9B - Grotius Centre for International Legal Studies

TELDERS INTERNATIONAL LAW MOOT COURT COMPETITION 2012 

WRITTEN MEMORIAL ON BEHALF OF 

THE UNITED STATES OF MERSEYSTAN 

(RESPONDENT) 

IN 

THE CASE CONCERNING THE REPUBLIC OF NORTH MANCONIA 

(NORTH MANCONIA v THE UNITED STATES OF MERSEYSTAN) 

Registration Number: 9-III B

(a) Table of Contents 

i 

(a) Table of Contents ......................................................................................................................... i 

(b) List of Abbreviations ................................................................................................................ iii 

(c) List of Sources ........................................................................................................................... vi 

(d) Statement of Relevant Facts .................................................................................................... xiv 

(e) Issues ......................................................................................................................................... xx 

(f) Summary of Arguments ........................................................................................................ xxiii 

(g) Jurisdiction of the Court ........................................................................................................ xxvi 

(h) Arguments .................................................................................................................................. 1 

I. USM HAS JURISDICTION OVER THE ACTS COMMITED BY MR NEVILLE, 

REGARDLESS OF THE FACT THAT THEY WERE COMMITTED OUTSIDE USM 

TERRITORY AND THAT THEY DID NOT INVOLVE USM NATIONALS DUE TO THE 

NATURE OF THE CRIMES ........................................................................................................... 1 

A. THE PRINCIPLES OF PREVENTION AND PUNISHMENT OF INTERNATIONAL 

CRIMES - THE BEDROCK OF INTERNATIONAL CRIMINAL LAW AND 

FUNDAMENTAL PRINCIPLES OF INTERNATIONAL LAW ............................................... 1 

B. THE PRINCIPLE OF UNIVERSAL JURISDICTION FOR INTERNATIONAL CRIMES 

EXERCISED BY NATIONAL COURTS ORIGINATES FROM THE PRACTICE OF 

STATES AND GENERAL PRINCIPLES OF INTERNATIONAL LAW. ................................ 2 

1. The elements required for the establishment of universal jurisdiction over international 

crimes as a rule of customary international law are met ........................................................... 4 

a. There is an established and widespread state practice in the matter at hand ................... 5 

b. Opinio juris exists in favour of universal jurisdiction ...................................................... 7 

C. USM DID NOT INFRINGE RNM’S SOVEREIGNTY ........................................................ 8 

II. USM HAS NOT VIOLATED THE IMMUNITY FROM CRIMINAL JURISDICTION OF 

MR NEVILLE, A SERVING MINISTER IN THE RNM GOVERNMENT................................ 10 

A. AS RNM IS NOT PARTY TO THE VIENNA CONVENTION ON DIPLOMATIC 

RELATIONS AND OTHER CONVENTIONS, GENERAL INTERNATIONAL LAW 

SHALL BE APPLIED ................................................................................................................ 10 

B. MR NEVILLE WAS NOT ENJOING IMMUNITY RATIONE PERSONAE ...................... 10

ii 

C. EVEN IF, ARGUENDO, MR NEVILLE ENJOYS IMMUNITY FROM CRIMINAL 

JURIDICTION, SUCH IMMUNITY IS PRECLUDED BY COMMITTING CRIMES UNDER 

INTERNATIONAL LAW .......................................................................................................... 13 

D. MR NEVILLE WAS NOT PART OF A SPECIAL MISSION ............................................ 16 

III. THE COURTS OF USM HAVE JURISDICTION OVER MR NEVILLE REGARDLESS 

OF THE METHOD BY WHICH HE WAS BROUGHT BEFORE THE COURT ....................... 18 

A. USM COURTS’ JURISDICTON IS NOT AFFECTED BY THE STATE-SPONSORED 

EXTRATERRITORIAL ABDUCTION .................................................................................... 18 

1. Male captus bene detentus, an applicable principle of law. ............................................... 18 

2. State practice is in support of male captus bene detentus principle ................................... 19 

3. Customary international law incorporates exceptions to the prohibition against 

extraterritorial abduction ......................................................................................................... 22 

B. USM ACTIONS DID NOT INFRINGE RNM’S SOVEREIGNTY ..................................... 23 

i) Submissions ................................................................................................................................ 25

(b) List of Abbreviations 

iii 

AFRM - The Armed Forces of the Republic of Manconia 

AJIL - American Journal of International Law 

Art - Article 

CSM - Convention on Special Missions 

DCCAPSM - Draft Code of Crimes Against the Peace and Security of Mankind 

Doc - Document 

Ed - editor 

Ed - edition 

EJIL - European Journal of International Law 

Et al - et alii 

EU - European Union 

Genocide Convention - Convention on the Prevention and Punishment of the Crime of Genocide 

ICJ - International Court of Justice 

ICTR - International Criminal Tribunal for Rwanda 

ICTY - International Criminal Tribunal for the former Yugoslavia 

ILA - International Law Association

ILC - International Law Commission 

KNM - The Keanos of North Manconia 

No - Number 

Para - Paragraph 

PCIJ - Permanent Court of International Justice 

RoM - The Republic of Manconia 

RNM - The Republic of North Manconia 

SC - Security Council (United Nations) 

Ser - Series 

Sess - Session 

UK - United Kingdom of Great Britain and Northern Ireland 

UN - United Nations 

UNLC - United Nations Law Commission 

UNCSM – United Nations Convention on Special Missions 

UNGA - United Nations General Assembly 

UNSC - United Nations Security Council 

USA - United States of America 

iv

USM - United States of Merseystan 

VCRD - Vienna Convention on Diplomatic Relations 

V - Versus 

Vol - Volume 

v

(c) List of Sources 

1. International Agreements 

vi 

Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, hereinafter cited as: UN 

Charter 

Convention on Special Missions, 9 December 1969, 1400 UNTS 231, hereinafter cited as: 

Convention on Special Missions 

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 

UNTS 277, hereinafter cited as: Genocide Convention 

Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, hereinafter cited 

as: RSICC 

Statute of the International Court of Justice, 26 June 1945, 1 UNTS XVI, hereinafter cited as: 

ICJ Statute 

Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, UN Doc 

S/RES/827 (1993), hereinafter cited as: ICTY Statute 

Statute of the International Criminal Tribunal for Rwanda, SC Res 955, UN Doc S/RES/955 

(1994), hereinafter cited as: ICTR Statute 

Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331, hereinafter cited as: VCLT 

2. Judicial Decisions 

2.1 Permanent Court of International Justice 

The Case of the S.S. “Lotus” (France v Turkey) (1927) PCIJ (Ser A) No 10, hereinafter cited as: 

Lotus Case 

2.2 International Court of Justice (cases, opinions, declarations, pleadings) 

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v 

Belgium, [2002] ICJ Rep 3 hereinafter cited as: Arrest Warrant Case 


Belgium, Joint Separate Opinion of Judges Higgins, Koojimans and Buergenthal, [2002] ICJ Rep 

63, hereinafter cited as : Joint Separate Opinion of Higgins, Koojimans & Buergenthal (2002)

vii 


Belgium, Separate Opinion of Judge Koroma, [2002] ICJ Rep 59, hereinafter cited as: Separate 

Opinion of Koroma (2002) 

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), [2008], ICJ 

Rep 177, hereinafter cited as: Djibouti v France 

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), “Oral argument 

of Alain Pellet” (25 January 2008), online: ICJ www.icj-cij.org 

Jurisdictional Immunities of the State (Germany v Italy), ICJ Press Release No. 2008/44 (23 

December 2008) online: ICJ www.icj-cij.org, hereinafter cited as: Jurisdictional Immunities of 

the State 

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of 

America), [1984] ICJ Rep 14, hereinafter cited as: Nicaragua Case (1984) 

Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain 

and Northern Ireland and United States of America), [1954] ICJ Rep 19 

North Sea Continental Shelf Case (Federal Republic of Germany v Denmark and The 

Netherlands), [1969] ICJ Rep 3, hereinafter cited as: North Sea Continental Shelf Case 

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, 

hereinafter cited as: Nuclear Weapons Advisory Opinion 

2.3 International Criminal Tribunal for former Yugoslavia 

Prosecutor v Radislav Krstic, IT-98-33-T, Judgement (2 August 2001) (ICTY, Trial Chamber) 

online: ICTY www.icty.org, hereinafter cited as: Krstic Case 

Prosecutor v Kupreskic, IT-95-16-T, Judgement (14 January 2000) (ICTY: Trial Chamber) 

online: ICTY www.icty.org, hereinafter cited as: Prosecutor v Kupreskic 

Prosecutor v Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for interlocutory 

Appeal on Jurisdiction, (2 October 1995) (ICTY, Trial Chamber) online: ICTY www.icty.org, 

hereinafter cited as: Tadic Case 

Prosecutor v Mrksic, Radic, Sljivancanin & Dokmanovic, IT-95-13/1-T, Judgement (27 

September 2007) (ICTY, Trial Chamber ) online: ICTY www.icty.org, hereinafter cited as: 

Prosecutor v Mrksic, Radic, Sljivancanin & Dokmanovic 

Prosecutor v Anto Furundzija, IT-95-17/1-T, Judgement (10 December 1998) (ICTY, Trial 

Chamber) online: ICTY www.icty.org, hereinafter cited as: Prosecutor v Furund

viii 

2.4 International Criminal Tribunal for Rwanda 

Prosecutor v Jean-Paul Akayesu, ICTR-96-4-T, Judgement (2 September 1998) (ICTR, Trial 

Chamber I) online: ICTR www.ictr.org, hereinafter cited as: Akayesu Case 

Prosecutor v Ntuyahaga, ICTR-98-40-T, Decision on the Prosecutor's Motion to Withdraw the 

