Obama and the future of the UN

(From the Manila Standard Today.com column of Atty. H. Harry L. Roque, Jr. posted on September 19, 2013) http://manilastandardtoday.com/2013/09/19/obama-and-the-future-of-the-un/

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

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

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

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

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

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

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

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

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

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

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

After the ratification, what’s next?

August 30 of this year marks the first anniversary of the Philippines ratification of the Rome Statute of the International Criminal Court. The ICC is the first permanent international tribunal created by treaty to prosecute individuals for war crimes, crimes against humanity, genocide and the crime of aggression. Its objective is simple: to ensure that any individual who commits the most serious crimes against the international community is held accountable for his acts.

Our membership in the ICC became even more important when shortly after ratification, our very own Miriam Defensor-Santiago was elected to be a Judge in the Appellate Chamber of the Court. This is a rare opportunity for a Filipino to be elected to an international Tribunal. Prior to her, only Justice Cesar Bengzon, Justice Florentino Feliciano and Ambassador Lilia Bautista have had this honor.

A year later, what comes after our ratification?

Plenty. The most pressing of which is to make sure that the Philippines comply with its obligations under the Rome statute. In this regard, there are two important tasks ahead: the duty to cooperate and the duty to ensure the principle of complementarity.

The duty to cooperate involves instances when the prosecutor- or the Court itself- requests the assistance of the Philippine government in conducting an investigation or in the trial proper of a case before the Court. While idealists like me always emphasize the normative value of supporting a tribunal that seeks to put an end to impunity, we often gloss over the details of how these normative systems will actually function. For instance, should the prosecutor decide and upon authority of the court’s pre-trial chamber to conduct an investigation here, say against the AFP, the MILF or the NPA, by what legal right will he do so? Perhaps the rulings of our Supreme Court in Angara vs Tanada and in the recent case of Magallona vs Executive Secretary could shed some light. In both these cases, the Court ruled that our duty to comply with treaty obligations has the force and effect of law. Therefore, the legal basis for the prosecutor to conduct an investigation or of the Court sitting in the Philippines is by reason of the treaty itself.

But should a law or an amendment to our Constitution be required? Since the power and manner by which our own Prosecutors conduct their preliminary investigation is provided by law, shouldn’t this law be required? Evelyn Serrano of the Coalition for the International Criminal Court pointed out that different state parties have passed so-called cooperation statutes. While conceding that this is in fact the ideal solution, my apprehension though is what if the Prosecutor wants to investigate now that there is still no such law? Does that mean the absence of law will prevent him from conducting his official task? And what about the matter of the Court sitting in Philippines territory? The Constitution is clear: judicial power shall vest in the Supreme Court and on all other inferior courts that may be provided by law. Is a constitutional amendment required to enable the ICC to sit here? Probably not . But certainly, our Supreme Court may have to issue some rule that would enable the ICC to do so.

There too is the matter of having to ratify the separate Convention, the Agreement on the Privileges and Immunities of the International Criminal Court. This will accord the Judges of the court, the Prosecutor and all of its officials such immunities that are necessary to freely discharge their functions without fear of retaliation from a state that wish to accord impunity to any of its nationals. The agreement provides that all officials and employees of the ICC should be accorded functional immunities of the type enjoyed by the United Nations and its specialized agencies.

The duty to cooperate will also compel the Philippines to be world class in such matters as according protection to victims and witnesses. Already, the duty to cooperate will compel us to amend our own Witness Protection Program to provide protection not just to witnesses, but to victims as well. It will also perhaps compel us to recognize that victims of crimes have rights under human rights law, notably, the right to reparations, and are not just mere objects that enable the state to prosecute a crime. Furthermore, I am personally hopeful that our ratification of the Rome statute that recognizes that the duty to provide reparations to victims is a duty of the international community and not just the criminal offenders -will also lead to a change in our local perspective that this duty is one owed only by the accused to be paid at the end of a very long trial.

Anent the duty to enact domestic laws that would implement the principle of complementarity, RA 9851 largely provides for the legal basis for our courts to exercise primary jurisdiction for crimes cognizable by the ICC. But as Dean Merlin Magallona has said, there is still that substantial challenge of amending further our domestic law to ensure that identical crimes are punished under our domestic law and by the ICC.

