(Recording 13 & 14)

Objective responsibility
Whether there is fault or not, if there is a clear breach of duty by the state
then the state is deemed liable. International law does not require culpa or
negligence.
What are the consequences of Internationally Wrongful Act?
1. Reparation
3 Ways of Effecting Reparation (sequential)
1. Restitution - to bring back to the situation prior to the
commission of the internationally wrongful act.
2. Compensation if there is partial restitution
- If restitution cannot repair the damage
- If restitution is not possible anymore
3. Satisfaction formal apology or acknowledgment of the
breach
- When both restitution & compensation cannot
be made anymore
- If its not proven that actual damage has
resulted from an internationally wrongful act.
2. If the breach is a continuing non-performance, there is the obligation to
perform. If act of comission, then there is legal obligation to stop the act or
series of acts that constitute an internationally wrongful act. There is an
obligation to stop and further to give assurance of non-repetition if necessary
to give such assurance.
Nagymaros case
aside from stopping what they have done in giving assurance with the
other state, they must not do any act that will similarly result to such
damage
They cannot just unilaterally stop performing their treaty obligation.
They are only allowed to act unilaterally during the state of necessity.

Art. 33 of the State of Necessity

Par. 1 a State of necessity cannot.
1. State of necessity is a justifying circumstance on the following instances:
Only when the act is the means of safeguarding
Aimed at protecting an essential interest
Against a grave and imminent peril
2. Whatever is the act of the state in violation or which is not in conformity with
international obligation, when a state acts or claims that it is acting on
necessity therefore, it must also see to it and calibrate its action so as not to
seriously . Pahuway sa daw c maam.

Yemen (current events)

nagkontra ang isig ka Muslim. Was it an internationally wrongful act in the
affairs of a separate state? Is a state acting in a state of necessity? Was Saudi
Arabia in imminent danger? Is it an essential interest of Saudi Arabia? Did it
seriously impair an essential interest of Yemen?
A state acting in a state of necessity must also assess that what it has done
was not overly broad. Was it a case of killing a fly with a nuclear bomb?
Overdoing it.
Sec. 33 paragraph 2.
A State of necessity cannot be invoked in the following instances:
1. Customary International Law
2. Treaty Obligation
3. If the wrong which is sought to be prevented arose also with the
contribution of the State who claims to be acting in a state of necessity.
- pari delicto, as they are, tabla silang duha if both contributed to the
occurrence of the wrong, both are guilty.
- Unless there is an important state interest which requires that a
determination of wrong should be made. For example free patent.
Property was sold within 5 years, both the seller and buyer are guilty. So
the free patent title can be cancelled and land will revert to the State.
State of Necessity
- is a situation therefore where a state whose sole means of safeguarding
an essential interest was to adopt conduct not in conformity with what is
required with it under international law obligation. It is an act of omission
or commission not in conformity with International law obligation.
Par. 51 Nagymaros case
State of Necessity is a ground recognized in customary international
law, an accepted norm. However it is only accepted by way of
exception not by way of a general rule.
GR: State must comply with their customary international
obligation
RE: Unilateral Act of Hungary (Nagymaros)
Court held that there was no objective evidence of a peril

SUMMUM IUS SUMMA INIURIA

Extreme justice is extreme injustice

 The law cannot be enforced in its literal terms to widely varying

circumstances because in enforcing the letter of the law, you could
be doing an injustice because you could be violating the spirit of the
law.
Maam: The best constitution is the 1935 Constitution because its short and
broad. It must be broad enough to adjust to a changing situation because you
cannot be amending your constitution to adjust to a new situations.
ESSENCE OF CONSTITUTION
As basic law means that it should be good for the rest of the lifetime of that
State.

Par. 83-85 of Nagymaros case

Action was justified as a countermeasure
It is deemed a countermeasure if:

It is a response to a previous internationally wrongful act

Injured state must have requested for reparation first or stopping,
discontinuance of a wrongful act before a countermeasure can be done
Commensurate to the injury suffered
PRINCIPLE OF PROPORTIONALITY (Nagymaros)

Slovakia cannot justify its act because it failed to observe the principle of
proportionality.
Parties must first between themselves settle the issues insofar as reparation
is concerned before doing anything else.

