CLEA Moot, 2016 - Best Memo - Respondent

Memorial for United Republic of ASIAN

IN

Team Code: CLEA003

THE

INTERNATIONAL COURT

OF

JUSTICE

AT THE PEACE PALACE, THE HAGUE THE NETHERLANDS United Republic of ASIAN/ Re public of Andorra (Applicant)

(Respondent)

Memorial for the Respondent -United Republic of ASIAN-

CLEA (Asia-India) Mooting Competition 2016


Team Code: CLEA003

TABLE OF CONTENTS I NDEX OF ABBREVIATIONS .......................................... ................................................................. ............................................. ......................................... ................... 2

I NDEX OF AUTHORITIES ........................................... ................................................................. ............................................ ............................................. .......................3

STATEMENT OF JURISDICTION ......................................... ............................................................... ............................................ ...................................... ................ 7

STATEMENT OF FACTS ............................................. ................................................................... ............................................ ............................................. .......................8

QUESTIONS PRESENTED ........................................... ................................................................. ............................................ ........................................... .....................11 11

SUMMARY OF PLEADINGS ........................................... .................................................................. ............................................. ....................................... .................12

ARGUMENTS ADVANCED ............................................ ................................................................... ............................................. ....................................... ................. 15 I.

The Prosecution Prosecution of Mr. TTK Ganzard in URA is not in violation of United Nations Nations

Convention against Transnational Organized Crime .......................................... ........................................................... ................. 15 II. Mr. TTK Ganzard does not enjoy immunity from the jurisdiction of United Republic of ASIAN. ............................................ .................................................................. ............................................ ............................................ .................................... ..............30 III.

It is not a diplomatic mission because the act of doing so ignores various provisions

of the Vienna Vienn a Convention Conv ention of Diplomatic relations .............................. .................................................... ................................ .......... 35 IV.

Even if there was violation of diplomatic immunity, immunity, Andorra cannot claim any

damages for the same. .......................... ................................................ ............................................ ............................................ .................................... .............. 39 CONCLUSION ............................................. ................................................................... ............................................ ............................................ .................................... .............. 42

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INDEX OF ABBREVIATIONS ¶

Paragrph

Art.

Article

H.R.

Human Rights

URA

United Republic of ASIAN

RoA

Republic of Andorra

ICJ

International Court of Justice

U.N.I.C.E.F.

United Nations Children’s Fund

U.N.E.S.C.O.

United Nations Educational, Scientific and Cultural Organiszation

U.N.C.T.O.C.

United

Nations

Convention

on

Transnational Organised Crime I.C.T.R.

International Crimina Tribunal for Rawanda

I.L.C.

International Law Commission

P.C.I.J.

Permanent Court of International Justice

U.N.C.A.C.

United

Nations

Convention

Against

Corruption U.N.S.C.

United Nations Security Council

U.N.G.A.

United Nations General Assembly

V.C.D.R.

Vienna Convention on Diplomatic Relations

V.C.C.R.

Vienna Convention on Consular Relations

V.C.L.T.

Vienna Convention on law of Treaties

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INDEX OF AUTHORITIES Treaties and Conventions

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Adopted on Januray 24, 1988). ............................................ ................................................................... ............................ ..... 16 United Nations Convention against Transnational Organized Crime (Adopted on November 15, 2000). ............................................. ................................................................... ............................................ ............................................ .................................... .............. 15 Rome Statute of o f the International Inter national Criminal Court, (Adopted on July 17, 1988). ....................17 Tretises and Commentaries

David McClean, TRANSNATIONAL ORGANIZED CRIME: A COMMENTARY

ON THE

UN

CONVENTION AND ITS PROTOCOLS, 57, 1st edn., (2007). .................................................... ...................................................... .. 16 El Zeidy, THE PRINCIPLE OF COMPLEMENTARITY

IN I NTERNATIONAL NTERNATIONAL

CRIMINAL LAW: ORIGIN,

DEVELOPMENT AND PRACTICE , 157, 2nd edn., (2007) .......................................... ........................................................... .................17 H. Fox and P. Webb, The Law of State Immunity, 549-560 (3rd edn., 2013). ........................ ........................ 31 J.M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law: Volume .................................................................. ............................ ..... 22 1 and 2, (Cambridge University Press 2005) ........................................... James Crawford, Brownlie’s Principles of Public International Law, 313, 8th edn., (2013). ..17 M. C. Bassiouni, ‘International Crimes, Jus Cogens and Obligatio Erga Omnes ’(1996) 59

.................................................................... ....................................... ................ 22 Law & Contemporary Contemporary Problems Problems 63. ............................................. th M. N. Shaw, I NTERNATIONAL .............................................. .....................29 NTERNATIONAL LAW, 697 (6 edn. Shaw, 2008). ......................... th Malcolm N. Shaw, I NTERNATIONAL ............................................. 26 NTERNATIONAL LAW, 82, 6 edn., ( 2008). .............................................

R. Peter, CHASING DIRTY MONEY, 113, 134 (2004). ............................................................ ............................................................... ... 19 S. D. Murphy et al, LITIGATING WAR : MASS CIVIL I NJURY

AND THE

ERITREA-ETHIOPIA

CLAIMS COMMISSION , 381 (2013). ............................................ ................................................................... ........................................... ....................38

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William Schabas, THE I NTERNATIONAL NTERNATIONAL CRIMINAL COURT: A COMMENTARY

ON THE

R OME OME

STATUTE, 101 – 102, 102, 2nd edn., (2010). ............................................ ................................................................... ....................................... ................ 23 Decisions of ICJ

(Arrest Warrant Case of 11 April 2000 [Democratic Republic of the Congo v Belgium] para. 52; ............................................. ................................................................... ............................................ ............................................ ............................................. ......................... .. 30 20 02 p 3, 81 (Judges (J udges Higgins, Kooijmans Kooij mans & Buergenthal)....... Buergenthal). ...... 21 Arrest Warrant Warrant , ICJ Reports 2002 Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.

20 08, at para. 170..................... 170 ........................................... ....................................... ................. 31 France), ICJ judgment of 4 June 2008, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Dissenting opinion of Judge Ad Hoc Van den Wyngaert, 2002, 134

(International Court of Justice). ....................................................... ............................................................................. .................................... .............. 25 Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, 1986, ICJ Reports, 14 (International

Court of Justice). .................................................... ........................................................................... .............................................. ....................................... ................ 16 S.S. Lotus (France v. Turkey) , Judgement, 1927, PCIJ Reports, 10 (Permanent Court of

International Justice). ...................................... ............................................................ ............................................ ................................... ............. 17, 22, 27 United States v Iran , Judgment, (1980) ICJ Reporter, 17 (International Court of Justice). .... 37 Other Decisions A-G Israel v Eichmann, Supreme Court Judgment of 29 May 1962, (1968) 36 International International

................................................... ............................................ ........................................... .....................21 Law Reports 304, para 12 (e). ............................. Enrica Lexie Case, 2012. .............................................................. .................................................................................... ........................................... .....................33 ................................................... ......... 39 Eritrea’s Diplomatic Claim, Final Award, 2009 (para 114). .......................................... ................................................... ......... 39 Eritrea’s Diplomatic Claim, Partial Award, 2007 (para 36). .......................................... ................................................................. .....................40 Ethiopia’s Port Claim, Final Claim, 2005 (para 6). ............................................