Indictment (18 March 1999) (ICTR, Trial Chamber I) online: ICTR www.ictr.org, hereinafter 

cited as: Ntuyhaga Case 

2.5 European Court of Human Rights 

Al-Adsani v United Kingdom, No. 35763/97, [2002] 34 ECHR 273, hereinafter cited as: Al- 

Adsani v United Kingdom 

2.6 National Jurisprudence 

Attorney General of the Government of Israel v Eichmann, 36 ILR 277 (Supreme Court of Israel, 

29 May 1962), hereinafter cited as: Eichmann Case 

Demjanjuk v Petrovsky, 776 F.2d 571 (The United States 6 th Circuit, Ohio,17 November 1993), 

hereinafter cited as: Demjanjuk v Petrovsky 

Ex parte Susannah Scott, 9 B&C 446, 109 ER 166 (United Kingdom King’s Bench Divisional 

Court, 1 January 1829), hereinafter cited as: Ex parte Susannah Scott 

Federal Republic of Germany v Giovanni Mantelli and Others, Order No. 14201/2008 (Italian 

Court of Cassation, 2009), hereinafter cited as: FRG v Mantelli and Others 

Ferrini v Federal Republic of Germany, Decision No. 5044/2004 (Italian Court of Cassation, 11 

March 2004), hereinafter cited as: Ferrini v Federal Republic of Germany 

Frisbie v Collins, 342 US 519 (The United States Supreme Court, 1 January 1952), hereinafter 

cited as: Frisbie v Collins 

Ker v Illinois , 119 US 436 (Supreme Court of the United States, 6 December 1886), hereinafter 

cited as: Ker v Illinois 

Prefecture of Voiotia v Federal Republic of Germany, Case No. 11/2000 (Hellenic Supreme 

Court, 4 May 2000), hereinafter cited as: Prefecture of Voiotia v Federal Republic of 

Germany 

Re Argoud, 45 ILR 90 (The Court of Cassation of France, 4 June 1964), hereinafter cited as: Re 

Argoud 

Re Bo Xilai, 128 ILR 713 (United Kingdom Bow Street Magistrates’ Court, 8 November 2005), 

hereinafter cited as: Re Bo Xilai

ix 

Re General Shaul Mofaz, 53 ICLQ 771 (United Kingdom Bow Street Magistrates’ Court, 12 

February 2004), hereinafter cited as: Re General Shaul Mofaz 

Siderman de Blake v Republic of Argentina, 965 F.2d 699 (The United States Court of Appeal for 

the 9th Circuit, 22 May 1992), hereinafter cited as: Siderman de Blake v Republic of 

Argentina 

The Schooner Exchange v McFaddon, 11 US 116 ( The United States Supreme Court, 2 March 

1812), hereinafter cited as: The Schooner Exchange v McFaddon 

United States, Petitioners v Humberto Alvarez-Machain, 504 US 566 ( The United States 

Supreme Court, 5 June 1992), hereinafter cited as: United States v Alvarez-Machain 

United States v Verdugo-Urquidez, 494 U.S. 259 ( The United States Supreme Court, 28 

February 1990), hereinafter cited as: United States v Verdugo-Urquidez 

United States v Sissoko, 121 ILR 599 (United States District Court, Florida Southern District, 

1997), hereinafter cited as: USA v Sissoko 

Ndhlovu & Another v Minister of Justice & Others, 68 ILR 7 (South African District Court, Natal 

Provincial Division,1976), hereinafter cited as: Ndhlovu & Another v Minister of Justice & 

Others 

3. UN documents 

3.1 Security Council Resolutions 

Question relating to the case of Adolf Eichmann, SC Res. 138, UN SCOR, 15th Sess., 868 th mtg, 

UN Doc. S/4349 (1960), hereinafter cited as: SC Res 138 (1960) 

3.2 International Law Commission 

International Law Commission, Immunity of State officials from foreign criminal jurisdiction 

from foreign criminal jurisdiction, Memorandum by the Secretariat, UNGAOR, UN Doc 

A/CN.4/596 (2008), hereinafter cited as: ILC 2 

International Law Commission, Preliminary report on immunity of State officials from foreign 

criminal jurisdiction, UNGAOR, UN Doc A/CN.4/601, (2008) hereinafter cited as: ILC 1 

International Law Commission, Report of the Commission to the General Assembly on the work 

of its forty-eight Session, in Yearbook of International Law Commission 1996, vol. II, part 2 ( 

New York and Geneva, UN, 1998), UN Doc A/CN.4/SER.A/1996/Add.l, hereinafter cited as: 

DCCAPSM 

International Law Commission, Yearbook of the International Law Commission 1950, vol II 

(New York: UN, 1957), UN Doc A/CN.4/SER.A/1950/Add.I

3.3 Other 

x 

United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an 

International Criminal Court, Bureau Proposal, UN Doc A/CONF 183/C 1/L 59, (1998), 

hereinafter cited as: UNDCPEICC 

4. Literature 

4.1 Books and Treatises 

American Law Institute, Restatement of the Law, Third, The foreign Relations Law of the United 

States (Minnesota: American Law Institute, 1986), hereinafter cited as: American Law Institute 

(1986) 

Anthony Aust, Handbook of International Law, 1 st ed (Cambridge: Cambridge University 

Press,2005), hereinafter cited as: Aust (2005) 

Antonio Cassese, “International Criminal Law” in Malcolm D. Evans, ed, International Law,2 nd 

ed. (Oxford: Oxford University Press, 2006) , hereinafter cited as: Cassese (2006) 

Clive Parry et al, Parry and Grant Encyclopedic Dictionary of International Law, (New York: 

Oceana, 1986), hereinafter cited as: Parry and Grant (1986) 

Malcolm D. Evans, International Law, 2 nd ed (Oxford: Oxford University Press, 2006), 

hereinafter cited as: Evans (2006) 

Frederick Alexander Mann, “Reflections on the Prosecution of Persons Abducted in Breach of 

International Law” in Yoram Dinstein, ed, International Law at a Time of Perplexity: Essays in 

Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff,1998) at 407, 414, hereinafter cited as: 

Mann (1998) 

Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, (Cambridge 

University Press, 2010), hereinafter cited as: Solis (2010) 

Hazel Fox, The Law of State Immunity, (New York: Oxford University Press, 2002), hereinafter 

cited as: Fox (2002) 

Hazel Fox, “International Law and restraints on the exercise of jurisdiction by national courts of 

States” in Malcolm D. Evans, ed, International Law, 2 nd ed (Oxford: Oxford University Press, 

2006), hereinafter cited as: Fox (2006) 

Hugh Thirlway, “The sources of international law” in Malcolm D. Evans, ed, International Law, 

2 nd ed ( Oxford: Oxford University Press, 2006), hereinafter cited as: Thirlway 

Cherif Bassiouni & Edward M. Wise, Aut dedere aut judicare: The Duty to Extradite or 

Prosecute in International Law (London: Martinus Nijhoff, 1995), hereinafter cited as: Bassiouni 

and Wise (1995)

UN, The Work of the International Law Commission, 6th ed, vol. I (New York: UN, 2004) 

xi 

Vaughan Lowe, “Jurisdiction” in Malcolm D. Evans, ed, International Law, 2 nd ed (Oxford: 

Oxford University Press, 2006), hereinafter cites as : Lowe (2006) 

Yitiha Simbeye, Immunity and International Criminal Law (Vermont: Ashgate, 2004), 

hereinafter cited as: Simbeye (2004) 

4.2 International Law Journals 

Alexander Orakhelashvili, “International Decisions: Arrest Warrant case” (2002) 96 AJIL 677, 

hereinafter cited as: Orakhelashvili (2002) 

Alexander Orakhelashvili, “State Immunity and Hierarchy of Norms: Why the House of Lords 

Got it Wrong” (2007) 18 EJIL 955, hereinafter cited as: Orakhelashvili (2007) 

Alexander Orakhelashvili, “State Immunity and International Public Order” (2002) 43 German 

Yrbk Int'l L 227, hereinafter cited as: Orakhelashvili 2 (2002) 

Alexander Orakhelashvili, “State Immunity in National and International Law: Three Recent 

Cases Before the European Court of Human Rights” (2002) 15 Leiden J Int'l L 703, hereinafter 

cited as: Orakhelashvili 3 (2002) 

Andrea Bianchi, “Denying State Immunity to Violators of Human Rights” (1994) 46 Austrian J 

Public and Int'l L 195, hereinafter cited as: Bianchi (1994) 

Andrea Bianchi, “Immunity Versus Human Rights: The Pinochet Case” (1999) 10 EJIL 254, 

hereinafter cited as: Bianchi (1999) 

Andrew Calica, “Self-Help Is The Best Kind: The Efficient Breach Justification for Forcible 

Abduction of Terrorists” (2004) 37 Cornell Int’l LJ 389, hereinafter cited as: Calica (2004) 

Anthony J. Colangelo, “The New Universal Jurisdiction: In Absentia Signalling Over Clearly 

Defined Crimes” (2005) 36 Geo J Int'l L 537, hereinafter cited as: Colangelo (2005) 

Anthony Sammons, “The “Under-Theorization” of Universal Jurisdiction: Implications for 

Legitimacy on Trials of War Criminals by National Courts” (2003) 21 Berkeley J. Int'l L. 111, 

hereinafter cited as: Sammons (2003) 

Aparna Sridhar, “The International Criminal Tribunal for the Former Yugoslavia's Response to 

the Problem of Transnational Abduction” (2006) 42 Stan J Int'l L 34, hereinafter cited as: 

Sridhar (2006) 

Arthur Watts, “The Legal Position in International Law of Heads of States, Heads of Government 

and Foreign Ministers” (1994) 247 R des Cours 56, hereinafter cited as: Watts (1994) 

