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.

• Author: Allen, Paul A.
• Position: 2012 Niagara Moot Court Competition: United States v. Canada

TABLE OF CONTENTS INDEX OF AUTHORITIES JURISDICTIONAL STATEMENT QUESTIONS PRESENTED STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. CANADA'S INTERVENTION INTO TANGOON IS LAWFUL UNDER INTERNATIONAL LAW 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 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 C. Canada had a responsibility to intervene in Tangoon pursuant to the principles under the "Responsibility to Protect" doctrine 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 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 investigation after a lawful referral B. Canada acted in accordance with both international and domestic law when it apprehended and detain Clyde Barrett and Ishmael Balthasar 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 D. International law prohibits Ishmael Balthasar's claim of head of state immunity for his crimes against humanity CONCLUSION 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) 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 461 (1948) 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 Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. 1589 Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (III) A, art. 2, A/760 (Dec. 9, 1948) Convention for the Suppression of Unlawful Seizure of Aircraft, Oct. 14, 1971, 860 U.N.T.S. 105 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135 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 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 Principles of International Cooperation in the Detection, Arrest, Extradition 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) Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S 90 Statute of the International Court of Justice art. 36(1), June 26, 1945, 33 U.N.T.S. 993 Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) Statute of the International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) The Responsibility to Protect, G.A. Res 63/308, U.N. Doc A/Res/63308 (Sept. 14, 2009) U.N. Charter Uniting for Peace Resolution, G.A. Res 377 (V) A, U.N Doc. A/1456 (Nov. 3, 1950) Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 (1948) Vienna Convention on Diplomatic Relations, April 18, 1961, 500 U.N.T.S. 95 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 INTERNATIONAL CASES Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14) Legal Consequences of Construction of Wall In Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9) Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, Judgment 1986 I.C.J. 14 (June 27) S.S. "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7) DOMESTIC LAW Crimes Against Humanity and War Crimes Act, 2000 S.C., ch. 24 (Can.) DOMESTIC CASES United States v. Rezaq, 134 F.3d 1121 (D.C. Cir. 1998) United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991) BOOKS JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 435 (2005) ROSANNE VAN ALEBEEK, THE IMMUNITY OF STATES AND THEIR OFFICIALS IN INTERNATIONAL CRIMINAL LAW AND INTERNATIONAL HUMAN RIGHTS LAW (2008) 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) Eustace Chikere Azubuike, Probing the Scope of Self Defense in International Law, 17 ANN. SURV. INT'L & COMP. L. 129 (2011) Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785 (1988) Michael P. Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 NEW ENG. L. REV. 363 (2001) Michael P. Scharf, The ICC's Jurisdiction over the Nationals of Non-Party States." A Critique of the U.S. Position, LAW & CONTEMP. PROBS., Winter 2001, at 67 Zia Modabber, Collective Self-Defense: Nicaragua v. United States, 10 LOY.L.A. INT'L & COMP L REV. 449 (1988) REPORTS Ad Hoc Committee on the Establishment of an International Criminal Court, Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53 on Establishment of an International Criminal Court, U.N. Doc. A/AC.244/1/Add.2 (March 31, 1995) The Secretary-General, Report of the Secretary-General on the Implementing the Responsibility to Protect, delivered to the General Assembly, U.N. Doc A/63/677 (Jan. 12, 2009) OTHER AUTHORITIES Compromis Between the United States (Applicant) and Canada (Respondent) Concerning Intervention in Tangoon (Aug. 29, 2011) Corrections and Clarifications to the Compromis Between the United States and Canada Concerning Intervention in Tangoon (Jan. 17, 2012) Int'l Comm'n on Intervention and State Sovereignty [ICISS], The Responsibility to Protect XI (2001) 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

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. (1) 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 on this matter and shall fully and immediately implement the issued decision. (3)

QUESTIONS PRESENTED

1. Whether Canada's humanitarian intervention and actions under the "Responsibility to Protect" doctrine and United Nations approval were permitted under international law?

2. 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. (5) 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 Tamutran 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 International Covenant on Economic, Social and Cultural Rights, and the Internal 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. (8) Tangoon, however, is ruled by a small, elite group of the ultra-orthodox adherents to the Tanmutran religion. (9) Raffiiki 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. (10) 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. (11) Tangoon's citizens are some of the poorest in the world and suffer health issues under an oppressive, elitist regime within their State that utilize their religious beliefs to prevent the population's use of modern 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. (13) 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 Geomin Corp. is U.S. citizen Clyde Barrett. (15)...