STATEMENT OF THE ISSUES

STATE OF THE FACTS

STATEMENT OF THE ARGUMENTS

CONCLUSSION

STATEMENT OF THE ISSUE

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TABLE OF CONTENTS

1. Is the trial of Vortex legal under International Law?

STAEMENT OF THE FACTS

Samadam was a sovereign state wracked by civil war between the Essentials and
the Derivatives. The Essentials believed in an afterlife for all that was only possible
through spiritual harmony achieved by mass prayer. The Derivatives on the other hand
believed that only an individual could enter the afterlife by paying for admission through
the accumulation of private wealth. There were no racial differences between Essentials
and Derivatives. Essentials wished to establish a theocratic government with compulsory
religious services. Derivatives supported a free enterprise economy with capital
punishment for theft.
Vortex was the head of an interrogation unit in the Bacharat, the security arm of
the Essentials. Some members of his unit conducted interrogations of suspected
Derivatives aboard an aircraft in flight. Suspected Derivatives who did not co-operate in
interrogation sessions were thrown out of the aircraft to their death. The Bacharat took
an active part in the destruction of houses believed to be inhabited by Derivatives and the
kidnapping of children whose parents were suspected of being Derivatives.

As a result of the collapse of the social order in Samadam there was an influx of
refugees into the neighbouring sovereign state of Numidia. Numidia sent armed forces
into the territory of Samadam and established a provisional government under its control
to restore order. The provisional government convened a special court to hear
prosecutions for criminal breaches of international law that occurred during the civil war.
Vortex was arrested and charged with war crimes, crimes against humanity and genocide.
If convicted by the special court, Vortex may be sentenced to death.

STATEMENT OF THE ARGUMENTS

Is the trial of Vortex legal under International Law?
A. Numidias Illegal Entry and Occupation of Samadam

a. Does not fall under the concept of humanitarian intervention

by another state(s) with the stated objective of ending or reducing

suffering within the first state. That suffering may be the result of civil

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Humanitarian intervention refers to armed interference in one state

war, humanitarian crisis, or crimes by the first state including genocide.

The goal of humanitarian intervention is neither annexation nor
interference with territorial integrity, but minimization of the suffering of
civilians in that state. The claimed rationale behind such an intervention is
the belief, embodied in international customary law in a duty under certain
circumstances to disregard a state's sovereignty to preserve our common
humanity.

The right to interfere, which constitutes jus ad bellum, a term

coined by the philosopher Jean-Franois Revel in 1979, is the recognition
of the right of one or many nations to violate the national sovereignty of
another state, when a mandate has been granted by a supranational
authority. In practice, because of humanitarian emergencies, it is common
that the mandate is provided retroactively; for instance, France's
intervention in Cte d'Ivoire was made initially without a UN mandate.
The duty to interfere is an obligation which falls to all nation-states
to provide assistance at the request of the supranational authority, to the
extent possible. Obviously, this notion is the closest to the original concept
of humanitarian intervention, except that a right translates into a duty, and
is managed by a supranational authority.
138. Each individual State has the responsibility to protect its populations
from genocide, war crimes, ethnic cleansing and crimes against humanity.
This responsibility entails the prevention of such crimes, including their
incitement, through appropriate and necessary means. We accept that
responsibility and will act in accordance with it. The international
community should, as appropriate, encourage and help States to exercise
this responsibility and support the United Nations in establishing an early
warning capability.
139. The international community, through the United Nations, also has
the responsibility to use appropriate diplomatic, humanitarian and other
peaceful means, in accordance with Chapters VI and VIII of the Charter,
to help protect populations from genocide, war crimes, ethnic cleansing
and crimes against humanity. In this context, we are prepared to take
collective action, in a timely and decisive manner, through the Security
Council, in accordance with the Charter, including Chapter VII, on a caseby-case basis and in cooperation with relevant regional organizations as
manifestly fail to protect their populations from genocide, war crimes,
ethnic cleansing and crimes against humanity. We stress the need for the

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appropriate, should peaceful means be inadequate and national authorities

General Assembly to continue consideration of the responsibility to

protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity and its implications, bearing in mind the
principles of the Charter and international law. We also intend to commit
ourselves, as necessary and appropriate, to helping States build capacity to
protect their populations from genocide, war crimes, ethnic cleansing and
crimes against humanity and to assisting those which are under stress
before crises and conflicts break out. 2005 World Summit outcome
document,
The United Nations Security Council Resolution 1674, adopted by
the United Nations Security Council on April 28, 2006, "Reaffirm[ed] the
provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome
Document regarding the responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity" and
commits the Security Council to action to protect civilians in armed
conflict.

