Professional Documents
Culture Documents
For Hope
Human Dignity
A Primer on the International Criminal Court for the Security Sector
Copyright 2008
Philippine Coalition for the International Criminal Court
All or portions of this resource book may be reproduced, stored in
retrieval system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording, or otherwise, for use in training provided that the source is
acknowledged.
ISBN 978-971-93746-1-9
Editorial Team
Atty. Josel Mostajo
Atty. Byron Bocar
Evelyn Balais-Serrano
Dr. Aurora Parong
Arvie Villena, Illustrator
Amy C. Tejada, Design & Layout
Rebecca E. Lozada, Managing Editor
This publication was made possible with the support of the Delegation
of the European Commission to the Philippines.
FOREWORD
Since the year 2000, the Philippine Coalition for the International Criminal
Court has been in conversation with military and police officers on the merits
of Philippine ratification and implementation of the Rome Statute of the
International Criminal Court (ICC). In the early years, we were often told that
government was still studying the implications of supporting the ICC. In more
recent years, we were glad to take more direct questions: Will we be ceding
our sovereignty to a foreign court? Will ratification make the military officers
vulnerable to harassment suits? How can we support the Court when we are
fighting internal wars on several fronts?
This primer is published to continue our conversation with the security
sector and to address the concerns and questions we have heard in
meetings and dialogues.
While peace remains elusive, the question really is, can we afford not to ratify
and implement the Rome Statute? We need to be a party to the most
advanced mechanism for global justice precisely because of a continuing
history of unresolved internal conflicts and turmoil in our land as well as
many parts of the world where millions of Filipinos are based as overseas
workers and deployed as peacekeepers. Until parties to the peace talks, in a
broadened constituency framework, truly address the social and political
maladies that gave rise to internal conflicts, there is little chance at a
cessation of hostilities and an end to the suffering in militarized areas.
Thus, what can be done should be done to bring sanity even to the
battlefields. As we continue in our conversation with the security sector,
we are gratified to see efforts in this direction. At the National Consultative
Summit on Extrajudicial Killings and Enforced DisappearancesSearching for
Solutions convened by the Philippine Supreme Court on 16-17 July 2007,
we noted the paper presented by the Department of National Defense-Armed
Forces of the Philippines: Initiatives in Support of Human Rights and
International Humanitarian Law. (See annex on page 29)
At the same time, the judicial summit was called because of the alarming
spate of extra-judicial killings and enforced disappearances over the past
years. Before the Philippine human rights situation worsens to proportions
approximating crimes against humanity, it is best to ratify the ICC as a
preventive measure and to develop resources through the ICC expertise in
promoting an environment of accountability.
Upholding the rule of law is to the interest of combatants, be they state or
non-state combatants. Those bearing arms do so to champion and defend a
cause they believe in and will die for. It is a perversion of their ideals to
protect rogue combatants and tolerate impunity.
The security sector itself is best protected by mechanisms of accountability,
including the international justice system brought about by the ICC. We look
forward to the day when the security sector will be part of the broader
constituency for the eventual ratification and implementation of the Rome
Statute by the Philippines.
When the Nuremberg Tribunal was created after the Second World War, the
United States of America sent as its chief prosecutor no less than a sitting
Justice of the US Supreme Court, Robert Jackson, and he called the tribunal
the highest tribute that power every paid to reason.
Today, we have evolved institutions to protect human dignity even under
conditions of armed conflict, but they require a sea change in thinking. And
that is why we, on the part of the Philippine campaign, are very happy that we
have enlisted your support as parliamentarians and as statesmen in this
struggle to campaign for the ratification.
It has been said by the ancients: War is the vanishing point of law. Before
arms, the laws fall silent. Without international law, armed conflicts were seen
as a purely Darwinian struggle, the survival of the fittest, and its human casualties
were seen solely as the inevitable, almost natural, cost of social change.
Today, the gains are three-fold and it is my hope that we can share these
three-fold gains as we campaign for the Rome Statute:
First, we de-politicize the enforcement of norms and place the campaign for
human dignity squarely on legal footing. We focus on the individual, not on
the nation or the nations cause.
Second, we internationalize the burden of prosecuting away from the reach of
partisan national groups. We shift them to international bodies beyond reach
of the power of these groups.
1
Excerpts from the paper presented by Dr. Raul Pangalangan, co-chair of the Philippine Coalition for
the ICC and former dean of the College of Law, University of the Philippines, at the Asian Parliamentarians
Consultation on the Universality of the International Criminal Court, 15-16 August 2006, Manila, Philippines
Third, we also equalize the burdens between the State and non-State actors.
