CLEA Moot, 2016 - Best Memo - Respondent

Memorial for United Republic of ASIAN
IN
Team Code: CLEA003
THE
I NTERNATIONAL C OURT
OF
J USTICE
AT
THE PEACE PA LACE, THE HAGUE
THE NETHERLANDS
United Repub lic o f ASIAN /Rep ub lic o f Andorra
(Applicant)
(Respondent)
M e mo r i a l f o r t h e R e s p o n d e n t
- U n i t e d Re p u b l i c o f AS I AN C LE A ( A s i a - I n d i a ) M o o t i n g C om p e t i t i o n 2 0 1 6
Team Code: CLEA003
TABLE OF CONTENTS
INDEX OF ABBREVIATIONS .......................................................................................................... 2
INDEX OF AUTHORITIES .............................................................................................................. 3
STATEMENT OF JURISDICTION ..................................................................................................... 7
STATEMENT OF FACTS ................................................................................................................ 8
QUESTIONS PRESENTED ............................................................................................................ 11
SUMMARY OF PLEADINGS ......................................................................................................... 12
ARGUMENTS ADVANCED .......................................................................................................... 15
I.
The Prosecution of Mr. TTK Ganzard in URA is not in violation of United Nations
Convention against Transnational Organized Crime ........................................................... 15

II. Mr. TTK Ganzard does not enjoy immunity from the jurisdiction of United Republic
of ASIAN. ............................................................................................................................ 30
III.
It is not a diplomatic mission because the act of doing so ignores various provisions
of the Vienna Convention of Diplomatic relations .............................................................. 35

IV.
Even if there was violation of diplomatic immunity, Andorra cannot claim any
damages for the same. .......................................................................................................... 39

CONCLUSION............................................................................................................................. 42
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INDEX OF ABBREVIATIONS
Paragrph
Art.
Article
H.R.
Human Rights
URA
United Republic of ASIAN
RoA
Republic of Andorra
ICJ
International Court of Justice
U.N.I.C.E.F.
United Nations Childrens Fund
U.N.E.S.C.O.
United Nations Educational, Scientific and

Cultural Organiszation
U.N.C.T.O.C.
United
Nations
Convention
on
Transnational Organised Crime

I.C.T.R.
International Crimina Tribunal for Rawanda
I.L.C.
International Law Commission
P.C.I.J.
Permanent Court of International Justice
U.N.C.A.C.
United
Nations
Convention
Against
Corruption
U.N.S.C.
United Nations Security Council
U.N.G.A.
United Nations General Assembly
V.C.D.R.
Vienna Convention on Diplomatic Relations
V.C.C.R.
Vienna Convention on Consular Relations
V.C.L.T.
Vienna Convention on law of Treaties
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INDEX OF AUTHORITIES
Treaties and Conventions
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances (Adopted on Januray 24, 1988). ........................................................................ 16
United Nations Convention against Transnational Organized Crime (Adopted on November
15, 2000). ............................................................................................................................. 15
Rome Statute of the International Criminal Court, (Adopted on July 17, 1988). .................... 17
Tretises and Commentaries
David McClean, TRANSNATIONAL ORGANIZED CRIME: A COMMENTARY
ON THE
UN
CONVENTION AND ITS PROTOCOLS, 57, 1st edn., (2007). ...................................................... 16

El Zeidy, THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL CRIMINAL LAW: ORIGIN,
DEVELOPMENT AND PRACTICE, 157, 2nd edn., (2007) ........................................................... 17
H. Fox and P. Webb, The Law of State Immunity, 549-560 (3rd edn., 2013). ........................ 31
J.M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law: Volume
1 and 2, (Cambridge University Press 2005) ....................................................................... 22
James Crawford, Brownlies Principles of Public International Law, 313, 8th edn., (2013). .. 17
M. C. Bassiouni, International Crimes, Jus Cogens and Obligatio Erga Omnes(1996) 59
Law & Contemporary Problems 63. .................................................................................... 22
M. N. Shaw, INTERNATIONAL LAW, 697 (6th edn. Shaw, 2008). .............................................. 29
Malcolm N. Shaw, INTERNATIONAL LAW, 82, 6th edn., ( 2008). ............................................. 26
R. Peter, CHASING DIRTY MONEY, 113, 134 (2004). ............................................................... 19
S. D. Murphy et al, LITIGATING WAR: MASS CIVIL INJURY
AND THE
ERITREA-ETHIOPIA
CLAIMS COMMISSION, 381 (2013). ....................................................................................... 38
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William Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY
ON THE
ROME
STATUTE, 101102, 2nd edn., (2010). ................................................................................... 23

Decisions of ICJ
(Arrest Warrant Case of 11 April 2000 [Democratic Republic of the Congo v Belgium] para.
52; ........................................................................................................................................ 30
Arrest Warrant, ICJ Reports 2002 p 3, 81 (Judges Higgins, Kooijmans & Buergenthal)....... 21
Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), ICJ judgment of 4 June 2008, at para. 170............................................................ 31
Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), Dissenting opinion of Judge Ad Hoc Van den Wyngaert, 2002, 134
(International Court of Justice). ........................................................................................... 25
Case Concerning the Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States of America), Judgment, 1986, ICJ Reports, 14 (International
Court of Justice). .................................................................................................................. 16
S.S. Lotus (France v. Turkey), Judgement, 1927, PCIJ Reports, 10 (Permanent Court of
International Justice). ............................................................................................... 17, 22, 27
United States v Iran, Judgment, (1980) ICJ Reporter, 17 (International Court of Justice). .... 37
Other Decisions
A-G Israel v Eichmann, Supreme Court Judgment of 29 May 1962, (1968) 36 International
Law Reports 304, para 12 (e). .............................................................................................. 21
Enrica Lexie Case, 2012. ......................................................................................................... 33
Eritreas Diplomatic Claim, Final Award, 2009 (para 114). ................................................... 39
Eritreas Diplomatic Claim, Partial Award, 2007 (para 36). ................................................... 39
Ethiopias Port Claim, Final Claim, 2005 (para 6). ................................................................. 40
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Federal Republic of Germany v. Miltiadis Margellos, Case 6/17-9-2002 (Greece: Special

Supreme Court, 2002). ......................................................................................................... 38
Ferrini v. Repubblica Federale di Germania, 87 RDI (2004) 539 (Italy: Cassazione), at paras
7 and 8.2. .............................................................................................................................. 38
Final Award, Ethiopias Damages Claims, 2009 (para 226, Annexure 16). ........................... 40
Greek Citizens v. Federal Republic of Germany (The Distomo Massacre Case), 42 ILM
(2003) 1030 (Germany: Sup. Ct, 2003), at 1033. ................................................................ 39
Hullett v The King of Spain (1828). ........................................................................................ 33
National Commissioner of the South African Police Service v Southern African Human
Rights Litigation Centre and Another [2014] ZACC 10. .................................................... 17
Proscutor v Stakic, Case No. IT-94-1-T (September 2, 1999) (International Criminal Tribunal
of Rwanda). .......................................................................................................................... 24
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 581 (Sept 2, 1998). ................. 22
Prosecutor v. Bisengimana, 125-26, ( May 21, 1999) (International Criminal Tribunal for
Rwanda). .............................................................................................................................. 24
Prosecutor v. Kayishema and Others, Judgement, 127-29, ( May 21, 1999) (International
Criminal Tribunal for Rwanda). .......................................................................................... 24
Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment, 42728 (June 12,
2002). ................................................................................................................................... 23
S v Basson [2005] ZACC 10. .................................................................................................. 17
State Prosecutor v. G.G., 5 September 1997............................................................................ 26
The Minister of Justice and Constitutional Development v. The South African Litigation
Centre (867/15) [2016] ZASCA (15 March 2016). ............................................................. 32
USA v Wagner (1887) LR 2 Ch App 582................................................................................ 30
UN Resolution and Documents
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General Convention on Privileges and Immunity of United Nations, 1946. ........................... 31

