International Human Rights Law Systems, Mechanisms, Remedies

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International Human Rights Law Systems, Mechanisms, Remedies

How IHRL is applied

First differentiate whether:

Domestic application

Monist Theory international law and municipal or domestic law are considered as one legal system (IHRL is a special area of international law), equally considered as enforceable without any qualification, there is no need for an enabling law or statute before a principle of international law may be imposed, the Philippines has monist manifestations (doctrine of incorporation, 1987 Constitution) as generally accepted principles of international law form part of the laws of the land

Dualist Theory domestic or municipal laws an international laws are considered as two separate and distinct legal systems, if there is conflict between international law and the domestic or municipal law we must first try to harmonize the two laws, if harmonization of the two cannot be achieved: 1) under the eyes of municipal tribunals, municipal or domestic laws shall prevail; 2) from the viewpoint of international tribunals, the international law shall prevail. Under international law, municipals laws are merely secondary.

The Philippines Subscribes to both theories.

As a member of the international community a state is bound to observe the generally accepted principles of international law, thus international law is deemed part of the municipal or domestic laws

International application IHRL is treaty or covenant based, the application, enforcement and remedies of IHRL are defined by a treaty or convention; except international customary law. Voluntary consent is essential in IHRL, the same is manifested in treaties and conventions dealing with IHRL is through the operative act of the ratification of the treaty or covenant. Ratification the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives (the executive branch, president through alter ego or qualified political agency), the ratification of a treaty is an executive act through the President, ratification of the executive alone is not sufficient as the 1987 Constitution requires that the senate shall concur with the same with at least 2/3 votes of all the members. This is an illustration of the principle of checks and balances. Without ratification of the treaty or covenant, the same cannot be considered as a law, as a treaty or covenant is only considered as a law if it is ratified by the state, without which the treaty is without force and effect.

Enforcement of IHRL against individual General Rule: the individual will be subjected to penal and criminal laws.

Direct liability can now be imposed to an individual under the Rome Statute in the ff:

If an individual committed genocide, war crimes, crimes of aggression, and crimes against humanity

Enforcement Against States reprisal, adverse world opinion (restitution, reparation, compensation, satisfaction)

What body of the United Nations can lead military interventions? Up to what extent? Who will lead the military intervention?

1) A state is not a signatory to an IHRL treaty or convention, it commits human rights violations within its territory, e.g. genocide, is a military intervention justified to stop the human rights violations, if yes, who will lead the military intervention?

2) If a terrorist group is operating within the territory of the state, the terrorist group committed human rights violations. The state where the terrorist is located is powerless to stop the terrorist group from committing human rights violations, is a military intervention justified, if yes, who will lead the military intervention?

Court actions limited to international courts i.e. International Court of Justice and the International Criminal Court

IHRC can entertain communication for human rights violations, can make a finding of human rights violations but it cannot impose sanctions

Diplomatic measures Diplomacy is the act of maintaining friendly relationships with other states. Diplomatic relationships with States which are human rights violators may be withdrawn.

Monitoring Systems - These are established precisely to monitor a states compliance with its treaty obligations under a particular IHRL. Pacta Sunt Servanda

Kinds of monitoring systems

1. Charter based monitoring systems or mechanisms provided by the United Nations Charter or through its specialized agencies.

a. 1503 Procedure this is applied in the absence of a treaty based monitoring system. Said procedure provided the process for the acceptance of the UN of complaints or communications for human rights violations. Process: filed with the Human Rights Council, governed by the Principal Rule Making Body of the UN, the human rights council can entertain any human rights violations even those that are not defined by treaties or conventions (The Human Rights Committee of the ICCPR is limited to the violations of the provisions the ICCPR).

i. First rule prior exhaustion of local remedies

ii. Second rule confidentiality, everything filed under this procedure is considered as confidential. Rule of Sub judiceism a party may not disclose any information about a human rights violation to the media.

b. State Reports, Country Reports, Human Rights Practices reports a state is mandated to give reports to the UN with its compliance and the overall status of human rights within its territory (at least once every four years).

c. Special Rapporteurs considered as envoys, directly sent by the UN with a principal function of investigating human rights violations. Endowed with diplomatic immunity, not within the jurisdiction of a particular state to enable him to perform his duties independently and without any pressure from any government or state. They also possess diplomatic visas which enables them to enter any country without any restriction.

d. Non-government institutions and National Human Rights Institutions

e. Universal Periodic review once every four years, a state is mandated to make a report of its human rights conditions. Troika System a method of peer review of state reports, 3 states will review the report of the state concerning the human rights conditions within that state. The reviewing states shall give comments and suggestions about the state reports of one state. This system is almost inutile as states tend to be more diplomatic towards state relationships.

