Case Study

Velasquez-Rodriguez v Honduras
(Merits; 29 July 1988; Series C No4)

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
familys 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 its 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.

Prosecutor v. Delalic
International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber
Case No. IT-96-21-A (2001)

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.

SUMMARY OF DECISION:

- The trial related to events which took place in 1992 in a prison camp near the town of elebii, in
central Bosnia and Herzegovina.
- The 4 accused, Zejnil Delali, Zdravko Muci, Hazim Deli, and Esad Lando, were charged with
numerous counts of grave breaches of the Geneva Conventions of 1949 under Article 2 of the
Tribunals Statute and of violations of the laws or customs of war under Article 3.
- The victims were the Bosnian Serb detainees in the elebii camp.
- Delali was alleged to have co-ordinated the activities of the Bosnian Muslim and Bosnian Croat
forces in the area and later to have been the Commander of the First Tactical Group of the Bosnian
Army. He was alleged in that capacity to have had authority over the elebii camp. He was found
not guilty on all counts, on the basis that he did not have sufficient command and control over the
elebii camp and its guards to found his criminal responsibility as a superior for the crimes which they
committed in the camp.
- Muci was found by the Trial Chamber to be the Commander of the elebii camp, and he was
found guilty under the principles of superior responsibility for crimes committed by his subordinates,
including murder, torture and inhuman treatment. He was also found guilty of personal responsibility
for the unlawful confinement of civilians.
- Deli was found by the Trial Chamber to have acted as the Deputy Commander of the camp, and he
was found guilty on the basis of personal responsibility for crimes including murder, torture and
inhuman treatment.
- Lando was found by the Trial Chamber to have been a guard at the camp, and he was found
guilty of committing offences including murder, torture and cruel treatment.

DISCUSSION
- The armed conflict in Bosnia and Herzegovina at the relevant time was international, as the Bosnian
Serb forces fighting in Bosnia and Herzegovina were under the control of the Federal Republic of
Yugoslavia. The prosecution established that the foreign intervening party was in overall control of the
local forces.
- For the purposes of Article 2 of the Statute, the victims were persons protected under the relevant
Geneva Convention. A person may be accorded protected person status, notwithstanding the fact that
he is of the same nationality as his captors. The nationality of the victims for the purpose of the
application of Geneva Convention IV should not be determined on the basis of formal national
characterisations, but that the nationality should take into account the differing ethnicities of the
victims and the perpetrators and their bonds with a foreign intervening State.
- Deli challenged the Tribunals jurisdiction to prosecute grave breaches of the Geneva Conventions
because, it was submitted, Bosnia and Herzegovina was not a party to the Conventions until after the
relevant events, having acceded to them subsequently. The Appeals Chamber held that Bosnia and
Herzegovina succeeded to the Geneva Conventions, with the effect that it is considered to be a party to the
treaty from the date of its succession or independence, which was prior to the relevant events. Even
without a formal act of succession, Bosnia and Herzegovina would automatically have succeeded to the
Geneva Conventions, as they are treaties of a universal multilateral character relating to fundamental
human rights.
- The appellants challenged the jurisdiction of the Tribunal to prosecute violations of Article 3
common to the Geneva Conventions under Article 3 of the Statute. The Appeals Chamber held that
the violations of the laws or customs of war which may fall within Article 3 of the Statute of the
Tribunal include violations of common Article 3, that these violations give rise to individual criminal
responsibility, and that they may be prosecuted whether committed in internal or international conflicts.
Command responsibility
- Muci was convicted for his superior authority as commander of the elebii camp for the crimes
committed there. He argued that command responsibility is limited to de jure commanders, or those
superiors with control over subordinates equivalent to such de jure authority. The Appeals Chamber
has rejected that argument, accepting that a position of de facto command may be sufficient to establish
the necessary superior-subordinate relationship, as long as the relevant degree of control over
subordinates is established. The relevant superior-subordinate relationship is established where the
superior has effective control over the persons committing the underlying violations of international
humanitarian law, in the sense of having the material ability to prevent or punish the commission of these
offences. Evidence was shown that Mucic exercised powers of control sufficient to constitute the exercise
of de facto authority over the camp.
- The prosecution appealed against the Trial Chambers interpretation of the requirement that a superior
knew or had reason to know that a subordinate is about to commit crimes or had done so. The
Appeals Chamber has concluded that the phrase reason to know" means that a superior will be
charged with knowledge of subordinates offences if information of a general nature was available to
him which would have put him on notice of those offences.
- The prosecution also contended that the ability of an accused to exercise forms of influence should
suffice to establish the relevant superior-subordinate relationship. The Appeals Chamber has concluded
that, whilst indirect as well as direct relationships of subordination will suffice, the relevant standard
of effective control over subordinates must be established, and that any forms of influence which fall
short of such control would not suffice.

