Public International Law Discussions (With Add Ons)

7/31/2019 Public International Law Discussions (With Add Ons)

1/34

Public International Law(Mainly from Wikipedia)

THE PROVINCE OF NORTH COTABATO vs. THE GOVERNMENT OF THE REPUBLIC OFTHE PHILIPPINES GR# 183591, October 14, 2008Carpio-Morales, J:

Facts:The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF TripoliAgreement of Peace of 2001 (MOA) is assailed on its constitutionality. This documentprepared by the joint efforts of the Government of the Republic of the Philippines (GRP)Peace Panel and the Moro Islamic Liberation Front (MILF) Peace Panel, was merely acodification of consensus points reached between both parties and the aspirations of theMILF to have a Bangsamoro homeland.

Issue:When the Executive Department pronounced to abandon the MOA, is the issue of itsconstitutionality merely moot and academic and therefore no longer justiciable by theCourt?

Held:Yes. Since the MOA has not been signed, its provisions will not at all come intoeffect. The MOA will forever remain a draft that has never been finalized. It is now nothingmore than a piece of paper, with no legal force or binding effect. It cannot be the source of,nor be capable of violating, any right. The instant Petitions, therefore, and all otheroppositions to the MOA, have no more leg to stand on. They no longer present an actualcase or a justiciable controversy for resolution by this Court.

An actual case or controversy exists when there is a conflict of legal rights or an assertion ofopposite legal claims, which can be resolved on the basis of existing law and jurisprudence.A justiciable controversy is distinguished from a hypothetical or abstract difference ordispute, in that the former involves a definite and concrete dispute touching on the legal

relations of parties having adverse legal interests. A justiciable controversy admits ofspecific relief through a decree that is conclusive in character, whereas an opinion onlyadvises what the law would be upon a hypothetical state of facts.

The Court should not feel constrained to rule on the Petitions at bar just because of thegreat public interest these cases have generated. We are, after all, a court of law, and notof public opinion. The power of judicial review of this Court is for settling real and existentdispute, it is not for allaying fears or addressing public clamor. In acting on supposedabuses by other branches of government, the Court must be careful that it is notcommitting abuse itself by ignoring the fundamental principles of constitutional law.


2/34

Principles

Compelling law principle - Jus cogens (A fundamental principle of international lawwhich is accepted by the international community of states as a norm from which noderogation is ever permitted.)

A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is aprinciple of international law considered so fundamental that it overrides all othersources of international law, including even the Charter of the United Nations. Theprinciple of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law ofTreaties:

For the purposes of the present Convention, a peremptory norm of general international lawis a norm accepted and recognized by the international community of States as awhole as a norm from which no derogation is permitted and which can be modifiedonly by a subsequent norm of general international law having the samecharacter.

Rules of jus cogens generally require or forbid the state to do particular acts or

respect certain rights. However, some define criminal offences which the state mustenforce against individuals. Generally included on lists of such norms are prohibitions ofsuch crimes and internationally wrongful acts as waging aggressive war, war crimes, crimesagainst humanity, piracy, genocide, apartheid, slavery and torture.

Opinio juris (opinio juris sive necessitates or acceptance of the practice asobligatory)A wealth of state practice does not usually carry with it a presumption that opinio jurisexists. Not only must the acts concerned amount to a settled practice, but theymust also be such, or be carried out in such a way, as to be evidence of a belief

that this practice is rendered obligatory by the existence of a rule of law requiringit.

In cases where practice (of which evidence is given) comprises abstentions from acting,consistency of conduct might not establish the existence of a rule of customary internationallaw. The fact that no nuclear weapons have been used since 1945, for example, does notrender their use illegal on the basis of a customary obligation because the necessary opiniojuris was lacking.

Although the ICJ has frequently referred to opinio juris as being an equal footing with statepractice, the role of the psychological element in the creation of customary law is uncertain.

Comity specifically refers to legal reciprocitythe principle that one jurisdiction will extendcertain courtesies to other nations (or other jurisdictions within the same nation),particularly by recognizing the validity and effect of their executive, legislative, and judicialacts. The term refers to the idea that courts should not act in a way that demeans thejurisdiction, laws, or judicial decisions of another jurisdiction.

Note: Stare decisis has no application in international law.


3/34

Customary international law are those aspects of international law that derive fromcustom. Along with general principles of law and treaties, custom is considered by theInternational Court of Justice, jurists, the United Nations, and its member states to beamong the primary sources of international law. For example, laws of war were long a

matter of customary law before they were codified in the Hague Conventions of 1899 and1907, Geneva Conventions, and other treaties. Other examples accepted or claimed ascustomary international law include the principle of non-refoulement and immunity ofvisiting foreign heads of state.

Universal jurisdiction or universality principle is a principle in public international law(as opposed to private international law) whereby states claim criminal jurisdiction overpersons whose alleged crimes were committed outside the boundaries of theprosecuting state, regardless of nationality, country of residence, or any otherrelation with the prosecuting country. The state backs its claim on the grounds thatthecrime committed is considered a crime against all, which any state is

authorized to punish, as it is too serious to tolerate jurisdictional arbitrage.

Ex factis jus oritur(Latin: the law arises from the facts) is a principle of international law.The phrase is based on the simple notion that certain legal consequences attach toparticular facts.

Conflict of laws (or private international law) is a set of procedural rules thatdetermines which legal system and which jurisdiction's applies to a given dispute.The rules typically apply when a legal dispute has a "foreign" element such as a contractagreed to by parties located in different countries, although the "foreign" element also

exists in multi-jurisdictional countries.

The three branches of conflict of laws are

Jurisdiction whether the forum court has the power to resolve the dispute at hand Choice of law the law which is being applied to resolve the dispute Foreign judgments the ability to recognize and enforce a judgment from an external

forum within the jurisdiction of the adjudicating forum

TreatyA treaty is an express agreement under international law entered into by actors ininternational law, namely sovereign states and international organizations. A treaty mayalso be known as an (international) agreement, protocol, covenant, convention or exchangeof letters, among other terms.

Treaties can be loosely compared to contracts: both are means of willing parties assumingobligations among themselves, and a party to either that fails to live up to their obligationscan be held liable under international law.


4/34

Ratification is the act by which the provisions of a treaty are formally confirmed and

approved by a State. (Pimintel vs. Romulo)

Derogation a state can excuse itself from complying with a treaty for compelling andsubstantial grounds, such as an agreement being inimical to state interest.

Power of ratification of treaties under the 1987 Constitution rests with the President. The

Senate, by 2/3 vote, is limited to giving or withholding consent or concurrence to theratification. Thus, the President may refuse to submit the treaty to the Senate.

Pimintel vs. Romulo (Presidents power of ratification)

In our system of government, the President, being the head of state, is regarded as the soleorgan and authority in external relations and is the countrys sole representative withforeign nations. As the chief architect of foreign policy, the President acts as thecountrys mouthpiece with respect to international affairs. Hence, the President is

vested with the authority to deal with foreign states and governments, extend or withholdrecognition, maintain diplomatic relations, enter into treaties, and otherwise transact thebusiness of foreign relations. In the realm of treaty-making, the President has the soleauthority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties,the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of allthe members of the Senate for the validity of the treaty entered into by him. Section 21,Article VII of the 1987 Constitution provides that no treaty or internationalagreement shall be valid and effective unless concurred in by at least two-thirds ofall the Members of the Senate.

***The participation of the legislative branch in the treaty-making process wasdeemed essential to provide a check on the executive in the field of foreignrelations. By requiring the concurrence of the legislature in the treaties entered into by thePresident, the Constitution ensures a healthy system of checks and balance necessary inthe nations pursuit of political maturity and growth.

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987Constitution to mean that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making

process in this wise:

The usual steps in the treaty-making process are: negotiation,signature, ratification, and exchange of the instruments ofratification. The treaty may then be submitted for registration andpublication under the U.N. Charter, although this step is not essential to thevalidity of the agreement as between the parties.


5/34

Negotiation may be undertaken directly by the head of state buthe now usually assigns this task to his authorized representatives.These representatives are provided with credentials known as full powers,which they exhibit to the other negotiators at the start of the formaldiscussions. It is standard practice for one of the parties to submit a draft ofthe proposed treaty which, together with the counter-proposals, becomes the

basis of the subsequent negotiations. The negotiations may be brief orprotracted, depending on the issues involved, and may even collapse incase the parties are unable to come to an agreement on the points underconsideration.