2. Treaty based monitoring systems or mechanisms monitoring systems provided under the treaties and conventions themselves. Committees found under the different treaties and conventions, each committee may accept communications or complaints of violations of the provisions of the treaties or conventions and render a view (a decision) regarding such complaint or communication, however there is no actual international legal mechanism that can enforce these view rendered by the various committees, but it has a persuasive effect, if a state disregards a view It may be a cause for embarrassment within the legal community, there would be adverse world opinion.

a. Interim measures remedies given when the human rights violations is coupled with urgency and necessity. These are mandatory and are binding to states. Committees under treaties and conventions will only apply interim measures if it is coupled with urgency and necessity.

United Nations

Purposes:

Promote respect for human rights and fundamental freedoms

Promote World Peace and Security

Bodies and Organs of the United Nations

1. Human Rights Council under the direct supervision of the General Assembly, the principal policy making body of the UN, headed by the Office of the human Rights Commissioner (OHRC). The OHRC manages the human rights trust fund.

2. Security Council principal organ of the UN, important in the enforcement of Human Rights as it is the only international body that could implement military intervention to promote or protect human rights. Military intervention is always the last resort for enforcement of human rights, an attempt must be first made to peacefully order a state to stop Human Rights violations, e.g.

3. Economic and Social Council manages second generation of Human Rights under the ICESCR.

4. International Court of Justice may take cognizance of certain human rights violations of a state, however the parties must be states themselves. An individual may not directly file a complaint to the ICJ but must be represented by his own state.

5. UNESCO (United Nations Scientific Cultural Office) protects second and third generation of human rights, e.g. cultural rights are considered as second and third generation of human rights.

6. International Labor Organization mandated to provide uniform labor standards in the world. 8 hour work day is mandated by this organization.

7. Food and agricultural organization of the UN adequate standard of living is a human rights, its purpose is to sustain agriculture in states in order to avoid world hunger. Promotes agricultural development and food stability.

8. World Health Organization the right to health is a human right.

9. UNICEF focuses on childrens rights.

10. UN development Program specialized body whose purpose is to alleviate poverty among third worlds.

11. International Monetary Fund and World Trade Organization provides monetary support for developing countries. Created after World War 2 to help the recovery of war devastated countries. Facilitates economic growth (allegedly).

International Humanitarian Law or the Law of Armed Conflict or the Law of War no other event in world history that is considered as a major violation of human rights is war itself, thus this law is pertinent to the protection of Human Rights. After World War 2, laws regarding war was systematized to protect the rights of civilians and non-participants of war.

Humans should act like Humans even in times of War Atty. BonifacioBattle of Sulferino (1859) war between Italy, Sardinia and Austria, in a span of 2 hours 60,000 were killed or injured. Those who died and injured were merely lying in the battlefield waiting to die. Henry Dunant, a Swiss Businessman, thought that the soldiers should be taken care of by a neutral body and should be spared from battle, he was also the founder of the International Committee of the Red Cross, Red Crescent for Muslim Countries, these are neutral organizations which provides aid for injured war combatants and therefrom the IHL was conceived.

Main Purposes of IHL

1. Protects those that are not, or no longer participating in the hostilities, particularly civilians.

2. Restricts the use of weapons and methods of warfare. E.g. personnel landmines

3. Aims to protect human dignity and reduce human suffering in times of war.

Differences between IHL and IHRL

IHL is applied when:

1. International Armed Conflicts between states

2. Non-international armed conflicts that take place within the territory of a country

Dualist manifestation in the RP RA 1951, enacted to implement the provisions of the IHL.

IHL was initiated to protect human beings in times of war.How does IHL protect human rights in times of war?

