The one hundred and second


Good news to the families of the 58 victims of the infamous Maguindanao massacre. Shortly after the 1000th day anniversary of the massacre, Datu Ulo Ampatuan, brother of recently arrested and injured Ipeh Ampatuan, son of Anwar Ampatuan, grandson of Andal Ampatuan Sr, became the 102nd suspect to finally be apprehended for the massacre by the Philippine National Police.

This means that there are now 94 suspects who still have to be arrested. Without doubt, this is a very small step in the uphill battle for justice to the victims of the massacre, but good news nonetheless. What is worrisome is the pronouncement of his lawyer that 1000 days after the massacre, Ulo Ampatuan never went into hiding as in fact, he was arrested not in the jungles of Maguindanao, but in BF Resort in Las Pinas. Does this mean that all these time, the PNP was not actively seeking him out to be arrested? If so, this may mean that it would take 10 lifetimes before all of the suspects are finally arrested.

Just last week, I wrote about what next to do after we ratified the Rome Statute. Part of what is now incumbent upon us is the duty to cooperate particularly in the arrest of individuals who are subjects of warrants of arrest issued by the International Criminal Court. I have always maintained that the arrest of these persons may be our waterloo since obviously, our PNP has not proven to be effective in apprehending individuals with warrants of arrest. Aside from those still at large in the Maguindanao case, there are also the Reyes siblings of Palawan, both wanted for the murder of Doc Gerry Ortega; Joselito Binayug, wanted for the Darius Evangelista murder; former Rep. Ruben Ecleo, and Jovito Palparan. Unless the PNP shapes up, we may become the laughingstock of the international community since in almost all civilized societies, the apprehension of wanted individuals is considered to be amongst the most basis function of a police force.

This leads me now to the search for the new DILG Secretary. The DILG, by law, has supervision over both local government units and the PNP. Supervision is legally defined as the duty to ensure that hat local government units and the PNP are performing their functions. But because LGU heads have popular mandates, the thrust of the DILG really is over the PNP. It is clear that whoever will take-over the post must primarily have the ability to reign in a police force that has proven to be both inept and inefficient. This is why many of us regular citizens would like to see the likes of Senator Panfilo Lacson at the helm of the Department. Yes, the man may not be perfect- as who can claim to be perfect anyway? But there should be no doubt that Lacson, with his experience and proven abilities, can rebuild the PNP into what the law envisions it to be: the implementer and not the breaker of the law.

After the ratification, what’s next?

August 30 of this year marks the first anniversary of the Philippines ratification of the Rome Statute of the International Criminal Court. The ICC is the first permanent international tribunal created by treaty to prosecute individuals for war crimes, crimes against humanity, genocide and the crime of aggression. Its objective is simple: to ensure that any individual who commits the most serious crimes against the international community is held accountable for his acts.

Our membership in the ICC became even more important when shortly after ratification, our very own Miriam Defensor-Santiago was elected to be a Judge in the Appellate Chamber of the Court. This is a rare opportunity for a Filipino to be elected to an international Tribunal. Prior to her, only Justice Cesar Bengzon, Justice Florentino Feliciano and Ambassador Lilia Bautista have had this honor.

A year later, what comes after our ratification?

Plenty. The most pressing of which is to make sure that the Philippines comply with its obligations under the Rome statute. In this regard, there are two important tasks ahead: the duty to cooperate and the duty to ensure the principle of complementarity.

The duty to cooperate involves instances when the prosecutor- or the Court itself- requests the assistance of the Philippine government in conducting an investigation or in the trial proper of a case before the Court. While idealists like me always emphasize the normative value of supporting a tribunal that seeks to put an end to impunity, we often gloss over the details of how these normative systems will actually function. For instance, should the prosecutor decide and upon authority of the court’s pre-trial chamber to conduct an investigation here, say against the AFP, the MILF or the NPA, by what legal right will he do so? Perhaps the rulings of our Supreme Court in Angara vs Tanada and in the recent case of Magallona vs Executive Secretary could shed some light. In both these cases, the Court ruled that our duty to comply with treaty obligations has the force and effect of law. Therefore, the legal basis for the prosecutor to conduct an investigation or of the Court sitting in the Philippines is by reason of the treaty itself.

But should a law or an amendment to our Constitution be required? Since the power and manner by which our own Prosecutors conduct their preliminary investigation is provided by law, shouldn’t this law be required? Evelyn Serrano of the Coalition for the International Criminal Court pointed out that different state parties have passed so-called cooperation statutes. While conceding that this is in fact the ideal solution, my apprehension though is what if the Prosecutor wants to investigate now that there is still no such law? Does that mean the absence of law will prevent him from conducting his official task? And what about the matter of the Court sitting in Philippines territory? The Constitution is clear: judicial power shall vest in the Supreme Court and on all other inferior courts that may be provided by law. Is a constitutional amendment required to enable the ICC to sit here? Probably not . But certainly, our Supreme Court may have to issue some rule that would enable the ICC to do so.

