ICC: At long last


After eleven years of lobbying, the Philippine Senate yesterday gave its concurrence to the Rome Statute of the International Criminal Court. This will finally pave the way for the country to be the 117th state party to the International Criminal Court. Ironically, Commission on Human Rights chairman Loretta Ann Rosales rightfully observed that 117 is also reflective of the voting pattern yesterday at the Senate: one negative vote and 17 affirmative votes! It was Senate President Juan Ponce Enrile who cast the lone dissenting vote amidst his continuing concern that Philippine troops fighting real live insurgencies may be subject to nuisance suits before the court. This is a concern that is readily addressed by the Rome statute since the court will only exercise jurisdiction on the basis of “complementarity”: only when our domestic courts are unable and unwilling to do so. It was an afternoon of suspense, to say the least. Two days ago, I was at the Senate floor with no less than 100 supporters of the court to witness the much-awaited concurrence. We were disappointed. After the opening rituals, Senate Majority Floor leader Tito Sotto asked the senators to attend a caucus at the senators’ lounge. We thought that the caucus was about the citation for contempt against the LTA accountant who was believed to be lying through her teeth. Little did we know that it was about the ICC! In a last-ditch effort to stall our membership in the court, the Senate President apparently warned the senators about his perceived downside of membership in the court. Out of deference to their leader, the body then agreed to defer voting on the resolution for a day. That was the cliffhanger. At least three senators warned me that it would be difficult to pass a resolution that the Senate President opposed. It was hence a long day of lobbying with seemingly endless telephone calls and text messages to any senator who was willing to listen. In the end, one senator claimed, “concurrence was never threatened at any point”. Apparently, the one-day deferment was simply out of deference to Senator Enrile. The International Criminal Court was created to prosecute individuals who may commit the most serious crimes against the international community. These crimes include genocide, defined as an “intent to destroy in whole or in part, a nationality, ethnic or religious group of people”; war crimes, defined as “targeting protected individuals and resorting to prohibited means and methods of warfare”; crimes against humanity, defined as “widespread or systematic attacks against civilian populations knowing that it is being directed against civilian populations”; and aggression, or the act of waging war.
The court will prosecute individuals without regard to sovereign immunity as a defense, a fact that has enabled the court to issue two warrants of arrests against sitting heads of state: Omar al-Bashir of Sudan and Moammar Gaddhafi of Libya. Furthermore, it prosecutes individuals who are probably guilty of the foregoing crime on the basis of command responsibility. This principle provides that military commanders and sitting presidents may be held responsible for crimes committed by their subordinates where they knew about it and failed to prevent their happening. Furthermore, there is no prescription for these crimes. This explains why very old individuals are still being tried for crimes that they committed as long ago as World War II. The timely Senate ratification will also enable us to nominate a Judge to the court. Apparently, one seat is up for grabs for Asia in this year’s Assembly of State Parties election for Judges scheduled for December of this year. Had the Senate waited any longer, we would miss the deadline for nomination, which is already on September 2 of this year.

Of course we celebrated. Becky Lozada, Executive Director of the Philippine Coalition for the ICC, treated to a feast at a fusion Filipino restaurant at the trendy techno hub. But after the celebration, the reality set in that the task ahead are still challenging, if not daunting.

First, there is the procedure for nominating Judges. The Rome Statute provides that we must comply with the process of selecting Judges for our own Supreme Court, or through the Judicial Bar Council. Alternatively, we should comply with the process required for the nomination of judges for the International Court of Justice. The problem with both is the lack of time given the deadline of September 2.

Then there is the obligation under the Rome Statute to punish crimes cognizable by the ICC under domestic law and to do all acts necessary for a state party to cooperate with the Court. Fortunately, the recently enacted International Humanitariam Law is sufficient basis for our courts to exercise primary jurisdiction for purposes of complementarity. It is only in the area of cooperation that we have to pass further legislation, executive orders and even revisions to our rules of court. This is a challenge since the need now is to lobby all three branches of government to ensure that our domestic laws and procedure are in synch with the Rome statute.