1. The principle of distinction it requires parties to an armed conflict to distinguish between combatants and civilians

2. The Principle of Care it requires care for the wounded and the sick and protects medical personnel in times of war

3. The principle of dignity aims to protect the dignity of those affected by armed conflict, particularly the civilians

4. The Principle of acceptable warfare IHL prohibits or limits the use of weapons that are cruel and those that does not distinguish

a. Chemical weapons and incendiary rounds are not allowed, same as weapons of mass destruction

IHL is not concerned with the legality of war, it is not concerned with the party who started the war or which party is right or wrong. IHL applies to all parties that are in the war.

IHL medical and religious personnel should be protected

Sources of IHL:

1. Geneva conventions of 1949/Hague Convention (consolidated) enumerated the rules for acceptable warfare

a. The 1977 additional protocols

i. The first Geneva Convention pertains to wounded and sick combatants, the IHL mandates that the aforementioned should receive adequate care and cannot be murdered nor tortured. Captured combatants should not be the subject of experiments

ii. The Second Geneva Convention pertains to wounded and sick combatants at sea, the conditions applicable to land combatants are also applicable to sea combatants. Combatants that need assistance at sea must be given so by the party who discovered them.

iii. The Third Geneva Convention pertains to the protection of Prisoners of War, Adequate food, shelter, clothing and no torture

iv. The Fourth Geneva Convention pertains to the protection of civilians.

2. Other treaties which restrict means and methods of warfare

3. International customary law long and established way of doing things which are believed to be right and good

Universal Recognition of the Geneva Convention all states are considered as parties to the Geneva conventions, and are bound to it, even those that did not participate or sign the Geneva conventions. The principle is an exception to the rule of voluntary consent of states in the implementation of international treaties or conventions.

Armed Conflict resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.

Three Scenarios of Armed Conflict

1. Armed Conflict between two or more states

2. Armed Conflict between Governmental Authorities and organized armed groups

3. Armed Conflict between organized armed groups in a particular state/territory

The Philippines considers the PIFF, MNLF, and Abu Sayaff as mere terrorist groups or bandits.

IHL does not apply to other situations of violence like riots or other acts of lawlessness.

Civilian any person who is not a combatant, in case of doubt, a person should always be considered as a civilian. If a civilian will take a direct part in the hostilities then he shall be considered as a combatant.

Guerillas and Mercenaries are considered as combatants.

Specific Rules of IHL:

Attacks must be limited to combatants and military targets Civilian objects may not be attacked. Human shields are prohibited.

A combatant is prohibited from disguising themselves or posing as civilians

Prohibits starvation of civilians in times of war

Indispensable civilian structures should not be attacked in times of war or armed conflict

Attacks or weapons which indiscriminately attacks civilian and military objects and persons and which cause excessive injury or suffering are prohibited

orders or threats which state that there should be no survivors is prohibited

Civilians, wounded combatants, and POWs should be spared, protected and treated humanely.

Child Soldiers prohibited

Rape as warfare prohibited

Ethnic Cleansing or any form of genocide is prohibited

Who is a hors de combat? POWs were formerly known as hors de combat

Military and civilian medical personnel and facilities must be respected and protected

The aforementioned must be granted all available help for them to conduct their activities

The Red Cross and the Red Crescent symbolizes all medical personnel, the use of these emblems falsely is prohibited

Combatants may not pose as media personnel

Medical units and transports shall not be used for military purposes

The Connection between IHL and International/Global Terrorism:

1) if terrorism was committed while there was an armed conflict, terrorism will be considered as a war crime under IHL;

2) if terrorism was committed during peace time, whether international or domestic, the prosecution of the act would be under domestic law.

Terrorism R.A. 9372 Definition, there is no exact definition of terrorism under public international law. Three elements of terrorism under public international law: 1) the acts must constitute a criminal offense under most national legal systems; 2) they must be aimed at spreading terror by means of violent action, directed to a state, the public, or particular groups of persons; 3) they must be politically, religiously, or ideologically motivated.

*Recitation constitutional framework, powers of the commission on human rights, national human rights institutions, rights of child, women (battered wife syndrome), third sex ang ladlad vs comelec, and senior citizens

International Criminal Law in relation to international human rights law

International crime an act universally recognized as criminal which is considered as a grave matter of international concern and for some valid reason, it cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances. Not confined into one single territory, issues on territorial jurisdiction Is a non-issue when international crimes are concerned. International crimes can punish individual responsibility, particularly Art. 25 of the Rome Statute.

