Canada (applicant) v. United States of America (respondent): the case concerning Hadi Kuzbari: Bench memorandum.

• Author: Peil, Michael
• Position: Year 2013 Niagara Moot Court Competition

TABLE OF CONTENTS About the Authors PART I: GENERAL INFORMATION I. Introduction II. Synopsis of Facts A. Key Names/Places B. Key Facts/Dates III. Sources of International Law A General B. Treaties C. Customary International Law D. General Principles of Law E. Decisions and Publicists IV. Burdens of Proof PART II: LEGAL ANALYSIS I. Whether the U.S. seizure of the Detroit inventory violated international law? A. Did the U.S. seizure of POCo property at the Detroit warehouse constitute an unlawful expropriation without fair compensation? B. If the seizure constituted an expropriation, does the United States argument that it was required to seize the POCo assets by UN Security Council Resolutions 1267 and 1989 provide a valid defense? 1. Since the assets belong to POCo (a non-listed entity), not Kuzbari or Hamoukar, are they outside the scope of the Security Council resolutions? 2. Do Security Council Resolutions 1267 and 1989 require "seizing" assets? 3. Once the Canadian Government froze the assets, giving POCo a permit to "maintain but not to sell, use or otherwise dispose" of the inventory, did the United States still have an obligation/right to seize the assets? 4. Does the U.S. action violate international standards of due process? II. Whether Canada's granting of refugee status to Kuzbari violated international law? A. Is Canada permitted to grant refugee (asylum) status to whomever it wants? B. Does the fact that Kuzbari is on the Consolidated List render him an excluded person (under the "acts contrary to the purposes and principles of the UN" clause) per se? C. Does the UN Security Council Travel Ban require Canada to prohibit terrorist-associated persons like Kuzbari from crossing its border? D. There is considerable concern about due process protections afforded by the 1267 Committee. Does Kuzbari's situation raise those concerns? Are they relevant to the outcome of this case? 1. What concerns have been raised regarding the due process protection afforded by the 1267 Committee? 2. Does Kuzbari's situation raise these concerns and are they relevant to the outcome of the case? Sponsored by the Canada-United States Law Institute ("CUSLI")

2013 Niagara Problem written by Michael A. Peil

2013 Bench Memorandum written by Michael P. Scharf

with the assistance of

Tyler Talbert, Charlotte Greene, Kendall Kash, Jiefei Yang, Danyella Tonelli, Alison Mahon, Jennifer Spencer, Kelly Gans, Patrick Maloney, Erica Evans, Richard Wanerman, Sara Grout, and Katlyn Kraus.

PART 1: GENERAL INFORMATION

Introduction

The purpose of this Bench Memorandum is to provide judges in the Niagara Moot Court Competition a summary of the basic factual and legal issues in the 2013 Niagara Problem (the "Compromis"). This Bench Memorandum should be read in conjunction with the teams' briefs that you are judging; the Compromis, which is in essence a stipulation of facts agreed to by the two Parties; and the Corrections/Clarifications which supplements the Compromis. The Compromis is intended to present the competitors with a balanced problem, such that each side has strengths and weaknesses in its case. This Bench Memorandum is not meant to be an exhaustive treatise on the legal issues raised in the Compromis, and Judges should not be surprised when, in evaluating either a Brief or an oral argument, they see arguments or authorities not discussed in this memorandum. Their absence from this Bench Memorandum does not suggest that such arguments are not relevant or credible.

2. Synopsis of Facts

   The 2013 Niagara Moot Court Case concerns two issues: First, whether the U.S. seizure of the Detroit Inventory was a violation of international law. And second, whether Canada's granting of refuges status to Hadi Kuzbari was lawful under international law. While names of some real-life officials are used in the Compromis, all facts contained therein are fictional.

   1. Key Names/Places

      Hamoukar, LLC: A Syrian corporation primarily engaged in the manufacture and sale of surgical hospital supplies. All of its factories are located in Syria. It maintains offices and warehouses in Egypt, Iraq, Jordan, and Saudi Arabia. Employees more than 15,000 persons and has annual revenue in excess of US $150 million.

      Hadi Kuzbari: Hamoukar LLC's founder.

      Purcell Operations Corporation (POCo): An Ontario corporation, principally engaged in the sale of medical equipment to private hospitals and clinics.

      Steve Purcell: POCo's founder, a Canadian citizen who was a friend

      and classmate of Hadi Kuzbari at Wilfrid Laurier University in Canada.

      Warehouse Spaces: POCo stores its inventory in Port Coquitlam, British Columbia, Sante-Julie, Quebec, and Detroit Michigan.

      Toronto Dominion Bank: A federally-regulated Canadian bank, headquartered in Toronto.

      Stockwell Day: Canadian Public Safety Minister.

      Jason Kenney: The Canadian Minister of Citizenship and Immigration.

      Ambassador David Jacobson: The U.S. Ambassador to Canada.