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Federal Republic of Germany v. Miltiadis Margellos, Case 6/17-9-2002 (Greece: Special Supreme Court, 2002). ............................................... ..................................................................... ............................................ .................................... .............. 38 Ferrini v. Repubblica Federale di Germania, 87 RDI (2004) 539 (Italy: Cassazione), at paras 7 and 8.2. .......................................... ................................................................. ............................................. ............................................ ....................................... ................. 38 ........................... 40 Final Award, Ethiopia’s Damages Claims, 2009 (para 226, An nexure 16). ........................... Greek Citizens v. Federal Republic of Germany (The Distomo Massacre Case), 42 ILM (2003) 1030 (Germany: (Ger many: Sup. Sup . Ct, 2003), at 1033. ............................................... ................................................................ ................. 39 Hullett v The King Kin g o off Spain (1828). ...................................... ............................................................ ............................................. ............................ ..... 33 National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another [2014] [ 2014] ZACC 10. ............................................... .................................................... ..... 17 Proscutor v Stakic , Case No. IT-94-1-T (September 2, 1999) (International Criminal Tribunal

of Rwanda)............................................................. ................................................................................... ............................................. ....................................... .................24 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 581 (Sept ( Sept 2, 1998). 1998) . .................22 Prosecutor v. Bisengimana, ¶ 125-26, ( May 21, 1999) (International Criminal Tribunal for

Rwanda). .......................................... ................................................................. ............................................. ............................................ ....................................... ................. 24 Prosecutor v. Kayishema and Others , Judgement, ¶ 127-29, ( May 21, 1999) (International

Criminal Tribunal for Rwanda). ........................................... ................................................................. ............................................ ......................... ... 24 Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment, ¶¶ 427 – 28 28 (June 12, 2002). ............................................ .................................................................. ............................................ ............................................ ........................................... .....................23 S v Basson [2005] ZACC 10. ............................................ .................................................................. ............................................ ................................ .......... 17 State Prosecutor v. G.G., 5 September Sept ember 1997............................. 1 997................................................... ............................................. ......................... .. 26 The Minister of Justice and Constitutional Development v. The South African Litigation Centre (867/15) (86 7/15) [2016] [ 2016] ZASCA (15 March 2016). 2016 ). ................................. ....................................................... ............................ ...... 32 USA v Wagner (1887) (18 87) LR 2 Ch App 582...................... 58 2............................................ ............................................. .................................... ............. 30 UN Resolution and Documents

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General Convention Conventi on on Privileges Priv ileges and Immunity of United Nations, 1946. 1 946. ........................... ........................... 31 United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004. ........................................... .................................................................. ............................................. ............................................ ............................................. ................................ ......... 30 Journal Articles Available

at

http://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-limits-on-

prosecution-of-corruption-related prosecution-of-cor ruption-related-money-laundering-b -money-laundering-by-foreign-officials y-foreign-officials/. /........................ ....................... 30 national Crimes? Developments in the Law on Prosecuting heads Foakes, ‘Immunity for Inter national of State in Foreign Courts’, CHATHAM HOUSE BRIEFING PAPER , November 2011 (IL BP

2011/2). ............................................ ................................................................... ............................................. ............................................ ....................................... ................. 30 Immunities of state officials, international crimes, and foreign domestic courts. European Journal of International Internatio nal Law Volume 21, No. 4, 2010, pp. pp . 815-852. 815-852 . .................................. .................................. 31 Sonja B. Starr, Extraordinary Extraordinary Crimes at Ordinary Ordinary Times: International International Justice Justice Beyond Crisis Crisis 101 (3), (2007). ....... 23 EVIEW, 101(3), Situations, 1304-1305, NORTH WESTERN U NIVERSITY LAW R EVIEW T. C. W. Lin, Financial Weapons of War , MINNESOTA LAW R EVIEW EVIEW (100), 1377, 1381 (2016). ........................................... ................................................................. ............................................ ............................................ ........................................... .....................19 Other International Regulations and Documents

European Parliament and Council Directive 2002/83/EC of 5 November 2002 concerning life insurance. ............................................. ................................................................... ............................................ ............................................ .................................... .............. 19 International Crimes and International Criminal Court Act, 2000. ......................................... ......................................... 26 Military Penal Code, Co de, Military Mil itary Court Cou rt of o f Cassation Cass ation ........................ .............................................. ........................................... .....................26 The Statute of the International Court of Justice, 1945. 194 5. .............................. .................................................... ............................ ...... 39 Vienna Convention on Diplomatic relations (1961). .......................................... ............................................................... .....................34 Miscellaneous

French prosecutors throw out Rumsfeld torture case, Reuters, November 23, 2007. ............. 31 6


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STATEMENT OF JURISDICTION The Republic of Andorra (Applicant) and the United Republic of ASIAN (Respondent), submit their dispute to the International Court of Justice under a Special Agreement pursuant to Article 36, Paragraph 1 of the ICJ.

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STATEMENT OF FACTS The United Republic of ASIAN (hereinafter URA) is a highly industrialised country. It is a permanent member of United Nations Security Securit y Council (UNSC). ( UNSC). On the other hand Republic of Andorra is a developing country. It is a small costal economy governed by Mr. TTK Ganzard, the president. He seized power over three decades ago from the democratically elected government in 1986, in a military coup. Since 1996, the country has been a constitutional democracy with Mr. Kian Ganzard as its president. However, elections in the past have been reported to be flawed and full of fraud. Further, the president of Andorra exercises almost total control over the political system of Andorra. Both these countries are founding members of United Nations, are parties to the Statute of the International Court of Justice and are parties to the Vienna Convention on Law of Treaties. International Civil Society and number of other NGOs working in the field of Human Rights have made various allegations against the regime of Mr. Kian Ganzard. It has been alleged that regime in Andorra is involved in Human Rights violations, suppressing dissent and maintain tight control over the country’s wealth. Further , due to such policies people of

Andorra have endured poverty, illiteracy and lead an abysmal life standards despite the remarkable economic growth of the Republic of Andorra. In 2007, son of Mr. Kian, Mr. TTK Ganzard was appointed as the second vice-president of the republic of Andorra. However, this post was not mentioned under the constitution of Republic of Andorra. Along with being the second vice-president, Mr. TTK Ganzard also held the portfolio of Defence and Strategic Administration. In 2007, a human rights group on behalf of Accountability International, URA brought about complaint against Mr. TTK Ganzard for money laundering and corruption. Based on this 8


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complaint investigating agency of URA undertook investigation and indicted Mr. TTK Ganzard of Money-laundering. Thereafter many assets privately owned by Mr. TTK Ganzard in URA were discovered. Subsequently, prosecuting agency of URA prepared a case against Mr. TTK Ganzard on charges including corruption, money-laundering and embezzlement of public funds. However, Mr. TTK Ganzard denied the charges and questioned the jurisdiction of Domestic courts of URA in the case. Meanwhile, he was appointed as Andorra’s Deputy Permanent Delegate to UNESCO, which in turn happened to have its headquarters in URA. It is further given that both URA and Andorra are parties and signatory to the United Nations Convention against Transnational and Organised Crime (UNCTOC) and are parties to the Vienna Convention on Diplomatic Relations (VCDR). Further, while Andorra is neither a party nor a signatory to the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing UNCTOC, URA has ratified all three protocols supplementing UNCTOC. In March, 2011 URA started the trial of case relating to Mr. TTK Ganzard before the competent court of URA. Meanwhile, Mr. TTK Ganzard sold his $50 million palatial House at 18, Rose Avenue to the Government of Andorra for an allegedly whooping sum of $310 million. Thereafter, Republic of Andorra through its communique dated 18/03/2011, conveyed URA that the said house will be used as diplomatic mission of Republic of Andorra. However, without considering the same, in the process of investigation, the police of URA has stormed into palatial House at 18, Rose Avenue and seized the same with other known properties of Mr. TTK Ganzard. The Republic of Andorra through its diplomatic note has registered strongest possible protest against the seizure. Andorra has further said that such

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seizure is unauthorized and illegal. Thereafter URA responded to Andorra through its communique dated 21/06/2011. In the year 2014, Mr. TTK Ganzard was appointed the vice-president of republic of Andorra. In December of the same year further allegations of dealing in illegal arms and ammunition manufacture and human trafficking for the same were levied against Mr. TTK Ganzard by another international NGO called Association for Trade against Arms. Thereafter there were a series of diplomatic exchanges and negotiations between the governments of two states. However the same failed. Presently both parties have agreed to submit these matters to the International Court of Justice.

