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Philippine Coalition for the International Criminal Court

For HopeHuman DignityA Primer on the International Criminal Court for the Security Sector


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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 mostadvanced 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 DisappearancesSearching 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)


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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


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A Primer on the International Criminal Court for the Security Sector 7

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 criminaltribunalsNuremberg, Tokyo, Yugoslavia, and Rwandawere 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 arestanding 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


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8 For Hope & Human Dignity

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 thisbecause 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 self-

determination. It entailed the creation of ad hoc tribunals. The Serious

Crimes Unit was created by the UN Transitional Authority for East Timor. Thead 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 States sovereignty. States

have often refused international oversight saying that human rights within

their borders are solely within the scope of their national sovereignty. Theadvantage 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 States 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 thetribunal 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


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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 philosophyinstant, over-the-

counter and off-the-rack. But when they work

together and carry out their work through or

around international criminal tribunals, theyoffer 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 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.

The Court equalizes

the burdens in cases

of internal armed

conflict, between the

State and non-State

actorsObligations

are imposed equally

upon the States

armed forces andthe rebel forces.


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Primer on theInternational 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 heldin 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 inresponse 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 thenext two years, the United Nations held six

Preparatory Commission meetings in New York.


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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 ICCs 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

Courts 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 ofcomplementarity. The ICC holds the state party primarily responsible for the

investigation and prosecution of any crime committed within its jurisdiction.


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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 ICCs 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 criminalresponsibility, 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 accordancewith 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;


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a. Willful killing;

b. Torture or inhuman treatment, including biological experiments;

c. Willfully causing great suffering, or serious injury to body or health;

d. Extensive destruction and appropriation of property, not justified by

military necessity carried out unlawfully and wantonly;

e. Compelling a prisoner of war or other protected person to serve in the

forces of hostile power;

f. Willfully depriving prisoner of war or other protected person of the rights

of fair and regular trial;

g. Unlawful deportation or transfer or unlawful confinement; and,

h. Taking of hostages.

War crimes also include serious violations of the laws and customs applicablein 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 jurisdictionof 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 judgmentpronounced by a regularly constituted court, affording all judicial

guarantees generally recognized as indispensable.


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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 enforceddisappearances 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 willpreclude the ICC from exercising jurisdiction over crimeswhich 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 prosecutionand 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, providedthat those principles are not inconsistent with the Rome Statute and with

international law and internationally recognized norms and standards.


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Who can be held responsible and be prosecutedin the International Criminal Court?

The ICC has jurisdiction only on individuals

who are directly responsible for thecommission 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 ICCs 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 andreasonable 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 courts 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


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

indictments.

Can police or military personnel be held liable for crimescommitted in the Philippines?

Yes. If the crimes committed by an individual, whether police/military

personnel or not, come within the purview of the Courts 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 accountablefor crimes committed under superior order?

Yes. The defense that one is only acting under superior orders is notgenerally 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 theNew Peoples Army and the Moro Islamic Liberation Frontbe 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

Courts 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.


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Are Filipino UN peacekeepers immune from the jurisdictionof 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 allpersons 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/herand 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 theinterest 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


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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 theproceedings 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 TrustFund 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 casesin accordance with the Courts procedure.


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Who will shoulder the cost of the case if ever a soldier or apoliceman/-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 oflegal 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 defensecounsels 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 thehosting by a State Party of a convicted person in its penal institution as the

ICC has no prison facility of its own.


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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. Bushs 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 nuisancecases 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.


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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 latters

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.


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3. Under the treatys complementarity principle, the ICC enhances the

member states sovereignty and strengthens its domestic judicial system

as it provides for the states 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 countrys legal experts on international law and our experience in

the process of the drafting of the Rome Statute, we can contributesignificantly 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 itratifies 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 ICCs 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,


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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 Philippinesafter 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/womenand 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


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2 9

Department of National Defense-ArmedForces of the Philippines (DND-AFP):

Initiatives in Support of Human Rightsand International Humanitarian Law

A Paper presented to the National ConsultativeSummit on Extrajudicial Killings and Enforced

DisappearancesSearching For Solutions16-17 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 offeredto the Philippines to address this issue.


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Incorporation of Human Rights and InternationalHumanitarian 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 self-

defense. It establishes the fundamental policies and procedures governing actionsto 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. Itspecifically 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


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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 Rightsand 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 HumanRights 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 touphold, protect, and promote respect for HR/adherence to IHL and other

international HR instruments;

Develop information systems and advocacy packages and pursuecontinuous 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;


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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, PeoplesOrganizations (POs) for the protection of HR and adherence to IHL;

Submit semi-annual reports on issues, concerns, and assessments of HRsituations;

Perform such other functions duties and tasks as may be directed by theCSAFP.

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 offensescommitted 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 andinvestigates violations of Code of Conduct and ethical standards of public

officials.


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Human Rights and International HumanitarianLaw 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 PhilippineArmy (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 AFPs 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.


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primer on icc

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