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Sisyphus’ Lament

Why Filipinos are liable for ICC crimes

It is astounding that we actually debate whether Filipinos can be tried for the crimes against humanity listed in the Rome Statute, the treaty creating the International Criminal Court (ICC)—instead of debating these crimes’ incomparable gravity.

The more crucial the legal issue, the more Filipinos miss the point.

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Nullum crimen sine lege (no crime without law) is one of law’s most basic principles. No man can be punished for what he cannot know is a crime.

If a new law criminalized fake accounts, we could not use it to prosecute old posts. Nor could we apply it in an ongoing trial. These would violate fundamental fairness.

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Thus, our Civil Code requires laws to be published in our Official Gazette (officialgazette.gov.ph) or newspapers. We cannot enforce laws no one knew about, as was the case during the Marcos dictatorship.

So is our government right that ICC crimes cannot be binding in the Philippines because we never officially published the Rome Statute?

Our elected Congress defines crimes. Our people’s will lays the moral foundation to punish one of our own.

But what would make it fair to punish international crimes, given there is no world congress?

First, could we simply write down such crimes? Could governments sign a treaty with formal definitions and each publish it in their homelands?

This is, in fact, what we did.

A United Nations conference voted 120-7 to adopt the Rome Statute in 1998. President Joseph Estrada signed it in 2002.

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In 2009, our Congress passed Republic Act No. 9851, or the “Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity.” This defines crimes that mirror the ICC crimes.

This law is, in fact, in the Official Gazette.

In a facepalm moment, an opposition congressman (inaccurately) proclaimed that international treaties take precedence over Philippine laws. This is arguably an “own goal.”
He should stress how a Philippine law adopted the ICC crimes on Filipinos’ own authority as a sovereign nation — two years before our Senate ratified the Rome Statute in 2011.

RA 9851 even asserts our jurisdiction over crimes against humanity not only within the Philippines, but anywhere in the world if a criminal or a victim is Filipino.

Second, are there crimes so abominable they transgress the very essence of what makes us human?

Are there crimes so horrible any human authority should be able to punish them even if they were never formally written down?

RA 9851 reflects this thinking. It affirms the duty of every country to punish the “most serious crimes of concern to the
international community as a whole.”

Media should stop perpetuating the error that lawyer Jude Sabio is the complainant in the ICC investigation not only because there is no such thing in ICC procedure, but because it cheapens how the “complainant” is the entire human race.

Imagine if the Philippines were invaded again. Imagine if millions of our countrymen were killed, tortured and raped en masse. Imagine if all our laws were burned and all our lawyers executed.

Imagine if our neighbors then came to our aid and liberated our country. Would we really insist that our neighbors could not try and punish the invaders for such atrocities if no one could find a scrap of paper publishing the definition of “crimes against humanity” in the Philippines?

But again, this is a purely hypothetical debate because RA 9851 has been in the
Official Gazette for 10 years.

And so it is a nonissue whether ICC crimes are binding in the Philippines. We should really be debating the solemn principles underlying them.

We are a sovereign nation and I will always stand with my country and government.

But even without a formal law punishing them, shouldn’t a sovereign and free nation uphold the inherent rightness of condemning crimes against humanity alongside the rest of the human race?

And if other sovereign and free nations accused us of such crimes, no matter what their authority, wouldn’t each of us perpetually bear the shame of such an accusation?

React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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TAGS: ICC, International Criminal Court, Oscar Franklin Tan, Rome Statute, Sisyphus’ Lament
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