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

TEAM#: 2012-07R

TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................................... iii
JURISDICTIONAL STATEMENT ........................................................................................................v
QUESTIONS PRESENTED ................................................................................................................ vi
STATEMENT OF FACTS ................................................................................................................. vii
SUMMARY OF ARGUMENT ...............................................................................................................1
ARGUMENT ......................................................................................................................................2
I. CANADAS INTERVENTION INTO TANGOON WAS LAWFUL UNDER INTERNATIONAL
LAW .....................................................................................................................................2
A. CANADAS INTERVENTION WAS LAWFULLY CONSISTENT WITH SAMUTRAS
REQUEST FOR ASSISTANCE UNDER ARTICLE 51 OF THE U.N. CHARTER..................3
B. CANADAS INTERVENTION WAS LAWFUL BECAUSE IT WAS DONE PURSUANT
TO THE GENERAL ASSEMBLYS AUTHORIZATION TO INTERVENE, WHICH WAS
ADOPTED UNDER ITS UNITING FOR PEACE AUTHORITY AND THE
RESPONSIBILITY TO PROTECT DOCTRINE ...................................................................5
1. THIS COURT SHOULD RECOGNIZE THE RESPONSIBILITY TO PROTECT
DOCTRINE AS CUSTOMARY INTERNATIONAL LAW ...............................................8
2. CANADAS ACTIONS WERE CONSISTENT WITH THE RESPONSIBILITY TO
PROTECT DOCTRINE ...............................................................................................9
II. CANADAS APPREHENSION, DETENTION, AND PROPOSED SURRENDER TO THE ICC
OF ISHMAEL BALTHASAR AND CLYDE BARRETT ARE LAWFUL UNDER
INTERNATIONAL LAW .......................................................................................................10
A. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED HEINOUS
INTERNATIONAL CRIMES OF GENOCIDE AND CRIMES AGAINST HUMANITY
POINT ONE ....................................................................................................................10
1. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED THE CRIME
OF GENOCIDE ........................................................................................................10
2. ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED CRIMES
AGAINST HUMANITY .............................................................................................11
B. CANADA LAWFULLY EXERCISED JURISDICTION TO PUNISH PERPETRATORS
OF CRIMES AGAINST HUMANITY AND GENOCIDE ....................................................12
1. MILITARY FORCE WAS LAWFUL TO FACILITATE THE ARREST AND
DETENTION OF ISHMAEL BALTHASAR AND CLYDE BARRETT............................12
i

2. THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER

ISHMAEL BALTHASAR AND CLYDE BARRETT ......................................................14
3. THE GENOCIDE CONVENTION PROVIDES UNIVERSAL JURISDICTION ................15
4. CANADAS OWN LEGISLATION PROVIDES UNIVERSAL JURISDICTION ..................16
C. THERE IS NO HEAD-OF-STATE IMMUNITY AVAILABLE FOR ISHMAEL
BALTHASAR. ................................................................................................................17
1. CANADAS OWN LEGISLATION PROVIDES UNIVERSAL JURISDICTION ..................17
2. BOTH THE ICC AND GENOCIDE CONVENTION EXPLICITLY PROHIBIT
HEAD-OF-STATE IMMUNITY .................................................................................18
CONCLUSION .................................................................................................................................18

ii

TABLE OF AUTHORITIES
INTERNATIONAL TREATIES, INSTRUMENTS & DOCUMENTS
2005 World Summit Outcome, G.A. Res. 60/1, U.N. Doc. A/RES/60/1, at 138-39
(Oct. 24, 2005) .............................................................................................................................2, 9
A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on
Threats, Challenges and Change, UN Doc. A/59/565 (2004)....................................................8, 10
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,
78 U.N.T.S. 277 .......................................................................................................................16, 18
G.A. Res. 377(V), U.N. Doc. A/1775 (Nov. 3, 1950). ....................................................................6
G.A. Res. 3314 (XXIX), U.N. GAOR, 29th Sess., Supp. No. 31, art. 3(b) U.N. Doc.
A/9631 (Dec. 14, 1974) ...................................................................................................................4
The Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its
Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October
1907..................................................................................................................................................4
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 .......12, 13
Intl Commn on Intervention and State Sovereignty, The Responsibility to Protect:
Report of the International Commission on Intervention and State Sovereignty, at VIII
(2001) .....................................................................................................................................8, 9, 10
North Atlantic Treaty art. 5, Apr. 4 1949, 63 Stat. 2241, 34 U.N.T.S. 243 .....................................3
Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S 3 .............. passim
S.C. Res. 1674 (Apr. 28, 2006). .......................................................................................................9
U.N. Charter .............................................................................................................................2, 3, 6
INTERNATIONAL CASE LAW
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986
I.C.J. 14 (June 27) ....................................................................................................................2, 3, 4
Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 189, 195, 57, 71 (Nov. 6) ....................................4
The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
2002 I.C.J. 3 (Feb. 14) ...................................................................................................................17
DOMESTIC AUTHORITY
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 (Can.) .....................................17

iii

U.S. v. Noriega, 117 F.3d 1206 (11th Cir. 1997) ............................................................................18

