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International humanitarian law

ISIS and International Humanitarian Law

The terrorist group Islamic State of Iraq and Syria (ISIS) presents complicated issues of classification under International Humanitarian Law (IHL).

IHL is the law specifically applicable in times of armed conflict. It seeks to insulate non-combatants such as civilians from all adverse consequences of armed conflicts. It does this by providing non-combatants protection—that is, they should not be targeted—and by limiting the means and methods of warfare. Specifically, it requires all fighters and combatants to distinguish between valid targets and those with protection, and limits targets as those whose destruction will contribute to the military objective: the complete subjugation of the enemy with minimal collateral damage.

Because IHL is a lex specialis, it cannot apply unless there is in fact an armed conflict, which is sufficiently intense and sustained over a period of time. If there is such a conflict, the type of conflict, be it international or internal, will then determine what the applicable law is. International armed conflicts, or those between states or a state and a group engaged in a war of national liberation, is governed by human rights law, the Geneva and Hague Conventions and by common article three. Internal armed conflicts, on the other hand, are conflicts between a state and an armed group that controls territory, has a military hierarchy, and ha shown itself capable of complying with IHL.

It is the issue of whether ISIS is engaged in an international or internal armed conflict that is controversial. Depending on what type of a conflict it is engaged in, fighters, in turn, would have right of combatants or simply be treated as detainees. This is because the status of a combatant, which among others, leads to the protected status of a prisoner of war, only exists in international armed conflicts. Likewise, immunity arising from one’s participation in an armed conflict exists only in international armed conflicts.

The source of the controversy is because while ISIS is not a state, although its insane members say it is, it nonetheless operates across national boundaries making the armed conflict apparently international. But the requirement of IHL is not that the conflict must cross boundary lines. It is that it be fought by states or by a state and a group engaged in a war of national liberation. ISIS, with its penchant for beheadings of innocent civilians, including journalists, cannot be said to be engaged in a war of national liberation against a colonial or racist regime.

On the other hand, ISIS, while more apt to be engaged in an internal armed conflict since it has territory and apparently a military command, has shown itself incapable of complying with the rules and customs of warfare. Again, its penchant for beheadings is proof of this. Moreover, the armed struggle is directed not just against a state; it is against at least two—Iraq and Syria. Strictly speaking, their barbaric acts appear to be directed against the entire civilized world.

Fortunately or not, the US involvement against ISIS in the form of targeted air strikes has resolved the problem of characterization. Under IHL, the use of air strikes will undoubtedly qualify the application of IHL. Moreover the fact that the US is now using its armed forces against the terrorist group has made the conflict an international armed conflict because regular armed forces of a state is now utilized in a foreign territory.

The issue today has thus gone beyond what conflict the ISIS can pose. Instead, we are now engaged in a debate on whether the air strikes are legal under international law. Ironically, the most unlikely leader has triggered the debate: the Pope himself.

Pope Francis has been vocal against the unilateral use of force even against the ISIS. This is surprising if only because the ISIS has openly declared war against all Christians. He has been arguing that instead of unilateral use of force the UN community, through the Security Council, should authorize the use of force against the terrorist group. I find myself sympathetic to the Pope’s cause. Imperfect as the UN Charter maybe, the type of limited peace that we have achieved since World War II has been anchored on our adherence to the prohibition on the use of force. If we deviate from this established norm, we open ourselves to the possibility of resort to further unilateral force, which will shatter our temporary peace.

In any case, jus in bello is distinct from jus ad bellum. Regardless of the legality of the use of force, IHL, because it is applicable, will apply. This means that individuals behind ISIS, regardless of where they may be found, will be prosecuted for war crimes. Let this be fair warning to the loonies who are toying with the idea of supporting this terrorist group.

Lessons from Boston

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Lessons from Boston.

Copadoccia, Turkey—I was in Boston with my family just two weeks ago. I thought it was important for my two children to visit the city and appreciate its anti-colonial heritage. The US was not always its own state. It too had to struggle for its independence, much in the same way that we did against the Spaniards and ironically, against them.

