Primer on ICC

For Hope& Human Dignity A Primer on the International Criminal Court for the Security Sector

Philippine Coalition for the International Criminal Court

Copyright © 2008 Philippine Coalition for the International Criminal Court All or portions of this resource book may be reproduced, stored in retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, for use in training provided that the source is acknowledged.

ISBN 978-971-93746-1-9

PHILIPPINE COALITION FOR THE INTERNATIONAL CRIMINAL COURT Room 100-C Philippine Social Science Center (PSSC) Commonwealth Avenue, Diliman, Quezon City, Philippines 1101 Phone: 63-2-4566196 Phone: Telefax: 63-2-9267882 Telefax: Email: [email protected] Email: [email protected] Website: www.iccphil.org Website:

Editorial Editor ial Team Team Atty. Josel Mostajo Atty. Byron Bocar Evelyn Balais-Serrano Dr. Aurora Parong Arvie Villena, Illustrator Amy C. Tejada, Design & Layout Rebecca E. Lozada, Managing Editor

This publication was made possible with the support of the Delegation of the European Commission to the Philippines.

Copyright © 2008 Philippine Coalition for the International Criminal Court All or portions of this resource book may be reproduced, stored in retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, for use in training provided that the source is acknowledged.

ISBN 978-971-93746-1-9

PHILIPPINE COALITION FOR THE INTERNATIONAL CRIMINAL COURT Room 100-C Philippine Social Science Center (PSSC) Commonwealth Avenue, Diliman, Quezon City, Philippines 1101 Phone: 63-2-4566196 Phone: Telefax: 63-2-9267882 Telefax: Email: [email protected] Email: [email protected] Website: www.iccphil.org Website:

Editorial Editor ial Team Team Atty. Josel Mostajo Atty. Byron Bocar Evelyn Balais-Serrano Dr. Aurora Parong Arvie Villena, Illustrator Amy C. Tejada, Design & Layout Rebecca E. Lozada, Managing Editor

This publication was made possible with the support of the Delegation of the European Commission to the Philippines.

FOREWORD

Since the year 2000, the Philippine Coalition for the International Criminal Court has been in conversation with military and police officers on the merits of Philippine ratification and implementation of the Rome Statute of the International Criminal Court (ICC). In the early years, we were often told that government was still studying the implications of supporting the ICC. In more recent years, we were glad to take more direct questions: Will we be ceding our sovereignty to a foreign court? Will ratification make the military officers vulnerable to harassment suits? How can we support the Court when we are fighting internal wars on several fronts? This primer is published to continue our conversation with the security sector and to address the concerns and questions we have heard in meetings and dialogues. While peace remains elusive, the question really is, can we afford not to ratify and implement the Rome Statute? We need to be a party to the most advanced mechanism for global justice precisely because of a continuing history of unresolved internal conflicts and turmoil in our land as well as many parts of the world where millions of Filipinos are based as overseas workers and deployed as peacekeepers. Until parties to the peace talks, in a broadened constituency framework, truly address the social and political maladies that gave rise to internal conflicts, there is little chance at a cessation of hostilities and an end to the suffering in militarized areas. Thus, what can be done should be done to bring sanity even to the battlefields. As we continue in our conversation with the security sector, we are gratified to see efforts in this direction. At the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances–Searching for Solutions convened by the Philippine Supreme Court on 16-17 July 2007, we noted the paper presented by the Department of National Defense-Armed Forces of the Philippines: Initiatives in Support of Human Rights and International Humanitarian Law. (See annex on page 29)

3

At the same time, the judicial summit was called because of the alarming spate of extra-judicial killings and enforced disappearances over the past years. Before the Philippine human rights situation worsens to proportions approximating crimes against humanity, it is best to ratify the ICC as a preventive measure and to develop resources through the ICC expertise in promoting an environment of accountability. Upholding the rule of law is to the interest of combatants, be they state or non-state combatants. Those bearing arms do so to champion and defend a cause they believe in and will die for. It is a perversion of their ideals to protect rogue combatants and tolerate impunity. The security sector itself is best protected by mechanisms of accountability, including the international justice system brought about by the ICC. We look forward to the day when the security sector will be part of the broader constituency for the eventual ratification and implementation of the Rome Statute by the Philippines.

LORETA ANN P. ROSALES Co-chair Philippine Coalition for the International Criminal Court

4

The International Criminal Court and Institutional Protection for Human Dignity1 By DR. RAUL PANGALANGAN

When the Nuremberg Tribunal was created after the Second World War, the United States of America sent as its chief prosecutor no less than a sitting Justice of the US Supreme Court, Robert Jackson, and he called the tribunal the “highest tribute that power every paid to reason.” Today, we have evolved institutions to protect human dignity even under conditions of armed conflict, but they require a sea change in thinking. And that is why we, on the part of the Philippine campaign, are very happy that we have enlisted your support as parliamentarians and as statesmen in this struggle to campaign for the ratification. It has been said by the ancients: “War is the vanishing point of law.” “Before arms, the laws fall silent.” Without international law, armed conflicts were seen as a purely Darwinian struggle, the survival of the fittest, and its human casualties were seen solely as the inevitable, almost natural, cost of social change. Today, the gains are three-fold and it is my hope that we can share these three-fold gains as we campaign for the Rome Statute: First, we de-politicize the enforcement of norms and place the campaign for human dignity squarely on legal footing. We focus on the individual, not on the nation or the nation’s cause. Second, we internationalize the burden of prosecuting away from the reach of partisan national groups. We shift them to international bodies beyond reach of the power of these groups. 1

Excerpts from the paper presented by Dr. Raul Pangalangan, co-chair of the Philippine Coalition for the ICC and former dean of the Coll ege of Law, University of the Philippines, at the Asi an Parliamentarians’ Consultation on the Universality of the International Criminal Court, 15-16 August 2006, Manila, Philippines

