Canada-United States Law Journal

Volume 37 | Issue 1 Article 16

2012

Memorial of the Respondent

Paul Allen

Kathleen D. Pitts

Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj

Part of the International Law Commons

Recommended Citation
Paul Allen and Kathleen D. Pitts, Memorial of the Respondent, 37 Can.-U.S. L.J. 67 (2012)
Available at: https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16

This Niagara Moot Court is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law
Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve
University School of Law Scholarly Commons.
 Allen and Pitts: Memorial of the Respondent

2011-2012

NIAGARA INTERNATIONAL MOOT COURT COMPETITION

A DISPUTE ARISING UNDER THE

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

FEBRUARY, 2012

THE GOVERNMENT OF THE UNITED STATES

(Applicant)

V.

THE GOVERNMENT OF CANADA

(Respondent)

MEMORIAL OF THE RESPONDENT

PaulA. Allen & Kathleen D. Pitts

TABLE OF CONTENTS

INDEX OF AUTHORITIES.............................68
JURISDICTIONAL STATEMENT. ........................ 71
QUESTIONS PRESENTED.............................72
STATEMENT OF FACTS..............................72
SUMMARY OF THE ARGUMENT. ....................... 76
ARGUMENT............................. ............... 76

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 1
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

68 CANADA-UNITED STATES LA WJOURNAL [Vol. 37, No. 1]

I. CANADA'S INTERVENTION INTO TANGOON IS LAWFUL UNDER

INTERNATIONAL LAW. ............................ ..... 77

A. Canada's intervention into Tangoon was lawful under the theory of

collective self-defense to assist in the protection of Samutra from Tangoon's
biological assault........................................77
B. Canada's intervention into Tangoon was appropriately authorized by
the United Nations General Assembly in its Resolution on the situation in
Tangoon offered under its "Uniting for Peace" authority. . ............ 80
C. Canada had a responsibility to intervene in Tangoon pursuant to the
principles under the "Responsibility to Protect" doctrine. ........... 81

II. THE APPREHNSION AND DETENTION OF CLYDE BARRETT AND

ISHMAEL BALTHASAR WAS PERMITTED UNDER INTERNATIONAL
LAW, AS IS THEIR SURRENDER TO THE INTERNATIONAL
CRIMINAL COURT. .................................... 83

A. The situation in Tangoon has resulted in extraterritorial effects in the

State of Samutra, which permits the prosecutor of the ICC to conduct an in-
vestigation after a lawful referral ............................... 83
B. Canada acted in accordance with both international and domestic law
when it apprehended and detain Clyde Barrett and Ishmael Balthasar.......85
C. Canada is allowed to choose a judicial forum other than its national
courts to prosecute Clyde Barrett and Ishmael Balthasar, and is also obligated
to cooperate with the International Criminal Court as party to the Court... 87
D. International law prohibits Ishmael Balthasar's claim of head of state
immunity for his crimes against humanity...........................88

CONCLUSION .................................. ...... 90

INDEX OF AUTHORITIES

INTERNATIONAL CONVENTIONS, DECLARATIONS, AND

AGREEMENTS

2005 World Summit Outcome, G.A. Res 60/1, U.N. Doc

A/Res/60/1 (Oct. 24, 2005) ............ ....... 81, 82
22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
INTERNATIONAL MILITARY TRIBUNAL 461 (1948) ...... 88
Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis, and Charter of the International
Military Tribunal, Aug. 8, 1945, 82 U.N.T.S. 280.......89
Charter of the International Military Tribunal for the Far East, Jan.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 2
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 69

19, 1946, T.I.A.S. 1589 ...................... 89

Convention on the Prevention and Punishment of the Crime of
Genocide, G.A. Res. 260 (III) A, art. 2, A/760 (Dec. 9, 1948)
................................... 82, 86, 88,
89
Convention for the Suppression of Unlawful Seizure of Aircraft,
Oct. 14, 1971, 860 U.N.T.S. 105 ................... 85
Geneva Convention Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, 75 U.N.T.S. 135 ......... ........ 86
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949,
75 U.N.T.S. 31.............................86
Geneva Convention for the Amelioration of the Condition of Wound-
ed, Sick and Shipwrecked Members of Armed Forces at Sea, Aug.
12, 1949, 75 U.N.T.S. 85............. ......... 86
Geneva Convention Relative to the Protection of Civilian Persons in
Time of War, Aug. 12, 1949, 75 U.N.T.S. 287............86
Principles of International Cooperation in the Detection, Arrest, Extra-
dition and Punishment of Persons Guilty of War Crimes and
Crimes Against Humanity, G.A. Res. 3074, at 79, U.N. GAOR,
28th Sess., Supp. No. 30, U.N. Doc. A/9326 (Dec. 3, 1973)
.......86
Rome Statute of the International Criminal Court, July 17, 1998,
2187 U.N.T.S 90.......................83, 84, 88
Statute of the International Court of Justice art. 36(1), June 26,
1945, 33 U.N.T.S. 993.......................71
Statute of the International Criminal Tribunal for Rwanda, S.C. Res.
955, U.N. Doc. S/RES/955 (Nov. 8, 1994) ............. 89
Statute of the International Criminal Tribunal for the former Yugosla-
via, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993)
....... 89
The Responsibility to Protect, G.A. Res 63/308, U.N. Doc
A/Res/63308 (Sept. 14, 2009) .................. 81
U.N. Charter.................................77, 79, 80
Uniting for Peace Resolution, G.A. Res 377 (V) A, U.N Doc.
A/1456 (Nov. 3,1950).......................80
Universal Declaration of Human Rights, G.A. res. 217A (III), U.N.
Doc A/810 (1948)..........................83
Vienna Convention on Diplomatic Relations, April 18, 1961, 500
U.N.T.S. 95 .......................... 89
Vienna Convention on the Law of Treaties, May 23, 1969, 1155

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 3
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

70 CANADA-UNITED STATES LA WJOURNAL [Vol. 37, No. 1]

U.N.T.S. 331 .................................... 85

INTERNATIONAL CASES
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002
I.C.J. 3 (Feb. 14).................. ...... 89, 90
Legal Consequences of Construction of Wall In Occupied Palestini-
an Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9)
...................................... 79
Military and Paramilitary Activities in and Against Nicaragua (Nic-
ar. v. U.S.), Merits, Judgment 1986 I.C.J. 14 (June 27)
................................... 78,79
S.S. "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)
.......................................... 84

DOMESTIC LAW
Crimes Against Humanity and War Crimes Act, 2000 S.C., ch. 24
(Can.) ................................... 86

DOMESTIC CASES
United States v. Rezaq, 134 F.3d 1121 (D.C. Cir. 1998)...........85
United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991) .......... 85

BOOKS
JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY
INTERNATIONAL HUMANITARIAN LAW 435 (2005).......87
ROSANNE VAN ALEBEEK, THE IMMUNITY OF STATES AND THEIR
OFFICIALS IN INTERNATIONAL CRIMINAL LAW AND
INTERNATIONAL HUMAN RIGHTS LAW (2008)..........88