A year later, it is clear that we have a distance to go before full compliance with our state obligations under the Rome Statute. This notwithstanding, we have certainly beaten the rest of Asia since at least, we have already ratified the Statute. I am confident that the rest will follow soon.

ICC: The road ahead

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

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

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

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

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

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

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

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

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.

Meeting of two presidents

I was witness to a historic meeting between two presidents: President Noynoy Aquino and Judge Sang-Hyun Song, President of the International Criminal Court, last Monday at Malacañang’s “yellow room”.
Since the year 2000, the Philippines, under then-President Joseph Estrada, signed the Rome Statute of the International Criminal Court. This is the first permanent international tribunal created to prosecute the most serious crimes that can be committed against the international community: war crimes, crimes against humanity and genocide.

The problem was that under former President Gloria Arroyo, the country shied away from membership in the court for various reasons. The most important among which were the opposition of the United States to the Court, and the Mrs. Arroyo’s own fear of being prosecuted before the Court.

“You do not even have to persuade me to join the Court”, a beaming P-Noy told Judge Song. “In fact, I have already sent the Rome Statute to our Senate for its concurrence.”

Under our constitution, no treaty may become valid and binding unless it is concurred in by two-thirds of all the members of the Senate. As early as 2005, we sought to effect that transmittal even through a petition that we filed in the Supreme Court in the case of Pimentel versus Executive Secretary. But with one signature, P-Noy achieved what we have been trying to do for nine long years: the transmittal of the statute to the Senate preparatory to our membership in the ICC.

Song, as diplomats often do, read from a prepared statement. He spoke about mankind’s painful experience with impunity and the need to ensure that individuals who may commit the most serious crimes should be brought to justice. He spoke about the 114 countries that have already become members of the Court, and his wish to see the Philippine as its newest member.

On hindsight, while Song’s statement was both officious and moving, it was not even necessary. The President, himself a victim of the extra-legal killing of his father, committed to make such killings a crime against humanity as part of state policy. He recognizes the need to effect an end to impunity through penology. Indeed, President Aquino needed no persuasion at all.


With the President was his entire legal staff: the Justice Secretary, the Solicitor General, and the Presidential Legal Counsel. There too was the Defense Secretary and some officials from the Department of Foreign Affairs. Before leaving the Palace, we were told by the President’s protocol officer, Ambassador Miguel Perez Rubio, that the President was leaving for Indonesia in about six hours and was taking a budget airline at that.

That, too, was historical. It was the first time for a sitting Philippine president to take a budget airline for an official trip abroad. I was so happy to hear this and could not help comparing the humility and prudence of P-Noy to the extravagance of his predecessor who spared no expense in her foreign trips. It was yet another reason to be proud of P-Noy.

Prior to the meeting with P Noy, President Song was in the Senate where he was assured by Senator Loren Legarda, chairman of the Senate committee on foreign affairs, of the chamber’s prompt action on the Rome Statute. She promised that the Senate concurrence would come before the Senate goes on recess on 9 June of this year.

Later in the day, the Philippine Coalition for the International Criminal Court and Centerlaw, a civil society organization which I chair, tendered a dinner to honor President Song at the Club Filipino. As host and moderator, I recalled how five years ago, Judge Song came on an unofficial meeting to lobby for our membership in the ICC.

Because his first visit was a purely civil society initiative, I recalled, to the audience’s delight, how we billeted Judge Song then in a motel in Quezon City. What a difference an official visit could make; this time around, he was billeted at one of our posh hotels.

Judge Song then spent the following morning addressing a standing-room-only crowd at the Malcolm Theater of the UP College of Law. He left yesterday afternoon for Malaysia. He left a community of admirers and a country hopeful that the ICC could end impunity in our land.

While saying goodbye to Judge Song in Diliman, the House committee on justice made history when they found probable cause for impeachment against Ombudsman Merceditas Gutierrez. Almost at the same time, the festive mood at the UP College of Law was shattered by the news that the Supreme Court had voted to admonish 36 of my colleagues for their statement “Restoring Integrity”, an official statement of the faculty of the UP College of Law deploring an act of plagiarism at the Supreme Court. Then I heard a radio report that Rep. Rodolfo Fariñas of Ilocos Norte was inquiring from the secretary of the House committee on justice about the status of the impeachment complaint against Justice Mariano Del Castillo.

One battle at a time. That was what I told myself before succumbing to a long and well-deserved sleep.