LECTURES ON HUMAN RIGHTS 

COMPILED BY: ATTY. RAUL B. MARIFOSQUE

Definition of Human RightsHuman Rights refer to the “basic

rights and freedom that all human beings have.”

Human rights are universal legal guarantees protecting individuals and groups against actions by Governments that interfere with fundamental freedoms and human dignity. Human rights law obliges Governments to be responsible at all times for the protection of human rights

of all individuals and groups.

 

Why Are Human Rights Important?Every person benefits from human rights.

Human rights give people the freedom to choose how they wish to live, how they wish to express themselves, and what kind of government they want to support among many other things. Human rights also guarantee people the means necessary to satisfy their basic needs, such as food, housing, and education, so that they can take full advantage of all the opportunities available to them. Finally, human rights protect people against abuse by those who have more power, guaranteeing their life, liberty, and safety.

 

Principles of Human RightsUniversal human rights are often expressed

and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.

Universal and inalienableThe principle of universality of human rights is the cornerstone

of international human rights law. This principle, as first emphasized in the Universal Declaration of Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.        All States have ratified at least one, and 80% of States have ratified four or more, of the core human rights treaties, reflecting consent of States which creates legal obligations for them and giving concrete expression to universality. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations.

Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.

Indivisible and InterdependentAll human rights are indivisible, whether they

are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self- determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.

Equal and non- discriminatoryNon- discrimination is a cross- cutting principle in the

international human rights law. The principle is present in all the major human rights treaties.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non- exhaustive categories such as sex, race, color and so on. The principle of non- discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”

Both Rights and ObligationsHuman rights entail both rights and obligations.

Duty bearersStates assume obligations and duties under international

law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. Human rights obligations can also attach to private individuals, international organizations and other non- State actors. At the individual level, while each is entitled to human rights, one has general responsibilities towards the community at large and, at a minimum, must respect the human rights of others.

Nonetheless, the State remains the primary duty- bearer under international law, and cannot abrogate its duty to set in place and enforce an appropriate regulatory environment for private sector activities and responsibilities. National legislation and policies must detail how the State’s human rights and obligations will be discharged at national, provincial and local levels, and the extent to which individuals, companies, local government units, NGOs or other organs of society will directly shoulder responsibility for implementation.

Rights- holdersEvery individual is a rights- holder and

entitled to the same rights without distinction. To some extent groups are also entitled to human rights as a collective entity. Special attention should be paid to supporting members of groups subjected to discrimination, or suffering from disadvantage or exclusion, to claim their rights.

Examples of human rightsHuman rights include a broad range of guarantees, addressing virtually

every aspect of human life and human interaction, The rights guaranteed to all human beings include:

•Freedom of association, expression, assembly and movement•Right to life•Freedom from torture and cruel inhuman or degrading treatment or punishment•Freedom from arbitrary arrest or detention•Right to a fair trial•Freedom from discrimination•Right to equal protection of the law•Freedom from arbitrary interference with privacy, family, home or correspondence•Right to asylum•Right to nationality•Freedom from thought, conscience and religion•Right to vote and to take part in government•Right to just and favorable working conditions•Right to adequate food, shelter and clothing and social security•Right to health•Right to education•Right to participate in cultural life

Human Rights Standards and InstrumentsIn the human rights field, the most important tool to

consult in relation to domestic law is the treaty obligations incumbent on the State within whose jurisdiction they are working. A treaty is generally a legally binding, written agreement concluded between States but can also be agreement between for instance, the United Nations and a State for specific purposes. Treaties may go by different names such as convention, covenant, protocol or pact, but the legal effects thereof are the same. At the international level, a State establishes its consent to be bound by a treaty principally through ratification, a State establishes its consent to be bound by a treaty principally through ratification, acceptance, approval or accession, only exceptionally is the consent to be bound expressed by signature.

States should make sure that their national constitutions and laws are consistent with the international human rights regimes they are party to. Governments are enjoined to incorporate standards as contained in international human rights instruments in domestic legislation and to strengthen national structures, institutions and organs of society which play a role in promoting and safeguarding human rights.

Who Is Responsible For Upholding Human Rights? 

International human rights law describes the rights that people possess and also assigns responsibility for ensuring those rights, The government (State or State Party) are primarily responsible for protecting and promoting human rights. International human rights treaties are binding on States, who must then ensure that those human rights are protected in their countries. However, governments are not solely responsible for ensuring human rights. According to the Universal Declation 9of Human Rights (UDHR): 

“Every Individual and every organ of society ... shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.”

