DIGESTS IN PUBLIC INTERNATIONAL LAW \\ D2016
Sources of International Law – Cases on Jurisdiction and Immunities – Sovereign Immunities
Ex Parte Pinochet (1999)
FACTS (Lord Browne-Wilkinson):
 September 11, 1973: A right-wing coup, led by a military junta,
which was then led by Senator (then General) Pinochet, evicted the
left-wing regime of President Allende.
 The Pinochet regime remained in power until March 11, 1990,
when Senator Pinochet resigned.
o During Senator Pinochet’s regime and committed in Chile and
elsewhere in the world: Torture, murder, and unexplained
disappearance of individuals, all on a large scale
 It is alleged that the acts were done in pursuance of a
conspiracy, which Senator Pichet was a party of, at his
instigation and with his knowledge. Denied by Pinochet
 As a whole, the picture presented is of a conspiracy to
commit widespread and systematic torture and murder in
order to obtain control of the government and, having
done so, to maintain control of government by those
means for as long as might be necessary
 None of the conduct alleged was committed by or against
citizens of the UK or in the UK.
 1998: Senator Pinochet came to the UK for medical treatment.
 The judicial authorities in Spain sought to extradite him to stand trial in
Spain on a large number of charges.
o Some of those charges had links with Spain, but most charges had
no connection with Spain.
 House of Lords’ job: To decide on 2 questions of law (1) Are there
any extradition crimes; and (2) if so, is Senator Pinochet immune from
trial for committing those crimes.
 October 16, 1998: An international warrant for Senator Pinochet’s
arrest was issued in Spain. Also, a London magistrate issued a
provisional warrant (1st warrant) under the Extradition Act of 1989,
Sec. 8.
 October 17, 1998: Senator Pinochet was arrested in a London hospital.
 October 18, 1998: Spanish authorities issued a 2nd international
warrant.
 October 22, 1998: A further provisional warrant (2nd warrant) was
issued by the Bow Street Magistrates Court.
 Senator Pinochet started proceedings for habeas corpus and for leave
to move for judicial review of both the 1st and the 2nd provisional
warrants.
 October 22, 1998: The Divisional Court quashed both warrants.
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o Divisional Court’s grounds on quashing the 2nd warrant: That
Senator Pinochet (as former head of state) was entitled to state
immunity concerning the acts charged.
o It held that in order to be an extradition crime, it was not necessary
that the conduct should be criminal at the date of the conduct relied
upon, but only at the date of request for extradition.
 The Crown Prosecution Service (on behalf of the Government of
Spain) appealed to the House of Lords.
o The Divisional Court certified the point of law of general
importance as "the proper interpretation and scope of the
immunity enjoyed by a former head of state from arrest and
extradition proceedings in the United Kingdom in respect of acts
committed while he was head of state."
 November 4, 1998: The Spanish government submitted a formal
Request for Extradition, which greatly expanded the list of crimes
alleged in the 2nd provisional warrant to allege a widespread
conspiracy to take over the Government of Chile by a coup and,
thereafter, to reduce the country to submission by committing
genocide, murder, torture, and the taking of hostages, such conduct
taking place primarily in Chile, but also elsewhere.
 Judgment was given by the Committee in the House of Lords,
wherein the appeal was allowed by majority because Senator
Pinochet was not entitled to immunity in relation to crimes under
international law.
o That judgment of the House was later set aside because the
Committee was not properly constituted.
 The appeal came on again for rehearing before the Lords in this
case.
o The Home Secretary had issued to the magistrate authority to
proceed under the Extradition Act of 1989, Sec. 7 (to permit the
extradition to Spain).
o The Republic of Chile applied to intervene as a party. Leave
given
 Up to this point, Chile had been urging that immunity should be
afforded to Senator Pinochet, but it now wished to be joined as
a party.
 Any immunity precluding criminal charges against Senator
Pinochet is the immunity not of Senator Pinochet, but of
the Republic of Chile.
 The ambit of the charges against Senator Pinochet again
widened: Chile put in further particulars of the charges which
they wished to advance.
  Summary of charges:
 Charges 1, 2, and 5: Conspiracy to torture between
January 1, 1972 and September 20, 1973 and
between August 1, 1973 and January 1, 1990;
 Charge 3: Conspiracy to take hostages between
August 1, 1973 and January 1, 1990;
 Charge 4: Conspiracy to torture, in furtherance of
which murder was committed in various countries,
including Italy, France, Spain and Portugal,
between January 1, 1972 and January 1, 1990;
 Charges 6 and 8: Torture between August 1, 1973
and August 8, 1973 and on September 11, 1973;
 Charges 9 and 12: Conspiracy to murder in Spain
between January 1, 1975 and December 31, 1976
and in Italy on October 6, 1975;
 Charges 10 and 11: Attempted murder in Italy on
October 6, 1975;
 Charges 13-29 and 31-32: Torture on various
occasions between September 11, 1973 and May
1977; and
 Charge 30: Torture on June 24, 1989.
ISSUES + RULING:
Does the definition of an "extradition crime" in the Extradition Act of 1989
require the conduct to be criminal under UK law at the date of commission or
only at the date of extradition? DATE OF COMMISSION.
 General rule: A state only exercises criminal jurisdiction over
offences which occur within its geographical boundaries.
 If a person alleged to have committed a crime in Spain is found in
the UK, Spain can apply to the UK to extradite him to Spain.
 The power to extradite from the UK for an "extradition crime" is
now contained in the Extradition Act of 1989, which defines what
constitutes an "extradition crime".
o Most important requirement: Double criminality rule The
conduct complained of must constitute a crime under the
laws of both Spain and the UK.
 Since the Nazi atrocities and the Nuremberg trials, IL has
recognized a number of offences as being international crimes.
o Individual states have taken jurisdiction to try some
international crimes even in cases where such crimes were
not committed within the geographical boundaries of such
states.
o Example of an international crime: Torture, which is
regulated by the International Convention Against Torture and
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other Cruel, Inhuman or Degrading Treatment or Punishment,
1984
 The obligations placed by the Torture Convention were
incorporated into UK law by the Criminal Justice Act 1988, Sec.
134, which came into force on September 29, 1988.
o Sec. 134 created a new crime under UK law: Torture.
 As required by the Torture Convention, "all" torture, wherever
committed worldwide, was made criminal under UK law and
triable in the UK.
o Before Sec. 134 came into effect, torture committed outside the UK
was not a UK crime and Sec. 134 was not retrospective to make
torture committed outside the UK before September 29, 1988 a UK
crime.
o Since torture outside the UK was not a crime under UK law
until September 29, 1988, the principle of double criminality
cannot be satisfied for conduct before that date if the principle of
double criminality requires the conduct to be criminal under UK law
at the date it was committed. If the double criminality rule only
requires the conduct to be criminal under UK law at the date of
extradition, the rule was satisfied as to all torture alleged against
Senator Pinochet.
 Torture committed outside the UK before September 29, 1988 was
not a crime under UK law.
 Extradition Act of 1989
o Under Sec. 1(1), a person who is accused of an "extradition
crime" may be arrested and returned to the state which has
requested extradition.
o Section 2 defines an "extradition crime" as:
"(1) In this Act, except in Schedule 1, 'extradition crime'
means –
(a) conduct in the territory of a foreign state, a
designated Commonwealth country or a colony
which, if it occurred in the United Kingdom, would
constitute an offence punishable with
imprisonment for a term of 12 months, or any
greater punishment, and which, however
described in the law of the foreign state,
Commonwealth country or colony, is so
punishable under that law;
(b) an extra-territorial offence against the law of a
foreign state, designated Commonwealth country
or colony which is punishable under that law with
imprisonment for a term of 12 months, or any
greater punishment, and which satisfies –
 (i) the condition specified in subsection (2)
below; or
(ii) all the conditions specified in subsection
(3) below.
(2) The condition mentioned in subsection (1)(b)(i) above is
that in corresponding circumstances equivalent
conduct would constitute an extra- territorial offence
against the law of the United Kingdom punishable with
imprisonment for a term of 12 months, or any greater
punishment.
(3) The conditions mentioned in subsection (1)(b)(ii) above
are -
(a) that the foreign state, Commonwealth country
or colony bases its jurisdiction on the
nationality of the offender;
(b) that the conduct constituting the offence
occurred outside the United Kingdom; and that,
if it occurred in the United Kingdom, it would
constitute an offence under the law of the
United Kingdom punishable with imprisonment
for a term of 12 months, or any greater
punishment."
 The words should not be viewed in isolation and there were
submissions which strongly indicate that the relevant date is the
conduct date.
 The Extradition Act of 1989 regulates at least 3 types of
extradition:
o Extradition to a Commonwealth country, to a colony, or to a
foreign country which is not a party to the European
Convention on Extradition.
 Not the present case
 Procedure
 Under Part III of Extradition Act of 1989, the extradition
request must be accompanied by evidence sufficient
to justify arrest under the Extradition Act of 1989, Sec.
7(2)(b).
 The Secretary of State then issues his authority to
proceed, which has to specify the offences under UK
law which "would be constituted by equivalent
conduct in the United Kingdom" [Sec. 7(5)]
 Under Sec. 8, the magistrate is given power to issue a
warrant of arrest if he is given such evidence "as
would justify the issue of a warrant for the arrest of a
person accused" [Sec. 8(3)].
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 The committal court then has to consider whether "the
evidence would be sufficient to warrant his trial if the
extradition crime had taken place within jurisdiction of
the court" [Sec. 9(8)].
 The above provisions indicate that the conduct must be
criminal under UK law at the conduct date, not only at the
request date.
 The process of arrest and committal leads to a
position where under Sec. 9(8), the magistrate has to
be satisfied that, under UK law, if the conduct "had
occurred," the evidence was sufficient to warrant his
trial, referencing the date when the conduct occurred.
o Extradition is sought by a foreign state which, like Spain, is a
party to the European Extradition Convention.
 The requirements applicable are the same as those of the 1st
class of case, save that the requesting state does not have to
present evidence to provide the basis for the magistrate to
make his order to commit.
 The requesting state merely supplies the information.
 The double criminality requirement must be the same in
both the 1st and 2nd classes of cases.
o Those cases where there is an Order in Council in force under
the Extradition Act of 1870.
 The procedure is not regulated by Part III of the Act of
1989, but by Schedule I to the Act of 1989 [see Sec. 1(3)].
 Schedule I contains, in effect, the relevant provisions of the Act
of 1870, which, subject to substantial amendments, had been
in force down to the passing of the Act of 1989.
 The scheme of the Act of 1870 was to define "extradition
crime" as "a crime which, if committed in England…would
be one of the crimes described in the first schedule to this
Act": Sec. 26.
 The 1st schedule to the Act of 1870 contains a list of
crimes and is headed: "The following list of crimes is to be
construed according to the law existing in England…at the
date of the alleged crime, whether by common law or by
statute made before or after the passing of this Act."
 Under the Extradition Act of 1870, the double criminality
rule required the conduct to be criminal under English law
at the conduct date not at the request date.
 In this class of case, regulated by Schedule 1 to the
Extradition Act of 1989, the same position applies, i.e.
the conduct has to be a crime under UK law at the
conduct date.
  The travaux preparatoires of the Extradition Convention
and the departmental papers leading to the Exradition Act
of 1989 were silent as to the relevant date, but there was
no discussion as to changing the date on which the
criminality under English law was to be demonstrated.
Are there extradition crimes alleged as to Senator Pinochet? YES.
 Only some of the charges relied upon to extradite Senator Pinochet
constitute extradition crimes, since most of the conduct relied upon
occurred long before 1988.
o Torture committed outside the UK before September 29, 1988 was
not a crime under UK law.
 At the 2nd hearing, the Crown Prosecution Service extended the period
during which the crimes were said to have been committed to include
the time before Senator Pinochet was head of state and, therefore,
could be entitled to immunity.
 Thus, at the 2nd hearing, counsel for Senator Pinochet revived the
submission that some of the charges, in particular, those relating to
torture and conspiracy to torture, were not "extradition crimes" because
at the time the acts were done, the acts were not criminal under UK
law.
o If the double criminality rule requires it to be shown that at the date
of the conduct, such conduct would have been criminal under UK
law, any charge based on torture or conspiracy to torture occurring
before September 29, 1988 (when Sec. 134 of the Criminal Justice
Act came into force) could not be an "extradition crime" and could
not justify an extradition order against Senator Pinochet.
 Extradition Act of 1989
o Under Sec. 1(1), a person who is accused of an "extradition
crime" may be arrested and returned to the state which has
requested extradition.
o Section 2 defines an "extradition crime" as:
“(1) In this Act, except in Schedule 1, 'extradition crime'
means –
(a) conduct in the territory of a foreign state, a
designated Commonwealth country or a colony
which, if it occurred in the United Kingdom, would
constitute an offence punishable with
imprisonment for a term of 12 months, or any
greater punishment, and which, however
described in the law of the foreign state,
Commonwealth country or colony, is so
punishable under that law;
(b) an extra-territorial offence against the law of a
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foreign state, designated Commonwealth country
or colony which is punishable under that law with
imprisonment for a term of 12 months, or any
greater punishment, and which satisfies –
(iii) the condition specified in subsection (2)
below; or
(iv) all the conditions specified in subsection
(3) below.
(2) The condition mentioned in subsection (1)(b)(i) above is
that in corresponding circumstances equivalent
conduct would constitute an extra- territorial offence
against the law of the United Kingdom punishable with
imprisonment for a term of 12 months, or any greater
punishment.
(3) The conditions mentioned in subsection (1)(b)(ii) above
are -
(a) that the foreign state, Commonwealth country or
colony bases its jurisdiction on the nationality of
the offender;
(b) that the conduct constituting the offence
occurred outside the United Kingdom; and
(c) that, if it occurred in the United Kingdom, it would
constitute an offence under the law of the United
Kingdom punishable with imprisonment for a
term of 12 months, or any greater punishment.”
 Since torture has to be a crime under UK law at the date the torture
was committed, the charges of torture and conspiracy to torture relating
to conduct before September 29, 1988 (the date on which Sec. 134
came into effect) are not extraditable, i.e. only those parts of the
conspiracy to torture alleged in charge 2 and of torture and
conspiracy to torture alleged in charge 4 (for the period after that
date) and the single act of torture alleged in charge 30 are
extradition crimes relating to torture.
 The charge of conspiracy in Spain to murder in Spain (charge 9)
and other conspiracies in Spain prior to September 29, 1988 to
commit acts of torture in Spain in charge 4 are extradition crimes.
Is Senator Pinochet entitled to state immunity? NO.
 International law prohibiting torture has the character of jus
cogens or a peremptory norm, i.e. one of those rules of
international law which have a particular status.
 The jus cogens nature of the international crime of torture justifies
states in taking universal jurisdiction over torture, wherever committed.
 International law: Offences jus cogens may be punished by any
state because the offenders are "common enemies of all mankind
 and all nations have an equal interest in their apprehension and
prosecution."
 Commentary of the 1950 Report of the International Law Commission
to the General Assembly:
 "The fact that a person who committed an act which constitutes a
crime under international law acted as head of state or responsible
Government official does not relieve him from responsibility under
international law.
"103. This principle is based on article 7 of the Charter of the
Nürnberg Tribunal. According to the Charter and the judgment, the
fact that an individual acted as head of state or responsible
government official did not relieve him from international
responsibility. 'The principle of international law which, under
certain circumstances, protects the representatives of a state', said
the Tribunal, 'cannot be applied to acts which are condemned as
criminal by international law…."
 Chile, Spain and the UK have become state parties to the Torture
Convention.
 Torture Convention, Art. 1 defines torture as the intentional infliction
of severe pain and of suffering to achieve a wide range of purposes
"when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiesence of a public official or other
person acting in an official capacity."
 The broad definition which the expression "torture" has been given
by Art. and in accordance with ordinary principles, the offence
which Sec. 134 of the Criminal Justice Act of 1988 lays down must
be taken to include the ancillary offences of counselling, procuring,
commanding and aiding orabetting acts of torture and of being an
accessory before or after the fact to such acts.
 Torture Convention, Art. 2(3) outlaws any defense of superior
orders.
 Torture Convention, Art. 5(1): Each state party has to establish its
jurisdiction over torture (a) when committed within territory under its
jurisdiction; (b) when the alleged offender is a national of that state;
and (c) in certain circumstances, when the victim is a national of that
state.
 Torture Convention, Art. 7: The state in whose territory the alleged
torturer is found shall, if he is not extradited to any of the states
mentioned in Art. 5(1), submit him to its authorities for the
purpose of prosecution.
 Torture Convention, Art. 8(1) torture is to be treated as an
extraditable offence
 Torture Convention, Art. 8(4): Torture, for extradition, shall be treated as
having been committed not only in the place where it occurred, but also
in the states mentioned in Art. 5(1).
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 A "public official or a person acting in an official capacity" under
Torture Convention, Art. 1 includes a head of state.
 Contrary to intention to exempt anyone from guilt if it was
otherwise
 Purpose of the Torture Convention: To introduce the principle of aut
dedere aut punier – either you extradite or you punish
 If there is no prosecution by, or extradition to, an Art. 5(1) state, the
state where the alleged offender is found must exercise the jurisdiction
under Article 5(2) by prosecuting him under Art. 7(1).
 Important points from the Torture Convention:
 Torture under the Convention can only be committed by "a
public official or other person acting in an official capacity,"
but these words include a head of state. A single act of official
torture is "torture" under the Convention.
 Superior orders provide no defense.
 If Art. 5(1) states do not seek to extradite, the state where the
alleged torturer is found must prosecute or extradite to
another country, i.e. there is universal jurisdiction.
 There is no express provision dealing with state immunity of
heads of state, ambassadors or other officials.
 Since Chile, Spain and the United Kingdom are all parties to the
Convention, they are bound under treaty by its provisions, whether
or not such provisions would apply in the absence of treaty
obligation. Chile ratified the Convention with effect from October
30, 1988 and the UK with effect from December 8, 1988.
 The Torture Convention does not contain any provision which deals
expressly with the question whether heads of state or former heads of
state are or are not to have immunity from allegations that they have
committed torture.
 Basic principle of international law: One sovereign state (the
forum state) does not adjudicate on the conduct of a foreign state
 A state may not be sued in the courts of another state without its
consent (although this principle is now subject to exceptions – the
exceptions in the law of the UK being set out in the State Immunity
Act of 1978).
 The foreign state is entitled to procedural immunity from the
processes of the forum state, which extends to both criminal and
civil liability.
 Under customary international law, the head of state and diplomatic
representative of the foreign state in the forum state are entitled to
the same immunity as the state itself.
 The immunity enjoyed by a head of state in power and an
ambassador in post is a complete immunity, attaching to the
person of the head of state or ambassador and rendering him
 immune from all actions or prosecutions, whether or not they
relate to matters done for the benefit of the state.
 Such immunity is said to be granted ratione personae.
 Vienna Convention on Diplomatic Relations, 1961, on when an
ambassador leaves his post:
 Art. 39(1): The ambassador's privileges shall be enjoyed from the
moment he takes up post.
 Art. 39(2): “(2) When the functions of a person enjoying privileges
and immunities have come to an end, such privileges and
immunities shall normally cease at the moment when he leaves the
country, or on expiry of a reasonable period in which to do so, but
shall subsist until that time, even in case of armed conflict.
However, with respect to acts performed by such a person in the
exercise of his functions as a member of the mission, immunity
shall continue to subsist.”
 Continuing partial immunity of the ambassador after leaving post:
Ratione materiae, a limited immunity
 Since he is no longer the representative of the foreign state, he
merits no particular privileges or immunities as a person.
 However, in order to preserve the integrity of the activities of
the foreign state during the period when he was ambassador,
immunity is afforded to his official acts during his tenure in
post.
 Under Art. 39(2) the ambassador, like any other official of the
state, enjoys immunity in relation to his official acts done
while he was an official.
 Immunity ratione personae gave complete immunity to all
activities, whether public or private
 Under common law and customary international law, a former
head of state enjoys immunity ratione materiae once he ceases to
be head of state, since he also loses immunity ratione personae
on ceasing to be head of state.
 As ex head of state, he cannot be sued in respect of acts
performed whilst head of state in his public capacity (Hatch v.
Baez), but he can be sued as to acts made in his private
capacity.
 The conduct does not have to be lawful to attract the immunity.
 The 2 types of immunities belong not to the individual but to the state in
question.
 They exist in order to protect the sovereignty of that state from
interference by other states.
 They can be modified or removed by agreement between states or
waived by the state in question.
 Sources of immunity in international law
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 Primary source: Custom ("a clear and continuous habit of doing
certain actions which has grown up under the conviction that these
actions are, according to international law, obligatory or right")
 Judicial decisions
 The writing of authors
 The general principles of law recognized by all civilized nations
 The State Immunity Act of 1978 modifies the traditional complete
immunity normally afforded by the common law in claims for damages
against foreign states.
 Part III, Sec. 20(1): "Subject to the provisions of this section and to
any necessary modifications, the Diplomatic Privileges Act 1964
shall apply to –
(a) a sovereign or other head of state;
xxx
(c) …
as it applies to a head of a diplomatic mission…”
 What section 20(1) did was to give statutory force in the UK to
customary international law as to the immunity which heads of
state, and former heads of state in particular, enjoy from
proceedings in foreign national courts
 The parliamentary history of the State Immunity Act of 1978 discloses
no clear indication of what was intended.
 The “necessary modifications” which need to be made will produce the
result that a former head of state has immunity in relation to acts done
as part of his official functions when head of state.
 Accordingly, Senator Pinochet, as former head of state, enjoys
immunity ratione materiae as to acts done by him as head of
state as part of his official functions as head of state.
 Actions which are criminal under the local law can still have been done
officially and, therefore, give rise to immunity ratione materiae.
 However, the implementation of torture (an international crime against
humanity and jus cogens), as defined by the Torture Convention,
cannot be a state function.
 Sir Arthur Watts
 “The idea that individuals who commit international crimes are
internationally accountable for them has now become an accepted
part of international law.”
 “…as a matter of general customary international law a head of
state will personally be liable to be called to account if there is
sufficient evidence that he authorised or perpetrated such serious
international crimes.”
 The Torture Convention provided a worldwide universal conspiracy to commit torture was being committed by Senator Pinochet
jurisdiction for the punishment of the crime of torture, making it a after December 8, 1988, when he lost his immunity
fully constituted international crime.
 The Torture Convention required all member states to ban and DISPOSITION: Majority opined that there were some extradition charges
outlaw torture under Art. 2. against Senator Pinochet to which he cannot invoke state immunity.
 How can it be for international law purposes an official
function to do something which international law itself
prohibits and criminalizes?
 Applying the implementation of a torture regime as a public
function giving rise to immunity ratione materiae produces bizarre
results.
 Immunity ratione materiae applies not only to ex-heads of
state and ex-ambassadors, but to all state officials who have
been involved in carrying out the functions of the state.
 Such immunity is necessary in order to prevent state
immunity being circumvented by prosecuting or suing the
official.
 If the implementation of the torture regime is to be treated as
official business sufficient to found an immunity for the former head
of state, it must also be official business sufficient to justify
immunity for his inferiors who actually did the torturing.
 Under the Torture Convention, the international crime of
torture can only be committed by an official or someone in an
official capacity, so they would all be entitled to immunity.
 Thus, there can be no case outside Chile in which a successful
prosecution for torture can be brought unless the State of Chile is
prepared to waive its right to its official’s immunity.
 Therefore, the structure of universal jurisdiction over torture
committed by officials is rendered abortive and one of the main
objectives of the Torture Convention – to provide a system
under which there is no safe haven for torturers – will have
been frustrated.
 If Senator Pinochet organized and authorized torture after
December 8, 1988, he was not acting in any capacity which gives
rise to immunity ratione materiae because such actions were
contrary to international law, Chile had agreed to outlaw such
conduct, and Chile had agreed with the other parties to the
Torture Convention that all signatory states should have
jurisdiction to try official torture (as defined in the Convention),
even if such torture were committed in Chile.
 Charges of murder and conspiracy to murder: No one has advanced
any reason why the ordinary rules of immunity should not apply, so
Senator Pinochet is entitled to such immunity.
 Conclusion: Allow the appeal so as to permit the extradition
proceedings to proceed on the allegation that torture in pursuance of a
Page 7 of 73
 Israel v. Eichmann (1962)
SUMMARY: Adolf Eichmann was an important Nazi bureaucrat who oversaw
much of the Final Solution (aka Final Solution of the Jewish Question, i.e.,
obliteration of Jews). He escaped capture and eventually fled to Argentina.
Eichmann was eventually tracked down by Israeli intelligence agents. Because
of doubts that Argentina would cooperate in his extradition, Eichmann was
kidnapped and taken secretly to Israel for prosecution. Argentina complained
to the Security Council about this clear violation of Argentine sovereignty. The
Security Council, while making it clear that it did not condone Eichmann's
crimes, declared that "the kidnapping which affects the sovereignty of a
Member State and therefore cause international friction, may, if repeated,
endanger international peace and security." The Council then requested Israel
"to make appropriate reparation in accordance with UN Charter and the rules
of international law." BUT Argentina did not demand the return of Eichmann,
and in August, 1960, the Argentine and Israeli gov’ts resolved in a joint
communique "to regard the incident as closed." Eichmann was then tried in
Israel under Israel's Nazi Collaborators Law (a law enacted after Israel
became a state in 1948). Eichmann unsuccessfully argued that the courts of
Israel had no jurisdiction, that the judges were biased, and that he was being
punished under retroactive criminal law. Eichmann's conviction was upheld by
SC. Appeals to PM Ben Gurion that he not be executed were rejected. On May
31, 1962 Eichmann went to the gallows, the only person ever formally
executed by the State of Israel.
FACTS:
Offenses by Eichmann:
 Group One: Crimes against the Jewish People, contrary to Section
I(a) (1) of the Nazis and Nazi Collaborators Punishment Law
o killing Jews, subjecting them to living conditions bringing about
physical destruction, bodily and mental harm, banning births
and pregnancies of among Jewish women in the Therezin
Ghetto
 Group Two: Crimes against Humanity, contrary to Section 1(a) (2);
o murder, extermination, enslavement, starvation, deportation.
expulsion
 Group Three: War Crimes, contrary to Section 1(a) (3);
o persecution, expulsion and murder mentioned done during
World War II
 Group Four: Membership of Hostile Organizations, contrary to
Section 3
o member of three Nazi police organizations declared criminal
organizations by the International Military Tribunal and Article
6 of the London Charter
TWO Major Contentions of Eichmann
Page 8 of 73
 PURELY LEGAL: The basis of the jurisdiction of a court in Israel to
try him for the crimes
o The Law of 1950, which is the only source of the jurisdiction
of the Court, constitutes ex post facto penal legislation, which
established as offences acts that were committed before the
State of Israel came into existence; therefore, the validity of
this Law is limited to citizens of Israel alone.
o The offences are in the nature of `extra-territorial offences,'
– offences that were committed outside the territory of Israel
by a citizen of a foreign state; and even though the Law of
1950 confers jurisdiction in such offences, it conflicts with
the principle of territorial sovereignty, which postulates that
only the country within whose territory the offence was
committed, or to which the offender belongs - in this case,
Germany - has jurisdiction to punish.
o The acts constituting the offence were, at the time of
commission, acts of state.
o He was brought to Israeli territory, to be tried for the offences
in question, unwillingly and without the consent of the
country in which he resided, through agents of the State of
Israel who acted on the orders of their governments.
o The Judges of the District Court, being Jews and feeling a
sense of affinity with the victims, were psychologically
incapable of giving an objective trial.
 FACTUAL: He was not a part of a `small cog' in the machine of Nazi
destruction
o He was only a junior official, and one without any initiative of
his own, and that nothing but the compulsion of an order and
blind obedience guided him
(cont. of facts)
 TC convicted Eichmann and sentenced him to death.
 Eichmann wanted to produce new evidence on appeal. Israel SC
denied.
 SC notes that it rejects all contentions of Eichmann and FULLY
concurs with the judgment of TC – it is supported by copious judicial
precedents and substantial proof out of the monumental evidence. SC
actually said that there is no need to formulate their own opinion
separately since TC has done it for them (haha).
RATIO:
 SC cites District Court judgment: "The Court has to give effect to a
law of the Knesset, and we cannot entertain the contention that such a
law conflicts with the principles of international law." (Knesset – Israeli
legislature)
Municipal v. International Law
  Eichmann: Preference must be given to international law.
 SC: NO. According to the law of Israel, which is identical on this point
with English law, the relationship between municipal law and
international law is governed by the following rules:
o 1) The principle becomes incorporated into the municipal law
and a part of that law only after it has achieved general
international recognition…A principle of international law
must therefore be established by sufficient proof to justify the
conclusion...that it is recognized and well known by the
majority of states.
o 2) However, No. 1 only applies where there is no conflict
between municipal law and international law. But where
conflict exists, it is the duty of the court to give
preference to and apply the laws of the local legislature.
True, the presumption must be that the legislature strives to
adjust its laws to the principles of international law which have
received general recognition. But where a contrary intention
clearly emerges from the statute, that presumption loses its
force, and the court is enjoined to disregard it.
o 3) In view of said presumption, a local statutory provision,
which is open to equivocal construction and whose content
does not demand another construction, must be construed in
accordance with the rules of public international law.
o SC used the first rule.
RE: Law of 1950. The principle nullum crimen sine lege, nulla poena sine lege
(no crime without law punishing it), insofar as it negates penal legislation with
retroactive effect, has not yet become a rule of customary international law.
 There is no rule of general customary international law forbidding the
enactment of norms with retrospective force, so called ex post facto
laws. (UK was given as an example).
 Thus, the contention of Eichmann to use international law cannot be
made sincethere exists no such rule of international law.
 Also, the gravity of Eichmann’s crimes negate the ethical aspect of the
principle (that one cannot be punished with what has not been
prohibited yet).
RE: Conflict with Principle of Territorial Sovereignty. (Still, SC used the
first rule. See above). Also, there is no such rule in customary international
law, and to this day it has not won universal international recognition.
 SS Lotus case cited. Principle of territorial sovereignty merely
requires that a state exercise its power to punish within its own
borders, not outside them; that subject to this restriction every state
may exercise a wide discretion as to the application of its laws and the
jurisdiction of its courts in respect of acts committed outside the state;
and that only insofar as it is possible to point to a specific rule
prohibiting the exercise of this discretion - a rule agreed upon by
Page 9 of 73
international treaty - is a state prevented from exercising it. Two
grounds:
o It is precisely state sovereignty which demands the preclusion
of any presumption that there is a restriction on its
independence;
o Even if it is true that the principle of the territorial character of
criminal law is firmly established in various states, it is no less
true that in almost all such states criminal jurisdiction has been
extended, in ways that vary from state to state, so as to
embrace offences committed outside its territory.
o In other words, jurisdiction is certainly territorial; it cannot be
exercised by a state outside its territory except by virtue of a
permissive rule derived from international custom or from a
convention. HOWEVER, it doesn’t follow that international
law prohibits a state from exercising jurisdiction in its
own territory, in respect of any case which relates to acts
which have taken place abroad, and in which it cannot
rely on some permissive rule of international law. Such a
view would only be tenable if international law contained a
general prohibition to states to extend the application of their
laws and the jurisdiction of their courts to persons, property
and acts outside its territory, and if, as an exception to their
general prohibitionof another, it allowed states to do so in
certain specific cases. States are left with a wide measure of
discretion which is only limited in certain cases by prohibitive
rules; as regards other cases, every state remains free to
adopt the principles which it regards as best and most
suitable.
o All that can be required of a state is that it should not overstep
the limits which international law places upon its jurisdiction;
within these limits, its title to exercise jurisdiction rests in
its sovereignty.
 SC notes that in the SS Lotus case, there were 2 divided opinions.
First opinion is the above opinion. The second opinion is that since the
damage occurred in a place which was deemed to be Turkish territory,
the principle of territorial sovereignty was upheld.
o BUT Sc has no intention of dealing with these opinions. Its
point is that, on the question of the jurisdiction of a state to
punish persons who are not its nationals for acts committed
beyond its borders, there is as yet no international accord.
 In the absence of general agreement as to the existence of the rule of
international law, there is no escape from the conclusion that it cannot
be deemed to be embodied in Israel municipal law.
 Assuming that international law prohibits a state from trying a foreign
national for an act committed outside its borders, still, the violation of it
 is deemed to be a violation of the rights of the state to which the
accused belongs, and not a violation of his own rights.
o CASE AT BAR: According to Eichmann’s own words, his
application to the Government of Western Germany to claim
its right to try him in Germany, was refused.
Note that the discussions above are negative approaches (i.e., that there is
NO prohibition in int’l law).
POSITIVE APPROACH: Now, SC wants to justify itself more by using two
positive approaches (i.e., that the Knesset only sought to apply the principles
of international law and to realize its objectives. Number 2 is the most
important part):
1) The crimes created by the Nazi Collaborators Law must be deemed today
to have always borne the stamp of international crimes, banned by
international law and entailing individual criminal liability;
 Law of Nations is not derived solely from international treaties and
from crystallized international usage but also of the common law. SC
cited many jurists discussing the evolution of international law by
adapting to the needs of mankind (customary law). This applies with
even greater force to the criminal branch of international law
which, it is universally admitted, is as yet at the initial - one might even
say `primitive' - stage of its development.
 SC then discussed the four categories of crime in which Eichmann is
tried (see above for overview. I didn’t include the extensive discussion
here. It’s about the nature and scope of each category and the way
they may overlap and are interdependent with one another. Also, they
are all crimes that demand mens rea (criminal intent) on the part of the
perpetrator.)
 The sources of the definitions of the four categories are to be
found in international documents that define the corresponding
crimes:
o `Genocide' - corresponding to a `crime against the Jewish
People' - in the Convention adopted by the United Nations
Assembly (1948)
o `Crime against Humanity' and `War Crime' - in the Nuremberg
Tribunal Charter and in Law No. 10 of the Control Commission
of Germany (1945);
o Local offence of `Membership of a Hostile Organization' was
defined by reference to the pronouncement on `Hostile
Organizations,' embodied in the Judgment of the Nuremberg
Tribunal
 SC cited Glueck: It is true that the command which the accused was
held to have violated did not come directly and specifically from the
legislature or sovereign; but since the prohibition represented the
consensus of the people as contained in customary usage, it
contained enough of the imperative element to warn its prospective
Page 10 of 73
violators, to impel judges to recognize it as an existing part of the law
of the land and to hold its violators guilty of a crime. So it is with
modern international common law…
 There are crimes that have long been recognized by customary
international law. These are acts which: 1) damage vital international
interests; 2) impair the foundations and security of the international
community; 3) violate universal moral values and humanitarian
principles.
 It is true that international law does not establish explicit and
graduated criminal sanctions; that there is not as yet in existence
either an International Criminal Court, or international machinery for
the imposition of punishment. But, for the time being, international law
surmounts these difficulties - which themselves reflect its present low
stage of development - by authorizing the countries of the world to
mete out punishment for the violation of its provisions. This they do by
enforcing these provisions either directly or by virtue of the municipal
legislation which has adopted and integrated them.