ANOTHER CONCEPT
Reprisal revenge
- acts of self-help by the injured state, acts in retaliation or acts contrary to
international law which remained unaddressed.
ELEMENTS:
1. Demand cessation of wrongful act or doing of a legal obligation
- Demand to stop doing act of commission or perform your duty
imposed by International obligation.
2. To require reparation with the 3 consequential modes (restitution, compensation,
satisfaction)
- example ni Maam: oral defamation nga kaso daw

If the offending party fails to comply with the demand, then the State
(offended party) will be entitled to effect reprisal. Observe the principle of
Proportionality, only insofar as necessary to prevent further damage on the part of
the reprising state.
Countermeasure is a little bit limited and harmless than reprisal. Reprisal is
illegal unless requirements are complied with.

CORFU CHANNEL
It is the responsibility of Albania to inform non-combatant states the danger
of its territory.
It is their positive international obligation not to knowingly allow its territory
to be used as a staging ground to commit an internationally wrongful act.

SERBIA & MONTENEGRO VS. UK

Legality of the use of force. It is the duty of the succeeding state to register
as a member of the UN before they can seek redress from an organ of the
UN.
DJIBOUTI
A state which seeks to claim immunity from one of its State organs is
expected to notify. So France cannot just bluntly ignore the letter rogatory of
Djibouti.
It has the positive international responsibility to inform that it cannot comply
with the letters rogatory and state the reasons why it cannot.

WHEN CAN A STATE LOSE ITS RIGHT TO REQUEST RESTITUTION FOR AN

INTERNATIONALLY WRONGFUL ACT?
1. When there is waiver
2. After the lapse of a reasonable period of time, it didnt do anything
equivalent to the concept of laches
Laches means an unreasonable delay, failed to assert your claim and
thereby caused the other party to believe that there was no wrong, that it did
not commit any wrong.
- Example imong juta gilapasan ja wa ka nireklamo

RESPONSIBILITIES OF A STATE WITH RESPECT TO ALIEN

1. Same responsibility that it has towards its own citizens within its own
territory.
2. State has additional rights i.e. right to expel
3. Can expel overstaying aliens
4. Reconduction
Right to forcibly convey an alien to the frontier of its home state. More
in keeping with a continental state.
5. Right to Asylum
That a state has a responsibility to grant but is something that is to be
determined by the domestic law of a State.
EXILE & ASYLUM
- Exile is when you are expelling somebody, asylum is when you are taking
somebody. Exile must be voluntary on the part of the citizens. A state has no right
to expel its own nationals. Ex. Marcos case. If the case will be revisited, it has
likelihood to be reversed because under the Convention on Human Rights, Each
person has the right to a nationality, each State has the duty to give proof of
citizenship to its nationals.
ART. 14. Universal Declaration of Human Rights
- It is prohibited of a State to forcibly repatriate an alien.
MUSLIM MYANMAR CITIZENS
There is this tribe being prosecuted because they are seeking independence
for themselves to create an Islamic state in the territory of Myanmar. Some sought
asylum in Australia If you are taking people to your territory, you are supposed to
see to the welfare of these people according to the standards of living of your state.
Australia has no right to forcibly repatriate those asylum seekers. But wise pod ang
Australia, gisuholan nila ang silingan nga small pacific state to take in these asylum
seekers according to the standards of living of that small pacific state. Unja kay
nanggibahag raman pod ang mga tawo didto.
A state can deny or grant asylum.

Grounds for asylum:

Political and Religious prosecution

CONDITIONS FOR THE ENFORCEMENT OF INTERNATIONAL CLAIM FOR

INJURY OF AN ALIEN AGAINST A HOST STATE
1. Must have exhausted the remedies in the host state
Except when there is no judicial process

Positive proof that even if you avail of the judicial process, no redress
can still be had
a waiver or an agreement to submit the matter to arbitration

2.
The injury subject of the claim must have been suffered by the national of
the claiming state. It is the claiming state acting in representation of its own
nationals in the International Arena.
Nottebohm case
Liechtenstein cannot act in behalf of Nottebohm because it has no
personality because Nottebohm is not a legitimate Leichtenstein
subject or citizen

AVENA CASE

Failure to give Miranda warnings.

Aliens are supposed to be treated by the host state as the host state treats its
own nationals.
It must be in a language understood, otherwise it is not an effective warning
at all.
US failed to give them Miranda warnings.
State has the international obligation in respect to aliens to inform aliens of
their rights under the domestic law of the state in a manner that the alien will
be able to understand.