I will begin with the first. The ICC provides legal and non-political standards
by which to manage armed conflicts. It used to be that warand the ensuing
bloodshed and human agonywas justified by the cause people were fighting
for, what we now call the just war theory. Today we have set aside the just
war theory, we do not ask who has the superior cause. We do not inquire
into the causes of war, we look merely into the conduct of hostilities, and we
aim merely to ensure that, if war were inevitable, both sides minimize the
human costs and respect human dignity.
The ICC will also de-politicize the prosecution of military abuses and shift
these proceedings purely to legal standards, to judge the question of
responsibility purely on objective ascertainable standards that determine what
is permissible and what is not. It avoids the guesswork of politics, limits the
biases that taint partisan judgment.
Hopefully also, it will disengage the question of international justice from
cultural biases. Recall that before the International Military Tribunal for the
Far East, the Tokyo proceedings, the cases of the comfort women were
actually reported to the Tokyo prosecutor, but the prosecutor ignored the
reports altogether as typically an Asian practice of having on-site military
brothels. In fact, decades later, when we all found out about the anguish of
these victims, the United Nations (UN) itself continued to debate on what to
call the agony of the comfort women. The proper legal term was slavery, but
the victims said that slavery would ignore the
very intimate and sexual nature of the offense
and eventually the UN rapporteur settled for the
All the officers and
term military sexual slavery.
Second, the ICC will enforce the criminal
responsibility of individuals. It will not focus
on the open-ended question of state
responsibility and shifts these questions to
political agencies. And finally, it provides a
framework for post-conflict and transition
justice. By focusing on the individual, the
ICC is able to avoid the more ideological
debate on whose cause is right and whose
cause is wrong.
6 For Hope & Human Dignity
Also, ad hoc tribunals do not offer sufficient assurance that those who
commit atrocities will face individual criminal responsibility afterwards. Thus,
it does not matter that the individual belongs to the victorious party. All the
officers and combatants are held responsible whether or not they win or lose
in the conflict, provided it is proved that they committed prohibited acts.
Third, the ICC provides a neutral international mechanism by which to
constrain the conduct of war. It criminalizes the grave breaches banned by
international humanitarian law. It shifts the punishment of grave breaches
away from bilateral commitments between parties. For me, this is the most
important part. They are punished by a tribunal that is both international and
standing. International, not domestic; standing, not ad hoc. This two-fold
combination is very important. Notice that the past international criminal
tribunalsNuremberg, Tokyo, Yugoslavia, and Rwandawere all ad hoc
tribunals created for a specific dispute. Here in Asia, we have the Khmer
Rouge Tribunal in Cambodia and the tribunals in East Timor. These were all
ad hoc in character.
The next alternative is standing domestic tribunals through universal criminal
jurisdiction. The primary example is the attempt to try Augusto Pinochet of
Chile before Spanish courts. The third are truth commissions. The fourth are
standing international tribunals like the ICC.
In the past, the ad hoc tribunals have been criticized for their lack of
legitimacy. Nuremberg as the victors justice over the vanquished, as revenge
in judicial garb. In fact, the most famous trial in the Philippines was that of
General Tomoyuki Yamashita. And Yamashita did not even present a defense
for the rape of Manila, the mass killing and rape committed during the
liberation of Manila. Yamashita simply said that he was prepared to answer
for all the atrocities that the soldiers under his command committed.
Moreover, the world also has been erratic in responding to tragedies: the
world looked the other way when Pol Pot and the Khmer Rouge decimated the
Cambodian people. In fact, even after the world found out about the
genocide, the Khmer Rouge continued to represent Cambodia before the
United Nations. ...Personally I doubt if the UN would have created the Rwanda
Tribunal had there not been a Yugoslavian Tribunal.
The other difficulty with ad hoc tribunals, and here I am using the Khmer
Rouge Tribunal as an example, is that it is custom-tailored to meet with the
A Primer on the International Criminal Court for the Security Sector 7
politics of both the UN and the national jurisdiction and also the domestic
politics of Cambodia. That is why the Khmer Rouge Tribunal was created
under the prodding of the UN. The guarantees of independence and fairness
are secured the UN-nominated judges, in effect, foreign judges, but the irony
of all these are conducted by the power of the Cambodian Parliament under
Cambodian law. We call these the hybrid tribunals. And why?and I hope
you do not mind my saying thisbecause the UN did not trust local justice
and this is a problem, by the way, not unique to Cambodia. It actually applies
even to the Philippines. Canada refused to extradite an accused killer to the
Philippines because the Canadian courts did not trust our Philippine justice.
