CLEA (ASIA-INDIA) MOOTING COMPETITION, 2016

TEAM CODE CLEA007

CLEA (ASIA-INDIA) MOOTING COMPETATION 2016

IN THE INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS
CASE CONCERNING THE DISPUTE IMMUNITIES AND CRIMINAL
PROCEEDINGS
REPUBLIC OF ANDORRA
(APPLICANT)
V.
UNITED REPUBLIC OF ASIAN
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBERIVIATION.......................................................................................v
INDEX OF AUTHORITIES........................................................................................viii
STATEMENT OF JURISDICTION............................................................................xi
STATEMENT OF FACTS............................................................................................ xii
QUESTIONS PRESENTED.........................................................................................xv
SUMMARY OF PLEADINGS.....................................................................................xvi
PLEADINGS.................................................................................................................1-20
1.

WHETHER THERE WAS ANY BREACH OF PRINCIPLE OF SOVEREIGNTY

AND NON-INTERFERENCE BY URA? .............................................................1

1.1 URA

has

not

breached

its

Obligations

under

general

International

Law...................................................................................................................1
1.1.1

URA has responsibility to protect Global Community.........................2

1.2 URA has respected International Treaty Obligation because it has jurisdiction under
.

UNCTOC........................................................................................................2
1.3 URA has jurisdiction under UNCAC...............................................................3
1.4 URA has acted under Universal Jurisdiction of general International Law..... 3
1.5 URA can exercise Universal Jurisdiction under treaty obligation as well........5

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1.6 Mr. TTK Ganzard has committed International Crimes...................................7

1.6.1 Mr. TTK Ganzard has allegedly committed Money Laundering...................8
1.6.2 Mr. TTK Ganzard has allegedly committed Corruption................................8
1.6.3 Mr. TTK Ganzard has allegedly committed Human Trafficking...................9
2. WHETHER THERE EXISTS A LEGAL BASIS WHICH VALIDATES SEARCH,
SEIZURE AND OCCUPATION OF THE BUILDING? .........................................10
2.1 Search, Seizure and Occupation is validated under Customary International
.

Law...................................................................................................................10
2.2 It is not a Premise of Mission Under VCDR.....................................................11
2.2.1 VCDR was not designed for Individual Diplomatic Benefit.........................11
2.2.2 URA never consented to the premise of mission.............................................11
2.2.3 The building was sold after a complaint was filed Accountability International..12
2.2.4 The transfer of building to Govt. of Andorra was against the Doctrine of lis

pendens..............................................................................................................12
2.2.5 Even if it the building was converted into diplomatic mission, URA has .
.

jurisdiction under UNCTOC, UNCAC and VCDR.........................................13

2.3 Validity of search, seizure and occupation under UNCTOC and UNCAC.........13

3. WHETHER MR. TTK GANZARD IS ENTITLED TO IMMUNITY? ................16

3.1 No immunity as a second Vice-President of Andorra.............................................16
3.2 No immunity as a Diplomat.....................................................................................17
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3.3 Immunity is a dwarfing principle of International Law..........................................18

3.4 No Diplomatic immunity when immunity is abused by diplomats.........................19
PRAYER.............................................................................................................................21

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LIST OF ABBREVIATIONS

Paragraph

Paragraphs

Section

Dollar

p.

page

pp.

pages

AI

Accountability International.

AJIL

American Journal of International law.

Art.

Article

Annex.

Annexure

Building

Palatial House at 18, Rose Avenue Manhattan,

URA

DRC

Democratic republic of Congo

Div.

Division

Ed./Edn

Edition

E.g.

Example

EU

European Union.

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Govt.

Govt.

ICJ

International Court of Justice

ICLQ

British Institute of International and

comparative law

ILJ

International Law Journal

Intl

International

No.

Number

Nov.

November

PCIJ

Permanent Court of International justice

QB

Queens Bench

Rep

Report

Rts.

Rights

S. Ct.

Cite this Source

Ser.

Serial

UNCTOC

United

Nation

Transnational
UNCAC

United

Convention

against

Organised Crimes.

Nations

Conventions

Against

Corruption.
UNESCO

United Nations educational, scientific and

cultural Organization

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UN

United Nations

UNTS

United Nation Treaty Series

USA

United States of America

UK

United Kingdom

Vol.

Volume

VCDR

Vienna Convention on diplomatic Relation,

1961

VCLT

Vienna Convention on Law of Treaties, 1969

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INDEX OF AUTHORITIES

AGREEMENTS, TREATIES AND CONVENTIONS

United Nations Convention Against Transnational Organized Crime, 2000.
United Nations Convention Against Corruption, 2004.
Vienna convention on diplomatic relations, 1961.
United Nations Convention Against Corruption Signature and Ratification status as of 21st
September, 2016.
Inter-American Convention Against corruption, 1997.
ACTS, REGULATIONS AND CODES
International Crimes and International Criminal Court Act of 2000.
Crimes Against Humanity and War Crimes Act of 2000.
Amending the Vienna Convention at 204.
A New Regime of Diplomatic Immunity: The Diplomatic Relations Act of 1978.
NATIONAL STATUTE
Federal Law No. 297-FZ, art1, Nov. 3, 2015.
U.S. Code 981.
The French Civil Code, 1804.