4 International Crimes under International Criminal Law

1. Genocide the deliberate killing of a large group of people, especially those of a particular ethnic group or nation2. Crimes versus Humanity any act that will degrade humanity, particularly if done within war or armed conflict

3. War Crimes any violation of the IHL

4. Crimes of Aggression taking part in an aggressive war is prohibited by public international law, only defensive war is allowed by public international law.

Rome Statute the international treaty establishing the international criminal court. The international criminal court has the jurisdiction over the aforementioned international crimes. Adapted in July 17, 1998 by the international community and entered into force in July 1, 2002. Requirements before a state can be bound by the Rome Statute:

1) the state should be a signatory to the treaty; and

2) the treaty should have been formally ratified by the state.

-The Philippines signed the Rome Statute on December 28, 2000, and ratified the same in 2011.

-Pres. Aquino signed the instrument of ratification on May 6 2011, and the

-Philippine Senate concurred in August 24, 2011,

-the treaty entered into force as far as the Philippines is concerned on November 1, 2011.- The Philippines is the 117th country to join the Rome Statute system.

General Principles of Criminal Law Adopted by the International Criminal Court

International Crimes under the Jurisdiction of the International Criminal court does not Prescribe or the statute of limitations does not apply

Presumption of Innocence

Mens Rea, general criminal intent, should at least be proven, once proven it is sufficient (Actus Rea specific criminal intent)

Prohibits Ex Post Facto laws

If the alleged act constituting the international crime is vague, the void for vagueness rule is applied The right against Double-Jeopardy is applicable

Trial in absentia is not allowed, in all proceedings the presence of the accused is required.

There is no reservations for civil actions are allowed.

It cannot impose the death penalty, it can only impose a penalty of imprisonment not exceeding 30 years.

It is the court of last resort, the Rome Statute adheres to the Principle of Complementarity, primacy and priority is given to national jurisdiction, national jurisdiction will be respected provided that national jurisdiction was invoked in order to truly punish the accused, if it is invoked for shielding against criminal liability or if the trial was a mere sham, the international criminal court shall take jurisdiction over the case

Composition of the International Criminal Court

18 judges distributed in the following divisions:

Pre-trial Division

Trial Division

Appeal Division (only a one time appeal is allowed)

Summary of Procedures of the ICC

1. Investigation by the appointed Prosecutors, in order to establish probable cause

2. Prosecution Proper

3. Trial

4. Sentence

5. One time appeal filed in the ICC

Specific rules of Jurisdiction of the ICC

The ICC must have jurisdiction over the matter, the 4 crimes abovementioned

Rule on Territorial State the act constituting the international crime must have been committed within the territory of a state who is a signatory to the Rome statute

Nationality State Jurisdiction Principle the Accused the international crime is actually a national or a citizen of a State who is a signatory to the Rome Statute

The Doctrine of Cumulative Convictions a person may be convicted of different international crimes, even if the act was only based on one conduct.

The Doctrine of Male Captus Bene Detentus literally means badly captured, well detained, it is a doctrine that permits trial of an improperly arrested individual. The manner of arrest is irrelevant in the ICC.

The Principle of Aut Dedere Aut Judicare literally means either deliver or judge, if the state cannot prosecute the accused, the state has the duty to extradite the accused to a state that has jurisdiction over the crime or one that can transfer jurisdiction to the ICC. International Crimes do not need extradition treaties under the Principle of Universal Extradition.

Victims of International Crimes have the personality to directly participate in the ICC, with or without the Help of their Home State.

Terrorism the definition of Terrorism depends upon which subject it is asked.

Possible Bar question: Enumerate at least 5 international treaties or conventions dealing with terrorism.

Treaties and Conventions regarding Terrorism

1. International Convention for the Suppression of the Financing of Terrorism

2. International Convention for the Suppression of Terrorist Bodies

3. Hague Convention for the Suppression of Hijackings.

4. Tokyo Convention on the Safety of Aviation

5. International Convention for the Suppression of unlawful acts against the safety of maritime navigations

6. Hostages Convention

7. International Convention of the prevention and punishments of crimes against internationally protected persons.

8. The Montreal Convention on air safety.

9. The Beijing Convention and Protocol on Air Safety tackled the issue of commercial planes used as weapons.

Terrorist Attacks may be the subject of enforcement actions of the UN security-council, however the UNSC may only intervene if the state cannot deal with the terrorist attacks themselves.