5

Third, we also equalize the burdens between the State and non-State actors. I will begin with the first. The ICC provides legal and non-political standards by which to manage armed conflicts. It used to be that war–and the ensuing bloodshed and human agony–was justified by the cause people were fighting for, what we now call the “just war” theory. Today we have set aside the “just war” theory, we do not ask who has the superior cause. We do not inquire into the causes of war, we look merely into the conduct of hostilities, and we aim merely to ensure that, if war were inevitable, both sides minimize the human costs and respect human dignity. The ICC will also de-politicize the prosecution of military abuses and shift these proceedings purely to legal standards, to judge the question of responsibility purely on objective ascertainable standards that determine what is permissible and what is not. It avoids the guesswork of politics, limits the biases that taint partisan judgment. Hopefully also, it will disengage the question of international justice from cultural biases. Recall that before the International Military Tribunal for the Far East, the Tokyo proceedings, the cases of the comfort women were actually reported to the Tokyo prosecutor, but the prosecutor ignored the reports altogether as typically an Asian practice of having on-site military brothels. In fact, decades later, when we all found out about the anguish of these victims, the United Nations (UN) itself continued to debate on what to call the agony of the comfort women. The proper legal term was slavery, but the victims said that “slavery” would ignore the very intimate and sexual nature of the offense and eventually the UN rapporteur settled for the All the officers and term “military sexual slavery.”

combatants are held

Second, the ICC will enforce the criminal responsibility of individuals. It will not focus on the open-ended question of state responsibility and shifts these questions to political agencies. And finally, it provides a framework for post-conflict and transition justice. By focusing on the individual, the ICC is able to avoid the more ideological debate on whose cause is right and whose cause is wrong. 6 For Hope & Human Dignity

responsible whether or not they win or lose in the conflict, provided it is proved that they committed prohibited acts.

Also, ad hoc tribunals do not offer sufficient assurance that those who commit atrocities will face individual criminal responsibility afterwards. Thus, it does not matter that the individual belongs to the victorious party. All the officers and combatants are held responsible whether or not they win or lose in the conflict, provided it is proved that they committed prohibited acts. Third, the ICC provides a neutral international mechanism by which to constrain the conduct of war. It criminalizes the grave breaches banned by international humanitarian law. It shifts the punishment of grave breaches away from bilateral commitments between parties. For me, this is the most important part. They are punished by a tribunal that is both international and standing. International, not domestic; standing, not ad hoc. This two-fold combination is very important. Notice that the past international criminal tribunals –Nuremberg, Tokyo, Yugoslavia, and Rwanda–were all ad hoc tribunals created for a specific dispute. Here in Asia, we have the Khmer Rouge Tribunal in Cambodia and the tribunals in East Timor. These were all ad hoc in character. The next alternative is standing domestic tribunals through universal criminal jurisdiction. The primary example is the attempt to try Augusto Pinochet of Chile before Spanish courts. The third are truth commissions. The fourth are standing international tribunals like the ICC. In the past, the ad hoc tribunals have been criticized for their lack of legitimacy. Nuremberg as the victors’ justice over the vanquished, as revenge in judicial garb. In fact, the most famous trial in the Philippines was that of General Tomoyuki Yamashita. And Yamashita did not even present a defense for the rape of Manila, the mass killing and rape committed during the liberation of Manila. Yamashita simply said that he was prepared to answer for all the atrocities that the soldiers under his command committed. Moreover, the world also has been erratic in responding to tragedies: the world looked the other way when Pol Pot and the Khmer Rouge decimated the Cambodian people. In fact, even after the world found out about the genocide, the Khmer Rouge continued to represent Cambodia before the United Nations. ...Personally I doubt if the UN would have created the Rwanda Tribunal had there not been a Yugoslavian Tribunal. The other difficulty with ad hoc tribunals, and here I am using the Khmer Rouge Tribunal as an example, is that it is custom-tailored to meet with the A Primer on the International Criminal Court for the Security Sector 7

politics of both the UN and the national jurisdiction and also the domestic politics of Cambodia. That is why the Khmer Rouge Tribunal was created under the prodding of the UN. The guarantees of independence and fairness are secured the UN-nominated judges, in effect, foreign judges, but the irony of all these are conducted by the power of the Cambodian Parliament under Cambodian law. We call these the hybrid tribunals. And why?–and I hope you do not mind my saying this –because the UN did not trust local justice and this is a problem, by the way, not unique to Cambodia. It actually applies even to the Philippines. Canada refused to extradite an accused killer to the Philippines because the Canadian courts did not trust our Philippine justice. We have also similar problems in the East Timor struggle for selfdetermination. It entailed the creation of ad hoc tribunals. The Serious Crimes Unit was created by the UN Transitional Authority for East Timor. The ad hoc Human Rights Court in Jakarta was created as a compromise between the UN and Indonesia. There continues to be problems in enforcing its jurisdiction over the accused. My last point is this: The International Criminal Court allows the international regulation of armed conflict without undermining State’s sovereignty. States have often refused international oversight saying that human rights within their borders are solely within the scope of their national sovereignty. The advantage with the ICC is that we get to apply international responsibility even before the conflict has reached the level of a full-blown international conflict. The ICC Statute reflects the distinction under international humanitarian law (IHL) between internal armed conflict and international armed conflict. It adopts a distinction under IHL between internal armed conflict and mere internal disturbances. It also allows the punishment of acts despite the declarations of a state of national emergency. It avoids the clever move of certain States to draft their declarations of national emergency. Furthermore, the Court equalizes the burdens in cases of internal armed conflict, between the State and non-State actors. Because then, obligations are imposed equally upon the State’s armed forces and the rebel forces. When I gave one briefing for the Cabinet, for the Philippine Cabinet for the ratification of the Rome Statute, I noticed that the chief hesitation of our government was not just legal. I could give them all the assurances that the tribunal was perfectly okay. It will respect our sovereignty, it will not get us any more trouble than we already were in… I think they were concerned about 8 For Hope & Human Dignity

the press, and how charges before the ICC might be discussed as if they were already formal indictments. Of course, I had to give very practical assurances about the independence of the prosecutor and of the court itself. But here I have the luxury of being a bit more academic and philosophical. Journalism is literature in a hurry, and law is pedestrian philosophy–instant, over-thecounter and off-the-rack. But when they work together and carry out their work through or around international criminal tribunals, they offer an advantage. Through them, the victims tell their story and help the world remember. And therefore as I began, I shall close with words from Robert Jackson:

The Court equalizes the burdens in cases of internal armed conflict, between the State and non-State actors…Obligations are imposed equally upon the State’s armed forces and the rebel forces.