We have also similar problems in the East Timor struggle for selfdetermination. It entailed the creation of ad hoc tribunals. The Serious
Crimes Unit was created by the UN Transitional Authority for East Timor. The
ad hoc Human Rights Court in Jakarta was created as a compromise between
the UN and Indonesia. There continues to be problems in enforcing its
jurisdiction over the accused.
My last point is this: The International Criminal Court allows the international
regulation of armed conflict without undermining States sovereignty. States
have often refused international oversight saying that human rights within
their borders are solely within the scope of their national sovereignty. The
advantage with the ICC is that we get to apply international responsibility even
before the conflict has reached the level of a full-blown international conflict.
The ICC Statute reflects the distinction under international humanitarian law
(IHL) between internal armed conflict and international armed conflict. It
adopts a distinction under IHL between internal armed conflict and mere
internal disturbances. It also allows the punishment of acts despite the
declarations of a state of national emergency. It avoids the clever move of
certain States to draft their declarations of national emergency.
Furthermore, the Court equalizes the burdens in cases of internal armed
conflict, between the State and non-State actors. Because then, obligations are
imposed equally upon the States armed forces and the rebel forces.
When I gave one briefing for the Cabinet, for the Philippine Cabinet for the
ratification of the Rome Statute, I noticed that the chief hesitation of our
government was not just legal. I could give them all the assurances that the
tribunal was perfectly okay. It will respect our sovereignty, it will not get us
any more trouble than we already were in I think they were concerned about
8 For Hope & Human Dignity
The wrongs which we seek to condemn and punish have been so calculated,
so malignant, and so devastating, that civilization cannot tolerate their being
ignored, because it cannot survive their being repeated.
Primer on the
International Criminal Court
for the Security Sector
11
On July 1, 1998, at the Rome Conference, 120 states voted to adopt the final
text, 21 abstained and 7 voted against, among them the USA, Israel, Japan,
China and India.
What are the obligations of States when they join the ICC?
Under the Rome Statute, States Parties have two basic obligations:
complementarity and full cooperation.
Complementarity
The ICC is unique in the sense that it should act based on the principle of
complementarity. The ICC holds the state party primarily responsible for the
investigation and prosecution of any crime committed within its jurisdiction.
12 For Hope & Human Dignity
Full Cooperation
Once the Court has determined that it may exercise jurisdiction in accordance
with the principle of complementarity, states parties agree under Article 86 to
cooperate fully with the Court in the investigation and prosecution of crimes
within the jurisdiction of the Court. Therefore, they should ensure that the
ICC Prosecutor and the defense can conduct effective investigation in their
jurisdiction, that their courts and other authorities provide full cooperation in
obtaining documents, locating and seizing assets of the accused conducting
searches and seizures of evidence, locating and protecting witnesses and
arresting and surrendering persons accused of crimes in the Court. States
should also cooperate with the Court in enforcing sentences by making
detention facilities available to convicted persons.
War crimes
The ICC will have jurisdiction over war crimes in particular when committed as
part of a plan or policy or as part of a large-scale commission of such crimes.
It includes grave breaches of the Geneva Conventions namely any acts against
persons or property protected under the Geneva Conventions, such as:
14 For Hope & Human Dignity
a.
b.
c.
d.
Willful killing;
Torture or inhuman treatment, including biological experiments;
Willfully causing great suffering, or serious injury to body or health;
Extensive destruction and appropriation of property, not justified by
military necessity carried out unlawfully and wantonly;
e. Compelling a prisoner of war or other protected person to serve in the
forces of hostile power;
f. Willfully depriving prisoner of war or other protected person of the rights
of fair and regular trial;
g. Unlawful deportation or transfer or unlawful confinement; and,
h. Taking of hostages.
War crimes also include serious violations of the laws and customs applicable
in international armed conflict. It includes crimes committed in an armed
conflict not of an international character. War crimes may also be committed
in armed conflicts that take place in the territory of a State when there is
protracted armed conflict between governmental authorities and organized
armed groups, or between such groups. However, it does not include any
situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence, or other acts of similar nature.
It is also provided in the Rome Statute that nothing in the provisions on
internal armed conflict will affect the responsibility of a State to maintain or
re-establish law and order in the State, or to defend the unity and territorial
integrity of the State, by all legitimate means.
What are the crimes that may come within the jurisdiction
of the ICC in internal armed conflicts?
The ICC has jurisdiction over crimes committed in an armed conflict not of an
international character, in particular, for serious violations of the provisions of
Article 3 common to the four Geneva Conventions, when such acts are
committed against persons taking no active part in the hostilities namely:
Violence to life and person, murder, mutilation, cruel treatment and torture;
Committing outrages upon personal dignity, in particular humiliating and
degrading treatment;
Taking of hostages;
Passing sentence and carrying out executions without previous judgment
pronounced by a regularly constituted court, affording all judicial
guarantees generally recognized as indispensable.
