M EMOR I A L

FOR TH E

A S IA C UP 2007

I NTER NA TI ONA L L A W M OOT C OUR T C OMPETI TI ON TEAM NO.710

IN

THE

I NTERNATIONAL C OURT T HE H AGUE

OF

J US TICE

C ASE

CONCERNING EXTRADITION OF A SUSPECT

FOR VIOLATION OF INTERNATIONAL HUMANITARIAN LAW

ALSTAAT v. RODMANIA

COUNTER-MEMORIAL OF RODMANIA RESPONDENT

O N S UBMIS S I ON

TO TH E

I NTER NA TI ONA L C OUR T

OF

J US TI C E

ii

JULY 2007

i TABLE OF CONTENTS

Table of Contents..................................................................................................................i Table of Authorities............................................................................................................iv Primary International Instruments.....................................................................................iv Official Commentaries and Documents.............................................................................iv Evidence of International Customs and General Principles of Law...v Judicial Decisions..vi Studies and Reports by the United Nations .....................................................................vii Teachings of the Most Highly Qualified Publicists.........................................................viii Reference for Medical and Surgical Issuesix General Reference Documents..........................................................................................ix Summary of Arguments......................................................................................................x Arguments & Authorities..................................................................................................xii I. RODMANIA HAS NO OBLIGATION UNDER INTERNATIONAL HUMANITARIAN LAW TO EXTRADITE DR.HATTIN TO ALSTAAT..1 A. DR.HATTIN COMMITTED NO GRAVE BREACH UNDER INTERNATIONAL HUMANITARIAN LAW.1 1. Dr.Hattin has never met Mr.Gayload and it was impossible to determine violation...1 (i) International law gives Alstaat a burden to proof the basis of its submission.1 (ii) Alstaat has failed to proof the basic fact needed for determining violation........1 (1) Alstaats entire case is simply based on personal speculation or hearsay evidence.........1 (2) Alstaats allegations contradict with the circumstantial evidence of the case....2 (3) Dr.Hattin has never seen or met Mr.Gayload at the Medical Unit..................3 (iii) The claim should be dismissed due to unfairness and lack of necessary proof..3

ii

2. Alternatively, Dr.Hattin treated everyone humanely and no violation occurred.........3 (i) Dr.Hattin acted strictly according to the Humane Treatment Principle..3 (1) Obligations exist under Convention III Art.13, 15, and 30, and Protocol I Art.10 and Art.11...3 (2) Dr.Hattin had obligations to perform Amputation and Wound Excision...4 (3) Amputation and Excision were allowed under Art.13 of Convention III and Art.11 of Protocol I......................................................................5 (ii) In any event, Dr.Hattins medical activities cannot be considered a violation...6 (1) Art.16 of the Protocol I protects ethical medical activities.............................6 (2) Dr.Hattin is protected under Art.16 of the Protocol I.7 B. THE CONDITIONS TO EXTRADITE DR.HATTIN HAVE NOT BEEN MET IN THIS CASE...7 1. There is no grave breach and Rodmanian law does not allow extradition..7 2. There is no general obligation under international law to extradite Dr.Hattin8 3. In any event, Alstaat failed to make a prima facie case against Dr.Hattin......8

II. IN ANY EVENT, RODMANIA HAS A DUTY TO DENY EXTRADITION..............9 A. RODMANIA IS BARRED BY JUS COGENS FROM EXTRADITING DR.HATTIN....9 1. Discriminating government and weak judiciary in Alstaat renders unfair trial...9 2. Dr.Hattin is exposed to inhumane capital punishment and torture in Alstaat...10 B. ALTERNATIVELY, RODMANIA HAS DUTY TO GRANT AN ASYLUM TO DR.HATTIN.11 1. Dr. Hattin is considered a refugee under Art.1 A (2) of the 1951 Convention...11 (i) Dr.Hattin has a well-founded fear of being persecuted in Xian and Alstaat......11 (ii) Persecution of Dr.Hattin is due to his nationality or particular social group..12 (iii) Dr.Hattins has become a refugee sur place since November 2005 prior to Alstaats request..13

iii

2. Dr.Hattin does not fall under Art.1 F (a) of the 1951 Convention.....13 3. In any event, non-refoulement under Art.33 (1) applies to Dr.Hattin13 (i) Rodmania cannot send Dr.Hattin to Alstaat as his life and freedom is threatened13 (ii) Exceptions under Art.33 (2) cannot be applied to deny Dr.Hattins asylum.............14

III. IN THE UNLIKELY ALTERNATIVE, DR.HATTIN SHOULD BE TRIALED IN RODMANIA AND IS NOT TO BE EXTRADITED..............14 A. RODMANIA HAS JURISDICTION UNDER THE PRINCIPLE AUT DEDERE AUT JUDICARE....14
.

B. RODMANIA GAVE DUE CONSIDERATION IN DENYING THE EXTRADITION REQUEST............15

IV. SUMMARY AND SUBMISSIONS....15

iv TABLE OF AUTHORITIES PRIMARY INTERNATIONAL INSTRUMENTS 1. Additional Protocol to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977....3, 5, 8,9,14 2. Charter of the United Nations, 26 June 1945..........................................................9,10 3. Convention against torture and other cruel, inhuman or degrading treatment

or punishment, 26 June 1987.9,11 4. Convention Relating to the Status of Refugees, 28 July 1951... ..11,12,13,14 5. Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949.........................3,5,6,9,14,15 6. International Covenant on Civil and Political Rights, 16 December 1966....1, 9,10 7. Rome Statute of the International Criminal Court, 17 July 1998. .1,2,6 8. Rules of Court of the International Court of Justice, 1 July 1978...................................3 9. Statute of the International Court of Justice, 26 June 1945...... ...3 10. Statute of the International Criminal Tribunal for Rwanda (ICTR), United Nations Security Council Resolution 955 of 8 November 1994...2, 6 11. Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTR), United Nations Security Council Resolution 827 of 25 May 1993..2, 6 12. Universal Declaration of Human Rights, 10 December 1948....1,9,10,13
OFFICIAL COMMENTARIES AND DOCUMENTS 1. International Committee of the Red Cross (Jean de Preux; edited by Jean S. Pictet), Commentary III Geneva Convention Relative to the Treatment of Prisoners of War, 2nd ed., Geneva: ICRC, 1994............................................................................4, 7, 8, 14, 15 2. International Committee of the Red Cross (Sandoz C., Swinarski, and Zimmermann B., eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva: M. Nijhoff Publishers, 1987..4,6,7,9,14, 15

v 3. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian law Applicable in Armed Conflicts Geneva 1974-1977, at <http://www.icrc.org>......7 4. The Government of Canada, Reservations and Statements of Understanding made upon Ratification of Protocol I, 20 November 1990...15 5. The Government of Republic of Ireland, Declarations and Reservations made upon Ratification of Protocol I, 19 May 1999..15 EVIDENCE OF INTERNATIONAL CUSTOMS AND GENERAL PRINCIPLES OF LAW International Instruments 1. Convention Relating to Extradition between the Member States of the European Union, 27 September 1996.10 2. Convention against the Taking of Hostages, 17 December 1979.. ...10 3. Convention for the Suppression of Terrorist Bombings, 25 November 1997.. .10 4. Convention for the Suppression of the Financing of Terrorism, 9 December 1999. .10 5. Economic Community of West African States (ECOWAS) Convention on Extradition, 6 August 1994..8,9,10 6. European Convention on Extradition, 13 December 1957.. 8,9,11 7. Inter-American Convention against Terrorism, 3 June 2002.10 8. Inter-American Convention on Extradition, 25 February 1981 8,10,11 9. Minks Convention (Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters), 22 January 1993..... 8 National Legislations 1. Argentina, Law No. 24.767 on International Cooperation in Criminal Matters...11 2. Australia, Extradition Act 1988.10,11 3. Bosnia and Herzegovina, Code of Criminal Procedure 200310 4. Canada, Extradition Act 199911 5. China, Extradition Law of 2002....10,11

