Tuesday, October 29, 2024
Septuagenarian Notes: CHAPTER 3 ROME STATUTE AND ICC
NOTA BENE: The audacity of Rodrigo Duterte and his Davao City criminal syndicate to launch a deadly war on drugs premised on extrajudicial killings stemmed mainly on their collective ignorance that an international criminal justice system has evolved and is continue to evolve.I asserted that n my book, "KILL KILL KILL Extrajudicial Killings in the Philippines; Crimes Against Humanity v. Rodrigo Duterte Et Al." Duterte and his cohorts hardly knew that the International Criminal Court (ICC) and that the Philippines was a member of that international tribunal when he was elected. This chapter explains what the ICC is and how it has evolved to be the champion of international justice.
CHAPTER 3
ROME STATUTE AND ICC
“The tyrant will always find a pretext for his tyranny.”- Aesop
SINCE the Nuremberg Trials of 1945, the world has known and understood the necessity for profound changes to prevent the repetition of the two extremely bloody global wars. In his closing arguments at the end of the Nuremberg Trials, Chief Prosecutor Robert H. Jackson, the U.S. Supreme Court magistrate, who took a leave of absence in the High Court to prosecute the top Nazi war criminals, described the first half of the last century as unprecedented in destruction in human history. Unless we recover in the second half, human civilization would be doomed, according to Jackson. Waxing an unparalleled combination of eloquence and wisdom, Justice Jackson said:
“The present century will not hold an admirable position, unless its second half is to redeem its first. These two-score years in this Twentieth Century will be recorded in the book of years as one of the most bloody in all annals. Two World Wars have left a legacy of dead, which number more than all the armies engaged in any war that made ancient or medieval history. No half-century ever witnessed slaughter on such a scale, such cruelties and inhumanities, such wholesale deportations of peoples into slavery, such annihilation of minorities. The Terror of Torquemada pales before the Nazi Inquisition. These deeds are the overshadowing historical facts by which generations to come will remember this decade. If we cannot eliminate the causes and prevent the repetition of these barbaric events, it is not an irresponsible prophecy to say that this Twentieth Century may yet succeed in bringing the doom of civilization.”
Robert H. Jackson, the magistrate whom U.S. President Franklin Roosevelt named to represent the U. S. in the postwar prosecution of the Nazi war criminals, worked for the enactment of the London Agreement of 1945, which set up the International Military Tribunal and laid down its charter.1 Jackson succeeded in the prosecution of the initial top-ranked Nazi war criminals in the 1945 Nuremberg Trials, leading to the decision that called for the hanging of a dozen top Nazi war criminals. They included Hermann Goehring, Hitler’s second in command, although he committed suicide before his scheduled execution. In brief, Jackson was among the legal luminaries, who had led in laying down the philosophy and due process in criminal prosecution of the war criminals.2
INTERNATIONAL TRIBUNAL. A few years after the Nuremberg Trials, Jackson had a heart attack and subsequently died after several months of illness, adversely affecting his call for the proposed international criminal justice system. It was the diminutive but little-known Benjamin Berell Ferencz, who initially picked up the pieces and led in the advocacy to create an international criminal tribunal. Ferencz proposed this court to prosecute and conduct trials for leaders, who commit crimes of aggression, genocide, and crimes against humanity. His consistent campaign for the creation of the world court contributed in a span of five decades to the successful drafting by the International Law Commission (ILC) of the Rome Statute that has given rise to the 2002 creation of the International Criminal Court (ICC).
Ferencz is the son of a pair of poor Hungarian Jewish immigrants, who avoided persecution by the rising Nazi forces in Europe and settled in New York when he was an infant. A number of advocates emerged from the scene and followed Ferencz’s intellectual leadership and advocacy. Ben Ferencz is the gifted centenarian known in history to have successfully prosecuted Nazi war criminals. After finishing his law degree at Harvard University in 1943, Ferencz became a soldier and went to war in the European theater. He was discharged as a sergeant in 1945. He returned to New York after the war but his superiors told him to go back to Germany to work as part of the legal staff of Telford Taylor, a lawyer, who made a name in the first Nuremberg Trials.