Where Do Human Rights Come From? 

The modern expression of human rights can be traced to struggles and end slavery, to guarantee the equal rights of women and minorities, and to protect people against oppression by their government. The atrocities of WWII catalyzed the world community to create the Universal Declaration of Human Rights (UDHR) to hold Governments accountable for the treatment of people within their territories. The UDHR was the first internati9onal document that spelled out “the basic civil, political, economic, social and cultural rights that all human beings should enjoy.” It was ratified by the General Assembly on December 10,1948. 

The U.S. played a leading role in the UDHR as chair of the Human Rights Commission and one of the eight nations charged with drafting the4 documents. The Declaration was not technically binding, though it is now recognized as customary international law. In order to give the human rights listed in the UDHR

For force of law, the UN drafted two covenants, the International Covenant on Civil and Political Rights (ICCPR) and the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR). The division of rights between these two covenants is artificial, a reflection of the global ideological divide during Cold War. Though politics prevented the creation of a unified treaty, the two covenants are of equal importance and the rights contained in one covenant are necessary to the fulfillment of the rights contained in the other. Together, the UDHR, ICCPR, and ICESCR are known as the International Bill of Rights. Contain a comprehensive list of human rights that governments must respect and promote.

Core international human rights treaties and standardsLegal bases for protection and promotion of human rights in

every member- state of the United Nations that have ratified these instruments include the:

•Universal Declaration of Human Rights (1948)•International Convention on the Elimination of All Forms of Racial Discrimination (1965)•International Covenant on Civil and Political Rights (1966)•International Covenant on Economic Social and Cultural Rights (1966)•Convention on the Elimination of Discrimination Against Women•Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (1984)•Convention on the Rights of the Child (1989)•International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families•International Convention for the Protection of All Persons from Enforced Disappearance (2006)

International human rights law and international humanitarian law (HL) are two distinct but complementary bodies of law. Both seek to protect the individual from arbitrary action and abuse. Human rights are inherent to the human being and protect the individual at all times, in war and in peace. International humanitarian law only applies in situations of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. Thus, in times of armed conflict international human rights law and international humanitarian law both apply in a complementary manner.

The Treaty bodiesThe international legal system, as outlined in the Charter of

the United Nations, is built around a community of States. It is the States themselves that make the rules, through the development of custom, the development of treaties and the development of international declarations, guidelines and bodies of principles. In the case of human rights, while it is individuals and groups who are protected, it is the conduct of States (and State actors) that is regulated.

The core international human rights treaties create legal obligations for State parties to promote and protect human rights at the national level. Implementation of these core human rights treaties is monitored by the respective human rights treaty- monitoring bodies composed of experts.

All treaty bodies are mandated to receive and consider reports submitted regularly by State parties detailing their implementation of the treaty provisions in the country concerned. They issue guidelines to assist States with the preparation of their reports, elaborate general comments interpreting the treaty provisions and organize discussions on theme related to the treaties. Some treaty bodies may consider complaints or communications from individuals alleging that their rights have been violated by a State party, provided the State has opted into this procedure. Some may also conduct inquiries.

Role of the human rights treaty system at the national levelThe internationally agreed standards set out in the treaties

require effective national- level implementation in order to ensure that they are enjoyed by all men, women and children in each country.

As the bodies established to oversee the implementation of the international human rights standards set out in the treaties, the treaty bodies have an important role in supporting efforts to strengthen the protection of human rights at the national level. Firstly, the process of reporting to the treaty bodies is itself an important part of the development of a human rights protection system. Secondly, the output of the treaty bodies provides States with practical advice and assistance on how best to implement the treaties.

The State’s obligationsIn addition to their obligation to implement the substantive

provisions of the treaty, each State party is also under an obligation to submit regular reports to the relevant treaty body on how the rights are being implemented.

State parties are encouraged to see the process of preparing their reports for the treaty bodies, not only as the fulfillment of an international obligation, but also as an opportunity to take stock of the state of human rights protection within their jurisdiction for the purpose of policy planning and implementation. The reporting system is an important tool for a State in assessing what has been achieved, and what more needs to be done, to promote and protect human rights. The reporting process should encourage and facilitate, at the national level, popular participation, public scrutiny of government policies and programs, and constructive engagement with civil society conducted in a spirit of cooperation and mutual respect, with the aim of advancing the enjoyment by all of the rights protected by the relevant conventions.

