Category Archives: Impunity

The recent ILC report on immunity of foreign officials before national courts

The curious case of Omar al-Bashir, recently ousted President of Sudan, has been a sore point to the International Criminal Court at least, until his ouster from power in April last year.  Wanted for a host of crimes cognizable by the ICC, he had eluded arrest warrants, with various  states – and the African Union itself – refusing to enforce them, on the ground that as a head of state, he enjoys immunity from suit and process.

Jordan’s failure to do the same gave rise to a case before the  ICC Appeals Chamber on that very question, and in May last year, just a month after the Sudanese dictator was removed from power by peaceful protests over corruption charges, the Chamber issued a ruling that effectively removed any claim to immunity by foreign leaders with respect to processes conducted by an international criminal tribunal tribunal such as the ICC. Controversially, the Chamber held that under customary international law, no such immunity may be interposed as an objection as far as international criminal tribunals are concerned.

That conclusion sparked something of an uproar in the international criminal law academia. See here, here, and more recently, here.

The International Law Commission has just weighed in on the question in its Eighth report on immunity of State officials from foreign criminal jurisdiction, submitted by Special Rapporteur Concepción Escobar Hernández. Paras. 25-32 of the Report are apropos.

And the ILC essentially supports the conclusion reached by the ICC Appeals Chamber in the al-Bashir case.  As the report puts it, the following summarizes the Chamber’s findings of immunity of foreign officials in relation to international criminal tribunals:

(a) National tribunals and the International Criminal Court are subject to different rules with regard to immunity: while immunity of State officials may be invoked before a foreign criminal court, it cannot be invoked before the Court;
(b) Heads of State enjoy immunity before the national criminal tribunals of a third State, but not before international criminal tribunals.

(c) States parties to the Rome Statute have an obligation to cooperate fully with the International Criminal Court, including by arresting and surrendering persons accused of committing crimes that fall within the jurisdiction of the Court;
(d) The obligation to cooperate is linked to article 27 of the Statute, which creates both vertical effects (jurisdiction of the International Criminal Court) and horizontal effects (jurisdiction of national courts);
(e) In complying with the Court’s request for cooperation, “the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of the Court’s jurisdiction.

The special rapporteur notes it is the last three paragraphs above that “may have some bearing on the present topic, particularly on the very concept of foreign criminal jurisdiction.” 

The Special Rapporteur stresses that indeed her work centers on immunity of foreign officials before national courts, but the Commission may not as well disregard the important work of international criminal tribunals in the fight against impunity, citing the International Court of Justice’s ruling in Arrest Warrant of 11 April 2000 case, which, in her view, “identified such tribunals as an alternative means of avoiding impunity in cases where the criminal courts of a State cannot exercise jurisdiction.”

She continues that “this would allow a case to be referred to an international criminal tribunal as a way of ensuring that the immunity of State officials from foreign criminal jurisdiction is respected and, at the same time, that international criminal responsibility for the commission of certain categories of crimes is clearly established.”

Thus she does not see a conflict in the jurisdiction of foreign courts and international criminal tribunals with respect to foreign officials.  Where I sit, I read her as saying that the complementarity principle enshrined in the Rome Statute would be relevant here specifically for states that are parties to the ICC.  In the case of states that are not parties to the ICC, there is a general obligation to assist international criminal tribunals fulfill their work, under customary international law (albeit she doesn’t expressly refer to it). 

Thus, she recommends a draft Art. 18 in the proposed Articles on immunity of State officials from foreign criminal jurisdiction in this wise:  “The present draft articles are without prejudice to the rules governing the functioning of international criminal tribunals.”

Elsewhere, I have written about the relevance of the al-Bashir ICC Chamber ruling in regard to the bloody drug war launched by President Rodrigo Roa Duterte.


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Void ab initio: A legal history

“He who has real power is also capable of determining concepts and words,” wrote Nazi constitutional theorist Carl Schmitt. “Caesar dominus est supra grammaticam (Caesar is also the lord of grammar).”

Schmitt is studied not as a grammar Nazi but for the import of his most famous words in the very first line of his “Political Theology” (1922): “Sovereign is he who decides on the exception.” A true sovereign wields unchecked power to name friends and enemies of the state.

Solicitor General Jose Calida may not have read Schmitt in law school, but his use of the Latin maxim void ab initio in Sen. Antonio Trillanes IV’s amnesty case is textbook Schmittian grammar. It is what the President says it is.