To be candid, I never thought that membership in the ICC was possible, at least before I become geriatric. This is because of the many atrocities under both the Marcos and Arroyo regimes that remain unpunished. Well, it’s always a pleasure to be proven wrong. Here, credit should go to both the Senate and to President Benigno Aquino III. It was the latter who reversed the Arroyo policy of rejecting the ICC as a means of ending impunity. On behalf of all victims of impunity, I express my gratitude to both the Senate and Pnoy for finally granting the Filipino people an effective remedy to impunity.

IHL: The Project


The Philippine Red Cross has designated the month of August as International Humanitarian Law Month. This is a an opportunity to write about recent developments in the law applicable in times of armed conflict.
Last year, the United States Supreme Court took a million steps backward when it rendered its opinion in the case of Holder vs. Humanitarian Law Project. Before this decision, the same court was praised for a series of decisions which declared: one, that the war against terror is governed by IHL; and two, that the procedure adopted by the Guantanamo Military Commission, which deprives the respondents access to evidence submitted against him- is in violation of common article three to the Geneva Conventions for failing short of standards of fairness in judicial proceedings recognized by civilized nations. The case of Holder forfeited almost all gains derived from the earlier cases of Hamdi, Hamdan and Boumediene.

According to its Web site, The Humanitarian Law Project is a “is a non-profit organization founded in 1985 dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law”. One of its projects is the training of members of the Kurdistan Workers Party in Turkey and the Tamil Tigers in Sri Lanka on the existing UN Human Rights mechanisms, as well as capacity building to equip members of these two organizations with knowledge and skills to enable them participate in peace talks. Both groups have been classified by the US State Department as terrorist groups.

The problem for the Humanitarian Law Project started when the US Congress legislated the Patriot Act, a law specifically crafted to deal with post-September 11 terrorism. Among others, the law prohibits the giving of “material support to groups designated as terrorists”. Penalty provided for breach of this prohibition is prison term of up to 15 years of imprisonment.

The Humanitarian Law Project then filed a petition for declaratory relief to determine if the resources it is allocating to promote peace in Kurdistan and Sri Lanka may be considered as breaches of the Patriot Act. In a major blow to the promotion of human rights and humanitarian law, the US Supreme Court said that it did: “Congress meant to preclude any type of aid to such groups because this assistance could help to “legitimate” the terrorist organization. Aid of all types also could help the group conserve resources that could then be channeled toward terrorist activities”.

In a dissenting opinion, Justice Breyer argued that while acknowledging the importance of giving the political branches great deference in matters of national security, the court’s reading of the law was too intrusive on the rights of the Humanitarian Law Project and its members. Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights or freedom of expression and freedom of association.

On the day the Supreme Court ruling was promulgated, David Cole of the Center for Constitutional Rights, counsel for the Humanitarian Law Project, after which we patterned our own Center for International Law, declared: “According to today’s Supreme Court decision, advocating for human rights and peace can be prosecuted as a ‘terrorist’ crime, punishable by 15 years imprisonment. Under this ruling, it does not matter that the speaker intends to support only nonviolent activity, and indeed seeks to discourage a resort to violence. It does not matter if the speech in fact convinces its listeners to abandon violence.”

It would seem hence that while the US Supreme Court may be credited for strengthening the binding nature of IHL by ruling that the war against terror is governed by international law, it nonetheless stunted efforts by civil society to promote peace by encouraging fightersto lay their arms and resort to the rule of law instead. “You win some, and lose some,” as the saying goes.

Meanwhile, back home, President Nonoy Aquino, son of democracy icons Ninoy and Cory Aquino, ironically declared that the notorious Human Security Act will be amended to do away with the requirement of notice as a precondition for surveillance. As stated by Senate President Juan Ponce Enrile, principal author of the law, he is not aware that there was this provision in the law, a view which I confirm. Nonetheless, heed must be given to the warning given by the UN Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism:: “respect for human rights is a cornerstone of any successful fight against terrorism”.

Kudos too to my two favorite Senators, Mirian Defensor-Santiago and Loren Legarda, for successfully sheperding the Senate concurrence of the Rome Statute of the International Criminal Court through the sub-committee level. There could be no better way to celebrate IHL month than becoming a state party to the ICC!

Joel Butuyan of SEA Media Legal Defense Network on art and of Freedom of Expression


We only have to look at a few examples in our past to realize how the free expression of very offensive ideas became defining moments of human civilization.

