PEOPLE OF THE PHILIPPINES vs.

ANDRE MARTI (193 SCRA 57) Case Digest

Facts:

On August 14, 1987, the appellant and his common-law wife, Shirley Reyes went to Manila Packaging
and Export Forwarders to send packages to Zurich, Switzerland. It was received by Anita Reyes and ask
if she could inspect the packages. Shirley refused and eventually convinced Anita to seal the package
making it ready for shipment. Before being sent out for delivery, Job Reyes, husband of Anita and
proprietor of the courier company, conducted an inspection of the package as part of standard operating
procedures. Upon opening the package, he noticed a suspicious odor which made him took sample of the
substance he found inside. He reported this to the NBI and invited agents to his office to inspect the
package. In the presence of the NBI agents, Job Reyes opened the suspicious package and found dried-
marijuana leaves inside. A case was filed against Andre Marti in violation of R.A. 6425 and was found
guilty by the court a quo. Andre filed an appeal in the Supreme Court claiming that his constitutional right
of privacy was violated and that the evidence acquired from his package was inadmissible as evidence
against him.

Issue:

Can the Constitutional Right of Privacy be enforced against private individuals?

Ruling:

The Supreme Court held based on the speech of Commissioner Bernas that the Bill of Rights governs the
relationship between the individual and the state.

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint
directed only against the government and its agencies tasked with the enforcement of the law. It is not
meant to be invoked against acts of private individuals. It will be recalled that Mr Job Reyes was the one
who opened the box in the presence of the NBI agents in his place of business. The mere presence of the
NBI agents did not convert the reasonable search effected by Mr. Reyes into a warrantless search and
siezure proscribed by the constitution. Merely to observe and look at that which is in plain sight is not a
search.

The judgement of conviction finding appeallant guilty beyond reasonable doubt of the crime charged was
AFFIRMED.

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND

GENEROSO OCAMPO vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS
JOHN DOES
J. Vitug

FACTS:

The case all started when a "Demolition Notice," signed by Carlos Quimpo in his capacity as an Executive Officer
of the Quezon City Integrated Hawkers Management Council under the Office of the City Mayor, was sent to, and
received by, the private respondents (being the officers and members of the North EDSA Vendors Association,
Incorporated). In said notice, the respondents were given a grace-period of three (3) days within which to vacate the
questioned premises of North EDSA. 1 Prior to their receipt of the demolition notice, the private respondents were
informed by petitioner Quimpo that their stalls should be removed to give way to the "People's Park"

The group, led by their President Roque Fermo, filed a letter-complaint with the CHR against the petitioners, asking
the late CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor Brigido Simon, Jr., of
Quezon City to stop the demolition of the private respondents' stalls, sari-sari stores, and carinderia along North
EDSA.

CHR issued an Order, directing the petitioners "to desist from demolishing the stalls and shanties at North EDSA
pending resolution of the vendors/squatters' complaint before the Commission" and ordering said petitioners to
appear before the CHR

On the basis of the sworn statements submitted by the private respondents, as well as CHR's own ocular inspection,
CHR ordered the disbursement of financial assistance of not more than P200,000.00 in favor of the private
respondents to purchase light housing materials and food under the Commission's supervision and again directed the
petitioners to "desist from further demolition, with the warning that violation of said order would lead to a citation
for contempt and arrest.

A motion to dismiss which questioned CHR's jurisdiction and averred that City Mayor of Quezon City (had) the sole
and exclusive discretion and authority whether or not a certain business establishment (should) be allowed to operate
within the jurisdiction of Quezon City, to revoke or cancel a permit, if already issued, upon grounds clearly specified
by law and ordinance was filed.

petitioners moved for postponement, arguing that the motion to dismiss had yet to be resolved. The petitioners
likewise manifested that they would bring the case to the courts.

a supplemental motion to dismiss was filed by the petitioners, stating that the Commission's authority should be
understood as being confined only to the investigation of violations of civil and political rights, and that "the rights
allegedly violated in this case (were) not civil and political rights, (but) their privilege to engage in business."

the motion to dismiss was heard and submitted for resolution, along with the contempt charge that had meantime
been filed by the private respondents, albeit vigorously objected to by petitioners (on the ground that the motion to
dismiss was still then unresolved).

CHR cited the petitioners in contempt for carrying out the demolition of the stalls, sari-sari stores and carinderia
despite the "order to desist", and it imposed a fine of P500.00 on each of them.

CHR issued an Order, denying petitioners' motion to dismiss and supplemental motion to dismiss, in this wise:

Clearly, the Commission on Human Rights under its constitutional mandate had jurisdiction over the complaint filed
by the squatters-vendors who complained of the gross violations of their human and constitutional rights. The
motion to dismiss should be and is hereby DENIED for lack of merit. 13

The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a paper tiger
limited only to investigating civil and political rights, but it (should) be (considered) a quasi-judicial body with the
power to provide appropriate legal measures for the protection of human rights of all persons within the Philippines .
. . ." It added:

The right to earn a living is a right essential to one's right to development, to life and to dignity. All these brazenly
and violently ignored and trampled upon by respondents with little regard at the same time for the basic rights of
women and children, and their health, safety and welfare. Their actions have psychologically scarred and
traumatized the children, who were witness and exposed to such a violent demonstration of Man's inhumanity to
man.

