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V World Human Rights Moot Court Competition 8-10 December 2013
University of Pretoria, South Africa
IN THE MATTER BETWEEN
GIVE REFUGEES A BREAK (GRB)
AND
MUTAPA
MEMORIAL FOR THE APPLICANT
ii
INDEX
INDEX ....................................................................................................................................... ii
LIST OF ABBREVIATIONS ..................................................................................................... iv
INDEX OF AUTHORITIES ....................................................................................................... vi
Treaties and Declarations ..................................................................................................... vi
Doctrine ............................................................................................................................... vii
Books ............................................................................................................................... vii
Articles ............................................................................................................................. vii
United Nations General Assembly Resolutions and Reports .............................................. viii
International Law Commission.............................................................................................. ix
United Nations High Commissioner for Refugees ................................................................ ix
Executive Committee of the High Commissioner's Programme (ExCom) ............................ ix
International Court of Justice ................................................................................................ xi
Human Rights Committee..................................................................................................... xi
Communications................................................................................................................ xi
Concluding Observations .................................................................................................. xi
General Comments .......................................................................................................... xii
Committee on Economic, Social and Cultural Rights .......................................................... xii
General Comments .......................................................................................................... xii
Committee on the Rights of the Child .................................................................................. xii
Human Rights Council ........................................................................................................ xiii
Commission on Human Rights ........................................................................................... xiii
European Court on Human Rights ...................................................................................... xiii
European Commission on Human Rights ........................................................................... xiv
Inter-American Court of Human Rights ............................................................................... xiv
Cases .............................................................................................................................. xiv
Advisory Opinions ............................................................................................................ xv
Inter-American Commission of Human Rights ..................................................................... xv
Cases ............................................................................................................................... xv
Reports ............................................................................................................................ xvi
African Commission on Human and Peoples‘ Rights ......................................................... xvi
iii
African Court on Human and Peoples‘ Rights .................................................................... xvi
International Criminal Court ............................................................................................... xvii
Miscellaneous .................................................................................................................... xvii
SUMMARY OF ARGUMENTS .............................................................................................. xviii
HEADS OF ARGUMENTS ........................................................................................................ 1
I) Admissibility. ................................................................................................................... 1
II) Merits. ............................................................................................................................. 2
A) The Mutapa Government‟s Moratorium is inconsistent with its International Obligations
........................................................................................................................................... 2
(i) Mutapa‘s moratorium violates articles 33 of the 1951 Convention and 14 of the
ICCPR. ............................................................................................................................ 3
(ii) In the alternative, Mutapa should have requested aid from the international
community and the UNHCR and implemented the existing responses for situations of
mass influx. ..................................................................................................................... 5
B) The Mutapa Government‟s refusal to grant refugee status to ex-child soldiers is in
violation of IHRL ................................................................................................................. 5
(i) Ex-child soldiers were not excludable under article 1F of the 1951 Convention. ...... 7
(ii) The collective expulsion violates Mutapa‘s non-refoulement obligations............... 8
C) The installation of the Merciless and the consequential deaths of Sambians are in
violation of IHRL ............................................................................................................... 10
D) Mutapa‟s Government neglects the rights of learners with disabilities in its public
schools ............................................................................................................................. 13
(i) In the alternative, Mutapa discriminates children with disabilities. .......................... 15
III) Prayer for Relief. ........................................................................................................ 16
iv
LIST OF ABBREVIATIONS
ACHPR African Charter on Human and Peoples‟ Rights
ACHR
ADRDM
American Convention on Human Rights
American Declaration of the Rights and Duties of Man
AComHPR African Commission on Human and Peoples‟ Rights
ACtHPR African Court on Human and Peoples‟ Rights
CESCR Committee on Economic, Social and Cultural Rights
CRC Convention on the Rights of the Child
ECtHR European Court of Human Rights
ExCom Executive Committee of the High Commissioner's Programme
GA General Assembly
GRB
HCM
Give Refugees a Break
High Court of Mutapa
HRC Human Rights Committee
IAComHR Inter-American Commission of Human Rights
IACtHR Inter-American Court of Human Rights
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ILC
LWD
LWDC
OD
International Law Commission
Learners with Disabilities
Learners with Disabilities Committee
Operation Destroy
v
VCLT
UNCRPD
Vienna Convention on the Law of Treaties
United Nations Convention on the Rights of Persons with Disabilities
UNHRC United Nations Human Rights Council
vi
INDEX OF AUTHORITIES
Treaties and Declarations
– Universal Declaration of Human Rights, 1948.
– American Declaration of the Rights and Duties of Man, 1948.
– European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950.
– Convention Relating to the Status of the Refugees, 1951.
– Protocol No.4 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, 1963.
– Bangkok Principles on the Status and Treatment of Refugees, 1966.
– International Covenant on Civil and Political Rights, 1966.
– International Covenant on Economic, Social and Cultural Rights, 1966.
– Protocol to the 1951 Convention Relating to the Status of Refugees, 1967.
– Vienna Convention on the Law of Treaties, 1969.
– American Convention on Human Rights, 1969.
– Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969.
– Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 1977.
– Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977.
– African Charter on Human and Peoples' Rights, 1981.
– Cartagena Declaration on Refugees, 1984.
– Convention on the Rights of the Child, 1989.
vii
– African Charter on the Rights and Welfare of the Child, 1990.
– Rome Statute of the International Criminal Court, 1998.
– Convention on the Rights of Persons with Disabilities, 2006.
Doctrine
Books
– GARRETÓN, R., ―PRINCIPIO DE NO DEVOLUCIÓN. FUERZA NORMATIVA, ALCANCES,
APLICACIÓN EN LOS PAÍSES NO PARTES EN LA CONVENCIÓN‖, in Memoria del Coloquio
Internacional, 10 Años de la Declaración de Cartagena sobre Refugiados, San
José, ACNUR/IIDH, 211, 1995.