United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004.
.............................................................................................................................................. 30
Journal Articles
Available
at
http://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-limits-on-
prosecution-of-corruption-related-money-laundering-by-foreign-officials/........................ 30
Foakes, Immunity for International Crimes? Developments in the Law on Prosecuting heads
of State in Foreign Courts, CHATHAM HOUSE BRIEFING PAPER, November 2011 (IL BP
2011/2). ................................................................................................................................ 30
Immunities of state officials, international crimes, and foreign domestic courts. European
Journal of International Law Volume 21, No. 4, 2010, pp. 815-852. .................................. 31
Sonja B. Starr, Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis
Situations, 1304-1305, NORTH WESTERN UNIVERSITY LAW REVIEW, 101(3), (2007). ....... 23
T. C. W. Lin, Financial Weapons of War, MINNESOTA LAW REVIEW (100), 1377, 1381
(2016). .................................................................................................................................. 19
Other International Regulations and Documents
European Parliament and Council Directive 2002/83/EC of 5 November 2002 concerning life
insurance. ............................................................................................................................. 19
International Crimes and International Criminal Court Act, 2000. ......................................... 26
Military Penal Code, Military Court of Cassation ................................................................... 26
The Statute of the International Court of Justice, 1945. .......................................................... 39
Vienna Convention on Diplomatic relations (1961). ............................................................... 34
Miscellaneous
French prosecutors throw out Rumsfeld torture case, Reuters, November 23, 2007. ............. 31
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STATEMENT OF JURISDICTION
The Republic of Andorra (Applicant) and the United Republic of ASIAN (Respondent),
submit their dispute to the International Court of Justice under a Special Agreement pursuant
to Article 36, Paragraph 1 of the ICJ.
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STATEMENT OF FACTS
The United Republic of ASIAN (hereinafter URA) is a highly industrialised country. It is a
permanent member of United Nations Security Council (UNSC). On the other hand Republic
of Andorra is a developing country. It is a small costal economy governed by Mr. TTK
Ganzard, the president. He seized power over three decades ago from the democratically
elected government in 1986, in a military coup. Since 1996, the country has been a
constitutional democracy with Mr. Kian Ganzard as its president. However, elections in the
past have been reported to be flawed and full of fraud. Further, the president of Andorra
exercises almost total control over the political system of Andorra.
Both these countries are founding members of United Nations, are parties to the Statute of the
International Court of Justice and are parties to the Vienna Convention on Law of Treaties.
International Civil Society and number of other NGOs working in the field of Human Rights
have made various allegations against the regime of Mr. Kian Ganzard. It has been alleged
that regime in Andorra is involved in Human Rights violations, suppressing dissent and
maintain tight control over the countrys wealth. Further, due to such policies people of
Andorra have endured poverty, illiteracy and lead an abysmal life standards despite the
remarkable economic growth of the Republic of Andorra.
In 2007, son of Mr. Kian, Mr. TTK Ganzard was appointed as the second vice-president of
the republic of Andorra. However, this post was not mentioned under the constitution of
Republic of Andorra. Along with being the second vice-president, Mr. TTK Ganzard also
held the portfolio of Defence and Strategic Administration.
In 2007, a human rights group on behalf of Accountability International, URA brought about
complaint against Mr. TTK Ganzard for money laundering and corruption. Based on this
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complaint investigating agency of URA undertook investigation and indicted Mr. TTK
Ganzard of Money-laundering. Thereafter many assets privately owned by Mr. TTK Ganzard
in URA were discovered.
Subsequently, prosecuting agency of URA prepared a case against Mr. TTK Ganzard on
charges including corruption, money-laundering and embezzlement of public funds.
However, Mr. TTK Ganzard denied the charges and questioned the jurisdiction of Domestic
courts of URA in the case. Meanwhile, he was appointed as Andorras Deputy Permanent
Delegate to UNESCO, which in turn happened to have its headquarters in URA.
It is further given that both URA and Andorra are parties and signatory to the United Nations
Convention against Transnational and Organised Crime (UNCTOC) and are parties to the
Vienna Convention on Diplomatic Relations (VCDR). Further, while Andorra is neither a
party nor a signatory to the Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, their Parts and Components and Ammunition, supplementing UNCTOC, URA has
ratified all three protocols supplementing UNCTOC.
In March, 2011 URA started the trial of case relating to Mr. TTK Ganzard before the
competent court of URA. Meanwhile, Mr. TTK Ganzard sold his $50 million palatial House
at 18, Rose Avenue to the Government of Andorra for an allegedly whooping sum of $310
million. Thereafter, Republic of Andorra through its communique dated 18/03/2011,
conveyed URA that the said house will be used as diplomatic mission of Republic of
Andorra. However, without considering the same, in the process of investigation, the police
of URA has stormed into palatial House at 18, Rose Avenue and seized the same with other
known properties of Mr. TTK Ganzard. The Republic of Andorra through its diplomatic note
has registered strongest possible protest against the seizure. Andorra has further said that such
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seizure is unauthorized and illegal. Thereafter URA responded to Andorra through its
communique dated 21/06/2011.
In the year 2014, Mr. TTK Ganzard was appointed the vice-president of republic of Andorra.
In December of the same year further allegations of dealing in illegal arms and ammunition
manufacture and human trafficking for the same were levied against Mr. TTK Ganzard by
another international NGO called Association for Trade against Arms.
Thereafter there were a series of diplomatic exchanges and negotiations between the
governments of two states. However the same failed. Presently both parties have agreed to
submit these matters to the International Court of Justice.
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QUESTIONS PRESENTED
I.
Does prosecution of Mr. TTK Ganzard in URA result in violation of provisions of

United Nations Convention on Transnational Organized Crime?
II.
Is Mr. TTK Ganzard immune from jurisdiction of United Republic of ASIAN?
III.
Was it illegal on part of United Republic of ASIAN to search and seize diplomatic
premises of Republic of Andorra?
IV.
Is United Republic of ASIAN liable to compensate Republic of Andorra for

damages arising out of violation of diplomatic immunity?
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SUMMARY OF PLEADINGS
I.
Prosecution of Mr. TTK Ganzard in URA does not result in violation of provisions of
United Nations Convention on Transnational Organized Crime.
It is submitted that the prosecution of Mr. TTK Ganzard is not in violation of Article 4 of
the UNCTOC, which talks about sovereign equality and non-intervention in the domestic
affairs. The offence of money laundering is not a domestic affair of Andorra and the offence
of corruption does not violate the complementarity principle.
Furthermore, it is submitted URA has jurisdiction over the crimes committed by Mr. TTK
Ganzard under UNCTOC. Since the offence of money laundering was committed in URA,
it has territorial jurisdiction over this offence. With regards to offences of corruption, illegal
manufacturing of arms and ammunitions and that of human trafficking, URA has universal
jurisdiction. Universal jurisdiction can be used for crimes against humanity because these
offences do not affect a particular nation but the entire international community as a whole.
The offences above-stated are all crimes against humanity, hence jurisdiction on basis of
universality can be established and exercised for all of them
II.
Mr. TTK Ganzard is not immune from jurisdiction of United Republic of ASIAN.
Diplomatic immunity is a limited principle under Vienna Convention on Diplomatic
Relations, 1961 and Vienna Convention on Consular relations, 1963. It is only provided to
prescribe number of certain individuals eligible for the same. In this case it is submitted that
Mr. TTK Ganzard does not have diplomatic immunity and subsequently URA can prosecute
him. This is because his position as second vice-president was not constitutionally
sanctioned. Further, he did not enjoy any immunity by virtue of holding portfolio of defense
and security. Additionally, he only enjoys limited immunity as the deputy-permanent
representative of Republic of Andorra to UNESCO. In fact, presuming but not conceding,
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even if Mr. TTK Ganzard enjoys immunity in any form, it will not be applicable in this
case.
III.
It was not illegal on part of United Republic of ASIAN to search and seize diplomatic
premises of Republic of Andorra.
There is only one broad procedure relating to the establishment of a diplomatic mission set
out in the VCDR and therefore it is essential and cannot be violated. The setting up of a
diplomatic mission by one country in another countrys land requires an essential element
which is consent. The Vienna Convention of Diplomatic rights has laid down a procedure
and certain guiding principles which elucidate this requirement. The procedure of obtaining
consent flows from Article 2 right on to Article 12 of the VCDR. It is submitted that the
move by the Republic of Andorra to convert the property of Mr. Gandzard into a diplomatic
mission by buying it and declaring it so is bad in law. This is so because it ignores various
provisions of the Vienna Convention on Diplomatic rights as mentioned above and
secondly, URAs consent does not exist in any scenario as they are the prosecuting party
who want Mr. Gandzard to be investigated for.
IV.
Even if diplomatic immunity was violated, United Republic of ASIAN is not liable to
compensate Republic of Andorra for damages arising out of violation of diplomatic
immunity.
Under the Vienna Convention on Diplomatic Relations and as per the principle of
customary law, violation of diplomatic immunity is an offence. In fact it is an offence by
one sovereign against another. However, there are no provisions under statutes or
customarily law that grant compensation under such circumstances. This is perhaps because
one sovereign state cannot sue another state for damages. Further, satisfaction in the form of
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liability finding itself is the appropriate form of reparation for the proven violation of
diplomatic law.
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ARGUMENTS ADVANCED
I.
The Prosecution of Mr. TTK Ganzard in URA is not in violation of