Cherif Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and 

Contemporary Practice” (2001) 42 VA. J. Int’l L. 81, hereinafter cited as: Bassiouni (2001)

xii 

Adam C. Belsky et al “Implied Waiver Under the FSIA: A Proposed Exception to Immunity for 

Violations of Peremptory Norms of International Law” (1989) 77 California LR 365, hereinafter 

cited as: Belsky, Merva, and Roht-Arriaza (1989) 

Brent Wible, “De-Jeopardizing Justice: Domestic Prosecutions for International Crimes and the 

Need for Transnational Convergence” (2002) 31 Denv J Int’l & Pol’y 265, hereinafter cited as : 

Wible (2002) 

Christopher D. Totten, “Head-of-state and Foreign Official Immunity in the United States after 

Samantar: a suggested approach“ (2011) 34 Fordham Int'l L.J. 332, hereinafter cited as: Totten 

(2011) 

Dapo Akande & Sangeeta Shah, “Immunities of State Officials, International Crimes, and 

Foreign Domestic Courts” (2010) 21 EJIL 815, hereinafter cited as: Akande & Shah (2010) 

Johan D. van der Vyver, ”Prosecution and Punishment of the Crime of Genocide “ (1999) 23 

Fordham Int’l L.J. 286, hereinafter cited as: Johan D. van der Vyver (1999) 

Kate Parlett, “Immunity in Civil Proceedings for Torture: the Emerging Exception” (2006) 1 

EHRLR 49, hereinafter cited as: Parlett (2006) 

Lee A. Steven, “Genocide and the Duty to Extradite or Prosecute: Why the United States is in 

Breach of Its International Obligations” (1999) 39 Va J Int'l L 425, hereinafter cited as: Steven 

(1999) 

Magdalini Karagiannakis, “State Immunity and Fundamental Human Rights” (1998) 11 Leiden J 

Int'l L 9, hereinafter cited as: Karagiannakis (1998) 

Mark A. Summers, “Diplomatic Immunity Ratione Personae: Did the International Court of 

Justice Create a New Customary Rule in Congo v Belgium?” (2007) 16 Mich St J Int'l L 459, 

hereinafter cited as: Summers (2007) 

Mary Alice Kovac, “Apprehension of War Crimes Indictees: Should the United Nations' Courts 

Outsource Private Actors to Catch Them?” (2002) 51 Cath UL Rev 619, hereinafter cited as: 

Kovac (2002) 

Mathias Reimann, “A Human Rights Exception to Sovereign Immunity: Some Thoughts on Prinz 

v Federal Republic of Germany” (1995) 16 Mich J Int'l L 413, hereinafter cited as: Reimann 

(1995) 

Matteo M. Winkler, “When "Extraordinary" Means Illegal: International Law and European 

Reaction to the United States Rendition Program” (2008) 30 Loy LA Int'l & Comp L Rev. 33, 

hereinafter cited as: Winkler (2008) 

Michael Byers, “Comment on Al-Adsani v Kuwait” (1996) 67 British Yrbk Int'l L 537, 

hereinafter cited as: Byers (1996)

xiii 

Michael J. Kelly, “Cheating Justice by Cheating Death: The Doctrinal Collision for Prosecuting 

Foreign Terrorists – Passage of Aut Dedere Aut Judicare into Customary Law & Refusal to 

Extradite Based on the Death Penalty” (2003) 20 Ariz J Int'l & Comp Law 491, hereinafter cited 

as: Kelly (2003) 

Mizushima Tomonori, “TheIindividual as Beneficiary of State Immunity: Problems of the 

Attribution of Ultra Vires Conduct” (2001) 29 Denver J of Int’l L 261, hereinafter cited as: 

Tomonori (2001) 

Patrick M. Hagan , “Government Sponsored Extraterritorial Abductions in the New World order: 

The Unclear Role of International Law in United States Courts and Foreign Policy” (1994) 17 

Suffolk Transnat'l L Rev 438, hereinafter cited as: Hagan (1994) 

Phillip A. Seymour, “The Legitimacy of Peacetime Reprisal as a Tool Against State Sponsored 

Terrorism” (1990) 39 Naval L Rev 221, at 234, hereinafter cited as: Seymour (1990) 

Michael W. Reisman, “Editorial Comment, Coercion and Self-Determination: Construing Charter 

Article 2(4)” (1984) 78 AJIL 642, hereinafter cited as: Reisman (2004) 

5. Miscellaneous 

Linda M. Keller, “Belgian Jury to Decide Case Concerning Rwandan Genocide by May 2001” 

(May 2001), American Society of International Law Insights, online: 

http://www.asil.org/insights/insigh72.htm, hereinafter cited as: Keller (2001) 

“Bosnia: Capture of War Crimes Suspect Could be Ruled Illegal” (18 August 2000) United 

Nations Foundation, online: http://www.unfoundation.org/unwire/archives/UNWIRE000818.cfm 

Heidi Altman, “The Future of Head of State Immunity: the Case against Ariel Sharon” ( April 

2002), online: Indict Sharon www.indictsharon.net/heidialtman-apr02.pdf, hereinafter cited as: 

Altman 

Marc Henzelin, “Universal Jurisdiction” at http://www.enotes.com/universal-jurisdictionreference/universal-jurisdiction, 

hereinafter cited as: Henzelin 

The case of North Manconia hereinafter cited as: The Case

(d) Statement of Relevant Facts 

xiv 

The United States of Merseystan (USM), due to its status as former colonial power can be 

regarded as an important actor in the region and as a result has a moral duty in aiding the new 

emerging entities, former colonies of USM, in their development and their pursuit of statehood. 

The Republic of Manconia (RoM) is such a State. RoM achieved its independence on 5 July 1965 

and joined the UN one year later on 1 st of February. The newly formed republic is a multi-ethnic 

State with a population of 10 million out of which 62% represent the Blue community, 

concentrated in the south, with the capital at Blueburg, and the Reds, representing 28% of the 

population, found mainly in the north, Redville being the most important city in the region. 

As expected, after independence, tensions between the aforementioned ethnic groups 

emerged and developed, the Reds being constantly overlooked by the Blue-dominated 

government. These events lead to the establishment in 1992 of an armed group, The Keanos of 

North Manconia (KNM), who would lead the insurrectionary movement of the Red group. The 

efforts of the Red community led to a Declaration of Independence on 5 of July 1999, therefore 

the precursory steps that would lead to the creation of a new state, The Republic of North 

Manconia (RNM) were made. The event immediately lead to armed clashes between the Keanos, 

who acted in their capacity of representatives of the newly formed republic and its interests and 

the Armed Forces of the Republic of Manconia (AFRM). USM was the only international actor 

who acted in order to assure the protection of the newly formed State, and brought the matter 

before the UNSC. This action of USM sparked the international community’s attention and with 

the help of the UN, after almost a decade of negotiations, RNM obtained a peaceful secession 

from RoM, became the world’s 193 rd State on 5 July 2008 and joined the UN on 7 December 

2008. However, the new State, which is comprised of 35% of the overall territory and 34% of the

xv 

overall population of RoM (approximately 3.4 million people), brought a significant shift in 

respect to the ethnic balance of the population. The Blues became the minority, representing only 

20% of the population (approximately 680 000 people), and frightened by possible reprisals from 

the newlyformed Red dominated regime, fled to neighbouring countries, approximately 50 000 

people sought refuge in USM. As a result, even before the start of the genocide, USM already felt 

the burden of the newly formed state of RNM. 

Due to Blueburg’s neglect prior to the date when RNM obtained its statehood, the new 

State had to face severe economic, social and security problems, due to the refusal of thousands 

of former KNM members to hand over their weapons. The situation in the State became worse 

and in consequence, President Michael Glazer became confronted with a spiralling crime-rate and 

protests. Thus, immediately after the first anniversary of the new Republic, the President visits 

the neighbouring State of Orangestan to seek financial assistance to develop RNM, which he 

obtains from the President of Orangestan who pledges 2$ billion. 

The event that triggered the genocide in North Manconia was the suspicious death of 

President Glazer on 10 of July 2009, after he attended a dinner organised by members of the Blue 

community the day before the scheduled return to RNM. Despite the tension that emerged 

between the Reds and the Blues in RNM, President Glazer is buried without an autopsy, therefore 

fuelling the latent conflict. Regardless the fact that the RoM government quickly and vigorously 

denies any involvement, Blues in RNM are targeted, and by 18 of July 2009 scores of unarmed 

Blues are killed and hundreds beaten around the capital of Redville. By 25 July the attacks have 

spread across the country.

xvi 

One of the most important actors in this apocalyptic scenario was Mr Gerry Neville. In his 

quality of disk jockey, known as “DJ Red Nev”, at the radio station Fergietime FM, 

enthusiastically and constantly orders his listeners to “squash the Blues”, the choice of words 

being eloquent for the hatred inspired and the consequences that it produces. On numerous 

occasions between 28 of July and 15 of August 2009, he relays information regarding precise 

addresses where Blues are living or working and orders his listeners that they be “fried”, 

“roasted”, “squashed”, and “eliminated”. This method of inciting to genocide is proved to be an 

effective means of directing attacks against Blues, therefore these attacks spread vigorously 

across the country, the main targets being innocent unarmed Blue ethnic civilians. 

Throughout the crisis in RNM, the USM government frequently issued “Expressions of 

Real Concern” and lobbied for robust action by the UN Security Council, however, due to 

internal issues, USM did not intervene militarily in RNM. 