At 27, he was named to be the lead prosecutor of what was described “the biggest murder trial in history.” It was his first trial as a lawyer. It involved the notorious Einsatzgruppen, the roving Nazi extermination squads, which were responsible for more than a million deaths of Jews and other “lesser” mortals (homosexuals, Gypsies, persons with disabilities, mentally challenged, among others) during World War II. Ferencz told his colleagues at the postwar tribunal that the Nazi officers, who led the liquidation squads and functioned as virtual killing machines, had to be put on trial. They agreed on the condition that he served as the chief prosecutor. He succeeded in the sense he was able to get convictions for the leaders of those killing machines. At least four were hanged while most were given jail terms ranging from ten to 20 years.3
His experience at Nuremberg has left lasting impressions on him, prompting him to propose the creation of an international criminal tribunal as his lifetime advocacy. It was not easy because the Cold War between the U.S. and the former Soviet Union prevented its creation for at least fifty years. Ferencz had kept the issue alive amid the bipolar struggle for world domination. The breakup of the former Yugoslavia and the “ethnic cleansing” that took place in the 1990s in the Balkan led to the drafting of the Rome Statute, the multilateral treaty that has created the International Criminal Court. Many seminal ideas that have contributed to its creation came from Ferencz’s fertile mind. Ben Ferencz was one of the advocates, who worked for the ICC’s creation.
‘TOKYO TRIALS.’ Seeking justice from war criminals was not limited in the 1945 Nuremberg Trials. Gen. Douglas McArthur, supreme commander of the Allied forces that defeated Japan, issued a special proclamation on Jan. 19, 1946 to form the International Military Tribunal in the Far East to prosecute and conduct a trial on 28 top leaders of wartime Japan, including current and former prime ministers, foreign ministers, and military commanders. Known as the “Tokyo Trials” or the Tokyo War Crimes Tribunal, this body convened on April 29, 1946 to conduct trials on the Japanese leaders for crimes against peace, conventional war crimes, and crimes against humanity. It was patterned after the Nuremberg Trials, which prosecuted senior Nazi officials. While the Nuremberg Trials engaged on top Nazi officials responsible for the European theater of the Second World War, the Tokyo Trials covered the top Japanese officials responsible for the war in the Asia-Pacific theater.
The Tokyo Tribunal conducted a trial that lasted for two and a half years. It had 11 judges, who came from 11 countries which were at war with Japan: Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, the former Soviet Union, the United Kingdom, and the United States. President Sergio Osmena Sr., who replaced Manuel Quezon, who died while in exile in the U.S. in 1944, sent as the Philippine judge in the military tribunal a prominent prewar lawyer and military officer named Col. Delfin Jaranilla. He was also a former Supreme Court magistrate and solicitor general, who served in the prewar government when the Philippines was a U.S. colony. Jaranilla was also a reserve officer, who was called to duty to defend the Philippines when the war broke out. He fought in Bataan during the early stages of the war and walked in the infamous 1942 “Death March” upon surrender of the combined U.S. and Philippines forces to the Japanese invaders. The Philippines sent Pedro Lopez as one of the prosecutors in the tribunal. Lopez perished with President Ramon Magsaysay in the plane crash in 1957.
‘DEATH MARCH.’ For his part, Jaranilla successfully raised before the tribunal the two main events, where the Japanese forces committed massive atrocities, murder, and other violations of the war laws: the 1942 Bataan Death March and the 1945 Battle of Manila. In the Battle of Manila, the Japanese forces committed mass violence to civilians in retaliation to the advancing American Liberation forces. The American forces, divided into two army groups: one from the south and another one from the north of Luzon, were to meet in Manila in a pincer movement. But Japanese forces felt desperate due to the impending defeat and committed mass atrocities that killed over 100,000 civilians in the Battle of Manila during the first quarter of 1945. Jaranilla said he lost his home in a fire that gutted a big part of the Manila districts of Ermita, Malate, and Tondo.4
Defense lawyers questioned his presence in the tribunal, saying he would not be a fair judge because of his experience in the Death March. Jaranilla voluntarily excused himself and did not appear and participate during the presentation of evidence related to the Death March. At the end of the trial, Jaranilla submitted a separate concurring opinion, in which, although he agreed with the majority opinion to punish the Japanese war criminals, disagreed with the nature of the punishment, which he described as “too lenient,” when compared to the magnitude of the mass atrocities of the Japanese forces. After his appearance at military tribunal, Jaranilla retired quietly from public service in his home province of Iloilo and died in 1980, aged 97.