SECONDARY MATERIALS: ARTICLES
Annie Wartaninan, The ICC Prosecutors Battlefield: Combating Atrocities While
Fighting for States Cooperation Lessons from the U.N. Tribunals Applied to the Case of
Uganda, 36 Geo. J. Intl L. 1289 (2005) .......................................................................................14
Carsten Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?,
101 A.J.I.L. 99, 99-100 (2007) ........................................................................................................9
Michael P. Scharf, The ICCs Jurisdiction Over the Nationals of Non-Party States: A
Critique of the U.S. Position, 64-WTR Law & Contemp. Probs. 67 (2001) ...........................14, 15
R.Y. Jennings, The Caroline and McLeod Cases, 32 Am. J. Int'l L. 82 (1938) ..............................3
SECONDARY MATERIALS: OTHER
Restatement (Third) of Foreign Relations 102 (1987)......................................................8, 12, 13
BOOKS
Compromis ............................................................................................................................. passim
MALCOLM N. SHAW, INTERNATIONAL LAW 1123 (Cambridge University Press, 6th ed.
2008) ........................................................................................................................................2, 3, 6

iv

JURISDICTIONAL STATEMENT
Canada and the United States of America have agreed to submit this dispute to the
International Court of Justice Pursuant to Article 40(1) of the Statute of the International Court
of Justice and in accordance with the Compromis notified to the Court on August 29, 2011.
Pursuant to Article 36(1) of the Statute, the Court has jurisdiction to decide all matters referred to
it for decision. The parties have agreed to implement the decision of the Court.

QUESTIONS PRESENTED
I.

Whether Canadas intervention into Tangoon was lawful under international law?

II.

Whether Canadas apprehension, detention, and proposed surrender to the ICC of

Ishmael Balthasar and Clyde Barrett are lawful under international law?

vi

STATEMENT OF FACTS
Tangoon and Samutra
Tangoon and Samutra are located on the island of Tanmutra, a 1,000 square kilometer
island, which is located just south of the equator in the Pacific Ocean. Each country is composed
of ethnic Tanmutrans, an ancient people who settled on the island over a thousand years ago. In
1990, Tanmutra split into two separate and independent States. A faction of Tanmutrans, led by
the Tanmutran High Priest, Raffiiki Balthasar, seized control of the mountainous, western
portion of the island. This Faction declared the creation of the State now called Tangoon, and
erected a twenty-foot high border wall dividing the island in two. Although Raffiiki Balthasar is
the current head of State, his younger Brother Ishmael Balthasar is Tangoons current de facto
political and military leader.
The Demon Mine and Demonville
In 2007, a rich deposit of cobaltite was discovered on the north face of Mont Demon,
Tangoons largest peak. In August 2007, Ishmael Balthasar granted the U.S. incorporated
Geomin Corp. an exclusive twenty-year license to mine and process the cobaltite/cobalt from
Mont Demon for export to the United States. Clyde Barrett, the CEO and chief geologist of
Geomin Corp. moved to Tangoon to oversee the mining operation.
Before the cyclone, Demonville was Tangoons largest village and was located on the
lower elevations of the southern face of Mont Demon. In January 2011, geologists from Geomin
Corp. discovered that Demonville was situated directly on top of a second extremely rich
cobaltite vein. Geomin Corp. offered to purchase the land from the villages, but the residents
declined to sell.

vii

On April 15, 2011, Barrett met with Balthasar to discuss establishing a second mine at
the Demonville location. Balthasar took extensive notes of the meeting. According to these
notes, Barrett urged Balthasar to forcibly relocate the Demonville residents. In return, Barrett
promised to increase the annual licensing fee to the Tangoon regime by $50 million. Barrett
urged Balthasar to burn them out if you have to. Balthasar agreed to the deal, stating that he
would find a way to get rid of those godless villagers for Geomin Corp. Balthasar added,
however, that he had to bide his time since the Tangoon army was not powerful enough to
forcibly evict 14,000 villagers.
The Tropical Cyclone
On May 23, 2011, Balthasar and Barrett had another meeting. At this meeting, Barrett
provided Balthasar with weather reports of an approaching tropical cyclone and suggested that
the storm could provide the opportunity that Balthasar was waiting for. On May 25, 2011, a
tropical cyclone swept through the area of the Pacific Ocean where Samutra and Tangoon are
located. The Tangoon Regime did nothing to warn the civilian population of Tangoon about the
oncoming storm. The island was battered with 160 mph winds, over 40 inches of rain, and
waves as high as 20 feet. Roughly 80 percent of Tangoons residential structures and nearly all
of its fishing boats were destroyed. Additionally, tens of thousands of corpses were observed
floating in the streams, rivers and lakes of Tangoon,. Most of Tangoons surviving population
was rendered homeless and without potable drinking water.
The Humanitarian Intervention
On May 30, 2011, the UN Secretary General issued a report on the situation in Tangoon,
where he urged to the Security Council to act without delay to authorize humanitarian
intervention into Tangoon. That same day, Samutra requested an emergency session of the U.N.
viii