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The fourth amendment to the Constitution of the United States proclaims that, "the right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched
and the persons or things to be seized." U.S. CONST. amends. IV.
INTERNATIONAL AND NATIONAL CASE LAWS
Arrest Warrant case of 11 April 2000 (Democratic Republic of Congo v. Belgium),
Judgement, 14th February 2002; ICJ Rep 2002 (hereinafter Yerodia) at 75.
Prosecutor v Erdemovic, Sentencing Judgement case no. IT-96-22-T, Trial Chamber I, 29
Nov, 1996 (108 ILR 180).
Regina v. Finta, Canada, High Court of Justice, 10th july 1989, 93 ILR 426-427.
Ex Parte Pinochet, (HL 2) at 177d.
United states v. VerdugoUrqidez, 110 S. Ct. 1056 (1990).
Empson v. Smith, Queens Bench Division. 1 Q.B. 426 (1996).
Fatemi v United States, 192A.2D 525, 528 (DC 1963).
The shootout at the Libian self style peoples bureau: a case of state supported International
terrorism 30S.D.L rev.1,1-3, 1984.

BOOKS/ARTICLES/JOURNALS/LAW REVIEWS
Generally.B.Conforti. International Law and the Role of Domestic Legal System (1993);
R.A. Falk, the Role of Diplomatic Courts in the International Legal Order (1964).
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Oppenheim, International Law-A Treatise 21a (7th ed. Lauterpacht 1948-1952).

Malanczuk
Bledsoe and Boczek
Arthur J. Goldberg
Hazel Fox and Philippa Webb, The Law of State Immunity, Section 20 0f SIA.
Brewster, Antitrust and American Business Abroad 286 (1958).
Procedural Codes of Austria, 99; Germany,' 23; Japan, 8; Sweden, ch. 10, 3. For the
pertinent sections of the various Swiss cantonal codes, see 1 Guldener, Das Schweizerisches
Zivilprozessrecht 76 (1947). See generally, Wolff 72.
The Antelope, 23 U.S. (10 Wheat.) 66, 123 (1825) ("The courts of no country execute the
penal laws of another."); Neuhaus, Die Grundbegriffe des Internationalen Privatrechts 120
(1962); 4 Niboyet, Traite No. 1111, at 29.
Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around
the World 2012 Update (2012), p. 2.
"Criminal Justice" International Centre for Transitional Justice.

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STATEMENT OF JURISDICTION

United Republic of ASIAN (hereinafter URA) and Republic of Andorra (hereinafter

Andorra) have submitted their difference concerning the Immunities and Criminal
proceedings to the International Court of Justice pursuant to the special agreement
(compromise). The courts jurisdiction is invoked under Article 36(1) read with Article 40(1)
of the statute of the International Court of Justice, 1950. The parties shall accept any
judgement of the court as final and binding upon them and shall execute it in entirety and in
the good faith.

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STATEMENT OF FACTS

URA is developed nation whereas Andorra is a developing nation and both are the founding
members of UN. Both the countries are parties to the statute of the International Court of
Justice and Vienna Convention on the law of treaties.
In last some decade Andorra has became leading oil exporter because of discovery of oil
reserves.
The eldest son of President Kian Ganzard, his possible successor, Mr TTK Ganzard was
elevated to the post of second Vice-President of Andorra in 2007. Beside his post of second
Vice President of the country, he was holding the countries portfolio of Defence and Strategic
Administration.
In 2009, the ACCOUNTABILITY INTERNATIONAL brought a complaint against several
world leaders including Mr. TTK Ganzard for using public funds to buy luxury properties
and goods in URA through various modes of Money Laundering and corruption. Some
properties of Mr. TTK Ganzard were found in URA including Palatial House at 18, rose
avenue Manhattan, URA, luxury mansion in one of the island city of URA and a gulfstream
jet.
In year 2010, the UNICEF Ganzard Global Prize for Social Work was approved when the
Executive Board of the UNICEF accepted the offer of $3 million from President of Andorra
to endow and award in his name. The timing and purpose of the award was challenged,
however, the award is being conferred continuously.

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URA and its prosecution agency prepared a case against Mr. TTK Ganzard on charges
including corruption, money-laundering and embezzlement of public funds. Mr. TTK
Ganzard denied the charges and wrong doing as well as questioned the jurisdiction of
domestic courts of URA. The case was popularly known as Kleptocracy III Gotten Money
Case.
In January 2011, President of Andorra appointed his son, Mr. TTK Ganzard as Andorras
Deputy Permanent Delegate to UNESCO.
URA and Andorra are Parties and signatory to the National Convention against Transnational
Organised Crimes. Both the countries have ratified UNCTOC. Both the counties are also
parties to the Vienna Convention on Diplomatic Relation and all its optional protocol.
In March 2011, before the trial of the case started in URA, Mr. TTK Ganzard sold his Palatial
House at Rose Avenue to the Govt. of Andorra for Rs. $300 Million. Andorra through its
communiqu on 18.03.2011 declared that said house is now owned and controlled by Govt.
of Andorra. It is no longer a private property and is being used for the purpose of diplomatic
mission of Republic of Andorra.
In April 2011, in the process of investigation of the case, the Police of URA seized the
Palatial House along with the other known properties.
Andorra through its diplomatic note strongly protested the action taken by the Police of URA
and termed the action as unauthorised and illegal in the eyes of International Law violating
the principal of sovereignty and provisions of VCDR. Andorra Challenged URAs
jurisdiction to try case against the second Vice President and termed it as unlawful
interference in the internal matters of Andorra and also said that the alleged wrongdoing
would fall under exclusive jurisdiction of Andorra. Andorra also said that Mr. TTK Ganzard

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is entitled to immunity as second Vice President of Andorra and as Deputy permanent

Delegate to UNESCO. Andorra also said that the search, seizure and occupation of the
building is in breach of VCDR, 1961.
In reply URA said that there are ample legal basis to validate search, seizure and occupation
of building. URA also claimed that building does not belong to diplomatic mission. Mr. TTK
Ganzard is accused of various crimes under domestic laws of URA as well as International
Law. Corruption has severe impact on human dignity and termed money laundering as
International crime. Andorras actions possess a threat of terrorism finance which poses a
threat to life and liberty of citizens of URA. The immunity claimed by Andorra is dwarfing
the principle of International legal framework.
In 2014, Mr. TTK Ganzard was appointed as Vice - President of Andorra by the Constitution.
In December 2014, another International NGO, ATTA generated a report titled Illegal Arms
& Ammunitions Island which states that one of the island of Andorra is the manufacturing
hub of illicit Firearms, their parts and components and ammunition and its trafficking to the
different parts of the world. The company is owned and controlled by Mr. TTK Ganzard.
This company also employs children and women who may be there as a result of human
trafficking.