If and when the negotiators finally decide on the terms of the treaty,the same is opened for signature. This step is primarily intended as ameans of authenticating the instrument and for the purpose of symbolizingthe good faith of the parties; but, significantly, it does not indicate the finalconsent of the state in cases where ratification of the treaty is required. Thedocument is ordinarily signed in accordance with the alternat, that is, each ofthe several negotiators is allowed to sign first on the copy which he will bringhome to his own state.

Ratification, which is the next step, is the formal act by which astate confirms and accepts the provisions of a treaty concluded by itsrepresentatives. The purpose of ratification is to enable the contractingstates to examine the treaty more closely and to give them anopportunity to refuse to be bound by it should they find it inimical totheir interests. It is for this reason that most treaties are madesubject to the scrutiny and consent of a department of thegovernment other than that which negotiated them.

x x x

The last step in the treaty-making process is the exchange of theinstruments of ratification, which usually also signifies the effectivity ofthe treaty unless a different date has been agreed upon by the parties.Where ratification is dispensed with and no effectivity clause is embodied inthe treaty, the instrument is deemed effective upon its signature. [emphasissupplied]

***Petitioners submission that the Philippines is bound under treaty law and international lawto ratify the treaty which it has signed is without basis. The signature does not signifythe final consent of the state to the treaty. It is the ratification that binds thestate to the provisions thereof. In fact, the Rome Statute itself requires that thesignature of the representatives of the states be subject to ratification, acceptance

or approval of the signatory states.Ratification is the act by which the provisionsof a treaty are formally confirmed and approved by a State. By ratifying a treatysigned in its behalf, a state expresses its willingness to be bound by the provisionsof such treaty. After the treaty is signed by the states representative, the President,being accountable to the people, is burdened with the responsibility and the duty tocarefully study the contents of the treaty and ensure that they are not inimical tothe interest of the state and its people. Thus, the President has the discretion evenafter the signing of the treaty by the Philippine representative whether or not to ratifythe same. The Vienna Convention on the Law of Treaties does not contemplate to


6/34

defeat or even restrain this power of the head of states. If that were so, therequirement of ratification of treaties would be pointless and futile. It has been held that astate has no legal or even moral duty to ratify a treaty which has been signed by itsplenipotentiaries. There is no legal obligation to ratify a treaty, but it goes withoutsaying that the refusal must be based on substantial grounds and not onsuperficial or whimsical reasons. Otherwise, the other state would be justified in taking

offense.

It should be emphasized that under our Constitution,the power to ratify isvested in the President, subject to the concurrence of the Senate. The role of theSenate, however, is limited only to giving or withholding its consent, orconcurrence, to the ratification. Hence, it is within the authority of the President torefuse to submit a treaty to the Senate or, having secured its consent for itsratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which hasbeen signed in its behalf is a serious step that should not be taken lightly, such decision iswithin the competence of the President alone, which cannot be encroached by this Court viaa writ of mandamus. This Court has no jurisdiction over actions seeking to enjointhe President in the performance of his official duties. The Court, therefore, cannotissue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to

compel the executive branch of the government to transmit the signed text of Rome Statuteto the Senate.

The principle of reciprocity states that favors, benefits, or penalties that are granted byone state to the citizens or legal entities of another, should be returned in kind. Forexample, reciprocity has been used in the reduction of tariffs, the grant of copyrights toforeign authors, the mutual recognition and enforcement of judgments, and the relaxationof travel restrictions and visa requirements. The principle of reciprocity also governs

agreements on extradition.

Admission on motion, a specialized form of reciprocity concerning admission to the bar ofcertain U.S. states

A reservation in international law is a caveat to a state's acceptance of a treaty. Ineffect, a reservation allows the state to be a party to the treaty, while excluding thelegal effect of that specific provision in the treaty to which it objects. States cannottake reservations after they have accepted the treaty; a reservation must be made at thetime that the treaty affects the State.

Pacta sunt servanda (Latin for "agreements must be kept"), is a brocard, a basicprinciple of civil law and of international law. In its most common sense, the principle refersto private contracts, stressing that contained clauses are law between the parties, andimplies that nonfulfilment of respective obligations is a breach of the pact.

With reference to international agreements, "every treaty in force is binding upon theparties to it and must be performed by them in good faith." Pacta sunt servanda isrelated to good faith, while pacta sunt servanda does not equate with good faith. Thisentitles states to require that obligations be respected and to rely upon the


7/34

obligations being respected. This good faith basis of treaties implies that a partyto the treaty cannot invoke provisions of its municipal (domestic) law asjustification for a failure to perform. However, with regards to the Vienna Conventionand the UNIDROIT Principles it should be kept in mind that these are heavily influenced bycivil law jurisdictions. To derive from these sources that pacta sunt servanda includes theprinciple of good faith is therefore incorrect.

The only limit to pacta sunt servanda are the peremptory norms of generalinternational law, called jus cogens (compelling law). The legal principle clausularebus sic stantibus, part of customary international law, also allows for treatyobligations to be unfulfilled due to a compelling change in circumstances.

Causula rebus sic stantibus (Latin for "things thus standing") is the legal doctrineallowing for treaties to become inapplicable because of a fundamental change ofcircumstances. It is essentially an "escape clause" that makes an exception to thegeneral rule of pacta sunt servanda (promises must be kept). If the parties to a treatyhad contemplated for the occurrence of the changed circumstance the doctrine does notapply and the provision remains in effect. Clausula rebus sic stantibus only relates to

changed circumstances that were never contemplated by the parties.

Denunciation or abrogation refers to the announcement of a treaty's termination.Some treaties contain a termination clause that specifies that the treaty will terminate if acertain number of nations denounce the treaty.

Protocol de cloture - final act; a summary of the proceedings of a diplomaticconference and usually includes a reproduction of the texts of treaties, conventions,recommendations and other acts agreed upon by the plenipotentiaries attending theconference.

Non-refoulement.Non-refoulement is a principle of the international law, i.e. of customary and trucial Lawof Nations which forbids the rendering a true victim of persecution to theirpersecutor; persecutor generally referring to a state-actor (country/government).Non-refoulement is a key facet of refugee law, that concerns the protection ofrefugees from being returned to places where their lives or freedoms could bethreatened.

Unlike political asylum, which applies to those who can prove a well-grounded fearof persecution based on membership in a social group or class of persons, non-refoulement refers to the generic repatriation of people, generally refugees into war

zones and other disaster areas. Non-refoulement is a jus cogens (peremptory norm) ofinternational law that forbids the expulsion of a refugee into an area, usually theirhome-country, where the person might be again subjected to persecution.


8/34

ExtraditionExtradition is the official process whereby one nation or state surrenders a suspected orconvicted criminal to another nation or state. Between nation states, extradition is regulatedby treaties. Where extradition is compelled by laws, such as among sub-nationaljurisdictions, the concept may be known more generally as rendition.

Doctrine of Specialty: A typical requirement in extradition: that the receiving state notprosecute the individual being extradited but for the offence for which extraditionwas sought.

"(The) doctrine of specialty ... prohibits the requesting state from prosecuting for crimesother than that for which the extradition took place."

Bars to extraditionBy enacting laws or concluding treaties or agreements, countries determine the conditionsunder which they may entertain or deny extradition requests. Common bars to extraditioninclude:

Failure to fulfill dual criminality - generally the act for which extradition is soughtmust constitute a crime punishable by some minimum penalty in both the requesting

and the requested parties.

Political nature of the alleged crime - most countries refuse to extradite suspectsof political crimes.

Possibility of certain forms of punishment - some countries refuse extradition ongrounds that the person, if extradited, may receive capital punishment or facetorture. A few go as far as to cover all punishments that they themselves would notadminister.

Jurisdiction - Jurisdiction over a crime can be invoked to refuse extradition. Inparticular, the fact that the person in question is a nation's own citizen causes that

country to have jurisdiction.

