With Due Respect
Justice without borders
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 23:40:00 11/01/2008
Filed Under: Laws, Justice & Rights
LET us say that an Australian businessman brutally kills his Filipina wife in a hotel room while the couple, who are residents of Singapore, are visiting Bangkok. Undoubtedly, this crime is punishable by the laws of Australia, Philippines, Singapore and Thailand. However, the killer can be criminally investigated, prosecuted and sentenced only in Thailand. Should Thai authorities refuse or fail for any reason to prosecute the killer, may he be indicted here? No, because the crime happened beyond our borders.
Factors hindering justice. As a rule, criminal laws are territorial in scope; they cannot apply to acts done outside the country, regardless of the parties’ residence, status and citizenship. Local laws granting immunity to the perpetrators may also hinder justice. For instance, under our Constitution, the president is immune from suit while in office.
There are other factors why criminals may evade prosecution. Fiscals may be unwilling or unable to reach them because of their high office, personal wealth or influence. Impunity could also arise from the neglect, laziness or ineptness of the prosecutors or local courts. Too, upon the lapse of certain periods prescribed by law, a crime may be legally extinguished and the perpetrator no longer accountable.
Because of the many factors that freeze prosecution on the domestic level, the administration of justice for serious crimes has been globalized, starting with the establishment of the Nuremberg Tribunal in 1945 to try German war criminals and the Tokyo Tribunal in 1946 to penalize Japanese war offenders. Despite the intrinsic merit of their decisions, these tribunals have been belittled as one-sided dispensers of the “victors’ justice,” in which the accused had no chance of acquittal.
To remedy this lack of judicial independence, the United Nations Security Council established ad hoc war courts like the International Tribunal for (the former) Yugoslavia (1993) and Rwanda (1994). Later, weak host governments partnered with the Security Council and set up “Hybrid Tribunals” like those in Sierra Leone, East Timor, Cambodia and Lebanon.
These latter courts were not spared of criticisms because their sponsor, the Security Council, is dominated by the big powers that enjoy veto privileges. Besides, these ad hoc tribunals—while successful in many ways—dispensed selective, retributive justice on a case-to-case basis only. They had no fixed situs or firm financial and administrative support.
Permanent, independent tribunal. The aspiration for a truly independent, permanent, stable and competent international tribunal was fulfilled on July 17, 1998 when 120 states attending the Rome Diplomatic Conference created the International Criminal Court (ICC). The ICC Statute became effective on July 1, 2002 when 60 of the 120 states ratified it. Unlike national courts and ad hoc tribunals, the ICC thumbs down immunity given to heads of state, insists on their command and individual responsibility for offenses and does not recognize prescription or amnesty granted by local laws.
It sanctions violations of what is now known as International Humanitarian Laws during armed conflicts and International Human Rights during peace time, thereby guaranteeing humane treatment of combatants and the strict observance of fundamental civil, political and social rights. In this manner, the territorial shield of the most heinous crimes was broken. Equally important, the overarching goal to end impunity for dictators, presidents and other heads of state was achieved.
The ICC is a court of last resort, available only for exceptional cases when national judicial systems have failed to bring justice because they are unwilling or unable to investigate and prosecute those who bear the responsibility for the most serious of crimes; namely “genocide, war crimes, crimes against humanity and aggression.”
Ratify the ICC Statute. On Dec. 28, 2000, the Philippines (under President Joseph Estrada)—along with 123 other countries—signed the ICC Statute. After almost eight years and despite the endorsement of key government agencies and civil society groups, the Office of the President has not submitted the treaty to the Senate for concurrence.
Critics say that the administration is reluctant to have it ratified because Gloria Macapagal-Arroyo could be brought before the ICC by her enemies. Along with her top officials and high military officers, she could be criminally prosecuted for human rights violations, extrajudicial killings and enforced disappearances specially after her term ends in 2010. The ICC’s principles on command responsibility may be weighed against her.
However, for the 10 million overseas Filipinos, particularly those in areas ravaged by wars and armed conflicts, the ICC could be their viable option to seek justice when serious crimes under the jurisdiction of the Court are committed against them.
The Philippines is proud to be one of the first signatories to the Universal Declaration of Human Rights. It is also one of the few nations to have ratified all the seven core human rights treaties amplifying the declaration. GMA should prove the critics wrong. The Philippines should now ratify the Rome Statute. It has only till the end of 2009 to do so. Let us join the ICC where justice has no borders and despots have no shield.
The worldwide crusade for borderless justice is led by the European Union. Passionately promoting the ICC here is Italian Ambassador Rubens Anna Fedele.
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Comments are welcome at chiefjusticepanganiban@hotmail.com
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