DEVELOPMENTS IN PUBLIC INTERNATIONAL LAW
By: Atty. Edwin Sandoval (1) An individual person as subject of international law
Subject of international law defined
- an entity which has an international personality
- an entity has an international personality if it has rights which may be directly enforced or it has obligations for which it may be held directly accountable under international law.
☻an entity although it has rights, but which can be enforced only through another medium is not a subject. It is merely an object.
* Two views:
a.) Traditional view – only states are subject of international law.
- only states have rights which may be directly enforced or have obligation for which it may be held directly accountable under international law.
b.) Modern view – not only states are proper subjects of international law.
- international organizations (ie. United Nations) are also proper subjects of international law.
- to a limited extent, the individual is now considered as proper subject of international law.
Govt. of HK special administrative region (represented by Phil. DOJ) vs. Hon. Olalia
- the modern trend in public international law is the primacy place on the worth of the individual person and the sanctity of human rights.
- slowly, the recognition that the individual person may properly be a subject of international law is taking root.
- the vulnerable doctrine that the subject of international law are limited only to states was dramatically eroded towards the second half of the past century.
- for one, the Nurumberg and Tokyo trials after WWII resulted in the unprecedented spectacle of individual defendants prosecuted for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity.
- recently, under the Nurumberg principle, Serbian leaders have been prosecuted for war crimes and crimes against humanity committed in the former Yugoslavia.
- these significant events show that the individual person is now a valid subject of international law.
☻ when the individuals were held directly accountable for their crimes, he is no longer regarded as a mere object of international law, he has become a subject of international law.
☻ the justification for assumption of jurisdiction over the individual is that crimes against international law are committed by men and not by abstract entities. It is only by punishing individuals who commit such crimes can the provisions of international law be enforced.
☻ another instance when an individual is regarded as subjects of international law is in case of human rights violations.
- more often, an individual‘s human rights is violated by his own government such that he cannot have a recourse against his own government.
- he may have recourse to the international human rights body.
(2) Creation/establishment of International Criminal Court
* ICC vs. ICJ
ICJ ICC
- was created pursuant to the - was created by a separate treaty
charter of the UN itself. known as the Rome statute.
- it is the principal judicial organ of the UN.
- it is a separate body.
- only states may be parties to disputes in international court of justice.
- international criminal court will try persons/individuals, not states, who commit the most serious crimes of international concern.
* Jurisdiction of the International Criminal Court over the following offenses:
a.) genocide
b.) crimes against humanity c.) war crimes
d.) crimes of aggression
☻ common characteristics of the four – they are the most serious crimes of international concern.
☻ terrorism is not included.
Genocide – the deliberate destruction or annihilation of a racial,
ethnic or religious group.
Ex. Holocaust during the WWII – deliberate policy of Hitler to eliminate all the jews in the world.
* Organization of International Criminal Court - 18 judges
- subject to increase in number by authority of Article 36 of its statute
- organized into: a) appeal division – president and four other judges
b) trial division – three judges c) pre-trial division – three judges
- the judicial functions are carried out by judges in chambers
- the workload of the court may require more than one trial chamber or pre-trial chamber
- judges of Appeals chamber shall serve only in that division
- other organs of the court: a) presidency
b) office of the prosecutor c) registry (office of clerk of court)
Principle of Complementarity
- the international criminal court shall be complementary to national criminal jurisdiction.
- this gives primacy to national jurisdiction. If the national court has already assumed jurisdiction, icc can no longer assume jurisdiction.
- unless, the proceeding in the national court is:
a) for the purpose of shielding the person concerned from liability; or b) not conducted independently or impartially.
(3) International Human Rights Human Rights
- those liberties, immunities, and benefits which all human beings should be able to claim ―as of right‖ of the society in which they live by accepted
contemporary values.
- those fundamental and inalienable rights which are
essential for life as a human being.
- pertain to rights of an individual as a human being which are recognized by the international community as a whole through their protection and promotion under contemporary international law.
International Law on Human Rights
- the law which deals with the protection of individuals and groups against violations by government of their internationally guaranteed rights, and with the promotion of these rights.
* Classification of Human Rights/ Three Generation of Human Rights:
a.) 1st generation of human rights – consisting of civil and political rights b.) 2nd generation of human rights – consisting of economic, social and
cultural rights.
c.) 3rd generation of human rights – consisting of right to development, right to peace and right to environment.
* Human rights are either:
a) individual
b) collective – right to self determination of people; the
permanent sovereignty over natural
resources.
International Bill of Rights
- the term used to designate the three main instrument of human rights in the international plane, which are:
a) the universal declaration of human rights b) the international covenant on economic, social
& cultural rights
c) the international covenant on civil & political rights
☻ Recognition and importance given to Human Rights by international organizations and states
- on December 10, 1948, the UN General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all other fundamental rights of every person were proclaimed.
- while not a treaty, the principles contained in the said declaration are now recognized as customarily binding upon the members of the international community.
* Sources of International Law:
1) Primary
a) treaties or international conventions b) international custom
c) general principles of law recognized by civilized nations
2) Secondary
d) judicial decisions
e) teachings of authoritative publicists of various nations.
