SOME PROBLEMS AND APPROACHES IN THE
RELATION OF NATIONAL LAW AND THE ROME STATUTE
OF THE INTERNATIONAL CRIMINAL COURT:
APPLICATION OF INTERNATIONAL HUMANITARIAN LAW
By
Senator Miriam Defensor Santiago
(Speech delivered at the ICC symposium, held at the DFA Auditorium,
on 26 August 2011.)
At some other time, we should create the prospect of undertaking a closer analysis and a more comprehensive review of how the Rome Statute impacts on Philippine law, in particular its constitutional framework.
Today, we are left with the limited opportunity to deal with selected problems and approaches in general overview, which may suggest to us the complexity of the problems in the larger frame, in the relation of the domestic law with the new mechanisms of the international criminal law under the Rome Statute.
Admittedly, the establishment of the International Criminal Court (ICC) is a phenomenal achievement of the international community, and with the Senate concurrence of the Rome Statute, the Philippines stands involved in its compelling desire for universality of acceptance and recognition by the international community as a whole. As desired, the Philippines shares the glory of ICC’s creative processes reaching its fruition in parallel with a century of violence and atrocities inflicted upon humankind. Now, the Philippines has become a party to institutionalizing the Rule of Law in dealing with the perpetrators of international crimes enjoying impunity, while affirming their rights as accused before the ICC.
The crimes within the jurisdiction of the ICC are well known in principle. However, the limits of its jurisdiction may elude popular understanding and deserve broader treatment.
1. The fourth preambular paragraph of the Rome Statute makes reference to the “most serious crimes of concern to the international community as a whole which must not go unpunished.” This scope is translated into jurisdictional terms in Article 1 and more expressively in Article 5(1) of the Rome Statute. Article 1 ordains that the Court “shall have the power to exercise jurisdiction over persons for the most serious crimes of international concern.” In defining the “crimes within the jurisdiction of the Court,” Article 5(1) provides:
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression
In the first place, the crime of aggression set forth in Article 8 bis as approved by the Assembly of States Parties (ASP) on 11 June 2010, is not yet operative on account of unfulfilled conditions provided by the ASP.
Secondly, the necessary implication arises from Article 5(1), given above, that the “most serious crimes of concern to the international community” are limited to those set out in this provision. As to whether other crimes would be added later by amendment is left to future consideration by the Assembly of States Parties (ASP).
Thirdly, as to the crimes against humanity, the jurisdiction of the ICC is subject to the qualification that the acts in question when committed were “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” as specified in Article 7(1) of the Rome Statute.
Fourthly, in regard to war crimes, there must be an element to the effect that the war crimes when committed were “part of a plan or policy or as part of a large-scale commission of such crimes,” as provided in Article 8(1) of the Rome Statute.
The qualifications indicated with respect to crimes against humanity requiring multiple commission of acts are considered elements of crime in Articles 7 to 7(1)(k) of the Elements of Crimes, which under Article 9 of the Rome Statute shall assist the ICC in the interpretation and application of the crimes within the jurisdiction of the Court.
The limits of jurisdiction as thus pointed out may become issues of admissibility of cases in the Court’s jurisdiction. Under Article 17(1)(d), “the Court shall determine that the case is inadmissible where “the case is not of sufficient gravity to justify further action by the Court.” This factor may leave the case solely to national criminal jurisdiction.
2. The acceptability of the ICC in the proceedings of the UN Diplomatic Conference on the Rome Statute is enhanced by the accommodation that it gives to the interplay of national criminal jurisdiction with the ICC jurisdiction: It provides optimum room to State sovereignty. It creates a relation of unity between the two legal systems by the principle of complementarity.
In affirming the principle of complementarity, the Rome Statute in its sixth preambular paragraph begins with “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,” by way of asserting the primacy of the national courts over the ICC with respect to crimes within its jurisdiction. The tenth preambular paragraph of the Rome Statute declares that “the International Criminal Court . . . shall be complementary to the national criminal jurisdiction,” which is reaffirmed textually in Article 1 of the Statute.
The complementarity principle finds operability in Article 17(1) of the Court’s Statute under which the ICC shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it, and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; . . . .
Limiting our discussion to the two categories of cases given above, primacy of national jurisdiction will prevail at all times when the State authorities regularly perform their functions in investigation or prosecution. It is only in exceptional cases that the ICC will assume jurisdiction over and above that of the national courts, i.e., in cases of unwillingness or inability of the State to investigate or prosecute under Article 17(1)(a) and (b). However, the decisive factor in these cases is the ICC acting as an arbiter of the issue pertaining to its own jurisdiction when conflict arises from the application of the cases under Article 17(a) and (b): whether it is the rule or its exception that will prevail in practice in each case.
