Republic of the
Supreme Court
EN BANC
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ISABELITA C. VINUYA, |
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G.R. No. 162230 |
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C. DELA PEÑA, HERMINIHILDA |
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MANIMBO, LEONOR H. SUMAWANG, |
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CANDELARIA L. SOLIMAN, MARIA |
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L. QUILANTANG, MARIA L. MAGISA, |
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NATALIA M. ALONZO, |
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NAVARO, FRANCISCA M. ATENCIO, |
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ERLINDA MANALASTAS, TARCILA |
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M. SAMPANG, ESTER M. PALACIO, |
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MAXIMA R. DELA CRUZ, BELEN A. |
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SAGUM, FELICIDAD TURLA, |
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FLORENCIA M. DELA PEÑA, |
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Present: |
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EUGENIA M. LALU, JULIANA G. |
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MAGAT, CECILIA SANGUYO, ANA |
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PUNO, C. J., |
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ALONZO, RUFINA P. MALLARI, |
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CARPIO, |
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ROSARIO M. ALARCON, RUFINA C. |
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GULAPA, ZOILA B. MANALUS, |
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CARPIO MORALES, |
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CORAZON C. CALMA, MARTA A. |
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VELASCO, JR., |
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GULAPA, TEODORA M. HERNANDEZ, |
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NACHURA, |
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FERMIN B. DELA PEÑA, MARIA DELA |
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LEONARDO-DE CASTRO, |
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PAZ B. CULALA, ESPERANZA |
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BRION, |
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MANAPOL, JUANITA M. BRIONES, |
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PERALTA, |
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VERGINIA M. GUEVARRA, MAXIMA |
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BERSAMIN, |
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ANGULO, EMILIA SANGIL, TEOFILA |
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R. PUNZALAN, JANUARIA G.
GARCIA, |
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ABAD, |
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PERLA B. BALINGIT, BELEN A. |
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VILLARAMA, JR., |
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CULALA, PILAR Q. GALANG, |
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PEREZ, and |
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ROSARIO C. BUCO, GAUDENCIA C. |
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MENDOZA, JJ. |
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DELA PEÑA, RUFINA Q. CATACUTAN, |
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FRANCIA A. BUCO, PASTORA C. |
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CRUZ, PETRONILA O. DELA CRUZ, |
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ZENAIDA P. DELA CRUZ, CORAZON |
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M. SUBA, EMERINCIANA A. VINUYA, |
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BUCO, PATRICIA A. BERNARDO, |
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LUCILA H. PAYAWAL, |
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LIWAG, ESTER C. BALINGIT,
JOVITA |
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A. DAVID, EMILIA C. MANGILIT, |
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VERGINIA M. BANGIT, GUILLERMA |
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S. BALINGIT, TERECITA
PANGILINAN, |
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MAMERTA C. PUNO, CRISENCIANA |
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C. GULAPA, SEFERINA S. TURLA, |
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Promulgated: |
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MAXIMA B. TURLA, LEONICIA G. |
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April 28, 2010 |
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GUEVARRA, ROSALINA M. CULALA, |
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CATALINA Y. MANIO, MAMERTA T. |
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SAGUM, CARIDAD L. TURLA, et al. |
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In their capacity and as
members of the |
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“ |
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Petitioners, |
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- versus - |
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THE HONORABLE EXECUTIVE |
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SECRETARY ALBERTO G. |
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ROMULO, THE HONORABLE |
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SECRETARY OF FOREIGN |
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AFFAIRS DELIA DOMINGO- |
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ALBERT, THE HONORABLE |
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SECRETARY OF JUSTICE |
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MERCEDITAS N. GUTIERREZ, |
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and THE HONORABLE SOLICITOR |
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GENERAL ALFREDO L. BENIPAYO, |
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Respondents. |
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x
D E C I S I O N
The Treaty of Peace with
There is a broad range of vitally
important areas that must be regularly decided by the Executive Department
without either challenge or interference by the Judiciary. One such area involves
the delicate arena of foreign relations. It would be strange indeed if the
courts and the executive spoke with different voices in the realm of foreign
policy. Precisely because of the nature of the questions presented, and the
lapse of more than 60 years since the conduct complained of, we make no attempt
to lay down general guidelines covering other situations not involved here, and
confine the opinion only to the very questions necessary to reach a decision on
this matter.
Factual
Antecedents
This
is an original Petition for Certiorari
under Rule 65 of the Rules of Court with an application for the issuance of a
writ of preliminary mandatory injunction against the Office of the Executive
Secretary, the Secretary of the Department of Foreign Affairs (DFA), the
Secretary of the Department of Justice (DOJ), and the Office of the Solicitor
General (OSG).
Petitioners are all
members of the MALAYA LOLAS, a non-stock, non-profit organization registered
with the Securities and Exchange Commission, established for the purpose of
providing aid to the victims of rape by Japanese military forces in the
Petitioners
narrate that during the Second World War, the Japanese army attacked villages
and systematically raped the women as part of the destruction of the village.
Their communities were bombed, houses were looted and burned, and civilians
were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly
seized the women and held them in houses or cells, where they were repeatedly
raped, beaten, and abused by Japanese soldiers. As a result of the actions of
their Japanese tormentors, the petitioners have spent their lives in misery,
having endured physical injuries, pain and disability, and mental and emotional
suffering.[2]
Petitioners
claim that since 1998, they have approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the
“comfort women” stations in the
Issues
Hence, this
petition where petitioners pray for this court to (a) declare that respondents
committed grave abuse of discretion amounting to lack or excess of discretion
in refusing to espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the respondents to espouse their claims
for official apology and other forms of reparations against Japan before the
International Court of Justice (ICJ) and other international tribunals.
Petitioners’
arguments
Petitioners
argue that the general waiver of claims made by the Philippine government in
the Treaty of Peace with
Respondents’ Arguments
Respondents maintain that all claims
of the
Article 14 of the Treaty of Peace[7]
provides:
Article
14. Claims and Property
a) It is recognized that
b)
Except as
otherwise provided in the present Treaty, the Allied Powers waive all
reparations claims of the Allied Powers, other claims of the Allied Powers and
their nationals arising out of any actions taken by Japan and its nationals in
the course of the prosecution of the war, and claims of the Allied Powers for
direct military costs of occupation.
In addition,
respondents argue that the apologies made by
Historical
Background
The comfort women system was the tragic
legacy of the Rape of Nanking. In December 1937, Japanese military forces
captured the city of
In reaction to international outcry over the incident, the Japanese
government sought ways to end international condemnation[10]
by establishing the “comfort women” system.