Own nationals - Some countries, such as France, Germany, Russia, Austria, thePeople's Republic of China, the Republic of China (Taiwan)and Japan, forbidextradition of their own nationals. These countries often have laws in place that givethem jurisdiction over crimes committed abroad by or against citizens. By virtue ofsuch jurisdiction, they prosecute and try citizens accused of crimes committedabroad as if the crime had occurred within the country's borders. Some nationsrefuse to extradite their own citizens, holding trials for the persons themselves (seee.g. trial of Xiao Zhen).

Death penalty - Many countries, such as Australia, Canada, Macao, Mexico, andmost European nations, will not allow extradition if the death penalty may be

imposed on the suspect unless they are assured that the death sentence will not bepassed or carried out.

Torture, inhuman or degrading treatment or punishment - Many countries willnot extradite if there is a risk that a requested person will be subjected to torture,inhuman or degrading treatment or punishment.


9/34

Government of Hong Kong vs. Olalia (US vs. Puruganan overturned, Standard forbail in extradition cases)Petitioner alleged that the trial court committed grave abuse of discretion amounting to lackor excess of jurisdiction in admitting private respondent to bail; that there is nothing in theConstitution or statutory law providing that a potential 9xtradite has a right to bail, the rightbeing limited solely to criminal proceedings.

***However, this Court cannot ignore the following trends in international law: (1) the growingimportance of the individual person in public international law who, in the 20th century, hasgradually attained global recognition; (2) the higher value now being given to human rightsin the international sphere; (3) the corresponding duty of countries to observe theseuniversal human rights in fulfilling their treaty obligations; and (4) the duty of this Court tobalance the rights of the individual under our fundamental law, on one hand, and the law onextradition, on the other.

The modern trend in public international law is the primacy placed on the worth ofthe individual person and the sanctity of human rights. Slowly, the recognition thatthe individual person may properly be a subject of international law is now taking root. The

vulnerable doctrine that the subjects of international law are limited only to states wasdramatically eroded towards the second half of the past century. For one, the Nurembergand Tokyo trials after World War II resulted in the unprecedented spectacle of individualdefendants for acts characterized as violations of the laws of war, crimes against peace, andcrimes against humanity. Recently, under the Nuremberg principle, Serbian leaders havebeen persecuted for war crimes and crimes against humanity committed in the formerYugoslavia. These significant events show that the individual person is now a valid subjectof international law.

On a more positive note, also after World War II, both international organizations and statesgave recognition and importance to human rights. Thus, on December 10, 1948, the UnitedNations General Assembly adopted the Universal Declaration of Human Rights in which the

right to life, liberty and all the other fundamental rights of every person were proclaimed.While not a treaty, the principles contained in the said Declaration are nowrecognized as customarily binding upon the members of the internationalcommunity. Thus, in Mejoff v. Director of Prisons, this Court, in granting bail to aprospective deportee, held that under the Constitution, the principles set forth in thatDeclaration are part of the law of the land. In 1966, the UN General Assembly alsoadopted the International Covenant on Civil and Political Rights which thePhilippines signed and ratified.Fundamental among the rights enshrined thereinare the rights of every person to life, liberty, and due process.

***If bail can be granted in deportation cases, we see no justification why it shouldnot also be allowed in extradition cases. Likewise, considering that the Universal

Declaration of Human Rights applies to deportation cases, there is no reason why it cannotbe invoked in extradition cases. After all, both are administrative proceedings wherethe innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must beviewed in the light of the various treaty obligations of the Philippines concerningrespect for the promotion and protection of human rights. Under these treaties, thepresumption lies in favor of human liberty. Thus, the Philippines should see to it that theright to liberty of every individual is not impaired.


10/34

***

Extradition has thus been characterized as the right of a foreign power, created bytreaty, to demand the surrender of one accused or convicted of a crime within itsterritorial jurisdiction, and the correlative duty of the other state to surrender himto the demanding state. It is not a criminal proceeding. Even if the potential extraditee

is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishmentfor a crime, even though such punishment may follow extradition. It issui generis, tracingits existence wholly to treaty obligations between different nations. It is not a trial todetermine the guilt or innocence of the potential extraditee. Nor is it a full-blown civilaction, but one that is merely administrativein character. Its object is to prevent theescape of a person accused or convicted of a crime and to secure his return to the statefrom which he fled, for the purpose of trial or punishment.

But while extradition is not a criminal proceeding, it is characterized by the following: (a) itentails a deprivation of liberty on the part of the potential extraditee and (b) the meansemployed to attain the purpose of extradition is also "the machinery of criminallaw." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which

mandates the "immediate arrest and temporary detention of the accused" if such "willbest serve the interest of justice." We further note that Section 20 allows the requestingstate "in case of urgency" to ask for the "provisional arrest of the accused, pendingreceipt of the request for extradition;" and that release from provisional arrest "shallnot prejudice re-arrest and extradition of the accused if a request for extradition is receivedsubsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks ofa criminal process. A potential extraditee may be subjected to arrest, to a prolongedrestraint of liberty, and forced to transfer to the demanding state following theproceedings. "Temporary detention" may be a necessary step in the process of extradition,but the length of time of the detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remainedincarcerated until December 20, 2001, when the trial court ordered his admission to bail. Inother words, he had been detained for over two (2) years without having beenconvicted of any crime. By any standard, such an extended period of detention is aserious deprivation of his fundamental right to liberty. In fact, it was this prolongeddeprivation of liberty which prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however,there is no provision prohibiting him or her from filing a motion for bail, a right todue process under the Constitution.

The applicable standard of due process, however, should not be the same as that in criminal

proceedings. In the latter, the standard of due process is premised on the presumption ofinnocence of the accused. As Purganan correctly points out, it is from this major premisethat the ancillary presumption in favor of admitting to bail arises. Bearing in mind thepurpose of extradition proceedings, the premise behind the issuance of the arrest warrantand the "temporary detention" is the possibility of flight of the potential extraditee. This isbased on the assumption that such extraditee is a fugitive from justice. Given the foregoing,the prospective extraditee thus bears the onus probandiof showing that he or sheis not a flight risk and should be granted bail.


11/34

The time-honored principle ofpacta sunt servanda demands that the Philippines honor itsobligations under the Extradition Treaty it entered into with the Hong Kong SpecialAdministrative Region. Failure to comply with these obligations is a setback in our foreignrelations and defeats the purpose of extradition. However, it does not necessarily meanthat in keeping with its treaty obligations, the Philippines should diminish apotential extraditees rights to life, liberty, and due process. More so, where these

rights are guaranteed, not only by our Constitution, but also by internationalconventions, to which the Philippines is a party. We should not, therefore, deprive anextraditee of his right to apply for bail, provided that a certain standard for thegrant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in grantingor denying bail can neither be the proof beyond reasonable doubt in criminal cases nor thestandard of proof of preponderance of evidence in civil cases. While administrative incharacter, the standard of substantial evidence used in administrative cases cannot likewiseapply given the object of extradition law which is to prevent the prospective extraditee fromfleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, nowChief Justice Reynato S. Puno, proposed that a new standard which he termed "clear andconvincing evidence" should be used in granting bail in extradition cases. Accordingto him, this standard should be lower than proof beyond reasonable doubt but higher thanpreponderance of evidence. The potential extraditee must prove by "clear and convincingevidence" that he is not a flight risk and will abide with all the orders and processes of theextradition court.

Diplomatic ImmunityDiplomatic immunity is a form of legal immunity and a policy held between governmentsthat ensures that diplomats are given safe passage and are considered not susceptible tolawsuit or prosecution under the host country's laws (although they can be expelled). It wasagreed as international law in the Vienna Convention on Diplomatic Relations (1961)

US Vs. Ruiz 136 SCRA 487 (Overturned now by Holy See Case)Facts:

The USA had a naval base in Subic, Zambales. The base was one of those provided in themilitary bases agreement between Phils. and the US. Respondent alleges that it won in thebidding conducted by the US for the construction of wharves in said base that was merelyawarded to another group. For this reason, a suit for specific performance was filed by himagainst the US.

Issue: Whether the US naval base in bidding for said contracts exercise governmentalfunctions to be able to invoke state immunity.

Held:

The traditional role of the state immunity exempts a state from being sued in the courts ofanother state without its consent or waiver. This rule is necessary consequence of theprinciple of independence and equality of states. However, the rules of internationallaw are not petrified; they are continually and evolving and because the activitiesof states have multiplied. It has been necessary to distinguish them between sovereign


12/34

and governmental acts and private, commercial and proprietary acts. the result is that stateimmunity now extends only to sovereign and governmental acts.

