A dispute arising under the statute of the: International Court of Justice February, 2013 the government of Canada (applicant) v. the government of the United States (Respondent): memorial of the applicant.

• Author: Henry, Hilary
• Position: 2012-2013: NIAGARA INTERNATIONAL MOOT COURT COMPETITION

STATEMENT OF FACTS

Hamoukar, LLC (Hamoukar) is a Syrian corporation engaged in the manufacture and sale of surgical and other hospital supplies. (1) Mr. Hadi Kuzbari (Kuzbari), a Syrian national, is the company's founder and currently serves as president and chief executive officer. (2) Purcell Operations Corporation (POCo) is an Ontario corporation also engaged in the sale of medical equipment. (3) POCo's founder and chief executive officer is Steven Purcell (Purcell), a Canadian citizen. (4) POCo and Hamoukar entered a business arrangement in 1995, whereby POCo sells Hamoukar manufactured equipment to Canadian hospitals. (5)

On October, 21, 2006, Hamoukar and Kuzbari were added to a list of sanctioned individuals and entities associated with Al-Qaida by the Al-Qaida and Taliban Sanctions Committee under UN Security Council Resolution 1267. (6) The Committee alleged that Hamoukar had significant financial ties to Al-Qaida and provided financial support to several Al-Qaida associated entities. (7) The U.S. Office of Foreign Asset Control (OFAC) announced on October 22, 2006 that it had added Kuzbari and Hamoukar to its Specially Designated Nationals List. (8) The Office of the Superintendent of Financial Institutions Canada issued a press release on October 23, 2006 notifying Canadian financial institutions that Kuzbari and Hamoukar had been added to the UN Sanctions List. (9)

In response to the October 26th announcement that Canada had designated Hamoukar a terrorist group pursuant to the Criminal Code of Canada, (10) POCo's attorney contacted Public Safety Canada to alert them that POCo currently held approximately $25 million worth of inventory subject to the agreement in its three warehouses. (11)

Following an October 30, 2006 conversation between Purcell and Kuzbari, the two CEOs signed an agreement terminating the sales agreement and stipulating that Hamoukar would receive no proceeds from the merchandise presently in POCo's inventory now or at any time in the future. (12) Pursuant to the original agreement, POCo continues to bear the expenses for marketing and storing the inventory in the original three warehouses, which are leased by POCo under its own name. (13) POCo was granted a permit on November 1, 2006 by the Canadian Minister of Foreign Affairs "to maintain inventory specified in Schedule A at the respective locations specified in that Schedule, but not to sell, use, or otherwise dispose of said equipment." (14)

On December 5, 2006, agents of the Federal Bureau of Investigation (FBI) seized all POCo property contained in the Detroit, MI warehouse. (15) The inventory seized is legally owned by POCo and covered by the aforementioned permit. (16) As of January 1, 2011, OFAC received no reports of property or transactions involving Kuzbari or Hamoukar within the U.S. (17)

Kuzbari continuously protested the sanctions levied against him and his company by offering his personal and financial records to foreign intelligence services, and giving numerous interviews to international news media. (18) Due to his meetings with foreign intelligence officials and the international media, Syrian President Bashar Assad named Kuzbari a "co-conspirator and key organizer" of the January/February anti-Assad protests carried out across Syria. (19) As a result, Syrian security forces arrested and brutally interrogated members of Kuzbari's family and forced the disappearance of several Hamoukar key officers. (20)

In March 2011, Kuzbari fled this government-sponsored persecution and presented himself at the Canadian embassy in Beirut where he formally applied for political asylum and permission to move to Canada. (21) During the course of review, Canadian officials subsequently confirmed all material elements of Kuzbari's story. (22)

The Canadian consular official reviewing Kuzbari's petition determined that Kuzbari satisfied all of the Convention Refugee elements under the Canadian Immigration and Refugee Protection Regulations. (23) Despite an initial exclusion concern from the reviewing consular officer, Kuzbari was granted Convention Refugee status and admission to Canada on July 10, 2011. (24) An Article IF exclusion concern was never raised at the admission hearing. (25)

During the proceedings Kuzbari was housed in the Canadian embassy in Beirut, where he remains to this day. (26) Following the grant of status and admission to Kuzbari, Canadian Prime Minister Stephen Harper stated, "Canada has international obligations under the Refugee Convention. The IRB determined that Mr. Kuzbari--who is, after all, not a terrorist, but a businessman whose organization was tied to terrorist funding. While that meets the standards for asset blocking, it does not rise to the level of individual conduct that would exclude him from the protection of international human rights afforded to refugees." (27)

QUESTIONS PRESENTED

1. Was the United States' seizure of POCo property:

   1. a violation of international law; or

   2. a lawful government action in congruence with international obligations?

