International criminal law

As shown on the above map, Isla Verde is a large (and imaginary) island several hundred nautical miles
off the coast of an (equally imaginary) continental landmass. The latter constitutes the territory of
three sovereign states, the two largest being Amarillo and Tierra Gris. Sandwiched between these is
the smaller state of Rio Rojo. The continent, as well as Isla Verde, were colonised by European powers
from the sixteenth century onwards, although the current demographic composition of Isla Verde is
distinct. Whereas the inhabitants of the three continental countries largely descend from their
European colonisers, the population of Isla Verde is mostly indigenous to the island.
In the early 19th century the three continental countries gained independence from their colonising
European powers. At that stage the European minority living on Isla Verde, who had disenfranchised
the island’s indigenous majority, voted to become part of the newly independent state of Amarillo.
This arrangement was never popular with Verde’s indigenous population and in 1993 the Verde
Liberation Front (VLF) declared the Verde Republic an independent state, claiming the island as its
territory and Puerto Esmeralda as its capital. There followed a lengthy but ultimately successful
guerrilla campaign fought by the VLF against Amarillo’s army. In early 2003 the last troops on Isla
Verde loyal to Amarillo were taken captive by VLF forces and from that year onwards most of the
international community began to recognise Verde as an independent state. In 2000, even before its
struggle for independence had ended, the VLF unilaterally declared itself bound by the 1949 Geneva
Conventions. Verde then gained membership of the United Nations in 2004 and in 2005 it acceded to
the Vienna Convention on the Law of Treaties (VCLT), the Vienna Convention on Diplomatic Relations
(VCDR), the Chicago Convention, the Tokyo Convention and the Chemical Weapons Convention.

Verde’s three continental neighbours had ratified the Chicago Convention in 1947, acceded to the 1949 Geneva Conventions during the 1950s, the VCDR during the 1960s, the Tokyo Convention in the 1970s, the VCLT during the 1980s, and had ratified the Chemical Weapons Convention in 1993. They have been members of the UN since its inception. Despite the widespread recognition of the Verde Republic, Amarillo still refuses to acknowledge its existence. Officially, Amarillo defines the island as an integral part of its sovereign territory. Even so, an uneasy peace has prevailed since 1994, with Amarillo prohibiting normal relations with its neighbouring island. In line with this, flights to and from Verde are refused access to Amarillo’s airspace. As a result, flights operated by Verde International Airlines (VIA) steer clear of Amarillo’s airspace. VIA is a private corporation registered in Verde, as are all of its aircraft. Both Isla Verde and Tierra Gris have criminalised gross negligence on the part of medical personnel. Tierra Gris’ Criminal Code contains the following provision:

Tierra Gris Criminal Code, art 17 (1) Every one guilty of medical manslaughter is guilty of an offence and liable to imprisonment for a term not exceeding ten years. (2) For the purposes of art 17(1) ‘medical manslaughter’ arises where a person (the accused) purports to lend medical assistance to another (the victim) and as a result significantly contributes to the victim’s death through a failure on the part of the accused to exercise the level of skill or care that could reasonably be expected of the accused. (3) An offence is committed under art 17(1) regardless of the nationality of the accused and regardless of where the conduct in question arises, provided the victim is a national of Tierra Gris.

Art 23 of Verde’s Criminal Code also creates an offence of medical manslaughter, but in slightly different terms. The differences are shown underlined: Verde Criminal Code, art 23 (1) Every one guilty of medical manslaughter is guilty of an offence and liable to imprisonment for a term not exceeding ten years. (2) For the purposes of art 23(1) ‘medical manslaughter’ arises where a person (the accused) purports to lend medical assistance to another (the victim), doing so for financial reward, and as a result significantly contributes to the victim’s death through a failure on the part of the accused to exercise the level of skill or care that could reasonably be expected of the accused. (3) An offence is committed under art 23(1) only if the conduct in question arises within the Verde Republic or aboard an aircraft registered in the Verde Republic

The current crisis
It is now just after 9 am on 12 June 2028 and you are employed by Verde’s Foreign Ministry as one of its specialists in public international law. As you arrive at work your hopes for a quiet morning are dashed when you are summoned to a crisis meeting with the foreign minister and Verde’s Air Command. You are told about a crisis involving Flight VA101, a daily scheduled flight operated by VIA. Flight VA101 departed from Puerto Esmeralda this morning at its regular time of 5 am and was due to reach its destination, the Tierra Gris city of Rucio, at 11 am. Although Rucio is almost due east from Puerto Esmeralda, the aircraft followed its normal north-easterly course so as to avoid Amarillo air space. The intention was that at around 9 am, once clear of Amarillo airspace, the plane would execute a righthand turn and then proceed as usual in a south-easterly direction towards Rucio, crossing first over Rio Rojo before reaching Tierra Gris. The intended flightpath of VA101 is shown in the map above by means of a broken red line.