Under this system, the military could simultaneously appease soldiers'
sexual appetites and contain soldiers' activities within a regulated
environment.[11]
Comfort stations would also prevent the spread of venereal disease among
soldiers and discourage soldiers from raping inhabitants of occupied territories.[12]
Daily
life as a comfort woman was “unmitigated misery.”[13] The military forced victims into
barracks-style stations divided into tiny cubicles where
they were forced to live, sleep, and
have sex with as many 30 soldiers per day.[14] The 30 minutes allotted for sexual relations
with each soldier were 30-minute increments of unimaginable horror for the
women.[15]
Disease was rampant.[16]
Military doctors regularly examined the women, but these checks were carried
out to prevent the spread of venereal diseases; little notice was taken of the
frequent cigarette burns, bruises, bayonet stabs and even broken bones
inflicted on the women by soldiers.
Fewer than 30% of the
women survived the war.[17] Their agony continued in having to suffer
with the residual physical, psychological, and emotional scars from their
former lives. Some returned home and
were ostracized by their families. Some committed suicide. Others, out of shame, never returned home.[18]
Efforts to
Secure Reparation
The most prominent attempts to compel the Japanese government to accept
legal responsibility and pay compensatory damages for the comfort women system
were through a series of lawsuits, discussion at the United Nations (UN),
resolutions by various nations, and the Women’s International Criminal
Tribunal. The Japanese government, in turn, responded through a series of
public apologies and the creation of the AWF.[19]
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first
lawsuit in
Undoubtedly frustrated by the failure of litigation before Japanese
courts, victims of the comfort women system brought their claims before the
United States (US). On September 18, 2000, 15 comfort women filed a class
action lawsuit in the US District Court for the District of Columbia[23]
"seeking money damages for [allegedly] having been subjected to sexual
slavery and torture before and during World War II," in violation of
"both positive and customary international law." The case was filed pursuant to the Alien Tort
Claims Act (“ATCA”),[24]
which allowed the plaintiffs to sue the Japanese government in a
The District of Columbia Court of Appeals affirmed the lower court's
dismissal of the case.[26] On appeal, the US Supreme Court granted the
women’s petition for writ of certiorari, vacated the judgment of the District
of Columbia Court of Appeals, and remanded the case.[27] On remand, the Court of Appeals affirmed its
prior decision, noting that “much as we may feel for the plight of the
appellants, the courts of the
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual
Slavery by Japan (KCWS), submitted a petition to the UN Human Rights Commission
(UNHRC), asking for assistance in investigating crimes committed by
A. At the national level
137. The Government of
(a) Acknowledge that the system of comfort
stations set up by the Japanese Imperial Army during the Second World War was a
violation of its obligations under international law and accept legal
responsibility for that violation;
(b) Pay compensation to individual victims
of Japanese military sexual slavery according to principles outlined by the
Special Rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities on the right to restitution, compensation and
rehabilitation for victims of grave violations of human rights and fundamental
freedoms. A special administrative tribunal for this purpose should be set up
with a limited time-frame since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents
and materials in its possession with regard to comfort stations and other
related activities of the Japanese Imperial Army during the Second World War;
(d) Make a public apology in writing to
individual women who have come forward and can be substantiated as women
victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by
amending educational curricula to reflect historical realities;
(f) Identify and punish, as far as
possible, perpetrators involved in the recruitment and institutionalization of
comfort stations during the Second World War.
Gay
J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, also presented a report to the
Sub-Committee on
68. The
present report concludes that the Japanese Government remains liable for grave
violations of human rights and humanitarian law, violations that amount in
their totality to crimes against humanity.
The Japanese Government’s arguments to the contrary, including arguments
that seek to attack the underlying humanitarian law prohibition of enslavement
and rape, remain as unpersuasive today as they were when they were first raised
before the
69. The
failure to settle these claims more than half a century after the cessation of
hostilities is a testament to the degree to which the lives of women continue
to be undervalued. Sadly, this failure
to address crimes of a sexual nature committed on a massive scale during the
Second World War has added to the level of impunity with which similar crimes
are committed today. The Government of Japan has taken some steps to apologize
and atone for the rape and enslavement of over 200,000 women and girls who were
brutalized in “comfort stations” during the Second World War. However, anything less than full and
unqualified acceptance by the Government of Japan of legal liability and the
consequences that flow from such liability is wholly inadequate. It must now fall to the Government of Japan
to take the necessary final steps to provide adequate redress.
The UN, since then, has not taken
any official action directing
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a “people's
tribunal” established by a number of Asian women and human rights
organizations, supported by an international coalition of non-governmental
organizations.[31] First proposed in 1998, the WIWCT convened in
After examining the evidence for more than a year, the “tribunal” issued
its verdict on
Action by Individual
Governments
On
[I]t is the sense of the House of
Representatives that the Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and unequivocal
manner for its Imperial Armed Forces' coercion of young women into sexual
slavery, known to the world as “comfort women”, during its colonial and wartime
occupation of Asia and the Pacific Islands from the 1930s through the duration
of World War II; (2) would help to resolve recurring questions about the
sincerity and status of prior statements if the Prime Minister of Japan were to
make such an apology as a public statement in his official capacity; (3) should
clearly and publicly refute any claims that the sexual enslavement and
trafficking of the “comfort women” for the Japanese Imperial Army never
occurred; and (4) should educate current and future generations about this
horrible crime while following the recommendations of the international
community with respect to the “comfort women.”[34]
In December 2007, the European Parliament, the governing body of the
European Union, drafted a resolution similar to House Resolution 121.[35] Entitled, “Justice for Comfort Women,” the resolution demanded: (1) a formal
acknowledgment of responsibility by the Japanese government; (2) a removal of
the legal obstacles preventing compensation; and (3) unabridged education of
the past. The resolution also stressed the urgency with which
The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against
The Foreign Affairs
Committee of the
Statements of Remorse made by
representatives of the Japanese government
Various officials of the Government of Japan have issued the following
public statements concerning the comfort system:
a)
Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The
Government of Japan has been conducting a study on the issue of wartime
"comfort women" since December 1991. I wish to announce the findings
as a result of that study.
As
a result of the study which indicates that comfort stations were operated in
extensive areas for long periods, it is apparent that there existed a great
number of comfort women. Comfort stations were operated in response to the
request of the military authorities of the day. The then Japanese military was,
directly or indirectly, involved in the establishment and management of the
comfort stations and the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters who acted in response
to the request of the military. The Government study has revealed that in many
cases they were recruited against their own will, through coaxing coercion,
etc., and that, at times, administrative/military personnel directly took part
in the recruitments. They lived in misery at comfort stations under a coercive
atmosphere.
As
to the origin of those comfort women who were transferred to the war areas,
excluding those from
Undeniably,
this was an act, with the involvement of the military authorities of the day, that
severely injured the honor and dignity of many women. The Government of Japan
would like to take this opportunity once again to extend its sincere apologies
and remorse to all those, irrespective of place of origin, who suffered
immeasurable pain and incurable physical and psychological wounds as comfort
women.