CHIKKA: Kadtong Intsik nga nadakpan nga naay porn videos ja ang gidakop kadtong
batang Intsik nga mao pay pag-abot sa Maasin, way English bisan gamay.
Nakatabang daw ni Atty. Tomol ang Avena case.

(Recording 15)
FILARTIGA CASE

W/N Pena-Irala is liable is liable for punitive damages (Torts).

Question on Forum Non-Conveniens (FNC).
We are talking about international law, human rights law.
State has jurisdiction over all crimes and persons within its jurisdiction,
although in the Lotus case, jurisdiction can be lodged in either country
especially when the occurrence of a crime was terra nullius in international
waters for example in that case, but it produce effect in two territories.
GR: it is the court of the place where an alleged tortious act or criminal act
was committed which has jurisdiction over cases. Now we have here an
exception, largely because we are talking about Human rights law,
international human rights.
Dolly applied for a hold departure order that she will not be deported back to
Paraguay in order for her to be able to testify in the case she filed. But in the

end because the original court in New York dismissed her case, so she was
given 48 hours within which to seek from a higher court a hold departure
order. But she was not able to do that. Actually, when the crime was tried
before the Federal Court, Pena was already back in Paraguay. And thats why
he raised the issue of Forum Non-Conveniens.
Forum Non-Conveniens
Pronouncement of the Court:

It was not raised in the lower court so the court cannot take it on
appeal anymore. What was appealed by Dolly Filartiga to the higher
court was the dismissal of her case against Pena-Irala on the ground
that the court has no jurisdiction. That was the threshold issue that
was raised on appeal.

We have to consider first of all that the US has a special law, Alien Tort Law. It
had a special law which granted Federal court jurisdiction to hear tort actions
against aliens, all right? These are special laws created that special
jurisdiction is with the federal courts. There were other issues like act of
states also raised by Pena but the lower court merely said that well, since the
act from which punitive damages is being sought occurred in Paraguay then it
has no jurisdiction over the case. Now on appeal, the federal court said that it
has jurisdiction to begin with because torture is by customary international
law a criminal act or a punishable act, it is a prohibited act.
The issue that is connected with the issue of jurisdiction is, can the US enact
a law which grants its own court jurisdiction to try cases involving tortious act
of aliens (question on the validity of Alien Torts Act). Federal Court said that:
Customary International law is part of the law of the land. This is the
legal history of how the court was able to uphold the validity of the
Alien Torts Act. Customary International law by common law is part of
the law of the land of the US when it adopted the Constitution. So,
because it is part of the law of the land, because torture is under
customary international law an act that is prohibited, then the US as
implementer of international law which is part of the law of the land
has the competence to enact a law which allows foreigners to sue
foreigners in its own court for acts which are a violation of accepted
international law. Thats why the court held that, well there is no
question that torture has cited the convention against the declaration
on the protection of all persons from being subjected to torture. It
expressly prohibits any state from permitting any act by which severe
pain & suffering whether physical or mental is intentionally inflicted by
or at the instigation of a public official on a person for such purposes
as for example intimidating him or other person. Also it cited the
Declaration on Human Rights.
In this case, the court rejected, departed, it turned around, it considered as
no longer applicable its ruling in the earlier case of Dreyfus. In Dreyfus, it was

