offenders and to

punish them if convicted, irrespective of the place of commission of the crime and regardless of any

link of active or passive nationality, or other grounds of jurisdiction recognized by international

law.”15 It is submitted that great uncertainty exists as to the basis of UJ over the crime of genocide

independently of the alternative hitherto-accepted bases of jurisdiction. The Genocide Convention

does not, of itself, permit the exercise of UJ over genocide. Whilst it is admitted that ICJ opinion

asserts that UJ emanates from Article 1 of the Genocide Convention, 16 the travaux preparatoires

and academic opinion does not support this isolated contention. 17 In contrast to the Geneva

Conventions of 1949 the Genocide Convention contains no provisions which could found a claim

for UJ, despite its adoption only one year prior to the Geneva Conventions. Separate opinion of the

ICJ asserts, “That there is no established practice in which States exercise UJ, properly so called, is

undeniable”, adding the reminder that that “all national legislation envisages links of some sort to

the forum State; and no case law exists in which pure universal jurisdiction has formed the basis of

jurisdiction.”18 That the Nuremberg trials can be said to have established a customary basis for the

exercise of UJ over genocide prior to the Convention is doubtful. 19 Similarly doubtful is the

identical claim in respect of the Eichmann trial: it not only recognised clear limitations on the

claimed norm, but alongside the Nuremberg trials constitute minimal and extraordinary examples

insufficient for establishment of a customary norm. More recent alleged examples of State practice

15 Resolution on UJ.

16 Bosnia and Herzegovina v. Yugoslavia Separate Opinion of Judge Lauterpacht.

17 Inazumi, 2005, pp.149-150.

18 Arrest Warrant, sep. op. Higgins, Kooijmans and Buergenthal, para.45.

19 Inazumi, 2005, p.151.

 4

and opinio juris, such as Belgium's attempt to establish UJ for the crime of genocide through

domestic statute, are also dubious: it was amended to exclude UJ as a result of widespread

international condemnation.20 It therefore cannot constitute state practice nor opinio juris for a

customary law rule of UJ. Moreover, it is submitted that any appeal to Pinochet in support of a

general customary law principle of UJ has no basis: as is supported by academic commentators 21,

the matter concerned the two States' obligations under treaty and their own domestic law rather than

any customary law principle of UJ. Pinochet can therefore provide no foundation for any claim of

UJ. Further doubts can be cast on State Practice in respect of crimes against humanity, where the

case law on the issue follow the traditional bases of jurisdiction instead. 22 Moreover, States such as

France, the US, and the UK fail to provide for UJ in their statutory prohibition on genocide.23

Domestic case law affirms the proposition that UJ, to the extent that it can be said to exist, does not

exist absent fulfilment of another base of jurisdiction24, with which national legislation25 and the

opinion of scholars concurs.26 As submitted above, USM will be unable to found their claim to UJ

on this basis, the other heads of jurisdiction remaining unfulfilled. There is therefore no consistent

conception of UJ in international law. As commentators ask, “In the light of the contradictory

practice, how can we say that universal jurisdiction is a norm?” 27 No international law right can be

founded on so uncertain a claim.

20 Projet de loi relative aux violations graves du droit humanitaire.

21 Bassiouni, 2003, p.56.

22 Criminal Code, S.7 (3.71), and Regina v Finta (Canada); Criminal Code art.212, and GB 1999;
Code Pénal Art.212-1, and Barbie, Touvier, and Papon (France).

23 Art.211-1 Code Pénal and Art.689 Code de procedure pénal (France); United States Code,
para.1091(d) (US); International Criminal Court Act 2001, s51 para.2(a) (UK).

24 In Re Javor (France); In Re Munyeshyaka, (France); Public Prosecutor v. Jorgic (Germany).

25 War Crimes Amendment Act 1988, s.11 (Australia); War Crimes Act 1991, c.13, s.2 (UK);
Canadian Criminal Code, R.S.C., ch. C-46, ss.7(3.71)-(3.73) (1985) (Canada).

26 Slaughter, 2004; Orentlicher, 2004 Bassiouni, 2004.

27 Inazumi, 2005, p.150.

 5

In the alternative, to the extent that a rule of UJ can be said to exist, USM simply cannot claim UJ

as it fails to fulfil the conditions attached to it for its exercise. It must be recalled that separate

opinion of the ICJ asserts that UJ threatens to bring “total judicial chaos” and may “encourage the

arbitrary, for the benefit of the powerful”. 28 The need for conditions to its exercise is therefore clear.

It has been stated authoritatively that “the jurisdiction of States to prosecute crimes committed by

non-nationals in the territory of another State must be governed by clear rules in order to ensure

legal certainty, and the reasonable exercise of that jurisdiction”. 29 Pursuant to this, judicial opinion

recognises safeguards against abusive exercise of UJ, which constitute conditions the fulfilment of

which is necessary for the exercise of UJ.

