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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Motion For Reconsideration in IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO (A.M. NO. 10-7-17- SC)


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.

http://www.mediafire.com/?x4952qljaf4mz65

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.

Dissenting Opinion of Justice Sereno on the issue of plagiarism in the Philippine Supreme Court


A.M. No. 10-7-17-SC – IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO

Promulgated:

October 15, 2010

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

DISSENTING OPINION

SERENO, J.:

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[1] 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 majority Decision will thus stand against the overwhelming conventions on what constitutes plagiarism. In doing so, the Decision has created unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers on the justification of the majority Decision.
It has also undermined the protection of copyrighted work by making available to plagiarists “lack of malicious intent” as a defense to a charge of violation of copy or economic rights of the copyright owner committed through lack of attribution. Under Section 184 of R.A. 8293 (“An Act Describing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Powers and Functions, and for Other Purposes”), or the Intellectual Property Code of the Philippines, there is no infringement of copyright in the use of another’s work in:
(b) the making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided that the source and the name of the author, if appearing on the work, are mentioned. (Emphasis supplied)
Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to editorial errors and lack of malicious intent to appropriate ─ and that therefore there was no plagiarism ─ lack of intent to infringe copyright in the case of lack of attribution may now also become a defense, rendering the above legal provision meaningless.[2]

TABLES OF COMPARISON

The tables of comparison below were first drawn based on the tables made by petitioners in their Supplemental Motion for Reconsideration. This was then compared with Annex “A” of Justice Mariano del Castillo’s letter, which is his tabular explanation for some of the copied excerpts.[3] The alleged plagiarism of the cited excerpts were then independently verified and re-presented below, with the necessary revisions accurately reflecting the alleged plagiarized works and the pertinent portions of the decision. A few excerpts in the table of petitioners are not included, as they merely refer to in-text citations.

TABLE A: Comparison of Christian J. Tams’s book, entitled Enforcing Erga Omnes Obligations in International Law (2005), hereinafter called “Tams’s work” and the Supreme Court’s 28 April 2010 Decision in Vinuya, et. al. v. Executive Secretary.

CHRISTIAN J. TAMS, ENFORCING ERGA OMNES OBLIGATIONS IN INTERNATIONAL LAW (2005).
Vinuya, et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010.

1.

xxx The Latin phrase ‘erga omnes’ thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law. xxx

As often, the reality is neither so clear nor so bright. One problem is readily admitted by commentators: whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realised in practice. xxx Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment: ‘Viewed realistically, the world of obligations erga omnes is still the world of the ‘‘ought’’ rather than of the ‘‘is’’.

(pp. 3-4 of the Christian Tams’s book)

*The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order. However, as is so often the case, the reality is neither so clear nor so bright. Whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realized in practice.[FN69] (p. 30, Body of the 28 April 2010 Decision)

[FN69] Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment: ‘Viewed realistically, the world of obligations erga omnes is still the world of the “ought” rather than of the “is”’ THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 125 (Simma, ed. 1995). See Tams, Enforcing Obligations Erga omnes in International Law (2005).

*The decision mentioned Christian Tams’s book in footnote 69.

TABLE B: Comparison of Evan J. Criddle & Evan Fox-Decent’s article in the Yale Journal of International Law, entitled A Fiduciary Theory of Jus Cogens (2009), hereinafter called “Criddle’s & Fox-Decent’s work” and the Supreme Court’s 28 April 2010 Decision in Vinuya, et al. v. Executive Secretary.

Evan J. Criddle & Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 YALE J. INT’L L. 331 (2009).
Vinuya, et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010

1.

In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. xxx Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.[FN2]

[FN2] See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].

(pp. 331-332 of the Yale Law Journal of Int’l Law)

In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.[FN70] (pp. 30-31, Body of the 28 April 2010 Decision)

[FN70] See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].

2.

Peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article, Forbidden Treaties in International Law.[FN10]

[FN10] For example, in the 1934 Oscar Chinn Case, Judge Schücking’s influential dissent stated that neither an interna-tional court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting).

(p. 334 of the Yale Law Journal of Int’l Law)

xxx but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article, Forbidden Treaties in International Law. [FN72] (p. 31, Body of the 28 April 2010 Decision)

[FN72] Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements. At first, Verdross’s vision of international jus cogens encountered skepticism within the legal academy. These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War. (See Lauri Hannikainen, Peremptory Norms (Jus cogens) in International Law: Historical Development, Criteria, Present Status 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that “about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law”).

3.

Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent.[FN6]

[FN6] See Hugonis Grotii, De Jure Belli et Pacis [On the Law of War and Peace] (William Whewell ed. & trans., John W. Parker, London 2009) (1625); Emer de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle [The Law of Nations or Principles of Natural Law] §§ 9, 27 (1758) (distinguishing “le Droit des Gens Naturel, ou Nécessaire” from “le Droit Volontaire”); Christian Wolff, Jus Gentium Methodo Scientifica Pertractorum [A Scientific Method for Understanding the Law of Nations] ¶ 5 (James Brown Scott ed., Joseph H. Drake trans., Clarendon Press 1934) (1764).

(p. 334 of the Yale Law Journal of Int’l Law)

[FN71] Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent.

(p. 31, Footnote 71 of the 28 April 2010 Decision)

4.

Early twentieth-century publicists such as Lassa Oppenheim and William Hall asserted confidently that states could not abrogate certain “universally recognized principles” by mutual agreement.[FN9] Outside the academy, judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions.[FN10] xxx

[FN9] William Hall, A Treatise on International Law 382-83 (8th ed. 1924) (asserting that “fundamental principles of international law” may “invalidate [], or at least render voidable,” conflicting international agreements); 1 Lassa Oppen-heim, International Law 528 (1905).

