THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
By
SENATOR MIRIAM DEFENSOR SANTIAGO

(Sponsorship speech as Chair of the Subcommittee on the Rome Statute
of the International Criminal Court, on 16 August 2011.)

Mr. President, distinguished colleagues:

On behalf of the Committee on Foreign Relations, I have the honor to seek Senate concurrence with the ratification of the Rome Statute of the International Criminal Court, by means of Senate Resolution No. 546, under Committee Report No. 52.

Rationale

The Rome Statute of the International Criminal Court is arguably the most important institutional innovation since the founding of the United Nations. This complex and detailed international treaty provides for the creation of an international criminal court. Under Article 1: "It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern . . . and shall be complementary to national criminal jurisdiction." (Emphasis added.)

The Rome Statute is a benchmark in the progressive development of international human rights.

Historical Background

Philosophy and religion have given rise to some fundamental values of the human spirit. Among these values is the idea that there must be a common denominator of behavior, "even in the most extreme circumstances of brutal armed conflict."

Hence, national courts have prosecuted war crimes. But prosecution is ineffective, when the suspects are still in power, and exercise power over their victims. Hence, the prosecution of war crimes is generally limited to the defeated forces and not to the winning forces, except sometimes to rogue combatants. In this case, national justice systems are unable to be impartial.

This naturally gave rise to concepts of international prosecution for humanitarian abuses. The first significant codification of laws of war in an international treaty consisted of The Hague Conventions of 1899 and 1907. They became a source of the law of war crimes, and gave rise to offspring known as Hague Law.

At the end of World War 1, the Allies adopted the Versailles Treaty. It formally arraigned the defeated German emperor and pledged the creation of a special tribunal for his trial. It also recognized the right of the Allies to set up military tribunals to try German soldiers of war crimes.

Subsequently, at the end of World War 2, the four major powers consisting of the UK, France, the US, and the Soviet Union organized the London Conference. In 1945, they signed an Agreement to prosecute and punish major war criminals of the European Axis, and established the Charter of the International Military Tribunal.

One tribunal held office in Nuremberg, where Nazi war criminals were convicted of crimes against humanity for atrocities committed against the Jewish people of Europe. Another tribunal held office in Tokyo. Whereas in Nuremberg, the four major powers appointed the judges, in Tokyo the judges came from eleven countries, including India, China, and the Philippines.

In 1948, the UN General Assembly adopted the Convention for the prosecution and punishment of the crime of genocide. This 1948 Convention, Article 2 which defines genocide, has been copied intact in the Statute of the International Criminal Court, where it is found in Article 6.

The Genocide Convention mandated an international criminal court, and accordingly work on this project began at the International Law Commission. The ILC is a group of experts appointed by the UN General Assembly and charged with the codification and progressive development of international law. In 1954, it submitted a draft code. But the General Assembly did not immediately work on the proposal. Instead, the General Assembly adopted a definition of aggression.

At this point, the Security Council voted to create two ad hoc tribunals, one for the former Yugoslavia and another for Rwanda. They shared virtually identical statutes over certain institutions.

In 1998, pursuant to two General Assembly resolutions, a diplomatic conference on the establishment of an International Criminal Court convened in Rome. It was attended by some 160 states, as well as by international organizations and non-governmental organizations. The most powerful camp among the delegates were the so-called "like-minded" states, which opposed the 1994 draft by the International Law Commission, and which also opposed the views of the permanent members of the Security Council.

The Philippines was a member of that "like-minded" caucus of states. They successfully upheld the following principles:

• Inherent jurisdiction of the Court over the so-called "core crimes" of genocide, crimes against humanity, war crimes, and aggression;

• Elimination of a Security Council veto on prosecution;

• An independent prosecutor with the power to initiate proceedings motu proprio; and

• Prohibition of reservations to the Statute.

The provisions of the Statute were adopted without a veto, by consensus in the working groups. On the insistence of the United States, the vote taken resulted in: 120 in favor, 21 abstentions, and 7 votes against. Among those opposed to the Statute were the US, Israel, and China.

States were given until 2000 to sign the Statute. Among those who signed were the US, Israel, and the Philippines. To harmonize Philippine law with the Statute, in 2009 the Philippines passed R.A. No. 9851, entitled "An act defining and penalizing crimes against international humanitarian law, genocide, and other crimes against humanity, organizing jurisdiction, and designating special courts."

Under Philippine law, the Regional Trial Court has jurisdiction over these crimes, regardless of where the crime is committed, provided any one of the following conditions is met:

• The accused is a Filipino citizen; or

• The accused, regardless of citizenship or residence, is present in the Philippines; or

• The accused has committed the crime against a Filipino citizen.

The Statute entered into force in 2002, after 60 states had become parties. As of 22 June 2011, 116 states are now parties to the Statute. The Philippines, which signed the treaty in 2000, took until this year for the President to ratify it.

In 2010, the Philippines attended as an observer the Review Conference of the ICC in Kampala, Uganda. The review conference was successful in reaching a consensus regarding three amendment proposals to the Rome Statute, as follows:

1. Extension of the use of certain weapons as war crimes in non-international conflicts.

2. Agreement not to delete Article 124, but to review it in five years. Article 124 allows a state, upon ratification of the Rome Statute, to exempt their nationals from the jurisdiction of the Court over crimes for a seven-year period.