 Illustrations of ‘customary' international crime: 1) piracy jure
gentium (piracy against the law of nations), 2) threatening to assault
the secretary of the French Diplomatic Mission, AND 3) `war crime' in
the conventional sense (this has closer relevance to this case).
 CONCLUSION: The crimes established in the Law of 1950, which
we have grouped under the inclusive heading `Crimes against
Humanity,' must be seen today as acts that have always been
forbidden by customary international law - acts which are of a
`universal' criminal character and entail individual criminal
responsibility. This being so, the enactment of the Law was not, from
the point of view of international law, a legislative act that conflicted
with the principle nulla poena or the operation of which was
retroactive, but rather one by which the Knesset gave effect to
international law and its objectives.
2) It is the particular universal character of these crimes that vests in each
state the power to try and punish anyone who assisted in their commission.
 PRINCIPLE OF UNIVERSALITY/ PRINCIPLE OF UNIVERSAL
JURISDICTION: The power (to try and punish) is vested in every state
regardless of the fact that the offence was committed outside its
territory by a person who did not belong to it, provided he is in its
custody at the time he is brought to trial.
 This principle has wide support and is universally acknowledged with
respect to the offence of piracy jure gentium. BUT while there exists
general agreement as to its application to piracy , there is a difference
of opinion as to the scope of its application. There are many schools
of thought as to scope of this principle:
o 1) It is universal.
 o 2) It is an auxiliary principle, to be applied in circumstances in
which no resort can be had to the principle of territorial
sovereignty or to the nationality principle, both of which are
universally agreed to. As such, this school of thought has
varied restrictions, one of which is: The state contemplating
the exercise of the power in question must first offer the
extradition of the offender to the state within whose territory
the offence was committed (forum delicti commissi).
o 3) Universal jurisdiction, which is valid in cases of piracy,
logically applies also to all such criminal acts of commission or
omission which constitute offences under the law of nations
(delicta juris gentium) without any reservation whatever or, at
most, subject to a reservation of the kind mentioned above.
This view has been opposed in the past because of the
difficulty in securing general agreement as to the offences to
be included in the above-mentioned class.
o 4) In the absence of effective extradition, the courts of a state
were to assume jurisdiction over common crimes, by
whomsoever and wherever committed, of a heinous
character.
 Notwithstanding the differences between the schools of thought, there
is full justification for applying in this case the principle of universal
jurisdiction, since the international character of the `crimes against
humanity' (in the wide meaning of the term) is, in this case, not in
doubt, and the unprecedented extent of their injurious and murderous
effects is not open to dispute at the present day.
o The state which prosecutes and punishes a person for that
offence (piracy, specifically in this quote) acts solely as the
organ and agent of the international community, and
metes out punishment to the offender for his breach of
the prohibition imposed by the law of nations.
 Piracy against law of nations vis-à-vis the four categories of
crimes in this case (or war crimes, generally):
o The explanation of the substantive basis underlying the
exercise of universal jurisdiction in respect of the crime of
piracy also justifies its exercise in regard to the crimes in this
case.
o Whenever the `belligerent' countries tried and punished a
member of the armed forces of the enemy for any act contrary
to `the laws and customs of war,' it did so because an
international crime was involved which the countries of
the world as a whole were anxious to prevent.
o The jurisdiction, exercised over war crimes, has been of the
same nature as that exercised in the case of the pirate, and
Page 11 of 73
this broad jurisdiction has been assumed for the same
fundamental reason.
o "...under international law, every independent state has
jurisdiction to punish war criminals in its custody
regardless of the nationality of the victim, the time it entered
the war, or the place where the offence was committed."
Examples:
 Brtitish military tribunals in Germany where victims
were not British subjects but nationals of allied
countries
 British military court in Singapore sentencing a
member of Japanese army for killing American
prisoners of war in Saigon, a French territory (ang
daming countriesss)
 American tribunals in Germany
o "International law also surmounts the jurisdictional
barrier, as municipal law cannot, by recognizing the
universality of jurisdiction enjoyed by war crimes
tribunals." (Baxter)
o Moreover, according to Baxter, even a neutral country has the
right to try a person for a war crime: Since each sovereign
power stands in the position of a guardian of international law,
and is equally interested in upholding it, any state has the
legal right to try war crimes, even though the crimes have
been committed against the nationals of another power and in
a conflict to which that state is not a party. "This has been
called the doctrine of the Universality of Jurisdiction over
war crimes."
 RE: The restriction mentioned second school of thought (requiring
first the offer of extradition to the State where the offense was
committed). The limitation is based upon the approach implicit in the
maxim aut dedere aut punire (extradite or prosecute) invoked by
Eichmann.
o SC: Cannot be invoked. The requirement of making an offer to
extradite the offender to the state of his national origin is
supported neither by international law nor by the practice
of states. Also, Eichmann’s application to the Government of
Western Germany to demand the extradition of his client was
refused.
o Eichmann: The practical rationale for this limitation is that the
great majority of the witnesses and the greater part of the
evidence are concentrated in that state, and it becomes,
therefore, the most convenient place (forum convenicus) for
the conduct of the trial.
  SC: NO. The great majority of the witnesses who
gave evidence here on the grave crimes were
residents of Israel, and, moreover, the bulk of the vast
mass of documents produced was previously
gathered and preserved (through Yad Vashem) in the
State of Israel. Eichmann himself has relied for his
defence on a number of the documents which are in
this country and have been made available to him. It
is clear, therefore, that it is the State of Israel - not the
State of Germany - that must be regarded as the
forum convenicus for the trial.
 RE: Other countries desiring to try and punish Eichmann. We
have not heard of a single protest by any of these countries against
conducting the trial in Israel, and it is reasonable to believe that, as
Israel has exercised its jurisdiction in this matter, no other state has
demanded the right to do so.
o The allegedly general principle of law entitling a man to be
tried where his offences are charged to have been committed
is rendered nugatory...by the fact that his offences were
committed in a great number of places. Application of the
territoriality principle in this instance would thus lead to an
arbitrary choice"
 Eichmann contends that Art. 6 of the Genocide Convention confirms
that he must be tried where the crime was committed.
o SC: Article 6 imposes upon the parties contractual obligations
with future effect, that is to say, obligations which bind them to
prosecute for crimes of `genocide' which will be committed
within their territories in the future. This obligation, however,
has nothing to do with the universal power vested in every
state to prosecute for crimes of this type committed in the past
- a power which is based on customary international law.
 IN SUM: Not only are all the crimes attributed to Eichmann of an
international character, but they are crimes whose evil and
murderous effects were so widespread as to shake the stability of
the international community to its very foundations. The State of
Israel, therefore, was entitled, pursuant to the principle of
universal jurisdiction, and acting in the capacity of guardian of
international law and agents for its enforcement, to try Eichmann.
It is immaterial that the State of Israel did not exist at the time the
offences were committed. Here, therefore, is an additional reason -
one based on a positive approach - for rejecting the second
`jurisdictional' contention of Eichmann.
 One further observation: As to crimes directed against Jews
Additional support for jurisdiction in the connecting link between the
State of Israel and the Jewish People. It therefore upheld its
Page 12 of 73
criminal jurisdiction also by virtue of the protective principle and
the principle of passive personality.
o Protective principle: The doctrine that a sovereign state has
the power to assert jurisdiction over a person whose conduct
outside its boundaries threatens its security or could interfere
with the operation of its government functions. (researched
from Black’s)
o Principle of passive personality: The passive personality
principle allows states, in limited cases, to claim jurisdiction to
try a foreign national for offenses committed abroad that affect
its own citizens. (online)
RE: Being brought to Israel without his consent and against his will (AKA
MANNER OF ARREST, as per reviewer).
 Relying on a long array of local, British, American and Continental
precedents, SC has reached the ff: conclusions:
o 1) In the absence of an extradition agreement between the
state to which a `fugitive offender' has been brought for trial
and the country of `asylum' (from which he was removed by
force or by stratagem) - and even if there existed such an
agreement between the two countries, but the offender was
not extradited to the first country in accordance therewith - the
Court will not investigate the circumstances in which he
was detained and brought to the area of jurisdiction.
 Roque Notes: This is the “Ma-and-Pa” doctrine,
originally from Ker v. Illinois.
o 2) This also applies if it is the offender's contention that the
abduction was carried out by the agents of the state
prosecuting him, since in such a case the right violated is not
that of the offender, but the sovereign right of the state
aggrieved. In other words, the violation of the right raises a
question - either political or one of a breach of international
law - between the two countries concerned. It must therefore
find its solution at this international level, and is not justiciable
before the court into whose area of jurisdiction the offender
has been brought.
o 3) From the point of view of international law, the aggrieved
state may condone the violation of its sovereignty and waive
its claims, including the claim for the return of the offender to
its territory, and such waiver may be explicit or by
acquiescence.
o 4) Only in one eventuality has a fugitive offender a right of
immunity - when he has been extradited by the country of
asylum to the country requesting his extradition for a
specific offence, which is not the offence for which he is
tried.
  CASE AT BAR:
o Eichmann was not extradited to Israel by Argentina, and the
State of Israel is not bound by any agreement with Argentina
to try him for another specific offence, or not to try him for the
offences for which he is being tried in this case.
o Folowing upon the Resolution of the UN Security Council,
Argentina and Israel settled the dispute between them when
they issued a joint communique saying that they "resolved to
view as settled the incident which was caused in consequence
of the action of citizens of Israel, which violated the basic
rights of the State of Argentina."
o The rights of asylum and immunity belong to the country of
asylum, not to the offender.
o THUS, there was no room for hearing the evidence which
Eichmann sought to produce on the circumstances of the
abduction.
In reply to Eichmann’s contentions:
 That the British and US precedents cited by the District Court dealt
with a different case where the court’s jurisdiction was already
competent at the time the offender committed the offense.
o SC: Eichmann is a `fugitive from justice' from the point
of view of the law of nations, since the crimes that were
attributed to him are of an international character and have
been condemned publicly by the civilized world; therefore, by
virtue of the principle of universal jurisdiction, every country
has the right to try him. This jurisdiction was automatically
vested in the State of Israel on its establishment in 1948 as a
sovereign state. It is immaterial that the crimes in question
were committed at a time when the State of Israel did not
exist, and outside its territory.
 That in the UN Security Council Resolution, Israel was requested to
make appropriate reparation to Argentina; hence the matter involves
a violation of international law, and the Court should have not refused
to examine the factual question of whether Israel was a party to the
abduction.
o SC: All the Security Council sought to do was to cause a
settlement of the dispute which had arisen between the two
countries in connection with Argentina's complaint of the
violation of her sovereignty. Insofar as there was any such
violation by the Government of Israel, Eichmann cannot
benefit by it.
 That the joint communiqué did not mean that Argentina has waived
her claims, but only that the issue has been terminated for the
purpose of preventing `diplomatic friction'
Page 13 of 73
o SC: The language of the said communique is clear and
unequivocal, and the Court was right in the construction
which it put upon it. (didn’t provide quote as to the
communiqué)
 That as an international law imposes obligations on the individual, so
also does it grant him rights, and here Eichmann’s right to freedom
and personal security, a right vested in him by international law, has
been violated (Art 5 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms)
o SC: Israel is not a party to this Convention. In customary
international law, it has already been explained that the
abduction Eichmann is no ground for denying to the Court its
competence to try him once he is within the area of its
jurisdiction.
RE: The contention that the crimes were in the nature of Acts of State.
 ACTS OF STATE: The theory of `Act of State' means that the act
performed by a person as an organ of the state - whether he was the
head of the state or a responsible official acting on the government's
orders - must be seen as an act of the state only. The state alone
bears responsibility therefor, and it also follows that another state
has no right to punish the person who committed the act, save with the
consent of the state whose mission he carried out. Were it not so, the
first state would be interfering in the internal affairs of the second,
which is contrary to the conception of the equality of states based on
their sovereignty (Kelsen, Peace through Law).
 Contention rejected. The concept of `sovereignty,' from which the
doctrine of `Act of State' derives, is not considered in our time to be
an absolute concept and had not gained general recognition.
 In any event, there is no basis for the doctrine when the matter
pertains to an act prohibited by the law of nations, especially when
they are international crimes in the class of `Crimes against Humanity'
(in the wide sense). Of such heinous acts it must be said that they
are completely outside the `sovereign' jurisdiction of the state
that ordered or ratified their commission, and therefore those who
participated in such acts must personally account for them and cannot
seek shelter behind the official character of their task or mission, or
behind the `Laws' of the state by virtue of which they purported to act.
 International law postulates that it is impossible for a state to
sanction an act that violates its severe prohibitions, and from this
follows the idea which forms the core of the concept
`international crime': that a person who was a party to such a crime
must bear individual responsibility for his conduct. Otherwise, the
penal provisions of international law would be frustrated.
 The defence of `Act of State" was not regarded as an adequate
defence to the charge of an offence against the `laws of war'
(`conventional' war crime).
o Example: German General Stenger who was sentenced in
1920 SC Leipzig for the killing of wounded French soldiers in
WWI.
 Whatever may be the value of the above doctrine in other cases,
Article 7 of the Charter of the International Military Tribunal at
Nuremberg, to which the Tribunal adhered, states that the doctrine
cannot afford a defence in respect of international crimes, particularly
those defined in the Charter.
 Eichmann: Hitler’s orders were Nazi Law.
o SC: The Final Solution was at no time embodied in a `Law'.
o Moreover, the dominant tendency in the jurisprudence of
Western Germany today is to invalidate ab initio the
discriminatory and destructive decrees of the Nazi regime, to
deny them any legal validity from the day they were issued or
enforced, and to apply this approach also to the `norms' which
were of Hitler's own creation.
o The discriminatory and plunderous decrees of that wicked
state, and the murderous edicts of the autocrat who directed
its affairs, are not laws in the eyes of international law and can
by no means give these terrible crimes the imprimatur of
validity, or absolve those who participated in them from the
personal responsibility they bear.
o "The very contention that the systematic extermination of
masses of helpless human beings by a government or regime
could constitute an `Act of State,' appears to be an insult to
reason and a mockery of law and justice."
 Eichmann: It was obedience to superior orders. He had no
alternative - either by law or by virtue of the regulations of the
disciplinary body (army, etc.) of which he was a member - but to carry
out the order he received from his superior.
o SC: NOOO. Eichmann acted independently, and even
exceeded the tasks assigned to him through the service
channels of the official chain of command.
o The difficulty in recognizing this defence depends on the
answer to the question if, and to what extent, the mental state
of the accused at the time of the offence ought to be taken into
consideration, namely, the fact that he did not then know that
the order he carried out was contrary to the law. In Israel
Criminal Law, the defense is admissible where there was
obedience to an order not manifestly unlawful. BUT, it shall
not be admissible with respect to the offences covered by the
Nazi Collaborators Law. (There is a long discussion about
Page 14 of 73
obedience to orders which I omitted since this case is under
the topic, Sovereign Immunity.)
RE: The contention that the judges are psychologically incapable of
judging the case objectively.
 SC just cited the District Court: Indeed while on the bench, a judge
does not cease to be flesh and blood, possessed of emotions and
impulses. However he is required by law to subdue these emotions
and impulses, for otherwise a judge will never be fit to consider a
criminal charge which arouses feelings of revulsion, such as treason,
murder or any other grave crime. It is true that the memory of the
Holocaust shocks every Jew to the depth of his being, but when this
case is brought before us we are obliged to overcome these emotions
while sitting in judgment. This duty we shall fulfill.”
The SC then discussed procedural matters re: introduction of evidence.
DISPOSITION: District Court CONVICTION AND SENTENCE AFFIRMED.
We know only too well how utterly inadequate this death sentence is as
compared to the millions of deaths in the most horrible ways he inflicted on his
victims. Even as there is no word in human speech to describe deeds such as
the deeds of the Appellant, so there is no punishment in human laws
sufficiently grave to match the guilt of Eichmann. But our knowledge that any
treatment meted out to the Appellant would be inadequate - as would be any
penalty or punishment inflicted on him - must not move us to mitigate the
punishment. Indeed, there can be no sense in sending to the gallows, under
the Nazis and Nazi Collaborators (Punishment) Law, one who killed a hundred
people, while setting free, or putting under guard and then keeping under
close guard, one who killed millions. When, in 1950, the Israel legislature
provided the maximum penalty laid down in the law, it could not have
envisaged a criminal greater than Adolf Eichmann, and if we are not to
frustrate the will of the legislature, we must impose on Eichmann the maximum
penalty provided in Section 1 of the Law, which is the penalty of death.
Ker v. Illinois (1886)
FACTS:
 Frederick M. Ker, was indicted, tried, and convicted in the Criminal
Court of Cook County, in that state, for larceny. The indictment also
included charges of embezzlement.
 Ker left for Lima, Peru soon after his conviction.
 Governor Hamilton, of Illinois, made his requisition, in writing, to the
Secretary of State of the United States for a warrant requesting the
extradition of the defendant, by the executive of the Republic of Peru,
from that country to Cook County;
 that on the first day of March, 1883, the President of the United States
issued his warrant, in due form, directed to Henry G. Julian, as
 messenger, to receive the defendant from the authorities of Peru upon
a charge of larceny, in compliance with the treaty between the United
States and Peru on that subject;
 that the said Julian, having the necessary papers with him, arrived in
Lima, but, without presenting them to any officer of the Peruvian
government or making any demand on that government for the
surrender of Ker, forcibly and with violence arrested him, placed him
on board the United States vessel Essex, in the harbor of Callao, kept
him a close prisoner until the arrival of that vessel at Honolulu, where,
after some detention, he was transferred in the same forcible manner
on board another vessel, to-wit, the City of Sydney, in which he was
carried a prisoner to San Francisco, in the State of California.
 The plea then states that before his arrival in that city, Governor
Hamilton had made a requisition on the Governor of California, under
the laws and Constitution of the United States, for the delivery up of
the defendant as a fugitive from justice, who had escaped to that state
on account of the same offenses charged in the requisition on Peru
and in the indictment in this case.
 This requisition arrived, as the plea states, and was presented to the
Governor of California, who made his order for the surrender of the
defendant to the person appointed by the Governor of Illinois, namely,
one Frank Warner, on the 25th day of June, 1883.
 Ker: 1) arrest was without due process of law and tantamount to
kidnapping 2) he acquired by his residence in that country a right of
asylum -- a right to be free from molestation for the crime committed in
Illinois, a positive right in him that he should only be forcibly removed
from Peru to the State of Illinois in accordance with the provisions of
the treaty -- and that this right is one which he can assert in the courts
of the United States in all cases
ISSUE:
1) W/N arrest was without due process (NO)
2) W/N Ker’s right of asylum can be raised as a defense (N0
SC:
1. Arrest cannot be said to be without due process
 The "due process of law" here guaranteed is complied with when the
party is regularly indicted by the proper grand jury in the state court,
has a trial according to the forms and modes prescribed for such trials,
and when, in that trial and proceedings, he is deprived of no rights to
which he is lawfully entitled.
 We do not intend to say that there may not be proceedings previous
to the trial in regard to which the prisoner could invoke in some
manner the provisions of this clause of the Constitution, but, for mere
irregularities in the manner in which he may be brought into
Page 15 of 73
custody of the law, we do not think he is entitled to say that he
should not be tried at all for the crime with which he is charged in
a regular indictment.
 He may be arrested for a very heinous offense by persons without any
warrant, or without any previous complaint, and brought before a
proper officer, and this may be in some sense said to be "without due
process of law."
 But it would hardly be claimed that, after the case had been
investigated and the defendant held by the proper authorities to
answer for the crime, he could plead that he was first arrested "without
due process of law."
 So here, when found within the jurisdiction of the State of Illinois and
liable to answer for a crime against the laws of that state, unless there
was some positive provision of the Constitution or of the laws of this
country violated in bringing him into court, it is not easy to see how he
can say that he is there "without due process of law" within the
meaning of the constitutional provision.
2. Right of asylum cannot be invoked
 There is no language in this treaty or in any other treaty made by this
country on the subject of extradition of which we are aware which says
in terms that a party fleeing from the United States to escape
punishment for crime becomes thereby entitled to an asylum in the
country to which he has fled.
 Indeed, the absurdity of such a proposition would at once prevent the
making of a treaty of that kind. It will not be for a moment contended
that the government of Peru could not have ordered Ker out of the
country on his arrival or at any period of his residence there.
 Nor can it be doubted that the government of Peru could, of its own
accord, without any demand from the United States, have surrendered
Ker to an agent of the State of Illinois, and that such surrender would
have been valid within the dominions of Peru.
 It is idle, therefore, to claim that, either by express terms or by
implication, there is given to a fugitive from justice in one of these
countries any right to remain and reside in the other, and if the right of
asylum means anything, it must mean this.
 The right of the government of Peru voluntarily to give a party in
Ker's condition an asylum in that country is quite a different thing
from the right in him to demand and insist upon security in such
an asylum.
 The treaty, so far as it regulates the right of asylum at all, is intended
to limit this right in the case of one who is proved to be a criminal
fleeing from justice, so that, on proper demand and proceedings had
therein, the government of the country of the asylum shall deliver him
up to the country where the crime was committed. And to this extent,
and to this alone, the treaty does regulate or impose a restriction upon
 the right of the government of the country of the asylum to protect the
criminal from removal therefrom.
 In the case before us, the plea shows that although Julian went to
Peru with the necessary papers to procure the extradition of Ker under
the treaty, those papers remained in his pocket, and were never
brought to light in Peru; that no steps were taken under them, and that
Julian, in seizing upon the person of Ker and carrying him out of the
territory of Peru into the United States, did not act, nor profess to act,
under the treaty.
 In fact, that treaty was not called into operation, was not relied
upon, was not made the pretext of arrest, and the facts show that
it was clear case of kidnapping within the dominions of Peru,
without any pretense of authority under the treaty or from the
government of the United States.
 We think it very clear, therefore, that in invoking the jurisdiction of this
Court upon the ground that the prisoner was denied a right conferred
upon him by a treaty of the United States, he has failed to establish
the existence of any such right.
Page 16 of 73
United States v. Alvarez-Machain (1992)
FACTS:
 Respondent Alvarez-Machain is a citizen of Mexico who was indicted
for participating in the kidnap and murder of US Drug Enforcement
Agency (DEA) agent Camarena-Salazar and Mexican Pilot Zavala-
Avelar. Respondent, who is a doctor, allegedly participated in the
murder by prolonging the life of the agent so that others could further
torture and interrogate him.
 In April 1990, respondent was forcibly kidnapped from his office in
Mexico and was flown by private plane to Texas where he was
arrested by DEA officials. The District Court concluded that the agents
were responsible for the abduction although they were not personally
involved in it.
 Respondent wanted dismissal of the indictment claiming that his
abduction is outrageous government conduct and that the Court
lacked jurisdiction to try him because he was abducted in violation of
the 1974 extradition treaty between US and Mexico.
 The District Court rejected the outrageous conduct claim but upheld
the lack of jurisdiction. Respondent was discharged and ordered to be
repatriated to Mexico. CA affirmed the decision following their ruling in
US v Verdugo-Urquidez. The appellate court averred that the
abduction was a violation of the “purpose” of the international treaty
although the act is not expressly prohibited. A violation of the treaty
coupled with the formal protest (Letters from Mexican Government) of
the offended nation will indeed give defendant the right to invoke
Treaty violation to defeat the jurisdiction of the District Court. The
proper remedy would be dismissal of the indictment and repatriation.
ISSUES + RULING:
WoN abduction of respondent from Mexico violated the Extradition Treaty
between the US and Mexico? NO.
 To determine the meaning of a treaty, its terms must be looked upon
first.
o The treaty says nothing about the obligations of US and
Mexico to refrain from forcible abductions of people from the
territory of another nation or the consequences of such an act.
o Respondent argues that Article 22(1) of the Treaty shows an
intent to make the application of the Treaty mandatory for
those offenses specified therein (including murder). He further
argues that Article 9 of the treaty bound US. Specifically, if the
United States wishes to prosecute a Mexican national, it may
request that individual’s extradition. Upon a request from the
United States, Mexico may either extradite the individual or
 submit the case to the proper authorities for prosecution in
Mexico.
 However, Article 9 does not purport to specify the only
way in which one country may gain custody of a
national. If it were so, the absence of an extradition
treaty would put nations under no obligation to
surrender those in their country to foreign authorities.
 Purpose of treaties is to impose mutual obligations to
surrender individuals in certain defined sets of
circumstances, following established procedures.
These procedures apply only when the treaty is
invoked.
 History of negotiation fails to show that abductions outside the Treaty
constitute a violation.
o Mexican government was made aware of the Ker doctrine
since 1906 and the position of US with regard to abductions
outside of the terms of treaties.
 Ker v Illinois: Ker was tried and convicted in an Illinois
court for larceny; his presence before the court was
procured by means of forcible abduction from Peru. A
messenger was sent to Lima with the proper warrant
to demand Ker by virtue of extradition but the
messenger, disdained with treaty processes, decided
to kidnap Ker and bring him to US.
 Defense of due process will not hold.
Forcible abduction is no sufficient reason
why the party should not answer when
brought within the jurisdiction of the court
which has the right to try him for such an
offense, and presents no valid objection
to his trial in such court.
 The language of the 1978 Treaty does not support the proposition that
the Treaty prohibits abductions outside of its terms.
o The language used does not attempt to establish a rule that
would curtail the Ker doctrine. Neither was there a clause
which supports the right sought by the respondent, even
though the same was already considered and drafted by a
group of legal scholars as early as 1935.
o Respondent tried to argue against the Treaty’s lack of a
prohibition clause against abductions. He stated that the
Treaty must be interpreted against the backdrop of customary
international law, and that international abductions are “so
clearly prohibited in international law” that there was no
reason to include such a clause in the Treaty itself. He cited
the UN Charter and Charter of the organization of American
Page 17 of 73
States displaying the clear prohibition in international law.
Respondent further argues that the Treaty acts as a
prohibition against the US government exercising its police
power in the territory of another state, which if committed will
be in violation of a general principle of international law.
 However, general principles of international law
provide no basis for interpreting the Treaty to include
an implied term prohibiting abductions. It would go
beyond established precedent to draw such an
inference. In Raushcher, it was the practice of nations
with regard to extradition treaties that formed the
basis for Court’s ruling. But for the respondent’s case,
no practice or precedence is established. It uses only
the most general of international law principles to
support its claims. He is correct that the abduction
was “shocking” and in violation of international law
principles but the decision whether he should be
returned to Mexico is a matter outside of the treaty.
 US v Rauscher: US and England
executed Webster-Ashburton Treaty in
1842 which governed extraditions
between the two nations. There it was
established that defendant Rauscher, who
has been brought within the jurisdiction of
the US court by virtue of proceedings
under the extradition treaty, can only be
tried for the offense with which he is
charged in the proceedings for his
extradition (Doctrine of Specialty), until
after his release or trial upon such charge,
to return to the country from whose
asylum he had been forcibly taken under
those proceedings.
 There are many actions that could be taken by US
that would violate another state’s territorial intergrity,
like waging war, but this act cannot be contended as a
violation of an extradition treaty between two nations.
WoN a criminal defendant, abducted to the US from a nation with which it has
an extradition treaty, thereby acquires a defense to the jurisdiction of US
courts? NO.
 The court ruled that there has been no violation of the extradition
treaty between US and Mexico therefore the Ker ruling is fully
applicable.
  Frisbie v Collins: Ker ruling was established as the controlling
jurisprudence. The court in this case upheld the validity of its
jurisdiction over the defendant when he was kidnapped in Chicago by
Michigan officers and brought to trial in Michigan.
o Due process of law is satisfied when one present in court is
convicted of crime after having been fairly apprised of the
charges against him and after a fair trial in accordance with
constitutional procedural safeguards.
o Nothing in the Constitution requires a court to permit a guilty
person rightfully convicted to escape justice because he was
brought to trial against his will.
DISPOSITION: CA decision is REVERSED and case is remanded for further
proceedings.
Stevens, J. in which Blackmun and O’Connor join, DISSENTING
 The extradition treaty with Mexico is a comprehensive document
covering the extraditable offenses. Art 2 of the same covers murder,
which was committed by Alavarez-Machain, as an extraditable
offense. Furthermore, Art 9 expressly provides that “Neither
contracting party is bound to deliver up its own nationals and If it does
not do so, it shall submit the case to its competent authorities for
prosecution”. Both these provisions would be senseless if
government’s forcible kidnapping will be ruled permissible. Several
other provisions would serve little purpose if the requesting country
could simply kidnap the person.
 requiring “sufficient” evidence to grant extradition (Art. 3)
 withholding extradition for political or military offenses (Art. 5)
 withholding extradition when the person sought has already
been tried (Art. 6)
 withholding extradition when the statute of limitations for the
crime has lapsed (Art. 7)
 and granting the requested country discretion to refuse to
extradite an individual who would face the death penalty in the
requesting country (Art.8),
 Even if the treaty has no express prohibition against forcible
abductions in the territory of another, the Court cannot construe the
treaty as allowing that kind of behavior. Otherwise, if the US, for
example, thought it more expedient to torture or simply execute a
person rather than to attempt extradition, these options would be
equally available because they too are not explicitly prohibited by the
Treaty. Such interpretation of the court is not in line with the general
principles of international law.
Page 18 of 73
 The Ashburton Treaty in the Rauscher case was far less
comprehensive compared to the US-Mexico extradition treaty.
However, the court still ruled in the former that the implied covenant
not to prosecute for an offense different for which extradition had been
granted, would have to be sustained. In the case at bar, the rule
against invading territorial integrity is far clearer than the implied
covenant in the Ashburton Treaty, therefore a decision parallel to the
Rauscher case should be granted.
 The Majority opinion failed differentiate between the conduct of private
citizens, which does not violate any treaty obligation, and conduct
expressly authorized by the Government, which constitutes a flagrant
violation of international law. This is important as displayed by the
case of Cook v US.
 Cook v US:
 US executed a Prohibition Treaty with Great Britain
that authorized American agents to board British
vessels to ascertain whether they are engaged in
importing alcoholic beverages.
 A British vessel was boarded 11.5 miles off the coast
of US and was found to be carrying liquor, then was
taken into port. The Collector of Customs gave out a
penalty and tried to claim it by issuing libels.
 The court held that seizure was not authorized by the
treaty (10-mile limit), disregarding government’s
argument that illegality of seizure if immaterial since
the court’s jurisdiction was supported by possession
(like in the Ker doctrine). Court averred that seizure
will be valid if a private party without the blessing of
the gov’t was the one who conducted it. In this case,
government had no authority to seize by virtue of the
treaty because of the imposed territorial limitation. In
Ker v US, the kidnapping was done by the officer
not in his official capacity. Government did not
sanction his act, neither was there any pretense of
authority under the Treaty.
 The court must not disregard the Rule of Law. It is true that the
respondent participated in the brutal murder of an American law
enforcement agent. The Executive branch of government, in its wish to
reinterpret the Treaty, must not influence the Court’s interpretation.
The Court has the supreme duty to render judgment evenly and
dispassionately, as the Court’s precedents are looked upon by other
tribunals which they are sure to emulate.
Sosa v. Alvarez-Machain (2004)
FACTS:
 In 1985, a Drug Enforcement Administration (DEA) agent, Enrique
Caramena-Salazar, was captured on assignment in Mexico and taken
to a house in Guadalajara, where he was tortured over the course of a
2-day interrogation, then murdered.
 Plaintiff Humberto Alvarez-Machain, a physician, is believed to have
been present at the house and acted to prolong the agent's life in
order to extend the interrogation and torture.
 In 1990, a federal grand jury indicted Alvarez for the torture and
murder of Caramena. A warrant of arrest was issued.
 The US sought the help of the Mexican government for help in getting
Alvarez into the US. Its efforts were unsuccessful.
 Thus the DEA approved a plan to hire Mexican nationals to seize
Alvarez and bring him to the US for arrest and trial.
 Petitioner Jose Francisco Sosa was among the Mexicans who
abducted Alvarez from his house. He was taken to El Paso, Texas on
a private plane. Upon arrival, he was arrested by federal officers.
 Alvarez moved to dismiss the indictment on the ground of “outrageous
governmental conduct.” He likewise claimed that his seizure violated
the US-Mexico extradition treaty. This was initially granted by the
District Court but was ultimately reversed by the US SC.
o HELD: Alvarez’s forcible seizure did not affect the jurisdiction
of a federal court.
 Trial commenced in 1992. Alvarez moved for a judgment of acquittal.
His motion was granted.
 Alvarez returned to Mexico in 1993 and commenced a civil action.
o He sued Sosa, one Mexican DEA operative, five unnamed
Mexican civilians, the US, and four DEA agents.
o He sought damages from the US under the Federal Tort
Claims Act (FTCA).
 Allegation: false arrest
 Pertinent provision: “for… personal injury… caused by
the negligent or wrongful act or omission of any
employee of the Government while acting within the
scope of his office or employment.”
o With regard to Sosa, Alvarez’s cause of action was based on
the Alien Tort Statute (ATS).
 Allegation: violation of the law of nations
 Pertinent provision: “The district courts shall have
original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or
a treaty of the United States.”
 District Court:
o Dismissed the claim against the US Government, but
Page 19 of 73
o Awarded summary judgment and USD25,000 in damages to
Alvarez on the ATS claim.
 Circuit Court of Appeals (division):
o Affirmed the award in the ATS claim, but
o Reversed the dismissal of the FTCA claim.
 Circuit Court of Appeals (en banc): AFFIRMED.
o As to the ATS claim: “The ATS not only provides federal
courts with subject matter jurisdiction, but also creates a
cause of action for an alleged violation of the law of nations.”
 Relied on the “clear and universally recognized norm
prohibiting arbitrary arrest and detention.”
 Thus, Alvarez’s arrest amounted to a tort in violation
of international law.
o As to the FTCA claim: “The DEA had no authority to effect
Alvarez’s arrest and detention in Mexico.”
 Thus the US is liable to him under California law for
the tort of false arrest.
ISSUES + RULING:
Is the US liable for tortious arrest under the FTCA? NO. The liability asserted
here falls within the FTC exception to waiver of sovereign immunity for
claims “arising in a foreign country.”
 Purpose of the FTCA (Richards v. US): “to remove the sovereign
immunity of the United States from suits in tort and, with certain
specific exceptions, to render the Government liable in tort as a private
individual would be under like circumstances.”
 Limitations to waiver of sovereign immunity: No waiver as to—
o Any claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter;
o Any claim for damages caused by the imposition or
establishment of a quarantine by the United States;
o Any claim arising from the activities of the Panama Canal
Company; and
o Any claim arising in a foreign country.