      Refugee Protection Division of the Canadian Immigration and Refugee Board (IRB): Deals with questions of refugees and asylum for Canada.

      Stephen Harper: Canadian Prime Minister.

      Bashar al-Assad: Syrian President.

      Hillary Clinton: U.S. Secretary of State.

      The Al-Qaida Taliban Sanctions Committee: UN Organization charged with monitoring the funding of terrorism, among other tasks.

      United States Office of Foreign Asset Control (OFAC): U.S. governmental agency charged with monitoring the control of assets. OFAC is subdivision of the U.S. Department of the Treasury.

   2. Key Facts/Dates

      1990: Hamoukar, LLC founded by Hadi Kuzbari.

      1993: POCo founded by Steven Purcell.

      1995: POCo and Hamoukar enter into a business arrangement whereby POCo sells Hamoukar-manufactured equipment.

      October 21, 2006: The UN Security Council's Al-Qaida Taliban Sanctions Committee places Hamoukar, LLC and Hadi Kuzbari on the Al-Qaida sanctions list.

      October 22, 2006: U.S. Office of Foreign Assets Control adds Kuzbari and Hamoukar, LLC to its Specially Designated Nationals (SDN) list.

      October 23, 2006: Office of the Superintendent of Financial Institutions Canada adds Kuzbari and Hamoukar to the UN Sanctions list. Toronto-Dominion Bank freezes Hamoukar, LLC's account containing (Can) $35 million.

      October 25, 2006: Public Safety Minister Stockwell Day announces that Canada had designated Hamoukar, LLC as a terrorist group, pursuant to the Criminal Code of Canada.

      October 27, 2006: POCo's attorney contacts Public Safety Canada explaining that POCo holds about $25 million worth of inventory pursuant to a Hamoukar/POCo sales arrangement.

      October 30, 2006: Purcell contacts Kuzbari and informs him that POCo would need to terminate the sales arrangement and that Kuzbari needs to renounce any interest in the inventory at Purcell's warehouse. Purcell records the conversation. Kuzbari signs a termination agreement relinquishing rights to the inventory.

      November 1, 2006: Canadian Minister of Foreign Affairs grants a permit to POCo to maintain inventory at the specified location, but not to sell, use, or otherwise dispose of the equipment.

      December 5, 2006: Agents of the U.S. Federal Bureau of Investigations (FBI) arrive at POCo's Detroit, Michigan warehouse and seize all POCo property contained therein. Purcell is notified of the seizure.

      December 6, 2006: Purcell contacts officials at the Canadian Department of Foreign Affairs notifying them of the seizure of the property from its warehouse in Detroit. POCo files a complaint in the U.S. District Court of Colombia against the United States, the U.S. Department of Justice, and the U.S. Department of Treasury, as well as, in their official capacities, U.S. Secretary of the Treasury Henry Paulsen and Attorney General Alberto Gonzalez. The complaint in Purcell Operations Corp. v. Paulsen alleged that the assets were improperly identified as "controlled by" Hamoukar, and requested an order unblocking the inventory.

      February 10, 2007: The U.S. District Court granted defendants' motion to dismiss on the grounds that the assets had been properly designated by OFAC. POCo appeals the decision, but the U.S. Supreme Court denies the petition for cert. Meanwhile, Kuzbari protests the sanctions against him in all available forums. Kuzbari also presents an application for delisting with the UN Ombudsperson. That application is still pending.

      March 2011: Kuzbari appears at the Canadian Embassy in Beirut, alleging that he had snuck across the Syrian-Lebanese border under a false identity, fleeing government persecution in the wake of the January-February anti-Assad protests across Syria. Kuzbari claims that Assad had named him a "co-conspirator and key organizer" of the anti-Assad protests. Kuzbari also claims that his family and several of Hamoukar, LLC's key officers had disappeared. He formally applies for political asylum and asks for permission to move to Canada. All aspects of Kuzbari's story were confirmed.

      --The Canadian consulate found that Kuzbari satisfied all elements of the Refugee Convention, but expressed concern that Kuzbari's and Hamoukar's inclusion on the UN's terrorism list might render him and excludable person under Article IF of the 1951 Refugee Convention.

      --Ambassador Jacobson announces that Kuzbari's presence on the terrorism list rendered him ineligible for Asylum.

      July 10, 2011: IRB grants Kuzbari refugee status and admission to Canada. During the entire proceeding, Kuzbari remained in Canada's Beirut embassy, where he remains presently. U.S. Secretary of State Hillary Clinton lodges a formal complaint asserting that IRB's decision violated Canada's obligations under Resolution 1267 and 1989.

      January 2012: After fruitless negotiations, Canadian and American delegations recommend that the matters be referred for arbitration or judicial determination.

      August 2012: Canadian and U.S. official submit their claims to the International Court of Justice, pursuant to the Compromis, an agreed-upon stipulation of facts.

3. Sources of...