Related domestic lawsAt the national level, these international human rights

instruments are implemented by way of domestic laws and policy measures. Some of which are:

•1987 Philippine Constitution- Article II: Declaration of Principles and State Policies and•Article III: Bill of Rights•Republic Act No. 9851- An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, Organizing Jurisdiction, Designating Special Courts, and for Related Purposes•Republic Act No. 9745- An Act Penalizing Torture and Other Cruel Inhuman and Degrading Treatment or Punishment and Prescribing Penalties Therefor

•Republic Act No. 7438- An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of Arresting, Detaining and Investigating Officers, and Providing Penalties for Violations Thereof•Republic Act No. 9372- An Act to Secure the State and Protect our People from Terrorism•Republic Act No. 6981- An Act Providing for a Witness Protection, Security and Benefit Program and for Other Purposes• Republic Act No. 7309- An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for the Other Purposes Human Rights

Themes International Human Rights Treaties Ratified by the Philippines

Philippine National Laws and Policy Measures

Promoting Economic and Social

Rights

•International Covenant on Economic Social and Cultural Rights•International Humanitarian Law (Geneva Conventions)•Convention on the Rights of Persons with Disabilities

International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families

•1987 Philippine Constitution Migrant Workers Act (RA 8402 and 10022)•Social Reform and Poverty Alleviation Act (RA 8425)•DOH Sentrong Sigla and Fourmula One (Health Sector Agenda)•Philippine AIDS Prevention and Control Act of 1998 (RA 8504)

Urban Development and Housing Act of 1992 (UDHA)

Promoting Civil and Political Rights

•International Covenant on Civil and Political Rights (ICCPR)•First Optional Protocol to the ICCPR•Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

International Convention for the Protection of All Persons from Enforced Disappearance (ICED)

•1987 Philippine Constitution•Philippine Act on Crimes Against International Humanitarian Law, Genocide, and the Other Crimes Against Humanity (RA 9851)•The Anti- Torture Act of 2009 (RA 9745)•An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining, and Investigating Officers, and Providing Penalties for Violations Thereof (RA 7438)

•Human Security Act 2007 (RA 9372)•Speedy Trial Act (RA 8493)•Witness Protection, Security and Benefit Act (RA 6981)•The Local Government Code (RA 7160)•An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for Other Purposes (RA 6981)•Law on the Abolition of the Death Penalty 2006•Writ of Habeas Corpus•Writ of Amparo

Writ of Habeas Data m

Advancement of Gender Equality and Women’s Rights

•Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)•Optional Protocol to CEDAW•Palermo Protocol•International Convention to the Protection and Rights of All Migrant Workers and Their Families

UNESCO Convention Against Discrimination in

Education

•Women in Nation Building Act (RA 7192)•Anti- Trafficking in Persons Act 2003 (RA 9208)•Anti- Violence Against Women and their Children Act of 2004 (RA 9262)•Magna Carta of Women (RA 9710)•The Family Code of the Philippines•Code of Muslim Personal Laws•Shariah Laws•Philippine Plan for Gender Responsive Development 1995- 2025

Empowerment of the Indigenous Peoples and Sustainable Environments

•UN Declaration on the Rights of Indigenous Peoples•International Convention on the Elimination of All Forms of Racial Discrimination•International Covenant on Economic, Social and Cultural Rights

UNESCO Convention Against Discrimination in Education

•Code of Muslim Personal Laws•Shariah Laws•Indigenous People’s Rights Act 1997 (IPRA)

SYSTEMATIC AND GROSS HUMAN RIGHTS VIOLATIONS 

OverviewViolations of human rights may affect individuals or they can be large-

scale in nature, indicating a poor human rights situation in a given State. They may be isolated occurrences or systematic. It is thus necessary to distinguish between individual human rights violations may be perpetrated with varying degrees of complicity on the part of the State, or by private individuals or groups acting against the wishes of the authorities.

According to the conclusions of the Maastricht Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, which took place in March 1992, “the notion of gross violations of human rights and fundamental freedoms includes at least the following practices: genocide, slavery and slavery- like practices, summary or arbitrary executions, torture, disappearances, arbitrary and prolonged detention, and systematic discrimination”. The conclusions state further “violations of other human rights, including violations of economic, social and cultural rights, may also be gross and systematic in scope and nature, and must consequently be given all due attention in connection with the right to reparation.”