 Under the decision of the CA, it conceded that, on its face, Alvarez’s
arrest came within the above exception. However, it allowed the action
to proceed under what has come to be known as the headquarters
doctrine.
o Under said doctrine, the foreign country exception does not
apply where the US is being sued “for acts or omissions
occurring here which have their operative effect in another
country.”
o Headquarters claims “typically involve allegations of negligent
guidance in an office within the United States of employees
 who cause damage while in a foreign country, or of activities
which take place within a foreign country.”
o Since Alvarez's abduction in Mexico was the direct result of
wrongful acts of planning and direction by DEA agents located
in California, “Alvarez's abduction fits the headquarters
doctrine like a glove.”
o Thus, the court held that the claim did not “arise” in a foreign
country.
 US SC rejects the headquarters doctrine.
o It will virtually always be possible to assert that the negligent
activity that injured the plaintiff [abroad] was the consequence
of faulty training, selection or supervision—or even less than
that, lack of careful training, selection or supervision—in the
United States.
o The headquarters doctrine threatens to swallow the foreign
country exception whole, certainly at the pleadings stage.
o In order for the headquarters doctrine to apply, there must be
an exclusive proximate cause relationship between the
domestic behavior and the foreign harm/injury. Here, it cannot
be concluded that the exclusive proximate cause of the harm
suffered by Alvarez was the planning of DEA agents in
California; the acts of Sosa and the others in Mexico were just
as surely proximate causes as well.
o SC believes that Congress adopted the foreign country
exception specifically to bar the application of the
headquarters doctrine.
 What does “arising in” refer to?
 Interpreting cases decided around the time the FTCA
was passed, it refers to “the jurisdiction where the last
act necessary to establish liability occurred” or “the
jurisdiction in which injury was received.”
 The expectation is that application of the headquarters
doctrine would in fact 
result in a substantial number
of cases applying the very foreign law the foreign
country exception was meant to avoid.
Is Alvarez entitled to recover damages from Sosa under the ATS? NO.
 ATS vested jurisdiction on federal courts to hear claims in a very
limited category defined by the law of nations and recognized by
common law.
 SC does not believe, however, that the limited, implicit sanction to
entertain the handful of international law cum common law claims
understood in 1789 should be taken as authority to recognize the right
of action asserted by Alvarez here.
Page 20 of 73
 ATS is a “legal Lohengrin”; no one knows where it came from. It was
passed as part of the Judiciary Act of 1789:
“Federal district courts shall also have cognizance, concurrent with the courts
of the several States, or the circuit courts, as the case may be, of all causes
where an alien sues for a tort only in violation of the law of nations or a treaty
of the United States.”
 Alvarez’s claim that the ATS was intended not only as a jurisdictional
grant, but as authority for the creation of a new cause of action for
torts in violation of international law is implausible.
 On the other hand, the amici curiae in this case are of the opinion that
federal courts could entertain claims once the jurisdictional grant was
on the books, because torts in violation of the law of nations would
have been recognized within the common law of the time.
o The First Congress passed the ATS with the intention of giving
it a practical effect. . It would have been passing strange for
Ellsworth and this very Congress to vest federal courts
expressly with jurisdiction to entertain civil causes brought by
aliens alleging violations of the law of nations, but to no effect
whatever until the Congress should take further action.
o Congress intended the ATS to furnish jurisdiction for a
relatively modest set of actions alleging violations of the law of
nations. Three primary offenses:
 Offenses against ambassadors;
 Violations of safe conduct;
 Individual actions arising out of prize captures and
piracy.
o Violations of the law of nations are principally incident to
whole states or nations and not individuals seeking relief in
court.
 “Accordingly, we think courts should require any claim based on the
present-day law of nations to rest on a norm of international character
accepted by the civilized world and defined with a specificity
comparable to the features of the 18th-century paradigms we have
recognized. This requirement is fatal to Alvarez's claim.”
 His claim must be gauged against the current state of international
law. In support of his claim, Alvarez cites:
o The Universal Declaration of Human Rights (Declaration); and
o The International Covenant of Civil and Political Rights
(Covenant).
 It is Alvarez’s position that his arrest was arbitrary and forbidden by
international law not because it infringed the prerogatives of Mexico,
but because no applicable law authorized it.
 o He claims that there is a general prohibition against arbitrary
detention, such that it has become a binding customary norm
today.
o However, he cites nothing to justify the federal courts in taking
his broad rule as the predicate for a federal lawsuit.
o His rule would support a cause of action in federal court for
any arrest, anywhere in the world, unauthorized by the law of
the jurisdiction in which it took place, and would create a
cause of action for any seizure of an alien in violation of the
Fourth Amendment.
o Clearly, Alvarez failed to provide support for his proposed rule.
Any credible invocation of a principle against arbitrary
detention that the civilized world accepts as binding customary
international law requires a factual basis beyond relatively
brief detention in excess of positive authority.
 It is enough to hold that a single illegal detention of less than a day,
followed by the transfer of custody to lawful authorities and a prompt
arraignment, violates no norm of customary international law so well
defined as to support the creation of a federal remedy.
DISPOSITION: Reversed.
Kiobel v. Royal Dutch Petroleum Company (2013)
FACTS:
 Petitioners, a group of Nigerian nationals residing in the United States,
filed suit in federal court against cer- tain Dutch, British, and Nigerian
corporations.
o Petitioners sued under the Alien Tort Statute, 28 U. S. C.
§1350, alleging that the corporations aided and abetted the
Nigerian Government in committing violations of the law of
nations in Nigeria.
 Petitioners were residents of Ogoniland, an area of 250 square
miles located in the Niger delta area of Nigeria and populated by
roughly half a million people.
 When the complaint was filed, respondents Royal Dutch Petroleum
Company and Shell Transport and Trading Company, p.l.c., were
holding companies incorporated in the Netherlands and England,
respectively.
 Their joint subsidiary, respondent Shell Petroleum Development
Company of Nigeria, Ltd. (SPDC), was incorporated in Nigeria, and
engaged in oil exploration and production in Ogoniland.
 According to the complaint, after concerned residents of Ogoniland
began protesting the environmental effects of SPDC’s practices,
Page 21 of 73
respondents enlisted the Nigerian Government to violently
suppress the burgeoning demonstrations.
o Throughout the early 1990’s, the complaint alleges, Nigerian
military and police forces attacked Ogoni vil- lages, beating,
raping, killing, and arresting residents and destroying or
looting property.
o Petitioners further allege that respondents aided and
abetted these atrocities by, among other things, providing
the Nigerian forces with food, transportation, and
compensation, as well as by al- lowing the Nigerian military to
use respondents’ property as a staging ground for attacks.
 Following the alleged atrocities, petitioners moved to the United
States where they have been granted political asylum and now reside
as legal residents.
 They filed suit in the United States District Court for the Southern
District of New York, alleging jurisdiction under the Alien Tort
Statute and requesting relief under customary international law.
o According to petitioners, respondents violated the law of
nations by aiding and abetting the Nigerian Government in
committing
 (1) extrajudicial killings;
 (2) crimes against humanity;
 (3) torture and cruel treatment;
 (4) arbitrary arrest and detention;
 (5) violations of the rights to life, liberty, security, and
association;
 (6) forced exile; and
 (7) property destruction.
The ATS provides, in full, that:
“[t]he district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the
United States.” 28 U. S. C. §1350.
 The District Court dismissed the first, fifth, sixth, and
seventh claims (please refer to the enumeration above)
o The court held that facts alleged to support those
claims did not give rise to a violation of the law of
nations.
o On the other hand, the court denied respondents’
motion to dismiss with respect to the remaining
claims.
 The Second Circuit dismissed the entire complaint, reasoning
that the law of nations does not recognize corporate liability.
  facilities necessary to make fairly such an important policy
ISSUES + RULING:
MAIN ISSUE: Whether and under what circumstances courts may recognize a
cause of action under the Alien Tort Statute, for violations of the law of nations
occurring within the territory of a sovereign other than the United States.—
Only when it is expressly laid down by statute. This is in accordance with
the presumption against extraterritoriality.
 Passed as part of the Judiciary Act of 1789, the ATS was invoked
twice in the late 18th century, but then only once more over the next
167 years.
 The statute provides district courts with jurisdiction to hear certain
claims, but does not expressly provide any causes of action.
 We held in Sosa v. Alvarez-Machain, however, that the First
Congress did not intend the provision to be “stillborn.” The grant of
juris- diction is instead “best read as having been enacted on the
understanding that the common law would provide a cause of action
for [a] modest number of international law violations.”
o We thus held that federal courts may “recognize private claims
[for such violations] under federal common law.
o The Court in Sosa rejected the plaintiff ’s claim in that case for
“arbitrary arrest and detention,” on the ground that it failed to
state a violation of the law of nations with the requisite
“definite content and acceptance among civilized nations.”
 The question here is not whether petitioners have stated a proper
claim under the ATS, but whether a claim may reach conduct
occurring in the territory of a foreign sovereign.
o Respondents contend that claims under the ATS do not,
relying primarily on a canon of statutory interpretation
known as the presumption against extraterritorial
application.
 That canon provides that “[w]hen a statute gives no
clear indication of an extraterritorial application, it has
none,” and reflects the “presumption that United
States law governs domestically but does not rule the
world,”.
 This presumption “serves to protect against unintended clashes
between our laws and those of other nations which could result in
international discord.”
 As this Court has explained:
o “For us to run interference in . . . a delicate field of
international relations there must be present the affirmative
intention of the Congress clearly expressed. It alone has the
Page 22 of 73
decision where the possibilities of international discord are so
evident and retaliative action so certain.”
o The presumption against extraterritorial application helps
ensure that the Judiciary does not erroneously adopt an
interpretation of U. S. law that carries foreign policy
consequences not clearly intended by the political branches.
 The ATS, on the other hand, is “strictly jurisdictional.”
o It does not directly regulate conduct or afford relief. It instead
allows federal courts to recognize certain causes of action
based on sufficiently definite norms of international law.
o But we think the principles underlying the canon of
interpretation similarly constrain courts considering causes of
action that may be brought under the ATS.
 This Court in Sosa repeatedly stressed the need for judicial caution in
considering which claims could be brought under the ATS, in light of
foreign policy concerns.
o As the Court explained, “the potential [foreign policy]
implications . . . of recognizing . . . . causes [under the ATS]
should make courts particularly wary of impinging on the
discretion of the Legislative and Executive Branches in
managing foreign affairs.”
 These concerns are not diminished by the fact that Sosa limited
federal courts to recognizing causes of action only for alleged
violations of international law norms that are “ ‘specific, universal, and
obligatory.’ ”
 The principles underlying the presumption against
extraterritoriality thus constrain courts exercising their power
under the ATS.
Petitioners contend that even if the presumption applies, the text,
history, and purposes of the ATS rebut it for causes of action brought
under that statute.
 It is true that Congress, even in a jurisdictional provision, can indicate
that it intends federal law to apply to conduct occurring abroad.
 But to rebut the presumption, the ATS would need to evince a “clear
indication of extraterritoriality.
 To begin, nothing in the text of the statute suggests that Congress
intended causes of action recognized under it to have extraterritorial
reach.
o The ATS covers actions by aliens for violations of the law of
nations, but that does not imply extraterritorial reach—such
violations affecting aliens can occur either within or outside the
United States.
 o Nor does the fact that the text reaches “any civil action”
suggest application to torts committed abroad; it is well
established that generic terms like “any” or “every” do
not rebut the presumption against extraterritoriality.
Petitioners make much of the fact that the ATS provides jurisdiction over
civil actions for “torts” in violation of the law of nations. They claim that
in using that word, the First Congress “necessarily meant to provide for
jurisdic- tion over extraterritorial transitory torts that could arise on
foreign soil.”
 Petitioners, cited the common-law doctrine that allowed courts to
assume jurisdiction over such “transitory torts,” including actions for
personal injury, arising abroad.
 Under the transitory torts doctrine, however, “the only
justification for allowing a party to recover when the cause of
action arose in another civilized jurisdiction is a well founded
belief that it was a cause of action in that place.”
 The question under Sosa is not whether a federal court has jurisdiction
to entertain a cause of action provided by foreign or even international
law.
o The question is instead whether the court has authority to
recognize a cause of action under U. S. law to enforce a norm
of international law.
o The reference to “tort” does not demonstrate that the First
Congress “necessarily meant” for those causes of action to
reach conduct in the territory of a foreign sovereign.
o In the end, nothing in the text of the ATS evinces the requisite
clear indication of extraterritoriality.
 Nor does the historical background against which the ATS was
enacted overcome the presumption against application to
conduct in the territory of another sovereign.
o We explained in Sosa that when Congress passed the ATS,
“three principal offenses against the law of nations” had been
identified by Blackstone: violation of safe conducts,
infringement of the rights of ambassadors, and piracy.
o The first two offenses have no necessary extraterritorial
application. Indeed, Blackstone— in describing them—did so
in terms of conduct occurring within the forum nation.
 Two notorious episodes involving violations of the law of nations
occurred in the United States shortly before passage of the ATS.
Each concerned the rights of ambassadors, and each involved
conduct within the Union.
Page 23 of 73
o In 1784, a French adventurer verbally and physically
assaulted Francis Barbe Marbois—the Secretary of the
French Legion—in Philadelphia. The assault led the French
Minister Plenipotentiary to lodge a formal protest with the
Continental Congress and threaten to leave the country unless
an adequate remedy were provided.
o And in 1787, a New York constable entered the Dutch
Ambassador’s house and arrested one of his domestic
servants.
 At the request of Secretary of Foreign Affairs John
Jay, the Mayor of New York City arrested the
constable in turn, but cautioned that because “ ‘neither
Congress nor our [State] Legislature have yet passed
any act respecting a breach of the privileges of
Ambassadors,’ ” the extent of any available relief
would depend on the common law.
 The two cases in which the ATS was invoked shortly after its passage
also concerned conduct within the territory of the United States.
 These prominent contemporary examples—immediately before and
after passage of the ATS—provide no support for the proposition that
Congress expected causes of action to be brought under the statute
for violations of the law of nations occurring abroad.
Petitioners contend that because Congress surely intended the ATS to
provide jurisdiction for actions against pirates, it necessarily anticipated
the statute would apply to con- duct occurring abroad.
 The third example of a violation of the law of nations familiar to the
Congress that enacted the ATS was piracy. Piracy typically occurs on
the high seas, beyond the territorial jurisdiction of the United States or
any other country.
o This Court has generally treated the high seas the same as
foreign soil for purposes of the presumption against
extraterritorial application.
o Piracy: (“The offence of piracy, by common law, consists of
committing those acts of robbery and depredation upon the
high seas, which, if com- mitted upon land, would have
amounted to felony there”)
 Applying U. S. law to pirates, however, does not typically impose the
sovereign will of the United States onto conduct occurring within the
territorial jurisdiction of another sovereign, and therefore carries less
direct foreign policy consequences.
 Pirates were fair game wherever found, by any nation, because they
generally did not operate within any jurisdiction.
  We do not think that the existence of a cause of action against
them is a sufficient basis for concluding that other causes of
action under the ATS reach conduct that does occur within the
territory of another sovereign; pirates may as well be a category
unto themselves.
Petitioners also point to a 1795 opinion authored by Attorney General
William Bradford.
 In 1794, in the midst of war between France and Great Britain, and
notwithstanding the American official policy of neutrality, several U. S.
citizens joined a French privateer fleet and attacked and plundered the
British colony of Sierra Leone.
 In response to a protest from the British Ambassador, Attorney
General Bradford responded as follows:
o So far . . . as the transactions complained of originated or took
place in a foreign country, they are not within the cognizance
of our courts; nor can the actors be legally prosecuted or
punished for them by the United States. But crimes
committed on the high seas are within the jurisdiction of
the . . . courts of the United States; and, so far as the
offence was commit- ted thereon, I am inclined to think
that it may be legally prosecuted in . . . those courts . . . .
o But some doubt rests on this point, in consequence of the
terms in which the [applicable criminal law] is expressed.
o But there can be no doubt that the company or
individuals who have been injured by these acts of
hostility have a remedy by a civil suit in the courts of the
United States; jurisdiction being expressly given to these
courts in all cases where an alien sues for a tort only, in
violation of the laws of nations, or a treaty of the United
States . . . .”
 Petitioners read the last sentence as confirming that “the
Founding generation understood the ATS to apply to law of
nations violations committed on the territory of a foreign
sovereign.”
 Respondents counter that when Attorney General Bradford
referred to “these acts of hostility,” he meant the acts only
insofar as they took place on the high seas, and even if his
conclusion were broader, it was only because the applicable
treaty had extraterritorial reach.
 Court’s Answer: Attorney General Bradford’s opinion defies a
definitive reading and we need not adopt one here. Whatever its
Page 24 of 73
precise meaning, it deals with U. S. citizens who, by participating in an
attack taking place both on the high seas and on a foreign shore,
violated a treaty between the United States and Great Britain. The
opinion hardly suffices to counter the weighty concerns
underlying the presumption against extraterritoriality.
 Finally, there is no indication that the ATS was passed to make
the United States a uniquely hospitable forum for the
enforcement of international norms.
o As Justice Story put it, “No nation has ever yet pretended to
be the custos morum of the whole world . . ..”
o It is implausible to suppose that the First Congress wanted
their fledgling Republic—struggling to receive international
recognition—to be the first.
o Indeed, the parties offer no evidence that any nation, meek or
mighty, presumed to do such a thing.
o Moreover, accepting petitioners’ view would imply that other
nations, also applying the law of nations, could hale our
citizens into their courts for alleged violations of the law of
nations occurring in the United States, or anywhere else in the
world.
o The presumption against extraterritoriality guards against
our courts triggering such serious foreign policy
consequences, and in- stead defers such decisions, quite
appropriately, to the political branches.
Court’s Conclusion:
 We therefore conclude that the presumption against extraterritoriality
applies to claims under the ATS, and that nothing in the statute
rebuts that presumption. “[T]here is no clear indication of
extraterritoriality here,” ), and petitioners’ case seeking relief for
violations of the law of nations occurring outside the United States is
barred.
 On these facts, all the relevant conduct took place out- side the United
States. And even where the claims touch and concern the territory of
the United States, they must do so with sufficient force to displace the
presumption against extraterritorial application.
 Corporations are often present in many countries, and it would
reach too far to say that mere corporate presence suffices.
 If Congress were to determine otherwise, a statute more specific
than the ATS would be required.
DISPOSITION: The judgment of the Court of Appeals is affirmed.
JUSTICE KENNEDY, concurring.

 The opinion for the Court is careful to leave open a number of
significant questions regarding the reach and interpretation of the Alien
Tort Statute.
 In my view that is a proper disposition.
 Many serious concerns with respect to human rights abuses
committed abroad have been addressed by Congress in statutes such
as the Torture Victim Protection Act of 1991 (TVPA), note following 28
U. S. C. §1350, and that class of cases will be determined in the future
according to the detailed statu- tory scheme Congress has enacted.
 Other cases may arise with allegations of serious violations of
international law principles protecting persons, cases covered neither
by the TVPA nor by the reasoning and holding of today’s case; and in
those disputes the proper implementation of the presumption against
extraterritorial application may require some further elaboration and
explanation.
 outside the United States” and “where the claims” do not
JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring.
 I agree that when Alien Tort Statute (ATS) “claims touch and concern
the territory of the United States, they must do so with sufficient force
to displace the presumption against extraterritorial application.”
 This formulation obviously leaves much unanswered, and perhaps
there is wisdom in the Court’s preference for this narrow approach.
 I write separately to set out the broader standard that leads me to
the conclusion that this case falls within the scope of the
presumption.
 Morrison v. National Australia Bank Ltd: “the presumption against
extraterritorial application would be a craven watchdog indeed if it
retreated to its kennel whenever some domestic activity is involved in
the case.”
 The Court’s decision in Sosa v. Alvarez-Machain, makes clear that
when the ATS was enacted, “congressional concern was “ ‘focus[ed]
on the “three principal offenses against the law of nations” that had
been identi- fied by Blackstone: violation of safe conducts,
infringement of the rights of ambassadors, and piracy
o The Court therefore held that “federal courts should not
recognize private claims under federal common law for
violations of any international law norm with less definite
content and acceptance among civilized nations than the
historical paradigms familiar when [the ATS] was enacted.”
o In other words, only conduct that satisfies Sosa’s
requirements of definiteness and ac- ceptance among civilized
nations can be said to have been “the ‘focus’ of congressional
concern,” when Congress enacted the ATS.
Page 25 of 73
 As a result, a putative ATS cause of action will fall within the
scope of the presumption against extraterritoriality—and will
therefore be barred—unless the domestic conduct is sufficient to
violate an international law norm that satisfies Sosa’s
requirements of definiteness and acceptance among civilized
nations.
JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE
SOTOMAYOR and JUSTICE KAGAN join, concurring in the judgment.
 I agree with the Court’s conclusion but not with its reasoning.
 The Court sets forth four key propositions of law:
o First, the “presumption against extraterritoriality applies to
claims under” the Alien Tort Statute.
o Second, “nothing in the statute rebuts that presumption.”
o Third, there “is no clear indication of extra- territoria[l
application] here,” where “all the relevant conduct took place
“touch and concern the territory of the United States . . . with
sufficient force to displace the presumption.”
o Fourth, that is in part because “[c]orporations are often
present in many countries, and it would reach too far to say
that mere corporate presence suffices.”
 Unlike the Court, I would not invoke the presumption against
extraterritoriality.
 Rather, guided in part by principles and practices of foreign relations
law, I would find jurisdiction under this statute where:
o (1) the alleged tort occurs on American soil,
o (2) the defendant is an American national, or
o (3) the defendant’s conduct substantially and adversely affects
an important American national interest, and that includes a
distinct interest in preventing the United States from becoming
a safe harbor
 In Sosa the Court specified that the Alien Tort Statute (ATS), when
enacted in 1789, “was intended as jurisdictional.”
o We added that the statute gives today’s courts the power to
apply certain “judge-made” damages law to victims of certain
foreign affairs-related misconduct, including “three specific
offenses” to which“Blackstone referred,” namely “violation of
safe conducts, infringement of the rights of ambassadors, and
piracy.”
o We held that the statute provides today’s federal judges with
the power to fashion “a cause of action” for a “modest number”
of claims, “based on the present-day law of nations,” and
which “rest on a norm of international character accepted by
 the civilized world and defined with a specificity comparable to
the features” of those three “18th-century paradigms.”
o We further said that, in doing so, a requirement of
“exhaust[ion]” of “remedies” might apply.
 Adjudicating any such claim must, in my view, also be consistent with
those notions of comity that lead each nation to respect the sovereign
rights of other nations by limiting the reach of its own laws and their
enforcement.
 Recognizing that Congress enacted the ATS to permit recovery of
damages from pirates and others who violated basic international
law norms as understood in 1789, Sosa essentially leads today’s
judges to ask: Who are today’s pirates?
 We provided a framework for answering that question by
setting down principles drawn from international norms and
designed to limit ATS claims to those that are similar in character
and specificity to piracy.
 In this case we must decide the extent to which this jurisdictional
statute opens a federal court’s doors to those harmed by activities
belonging to the limited class that Sosa set forth when those activities
take place abroad. To help answer this question here, I would refer
both to Sosa and, as in Sosa, to norms of international law.
 In my view the majority’s effort to answer the question by
referring to the “presumption against extraterritoriality” does not
work well. That presumption “rests on the perception that
Congress ordinarily legislates with respect to domestic, not
foreign matters.”
 The ATS, however, was enacted with “foreign matters” in mind.
The statute’s text refers explic- itly to “alien[s],” “treat[ies],” and
“the law of nations.”
 The statute’s purpose was to address “violations of the law of nations,
admitting of a judicial remedy and at the same time threatening
serious con- sequences in international affairs.”
 And at least one of the three kinds of activities that we found to fall
within the statute’s scope, namely piracy, ibid., normally takes place
abroad.
 The majority cannot wish this piracy example away by
emphasizing that piracy takes place on the high seas.
o That is because the robbery and murder that make up piracy
do not normally take place in the water; they take place on a
ship. And a ship is like land, in that it falls within the jurisdiction
of the nation whose flag it flies.
o Indeed, in the early 19th century Chief Justice Marshall
described piracy as an “offenc[e] against the nation under
whose flag the vessel sails, and within whose particular
jurisdiction all on board the vessel are.”
Page 26 of 73
 The majority nonetheless tries to find a distinction between piracy at
sea and similar cases on land. It writes, “Applying U. S. law to pirates .
. . does not typically impose the sovereign will of the United States
onto conduct occurring within the territorial jurisdiction of another
sovereign and therefore carries less direct foreign policy
consequences.”
o But, as I have just pointed out, “[a]pplying U. S. law to pirates”
does typically involve applying our law to acts taking place
within the jurisdiction of another sovereign.
o Norcan the majority’s words “territorial jurisdiction” sensibly
distinguish land from sea for purposes of isolating adverse
foreign policy risks, as the Barbary Pirates, the War of 1812,
the sinking of the Lusitania, and the Lockerbie bombing make
all too clear.
 The majority also writes, “Pirates were fair game wherever found, by
any nation, because they generally did not operate within any
jurisdiction.”
o I very much agree that pirates were fair game “wherever
found.” Indeed, that is the point. That is why we asked, in
Sosa, who are today’s pirates?
o Certainly today’s pirates include torturers and perpetrators of
genocide. And today, like the pirates of old, they are “fair
game” where they are found.
o Like those pirates, they are “common enemies of all man- kind
and all nations have an equal interest in their apprehension
and punishment.”
 In applying the ATS to acts “occurring within the terri- tory of a[nother]
sovereign,”
 I would assume that Congress intended the statute’s jurisdictional
reach to match the statute’s underlying substantive grasp.
 That grasp, de- fined by the statute’s purposes set forth in Sosa,
includes compensation for those injured by piracy and its modern- day
equivalents, at least where allowing such compensation avoids
“serious” negative international “consequences” for the United States.
 And just as we have looked to established international substantive
norms to help determine the statute’s substantive reach so we should
look to international jurisdictional norms to help determine the statute’s
jurisdictional scope.
 The Restatement (Third) of Foreign Relations Law is helpful.
 Section 402 recognizes that, subject to §403’s “rea- sonableness”
requirement, a nation may apply its law not only (1) to “conduct” that
“takes place [or to per- sons or things] within its territory” but also (2) to
the “activities, interests, status, or relations of its nationals outside as
well as within its territory,” (3) to “conduct outside its territory that has
or is intended to have sub- stantial effect within its territory,” and
 (4) to certain foreign “conduct outside its territory . . . that is directed
against the security of the state or against a limited class of other state
interests.”
 Considering these jurisdictional norms in light of both the ATS’s basic
purpose (to provide compensation for those
 injured by today’s pirates) and Sosa’s basic caution (to avoid
international friction), I believe that the statute
 provides jurisdiction where:
o (1) the alleged tort occurs on American soil,
o (2) the defendant is an American national, or
o (3) the defendant’s conduct substantially and adversely affects
an important American national interest, and that includes a
distinct interest in preventing the United States from
becoming a safe harbor (free of civil as well as criminal
liability) for a torturer or other common enemy of mankind.
 I would interpret the statute as providing jurisdiction only where distinct
American interests are at issue. Doing so reflects the fact that
Congress adopted the present statute at a time when, as Justice Story
put it, “No nation ha[d] ever yet pretended to be the custos morum of
the whole world.”
 That restriction also should help to minimize international
friction. Further limiting principles such as exhaustion, forum
non conveniens, and comity would do the same.
 Nothing in the statute or its history suggests that our courts should turn
a blind eye to the plight of victims in that “handful of heinous actions.”
 To the contrary, the statute’s language, history, and purposes
suggest that the statute was to be a weapon in the “war” against
those modern pirates who, by their conduct, have “declar[ed] war
against all mankind.”
 (Just because its about the Philippines) In Marcos, the plaintiffs were
nationals of the Philip- pines, the defendant was a Philippine national,
and the alleged wrongful act, death by torture, took place abroad. In re
Estate of Marcos, Human Rights Litigation
 Applying these jurisdictional principles to this case, however, I
agree with the Court that jurisdiction does not lie.
o The defendants are two foreign corporations.
o Their shares, like those of many foreign corporations, are
traded on the New York Stock Exchange.
o Their only presence in the United States consists of an office
in New York City (actually owned by a separate but affiliated
company) that helps to explain their business to potential
investors.
 The plaintiffs are not United States nationals but nationals of other
nations. The conduct at issue took place abroad. And the plaintiffs
allege, not that the defendants directly engaged in acts of torture,
Page 27 of 73
genocide, or the equiva- lent, but that they helped others (who are not
American nationals) to do so.
 Under these circumstances, even if the New York office were a
sufficient basis for asserting general jurisdiction, it would be farfetched
to believe, based solely upon the defendants’ minimal and indirect
American presence, that this legal action helps to vindicate a distinct
American interest, such as in not providing a safe harbor for an
“enemy of all mankind.”
 Thus I agree with the Court that here it would “reach too far to say”
that such “mere corporate presence suffices.”
 I consequently join the Court’s judgment but not its opinion.
State v. Ebrahim (1991)
FACTS:
 Issue is whether or not the trial court had jurisdiction to try and convict
Ebrahim.
 Ebrahim was South African, and in 1962, he became a member of the
military wing of the African National Congress. 1964, he was convicted
of acts of sabotage, sentenced to 15years imprisonment. He was
released 1979, and was restricted by executive order to the
magistrate’s district of Pinetown in Natal, but in 1980, fled to
Swaziland while the restriction was in force.
 1986, he was forcibly abducted in Swaziland by 2alleged members of
the South African Police. He was bound, blindfolded and gagged and
taken across the border into South Africa. He was driven to Pretoria
and questioned about ANC activities. Ebrahim inferred his abductors
to be members of the South African Police, since they were permitted
to pass through an army road blockade without search or questioning.
 Then in Pretoria, Brigadier Jan Cronje, head of the security branch of
the South African Police in the Northern Transvaal, had Ebrahim
brought the police HQ. Ebrahim complained, but was told that his
alleged kidnapping was “purely of academic interest” since he was
already in South Africa.
 Ebrahim was then arrested under section 29 of the Internal Security
Act 74 of 1982.
 He was charged with and convicted by the trial court for treason.
 Ebrahim applied for release, said that his abduction was done by the
SA police, or by agents of SA state. The police denied this. There was
no suggestion made in the application that the government of
Swaziland protested to the South African government over the
abduction.
ISSUE and RULING:

Whether or not the trial court had jurisdiction to try and convict Ebrahim. NO.
EBRAHIM’S CONVICTION AND JUDGMENT ARE SET ASIDE.
 The court said in light of the denials of the police, it must be accepted
that South African Police were not involved in the abduction. But likely
that the abductors were agents of South Africa.This is confirmed by
the failure of the police to disclose the identity of the abductors to the
court despite the fact that their identity must have been known to the
police.
 'Agents' in this context means persons acting under the authority of
some state agency. The world-wide phenomenon, which has become
pronounced since World War II, of secret state action by means of a
variety of agencies, has also occurred in the Republic of South Africa.
(Indeed it is so well known that judicial notice may be taken of it.)
 State involvement in such action is not dependent on knowledge and
approval by the highest authority in the state, since delegation can be
done in the lower levels of administration.
 When action is authorized and executed at such a lower level, the
state is involved and responsible for the consequences, even if such
action is not permitted by the highest state authority. This applies also
to the conduct of the security agencies of the administration. The
abduction of the appellant was clearly the work of one or other of
these agencies, excluding the police.
 Ebrahim argues that the abduction violated international law, which
are part of South African law, so no jurisdiction of trial court to hear the
matter. Ebrahim contested the criminal jurisdiction of the court.
o The court first said that following Nduli and others v. Minister of
Justice 1978 (1) SA 893 (A), if the arrest had been made by South
African police in breach of orders from their commanding officer,
the SA state was not responsible, so no violation of international
law. So the trial was not deprived of jurisdiction.
 But in the present case, Ebrahim was not arrested by police in
Swaziland, but by persons not police who acted under the
authority of “some state agency.”
 The Court examines relevant rules of international law which are part
of SA law:
o The court examines common law. SA common law is Roman-
Dutch law, which has been strongly influenced during past
200years by English common law.
 Roman law
o According to Digest 2.1.20 of Justinian: “One who administers
justice beyond the limits of his territory may be disobeyed with
impunity."
Page 28 of 73
o In Digest 1.18.2: “The governor of a province has authority only
over the people of his own province, and that only while he is in
the province. For the moment he leaves it, he is a private citizen.
Sometimes he has power even in relation to non-residents, if they
have taken direct part in criminal activity. For it is to be found in
the imperial warrants of appointment that he who has charge of
the province shall attend to cleansing the province of evil men; and
no distinction is drawn as to where they may come from."
o Such limitation is understandable, especially when during Roman
times, there were a great number of provinces which were
ethnically and culturally diverse w/ different legal systems which
the Roman Empire allowed to remain largely in force. Because of
that, there was a practice of arrest and extradition of offenders.
 Digest 48.3.7: “It is customary for the governors of provinces
in which an offence has been committed to write to their
colleagues (in whose provinces) the perpetrators are alleged
to live, requesting that they be returned along with those who
are to prosecute them: this is also laid down in a number of
rescripts."
o Legal force was given to this practice in one of the later decrees
(Novellae Constitutiones) of Emperor Justinian.
 Roman-Dutch Law
o To properly understand, recall the structure of the political system
of Netherlands. The Republic of the Netherlands (1581-1795) was
a commonwealth of seven sovereign provinces, each with its own
legislature and courts. The international sovereignty of the
Republic vested in the States-General which had power over
foreign affairs, defence etc.
o One of the foremost Roman-Dutch jurists was Johannes Voet
(1647-1713), a Professor of Law in the University of Leiden.
According to Voet in his Commentarius and Pandectas 48.3.2:
 "So far however must the limits of jurisdiction be observed in
seizing a person accused of crime that, if the judge or his
representative pursues him when he has been caught in the
judge's own area and has taken flight, he nevertheless cannot
seize or pursue further than the point at which the accused
has first crossed the boundaries of the pursuer. A judge is
regarded as a private person in the area of another, and thus
he would in making an arrest in that area be exercising an act
of jurisdiction on another's ground, a thing which the laws do
not allow."
 In support of this view Voet invoked the work of the sixteenth
century Spanish jurist Gomezius (Antonio Gomez) who in his
Commentariorum Variarumque Resolutiones Juris Civilis 3.9.5
 stated that a judge might not order or effect the arrest of a
criminal in another's territory and that if this was done the
arrested person was to be immediately released. By citing
Gomezius on this subject, Voet clearly endorsed this rule for
the purposes of Roman-Dutch law.
o Roman-Dutch jurists who give support to the above rule are:
 (1) Antonius Matthaeus II (1601-1654) Tractatus de
Criminibus 48.14.1.3.
 (2) Dionysius Godefridus van der Keessel (1738-1816)
Praelectiones ad Jus Criminale 48.3.2.
 (3) Johannes van der Linden (1756-1835) Supplementum to
Voet's Commentarius ad Pandectas cited in Gane The
Selective Voet vol 1, p 296, note (b).
 (4) Pieter Bort (1615-1674) Tractaat handelende van Arresten
3.3.4, 15.