Security Council. The Security Council met and circulated a draft resolution which would have
authorized a coalition of the willing to use all necessary means to enter Tangoon and deliver
vital humanitarian aid and to take steps to prevent the spread of disease. After the United States
indicated that it would veto the resolution if it was brought to a vote, The Security Council
adjourned.
On June 2, 2011, the U.N. General Assembly adopted Resolution A/RES/65/299.
Through this Resolution, the General Assembly condemned the actions of Tangoon and
recommended that States in coordination with Samutra employ all necessary means to deliver
humanitarian aid to the people of Tangoon. In passing this resolution, the General Assembly
pointed to its uniting for peace authority and the responsibility to protect doctrine. Pursuant to
the General Assemblys recommendation, Canada intervened in Tangoon on June 3, 2011.
On June 7, 2011, Canadian commandos employed explosives to demolish the wall
separating Tangoon and Samutra. In an attempt to distribute food, clothing, medicine, and
temporary shelters to survivors, Canada entered with 120 armed Canadian commandos
accompanying 500 medical and relief workers in 100 appropriately marked aid trucks. Upon
breaking through the barricade, Tangoon security personnel fired upon the Canadian forces.
Canada returned fire and ultimately took seven security personnel into custody including Ishmael
Balthasar and his incriminating diary. After a brief period, Canadian commandos came upon a
blasting and excavation operation in Demonville belonging to Geomin Corp. Upon discovering
teenage Tangoon workers suffering from conditions of slave-labor, Canadian commandos shut
down the operation. After confirming the identity of Clyde Barrett and his involvement in the
operation, commandos took him into custody and transported Ishmael Balthasar and him to their
ship, the HMCS Algonuin, docked at the Port of Samutra.
ix

SUMMARY OF ARGUMENT
The Tangoon regime took advantage of a natural disaster. In doing so, Tangoon
perpetrated an intentional biological attack on both its people and the people of neighboring
Samutra. Canadas actions were performed at the requests of the General Assembly and
Samutra, and were consistent with international law.
Canadas intervention into Tangoon was lawful under Article 51 of the U.N. Charter and
the inherent right of collective self defense. Specifically, Canada exercised its inherent right to
defend Samutra from a purposeful biological assault on its territory and citizens. Additionally,
Canadas intervention was lawful under the General Assemblys recommendation to intervene as
contained in Resolution A/RES/65/299, which was adopted under its Uniting for Peace
authority and the responsibility to protect doctrine.
Canadas apprehension, detention and proposed surrender to the ICC of Ishmael
Balthasar and Clyde Barrett are lawful under international law because of the grave nature of the
crimes they committed. Both Ishmael Balthasar and Clyde Barrett committed genocide as well
as crimes against humanity. Accordingly, these men are subject to jurisdiction because of both
the territorial jurisdiction of Samutra to submit the situation to the ICC prosecutor and the
customary international law principle of universal jurisdiction present in the Rome Statute,
Genocide Convention, and Canadas War Crimes and Crimes Against Humanity Act. The use
of military force to arrest and detain Balthasar and Barrett was lawful because there are no
conventions that indicate it is a violation of international law. In addition, historical practices
demonstrate that military force is the most effective method for bringing perpetrators of genocide
and crimes against humanity to justice. No immunities exist for either individual because de

facto head-of-state immunity is insufficient and any immunity is prohibited by the Genocide
Convention and Rome Statute.
ARGUMENT
I.

CANADAS INTERVENTION INTO TANGOON WAS LAWFUL UNDER INTERNATIONAL

LAW.
Generally, traditional international law prohibits States from using force against other

States 1 or intervening in the internal affairs of other States. 2 Despite these general prohibitions,
there are legal exceptions that are either recognized as customary international law or are
emerging legal norms that this Court should recognize as customary international law. When
met, these exceptions justify the use of force and intervention. 3 Two such justifications are
known as the right of collective self-defence 4 and the responsibility to protect doctrine. 5
Canadas intervention into Tangoon was lawful for two reasons. First, Canadas actions
were consistent with Article 51 of the U.N. Charter and the inherent right of collective self
defense. Specifically, Canada intervened at the request of Samutra with the expressed and
limited purpose of defending Samutra from a purposeful biological assault on its territory and
citizens by the Tangoon Regime. 6 Second, Canadas actions were consistent with the General

U.N. Charter art. 2, 4; see MALCOLM N. SHAW, INTERNATIONAL LAW 1123 (Cambridge
University Press, 6th ed. 2008).
2

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14,
106, 202 (June 27) [hereinafter Nicaragua Case].
3

See SHAW, supra note 1, at 1121-22, 1131-35, 1155-58.

U.N. Charter, supra note 1, at art. 51.

See 2005 World Summit Outcome, G.A. Res. 60/1, U.N. Doc. A/RES/60/1, at 138-39 (Oct.
24, 2005) [Hereinafter 2005 World Summit Outcome Document].
6

Compromis, 16, Tab 3.

2

Assemblys recommendation to intervene as contained in Resolution A/RES/65/299, which was

adopted under its Uniting for Peace authority and the responsibility to protect doctrine. 7
A.