 

Gross human rights violations 

GenocideActs committed with intent to destroy, in whole or in part, a

national, ethnic, racial or religious group. It includes: a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; and e) forcibly transferring children of the group to another group. Torture

Any act committed with intent to cause severe pain or suffering, mental or physical, for the purpose of: a) obtaining information or a confession; and b) punishing, intimidating or coercing.

Arbitrary arrest and detentionDeprivation of liberty without lawful reason or due

process by an act of the Government of its agents, or with their complicity, tolerance of acquiescence. 

Enforced or involuntary disappearanceArrest, detention, abduction or other deprivation of

liberty by the Government or its agents, or with their complicity, tolerance of acquiescence, where the fate or whereabouts of the victim is not disclosed or custody is not confirmed.

ED AND ELK DEFINITIONS USED BY THE PHILIPPINE GOVERNMENT

Rule on the Writ of Amparo: Annotation, p. 48 http://sc.judiciary.gov.ph/Annotation_amparo.pdf

Enforced disappearances are attended by the following characteristics: an arrest, detention or the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.

Sec. 3(g) or R.A. No. 9851: An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, Organizing Jurisdiction, Designating Special Courts, and For Related Purposes

“Enforced or involuntary disappearance of persons” means the arrest, detention, or abduction of persons by, or with the authorization support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time DOJ Dept. Order No. 841 dated 10 October 2007

Cases of extra- judicial killings shall refer to those cases where the suspects or perpetrators are members of the military, police and other law enforcement agencies.

A.O. No. 25- 2007 Designation of Special Courts to Hear, Try and Decide Cases Involbing Killings of Political Activists and Members of Media (took effect on 1 March 2007; revoked on 4 October 2007 following the SC issuance of the Writ of Amparo) 

In determining whether the crime is a “political killing”, the following factors, among others, shall be considered: 1) political affiliation of the victim; 2) method of attack; and 3) reports that state agents are involved in the commission of the crime or have acquiesced in them.

Rule on the Writ of Amparo: Annotation, p. 48 http://sc.judiciary.gov.ph/Annotation_amparo.pdf

Extralegal killings are killings committed without due process of law, i.e. without legal

safeguards or judicial proceedings. As such, these will include the illegal taking of life regardless of the

motive, summary and arbitrary executions, salvaging even of the suspected criminals, and

threats to take the life of persons who are openly critical of erring government.

 Extralegal, arbitrary or summary executions

Deprivation of life without full judicial and legal process, and with the involvement, complicity, tolerance or acquiescence of the Government or its

agents. Includes death through the excessive use of force by police or security forces.

As cited by Professor Philip Alston, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (15 October 2009), “the international law definition of extrajudicial execution... encompasses any killing by Government forces as well as killings by any other groups or individuals which the Government fails to investigate, prosecute and punish when it is in a position to do so.”

The visit of Alston to the Philippines was prompted by reports of a large number of extrajudicial killings, especially of leftist activists and journalists, since 2001. Alston noted that counter- insurgency strategy and recent changes in the priorities of the criminal justice system are of special importance to understanding why the killings continue.

Some of his recommendations to the Philippines, from the 2007 visit and follow- up reports in 2009, included the following:

•Extrajudicial executions must be eliminated from counterinsurgency operations.•The use of a death squad in Davao City must end.•Convictions in a significant number of extrajudicial executions must be achieved. Appropriate institutional arrangements exist but they must be more transparent if they are to be effective.•Inter- agency Legal Affairs Group (IALAG) should be abolished, and the criminal justice system should refocus on investigating and prosecuting those committing extrajudicial executions and other serious crimes.•The witness protection programme should be reformed and fully implemented.

•The Supreme Court should take all available measures to ensure the effective prosecution of extrajudicial executions.•Human rights should be safeguarded within the peace processes.•The Commission on Human Rights (CHR) should guard its independence and increase its effectiveness.•The Ombudsman’s office should begin to fulfill effectively its independent constitutional role in responding to extrajudicial killings plausibly attributed to public officials.•The Government should reinstate a policy of facilitating the constitutionally- mandated role of Congressional oversight in relation to the AFP and the PNP, starting by rescinding all directives, memoranda, and orders that impede such oversight.The CPP/ NPA/ NDF should repudiate statements that persons owe “blood debts”, have “accountabilities to the people”, or are subject to prosecution before people’s courts.