The atrocities carried on in RNM, triggering the concern of the Security Council, which 

adopts two Resolutions (Resolution 3778(2009) and Resolution 3782(2009)) showing its gravest 

concern in the matter and expressing its outrage on the fact that the perpetrators of these killings 

have been able to operate and continue operating within RNM with impunity. Also, it clearly 

states that the crimes carried out in RNM are crimes punishable under international law. The 

UNSC determined that the situation in RNM constitutes a threat to peace and security in the 

region and therefore demands the parties to the conflict to cease the hostilities immediately. 

There is no clear reaction from RNM after the first resolution adopted by UNSC, on the 

contrary, the violence continues even after the second resolution. By 15 August 2009, the 

systematic attacks on Blues within RNM have reduced their population within that country from

xvii 

600 000 to 70 000 people (a reduction of 88.3% of the population), with the number of deaths 

estimated to 320 000, while 200 000 Blues fled to neighbouring countries, including USM. 

In defiance of the international reaction and of the presence of the AFRM forces in RNM, 

sent by the Blueburg government in order to protect the Blues still living in the country, the 

efforts to “eliminate” the Blues still continue. However, the sharp reduction of the numbers of 

Blue ethnics and the presence of the AFRM lead to a reduction in the number of attacks. 

The switch that ceased the killings was the threats of economic sanctions issued by the 

UN and EU. The Red regime agrees to a cease-fire and peace talks mediated by the UN 

Secretary-General, which started on 1 st of September 2009. An agreement is reached on 20 

October 2009 with the following consequences: a new government is formed which comprises 

mostly Reds but a few leading members of the Blue community are accepted as well. These 

leaders had to be persuaded to return. The fact that a limited number of AFRM soldiers remained 

in RNM territory for a period of 6 months was a decisive factor. The idea of an international 

tribunal that would prosecute persons accused of involvement in the genocide was strongly 

resisted by the Reds. However in the end an agreement is reached to establish a hybrid UN-RNM 

Tribunal. 

The zenith of RNM’s protective behaviour regarding the most important actors that might 

face prosecutions of Reds for crimes of genocide was the appointment of Mr Gerry Neville as 

Minister for Culture, Media and Sport. 

In February 2010 a new government takes office in USM and resolves to take action 

regarding the crimes which had been committed in RNM in July-August 2009. USM has been a 

party to the 1948 Genocide Convention since 1968 and its law includes the 2002 Genocide Act

xviii 

that condemns the crime of instigation to Genocide, wherever committed. On the basis of this 

legislation and in the face of increasing pressure from the Blue groups, demanding justice, USM 

prosecutors open domestic criminal proceedings against Mr Neville for the crime of inciting 

genocide. RNM refuses USM’s request for extradition. Proceedings against Mr Neville, initiated 

by representatives of the Blue community in RNM, are struck out on the basis that under 

domestic law Ministers of State have immunity from civil action. In addition, no progress has 

been made with the establishment of the hybrid UN-RNM tribunal. 

In May 2011, Mr Neville is invited to attend the annual Regional Culture Ministers’ 

meeting in Orangestan in his ministerial capacity, scheduled to take place between 12 - 14 of 

May. In order to seize the opportunity to arrest Mr Neville, USM explores the possibility by 

contacting the government of Orangestan to arrest Mr Neville and extradite him to USM. The 

president of Orangestan, conscious of the delicate ethnic balance in his country, is reluctant to get 

involved, and ultimately refuses to arrest Mr Neville. After exploring every diplomatic avenue, 

the government of USM decides to send a Special Forces unit on 12 May 2011 to seize Mr 

Neville and bring him to USM for prosecution. The mission proves to be a success and two days 

later he is brought before a local magistrate in Shanklyville, the capital of USM. Bail is refused. 

Orangestan does not register any kind of complaint, officially or otherwise, regarding this 

action. Conversely, the government of RNM is outraged and registers strong protests with USM 

directly and with the UNSC, demanding the immediate release of Mr Neville and his return to 

Redville. With the assistance of the local RNM consulate, Mr Neville appeals to the USM 

Supreme Court, on the grounds of USM’s lack of jurisdiction over his crimes, his ministerial 

immunity and the manner in which he was brought before the court. On 3 April 2012, the appeal

xix 

is rejected and the case is sent back to the criminal court of first instance, with the trial date being 

set for 5 May 2012. 

In consequence, RNM institutes proceedings against USM before the ICJ in order for the 

Court to find that USM lacks jurisdiction over the acts of instigation to genocide, punishable 

under USM law and international law.

(e) Issues 

xx 

USM asks the honourable Court the following questions: 

A. Does USM have jurisdiction over the crime of instigation to genocide committed by Mr 

Neville during the atrocities that were carried out in RNM between 28 July and 15 August 

2009? 

I. Did USM break any international law norm by acting pursuant to the principles of 

prevention and punishment of international crimes in exercising its jurisdiction? 

II. Have the requirements for establishing the principle of universal jurisdiction over jus 

cogens crimes as customary international law been met? 

1. Is the principle of universal jurisdiction applicable for international crimes? 

2. Is State practice sufficiently constant and widespread? 

3. Is there opinio juris in this matter? 

III. If the principle of universal jurisdiction is recognised, did USM infringe RNM’s 

sovereignty by prosecuting Mr Neville under USM internal law? 

1. Are Mr Neville’s crimes of national or international concern? 

2. Did RNM fulfil its obligations towards its citizenry and the international 

community? 

3. If not, does this mean that RNM was not capable of exercising its sovereignty and 

it automatically triggers the obligation of the international community to 

intervene? 

4. Are USM’s actions under this premises legitimate under international law?

xxi 

B. Has USM violated the immunity from criminal jurisdiction of Mr Neville, a serving 

Minister in the RNM government? 

I. Is the Vienna Convention on Diplomatic Relations applicable? 

1. Shall this case be judged based on international custom alone? 

II. Is Mr Neville enjoying immunity from criminal jurisdiction? 

1. Is Mr Neville enjoying immunity ratione personae? 

2. Does the activity of a Minister of Culture have a direct impact on the sovereign 

and independent functioning of the State on an international level? 

III. If Mr Neville enjoys immunity from criminal jurisdiction, is such an immunity 

precluded by committing crimes under international law? 

1. Can international crimes be regarded as sovereign acts? 

2. Is the state immunity applied only in respect of sovereign acts? 

3. Do jus cogens norms prohibit genocide? 

4. Do jus cogens norms prevail over the rules of international law providing 

immunity? 

IV. Was Mr Neville part of a special mission in his visit to Orangestan? 

1. Do “Special Missions” represent a part of customary international law ?

xxii 

C. Does the method by which Mr Neville was brought before the USM’s national court 

affect in any way USM’s jurisdiction? 

I. Is the principle of male captus bene detentus a principle under international law? 

1. Does the honourable Court find that the necessary requirements for the 

establishment of the aforementioned principle have been met? 

2. Under this principle, is USM’s exercise of jurisdiction legitimate? 

II. If the principle of male captus bene detentus is not acknowledged as a principle of 

general law does Customary international law incorporate exceptions on the prohibition 

against extraterritorial abduction? 

1. Is there an exception for abducting perpetrators of jus cogens crimes in order to 

stand trial? 

2. Are USM’s acts legitimate under the effective breach doctrine? 

III. Did USM infringe RNM’s sovereignty by kidnapping Mr Neville? 

1. Did USM infringe RNM’s territorial sovereignty? 

2. Can RNM claim the breach of its sovereignty as an effect of Mr Neville’s 

ministerial capacity?

(f) Summary of Arguments 

xxiii 

I. USM HAS JURISDICTION OVER THE ACTS COMMITED BY MR NEVILLE, 

REGARDLESS OF THE FACT THAT THEY WERE COMMITTED OUTSIDE USM 

TERRITORY AND THAT THEY DID NOT INVOLVE USM NATIONALS, DUE TO 

THE NATURE OF THE CRIMES. 

(1) USM acted pursuant to the principles of prevention and punishment of international 

crimes, which constitute the bedrock of international criminal law and are regarded as 

fundamental principles of international law. Furthermore, RNM’s protective attitude towards Mr 

Neville, a criminal under international law, proves RNM’s lack of good faith and stubbornness to 

obstruct justice. 

(2) USM’s jurisdiction is exercised under the customary international law of universal 

jurisdiction, accordingly this principle grants jurisdiction to USM to prosecute Mr Neville for the 

crimes of inciting to genocide regardless of the territory where the crimes were committed or the 

nationality of the perpetrator. 

(3) The elements required for the establishment of universal jurisdiction as a rule of 

customary international law are met as there is a fixed and widespread practice of States in the 

matter at hand as it will be shown. 

(4) The consistent state practice led the development of opinio juris in favour of universal 

jurisdiction. 

(5) The problem of sovereignty cannot be raised as RNM was not capable of dealing with the 

crimes exercised on its territory, or with the prosecution of the criminals, and, in consequence, 

RNM ceased a portion of its sovereignty to the international community, which is obliged to 

intervene. USM acted in order to punish the horrific crimes committed as RNM was not only 

incapable of effectively implementing justice but was obstructing the process of justice itself.

xxiv 

II. USM HAS NOT VIOLATED THE IMMUNITY FROM CRIMINAL JURISDICTION 

OF MR NEVILLE, A SERVING MINISTER IN THE RNM GOVERNMENT 

(6) As RNM is not a party to the Vienna Convention on Diplomatic Relations, or any other 

conventions for that matter, general international law shall be applied. As international custom 

represents the basic source of international law in the sphere of immunity from criminal 

jurisdiction and in absence of any general convention of immunity of State officials, this case 

should be tried on the basis of international custom. 

(7) Mr Neville was not enjoying immunity ratione personae. Mr Neville, as a serving 

Minister of Culture, Media and Sport, does not activate in the domain of State sovereignty and 

independence, rather his attributes are domestic ones. Consequently, he does not benefit of 

immunity ratione personae from criminal jurisdiction. 

