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Geneva Conventions

Philippines should Protest Statement of Japanese Mayor that Comfort System was necessary (For Immediate release)

ref: Prof. H. Harry L. Roque, Jr


The Philippine government should formally lodge a diplomatic protest with the Japanese government against the statement by Osaka Mayor Tori Hashimoto  that  the so-called “comfort women” of WWII served a “necessary” role by keeping troops in check. According to this obviously insane Mayor, ” soldiers living with the daily threat of death needed some way to let off steam which was provided by the comfort women system”. There are at least 200,000 women who were made to serve in these comfort stations in Korea, China and the Philippines.

The statement is crass, obscene, and is an attempt to justify a criminal act under international law. Specifically, rape and all forms of degrading and humiliating treatment committed in the context of an armed conflict -have always been illegal under oith customary international law and under the Geneva Conventions. Moreover, since it was publicly made by an elected agent of the Japanese state, the statement is an official pronouncement of the state Japan nonetheless, pursuant to the Articles of State responsibility. These articles, codified in the form of a UN general Assembly resolution, provides that all acts and /or statements by state organs may give rise to attribution to the state

Instead of justifying this war crimes, the Japanese government publicly apologize for this systematic criminal act and pay reparations to their victims.

We are in the process of studying further legal options against the Mayor of Osaka and the Japanese government for this criminal statement.

Disclosure:  As Chair of the Center for International Law (Centerlaw), I  represent the  Malaya lolas, a group of women who were raped systematically during World War II in their hometown of Candaba, Pampanga.

Rape and probable cause against Del Castillo

Voting 38-10, with no abstentions, the House of Representatives Committee on Justice determined the existence of probable cause for betrayal of public trust against Supreme Court Associate Justice Mariano Del Castillo. This is the latest in the saga of the Malaya Lolas, victims of mass rape during World War II, who have been fighting for redress for the past 60 years. The impeachment, together with the Lolas’ motion for reconsideration pending in the case of Vinuya et al vs. Executive Secretary, are the last remaining legal attempts to obtain justice for these victims.It was my first time to attend the House proceedings. Last week, four of the Lolas trooped to the Committee to give evidence to prove the existence of probable cause against the magistrate. Unfortunately, in the one and only time I could have spoken on behalf of the Lolas in Congress, I happened to be abroad to deliver plenary remarks in an international conference to mark the tenth year of the International Criminal Court in Sydney, Australia. I would have preferred to talk on behalf of the Lolas in Congress. Unfortunately, my restricted and non-refundable ticket to Sydney had already been issued by the time I received my invitation to the Committee hearing. It was my law partner Joel Butuyan and the Executive Director of Center for International Law, Romel Bagares, who went to represent the Lolas in Congress.But just as the Lolas were giving their testimony in Congress, I too was discussing their plight in the ICC conference. Before an audience consisting of the “ who’s who” in international law, I discussed lessons learned and challenges arising from the Philippine accession to the Rome statute of the ICC. One such challenge is the ability of the Philippines to exercise primary jurisdiction in crimes cognizable by the ICC. I argued that the decision in Vinuya, the Lolas’ case, is evidence of a lack of capacity of our courts to apply the basic principles of international criminal law. This may be a from of “inability” to exercise primary jurisdiction. The good news is that this would justify the ICC prosecuting similar crimes in the future without offending sovereignty.

The audience was in disbelief when told about the Vinuya decision They could not understand why the Court declared that the waiver of further reparations provided in the San Francisco Peace pact should prevail over the jus cogens norm against rape as a war crime and the duty to provide redress to victims thereof. That the women are entitled to reparations despite the waiver of further reparation has been the consistent position of the United Nations, particularly the Special Rapporteur on violence against women and the Committee on the Elimination of Discrimination Against Women. Since the pendency of Vinuya, the South Korean Constitutional Court has expressed the same opinion. Only recently, the latter ruled that a failure of the South Korean government to espouse their comfort women’s claim is unconstitutional.

Worse, the audience was baffled with our Court’s opinion that rape only became criminal in the 1990s as a result of the decision of the Rwanda tribunal in the case of Prosecutor v. Akayesu. This was what prompted me to instruct my law associates to look at each and every footnote cited by the Court in Vineyard. Simply put, that conclusion was wrong.

Back to the Congressional hearing, much of the time spent prior to the voting on the existence of probable cause was whether the plagiarism and the twisting complained of by the complainants were serious enough to warrant impeachment. The chairman of the committee, Rep Neil Tupas, started the hearing by reading from the proceedings of the constitutional commission. It was clear from what Tupas read that betrayal of public trust as a impeachable offense is new. It was added to include acts which may not be criminal- but could still affect the fitness of an impeachable officer to hold office.