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QUESTIONS PRESENTED I.

Does prosecution of Mr. TTK Ganzard in URA result in violation of provisions of United Nations Convention on Transnational Organized Crime?

II.

Is Mr. TTK Ganzard immune from jurisdiction of United Republic of ASIAN?

III.

Was it illegal on part of United Republic of ASIAN to search and seize diplomatic premises of Republic of Andorra? Ando rra?

IV.

Is United Republic of ASIAN liable to compensate Republic of Andorra for damages arising out of violation of diplomatic immunity?

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SUMMARY OF PLEADINGS I.

Prosecution of Mr. TTK Ganzard in URA does not result in violation of provisions of United Nations Convention on Transnational Organized Crime.

It is submitted that the prosecution of Mr. TTK Ganzard is not in violation of Article 4 of the UNCTOC, which talks about sovereign equality and non-intervention in the domestic affairs. The offence of money laundering is not a domestic affair of Andorra and the offence of corruption does not violate the complementarity principle. Furthermore, it is submitted URA has jurisdiction over the crimes committed by Mr. TTK Ganzard under UNCTOC. Since the offence of money laundering was committed in URA, it has territorial jurisdiction over this offence. With regards to offences of corruption, illegal manufacturing of arms and ammunitions and that of human trafficking, URA has universal jurisdiction. Universal jurisdiction can be used for crimes against humanity because these offences do not affect a particular nation but the entire international community as a whole. The offences above-stated are all crimes against humanity, hence jurisdiction on basis of universality can be established and exercised for all of them II.

Mr. TTK Ganzard is not immune from jurisdiction of United Republic of ASIAN.

Diplomatic immunity is a limited principle under Vienna Convention on Diplomatic Relations, 1961 and Vienna Convention on Consular relations, 1963. It is only provided to prescribe number of certain individuals indi viduals eligible for the same. In this case it is submitted that t hat Mr. TTK Ganzard does not have diplomatic immunity and subsequently URA can prosecute him. This is because his position as second vice-president was not constitutionally sanctioned. Further, he did not enjoy any immunity by virtue of holding portfolio of defense and security. Additionally, he only enjoys limited immunity as the deputy-permanent representative of Republic of Andorra to UNESCO. In fact, presuming but not conceding, 12


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even if Mr. TTK Ganzard enjoys immunity in any form, it will not be applicable in this case.

III.

It was not illegal on part of United Republic of ASIAN to search and seize diplomatic premises of Republic of Andorra.

There is only one broad procedure relating to the establishment of a diplomatic mission set out in the VCDR and therefore it is essential and cannot be violated. The setting up of a diplomatic mission by one country in another country’s land requires an essential element which is consent . The Vienna Convention of Diplomatic right’s has laid down a procedure and certain guiding principles which elucidate this requirement. The procedure of obtaining consent flows from Article 2 right on to Article 12 of the VCDR. It is submitted that the move by the Republic of Andorra to convert the property of Mr. Gandzard into a diplomatic mission by buying it and declaring it so is bad in law. This is so because it ignores various provisions of the Vienna Convention on Diplomatic rights as mentioned above and secondly, URA’s consent does not exist in any scenario as they are the prosecuting party

who want Mr. Gandzard to be investigated for.

IV.

Even if diplomatic immunity was violated, United Republic of ASIAN is not liable to compensate Republic of Andorra for damages arising out of violation of diplomatic immunity.

Under the Vienna Convention on Diplomatic Relations and as per the principle of customary law, violation of diplomatic immunity is an offence. In fact it is an offence by one sovereign against another. However, there are no provisions under statutes or customarily law that grant compensation under such circumstances. This is perhaps because one sovereign state cannot sue another state for damages. Further, satisfaction in the form of

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liability finding itself is the appropriate form of reparation for the proven violation of diplomatic law.

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ARGUMENTS ADVANCED I.

The Prosecution of Mr. TTK Ganzard in URA is not in violation of United Nations Convention against Transnational Organized Crime

It is submitted that the prosecution of Mr. TTK Ganzard is not in violation of UNCTOC because firstly, it is not in contravention of Article 4 of this Convention [A]. Secondly , URA has jurisdiction over the crimes committed by Mr. TTK Ganzard under UNCTOC [B].

[A]. Prosecution of TTK Ganzard is not in violation of Article 4 of UNCTOC

Article 4(1) of UNCTOC states that “States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States .”1 It is submitted that none of these principles are being violated firstly, the offence of

money laundering is not a domestic affair of Andorra [i] and secondly , the prosecution of Mr. TTK Ganzard with respect to corruption follows the complementarity principle [ii] and the [i]. OFFENCE OF MONEY LAUNDERING IS NOT A DOMESTIC AFFAIR OF A NDORRA This principle of non- intervention within the UNCTOC convention has been derived from paragraph 3 of Article 2 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Pyschotropic Substances (the Vienna Convention) of 1988.2 Article 4 of the

1

Art. 4, United Nations Convention against Transnational Organized Crime (Adopted on November 15, 2000). Art. 2, United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Adopted on Januray 24, 1988).

2

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convention is not applicable in purely domestic cases.3 Hence, it is submitted that prosecution relating to money laundering cannot be considered intervention in the domestic affairs of Republic of Andorra since it is not a purely domestic case. Mr. TTK Ganzard has used public funds of his country to buy luxury property and goods in URA4. Some of these assets include a palatial house, a luxury mansion and a privately owned jet. The offence of money laundering was completed when the proceeds of crime were invested in URA. Hence, the offence committed by Mr.TTK Ganzard in relation to money- laundering is not a purely domestic affair. Therefore, there has been no violation of the principle of non-intervention in the domestic affairs of Republic of Andorra. Secondly, it has been held that to constitute intervention, the interference must be forceful and dictatorial or coercive in nature, in effect depriving the state intervened of the control over the matter in the question.5 It is submitted that acting under an international law for an international crime is not a forcible or dictatorial move at all; it is actually a procedural move, which allows both parties to present their case in front of a neutral highly qualified third party. It is submitted that the elements of coercion, dictatorship and forcefulness are not present in any way. [ii]. THE PROSECUTION OF MR . TTK G TTK GANZARD

WITH RESPECT TO CORRUPTION FOLLOWS THE

COMPLEMENTARITY PRINCIPLE

As discussed above, the prosecution of Mr. Ganzard with respect to the offence of corruption in URA follows the principle of universal jurisdiction. It is conceded at the outset that while exercising such universal jurisdiction, the prosecuting state is barred from violating the 3

David McClean, T RANSNATIONAL ORGANIZED CRIME: A COMMENTARY ON THE UN CONVENTION AND ITS PROTOCOLS , 57, 1st edn., (2007). 4 Moot compromis, page 14, ¶ 7. 5

Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.

United States of America), America), Judgment, 1986, ICJ Reports, 14 (International Court of Justice).

