ISIS and International Humanitarian Law


The terrorist group Islamic State of Iraq and Syria (ISIS) presents complicated issues of classification under International Humanitarian Law (IHL).

IHL is the law specifically applicable in times of armed conflict. It seeks to insulate non-combatants such as civilians from all adverse consequences of armed conflicts. It does this by providing non-combatants protection—that is, they should not be targeted—and by limiting the means and methods of warfare. Specifically, it requires all fighters and combatants to distinguish between valid targets and those with protection, and limits targets as those whose destruction will contribute to the military objective: the complete subjugation of the enemy with minimal collateral damage.

Because IHL is a lex specialis, it cannot apply unless there is in fact an armed conflict, which is sufficiently intense and sustained over a period of time. If there is such a conflict, the type of conflict, be it international or internal, will then determine what the applicable law is. International armed conflicts, or those between states or a state and a group engaged in a war of national liberation, is governed by human rights law, the Geneva and Hague Conventions and by common article three. Internal armed conflicts, on the other hand, are conflicts between a state and an armed group that controls territory, has a military hierarchy, and ha shown itself capable of complying with IHL.

It is the issue of whether ISIS is engaged in an international or internal armed conflict that is controversial. Depending on what type of a conflict it is engaged in, fighters, in turn, would have right of combatants or simply be treated as detainees. This is because the status of a combatant, which among others, leads to the protected status of a prisoner of war, only exists in international armed conflicts. Likewise, immunity arising from one’s participation in an armed conflict exists only in international armed conflicts.

The source of the controversy is because while ISIS is not a state, although its insane members say it is, it nonetheless operates across national boundaries making the armed conflict apparently international. But the requirement of IHL is not that the conflict must cross boundary lines. It is that it be fought by states or by a state and a group engaged in a war of national liberation. ISIS, with its penchant for beheadings of innocent civilians, including journalists, cannot be said to be engaged in a war of national liberation against a colonial or racist regime.

On the other hand, ISIS, while more apt to be engaged in an internal armed conflict since it has territory and apparently a military command, has shown itself incapable of complying with the rules and customs of warfare. Again, its penchant for beheadings is proof of this. Moreover, the armed struggle is directed not just against a state; it is against at least two—Iraq and Syria. Strictly speaking, their barbaric acts appear to be directed against the entire civilized world.

Fortunately or not, the US involvement against ISIS in the form of targeted air strikes has resolved the problem of characterization. Under IHL, the use of air strikes will undoubtedly qualify the application of IHL. Moreover the fact that the US is now using its armed forces against the terrorist group has made the conflict an international armed conflict because regular armed forces of a state is now utilized in a foreign territory.

The issue today has thus gone beyond what conflict the ISIS can pose. Instead, we are now engaged in a debate on whether the air strikes are legal under international law. Ironically, the most unlikely leader has triggered the debate: the Pope himself.

Pope Francis has been vocal against the unilateral use of force even against the ISIS. This is surprising if only because the ISIS has openly declared war against all Christians. He has been arguing that instead of unilateral use of force the UN community, through the Security Council, should authorize the use of force against the terrorist group. I find myself sympathetic to the Pope’s cause. Imperfect as the UN Charter maybe, the type of limited peace that we have achieved since World War II has been anchored on our adherence to the prohibition on the use of force. If we deviate from this established norm, we open ourselves to the possibility of resort to further unilateral force, which will shatter our temporary peace.

In any case, jus in bello is distinct from jus ad bellum. Regardless of the legality of the use of force, IHL, because it is applicable, will apply. This means that individuals behind ISIS, regardless of where they may be found, will be prosecuted for war crimes. Let this be fair warning to the loonies who are toying with the idea of supporting this terrorist group.

Lessons from Boston


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Lessons from Boston.

Copadoccia, Turkey—I was in Boston with my family just two weeks ago. I thought it was important for my two children to visit the city and appreciate its anti-colonial heritage. The US was not always its own state. It too had to struggle for its independence, much in the same way that we did against the Spaniards and ironically, against them.

Like many tourists, we did the freedom trail, so-called because it allows visitors to visit historical landmarks of the American Revolution. This includes the house of Paul Revere who warned the

American militias of the upcoming invasion of the British, as well as Faneuil Hall, which was literally a meeting place where speakers like Samuel Adams and James Otis advocated freedom from Great Britain. It also includes a recreated colonial vessel where the tea party is reenacted to remind the American youth of today of the trigger that established an independent American state.

