PUBLIC INTERNATIONAL LAW

I.

The dictatorial regime of President A of the Republic of Gordon was toppled by a

combined force led by Gen. Abe, former royal guards and the secessionist Gordon
Peoples Army. The new government constituted a Truth and Reconciliation
Commission to look into the serious crimes committed under President As
regime. After the hearings, the Commission recommended that an amnesty law be
passed to cover even those involved in mass killings of members of indigenous
groups who opposed President A. International human rights groups argued that
the proposed amnesty law is contrary to international law. Decide with
reasons. (4%)

Suggested Answer:

The proposed amnesty law is contrary to international law.

The indigenous group may constitute an ethnic group which is protected by the law on
Genocide. If the mass killing was committed with the intent to destroy (dolus specialis) the
said ethnic group as such, in whole or in part, then the crime of Genocide was committed.
The international norm for the prevention, prosecution and punishment of Genocide is a
peremptory (just cogens) norm of international law and, therefore, non-derogable.
(Prosecutor v. Blagojevic and Jokic, ICTY, January 17, 2005)

Even if the mass killing was not committed with the dolus specialis to destroy the ethnic
group as such, the same may still constitute the Crime Against Humanity of Extermination if
the mass killing was widespread and systematic or the War Crime of Intentionally Attacking
Civilians if the same took place in the context of or was associated with an armed conflict.
The norm for the prevention, prosecution and punishment of crimes against humanity and
war crimes are also customary norms of international and therefore binding on all States.
(Prosecutor v. Stakic, ICTY, July 31, 2003)
Thus, Republic of Gordon has the obligation under international law to prosecute and punish
all those involved in the mass killing of the members of the indigenous group and providing
amnesty to those involved is violative of this obligation.

II.

Compare and contrast the jurisdiction of the International Criminal Court and
International Court of Justice. (3%)

Suggested Answer:

The jurisdiction of the International Criminal Court (ICC) primarily deals with the prosecution
of individuals for core international crimes, while the jurisdiction of the International Court of
Justice (ICJ) deals with contentious proceedings between States.

As to subject matter jurisdiction (ratione materiae), the jurisdiction of the ICC is limited to
the most serious crimes of concern to the international community as a whole, particularly:
(a) the Crime of Genocide; (b) Crimes against Humanity; (c) War crimes; and (d) the Crime of
Aggression. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p.
308). On the other hand, the jurisdiction of the ICJ covers legal disputes which the States
refer to it. This includes disputes concerning: (a) the interpretation of a treaty; (b) any
question of international law; (c) the existence of any fact which, if established, would
constitute a breach of an international obligation; and (d) the nature or extent of the
reparation to be made for the breach of an international obligation. (Article 36, ICJ Statute)
The ICJ also has jurisdiction to give an advisory opinion on any legal question as may be
requested by the General Assembly or the Security Council or on legal questions arising
within the scope of the activities of other organs and specialized agencies of the U.N. upon
their request and when so authorized by the General Assembly. (Article 96, U.N. Charter)

As to jurisdiction over the persons or parties (ratione personae), the ICC shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern, and shall be complementary to national criminal jurisdictions. (Art. 1, Rome
Statute) On the other hand, only States may be parties in cases before the ICJ and their
consent is needed for the ICJ to acquire jurisdiction. (R. Sarmiento, Public International Law
Bar Reviewer, 2009 Revised Edition, p. 185)
III.

A, a British photojournalist, was covering the violent protests of the Thai Red-
Shirts Movement in Bangkok. Despite warnings given by the Thai Prime Minister
to foreigners, specially journalists, A moved around the Thai capital. In the course
of his coverage, he was killed with a stray bullet which was later identified as
having come from the ranks of the Red-Shirts. The wife of A sought relief from
Thai authorities but was refused assistance.

A. Is there state responsibility on the part of Thailand? (2%)

B. What is the appropriate remedy available to the victims family under

international law? (3%)

Suggested Answer:

A. No, there is no state responsibility on the part of Thailand because the acts of the Thai
Red-Shirts were not the acts of Thailand. Under the Principle of Attribution or Imputation, a
State only incurs liability for individual acts or omission which can be attributed to it. The
Thai Red-Shirts are not its officials, agents, or representatives and they were not acting on
the instructions of, or under the direction or control of, the Thai Government. (R. Sarmiento,
Public International Law Bar Reviewer, 2009 Revised Edition, pp. 65-66)

B. Unless the Red-Shirts becomes the new Government of Thailand or Thailand

acknowledges and adopts the conduct of the Red-Shirts as its own, the victims family has
no appropriate remedy under international law. Their remedy, if any, if only available under
the domestic laws of Thailand by the institution of the appropriate criminal cases against the
persons responsible for A killing and the filing of an action to recover damages arising from
As death.

IV.
Choose the statement which appropriately completes the opening phrase:

A State which resorts to retorsion in international law

A. must ensure that all states consent to its act.

B. cannot curtail migration from the offending state.

C. can expel the nationals of the offending state.

D. should apply proportionate response within appreciable limit.

E. None of the above.

Explain your answer. (2%)

Suggested Answer:

D. A State which resorts to retorsion in international law should apply proportionate

response within appreciable limits.