CANADAS INTERVENTION WAS LAWFULLY CONSISTENT WITH SAMUTRAS REQUEST

FOR ASSISTANCE UNDER ARTICLE 51 OF THE U.N. CHARTER.
Article 51 of the U.N. charter provides that Nothing in the present Charter shall impair

the inherent right of collective self-defense if an armed attack occurs against a member of the
United Nations. 8 In the Nicaragua Case, this Court recognized the right of a State to use
collective self-defense as customary law. 9 This Court further recognized the right of a third State
to use collective self-defense for the benefit of a victim State. 10
In 1841, the U.S. Secretary of State famously defined self-defense subsequent to the
incident that later became known as the Caroline Case. 11 For a State to act in self-defense there
needed to be a necessity of self-defense that was instant, overwhelming, leaving no choice of
means, and no moment for deliberation. 12 Furthermore, the action taken in pursuance of selfdefense must be limited by that necessity and not unreasonable or excessive. 13 These
essentials of self-defense have been accepted as customary international law. 14

Id. at 15, Tab 2-3.

U.N. Charter, supra note 1, at art. 51.

Nicaragua Case, supra note 2, at 126, 246; SHAW, supra note 1, at 1146-47.

10

Nicaragua Case, supra note 2, at 104-05, 196-98; see North Atlantic Treaty art. 5, Apr. 4
1949, 63 Stat. 2241, 34 U.N.T.S. 243.
11

SHAW, supra note 1, at 1131; see R.Y. Jennings, The Caroline and McLeod Cases, 32 Am. J.
Int'l L. 82 (1938).
12

SHAW, supra note 1, at 1131.

13

Id.

14

Id.
3

It was later clarified by this Court that in order for a State to resort to the use force in selfdefense, it must be able to demonstrate that it has been the victim of an intentional, armed
attack. 15 Furthermore, in order for a State to exercise its right of collective self-defense for the
benefit of a victim State, the victim State must have made a declaration that it was the victim of
an armed attack and that it requested assistance. 16
This Court noted in the Nicaragua Case that There appears now to be general agreement
on the nature of the acts which can be treated as constituting armed attacks. 17 Furthermore, in
establishing what constitutes an armed attack, this Court relied on Article 3 of the Definition of
Aggression annexed to General Assembly resolution 3314 (XXIX) as a reflection of customary
international law. 18 The resolution states, in part, that the use of any weapons by a State against
the territory of another State qualifies as an act of aggression. 19 Furthermore, biological
weapons and biological war tactics (such the practice of poisoning a States water supply) have
historically been recognized as acts of aggression. 20
In the present case, Samutra was able to demonstrate that it had been the victim of an
intentional biological attack. While it is true that the Tangoon regime did not cause the cyclone,

15

Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 189, 195, 57, 71 (Nov. 6); SHAW, supra note
1, at 1133.

16

Nicaragua Case, supra note 2, at 103, 195.

17

Id.

18

Id.

19

G.A. Res. 3314 (XXIX), U.N. GAOR, 29th Sess., Supp. No. 31, art. 3(b) U.N. Doc. A/9631
(Dec. 14, 1974).
20

See The Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its
Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October
1907.
4

it is also true that the regime took advantage of the resulting devastation. 21 The Tangoon regime
intentionally left thousands of rotting corpses in its lakes, rivers and streams knowing that the
contaminated water would cause illness among its people and the people of Samutra. 22 The
regime did so with the purpose of cleansing the island of those who did not adhere to the ultraorthodox form of the Tanmutran religion. 23
Shortly after Samutra made this discovery, it requested assistance from the Security
Council on June 1, 2011; from the General Assembly on June 2, 2011, and finally from Canada
on date June 3, 2011. 24 On June 7, 2011, Canada answered Samutras calls for help by
intervening in Tangoon. 25 Canadas immediate intervention was absolutely necessary due to the
rapid spread of disease and the expectation that thousands more would die unless immediate
action was taken. 26 Finally, in addition to being necessary, Canadas intervention was limited by
that necessity and was not unreasonable or excessive. Canada entered Tangoon with the limited
purpose of disposing of the decomposing corpses and providing humanitarian aid. 27
B.

CANADAS INTERVENTION WAS LAWFUL BECAUSE IT WAS DONE PURSUANT TO THE

GENERAL ASSEMBLYS AUTHORIZATION TO INTERVENE, WHICH WAS ADOPTED
UNDER ITS UNITING FOR PEACE AUTHORITY AND THE RESPONSIBILITY TO
PROTECT DOCTRINE.

21

See Compromis at 10, 12, Tab 1.

22

See Id. at Tab 1.

23

Id.

24

See Id. at 12-16.

25

Id. at 17.

26

Id. at 12.

27

Id. at Tab 3.
5

Under the U.N. Charter, the Security Council has the primary responsibility for the
maintenance of international peace and security. 28 Specifically, the Security Council may take
such action by air, sea, or land forces as may be necessary to maintain or restore international
peace and security. 29 A decision by the Security Council to authorize the use force must be
made by an affirmative vote of nine members including the concurring votes of the [five]
permanent members. 30 Any one of the five permanent members may vote down a proposed
resolution authorizing the use of force. 31
It was largely the use of this veto power by the permanent members that led to a
perception of the reduced effectiveness of the Security Council. 32 This perception led the
General Assembly to adopt the Uniting for Peace resolution, which was based on the view that
the General Assembly had a secondary responsibility for the maintenance of peace and
security. 33 On November of 1950, the General Assembly adopted Resolution 377(V). 34 The
Resolution states:
if the Security Council, because of lack of unanimity of the
permanent members, fails to exercise its primary responsibility for
the maintenance of international peace and security in any case
where there appears to be a threat to the peace, breech of the peace,
or act of aggression, the General Assembly shall consider the
matter immediately with a view to making appropriate
28

U.N. Charter, supra note 1, at arts. 23-25, 28, 39, 42.