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QUESTIONS PRESENTED

ISSUE 1: WHETHER THERE WAS ANY BREACH OF PRINCIPLE SOVEREIGNTY

AND NON-INTERFERENCE BY URA?
ISSUE 2: WHETHER THERE EXIST LEGAL BASIS WHICH VALIDATE SEARCH,
SEIZURE AND OCCUPATION OF THE PALATIAL HOUSE?
ISSUE 3: WHETHER MR. TTK GANZARD IS ENTITLED TO IMMUNITY?

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SUMMARY OF PLEADINGS

ISSUE 1 WHETHER THERE WAS ANY BREACH OF PRINCIPLE OF

SOVEREIGNTY AND NON-INTERFERENCE BY URA?
There was no breach of principle of Sovereignty and non-interference by URA. International
law imposes obligation on states to prosecute those who commit International crimes.
URA in its action in prosecuting Mr. TTK Ganzard and seizing, searching and occupying his
property has not violated any treaty obligation. Municipal courts can aptly subrogate for the
scant number of enforcement mechanism at International Law.
According to UNCTOC States shall take measures, to the greatest extent possible within their
domestic legal systems, such measures as may be necessary to enable confiscation of
proceeds of crime derived from offences covered by this Convention or property the value of
which corresponds to that of such proceeds.
By virtue of the principle of universal jurisdiction a national court may prosecute
individuals for any serious crime against International law. UN Member States can exercise
universal jurisdiction over one or more crimes under International law, either serious crimes
or ordinary crimes under national law. The prosecution of severe International crimes
including genocide, crimes against humanity, money laundering, trafficking and war crimes
is necessary to enforce International criminal law and deliver justice to victims.
ISSUE 2: WHETHER THERE EXISTS A LEGAL BASIS WHICH VALIDATES
SEARCH, SEIZURE AND OCCUPATION OF THE BUILDING?
Criminalizing the corrupt conduct alone does not adequately punish or deter organized
criminal groups. Some of the offenders will be able to enjoy their illegal gains even if they

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are arrested or convicted, so practical measure to keep offenders from profiting from their
crimes are necessary.
Each State in accordance with their applicable domestic laws and relevant treaties or other
agreements that may be in force between or among them, the States Parties shall provide each
other the broadest possible measure of assistance in the identification, tracing, freezing,
seizure and forfeiture of property or proceeds obtained, derived from or used in the
commission of offenses.
State should co-operate to curb International Crimes according to UNCTOC and UNCAC the
property that is a proceed of crime, either transformed or converted, would continue to be
proceed of crime and it is subject to seizure and confiscation.
ISSUE 3: WHETHER MR. TTK GANZARD IS ENTITLED TO IMMUNITY?
It is elementary law that diplomatic immunity is not immunity from legal liability, but
immunity from suit. This means that diplomatic agents are not above the law; on the
contrary, they are under an obligation to respect the laws and regulations of the receiving
State.
Mr. TTK Ganzard is seeking immunity for an unconstitutional post which is not justified and
immunity should not be granted.
The diplomatic immunities are not granted to Diplomats and their family members because
they abuse diplomatic privileges to escape prosecution for a variety of offences.
Immunity should only be conferred in respect of the Acts performed in the exercise of
functions which International law recognizes as function as a head of state, irrespective of the
terms of his domestic constitution. The acts for which Mr. TTK Ganzard has been charged
are not moral and under International law. They are crimes under International Law.
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PLEADINGS

ISSUE 1: WHETHER THERE WAS ANY BREACH OF PRINCIPLE OF

SOVEREIGNTY AND NON-INTERFERENCE BY URA?
URA has not interfered in the internal affairs of Andorra because it was acting within the
jurisdiction of its domestic laws, and International Treaty obligation. International law
imposes obligation on states to prosecute those who committed International crimes.1
International law should be interpreted in the light of domestic law. It is because certain types
of conduct are not acceptable on the party of anyone and that the contrary conclusion would
make a mockery of International law.2
The foreign state has jurisdiction, as a matter of International law, to prescribe rules for the
matter at hand and to subject the issues to adjudication in its courts. Also, where a case is
brought in domestic courts against a foreign state or foreign state official or agent, it must be
established that the state or its officials is not immune from jurisdiction of the forum.
1.1 URA has not breached its obligations under General International Law.
URA in its action in prosecuting Mr. TTK Ganzard and seizing, searching and occupying his
property has not violated any treaty obligation. Municipal courts can aptly subrogate for the
scant number of enforcement mechanism at International Law.3 The very notion of crimes of
International law postulates that they constitute an attack against the International community

Dapo Akande and Sangeeta Shah, European Journal of International Law, Oxford Journal, Volume 21, issue
4, pp. 815-852.
2
Trendtex Trading Corp. V. Central Bank of Nigeria (1977), QB 1333.
3
Generally.B.Conforti. International Law and the Role of Domestic Legal System (1993); R.A. Falk, The Role
of Diplomatic Courts in the International Legal Order(1964).