United Nations Convention against Transnational Organized Crime
It is submitted that the prosecution of Mr. TTK Ganzard is not in violation of UNCTOC
because firstly, it is not in contravention of Article 4 of this Convention [A]. Secondly, URA
has jurisdiction over the crimes committed by Mr. TTK Ganzard under UNCTOC [B].
[A]. Prosecution of TTK Ganzard is not in violation of Article 4 of UNCTOC
Article 4(1) of UNCTOC states that States Parties shall carry out their obligations under
this Convention in a manner consistent with the principles of sovereign equality and
territorial integrity of States and that of non-intervention in the domestic affairs of other
States.1 It is submitted that none of these principles are being violated firstly, the offence of
money laundering is not a domestic affair of Andorra [i] and secondly, the prosecution of Mr.
TTK Ganzard with respect to corruption follows the complementarity principle [ii] and the
[i]. OFFENCE OF MONEY LAUNDERING IS NOT A DOMESTIC AFFAIR OF ANDORRA
This principle of non- intervention within the UNCTOC convention has been derived from
paragraph 3 of Article 2 of the United Nations Convention against Illicit Traffic in Narcotic
Drugs and Pyschotropic Substances (the Vienna Convention) of 1988.2 Article 4 of the
Art. 4, United Nations Convention against Transnational Organized Crime (Adopted on November 15, 2000).
Art. 2, United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(Adopted on Januray 24, 1988).
2
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convention is not applicable in purely domestic cases.3 Hence, it is submitted that prosecution
relating to money laundering cannot be considered intervention in the domestic affairs of
Republic of Andorra since it is not a purely domestic case. Mr. TTK Ganzard has used public
funds of his country to buy luxury property and goods in URA4. Some of these assets include
a palatial house, a luxury mansion and a privately owned jet. The offence of money
laundering was completed when the proceeds of crime were invested in URA. Hence, the
offence committed by Mr.TTK Ganzard in relation to moneylaundering is not a purely
domestic affair. Therefore, there has been no violation of the principle of non-intervention in
the domestic affairs of Republic of Andorra.
Secondly, it has been held that to constitute intervention, the interference must be forceful
and dictatorial or coercive in nature, in effect depriving the state intervened of the control
over the matter in the question.5 It is submitted that acting under an international law for an
international crime is not a forcible or dictatorial move at all; it is actually a procedural move,
which allows both parties to present their case in front of a neutral highly qualified third
party. It is submitted that the elements of coercion, dictatorship and forcefulness are not
present in any way.
[ii]. THE PROSECUTION OF MR. TTK GANZARD WITH RESPECT TO CORRUPTION FOLLOWS THE
COMPLEMENTARITY PRINCIPLE
As discussed above, the prosecution of Mr. Ganzard with respect to the offence of corruption
in URA follows the principle of universal jurisdiction. It is conceded at the outset that while
exercising such universal jurisdiction, the prosecuting state is barred from violating the
3
David McClean, TRANSNATIONAL ORGANIZED CRIME: A COMMENTARY ON THE UN CONVENTION AND ITS
PROTOCOLS, 57, 1st edn., (2007).
4
Moot compromis, page 14, 7.
5
Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.
United States of America), Judgment, 1986, ICJ Reports, 14 (International Court of Justice).
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principle of non-intervention in the domestic affairs of another state.6 This is based upon the
principle that priority should be given to territorial jurisdiction over any other form of
jurisdiction. In the case of SS Lotus7, it was held that there were two complementary
principles regarding territorial jurisdiction. One of them stated that the states retain a wide
measure of discretion to exercise jurisdiction within their own territory, with regard to acts
committed beyond their borders. Later, the ICC statute8 incorporated within itself the
principle of complementarity, which states that the States parties may take the lead in
investigating and prosecuting international crimes.9 The ICC will only undertake
investigations and prosecutions as a court of last resort where states parties are unwilling or
unable to do so.
It is well recognized now that this principle of complementarity is applied where states are
prosecuting individuals under the power of universal jurisdiction. Hence, in order to avoid
intervention within the domestic affairs of another state, the prosecuting state can only
prosecute, if the state with the territorial jurisdiction is unwilling or unable to prosecute the
accused.10 It is submitted that the accused has a high position of power within Republic of
Andorra. He was the Second Vice-President, also holding the portfolio for defence and
security.11 Later in 2014, he has become the Vice-President of the country.12 Neither has
Republic of Andorra launched an investigation on its own or has indicated that it is willing to
do so. A time period of almost 5 years has elapsed since when Accountability International
brought a complaint against TTK Ganzard in the year 2009. This is more than a reasonable
period of time to launch an investigation against an individual who is accused of an grave
James Crawford, Brownlies Principles of Public International Law, 313, 8 th edn., (2013).
S.S. Lotus (France v. Turkey), Judgement, 1927, PCIJ Reports, 10 (Permanent Court of International Justice).
8
Art. 17, Rome Statute of the International Criminal Court, (Adopted on July 17, 1988).
9
El Zeidy, THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL CRIMINAL LAW: ORIGIN, DEVELOPMENT
AND PRACTICE, 157, 2nd edn., (2007); S v Basson [2005] ZACC 10.
10
National Commissioner of the South African Police Service v Southern African Human Rights Litigation
Centre and Another [2014] ZACC 10.
11
12
6
7
17
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offences. All these facts lead to the single conclusion that the Republic of Andorra is
unwilling to launch an investigation into the offences of their Vice- President. Therefore, the
prosecution of Mr. TTK Ganzard for offence of corruption does not intervene in the domestic
affairs of Andorra.
[B]. URA has jurisdiction over the crimes committed by Mr. TTK Ganzard
Article 15 of UNCTOC deals with the aspect of jurisdiction of the parties to the convention.
It is submitted, firstly, that the URA has territorial jurisdiction over the offence of money
laundering [i]. Secondly, it is submitted that the prosecution of Mr. TTK Ganzard is not in
violation of Article 4 of the UNCTOC, which talks about sovereign equality and nonintervention in the domestic affairs. The offence of money laundering is not a domestic affair
of Andorra and the offence of corruption does not violate the complementarity principle.
Furthermore, it is submitted URA has jurisdiction over the crimes committed by Mr. TTK
Ganzard under UNCTOC. Since the offence of money laundering was committed in URA, it
has territorial jurisdiction over this offence. With regards to offences of corruption, illegal
manufacturing of arms and ammunitions and that of human trafficking, URA has universal
jurisdiction. Universal jurisdiction can be used for crimes against humanity because these
offences do not affect a particular nation but the entire international community as a whole.
The offences above-stated are all crimes against humanity, hence jurisdiction on basis of
universality can be established and exercised for all of them [ii].
[i]. URA HAS TERRITORIAL JURISDICTION OVER THE OFFENCE OF MONEY-LAUNDERING
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Article 6 of UNCTOC criminalizes money laundering.13It includes all predicate offences both
within and outside the jurisdiction of the state party in question.14 Article 2(h) defines a
predicate offence means any offence as a result of which proceeds have been generated that
may become the subject of an offence as defined in article 6 of this Convention.15 Proceeds
of crime mean any property derived, directly or indirectly through the commission of an
offence.16 Hence, corruption and embezzlement of public funds is the predicate offences
through which the proceeds have been generated. Any conversion of this property which is a
proceed of crime would be covered within the definition of money laundering.
17
It is
submitted that the act of buying assets in URA through the proceeds of crime is an act of
conversion. Hence, the offence of money laundering under UNCTOC is completed when Mr
TTK Ganzard purchases assets in URA.
Further, even if we look at money laundering generally, is process of transforming proceeds
of crime and corruption into ostensibly legitimate assets.18 Procedurally it involves three
stages. The first step is called placement and involves introducing cash into the financial
system.19 Second step is called laying and involves carrying out complex financial
transactions to camouflage illegal source of income.20 Lastly, third stage involves acquiring
wealth generated from the transaction of illicit funds and is called integration. 21 If any one of
13
Art. 6(2)(c), United Nations Convention against Transnational Organized Crime (Adopted on November 15,
2000).
15
Art. 2(h), United Nations Convention against Transnational Organized Crime (Adopted on November 15,
2000).
14
16
Art 2(e), United Nations Convention Against Transnational Organized Crime (Adopted on November 15,
2000).
17
Art. 6(1)(a)(i), United Nations Convention Against Transnational Organized Crime (Adopted on November
15, 2000).
18
European Parliament and Council Directive 2002/83/EC of 5 November 2002 concerning life insurance.
19
McClean, supra note 3, at 74.
20
Id.
21
R. Peter, CHASING DIRTY MONEY, 113, 134 (2004).
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the above stages is undertaken, it amounts to money laundering. Further, if any one of the
above stages is undertaken, it amounts to money laundering.22 From the perspective of
jurisdiction, if any of the above steps is undertaken in a particular jurisdiction, it creates cause
of action in that jurisdiction.23 It is submitted that in the instant case allegations suggest that
funds for acquiring property in URA are illegal.24 These funds have been acquired illegally as
per article 6 of UNCTOC from the proceeds of crime. These crimes include corruption,
illegal arms manufacture, and human trafficking.25 Further, the last stage of moneylaundering, i.e. integration was undertaken within the legal jurisdiction of URA. The same
was done by buying real estate within the geographical limits of URA by the wealth that has
been allegedly acquired out of proceeds of crime.26 Hence, both under UNCTOC and
generally the offence of money laundering is completed when Mr. Ganzard buys assets in
URA.
A state has jurisdiction under UNCTOC if the offence is committed in the territory of that
state party.27 A state has objective territorial jurisdiction over the offence, if the culmination
of the offence has taken place within the state even if not begun there. It is submitted even if
the offence of money laundering did not begin in URA, its culmination took place in its
territory when Mr. TTK Ganzard brought assets in URA. Therefore, URA has territorial
jurisdiction over the offence of money laundering.
[ii]. URA
HAS JURISDICTION OVER THE OFFENCE OF CORRUPTION, HUMAN TRAFFICKING AND
ILLEGAL MANUFACTURING OF ARMS UNDER THE PRINCIPLE OF UNIVERSAL JURISDICTION
22
T. C. W. Lin, Financial Weapons of War, MINNESOTA LAW REVIEW (100), 1377, 1381 (2016).
24
Moot compromis, Page 14, 11.
25
Moot compromis, Page 15, 12.
26
Moot Proposition Page 15, 12.
27
Art. 15(1)(a), United Nations Convention Against Transnational Organized Crime (Adopted on November 15,
2000).
23
20
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The use of the word shall in Article 5 of both the protocol related to illegal manufacturing of
arms28 and that of trafficking in people29 shows that it is mandatory for state parties to these
protocol to criminalize such conduct by way of legislations and other measures. It is
submitted that URA can establish jurisdiction over the offence of corruption, illegal
manufacturing of arms and trafficking of people under the principle of universal jurisdiction
[a] Further, it can even submitted that URA can exercise this jurisdiction because
international customary law recognizes universal jurisdiction in absentia [b].
[a] URA can establish jurisdiction over the offence of corruption under the principle of
universal jurisdiction.
UNCTOC grants state parties the right to exercise universal jurisdiction over the offences
defined in UNCTOC.30 There is no norm in international law, which is prejudiced by the
exercise of universal jurisdiction. Hence, Mr. TTK Ganzard can be prosecuted for the
offences of corruption within URA.
Assuming but not conceding to the fact that UNCTOC does not provide for universal
jurisdiction within its text, this jurisdiction can still be exercised according to customary
international law.
Universal jurisdiction is applicable to crimes under customary international law the
commission of which is generally accepted as an attack upon the international order.31 In
28
Art. 5, Protocol against the Illicit Manufacturing of and Trafficking in firearms, Their Parts and Components
and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime.
29
Art. 5, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organised Crime.
30
Art. 15(6). United Nations Convention against Transnational Organized Crime (Adopted on November 15,
2000).
31
Arrest Warrant, ICJ Reports 2002 p 3, 81 (Judges Higgins, Kooijmans & Buergenthal).
21
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the Eichmann case32, it was held that the abhorrent crimes in Israel struck at the whole of
mankind and shocked the conscience of nations, are grave offences against the law of nations
itself (delicta juris gentium). The Supreme Court of Israel argued that universal jurisdiction
for crimes against humanity is universal power vested in every state to prosecute for crimes
of this type carried out in the past a power which is based on customary international law.
Furthermore, the Court in the Eichmann case referred to the Lotus paradigm stating that as
long as there existed no rule of international law prohibiting a state from trying a foreign
national for acts committed abroad, it was permissible to do so.33
After this case, right to exercise universal jurisdiction over grave crimes grew to be accepted
to some degree by many states; and that a right could be crystallising under customary
international law through state practice and opinio juris,34 which are the two elements
necessary for the emergence of customary international law.
In modern times, it has been extended to the so-called core crimes of customary
international law, being genocide, crimes against humanity and breaches of the laws of war.
It is submitted that the offences of corruption and trafficking of people committed by Mr.
TTK Ganzard is a crime against humanity under Article 7(1)(k)35 and 7(1)(c)36 of the ICC
Rome Statute respectively. All the elements required to be a crime against humanity are
satisfied as firstly, these offences are an attack [1]. Secondly, these are widespread and
systematic [2]. Thirdly, these are directed against a civilian population [3]. Fourthly, Mr.
TTK Ganzard acted with the knowledge that his act formed part of the attack [4] fifthly, the
A-G Israel v Eichmann, Supreme Court Judgment of 29 May 1962, (1968) 36 International Law Reports 304,
para 12 (e).
33
34
J.M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law: Volume 1 and 2,
(Cambridge University Press 2005); M. C. Bassiouni, International Crimes, Jus Cogens and Obligatio Erga
Omnes(1996) 59 Law & Contemporary Problems 63.
35
Art. 7(1)k- Other inhumane acts of a similar character intentionally causing great suffering or serious injury
to body or mental or physical health.
36
Art. 7(1).c- Enslavement
32
22
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offence of corruption and trafficking are an inhumane act and an act of enslavement
respectively [5]
[1] All offences are an attack
Article 7(2) defines an attack broadly as a course of conduct involving the multiple
commission of acts referred to in paragraph one against any civilian population, pursuant to
or in furtherance of a State or organizational policy to commit such act.37 Active State or
organizational promotion or encouragement of the crime is evidence of a policy, and in
exceptional circumstances, a State or organizations deliberate failure to take action when
such failure is consciously aimed at encouraging an attack satisfies this requirement. 38 As
such, neither military nor armed conflict is necessary, nor does an attack require the infliction
of violence.39 Rather, this element is satisfied so long as the states policy is carried out in
contravention of one of the listed criminal acts in Article 7(1).40 It is submitted that the abuse
of his government power by Mr. TTK Ganzard, even though unauthorized is a state policy
directed against civilian population. Hence, this grand corruption by Mr. TTK Ganzard is an
attack under the definition of Art. 7(1)(k) of the Rome statute.
With regards to trafficking of women and children, Mr. Ganzard his abusing his diplomatic
privileges for such purposes. Hence, this act is not committed in his personal capacity but in
his official capacity of being the Vice President of Andorra.
[2] All offences are widespread and systematic
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 581 (Sept 2, 1998).

