First Expert’s Conference on the ICC today in Manila

Maria Felisa Damaso
The Manila Times

The full endorsement of a global court established to protect victimis of genocide, war crimes and crimes against humanity is now underway as legal luminaries from Southeast Asian countries and Pacific states meet today to reaffirm the need to establish the International criminal Court.

Dubbed as the Expert’s Conference on the ICC, the meet is envisioned to provide a thorough understanding of the Rome Statute which gave birth to the ICC and its implications to various institutions and judicial system at the domestic level.
Chief Justice Hilario G. Davide, Jr. of the Philippine Supreme Court will be the Keynote Speaker in today’s opening ceremonies. Also to grace the event are Justice Secretary Hernando Perez, human Rights Chaiperson Aurora Navarrete-Recina, tourism Secretary Richard Gordon.
A brainchild of the Center or Restorative Justice in Asia (CRJA)- a non-government organization of lawyers and professionals – the Expert’s Conference aims to provide a uniform level of familiarity and Knowledge of the ICC among senior government officials in the areas mentioned. The effort is being undertaken with the Philippine government. The ICC is a permanent independent judicial body created by the international community of states to prosecute the gravest possible crimes under the international law. These crimes include genocide; war crimes and other crimes against humanity – such as widespread or systematic extermination of civilians; enslavement; torture; rape; forced pregnancy; persecution on ethnic on political, racial, ethnic or religious grounds, and enforced disappearances. The Statute of the ICC, adopted in July 1998, definies all these crimes to avoid ambiguity.
The seminar will run until Friday, October 18, when participants take a trip to the historic Corregidor Island.

The aim

Aimed to be a vehicle of interaction and fruitful discussions, the state participants are also expected to be better-informed and to learn from the conference the advantages of their respective states as well as the support they would get from the ICC. Such understanding- when effectively put in action – is seen to effect a groundswell of positive response or the immediate establishment of the ICC.

Relevant topics, expert lectures
The topics in the Experts’ Conference shall provide a general overview of the ICC and a situation report on where the Teaty currently stands in the global community.
Raul Pangalangan, dean of the University of the Philippines College of Law and member of the Philippines Delegation to Rome, will be one of the lectures. He will tackle issues on International humanitarian Law and the ICC: Asean Experiences and Materials.
Emma Bonino, member of the European Parliament and head of Delegation of the European Commission, will also attend the conference as lecture on the Highlights of the Rome Conference. Isabelle Kuntzinger, legal Adviser of the Red Cross, will talk on The International Criminal Court and the International Law.
Other lectures include: Lionel Yee Woon Chin, State Counsel of the International Affairs Division of the Attorney General’s Office, on Crimes within the Competence of the Court; Adriaan Bos, former Chair of the ICC Preparatory Commission, Principle of Complementary Between National and Universal Jurisdiction and the Role of Prosecutor, and Theo Van Boven, professor in International of the University of Maastricht and head of the Netherlands Delegation to the Rome Conference, The Rights and Interest of Victims in the International Criminal Court;
Gilbert Bitti, legal adviser in the Human Rights Office, Ministry of Justice in France, will be the lecture on the ICC and the Human Rights Parties: Cooperation with the Court and Enforcement of Sentences and reparation Order, William Schabas, Director, Irish Center for Human Rights National University of Ireland in Galway and member of the Canadian Delegation to the Rome Conference on General Principles of Criminal Law and Sentencing.