JOURNAL ARTICLES
Alicia L. Bannon, Comment, The Responsibility to Protect: The
U.N. World Summit and the Question of Unilateralism, 115
YALE L.J. 1157 (2006)................... ..... 81,82
Eustace Chikere Azubuike, Probing the Scope of SelfDefense in
InternationalLaw, 17 ANN. SURV. INT'L & COMP. L. 129 (2011)
................................
.... 77, 78, 79
Kenneth C. Randall, UniversalJurisdiction Under International
Law, 66 TEX. L. REV. 785 (1988) ............... 85, 86
Michael P. Scharf, Application of Treaty-Based UniversalJurisdic-
tion to Nationals ofNon-Party States, 35 NEW ENG. L. REv. 363
(2001) ................................... 89

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 4
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 71

Michael P. Scharf, The ICC's Jurisdictionover the Nationals of

Non-PartyStates: A Critique of the U.S. Position, LAW &
CONTEMP. PROBS., Winter 2001, at 67...... ...... 85
Zia Modabber, Collective Self-Defense: Nicaraguav. United States,
10 LoY.L.A. INT'L & COMP L REv. 449 (1988) ..... 77

REPORTS
Ad Hoc Committee on the Establishment of an International Crimi-
nal Court, Comments Received Pursuantto Paragraph4 of
GeneralAssembly Resolution 49/53 on Establishmentof an In-
ternational Criminal Court, U.N. Doc. A/AC.244/1/Add.2
(March 31, 1995)...........................88
The Secretary-General, Report of the Secretary-Generalon the Im-
plementing the Responsibility to Protect, delivered to the Gen-
eral Assembly, U.N. Doc A/63/677 (Jan. 12, 2009) ..... 82

OTHER AUTHORITIES
Compromis Between the United States (Applicant) and Canada (Re-
spondent) Concerning Intervention in Tangoon (Aug. 29, 2011)
. . . .. .........
71, 72-76
Corrections and Clarifications to the Compromis Between the Unit-
ed States and Canada Concerning Intervention in Tangoon (Jan.
17, 2012) ................................. 86
Int'l Comm'n on Intervention and State Sovereignty [ICISS], The
Responsibility to Protect XI (2001)................87

JURISDICTIONAL STATEMENT

The United States (Applicant) and Canada (Respondent) jointly submit

this dispute to the International Court of Justice ("ICJ") under the Court's ad
hoc jurisdiction pursuant to Article 36(1) of the ICJ Statute.' All Parties have
complied with the Article 36(1) requirements. Additionally, both Parties
have agreed that Tangoon and Samutra are not essential third parties in this
case.2 The United States and Canada agree to comply with the Court's ruling

1 Statute of the International Court of Justice art. 36(1), June 26, 1945, 33 U.N.T.S. 993.
2 Compromis Between the United States (Applicant) and Canada (Respondent) Concern-
ing Intervention in Tangoon, T 26, (Aug. 29, 2011) [Compromis].

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 5
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

72 CANADA-UNITED STATES LAWJOURNAL [Vol. 37, No. 1]

on this matter and shall fully and immediately implement the issued deci-
3
sion.

QUESTIONS PRESENTED

I. Whether Canada's humanitarian intervention and actions under the "Re-

sponsibility to Protect" doctrine and United Nations approval were permitted
under international law?

II. Whether Canada's apprehension, detention, and proposed surrender to the

International Criminal Court of Ishmael Balthasar and Clyde Barrett, both of
whom are suspected of committing crimes against humanity and genocide,
are permitted under international law?

STATEMENT OF FACTS

History: Tangoon and Samutra

Two independent States, Tangoon and Samutra, currently share the island
of Tanmutra.4 Formerly a French colony, the island gained its independence
in 1990 as the Republic of Samutra.' Only months after the decolonization
of the island, the new Republic of Samutra faced a successful secession
movement by a small group of elitist, ultra-orthodox adherents to the Tamut-
ran religion who formed the State of Tangoon in the western portion of the
island.6 Tangoon and Samutra were admitted as separate State into the United
Nations ("UN") in 1991 and have ratified the Genocide Convention, the In-
ternational Covenant on Economic, Social and Cultural Rights, and the Inter-
nal Covenant on Civil and Political Rights, and the Geneva Conventions and
Additional Protocols. Samutra has also become a party to the Rome Statute
of the International Criminal Court ("ICC").7
Although they share an island, the States of Tangoon and Samutra could
not be more different. Samutra has a democratic, secular government and its
citizens enjoy the benefits of a strong, foreign tourism-based economy.

3 Id.
4 Id. at 12.
' Id. 4.
6 Id.
SId.
8 Id. 6.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 6
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 73

Tangoon, however, is ruled by a small, elite group of the ultra-orthodox ad-

herents to the Tanmutran religion.9 Raffliki Balthasar is currently the Head
of State and Government, although his younger brother, Ishmael Balthasar,
holds de facto military and political power as Minister of Internal Affairs.o
The Tangoon population has been forced into a caste system, has been
banned to possess telephones, radios, and other means of communication to
the rest of the world, and has been restricted to the territory by a border wall
between Tangoon and Samutra." Tangoon's citizens are some of the poorest
in the world and suffer health issues under an oppressive, elitist regime with-
in their State that utilize their religious beliefs to prevent the population's use
of modem medicine and technologies. 12

The Demon Mine

Despite its population's sufferings, Tangoon has very rich cobaltite veins
with the world's largest known deposits located on Tangoon's Mont Demon
and below a large Tangoon village known as Demonville. 3 In 2007, the
Tangoon government gave a U.S. corporation, Geomin Corp., an exclusive
license to mine the Mont Demon area and export the findings to the United
States in return for a fee paid to the Tangoon government.14 The CEO of Ge-
omin Corp. is U.S. citizen Clyde Barrett.' 5 Tangoon agreed to help supply the
mining labor from its "National Service Program."' 6
In early 2011, Geomin Corp. offered to purchase the land in Demonville
in order to set up a mining site, but the Demonville villagers declined the
offer.' 7 Barrett and Geomin Corp proceeded to set up a meeting with Ishmael
Balthasar a few months later to discuss a mine site in Demonville.' 8 Barrett
told Balthasar that a mine in Demonville would increase Tangoon's profits
from the licensing arrangement and aggressively urged Balthasar to force the
residents out of Demonville, stating "burn them out if you have to."" Bal-
thasar agreed that he would work to find a way to remove the villagers from
the area. 2 0 On May 23, 2011, almost a month after their first meeting, Bal-

' Id. 7.
1O Id.
' Id. 4.
12 Id. 7.
" Id. ff 8-9.
14 id.
'5 Id. 18.
16 id.

'7 Id. 9.
18 Id. 10.
'0 Id
20 id.