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as whole4 and therefore any state is entitled to punish them. A Canadian case establishes that
any state may exercise its jurisdiction over an individual found in its territory, irrespective of
the place where the alleged offence took place, when such offences can be categorised as
crime against humanity.5
1.1.1 URA has a Responsibility to protect global community.
Evolving concept of Responsibility to Protect, promotes the idea that the International
community has a responsibility to assist a State in fulfilling its primary responsibility of
protecting the lives and wellbeing of those within its territory. The norm suggests that States
are obligated to intervene diplomatically and/or militarily to prevent the commission of
crimes such as genocide, war crimes, crimes against humanity, and ethnic cleansing.6
1.2 URA has respected International Treaty obligations because it has Jurisdiction
under UNCTOC.
States shall take measures, to the greatest extent possible within their domestic legal systems,
such measures as may be necessary to enable confiscation of proceeds of crime derived from
offences covered by this Convention or property the value of which corresponds to that of
such proceeds.7 States shall adopt such measures as may be necessary to enable the
identification, tracing, freezing or seizure of any item which is proceed of crime for the
purpose of eventual confiscation8. Relying on the above article it is clear that the actions
taken by URA were authorized under UNCTOC. URA has acted within the obligations given
under UNCTOC by searching and seizing the proceed of crime.

Prosecutor v Erdemovic, Setencing judgement case no. IT-96-22-T, Trial Chamber I, 29 Nov, 1996 (108 ILR
180).
5
Regina v. Finta, Canada, High Court of Justice, 10 july 1989, 93 ILR 426-427.
6
Ibid.
7
Article 12(1), United Nations Convention Against Transnational Organized Crime
8
Article 12(2), United Nations Convention Against Transnational Organized Crime

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1.3 URA has jurisdiction under UNCAC

Each State Party shall take measures, in accordance with the fundamental principles of its
domestic law, to address consequences of corruption. In this context, States Parties may
consider corruption a relevant factor in legal proceedings to annul or rescind a contract,
withdraw a concession or other similar instrument or take any other remedial action.9
According to these provisions any state can deal with the corrupt crimes done by foreign
people under its domestic laws. URA has seized the proceed of crime which is obtained by
corrupt acts done by Mr. TTK Ganzard.
1.4 URA has acted under universal jurisdiction of general International Law.
By virtue of the principle of universal jurisdiction a National court may prosecute
individuals for any serious crime against International law such as crimes against
humanity, war crimes, genocide and torture based on the principle that such crimes harm
the International community or International order itself, which individual States may act to
protect. Generally, universal jurisdiction is invoked when other, traditional bases of criminal
jurisdiction do not exist, for example: the defendant is not a National of the State, the
defendant did not committed any crime in that States territory or against its nationals, or the
States own national interests are not adversely affected.
Universal Jurisdiction existed well before any convention or treaties over crimes committed
in the violation of jus cogens and which gravity and scale can be regarded as an attack on the
International legal order.10
Amnesty International reports that, in total, 163 of the 193 UN Member States can exercise
universal jurisdiction over one or more crimes under International law, either as such crimes
9

Article 34, UNCAC

Ex Parte Pinochet (HL 2) at 177d.

10

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or as ordinary crimes under national law.11 As of September 1, 2012, a total of 147 States
have provided universal jurisdiction over one or more crimes under International law.12 No
fewer than 166 States have defined at least one of the four crimes upon which universal
jurisdiction can be exercised war crimes, crimes against humanity, genocide, and torture
as crimes in their national law.13
New Zealands Law defines war crimes, as crimes against humanity and genocide in
accordance with the Geneva Conventions and the Rome Statute14, and also provides that
individuals may be prosecuted in New Zealand for these crimes regardless of (i) the
nationality or citizenship of the person accused; (ii) whether any act forming part of the
offence occurred in New Zealand; or (iii) whether the person accused was in New Zealand at
the time that the act constituting the offence occurred or at the time a decision was made to
charge the person with an offense.15 Canada is another example of a State that provides
domestic exercise of universal jurisdiction.16
1.5 URA can exercise universal jurisdiction under treaty obligation as well.
There are several countries that have such laws under which they can interfere in the property
of other state which is situated in their state. Some of them are Russia, USA, etc. President
Vladimir Putin signed the Law on Jurisdictional Immunity of a Foreign State and a Foreign
States Property in the Russian Federation17, according to which Russia can seize the property

Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World 2012
Update (2012), p. 2.
12
id. p. 12.
13
Ibid.
14
Section 8, International Crimes and International Criminal Court Act of 2000.
15
Section 8(1)(c), International Crimes and International Criminal Court Act of 2000.
16
Crimes Against Humanity and War Crimes Act of 2000.
17
Federal Law No. 297-FZ, art. 1
11

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of any other state which is proceed of crime present in its territory. USA also has laws for the
forfeiture of the foreign property.18

Corruption and money laundering is an International crime and it allows state to prosecute
criminals.19 Every State remains free to adopt the principles which it regards, best and most
suitable.20

In Lotus Case the arrest and conviction of the French first officer in Turkey raised the
question of the jurisdiction of the Turkish authorities, which was strongly contested by
France. The Court declared that there is no general rule of International law which prohibits a
State from exercising jurisdiction in its own territory, in respect of any case which relates to
acts which have taken place abroad. The French Govt. had argued in the Lotus case that
under International law the fact that the victim was a national of the forum would be
insufficient to justify its exercise of jurisdiction over a foreigner for his extraterritorial acts. 21
The Court stated that it was unnecessary to consider this contention, since it could only be
used, if International law forbade Turkey to take into consideration the fact that the offence
produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish
territory, so the application of Turkish criminal law cannot be challenged22.
Mr. TTK Ganzards Crime of Corruption was committed in Andorra, but UNCTOC
recognises it as a crime affected the global community.23
Mr. TTK Ganzard has also been involved with human trafficking and arms trafficking.24
Investigations and trials of leaders who have committed crimes and caused mass political or
18

18 U.S. Code 981

19

Preamble, United Nation Convention on Transnational Organised Crimes.