A Primer on the International Criminal Court for the Security Sector 15
investigators and experts to gather and validate evidence for the filing of
indictments.
decides that there are reasonable grounds to believe that the person accused
by the prosecutor has committed a crime, it may issue a warrant of arrest or
summons ordering the appearance of an accused before the ICC.
If the person is captured or voluntarily surrenders to the jurisdiction of the
ICC, the Pre-Trial Chamber will confirm the charges and trial will follow in one
of the Trial Chambers.
If there are grounds to believe that a person has committed a crime within the
Courts jurisdiction, and should be questioned by the Prosecutor or by
national authorities upon request by the Court, such person shall be informed
prior to questioning that there are grounds to believe that he/she has
committed a crime, that he/she has a right to remain silent, to have counsel of
his own choice or if he/she cannot afford one, he/she should be provided
with legal assistance without pay, and the right to be questioned in the
presence of his counsel, unless he/she has waived it voluntarily.
What are the rights of the accused facing trial in the ICC?
The Rome Statute provides ample protection for the rights of an accused
facing trial in the ICC. These are:
a. The right to be informed of the charges against him/her in a language
that he/she can fully understand.
b. To have counsel of his/her own choice, or be provided with one when he/
she cannot afford one.
c. To have adequate time and facilities for the preparation of his/her defense
and to communicate with his/her counsel freely.
d. To be tried without undue delay.
e. To be present during trial.
f. To examine witnesses against him/her and the right to present witness on
his/her behalf.
g. To have interpretation and translation, free of charge.
h. Not to be compelled to testify or to confess guilt and to remain silent.
i. To make an unsworn oral or written statement in his/her defense.
j. Not to have imposed on him/her any reversal of the burden of proof or
any onus of rebuttal.
In addition to these rights, the
Prosecutor shall disclose to the
defense as soon as practicable,
evidence in his possession or control
which he/she believes will exculpate
or mitigate the guilt of the accused,
or which may affect the credibility of
prosecutions evidence.
What benefits can the Philippines get for joining the ICC?
As a member of good standing among the community of nations, the
Philippines stands to benefit from joining the international movement for
justice by becoming a state party to the Rome treaty of the ICC for the
following reasons:
1. First and foremost, our people will be provided with an avenue of redress
and a recourse to justice if and when they become victims of crimes
against humanity, war crimes, genocide and aggression (eventually) that
may be committed in our shores by domestic or foreign criminal
offenders, whether state or non-state actors.
2. With more than 9 million Filipino migrant workers in many parts of the
world, many of them in areas affected by war and conflicts, the ICC could
also be an option to seek redress when serious crimes under the
jurisdiction of the Court are committed affecting Filipino nationals. This is
possible if the state where the crime was committed is a State Party or
when the perpetrator is a national of such state, and if and when such
state is unable or unwilling to try such case.
just like abolishing death penalty, will put the Philippines in high standing
among nations that respect human rights, uphold the rule of law and promote
international justice.
The establishment of the Court concretizes the will of the international
community in putting an end to impunity and in preventing future crimes from
happening. The Philippines, through its ratification can contribute significantly
to the realization of world peace through international justice.
the Prosecutor, the defense and the trial chamber will resolve the matter by
cooperative means, like modifying the request, determining the relevance of
the information, obtaining the information from other sources and agreeing on
such other conditions that are reasonable and fair.
For more information about the International Criminal Court, including on the situations
before the Court, please refer to www.icc-cpi.int and www.iccnow.org
Introduction
The following paper is respectfully submitted in response to the 05 July 2007
invitation and request of the Supreme Court for holistic solutions and inputs
toward addressing unexplained killings and forced disappearances of civilian
activists and media personnel.
In this connection, the Department of National Defense (DND) submits the
following material in order for the Supreme Court and participants to the
Summit to have an appreciation of the existing and recent initiatives
undertaken and mechanisms within the DND-AFP to address such unexplained
killings and forced disappearances.
The paper examines the initiatives of the DND-AFP, starting with the efforts to
incorporate Human Rights (HR) and International Humanitarian Law (IHL) in
AFP operations, relevant guidelines and issuances, AFP internal mechanisms in
support thereof to include the military justice system, and related training and
education.
It is useful to point out that the material presented here was taken up by the
recently concluded European Union-Needs Assessment Mission (EU-NAM). The
Mission invited by the Philippine Government in order for the EU to provide an
analysis to support the technical assistance, training and advice it has offered
to the Philippines to address this issue.
29
The following lists the DND-AFP initiatives in support of Human Rights (HR)
and International Humanitarian Law (IHL).