– GOODWIN-GILL, G. S. & MCADAM, J., THE REFUGEE IN INTERNATIONAL LAW, Oxford
University Press, 2007.
– HATHAWAY, J., THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW, Cambridge
University Press, 2005.
– LAUTERPACHT E. & BETHLEHEM, D., ―THE SCOPE AND CONTENT OF THE PRINCIPLE OF
NON-REFOULEMENT‖, in Feller E., Türk V., & Nicholson, F. (Eds.), Refugee Protection
in International Law: UNHCR‟s Global Consultations on International Protection,
Cambridge University Press, 2003.
– MELZER, N., TARGETED KILLING IN INTERNATIONAL LAW, Oxford Monographs in
International Law, 2009.
Articles
– ALSTON, P., ―The CIA Targeted Killings Beyond Borders‖, 2 HARVARD NATIONAL
SECURITY JOURNAL, 283 (2011).
viii
– BEN-NAFTALI, O. AND MICHAELI, K., ―We Must Not Make a Scarecrow of the Law‖, 36
CORNELL INTERNATIONAL LAW JOURNAL, 233 (2003).
– BRADLEY, C. A., ―Unratified Treaties, Domestic Politics and the U.S. Constitution‖,
48 HARVARD INTERNATIONAL LAW JOURNAL, 314 (2007).
– DROEGE, C., ―The Interplay between International Humanitarian Law and
International Human Rights Law in Situations of Armed Conflict‖, 40 ISRAEL LAW
REVIEW, 310 (2007)
– EDWARDS, A., “Human Rights, Refugees and the Right to Enjoy Asylum‖, 17
INTERNATIONAL JOURNAL OF REFUGEE LAW, 293 (2005).
– HAPPOLD, M., ―Excluding children from refugee status: child soldiers and article 1F
of the Refugee Convention‖, AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW,
1131 (2002).
– KREMNITZER, M., ―Preventive Killings‖, PRESENTATION, Bonn (2004).
– SANTOSH, P., ―Protecting Refugees and asylum seekers under the International
Covenant on Civil and Political Rights‖, New Issues in Refugee Research,
Research Paper No. 132, UNHCR (2006).
– RUYS, T., ―License to kill? State-Sponsored Assassination under International Law‖,
44 MILITARY LAW AND LAW OF WAR REVIEW, 13 (2005).
United Nations General Assembly Resolutions and Reports
– G.A., Res. 2312 (XXII), U.N. Doc. A/RES/2312 (Dec. 14, 1967).
– G.A., Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (Jul.
12, 1993).
– G.A., Res. 52/103, U.N. Doc. A/RES/52/103 (Dec. 12, 1997).
ix
– G.A., Note on international protection, U.N. Doc. A/AC.96/951 (Sept. 13, 2001).
International Law Commission
– ILC Drafting Committee, Expulsion of aliens, Texts of draft articles 1-32
provisionally adopted on first reading, 64th session, U.N. Doc. A/CN.4/L.797 (May
24, 2012).
United Nations High Commissioner for Refugees
– UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied
Children Seeking Asylum, February 1997.
– UNHCR, UNHCR Note on the Principle of Non-Refoulement, November 1997.
– UNHCR, Global Consultations on International Protection/Third Track: Protection of
Refugees in Mass Influx Situations: Overall Protection Framework, U.N. Doc.
EC/GC/01/4, 19 February 2001.
– UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F
of the 1951 Convention relating to the Status of Refugees, 04 September 2003.
– UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the
Status of Refugees, U.N. Doc. HCR/1P/4/ENG/REV.3, December 2011.
– UNHCR, Roundtable on Temporary Protection: 19-20 July 2012. International
Institute of Humanitarian Law, San Remo, Italy: Summary Conclusions on
Temporary Protection, 20 July 2012.
Executive Committee of the High Commissioner's Programme (ExCom)
x
– UNHCR ExCcom, Non-refoulement, 12 October 1977, No. 6 (XXVIII) - 1977.
– UNHCR, ExCom [Reports], Note on International Protection (submitted by the High
Commissioner), 26 August 1982, U.N. Doc. A/AC.96/609/Rev.1.
– UNHCR ExCom, General Conclusion on International Protection, 20 October 1982,
No. 25 (XXXIII). – 1982.
– UNHCR, ExCom [Reports], Note on International Protection (submitted by the High
Commissioner), 9 August 1984, U.N. Doc. A/AC.96/643.
– UNHCR ExCom [Reports], Note on International Protection (submitted by the High
Commissioner), 23 July 1985, U.N. Doc. A/AC.96/660.
– UNHCR ExCom, Reports, Note on International Protection (submitted by the High
Commissioner), 3 August 1987, U.N. Doc. A/AC.96/694.
– UNHCR ExCom, General Conclusion on International Protection, 11 October 1996,
No. 79 (XLVII) - 1996.
– UNHCR ExCom, General Conclusion on International Protection, 17 October 1997,
No. 81 (XLVIII) – 1997.
– UNHCR ExCom, Safeguarding Asylum, 17 October 1997, No. 82 (XLVIII) – 1997.
– UNHCR ExCcom, Conclusion on International Cooperation and Burden and
Responsibility Sharing in Mass Influx Situations, 8 October 2004, No. 100 (LV).-
2004.
– UNHCR ExCom, Conclusion on the Provision of International Protection Including
Through Complementary Forms of Protection, 7 October 2005, No. 103 (LVI) –
2005.