In 1941, the German Jewish émigré Ernst Fraenkel published in the United States his book, “The Dual State,” showing how the Nazis applied Schmitt’s ideas to seize control of German administrative and judicial bodies.

The legal scholar described two contrary features of Hitler’s government: There was the “normative state,” the formal constitutional norms for civil and political rights, and the “prerogative state,” with its arbitrary exercise of power. Fraenkel’s study shows the gradual surrender of the normative state to the prerogative state by German lawyers, legal scholars and judges after Hitler declared martial law on Feb. 28, 1933.

For one, German courts considered martial law a political act outside their jurisdiction. Schmitt argued that the grounds for martial rule in Article 48 of the Weimar constitution cannot limit the Führer’s own prerogatives. If the constitution provides but two grounds for martial law—rebellion or invasion—he may disregard it. Or he may hold that terrorists who lay siege to Berlin are committing rebellion, even if it means treating them as a political group, as long as he gets his martial law.

Hitler had argued that he is the societal order. Thus, he who opposes the president opposes law and justice. Yet many believed him. Every governmental action must align with the goals of National Socialism, a “religion without a god.”

In 1929, professor Carl Bilfinger wrote that international law is limited by reservations on national security. Schmitt agreed, saying the reservations are more important than the treaty. Both scholars would be fine with the Philippine withdrawal from the International Criminal Court as a sole executive prerogative.

There was only muted resistance to this system, like a lower court ruling that a composer is entitled to royalties for his music aired by radio stations, rejecting arguments that the stations — since they also aired Nazi propaganda — were exempt from royalty fees.
Otherwise, democratic institutions toed the line. Across Germany, the prerogative state reduced the rule of law to its arbitrary and irrational diktat.

Even civil servants were denied access by the courts to their own official records in disputes with their superiors (sounds familiar?). A 1935 decision of the Prussian Supreme Administrative Court abolished Article 129, Section 3 of the constitution guaranteeing the right, as it contradicted the Nazi “leadership principle.”

The Prussian Supreme Court also held that all religious activities must meet government regulations; if not, believers may be guilty of stoking “indirect Communist danger.”
In 1938, another court convicted a minister of breaching the peace for praying for prisoners held by the Nazis. Fraenkel noted how the highest court of Bavaria erased the fundamental principle of double jeopardy, punishing anew a man who had already served his sentence for “high treason.” The principle is merely procedural, it so held.

All eyes are now on the Makati City Regional Trial Court Branch 148, and the Supreme Court: Is ne bis in idem, as the principle is said in Latin, also void ab initio, as the President says?

By 1936, “the resistance of traditional law-enforcing bodies was weakened.” We all know what happened to German Jews — they lost their right to property, and their very own lives. For, by simply being born into a race not of their own choosing, they rendered their right to exist void ab initio.

This was first published in the Philippine Daily Inquirer, October 3, 2018.

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Filed under Carl Schmitt, Ernst Fraenkel, Human Rights, Impunity, legal theory, martial law, Nazi War Crimes, political theology, Public Interest, Supreme Court

Republic’s Interregnum: Legal Lacunae in the State of Exception

Going over Republic v. Sandiganbayan’s ponencia by J. Carpio in class last night, I was struck by the abnormal situation it had to cope with and the way in which the Court dealt with it. For one, we have to realize that the 1987 Charter is a constitution that expressly carves out a state of exception for a series of acts committed by the revolutionary government — through Jovito Salonga no less! –in the constitutional interregnum.

The interregnum was our Schmittian moment in a deeply paradoxical way: we ousted the martial law regime but resorted to some of its tactics to make sure the political gains already won will not be lost again. Indeed, in the 1987 Charter, we have a constitution that expressly sanctions unconstitutional acts committed in the space of the interregnum s when there was no operative constitution!

Section 26, Article XVIII,  states:

SECTION 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.

A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided.

As it were, it co-exists happily with Art. III, the Bill of Rights.

Second, the way in which J. Carpio directly applied international law into a domestic question of unreasonable search and seizure, purportedly because there was no Bill of Rights to speak of, with the throwing out of the 1973 Marcos constitution by the People Power Revolution.

It’s as if –among other things — nearly nine decades of jurisprudence laying down due process protections did not exist, the doctrine of stare decisis ceased to apply,  and Art. 8 of the Civil Code also went out the window along with the 1973 Constitution. Dean Magallona’s critique of this decision was spot on, if only it wasn’t cryptic in parts. Nevertheless, that offending clause in the 1987 Charter is more Agamben than Schmitt to me.

