Remedies for the Enforcement

of Human Rights Law

Stephen Jae G. Fontanilla

What is a Remedy?
It is a basic principle of law that for every

right violated, there must be an effective

remedy.
Blacks Law Dictionary defines remedy as

the means by which violation of a right is

prevented, redressed, or compensated.

What is a Remedy?
In addition, Article 8 of the Universal

Declaration of Human Rights states that:

Everyone has the right to an effective
remedy by the competent national
tribunals for acts violating the fundamental
rights granted him by the constitution or by
law.

International Covenant on Civil and

Political Rights
Multilateral treaty signed by the United

Nations General Assembly.

December 1966
Under the Universal Declaration of Human
Rights

ICCPR
Article 2, Paragraph 3 of the International

Covenant on Civil and Political Rights states that:

Each State Party to the present Covenant

undertakes:
(a) To ensure that any person whose rights or

freedoms as herein recognized are violated shall

have an effective remedy, notwithstanding that
the violation has been committed by persons
acting in an official capacity;

ICCPR
(b) To ensure that any person claiming such

a remedy shall have his right thereto

determined by competent judicial,
administrative or legislative authorities, or
by any other competent authority provided
for by the legal system of the State, and to
develop the possibilities of judicial remedy;
(c) To ensure that the competent

authorities shall enforce such remedies

when granted.

Remedies under the UN System

Currently, however, there is no definite

international organ or tribunal to enforce

human rights.
The role of the UNHRC is to promote and
protect human rights by providing
assistance to governments such as
trainings in areas of administration of
justice, policy reform, and electoral
process. The HRC also helps in
implementing international standards on
the ground level.

Remedies under the UN System

There are three special cases where an individual may file a

complaint for violation of human rights which are incorporated

under treaties namely:
The Optional Protocol on International Covenant on Civil

and Political Rights, adopted by the Philippines in 1966 and

ratified in August 22, 1989;
The International Covenant on the Elimination of All

Forms of Racial Discrimination, adopted in 1964 and ratified

on September 15, 1967;
Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment, adopted in 1984 and

ratified on June 18, 1986.

Remedies under the UN System

Under the first treaty, an individual whose

rights have been violated may lodge a

complaint against the government that
violated human rights, provided the
government has ratified the Covenant and
the Optional protocol. The individual
however, must exhaust all necessary
procedures within the state before filing an
action internationally.

Remedies under the UN System

This is the same procedure for the second

and third treaty where any individual whose

human rights have been violated may file
an action only if he or she has exhausted
the legal remedies available domestically.
The exhaustion rule will apply except where

the application of domestic remedies is

unreasonably prolonged or unlikely to bring
relief to the victim.

1503 Procedure
An individual or group or persons who feel

that they have been prevented in

exercising their human rights may take
their cases to the UN even if it is not
covered by any treaty.
1503 Procedure
Arising from the 1970 Economic and Social

Council Resolution

1503 Procedure: Steps

Complainants name is not revealed for the

safety unless he manifest to reveal his

name to respondent government.
A brief summary of the case is sent to the
Commission on Human Rights as well as to
the Sub-Commission on Prevention of
Discrimination and Protection of Minorities.

1503 Procedure: Steps

The Security Council will forward to the

Commission any status report on gross

violation on human rights.
The Commission will decide whether to
carry out a thorough investigation.

Binding vs Non-Binding
Only Resolutions made by the Security

Council are binding agreements.

Resolutions made by other UN bodies such
as General Assembly, ECOSOC, UNHRC are
persuasive.
Ratification is usually required for treaties
to take in effect.
pacta sundt servanda

Tribunals
The Security Council adopted the

International Criminal Tribunals in 1993 by

virtue of Chapter VII of the Charter to try
persons responsible for gross violation of
international humanitarian law.
Also includes crimes against humanity,
breach of Geneva Rules of War

Tribunals
A similar tribunal was created for Rwanda

and Yugoslavia
(5/25704 established the ICTY)
(9/Res. 9555 established ICTR)

Genocide
Any of the following acts committed with intent to

destroy in whole or part a national, ethnical, racial,

or religious group such as:
Killing Members of the group
Causing serious bodily or mental harm to members of

the group
Deliberately inflicting on the group conditions of life
calculated to bring about physical destruction in whole
or part.
Imposing measures intended to prevent births from
within groups
Forcibly transferring children of the group to any group.