MR was denied.

ISSUES:

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private respondents whose stalls were
demolished by the petitioners at the instance and authority given by the Mayor of Quezon City;

b) to impose the fine of P500.00 each on the petitioners; and

c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.

HELD:
the writ prayed for in this petition is GRANTED. The Commission on Human Rights is hereby prohibited from
further proceeding with CHR Case No. 90-1580 and from implementing the P500.00 fine for contempt. The
temporary restraining order heretofore issued by this Court is made permanent

The Commission on Human Rights was created by the 1987 Constitution. 19 It was formally constituted by then
President Corazon Aquino via Executive Order No. 163, 20 issued on 5 May 1987, in the exercise of her legislative
power at the time. It succeeded, but so superseded as well, the Presidential Committee on Human Rights

CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial
body. 23 This view, however, has not heretofore been shared by this Court. In Cariño v. Commission on Human
Rights, 24 the Court, through then Associate Justice, now Chief Justice Andres Narvasa, has observed that it is "only
the first of the enumerated powers and functions that bears any resemblance to adjudication or adjudgment," but that
resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained:

. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be another court or quasi-
judicial agency in this country, or duplicate much less take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e.,
receive evidence and make findings of fact as regards claimed human rights violations involving civil and political
rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence
and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and
definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the
Commission does not have.

What then is the extent of CHR's power?

It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to define it, albeit not a
few have tried, could at best be described as inconclusive.

MR. GARCIA. Actually, these civil and political rights have been made clear in the language of human rights
advocates, as well as in the Universal Declaration of Human Rights which addresses a number of articles on the
right to life, the right against torture, the right to fair and public hearing, and so on. These are very specific rights
that are considered enshrined in many international documents and legal instruments as constituting civil and
political rights, and these are precisely what we want to defend here.

MR. BENGZON. So, would the commissioner say civil and political rights as defined in the Universal Declaration
of Human Rights?

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and Political Rights distinguished
this right against torture.

x---x

MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really trying to say is, perhaps,
at the proper time we could specify all those rights stated in the Universal Declaration of Human Rights and defined
as human rights. Those are the rights that we envision here?

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution. They are integral parts
of that.

MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of Rights covered by human
rights?

MR. GARCIA. No, only those that pertain to civil and political rights.

x---x

MR. GARCIA. I would like to continue and respond also to repeated points raised by the previous speaker.

There are actually six areas where this Commission on Human Rights could act effectively: 1) protection of rights of
political detainees; 2) treatment of prisoners and the prevention of tortures; 3) fair and public trials; 4) cases of
disappearances; 5) salvagings and hamletting; and 6) other crimes committed against the religious.

MR. GARCIA. Madam President, I have to repeat the various specific civil and political rights that we felt must be
envisioned initially by this provision — freedom from political detention and arrest prevention of torture, right to
fair and public trials, as well as crimes involving disappearance, salvagings, hamlettings and collective violations.
So, it is limited to politically related crimes precisely to protect the civil and political rights of a specific group of
individuals, and therefore, we are not opening it up to all of the definite areas.

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer linking his concept or the
concept of the Committee on Human Rights with the so-called civil or political rights as contained in the Universal
Declaration of Human Rights.

MR. GUINGONA. Madam President, I am not even clear as to the distinction between civil and social rights.

MR. GARCIA. There are two international covenants: the International Covenant and Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights. The second covenant contains all the different
rights-the rights of labor to organize, the right to education, housing, shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of the committee to those that the Gentlemen has
specified.

MR. GARCIA. Yes, to civil and political rights.

The term "civil rights," 31 has been defined as referring —

(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to all its inhabitants, and are
not connected with the organization or administration of the government. They include the rights of property,
marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil rights are rights
appertaining to a person by virtue of his citizenship in a state or community. Such term may also refer, in its general
sense, to rights capable of being enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious persecution, unreasonable
searches and seizures, and imprisonment for debt. 32

Political rights, 33 on the other hand, are said to refer to the right to participate, directly or indirectly, in the
establishment or administration of government, the right of suffrage, the right to hold public office, the right of
petition and, in general, the rights appurtenant to citizenship vis-a-vis the management of government.

APPLYING THE PRINCIPLES TO THE CASE AT HAND:

In the particular case at hand, there is no cavil that what are sought to be demolished are the stalls, sari-sari stores
and carinderia, as well as temporary shanties, erected by private respondents on a land which is planned to be
developed into a "People's Park". More than that, the land adjoins the North EDSA of Quezon City which, this Court
can take judicial notice of, is a busy national highway. The consequent danger to life and limb is not thus to be
likewise simply ignored. It is indeed paradoxical that a right which is claimed to have been violated is one that
cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the standards
hereinabove discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude that
the order for the demolition of the stalls, sari-sari stores and carinderia of the private respondents can fall within the
compartment of "human rights violations involving civil and political rights" intended by the Constitution.