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 7
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

74 CANADA-UNITED STATES LA WJOURNAL [Vol. 37, No. 1]

thasar and Barrett met again, with Barrett bringing weather reports about an
approaching cyclone that could be the answer to their Demonville prob-
lems.2 1 All of the conversations between Barrett and Balthasar were recorded
in Balthasar's diary, which is now in the possession of the Office of the Pros-
ecutor of the ICC. 2 2

The May 25 Cyclone

Severe Tropical Cyclone "Kodo" hit the island on May 25, 2011.23 While
Samutra had taken the proper precautions to warn its citizens in advance, the
Tangoon government only issued warnings to its ruling members and did
nothing to alert Tangoon's citizens to the disastrous cyclone. 24 The cyclone
effectively demolished entire villages, including Demonville. 25 It killed thou-
sands of Tangoon citizens, leaving corpses in rivers and lowlands throughout
the State, according to a report filed by the Secretary-General of the UN on
May 30, 2011.26 Tangoon refused humanitarian aid offers, took no action to
clean up and dispose of diseased corpses, and continued to force its citizens
into slave-like working conditions in its "National Service Program" for the
new mine Geomin Corp. blasted in Demonville after the cyclone.27
Tangoon's lack of action to clean up its State resulted in the spread of disease
throughout Tangoon and downstream into Samutra.2 8 Despite warnings from
the UN Secretary-General on the continuing spread of disease and potential
deaths of thousands of citizens in Tangoon and Samutra, Tangoon continual-
ly refused to act.29

The Humanitarian Intervention

On the same day as the UN Secretary-General issued his report, Samutra

referred the case to the ICC and requested that the ICC take action against
Tangoon's Ishmael Balthasar. 3 0 The following day the Samutran government
asked for an emergency session of the UN Security Council; the Council met
but took no action due to a veto threat from the United States on a resolution

21 id
22 id
23 Id I.
24 id.
25 Id. 12.
26 id
27 id
28 id
29 id
30 Id. 13.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 8
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 75

to address the crisis. 3 1 The Security Council took no other actions. 32 A

emergency session of the General Assembly met on June 2, 2011, and under
its "Uniting for Peace" powers, the General Assembly issued a nearly unan-
imous resolution dictating that all necessary means be taken to help deliver
humanitarian aid to Tangoon.33
On June 3, 2011, Canada, per a request from Samutra, sent its HMCS Al-
gonquin, a destroyer with 200 crewmembers and commandos, to the island to
help deliver humanitarian aid. 34 The destroyer arrived in Samutra and togeth-
er with Samutra aid workers, Canadian commandos destroyed portions of the
wall separating the two States and entered Tangoon with aid truck and relief
workers to help distribute food, clothing, medicine and temporary housing to
Tangoon citizens. 35 Samutran aid workers also began the process of burning
and disposing of the diseased corpses.36 Tangoon's security personnel began
to intervene when the humanitarian operation moved its way towards
Demonville; led by Balthasar himself, Tangoon security personnel opened
fire on the Canadian commandos. Canada responded by returning fire, kill-
ing ten and taking seven Tangoon security personnel into custody." Bal-
thasar was also taken into custody and searched, resulting in the Canadian
commandos locating the diary on his person, which had the details of the
plan he and Barrett hatched to refuse aid to the Demonville victims in order
for Geomin Corp. to begin its mining operations. 39
During this operation the Canadian commandos discovered the slave-like
working conditions forced upon Tangoon's teenagers working on the mine.40
The commandos subsequently shut down operations and were approached by
Barrett who protested the commandos' actions, stating they had no right to
interfere with the mining in Demonville.41 The commandos took Barrett into
custody and transported him and Balthasar back to Samutra. 4 2
Canada filed a report with the Security Council on June 8, 2011, outlining
their operations and the actions they had taken in Tangoon.4 3 They turned
over Balthasar's diary to the ICC Prosecutor and the Prosecutor, based on the
diary evidence, issued arrest warrants for Barrett and Balthasar for crimes

31 Id. 14.
32 Id
3 Id. 115.
34 Id. 116.
1 Id 17.
36 id
31 Id. 118.
38 id.
39 id
40 Id. 119.
41 id
42 id
43 Id. T 20.

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 9
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

76 CANADA-UNITED STATES LAW JOURNAL [Vol. 3 7, No. 1]

against humanity." The United States expressed its issues with Canada's
operations in Tangoon in a Diplomatic Note sent June 15, 2011, arguing that
Canada had violated Tangoon's territorial sovereignty and had violated inter-
national law in its apprehension of Balthasar and Barrett from Tangoon.4 5
Canada responded with its own Diplomatic Note on June 22, 2011, defending
its actions and stating it had not violated international law on either issue.46
When dispute resolution negotiations failed between the two nations, they
agreed to submit to ICJ's jurisdiction to handle the matter.

SUMMARY OF THE ARGUMENT

Canada's intervention into Tangoon was necessary in order to provide

humanitarian aid to Tangoon's devastated population and was lawful under
international law. Canada's intervention was in response to Samutra's re-
quest for assistance to help protect Samutra from the biological assault it was
suffering from Tangoon. The intervention was necessary and proportional to
the attacks Samutra faced by Tangoon, meeting the requirements of collec-
tive self-defense. In addition, Canada's intervention was authorized by the
UN General Assembly under its "Uniting for Peace" authority, granting Can-
ada the ability to employ the means necessary to deliver humanitarian aid to
Tangoon. Canada also has a responsibility to protect Tangoon's citizens from
the atrocities currently faced pursuant to the "Responsibility to Protect" doc-
trine. The Court should uphold Canada's lawful intervention into Tangoon.
Furthermore, the apprehension and detention of Clyde Barrett and Ish-
mael Balthasar by Canada was lawful, as is their surrender to the ICC. Due
to the gravity and proximity, the crimes against humanity and genocide that
have taken place in Tangoon created a nexus with Samutra. Samutra, being a
party to the ICC, possessed the lawful right of referral for acts constituting a
violation of the Rome Statute. Canada, under full compliance with both in-
ternational and domestic law, apprehended and detained Barrett and Bal-
thasar while conducting an intervention on the island. Canada is now permit-
ted to delegate the prosecution of Barrett and Balthasar to the ICC, and is
also required to cooperate as a party to the Court. Lastly, Ishmael Bal-
thasar's claim of head of state immunity should be denied. Head of state
immunity has traditionally not acted as a barrier to individual criminal re-
sponsibility for crimes against humanity and genocide. The Court should

4 Id.T21.
45 Id. T 23.
46 Id. T
24.
47 Id. 126.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 10
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 77

uphold Canada's apprehension and detention of Barrett and Balthasar, and

further permit their surrender to the ICC for prosecution.

ARGUMENT

I. CANADA'S INTERVENTION INTO TANGOON IS LAWFUL

UNDER INTERNATIONAL LAW.

Both customary international law principles and UN authorization justi-

fies Canada's intervention into Tangoon to provide humanitarian assistance
to Tangoon's citizens and to aid in the protection of Samutra. In addition,
Canada accepted its responsibility to protect Tangoon's population in the
absence of protections taken by Tangoon's national authorities and after
peaceful attempts to provide aid had been rejected. The actions taken by
Canada in Tangoon were in accordance with what is required under the in-
ternational laws under which Canada was operating. Therefore, Canada's
intervention into Tangoon should be upheld as lawful under international
law.