(8) Even if, arguendo, Mr Neville enjoys immunity from criminal jurisdiction, such 

immunity is precluded by committing crimes under international law. State immunity applies 

only in respect of sovereign acts and that kind of international crimes, particularly those contrary 

to jus cogens norms, can never be regarded as sovereign acts. 

(9) Mr Neville was not part of a Special Mission. Neither USM, nor RNM are parties to the 

Convention on Special Missions, but its provisions represent customary international law, and are 

applicable in these proceedings. Mr Neville was at an ordinary meeting, and he had not dealt with 

specific questions or tasks that are a matter of international law. Consequently, he was in a simple 

visit in his ministerial capacity.

xxv 

III. THE COURTS OF USM HAVE JURISDICTION OVER MR NEVILLE 

REGARDLESS OF THE METHOD BY WHICH HE WAS BROUGHT BEFORE THE 

COURT 

(10) The method by which Mr Neville was brought before the court does not influence in any 

form the jurisdiction of USM as a result of the principle of male captus bene detentus. 

(11) The principle of male captus bene detentus is a recognised principle of law as state 

practice led to the development of opinio juris, therefore meeting the required criteria for the 

establishment as a principle of general international law. 

(12) Even if, arguendo, the principle of male captus bene detentus would not be recognised, 

international law permits extraterritorial abductions in certain situations pursuant to the efficient 

breach doctrine or when concerned with crimes considered jus cogens. 

(13) USM was obliged to take action and acted in conformity with the efficient breach doctrine 

in order to exert its jurisdiction over Mr Neville’s acts of instigation to genocide, punishable by 

international law, under the principle of universal jurisdiction. 

(14) RNM can not claim the breach of its territorial sovereignty. 

(15) RNM can not claim the breach of its sovereignty as an effect of Mr Neville’s ministerial 

capacity as the acts that he performed are punishable under international law and the State is 

obliged under international law to deny its sovereign immunity.

(g) Jurisdiction of the Court 

xxvi 

Both the Republic of North Manconia and the United States of Merseystan are members of the 

United Nations and parties to the Statute of the ICJ. They both have accepted the jurisdiction of 

the ICJ under Article 36 (2) of the Statute of the ICJ, with no relevant reservations. On March the 

3 rd 2012, the Republic of North Manconia brought proceedings before the ICJ.

(h) Arguments 

1 

I. USM HAS JURISDICTION OVER THE ACTS COMMITED BY MR 

NEVILLE, REGARDLESS OF THE FACT THAT THEY WERE 

COMMITTED OUTSIDE USM TERRITORY AND THAT THEY DID NOT 

INVOLVE USM NATIONALS DUE TO THE NATURE OF THE CRIMES 

A. THE PRINCIPLES OF PREVENTION AND PUNISHMENT OF INTERNATIONAL 

CRIMES - THE BEDROCK OF INTERNATIONAL CRIMINAL LAW AND 

FUNDAMENTAL PRINCIPLES OF INTERNATIONAL LAW 

The prevention and punishment of international crimes constitutes the main objective of 

the international community in the matter of international law in order to maintain peace and 

security in the world. These principles deriv from art 1(1) of the UN Charter 1 , which are legally 

binding on all UN Member States, and clearly stated in the preamble of the Rome Statute of the 

International Criminal Court 2 , represent the guidelines by which the international community 

fulfils its responsibility to fight against international crimes, as it is enshrined in art 1(2) of the 

DCCAPSM 3 . 

The norms which prohibit international crimes are considered to be jus cogens. 4 

Consequently, under the principles of international criminal law each State is obliged to 

prosecute and punish international crimes and has the duty to develop a legal system that permits 

these actions 5 . On the contrary, when a State fails to do so, this task falls in the hands of the 

international community 6 and its members. 

1 UN Charter. 

2 ICC Statute. 

3 DCCAPSM. 

4 Cassese (2006) at 719. 

5 Sammons (2003).

2 

RNM has not only refused to prosecute Mr Neville for the crimes he committed which are 

punishable under international law, but continues to obstruct the process of justice, first by 

defying international law by resisting the prosecution of the criminals in the genocide by an 

international tribunal, and secondly by invoking USM’s lack of jurisdiction on the basis of the 

principles of territoriality and nationality 7 , not in order to exercise jurisdiction on its own but to 

halt the proceedings in USM. Professor Cherif Bassiouni perfectly demonstrates that a country in 

exercise of universal jurisdiction should only subordinate “to the jurisdictional claims of other 

states seeking to exercise their criminal jurisdiction when such claims are based on weightier 

interests and are sought to be exercised effectively and in good faith” 8 . As stated above, RNM 

has not made such claims, consequently, regardless of the absence of nexus between USM and 

the acts of Mr Neville, USM has not broken its legal obligations when it asserted jurisdiction 

over the accused, as it acted pursuant to the principles invoked above and in conformity with the 

principle of universal jurisdiction. 

B. THE PRINCIPLE OF UNIVERSAL JURISDICTION FOR INTERNATIONAL 

CRIMES EXERCISED BY NATIONAL COURTS ORIGINATES FROM THE 

PRACTICE OF STATES AND GENERAL PRINCIPLES OF INTERNATIONAL LAW. 

The need for universal jurisdiction is clear because of the existence of some crimes that 

are regarded as so heinous that every State has a legitimate interest in their repression 9 . Genocide 

6 Ibid. 

7 The Case at para 30. 

8 Bassiouni (2001). 

9 Lowe (2006) at 348.

3 

is unarguably one of them. USM is a party 10 to the Genocide Convention 11 and furthermore USM 

law includes the 2002 Genocide Act condemning and punishing the act of genocide “wherever 

committed”. 12 Due to the provisions of art VI of the Genocide Convention that granted 

jurisdiction over genocide to the states on which territory the crimes were committed, the 

international community had repeatedly witnessed the ineffectiveness of the limited jurisdictional 

regime provided by the Convention. Therefore the international community started to act in the 

way to open borders considered to act as a shield against the reach of the law and as a protection 

for those who trample underfoot the most elementary rights of humanity. 13 The ineffectiveness of 

the Genocide Convention, as observed not only by the doctrine but even by authorities such as 

the UNLC 14 or the ICJ in the Arrest Warrant 15 case, and its implications, aided the development 

of the principle of universal jurisdiction over jus cogens crimes and motivated the international 

community to accept the principle as customary law. This principle grants jurisdiction to USM to 

prosecute Mr Neville for the crimes of inciting to genocide 16 regardless of the territory where the 

crimes were committed or the nationality of the perpetrator. 17 


11 Genocide Convention. 


13 Johan D. van der Vyver (1999). 

14 DCCAPSM. 

15 Arrest Warrant Case. 


17 Aust (2005) at 44-45.

4 

It shall be proven further on that the international community does recognise the existence 

of the principle of universal jurisdiction and that USM’s act is legitimate under international law. 

1. The elements required for the establishment of universal jurisdiction over international 

crimes as a rule of customary international law are met 

Among the sources of law upon which the Court can draw upon, Article 38(1)(b) of the 

Statute of the ICJ 18 , offers the most authoritative definition 19 for international custom: “ evidence 

of a general practice accepted as law”. This definition has been expanded by the Court in its 

jurisprudence as follows. In the North Sea Continental Shelf case the Court stated that “[s]tate 

practice, including that of states whose interests are specially affected, should ...[be] both 

extensive an virtually uniform” 20 . Therefore, as it results from the previous statement, the 

practice required to establish a rule of customary law does not need to be the practice of every 

single state of the world 21 , and also considering the judgement of the ICJ in the case of Military 

and Paramilitary Activities in and against Nicaragua, the practice needs not to be “perfect” and 

“in absolutely rigorous conformity” 22 with the rule. 

The existing practice of States, even though in its incipient state, in the matter of 

exercising jurisdiction for international crimes by national courts under the universality principle, 

is both sufficient and convincing enough in order to give birth to a custom under international 

law. 

18 ICJ Statute. 

19 Cassese (2005) at 156. 

20 North Sea Continental Shelf Case at 43. 

21 Thirlway (2006) at 124. 

22 Nicaragua Case (1984) at 98.

a. There is an established and widespread state practice in the matter at hand 

5 

In pursuance of the application of justice, an analysis of state practice regarding the 

exercise of universal jurisdiction reveals that in many occasions nations have taken action outside 

their borders to end genocide policy or to punish perpetrators of international crimes. 

A considerable number of states have implemented legislation that allows the prosecution 

of crimes of genocide and crimes against humanity according to universal jurisdiction and even 

acted in this way. For example, Australia, Canada, Germany, The Netherlands, and, to some 

extent, Argentina, Ethiopia and Venezuela allow for judging these crimes even if they have been 

committed abroad. Switzerland, which only became a party to the Genocide Convention in 2000, 

expressly enacted a law providing for universal jurisdiction for the crime of genocide. 23 

The concept of universal jurisdiction was clearly manifested in Israel's capture and trial of 

Adolf Eichmann, a Nazi war criminal. The Israeli Supreme Court noted that, "it is precisely the 

fact that the crimes in question and their effects have extended to numerous countries that drains 

the territorial principle of all content in the present case and justifies Israel in assuming criminal 

jurisdiction by virtue of the "universal' principle". 24 The most important and noticeably was the 

reaction of the international community that had not claimed Israel’s lack of jurisdiction over 

Eichmann. 25 

23 Henzelin. 

24 Eichman Case. 

25 Henzelin.

6 

The United States protests on the possibility of exercising universal jurisdiction in the 

case of genocide, even by the ICJ 26 , a conduct intensely argued and blamed by the international 

community, which considers that USA is in breach of its international obligations 27 , is 

overshadowed by its national courts judicial practice which aided in the crystallization of this rule 

and affirmed the need of universal jurisdiction in the prosecution of universal crimes. Thus, in 

Demjanjuk v Petrovsky 28 , the Sixth Circuit stated that "any nation which has custody of the 

perpetrators [of an international crime] may punish them according to its law applicable to such 

offenses." Similarly, a Louisiana Federal District Court recently stated that "where a state has 

universal jurisdiction, it may punish conduct although the state has no links of territoriality or 

nationality with the offender or victim." 