It
is incumbent upon us, the Government of Japan, to continue to consider
seriously, while listening to the views of learned circles, how best we can
express this sentiment.
We
shall face squarely the historical facts as described above instead of evading
them, and take them to heart as lessons of history. We hereby reiterated our
firm determination never to repeat the same mistake by forever engraving such
issues in our memories through the study and teaching of history.
As
actions have been brought to court in
b)
Prime
Minister Tomiichi Murayama’s Statement in 1994
On
the issue of wartime “comfort women”, which seriously stained the honor and
dignity of many women, I would like to take this opportunity once again to
express my profound and sincere remorse and apologies”
c) Letters from the Prime Minister of
The
issue of comfort women, with the involvement of the Japanese military
authorities at that time, was a grave affront to the honor and dignity of a
large number of women.
As
Prime Minister of Japan, I thus extend anew my most sincere apologies and
remorse to all the women who endured immeasurable and painful experiences and
suffered incurable physical and psychological wounds as comfort women.
I
believe that our country, painfully aware of its moral responsibilities, with
feelings of apology and remorse, should face up squarely to its past history
and accurately convey it to future generations.
d) The
Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly
reflecting upon the many instances of colonial rule and acts of aggression that
occurred in modern world history, and recognizing that
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions
last year, and recently as well, and to the press. I have been consistent. I
will stand by the Kono Statement. This is our consistent position. Further, we
have been apologizing sincerely to those who suffered immeasurable pain and
incurable psychological wounds as comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and Hashimoto, have issued letters to the
comfort women. I would like to be clear that I carry the same feeling. This has
not changed even slightly. (Excerpt from
Remarks by Prime Minister Abe at an Interview by NHK, March 11, 2007).
I
am apologizing here and now. I am apologizing as the Prime Minister and it is
as stated in the statement by the Chief Cabinet Secretary Kono. (Excerpt from
Remarks by Prime Minister Abe at the Budget Committee, the House of Councilors,
the Diet of
I
am deeply sympathetic to the former comfort women who suffered hardships, and I
have expressed my apologies for the extremely agonizing circumstances into
which they were placed. (Excerpt from Telephone Conference by Prime Minister
Abe to President George W. Bush,
I
have to express sympathy from the bottom of my heart to those people who were
taken as wartime comfort women. As a human being, I would like to express my
sympathies, and also as prime minister of
x
x x both personally and as Prime
Minister of Japan, my heart goes out in sympathy to all those who suffered
extreme hardships as comfort women; and I expressed my apologies for the fact
that they were forced to endure such extreme and harsh conditions. Human rights
are violated in many parts of the world during the 20th Century; therefore we
must work to make the 21st Century a wonderful century in which no human rights
are violated. And the Government of Japan and I wish to make significant
contributions to that end. (Excerpt from Prime Minister Abe's remarks at the
Joint Press Availability after the summit meeting at
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the
government's concrete attempt to address its moral responsibility by offering
monetary compensation to victims of the comfort women system.[37] The purpose of the AWF was to show atonement
of the Japanese people through expressions of apology and remorse to the former
wartime comfort women, to restore their honor, and to demonstrate
The
AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying ¥2 million (approximately $20,000) to
each woman; (2) medical and welfare support programs, paying ¥2.5-3 million
($25,000-$30,000) for each woman; and (3) a letter of apology from the Japanese
Prime Minister to each woman. Funding for the program came from the Japanese government and private
donations from the Japanese people. As of March 2006, the AWF provided ¥700 million
(approximately $7 million) for these programs in
On
Our Ruling
Stripped down to its essentials, the issue in this case is whether the
Executive Department committed grave abuse of discretion in not espousing
petitioners’ claims for official apology and other forms of reparations against
Japan.
The petition
lacks merit.
From a Domestic Law Perspective,
the Executive Department has the exclusive prerogative to determine whether to
espouse petitioners’ claims against
Baker v. Carr[39] remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:
x x x Prominent on
the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and manageable
standards for resolving it, or the impossibility of deciding without an initial
policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by
various departments on question.
In Tañada
v. Cuenco,[40]
we held that political questions refer "to those questions which, under
the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not legality
of a particular measure."
Certain
types of cases often have been found to present political questions.[41] One such category involves questions of
foreign relations. It is
well-established that "[t]he conduct of the foreign relations of our
government is committed by the Constitution to the executive and
legislative--'the political'--departments of the government, and the propriety
of what may be done in the exercise of this political power is not subject to
judicial inquiry or decision."[42] The US Supreme Court has further cautioned
that decisions relating to foreign policy
are delicate, complex, and involve large
elements of prophecy. They are and
should be undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They
are decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility.[43]
To be
sure, not all cases implicating foreign relations present political questions,
and courts certainly possess the authority to construe or invalidate treaties
and executive agreements.[44] However, the
question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the
courts but to the political branches. In
this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations
against
In
the seminal case of US v.
Curtiss-Wright Export Corp.,[45] the US Supreme Court held that “[t]he President
is the sole organ of the nation in its external relations, and its sole
representative with foreign relations.”
It
is quite apparent that if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success
for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often
accord to the President a degree of discretion and freedom from statutory
restriction which would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in
time of war. He has his confidential sources of information. He has his agents
in the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v.
Executive Secretary[46] and Pimentel v. Executive Secretary;[47]
its overreaching principle was, perhaps, best articulated in (now Chief)
Justice Puno’s dissent in Secretary of
Justice v. Lantion:[48]
x x x The conduct of foreign relations is full of
complexities and consequences, sometimes with life and death significance to
the nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best available
information and can decide with decisiveness. x x x It is also the President
who possesses the most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited access
to ultra-sensitive military intelligence data.
In fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the conduct
of foreign affairs. The regularity, nay, validity of his actions are adjudged
under less stringent standards, lest their judicial repudiation lead to breach
of an international obligation, rupture of state relations, forfeiture of
confidence, national embarrassment and a plethora of other problems with
equally undesirable consequences.
The Executive
Department has determined that taking up petitioners’ cause would be inimical
to our country’s foreign policy interests, and could disrupt our relations with
In any event, it cannot reasonably
be maintained that the Philippine government was without authority to negotiate
the Treaty of Peace with
x x x [g]overnments have
dealt with x x x private claims as their own, treating them as national assets,
and as counters, `chips', in international bargaining. Settlement agreements
have lumped, or linked, claims deriving from private debts with others that
were intergovernmental in origin, and concessions in regard to one category of
claims might be set off against concessions in the other, or against larger
political considerations unrelated to debts.[49]
Indeed, except as an
agreement might otherwise provide, international settlements generally wipe out
the underlying private claims, thereby terminating any recourse under domestic
law. In Ware v. Hylton,[50]
a case brought by a British subject to recover a debt confiscated by the
I apprehend that the treaty of peace abolishes the
subject of the war, and that after peace is concluded, neither the matter in
dispute, nor the conduct of either party, during the war, can ever be revived,
or brought into contest again. All violences, injuries, or damages sustained by
the government, or people of either, during the war, are buried in oblivion;
and all those things are implied by the very treaty of peace; and therefore not
necessary to be expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or extinguished, during the
war, by any of the United States, could only be provided for by the treaty of
peace; and if there had been no provision, respecting these subjects, in the
treaty, they could not be agitated after the treaty, by the British
government, much less by her subjects in courts of justice. (Emphasis
supplied).