“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”

A Primer on the International Criminal Court for the Security Sector 9

Primer on the International Criminal Court for the Security Sector

What is the International Criminal Court? The International Criminal Court (ICC) is the first permanent and independent international judicial body established pursuant to the Rome Statute adopted on July 17, 1998 by 120 states in an international conference held in Rome, Italy. With 139 signatures and the required 60 ratifications, it entered into force on July 1, 2002. It is the first treaty based court governed by an Assembly of States Parties comprised of states that have ratified it. The seat of the ICC is in The Hague, the Netherlands.

How did the ICC come about? For more than 50 years since the post-war Nuremberg and Tokyo Trials, states have aspired to bring to justice those responsible for millions of victims of genocide, crimes against humanity and war crimes. Shortly after the United Nations (UN) was founded, the newly formed International Law Commission (ILC) was mandated to codify the Nuremberg Principles and prepared a draft statute to create an international criminal court. Progress on this, however, was paralyzed for decades by the divisions during the Cold War. By the early 1990s, a thawing in international relations allowed the creation of ad hoc international tribunals in response to atrocities committed in Rwanda and the former Yugoslavia. This and other global developments served to resurrect discussions of a permanent international criminal court. Acting on a proposal by the tiny state of Trinidad and Tobago, the UN in 1995 started discussions on the draft statute prepared by the ILC. For the next two years, the United Nations held six Preparatory Commission meetings in New York.

11

On July 1, 1998, at the Rome Conference, 120 states voted to adopt the final text, 21 abstained and 7 voted against, among them the USA, Israel, Japan, China and India.

What is the jurisdiction of the ICC? The ICC has jurisdiction over the most serious crimes committed by individuals: genocide, crimes against humanity, war crimes and aggression. The crime of aggression will be dealt with by the Court when the States Parties have agreed on its definition and elements and the conditions under which the Court will exercise jurisdiction. The Court has jurisdiction only with respect to crimes committed after the entry into force of the Statute as the Statute has no retroactive effect. In cases where the crime or complaint was referred by a State or initiated by the Prosecutor, the ICC may exercise its jurisdiction if one or more of the following states are parties to the Statute or have accepted the ICC’s jurisdiction: (1) The State on the territory of which the alleged crime was committed; (2) The State of which the person accused of the crimes is a national. Those States which did not sign or ratify the Statute, although not under the Court’s jurisdiction, may accept the jurisdiction of the ICC and cooperate in the implementation of the Statute. Under Article 13 of the Rome Statute, the United Nations Security Council may also refer a situation to the Prosecutor, whether or not the accused is a national of a state party or irrespective of where the crime is committed.

What are the obligations of States when they join the ICC? Under the Rome Statute, States Parties have two basic obligations: complementarity and full cooperation.

Complementarity The ICC is unique in the sense that it should act based on the principle of complementarity. The ICC holds the state party primarily responsible for the investigation and prosecution of any crime committed within its jurisdiction. 12 For Hope & Human Dignity

This means that if there is a national proceeding or prosecution of an accused person of the crimes that may come within the ambit of the ICC’s jurisdiction, the ICC will consider such communication or referral inadmissible, being a court of last resort. This principle will not make the ICC intrusive into national jurisdictions where the rule of law and the system of justice is working well. In this way, no nuisance suits will reach the court, since the Office of the Prosecutor will evaluate whether such complaint is valid or not, and whether or not the allegations in the communications are being investigated by the state concerned. However, the Prosecutor may investigate if the State concerned is unwilling and unable to genuinely carry out the investigation or prosecution. If the national proceeding is also being done to shield the person from criminal responsibility, the ICC may proceed to investigate and prosecute. Furthermore, if the national proceeding is a sham, or is being done way below the international standards of justice, then the ICC may still prosecute the crimes, as determined by the Pre-Trial Chambers upon the application of the Office of the Prosecutor.

Full Cooperation Once the Court has determined that it may exercise jurisdiction in accordance with the principle of complementarity, states parties agree under Article 86 to “cooperate fully with the Court in the investigation and prosecution of crimes within the jurisdiction of the Court.” Therefore, they should ensure that the ICC Prosecutor and the defense can conduct effective investigation in their jurisdiction, that their courts and other authorities provide full cooperation in obtaining documents, locating and seizing assets of the accused conducting searches and seizures of evidence, locating and protecting witnesses and arresting and surrendering persons accused of crimes in the Court. States should also cooperate with the Court in enforcing sentences by making detention facilities available to convicted persons.

What are the crimes within the jurisdiction of the ICC? Genocide The crime of genocide is any of the acts enumerated below, when committed with intent to destroy, in whole or in part, national, ethnical, racial or religious groups: a. Killing of members of the group; b. Causing serious bodily injury or mental harm to members of the group;


c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. Imposing measures intended to prevent births within the group; and e. Forcibly transferring children of the group to another group.

Crimes against humanity The following acts constitute crimes against humanity, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: a. Murder; b. Extermination; c. Enslavement; d. Deportation or forcible transfer of population; e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; f. Torture; g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; h. Persecution against any identifiable group or collectivity on political, or racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act or any crime within the jurisdiction of the ICC; i. Enforced disappearance of persons; j. The crime of apartheid; and k. Other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.

