Professional Documents
Culture Documents
Human Dignity
&
A Primer on the International Criminal Court for the Security Sector
ISBN 978-971-93746-1-9
Editorial Team
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?
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.
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.”
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.
1
Excerpts from the paper presented by Dr. Raul Pangalangan, co-chair of the Philippine Coalition for
the ICC and former dean of the College of Law, University of the Philippines, at the Asian 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.
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
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.
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
“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.”
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.
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.
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.
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:
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.
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.
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 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.
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.
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.
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.
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.
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
Introduction
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).
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 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.
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 self-
defense. 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.
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
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;
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.
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.