29

Id. at art. 42.

30

Id. at art. 27 (3).

31

Id.

32

SHAW, supra note 1, at 1271.

33

Id. at 1272.

34

G.A. Res. 377(V), U.N. Doc. A/1775 (Nov. 3, 1950).

6

recommendations to Members for collective measures, including in

the case of a breach of the peace or act of aggression the use of
armed force when necessary, to maintain or restore international
peace and security. 35
In the present case, France introduced a resolution to the Security Council, 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 to take steps to prevent the spread of
disease from decomposing corpses. 36 Because the U.S. indicated that it would veto the
resolution, the Security Council adjourned. 37 Because of a lack of unanimity among the
permanent members, the Security Council failed to exercise its primary responsibility for the
maintenance of international peace and security. In response to this failure, the General
Assembly called an emergency special session and adopted Resolution A/RES/65/299 by an
overwhelming vote of 157 in favor, 3 against and 30 abstentions. 38
In addition to its Uniting for Peace authority, the General Assembly adopted
Resolution A/RES/65/299 under the responsibility to protect doctrine. 39 The responsibility to
protect doctrine embodies the idea that sovereign states have a responsibility to protect their
own citizens from avoidable catastrophefrom mass murder and rape, from starvationbut that
when they are unwilling or unable to do so, that responsibility must be borne by the broader

35

Id.

36

Compromis at 14.

37

Id.

38

Id. at 15.

39

Id. at Tab 2.
7

community of states. 40 Tangoon failed its responsibility to protect its people. Whether the
emerging norm known as the responsibility to protect is customary international law is an issue
of first impression before this Court.
1.

THIS COURT SHOULD RECOGNIZE THE RESPONSIBILITY TO PROTECT DOCTRINE AS

CUSTOMARY INTERNATIONAL LAW.
A rule of international law may be one that has been accepted by the international

community of states in the form of customary law, which results from [1] a general and
consistent practice of states followed by them from [2] a sense of legal obligation. 41 The
practice of states may include diplomatic acts and instructions as well as public measures
and official statements of policy. 42 In order for a practice to be considered customary law, it
must be general and consistent, meaning the practice reflects a wide acceptance among the
states particularly involved in the relevant activity. 43 Furthermore, for a practice to become
customary international law, it must appear that the states follow the practice from a sense of
legal obligation (opinio juris sive necessitatis). 44
The responsibility to protect doctrine is a widely accepted emerging norm. 45 The
responsibility to protect doctrine was first articulated in the 2001 Responsibility to Protect

40

Intl Commn on Intervention and State Sovereignty, The Responsibility to Protect: Report of
the International Commission on Intervention and State Sovereignty, at VIII (2001) [hereinafter
2001 Responsibility to Protect Report].
41

Restatement (Third) of Foreign Relations 102 (1987).

42

Id. at cmt. b.

43

Id. at cmt. b.

44

Id. at cmt. c.

45

A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats,
Challenges and Change, UN Doc. A/59/565 (2004) [hereinafter 2004 High-level Panel Report].
8

Report by The International Commission on Intervention and State Sovereignty. 46 In 2004, the
responsibility to protect doctrine was the subject of discussion in the UN High Level Panel on
Threats, Challenges and Change. 47 The Report of the High-Level Panel noted a growing
acceptance among the international community that when Governments, which have the
primary responsibility to protect their own citizens, are unable or unwilling do so, that
responsibility should be taken up by the wider international community. 48 In March of 2005,
Secretary General issued a report, which embraced the growing norm of a collective
responsibility to protect. 49 In September of that same year, the responsibility to protect doctrine
was articulated and accepted in the World Summit Outcome Document. 50 Finally, in 2006, the
Security Council reaffirmed the responsibility to protect doctrine in resolution 1674. 51
2.

CANADAS ACTIONS WERE CONSISTENT WITH THE RESPONSIBILITY TO PROTECT

DOCTRINE.
The 2001 Responsibility to Protect Report Just Cause and the 2004 High-Level Panel

Report articulated roughly five criteria of legitimacy for interventions and the use of force: (1)
just cause; (2) and proper purpose; (3) last resort; (4) proportional means; and (5) a reasonable

46

2001 Responsibility to Protect Report, supra note 40, at VIII.

47

2004 High-level Panel Report, supra note 45, at 201-202.

48

Id.; see Carsten Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?,
101 A.J.I.L. 99, 99-100 (Jan. 2007).
49

In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the
Secretary-General, UN Doc. A/59/2005, 16-22 (2005).
50

2005 World Summit Outcome, GA Res. 60/1, U.N. Doc. A/RES/60/1, at 138-39 (Oct. 24,
2005).
51

SC Res. 1674, 4 (Apr. 28, 2006).