On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the
CHR acted within its authority in providing in its revised rules, its power "to cite or hold any person in direct or
indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided
for in the Rules of Court." That power to cite for contempt, however, should be understood to apply only to
violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial
powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate
with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in
pursuing its investigative work. The "order to desist" (a semantic interplay for a restraining order) in the instance
before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not
possess. In Export Processing Zone Authority vs. Commission on Human Rights, 36 the Court, speaking through
Madame Justice Carolina Griño-Aquino, explained:

The constitutional provision directing the CHR to "provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need protection" may not be construed to confer
jurisdiction on the Commission to issue a restraining order or writ of injunction for, it that were the intention, the
Constitution would have expressly said so. "Jurisdiction is conferred only by the Constitution or by law". It is never
derived by implication.

Evidently, the "preventive measures and legal aid services" mentioned in the Constitution refer to extrajudicial and
judicial remedies (including a writ of preliminary injunction) which the CHR may seek from proper courts on behalf
of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the
writ, for a writ of preliminary injunction may only be issued "by the judge of any court in which the action is
pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. . . . A writ of
preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation
or protection of the rights and interests of a party thereto, and for no other purpose."

The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to
any appropriate agency of government
The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to the vendors
affected by the demolition is not an appropriate issue in the instant petition. Not only is there lack of locus standi on
the part of the petitioners to question the disbursement but, more importantly, the matter lies with the appropriate
administrative agencies concerned to initially consider.

The public respondent explains that this petition for prohibition filed by the petitioners has become moot and
academic since the case before it (CHR Case No. 90-1580) has already been fully heard, and that the matter is
merely awaiting final resolution. It is true that prohibition is a preventive remedy to restrain the doing of an act
about to be done, and not intended to provide a remedy for an act already accomplished. 38 Here, however, said
Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-1580. The instant petition has been
intended, among other things, to also prevent CHR from precisely doing that

Velasquez-Rodriguez v Honduras

Facts:

- Angel Manfredo Velasquez Rodriguez disappeared from downtown Tegulcigalpa in

Honduras;
- He was seized by 7 armed men in civilian clothing, who abducted him in an unlicensed
car on 12 September 1981, and never seen again;
- Police and security forces denied involvement; the courts would not hear the family’s
case;
- The Honduras government, which was a military dictatorship at the time, refused to
cooperate with the Commission when the family filed a petition;
- When the dictator was ousted, Honduras asked for more time to conduct an
investigation. However, when granted the extra time, all it produced was a 4 sentence
report stating that there was no evidence connecting the military to the disappearance.

Decision:

- The Inter-American Convention does not expressly prohibit forced disappearances.

- However, the practice is a violation of several articles of the Convention:
(1) Article 1 – duty to guarantee rights;
(2) Article 4 – right to life (clandestine execution without trial, clandestine burial);
(3) Art 5 – right to personal integrity (prolonged isolation and imprisonment;
incommunicado detention);
(4) Art 7 – right to personal liberty (arbitrary deprivation of liberty; infringement of the
right to be taken before a judge to review the legality of arrest).
- Forced disappearances also constitute a violation of something more than individual
articles because it shows a crass abandonment of the principle of human dignity and the
values of the Inter-American system and the Convention.
Main Legal Issues:

(1) Can the disappearance be the responsibility of the State even if committed by private
persons; if so, in what circumstances? (Art 1.1 – State obligations);
(2) Burden and standard of proof in disappearance cases;
(3) Compensation/redress in disappearance cases;
(4) Exhaustion of local remedies.

Legal reasoning:

(1) State obligation: The Court found government agents responsible directly for the
abduction of Mr Velasquez. But, it said that even if the government was not directly
liable, it would still be liable for the violations found because of its breach of Article 1.1.
If the kidnapping had been carried out by private persons, the government would be
liable because:
o Art 1.1 requires state parties to “ensure” rights guaranteed by the Convention;
o “ensure” means that the State is required to organize its “government
apparatus” and all structures through which public power is exercised to ensure
free and full enjoyment of human rights;
o the State must prevent, investigate and punish and violation of those rights; and,
if possible, attempt to restore violated rights and provide compensation;
o an act violating human rights which is not directly imputable to a State initially
will lead to State responsibility not because of the act itself, but because of the
lack of due diligence to prevent or to respond to the violation;
o duty to investigate is not a duty to achieve results, but rather to “seriously
investigate.”