Separate opinion of the ICJ has stated that the prosecuting state “must first offer to the national

State of the prospective accused person the opportunity itself to act upon the charges concerned”. 30

The Court also stated that “some special circumstances that do require the exercise of an

international criminal jurisdiction” must obtain, for example, when “persons related to the victims

of the case will have requested the commencement of legal proceedings.” 31 Authoritative statements

of the principle of UJ affirm that States must ask the State of which a suspect is a national “whether

it is prepared to prosecute” that suspect. It is precluded from exercising UJ over him unless that

State is “manifestly unwilling or unable to do so” 32 and this is affirmed in ICTR opinion. 33 More

generally, the Princeton Principles state that the exercise of UJ by a State must be “in accordance

with its rights and obligations under international law”.34

28 Arrest Warrant, Separate Opinion of President Guillame.

29 Resolution on UJ, Preamble.

30 Arrest Warrant, sep. op. Higgins, Kooijmans and Buergenthal, para.59.

31 Arrest Warrant, sep. op. Higgins, Kooijmans and Buergenthal, para.59.

32 Resolution on UJ, 3(c).

33 Katanga.

34 Princeton Principles, 1(5).

 6

First, it is submitted that USM's exercise of jurisdiction, as a subversion of ordinary legal

extradition procedures and international criminal justice cooperation, has failed to regulate its

exercise of jurisdiction by clear rules therefore rendering it inimical to legal certainty. In prefacing

the exercise of jurisdiction on the illegal abduction of N, an individual with immunity from

prosecution, USM has exercised jurisdiction unreasonably and not in accordance with its

obligations under international law. USM has also failed to offer RNM the opportunity to itself act

upon the charges of genocide, merely requesting the extradition of N to USM. 35 In pursuing its own

prosecution USM has ignored the attempt of RNM to itself so act in agreeing to establish the hybrid

tribunal. No plea for its exercise has been forthcoming from any of the alleged victims in USM, nor

have any other special circumstances been shown.

Authoritative commentators list factors critical to the exercise of UJ in Butare Four36 as “the sense

that the prosecution was apolitical and not tantamount to taking sides in a distant political conflict”,

“the absence of an effective judiciary in the state where the atrocities took place and the presence of

one in Belgium”, and “the lack of opposition from any state, in particular Rwanda, to their

prosecution”.37 None of these conditions obtain in the present case. As a former colonial power,

USM cannot help but act in a manner that is political and will inevitably be seen to be so acting;

moreover, it is a prosecution directed against a member of RNM's government and a greater

aggravating factor in the appearance of a political prosecution could hardly be imagined.

It is accepted that, as of yet, no clear customary international law rule of priority of the territorial

forum over international or transnational fora, under the term 'complementarity', has emerged. It

must be noted, nonetheless, that State practice has recognised the principle in statutory law, 38

35 C.23.

36 The Butare Four.

37Ratner, 2003, pg. 892; Cassese, 2003, pg. 593.

38 S.153f(2) of the German Criminal Code of Procedure.

 7

alongside affirmative judicial and prosecutorial decisions, 39 statements of the law by international

bodies and declarations,40 and academic authority.41 The separate opinion Arrest Warrant cited

above also provide for such a principle. 42 It is submitted therefore that the issue is one of accepted

legal principle which must inform the conditions on UJ as described above.

There remains no justification for departure from the above rules and the guiding principle of

territorial priority in pursuing prosecution of N in USM rather than in the Hybrid Tribunal which

stands to be established in RNM. It may be claimed that this is required to end the impunity with

which N has committed his alleged crimes, a goal with which authoritative statements of the law

concurs.43 Firstly, and simply as a matter of logic, it must be proven that the incapacity of the

prosecuting State to exercise jurisdiction over those so accused truly entails impunity. As academic

commentators affirm,44 incapacity to invoke UJ, in this case by USM at this point, does not ipso

facto necessitate impunity. The Hybrid Tribunal for Cambodia took many years to be established

and to hear its first case, after difficult UN negotiations, where difficulties in part stemmed from the

presence of certain Khmer Rouge elements within government and the selection of judges,

problems identical to those of the present case. 45 International law would not have countenanced

another State abducting a Cambodian genocide suspect and government Minister during the

negotiations for the establishment of that court. Furthermore, difficulties of establishment and non-

intervention by other States did not entail impunity, as suspects now stand trial. USM has failed to

allow the same considerations to weigh in respect of RNM. It is accepted that no judicial guidance

39 Eichmann; Dusko Cvjetkovic; Jorgic; 'The Butare Four'; Guatemalan genocide.

40 For example, Darfur Report, 2005, § 614; Princeton Principles, Principle 8; UJ Resolution, 3(d).

41Cassese, 2003, 589-95; also Kress, 2006, pp.561-585; Stigen, 2010, p.142; Oppenheim, 1992,
p.458.

42 Arrest Warrant, para.59.

43 Resolution on UJ, Preamble; Princeton Principles.

44 Paulussen, 2010, p.158;

45 Orentlicher, 2005, pp.219-21; Horsington, 2004, p.462; Zappala, 2009, p.273.

 8

is available on the meaning of “unwilling or unable” as stated in Katanga, it is submitted that, given

the above, no claim that RNM is thus far unwilling or unable to prosecute N can stand.

It may be claimed, in closing, that the purpose of UJ for the prosecution of genocide may override

conditions and safeguards against abuse. It is submitted that any such claim cannot be permitted to

draw a cloak of legitimacy over an exercise of criminal jurisdiction that has failed to meet the clear

and accessible legal conditions placed upon it in international law, flouts USM's obligations under

the law of immunities and extra-territorial abduction, and has failed to engage cooperatively with

RNM and its pursuit of local justice, instead seeking destablising, disruptive, and unreasonable

unilateral self-help.