Situation of extralegal killings and enforced disappearances in the Philippines

There is still disparity in the number of killings and disappearances recorded by civil society organizations and those acknowledged as such by the Government. Even with Executive Order 181, designed to encourage intra- governmental cooperation, the Government has failed to reconcile the number of confirmed cases of extrajudicial killings between its own agencies, including the Supreme Court, PNP Task Force Usig and DOJ Task Force 211. Both websites of Task Force 211 and Task Force Usig are no l0onger updated or accessible to the public.

Although the number of extrajudicial executions of members of civil society organizations has diminished, too many cases continue to be reported and far too little accountability has been achieved by the perpetrators. The justice system has been distorted and it has increasingly focused on prosecuting civil sociely leaders rather than their killers.

Journalists are killed with increasing frequency as a result of the prevailing impunity as well as the structure of the media industry. Disputes between peasants and landowners, as well armed groups, lead to killings in the context of agrarian reform efforts, and the police often provide inadequate protection to the peasants involved. A death squad operated in Davao City, with armed persons routinely killing street children and others in broad daylight. While human rights abused related to conflicts in Western Mindanao and the Sulu archipelago have received less attentiona than those related to the conflict with the communist insurgency serious abuses clearly do occur, and improved monitoring mechanisms are necessary.

Figures and particulars of documented ELK and ED cases vary. However the fact that ELKs and Eds continue is undisputed and alarming for any democratic state.

DOCUMENTED CASES OF EXTRA JUDICIAL KILLINGSSINCE 30 JULY – OCTOBER 2010

NO.

Month Place Affiliation Status

1 July Tabuk, Kalinga

Radio commentator and local newspaper correspondent

 

2 July Kalibo, Aklan

Town councilor and Provincial

Coordinator of a Party List

Murder charges against primary

suspect filed before the Provincial

Prosecutor’s Office

3 July Palanan, Masbate

Teacher and member of an

alliance for teachers

 

4 July Laur, Nueva Ecija

Farmer and member of a Party

List

No suspects so far

5 July Nabua, Camarines

Sur

Local radio broadcaster

Pending investigation

6 July Barangay Malibas, Palanas

Teacher and member of a Party

List

Pending investigation

7 July Masbate City

Teacher and member of a Party

List

Pending investigation

8 July Masbate City

Member of a Party List

Pending investigation

9 August Cabanatuan City, Nueva Ecija

Publisher and editor of local newspaper

Pending investigation

10

August Davao City

Farmer  

11

August Balangiga Eastern Samar

Member of a Party List

 

12

August Toboso, Negros

Occidental

AFP Sergeant According to the military, NPA is

accountable

13

September

Davao City Farmer and member of an activist group

Suspect declared

14

September

Malinawon, Mawab

Member of a Party List

 

15

September

Boundary of Brgy. Mapuyo

and Brgy. Mabuhay

Farmer and member of activist

groups

Elements of the Philippine Army

16

September

Boundary of Brgy. Mapuyo

and Brgy. Mabuhay

Farmer and member of activist

groups

Elements of the Philippine Army

17 Boundary of Brgy. Mapuyo and Brgy. Mabuhay

Farmer and member of activist groups

Elements of the Philippine Army

18 Boundary of Brgy. Mapuyo and Brgy. Mabuhay

Student and member of activist groups

Elements of the Philippine Army

19 Guihulngan Negros Occidental

Local chairperson of a local chapter of an activist group

Elements of the Philippine Army

COMBATING IMPUNITY Overview

Impunity means the impossibility of bringing the perpetrators of violations to accounts- whether in criminal, civil administrative or disciplinary proceedings- since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making repatriations to their victims.

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the areas of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevents a recurrence of violations.

Impunity for human rights violations is one of the most serious threats to the full enjoyment of the rights and freedoms of the individual, and constitutes a violation of a state’s legal duty to ensure the effective protection of these rights and freedoms. A culture of impunity also widens a gap between those close to the power structures and others, who are vulnerable to human rights abuses. Various Philippine Human Development Reports since 2005 (UNDP) noted that ongoing poverty and armed conflicts in the country are rooted in social exclusion and injustice.

Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity

The United Nations provides for a set of principles for the protection and promotion of human rights through action to combat impunity. Topical contents are cited in each of the four rights to combat impunity: The Right to Know, The Right to Justice, The Right to Reparation, and Guarantees of Non- Recurrence of Violations.