2. Did Canada violate international law by granting refugee status to Mr. Kuzbari?

   JURISDICTIONAL STATEMENT

   The governments of Canada and the United States, the Parties, appear before the International Court of Justice (ICJ) pursuant to Article 36(1) of the Statute of the International Court of Justice. (28) The Parties have complied with all the provisions of Article 36(1), and through the Compromis the Parties agree to submit their dispute to the jurisdiction to this Court. Both parties have agreed to fully and immediately implement the decision rendered by the ICJ in this case. (29)

   INDEX OF AUTHORITIES

   Cases

   Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680, 683 (Can.).... 25

   Barcelona Traction (Belg. v. Spain) 1970 I.C.J. Rep. 3.... 17

   Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,.... 25

   Elettronica Sicula S.P.A. (ELSI) (U.S. v. It.) 1989 I.C.J. Rep. 15.... 17

   Holy Land Found, for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002).... 22

   Nat. Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 196, 202 (D.C. Cir. 2001).... 22

   Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982, 1030, 1032 (Can.).... 30

   Suresh v. Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3, [paragraph] 1 (Can.).... 32

   The Paquete Habana, 175 U.S. 677 (1900).... 13

   United States v. Jacobsen, 466 U.S. 109, 113 (1984).... 23

   Yassin Abdullah Kadi and A1 Barakaat International Foundation v. Council, Joined Cases C-402/05 P and C-415/05 P, 2008 ECJ EUR-Lex LEXIS 1954, [2008] ECR 1-6351.... 15

   Statutes

   18 U.S.C.A. [section] 981(a)(l)(G)(i) (2012).... XX

   European Council on Refugees and Exiles,.... XX

   Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Can.).... XX

   Immigration and Refugee Protection Act, S.C. 2001, c. 27, [section] 34 (Can.).... 26

   See 8 U.S.C. [section] 1182(d)(3)(B)(i) (2010).... 31

   Statute of International Court of Justice arts. 36, 40, June 26, 1945, 59 Stat. 1055.... vii

   Other Authorities

   Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness, U.S.-Can., at i, Feb. 4, 2011,.... 35

   Commission of Inquiry on Syrian Arab Republic,.... 26

   European Council on Refugees and Exiles, Position on Exclusion from Refugee Status, 16 Int'l J. Refugee L. 257, 275 (March 2004).... 27, 29

   Exec. Order No. 13224, 31 U.S.C. 595, sec. 1 (2001).... 20

   Human Rights Council, Report of the Independent International Commission on the Syrian Arab Republic, 21st Sess., U.N. GAOR, 21st Sess., Supp. No. 50, A/HCR/21/50, [paragraph] 75 (Aug. 16, 2012).... 26

   Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism 405 (2011).... 27

   Richard J. Hunter, Jr., Property Risks in International Business, 15-SUM Currents: Int'l Trade L.J. 23,28 (2006).... 18

   See John Roth et al., Nat'l Comm'n On Terrorist Attacks Upon The U.S., Monograph On Terrorist Financing 4 (2004).... 14

   World Trade Organization Panel Report, United States--Section 211 Omnibus Appropriations Act of 1998, 2001 WL 881640 (Aug. 6, 2001).... 17

   Treatises

   International Convention for the Suppression of the Financing of Terrorism, pmbl., Dec. 9, 1999, 39 L.L.M. 270, 2178 U.N.T.S. 228.... 16

   North American Free Trade Agreement, U.S.-Can.-Mex., arts. 1102, 1105, Dec. 17, 1992, 32 I.L.M. 289 (1993) (National Treatment and Minimum Standards of Treatment) [hereinafter NAFTA].... 13, 17

   U.N. Charter.... 29

   United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, art. 4(1), Dec. 12-15, 2000, available at http://www.unodc.org/documents/treaties/UNTOC/Publ ications/TOC%20Convention/TOCebook-e.pdf.... 12

   Universal Declaration of Human Rights, G.A. Res. 217 (III) A, arts. 2, 5, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).... 26

   Constitutional Provisions

   U.S. Const.... 18, 21

   Compromis

   Compromis Between Canada (Applicant) and the United States (Respondent) to Submit to the International Court of Justice The Case Concerning "The Terrorist List", [paragraph] 26 (jointly notified to the Court on 29 August 2012) [hereinafter Compromis].... XX

   Compromis, [paragraph] 13.... XX

   Islamic Am. Relief Agency v. Unidentified FBI Agents, 394 F.Supp.2d 34, 49-50 (2005) (quoting Holy Land Found, for Relief & Dev. v. Ashcroft, 219 F.Supp.2d 57, 77 (2002)).... XX

   U.N. Documents

   Report of the Office of the Ombudsperson pursuant to Security Council resolution 1989 (2011), transmitted by letter dated July 30, 2012 from the Ombudsperson addressed to the President of the Security Council, annex, U.N. Doc. S/2012/590 (July 30, 2012) ... 34

   S.C. Res. 1267, [paragraph] 4, U.N. Doc. S/RES/1267 (Oct. 15, 1999) ..32

   S.C. Res. 1267, [paragraph] 4(b), U.N. Doc. S/RES/1267 (Oct. 15, 1999).... 14

   S.C. Res. 1989.... 33

   S.C. Res. 1989.... 34

   U.N. High Comm'r for Human Rights, Independent International Commission of Inquiry on the Syrian Arab Republic established pursuant to United Nations Human Rights Council...