The case concerning intervention in Tagoon.

• Author: Scharf, Michael P.
• Position: 2012 Niagara Moot Court Competition: United States v. Canada

TABLE OF CONTENTS About the Author PART 1: GENERAL INFORMATION I. Introduction II. Synopsis of the Facts 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 2: LEGAL ANALYSIS I. Whether Canada's intervention into Tangoon was lawful under international law? A. Was the Canadian armed intervention justified by the Responsibility to Protect doctrine? B. Was the Canadian armed intervention justified by the U.N. General Assembly Resolution? C. Was the Canadian armed intervention justified under the doctrine of collective self-defense? II. Whether Canada's apprehension, detention, and proposed surrender to the ICC of Ishmael Balthasar and Clyde Barrett are lawful under international law? A. Was the apprehension justified under the Law of War and Human Rights Law? B. Was the detention lawful under the Mala Captus bene detentis doctrine? C. Can the ICC exercise jurisdiction over nationals of a non-party state who take action in the territory of a non-party state? D. Did Canada violate Balthasar's Head of State immunity when it captured and/or subsequently detained him for eventual surrender to the ICC? UNITED STATES OF AMERICA (APPLICANT)

V.

CANADA (RESPONDENT)

BENCH MEMORANDUM

PART 1: GENERAL INFORMATION

1. 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 2012 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 THE FACTS

   The 2012 Niagara Moot Court Case concerns two issues: First, whether the (fictional) Canadian humanitarian intervention into the State of Tangoon was lawful under international law? And second, whether the (fictional) Canadian apprehension of Tangoon's leader, Ishmael Balthasar, and U.S. national Clyde Barett, for surrender to the International Criminal Court, is lawful under international law.

   1. Key Names/Places:

      Tangoon: A State situated on the mountainous western half of the Pacific island of Tanmutra, ruled by a religious regime that adheres to an ultra-orthodox form of the Tanmutran religion.

      Raffiiki Balthasar: Tanmutran High Priest who led Tangoon as Head of State from its independence in 1960 until recently turning power over to his younger brother, Ishmael Balthasar.

      Ishmael Balthasar: Current de facto leader of Tangoon, who holds the title Minister of the Interior.

      Mont Demon: Tangoon Mountain (elevation 7,100 feet) that contains the world's largest known deposit of cobaltite, from which the strategic mineral cobalt is derived.

      Demonville: Tangoon's largest village (pop. 14,000). The village is located on the lower elevations of the south face of Mont Demon. Geomin Corp: U.S. incorporated multinational mining company.

      Clyde Barrett: U.S. citizen who is CEO and chief geologist of Geomin Corp.

      Samutra: State situated on the eastern half of the Pacific island of Tanmutra, ruled by a democratic government.

   2. Key Facts/Dates:

      1991: Tangoon and Samutra are both admitted into the United Nations.

      2010: Samutra becomes Party to the ICC Treaty.

      2007: An extremely rich cobaltite vein is discovered on the north face of Mont Demon in Tangoon. U.S. company Geomin Corp. enters into a contract with Tangoon (signed by Ishmael Balthasar) for exclusive rights to mine the site of the cobaltite vein on Mont Demon for 20 years in return for an annual payment to the Tangoon regime of $20 million. Geomin Corp., in turn, enters into a twenty-year contract with the U.S. Defense Logistics Agency Strategic Materials to provide all of the cobalt mined at Mont Demon to the United States Government at a price of $20 a pound (15,000 tons were provided in 2010).

      January 2011: Geomin Corp. discovers that the village of Demonville is situated directly on top of a second extremely rich cobaltite vein, located very close to the surface. Residents of the village turn down Geomin Corp's offer to purchase the land for a mine.

      April 15, 2011: Clyde Barrett of Geomin Corp. meets with Ishmael Balthasar to urge Balthasar to forcibly relocate the Demonville residents in return for an extra $50 million per year from Geomin. Balthasar agrees to do so. Notes of the meeting are recorded in Balthasar's diary.