3. Adoption of amending provisions for the crime of aggression. The definition agreed upon for the crime of aggression criminalizes the use of armed force by one state carried out in contravention of the UN Charter. Individuals responsible for such unlawful acts of war may be prosecuted before the Court, subject to the fulfillment of certain jurisdictional criteria.

The Review Conference determined that the court will not be able to exercise jurisdiction, until 30 states have ratified the new crime of aggression amendments. In addition to the 30 minimum ratifications, states parties will have to make a positive decision to activate the Court's jurisdiction after 1 January 2017.

Salient Features of the Rome Statute

The Court will act only as a court of last resort. This means that the Court acts only in exceptional cases, where a country has failed to bring justice because it is unwilling or unable to investigate and prosecute those who have the highest responsibility for the most serious crimes of concern to the international community.

In brief, the salient features of the treaty are as follows:

• Principle of complementarity. Under the Statute Article 17, the Court will deem as inadmissible a case that is already being investigated or prosecuted by a state that has jurisdiction over it, unless the state is unwilling or is unable genuinely to carry out the investigation or prosecution.

• Subject matter of Court jurisdiction:

1. International crimes provided for, under customary international humanitarian law;

2. Genocide, crimes against humanity, war crimes, and crimes of aggression.

• Persons are individually responsible, while minors and states are not.

• Under the Statute Article 27, official capacity is irrelevant. The accused may be a head of state, member of the national legislature, or government official. Possible exemptions are agreements between sending and receiving states, such as the Visiting Forces Agreement and other status of forces agreements with other states.

• Under the Statute Article 28, the military commander assumes command responsibility for crimes committed by forces under his command and control, under the following requirements:

1. The commander knew or should have known that the forces were committing or about to commit such crimes; and

2. The commander fails to take all necessary and reasonable measures within his power to prevent their commission.

Reasons for Concurrence

Reason No. 1. The Philippines has a long-standing commitment to human rights and humanitarian law. Starting from 1945 when the Philippines declared independence, our country has recognized the compulsory jurisdiction of the International Court of Justice. In 1948, the Philippines became a party to the Universal Declaration of Human Rights. In 1949, the Philippines became a party to the 1949 Geneva Convention.

The Philippines is a party to the major human rights instruments:

• International Covenant on Civil and Political Rights

• International Covenant on Economic, Social, and Cultural Rights

• Convention Against Torture

• Convention on the Elimination of Discrimination Against Women

• Convention on the Elimination of Racial Discrimination

• Genocide Convention

In addition, the Philippines is a party to the major international humanitarian law instruments, as follows:

• The four Geneva Conventions to protect civilians, POWs, the injured and the sick on land and on sea.

• The Second Protocol to Non-International Armed Conflicts

Reason No. 2. The Court respects the sovereignty of its member states through the principle of complementarity. The Court will assume jurisdiction only over "the most serious crimes of international concern."

Reason No. 3. While the International Court of Justice punishes only states, the International Criminal Court punishes individuals. Thus, there is a shift away from state responsibility to individual criminal responsibility. The Rome Statute depoliticizes the enforcement of humanitarian law. It does not pass judgment on the states, its political ideology or group, or its army in conflict.

Reason No. 4. The Statute restores the so-called legal symmetry between conflicting parties to an armed conflict. There is so-called legal asymmetry, when only the state is a party to a human rights convention. Thus, only the state, but not the rebels, is bound to respect human rights.

By contrast, international humanitarian law can bind both parties to an armed conflict. In the Philippines where we have a non-international armed conflict, international humanitarian law will apply to both the government and the rebel group. Under the Rome Statute, the Court may try any person who commits a war crime or a crime against humanity, whether that person is a member of the Armed Forces of the Philippines or the New People's Army.

Reason No. 5. The Rome Statute, in holding Filipino soldiers to the higher international standards of military conduct, will promote a sense of professionalism in the armed forces, and a sense of antipathy to the culture of impunity.

Reason No. 6. By concurring with the Rome Statute, the Philippines will help to strengthen institutions like the ICC to end impunity, and affirm the position of the Philippines as a leading human rights advocate in Asia. The culture of impunity in the Philippines is evidenced by the torrential avalanche of corruption cases in the three branches of government, the military, the police, official gambling establishments, and even in the private sector, notably including media outlets and advertising agencies that insist on exposing the public to the deadly threats of giant billboards during typhoon season. The perpetrators should be haled to justice.

Advantages of Ratification

Relevant governmental agencies who endorse concurrence are: Department of Foreign Affairs, Department of National Defense, Department of Justice, Commission on Human Rights, Armed Forces of the Philippines, Office of the Solicitor General, and National Security Council. The Philippine National Police expressed reservations, but your Subcommittee believed they are not sufficient to vitiate concurrence.

The advantages of ratification are:

1. The Philippines would be able to influence the development of the Rome Statute and the ICC.

2. The Philippines would qualify to nominate a Filipino as one of the 18 judges of the ICC.

3. It will put the Philippines in a better position to protect Filipino overseas, when they might suffer crimes against humanity in pursuing work abroad.

4. It will keep the Philippines abreast of contemporary developments in international relations.

It has been said that: "The ICC is perhaps the most innovative and exciting development in international law since the creation of the United Nations." As a result of the human rights agenda, the Rome Statute is one of the most complex international instruments ever negotiated. It is a creative combination of the concept of state sovereignty and the concept of criminal law.

I humbly recommend that this Senate should concur in the ratification of the Rome Statute.