– UNHCR ExCom, Conclusion on Children at Risk, 5 October 2007, No. 107 (LVIII).-
2007.
xi
International Court of Justice
– ICJ, Legal Consequences of the Construction of a Wall in the occupied Palestinian
Territory, Advisory Opinion, 2004, 136 (July 9).
Human Rights Committee
Communications
– HRC, M.A. v. S., Communication No. 20/1977, U.N. Doc. CCPR/C/OP/1 at 5 (Jan.,
25, 1978).
– HRC, Sergio Euben López Burgos v. Uruguay, Communication No. R.12/52, U.N.
Doc. A/36/40 (Jul. 29, 1981).
– HRC, Suarez de Guerrero v. Colombia, Communication No. R.11/45, U.N. Doc.
A/37/40 (Mar. 31, 1982).
– HRC, Baboeram et al v. Suriname, Communication No. 146/1983 and 148-
154/1983, U.N. Doc. A/40/40 (Apr. 10, 1984).
– HRC, Kindler v. Canada, Communication No. 470/1991, U.N. Doc.
CCPR/C/48/D/470/1991 (Jul. 30, 1993).
Concluding Observations
– HRC, Concluding Observations: Dominican Republic, U.N. Doc.
CCPR/CO/71/DOM (Apr. 26, 2001).
– HRC, Concluding Observations: Greece, U.N. Doc. CCPR/CO/83/GRC (Apr. 25,
2005).
xii
General Comments
– HRC, General Comment No. 6: The Right to Life (art. 6), U.N. Doc
HRI/GEN/1/Rev.1 at 6 (Apr. 30 1982).
– HRC, General Comment No.15, The position of aliens under the Covenant, U.N.
Doc. HRI/GEN/1/Rev.9 at 18 (Apr. 11, 1986).
– HRC, General Comment No. 17, Rights of the Child (Article 24), U.N. Doc.
HRI/GEN/1/Rev.1 at 23 (Apr. 07, 1989).
– HRC, General Comment No. 31: Nature of the General Legal Obligation Imposed
on States Parties to the Covenant, U.N. Doc CCPR/C/21/Rev.1/Add.13 (May 26,
2004).
– HRC, General Comment No. 32: Article 14: Right to Equality before Courts and
Tribunals and to a Fair Trial, U.N. Doc. CCPR/C/GC/32 (Aug. 23, 2007).
Committee on Economic, Social and Cultural Rights
General Comments
– CESCR, General Comment No. 11: Plans of action for primary education (Art. 14),
U.N. Doc. E/C.12/1999/4 (10 May 1999).
– CESCR, General Comment No. 13: The Right to Education (Art. 13), U.N. Doc.
E/C.12/1999/10 (8 Dec. 1999).
Committee on the Rights of the Child
– CRC, General Comment No. 6 (2005): Treatment of Unaccompanied and
Separated Children Outside their Country of Origin, U.N. Doc. CRC/GC/2005/6
(Sep. 1, 2005).
xiii
– CRC, General Comment No. 9 (2006): The rights of children with disabilities, U.N.
Doc. CRC/C/GC/9 (Feb. 27, 2006).
– CRC, General Comment No. 12 (2009): The right of the child to be heard, U.N.
Doc. CRC/C/GC/12 (Jul. 20, 2009).
– CRC, General comment No. 14 (2013) on the right of the child to have his or her
best interests taken as a primary consideration (art. 3, para. 1), U.N. Doc.
CRC/C/GC/14 (May 29, 2013).
Human Rights Council
– UNHRC, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Philip Alston, A/HRC/14/24/Add.6, May 28, 2010.
– UNHRC, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, Christof Heyns, A/HRC/23/47, April 9, 2013.
Commission on Human Rights
– UNHRC, Preliminary Report of the Special Rapporteur on the right to education,
Ms. Katarina Tomasevski, submitted in accordance with Commission on Human
Rights resolution 1998/33, U.N. Doc. E/CN.4/1999/49 (Mar. 1, 1999).
European Court on Human Rights
– ECtHR, Application No. 2832/66, 2835/66 and 2899/66, Cases of De Wilde, Ooms
and Versyp ("Vagrancy") v. Belgium (Merits), 18/06/1971.
– ECtHR, Application No. 5310/71, Case of Ireland v. The United Kingdom,
18/01/1978.
xiv
– ECtHR, Application No. 7299/75; 7496/76, Albert and Le Compte v. Belgium,
10/02/1983.
– ECtHR, Application No. 21893/93, Akdivar and Others v. Turkey, 16/09/1996.
– ECtHR, Application No. 21987/96, Aksoy v. Turkey, 10/12/1996.
– ECtHR, Application No.45917/99, Vedran Andric v. Sweden, 23/02/1999.
– ECtHR, Applications No. 34044/96, 35532/97, 44801/98, Streletz, Kessler and
Krenz v. Germany, 22/03/2001.
– ECtHR, Application No. 37201/97, K.H.W. v. Germany, 22/03/2001.
– ECtHR, Application No. 51564/99, Conka v. Belgium, 02/02/2002.
– ECtHR, Application No. 59140/00, Okpisz v. Germany, 25/10/2005.
– ECtHR, Application No. 16944/2003, Mikolenko v. Estonia, 05/01/2006.
– ECtHR, Application No. 56581/00, Sejdovic v. Italy, 01/03/2006.
– ECtHR, Application No. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04,
14163/04, 19993/04 and 21819/04, Demopoulos and Others v. Turkey, 01/03/2010.
– ECtHR, Application No. 30696/09, M.S.S. v. Belgium and Greece, 21/01/2011.
European Commission on Human Rights
Cases
– ECiHR, Application No. 22880/93, Ayetkin v. Turkey, 18/09/1993.