[FN10] For example, in the 1934 Oscar Chinn Case, Judge Schücking’s influential dissent stated that neither an interna-tional court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting).

(pp. 334-5 of the Yale Law Journal of Int’l Law)

[FN71] xxx Early twentieth-century publicists such as Lassa Oppenheim and William Hall asserted that states could not abrogate certain “universally recognized principles” by mutual agreement. xxx Judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions. xxx

(p. 31, Footnote 71 of the 28 April 2010 Decision)

5.

[FN9] William Hall, A Treatise on International Law 382-83 (8th ed. 1924) (asserting that “fundamental principles of international law” may “invalidate [], or at least render voidable,” conflicting international agreements) xxx

(Footnote 9 of the Yale Law Journal of Int’l Law)

[FN71] xxx (William Hall, A Treatise on International Law 382-83 (8th ed. 1924) (asserting that “fundamental principles of international law” may “invalidate [], or at least render voidable,” conflicting international agreements) xxx

(p. 31, Footnote 71 of the 28 April 2010 Decision)

6.

[FN10] For example, in the 1934 Oscar Chinn Case, Judge Schücking’s influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting).

(Footnote 9 of the Yale Law Journal of Int’l Law)

[FN71] xxx (For example, in the 1934 Oscar Chinn Case, Judge Schücking’s influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting).

(p. 31, Footnote 71 of the 28 April 2010 Decision)

7.
Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements.[FN12]

[FN12] [Von Verdross, supra note 5.]

(pp. 335 of the Yale Law Journal of Int’l Law)
[FN72] Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements. xxx

(p. 31, Footnote 72 of the 28 April 2010 Decision)

8.

At first, Verdross’s vision of international jus cogens encountered skepticism within the legal academy. xxx These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War.

(pp. 335-6 of the Yale Law Journal of Int’l Law)

[FN72] xxx At first, Verdross’s vision of international jus cogens encountered skepticism within the legal academy. These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War. xxx

(p. 31, Footnote 72 of the 28 April 2010 Decision)

9.

[FN18] See Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that “about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law”).

(Footnote 18 of the Yale Law Journal of Int’l Law)

[FN72] xxx (See Lauri Hannikainen, Peremptory Norms (Jus cogens) in International Law: Historical Development, Criteria, Present Status 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that “about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law”).

(p. 31, Footnote 72 of the 28 April 2010 Decision)

10.

xxx the 1950s and 1960s with the United Nations International Law Commission’s (ILC) preparation of the Vienna Convention on the Law of Treaties (VCLT).[FN20]

[FN20] VCLT, supra note 2.

(p. 336 of the Yale Law Journal of Int’l Law)

xxx the 1950s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT).[FN73]

(p. 31, Body of the 28 April 2010 Decision)

[FN73] In March 1953, the ILC’s Special Rapporteur, Sir Hersch Lauterpacht, submitted for the ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.” Hersch Lauterpacht, Law of Treaties: Report by Special Rapporteur, [1953] 2 Y.B. Int’l L. Comm’n 90, 93, U.N. Doc. A/CN.4/63.

11.

In March 1953, Lauterpacht submitted for the ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.”[FN21]

[FN21] Hersch Lauterpacht, Law of Treaties: Report by Special Rapporteur, [1953] 2 Y.B. Int’l L. Comm’n 90, 93, U.N. Doc. A/CN.4/63.

(p. 336 of the Yale Law Journal of Int’l Law)

[FN73] In March 1953, the ILC’s Special Rapporteur, Sir Hersch Lauterpacht, submitted for the ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.” Hersch Lauterpacht, Law of Treaties: Report by Special Rapporteur, [1953] 2 Y.B. Int’l L. Comm’n 90, 93, U.N. Doc. A/CN.4/63.

(p. 31, Footnote 73 of the 28 April 2010 Decision)

12.

Lauterpacht’s colleagues on the ILC generally accepted his assessment that certain international norms had attained the status of jus cogens. [FN23] Yet despite general agreement over the existence of international jus cogens, the ILC was unable to reach a consensus regarding either the theoretical basis for peremptory norms’ legal authority or the proper criteria for identifying peremptory norms.

[FN23] See Hannikainen, supra note 18, at 160-61 (noting that none of the twenty five members of the ILC in 1963 denied the existence of jus cogens or contested the inclusion of an article on jus cogens in the VCLT); see, e.g., Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning aggressive war as an international crime” was evidence that international law contains “minimum requirement[s] for safeguarding the existence of the international community”).

(p. 336 of the Yale Law Journal of Int’l Law)

Though there was a consensus that certain international norms had attained the status of jus cogens, [FN74] the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.

(p. 31, Body of the 28 April 2010 Decision)

[FN74] See Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning aggressive war as an international crime” was evidence that international law contains “minimum requirement[s] for safeguarding the existence of the international community”).

13.

[FN23] xxx see, e.g., Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning aggressive war as an international crime” was evidence that international law contains “minimum requirement[s] for safeguarding the existence of the international community”).

(Footnote 23 of the Yale Law Journal of Int’l Law)

[FN74] See Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning aggressive war as an international crime” was evidence that international law contains “minimum requirement[s] for safeguarding the existence of the international community”).

(p. 31, Footnote 74 of the 28 April 2010 Decision)

14.

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”[FN27] xxx In commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to . . . leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”[FN29] xxx

[FN27] Second Report on the Law of Treaties, [1963] 2 Y.B. Int’l L. Comm’n 1, 52, U.N. Doc. A/CN.4/156.

[FN29] Second Report on the Law of Treaties, supra note 27, at 53.

(p. 337-8 of the Yale Law Journal of Int’l Law)

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”[FN75] In a commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”[FN76] xxx

(p. 32, Body of the 28 April 2010 Decision)

[FN75] Second Report on the Law of Treaties, [1963] 2 Y.B. Int’l L. Comm’n 1, 52, U.N. Doc. A/CN.4/156.

