The Ongoing Search for Justice for Victims of the Japanese War Crimes in Mapanique, Philippines


This post was published in the Oxford Human Rights Hub at http://ohrh.law.ox.ac.uk/?p=2764

On November 23, 1944, Japanese troops descended on the town of Mapanique in the Philippines. The troops gathered  men and boys in the town and proceeded to castrate them. Afterwards, the men were forced to put their severed sexual organs in their mouths before they were burned to death en masse. Women and girls were marched to what is known today as “Bahay na Pula” (red house) in San Ildenfonso, Bulacan. There, they were interred and repeatedly raped.

Members of the Malaya Lolas rallying outside the Philippine Supreme Court

The magnitude of the Japanese cruelty in Mapanique can be attributed to several causes. The town was known to be a hotbed of resistance to Japanese rule. It was in Central Luzon where the guerilla movement, HUKBALAHAP, was formed only months before the siege. One of the movement’s most respected leaders Commander Dayang Dayang was a native of Mapanique. The Japanese troops were also growing desperate because they knew they had already lost the war.

Fifty years later,  inspired by the revelations of South Korean women who publicly admitted that they were victims of the Japanese comfort women system, about 60 victims of war crimes from Mapanique formed the group known as Malaya Lola’s, or liberated grandmothers. While primarily an organization of women who were raped by the Japanese during the Mapanique siege, it also includes in its roster women whose husbands, sons and other male loved ones became victims of Japanese war atrocities.

In 2004, the Malaya Lolas filed suit in the Philippine Supreme Court to compel the Philippine government to espouse, or sponsor, their claims for compensation from the Japanese government. Prior to this suit, the Malaya Lolas had a suit for reparations dismissed by Japanese courts on the ground that the women do not have personality to sue under international law. The Japanese courts opined that the Philippine government must sponsor their claims. Hence, the case Vinuya et. al. versus Executive Secretary.

The position raised three points: one, mass rapes against civilian populations have always been subject of a non-derogable prohibition in times of war; two, it is also subject of a duty for all states to investigate, prosecute and punish the perpetrators thereof. And three, the commission of mass rape will not only entail the duty of a state to pay compensation as a consequence of the doing an internationally wrongful act, it is also the basis for individuals to incur individual criminal responsibility.

To counter the Philippine Government’s position that further reparations are barred by a waiver which the Republic had signed, the women argued that the waiver is null and void for being contrary to public policy and also that the state cannot waive a right that inures to its nationals.

6 years after the filing of the Vinuya case, and after 20 of the original petitioners had died, the Philippine Supreme Court unanimously dismissed the Malaya Lola’s petition. In its 33 page decision, the Court said that the claims for compensation are barred because of the San Francisco Peace Pact. In exchange for nominal war reparations, the government was said to have waived any and further claims for compensation from Japan, a view consistently espoused by the Department of Foreign Affairs. Furthermore, the court ruled that while it commiserates with the sufferings of the women of Mapanique, this, allegedly, is one instance where there is a violation of right but bereft of a legal remedy. The Court also said that while rape is prohibited, there is no non-derogable obligation to investigate, prosecute and punish those who committed mass rape as a war crime. This decision is the second siege of the women of Mapanique.

Fortunately, the women of  Mapanique have found new allies in their continuing search for justice. Pending resolution of their motion for reconsideration, the Korean Constitutional Court, ruling on a petition with the same issues as those in the Philippine Supreme  Court, ruled that the Korean government must espouse the claim of the Korean comfort women. Further, the European Center for Constitutional  and Human Rights filed intervention in the Philippine Supreme Court to argue that pacta sundt servanda cannot prevail over the jus cogens prohibition on rape. The intervention of the ECCHR in the case was facilitated by a non-profit organization, the Bertha Foundation, which has been funding young lawyers in both the ECCHR and Centerlaw, and counsel of the comfort women in the Philippine case.

A MOOT WITH REAL VICTIMS


A MOOT WITH REAL VICTIMS

It was a case of make believe mimicking reality. From February 27 to 28, students from five law schools competed in the Philippine rounds of the most prestigious moot competition in the world, the Philip Jessup moot court competition. Simulating oral arguments before the International Court of Justice, students argued both sides of a problem involving the most contentious issues facing international law today.

