ref: Prof. H. Harry L. Roque, Jr
The Philippine government should formally lodge a diplomatic protest with the Japanese government against the statement by Osaka Mayor Tori Hashimoto that the so-called “comfort women” of WWII served a “necessary” role by keeping troops in check. According to this obviously insane Mayor, ” soldiers living with the daily threat of death needed some way to let off steam which was provided by the comfort women system”. There are at least 200,000 women who were made to serve in these comfort stations in Korea, China and the Philippines.
The statement is crass, obscene, and is an attempt to justify a criminal act under international law. Specifically, rape and all forms of degrading and humiliating treatment committed in the context of an armed conflict -have always been illegal under oith customary international law and under the Geneva Conventions. Moreover, since it was publicly made by an elected agent of the Japanese state, the statement is an official pronouncement of the state Japan nonetheless, pursuant to the Articles of State responsibility. These articles, codified in the form of a UN general Assembly resolution, provides that all acts and /or statements by state organs may give rise to attribution to the state
Instead of justifying this war crimes, the Japanese government publicly apologize for this systematic criminal act and pay reparations to their victims.
We are in the process of studying further legal options against the Mayor of Osaka and the Japanese government for this criminal statement.
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.
(I delivered the keynote address entitled “In Awe” during the Second International Humanitarian Law Summit at Malacañang yesterday. I am publishing here excerpts of my address where I explained why I was “in awe”.)
I am awed because not too long ago, civil society — which I belong to, was excluded in the task of disseminating and ensuring compliance with our state obligations under IHL. We do not know exactly why the past GMA administration opted to expel civil society from the National IHL Committee. x x x Whatever the real reasons may have been, what we are certain is that the administration that banned us was the same administration that showered adulation on a war criminal, the Butcher Jovito Palparan who today, has gone on “voluntary disappearance and is now a fugitive from justice. What we also know is the same administration that banned us was the same regime that UN Special Rapporteur Philip Alston condemned for its gross breaches of human
rights law. Specifically, Alston, whom a former Secretary of Justice has referred as a “muchacho” of the UN, confirmed that extralegal killings, even if it is still unsure how many there have been, are
evidence that the Philippines is in breach of its obligation to protect and promote the right to life.xxx
I therefore stand before you today as a member of civil society- triumphant- that in an administration that has received a genuine mandate to govern, we are recognized anew as an invaluable partner of the state in the discharge of its obligations under International Law.
I am awed, too, at how a few years can indeed make the difference.
In 2009, Congress enacted RA 9851 that defined war crimes, crimes against humanity and genocide as being criminal. Furthermore, it is a law that codified the applicability of the exercise of universal
jurisdiction for these crimes, the fact that these prosecutions are not subject to prescription, and the fact that the defense of sovereign immunity, including that of a sitting President, may no longer be invoked as a defense for the prosecution of these crimes. xxx
Almost immediately after assuming office, PNoy did what we all thought would talk two lifetimes to realize: he sent the Rome Statute of the International Criminal Court for concurrence of the Senate, paving the way for our membership to the International Criminal Court. Our membership to the ICC is without a doubt a signal to one and all that the Philippines will no longer allow impunity to persist.
The Philippines further ratified and became a party to the 1977 First Additional Protocol to the Geneva Convention and the Optional Protocol to the Torture Convention. Under the additional protocol, the Philippines now ranks as amongst the countries that have undertaken to insulate civilian populations from the adverse consequences of war. Our ratification of the Optional protocol to the Torture Convention, in turn, had the effect of recognizing the jurisdiction of the Torture Committee, the treaty monitoring body for the Convention Against Torture, and will enable our nationals to file individual complaints with the said Committee when they feel that their rights, as provided in the Convention, are not being promoted and promoted by our government.
Finally, in recognition that enforced disappearance is the ultimate form of torture for its victims – who do not know if they should weep for the loss of their loved ones or still hope that they will be
found — Congress has passed its final version of the anti-enforced disappearance law…This promises to be the first law of its act in the whole of Asia. I am confident that the President will either sign it into law or will allow it to lapse into one.
I stand today before you also in awe with the tremendous challenges ahead of us …our burden to discharge our obligations under the aut dedere aut judicare principle, or that states must investigate and punish those who commit international crimes, can only be discharged if our domestic legal system is able to investigate, prosecute and punish those who will commit war crimes and crimes against humanity.