Inter-American Court of Human Rights
Cases
– IACtHR, Case of Neira Alegria et al v. Peru, Merits, 19/01/1995, Series C No. 21
– IACtHR, Case of the “Street Children” (Villagrán Morales y otros) v. Guatemala,
Merits, 19/11/1999, Series C No. 63.
xv
– IACtHR, Case of Baena-Ricardo et at. v. Panama, Merits, Reparation and Costs,
2/02/2001, Series C No. 72.
– IACtHR, Case of Bulacio v. Argentina, Merits, Reparation and Costs, 18/09/2003,
Series C No. 100.
– IACtHR, Case of the Pueblo Bello Massacre v. Colombia, Merits, Reparations and
Costs, 31/01/2006, Series C No. 140.
– IACtHR, Case of Furlan and Family v. Argentina, Preliminary Objections, Merits,
Reparations and Costs, 31/08/2012, Series C No. 246.
– IACtHR, Case of Nadege Dorzema et al v. Dominican Republic, Merits, 24/10/2012,
Series C No. 4.
Advisory Opinions
– IACtHR, Advisory Opinion on International Responsibility for the Promulgation and
Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American
Convention on Human Rights), Advisory Opinion OC-14/94, 09/12/1994, Series A
No. 14.
– IACtHR, Avisory Opinion on the Juridical Status and human rights of the child
Advisory Opinion-17/02, 28/08/2002, Series A No. 17
– IACtHR, Advisory Opinion on Juridical Condition and Rights of the Undocumented
Migrants, Advisory Opinion OC-18/03, 17/09/2003, Series A No. 18.
Inter-American Commission of Human Rights
Cases
xvi
– IAComHR, Report No. 51/96, Case No. 10.675, Decision of the Commission as to
the Merits of Case 10.675 v. United States, Merits, 13/03/1997.
– IAComHR, Report No. 86/99, Case No. 11.589, Case of Alejandre et al v. Cuba,
Merits, 29/09/1999.
– IAComHR, Report No. 78/11, Case 12.586, Case of John Doe et al v. Canada,
Merits, 21/07/2011.
Reports
– IAComHR, Report on the situation of Human Rights of asylum seekers within the
Canadian refugee determination system, OEA/Ser.L/V/II.106, Doc. 40 rev.,
28/02/2000.
– IAComHR, Report on the Situation of Human Rights in Guatemala,
OEA/Ser.L/V/II.111, Doc. 21 rev., 06/04/2001.
– IAComHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev.
1 corr., 22/10/2002.
African Commission on Human and Peoples’ Rights
– AComHPR, Article 19 v. Eritrea, Communication No. 275/ 2003, May 2007.
African Court on Human and Peoples’ Rights
– ACtHPR, Applications No. 009/2011 & 011/2011, Tanganyika Law Society, The
Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of
Tanzania, 14/06/13.
xvii
International Criminal Court
– International Criminal Court, The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-
01/06, 14/03/2012.
Miscellaneous
– UNICEF, The Paris Principles. Principles and Guidelines on Children Associated
With Armed Forces or Armed Groups, February 2007.
xviii
SUMMARY OF ARGUMENTS
§ CLAIM A
GRB states that Mutapa violated Sambian asylum seekers right to seek and enjoy
asylum since the 1951 Convention does not allow States to impose a moratorium on the
consideration of asylum claims. Lastly, GRB argues that Mutapa violated their right to have a
due process and that it failed to consider other options to protect them.
§ CLAIM B
GRB considers that Mutapa‘s refusal to grant asylum to ex-child soldiers violates
international human rights law [hereinafter, IHRL] and that it failed to provide these
unaccompanied children the special protection they are entitled to. Furthermore, GRB
submits that the return of the ex-child soldiers to Sambo consisted in a collective expulsion
that resulted in a violation to the principle of non-refoulement. Finally, it did not provide them
complementary protection.
§ CLAIM C
GRB submits that Mutapa violated the right to life by installing the Merciless without
consideration of other means of protection which lead to the arbitrarily deprivation of the right
to life of innocent Sambians, consequence that was covered up by an ineffective
investigation.
§ CLAIM D
GRB argues that Mutapa implemented a regression policy that neglected the rights of
learners with disabilities [hereinafter, LWD] in its public schools. Also, GRB considers that
Mutapa discriminates children with disabilities.
1
HEADS OF ARGUMENTS
I) ADMISSIBILITY.
Claim A is admissible since all available local remedies have been exhausted1 and it is
not under examination in another procedure of international investigation.2
Applicants are only obliged to exhaust domestic remedies which are capable of
providing redress and offering reasonable prospects of success.3 Therefore, local remedies
regarding claims B, C and D need not to be exhausted since any approach to any Mutapian
Court would have been ineffective.4 The LWDC approach to the High Court and the judicial
stages of the moratorium case proved that there is futile legal system in Mutapa evidenced by
a Constitutional Court that do not give reasons of its rulings. Along this line, the collective
expulsion of the ex-child soldiers was neither reviewed by a judicial authority.
Moreover, the general legal and political context in which formal remedies operate
must be considered.5 Thus, ―[t]he rule is also inapplicable where an administrative practice
consisting of a repetition of acts incompatible with the Convention and official tolerance by the
State authorities has been shown to exist, and is of such a nature as to make proceedings
futile or ineffective‖.6 A practice incompatible with international obligations consists of an
accumulation of analogous breaches which are sufficiently numerous and inter-connected to
1 ECtHR, De Wilde, Ooms and Versyp v. Belgium, ¶60; AComHPR, Article 19 v. Eritrea, ¶4.
2 ECtHR, Mikolenko v. Estonia, p. 12; HRC, M. A. v. S., ¶3.
3 ECtHR, Sejdovic v. Italy, ¶46.
4 ECtHR, Demopoulos and Others v. Turkey, ¶67.
5 ECtHR, Akdivar and other v. Turkey, ¶68-69.
6 ECtHr, Aksoy v. Turkey, ¶52.
2
amount not merely to isolated exceptions.7 Mutapa‘s conducts are not isolated. Sambian
asylum seekers are prevented for receiving international protection, ex-child soldiers were
refouled, the MX6 incident showed that administrative investigations were biased and
Mutapa‘s neglect of the rights of LWD constitutes an ongoing violation tolerated and ‗justified‘
by State officials who are systematically cutting educational funds, especially in schools
where most of the students are Sambians.