said that violations of international law do not occur when an aggrieved party
is a national of acting state. For example, if an act is committed between
persons of the same nationality, there is no violation of international law
because what is violated is domestic law. Unfortunately, according to the
court, that was a case which has been overtaken by time because now, it is
internationally accepted that torture is an act which is a violation of human
right. According to the court, the declaration against torture was even
adopted unanimously by all member state including Paraguay.
It was remanded to the lower court
Back to the lower court, because Pena was by the way this Duarte who said
that hes the one who actually killed the victim is the son of Juana who was
the common-law wife of Pena. Now, on remand to the lower court for
determination on W/N Pena can be held liable for punitive damages, all right?
So what happen was, Pena was no longer there, nisibat na because he knew
that he can be protected. So he raised jurisdictional issues now on the trial of
the merits but still he raised two issues: First, he alleges that is is an act of
State because he was a police, he was saying that if it was not an act, if it
was not with the approval of the State then how is it that Duarte was not
convicted when he confessed? That was his allegation. Now, how did the
lower court rule? The lower court said something that we must remember.
Paraguay is a signatory to the International Convention on Human Rights,
Paraguay is a signatory to the Declaration against torture. So therefore,
Paraguay as a State is bound by that, correct? It being bound by that,
although according to the court it goes without saying that in Paraguay
torture still happens. So in other words, Paraguay officially takes a stand that
it have taken formally. Its a case of not doing what you are saying. But
according to the Court, it does not depend on that, what is important to look
into is W/N Paraguay as a State recognizes that torture is a violation of
human rights and it does. It doesnt depend on what its official say. By the
way, the Supreme court on appeal had stated that International Human
Rights especially that against torture is a provision of International law and
even Conventional international law which is subject to derogation by the
States. It is one that is subject to derogation. What is derogation? State
exceptions. In other words, you sign a convention, you can say we sign this
we agree to this provided that we did not agree to this particular portion. In
other words, you are not adopting the whole in toto. But human rights is not
subject to derogation. So, that is the principle that you must remember. That
is something that may come out in the Bar because of whats happening in
Syria, because of whats happening in Sedan, North Sedan, South Sedan, all
of them are guilty of torturing their own citizens. And even Burma is respect
to the Roponggi, the Muslims in Burma who are being driven out of Burma by
their own government & nobody will take them, all right?
On remand now, he raised the issue of Forum Non-Conveniens. What does it
mean? By the words itself that it is not convenient. It is not convenient for
him. FNC therefore is not equivalent to without jurisdiction but it is not
convenient because it is not convenient to the defendant because there is
another court that is more convenient that also has jurisdiction. Now

remember in procedure, who has the right to choose? The plaintiff has the
right to choose the venue, it is the venue that you have the right of choice.
So generally, the venue is where the plaintiff resides because that is
convenient for the plaintiff. FNC is actually a matter of international law and
conflict of laws such as this case. Now in this case, remember that both
parties are Paraguayans, the crime complained of occurred in Paraguay, there
is a law in Paraguay that punishes killing. So in other words, under the laws of
Paraguay, the courts of Paraguay also has jurisdiction. FNC is not a case of
lack of jurisdiction but rather concurrent jurisdiction between two courts in
two states. So there are several factors to be considered, of course the
convenience of the plaintiff is the first determining factor. Now normally, it is
the defendant who will raise the issue of FNC. However, the lower court
rejected the argument. The court said that, while it is true that it may be
inconvenient for Pena to be defending himself in the US but the fact that he
did not fight his deportation (because there was an application by Dolly to
hold his deportation) he opposed it. Thats why he was finally deported
because there was no hold departure order anymore after the lower court had
dismissed the case. According to the court, when he defaulted, when he
allowed himself to be defaulted in this case, then the plea of FNC lacks
credibility because if he felt that it was not convenient for him then he should
have stayed in the US and should have fought his extradition on the ground
that he was facing a case there, di ba? That is the normal thing to do of a
person who believes that he is innocent. According to the court, that is an
indication that his plea is without good faith on the part of Pena.
Secondly, according to the court, had it been defaulted, nevertheless he was
not able to show evidence to prove that (this was the decision of the lower
court in 1984, 4 years later), he cannot claim FNC without proving the
inconvenience ok? That is the principle on FNC. If you are claiming FNC, you
have to prove that it is really not convenient.

FACTORS TO BE CONSIDERED
1. You have to prove that there is a court that has jurisdiction as in this case.
The lower court said that there is no proof that the court in Paraguay is
ready to render justice because there was evidence already submitted
earlier that this Duarte although he confessed that he did the murder,
hes not convicted. Remember before when we said that before a
national can sue a state under international law, the private person
must pursue the legal remedies at the domestic level and only when
he has exhausted that or when he has been able to demonstrate that
he will not get justice then he can resort to international tribunals for
adjudication of his rights violated in a particular country.
In this case, there was no proof, that in fact in the contrary, evidence
on record show that Paraguayan court was not ready to render justice.
So what is the point of still pursuing the case there?