Already, our experience with the prosecutions of ordinary murders,such as the Ampatuan massacre case, the Doc Gerry Ortega case, the Binayug torture case and the unresolved enforced disappearances of Jonas Burgos, the three Islamic scholars who disappeared in the sterile premises of Terminal 3 of the Naia in January of this year, and even the disappearance of prominent lawyer, Atty. Frank “Joe” Zulueta, underscore a tremendous structural challenge now facing us. And while
we acknowledge that the destruction of our criminal justice system was the handiwork of the past dispensation, the task of governance demand that it is this administration that should now rebuild these damaged institutions.
Let us now build the capacity of the PNP to utilize forensic evidence rather than rely on testimonial evidence. The latter is oftentimes cheap or readily available through resort to torture. Let us demand from the National Prosecution Service a better conviction rate- definitely better than its current 1 percent conviction rate for cases involving extralegal killings as reported in the Pareno report commissioned by the Asia Foundation.
Let us dialogue with the Judiciary and discuss if we should instead adopt the inquisitorial system where it is the judge that gathers the evidence in the resolution of a judicial dispute rather than the current adversarial system where the judge is a passive recipient of evidence adduced by the parties.
Perhaps, the ultimate challenge is to aim for the time when IHL becomes a purely academic field of study in this country. This will only happen when we have achieved a lasting and just peace, when armed conflicts remain part of our history, but no longer a part of and not our daily lives. In sa Allah.
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.
A MOOT WITH REAL VICTIMS
It was a case of make believe mimicking reality. From February 27 to 28, students from five law schools competed in the Philippine rounds of the most prestigious moot competition in the world, the Philip Jessup moot court competition. Simulating oral arguments before the International Court of Justice, students argued both sides of a problem involving the most contentious issues facing international law today.
For instance, given the general prohibition on the use of force which recognizes only two exceptions, those of self- defense and when authorized by the United Nations security Council; should a third exception, based on contemporary state practice, that of intervention on humanitarian grounds- now be recognized? There too was the issue of which government should be recognized by the United Nations and its organs: the regime that exercises effective control overt the territory and the inhabitants of a state, or the government that was democratically elected albeit deposed through a coup de etat but continues to be recognized as being legitimate by an overwhelming number of states. This was the dilemma faced by the international community in dealing with rebel forces in Libya.
But perhaps, what was most relevant to the Philippines was the third issue. Under the problem, several civilians were forcibly made to work in munitions factory during an armed conflict. Long after the war, these individuals attempted to seek reparations from the state that subjected them to forced labor. They initially filed suit against the state in the latter’s court but the same was dismissed on the basis of prescription. They then filed suit in the court of their own states, but their claims too were dismissed on the basis of sovereign immunity from suits. Intervening meanwhile was a decision of a regional human rights court that declared that the state of nationality of the victims must give them recourse under their domestic law and in their domestic courts. This prompted the domestic court of claimant’s nationality to exercise jurisdiction leading to a money judgement against the other state that resorted to forced labor and levying on execution on assets that were non-diplomatic in character.
I was most impressed by the law schools from the provinces that joined the moot court competition for the first time, to wit: Silliman and the University of the Cordillera. These two law schools proved once and for all that international law is no longer the monopoly of Manila law schools. Their students proved to be even more articulate than those coming from the capital. With a little more experience in mooting, I am sure that they will soon represent the country in the world competition held annually in Washington, DC, USA.
Congratulations to my students from UP who were adjudged the winner in the competition. Ironically, the UP team argued the side that maintained that victims of war crimes could no longer recover reparations when their home states had signed a peace treaty that renounced any and all further claims for reparations. This is the position of our government in the real case of Vinuya, the comfort women’s case. Even more ironical is the fact that the Ateneo team, whose alumni include both the Chief Justice and Associate Justice Mariano Del Castillo , argued the side in favor of the comfort women: that the peace pact could not prevail as against the jus cogens norms that forced labor is a war crime and that the state responsible for it should pay reparations. One of the Ateneo coaches told me that the plight of the comfort women, and the fact that the government should espouse their claims was the subject of his thesis. At the back of my mind, I was hoping he will say this to Justice del Castillo or his researcher responsible for the court decision in Vinuya.
