MLQU School of Law

Arlegui St., Quiapo Manila

LAW STUDENT COUNCIL
2009 CENTRALIZED BAR OPERATIONS

INTERNATIONAL HUMAN RIGHTS LAW

1. Scope of Human Rights. Those that relate to an individual’s social,

economic, cultural, political and civil relations … along with what is
generally considered to be his inherent and inalienable rights,
encompassing almost all aspects of life (Universal Declaration of Human
Rights).
2. Human Rights defined. Those inalienable and fundamental rights that are essential for life as human
beings (Bernas).

3. Roots of Human Rights Law. The concepts of humanitarian intervention, self-determination, and
providing relief to the wounded and other victims of armed conflicts.

4. Modern International Human Rights Laws:

a) The United Nations Charter sought to acknowledge the importance of human rights and
established it as a matter of international concern. Article I(3) states that one of the purposes of
the UN is “to achieve international cooperation in x x x promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex, language, or
religion”. Articles 55 and 56 of the Charter set out the basic human rights obligations of the UN
and its member states.

b) The Universal Declaration of Human Rights, adopted on December 10, 1948, was the first
instrument to articulate the fundamental rights and freedoms of all people. Among the most basic
rights recognized are that all human beings are born free and equal in dignity and rights; that
everyone has the right to life, liberty and security of person; that no one shall be held in slavery or
servitude, nor be subjected to torture or cruel, inhuman and degrading treatment or punishment,
or to arbitrary arbitrary arrest, detention or exile. Other rights are the rights to a fair and public
hearing, to presumption of innocence, to privacy of family, home and correspondence, to freedom
of movement and residence, to a nationality, to marry and found a family, to asylum from
persecution, to own property, to freedom of expression, peaceful assembly and association, and
to take part in the government of his country. Also guaranteed are the right to social security, to
rest and leisure, to education, etc..

c) The International Covenant on Civil and Political Rights, adopted on December 16, 1966, and
entered into force on March 23, 1976. Recognized are the right to self-determination; the equal
right of men and women in the enjoyment of all civil and political rights; the inherent right to life,
the right to liberty and security of person; to be informed, at the time of arrest, of the reasons for
the arrest and to be brought promptly before a judge; the right to recognition everywhere as a
person; the right to free expression, peaceful assembly, association; freedom of thought,
conscience and religion; etc.

i) The Optional Protocol adopted on December 16, 1966, which entered

into force on March 23, 1976, allows victims of human rights
violations to file complaints against states which have ratified the
protocol. (The Philippines ratified this protocol.)
ii) The Second Optional Protocol adopted on December 15, 1989 and entered into force on
July 11, 1991, aims at the abolition of the death penalty. (The Philippines is not a party to
this.)

d) The International Covenant on Economic, Social and Cultural Rights, adopted on December 16,
1966, and came into force on January 3, 1976. Among the rights recognized are the right of self-
determination; to social security and social insurance; to form and join trade unions; to the
enjoyment of the highest attainable standard of physical and mental health; the right to education,
as well as the right to literary or artistic production and to scientific research and creative activity.

(NOTE: These documents b, c, and d (with the Protocols) comprise the International Bill of Human
Page1

Rights. The Philippines is a party to all except the Second Protocol.)

 MLQU School of Law
Arlegui St., Quiapo Manila
LAW STUDENT COUNCIL
2009 CENTRALIZED BAR OPERATIONS

5. The UN Commission on Human Rights is a subsidiary organ of the

Economic and Social Council of the UN. Established in 1946, it undertakes
two principal actiivities: (a) holding annual public debates where
governments and NGOs identify country specific situates of possible
human rights violations; and (b) engaging in studies and investigations of
particular situations as the Commission may deem appropriate.

INTERNATIONAL HUMANITARIAN LAW

1. Definition. International Humanitarian Law is the body of rules which, in

wartime, protects people who are not or are no longer participating in the
hostilities, its central purpose is to limit and prevent human suffering in
times of armed conflict. The rules are to be observed not only by
governments and their armed forces, but also by armed opposition groups
and any other parties to a conflict.
2. Distinguished from Human Rights Law. Humanitarian law applies in situations of armed conflict,
whereas human rights, or at least some of them, protect the individual at all times, in war and in
peace alike. While the purpose of humanitarian law is to protect victims by endeavoring to limit the
suffering caused by war, human rights seek to protect the individual and enhance his development.

3. Sources of Humanitarian Law. The first Geneva Convention of 1864 dealt exclusively with care for
wounded soldiers. It was later adapted to cover warfare at sea and prisoners of war. In 1949, the
Conventions were revised and expanded into the following: (a) Convention for the Amelioration of the
Condition of Wounded and Sick in Armed Forces in the Field, Geneva, 12 August, 1949; (b)
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, Geneva, 12 August 1949; (c) Convention relative to the Treatment of Prisoners
of War, Geneval, 12 August 1949; (d) Convention relative to the Protection of Civilian Persons in
Times of War, Geneva, 12 August 1949. In 1977, two additional Protocols were added: (a) Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the Victims of International
Armed Conflict, 8 June 1977; and (b) Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977.