Although the trial took a much longer time than the Nuremberg’s, it had sustained the decisions and lessons that were learned in the Nuremberg Trials. For instance, the Tokyo Trials rejected the arguments raised by the defense counsels that no crimes were committed by the defendants because the alleged crimes imputed against them were non-existent before and during the course of the war. It dismissed their calls to dismiss the cases because the charges had no legal bases to stand. To continue the trials would be unfair, unjust, and impartial, the defense lawyers claimed. Continuing the trials was “victor’s justice,” where the war winners punish the losers.
The military criminal tribunal ended its trial on Dec. 12, 1948, meting out death penalty for seven defendants, including wartime prime minister Hideki Tojo, and imprisonment for 16 others, and acquittal for one defendant, who became mentally unfit to stand trial. Nevertheless, the Tokyo Trials have firmed up the lessons learned in the Nuremberg Trials. It confirmed that the Japanese forces indeed committed many war crimes like massacres, mass starvation, human experimentation, rape, and massive abuses to civilians. These atrocities would not go unnoticed and unpunished under the international law. They were the sad refrain in every war. Japan had issued – and keep on issuing until very recently – numerous apologies for these crimes.5
***
YUGOSLAV WARS
BECAUSE of the Cold War between the United States and the former Soviet Union, the clamor for the creation of an international criminal tribunal took a backseat. The Cold War lasted for over 50 years, relegating the proposed world court to discussions mostly in the academic community and intellectual journals. But it did not mean the issue died. On the contrary, its advocates had kept the issue alive. The disintegration of the former republic of Yugoslavia into separate states and the outbreak of the Yugoslav wars in the 1990s were antecedents to stimulate new discussions. The United Nations Security Council, for instance, saw the ultimate necessity to create an international criminal tribunal. This was after Slobodan Milosevic, a key political figure in the old Yugoslavia, was charged with various war offenses in connection with its breakup and the outbreak of the Yugoslav wars.
Milosevic was president of Serbia, a component state of the former Yugoslavia from 1989 until 1992. Milosevic became president too from 1997 until 2000 of Yugoslavia, the synthetic state of six nations - Serbia, Montenegro, Slovenia, Croatia, Bosnia-Herzegovina, Macedonia and the autonomous states of Vojvodina and Kosovo in Serbia. It was under his rule the Yugoslav wars broke out, leading to its disintegration. Milosevic was a player in Yugoslav politics; in fact, he dominated it. But it was Milosevic, who stirred Serbian nationalism, which led to the inevitable – “ethnic cleansing” or genocide of the Islamic population in Bosnia and Kosovo to ensure political domination of the Serbian Christian nationalists.
INDICTMENT. In 1999, Milosevic faced indictment before the International Criminal Tribunal for the former Yugoslavia (ICTY) for allegedly committing 66 counts of war crimes, crimes against humanity and genocide for his role in the decade-long strife that led to Yugoslavia’s breakup and more than 100,000 deaths, displacement of millions,and disintegration of the cultural bond that existed for hundreds of years.6 The ICTY was a new world court because it was created as an ad hoc judicial body by the United Nations Security Council to handle Milosevic’s trial. At first, Milosevic resisted, claiming he would not go to trial under ICTY because it was not officially sanctioned by the United Nations. But when he lost in the 2000 elections, his successor surrendered him to the ICTY in 2001. He became a prisoner in the ICTY temporary headquarters at The Hague in the Netherlands.
Slobodan Milosevic was the second head of state, who underwent trial by a world court for war crimes, crimes against humanity, and genocide. The first was Admiral Karl Doenitz, who became Nazi Germany’s head of state after Adolf Hitler named him as his successor shortly before he committed suicide at the closing days of Second World War. Doenitz led Nazi Germany’s formal surrender to the Allied Forces composed mainly of the U.S., United Kingdom (Great Britain and Northern Ireland), the former Soviet Union, and France. Although a footnote now in history, Doenitz was among the two dozen Nazi leaders charged in the first Nuremberg Trials . The International Military Tribunal sentenced him 20 years of imprisonment for his role in the Nazi German Navy’s participation in the war.