This practice of settling
claims by means
of a peace
treaty is certainly
nothing new. For instance, in Dames & Moore v. Regan,[51]
the US Supreme Court held:
Not
infrequently in affairs between nations, outstanding claims by nationals of one
country against the government of another country are “sources of friction”
between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796
(1942). To resolve these difficulties, nations have often entered
into agreements settling the claims of their respective nationals. As one
treatise writer puts it, international agreements settling claims by nationals
of one state against the government of another “are established international
practice reflecting traditional international theory.” L. Henkin, Foreign
Affairs and the Constitution 262 (1972). Consistent with that principle, the
Respondents explain
that the Allied Powers concluded the Peace Treaty with
This was also the
finding in a similar case involving American victims of Japanese slave labor
during the war.[52] In a consolidated case in the Northern District of
California,[53] the court dismissed the lawsuits filed, relying on the 1951 peace
treaty with
The
official record of treaty negotiations establishes that a fundamental goal of
the agreement was to settle the reparations issue once and for all. As the
statement of the chief
Reparation
is usually the most controversial aspect of peacemaking. The present peace is
no exception.
On
the one hand, there are claims both vast and just.
On
the other hand, to meet these claims, there stands a
The
policy of the
That
this policy was embodied in the treaty is clear not only from the negotiations
history but also from the Senate Foreign Relations Committee report
recommending approval of the treaty by the Senate. The committee noted, for
example:
Obviously
insistence upon the payment of reparations in any proportion commensurate with
the claims of the injured countries and their nationals would wreck
We thus hold that, from a municipal
law perspective, that certiorari will not lie. As a general principle – and
particularly here, where such an extraordinary length of time has lapsed
between the treaty’s conclusion and our consideration – the Executive must be
given ample discretion to assess the foreign policy considerations of espousing
a claim against Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that basis if apologies
are sufficient, and whether further steps are appropriate or necessary.
The
In the international sphere,
traditionally, the only means available for individuals to bring a claim within
the international legal system has been when the individual is able to persuade
a government to bring a claim on the individual’s behalf.[55]
Even then, it is not the individual’s rights that are being asserted, but
rather, the state’s own rights. Nowhere
is this position more clearly reflected than in the dictum of the Permanent
Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine
Concessions Case:
By
taking up the case of one of its subjects and by resorting to diplomatic action
or international judicial proceedings on his behalf, a State is in reality
asserting its own right to ensure, in the person of its subjects,
respect for the rules of international law. The question, therefore, whether
the present dispute originates in an injury to a private interest, which in
point of fact is the case in many international disputes, is irrelevant from
this standpoint. Once a State has taken up a case on behalf of one of its
subjects before an international tribunal, in the eyes of the latter the State
is sole claimant.[56]
Since the exercise of diplomatic protection is the
right of the State, reliance on the right is within the absolute discretion of
states, and the decision whether to exercise the discretion may invariably be
influenced by political considerations other than the legal merits of the
particular claim.[57]
As
clearly stated by the ICJ in
The Court would here observe that, within the
limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to
whatever extent it thinks fit, for it is its own right that the State is
asserting. Should the natural or legal person on whose behalf it is acting
consider that their rights are not adequately protected, they have no remedy in
international law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an obligation to protect its
citizens abroad, and may also confer upon the national a right to demand the
performance of that obligation, and clothe the right with corresponding sanctions.
However, all these questions remain within the province of municipal law and do
not affect the position internationally.[58] (Emphasis supplied)
The State, therefore, is the sole judge to decide
whether its protection will be granted, to what extent it is granted, and when
will it cease. It retains, in this respect, a discretionary power the exercise
of which may be determined by considerations of a political or other nature,
unrelated to the particular case.
The International Law Commission’s (ILC’s) Draft Articles on Diplomatic
Protection fully support this traditional view. They (i) state that "the
right of diplomatic protection belongs to or vests in the State,”[59]
(ii) affirm its discretionary nature by clarifying that diplomatic protection
is a "sovereign prerogative" of the State;[60]
and (iii) stress that the state "has the right to exercise diplomatic
protection
on behalf of a
national. It is under no duty or obligation to do so."[61]
It has been argued, as petitioners argue now, that
the State has a duty to protect its nationals and act on his/her behalf
when rights are injured.[62] However, at present, there is no sufficient
evidence to establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad.[63] Though, perhaps desirable, neither state
practice nor opinio juris has evolved in such a direction. If it is a
duty internationally, it is only a moral and not a legal duty, and there is no
means of enforcing its fulfillment.[64]
We fully agree that
rape, sexual slavery, torture, and sexual violence are morally reprehensible as
well as legally prohibited under contemporary international law.[65]
However, petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is under a
non-derogable obligation to prosecute international crimes, particularly since
petitioners do not demand the imputation of individual criminal liability, but
seek to recover monetary reparations from the state of Japan. Absent the
consent of states, an applicable treaty regime, or a directive by the Security
Council, there is no non-derogable duty to institute proceedings against
Even the invocation of jus cogens norms and erga omnes obligations will not alter
this analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to
show that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the
Treaty of Peace was signed, or that the duty to prosecute perpetrators of
international crimes is an erga omnes obligation
or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law
has been used as a legal term describing obligations owed by States towards the community of states as a
whole. The
concept was recognized by the ICJ in
x x x an
essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-à-vis
another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection;
they are obligations erga omnes.
Such obligations derive, for
example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning
the basic rights of the human person, including protection from slavery and
racial discrimination. Some of the corresponding rights of protection have
entered into the body of general international law … others are conferred by
international instruments of a universal or quasi-universal character.
The
Latin phrase, ‘erga omnes,’
has since become one of the rallying cries of those sharing a belief in the
emergence of a value-based international public order. However, as is so often
the case, the reality is neither so clear nor so bright. Whatever the relevance
of obligations erga omnes as a legal concept, its full potential remains
to be realized in practice.[69]
The
term is closely connected with the international law concept of jus cogens. In international law, the term “jus cogens” (literally,
“compelling law”) refers to norms that command peremptory authority,
superseding conflicting treaties and custom.