Ideas that were so offensive at the time they were expressed but because the tellers of these ideas braved the lynch mob majority to freely express them, these once offensive ideas went on to change the course of human civilization.

Imagine ourselves living in the time of Jesus. Ingrained in us from birth and in our daily lives are the teachings, rituals, and beliefs of the Pharisees. Then we hear this man proclaiming himself to be God. Not only offensive but extremely blasphemous at that time. Chances are, we would be part of the majority egging Pontius Pilate to “Crucify him! Crucify him!”

Transport ourselves to the time of Galileo. All our lives we have held sacred the belief that God holds the earth special by making it the center of the universe. Then comes this nut-of-a-guy named Galileo proclaiming that the Pope is cuckoo because the earth is just a tiny ball revolving around the giant sun. Chances are, we would be part of the lynch mob majority cheering the Pope as he condemns Galileo to a life of physical and eternal damnation.

Envision ourselves living in British India during the time of Mahatma Gandhi. Faced with horrendous human rights abuses by the British, we would have held the belief that an armed revolution is the sole solution. Then comes this emaciated guy Mahatma declaring instead, that we join the line of the unarmed and offer our heads to be beaten and cracked by the British. We would have been part of the majority sneering at insane Mahatma.

These three giants in human history expressed ideas that were a hundred times more offensive — during their time — compared to the penis-condom-religious images collage artwork of Mideo Cruz. Mideo’s work appears puny in comparison, offensive-wise.

Let us learn from our past, the future ideas that will further change the course of our civilizations will be a hundred times more offensive than the artworks of Mideo Cruz.

If we adopt a policy of curtailing the free expression of offensive ideas, then we will potentially miss out on civilization-changing ideas that appear offensive when viewed in the myopic context of present times.

By opening the gates to offensive ideas, of course the marketplace of ideas will potentially be flooded with ideas that are purely intended to offend. And the majority have the right and the reason to see Mideo’s artwork as belonging to this category. But to destroy these offensive ideas, we merely have to engage their purveyors in debate and expose the silliness and foolishness of their offensive ideas. History teaches us that all purely offensive ideas die a natural death merely through the antidote of debate.

So let us engage Mideo, debate with him on his artwork, and let us his detractors do our best to argue that his offensive ideas rightly belong to the dustbin of history like many other purely offensive ideas of the past. But let us not muzzle the right of all human beings to freely come to the marketplace of ideas and offer his unique view on the issue of what the world has become and what the world should be.

The spectre of violence is also raised as an argument against giving Mideo’s offensive artwork its own place under the sun. Let us not forget that offensive ideas are expressed as a challenge to engage in a debate of ideas, an invitation to engage in a battle of ideas. We are not being challenged to engage in a battle of violence. If we respond to the battle of ideas challenge by instead initiating a battle of violence, then we identify ourselves as living relics of the mobs that crucified Christ, taunted Galileo, and pilloried Gandhi.

Our rightful contribution to the advancement of our civilization should be in preventing the muzzling of the mouths of the purveyors of offensive ideas and in helping redirect the energies and attention of their detractors to the arena where the battle of ideas should take place.

The argument of “let Mideo blaspheme our Muslim brothers and he’ll see what will happen to him” is also raised. While it may be true that most of our brothers in Islamic countries are trailing behind in the advancement of freedom of expression, we can see from recent and unfolding events in the Arab world, that they are marching in the direction of advancing freedom of expression in their societies. In our own effort to transform our society, should we step back and march in cadence with our Muslim brothers or should we not trail-blaze for them on the issue of freedom of expression?

Now, on the artwork of Mideo consisting of a hodge-podge collage of pictures of past and present celebrities, and religious icons laden with a penis and condoms. Let us look inside a typical Filipino house. We see one corner brimming with religious icons. In another corner there is that Baguio barrel man with a penis longer than the entire length of his body. Inside one room are copies of Playboy magazine. We lead our wife and children in prayer before meals and bedtime, and then we make love to our wife by imagining that we are making love to our neighbor’s wife. We go to mass officiated by a priest who maintains a mistress and who drives a Lexus SUV gift-given by that @#$%&?&!!! former President.

In artistically documenting this collage of hypocritical life that many of us live, should a Filipino artist be limited to creating an Amorsolo-like realistic painting of the interiors of a house laden with the religious icons, Baguio barrel penis man, and Playboy magazines located exactly as they are placed inside a specific real house?