B. USM has violated the immunity from criminal jurisdiction of N, a serving Minister in the

RNM government.

As stated by the ICJ, “The law of privileges and immunities...retains its importance since

immunities are granted to high State officials to guarantee the proper functioning of the network of

mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious

international system.”46The view of the international communities is based on a balancing of

interests between the prevention of impunity for perpetrators of grave crimes against its members,

and the interest of States to allow them to act freely on the inter- State level without unwarranted
47
interference. RNM has not waived immunity. This is reflected in the fundamental principles of

consent, state sovereignty and waiver of immunity in respect to the UN- hybrid tribunal. The

removal of immunity is based on consent which is discovered by viewing the tribunal's founding

document. Since there is no statute 48, and there does not appear to be any other way to interpret the

intention of the parties. Even if immunity were to be waived through UN hybrid tribunal agreement,

46 Iranian Hostages, para 91.

47 Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans & Buergenthal at 75

48 C.19, 24
 9

this would have no impact on a foreign jurisdiction as RNM was agreeing to a different legal

procedure. However, it is submitted that the prima facie position is that there is no waiver of

immunity and there is not anything to suggest otherwise.

1. Personal Immunity

N is entitled to personal immunity, that is to say that his immunity from criminal process is absolute

or complete.49 The principle of immunity ratione personae has been applied by national courts 50 and

upheld in state practice.51No criminal prosecution should be brought against him in a foreign court

as long as he remains in office. It covers all of the person's acts, including any acts before they took

office, whether they were private or official.52 Personal immunities are granted in order to ensure

the effective performance of the individuals functions on behalf of their states.53 Immunity ratione

personae covers cases involving allegations of international crimes and is taken to apply to all
54
officials who are entitled to it.

N's performance of his functions came to a halt due to the actions of USM he can no longer fulfil

his duties as Media Minister. N has represented RNM on an international plane at the Regional

Culture Minister's meeting on more than one occasion. 55 The main basis for establishing immunity

ratione personae in relation to foreign ministers in Arrest Warrant case was because they are

responsible for the international relations of the state and "in the performance of these functions, he

or she is frequently required to travel internationally, and thus must be in a position freely to do so

49 Arrest Warrant at 51

50 Castro p.272 cited by Cassese, 2008, at 309-310, ; Re Sharon and Yaron; Pinochet (No.3) at 126-
127, 149, 179; Jiang Zemin; Tachiona; Auto del Juzgado at 151-157. Mofaz; Ghaddafi

51 Murphy, 2003; at 974-977; Jiang Zemin; Beeston, 2003 at 17; Osborn, 2001 at 13; Hartmann,
2005 at 745; McGreal, 2004 at 19.

52 Arrest Warrant at 55

53 Arrest Warrant at 53- 54

54 Akande, 2011 p.819; Cassese, 2008 p.309-310; Gaeta, 2002,p. 975; Zappalà, 2001; Fox, 2002

55 C.C.6
 10

whenever the need should arise."56.

There are authorities which argue that the immunity accorded to the foreign minister in the Arrest

Warrant case does not extend to other state officials who are below the status of a foreign minister. 57

In the case of Mofaz58, Judge Prat considered the Arrest Warrant case and stated that he did not

believe that a Culture Media and Sports Minister would automatically acquire a label of State

immunity.59 However he took the words “such as” in paragraph 51 of the Arrest Warrant case to

indicate that the categories listed were not exclusive and further stated that the function of various

Ministers will vary enormously depending upon their sphere of responsibility.60

It is submitted that in this case, N does fall into the category of persons entitled to immunity, as N's

international commitments which require him to travel require the same kind of immunity.

Recently, the meetings have been concluded with the adoption of non-binding resolutions on
61
regional cooperation in this area. N's performance of his functions impacts on RNM's relations

with other states and in this manner can be said to be identical to that of a Foreign Minister or

diplomat.62 RNM is a relatively new state which makes its relations with other states very crucial. 63

As it depends heavily on the representations of its State officials in order to forge and consolidate

diplomatic and international relations.

In the alternative, it is submitted that he is entitled to immunity ratione materiae or functional

immunity. This principle derives from the concept of sovereignty. Sovereignty suggests that one

56 Arrest Warrant at 53

57 Pinochet (No.3), per Lord Brown-Wilkinson; Gaeta; Broomhall at 130-131; Kolodkin, para 111,
Vienna Convention on the Law of Treaties, Art 7(2)

58 Mofaz

59 Mofaz at para 13

60 Mofaz at para 11

61 C.C. 57

62Arrest Warrant at 53

63 C. 5
 11
64
state cannot judge another state for acts performed in sovereign capacity; The immunities are

conferred to prevent foreign states from interfering in the affairs of other states and from exercising

judicial jurisdiction over the nationals of another state in circumstances where it has not

consented.65

The effect of the immunity is that the state can be held responsible for his acts, and the individual is

not held responsible to the courts of another state for his acts. This has been held to be a well-

established rule of customary international law. 66 The definition of official act was held to be

similar to an “act committed for official purposes.” 67 It is submitted that N's actions can be

described as official acts pursuant to the Articles on State Responsibility.

