MC4: Jurisdiction and Immunity Problem Question Intro: TOBA - all essays What to do between now and the TOBA: don't revise, In order to consolidate the contents of the cycles concerning jurisdiction and immunity, we will consider the following problem question: General Monty was a member of the military government of Abalonia. He was head of the armed forces, and during the period 1998-2000 he was responsible for putting down a radical political uprising in Abalonia. It is alleged that in doing so he used the services of the ANF, a paramilitary group. It was also alleged that the ANF was a secret army under the control of senior members of the military government. During this period the leaders of the ANF entered into a number of long-term contracts for the supply of arms and equipment. These contracts were entered into by leaders of the ANF with Oxon Co., a private arms manufacturing company based in neighbouring Bolonia. During the course of the uprising Bolonia became increasingly critical of the measures taken by Abalonia to counter it, and in particular the violations of human rights. Abalonia responded to this criticism by refusing to honour all contracts entered into with nationals of Bolonia, as a result of which Oxon Co. is owed considerable sums by Abalonia. In January 2001 General Monty retired from the Government of Abalonia. The Government of Abalonia proclaims that he was the saviour of the nation and passes legislation which exonerates him from any legal proceedings which might be against him relating to the period in which he held the office of head of the armed forces. The government of Bolonia, concerned that General Monty may never be brought to account, authorise their secret service to kidnap him at his home in Abalonia and bring him to Bolonia where he will face criminal proceedings for the alleged human rights violations. The secret service carry out the kidnap and General Monty is currently detained in prison in Bolinia pending the commencement of proceedings against him. You are asked to advise on the aspects of international law which might be raised: 1. In relation to criminal proceedings against General Monty concerning: a. his arrest b. the assertion of jurisdiction over crimes alleged to have taken place in Abalonia c. any claims to immunity he might make AND 2. In relation to civil proceedings that Oxon Co. might take in the courts of Bolonia against the leaders of the ANF for breach of contract.
Responsibility of Abolonia (A) for actions of ANF Articles on State Responsibility Article 8 The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. Two possibilities: A. 'effective control' (Nicaragua) - 'it would ... be have to be proved that the State had effective control of the