Milosevic resisted attempts to put him into trial But on April 1, 2001, he was arrested despite a reported 36-hour armed standoff between police and his bodyguards at his Belgrade villa. The U.S. was reported to have pressured his successor President Vojislav Kostunica to extradite him to the ICTY to face trial, warning Belgrade it would lose financial aid from the International Monetary Fund and the World Bank. Koštunica opposed Milosevic’s extradition, saying such a move would violate the Yugoslav constitution. But Kostunica’s second in command, Prime Minister Zoran Djindjic ordered Milosevic’s extradition to the ICTY. On 28 June, 2001, a helicopter took Milošević from Belgrade to a US airbase in Tuzla in Bosnia and Herzegovina and from there he was then flown to The Hague.
FINANCIAL AID. His extradition to ICTY triggered political turmoil in the old Yugoslav federation. Koštunica denounced as “illegal and unconstitutional” his extradition, while the Djindjic coalition left the government in protest. Despite the political turbulence, it was reported that a group of donor-nations, mostly Europeans, had pledged $1 billion in financial aid to Yugoslavia and a possible membership for Serbia in the European Union. This was a big comeon for Serbian leaders to surrender Milosevic, whom they felt did not have any relevance and use in Serbian politics due to what was widely considered his bloody record.
The trial, which started on February 12, 2001, was a global spectacle. It was widely covered by many news outfits from many countries. In a show of combined bravado and bravura with an air of a braggadocio, Milosevic did not appoint a defense counsel, choosing to defend himself. The trial did not end as expected. It did not reach any decision because Milosevic died of a heart attack while in custody in 2004, ending the trial abruptly. It was a trial that was rich in lessons and they proved to be important to establish a more permanent world court.
***
WORLD COURT FOR TYRANTS
THE global attention on Milosevic’s indictment and trial renewed calls to create a permanent world court for criminal-leaders, who used their powers to oppress people with impunity. World leaders and legal luminaries felt it was time to create a permanent judicial body to stop tyrants from engaging in abuses of their power against their own people. It was an idea that had come of age, they claimed. Hence, the United Nations, through the International Law Commission (ILC), one of its specialized bodies, came out with the draft of the Rome Statute, a multilateral treaty that has sought the creation of the International Criminal Court (ICC).
The Rome Statute was adopted at a diplomatic conference in Rome on July 17, 1998. The Rome Statute has become enforceable on July 1, 2002 leading to the establishment of the ICC. The Rome Statute sets the ICC's functions, jurisdiction, structure, and operational details. It establishes four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Under the Rome Statute, the ICC can only investigate and prosecute the four international crimes in situations where states could not do so themselves, or their domestic legal systems and courts have failed.7
Under international law, states have a responsibility to investigate and appropriately prosecute (or extradite for prosecution) suspected perpetrators of genocide, war crimes, crimes against humanity, and other international crimes. The ICC does not shift this responsibility. It is a court of last resort. Under what is known as the “principle of complementarity,” the ICC may only exercise its jurisdiction when a country is either unwilling or genuinely unable to investigate and prosecute these grave crimes. After an investigation has been opened, states and individual defendants can still challenge the lawfulness of cases before the court based on the existence of national proceedings. At least 123 countries have signed the Rome Statute.
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• July
17, 1998 - The Rome Statute is adopted by 120 states, informally establishing
the permanent ICC. Seven members of the United Nations vote against the
statute: the United States, China, Iraq, Israel, Libya, Qatar and Yemen.
• July
1, 2002 - The Rome Statute enters into force after ratification by 60
countries.
• October
12, 2016 - Burundi votes to withdraw from the ICC, but is still listed as a
party.
• October
21, 2016 - South Africa announces it is withdrawing from the ICC, saying parts
of the Rome statute conflict with the country's own laws which give
heads-of-state, particularly ones they're trying to reach peace and stability
with, diplomatic immunity. In March 2017, South Africa officially cancels its
withdrawal.
• November
10, 2016 - Gambia notifies the ICC that it is withdrawing, citing bias against
Africans. Gambia cancels its withdrawal in February 2017.
• November
16, 2016 - Russia says it will withdraw its signature from the ICC treaty,
under a directive signed by Russian President Vladimir Putin.
• October
27, 2017 - Burundi effectively withdraws from the ICC, becoming the first
member state to do so.
• March
14, 2018 - Philippine President Rodrigo Duterte says in a statement that the
country has given notice that it will withdraw from the ICC. The announcement
follows the ICC's February 8 statement that it has started an inquiry into
Duterte's controversial war on drugs. The action goes into effect on March 17,
2019.