vi 6. Germany, Law on International Legal Assistance10,11 7. Indonesia, Act No. 1 on Extradition of 1979..10 8. The Netherlands, Extradition Act 1967..10 9. Romania, Law No. 296/2001 on Extradition..10 10. Spain, Law No. 4/1985 on Passive Extradition..11 11. Switzerland, Federal Law on International Legal Assistance in Criminal Matters 1981..11 12. United Kingdom, Extradition Act 1989......10 13. Zambia, Extradition Act 1968.....10 National Military Manuals 1. Argentina, Law of War Manual 1969 ... ...6 2. Australia, Commanders Guide 1994 .. ....6 3. Canada, Law of Armed Conflict Manual 1999 .... 6 4. Ecuador, Naval Manual 1989 .. ....6 5. France, Law of Armed Conflict Manual 2001 ... ..6 6. Germany, Military Manual 1992 .. ...6 7. Italy, International Humanitarian Law Manual 1991..... .....6 8. New Zealand, Military Manual 1992 ...... 6 9. Senegal, International Humanitarian Law Manual 1999...... ..6 10. United States of America, Field Manual 1956....... ..6 JUDICIAL DECISIONS

vii International Court of Justice 1. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 26 February 2007, at: <http://www.icj-cij.org/docket/files/91/13685.pdf>.1 2. Corfu Channel Case, I.C.J. Reports, 1949...4 3. Fisheries Jurisdiction Case, I.C.J. Reports, 19742 4. Frontier Dispute between Burkina Faso and Mali Case, I.C.J. Reports, 1986...1 5. Military and Paramilitary Activities in and Against Nicaragua Case, I.C.J. Reports, 1986...1,4 6. North Sea Continental Shelf Case, I.C.J. Reports, 1969..1 Permanent Court of International Justice 1. River Meuse Case, P.C.I.J. Reports Series A/B No. 1937.1 2. Lotus Case, P.C.I.J. Reports Series A. No. 1927...8 3. Wimbledon Case, P.C.I.J. Reports Series A No. 1923.1

70, 10, 1,

International Criminal Tribunal for Rwanda (Trial Chamber) 1. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, 21 May 1999..6 2. Prosecutor v. Musema, Case No. ICTR-96-13-A, 27 January 2000................................6 International Criminal Tribunal for the Former Yugoslavia (Trial Chamber) 1. Prosecutor v. Blaskic, Case No. IT-95-14, 3 March 2000.. .6 2. Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2, 26 February 20016 3. Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34, 31 March 2003.. ...6 Other Judicial Decisions 1. Fernandez v. Government of Singapore and Others, United Kingdom: the House of Lords, 25 May 1971...12

viii 2. Case of Bosnian Serb, Hoge Raad der Nederlanden (The Supreme Court of the Netherlands), 11 November 1997..15 3. Case of Prisoners of Wars in Bosnia, Tribunal de Grande Instance de Paris, 1994..15 4. Chan v. Minister for Immigration and Ethnic Affairs, Australian High Court, 1988 12 5. Herczegfalvy v. Austria, the European Court of Human Rights, 19936 6. I.N.S. v. Cardoza-Fonseca, the United States Supreme Court, 1987.12 7. Kadic v. Karadzic, the United States Court of Appeals, 13 October 1995 15 8. Salibian v. Canada,Canadian Federal Court of Appeal,1990 12

STUDIES AND REPORTS BY THE UNITED NATIONS (UN) The United Nations General Assembly 1. United Nations Model Treaty on Extradition, G.A. Resolution 45/1 1 6, U.N. Doc. A/Res/45/1 16 (1991)......8,11 The International Law Commission (ILC) 1. ILC, Draft Code of Crimes Against the Peace and Security of Mankind, Yearbook of the International Law Commission 1994, Vol. II (Part Two)..6 2. ILC, Draft Code of Crimes Against the Peace and Security of Mankind, Yearbook of the International Law Commission 1996, Vol. I......6 United Nations High Commissioner for Human Rights 1. The Human Rights Committee under the International Covenant of Civil and Political Rights, Communication on Cox v. Canada, Communication No. 539/1993, U.N. Doc. CCPR/C/52/D/539/1993 (1994).. .11 2. The Human Rights Committee under the International Covenant of Civil and Political Rights, General Comment No. 29 on States of Emergency, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001)9 United Nations High Commissioner for Refugees (UNHCR) 1. UNHCR Department of International Protection (by S. Kapferer), The Interface between Extradition and Asylum. PPLA/2003/05, Geneva: UNHCR, 2 November 2003.8

ix 2. UNHCR Executive Committee, Executive Committee Conclusions No. 17

Problems of Extradition Affecting Refugees, 1980.....................................................................14 3. UNHCR, Factum of the Intervenor UNHCR, Suresh v. the Minister of Citizenship and Immigration; the Attorney General of Canada, SCC No. 27790, in International Journal of Refugee Law vol.14, 2002..14 4. UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A (2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, 7 April 2006, HCR/GIP/06/07.......11,13 5. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1 January 1992....13 6. UNHCR, Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998...11,13

1. Oceana Publications,1974....8 2. Bassiouni M., International Extradition: United States Law and Practice, New York: Oceana Publications, 1996.15 3. Brownlie I, Principles of Public International Law, 6th ed., New York: Oxford University Press, 2003...1,8 4. Calogeropoulos-Stratis, A. Droit Humanitaire de Droits de Lhomme: La Protection de la Personne en Periode de Conflict Arm, Geneva, Leiden: Sijthoff, 1980..........................11 5. Cassese A., International Criminal Law, New York: Oxford University Press, 2003...1,15 6. Frankopan I., The Law of War, Cambridge: Cambridge University Press, 2000...4,11,15 7. Gilbert G, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms, The Hague, Boston: M. Nijhoff Publishers, 1998..8 8. Goodwin-Gill G., The Refugee in International Law, 2nd ed., New York: Oxford University Press, 1996.12, 14

TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS Bassiouni M., International Extradition and World Public Order, New York:

x 9. Henckaerts Jean-Marie, and Doswald-Beck L., Customary International Humanitarian Law Volume 1: Rules, Cambridge, Cambridge University Press, 2005..6 10. Haggard S., and Noland M., The North Korean Refugees Crisis: Human Rights and International Response, Washington DC: U.S. Committee for Human Rights in North Korea, 200613 11. Jones A., Jones on Extradition and Mutual Legal Assistance, London: Sweet&Maxwell, 2001..9 12. Klin W., Flight in Times of War, in International Review of the Red Cross Vol.83 September 2001..13 13. Kittichaisaree K., International Criminal Law, USA: Oxford University Press, 2001...6 14. Lauterpacht E. and Bethlehem D., The scope and content of the principle of nonrefoulement: Opinion in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection, (Feller E., Trk V., and Nicholson F., eds.), Cambridge: Cambridge University Press, 200311,14 15. Pictet J., Dvelopement et Principes du Droit International Humanitaire, Geneva: Institut Henri-Dunant, 198314 16. Pictet J., Humanitarian Law and the Protection of War Victims, Leiden: Sijthoff, 1975.14 17. Pictet J., Red Cross Principles, Geneva: ICRC, 1956..4 18. Plachta M., Contemporary Problems of Extradition: Human Rights, Grounds for Refusal and the Principle Aut Dedere Aut Judicare, in UN Asia and far East Institute for the Prevention of Crime and the Treatment of Offenders Material Series 57, 2001...8,9,15 19. Robertson A., Acte du Congrs International de Droit, San Remo, 1970.11