9

prospect of success. 52 Canadas intervention was justified and was done with the proper purpose
to avert the threat of a widespread disease. Furthermore, Canadas intervention was small in
scale and only had a reasonable likelihood of because of the seriousness of Tangoons actions.
II.

CANADAS APPREHENSION, DETENTION, AND PROPOSED SURRENDER TO THE ICC OF

ISHMAEL BALTHASAR AND CLYDE BARRETT ARE LAWFUL UNDER INTERNATIONAL
LAW.
Using the International Criminal Courts definitions of genocide and crimes against

humanity, both Ishmael Balthasar and Clyde Barrett have committed these heinous crimes.
Accordingly, Canada is lawful under international law in bringing these individuals to justice on
the customary international law principle of universal jurisdiction present in the Rome Statute of
the International Criminal Court (ICC), the Genocide Convention, and Canadas own Crimes
Against Humanity and War Crimes Act. There should be no applicable head-of-state immunity
because the Genocide Convention and Rome Statute specifically prohibit the defense and a de
facto leader does not enjoy this protection.
A.

ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED HEINOUS INTERNATIONAL

CRIMES OF GENOCIDE AND CRIMES AGAINST HUMANITY.

1.

ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED THE CRIME OF GENOCIDE.

The definition for genocide provided by the Rome Statute of the ICC provides the best

definition because of its broad international acceptance. Article 6 defines genocide to mean any
of the following acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group. 53 Acts covered by the definition include both killing members of the

52

Responsibility to Protect Report, supra note 40, at 4.32-4.43; 2004 High-level Panel
Report, supra note 45, at 201-202.
53

Rome Statute of the International Criminal Court art. 6, July 17, 1998, 2187 U.N.T.S. 3
[hereinafter Rome Statute].
10

group as well as deliberately inflicting conditions calculated to bring about physical destruction
of the group.

54

The religious group targeted by Balthasar and Barrett were the non-elites of

Tangoon who are subjected to some of the worst living conditions on the planet while the elites
live in lavish mountain-top temple compounds. 55
Balthasar and Barrett affirmatively acted in two ways that constitute the commission of
genocide. First, they conspired together to concoct a plan to rid of non-elites living in the town
of Demonville. 56 Barrett encouraged Balthasar to forcibly relocate these non-elites through
burning them out if necessary with the promise of increased license fees to the Tangoon
regime. 57 Balthasar agreed to their plan and demonstrated his specific intent to commit genocide
by stating he would get rid of those godless villagers. 58 Following through on their intentions,
Tangoon authorities did nothing to notify the Tangoon civilian population of the imminent
danger posed by a severe tropical cyclone that ultimately left tens of thousands of corpses. 59
Second, Balthasar and Barrett ensured their genocidal rampage would continue by denying all
aid offered. 60
2.

ISHMAEL BALTHASAR AND CLYDE BARRETT COMMITTED CRIMES AGAINST

HUMANITY.

54

Id.

55

Compromis, at 7.

56

Id. at 10.

57

Id.

58

Id.

59

Id at 11-12.

60

Id at 12.
11

Article 7 of the Rome Statute defines crimes against humanity as any of the following
acts when committed as part of a widespread or systematic attack directed against any civilian
population. 61 Acts covered include enslavement and extermination which includes the
intentional infliction of life conditions that would bring about destruction of part of a
population. 62 Balthasar and Barrett have committed both of these acts by fostering conditions of
slave labor and willfully refusing to make the civilian population aware of the cyclone that
would bring about the destruction of a substantial part of the population. 63
B.

CANADA LAWFULLY EXERCISED JURISDICTION TO PUNISH PERPETRATORS OF

CRIMES AGAINST HUMANITY AND GENOCIDE.

1.

MILITARY FORCE WAS LAWFUL TO FACILITATE THE ARREST AND DETENTION OF

ISHMAEL BALTHASAR AND CLYDE BARRETT.
According to the Restatement of Foreign Relations, none of the international human

rights conventions to dateprovides that forcible abduction or irregular extradition is a violation

of international human rights law. 64 It may be argued that extra-territorial is in violation of the
International Covenant on Civil and Political Rights (ICCPR). 65. This argument falls short
because that convention specifically protects against arbitrary arrest or detention. 66 Canada
has not made an arbitrary arrest or detention because they discovered teenage Tangoon workers

61

Rome Statute, supra note 53, art. 7.

62

Id.

63

Compromis at 11-12.

64

Restatement (Third) of Foreign Relations Law of the United States, 432 (1987).

65

International Covenant on Civil and Political Rights art. 9(1), Dec. 16, 1966, 999 U.N.T.S. 171
[hereinafter ICCPR].
66

Id.
12

engaged in excavation suffering from conditions of slave-labor. 67 Further, ensuring they werent
arresting the wrong individuals, they verified the identity and authority of Clyde Barrett as well
as Ishmael Balthasar. 68
In addition, Tangoon was in direct violation of their duties under Article 8 of the ICCPR
by requiring compulsory labor of children in its National Service Program. 69 This willful
disregard and failure to correct the violation justifies the actions of Canada. The Restatement of
Foreign Relations clarifies, how a state treats individual human beings, including its own
citizens, in respect of their human rights, is not the states own business alonebut is a matter of
international concern. 70 Article 5 of the ICCPR makes it clear that nothing in the convention
can be interpreted as implying any right to engage in any activity aimed at the destruction of the
rights recognized.