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

FACTS:
A taxpayers 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 countrys 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 minors 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 come.

n re Yamashita
U.S. Supreme Court
327 U.S. 1, 13-16, 28, 34-35 (1946)

FACTS
After World War II, Japanese General Tomoyuki Yamashita was tried before a U.S. military
tribunal in Manilla for war crimes committed by troops under his command.
-U.S. claimed that D failed to discharge his duty as a commander to control the operations of the
members of his command, allowing them to commit brutal atrocities and other high crimes
against the U.S. and allies and was in violation of laws of war.
ISSUE
Does the law of war impose upon an army commander to take appropriate measures to control
his troops for prevention of violations of the law of war which are likely to attend occupation of
hostile territory, and whether he may be charged with personal responsibility for the failure to take
such measures when violations result?
HOLDING
There is an affirmative duty to take such measures as were in his power and appropriate in the
circumstances to protect prisoners of war and civilians.
DISCUSSION
Purpose of the law is to protect civilians and prisoners of war from brutality.
Fourth Hague Convention of 1907: Armed force must be commanded by a person responsible
for his subordinates.

Citation. I.C.J. 1970 I.C.J. 3.

Brief Fact Summary. Belgium (P) claimed Spain (D) should be held accountable
for the injury to a Canadian corporation operating in Spain.

Synopsis of Rule of Law. A state assumes an obligation concerning the

treatment of foreign investments based on general international law, once the
state admits foreign investments or foreign nationals into its territory.

Facts. On behalf of Belgian nationals (P) who had invested in a Canadian

corporation, Belgium (P) sued Spain (D) on the premise that Spain (D) was
responsible for acts in violation of international law that had caused injury to the
Canadian corporation and its Belgian shareholders (P).

Issue. Does a state assumes an obligation concerning the treatment of foreign

investments based on general international law, once the state admits foreign
investments or foreign nationals into its territory?

Held. Yes. A state assumes an obligation concerning the treatment of foreign

investments based on general international law, once the state admits foreign
investments or foreign nationals into its territory. It is highly imperative to draw a
distinction between those obligations of a state toward the international
community as a whole and those arising from the field of diplomatic protection. It
is only the party to whom an international obligation is due can bring a claim if a
breach of an obligation that is the subject of diplomatic protection occurs.

Discussion. The basic right of all human persons was mentioned by the Court to
be protected against slavery and racial discrimination as deriving from basic
general international law. Such rights may derive from international instruments
of a universal or quasi-universal character. Such obligations are obligations erga
omnes, that is, all states have a legal interest in their protection.

Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain)

Brief Fact Summary. An actions for damages against Spain (D) on the premise
that its nationals as shareholders of the Barcelona Traction Co., incorporated and
registered in Canada had been seriously harmed by Spains (D) actions resulting
in expropriation, was brought by Belgium (P).

Synopsis of Rule of Law. The state of the shareholders of a corporation has a

right of diplomatic protection only when the state whose responsibility is invoked
is the national state of the company.

Facts. The Barcelona Traction, Light, and Power Co, was incorporated and
registered in Canada for the purpose of developing and operating electrical
power in Spain (D). The company was declared bankrupt by a Spanish court
after the Spanish Civil War and its assets were seized. After the end of the
Canadian interposition, an action for damages against Spain (D) was brought by
Belgium (P) for what it termed expropriation of the assets of the traction Co. on
the ground that a large majority of the stock of the company was owned by
Belgian (P) nationals. Preliminary objections was raised by Spain (D) that the
plaintiff lacked standing to bring suit for damages to a Canadian company.

Issue. Does the state of the shareholders of a company have a right of

diplomatic protection if the state whose responsibility is invoked is not the
national state of the company?

Held. Does the state of the shareholders of a company have a right of diplomatic
protection if the state whose responsibility is invoked is not the national state of
the company?
Discussion. As stated in the Restatement of the Foreign Relations Law of the
United States S 185, failure of a state to pay just compensation for the taking of
the property of an alien is wrongful under international law, regardless of whether
the taking itself is conceived as wrongful. This wrongful taking is characterized
either as tortious conduct or as unjust enrichment.

NEER CLAIM

1CASE SUMMARY

Facts

In 1924, Paul Neer, an American citizen, was killed in Mexico by a group of

armed men. This claim was presented to the U.S.

Mexico General Claims Commission alleging that the Mexican authorities had
shown culpable lack of diligence in prosecuting the culprits.

