Harry Roque’s Blog

It was my first year of full time  teaching at UP Law when Dean Raul Pangalangan and I decided that we should teach a separate elective on International Humanitarian Law. This was a result of a series of training programs that the UP Law Center co-sponsored with the International Committee of the Red Cross on the teaching of this specialized field of Public International Law. IHL seeks to limit human sufferings in times of armed conflicts by providing for a non-derogable code of conduct for all fighters which accords protection to those who are not actively involved in the armed conflict, and limits the means ad methods of warfare that combatants may resort to.. Previously, the subject was either taught as part of human rights law, or at best, taught as part of the basic course in public international law.

Teaching a new course in UP could be tough. This is because each and every course offered by the University has to be approved by one collegial body after another. Fortunately, UP Law has found a way around this. A couple of years back, they offered  “shell courses” such as “contemporary problems in International Law” and “ settlement of international disputes” to serve as vehicles to teach new electives at the College. I opted in 2004 to offer IHL under “contemporary problems” since the definition of an armed conflict and the subjects of the law were problematic anyway. Under IHL, the types of armed conflicts governed by the law are only those between sovereign states or between a state and a group in the exercise of the right to self-determination. Both of these conflicts are classified as “international armed conflicts”. An internal armed conflict, on the other hand, involved a state and domestic armed groups that, among others, control territory, openly carry arms, and distinguish themselves from the civilian populations. These definitions effectively exclude conflicts that do not involve a state such as ethnic or clan disputes. There is also a controversy on whether all armed groups with capacity to sustain an armed conflict over time and with sufficient intensity should be considered subjects of the law.

Public law in 2004 was not exactly considered to be the preferred area of concentration for law students. Predictably, they flock to electives that would bring in the big bucks. For instance,  a colleague, Prof. Jay Layug, who teaches “project development”, a must for turn-key infrastructure projects, has had to turn down students to his elective despite the fact that his course attracts no less than 80 students per semester. True, his rock star good looks contribute to the attractiveness of his course. This though is secondary to the fact that almost of our graduates nowadays end up working initially for the big firms and hence, the preference for commercial law electives. I thus had two burden at once: teaching what was then an esoteric field of public law to students many of whom enter law for the money, and the fact that I did not have “rock-star” good looks.

Against all odds, I met the minimum of ten students for the pilot course. While my memory now somehow falters after six years , I do recall that some members of the class include Atty Diane Desierto,, SJD student at Yale and currently a Clerk at the International Court of Justice, Atty. Raymond Sandoval, now a prosecutor at the UN War Crimes Tribunal for the former Yugoslavia, Atty. Camille Sevilla, Chief of Staff of Senator Miriam Defensor-Santiago, Atty. Neil Silva, consultant, Department of Justice, Atty . Ahmed Paglinawan of the UP Law Center, and law practitioner cum soprano, Kaye Balajadia, among others.

Having taught international law part time since 2001, I had by 2004 a clear view of how the law should be taught. Mine was an advocacy: to convince layers and students alike that International Law has become a viable field of practice particularly for litigators, primarily because of the proliferation of modern day international criminal tribunals. But more than that, I felt that international law in particular, was law because of its normative character. Students hence should not just know what its relevant principles are, such as the prohibition on torture and war crimes; but more importantly, students should be able to apply them in everyday life. This meant  thus that students should actually investigate and prosecute cases of torture and war crimes. As a pedagogical tool, this was hugely successful because students acquired not just mastery of concepts, but developed invaluable professional skills as well.

It was in this context that the case of Vinuya vs. Executive Secretary came about. In the middle of the semester, Nelia Sancho, the activist and former beauty queen, called me up for consultations concerning a group called “Malaya Lola’s” whose members were victims of mass rape and sexual slavery during World War Two. She explained that the women sued in Japan for compensation as a consequence of Japan’s internationally wrongful act of sanctioning these rapes during the war  but that Japanese courts dismissed their complaint on the ground that the women had no personality to sue. According to Japanese courts, only states could sue for compensation on behalf of victims of war crimes. The Philippines, apparently, is the only country in the world that has opted not to espouse the claims of its comfort women on the ground that such would be contrary to the San Francisco Peace Pact where we allegedly waived any and all further claims for reparation in exchange for nominal war reparations which we then received.

Nelia, whom I did not know before,  came to me apparently because  one of the “Malaya Lolas ” heard me lecture on IHL in Tarlac where I emphatically said that law exists to provide remedies to those whose legal rights have been violated. In due course, Camille Sevilla made trips to Candaba,  Pampanga to personally interview the Lolas while the rest of the class engaged in “dogged” research for a legal remedy. The result was a petition that argued that a treaty obligation, such as the renunciation clause in the San Francisco peace pact, cannot prevail over an absolute  and non-derogable prohibition  (“jus cogens”) on rape and the resulting  obligation to make reparation and to pay compensation to the victims thereof.

After the students graduated, the task of continuing with the case fell on Atty. Romel Bagares , bachelor par excellance, who was a former journalist for eight  years before being called to the bar. It  he who made the discovery that many passages in the decision were lifted from foreign sources without proper attribution.

Vinuya has turned out to be a very successful pedagogical tool.  It started as a class project. Let’s see how it ends.#30#