The Right to KnowGeneral Principles        The alienable right to truth  The duty to preserve memory        The victim’s right to know        Guarantees to give effect to the right to know Commission of Inquiry

•The establishment and role of truth commissions•Guarantees of independence, impartiality and competence•Definition of a commission’s terms of reference•Guarantees for persons implicated •Guarantees for victims and witnesses testifying on their behalf•Adequate resources for commissions•Advisory functions of the commissions•Publicizing the commission’s reports

Preservation and access to archives bearing witness to violationsMeasures for the preservation of archivesMeasures for facilitating access to archivesCooperation between archive departments and the courts and non- judicial commissions of inquirySpecific measures relating to archives containing namesSpecific measures related to the restoration of or transition to democracy and/ or peace The Right to JusticeGeneral PrinciplesDuties of States with regard to the administration of justice Distribution of Jurisdiction between national, foreign, international and internationalized courtsJurisdiction of international and internationalized criminal tribunalsMeasures for strengthening the effectiveness of international legal

principles concerning universal and international jurisdiction

 Restrictions on rules of law justified by action to combat impunity

•Nature of restrictive measures•Restriction on prescription•Restriction and other measures relating to amnesty•Restrictions on the right of asylum•Restrictions on extrajudicial/ non bis in idem•Restrictions on justifications related to due obedience, superior responsibility and official status•Restrictions on the effects of legislation on disclosure or repentance•Restrictions on the jurisdiction of military courtsRestrictions on the principle of the irremovability of judges

 

The Right to Reparation

•Rights and duties arising out of the obligation to make reparation•Reparation procedures•Publicizing reparation procedures•Scope of the right to reparation 

Guarantees of Non- recurrence of Violations

•General principles•Reform of State institutions•Disbandment of parastatal armed forces/ demobilization and social reintegration of children and other displaced groups•Reform of laws and institutions contributing to impunity

The Swiss Framework in Combating ImpunityDealing with the past is one important aspect of the peacebuilding

agenda. Its ultimate goal is to contribute to reconciliation, the rule of law, to avoid impunity and to guarantee the non- repetition of the violent past with massive and systematic human rights violations and abuses committed during an armed conflict and/ or authoritarian repressive political regime. 

Practice- oriented peace research institute swisspeace affirms that a holistic Dealing with the Past approach consists of:        The Right to Know

•The Right to Reparation•The Right to Justice•The Guarantee of Non- Recurrence

In its daily work swisspeace often refers to this conceptual framework, for instance for the design of Dealing with the Past programs, for actor and issue mapping and, most importantly to constantly bear in mind that Dealing with the Past endeavors must be addressed as a whole- holistically,

Furthermore, in application of generally accepted best practices and aware of the UN Secretary General Report from August 2004, The Rule of Law and Transitional Justice in Conflict and Post- Conflict, swisspeace promotes that:

Every country must identify within international and national legal obligations (related to amnesty debates for instance) its own Dealing with the Past agenda; lessons learnt from other contexts are important, but they should never automatically be replicated in other countries with a specific history, culture, language, religion, traditions;

Each Dealing with the Past program should be based on a sound conflict analysis and its entry- point, whereby it is important to recognize the profile, causes, actors and dynamics of a conflict;Dealing with the Past initiatives must be conflict sensitive, which means that Dealing with the Past programs should at least be conscious of the relations between a program and its environment, avoid negative impacts and maximize positive impacts;Without a conductive environment, such as a certain degree of safety, security and stability, Dealing with the Past initiatives can become questionable; allegations in front of a Truth and Reconciliation Commission, for instance, require that people feel free and safe to express their opinions, views, experiences and

allegations;

•It is generally important to be aware of an adequate sequence and timing for different initiatives, bearing in mind that they are all, individually, pieces of a larger picture- a holistic approach- and that Dealing with the Past is a long- term process that usually lasts for generations;•Dealing with the Past should be mindful and promote the inclusion of women, children and other traditionally discriminated and marginalized representatives of society such as indigenous groups, poor people or citizens of remote areas; therefore Dealing with the Past should give a voice to the voiceless in societies;

•The International Community can- and often must- play an important role in Dealing with the Past, but it can only be complementary and subsidiary to national state and non- state initiatives; an alignment to the national agenda and a sound coordination are helpful in this regard;•Whereas it might appear rather convenient to include Dealing with the Past initiatives in peace agreements or new constitutions, the implementation, including the costs, of Dealing with the Past programs are often neglected and incomplete, if not inexistent; therefore, national and international actors should pay attention to follow- ups and implementation of Dealing with the Past endeavors.