Also attending as speaker in the conference are: Klaus Kress, professor at the Universitat ZU Koln, Abteillung Auslandisches und Internationales Strafrect and member of the German delegation to the Rome Conference. Kress will talk on the Issues relating to Accession and Ratification of the ICC, and Juerg Lindenmann, Suppleant du Jurisconsulte Departement Federal des Affaires Estrengeres, Switzerland, will tackle State Obligations Regarding Implementation of ICC. Juliet Hay, senior legal adviser in the legal division of the Ministry of Foreign Affairs and Trade in New Zeland, will cover issues on Ratification and Implementation of the ICC: Experiences of New Zeland.
Chaired by Foreign Affairs Undersecretary Franklin Ebdalin, Justice Undersecretary Manuel Teehankee and Pangalangan, the National Organizing Committe (NOC) or the Conference is composed of the following members: Local Government Assistant Secretary Anselmo Avenido, Justice Undersecretary Ramon Liwag; Foreign Affairs Assistant Secretary Mosquera, and Assistant Solicitor General Nestor Ballacillo.
Lawyers Norman Daanoy, Richard Chiu, Angela Ponce, Anne Capacite and Cristina Rilloraza, of the Department of National Defense, OP-ES, Department of Foreign Affairs, Supreme Court and the Department of Justice respectively are also members of the NOC. Lawyers Edgardo Diansuy of the Commission on Human Rights and Cristina Gates of the Centre for Restorative Justice in Asia are also members of the Committe.
The conference is supported by grants from the governments of the United Kingdom, Sweden, Germany, France, Canada, New Zealand, and the International Committee of the Red Cross and “No Peace Without Justice”.
Members of the European Parliament, led by Hon. Gianfranco Dell’Alba, will also attend the activity, together with ICC president Arthur Robinson.
Chaipersons of the Senate and Congressional Committees, cabinet members, representatives from international organizations and donor countries, law school deans, representatives from the Integrated Bar of the Philippines, and the media, among others will also attend the Conference.
Visualized to forge working modalities among the participating countries, the Expert’s Conference shall provide the foundation upon which future activities will be grounded.
Nearing the 60-ratification requirement
So far, the campaign for the establishment of the Court has achieved more than two-thirds of the required 60-nation ratifications to put the ICC into force.
With Switzerland as the 43rd State Party to the Rome Statute on the ICC on Oct. 12, 2001, it has so far achieved 139 signatories and 43 ratifications.
“The Coalition has a campaign goal to achieve the necessary 60 ratifications by July 17, 2002, the fourth anniversary of the adoption of the treaty. It is now extremely likely that we will exceed this goal, and some are estimating that we may even have 60 by the end of this year”, Dr, Ahmed Ziauddin of the Asian Network or the ICC, in his Statement at the UNCA Press Briefing held on October 5.
“We have had ratifications in the last week and a half from Nigeria, Liechtestein, the Central African Republic and yesterday the United Kingdom. Just prior to the opening of the Prepcom (Preparatory Commission), the Federal Republic of Yugoslavia also ratified”, he added, stressing the significant gains in its campaign.
He added, “The accelerated pace may be due in part to the widespread view among international lawyers that the ICC could have taken up the crimes committed in the September 11th attack on the United States. It is also due to the fact that UN Secretary General Kofi Annan identified the ICC treaty as a priority treaty for ratification during the Children’s Summit and the General Debate; while both were postponed, many countries were preparing to ratify in response to this call. We still expect that Peru, Poland and Switzerland will join the State Parties shortly.
“In addition to most Western European countries, we have strong support or the treaty in sub-Saharan Africa and in Latin America. We still have a lot of important work to do in Asia, in the Middle East and in Central and eastern Europe. We plan to continue our work after the 60 ratifications have been obtained, to ensure that the court has universal support, which is important both or its effectiveness and its legitimacy”, Ziauddin concluded.