71

Because Tangoon was destroying recognizable rights under the ICCPR, the

international concern presented by conditions clearly demonstrating slave-labor justifies the

arrest and detention of responsible individuals.
Prior history shows that in cases of grave international concern, there are sometimes no
other measures capable of promoting justice. In respect to the atrocities in the former
Yugoslavia, statistics show that twenty-one out of forty-six indictees in the custody of the
International Criminal Tribunal for the former Yugoslavia were detained by international

67

Compromis at 19.

68

Id. at 18-19.

69

IICPR, supra note 65, art. 8(3)(a).

70

Restatement (Third) of Foreign Relations Law of the United States, part VII, intro. note
(1987).
71

IICPR, supra note 65, art. 5.

13

military forces. 72 Several NGOs have criticized the Tangoon court system for its lack of
independence from regime leaders which demonstrates that the only method for bringing these
individuals to justice was the use of military force to arrest and detain. 73
2.

THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER ISHMAEL

BALTHASAR AND CLYDE BARRETT.
The first basis upon which the ICC has jurisdiction over these individuals is through the

customary international law principle of universal jurisdiction. Universal jurisdiction provides

jurisdiction over a limited category of offenses that are recognized as a universal concern without
regard to the location of the offense, the nationality of the perpetrator, or the nationality of the
victim. 74 This principle is recognized in the pre-amble to the Rome Statute of the ICC where it
is made clear that such grave crimes threaten the peace, security, and well-being of the world.
75

Further, the pre-amble claims it is the duty of every State to exercise its criminal jurisdiction

over those responsible for international crimes. 76 Both of these statements demonstrate that
historically the ICC has been recognized as a body exercising universal jurisdiction over certain
crimes. In fact, no one at the Rome Diplomatic Conference disputed that the core crimes under
ICC jurisdiction were subject to the customary international law principle of universal

72

Annie Wartanian, The ICC Prosecutors Battlefield: Combating Atrocities While Fighting for
States Cooperation Lessons from the U.N. Tribunals Applied to the Case of Uganda, 36 Geo. J.
Intl L. 1289, 1309 (2005).
73

Compromis at 7.

74

Michael P. Scharf, The ICCs Jursidiction Over the Nationals of Non-Party States: A Critique
of the U.S. Position, 64-WTR Law & Contemp. Probs. 67, 74 (2001).
75

Rome Statute, supra 53, pre-amble.

76

Id.
14

jurisdiction. 77 Several trials carried out in the aftermath of the Second World War for atrocities
committed extended and demonstrated that international tribunals could exercise universal
jurisdiction for crimes against humanity. 78 Because of the gravity of the genocide and crimes
against humanity committed by Ishmael Balthasar and Clyde Barrett, they should be subject to
the universal jurisdiction of the ICC as embodied in its pre-amble.
Beyond the universal jurisdiction provided to the ICC, there is also territorial jurisdiction
granted by Articles 13 and 14 of the Rome Statute. Article 14 allows any state that is party to the
Rome Statute to refer to the Prosecutor a situation in which one or more crimes within the
jurisdiction of the Court appear to have been committed. 79 The ICC, then, may exercise
jurisdiction over that referral under Article 13(a). 80 This exercise of jurisdiction, however is
limited by Article 12(2)(a) in that jurisdiction if only appropriately exercised if The State on the
territory of which the conduct in question occurred is a party to the ICC. 81 Here, these
requirements are met because Samutra, a party to the Rome Statute of the ICC referred the
situation to the ICC prosecutor and the crimes against humanity occurred on both the territory of
Tangoon and Samutra killing citizens of both nations with widespread disease.
3.

THE GENOCIDE CONVENTION PROVIDES UNIVERSAL JURISDICTION.

77

Scharf, supra note 74, at 77.

78

Id., at 81.

79

Rome Statute, supra note 53, art 14.

80

Rome Statute, supra note 53, art.13.

81

Rome Statute, supra note 53, art. 12.

15

Universal jurisdiction can also be found on the basis of the Genocide Convention, which
Tangoon is a party to. 82 As a party to the convention, under Article 1, Tangoon confirms that
genocide, whether committed in time of peace or in time of war, is a crime under international
law which they undertake to prevent and to punish. 83 The Genocide Convention explicitly
states that the actions taken by Ishmael Balthasar and Clyde Barrett, while too late for
prevention, are to be punished. Article V of the convention further stipulates that parties are
obligated to provide effective penalties for persons guilty of genocide. 84 In this situation,
Tangoon has utterly failed at following its obligations under the Genocide Convention.

As provided by Article I, all parties to the convention which includes Canada, must
undertake to punish the crime of genocide. As previously noted, Tangoon courts are in no
position to effectively punish these perpetrators of genocide because of their lack of
independence from the ruling regime. Thereby, it is the obligation of Canada and all other states
to punish Ishmael Balthasar and Clyde Barrett for their heinous crime and Canada may exercise
its jurisdiction.
4.

