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International Criminal Court

Obama and the future of the UN

(From the Manila Standard column of Atty. H. Harry L. Roque, Jr. posted on September 19, 2013)

While all our attention was divided between the Priority Development Assistance Fund scam and the war in Zamboanga, we failed to give sufficient attention to an important development that could change the course of history. I am referring to President Barrack Obama’s seeming resolve to resort to unilateral use force in Syria.

I cannot help but be sympathetic to Obama’s cause. We have observed for the last two and a half years how innocent civilians have been fired upon by armed elements of the Syrian security force. While the shootings have become regular, the fact that there has not been an organized armed group opposing the Assad regime does not even make the laws and customs of warfare applicable to the conflict. The shootings have been so widespread that the  UN now estimates the death toll to have reached 100,000 since 2011, when demonstrators were first upon by  the ruling Ba‘ath government.

Now, the US President claims that in addition to conventional weapons, the Assad regime has resorted to the use of chemical weapons against its people. This was the last straw for the US President.

Unfortunately, the issue on the unilateral use of force goes beyond whether a state can intervene on humanitarian grounds. The issue in fact, is the very survival of the United Nations system, imperfect as it may be.

When countries of the world signed the UN Charter after the second World War, it was their intention to spare mankind form the “scourge” of yet another world war. The means that to achieve this was to prohibit the use of force save for two well-defined exceptions: by way of self defense, where a state is attacked and the use of force to repel it is necessary and proportional; and two, when the use of force is authorized by the United Nations Security Council as a collective security measure under Chapter 7 of its Charter.

What is material to Obama’s threat of resort to unilateral force is not the exception of self-defense, as the US has not been the object of a military attack. It is whether the use of unilateral force may be resorted to. I say unilateral the US action contemplated does not have the sanction of the Security Council.

Truth to tell, this has not been the first time that the Security Council failed to authorize the use of force. At the height of the internal chaos in Congo, it was the General Assembly, through the “uniting for peace resolution” and not the Security Council, that authorized the sending of peace-keeping forces in the Central African state to restore peace and order. Russia then vetoed or threatened to veto any resolution in the Security Council authorizing such a deployment. When the UN sought to collect from Russia its proportional contribution to the effort, Russia refused to pay,  arguing that the peacekeeping force was contrary to the UN Charter since it was created sans a Security Council resolution. The International Court of Justice ruled that Russia must pay because while the Security Council has primary jurisdiction in the maintenance of international peace, it does not have a monopoly over this.

The issue in Syria today is more serious than what happened in Congo because even the closest allies of the US, the UK in particular, have refused to resort to the use of force in contravention of the UN Charter, The issue is not whether there is a humanitarian reason to intervene, as there has been since 2011, but whether we can do away with the UN Charter today and the means envisioned by it to maintain international peace.

We do not doubt for a second that Assad and his men should be held criminally for their acts. This is why the international community has created the International Criminal Court. Neither do we deny the urgency of the humanitarian crisis at the moment. At issue, however, is this: If countries were to use force on their own, contrary to the UN charter, what would be a better alternative to the current system?

It is wrong the Russia has been blocking efforts to authorize the use of force in the Security Council against the Assad regime. But even so, the risk of countries resorting to unilateral force at their discretion is even more frightful. It may result in worse humanitarian disasters compared to those already happening on the streets of Damascus.

Moreover, if humanitarian intervention has already crystallized in international law as a further exception to the prohibition on the use of force, there is a mechanism in the UN Charter itself that may be resorted to  amend its provisions on the use of force. Absent such an amendment, any unilateral use of force would constitute an even worse threat to international peace.

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.

