Tag Archives: Duterte

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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Filed under Duterte, Human Rights, ICC, ILC, Impunity, Sovereign Immunity

A (post)modern-day Vandal contra the Church

President Rodrigo Duterte’s vituperation against the Roman Catholic Church is unprecedented in recent Philippine political history. Not even the late dictator Ferdinand Marcos’s record matches it.Yet, in a predominantly Catholic country, his outrageous display of irreligiosity appears to perturb only a few.

His harangue hits at the heart of Orthodox Christianity: the doctrine of the Trinity and the crucifixion of Christ. It highlights the biggest catechetical challenge as yet to the Filipino Church, even as it finds itself in yet another crossroads.

In the broader context, the Francis Papacy has exposed seismic rifts between Church progressives and traditionalists. His “Amoris Letitia” threatens to tear the very fabric of the Church’s existence; indeed, conservative Catholic leaders see his exhortation as an immoral rewriting of marriage, and a door through which liberal ideas are smuggled into the Church.

Too, the epidemic of pedophilia in the American Church and elsewhere that has devoured thousands, and Francis’s failure to decisively address it, has served to further undermine the global Church’s integrity as a clear moral voice amidst a postmodern amoral wilderness.Worse, the Vatican itself has been wracked by revelations of high immorality that would make even libertines blush.

Here, post-EDSA 1986 politics saw Catholic bishops playing footsie with the powers-that-be (think Pajero bishops!). This, even as they actively opposed the government’s program to promote family planning in the country and prosecuted such a harmless soul as Carlos Celdran for his schoolboy antics.

All we see now is a Catholic Bishops’ Conference of the Philippines reluctant to speak a common voice of conviction, not a body of believers a prophetic Cardinal Sin once led, although the recent bombing of the Jolo Cathedral, which killed 21 Catholic faithful and wounded nearly a hundred others,has forced them to issue a pastoral letter decrying the “cycle of hate” that has gripped the country.

The pastoral letter, issued at the close of the CBCP’s 118th plenary assembly, also made an oblique reference to the President’s anti-Catholic vitriol, but said they are responding to it with “silence and prayer.” At least, for now.

To my Protestant eyes, what we have is a Filipino Church at its politically weakest.

An astute politician, the President knows this. Like Arian Vandals besieging St. Augustine’s beloved city of Hippo and its Latin Christian culture, he is exploiting the crises facing the Church to whittle away at the foundations of what is potentially the sole unified opposition to his bloody drug war, and yes, his vision of the future.

He also understands that this is no longer the time of Thomas Aquinas, who, at the height of Christendom in Europe, taught that the Church has a moral right to excommunicate and depose from power a ruler who is leading the faithful away from the gospel.

But it is beautiful to see such weakness of the Church typified by Caloocan Bishop Pablo Virgilio David, a soft-spoken French-trained bible scholar who has chosen to walk with the poor and the powerless of his diocese.

Or by Sister Maria Juanita Daño, RGS, who has lived through the horrors of Oplan Tokhang in San Andres, Bukid with her fellow parishioners. Bishop Ambo and Sister Nenet exhibit the poverty of spirit of the Sermon on the Mount.Or by the Vincentian fathers who have given refuge to the families of victims of the deadly scourge of tokhang that has decimated scores of lives in urban poor communities in Quezon City.

They also reaffirm a central message delivered by Pope Pius XII from the Vatican on Christmas Day, 1942. In his address, Pius XII said every human power has a duty to give back to the human person “the dignity given to it by God from the very beginning.” This, said Pius XII, is only possible where people once again recognized a divinely instituted juridical order, one “which stretches forth its arm, in protection or punishment, over the unforgettable rights of man and protects them against the attacks of every human power.”

These brave words said at the height of the Nazi onslaught was “a critical turning point” for the idea of universal human rights, subsequently defining postwar history and shaping governments in Europe, argues Harvard law professor Samuel Moyn’s book “Christian Human Rights”(2015).

In 1945, diplomats drafted a Universal Declaration of Human Rights that echoed Pius XII’s words, saying the Declaration intends “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.”

The Filipino Church badly needs to rediscover this legacy for such a time as ours.

This essay was first published by Verafiles  on January 31, 2019 here.

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Filed under Freedom of Religion, Human Rights, Philippines, political theology, Politics, Religion, Uncategorized

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