There would have been no Monet, Van Gogh, and Picasso if artists were shackled or pandered only to the tastes, beliefs, and ideas of the comfortable majority.

And from our shores there would be no Onib, Dalena, Bencab, Liongoren, Delotavo, Garibay, Borlongan, Justiniani, Ventura, Barredo, Leano, Bolipata, Bitancor, Palomo, Montemayor, Ruiz, Javier, Santos, Barrioquinto, Caasi, Alonday, Aguinaldo, Antonio, Orencio, Tapaya, Cruz, Paras, Jumalon, Solon, Samson, Habulan, Quirante, Coquilla, Jamoralin, Constantino, Alex Tan, and our many more talented artists.

For all these reasons, I will act as counsel to Mideo Cruz and Karen Ocampo Flores when they face the Senate investigation and the Ombudsman criminal proceedings.

MOA-AD Part 2?


Let me be very clear. There is no substitute to peace. Mindanao has been the theater of war since the Spaniards came to our shores. It is time for the people of Mindanao to finally live in an area rid of conflict and in peace. So what is the latest proposal engineered to bring peace to the war-ridden island? The Moro Islamic National liberation Front has finally made it clear. They want a state within a state (or a sub-state). According to its Web site, “The MILF’s formula to solve the Moro Question in Mindanao is very simple … Let the Moros run their affairs. Let them decide their own destiny. Let them succeed or self-destruct. Gone [are] the days when the government in Manila designed everything for them. The most important element here is self-determination … This is a right that cannot be foreclosed by any agreement or [be] the subject of negotiation.” First, what is this right to self-determination? It is a people’s right to “determine their political future and freely to pursue their economic, social and cultural development.”  Under current practice, it is a right of a people to  choose  between independence,  as well as self-government, local autonomy, merger, association or some other forms of participation in government. In other words, it is not limited to creating an independent state, contrary to what many believe. What are the limitations by which the MILF may be accorded this right? Well, in nullifying the Memorandum of Agreement on Ancestral Domain, a pact also intended to finally achieve peace during the Arroyo administration, the Supreme Court ruled that any agreement with the MILF should be within the confines of our Constitution. Said the Court: “MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the [Bangsamoro Juridical E Entity] are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.” Addressing the issue of the need to amend the Constitution to give effect to the agreement, the court declared: “Moreover, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee”. With these as guidelines, how do we assess the latest proposal of the MILF? Quite frankly, I think the latest proposal, if assented to by President Benigno Aquino III, may suffer the same fate as the earlier agreement on ancestral domain.  This is because what the MILF proposes goes beyond the grant of full autonomy that Congress may provide by law. In their own words, they want a “sub-state within a state”. This is an independent state within a federal form of government. Ours currently is a unitary form of government . In Basco et al vs. PAGCOR, the Court explained that in our system of government, “local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government.” A federal system of government, on the other hand, is where independent states share sovereignty with the central  government. Under this system, the states comprising the federation have an existence and perform functions that cannot be unilaterally changed by the central government. A federal system of government is clearly what the MILF wants under its concept of a “sub-state within a state”. There is nothing wrong with this except that as it currently stands, it cannot be done without amending the 1987 Constitution. Yes, there are procedures for this, either through a constitutional convention, a constituent assembly, or through a people’s initiative. But as stressed by Chief Justice Reynato Puno in his separate opinion : “there is no power nor is there any right to violate the Constitution on the part of any official of government. No one can claim he has a blank check to violate the Constitution in advance and the privilege to cure the violation later through amendment of its provisions. Respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.” Mr. President, take heed.

Summit on KIG


Summit on Kalayaan islands

The Institute of International Legal Studies of the University of the Philippines Law Center held last Monday and Tuesday a National Summit on the Kalayaan Group of Islands and the West Philippine Sea. The summit sought to define the national interest in the disputed islands, as well as to produce a road map on how to best assert these interests.

One hundred seventy-five stakeholders attended the summit. There were representatives from different government agencies including  the  Departments of Foreign Affairs, National Defense, Interior and Local Government, Environment and Natural Resources, Transportation and Communications and the National Security Council. Also in attendance was the very colorful mayor of the municipality of Kalayaan, Mayor Eugenio Bito-onon Jr and Rep. Dennis Socrates of the second district of Palawan.