Prosecutor v. Gombo, ICC-01/05-01/08-424, 74, (June 15, 2009) (ICC Pre- Trial Chamber II).
39
William Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY ON THE ROME STATUTE, 101
102, 2nd edn., (2010).
40
Id.
37
38
23
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Widespread refers to both the scale and nature of the attack, as well as the number of
victims.41 In contrast, systematic refers to the an organized nature of the acts of violence and
the improbability of their random occurrence.42 It is submitted that corruption committed by
Mr. TTK Ganzard satisfies both this criteria. Corruption can be viewed as widespread due to
its detrimental impact on the lives of the many. Because of this corruption in Andorra, the
people are enduring grinding poverty, illiteracy leading abysmal life-standards.43
Additionally, grand corruption should be viewed as systematic where it entails ongoing abuse
of the budgetary process or outright theft of government funds.44 The fact that the the money
made of the oil resources are going into the pockets of Ganzard family members proves that
an outright theft of government funds is taking place.
With regards to trafficking, it is widespread because is a highly organized and strategic
business that involves the methodical identification, recruitment, manipulation, coercion,
monitoring, and exploitation of trafficked persons to obtain ownership in the form power and
control
[3] All offences are directed against a civilian population
In the case of Prosecutor v. Kayishema and Others,45 it was held that a civilian could be
understood in the context of a war as well as a relative place, when being used for crime
against humanity. In Prosecutor v. Bisengimana,46 it was held that the term population does
not require that the crime should be directed against the entire population, but it must have a
collective nature, ruling out individual or incidental attacks. It is submitted that corruption on
41
Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment, 42728 (June 12, 2002).
Id., 429.
43
44
Sonja B. Starr, Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations,
1304-1305, NORTH WESTERN UNIVERSITY LAW REVIEW, 101(3), (2007).
45
Prosecutor v. Kayishema and Others, Judgement, 127-29, ( May 21, 1999) (International Criminal Tribunal
for Rwanda).
46
Prosecutor v. Bisengimana, 125-26, ( May 21, 1999) (International Criminal Tribunal for Rwanda).
42
24
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such a grand scale as done by Mr. TTK Ganzard forces a large part of the population into
poverty and illiteracy.
With regards to trafficking, the fact that that the illegal arms and ammunitions are trafficked
to different corners of the world prove that these are large scale operations. Therefore, these
operations would require a large working force. Hence, it can be safely assumed that a
significant number of people are trafficked in order to effectively carry out the manufacturing
[4] Mr. TTK Ganzard acted with the knowledge that his act formed part of the attack
Mr. TTK Ganzard ought to have known that stealing from the national treasury will mean
subjecting the civilian population poverty, illiteracy and an abysmal standard of living.
Hence, Mr. TTK Ganzard acted with the knowledge that his act formed part of the attack.
With regards to trafficking, since Mr. Ganzard is the one at whose behest such activity is
being carried out, he has the intent to commit it
[5] The offences of corruption and trafficking are an inhumane act and an act of
enslavement respectively
In Proscutor v Stakic,47 an inhumane act was defined as an act, which causes serious injury to
mental or physical health of a person. Clearly, the fact that the large scale corruption in
Andorra which forces more that 60% of the population to live below the poverty line creates
huge mental agony to the people in Andorra.
It is further submitted that trafficking is an act of enslavement. Enslavement includes
elements of control and ownership; the restriction or control of an individuals autonomy,
freedom of choice or freedom of movement; and, often, the accruing of some gain to the
perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or
47
Proscutor v Stakic, Case No. IT-94-1-T (September 2, 1999) (International Criminal Tribunal of Rwanda).
25
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irrelevant by, for example, by abuse of power.48 Mr. TTK Ganzard abuses his diplomatic
privileges for purposes of trafficking. An individual who is trafficked to work in a illegal
arms manufacturing factory will definitely lack control over his actions. Hence, trafficking is
an act of enslavement.
. In the facts of our case, trafficking of people is taking place in order to commit this crime.
Since this crime is so inextricably linked with a crime against humanity (trafficking), it
should itself be considered a crime against humanity. The offence of manufacturing of illegal
arms and ammunitions manufacturing should be considered crime against humanity because
such weapons are used for perpetration of crimes like genocide, war crimes and crime against
humanity.
[b] URA can exercise this jurisdiction because international customary law recognizes
universal jurisdiction in absentia.
The principle of universal jurisdiction in absentia states that a state party can exercise
universal jurisdiction even if the accused is not present on its territory. The customary law of
universal jurisdiction encompasses in itself the right to exercise this jurisdiction irrespective
of the fact whether the accused is present on its territory or not. This principle would apply
unless there is a customary rule expressly prohibiting universal jurisdiction in absentia. It is
submitted that, firstly the there is no customary rule, which prohibits the use of universal
jurisdiction in absentia [1]. Secondly, assuming but not conceding the fact that the rule of
universal jurisdiction does not encompass in itself its use in absentia, there is customary rule,
which expressly allows for universal jurisdiction in absentia[2].
[1] No customary rule prohibits the use of universal jurisdiction in absentia
48
Prosecutor v. Kunarac, IT-96-23-T, 537, 541-42, (February 22, 2001) (ICTR Trial Chamber).
26
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It is submitted that neither is there any state practice nor any opinio juris, which prohibit the
use of universal jurisdiction in absentia. It is accepted at the very outset that there are various
national legislations, which require the accused to be present on its territory before he can be
prosecuted. But it does not logically follow from this that they these legislations bar the use
of universal jurisdiction in absentia.
Assuming but not conceding the fact that these legislations bar the use of universal
jurisdiction in absentia, it cannot be said that there is any opinio juris to transform this state
practice into a rule of customary law. The fact that states are doing so does not mean that they
are legally obliged to bar universal jurisdiction in absentia. They might be obliged to do it
under national law, but it does not follow from this that they are obliged to do this under
international law as well. There are no conventions or treaties in international law which
expressly bar the use of universal jurisdiction in absentia. Hence, no customary rule prohibits
the use of universal jurisdiction in absentia.49
[2] Universal jurisdiction in absentia is expressly allowed under customary law
It is submitted that universal jurisdiction in absentia is expressly allowed under customary
law firstly, there is state practice in this regard. State practice would mean how a state
behaves with regard to international law that can be ascertained from things like
administrative acts, legislations, decision of court and activites on the international stage, for
example, treaty making.50 It is submitted that there is state practice in favour of universal
jurisdiction in absentia that can be determined through legislations enacted in various states.
In the 1996 Pinochet Case, the Supreme Court of Spain decided that investigational
proceedings by Spain based on Article 23(4) of the Organic Law on the Judicial Power juncto
49
Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
Dissenting opinion of Judge Ad Hoc Van den Wyngaert, 2002, 134 (International Court of Justice).
50
Malcolm N. Shaw, INTERNATIONAL LAW, 82, 6th edn., ( 2008).
27
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Article 6 of the Torture Convention were admissible and legal because this provision does not
exclude the possibility of universal jurisdiction in absentia by Spanish courts against Chilean
General Augusto Pinochet, who was not present on Spanish territory. In New Zealand,
regardless of whether the accused alleged perpetrator of international 'core crimes' is in New
Zealand during the trial, he or she can be prosecuted and sentenced for offences on which
absolute universal jurisdiction is established.51 The Swiss military tribunals can exercise
universal jurisdiction in absentia over crimes committed by civilians or members of foreign
forces against the international law during armed conflicts, while the alleged perpetrator does
not have to be arrested or found on the Swiss territory.52 Likewise, the Belgian Law of 16
June 1993 as amended by the Law of 10 February 1999 'concerning the punishment of grave
breaches of the international humanitarian law' gives the Belgian courts the right to prosecute
in absentia alleged perpetrators of genocide, crimes against humanity and grave breaches of
the Geneva Conventions. In 2002, Germany enacted its Volkerstrafgesetzbuch [Code of
Crimes against International Law], of which Article 1 provides, " this Act shall apply to all
criminal offences against international law designated under this Act, to serious criminal
offences designated therein even when the offence was committed abroad and bears no
relation to Germany."
Secondly, there is opinio juris for universal jurisdiction in absentia. Article 146 of the IV
Geneva Convention of 1949, if interpreted in the right manner does not presuppose the
presence of the offender. It does not require the presence of the suspect on the territory of the
state prosecuting the accused. Even in the case of SS Lotus,53 it was held that universal
jurisdiction is permissible unless there is a prohibition to the contrary. Since there is no rule
51
Section 8(1)(c), iii, International Crimes and International Criminal Court Act, 2000.
Articles 108 and 109, Military Penal Code, Military Court of Cassation; State Prosecutor v. G.G., 5
September 1997.
53
52
28
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contrary to universal jurisdiction in absentia, it would automatically mean that the SS Lotus
case provides for universal jurisdiction in absentia.
29
II.
Team Code: CLEA003
Mr. TTK Ganzard does not enjoy immunity from the jurisdiction of
United Republic of ASIAN.
Diplomatic immunity is a limited principle under Vienna Convention on Diplomatic

