Monthly Archives: February 2012

Impunity for Nazi War Crimes

By Prof. Harry L. Roque, Jr.

The International Court of Justice recently promulgated a judgment which calls into question both the relevance and function of international law. Unwittingly, it  declared that Nazi Germany is entitled to impunity for acts of forced labor that it committed during World War II.

In its February 3, 2012 decision in the case of Germany vs. Italy, the court ruled that the principle of sovereign immunity from suits is a customary norm of international law that cannot be infringed unless waived by the state. This immunity subsists even if the claim against it is for violation of a peremptory norm, referred to as “jus cogens” in international law. It also ruled that state assets are also immune from execution

The case arose because of a series of Italian domestic court decisions awarding civil damages against Germany for forced labor committed during World War II.  While Germany has acknowledged that it committed grave breaches of international humanitarian law during the war, it nonetheless insists that claims against it for damages should be brought pursuant to its domestic law authorizing payment of compensation to individuals for these breaches and before German courts. Unfortunately, German courts barred compensation for forced labor for individuals with the status of a Prisoner of War. This is because the Germany insists that under the Geneva Conventions, POWs may be compelled to work by the detaining power.

In a case involving Luigi Ferrini who claimed to have been forcibly deported from Italy to Germany and made to work in a munitions factory, the Italian court ruled that Germany may not invoke state immunity for the commission of an international crime which at the same time, is covered by a jus cogens prohibition. The Court then awarded Ferrini damages and sought to enforce its decision against a real property owned by Germany in Italy. Hence, Germany’s resort to the ICJ.

The ICJ upheld Germany’s claim of immunity by ruling that under customary international law, the rule remains that a state is absolutely immune from suits for acts committed by its military troops in the territory of the forum. Furthermore, it stressed that under customary law, a violation of a jus cogens norm, even if acknowledged, as it was by Germany, cannot result in waiver of state immunity. In both points, the court enumerated a long list of state practice in the form of legislation and court decisions indicating that other than for Italian and Greek judicial decisions, the principle of state immunity as derived from the principle of sovereign equality of states remains to be firmly rooted in international law.

In ruling in the manner that it did, the ICJ  applied an already disregarded notion that international law is only about the application of legal rules. In fact, bulk of the Court’s opinion was devoted to an examination of what the law is, assuming perhaps that what is may be divorced from why it is law and what it seeks to accomplish. International law is law only because states accept it as such. While states may have varying reasons why they acknowledge it to be law, the fact remains that like all laws, international law forms part of normative system. It prescribes conduct deemed beneficial to all of humanity and prohibits conducts that are otherwise.

This means that in the application of rules, the Court should have considered what is more beneficial to humanity: the cold application of the principle of sovereign immunity or the primacy of protecting civilian and POWS in times of armed conflict. While it is true that sovereign equality of states is a foundational principle of the law, the same is true also of the principle that that human rights have also ceased to be purely domestic issue.

The fact that the ICJ gave primacy to the principle of sovereign immunity from suits ignores why these rules exist in the first place; that is, to protect the interests of individuals and not the interest of an artificial being that is a state. As some have noted, international law protects for instance, the environment—not because the ocean or the air should be protected as such. We do so ultimately because human beings require clean water and air.

True, the Court expressly said that its ruling does not affect the liability of state agents when they themselves commit egregious acts. But why should there be a distinction? Precisely because a state can only act only though its agent, there should be no distinction hence between suits against the state itself and against its agents.

The Court also engaged in face-saving when it said that its decision is without prejudice to the liability of the German state for the commission of an internationally wrongful act. But what use is this when victims are bereft of a remedy under domestic law? Who will authorize the award of compensation to the victims when current state practice still deny individuals a standing to bring claims under international law? Certainly, similar claims to that of Ferrini’s were rejected by the European Court of Human Rights on jurisdictional grounds.

There is clearly more merit in the lone dissenting opinion written by a former President of the Inter-American Court of Human Rights Judge Antonio Trindande: “The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labor.”