While it was unfortunate that after triggering a liberal tradition that is today acknowledged as the non-derogable right to self-determination— a people’s right to choose their political status which includes the right to be independent —the American people would later be colonials themselves albeit over only colony, the Philippines. But this sad fact notwithstanding, Boston’s contribution

to modern-day democracy cannot be denied. It also includes a written constitution, which guarantees rights of every human being as being inalienable.

This must have been why the deranged madmen behind the bombings at the Boston marathon targeted the city. Their goal was not only to inflict panic in the mind of the general public but also to send the grim message that America’s cradle of democracy is under attack.

It is gratifying though that on my last day in the United States, the general impression was that Boston was not a city to be cowed. After the dead have been mourned and after the sick have been attended to, the city seems to be up and about eagerly picking up the pieces. The message that the brave survivors of this terroristic attack were sending the world was that while they were terrified, they will rise again. And that appears to be what they have done.

Terrorism, of course, be it in Boston, in Syria, or in Palestine should be condemned in the strongest manner possible. Even in times of war, civilians are accorded protection precisely because the civilian populations ought to be spared from the adverse consequences of all kinds of warfare. This is why any act that tends to spread fear or panic in the mind of the public is condemned, much in the same way that targeting civilians is made criminal in times of armed conflict.

Human beings possess rights that are inalienable. Parts of these are the non-derogable right to life and the right to personal security. Both war crimes and terroristic acts infringe on and violate these rights.

Be that as it may, there are important lessons to be learned from the Boston bombings. Primary among these is the importance of a police force that can actually investigate acts of terrorism and apprehend their suspected perpetrators. It did not take long for the Boston police to process forensics evidence, identity the suspects and actually apprehend them. In the Philippines, our police agents’, until very recently, are told to identify first the suspects before processing the evidence. And while in Boston, it was physical evidence that proved effective in identifying the perpetrators of the crime; in our country, the police, either because of lack of capacity or downright laziness, will rely almost wholly on testimonial evidence. The problem with this approach is that testimonial evidence is either cheap, or may be the result of police short-cuts, such as torture.

How we envy the people of Boston. In less than a week, the perpetrators of the bombings were identified and apprehended, although one of them was killed in the process. In the Philippines, a student of mine, who is now a lawyer, is still awaiting for someone to be charged for the brutal murder of her father, a UP graduate editor and publisher of a local paper in Pagadian City. Her late father and her mother, also murdered some nine years after her father, will both be unable to attend her oath-taking as a lawyer. Likewise, the family of Navy Ensign Philip Pestano is still awaiting action form the Department of Justice in connection with the murder of their son.

Likewise, the Barrameda and the Ortega families can only dream of justice for the death of their loved ones. And let’s not even talk about the victims of the Maguindanao massacre, many of whom have already sunk into despair.

So the lesson is clear: terrorism and lawlessness can strike anywhere. But in civilized societies, the pillars of the criminal justice system: the police, the prosecutors, the courts, and the community-

will ensure that lawless elements will be investigated, prosecuted and punished for their acts.

I wonder when we will finally have a civilized Philippine society.

Centerlaw Submits Korean Supreme Court Decision on Comfort Women to Philippine Supreme Court


The Center for International Law (Centerlaw) asked the Supreme Court today to consider an August 30, 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial case of Filipino Comfort Women –otherwise known as the Malaya Lolas case – still pending before it.The Korean case arose from a suit filed by Korean Comfort Women before the South Korean Constitutional Court against their own Minister of Foreign Affairs. In their suit, they questioned the refusal of the government to settle the issue of whether or not there is still liability on the part of the government of Japan for the atrocities committed by its soldiers during World War II against them. The Korean Court granted the Petition of the Comfort Women and ordered that its government settle the issue with the government of Japan.

In its decision, the Korean Court stated that blocking the payment of claims is directly related to the “infringement of fundamental dignity and value of human beings”. It further found that possibility of strained relations and problems with diplomatic ties is no excuse as it will be more constructive for both Korea-Japan diplomatic ties and Korea’s national interest to call on the Japanese government to take on its legal responsibility toward the victims.

It would be remembered that on April 28, 2010, the Philippine Supreme Court rendered judgment on the petition before it asking the Court to compel the Philippine government to espouse the claim of Filipina Comfort Women against the government of Japan ( Vinuya v. The Hon. Executive Secretary, G.R. No. 162230, April 28, 2010).

The suit stemmed from a petition filed in 2004 by 70 members of the Malaya Lolas Organization (Malaya Lolas), who survived the Mapanique, Tarlac siege by the Japanese Imperial Army. In their petition, they charged that were victims of systematic rape and sexual slavery committed by the Japanese, and asked the High Court to compel the government to espouse their claims against Japan.

The Philippine Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism – which is a word for word lifting of pages from the three articles without the proper attribution – it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War Two have no further legal remedies.