In Belgium, a jury convicted Sisters Maria Kisito and Gertrude, two Benedictine nuns, for 

complicity in the commission of genocide in Rwanda 29 , pursuant to Belgium’s law that provided 

the courts with the authority under domestic law to exercise universal jurisdiction over genocide 

crimes 30 . Another famous example of a universal jurisdiction in absentia claim 31 is Belgium's 

issuance of an international arrest warrant for Yerodia Ndombasi, Congolese Minister of Foreign 

Affairs, that resulted in a case before the ICJ. While in the ICJ majority's opinion, the case turned 

on the issue of diplomatic immunity rather than jurisdictional questions, nevertheless some of the 

26 UNDCPEICC. 

27 Steven (1999). 

28 Demjanjuk v Petrovsky. 

29 Keller (2001). 

30 Sammons (2003). 

31 Colangelo (2005).

7 

judges took up the question in separate opinions. Examining the issue in detail, the joint separate 

opinion of Judges Higgins, Kooijmans, and Buergenthal 32 broke new ground in observing that 

universal jurisdiction may be exercised, an opinion shared also by judge Koroma. 33 

Under Spain's universal jurisdiction criminal statute, its courts have carried lawsuits 

against a former Chinese head of state for genocide in Tibet, Guatemalan generals for various 

international crimes against the Mayan people, and actually convicted a former Argentine 

military officer for his commission of crimes against humanity in Argentina. 34 In connection with 

genocide, The ICTY's Appeals Chamber stated in the Tadic case that "universal jurisdiction [is] 

nowadays acknowledged in the case of international crimes." 35 Similarly, the ICTR held in the 

case of Prosecutor v Ntuyahaga that universal jurisdiction exists for the crime of genocide. 36 

b. Opinio juris exists in favour of universal jurisdiction 

Evidence of state practice and attitudes reflects that a new principle of customary 

international law has emerged. Even though universal jurisdiction remains a relatively novel basis 

for prosecution, nonetheless, the events of recent years indicate that national prosecutions for 

international crimes will continue to increase 37 . Opinio juris declared by the nations as shown 

above, and through United Nations resolutions on South Africa, Iraq, and Bosnia 38 have 

32 Joint Separate Opinion of Higgins, Koojimans & Buergenthal (2002) at 59. 

33 Separate Opinion of Koroma (2002). 

34 Totten (2011). 

35 Tadic Case at para 62. 

36 Ntuyahaga Case. 

37 Wible (2002). 

38 Henzelin.

8 

demonstrated a world belief that massive violations of human rights will assume international 

implications. 

In addition, the exercise of universal jurisdiction over genocide is considered mandatory 

when coupled with the principle of aut dedere aut judiciare. 39 The ambundance of multilateral 

agreements during the last century that contain either express or implied aut dedere aut judicare 

provisions stand as firm evidence of sufficient opinio juris to indicate a willingness by states for 

the principle to become customary. 40 Therefore, RNM’s refusal to extradite or to prosecute Mr 

Neville 41 is a clear infringement of the above mentioned principle as the duty to prosecute or to 

extradite a person accused of genocide is mandatory 42 . Therefore, USM’s exercise of jurisdiction 

under the principle of universal jurisdiction is legitimate. 

C. USM DID NOT INFRINGE RNM’S SOVEREIGNTY 

The principle of sovereignty stands at the foundation of international law, being enshrined 

in art 2 (1) of the UN Charter 43 . It is without a doubt that each State has the authority to exercise 

"sovereignty over its territory and general authority over its nationals." 44 . However, with the 

rights that accompany national sovereignty, a State also bears obligations towards its citizenry. 

When international crimes occur, or are even possible, a legal conclusion follows that the 

legitimate functioning of a State has diminished or ceased. When a state violates human rights or 

39 Steven (1999). 

40 Bassiouni and Wise (1995) at 46-47. 


42 Kelly (2003). 

43 UN Charter. 

44 American Law Institute (1986).

9 

cannot meet its obligations vis-à-vis its citizens, those citizens have a right to ask for and receive 

assistance and the international community has a right and obligation to respond in a manner 

most befitting the particular situation. 45 

In the case of North Manconia it is clear that the State of RNM was incapable of exerting 

its authority, the Keanos leaders being in control of the country after the 18 th of July 2009. 46 The 

horrific crimes committed on the territory of RNM are crimes punishable under international law. 

The gravity of the situation and the need for external intervention was noticed also by the UNSC, 

which issued two resolutions (3778 and 3782 from 2009). 47 The acceptance of the RNM of the 

AFRM soldiers on its territory, under the Agreement of National Reconciliation of the Republic 

on North Manconia, 48 proves the fact that RNM is aware that it lacks the power to exercise its 

authority and has accepted to cease part of its sovereignty to the international community. 

In the light of the aforementioned considerations, and taking in consideration the fact that 

there is no established International Criminal Tribunal to prosecute the crimes and RNM’s lack of 

good faith regarding the prosecution of Mr Neville, USM is entitled to prosecute Mr Neville and 

it is not in breach of its international obligations. 

45 Sammons (2003). 


47 The Case at para 13 and at para 15. 

48 The Case at para 19.

10 

II. USM HAS NOT VIOLATED THE IMMUNITY FROM CRIMINAL 

JURISDICTION OF MR NEVILLE, A SERVING MINISTER IN THE RNM 

GOVERNMENT 

A. AS RNM IS NOT PARTY TO THE VIENNA CONVENTION ON DIPLOMATIC 

RELATIONS AND OTHER CONVENTIONS, GENERAL INTERNATIONAL LAW 

SHALL BE APPLIED 

International custom is the basic source of international law in the sphere of immunity 

from criminal jurisdiction. H. Fox noted that “[i]n the absence of any general convention on the 

status and immunities of a head of State, the rules are provided by customary international law”. 49 

Mutatis mutandis is the situation regarding other State officials. 50 

Despite the fact that USM had ratified the VCDR, because RNM had not done so, this 

case will be properly judged based on international custom, considering that the provisions of the 

VCDR 51 were recognized by the ICJ as representing norms of customary international law. 52 

Also, regardless of the fact that neither the RNM nor USM are part to the CSM 53 , this 

Convention and its norms, which represent international custom, will be applicable. 

B. MR NEVILLE WAS NOT ENJOING IMMUNITY RATIONE PERSONAE 

Immunity ratione personae is characterized by its broad material scope and is granted 

under international law to a limited number of officials, most notably the head of State, while in 

49 Fox (2002) at 426; Watts (1994) at 36; Simbeye (2004) at 94; Summers (2007),; Michigan 

State University College of Law; Altman. 

50 ILC 1. 

51 Genocide Convention. 

52 Solis (2010). 

53 Convention on Special Missions.

11 

office. 54 In the light of State practice and the legal literature, State officials that are candidates to 

the enjoyment of immunity ratione personae could be classified under three different categories: 

the head of State 55 ; the head of Government 56 and minister for foreign affairs 57 ; and other high- 

ranking officials. There appears to be no instance in which it has been alleged that State officials 

of a lower rank would enjoy this kind of immunity, except in very specific circumstances. 58 

Heads of State, Heads of Governments and ministers for foreign affairs constitute, in a 

manner of speaking, the basic threesome of State officials who enjoy personal immunity. Under 

international law, only these three categories of officials are considered to be representatives of 

the State in international relations by virtue of their functions and consequently of their posts. 

Only these officials, for instance, can sign international treaties on behalf of their State without 

the need to produce full powers. 59 

A solid practice in this way was noted that along with ensuring the participation of the 

State in international relations, the importance of the functions performed by a given high- 

ranking official in ensuring the sovereignty of the State could be a criterion for including an 

official among those who enjoy immunity ratione personae. 60 

54 Idem. 

55 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, 

I.C.J. Reports 2008 at 177. 

56 Arrest Warrant Case at para 51; Watts (1994); 

57 Arrest Warrant Case at para 53. 

58 ILC 2. 

59 Evans (2006). 

60 Idem.

12 

In the case of General Shaul Mofaz, the judge stated that he considered it highly unlikely 

that “ministerial appointments such as Home Secretary, Employment Minister, Environment 

Minister, Culture Media and Sports Minister would automatically acquire a label of State 

immunity”. 61 The fact that immunity ratione personae may be enjoyed only by those other high- 

ranking State officials for whom representation of the State in international relations is an 

indispensable and primary part of their functions was mentioned by the Counsel of France, Mr 

Pellet, during the oral pleadings in the case Certain Questions of Mutual Assistance in Criminal 

Matters. 62 According to K. Parlett, “immunity ratione personae is conferred on offices whose 

function is so important to the maintenance of international relations that they require a broad 

conferral of immunity”. 63 

The fact that Mr Neville did not have the authority to negotiate or conclude treaties on 

behalf of RNM clearly reflects the idea that he was not representing the State in its international 

relations. Also a Minister of Culture, Media and Sport cannot perform the function of ensuring 

the sovereignty of the State. This is undoubtedly, because the functions of this Minister comprise 

attributions in domestic affairs and not on international level. These domains that are granted to 

this Minister, do not deal with sovereign and independent functioning of the State. 

61 Re General Shaul Mofaz at 733. 

62 Certain Questions of Mutual Assistance in Criminal Matter (Djibouti v France), “Oral 

argument of Alain Pellet” (25 January 2008), online: ICJ www.icj-cij.org at para 63. 