      May 23, 2011: Barrett and Balthasar meet again. Barrett provides Balthasar weather reports of an approaching tropical cyclone and suggests the huge storm could provide the opportunity that Balthasar was looking for to rid the villagers from the new mining site. Notes of this meeting are also recorded in Balthasar's diary.

      May 25, 2011: Tropical Cyclone "Kodo" sweeps through the area of the Pacific Ocean where Samutra and Tangoon are located, battering the island with winds as strong as 160 mph, over 40 inches of rain, and waves as high as 20 feet. The government of Samutra issues timely warnings and takes effective steps to protect its population from the massive storm. In contrast, warnings were issued in Tangoon only to members of the ruling ultra-orthodox religious elite; the Tangoon authorities did nothing to notify the Tangoon civilian population of the imminent danger.

      May 30, 2011: U.N. Secretary General issues a report on the situation in Tangoon after the Cyclone, which documents that most of the civilian population of Tangoon was rendered homeless and without potable drinking water, and thousands of unburied corpses were present throughout the lowlands and in the rivers flowing east to Samutra. The village of Demonville was especially hard hit by mudslides, which destroyed nearly all of its structures. The day after the cyclone, Geomin Corp. began blasting and excavating a massive open-pit cobaltite/cobalt mining site on land that had been previously occupied by the Demonville residents. According to eye-witness accounts, Geomin Corp. was using a form of slave labor at the site provided by the Tangoon government under its so-called "National Service Program." The Secretary General observed that following the storm the Tangoon regime had refused offers of humanitarian assistance from international NGOs and several States, and had taken no action to dispose of the thousands of diseased and rotting corpses, despite the Secretary General's warning that the unburied corpses were spreading diseases including cholera, typhoid, and dysentery to downstream populations in both Tangoon and Samutra, and that thousands more would die in both countries if immediate action was not taken to address the spread of the disease and dispose of the corpses.

      May 30, 2011: The government of Samutra refers the situation to the International Criminal Court and requested that the ICC bring charges against Ishmael Balthasar for Crimes Against Humanity for his wanton actions that were directly responsible for tens of thousands of deaths and the spread of disease in both Tangoon and Samutra. ICC opens an investigation.

      May 30, 2011: The government of Samutra requested an emergency session of the U.N. Security Council to address the humanitarian crisis in Tangoon. U.S. threatens to veto French proposed resolution which would have authorized a coalition of willing States "to use all necessary means to enter Tangoon and deliver vital humanitarian aid to its suffering people and take steps to prevent the spread of disease from decomposing corpses. No subsequent action was taken by the Council to respond to the crisis.

      June 2, 2011: At an emergency special session, the U.N. General Assembly, invoking its "Uniting for Peace" authority, adopted Resolution A/RES/65/299, recommending "all necessary means" to deliver humanitarian aid to the people of Tangoon.

      June 3, 2011: Acting at the request of Samutra, the Government of Canada sends the HMCS Algonquin, an Iroquois Class destroyer with a complement of 200 crew and commandos, to Samutra/Tangoon on a humanitarian relief operation.

      June 7, 2011: Canadian commandos land on the island and employ explosives to demolish several portions of the wall separating Samutra and Tangoon.

      --One hundred twenty armed Canadian commandos accompanying 500 medical and relief workers in 100 aid trucks from Samutra then entered Tangoon through the gaps in the border wall, and distributed food, clothing, medicine, and temporary shelters to the surviving Tangoon population.

      --The Samutran relief workers also begin the process of disposing of the thousands of diseased and rotting corpses.

      --A group of Tangoon Security personnel led by Ishmael Balthasar tries to block the convoy of aid trucks as it neared the ruins of Demonville. Canadian commandos take Balthasar into custody and confiscate his incriminating diary.

      --Canadian commandos came upon Geomin's blasting and excavating operations at Demonville. Seeing Tangoon workers engaged in conditions of slave-labor for Geomin, the commandos shut down the operation by disabling the bull dozers, excavators, and scooptrams and apprehend Clyde Barrett, who was running the operation.

      --Canadian commandos transport Balthasar and Clyde back to the Algonquin, docked at the Port of Samutra, where the two men have been held to this day in the ship's brig.

      June 8, 2011: Canada submits a letter to the...