The restrictive application of state immunity is proper only when the proceedings arise outof commercial transactions of the foreign sovereign. Its commercial activities of economicaffairs. A state may be descended to the level of an individual and can thus be deemed to

have tacitly given its consent to be sued. Only when it enters into business contracts. Itdoes not apply where the contracts relates the exercise of its sovereign function. In thiscase, the project are integral part of the naval base which is devoted to the defense of bothUS and Phils., indisputably, a function of the government of highest order, they are notutilized for , nor dedicated to commercial or business purposes.

The Holy See vs. Rosario, Jr.G.R. No. 101949 01 December 1994

FACTS:

This petition arose from a controversy over a parcel of land consisting of 6,000 squaremeters located in the Municipality of Paranaque. Said lot was contiguous with two otherlots. These lots were sold to Ramon Licup. In view of the refusal of the squatters to vacatethe lots sold, a dispute arose as to who of the parties has the responsibility of evicting andclearing the land of squatters. Complicating the relations of the parties was the sale bypetitioner of the lot of concern to Tropicana.

ISSUE:

Whether the Holy See is immune from suit insofar as its business relations regarding sellinga lot to a private entity

RULING:

As expressed in Section 2 of Article II of the 1987 Constitution, we have adoptedthe generally accepted principles of International Law. Even without this affirmation,such principles of International Law are deemed incorporated as part of the law ofthe land as a condition and consequence of our admission in the society of nations.In the present case, if petitioner has bought and sold lands in the ordinary course of realestate business, surely the said transaction can be categorized as an act jure gestionis.However, petitioner has denied that the acquisition and subsequent disposal of thelot were made for profit but claimed that it acquired said property for the site ofits mission or the Apostolic Nunciature in the Philippines.

The Holy See is immune from suit for the act of selling the lot of concern is non-proprietary in nature. The lot was acquired by petitioner as a donation from theArchdiocese of Manila. The donation was made not for commercial purpose, but for the useof petitioner to construct thereon the official place of residence of the Papal Nuncio. Thedecision to transfer the property and the subsequent disposal thereof are likewiseclothed with a governmental character. Petitioner did not sell the lot for profit orgain. It merely wanted to dispose of the same because the squatters livingthereon made it almost impossible for petitioner to use it for the purpose of thedonation.


13/34

Doctrine of State Immunity from Suit (Civil, administrative and criminal)Consul immune only from civil and administrative suit.Ambassador immune from civil, administrative and criminal suit.

Protective/extraterritoriality principle the laws of the Philippines still hold over its

citizens abroad.

International Criminal CourtThe Rome Statute of the International Criminal Court (often referred to as theInternational Criminal Court Statute or the Rome Statute) is the treaty thatestablished the International Criminal Court (ICC). It was adopted at a diplomaticconference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 1February 2012, 120 states are party to the statute. Among other things, the statuteestablishes the court's functions, jurisdiction and structure.

Jurisdiction of the ICCUnder the Rome Statute, the ICC can only investigate and prosecute the coreinternational crimes (genocide, crimes against humanity, war crimes and thecrime of aggression) in situations where states are unable or unwilling to do sothemselves. Thus, the majority of international crimes continue to go unpunished unlessand until domestic systems can properly deal with them. Therefore, permanent solutions toimpunity must be found at the domestic level.

Note: ICC is not an instrumentality of the UN.

The ICC has 15 members. Its permanent members are America, France, United

Kingdom, Russia and China.

International crimes require intent and knowledge. Thus, ICC requirespresentation of proof beyond reasonable doubt.

Cumulative conviction one act may result in several convictions for violations ofdifferent laws.

An accused is convicted under different provisions of the Statute on the basis ofthe same underlying act or acts. For example, an accused may be found guilty of willfulkilling as a grave breach of the Geneva Conventions (article 2), and of murder as a violationof the laws or customs of war (article 3 (common article 3)), because the required elementsof each offence are satisfied by the evidence presented before the Trial Chamber. An

accused may also be found guilty of offences punishable under the same article. Forexample, the evidence may satisfy the elements of rape as a crime against humanity(article 5), as well as torture as a crime against humanity (article 5). (LexixNexis)

Maximum penalty that ICC can impose is life imprisonment.


14/34

International Centre for Settlement of Investment Disputes (ICSID)The International Centre for Settlement of Investment Disputes (ICSID), an institution ofthe World Bank Group based in Washington, D.C., United States, was established in 1966pursuant to the Convention on the Settlement of Investment Disputes between States andNationals of Other States (the ICSID Convention or Washington Convention). As of May2011, 157 countries had signed the ICSID Convention.

ICSID has an Administrative Council, chaired by the World Bank's President, and aSecretariat. It provides facilities for the conciliation and arbitration of investmentdisputes between member countries and individual investors.

Note: ICSID is under the World Bank. It is an arbitration body with jurisdiction over

investment disputes.

Pursuant to the Convention, ICSID provides facilities for the conciliation and arbitrationof disputes between member countries and investors who qualify as nationals ofother member countries.Recourse to ICSID conciliation and arbitration is entirelyvoluntary. However, once the parties have consented to arbitration under the ICSIDConvention, neither can unilaterally withdraw its consent. Moreover, all ICSID

Contracting States, whether or not parties to the dispute, are required by theConvention to recognize and enforce ICSID arbitral awards.

Besides this original role, the Centre has since 1978 had a set of Additional Facility Rulesauthorizing the ICSID Secretariat to administer certain types of proceedings between Statesand foreign nationals which fall outside the scope of the Convention. These includeconciliation and arbitration proceedings where either the State party or the homeState of the foreign national is not a member of ICSID. Additional Facility conciliationand arbitration are also available for cases where the dispute is not an investmentdispute provided it relates to a transaction which has "features that distinguishesit from an ordinary commercial transaction." The Additional Facility Rules further allowICSID to administer a type of proceedings not provided for in the Convention, namely fact-

finding proceedings to which any State and foreign national may have recourse ifthey wish to institute an inquiry "to examine and report on facts."

A third activity of ICSID in the field of the settlement of disputes has consisted in theSecretary-General of ICSID accepting to act as the appointing authority ofarbitrators for ad hoc (i.e., non-institutional) arbitration proceedings. This is mostcommonly done in the context of arrangements for arbitration under the Arbitration Rules ofthe United Nations Commission on International Trade Law (UNCITRAL), which are speciallydesigned for ad hoc proceedings.

Internationally wrongful acts

Internationally wrongful act acts in violation of international law that would result inliability by imposition of damages.

According to the Draft Articles, an internationally wrongful act must:

be attributable to the state under international law; and constitute a breach of an international obligation of the state.


15/34

An internationally wrongful act which results from the breach by a State of an international

obligation so essential for the protection of fundamental interests of the international

community that its breach is recognized as a crime by that community as a whole

constitutes an international crime. On the basis of the rules of international law in force, an

international crime may result, inter alia, from:

(a) a serious breach of an international obligation of essential importance for the

maintenance of international peace and security, such as that prohibiting aggression;

(b) a serious breach of an international obligation of essential importance for safeguarding

the right of self-determination of peoples, such as that prohibiting the establishment or

maintenance by force of colonial domination;

(c) a serious breach on a widespread scale of an international obligation of essential

importance for safeguarding the human being, such as those prohibiting slavery, genocide

and apartheid;

(d) a serious breach of an international obligation of essential importance for the

safeguarding and preservation of the human environment, such as those prohibitingmassive pollution of the atmosphere or of the seas.

Any internationally wrongful act which is not an international crime in accordance with

paragraph 2 constitutes an international delict.

Acts short of warRetaliation is a nonamicable action short of war taken by one state against anotherin response to conduct that the retaliating state considers injurious or unfriendly.It may be forcible or peaceful.

http://www.answers.com/topic/retaliation-in-interational-law#ixzz1tZWmUtDE

Retorsion (French rtorsion, from Latin retortus (influenced by Late Latin, 158595, torsi,a twisting, wringing), a phrase used in International Law is an act perpetrated by onenation upon another in retaliation or reprisal for a similar act perpetrated by theother nation. The typical methods of retorsion are the use of comparably severe measuresagainst citizens of the foreign nation found within the borders of the retaliating nation. It isalways an action in conformity with international law, though unmistakably an unfriendlyone.