War crimes The ICC will have jurisdiction over war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. It includes grave breaches of the Geneva Conventions namely any acts against persons or property protected under the Geneva Conventions, such as: 14 For Hope & Human Dignity

a. b. c. d. e. f. g. h.

Willful killing; Torture or inhuman treatment, including biological experiments; Willfully causing great suffering, or serious injury to body or health; Extensive destruction and appropriation of property, not justified by military necessity carried out unlawfully and wantonly; Compelling a prisoner of war or other protected person to serve in the forces of hostile power; Willfully depriving prisoner of war or other protected person of the rights of fair and regular trial; Unlawful deportation or transfer or unlawful confinement; and, Taking of hostages.

War crimes also include serious violations of the laws and customs applicable in international armed conflict. It includes crimes committed in an armed conflict not of an international character. War crimes may also be committed in armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups, or between such groups. However, it does not include any situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, or other acts of similar nature. It is also provided in the Rome Statute that nothing in the provisions on internal armed conflict will affect the responsibility of a State to maintain or re-establish law and order in the State, or to defend the unity and territorial integrity of the State, by all legitimate means.

What are the crimes that may come within the jurisdiction of the ICC in internal armed conflicts? The ICC has jurisdiction over crimes committed in an armed conflict not of an international character, in particular, for serious violations of the provisions of Article 3 common to the four Geneva Conventions, when such acts are committed against persons taking no active part in the hostilities namely: • Violence to life and person, murder, mutilation, cruel treatment and torture; • Committing outrages upon personal dignity, in particular humiliating and degrading treatment; • Taking of hostages; • Passing sentence and carrying out executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees generally recognized as indispensable. A Primer on the International Criminal Court for the Security Sector 15

It has also jurisdiction to try serious violations of international humanitarian law like intentional attacks directed against civilians not taking direct part in hostilities, protected persons and structures, and other serious violations of Protocol II of the Geneva Conventions.

Are extra-judicial killings, torture and enforced disappearances crimes under the jurisdiction of the ICC? Yes. These crimes are within the jurisdiction of the ICC and considered as crimes against humanity if they are committed as part of a widespread or systematic attack directed against any civilian population. If committed in the context of an armed conflict, these crimes are considered war crimes. Again, it should be emphasized that under the Rome Statute, a state party has the primary obligation to prosecute and only in the absence of any genuine prosecution or investigation can the ICC come in to investigate a situation.

Is there prescription or any statute of limitation, which will preclude the ICC from exercising jurisdiction over crimes which are within its jurisdiction? No. The crimes within the jurisdiction of the ICC shall not be subject to any statute of limitations. Even with the lapse of time, the ICC can still exercise jurisdiction.

What laws will be applied by the ICC in the prosecution and trial of cases? The ICC in prosecuting and adjudicating cases will apply the following laws: 1. The Rome Statute, Elements of Crimes and its Rules of Procedure and Evidence; 2. In appropriate cases, applicable treaties and the principles and rules of international law, including the established principles of international law of armed conflict; 3. General principles of law derived by the ICC from national laws of the legal systems of the world including, in appropriate cases, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the Rome Statute and with international law and internationally recognized norms and standards.

16 For Hope & Human Dignity

Who can be held responsible and be prosecuted in the International Criminal Court? The ICC has jurisdiction only on individuals who are directly responsible for the commission of the crime and those who may be liable for the crimes by aiding and abetting, and those who assist in the commission of the crime. It should be noted that the ICC, as much as possible, will only prosecute those who are most responsible for the crimes like the leaders who directed the commission of the crimes within the ICC’s jurisdiction. Article 28 of the Rome Statute states that “a military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces,” where he/she “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes,” and he/she “failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”

Who can file complaints before the Court? Anyone who is a victim of the crimes within the court’s jurisdiction can write and send communication to the Office of the Prosecutor of the ICC in The Hague. Governments, international organizations, non-governmental organizations can also send communications to the Prosecutor for his/her information. The Office of the Prosecutor will determine whether the contents of the communications comes within the jurisdiction of the Court and whether or not there are grounds to investigate based on the evidence presented, and decide to open a new “situation”. If the Prosecutor decides to open a new situation, investigation will follow. The Court will set up a team to handle the investigation and will open a local office to facilitate investigation on the ground, bringing together A Primer on the International Criminal Court for the Security Sector 17

investigators and experts to gather and validate evidence for the filing of indictments.

Can police or military personnel be held liable for crimes committed in the Philippines? Yes. If the crimes committed by an individual, whether police/military personnel or not, come within the purview of the Court’s jurisdiction, he or she may be charged by the Prosecutor of the Court. Note that it is not only the crimes which may be considered in the evaluation whether or not a person can be brought before the Court. There are other factors such as, but not limited to, the national proceedings against such person and whether or not the crime is of such gravity to justify further action by the Court. Only the person most responsible for committing and ordering the widespread commission of the crimes is brought before the Court.

Can a policeman/-woman or a soldier be held accountable for crimes committed under superior order? Yes. The defense that one is only acting under superior orders is not generally accepted in the court or in contemporary international criminal law. The superior who orders, solicits or induces the commission of crimes will also be responsible under the Rome Statute.

Can non-state actors such as combatants of the New People’s Army and the Moro Islamic Liberation Front be likewise prosecuted? When the Philippines becomes a party to the ICC, rebel groups like the NPA, MILF and other actors in an armed conflict who committed crimes within the Court’s jurisdiction may be prosecuted in the ICC. When the Philippines ratifies the Rome Statute, we need to adopt implementing legislation that will harmonize our domestic laws with the Rome treaty, thus enabling us to prosecute rebel groups for war crimes, crimes against humanity and other crimes within the jurisdiction of the ICC.