 

The Kalayaan Island Group and the West Philippine Sea first became controversial when France laid claim to them in 1933. The governments of Japan, the United Kingdom, and China protested this. According to France, the islands were first discovered by its protectorate, Vietnam, and were administered by a state trading company, “Dio Hwang Sas” as early as 1802. China’s claim, similarly, was on an alleged historic title beginning with its discovery on 200 BC, during Emperor Wu’s reign. It argues that the Chinese first occupied the islands as early as 618, and that the disputed islands have been charted and reflected in maps as belonging to China. It claimed that both France, and its successor Vietnam, are estopped from making claim to the islands since both countries have recognized China’s title to them at various points in history, the latest of which was a statement attributed to  Premier Phan Van Dong in an note to Zhou Enlai.

 

Japanese forces briefly occupied the islands during World War II. At the end of the war, Russia suggested that Japan be made to relinquish its title to the islands in favor of China. Forty-nine out of 52 countries attending the San Francisco Peace Conference protested this. The Philippines, in the same conference, asked for authority to administer the islands on behalf of the allied forces due to its security significance to the country. This was denied and consequently, Japan was made to relinquish its title to them without specifying to which country in particular.

 

The Philippine title to the islands is based on discovery and effective occupation of islands which are separate and distinct from those occupied by Japan during the war and from those claimed by both China and Vietnam. Merchant school owner Thomas Cloma discovered these islands in the early 1950s. At the time of their discovery, they have not been previously reflected in any map. Since then, the islands were by law made part of the Municipality of Kalayaan, appended to the Province of Palawan, made part of our continental shelf and our Exclusive Economic Zone, and subject to the grant of concessions to explore the area specially for oil. Since we are closest to the islands, the Philippines also enjoys the prima facie presumption of effective occupation of the islands, and may argue that as part of the Philippine archipelago, it has been under its constructive occupation.

 

The summit highlighted areas of disagreement between academics and the Foreign Affairs Department . For instance, the DFA supported the passage of the Philippine Archipelagic Baselines Law that Dean Merlin Magallona and I impugned as unconstitutional before the Supreme Court. This law appended the KIG to the main Philippine archipelago under the regime of islands. We argued that this weakened our claim to KIG because this regime is utilized only for offshore islands. By resorting to this, we have forfeited what should have been our sole entitlement as the lone archipelagic claimant, that is, to append the islands as part of our archipelago.

 

The DFA position, though, is the law had to be passed since compliance with the United Nations Convention on the  Law of the Seas would give us “moral ascendancy”  over China. I’m not sure though if such really matters in international relations since China, meanwhile, has recently utilized  its  “nine-dash lines” to append the entirety of the South China Sea as part of its territorial waters—in utter disregard of UNCLOS. Moreover, while compliance with the convention may lead to a favorable ruling from international tribunals that may be tasked to adjudicate on the matter, China has said that it would not submit issues involving its territory to any such tribunals. It appears that our “boy scout” mentality maybe for naught.

 

This notwithstanding, the overwhelming consensus in the summit was to support  the President on his most recent pronouncement on the issue. The current policy is that “what is ours belongs to us. What is disputed may be shared.” This entails an identification of areas, which are not disputed, and the possibility of joint use for those that are in dispute. This is a pragmatic policy since the Philippines should  immediately reap the harvest for areas not in dispute and meanwhile, allow us also to benefit from the wealth in areas that remain controversial. Of course, the reality is that China, as a superpower, will  ultimately determine if it will allow us to share the resources from the disputed areas. Hopefully though, President Benigno Aquino III’s current position will at least provide the beginnings of a peaceful resolution of the current dispute.

 

The summit is only the second activity of the Institute since I became its director for the second time this July. I was  also head of the Institute—created because  of the need to focus scholarly activity into alternative approaches or strategies in dealing with Philippine foreign policy questions—from 2004 to 2008. The IILS was established to undertake research and extension functions in international law, comparative law, and international relations, specifically in areas that affect the Philippine interests in the global arena.

 

This Friday at 10 a.m., at the Malcolm Hall of the UP College of Law, the Institute will feature Anwar Ibrahim who will talk on “Rizal, Ninoy and Asian Leadership”. Come early to have a seat.