A reprisal is a limited and deliberate violation of international law to punish

another sovereign state that has already broken them. Reprisals in the laws of warare extremely limited, as they commonly breached the rights of civilians, an action outlawedby the Geneva Conventions. They are acts which are illegal if taken alone, but becomelegal when adopted by one state in retaliation for the commission of an earlierillegal act by another state. Counter-reprisals are generally not allowed.


16/34

Requisites of a reprisal:

There had to be a previous act by the other party that violated international law. Reprisals had to be preceded by an unsatisfied demand for reparation or

compliance with the violated international law.

There must be proportionality between the offence and reprisal.Countermeasure in public international law refers to reprisals not involving the use offorce. In other words, it refers to non-violent acts which are illegal in themselves, butbecome legal when executed by one state in response to the commission of an earlier illegalact by another state towards the former.

The leading case on countermeasure is the International Court of Justice decision inGabkovo Nagymaros Dams case. The court remarked that, for a countermeasure to bejustifiable, it must meet the conditions below:

1. The act constituting countermeasure must be taken in response to a previousintentional wrongful act of another state and must be directed against thatstate.

2. The injured state must have already called upon the state committing thewrongful act to discontinue its wrongful conduct or to make reparation, butthe request was refused.

3. The countermeasure must be commensurate with the injury suffered, takinginto account the rights in question.

4. The purpose behind evoking the countermeasure is to induce the wrongdoingstate to comply with its obligations under international law. Therefore, themeasure must be reversible.

Embargo is the prohibition by a country of the departure of ships or certain typesof goods from its ports. The detention of foreign vessels has occurred more often, eitheras an act of reprisal designed to coerce diplomatic redress, or in contemplation ofwar with the country to which the vessels belonged. Embargoes on goods, however,are far more common. Although an embargo can cripple a nation's economy, the use of anembargo alone has typically failed to achieve the goal its imposition was intended to secure.http://www.infoplease.com/ce6/history/A0817233.html#ixzz1tZYDiCM1

Non-intercourse in international law is the refusal of a state to engage in diplomaticor commercial relations with another state. It is a hostile act of retaliation for somewrong and is intended to effect redress. Since nations normally have diplomatic andcommercial intercourse, non-intercourse may in some circumstances be a threat of war.

http://www.infoplease.com/ce6/society/A0835832.html#ixzz1tZXq8FuD

Economic interventionism is an action taken by a government or an internationalinstitution in a market economy or market-oriented mixed economy, beyond thebasic regulation of fraud and enforcement of contracts, in an effort to impact theeconomy. Economic intervention can be aimed at a variety of political or economicobjectives, such as promoting economic growth, increasing employment, raising wages,raising or reducing prices, promoting equality, managing the money supply and interest


17/34

rates, increasing profits, or addressing market failures. The term economic interventionassumes the state and economy are inherently separate from each other; thereforeapplies to capitalist market or mixed economies where government action interrupts themarket forces at play with orders or sanctions, which will benefit the state (although thisdoes not apply to state-owned enterprises that operate in the market).

Economic interventions common in contemporary governments include targeted taxes,targeted tax credits, minimum wage legislation, union shop rules, contracting preferences,direct subsidies to certain classes of producers, price supports, price caps, productionquotas, import quotas, and tariffs.

War

War is an organized, armed, and often a prolonged conflict that is carried on betweenstates, nations, or other parties typified by extreme aggression, social disruption, andusually high mortality. War should be understood as an actual, intentional andwidespread armed conflict between political communities, and therefore is definedas a form of political violence. The set of techniques used by a group to carry out war isknown as warfare.

Conventional warfare is an attempt to reduce an opponent's military capability throughopen battle. It is a declared war between existing states in which nuclear, biological, orchemical weapons are not used or only see limited deployment in support of conventionalmilitary goals and maneuvers.

The opposite of conventional warfare, unconventional warfare, is an attempt to achievemilitary victory through acquiescence, capitulation, or clandestine support for oneside of an existing conflict.

Asymmetric warfare is a conflict between two populations of drastically differentlevels of military capability or size. Asymmetric conflicts often result in guerrillatactics being used to overcome the sometimes vast gaps in technology and force size.

Warfare by objective: Defensive warfare Offensive warfare

Warfare by doctrine: Attrition warfare/Fabian warfare Maneuver warfare Guerilla warfare Static warfare/Positional warfare Insurgency warfare Counterinsurgency warfare

"revolutionary warfare" - guerrilla warfare plus political action (Bernard Fall)


18/34

Note: A declaration of war requires 2/3 vote of both houses, voting separately.

War of National LiberationIn Marxist terminology, wars of national liberation or national liberation revolutions are

conflicts fought by oppressed nationalities against imperial powers to establishseparate sovereign states for the subjugated nationality. From a Western point ofview, these same wars are called insurgencies or rebellions, or more positively, wars ofindependence. Wars of national liberation refer to the wars fought since the OctoberRevolution of 1917, especially those fought during the decolonization movement,and never those fought against a communist party. They were founded in guerrillawarfare or asymmetric warfare by national liberation movements, often withintervention from other states. This struggle became a major battlefield of the Cold War.

War of IndependenceA war of independence is a conflict occurring over a territory that has declared

independence. Once the state that previously held the territory sends in military forces toassert its sovereignty or the native population clashes with the former occupier, a separatistrebellion has begun. If a new state is successfully established, the conflict issubsequently known as a war of independence.

InsurgencyAn insurgency is an armed rebellion against a constituted authority (for example, anauthority recognized as such by the United Nations) when those taking part in therebellion are not recognized as belligerents. An insurgency can be fought via counter-insurgency warfare, and may also be opposed by measures to protect the population, and

by political and economic actions of various kinds aimed at undermining the insurgents'claims against the incumbent regime. An "insurgency" may include, but not necessarily use,guerrilla warfare.

The use of the term insurgency does recognize the political motivation of thosewho participate in an insurgency, while the term brigandry implies no politicalmotivation. If an uprising has little support (for example those who continue to resisttowards the end of an armed conflict when most of their allies have surrendered) then sucha resistance may be described as brigandry and those who participate as brigands.

The distinction on whether an uprising is an insurgency or a belligerency has not been asclearly codified as many other areas covered by the internationally accepted laws of war fortwo reasons. The first is that international law traditionally does not encroach on

matters which are solely the internal affairs of a sovereign state (although recentdevelopments such as the responsibility to protect is starting to undermine this traditionalapproach). The second is because at the Hague Conference of 1899 there was disagreementbetween the Great Powers who considered francs-tireurs to be unlawful combatants subjectto execution on capture and smaller states who maintained that they should be consideredlawful combatants. The dispute resulted in a compromise wording being included in theHague Conventions known as the Martens Clause after the diplomat who drafted theclause.


19/34

Counter-InsurgencyA counter-insurgency or counterinsurgency (COIN) involvesactions taken by therecognized government of a nation to contain or quell an insurgency taken upagainst it. In the main, the insurgents seek to destroy or erase the political authority of thedefending authorities in a population they seek to control, and the counter-insurgent forces

seek to protect that authority and reduce or eliminate the supplanting authority of theinsurgents.

Counter-insurgency operations are common during war, occupation and armedrebellions. Counter-insurgency may be armed suppression of a rebellion, coupled withtactics such as divide and rule designed to fracture the links between the insurgency andthe population in which the insurgents move. Because it may be difficult or impossible todistinguish between an insurgent, a supporter of an insurgency who is a non-combatant,and entirely uninvolved members of the population, counter-insurgency operations haveoften rested on a confused, relativistic, or otherwise situational distinction betweeninsurgents and non-combatants. (Before one counters an insurgency, however, one mustunderstand what one is countering. Typically the most successful counterinsurgencies havebeen the British in the Malay Emergency and the Filipino government's countering of the

Huk Rebellion.)

Guerilla WarfareGuerrilla warfare is a form of irregular warfare and refers to conflicts in which asmall group of combatants including, but not limited to, armed civilians (or"irregulars") use military tactics, such as ambushes, sabotage, raids, the elementof surprise, and extraordinary mobility to harass a larger and less-mobiletraditional army, or strike a vulnerable target, and withdraw almost immediately.