Held

: The claim must be disallowed, since there was no evidence of such lack of
diligence as to constitute an international delinquency: the propriety of
governmental acts was decided according to international minimum standards,
and the treatment of an alien, in order to constitute an international delinquency,
should amount to an outrage, to bad faith, to willful neglect of duty, or to an
insufficiency of governmental action so far short of international standards that
every reasonable and impartial man would readily recognize its insufficiency, it
being immaterial whether the insufficiency proceeds from deficient execution of
an intelligent law or from the fact the laws of the country do not empower the
authorities to measure up to international standards.

Citation. I.C.J., 1949 1.C.J.4. UK v. Albania, Corfu Channel Case, (1949) ICJ
Rep

Brief Fact Summary. The right to send its warship through the straits used for
international navigations was the claim put forward by the United Kingdom (P).

Synopsis of Rule of Law. The geographical situation connecting two parts of the
high seas and not the fact of its being used for international navigation is the test
of whether a channel should be considered as belonging to the class of
international highways through which passage cannot be prohibited by a coastal
state in time of peace.

Facts. Albanian (D) forces fired at British warships (P) which were sailing though
the North Corfu Channel. The Albanian (D) government maintained that foreign
ships had no right to pass through Albanian territorial waters without prior
notification and permission from its authorities when the United Kingdom (P)
protested the actions of the Albanian (D) forces. The argument United Kingdom
(P) put forward was that states could send their ships for innocent purposes
through straits used for international navigation but the Albanian (D) refuted this
on the ground that the channel did not belong to the class f international
highways through which a right of passage exists because it was exclusively for
local traffic. This channel has also been a subject of territorial disputes between
Greece and Albania, though Albania was afraid of Greek incursions.

Issue. Can the geographical situation connecting two parts of the highs sea and
not the fact of its being used for the international navigation, be a test of whether
a channel can be considered as belonging to the class of international highways
through which passage cannot be prohibited by a coastal state in a time of
peace?

Held. Yes. The geographical situation connecting two parts of the high seas and
not the fact of its being used for international navigation is the test of whether a
channel should be considered as belonging to the class of international highways
through which passage cannot be prohibited by a coastal state in time of peace.
The North Corfu Channel can be categorized to the class of international
highways through which passage cannot be prohibited by a coastal state in time
of peace. If Albania had issued such regulation in light of the state of war with
Greece, then Albania would have been justified in issuing regulations in respect
of the passage of warships through the strait.

Discussion. In 1982, the U.N. Convention on the Law of the Sea was passed. It
stipulates that whether coastal or landlocked, states can enjoy the right of
innocent passage through territorial sea. But 12 nautical miles from the coast
was the maximum limit of which the territorial sea was held to exist.

CASE CONCERNING UNITED STATES DIPLOMATIC AND

CONSULAR STAFF IN TEHRAN
Judgment of 24 May 1980

Facts:
In November 4, 1974, student militants of the group Muslim Student Followers of
the Imam's Line barged into the US Embassy in Tehran and held US diplomats
and consulars hostage for 444 days. The cause of the Iranian students action
against the US was believed to be the latters grant of medical asylum to Shah
Mohammad Reza Pahlavi and its refusal to turn the Shah over for trial.

The US sought recourse before the international court, asking that the hostages
be freed and that reparations be given to the US by the Iranian government for
the latters failure to carry its international legal obligations. US averred that Iran
was responsible due to its initial inaction to the crisis and its subsequent
statement of support to the seizure.
Issue:
Whether or not Iran was liable to the United States for the seizure of the US
embassy and the hostage-taking of the US nationals by the Iranian militants.

he Diplomatic and Consular Staff Case (US v. Iran; ICJ 1980; p. 271)

Iran violated intl law (treaties and customary law) b/c it wouldnt return the
hostages from the Embassy unless the US sent the Shah back to Iran.

State successiontreaty of amity entered into in 55 by the Shah.

Muth: No question that Iran was bound by the treaty of amityKhomeni is not a
new state. Bringing this case may not have been wise.

Ct concedes that initial decision to attack was not state sanctioned (until later).

Nothing really to arguecase taken to ICJ to make a political point. Ct accepts

jurisdiction even tho both the ct and the US know Iran will not appear or abide by
any decision. N. 4, p. 286: The proper role of the courtshld it turn away when it
is being used? Is this a negative effect on the ICJs rep?

How does a ct operate effectively when states wont cooperate?

Ct makes note that US military incursion (helicopters sent by Carter to free

hostages) was inappropriate and undermined justice.

Another possible purpose of the ICJ: develop intl lawmaybe ok then.