(1) self-determination/secession (25 points)
Does a group within a state have a right to become a new state if the majority of its inhabitants desire that? Why or why not? Are there exceptions? In your opinion, is this a good result? Why or why not? What purposes does this serve?
Draw upon the materials at pp. 105-123, DRW; particularly, discuss the Aaland Islands case and the work of the “Bandinter” Commission (a/k/a the Conference on Yugoslavia Arbitration).
(2) human rights/torture & terrorism/use of force (25 points)
Drawing upon the readings on torture (DRW pp. 342-366) – including case law as well as the International Covenant on Civil and Political Rights (“ICCPR”), the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (“CAT”) and/or the Geneva Conventions (but only to the extent contained in your textbook):
(a) Is the “necessity defense” a permissible defense to torture? Is “official position” (that is, a person’s official position with the state) an excuse for conducting torture? Should either be?
(b) Is the following sound legal advice and/or consistent with international standards?
As to torture, “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body function will likely result.”
DRW, p. 359 (quoting 7/1/02 memorandum from Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzalez).
(c) Drawing upon the reading (DRW pp. 820-836), what are the legal arguments that support the US-led coalition’s use of force in Afghanistan in response to the 9/11 attacks?
(d) What are five legal questions that take issue with the legality of the use of military force in response to the 9/11 attacks? Please explain the issues raised (don’t just list the 5 questions), including whether the U.S. was legally entitled to target the Taliban and the theories for and against that.
(3) International Criminal Court (25 points)
(a) (i) What are the crimes that the International Criminal Court (“ICC”) may currently adjudicate?
(ii) May the ICC currently try the crime of aggression? Why or why not?
(iii) Are there limitations on what crimes may be prosecuted before the ICC in terms of where the crimes occur or the nationality of the person to be prosecuted?
(iv) Is there any additional way that the ICC may exercise jurisdiction (i.e., is there an additional body that may make referrals, but also thereby creates jurisdiction)?
(v) Is there any start date as to the crimes the ICC may prosecute? If yes, what is that date(s)?
[The above answers may be brief, although please cite to the relevant Rome Statute provisions.]Please answer part (a) using the Rome Statute provisions in the textbook at DRW pp. 529-531; you may also rely on the full Rome Statute, at http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
(b) (i)-(iv) Using any of the readings on the ICC (DRW, pp. 528-542), please explain the Bush II Administration’s approach to the ICC, including the four measures taken purportedly to limit the exposure of US nationals to the ICC.
(v) Do you agree with the Bush Administration’s approach, or do you prefer the Obama Administration’s approach of constructive engagement on a case-by-case basis? Why?
(4) humanitarian intervention/R2P (25 points)
Please explain:
(a) the arguments why humanitarian intervention in Kosovo was legitimate under international law;
(b) the counter-arguments why humanitarian intervention in Kosovo was illegitimate under international law;
(c) whether, in your opinion, humanitarian intervention should be permissible as a matter of international law, and whether you would favor an implicit doctrine to that effect or whether it should be formalized.
(d) what is the “responsibility to protect”? Are there any basic criteria that have been suggested regarding when it would be legitimate to use? What are they?
Please draw on the reading in DRW pp. 771-793, including arguments presented in Yugoslavia v. Belgium.
Important Instructions:
(1) I am not looking for any particular citation form, but let me know what you rely on (e.g., DRW at p. 20).
(2) Other than the Rome Statute (which you may look at in full using the link provided), please do not consult any other internet source, or source other than your textbook. This is an OPEN book exam as to the textbook only.
(3) Please answer each part of each question.
(4) When I solicit your opinion, please provide a reasoned response. I am not looking for you to provide an answer with which you think I will agree.
(5) You may face time pressure in completing this exam. It is suggested that you apportion your time accordingly.
(6) If you are directly quoting the textbook, USE QUOTATION MARKS.