All three plagiarized articles by foreign authors –an article published in 2009 in the Yale Law Journal of International Law, a book published by the Cambridge University Press in 2005, and, an article published in 2006 in the Western Reserve Journal of International Law – argue otherwise.

A Motion for Reconsideration and a Supplemental Motion for Reconsideration subsequently filed by the Center on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources are pending with the Court. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”

Lawyer Romel Bagares, one of the petitioner’s counsels, explained why the Petitioners seek to have the Korean case admitted into the records of the Philippine case:

“Unlike our own Supreme Court, the Korean Court saw that its government’s refusal to settle the issue of liability with regard to the case of the Comfort Women was a violation of its Constitution and violated the Constitutional rights of its Comfort Women. Sadly, our own Supreme Court did not see it the same way in its 2010 decision. We are hoping that the Korean decision will provide necessary guidance to our own Supreme Court and they find wisdom in the reasoning of the Korean Court.”

An ethics investigation called by then Supreme Court Chief Justice Renato Corona cleared Justice Del Castillo of wrongdoing. The Committee’s exoneration of Del Castillo was later used as one of the grounds for a petition filed with Congress to impeach the Chief Justice. Del Castillo himself was found liable for impeachment by the House Committee on Justice but for lack of time, the case against him could not proceed.

The Supreme Court also sanctioned 37 professors of the UP College of Law after the latter issued an open letter criticizing the High Court for the alleged plagiarism and twisting it committed in the Vinuya case.

Malaysia’s crimes against humanity?


 

It’s increasingly becoming clear that Malaysian authorities have no regard whatsoever for their duty under international human rights law to protect and promote the right to life of the Filipinos in Sabah, and their right to a judicial determination of guilt before the imposition of the death penalty. To date, the death toll has reached 63, while the number of individuals who have been apprehended on mere suspicions that they are sympathizers of the Sultanate of Sulu has reached almost 100. And yet, there does not appear to be any sign that Malaysian authorities will even slow down in their resolve to crack down on the historical owners of Sabah.

The little good news that we have is at long last, the Philippine government has sent a diplomatic note to Kuala Lampur asking Malaysian authorities to “clarify” reports about human rights violations. Media has been reporting wide- scale violations of human rights violations against Filipino nationals in Sabah including resort to pre-trial detentions, torture, and inhumane treatment. Even without dwelling on the Philippine title to Sabah, the Philippines should never abdicate its obligations to its nationals when reports of wide-scale violation of their rights become rampant. Hence it was correct for our authorities to send this note verbale.

But Malaysia appears hell bent on clamping down on the rights of all Filipinos in Sabah, whether or not they are involved in the current standoff. Even before this latest Sabah incursion, Malaysia has been afflicted with extreme paranoia that Filipinos may physically constitute a majority of the population in Sabah. This has led to regular mass deportations of Filipinos from Sabah, almost all of which have been characterized as inhumane. One incident stands out in terms of barbarity. In 2002, when Malaysia deported no less than 62,000 Filipinos from Sabah, the country was shocked to know that in addition to the inhumane nature of the deportations, a Malaysian guard added salt to open wounds by raping a 13-year-old girl in one of the Malaysian immigration facilities. That incident has all been forgotten.

But Malaysia better think twice before it proceeds to commit further criminal acts under international law. While there is still a dispute on whether the current stand-off is now governed by international humanitarian law—the 200 individuals sent by the sultanate of Sulu to reclaim Sabah are not state agents — international law still penalizes acts which are systematic or widespread attacks against civilians. This is known as crimes against humanity. Unlike war crimes, crimes against humanity do not require a nexus with armed conflicts. It suffices that the inhumane acts, be it deportation, arrest, or inhumane treatment, be widespread or systematic.

While murder remains the most frequent manner by which this crime may be committed, it is by no means the only way to commit it. Under international law, it may also be committed, among others, through extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, persecution against an identifiable group on national (against Filipinos, for instance) or other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury. The list appears tailor made for the inhumane acts that Malaysian authorities have been committing against our countrymen in Sabah.

The beauty of international criminal law is that unlike human rights law, it utilizes penology as a means of enforcement.  This means that while the enforcement of human rights is through a shaming machinery where countries in breach of their human rights obligations are shamed into compliance either through the periodic reviews of the UN Human Rights Council or the treaty monitoring bodies, international criminal law actually provides for imprisonment for those who will breach the law. And unlike domestic legal systems, these international crimes are not subject to prescription, may be tried by any court regardless of where they may have been committed, and does not recognize sovereign immunity as a defense. Simply put, Malaysian authorities who committed these crimes against our nationals will end up in jail. If not in Malaysia, then in the Philippines, at the Hague, or in the territory of any state that is duty-bound to prosecute them for their acts.

