Philippines signs Rome Statute

On Tuesday, Aug. 23, 2011, our country took a historic step and became the 117th state to join the International Criminal Court (ICC) that was created to end impunity. Sen. Miriam Defensor-Santiago, chair of the Sub-Committee on the Rome Statute, shepherded the treaty through the process of Senate concurrence and masterfully defended it on the Senate floor. I was present when the senator presided over the committee hearing a few weeks back, and more recently when she was interpellated by her colleagues. Man, she knew her stuff—and this I say as someone who took part in drafting the Statute and has been teaching it for the past 10 years.

The treaty creating the ICC was adopted in Rome during the summer of 1998 (it is called a statute because it creates a tribunal, and hence the more popular name Rome Statute). It was signed by President Joseph Estrada in December 2000, but President Gloria Macapagal-Arroyo—after Edsa II—refused to forward it to the Senate for ratification. In Pimentel and Rosales v. Executive Secretary, the Supreme Court refused to compel Arroyo to send it to the Senate, claiming that that belonged to executive discretion over foreign relations.

In the meantime, the United States, under President George Bush, boycotted the ICC and bullied states to sign “bilateral immunity agreements” (or BIA) that would immunize US servicemen from being tried by the ICC. Not surprisingly, the Philippines was one of those who signed a BIA, and rather stealthily without Senate concurrence. In Bayan Muna v. Secretary Romulo, the Court once again washed its hands, saying that the executive had the discretion to downgrade the BIA from a full-fledged “treaty” requiring a Senate vote to a mere “executive agreement.” It took President Aquino to forward it to the Senate earlier this year, which put in motion the treaty ratification process.

By joining the ICC, our country consolidates its position as the leading human rights constituency especially in the Asean region. Although our human rights record may have faltered under President Arroyo, compared to many of our Asean neighbors, we retain the vanguard position and in fact can use it as a foreign policy trump card.

Our ICC membership enjoys the blessings of history. We have ratified the most important human rights covenants and the treaties that protect civilians and other non-combatants during armed conflicts. We must remember that the ICC can trace its history to one of the most famous war crimes trials (In re General Tomoyuki Yamashita) conducted in Asia. Yamashita was captured in Ifugao, detained in Baguio, tried in Manila and executed in Los Baños. Moreover, the Tokyo War Crimes Tribunal, created as part of the instrument of surrender of Japan, included one judge from the Philippines, Delfin Jaranilla.

The ICC actually adopts a radical shift in the enforcement of humanitarian law. It used to be that only states were bound by humanitarian laws. The Nuremberg Tribunal changed all that, and took a new tack. Robert Jackson, the American chief prosecutor at Nuremberg, said: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

The beauty of this is that it depoliticizes the punishment of war crimes and crimes against humanity. The ICC doesn’t pass judgment over states. It doesn’t ask who is righteous and who is evil, or which side has the lesser god. It doesn’t ask who is fighting a “just war.” Rather it sits in judgment only as a criminal court. It asks only whether the accused is guilty or

innocent of the crime charged.

Moreover, traditionally, only states are bound by human rights obligations, and the bizarre result is that on the battlefield, a nation’s soldiers are bound to respect human rights while the rebels are not. That is why the law of armed conflict took one step forward: it binds both parties to the armed conflict, whether state or non-state. As pointed out by Senator Santiago, the ICC fully installs legal “symmetry” between the protagonists to armed conflict.

Today even the United States has begun to soften its boycott of the ICC. Toward the end of his presidency, even George Bush’s own secretary of state, Condoleezza Rice, said that its boycott of the ICC is “like shooting ourselves in the foot.” It antagonized US allies and allowed Russia and China to fill the gap that the United States has opened by default. By that same logic, Japan has recently signed the ICC because it realized that joining the ICC is better than staying out.

I rejoice as well at a personal level. I have for the past years been co-chair of the Philippine Coalition to ratify the Rome Statute, first with then Rep. Etta Rosales (Akbayan Party List) and, when Etta was appointed chair of the Commission on Human Rights, with Dr. Aurora Parong of Amnesty International. The list of people to be congratulated is very long, but I must mention Evelyn Serrano who heads the Asian campaign of the International Coalition for the ICC; Rebecca Lozada who fought in the trenches and marshaled the troops, so to speak; Eleanor Conda who ensured that the campaign would never lose sight of gender justice, and my colleague in the UP law faculty, Harry Roque, who was counsel in those cases that opposed impunity and that pushed for the Rome Statute.

Robert Jackson called the Nuremberg Tribunal “one of the most significant tributes that Power has ever paid to Reason.” We live in a land where Power pays homage to no one, but starting Tuesday this week, it might have to learn to new habits.

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