I also commend the Philippine Association of Law Schools Deans under the able leadership of its President, Dean,Amado Valdez and its Chairman, Dean Perry Pe, for the impressive manner by which they conducted the national rounds. Special credit should go to Dean Sol Mawis of the Lyceum University Law School who acted as this year’s administrator for the competition. This year’s national rounds was clearly one of the best in the history of Jessup in the Philippines.
Meanwhile, the real life victims of war crimes -deprived of a legal remedy, continue to pray and hope for justice. They have said that the impeachment of Justice del Castillo would be a step towards the right direction
The International Court of Justice recently promulgated a judgment which calls into question both the relevance and function of international law. Unwittingly, it declared that Nazi Germany is entitled to impunity for acts of forced labor that it committed during World War II.
In its February 3, 2012 decision in the case of Germany vs. Italy, the court ruled that the principle of sovereign immunity from suits is a customary norm of international law that cannot be infringed unless waived by the state. This immunity subsists even if the claim against it is for violation of a peremptory norm, referred to as “jus cogens” in international law. It also ruled that state assets are also immune from execution
The case arose because of a series of Italian domestic court decisions awarding civil damages against Germany for forced labor committed during World War II. While Germany has acknowledged that it committed grave breaches of international humanitarian law during the war, it nonetheless insists that claims against it for damages should be brought pursuant to its domestic law authorizing payment of compensation to individuals for these breaches and before German courts. Unfortunately, German courts barred compensation for forced labor for individuals with the status of a Prisoner of War. This is because the Germany insists that under the Geneva Conventions, POWs may be compelled to work by the detaining power.
In a case involving Luigi Ferrini who claimed to have been forcibly deported from Italy to Germany and made to work in a munitions factory, the Italian court ruled that Germany may not invoke state immunity for the commission of an international crime which at the same time, is covered by a jus cogens prohibition. The Court then awarded Ferrini damages and sought to enforce its decision against a real property owned by Germany in Italy. Hence, Germany’s resort to the ICJ.
The ICJ upheld Germany’s claim of immunity by ruling that under customary international law, the rule remains that a state is absolutely immune from suits for acts committed by its military troops in the territory of the forum. Furthermore, it stressed that under customary law, a violation of a jus cogens norm, even if acknowledged, as it was by Germany, cannot result in waiver of state immunity. In both points, the court enumerated a long list of state practice in the form of legislation and court decisions indicating that other than for Italian and Greek judicial decisions, the principle of state immunity as derived from the principle of sovereign equality of states remains to be firmly rooted in international law.
In ruling in the manner that it did, the ICJ applied an already disregarded notion that international law is only about the application of legal rules. In fact, bulk of the Court’s opinion was devoted to an examination of what the law is, assuming perhaps that what is may be divorced from why it is law and what it seeks to accomplish. International law is law only because states accept it as such. While states may have varying reasons why they acknowledge it to be law, the fact remains that like all laws, international law forms part of normative system. It prescribes conduct deemed beneficial to all of humanity and prohibits conducts that are otherwise.
This means that in the application of rules, the Court should have considered what is more beneficial to humanity: the cold application of the principle of sovereign immunity or the primacy of protecting civilian and POWS in times of armed conflict. While it is true that sovereign equality of states is a foundational principle of the law, the same is true also of the principle that that human rights have also ceased to be purely domestic issue.
The fact that the ICJ gave primacy to the principle of sovereign immunity from suits ignores why these rules exist in the first place; that is, to protect the interests of individuals and not the interest of an artificial being that is a state. As some have noted, international law protects for instance, the environment—not because the ocean or the air should be protected as such. We do so ultimately because human beings require clean water and air.
True, the Court expressly said that its ruling does not affect the liability of state agents when they themselves commit egregious acts. But why should there be a distinction? Precisely because a state can only act only though its agent, there should be no distinction hence between suits against the state itself and against its agents.
The Court also engaged in face-saving when it said that its decision is without prejudice to the liability of the German state for the commission of an internationally wrongful act. But what use is this when victims are bereft of a remedy under domestic law? Who will authorize the award of compensation to the victims when current state practice still deny individuals a standing to bring claims under international law? Certainly, similar claims to that of Ferrini’s were rejected by the European Court of Human Rights on jurisdictional grounds.
There is clearly more merit in the lone dissenting opinion written by a former President of the Inter-American Court of Human Rights Judge Antonio Trindande: “The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labor.”