Shaw M., International law, 5th ed., Cambridge: Cambridge University Press, 2003...8 21. Shearer I., Extradition in international law, New York: Oceana Publication, 1971..8 REFERENCE FOR MEDICAL AND SURGICAL ISSUES
20. Medical Documents by the International Committee of the Red Cross 1. Coupland R., Amputation for War Wounds, Geneva: ICRC, 1992. 5

xi 2. Gray R., War Wounds: Basic Surgical Management, Geneva: ICRC, 1994...5 3. Molde A., Surgery for Victims of War, Geneva: ICRC, 1998..5 Other Medical Reference Documents 1. Cristian A., Lower Limb Amputation: Guide to Living Quality Life, New York: Demos Medical Publishing, 2005.2 2. Coupland R., Technical aspects of war wound excision, in British Journal of Surgery Vol.76, 1989.....5 3. Mannion S. and Chaloner E., Principles of War Surgery, in BMJ (British Medical Journal) Vol.330, 25 June 2005..5 4. Riley, R., Living with a Below-Knee Amputation, New Jersey: Slack Incorporated, 2005..2 5. Senagore A., The Gale Encyclopedia of Surgery: A Guide for Patients and Caregivers, Detroit: Thomson Gale, 2003...4 6. Smith D., Michael J., and Bowker J., Atlas of Amputations and Limb Deficiencies: Surgical, Prosthetic and Rehabilitation Principles, Rosemont: American Academy of Orthopaedic Surgeons, 20044 7. Young G., Ropper A., and Bolton C., Coma and Impaired Consciousness: A Clinical Perspective, New York: McGraw-Hill, 1997...5 8. VascularWeb: the Society for Vascular Surgery, 4 June 2007. Society for Vascular Surgery, 25 June 2007 at <http://vascularweb.org/_CONTRIBUTION_PAGES/... Patient_Information/NorthPoint/Amputation.html>5 9. World Health Organization, Best Practice Guidelines on Emergency Surgical Care in Disaster Situations, WHO/EHT/CPRR Integrated Management Package on Emergency and Essential Surgical Care, 20075 10. World Health Organization, Health Action in Crises (HAC) Emergency Health Learning Kit List November 2003, 5 December 2004 at <http://www.who.int/entity/hac/en>.5 11. The World Medical Association Regulations (WMA), The World Medical Association Regulations in Times of Armed Conflict, October 1956, adopted by the WMA General Assembly, Tokyo 2004 at <http://www.wma.net/e/policy/a20.htm>......7 GENERAL REFERENCE DOCUMENTS 1. Britannica Encyclopaedia, Britannica Concise Encyclopaedia, 15th ed., 2007.. .2 2. Kent M., Oxford Dictionary of Sports Science and Medicine, 3rd ed.,

xii USA: Oxford University Press, 2007...2

SUMMARY OF ARGUMENTS
The honorable International Court of Justice is requested to determine the fate of a Xian doctor who is becoming a victim of an international political conflict. The life of the young, innocent and humane Dr.Hattin is at risk of being extradited to Alstaat to receive an unjust, politically-motivated and inhumane capital punishment for a crime he did not commit. Facing the threats in his home country, Rodmania has granted asylum to Dr.Hattin and denies Alstaats extradition request in respect of justice and also for the following reasons: Firstly, whereas extradition is sought under the pretext of International Humanitarian Law, Rodmania has no obligation to extradite under Art.129 of the Convention III 1 and Art.88 of the Protocol I.2 The Court should proceed with caution because Alstaat provides no credible proof required for a decision by this Court and attempts to go beyond possible conclusion that there was a grave breach, whereas in fact Dr.Hattin never met Mr.Gayload. The Court should dismiss the unfounded allegation due to absolute unreasonableness and failure to meet burden of proof. However, should the Court believe there is enough proof that the two persons have met, Rodmania still submits that Dr.Hattin had treated any prisoner, including Mr.Gayload, humanely by strictly respecting obligations under Art.13, 15 and 30 of the Convention III and under Art.10 and 11 of the Protocol I. The alleged mutilation and skin transplants were in fact amputation and wound excisions which were medical surgeries required to save the lives of Mr.Gayload and other prisoners. Dr.Hattin is thus protected by Art.16 of the Convention III from any punishment. Alstaat also failed to make a prima facie case which is required under Art.129 of the Convention III. Moreover, there is no extradition treaty between Alstaat and Romania. Therefore, there is no obligation for Rodmania to extradite Dr.Hattin to Alstaat as there was no grave breach and prima facie case.
1 Hereinafter for Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 2 Hereinafter for Additional Protocol I to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International

Armed Conflicts, 8 June 1977

xiii Secondly, Rodmania has a duty under international law to deny extradition. Primarily, Rodmania is bound by jus cogens, particularly as Rodmania is a party to CCPR3, to guarantee Dr.Hattin the fundamental human right to a fair trial, the right to life and the right to be protected from torture or cruel punishment. In this case, the bias and discrimination of Alstaat government towards Dr.Hattin can be clearly observed from the fact Alstaat need to see punishment of Xian nationals in order to prevent outrage of publics anti-Xian sentiments, especially after a failure to obtain a Xian Commander, and a recent leak of Dr.Hattins statement against Alstaat. It also has political interest to protect the radicals. Having no evidence to convict, it is very likely that Dr.Hattin will be tortured to confess. The Alstaat government has power to manipulate Alstaat court to punish Dr.Hattin by cruel hanging under its law. Thus, the extradition would expose Dr.Hattin to serious violations of fundamental human rights. Alternatively, Dr.Hattin has a well-founded fear of persecution in Alstaat and has become a refugee sur place before the extradition was requested. Rodmania has nonrefoulement duty under the 1951 Convention4 not to extradite, as his life and freedom is threatened by nationality due to Alstaats political motive and discrimination. Finally, even if Dr.Hattin committed any grave breach, Rodmania may bring Dr.Hattin to fair trial in its court instead of extradite under Art.129 of Convention III and Art.85, Art.88 of Protocol I (aut dedere aut judicare). Unlike Alstaat, Rodmania has no political motive or discrimination to punish Dr.Hattin. Rodmanias judicial and medical advancement are needed for a fair trial. Necessary evidence of the case, if there is any, can be obtained from Alstaat. This Honorable Court shall find in arguments, precise use of scientific facts with accurate applications of treaty laws, as well as international customs and general principles evidenced by state practices and opinio juris, affirmed by judicial decisions and teachings of the most qualified publicists, to justly conclude that Rodmania shall not extradite Dr.Hattin to Alstaat.
3 Hereinafter for International Covenant on Civil and Political Rights 4 Hereinafter for United Nations Convention on the Status of Refugees 1951

xiv

Arguments & Authorities

(15 pages)

1 I. RODMANIA HAS NO OBLIGATION UNDER INTERNATIONAL HUMANITARIAN LAW TO EXTRADITE DR.HATTIN TO ALSTAAT
A. DR.HATTIN COMMITTED NO GRAVE BREACH UNDER INTERNATIONAL HUMANITARIAN LAW