Jus cogens norms are considered peremptory in the sense that
they are mandatory, do not admit derogation, and can be modified only by
general international norms of equivalent authority.[70]
Early strains of the jus
cogens doctrine have existed since the 1700s,[71]
but peremptory norms began to attract greater scholarly attention with the
publication of Alfred von Verdross's influential 1937 article, Forbidden
Treaties in International Law.[72] The recognition of jus cogens gained even more force in the 1950s and 1960s with the
ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT).[73]
Though
there was a consensus that certain international norms had attained the status
of jus cogens,[74]
the ILC was unable to reach a consensus on the proper criteria for identifying
peremptory norms.
After an extended
debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that “there is not as yet any generally accepted criterion by
which to identify a general rule of international law as having the character
of jus cogens.”[75]
In a
commentary accompanying the draft convention, the ILC indicated that “the
prudent course seems to be to x x x leave the full content of this rule to be
worked out in State practice and in the jurisprudence of international
tribunals.”[76] Thus, while the existence of jus cogens in international law is
undisputed, no consensus exists on its substance,[77]
beyond a tiny core of principles and rules.[78]
Of
course, we greatly sympathize with the cause of petitioners, and we cannot
begin to comprehend the unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply
concerned that, in apparent contravention of fundamental principles of law, the
petitioners appear to be without a remedy to challenge those that have offended
them before appropriate fora. Needless
to say, our government should take the lead in protecting its citizens against
violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive
Department to take up the petitioners’ cause.
Ours is only the power to urge and exhort
the Executive Department to take up petitioners’ cause.
WHEREFORE, the Petition is
hereby DISMISSED.
SO
ORDERED.
MARIANO
C.
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
|
ANTONIO T. CARPIO Associate Justice |
RENATO C. CORONA Associate Justice |
|
CONCHITA CARPIO MORALES Associate Justice |
PRESBITERO J. VELASCO,
JR. Associate Justice |
|
ANTONIO EDUARDO B. NACHURA Associate Justice |
TERESITA J. LEONARDO-DE
CASTRO Associate Justice |
|
ARTURO D. BRION Associate Justice |
DIOSDADO M. PERALTA Associate Justice |
|
LUCAS P. BERSAMIN Associate Justice |
ROBERTO A. ABAD Associate Justice |
|
MARTIN S. VILLARAMA, JR. Associate Justice |
JOSE Associate Justice |
JOSE CATRAL
Associate Justice
C E R T
I F I C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
[2] U.N. Doc. E/CN.4/1996/53/Add.1
(January 4, 1996), Report of the Special Rapporteur on violence against women,
its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with
Commission on Human Rights resolution 1994/45.
[3] Treaty and
customary law both provide that when rape is committed as part of a widespread
or systematic attack directed at any civilian population, regardless of its
international or internal character, then it constitutes one of the gravest
crimes against humanity. This principle is codified under Article 6(c) of the
1945 Nuremberg Charter as well as Article 5(c) of the Tokyo Charter, which
enumerated “murder, extermination, enslavement, deportation, and other inhumane
acts committed against any civilian populations, before or during the war” as
crimes against humanity, and extended in scope to include imprisonment, torture
and rape by Control Council Law No. 10.
[4] Article 1 of the
Slavery Convention provides:
For
the purpose of the present Convention, the following definitions are agreed
upon:
(1) Slavery is
the status or condition of a person over whom any or all of the powers
attaching to the right of ownership are exercised.
(2) The slave
trade includes all acts involved in the capture, acquisition or disposal of a
person with intent to reduce him to slavery; all acts involved in the
acquisition of a slave with a view to selling or exchanging him; all acts of
disposal by sale or exchange of a slave acquired with a view to being sold or
exchanged, and, in general, every act of trade or transport in slaves.
Slavery,
Servitude, Forced Labour and Similar Institutions and Practices Convention of
1926 (Slavery Convention of 1926), 60 L.N.T.S. 253, entered into force
[5]
Torture
is defined as any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or
a third person, information or a confession, punishing him for an act he or a
third person has committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting
in an official capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions. (Convention Against Torture, Article 1.1)
[6] Signed at
[7] Signed in
[8] On
In May 1993,
On
The Japanese government regrets and sincerely
apologizes for the unbearable pain that these women regardless of their
nationalities, suffered while being forced to work as so-called comfort women.
The Japanese government expresses its heartfelt
sentiments of reflection and apology to all the women for their many sufferings
and the injuries to mind and body that cannot be healed.
The Philippine government, under the administration of
then President Fidel V. Ramos, accepted the formal apology given the Japanese
Government. Though the formal apology came late, it is a most welcome gesture
from the government of
[9] Richard J. Galvin, The Case for a
Japanese Truth Commission Covering World War II Era Japanese War Crimes, 11 Tul. J. Int'l & Comp. L.
59, 64 (2003).
[10] See Argibay,
Ad Litem Judge, International Criminal Tribunal for the Former
[11]
[12] Nearey, Seeking Reparations in the New Milleunium: Will Japan
Compensate the “Comfort Women” of World War II?, 15 Temp. Int'l & Comp. L.J. 121, 134 (2001).
[13] Ustinia Dolgopol & Snehal Paranjape,
Comfort Women: An Unfinished Ordeal 15 (1994).
[14]
[15] See Johnson, Comment, Justice for “Comfort Women”: Will the Alien Tort
Claims Act Bring Them the Remedies They Seek?, 20 Penn St. Int'l L. Rev. 253, 260 (2001).
[16] Id. at 261. Soldiers disregarded rules
mandating the use of condoms, and thus many women became pregnant or infected
with sexually transmitted diseases.
[17] Boling, Mass Rape, Enforced Prostitution, and the Japanese
Imperial Army:
[18]
[19] Yamamoto
et al., Race, Rights and Reparation 435-38 (2001).
[20] Meade, From
[21] Numerous lawsuits immediately
followed, including lawsuits filed by the Korean Council for Women Drafted for
Sexual Slavery, and a suit by a Dutch former comfort woman; Fisher, Japan's Postwar Compensation Litigation, 22 Whittier L. Rev. 35, 44 (2000).
[22] The lower court ruling in Ha v. Japan has been the lone courtroom
victory for comfort women. On
[23] Hwang Geum Joo v. Japan (“Hwang I”),
172 F. Supp. 2d 52 (D.D.C. 2001), affirmed, 332 F.3d 679
(D.C. Cir. 2003), vacated, 542 U.S. 901
(2004), remanded to 413 F.3d 45
(D.C. Cir. 2005), cert. denied,
126 S. Ct.
1418 (2006).
[24] Alien Tort Claims Act, 28 U.S.C. §
1350 (2000). The ATCA gives
[25] Under the ATCA, when a “cause
of action is brought against a sovereign nation, the only basis for obtaining
personal jurisdiction over the defendant is through an exception to the Foreign
Sovereign Immunities Act (FSIA).” See Jeffords, Will Japan Face Its Past? The Struggle for Justice
for Former Comfort Women, 2 Regent J.