In February 2008, the UN Secretary-General Ban Ki-moon

appointed Edward Luck as his Special Adviser for the R2P at the Assistant
Secretary-General level.
It is clear that the action made by the Numidia does not fall under
the concepts as stated above as a result their act is illegal.
b. Valid intervention under international law is not satisfied

Numidias intervention into Samadam with its armed forces is not

justified.
In the book of Arren and Beck:
Traditional rule and The neutral none intervention rule, allows
intervention to provide assistance to widely recognized government by its
and to a certain point it can also provide assistance to the rebels. In this
case none of the parties in conflict is a government, and neither of the
sides requested for assistance.
In View Principles of Non- Intervention
In the words of Brownlie, the corollary of the independence and
equality of states is the duty to refrain from intervention in the internal or
under general international law are said to be within the domestic

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external affairs of other states. Mattes within the competence of states

jurisdiction of states. Thus, the intervention made in Samadam does not

fall within the master principle of non-intervention. (Brownlie, page 290)

Under United Nations General Assembly Resolution No. 2131

(XX), which declared that no State shall organize, assist, foment, finance,
inciteor interfere in the civil strife in another State. In did this act that
should not be done was exactly what the Numidia did.

c. Numidia has no right to make a self-determined or unilateral decision to

use force

United Nation Security Council

The issue on the influx of refugees towards Numidia if to be

determined as a threat to peace, still Numidia cannot unilaterally
determine such and send its armed forces to Samadams territory and to
the extent convened a special court and worse they even sentenced Vortex
to death.
Under the UN Charter, whenever a situation rises to the level
which challenges international peace and security, it is the Security
Councils task to investigate and decide if there is indeed a threat to peace,
breach of the peace, or act of aggression.

Upon Security Councils

determination of the existence of any of those three circumstances, it will

issue recommendations, whether military or non-military actions will be
exercised, as provided in Articles 41 and 42 of the UN Charter. It is only
after the Security Council issues a recommendation can states take action
based on the recommended acts. Numidia contravenes the international
law by exercising the power or authority vested to the Security Council.

Use of Force allowed under United Nations Charter

Nothing in the facts that indicates Nurmidias act was done under
the recognized actions to use force against another state.
Article 51of the UN, provides for the right of states to self-defense.
This is the only recognized exception in the Charter to the rule against
were the Nurmidia will be justified to use force.

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unilaterally deciding to use force. The acts of the refugees is not a ground

Another exception to the prohibition against the use of force is a

states compliance to a UN Security Councils resolution allowing the use
force, acting under Chapter VII of the Charter.
d. The Intervention is a Violation of Samadams Sovereignty

The entry of Numidian forces is a clear offence to the territorial

integrity of Samadam because Samadam is a sovereign state. It is therefore
accorded the rights and protections as embodied in the United Nations (UN)
Charter. Article 2(4) of the UN Charter All members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations. This provides protection
for all states, also with this an obligation arises to all member states, to
prohibit any use of force against the territorial integrity and political
independence of a state, or in any other manner inconsistent with the Purposes
of the United Nations.
Jus Cogens
Neither Samadam nor Numidia is a member of the United Nations,
Numidia cannot avoid its obligation not to use force against a fellow state,
because the prohibition against the use of force is considered jus cogens.
And derogation of jus cogens is never allowed.
A peremptory norm (also called jus cogens or ius cogens, Latin for
"compelling law") is a fundamental principle of international law which is
accepted by the international community of states as a norm from which
no derogation is ever permitted.
There is no clear agreement regarding precisely which norms are jus
cogens nor how a norm reaches that status, but it is generally accepted that
jus cogens includes the prohibition of genocide, maritime piracy, slaving
in general (to include slavery as well as the slave trade), torture, and wars
of

aggression

and

territorial

aggrandizement.

http://en.wikipedia.org/wiki/Peremptory_norm)

B. The Special Court is illegal

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Legitimacy of the court

The entry alone of the Nurmidia is illegal therefore the special

court which was created by the Nurmidia is illegitimate with such status
the court cannot hold a legitimate trial and could not have an enforceable
judgement.