☻ Universal Declaration of Human Rights, while not a treaty, has evolved as an international custom, a primary source of international law.
☻ The Philippines commitment to uphold the fundamental human rights as well as the worth and dignity of every person
- commitment is enshrined in Section 2, Article II of our Constitution.
- it provides: ―The state values the dignity of every human
person and guarantees full respect for human
rights.‖
- The Philippines has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to
enable it to decide without delay or the legality of the detention and
order their release.
Govt. of HK special administrative region (represented by Phil. DOJ) vs. Hon. Olalia
- the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty.
- these remedies include the right to be admitted to bail
- while this court in the Purganan case, limited the exercise of the right to bail to criminal proceedings, however, in the light of various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a re-examination of this Court‘s ruling in the Purganan case is in order.
(4) International Humanitarian Law (IHL)
- used to be called laws of war/ laws of armed conflict (which may refer to both international armed conflict and internal armed conflict)
- that branch of public international law which governs armed conflict to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting persons who do not or no longer participate in hostilities.
* Three Grand Divisions of International Law:
a) Laws of Peace – govern relations between and among nations under normal circumstances.
b) Laws of War – govern relations between and among belligerent states (states at war) during wartime.
c) Laws of Neutrality – govern the relations of third states not parties to the war with any of the belligerent states. (but the relations of third parties inter se shall still be governed by the laws of peace)
* Principal legal documents are:
1.) Geneva Convention of 1949 – define fundamental rights for combatants removed from the fighting due to injury, illness or capture and for civilians.
a) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field of August 12, 1949
- first Geneva convention
- applies to armed forces in the field (land) b) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of Aug 12, 1949
- second Geneva convention
- applies to armed forces ate sea (navy)
c) Geneva Convention Relative to the Treatment of
Prisoners of War of August 12, 1949
- third Geneva convention - deals with prisoners of war
d) Geneva Convention to the Protection of the Civilian Person in time of war of August 12, 1949
- fourth Geneva convention - applies to civilians
2.) 1977 Additional Protocols – supplement the Geneva convention
a) Protocol Additional to Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflicts
- Protocol I of June 8, 1977
b) Protocol Additional to Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of
Non-International Armed Conflicts
- Protocol II of June 8, 1977
☻ IHL encompasses both humanitarian principles and international treaties that seek to save lives and alleviate suffering of combatants and non-combatants during armed conflict. It is not concerned with the lawfulness or unlawfulness of armed conflicts.
* International Humanitarian Law vs. Human Rights Law
IHL HRL
- applies in situations of armed conflict
- protects individuals at all times (in war and peace alike)
- no derogation from certain rights are permitted because it was conceived for emergency situations namely armed conflict
- may permit of some derogation from certain rights in situations of public emergency
- aims to protect people who do not or are no longer taking part in hostilities
☻ the rules embodied in IHL impose duties on all parties to a conflict
- tailored primarily for peace time;
apply to everyone
☻ their principal goal is to protect individuals from arbitrary behavior by their own government;
☻ HRL does not deal with conduct of hostilities.
- provides for specific mechanisms that help its implementation
- human rights in implementing mechanisms are complex and includes regional systems.
* Basic Rules of IHL:
(1.) Attacks must be limited to combatants and military targets
Combatants – persons taking direct part in hostilities or
members of the armed forces.
Military targets – combatants and objects which by their nature, location, purpose or use make an effective contribution to military action and whose destruction offers a definite military advantage.
☻ Civilians shall not be attacked!
☻ In case of doubt, a person shall be considered a civilian.
* Four Categories of Combatants:
a) Regular Forces – members of the armed forces except medical personnel and chaplain.
b) Irregular Forces – consists of the guerilla and the militia - they are treated as lawful combatants, provided:
i) they must be under the command of an officer responsible for the conduct of his men.
ii) they wear uniforms or insignia recognizable from a distance.
iii) they carry arms openly.
iv) they observe the laws and customs of war in the conduct of their hostilities.
c) Levee En Masse – civilians of an unoccupied territories who
upon approach of the enemy forces and
without having time to organize,
spontaneously take up arms to resist the invading forces.
- once captured, they are considered as combatants (not
civilians) and will be treated as a prisoner of war.
d) Officers and Crew of Merchant marine vessels who forcibly resist attack – once captured, they are considered as combatants
and will be treated as prisoners of war.
Non-Privileged Combatants – although they have rights (limited/minimal), when captured, are not entitled to be treated as
prisoners of war.
- they do not form part of the regular or irregular forces but actually takes part directly or indirectly in the hostilities as:
a) spies
b) mercenaries – ―soldiers for a fee‖/ soldiers of fortune
☻ A soldier, not wearing uniform during hostilities, runs the risk of being treated as a spy; thus, not to be treated as a prisoner of war.