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Filed under Impunity, International Court of Justice, International Law, Nazi War Crimes, Sovereign Immunity

The scandalous nature of libel

By Romel Regalado Bagares

As a former journalist, I know intimately the terror of being made to face a criminal complaint that may eventually lead to a jail sentence: libel.

I was barely a month into my new job as a newspaperman in 1995  when I was slapped with a P5-million libel complaint before the Office of the Prosecutor in Pasay City. The complainant was a former Supreme Court justice, valedictorian of the illustrious Class of 1939 of the University of the Philippines College of Law and favored classmate to its most (in)famous alumnus  the late strongman Ferdinand Edralin  Marcos.

I had earlier reported on an entirely different complaint, one dealing with sexual harassment, filed with the National Bureau of Investigation (NBI) against the good justice by a young woman who worked for him as a legal researcher. The good justice  – he was already 79 years old at that time –  denied it of course, and his denial came on strong in the form of a libel suit against me and the legal researcher.

My first reaction when I read the subpoena from the Office of the Prosecutor was panic: I was a 20-year-old cub reporter who was earning a measly sum of P5,500.00 a month as a news reporter.  All told, my assets consisted of no more than a few hundred books, most of them bought second-hand and therefore cheap,  a diploma from the state university,  and  youthful bravado that was thinning fast as I contemplated a bleak future in jail and penury.

I remember being received at his Makati City office by one of the newspaper’s lawyers, the well-known litigator Rogelio Vinluan, for an interview that lasted an hour. A young associate lawyer took down notes. “You barely look the part, “ Atty. Vinluan chuckled when he first saw me. But he quickly calmed my fears and told me not to worry.

Indeed, I was still wet behind the ears, as old hands used to say, and already, I was facing a big libel suit. To the credit of Atty. Vinluan’s  litigation prowess, the suit was eventually dismissed. A few years later, I would sit for the first time as a working student in a class on Evidence in the evening program of the UP College of Law,  with Atty. Vinluan as my professor. I don’t think he recognized me as a former client nor did I dare remind him of our former association. In any case, I passed his class.

Shortly after that, his law office would defend me in yet another libel case where I was sued for my reportage on a violent fraternity-related incident on campus that took the life of an innocent bystander – a journalism student who came from a very poor family and his family’s only hope for a better life.  The son of an influential family had been linked to the crime and I had duly reported on it. This time around, younger lawyers from Atty.  Vinluan’s firm  were assigned to defend me. Like the first one, the suit was dismissed  before it could even reach the courts.

I recall this part of my eight years working as a journalist  to bring home the point about criminal libel – how it seriously impairs a journalists’ work to ferret out the truth about a matter of public interest,  and how helpless a journalist could be if he or she is not supported by his or her media organization when sued for libel. In my case, my newspaper, The Philippine Star, did not abandon me but hired the best lawyers to defend me.

Unfortunately, for many Filipino journalists, especially those who work away from the center, a good defense lawyer for a libel case  is a luxury they cannot afford.

The Philippines, despite its democratic credentials,  has kept in its statute books criminal libel. It is a colonial legacy that time and again, powers-that-be have had no qualms deploying to stifle legitimate political dissent or any comment or reportage made in pursuit of the public interest.

As the American Bar Association‘s (ABA) Country Director Scott Ciment would say, criminal libel is an abhorrent practice that should have no place in any self-respecting democratic state “because it sends people to jail simply because of the words they say or write. ”

The Dutch Christian philosopher Herman Dooyeweerd would say that a state with a deepened understanding of justice will know better than punish an act of defamation with imprisonment,  or penalize those who speak the truth to power with a jail term.

One piece of good news is that the United Nations Human Rights Committee recently declared that the Revised Penal Code’s provisions penalizing libel is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights,” which pertains to the freedom of expression.