2. It is not enough to say that it is inconvenient for you because in the first
place the option is given to the plaintiff.
It must not be a mere shifting of inconvenience to the plaintiff. Is
the inconvenience of the defendant so grave as to overcome the
inconvenience of the plaintiff if the case will be transferred to other
court that has concurrent jurisdiction? Appealed FNC needs to be
proven that it is not merely a case of transferring the inconvenience
from the defendant to the plaintiff.
Because it is shown that no justice can be had in the Paraguayan court, the
federal district court in New York rejected the plea of FNC.
On the act of State, the court said that it cannot be considered an act of state
because there was no clear, express consent of the President for example.
That the act of the President was not clearly proven. So you cannot say that
the act of the President is contrary to the State (Paraguay). In order for it to
become an act of State, it should involve many people and it should not be
just an isolated case. But to competently prove an alleged unlawful
internationally wrongful act to be an act of State, you must prove that it is a
policy of the State. In other words, not just one isolated case. You must refer
to several cases which shows a policy, a plan, a deliberately adopted plan to
pursue ok?
The court said that it is not an act of state because there is no clear
confirmation or affirmation by the state of the acts.
Here is the question now, (577 Federal Supplement pp. 860) decided on 1984
by the Eastern district of NY federal district court.
So the court says it has jurisdiction ok? Now, the issue now becomes, which
law are we going to apply? Because the Alien Torts Act is the only one that
grants jurisdiction. It does not say how punitive damages or what would be
the basis of punitive damages. But which law is it? The domestic law in
Paraguay or the US law? Of course it cannot be US law because nothing
happened in the US all right?
So the court said, it should apply the substantive principles in international
law. But this is an action for damages, so how do we measure? Nothing in the
human rights declaration, nothing in the declaration against torture says
what will be the measure of penalty. These laws merely said that they will be
punished according to domestic law because the jurisdiction of the court was
founded on the fact that the act complained of is an internationally wrongful
act. Then it must look to international law to determine what will be the
imposable penalty. It must look to international law in the first place to find
out whether it is really punishable under international law. And if it is
punishable under international law, what penalty does the international law
impose? So looking towards international law, you are referred back to
domestic law, its like a Pingpong. That is the thing to do to analyze.

(Recording 18)
Asa ra ba to si Yanssen, unsa ra ba tong ijang gipangutana? Ah kadtong sa
Nicaragua diay to, if it is a crime agains humanity.
LEGAL CONSEQUENCES case
Israel is obliged to comply with its international obligation that it
has breached by the construction of the wall.
It is bound to comply with its obligation to respect the right of the
Palestinian people to self-determination.

 Of course the UN was not able to implement its decision insofar as

the demolition of the wall.
We know that Israel was occupying a territory in the State of
Palestine, so it was an invader, it is still an invader.
The court said that nevertheless, even if its not within its territory,
its obligations to the people within the occupied area are
obligations erga omnes, so it is still held responsible for whatever
happened to these people and to make the appropriate remedial
actions to these people.
OIL PLATFORM case
Iran filed a case against the US for the breach of the Treat of Amity between
US and Iran.
There were two incidents involved in the case. First, on October 1987, the US
military struck Irans oil installation. Second, on April 1988, the US military
struck and damages two more Iranian oil installations.
According to the US what they did was only an act of self-defense because
first, before they struck the Iranian oil platform on Oct. 1987, there was a
missile attack on the Sea Isle City, a Kuwaiti oil tanker but reflagged to the US
and so they attacked 3 days after. Second, with regards to the April 1988
attack on the oil platform, the military ship of the US struck mine in the
Persian Gulf. After a few days, they attack again another oil platform of Iran.
The oil platforms are situated offshore, in the Persian Gulf.
Thats why Iran filed a case against the US.
According to the court, that in order for the US to claim self-defense: First, it
must prove that there was substantial aggressive force employed by Iran.
Second, that the attack must have been attributable to Iran. Third, that there
was a specific intent to strike the US. Also, US has to prove that their
preemptive strike was necessary, proportionate and has to look into the
nature of the target of the defensive force (US was the one exercising
defensive force).
The court first look into the Kuwaiti oil tanker in Sea Isle City. According to the
court, the missile was 100km away and it could not have been aimed at any
specific vessel but on anything that it hits in the Persian Gulf. Even if it was
under the flagship of the US, the attack on the vessel in itself cannot be
equated to an attack on the state because there was no proof that the US
Flag was specifically targeted. No specific intent to go against the US.
Therefore, since you cannot determine who the intended target was, US
cannot claim self-defense.
About the mine, there was no evidence that it was actually Iran who put the
mines in that area because during that time Iran and Iraq was also at war. So
it cannot be established that the laying of the mines was intended to harm
the US naval ship. So again, lack of specific intent against the US.
All the court said was that, they cannot claim that it was Iran who laid those
mines although the court found that the US had been complaining against
Iran for mine laying in the area there.