Like many tourists, we did the freedom trail, so-called because it allows visitors to visit historical landmarks of the American Revolution. This includes the house of Paul Revere who warned the

American militias of the upcoming invasion of the British, as well as Faneuil Hall, which was literally a meeting place where speakers like Samuel Adams and James Otis advocated freedom from Great Britain. It also includes a recreated colonial vessel where the tea party is reenacted to remind the American youth of today of the trigger that established an independent American state.

While it was unfortunate that after triggering a liberal tradition that is today acknowledged as the non-derogable right to self-determination— a people’s right to choose their political status which includes the right to be independent —the American people would later be colonials themselves albeit over only colony, the Philippines. But this sad fact notwithstanding, Boston’s contribution

to modern-day democracy cannot be denied. It also includes a written constitution, which guarantees rights of every human being as being inalienable.

This must have been why the deranged madmen behind the bombings at the Boston marathon targeted the city. Their goal was not only to inflict panic in the mind of the general public but also to send the grim message that America’s cradle of democracy is under attack.

It is gratifying though that on my last day in the United States, the general impression was that Boston was not a city to be cowed. After the dead have been mourned and after the sick have been attended to, the city seems to be up and about eagerly picking up the pieces. The message that the brave survivors of this terroristic attack were sending the world was that while they were terrified, they will rise again. And that appears to be what they have done.

Terrorism, of course, be it in Boston, in Syria, or in Palestine should be condemned in the strongest manner possible. Even in times of war, civilians are accorded protection precisely because the civilian populations ought to be spared from the adverse consequences of all kinds of warfare. This is why any act that tends to spread fear or panic in the mind of the public is condemned, much in the same way that targeting civilians is made criminal in times of armed conflict.

Human beings possess rights that are inalienable. Parts of these are the non-derogable right to life and the right to personal security. Both war crimes and terroristic acts infringe on and violate these rights.

Be that as it may, there are important lessons to be learned from the Boston bombings. Primary among these is the importance of a police force that can actually investigate acts of terrorism and apprehend their suspected perpetrators. It did not take long for the Boston police to process forensics evidence, identity the suspects and actually apprehend them. In the Philippines, our police agents’, until very recently, are told to identify first the suspects before processing the evidence. And while in Boston, it was physical evidence that proved effective in identifying the perpetrators of the crime; in our country, the police, either because of lack of capacity or downright laziness, will rely almost wholly on testimonial evidence. The problem with this approach is that testimonial evidence is either cheap, or may be the result of police short-cuts, such as torture.

How we envy the people of Boston. In less than a week, the perpetrators of the bombings were identified and apprehended, although one of them was killed in the process. In the Philippines, a student of mine, who is now a lawyer, is still awaiting for someone to be charged for the brutal murder of her father, a UP graduate editor and publisher of a local paper in Pagadian City. Her late father and her mother, also murdered some nine years after her father, will both be unable to attend her oath-taking as a lawyer. Likewise, the family of Navy Ensign Philip Pestano is still awaiting action form the Department of Justice in connection with the murder of their son.

Likewise, the Barrameda and the Ortega families can only dream of justice for the death of their loved ones. And let’s not even talk about the victims of the Maguindanao massacre, many of whom have already sunk into despair.

So the lesson is clear: terrorism and lawlessness can strike anywhere. But in civilized societies, the pillars of the criminal justice system: the police, the prosecutors, the courts, and the community-

will ensure that lawless elements will be investigated, prosecuted and punished for their acts.

I wonder when we will finally have a civilized Philippine society.

Centerlaw Submits Korean Supreme Court Decision on Comfort Women to Philippine Supreme Court

The Center for International Law (Centerlaw) asked the Supreme Court today to consider an August 30, 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial case of Filipino Comfort Women –otherwise known as the Malaya Lolas case – still pending before it.The Korean case arose from a suit filed by Korean Comfort Women before the South Korean Constitutional Court against their own Minister of Foreign Affairs. In their suit, they questioned the refusal of the government to settle the issue of whether or not there is still liability on the part of the government of Japan for the atrocities committed by its soldiers during World War II against them. The Korean Court granted the Petition of the Comfort Women and ordered that its government settle the issue with the government of Japan.