Recalling  its General Comment No. 34, the UN body stressed that defamations laws should not stifle freedom of expression. “Penal defamation laws should include defense of truth,” it said. “[In] comments about public figures, consideration should be given to avoiding penalties or otherwise rendering unlawful untrue statements that have been published in error but without  malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defense. State parties should consider the decriminalization of libel.”

The UNHRC’s view was expressed in connection with a complaint filed with it by Davao City broadcast journalist Alexander Adonis, who spent two years in jail after he was convicted of libeling former Speaker of the House Prospero Nograles.

Adonis’s crime was reading and dramatizing over his popular radio program a news report that then Congressman Nograles was seen running naked in the corridors of a hotel in the city after he was caught in bed by the husband of the woman who was said to the legislator’s mistress. The incident entered the collective memory of the citizens of Davao City as the “Burlesque King” scandal.

After serving two years in prison, with the legal assistance provide by the Center for International Law,  Adonis questioned, among other things,  whether criminal libel is compatible with the freedom of expression protected  under Art 19 of the ICCPR, to which the Philippines is a state party.

And the UNHRC‘s answer is a resounding no.

The UNHRC is a treaty monitoring body created under an optional protocol to the ICCPR with the power to declare that a State party to the Convention is in breach of its obligations under the covenant.

In the Association of Southeast Asian Nations (ASEAN), only the Philippines signed up to the individual complaint mechanism that allows its citizens to file directly with the UNHRC  complaints for violations of their human rights.

While it is true that a UNHRC view is legally non-binding on an erring state, it carries persuasive weight that such a state cannot readily discount, not to mention the follow-up mechanism in the UN system  that repeatedly reminds the state of its continuing breach of obligations.

In the context of Philippine experience, it is yet the most powerful condemnation by an international body of the truly scandalous nature of criminal libel: of how, all too often, those in power hold on to it by suppressing those who dare to speak truth to power,  using their most readily available tool – a libel complaint.*


An earlier version of this  essay first appeared in my column for the Iloilo City-based The News Today.

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Burma’s children

Mae Sot, Thailand– A.P, a 19-year-old student from Burma, is a child of his country’s so-called “Lost Generation.”

A sophomore studying the Burmese language as a distance education student in Rangoon, Burma’s old capital, A.P. is in this border town in Thailand’s northern reaches with four other students to attend a training conference on free expression organized by my organization, the Center for International Law (CenterLaw), and its partner-institution, the American Bar Association (ABA).

“My parents don’t know I’m here,” he tells me later over dinner at the end of the intensive two-day conference.

“But I have to be here.” Unlike most of the 32 participants in the training conference, he could speak intelligible English, and he exuded the bravado that could only come from a young man with a clear vision of what he would like to be in the future.

In 1988, the Burmese military junta shut down the country’s state-run schools and universities following wide-spread student uprising. Many students were arrested, but many more left the country as refugees. It was an unprecedented brain drain like no other, as young professionals – doctors, lawyers, engineers, teachers, scientists – followed suit. But the Burma’s generals couldn’t care any less. For them, the fewer the critics at home, the better.

What ensued was unmitigated academic disaster, the result of an egregious crime against the life of the mind. Students of the era who suddenly found themselves with no schools to go to were called the “lost generation” by the foreign press. Years later, the junta would eventually allow the reopening of schools but only under their close supervision and with such watered-down standards that for many, it didn’t make much of a difference had the schools remained shuttered down.

The few who could afford it went to private schools that sprang up like mushrooms in the wake of the closure of state-run schools; most, however simply found their academic life – and their youthful dreams – taken away from them. When I ask A.P. what his parents do for a living, he replies that his father runs a small shop while his mother is a school teacher.

A.P.’s parents must have been students themselves at the time when the generals ordered all state-run schools closed down. But he wants to do more than studying. He wants to enter politics and help shape a future Burma without its junta of generals. But for that he must prepare, he says.

“That is why I want to study political science too.”