1 Oppenheim, International Law-A Treatise 21a (7th ed. Lauterpacht 1948-1952).
21
S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)
22
see Brewster, Antitrust and American Business Abroad 286 (1958). See also Reese, Changing Concepts of
Jurisdiction (unpublished summary of address given before the American Foreign Law Association 1963).
23
Preamble, United Nation Convention on Transnational Organised Crimes.
20

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military atrocities is a key demand of victims of human rights abuses. Prosecution of such
criminals can play a key role in restoring dignity to victims, and restoring trusting
relationships in society.25 Mr. TTK Ganzard is also charged under some serious criminal
offences which is crime against humanity as he has employed Women and children in the
arms and ammunition factory26. Trafficking of those arms and ammunition is considered as
finance of terrorism. He has also been alleged for Money Laundering and Corruption by AI. 27

The Domestic nationality of the plaintiff is sufficient to exercise jurisdiction even though the
defendant may be an alien, neither domiciled, nor resident, nor present in State
boundaries.28And in several countries, such as Austria, Germany, Japan, and Sweden, and in
many Swiss cantons, an action in personam can be brought against a person who merely has
property there, even if that property has practically no value.' 29
The Universality Principle30, in its broad sense, implies that a State can claim jurisdiction
over certain crimes committed by any person anywhere in the world, without any required
connection to territory, nationality or special State interest. 31 Before the Second World War,
such universal jurisdiction has been considered as contrary to International Law by the
Common Law countries. After the Second World War, universal jurisdiction has been
universally recognized over certain acts considered as International crimes. International
crimes are those crimes committed against the International community as a whole or in
violation of International Law and punishable under it, such as war crimes, crimes against

24

Compromis, 31
"Criminal Justice" International Center for Transitional Justice.
26
Compromis, 31
27
Compromis, 11
28
Article 14 of the French Civil Code
29
Procedural Codes of Austria, 99; Germany,' 23; Japan, 8; Sweden, ch. 10, 3. For the pertinent sections
of the various Swiss cantonal codes, see 1 Guldener, Das Schweizerisches Zivilprozessrecht 76 (1947). See
generally, Wolff 72
30
Shaw pp. 592-7; Malanczuk, pp. 112-3; and Bledsoe and Boczek, p. 106.
31
Malanczuk, p. 113.
25

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peace and crimes against humanity.32Today under the universality principle, each State and
every State has jurisdiction over any of the International crimes committed by anyone
anywhere.
1.6 Mr. TTK Ganzard has committed International Crime.
Mr. TTK Ganzard has been charged for committing several International crimes.33
International law imposes obligation on states to prosecute those who committed
International crimes.34 The prosecution of severe International crimes including genocide,
crimes against humanity, money laundering, trafficking, and war crimes is necessary to
enforce International Criminal Law and deliver justice to victims.35 International crimes may
not be considered as sovereign act committed by states.36
1.6.1 Mr. TTK Ganzard has allegedly committed Money Laundering.
The laundering of money derived from serious crimes continues to be a global problem that
threatens the security and stability of financial institutions and systems, undermines economic
prosperity and weakens governance systems.37 Money Laundering consists of disguise of the
illegal origins of proceeds of crime. The UNCAC recognizes the link specifically between
corrupt practices and money laundering and builds on earlier and parallel national, regional
and International initiatives in that regard. This money laundering which is done by Mr. TTK
Ganzard is resulting in the deplorable condition of the citizens of Andorra,38 therefore, it is

32

Chapter 17 infra
Compromis
34
Dapo Akande and Sangeeta Shah, European journal of International Law, Oxford Journal, Vol. 21, issue 4,
pp. 815-852.
35
Ibid.
36
Akande, International law immunities and the International criminal court, 98 AJIL (2004) 407, 409-415.
37
United Nations Political declaration an action plan against money laundering; model legislation on
laundering.
38
Compromis 8
33

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crime against humanity and URA has universal jurisdiction to try cases in which alleged
crimes are crimes against humanity.39
1.6.2 Mr. TTK Ganzard has allegedly committed Corruption.
The money which was gained by the oil export was flowing directly into the private bank
accounts of the Ganzards family and their affiliates.40 Most of the population of Andorra is
mired in desperate poverty, with more than 60 percent are living on less than $1 per day.41
Andorra is the worst governed country of all surveyed.42
Corruption is an enormous obstacle to the realization of all Human Rights Civil, Political,
Economic, Social and Cultural, as well as the right to development. Corruption violates the
core human rights principles of transparency, accountability, non-discrimination and
meaningful participation in every aspect of life of the community.43

1.6.3 Mr. TTK Ganzard has allegedly committed Human Trafficking.

Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of
the giving or receiving of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation.44 Mr. TTK Ganzard has abused
his diplomatic position to traffic children and women to work in their factories.45

39

Chapter 17, infra

Compromis, 5
41
Compromis 8
42
Ibid.
43
Navi Pillay, Opening Statement by Navi Pillay, High Commissioner for Human Rights: Panel on The
Negative Impact of Corruption on Human Rights, Off. of the High Commissioner for Hum. Rts. (Mar. 13,
2013)
44
Article 3(a), Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention against Transnational Organized Crime.
45
Compromis, 31.