For instance, given the general prohibition on the use of force which recognizes only two exceptions, those of self- defense and when authorized by the United Nations security Council; should a third exception, based on contemporary state practice, that of intervention on humanitarian grounds- now be recognized? There too was the issue of which government should be recognized by the United Nations and its organs: the regime that exercises effective control overt the territory and the inhabitants of a state, or the government that was democratically elected albeit deposed through a coup de etat but continues to be recognized as being legitimate by an overwhelming number of states. This was the dilemma faced by the international community in dealing with rebel forces in Libya.

But perhaps, what was most relevant to the Philippines was the third issue. Under the problem, several civilians were forcibly made to work in munitions factory during an armed conflict. Long after the war, these individuals attempted to seek reparations from the state that subjected them to forced labor. They initially filed suit against the state in the latter’s court but the same was dismissed on the basis of prescription. They then filed suit in the court of their own states, but their claims too were dismissed on the basis of sovereign immunity from suits. Intervening meanwhile was a decision of a regional human rights court that declared that the state of nationality of the victims must give them recourse under their domestic law and in their domestic courts. This prompted the domestic court of claimant’s nationality to exercise jurisdiction leading to a money judgement against the other state that resorted to forced labor and levying on execution on assets that were non-diplomatic in character.

I was most impressed by the law schools from the provinces that joined the moot court competition for the first time, to wit: Silliman and the University of the Cordillera. These two law schools proved once and for all that international law is no longer the monopoly of Manila law schools. Their students proved to be even more articulate than those coming from the capital. With a little more experience in mooting, I am sure that they will soon represent the country in the world competition held annually in Washington, DC, USA.

Congratulations to my students from UP who were adjudged the winner in the competition. Ironically, the UP team argued the side that maintained that victims of war crimes could no longer recover reparations when their home states had signed a peace treaty that renounced any and all further claims for reparations. This is the position of our government in the real case of Vinuya, the comfort women’s case. Even more ironical is the fact that the Ateneo team, whose alumni include  both the Chief Justice and Associate Justice Mariano Del Castillo , argued the side in favor of the comfort women: that the peace pact could not prevail as against the jus cogens norms that forced labor is a war crime and that the state responsible for it should pay reparations. One of the Ateneo coaches told me that the plight of the comfort women, and the fact that the government should espouse their claims was the subject of his thesis. At the back of my mind, I was hoping he  will say this to Justice del Castillo or his researcher responsible for the court decision in Vinuya.

I also commend the Philippine Association of Law Schools Deans under the able leadership of its  President,  Dean,Amado Valdez and its Chairman, Dean Perry Pe,  for the impressive manner by which they conducted the national rounds. Special credit should go to Dean Sol Mawis of the Lyceum University Law School who acted as this year’s administrator for the competition. This year’s national rounds was clearly one of the  best in the history of Jessup in the Philippines.

Meanwhile, the real life victims of war crimes -deprived of a legal remedy, continue to pray and hope for justice. They have said that the impeachment of Justice del Castillo would be a step towards the right direction

An Open Appeal to International Legal Scholars by Professor Diane A. Desierto, University of the Philippines College of Law


Dear friends and fellow legal scholars,

I apologize for this long note, but I thought I should set the record straight on the maelstrom of ongoing institutional persecution against the UP Law Faculty, where I serve as a faculty member. Several hours ago, a majority at the Philippine Supreme Court issued an unprecedented contempt order for the “Statement of the Faculty of the UP College of Law”, naming 37 out of 81 faculty members (including five present and former deans, a retired Justice of the Supreme Court now back in the faculty, among other senior academics and junior faculty members) whose physical signatures appeared in the Statement. Many faculty members support this Statement, but, as is customary, did not need to physically sign the Statement so long as we signified our support over email. For this reason, many of us understand the contempt order to eventually extend to all 81 members of the UP College of Law. All our bar licenses, without which we cannot teach, work, or practice as lawyers, are now at stake.