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Filed under Human Rights, Impunity, International Law, martial law, Philippines, Public Interest, State, Tyranny

On the new Japan-South Korean agreement on the Comfort Women

 

Malayalolas

by Harry Roque and Romel Regalado Bagares, counsel for the Malaya Lolas

Why is Japan settling the Comfort Women issue only with South Korea and not  with the Philippines or any other country whose citizens fell victim to the rapacious Japanese Imperial Army?

Are Filipinas raped and ravaged by the Japanese Imperial Army during World War II any less human than their South Korean counterparts?

And  what is our government doing about the case of the Filipino Comfort Women whose claims against Japan have remained pending?

We raise these questions in the wake of recent reports that the Japanese and South Korean governments have finally reached an agreement to settle the 70-year old issue of the South Korean comfort women – or, in the case of the latter, girls and women forced to have sex with Japanese soldiers from the 1930s until the end of World War WII.

According to the agreement the Japanese government will offer a one-time final apology and to pay 1 billion yen ($8.3m) to provide care for victims through a foundation.

While we would like to see details of this agreement  show an official acknowledgment of responsibility by Japan – because precisely, the previous apologies issued by Japan do not appear to be on behalf of the  State but were cast as if there was no official policy implemented to forcefully conscript Asian women as sex slaves – news of this agreement only makes the insult against Filipinas who suffered the same fate sharper and deeper.

It also underlines the Aquino government’s continuing refusal to abide by its obligation under international law to provide an effective remedy against its own citizens who had been brutalized by the Japanese Imperial Army during World War II.

The Filipino Comfort Women are dying one by one. Each day that they are ignored by their own government, any hope of official acknowledgment and reparations grows dimmer as the shadows of old age and mortality cast a dark pall on their faces.

They should not be used as pawns by states in the geopolitical controversies of the day,  as we fear is happening in regard to the Filipino comfort women. What we mean is that victims of horrendous human rights violations should not be used by our government as a leverage in its talk with Japan for support against China over the West Philippine Sea controversy.

Today, we hear of reports of more official Japanese government aid to the Philippines in the form of patrol boats to the Philippine Coast Guard and soft loans worth hundreds of millions of dollars for various infrastructure projects.

But these official aid initiatives will not erase Japanese official responsibility over the sexual slavery its own soldiers have subjected many Filipinas when they invaded the Philippines 70 years ago.

Background to the Malaya Lolas case

In 2004, the Center for International Law (Centerlaw) filed a petition in behalf of 70 plus members of the Malaya Lolas group, who survived the Mapanique, Tarlac siege by the Japanese Imperial Army during World War II. In the petition, the Malaya Lolas charged that they were victims of systematic rape and sexual slavery committed by the Japanese, and they asked the High Court to compel the Philippine government to espouse their claims against Japan. On April 28, 2010, the Philippine Supreme Court dismissed the petition.
The Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism, it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War II have no further legal remedies.

A Motion for Reconsideration and a Supplemental Motion for Reconsideration were subsequently filed by the Centerlaw on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”

On March 27, 2013, Centerlaw filed a manifestation asking the Supreme Court (SC) to consider a 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial Malaya Lolas case. This was noted by the Court in a resolution issued on April 11, 2013.

Centerlaw also filed a Motion for Leave to File Petition for Intervention on behalf of the European Commission on Human Rights (ECCHR). The Motion was denied by the Supreme Court stating that intervention can no longer be had once the case has been submitted for resolution.

In August 5, 2014, the Supreme Court denied the Motion for Reconsideration and Supplemental Motion for Reconsideration filed by Centerlaw on behalf of the Malaya Lolas.

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P-Noy and human rights

By Romel Regalado Bagares

Reuters posted recently a story assessing President Benigno Aquino III’s human rights record two years after he was elected into office on a promise of clean government and concern for human rights. The focus is on the gains or the lack of it achieved by the Aquino administration in the prosecution of the November 23, 2009 Maguindanao massacre.  Click here to read the story, which also carries a quote from me.

Human Rights Watch also issued a report on the Aquino administration’s handling of the human rights situation in the country, and the verdict is not so nice, to say the least.

