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!

Disaster Preparedness

Here’s hoping that all our readers were unscathed by the recent rains brought by the Southwest monsoon. Since my family and I live on a small hill, we were otherwise untouched by the rain even if at some point, the strong water somehow found its way into our drainage. But that was nothing compared to the miseries that the rains brought to a whole lot of residents in the metropolis and in the surrounding provinces. It seems that while we have learned to live year in year out with no less than 20 storms per year, we still have a lot to learn in terms of crisis management to minimize the risk for many of our countrymen.

For instance, my good friend Mahar Lagmay has long advocated strong public awareness about potential landslide-prone areas in Metro-Manila. And yet, despite the existence of these scientific data, both local government units and private developers, including the buying public, appear oblivious to the risk attached in developing and residing in these areas.

Elsewhere, despite the repeated flooding arising from clogged esteros and drainages, there does not appear to be any visible improvement in terms of communities preventing their solid waste from finding its way to our estuaries. How many more deaths arising from flooding should we have before our communities realize that while nature may not be controlled, its adverse consequences may be aggravated by our acts?

And yes, there is also the matter of weather forecasting, The problem with this latest rain is that it unleashed more water than typhoon Ondoy and yet, there was no typhoon. Seems to me that even I the absence of a typhoon, there has to be a better way of warning the people about the possible dangers that may be caused by continuous outpour of rain.

One good new behind the recent catastrophe is the state of preparedness of the Philippine media to give the general public up to date reports about what is happening. Kudos to the men and women of the news industry who risked their lives and limbs to provide us with necessary information is responsible for saving a lot of lives and property. Government should take heed that it was the media and not government that harnessed their resources to mitigate the damages of this natural catastrophe. I’m hoping that President Aquino will remember this before making yet another tirade against the media.

But the message is clear: we live in a disaster-prone country. As such, we need to prioritize disaster preparedness as part of our national policy. Every community must draw up its own community preparedness plan to deal with what we know is a certainty — natural calamities — even if we do not know when it will actually strike. Government must likewise give priority in acquiring equipment and other infrastructure to mitigate natural catastrophes. In this regard, perhaps, the Ombudsman should now prioritize the investigation of graft cases involving the procurement of these life-saving equipment, such as rubber boats and the like. Already, we seem to have forgotten that part of the sins of the past administration was the procurement of rubber boats that cannot be used in the metropolis in case of flooding. This is the worst type of corruption since they feed on the misery of the people in times of natural calamities. These cases should be prosecuted with dispatch so that we can teach others, by way of example, that bottom feeders in our society will be punished.

A final point on class cancellations. While I appreciate the dispatch by which local government units have cancelled classes, I am now alarmed at how much time our students have lost in their studies. This is particularly relevant to me since as a teacher myself, I now have to recover a whole week of course work which can only happen if I hold classes on weekends or if we prolong our academic calendar. I’m not suggesting changing the start of the school year from June to September as is the case in the United States for a practical reason: it will be too hot to teach and study in the dry seasons of April and May. But perhaps, what we need to have is more flexibility in terms of prolonging the school calendar to make up for lost days of school owing to inclement weather.

Hence, if we cancelled 10 school days per semester, perhaps, we should have a longer semestral break in October-November so that in case make up classes are required, we could do so during the semestral break. As to the second semester, there will be the summer days to make up for these days. My experience is that make-ups on weekends are not so conducive to learning especially when Saturdays are not enough to make up for lost time. Schools hence should be more flexible in their academic calendars.

Meanwhile, here’s hoping that all of our readers stay safe and warm!

‘Critical date’ and Chinese hegemony

China appears to be applying the law literally. The rule is where there is a dispute to territory, the claimant that can show a superior claim to the same, be it land or water, will be adjudged as having title thereto.

In land territory, the rule is that discovery alone gives rise to an inchoate title that must be perfected through effective occupation. The latter entails submission of evidence that the disputed testimony was subject to the exercise of both sovereignty and jurisdiction. Some evidence recognized by tribunals as proof of effective occupation would include the simple act of hoisting the flag in small and desolate island territories, and such acts as the grant of concessions, appending the disputed territory to a local government unit, and proof that institutions such as the courts or civil register were functioning in the disputed area.

This is why China has recently been attempting to bolster its claim to both the Kalayaan Group of islands and Panatag. Very recently, it created a new municipality, Sansha, that would exercise jurisdiction over the disputed islands in the West Philippine Sea. This is also why it has recently built a structure on yet another disputed island within our Kalayaan group of islands,  the Subi Reef. The order to send a 30 boat armada of Chinese fishermen is also to bolster their claim that the waters have been the subject of acquired fishing rights by its nationals.

But will China’s recent acts actually result in its desired result of bolstering its territorial claims?

Not necessarily

Justice Holmes remarked that the life of the law is not logic; it has been experience. As early as the leading case of  Palmas, an arbitration where the Americans lost Palmas Island to us, the lone arbitrator came out with a judicial technique, the “critical date” which has been adopted by other tribunals. Under this technique, international tribunals resolving territorial disputes will ignore all acts of claimants to territories after  the “critical date”. This date, in turn, is the time when the controversy first arose between the parties. It is the moment in time  when the parties have advanced conflicting claims of title over the disputed territory. It is  when  the parties officially joined the issues albeit out-of-court.

In the Palmas case, the lone arbitrator disregarded evidence offered by the parties after the critical date because human experience tell us that all such evidence would be self-serving. After a controversy has arisen, it is only reasonable for both parties to strengthen—rather than weaken—their respective claims. This is why after all the claimants to Kalayaan publicly advanced their claims to the islands, all of them took steps to bolster their respective claims of effective occupation over the islands.

When is the critical date to the Spratlys?

It would appear to vary depending on which state is making the claim. France claimed the islands in 1933 . This was met with protests from China, Japan, and even Great Britain. All those that protested the claim of France hence articulated their own basis for title to the islands. It would seem that for China and Vietnam, the latter as the successor state of France, the critical date would be 1933. But for the Philippines, the critical date would be in the 1950s after Thomas Cloma claimed discovery over the islands that he described as “res nullius”—belonging to no one. The critical date for both Malaysia and Brunei, since their claims are anchored only on the regime of the continental shelf and the exclusive economic zone under the UNCLOS, would be in 1984, the year when the convention took effect.

Of course it is still important for the Philippines to repeatedly protest all these subsequent acts of effective occupation. Failure to protest may lead to estoppel. The international community recognizes international law as such because it forms part of a normative system.  Here, its normative content is the preservation of international peace and security.  The concept of “critical date” exists precisely to minimize the threat or the actual use of force. Were it not for this technique, claimant countries to disputed territory may resort to shooting whenever a claimant takes steps to bolster its claim after the “critical date.” Because of this technique, claimants are assured that acts that transpired after the controversy may mean nothing in the resolution of the controversy and hence need not result in a gunfight.

I am concerned that many of our countrymen, including those in the media, appear to be agitated with news of what China has been doing lately. Fortunately, we need not lose our cool since all these may be for naught.

Like President Aquino, let’s keep our cool.