II) MERITS.
A) The Mutapa Government‟s Moratorium is inconsistent with its International
Obligations
The fundamental importance of the right of every person to seek and enjoy asylum
achieved unanimous acceptance within the international community.8 This right is implicit in
the 1951 Convention9 given that, once the conditions for refugee status are gathered, States
must grant it to those who apply for it10 since recognition is essentially declaratory in nature.11
Mutapa violated Sambian asylum seekers‘ right to seek and enjoy asylum as it passed a
moratorium on ―the consideration of all asylum applications for refugee status‖, preventing
them from receiving international protection as their claims are not even being analyzed.
7 ECtHR, Case of Ireland v. The United Kingdom, ¶159.
8 UDHR, art.14; ACHPR, art.12.3; ADRDM, art.XXVII; ACHR, art. 22.7; GA., Vienna
Declaration and Programme of Action, ¶23; IAComHR, John Doe et al v. Canada, ¶94.
9 Edwards, p.298.
10 ECtHR, M.S.S. v. Belgium and Greece, ¶54.
11 UNHCR, Handbook and Guidelines, ¶28; Lauterpatch/Bethlehem, p.116.
3
As a State party of the 1951 Convention, Mutapa is under the obligation to assess all
asylum claims and, in the event, to provide shelter to those who deserve it as international
protection constitutes one of the main 1951 Convention‘s objectives.12
Sambian asylum seekers are considered illegal immigrants and face deportation.
Under IHRL, a provision that manifestly violates the obligations assumed by a state
constitutes a violation to the concerned treaty and gives rise to international responsibility.13 In
this regard, the provision is incompatible with international law as it completely denies the
consideration of an eventual international protection to those who are entitled to it. Moreover,
the 1951 Convention does not allow states to impose such a moratorium and the regulation of
the exercise of a right cannot repeal the same rights and liberties whose application is
allegedly setting.14
(i) Mutapa‟s moratorium violates articles 33 of the 1951 Convention and 14 of the
ICCPR.
The principle of non-refoulement prevents States from removing refugees or asylum
seekers to their country of origin if the individual has a well-founded fear of being
persecuted.15 By imposing the moratorium, Mutapa is not analyzing if there are substantial
12 Goodwin-Gill / McAdam, p.54.
13 IACtHR, Advisory Opinion OC-14/94, ¶50. HRC, General Comment No. 31, ¶4.
14 ACtHPR, Tanganyika Law Society, The Legal and Human Rights Centre & Rev.
Christopher R. Mtikila v. The Republic of Tanzania, ¶109.
15 1951 Convention Relating to the Status of the Refugees, art.33; OAU Refugee Convention,
art.II.3; ACHR, art.22.8; G.A. Res. 2312 (XXII), art. 3.1; G.A., Note on international protection,
¶16; Res. 52/103, ¶5; Bangkok Principles on the Status and Treatment of Refugees, art.III.1;
4
grounds to consider that these asylum seekers may face a risk of irreparable harm16 in
Sambo if deportation is executed. This non-refoulement principle, cornerstone of international
protection of refugees,17 is also the most vital tool that asylum seekers have in order to be
able to enter to the State‘s host territory and receive protection.18
Mutapa‘s moratorium also violates article 14 of the ICCPR as it forbids individuals to
claim for the recognition of refugee status. Each State has the authority to establish the
procedure that it finds most suitable,19 given that the faculty to assess the pertinence of the
concession of refugee status relies on the State whose protection is required.20 Nevertheless,
the moratorium demonstrates that there is a complete violation to the right of everyone to
have a fair hearing for the determination of refugee status.21 It should be noted that this right
is deemed applicable to both, criminal and administrative proceedings22 such as the refugee
status determination process.23
UNHCR, Note on the Principle of Non-Refoulement, ¶C; UNHCR ExCom Conclusion No. 6,
¶(c), No. 79, ¶(j) and No. 82, ¶(i); Hathaway, p.304.
16 HRC, General Comment No. 31, ¶12.
17 Cartagena Declaration on Refugees, ¶III.5; Santosh, p.6.
18 Goodwin-Gill / McAdam, p.344.
19 UNHCR, supra note 11, ¶189.
20 G.A., Res. 2312 (XXII), art.1.3.
21 UNHCR, supra note 11, ¶192; IAComHR, Decision of the Commission as to the Merits of
Case 10.675 v. U.S., ¶155.
22 HRC, General Comment No.32, ¶III. 2; IACtHR, Case of Baena Ricardo et al. v. Panamá,
¶127; ECtHR, Albert and Le Compte v. Belgium, ¶39.
23 IAComHR, OEA/Ser.L/V/II.106, Doc. 40 rev., ¶40.
5
(ii) In the alternative, Mutapa should have requested aid from the international
community and the UNHCR and implemented the existing responses for
situations of mass influx.
The Executive Committee of the UNHCR24 and the GA25 have acknowledged that
international co-operation is a useful tool to cope with international problems of humanitarian
character. Plus, the 1951 Convention provides for co-operation between the Contracting
States and the UNHCR.26 This co-operation was not requested by Mutapa.