Photo credits: Human Rights Watch

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A nightmare from which we’re all trying to awake

By Romel Regalado Bagares

 

“For values to change,” Gerald Gahima, the chief prosecutor for the Republic of Rwanda once told New Yorker correspondent Philip Gourevitch in the aftermath of a genocide that killed 800,000 people within a short period of a hundred days, “there has to be an acknowledgement of guilt, a genuine desire for atonement, a willingness to make amends, the humility to accept your mistakes and seek forgiveness. But everyone says it’s not us, it’s our brothers, our sisters. At the end of the day, no one has done wrong. In a situation where there has been gross injustice and nobody is willing to seek forgiveness, how can values change?”

Gourevitch records this conversation in his heart-rending book  We Wish to Inform You that Tomorrow We Will Be Killed With Our Families: Stories From Rwanda (1998).

Meanwhile, Michael Ignatieff wrote in his 1997 book The Warrior’s Honor: Ethnic War and the Modern Conscience these pained lines –What does it mean for a nation to come to terms with its past? Do nations have psyches the way individuals do? Can a nation’s past make a people ill as we know repressed memories sometimes makes individuals ill? Conversely, can a nation or contending parts of it be reconciled to its past as individuals can, by replacing myth with fact and lies with truth? Can nations ‘come awake’ from the nightmare of their past, as Joyce believed an individual could?”

Ignatieff, quoting the Irish writer James Joyce as he reflects on the horrors he had witnessed in Central Europe in the genocide of the 1990s as a journalist, speaks of the “nightmare from which we are all trying to awake” – the deep wounds inflicted by a history of humanity’s inhumanity to its very own that, as it were,  continue to fester, that refuse to close, that do not heal. Indeed, what does it mean for a nation to come to terms with its own past? (At the time, Ignatieff was a correspondent for the New Yorker; these days, he is Liberal Party member of the Canadian Parliament).

The two writers’ words come to mind when I think of the sad and arduous journey of the Malaya Lolas, who are among the hundreds of Filipinas  – or the so-called “Comfort Women” –forcibly conscripted as sex slaves by the Japanese Imperial Army during World War II.

Made victims twice over by a plagiarized and twisted ruling of the Philippine Supreme Court dismissing their demand for redress in the controversial case of Vinuya v. Executive Secretary, they very recently hogged the headlines once again  following a 38-10 vote by the House Committee on Justice, which found the majority opinion’s reporting magistrate or ponente in the said case, Associate Justice Mariano C. Del Castillo,  answerable in an impeachment proceeding for betrayal of public trust.

As my co-counsel in the case, Prof. Harry Roque, notes, the impeachment proceeding against Justice Del Castillo and the Malaya Lolas’s pending motion for reconsideration before the Supreme Court, “are the last remaining legal attempts to obtain justice for these victims.”

When we filed the case in 2004, the Malaya Lolas numbered around 70.  Today, there are fewer and fewer of them.  In their younger days, they suffered unspeakable terrors and horrors of the body and soul; today they are in the twilight of their years –  many of their fellow victims and survivors  have in fact, perished without seeing the  coming of dawn when justice is theirs. They continue to suffer because their own government has refused, in the last 60 years or so, to lift a finger, despite a clear mandate under international law as well as the dictates of human conscience, to take up their cause.

Worse, it took our Supreme Court nearly six years to rule on their claim, and when it did so, its reporting magistrate had to resort to plagiarism and misrepresentation to justify the High Court’s decision to deny them justice, saying that alas, while indeed their horrendous suffering is undeniable,  no legal remedy is available to them.

Ironically, the South Korean Supreme Court –  using the very same arguments we had deployed in Vinuya – would subsequently rule as unconstitutional the South Korean government’s refusal to take up the case of their own Comfort Women against Japan.

This is what the “values” that Rwanda’s Chief Prosecutor speaks of are all about: how much importance we place on the vicissitudes of  historical memory upon the progress of our national life; the kind of public, and yes, official discourse, we make in regard to historical injustices committed against our people , and by logical extension, against the idea of the “nation” – what Ignatieff calls “a vast reckoning  between generations.”

For the historian counsels us that such a reckoning only happens when a “publicly sponsored discourse gives it permission to happen.”

But the continuing effect of the Philippine government’s refusal to adopt the claims of Filipino Comfort Women is to condone and excuse the perpetration of rape and sexual slavery as crimes against humanity; inevitably to relegate, without resolution, these crimes to the annals of history; and, ultimately to condemn through governmental indifference, ignorance, and deceit, the Filipina Comfort Women, to oblivion.