[76] Id. at 53.

15.

In some municipal cases, courts have declined to recognize international norms as peremptory while expressing doubt about the proper criteria for identifying jus cogens.[FN72]

[FN72] See, e.g., Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149 (7th Cir. 2001) (expressing concern that jus cogens should be invoked “[o]nly as a last resort”).

(p. 346 of the Yale Law Journal of Int’l Law)

[FN77] xxx In some municipal cases, courts have declined to recognize international norms as peremptory while expressing doubt about the proper criteria for identifying jus cogens. (See, e.g., Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149 (7th Cir. 2001) (expressing concern that jus cogens should be invoked “[o]nly as a last resort”)). xxx

(p. 32, Footnote 77 of the 28 April 2010 Decision)

16.

In other cases, national courts have accepted international norms as peremptory, but have hesitated to enforce these norms for fear that they might thereby compromise state sovereignty.[FN73] xxx In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained from invoking the jus cogens concept in several previous cases where peremptory norms manifestly clashed with other principles of general international law.[FN74] Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity.

[FN73] See, e.g., Bouzari v. Iran, [2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not entail a right to a civil remedy enforceable in a foreign court).

[FN74] See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 2 (dissenting opinion of Judge Dugard) xxx.

(pp. 346-7 of the Yale Law Journal of Int’l Law)

[FN77] xxx In other cases, national courts have accepted international norms as peremptory, but have hesitated to enforce these norms for fear that they might thereby compromise state sovereignty. (See, e.g., Bouzari v. Iran, [2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not entail a right to a civil remedy enforceable in a foreign court)).

In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained from invoking the jus cogens concept in several previous cases where peremptory norms manifestly clashed with other principles of general international law. (See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda) (Judgment of February 3, 2006), at 2 (Dissenting Opinion of Judge Dugard))

Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity. Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, 61).

(p. 32, Footnote 77 of the 28 April 2010 Decision)

TABLE C: Comparison of Mark Ellis’s article in the Case Western Reserve Journal of International Law, entitled Breaking the Silence: Rape as an International Crime (2006-7), hereafter called “Ellis’s work” and the Supreme Court’s 28 April 2010 Decision in Vinuya, et al. v. Executive Secretary.

Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 CASE W. RES. J. INT’L L. 225 (2006-2007).
Vinuya, et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010.

1.

The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war.[FN7] The 1863 Lieber Instructions, which codified customary inter-national law of land warfare, classified rape as a crime of “troop discipline.”[FN8] It specified rape as a capital crime punishable by the death penalty.[FN9] The 1907 Hague Convention protected women by requiring the protection of their “honour.”[FN10] But modern-day sensitivity to the crime of rape did not emerge until after World War II.

[FN7] For example, the Treaty of Amity and Commerce Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT’L AGREEMENTS OF THE U.S. 78, 85, available at xxx.

[FN8] David Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L L. 219, 224.

[FN9] Id. at 236.

[FN10] “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.” Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907, available at http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm #art46.

(p. 227 of the Case Western Law Reserve Journal of Int’l Law)

[FN65] The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge until after World War II. xxx (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT’L AGREEMENTS OF THE U.S. 78, 85[)]. The 1863 Lieber Instructions classified rape as a crime of “troop discipline.” (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L. L. 219, 224). It specified rape as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the protection of their “honour.” (“Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.” Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907[)]. xxx.

(p. 27, Footnote 65 of the 28 April 2010 Decision)

2.

After World War II, when the Allies established the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name.[FN11]

[FN11] See generally, Agreement for the Prosecution and Punishment of the Major War Criminals of the Euro-pean Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.

(p. 227 of the Case Western Law Reserve Journal of Int’l Law)

[FN65] xxx In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. xxx See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. xxx.

(p. 27, Footnote 65 of the 28 April 2010 Decision)

3.

The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted.[FN13] xxx.

It was different for the Charter of the International Military Tribunal for the Far East.[FN15] xxx The Tribunal prosecuted rape crimes, even though its Statute did not explicitly criminalize rape.[FN17] The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority.[FN18]

[FN13] Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena, 7 ILSA J. INT’L COMP L. 667, at 676.

[FN15] See Charter of the International Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. 1589.

[FN17] See McDonald, supra note 13, at 676.

[FN18] THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (B.V.A. Roling and C.F. Ruter eds., 1977).

(p. 228 of the Case Western Law Reserve Journal of Int’l Law)

[FN65] xxx The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. Int’l. Comp. L. 667, 676.) However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority. (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (1977). xxx

(p. 27, Footnote 65 of the 28 April 2010 Decision)

4.

The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity.[FN22] Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts.

[FN22] Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946), available at http://www1.umn.edu/humanrts/instree/ccno10.htm (last visited Nov. 20, 2003). This law set forth a uniform legal basis in Germany for the prosecution of war criminals and similar offenders, other than those dealt with under the International Military Tribunal. See id. at 50.

(pp. 228-9 of the Case Western Law Reserve Journal of Int’l Law)

[FN65] xxx The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946)) xxx

(p. 27, Footnote 65 of the 28 April 2010 Decision)

5.

The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women.[FN23] However, the most important development in breaking the silence of rape as an international crime has come through the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR). Both of these Tribunals have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity. xxx.

[FN23] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].

(p. 229 of the Case Western Law Reserve Journal of Int’l Law)

[FN65] xxx The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention]. Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity. xxx.