Are Filipino UN peacekeepers immune from the jurisdiction of the ICC in their tour of duty abroad? No. The ICC does not provide for any immunity of any kind to any individual. Article 27 of the Rome Statute provides that it “shall apply equally to all persons without any distinction based on official capacity.” Filipino soldiers and policemen who are part of multi-national peacekeeping forces assigned abroad may be subject to investigation and prosecution if they are involved in the commission of any of the crimes within the jurisdiction of the Court and when the situation of the country where they are sent is referred or investigated by the Court. In the same way, when the Philippines is a state party to the ICC treaty, we can protect our peacekeepers and help them obtain justice when they fall victims to crimes within the jurisdiction of the Court.

If an individual is indicted by the ICC, who will arrest him/her and how can he/she be brought before the Court? The ICC works based on international cooperation. When it comes to arrest it will request a State party to surrender the person to the Court. Depending on the arrangement, the Court and the State party may agree on who will shoulder the expenses.

How can a situation be brought to the ICC? A situation is brought before the ICC either by referral of a state party or the United Nations Security Council or by direct communications of the crimes within the jurisdiction the ICC. The Prosecutor will evaluate the information and commence an investigation, unless he/she decides that continuing or pursing an investigation has no reasonable basis and will not serve the interest of justice. The Prosecutor may also commence an investigation proprio motu , by asking and receiving and analyzing information submitted by reliable sources. After taking all information into consideration, and he/she believes that there is a ground to proceed he/she asks a Pre-Trial Chamber of the ICC to authorize an investigation. After considering all the information during an investigation, the Prosecutor may apply for the issuance of an arrest warrant, and if the Pre-Trial Chamber


decides that there are reasonable grounds to believe that the person accused by the prosecutor has committed a crime, it may issue a warrant of arrest or summons ordering the appearance of an accused before the ICC. If the person is captured or voluntarily surrenders to the jurisdiction of the ICC, the Pre-Trial Chamber will confirm the charges and trial will follow in one of the Trial Chambers.

What is the role of the victims in the proceedings of the ICC? The Rome Statute provides for an innovation on the role of the victims by giving them specific rights. As part of providing justice, the ICC helps and compensates them to enable them to rebuild their lives. They can present their views and observations to the ICC. They can also participate in the proceedings through legal presentation provided for by the ICC. Aside from the opportunity to be heard, they can also obtain in some cases, some form of reparation for their suffering. Under Article 79 of the Rome Statute, a Trust Fund for Victims is provided to answer for reparations and support the victims during the proceedings. During investigation and trial, the Court will take appropriate measures to ensure the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.

What are the rights of a person under investigation by the ICC? A person under investigation by the ICC cannot be compelled to incriminate himself or herself or to confess guilt. He/she cannot be subjected to any form of coercion, duress or threat, to torture or to any other forms of cruel, inhuman or degrading treatment or punishment. Additionally, he/she has the right to an interpreter, free of cost, if he/she wants to be questioned in his own language. A person under investigation shall not be subjected to arbitrary arrest or detention and shall not be deprived of liberty except in some cases in accordance with the Court’s procedure.


If there are grounds to believe that a person has committed a crime within the Court’s jurisdiction, and should be questioned by the Prosecutor or by national authorities upon request by the Court, such person shall be informed prior to questioning that there are grounds to believe that he/she has committed a crime, that he/she has a right to remain silent, to have counsel of his own choice or if he/she cannot afford one, he/she should be provided with legal assistance without pay, and the right to be questioned in the presence of his counsel, unless he/she has waived it voluntarily.

What are the rights of the accused facing trial in the ICC? The Rome Statute provides ample protection for the rights of an accused facing trial in the ICC. These are: a. The right to be informed of the charges against him/her in a language that he/she can fully understand. b. To have counsel of his/her own choice, or be provided with one when he/ she cannot afford one. c. To have adequate time and facilities for the preparation of his/her defense and to communicate with his/her counsel freely. d. To be tried without undue delay. e. To be present during trial. f. To examine witnesses against him/her and the right to present witness on his/her behalf. g. To have interpretation and translation, free of charge. h. Not to be compelled to testify or to confess guilt and to remain silent. i. To make an unsworn oral or written statement in his/her defense. j. Not to have imposed on him/her any reversal of the burden of proof or any onus of rebuttal. In addition to these rights, the Prosecutor shall disclose to the defense as soon as practicable, evidence in his possession or control which he/she believes will exculpate or mitigate the guilt of the accused, or which may affect the credibility of prosecution’s evidence.


Who will shoulder the cost of the case if ever a soldier or a policeman/-woman is indicted and prosecuted in the ICC? The ICC will shoulder the cost of the trial and all the basic needs of the accused while he is detained in The Hague. The ICC will also shoulder the payment of legal fees of the counsel for the accused if he/she is not able to afford one.

What forms of assistance are given by the Court to the defense? In the interest of fair trial as provided for under the Rome Statute, the accused will be provided a defense counsel and a team to handle his/her case during the trial. The Court will take every necessary measure to ensure that the defense is fully respected. Not only that the Court will ensure that the defense counsels are independent, the Court through the Registrar, will also: a. Facilitate the protection of confidentiality b. Assist in obtaining legal advice and the assistance of legal counsel c. Establish criteria and procedures for the assignment of legal assistance d. Provide for legal assistance paid by the Court, when the person lacks sufficient means to pay for it. The indigence will be is assessed by the Registry based on information furnished by the persons asking for legal assistance. The Court has a list of counsel accredited by it for their experience in the field of international or criminal law and procedure coupled with the necessary experience in criminal proceedings. The Office of the Public Counsel for the Defence will provide the necessary assistance, support and facilities to all defense counsels and investigators in the direct performance of their duties.

How can the ICC execute its orders? The ICC has no police or armed force to execute its orders like implementing arrests and summons. It relies mainly on the cooperation of States Parties and the international community as a whole. When they ratify the Rome Statute, states are bound to cooperate with the ICC in its investigations, in arresting persons by virtue of a warrant of arrest, in looking for evidence and witnesses, and in some cases, in the relocation of witnesses. The ICC also executes agreements with States Parties in the execution of its judgments, such as the hosting by a State Party of a convicted person in its penal institution as the ICC has no prison facility of its own.