This is how we as a nation must come to terms with our past – not by ignoring or erasing the Comfort Women’s painful existence from national memory but by fully acknowledging the suffering and shame they have been subjected to all these years, and above all, by fighting for justice long denied them.

 

___________

This essay first appeared in my weekly column for the Iloilo City-based The News Today.

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Impunity for Nazi War Crimes

By Prof. Harry L. Roque, Jr.

The International Court of Justice recently promulgated a judgment which calls into question both the relevance and function of international law. Unwittingly, it  declared that Nazi Germany is entitled to impunity for acts of forced labor that it committed during World War II.

In its February 3, 2012 decision in the case of Germany vs. Italy, the court ruled that the principle of sovereign immunity from suits is a customary norm of international law that cannot be infringed unless waived by the state. This immunity subsists even if the claim against it is for violation of a peremptory norm, referred to as “jus cogens” in international law. It also ruled that state assets are also immune from execution

The case arose because of a series of Italian domestic court decisions awarding civil damages against Germany for forced labor committed during World War II.  While Germany has acknowledged that it committed grave breaches of international humanitarian law during the war, it nonetheless insists that claims against it for damages should be brought pursuant to its domestic law authorizing payment of compensation to individuals for these breaches and before German courts. Unfortunately, German courts barred compensation for forced labor for individuals with the status of a Prisoner of War. This is because the Germany insists that under the Geneva Conventions, POWs may be compelled to work by the detaining power.

In a case involving Luigi Ferrini who claimed to have been forcibly deported from Italy to Germany and made to work in a munitions factory, the Italian court ruled that Germany may not invoke state immunity for the commission of an international crime which at the same time, is covered by a jus cogens prohibition. The Court then awarded Ferrini damages and sought to enforce its decision against a real property owned by Germany in Italy. Hence, Germany’s resort to the ICJ.

The ICJ upheld Germany’s claim of immunity by ruling that under customary international law, the rule remains that a state is absolutely immune from suits for acts committed by its military troops in the territory of the forum. Furthermore, it stressed that under customary law, a violation of a jus cogens norm, even if acknowledged, as it was by Germany, cannot result in waiver of state immunity. In both points, the court enumerated a long list of state practice in the form of legislation and court decisions indicating that other than for Italian and Greek judicial decisions, the principle of state immunity as derived from the principle of sovereign equality of states remains to be firmly rooted in international law.

In ruling in the manner that it did, the ICJ  applied an already disregarded notion that international law is only about the application of legal rules. In fact, bulk of the Court’s opinion was devoted to an examination of what the law is, assuming perhaps that what is may be divorced from why it is law and what it seeks to accomplish. International law is law only because states accept it as such. While states may have varying reasons why they acknowledge it to be law, the fact remains that like all laws, international law forms part of normative system. It prescribes conduct deemed beneficial to all of humanity and prohibits conducts that are otherwise.

This means that in the application of rules, the Court should have considered what is more beneficial to humanity: the cold application of the principle of sovereign immunity or the primacy of protecting civilian and POWS in times of armed conflict. While it is true that sovereign equality of states is a foundational principle of the law, the same is true also of the principle that that human rights have also ceased to be purely domestic issue.

The fact that the ICJ gave primacy to the principle of sovereign immunity from suits ignores why these rules exist in the first place; that is, to protect the interests of individuals and not the interest of an artificial being that is a state. As some have noted, international law protects for instance, the environment—not because the ocean or the air should be protected as such. We do so ultimately because human beings require clean water and air.

True, the Court expressly said that its ruling does not affect the liability of state agents when they themselves commit egregious acts. But why should there be a distinction? Precisely because a state can only act only though its agent, there should be no distinction hence between suits against the state itself and against its agents.

The Court also engaged in face-saving when it said that its decision is without prejudice to the liability of the German state for the commission of an internationally wrongful act. But what use is this when victims are bereft of a remedy under domestic law? Who will authorize the award of compensation to the victims when current state practice still deny individuals a standing to bring claims under international law? Certainly, similar claims to that of Ferrini’s were rejected by the European Court of Human Rights on jurisdictional grounds.

There is clearly more merit in the lone dissenting opinion written by a former President of the Inter-American Court of Human Rights Judge Antonio Trindande: “The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labor.”

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