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.”



attached please find a copy of the motion for reconsideration which we filed this afternoon in the Supreme Court involving the plagiarism case of Justice Mariano Del Castillo. The blotted portions refer to confidential mattes taken up during the ethics committee hearing.

ATENEO, alma mater of Justice Del Castillo and his legal researcher, rebukes SC’s definition of plagiarism

Treatment of Plagiarism Cases in the Loyola Schools in Light of the Recent Supreme Court Decision

date posted: 2010-11-05 08:33:12

4 November 2010

MEMO TO: The Loyola Schools Community

FROM: John Paul C. Vergara

Vice President for the Loyola Schools

SUBJECT: Treatment of Plagiarism Cases in the Loyola Schools

in Light of the Recent Supreme Court Decision

On October 12, 2010, the Supreme Court issued its decision on A.M.

No.10-7-17-SC (In the Matter of the Charges of Plagiarism, etc.

against Associate Justice Mariano C. Castillo), where it was indicated that “plagiarism presupposes intent, and a deliberate, conscious effort to steal another’s work and pass it off as one’s own”. Since this statement seems to contradict what has long been our understanding of the essential nature of plagiarism, the Loyola Schools of the Ateneo de Manila University is compelled to issue this memorandum restating its policy and practices that relate to acts of plagiarism:

1. The Loyola Schools takes very seriously all cases of academic dishonesty including acts of plagiarism.

2. As articulated in the Loyola Schools Code of Academic Integrity (A Student Guide), the objective act of “plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to one’s self what is not one’s work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occured. Students who plead ignorance or appeal to lack of malice are not excused.”

3. Aspects pertaining to intent are considered during the determination of the appropriate sanctions. The specific context of the violation is studied to ensure that the sanctions are proportional to the gravity of the offense, which incorporates awareness, willfulness, and acknowledgement of wrongdoing, among others.

4. The foregoing Supreme Court decision notwithstanding, the Loyola Schools’ understanding and definition of what constitutes plagiarism has not changed. Cases of plagiarism will continue to be handled in the same manner, and with the same regard for due process, as stipulated in the Student Handbook.

The Loyola Schools reiterates its position that academic honesty and the acknowledgement of sources is not simply a matter of the correct use of quotation marks, placement of footnotes, or acquisition of permissions; it is a question of personal discipline and moral character. The school’s resolve on the stringent requirements in the proper acknowledgement of sources goes to the heart of its mission in forming persons for others-persons who value truth, respect, gratitude, integrity and justice.

VINUYA, the Comfort Women Petition: A CLASS PROJECT

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#

Plagiarism and Kidnapping

The Supreme Court last week promulgated a decision that Justice Maria Lourdes Sereno described in her dissent as one that would create “unimaginable problems for the academia” on how they would hence discipline students and researchers for plagiarism. Justice Sereno was particularly concerned with the majority’s decisions that plagiarism requires intent, which according to her, “stand against overwhelming convention on what plagiarism is.”
The lady Justice’s dissent was a directed at a per curiam (meaning the writer does not wish to be identified) majority opinion of the Supreme Court which dismissed our complaint against Justice Mariano Del Castillo for plagiarizing at least three works of foreign authors published by two leading international law journals and a book published by Cambridge University Press.

The majority dismissed the complaint after it accepted the explanation of Justice Del Castillo’s researcher that the failure to attribute was not intentional. In the words of the court: x x x “Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision.. x x x

She electronically “cut” relevant materials from books and journals in the Westlaw Web site and “pasted” these to a “main manuscript” in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. x x x as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions. x x x Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.”

In the absence of an intent to plagiarize, the court could not rule that there was in fact plagiarism: “plagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.”

Justice Sereno was, however, not convinced: “What is black can be called ‘white’ but it cannot turn white by the mere calling. The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision and the determination of the liability that results from a finding of plagiarism. Specifically, it made ‘malicious intent’, which heretofore had not been relevant to a finding of plagiarism, an essential element.”