Is the ICC a United Nations Court? No. The ICC is an independent organization established by the Rome Statute. It is not a judicial body of the United Nations, although it maintains an agreement called the Negotiated Relationship Agreement with the UN which embodies the institutional relationship between the two bodies in terms of cooperation and judicial assistance. Despite said agreement, the ICC maintains its independence.

Is the United States a state party to the Rome Statute? No. The United States was active in the negotiations during the Rome Conference. It signed the treaty under the Clinton administration. However, upon George W. Bush’s assumption of the US presidency, the US withdrew its signature and began a campaign to get states to conclude non-surrender agreements to shield its citizens from the jurisdiction of the Court.

Can politically motivated and other so-called ‘nuisance’ cases prosper in the Court? Not likely. Aside from the rule on “complementarity”, the Court has adequate safeguards to make sure that cases brought before it are reviewed properly and carefully. Before the Prosecutor can decide to investigate and take up a case, the case has to pass through the scrutiny of the Pre-Trial Chamber.


The Philippines and the International Criminal Court The Philippines actively participated in the negotiations of the Rome Statute. It was among the 120 states that adopted the treaty in 1998 and it later signed in 2000. Under the Philippine Constitution, after the President has signed the treaty, it has to be transmitted to the Senate for the latter’s concurrence. The President has not done so yet.

What benefits can the Philippines get for joining the ICC? As a member of good standing among the community of nations, the Philippines stands to benefit from joining the international movement for justice by becoming a state party to the Rome treaty of the ICC for the following reasons: 1. First and foremost, our people will be provided with an avenue of redress and a recourse to justice if and when they become victims of crimes against humanity, war crimes, genocide and aggression (eventually) that may be committed in our shores by domestic or foreign criminal offenders, whether state or non-state actors. 2. With more than 9 million Filipino migrant workers in many parts of the world, many of them in areas affected by war and conflicts, the ICC could also be an option to seek redress when serious crimes under the jurisdiction of the Court are committed affecting Filipino nationals. This is possible if the state where the crime was committed is a State Party or when the perpetrator is a national of such state, and if and when such state is ‘unable or unwilling’ to try such case.


3. Under the treaty’s complementarity principle, the ICC enhances the member state’s sovereignty and strengthens its domestic judicial system as it provides for the state’s prerogative to try cases using its national laws and local implementing legislation. 4. The Rome Statute provides for special protection for victims and their families through the creation of a Victims’ Unit and Victims’ Trust Fund that would take care of victims’ reparation, rehabilitation and compensation. The Court as an institution ensures that victims’ rights are protected and guaranteed. 5. With the country’s legal experts on international law and our experience in the process of the drafting of the Rome Statute, we can contribute significantly to the shaping of this newest mechanism for international justice. We can nominate judges, prosecutors and other personnel to work with the Court. 6. The Philippines has a crucial role in the ASEAN as well as in the whole Asian region, as a country with a history of getting rid of a dictator through peaceful means. Its direct People Power actions has inspired the world and could therefore be a shining example for other countries if it ratifies this treaty, reaffirming its adherence to the rule of law and to justice as a way to lasting peace. In Asia, only 7 states have ratified the Rome Statute: Cambodia, Timor Leste, Afghanistan, Republic of Korea, Mongolia, Tajikistan and Japan. Three have signed but have not yet ratified: Thailand, Bangladesh and the Philippines. Those that have declared their intention to ratify as soon as they have completed their respective domestic processes include Indonesia, Nepal and Laos. The ICC is created to end impunity and human rights abuses committed by both state and non-state actors. The ICC’s existence can be a deterring factor for further commission of crimes, knowing that victims can have redress when national courts are unable and unwilling to prosecute perpetrators of most serious crimes within the jurisdiction of the Court. Also, international criminals may use the country as a haven to elude arrest if the Philippines remains a non-member of the Court. As a member of the UN Human Rights Council and a major player in supporting a human rights mechanism in the ASEAN Charter, joining the ICC, A Primer on the International Criminal Court for the Security Sector 25

just like abolishing death penalty, will put the Philippines in high standing among nations that respect human rights, uphold the rule of law and promote international justice. The establishment of the Court concretizes the will of the international community in putting an end to impunity and in preventing future crimes from happening. The Philippines, through its ratification can contribute significantly to the realization of world peace through international justice.

How will ICC ratification impact on security sector reform? If the Philippines joins the ICC, we will be obliged to accord high priority to the rule of law, including human rights protection, which means that we have to strengthen and professionalize our security sector. The need for professionalism from our security sector also enhances the need for transparency from an accountable government. Professionalizing the security sector will reduce the problems of cases of military and police personnel now obtaining in the courts. Joining the ICC also serves as a preventive measure against the continuation and possible escalation of the phenomenon of extra-judicial killings and enforced disappearances. While most violators appear to come from state actors, there is now evidence of private armies engaged in these activities against innocent civilians in behalf of powerful interests. Ratifying the Rome Statute will help promote an environment of peace and the rule of law. Membership in the ICC can help improve greatly our flawed criminal justice system. This will help both victims and those unjustly accused, including security personnel whose cases are not addressed with dispatch because of court inefficiency and lack of lawyers for security personnel, among other factors.

When the Philippines joins the ICC, will it not undermine our national security interest if it is obliged to give information to the Court? No. In proceedings before the ICC, a state party may intervene and invoke the rule of confidentiality if, in its opinion, disclosure of information will prejudice its national security. All reasonable steps shall be taken so that the state and 26 For Hope & Human Dignity

the Prosecutor, the defense and the trial chamber will resolve the matter by cooperative means, like modifying the request, determining the relevance of the information, obtaining the information from other sources and agreeing on such other conditions that are reasonable and fair.

What are the financial responsibilities of the Philippines after ratification? A State Party has the obligation to pay the assessed contributions by the Assembly of States Parties based on the agreed scales of assessments and the scale adopted by the United Nations for its regular budget, and adjusted in accordance with the principles on which the scale is based. The Philippine government may also voluntarily contribute to the funds of the Court.