International Armed Conflict, Internationalized Armed Conflict and Non-International Armed Conflict DistinguishedAccording to the Geneva Conventions of 1949, common article 2 states that all cases ofdeclared war or of any armed conflict that may arise between two or more high contractingparties, even if the state of war is not recognized, the convention shall also apply to allcases of partial or total occupation of the territory of a high contracting party even if thesaid occupation meets with no armed resistance'' (Geneva Convention, 1949, commonart.2). This means that the occurrence ofinternational armed conflict is clear, that is, itwould be a conflict between the legal armed forces of two different states. A goodexample would be the North Korean-South Korean war of 1950.

The second armed conflict recognized by international humanitarian law is a new

phenomenon known as 'an internationalized armed conflict'. The situation of aninternationalized armed conflict can occur when a war occurs between two differentfactions fighting internally but supported by two different states (Stewart, 2003, p315). The most visible example of an internationalized armed conflict was the conflict in theDemocratic Republic of Congo in 1998 when the forces from Rwanda, Angola, Zimbabweand Uganda intervened to support various groups in the DRC (Stewart, 315).

Non-international armed conflicts, according to common article 3 of the GenevaConvention, are armed conflicts that are non-international in nature occurring in


20/34

one of the High contracting parties (Geneva Convention, common article 3, 1949). Thismeans that one of the parties involved is nongovernmental in nature. However,common article 3 also states that it does not apply to other forms of violence such asriots, isolated and sporadic acts of violence. This abstract definition has made itdifficult to make a clear distinction between a mere disturbance and an armed conflict,therefore relying heavily on the political will of states to classify the situation as an

armed conflict. For a situation to be classified as a non-international armed conflict, it hasto achieve two variables: first, the hostilities have to reach a certain minimum levelof intensity (Vite, p 75; ICRC, 2008, p 3) and formin a collective character; andsecond, there has to be a level of organization of the parties (Vite, p 75)(Defining Armed Conflict in International Humanitarian Lawhttp://www.studentpulse.com/articles/508/defining-armed-conflict-in-international-humanitarian-law)

The law of war is a body of law concerning acceptable justifications to engage inwar (jus ad bellum) and the limits to acceptable wartime conduct (jus in bello orInternational humanitarian law).

Some of the central principles underlying laws of war are: Wars should be limited to achieving the political goals that started the war

(e.g., territorial control) and should not include unnecessary destruction.

Wars should be brought to an end as quickly as possible. People and property that do not contribute to the war effort should be

protected against unnecessary destruction and hardship.

To this end, laws of war are intended to mitigate the hardships of war by: Protecting both combatants and noncombatants from unnecessary

suffering.

Safeguarding certain fundamental human rights of persons who fall into thehands of the enemy, particularly prisoners of war, the wounded and sick, andcivilians.

Facilitating the restoration of peace.

Lawful conduct of belligerent actorsModern laws of war regarding conduct during war (jus in bello), such as the 1949 GenevaConventions, provide that it is unlawful for belligerents to engage in combat without

meeting certain requirements, among them the wearing of a distinctive uniform or otherdistinctive signs visible at a distance, and the carrying of weapons openly.Impersonating soldiers of the other sideby wearing the enemy's uniformisallowed, though fighting in that uniform is unlawful perfidy, as is the taking ofhostages. Modern laws of war, such as the 1949 Geneva Conventions, also includeprohibitions on attacking doctors, ambulances or hospital ships displaying a RedCross, a Red Crescent or other emblem related to the International Red Cross andRed Crescent Movement. It is also prohibited to fire at a person or vehicle bearing awhite flag, since that indicates an intent to surrender or a desire to communicate.


21/34

In either case, persons protected by the Red Cross/Crescent or white flag areexpected to maintain neutrality, and may not engage in warlike acts; in fact,engaging in war activities under a protected symbol is itself a violation of the lawsof war known as perfidy. Failure to follow these requirements can result in the loss ofprotected status and make the individual violating the requirements a lawful

military target.

Perfidy is a form of deception, in which one side promises to act in good faith(e.g., by raising a flag of surrender) with the intention of breaking that promiseonce the enemy has exposed themselves (e.g., by coming out of cover in order tocapture the surrendering forces).

The law of war is binding not only upon States as such but also upon individuals and,in particular, the members of their armed forces. Parties are bound by the laws of warto the extent that such compliance does not interfere with achieving legitimatemilitary goals. For example, they are obliged to make every effort to avoid damagingpeople and property not involved in combat, but they are not guilty of a war crime if a bomb

mistakenly hits a residential area. By the same token, combatants that intentionally useprotected people or property as shields or camouflage are guilty of violations oflaws of war and are responsible for damage to those that should be protected.

When may a state be not be liable under the Laws of War? If the wronged state launches

a counter-attack against the aggressor states forces.

Actors in a war:CombatantsMercenary

SpyPrisoners of WarCivilians

Combatants, Mercenaries, SpiesA lawful combatant is a person who commits belligerent acts, and, when captured,is treated as a POW. A lawful combatant cannot be held personally responsible forviolations of civilian laws that are permissible under the laws and customs of war;and if captured, a lawful combatant has to be treated as a prisoner of war by theenemy Power under the conditions laid down in the Third Geneva Convention.

An unlawful combatant is someone who commits belligerent acts but does notqualify for POW status under GCIII Articles 4 and 5. If there is any doubt aboutwhether a detained alleged combatant is a "lawful combatant" then the combatantmust be held as a prisoner of war until his or her status has been determined by "acompetent tribunal". If that tribunal rules that a combatant is an "unlawful combatant"then the person's status changes to that of a civilian which may give them some rightsunder the Fourth Geneva Convention.


22/34

An unlawful combatant or unprivileged combatant/belligerent is a civilian whodirectly engages in armed conflictin violation of the laws of war. An unlawfulcombatant may be detained or prosecuted under the domestic law of the detaining state forsuch action.

It is likely that if they are found to be an "unlawful combatant" by "a competent tribunal"

under GCIII Article 5, and if they are a protected person under GCIV, that the Party to theconflict will invoke GCIV Article 5. In which case, the "unlawful combatant" does not havethe "rights and privileges under the present Convention as would, if exercised in the favor ofsuch individual person, be prejudicial to the security of such State." They do, however,retain the right "to be treated with humanity and, in case of trial, shall not bedeprived of the rights of fair and regular trial prescribed by the present Convention.

If, after a "fair and regular trial", the individual in question is found guilty of a crime, thenthe "unlawful combatant" can be punished by whatever lawful methods are availableto the party to the conflict.

Combatants who do not qualify for prisoner of war status

(General Rule) If the combatant is engaged in "armed conflict not of an internationalcharacter" then under the Article 3 of the general provisions of the Geneva Conventionsthey should be "treated humanely", and if tried "sentences must ... be pronounced bya regularly constituted court."

The last time that American and British unlawful combatants were executed after "aregularly constituted court" was the Luanda Trial as mercenaries.

Under Article 47 of Protocol I (Additional to the Geneva Conventions of 12 August 1949, andrelating to the Protection of Victims of International Armed Conflicts) it is stated in the firstsentence "A mercenary shall not have the right to be a combatant or a prisoner ofwar."

Unlawful combatants are likewise subject to capture and detention, but in addition theyare subject to trial and punishment by military tribunals for acts which render theirbelligerency unlawful.The spy who secretly and without uniform passes the military lines ofa belligerent in time of war, seeking to gather military information and communicate it tothe enemy, oran enemy combatant who without uniform comes secretly through the linesfor the purpose of waging war by destruction of life or property(saboteur), are familiarexamples of belligerents who are generally deemed not to be entitled to the status ofprisoners of war, but to be offenders against the law of war subject to trial and punishmentby military tribunals.

Espionage or spying involves a government or individual obtaining information thatis considered secret or confidential without the permission of the holder of the

information. Espionage is inherently clandestine, as it is taken for granted that it isunwelcome and, in many cases, illegal and punishable by law. It is a subset ofintelligence gathering - which otherwise may be conducted from public sources and usingperfectly legal and ethical means.