Int'l L. 145, 158 (2003/2004). The FSIA (28 U.S.C. §
1604 (1994 & Supp. 1999).) grants foreign states immunity from
being sued in US district courts unless the state waives its immunity or the
claims fall within certain enumerated exceptions. The Japanese government
successfully argued that it is entitled to sovereign immunity under the FSIA.
The government additionally argued that post-war treaties had resolved the
issue of reparations, which were non-justiciable political questions.
[26] See Hwang Geum Joo v. Japan (“Hwang
II”), 332 F.3d 679, 680-81 (D.C. Cir. 2003), vacated, 542 U.S. 901
(2004), remanded to 413 F.3d 45
(D.C. Cir. 2005), cert. denied, 126 S. Ct.
1418 (2006).
[27] See Hwang Geum Joo v. Japan (“Hwang
III”), 542 U.S. 901 (2004) (memorandum), remanded to 413 F.3d 45
(D.C. Cir. 2005), cert. denied, 126 S. Ct.
1418 (2006).
[28]
[29] Soh,
The Comfort Women Project,
[30] An Analysis Of The Legal Liability Of The Government Of Japan For
“Comfort Women Stations” Established During The Second World War (Appendix); Report on Contemporary Forms of Slavery: Systematic rape, sexual slavery and
slavery-like practices During Armed Conflict, Final report submitted by
Ms. Gay J. McDougall, Special Rapporteur, Sub-Commission on Prevention of Discrimination and Protection of Minorities,
Commission on Human Rights (Fiftieth Session) E/CN.4/Sub.2/1998/13 (June 22,
1998).
[31] Chinkin, Women's International Tribunal on Japanese Sexual
Slavery, 95 Am. J. Int'l.
L. 335 (2001).
[32] A large amount of evidence was
presented to the tribunal for examination. Sixty-four former comfort women from
[33] Press Release, Congressman Mike Honda, Rep. Honda Calls on
Japan to Apologize for World War II Exploitation of “Comfort Women” (January
31, 2007).
[34] H.R. Res. 121, 110th Cong.
(2007) (enacted).
[35] European Parliament, Human
rights: Chad, Women's Rights in Saudi Arabia, Japan's Wartime Sex Slaves, Dec.
17, 2007, http://
www.europarl.europa.eu/sides/getDoc.do?language=EN&type=IM-PRESS&reference=20071210BRI14639&secondRef=ITEM-008-EN.
[36] The Comfort Women--A History of Trauma,
http:// taiwan.yam.org.tw/womenweb/conf_women/index_e.html.
[37] Yamamoto
et al., supra
note 19 at 437. The government appointed Bunbei Hara, former Speaker of the
Upper House of the Diet, as the first President of the Asian Women's Fund
(1995-1999). Former Prime Minister Tomiichi Murayama succeeded Hara as the
second president of the program (1999-present). See Jeffords, supra note 25 at 158.
[38] The Asian Women's Fund, http://www.awf.or.jp/english/project_
atonement.html, at 55.
[39] 369 U.S. 186, 82 S.Ct.
691, 7 L.Ed.2d 663 (1962).
[40] 103 Phil
1051, 1068 (1957).
[41] See Baker v. Carr, 369
[42] Oetjen v. Central Leather Co., 246
[43] Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333
[44] Constitution, Art. VIII, Sec. 5(2)(a).
[45] 299
[46] 396 Phil
623, 663 (2000). We held:
By constitutional fiat and by the intrinsic nature of
his office, the President, as head of State, is the sole organ and authority in
the external affairs of the country. In many ways, the President is the chief
architect of the nation's foreign policy; his "dominance in the field of
foreign relations is (then) conceded." Wielding vast powers and influence,
his conduct in the external affairs of the nation, as
[47] 501 Phil.
304, 313 (2005). We stated:
In our system of government, the President, being the
head of state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is
vested with the authority to deal with foreign states and governments, extend
or withhold recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other
states.
[48] 379 Phil. 165, 233-234 (2004).
[49] Henkin,
Foreign Affairs and the Constitution 300 (2d 1996); see Dames
and Moore v. Regan, 453 U.S. 654,
688, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (upholding the
President's authority to settle claims of citizens as "a necessary
incident to the resolution of a major foreign policy dispute between our
country and another [at least] where ... Congress acquiesced in the President's
action"); Am. Ins. Ass'n v. Garamendi, 539 U.S. 396,
424, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (acknowledging
"President's authority to provide for settling claims in winding up
international hostilities"). See
also Akbayan Citizens Action Party (“Akbayan”) v. Aquino, G.R. No.
170516,
x
x x While, on first impression, it appears wise to deter Philippine
representatives from entering into compromises, it bears noting that treaty
negotiations, or any negotiation for that matter, normally involve a process of
quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of greater
national interest.
[50] 3
[51] 453 U.S. 654, 101 S.Ct. 2972 (1981) (re the
establishment of the Iran-United States Claims Tribunal following the seizure
of American personnel as hostages at the American Embassy in
[52] Bazyler, The Holocaust
Restitution Movement in Comparative Perspective, 20
[54] Treaty of Peace with
[55] The
conceptual understanding that individuals have rights and responsibilities in
the international arena does not automatically mean that they have the ability
to bring international claims to assert their rights. Thus, the Permanent Court
of International Justice declared that “it is scarcely necessary to point out
that the capacity to possess civil rights does not necessarily imply the
capacity to exercise those rights oneself.” Appeal from a Judgment of the
Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment, 1933, PCIJ, Ser. A/B
No. 61, p. 208 at 231.
[56] PCIJ, Ser. A, No. 2, p. 11, at 16.
This traditional view was repeated by the PCIJ in the Panevezys-Saldutiskis
Railway Case, the Case Concerning the Payment of Various Serbian Loans
issued in
[57] See Borchard,
E., Diplomatic Protection of Citizens
Abroad at VI (1915). Under this view, the considerations underlying
the decision to exercise or not diplomatic protection may vary depending on
each case and may rely entirely on policy considerations regardless of the
interests of the directly-injured individual, and the State is not required to
provide justification for its decision.
[58] Barcelona Traction, Light and Power Company,
Limited, case, supra note 56, at p. 44 par. 78.
[59] ILC First
Reading Draft Articles on Diplomatic Protection, U.N. Doc. A/CN.4/484, ILC Report, A/53/10 (F), par. 60, Commentary to Draft Article 2, par. (1); see
also, Commentary to Draft Article 1, par. (3), and text of Draft Article 2.
[60] Report of
the International Law Commission on the work of its 50th session, supra note
60, par. 77.