63 Parlett (2006).

13 

C. EVEN IF, ARGUENDO, MR NEVILLE ENJOYS IMMUNITY FROM CRIMINAL 

JURIDICTION, SUCH IMMUNITY IS PRECLUDED BY COMMITTING CRIMES 

UNDER INTERNATIONAL LAW 

It is important to mention that there are no definitions of the concept of immunity, at least 

not in universal international agreements. The individual who enjoys immunity is provided 

protection from the law enforcement process in the State from whose jurisdiction immunity exists 

but not from the law of that State. Thus the person enjoying immunity is not exempt from the law 

established by the State possessing jurisdiction. This view is widely supported by doctrine. 64 

It has been argued that State immunity applies only in respect of sovereign acts and that 

international crimes, particularly those contrary to jus cogens norms 65 , can never be regarded as 

sovereign acts. 66 Similar arguments have been made to the effect that acts which amount to 

international crimes may never be regarded as official acts. 67 According to draft principle III of 

the Charter of the Nürnberg Tribunal, which is recognised as law, “the fact that a person who 

committed an act which constitutes a crime under international law acted as Head of State or 

responsible Government official does not relieve him from responsibility under international 

law”. 68 “Every State has the right to exercise jurisdiction over its territory and over all persons 

and things therein, subject to the immunities recognized by international law”. 69 The commentary 

64 Parry and Grant (1986) at 165; Fox (2006) at 363; Tomonori (2001) at 261-274. 

65 VCLT. 

66 Bianchi (1999); Belsky, Merva, and Roht-Arriaza (1989); Bianchi (1994); Reimann (1995); 

Orakhelashvili (2002). 

67 Akande & Shah (2010). 

68 International Law Commission, Yearbook of the International Law Commission 1950, vol II 

(New York: UN, 1957), UN Doc A/CN.4/SER.A/1950/Add.I. 

69 UN, The Work of the International Law Commission, 6th ed, vol. I (New York: UN, 2004) at 

262.

14 

to this draft article notes that “the concluding phrase is a safeguard for protecting such 

immunities as those of diplomatic officers and officials of international organizations”. State 

officials are thus not directly mentioned as such. 70 Moreover, States have a duty to prosecute, 

punish, or extradite individuals responsible for the commission of those crimes – in other words, 

the enforcement of individual criminal responsibility has become an obligation erga omnes in 

nature. 71 

Genocide represents the intentional killing, destruction or extermination of groups or 

members of a group and was first conceived of as a category of crimes against humanity. 72 Also, 

the actions that constitute genocide attract individual criminal responsibility as enshrined in 

articles 7(1) of the ICTY 73 and 6(1) of the ICTR 74 . 

First of the most important cases of prosecuting genocide was the 1961 Eichmann Case 

before the Israeli Courts. Also, in 1999, in the Jorgic case, decided by the German Courts, the 

accused was found guilty and sentenced to life imprisonment. This idea is greatly reflected by the 

ICTR in Akayesu case 75 and by ICTY in Krstic case 76 . In addition, at the level of state 

responsibility it is now widely recognized that customary rules on genocide impose erga omnes 

obligations, that is, lay down obligations towards all other member States of the international 

70 ILC 1. 

71 Evans (2006). 

72 Evans (2006). 

73 ICTY Statute. 

74 ICTR Statute. 

75 Akayesu Case. 

76 Krstic Case.

15 

community, and at the same time confer on any State the right to require that acts of genocide be 

discontinued. 77 Finally, those rules now form part of jus cogens or the body of peremptory norms, 

i.e. they may not be derogated from by international agreement. 78 

It has been argued that owing to the superior position of jus cogens norms in the hierarchy 

of international law, they must prevail over the rules of international law providing immunity. 79 

This argument was stated in Siderman de Blake v Republic of Argentina. 80 In this context, it is 

relevant to point out that most norms of international humanitarian law, in particular those 

prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of 

international law or jus cogens 81 . It is by no means established that all rules prohibiting 

international crimes are prohibitions that rise to the level of jus cogens. The prohibitions of 

aggression 82 , genocide, and torture 83 seem clearly to fall into that category. 

At least during the period comprised between 28 July and 15 August, Mr Neville’s 

behaviour can be qualified as inhuman. He relayed information regarding precise addresses 

where Blues are living or working, and ordered that they be "fried”, "roasted”, "squashed”, and 

77 Idem. 

78 Evans (2006). 

79 Bianchi (1994); Reimann (1995); Byers (1996); Orakhelashvili (2002); Orakhelashvili 2 

(2002);Karagiannakis (1998); Orakhelashvili (2007). 

80 Siderman de Blake v Republic of Argentina; Ferrini v Federal Republic of Germany; 

Prefecture of Voiotia v Federal Republic of Germany; FRG v Mantelli and Others; Al-Adsani v 

United Kingdom, Jurisdictional Immunities of the State. 

81 Prosecutor v Kupresnik, Nuclear Weapons Advisory Opinion. 

82 Nicaragua Case (1984). 

83 Prosecutor v Furund; Al-Adsani v United Kingdom.

16 

"eliminated”. At that time he was working at a private radio station, Fergietime FM, a leading DJ 

known as "DJ Red Nev” and enthusiastically ordered his listeners to "squash the Blues”. 

These actions represent incitement to genocide. As well as genocide, these crimes are 

incriminated under international law and must be punished in compliance with the provisions of 

international custom as neither the Republic of Manconia nor the Republic of North Manconia 

are parties to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. 

D. MR NEVILLE WAS NOT PART OF A SPECIAL MISSION 

The legal base of the Special Missions is covered by 1969 UN Convention on Special 

Missions. However, as the States in the present proceedings are not parties to this Convention, it 

will not be applicable 84 . It is disputable whether the provisions enshrining immunity in that 

Convention represent rules of customary international law. 85 

In history, there are relatively few decisions from national courts on this subject. In a 

recent case 86 , a US District Court rejected a plea of immunity from criminal jurisdiction by a 

visiting government official claiming to be on a special mission and found that the Special 

Mission Convention does not represent customary international law. 

Despite this fact, other countries recognize Special Missions as a matter of international 

law, as it was recognized also by the International Law Commission. For example the UK 

84 Convention on Special Missions. 

85 Akande & Shah (2010). 

86 USA v Sissoko.

17 

Government and the UK Courts have also recognized the Special Missions as a part of customary 

international law. 87 

In light of these facts, the best definition for a Special Mission is given by Article 1 of UN 

Convention on Special Missions. It states that: “a “special mission” is a temporary mission, 

representing the State, which is sent by one State to another State with the consent of the latter 

for the purpose of dealing with it on specific questions or of performing in relation to it a specific 

task”. This suggests that the receiving state must not only be aware that the foreign official is on 

its territory, it must also consent to that presence and to the performance of the specified task. 88 It 

is this consent which gives rise to the immunity. 89 

The official position of Orangestan is particularly important. After RNM demanded the 

immediate release of Mr Neville from detention in USM, and his return to Redville, Orangestan 

did not register any kind of complaint, officially or otherwise. Mr Neville’s visit was an ordinary 

visit at the Annual Regional Culture Ministers Meeting, in his official capacity of Minister for 

Culture, Media and Sport. As such, it can’t be said that his visit had a special nature, because this 

Meeting was held annually, at the department level. Also during its activity, no treaties have been 

negotiated or concluded. The fact that no treaties have been negotiated or concluded at the 

Regional Culture Ministers’ Meetings clearly defines the aim of these meetings. Even though in 

recent years the meetings have concluded with the adoption of non-binding resolutions on 

regional co-operation in this area, this cannot give Mr Neville’s visit the status of a “Special 

Mission”. 

87 Re Bo Xilai. 

88 Akande (2010). 

89 The Schooner Exchange v McFaddon.

18 

III. THE COURTS OF USM HAVE JURISDICTION OVER MR NEVILLE 

REGARDLESS OF THE METHOD BY WHICH HE WAS BROUGHT 

BEFORE THE COURT 

A. USM COURTS JURISDICTON IS NOT AFFECTED BY THE STATE-SPONSORED 

EXTRATERRITORIAL ABDUCTION 

In order to frame the case as accurately as possible before the Court- as to whether USM 

violated international law in respect to the method it adopted in bringing Mr Neville before the 

court- it is vital to discuss the existence of an international general rule that firmly condemns 

every form of extraterritorial abductions and the implications of the method by which a criminal 

is brought before the court to its legitimacy in exercising its jurisdiction. It is important to 

mention that there are no treaties on extradition neither between USM and Orangestan nor 

between USM and RNM 90 and therefore, in these proceedings, general international law will be 

applicable. 91 

1. Male captus bene detentus, an applicable principle of law 

Until the first half of the twentieth century courts generally chose not to inquire into the 

means by which a defendant was brought before them as a matter of applying domestic law and 

treaty interpretation 92 . In recent years, the problem of extraterritorial abductions and the 

consequences to the legality of the jurisdiction exercised by the abducting state has become 

widely debated. However, in absence of uniformity in State practice that would lead to a general 

belief in the idea that the method by which a criminal is brought before a court would influence 

the legitimacy of the courts jurisdiction leads to the immediate conclusion that there is no rule 

90 The Case. 

91 ICJ Statute at art 38 (1) (b) (c). 

92 Ex parte Susannah Scott; Ker v Illinois.

19 

under international law that would oblige a domestic court to verify this aspect before exercising 

its jurisdiction. Scholars rely on well-established jurisprudence in arguing that extraterritorial 

arrests and subsequent trials remain legal, despite any violation of international law that may 

have been involved in the suspect's capture. 93 

2. State practice is in support of male captus bene detentus principle 

Although various nations engage in extraterritorial abduction as discussed above, the 

United States has one of the longest lines of case law in this area. 94 This issue of exercising 

jurisdiction on these premises was first raised by the Supreme Court of the United States of 

America in the seminal case of Ker v Illinois 95 . The Court affirmed the idea that an illegal 

abduction of a defendant on foreign territory does not violate the defendant's right to due process, 

nor deprive the court of jurisdiction 96 . Sixty-six years later, Frisbie v Collins 97 reaffirmed and 

broadened the doctrine established in Ker. The Court held again that the means of apprehension 

does not invalidate the jurisdiction of the Court over the defendant, and extended the principle to 

illegal abductions within the United States. 98 Another similar case was United States v Verdugo- 

Urquidez 99 , were again the Court dismissed Rene Martin Verdugo-Urquidez challenge of the 

jurisdiction of United States of America. 