A. Canada'sintervention into Tangoon was lawful under the theory of

collective self-defense to assist in the protection of Samutrafrom Tangoon's
biologicalassault.

A state, under both customary international law and expressly under the
Charter of the United Nations ("UN Charter"), is traditionally prohibited
from using force or a threat of force that impedes on the territorial integrity
or political independence of another state. 4 8 However, customary interna-
tional law recognizes that the inherent right of collective self-defense, in ad-
dition to being a right granted to states under Article 51 of the UN Charter, is
an exception to the use of force or threat of force prohibition. 4 9 The Court, in
its decision in Nicaragua v. United States, has also addressed the right of
collective self-defense under customary international law and the conditions
that have to be met by an intervening state in order for the prohibition on the
use of force or threat of force to be lifted and considered permissible. The
Court should resolve the issues in this case by applying the collective self-
defense principles outlined by the Court in the Nicaraguacase, reinforced by
customary international law.

48 U.N. Charter art. 2, para. 4; Zia Modabber, Collective Self-Defense: Nicaraguav. United
States, 10 Loy. L.A. INT'L & COMP L REv. 449, 459 (1988).
49 Eustace Chikere Azubuike, Probingthe Scope ofSelfDefense in InternationalLaw, 17
ANN. SURV. INT'L & COMP. L. 129, 174 (2011); U.N. Charter art. 51.

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 11
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

78 CANADA-UNITED STATES LA WJOURNAL [Vol. 37, No. 1]

In its discussion of collective self-defense, the Court lays out three condi-
tions established under customary international law that have to be met in
order for a state to successfully make the case that its intervention was lawful
under this theory.50 The first condition the Court places on the use of this
theory is that the victim state-in this case, Samutra-must suffer an armed
attack from another state.5 1 The Court goes on to provide a somewhat nar-
row definition of what constitutes an armed attack, but scholars have recently
argued that customary international law has evolved to allow the victim state
the ability to make its own determination as to what constitutes an armed
attack. 52 This newer theory also complements the Court's second condition,
which is that the victim state must formulate and declare that it itself is under
attack.53
It is clear in this case that Samutra suffered an armed attack from
Tangoon in the form of a biological assault. The government of Tangoon
refused to take steps to prevent the spread of disease into Samutra caused by
diseased corpses and disastrous conditions located within its territory.
Tangoon indicated in its communiqu6 from its Interior Minister that Tangoon
had the intent to cause the deaths of Samutran citizens. This kind of attack is
one that can be considered a significant attack and not merely an attack fall-
ing within the same category as that of assistance or logistical support by a
state as contemplated by the Court in the Nicaragua case. Additionally,
Canada stated that Samutra reasonably considered that it was under attack
from Tangoon, meaning that Samutra had both formed this view and de-
clared that it had been attacked. These actions indicate that Canada has met
the first two conditions of collective self-defense outlined by the Court.
The third condition placed on the use of collective self-defense by cus-
tomary international law is that there must be a request for assistance from
the victim state to the third-party intervening state.54 The Court stated that the
request from the victim state must be directly expressed and both the request
and the armed attack must precede the intervention by the third-party state.ss
Canada received an express request from Samutra for assistance to aid in its
self-defense from the assault it faced from Tangoon. Both the request and the
armed attack occurred prior to the intervention into Tangoon. The third con-
dition for an express request from Samutra was also met in this case.

50 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986
I.C.J. 14, 102-103 (June 27).
s' Id. at 103-104.
52 Azubuike, supra note 49, at 157.
5 Military and ParamilitaryActivities, 1986 I.C.J. at 103-104.
54 Id. at 105.
5s Id.; Azubuike, supra note 49, at 180.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 12
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 79

Although not dictated by customary international law, the Court in the

Nicaraguacase also indicated that a third-party intervening state using Arti-
cle 51 of the UN Charter's theory of collective self-defense to justify inter-
vention should comply with all of the requirements under that Article. 6 The
Court notes that if actions of a state are being justified pursuant to UN Char-
ter provisions, then that state is obligated to the meet requirements outlined
in the UN Charter articles on which that state relies. Article 51 requires
that a state utilizing the right to collective self-defense must immediately
report any measures taken to the UN Security Council ("Security Coun-
cil").5 8 Canada also meets this condition in this case; Canada submitted a
report to the Security Council the day following its intervention into
Tangoon. Canada has indicated that it is invoking the right of collective self-
defense pursuant to Article 51 in the UN Charter, and the submission of its
report provides further indication to the Court that it was operating under this
theory to justify its intervention.
The conditions placed on the right of collective self-defense by the Court
in the Nicaraguacase are all successfully met by Canada in this instance. In
addition to these conditions, there are two more limitations that customary
international law has placed on both individual state self-defense and collec-
tive self-defense: proportionality and necessity. 59 This means that Canada's
actions in this case must have been both proportional and necessary in order
to be upheld as lawful, in addition to meeting the conditions established spe-
cifically for collective self-defense. The Court has stated that necessity re-
quires that an attack has already occurred or is occurring and the only way
for the victim state to protect its interests against the attack is to challenge the
attack.6 0 The necessity often results from the need to protect the victim state
with actions that are the only means available to protect the state from the
attack. Canada's actions to protect Samutra were necessary in this case; the
only feasible option was to intervene in Tangoon in this manner to ensure
that the deadly spread of disease was stopped. Any delay would have caused
more casualties in Samutra and all other diplomatic means of preventing
these attacks had been rebuffed by Tangoon's government.
Canada's actions were also proportional to the attacks Samutra was facing
from Tangoon. Proportionality requires that the response to the attack be

56 Military and ParamilitaryActivities, 1986 I.C.J. at 105.

57 Id.
58 U.N. Charter art. 51.
5 Azubuike, supra note 49, at 162-163; Military and ParamilitaryActivities, 1986 1.C.J. at
104.
6o Azubuike, supra note 49, at 162-163; Legal Consequences of Construction of Wall In
Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 194-195 (July 9).
61 Azubuike, supra note 49, at
146,162.

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 13
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

80 CANADA-UNITED STATES LA WJOURNAL [Vol. 37, No. I]

limited in scope so as to avoid unnecessary or excessive action. 62 The re-

sponse is not limited, however, to the use of the same tactics or degree of
force used by the attacking state.6 3 Canada's actions were proportional as
they were limited and were by no means excessive or unwarranted. Canada
deployed a small force to cross into Tangoon with the intent to restrict its
actions to the prevention of the spread of disease and to aid relief workers in
their efforts. It was only after Tangoon's armed forces opened fired on Cana-
da's troops did Canada employ deadly force and use an armed attacks to re-
spond. The initial response by Canada, however, to the armed attack on
Samutra was proportional in addition to being necessary. Canada, therefore,
meets the elements required to assert that its intervention into Tangoon was
lawful under the theory of collective self-defense.

B. Canada'sintervention into Tangoon was appropriatelyauthorizedby

the United Nations GeneralAssembly in its Resolution on the situation in
Tangoon offered under its "Unitingfor Peace" authority.