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principle of non-intervention no n-intervention in the th e domestic do mestic affairs af fairs of o f another anothe r state. st ate.6 This is based upon the principle that priority should be given to territorial jurisdiction over any other form of jurisdiction. In the case of SS Lotus7, it was held that there were two complementary principles regarding territorial jurisdiction. One of them stated that the states retain a wide measure of discretion to exercise jurisdiction within their own territory, with regard to acts committed beyond their borders. Later, the ICC statute8 incorporated within itself the principle of complementarity, which states that the States parties may take the lead in investigating and prosecuting international crimes.9 The ICC will only undertake investigations and prosecutions as a court of last resort where states parties are unwilling or unable to do so. It is well recognized now that this principle of complementarity is applied where states are prosecuting individuals under the power of universal jurisdiction. Hence, in order to avoid intervention within the domestic affairs of another state, the prosecuting state can only prosecute, if the state with the territorial jurisdiction is unwilling or unable to prosecute the accused.10 It is submitted that the accused has a high position of power within Republic of Andorra. He was the Second Vice-President, also holding the portfolio for defence and security.11 Later in 2014, he has become the Vice-President of the country.12 Neither has Republic of Andorra launched an investigation on its own or has indicated that it is willing to do so. A time period of almost 5 years has elapsed since when Accountability International brought a complaint against TTK Ganzard Ganz ard in the year 2009. This is more than a reasonable period of time to launch an investigation against an individual who is accused of an grave 6

James Crawford, B rownlie’s Principles of Public International Law, 313, 8 th edn., (2013). S.S. Lotus (France v. Turkey) , Judgement, 1927, PCIJ Reports, 10 (Permanent Court of International Justice). 8 Art. 17, Rome Statute of the International Criminal Court, (Adopted on July 17, 1988). 9 El Zeidy, T HE PRINCIPLE OF COMPLEMENTARITY IN I NTERNATIONAL CRIMINAL LAW: ORIGIN, DEVELOPMENT AND PRACTICE, 157, 2nd edn., (2007); S v Basson [2005] Basson [2005] ZACC 10. 10 National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another [2014] ZACC 10. 11 Moot compromis, page 14, ¶ 5. 12 Moot compromis, page 19, ¶ 1. 7

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offences. All these facts lead to the single conclusion that the Republic of Andorra is unwilling to launch an investigation into the offences of their Vice- President. Therefore, the prosecution of Mr. TTK Ganzard for offence o ffence of corruption cor ruption does not intervene in the domestic domesti c affairs of Andorra.

[B]. URA has jurisdiction over the crimes committed by Mr. TTK Ganzard

Article 15 of UNCTOC deals with the aspect of jurisdiction of the parties to the convention. It is submitted, firstly, that the URA has territorial jurisdiction over the offence of money laundering [i]. Secondly, it is submitted that the prosecution of Mr. TTK Ganzard is not in violation of Article 4 of the UNCTOC, which talks about sovereign equality and nonintervention in the domestic affairs. The offence of money laundering is not a domestic affair of Andorra and the offence of corruption does not violate the complementarity principle. Furthermore, it is submitted URA has jurisdiction over the crimes committed by Mr. TTK Ganzard under UNCTOC. Since the offence of money laundering was committed in URA, it has territorial jurisdiction over this offence. With regards to offences of corruption, illegal manufacturing of arms and ammunitions and that of human trafficking, URA has universal jurisdiction. Universal jurisdiction can be used for crimes against humanity because these offences do not affect a particular nation but the entire international community as a whole. The offences above-stated are all crimes against humanity, hence jurisdiction on basis of universality can be established and exercised for all of them [ii].

[i]. URA HAS TERRITORIAL JURISDICTION OVER THE OFFENCE OF MONEY -LAUNDERING

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Article 6 of UNCTOC criminalizes money laundering.13It includes all predicate offences both within and outside the jurisdiction of the state party in question.14 Article 2(h) defines a “ predicate offence” means any offence as a result of which proceeds have been generated that

may become the subject of an offence as defined in article 6 of this Convention.15 “Proceeds of crime “mean any property derived, directly or indirectly through the commission of an

offence.16 Hence, corruption and embezzlement of public funds is the predicate predicate offences through which the proceeds have been generated. Any conversion of this property which is a proceed of crime would be covered within the definition of money laundering.

17

It is

submitted that the act of buying assets in URA through the proceeds of crime is an act of conversion. Hence, the offence of money laundering under UNCTOC is completed when Mr TTK Ganzard purchases assets in URA. Further, even if we look at money laundering generally, is process of transforming proceeds of crime and corruption into ostensibly legitimate assets.18 Procedurally it involves three stages. The first step is called placement and involves introducing cash into the financial system.19 Second step is called laying and involves carrying out complex financial transactions to camouflage illegal source of income.20 Lastly, third stage involves acquiring wealth generated from the transaction of illicit funds and is called integration.21 If any one of

13

Art. 6, United Nations Convention against Transnational Organized Crime (Adopted on November 15, 2000). Art. 6(2)(c), United Nations Convention against Transnational Organized Crime (Adopted on November 15, 2000). 15 Art. 2(h), United Nations Convention against Transnational Organized Crime (Adopted on November 15, 2000). 14

16

Art 2(e), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). 17 Art. 6(1)(a)(i), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). 18

European Parliament Parliament and Council Directive 2002/83/EC of 5 November 2002 concerning life insurance.

19

McClean, supra note 3, at 74. 20 Id. 21 R. Peter, CHASING DIRTY MONEY, 113, 134 (2004).

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the above stages is undertaken, it amounts to money laundering. Further, if any one of the above stages is undertaken, it amounts to money laundering.22 From the perspective of jurisdiction, if any an y of the above steps is undertaken und ertaken in a particular particul ar jurisdiction, it creates cre ates cause of action in that jurisdiction.23 It is submitted that in the instant case allegations suggest that funds for acquiring property in URA are illegal.24 These funds have been acquired illegally as per article 6 of UNCTOC from the proceeds of crime. These crimes include corruption, illegal arms manufacture, and human trafficking.25 Further, the last stage of moneylaundering, i.e. integration was undertaken within the legal jurisdiction of URA. The same was done by buying real estate within the geographical limits of URA by the wealth that has been allegedly acquired out of proceeds of crime.26 Hence, both under UNCTOC and generally the offence of money laundering is completed when Mr. Ganzard buys assets in URA. A state has jurisdiction under UNCTOC if the offence is committed in the territory of that state party.27 A state has objective territorial jurisdiction over the offence, if the culmination of the offence has taken place within the state even if not begun there. It is submitted even if the offence of money laundering did not begin in URA, its culmination took place in its territory when Mr. TTK Ganzard brought assets in URA. Therefore, URA has territorial jurisdiction over the th e offence of money laundering. launderin g.

[ii]. URA HAS

JURISDICTION OVER THE OFFENCE OF CORRUPTION , HUMAN TRAFFICKING AND

ILLEGAL MANUFACTURING OF ARMS UNDER THE PRINCIPLE OF UNIVERSAL JURISDICTION

22

Art. 6, United Nations Convention against Transnational Organized Crime (Adopted on November 15, 2000). T. C. W. Lin, Financial Weapons of War , MINNESOTA LAW R EVIEW EVIEW (100), 1377, 1381 (2016). 24 Moot compromis, Page 14, ¶ 11. 25 Moot compromis, Page 15, ¶ 12. 26 Moot Proposition Page 15, ¶ 12. 27 Art. 15(1)(a), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). 23

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The use of the word shall in Article 5 of both the protocol related to illegal manufacturing of arms28 and that of trafficking in people29 shows that it is mandatory for state parties to these protocol to criminalize such conduct by way of legislations and other measures. It is submitted that URA can establish jurisdiction over the offence of corruption, illegal manufacturing of arms and trafficking of people under the principle of universal jurisdiction [a] Further, it can even submitted that URA can exercise this jurisdiction because international customary law recognizes universal jurisdiction in absentia [b].

[a] URA can establish jurisdiction over the offence of corruption under the principle of universal jurisdiction.

UNCTOC grants state parties the right to exercise universal jurisdiction over the offences defined in UNCTOC. 30 There is no norm in international law, which is prejudiced by the exercise of universal jurisdiction. Hence, Mr. TTK Ganzard can be prosecuted for the offences of corruption within URA. Assuming but not conceding to the fact that UNCTOC does not provide for universal jurisdiction within its text, this jurisdiction can still be exercised according to customary international law. Universal jurisdiction is applicable to crimes under customary international law the commission of which is generally accepted ‘as an attack upon the international order’. 31 In

28

Art. 5, Protocol against the Illicit Manufacturing of and Trafficking in firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime. 29 Art. 5, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime. 30 Art. 15(6). United Nations Convention against Transnational Organized Crime (Adopted on November 15, 2000). 31 Arrest Warrant , ICJ Reports 2002 p 3, 81 (J udges Higgins, Kooijmans & Buergenthal).