Shortly after departure from Puerto Esmeralda a passenger aboard Flight VA101 was seen to spray
herself with eau de cologne, telling her companions that she had been given the aerosol perfume as
a free sample while waiting at Puerto Esmeralda airport for the departure of the flight. The passenger
is Maria Moss, a national of Tierra Gris who is that country’s ambassador to Verde. Moss is returning
home on leave. Soon after applying the perfume, Moss began to sweat profusely and then vomit.
Concerned as to whether the flight should turn back to Puerto Esmeralda, the flight crew asked
whether there was a doctor among the other passengers. Responding to the call, Dr Lincoln, a Verde
general practitioner in private practice who is travelling to Rucio on holiday, offered his services free
of charge. After a brief examination, Dr Lincoln declared that Moss was suffering from nothing more
than airsickness and would soon recover. Acting on that advice, the flight continued towards its
destination.
As Flight VA101 approached Verde’s north-eastern coast, Moss suffered cardiac arrest. Dr Lincoln
pronounced her dead shortly after 8 am. At about the same time, other passengers started to display
symptoms similar to those experienced by Moss earlier in the flight. Chesley Sage, captain of Flight
VA101, immediately sought assistance from Verde air traffic control, which has doctors available to
advise pilots in the event of medical emergencies. Upon describing the passengers’ symptoms over
the radio, including the fact that they all have constricted pupils, the doctors are unanimous in
diagnosing poisoning by VZ. This is a nerve agent even more lethal than VX: exposure to the smallest
quantity can kill. VZ is also prohibited under the Chemical Weapons Convention. The fear is that the
nerve agent has somehow spread through the air circulating in the passenger cabin. Verde air traffic
control alerted the Verde Foreign Ministry, which is how you have become involved in the crisis.
Quantities of the VZ antidote are available in Puerto Esmeralda, but Sage advises that at this stage in
the flight he has insufficient fuel to return there. Acting on the instructions of Verde air traffic control,
Captain Sage heads towards the nearest airfield, situated close to the Amarillo town of Oro. At the
same time Verde air traffic controllersreport the crisis to their counterparts in Amarillo. To everyone’s
surprise, Amarillo immediately grants permission for the plane to enter its airspace, but strictly on the
condition that it lands at Oro.
Immediately the foreign minister smells a rat. It has been suspected for some time that Amarillo has
been behind political assassinations using VZ. The foreign minister suspects that the plane is victim to
an elaborate ruse to get it to land on Amarillo soil. Aboard the flight is retired General Green, who
served as Verde’s first president up until 2010. Green has been accused of numerous atrocities during
and immediately after Verde’s struggle for independence. Most notably, Amarillo has accused him of
ordering the 2003 massacre of the last-remaining Amarillo troops on Verde, these troops having
already surrendered to VLF forces. Amarillo is the only country in the region to have accepted the
jurisdiction of the International Criminal Court (ICC): it acceded to the Rome Statute in 2001. Amarillo
has said that if ever Green sets foot on the Amarillo mainland then he will be transferred to The Hague
to stand trial before the ICC as a war criminal. The UN Security Council seems supportive of Green’s
prosecution by the Court. Failing Green’s transferral to The Hague, Amarillo says that it will itself try
Green for war crimes.
Your foreign minister’s suspicions seem confirmed when preliminary police investigations reveal that
the shop assistant who handed Maria the perfume at Puerto Esmeralda airport, though a Verde
national, lost her husband in the alleged 2003 massacre of prisoners of war. Knowing that Green is a
close friend of Verde’s current president, and wanting to protect Green from prosecution, the Minister
suggests instructing Sage to cross Amarillo territory but, rather than land at Oro, maintain a course for
Escarlata in Rio Rojo. This is the next nearest airport after Oro.

But here another problem emerges: having heard that Flight VA101 is carrying VZ, Rio Rojo has denied
Flight VA101 landing rights, fearing that the poison will endanger its own citizens. Indeed Rio Rojo is
claiming that if the flight were to touch down at Escarlata then that would amount to a ‘transfer’ by
Verde of chemical weapons to Rio Rojo, something which, according to Rio Rojo, would constitute a
breach of the Chemical Weapons Convention. Rio Rojo has also reminded Verde of Rio Rojo’s inherent
right to self defence and has sent up two fighters with instructions to shoot down Flight VA101 if it
attempts to land at Escarlata.
Your doctors are advising that the sooner the VZ antidote is administered, the greater the likelihood
that the sick passengers will survive. The antidote is known to exist in Oro, Escarlata and Rucio,
although the doctors advise that the sick patients will probably be dead by the time the plane reaches
Tierra Gris.
The foreign minister is about to meet with your president, who will make the final decision as to where
Flight VA101 should land. The foreign minister wants to go to that meeting fully briefed as to relevant
issues in international law. She therefore asks you the following questions:

Question 1 (8 marks) If the plane were to land in Oro, would international law permit Amarillo to transfer General Green to the ICC to stand trial for war crimes? Would the ICC have jurisdiction to try Green? If the ICC were to refuse to possess itself of the matter, would Amarillo be entitled under international law to itself place Green on trial for war crimes?

Question 2 (8 marks) If the plane were to land in Escarlata, rather than Oro, could Rio Rojo justifiably hold Verde responsible for a breach of international law?

Question 3 (5 marks) If the plane were to attempt to land at Escarlata, would Rio Rojo be entitled to use military force against it?

Question 4 (
Apparently Tierra Gris is furious at the death of its ambassador to Verde, blaming Verde for failing to take sufficient care of Moss’s wellbeing. Doctors in Rucio have heard about the symptoms suffered by Moss and have expressed amazement that the plane didn’t immediately return to Puerto Esmeralda. As one doctor comments, ‘it should be obvious to anyone with a modicum of medical training that VZ was involved’. Based on the known facts, to what extent could Verde be justifiably held responsible under international law for her death?

Question 5 (6 marks) If the plane were to make it all the way to Rucio, would Tierra Gris be entitled to arrest Dr Lincoln and try him under art 17 of its Criminal Code?

 

 

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