The road to the International Criminal Court

The statute for the International Criminal Court (ICC) will enter into force in the Philippines on November 1, three months after the Philippine government deposited its instrument of ratification to the Rome Statute of the ICC. We actually are one of the later joiners.

The ICC treaty itself was born on July 17, 1998 when 120 states adopted the Rome Statute as the basis for establishing a permanent ICC. It was a historic milestone. The Rome Statute entered into force after 60 countries ratified it on July 1, 2002. The Philippines is the 117th to ratify it.

The road to the formation of the Rome Statute had a much earlier start.  As early as the 1950s it was already being considered in the United Nations.  It was, however, not until 1989, after the Cold War had ended, that attention was again drawn to it. The discussion came about when Trinidad and Tobago suggested that the International Law Commission establish an ICC to deal with drug trafficking. What came out as a result was a draft that would cover more than just drug trafficking and which would evolve into what was debated on in the Rome Conference of June-July 1998 to eventually become the Statute of the International Criminal Court. Its birth was spurred in part by the creation of the earlier International Criminal Tribunal for Rwanda and the International Criminal Tribunal for Yugoslavia.

The jurisdiction of the ICC, however, does not cover all kinds of criminal offenses. It covers only “the most serious crimes of concern to the international community as a whole.” According to Article 5(1) these are genocide, crimes against humanity, war crimes and the crime of aggression.  The Rome Statute describes these crimes in detail and a supplementary text provides the elements of each of the crimes.

Now that the Philippines has become party to the Rome Statute, what are the chances of the Philippines being able to bring cases to the ICC?  The preconditions for the exercise of ICC jurisdiction will make such occasions very rare indeed, if at all. The preconditions are that the alleged crime was committed on the territory of a state party to the Statute, that the State of the person accused of the crime is a party to the Statute, and finally that the crime is not being investigated or prosecuted by national authorities or that national authorities are unwilling or incapable of genuinely carrying out the investigation or prosecution.

In other words, the jurisdiction of the ICC is complementary. It is not intended to replace national courts. This flows from a recognition of national sovereignty. The aim of those who drafted the Statute was to create an independent, fair, impartial and effective court.

Postscript.This postscript has nothing to do with the ICC. In fact it is very parochial in scope.  It is  about an ordinance or proposed ordinance from the same barangay that came out with a very controversial ordinance about contraception. This time it is about purifying the barangay population. The ordinance is titled “Ordinance enforcing the proper use and control of residential houses and lots within Barangay Ayala Alabang, including maintaining records of residents and monitoring transient or temporary residents and providing penalties for the violation thereof.”

Section 1 states the heart of the ordinance: “It shall be the duty and responsibility of all lot owners, homeowners and tenants to ensure that the residential houses they own and occupy be limited strictly for the use of one (1) single family unit up to the fourth civil degree by consanguinity, and their house helpers, i.e., servants, caregivers, gardeners and drivers.” There is also a provision on the uses of empty lots within the barangay.

A “Whereas clause” seems to indicate that the ordinance was partly inspired by reports of the presence of foreign students under circumstances that do not come under the list of legitimate occupants as found in the Ordinance’s Section 1. My impression, however, is that the terms of Section 1 will effectively exclude all foreigners, except those foreigners who have owned lots in the barangay prior to the 1935 Constitution. I doubt that there are any such owners. Foreigners now cannot acquire private lots. Will this restriction on foreigners imposed by a state entity have an international implication?

It will be interesting to watch what will happen to, or under, this ordinance—and whether it will suffer the same fate as the earlier ordinance on contraception.