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the Eichmann case 32, it was held that the abhorrent crimes in Israel struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself (delicta juris gentium ). The Supreme Court of Israel argued that universal jurisdiction for crimes against humanity is “universal power vested in every state to prosecute for crimes

of this type carried out in the past – a – a power which is based on customary international law”. Furthermore, the Court in the Eichmann case referred to the Lotus paradigm stating that as long as there existed no rule of international law prohibiting a state from trying a foreign national for acts committed abroad, it was permissible to do so.33 After this case, right to exercise universal jurisdiction over grave crimes grew to be accepted – to some degree – by many states; and that a right could be crystallising under customary

international law through state practice and opinio juris,34 which are the two elements necessary for the emergence of customary international law. In modern times, it has been extended to the so-called ‘core crimes’ of customary international law, being genocide, crimes against humanity and breaches of the laws of war. It is submitted that the offences of corruption and trafficking of people committed by Mr. TTK Ganzard is a crime against humanit y under Article 7(1)(k)35 and 7(1)(c)36 of the ICC Rome Statute respectively. All the elements required to be a crime against humanity are satisfied as firstly, these offences are an attack [1]. Secondly , these are widespread and systematic [2]. Thirdly, these are directed against a civilian population [3]. Fourthly , Mr. TTK Ganzard acted with the knowledge that his act formed part of the attack [4] fifthly, the

32

A-G Israel v Eichmann, Eichmann , Supreme Court Judgment of 29 May 1962, (1968) 36 International Law Reports 304, para 12 (e). 33 S.S. Lotus (France v. Turkey) , Judgement, 1927, PCIJ Reports, 10 (Permanent Court of International Justice). 34 J.M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law: Volume 1 and 2 , (Cambridge University Press 2005); 2005) ; M. C. Bassiouni, ‘International Crimes, Jus Cogens and Obligatio Erga Omnes’(1996) Omnes’(1996) 59 Law 59 Law & Contemporary Problems 63. 35 Art. 7(1)…k - Other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or mental or physical health. 36 Art. 7(1)….c- Enslavement

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offence of corruption and trafficking are an inhumane act and an act of enslavement respectively [5] [1] All offences are an attack Article 7(2) defines an “attack” broadly as “a course of conduct involving the multiple commission of acts referred to in paragraph one against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such act.”37 Active State or

organizational promotion or encouragement of the crime is evidence of a policy, and in exceptional circumstances, a State or organization’s deliberate failure to take action when

such failure is consciously aimed at encouraging an attack satisfies this requirement.38 As such, neither military nor armed conflict is necessary, nor does an attack require the infliction of violence.39 Rather, this element is satisfied so long as the state’s policy is carried out in contravention of one of the listed criminal acts in Article 7(1).40 It is submitted that the abuse of his government power by Mr. TTK Ganzard, even though unauthorized is a state policy directed against civilian population. Hence, this grand corruption by Mr. TTK Ganzard is an attack under the definition of Art. 7(1)(k) of the Rome statute. With regards to trafficking of women and children, Mr. Ganzard his abusing his diplomatic privileges for such su ch purposes. pu rposes. Hence, this thi s act is not n ot committed in his personal capacity but in his official capacity of being the Vice President of Andorra. [2] All offences are widespread and systematic

37

Prosecutor v. Akayesu, Case No. ICTR-96-4-T, J udgment, ¶ 581 (Sept 2, 1998). Prosecutor v. Gombo, ICC-01/05-01/08-424, ¶ 74, (June 15, 2009) (ICC Pre - Trial Chamber II). 39 William Schabas, T HE I NTERNATIONAL CRIMINAL COURT: A COMMENTARY ON THE R OME OME STATUTE, 101 – nd 102, 2 edn., (2010). 40 Id . 38

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Widespread refers to both the scale and nature of the attack, as well as the number of

victims.41 In contrast, systematic refers to the an organized nature of the acts of violence and the improbability of their random occurrence.” 42 It is submitted that corruption committed by Mr. TTK Ganzard satisfies both this criteria. Corruption can be viewed as widespread due to its detrimental impact on the lives of the many. Because of this corruption in Andorra, the people are enduring

grinding poverty, illiteracy leading

abysmal life-standards.43

Additionally, grand corruption should be viewed as systematic where it entails ongoing abuse of the budgetary process or outright theft of government funds.44 The fact that the the money made of the oil resources are going into the pockets of Ganzard family members proves that an outright theft of government funds is taking place. With regards to trafficking, it is widespread because is a highly organized and strategic business that involves the methodical identification, identificatio n, recruitment, manipulation, coercion, monitoring, and exploitation of trafficked persons to obtain ownership in the form power and control [3] All offences are directed against a civilian population In the case of Prosecutor v. Kayishema and Others ,45 it was held that a civilian could be understood in the context of a war as well as a relative place, when being used for crime against humanity. In Prosecutor v. Bisengimana,46 it was held that the term population does not require that the crime should be directed against the entire population, but it must have a collective nature, ruling out individual or incidental attacks. It is submitted that corruption on

41

Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T , Judgment, ¶¶ 427 – 28 28 (June 12, 2002). ., ¶ 429. Id ., 43 Moot compromis, page 14, ¶ 1. 44 Sonja B. Starr, Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations, EVIEW, 101(3), (2007). 1304-1305, NORTH WESTERN U NIVERSITY LAW R EVIEW 45 , Judgement, ¶ 127-29, ( May 21, 1999) (International Criminal Tribunal Prosecutor v. Kayishema and Others for Rwanda). 46 (I nternational Criminal Tribunal for Rwanda). Prosecutor v. Bisengimana, ¶ 125-26, ( May 21, 1999) (International 42

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such a grand scale as done by Mr. TTK Ganzard forces a large part of the population into poverty and illiteracy. illiterac y. With regards to trafficking, the fact that that the illegal arms and ammunitions are trafficked to different corners of the world prove that these are large scale operations. Therefore, these operations would require a large working force. Hence, it can be safely assumed that a significant number of people are trafficked in order to effectively carry out the manufacturing [4] Mr. TTK Ganzard acted with the knowledge that his act formed part of the attack Mr. TTK Ganzard ought to have known that stealing from the national treasury will mean subjecting the civilian population poverty, illiteracy and an abysmal standard of living. Hence, Mr. TTK Ganzard acted with the knowledge that his act formed part of the attack. With regards to trafficking, since Mr. Ganzard is the one at whose behest such activity is being carried out, he has the intent to commit it [5] The offences of corruption and trafficking are an inhumane act and an act of enslavement respectively

In Proscutor v Stakic ,47 an inhumane act was defined as an act, which causes serious injury to mental or physical health of a person. Clearly, the fact that the large scale corruption in Andorra which forces more that 60% of the population to live below the poverty line creates huge mental agony to the people in Andorra. It is further submitted that trafficking is an act of enslavement. Enslavement includes elements of control and ownership; the restriction or control of an individual’s autonomy,

freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible imp ossible or 47

Proscutor v Stakic , Case No. IT-94-1-T (September 2, 1999) ( International Criminal Tribunal of Rwanda).

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irrelevant by, for example, by abuse of power.48 Mr. TTK Ganzard abuses his diplomatic privileges for purposes of trafficking. An individual who is trafficked to work in a illegal arms manufacturing factory will definitely lack control over his actions. Hence, trafficking is an act of enslavement. . In the facts of our case, trafficking of people is taking place in order to commit this crime. Since this crime is so inextricably linked with a crime against humanity (trafficking), it should itself be considered a crime against humanity. The offence of manufacturing of illegal arms and ammunitions manufacturing should be considered crime against humanity because such weapons are used for perpetration of crimes like genocide, war crimes and crime against humanity. [b] URA can exercise this jurisdiction because international customary law recognizes universal jurisdiction in absentia.