N's actions are attributable to the state pursuant to Article 10 of the Articles on State

Responsibility68 in relation to the conduct of an insurrectional movement. Article 10 constitutes

customary law.69 The attribution of conduct of a successful insurrectional movement of the State

under international law lies in the continuity between the movement and the eventual government. 70

The relevant test is the existence of a “real and substantial continuity” between the former

insurrectional movement, which N was a part of, and the new government it has succeeded in

forming.71

N's conduct constitutes conduct of an insurrectional movement which becomes the new

64Clapham at 313

65 Akande, International Law at 417, UN Immunities Convention Article 2(1)(b)(iv), 5

66 McLeod at 1139; as well as Jennings, 1938, at 92-99; Rainbow Warrior. See also the Governor
Collot case, in Moore at 23-24; Eichmann; Blaskic (subpoena) at paras 38 and 41, Arrest Warrant
Case at 58.

67Lord Hope in Pinochet (No.3) at 881

68 ARS

69 Nicaragua

70 ARS commentaries at 4

71 ARS commentaries at 7
 12

Government of a State and therefore his actions shall be considered to be acts of RNM under

international law. When former leaders of the Keanos become increasingly influential. 72 and took to

the airwaves to incite the Red population to take revenge; 73 Radio stations were an effective means

of directing attacks, and N was inciting listeners as part of the insurrectional movement at that

time.74 His association with the movement is evidenced by his appointment as the RNM

government's Minster for Culture, Media and Sport. Thus, it is clear that there a real and substantial

connection exists.

It has been argued that since immunity ratione materiae can be pleaded to protect officials from

scrutiny in relation to official acts, that acts amounting to international crimes may not be

considered official acts.75 However this argument is unsubstantiated since immunity is raised at a

stage during the proceedings where it will not yet have been established that the state has acted

illegally.76 N's actions were done for reasons associated with the policies of the Keanos, this is

indicated by the fact that other leading Keanos were undertaking the same action. Therfore, “to
77
deny the official character of such offences is to fly in the face of reality.” Such acts are

characterized as acts of the state for the purpose of imputing state responsibility, 78 and it would be

artificial to impose a different test in the context of individual responsibility.

2. Convention on Special Missions

In the Mutual Assistance in Criminal Matters case, Djibouti relied on the Special Missions

72 C.10

73 C. 11

74 C. 12

75 Pinochet No. 3

76 Akande, 2011 830

77 Barker, 1999, at 943; Denza , 1999, at 952; Gallagher, 2009, at 1110-1111.

78 ARS Arts 4 and 7

 13

Convention in its written pleadings although neither it nor France was a party to that Convention. 79

It is important to note that it has been accepted that this type of special mission immunity applies

even in cases concerning international crimes.80 The receiving state must not only be aware that the

foreign official is on its territory, it must also consent to that presence and to the performance of the

specified task.81 The element of consent is present in this situation as the Regional Meeting did

involve Orangestan being aware of and consenting to N's presence on their territory as it invited N,

in his ministerial capacity, to attend the annual Regional Culture Minister's meeting. 82 Accordingly

N is inviolable from criminal prosecution and other proceedings.83

3. Genocide, jus cogens, and crimes against humanity

Genocide is a form of crime against humanity as established by state practice and opinio juris. 84 N's

immunity does not interfere with impunity in relation to acts involving genocide. The argument

that war crimes or crimes against humanity prevented immunity was rejected by the ICJ:

“The Court has carefully examined State practice, including national legislation and those few
decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It
has been unable to deduce from this practice that there exists under customary international law any
form of exception to the rule according immunity from criminal jurisdiction and inviolability to
incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes
or crimes against humanity.”85

79 Djibouti at paras 131-140

80 ReBo Xilai;. See also Arrest Warrant, Counter-Memorial at paras 1.11-1.12, 3.2.32

81 Convention on Special Missions, Article 1

82 C.26

83 Convention on Special Missions, Article 29

84 Genocide Convention Art. II and IV; ICTY Statute Art. 4 and 7; ICTR Statute Art. 2 and 6;
Rome Statute Articles 6, 25, 28 and 30; Akayesu; Kayishema, Krstic (ICTY Trial Chamber
judgment 2/8/2001) , Krstic Appeals; Kristic Trial; Bosnia And Herzegovina v Serbia and
Montenegro, paras.190-201; Omar Al Bashir

85 Arrest Warrant at 58
 14

The Arrest Warrant case confirms the opinion of the judges in the Pinochet case that General

Pinochet would have enjoyed immunity, on a different basis, if he had still been Head of State. 86

It has also been argued that owing to the superior position of jus cogens norms in the hierarchy of

international law, they must prevail over the rules of international law providing immunity. 87

Although it has been stated that prohibition of genocide is a norm of international law that is also a

peremptory norm of international law or jus cogens, 88 it is by no means established that all rules

prohibiting international crimes are prohibitions that rise to the level of jus cogens.89

The rules of state immunity do not come into conflict with the jus cogens norms as the main

purpose of immunities is to prevent the trial of such crimes in the domestic courts of other states. In

order to establish a conflict, it would have to be shown that there is an obligation on third states to

prosecute the crime in their domestic courts and that this obligation itself is a rule of jus cogens.90 It

is clear that no such obligation was shown in N's case.

