Charles Rousseau Moot Court Contest - 2004
Between 1-9th May, 2004 the Charles Rousseau Moot Court
Contest of simulated process in international law took place in
Geneva, Switzerland. 27 teams from all over the world (from the
American continent, through Europe to Africa) arrived at this annual
French speaking competition, among them our team (Eszter Gilányi, Nóra
Klebercz, Anikó Raisz and László Varju, coaches: Csaba Pákozdy and
Prof. Péter Kovács) from the University of Miskolc, Hungary. This year
the subject was the conflict in Iraq.
The contest simulated
a process of advisory opinion before the International Court of
Justice (ICJ). The teams had the task to argue on behalf of the United
States of America and on behalf of Malaysia (representing the Islamic
Conference) about the question of the General Assembly of the United
Nations put in Resolution 58/1 of 18th September 2003.
The questions were:
1. Was the use of
force by the United States of America and the other powers present in
Iraq without authorisation by the Security Council in conformance with
the international law?
2. What are the legal
consequences of the permanent presence of the United States of America
and the other powers in Iraq?
preliminary objections, the most significant questions are the
judicial character of the question.
The party arguing on behalf of the United States of America queries
the judicial character of the question of the General Assembly, laying
emphasis on the political aspects. The party on behalf of Malaysia may
refer to the advisory opinion of the International Court of Justice of
8th July 1996 upon the legality of the use of nuclear
weapons, which says that political aspects are the necessary
concomitants of questions occurring in the field of international law.
This does not mean that the obligations of the states are not mainly
of judicial nature.
problem ‘ratione temporis’.
The United States argues that it is too early to deal with this
question before the ICJ since the recently by the US government
ordered official report concerning the reasons that led to the
situation in the US is not yet available. Malaysia may refuse this
argument due to the available British report and argue that this
objection would only cause a needless postponement in the proceeding.
competence of the ICJ.
Some of the teams query the right of the General Assembly (GA) to put
this question. The core of their argumentation is the principle of the
pre-emption of the Security Council (SC) that is to say the Security
Council has already discussed the question in Iraq and so the General
Assembly would not have the competence to put this question before the
ICJ. The party on behalf of Malaysia can argue that the ICJ has not
yet made a statement on this problem, but in the ‘Certain expenses of
the United Nations’ it declared that although the SC has a primary
role in the questions of international peace and security, this role
is not exclusive.
In connection with
the first question the main points of the argumentation of the
parties were the following:
principle of the prohibition of the use of force.
Malaysia can argue that at present the prohibition of the use of force
is an internationally accepted principle. One can refer to the
development of this principle through the last century – among them
the Conventions of the Hague and the Briand-Kellogg Pact – confirming
that the civilised nations reject the use of force as declared in §1
and 2(4) of the Charter of the United Nations. The party arguing on
behalf of the United States would like to persuade the Court that the
action of the allied powers of 20th March 2003 aimed at
implementing exactly this principle since Iraq had ignored its
international obligations perpetually as confirmed through a decade by
the SC. Besides analyzing the development, Malaysia may refer to the
interpretation of the Charter through numerous resolutions of the GA
and through the ICJ itself in cases like Nicaragua, 1986 or Corfu,
Resolution 3314 (XXIX).
The most powerful argument of Malaysia is the definition of aggression
in Resolution 3314 of 1974. The definition given in the annex covers
the acts committed by the USA and his allies in Iraq since the
beginning of the military activities – argues the Malaysian party. The
sovereignty, territorial integrity and political independence of Iraq
have been attacked and injured – without doubt. The United States
draws attention to the problem of the acceptability of the resolution
and refers to its non-obligatory validity. Malaysia lays stress on the
customary law character of the definition, accepted by the ICJ also in
the case of Nicaragua.
Resolution 1441 of 2002.
The United States sees an authorisation in Resolution 1441 (2002) of
the Security Council for the use of force in Iraq. The Malaysian party
denies that direct authorisation could be traced back to the text of
Right for self-defence, danger of terrorism.
The United States of America refers to the right of self-defence,
declared in §51 of the Charter of the United Nations, saying that Iraq
embodied danger for the region and the world, in particular for the
USA among others in the form of supporting terrorists. Malaysia
refuses the applicability of this paragraph in the situation of Iraq,
emphasizing that the action of the United States was neither
necessary, nor immediate, nor proportional and the means chosen were
not the mildest – and refers to the case Steamer Caroline of 1837; and
rejects the arguments of the United States concerning the danger of
terrorism, which has admittedly changed a lot in the past decades.
Weapons of mass destruction.
The most significant point in the argumentation of Malaysia is that no
weapons of mass destruction were found before, during or after the
military actions of the allied powers and so there exists no justified
reason for the occupation.
Liberation of the Iraqi people.
The United States of America reassures the Court that the real aim of
the action was the liberation of the people of Iraq from the
dictatorial regime of Saddam Hussein. The party arguing on behalf of
Malaysia mentioned that this argument occurred only after it had
become clear that there were no weapons of mass destruction in Iraq.
The USA has never spoken out against all the dictators of the world
and arbitrarily selecting among them undermines the legality of this
second question the following main points have to be mentioned:
Resolution 1483 (2003).
Resolution 1483 gives the allies permission to stay legally on Iraqi
territory and control the humanitarian aspects during the process of
building a new, democratic regime in Iraq. The Resolution hands over
the leadership over the troops joining the actions of maintaining the
peace after the official end of the war in the hands of the Americans
and the British.
The troops attempting to maintain peace in the Iraqi region have the
international legal obligation of keeping the Conventions of the Hague
and Geneva. The positions of the teams arguing on behalf of the United
States have not become more comfortable in the contest as further
proofs came to light also during the week of the contest relating to
the terrible tortures that took place in Iraq.
After three teams of
the Universities of Paris (II, X and XI) and the McGill University of
Montréal came into the semi-finals, the team of Paris XI won the
competition in 2004. For all the other teams – including us – it was a
fabulous experience to take part in such a contest with a
francophone-international milieu. But maybe we were all in a
convenient situation for not having the responsibility to give a real
advisory opinion on the question of the situation of Iraq.