(2) Burden and standard of proof:

o Burden: The initial burden will fall upon the Commission to show an “official
practice of disappearances” carried out or tolerated by the government and that
in the instant case the disappearance can be linked to that practice.
o The burden will then shift to the government, in that it will be up to the State to
show what happened to the disappeared person, and that it was not related to
any such official practice.
o The reversal of the burden is justified because: the State “cannot rely on the
defence that the complainant has failed to present evidence when it cannot be
obtained without State co-operation” (para 135); and the State controls the
means to verify acts occurring within its territory.
o Standard: Court dodged the question of standard, other than establishing that
it’s not as high as “beyond reasonable doubt.” There is no rigid rule;
international law requires the Court to apply a standard commensurate with the
seriousness of the case. The standard cannot be as high as criminal, because the
proceedings before the Court are not criminal proceedings – the main objective
is to protect human rights, not punish for violations.
 (3) Compensation/redress: (para 189; Article 63(1));
o In the instant case, no redress to the victim can be made and his rights cannot be
restored or compensation paid;
o But the Court can still order that the consequences of the breach be remedied
and just compensation paid to the next-of-kin of the victim.

(4) Exhaustion of local remedies:

o The government submitted a brief prepared by the Honduran Bar Association
identifying legal remedies available in cases of disappearance of persons (ie.
Appeal, cassation, criminal complaint, habeas corpus).
o It alleged that the Applicants have not exhausted them.
o Commission: the remedies identified were ineffective. Three writs of habeas
corpus had been filed by the family of the victim, and they achieved nothing.
There was a widespread practice of intimidation of judges and lawyers, and of
police ignoring judicial decisions.
o If the State alleges non-exhaustion of domestic remedies, it must show remedies
that could have been utilized and the opposing party must either show that it
exhausted them or that it comes within the exceptions of Art 46(2) (see para 58).
o Para 64 onwards: the Court held that if a remedy is ineffective, it needs not be
exhausted.
o Of the remedies cited by the government, only habeas corpus was relevant to
finding a disappeared person; but if it requires stating the place of detention, it is
ineffective in the case of a clandestine disappearance.
o The legal remedies identified were available only in theory, rather than in
practice, because the imprisonment was clandestine and formal requirements
made them inapplicable in practice; authorities against whom they were brought
simply ignored them; and the attorneys and judges were threatened by the
authorities.
o Remedies must be more than mere formalities before they are required to be
exhausted.

Grossman: The case contributed to the end of the systematic practice of disappearances; challenged
the pervasive culture of impunity and deniability; and was the first case in an international tribunal to
declare the practice of forced disappearances illegal.
NICARAGUA VS UNITED STATES (SUMMARY) ON SELF
DEFENCE AND USE OF FORCE

Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua vs United States) (Merits: focusing on matters relating to the use of force and self-
defence)

Year of Decision: 1986

Court: ICJ

NB: This blog post will discuss matters on the use of force and self-defence. If you would like to
read about the impact of the Nicaragua judgement on customary international law and the US
multilateral reservation please click here.

Overview: The case involved military and paramilitary activities conducted by the United States
against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities
violated international law.

Facts of the Case:

In July 1979 the Government of President Somoza collapsed following an armed opposition led
by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government – installed by
FSLN – began to meet armed opposition from supporters of the former Somoza Government
and ex-members of the National Guard. The US – initially supportive of the new government –
changed its attitude when, according to the United States, it found that Nicaragua was
providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it
terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the
United States “decided to plan and undertake activities directed against Nicaragua”.

The armed opposition to the new Government was conducted mainly by

(1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras,
and (2)Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa
Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan
Government (called “contras”) was covert. Later, the United States officially acknowledged its
support (for example: In 1983 budgetary legislation enacted by the United States Congress
made specific provision for funds to be used by United States intelligence agencies for
supporting “directly or indirectly military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics and that they were paid for and directly
controlled by United States personal. Nicaragua also alleged that some attacks were carried out
by United States military – with the aim to overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil
installations and a naval base. Nicaragua alleged that aircrafts belonging to the United
States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field
and to intimidate the population.

The United States did not appear before the ICJ at the merit stages, after refusing to accept the
ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing,
however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51
of the UN Charter by “providing, upon request, proportionate and appropriate assistance…” to
Costa Rica, Honduras and El Salvador in response to Nicaragua’s alleged acts aggression
against those countries (paras. 126, 128).

Questions before the Court:

 Did the United States breach its customary international law obligation – not to intervene
in the affairs of another State – when it trained, armed, equipped and financed the
contra forces or encouraged, supported and aided the military and paramilitary activities
against Nicaragua?

 Did the United States breach its customary international law obligation – not to use force
against another State – when it directly attacked Nicaragua in 1983 – 1984 and when its
activities in bullet point 1 above resulted in the use of force?

 If so, can the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defence?

 Did the United States breach its customary international law obligation – not to violate
the sovereignty of another State – when it directed or authorized its aircrafts to fly over
Nicaraguan territory and by acts referred to in bullet point 2 above?