Nuremburg trials
The International Military Tribunal at

Nuremberg was just one of the earliest and

most famous of several subsequentwar
crimes trials. The overwhelming majority of
post-1945 war crimes trials involved lowerlevel officials and officers. They included
concentration camp guards and
commandants, police officers, members of
the Einsatzgruppen(mobile killing units),
anddoctorswho participated in medical
experiments.

Adolf Hitler, Joseph

Goebbels, Robert Ley,
Martin Bormann, Heinrich
Himmler

Yugoslavia Trials (ICTY)

Sbrenica Massacre
July 1995
Bosniaks (Bosnian Muslims) vs. Bosnian Serbs
It is considered as the biggest genocide that

occurred in Europe after WWII.

Ethnic cleansing in the forms of mass murder
and expulsion from the land took place at
Srebrenica, a small leisure town in eastern
Bosnia and Herzogovina in which the Bosnian
Serbs killed more than 8,100 Bosniak males.

Women and children were allowed to be

shipped out of Srebrenica, but Bosniak men

and boys were separated for what was
claimed to be interrogation when they were
actually executed.

ICTY
The International Criminal Tribunal for the former

Yugoslavia (ICTY) is a United Nations court of law

dealing with war crimes that took place during
the conflicts in the Balkans in the 1990s.
Since its establishment in 1993 it has irreversibly
changed the landscape of international
humanitarian law and provided victims an
opportunity to voice the horrors they witnessed
and experienced.
The Tribunal has shown that an individuals
senior position can no longer protect them from
prosecution.

ICTY
Radovan Karadi
Indicted for genocide,
extermination, murder,
persecutions,
deportation, inhumane
acts, acts of violence
the primary purpose of
which was to spread
terror among the
civilian population,
taking hostages

Rwanda Trial (ICTR)

April to June 1994
Hutus (in majority) vs.

Tutsis (in minority)

Approximately 800,000
Tutsis and moderate Hutus
were slaughtered
Rwanda was led by Hutu
president Juvenal
Habyarimana. The
genocide was triggered by
his death when his plane
was shot down. Some say
it was Hutu rebels to create
a pretext in order to carry
out their well-laid plans

ICTR
Rwanda used to be a Belgian colony. The

Belgians assigned identity cards to the

people, dividing them between the Hutus and
the Tutsis. The Tutsis looked more elegant,
light-skinned, had thinner noses. In short
they were deemed more superior by the
Belgians so they were given better benefits.
The Hutus grew more resentful over the
years, killing Tutsis in a series of riots in 1959.
When the Belgians finally gave Rwanda its
independence, the Hutus took over.

ICTR
The presidential guard initiates a campaign

of vengeance, slaughtering Tutsis and

moderate Hutus. Civilians were encouraged
to partake in the killings by the presidential
guard and through radio propaganda,
forming the Interahamwethose who
attack together.
The international community largely left
the Rwandans alone. UN peacekeepers had
pulled out after 10 of its soldiers were
murdered.

ICTR
The RPF finally captures Kigali. A multi-

ethnic government is set up but the Hutu

leader was put to jail on the charges of
inciting ethnic violence. Paul Kagame, a
Tutsi, takes over. With much of the Hutus
having fled to Congo, the tension is still
raisedmore than 5 million deaths because
of it.

ICTR
The ICTR was established for the prosecution of

persons responsible for genocide and other

serious violations of international humanitarian
law committed in the territory of Rwanda
between 1 January 1994 and 31 December
1994.
It may also deal with the prosecution of

Rwandan citizens responsible for genocide and

other such violations of international law
committed in the territory of neighbouring
States during the same period.