If the obligation to prosecute were jus cogens, it would prevail over other norms of international

law and there would be an obligation to prosecute even in situations where such a prosecution

would violate the rights of the individual concerned or that of other states. 91 This is clearly not the

current situation. Furthermore, even where there is an obligation on third states to prosecute that

obligation does not rise to the level of jus cogens. Therefore, there is no conflict between rules of

immunity and the jus cogens nature of the prohibition.

86 Jones v Saudi Arabia at 49

87 Bianchi, 1999 at 265; Reimann, 1995 at 421-423; Byers, 1996 at 539-540; Orakhelashvili, 2002
2 at 712-713; Orakhelashvili, 2002 1; Karagiannakis, 1998; Orakhelashvili, 2007 at 964.

88 Judge ad hoc Elihu Lauterpacht, in Bosnia and Herzegovina v. Yugoslavia at 440.

89 Akande,2011, at 833

90 Judge Al-Khasawneh in his dissenting opinion in the Arrest Warrant case, at 7.

91 Akande, 2011, at 836

 15

Thirdly, the argument that there is no immunity in cases alleging violations of jus cogens norms has

been both explicitly and implicitly rejected by international tribunals. 92 In Al-Adsani v. United

Kingdom, held that the grant of state immunity in a case involving an allegation of torture by a

foreign state was consistent with international law and therefore not a denial of the right of access to

a court. This view has since been followed by broader majorities of the ECtHR in other cases. These

cases dealt only with the immunity of states from civil actions. However, if the ECtHR had

accepted the normative hierarchy theory and was of the view that the jus cogens prohibition

prevailed over immunity in criminal cases, it is difficult to see how such a prohibition would not

also override immunity in civil cases as well.93

State immunity can be viewed as a procedural rule going to the jurisdiction of the national court, it

does not go to the substantive law and therefore does not contradict the prohibition contained in a

jus cogens norm but it “merely diverts any breach of it to a different method of settlement.” 94 A

different method has already been arranged through the UN- hybrid tribunal.

Due to RNM's acceptance and evident decision to act upon trying individuals involved in genocide

in the UN-hybrid tribunal and due to the absence of consent in relation to any other method, it is

clear that the state's interests would have been balanced by trying N without interfering with the

performance of his functions and impacting RNM.

C. The Courts of USM lack jurisdiction over N because he was illegally abducted from a foreign

State.

1. Illegality as a breach of RNM's and Orangestan's sovereignty

Any exercise of enforcement jurisdiction within the territory of another state, absent express

92 Bouzari at 73, Al-Adsani

93 Akande, 2011 at 838

94 Fox, 2002, at 525

 16

consent, or interference with its internal and external affairs is a breach of its sovereignty. 95 The

United Nations Security Council has forcefully condemned acts of covert abduction of individuals

within a sovereign state's territory as a violation of its sovereignty. 96, Scholars affirm the

proposition.97

In abducting N, USM interfered with the external affairs of RNM and therefore committed a breach

of the sovereignty of RNM. In so doing, it also exercised its enforcement jurisdiction in Orangestan

and therefore committed of sovereignty of Orangestan.98 Consent can vitiate a breach of sovereignty,

but it must be express and given before or contemporaneous to the sovereignty-breaching act, 99 and

may be by local official.100 Orangestan refused to cooperate in the arrest and extradition to USM of

N.101 Consent was not given. RNM has protested and so has not consented.102

2. Illegality of the abduction by breach of customary international human rights law:

The right against arbitrary arrest and detention and deprivation of liberty and security of the person

forms a rule of customary international law. This customary law right forms a network of

“international due process of law” principles.103 This is supported by State practice and opinio

95 Lotus; Corfu Channel; Nicaragua; Arrest Warrant; UNC; GA Res. 2131 (1965); GA Res. 2625
(1970)

96 United Nations Security Council Resolution 138 of 23 June 1960.

97 Oppenheim; Costi, A., 2003, p.61; Michell, P., 1996, p.411.

98 C.27.

99 ARS.

100Savarkar

101C.26.

102C.28.

103Costi, 2003, p78; Bassiouni, 1987, p.231; Mann, 1990, pp.347-348; Princeton Principles, 1(4).
 17

juris,104 alongside the opinions of eminent jurists on the subject105 and ICJ opinion.106 Correlative

international wrongs, such as the right to be informed of the charges against the individual 107 and the

right to a prompt judicial hearing,108 have been recognised, strengthening the claim that procedural

safeguards form customary international law as a safeguard for the rule of law. 109 Domestic case

law110 and the opinion of eminent jurists111 affirm the proposition that abduction is a violation of the

rule of law.

Extra-territorial abduction has been consistently judicially recognised to violate rights against

arbitrary arrest and detention by multiple human rights conventions. 112 Widespread ratification to

these conventions demonstrates State practice and opinio juris as to the customary law right,

although the derogable status of the rights contained in those documents has no bearing on the

customary international law status of the right against arbitrary arrest and detention more broadly.113

USM has ratified the ICCPR,114 and is therefore bound by it under international law. Extra-territorial

abduction has been held to constitute a violation of Article 9.115

104Report of the Working Group on Arbitrary Detention; Third Restatement; RDPPED.

105Paulussen,2010, p.75; OHCHR, General Comment No.24, para.8; Michell, P., 1996, p.411;
Loan, 2005, pp.253-300; Costi, A., 2003.