One of the primary principles of the UN is to maintain international peace

and security. 4 The UN Charter delegates to the Security Council the primary
responsibility of upholding this maintenance. However, a failure to act by the
Security Council on an issue that creates a breach of international peace and
security does not relieve the other bodies of the UN, particularly the UN
General Assembly ("General Assembly"), from its duties to remedy that
breach.65 Under its Uniting for Peace authority outlined in Resolution
377(V), the General Assembly can recommend actions be taken by states,
including the use of force, to remedy breaches or threats to international
peace and security.66 Tangoon's actions in this case created a breach of inter-
national peace and security to its citizens, the citizens and territory of Samu-
tra, and citizens of other nations residing on the island. The Security Council
refused to act in this case, therefore giving the General Assembly the respon-
sibility to handle the situation.
The General Assembly passed Resolution A/RES/65/299 on June 2, 2011,
during an emergency session twenty-four hours after a request was made in
accordance with the Uniting for Peace procedures. 7 Resolution
A/RES/65/299 authorized Member States, in coordination with Samutra, to
use all means necessary to provide humanitarian aid and to help bring an end

62 Id. at 145.
61 Id. at 163.
6 U.N. Charter art. 1.
65 Uniting for Peace Resolution, G.A. Res 377 (V) A, 1 8, A/1456
(Nov. 3, 1950).
SId. A(l).
67 Id.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 14
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 81

to the disaster that had occurred in Tangoon. The actions taken by Canada in
its intervention in Tangoon follow the authorization granted by this Resolu-
tion passed almost unanimously by the General Assembly Member States.
Canada acted with Samutra and took necessary steps to ensure humanitarian
aid was delivered, utilizing appropriate actions to help control the crisis sit-
uation in Tangoon. Additionally, Canada's actions did not venture beyond
the scope of this Resolution. Therefore Canada's intervention Tangoon is
also lawful pursuant to the General Assembly's authority under its Uniting
for Peace powers.

C. Canadahad a responsibility to intervene in Tangoon pursuantto the

principles under the "Responsibilityto Protect" doctrine.

States have the primary responsibility to protect their territories and those
populations living within their territories.6 8 These responsibilities are inher-
ent under the theory of individual state sovereignty and include protecting
citizens and residents of the state from suffering serious harm from crime,
internal conflict, or other issues that arise within the state. 6 9 However, when
a state is unwilling or unable to sufficiently protect its populations, or it can-
not or will not alleviate the suffering of its populations, the international
community has a responsibility to intervene to protect those affected within
that state. 7 0 This "Responsibility to Protect" doctrine was adopted in the
2005 World Summit by the General Assembly and has been reaffirmed by
subsequent resolutions in both the General Assembly and by the Security
Council.7 While it has yet to be considered part of customary international
law, this doctrine is trending within the international community as a new
norm, focusing on the principle that state sovereignty does not insulate a state
from humanitarian intervention for human protection purposes.72
The 2005 World Summit Report paragraphs 138 and 139 outline the Gen-
eral Assembly's understanding of the Responsibility to Protect doctrine orig-
inally put forward by a report from the International Commission on Inter-
vention and State Sovereignty (ICISS). It states that the international com-

68 Int'l Comm'n on Intervention and State Sovereignty [ICISS], The Responsibility to

ProtectXI (2001); 2005 World Summit Outcome, G.A. Res 60/1, 138, U.N. Doc A/Res/60/1
(Oct. 24, 2005).
69 ICISS, supra note 68, at XI.
70 ICISS, supra note 68, at Xl; 2005 World Summit Outcome, G.A. Res 60/1, T 139,
U.N.
Doc A/Res/60/1 (Oct. 24,2005).
7i 2005 World Summit Outcome, G.A. Res 60/1, 139, U.N. Doc A/Res/60/1 (Oct. 24,
2005); See generally The Responsibility to Protect, G.A. Res 63/308, 1-2, U.N. Doc
A/Res/63308 (Sept. 14, 2009).
72 Alicia L. Bannon, Comment, The Responsibility to Protect: The U.N. World Summit and
the Question of Unilateralism, 115 YALE L.J. 1157, 1158 (2006).

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 15
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

82 CANADA-UNITED STATES LA WJOURNAL [Vol. 37, No. 1]

munity has a responsibility to intervene within a state to protect its popula-

tions when at least one of four human rights violations is taking place: geno-
cide, war crimes, ethnic cleansing, and crimes against humanity.73 Attempts
at intervention by the international community-working through the UN-
should be appropriate and peaceful, however, if peaceful means are inade-
quate and national authorities fail to adequately protect their populations
from these crimes, the international community may then take collective ac-
tion and intervene accordingly.7 4 . These collective measures can be author-
ized by the Security Council under its authorities, or can be authorized by the
General Assembly under its Uniting for Peace procedures if the Security
Council fails or refuses to act.75
The situation in Tangoon creates a responsibility for the international
community to intervene under this doctrine. Under the "Responsibility to
Protect" doctrine adopted by the UN, Canada acted appropriately and pursu-
ant to the procedures outlined by the 2005 World Summit Report and imple-
menting resolutions. First, it has to be established that Tangoon has commit-
ted at least one of the four listed human rights violations. It is clear in this
case that the actions taken by the Tangoon authorities constitute genocide;
Tangoon's actions meet the definition of genocide laid out in the Convention
on the Prevention and Punishment of the Crime of Genocide ("Genocide
Convention"), to which Tangoon is a party. 76 Tangoon deliberately inflicted
on its non-elite populations within its State conditions of life that were in-
tended to destroy that population by its refusal to warn and protect those
populations from natural disasters, supporting State-sanctioned, slave-like
working conditions, and refusing to provide aid to those communities who
were left without basic life necessities after the cyclone, leaving those popu-
lations severely malnourished. In addition, Tangoon has intentionally caused
seriously bodily injury and death to members of its non-elite class of citizens
by refusing to aid in the prevention of the spread of deadly disease amongst
the non-elite populations. Not only does Tangoon's actions show its intent to
commit genocide but also establishes that its national authorities are "mani-
festly failing" to protect its populations.7 7
Furthermore, Canada's actions were in accordance with the preferences
outlined by the UN for how the "Responsibility to Protect" doctrine should
be carried out. Scholars interpreting the "Responsibility to Protect" doctrine

7 2005 World Summit Outcome, supra note 71, 139.

