QUESTIONS PRESENTED

1. Was the State of Rotania eligible to apprehend and rend Samara Penza and other Adovan citizens? Was Adova obliged to extradite Samara Penza and other Adovan citizens in case there was no extradition bilateral treaty? Is Rotania liable for the enforced disappearance of Samara Penza and other Adovan citizens and for the violation of the Adova’s sovereignty?
2. Did Rotania treat Samara Penza and other Adovan citizens in a manner consistent with international law? Were they subjected to the techniques that humiliate the human dignity and constitute torture? Being a party to the 1984 Convention Against Torture and Other Cruel, Inhumane, or Degrading treatment or Punishment, did Rotania have lawful grounds to avoid it’s international obligations?

STATEMENT OF THE FACTS

In 1970, the Kingdom of Sybilla dissolved into two independent nations: the Republic of Adova (Applicant in this case), and the State of Rotania (Respondent here). The two countries are populated by two principal ethnic groups, Stovians and Litvians, which have distinct languages, religions, and cultures. About 75% of Adovans are Litvian, 10% Stovian, while Rotania is 85% Stovian, 10% Litvian. Most Litvians in Rotania have historically lived in the Upland Plateau, a geographically self-contained district making up approximately 20% of the total land area of the country.

Over the years since the nation’s independence, the Litvians of Rotania were being precluded from economic and cultural advancement by the Stovian majority. This fact is proved by data collected in 2000 that showed significant disparities in the well-being of Litvians and Stovians in Rotania. According to the data: The average annual per capita income of Litvians in Rotania was approximately €8,000, while that of Stovians was approximately €14,000; the literacy rate of Litvians (in either the Stovian or the Litvian language) was 66%, while 92% of adult Stovians are able to read and write in Stovian (the official language of Rotania); and the average life expectancies of male and female Litvians in Rotania were 52 and 58 years, respectively, while those of Stovians were 71 and 76 years.

Shortly after the dissolution of Sybilla, a movement emerged among the Litvians of the Upland Plateau calling itself the Litvian Advancement and Protection Society (LAPS). By all accounts, LAPS was created as a social and civic organization, which sponsored the study of Litvian culture and language, and supported hospitals, schools, and old-age homes to serve the Litvian population of Rotania.

The most radical wing of LAPS, the Independent Litvia Solidarity Association (ILSA), espouses the complete secession of the Upland Plateau from Rotania. Some members of ILSA support creation of an independent Litvian state; others have called for the ultimate establishment of a political and economic union of the region with the Republic of Adova.

Since 1985, the General Chairman of LAPS has been Samara Penza, a national of Adova. She has been responsible for keeping the conservative and ILSA wings of LAPS within the single umbrella organization. Some media sources report that she has “prevented the radical elements from steering LAPS in a more violent direction.” . In 2003, the Global Institute for Human Rights awarded her its highest prize, the Mandela Medal. The citation credited her with “single-handedly weaving together the various factions of the Litvian ethnic movement in Rotania into a peaceful, constructive, and positive force for change.”

In January 2006, contending that little progress was being made in achieving LAPS’s goals through the political process in Rotania, the ILSA wing of LAPS began to take more and more measures in open defiance of the government. These included the organization of workers’ strikes and protests throughout the Upland Plateau.

Beginning in February 2006, to address what the government perceived as the possibility of insurgency or additional violence, the 373^rd was given orders to make its presence far more visible. Armed troops began to appear at the employee entrances of major workplaces, including the mines, as well as at public gatherings. ILSA spokesmen maintained that “the real reason” for the heightened presence of the troops was to keep the mines open, thereby preventing any economic loss to their Stovian owners. Since 1996, the 373^rd Infantry Battalion has been commanded by Colonel Gommel Vinitsa, an ethnic Stovian.

Press reports indicate that between February and December 2006, there were six disturbances in the Upland Plateau in which members of the 373^rd discharged weapons. Depending on the various accounts, total casualties ranged between 100 and 300 ethnic Litvians killed, and between 750 and 1,200 injured. The Rotanian Government blamed saboteurs from ILSA for most of the violence, although it declines to make available the information that supports this conclusion, citing national security concerns.