Source: CNN International Website8
In many instance, core crimes under Rome Statute overlap in their scope. A war crime could be a genocide as well. The Rome Statute says crimes of aggression involve invasion, occupation, annexation by the use of force, bombardment, and military blockade of ports by one state to ano the territory of another. It punishes the persons who are engaged in the planning, preparation, initiation or execution of such attack by one state to another state. The crimes of aggression was a latecomer in the ICC core crimes. It was only include only in the first Review Conference on the Rome Statute on May 31 - June 11, 2010 in Kampala, Uganda. The conference has defined the crimes of aggression for inclusion within ICC’s jurisdiction.
CRIMES AGAINST HUMANITY. Many existing literature say crimes against humanity are acts committed as wholly or part of a big systematic policy against civilians either in times of war or peace. They differ from war crimes because they are not isolated acts committed by individual soldiers but are acts committed to advance a state or organizational policy. The first prosecution for crimes against humanity took place in the 1945 Nuremberg trials. Appalled by the official existence of the Holocaust, which showcase the murder of six million Jews, persons with disability, homosexuals, Gypsies, among others.
According to the Rome Statute, criminal acts committed directly against civilians in war or in peace are called crimes against humanity and they usually involve vast infringements of what is now defined as human rights. Basically they are committed to advance state or organizational policy and crimes against humanity include murder, massacres, dehumanization, genocide, ethnic cleansing, deportations, and unethical human experimentation. The Rome Statute includes extrajudicial punishments including summary executions, use of weapons of mass destruction, state terrorism or state sponsoring of terrorism, death squads, kidnappings and forced disappearances, and use of child soldiers,
Moreover, crimes against humanity include unjust imprisonment, enslavement, torture, rape, political repression, racial discrimination, and religious persecution. Other human rights abuses may reach the threshold of crimes against humanity if they are part of a widespread or systematic practice.
ICC STRUCTURE. According to its webpage, the ICC is governed by the Assembly of States Parties, which is made up of the states that are party to the Rome Statute. The Assembly elects officials of the Court, approves its budget, and adopts amendments to the Rome Statute. The Court itself, however, is composed of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.
According to an ICC primer, the President is the most senior judge chosen by his or her peers in the Judicial Division, which hears cases lodged by various parties worldwide before the Court. The President serves as the ICC chief executive. The Office of the Prosecutor is headed by the Prosecutor, who is empowered under the Rome Statute to investigate crimes and initiate criminal proceedings before the Judicial Division. The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit, and public defense office. The primer said the ICC employs over 900 personnel from 100 nations and conducts proceedings in English and French.
The ICC has been criticized by several governments and civil society organizations for perceived bias against African states since a number of those public officials indicted came from poor, underdeveloped African nations. It has been criticized for the fairness of its case-selection and trial procedures. They have expressed doubts about its effectiveness.
Existing literature say The Presidency is responsible for the administration of the ICC as a court. It is composed of the President and the First and Second Vice-Presidents, three judges of the Court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms. Its website says that, as of March 2021, its President is Piotr Hofmański of Poland, who took office on 11 March 2021, replacing Chile Eboe-Osuji of Nigeria. His first term will expire in 2024. Its website says The Presidency oversees the activity of the Registry and organizes the work of the judicial divisions. It also has some responsibilities in the area of external relations like negotiating agreements on behalf of the Court and promoting public awareness and understanding of the institution.
Existing literature says The Judicial Divisions consist of the 18 judges of the Court, organized into three chambers, which are the Pre-Trial Chamber, Trial Chamber and Appeals Chamber. They all implement the judicial functions of the Court. Judges are elected to the ICC by the Assembly of States Parties. They serve nine-year terms and they are not generally eligible for re-election. All judges must be nationals of state parties to the Rome Statute. No two judges may be nationals of the same state.They must be "persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices."
The Office of the Prosecutor (OTP) is responsible for conducting investigations and prosecutions. It is headed by the Prosecutor of the International Criminal Court and he is assisted by one or more Deputy Prosecutors. The Rome Statute provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.
Under the Rome Statute, the Prosecutor may open an investigation under three circumstances: when a situation is referred to him or her by a state party; when a situation is referred to him or her by the United Nations Security Council, acting to address a threat to international peace and security; or when the Pre-Trial Chamber authorizes him or her to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organizations.