106 Iranian Hostages; United Nations Security Council Resolution 638 1989.

107 Chattin.

108 Parrish.

109Costi, 2003.

110 Hartley (NZ); Mackeson (UK); Beahan (Zim.); Bennett (UK); Ebrahim (SA); Toscanino (US).

111Michell, 1996; Costi, 2003, p.96; Paulussen, 2010.

112 ICCPR, Art.9 : Lilian Celiberti; Sergio Ruben; Maria del Carmen; Canon Garcia. ECHR,
Art.5: Stocke; Ocalan; ACHR, Art.7: Rodriguez; ACHPR, Art.6.

113 Office of the High Commissioner of Human Rights, General Comment No. 24, para. 9.

114C.C. 7.

115See ICCPR cases, footnote 18.

 18

Both N's initial abduction and his two-day detention without judicial supervision 116 constitute a

breach of the customary law right against arbitrary arrest and detention and Article 9 ICCPR. N's

arrest was sought in a manner contrary to what USM itself recognised as the relevant procedure

established by law, namely, extradition.117 It is therefore arbitrary and not a deprivation of liberty in

accordance with law. Consent to the abduction by the State of refuge can vitiate the breach of

Article 5 ECHR.118 As submitted above, Orangestan did not consent. Regardless, consent is

irrelevant to the breach of Article 9 ICCPR119 and, as scholars affirm, the customary international

law right “to be free from abduction exists independently of whether there is also a breach of the

host state's sovereignty”.120 Therefore, Orangestan's conduct is irrelevant in this regard.

3. The effect of the abduction's illegality on the exercise of jurisdiction by USM's courts:

It may be asserted that no international law rule exists such that the illegality of a defendant's

abduction precludes the abducting State's courts from exercising jurisdiction over him or her; that,

in the Latin, male captus equals bene detentus.121 This does not represent international law. It is a

rule of customary international law that illegal abduction precludes the exercise of jurisdiction over

the abductee in a domestic criminal court, that male captus necessitates male detentus. State

practice and opinio juris makes this clear.122 It must be recalled that there is no requirement that all

State practice be consistent with a rule for it to be customary law. 123 Regardless, supposed evidence

of contrary State practice is misconceived or has been superseded by contemporary practice. It is

116C.27.

117C.23.

118Illich Sanchez Ramirez; Ocalan.

119Lilian Celiberti; Sergio Ruben; Canon Garcia.

120Loan, 2005, p.282; also, Michell, 1996; Paulussen, 2010.

121Ker; Frisbie; Alvarez-Machain.

122Inre Jolis (France); Fiscal (Spain); Levinge (New Zeal.); Hartley (NZ); Mackeson (U.K.);
Ebrahim (SA); Beahan (Zim.); Bennett (U.K.); also, Nikolic (ICTY); Harvard Research, Art.16.

123Nicaragua, 95-99.
 19

submitted that Eichmann, admittedly a case that some take to preclude MCMD,124 no longer

represents the state of international law: human rights norms now take greater primacy in

international law.125 Moreover, Eichmann case does not clearly deny MCMD: the Israeli court

specifically denied the possibility of Eichmann's pleading the illegality of his abduction as a

violation of Argentina's sovereignty in a national forum rather than on the international level. As a

matter of logic, this in no way bears upon the question of whether the illegality of an abduction

strips a domestic court of jurisdiction over the abductee as a matter of international law. Further

contrary cases can be seen to be determined in relation to cases in which state sovereignty was not

violated or where the substantive international law issues were ignored by the court 126 and have

received widespread international and domestic criticism.127

MCBD may appear to be affirmed in Nikolic 1 and 2.128 However, it concerned the employment of

non-state actors in the abduction of the defendant and was not a claim brought against an abducting

State. In Nikolic 1 it was expressly stated that these facts significantly altered the legal terrain in the

case.129 This disclaims the relevance of Nikolic to the present case. Moreover, the legal framework

was such that the vertical authority of the UNSC generated an obligation on all relevant States to

surrender suspects to the ICTY. This rendered any duty of the Tribunal to return an illegally

abducted individual to the State of refuge moot, consequent to a finding of illegal abduction and

corresponding lack of jurisdiction, as a State so obligated would be required to immediately

thereafter return the individual to the Tribunal. As above, neither RNM nor Orangestan were

obligated to extradite N to USM in the absence of prosecutions in either country. Therefore, the

124 Eichmann.

125Michell, 1996; Loan, 2005, pp.253-300.

126 Ker (US); Frisbie (US); Alvarez-Machain (US); Yunis (US); Re Argoud (France).

127 See Newspapers A, B, C, D, E, F, and G

128 Nikolic 1 and 2.

129 Nikolic 1, para.113.

 20

same reasoning cannot be applied. Moreover, Nikolic 1 affirms MCMD as “the ruling principle for

cases where representatives of a State have been involved in a violation of international law and

which amounts to a violation of the rule of law”. 130 The ICTY, therefore, did not deny MCMD,

simply finding, on the facts and applicable law, that it could not be invoked in that case. The

abduction of N was in violation of international law and that this breach constitutes a violation of

the rule of law. It may also be argued that Nikolic 1 and 2 only permit MCMD in cases of substantial

mistreatment of the abductee. However, the above considerations falsify this claim. Nikolic 1

expressly stated that the legal framework under which the case was heard, as detailed above,

determined that the above ICCPR case law could have only limited application. 131 The fact that the

present case is between two States, one of which has abducted a national of another, in no way

denies, by Nikolic 1, that arbitrary arrest and detention may be sufficient to engage MCMD.

