Lessons from Boston


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Lessons from Boston.

Copadoccia, Turkey—I was in Boston with my family just two weeks ago. I thought it was important for my two children to visit the city and appreciate its anti-colonial heritage. The US was not always its own state. It too had to struggle for its independence, much in the same way that we did against the Spaniards and ironically, against them.

Like many tourists, we did the freedom trail, so-called because it allows visitors to visit historical landmarks of the American Revolution. This includes the house of Paul Revere who warned the

American militias of the upcoming invasion of the British, as well as Faneuil Hall, which was literally a meeting place where speakers like Samuel Adams and James Otis advocated freedom from Great Britain. It also includes a recreated colonial vessel where the tea party is reenacted to remind the American youth of today of the trigger that established an independent American state.

While it was unfortunate that after triggering a liberal tradition that is today acknowledged as the non-derogable right to self-determination— a people’s right to choose their political status which includes the right to be independent —the American people would later be colonials themselves albeit over only colony, the Philippines. But this sad fact notwithstanding, Boston’s contribution

to modern-day democracy cannot be denied. It also includes a written constitution, which guarantees rights of every human being as being inalienable.

This must have been why the deranged madmen behind the bombings at the Boston marathon targeted the city. Their goal was not only to inflict panic in the mind of the general public but also to send the grim message that America’s cradle of democracy is under attack.

It is gratifying though that on my last day in the United States, the general impression was that Boston was not a city to be cowed. After the dead have been mourned and after the sick have been attended to, the city seems to be up and about eagerly picking up the pieces. The message that the brave survivors of this terroristic attack were sending the world was that while they were terrified, they will rise again. And that appears to be what they have done.

Terrorism, of course, be it in Boston, in Syria, or in Palestine should be condemned in the strongest manner possible. Even in times of war, civilians are accorded protection precisely because the civilian populations ought to be spared from the adverse consequences of all kinds of warfare. This is why any act that tends to spread fear or panic in the mind of the public is condemned, much in the same way that targeting civilians is made criminal in times of armed conflict.

Human beings possess rights that are inalienable. Parts of these are the non-derogable right to life and the right to personal security. Both war crimes and terroristic acts infringe on and violate these rights.

Be that as it may, there are important lessons to be learned from the Boston bombings. Primary among these is the importance of a police force that can actually investigate acts of terrorism and apprehend their suspected perpetrators. It did not take long for the Boston police to process forensics evidence, identity the suspects and actually apprehend them. In the Philippines, our police agents’, until very recently, are told to identify first the suspects before processing the evidence. And while in Boston, it was physical evidence that proved effective in identifying the perpetrators of the crime; in our country, the police, either because of lack of capacity or downright laziness, will rely almost wholly on testimonial evidence. The problem with this approach is that testimonial evidence is either cheap, or may be the result of police short-cuts, such as torture.

How we envy the people of Boston. In less than a week, the perpetrators of the bombings were identified and apprehended, although one of them was killed in the process. In the Philippines, a student of mine, who is now a lawyer, is still awaiting for someone to be charged for the brutal murder of her father, a UP graduate editor and publisher of a local paper in Pagadian City. Her late father and her mother, also murdered some nine years after her father, will both be unable to attend her oath-taking as a lawyer. Likewise, the family of Navy Ensign Philip Pestano is still awaiting action form the Department of Justice in connection with the murder of their son.

Likewise, the Barrameda and the Ortega families can only dream of justice for the death of their loved ones. And let’s not even talk about the victims of the Maguindanao massacre, many of whom have already sunk into despair.

So the lesson is clear: terrorism and lawlessness can strike anywhere. But in civilized societies, the pillars of the criminal justice system: the police, the prosecutors, the courts, and the community-

will ensure that lawless elements will be investigated, prosecuted and punished for their acts.

I wonder when we will finally have a civilized Philippine society.

Malaysia’s crimes against humanity?