1. Dr.Hattin has never met Mr.Gayload and it was impossible to determine violation (i) International law gives Alstaat a burden to proof the basis of its submission It is a general principle to decide a case ex aequo et bono, as Publicist Ian Brownlie5 observes that considerations of fairness and reasonableness is necessary for the application of law.6 The International Court of Justice (I.C.J.) affirms this in the North Sea Continental Shelf7, the Fisheries Jurisdictions8, and the Frontier Dispute9, and so did the Permanent Court of International Justice (P.C.I.J.).10 Particularly, I.C.J. has reaffirmed the general principle of actori incumbit probatio, or when Applicant fails to proof, a submission should be rejected. 11 I.C.J. recently affirmed that it could not be convinced by hearsay evidence,12 as Publicist Antonio Cassese13 points out that hearsay evidence is inadmissible.14 National laws in most legal systems also provide that the Court cannot be convinced of a criminal act by simply relying on a testimony based on another statement with highly reasonable doubts.15 Above all, it is a general principle of law that a man is innocent until he is proven guilty.16 (ii) Alstaat has failed to proof the basic fact needed for determining violation (1) Alstaats entire case is simply based on personal speculation or hearsay evidence
5 Distinguished Fellow, University of Oxford; former Member International Law Commission Institut de Droit International 6 Ian Brownlie, Principles of Public International Law, Oxford, 2003, p.25. 7 The North Sea Continental Shelf Case, I.C.J. Reports, 1969, para.46-55. 8 The Fisheries Jurisdiction Case, I.C.J. Reports, 1974, para.30. 9 Frontier Dispute between Burkina Faso and Mali, I.C.J. Reports, 1986, para.631. 10 E.g. Wimbledon Case, P.C.I.J. Reports Series no.1, 1923, p.32; River Meuse Case P.C.I.J. Reports A/B no.70, 1937, p.77 11 Nicaragua, infra, note 29, para.101; Frontier Dispute, I.C.J. Reports 1992, para.63 12 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, para.226 13 Professor of international law, University of Florence; former President, ICTY 14 Antonio Cassese, International Criminal Law, Oxford, 2003, p.374. 15 This general principle is known as hearsay in common law countries or as inadmissible evidence rule in civil law countries, and also by

International Tribunal e.g. in Art.69(4) of the Rome Statute of the International Criminal Court
16 E.g. Art.11, Universal Declaration of Human Rights and Art.14, the International Covenant on Civil and Political Rights

2 In this case, Alstaat admitted that Mr.Gayload was in coma when the alleged mutilation occurred.17 Coma is a state of complete lack of consciousness18, and the comatose person is totally unresponsive to sensory stimuli.19 He regained conscious knowing where he was taken only after arriving in Alstaat, and merely used an unverified third partys story to accuse Dr.Hattin.20 Thus, it is impossible for Mr.Gayload to know who did what to him or to anyone at the Xian medical unit. In fact, the entire submission of Alstaat, accusing Dr.Hattin of serious violations of humanitarian law, is based on only one hearsay statement which could also be easily invented. There is also no other evidence, witness or motive whatsoever. (2) Alstaats allegations contradict with the circumstantial evidence of the case Alstaats allegations raise many reasonable doubts: [1] Crime against humanity
21

is in

nature a widespread or systematic attackagainst civilian population22, thus it is not possible under Mr.Gayloads combatant story, and it is ludicrous to suggest that Dr.Hattin systematically attacked Alstaat civilians. [2] Dr.Hattin was with a chief doctor, medical trainees and nurses23, thus any inhumane practice would had been noticed and intervened. [3] If there was such malpractice, there would be other reports of similar incidents, but the only one do far is the story of Mr.Gayload, or it would be easier to practice with corpse. [4] Dr.Hattin has a respectable profile of successfully gaining medical license and was accepted by a reputable medical school and a hospital in Rodmania;24 such good medical knowledge and ethics make malpractice unlikely. [5] Recent innovations and therapy techniques
25

allow persons with leg

amputation to live without suffering; and no evidence suggests that Mr.Gayload suffers any
17 Problem, para.14 (a) line 5, his leg was mutilated by Mr.Hattin while he was in a state of coma 18 See Coma, Britannica Concise Encyclopaedia, 15th ed., 2007. 19 See Coma, Oxford Dictionary of Sports Science and Medicine, 3rd ed., 2007. 20 Clarification, para.10 indicates that Mr.Gayload does not even know the name of the person he had conversation with 21 Problem, para.14 (a) line 10: Alstaats Memorandum specifically accused Dr.Hattin of a crime against humanity 22 E.g. Art.7 of the Rome Statute of International Court of Justice; Art.3 of the ICTR Statute; Art.5 of the ICTY Statute 23 Problem, para.5,doctoral traineesnursesother staff members engaged in treatmentunder [a supervising doctor] 24 Problem, para.6;Clarification, para.4,6 indicate that Rodmania has high reputation and is more advanced in medicine 25 Cristian, Lower limb amputation, Demos Medical, 2005; Riley, Living with a Below-Knee Amputation, Slack Inc., 2005

3 aftereffects. [6] If Mr.Gayload suffers physiologically and lost the will to live as he claimed 26, his statement would lack credibility due to his ill state of mind. (3) Dr.Hattin has never seen or met Mr.Gayload at the Medical Unit Dr.Hattin and other medical personnel were outnumbered by the patients at the Xian medical unit and every patient was given the best possible care with unspecific assignment due to emergency.27 Nothing proofs that Dr.Hattin met or specifically treated Mr.Gayload. (iii) The claim should be dismissed due to unfairness and lack of necessary proof In this case, there is not a single credible proof that the two persons actually met or came into contact. Art.52 of the ICJ Statue and Art.57 of the ICJ Rules28 prohibit Alstaat from presenting new evidence at the hearing. At the same time, Rodmania is facing serious economic harm,29 while Dr.Hattins reputation is being destroyed due to serious allegation. Therefore, the Court should apply ex aequo et bono and actori incumbit probatio to reject Alstaats submission for fairness and reasonableness and also due to lack of necessary proof. 2. Alternatively, Dr.Hattin treated everyone humanely and no violation occurred (i) Dr.Hattin acted strictly according to the Humane Treatment Principle (1) Obligations exist under Convention III Art.13,15, 30 and Protocol I Art.10 and 11 As part of the Xian medical unit, Dr.Hattin had obligation under Art.13 of the Convention III to avoid omissioncausing death or seriously endangering the health of a prisoner of war, and also under Art.10 and Art.11 of the Protocol I to provide to the fullest extent practicable and with the least possible delay, the medical care and attention required by [prisoners] condition and to avoid any unjustified act or omission. Dr.Hattin also had obligations under Art.15 and Art.30 of the Convention III to provide medical attention
26 Problem, para.14 (a); a person who has serious psychological damage would not be able to give accurate statements 27 Problem, para.5 and 8 28 Art.52 Statute of I.C.J., After...the time specifiedit may refuse to accept any furtherevidence.; Art.57, Rules of Court, party shall

communicate to the registrarbeforeoral proceedingsany evidence which it intends to produce

29 Problem, para.11 shows that Alstaat has frozen the assets of Rodmania to the serious level that it became a dispute

4 required by [prisoners] state of health especially when [prisoners] condition necessitatesa surgical operation. These obligations are the humane treatment principle. The International Committee of Red Cross (ICRC) describes the principle to be general and absolute in character30 and that captivity must not hinder the treatment of the prisoners serious illness or injury31. In Corfu Channel Case, I.C.J. referred to humane treatment as elementary consideration of humanity.32 This was also restated in the Nicaragua case.33 Publicists such as Jean Pictet34 and Ingrid Detter35 also reaffirm that it is the first obligation under this principle to protect the life and health of prisoners. 36 ICRC also explains that everyone has a duty to consider possibilities existing at the place and at the time [the prisoner is] cared for. What is required is that everyone does his utmost.37 (2) Dr.Hattin had obligations to perform Amputation and Wound Excision Rodmania contends that the alleged mutilation and tissue removal were in fact surgical operations38 called Amputation and Wound Excision. The Gale Encyclopedia of Surgery defines amputation as a surgical removal of a limb or a body part, and excision as the cutting out of a part, organ, or tissue; both are generally accepted as medical treatments.39