The principle of universal jurisdiction in absentia states that a state party can exercise universal jurisdiction even if the accused is not present on its territory. The customary law of universal jurisdiction encompasses in itself the right to exercise this jurisdiction irrespective of the fact whether the accused is present on its territory or not. This principle would apply unless there is a customary rule expressly prohibiting universal jurisdiction in absentia. It is submitted that, firstly the there is no customary rule, which prohibits the use of universal jurisdiction in absentia [1]. Secondly, assuming but not conceding the fact that the rule of universal jurisdiction does not encompass in itself its use in absentia , there is customary rule, which expressly allows for universal jurisdiction in absentia [2]. [1] No customary customary rule prohibits prohibits the use use of universal universal jurisdiction jurisdiction in absentia

48

Prosecutor v. Kunarac, IT-96-23-T, ¶ 537, 541-42, (February 22, 2001) (ICTR Trial Chamber).

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It is submitted that neither is there any state practice nor any opinio juris, which prohibit the use of universal jurisdiction in absentia . It is accepted at the very outset that there are various national legislations, which require the accused to be present on its territory before he can be prosecuted. But it i t does not logically follow from this that they these th ese legislations bar the use of universal jurisdiction in absentia. Assuming but not conceding the fact that these legislations bar the use of universal jurisdiction in absentia, it cannot be said that there is any opinio juris to transform this state practice into a rule of customary law. The fact that states sta tes are doing so does not mean that they are legally obliged to bar universal jurisdiction in absentia. They might be obliged to do it under national law, but it does not follow from this that they are obliged to do this under international law as well. There are no conventions or treaties in international law which expressly bar the use of universal jurisdiction in absentia. Hence, no customary rule prohibits the use of universal jurisdiction in absentia.49 [2] Universal jurisdiction in absentia is expressly allowed under customary law It is submitted that universal jurisdiction in absentia is expressly allowed under customary law firstly, there is state practice in this regard. State practice would mean how a state behaves with regard to international law that can be ascertained from things like administrative acts, legislations, decision of court and activites on the international stage, for example, treaty making.50 It is submitted that there is state practice in favour of universal jurisdiction in absentia that can be determined through legislations enacted in various states. In the 1996 Pinochet Case, the Supreme Court of Spain decided that investigational proceedings by b y Spain based on Article 23(4) 2 3(4) of the Organic Law on the Judicial Power juncto ju ncto

49

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Dissenting opinion of Judge Ad Hoc Van den Wyngaert, 2002, 134 (International Court of Justice). 50 Malcolm N. Shaw, I NTERNATIONAL LAW, 82, 6th edn., ( 2008).

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Article 6 of the Torture Convention were admissible and legal because this provision does not exclude the possibility of universal jurisdiction in absentia by Spanish courts against Chilean General Augusto Pinochet, who was not present on Spanish territory. In New Zealand, regardless of whether the accused alleged perpetrator of international 'core crimes' is in New Zealand during the trial, he or she can be prosecuted and sentenced for offences on which absolute universal jurisdiction is established.51 The Swiss military tribunals can exercise universal jurisdiction jurisdiction in absentia over crimes committed by civilians or members of foreign forces against the international law during armed conflicts, while the alleged perpetrator does not have to be arrested or found on the Swiss territory.52 Likewise, the Belgian Law of 16 June 1993 as amended by the Law of 10 February 1999 'concerning the punishment of grave breaches of the international internati onal humanitarian law' gives the Belgian courts cou rts the right to prosecute pros ecute in absentia alleged perpetrators of genocide, crimes against humanity and grave breaches of the Geneva Conventions. In 2002, Germany enacted its Volkerstrafgesetzbuch [Code of Crimes against International Law], of which Article 1 provides, " this Act shall apply to all criminal offences against international law designated under this Act, to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany ." Secondly , there is opinio juris for universal jurisdiction in absentia. Article 146 of the IV

Geneva Convention of 1949, if interpreted in the right manner does not presuppose the presence of the offender. offender . It does not require requir e the presence pres ence of the suspect on the territory territor y of the state prosecuting the accused. Even in the case of SS Lotus,53 it was held that universal jurisdiction is permissible unless there is a prohibition pr ohibition to the contrary. Since there t here is no rule

51

Section 8(1)(c), iii, International Crimes and International Criminal Court Act, 2000.

52

Articles 108 and 109, Military Penal Code, Military Court of Cassation; State Prosecutor v. G.G., 5 September 1997. 53 S.S. Lotus (France v. Turkey) , Judgement, 1927, PCIJ Reports, 10 (Permanent Court of International Justice).

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contrary to universal jurisdiction in absentia , it would automatically mean that the SS Lotus case provides for universal jurisdiction in absentia.

29


II.

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Mr. TTK Ganzard does not enjoy immunity from the jurisdiction of United Republic of ASIAN.

Diplomatic immunity is a limited principle under Vienna Convention on Diplomatic Relations, 1961 and Vienna Convention on Consular relations, 1963. It is only provided to prescribe number of o f certain individuals indi viduals eligible for fo r the same.54 In this case it is submitted that Mr. TTK Ganzard does not have diplomatic immunity and subsequently United Republic of ASIAN (hereinafter URA) can proceed against him. This is because firstly, Mr. TTK Ganzard is not a constitutionally prescribed head of the state and hence does not have immunity applicable to heads of the state [A]; secondly , Mr. TTK Ganzard does not enjoy immunity from prosecution as the minister of Defence and Security for Republic of Andorra [B]; and lastly , Mr. TTK Ganzard only enjoys limited immunity as permanent delegate of Republic of

Andorra to UNESCO. This limited immunity does not cover wrongful acts for which he is being prosecuted in Andorra [C]. Further, even if he enjoys diplomatic immunity, the same will not be applicable in this case [D]. Additionally, even if Mr. TTK Ganzard enjoys any immunity, he has voluntarily waved off the same by submitting to the jurisdiction of URA [E].

[A]. Mr. TTK Ganzard does not enjoy immunity as a head of the state.

Republic of Andorra is a Presidential Democracy.55 Mr. Kian Ganzard, by virtue of being its president is also the head of the state. Consequently, Consequentl y, he also enjoys immunity from jurisdiction of the foreign state. Hence, he cannot be prosecuted by a foreign state for the 54

M. N. Shaw, I NTERNATIONAL LAW, 697 (6th edn. Shaw, 2008). 55 Moot Proposition, Page 13, Para 3.

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criminal and civil wrongs done by him.56 While this immunity largely flows out of customary international law,57 it is explicitly provided under the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004.58 However, such immunity is only limited to a head of the state or a subordinate acting in his place. It is submitted that Mr. TTK Ganzard was designated as the second-Vice President of the Republic of Andorra in the year 2007. However, he cannot be considered the head of the state or a subordinate capable of representing him because of primarily two reasons. Firstly, Republic of Andorra is a presidential form of government. In a presidential form of government, a head h ead of the state st ate is the president. In this case that post is held by Mr. Kian Ganzard. Further, immunity to the head of the state is also extended to an individual acting on behalf of the head of the state for the time being.59 It is humbly submitted that Mr. TTK Ganzard is neither of the two and hence cannot claim immunity for the same. Secondly, a head of the state is determined by the constitution of the state.60 In this case, Mr. TTK Ganzard is the second-Vice President of Republic of Andorra, which in turn is not a constitutionally recognised post.61 Thus, Mr. TTK Ganzard is not immune to the jurisdiction for being head of the state i.e. Republic of Andorra.

[B]. Mr. TTK Ganzard does not have immunity by virtue of being the minister of Defence and Security for Republic of Andorra.