93 Mann (1998). 

94 Bassiouni (2001). 

95 Ker v Illinois. 

96 Hagan (1994). 

97 Frisbie v Collins. 

98 Hagan (1994). 

99 United States v Verdugo-Urquidez.

20 

One of the most debated moves of the United States was the abduction and trial of 

Dr. Alvarez-Machain 100 . In 1992, in a controversial decision, the United States Supreme Court 

reversed the Ninth Circuit ruling and found that jurisdiction existed over a defendant kidnapped 

in foreign territory. The Court reaffirmed Ker and rejected the contention that the forcible 

abduction of the defendant from Mexico barred jurisdiction of a United States district court. 101 In 

spite of the international stir that the ruling produced, the United States remain firm in its position 

of supporting male captus bene detentus. 

Historically, European and British Commonwealth courts adhered to the rule of male 

captus bene detentus. 102 The English rule originated in Ex parte Scott. 103 Lord Tenterden held 

that the court would not divest itself of jurisdiction: The Lords could not inquire into the 

circumstances under which Scott was brought before the court. Commonwealth courts followed 

this line of reasoning throughout the late nineteenth century. 104 

Not only the English speaking countries used forcible abduction methods for capturing 

international offenders. In the case of Argoud 105 , pursuant to a French arrest warrant, a French 

citizen named Antoine Argoud was abducted from Munich by unknown persons and taken to 

100 United States v Alvarez-Machain. 

101 Hagan (1994). 

102 Sridhar (2006). 

103 Ex parte Susannah Scott. 

104 Idem. 

105 Re Argoud.

21 

Paris. The Court of Cassation denied Mr Argoud’s appeal in which he invoked the court’s lack of 

jurisdiction and pronounced the lower court's jurisdiction sound. 106 

The South African Natal Provincial Division Court held in the Ndhlovu & Another v 

Minister of Justice & Others 107 case that it had jurisdiction to try persons "arrested in violation of 

public international law for an offence committed against the laws of that State" regardless of the 

fact that they were abducted from a foreign State. 

It is interesting to notice that even the international community has resorted to abduction 

in bringing criminals before international courts. Several of the cases brought before the ICTY 

have raised the issue of jurisdiction based upon allegations of extraterritorial abduction. 108 Slavko 

Dokmanovic first raised the defence of illegal apprehension in Prosecutor v Mrksic, Radic, 

Sljivancanin & Dokmanovic 109 . The court found Dokmanovic's motion on this basis meritless. 

What it is important to emphasise here is that UN forces arrested Dokmanovic in 1997, in 

Croatia, therefore acting on behalf of the international community. 

In light of the aforementioned considerations and examples of state practice, it can be 

comfortably sustained that male captus bene detentus is a principle applicable under international 

law. 

106 Kovac (2002). 

107 Ndhlovu & Another v Minister of Justice & Others. 

108 “Bosnia: Capture of War Crimes Suspect Could be Ruled Illegal” (18 August 2000) United 

Nations Foundation, online: http://www.unfoundation.org/unwire/archives/UNWIRE000818.cfm 

109 Prosecutor v Mrksic, Radic, Sljivancanin & Dokmanovic.

22 

3. Customary international law incorporates exceptions on the prohibition against 

extraterritorial abduction 

Even if, arguendo, the principle of male captus bene detentus would not be recognised, 

international law permits extraterritorial abductions in certain situations pursuant to the efficient 

breach doctrine 110 or when concerned with crimes considered jus cogens. As such, the contours 

of customary international law limit and define the class of abductions to which the efficient 

breach theory can apply. 111 Effective breach functions alongside the existing international order 

during moments of distress without necessitating a fundamental change in the structure of 

international law. 112 This principle is applicable in the case as the crimes with which Mr Neville 

is charged constitute crimes under international law. Moreover, USM acted within the limits set 

by the doctrine. 

Furthermore, customary international law has evolved to incorporate an exception to the 

general prohibition against extraterritorial abduction as a violation of sovereignty for war 

criminals, terrorists, and others who pose a threat to either a particular nation's or the 

international community's peace and security. 113 The case of Eichmann v Israel is of particular 

importance here. On May 11, 1960, Israeli agents abducted infamous Nazi war criminal Adolf 

Eichmann from Argentina to stand trial for war crimes in Israel. 114 Similar to USA judicial 

analysis, the Israeli Supreme Court first concluded that universal jurisdiction served as an 

appropriate basis for jurisdiction. The Israeli Supreme Court denied Eichmann any individual 

110 United States v Alvarez-Machain. 

111 Calica (2004). 

112 Seymour (1990); Reisman (1984). 

113 Kovac (2002). 

114 Eichmann Case.

23 

right to object and noted: "It is an established rule of law that a person being tried for an offence 

against the laws of a State may not oppose his trial by reason of the illegality of his arrest or of 

the means whereby he was brought within the jurisdiction of that State." 115 Again, it is worth 

considering the reaction of the international community expressed through its political organ. 116 

Despite Argentina’s complaint filed with the UNSC in which it alleged the violation of its 

territorial sovereignty by Israel via its exercise of authority within Argentinean territory and 

demanded reparation, the UN Security Council passed a resolution that expressed disapproval of 

Israel's action, but however it did not require Eichmann's return (emphasis added). 117 The 

response of the UN Security Council clearly reflects a silent approval of jurisdiction for the Israel 

courts. Israel subsequently tried, convicted, and executed Eichmann. 118 

B. USM ACTIONS DID NOT INFRINGE RNM’S SOVEREIGNTY 

The PCIJ stated in S.S. Lotus case 119 that "there is no rule of international law which 

prohibits a state from exercising jurisdiction over a foreigner in respect of an offense committed 

outside its territory." The Court found that international law did not prohibit States from 

extending 120 "the application of their laws and the jurisdiction of their courts to persons, property 

and acts outside their territory." 121 USM acted in conformity with the efficient breach doctrine 122 

115 Ibid. 

116 Aust (2005) at 214. 

117 SC Res. 138 (1960). 

118 Eichmann Case. 

119 Lotus Case. 

120 Kovac (2002). 

121 Ibid.

24 

after the diplomatic negotiations with Orangestan with the scope of arresting Mr Neville failed, in 

order to exert its jurisdiction over Mr Neville’s acts of instigation to genocide. Furthermore, 

RNM’s claim would automatically trigger the third party rule, as stated by the Court 123 . The 

actions taken by USM to bring Mr Neville on its territory were performed in the State of 

Orangestan. Therefore, Orangestan would be the sole State capable of bringing a claim of 

violation of its territorial sovereignty. However, it can be easily concluded from Orangestan 

conduct after USM’s intervention that the state of Orangestan expressed its silent approval in 

respect to the abduction of Mr Neville and did not file any complain in this way. 

A solid practice of States is that along with ensuring the participation of the State in 

international relations, the importance of the functions performed by a given high-ranking official 

in ensuring the sovereignty of the State could be a criterion for including an official among those 

who enjoy immunity. 124 However, it has also been argued that state immunity applies only in 

respect of sovereign acts and that international crimes, particularly those contrary to jus 

cogens norms 125 , can never be regarded as sovereign acts. 126 Similar arguments have been made 

to the effect that acts which amount to international crimes may never be regarded as official 

acts. 127 Inciting to genocide, the crime for which Mr Neville is being prosecuted, represents an 

international crime, and as such enters into the subject matter where states are obliged to deny 

122 Calica (2004). 

123 Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great 

Britain and Northern Ireland and United States of America), [1954] ICJ Rep 19 at 32. 

124 Evans (2005). 

125 VCLT. 

126 Bianchi (1999); Belsky, Merva, and Roht-Arriaza (1989); Bianchi (1994). 

127 Akande (2010).

25 

sovereign immunity. Mr Neville, in his ministerial capacity, had rather more domestic than 

international attributions. In this way, Mr Neville was not representing the State and has not 

benefited from this immunity. Consequently, USM has not violated the sovereignty of RNM. 

i) Submissions 

For the foregoing reasons, The United States of Merseystan respectfully requests the 

Honourable Court to: 

I. Dismiss RNM’s claim of USM’ lack of jurisdiction over the crimes committed by 

Mr Neville founded on the premises of, firstly, no nexus between the territory and 

nationality of the perpetrator and USM, and secondly, the method he was brought 

in USM; 

II. Adjudge and declare that USM has jurisdiction over the crime of instigation to 

Genocide, punishable under USM domestic law and international law, committed 

by Mr Neville, on the basis of universal jurisdiction and the principle of male 

captus bene detentus; 

III. Adjudge and declare that Mr Neville has no immunity in front of USM’s courts; 

IV. Adjudge and declare that the acts carried out in pursuance of bringing Mr Neville 

before the courts were in conformity with international law and did not infringe 

RNM sovereignty. 

Respectfully submitted, 

Agents of the Respondent

9B - Grotius Centre for International Legal Studies

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