Let me narrate the brief factual background of this case:

1. On April 28, 2010, the Philippine Supreme Court issued its decision in Isabelita Vinuya et al. v. Executive Secretary et al. (full text of this decision available at:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm ). This case involved a certiorari petition of most remaining Filipina survivors of the “comfort women system” during World War II, asking the Court to compel the Executive Branch to exercise its constitutional duties and international obligations, in order to ensure these Filipina survivors’ their rights to redress. I wrote this petition as a law student of UP Law in 2004 along with UP Law Professor Harry Roque, theorizing then that our broadly universalist 1987 Philippine Constitution imposed unique constitutional duties on the Philippine President to observe our international legal obligations, including the right to redress for war crimes, mass rapes, and sexual slavery. Professor Roque and I published our analysis and theory of the petition in 2006, in the Journal of International Law of Peace and Armed Conflict. (full text of this available at: http://www.ruhr-uni-bochum.de/ifhv/documents/huvi/huv_2006/3_2006.pdf Relevant pages are pp. 91-98).

2. The Vinuya decision denied the petition. Professor Roque filed an initial Motion for Reconsideration, subject to the submission of a more extended Supplemental Motion for Reconsideration (Supplemental MR) under the Philippine Rules of Court. Professor Roque and his colleague, Attorney Romel Bagares, closely coordinated with me in the preparation of the Supplemental MR . After we discussed the legal arguments, I requested Attorney Bagares to recheck all sources cited in the Vinuya decision, as is customary for us in preparing appellate pleadings. Several days later, Attorney Bagares and Professor Roque discovered that many significant portions of the Vinuya decision appeared to have been lifted without attribution from the works of International Law authors (Professor Evan Criddle and Professor Evan Fox-descent’s 2009 Article in the Yale Journal of International Law, titled “A Fiduciary Theory of Jus Cogens”; the book of Dr. Christian Tams, titled Enforcing Erga Omnes Obligations in International Law, published by Cambridge University Press; and an article by Mark Ellis, Executive Director of the International Bar Association, in the 2006 volume of Case Western Journal of International Law, entitled “Breaking the Silence: On Rape as an International Crime”). What was worse than the lifting without attribution of these sources was that the Vinuya Decision completely twisted what the authors said in their works. Professor Roque and Attorney Bagares decided to file the Supplemental MR inviting the Philippine Supreme Court’s attention to this grave matter, showing that the misrepresentation of these works erroneously laid the foundation for the Court’s decision to deny the petition. The Supplemental MR also included the rest of the arguments of the petition. The full text of the Supplemental MR can be found here:http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/

3. All International Law professors/authors came forward with their separate complaints to the Philippine Supreme Court regarding the misuse of their works. Unfortunately, FB doesn’t have an attachment function yet, so I will repost in a separate note the letters of Dr. Christian Tams, Mark Ellis to the Philippine Supreme Court. Professor Evan Criddle posted his complaint on Opinio Juris at this link:http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/

a) Professor Criddle told Opinio Juris: “Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms. Our article emphatically asserts the opposite.”

b) Dr. Tams’ letter said: “The relevant passage of the judgment is to be found on p. 30 of your Court’s Judgment, in the section addressing the concept of obligations erga omnes. As the table annexed to this letter shows, the relevant sentences were taken almost word by word from the introductory chapter of my book Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005). I note that there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the Judgment, I do not think it can be considered an appropriate form of referencing. I am particularly concerned that my work should have been used to support the Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my book’s central thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm place in contemporary international law….With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to support – as it seemingly has – the opposite approach. More generally, I am concerned at the way in which your Honourable Court’s judgment has drawn on scholarly work without properly acknowledging it.”

c) Mr. Ellis’ letter said: “My attention was called to the Judgment and the issue of possible plagiarism by the Philippine Chapter of the Southeast Asia Media Legal Defence Initiative (SEAMLDI), an affiliate of the London based Media Legal Defence Initiative (MLDI) where I sit as a trustee. In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28, of the Judgment of your esteemed Court. I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.”