Are there job opportunities for Filipino policemen/women and soldiers in the ICC? Yes. When the Philippines ratifies the Rome Statute, Filipino lawyers, investigators, security forces and others will have more opportunities to work in the Court, since the ICC prioritizes hiring of nationals from state parties, particularly from Asia-Pacific which is underrepresented in the Court at the moment. The ICC provides a competitive salary package and other benefits like housing, health insurance, spousal allowance and others. Apart from job opportunities, the ICC has also internship programs for students and professionals from various fields including law, communications and media, information technology, psychology and security.

For more information about the International Criminal Court, including on the situations before the Court, please refer to www.icc-cpi.int and www.iccnow.org


Department of National Defense-Armed Forces of the Philippines (DND-AFP): Initiatives in Support of Human Rights and International Humanitarian Law A Paper presented to the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances – Searching For Solutions 16-17 July 2007

Introduction The following paper is respectfully submitted in response to the 05 July 2007 invitation and request of the Supreme Court for holistic solutions and inputs toward addressing unexplained killings and forced disappearances of civilian activists and media personnel. In this connection, the Department of National Defense (DND) submits the following material in order for the Supreme Court and participants to the Summit to have an appreciation of the existing and recent initiatives undertaken and mechanisms within the DND-AFP to address such unexplained killings and forced disappearances. The paper examines the initiatives of the DND-AFP, starting with the efforts to incorporate Human Rights (HR) and International Humanitarian Law (IHL) in AFP operations, relevant guidelines and issuances, AFP internal mechanisms in support thereof to include the military justice system, and related training and education. It is useful to point out that the material presented here was taken up by the recently concluded European Union-Needs Assessment Mission (EU-NAM). The Mission invited by the Philippine Government in order for the EU to provide an analysis to support the technical assistance, training and advice it has offered to the Philippines to address this issue.

29

The following lists the DND-AFP initiatives in support of Human Rights (HR) and International Humanitarian Law (IHL).

Support for International Conventions In May 2007, the DND conveyed its support to Office of the President for Philippine ratification of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (“Protocol I”) of June 8, 1977. This was preceded by the AFP endorsement in 31 March 2007 of Philippine ratification of Protocol I, saying that it would reflect the country’s resolve to combat crimes against humanity. The Geneva Conventions of 12 August 1949 serve as the principal means for the protection of victims of war and were ratified by the Philippines on 06 October 1952. Two (2) Additional Protocols supplementing the Geneva Conventions of 1949 were adopted in 1977, with the Philippines signing both the First and Second Protocol on 12 December 1977. The First Protocol (Protocol I) applies to the protection of victims of international armed conflicts, and specifies obligations that are intended to achieve greater protection of civilians without affecting the right of States to defend themselves by lawful means. Protocol I further extends protection to cultural objects, places of worship, objects indispensable to the survival of the civilian population, and to the natural environment. Protocol I does this by requiring that attacks be confined exclusively to military objectives. The said obligations are not seen as imposing unacceptable restrictions on military operations. The Second Protocol (Protocol II) deals with the protection of victims of noninternational armed conflicts. On 11 December 1986, the Philippines ratified Protocol II, while Protocol I remained to be ratified. It is important to note that although Protocol I had not yet been ratified by the Philippines, its provisions had already been translated into implementation measures and included in AFP manuals and directives, particularly those covering the Standing Rules of Engagement and Civil Military Operations (CMO). These are dealt with in the sections of this paper that follow. 30 For Hope & Human Dignity

Incorporation of Human Rights and International Humanitarian Law in AFP Operations The AFP incorporates Human Rights and International Humanitarian Law in its Internal Security Operations (ISO). This is evident in OPLAN BANTAY LAYA II, which contains coordinating policies that deal with Human Rights and International Humanitarian Law, and are embodied in the Standing Rules of Engagement (SROE). The Standing Rules of Engagement (SROE) in the Armed Forces of the Philippines (AFP) provides implementation guidance to AFP units on the application of force for mission accomplishment and in the inherent right and obligation of selfdefense. It establishes the fundamental policies and procedures governing actions to be taken by AFP commanders in the event of attack and during all military operations, contingencies, terrorist attacks, or prolonged conflicts. The SROE was reviewed back in 2005 by the Office of the Judge Advocate General (TJAG) to align the document with the universally accepted principles that include respect for human life and adherence to international law. It is significant to note that to ensure their observance, provisions of Command Responsibility have also been incorporated in the said OPLAN. It specifically states that commanders are responsible for their actions and inactions relative to Human Rights and International Humanitarian Law.

Guidelines and Issuances in Support of HR and IHL Further efforts in support of HR and IHL may be seen in the following AFP guidelines and regulations in the conduct of Internal Security Operations (ISO): 1. Guidelines on the Protection of Civilians Affected by Counterinsurgency Operations, issued 15 July 1988; 2. Guidelines on Human Rights and Improvement of Discipline, issued 02 January 1989; 3. Safety of Innocent Civilians and the Treatment of the Wounded and the Dead, issued 06 September 1989; 4. Presidential Memorandum Order No. 393 mandating the AFP and the PNP to adhere to the Principles of Human Rights and International Humanitarian Law in the Conduct of Police Operations; 5. Joint Circular 2-91 implementing Presidential memorandum Order 393 directing the AFP and the PNP to reaffirm their adherence to the principles A Primer on the International Criminal Court for the Security Sector 31

of Human Rights and International Humanitarian Law and directing that Commanders shall be held responsible for the conduct and behavior of subordinates, dated 02 November 1991; 6. GHQ, AFP Memorandum on Handling and Treatment of Children in Armed Conflict, dated 27 September 1991; 7. GHQ, AFP Directive directing Commanders to Investigate personnel charged with criminal offenses, dated 10 May 1996; 8. GHQ, AFP Directive delineating the functions of AFP investigative offices and units such as the TIG, OESPA, TPMG, and TJAG and strengthening the investigative function of the Provost Marshall which includes investigation of human rights dated 30 September 1999