The claim may be made that the assertion of UJ permits the employment of extra-territorial

enforcement jurisdiction under international law. For this, it must be admitted, there is some (albeit

very limited and minimal) international support. 132 Nonetheless, even among those who assert the

possibility of such an exception, it is claimed that the exception can only be engaged upon

exhausting all other possible avenues of cooperation133 which, as stated above, USM have not

pursued. Moreover, eminent jurists assert that Eichmann, which may be thought the constitute such

an exception par excellence, cannot be taken to have pursued anything of the sort. Rather,

“[h]owever atrocious Eichmann's offences, Israel could not justify its violation of Argentina's

sovereignty by the universality principle or any other jurisdictional principle of international

law”.134 It appears clear, therefore, that, even in respect of suspects charged with the crime of

130 Nikolic 1, para.87.

131 Nikolic 1, para.113.

132 Third Restatement; Barbie (France); McNeal and Field, 2006-2007, pp.491-522.

133Michell, 2005, fn.205.

134Randall, 1987-1988, pp.785-841, p.813.

 21

genocide, the claim of UJ over such crimes cannot defeat the illegality of an abduction in pursuance

of the exercise of the enforcement jurisdiction of the State claiming UJ.

Commentators have condemned the “use of unilateral self-help and extraterritorial force at a time

when the perceived post-Cold War norm for international enforcement, whether political or

criminal, focuses on joint and collaborative action through established procedures”, which N's

abduction surely constitutes.135 In contrast to the cooperative, UN-legitimated regime in which the

abduction and trial of Dragan Nikolic took place, N's abduction represents a deviation from

established norms and the pursuit of justice in RNM. Neither UNSC Resolution provides a legal

basis for the abduction of N, and on the contrary it is submitted that his abduction by USM

represents a subversion of UN efforts to do justice in RNM through the Hybrid Tribunal.

It may be claimed that MCMD must yield an exception for those convicted of serious crimes such

as genocide. As stated above, denial of jurisdiction in this case need not entail impunity. Moreover,

the rule of law demands the refusal by States to engage in enforcement measures illegal under

international law. MCMD enshrines the established maxim, ex injuria non oritur actio,136 refusing

States the benefit of their wrongful acts. Judicial decisions must not provide incentives for those

states with sufficient power and resources to exercise self-help to the detriment of the rule of law,

notwithstanding “the immense degree of public revulsion” which may attach to the crimes

charged.137 Other instances of extra-territorial abduction such as hostage-taking, enforced

disappearances, hijacking, and 'extraordinary rendition' are measures the international community

widely condemns as illegal and gross violations of human rights. As has been stated judicially, 138

MCMD is a critical step in upholding the rule of law between and within nations; it demands that

135Bush, 1992-1993, p.943; also Liput, 1985, pp.38-39.

136Costi, 2003, p.22; Morgenstern, 1952, p.279; Garcia-Mora, 1957, p.446; de Schutter 1965,
p.123; Mann, 1989, p.347; Currie, 2007, p.356-7.

137 Mullen (UK).

138 Bennett, judgement of Lord Lowry.

 22

“abducted criminals should be treated on the same footing, whether they are drug traffickers,

fraudsters, terrorists or war criminals”.139

For States to seek to try foreign nationals whose conduct abroad they have criminalised by domestic

statute, and whom they have abducted in the enforcement of that statute, is for national sovereignty

to extend past national boundaries and onto the international plane. UJ permits the legal extension

of sovereignty onto the international plane, but the denial of MCMD constitutes a carte blanche for

the unlimited exercise of enforcement jurisdiction by the powerful, anywhere in the world and in

respect of whomever they might determine falls under their jurisdiction. This, it is submitted, will

truly bring the “chaos” of which judicial dicta have warned, 140 so inimical to the rule of law and the

protection of human rights. If, as has been submitted, the exercise of UJ demands substantial

safeguards against its misuse, it is surely evident that a tool for the extension of State power even

greater in strength, especially when employed by the strong against the weak, should face

safeguards against its abuse. The international customary law norm of MCMD is such a safeguard.

4. USM's obligations consequent to the illegality of the abduction:

All states bear the obligation to “to refrain from all illegal acts, whether by the positive actions of its

authorities, or by omission or by a refusal to lend assistance or to do justice”. 141 An internationally

wrongful act is the product of three constitutive elements, namely, attribution, breach, and absence

of circumstances precluding wrongfulness,142 as stated by the ARS and its commentaries, the

relevant part of which (Part 1) is customary law.143 It is a general principle of international law that a

state's commission of an internationally wrongful act generates an obligation on that state to make

reparations, which entails restitution, that is, restoration of the status quo ex ante, if materially

139Costi, 2003, p.98.

140Arrest Warrant Separate Opinion of President Guillame.

141 Polish Nationality.

142ILC, ARS, Article 2 and Chapter V of Part 1; Iranian Hostages.

143 Nicaragua.
 23

possible and not disproportionate.144 Injury done to an individual constitutes an injury done to the

State of which he or she is a national, and that State may claim remedies as such. 145 It is accepted

that failure to protest the illegality constitutes waiver of the requirement of restitution.

