First question set: Assume the facts up to this point for this question – a) The Government of President Simon in Dena demands that the actions of Brio and Cana are in directly violation of its territorial sovereignty and also the acts are not proportionate to the crisis. You are the legal counsel to Mr. Simon. You need to identify the legal issues for Mr. Simon and his cabinet. Prepare a legal memorandum giving all of the legal issues with regards to this matter. In the memorandum mention any and all jurisdiction issues, the source of international law issues. What would you advised Mr. Simon with regards to any legal issues on the side of the government of Dena? What would you advise President Simon as to the possible legal justification the states of Brio and Cana would use?
b) The Governments of Brio and Cana have asked Arno for troops and resources to assist with adding the Fina Group. Arno has refused. Prepare a legal memorandum giving all of the legal issues with regards to this matter. What are the legal issues surrounding the refusal by Arno given the ABCD authority? What are the legal arguments by the governments of Brio and Cana and what are the legal arguments by the government of Arno? c) Who is the legitimate government of Dena? Prepare a legal memorandum giving all of the legal issues with regards to this matter. What are the legal issues when deciding the legitimate government of Dena.
Additional facts to consider:
Detainment of President Simon (what international legal status does he have?) and the killing of a citizen of Cana by ABCD and Cana troops.
Regardless of the international legal outcome of the first question set, the “civil war”, “illegal action” or “self determination” struggle depending on your point of view continues within the State of Dena. One particular targeted airstrike by ABCD against President Simon’s compound results in the capture of President Simon. In addition, the airstrike kills some Dena innocent civilians as well as a citizen of Cana, Mr. Hilo that was assisting President Simon as a military advisor with the armed conflict against the Fina Group. Mr. Simon is handed over to the International Criminal Court in The Hague, the Netherlands. A small group in Cana associated with the former President, Mr. Grant complains to the international community about Mr. Hilo’s death and the fact that he was targeted by ABCD including troops from Cana.
Second question set: Assume all of the facts up to this point for this question – a) You are the legal court clerk for the International Criminal Court. You are asked to write an international legal memorandum about the detained President Simon you are holding. Please identify all of the legal issues surrounding detaining President Simon. In addition, please identify what actions the ICC could take against President Simon as well as anticipate President Simon’s defense. What argument could President Simon make about targeting innocent Dena civilians? Make sure you identify the sources of law and whether the ICC has jurisdiction over this matter. b) Write an international legal memorandum explain all of the issues concerning the Cana groups complaints about Mr. Hilos’s death. Does this group have international legal personality? Does his death fall under some international law? If so, why and if not, why not? Please fully explain your answer and list all possible issues surrounding these questions…………………
1st Set of Questions
Question A; Answer
The President must understand that international laws involve the nation-States as opposed to private citizens. The international law is further divided into private and public international laws (Crawford, 2006, p. 34). Under the international public law, the interests of the member citizens must be protected. In regard to the oppressive rule of President General Simon, Dena’s majority ethnic group wants him replaced. Peaceful demonstrations have erupted in the State of Dena in demand for democratic rule. The President decided to use force against the demonstrators where many protestors were detained and killed. The majority Fina Group decided to retaliate in order to protect the citizens of Dena. The president and his cabinet violated human rights by not letting the citizens of Dena to freely express their views and complain hence finding an amicable solution. Instead he decided to kill them. This is against the international public law on human rights violations. The President has a right to accuse Brio and Cana for interfering with sovereignty of Dena because the principles of International law dictate that no nation has a right to intervene for any purpose whatsoever, directly or indirectly, in the external or internal affairs of another State. The international court of Justice also dictates territorial sovereignty which is significant in creation of good international relations. According to Shaw, (2008 P.213), Brio and Cana would allege violation of human rights and racial oppression which they would claim does not fall under domestic jurisdictions. Such issues undermine the independence of a State hence a need for Moral right to intervene by the United Nations and international treaties. In reference to the treaty where the majority citizens are threatened by an oppressive leader, then the treaty must come in force. The United Nation’s interventions prompted Brio and Cana to intervene by declaring a no fly zone. Their actions are therefore not contravening the territorial sovereignty, neither are they out of proportion.
Question B; Answer
By refusing to give troops and resources to Fina Group, Arno is only but reiterating their stand during the formation of the treaty. In so doing, this kind of a treaty will not be treated as one though the effect politically may be considerable. The main purpose of ABCD treaty was to form a self-defense mechanism. Arno accepted to join the treaty but refused to consent to the idea of lending soldiers and resources to fight any war. As a matter of fact, the consent of the parties in making a treaty is essential hence the provisions under the States will be binding upon the parties who have consented to the terms and conditions of the treaty.
Arno only consented to the treaty by way of acceptance to join but never consented to other terms and conditions in the treaty. Given the ABCD authority Arno, as far as it is concerned there were certain reservations for which it the State did not agree to. The ABCD authority cannot therefore bind Arno on the treaty since despite the other provisions, Arno did not agree to the issue of troops and resource donation as it disagreed on that idea during the formation of the treaty. This is because Arno is a sovereign State hence the other States cannot bind the State to the treaty. The arguments by Brio and Cana would be since the treaty formed consisted of four States and all the parties signed for the treaty it does therefore mean the treaty and its terms and conditions bind all the parties at stake. The government of Arno would then content that there were disagreements on some parts of the treaty hence the State is not bound by the terms and conditions of the treaty. This therefore implies that the treaty was not yet in force by the time Dena was getting into the era of civil war. According to article 29 of the international court of Justice a treaty will only be binding upon each nation or party according to its entire territory.