[61] ILC First
[62] For
instance, Special Rapporteur Dugard proposed that the ILC adopt in its Draft
Articles a provision under which States would be internationally obliged to
exercise diplomatic protection in favor of their nationals injured abroad by
grave breaches to jus cogens norms, if the national so requested and if
he/she was not afforded direct access to an international tribunal. The proposed article reads as follows:
Article [4]1. Unless the injured
person is able to bring a claim for such injury before a competent
international court or tribunal, the State of his/her nationality has a legal
duty to exercise diplomatic protection on behalf of the injured person upon
request, if the injury results from a grave breach of a jus cogens norm
attributable to another State. 2. The state of nationality is relieved of this
obligation if: (a) The exercise of diplomatic protection would seriously
endanger the overriding interests of the State and/or its people; (b) Another
State exercises diplomatic protection on behalf of the injured person; (c) The
injured person does not have the effective and dominant nationality of the
State. States are obliged to provide in their municipal law for the enforcement
of this right before a competent domestic court or other independent national
authority". Special Rapporteur John Dugard, appointed in 1999, First
Report on Diplomatic Protection, par. 74 (UN Doc. A/CN.4/506 (
However, the proposal was not accepted by the ILC, as
"the question was still not ripe for treatment" because "the
State practice and their opinio juris still had not evolved in such
direction". Official Records of the General Assembly:
55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of the ILC on
the work of its 52nd session, p. 131. Instead, Draft Article 19, entitled
‘Recommended Practice’, suggests that states should be encouraged to exercise
diplomatic protection ‘especially when significant injury occurred’ to the
national. Drafted in soft language, the Article does not purport to create any
binding obligations on the state.
In addition, some States have incorporated in their municipal
law a duty to exercise diplomatic protection in favor of their nationals. (Dugard identifies this "obligation" to exist in the Constitutions
of Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China,
Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People´s
Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea,
Romania, Russian Federation, Spain, the former Yugoslav Republic of Macedonia,
Turkey, Ukraine, Viet Nam and Yugoslavia, albeit with different reaches. J.
Dugard, First Report on diplomatic protection, supra note 13, par. 80),
but their enforceability is also, to say the least, questionable (in many cases
there are not even courts competent to review the decision). Moreover, their
existence in no way implies that international law imposes such an obligation, simply suggesting "that certain States consider
diplomatic protection for their nationals abroad to be desirable" (ILC First Reading Draft Articles on Diplomatic
Protection, supra note 60, Commentary to Draft Article 2, par (2)).
[63] Even
decisions of national courts support the thesis that general international law
as it stands does not mandate an enforceable legal duty of diplomatic
protection.
The
traditional view has been challenged in the
Courts in the
(1) R.
v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai
(107 ILR 462 (1985):
"x
x x in the context of a situation with serious implications for the conduct of
international relations, the courts should act with a high degree of
circumspection in the interests of all concerned. It can rarely, if ever, be
for judges to intervene where diplomats fear to tread." (p.479, per Sir John
Donaldson MR)
(2) R.
v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Ferhut
Butt (116 ILR 607 (1999):
"The
general rule is well established that the courts should not interfere in the
conduct of foreign relations by the Executive, most particularly where such
interference is likely to have foreign policy repercussions (see R. v. Secretary
of State for Foreign and Commonwealth Affairs, ex parte Everett
[1989] 1 QB 811 at 820). This extends to decisions whether or not to seek to
persuade a foreign government of any international obligation (e.g. to respect
human rights) which it has assumed. What if any approach should be made to the
Yemeni authorities in regard to the conduct of the trial of these terrorist
charges must be a matter for delicate diplomacy and the considered and informed
judgment of the FCO. In such matters the courts have no supervisory role."
(p. 615, per Lightman J).
"Whether
and when to seek to interfere or to put pressure on in relation to the legal
process, if ever it is a sensible and a right thing to do, must be a matter for
the Executive and no one else, with their access to information and to local
knowledge. It is clearly not a matter for the courts. It is clearly a high
policy decision of a government in relation to its foreign relations and is not
justiciable by way of judicial review." (p.622, per Henry LJ).
(3) R.
(Suresh and Manickavasagam) v. Secretary of State for the Home Department
[2001] EWHC Admin 1028 (unreported,
"...
there is, in my judgment, no duty upon the Secretary of State to ensure that
other nations comply with their human rights obligations. There may be cases
where the United Kingdom Government has, for example by diplomatic means,
chosen to seek to persuade another State to take a certain course in its
treatment of British nationals; but there is no duty to do so."
(paragraph 19, per Sir Richard Tucker).
The South African Constitutional Court
in Kaunda and others v. President of the
Republic of South Africa and others (Case CCCT23/04) recognized the
constitutional basis of the right of diplomatic protection as enshrined in the
South African Constitution, but went on to hold that the nature and extent of
this obligation was an aspect of foreign policy within the discretion of the
executive.
[64] Borchard, E., Diplomatic Protection of Citizens Abroad, 29 (1915).
[65] The concept of rape as an
international crime is relatively new. This is not to say that rape has never
been historically prohibited, particularly in war. But modern-day sensitivity
to the crime of rape did not emerge until after World War II. In the Nuremberg
Charter, the word rape was not mentioned. The article on crimes against
humanity explicitly set forth prohibited acts, but rape was not mentioned by
name. (For example, the Treaty of Amity and Commerce between
CRIMES AGAINST
HUMANITY: namely, murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during the
war, or persecutions on political, racial or religious grounds in execution of
or in connection with any crime within the Jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where
perpetrated.
The Nuremberg Judgment did not make any
reference to rape and rape was not prosecuted.
(Judge Gabrielle Kirk McDonald, The International
Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. Int’l. Comp. L. 667,
676.) However, International Military Tribunal for
the
The first mention of rape as a specific crime
came in December 1945 when Control Council Law No. 10 included the term rape in
the definition of crimes against humanity. Law No. 10, adopted by the four
occupying powers in
The 1949 Geneva Convention Relative to the
Treatment of Prisoners of War was the first modern-day international instrument
to establish protections against rape for women. Geneva Convention Relative to
the Protection of Civilian Persons in Time of War,
Rape is
clearly emerging as a core crime within humanitarian law. (Appleman, Military Tribunals and International
Crimes 299 (1954); Meron, Human Rights and Humanitarian Norms as Customary Law
47 (1989). A major step in this legal development came in
1949, when rape and sexual assault were included in the Geneva Conventions.
Rape is included in the following acts committed against persons protected by
the 1949 Geneva Conventions: “willful killing, torture or inhuman treatment,
including biological experiments; willfully causing great suffering or serious
injury to body or health.” Rape as a violation of the laws or customs of war
generally consists of violations of Article 3 of the 1949 Geneva Conventions,
which, in part, prohibits “violence to life and person, in particular
mutilation, cruel treatment and torture; outrages upon personal dignity, in
particular humiliating and degrading treatment.” (See Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75 U.N.T.S. 31;
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85;
Geneva Convention Relative to the Treatment of Prisoners of War, art. 3(1)(c),
75 U.N.T.S. 973; Fourth Geneva Convention, supra note 23, art. 3(1)(c).
Article 27 of the Fourth Geneva Convention, directed at
protecting civilians during time of war, states that “women shall be especially
protected against any attack on their honour, in particular against rape,
enforced prostitution, or any form of indecent assault.”