Yesterday’s ruling was ground breaking not only insofar as the Lolas’ quest for justice is concerned. In Roque v. De Venecia, our Court ruled that the definition of betrayal of pubic trust is beyond the ambit of judicial review and is a political question, The question was given an answer yesterday: 32 counts of plagiarism and the twisting perpetrated by Justice Del Castillo in Vinuya, albeit allegedly without intent, constitute betrayal of public trust.

Future magistrates, beware.

Congratulations, Mr. President

After 34 years, the Philippines has finally taken steps to ratify Additional Protocol 1 to the Geneva Conventions. AP1, as it is referred to, was entered into by the international community in 1977 to expand the coverage of protection to all civilians in times of armed conflict. Under the 1949 Geneva Conventions, only those civilians living in “occupied territory” were entitled to protection. This ignored the reality that non-combatants living in the territory of a party to a conflict could also be the subject of inhumane attacks perpetrated by combatants and fighters. This was certainly the case with the German Jews and gypsies who perished likewise in the gas chambers of Auschwitz, together with civilians in occupied territories such as Poland and other central European countries. AP 1 hence seeks to insulate civilians, as much as possible, from all the adverse consequences of an armed conflict.
The international community adopted AP1 at the same time as Additional Protocol 2 to the Geneva Conventions. AP 2 provides, for the first time, binding code of conduct to all fighters in non-international armed conflicts. This was a worldwide recognition that since World War Two, the world has seen more conflicts which were not interstate in nature, but between states and domestic armed groups. It was also the sad experience of humanity that these internal armed conflicts were not only more prevalent, but also proved to be more barbaric and inhumane. The Philippines had to have Cory Aquino as President before we could accede to AP 2 in 1986. Meanwhile, despite Mrs. Aquino, we have opted to shy away from AP1.

The reason for our non-accession to AP 1 is the provision under the Geneva Conventions that defines an international armed conflict as those “between states or between a state and a belligerent group engaged in a war of national liberation”. We have been a theater to the world’s longest-running communist insurgency, the conflict with the New Peoples Army, as well as two of the longest running insurgencies involving those clamoring for a separate Islamic independent state, the Moro National Liberation Front and the Moro Islamic Liberation Front. The fear then of all Philippine governments since Mrs. Aquino’s time was that ratifying AP 1 might lead to an international recognition of these insurgents’ status as belligerents, which already is the position of the lawyers of NPA.

Fortunately, the Philippine government has seen through this specious argument and has finally realized that bare assertion of a belligerent status will not suffice under international law. In fact, there have only been two conflicts recognized by the international community as genuine wars for national liberation, to wit: the conflicts against the racist’s regimes of Rhodesia and South Africa. This is because textually, the Geneva Conventions specify that wars of national liberations governed by the Geneva Conventions are only those against “racists or colonial regimes”. The NPA clearly cannot qualify as a belligerent group under this very clear definition.

In any case, congratulations are in order to President Noynoy Aquino for finally sending AP 1 for concurrence of the Senate, which is the last constitutional step before we could deposit our instrument of ratification evidencing our intent to be bound by the treaty. Certainly, his submission of the treaty after 34 long years is proof that despite his declining ratings, Aquino has recognized the importance of providing protection to all civilians from the adverse consequences of armed conflict. Kudos too to the Chair of the Senate Committee on Foreign Affairs, the pride of the UP Institute of Mass Communication, Senator Loren Legarda, for prioritizing the Senate hearings on AP 1. The good senator has also promised to prioritize Senate concurrence to the Rome Statute of the International Criminal Court, yet another institutional remedy against impunity here and abroad.


Speaking of the UP Institute of Mass Communication, it lost recently one of its best journalism educators and one of the country’s most respected journalists, Chit Estela. Aside from her stellar performance as a journalist in publications such as Malaya, the Philippine Daily Inquirer, Manila Times, Philippine Journalism Review, and with Vera Files, the country’s newest but probably the best investigative journalism outfit, Chit will be most remembered for her uncompromising stand in favor of press freedom even at great cost to her personal well-being.

When the then-Gokonwei-controlled Manila Times wrote a series of investigative reports on supposed pay-offs given in connection with the IMPSA hydro-electric plant during the short administration of Joseph Estrada, the latter was furious and actually filed a P110-million libel suit against the publication. The former President though indicated that he withdraw his suit if the publication and its editors apologize to him. Chit, then a senior editor of the Manila Times, refused downright to apologize, standing pat on her conviction that no one should apologize for good journalism. When the paper did apologize, Chit, unlike many of her peers who opted for the easy way out, opted to resign rather than sit through the ignominy of an obvious attack on press freedom. Her decision to resign marked the end of her “mainstream” journalism career as Chit would then spend the rest of her professional life in alternative media outlets such as the Pinoy Times and Vera files.

Chit certainly lived a life worthy of emulation. Though she has moved on, I am sure her legacy will live on especially in the hearts and minds of the young people whom she has taught and mentored.