C. The establish court will not acquire jurisdiction over the acts of the Vortex
Jurisdiction, Sovereignty
The special court cannot have jurisdiction over the Vortex because
the special court was established after the crimes were committed.
Therefore their jurisdiction cannot retroact to prosecute the Vortex. On
another point they can have jurisdiction by the consent of Samadam to go
away with the issue of its sovereignty.
It will be proper if the domestic courts of Samadam will be the one
who will prosecute the offenders.
Jurisdiction may be referred to in the terms of sovereignty or
sovereign rights. A sovereign state, like Numidia, has the correlative
duty to respect the territorial sovereignty, and the privilege in respect of
territorial jurisdiction, referred to as sovereign immunities. (Browlie, page
289)
The principal corollaries of the sovereignty and equality of states
are: (1) a prima facie exclusive jurisdiction over a territory and the
permanent population living there; (2) a duty of non-intervention in the
area of exclusive jurisdiction of other states; and (3) the dependence of
obligation arising from customary law and treaties on the consent of the
obligor. The third one of these has certain special applications. It means
that the jurisdiction of these tribunals depends on the consent of the
parties. (Brownlie, page 287)

In comparison with the Jurisdiction of International Criminal

Tribunals

Previously there were courts which tried crimes such as what the
Vortex committed. This courts or tribunals was created and was vested
with authority not by the unilateral decision of a single country alone but
Security Council.

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by bilateral agreements or by action of the United Nations through the

The

International

Criminal

Tribunal

for

Nuremburg

was

constituted at the end of World War II through bilateral treaty agreements

of the allied powers to punish Nazi war criminals. Subject matter
jurisdiction was vested through a treaty establishing the courts charter.
Although Germanys consent was not solicited, the courts creation and its
charter was nevertheless binding upon Nazi criminals, as the invasion and
power take-over in Germany was a valid course of action to end the
impunity enjoyed by those who caused atrocities shocking to mankind.

The International Criminal Tribunal for the former Yugoslavia, on

the other hand, was created under UN Security Council Resolution 827,
while the International Criminal Tribunal for Rwanda was created under
UN Security Council Resolution 955. Further, the Special Court for Sierra
Leone was set up jointly by the Government of Sierra Leone and the
United Nations, while the United Nations Transitional Administration in
East Timor, created under United Nations Security Council resolution
1272 to administer the territory, created panels with exclusive jurisdiction
over serious criminal offenses.
As compared to the International military tribunal for the Far East,
which has an impression that such tribunal was created, and its jurisdiction
was vested unilaterally by the United States. Still it would not fall in the
same line as of IMTFE they can be separated by the truth of the matter is
that its creation in January 1946, according with the Proclamation of
Potsdam of July 26th 1945, upon the order of Gen. Douglas MacArthur in
his supreme capacity as Commander of the allied Powers in the Far East.
Thus, the Postdam Proclamation was the basis of the creation of the
IMTFE, as agreed upon by the three powers behind it the United States,
Great Britain, and China.
Clearly by the facts stated above no prior court would be a basis of
the Nurmidia and there is no legal basis under international law for
Numidia to create a court on its own.
CONCLUSION
From the first act of Numadia in entering the territory of Samadam was already
illegal and without consent by the government of Samadam. The acts was not even
undertaken under the rules of intervention of the recognized principles of international
law and under the UN charter, therefore will only result to an illegitimate court, thus the

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trial of Vortex is illegal under International Law.

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ILDE DAVID S. CAJAYON