 

The Guatemalan Experience in Combating Impunity

ContextIllegal security forces and clandestine organizations have

progressively intimidated social, political, and business leaders, human rights activists, justice operators, journalists and social communicators with total impunity without being investigated. There are claims of how these illegal forces have been rooted inside public institutions to control and dominate them.

It was reported that Chiantla Police Sheriff was murdered in Guatemala City when he was making a claim to the Professional Responsibility Office of the Civil Police about organized gang inside the force. To date, the perpetrator of this crime has not been known, and the investigation is still pending. In 2006, hooded men murdered the Governor of Solola who was leaving a Governor’s meeting in Guatemala City. To date, there is no evidence of the perpetrators of this crime, although it was well- known that the Governor was fighting against child pornography and drug trafficking in his Department.

DescriptionThe International Commission against Impunity in

Guatemala (CICIG) aims to support the fight against impunity in Guatemala and to support the justice system, especially the Public Prosecutors Office(Ministerio Publico) in the investigation of illegal and clandestine groups that act against the population and weaken the justice system. It emerges from an Agreement signed between the Government of Guatemala and the Office of the General Secretary of United Nations by request of the Government of Guatemala. All the members of this Commission are international experts chosen for their individual capacities, their experience and professional rigor. The administrative staff and professional consultants may be Guatemalan citizends. CICIG is an international organ sponsored by the United Nations though a trust fund which will be determined by the Office of the General Secretary of the United Nations and is financed by voluntary donations and the international community.

Rationale for an ‘international status’An international commission with members from foreign

countries will guaranty total independence and objectivity, since they will not have business of any type in Guatemala, nor relatives that may be intimidated or threatened since CICIG will be financed by the international cooperation with the support of the United Nations, it will not depend on the country’s budget changes.

Specific ObjectivesThe mandate of CICIG states the following objectives:

•To give support, strengthen and cooperate with the institutions of Guatemala in charge of the investigation and criminal prosecution of suspicion of activities by illegal security forces and clandestine security operations; as well as the determination of its structures, activities, forms of operations and financing sources, promoting the dismantling of such organizations as well as the criminal sanction of participants in the committed crimes.To create mechanisms and necessary procedures, as may be necessary for the protection of the right to life and personal integrity of citizens.

For such purpose, an International Commission is created to fight against impunity in Guatemala, in accordance to the regulations contained in the Agreement, to the commitments the State has signed in national and international instruments, and especially in accordance to the Comprehensive agreement on Human Rights, sections IV paragraph 1 and VII, paragraph 3.

CharacteristicsCICIG has three (3) fundamental characteristics;

•It is an international organ sponsored by the United Nations, its legal framework is the Agreement which contains its creation, signed between the Government of Guatemala and the United Nations Organization, in the framework of human rights and in compliance to the Peace Agreements. The commission is an autonomous institution and will begin its existence after the agreement is ratified by the Guatemalan Congress, and is published in the respective Legislative Decree. With this, CICIG will have the legal authorization and capacity to operate in the country.It is a commission with a specific mandate: to support the justice system in Guatemala through the investigation of the illegal security forces and clandestine groups, and to give consulting to the Government and the Justice System for the dismantling of such forces.

•At the moment in which CICIG detects a commission of a crime by members of illegal security forces or clandestine organizations, the respective legal complaint is made to the Special Prosecution Office, to coordinate the investigation in the cooperation with CICIG. The criminal action will be responsibility of the Special Prosecution office, as established by law. CICIG may be constituted as a Plaintiff (Querellante Adhesivo) that adheres to the State’s prosecution, a legal figure established in the Criminal Prosecution Code. The criminal process will be ruled by the Constitution and related laws.

 

ChallengesThere are always people who oppose necessary changes in

Guatemala, who are interested in keeping the justice system weak to benefit from impunity, and to promote their own economic or political interests. The arguments against are old and worn out, such as the argument of a false nationalism, which opposes to anything that is international although it is good and necessary for the country.

Another argument used is its unconstitutionality, without any basis. However, by means of legal resources, some will try to delay its approval. Some will say that Guatemala’s problems must be solved by Guatemalans within their own legal system. But this argument does not acknowledge the weakness of the system, and the prevailing impunity in the country and without acknowledging that CICIG, after ratification of Congress will be constituted as a national body in the framework of the Constitution.