30 ICRC (J. de Preux), Commentary III Geneva Convention relative to the treatment of prisoners of war, 1994, p.140 31 Ibid, p.221 32 The Corfu Channel Case, I.C.J. Reports 1949, p.22 33 Military and Paramilitary Activities in and Against Nicaragua Case, I.C.J. Reports, 1986, para.215-8 34 Late Vice President of ICRC; President of the Henry-Dunant Institute; President, Geneva Convention Expert Conference 35 Professor of International Law, Stockholm University, Law of War Expert and International Law adviser to the Holy See 36 J. Pictet, Red Cross Principles, 1956, pp.14-31; cf. Ingrid Detter Frankopan, The Law of War, Cambridge, 2000, p.327 37 ICRC (Sandoz, Swinarski and Zimmermann Eds.), Commentary on the additional protocols of 8 June 1977, para.451 38 Clarification, para.10, the action was described as surgical operation with no reference to mutilation or tissue transplant 39 Senagore, The Gale Encyclopaedia of Surgery, Thomson Gale, 2003 see amputation, excision; cf. Smith Michael and Bowker (eds.),

Atlas of Amputations and Limb Deficiencies, American Academy of Orthopaedic Surgeons, 2004

5 Amputation is approved by World Health Organization, ICRC and BMJ40 as emergency medical surgery in times of war.41 BMJ also suggests that ballistic injurieswill result in traumatic amputation of limbsso severe that surgical amputation is necessary42 In this case, Mr.Gayload had a gunshot wound and was in Coma43. This medical fact suggested that Mr.Gayload suffered ballistic gunshot trauma and was unconscious of pain44; and such injury could lead to death from several causes such as trauma shock, gangrene (death of tissue) or arterial complications.45 If Mr.Gayload in such condition was one of Dr.Hattins patients, Rodmania submits that Dr.Hattin did respect humane treatment principle by performing an amputation which he deemed necessary at the time, 46 as BMJ suggests the decision to amputate should come at the time of wound assessment.47 For Wound Excision, ICRC, BMJ and British Journal of Surgery recommend it for severe burns cases.48 Dr.Hattin also performed this surgery for patients with severe burn. 49 In the opposite, grave breach would have occurred by Dr.Hattins failure to act (Art.86 of Protocol I) by omitting amputation or excision, or by not providing other fullest practicable medical treatments, and left any prisoner to suffer or die from such war injuries. He did not. (3) Amputation and Excision were allowed under Convention III and Protocol I Rodmania contends that although mutilation and removal of issue for transplant are normally prohibited, the amputation and wound excision were allowed under Art.13 of the
40 The highly respected British Medical Journal published since 1840

[note 37 and 38 continues on the next page ]

41 WHO, Health Action in Crises, 2003; also WHO, Best Practice Guidelines on Emergency Surgical Care; Coupland, Amputation for war

wounds, ICRC, 1992, Gray, War wounds: basic surgical management, ICRC, 1994; Molde, Surgery for Victims of War, ICRC, 1998; Mannion and Chaloner, Principles of war surgery, BMJ vol.330, June 25 2005, p.1500
42 BMJ, Ibid, p.1500 43 Problem, para.14(a); this fact was conceited in Alstaats memorandum 44 Young, Ropper and Bolton, Coma and Impaired Consciousness, McGraw-Hill, 1997; Gale, Supra, note 35, see trauma 45 The Gale Encyclopaedia of Surgery, Supra, note 35, also Society of Vascular Surgery at http://vascularweb.org 46 Problem, para.8 at the time it was the only way to save those who wounded 47 BMJ, Supra, note 37, p.1500 48 Supra, note 37; R. Coupland, Technical aspects of war wound excision, British Journal of Surgery 1989:76, p.663 49 Problem, para.14 (a), Alstaat alleged Dr.Hattin of removing burned skin tissue for transplant practice

6 Convention III and Art.11 of the Protocol I: it was carried out in [Mr.Gayloads or other prisoners] interest and was justified by the medical treatment indicated by the state of health of [Mr.Gayload or other prisoner] which was [consistent] with generally accepted medical standards which would be applied under similar medical circumstances to [other Xian nationals50]. ICRC suggests that there are some logical exceptions to such prohibition and that international humanitarian law does not prevent doctors from using treatment [e.g. amputation or excision] to improve the patients conditions.51 In particular, ICRC explains some mutilations may be indispensable, such as the amputation of a gangrenous limb.52 Customary international law also allows amputation or excision to save life53. Such practice and opinio juris can be observed from numerous military manuals54. Similarly, Art.30 of the ICC Statute55 as well as decisions of ICTR and ICTY 56 require criminal intent in war crimes or crimes against humanity. The International Law Commission also defined mutilation as act of inhumanity, cruelty or barbarity and doubted whether the term should be included.57 European Court of Human Rights also ruled that treatment normally prohibited is allowed if intended for therapeutic purposes.58 In this case, the amputation and excision were medically justified and were intended to save Mr.Gayload or any prisoners life, and was also in line with Rodmanias interpretative declaration of Art.11 of Protocol I.59 Thus, Dr.Hattins did not commit any grave breach.
50 Problem, para.8 shows that patients of all nationals were treated in the same way by the Xian medical unit 51 Supra, note 26, p.141; see also Supra, note 33, para.479 52 Supra, note 33, para.480 53 Henckaerts and Doswald-Beck, Customary International Humanitarian Law vol.1 rules, Cambridge, 2005, see rule 92 54 Argentina, Law of War Manual, S.2.013, Australia, Commanders Guide, S.1305(m) Canada, Law of Armed Conflict Manual, S.15(a-b),

Ecuador, Naval Manual, S.11.4, France, Armed Conflict Manual, p.45; Germany, Military Manual, para.606 and 608; Italy, Humanitarian Law Manual, Vol.1, S.41(e); New Zealand, Military Manual, S.1003, Senegal, Humanitarian Law Manual, S.3-24, US, Field Manual, S.89
55 Art.30 [A] person shall be criminally responsible[]only if the material elements are committed with intent 56 E.g. ICTR Prosecutor v. Kayishema-Ruzindana(1999) para.153; Prosecutor v. Musema(2000), para.285; ICTY Prosecutor v. Blaskic (2000)

para.154; Prosecutor v. Kordic-Cerkez (2001) para.256; Prosecutor v. Naletilic-Martinovic (2003) para.246

57 Yearbook of ILC: 1994, vol. II(2), page 39; Yearbook of ILC: 1996, vol. I, p.82-85 58 Herczegfalvy v. Austria, 1993; see also Kriangsak Kittichaisaree, International Criminal Law, Oxford, 2001, p.170-1 59 Problem, para.2 and note 1; see p.15 of this memorial, infra, note 115, on the meaning of the interpretative declaration