(p. 27, Footnote 65 of the 28 April 2010 Decision)

Forms of Plagiarism

There are many ways by which plagiarism can be committed.[4] For the purpose of this analysis, we used the standard reference book prescribed for Harvard University students, “Writing with Sources” by Gordon Harvey.
Harvey identifies four forms of plagiarism[5]: (a) uncited data or information;[6] (b) an uncited idea, whether a specific claim or general concept;[7] (c) an unquoted but verbatim phrase or passage;[8] and (d) an uncited structure or organizing strategy.[9] He then explains how each form or mode of plagiarism is committed. Plagiarism is committed in mode (a) by “plagiarizing information that is not common knowledge.”[10] Mode (b) is committed when “distinctive ideas are plagiarized,” “even though you present them in a different order and in different words, because they are uncited.”[11]
Even if there has been a prior citation, succeeding appropriations of an idea to make it appear as your own is plagiarism, because the “[previous] citation in [an earlier] passage is a deception.” Mode (c) is committed when “you … borrowed several distinctive phrases verbatim, without quotation marks…” Mode (d) is committed when, though the words and details are original, “(y)ou have, however, taken the structural framework or outline directly from the source passage … even though, again, your language differs from your source and your invented examples are original.”[12]
These forms of plagiarism can exist simultaneously in one and the same passage. There may be a complete failure to use quotation marks in one part of the sentence or paragraph while combining that part with phrases employing an uncited structure or organizing strategy. There may be patchwork plagiarizing committed by collating different works or excerpts from the same work without proper attribution.[13]
These acts of plagiarism can also be committed in footnotes in the same way and at the same degree of unacceptability as plagiarized passages in the body. This is especially frowned upon in footnotes that are discursive or “content” footnotes or endnotes. Harvey explains that a discursive footnote or endnote is “a note that includes comments, not just publication information . . . when you want to tell your reader something extra to the strict development of your argument, or incorporate extra information about sources.”[14]

Violations of Rules against
Plagiarism in the Vinuya Decision

Below are violations of the existing rules against plagiarism that can be found in the Vinuya decision. The alphanumeric tags correspond to the table letter and row numbers in the tables provided above.
A.1 Failure to use quotation marks to indicate that the entire paragraph in the body of the decision on page 30 was not the ponente’s original paragraph, but was lifted verbatim from Tams’s work. The attribution to Tams is wholly insufficient because without the quotation marks, there is nothing to alert the reader that the paragraph was lifted verbatim from Tams. The footnote leaves the reader with the impression that the said paragraph is the author’s own analysis of erga omnes.
The “See Tams, Enforcing Obligations Erga omnes in International Law (2005)” line in footnote 69 of the Vinuya decision does not clearly indicate that the statement on Simma’s observation was lifted directly from Tams’s work; it only directs the reader to Tams’s work should the reader wish to read further discussions on the matter.
B.1 Failure to use quotation marks to indicate that the two sentences were not the ponente’s, but were lifted verbatim from two non-adjoining sentences found on pages 331 and 332 of the Yale Law Journal of International Law article of Criddle & Fox-Decent and with absolutely no attribution to the latter.
B.2 Failure to use quotation marks to indicate that the sentence fragment on peremptory norms was not the ponente’s original writing, but was lifted verbatim from page 334 of the Yale Law Journal of International Law article of Criddle & Fox-Decent with absolutely no attribution to the authors.
B.3 Failure to use quotation marks to indicate that the first sentence in discursive footnote number 71 was not the ponente’s idea, but was lifted verbatim from Criddle & Fox-Decent’s work at page 334.
B.4 Failure to use quotation marks to indicate that the third sentence in discursive footnote number 71 was not the ponente’s idea, but was lifted from Criddle & Fox-Decent’s work at 334-335.
B.5 Failure to indicate that one footnote source in discursive footnote 71 was lifted verbatim from discursive footnote 9 of Tams; thus, even the idea being propounded in this discursive part of footnote 71 was presented as the ponente’s, instead of Criddle’s & Fox-Decent’s.
B.6 Failure to indicate that the last discursive sentence in footnote 71 and the citations thereof were not the ponente’s, but were lifted verbatim from footnote 9 of Criddle & Fox-Decent’s work.
B.7 Failure to indicate that the first discursive sentence of footnote 72 was not the ponente’s, but was lifted verbatim from page 335 of Criddle & Fox-Decent’s work.
B.8 Failure to indicate that the second discursive sentence of footnote 72 was not the ponente’s, but was lifted verbatim from pages 335-336 of Criddle and Fox-Decent’s work.
B.9 Failure to indicate that the citation and the discursive passage thereon in the last sentence of footnote 72 was not the ponente’s, but was lifted verbatim from discursive footnote 18 of Criddle & Fox-Decent’s work.
B.10 Failure to use quotation marks to indicate that a phrase in the body of the decision on page 31 was not the ponente’s, but was lifted verbatim from page 336 of Criddle & Fox-Decent’s work.
B.11 Failure to indicate that the entirety of discursive footnote 73 was not the ponente’s, but was lifted verbatim from page 336 of Criddle & Fox-Decent’s work.
B.12 Failure to indicate that the idea of lack of “consensus on whether certain international norms had attained the status of jus cogens” was a paraphrase of a sentence combined with a verbatim lifting of a phrase that appears on page 336 of Criddle & Fox-Decent’s work and was not the ponente’s own conclusion. This is an example of patchwork plagiarism.
B.13 Failure to indicate that the entirety of discursive footnote 74 on page 31 of the Decision was not the ponente’s comment on the source cited, but was lifted verbatim from footnote 23 of Criddle & Fox-Decent’s work.
B.14 Failure to indicate through quotation marks and with the proper attribution to Criddle that the first two sentences of page 32 were not the ponente’s, but were lifted verbatim from two non-adjoining sentences on pages 337-338 of Criddle & Fox-Decent’s work.
B.15 Failure to indicate through quotation marks and the right citation that the discursive sentence in the second paragraph of footnote 77, and the citation therein, were not the ponente’s, but were lifted verbatim from page 346 of the body of Criddle & Fox-Decent’s work in the instance of the discursive sentence, and from footnote 72 of Criddle & Fox-Decent’s work in the instance of the case cited and the description thereof.
B.16 Failure to indicate that the choice of citation and the discursive thereon statement in the second sentence of the second paragraph of discursive footnote 77 was not the ponente’s, but was lifted verbatim from footnote 72 of Criddle & Fox-Decent’s work.
B.17 Failure to indicate through quotation marks and the right citations that the entirety of the discursive third to fifth paragraphs of footnote 77 were not the product of the ponente’s own analysis and choice of sources, but were lifted verbatim from footnotes 73 and 77 on pages 346-347 of Criddle & Fox-Decent’s work.
C.1 to C.6 Failure to use quotation marks and the right citations to indicate that half of the long discursive footnote 65, including the sources cited therein, was actually comprised of the rearrangement, and in some parts, rephrasing of 18 sentences found on pages 227-228 of Mr. Ellis’s work in Case Western Law Reserve Journal of International Law.
This painstaking part-by-part analysis of the Vinuya decision is prompted by the fact that so many, including international academicians, await the Court’s action on this plagiarism charge ─ whether it will in all candor acknowledge that there is a set of conventions by which all intellectual work is to be judged and thus fulfill its role as an honest court; or blind itself to the unhappy work of its member.
The text of the Decision itself reveals the evidence of plagiarism. The tearful apology of the legal researcher to the family of the ponente and her acknowledgment of the gravity of the act of omitting attributions is an admission that something wrong was committed. Her admission that the correct attributions went missing in the process of her work is an admission of plagiarism. The evidence in the text of the Vinuya Decision and the acknowledgment by the legal researcher are sufficient for the determination of plagiarism.