RATIFICATION. The Philippines, through then Deputy Permanent Representative to the United Nations in New York Enrique Manalo, signed the Rome Statute on December 28, 2000. According to Norberto Gonzales, who served as defense secretary and national security adviser of the Gloria Macapagal Arroyo administration, the Department of Foreign Affairs submitted the Rome Statute to President Gloria Macapagal Arroyo. In accordance with the constitutional provisions on treaties, pacts, and agreements, the Arroyo Cabinet discussed it thoroughly. The late Justice Secretary was among those who pushed passionately for its approval.
The Arroyo Cabinet intensely debated on the pros and cons of the Rome Statute. The big question was the non-approval of the United States of this treaty. The Arroyo Cabinet voted to approve it, but the political campaign in the 2010 presidential elections stopped its submission for concurrence by the Senate. It was not concurred under the Arroyo administration. It was the administration of Benigno Aquino III that submitted it to the Senate for appropriate action. Aquino submitted it after Rep. Jerry Trenas, chair of the House committee on good government and public accountability, filed House Resolution 638 asking the Executive to submit the Rome Statute for Senate concurrence.9
The Senate approved on third and final reading the resolution concurring in the ratification of the Rome Statute creating the ICC, the world's first permanent tribunal for war crimes and crimes against humanity. It garnered on August 23, 2011 at least 17 “yes”votes, one negative vote and no abstention. Although Rodrigo Duterte took the unilateral move for the Philippines to withdraw from the ICC on March 14, 2018 and it became official a year later or on March 17, 2019, it could not be said that it is final and executory. There have been legal views that what Duterte did was his own and did not reflect the entire Philippine government. It has been argued in some legal quarters that his unilateral move needed the ratification of the Philippine Senate so that what it earlier ratified could be finally withdrawn.
The issue has continued to plaque the government of Ferdinand Marcos, who was elected in 2022 to replace Duterte at the end of his term. The Marcos government has not made any statement or stand on the issue presumably to avoid clashing with Duterte, who has stood pat that the Philippines has indeed withdrawn its membership from the ICC. This is an issue that has remained unclear. The ICC has not made any statement but stressed that it is empowered to look into the alleged crimes against humanity committed by the government of Rodrigo Duterte until March 17, 2019.
ENDNOTES:
1. The London Agreement reached on August 8, 1945 set down the rules and procedures by which the Nuremberg trials were to be conducted. It served as a template for the Tokyo Charter issued months later against Japanese war criminals. Section 2, Article 6 said: “The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
2. The
following acts, or any of them, are crimes coming within the jurisdiction of
the Tribunal for which there shall be individual responsibility: (a) CRIMES
AGAINST PEACE: namely, planning, preparation, initiation" or waging of a
war of aggression, or a war in violation of international treaties, agreements
or assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing: (b) WAR CRIMES: namely, violations of
the laws or customs of war. Such violations shall include, but not be limited
to, murder, ill-treatment or deportation to slave labor or for any other
purpose of civilian population of or in occupied territory, murder or
ill-treatment of prisoners of war or persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of cities, towns or
villages, or devastation not justified by military necessity; (c) CRIMES AGAINST HUMANITY: namely, murder,
extermination, enslavement, deportation,
and other inhumane acts committed against any civilian population, before or
during the war; or persecutions on political, ·racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the
Tribunal, whether or not in violation of the domestic law of the country where
perpetrated.1 Leaders, organizers, instigators and accomplices participating in
the formulation or execution of a common plan or conspiracy to commit any of
the foregoing crimes are responsible for all acts performed by any persons in
execution of such plan
3. This
is a feature article on Ben Ferencz:
https://www.washingtonpost.com/lifestyle/style/the-last-surviving-nuremberg-prosecutor-has-one-ultimate-dream/2016/08/31/3b1607e6-6b95-11e6-ba32-5a4bf5aad4fa_story.html
4. NHK,
Japan’s main broadcast network, had a mini-series on the Tokyo Trials. It was
shown in 2016. U.S.-based Filipino actor Bert Matias appeared as Col. Delfin
Jaranilla in the military tribunal.
5. It
should be noted the defense panels hardly raised the “tu quoque” (you did it
too) argument during the course of the trials. Neither did they raise the
“we’re just following orders from our superiors” argument. These two arguments
were rejected in the Nuremberg Trials. The defense counsels knew they stood to be
rejected too.