74 id.
75 The Secretary-General, Report ofthe Secretary-Generalon the Implementing the Re-
sponsibility to Protect, T 63, delivered to the GeneralAssembly, U.N. Doc A/63/677 (Jan. 12,
2009).
76 Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260
(III) A, art. 2, A/760 (Dec. 9, 1948) [hereinafter Genocide Cony.].
n 2005 World Summit Outcome, supra note 71, 139.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 16
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 83

understand that the doctrine prefers states act through the UN and should
attempt peaceful means before resulting to any kind of military actions.
Both preferences were met in this case; Canada intervened in Tangoon pur-
suant to the General Assembly's resolution authorizing action through its
Uniting for Peace procedures, which is a means considered permissible under
this doctrine. 79 Peaceful means were attempted and proved inadequate when
Tangoon rebuffed offers of aid to its citizens from the UN, Canada, Samutra,
and various NGOs; Tangoon reiterated its intent to allow the spread of death
and disease within its borders and to Samutra, thereby necessitating military
intervention. Canada's military intervention was limited to providing human-
itarian aid and only resulted in violence after first facing violence from
Tangoon's armed forces. Therefore, Canada's actions are also lawful under
international law pursuant to the "Responsibility to Protect" doctrine.

II.THE APPREHENSION AND DETENTION OF CLYDE BARRETT

AND ISHMAEL BALTHASAR WAS PERMITTED UNDER
INTERNATIONAL LAW, AS IS THEIR SURRENDER TO THE
INTERNATIONAL CRIMINAL COURT.

Contemporary international law gives the ICC authority to adjudicate this

case. The legality of this case should be considered with respect to four
points: first, the ICC's preconditions to the exercise of jurisdiction over non-
party states; second, the apprehension and detention of Clyde Barrett and
Ishmael Balthasar; third, the surrender of Barrett and Balthasar to the ICC;
and lastly, the claim of head of state immunity by Balthasar. The situation in
Tangoon resulted in extraterritorial effects that justified Samutra's referral
and the ICC's subsequent exercise of jurisdiction. Canada, bound by the
principles of international law and its obligations under the Rome Statute, is
required to surrender Clyde Barrett and Ishmael Balthasar to the ICC. Last-
ly, Balthasar's claim of head of state immunity is not applicable by both fac-
tual circumstances and contemporary international law.

A. The situation in Tangoon has resultedin extraterritorialeffects in the

State of Samutra,which permits the prosecutorof the ICC to conduct an in-
vestigation after a lawful referral.

The preamble to the Rome Statute for the ICC states that " . . . grave
crimes threaten the peace, security and well-being of the world . .

78 Bannon, supranote 72, at 1164.

79 Report of the Secretary-General,supra note 75, 63.
80 Rome Statute of the International Criminal Court pmbl., July 17, 1998,
2187 U.N.T.S.
90 [hereinafter Rome Statute].

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 17
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

84 CANADA-UNITED STATES LA WJOURNAL [Vol. 37, No. I1]

When the UN General Assembly adopted the Universal Declaration of Hu-

man Rights in 1948, the world recognized that certain standards exist for the
treatment of individuals, including condemnations regarding slavery and
inhuman treatment.81 The situation that has arisen on the island of Tanmutra
concerns the very principles of the ICC and the UN. This situation, as indi-
cated by the record, is a result of the actions of Clyde Barrett and Ishmael
Balthasar, and their adjudication is necessary for justice.
The ICC is mandated by the Rome Statute, depending on how the matter
reaches to court, to only consider cases for prosecution if certain criteria are
met. Article 13 of the Rome Statute allows the court to exercise jurisdiction
in a matter when at least one of three events occur: a referral by a party to the
court, a referral by the UN Security Council, or upon an investigation under
the ICC Prosecutor. 82 In the present case, the State of Samutra, a full party to
the ICC, issued a referral to the Court pursuant to Article 13(a). 83
Before proceeding to assert jurisdiction, however, the Rome Statute also
requires that a precondition to the exercise of jurisdiction be satisfied. 84 Ar-
ticle 12 allows the ICC to assert jurisdiction in cases of state referral or pros-
ecutorial investigation only when, regardless of the legitimacy of the referral
or investigation, one of the following criteria is met: the crime has occurred
on the territory of a party to the Court, the accused is a national to a party to
the court, or the relevant non-party state has expressly declared its ac-
ceptance of the Court's jurisdiction in the matter.8 ' The preeminent issue
concerns whether ICC is permitted to accept jurisdiction when neither Clyde
Barrett nor Ishmael Balthasar are nationals of a party to the court, and the
criminal conduct purportedly occurred solely within the state of Tangoon.
Although the overt acts of Barrett and Balthasar are isolated within the
borders of Tangoon, the effects of their acts are not isolated. The record in-
dicates that the entire island's water supply has been severely contaminated
by several diseases, including cholera, typhoid, and dysentery. This contam-
ination is the result of Barrett and Balthasar's conduct within the state of
Tangoon, which has had extraterritorial effects on Samutra. In the S.S. Lotus
case before this Court's predecessor, the issue of collateral effects was con-
sidered when Lt. Demons' negligence solely on board the Lotus was found to
have had an effect on the Boz-Kourt.8 6 If the same understanding is applied
to the present case, the collateral effect on Samutra satisfies Article 12(2) of

8 Universal Declaration of Human Rights arts. 4-5, G.A. res. 217A (I), U.N. Doc A/810
at 71 (1948).
82 Rome Statute, supra note
80, art. 13.
83 Id. arts. 13(a), 14.
8 Id. art. 12.
85 Id.
86 S.S. "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 30 (Sept.
7).

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 18
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 85

the Rome statute. Furthermore, the Rome Statute's preconditions should not
be interpreted as a blanket prohibition on prosecution, but rather, a mere
conditional restriction on the assertion of basic criminal jurisdiction. There-
fore, upon a lawful referral by Samutra, and upon satisfying Article 12, the
ICC is empowered to accept jurisdiction in this matter, and subsequently
investigate and prosecute all relevant crimes under its statutory grant of au-
thority.
The United States contends that the ICC has no right to assert jurisdiction
due to the nationality of the offenders, and suggests that a treaty creation,
such as the ICC, cannot obligate non-party third states according the Vienna
Convention on the Law of Treaties.87 However, the United States is incorrect
with regard to two issues. First, it is a misinterpretation of Article 34 to con-
clude that the ICC's assertion of jurisdiction implies an obligation on a non-
party; on the contrary, the United States is under no affirmative duty to assist
the ICC with the prosecution of these individuals and is merely a third party
bystander. Second, a number of treaty regimes have been applied to the na-
tionals of non-party states. For example, the Convention for the Suppression
of Unlawful Seizure of Aircraft ("Hijacking Convention") has been used by
the United States on multiple occasions to try nationals of states not a party
to the convention for crimes committed wholly abroad.

B. Canadaacted in accordance with both internationaland domestic law

when it apprehendedand detained Clyde Barrettand Ishmael Balthasar.

When Canada apprehended and detained Clyde Barrett and Ishmael Bal-
thasar, it was acting under its lawful assertion of universal jurisdiction and in
accordance with the law of armed conflict. The basis for jurisdiction by a
state arises out of a necessity to affect its legal interests. 89 When a state at-
tempts to assert its interests and authority beyond its own borders, however,
it must rely on one or more principles of jurisdiction, including territoriality,
nationality, passive personality, or the protective principle. 90 An additional
basis for the assertion of jurisdiction is the previously mentioned universality
principle, which allows any state to assert jurisdiction over crimes of serious
international concern. 9 The more traditional bases of jurisdiction require
some link with the prosecuting state; however, the universality principle rests

87 Vienna Convention on the Law of Treaties art. 34, May 23, 1969, 1155 U.N.T.S. 331.
88 Convention for the Suppression of Unlawful Seizure of Aircraft, Oct. 14, 1971, 860
U.N.T.S. 105; See generally United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991); See
generally United States v. Rezaq, 134 F.3d 1121 (D.C. Cir. 1998).
89 See Kenneth C. Randall, Universal JurisdictionUnder International
Law, 66 TEx. L.
REv. 785, 786 (1988).
9 Id. at 787-88.
9' Id. at 788.