The Place of the Plagiarized
Portions in the Vinuya Decision

The suspect portions of the majority decision start from the discursive footnotes of the first full paragraph of page 27. In that paragraph, the idea sought to be developed was that while rape and sexual slavery may be morally reprehensible and impermissible by international legal norms, petitioners have failed to make the logical leap to conclude that the Philippines is thus under international legal duty to prosecute Japan for the said crime. The plagiarized work found in discursive footnote 65 largely consists of the exposition by Mr. Ellis of the development of the concept of rape as an international crime. The impression obtained by any reader is that the ponente has much to say about how this crime evolved in international law, and that he is an expert on this matter.
There are two intervening paragraphs before the next suspect portion of the decision. The latter starts from the second paragraph on page 30 and continues all the way up to the first paragraph of page 32. The discussion on the erga omnes obligation of states almost cannot exist, or at the very least cannot be sustained, without the plagiarized works of Messrs. Tams, Criddle and Decent-Fox. There is basis to say that the plagiarism of this portion is significant.

How the Majority Decision
Treated the Specific Allegations
of Plagiarism

The majority Decision narrates and explains:
“The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her “grievous mistake” and grief for having “caused an enormous amount of suffering for Justice Del Castillo and his family.”
On the other hand, addressing the Committee in reaction to the researcher’s explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from another’s work. Counsel invoked the Court’s ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards on plagiarism in the academe should apply with more force to the judiciary.
x x x x x x x x x
“… although Tams himself may have believed that the footnoting in his case was not “an appropriate form of referencing,” he and petitioners cannot deny that the decision did attribute the source or sources of such passages. Justice Del Castillo did not pass off Tam’s work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tam himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tam’s article as another source of those ideas.
The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement “See Tams, Enforcing Obligations Erga Omnes in International Law (2005)” in the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged passages as his own.
That it would have been better had Justice Del Castillo used the introductory phrase “cited in” rather than the phrase “See” would make a case of mere inadvertent slip in attribution rather than a case of “manifest intellectual theft and outright plagiarism.” If the Justice’s citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form.”
x x x
“Footnote 65 appears down the bottom of the page. Since the lengthily passages in that footnote came almost verbatim from Ellis’ article, such passages ought to have been introduced by an acknowledgement that they are from that article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis said.) x x x
“But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65.
x x x
“Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descent’s article, A Fiduciary Theory of Jus Cogens. Criddle-Descent’s footnotes were carried into the Vinuya decision’s own footnotes but no attributions were made to the two authors in those footnotes.
“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. She said that, for most parts, she did her research electronically. For international materials, she sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court subscribes.
x x x
“With the advent of computers, however as Justice Del Castillo’s researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her “main manuscript,” a smorgasbord plate of materials that she thought she might need. The researcher’s technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his table. He would get rid of the scraps.
“Here, Justice Del Castillo’s researcher did just that. She electronically “cut” relevant materials from books and journals in the Westlaw website and “pasted” these to a “main manuscript” in her computer that contained 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. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work.
“Justice Del Castillo’s researcher showed the Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions.
“The Court adopts the Committee’s finding that the researcher’s explanation regarding the accidental removal of proper attributions to the three authors is credible. 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.”