 Did the United States breach its customary international law obligations – not to violate
the sovereignty of another State, not to intervene in its affairs, not to use force against
another State and not to interrupt peaceful maritime commerce – when it laid mines in
the internal waters and the territorial sea of Nicaragua?
ICJ decision: The United States violated customary international law in relation to bullet points
1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on
collective self-defence to justify its use of force against Nicaragua.

Relevant Findings of the Court:

1. The court held that the United States breached its customary international law obligation –
not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984;
and (2) when its activities with the contra forces resulted in the threat or use of force (see
paras 187 -201).

The Court held that:

 The prohibition on the use of force is found in Article 2(4) of the UN Charter and in
customary international law.

 In a controversial finding the court sub-classified the use of force as: (1) the “most
grave forms of the use of force” (i.e. those that constitute an armed attack) and (2) the
“less grave form” (i.e. organizing, instigating, assisting or participating in acts of civil
strife and terrorist acts in another State – when the acts referred to involve a threat or
use of force not amounting to an armed attack).

 The United States violated the customary international law prohibition on the use of
force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked
Nicaraguan ports, oil installations and a naval base (see below). The United States could
justify its action on collective self-defence, if certain criteria were met – this aspect is
discussed below.

 The United States violated the customary international law prohibition on the use of
force when it assisted the contras by “organizing or encouraging the organization of
irregular forces and armed bands… for incursion into the territory of another state” and
participated “in acts of civil strife…in another State” when these acts involved the threat
or use of force.

 The supply of funds to the contras did not violate the prohibition on the use of force.
Nicaragua argued that the timing of the offensives against it was determined by the
United States: i.e. an offensive could not be launched until the requisite funds were
available. The Court held that “…it does not follow that each provision of funds by the
United States was made to set in motion a particular offensive, and that that offensive
 was planned by the United States.” The Court held further that while the arming and
training of the contras involved the threat or use of force against Nicaragua, the supply
of funds, in it self, only amounted to an act of intervention in the internal affairs of
Nicaragua (para 227) – this aspect is discussed below.

What is an armed attack?

 A controversial but interesting aspect of the Court’s judgement was its definition of an
armed attack. The Court held that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount to (inter
alia) an actual armed attack conducted by regular forces, or its (the State’s)
substantial involvement therein”

NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on
the Definition of Aggression.

 Mere frontier incidents are not considered as an armed attack – unless because of its
scale and effects it would have been classified as an armed attack if it was carried out by
regular forces.

 Assistance to rebels in the form of provision of weapons or logistical support did not
constitute an armed attack – it can be regarded as a threat or use of force, or an
intervention in the internal or external affairs of other States (see paras 195, 230).

 Under Article 51 of the UN Charter and under CIL – self-defence is only available against
a use of force that amounts to an armed attack (para 211).

NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal
Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter
called the Palestine wall case) the ICJ upheld the definition of “armed attack” proposed in the
Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self
defence originated from non-State actors. However, the Court held that Article 51′s inherent
right of self defence was available to one State only against another State (para 139). Judges
Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility,
prepared by the International Law Commission, provided significant guidance as to when acts
of non-State actors may be attributed to States. These articles, together with recent State
practice relating attacks on terrorists operating from other countries (see legal opinions
surrounding the United States attack on Afghanistan), may have widened the scope of an armed
attack, and consequently, the right of self defence, envisaged by the ICJ.

2. The Court held that the United States could not justify its military and paramilitary activities
on the basis of collective self-defence.

 Customary international law allows for exceptions to the prohibition on the use of force
– including the right to individual or collective self-defence (for a difference between the
two forms of self defence, click here). The United States, at an earlier stage of the
proceedings, had asserted that the Charter itself acknowledges the existence of this
customary international law right when it talks of the “inherent” right of a State under
Article 51 of the Charter (para.193).

 When a State claims that it used force in collective self-defence, the Court would look
into two aspects:

(1) whether the circumstances required for the exercise of self-defence existed and

(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the
requirements of international law (i.e. did it comply with the principles of necessity and
proportionality).

 Several criteria must be met for a State to exercise the right of individual or collective
self-defence:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an
armed attack took place nor not is done by the state who was subjected to the attack. A third
State cannot exercise a right of collective self-defence based its (the third State’s) own
assessment]; and

(3) In the case of collective self-defence – the victim State must request for assistance (“there is
no rule permitting the exercise of collective self-defence in the absence of a request by the
State which regards itself as the victim of an armed attack”).
(4) The State does not, under customary international law, have the same obligation as under
Article 51 of the UN Charter to report to the Security Council that an armed attack happened –
but “the absence of a report may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence” (see below).