Terrorism is the systematic use of terror, especially as a means of coercion. In theinternational community, however, terrorism has no universally agreed, legally binding,criminal law definition. Common definitions of terrorism refer only to those violent actswhich are intended to create fear (terror), are perpetrated for a religious, political or,


23/34

ideological goal; and deliberately target or disregard the safety of non-combatants(civilians). Some definitions now include acts of unlawful violence and war. The use ofsimilar tactics by criminal organizations for protection rackets or to enforce a code of silenceis usually not labeled terrorism though these same actions may be labeled terrorism whendone by a politically motivated group.

Spies and terrorists are only protectedby the laws of warif the power which holdsthem is in a state of armed conflict or war anduntil they are found to be anunlawful combatant. Depending on the circumstances, they may be subject to civilian lawor military tribunal for their acts and in practice have been subjected to torture and/orexecution. The laws of war neither approve nor condemn such acts, which fall outside theirscope. Countries that have signed the UN Convention Against Torture have committedthemselves not to use torture on anyone for any reason.

Targeted KillingTargeted killing is the intentional killing, by a government or its agents, of acivilian or "unlawful combatant" targeted by the government, who is not in the

government's custody. The target is a person who is allegedly taking part in an armedconflict or terrorism, whether by bearing arms or otherwise, who has thereby lostthe immunity from being targeted that he would otherwise have under the Third GenevaConvention. Note that this is a different term and concept from that of "targeted violence"as used by specialists who study violence.

Legal justification : In the legal world, Georgetown Law Professor Gary Solis, in his 2010book entitled The Law of Armed Conflict: International Humanitarian Law in War, writes:"Assassinations and targeted killings are very different acts". The use of the termassassination is opposed, as it denotes murder, whereas people who are allegedlyterrorists are targeted in self-defense, and thus it is viewed as a killing, but not acrime. Judge Abraham Sofaer, former federal judge for the U.S. District Court for the

Southern District of New York, wrote on the subject:

When people call a targeted killing an "assassination," they are attempting topreclude debate on the merits of the action. Assassination is widely defined asmurder, and is for that reason prohibited in the United States.... U.S. officialsmay not kill people merely because their policies are seen as detrimental toour interests.... But killings in self-defense are no more"assassinations" in international affairs than they are murders whenundertaken by our police forces against domestic killers. Targetedkillings in self-defense have been authoritatively determined by thefederal government to fall outside the assassination prohibition.

Prisoner of WarA prisoner of war (POW, PoW, PW, P/W, WP, PsW) or enemy prisoner of war(EPW) is a person, whether civilian or combatant, who is held in custody by an enemypower during or immediately after an armed conflict.

Hors de CombatHors de combat, literally meaning "outside the fight", is a French term used in diplomacyand international law to refer to soldiers who are incapable of performing their


24/34

military function. Examples include a downed fighter pilot, as well as the sick, wounded,detained, or otherwise disabled. Soldiers hors de combat are normally granted specialprotections according to the laws of war, sometimes including prisoner of war status.

Civilian

A non-combatant civilian "in the hands" of an enemy or an Occupying Power often gainsrights through the Geneva Convention Relative to the Protection of Civilian Persons in Timeof War, 12 August 1949 (GCIV), if they qualify as a "protected person".

If the individual fulfills the criteria as a protected person, they are entitled to all theprotections mentioned in GCIV. It should be emphasized that, in a war zone, a nationalof a neutral state, with normal diplomatic representation, is not a protectedperson under GCIV.

If a combatant does not qualify as a POW, then, if they qualify as a protected person, theyreceive all the rights which a non-combatant civilian receives under GCIV, but the party tothe conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are 5and 42.

Civil ResistanceThe term civil resistance, alongside the term nonviolent resistance, is used to describepolitical action that relies on the use of non-violent methods by civil groups to challenge aparticular power, force, policy or regime. (EDSA and Egypt Revolutions come into thiscategory)

Collective PunishmentCollective punishment is the punishment of a group of people as a result of thebehavior of one or more other individuals or groups. The punished group may often

have no direct association with the other individuals or groups, or direct control over theiractions. In times of war and armed conflict, collective punishment has resulted in atrocities,and is a violation of the laws of war and the Geneva Conventions. Historically, occupyingpowers have used collective punishment to retaliate against and deter attacks on theirforces by resistance movements (e.g. destroying whole towns and villages where suchattacks have occurred).

International Humanitarian LawInternational humanitarian law (IHL), or the law of armed conflict, is the law thatregulates the conduct of armed conflicts (jus in bello). It comprises "the Geneva

Conventions and the Hague Conventions, as well as subsequent treaties, case law, andcustomary international law." It defines the conduct and responsibilities of belligerentnations, neutral nations and individuals engaged in warfare, in relation to each other and toprotected persons, usually meaning civilians.

Serious violations of international humanitarian law are called war crimes.International humanitarian law, jus in bello, regulates the conduct of forces whenengaged in war or armed conflict. It is distinct fromjus ad bellum which regulatesthe conduct of engaging in war or armed conflict and includes crimes against


25/34

peace and of war of aggression. Together thejus in bello and jus ad bellumcomprise the two strands laws of war governing all aspects of international armedconflicts.

The law is mandatory for nations bound by the appropriate treaties. There are also othercustomary unwritten rules of war, many of which were explored at the Nuremberg War

Trials. By extension, they also define both the permissive rights of these powers as well asprohibitions on their conduct when dealing with irregular forces and non-signatories.

Basic rules of IHL

1. Persons hors de combat (outside of combat) and those not taking part inhostilities shall be protected and treated humanely.

2. It is forbidden to kill or injure an enemy who surrenders or who is hors decombat.

3. The wounded and sick shall be cared for and protected by the party to theconflict which has them in its power. The emblem of the "Red Cross," or of the "RedCrescent," shall be required to be respected as the sign of protection.

4. Captured combatants and civilians must be protected against acts ofviolence and reprisals. They shall have the right to correspond with theirfamilies and to receive relief.

5. No one shall be subjected to torture, corporal punishment or cruel ordegrading treatment.

6. Parties to a conflict and members of their armed forces do not have an unlimitedchoice of methods and means of warfare.

7. Parties to a conflict shall at all times distinguish between the civilianpopulation and combatants. Attacks shall be directed solely against militaryobjectives.

Principle of Distinction in the conduct of armed conflict. -at all times distinguishbetween the civilian population and combatants. Attacks shall be directed solely againstmilitary objectives.

BelligerencyMilitary occupation/belligerent occupation is effective provisional control of a certainpower over a territory which is not under the formal sovereignty of that entity, without thevolition of the actual sovereign. The intrinsically temporary nature of occupation, when noclaim for permanent sovereignty is made by the occupying entity, distinguishes occupationfrom both colonialism or annexation.

Belligerent occupation/Military occupation(http://legal-dictionary.thefreedictionary.com/Belligerent+occupation)Military occupation occurs when a belligerent state invades the territory of anotherstate with the intention of holding the territory at least temporarily. While hostilitiescontinue, the occupying state is prohibited by International Law from annexing theterritory or creating another state out of it, but the occupying state may establishsome form of military administration over the territory and the population. Underthe Martial Law imposed by this regime, residents are required to obey the occupyingauthorities and may be punished for not doing so. Civilians may also be compelled to


26/34

perform a variety of nonmilitary tasks for the occupying authorities, such as therepair of roads and buildings, provided such work does not contribute directly to theenemy war effort.

Although the power of the occupying army is broad, the military authorities areobligated under international law to maintain public order, respect private property, and

honor individual liberties. Civilians may not be deported to the occupant's territory toperform forced labor nor impressed into military service on behalf of theoccupying army. Although measures may be imposed to protect and maintain theoccupying forces, existing laws and administrative rules are not to be changed.Regulations of the Hague Conventions of 1907 and, more importantly, the 1949 Genevaconvention for the Protection of Civilian Persons in Time of War have attempted to codifyand expand the protection afforded the local population during periods of militaryoccupation.

Civil warA civil war is a war between organized groups within the same nation state or

republic, or, less commonly, between two countries created from a formerly-united nation state. The aim of one side may be to take control of the country or aregion, to achieve independence for a region, or to change government policies.