Contrary to the view of my esteemed colleagues, the above is not a fair presentation of what happens in electronically generated writings aided by electronic research.
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.
Plagiarism and Judicial Plagiarism
Plagiarism is an act that does not depend merely on the nature of the object, i.e. what is plagiarized, but also hinges on the process, i.e. what has been done to the object. The elements of this process are the act of copying the plagiarized work and the subsequent omission in failing to attribute the work to its author.[15] Plagiarism thus does not consist solely of using the work of others in one’s own work, but of the former in conjunction with the failure to attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another as one’s own. As the work is another’s and used without attribution, the plagiarist derives the benefit of use from the plagiarized work without expending the requisite effort for the same ─ at a cost (as in the concept of “opportunity cost”) to its author who could otherwise have gained credit for the work and whatever compensation for its use is deemed appropriate and necessary.
If the question of plagiarism, then, turns on a failure of attribution, judicial plagiarism in the case at bar “arises when judges author opinions that employ materials from copyrighted sources such as law journals or books, but neglect to give credit to the author.”[16] Doing so effectively implies the staking of a claim on the copied work as the judge’s own.[17] Note that there is no requirement of extent of copying or a minimum number of instances of unattributed usage for an act to be considered a plagiarist act, nor is the intent to deceive or to copy without attribution a prerequisite of plagiarism. In Dursht’s exhaustive analysis of judicial plagiarism she cites the case of Newman v. Burgin[18] wherein the court said that plagiarism may be done “through negligence or recklessness without intent to deceive.”[19] Dursht in addition notes that intent may also be taken as the intent to claim authorship of the copied work, whether or not there was intent to deceive, citing Napolitano v. Trustees of Princeton Univ.[20]
George describes the following among the types of judicial plagiarism:
Borrowed Text: When quoting a legal periodical, law review, treatise or other such source, the judicial writer must surround the borrowed text with quotation marks or use a block quote. . . . Additionally, the source should be referenced in the text . . .
Using another’s language verbatim without using quotation marks or a block quote is intentional, as opposed to unintentional, plagiarism.
Reference errors: The judge may fail to put quotation marks around a clause, phrase or paragraph that is a direct quote from another’s writing even though he cites the author correctly. This is plagiarism even though it may be inadvertent.[21]

While indeed the notion of having committed judicial plagiarism may be unsettling to contemplate, as it may raise in the mind of a judge the question of his or her own culpability[22], it is a grievous mistake to overlook the possibility of the commission of judicial plagiarism or the fact that judicial plagiarism is categorized by its very definition as a subset of plagiarism. That a judge, in lifting words from a source and failing to attribute said words to said source in the writing of a decision, committed specifically judicial plagiarism does not derogate from the nature of the act as a plagiarist act. Nor does any claim of inadvertence or lack of intent in the commission of a plagiarist act change the characterization of the act as plagiarism.

Penalties for Plagiarism and
Judicial Plagiarism

In the academe, plagiarism is generally dealt with severely when found out; many universities have policies on plagiarism detailing the sanctions that may be imposed on students who are found to have plagiarized in their coursework and other academic requirements. These run the gamut from an automatic failing grade in the course for which the offending work was submitted, or in more egregious cases, outright expulsion from the university. Sanctions for plagiarism in the academe operate through “the denial of certification or recognition of achievement”[23] to the extent of rescinding or denying degrees. In the case of law students who do manage to obtain their degrees, their admission to the bar may be hindered due to questions about their “character or fitness to practice law.”[24] Indeed, plagiarism, due to the severity of the penalties it may incur, is often identified with the punishment of “academic death.”[25] The academe justifies the harshness of the sanctions it imposes with the seriousness of the offense: plagiarism is seen not only to undermine the credibility and importance of scholarship, but also to deprive the rightful author of what is often one of the most valuable currencies in the academe: credit for intellectual achievement ─ an act of debasing the coinage, as it were. Thus the rules of many academic institutions sanctioning plagiarism as a violation of academic ethics and a serious offense often classed under the broader heading of “academic dishonesty.”
The imposition of sanctions for acts of judicial plagiarism, however, is not as clear-cut. While George recognizes the lack of attribution as the fundamental mark of judicial plagiarism, she notes in the same breath that the act is “without legal sanction.”[26] Past instances of censure notwithstanding (as in examples of condemnation of plagiarism cited by Lebovits et al[27], most particularly the censure of the actions of the judge who plagiarized a law-review article in Brennan[28]; the admonition issued by the Canadian Federal Court of Appeal in the case of Apotex[29]) there is still no strictly prevailing consensus regarding the need or obligation to impose sanctions on judges who have committed acts of judicial plagiarism. This may be due in a large part to the absence of expectations of originality in the decisions penned by judges, as courts are required to “consider and usually . . . follow precedent.”[30] In so fulfilling her obligations, it may become imperative for the judge to use “the legal reasoning and language [of others e.g. a supervising court or a law review article] for resolution of the dispute.”[31] Although these obligations of the judicial writer must be acknowledged, care should be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission of judicial plagiarism. Nor do said obligations diminish the fact that judicial plagiarism “detracts directly from the legitimacy of the judge’s ruling and indirectly from the judiciary’s legitimacy”[32] or that it falls far short of the high ethical standards to which judges must adhere[33]. The lack of definitiveness in sanctions for judicial plagiarism may also be due to the reluctance of judges themselves to confront the issue of plagiarism in the context of judicial writing; the apprehension caused by “feelings of guilt” being due to “the possibility that plagiarism has unknowingly or intentionally been committed” and a “traditional” hesitance to consider plagiarism as “being applicable to judicial writings.”[34]
Findings of judicial plagiarism do not necessarily carry with them the imposition of sanctions, nor do they present unequivocal demands for rehearing or the reversal of rulings. In Liggett Group, Inc., et al v Harold M. Engle, M.D. et al[35], a U.S. tobacco class action suit, “[the] plaintiffs’ counsel filed a motion for rehearing alleging that the appellate opinion copied large portions of the defendants’ briefs. . . . without attribution.” The result of this, the plaintiffs claimed, was the creation of the “appearance of impropriety,” the abdication of judicative duties, the relinquishing of independence to defendants, the failure to maintain impartiality, and therefore, as an act of judicial plagiarism, was “a misrepresentation of the facts found by the trial court and denied plaintiffs due process of law.”[36] The three-judge panel denied the motion. In addition, “courts generally have been reluctant to reverse for the verbatim adoption of prepared findings.”[37] In Anderson v. City of Bessemer City, North Carolina[38] it was held that even though the trial judge’s findings of fact may have been adopted verbatim from the prevailing party, the findings “may be reversed only if clearly erroneous.”[39]

