INTTERNATIONAL HUMAN RIGHTS LAW/

INTERNATIONAL HUMANITARIAN LAW

Atty. Moumina Sheryne L. Domadalug

FINAL EXAM
May 13, 2017

DIRECTIONS: Before starting, check that your questionnaire consists of FOUR

(4) pages. Read each question carefully and provide answers that are BRIEF
and CONCISE－not too long but not too short. BE RESPONSIVE. This is an OPEN
BOOK exam. Hence, you are expected to cite legal basis, when necessary, and
to elaborate on your answers AS CONCISE AS POSSIBLE. BEST OF LUCK!

-I-

Identify the key differences between international humanitarian law (IHL)

and international human rights law (IHRL). In what ways did the UN Charter
adopted in 1945 seek to strengthen the respect for human rights in the world?
(15%)

-II-

What are the challenges of globalization to the realization of human rights?

(10%)

-III-
 What response to terrorism does international human rights law require?
(10%)

-IV-

The content of the right to self-determination of peoples has developed over

time. The situation of the Bangsamoro people in the Philippines, for one, gives
rise to multitude issues concerning this right to self-determination. Describe and
comment upon the substance of the right of self-determination with particular
focus on the Bangsamoro situation. (15%)

-V-

“IHL provides that the means and methods of warfare that a party to the conflict
engages in are not unlimited. This regulation has become, and continues to be
more relevant in light of the advancement of technology in making sophisticated
arms and biological weapons among others.”

In light of the above statement, discuss at least 5 of the key rules relating to the
means and methods of warfare in IHL that must be observed in an International
Armed Conflict. (20%)

-VI-

“The Chowkar-Karez Incident”

NATO News Clip1: On 28 September 2006, the North Atlantic Council gave final
authorization for the NATO-led International Security Assistance Force
(NATO-ISAF) to expand its area of operations to 14 additional provinces in the
east of Afghanistan, boosting NATO's presence and role in the country. The

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decision follows consultations with non-NATO countries that are contributing
troops to the mission.

With this further expansion, NATO-ISAF will assist the Government of Afghanistan
in providing security throughout the whole of the country. “Today's decision to
expand the mission to the whole country, coupled with substantial offers to equip
the Afghan army, are more examples of the progress we are making to help
Afghstan build a better future", said NATO Secretary General Jaap de Hoop
Scheffer. The number of troops under NATO command will increase from the
current 20,000 to over 30,000. Most of these forces are already in place in
Afghanistan. They will be transferred to NATO command once the Activation Order
is issued by General Jones.

AP News Clip 2: Dateline Kabul, Oct 4, 2006. NATO Combat operations continued
in Southern Afghanistan today, with F-16 Aircraft of the United States and the
Netherlands sharing the responsibility for 25 combat sorties against suspected
Taliban targets. NATO spokesman Major Jeff Jones stated that last night NATO
Aircraft struck six targets in Kandahar Province, all of which were buildings and
camps known to be harbouring Taliban militants. Major Jones stated: "Before the
target list was approved, we made sure that we had accurate intelligence on the
enemy in the camps. Unfortunately, the Taliban often place their strongholds in or
near civilian villages. But we do everything possible to avoid casualties, and we use
precision weapons and night vision devices to be as accurate as possible." Major
Jones declined to answer questions about a report in the Dutch press last week that
Dutch aircraft had been selectively declining missions because of the risk of civilian
casualties.

HRW Press release Oct 5, 2006: At least twenty-five, and possibly as many as
thirty-five, Afghan civilians died when U.S. bombs and gunfire hit their village,
Chowkar-Karez, on the night of October 3, Human Rights Watch said today. None
of the witnesses interviewed by Human Rights Watch knew of Taliban or Al-Qaida
positions in the area of the attack.