CANADAS OWN LEGISLATION PROVIDES UNIVERSAL JURISDICTION.

Genocide and crimes against humanity have been characterized as crimes that allow for

universal jurisdiction which means that any state has jurisdiction to define and prescribe
punishment for those crimes. 85 Canada has passed its own legislation that grants universal
82

Compromis at 4.

83

Convention on the Prevention and Punishment of the Crime of Genocide art. I, Dec. 9, 1948,
78 U.N.T.S. 277 [hereinafter Genocide Convention].
84

Id. at art. V.

85

Restatement (Third) of Foreign Relations Law of the United States, 404 (1987).
16

jurisdiction and implement(s) the Rome Statute of the International Criminal Court. 86 Named
the Crimes Against Humanity and War Crimes Act, section 6 provides that every person
whocommits outside Canada, (a) genocide, (b) a crime against humanityis guilty of an
indictable offence. 87 Section 8 provides that person may be prosecuted for that offence if at the
time of offence the person was a citizen of a state that was engaged in an armed conflict against
Canada or was employed in a civilian capacity by such a state. 88 When Canada intervened,
Tangoon security personnel opened fire on Canadian forces. 89 This conflict amounts to an
armed conflict under the Crimes Against Humanity and War Crimes Act and brings both Ishmael
Balthasar and Clyde Barrett under the jurisdiction of Canada, where they then may direct the
surrender to the ICC.
C.

THERE IS NO HEAD-OF-STATE IMMUNITY AVAILABLE FOR ISHMAEL BALTHASAR.

1.

ISHMAEL BALTHASAR DOES NOT HOLD A TITLE ANALOGOUS TO HEAD OF STATE.

In customary international law, immunities are sometimes granted to heads of state to

ensure the effective performance of their functions. 90 These immunities can extend to heads of
states, diplomatic agents, and ministers of foreign affairs. 91 However, the immunities do not
extend to Ishmael Balthasar because he holds none of those titles. Instead, Ishmael Balthasar

86

Crimes Against Humanity and War Crimes Act, pre-amble, S.C. 2000, c. 24 (Can.).

87

Id. at 6.

88

Id. at 8.

89

Compromis at 18.

90

The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.

Belgium), 2002 I.C.J. Rep. 3 at 49.
91

Id. at 47.
17

holds the title of Minister of Internal Affairs. 92 It could be argued that Balthasar was acting as
the de facto head of state, but this argument should not provide him immunity. The United
States has explicitly rejected the argument that a de facto leader can be subject to head-of-state
immunity because other States dont necessarily recognize a de factor leader. 93
2.

BOTH THE ICC AND GENOCIDE CONVENTION EXPLICITLY PROHIBIT HEAD-OF-STATE

IMMUNITY.
A definitive reason that there should be no head-of-state immunity granted in this

situation is that both the Rome Statute and Genocide Convention explicitly prohibit its
application. First, article 27 of the Rome Statute indicates it applies equally to all persons
without any distinction based on official capacityofficial capacity as a Head of Stateshall in
no case exempt a person from criminal responsibility. 94 The language of the Rome Staute
clearly articulates that certain immunities claimed by government officials is not meant to apply
because of the gravity of the crimes under its jurisdiction. The same underlying rationale is
declared in article IV of the Genocide Convention, plainly stating persons committing
genocideshall be punished, whether they are constitutionally responsible rulers, public
officials or private individuals. 95 Even if the head of state immunity would apply to either
individual, it is not an available immunity with respect to these crimes.
CONCLUSION
The Tangoon regime took advantage of a natural disaster. It intentionally failed to warn
its people about the oncoming cyclone. It refused all offers of humanitarian assistance, in spite
92

Compromis at 7.

93

U.S. v. Noriega, 117 F.3d 1206, 1211-12 (11th Cir. 1997).

94

Rome Statute, supra note 53, art. 27.

95

Genocide Convention, supra note 83, art. IV.

18

of its peoples pressing and desperate need for food, water and medical attention. It enslaved
many of its people. It chose not to dispose of thousands of diseased corpses, which were
contaminating the water supply of both Tangoon and neighboring Samutra.
Canadas actions were consistent with international law. Canadas intervened at
Samutras request and pursuant to its inherent right to defend other States from armed attacks.
Additionally, Canadas intervention was lawful because it was authorized by the General
Assembly pursuant to its Uniting for Peace authority and the responsibility to protect doctrine,
which this Court should recognize as customary international law. Furthermore, Canadas
subsequent apprehension, detention and surrender to the ICC of Ishmael Balthasar and Clyde
Barrett were consistent with international law because of the universal jurisdiction applicable to
the grave crimes committed by both men. The apprehension and detention of Clyde Barrett and
Ishmael Balthasar were lawful under international law because it is a historically accepted
practice to use military force and does not violate any current international law. These men are
subject to no immunities for their actions because they are prohibited from doing so by the
Genocide Convention and the Rome Statute of the ICC. Canada respectfully requests this Court
to recognize Canadas actions as fully consistent with international law.
Respectfully Submitted,
Agents for Canada, 2012-07R

19