Moreover, when the individual procedure of refugee status determination is
impracticable due to a large-scale arrival of refugees, alternative responses have been
employed by States,27 such as prima facie determination on a group basis28 or granting
temporary protection against refoulement.29
For the expressed reasons, this Court should consider Mutapa‘s moratorium as
contrary to its international obligations.
B) The Mutapa Government‟s refusal to grant refugee status to ex-child soldiers is in
violation of IHRL
24 UNHCR ExCom Conclusion No. 100, ¶(k).
25 G.A. Res. 2312 (XXII), ¶1.
26 1951 Convention Relating to the Status of Refugees, art.35.
27 UNHCR, Global Consultations on International Protection/Third Track: Protection of
Refugees in Mass Influx Situations: Overall Protection Framework, ¶4.
28 UNHCR, supra note 11, ¶44.
29 UNHCR, Roundtable on Temporary Protection, ¶4.
6
Children are entitled, due to their particular status, to special protection.30 Therefore,
States are compelled to adopt exceptional measures31 in order to fully assist them.
In this regard, in any activity in which a child is involved, the State must take into
account his bests interests as a primary consideration.32 In addition, as soon as public
authorities acknowledge that unaccompanied children are under its jurisdiction, States must
take all necessary measures to identify and register them through interviews,33 gather
information regarding the reasons for being unaccompanied and determine the potential
existence of international protection needs.34 In these sense, the fact that these ex-child
soldiers did not request to be recognized as refugees does not release Mutapa from its
obligation to eventually refer them to the refugee status procedure.
In the assessment of a child‘s best interest, children must be allowed to express his
views. The CRC stated that a child‘s right to be heard in all the issues that concern him is a
―clear and immediate legal obligation of States parties under the Convention‖.35 The fulfillment
of this obligation was crucial for Mutapians officials to analyze the particular situation these
30 GA., supra note 8, ¶21; UDHR; art.25.
31 HRC, General Comment No. 17, ¶1; IACtHR, OC-17/02, ¶62.; IACtHR, Case of Bulacio v.
Argentina, ¶133; IACtHR, Case of the ―Street Children‖ v. Guatemala, ¶146; UNHCR, ExCom
Conclusion No. 107 (LVIII), ¶b.2.
32 CRC, General Comment No. 14, ¶13; HRC, CCPR/CO/83/GRC, ¶17; African Charter on
the Rights and Welfare of the Child 1990, art.4.
33 CRC, General Comment No. 6, ¶31; UNHCR, Guidelines on Policies and Procedures in
Dealing with Unaccompanied Children Seeking Asylum, ¶5.8.
34 Ibid., ¶31.
35 CRC, General Comment No. 12, ¶135.
7
children were facing and for determining the priority of protection needs. Along this line, all
processes in which a child participates must be informative, child-friendly, and sensitive to
risk.36 Furthermore, the lack of information relating to asylum procedures is a hindrance for
actually accessing to those proceedings.37 These unaccompanied children, who were even
being smuggled to Mutapa, did not receive any information concerning it.
(i) Ex-child soldiers were not excludable under article 1F of the 1951 Convention.
In order to exclude a person from international protection, there must be serious
reasons for considering that the individual committed an excludable act.38 As the status of the
ex-child soldiers was not analyzed by competent authority, Mutapa could have not applied
article 1F. To exclude a person from international protection there must be clear and credible
evidence.39
Children who are forced to take part in armed conflicts are victims of offences against
international law.40 In fact, there is an absolute criminal prohibition on recruiting children under
the age of 15,41 conduct that constitutes a war crime42 and engages individual criminal
responsibility.43
36 Ibid., ¶134.
37 ECtHR, supra note 10, ¶304.
38 1951 Convention Relating to the Status of Refugees, art. 1F.
39 UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the
1951 Convention relating to the Status of Refugees, ¶108.
40 UNICEF, Paris Principles, ¶3.6; Happold, p.1135.
41 Convention on the Rights of the Child, art.38; Protocol Additional to the Geneva
Conventions (I), art.77(2); Protocol Additional to the Geneva Conventions (II), art. 4(3)(c).
8
In any event, if refugee status could have not been granted, the CRC has stated that
complementary protection shall be afforded to unaccompanied children.44 This
complementary protection must be available to the extent ―determined by their protection
needs‖45 and must always consider the best interest of the child.46
(ii) The collective expulsion violates Mutapa‟s non-refoulement obligations.
Collective expulsions of aliens are prohibited under IHRL.47 Therefore, the decision to
expel an alien must be based on an objective examination of each individual case within a
group48; the individuals affected must also have access to effective remedies.49 In the case at
bar, Mutapa expelled the ex-child soldiers without individualizing them or making a previous
assessment of their migratory status. Judicial revision was neither granted.
42 Rome Statute of the International Criminal Court, art.8(2)(b)(xxvi)-(e)(vii).
43 ICC, The Prosecutor v. Thomas Lubanga Dyilo, ¶1358.
44 CRC, General Comment No. 6 (2005), ¶77.
45 Ibid.
46 UNHCR, ExCom Conclusion on the Provision of International Protection Including Through
Complementary Forms of Protection, ¶n).
47 ACHR, art.22.9; ACHPR, art.12.5; Protocol No. 4 to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, art.4.
48 ECtHR, Vedran Andric v. Sweden, ¶1; ECtHR, Conka v. Belgium, ¶59; IACtHR, Nadege
Dorzema et al v. Dominican Republic, ¶175; ILC Drafting Committee, Expulsion of aliens,
art.10.
49 HRC, General Comment No.15, ¶10; HRC, CCPR/CO/71/DOM, ¶16; ILC, supra note 48,
art.26.