Relations, 1961 and Vienna Convention on Consular relations, 1963. It is only provided to
prescribe number of certain individuals eligible for the same.54 In this case it is submitted that
Mr. TTK Ganzard does not have diplomatic immunity and subsequently United Republic of
ASIAN (hereinafter URA) can proceed against him. This is because firstly, Mr. TTK Ganzard
is not a constitutionally prescribed head of the state and hence does not have immunity
applicable to heads of the state [A]; secondly, Mr. TTK Ganzard does not enjoy immunity
from prosecution as the minister of Defence and Security for Republic of Andorra [B]; and
lastly, Mr. TTK Ganzard only enjoys limited immunity as permanent delegate of Republic of
Andorra to UNESCO. This limited immunity does not cover wrongful acts for which he is
being prosecuted in Andorra [C]. Further, even if he enjoys diplomatic immunity, the same
will not be applicable in this case [D]. Additionally, even if Mr. TTK Ganzard enjoys any
immunity, he has voluntarily waved off the same by submitting to the jurisdiction of URA
[E].
[A]. Mr. TTK Ganzard does not enjoy immunity as a head of the state.
Republic of Andorra is a Presidential Democracy.55 Mr. Kian Ganzard, by virtue of being its
president is also the head of the state. Consequently, he also enjoys immunity from
jurisdiction of the foreign state. Hence, he cannot be prosecuted by a foreign state for the
54
55
M. N. Shaw, INTERNATIONAL LAW, 697 (6th edn. Shaw, 2008).