6. Armatta,
Judith, Twilight of Impunity: The War Crimes Trial of Slobodan Milosevic, Duke
University Press, 2010
7. This
is an article written by Sang-Hyun Song, president of the International
Criminal Court, and published in the United Nations’ UN Chronicle website
(https://www.un.org/en/chronicle/article/role-international-criminal-court-ending-impunity-and-establishing-rule-law:
“On 24 September 2012, the United Nations General
Assembly held a High-level Meeting on the Rule of Law at the National and
International Levels during which numerous delegates spoke about the importance
of the International Criminal Court (ICC). In the Declaration adopted at the
meeting, States recognized ‘the role of the International Criminal Court in a
multilateral system that aims to end impunity and establish the rule of law.’
In my remarks to the Assembly on 1 November 2012, I welcomed this statement,
which echoed many earlier characterizations of the Court's role.
“The crux of the ICC role lies in enforcing and
inducing compliance with specific norms of international law aimed at outlawing
and preventing mass violence. Confronted with the extensive perpetration of
unspeakable atrocities after the Second World War, the international community
articulated an unparalleled call for justice. It sought to put an end to such
crimes through, inter alia, the adoption of the Convention on the Prevention
and Punishment of the Crime of Genocide, the four Geneva Conventions and the
Nuremberg Principles.
“However, in the absence of credible enforcement
mechanisms, violations of international humanitarian law continued with glaring
impunity. In response, the international community decided to take joint action
by creating an interconnected system of international justice to prevent
impunity for the worst atrocities known to mankind. On 17 July 1998, this
vision materialized when States adopted a multilateral treaty called the Rome
Statute of the International Criminal Court, under the auspices of the United
Nations. With the entry into force of the Rome Statute on 1 July 2002, the
first permanent international criminal court, the ICC, came into being.
“The ICC contributes to the fight against impunity
and the establishment of the rule of law by ensuring that the most severe crimes
do not go unpunished and by promoting respect for international law. The core
mandate of the ICC is to act as a court of last resort with the capacity to
prosecute individuals for genocide, crimes against humanity and war crimes when
national jurisdictions for any reason are unable or unwilling to do so. As of
November 2012, the ICC is seized of 14 cases in seven country situations,
involving a total of 23 suspects or accused. Three of the investigations in
Uganda, the Democratic Republic of the Congo (DRC) and the Central African
Republic resulted from referrals made by the States themselves; two situations
in Darfur, Sudan and Libya were referred to the ICC Prosecutor by the United
Nations Security Council, and the last two investigations in Kenya and Côte
d'Ivoire were initiated by the Prosecutor proprio motu, with the authorization
of the Pre-Trial Chamber of the ICC. In addition, the Prosecutor is currently
conducting preliminary examinations into eight situations.
“The Rome Statute and the ICC have made particular
advances in combating impunity in relation to crimes against children and
women. The Rome Statute extensively codifies such acts and requires the organs
of the ICC to have particular expertise on violence against women and children.
In fact, gender crimes were featured in the vast majority of ICC cases to date.
“The ICC's first verdict was issued on 14 March 2012
and the first sentence on 10 July 2012 in the Lubanga case,6 where child
soldiers under the age of 15 were conscripted, enlisted and used to actively
participate in hostilities in the DRC. Charges relating to the use of child
soldiers are also featured in several other ICC cases, and the Special
Representative of the United Nations Secretary-General for Children and Armed
Conflict has assessed that "these indictments serve as a useful deterrent
against child recruitment in situations of armed conflict".
“As the then United Nations Secretary-General Kofi
Annan stated in 2004, the ICC makes an impact by ‘putting would-be violators on
notice that impunity is not assured.’ Where tensions arise, announcing publicly
that the ICC is following the situation can be a powerful way to warn any
potential perpetrators that they could be held liable for their actions.
Moreover, it can draw local as well as international attention to the situation
and induce the relevant national and other stakeholders to take necessary
action to defuse the crisis. Not long ago, a minister from one of the States
Parties to the Rome Statute told me that the possibility of an ICC intervention
was a major factor that helped prevent large-scale violence in the context of
the country's elections.
“Even where the ICC's intervention is required, it
does not necessarily have to lead to trials before the ICC. An ICC investigation
may instead prompt the relevant national authorities to investigate the alleged
crimes in an expeditious manner and to prosecute the suspected perpetrators in
domestic courts.