International Military Tribunal for

the Far East (IMFTE)
The U.S. and its allies established an

International Military Tribunal for the Far East

(IMFTE) to prosecute Japanese military and
government leaders. Twenty-eight high-ranking
Japanese political and military leaders along
with others were indicted on 55 counts in the
Tokyo trial.
The accused group included former prime

ministers, foreign ministers, economic and

financial leaders, ambassadors, war ministers,
navy ministers, and senior military officers.

International Criminal
Court
The International

Criminal Court (ICC),

governed by the Rome
Statute, is the first
permanent, treaty
based, international
criminal court
established to help end
impunity for the
perpetrators of the most
serious crimes of
concern to the
international

The ICC is an independent international organization,

and is not part of the United Nations system. Its seat

is at The Hague in the Netherlands. Although the
Courts expenses are funded primarily by States
Parties, it also receives voluntary contributions from
governments, international organizations, individuals,
corporations and other entities.
The international community has long aspired to the

creation of a permanent international court, and, in

the 20th century, it reached consensus on definitions
of genocide, crimes against humanity and war
crimes.

Because the ICC Statute is a treaty, States

are free to join or not join the ICC as they

see fit.In deciding to join the ICC, States
accept that the Court can exercise
jurisdiction over their nationals or territory.
The ICC is not a court of universal

jurisdiction. Its jurisdiction is limited to the

territories and nationals of States Parties or
States otherwise accepting its jurisdiction.

The ICC is not imposed on States. States

must affirmatively accept its

jurisdiction.The only exception is when the
United Nations Security Council refers a
case to the Court in the exercise of its
recognized responsibilities to maintain and
restore international peace and
security.This decision requires the
concurrence of all five permanent members
of the Council.

Signature status:

Philippines signed the Rome Statute on 28

December 2000.
Ratification and Implementation Status:
Philippines deposited its instrument of

ratification of the Rome Statute on 30 August

2011.

Crimes Against Humanity

(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and

religious grounds;

National Human Rights

Institutions
Established in 1978 after the UN Convention on Geneva
Neither judicial nor law making
Advisory in nature

Functions:
1. To act as a source of human rights information for the

Government and people of the country

2. To assist in educating public opinion and promoting
awareness of and respect for human rights
3. To consider, deliberate upon and make recommendations
regarding any particular state of affairs that may exist
nationally and which the government may wish to refer them

4. To advise on any questions regarding

human rights matters referred to them by

the Government
5. To study and keep under review the
status of legislation, judicial decisions and
administrative arrangements for the
promotion of human rights, and to prepare
and submit reports on these matters to the
appropriate authorities
6. To perform any other function which the
government may wish to assign to them in
connection with the duties of the State
under those international instruments in

Local Remedies in the

Philippines
There is a distinction to human rights

violations in the Philippines as to the nature

of the violation committed. Most human
rights violations in the country are now
treated as criminal offenses under the
Revised Penal Code or under a special
penal law, therefore concluding that the
only remedy in these cases is criminal
prosecution. Rule 110 of the Rules of Court
provides the necessary steps for the
prosecution of offenses while under the
Rule 113 states how arrest should be made.

Commission on Human
Rights
Most people have a connotation that the

Commission of Human Rights (CHR) in an

enforcer of human rights law in the Philippines.
Looking closely on its function under the 1987
Constitution show that the Commission was not
intended to be an enforcer but only limited to
investigative, educational, legislative, visitiorial,
and monitoring of human rights violations. The
CHR is merely a watchdog of human rights.
The main constitutional power and function of

the CHR is to investigate on its own or on

complaint by any party on all forms of human
rights violations involving civil and political
rights (Article XIII, Sec 18 [1] 1987 Philippine
Constitution)

Duterte and the Philippine Drug

War