Moot Proposition, Page 13, Para 3.
30
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criminal and civil wrongs done by him.56 While this immunity largely flows out of customary
international law,57 it is explicitly provided under the United Nations Convention on
Jurisdictional Immunities of States and Their Property, 2004.58 However, such immunity is
only limited to a head of the state or a subordinate acting in his place. It is submitted that Mr.
TTK Ganzard was designated as the second-Vice President of the Republic of Andorra in the
year 2007. However, he cannot be considered the head of the state or a subordinate capable of
representing him because of primarily two reasons. Firstly, Republic of Andorra is a
presidential form of government. In a presidential form of government, a head of the state is
the president. In this case that post is held by Mr. Kian Ganzard. Further, immunity to the
head of the state is also extended to an individual acting on behalf of the head of the state for
the time being.59 It is humbly submitted that Mr. TTK Ganzard is neither of the two and
hence cannot claim immunity for the same.
Secondly, a head of the state is determined by the constitution of the state.60 In this case, Mr.
TTK Ganzard is the second-Vice President of Republic of Andorra, which in turn is not a
constitutionally recognised post.61 Thus, Mr. TTK Ganzard is not immune to the jurisdiction
for being head of the state i.e. Republic of Andorra.
[B]. Mr. TTK Ganzard does not have immunity by virtue of being the minister of Defence
and Security for Republic of Andorra.
Foakes, Immunity for International Crimes? Developments in the Law on Prosecuting heads of State in
Foreign Courts, CHATHAM HOUSE BRIEFING PAPER, November 2011 (IL BP 2011/2).
57
(Arrest Warrant Case of 11 April 2000 [Democratic Republic of the Congo v Belgium] para. 52; Available at
http://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-limits-on-prosecution-of-corruption-relatedmoney-laundering-by-foreign-officials/.
58
Article 2(1)(b)(i) and 2(1)(b)(iv), United Nations Convention on Jurisdictional Immunities of States and Their
Property, 2004.
59
Available at http://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-limits-on-prosecution-ofcorruption-related-money-laundering-by-foreign-officials/.
60
See Hyde, ii, SS 408; USA v Wagner (1887) LR 2 Ch App 582.
61
56
31
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Mr. TTK Ganzard is the minister of Defence and Security for Republic of Andorra.62 This
post gives him a special position within the government of Republic of Andorra. However,
this post does not entitle him to special benefits. As per the Customary International Law, all
heads of state and officials of state enjoy immunity with respect to official acts committed
during their tenure.63 While such immunity is absolute for Heads of state and Foreign
Ministers, it is limited for other state officials and ministers.64 It is submitted that in this case
Mr. TTK Ganzard has been accused of and is being prosecuted for corruption, moneylaundering and embezzlement of public funds.65 These acts certainly fall outside the scope of
his office. In his capacity as the minister for defence and security, he would have enjoyed
immunity in acts involving the official scope of his office.66 Financial misappropriation is
certainly not within the scope of his office. Thus Mr. TTK Ganzard does not enjoy immunity
from prosecution for offences mentioned above.
[C]. Mr. TTK Ganzard only enjoys limited immunity as deputy permanent delegate of
Republic of Andorra to UNESCO.
Members representing other states in United Nations are granted total immunity from
jurisdiction of foreign state.67 However, such immunity is largely immunity ratione
materiae,68 Section 11 of the convention says that Representatives of Members to the principal
and subsidiary organs of the United Nations and to conferences convened by the United Nations,
62