“The ICC reduces impunity not only by punishing
perpetrators, but also by allowing victims to participate in the judicial
proceedings and to apply for reparations.9 These are novel, progressive
features in international criminal proceedings that empower victims and bring
retributive and restorative justice closer together. As of November 2012, the
ICC has received more than 12,000 applications for participation in the
proceedings, the majority of which have been accepted. Its first decision on
reparations for victims was issued on 7 August 2012.
“A related and innovative aspect of the Rome Statute
system was the creation of the Trust Fund for Victims, which has the dual
mandate of implementing court-ordered reparations as well as providing
assistance to victims and their families irrespective of judicial decisions.
Currently, over 80,000 beneficiaries receive assistance from the Trust Fund and
its local and international partners. In responding to the particular needs of
victimized individuals by enabling them to regain their place within their
communities and to rebuild sustainable livelihoods, the Trust Fund is becoming
an increasingly visible presence on the nexus between justice and development.1
The Rome Statute created not only a court, but also a
new international legal system consisting of the ICC as well as the national
jurisdictions of each State Party. Within this system, States have the primary
responsibility to investigate and prosecute Rome Statute crimes. In his 2004
report, Mr. Annan noted that "the Court is already having an important
impact by [.] serving as a catalyst for enacting national laws against the
gravest international crimes".12 Indeed, the Assembly of States Parties to
the Rome Statute has repeatedly stressed the importance of national
implementation of the Statute and of strengthening the capacity of national
jurisdictions and has considered ways to achieve those goals. Recently,
discussions on these issues, under the Rome Statute concept of complementarity,
have been multiplied in many forums among a wide range of stakeholders, notably
the United Nations, interested States and civil society.
“Without the rule of law, impunity reigns. By
punishing violations of international legal norms and by promoting adherence to
these norms, the ICC and the wider Rome Statute system play an important part
in advancing the rule of law, thereby reducing impunity. This role is critical
given the nature of the specific norms that the Rome Statute concerns—norms
aimed at preventing crimes which "threaten the peace, security and
well-being of the world".13 The acts and omissions which fall under its
jurisdiction are so heinous, so destructive, that every effort towards their
prevention is worthwhile. Accountability is important not only for the sake of
the past, but for the future as well. Where impunity is left unaddressed, it
provides fertile ground for the recurrence of conflicts and repetition of
violence.
“In order to effectively perform its mandate, the ICC
needs the support and cooperation of States.14 The international community has,
on multiple occasions, declared its determination to end impunity for the
gravest crimes, and cooperation with the ICC is a concrete way to give effect
to that objective. As the ICC has no police force of its own, it requires
States' cooperation for the enforcement of its orders and is entirely reliant
upon them for the execution of its arrest warrants. Unfortunately, several
suspects subject to ICC arrest warrants have successfully evaded arrest for
many years, defying the international community's attempts to establish the
rule of law at the international level. Political will to bring these persons
to justice is crucial.
“The Rome Statute system has changed the way the
world looks at grave crimes under international law. With the arrival of a
permanent international court to prosecute such crimes, national jurisdictions
have simultaneously been encouraged and empowered to prevent impunity. As of 1
July 2012, the Rome Statute has 121 State Parties that have fully endorsed the
new justice paradigm centred on the ICC. An additional 32 States have signed,
but not yet ratified the Statute. I wholeheartedly endorse the General
Assembly's call upon States not yet party to the Rome Statute to consider
joining the ICC.15 The universality of the Rome Statute would not only extend
its legal protection to people everywhere, but it would also increase the
equality of perpetrators before the law.
“The long-term value of the ICC and the Rome Statute
system lies in both the punishment of perpetrators and the prevention of future
crimes. There is already evidence that it has made a significant contribution
in this regard. As it enters its second decade, the ICC remains firmly
committed to bringing an end to impunity and upholding the rule of law,
inspired by the common values of humanity that the Court shares with the United
Nations.”
8. https://edition.cnn.com/2016/07/18/world/international-criminal-court-fast-facts/index.html
9. Rep. Jerry Trenas, chair of the House committee of good government and public accountability, issued a press statement in 2011 re the necessity for Senate concurrence of the Rome Statute. Read: https://www.congress.gov.ph/press/details.php?pressid=4723
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