 (5) Berlichius (Mathaeus Berlich 1586-1638) Conclusiones
Practicabiles (part 1, concl 74, nn 54-55).
o It is clear that the unlawful removal of a person from one
jurisdiction to another was regarded as an abduction and as a
serious breach of the law in Roman-Dutch law.
o Thus, a conviction and sentence following from such abduction
cannot have legal validity under Roman-Dutch law.
 In 1662, Jan Guillam Bonaarts who, after being properly tried
in one jurisdiction (Brabant), moved to another (Eisch) before
execution of sentence. The Attorney-General of Brabant
initiated extradition proceedings but then dispensed with this
process and ordered his abduction from Eisch. He was
returned to Brabant where the court ordered the execution of
his sentence. The court of Brabant had no jurisdiction to issue
an order for the execution of the sentence of the abducted
Bonaarts.
o It is therefore clear that in Roman-Dutch law a court of one state
had no jurisdiction to try a person abducted from another state by
agents of the former state. The question must now be considered
whether this principle is also part of our present law.
 South African Law
o SA common law still substantially Roman-Dutch. No South African
statute grants or denies jurisdiction to our courts to try a person
abducted from another state and brought into the Republic of
South Africa. Statutory rules dealing with arrest and jurisdiction
contained in section 39 of the Criminal Procedure Act 51 of 1977
and section 19 of the Supreme Court Act 59 of 1959 are not in
conflict with the rules of Roman-Dutch law described above. There
is likewise no decision of our courts that these rules are not part of
our law.
Page 29 of 73
o Similar judgments dealing with the effect of abduction on court
jurisdiction are based on materially different facts, or failed to
consider the question in light of common law.
 In Abrahams v. Minister of Justice 1963 (4) SA 542 (C) the
applicant applied for habeas corpus on the ground that he was
abducted from Bechuanaland (as Botswana was then known)
by members of the South African Police and taken to Gobabis
in South West Africa (now Namibia) where he was duly
arrested. The court decided that where a lawful arrest took
place within a state's own borders the circumstances under
which the accused was brought into the state were irrelevant.
 The principles of the Roman-Dutch law were not raised in
either argument or judgment in this case.
 Said case and the cases cited by it (R v. Robertson 1912
TPD 10 and R v. Officer Commanding Depot Battalion,
Colchester: Ex parte Elliot [1947] 1 All ER 373, where the
court decided that where a lawful arrest took place within
a state's own borders the circumstances under which the
accused was brought into the state were irrelevant)
tackled habeas corpus
 In S v. Ramotse (unreported judgment of the Transvaal
Provincial Division of 14 September 1970) the accused,
an ANC soldier, was abducted from Botswana by
Rhodesian soldiers, taken to Rhodesia, and handed over
to the South African Police. He was then formally arrested
in South Africa. His argument that the court had no
jurisdiction to try him as a result of his unlawful arrest in
Botswana was rejected on the basis of the Abrahams and
Elliot cases. The principles of our common law were not
raised in the judgment and there is no mention of any
Roman-Dutch authority. That decision is therefore of no
value for the purposes of this judgment.
Evaluation (by the court)
 Roman-Dutch law are still part of SA law.
 Several fundamental legal principles are contained in the rules of
international law, namely protection and promotion of human rights,
good inter-state relations and a healthy administration of justice. The
individual must be protected against illegal detention and abduction,
the bounds of jurisdiction must not be exceeded, sovereignty must be
respected, the legal process must be fair to those affected and abuse
of law must be avoided in order to protect and promote the integrity of
the administration of justice. This applies equally to the state.
o When the state is a party to a dispute, as for example in criminal
cases, it must come to court with "clean hands". When the state
 itself is involved in an abduction across international borders, as in
the present case, its hands are not clean.
 Principles of this kind testify to a healthy legal system of high standard.
Signs of this development appear increasingly in the municipal law of
other countries. A telling example is that of United States v. Toscanino
500 F 2d 267, to which Mr Mahomed referred us. The key question for
decision in that case was formulated as follows:
o "In an era marked by a sharp increase in kidnapping activities,
both here and abroad . . . we face the question as we must in the
state of the pleadings, of whether a Federal Court must assume
jurisdiction over the person of a defendant who is illegally
apprehended abroad and forcibly abducted by Government agents
to the United States for the purpose of facing criminal charges
here" (at 271).
o The US court held:
 "Faced with a conflict between the two concepts of due
process, the one being the restricted version found in Ker-
Frisbie and the other the expanded and enlightened
interpretation expressed in more recent decisions of the
Supreme Court, we are persuaded that to the extent that the
two are in conflict, the Ker-Frisbie version must yield.
Accordingly we view due process as now requiring a court to
divest itself of jurisdiction over the person of a defendant
where it has been acquired as the result of the Government's
deliberate, unnecessary and unreasonable invasion of the
accused's constitutional rights. This conclusion represents but
an extension of the well-recognised power of federal courts in
the civil context to decline to exercise jurisdiction over a
defendant whose presence has been secured by force or
fraud" (at 275).
o In the words of Justice Holmes, to allow the Government to benefit
illegally from seized evidence, "reduces the Fourth Amendment to
a form of words" Silverthorne Lumber Co v. United States 251
U.S. 385 (1920). The philosophy behind the rule and possible
broader application of the basic principle underlying it was best
described by Justice Brandeis in an oft-quoted passage from his
dissenting opinion in Olmstead v. United States 277 U.S. 438
(1928), which we have only recently invoked again, see United
States v. Archer 486 F 2d 670, 674-5 (2d Cir 1973):
 'The Court's aid is denied only when he who seeks it has
violated the law in connection with the very transaction as to
which he seeks legal redress. Then aid is denied despite the
defendant's wrong. It is denied in order to maintain respect for
law; in order to promote confidence in the administration of
Page 30 of 73
justice; in order to preserve the judicial process from
contamination.
 Decency, security and liberty alike demand that Government
officials shall be subjected to the same rules of conduct that
are commands to the citizen. In a government of laws,
existence of the Government will be imperilled if it fails to
observe the law scrupulously. Our Government is the potent,
the omnipresent teacher. For good or for ill, it teaches the
whole people by its example. Crime is contagious. If the
Government becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration of the
criminal law the end justifies the means -- to declare that the
Government may commit crimes in order to secure the
conviction of a private criminal -- would bring terrible
retribution. Against that pernicious doctrine this Court should
resolutely set its face.'
 Society is the ultimate loser when, in order to convict the guilty, it uses
methods that lead to decreased respect for the law. See United
States v. Archer (supra at 677).
 Thus the Court's decisions in Rochin and Mapp unmistakably
contradict its pronouncement in Frisbie that 'due process of law is
satisfied when one present in court is convicted of crime after being
fairly apprised of the charges against him and after a fair trial in
accordance with constitutional procedural safeguards'. The
requirement of due process in obtaining a conviction is greater. It
extends to the pre-trial conduct of law enforcement authorities" (at
273-274).
 A Federal Court's criminal process is abused or degraded when it is
executed against a defendant who has been brought into the territory
of the United States by the methods alleged here.
 We could not tolerate such an abuse without debasing "the processes
of justice" (at 276).
 This idea is to a large extent apparent in the rules of our own law.
John Doe v. UNOCAL (1997)
I. Introduction
 Doe plaintiffs are farmers from the Tenasserim region of Burma, bringing
action against
o Unocal Corp.,
o Total S.A.,
o The Myanma Oil and Gas Enterprise (MOGE),
o The State Law and Order Restoration Council (SLORC) and
 o John Imle, President of Unical and Roger Beach, Chairman and
CEO of Unocal.
 According to plaintiffs' complaint, SLORC is a military junta that seized
control in Burma in 1988, and MOGE is a state-owned company controlled
by SLORC that produces and sells energy products.
 Plaintiffs seek injunctive, declaratory and compensatory relief for alleged
international human rights violations perpetrated by defendants in
furtherance of defendants Unocal, Total and MOGE's joint venture, the
Yadana gas pipeline project.
 Plaintiffs seek to represent a class numbering in the tens of thousands and
consisting of all residents of the Tenasserim region of Burma ho have
been, are, or will be forced to relocate their place of residence, and/or
contribute labor and/or property and/or [be] subjected to the death of
family members, assault, rape or other torture, and other human rights
violations in furtherance of the Yadana gas pipeline project in which
defendants are joint venturers.
 UNOCAL filed a motion to dismiss for lack of subject matter jurisdiction,
Failure to Join a Party and Failure to State a Claim upon which Relief can
be granted.
II. Factual Allegations
 SLORC was created by the ruling military elite in Burma, in the face of
massive, nonviolent, pro-democracy demonstations throughout Burma.
o It imposed martial law on Burma and renamed it Myanmar.
o SLORC arrested increasingly popular National League for
Democracy leaders and intensified its campaign of repression of
the pro-democracy movement.
o Thus, According to plaintiffs, "there is no functioning judiciary in
Burma and any suit against defendants would have been and
would still be futile and would result in serious reprisals. There is a
pervasive atmosphere of terror and repression throughout the
country."
 In or before 1991, several international oil companies, including UNOCAL
and Total, began negotiating with SLORC regarding oil and gas
explorations in Burma.
o Thus, the Yadana gas pipeline project was established to obtain
natural gas and oil from the Andaman Sea and transport it, via a
pipeline, across the Tenasserim region of Burma
o In July of 1992, Total and MOGE signed a production-sharing
contract for a joint venture gas drilling project in the Yadana
natural gas field.
o Allege that the parties (Total, SLORC, MOGE and UNOCAL)
agreed that SLORC would clear forest, level ground, and provide
labor, materials and security for the Yadana pipeline project.
Page 31 of 73
 In the course of its actions on behalf of the joint venture, plaintiffs allege
SLORC carried out a program of violence and intimidation against area
villagers.
o SLORC soldiers forced farmers to relocate their villages,
confiscated property and forced inhabitants to clear forest, level
the pipeline route, build headquarters for pipeline employees,
prepare military outposts and carry supplies and equipment.
o As a result of the forced relocation, many villagers lost their homes
and were deprived of the use of their crops and livestock. As a
result of the prevalence of SLORC's forced labor practices, many
farmers, including several plaintiffs, were unable to maintain their
own homes and farms and were forced to flee.
o Allege plaintiffs allege women and girls in the Tenasserim region
have been targets of rape and other sexual abuse by SLORC
officials, both when left behind after male family members have
been taken away to perform forced labor and when they
themselves have been subjected to forced labor.
 Plaintiffs also contend, that Unocal and Total subsidized SLORC activities
in the region, and that numerous acts in furtherance of the joint venture
were and continue to be taken in California, including (1) provision of funds
(2) decision making regarding technology and personal to the project (3)
monitoring, determining and auditing activities of the project (4) decision
making regarding labor relations.
o Allege that defendants Total and UNOCAL knew or should have
known that SLORC had a history of human rights abuses violative
of customary international law, including the use of forced
relocation and forced labor
o Nonetheless, still provided money to undertake such activities.
o They continued to benefit from such forced labor.
Ruling of the District Court: Denied UNOCAL’s motion to dismiss.
III. Discussion
A. SLORC and MOGE are entitled to sovereign immunity pursuant to the
Foreign Sovereign Immunities Act
 Unocal contends that this Court lacks subject matter jurisdiction over
plaintiffs' claims against SLORC and MOGE.
 Under the FSIA, a foreign state is immune from suit, and federal courts
lack subject matter jurisdiction over claims against the foreign state, unless
one of the enumerated exceptions applies. (Randolph v Budget Rent a
Car)
o Consequently, whenever an action is brought in district court
against a foreign state, "the court must satisfy itself that one of the
FSIA exceptions applies ... even if the foreign state does not enter
 an appearance to assert an immunity defense." (Siderman de
Blake v Argentina)
o The defendant asserting immunity "bears the burden of
establishing its immunity, including the burden of proof that no
exception applies." (Phaneuf v Indonesia)
 The defendant must prima facie establish that it is a
sovereign state.
 Once established, the burden of proof shifts to plaintiff to
offer evidence that the exception applies.
 Here, plaintiffs do not dispute that SLORC and MOGE are foreign
sovereigns.
o Accordingly, defendants have established a prima facie case
under the FSIA and SLORC and MOGE are presumptively entitled
to sovereign immunity.
 Although the burden of proof remains with Unocal, plaintiffs bear the initial
burden of producing evidence that an exception applies.
 Plaintiffs try to establish that the “commercial activity” exception below
applied in this case:
The FSIA provides a general exception to jurisdictional immunity where:
1. The action is based upon a commercial activity carried on in the
United States by the foreign state; or
2. Upon an act performed in the United States in connection with a
commercial activity of the foreign state elsewhere; or
3. Upon an act outside the territory of the United States in connection
with a commercial activity of the foreign state elsewhere and that act
causes a direct effect in the United States
 Plaintiff contend that SLORC and MOGE are not entitled to immunity
because the case falls within clauses 2 and 3 of the commercial activity
exception.
BUT the Court held that:
 CLAUSE TWO DOESN’T APPLY. It applies only to claims that are based
upon acts performed in the United States.
o Here, plaintiffs' human rights claims are based upon acts of
SLORC and MOGE allegedly committed in Burma, not upon acts
allegedly performed in the United States.
o While the commercial negotiations and decision-making that
allegedly occurred in the United States may suffice to establish
that defendants were joint actors, they are not "elements" of
plaintiffs' claims against the foreign state defendants.
 CLAUSE THREE DOESN’T APPLY. The FSIA defines "commercial
activity" as either a regular course of commercial conduct or a particular
commercial transaction or act.
Page 32 of 73
o The commercial character of an activity shall be determined by
reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose.
 Thus, "when a foreign government acts, not as regulator
of a market, but in the manner of a private player within it,
the foreign sovereign's actions are 'commercial' within the
meaning of the FSIA."
 "A state engages in commercial activity under the
restrictive theory where it exercises only those powers that
can also be exercised by private citizens, as distinct from
those powers peculiar to sovereigns."
o Here, SLORC and MOGE's alleged violations of plaintiffs' human
rights, allegedly committed in connection with the Yadana gas
pipeline project, do not fall within the ambit of the commercial
activity exception to the FSIA, as it has been interpreted by the
Supreme Court and the Ninth Circuit.
 Because plaintiffs essentially allege that SLORC and
MOGE abused their police power, the foreign sovereign
defendants' acts that form the basis of plaintiffs' claims are
"peculiarly sovereign in nature" and do not come within
the commercial activity exception to the FSIA.
B. SLORC and MOGE are not indispensable parties under Rule 19
because complete relief may be accorded among the remaining parties in
their absence.
UNOCAL’s argument: Unocal argues that complete relief cannot be accorded
among the remaining parties if SLORC and MOGE are dismissed.
 To determine whether an action should be dismissed under Rule 19 of the
Federal Rules of Civil Procedure, courts engage in a two-step inquiry.
1. Whether the absent party is necessary and cannot be joined
 A person is a necessary party if (1) in the person's
absence complete relief cannot be accorded among those
already parties, or (2) the person claims an interest
relating to the subject of the action
2. Whether in equity and good conscience the action should
proceed among the parties before it, or should be dismissed
 In determining thus, courts are generally directed to
balance the following factors: (1) prejudice to any party or
to the absent party; (2) whether relief can be shaped to
lessen prejudice; (3) whether an adequate remedy, even if
not complete, can be awarded without the absent party;
and (4) whether there exists an alternative forum.
 However, where the necessary party is immune from suit,
balancing may not be necessary because immunity itself
may be a compelling factor.
 But the Court held that if were plaintiffs to prevail, SLORC and MOGE's
absence would not impede them from obtaining the core injunctive and
declaratory relief they seek.
o In these circumstances, even though plaintiffs will be limited to
obtaining injunctive and declaratory relief from defendants other
than SLORC and MOGE, if plaintiffs prevail, they may still obtain
complete relief from the remaining defendants.
C. Subject-matter jurisdiction over plaintiffs' claims against the
remaining defendants is available under the Alien Tort Claims Act
("ATCA") and 28 U.S.C. at 1367
 The ATCA provides that the district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed in violation of the law
of nations or a treaty of the United States.
Requisites for ATCA to apply:
1. A claim by an alien
2. Alleging a tort
3. A violation of international law
 Here the plaintiffs are aliens who assert tort claims. The question remains
as to whether plaintiffs may assert claims on violations of international law
against the defendants.
1. Violation of International Law
 "It is well settled that the law of nations is part of federal common law." (In
re Estate of Ferdinand E. Marcos Human Rights Litigation)
o Section 1350 does not require that the action 'arise under' the laws
of the United States, but only mandates 'a violation of the law of
nations' in order to create a cause of action." In re Estate of
Ferdinand E. Marcos Human Rights Litigation,
 A court applying the ATCA must determine "whether there is an applicable
norm of international law, whether it is recognized by the United States,
what its status is, and whether it has been violated."
o Thus, under the ATCA, jurisdiction may be based on a violation of
a jus cogens norm which enjoys the highest status within
international law.
 The prohibition against official torture rises to the level of a jus cogens
norm, and jurisdiction may be premised on a violation of that norm.
2. State Action
 Was there state action in this case to merit a violation of international law?
 The courts look to the standards developed under 42 U.S.C. at 1983
o A private individual acts under color of law within the meaning of
section 1983 when he acts together with state officials or with
significant state aid.
 Although the standards have not been historically consistent, nonetheless,
"the Supreme Court has articulated four distinct approaches to the state
Page 33 of 73
action question: (1) public function (2) state compulsion (3) nexus (4) joint
action
o Under the joint action approach, private actors can be state actors
if they are 'willful participant[s] in joint action with the state or its
agents.'
o An agreement between government and a private party can create
joint action.
o Under the joint action test, "courts examine whether state officials
and private parties have acted in concert in effecting a particular
deprivation of constitutional rights."
 Here, plaintiffs allege that SLORC and MOGE are agents of the private
defendants; that the defendants are joint venturers, working in concert with
one another; and that the defendants have conspired to commit the
violations of international law alleged in the complaint in order to further
the interests of the Yadana gas pipeline project
o This allegation is enough to establish joint action.
3. Private Liability Absent State Action
 Anyway, the private actors may be liable for violations of international law
even absent state action.
 Judge Edwards commented in his concurrence in Tel-Oren v Libyan Arab
Republic that individual liability remained available, in the face of the 19th
century trend toward statism, for a handful of private acts, including piracy
and slave trading.
 In the recent decision by the Second Circuit in Kadic provides a reasoned
analysis of the scope of a private individual's liability for violations of
international law.
o There, the court disagreed that the law of nations, as understood
in the modern era, confines its reach to state action.
o Instead, that court held that certain forms of conduct violate the
law of nations whether undertaken by those acting under the
auspices of a state or only as private individuals.
o Like Judge Edwards, the Kadic court noted that participation in the
slave trade "violates the law of nations whether undertaken by
those acting under the auspices of a state or only as private
individuals.”
 The allegations of forced labor in this case are sufficient to constitute an
allegation of participation in slave trading.
o The private defendants have paid and continue to pay SLORC to
provide labor and security for the pipeline, essentially treating
SLORC as an overseer, accepting the benefit of and approving the
use of forced labor.
D. The Act of State doctrine does not preclude consideration of plaintiffs'
claims.
 UNOCAL argues that the act of state doctrine applies in this case.
o The act of state doctrine "reflects the prudential concern that the
courts, if they question the validity of sovereign acts taken by
foreign states, may be interfering with the conduct of American
foreign policy by the Executive and Congress." (Siderman de
Blake)
o In essence, Unocal asserts that by adjudicating plaintiffs' claims,
this Court will interfere with the foreign policy efforts of Congress
and the President.
 But it appears that invocation of the act of state doctrine is not appropriate
unless it is "apparent" that adjudication of the matter will bring the nation
into hostile confrontation with the foreign state.
o Where, as here, the coordinate branches of government have
already denounced the foreign state's human rights abuses, it is
hard to imagine how judicial consideration of the matter will so
substantially exacerbate relations as to cause "hostile
confrontation."
 Moreover, where jurisdiction is available for jus cogens violations, it is less
likely that judicial pronouncements on a foreign sovereign's actions will
undermine the policies behind the act of state doctrine.
o In determining whether the doctrine bars judicial review one factor
to be considered is "the degree of international consensus
regarding an activity.
o Because nations do not, and cannot under international law, claim
a right to torture or enslave their own citizens, a finding that a
nation has committed such acts, particularly where, as here, that
finding comports with the prior conclusions of the coordinate
branches of government, should have no detrimental effect on the
policies underlying the act of state doctrine.
G. Plaintiffs have pled sufficient facts to survive Unocal's motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6); (Or to survive attack based
on failure to state a claim)
1. Standard
 A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in
the complaint.
o A Rule 12(b)(6) dismissal is proper only where there is either a
"lack of a cognizable legal theory" or "the absence of sufficient
facts alleged under a cognizable legal theory."
o Therefore, a court must not dismiss a complaint for failure to state
a claim unless "it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief."
2. Application
Page 34 of 73
 UNOCAL’s argument: plaintiffs fail to state a claim against Unocal
because they allege no facts that could conceivably establish Unocal's
liability for any of SLORC's actions in Burma.
 However, plaintiffs' complaint includes a number of allegations that
indicate plaintiffs may be able to prove facts in support of their claims.
1. that Unocal and its officers knew or should have known about
SLORC's practices of forced labor and relocation when they agreed to
invest in the Yadana gas pipeline project
2. that Unocal and its officers "were aware of and benefitted from and
continue to be aware of and benefit from the use of forced labor to
support the Yadana gas pipeline project."
3. that Unocal knew that SLORC "committed human rights abuses,
including forced labor and forced relocation, in connection with the
Yadana gas pipeline project."
 Unocal's contention that the complaint makes only conclusory allegations
is meritless.
H. The cause of action stated is not barred by Statutes of Limitation,
applied Equitable Tolling
 Plaintiffs filed their complaint on October 3, 1996. They allege accrual of
claims as early as 1991, but the earliest claim specifically alleged accrued
on May 12, 1992.
 The parties dispute the length of the limitations period for the ATCA.
o Plaintiffs argue that the TVPA ten-year period provides the closest
federal analogy.
o HELD: The Supreme Court recently explained that reference to
federal law is the exception, and we decline to follow a state
limitations period only when a rule from elsewhere in federal law
clearly provides a closer analogy than available state statutes
 But the concept of EQUITABLE TOLLING is available.
o Under federal law, equitable tolling is available where (1)
defendant's wrongful conduct prevented plaintiff from asserting the
claim; or (2) extraordinary circumstances outside the plaintiff's
control made it impossible to timely assert the claim.
o Applying this same test, the Ninth Circuit recently concluded that
because of extraordinary circumstances outside plaintiffs' control
resulting in fear of intimidation and reprisal, claims against Marcos
for injury from torture, disappearance, or summary execution were
tolled until he left office. (Hilao v Marcos)
 Plaintiffs have sufficiently alleged that they could obtain no relief in Burma
because there is no functioning judiciary there.
o However, defendants are correct that plaintiffs have not
specifically alleged that they could not have brought their claims in
the United States. Nonetheless, based on the Ninth Circuit's
recent decision in Hilao, plaintiffs claims should be tolled as long
 as SLORC remains in power and plaintiffs are unable to obtain
access to judicial review.
DISPOSITION: Denied in part and granted in part. Complaint dismissed as to
SLORC and MOGE, but sustained as to UNOCAL and Total under the Alien
Tort Claims Act.
Congo v. Belgium (2002)
FACTS:
 On 11 April 2000, a Belgian Magistrate issued an international arrest
warrant against Mr. Yerodia. At the time, Yerodia was the Foreign
Minister of Congo. The Court issued the warrant based on universal
jurisdiction. It accused Yerodia of inciting racial hatred. These
speeches, allegedly, incited the population to attack Tutsi residents in
Rwanda, which resulted in many deaths. The warrant alleged
Yerodia committed grave breaches of the Geneva Conventions of
1949 and its Additional Protocols and crimes against humanity.
Belgium sent the arrest warrant to Interpol and circulated it to all
States, including to Congo. The warrant asked States to arrest, detain,
and extradite Yerodia to Belgium. After Belgium issued the warrant, in
November 2000, Yerodia became the Education Minister. At the time
of the judgement, he did not hold a Ministerial post in Congo.
 Congo placed two separate legal questions before the Court at the
time of it made its application to the ICJ.
o It contested Belgium's basis of jurisdiction, “Universal
jurisdiction” - stating that it violated the principle of sovereign
equality
 The international warrant issued by Belgium
constituted a violation of the principle that a State may
not exercise its authority on the territory of another
State;
o Diplomatic immunity of the Minister of Foreign Affairs of a
sovereign state.
 Belgium raised objections to the jurisdiction of the Court which
revolved upon two contentions:
o There was no longer a legal dispute between the parties
o In relation to first objection: It is because Yerodia was no
longer holding office as Minister for foreign affairs
 The Court only tackled the issue on the immunity and inviolability of
the foreign minister
ISSUES + RULING:
Page 35 of 73
Whether or not Belgium violated customary international law principles
concerning the absolute inviolability and immunity from criminal process of an
incumbent Foreign Minister, when it issued and internationally circulated the
arrest warrant? YES
 It is an established principle of international law that Heads of States
and Governments, Foreign Ministers and Diplomatic and Consular
agents enjoys immunities from civil and criminal jurisdictions of other
States.
 In the absence of treaty law, customary international law determines
the immunities of Ministers of Foreign Affairs. These immunities “…are
not given for their personal benefit; but to ensure the effective
performance of their functions of behalf of their…States”. The
functions of the Foreign Minister require frequent travel to other
countries. International law recognizes him as a representative of the
State solely by virtue of his office. The functions of a Foreign Minister
are such that – during his tenure – he enjoys absolute immunity from
criminal jurisdiction and inviolability when he is abroad.
 As the incumbent Foreign Minister, Yerodia enjoys immunity (during
his tenure) for acts performed, both, in an official capacity and in a
private capacity. The immunity applies regardless of whether the
Minister is on foreign territory in an official visit or private visit. This
immunity extends not only to his actions during his tenure; but, also to
his actions before he became Foreign Minister.
o “Thus, if a Minister for Foreign Affairs is arrested in another
State on a criminal charge, he or she is thereby prevented
from exercising the functions of his or her office. The
consequences of such impediment to the exercise of those
official functions are equally serious…. Furthermore, even the
mere risk that, by travelling to or transiting another State a
Minister for Foreign Affairs might be exposing himself or
herself to legal proceedings could deter the Minister from
travelling internationally when required to do so for the
purposes of the performance of his or her official functions.”
 The Court rejected Belgium’s argument that the Minister does not
enjoy immunity because he is accused of having committed war
crimes or crimes against humanity. (Belgium relied on the Pinochet
Case (decided by the House of Lords, UK), the Qaddafi Case (decided
by the French Court of Cassation) and Statutes of International
Criminal Court and Tribunals.) The Court held that there was no
exception in customary international law to the absolute immunity of
an incumbent Foreign Minister.
o ” It (the Court) has been unable to deduce from this practice
that there exists under customary international law any form of
exception to the rule according immunity from criminal
jurisdiction and inviolability to incumbent Ministers of Foreign
 Affairs, when they are suspected of having committed war
crimes or crimes against humanity…The Court has also
examined the rules concerning the immunity or criminal
responsibility of persons having an official capacity contained
in the legal instruments creating international criminal
tribunals, and which are specifically applicable … It finds that
these rules likewise do not enable it to conclude that any such
an exception exists in customary international law in regard to
national courts.”
 International Conventions give jurisdiction to national Courts over
various crimes and, at times, requires them to exercise this jurisdiction
[for example, the Torture Convention]. This requirement does not
affect the immunities given to Foreign Ministers under international
law. Despite international conventions establishing domestic
jurisdiction, Foreign Ministers are immune before foreign courts.
 Immunity does not mean impunity. The person continues to be
individually responsible for the crime he committed.
o “While jurisdictional immunity is procedural in nature, criminal
responsibility is a question of substantive law. Jurisdictional
immunity may well bar prosecution for a certain period or for
certain offences; it cannot exonerate the person to whom it
applies from all criminal responsibility….”
 The Court set out four situations where an incumbent or former
Foreign Minister could be prosecuted:
o a. Prosecution in his own country according to the domestic
law (the international law of immunity is not recognized before
a person’s national courts);
o b. If his country waives his immunity, prosecution before a
foreign court;
o c. Once he ceases to be the Foreign Minister, he no longer
enjoys immunity before foreign courts for private acts
committed during his tenure as Foreign Minister; and for all
acts committed before or after his tenure in office; and
o d. Prosecution before an international criminal body, with the
necessary jurisdiction (for example the ICC).
 The ICJ concluded that the issuance and circulation of the arrest
warrant violated Belgium’s obligations towards Congo, “in that it failed
to respect the immunity of that Minister and, more particularly infringed
the immunity from criminal jurisdiction and the inviolability enjoyed by
him under international law.” It did not matter that Yerodia was never
arrested.
o “Since Mr. Yerodia was called upon in that capacity to
undertake travel in the performance of his duties, the mere
international circulation of the warrant… could have resulted,
in particular, in his arrest while abroad. The Court observes…
Page 36 of 73
Mr. Yerodia, “on applying for a visa to go to two countries,
[apparently] learned that he ran the risk of being arrested as a
result of the arrest warrant issued against him by Belgium”…
the arrest warrant ‘sometimes forced Minister Yerodia to travel
by roundabout routes”‘.
 Congo asked the Court to rule that the unlawfulness of the arrest
warrant precludes States who received the warrant from exercising it.
The Court refused to indicate what the judgment’s implications might
be for third States. Its determination is limited to Congo and Belgium.
[NB: the Statute of the ICJ requires that its rulings should not create
binding obligations on States who are not parties to the dispute.]
 On reparation, the Court held that the issuance and circulation of the
arrest warrant engaged Belgium’s international responsibility. “The
Court… considers that Belgium must, by means of its own choosing,
cancel the warrant in question and so inform the authorities to whom it
was circulated.” The Court did not order any other reparations.
United States v. Purganan (2002)
FACTS
 Petition for Certiorari under Rule 65 of the Rules of Court, seeking to
void and set aside the Orders of the RTC.
o The first Order set for hearing petitioner’s application for
the issuance of a warrant for the arrest of Respondent
Mark B. Jimenez.
o The second challenged Order, on the other hand, directed the
issuance of a warrant, but at the same time granted bail to
Jimenez at 1M and ordered to surrender passport
 sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C.
Lantion
 Pursuant to the existing RP-US Extradition Treaty, the United States
Government, through diplomatic channels, sent to the Philippine
Government Note Verbale No. 0522 dated June 16, 1999,
supplemented by Note Nos. 0597, 0720 and 0809 and accompanied
by duly authenticated documents requesting the extradition of Mark
B. Jimenez, also known as Mario Batacan Crespo.
 the secretary of foreign affairs (SFA) transmitted them to the secretary
of justice (SOJ) for appropriate action, pursuant to Section 5 of
Presidential Decree (PD) No. 1069, also known as the Extradition
Law.
 Jimenez sought and was granted a TRO by the RTC of Manila, which
prohibited the Department of Justice (DOJ) from filing with the RTC a
petition for his extradition.
 The validity of the TRO was assailed by the SOJ in a Petition before
this Court in the said GR No. 139465. Initially, the Court -- by a vote
 of 9-6 -- dismissed the Petition. The SOJ was ordered to furnish
private respondent copies of the extradition request and its supporting
papers and to grant the latter a reasonable period within which to file a
comment and supporting evidence.
 Acting on the Motion for Reconsideration filed by the SOJ, this Court
issued its October 17, 2000 Resolution. By an identical vote of 9-6 --
after three justices changed their votes -- it reconsidered and reversed
its earlier Decision. It held that private respondent was bereft of the
right to notice and hearing during the evaluation stage of the
extradition process. This Resolution has become final and
executory.
 the Government of the United States of America, represented by the
Philippine DOJ, filed with the RTC the appropriate Petition for
Extradition which was docketed as Extradition Case No. 01192061.
 Jimenez was the subject of an arrest warrant issued by the United
States District Court for the Southern District of Florida in connection
with the following charges in Indictment: (1) conspiracy to defraud the
United States and to commit certain offenses in violation of Title 18 US
Code Section 371; (2) tax evasion, in violation of Title 26 US Code
Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections
1343 and 2; (4) false statements, in violation of Title 18 US Code
Sections 1001 and 2; and (5) illegal campaign contributions, in
violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title
18 US Code Section 2.
 the Petition prayed for his “immediate arrest” pursuant to Section 6 of
PD No. 1069.
 Jimenez filed before it an “Urgent Manifestation/Ex-Parte Motion,”
which prayed that petitioner’s application for an arrest warrant be
set for hearing.
 RTC granted the Motion of Jimenez and set the case for hearing
 Petitioner USA manifested its reservations on the procedure adopted
by the trial court allowing the accused in an extradition case to be
heard prior to the issuance of a warrant of arrest.
 Jimenez sought to post bail in the amount of P100,000.
 This alternative prayer of Jimenez was also set for hearing
 the court below issued its questioned July 3, 2001 Order, directing the
issuance of a warrant for his arrest and fixing bail for his temporary
liberty at P1M pesos in cash.
 Jimenez was granted provisional liberty via the challenged Order
dated July 4, 2001
ISSUES
Present Petition not Premature
 As a general rule, a petition for certiorari before a higher court will not
prosper unless the inferior court has been given, through a motion for
Page 37 of 73
reconsideration, a chance to correct the errors imputed to it. This rule,
though, has certain exceptions: (1) when the issue raised is purely of
law, (2) when public interest is involved, or (3) in case of urgency. As a
fourth exception, the Court has also ruled that the filing of a motion for
reconsideration before availment of the remedy of certiorari is not
a sine qua non, when the questions raised are the same as those that
have already been squarely argued and exhaustively passed upon by
the lower court. Aside from being of this nature, the issues in the
present case also involve pure questions of law that are of public
interest. Hence, a MR may be dispensed with.
Five Postulates of Extradition
 A cardinal rule in the interpretation of a treaty or a law is to ascertain
and give effect to its intent. PD 1069 is intended as a guide for the
implementation of extradition treaties to which the Philippines is a
signatory,
1. Extradition Is a Major Instrument for the Suppression of Crime.
 First, extradition treaties are entered into for the purpose of
suppressing crime by facilitating the arrest and the custodial transfer of
a fugitive from one state to the other.
 With the advent of easier and faster means of international travel, the
flight of affluent criminals from one country to another for the purpose
of committing crime and evading prosecution has become more
frequent. Accordingly, governments are adjusting their methods of
dealing with criminals and crimes that transcend international
boundaries.
 Today, “a majority of nations in the world community have come to
look upon extradition as the major effective instrument of
international co-operation in the suppression of crime.” It is the
only regular system that has been devised to return fugitives to the
jurisdiction of a court competent to try them in accordance with
municipal and international law.