Immunities of state officials, international crimes, and foreign domestic courts. European Journal of
International Law Volume 21, No. 4, 2010, pp. 815-852.
64
Ibid., at paras 55, 7071; Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ judgment of 4 June 2008, at para. 170, available at: www.icj-cij.org/docket/files/136
/14550.pdf.
65
Moot Proposition, Page 15, Par 18.
66
French prosecutors throw out Rumsfeld torture case, Reuters, November 23, 2007.
67
Article IV, General Convention on Privileges and Immunity of United Nations, 1946.
68
H. Fox and P. Webb, The Law of State Immunity, 549-560 (3rd edn., 2013).
63
32
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shall, while exercising their functions and during the journey to and from the place of meeting, enjoy
the following privileges and immunities. Further Section 14 explicitly states that Privileges and
immunities are accorded to the representatives of Members not for the personal benefit of the
individuals themselves, but in order to safeguard the independent exercise of their functions in
connection with the United Nations.
A combined reading of the two suggests that immunity accorded to the members of the
representative state are limited. They only extend to their official functions and cannot be used
for the personal benefit of the representative. Such official functions include travel to and from
place of meeting and representation. In this case, financial misappropriations by Mr. TTK
Ganzard are outside the scope of his official function. They are in no manner whatsoever in
furtherance of his function of representing interest of Republic of Andorra at UNESCO. Hence,
he cannot claim immunity under this provision.
[D]. Defence of diplomatic immunity is not applicable to this case.
Presuming but not conceding that Mr. TTK Ganzard enjoys immunity, it is humbly submitted
that the same shall not be applicable in this case. It is submitted that diplomatic immunity,
either immunity ratione personae or immunity ratione materiae, is not applicable if the
crime is covered by Ius Cogens.69 Further, even though immunity may have been granted in
customary law, the same does not hold authority if it has been expressly overruled by an
authority.70 It is acquiesced that Mr. TTK Ganzard faces serious criminal charges, perhaps of
69
The Minister of Justice and Constitutional Development v. The South African Litigation Centre (867/15)
[2016] ZASCA (15 March 2016).
70
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ; Available at
http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=121&p3=4
33
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the nature of Ius Cogens.71 Further Mr. TTK Ganzard also has charges of human trafficking
and manufacture of illegal arms against him.72 These crimes are covered under United
Nations Convention against Territorial Organised Crime, and are Ius Cogens.73 Considering
the same, Mr. TTK Ganzard does not enjoy immunity because of the heinous nature of his
crimes. Additional, both Republic of Andorra and United Republic of ASIAN are a party and
signatory to UNCTOC.74 Consequently, both states expressly overruling any immunity for
crimes of the nature that are committed by Mr. TTK Ganzard. Hence, Mr. TTK Ganzard
cannot claim immunity.
[E]. Mr. TTK Ganzard has waved off his immunity by voluntarily submitting to the
jurisdiction of URA.
Immunity can be waived off if an individual voluntarily submits to the jurisdiction of a

court.75 An individual submits to the jurisdiction of a court either by being plaintiff in a case
or by defending his actions without challenging jurisdiction in the case.76 It is submitted that
Mr. TTK Ganzard had denied charges of wrongdoing after prosecution agency of URA
prepared charges against him.77 Subsequently, by doing so he has submitted to the
jurisdiction of courts of URA and does not enjoy immunity from the same. Thus, by virtue of
submitting to the jurisdiction, Mr .TTK Ganzard has waived of his diplomatic immunity.
71
For human trafficking and illegal arms manufacturing. The charges of money laundering, embezzlement of
public funds and corruption are a direct consequence of the same.
72
Moot Proposition, page 19, Para 31.
73
Article 2, United Nations Conventions against Transnational Organised Crime (Adopted on November 15,
2000).
74
Moot Proposition, Page 17 and 18, Para28.
75
Hullett v The King of Spain (1828).
76
Enrica Lexie Case, 2012.
77
34
III.
Team Code: CLEA003
It is not a diplomatic mission because the act of doing so ignores various

provisions of the Vienna Convention of Diplomatic relations
1. There are various rules and regulations which govern the setting up and the functionality of
the diplomatic mission and its inviolability. There is only one broad procedure relating to the
establishment of a diplomatic mission set out in the Vienna Convention on Diplomatic rights
and therefore it is essential and cannot be violated.78 The setting up of a diplomatic mission
by one country in another countrys land requires an essential element which is consent. The
Vienna Convention of Diplomatic rights has laid down a procedure and certain guiding
principles which elucidate this requirement. It is submitted that the move by the Republic of
Andorra to convert the property of Mr. Gandzard into a diplomatic mission by buying it and
declaring it so is bad in law. This is so because [A] It ignores various provisions of the
Vienna Convention on Diplomatic rights [B] URAs consent does not exist in any scenario.
[A]. It ignores various provisions and the procedure laid down in the Vienna Convention on
Diplomatic rights.
2. The facts establish that the investigative agency of URA in lieu of conducting the
investigation against Mr. Gandzard in lieu of his alleged money laundering seized some
assets of Mr. Gandzard as is the norm in any legal investigation. 79 One of these assets was a
palatial house at Rose Avenue. Before the trial was about to start, Mr. Gandzard sold that
property back to his own government. The Republic of Andorra then declared that property a
78
79
Article 2, Vienna Convention on Diplomatic relations (1961).

Moot Proposition, Page 17, 26.
35
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diplomatic mission of the state of Andorra and claimed absolute immunity from all kinds of
prosecution relating to that property since it was a diplomatic mission now.80
3. It is submitted that this step taken by the Republic of Andorra is not valid in law and the
immunity will not exist as the building is not a diplomatic mission. The establishment of a
diplomatic mission is not an absolute unilateral decision, on the other hand it is a procedural
matter which requires consent based exactly on the logic of sovereignty that Mr. Gandzard
seeks to argue with. The assertion that we seek to put across is that Mr. Gandzard is abusing
the power that he has within the Government of Andorra in order to escape personal liability
for his alleged wrongdoings which are in investigation by making the investigation stop. This
should also be read along with read into the fact that the Republic of Andorras radical
decision to make that property a diplomatic mission came after the property was in
investigation and the trial was about to start.
4. It is submitted that the private property is not a diplomatic mission because it is not in
accordance with various provisions relating to Diplomatic missions in the Vienna
Convention. Article 2 states that the establishment of diplomatic relations between States, and
of permanent diplomatic missions, takes place by mutual consent.81 Article 12 reiterates the
requirement of express consent of the receiving state for the establishment when one needs to
open another branch of a mission.82 Article 4(1) requires that a state needs the consent of the
receiving state before appointing a person as the head of the diplomatic mission.83 Article 11
of the convention requires consent from the receiving state to be established from the
receiving state with regard to the size and the limits of the boundary of the diplomatic
mission.84 All of these provisions if read together establish one common link, that is, of
80
Moot Proposition, Page 16, 25.

82
83
84
81
36
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consent and a procedure in place with regard to the setting up of a diplomatic mission. It is
argued that the principle of mutual consent laid down in Article 2 and reiterated in Articles 4,
11 and 12 make it evident that the setting up of a diplomatic mission is not a unilateral
imposition from the side of the sending state.85The preamble of the convention states that
realizing that the purpose of such privileges and immunities is not to benefit individuals but
to ensure the efficient performance of the functions of diplomatic missions as representing
State.86 The convention stresses on the non-abuse of the privileges granted within it. The
Republic of Andorra did not take express consent with regard to firstly, the setting up of a
diplomatic mission and secondly, about the size or location of the mission from URA. The
property in such circumstances would remain just a property and would not transform into a
diplomatic mission.
[B] URAs consent does not exist in any scenario.
4. It is submitted that the act of declaring the private property as a diplomatic mission was
just a reflex action influenced by Mr. Gandzards high position in the Republic of Andorras
government structure, done primarily with the objective of obtaining immunity and thus
hindering his prosecution by URA. This act violated the aforementioned articles of the
Convention. It is extremely legitimate to argue that URA would never give consent for
converting the property in dispute and diplomatic property as they were the party who were
prosecuting Mr. Gandzard. The communiqus by URA also reflects the intention by URA to
85
An excellent analogy would be a hypothetical example of how a country cannot just set up a diplomatic
mission in front of the white house in America.
86
Preamble, Vienna Convention on Diplomatic relations (1961).
37
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not let that property become a diplomatic property.87 There is clear intention by URA to not
let that property become immune. Additionally, the Republic of Andorra already has a
diplomatic mission based in URA; therefore this move loses even more credibility.88
Summarizing, the move by the Republic of Andorra goes against the literal provisions of law,
the intention of the receiving state and therefore we submit that the property is in fact, not a
diplomatic property. Therefore, the violability of the building is legitimate in law. The
leading case decided by this very court on Diplomatic immunity of a diplomatic mission
which is the Case concerning diplomatic and consular staff in Tehran also reiterates the fact
that the property needs to be a diplomatic mission in order for the said immunity to flow.89
87
Moot Compromis, Page 17, 28.

