2.

According to the international standard of care doctrine, while states have no

obligation to admit aliens to their territory, once they do so, they must treat them in a
civilized manner. What are the acts would constitute an international crime if
committed by a state?

What is International Standard of Care doctrine?

International minimum standard:

In the case of L.Fay H. Neer and Pauline Neer (USA) V. United Mexican States
(1926)(International Arbitration) Paul Neer, the deceased was on his way home with his
wife, L.Fay H. Neer. When they were on their way back, they were stopped by a group of
armed men, they had killed the deceased but the wife had managed to escape. The
government of the United State of America had later taken action against the government
of the United Mexican States on the ground that their inaction to prosecute the perpetrator
was a denial of justice which violates the international obligation.

To determine whether there had been any international obligation, the commission had first
reviewed the international standard of care which was warranted to aliens, as such standard
would have incurred obligation. In this case, the commission had delivered that for what is
international standard that is warranted to aliens is a standard that every reasonable and
impartial man would recognise.

(Pauline is the daughter of paul)

(“the treatment of an alien, in order to constitute an international delinquency, should

amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of
governmental action so far short of international standards that every reasonable and
impartial man would readily recognize its insufficiency.”)(pg61-62)

In reaching its conclusion, the commission had determined that there had been no violation
of international obligation because records had shown that on the night the deceased was
killed, the local authorities of United Mexican States had visited the scene and examined
the corpse of the deceased.

In the case of Harry Roberts (U.S.A.) v United Mexican States (1926)(International

Arbitration), the government of the United States of America had taken action against the
government of the United Mexican States on behalf of an American citizen, Harry Roberts.
The reason of this action, as per claimed by United States of America was that Harry Roberts
was detained by the United Mexican State authorities for an unreasonable period of time
and had subjected him to cruel and inhumane treatment throughout the confinement. Harry
Robert in this case had been suspected of committing an offence of assault against a house
of the local, as he did not deny that he was at the scene while the assault was committed.
Because of that, Harry Robert had been detained for a period of nineteen months without
trial and subjected to ill-treatment during his confinement at the prison.
The tribunal in this case had revisited the international standard that is afforded to the alien
and had concluded that the international standard that is warranted against the alien is the
standard that is in accordance with the ordinary standards of civilisation.

In concluding its finding, the tribunal had held that the United Mexican States had breached
its international obligation for its failure to abide to the international standards that is
accorded by a civilised nation, as it had detained the victim for an unreasonably long period
of time without just explanation and the ill-treatment during the imprisonment, despite the
claim that the same treatment was so given against the nationals.

(The judgement on standard is found on pg 80 of the report)

(Prolonged detention: The Mexican Constitution of 1917, provides by its Article 20, section
8, that a person accused of crime "must be judged within four months if he is accused of a
crime the maximum penalty for which may not exceed two years' imprisonment, and within
one year if the maximum penalty is greater.")

(Ill treatment of the confinement: absence of furniture, no facility to clean himself, no

opportunity to exercise, unclean food and limited space as 30-40 prisoners were placed in
one room)

What are the acts that constitutes an international crime?

Article 2 of the Responsibility of States for Internationally Wrongful Acts, states that
an international wrongful act of a state shall be established when: a) the action or omission
is attributable to the State that is under international law and; b) the action or omission
constitutes a breach of an international obligation of state
Article 12 of the Responsibility of States for Internationally Wrongful Acts, states that
a breach of international obligation takes place when the actions of the State does not
comply with the obligation required, regardless of its origin or character.

In reference to the Text Of Articles Adopted In First Reading By The Third Committee
Of The Conference For The Codification Of International Law (The Hague, 1930), the
expression " international obligations" may include obligations resulting from treaty,
customary international law or the general principles of law

(The aforementioned adopted articles were made during the Codification Conference which
met at The Hague from 13 March to 12 April 1930)( Yearbook ... 1956, vol. II, p. 225,
document A/CN.4/96, annex 3, article 1 , p225)

(This committee was an intergovernmental effort to promote the codification and

development of international law in line with the resolution of the Assembly of the League
of Nations of 22 September 1924, envisaging the creation of a standing organ called the
Committee of Experts for the Progressive Codification of International Law)

Treaties:

Given that to what amount to an international obligation, it is evidently clear that every
instance of abuse against the treaties which have been so established nations, is indisputable
an international wrongful act.
To illustrate this, reference shall be made to the following case, though it has not be brought
before the international court, however, this writer would prefer to allude to this case to
better showcase a clear example of violation against treaty which amounts to an
international wrongful act.