AFP Internal Mechanisms in Support of Human Rights and International Humanitarian Law In addition to the above guidelines and issuances, the following lists the AFP institutions and efforts undertaken to strengthen HR and IHL. AFP Human Rights Office (AFP HRO): In order to further strengthen existing internal mechanisms on Human Rights in the AFP, the AFP Human Rights Office (AFP HRO) was activated on 12 January 2007, as a special staff of the Chief of Staff, AFP to address all HR and IHL concerns. The significant functions of the AFP HRO are advocacy and training, investigation and research, monitoring and linking with the Commission on Human Rights (CHR) and other agencies advocating HR. The AFP HRO likewise integrates all policies, regulations, pertaining to HR and IHL. The functions of the AFP HRO, as per Staff Memorandum Number 01 dated 13 February 2007 are as follows: • Plan, implement and supervise programs, measures and mechanisms to uphold, protect, and promote respect for HR/adherence to IHL and other international HR instruments; • Develop information systems and advocacy packages and pursue continuous education and information dissemination programs; • Integrate/synthesize all AFP policies/regulations and data gathered that are pertinent to HR and IHL; • Receive formal complaints on alleged violations of HR and IHL and cause their investigation; 32 For Hope & Human Dignity

• • • • •

Monitor litigation of cases against the AFP; Monitor violations of HR and IHL by threat groups and cause the immediate filing of cases/complaints and assist the victims/families; Liaise with the CHR, the PHRC, other Government agencies, NGOs, People’s Organizations (POs) for the protection of HR and adherence to IHL; Submit semi-annual reports on issues, concerns, and assessments of HR situations; Perform such other functions duties and tasks as may be directed by the CSAFP.

Military Justice System In addition to the AFP HRO, the AFP has in place an established military justice system that is designed to enforce discipline and administer justice in the military service. This includes the following existing offices in support thereof: 1. The Office of the Provost Marshall General (TPMG) instills discipline among all AFP personnel in order to attain a lawful environment. It promulgates and enforces laws, rules and regulations that are responsive to the overall objectives of the AFP. It also advises the Commander on safety and order inside camps and investigates offenses committed by individual servicemen and women. 2. The Office of the Inspector General (TIG) inquires into and reports on matters pertaining to mission performance, the state of morale and discipline and efficiency and economy in the utilization of resources in the AFP. It conducts such inspection, investigations, and reports as prescribed by law, AFP regulations or circulars or as may be directed by the Chief of Staff, AFP, or by the Secretary of National Defense. It also advises the Commander on unit readiness and discipline and investigates breaches of unit discipline. 3. The Office of the Judge Advocate General (TJAG) advises the Commander on legal matters and files criminal and or administrative cases against military personnel in civil courts, general court martial or the Efficiency and Separation Board (ESB). If evidence warrants, it also prepares charges on complaints received. 4. The Office of Ethical Standards and Public Accountability (OESPA) ensures the implementation of the AFP Code of Ethics, advises the Commander on ethical standards and public accountability and investigates violations of Code of Conduct and ethical standards of public officials. A Primer on the International Criminal Court for the Security Sector 33

Human Rights and International Humanitarian Law Training As early as 1992, the AFP had been incorporating modules on Human Rights and International Humanitarian Law in the career courses of its personnel. This is consistent with Presidential Memorandum No. 256 which mandated the inclusion of these courses in training to be undertaken by the AFP and the PNP. This training has been supplemented by training programs for trainers in International Humanitarian Law being conducted by the AFP and the International Committee for the Red Cross (ICRC). The AFP also produced and disseminated reference materials and publications on Human Rights and International Humanitarian Law such as the Philippine Army (PA) Handbook on Human Rights and International Humanitarian Law and complete packages of the “AFP Trainers IHL Manual for the Libraries of AFP Training Institutions and IHL Trainers. The AFP continues to institutionalize HR and IHL with the use of the AFP Code of Ethics through weekly troop information and education (TI & E) sessions.

The Way Forward Efforts to improve the observance and awareness of human rights and international humanitarian law within the AFP, while existing, will benefit from continued emphasis and attention in certain areas. The establishment of the AFP-HRO is a significant and positive step. At the same time, an appropriate form of technical assistance would be to raise the awareness and training in HR and IHL, and its continued application and refinement in the AFP’s internal security operations. Training courses may also range from courses in policy making at the strategic level to capacity building at the unit level to strengthen the capability of AFP units to investigate, gather evidence and file cases. In addition to learning objectives and awareness, these opportunities would focus on indoctrinating participants for advocacy and system internalization. Civilian and military personnel would attend such courses with the objective of becoming trainers and eventually, policy and decision makers. Indoctrination would also enable personnel to craft guidance and undertake advocacy of HR and IHL in their respective organizations. 34 For Hope & Human Dignity

Technical Assistance appropriate to the needs and capabilities of the DND-AFP would not only assist in disseminating HR and IHL to organic personnel, but establish a core of HR-IHL advocates, and strengthen and internalize HR-IHL within the organization. In the context of the increasing attention to the unexplained killings and enforced disappearances, the Government must be ready to provide the appropriate resources to support the will it has conveyed to date. It may also have to further examine its institutional framework and be ready to engage the different stakeholders in order to resolve the issue. In closing, it is hoped that the initiatives described in this paper may enable the Supreme Court and the participants in the Summit to develop an awareness of the role of the DNDAFP in supporting human rights and international humanitarian law, the continuing urgency and necessity for doing so, in order to bring to an end the killings and disappearances, and in the process, contribute to stabilizing and strengthening the Republic.

ROBERTO EMMANUEL T. FELICIANO Assistant Secretary for Plans and Programs

Downloaded from the website of the Supreme Court of the Philippines: http://www.supremecourt.gov.ph/


Primer on ICC

Recommend Documents