Interestingly enough, no less than Malaysian Prime Minister Najib Razak may incur liability for these crimes if it is proven that he knew or should have known about these crimes being committed and he did nothing to prevent them or to investigate, prosecute and punish the perpetrators of these crimes. This is known as Superior Responsibility. It may not be today, it may not be in Malaysia, but surely sometime in the future and somewhere in this planet, he will be held responsible for these crimes on the basis of superior responsibility. This was the lesson that the Nazis learned in Nuremberg. This too was the lesson learned by Saddam Hussein, Slobodan Milosevic, Charles Taylor and Tomoyuki Yamashita.

Najib should stop these crimes lest he join the roster of the infamous.

Awed during the second national IHL summit


222276_10151375614154289_227657715_n(I delivered the keynote address entitled “In Awe” during the Second International Humanitarian Law Summit at Malacañang yesterday. I am publishing here excerpts of my address where I explained why I was “in awe”.)

I am awed because not too long ago, civil society — which I belong to, was excluded in the task of disseminating and ensuring compliance with our state obligations under IHL. We do not know exactly why the past GMA administration opted to expel civil society from the National IHL Committee. x x x Whatever the real reasons may have been, what we are certain is that the administration that banned us was the same administration that showered adulation on a war criminal, the Butcher Jovito Palparan who today, has gone on “voluntary disappearance and is now a fugitive from justice. What we also know is the same administration that banned us was the same regime that UN Special Rapporteur Philip Alston condemned for its gross breaches of human
rights law. Specifically, Alston, whom a former Secretary of Justice has referred as a “muchacho” of the UN, confirmed that extralegal killings, even if it is still unsure how many there have been, are
evidence that the Philippines is in breach of its obligation to protect and promote the right to life.xxx

I therefore stand before you today as a member of civil society- triumphant- that in an administration that has received a genuine mandate to govern, we are recognized anew as an invaluable partner of the state in the discharge of its obligations under International Law.

I am awed, too, at how a few years can indeed make the difference.

In 2009, Congress enacted RA 9851 that defined war crimes, crimes against humanity and genocide as being criminal. Furthermore, it is a law that codified the applicability of the exercise of universal
jurisdiction for these crimes, the fact that these prosecutions are not subject to prescription, and the fact that the defense of sovereign immunity, including that of a sitting President, may no longer be invoked as a defense for the prosecution of these crimes. xxx

Almost immediately after assuming office, PNoy did what we all thought would talk two lifetimes to realize: he sent the Rome Statute of the International Criminal Court for concurrence of the Senate, paving the way for our membership to the International Criminal Court. Our membership to the ICC is without a doubt a signal to one and all that the Philippines will no longer allow impunity to persist.

The Philippines further ratified and became a party to the 1977 First Additional Protocol to the Geneva Convention and the Optional Protocol to the Torture Convention. Under the additional protocol, the Philippines now ranks as amongst the countries that have undertaken to insulate civilian populations from the adverse consequences of war. Our ratification of the Optional protocol to the Torture Convention, in turn, had the effect of recognizing the jurisdiction of the Torture Committee, the treaty monitoring body for the Convention Against Torture, and will enable our nationals to file individual complaints with the said Committee when they feel that their rights, as provided in the Convention, are not being promoted and promoted by our government.

Finally, in recognition that enforced disappearance is the ultimate form of torture for its victims – who do not know if they should weep for the loss of their loved ones or still hope that they will be
found — Congress has passed its final version of the anti-enforced disappearance law…This promises to be the first law of its act in the whole of Asia. I am confident that the President will either sign it into law or will allow it to lapse into one.

I stand today before you also in awe with the tremendous challenges ahead of us …our burden to discharge our obligations under the aut dedere aut judicare principle, or that states must investigate and punish those who commit international crimes, can only be discharged if our domestic legal system is able to investigate, prosecute and punish those who will commit war crimes and crimes against humanity.

Already, our experience with the prosecutions of ordinary murders,such as the Ampatuan massacre case, the Doc Gerry Ortega case, the Binayug torture case and the unresolved enforced disappearances of Jonas Burgos, the three Islamic scholars who disappeared in the sterile premises of Terminal 3 of the Naia in January of this year, and even the disappearance of prominent lawyer, Atty. Frank “Joe” Zulueta, underscore a tremendous structural challenge now facing us. And while
we acknowledge that the destruction of our criminal justice system was the handiwork of the past dispensation, the task of governance demand that it is this administration that should now rebuild these damaged institutions.