There too is the matter of having to ratify the separate Convention, the Agreement on the Privileges and Immunities of the International Criminal Court. This will accord the Judges of the court, the Prosecutor and all of its officials such immunities that are necessary to freely discharge their functions without fear of retaliation from a state that wish to accord impunity to any of its nationals. The agreement provides that all officials and employees of the ICC should be accorded functional immunities of the type enjoyed by the United Nations and its specialized agencies.

The duty to cooperate will also compel the Philippines to be world class in such matters as according protection to victims and witnesses. Already, the duty to cooperate will compel us to amend our own Witness Protection Program to provide protection not just to witnesses, but to victims as well. It will also perhaps compel us to recognize that victims of crimes have rights under human rights law, notably, the right to reparations, and are not just mere objects that enable the state to prosecute a crime. Furthermore, I am personally hopeful that our ratification of the Rome statute that recognizes that the duty to provide reparations to victims is a duty of the international community and not just the criminal offenders -will also lead to a change in our local perspective that this duty is one owed only by the accused to be paid at the end of a very long trial.

Anent the duty to enact domestic laws that would implement the principle of complementarity, RA 9851 largely provides for the legal basis for our courts to exercise primary jurisdiction for crimes cognizable by the ICC. But as Dean Merlin Magallona has said, there is still that substantial challenge of amending further our domestic law to ensure that identical crimes are punished under our domestic law and by the ICC.

A year later, it is clear that we have a distance to go before full compliance with our state obligations under the Rome Statute. This notwithstanding, we have certainly beaten the rest of Asia since at least, we have already ratified the Statute. I am confident that the rest will follow soon.

IHL Month

August 12, 1949 was when the Philippines signed the Geneva Conventions of 1949, the only universally ratified treaty in the world . This Convention codifies the corpus of international humanitarian law. This is the branch of public international law that applies only to situations of armed conflicts. It seeks to limit the adverse consequences of war for individuals who are not actively taking part in the hostilities. It seeks to achieve this avowed objective by: one, according protections to civilians, the wounded and the sick, humanitarian workers, prisoners of war, and religious leaders; and two, by limiting the means and methods of warfare.

The principle of protection mandates all fighters not to intentionally target protected persons. On the other hand, by highlighting to combatants and fighters that they do not have unfettered discretion on the means and methods of warfare, the law provides for a non-derogable code of conduct applicable to all fighters. For instance, there is the rule that all must fighters must distinguish between individuals with protection and combatants. Under this principle known as that of “distinction,” fighters must at all times desist from targeting protected individuals such as civilians. This is why humanitarian law advocates cry “war crimes” whenever members of the Armed Forces of the Philippines or the Moro International Liberation Front or the New People’s Army target innocent civilians.

Furthermore, the law prescribes that the use of force must always be justified by military necessity. This means that all military strikes must always be for the reason that it will contribute to the military objective: that is, the complete subjugation of the enemy with the least incidental damage possible. This is why the giving of the order to “leave no quarters” or that no survivors should be left is also a war crime. This is because the military objective is only to defeat the enemy and not to kill all adversaries.

There too is the principle of proportionality which tempers the application of the principle of protection. Under this principle, the taking of life and damage to property is not always illegal if it can be shown that its perceived military advantage will outweigh its disadvantages. This, I reckon, is why all countries have agreed to be bound by IHL. For while IHL humanizes warfare, it still recognizes that states have the right to use as much force as is necessary to obtain its military objectives. Because of this rule, not all killings of civilians can be prosecuted as war crimes. Only those that expressly target civilians knowing them as such are punished.

Through an executive order, the month of August has been declared in the Philippines as IHL month to commemorate not just our signature to the Geneva Conventions, but more importantly, to remind all fighters in the country of their legal obligations under the law. Unlike human rights law which originally took the form of binding treaty obligations and therefore are duties of a state, IHL applies to all fighters without distinction. It applies to all officers and men of the AFP, the NPA. The Moro National Liberation Front, the MILF, and now, even to the Bangsamoro Islamic Federation Fighters of Umbra Kato.

This years’ celebration is unique because for the first time, we are celebrating IHL month with a three-in-one: we have passed a new domestic enabling legislation criminalizing breaches and violations of IHL, Republic Act 9851; we have become the 117th member state of the International Criminal Court, a permanent court that tries individuals for war crimes, among others; and we have become the latest state party to Additional Protocol 1 of the Geneva Convention. This latest protocol expands the protection of the law to all kinds of civilians. With these developments, we have become the most dedicated country in Asia to the implementation of IHL.

Furthermore, while we have not done away with all armed conflicts in the country, we appear to be making strides in arriving at a peace accord with all insurgents in the country, including the MILF and the NPA. This augers well too for IHL because while compliance with IHL certainly is indispensible in times of armed conflict, there is still no substitute for peace.

While the recent spate of violence waged by Umbra Kato’s BIFF in Maguindanao seems to indicate that long-term peace in Mindanao may take longer than expected, it helps that meanwhile, all Filipinos remain under the protection of IHL.

Happy IHL month to one and all!

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