“At this point, the Court may consider whether in customary international law there is any
requirement corresponding to that found in the treaty law of the United Nations Charter, by
which the State claiming to use the right of individual or collective self-defence must report to
an international body, empowered to determine the conformity with international law of the
measures which the State is seeking to justify on that basis. Thus Article 51 of the United
Nations Charter requires that measures taken by States in exercise of this right of self-defence
must be “immediately reported” to the Security Council. As the Court has observed above
(paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary
international law, may well be so unencumbered with the conditions and modalities
surrounding it in the treaty. Whatever influence the Charter may have had on customary
international law in these matters, it is clear that in customary international law it is not a
condition of the lawfulness of the use of force in self-defence that a procedure so closely
dependent on the content of a treaty commitment and of the institutions established by it,
should have been followed. On the other hand, if self-defence is advanced as a justification for
measures which would otherwise be in breach both of the principle of customary international
law and of that contained in the Charter, it is to be expected that the conditions of the Charter
should be respected. Thus for the purpose of enquiry into the customary law position, the
absence of a report may be one of the factors indicating whether the State in question was itself
convinced that it was acting in self-defence (See paras 200, 232 -236)”.

 The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and
Honduras in determining whether an armed attack was undertaken by Nicaragua against
the three countries – which in turn would necessitate self-defence (paras 230 - 236).
The Court referred to statements made by El Salvador, Costa Rica, Honduras and the
United States before the Security Council. None of the countries who were allegedly
subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed
attack or request assistance from the United States in self-defence – at the time when
the United States was allegedly acting in collective self-defence; and (2) the United
States did not claim that it was acting under Article 51 of the UN Charter and it did not
report that it was so acting to the Security Council. The Court concluded that the United
States cannot justify its use of force as collective self-defence.
  The criteria with regard to necessity and proportionality, that is necessary when using
force in self-defence – was also not fulfilled (para 237).

3. The Court held that the United States breached its CIL obligation – not to intervene in the
affairs of another State – when it trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary activities against Nicaragua.

 The principle of non- intervention means that every State has a right to conduct its
affairs without outside interference – i.e it “…forbids States or groups of States to
intervene directly or indirectly in internal or external affairs of other States.” . This is a
corollary of the principle of sovereign equality of States.

A prohibited intervention must accordingly be one bearing on matters in which each State is
permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such choices, which
must remain free ones. The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the case of an intervention which
uses force, either in the direct form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State (para 205).

 Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua and to substantially damage the economy and weaken the
political system to coerce the Government of Nicaragua to accept various political
demands of the United States. The Court held:

“…first, that the United States intended, by its support of the contras, to coerce the
Government of Nicaragua in respect of matters in which each State is permitted, by the
principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that
the intention of the contras themselves was to overthrow the present Government of
Nicaragua… The Court considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State whose purpose is to
overthrow the government of that State, that amounts to an intervention by the one State in the
internal affairs of the other, whether or not the political objective of the State giving such
support and assistance is equally far reaching.”

 The financial support, training, supply of weapons, intelligence and logistic support
given by the United States to the contras was a breach of the principle of non-
 interference. “…no such general right of intervention, in support of an opposition within
another State, exists in contemporary international law”, even if such a request for
assistance is made by an opposition group of that State (see para 246 for more).

 However, in a controversial finding, the Court held that the United States did not devise
the strategy, direct the tactics of the contras or exercise control on them in manner so
as to make their acts committed in violation of international law imputable to the United
States (see in this respect “Determining US responsibility for contra operations under
international law” 81 AMJIL 86).T he Court concluded that “a number of military and
paramilitary operations of the contras were decided and planned, if not actually by
United States advisers, then at least in close collaboration with them, and on the basis of
the intelligence and logistic support which the United States was able to offer,
particularly the supply aircraft provided to the contras by the United States” but not all
contra operations reflected strategy and tactics wholly devised by the United States.

“In sum, the evidence available to the Court indicates that the various forms of assistance
provided to the contras by the United States have been crucial to the pursuit of their activities,
but is insufficient to demonstrate their complete dependence on United States aid. On the other
hand, it indicates that in the initial years of United States assistance the contra force was so
dependent. However, whether the United States Government at any stage devised the strategy
and directed the tactics of the contras depends on the extent to which the United States made
use of the potential for control inherent in that dependence. The Court already indicated that it
has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that
the contra force may be equated for legal purposes with the forces of the United States…The
Court has taken the view (paragraph 110 above) that United States participation, even if
preponderant or decisive, in the financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the evidence in the possession of the
Court, for the purpose of attributing to the United States the acts committed by the contras in
the course of their military or paramilitary operations in Nicaragua. All the forms of United
States participation mentioned above, and even the general control by the respondent State
over a force with a high degree of dependency on it, would not in themselves mean, without
further evidence, that the United States directed or enforced the perpetration of the acts
contrary to human rights and humanitarian law alleged by the applicant State. Such acts could
well be committed by members of the contras without the control of the United States. For this
conduct to give rise to legal responsibility of the United States, it would in principle have to be
proved that that State had effective control of the military or paramilitary.”
  Interesting, however, the Court also held that providing “…humanitarian aid to persons
or forces in another country, whatever their political affiliations or objectives, cannot be
regarded as unlawful intervention, or as in any other way contrary to international law”
(para 242).

