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I. Rantania unlawfully intervened in an ongoing civil war
In Nicaragua case, the ICJ stated that no State shall ‘interfere in civil strife of another State’ and confirmed it in DRC v. Uganda. The practice of the Security Council in relation to Somalia confirms the principle of non-interference in a civil strife in support of any party to the conflict.
The situation is to be described as a civil war when control of the State’s territory is divided between warring parties. This was a characterizing feature in DRC v. Uganda, i.e. the Court mentioned that there were areas ‘controlled and administered by Congolese rebel movements’.
Interim President Andler exercised effective control over 90 percent of the territory; however, NHB forces loyal to Green established bases in two Northern villages [Compromis, 29]. QRF and NHB forces were confronting each other without any progress in the fighting [Compromis, 34]. The Operation Uniting for Democracy started right after the conflict between the QRF and the NHB reached its apogee [Compromis 34, 37].
Therefore, Aprophe was in the state of the ongoing civil war, which excludes the possibility of intervention.
Ii. Mig Green’s request for the intervention cannot justify the intervention.
Invitations for interventions are void in cases of civil war as shown by the negative reaction to the USSR intervention in Afghanistan, condemned by General Assembly, or to the UK intervention in Jordan. In Nicaragua case, the ICJ stated that the invitation for an outside intervention may come only from the government of a State and held that intervention at the request of opposition “does not […] correspond to the present state of international law.” Also, the Security Council condemned Iraq’s intervention in Kuwait in 1990, although the intervention was based on the request of Kuwaiti ‘government in exile’.
Andler is the Interim President of Aprophe [Compromis, 27], while Green represents the Aprophian opposition, and, therefore, his request cannot be regarded as a justification for the intervention. Although Mig Green and his ministers view themselves as a ‘government in exile’ [Compromis, 31], the Kuwaiti situation shows that such entity is not entitled to provide consent for intervention.
Therefore, Rantania unlawfully intervened in ongoing civil war in Aprophe. Moreover, Green’s actions cannot qualify as Aprophe’s consent for the Operation Uniting for Democracy.
Rantania cannot justify its intervention under the doctrine of humanitarian intervention
In Nicaragua case, the ICJ clearly stated that the use of force is not an appropriate method to monitor or ensure respect for human rights. In Corfu Channel case, the ICJ ruled that the UK violated Albanian sovereignty, notwithstanding the UK’s argument that its actions did not threaten territorial integrity or political independence of Albania. Humanitarian intervention is not recognized by international community; for instance the rejection of “the so-called right of humanitarian intervention” was expressed at the Meeting of Ministers of Foreign Affairs and also at the World Summit of Group 77. ICRC noted that humanitarian intervention is ‘in contradiction with the fundamental principles and the very nature of humanitarian law and humanitarian action’. France stated that violations of human rights could not justify the use of force in response to Vietnamese intervention in Cambodia.
In any event, those countries that acknowledge the lawfulness of humanitarian intervention argue that it may be admissible only in cases of compelling and urging humanitarian crisis. The doctrine of the responsibility to protect assumes the obligation on States to protect people from genocide, ethnic cleansing, and large scale violations of humanitarian law. Additionally, the doctrine imposes a requirement that prior to the intervention other means of relieving should be attempted and turn out unsuccessful.
In 1994, the Security Council authorized intervention in Rwanda on the basis of humanitarian crisis. The Secretary-General described the situation in Rwanda as genocide and reported that between 250,000 and 500,000 Rwandans had been killed. In the Operation Allied Force in Kosovo, the NATO relied on the Security Council that expressed the Council’s concern about the humanitarian situation in Yugoslavia. In both situations the intervening countries were acting on the ground of the prior Security Council concern about the situation of humanitarian danger.
The situation in Aprophe is clearly different from those in Rwanda and Kosovo. Nothing in the Compromis suggests that there was an evidence of the gross violations of the human rights, characterizing of humanitarian crisis. The Security Council did not express any concern about the humanitarian situation in Aprophe. Moreover, Rantania did not attempt any other means of human rights protection before the decision of resorting to force against Aprophe [Compromis, 31]. The doctrine of responsibility to protect cannot be applied in this case, since no flagrant crimes against humanity, genocide or ethnic cleansing were occurring in Aprophe. The bombardment was unrelated to the protection of human rights. On the contrary, it was aimed at the overthrow of the rightful government in Aprophe, which stems from the Rantanian negotiations about the ‘restoration’ of Mig Green’s government [Compromis, 31].
Thus, the Operation Uniting for Democracy cannot be justified by the humanitarian intervention.
(3) SINCE THE EXERCISE OF JURISDICTION BY RANTANIAN COURTS IN THE CASE OF TURBANDO, ET AL., V. THE REPUBLIC OF APROPHE VIOLATED INTERNATIONAL LAW, RANTANIA MAY NOT PERMIT ITS OFFICIALS TO EXECUTE THE JUDGMENT IN THAT CASE
The sovereign equality principle is an underlying principle of international law and State immunity. According to this principle “an equal does not have dominion over an equal”. Thus, by adjudicating in the Turbando case Rantanian courts have violated international law concerning immunities of Aprophe (3.1). Furthermore, the court’s decision in Turbando case cannot be enforced since that would violate Aprophe’s immunity from execution (3.2).
3.1. Rantania violated international law by adjudicating in the Turbando case
Aprophe submits that Rantania exercised jurisdiction in the Turbando case in breach of the 1965 Peace Agreement (3.1.1). Moreover, foreign sovereign immunity of Aprophe restricts Rantanian jurisdiction. No exceptions to State immunity can be made in this case (3.1.2).
The exercise of jurisdiction by Rantanian courts violated the 1965 Peace Agreement
Waivers or immunities are commonly contained in international peace treaties which are binding for States. Waiver clauses are gestures of goodwill designed to put an end to legal fights about compensation due in individual cases.
For instance, The San Francisco Peace Treaty between Japan and Allied powers of the World War II (1951) contained the waiver clause which stated that “Allied powers waive all reparations claims of the Allied Powers and their nationals arising out of any actions taken by Japan in the course of […] war.” Similarly, Article IX of Peace Agreement between the Revolutionary United Front and the Government of Sierra Leone (1999) provided same waiver clause.
In given case Aprophe and Rantania also waived on its own behalf and on behalf of its citizens all claims arising out of the 1962-1964 conflict [Compromis, Annex I, Article XV] including claims concerning rights of military internees. Accordingly claims raised in Turbando case fall directly under this waiver [Compromis, 6, 17]. In addition, to ensure that this commitment will be enforceable, each party represented to the other that it had the authority under its constitution and laws to waive such claims on behalf of its citizens [Compromis, Annex I, Article XV].
Therefore, Rantania could not have proceeded over the Turbando case as it violates the 1965 Peace Agreement with Aprophe.
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