On 7 January 2007, in the middle of the night, the principal Stovian Church of the Upland Plateau was set ablaze. No one was injured. Similar attacks were committed on 20 January and 10 February. None of these incidents occasioned any loss of human life.

One of the attacks committed by ILSA was in the Shrine of the seven Tabernacles, which is located in the village of Zima. During the late afternoon of 22 February 2007, a messenger delivered to the Chairman of the Committee of Elders the following message: “We urge you to ensure that no one is in or near the Shrine of the Seven Tabernacles this evening, starting at 2100 hours”. The message was not read until 8:00 p.m. on 22 February 2007. The Chairman of the Committee convened as many of its membership as he could locate, and immediately sent an urgent message to both the Ministry of Justice in Rotan and the central command of the 373^rd Infantry Battalion, seeking advice on how to proceed. When no response was received by 9:00 p.m. The Shrine was completely destroyed. On 24 February 2007, Samara Penza expressed her condolence.

On 2 March 2007, President Kirgov announced the immediate implementation of a three-point plan. First, he declared a national emergency, invoking provisions of the Protection of the State Act of 1980 (“the 1980 Act”), and nationalized the military reserves. Second, as authorized by the 1980 Act, he issued Executive Order 4932, authorizing the establishment of a special Military Commission to prosecute those responsible for the attacks in the Upland Plateau and on the Shrine. Third, he announced that the 373^rd Infantry Battalion and its commander, Colonel Vinitsa, would be empowered to take what measures it deemed necessary to apprehend the perpetrators, so long as those activities were consistent with Rotanian and international law.

The 1980 Act established rules for Military Commissions created under its auspices. Two international human rights organizations – Amnesty International and Human Rights Watch – concluded in a series of reports issued between 1985 and 1995 that trials before Military Commissions established under the 1980 Act would not meet international standards of due process of law. Rotanian governments have consistently rejected these conclusions.

Colonel Vinitsa immediately and publicly ordered the troops under his command to conduct a massive hunt for Ms. Penza and other senior members of the ILSA leadership. On 15 March 2007, Colonel Vinitsa issued the Proclamation set out in Appendix III, which was distributed and posted throughout the Upland Plateau.

For years, Rotania has maintained a military and police training facility within the territory of Merkistan, a country 750 kilometers east of Rotania. The facility, Camp Indigo, is governed by a Status of Forces Agreement (SOFA) between the two nations, amended most recently in 1990.

On 3 April 2007, Colonel Vinitsa announced at a press conference that his men had succeeded in apprehending Samara Penza, that she was being held in custody at a secret location. Colonel Vinitsa found Ms. Penza by troops under his command several weeks ago in a village 25 kilometers from the frontier, inside Adova. They transported her from there to a third state, where she was closely questioned.

The next day, on 4 April 2007, the Prime Minister of Adova held a press conference to express outrage over Rotania’s actions. The Prime Minister declared: “Rotania has violated Adova’s sovereignty by unlawfully crossing the border into our Republic and abducting civilians without any form of legal process.”

On 12 April 2007 Zoran Makar appeared at a Merkistan civilian police station near Camp Indigo. Makar reported that he had just escaped from the Camp, where he had been held for three weeks under conditions that he described as “several levels beyond Hell.” He also stated that there were at least 20 other prisoners at Camp Indigo, of whom twelve were fellow LAPS members, including Samara Penza. Makar reported that some of the detained LAPS members were Adovan citizens, some were Rotanian citizens from the Upland Plateau, and a few were nationals of other countries. Makar claimed that he, Penza, and the other eleven LAPS detainees had been stripped and kept partially clothed, were provided inadequate food and water, were subject to intermittent hanging by the wrists from chains, and were exposed to continuous bright light, uncomfortably cold cell temperatures, and loud discordant music. A few hours later, Merkistani doctors performed a medical examination and determined that Makar was malnourished and sleep-deprived and had bruises around his wrists, but that he had incurred no injuries likely to be permanent.