 In the event one State intervenes in the affairs of another State, the victim State has a
right to intervene in a manner that is short of an armed attack (210).

“While an armed attack would give rise to an entitlement to collective self-defence, a use of
force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1
above). produce any entitlement to take collective countermeasures involving the use of force.
The acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could only have justified proportionate counter-measures on the part
of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa
Rica. They could not justify counter-measures taken by a third State, the United States, and
particularly could not justify intervention involving the use of force.”

4. The United States breached its customary international law obligation – not to violate the
sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan
territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.

 The ICJ examined evidence and found that in early 1984 mines were laid in or close to
ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or
acting ion the instructions” of the United States and acting under its supervision with its
logistical support. The United States did not issue any warning on the location or
existence of mines and this resulted in injuries and increases in maritime insurance
rates.

 The court found that the United States also carried out high-altitude reconnaissance
flights over Nicaraguan territory and certain low-altitude flights, complained of as
causing sonic booms.

 The basic concept of State sovereignty in customary international law is found in

Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters,
its territorial sea and the air space above its territory. The United States violated
customary international law when it laid mines in the territorial sea and internal
waters of Nicaragua and when it carried out unauthorised overflights over
 Nicaraguan airspace by aircrafts that belong to or was under the control of the
United States.

Material on the Nicaragua case

The following contains a list of scholarly articles and other material that discuss the Nicaragua
case. If you would like to add to the list, please note your suggestions in the comment box.

The judgment including separate opinions of individual judges and summaries of the judgment
and orders

The World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson. Christenson argues
that an independent development of the customary law right divorced from the treaty can have
wider consequences:

We have then a double irony. The Court uses the United States position accepting the treaty
norm against the threat or use of force also as a customary norm possibly having jus cogens
quality, in part, to justify taking jurisdiction as a matter quite independent of the norm that
otherwise falls under the multilateral treaty reservation. Since there are two separate sources of
the law, the choice of the one source rather than the other means that the norm relied upon
survives the jurisdictional bar to the use of the other. Yet the two norms are not different
enough to undermine completely the content of the Charter norm. This formalism simply masks
the more interesting question of the Court’s institutional claim, given the ineffectiveness of the
UN Security system, to develop an international public order case by case, by breaking away
form the strictures of the Charter and treaty norms. The Court untied the treaty norms from
their constraints within the United Nations or regional collective security systems, a potentially
destabilizing decision, one whose consequences are unforeseen. The decision based on the
validity of an autonomous norm of customary international law free from the Charter is a
constitutive one of potential great significance (81 AMJIL 100, 1987).
Prosecutor v. Delalic

Facts

In 1992, during conflict in the Balkans, Bosnian and Croat forces took over
villages in Bosnia and Herzegovina, detaining prisoners in the village of Celebici,
where the forces subjected them to torture and cruel treatment. In response to
these mass atrocities, the United Nations Security Council created the first
international criminal tribunal, the International Criminal Tribunal for the former
Yugoslavia (ICTY). In 1993, four members of the Bosnian and Croat forces
involved in the abuses at Celebici (defendants) were brought to trial before the
ICTY. The Trial Chamber determined that three out of the four defendants were
guilty of various breaches of the Geneva Conventions for acts of killing, torture,
and sexual abuse of the Celebici detainees. The Trial Chamber also made
numerous findings, including that a Military Investigative Commission was
established to review detentions, but that it did not meet the requirements of the
Geneva Convention, and that the detained civilians did not possess weapons or
participate in political activity. The Trial Chamber concluded that the confinement
of civilians during armed conflict may be authorized in limited circumstances, but
is unlawful if the detaining power is not in compliance with Article 42 of Geneva
Convention IV. The four defendants, along with the prosecution, appealed the
decision, as well as the conclusion that some of the civilians were illegally
detained.

Walker v. State Case Brief

Facts: Defendant Walker was convicted of breaking and entering a corncrib belonging to Noadiah
Woodruff and Robert Peeples, to secret away corn in April or My 1878.
Issue: Does the use of an instrument or tool, which crosses the plane of the threshold constitute the
necessary element of entry?
Holding: The instrument was used not only to break, but to effect the entry so as to commit the
larceny of the corn within, and therefor the crime of breaking and entering is complete.
Court Rationale: When the defendant caused the instrument to intrude into the crib the burglar
acquired dominion over the corn he was stealing. When the auger was withdrawn there was
breaking and entering with criminal intent.