40

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Each State Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences the conduct set forth in this Protocol, when committed
intentionally.46 URA here is also adopting measures to combat such International crimes
which the protocol is talking about.

46

Article 5, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime

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ISSUE 2: WHETHER THERE EXISTS A LEGAL BASIS WHICH VALIDATES

SEARCH SEIZURE AND OCCUPATION OF THE BUILDING?
Criminalizing the corrupt conduct alone does not adequately punish or deter organized
criminal groups. Some of the offenders will be able to enjoy their illegal gains even if they
are arrested or convicted, so practical measure to keep offenders from profiting from their
crimes are necessary.
2.1 Search, seizure and occupation is validated under Customary International Law.
In United States v. Verdugo-Urquidez,47, the United States Supreme Court held that the
fourth amendment48 does not protect individuals against the search and seizure by a United
States agent of property that is both owned by a non-resident alien and located in a foreign
country.
Each State in accordance with their applicable domestic laws and relevant treaties or
other agreements that may be in force between or among them, the States Parties shall
provide each other the broadest possible measure of assistance in the identification,
tracing, freezing, seizure and forfeiture of property or proceeds obtained, derived from
or used in the commission of offenses.49
The aim of these instruments is to allow the freezing or confiscation of criminal property in
country where the alleged criminal is being prosecuted in other country.50 In a EU country the
framework decisions allow the judicial authority to send an order or freeze or confiscate
47

110 S. Ct. 1056 (1990).

The fourth amendment to the Constitution of the United States proclaims that, "the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the persons or things to be seized." U.S. CONST. amend.
IV.
49
Article XV, Inter-American Convention Against corruption.
50
European Union, Framework decision on the execution in the EU of orders freezing property or evidence,
2003 and European Union, framework decision on the application of the principle of mutual recognition for the
confiscation order, 2006
48

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property directly to the judicial authority in another EU country where it will be recognised
and executed without any further formality.51
2.2 It is not a premise of mission under VCDR.
2.2.1 VCDR was not designed for individual diplomatic benefits.
VCDR was not designed for individuals diplomatic benefits.52 The diplomatic agents are
subject to local jurisdiction for certain private acts and cases relating to property situated in
the receiving state53 and actions relating to professional activity outside the official function
of the diplomatic agent.54
2.2.2 URA never consented to the Premise of Mission.
The "premises of the mission" are the buildings or parts of buildings and the land ancillary
thereto, irrespective of ownership, used for the purposes of the mission including the
residence of the head of the mission.55
The property that belongs to Mr. TTK Ganzard is not a premise of mission under the laws of
VCDR. It was declared by Andorra through a official communiqu56 that the said house at
Rose Avenue is owned and controlled by govt. of Andorra and it no longer a private property
and its being used for the purpose of diplomatic mission of Andorra. But this statement is
contrary to VCDR. The sending State may not, without the prior express consent of the
receiving State, establish offices forming part of the mission in localities other than those in
which the mission itself is established.57 According to this Article a premise of mission
could only be built only with the prior consent of sending state, but no such consent was
51

Ibid.
Amending the Vienna Convention at 204
53
31(1)(a), VCDR
54
31(1)(c), VCDR
55
Article 1(i), Vienna Convention On Diplomatic Relations
56
Compromis 25
57
Article 12, Vienna Convention on Diplomatic Rights.
52

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taken by govt. of Andorra. Therefore, this property cannot be declared as premise of

diplomatic mission. It is a discretionary power of the receiving state to allow establishment of
the mission. Without prior express consent of a receiving state a sending state may not
establish offices in locations other than those the mission established. Therefore, the building
in question cannot be Diplomatic Premise.
2.2.3 The Building was sold after complaint was filed by Accountability International.
The private property i.e. Palatial House at 18 rose avenue belonged to Mr. TTK Ganzard and
its selling was not valid because it was sold after the charge was framed against MR. TTK
Ganzard and his property. The case was filed in the year 2009 by AI58 and the trial started in
March, 2011 before the competent court of URA59 and the property that was alleged to be a
proceed of crime was also sold in March 201160 i.e. in the same month in which the trial
started. So selling a property which is under question could be termed as illegal sale. So,
when it is not a legal sale how can they call it a property of Premise of Mission?
2.2.4 The transfer of Building to Govt. of Andorra was against the Doctrine of lis
pendes.
The doctrine of lis pendens, effectively provides that during the pendency of a suit in which
any right to immovable property is in question, the property cannot be transferred by any
party to the suit so as to affect the rights of other parties. Relying on the doctrine of lis
pendes, the property which was sold to Govt. of Andorra for Diplomatic mission of Andorra
was an invalid sale and therefore the property do not belong to Govt. of Andorra.

58

Compromis 11
Compromis, 25
60
Ibid. 25

59

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2.2.5 Even if the building was converted into Diplomatic Mission, URA has jurisdiction
under UNCTOC, UNCAC and VCDR
If proceeds of crime have been transformed or converted, in part or in full, into other
property, such property shall be liable to the measures referred to in this article instead of the
proceeds.61 Similar provisions could be traced in UNCAC as well.62
As given in the above Article, the property that is proceed of crime, either transformed or
converted, would continue to be proceed of crime and subject to seizure and confiscation. In
the given case, Palatial House was converted into a Govt. of Andorra owned building which
was said to be used for Diplomatic Mission of Andorra. Palatial house was a proceed of
crime as alleged by AI and it was converted into a property used for Diplomatic Mission of
Andorra.63
Diplomatic mission should not be used in any manner incompatible with the functions of the
mission64 or for activities which are in controvertibly outside of a reasonable diplomatic
function. Even if we consider the said premise as the premise of mission then also Andorra
has violated its obligations under VCDR and UNCTOC by using the embassy premises to
conceal a proceed of crime.
2.3 Validity of search, seizure and occupation under UNCTOC and UNCAC
It is not expressly given in Compromis, whether both the States are parties to UNCAC or not,
but we can consider both the States as parties to the UNCAC, because at present all the