Considering the crucial importance of Article 17(1) of the Rome Statute in the application of the complementarity principle, what deserves emphasis is the premise that the investigation or prosecution in question on the national plane concerns the international crimes within the jurisdiction of the ICC under the assumption that the State Party involved, such as the Philippines, possesses the jurisdictional requirements over the said international crimes under its own internal law, including the need for universal jurisdiction.
In brief, the operability of the complementarity principle is subject to the prerequisite that the crimes defined within the ICC jurisdiction are provided in the national criminal law as international crimes. Relevant is the Preamble of the Rome Statute, when “it recalls that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”
In this respect, the criminal jurisdiction taken on the national level rests on the assumption that the criminal conduct under investigation or prosecution meets the elements defined by the Elements of Crimes of the Rome Statute.
A major aspect of the complementarity problem on the part of the Philippines is the fact the ICC Statute enthrones it as a critical factor in the relation of Philippine law with the ICC Statute, but national law dethrones it, in effect rejecting the complementarity principle. This appears to be the consequence of Section 17 of Republic Act No.9851 or the “Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity”. It provides as follows:
In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties. [Emphasis added.]
3. The issues derived from the operation of the complementarity principle may be traceable to the threshold problem with respect to the Philippines: Is the Rome Statute self-executory in the sense that by virtue of Senate concurrence and pursuant to its entry into force under Article 126(2) of the Statute, may criminal prosecution in domestic jurisdiction be done on the basis of the text of the Statute as acceded to by the Philippines without the benefit of enacting it into statutory law? Recall that the crimes textually defined under the Rome Statute as thus acceded are specified as crimes within the jurisdiction of the ICC; it does not appear to be acceptable that concurrence by the Senate has effectuated the automatic conversion to the jurisdiction of domestic courts over the said crimes which are problematically defined in the first place under Philippine law.
Within the context of the Rome Statute, the Treaty Clause of the Philippine Constitution runs short of meaning when it provides that a treaty shall be “valid and effective” when concurred in by the Senate. In this light, the Rome Statute is in search of meaning as to its terms of validity and effectiveness as domestic law for purposes of criminal prosecution which may not be accomplished in practice on the basis of the Rome Statute alone as a multilateral treaty. What remains in clarity is its legal status as a source of rights and obligations of the Philippines in relation to other States Parties to the Statute. However, an intensive study is called for on the problem as to what provisions of the Rome Statute would require domestic enforceability by legislative enactment in order to prosecute “those responsible for international crimes” within Philippine jurisdiction.
4. Limited as they are in this presentation, the problems thus surveyed ramify into the application and enforceability of international humanitarian law (IHL) in Philippine jurisdiction, on account of the fact that the substance of IHL is built into the Rome Statute. In particular, “war crimes” as set forth in Article 8 of the Statute are defined in terms of grave breaches or serious violations of the Geneva Conventions of 12 August 1949 with respect to both international and internal armed conflicts.
At least two factors complicate the problems pertaining to the Rome Statute vis-à-vis the IHL in Philippine jurisdiction. In the first place, Protocol I Additional to the Geneva Conventions of 12 August 1949 has remained unratified and a number of acts proscribed by the Statute are covered by this Protocol.
Secondly, Republic Act No. 9851 referred to earlier, replicates the definition of the crime of genocide and of war crime as set forth in Articles 6 and 8 of the Rome Statute, but omits the vital element that the “conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could effect such destruction,” in the case of genocide; and the element pertaining to “when committed as part of a plan or policy or as part of a large-scale commission of such crimes,” in the case of war crimes. (See Elements of Crimes Arts. 6 and 6(a) and the Rome Statute, Art. 8(1.) While RA 9851 contemplates single acts as constituting the relevant crimes and provides penalties for the commission of single acts of genocide and of war crimes; the Rome Statute, on the other hand, defines these crimes in terms of multiple commission of acts such that they show “a manifest pattern of similar conduct” or “part of a large-scale commission of such crimes.”
In this regard, we need a systematic inventory of discrepancies between the features of the Rome Statute and the relevant statutory enactments in Philippine jurisdiction in order to achieve the necessary congruence.
What I have surveyed is intended to suggest the wide-ranging tasks we have to undertake and complete, following the Philippine accession to the Rome Statute. Let me leave you with a proposal to think about. I wish to recommend that we constitute a commission of experts to engage in a thorough professional study of emergent problems and approaches under Philippine law in relation to the Rome Statute, and on this basis create the prospects of an outstanding contribution of the Philippines to the international public order.
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