4. When Philippine national media carried these complaints, the Philippine Supreme Court did not appear disposed to take them seriously. The Court Spokesperson/Court Administrator, Midas Marquez, stated that the “You can’t expect all justices of the Supreme Court to be familiar with these law journals.”http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100721-282283/High-court-not-probing-plagiarism

5. In light of the apparent plagiarism and twisting of the works in the text of the Vinuya Decision and the Court’s predispositions, the UP Law Faculty issued a Statement asking the Court to take responsibility and to provide guidance to the Philippine bench and bar. The UP Law Faculty, headed by the present Dean Marvic M.V.F. Leonen and other law deans, expressed alarm at how the works were misused to deny a key petition of comfort women survivors, and asked the ponente of the Vinuya Decision, Justice Mariano del Castillo to voluntarily resign from the Court. The full text of the UP Law Faculty Statement can be found here:http://harryroque.com/2010/08/09/restoring-integritya-statement-by-the-faculty-of/

6. On Friday, October 15, 2010, a majority of ten members of the Philippine Supreme Court issued a resolution denying that Justice del Castillo had committed plagiarism and misuse of plagiarized works, holding that Justice del Castillo’s clerk/court researcher accidentally deleted the attributions, which could not have been detected since “the Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned.” The full text of the decision can be found here:http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC.htm

7. The newest member of the Court, Justice Lourdes Aranal-Sereno, strongly dissented along with (Justice Conchita Carpio-Morales) from the Court’s findings and showed why plagiarism and misrepresentation was committed not just through deletions of attributions, but due to the deliberate inclusion of phrases that tried to convey the opposite of what the authors’ works said. Saying that the court will be remembered for saying Del Castillo did not commit plagiarism because there was “no malicious intent” to pass off someone else’s works as his own, Justice Sereno added that the ruling of the court’s majority has caused “unimaginable problems” for the Philippine academe. She explained decisions on future cases of plagiarism committed by students will be based on the court’s ruling that malicious intent must be present to constitute plagiarism. “Unless reconsidered, this Court would unfortunately be remembered as the Court that made ‘malicious intent’ an indispensable element of plagiarism and that made computer-keying errors an exculpatory fact in charges of plagiarism, without clarifying whether its ruling applies only to situations of judicial decision-making or to other written intellectual activity,” said Sereno. “It will also weaken this Court’s disciplinary authority ─ the essence of which proceeds from its moral authority ─ over the bench and bar. In a real sense, this Court has rendered tenuous its ability to positively educate and influence the future of intellectual and academic discourse,” she added. The full text of the Sereno dissent can be found here: http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC_sereno.htm

8. On Monday, October 18, 2010, various Philippine national media carried the news that the Philippine Supreme Court had deliberated and decided to hold the UP Law Faculty in contempt for its Statement. Seehttp://newsinfo.inquirer.net/inquirerheadlines/nation/view/20101020-298693/UP-Law-faces-sanction-over-SC-plagiarism-case andhttp://www.gmanews.tv/story/203873/up-law-risks-sanctions-for-statements-on-plagiarism-mess , among others.

9. Copies of the Court’s seven-page Order were finally seen several hours ago. As will be seen from the full text of the Order and the dissenting opinions (I will repost this file in a separate note), the Court majority made the unprecedented move of holding the UP Law Faculty in contempt, until they can show why they do not merit contempt. Three justices of the Court noted this prejudgment in their dissents:

CARPIO-MORALES, j., dissenting:

“The Resolution demonstrates nothing but an abrasive flexing of the judicial muscle that could hardly be characterized as judicious. This knee-jerk response from the Court stares back at its own face, since this judicial act is one that is “totally unnecessary, uncalled for and a rash act of misplaced vigilance.

xxx

The adverse declarations describing the written work of the UP law faculty operate to their prejudice since that would render any subsequent proceeding illusory, because the Court, which would ultimately decide the administrative case, has already made up its mind before hearing the parties.

Worse, the Resolution is not what it purports to be. Ostensibly, the Resolution is a show cause order that initiates what would merely become a newly docketed regular administrative matter. There is more than meets the eye, however. When stripped of its apparent complexion, the Resolution shows its true colors and presents itself as a pronouncement of guilt of indirect contempt, without proper recourse left to the parties.

xxx

Unless the Court intends to busy itself into consistently engaging in a judicial witch hunt against its detractors, it is more in keeping with the Court’s dignity not to dignify each and every write-up that is taken to vilify it, and console itself with the number of testimonials, written or living that vilify the judiciary.

Although as a human being, a person naturally gets pissed off by hurtful words, it would not hurt the Court as an institution and the law as a profession if it passes off the statement of the UP law faculty at this time.”