 

It’s increasingly becoming clear that Malaysian authorities have no regard whatsoever for their duty under international human rights law to protect and promote the right to life of the Filipinos in Sabah, and their right to a judicial determination of guilt before the imposition of the death penalty. To date, the death toll has reached 63, while the number of individuals who have been apprehended on mere suspicions that they are sympathizers of the Sultanate of Sulu has reached almost 100. And yet, there does not appear to be any sign that Malaysian authorities will even slow down in their resolve to crack down on the historical owners of Sabah.

The little good news that we have is at long last, the Philippine government has sent a diplomatic note to Kuala Lampur asking Malaysian authorities to “clarify” reports about human rights violations. Media has been reporting wide- scale violations of human rights violations against Filipino nationals in Sabah including resort to pre-trial detentions, torture, and inhumane treatment. Even without dwelling on the Philippine title to Sabah, the Philippines should never abdicate its obligations to its nationals when reports of wide-scale violation of their rights become rampant. Hence it was correct for our authorities to send this note verbale.

But Malaysia appears hell bent on clamping down on the rights of all Filipinos in Sabah, whether or not they are involved in the current standoff. Even before this latest Sabah incursion, Malaysia has been afflicted with extreme paranoia that Filipinos may physically constitute a majority of the population in Sabah. This has led to regular mass deportations of Filipinos from Sabah, almost all of which have been characterized as inhumane. One incident stands out in terms of barbarity. In 2002, when Malaysia deported no less than 62,000 Filipinos from Sabah, the country was shocked to know that in addition to the inhumane nature of the deportations, a Malaysian guard added salt to open wounds by raping a 13-year-old girl in one of the Malaysian immigration facilities. That incident has all been forgotten.

But Malaysia better think twice before it proceeds to commit further criminal acts under international law. While there is still a dispute on whether the current stand-off is now governed by international humanitarian law—the 200 individuals sent by the sultanate of Sulu to reclaim Sabah are not state agents — international law still penalizes acts which are systematic or widespread attacks against civilians. This is known as crimes against humanity. Unlike war crimes, crimes against humanity do not require a nexus with armed conflicts. It suffices that the inhumane acts, be it deportation, arrest, or inhumane treatment, be widespread or systematic.

While murder remains the most frequent manner by which this crime may be committed, it is by no means the only way to commit it. Under international law, it may also be committed, among others, through extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, persecution against an identifiable group on national (against Filipinos, for instance) or other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury. The list appears tailor made for the inhumane acts that Malaysian authorities have been committing against our countrymen in Sabah.

The beauty of international criminal law is that unlike human rights law, it utilizes penology as a means of enforcement.  This means that while the enforcement of human rights is through a shaming machinery where countries in breach of their human rights obligations are shamed into compliance either through the periodic reviews of the UN Human Rights Council or the treaty monitoring bodies, international criminal law actually provides for imprisonment for those who will breach the law. And unlike domestic legal systems, these international crimes are not subject to prescription, may be tried by any court regardless of where they may have been committed, and does not recognize sovereign immunity as a defense. Simply put, Malaysian authorities who committed these crimes against our nationals will end up in jail. If not in Malaysia, then in the Philippines, at the Hague, or in the territory of any state that is duty-bound to prosecute them for their acts.

Interestingly enough, no less than Malaysian Prime Minister Najib Razak may incur liability for these crimes if it is proven that he knew or should have known about these crimes being committed and he did nothing to prevent them or to investigate, prosecute and punish the perpetrators of these crimes. This is known as Superior Responsibility. It may not be today, it may not be in Malaysia, but surely sometime in the future and somewhere in this planet, he will be held responsible for these crimes on the basis of superior responsibility. This was the lesson that the Nazis learned in Nuremberg. This too was the lesson learned by Saddam Hussein, Slobodan Milosevic, Charles Taylor and Tomoyuki Yamashita.

Najib should stop these crimes lest he join the roster of the infamous.

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: 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.