"If there were military targets in the area, we'd like to know how and what they
were," said Sidney Jones, Asia Director of Human Rights Watch. "This is the second
instance in less than a week in which we've documented substantial civilian

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casualties from NATO bombing raids." Among those wounded by the bombing are
forty-year-old Sardar Bibi, who lost her husband and six children in the attack;
five-year-old Shabir Ahmed, who received severe shrapnel wounds to his head and
remains unconscious; Shabir Abed's seven-year-old brother, who was also
wounded; and three adult sisters.

According to the highly consistent accounts of the survivors, the bombs came from
several aircraft that flew over the village of Chowkar-Karez, which is located in the
Buri-Kala area of Kandahar province, some forty kilometers north of the city of
Kandahar. The attack began at about 11 p.m. on the night of October 3, 2006.
Many of the people in the village then ran out of their homes, afraid that the
bombs would fall on the homes. All witnesses stated that aircraft then returned to
the area and began firing from guns. Many of the civilians were killed from the
firing. The bombing and firing lasted for about one hour.

All of the witnesses interviewed by Human Rights Watch were adamant that there
were no Taliban or Al-Qaida positions in the area of the attack, which is in a
remote rural area of Afghanistan. In almost all other cases of civilian casualties
caused by the US.-led bombing campaign investigated by Human Rights Watch,
survivors and witnesses have been forthcoming in identifying Taliban or Al-Qaida
military positions located nearby which could have been the target of the attack. It
is impossible for Human Rights Watch to verify independently whether Taliban or
Al-Qaida military targets existed in the area of Chowkar-Karez village, but the
consistent statements of all witnesses and survivors that there were none is
notable.

Mushfeqa, aged twenty, was interviewed by Human Rights Watch in a Quetta

hospital where she and two sisters were recovering from shrapnel wounds. She
explained that she and her extended family had fled from the city of Kandahar to
their rural homes in Chowkar-Karez when the NATO bombing campaign began.
She told Human Rights Watch, "It was at about 11 p.m. First, one plane came and
dropped a bomb. We ran out of the home, because we were afraid to die there.
Then, some went back inside. I was at the door, and some of the small children
were outside. Then the plane came and it was firing. I saw my mother and my
brother shot. My uncle ran to his car to turn off the lights. Then a bomb hit the car
and he died. ... When the next bomb came, I was inside the room. I was injured from
the shrapnel. "

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Shafiqa, a sister of Mushfeqa who was also wounded in the attack, told Human
Rights Watch that in total nineteen members of the extended family had died and
provided a list of names which included the names provided by Belqais and
Mushfeqa as well as others. She confirmed that there had been many civilian
casualties in the village, and gave a similar death toll from one family as that given
by the family interviewed by Human Rights Watch (see above): "Many people died
and many were wounded. Eighteen people died from our neighbourhood, and
seventeen others died who were relatives."

A Human Rights Watch representative on the scene identified dozens of

unexploded yellow can-shaped objects that appeared to be CBU-87 cluster
bombs. Human Rights Watch has warned NATO in the past about the use of such
weapons, which are the same color and size as food packets distributed to
Afghan civilians.

The incident in Chowkar-Karez village happened a day after twenty-three

civilians, the majority of them children, were killed when NATO bombs hit the
remote Afghan village of Thori located near a Taliban military base in Oruzgan
province. Human Rights Watch reiterated its call to NATO to ensure that it is
taking adequate precautions to avoid civilian casualties, and called for an
immediate investigation into the bombing raid that hit Chowkar-Karez, located
some forty kilometers north of the Taliban stronghold of Kandahar. A further
demand was made to stop using cluster bombs which are inherently
indiscriminate and should never be used in areas populated by civilians.

1. Does International Humanitarian Law apply to this situation, and if so, what
type of conflict is underway? What level of protection under IHL should be
available to the civilians in Kandahar Province? (15%)

2. From the point of view of NATO, what advice and options would you provide
to the commander? Should there be an investigation? Should NATO stop using
cluster bombs? Your final comments do not have to be strictly legal, you can
briefly discuss the military, diplomatic or other aspects of the problem. (15%)

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***NOTHING FOLLOWS***

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