SERENO, j., dissenting.

“Ordering the 37 respondent members of the UP law faculty to “show cause” in this indirect contempt case is like ordering the little boy who exclaimed that “the emperor has no clothes” to explain why he should be crucified for his public observation. It is true that the little boy may have aggravated the situation by adding that the unclothed emperor did not present a flattering figure in his natural state, but the analogy remains true — that the subject UP law faculty members have been prematurely adjudged guilty and asked to explain why such prejudgment should be reversed simply for expressing what they believed was the truth.

xxx

What is so grievous about this whole contempt proceeding is that it comes in the wake of the gross injury that the Court has inflicted upon the virtue of honesty in learned discourses by labeling plagiarism as not plagiarism in the related case involving one of its members.

With all due respect to my colleagues, it is not the place of the Court to seek revenge against those who, in their wish to see reform in the judiciary, have the courage to say what is wrong with it. The Court finds its legitimacy in demonstrating its moral vein case after case, not in flaunting its judicial brawn. There is nothing to be gained for the administration of justice in not letting his one instance pass just because feelings have been hurt and the urge to retaliate must be satisfied.

If the 37 members of the UP law faculty are wrong, there will be recompense in their loss of esteem among the academic community and the legal profession. But if they are right, then the Court will have made martyrs out of those who — in their temporary passion — may have acted recklessly, but truthfully and sincerely. Indeed, should they be proven right they may even rise in the esteem in the eyes of the international academic and legal circles, for being the object of prosecution by one’s Supreme Court for bold but intelligent reformist language can be deemed a badge of honor similar to that bequeathed by history to the great thinkers who were persecuted by society’s forces.”

In view of the blatant institutional persecution now being committed against the UP Law Faculty — who discharged their duties in good faith as public servants, law professors, and officers of the Court in asking the Court to take responsibility for the apparent plagiarism and misrepresentation that tainted the Vinuya decision — I urgently plead for the help of fellow legal scholars and academics to write — either public statements, or letters to their embassies in Manila regarding this matter. As the dissenting Justices have disclosed, the Supreme Court majority has already prejudged this matter, and that same majority will prevail in imposing sanctions (from disbarment, to suspension of bar licenses, fines, imprisonment) on the UP Law Faculty. We cannot realistically expect a fair hearing anymore when the majority acts as both the supposed “injured” party and our judge at the same time. We acted in good faith, conscious of our duties as lawyers and legal scholars, to ensure the preservation of integrity in our jurisprudence —- we could not anticipate then, nor would we have accepted now as law professors and members of the Philippine legal academia, the Supreme Court majority’s defense that Microsoft Word was responsible for failing to detect the plagiarism and misrepresentation. The objective fact of plagiarism and misrepresentation are glaring from the text of Vinuya, as confirmed by the international law professors whose works were used, and as confirmed by the extensive dissent of Justice Sereno. Most importantly, we acted from our sense of justice and duty as lawyers to promote the rule of law, on behalf of those comfort women survivors whose petition was denied through a decision-making process that apparently relied on plagiarized and misrepresented works of international law authors.

Our only hope now is for reason from the rest of the world to prevail against this institutional persecution — the glaring and ongoing threats to our constitutional and international rights to freedom of expression and academic freedom. While it appears that only 37 of the 81 faculty members signed the UP Law Faculty Statement, the Court majority overlooked all the names sent in the original list by Dean Marvic Leonen. It has been our practice to signify support for statements electronically through email or discussions in our faculty egroup, and for many of us abroad it was not necessary to physically sign so long as we expressed our support for the statement to the faculty egroup. We expect, therefore, that it will only be a matter of time before the contempt order is extended to all of us. We will not shirk from our part in having supported the UP Law Faculty Statement.

We fervently hope for your help in this fight against institutional persecution. We have no recourse left.

Very truly yours,

Professor Diane A. Desierto, University of the Philippines College of Law

Law Reform Specialist, Institute of International Legal Studies, University of the Philippines

JSD candidate (2014), LLM (2009), Yale Law School

* IMPORTANT: This NOTE in NO WAY represents the views of the International Court of Justice or any of its staff. This Note was written in my private capacity, SOLELY as a member of the UP Law Faculty.