 “An important practical effect x x x of the recognition of the principle
that criminals should be restored to a jurisdiction competent to try and
punish them is that the number of criminals seeking refuge abroad
will be reduced. For to the extent that efficient means of detection
and the threat of punishment play a significant role in the deterrence of
crime within the territorial limits of a State, so the existence of
effective extradition arrangements and the consequent certainty
of return to the locus delicti commissi play a corresponding role in
the deterrence of flight abroad in order to escape the consequence of
crime. x x x. From an absence of extradition arrangements flight
abroad by the ingenious criminal receives direct encouragement and
thus indirectly does the commission of crime itself.”
 Secretary v. Lantion:
 o “The Philippines also has a national interest to help in
suppressing crimes and one way to do it is to facilitate the
extradition of persons covered by treaties duly entered
[into] by our government.
 More and more, crimes are becoming the concern of one world. Laws
involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards
globalization is to deny easy refuge to a criminal whose activities
threaten the peace and progress of civilized countries. It is to the
great interest of the Philippines to be part of this irreversible movement
in light of its vulnerability to crimes, especially transnational crimes.”
 we cannot afford to be an isolationist state. We need to cooperate
with other states in order to improve our chances of suppressing crime
in our own country.
2. The Requesting State Will Accord Due Process to the Accused
 Second, an extradition treaty presupposes that both parties thereto
have examined, and that both accept and trust, each other’s legal
system and judicial process
 our duly authorized representative’s signature on an extradition treaty
signifies our confidence in the capacity and the willingness of the other
state to protect the basic rights of the person sought
3. The Proceedings Are Sui Generis
 Secretary of Justice v. Lantion, extradition proceedings are not
criminal in nature. In criminal proceedings, the constitutional rights
of the accused are at fore; in extradition which is sui generis -- in a
class by itself -- they are not.
 “An extradition [proceeding] is sui generis. It is not a criminal
proceeding which will call into operation all the rights of an
accused as guaranteed by the Bill of Rights.
 process of extradition does not involve the determination of the
guilt or innocence of an accused.
 “There are other differences between an extradition proceeding
and a criminal proceeding.
o An extradition proceeding is summary in nature while
criminal proceedings involve a full-blown trial.
o an extradition proceeding allow admission of evidence
under less stringent standards.
o Not proof beyond reasonable doubt but ordered extradited
‘upon showing of the existence of a prima facie case.’
o unlike in a criminal case where judgment becomes executory
upon being rendered final, in an extradition proceeding, our
courts may adjudge an individual extraditable but the
President has the final discretion to extradite him
(executive in nature)
Page 38 of 73
Extradition is merely a measure of international judicial assistance
through which a person charged with or convicted of a crime is
restored to a jurisdiction with the best claim to try that person.
 The ultimate purpose of extradition proceedings in court is only
to determine whether the extradition request complies with the
Extradition Treaty, and whether the person sought is extraditable.
4. Compliance Shall Be in Good Faith.
 our executive branch of government voluntarily entered into the
Extradition Treaty, and our legislative branch ratified it. Hence, the
Treaty carries the presumption that its implementation will serve the
national interest.
 we are bound by pacta sunt servanda to comply in good faith with our
obligations under the Treaty. This principle requires that we deliver the
accused to the requesting country if the conditions precedent to
extradition, as set forth in the Treaty, are satisfied.
5. There Is an Underlying Risk of Flight
 persons to be extradited are presumed to be flight risks
 Prior acts of herein respondent -- (1) leaving the requesting state right
before the conclusion of his indictment proceedings there; and (2)
remaining in the requested state despite learning that the requesting
state is seeking his return and that the crimes he is charged with are
bailable -- eloquently speak of his aversion to the processes in the
requesting state, as well as his predisposition to avoid them at all
cost.
First Substantive Issue: Is Respondent Entitled to Notice and
Hearing Before the Issuance of a Warrant of Arrest?
 USA contends that the procedure adopted by the RTC --informing the
accused that an Extradition Petition has been filed against him, and
that petitioner is seeking his arrest -- gives him notice to escape and to
avoid extradition.
 Jimenez argues that he should not be hurriedly and arbitrarily
deprived of his constitutional right to liberty without due process. no
specific law or rule setting forth the procedure ergo, the formulation of
that procedure is within the discretion of the presiding judge.
 Both cite Section 6 of PD 1069:
o “SEC. 6. Issuance of Summons; Temporary Arrest; Hearing,
Service of Notices.- (1) Immediately upon receipt of the
petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the
petition on the day and hour fixed in the order. [H]e
may issue a warrant for the immediate arrest of the
accused which may be served any where within the
Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused
will best serve the ends of justice. Upon receipt of the
 answer, or should the accused after having received the
summons fail to answer within the time fixed, the presiding
judge shall hear the case or set another date for the hearing
thereof.
o “(2) The order and notice as well as a copy of the warrant of
arrest, if issued, shall be promptly served each upon the
accused and the attorney having charge of the
case.” (Emphasis ours)
Does this provision sanction RTC Judge Purganan’s act of immediately
setting for hearing the issuance of a warrant of arrest? We rule in the
negative.
1. On the Basis of the Extradition Law
 Sec 6 of Extradition Law, uses the word “immediate” to qualify the
arrest of the accused. This qualification would be rendered nugatory
by setting for hearing the issuance of the arrest warrant.
o Hearing entails sending notices to the opposing
parties, receiving facts and arguments from them, and giving
them time to prepare and present such facts and arguments.
 By using the phrase “if it appears,” the law further conveys that
accuracy is not as important as speed at such early stage.
o From the knowledge and the material then available to it, the
court is expected merely to get a good first impression --
a prima facie finding -- sufficient to make a speedy initial
determination as regards the arrest and detention of the
accused.
 Attached to the Petition for Extradition, with a Certificate of
Authentication among others, were annexes that constituted evidence
 He could have determined whether such facts and circumstances
existed as would lead a reasonably discreet and prudent person to
believe that the extradition request was prima facie meritorious
 after having already determined therefrom that a prima facie
finding did exist, respondent judge gravely abused his discretion when
he set the matter for hearing upon motion of Jimenez.
 extradition proceedings are summary in nature. Hence, the
silence of the Law and the Treaty leans to the more reasonable
interpretation that there is no intention to punctuate with a hearing
every little step in the entire proceedings.
 as argued by petitioner, sending to persons sought to be extradited a
notice of the request for their arrest and setting it for hearing at some
future date would give them ample opportunity to prepare and execute
an escape. Neither the Treaty nor the Law could have intended that
consequence
2. On the Basis of the Constitution
Page 39 of 73

Even Section 2 of Article III of our Constitution, which is invoked by
Jimenez, does not require a notice or a hearing before the issuance of
a warrant of arrest. It provides:
o “Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized.”
 To determine probable cause for the issuance of arrest warrants, the
Constitution itself requires only the examination -- under oath or
affirmation -- of complainants and the witnesses they may
produce. There is no requirement to notify and hear
the accused before the issuance of warrants of arrest.
 In Webb v. De Leon, the Court categorically stated that a judge was
not supposed to conduct a hearing before issuing a warrant of arrest:
 “Again, we stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty of guilt of an
accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just personally
review the initial determination of the prosecutor finding a probable
cause to see if it is supported by substantial evidence.”
 If the accused were allowed to be heard and present evidence during
the prima facie what would stop him from presenting his entire
plethora of defenses
Proper Procedure:
 Upon receipt of a petition for extradition and its supporting
documents, the judge must study them and make, as soon as
possible, a prima facie finding whether (a) they are sufficient in form
and substance, (b) they show compliance with the Extradition Treaty
and Law, and (c) the person sought is extraditable. At his discretion,
the judge may require the submission of further documentation or may
personally examine the affiants and witnesses of the petitioner
 if the presence of a prima facie case is determined, then the
magistrate must immediately issue a warrant for the arrest of the
extraditee, who is at the same time summoned to answer the
petition and to appear at scheduled summary hearings.
 Prior to the issuance of the warrant, the judge must not inform or notify
the potential extraditee of the pendency of the petition, lest the latter
be given the opportunity to escape and frustrate the proceedings.
Second Substantive Issue: Is Respondent Entitled to Bail?
 Article III, Section 13 of the Constitution, is worded as follows:
 o “Art. III, Sec. 13. All persons, except those charged with
offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus
suspended. Excessive bail shall not be required.”
 Respondent Mark B. Jimenez maintains that this constitutional
provision secures the right to bail of all persons, including those
sought to be extradited
 US claims that there is no provision in the Philippine Constitution
granting the right to bail to a person who is the subject of an
extradition request and arrest warrant.
Extradition Different from Ordinary Criminal Proceedings
 We agree with US. As suggested by the use of the word “conviction,”
the constitutional provision on bail quoted above, as well as Section 4
of Rule 114 of the Rules of Court, applies only when a person has
been arrested and detained for violation of Philippine criminal
laws. It does not apply to extradition proceedings, because extradition
courts do not render judgments of conviction or acquittal.
 the constitutional provision on bail will not apply to a case like
extradition, where the presumption of innocence is not at issue.
 That the offenses for which Jimenez is sought to be extradited are
bailable in the United States is not an argument to grant him one in the
present case. He should apply for bail before US courts
No Violation of Due Process
 Respondent Jimenez cites the foreign case Paretti in arguing that,
constitutionally, “[n]o one shall be deprived of x x x liberty x x x
without due process of law.”
 his detention prior to the conclusion of the extradition proceedings
does not amount to a violation of his right to due process.
a subsequent opportunity to be heard is enough, when the extradition
court hears the Petition for Extradition.
 before the US government requested the extradition of respondent,
proceedings had already been conducted in
country. But because he left the jurisdiction, it was hindered from
continuing with the due processes prescribed under its laws.
 Too, we cannot allow our country to be a haven for fugitives, cowards
and weaklings who, instead of facing the consequences of their
actions, choose to run and hide. Hence, it would not be good policy to
increase the risk of violating our treaty obligations if, through
overprotection or excessively liberal treatment, persons sought to be
extradited are able to evade arrest or escape from our custody.
Exceptions to the “No Bail” Rule
after a potential extraditee has been arrested or placed under the
custody of the law, bail may be applied for and granted as
an exception, only upon a clear and convincing showing (1) that, once
granted bail, the applicant will not be a flight risk or a danger to the
community; and (2) that there exist special, humanitarian and
is compelling circumstances including, as a matter of reciprocity, those
cited by the highest court in the requesting state when it grants
provisional liberty in extradition cases therein.
 derived essentially from general principles of justice and fairness, the
applicant bears the burden of proving the above
 Jimenez contends that there are special circumstances
1. Alleged Disenfranchisement
 While his extradition was pending, Respondent Jimenez was elected
as a member of the House of Representatives. On that basis, he
claims that his detention will disenfranchise his Manila district of
600,000 residents. We are not persuaded.
 “We, therefore, find that election to the position of Congressman is not
a reasonable classification in criminal law enforcement
 Premises considered and in line with Jalosjos, we are constrained to
rule against his claim that his election to public office is by itself a
compelling reason to grant him bail.
2. Anticipated Delay
 Respondent Jimenez further contends that because the extradition
proceedings are lengthy, it would be unfair to confine him during the
pendency of the case. Again we are not convinced. We must
emphasize that extradition cases are summary in nature.
3. Not a Flight Risk?
 Jimenez further claims that he is not a flight risk. To support this
claim, he stresses that he learned of the extradition request in June
1999; yet, he has not fled the country.
 this fact cannot be taken to mean that he will not flee
Brief Refutation of Dissents
 The proposal to remand this case to the extradition court, we believe,
is totally unnecessary; in fact, it is a cop-out. The parties -- in
that particular, Respondent Jimenez -- have been given more than
sufficient opportunity both by the trial court and this Court to discuss
fully and exhaustively private respondent’s claim to bail.
 Then, there is also the suggestion that this Court is allegedly
“disregarding basic freedoms when a case is one of extradition.” We
believe that this charge is not only baseless, but also unfair.
WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May
23, 2001 is hereby declared NULL and VOID, while the challenged Order
dated July 3, 2001 is SET ASIDEinsofar as it granted bail to Respondent Mark
Jimenez. The bail bond posted by private respondent is CANCELLED. The
Page 40 of 73
Regional Trial Court of Manila is directed to conduct the extradition
proceedings
Separate Opinions (note, reviewers didn’t even mention them)
Vitug Dissent.My reservation on the draft ponencia is premised on the
following theses – first, it would ignore constitutional safeguards to which all
government action is defined, and second, it would overstep constitutional
restraints on judicial power.
Ynares Santiago and Sandoval-Gutierrez Dissent. I find the views on the
indiscriminate denial of fundamental rights too open-ended and heedless of
entrenched jurisprudence on Bill of Rights protections.
Carpio Concur, Bellosillo, Puno and Quisumbing Separate Opinon
Page 41 of 73
United States v. Purganan, Motion for Reconsideration (2002)
FACTS:
Before the Court are private respondent’s Motion for Reconsideration dated 10
October 2002, petitioner’s Comment thereon dated 05 November 2002, private
respondent’s Motion for Leave of Court to File and to Admit Additional
Arguments in Support of Motion for Reconsideration dated November 6, 2002,
and Reply (to petitioner’s Comment) dated November 26, 2002.
ISSUES/HELD:
1. WoN private respondent should be granted bail- NO
2. WoN the Extradition Court negated the flight risk posed by him- NO
3. WoN private respondent’s right to due process has been violated- NO
4. WoN private respondent, as a member of Congress, is immune from
arrest- NO
RATIO:
1. Suffice it to say that petitioner’s repeated invocation of the Extradition
Court’s grant of bail has not convinced us that he deserves bail under
the exception laid down in our Decision, namely," (1) that, once
granted bail, the applicant will not be a flight risk or a danger to the
community; and (2) that there exists special, humanitarian and
compelling circumstances including, as matter of reciprocity, those
cited by the highest court in the requesting state when it grants
provisional liberty in extradition cases therein."cralaw virtua1aw library
There has been no clear and convincing showing as to the absence of
flight risk and the non-endangerment of the community, or as to the
existence of special, humanitarian and compelling circumstances
justifying grant of bail.
2. The Extradition Court did not negate the flight risk posed by him. It did
not make a finding on flight risk as it considered the issue irrelevant,
having already determined bail to be a matter of right. Without making
any finding on flight risk, it found the capacity to flee subservient to
"the benefits that respondent may be able to deliver to his
constituents" despite the absence from the records of evidence
showing the existence of such benefits.
3. Private respondent argues that allegedly our Decision violates his due
process rights. Again, we have discussed this matter in our Decision
saying that, in its simplest concept, due process is merely the
opportunity to be heard — which opportunity need not always be a
prior one. In point of fact, private respondent has been given more
than enough opportunity to be heard in this Court as well as in the
Extradition Court. Even his Motion for Reconsideration has been given
all the chances to persuade by way of allowing "additional arguments"
 in his Motion dated November 6, 2002 and Reply. These latter
pleadings are normally not allowed, but precisely because this Court
wanted to give him more than enough opportunity to be heard and to
argue, we have bent backwards and admitted these additional
pleadings.
4. Private respondent contends that as a member of Congress, he is
immune from arrest "arising from offenses punishable by not more
than six (6) years imprisonment," saying that he cannot be prevented
from performing his legislative duties because his constituents would
be disenfranchised. He perorates that a member of Congress may be
suspended or removed from office only by two thirds vote of the House
of Representatives.chanrob1es virtua1 1aw 1ibrary
Citing People v. Jalosjos, our Decision has already debunked the
disenfranchisement argument. Furthermore, our Decision does not in
any manner suspend or remove him from office. Neither his arrest or
detention arising from the extradition proceeding will constitute his
suspension or removal from office. That is clear enough.
While equal protection and reasonable classifications are not directly
in issue in this case, we nevertheless stress, paraphrasing Jalosjos,
that respondent’s election to the position of congressman, does not
constitute a substantial differentiation which warrants placing him in a
classification or category apart from all other persons confined and
deprived of their liberty pending resolution of their extradition cases.
We reiterate that lawful arrest and temporary confinement of a
potential extraditee are germane to the purposes of the law and apply
to all those belonging to the same class.
As we have stated, the procedure adopted by the Extradition Court of first
notifying and hearing a prospective extraditee before the actual issuance of the
warrant for his arrest, is tantamount to giving notice to flee and avoid
extradition. Whether a candidate for extradition does in fact go into hiding or
not is beside the point. In the final analysis, the method adopted by the lower
court was completely in dispute with the purpose, object and rationale of the
law, and overlooked the evils to be remedied.
As already suggested in our Decision, private respondent can avoid arrest and
detention which are the consequences of the extradition proceeding simply by
applying for bail before the courts trying the criminal cases against him in the
USA. He himself has repeatedly told us that the indictments against him in the
United States are bailable. Furthermore, he is capable, financially and
otherwise, of producing the necessary bail in the US. Why then has he not
done so?
Otherwise stated, Respondent Jimenez has the actual power to lift his arrest
and detention arising from his extradition by simply and voluntarily going to
and filing bail in the USA.
Page 42 of 73
Private respondent has not given any compelling reason to warrant a reversal
or modification of our earlier rulings.
WHEREFORE, the Motion for Reconsideration is hereby DENIED with finality.
VITUG, J., dissenting:
I vote to grant the motion for reconsideration and maintain my dissent.
Extradition is an exceptional measure running against the tradition of asylum.
The surrender of a person who has been granted the privilege of presence or
refuge in the requested state is deemed to be an exceptional measure running
against the tradition of asylum and hospitality of the requesting state, and it
has given rise to the speculation that the term "extradition" evolved from what
used to be then known as "extra-tradition."
Extradition, nevertheless, does not find basis in Customary International Law.
Despite its ancient roots, extradition, as it is presently exercised by states,
adopts the view represented by Puffendorf who argues that the duty to
extradite is only an imperfect obligation which requires an explicit
agreement in order to become fully binding under international law and
secure reciprocal rights and duties of the contracting states. 9 The
exception would be with respect to international crimes, such as
terrorism and genocide, in which extradition is seen as being a definite
legal duty. As D.W. Grieg so bluntly puts it, there exists no duty to extradite
under customary international law. 10 Prevailing practice among states indeed
supports the conclusion that the duty to extradite can be demanded only by
virtue of a treaty, whether bilateral or multilateral; 11 conversely, in its
absence, there is no legal right to demand and no corresponding
obligation to extradite. Once, of course, an extradition treaty is concluded,
respect for and compliance with the treaty obligation is, under the international
principle of pacta sunt servanda, expected from the states that enter into the
agreement.
Neither can extradition be considered a generally accepted principle of
international law.
Clarifying the term "generally-accepted principles of international law" during
the deliberations of the 1987 Constitutional Commission, Commissioner Adolfo
S. Azcuna points out that" (w)hen we talk of generally-accepted principles of
international law as part of the law of the land, we mean that it is part of the
statutory part of laws, not of the Constitution.
The remark is shared by Professor Merlin M. Magallona who expresses that
the phrase "as part of the law of the land" in the incorporation clause refers to
the levels of legal rules below the Constitution such as legislative acts and
judicial decisions. Thus, he contends, it is incorrect to so interpret this phrase
as including the Constitution itself because it would mean that the "generally-
accepted principles of international law" falls in parity with the Constitution.
A treaty being the primary source of the obligation to extradite has given
occasion to a lack of cohesive and uniform standards on extradition.
Not finding basis in customary law and failing to qualify as a generally-
accepted principles of international law, the present state of international law
on the return of fugitives for trial is hypothesized by Brownlie: "With the
exception of alleged crimes under international law, surrender of an
alleged criminal cannot be demanded of right in the absence of treaty."
23 The result has been a failure of consistency in extradition practice among
states. Indeed, the reality is that there is to date no uniform standard
applicable to all states. D.W. Gregg 24 attributes this lack of "universal"
and cohesive standards in the extradition process to the adoption of a
variety of procedures which can be as diverse as the contracting states
would want them to be. In formulating their extradition treaties, contracting
states insert particular provisions and stipulations to address specific
particularities in their relationships (Example: English Extradition Act of 1870
requires that the offense, for which a fugitive is to be extradited, be also
considered a crime under English law. No such requirement, upon the other
hand, exists under the US Extradition Act, which limits "extraditable crimes" to
those enumerated under the treaty, regardless of whether the same are
considered crimes under its laws)."Since extradition is effected as the result of
the provisions of treaties entered into by the nations two by two, it is
impossible to formulate any general rule of law upon the subject."
The elevated status of a treaty over that of an ordinary statute is taking
ground.
The International Tribunal, has consistently held that, in consonance with the
Vienna Convention, a state cannot plead provisions of its own laws or
deficiencies in that law in an answer to a claim against it for an alleged breach
of its obligations under international law. From the standpoint of International
Law and of the International Court, municipal laws are merely expressions of
the will and constitute the activities of the states within its boundaries in
the same manner as do ordinary legal decisions or administrative
measures. But, viewed domestically, reactions have been varied. Differing
internal laws among the members of the international community has
resulted in the divergence of responses when treaty law clashes with
ordinary municipal law.
The principle being that treaties create rights and duties only for those who are
parties thereto — pacta tertiis nec nocre nec prodesse possunt — it is
considered necessary to transform a treaty into a national law in order to
Page 43 of 73
make it binding upon affected state organs, like the courts, and private
individuals who could, otherwise, be seen as non-parties. The US-RP
Extradition Treaty in particular, undoubtedly affects not only state
organs but also private individuals as well.
A treaty, nevertheless, cannot override the Constitution; in case of conflict, the
Constitution must prevail.
When a controversy calls for a determination of the validity of a treaty in the
light of the Constitution, there is no question but that the Constitution is given
primary consideration. When a state, through its government, concludes a
treaty with another state, the government of the latter has no reason and is not
entitled to question the constitutionality of the act of the former. But this rule
does not prevent the government of a state, after having concluded a
treaty with another state, from declaring the treaty null and void because
it is made in violation of its own constitution. This preeminence of the
Constitution over any treaty is not hard to explain. The Constitution is the act of
the people from whom sovereignty emanates. It reflects the popular will. A
treaty, on the other end, is merely negotiated by the treaty-making authority.
Surely a few good men, themselves mere delegates of the sovereign people,
cannot be permitted to thwart the intent of the Constitution. An agent could
never go beyond the mandate of the agency under whose authority he acts.
The 1987 Philippine Constitution has its own standards for the grant of bail.
No country is under any legal obligation to adopt, or blindly be in conformity
with, procedures from other jurisdictions. The proposed solution of
developing a "special circumstances standard" in determining whether
bail should be granted or not, following what could be considered to be
mere pro hac vice pronouncements of some foreign courts, might not be
apropos. Indeed, setting up the so-called "special circumstances
standard" would be to ignore our own constitutional mandate on bail.
Section 13, Article III, of the 1987 Constitution clearly sets the parameters for
the judicial exercise of the grant of bail —
"All persons, except those charged with offenses punishable by reclusion
perpetua, when evidence of guilt is strong, shall, before conviction, be bailable
by sufficient sureties, or be released on recognizance as may be provided by
law. The right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. Excessive bail shall not be required."
Starting with the declaration that the right to bail is available to all persons, the
Constitution proceeds to define its exceptions and qualifications — 1) when a
criminal offense is a capital one and the evidence of guilt is strong, and 2)
when granted the bail shall not be excessive. The circumstance of "high risk
of flight" upon which the main decision anchors its refusal to grant bail
is conspicuously absent from the recital. The Eighth Amendment of the US
Federal Constitution, unlike the Philippine Constitution does not categorically
provide for bail as a matter of right. Thus, wrestling with the compatibility of the
grant of bail in extradition proceedings with basic constitutional guarantees,
which US judges have been faced with, should not be our dilemma.
Extradition proceedings are part of the criminal process.
Verily, an extradition proceeding before the extradition court forms part of the
criminal process. It is predicated on criminal indictment of an extraditee.
Like any criminal proceeding, it ultimately ends in either conviction or
acquittal for the potential extraditee. Except for the reality that it involves
two sovereign states, at least, extradition proceedings before the extradition
court can be likened to the preliminary investigation conducted before an
investigating fiscal. Like the investigating fiscal, the judge acting in an
extradition proceeding does not rule on the issue of guilt or innocence of the
potential extraditee, his main concern being the determination of whether a
prima facie case exists against the potential extraditee. Stated otherwise, both
proceedings are an inquiry into whether a person should stand trial. The right
to a preliminary investigation is a component part of due process in the
criminal justice system. The initial findings of the investigating fiscal, which
may result in a dismissal of the case, could spare the respondent from hasty
malicious prosecution, as well as the resultant prolonged anxiety, aggravation
and humiliation, that a protracted trial brings. In the same vein, the extradition
process can result in an extended restraint of liberty following arrest that
can even be more severe than the accompanying detention within a
single state. Extradition involves, at minimum, administrative processings
in both the asylum state and the demanding state and a forced
transportation in between. Thus, the rules governing the extradition
process should not be viewed as existing in a vacuum, totally divergent
and isolated from the entire criminal process of which it, in fact, forms
part. Indubitably, bail is available in this country even in the preliminary
investigation stage. The eligibility for bail exists once the person is placed
under legal custody regardless of whether a complaint or information
has been filed or yet to be filed in court against him.
In sum, I yield to the following submissions:
a) The obligation to extradite does not find basis in customary international
law, nor is it a generally accepted principle of international law, the
commitment to extradite being dependent, by and large, on an extradition
treaty between two sovereign states.
b) There is an absence of a "universal" or "uniform" extradition practice
applicable to all states. This lack of a "standard" extradition procedure should
Page 44 of 73
mean that the Philippines is not obligated to follow extradition practices from
other jurisdictions, particularly when its own Constitution itself has provided for
such standards.
c) A treaty, entered into by the delegated authority although occupying an
elevated status in the hierarchy of laws predicated on the principle of pacta
servanda, cannot override the Constitution, the latter being the ultimate
expression of the will of the People from whom all sovereignty emanates. In
case of conflict, the Constitution must prevail.
WHEREFORE, I vote to grant the motion for reconsideration.
YNARES-SANTIAGO, J., dissenting:
The draft ponencia would assume that the Constitution confines the grant of
provisional liberty to criminal cases, and that it has no application to extradition
proceedings. This assumption would have reason for being if it was solely in
criminal cases that a person could face an imminent threat of deprivation of his
right to life or liberty, for indeed, it is this threat, rather than case nomenclature,
that must be the focus and it would be superficial to think otherwise. While
defying a neat definition, extradition has all the earmarks of a criminal
process — an extraditee would suffer deprivations, be denied his
freedom and restricted in his movements, not much unlike a criminal
indictee. Extradition proceedings involve an extended restraint of liberty
following arrest, peculiar to an accused in a criminal case, which can
even be more severe than an accompanying detention in a single state,
for at a minimum, it can mean protracted proceedings in both the asylum
state and the demanding state and a forced transportation in between. In
Herras Teehankee v. Rovira, the Court observed that bail is constitutionally
available to all persons, even those against whom no formal charges are filed.
It should be borne in mind that the private respondent has most definitely been
indicted, 7 and the threat to the loss of his freedom is very real. If the purpose
of bail is to relieve an accused from the rigors of imprisonment until his
conviction and yet secure his appearance at trial, 8 then by analogy, an
extraditee, who may or may not yet have been charged, and who is
threatened with temporary imprisonment in both the requested and
requesting states, should also benefit from the right to bail. Due to the
striking similarity in their circumstances, there is therefore no sufficient
basis for distinguishing between an accused person and a potential
extraditee in terms of their entitlement to bail. This occasion calls for the
adherence to the well-entrenched principle ubi lex non distinguit nec nos
distinguere debemos. 9 The Constitutional grant of bail should, as a matter of
right, be made available to the accused and the extraditee alike.
In our jurisdiction, the supreme law governing the question of bail is the
Constitution, and its hallowed provisions dictate the general rule that bail is
granted as a matter of right, with its denial reserved to very few and very
specific instances. Being the subject of an extradition request is not one of
these exceptions.
It is unfortunate that the draft resolution proposes to summarily deny
petitioner’s Motion for Reconsideration. This case could have provided this
Court with the opportunity to pass upon a novel issue and, in the process,
uphold the supremacy of Constitutional rights. Instead, the right to bail has
been reduced to a hollow promise and has lost its efficacy as a fundamental
right of the individual.
I vote to GRANT the motion for reconsideration.
Clinton v. Jones (1997)
Summary with Procedural History.
The Respondent, Paula Jones Corbin (Respondent), filed a complaint in
federal district court in Arkansas containing four counts against the Petitioner,
President Clinton (Petitioner), alleging the Petitioner made unwanted sexual
advances towards her when he was the Governor of Arkansas. Clinton filed
motions asking the district court to dismiss the case on grounds of presidential
immunity and prohibit Jones from refiling the suit until after the end of his
presidency. The district court rejected the presidential immunity argument but
allowed that no trial would take place until Clinton was no longer president.
Both Clinton and Jones appealed to the U.S. Supreme Court, which granted
certiorari.
Doctrine.
Presidential immunity applies only to official acts. It is intended to ensure that
the functions of the office are performed without fear of personal liability. Thus,
unofficial acts are not protected.
The Facts.
 Bill Clinton was elected to the presidency in 1992 and reelected in
1996. Prior to the presidency, Clinton held the office of governor of
Arkansas.
 In 1994, Paula Corbin Jones filed suit in federal district court in
Arkansas against Clinton and Arkansas state trooper Danny Ferguson
over an incident that was alleged to have occurred at the Excelsior
Hotel on May 8, 1991.
 Respondent Jones, then an employee of the state, was working at the
registration desk of a conference in which Governor Clinton delivered
a speech. Jones alleges Trooper Ferguson told her that Governor
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Clinton wanted to see her in his room, and Ferguson escorted her to
the room. Once in the room, Clinton begins to make unwanted sexual
advances towards Jones.
 Petitioner Clinton denies the allegations and claims that the lawsuit is
politically motivated.
 Clinton filed a motion to dismiss the case on the grounds of
presidential immunity until he was no longer president, arguing that
unless immunity is available, the threat of judicial interference with the
Executive branch would violate separation of powers principles.
 Petitioner's strongest argument is based on the text and structure of
the Constitution. He does not contend that the occupant of the Office
of the President is "above the law," in the sense that his conduct is
entirely immune from judicial scrutiny. The President merely argues for
a postponement of the judicial proceedings that will determine whether
he violated any law.
 The respondent countered that there was no precedent for the
president’s position, and that the case did not pose any threat to the
presidential office.
 The U.S. District Court for the Eastern District of Arkansas denied the
motion to dismiss on immunity grounds, ruling that discovery could go
forward, but staying the trial until the end of the petitioner’s presidency.
Both parties appealed.
 The U.S. Court of Appeals for the Eighth Circuit affirmed the
dismissing denial, but reversed the order postponing the trial because
it was the “functional equivalent” of an unconstitutional grant of
temporary immunity. The president appealed.
ISSUE + RULING:
W/N the President can be involved in a lawsuit during his presidency for
actions that occurred before the tenure of his presidency that were not related
to official duties of the presidency? YES.
 Presidential immunity applies only to official acts. It is intended to
ensure that the functions of the office are performed without fear of
personal liability. Thus, unofficial acts are not protected.
 The principal rationale for affording Presidents immunity from
damages actions based on their official acts--i.e., to enable them to
perform their designated functions effectively without fear that a
particular decision may give rise to personal liability, see, e.g., Nixon v.
Fitzgerald, provides no support for an immunity for unofficial conduct
 The Federal Constitution did not require that federal courts (in all but
the most exceptional cases) defer civil damages litigation against the
President until the President’s term ended when such litigation was
based on actions allegedly taken before the President’s term.
Because:
 a) a temporary immunity from suit for unofficial acts, grounded purely
in the identity of the President’s office, was unsupported by
precedent of the Supreme Court1
b) the doctrine of separation of powers did not require federal courts
to stay all private actions against the President until the President
left office;
c) Separation of powers is intended to keep each of the three equal
branches of government from gaining authority at the expense of
another. The courts would not be gaining any new power. They
would be exercising the powers granted them in Article III of the
Constitution.
d) Whatever the outcome of this case, there is no possibility that the
decision will curtail the scope of the official powers of the
Executive Branch. The litigation of questions that relate entirely to
the unofficial conduct of the individual who happens to be the
President poses no perceptible risk of misallocation of either
judicial power or executive power.
 It was an abuse of discretion for the District Court, which had
jurisdiction to decide the case at hand, to defer the trial until the
President left office, because (a) such a lengthy and categorical stay
took no account of the individual’s interest in bringing the case
to trial, (b) the decision to postpone the trial was premature, and (c)
no impingement upon the President’s conduct of his office had
been shown.
 The district court abused its discretion when it stayed the case
because the court lacked the information to determine whether a stay
would even be necessary after discovery and did not consider the
respondent’s interest in a quick trial and the loss of evidence a delay
might bring.
 The stay was not “the ‘functional equivalent’ of a grant of temporary
immunity” because the district court has discretion to stay proceedings
as part of it’s power to control it’s own docket. 2
 The United States Constitution (Constitution) does not automatically
grant the President of the United States immunity from civil lawsuits
based upon his private conduct unrelated to his official duties as
President
1
The judiciary’s exercise of this power in neither this case nor any resulting cases would
unduly burden the President or prevent him from carrying out his official duties. There have
been scant lawsuits against presidents historically, such lawsuits are usually resolved quickly,
and the issues in this case are relatively unique.
2 and because they ordered discovery proceed and because possible burdens placed on the
president must be considered
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Disposition:
“The Federal District Court has jurisdiction to decide this case. Like every other
citizen who properly invokes that jurisdiction, respondent has a right to an
orderly disposition of her claims. Accordingly, the judgment of the Court of
Appeals is affirmed.”
Forbes v. Chuoco Tiaco (1910)
FACTS:
 Chuoco Tiaco is a Chinese national residing in Manila for 29 years. He
has acquired and is the owner of property and business interests and
enterprises of great value within the Phil. Islands, which require his
personal presence for proper management, supervision and
preservation.
o He also has a family in the Philippine Islands which is dependent
on him for support. He is also a holder of a certificate of admission
in the Philippine Islands.
 On 1 April 1910, Chuoco Tiaco filed a suit in CFI Manila against
Forbes (Governor General), Harding (chief of police) and Trowbridge
(chief of the secret service) for a writ of injunction and indemnity worth
P20,000 because he was deported from the Philippine Islands to
Amoy, China on 19 August1909 without due process by Harding and
Trowbridge acting upon Forbes’ order. He was able to return to the
Philippine Islands on 29 March 1910.
 Judge Crossfield of the CFI Manila issued the injunction against
Forbes et al enjoining them from deporting Chuoco Tiaco back to
China.
 CHUOCO TIACO’S ARGUMENT: The Governor General in deporting
Chuoco Tiaco did not act with due process as required by Sec. 5 of
the Philippine Bill of 1902. He was summarily deported without
hearing.
 FORBES ET AL’S ARGUMENTS:
o CFI has no jurisdiction over the matter because the power to
deport foreign subjects is a private one exercised by the Governor
General, Forbes.
o In the absence of express rules and regulations for carrying the
power of deportation into operation, the Governor General had a
right to use his own official judgment and discretion in the exercise
of such power.
o Said deportation was done in compliance of the request of
Chinese consul-general.
