INTERNATIONAL HUMAN RIGHTS,

INTERNATIONAL HUMANITARIAN LAW &

INTERNATIONAL CRIMINAL LAW

HERSON S. VALMORES
SMU-LAW
INTERNATIONAL HUMAN RIGHTS

• HUMAN RIGHTS pertain to “those fundamental and

inalienable rights which are essential for life as a human
being”

• The “internationalization” of human rights

• INTERNATIONAL LAW OF HUMAN RIGHTS is “the law

which deals with the protection of individuals and groups
against violations by governments of their internationally
guaranteed rights, and with the promotion of these rights.”
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CLASSIFICATION OF HUMAN RIGHTS
1. The first generation consisting of civil and political rights
2. The second generation consisting of economic, social
and cultural rights
3. The third generation rights, which refer to right to
development, right to peace, and right to environment

INTERNATIONAL BILL OF HUMAN RIGHTS

4. Universal Declaration of Human Rights
5. International Covenant on Civil and Political Rights
6. International Covenant on Economic, Social and
Cultural Rights
INTERNATIONAL HUMAN RIGHTS
CLASSIFICATION OF HUMAN RIGHTS
1. The first generation consisting of civil and political rights
2. The second generation consisting of economic, social
and cultural rights
3. The third generation rights, which refer to right to
development, right to peace, and right to environment

INTERNATIONAL BILL OF HUMAN RIGHTS

4. Universal Declaration of Human Rights
5. International Covenant on Civil and Political Rights
6. International Covenant on Economic, Social and
Cultural Rights
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THE NATURE OF THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS
 The Declaration is not a treaty but a mere resolution of the UN General
Assembly (Resolution 217A [III] which was enacted on 10 December 1948)
 Its influence is undeniable.
1. It was used as a justification for the various actions taken by the United
Nations
2. Its provisions are reflected in the national constitutions and municipal
legislation of member-states. In some instances, they are even cited by
municipal courts in their decisions
3. It is used as a yardstick to measure the degree of respect for and compliance
with the international standards of human rights
 While the Declaration is not legally binding, some of its provisions are
regarded either as general principles of law or represent elementary
consideration of humanity
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INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS
 The life, liberty and security of persons
 Prohibition against slavery or involuntary servitude and against
torture or cruel, inhuman or degrading punishment
 The right not to be subject to arbitrary arrest, detention or exile
 The right to privacy
 The right to a fair trial ad presumption of innocence
 Prohibition against application of ex post facto law
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INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL

AND CULTURAL RIGHTS
 The right to social security
 The right to work and protection against unemployment
 The right to equal pay for equal work
 The right to form and join trade union
INTERNATIONAL HUMAN RIGHTS
OTHER INTERNATIONAL TREATIES GOVERNING
 Genocide
 Torture
 Rights of the Child
 Rights of Migrant Workers
 Discrimination
 Refugee
Right of Non-Refoulement – Prohibition against the expulsion of the
refugee to the frontiers of territories where his right or freedom would be
threatened on account of his race, religion, nationality, or membership to
a particular social group or political opinion
INTERNATIONAL HUMANITARIAN LAW

INTERNATIONAL HUMANITARIAN LAW is the branch of

public international law which governs armed conflicts to
the end that
o THE USE OF VIOLENCE IS LIMITED
o HUMAN SUFFERING IS MITIGATED
BY
o LIMITING THE MEANS OF MILITARY OPERATION
o PROTECTING PERSONS WHO DO NOT OR NO LONGER
PARTICIPATE IN HOSTILITIES
INTERNATIONAL HUMANITARIAN LAW

PRIMARY LEGAL INSTRUMENTS THAT EMBODY

INTERNATIONAL HUMANITARIAN LAW

The Four (4) Geneva Convention of 1949

a. The Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in the Armed Forces in the Field (First GC)
b. The Geneva Convention for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of the Armed Forces at
Sea (Second GC)
c. The Geneva Convention Relative to the Treatment of Prisoners of
War (Third GC)
d. The Geneva Convention Relative to the Protection of Civilians in
Times of War (Fourth GC)
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PRIMARY LEGAL INSTRUMENTS THAT EMBODY