In the last 50 years, there have been many instances of crimes against humanity and war crimes or which nobody has been held accountable.
In the 70’s alone, as estimated two million people in Cambodia were killed by the Khmer Rouge. Armed conflicts in Mozambique, Liberia, El Salvador and other countries, resulted in tremendous loss of civilian lives, including horrifying numbers of unarmed women and children. Massacres of civilians continue in Algeria and the Great Lakes region of Africa.
Millions of people have continued to be the victims of such crimes. Yet, only a handful of those responsible or these crimes have been brought to justice by national courts.

The dawning
“The United Nations General Assembly first recognized the need for a permanent mechanisms to prosecute the need or a permanent mechanism to prosecute mass murders and war criminals in 1948, following the Nuremberg and Tokyo trials after World War II, and it has been under discussion at the UN ever since, “The UN Department of Public Information (UNDPI) said in one of its publications in 1999.
On July 17, 1998 in Rome, international law experts during the UN Diplomatic Conference who saw the need or an international criminal court adopted the Rome Statute of the International Criminal Court. Their efforts, reflective of their virtual battle cry, seem to point out: The ICC is the missing link in the international legal system
“Hundreds of representatives of non-government organizations contributed to this process. Many States were unable to sign immediately due to constitutional requirements such as the need for prior approval by parliament , but are expected to sign in the near future”, the UNDPI added.
The International Criminal Court of Justice at Hague, Netherlands – the principal judicial organ of the UN – was designed to deal primarily with disputes between states, not individuals. It has no jurisdiction over matters involving individual criminal responsibility, it said.
Indeed, without an international criminal court that would deal with individual responsibility as an enforcement mechanism, acts of genocide and egregious human rights violations would still go unpunished.
The Rome Statute
The diplomatic conference adopted the Rome Statute of the ICC by an overwhelming vote of 120 in favor and only seven against. Twenty-one of the voting states abstained.
The Rome Statute defines the crimes, how the court will work and what states must do to cooperate with it.
“Many felt the agreement was no less important than the adoption of the United Nations(UN) Charter itself and it was hailed by United Nations Secretary-General Kofi Annan as a giant step forward in the march towards universal human rights and the rule of law”, the UNDPI added.
The Statute provides that the court will be established upon the ratification of 60 states. By July 2001, 139 states had taken the first step towards its ratification by signing the statute.
Thirty-seven states have so far rarified it.
The 60th ratification will signal the ICC’s acquiring jurisdiction over only those crimes committed after the Rome Statute enters into force.
The national courts will always have jurisdiction over such crimes, even with the establishment ICC. Only when the national courts are unable to do will the ICC act, as “complementarity”.
The UNDPI further explained that the ICC will not supersede, but will complement national jurisdiction. “National courts will continue to have priority in investigating and prosecuting crimes within their jurisdiction”.
ICC’s aims
The ICC is seen to “encourage States to investigate and prosecute “egregious crimes committed in their territories or their nations, for if they do not, the International Court will be there to exercise its jurisdiction”, the UN department of Public Information said.
The Statute provides that the Court is capable of dealing with crimes in cases when a government is unwilling to prosecute its own citizen – specially if they are high-ranking, or where the criminal justice system has collapsed as a result of an internal conflict.
The Court’s Statute incorporates contemporary international humanitarian law standards that criminalize, as war crimes, serious violations committed in internal armed conflicts, excluding external distrurbances or riots.
Crimes are defined in the Statute after years of hard work involving many delegations and their experts. Each definition is precisely formulated to reflect existing international law and is crafted to meet the requirement of clarity in criminal justice, it added.
In such particular cases, the ICC will:
Act as deterrent to people planning to commit grave crimes under the international law;
Prompt national prosecutors – who have the primary responsibility to bring those responsible or these crimes to justice – to do so;
Give victims and their families the chance to obtain justice and truth, and begin the process od reconciliation; and
Be a major step towards ending impunity.
Furthermore, the ICC shall have jurisdiction to prosecute individuals when: (1) Crimes have been committed in the territory of state which has ratified the Rome Statute; (2) Crimes have been committed by a citizen of a state which has ratified the Rome Statute; (3) A state which has not ratified the Rome Statute has made a declaration accepting the Court’s jurisdiction over the crimes; (4) Crimes have been committed in a situation that threatens or breaches international peace and security and the UN Security Council has referred the situation to the Court pursuant to Chapter 7 of the UN Charter.
Only in three different ways
The Philippines signed the Rome Statute on Dec. 28, 2000, but has not ratified the same. Upon ratification, the treaty becomes binding on the Philippines as a State Party. Such development would involve major policy areas, which in Philippines jurisdiction can only be binding as law through the exercise of legislative power as constituted under the Constitution.
The Rome Statute provides that cases can originate in the Court in three different ways:
The Court’s prosecutors can initiate an investigation into a situation where one or more of the crimes has been committed, based on information from any source, including the victim’s family, but only if the Court has jurisdiction over the crime and individual;
States which have ratified the Rome Statute may ask the prosecutor to investigate a situation where one or more of the crimes has been committed, but only if the Court has jurisdiction;
The UN Security Council can ask the Prosecutor to investigate a situation where one or more of the crimes has been committed. Unlike methods 1 and 2, the ICC will have jurisdiction when the UN Security Council refers the situation to the Prosecutor, even if the crimes occurred in the territory of a state, which has not ratified the Rome Statute or was committed by the national of such state.
In each of these situations, however, it is up to the Prosecutor, not the states nor the Security Council, to decide whether to open an investigation, or whether to prosecute, subject to judicial approval.
The ICC – to be headquartered at The Hague, The Netherlands – would be authorized to try cases in other venues when appropriate, as it is not constrained by time and place limitations.
It will have 18 judges with competence in criminal law and procedure, and the necessary relevant experience in criminal proceedings. Judges competent in relevant areas of international law, such as international humanitarian law and human rights law, will also be with the ICC.
Inter-agency task force
An Inter-Agency Task Force on the Establishment of the ICC was created on March 24, 1998. Pursuant to Administrative Order No. 387, it was tasked to (1) undertake studies and researches on the proposed establishment of the ICC; (2) formulate policy recommendations to serve as inputs in the review and consolidation of the Philippine Government’s position in the Preparatory Committee meetings of the ICC and the United general Assembly; (3) Identify and recommend legislative measures necessary in the furtherance of the foregoing; (4) serve as a forum or the resolution of issue and concerns on the establishment of the ICC; and (5) pursue other related functions which may be deemed necessary by the President.
On March 20, 2000, the Task Force reconstituted itself as the National Organizing Committee, which was partky responsible or the three-day Conference here in the Philippines.