ISSUES + RULING:
Does US Government in the Philippine Islands have the power to deport or
expel objectionable aliens? Yes
 The US Government in the Phil. Islands is a government possessed with
"all the military, civil, and judicial powers necessary to govern the
Philippine Islands" and as such has the implied or inherent power and
duty, through its political department, to deport aliens whose presence in
the territory is found to be injurious to the public good and domestic
tranquility of the people. This view is supported by international law
authors (namely Vattel, Ortolan, Blackstone, Cooley, Oppenheim,
Westlake, Phillimore, Taylor, Marthens et al), jurisprudence (In Re
Patterson [Phil case] and US cases of Chao Chan Ping vs. US, Ekiu vs.
US, and Fong Yue Ting vs. US) and has been recognized many times by
the executive and legislative branches of the Government (such as acts of
the US Congress, of the British Parliament and the British colonial
parliaments).
Is the Governor-General authorized to exercise the power to deport aliens?
Yes
 The Governor-General, acting in his political and executive capacity, is
invested with plenary power to deport obnoxious aliens, whose continued
presence in the territory is found by him to be injurious presence to the
public interest, and in the method of deporting or expelling them, he may
use such method as his official judgment and good conscience may
dictate.
o Justice Holmes in Moyer vs. Peabody, Governor of Colorado (US
case) opined that the question of what is due process of law
“depends on circumstances” and varies with the subject-matter
and necessities of the situation. Thus, summary proceedings
suffice for taxes and executive decision for exclusion from the
country.”
o The certificate of admission is a mere license and may be revoked
at any time. An alien’s right to remain in the territory of a foreign
government is a purely political one and may be terminated at the
will of such government.
Can the judiciary interfere with the Governor-General’s exercise of such
power? No
 Since the power to deport or expel obnoxious aliens is invested in the
political department of the Government, the judicial department will not, in
the absence of express legislative authority, intervene for the purpose of
controlling such power, nor the purpose of inquiring whether or not he is
liable in damages for the exercise thereof. For the judiciary to interfere for
the purpose of questioning the manner of exercising the legal, political,
inherent duties of the chief executive head of the government would, in
effect, destroy the independence of the departments of the government.
Page 47 of 73
May Chuoco Tiaco recover damages from the Governor General et al for their
allegedly illegal acts in deporting Chuoco Tiaco without due process? No
 No one can be held legally responsible in damages or otherwise for doing
in a legal manner what he had authority, under the law, to do. Therefore, if
the Governor-General had authority, under the law, to deport or expel the
defendants, and the circumstances justifying the deportation and the
method of carrying it out are left to him, then he cannot be held liable for
damages for the exercise of this power.
DISPOSITION: CFI of Manila was without jurisdiction; Directed to dismiss the
action.
Concurring Opinion, Moreland and Trent:
 On civil liability of judges: Whenever the State confers judicial powers
upon an individual, it confers them with full immunity from private suits.
The immunity of the judges from personal liability for damages resulting
from their wrongful acts while in the discharge of the duties of the office
rests wholly in public policy. These are the reasons for such immunity:
o To not occupy the judge's time and mind with the defense of his
own interests, when he should be giving them up wholly to his
public duties.
o To not lower the estimation in which his office is held by the public,
and any adjudication against him lessens the weight of his
subsequent decisions.
o To avoid the instance when the judge is invited him to consult
public opinion and public prejudices,]when he ought to be wholly
above and uninfluenced by them.
o To avoid multiple litigation, as it would open each case to endless
controversy. If one judge can be tried for his judgment, the one
who presides on the trial may also be tried for his, and thus the
process may go on until it becomes intolerable.
o Where the judge is really deserving of condemnation, a
prosecution at the instance of the State is a much more effectual
method of bringing him to account than a private suit.
 Neither the members of the legislature nor the executive are subject
to personal liability for damages either by their failure to perform
their duties or for their open defiance of the plain command of the
constitution to perform them. The power to interfere is the power to
control. The power to control is the power to abrogate. Upon what
reasons, then, may we base the right of the courts to interfere with the
executive branch of the government by taking cognizance of a personal
action against the chief executive for damages resulting from an official
act; for, to take jurisdiction of such an action is one of the surest methods
 of controlling his action. We have already seen the dangers which lurk in
the unhampered privilege of personal suit against the chief executive.
 The principle of non-liability does not mean that the judiciary has no
authority to touch the acts of the Governor-General. Such a construction
would mean tyranny. The Governor-General, like the judges of the courts
and the members of the Legislature, may not be personally mulcted in civil
damages for the consequences of an executed in the performance of his
official duties. The judiciary has full power to declare an act of the
Governor-General illegal and void and place as nearly as possible in
status quo any person who has been deprived of his liberty or his property
by such act.
 The Governor General will be protected from personal liability for
damages not only when he acts within his authority, but also when
he is without authority, provided he actually used discretion and
judgment, that is, the judicial faculty, in determining whether he had
authority to act or not. He is entitled to protection in determining the
question of his authority.
 Since the power to deport is conferred upon the Governor General,
Harding and Trowbridge were not acting as principals but "merely the
hands of the Governor-General." There is no reason to hold Harding and
Trowbridge liable when the person whose act they were in reality
performing is himself free from responsibility.
Kuroda v. Jalandoni (1949), supra
FACTS:
 July 29, 1947: Executive Order No. 68, establishing a National War
Crimes Office and prescribing rules and regulations governing
the trial of accused war criminals, was issued by the President of
the Philippines (Roxas).
 Petitioner Shigenori Kuroda was a Lieutenant-General of the
Japanese Imperial Army and Commanding General of the Japanese
Imperial Forces in the Philippines from 1943 to 1944
 He is charged before a Military Commission convened by the Chief of
Staff of the AFP, with having unlawfully disregarded and failed "to
discharge his duties as such commander to control the
operations of members of his command, permitting them to
commit brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial Japanese
Forces, in violation of the laws and customs of war”
 He comes before the SC seeking to establish the illegality of EO No.
68
o to enjoin and prohibit respondents Melville S. Hussey and
Robert Port from participating in the prosecution of Kuroda's
case before the Military Commission; and to permanently
Page 48 of 73
prohibit respondents Jalandoni et al from proceeding with his
case.
 Kuroda’s principal arguments:
o (1) EO No. 68 is illegal on the ground that it violates not only
the provisions of our constitutional law but also our local laws,
to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on
Rules and Regulations covering Land Warfare and,
therefore, Kuroda is charged of 'crimes' not based on law,
national and international."
 Thus, since the Military Commission was empanelled
by virtue of an unconstitutional law and an illegal
order, this commission is without jurisdiction to try
Kuroda.
o (2) The participation in the prosecution of attorneys Melville
Hussey and Robert Port (in behalf of the USA), who are not
attorneys authorized by the SC to practice law in the
Philippines, is a diminution of the Philippines’ personality as
an independent state, and their appointments as prosecutors
are a violation of the Constitution for the reason that they are
not qualified to practice law in the Philippines.
o (3) Attorneys Hussey and Port have no personality as
prosecutors, the US not being a party in interest in the case.
ISSUE + RULING:
Is EO 68 valid and constitutional? YES.
 CONST, Art II, Sec 3: "The Philippines renounces war as an
instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of the nation."
 In accordance with the generally accepted principles of international
law of the present day, including the Hague Convention, the Geneva
Convention and significant precedents of international jurisprudence
established by the United Nations, all those persons, military or
civilian, who have been guilty of planning, preparing or waging a
war of aggression and of the commission of crimes and offenses
consequential and incidental thereto, in violation of the laws and
customs of war, of humanity and civilization, are held
accountable therefor.
 Consequently, in the promulgation and enforcement of EO 68, the
President has acted in conformity with the generally accepted
principles and policies of international law which are part of our
Constitution.
o It was an exercise of his powers as Commander in Chief of all
our armed forces (Yamashita v. Styer)
  War is not ended simply because hostilities have
ceased. After cessation of armed hostilities, incidents
of war may remain pending which should be disposed
of as in time of war. The power to create a military
commission for the trial and punishment of war
criminals is an aspect of waging war.
GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW
 Kuroda argues: Military Commission has no jurisdiction to try Kuroda
for acts committed in violation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to
the first and signed the second only in 1947.
 SC: It cannot be denied that the rules and regulations of the
Hague and Geneva conventions form part of an are wholly based
on the generally accepted principles of international law. In fact,
these rules and principles were accepted by the two belligerent
nations, the US and Japan, who were signatories to the two
Conventions. Such rules and principles, therefore, form part of the
law of our nation even if the Philippines was not a signatory to
the conventions embodying them, for our Constitution has been
deliberately general and extensive in its scope and is not
confined to the recognition of rules and principles of
international law as contained in treaties to which our
government may have been or shall be signatory.
 Furthermore, when the crimes charged against Kuroda were
allegedly committed, the Philippines was under the sovereignty
of the United States. These rights and obligations were not erased by
our assumption of full sovereignty. If at all, our emergence as a free
state entitles us to enforce the right, on our own, of trying and
punishing those who committed crimes against our people.
 Laurel vs. Misa: The change of our form of government does not
affect the prosecution of those charged with the crime of treason,
because it is an offense against the same government and the same
sovereign people.
ON THE PARTICIPATION OF AMERICAN ATTORNEYS
 The Military Commission is a special military tribunal governed by a
special law and not by the Rules of Court which govern ordinary civil
courts. There is nothing in said EO 68 which requires that counsel
appearing before said commissions must be attorneys qualified to
practice law in the Philippines. In fact, it is common in military tribunals
that counsel for the parties are usually military personnel who are
neither attorneys nor even possessed of legal training.
 The appointment of the two American attorneys is not violative of our
national sovereignty. It is only fair and proper that the US, which has
submitted the vindication of crimes against her government and her
people to a tribunal of our nation, should be allowed representation in
Page 49 of 73
the trial of those very crimes. If there has been any relinquishment of
sovereignty, it has not been by our government but by the US
Government which has yielded to us the trial and punishment of her
enemies. The least that we could do in the spirit of comity is to allow
them representation in said trials.
 On the argument that US is not a party in interest and the challenge on
the Attorney’s personality: the US and its people have been equally, if
not more greatly, aggrieved by the crimes with which Kuroda stands
charged before the Military Commission. It can be considered a
privilege for our Republic that a leader nation should submit the
vindication of the honor of its citizens and its government to a military
tribunal of our country.
DISPOSITION: Petition denied.
PERFECTO. J., dissenting:
 On Attorneys Hussey and Port: It appearing that they are aliens and
have not been authorized by the SC to practice law, there could not be
any question that said persons cannot appear as prosecutors in
Kuroda's case, as with such appearance they would be practicing law
against the law.
 Said violation vanishes, however, into insignificance at the side of the
momentous questions involved in the challenge against the validity of
EO No. 68.
EXECUTIVE LEGISLATION
 J. Perfecto went on to reproduce the entire text of the EO and declare
that it is a veritable piece of legislative measure, without the benefit of
congressional enactment.
 EO 68 establishes a National War Crimes Office, and the power to
establish government office is essentially legislative.
o The order provides that persons accused as war criminals
shall be tried by military commissions; this is legislative in
nature. The power to define and allocate jurisdiction for the
prosecution of persons accused of any crime is exclusively
vested by the Constitution in Congress.
o It appropriates the sum of P700,000 for the expenses of the
National War Crimes Office established by the said EO. This
constitutes another usurpation of legislative power as the
power to vote appropriations belongs to Congress.
 The EO also provides rules of procedure for the conduct of trials. This
is a usurpation of the rule-making power vested by the Constitution in
the SC.
o It authorizes military commissions to adopt additional rules of
procedure. If the President cannot exercise the rule-making
power vested by the Constitution in the SC, he cannot, with
more reason, delegate that power to military commissions.
  Respondents Jalandoni et al attempted to suggest that the President
issued EO 68 under the emergency powers granted to him by
Commonwealth Act No. 600, as amended by CA No. 620, and CA No.
671
 J. Perfecto also proceeded to reproduce the text of CA 600 and CA
671 and said that the Acts cannot validly be invoked, because they
ceased to have any effect much before EO No. 68 was issued on July
29, 1947.
 Said Acts had elapsed upon the liberation of the Philippines from the
Japanese forces or, at the latest, when the surrender of Japan was
signed in Tokyo on September 2, 1945.
 When both Acts were enacted by the Second National Assembly, we
(i.e. J. Perfecto) happened to have taken direct part in their
consideration and passage, not only as one of the members of said
legislative body but as chairman of the Committee on Third Reading,
popularly known as the "Little Senate."
 Said measures were enacted by the Second National Assembly for the
purpose of facing the emergency of an impending war and of the
Pacific War that finally broke out with the attack of Pearl Harbor on
Dec 7, 1941.
o 1935 Consti: "In times of war or other national emergency, the
Congress may by law authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to
promulgate rules and regulations to carry out a declared
national policy." (Article VI, section 26.)
 It has never been the purpose of the National Assembly to extend the
delegation beyond the emergency created by the war, as to extend it
farther would be violative of the express provisions of the Constitution.
o Only a few months after liberation and even before the
surrender of Japan, or since the middle of 1945, the Congress
started to function normally.
VIOLATION OF DUE PROCESS AND EQUAL PROTECTION
o The EO permits the admission of many kinds of evidence by which no
innocent person can afford to get acquittal, and by which it is
impossible to determine whether an accused is guilty or not beyond all
reasonable doubt.
o The rules of evidence adopted in the EO are a reproduction of the
regulations governing the trial of twelve criminals, issued by General
Douglas MacArthur, Commander in Chief, of the US Armed Forces in
Western Pacific, for the purpose of trying, among others, Generals
Yamashita and Homma.
o What we said in our concurring and dissenting opinion to the
Yamashita case (Dec 19, 1945) and in our concurring and dissenting
opinion in the Homma case (Jan 23, 1946), are perfectly applicable to
the offensive rules of evidence embodied in EO 68. Said rules of
Page 50 of 73
evidence are repugnant to conscience as under them no justice can
be expected.
David v. Macapagal-Arroyo (2006)
FACTS:
 Feb. 24, 2006: On the 20th anniv. of EDSA revolution, PGMA issued
Presidential Proclamation No. 1017 3 (PP 1017) declaring a state of
national emergency. She also issued General Order No. 54 (G.O. No. 5)
implementing PP 1017.
o They were issued allegedly to suppress the lawlessness of certain
elements and the conspiracy between the opposition, the NDF-
CPP-NPA (Extreme Left) and the military adventurists (Extreme
Right) to assassinate her and take over the government. The
claims of said elements have been magnified by the national
media.
o Some Madgalo members who were indicted in the Oakwood
mutiny escaped their detention cell and issued public statements
calling the people to go to the streets and protest. One of their
members, a Lt. San Juan, was recaptured and in his possession
were flash disks which contained recordings of meetings bet. NPA
and Magdalo. He also said thru DZRH that Magdalo’s D-Day was
on Feb. 24.
o They also discovered a document (Oplan Hackle I) which
contained plans for bombings during the PMA Alumni
Homecoming and a plot to assassinate some cabinet members
and PGMA. A bomb was allegedly found during the celebration.
3 xxx as President of the Republic of the Philippines, and Commander-in-Chief of the Republic
of the Philippines and by virtue of the powers vested upon me by Sec. 18, Art. 7 of the
Phil. Const. which states that: “The President. . . whenever it becomes necessary, . . . may
call out (the) armed forces to prevent or suppress. . .rebellion. . .,” and in my capacity as
their Commander-in-Chief, do hereby command the AFP, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act
of insurrection or rebellion and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction; and as
provided in Sec. 17, Article 12 of the Const. do hereby declare a State of National
Emergency
4 I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers
and men of the AFP and PNP, to immediately carry out the necessary and appropriate
actions and measures to suppress and prevent acts of terrorism and lawless violence.
 o Military heads (B/Gen. Lim & Col. Querubin) also confided to the
Chief of Staff of the AFP, that a huge number of soldiers would
join the rallies to provide a critical mass and armed component to
the Anti-Arroyo protests.
o Head of Leftists groups (CPP-NPA and NDF) proclaimed that the
end of Arroyo’s regime was drawing near.
o There was also a bombing of telecommunication towers and cell
sites in Bulacan and Bataan and a raid of an army outpost in
Benguet resulting to the death of 3 soldiers.
o Art. 2, Sec. 4 of the Const. makes the defense and preservation of
the democratic institutions and the State the primary duty of
Government. Said activities and collateral effects constitute a clear
and present danger to the safety and the integrity of the State and
of the Filipino people
 Pursuant to the issuances, PGMA cancelled all plans to celebrate the 20 th
anniv. of EDSA and revoked permits earlier issued by the local gov’t to
hold rallies, banned all rallies and canceled all permits for public
assemblies.
o Despite this, KMU & NAFLU-KMU marched from various parts of
Metro Manila with the intention of converging at the EDSA shrine.
However, they were violently dispersed by huge clusters of anti-
riot police who cited PP 1017 as the ground for the dispersal of
their assemblies.
o Among those arrested (without warrant) were Randy David and his
companion, Ronald Llamas, president of Akbayan.
 Feb. 25, 2006 (12:20 AM): Operatives of the PNP-CIDG, on the basis of
PP 1017 and G.O. No. 5, also raided the Daily Tribune offices, of which
Cacho-Olivares is the editor, confiscating news stories etc. The police also
surrounded the premises of another pro-opposition paper, Malaya, and its
sister publication, the tabloid Abante.
o PNP warned that it would take over any media organization that
would not follow “standards set by the government during the state
of national emergency.”
 On the same day, the police arrested Cong. Beltran of Anakpawis and
Chairman of KMU while leaving his farmhouse in Bulacan. His warrant
was allegedly dated on 1985, a remnant of the Marcos regime. When his
members visited him, they were not admitted bec. of PP 1017 and G.O.
No. 5.
 Bayan Muna Rep. Satur Ocampo eluded arrest at the Sulo Hotel in QC but
his 2 drivers were taken into custody while Retired Major Gen. Montaño,
former head of the Phil. Const., was arrested while at a golf club. Attempts
were also made to arrest Rep. Mariano, Bayan Muna’s Ted Casiño &
Gabriela’s Liza Maza. The “Batasan 5” were subsequently under the
custody of HoR.
Page 51 of 73
 7 consolidated petitions for certiorari and prohibition were filed
alleging that in issuing PP 1017 and G.O. No. 5, PGMA committed grave
abuse of discretion and the issuances are void for being unconstitutional.
o 3 of these petitions impleaded PGMA as respondent (G.R. No.
171396 – David, G.R. No. 171483 – KMU, G.R. No. 171424 –
Legarda)
 Mar. 3, 2006: However, PGMA subsequently lifted PP 1017 and issued
Proc. No. 1021 declaring that the state of national emergency has ceased
to exist because the AFP and PNP have effectively quelled the said
activities.
PETITIONERS’ ARGUMENTS
 G.R. No. 171396: Prof. Randolf David, Lorenzo Tanada III, Ronald
Llamas, H. Harry Roque, Joel Butuyan, Roger R. Rayer, Gary S. Mallari,
Romel Regalado Bagares, Christopher Bolastig vs. Gloria Macapagal –
Arroyo as President and Commander in Chief, Exec. Sec. Eduardo
Ermita, Hon. Avelino Cruz II, Sec. of Nat’l Defense, Gen. Generoso
Senga, Chief of Staff, AFP, Dir. Gen. Arturo Lomibao, Chief, PNP
o Assailed PP 1017 on the grounds that (1) it encroaches on the
emergency powers of Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and
(3) it violates the constitutional guarantees of freedom of the
press, of speech and of assembly.
 G.R. No. 171409: Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
vs. Exec. Sec. Ermita and Lomibao
o Challenged the CIDG’s act of raiding the Daily Tribune offices: (1)
Such raid is a clear case of “censorship” or “prior restraint.” (2)
“Emergency” refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is “absolutely no emergency” that
warrants the issuance of PP 1017.
 G.R. No. 171485: Rep. Escudero, and 21 other members of the HoR vs.
Ermita, Cruz, Senga, Puno, Lomibao
o PP 1017 and G.O. No. 5 constitute “usurpation of legislative
powers”; “violation of freedom of expression” and “a declaration of
martial law and PGMA “gravely abused her discretion in calling out
the armed forces without clear and verifiable factual basis of the
possibility of lawless violence and a showing that there is
necessity to do so.”
 G.R. No. 171483: KMU, NAFLU-KMU, and their members vs. Her
excellency, Pres. Gloria Macapagal-Arroyo, Ermita, Senga, Lomibao
o PP 1017 and G.O. No. 5 are unconstitutional because: (1) they
arrogate unto PGMA the power to enact laws and decrees; (2)
their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably
assemble to redress their grievances.
 G.R. No. 171400: Alternative Law Groups, Inc. vs. Ermita, Lomibao,
Senga
o PP 1017 and G.O. No. 5 are unconstitutional because they violate:
(a) Sec. 4 of Art. II (prime duty of the Government is to serve and
protect the people); (b) Sec. 1 (due process), Sec. 2 (unlawful
search and seizure) and Sec. 4 (freedom of speech, expression,
press, assembly, petition for grievances) of Article III; (c) Sec. 23
of Art. VI (Congress has sole power to declare existence of a state
of war and President must be authorized by Congress by law to
exercise powers necessary to carry out policy in times of war or
other national emergency); (d) Sec. 17 of Art. XII (State may
during emergency temporarily direct operation of any privately
owned public utility in times of national emergency, when the
public interest so requires)
 G.R. No. 171489: Cadiz et al. and IBP vs. Ermita, Lomibao, Senga
o PP 1017 is an “arbitrary and unlawful exercise by the President of
her Martial Law powers.” Assuming that PP 1017 is not really a
declaration of Martial Law, “it amounts to an exercise by the
President of emergency powers without congressional approval”
and “goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code.”
 G.R. No. 171424: Loren Legarda vs. Gloria Macapagal-Arroyo, in her
capacity as President and Commander-in-Chief, Lomibao, Senga,
Ermita
o PP 1017 and G.O. No. 5 are “unconstitutional for being violative of
the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on
matters of public concern and such issuances prevented her from
fully prosecuting her election protest pending before the PET.
RESPONDENTS’ COMMENTS
 The intent of the Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the armed forces.
None of the petitioners has shown that PP 1017 was without factual
bases.
 OSG countered that:
o (1) Petitions should be dismissed for being moot;
o (2) Petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda),
171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz
et al.) have no legal standing;
o (3) It is not necessary for petitioners to implead President
Arroyo as respondent;
o (4) PP 1017 has constitutional and legal basis; and
o (5) PP 1017 does not violate the people’s right to free expression
and redress of grievances.
Page 52 of 73
ISSUES + RULING:
Whether it was proper to implead PGMA as respondent? (NO)
 Incidentally to the issue of locus standi (which petitioners all have), it is not
proper to implead PGMA as respondent.
 The President, during his tenure of office or actual incumbency, may
not be sued in any civil or criminal case, and there is no need to provide
for it in the Constitution or law.
o From the deliberations of the Const. Commission, the intent of the
framers is clear that the immunity of the President from suit is
concurrent only with his tenure and not his term. (De Leon)
 It will degrade the dignity of the high office of the President, the Head of
State, if he can be dragged into court litigations while serving as such.
 It is important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions.
 Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the
discharge of the many great and important duties imposed upon him by
the Const. necessarily impairs the operation of the Government.
 HOWEVER, this does not mean that the President is not accountable
to anyone. Like any other official, he remains accountable to the
people.
o Sec. 1, Art. XI of the Const: Public Office is a public trust. Public
officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives.
 But he may be removed from office only in the mode provided by law and
that is by impeachment. (Sec. 2., Art. XI of the Const.)
OTHER ISSUES NOT RELATED
A. PROCEDURAL
Whether the issuance of PP 1021 renders the petitions moot and academic?
(NO)
 Subsequent issuance of PP 1021 did not render the present petitions moot
and academic. During the 8 days that PP 1017 was operative, the police
officers committed illegal acts in implementing it.
 Also, the court may resolve a case otherwise moot and academic if all the
exceptions are present. Issuance of PP 1017 and G.O. No. 5 allegedly
violates the Constitution; the issues affect the public’s interest since they
involve people’s basic rights; SC has the duty to formulate guiding and
controlling constitutional precepts; and respondents’ contested actions are
capable of repetition.
Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI),
171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal
standing? (YES, all petitioners have locus standi)
 G.R. No. 171396 & G.R. No. 171409: David & Llamas and Cacho-
Olivares & Tribune Publishing Co. Inc have locus standi since they alleged
“direct injury” resulting from “illegal arrest” and “unlawful search”
committed by police operatives pursuant to PP 1017.
 G.R. No. 171485: Opposition Congressmen alleged there was usurpation
of legislative powers since the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used.
 G.R. No. 171400: As to ALGI, the liberality rule is applied. When the issue
concerns a public right, it is sufficient that the petitioner is a citizen and has
an interest in the execution of the laws.
 G.R. No. 171483: KMU asserted that the issuances violated its right to
peaceful assembly. Organizations may be granted standing to assert the
rights of their members.
 G.R. No. 171489 & G.R. No. 171424: Cadiz et al. and Loren Legarda only
have standing in view of the transcendental importance of the issue.
B. SUBSTANTIVE
Whether the Supreme Court can review the factual bases of PP 1017? (YES)
 Sec. 1, Art. VIII of 1987 Const. provides a new definition of judicial power
where the courts are authorized to also “determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government
 It is, however, incumbent upon the petitioner to show that the
President’s decision is totally bereft of factual basis”. Petitioners failed
to show that President Arroyo’s exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis.
Whether PP 1017 and G.O. No. 5 are unconstitutional? (In part, see
dispositive)
 In times of emergency, our Const. reasonably demands that we repose a
certain amount of faith in the basic integrity and wisdom of the President,
at the same time, it obliges him to operate within carefully prescribed
procedural limitations.
a. “Facial Challenge”
 A facial review of PP 1017, using the overbreadth doctrine, is uncalled for
since it is an analytical tool for testing “on their faces” statutes in free
speech cases and is not intended for testing the validity of a law that
“reflects legitimate state interest in maintaining comprehensive control
over harmful, constitutionally unprotected conduct”. Also, challengers
must establish that there can be no instance when the assailed law may
be valid which was not made in this case.
 Petitioners likewise did not even attempt to show that PP 1017 is vague in
all its application and that all men of common intelligence cannot
understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Calling-out Power
Page 53 of 73
 PP 1017 is constitutional insofar as it constitutes a call by the President for
the AFP to prevent or suppress lawless violence. Only criterion for the
exercise of the calling-out power is that “whenever it becomes
necessary,” the President may call the armed forces “to prevent or
suppress lawless violence, invasion or rebellion (Sec. 18, Art. VII of
the Const.).”
 PP 1017 is also not a declaration of Martial Law since it is plain that what
the President invoked was her calling-out power. As such, it cannot be
used to justify acts that only under a valid declaration of Martial Law can
be done (arrests w/out warrant, ban on public assemblies, censorship,
etc.).
“Take Care” Power
 However, PP 1017’s extraneous provisions giving the President express or
implied power (1) to issue decrees; (2) to direct the AFP to enforce
obedience to all laws even those not related to lawless violence as well
as decrees promulgated by the President; and (3) to impose standards on
media or any form of prior restraint on the press, are ultra vires and
unconstitutional.
 She cannot call the military to enforce or implement all laws but only such
laws pertinent to its duty to suppress lawless violence.
Power to Take Over
 Under Sec. 17, Art. XII of the Constitution, the President, in the absence of
a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
 A distinction must be drawn between the President’s authority to declare
“a state of national emergency” and to exercise emergency powers. Sec.
18, Article VII grants the President such power to declare a state of nat’l
emergency but the exercise of emergency powers, such as the taking
over of privately owned public utility or business affected with public
interest, requires a delegation from Congress.
 “Emergency,” as contemplated in our Constitution may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect.
c. “AS APPLIED CHALLENGE”
 G.O. No. 5 is also valid since it provides a valid standard – that the military
and the police should take only the “necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence.”
 But the words “acts of terrorism” found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be
deemed deleted from the said G.O since no law can be used as a guide to
determine the limits of the AFP’s authority in carrying out this portion of
G.O. No. 5.
 The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case. While the general purpose of PP 1017 is to
 command the AFP to suppress all forms of lawless violence, invasion or
rebellion, there is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the citizens’
constitutional rights.
 Hence (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the
KMU and NAFLU-KMU members; (3) the imposition of standards on
media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution,
the law and jurisprudence. Not even by the valid provisions of PP 1017
and G.O. No. 5.
DISPOSITION: Petitions are partly granted.
As to PP 1017
 PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by PGMA on
the AFP to prevent or suppress lawless violence.
 However, the provisions of PP 1017 commanding the AFP to enforce laws
not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL.
 The provision in PP 1017 declaring national emergency under Sec. 17,
Art. VII of the Const. is CONSTITUTIONAL, but such declaration does not
authorize the President to take over privately-owned public utility or
business affected with public interest without prior legislation.
As to G.O. No. 5
 G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
the AFP and the PNP should implement PP 1017, i.e. whatever is
“necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence.”
 Considering that “acts of terrorism” have not yet been defined and made
punishable by the Legislature, such portion of G.O. No. 5 is declared
UNCONSTITUTIONAL.
As to the warrantless arrest of David & Llamas, search and seizure of
Tribune offices, imposition of standards on media
 The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune
offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
Germany v. Italy (2012)
Page 54 of 73
QUICK FACTS: During World War II, German troops committed massacres,
forced labor and deportation against civilians in Italy and Greece. Claimants
who were victims/relatives of victims went to the Italian courts to seek
compensation by way of damages against Germany. Italian courts ruled in
favor of the claimants. Germany opposed, claiming that Italy, in allowing civil
claims to be brought against Germany in its courts, violated the jurisdictional
immunity which Germany enjoys under international law.
DOCTRINE: Customary international law continues to require that a State be
accorded immunity in proceedings for torts allegedly committed on the
territory of another State by its armed forces and other organs of State in
the course of conducting an armed conflict. A State is not deprived of
immunity by reason of the fact that it is accused of serious violations of
international human rights law or the international law of armed conflict.
FACTS:
 WWII. In June 1940, Italy entered World War II as an ally of Germany.
In 1943, Italy surrendered to the Allies and declared war on Germany.
German forces who occupied Italy and Greece at that time (1943-
1945) perpetrated many atrocities such as large-scale killings,
deportations and forced labor. In addition, German forces took
prisoner, both inside Italy and elsewhere in Europe, several hundred
thousand members of the Italian armed forces.
 On 10 February 1947, in the aftermath of the Second World War, the
Allied Powers concluded a Peace Treaty with Italy, regulating, in par-
ticular, the legal and economic consequences of the war with Italy.
 In 1953, the Federal Republic of Germany adopted the Federal
Compensation Law concerning Victims of National Socialist
Persecution (Bundesentschädigungsgesetz (BEG)) in order to
compensate certain categories of victims of Nazi persecution.
 The Federal Compensation Law was amended in 1965 to cover claims
by persons persecuted because of their nationality or their mem-
bership in a non-German ethnic group, while requiring that the persons
in question had refugee status on 1 October 1953.
 Even after the Law was amended in 1965, many Italian claimants still
did not qualify for compensation because they did not have refugee
status on 1 October 1953. Because of the specific terms of the Federal
Compensation Law as origi- nally adopted and as amended in 1965,
claims brought by victims having foreign nationality were generally
dismissed by the German courts.
 On 2 June 1961, two Agreements were concluded between the Fed-
eral Republic of Germany and Italy.
 o The first Agreement, which entered into force on 16
September 1963, concerned the “settlement of certain
property-related, economic and financial questions”
o The second Agreement, which entered into force on 31 July
1963, concerned “compensation for Italian nationals subjected
to National- Socialist measures of persecution”
 On 2 August 2000, a federal law was adopted in Germany, estab-
lishing a “Remembrance, Responsibility and Future” Foundation (here-
inafter the “2000 Federal Law”) to make funds available to individuals
who had been subjected to forced labour and “other injustices from the
National Socialist period”
 Thousands of former Italian military internees, who, as noted above,
had been denied the status of prisoner of war by the German Reich
(see paragraph 21), applied for compensation under the 2000 Federal
Law.
Proceedings before Italian courts
 Cases involving Italian nationals. In 1998, Ferrini, an Italian claimant
(Luigi Ferrini) who had been arrested and deported to Germany in
1944, instituted proceedings against Germany in an Italian court
(Court of Arezzo). The Court of Arezzo ruled against Ferrini but this
was reversed on appeal by the Court of Appeal of Florence,
which held in 2011 that Germany should pay damages to Ferrini.
The Court of Appeal of Florence held that jurisdictional immunity is
not absolute and cannot be invoked by a State in the face of acts
by that State which constitute crimes under international law.
Other claimants also brought action for damages against Germany
before the Italian courts. Said courts rejected Germany’s argument of
lack of jurisdiction and confirmed its reasoning in the Ferrini Judgment
that in cases of crimes under international law, the jurisdictional
immunity of States should be set aside.
o Following the Ferrini judgment of the Italian Court of Cassation
dated 11 March 2004, twelve claimants brought proceedings
against Ger- many in the Court of Turin
 Cases involving Greek nationals. On 10 June 1944, during the
German occupation of Greece, Ger- man armed forces committed a
massacre in the Greek village of Distomo, involving many civilians. In
1995, relatives of the Greek victims commenced action for damages
against Germany for the massacre committed by the latter’s armed
forces in 1944. The Hellenic Supreme Court ruled in favor of the
claimants. However, the judgment remained unexecuted since the
authorization from the Minister of Justice to enforce judgment against
Germany was not granted. The case was brought to the European
Court of Human Rights which declared in 2002, that the claimants’
application was inadmissible, referring to the rule of State immunity. In
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1997, the Greek claimants brought proceedings before the German
courts to enforce judgment in Germany. In 2003, the German Federal
Supreme Court held that those Greek judicial decisions could not be
recognized within the German legal order because they had been
given in breach of Germany’s entitlement to State immunity. The
Greek claimants sought to enforce the judgments of the Greek courts
in the Italian courts. In 2005, the Court of Appeal of Florence held
that the order contained in the judgment of the Hellenic SC was
enforceable in Italy.
 In 2007, the Greek claimants, pursuant to the decision by the Court of
Appeal of Florence, registered with Italian Land Registry a legal
charge over Villa Vigoni, a property of Germany. Germany sought
the cancellation of the legal charge, which was suspended pending the
decision of the ICJ in the present case.
 Germany then filed an Application with the ICJ, claiming that:
1. Italy has failed to respect the jurisdictional immunity which
Germany enjoys under international law by allowing civil
claims to be brought against it in the Italian courts;
2. Italy has also violated Germany’s immunity by taking
measures of constraint against Villa Vigoni, German State
property in Italian territory; and
3. Italy has further breached Germany’s jurisdictional immunity
by declaring enforceable in Italy decisions of Greek civil courts
rendered against Germany. Italy asserted that Germany’s
claims are unfounded.