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 19
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

86 CANADA-UNITED STATES LAWJOURNAL [Vol. 37, No. 1]

on the belief that every state has an interest in adjudicating serious violations
of international law,92 including crimes against humanity.
Some debate exists whether crimes against humanity fit into the category
of crimes meant to be prosecuted using universal jurisdiction, such as piracy.
However, the Geneva Conventions and their 1977 Additional Protocols, to
which Canada and Tangoon are parties,93 contains language indicating that
crimes against humanity are meant to be covered by universal jurisdiction.
The Conventions identify grave breaches, including inhumane treatment, and
uses definitions that reflect those used at the Nuremberg proceedings against
the Nazi regime. 94
The Conventions also hold that state parties are". . . under the obligation
to search for persons alleged to have committed, or to have ordered to be
committed, such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts."9 5 Furthermore, a number of treaty
regimes to which Canada and Tangoon are parties, including the Geneva
Conventions, provides not only for universal jurisdiction, but also obligates
states to assist in the prevention and punishment of certain international
crimes. Canada and Tangoon are parties to both the Genocide Convention
and the UN, both of which express affirmative duties to prevent crimes
against humanity. 9 6 For example, UN General Assembly Resolution 3074
states that parties " . . . shall assist each other in detecting, arresting and
bringing to trial persons . . ." who are suspected of crimes against humanity,
and that these crimes wherever" . . . committed, shall be subject to investiga-
tion."9 7
Furthermore, Canada's own laws recognize the assertion of universal ju-
risdiction for crimes again humanity. Canada's Crimes against Humanity
and War Crimes Act makes it clear that it considers crimes against humanity
to be part of customary international law, and that it was explicitly criminal

Michael P. Scharf, The ICC'sJurisdictionover the NationalsofNon-Party States: A

92

Critiqueof the U.S. Position,LAW & CONTEMP. PROBS., Winter 2001, at 67, 76.
9 Corrections and Clarifications to the Compromis Between the United States and Canada
Concerning Intervention in Tangoon, correction 1 (Jan. 17, 2012).
94 Randall, supra note 89, at 816-17.
9 First Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field art. 49, 75 U.N.T.S. 31; Second Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea art. 50, 75 U.N.T.S. 85; Third Geneva Convention Relative to the Treatment of Prison-
ers of War art. 129, Aug. 12, 1949, 75 U.N.T.S. 135; Fourth Geneva Convention relative to
the Protection of Civilian Persons in Time of War art. 146, 75 U.N.T.S. 287.
96 Genocide Conv. arts. 1, 5; Principles of international cooperation in the detection, arrest,
extradition and punishment of persons guilty of war crimes and crimes against humanity art. 1,
G.A. Res. 3074, at 79, U.N. GAOR, 28th Sess., Supp. No. 30, U.N. Doc. A/RES/3074 (Dec. 3,
1973) [hereinafter G.A. Res. 3074].
97 G.A. Res. 3074, supra note 96, arts. 1, 4.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 20
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 87

according to the law of nations even prior to World War II."' The Act pro-
vides that "[e]very person who ... commits outside Canada, (a) genocide, (b)
a crime against humanity, or (c) a war crime . . . may be prosecuted for that
offence . . ."99
In addition to its prescriptive authority to exercise universal jurisdiction,
Canada was permitted under the customary international law related to armed
conflict to detain Barrett and Balthasar. As noted in the International Com-
mittee of the Red Cross' publication on customary international humanitarian
law, states are required to remove captured persons from the area of combat
for their own protection. 00 Moreover, captured persons may continue to be
held following the cessation of hostilities if ". . . penal proceedings are pend-
ing against them or if they are serving a sentence lawfully imposed."' 0
If this Court follows the trend established by the international community
dating back to at least 1949, it should find that Canada possessed the lawful
right to assert jurisdiction over Clyde Barrett and Ishmael Balthasar for
crimes against humanity and genocide. These crimes have been established
to be crimes of such gravity as to warrant universal jurisdiction. As Barrett
and Balthasar are believed to have committed these crimes, Canada had a
right and obligation under numerous international treaties and customary
international law, as well as its own laws, to apprehend and detain them.

C. Canadais allowed to choose a judicialforum other than its national

courts to prosecute Clyde Barrettand IshmaelBalthasar,and is also obli-
gated to cooperate with the InternationalCriminalCourt as party to the
Court.

As discussed in the above section, Canada has the legislative authority to

try Barrett and Balthasar for crimes against humanity. That legislative au-
thority, however, does not deny Canada the option to surrender them to an
international forum for prosecution. The power of a state to delegate its judi-
cial authority in special circumstances has precedent dating back to World
War II. The International Military Tribunal at Nuremberg was a treaty crea-
tion, which provided for the jurisdiction over several crimes that were not
directly linked to any of the parties to the treaty.10 2 The London agreement
that established the tribunal was a combination of territorial and universal
jurisdiction, 0 3 but as the court reasoned, the Nazi defendants could not argue

9 Crimes Against Humanity and War Crimes Act § 6(2), S.C. 2000, c. 24 (Can.).
9 Id. § 6(1).
' 1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL
HUMANITARIAN LAW 435 (2005).
1o' Id. at 451-52.
102 Scharf, supra note 92, at 103.
103 Id.

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 21
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

88 CANADA-UNITED STATES LA WJOURNAL [Vol. 37, No. 1]

that there was lack of jurisdiction as the court was merely doing .. . together
what any one of them might have done singly; for it is not to be doubted that
any nation has the right thus to set up special courts to administer law."1 04
Therefore, although Canada, as well as a number of other states, has the au-
thority to try Barrett and Balthasar for crimes against humanity, no rule of
law prohibits them from delegating to an international judicial body such as
the ICC.
Furthermore, international law often expressly provides for adjudication
in international forums. For example, the Genocide Convention states that a
competent tribunal, either in the territory where committed, or by one that is
of international character, is the proper forum to try acts of genocide. 05 In
addition, the origins of the ICC reveal the intention of states to utilize the
court for serious international crimes. The United States itself declared dur-
ing the drafting of the Rome Statute that certain crimes justifiably warrant
international prosecution, merely due to the fact that the crimes are grave and
because the international community at large has an interest in seeing them
resolved.106 Moreover, the United States also stated that it was committed to
prosecuting crimes against humanity ". . . both at the national and the inten-
07
tional level."
Lastly, not only is Canada lawfully permitted to delegate its judicial au-
thority to the ICC, it is bound to cooperate with the court. State parties to the
ICC are required to fully cooperate with the Court, both during the investiga-
tional phase and during the prosecution. 0 8 Furthermore, when the court's
prosecutor has sought a valid arrest warrant, as has occurred in the present
case, states that are party to the ICC can be required, upon request, to comply
and surrender individuals within their custody.' 09 Therefore, Canada is
bound as a party to the court to surrender Barrett and Balthasar upon request
by the ICC.