INTERNATIONAL HUMANITARIAN LAW

Additional Protocols
a. Relating to the Protection of Victims of International Armed Conflicts
(First Protocol)
b. Relating to the Protection of Victims of Non-International Armed
Conflicts (Second Protocol)
c. Adoption of Additional Distinctive Emblem
o Under the Protocol, the protective sign of the Red Crystal may be deployed by
medical and religious personnel in times of war instead of the traditional Red
Cross, Star of David, or Red Crescent
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FUNDAMENTAL PRINCIPLES

1. Parties are prohibited from employing weapons or means of warfare that

cause unnecessary damage or suffering.
2. Parties to an armed conflict shall at all times distinguish between the civilian
population and the combatants
3. Persons hors de combat and those who do not take part directly in hostilities
shall be protected and treated humanely without any adverse distinction
o A PERSON IS HORS DE COMBAT IF (A) HE IS IN THE POWER OF THE ADVERSE PARTY, (B) HE
CLEARLY EXPRESSES AN INTENTION TO SURRENDER, OR © HE HAS BEEN RENDERED
UNCONCIOUS OR IS OTHERWISE INCAPACITATED BY WOUNDS OR SICKNESS AND IS THEREFORE
INCAPABLE OF DEFENDING HIMSELF PROVIDED THAT HE ABSTAINS FROM HOSTILE ACT, AND DOES
NOT ATTEMPT TO ESCAPE
4. It is prohibited to kill or injure an enemy who surrenders or who is hors de
combat
5. The wounded and the sick shall be protected and cared for by the party to the
conflict which has them in its power
6. Combatants and civilians who are captured by authority of the aprty to a
dispute are entitled to respect for their life, dignity, conviction and other
personal rights
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MARTENS CLAUSE (Protocol I)

 In cases not covered by Protocol I or by any other international
agreements, civilians and combatants remain under the protection
and authority of the principles of international law derived from
established norms, from the principle of humanity and from the
dictates of the public conscience

NOTE: Republic Act No. 9851 otherwise known as the

“Philippine Act on Crimes Against International
Humanitarian Law, Genocide and Other Crimes Against
Humanity”
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 Criminal law of the international community, or law that

governs international crimes

Convergence of two different legal disciplines --- (1) the

criminal law aspect of international law, and (2) the
international aspect of national criminal law

Legal Basis: The Rome Statute of the International

Criminal Court
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 As of March 2016, there are 124 State Parties

The Philippines acceded to the Rome Statute on 30 August 2011 and

entered into force on 1 November 2011 (117th State Party)

Non-State Parties: China and India are critical of the ICC; Israel, Sudan and
USA expressed intention not to be a party to the Rome Statute

Prior to the creation of the ICC, there were four ad-hoc criminal criminals:
the International Criminal Tribunal at Nuremberg, the International Military
Tribunal for the Far East, the International Criminal Tribunal for the Former
Yugoslavia, and the International Criminal Tribunal for Rwanda.

Note also the Extraordinary Chambers in the Courts of Cambodia and the
UN Special Panel in Timor Leste
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 The ICC exercised jurisdiction over four (4) international crimes: (1) the crime of
genocide, (2) crimes against humanity, (3) war crimes, and (4) the crime of aggression

 The ICC is composed of three chambers (Appeals Chamber, Trial Chamber, Pre-trial
Chamber) and 18 judges. In addition, the ICC has the following organs: (1) the
Presidency, (2) the Office of the Prosecutor, and (3) the Registry

 Election of ICC judges

1. Every candidate for election may be classified into two groups: (1) those with
established competence in criminal law and procedure and (2) those with established
competence in relevant areas of international law
2. Each State Party may only nominate once candidate
3. First election: nine (9) judges of group (1) and six (6) judges of group (2)
4. Judges are elected via secret ballot at a meeting attended by Assembly of State
Parties. Considered elected are those who obtained the highest number of votes with
2/3 majority of State Parties present and voting
5. No two nationals may be nationals of the same state
6. Term: Nine (9) years
7. The President is elected by an absolute majority of judges for a term of three (3) years
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GENERAL PRINCIPLES OF INTERNATIONAL CRIMINAL

LAW UNDER THE ROME STATUTE

1. The Principle of Legality (nullum crimen sine lege,

nullum poena sine lege)
 Article 22. “A person convicted by the Court may be punished only in
accordance with this Statute”
 Article 22 (1). “A person shall not be criminally responsible under the Statute
unless the conduct in question constitutes, at the time it takes place, a crime
within the jurisdiction of the Court.”
 Article 22 (2). “The definition of a crime shall be strictly construed and shall
not be extended by analogy. In case of ambiguity, the definition shall be
interpreted in favor of the person being investigated, prosecuted or
convicted.”
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2. Principle of Non-retroactivity
o Article 24 (1). “No person shall be criminally responsible under this
Statute for conduct prior to the entry into force of the Statute.”

