Bring MILF before The Hague court

In pursuit of his “all-out justice” response to the atrocities by the Moro Islamic Liberation Front, and in addition to his other options, there is one action the President can take: Hale them to the International Criminal Court. It was UP law professor Harry Roque who first broached the idea at a forum at Malcolm Hall, where he was the discussant at a lecture by Sen. Miriam Defensor-Santiago on the International Criminal Court.

Reports show that, of the 19 Filipino soldiers killed in Al-Barka, Basilan, several were actually captured alive after the firefight and were killed while in the custody of the MILF. That, Professor Roque rightly says, is a brazen violation of international humanitarian law. “International humanitarian law prohibits the wanton killing of detainees under the custody of an enemy.”

The Rome Statute (the charter of the ICC) protects those “members of armed forces who have laid down their arms and those placed hors de combat [out of action] by sickness, wounds, detention or any other cause,” that is, even in internal armed conflicts like that which we face in Mindanao. The captured Filipino soldiers fall squarely within that scope of protection. The Statute protects them against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.”

The best argument that the MILF can raise to avoid this is to say that ICC jurisdiction is limited to “the most serious crimes of international concern” and that this was merely an isolated incident. Unfortunately for the Philippine government, that is exactly how its own peace negotiators have described the killings. That is equivalent to the Philippine government shooting itself in the foot. It’s like when your own lawyer forgets who his client is.

Make no mistake about it. This was not a solitary episode of MILF impunity. It’s not as if this was the first time the MILF has committed war crimes. As recently as in 2007, MILF members beheaded soldiers or, in other words, committed “violence to life and person, in particular … mutilation, cruel treatment and torture,” quoting from both the Rome Statute and our own Republic Act 9851, the Philippine Act on Crimes Against International Humanitarian Law.

The MILF might also think that it can raise the defense of “complementarity,” namely, the principle that Philippine courts should have the first shot at prosecuting offenders. Unfortunately for the MILF, that is an argument of “inadmissibility” that can be raised only on behalf of the Philippine government whose courts can claim to have that first shot. That jurisdictional objection is not available to the MILF.

In fact, RA 9851 even gives our local authorities, “in the interest of justice,” the option to “dispense with the investigation or prosecution [if an] international tribunal is already conducting the investigation or undertaking the prosecution of such crime.”

Finally, from a political standpoint, referring the case to the ICC shouldn’t jeopardize the peace talks. Indeed the punishment of crime before an international court should be seen as complimentary to political negotiations toward a peaceful settlement.

To start with, the Rome Statute de-politicizes the prosecution of the war crimes. Whether or not the killers should be punished will be decided by neutral judges applying legal standards, not by politicians trading favors on the bargaining table. It doesn’t matter what army the accused belong to, what banner they fly. What matters is whether the facts of the case satisfy the “elements of the crime.”

The ICC proceedings should offer the MILF an opportunity to demonstrate its bona fides by surrendering the suspects among its ranks. Apparently the MILF has refused to do so. It should realize that by taking part in a cover up, it actually invites the application of the principle of command responsibility, so that even if actual killers are not identified, its commanding officers can be punished if they “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.” In other words, the MILF makes the job easier for the prosecutors because it is easier to lay the blame on the commanders rather than trace the actual perpetrators of the crime.

Reports say that the MILF has called for an impartial investigation by an international body. As they say, be careful what you wish for. The ICC prosecutor is precisely one such independent and impartial investigator. Should President Aquino actually refer the case for investigation by the ICC, the MILF shouldn’t complain.

It is strange that the Philippines has not seen fit to make use of the ICC, a treaty that we ratified barely two months ago. But even if the Philippine government feels paralyzed and hesitates to exercise its powers under the Rome Statute, it’s not as if we’re all helpless. For sure, under the Statute, a “trigger mechanism” for ICC jurisdiction is referral by a state-party like the Philippines. But if for some reason the Philippine government balks at this option—and that reason, I really would like to know—that shouldn’t stop the ICC from hearing the case. There is another trigger, namely, the ICC prosecutor’s “motu proprio powers” to pursue a case on his own, in which case he may “seek additional information from … non-governmental organizations, or other reliable sources.”

That should leave the Philippine government enough wiggle room to talk peace without forsaking justice.

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