United States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran)(1979)(International Court of Justice)

In this case, the United States of America government had submitted an action against the
government of Iran for the immediate restoration of its diplomatic and consular stuff in the
US Embassy located in Tehran which was occupied and held hostages by the Iranian
militant. (This incident took place on 4th November 1979). The International Court of Justice
had later ordered the Iranian government to immediately release the hostages and concluded
that the Iranian government had committed an international wrongful act based on treaties
in force and general international law.

The treaties in force that the court is referred to is the Vienna Convention of Diplomatic
Relations 1961:

Under Article 25 of the Convention, it is required to "accord full facilities for the
performance of the functions of the mission"; Under Article 26 of the Convention, to
"ensure to al1 members of the mission freedom of movement and travel in its territory";
Under Article 27 of the Convention, to "permit and protect free communication on the part
of the mission for al1 official purposes".

Principle highlighted (page 29, para 56 of the ICJ report)

“First, it must determine how far, legally, the acts in question may be regarded as im-
putable to the Iranian State. Secondly, it must consider their compatibility or incompatibility
with the obligations of Iran under treaties in force or under any other rules of international
law that may be applicable.”

In the case Montoya v Scott (United States Court of Appeals for the Fifth Circuit)(1995),
the appellant was sentenced to death in 1986 when he was only 18 years old. The appellant
was charged and convicted for a charge of accessory to murder (Malaysia stance would be:
___). The appellant was detained for a long police interrogation without the presence of an
attorney and he had been asked to sign a four pages of confession page in English in which
it was a language that he did not speak, read nor understand.

The action of the United States was a clear, blatant violation of Article 36 of the Vienna
Convention on Consular Relations 1963, which stipulates on the consular rights that the
national of a sending state who is arrested is entitled to, for instance right over legal
arrangements, right to be visited and rights to communicate.

Mexican Government officials argued in earlier diplomatic protests to Washington that Mr.
Tristan's arrest violated a provision of the Vienna Convention because the Texas police
failed to inform him of his right to contact Mexican officials for legal help.

Customary international law:

In accordance to the International Committee of the Red Cross, customary international
law is a body of rules that is accepted as the general practice accepted as law.

Article 33 of the Convention and Protocol Relating to the Status of Refugees states that no
Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers
of territories where his life or freedom would be threatened on account of his race, religion,
nationality, member-ship of a particular social group or political opinion.

The International Institute of Humanitarian Law together with the United Nations
High Commissioner for Refugees, had declared in 2001 that the principle of
refoulement is now part of the customary international law. (Sanremo Declaration on the
Principle of Non-Refoulement)

(The principle of non-refoulement of refugees can be regarded as embodied in customary

international law on the basis of the general practice of States supported by a strong opinio
juris.)

To illustrate this, this writer wishes to make a reported incident that took place in Malaysia
to exemplify the conducts which could possibly be considered as an international wrongful
act which violates the customary international law.

In accordance to a reported press release issued by the United Nations and United Nations
High Commissioner for Refugees on October 2022, reports have shown that there have been
a deportation of Myanmar refugees (mainly concerned the Rohingya) by the Malaysian
authority back to Myanmar, whereby such an action was clearly in violation of the principle
of non-refoulment as the action to flee the refugees back would have exposed them to greater
human rights violation such as torture, arbitrary detention and even homicide.

(https://news.un.org/en/story/2022/10/1129842; https://www.unhcr.org/my/news/briefing-
notes/unhcr-deplores-continued-deportation-myanmar-asylum-seekers-malaysia)

Crimes against humanity:

Other than actions which violates the international treaty and customary international law
would amount to an international wrongful act, an international crime; an action committed
by a state would instantly become an international crime if it is a crime that is so grievous
which makes it absolutely an international crime per se, an example of this international
grievous crime may include crimes against humanity.