In its decision, the Korean Court stated that blocking the payment of claims is directly related to the “infringement of fundamental dignity and value of human beings”. It further found that possibility of strained relations and problems with diplomatic ties is no excuse as it will be more constructive for both Korea-Japan diplomatic ties and Korea’s national interest to call on the Japanese government to take on its legal responsibility toward the victims.

It would be remembered that on April 28, 2010, the Philippine Supreme Court rendered judgment on the petition before it asking the Court to compel the Philippine government to espouse the claim of Filipina Comfort Women against the government of Japan ( Vinuya v. The Hon. Executive Secretary, G.R. No. 162230, April 28, 2010).

The suit stemmed from a petition filed in 2004 by 70 members of the Malaya Lolas Organization (Malaya Lolas), who survived the Mapanique, Tarlac siege by the Japanese Imperial Army. In their petition, they charged that were victims of systematic rape and sexual slavery committed by the Japanese, and asked the High Court to compel the government to espouse their claims against Japan.

The Philippine Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism – which is a word for word lifting of pages from the three articles without the proper attribution – it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War Two have no further legal remedies.

All three plagiarized articles by foreign authors –an article published in 2009 in the Yale Law Journal of International Law, a book published by the Cambridge University Press in 2005, and, an article published in 2006 in the Western Reserve Journal of International Law – argue otherwise.

A Motion for Reconsideration and a Supplemental Motion for Reconsideration subsequently filed by the Center on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources are pending with the Court. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”

Lawyer Romel Bagares, one of the petitioner’s counsels, explained why the Petitioners seek to have the Korean case admitted into the records of the Philippine case:

“Unlike our own Supreme Court, the Korean Court saw that its government’s refusal to settle the issue of liability with regard to the case of the Comfort Women was a violation of its Constitution and violated the Constitutional rights of its Comfort Women. Sadly, our own Supreme Court did not see it the same way in its 2010 decision. We are hoping that the Korean decision will provide necessary guidance to our own Supreme Court and they find wisdom in the reasoning of the Korean Court.”

An ethics investigation called by then Supreme Court Chief Justice Renato Corona cleared Justice Del Castillo of wrongdoing. The Committee’s exoneration of Del Castillo was later used as one of the grounds for a petition filed with Congress to impeach the Chief Justice. Del Castillo himself was found liable for impeachment by the House Committee on Justice but for lack of time, the case against him could not proceed.

The Supreme Court also sanctioned 37 professors of the UP College of Law after the latter issued an open letter criticizing the High Court for the alleged plagiarism and twisting it committed in the Vinuya case.

Malaysia’s crimes against humanity?

  It’s increasingly becoming clear that Malaysian authorities have no regard whatsoever for their duty under international human rights law to protect and promote the right to life of the Filipinos in Sabah, and their right to a judicial determination of guilt before the imposition of the death penalty. To date, the death toll has […] More →

Awed during the second national IHL summit

(I delivered the keynote address entitled “In Awe” during the Second International Humanitarian Law Summit at Malacañang yesterday. I am publishing here excerpts of my address where I explained why I was “in awe”.) I am awed because not too long ago, civil society — which I belong to, was excluded in the task of […] More →

Impunity for Nazi crimes

The International Court of Justice recently promulgated a judgment which calls into question both the relevance and function of international law. Unwittingly, it  declared that Nazi Germany is entitled to impunity for acts of forced labor that it committed during World War II. In its February 3, 2012 decision in the case of Germany vs. […] More →

IHL: The Project

The Philippine Red Cross has designated the month of August as International Humanitarian Law Month. This is a an opportunity to write about recent developments in the law applicable in times of armed conflict. Last year, the United States Supreme Court took a million steps backward when it rendered its opinion in the case of […] More →

International Humanitarian Law on IHL Day

When a fighter from the Moro Islamic Liberation Front beheads a soldier or a civilian, or resorts to cutting off ears and other body parts, he will be subject to an obligation of all states to investigate, prosecute and punish him for a serious breach of International Humanitarian Law. In like manner, a soldier from […] More →