9
Moreover, the ius cogens principle of non-refoulement50 obliges States not to return a
person to a State where his life or freedom would be threatened,51 whether or not he has
been granted refugee status.52 Therefore, a State cannot return a child to a country where
there are ―substantial grounds for believing that there is a real risk of irreparable harm to the
child, such as [...] those contemplated under articles 6 and 37 of the CRC‖.53 The lives of
these children were under threat in Sambo and their expulsion resulted in their assassination.
The inherent right to life recognized in article 6 of the CRC is the most essential right
that States are obliged to guarantee, irrespective of the child‘s national origin.54 Mutapas‘
authorities violated these children‘s right to life by expelling them as they were aware that
their death was a foreseeable consequence.55
Relying on these conclusions, GRB submits that the removal of the ex-child soldiers to
Sambo exposed them to treatment proscribed by the non-refoulement principle and consisted
in a collective expulsion.
50 Garretón, p.229; UNHCR, ExCom Conclusion No. 25 ¶b); ExCom Reports, A/AC.96/694,
¶21; ExCom Reports, A/AC.96/660, ¶17; UNHCR, ExCom Reports, A/AC.96/643, ¶15;
ExCom Reports, A/AC.96/609/Rev.1, ¶5.
51 1951 Convention Relating to the Status of Refugees, art.33.1.
52 Hathaway, p.304; UNHCR ExCom, Conclusions No. 6, ¶(c) and No. 81, ¶(i).
53 CRC, General Comment No. 6, ¶27.
54 CRC, arts. 2 and 6.
55 HRC, Kindler v. Canada, ¶6.2.
10
C) The installation of the Merciless and the consequential deaths of Sambians are in
violation of IHRL
Although the violations occurred on Sambian soil, every case of targeted killing outside
the territorial jurisdiction of the operating State brings the targeted person within the
jurisdiction of that State under the meaning of the ICCPR.56 In other words, Mutapa exercised
sufficient factual control or power57 to perpetrate targeted killings and therefore should also
assume legal responsibility.58
The right to life is an inalienable attribute of human beings and constitutes the supreme
value in the hierarchy of human rights.59 Therefore, is not subject to suspension or
derogation.60 The HRC specified that, in addition to the negative obligation not to arbitrarily
interfere with the right to life, States also have a positive obligation to adopt all appropriate
measures to protect and preserve that right, and to prevent and punish not only deprivations
of life by criminal acts, but also arbitrary killings by their own security forces.61
Mutapa failed to comply with the international human rights accepted standards of
‗arbitrariness‘, namely absolute necessity, proportionality and precaution.
56 HRC, supra note 13, ¶10; HRC, Burgos v. Uruguay, ¶12.2; Melzer, p.138.
57 HRC, General Comment No. 31, ¶10; ICJ, The Wall, Advisory Opinion, ¶¶108-111.
58 Droege, pp.334-335.
59 ECtHR, Streletz, Kessler and Krenz v. Germany, ¶94; ECtHR, K.H.W. v. Germany, ¶96.
60 ICCPR, art. 4(2).
61 HRC, General Comment No. 6, ¶3; IACtHR, Case of the Pueblo Bello Massacre v.
Colombia, ¶120.
11
Regarding the necessity condition,62 Mutapa could have employed other ways of self-
protection that would not imply such a risk to the lives of the Sambians. For instance, it could
have increased the number of soldiers positioned at the border —Mutapa was known for its
army of over 2 million soldiers—. Further, the implementation of autonomous killing machines
exceeds the minimum force necessary to protect a border from an occasional attack.
Considering that confrontations decreased significantly, the threat did not require the resort to
lethal force. Accordingly, Mutapa failed to prove that the use of lethal force was its last resort,
and that no non-lethal means were available.63
Merciless can neither fulfill the proportionality standard since this requisite necessarily
involves ‗distinctively human judgment‘ which relies in notions such as ‗common sense‘ or
‗good faith‘.64 In this regard, Professor Heyns explained that humans might possess those
qualities, while machines make calculated choices, which lacks of common sense,
understanding of the intentions behind people‘s actions, compassion and intuition.65
Eventually, while the Merciless would only evaluate the supposed hostile intent, a
human, instead, can consider other factors to prevent the use of lethal force, especially in the
case under study, where hundreds of innocent escaping civilians perished only because their
chasers where too close to them.
62 UNHRC, A/HRC/14/24/Add.6, ¶86; IAComHR, Alejandre et al v. Cuba, ¶42; IAComHR,
Report on Terrorism and Human Rights, ¶99f; IAComHR, Report on the Situation of Human
Rights in Guatemala, ¶50.
63 Ben-Naftali / Michaeli, ¶286; Kremnitzer, ¶2; Ruys, ¶20 f.
64 UNHRC, A/HRC/23/47, ¶72.
65 Ibíd., ¶55.
12
Besides that, the military force used was disproportionate in relation to the uncertain
threat posed by OD, and no precautionary measures —such as warnings or the opportunity to
surrender—66 were put into effect to reduce the human cost of crushing the riot.67 Even
worse, the only warning installed by Mutapa along the border says that ―[t]respassers will be
prosecuted‖, but nothing related to the MX6.
Likewise, it should be remembered that the Merciless acts based on a mere suspicion
that the concerned individual may constitute a threat68 and therefore deprives him of the
protections of due process of law without justification.
Moreover, by installing the merciless, Mutapa objectively created a dangerous situation
for civilians and failed to adopt sufficient measures to avoid the killing of innocent individuals.
While it subsists, this dangerous situation accentuates the State‘s special obligations of
prevention and due diligence in the zone where the merciless were present, as well as the
obligation to investigate thoroughly the acts occurred.69
GRB considers that Mutapa failed to carry out this effective investigation. On the
contrary, it was completely compromised on transparency and independence aspects, as the
team in charge was only composed by members of the Department of Defense Office.
