Shifting from Human Rights Law to International Humanitarian Law: Extrajudicial Killings and Enforce

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Shifting from Human Rights Lawto International
Humanitarian Law Extrajudicial Killings and
Enforced Disappearances12 October 2007Jovito R.
Salonga CenterSilliman University

• Raul C. Pangalangan
• Professor of Law
• University of the Philippines

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Historical Origins

• International Human Rights Law
• Intl Covenant on Civil and Political Rights
• Intl Covenant on Econ, Social and Cultural Rights
• Convention on the Rights of the Child
• CEDAW
• CERD
• Conv against Torture

• International Humanitarian Law
• 1949 Geneva Conventions
• 1977 Protocol Additional II on Non-International
  Armed Conflicts
• To protect civilians, POWs and injured combatants

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Compare to Plunder definition

• Misappropriation, conversion, misuse, or
  malversation of public funds or raids on the
  public treasury
• Receiving kickbacks in connection with any
  government contract by reason of public office
• Illegal or fraudulent conveyance or disposition
  of government assets
• Establishing monopolies to benefit particular
  persons or special interests
• Taking undue advantage of official position to
  unjustly enrich himself
• BUT IN ADDITION
• Amasses, accumulates or acquires ill-gotten
  wealth through a combination or series of overt
  criminal acts
• In the aggregate amount or total value of at
  least P50 million pesos

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Compare to Terrorism

• Piracy in General and Mutiny (RPC 122)
• Rebellion or Insurrection (RPC 134)
• Coup detat (RPC 134-a)
• Murder (RPC 248)
• Kidnapping and Serious Illegal Detention (RPC
  267)
• Crimes Involving Destruction (RPC 324)
• Arson (PD 1613)
• Anti-Hijacking Law (RA 6235)
• Anti-Piracy and Anti-Highway Robbery Law of 1974
  (PD 532 )
• Illegal and Unlawful Possession, Manufacture,
  Dealing in, Acquisition Disposition of Firearms,
  Ammunitions or Explosives (PD1866)

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But in addition

• Thereby sowing and creating a condition of
  widespread and extraordinary fear and panic among
  the populace
• In order to coerce the government to give in to
  an unlawful demand

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So how about disappearances?

• Civil and Political Rights Covenant
• Due process protection to life and physical
  integrity of the person
• Arbitrary deprivation of liberty
• Liberty of movement
• Anyone who is deprived of his liberty by arrest
  or detention shall be entitled to take
  proceedings before a court, in order that that
  court may decide without delay on the lawfulness
  of his detention and order his release if the
  detention is not lawful.

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International Human Rights

• Convention against Torture and Other Cruel,
  Inhuman or Degrading Treatment or Punishment
• Intentional infliction
• Severe pain or suffering, whether physical or
  mental
• For the purpose of
• Obtaining information or a confession
• Punishing him for an act
• Intimidating or coercing
• Inflicted by whom?
• By public official
• At the instigation of, with the consent or
  acquiescence of a a public official or any person
  acting in an official capacity.

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International Human Rights

• International Convention for the Protection of
  all Persons from Enforced Disappearance
  (Desaparecido Convention -- not signed nor
  ratified)
• Arrest, detention, abduction or any other form of
  deprivation of liberty
• By whom?
• Agents of the State
• Persons acting with the authorization, support or
  acquiescence of the State
• Followed by
• Refusal to acknowledge the deprivation of liberty
• Concealment of the fate or whereabouts of the
  disappeared person, which place such a person
  outside the protection of the law.

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International Human Rights

• International Convention for the Protection of
  all Persons from Enforced Disappearance
  (Desaparecido Convention -- not signed nor
  ratified)
• Individual responsibility for
• Failure to take all necessary and reasonable
  measures
• Within his or her power
• To prevent or repress the commission of an
  enforced disappearance
• To submit the matter to the competent authorities
  for investigation and prosecution

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International Humanitarian Law

• Grave Breaches of the 1949 Geneva Conventions
• Personal scope of application
• NON-COMBATANTS
• POWs
• Injured and sick COMBATANTS
• Crimes against Humanity
• Yamashita v. Styer

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International Humanitarian Law

• Entitled to respect for their person, honour and
  convictions and religious practices
• Prohibits willful killing or wilfully causing
  great suffering or serious injury to body or
  health
• Prohibits violence to the life, health and
  physical or mental well-being of persons, in
  particular murder as well as cruel treatment such
  as torture, mutilation or any form of corporal
  punishment
• Willfully depriving a prisoner of war or a
  civilian of the rights of fair and regular trial

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Rome Statute

• Arrest, detention, abduction or any other form of
  deprivation of liberty
• By whom?
• Agents of the State
• Persons acting with the authorization, support or
  acquiescence of the State
• Followed by
• Refusal to acknowledge the deprivation of liberty
• Concealment of the fate or whereabouts of the
  disappeared person, which place such a person
  outside the protection of the law.

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Enforced disappearance of persons

• IHL Rome Statute
• Arrest, detention or abduction of persons
• By whom? With the authorization, support or
  acquiescence of, a State
• Followed by
• Refusal to acknowledge that deprivation of
  freedom
• Refusal to give information on the fate or
  whereabouts of those persons
• With the intention of removing them from the
  protection of the law for a prolonged period of
  time.

• IHR Desaparecido Convention
• Arrest, detention, abduction or any other form of
  deprivation of liberty
• By whom? Agents of the State or persons acting
  with the authorization, support or acquiescence
  of the State
• Followed by
• Refusal to acknowledge the deprivation of liberty
• Concealment of the fate or whereabouts of the
  disappeared person
• Which place such a person outside the protection
  of the law.

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Contrast
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Exhaustion of domestic remedies

• International responsibility of state is NOT
  ENGAGED until national remedies are exhausted
• Applies to state responsibility under both IHR
  and IHL
• Exhaustion not required for individual criminal
  responsibility
• Two ways to characterize
• As a Procedural/Jurisdictional Pre-Requisite
• Denial of Justice as an independent breach