REQUIREMENTS WHEN YOU PLEAD SELF-DEFENSE

1. You have to establish that s is really a defensive action
PRINCIPLES OF PREEMPTIVE ATTACK:
1. There must be imminent danger.
Imminent means inevitable. Preemptive means that before
you are damaged you destroy the capability of a prospective
attacker from being able to attack you. Before any actual act
of use of force has occurred, you are authorized to do it for as
long as there is imminent threat. Meaning to say, its
inevitable, it does not happen yet but it will happen unless
you do something to prevent it from happening. Please do
not forget the factor of inevitability because that is the key
factor in imminence.
2. That it is necessary and the force applied is proportional.
The issue of necessity, how do you then determine
necessity? Necessity of self-defense must be instant,
overwhelming, which leaves no state no choice or means for
deliberation but to use preemptive force. Meaning to say,
that there is no other option. The general measure of
proportionality is that, it must use the same degree or type of
force. If they use force, it must be proportional, you should
not do more damage than the force employed against you.
Theres another factor in necessity that you have to consider.
Why is it necessary and when is there the factor of necessity?
When? Under what circumstances does the right of selfdefense arise? Maam: Sit down (jig) and read all of you. I will
smoke.
Maam: So? Its not just talking about military and political
necessity. Were talking about anything that threatens the
very existence of a state. That is a legitimate interest that
will justify an act of self-defense. Now, the charter of the
UN prohibits the use of force, so what is the legality in
international law about preemptive strike? Customary
international law, it is inherent for every state to defend
itself from any attack (Art. 42 & 51). Art. 51 says, nothing
in the present charter shall impair the inherent right of
individual for collective self-defense. Meaning to say, it
can be interpreted as a recognition that it is inalienable
for a state to have the right to defend itself. But again, in
order for them to be a valid act of self-defense what are
the requirements? Imminent threat to the very existence
of the state, there is necessity and proportionality.

INTERNATIONAL CRIMINAL LAW

What is an International Criminal law? According to Nuremburg military
tribunal, it is an act that is universally recognized as criminal which is considered a
great matter of international concern. And for some valid reason, cannot be left
within the exclusive jurisdiction over the state that would have control over it under
ordinary circumstances. Criminal jurisdiction is generally territorial but it doesnt
mean that when we say territorial you only refer to the act that had been
committed within the territory. Territorial jurisdiction is also acquired when the effect
of an act occurs in another state, so there is still jurisdiction.
So in other words, you consider it as an international crime, those acts which
are generally, universally recognized as criminal in nature. According to one
International law writer, it includes all violations of law affecting those legal interest
in whose preservation humanity has general interest and for which criminal law
protection is provided by international law. So in other words, it must be something
that is internationally recognized as criminal in nature. What are the
requirements or the conditions in order that you can say that there is an
international recognition of an act as an international crime?
There must be a rule or norm recognizing the crime which have to emanate
directly from treaty. So it is an international crime when States, even just two
states, between the two of them it becomes an international crime or arising from
customary law. Like piracy, it is considered as hostis humanis. This is what we are
talking about, when we speak of international crime, it is the crime against
humanity ok? For it to be considered an international crime, it is required that there
should be numerous states who are parties in a convention like the Genocide
convention. Being an international crime, it can be prosecuted both in a domestic
court with criminal jurisdiction or by an international court. Not just international
court of justice but even special Genocide court di ba? Rwanda is one.
In order to preserve evidence, it is best to have it tried by an international
tribunal because then you cannot be buying off all of these people because they
came from any countries, several countries. Because we are talking about criminal
acts, what is the essential ingredient of a crime? Mala in se and Mala prohibita. Mala
in se is a crime that requires criminal intent. Mala prohibita is a crime that is
prohibited by law. What happens where there is conviction to a crime? Penalty
(Imprisonment and fines. When we speak of International criminal law, necessarily
there must be first of all attribution of a personal liability insofar as the criminal
aspect of the case is concerned. Because who will you put in prison? Its only a
human being. A state cannot commit a criminal act because a state is not a thinking
organism, its a collection. So when you speak of a crime in a general sense, of
course you speak of intent, a criminal intent. You cannot ascribe that. When you
speak of conviction for a crime, there is punishment which is imprisonment. Who
will you put in prison? But it doesnt mean that a state cannot be held also civilly
liable. Now, for the civil aspect of the criminal act, a state can also be held
criminally liable but only for the civil aspect i.e. damages, restitution or whatever.