 Italy requests the Court to adjudge Germany’s claims to be
unfounded and therefore to reject them
o In its Counter-Memorial, Italy submitted a counter-claim “with
respect to the question of the reparation owed to Italian
victims of grave viola- tions of international humanitarian law
committed by forces of the Ger- man Reich” ; this claim was
dismissed by the Court’s Order of 6 July 2010, on the grounds
that it did not fall within the jurisdiction of the Court
ISSUES + RULING:
WON the ICJ has jurisdiction to entertain the case. YES
 Germany’s Application was filed on the basis of the jurisdiction
conferred on the Court by Article 1 of the European Convention
for the Peaceful Settlement of Disputes. The claims submitted to
the Court by Germany certainly relate to “international legal
disputes” within the meaning of Art 1 of the Convention. The subject-
matter of the disputes is reparation for the injury caused by actions of
 the German armed forces in 1943-1945. Germany’s complaint before
the Court, however, is not about the treatment of that subject-matter in
the judgments of the Italian courts; its complaint is solely that its
immunities from jurisdiction and enforcement have been
violated.
WON the Italian courts were obliged to accord Germany immunity. YES.
 The action of the Italian courts in denying Germany the immunity to
which the Court has held it was entitled under customary international
law constitutes a breach of the obligations owed by the Italian
State to Germany.
 There can be no doubt that the conducts by German armed forces
were a serious violation of the international law of armed conflict
applicable in 1943-1945. However, the Court is not called upon to
decide whether these acts were illegal, a point which is not
contested.
 Both Parties agree that immunity is governed by international law
and is not a mere matter of comity.
 As between Germany and Italy, any entitlement to immunity can be
derived only from customary international law, rather than treaty.
 Although Germany is one of the 8 States parties to the European
Convention on State Immunity of 16 May 1972, Italy is not a party and
the Convention is accordingly not binding upon it.
o Neither State is party to the UN Convention on the
Jurisdictional Immunities of States and their Property, on
2 Dec 2004, which is not yet in force in any event.
 It follows that the Court must determine, in accordance with
Article 38 (1) (b) of its Statute, the existence of “international
custom, as evidence of a general practice accepted as law”
conferring immunity on States and, if so, what is the scope and extent
of that immunity.
o State practice:
 judgments of national courts faced with the question
whether a foreign State is immune
 legislation of those States which have enacted
statutes dealing with immunity
 claims to immunity advanced by States before foreign
courts
 statements made by States, first in the course of the
extensive study of the subject by the International Law
Commission (ILC) and then in the context of the
adoption of the UN Convention
 ILC concluded in 1980 that the rule of State immunity had been
“adopted as a general rule of customary international law solidly
rooted in the current practice of States”.
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 The rule of State immunity derives from the principle of sovereign
equality of States, which, as Article 2, paragraph 1, of the UN Charter
makes clear, is one of the fundamental principles of the international
legal order.
o Opinio juris:
 assertion by States claiming immunity that
international law accords them a right to such
immunity from the jurisdiction of other States
 in the acknowledgment, by States granting immunity,
that international law imposes upon them an
obligation to do so
 conversely, in the assertion by States in other cases
of a right to exercise jurisdiction over foreign States
 Both Parties are in broad agreement regarding the validity and
importance of State immunity as a part of customary international
law. They differ, however, as to whether (as Germany contends) the
law to be applied is that which determined the scope and extent of
State immunity in 1943-1945.
 In accordance with the principle stated in Article 13 of the
International Law Commission Articles on Responsibility of States for
Internationally Wrongful Acts the compatibility of an act with
international law can be determined only by reference to the law in
force at the time when the act occurred. Relevant acts of
Germany and those of Italy:
 The relevant German acts occurred in 1943-1945, and it is, therefore,
the international law of that time which is applicable to them.
 The relevant Italian acts ⎯ the denial of immunity and exercise of
jurisdiction by the Italian courts ⎯ did NOT occur until the proceedings
in the Italian courts took place. Since the claim before the Court
concerns the actions of the Italian courts, it is the international
law in force at the time of those proceedings which the
Court has to apply.
 THUS, for these reasons, the Court must examine and apply the law
on State immunity as it existed at the time of the Italian proceedings,
rather than that which existed in 1943-1945.
 Parties also differ as to the scope and extent of the rule of State
immunity.
o Many States (including both Germany and Italy) now
distinguish between acta jure gestionis, in respect of which
they have limited the immunity which they claim for
themselves and which they accord to others, and acta jure
imperii. That approach has also been followed in the UN
Convention and the European Convention. The acts of the
German armed forces and other State organs which were
the subject of the proceedings in the Italian courts clearly
 constituted acta jure imperii. (government act, not private
act)
o ICJ considers that the terms “jure imperii” and “jure
gestionis” do not imply that the acts in question are lawful but
refer rather to whether the acts in question fall to be assessed
by reference to the law governing the exercise of sovereign
power (jus imperii) or the law concerning non-sovereign
activities of a State, especially private and commercial
activities (jus gestionis).
 Both Parties agree that States are generally entitled to immunity
in respect of acta jure imperii. That is the approach taken in the
United Nations, European and draft Inter-American Conventions,
the national legislation in those States which have adopted statutes on
the subject and the jurisprudence of national courts.
o Germany: Immunity is applicable and that there is no
relevant limitation on the immunity to which a State is entitled
in respect of acta jure imperii.
o Italy: Germany is not entitled to immunity in respect of the
cases before the Italian courts for 2 reasons: (1) immunity as
to acta jure imperii does not extend to torts or delicts
occasioning death, personal injury or damage to property
committed on the territory of the forum State, and (2)
irrespective of where the relevant acts took place,
Germany was not entitled to immunity because those acts
involved the most serious violations of rules of
international law of a peremptory character for which no
alternative means of redress was available.
Arguments (ICJ):
(1) The territorial tort principle. A State is no longer entitled to immunity
in respect of acts occasioning death, personal injury or damage to property
on the territory of the forum State, even if the act in question was performed
jure imperii. (Article 11 of the European Convention, nor Article 12 of the
UN Convention)
 Neither Article 11 of the European Convention, nor Article 12 of
the United Nations Convention reflects customary international law.
They are irrelevant to the present proceedings, because neither
provision was intended to apply to the acts of armed forces.
 Except the Italian cases and the Distomo case in Greece, no national
court has ever held that a State was not entitled to immunity in respect
of acts of its armed forces, in the context of an armed conflict and that,
by contrast, the courts in several States have expressly declined
jurisdiction in such cases on the ground that the respondent State was
entitled to immunity.
Page 57 of 73
 Neither Convention is in force between the Parties to the present
case. The provisions of these Conventions are, therefore, relevant
only in so far as their provisions and the process of their
adoption and implementation shed light on the content of customary
international law.
 The limitation of immunity recognized by some national courts in such
cases was treated as confined to acta jure gestionis. The Court
notes, however, that none of the national legislation which provides
for a “territorial tort exception” to immunity expressly distinguishes
between acta jure gestionis and acta jure imperii.
 ICJ is not called upon in the present proceedings to resolve the
question whether there is in customary international law a “tort
exception” to State immunity applicable to acta jure imperii in
general. The issue before the Court is confined to acts committed on
the territory of the forum State by the armed forces of a foreign State,
and other organs of State working in co-operation with those armed
forces, in the course of conducting an armed conflict.
(2) Gravity of violations. Denial of immunity was justified on account of
the particular nature of the acts forming the subject-matter of the claims before
the Italian courts and the circumstances in which those claims were made.
 The acts which gave rise to the claims constituted serious
violations of the principles of international law (war crimes and
crimes against humanity)
 Rules of international law thus contravened were peremptory
norms (jus cogens).
 Under customary international law as it presently stands, a State
is not deprived of immunity by reason of the fact that it is accused of
serious violations of international human rights law or the
international law of armed conflict.
 Even on the assumption that the proceedings in the Italian courts
involved violations of jus cogens rules, the applicability of the
customary international law on State immunity was not affected.
(3) The “last resort” argument. All other attempts to secure compensation
for the various groups of victims involved in the Italian proceedings had
failed
 In the aftermath of the WWII, Germany made considerable financial
and other sacrifices by way of reparation in the context of a complex
series of inter-State arrangements under which, reflecting the
economic realities of the time, no Allied State received
compensation for the full extent of the losses which its people had
suffered.
  It also points to the payments which it made to Italy under the terms of
the two 1961 Agreements and to the payments made more recently
under the 2000 Federal Law to various Italians who had been
unlawfully deported to forced labor in Germany.
 The Court cannot accept Italy’s contention that the alleged
shortcomings in Germany’s provisions for reparation to Italian victims,
entitled the Italian courts to deprive Germany of jurisdictional
immunity. The Court can find no basis in the State practice from which
customary international law is derived that international law makes the
entitlement of a State to immunity dependent upon the existence of
effective alternative means of securing redress.
WON the registration of a legal charge on Villa Vigoni constitutes a violation by
Italy of its obligation to respect the immunity owed to Germany. YES
 The rules of customary international law governing immunity from
enforcement and those governing jurisdictional immunity (understood
stricto sensu as the right of a State not to be the subject of judicial
proceedings in the courts of another State) are distinct, and
must be applied separately.
 Germany cited the rules set out in Article 19 of the UN
Convention. That Convention has not entered into force, but in
Germany’s view it codified, in relation to the issue of immunity
from enforcement, the existing rules under general international law.
Its terms are therefore said to be binding, inasmuch as they reflect
customary law on the matter.
 Article 19, entitled “State immunity from post-judgment measures of
constraint”, reads :
“No post-judgment measures of constraint, such as attachment, arrest
or execution, against property of a State may be taken in connection with a
proceeding before a court of another State unless and except to the extent
that:
(a) the State has expressly consented to the taking of such measures as
indicated:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or
(iii) by a declaration before the court or by a written communication
after a dispute between the parties has arisen; or
(b) the State has allocated or earmarked property for the satisfaction of
the claim
which is the object of that proceeding; or
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(c) it has been established that the property is specifically in use or intended
for use by
the State for other than government non-commercial purposes and is in
the
territory of the State of the forum, provided that post-judgment measures
of
constraint may only be taken against property that has a connection with the
entity
against which the proceeding was directed.”
 It suffices for the Court to find that there is at least one condition that
has to be satisfied before any measure of constraint may be taken
against property belonging to a foreign State: that the property in
question must be in use for an activity not pursuing
government non-commercial purposes, or that the State which
owns the property has expressly consented to the taking of a
measure of constraint, or that that State has allocated the
property in question for the satisfaction of a judicial claim
 It is clear in the present case that the property which was the subject
of the measure of constraint at issue is being used for governmental
purposes that are entirely non-commercial, and hence for purposes
falling within Germany’s sovereign functions. Nor has Germany in
any way expressly consented to the taking of a measure such as
the legal charge in question, or allocated Villa Vigoni for the
satisfaction of the judicial claims against it.
WON the Florence Court of Appeal had violated Germany’s jurisdictional
immunity in declaring enforceable the Hellenic SC decisions dependent on
whether those decisions had themselves violated the jurisdictional immunity on
which Germany had relied in its defense against the proceedings brought
against it in Greece. YES
 The fact nonetheless remains that the court exercises a jurisdictional
power which results in the foreign judgment being given effects
corresponding to those of a judgment rendered on the merits in the
requested State. The proceedings brought before that court must
therefore be regarded as being conducted against the third State
which was the subject of the foreign judgment.
Dissenting Opinion (Cancado Trindade)
DOCTRINE: There is no immunity for grave violations of human rights and of
international humanitarian law, for war crimes and crimes against humanity.
State immunity is not a right but rather a prerogative or privilege; it cannot be
upheld in a way that leads to manifest injustice.
 It is nowadays generally acknowledged that criminal State policies and
the ensuing perpetration of State atrocities cannot at all be covered up
by the shield of State immunity.
 The UN ILC admitted that there were some international wrongs that
were “more serious than others”, that amounted to “international
crimes”, as they were in breach of fundamental principles (such as
those of the U.N. Charter) “deeply rooted in the conscience of
mankind”, as well as of the foundations of “the legal order of
international society”.
 In case of those grave breaches, the individual victims can thus
invoke the responsibility of the State concerned on their own
initiative, and without the intermediation of any State; they can do so
as subjects of the law of nations, and in conformity with the rule of law
⎯ as nowadays reckoned by the United Nations ⎯ at national and
international levels.
 A State can waive only claims on its own behalf, but not claims on
behalf of human beings pertaining to their own rights, as victims of
grave violations of international law. The rights of victims of grave
violations of human rights and of international humanitarian law
subsist, their vindication cannot be waived by their States, or by
States inter se, on their behalf.
 War reparations claims, being recognized well before the end of WWII,
could not be waived by States in their agreements with other States; it
was related to other rights inherent to the human beings victimized by
the cruelty and untold human suffering of arbitrary detention,
deportation and forced labour in war industry.
 When a State pursues a criminal policy of murdering segments of its
own population, and of the population of other States, it cannot, later
on, place itself behind the shield of sovereign immunities, as
these latter were never conceived for that purpose. Grave
breaches of human rights and of international humanitarian law,
amounting to international crimes, are not at all acts jure imperii.
They are anti-juridical acts, they are breaches of jus cogens, that
cannot simply be removed or thrown into oblivion by reliance
on State immunity. This would block the access to justice,
and impose impunity. It is, in fact, the opposite should take place:
breaches of jus cogens bring about the removal of claims of State
immunity, so that justice can be done.
 War crimes and crimes against humanity are not to be considered acta
jure gestionis, or else “private acts”; they are crimes. They are not to
be considered acta jure imperii either; they are grave delicta, crimes.
The distinction between acts jure imperii and acts jure gestionis,
between sovereign or official acts of a State and acts of a private
Page 59 of 73
nature, is a remnant of traditional doctrines which are wholly
inadequate to the examination of the present case on the
Jurisdictional Immunities of the State before the Court.
 State can, nor was ever allowed, to invoke sovereignty to
enslave and/or to exterminate human beings, and then to avoid the
legal consequences by standing behind the shield of State immunity.
There is no immunity for grave violations of human rights and of
international humanitarian law, for war crimes and crimes against
humanity.
 There is no room for the privilege of State immunity here; where
there is no right of access to justice, there is no legal system
at all. Observance of the right of access to justice is imperative, it is
not “limited” by State immunity; we are here in the domain of jus
cogens.
 It is immaterial whether the harmful act in grave breach of
human rights was a governmental one (jure imperii), or a private
one with the acquiescence of the State (jure gestionis), or whether
it was committed entirely in the forum State or not (deportation to
forced labour is a trans-frontier crime).
Vinuya v. Executive Secretary (2010)
FACTS:
 Vinuya et al are all members of the MALAYA LOLAS, an organization
established for the purpose of providing aid to the victims of rape by
Japanese military forces in the Philippines during WWII.
o Vinuya et al narrate that during WWII, Japanese soldiers forcibly
seized the women and held them in houses or cells, where they
were repeatedly raped, beaten, and abused. As a result, the
women have spent their lives in misery, having endured physical
injuries, pain and disability, and mental and emotional suffering.
 Vinuya et al had, since 1998, approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a
claim against the Japanese officials and military officers who ordered
the establishment of the "comfort women" stations in the Philippines.
However, these officials declined to assist them, and took the position
that the individual claims of the comfort women for compensation had
already been fully satisfied by Japan's compliance with the Peace
Treaty between the Philippines and Japan.
 Hence, they filed an original petition for certiorari (Rule 65) with an
application for a writ of preliminary mandatory injunction against the
Office of the Executive Secretary, the Secretary of the DFA, the
Secretary of the DOJ, and the OSG.
 Vinuya et al’s arguments:
 o The general waiver of claims made by the Philippine government
in the Treaty of Peace with Japan is void.
o The comfort women system established by Japan, and the brutal
rape and enslavement of petitioners constituted a crime against
humanity, sexual slavery, and torture.
o The prohibition against these international crimes is jus
cogens norms from which no derogation is possible; as such,
in waiving the claims of Filipina comfort women and failing to
espouse their complaints against Japan, the Philippine
government is in breach of its legal obligation not to afford
impunity for crimes against humanity.
o The Philippine government's acceptance of the "apologies" made
by Japan as well as funds from the Asian Women's Fund (AWF) is
contrary to international law.
 Government’s arguments:
o All claims of the Philippines and its nationals relative to the war
were dealt with in the San Francisco Peace Treaty of 1951 and the
bilateral Reparations Agreement of 1956.
 Article 14. Claims and Property – [x x x] Except as otherwise
provided in the present Treaty, the Allied Powers waive all
reparations claims of the Allied Powers, other claims of the
Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of
the prosecution of the war
o The apologies made by Japan have been satisfactory, and that
Japan had addressed the individual claims of the women through
the atonement money paid by the Asian Women's Fund.
 August 4, 1993, Japanese Prime Minister Miyazawa, before
resigning, formally apologized to women all over the world
who were forced to serve as comfort women.
 History:
o The comfort women system was the tragic legacy of the Rape of
Nanking. After the incident, the Japanese government established
the “comfort women” system, where the military could
simultaneously appease soldiers' sexual appetites and contain
soldiers' activities within a regulated environment. It would also
prevent the spread of venereal disease among soldiers and
discourage soldiers from raping inhabitants of occupied territories.
o The military forced comfort women into barracks-style stations
divided into tiny cubicles where they were forced to live, sleep, and
have sex with as many 30 soldiers per day. Fewer than 30% of the
women survived the war.
 Efforts to secure reparation: There were a series of lawsuits,
discussions at the United Nations (UN), resolutions by various nations,
and the Women's International Criminal Tribunal.
Page 60 of 73
o First, there was litigation in Japanese courts. They failed.
o Then, the victims of the comfort women system brought their
claims in a class action suit before a US District Court pursuant to
the Alien Tort Claims Act, which allowed the suit. However, the
district court dismissed the lawsuit due to lack of jurisdiction over
Japan, stating that it was not the appropriate forum in which the
victims may seek to reopen discussions nearly half a century later.
Even if Japan did not enjoy sovereign immunity, plaintiffs'
claims are non-justiciable and must be dismissed.
o At the UN, Korean victims submitted a petition to the UN Human
Rights Commission (UNHRC), asking for assistance in
investigating crimes committed by Japan against Korean women
and seeking reparations for former comfort women. The UNHRC
investigator made the following recommendations, pertinent
parts of which are that the Japanese government should:
 acknowledge that the system of comfort stations was a
violation of its obligations under international law and accept
legal responsibility for that violation;
 Pay compensation to individual victims of Japanese military
sexual slavery according to principles on the right to
restitution, compensation and rehabilitation for victims of grave
violations of human rights and fundamental freedoms;
 Make a public apology in writing to individual women who
have come forward and can be substantiated as women
victims of Japanese military sexual slavery.
o However, the UN, since then, has not taken any official action
directing Japan to provide the reparations sought.
o At the Women's International War Crimes Tribunal (WIWCT): This
was a "people's tribunal" established by a number of Asian women
and human rights organizations, supported by an international
coalition of NGOs. After examining the evidence for more than a
year, the "tribunal" issued its verdict on December 4, 2001, finding
the former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of
women.
 Our Supreme Court says that although the tribunal included
prosecutors, witnesses, and judges, its judgment was not
legally binding since the tribunal itself was organized by
private citizens.
o There were also resolutions of individual governments, such as
the US government, European Parliament, Canadian and Dutch
parliaments, with demands ranging from acknowledgment to
apologies.
 The Japanese government responded through a series of public
apologies and the creation of the AWF.

ISSUES + RULING:
Did the Executive Department commit grave abuse of discretion in not
espousing Vinuya et al’s claims for official apology and other forms of
reparations against Japan? NO.
From a Domestic Law Perspective, the Executive Department has the
exclusive prerogative to determine whether to espouse petitioners'
claims against Japan.
 Tañada v. Cuenco: Political questions refer "to those questions
which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of
the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure.”
 Questions of foreign relations belong to the category of political
questions. It has been held that the conduct of the foreign relations of
our government is committed by the Constitution to the executive and
legislative--'the political'--departments of the government, and the
propriety of what may be done in the exercise of this political power is
not subject to judicial inquiry or decision.
 Not all cases implicating foreign relations present political questions,
and courts certainly possess the authority to construe or invalidate
treaties and executive agreements.
 However, the question whether the Philippine government should
espouse claims of its nationals against a foreign government is a
foreign relations matter, the authority for which is demonstrably
committed by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has already
decided that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the Treaty
of Peace of 1951. The wisdom of such decision is not for the
courts to question.
 Justic Puno’s dissent in Secretary of Justice v. Lantion: The conduct of
foreign affairs can only be entrusted to that department of government
which can act on the basis of the best available information and can
decide with decisiveness. It is also the President who possesses the
most comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials regularly brief
him on meaningful events all over the world. He has also unlimited
access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of
foreign affairs.
Page 61 of 73
 The Executive Department has determined that taking up petitioners'
cause would be inimical to our country's foreign policy interests, and
could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For the SC to overturn the
Executive Department's determination would mean an assessment of
the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed.
 The Philippine government had authority to negotiate the Treaty of
Peace with Japan. Since time immemorial, when negotiating peace
accords and settling international claims, governments have dealt with
private claims as their own, treating them as national assets, and as
counters, `chips', in international bargaining. Settlement agreements
have lumped, or linked, claims deriving from private debts with others
that were intergovernmental in origin.
 Except as an agreement might otherwise provide, international
settlements generally wipe out the underlying private claims,
thereby terminating any recourse under domestic law.
 The Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by
Japanese aggression during the war, not for the payment of adequate
reparations, but for security purposes. The treaty sought to prevent the
spread of communism in Japan, which occupied a strategic position in
the Far East. Thus, the Peace Treaty compromised individual claims in
the collective interest of the free world.
 The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the reparations
issue once and for all.
 Leaving open the possibility of future claims would be an
unacceptable impediment to a lasting peace.
 The SC held that as a general principle - and particularly in this case,
where such an extraordinary length of time has lapsed between the
treaty's conclusion and this case at bar - the Executive must be given
ample discretion to assess the foreign policy considerations of
espousing a claim against Japan, from the standpoint of both the
interests of the petitioners and those of the Republic, and decide on
that basis if apologies are sufficient, and whether further steps are
appropriate or necessary.
The Philippines is not under any international obligation to espouse
petitioners' claims.
 In the international sphere, traditionally, the only means available for
individuals to bring a claim within the international legal system has
been when the individual is able to persuade a government to bring a
claim on the individual's behalf.
  In that situation, it is not the individual's rights that are being
asserted, but rather, the state's own rights.
 Mavrommatis case: In international judicial proceedings, a State is
in reality asserting its own right to ensure, in the person of its
subjects, respect for the rules of international law. Since the
exercise of diplomatic protection is the right of the State, reliance
on the right is within the absolute discretion of states, and the
decision whether to exercise the discretion may invariably be
influenced by political considerations other than the legal merits of
the particular claim.
 Barcelona Traction: Within the limits prescribed by international
law, a State may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the natural or legal
person on whose behalf it is acting consider that their rights
are not adequately protected, they have no remedy in
international law. All they can do is resort to national law, if
means are available, with a view to furthering their cause or
obtaining redress.
 Petitioners argue that the State has a duty to protect its nationals and
act on his/her behalf when rights are injured, but there is no
sufficient evidence to establish a general international obligation
for States to exercise diplomatic protection of their own nationals
abroad. Neither state practice nor opinio juris has evolved in
such a direction.
 Rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary
international law. However, petitioners take quite a theoretical leap in
claiming that these proscriptions automatically imply that that the
Philippines is under a non-derogable obligation to prosecute
international crimes, particularly since petitioners do not demand the
imputation of individual criminal liability, but seek to recover monetary
reparations from the state of Japan. Absent the consent of states,
an applicable treaty regime, or a directive by the Security
Council, there is no non-derogable duty to institute proceedings
against Japan. Indeed, precisely because of states' reluctance to
directly prosecute claims against another state, recent
developments support the modern trend to empower individuals
to directly participate in suits against perpetrators of
international crimes.
 Even the invocation of jus cogens norms and erga omnes obligations
will not alter this analysis. Petitioners have not deigned to show that
the crimes committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that the
Page 62 of 73
duty to prosecute perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus cogens.
 The term erga omnes (Latin: in relation to everyone) in
international law has been used as a legal term describing
obligations owed by States towards the community of states as a
whole.
 As there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character
of jus cogens," the prudent course seems to be to leave the full
content of this rule to be worked out in State practice and in the
jurisprudence of international tribunals. (text are excerpts from
International Law Commission’s preparation of the Vienna
Convention on the Law of Treaties)
 Thus, while the existence of jus cogens in international law is
undisputed, no consensus exists on its substance, beyond a tiny
core of principles and rules.
 (Footnote on this part regarding sovereignty) In some
cases, national courts have accepted international norms as
peremptory, but have hesitated to enforce these norms for
fear that they might thereby compromise state sovereignty.
DISPOSITION: Petition dismissed.
Belgium v. Senegal (2012)
FACTS
A. Background of Mr. Hissène Habré
 After taking power on 7 June 1982 at the head of a rebellion, Mr.
Hissène Habré became President of the Republic of Chad for eight
years, during which time large-scale violations of human rights were
allegedly committed, including arrests of actual or presumed political
opponents, detentions without trial or under inhumane conditions,
mistreatment, torture, extrajudicial executions and enforced
disappearances.
 Mr. Habré was overthrown on 1 December 1990 by his former
defence and security adviser, Mr. Idriss Déby, current President of
Chad.
 After a brief stay in Cameroon, he requested political asylum from the
Senegalese Government, a request which was granted. He then
settled in Dakar, where he has been living ever since.
B. The Charges
 On 25 January 2000, seven Chadian nationals residing in Chad filed
with the Dakar Tribunal a complaint against Mr. Habré on account of
crimes alleged to have been committed during his presidency.
 o Mr. Habré was indicted for having “aided or abetted in the
commission of crimes against humanity and acts of torture
and barbarity” and placed him under house arrest.
o Mr. Habré filed an application with the Chambre d’accusation
of the Dakar Court of Appeal for annulment of the proceedings
against him, arguing that the courts of Senegal had no
jurisdiction.
o The Chamber of the Court of Appeal granted the application
on the grounds that they concerned crimes committed outside
the territory of Senegal by a foreign national against foreign
nationals and that they would involve the exercise of universal
jurisdiction, while the Senegalese Code of Criminal Procedure
then in force did not provide for such jurisdiction.
 On 30 November 2000, a Belgian national of Chadian origin filed a
complaint, followed by a series of similar complaints, against Mr.
Habré with a Belgian investigating judge for serious violations of
international humanitarian law, crimes of torture and the crime of
genocide. These relating to the period 1982 to 1990 were based on
crimes covered by the Belgian Law of 16 June 1993 concerning the
punishment of serious violations of international humanitarian law, and
by the Convention against Torture.
 On 19 September 2005, the Belgian investigating judge issued an
international warrant in absentia for the arrest of Mr. Habré, indicted as
the perpetrator or co-perpetrator of serious violations of international
humanitarian law, torture, genocide, crimes against humanity and war
crimes. Belgium transmitted the international arrest warrant to Senegal
and requested the extradition of Mr. Habré.
 Dakar Court of Appeals: denied Belgium’s extradition request. As “a
court of ordinary law, it could not extend its jurisdiction to matters
relating to the investigation or prosecution of a Head of State for acts
allegedly committed in the exercise of his functions”; that Mr. Habré
should “be given jurisdictional immunity”, which “is intended to survive
the cessation of his duties as President of the Republic”; and that it
could not therefore “adjudicate the lawfulness of [the] proceedings and
the validity of the arrest warrant against a Head of State”.
 Senegal referred the issue of the institution of proceedings against this
former Head of State to the African Union.
 Ruling of the African Union’s Assembly of Heads of State and
Government: the Hissène Habré case fell within the competence of the
African Union;
(a) mandated Senegal to prosecute and ensure that Hissène Habré is
tried, on behalf of Africa, by a competent Senegalese court with
guarantees for fair trial” and
(b) mandated the Chairperson of the African Union to provide Senegal
with the necessary assistance for the effective conduct of the trial.
Page 63 of 73
C. Diplomatic Exchange between Belgium and Senegal
 In view of this judgment, an exchange of Notes Verbale took place
between by Belgium to Senegal which can be summarized as follows:
 Belgium to Senegal:
o requested to be informed of the implications of this judicial
decision for Belgium’s request for extradition, the current
stage of the proceedings, and whether Senegal could reply
officially to the request for extradition and provide explanations
about its position pursuant to the said decision
o to be informed of whether its decision to refer the Hissène
Habré case to the African Union was to be interpreted as
meaning that the Senegalese authorities no longer intended to
extradite him to Belgium or to have him judged by their own
Courts”.
o informed Senegal of its interpretation of Article 7 of the
Convention against Torture as requiring the State on whose
territory the alleged offender is located to extradite him if
it does not prosecute him,
o That the “decision to refer the Hissène Habré case to the
African Union” could not relieve Senegal of its obligation to
either judge or extradite the person accused of these offences
in accordance with the relevant articles of the Convention.
o That an unresolved dispute regarding this interpretation would
lead to recourse to the arbitration procedure provided for in
Article 30 of the Convention.
 Senegal to Belgium
o It had referred the Habré case to the African Union, and that
this “prefigured a concerted approach on an African scale to
issues that fall in principle under the States’ national
sovereignty”.
o The judgment of the Chambre d’accusation put an end to the
judicial stage of the proceedings
o That by referring the case to the African Union, Senegal, in
order not to create a legal impasse, was acting in accordance
with the spirit of the “aut dedere aut punire” principle.
o took note of “the possibility of recourse to the arbitration
procedure provided for in Article 30 of the Convention”.
 Belgium: the attempted negotiation with Senegal, which started in
November 2005, had not succeeded” and asked Senegal to submit the
dispute to arbitration “under conditions to be agreed mutually”, in
accordance with Article 30 of the Convention.
 The United Nations Committee against Torture found that Senegal had
not adopted such “measures as may be necessary” to establish its
jurisdiction over the crimes listed in the Convention, in violation of
Article 5, paragraph 2, of the latter.
D. Reforms in Senegalese Law
 In the meantime, in 2007, Senegal implemented a number of
legislative reforms in order to bring its domestic law into conformity
with Article 5, paragraph 2, of the Convention against Torture (i.e. to
take steps to acquire jurisdiction over acts of torture of a person within
its territory)
(1) The new Articles 431-1 to 431-5 of its Penal Code defined and
formally proscribed the crime of genocide, crimes against
humanity, war crimes and other violations of international
humanitarian law. Thus any individual could “be tried or sentenced
for acts or omissions which at the time and place where they were
committed, were regarded as a criminal offence according to the
general principles of law recognized by the community of nations,
whether or not they constituted a legal transgression in force at
that time and in that place”.
(2) Article 669 of the Senegalese Code of Criminal Procedure was
amended to read as follows: “Any foreigner who, outside the
territory of the Republic, has been accused of being the
perpetrator of or accomplice to one of the crimes referred to in
Articles 431-1 to 431-5 of the Penal Code . . . may be prosecuted
and tried according to the provisions of Senegalese laws or laws
applicable in Senegal, if he is under the jurisdiction of Senegal or if
a victim is resident in the territory of the Republic of Senegal, or if
the Government obtains his extradition.”
(3) A new Article 664b was also incorporated into the Code of
Criminal Procedure, thus “[t]he national courts shall have
jurisdiction over all criminal offences, punishable under
Senegalese law, that are committed outside the territory of the
Republic by a national or a foreigner, if the victim is of Senegalese
nationality at the time the acts are committed”.
(4) Senegal amended Article 9 of its Constitution in order to provide
for an exception to the principle of non-retroactivity of its criminal
laws, thus: “the principle of non-retroactivity, although recognized
by Senegalese law does not block the judgment or sentencing of
any individual for acts or omissions which, at the time they were
committed, were considered criminal under the general principles
of law recognized by all States.” although the second
subparagraph of that Article provides that “[n]o one may be
convicted other than by virtue of a law which became effective
before the act was committed”, the third subparagraph stipulates
that “[h]owever, the provisions of the preceding subparagraph
shall not prejudice the prosecution, trial and punishment of any
person for any act or omission which, at the time when it was
committed, was defined as criminal under the rules of international
Page 64 of 73
law concerning acts of genocide, crimes against humanity and war
crimes”.
 Following the above-mentioned legislative and constitutional reforms,
14 victims (one of Senegalese nationality and 13 of Chadian
nationality) filed a complaint with the Public Prosecutor of the Dakar
Court of Appeal in September 2008, accusing Mr. Habré of acts of
torture and crimes against humanity during the years of his
presidency.
E. Application to Tribunal
 On 19 February 2009, Belgium filed the present proceedings before
the Court (ICJ)
 Belgium transmitted to the Senegalese authorities a second, third and
fourth request for the extradition of Mr. Habré.
o 2nd and 3rd request: the Chambre d’accusation of the Dakar
Court of Appeal declared this inadmissible.
o Fourth Request: The Senegalese Ministry of Justice informed
the Ministry of Foreign Affairs of Senegal that the extradition
request had been transmitted in due course “as is, to the
Public Prosecutor at the Dakar Court of Appeal, with the
instruction to bring it before the Chambre d’accusation once
the necessary legal formalities had been completed”.
 The Assembly of the Heads of State and Government of the African
Union observed that the Dakar Court of Appeal had not yet taken a
decision on Belgium’s fourth request for extradition.
 Both Belgium and Senegal are parties to the Convention against
Torture. The Convention was ratified by Senegal on 21 August 1986,
without reservation, and became binding on it on 26 June 1987.
Belgium ratified the Convention on 25 June 1999, without reservation,
and became bound by it on 25 July 1999.
F. Submissions
I. Belgium – asks that the Court declares:
(1) Senegal to be in breach
a. Senegal breached its international obligations by failing to
incorporate in its domestic law the provisions necessary to
enable the Senegalese judicial authorities to exercise the
universal jurisdiction provided for in Article 5, paragraph 2, of
the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment;
b. Senegal has breached and continues to breach its
international obligations under Article 6, paragraph 2, and
Article 7, paragraph 1, of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment
and under customary international law by failing to bring
criminal proceedings against Mr. Hissène Habré for acts
characterized in particular as crimes of torture, genocide, war
 crimes and crimes against humanity alleged against him as
perpetrator, co-perpetrator or accomplice, or to extradite him
to Belgium for the purposes of such criminal proceedings;
c. Senegal may not invoke financial or other difficulties to justify
the breaches of its international obligations.
(2) Senegal is required to cease these internationally wrongful acts
a. by submitting without delay the Hissène Habré case to its
competent authorities for prosecution; or
b. failing that, by extraditing Mr. Habré to Belgium.
(3) Belgium reserves the right to revise or amend these submissions
as appropriate, in accordance with the provisions of the Statute
and the Rules of Court.”