56

Foakes, ‘Immunity for International Crimes? Developments in the Law on Prosecuting heads of State in Foreign Courts’, CHATHAM HOUSE BRIEFING PAPER , November 2011 (IL BP 2011/2). 57 (Arrest Warrant Case of 11 April 2000 [Democratic Republic of the Congo v Belgium] para. 52; Available at http://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-limits-on-prosecution-of-corruption-relatedmoney-laundering-by-foreign-officials/. 58 Article 2(1)(b)(i) and 2(1)(b)(iv), United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004. 59 Available at http://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-limits-on-prosecution-ofcorruption-related-money-laundering-by-foreign-officials/. 60 See Hyde, ii, SS 408; USA v Wagner (1887) (1 887) LR 2 Ch App 582. 61 Moot Proposition, Page 14, Para 10.

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Mr. TTK Ganzard is the minister of Defence and Security for Republic of Andorra.62 This post gives him a special position within the government of Republic of Andorra. However, this post does not entitle him to special benefits. As per the Customary International Law, all heads of state and officials of state enjoy immunity with respect to official acts committed during their tenure.63 While such immunity is absolute for Heads of state and Foreign Ministers, it is limited for other state officials and ministers.64 It is submitted that in this case Mr. TTK Ganzard has been accused of and is being prosecuted for corruption, moneylaundering and embezzlement of public funds.65 These acts certainly fall outside the scope of his office. In his capacity as the minister for defence and security, he would have enjoyed immunity in acts involving the official scope of his office.66 Financial misappropriation is certainly not within the scope of his office. Thus Mr. TTK Ganzard does not enjoy immunity from prosecution for offences mentioned above.

[C]. Mr. TTK Ganzard only enjoys limited immunity as deputy permanent delegate of Republic of Andorra to UNESCO.

Members representing other states in United Nations are granted total immunity from jurisdiction of foreign state.67 However, such immunity is largely immunity ratione materiae ,68 Section 11 of the convention says that “Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, 62

Moot Proposition, Page 14, Para 9. Immunities of state officials, international crimes, and foreign domestic courts. European Journal of International Law Volume 21, No. 4, 2010, pp. 815-852. 64 71; Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Dji Ibid., at paras 55, 70 – 71; bouti v. France), ICJ judgment of 4 June 2008, at para. 170, available at: www.icj-cij.org/docket/files/136 /14550.pdf. 65 Moot Proposition, Page 15, Par 18. 66 French prosecutors throw out Rumsfeld torture case, Reuters, case, Reuters, November November 23, 2007. 67 Article IV, General Convention on Privileges and Immunity of United Nations, 1946. 68 H. Fox and P. Webb, The Law of State Immunity, 549 -560 (3rd edn., 2013). 63

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shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities.” Further Section 14 explicitly states that “Privileges and

immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations.”

A combined reading of the two suggests that immunity accorded to the members of the representative state are limited. They only extend to their official functions and cannot be used for the personal benefit of the representative. Such official functions include travel to and from place of meeting and representation. In this case, financial misappropriations by Mr. TTK Ganzard are outside the scope of his official function. They are in no manner whatsoever in furtherance of his function of representing interest of Republic of Andorra at UNESCO. Hence, he cannot claim immunity under this provision.

[D]. Defence of diplomatic immunity is not applicable to this case.

Presuming but not conceding that Mr. TTK Ganzard enjoys immunity, it is humbly submitted that the same shall not be applicable in this case. It is submitted that diplomatic immunity, either ‘immunity ratione personae’ or ‘immunity ratione materiae’, is not applicable if the crime is covered by Ius Cogens .69 Further, even though immunity may have been granted in customary law, the same does not hold authority if it has been expressly overruled by an authority.70 It is acquiesced that Mr. TTK Ganzard faces serious criminal charges, perhaps of

69

The Minister of Justice and Constitutional Development v. The South African Litigation Centre (867/15) [2016] ZASCA (15 March 2016). 70 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ; Available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=121&p3=4

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the nature of Ius Cogens .71 Further Mr. TTK Ganzard also has charges of human trafficking and manufacture of illegal arms against him.72 These crimes are covered under United Nations Convention against Territorial Organised Crime, and are Ius Cogens.73 Considering the same, Mr. TTK Ganzard does not enjoy immunity because of the heinous nature of his crimes. Additional, both Republic of Andorra and United Republic of ASIAN are a party and signatory to UNCTOC.74 Consequently, both states expressly overruling any immunity for crimes of the nature that are committed by Mr. TTK Ganzard. Hence, Mr. TTK Ganzard cannot claim immunity.

[E]. Mr. TTK Ganzard has waved off his immunity by voluntarily submitting to the jurisdiction of URA.

Immunity can be waived off if an individual voluntarily submits to the jurisdiction of a court.75 An individual submits to the jurisdiction of a court either by being plaintiff in a case or by defending his actions without challenging jurisdiction in the case.76 It is submitted that Mr. TTK Ganzard had denied charges of wrongdoing after prosecution agency of URA prepared charges against him.77 Subsequently, by doing so he has submitted to the jurisdiction of courts of o f URA and does not enjoy enjo y immunity from the same. Thus, by b y virtue of submitting to the jurisdiction, Mr .TTK Ganzard has waived of his diplomatic immunity.

71

For human trafficking and illegal arms manufacturing. The charges of money laundering, embezzlement of public funds and corruption are a direct consequence consequence of the same. same. 72 Moot Proposition, page 19, Para 31. 73 Article 2, United Nations Conventions against Transnational Organised Crime (Adopted on November 15, 2000). 74 Moot Proposition, Page 17 and 18, Para28. 75 Hullett v The King of Spain (1828). 76 Enrica Lexie Case, 2012. 77 Moot Proposition, Page 19, Para 18.

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It is not a diplomatic mission because the act of doing so ignores various

III.

provisions of the Vienna Convention of Diplomatic relations

1. There are various rules and regulations which govern the setting up and the functionality of the diplomatic mission and its inviolability. There is only one broad procedure relating to the establishment of a diplomatic mission set out in the Vienna Convention on Diplomatic rights and therefore it is essential and cannot be violated.78 The setting up of a diplomatic mission by one country in another country’s land requires r equires an essential element which is consent . The Vienna Convention of Diplomatic right’s has laid down a procedure an d certain guiding

principles which elucidate this requirement. r equirement. It is submitted that the t he move by the t he Republic Rep ublic of Andorra to convert the property of Mr. Gandzard into a diplomatic mission by buying it and declaring it so is bad in law. This is so because [A] It ignores various provisions of the Vienna Convention on Diplomatic rights [B] URA’s consent does not exist in any scenario.

[A]. It ignores various provisions and the procedure laid down in the Vienna Convention on Diplomatic rights.

2. The facts establish that the investigative agency of URA in lieu of conducting the investigation against Mr. Gandzard in lieu of his alleged money laundering seized some assets of Mr. Gandzard as is the norm in any legal investigation.79 One of these assets was a palatial house at Rose Avenue. Before the trial was about to start, Mr. Gandzard sold that property back to his own government. The Republic of Andorra then declared declar ed that property a

78

Article 2, Vienna Convention on Diplomatic relations (1961). Moot Proposition, Page 17, ¶ 26.