10 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY

TRIBUNAL 461 (1948).
105 See Genocide Cony., supra note 76, art. 6.
106 Ad Hoc Committee on the Establishment of an International Criminal
Court, Comments
Received Pursuantto Paragraph4 of GeneralAssembly Resolution 49/53 on Establishment of
an InternationalCriminalCourt, 64, UN Doc. A/AC.244/1/Add.2 (March 31, 1995).
107 Id. T 7.
108 Rome Statute, supra note 80, art. 86.
'" Id. art. 89(1).

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 22
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 NiagaraInternationalMoot Court Competition 89

D.Internationallaw prohibitsIshmael Balthasar'sclaim of head ofstate

immunity for his crimes against humanity.

Immunity for state and diplomatic officials is a long recognized principle

of customary international law.110 A number of exceptions to this immunity
exist, however, particularly with regard to violations of international criminal
law when adjudicated in an international forum. The court should first con-
sider, however, the argument that Ishmael Balthasar does not factually quali-
fy for head of state immunity. As the record indicates, Balthasar holds the
title, Minister of Internal Affairs, while his brother, Raffliki Balthasar retains
the actual position of head of state or government. Although a diplomatic
agent abroad qualifies for criminal immunity,1ti a government official,
whether acting as the de facto head or not, should not legitimately fall within
the protection of head of state immunity. Furthermore, diplomatic and head
of state immunity are designed to immunize only for acts abroad. If one
carefully examines this Court's opinion in the Arrest Warrant case, one will
find that the court stated specifically that a diplomatic official ". when
. .
abroad enjoys full immunity from criminal jurisdiction . . . .12 Therefore,
as Ishmael Balthasar's overt criminal acts occurred while inside the territory
of Tangoon, he is not immunized from criminal liability resulting from the
effects abroad.
Even if Balthasar is deemed to be Tangoon's head of state, and therefore,
technically eligible for immunity, he is still barred from asserting it to avoid
prosecution in the present case. Contemporary thought on head of state im-
munity dictates that state officials are not immune from prosecution for in-
ternational criminal acts such as genocide or crimes against humanity. 13
This assertion is supported by the belief that such criminal conduct could not
be considered official acts.l14 Furthermore, the international community has
generally denied head of state immunity with regard to grave violations of
international criminal law. The London Charter for the International Military
Tribunal in 1945,"' the Charter for the Military Tribunal of Tokyo," 6 Con-

110ROSANNE VAN ALEBEEK, THE IMMUNITY OF STATES AND THEIR OFFICIALS IN

INTERNATIONAL CRIMINAL LAW AND INTERNATIONAL HUMAN RIGHTS LAW 159 (2008).
u1 Vienna Convention on Diplomatic Relations art. 31, April 18, 1961, 500 U.N.T.S. 95.
112 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. BeIg.), 2002 I.C.J. 3, 22 (Feb.
14).
113 Michael P. Scharf, Application of Treaty-Based UniversalJurisdictionto Nationals
of
Non-Party States, 35 NEW ENG. L. REv. 363, 378-379 (2001).
114 Id.

115 Agreement for the Prosecution and Punishment of the Major War Criminals of the Eu-
ropean Axis, and Charter of the International Military Tribunal art. 7, Aug. 8, 1945, 82
U.N.T.S. 280.
116 Charter of the International Military Tribunal for the Far East art. 6, Jan. 19, 1946,
T.I.A.S. 1589.

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 23
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

90 CANADA-UNITED STA TES LAW JOURNAL [Vol. 37, No. 1]

vention on the Prevention and Punishment of the Crime of Genocide," 7 the

Statute of the International Criminal Tribunal for the former Yugoslavia,' 18
and the Statute of the International Criminal Tribunal for Rwandall 9 all main-
tain individual criminal liability regardless of official status. In the present
case, Article 27 of the Rome Statute expressly denies immunities attaching to
official status, and further states that the provisions of the statute apply equal-
ly, including to heads of state. If Article 27 is considered in conjunction with
the opinion expressed by the applicant in the Arrest Warrant case, then Bal-
thasar cannot claim immunity. In the Arrest Warrant case, the Congo con-
ceded that even if a specific court at a particular time is barred from prose-
cuting due to an attached immunity, that bar does not prevent another court"
... not bound by that immunity . . . " from subsequently exercising jurisdic-
tion.120 If the court considers the customary trend with regard to Ishmael
Balthasar, a de facto head of state within his territory, alleged to have com-
mitted grave international crimes, it is clear that the Rome Statute, as an in-
ternational agreement with a positive provision barring head of state immuni-
ty, should be respected and Balthasar's claim to immunity denied.

CONCLUSION

International law permitted Canada's intervention in Tangoon, the appre-

hension and detention of Clyde Barrett and Ishmael Balthasar, and further
permits their surrender to the ICC. Canada lawfully responded to a request
for assistance from Samutra, and entered Tangoon under the authority of the
UN's "Uniting for Peace" resolution and the principles of collective self-
defense. Moreover, Canada maintained a right of action under the "Respon-
sibility to Protect" doctrine. Upon lawfully entering Tangoon, Canada was
lawfully permitted to apprehend and detain Clyde Barrett and Ishmael Bal-
thasar. Furthermore, Canada is allowed to choose a non-domestic judicial
forum, such as the ICC, to adjudicate the suspected crimes. Lastly, Ishmael
Balthasar is not entitled to head of state immunity due to his actual position
within the government, and the denial of head of state for grave violations of
international criminal law. The State of Canada prays that this Court uphold
its humanitarian actions, the apprehension and detention of Clyde Barrett and
Ishmael Balthasar, and that it allows their surrender to the ICC.

117 Genocide Conv., supra note 76, art. 4.

118 Statute of the International Criminal Tribunal for the former Yugoslavia art. 7, S.C. Res.
827, U.N. Doe. S/RES/827 (May 25, 1993).
H9 Statute of the International Criminal Tribunal for Rwanda art. 6, S.C. Res. 955, U.N.
Doc. SIRES/955 (Nov. 8, 1994).
120 Arrest Warrant, supra note 112, 2002 I.C.J. at 20.

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 24
 Allen and Pitts: Memorial of the Respondent

Respondent Brief-2011-2012 Niagara InternationalMoot Court Competition 91

Respectfully submitted,

TEAM#: 2012-16R
Counsel for the Respondent,
the Government of Canada

Published by Case Western Reserve University School of Law Scholarly Commons, 2012 25
 Canada-United States Law Journal, Vol. 37 [2012], Iss. 1, Art. 16

https://scholarlycommons.law.case.edu/cuslj/vol37/iss1/16 26