Article 7 of the Rome Statute on the International Criminal Court states that crimes
against humanity are widespread or systematic attack that are committed against any civilian
population, which may consists actions include but does not limit to torture, rape and sexual
violence.

In the case of The Prosecutor v. Anto Furundžija (International Criminal Tribunal for the
former Yugoslavia (ICTY) Appeals Chamber)(Netherlands)(2000), Anto Furundzija was a
special commander of a special unit of the Crotian Defence Council, during the war to fight
of territories over Bosnia and Herzegovina in the Former Yugoslavia. Anto Furundzija was
accused of crimes against humanity during his interrogation against women in the region of
Nadioci, Bosnia and Herzegovina in May 1993, as he had perpetrated actions of torture,
sexual assault and rape. The tribunal and found the accused guilty of all the alleged offence
and sentenced with a 10 years imprisonment.

(In this case, the tribunal had noted that the prohibition of torture is an absolute value from
which nobody must deviate.)

(Furundžija captured and interrogated women with the intention to obtain information
which he believed would benefit the Crotia Defence Council.)

(Article 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia
states that a person is responsible for crimes against humanity, in an armed conflict, be it
international or internal, if an action of the following is directed against any civilian
population, which may include: f)torture; g) rape and i) other inhumane acts)

(Within the republic of Bosnia and Herzegovina, there were three main ethnicity which were
the Bosniak muslims, Bosnian serbs and Bosnian Croats. On March 1992, in a referendum
voted by more than 60 percent of Bosnian citizens opted for independence. Almost
immediately, in April 1992, Bosnian Serbs rebelled with the support of the Yugoslav
People’s Army and Serbia, declaring the territories under their control to be a Serb republic
in Bosnia and Herzegovina. Bosnian Croats soon followed, rejecting the authority of the
Bosnian Government and declaring their own republic with the backing of Croatia. The
conflict turned into a bloody three-sided fight for territories.)

(The Crotian Defence Council was the initiative by the Bosnian Croats)

Sources:

(https://www.refworld.org/cases,ICTY,40276a8a4.html;https://casebook.icrc.org/a_to_z/gl
ossary/crimes-against-humanity; https://www.icty.org/en/about/what-former-
yugoslavia/conflicts#:~:text=At%20the%20beginning%20of%20the,%2C%20Montenegro
%2C%20Serbia%20and%20Slovenia.)

Genocide:

In addition to the crimes against humanity, grievous action such as genocide would also be
considered as an act of international crime, when committed by a state.

Article 3 of the Universal Declaration of Human Rights states that, everyone has the right
to life, liberty and security of person.

In accordance with Article II of the Convention on the Prevention and Punishment of

the Crime of Genocide, genocide means actions committed with the intent to destroy, in
whole or in part, a national, ethical, racial or religious group, with the following acts:

a) Killing of the members of the group;

b) Causing serious bodily or mental harm to the members of the group;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
d) Imposing measures intended to prevent births within the group

e) Forcibly transferring children of the group to another group.

In the case of Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatia v. Serbia) (International Court of Justice)(2008), the
government of Croatia had taken action against the government of Serbia on an alleged
conduct of genocide conducted by the Serbian forces when they had took control over one-
third of the Croatia’s territory in 1991 when Croatia had declared independence. The
incident took place was that soon after the Croatia had declared independence, the ethnic
Serbian had opposed to the independence and with the support of other paramilitary troops,
an armed conflicts took place between the Serbian forces and the Croatia forces which led
to the occupation of territory. It was alleged that during that period of occupation (1991-
1995), genocide took place between the parties. The International Court of Justice, in
arriving at its judgement had noted that to constitute an act of genocide, the actus reus
(physical act) and the mens rea (the intention to destroy such a group) had to be both
evidenced to establish genocide. In delivering its judgement, the International Court of
Justice concluded that the claim made against Serbia on the alleged act of genocide cannot
be established, because even though there had been physical act perpetuated against the
ethnic Croatians, however such act was not intended to destroy the ethnical group but to
displace the ethnic Croatians by force over the territory.