79

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‘diplomatic mission’ of the state of Andorra and claimed absolute immunity from all kinds of

prosecution relating relatin g to that property since it was w as a diplomatic mission now. n ow.80 3. It is submitted that this step taken by the Republic of Andorra is not valid in law and the immunity will not exist as the building is not a diplomatic mission. The establishment of a diplomatic mission is not an absolute unilateral decision, on the other hand it is a procedural matter which requires consent based exactly on the logic of sovereignty that Mr. Gandzard seeks to argue with. The assertion that we seek to put across is that Mr. Gandzard is abusing the power that he has within the Government of Andorra in order to escape personal liability for his alleged wrongdoings which are in investigation by making the investigation stop. This should also be read along with read into the fact that the Republic of Andorra’s radical decision to make that property a diplomatic mission came after the property was in investigation and the trial was about to start. 4. It is submitted that the private property is not a diplomatic mission because it is not in accordance with various provisions relating to Diplomatic missions in the Vienna Convention. Article 2 states that the establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.81 Article 12 reiterates the requirement of express consent of the receiving state for the establishment when one needs to open another branch of a mission.82 Article 4(1) requires that a state needs the consent of the receiving state before appointing a person as the head of the diplomatic mission.83 Article 11 of the convention requires consent from the receiving state to be established from the receiving state with regard to the size and the limits of the boundary of the diplomatic mission.84 All of these provisions if read together establish one common link, that is, of

80

Moot Proposition, Page 16, ¶ 25. Article 2, Vienna Convention on Diplomatic relations (1961). 82 Article 12, Vienna Convention on Diplomatic relations (1961). 83 Article 4, Vienna Convention on Diplomatic relations (1961). 84 Article 11, Vienna Convention on Diplomatic relations (1961). 81

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consent and a procedure in place with regard to the setting up of a diplomatic mission. It is argued that the principle of mutual consent laid down in Article 2 and reiterated in Articles 4, 11 and 12 make it evident that the setting up of a diplomatic mission is not a unilateral imposition from the side of the sending state.85The preamble of the convention states that “… realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing State.”86 The convention stresses on the non-abuse of the privileges granted within it. The Republic of Andorra did not take express consent with regard to firstly, the setting up of a diplomatic mission and secondly, about the size or location of the mission from URA. The property in such s uch circumstances would remain just a property pro perty and would not transform into a diplomatic mission.

[B] URA’s consent does not exist in any scenario.

4. It is submitted that the act of declaring the private property as a diplomatic mission was just a reflex action acti on influenced by Mr. Gandzard’s high position in the Republic of Andorra’s

government structure, done primarily with the objective of obtaining immunity and thus hindering his prosecution by URA. This act violated the aforementioned articles of the Convention. It is extremely legitimate to argue that URA would never give consent for converting the property in dispute and diplomatic property as they were the party who were prosecuting Mr. Gandzard. The communiqué’s by URA also refle cts the intention by URA to

85

An excellent analogy would be a hypothetical example of how a country cannot just set up a diplomatic mission in front of the white house in America. 86 Preamble, Vienna Convention on Diplomatic relations (1961).

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not let that property become a diplomatic property.87 There is clear intention by URA to not let that property become immune. Additionally, the Republic of Andorra already has a diplomatic mission based in URA; therefore this move loses even more credibility.88 Summarizing, the move by the Republic of Andorra goes against the literal provisions of law, the intention of the receiving state and therefore we submit that the property is in fact, not a diplomatic property. Therefore, the violability of the building is legitimate in law. The leading case decided by this very court on Diplomatic immunity of a diplomatic mission which is the Case concerning diplomatic and consular staff in Tehran also reiterates the fact that the property needs to be a diplomatic mission in order for the said immunity to flow.89

87

Moot Compromis, Page 17, ¶ 28. Query 2, Clarifications to the Moot Compromis. 89 United States v Iran, Judgment, (1980) ICJ Reporter, 17 (International Court of Justice). 88

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IV.

Team Code: CLEA003

Even if there was violation of diplomatic immunity, Andorra cannot claim any damages for the same.

Under the Vienna Convention on Diplomatic Relations and as per the principle of customary law, violation of diplomatic immunity is an offence.90 In fact it is an offence by one sovereign against another.91 However, there are no provisions under statutes or customarily law that grant compensation under such circumstances.92 This is because firstly one sovereign state cannot sue another state for damages [A], and secondly , satisfaction in the form of liability finding itself is the appropriate form of reparation for the proven violation of diplomatic law [B].

[A]. One sovereign state cannot sue another sovereign state for damages

In Federal Republic of Germany v. Miltiadis Margellos 93 Greek Special Supreme Court held that state immunity a generally recognized international norm which prohibits actions for damages in relations to crimes and civil wrongs. The court further stated that there is was not enough consistent to widespread state practice to demonstrate any exception to the norm of state immunity. In Ferrari v. Federal Republic of Germanny 94 Italian Supreme Court explicitly rejected the contention that state immunity does not exist in case of violation jus cogens. It concluded that state immunity with respect to compensation is an absolute

principle. Consequently no damages can be claimed under any circumstances from a 90

S. D. Murphy et al, LITIGATING WAR : MASS CIVIL I NJURY AND THE ERITREA-ETHIOPIA CLAIMS COMMISSION, 381 (2013). 91 Id. at 388. 92 Id. at 387. 93 Federal Republic of Germany v. Miltiadis Margellos, Case 6/17-9-2002 (Greece: Special Supreme Court, 2002). 94 Ferrini v. Repubblica Federale di Germania, 87 RDI (2004) 539 (Italy: Cassazione), at paras 7 and 8.2.

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Team Code: CLEA003

sovereign state. Further, in Greek Citizens v. Federal Republic of Germany, 95 the German Supreme Court noted that the principle of state immunity is absolute. It further stated that this principle cannot be violated vio lated under any circumstances. circumst ances. It is submitted that apex courts of multiple jurisdictions have taken the view that state immunity is absolute. Further, these courts have also agreed that sovereign immunity also applies in cases when one sovereign seeks damages from another for its misconduct. Consequently, by virtue of being followed by multiple courts, this aspect of law has become customary law.96 Hence, it is submitted that as per this customary law, URA is not liable to pay any monetary compensation compens ation to Republic of Andorra. Ando rra.

[B]. Satisfaction in the form of liability finding itself is the appropriate form of reparation for the proven violation of diplomatic law

In the Eritrea-Ethiopia claims commission decision, Eritrea claimed monetary compensations form Ethiopia for violating provisions of diplomatic immunity.97 Ethiopia arrested diplomat of Eritrea, and subsequently searched and seized their belongings.98 Ethiopia further broke into, and searched and seized the embassy building of Eritrea.99 It further, seized some of the diplomatically important communications.100 On the other hand, Ethiopia made more or less similar contentions. It sought compensation for arrest of its diplomat and violation of his diplomatic immunity. The commission concluded that satisfaction in the form of its liability

95

Greek Citizens v. Federal Republic of Germany (The Distomo Massacre Case), 42 ILM (2003) 1030 (Germany: Sup. Ct, 2003), at 1033. 96 Article 38, The Statute of the International I nternational Court of Justice, 1945. 97 Eritrea’s Diplomatic Claim, Partial Award, 2007 (para 36). 98 Id. 99 Id. at para 41. 100 Eritrea’s Diplomatic Claim, Final Award, 2009 (para 114).

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Team Code: CLEA003

finding was a sufficient repatriation for violation of diplomatic immunity in the two cases.101 The commission also explicitly dismissed monetary compensation claims except in the cases wherein personal belongings of diplomats were not returned.102 It is submitted that the circumstances of aforesaid case are extraordinarily similar to the circumstances of current case. Under such situations, URA should also not be liable for monetary compensation. At best, liability of URA is satisfied by the liability findings of URA with respect to violation of diplomatic immunity in the two cases.

101 102

Id. at para 4; Ethiopia’s Port Claim, Final Claim, 2005 (para 6). Final Award, Ethiopia’s Damages Claims, 2009 (para 226, Annexure 16).

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Team Code: CLEA003

CONCLUSION The Applicant, the United Republic of ASIAN, respectfully asks this court to adjudge and declare that: I.

United Nations Convention on Transnational Organized Crime is applicable in the case and Mr. TTK Ganzard can be subsequently subsequentl y prosecuted in URA,

II.

Mr. TTK Ganzard does not enjoy diplomatic immunity and consequently URA can prosecuting him under its jurisdiction,

III.

Diplomatic premises of Republic of Andorra was not illegally searched and seized, and

IV.

United Republic of ASIAN is not liable to compensate Republic of Andorra for damages arising out of violation of diplomatic immunity.

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CLEA Moot, 2016 - Best Memo - Respondent

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