61

United Nation Convention Against Transnational Organised Crime, Article12(3)

United Nations Convention Against Corruption, Article 31(4)
63
United Nations Convention Against Corruption, Article 31(3).
64
Article 41(3), VCDR
62

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founding members of UN65 are parties to the UNCAC66 and URA and Andorra are also
founding members of UN.67
Proceeds of crime shall mean any property derived from or obtained, directly or indirectly,
through the commission of an offence.68The Property which belonged to Mr. TTK Ganzard
was a result of proceed of crime and it was alleged by AI.69
Freezing or seizure shall mean temporarily prohibiting the transfer, conversion,
disposition or movement of property or temporarily assuming custody or control of property
on the basis of an order issued by a court or other competent authority.70
Each State Party shall take, to the greatest extent possible within its domestic legal
system, such measures as may be necessary to enable confiscation of Proceeds of
crime derived from offences established in accordance with this Convention or
property the value of which corresponds to that of such proceeds.71
URA in its actions, in searching and seizing the property that belonged to Mr. TTK Ganzard,
is right because as given in the above Article of UNCAC, the state may take necessary
actions according to the domestic laws to search, seize and ultimately confiscate the property
that is a proceed of crime. We can consider the properties belonged to Mr. TTK Ganzard as
proceed of crime relying on the report of AI according to which Mr. TTK has allegedly used
public funds to buy luxury properties and goods in URA through various modes of money
laundering and corruption.72

65

http://www.un.org/depts/dhl/unms/founders.shtml
United Nations Convent`ion Against Corruption Signature and Ratification status as of 21 st September, 2016
67
Compromis . 6
68
United Nations Conventions Against Corruption, Article 2(e).
69
Compromis . 11
70
United Nations Convention Against Corruption, Article 2(f).
71
United Nations Convention Against Corruption, Article 31(1)(a).
72
Compromis, 11
66

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Each State Party shall take such measures as may be necessary to enable the identification,
tracing, freezing or seizure of any item which is a proceed of crime. 73 Relying on the given
article URA can take measure to enable freezing or seizure and URA did it through the Police
who seized the property and other belongings of proceeds of crime owned and controlled by
Mr. TTK Ganzard.74
Proceeds of crime shall mean any property derived from or obtained, directly or indirectly,
through the commission of an offence.75
Freezing or seizure shall mean temporarily prohibiting the transfer, conversion,
disposition or movement of property or temporarily assuming custody or control of property
on the basis of an order issued by a court or other competent authority.76
States Parties shall adopt, to the greatest extent possible within their domestic legal systems,
such measures as may be necessary to enable confiscation of proceeds of crime derived from
offences covered by this Convention or property the value of which corresponds to that of
such proceeds.77
It is clear from the above Articles that a state can seize a property which is a proceed of crime
under its domestic laws and therefore URA has jurisdiction to seize the properties that belong
to Mr. TTK Ganzard.

73

Article 31(2), United Nation Convention Against Corruption

Compromis, 26
75
United Nation Convention Against Transnational Organised Crime, Article 2(e)
76
United Nation Convention Against Transnational Organised Crime, Article 2(f)
77
United Nation Convention Against Transnational Organised Crime, Article 12(1)(a)

74

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ISSUE 3: WHETHER MR. TTK GANZARD IS ENTITLED TO IMMUNITY.

URA recognises that Mr. TTK Ganzard is Diplomatic Agent. However, Mr. TTK Ganzard is
alleged of several offences committed by him as a diplomatic agent. The crimes are so
serious that he should not be granted immunity.
In Empson v. Smith it was held that, it is elementary law that diplomatic immunity is not
immunity from legal liability, but immunity from suit.78 This means that diplomatic agents
are not above the law; on the contrary, they are under an obligation to respect the laws and
regulations of the receiving State.79
The sending state can make an express waiver of the diplomatic immunity. 80 However a
diplomats law breaking activity can constitute a constructive implied waiver of diplomatic
immunity.81
3.1 No immunity as a second Vice-President of Andorra
The immunity which Andorra has asked in the communiqu82 from URA is not justified on
the grounds that the post of Second Vice-President is not recognised by the Constitution of
Andorra.83 Therefore, seeking immunity for an unconstitutional post is not justified and
immunity should not be granted. Even Govt. of Andorra itself do not recognise this post
because Mr. TTK Ganzard was appointed as Vice-President of it having portfolio of Defence
and Strategic Administration.84

78

See Empson v. Smith, Queens Bench Division. 1 Q.B. 426 (1996).

79

Article 41, paragraph 1, Vienna Convention on Diplomatic Rights

Article 32(2), Fatemi v United Sates, 192A.2D 525, 528 (DC 1963)
81
Goldberg 2-3
82
Compromis 27
83
Compromis 10
84
Compromis 30
80

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3.2 No immunity as a Diplomat.