For the reasons expressed, GRB considers that the installation of the Merciless and
the consequential deaths of innocent Sambians were in violation of IHRL.
66 IAComHR, Alejandre et al v. Cuba, ¶42; Alston, ¶304.
67 IACtHR, Neira Alegría et al. v. Perú, ¶43, 62 and 69.
68 HRC, Suarez de Guerrero v. Colombia, ¶13.1/13.3; ECiHR, Ayetkin v. Turkey, ¶96.
69 IACtHR, Case of the Pueblo Bello Massacre v. Colombia, ¶126.
13
D) Mutapa‟s Government neglects the rights of learners with disabilities in its public
schools
The right to education enshrined in article 13 of the CESCR, imposes three types or
levels of obligations on State parties: to respect, to protect and to fulfill,70 duty that also
incorporates an obligation to facilitate and a responsibility to provide.71
The obligation to respect requires States to avoid actions that hinder the enjoyment of
the right in discussion and the obligation to protect requests the adoption of measures
destined to prevent that others may interfere it. Finally, States must facilitate and provide the
right to individuals and communities who are unable to reach it.72 Instead, Mutapa acted
against those directives, by implementing a regression on the school funding, which made it
impossible to children with disabilities to completely access it.
Moreover, LWD are entitled to a special protection based on their vulnerable
situation.73 Therefore states have a duty to respect and ensure their human rights and to
promote their inclusion through equal conditions, opportunities and participation in all spheres
of society.74
Mutapa failed to remove or adapt the social model for disability, which not only implies
the presence of a physical, mental, intellectual or sensory impairment, but also social barriers
that prevent the exercise of their rights effectively.75 Consequently, Mutapa should have also
70 CESCR, General Comment No. 13, ¶46.
71 Ibid.
72 Ibid., ¶47.
73 CRC, General Comment No. 9, ¶8.
74 IACtHR, Furlan and Family v. Argentina, ¶134.
75 Ibid., ¶133.
14
adopted affirmative measures to remove those limitations.
As stated by Professor Tomasevski, Mutapa‘s Government obligations can be
structured into a 4-A scheme, denoting the four essential features that schools should exhibit,
all of them violated by Mutapa: availability, accessibility, acceptability and adaptability.76
In this regard, Mutapa‘s schools does not reach the minimum educational standards
expected due to their infrastructure problems, such as the absence of access ramps and
disability rights-friendly amenities, which made those schools inaccessible to children with
mobility impairments. In addition, the number of professors trained in specific teaching
methods was not adapted to the amount of children with special needs enrolled at schools —
specially in Yard Secondary, where only 20% of them had undergone any related trainings—
as well as the unacceptable quantity of special education text books, like Braile ones.
From another point of view, ICESCR promotes state parties to take steps to the
maximum of its available resources with a view to achieving progressively the full realization
of the rights recognized on it.77 Contrary to that provision, Mutapa‘s Government decreased
the funds allocated to schools on the excuse that it could not afford it. This justification is
inconsistent with the expenditure of half a million dollars on the Merciless, considering that
Mutapa spends only 2% of its education budget on special education.
Finally, although Mutapa cannot be responsible for violating the UNCRPD, article 18 of
the VCLT ―oblige[s] [states] to refrain from acts which would defeat the object and purpose‖ of
the concern treaty.‖78 Mutapa‘s attitude towards LWD frustrates the object and purpose of the
UNCRPD.
76 UNHRC, E/CN.4/1999/49, ¶50.
77 ICESCR, art.2(1); CESCR, General Comment No. 11, ¶10.
78 Bradley, p.316.
15
(i) In the alternative, Mutapa discriminates children with disabilities.
According to the ECtHR, a difference of treatment is discriminatory if it ―has no
objective and reasonable justification‖, that is, if it does not pursue a ―legitimate aim‖ or if
there is not a ―reasonable relationship of proportionality between the means employed and
the aim sought to be realized‖.79
GRB states that the Government of Mutapa failed to comply with those directives,
because it did not indicate that the regression applied specifically to LWD had a legitimate
and justified aim and therefore, it exceeded its margin of appreciation80 and ended up in a
discrimination policy. Moreover, these State practices were specially aggressive in schools
where most of their students were Sambians‘. Yard Secondary‘s case is even more
grotesque.
These allegations are corroborated by the Mutapa Government official statements. For
instance, the Minister of Education declared that ―…some of these students have „special
needs‟ and we don‟t have such a „special pocket‟. Such students are parasites to the little we
budget for these schools…‖ and the Secretary of Higher Education, regarding Sambian
students said: ―the government could not handle anything with financial implications any
more, especially where the beneficiaries are largely Sambians‖.
Likewise, since the unsuccessful approach to the HCM by LWDC, the Government of
Mutapa had not done anything to change these situations; on the contrary, after 7 years, the
only change shown in the special education schools is the said funding regression.
79 ECtHR, Okpisz v. Germany, ¶33.
80 Ibid.
16
For the expressed reasons, GRB considers that Mutapa‘s regression policy on the
education system has discriminated and neglected the rights of learners with disabilities.
III) PRAYER FOR RELIEF.
GRB humbly prays this Court to adjudge and declare that:
1. The Mutapa government‘s moratorium is inconsistent with its international
obligations.
2. The Mutapa government‘s refusal to grant refugee status to ex-child soldiers
violates IHRL.
3. The installation of the Merciless and the consequential deaths of Sambians are
in violation of IHRL.
4. The Mutapa government‘s neglect of the rights of learners with disabilities in its
public schools is in violation of IHRL.