Query 2, Clarifications to the Moot Compromis.
89
United States v Iran, Judgment, (1980) ICJ Reporter, 17 (International Court of Justice).
88
38
IV.
Team Code: CLEA003
Even if there was violation of diplomatic immunity, Andorra cannot

claim any damages for the same.
Under the Vienna Convention on Diplomatic Relations and as per the principle of customary
law, violation of diplomatic immunity is an offence.90 In fact it is an offence by one sovereign
against another.91 However, there are no provisions under statutes or customarily law that
grant compensation under such circumstances.92 This is because firstly one sovereign state
cannot sue another state for damages [A], and secondly, satisfaction in the form of liability
finding itself is the appropriate form of reparation for the proven violation of diplomatic law
[B].
[A]. One sovereign state cannot sue another sovereign state for damages
In Federal Republic of Germany v. Miltiadis Margellos93 Greek Special Supreme Court held
that state immunity a generally recognized international norm which prohibits actions for
damages in relations to crimes and civil wrongs. The court further stated that there is was not
enough consistent to widespread state practice to demonstrate any exception to the norm of
state immunity. In Ferrari v. Federal Republic of Germanny94 Italian Supreme Court
explicitly rejected the contention that state immunity does not exist in case of violation jus
cogens. It concluded that state immunity with respect to compensation is an absolute
principle. Consequently no damages can be claimed under any circumstances from a
90
S. D. Murphy et al, LITIGATING WAR: MASS CIVIL INJURY AND THE ERITREA-ETHIOPIA CLAIMS COMMISSION,
381 (2013).
91
Id. at 388.
92
Id. at 387.
93
Federal Republic of Germany v. Miltiadis Margellos, Case 6/17-9-2002 (Greece: Special Supreme Court,
2002).
94
Ferrini v. Repubblica Federale di Germania, 87 RDI (2004) 539 (Italy: Cassazione), at paras 7 and 8.2.
39
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sovereign state. Further, in Greek Citizens v. Federal Republic of Germany,95 the German
Supreme Court noted that the principle of state immunity is absolute. It further stated that this
principle cannot be violated under any circumstances.
It is submitted that apex courts of multiple jurisdictions have taken the view that state
immunity is absolute. Further, these courts have also agreed that sovereign immunity also
applies in cases when one sovereign seeks damages from another for its misconduct.
Consequently, by virtue of being followed by multiple courts, this aspect of law has become
customary law.96 Hence, it is submitted that as per this customary law, URA is not liable to
pay any monetary compensation to Republic of Andorra.
[B]. Satisfaction in the form of liability finding itself is the appropriate form of reparation for
the proven violation of diplomatic law
In the Eritrea-Ethiopia claims commission decision, Eritrea claimed monetary compensations

form Ethiopia for violating provisions of diplomatic immunity.97 Ethiopia arrested diplomat
of Eritrea, and subsequently searched and seized their belongings.98 Ethiopia further broke
into, and searched and seized the embassy building of Eritrea.99 It further, seized some of the
diplomatically important communications.100 On the other hand, Ethiopia made more or less
similar contentions. It sought compensation for arrest of its diplomat and violation of his
diplomatic immunity. The commission concluded that satisfaction in the form of its liability
95
Greek Citizens v. Federal Republic of Germany (The Distomo Massacre Case), 42 ILM (2003) 1030
(Germany: Sup. Ct, 2003), at 1033.
96
Article 38, The Statute of the International Court of Justice, 1945.
97
Eritreas Diplomatic Claim, Partial Award, 2007 (para 36).
98
Id.
99
Id. at para 41.
100
Eritreas Diplomatic Claim, Final Award, 2009 (para 114).
40
Team Code: CLEA003
finding was a sufficient repatriation for violation of diplomatic immunity in the two cases.101
The commission also explicitly dismissed monetary compensation claims except in the cases
wherein personal belongings of diplomats were not returned.102
It is submitted that the circumstances of aforesaid case are extraordinarily similar to the
circumstances of current case. Under such situations, URA should also not be liable for
monetary compensation. At best, liability of URA is satisfied by the liability findings of URA
with respect to violation of diplomatic immunity in the two cases.
101
102
Id. at para 4; Ethiopias Port Claim, Final Claim, 2005 (para 6).
Final Award, Ethiopias Damages Claims, 2009 (para 226, Annexure 16).
41
Team Code: CLEA003
CONCLUSION
The Applicant, the United Republic of ASIAN, respectfully asks this court to adjudge and
declare that:
I.
United Nations Convention on Transnational Organized Crime is applicable in the

case and Mr. TTK Ganzard can be subsequently prosecuted in URA,
II.
Mr. TTK Ganzard does not enjoy diplomatic immunity and consequently URA
can prosecuting him under its jurisdiction,
III.
Diplomatic premises of Republic of Andorra was not illegally searched and

seized, and
IV.
United Republic of ASIAN is not liable to compensate Republic of Andorra for

damages arising out of violation of diplomatic immunity.
42

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What are the main arguments being made in the memorial?

What are the main arguments being made in the memorial?

What international conventions are being referred to in the memorial?

What international conventions are being referred to in the memorial?

Memorial for United Republic of ASIAN

Team Code: CLEA003

Memorial for United Republic of ASIAN

Team Code: CLEA003

Convention against Transnational Organized Crime ........................................................... 15

of the Vienna Convention of Diplomatic relations .............................................................. 35

damages for the same. .......................................................................................................... 39

Memorial for United Republic of ASIAN

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United Republic of ASIAN

International Court of Justice

United Nations Childrens Fund

United Nations Educational, Scientific and

Transnational Organised Crime

International Crimina Tribunal for Rawanda

International Law Commission

Permanent Court of International Justice

United Nations Security Council

United Nations General Assembly

Vienna Convention on Diplomatic Relations

Vienna Convention on Consular Relations

Vienna Convention on law of Treaties

Memorial for United Republic of ASIAN

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CONVENTION AND ITS PROTOCOLS, 57, 1st edn., (2007). ...................................................... 16

CLAIMS COMMISSION, 381 (2013). ....................................................................................... 38

Memorial for United Republic of ASIAN

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William Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY

STATUTE, 101102, 2nd edn., (2010). ................................................................................... 23

Memorial for United Republic of ASIAN

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Federal Republic of Germany v. Miltiadis Margellos, Case 6/17-9-2002 (Greece: Special

Memorial for United Republic of ASIAN

Team Code: CLEA003

General Convention on Privileges and Immunity of United Nations, 1946. ........................... 31

Memorial for United Republic of ASIAN

Team Code: CLEA003

Memorial for United Republic of ASIAN

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Memorial for United Republic of ASIAN

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Memorial for United Republic of ASIAN

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Memorial for United Republic of ASIAN

Team Code: CLEA003

Does prosecution of Mr. TTK Ganzard in URA result in violation of provisions of

Is Mr. TTK Ganzard immune from jurisdiction of United Republic of ASIAN?

Is United Republic of ASIAN liable to compensate Republic of Andorra for

Memorial for United Republic of ASIAN

Team Code: CLEA003

Memorial for United Republic of ASIAN

Team Code: CLEA003

Memorial for United Republic of ASIAN

Team Code: CLEA003