The Geneva Conventions do not specifically define the term "civil war". They do, however,describe the criteria for acts qualifying as "armed conflict not of an international character",which includes civil wars. Among the conditions listed are four requirements:

The party in revolt must be in possession of a part of the national territory. The insurgent civil authority must exercise de facto authority over the

population within the determinate portion of the national territory. The insurgents must have some amount ofrecognition as a belligerent. The legal Government is "obliged to have recourse to the regular militaryforces against insurgents organized as military."

Leve en masse (French pronunciation: [lve ms], literally "massed levy" or "massuprising") is a French term for mass conscription. It denotes a short-term requisition of allable-bodied men to defend the nation and has to be viewed in connection with the politicalevents in revolutionary France, namely the new concept of the democratic citizen asopposed to a royal subject.

Ruses of warA ruse of war, or ruse de guerre, is an action taken by a belligerent in warfare to foolthe enemy in order to gain intelligence or a military advantage against an enemy.

Good faith in dealing with an enemy must be observed as a rule of conduct; but this doesnot prevent measures such as using spies and secret agents, encouraging defection orinsurrection among the enemy civilian population, corrupting enemy civilians or soldiers bybribes, or inducing the enemys soldiers to desert, surrender, or rebel. In general, a


27/34

belligerent may resort to those measures for mystifying or misleading the enemy againstwhich the enemy ought to take measures to protect itself.

Ruses of war are legitimate so long as they do not involve treachery or perfidy onthe part of the belligerent resorting to them. They are, however, forbidden if theycontravene any generally accepted rule.

When landmines were not marked or reported, or when they are disguised, theyare perfidious per the Geneva Conventions, annex 10 October 1980:

traps that are apparently harmless portable objects, that contain an explosivecharge, and are specifically designed to produce a detonation when you move orapproach it;

traps that are attached or associated in any way with: emblems, signs, or signals internationally recognized; sick, wounded, or dead; burial, cremation, or graves; facilities, equipment, supplies, or medical transportation; toys for children or other portable objects; food or drink; kitchen utensils or appliances; objects of a religious nature; historic monuments, works of art, or places of worship which constitute a cultural or

spiritual heritage of people.

Principles of Proportionality and Distinction in Armed ConflictUnder international humanitarian law governing the legal use of force in an armed conflict,proportionality and distinction are important factors in assessing military necessity.

Principle of Proportionality in armed conflict

The harm caused to civilians or civilian property must be proportional and not excessivein relation to the concrete and direct military advantage anticipated by an attack ona military objective.

Principle of Distinction in armed conflictDistinction is a principle under international humanitarian law governing the legal use offorce in an armed conflict, whereby belligerents must distinguish betweencombatants and civilians.

DistinctionUnder international humanitarian law and the Rome Statute, the death of civiliansduring an armed conflict, no matter how grave and regrettable, does not in itself

constitute a war crime. International humanitarian law and the Rome Statute permitbelligerents to carry out proportionate attacks against military objectives, even when it isknown that some civilian deaths or injuries will occur. A crime occurs if there is anintentional attack directed against civilians (principle of distinction) (Article8(2)(b)(i)) or an attack is launched on a military objective in the knowledge thatthe incidental civilian injuries would be clearly excessive in relation to theanticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).

Article 8(2)(b)(iv) criminalizes:


28/34

Intentionally launching an attack in the knowledge that such attack will causeincidental loss of life or injury to civilians or damage to civilian objects orwidespread, long-term and severe damage to the natural environment whichwould be clearly excessive in relation to the concrete and direct overallmilitary advantage anticipated;Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977

Additional Protocol I to the 1949 Geneva Conventions, but restricts thecriminal prohibition to cases that are "clearly" excessive. The application ofArticle 8(2)(b)(iv) requires, inter alia, an assessment of:(a) the anticipated civilian damage or injury;(b) the anticipated military advantage;(c) and whether (a) was "clearly excessive" in relation to (b).

Luis Moreno-OcampoChief Prosecutor, ICC

Military NecessityMilitary necessity, along with distinction, and proportionality, are three importantprinciples of international humanitarian law governing the legal use of force in an armedconflict. Military necessity is governed by several constraints: an attack or action must beintended to help in the military defeat of the enemy, it must be an attack on amilitary objective, and the harm caused to civilians or civilian property must beproportional and not excessive in relation to the concrete and direct militaryadvantage anticipated.

Military necessity was defined in the 1863 Leiber Code, which bound Union forces during theCivil War. The Codes three articles on military necessity provided the touchstone forsubsequent development of the principle:

Art. 14. Military necessity, as understood by modern civilized nations,consists in the necessity of those measures which are indispensable forsecuring the ends of the war, and which are lawful according to themodern law and usages of war.

Art. 15. Military necessity admits of all direct destruction of life or limb ofarmed enemies, and of other persons whose destruction is incidentallyunavoidable in the armed contests of the war . . . . Men who take up armsagainst one another in public war do not cease on this account to be moralbeings, responsible to one another and to God.

Art. 16. Military necessity does not admit of crueltythat is, the inflictionof suffering for the sake of suffering or for revenge . . . . [A]nd, in general,

military necessity does not include any act of hostility which makes thereturn to peace unnecessarily difficult.

~ Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian Law:Preserving the Delicate Balance


29/34

Command Responsibility the responsibility of a commanding officer over the conduct of his

subordinates acting upon his authority or orders.

Superior Responsibility the responsibility of a civilian to be held accountable over the

conduct of every person who acts under his authority.

Doctrine of Humanitarian InterventionHumanitarian intervention is a state's use of "military force against another statewhen the chief publicly declared aim of that military action is ending human-rightsviolations being perpetrated by the state against which it is directed." There is noone standard or legal definition of humanitarian intervention; the field of analysis (such aslaw, ethics, or politics) often influences the definition that is chosen. Differences in definitioninclude variations in whether humanitarian interventions is limited to instances where thereis an absence of consent from the host state; whether humanitarian intervention is limitedto punishment actions; and whether humanitarian intervention is limited to cases wherethere has been explicit UN Security Council authorization for action. There is, however, ageneral consensus on some of its essential characteristics:

Humanitarian intervention involves the threat and use of military forces as acentral feature.

It is an intervention in the sense that it entailsinterfering in the internal affairsof a state by sending military forces into the territory or airspaceof asovereign state that has not committed an act of aggression against anotherstate.

The intervention is in response to situations that do not necessarily pose directthreats to states strategic interests, but instead is motivated by humanitarianobjectives.

The subject of humanitarian intervention has remained a compelling foreign policy issue,

especially since NATOs intervention in Kosovo in 1999, as it highlights the tensionbetween the principle of state sovereignty a defining pillar of the UN system andinternational law and evolving international norms related to human rights and theuse of force. Moreover, it has sparked normative and empirical debates over itslegality, the ethics of using military force to respond to human rights violations,when it should occur, who should intervene, and whether it is effective.

International Humanitarian Law Note: Geneva Convention is only a part of this.

Protected persons under International Humanitarian Law(http://www.icrc.org/eng/war-and-law/protected-persons/other-protected-

persons/overview-other-protected-persons.htm)Protected persons in wartime are all those who benefit from protection undertreaty-based and customary international humanitarian law. These persons arespecifically the sick, wounded, shipwrecked, prisoners and civilians not taking directpart in the hostilities, but the law also covers others such as medical and religiouspersonnel, humanitarian workers and civil defense staff.


30/34

PostliminiumThe principle ofpostliminium, as a part of public international law, is a specific version ofthe maxim ex injuria jus non oritur(law does not arise from injustice), providing for theinvalidity of all illegitimate acts that an occupant may have performed on a giventerritory after its recapture by the legitimate sovereign. Therefore, if the occupanthas appropriated and sold public or private property that may not legitimately be

appropriated by a military occupant, the original owner may reclaim that property withoutpayment of compensation.

Uti possidetisretention of properties after belligerent occupation of a belligerent statesmilitary forces.

Uti possidetis (Latin for "as you possess") is a principle in international law thatterritory and other property remains with its possessor at the end of a conflict,unless otherwise provided for by treaty; if such a treaty doesn't include conditionsregarding the possession of property and territory taken during the war, then the principleof uti possidetis will prevail.

Annexation, Amalgamation and Cession distinguishedAnnexation (Latin ad, to, and nexus, joining) is the de jure incorporation of someterritory into another geo-political e

Documents

Public International Law Discussions (With Add Ons)