4. Essential Rules:

a) The parties to a conflict must at all times distinguish between the civilian population and
combatants in order to spare the civilian population and civilian property. Neither the civilian
population as a whole, nor individual civilians, may be attacked.
b) Attacks may be made solely against military objectives. People who do not or can no longer take
part in the hostilities are entitled to respect for their lives and for their physical and mental
integrity. Such people must in all circumstances be protected and treated with humanity, without
any unfavorable distinction whatsoever.
c) It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the
fighting.
d) Neither the parties to the conflict nor members of their armed forces have an unlimited right to
choose methods and means of warfare. It is forbidden to use weapons or methods of warfare
that are likely to cause unnecessary losses or excessive suffering.
e) The wounded and the sick must be collected and cared for by the party to the conflict which has
them in its power. Medical personnel and medical establishments, transports and equipment must
be spared.
f) The Red Cross or Red Crescent on a white background is the distinctive sign indicating that such
persons and objects must be respected.
g) Captured combatants and civilians who find themselves under the authority of the adverse party
are entitled to respect for their lives, their dignity, their personal rights and their political, religious
and other convictions. They must be protected against all acts of violence or reprisal. They are
entitled to exchange news with their families and receive aid. They must enjoy basic judicial
guarantees.
Page1
 MLQU School of Law
Arlegui St., Quiapo Manila
LAW STUDENT COUNCIL
2009 CENTRALIZED BAR OPERATIONS

THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

1. Creation. At its 52nd session, the UN General Assembly decided to convene the UN Diplomatic
Conference of Plenipotentiaries, subsequently held in Rome, from 15 June to 17 July 1998, to
finalized and adopt a convention on the establishment of a permanent international court.

2. Rationale. An international criminal court was the missing link in the international legal system. The
ICJ at The Hague handles only cases between States, not individuals. Without an international
criminal court to deal with individual responsibility as an enforcement mechanism, acts of genocide
and egregious violations of human rights often go unpunished. In the last 50 years, there have been
many instances of crimes against humanity and war crimes for which no individuals have been held
accountable.

3. Basis. The Judgment of the Nuremberg Tribunal stated that crimes

against international law are committed by men, not by abstract entities,
and only by punishing individuals who commit such crimes can the
provisions of international law be enforced, thus establishing the principal
of individual criminal accountability for all who commit such acts as a
cornerstone of international criminal law.

4. Entry into Force. The Statute entered into force on 1 July 2002. The Philippines signed on 28
December 2000, but has not yet ratified it, and thus, is not yet a State party.

5. Jurisdiction. As a pre-condition to the Court’s exercise of jurisdiction, a State must become a party to
the Statute.

6. Doctrine of Complimentarity. The Court must determine if a case is already being investigated or
prosecuted by a State which has jurisdiction over it. It can only assume jurisdiction if the State is
unwilling or unable genuinely to carry out the investigation or prosecution.

7. Prospectivity. No person shall be held criminally liable under the Statute for conduct prior to the entry
into force of the Statute.

8. Requirements for Conviction. The criminal elements must have been committed with intent and
knowledge. No criminal responsibility shall attached if any of the following grounds are present:
mental disease, intoxication, self-defense, duress and mistake of fact.

9. Order of a Government. A crime committed by a person pursuant to an order of a government or

superior shall not relieve the person of criminal responsibility unless he had the legal obligation to
obey the order, thinking it to be lawful, and it was not manifestly unlawful. Orders to commit genocide
or crimes against humanity are manifestly unlawful.

10. Crimes Covered. Only the most serious crimes are to be prosecuted: to include genocide, crimes
against humanity, war crimes and crimes against aggression. The crimes shall not be subject to any
statute of limitation.

11. Genocide. This refers to acts such as killing, or causing serious bodily or mental harm to members of
a group, deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction, imposing measures intended to prevent births within the group, or forcibly transferring
children of the group to another group. These acts should be done with intent to destroy, in whole or
in part, a national, racial, or religious group.

12. Crimes against humanity. This consists of acts of murder, extermination, enslavement, deportation,
imprisonment, torture, rape, persecution of an identifiable group, enforced disappearance of persons,
apartheid, and other such inhumane acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack.

13. War Crimes. These are essentially grave breaches of the Geneva Convention of 12 August 1949,
and other serious violations of the laws and customs applicable to international armed conflict within
Page1

the established framework of international law. The Statute contains an extensive list of acts which
may be considered as “war crimes”.
 MLQU School of Law
Arlegui St., Quiapo Manila
LAW STUDENT COUNCIL
2009 CENTRALIZED BAR OPERATIONS

Page1
 MLQU School of Law
Arlegui St., Quiapo Manila
LAW STUDENT COUNCIL
2009 CENTRALIZED BAR OPERATIONS

14. Aggression. The use of armed force by a State against the sovereignty, territorial integrity or political
independence of another State, or any other manner inconsistent with the UN Charter.

15. Place of Trial; Languages. The place of trial shall be at the seat of the Court in The Hague. The
official languages shall be Arabic, English, French, Russian and Spanish. The working languages of
the Court shall be in English and French.

16. Penalties. The Court may impose the penalty of life imprisonment when justified by the extreme
gravity of the crime and the individual circumstances of the convicted person. Ordinarily, the court
can order imprisonment for a period not to exceed 30 years, plus the imposition of fines and
forfeitures.

17. Service of Sentence. A sentence of imprisonment shall be served in a State designated by the Court
from a list of States which indicated their willingness to accept sentenced persons.

********

Page1