Question C; Answer
The legitimate government of Dena is Fina group. A legitimate government is one which is recognized by the United Nations and the international community. Besides, legitimate government has the support of the majority. In this case Fina Group which has the majority ethnic group is supported by the United Nations to protect the citizens of Dena. The international community which is the ABCD treaty also recognizes Dena as the legitimate government. According to Santelli, (1997) a legitimate government must be democratic and support the views of the majority. Recognition of legitimate governments may be on the basis of constitutive theory in which other States endows the government with legal personality as established under international community. Besides a legitimate government may be recognized by declaratory theory based on its existing conditions hence international law may identify it according to its specific factual situation.
The United Nations must certify that the government in question is able to meet the minimum requirements in regard to the international law and has the ability control effectively the resources within the State. Hence the legitimate government has an evidence of acceptance of its political conditions by the culture of nations. In determining a legitimate State, one has also to consider the extent to which the government can exercise its rights within its domestic authority. Other factors that might determine legitimality of a government include adherence to human rights and other matters. In accordance with the European community declaration in 1991 legitimate government calls for a government that respects the charters detected by the United Nations and commit to the Final Act of Helsinki specifically in regard to human rights, rule of law and democracy. It should be a government that assures ethnic rights group of majority and minority and that which does not violate frontiers of all peaceful measures. It is therefore prudent not to consider President Simon’s Government as legitimate as it does not meet the above conditions.
2nd Set of Question
Question A; Answer
President Simon is being held for perpetrating civil war against the Fina group who form the majority of Dena’s State. The people’s rights were violated when they were denied the liberty of expression. President Simon was ruthless and oppressive in his rule. He was against the idea of democratic government as suggested by the Fina group. In respect to his aggressiveness, he used force to detain the protestors; he used guards as well as army to kill the protestors. Besides, massive air strikes, army power and navy were fully commanded by the President against the Fina group. The human rights of the people were highly violated hence a violation of international public law in respect to United Nations’ charter. The charter calls for international order across boundaries which stipulate punishment and restraining of those who resort to international violence (ICJ, 2007, p. 1307). The charter provides that all members of the United Nations must abstain from threat or actions of threat in their international relations against the integrity of the territory or political autonomy in a way that is contrary to the intentions and objectives of the United Nations. This charter is contained in the Customary international law hence it binds all States and communities in the world. The international community has the jurisdiction to protect all citizens against any political leader with the intent to violate their human rights.
The President would make allegations of Fina Group killing innocent people during their raid in his Compound. If Fina Group would not have demonstrated then the civil war would not have taken place. The other States are also to be blamed according to President Simon. They shipped in massive weapons which took the life of innocent Cana’s. The President would also claim of protecting the interest of the innocent Dena citizens from selfish leaders who whose intentions were to destroy the economy of the State. International Community Court has jurisdiction over the issues at hand. In respect to article VI of the Genocide Convention of 1948 stipulates that any individual accused of genocide must be tried a court within the Act territory or international penal tribunal. The mandate of International criminal court is constrained to the most critical crimes in regard to international community such as war crimes, crimes against humanity and genocide (Rehman, 2002, P. 37). In this respect President Simon is under the jurisdiction of International Criminal Court to be charged. This will be in accordance with the rules of international law as stipulated in article 38.
Question B; Answer
The complaints of Cana groups in regard to the death of Mr. Hilo are not genuine as any person who threatens other people’s life may be executed for self-defense purpose (Dinstein, 2005, P. 56), Mr. Hilo was a military advisor of President Simon. Hence the air strikes and the killing were highly directed by him or he was directly involved in giving the President ill advise of wiping Fina group. Priorities of rights must be considered in this case. These are rights of life and prevention from unlawful detainment and torture. Cana citizens would not have any grounds to prosecute those who killed Mr. Hilo as his continued existence would undermine the human rights of the rebels of President Simon. His killing would be termed as an act of self defense.
It implies therefore these people have got no legal personality to sue the killers of Mr. Hilo neither does he fall under the international laws. The counter claims do not fall under the jurisdiction of international court of justice as it is not distinct from the claims being presented before the court of justice. The degree to which it connects with the crimes being charged of does not make them valid as to violation of human rights and interference with the democratic way of governance. In the protection of the rights of majority the president would be a reigned in the international court of justice to charges of violations of human rights. Though if Mr. Hilo was to be arrested, he too would then be charged with the President General.
Crawford J., 2006, The Creation of States in International Law, 2nd edn, Oxford
Dinstein Y, (2005), War, Aggression and Self-Defense, 4th edn, Cambridge
International Court of Justice Reports, (ICJ, 2004), p. 1307
Malcolm N. Shaw, 2008, International Law, Cambridge University Press, ISBN 978-0-521-
Rehman J, 2002, International Human Rights Law, London
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