On Guilt and Hypocrisy

It is not hypocrisy, contrary to what is implied in a statement in the majority Decision, to make a finding of plagiarism when plagiarism exists. To conclude thus is to condemn wholesale all the academic thesis committees, student disciplinary tribunals and editorial boards who have made it their business to ensure that no plagiarism is tolerated in their institutions and industry. In accepting those review and quality control responsibilities, they are not making themselves out to be error-free, but rather, they are exerting themselves to improve the level of honesty in the original works generated in their institution so that the coinage and currency of intellectual life – originality and the attribution of originality – is maintained. The incentive system of intellectual creation is made to work so that the whole society benefits from the encouraged output.
In the case of judicial plagiarism, it is entirely possible for judges to have violated the rules against plagiarism out of ignorance or from the sheer fact that in order to cope with their caseloads, they have to rely on researchers for part of the work. That would have been a very interesting argument to consider. But ignorance is not pleaded here, nor is the inability to supervise a legal researcher pleaded to escape liability on the part of the ponente. Rather, the defense was that no plagiarism existed. This conclusion however is unacceptable for the reasons stated above.
As noted above, writers have ventured to say that the reluctance to address judicial plagiarism may stem from fear, nay, guilt.[40] Fear that the judge who says plagiarism was committed by another is himself guilty of plagiarism. But that is neither here nor there. We must apply the conventions against judicial plagiarism because we must, having taken on that obligation when the Court took cognizance of the plagiarism complaint, not because any one of us is error-free. In fact, the statement on hypocrisy in the majority Decision betrays prejudgment of the complainants as hypocrites, and a complaint against a sitting judge for plagiarism would appear impossible to win.
In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges is stare decisis. One wonders how the issue should have been treated had what was plagiarized been a court ruling, but that is not at issue here. The analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a decision that plagiarizes law review articles, not to his copying of precedents or parts of the pleadings of the parties to a case.
As earlier said, a determination of the existence of plagiarism in
decision-making is not conclusive on the disciplinary measure to be imposed. Different jurisdictions have different treatments. At the very least however, the process of rectification must start from an acknowledgment and apology for the offense. After such have been done, then consideration of the circumstances that mitigate the offense are weighed. But not before then.

The Unfortunate Result of
the Majority Decision

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. 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.
The Way Forward
Assuming that the Court had found that judicial plagiarism had indeed been committed in the Vinuya decision, the Court could then have moved to the next logical question: what then is the legal responsibility of the ponente of the Vinuya decision for having passed on to the Court en banc a ponencia that contains plagiarized parts?
There would have been at that point two possible choices for the Court vis-à-vis the ponente ─ to subject him to disciplinary measures or to excuse him. In order to determine whether the acts committed would have warranted discipline, the Court should have laid down the standard of diligence and responsibility that a judge has over his actions, as well as the disciplinary measures that are available and appropriate.
The Court could also have chosen to attribute liability to the researcher who had admitted to have caused the plagiarism. In In re Hinden, disciplinary measures were imposed on an attorney who plagiarized law review articles.[41]

Response to the Decretal
Portion of the Majority Decision

In view of the above, it is my opinion:

1. That Justice Mariano C. del Castillo and his unnamed researcher have committed plagiarism in the drafting and passing on of the ponencia in the Vinuya decision;
2. That this Court should request Justice del Castillo to acknowledge the plagiarism and apologize to the complaining authors for his mistake;
3. That this Court should cause the issuance of a corrected version of the Vinuya decision in the form of a “Corrigendum”;
4. That court attorneys should be provided with the appropriate manuals on writing and legal citation, and should be informed that the excerpts complained of and described in Tables A, B, and C of this opinion are acts of plagiarism and not mere editing errors or computer-generated mistakes;
5. That the refusal of the majority to pronounce that plagiarism was committed by Justice del Castillo means that any judicial opinion on his liability or that of his researcher would be academic and speculative, a ruling which this Dissenting Opinion will not venture to make a pronouncement on; and
6. That a copy of this Dissenting Opinion should be circulated by the Public Information Office in the same manner as the Majority Decision to the complaining authors Christian J. Tams, Mark Ellis, Evan Criddle and Evan Fox-Decent.