Compensation for costs incurred in effecting repair is available,146 and satisfaction.147

Restitution entails the return of N to RNM. It is a clear rule of customary international law that

protest by the injured State and the request for return entails that the abductee must be repatriated to

the injured State, shown by State practice and opinio juris.148 Eichmann represents an significant

minority in suggesting the contrary. This is the appropriate remedy for the breach of RNM's

sovereignty. USM has ratified the ICCPR and is therefore bound by it under international law 149 The

customary law right against arbitrary arrest and detention binds USM regardless. As affirmed by

scholars,150 Article 9 ICCPR demands that “any person, whether he is charged with fraud or

genocide, must be released if the judge finds that that person's (arrest and) detention is unlawful”, 151

and which may require an apology by the violating and State and permission of the abductee to

leave the country.152 This is the required remedy for both the customary international law right and

Art.9 ICCPR. The Court has the power to impose binding legal obligations on States, 153 and can

144 ARS, Articles 31, 34, and 35; Rodriguez; Chorzow Factory, p.47; Spanish Zones; Texaco.

145 Mavrommatis.

146 ARS, Art.36, and commentary para.34; Gabčikov-Nagymaros, para.152.

147 ARS, Art.37

148 Walters; Cochrane; Anderson; Kohosed; Bratton; Derrick Hills; Marker; Lafond; Martin;
Wilson; Blair; Grogan;. Vincenti; Tyler; Trent; Blatt and Converse; Gonzales; Nogales; Martinez;
Lopez; Alvarez-Machain; Two Texas Fugitives; See also Third Restatement, cmt. C; ARS, Part II,
Comm'n 3 and 9, and Article 6; Harvard Research.

149C.C. 7.

150Rodley, 1999, p.338; Swart, 2001, pp.197-207.

151Paulussen, 2010, p.161; see also Morgenstern, 1952, p.279.

152 Celiberti de Casariego, para.46; also Lopez.

153Lagrand.
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therefore bind USM to provide such a remedy.

Orangestan has not objected nor requested N's return,154 and is not party to the dispute, and therefore

RNM cannot claim a remedy in respect of the breach of Orangestan's sovereignty.

It may be argued that Nikolic 1 supports a claim that USM can have no obligation to return N. In

that case, the Court affirmed the maxim, dolo facit qui petit quod statim redditurus est, that a person

acts with deceit who seeks what he will have to return immediately. 155 It may be argued therefore

that RNM has an obligation to extradite or prosecute N and in having failed to discharge it cannot

request N's return as RNM would be required extradite him to USM immediately thereafter.

However, no such general obligation can be said to exist in customary international law. As

commentators affirm,156 State practice is too conflicting on this point and is far from evidencing any

clear opinio juris. In the alternative, to the extent that any such rule can be said to exist, it exists

only in relation to specific crimes as governed by treaty, such as they might incorporate the claimed

rule.157 No such obligation can be derived from the Genocide Convention itself.158 It may be argued

in the alternative that UJ is in itself an obligatory rule and this obligation would be sufficient to

engage the claim. There is only limited support for this proposition 159 and State practice does not

support a claim for its customary law status in respect of genocide, as scholars affirm. 160 Blaskic

may provide support for the contrary view,161 but it is contradicted by Furundzija which affirms “the

154C.28.

155Nikolic 1, para.104.

156Bassiouni and Wise, 1995, pp.43-69.

157Benavides, 2001, pp.32-36.

158Schabas, 2009, p.475.

159Brussels Principles; DCCAPSM, Articles 8, 9, 17, 18, and 20.

160Inazumi, 2005, p.142; Thalmann, 2009, pp.244-247.

161Blaskic, 1997, para.29.

 25

right to prosecute”162 only. The latter is supported by ICJ opinion. 163 Therefore, it is submitted that

UJ is a permissive rule only. In the alternative, as above, RNM has not breached any such obligation

to the extent that one may exist in international law. Whilst it has failed to extradite, 164 the

considerations above165 falsify the claim that RNM has thus far failed in its duty to prosecute N.

Moreover, an obligatory rule to exercise UJ does not of itself entail an obligation to extradite in

addition to an obligation exercise UJ through prosecution. Regardless, the maxim, in Nikolic 1, was

take to apply to remedies for State sovereignty violations and not human rights violations. 166

Therefore, were the maxim applicable and it supported a denial of the return of N for violation of

RNM or Orangestan's sovereignty, it would have no bearing on the remedy for violations of human

rights law. Therefore, for these reasons, no such claim can be made.

Submissions

That the Court finds USM's courts to lack jurisdiction over the alleged acts of N and consequently

must annul all criminal proceedings against him and provide assurances that his prosecution will not

be sought again.

That the Court finds USM to have violated N's immunity and consequently must annul all criminal

proceedings against him and provide assurances that his prosecution will not be sought again.

That the Court finds USM to have illegally abducted N from Orangestan and consequently must

return N there, or, in the alternative, must permit N to leave USM himself, providing compensation

to RNM for any expenses incurred and assurances that N will not face abduction in future.

162Furundzija, 1998, para.156 (italics inserted).

163Bosnia and Herzegovina v. Serbia and Montenegro, 2007, para.442.

164C.23.

165Discussion of universal jurisdiction in A.3.

166Nikolic 1, 97-105.