3. Principle of ne bis in idem

o Article 20 (1). “No person shall be tried before the ICC with respect to
conduct which formed the basis of crimes for which the person has
been convicted or acquitted by the Court.”
o Article 20 (2). “No person shall be tried by another court for a crime …
(within the jurisdiction of the court) for which that person has already
been convicted or acquitted by the Court.”

4. Individual criminal responsibility

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5. Principle of Superior Responsibility

o A superior is held criminally liable for failure to prevent his subordinates from
committing unlawful acts in view of his command and control over them and
liable as well for their crime

6. Principle of mens rea

o By this principle, it is not enough that an act is declared unlawful as a crime,
which is committed with intent, for an individual to be criminally liable; criminal
liability requires as well moral blameworthiness. The objective or material
element of a willful act is combined with the subjective element of culpability.
o Two elements under Article 30 of the Rome Statute: (1) intent, and (2) knowledge

7. Individual dual responsibility

o Individual criminal liability for the accused for punishment and civil liability of
states under the Principle of State Responsibility for reparation/compensation
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8. Principle of Complementarity
o ICC has concurrent jurisdiction with domestic tribunals over those
responsible for international crimes
o The principle gives primacy to national jurisdiction. Under Article 17
(1), ICC shall consider a case inadmissible where
a. The accused is being investigated or prosecuted by a state which has
jurisdiction over it, unless the state is unwilling or unable to genuinely carry
out the investigation or prosecution
b. The case has been investigated by a state which has jurisdiction over it and
the State has decided not to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of the state to
genuinely prosecute
c. The person concerned has already been tried by a national court for
conduct which is the subject of the complaint and a trial by the court is not
permitted under Article 20 (3), i.e., principle of ne bis in idem
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JURISDICTIONAL RULES

1. As to the subject matter (rationale materiale)

o The crime of Genocide
o Crimes against humanity
o War crimes
o The crime of aggression
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2. Jurisdiction Rationale temporis

o ICC has jurisdiction only with respect to crimes committed after the
entry into force of its Statute, i.e. after 1 July 2002
o As to state which has become a party to the Statute after the above
date, the ICC jurisdiction will only be exercise after the date of entry
into force of the Statute for that state
o With respect to states which are not party to the Statute, under Article
12 (9), a state may accept the court’s jurisdiction by means of an ad
hoc declaration. At any rate, the effectivity cannot be earlier than 1
July 2002
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3. Jurisdiction Ratione Locus
o ICC has jurisdiction over crimes committed in the territory of State
Parties, without respect to the nationality of the offender
o ICC has jurisdiction over crimes committed in the territory of a non-
state party that accepts the exercise of ICC jurisdcition via ad hoc
declaration
4. Jurisdiction Ratione Personae
o ICC has jurisdiction over nationals of a state party as to crimes within
the court’s jurisdiction they are accused of
o The ICC has NO jurisdiction over any person under 18 years of age at
the time of the alleged commission of the crime
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How May the Actual Exercise of the ICC Jurisdiction Be

Brought About?
1. A State Party refers to the Prosecutor a situation in which a
crime appears to have been committed
2. The UN Security Council, acting by its authority under Chapter
VII of the UN Charter refers to the Prosecutor a situation in
which a crime appears to have been committed
3. The Prosecutor moto proprio initiates an investigation on
information with respect to a crime within the ICC jurisdiction
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OTHER MATTERS
 Trial in absentia
 Penalty: maximum of 30 years imprisonment, or life imprisonment
when justified by the extreme gravity of the crime and the
personal circumstances of the convicted person
 Enforcement of Sentence of Imprisonment
 ICC v. other ad hoc ICT (bases of existence, extent of jurisdiction,
permanent/ad hoc)
 ICC v. ICJ (parties, cases referred to them, composition, exercise
of jurisdiction, kinds of jurisdiction)
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 Withdrawal from the Rome Statute