Let us now build the capacity of the PNP to utilize forensic evidence rather than rely on testimonial evidence. The latter is oftentimes cheap or readily available through resort to torture. Let us demand from the National Prosecution Service a better conviction rate- definitely better than its current 1 percent conviction rate for cases involving extralegal killings as reported in the Pareno report commissioned by the Asia Foundation.

Let us dialogue with the Judiciary and discuss if we should instead adopt the inquisitorial system where it is the judge that gathers the evidence in the resolution of a judicial dispute rather than the current adversarial system where the judge is a passive recipient of evidence adduced by the parties.

Perhaps, the ultimate challenge is to aim for the time when IHL becomes a purely academic field of study in this country. This will only happen when we have achieved a lasting and just peace, when armed conflicts remain part of our history, but no longer a part of and not our daily lives. In sa Allah.

Impunity for Nazi crimes


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

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

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

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

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

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

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

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

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

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

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

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IHL: The Project


The Philippine Red Cross has designated the month of August as International Humanitarian Law Month. This is a an opportunity to write about recent developments in the law applicable in times of armed conflict.
Last year, the United States Supreme Court took a million steps backward when it rendered its opinion in the case of Holder vs. Humanitarian Law Project. Before this decision, the same court was praised for a series of decisions which declared: one, that the war against terror is governed by IHL; and two, that the procedure adopted by the Guantanamo Military Commission, which deprives the respondents access to evidence submitted against him- is in violation of common article three to the Geneva Conventions for failing short of standards of fairness in judicial proceedings recognized by civilized nations. The case of Holder forfeited almost all gains derived from the earlier cases of Hamdi, Hamdan and Boumediene.

According to its Web site, The Humanitarian Law Project is a “is a non-profit organization founded in 1985 dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law”. One of its projects is the training of members of the Kurdistan Workers Party in Turkey and the Tamil Tigers in Sri Lanka on the existing UN Human Rights mechanisms, as well as capacity building to equip members of these two organizations with knowledge and skills to enable them participate in peace talks. Both groups have been classified by the US State Department as terrorist groups.

The problem for the Humanitarian Law Project started when the US Congress legislated the Patriot Act, a law specifically crafted to deal with post-September 11 terrorism. Among others, the law prohibits the giving of “material support to groups designated as terrorists”. Penalty provided for breach of this prohibition is prison term of up to 15 years of imprisonment.

The Humanitarian Law Project then filed a petition for declaratory relief to determine if the resources it is allocating to promote peace in Kurdistan and Sri Lanka may be considered as breaches of the Patriot Act. In a major blow to the promotion of human rights and humanitarian law, the US Supreme Court said that it did: “Congress meant to preclude any type of aid to such groups because this assistance could help to “legitimate” the terrorist organization. Aid of all types also could help the group conserve resources that could then be channeled toward terrorist activities”.

In a dissenting opinion, Justice Breyer argued that while acknowledging the importance of giving the political branches great deference in matters of national security, the court’s reading of the law was too intrusive on the rights of the Humanitarian Law Project and its members. Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights or freedom of expression and freedom of association.

On the day the Supreme Court ruling was promulgated, David Cole of the Center for Constitutional Rights, counsel for the Humanitarian Law Project, after which we patterned our own Center for International Law, declared: “According to today’s Supreme Court decision, advocating for human rights and peace can be prosecuted as a ‘terrorist’ crime, punishable by 15 years imprisonment. Under this ruling, it does not matter that the speaker intends to support only nonviolent activity, and indeed seeks to discourage a resort to violence. It does not matter if the speech in fact convinces its listeners to abandon violence.”

It would seem hence that while the US Supreme Court may be credited for strengthening the binding nature of IHL by ruling that the war against terror is governed by international law, it nonetheless stunted efforts by civil society to promote peace by encouraging fightersto lay their arms and resort to the rule of law instead. “You win some, and lose some,” as the saying goes.

Meanwhile, back home, President Nonoy Aquino, son of democracy icons Ninoy and Cory Aquino, ironically declared that the notorious Human Security Act will be amended to do away with the requirement of notice as a precondition for surveillance. As stated by Senate President Juan Ponce Enrile, principal author of the law, he is not aware that there was this provision in the law, a view which I confirm. Nonetheless, heed must be given to the warning given by the UN Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism:: “respect for human rights is a cornerstone of any successful fight against terrorism”.

Kudos too to my two favorite Senators, Mirian Defensor-Santiago and Loren Legarda, for successfully sheperding the Senate concurrence of the Rome Statute of the International Criminal Court through the sub-committee level. There could be no better way to celebrate IHL month than becoming a state party to the ICC!