On 13 April 2007, six armed Merkistan policemen presented themselves at the gates of Camp Indigo shortly after sunrise and demanded to be allowed access. After some hours of negotiation, they were permitted to enter the base. They reported hearing muffled cries coming from a building identified as a storehouse. They forced their way into the building, where they found some 20 individuals, in varying states of undress, most of them appearing to be disoriented and confused. None of them spoke Merkistan, and the Merkistan officers had no interpreters. The police left the facility, announcing their intention to return later in the day to conduct a further investigation. When a full squadron of officers, with an interpreter, returned to the base at approximately 5:00 p.m., they saw no sign of the persons whom the policemen had observed in the morning.

The government of Adova sent a diplomatic note to Rotania, formally protesting the violation of its territory and the kidnapping and mistreatment of its citizens, and demanding their immediate repatriation. When Rotania declined to provide a response, the Adovan government recalled its Ambassador from Rotania and declared the Rotanian Ambassador persona non grata.

On 26 April 2007, the 373^rd Infantry Battalion transferred Ms. Penza and 14 other detainees to the custody of the Rotanian Military Commission, at the headquarters of the Rotanian Air Force in Rotan. Penza was charged with conspiracy, arson, and twenty-two counts of murder in relation to the destruction of the Shrine. She was apprised of her rights, and a military attorney was appointed to represent her. Various charges were leveled against the others, including aiding in a terrorist operation. Ms. Penza’s trial before the Commission is scheduled to begin in May 2008.

President Kirgov reaffirmed that the Government of Rotania would go forward with its proposed trials of Ms. Penza and the others, and that the trials would take place before the Military Commission according to his earlier orders. President Kirgov promoted Colonel Vinitsa to the rank of General. General Vinitsa, having reached the mandatory retirement age, retired from the military a week later.

During the night of 17 May 2007, President Kirgov, complaining of chest pains, was rushed by ambulance to the Rotan City Clinic, where he underwent triple by-pass heart surgery. Two weeks later, unable to return to his previous work schedule and under increasing political pressure, President Kirgov announced his resignation from office. Vice President Pavel Basli was promptly sworn in as the new president.

On 20 July 2007 Gommel Vinitsa, who was taken into custody by Adovan national police. The Adovan Attorney General announced that Vinitsa had been charged with offenses under Adovan statutes implementing the Torture Convention, in connection with the apprehension and treatment of Samara Penza and the other LAPS members, in his capacities both as military commander and as legal adviser to the President. He stated that the indictment of Vinitsa also named former President Kirgov as a co-conspirator, that a warrant had been issued for Kirgov’s arrest, and that he had filed a formal request with INTERPOL for an international warrant (a “Red Notice”) for the former President.

The government of Rotania immediately protested in a diplomatic note to Adova, which read in relevant part: “Adova has no legitimate basis under the Torture Convention or otherwise to exercise criminal jurisdiction over General Gommel Vinitsa or former President Michael Kirgov.

The Adovan Foreign Minister responded: “Kirgov and Vinitsa are both liable for their criminal acts committed on Adovan soil and against Adovan citizens”. The newly-elected Secretary-General issued a statement, dated 20 August 2007, reminding the two nations of their common heritage and the goodwill enjoyed by both among members of the Council. He strongly urged them to avoid the need for Council action to authorize further measures that might have significant and unintended consequences, by instead agreeing to resolve the situation peacefully by submitting their dispute to the International Court of Justice for adjudication. On 23 August 2007, Adova and Rotania agreed to do so, and a little over a month later, on this day, 28 September 2007, submitted this Compromis to the Court as a stipulation of the facts and issues to be adjudicated by the Court under its ad hoc jurisdiction. The countries agreed that Adova would appear before the Court as Applicant and Rotania as Respondent, and that both would act in accordance with the findings and conclusions of the Court.

Date: 2015-12-17; view: 547