II. Senegal - that the International Court of Justice adjudge and declare
that:
(1) Principally, it cannot adjudicate on the merits of the Application
filed by the Kingdom of Belgium because it lacks jurisdiction as a
result of the absence of a dispute between Belgium and Senegal,
and the inadmissibility of that Application;
(2) In the alternative, Senegal has not breached any of the
provisions of the 1984 Convention against Torture, in particular
those prescribing the obligation to ‘extradite or try’ (Article 6,
paragraph 2, and Article 7, paragraph 1, of the Convention), or,
more generally, any rule of customary international law;
(3) In taking the various measures that have been described, Senegal
is fulfilling its commitments as a State Party to the 1984
Convention against Torture;
(4) In taking the appropriate measures and steps to prepare for the
trial of Mr. Habré, Senegal is complying with the declaration by
which it made a commitment before the Court.
(5) Senegal reserves the right to revise or amend these submissions,
as appropriate, in accordance with the provisions of the Statute
and the Rules of Court.”
ISSUE + RATIO
I. Jurisdiction
Article 30, paragraph 1, of the Convention against Torture
“Any dispute between two or more States Parties concerning the interpretation
or application of this Convention which cannot be settled through negotiation
shall, at the request of one of them, be submitted to arbitration. If within six
months from the date of the request for arbitration the Parties are unable to
agree on the organization of the arbitration, any one of those Parties may refer
Page 65 of 73
the dispute to the International Court of Justice by request in conformity with
the Statute of the Court.”
 Belgium – relies on Article 30 in recognizing as compulsory ipso facto
and without special agreement, in relation to any other State accepting
the same obligation, the jurisdiction of the International Court of
Justice, in conformity with Article 36, paragraph 2, of the Statute of
the Court, in legal disputes arising after 13 July 1948 concerning
situations or facts subsequent to that date, except those in regard to
which the parties have agreed or may agree to have recourse to
another method of pacific settlement.
 Senegal – is of the position that it may reject the Court's competence
in respect of (1) disputes in regard to which the parties have agreed to
have recourse to some other method of settlement; and (2) disputes
with regard to questions which, under international law, fall exclusively
within the jurisdiction of Senegal.” Thus, Senegal contests the
existence of the Court’s jurisdiction on either basis, maintaining that
the conditions set forth in the relevant instruments have not been met
and, in the first place, that there is no dispute between the Parties.
 Court – Three Conditions for establishing jurisdiction
(a) That a dispute exists
(b) That the dispute cannot be settled through negotiations
(c) That, after a request for arbitration has been made by one of
the parties, they have been unable to agree on the
organization of the arbitration within six months from the
request.
 Thus, it must first be established that a dispute existed between the
parties.
o Test to determine the existence of a dispute - It must be
shown that the claim of one party is positively opposed by the
other. Whether there exists an international dispute is a matter
for objective determination and the Court’s determination must
turn on an examination of the facts. The matter is one of
substance, not of form.” The dispute must in principle exist at
the time the Application is submitted to the Court.
A. WON a dispute exists between the parties.
It is only with regard to the dispute concerning the interpretation and
application of Article 6, paragraph 2, and Article 7, paragraph 1, of the
Convention against Torture that the Court will have to find whether there
exists a legal basis of jurisdiction.
(1) On the interpretation or application of Article 5 (2) of the Convention
against Torture. [No dispute existed]
  Article 5(2) of the Convention requires a State party to the
Convention to “take such measures as may be necessary to establish
its jurisdiction” over acts of torture when the alleged offender is
“present in any territory under its jurisdiction” and that State does not
extradite him to one of the States
 Belgium – Senegal did not enact “in a timely manner” provisions of
national legislation allowing its judicial authorities to exercise
jurisdiction over acts of torture allegedly committed abroad by a
foreign national who is present on its territory.
 Senegal – does not contest that it complied only in 2007 with its
obligation under Article 5, paragraph 2, but maintains that it has done
so adequately (see letter D in the facts) even before the application of
Belgium to the Tribunal in 2009.
 Court - The Court finds that any dispute that may have existed
between the Parties with regard to the interpretation or application of
Article 5, paragraph 2, of the Convention had ended by the time the
Application was filed (2009). Thus, the Court lacks jurisdiction to
decide on Belgium’s claim relating to the obligation under Article 5,
paragraph 2. However, this does not prevent the Court from
considering the consequences that Senegal’s conduct in relation to the
measures required by this provision may have had on its compliance
with certain other obligations under the Convention, should the Court
have jurisdiction in that regard.
(2) On Senegal’s breach of the Article 6(2) and Article 7(1) of the Convention
against Torture [Dispute exists]
 Article 6(2) and Article 7(1) respectively require a State party to the
Convention, when a person who has allegedly committed an act of
torture is found on its territory, to hold “a preliminary inquiry into the
facts” and, “if it does not extradite him”, to “submit the case to its
competent authorities for the purpose of prosecution”
 Belgium - Before submitting its Application to the Court, Belgium on
several occasions requested Senegal to comply with its obligation
under the Convention “to extradite or judge” Mr. Habré for the alleged
acts of torture, stating that the Convention had to be understood “as
requiring the State on whose territory the alleged author of an offence
under Article 4 of the aforesaid Convention is located to extradite this
offender, unless it has judged him on the basis of the charges covered
by said article
 Senegal - contends that it was complying with its obligations under the
Convention and that Article 6, paragraph 2, and Article 7, paragraph 1,
grant a State party some latitude with regard to the time within which it
may take the actions required.
 Court - Given that Belgium’s claims based on the interpretation and
application of Articles 6, paragraph 2, and 7, paragraph 1, of the
Page 66 of 73
Convention were positively opposed by Senegal, the Court
considers that a dispute in this regard existed by the time of the filing
of the Application. The Court notes that this dispute still exists.
(3) On the submission that Senegal breached an obligation in customary law to
“bring criminal proceedings against Mr. H. Habré” for crimes against humanity,
war crimes, and genocide, allegedly committed by him. [No dispute exists]
 Court - While it is the case that the Belgian international arrest warrant
transmitted to Senegal with a request for extradition on 22 September
2005 referred to violations of international humanitarian law, torture,
genocide, crimes against humanity, war crimes, murder and other
crimes, neither document stated or implied that Senegal had an
obligation under international law to exercise its jurisdiction over
those crimes if it did not extradite Mr. Habré.
 In terms of the Court’s jurisdiction, what matters is whether, on the
date when the Application was filed, a dispute existed between the
Parties regarding the obligation for Senegal, under customary
international law, to take measures in respect of the above-
mentioned crimes attributed to Mr. Habré. In the light of the
diplomatic exchanges between the Parties, the Court considers that
such a dispute did not exist on that date. The only obligations referred
to in the diplomatic correspondence between the Parties are those
under the Convention against Torture.
 At the time of the filing of the Application, the dispute between the
Parties did not relate to breaches of obligations under customary
international law and that it thus has no jurisdiction to decide on
Belgium’s claims related thereto.
B. Other conditions for Jurisdiction.
Other conditions were met under Article 30.
(1) First Condition: The dispute cannot be settled through negotiation. [Such
condition was met]
 Requisites of the first condition
o The Court must ascertain whether there was, at the very least,
a genuine attempt by one of the disputing parties to engage in
discussions with the other disputing party, with a view to
resolving the dispute.
o The precondition of negotiation is met only when there has
been a failure of negotiations, or when negotiations have
become futile or deadlocked.
o The requirement that the dispute “cannot be settled through
negotiation” implies that “no reasonable probability exists that
further negotiations would lead to a settlement.
  Court – despite Senegal’s steps to comply with its obligations under
the Convention, negotiations did not make any progress towards
resolving the dispute.
o This was observed by Belgium in a Note Verbale of 20 June
2006. There was no change in the respective positions of the
Parties concerning the prosecution of Mr. Habré’s alleged acts
of torture during the period covered by the above exchanges.
o The fact that, as results from the pleadings of the Parties, their
basic positions have not subsequently evolved confirms that
negotiations did not and could not lead to the settlement of the
dispute.
o The Court therefore concludes that the condition set forth in
Article 30, paragraph 1, of the Convention that the dispute
cannot be settled by negotiation has been met.
(2) That, after a request for arbitration has been made by one of the parties,
they have been unable to agree on the organization of the arbitration within six
months from the request. [such condition was met]
 A direct request to resort to arbitration was made by Belgium, in which
it remarked that “the attempted negotiation with Senegal, which started
in November 2005, ha[d] not succeeded”;
o Belgium, “in accordance with Article 30, paragraph 1, of the
Torture Convention, consequently ask[ed] Senegal to submit
the dispute to arbitration under conditions to be agreed
mutually”.
o Following its request for arbitration, Belgium did not make any
detailed proposal for determining the issues to be submitted to
arbitration and the organization of the arbitration proceedings.
o In the Court’s view, however, this does not mean that the
condition that “the Parties are unable to agree on the
organization of the arbitration” has not been fulfilled.
 The present case is one in which the inability of the Parties to agree
on the organization of the arbitration results from the absence of any
response on the part of the State to which the request for arbitration
was addressed.
 Article 30, paragraph 1, of the Convention against Torture requires
that at least six months should pass after the request for arbitration
before the case is submitted to the Court. In the present case, this
requirement has been complied with, since the Application was filed
over two years after the request for arbitration had been made.
II. Admissibility of Belgium’s claims
 Senegal objects to the admissibility of Belgium’s claims. Senegal
contends that none of the alleged victims of the acts said to be
Page 67 of 73
attributable to Mr. Habré was of Belgian nationality at the time when
the acts were committed.
 Belgium - does not dispute the contention that none of the alleged
victims was of Belgian nationality at the time of the alleged offences.
However, it noted that as the present jurisdiction of the Belgian courts
is based on the complaint filed by a Belgian national of Chadian origin,
the Belgian courts intend to exercise passive personal jurisdiction.
 Court - The issue of Belgium’s standing should be discussed.
WON Belgium has standing. YES.
 Belgium based its claims not only on its status as a party to the
Convention but also on the existence of a special interest that would
distinguish Belgium from the other parties to the Convention and give
it a specific entitlement in the case of Mr. Habré.
 Discussion of Convention
o The object and purpose of the Convention is “to make more
effective the struggle against torture . . . throughout the world”.
o The obligations of a State party to conduct a preliminary
inquiry into the facts and to submit the case to its competent
authorities for prosecution are triggered by the presence of the
alleged offender in its territory, regardless of the nationality of
the offender or the victims, or of the place where the alleged
offences occurred.
o All the other States parties have a common interest in
compliance with these obligations by the State in whose
territory the alleged offender is present.
o That common interest implies that the obligations in question
are owed by any State party to all the other States parties to
the Convention.
o All the States parties “have a legal interest” in the protection of
the rights involved. These obligations may be defined as
“obligations erga omnes partes” in the sense that each State
party has an interest in compliance with them in any given
case.
o This implies the entitlement of each State party to the
Convention to make a claim concerning the cessation of an
alleged breach by another State party. If a special interest
were required for that purpose, in many cases no State would
be in the position to make such a claim.
o Any State party to the Convention may invoke the
responsibility of another State party with a view to ascertaining
the alleged failure to comply with its obligations erga omnes
partes, such as those under Article 6, paragraph 2, and Article
7, paragraph 1, of the Convention, and to bring that failure to
an end.
  Court - as a State party to the Convention against Torture, has
standing to invoke the responsibility of Senegal for the alleged
breaches of its obligations under Article 6, paragraph 2, and Article 7,
paragraph 1, of the Convention in the present proceedings. Therefore,
the claims of Belgium based on these provisions are admissible. Thus,
there is no need to make a finding on whether Belgium also has a
special interest with respect to Senegal’s compliance with the relevant
provisions of the Convention in the case of Mr. Habré.
III. The Alleged Violations of the Convention against Torture
 Belgium - Senegal breached and continues to breach its obligations
under Article 6, paragraph 2, and Article 7, paragraph 1, of the
Convention by failing to bring criminal proceedings against Mr.
Habré, unless it extradites him.
 Senegal contests it has not breached any provision of the Convention
against Torture.
o The Convention breaks down the aut dedere aut judicare
[extradite or prosecute] obligation into a series of actions
which a State should take.
o The measures it has taken show that it has complied with its
international commitments. Specifically, Senegal asserts that it
has resolved not to extradite Mr. Habré but to organize his trial
and to try him; that it adopted constitutional and legislative
reforms in 2007-2008 [see letter D of Facts].
o Belgium cannot dictate precisely how it should fulfil its
commitments under the Convention, given that how a State
fulfils an international obligation, particularly in a case where
the State must take internal measures, is to a very large
extent left to the discretion of that State.
 Court- although it has no jurisdiction in this case over the alleged
violation of Article 5, paragraph 2, of the Convention, it notes that the
performance by the State of its obligation to establish the universal
jurisdiction of its courts over the crime of torture is a necessary
condition for enabling a preliminary inquiry (Article 6, paragraph 2),
and for submitting the case to its competent authorities for the purpose
of prosecution (Article 7, paragraph 1).
o By not adopting the necessary legislation until 2007, Senegal
delayed the submission of the case to its competent
authorities for the purpose of prosecution.
o Indeed, the Dakar Court of Appeal was led to conclude that
the Senegalese courts lacked jurisdiction to entertain
proceedings against Mr. Habré, who had been indicted for
crimes against humanity, acts of torture and barbarity, in the
absence of appropriate legislation allowing such proceedings
within the domestic legal order.
Page 68 of 73
o The fact that the required legislation had been adopted only in
2007 necessarily affected Senegal’s implementation of the
obligations imposed on it by Article 6, paragraph 2, and Article
7, paragraph 1, of the Convention.
o The breach alleged are discussed as follows.
(1) WON Senegal breached Article 6(2). YES.
 Under the terms of Article 6, paragraph 2, of the Convention, the State
in whose territory a person alleged to have committed acts of torture is
present “shall immediately make a preliminary inquiry into the facts”
o It is not sufficient for a State party to the Convention to have
adopted all the legislative measures required for its
implementation; it must also exercise its jurisdiction over any
act of torture which is at issue, starting by establishing the
facts.
 Article 6, paragraph 2, of the Convention requires that steps must be
taken as soon as the suspect is identified in the territory of the State,
in order to conduct an investigation of that case. The establishment of
the facts at issue, which is an essential stage in that process, became
imperative in the present case at least since the year 2000, when a
complaint was filed in Senegal against Mr. Habré.
o The Court observes that a further complaint against Mr. Habré
was filed in Dakar in 2008, after the legislative and
constitutional amendments made in 2007 and 2008, but there
is nothing in the materials submitted to the Court to indicate
that a preliminary inquiry was opened following this second
complaint. Indeed, in 2010 Senegal stated before the
ECOWAS Court of Justice that no proceedings were pending
or prosecution ongoing against Mr. Habré in Senegalese
courts.
o The Court finds that the Senegalese authorities did not
immediately initiate a preliminary inquiry as soon as they had
reason to suspect Mr. Habré, who was in their territory, of
being responsible for acts of torture. That point was reached,
at the latest, when the first complaint was filed against Mr.
Habré in 2000.
 The Court therefore concludes that Senegal has breached its
obligation under Article 6, paragraph 2, of the Convention.
(2) WON Senegal breached Article 7(1). YES.
 Article 7, paragraph 1, of the Convention provides: “The State Party in
the territory under whose jurisdiction a person alleged to have
committed any offence referred to in Article 4 is found shall in the
cases contemplated in Article 5, if it does not extradite him, submit the
case to its competent authorities for the purpose of prosecution.”
  Court - The obligation to prosecute provided for in Article 7, paragraph
1, is normally implemented in the context of the Convention Against
Torture after the State has performed the other obligations provided
for in the preceding articles, which require it to adopt adequate
legislation to enable it to criminalize torture, give its courts universal
jurisdiction in the matter and make an inquiry into the facts. These
obligations, taken as a whole, may be regarded as elements of a
single conventional mechanism aimed at preventing suspects from
escaping the consequences of their criminal responsibility, if proven.
2.a. The nature and meaning of the obligation laid down in Article 7, paragraph
1 those acts to its competent authorities for the purpose of
 Belgium - it is only if for one reason or another the State concerned
does not prosecute, and a request for extradition is received, that that
State has to extradite if it is to avoid being in breach of this central
obligation under the Convention.
 Senegal - the Convention certainly requires it to prosecute Mr. Habré,
which it claims it has endeavoured to do by following the legal
procedure provided for in that instrument, but that it has no obligation
to Belgium under the Convention to extradite him.
 Court - Article 7, paragraph 1, requires the State concerned to submit
the case to its competent authorities for the purpose of prosecution,
irrespective of the existence of a prior request for the extradition of the
suspect. That is why Article 6, paragraph 2, obliges the State to make
a preliminary inquiry immediately from the time that the suspect is
present in its territory.
o The obligation to submit the case to the competent authorities,
under Article 7, paragraph 1, may or may not result in the
institution of proceedings, in the light of the evidence before
them, relating to the charges against the suspect.
o However, if the State in whose territory the suspect is present
has received a request for extradition in any of the cases
envisaged in the provisions of the Convention, it can relieve
itself of its obligation to prosecute by acceding to that request.
o It follows that the choice between extradition or submission for
prosecution, pursuant to the Convention, does not mean that
the two alternatives are to be given the same weight.
Extradition is an option offered to the State by the Convention,
whereas prosecution is an international obligation under the
Convention, the violation of which is a wrongful act engaging
the responsibility of the State.
2b. The temporal scope of the obligation laid down in Article 7, paragraph 1
 First Question: Whether the Convention applies to offences committed
before 26 June 1987, Belgium contends that the alleged breach of the
Page 69 of 73
obligation aut dedere aut judicare occurred after the entry into force of
the Convention for Senegal, even though the alleged acts occurred
before that date.
o Court concludes that Senegal’s obligation to prosecute
pursuant to Article 7, paragraph 1, of the Convention does not
apply to acts alleged to have been committed before the
Convention entered into force for Senegal on 26 June 1987.
o However, the complaints against Mr. Habré include a number
of serious offences allegedly committed after that date (see
paragraphs 17, 19-21 and 32 above). Consequently, Senegal
is under an obligation to submit the allegations concerning
prosecution.
o Although Senegal is not required under the Convention to
institute proceedings concerning acts that were committed
before 26 June 1987, nothing in that instrument prevents it
from doing so.
 Second question: what was the effect of the date of entry into force of
the Convention, for Belgium, on the scope of the obligation to
prosecute?
o Belgium has been entitled, with effect from 25 July 1999, the
date when it became party to the Convention, to request the
Court to rule on Senegal’s compliance with its obligation under
Article 7, paragraph 1. In the present case, the Court notes
that Belgium invokes Senegal’s responsibility for the latter’s
conduct starting in the year 2000, when a complaint was filed
against Mr. Habré in Senegal
2c. Implementation of the obligation laid down in Article 7, paragraph 1
 The Court observes that, under Article 27 of the Vienna Convention on
the Law of Treaties, which reflects customary law, Senegal cannot
justify its breach of the obligation provided for in Article 7, paragraph 1,
of the Convention against Torture by invoking provisions of its internal
law, in particular by invoking the decisions as to lack of jurisdiction
rendered by its courts in 2000 and 2001, or the fact that it did not
adopt the necessary legislation pursuant to Article 5, paragraph 2, of
that Convention until 2007.
 While Article 7, paragraph 1, of the Convention does not contain any
indication as to the time frame for performance of the obligation for
which it provides, it is necessarily implicit in the text that it must be
implemented within a reasonable time, in a manner compatible with
the object and purpose of the Convention.
 The Court considers that the obligation on a State to prosecute,
provided for in Article 7, paragraph 1, of the Convention, is intended
to allow the fulfilment of the Convention’s object and purpose, which is
 “to make more effective the struggle against torture” (Preamble to the
Convention). It is for that reason that proceedings should be
undertaken without delay.
 The Court finds that the obligation provided for in Article 7, paragraph
1, required Senegal to take all measures necessary for its
implementation as soon as possible, in particular once the first
complaint had been filed against Mr. Habré in 2000. Having failed to
do so, Senegal has breached and remains in breach of its obligations
under Article 7, paragraph 1, of the Convention.
IV. Remedies
 The State in whose territory the suspect is present does indeed have
the option of extraditing him to a country which has made such a
request, but on the condition that it is to a State which has jurisdiction
in some capacity, pursuant to Article 5 of the Convention, to prosecute
and try him.
 The Court emphasizes that, in failing to comply with its obligations
under Article 6, paragraph 2, and Article 7, paragraph 1, of the
Convention, Senegal has engaged its international responsibility.
 Consequently, Senegal is required to cease this continuing wrongful
act, in accordance with general international law on the responsibility
of States for internationally wrongful acts.
 Senegal must therefore take without further delay the necessary
measures to submit the case to its competent authorities for the
purpose of prosecution, if it does not extradite Mr. Habré.
DISPOSITION: The Court
1. Unanimously, finds that it has jurisdiction to entertain the dispute
between the Parties concerning the interpretation and application of
Article 6, paragraph 2, and Article 7, paragraph 1, of the United
Nations Convention against Torture
2. by a vote of 14-2
(a) Finds that it has no jurisdiction to entertain the claims of Belgium
relating to alleged breaches, by the Republic of Senegal, of
obligations under customary international law;
(b) Finds that the claims of Belgium based on Article 6, paragraph 2,
and Article 7, paragraph 1, of the United Nations Convention
against Torture are admissible;
(c) Finds that the Republic of Senegal has breached its obligation
under Article 6, paragraph 2, of the United Nations Convention
against Torture
3. Unanimously, finds that the Republic of Senegal must, without
further delay, submit the case of Mr. Hissène Habré to its
competent authorities for the purpose of prosecution, if it does not
extradite him.
Page 70 of 73
Democratic Republic of the Congo v. Uganda (2005)
Vienna Convention on Diplomatic Relations (1961)
Article 22
1. The premises of the mission shall be inviolable. The agents of the
receiving State may not enter them, except with the consent of the
head of the mission.
2. The receiving State is under a special duty to take all appropriate
steps to protect the premises of the mission against any intrusion or
damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity.
3. The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune
from search, requisition, attachment or execution.
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to
any form of arrest or detention. The receiving State shall treat him with due
respect and shall take all appropriate steps to prevent any attack on his
person, freedom or dignity.
FACTS:
 This case involves the Congo War. [Short historical background. Not
written in the case.]
o Two ethnic tribes, the Hutu and the Tutsi have been engaged
in centuries-long ethnic strife.
o During the colonial era, many modern-day territories were
carved in the African region according to the will of the
conquering powers.
o Some of these territories were the demarcations of Zaire,
Rwanda, and Uganda. Basically, the problem was that
colonial powers divided the land even though borders they
drew up included both Hutu and Tutsies in the same
territorial boundaries.
o 1960s to 1990s – Zaire, under the dictator Mobutu,
experienced chronic economic collapse brought about by
systemic corruption.
o 1995 – Rwandan genocide by the Tutsi majority pushed Hutu
refugees into Zaire.
o 1996 – Hutu, based in Eastern Zaire, began conducting cross-
border raids on Rwanda.
o Rwanda took this as a violation on their state sovereignty.
With active support from Uganda, Rwanda, and Angola, the
 Tutsi rebel leader (Zaire) Laurent-Desire Kabila launched a
large-scale assault which eventually resulted in the overthrow
of the Mobutu government.
o The installment of Kabila as President did not change things.
Chaos still reigned. Kabila turned into the tyrant he had
battled for three decades. Millions have been reported dead
as a result of the conflict.
 [The case.] Congo charges Uganda of acts of aggression (Article 1,
Resolution 3314 of the UN GA, 1974; ICJ jurisprudence; Article 2, par.
4 of UN Charter), repeated violations of the Geneva Conventions of
1949, in flagrant disregard of international humanitarian law in conflict
zones, and massive human rights violations Specific Acts are the
following:
o Forcible possession of the Inga hydroelectric dam and deliberately
and regularly causing massive electrical power cuts
o Shooting down a Boeing 727 (property of Congo Airlines) resulting
in the death of 40 civilians
 Congo asked the Court to declare the following:
o That all Ugandan armed forces vacate Congo
o That Uganda immediately and unconditionally withdraw all its
nationals from Congo
o That Congo is entitled to damages
 Congo also asked for provisional measures from the ICJ pursuant to
Article 41 of its statute:
o Uganda must order the withdrawal of its army from Kisangani
o Uganda must order its army to cease fighting or military activity
and withdraw completely from Congo, and cease and desist from
providing any direct or indirect support to any entity preparing to
engage military activities against Congo
o Uganda must take all measures to ensure that its forces or agents
desist from committing or inciting commission of war crimes and
other unlawful acts
o Uganda must discontinue any act having the aim of disrupting
actions that intend to give the population of the occupied zones
the benefit of their human rights
o Uganda must cease the illegal exploitation of natural resources of
Congo and the illegal transfer of assets
o Uganda must respect the sovereignty and territorial integrity of
Congo
 IN RE SOVEREIGN IMMUNITY: UGANDA lodges a counter-claim
that Congolese armed forces attacked the premises of the Ugandan
embassy, maltreated its diplomats, and other Ugandan nationals
present in the premises and at Ndjili International Airport.
o CONGO: to the extent that it now relates to the interpretation and
application of the Vienna Convention of 1961 on Diplomatic
Page 71 of 73
Relations, the claim submitted by Uganda radically changes the
subject-matter of the dispute, contrary to the Statute and to the
Rules of Court; that part of the claim must therefore be dismissed
from the present proceedings.
o CONGO: to the extent that Uganda is seeking to engage the
responsibility of the DRC for acts contrary to international law
allegedly committed to the detriment of Ugandan nationals, the
claim is inadmissible because
 Uganda has failed to show that the persons for whose
protection it claims to provide are its nationals or
 that such persons have exhausted the local remedies
available in the DRC; in the alternative, this claim is
unfounded because Uganda has failed to establish the facts
on which it is based;
o that part of the Ugandan claims concerning the treatment allegedly
inflicted on its diplomatic premises and personnel in Kinshasa
is unfounded because Uganda has failed to establish the
facts on which it is based
o CONGO: It is denied denies that Ugandan nationals were
subjected to inhumane treatment during an alleged attack on the
Ugandan Embassy in Kinshasa on 11 August 1998 and denies
that further attacks occurred in September and November 1998.
According to the DRC, the Ugandan diplomatic buildings in
Kinshasa were never seized or expropriated, nor has the DRC
ever sought to prevent Uganda from reoccupying its property.
o CONGO: Neither did we expropriate Ugandan public property in
Kinshasa in August 1998, nor did it misappropriate the vehicles of
the Ugandan diplomatic mission in Kinshasa, or remove the
archives or seize movable property from those premises.
ISSUES + RULING:
Did Congo violate its obligations under the Vienna Convention on Diplomatic
Relations? YES.
 CONGO: By formally invoking the Vienna Convention on Diplomatic
Relations for the first time in its Rejoinder of 6 December 2002,
Uganda has “[sought] improperly to enlarge the subject-matter of the
dispute, contrary to the Statute and Rules of Court” and contrary to the
Court’s Order of 29 November 2001.
o The Court first recalls that the Vienna Convention on
Diplomatic Relations continues to apply notwithstanding the
state of armed conflict that existed between the Parties at the
time of the alleged maltreatment.
o The Court recalls that, according to Article 44 of the Vienna
Convention on Diplomatic Relations: “The receiving State
 must, even in case of armed conflict, grant facilities in order to
enable persons enjoying privileges and immunities, other than
nationals of the receiving State, and members of the families
of such persons irrespective of their nationality, to leave at the
earliest possible moment. It must, in particular, in case of
need, place at their disposal the necessary means of transport
for themselves and their property.”
o Further, Article 45 of the Vienna Convention provides as
follows: “If diplomatic relations are broken off between two
States, or if a mission is permanently or temporarily recalled :
 (a) the receiving State must, even in case of armed
conflict, respect and protect the premises of the
mission, together with its property and archives ;
 (b) the sending State may entrust the custody of the
premises of the mission, together with its property and
archives, to a third State acceptable to the receiving
State ;
 (c) the sending State may entrust the protection of its
interests and those of its nationals to a third State
acceptable to the receiving State.”
o In the case concerning United States Diplomatic and Consular
Staff in Tehran, the Court emphasized that “[e]ven in the
case of armed conflict or in the case of a breach in
diplomatic relations those provisions require that both
the inviolability of the members of a diplomatic mission
and of the premises, . . . must be respected by the
receiving State” (Judgment, I.C.J. Reports 1980, p. 40, para.
86).
 COURT: We find this formulation sufficiently broad to encompass
claims based on the Vienna Convention on Diplomatic Relations,
taking note that the new claims are based on the same factual
allegation, i.e. the alleged illegal use of force.
o The Court was entirely aware, when making its Order that the
alleged attacks were on Embassy premises. Later reference to
specific additional legal elements, in the context of an alleged
illegal use of force, does not alter the nature or subject-matter
of the dispute. It was the use of force on Embassy premises
that brought this counter-claim within the scope of Article 80 of
the Rules, but that does not preclude examination of the
special status of the Embassy. As the jurisprudence of the
Court reflects, counter-claims do not have to rely on identical
instruments to meet the “connection” test of Article 80.
 CONGO: It is in reality a claim founded on diplomatic protection and
as such fails, as Uganda has not shown that the requirements laid
Page 72 of 73
down by international law for the exercise of diplomatic protection
have been satisfied.
 COURT: Uganda relies on two separate legal bases in its allegations
concerning the maltreatment of persons.
o With regard to diplomats, Uganda relies on Article 29 of the
Vienna Convention on Diplomatic Relations.
 The Court observes that Uganda’s second counter-
claim aims at obtaining reparation for the injuries
suffered by Uganda itself as a result of the alleged
violations by the DRC of Article 29 of the Vienna
Convention on Diplomatic Relations. Therefore
Uganda is not exercising diplomatic protection on
behalf of the victims but vindicating its own rights
under the Vienna Convention.
 Accordingly, the Court finds that the failure to exhaust
local remedies does not pose a barrier to Uganda’s
counter-claim under Article 29 of the Vienna
Convention on Diplomatic Relations, and the claim is
thus admissible.
o With regard to other Ugandan nationals not enjoying
diplomatic status, Uganda grounds its claim in general rules of
international law relating to diplomatic relations and in the
international minimum standard relating to the treatment of
foreign nationals who are present on a State’s territory.
 The Court observes that the substance of this
counter-claim currently before the Court as a direct
claim, brought by Uganda in its sovereign capacity,
concerning its Embassy in Kinshasa, falls within the
ambit of Article 22 of the Vienna Convention on
Diplomatic Relations. Consequently, the objection
advanced by the DRC to the admissibility of this part
of Uganda’s second counter-claim cannot be upheld,
and this part of the counter-claim is also admissible.
 UGANDA: our second counterclaim concerns acts of maltreatment by
FAC troops of Ugandan nationals not enjoying diplomatic status who
were present at Ndjili International Airport as they attempted to leave
the country.
o COURT: Uganda bases this part of the counter-claim on the
international minimum standard relating to the treatment of
foreign nationals who are present on a State’s territory. The
Court thus considers that this part of Uganda’s counter-claim
concerns injury to the particular individuals in question and
does not relate to a violation of an international obligation by
the DRC causing a direct injury to Uganda.
 o The Court is of the opinion that in presenting this part of the
counterclaim Uganda is attempting to exercise its right to
diplomatic protection with regard to its nationals. It follows that
Uganda would need to meet the conditions necessary for the
exercise of diplomatic protection as recognized in general
international law, namely the requirement of Ugandan
nationality of the claimants and the prior exhaustion of local
remedies.
o The Court observes that no specific documentation can be
found in the case file identifying the individuals concerned as
Ugandan nationals. The Court thus finds that, this condition
not being met, Uganda’s counter-claim concerning the alleged
maltreatment of its nationals not enjoying diplomatic status at
Ndjili International Airport is inadmissible.
 COURT: There is sufficient evidence to prove that there were attacks
against the Embassy and acts of maltreatment against Ugandan
diplomats at Ndjili International Airport.
o The Court observes that various Ugandan diplomatic Notes
addressed to the Congolese Foreign Ministry or to the
Congolese Embassy in Kampala make reference to attacks by
Congolese troops against the premises of the Ugandan
Embassy and to the occupation by the latter of the buildings of
the Chancery. In particular, the Court considers important the
Note of 18 December 1998 from the Ministry of Foreign Affairs
of Uganda to the Ministry of Foreign Affairs of the DRC,
protesting against Congolese actions in detriment of the
Ugandan Chancery and property therein in September and
November 1998, in violation of international law and the 1961
Vienna Convention on Diplomatic Relations.
o This Note deserves special attention because it was sent in
duplicate to the Secretary-General of the United Nations and
to the Secretary-General of the OAU, requesting them to urge
the DRC to meet its obligations under the Vienna Convention.
The Court takes particular note of the fact that the DRC did
not reject this accusation at the time at which it was made.
 Although some of the other evidence is inconclusive or appears to
have been prepared unilaterally for purposes of litigation, the Court
was particularly persuaded by the Status Report on the Residence and
Chancery, jointly prepared by the DRC and Uganda under the Luanda
Agreement.
o The Court has given special attention to this report, which was
prepared on site and was drawn up with the participation of
both Parties. Although the report does not offer a clear picture
regarding the alleged attacks, it does demonstrate the
Page 73 of 73
resulting long-term occupation of the Ugandan Embassy by
Congolese forces.
 Therefore, the Court finds that, as regards the attacks on
Uganda’s diplomatic premises in Kinshasa, the DRC has
breached its obligations under Article 22 of the Vienna
Convention on Diplomatic Relations.
 Acts of maltreatment by DRC forces of persons within the Ugandan
Embassy were necessarily consequential upon a breach of the
inviolability of the Embassy premises prohibited by Article 22 of the
Vienna Convention on Diplomatic Relations. This is true regardless of
whether the persons were or were not nationals of Uganda or
Ugandan diplomats.
 In so far as the persons attacked were in fact diplomats, the DRC
further breached its obligations under Article 29 of the Vienna
Convention.
 COURT: Finally, there is evidence that some Ugandan diplomats were
maltreated at Ndjili International Airport when leaving the country.
o The Court considers that a Note of Protest sent by the
Embassy of Uganda to the Ministry of Foreign Affairs of the
DRC on 21 August 1998, i.e. on the day following the incident,
which at the time did not lead to a reply by the DRC denying
the incident, shows that the DRC committed acts of
maltreatment of Ugandan diplomats at Ndjili International
Airport.
o The fact that the assistance of the dean of the diplomatic
corps (Ambassador of Switzerland) was needed in order to
organize an orderly departure of Ugandan diplomats from the
airport is also an indication that the DRC failed to provide
effective protection and treatment required under international
law on diplomatic relations. The Court therefore finds that,
through acts of maltreatment inflicted on Ugandan diplomats
at the airport when they attempted to leave the country, the
DRC acted in violation of its obligations under
international law on diplomatic relations.