ICC: The road ahead

Evelyn Serrano of the Coalition for the International Criminal Court asked me to confirm my attendance in this year’s Assembly of State Parties of the ICC. I’ve attended many such assemblies in the past as a delegate of civil society, but never as a national of a state party. This year, the seat of the Philippines at the Assembly would no longer be empty as we are now a full pledged member of the Court. In fact, it promises to be a very hectic for the Philippine delegation with Senator Miriam Defensor-Santiago standing for election to be a Judge of the Court. Unfortunately, I could not readily confirm my attendance to the ASP since UP only pays for our transportation expense if we will deliver papers at conferences. Since the Assembly of State Parties is not an academic conference, there’s no way that I could turn to the university to shoulder my travel expenses. I hope the International Criminal Bar, which only recently received a substantial grant from the European Union, can include me in its official delegation.

Quite apart from Senator Santiago’s election, the task ahead for the Philippines as the Court’s most recent member appears to be gargantuan. While we have only recently enacted our own International Humanitarian Law which gives our courts primary jurisdiction over crimes falling under the jurisdiction of the ICC—to wit, war crimes, crimes against humanity, and genocide—we still have to promulgate a law against aggression after the definition of the said crime as the crime of waging war was adopted by the Assembly of State Parties last year. Beyond this, the Philippines is also obligated to facilitate cooperation with the Court in areas involving the ICC Prosecutor’s ability to conduct his own investigations within the country, should he want to; the ability of the court itself to sit and hold sessions in the Philippines; and cooperation in matters involving apprehension of individuals and procurement of evidence. Already, we have identified at the Institute of International Legal Studies of the UP Law Center a host of measures that Congress, the Department of Justice, and the Supreme Court will have to adopt to fulfill our state obligation to cooperate with the ICC.

For instance, the current rules on the conduct of preliminary investigation would have to be amended to provide the manner by which the ICC Prosecutor and his staff could conduct their own investigations in the country. An agency, most likely the DOJ, would have to be identified and tasked to cooperate with the ICC in this regard. The Supreme Court, likewise—since the ICC would be exercising judicial power in the Philippines, a first and I have to say, a possibility that I thought would not materialize—would have to amend its Rules of Court to provide the basis and the manner of the ICC sitting in session in our territory. The last time an international tribunal exercised jurisdiction in our country was the war crimes tribunal that convicted General Yamashita after World War II. The Philippine National Police and the National Bureau of Investigation will also have to shape up if they are to satisfy their obligation to cooperate with the ICC on the apprehension of individuals and the procurement of evidence. One positive result of our accession to the Rome Statute is the fact that whether they like it or not, our investigative agencies would now be constrained to modernize their capacity to enable them to cooperate with the Court.

But the biggest challenge, really, is to change the mindset of our countrymen that the commission of the most serious crimes against the international community, such as extralegal killings, torture and enforced disappearances, should be the subject of investigation, prosecution and punishment. In a country where a gunman could be hired for as little as P5 thousand, sometimes even less, the challenge is how to make the legal system work to ensure that all those who will commit these crimes will be punished. Full stop.

Even President Benigno Aquino III and all subsequent presidents should take heed that under our IHL Law and the Rome Statute, sitting presidents no longer have immunity for the commission of international crimes, a fact that Presidents Al-Bashir of Sudan and Muammar Gaddhafi only know too well.

Already, at least five journalists have been murdered under the Aquino administration, including my personal friend, Doc Gerry Ortega of Palawan. If PNoy should fail to prosecute and punish the perpetrators of these widespread killings, he himself may be the subject of a criminal prosecution under the principle of superior responsibility.

Unfortunately, the Court can only exercise its jurisdiction prospectively from November 1 of this year. This means that Gloria Macapagal Arroyo, Jovito Palparan, and the other notorious warlords of the country could not be held responsible for their acts before the ICC for acts committed prior to November 1 of this year. Hopefully, the fact that we are now under a positive obligation to reform our legal system to enable us to discharge the duty to cooperate will improve our own capacity to punish those whom we cannot try before the ICC.

As I ponder on the future of the Philippines as the latest member of the ICC, I look back to the 11 long years that took the Philippine Coalition for the ICC to finally convince the Philippines to be a member of the Court with melancholy and pride. Surely, though, we cannot afford to sit long on our laurels as the path ahead remains long and winding. Be as it may, the message has been sent: no more impunity!

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Meeting of two presidents

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