In 2007, Burma was rocked by a new wave of protests sparked by the junta’s unannounced decision to remove fuel subsidies to public transportation in the oil and natural gas-rich country. Thousands of monks, joined by students, took to the streets to launch civil resistance. Western observers thought the “saffron revolution” would finally topple the Burmese dictatorship. Instead, it was violently suppressed by the military junta.

The junta has been in power since 1962. In 2010, it supposedly transferred power to a civilian government, now headed by President Thein Sin, although many of its military leaders still dominate the government.

Indeed, student activists of A.P’s new generation must still face ruthless generals whose heartless ways were demonstrated yet again two years ago when they blocked international aid for victims of the international cyclone Nargis, which had killed an estimated 140,000 Burmese.

Julian Assange’s Wikileaks would later reveal that the junta’s leader, General Than Shwe, the commander-in-chief of the armed forces, in the aftermath of the calamity, had thought of making a US 1 billion dollar bid for the Manchester United football club.

A big fan of the football club, the general backtracked on the plan because it might “look bad”, according to Wikileaks. Instead, Than Shwe created a new Burmese football league worth millions of dollars, all this while many survivors of the disaster waited in vain on his government to provide them with permanent housing, access to clean water, and tools for fishing and agriculture.

The junta also sentenced to 35 years in prison Burma’s most eminent comedian, Zargana, who had spoken critically of the government’s slow action on the destruction the cyclone left in its wake.

One shudders at the thought of what other horrors a humor-less government who does that to a comedian is capable of doing.

But more recently, under intense international pressure, the Burmese government promised a package of reforms and in a gesture observers said was meant to improve its international image, ordered the release of large groups of political prisoners.

Only last month, in its most significant step yet, the government freed more than 600 prisoners, including the most prominent student, democracy and minority leaders and military intelligence and army dissidents jailed in 2004.

At our training conference, A.P. and his fellow students – most of them in their late teens – wore white T-shirts with the words “Free Expression” printed on them. They were an interesting contrast to the older participants at the conference, including some who had spent years in jail for their political activity and a handful of monks.

The participants came from all over Burma from various organizations that banded together to form the Action Committee for Democracy Development (ACDD), a political alliance representing monks, ethnics, youth and student activists of the 1988 and the 2007 generations.

Not a few traveled for at least four days to get to the conference venue, a small resort tucked away in a hilly part of Mae sot. Most of them did not have travel documents – which is why the ACDD chose a resort with  nondescript surroundings as conference venue.

And all of them appeared to be skeptical of the government’s recent gestures of goodwill.

They say it’s all for a show, done to justify Burma’s turn to chair the Association of Southeast Asian Nations (Asean) in 2014.

There is of course, the wide-ranging sanctions imposed by Western nations on Burma that need to be lifted.

DNA, the well-known Burmese political dissident who assisted us in putting together the conference, told as much to me when I asked for his opinion on the question. Still, there is work to be done, and he agrees that training conference like ours are much needed. Indeed, I saw for myself the participants’ eagerness to learn, the language barrier and the sweltering heat of the sun in Mae Sot notwithstanding.

A.P. himself says he will vote in the forthcoming parliamentary elections announced by the civilian government. He looks forward to seeing newly-released opposition leader Aung San Suu Kyi and her National League for Democracy (NLD) emerge victorious in the elections. It will be the first time in two decades that the NLD is joining the parliamentary elections, which is  the first to be held in 22 years.

“Our youth association shares the same goals with her,” he says. “But it doesn’t mean I want to belong to her political party.”

At the dinner, everyone is boisterous. Thai beer and food went well with their Burmese version of the videoke. “We’re all happy tonight,” says A.P., a teenager with a well-chiseled face, an easy-going manner and a smile on his eyes. “Tomorrow we all go back to Burma and we will not be seeing one another for a long time.”*


Click here for the link to my column for the Iloilo News Today where this essay first appeared.

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Filed under Burma, Free Expression, Impunity