Reference no: EM133810289

Module Fact Pattern: International Law

The Case of Jeff Smith and the Drone Attack

Jeff Smith is angry at liberals. He's angry at immigrants. He's angry at visible minorities and thinks they should go back to wherever they came from. Jeff is American, lives in Detroit, and operates a small business: a drone racing school. After a busy day teaching drone enthusiasts to pilot unmanned aerial vehicles and to send drones on small autonomous missions, he chats anonymously with white supremacists on social media about ridding North America of undesirable immigrants and progressive politicians.

One evening, Jeff writes a witty post describing a fantasy assassination of Canadian Prime Minister Justin Trudeau, a frequent target of vitriol in Jeff's online community. Jeff's post is disseminated widely. The next morning a swarm of twelve laptop-sized drones situated in Ottawa and piloted from multiple laptops in the U.S. drop small packets of explosives near Trudeau as he is biking to work. Thankfully, the packets miss the Prime Minister and fail to detonate. Canadian Department of Defence personnel down the drones with an electromagnetic weapon, disassemble them, and learn that three are controlled by a laptop owned by Jeff Smith. The attack is front page news across Canada, and Canadians are outraged.

Canada is a State Party to the ICC Treaty and has now opted in to the Kampala amendments. Canada refers the situation to the ICC prosecutor to investigate. Global Affairs Canada provides the ICC prosecutor with the anonymous anti-Trudeau social media posts they attribute to Jeff and with evidence that a laptop owned by Jeff controlled three of the captured drones.

Questions

1. Which is a potentially successful basis for defending Jeff at the ICC?

a) Jeff was just following orders

b) Jeff was not a person in a position effectively to exercise control over or to direct the political or military action of a State

c) Jeff was undertaking a legitimate humanitarian intervention

d) Jeff's intention was to defend his country, not commit aggression

2. If Jeff Smith claims self-defence against an imminent attack from Canada, why is his argument unlikely to succeed?

a) Because there was no evidence of an actual armed attack on the U.S. from Canada

b) Because self-defence cannot exculpate a political or military leader for the crime of aggression

c) Because a defender cannot enter a foreign state to defend itself

d) Because Jeff was not authorized by the U.N. to use force in self-defence

3. Jeff claims that the attack does not amount to the crime of aggression because it did not surpass the de minimis threshold in the definition of the crime. Which of the following factors would the ICC judges NOT consider when assessing whether the attack surpassed the de minimus threshold?

a) Gravity

b) Public outrage

c) Character

d) Scale

4. Identify any or all potential defences for Jeff from the below options:

a) Another individual, not Jeff, was operating the drones from Jeff's computer

b) Jeff's computer was hacked and the attack on Trudeau was launched by the hacker

c) The attack never materialized so there was no crime of aggression

d) A, B and C are all potential defences for Jeff

5. Under what circumstances would an armed attack on Canada from the U.S. be justified?

a) If U.S. officials had credible evidence of an insurgent group within Canada trying to devise a future attack on the U.S. homeland

b) If Canada had attacked the U.S. and the U.S. was using necessary and proportional force to repel the attack

c) If the U.N. Security Council authorized the use of all necessary means within Canada under Chapter VII of the U.N. Charter to restore peace

d) B and C are both legitimate legal justifications for the use of force by the U.S. in Canada

6. Choose one (1) of the following short answer questions and answer it in five hundred words or less.

A. Did you agree with the judgement in your International Law ALS simulation exercise? Explain why or why not, and provide appropriate legal references from the International Law materials.

OR

B. How would you decide this case if you were an International Criminal Court Judge? Support your answer with appropriate legal references from the International Law materials.