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Ans. The suit filed by KMM should be dismissed. It The dictatorial regime of President A of the
is true that the details of the treaty negotiation, Republic of Gordon was toppled by a
including the offers and counter-offers between combined force led by Gen. Abe, former royal
the Philippine Government and United States, are guards and the secessionist Gordon People’s
matters of public concern. However, it is also well- Army. The new government constituted a
established in jurisprudence that neither the right Truth and Reconciliation Commission to look
to information nor the policy of full public into the serious crimes committed under
disclosure is absolute, there being matters which, President A’s regime. After the hearings, the
albeit of public concern or public interest, are Commission recommended that an amnesty
recognized as privileged in nature. law be passed to cover even those involved
in mass killings of members of indigenous
As held in the recent case of Akbayan vs. Aquino groups who opposed President A.
(G.R. No. 170516, July 16, 2008), the privileged International human rights groups argued
character of diplomatic negotiations has been that the proposed amnesty law is contrary to
recognized in this jurisdiction. In discussing valid international law. Decide with reasons. (4%)
limitations on the right to information, the
Supreme Court in Chavez v. PCGG (360 Phil. 133, Suggested Answer:
764 [1998]) held that “information on inter-
government exchanges prior to the conclusion of The proposed amnesty law is contrary to
treaties and executive agreements may be subject international law.
to reasonable safeguards for the sake of national
The indigenous group may constitute an ethnic an international obligation; and (d) the nature or
group which is protected by the law on Genocide. extent of the reparation to be made for the breach
If the mass killing was committed with the intent of an international obligation. (Article 36, ICJ
to destroy (dolus specialis) the said ethnic group Statute) The ICJ also has jurisdiction to give an
as such, in whole or in part, then the crime of advisory opinion on any legal question as may be
Genocide was committed. The international norm requested by the General Assembly or the
for the prevention, prosecution and punishment of Security Council or on legal questions arising
Genocide is a peremptory (just cogens) norm of within the scope of the activities of other organs
international law and, therefore, non-derogable. and specialized agencies of the U.N. upon their
(Prosecutor v. Blagojevic and Jokic, ICTY, January request and when so authorized by the General
17, 2005) Assembly. (Article 96, U.N. Charter)
Even if the mass killing was not committed with As to jurisdiction over the persons or parties
the dolus specialis to destroy the ethnic group as (ratione personae), the ICC shall have the power
such, the same may still constitute the Crime to exercise its jurisdiction over persons for the
Against Humanity of Extermination if the mass most serious crimes of international concern, and
killing was widespread and systematic or the War shall be complementary to national criminal
Crime of Intentionally Attacking Civilians if the jurisdictions. (Art. 1, Rome Statute) On the other
same took place in the context of or was hand, only States may be parties in cases before
associated with an armed conflict. The norm for the ICJ and their consent is needed for the ICJ to
the prevention, prosecution and punishment of acquire jurisdiction. (R. Sarmiento, Public
crimes against humanity and war crimes are also International Law Bar Reviewer, 2009 Revised
customary norms of international and therefore Edition, p. 185)
binding on all States. (Prosecutor v. Stakic, ICTY,
July 31, 2003) III.
Thus, Republic of Gordon has the obligation under A, a British photojournalist, was covering the
international law to prosecute and punish all those violent protests of the Thai Red-Shirts
involved in the mass killing of the members of the Movement in Bangkok. Despite warnings
indigenous group and providing amnesty to those given by the Thai Prime Minister to
involved is violative of this obligation. foreigners, specially journalists, A moved
around the Thai capital. In the course of his
II. coverage, he was killed with a stray bullet
which was later identified as having come
Compare and contrast the jurisdiction of the from the ranks of the Red-Shirts. The wife of
International Criminal Court and A sought relief from Thai authorities but was
International Court of Justice. (3%) refused assistance.
“A State which resorts to retorsion in Article 2(2) of the U.N. Convention Against Torture
international law provides that “No exceptional circumstances
whatsoever, whether a state of war or a threat of
A. must ensure that all states consent to its war, internal political in stability or any other
act.” public emergency, may be invoked as a
B. cannot curtail migration from the justification of torture.”
offending state.”
C. can expel the nationals of the offending Because of the importance of the values it
state.” protects, the prohibition of torture has evolved
D. should apply proportionate response into a peremptory norm or jus cogens, that is, a
within appreciable limit.” norm that enjoys a higher rank in the international
E. None of the above. hierarchy than treaty law and even ordinary
customary rules. The most conspicuous
Explain your answer. (2%) consequence of this higher rank is that the norm
prohibiting torture cannot be derogated from by
Suggested Answer: States through international treaties or local or
special customs or even general customary rules
D. “A State which resorts to retorsion in not endowed with the same normative force.
international law should apply proportionate (Prosecutor v. Furundzija, ICTY, December 10,
response within appreciable limits.” 1998)
Which statement best completes the In international practice, the "associated state"
following phrase: (1%) arrangement has usually been used as
a transitional device of former colonies on their
“Freedom from torture is a right way to full independence. Examples of states that
have passed through the status of associated
A. subject to derogation when national states as a transitional phase are Antigua, St.
security is threatened.” Kitts-Nevis-Anguilla, Dominica, St. Lucia, St.
Vincent and Grenada. All have since become
independent states. (Henkin, et al., International
Law: Cases and Materials, 2nd ed., 274 (1987))