Now, check the principles of international criminal law as adopted form the chapter
of Nuremburg trial.

NUREMBURG PRINCIPLES
( iSEARCH na lang sa online ang Nuremburg principles please kadtong sa Wikipedia
kay di maklaro sa recording ang gipangbasa nga principles).
Principle 1
Any person..
What is the Nuremburg trial, do you know?
Principle II
The fact..
Because of course the acts committed by Nazis was legal under German law
ok? Because it became a state policy to exterminate the Jews because they are
supposed to be defective people. And even the Catholic Church was guilty of closing
its eyes. Because their religious excuse was, these are Jesus killers so lets kill
them. The church did not have the balls at that time to say that it is wrong. Thats
why my idol, the Pope John Paul II, he stood up for what is right. He did not go into
the politics of Nazism. The wholesale extermination of the Jewish people is
considered a crime under international law.
Principle III
A person who committed an act.
Ajaw sa, ajaw sa pog paspasa ug basa kuan, kaya to sa pod nang discusson
one by one. Because most of them devils and what have you. These were generals,
these were secretaries of cabinet members, and these were the people who were
charged for example of experimenting on the use of the gas chamber. They use
Jewish people for scientific study. Even if you are a head of state or whatever you
are, it does not relieve you from responsibility for an international crime.
Principle IV
The fact that the person acted pursuant to the order of his government or the
superior does not relieve him from responsibility under international law. Provided,
the moral choice was in fact possible.
Ok, moral choice. What does it mean? Meaning to say, you actually were able
to have the opportunity to choose to disobey. For example, you are told, you go
and kill and Jews otherwise I will kill your family. Do you really have a moral
choice? NO, because either way people will get killed right? So in other words, if you

still had the freewill to choose to obey or not to commit an act which is an
international crime even upon the order of a superior officer, you still have the
choice and you will still be responsible.
Now, what about father (Harlem) for example. I will hold a gun in your head
and I will tell you to kill Jigjig or bisan kinsa na lamang. Jigjig: C Maricel na lamang.
Do you have a moral choice? Father Harlem: Im offering my life for Maricel (Ug
nanungog cla). Mirzi: wa diay kay principle of self-preservation dre?hehe. Maam:
For me, I think that is also correct. Its you as against the life of another, you have a
moral choice. But if it is, kill them or I will kill your family, for me thats not a moral
choice because its not you who gets killed. Thats why I dont drive a 4-wheel
vehicle because you can kill somebody. Magdrive na raman kog motorcycle kay
kung naa kay mabanggaan apil kag kamatay apil kag kaungad. Bitaw tinuod na,
mao nay aho, thats how I see it because its not you who will be killed in the
situation where you have no more choice.
You have a moral choice if the choice is between your life and anothers life.
Of course you are not going to turn your gun and kill yourself, you wait to be killed
ok? Because suicide also is not a morally acceptable act even by the laws of man
noh? So you wait til you get killed, you can say you can kill me if you like but I
wont. Ajaw pog ingong nga cge cge cge patja ko, imo pa jung galgalon, ajaw na
raman cgeg galgal kay basin pag mausob pod or magchange mind pod.

Principle V
Any person charged of a crime under international law has the right to a fair trial on
the facts and law.
What law are you talking about? Domestic law? It refers to International law.
Principle VI
The crimes hereinafter set out are punishable as crimes under international law.
Kinds of crimes not established under convention unlike Genocide:
a. Crimes against peace..
This is the Nuremburg trial. When they entered France, when they occupied
France, when they occupied Italy, they ransacked the houses and the castles
of the rich people there. Nazis are guilty of the acts enumerated under this
paragraph.
b. Crimes against humanity.
Extermination is actually what we called Genocide. The Roponggi of
Myanmar, the only Muslim people in Myanmar, they are the boat people. Mao
na, pareha ra gihapon, the same thing. Last week I think, Malaysian navy had
to rescue a boat load of Roponggi people, there were over 200 people dead,
only about 16 were rescued. Its very Asian for us not to expect ASEAN to do
something about that because us Asians naa man lagi tay kaikog. Its a crime
against humanity because Myanmar is destroying the people, a people called
the Roponggi ok? Why are we not doing something about it? It took a lady,

the foreign minister of Australia to speak to the ASEAN about the plight of
these people. Its a crime against humanity to deport them or enslave them.
What they are doing is they are being driven away from their homeland.