Oposa vs Factoran
Natural and Environmental Laws; Constitutional Law: Intergenerational Responsibility
GR No. 101083; July 30 1993

FACTS:
A taxpayer’s class suit was filed by minors Juan Antonio Oposa, et al., representing their
generation and generations yet unborn, and represented by their parents against Fulgencio
Factoran Jr., Secretary of DENR. They prayed that judgment be rendered ordering the
defendant, his agents, representatives and other persons acting in his behalf to:

1. Cancel all existing Timber Licensing Agreements (TLA) in the country;

2. Cease and desist from receiving, accepting, processing, renewing, or appraising new
TLAs;

and granting the plaintiffs “such other reliefs just and equitable under the premises.” They
alleged that they have a clear and constitutional right to a balanced and healthful ecology
and are entitled to protection by the State in its capacity as parens patriae. Furthermore,
they claim that the act of the defendant in allowing TLA holders to cut and deforest the
remaining forests constitutes a misappropriation and/or impairment of the natural
resources property he holds in trust for the benefit of the plaintiff minors and succeeding
generations.
The defendant filed a motion to dismiss the complaint on the following grounds:

1. Plaintiffs have no cause of action against him;

2. The issues raised by the plaintiffs is a political question which properly pertains to
the legislative or executive branches of the government.

ISSUE:
Do the petitioner-minors have a cause of action in filing a class suit to “prevent the
misappropriation or impairment of Philippine rainforests?”

HELD:
Yes. Petitioner-minors assert that they represent their generation as well as generations to
come. The Supreme Court ruled that they can, for themselves, for others of their generation,
and for the succeeding generation, file a class suit. Their personality to sue in behalf of
succeeding generations is based on the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned. Such a right considers the
“rhythm and harmony of nature” which indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country’s forest,
mineral, land, waters, fisheries, wildlife, offshore areas and other natural resources to the
end that their exploration, development, and utilization be equitably accessible to the
present as well as the future generations.
Needless to say, every generation has a responsibility to the next to preserve that rhythm
and harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minor’s assertion of their right to a sound environment constitutes at the
same time, the performance of their obligation to ensure the protection of that right for the
generations to com

In re Yamashita

Facts:

General Tomoyuki Yamashita is the Commanding General of the Japanese Imperial Army. When he
surrendered in 1945, an American military commission tried him on charges that he permitted atrocities
against both civilians and prisoners of war, in violation of the law of war.

The bills of particulars, filed by the prosecution by order of the commission, allege a series of
123 acts, committed by members of the forces under petitioner's command.

The first item specifies the execution of a 'a deliberate plan and purpose to massacre and
exterminate a large part of the civilian population of Batangas Province, and to devastate and
destroy public, private and religious property therein, as a result of which more than 25,000 men,
women and children, all unarmed noncombatant civilians, were brutally mistreated and killed,
without cause or trial, and entire settlements were devastated and destroyed wantonly and without
military necessity.' Other items specify acts of violence, cruelty and homicide inflicted upon the
civilian population and prisoners of war, acts of wholesale pillage and the wanton destruction of
religious monuments.

It is not denied that such acts directed against the civilian population of an occupied country and
against prisoners of war are recognized in international law as violations of the law of war under
Fourth Hague Convention. But it is urged t at the charge does not allege that petitioner has either
committed or directed the commission of such acts, and consequently that no violation is charged
as against him. But this overlooks the fact that the gist of the charge is an unlawful breach of
duty by petitioner as an army commander to control the operations of the members of his
command by 'permitting them to commit' the extensive and widespread atrocities specified.

The question then is whether the law of war imposes on an army commander a duty to take such
appropriate measures as are within his power to control the troops under his command for the
prevention of the specified acts which are violations of the law of war and which are likely to
attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be
charged with personal responsibility for his failure to take such measures when violations result.
That this was the precise issue to be tried was made clear by the statement of the prosecution at
the opening of the trial.

Issue:

Yamashita’s counsel applied leave to file petitions for writs of habeas corpus and prohibition,
challenging the jurisdiction and legal authority of the commission.

Held:

The writs were DENIED.

The court found that Congress had legally authorized the commission's establishment under the war
powers, and that the charge was adequate to state a violation of the law of war.

It is evident that the conduct of military operations by troops whose excesses are unrestrained by the
orders or efforts of their commander would almost certainly result in violations which it is the purpose
of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from
brutality would largely be defeated if the commander of an invading army could with impunity neglect
to take reasonable measures for their protection. Hence the law of war presupposes that its violation is
to be avoided through the control of the operations of war by commanders who are to some extent
responsible for their subordinates.

Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, is
the doctrine of hierarchical accountability in cases of war crimes. The doctrine was established by the
Hague Conventions IV (1907) and X (1907).

The "Yamashita standard" is based upon the precedent set by the United States Supreme Court in the
case of Japanese General Tomoyuki Yamashita. He was prosecuted, in a still controversial trial, for
atrocities committed by troops under his command in the Philippines. Yamashita was charged with
"unlawfully disregarding and failing to discharge his duty as a commander to control the acts of
members of his command by permitting them to commit war crimes."

The "Medina standard" is based upon the prosecution of US Army Captain Ernest Medina in
connection with the My Lai Massacre during the Vietnam War. It holds that a commanding
officer, being aware of a human rights violation or a war crime, will be held criminally liable
when he does not take action. (Medina was, however, acquitted of all charges.)