7 (ii) In any event, Dr.Hattins medical activities cannot be considered a violation (1) Art.16 of the Protocol I protects ethical medical activities Rodmania submits that Art.16 of the Protocol I protects any person from being punished for carrying out medical activities compatible with medical ethics. ICRC affirms that this article is particularly concerned with those performing medical activities or activities related thereto, whether or not they are considered to be medical personnel in the sense of the Protocol.60 Moreover, the obligation to protect medical duties applies not only to enemy authoritiesbut to all authorities in a position to administer the punishment61. (2) Dr.Hattin is protected under Art.16 of the Protocol I As far as medical ethics are concerned, Dr.Hattin performed amputation according to the general medical ethics62 and particularly of the World Medical Association63 (WMA) which adopted Regulations in times of armed conflict
64

as part of WMA declarations on medical

ethics. The regulation specifically states the primary task of the medical profession is to preserve health and save life. Nothing in the regulations prohibits amputation or excision. The amputation allowed Mr.Gayload to live until today. Necessary excision, able to save life or not, was still ethical nonetheless. Therefore, no one may punish or prosecute Dr.Hattin for performing his medical duties, and no violation or grave breach could occur in this case. B. THE CONDITIONS TO EXTRADITE DR.HATTIN HAVE NOT BEEN MET IN THIS CASE 1. There is no grave breach and Rodmanian law does not allow extradition States intentionally made extradition not an obligation.65 Under Art.129 of Convention III, only in case of a grave breach, Rodmania is not obliged to, but may alsoif it prefersin accordance withits own legislationhand such persons over, also under Art.88 of
60 Supra, note 33, para.649 61 Ibid, para.650 62 Amputation and Wound Excision, as already discussed in Argument I A 2 (i) (2.), see page 4 of this memorial 63 Founded in 1947 constituting of medical associations in more than 80 countries, See http://www.wma.net/ 64 Edited by the WMA General Assembly, Tokyo 2004, See http://www.wma.net/e/policy/a20.htm, 65 Official Records of the Diplomatic Conference, Geneva, 1974-1979, IX, p.149; see also Supra, note 33, para.3401

8 Protocol I when circumstances permitshall co-operate, provided that the law of Rodmania applies in all cases. Rodmania submits that its law follows the general principle of Double Criminality, affirmed by many treaties,66 and also Publicists67 such as M. Cherif Bassiouni68, Geoff Gilbert69 and Ian Brownlie, that the alleged acts of the person whose extradition is sought must be a crime of both the requesting and the requested states. In this case, Dr.Hattin neither committed grave breach nor any crime under Romanian or Alstaat law.
70

Therefore, Rodmania has no obligation, and is not allowed under its law, to extradite. 2. There is no general obligation under international law to extradite Dr.Hattin It is also a general principle that there is no general duty to extradite, except by treaty

obligation.71 Publicist Ian Brownlie explains that in the absence of a treaty, surrender of an alleged criminal cannot be demanded as of right72 and in Lotus Case, the P.C.I.J. reaffirmed that between two states, persons may not be arrested, a summon may not be servedexcept under the terms of a treaty73 In this case, Rodmania has no extradition treaty with Alstaat,74 thus there is no general international obligation to extradite Dr.Hattin. 3. In any event, Alstaat failed to make a prima facie case against Dr.Hattin A prima facie case is evidence which would be sufficient to justify trial. Art.129 of the Convention III imposes a duty on Alstaat to make a prima facie case against Dr.Hattin as it is

66 E.g. Art.2(1), UN Model Treaty on Extradition; Art.1(1), European Convention on Extradition (1957); Art.3(1), Inter-American Convention

on Extradition (1981); Art.3(1), Economic Community of West African States (ECOWAS) Convention (1984); Art.56(3), the Minsk Convention (1993)
67 Bassiouni, International extradition and world public order,p.7; Gilbert, Infra,note67,p.106; Brownlie, Supra,note2, p.313 68 President, the International Institute of Higher Studies in Criminal Sciences; former Chairman, the UN ICC Conference 69 Professor of International Criminal law, University of Essex; Editor, International Journal of Refugee Law 70 Due to the reasons discussed in Argument I A., see page 1-7 above in this memorial 71 Bassiouni, Supra, note63, p.3; Gilbert, Transnational fugitive offenders in international Law,1998,p.47; S. Kapferer, Interface between

extradition and asylum,UNHCR,2003,p.3; I. Shearer, Extradition in international law, Oceana, 1971, p.27
72 Ian Brownlie, Supra, note 2, p.313; Malcolm M. Shaw, International law, Cambridge, 2003, p.610 73 The Lotus Case, P.C.I.J. Reports Series A. No. 10, 1927 74 Problem, para.2

9 a special condition attached to the extradition.75 The requirement is not only to protect individuals against excessive or unjustified requests, but also to ensure that penal proceedings as envisaged will not be frustrated or reduced in scope as a result of the transfer to another Contracting Party.76 Customary international law, reflected in extradition treaties77, require requesting States to submit evidence, arrest warrants, descriptions of allegations and laws, identification of the fugitive etc. Many States accept only a certain format of evidence e.g. sworn affidavits by direct witnesses, while other types of evidence such as hearsay is excluded.78 Even if there was a grave breach, prima facie is still required before extradition. In this case however, Alstaat has failed to establish a prima facie case. Alstaat took no more than 2 months79 relying simply on a single hearsay story of Mr.Gayload to conclude that there has been a violation of international humanitarian law. No further evidence or necessary documents were provided to Rodmania, and thus extradition cannot be granted. II. IN ANY EVENT, RODMANIA HAS A DUTY TO DENY EXTRADITION A. RODMANIA IS BARRED BY JUS COGENS FROM EXTRADITING DR.HATTIN 1. Discriminating government and weak judiciary in Alstaat renders unfair trial Rodmania has a duty80 to guarantee of the right of an individual to a fair trial under Art.14 and 15 of the CCPR and Art.10 of the Universal Declaration of Human Rights. The Human Rights Committee affirms it as a peremptory norm of international law.81 Art.1(3), 2(5) and 103 of the United Nations Charter also oblige Rodmania to respect human rights above all other obligations. International humanitarian law, under para.4 of Art.129 and 105 of
75 ICRC, Supra, note 26, p.623, see also M. Plachta, Contemporary Problems of Extradition: Human Rights, Grounds for Refusal and the

Principle Aut Dedere Aut Judicare, UNAFEI Resource Material Series (2001), p.72
76 Supra, note 33, para.3567; see also M. Plachta, Supra, p.79 77 E.g. Art.12(2), European Convention on Extradition; Art.11, Inter-American Convention on Extradition; Art.18; ECOWAS Convention;

Art.9, Convention against torture and other cruel, inhuman or degrading treatment or punishment
78 Jones, Jones on Extradition and Mutual Legal Assistance, 2001, at pp. 354363; see also M. Plachta, Supra, note 71, p.79 79 Problem, para.6-7 shows the period between September November 2005 80 Problem, para.2 (Rodmania is a member of the United Nations; Clarification, para.2: Rodmania is a party to the CCPR) 81 General Comment No. 29 on States of Emergency, 2001, UN doc. CCPR/C/21/Rev.1/Add.11, para.11