MARIA LOURDES P. A. SERENO
Associate Justice

[1] Isabelita C. Vinuya, et al. v. The Honorable Executive Secretary, et al., G.R. No. 1622309, April 28, 2010.
[2] Judges cannot be liable for copyright infringement in their judicial work (Section 184.1(k), R.A. 8293).
[3] Justice Mariano del Castillo’s letter addressed to Chief Justice Renato C. Corona and Colleagues, dated July 22, 2010.
[4] Gordon Harvey, WRITING WITH SOURCES: A GUIDE FOR HARVARD STUDENTS (Hackett Publishing Company, 2nd ed. [c] 2008).
[5] Id. at 32.
[6] Id. at 33.
[7] Id.
[8] Id. at 34.
[9] Id. at 32-35.
[10] Id. at 32.
[11] Id. at 33.
[12] Harvey, supra at 32.
[13] Id. at 32.
[14] Id. at 26.
[15] Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 HASTINGS L. J. 167, at 173.
[16] Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 CARDOZO L. REV. 1253, at 1.
[17] JOYCE C. GEORGE, Judicial Plagiarism, JUDICIAL OPINION WRITING HANDBOOK, (accessed on 10/12/2010).
[18] Newman v Burgin, 930 F.2d 955 (1st Cir.) as cited in Dursht, supra at 4 and note 60.
[19] Newman v. Burgin, id. at 962 as cited in Dursht, id. at 4 and note 61.
[20] 453 A.2d 279 (N.J. Super. Ct. Ch. Div. 1982) as cited in Dursht, supra at 1 and note 6.
[21] George, supra at 715.
[22] Id. at 707-708.
[23] Dursht, supra note 16 at 5.
[24] In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865, as cited in Dursht, id. at 5 and note 92.
[25] Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic Death Penalty, 57 COLLEGE ENGLISH 7 (Nov., 1995), at 788-806, as cited in the JSTOR, http://www.jstor.org./stable/378403 (accessed on 02/05/2009, 17:56) 789.
[26] George, supra note 17 at 715.
[27] Klinge v. Ithaca College, 634 N.Y.S.2d 1000 (Sup. Ct. 1995), Napolitano v. Trustees of Princeton Univ., 453 A.2d 279, 284 (N.J. Super. Ct. Ch. Div. 1987), and In re Brennan, 447 N.W.2d 712, 713-14 (Mich. 1949), as cited in Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 THE GEORGETOWN JOURNAL OF LEGAL ETHICS 264, note 190.
[28] See In re Brennan, 447 N.W.2d 712, 713-14 (Mich. 1989) as cited in Lebovits, et al., supra at note 191.
[29] Apotex Inc. v. Janssen-Ortho Inc., 2009, as cited in Emir Aly Crowne-Mohammed, 22 No. 4 INTELL. PROP. & TECH. L.J. 15, 1.
[30] Richard A. Posner, The Little Book of Plagiarism, 22 (2007), and Terri LeClercq, Failure to Teach: Due Process and Law School Plagiarism, 49 J. LEGAL EDUC., 240 (1999), as cited in Carol M. Bast and Linda B. Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 CATH. U.L. REV. 777, note 85.
[31] George, supra note 17 at 708.
[32] Lebovits, supra at 265.
[33] See generally Dursht; supra note 16; and Lebovits, supra.
[34] George, supra note 17 at 707
[35] Liggett Group, Inc. v. Engle, 853 So. 2d 434 (Fla. Dist. Ct. App. 2003), as cited in Bast and Samuels, supra at note 102.
[36] Id.
[37] Counihan v. Allstate Ins. Co., 194 F.3d at 363, as cited in Roger J. Miner, Judicial Ethics in the Twenty-First Century: Tracing the Trends, 32 HOFSTRA LAW REV. 1135, note 154.
[38] Anderson v. City of Bessemer, 470 U.S. 564, 572 (1985) as cited in Miner, id.
[39] United States v. El Paso Natural Gas Co., p. 656, and United States v. Marine Bancorporation, p. 615, as cited in George, supra note 17 at 719.
[40] See Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 HASTINGS L. J. 167; and Peter Shaw, Plagiary, 51 AM. SCHOLAR 325, 328 (1982); and Green, supra at 180 as cited in George, supra at note 1
[41] In re Hinden, 654 A.2d 864 (1995) (U.S.A.).

The Repeated Siege of the Women of Mapanique, Candaba, Pampanga


At dawn of November 23, 1944, Japanese troops descended on the town of Mapanique, Candaba, Pampanga. To the shock of the local inhabitants, Japanese troops gathered all the men and boys and proceeded to castrate many of them. After which, the men were forced to put their severed sexual organs in their mouths before they were burned to death en masse.

The women and girls, on the other hand, were marched to what is known until today as “Bahay na Pula” (red house) in San Ildenfonso, Bulacan. There, the women and girls were interred and repeatedly raped.

The magnitude of the Japanese cruelty witnessed by the remote town of Mapanique was because the town was known to be hotbed of resistance to Japanese rule. It was in Central Luzon where the guerilla movement, HUKBALAHAP, was formed only months before he siege of Mapanique. One of its most respected leaders was a woman, Commander Dayang Dayang, who was herself a native of Mapanique. This, plus the desperation of the Japanese troops who already knew that they had lost the war, would explain the unparalleled cruelty that accompanied the war crimes committed by the Japanese troops against the civilian population of the town.

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 rape and other war crimes from Mapanique formed the group known as Malaya Lola’s, or liberated grandmothers. While primarily an organization of women who were victims of mass rape committed by the Japanese during the infamous siege of Mapanique, it also includes in its roster women folk 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 their suit before the Philippine Supreme Court, the Malaya Lolas had their 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 of case Vinuya et. Al. versus Executive Secretary.

The suit was itself novel because it was researched, drafted, prepared and filed by law students who were then enrolled in the first ever course on International Humanitarian Law in the Philippines. In that year, the University of the Philippines Institute of International Legal Studies, an Institute that I once headed, embarked on a training program on the teaching of IHL in Philippine law schools. To practice whet we were then preaching, UP pioneered in the teaching of IHL as a separate course since IHL used to be taught only as part of the general course on Public International Law.

It was in the course of teaching this pioneer class on IHL that the Malaya Lolas requested for us to provide them with a legal remedy after their suit for compensation had been dismissed by the Japanese courts. After some of the Lolas met the students then enrolled in that class, many of whom have become leading authorities in International Law today, such as Diane Desierto of Yale and the International Court of Justice, Neal Silva of the Department of Justice, Raymond Sandoval of the International Criminal Court; the students came out with this cause of action: 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. Accordingly, 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 position of the Philippine Government that further reparations is barred by a waiver which the Republic signed, the students argued that such waiver is null and void for being contrary to public policy and that the state cannot waive a right that inures to its nationals. The students likened this second argument to the prosecution of the crime of rape. While the state is the offended party in a criminal prosecution for the crime of rape, compensation that would excuse the rapist from incurring criminal responsibility could only come from a pardon made by the private offended party. Here, it is the private offended party that has the power to determine whether or not to accept compensation in exchange for the dropping of a criminal case. There should no difference , the students argued, where the crime is more abominable, such as in the war crime of mass rape.

6 years after the filing of the case of Vinuya, 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 the Philippines entered into the San Francisco Peace Pact where 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 is the second siege of the women of Mapanique.

In a few hours, read about the third siege of the women from Mapanique, Candaba, Pampanga.