Protocol I of the Geneva Conventions continues to expand the
protected rights by providing that “women shall be the object of special
respect and shall be protected in particular against rape, forced prostitution
and any form of indecent assault.” (Protocol Additional to the Geneva
Conventions of August 12, 1949, and
Relating to the Protection of Victims of International Armed Conflicts
(Protocol I), Article 76(1), 1125 U.N.T.S. 4).
[66] For instance,
the International Criminal Court was established to deal with the “most serious
crimes of concern to the international community,” with jurisdiction over
genocide, crimes against humanity, and war crimes, as defined in the Rome
Statute. The ICC Prosecutor can
investigate allegations of crimes not only upon referral from the Security
Council and state parties, but also on information from victims,
non-governmental organizations or any other reliable source (Article 15). See also the Statute of the
International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991, U.N. Doc. S/25704 at 36, annex (1993) and
S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, U.N. Doc.
S/RES/827 (1993).
[67] Scharf, The Letter of the Law: The Scope of the International Legal Obligation
To Prosecute Human Rights Crimes, 59(4) Law
& Contemp. Probs. 41, 59 (1996). Dugard, Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?,
12
[68] O'Shea, Amnesty for Crime in International Law and Practice
35 (2002).
[69] Bruno
Simma’s much-quoted observation encapsulates this feeling of
disappointment:‘Viewed realistically, the world of obligations erga omnes
is still the world of the “ought” rather than of the “is”’The Charter of the United Nations: A
commentary 125 (Simma, ed. 1995). See
Tams, Enforcing Obligations Erga omnes
in International Law (2005). In all cases where this principle has been cited,
even the ICJ has found a way to avoid giving force to the claims based on the erga omnes character of the obligation,
despite having recognized them in principle. In the South West Africa Case, the ICJ declared that an action popularis was incompatible with existing
international law. In the
[70] See
[71] Classical publicists such as
Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law
distinction between jus dispositivum
(voluntary law) and jus scriptum
(obligatory law) to differentiate consensual agreements between states from the
“necessary” principles of international law that bind all states as a point of
conscience regardless of consent. (See Hugonis Grotii, De Jure Belli et Pacis
[On the Law of War and Peace] (William Whewell ed. & trans., John W.
Parker, London 2009) (1625); Emer de Vattel, Le Droit des Gens ou Principes de
la Loi Naturelle [The Law of Nations or Principles of Natural Law] §§ 9, 27
(1758) (distinguishing “le Droit des Gens Naturel, ou Nécessaire” from “le
Droit Volontaire”); Christian Wolff, Jus Gentium Methodo Scientifica
Pertractorum [A Scientific Method for Understanding the Law of Nations] ¶ 5
(James Brown Scott ed., Joseph H. Drake trans., Clarendon Press 1934) (1764)). Early twentieth-century publicists such as
Lassa Oppenheim and William Hall asserted that states could not abrogate
certain “universally recognized principles” by mutual agreement. (William Hall,
A Treatise on International Law 382-83 (8th ed. 1924) (asserting that
“fundamental principles of international law” may “invalidate [], or at least
render voidable,” conflicting international agreements); 1 Lassa Oppenheim,
International Law 528 (1905).) Judges on the Permanent Court of International
Justice affirmed the existence of peremptory norms in international law by
referencing treaties contra bonos mores
(contrary to public policy) in a series of individual concurring and dissenting
opinions.
(For example, in the 1934 Oscar Chinn Case, Judge Schücking's
influential dissent stated that neither an international court nor an arbitral
tribunal should apply a treaty provision in contradiction to bonos mores. Oscar
Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking,
J., dissenting).
[72] Verdross argued that certain
discrete rules of international custom had come to be recognized as having a
compulsory character notwithstanding contrary state agreements. At first, Verdross's vision of international jus
cogens encountered skepticism within the legal academy. These voices
of resistance soon found themselves in the minority, however, as the jus
cogens concept gained enhanced recognition and credibility following
the Second World War. (See Lauri Hannikainen, Peremptory Norms (Jus
cogens) in International Law: Historical Development, Criteria,
Present Status 150 (1988) (surveying legal scholarship during the period
1945-69 and reporting that “about eighty per cent [of scholars] held the
opinion that there are peremptory norms existing in international law”).
[73] In March 1953, the ILC's
Special Rapporteur, Sir Hersch Lauterpacht, submitted for the ILC's
consideration a partial draft convention on treaties which stated that “[a]
treaty, or any of its provisions, is void if its performance involves an act
which is illegal under international law and if it is declared so to be by the
International Court of Justice.” Hersch Lauterpacht, Law of Treaties: Report by
Special Rapporteur, [1953] 2 Y.B. Int'l L. Comm'n 90, 93, U.N. Doc. A/CN.4/63.
[74] See Summary Records of the
877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227, 230-231, U.N. Doc. A/CN.4/188
(noting that the “emergence of a rule of jus cogens banning aggressive war
as an international crime” was evidence that international law contains
“minimum requirement[s] for safeguarding the existence of the international
community”).
[75] Second Report on the Law of
Treaties, [1963] 2 Y.B. Int'l L. Comm'n 1, 52, U.N. Doc. A/CN.4/156.
[76]
[77] While the ICJ
recently endorsed the jus cogens concept for the first
time in its 2006 Judgment on Preliminary
Objections in Armed Activities on the Territory of the Congo (Congo v.
Rwanda), it declined to clarify jus cogens's legal status or to specify any criteria for identifying peremptory
norms. (Armed Activities on the Territory of the
In some municipal
cases, courts have declined to recognize international norms as peremptory
while expressing doubt about the proper criteria for identifying jus
cogens. (See, e.g., Sampson v.
Federal Republic of Germany, 250 F.3d 1145, 1149 (7th Cir. 2001)
(expressing concern that jus cogens should be invoked
“[o]nly as a last resort”)).
In other cases,
national courts have accepted international norms as peremptory, but have
hesitated to enforce these norms for fear that they might thereby compromise
state sovereignty. (See, e.g., Bouzari v.
In Congo v. Rwanda, for example, Judge ad
hoc John Dugard observed that the ICJ had refrained from invoking the jus
cogens concept in several previous cases where peremptory norms
manifestly clashed with other principles of general international law. (See Armed Activities on the
Territory of the
Similarly, the European Court of Human Rights has addressed jus
cogens only once, in Al-Adsani
v. United Kingdom, when it famously rejected the argument that jus
cogens violations would deprive a state of sovereign immunity. Al-Adsani v.
[78] Sztucki, Jus
cogens and the