Diplomats and their family members abuse diplomatic privileges to escape prosecution for a
variety of offences.85
A diplomatic agent who is a national of or permanently resident in that State shall enjoy only
immunity from jurisdiction, and inviolability, in respect of official acts performed in the
exercise of his functions except where additional privileges and immunities have been
specifically granted by the host State,.86 The given article clearly differentiates between an
act carried out as part of his official duties and those done as a personal act. Any actions done
personally and outside the ambit of official consular duties shall not be covered by
diplomatic immunity.87 The acts which have been committed by Mr. TTK Ganzard are not
authorized acts committed by a state official or a diplomat. These acts are menace to the basic
human dignity.88
URA and Andorra are parties to the VCDR and the state that are parties to the VCDR are
bound to follow the Charter of the United Nations concerning the sovereign equality of
States, the maintenance of International peace and security, and the promotion of friendly
relations among nations.89 As a diplomatic agent and representative of his state Mr. TTK
Ganzard has failed to maintain International peace and security by illicitly manufacturing fire
arms and their parts and then trafficking it to different parts of the world90 and he has also

The shootout at the Libian self style peoples bureau: a case of state supported International terrorism 30S.D.L
rev.1,1-3, 1984
86
Article 38, Vienna convention on diplomatic relations.
87
Ibid.
88
Compromis 28
89
Preamble, Vienna Convention on Diplomatic Relation, 1961.
90
Compromis, 31.
85

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failed to maintain friendly relations with other nations because he is also involved in
trafficking of children and women.91
Also Mr. TTK Ganzard should not get diplomatic immunity because he abused his diplomatic
post for trafficking of children and women and made them work in their arms and
ammunitions factory. Hillary Clinton (the secretary of United States) made precisely the
point at the 2011 meeting of the Presidents Interagency Task Force to Monitor and Combat
Trafficking in Persons that whether theyre diplomats or national emissaries of whatever
kind, we all must be accountable for the treatment of the people that we employ.92
3.3 Immunity is a dwarfing principle of International Law.
Diplomatic Immunity originated to protect relations between the states.93 The assertion that
the diplomat cannot function efficiently without immunity implies that the diplomat must
break the laws of the receiving state in order to conduct International relations94.
In judgement of Yerodia case immunity was granted to the serving foreign minister of
DRC95, but the judgment was criticised on the ground that it unjustifiably extended head of
state immunity to what may be a wide range of ministers, without sufficient argument or
reference to authority.
Immunity should only be conferred in respect of the acts performed in the exercise of
functions which International law recognizes as function as a head of state, irrespective of the
terms of his domestic constitution.96 The acts for which Mr. TTK Ganzard has been charged

91

Ibid.
Remarks of Secretary of State Hillary Clinton, THE PRESIDENTS INTERAGENCY TASK FORCE TO
MONITOR AND COMBAT TRAFFICKING IN PERSONS (Feb. 1, 2011), available at
http://www.state.gov/secretary/rm/2011/ 02/155831.htm
93
New Regime of Diplomatic Immunity
94
Ibid
95
Arrest Warrant case of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgement, 14 th February
2002; ICJ Rep 2002 (hereinafter Yerodia) at P 75.
96
Section 20, SIA
92

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are not moral under International law and doing such acts and asking immunity for that
would destroy the basic idea of giving immunity.

3.4 No Diplomatic Immunity is when immunity is abused by Diplomats.

Diplomatic immunity as a concept originated out of customary principles of International
law. Its origin can be traced for the purpose of protection of representatives of foreign Govt.s
in a country from possible retaliation in case of International conflicts and to promote
International relations. After all, the whole purpose of diplomatic immunity is to keep foreign
diplomats out of U.S. courts and to free their Govt.s from the need to go to court to defend
them.97 Diplomats and their family members abuse diplomatic privileges to escape
prosecution for a variety of offences.98
Several cases have come up recently which support the claim that the diplomatic immunity is
being abused by the diplomats. One such incident occurred in Paris in 1978 in which
policeman who was escorting a Palestinian from their embassy was killed by a gunshot,
which was fired from the Iraqi Embassy. A huge controversy raged over this gunshot, but the
culprits had to be let away. The French President's spokesperson publicly acknowledged the
gravity of the crime but stated that the suspects were covered by diplomatic immunity. The
only thing that the French Govt. did was to make a request to the Iraqi Govt. to put the three
suspects on trial.99 In Sri Lanka Burma Pyre incident the Burmese Ambassador to Sri Lanka
in 1979, got infuriated by seeing his wife getting out of the car of a night club band member.
The next day, neighbours around the embassy noticed the ambassador building a pyre on the

97

David A. Jones, Jr. and Jonathan T. Fried, Diplomatic Immunity: Recent Developments in Law and Practice,
85 Am. Soc. In. L 17 (1991).
98
The shootout at the Libian self style peoples bureau: a case of state supported International terrorism 30S.D.L
rev.1,1-3, 1984
99
Randy G Taylor, Shootout at the Iraqi Embassy in Paris

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back lawn of the embassy. The police were prevented from entering the embassy as the
diplomat claimed that this was a part of Burmese territory. He later placed his wifes corpse
on the pyre and set it alight.100

100

inal Approaches: A Memoir by Gerald Hensley, (2006, Auckland University Press, NZ)

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PRAYER

The United Republic of ASIAN respectfully request Honourable Court to adjudge and
declare that:
1. URA should have Universal jurisdiction in the alleged offences against Mr. TTK
Ganzard and can prosecute him for offences committed under UNCTOC.
2. The search, seizure and occupation of the Palatial House should be justified under
general and Treaty International Law and that it is not Premise of a Diplomatic
Mission and that URA did not have any obligation to protect it and keep it Inviolable.
3. Mr. TTK Ganzard should not be entitled to diplomatic immunity for the International
Crimes committed by him, and that Corruption is an International Crime which
effects the global community.
OR/AND;
Pass any order, which the court may deem fit in light of justice, equity and good conscience.

All which is humbly prayed.

Respectfully submitted
X____________________
Agents on behalf of the Appellant

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