The dissenting opinion then adopted the matrix that was included in our supplemental motion as evidence of plagiarism in the text of the decision itself. She then painstakingly enumerated what were instances of plagiarism.

Anent the defense that the “limited operational properties” of MS Word was somehow contributory to the omission of the court researcher, the lady justice had this to say:

“First, for a decision to make full attribution for lifted passages, one starts with block quote formatting or the ‘keying-in’ of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer commands are not easily accidentally deleted, but should be deliberately inputted where there is an intention to quote and attribute.

Second, a beginning acknowledgment or similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be deliberately placed.

Third, the above explanation regarding the lines quoted in A.1 in the majority Decision may touch upon what happened in incident A.1, but it does not relate to what happened in incidents B.1 to C.6 of the Tables of Comparison, which are wholesale lifting of excerpts from both the body and the footnotes of the referenced works, without any attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of Tams’s work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the discussions and analyses in their discursive footnotes were used wholesale.

Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of 119 does not plausibly account for the extensive amount of text used with little to no modifications from the works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-attribution cannot be remedied by the reinstatement of 2 footnotes.

Fifth, the mention of Tams in ‘See Tams, Enforcing Obligations Erga omnes in International Law (2005)’ in footnote 69 of the Vinuya decision was not a mere insufficiency in ‘clarity of writing,’ but a case of plagiarism under the rule prohibiting the use of misleading citations.

Sixth, the analogy that was chosen —that of a carpenter who discards materials that do not fit into his carpentry work—is completely inappropriate. In the scheme of ‘cutting and pasting’ that the researcher did during her work, it is standard practice for the original sources of the downloaded and copied materials to be regarded as integral parts of the excerpts, not extraneous or ill-fitting. A computer-generated document can accommodate as many quotation marks, explanatory notes, citations and attributions as the writer desires and in multiple places. The limits of most desktop computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes and megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an electronic document is practically negligible. It is not as if the researcher lacked any electronic space; there was simply no attribution.

Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and in paragraph 4 of the decretal portion of the majority Decision, no software exists that will automatically type in quotation marks at the beginning and end of a passage that was lifted verbatim; these attribution marks must be made with deliberate effort by the human researcher. Nor can a software program generate the necessary citations without input from the human researcher. Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted. The best guarantee for works of high intellectual integrity is consistent, ethical practice in the writing habits of court researchers and judges. All lawyers are supposed to be knowledgeable on the standard of ethical practice, if they took their legal research courses in law school and their undergraduate research courses seriously. This knowledge can be easily picked up and

updated by browsing many free online sources on the subject of writing standards. In addition, available on the market are software programs that can detect some, but not all, similarities in the phraseology of a work-in-progress with those in selected published materials; however, these programs cannot supply the citations on their own. Technology can help diminish instances of plagiarism by allowing supervisors of researchers to make partial audits of their work, but it is still the human writer who must decide to give the proper attribution and act on this decision.”

I have not received a copy of either the majority nor the dissenting opinion. Chances are we will file a motion for reconsideration, precluding me hence from commenting on either opinion. This much I will say: plagiarism comes from the same root word as kidnapping. It is not just morally wrong, it is in fact criminal. It cannot and should not be treated lightly, nor casually. As an educator, I can only concur in the fears expressed by Justice Sereno that the decision will have disastrous effects for the academe. Unless challenged, the majority opinion and the “MS Word” defense may hence be invoked by dishonest students in justifying plagiarism.

In any event, while the Supreme Court’s decision is final on purely legal issues, its decisions on a charge of plagiarism, unprecedented in our jurisdiction, is subject to challenge particularly by those who have the most interest in preventing it: the academe. Surely, the decision cannot remove the perception by at least three respected international scholars that their works were in fact plagiarized and twisted. And yes, lest we forget, Vinuya is not just about plagiarism. Its primarily about at least 60 women who were repeatedly raped during World War II and who, according to the majority opinion of the Court, have no further remedies under our laws.