BAR 1993: Reden, Jolan and Andy, Filipino tourists, were in Bosnia-Herzegovina when hostilities erupted between the Serbs and the Moslems. Penniless and caught in the crossfire, Reden, Jolan and Andy, being retired generals, offered their services to the Moslems for a handsome salary, which offer was accepted. When the Serbian National Guard approached Sarajero, the Moslem civilian population spontaneously took up arms to resist the invading troops. Not finding time to organize, the Moslems wore armbands to identify themselves, vowing to observe the laws and customs of war. The three Filipinos
fought side by side with the Moslems. The Serbs prevailed resulting in the capture of Reden, Jolan and Andy, and part of the civilian fighting force.
1) Are Reden, Jolan and Andy considered combatants thus entitled to treatment as prisoners of war?
NO. Reden, Jolan and Andy are not combatants because they are mercenaries. They offered their services to the Moslems for a handsome salary. They are soldiers of fortune. They are not members of the armed forces but took part in the hostilities. They are non-privileged combatants and are not entitled to treatment as prisoners of war.
2) Are the captured civilians likewise prisoners of war?
YES. The captured civilians are prisoners of war. They fall under the category of levee en masse. When the Serbian National Guard approached Sarjero, the Moslem civilian population spontaneously took up arms and resist the invading troops without having time to
organize. The Moslems wore armbands to identify themselves, vowing to observe the laws and customs of war.
☻ Civilian objects may not be attacked.
-using civilians to shield military targets is prohibited - it is prohibited for combatants to pose as civilians - starvation of civilians as a method of combat is prohibited - it is prohibited to attack objects that are indispensable to
the survival of civilian population
- it is prohibited to attack dams, dykes, nuclear power plants, if such attack may cause severe losses among the civilian population.
(2.) Attacks or weapons which indiscriminately strike civilian and military objects and persons. And which cause excessive injury or suffering are prohibited.
☻ Specific weapons are prohibited.
- it is prohibited to order or threaten that there
shall be no survivors. (No
Quarter’s Order – ―take no prisoners, kill all‖)
(3) Civilians, wounded combatants and prisoners should be spared , protected and treated humanely.
Hors De Combat – literally means ―out of combat‖
- disabled soldiers
(4) Military and civilian medical personnel and facilities (hospitals, clinics, ambulances, etc.) must be respected and protected and must be granted all available help for the performances of their duties.
* Concept of Belligerency
- may be understood in two senses:
a) state of war between two or more states
- the states at war are referred to as ―belligerent states‖ or simply
―belligerents‖
- refers to international armed conflict (in this sense)
b) actual hostilities amounting to a civil war within a state - there is just one single state here
- refers to non-international armed conflict or simply internal armed conflict
☻ In both instances, IHL applies.
☻ Belligerency in the sense of actual hostilities amounting to a civil war within a state presupposes the existence of rebel movement within a state.
* Stages of Development of a Rebel Movement within a State 1) Stage of Insurgency - earlier stage/ less developed stage - there is not much international complication as it is purely a matter of
municipal law.
2) Stage of Belligerancy - higher stage of rebellion, when rebellion develops and becomes widespread
- already a matter of international law as there are now international implications.
- when the rebels attain the higher stage, in effect, you are admitting that within a single state, there are now two competing governments – legitimate government and rebel government.
- conduct of hostilities should now be governed by the laws and customs of war
- IHL will come into play
- captured rebels are considered combatants and must be treated as prisoners of war (they have rights)
- third states are to observe strict neutrality in their dealings either with the rebel government or legitimate government
☻ Non-observance of IHL could lead to sanctions.
* Minimum Conditions Before Rebels may Attain the Status of Belligerency
1) if the rebels were able to organize a civil government that shall have control and direction over the armed struggle they are wagering against the legitimate government.
2) if the rebels were able to occupy a substantial portion of the national territory.
- occupation must be more or less permanent, such that to be able to dislodge the rebels, the legitimate the government must use superior force 3) seriousness of the struggle, such that it must be so widespread thereby leaving no doubt as to its possible outcome
4) if the rebels were able to observe the laws and customs of war - willingness on their part to observe
* Two Functions of the Government:
1) Constituent – constitute the very bends of society Ex. Administration of justice
Maintenance of peace and order
Fixing the relations between husband and wife\
2) Ministrant
☻ IHL will not apply to international conflict but also to non-international conflict.
(5.) The Law on Treaties
Jus Cogens Norm
- a peremptory norm of general international law
- a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
- recognized in the Vienna Convention on the law of treaties as a ground for invalidity and termination of treaties when they are in conflict with such norms.
☻ peremptory means mandatory.
* Examples of norms considered as jus cogens in character a) the prohibition against the use of force under the UN charter b) the law on genocide
c) the principle of self determination d) crimes against humanity
e) prohibition against slavery and slave trade f) piracy
☻ A treaty entered into by two states agreeing to invade another state would have to be invalidated as it runs in conflict with a jus cogens norm – the prohibition against the use of force under the UN charter.
Obligation Erga Omnes
- it is an obligation of every state towards the international community as a whole.
☻ All states have a legal interest for its compliance, and thus all states are entitled to invoke responsibility for breach of such an obligation.
* Examples of obligations erga omnes - outlawing acts of aggression - outlawing acts of genocide