10 Convention III and also under Art.75 (4) of Protocol I, clearly illustrate that to assure safeguards of proper trial is a fundamental duty of all contracting parties.82 Moreover, international custom and general principle, seen in numerous extradition treaties83 and national legislations,84 provide that extradition may be denied if it is clear that a fair trial is unlikely in the requesting state, or if the request is in fact made with persecutory or discriminatory intent for example on the selective ground of race, religion or nationality. In this case, Dr.Hattin would certainly face an unfair trial and discrimination in Alstaat. These facts must be jointly deliberated: [1] Alstaat has political interest to support guerrilla radicals85 and [2] declared that the radicals will not be eliminated unless, specifically, it sees Xian nationals punished.86[3] Anti-Xian sentiments politically pressure Alstaat government to punish Xian especially after [5] failing to obtain the Xian commander,87 and [6] after Dr.Hattins statement attacking Alstaat was leaked to Alstaat public.88 From these facts, it is the only political solution of Alstaat government is to use the power it has over its court89 to punish Dr.Hattin despite his innocence to meet its two goals. First is to avoid humiliation and public outrage, and second is to deny its duty to eliminate radicals by using the punishment of Dr.Hattin, now without Xians help, to show the failure of the ceasefire agreement. Thus, Rodmania has a duty to deny the extradition to guarantee Dr.Hattin the right to a fair trial. 2. Dr.Hattin is exposed to inhumane capital punishment and torture in Alstaat
82 Supra, note 33, para.3404 83 E.g. Art.3(b), UN Model Treaty; Art.5,Convention relating to extradition between member states of European Union; Art.4,Inter-American

convention on extradition;Art.4,ECOWAS convention;Art.9,Convention against the taking of hostages ;Art.12,Convention for suppression of terrorist bombings;Art.15,Convention for the suppression of the financing of terrorism
84 E.g. Australia (s.7(b) Extradition Act; Bosnia and Herzegovina (s.415 Code of Criminal Procedure); China(s.8(d) Extradition Law;

Germany(s.6(2) Law on International Legal Assistance);Indonesia (s.7, Act on Extradition);Romania(s.9 Law on Extradition);The Netherlands(s.10 Extradition Act); UK (s.6(1) Extradition Act); Zambia (s.32 Extradition Act)
85 Problem, para.3 indicates that Alstaat officially sent troops to stop Xian troops from fighting the guerilla radicals 86 Memorandum of Alstaat, Problem para.14 (c) line 12 87 Problem, para.8 88 Problem, para.8-9, also at note 3 indicating that the original strong statement was leaked to a major newspaper in Alstaat 89 Clarification, para.5 indicates that the Alstaat government has stronger power over the Alstaat judicial machinery

11 Rodmania has a duty under Art.6, 7 of CCPR, Art.3, 5 of the Universal Declaration of Human Rights and also under UN Charter90, to guarantee the right to life91 as well as the right not to be tortured. The Human Rights Committee and Publicists affirm that countries that abolished death penalty have a duty to deny extradition of individuals who might risk death penalty.92 The international custom and general principle evidenced by numerous treaties93 and national legislations94 also provide that extradition is denied to a State that has capital punishment or has torture or cruel or inhumane punishment, unless requesting state assures that such penalty will not be applied. Publicist A. H. Robertson95 very well stressed that the application of humanitarian law must be on the basis respect for human rights.96 In this case, the allegation and unfair trial expose Dr.Hattin to cruel hanging which is frequently executed.97 Alstaat never assure other kinds of punishment. It is also probable that Dr.Hattin will be tortured to falsely confess of the crime due to Alstaats lack of evidence. Therefore, Rodmania who rejects capital punishment has duty to deny the extradition. B. ALTERNATIVELY, RODMANIA HAS DUTY TO GRANT AN ASYLUM TO DR.HATTIN 1. Dr. Hattin is considered a refugee under Art.1 A (2) of the 1951 Convention (i) Dr.Hattin has a well-founded fear of being persecuted in Xian and in Alstaat UNHCR explains that well-founded fear contains two elements, one subjective (fear) and one objective (well-founded), both elements must be evaluated together 98, and endorses
90 Clarification, para.2; Problem para.2 see UN Charter Art. 1(3), 2(5) and 103 already discussed on page 9 of the memorial 91 Art.6 (1) CCPR reads Every human being has the inherent right to lifeNo one shall be arbitrarily deprived of his life. 92 Cox v.Canada, October 1994, UN doc.CCPR/C/52/D/539/1993, para.16; see Lauterpacht and Bethlehem, infra, note 107 93 Art.4,UN Model Treaty;Art.11,European Convention on Extradition;Art.17,ECOWAS Convention;Art.9,Inter American Convention on

Extradition; Art.3, Convention against torture and other cruel, inhuman or degrading treatment or punishment
94 E.g. Argentina (s. 8,Law on International Assistance in Criminal Matters);Australia (s.22,Extradition Act);Canada,(s.44, Extradition Act);

China(s.8(g) Extradition Law); Finland(Art.9, Constitution); Germany(s.8 Legal Assistance in Criminal Matters); Spain (s.4,Passive Extradition Law);Switzerland (s.37, Law on International Legal Assistance in Criminal Matters)
95 Late Professor, University Paris I; Director of Human rights at the Council of Europe; Human Rights Expert to the UN 96 A. H. Robertson, Acte du congrs international de droit, 1970, p.174; Calogerospoulos-Stratis, Droit humanitaire de droit de lhomme, la

protection de la personne en periode de conflict arm,1980,p.139; Frankopan , Supra, note 32, page 161
97 Clarification, para.3 indicates that at least 3 death penalties by hanging are sentenced in Alstaat each year 98 UNHCR, Note of burden and standard of proof in refugee claims, p.13; see also infra, note 101, para.37

12 judicial decisions ruling that reasonable possibility is enough to justify the well-founded fear. The House of Lords used the notion reasonable chance and rejected more likely than not, the US Supreme Court used reasonable possibility, other courts e.g. in Australia or Canada ruled similarly.99 Publicist Guy Goodwin-Gill100 affirms that subjective fear must be based on an objective situation;101 or that fear can be explained by known facts. In this case Dr.Hattins fear is based on objective elements: In November 2005 [1] Alstaat accused Dr.Hattin of humanitarian violations; [2] Xian instantly began a criminal investigation without proof or prima facie102; [3] the cease-fire agreement forces Xian to have Dr.Hattin punished to force Alstaat to eliminate radicals in return. This is even more objective since [4] Alstaat directly seeks extradition and [5] angrily froze Rodmanias assets. Moreover as already explained103, Alstaat government has [6] social pressure from AntiXian sentiments and attacking statement leaked to a major newspaper; [7] failed to obtain the Xian general once; [8] political interest to keep the radicals by punishing Dr.Hattin without Xians help; [9] power over the court; [10] executed frequent cruel hanging under Alstaats law; and [11] restated to immediately start criminal prosecution104 without prima facie. These objectively justify Dr.Hattins fear of reasonably possible unfair trial, torture and capital punishment, whether done by Alstaat alone, or with the help of the Xian government. (ii) Persecution of Dr.Hattin is for reasons of his nationality and particular social group Art.1 A (2) provides that the well-founded fear of being persecuted must be for reasons of inter alia nationality or membership of a particular social group. As just explained above,
99 U.K. House of Lords, Fernandez v. Government of Singapore, 1971, AD ER 690, p.695; U.S. Supreme Court, I.N.S. v. Cardoza-Fonseca, 67

U.S. 407, 1987, p.453; Canadian Federal Court of Appeal, Salibian v. Canada, 1990, 3 F.C., p.250; Australian High Court, Chan v. Minister for Immigration and Ethnic Affairs, 1988, 15 ALD, p.751
100 Senior research fellow, University of Oxford; founding editor, International Journal of Refugee Law; Expert of UNHCR 101 Guy S. Goodwin-Gill, The Refugee in International Law, London, 1996, p.38 102 Problem, para.7-8, Xian immediately ordered Dr.Hattin to face criminal authority on the same month of November 2005 103 Due to the circumstance already discussed in Argument II A. 1, see page 10 of this memorial 104 Problem, para.14 (c) line 16, the language indicate that Alstaat already has a mindset to punish Dr.Hattin

13 Alstaats persecution by unfair trial and capital punishment is due to his Xians nationality and his membership of the Xian force at the conflict. These are resulted from the social pressure and also the political reasons of Alstaat. The same logic applies to the persecution by Xian who sees Dr.Hattin as a fitting tool to force Alstaat to eliminate the radicals. He is also not a member of elite government officials such as the General which Xian needs to protect. (iii)Dr.Hattin has become refugee sur place since November 2005 prior to Alstaats request UNHCR affirms that Art.1A (2) is not limited to those leaving a country on account of a well-founded fear of persecution, but also where this fear arises after she or he has left the country of origin, she or he would be a refugee sur place, providing the other elements in the refugee definition were fulfilled.105 For refugee sur place, fear can be caused by recent political activity,106 or change of relevant circumstances that would lead to persecution if returned to that country; while applying for asylum can also be a cause. 107 UNHCR also affirms that a refugee status is declaratory in nature and needs no formal recognition.108 In this case, Dr.Hattin is a refugee sur place due to his well-founded fear since November 2005. His declared status is now confirmed by the Refugee Examination Committee. 109 2. Dr.Hattin does not fall under Art.1 F (a) of the 1951 Convention There are no serious reasons to consider any possible crime against humanity. As explained, there is no widespread or systematic attack on civilians; and the refugee committee with ad hoc medical expert has approved Dr.Hattins actions and rejected Alstaats hearsay. 3. In any event, non-refoulement under Art.33 (1) applies to Dr.Hattin (i) Rodmania cannot send Dr.Hattin to Alstaat as his life and freedom is threatened

105 UNHCR, Guidelines on the international protection: the application of Article 1A(2) of 1951 Convention, 2006, para.25 106 UNHCR, Handbook on procedures & criteria for determining refugee status under the 1951 Convention, 1992, para.94-5 107 Klin, Flight in times of war, IRRC 83, 2001; Hagard, North Korean refugees crisis: HR &International Response, 2006 108 Supra, note 102, para. 28; see also Art.14 of the Universal Declarations of Human Rights 109 Problem, para.9 and note 2: the Committee with a medical expert concluded the 1 year examination in December 2006

14 Rodmania has non-refoulement duty under Art.33 (1) of the 1951 Convention to not send Dr.Hattin to face persecution in Alstaat. UNHCR affirms that refugees should be protected in regard to extradition to a country where they have well-founded fear reasons to fear persecution and Publicist Guy S. Goodwin-Gill stressed that non-refoulement principle is critical in assuring fundamental rights of the person whose extradition is sought.110 UNHCR and Publicists stress that non-refoulement applies to asylum seekers that has not obtained formal recognition, and under no circumstances can a state send a person to risk torture or cruel, inhuman or degrading treatment or punishment; peremptory norm of international law, or jus cogens imposes an absolute ban on such kind of surrender. 111 As already explained in this case, Dr.Hattin has a well-founded fear of unfair trial, torture and cruel hanging in Alstaat. Therefore, Rodmania has a duty to protect Dr.Hattin from the persecution in Alstaat, whether as a refugee sur place or even only as an asylum seeker waiting for formal recognition; as Publicist Jean Pictet stressed that humanitarian law must be considered in respect of the refugee law, which also rests on human rights principles.112 (ii) Exceptions under Art.33 (2) cannot be applied to deny Dr.Hattins asylum Dr.Hattin is not a danger to community or security of Rodmania, and is not convicted of any crime. In fact he obtained a respectful job as a doctor in a Rodmanian hospital.113 III. IN THE UNLIKELY ALTERNATIVE, DR.HATTIN SHOULD BE TRIALED

IN RODMANIA AND IS NOT TO BE EXTRADITED A. RODMANIA HAS JURISDICTION UNDER THE PRINCIPLE AUT DEDERE AUT JUDICARE

110 UNHCR Executive committee conclusion no.17Problem of extradition affecting refugees,1980; Supra, note97, p.148 111 Lauterpacht and Bethlehem, The scope and content of the principle of non-refoulement: opinion in Refugee protection in international

law: UNHCRs global consultations on international protection, 2003; Factum of the Intervenor UNHCR, Suresh v Minister of Citizenship & Immigration, I.J.R.L., p.141; see jus cogens & human rights in Argument II A, p.9-11
112 Pictet, Humanitarian law and protection of war victim,1975,p11; Dvelopment et principe du droit humanitare, 1983,p.4 113 Problem, para.9, see also the respectable profile of Dr.Hattin in Argument I A. 1 (ii), on page 2 [4] of this memorial

15 Even if Dr.Hattin committed any grave breach, Art.129 of Convention III and Art.85 of the Protocol I allow Rodmania to bring Dr.Hattin before its Court while extradition is only an option.114 Publicists Antonio Cassese and M. Cherif Bassiouni clarify this as a general principle of aut dedere aut judicare, or that grave breaches of humanitarian law give rise to universal jurisdiction.115 In this case, Rodmanian criminal code can punish crimes116 of grave breach, and may bring Dr.Hattin before its court similar to other national courts that recognized jurisdiction of a war crime committed by non-nationals outside their territories117. B. RODMANIA GAVE DUE CONSIDERATION IN DENYING THE EXTRADITION REQUEST Under Art.88 of the Protocol I, Rodmania has given due consideration to the request of [Alstaat]. Rodmania is [1] not involved in the Alstaat-Xian conflict; [2] not pressured by the ceasefire agreement [3] has no anti-Xian sentiments; [4] has impartial judicial procedure and medical care evaluation scheme ahead of Alstaat118 needed for accurate evidence findings; [5] made an unopposed declaration on interpretation of Art.11 of the Protocol I, to use its medical standards and ethics, also ahead of Alstaats,119 to allow better treatment of prisoners by imposing Dr.Hattin with higher standard of treatment duty (this is a normally accepted and welcomed by States120). [7] Alstaat also has a duty under Art.88 (1) of Protocol I to supply evidence to Rodmania, if there is any, as a measure of assistance for the criminal proceedings of this case. Therefore, Rodmania is a proper place for prosecution for Dr.Hattin in this case. IV. SUMMARY AND SUBMISSIONS

114 See Argument I B. 1 on p.7 of memorial; see also ICRC, Supra, note 26, p.623; ICRC, Supra, note 33, para.3403,3577 115 Cassese Supra, note 10, p.8; Bassiouni, International Extradition: US law and practice, 1996, p.425; Frankopan, Supra, note 32, p.425;

ICRC, Supra, note26, p.623; ICRC, Supra, note 33, para.3403-577; see also M. Plachta, Supra, note 72, p.72
116 Clarification, para.3 (Rodmanian Criminal Code may punish such crime irrespective of nationality or place of offence) 117 E.g. Case of Prisoners of War in Bosnia, Tribunal de grande instance,1994; Kadic v.Karadzic, US Court of Appeals, 13 October 1995; Case

of Bosnian Serb, Hoge Raad (The Supreme Court of the Netherlands), Strafkamer, 11 November 1997
118 Problem, para.8,9 a medical doctor has been invited to examine Dr.Hattins refugee status; Clarification, para.4 and 6 119 Clarification, para.4, 6: this case requires medical expertise to determine the medical standard and ethics of Dr.Hattin 120 For Canada, Reservations and statements of understanding made upon ratification of Protocol I, 20 November 1990, para.1; Ireland,

Declarations and reservations made upon ratification of Protocol I, 19 May 1999, para.2-3

16 The Government of Rodmania respectfully requests the Court to adjudge and declare that: 1. The unproven claims and the unfounded submission(s) of Alstaat are entirely dismissed; 2. Rodmania has no obligation under international humanitarian law to extradite Dr.Hattin; 3. In any event, Rodmania has a duty under international law to deny the extradition request; 4. Alternatively if Dr.Hattin committed a grave breach, he shall have a fair trial in Rodmania.