CHAPTER I INTRODUCTION

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

A. BACKGROUND OF THE STUDY

Following years of negotiations aimed at establishing a permanent international tribunal to prosecute individuals accused of genocide and other serious international crimes, such as crimes against humanity, war crimes, and the recently defined crimes of aggression, the United Nations General Assembly convened a five-week diplomatic conference in Rome in June 1998, "to finalize and adopt a convention on the establishment of an International Criminal Court." On 17 July 1998, the Rome Statute was adopted by a vote of 120 to 7, with 21 countries abstaining.

Sponsorship Speech of Senator Miriam Defensor-Santiago as Chair of the Subcomittee of the Rome Statute of the International Criminal Court on 16 August 2011

On April 11, 2002, ten countries ratified the statute at the same time at a special ceremony held at the United Nations headquarters in New York City, bringing the total number of signatories to sixty, which was the minimum required number required to bring the statute into force, as defined in Article 126. The International Criminal Court was thus born, with the treaty entering into force on 1 July 2002.

The International Criminal Court (ICC) is intended as a court of last resort, investigating and prosecuting only where national courts have failed. As the ICC was established through an international treaty, and most of the countries in the world involved in its drafting, the ICC, on the one hand, has jurisdiction over the core crimes of international concern and, on the other, its power is limited by complementarity, i.e. the national jurisdiction comes first and ICC's jurisdiction second. As embodied in the preamble of the Statute, the State Parties declare that they wish to establish a permanent court "to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes", and to ensure "their effective prosecution by taking measures at the national level and enhancing international cooperation", and that the permanent court "shall be complementary to national criminal jurisdictions" in case trial procedures may not be available or may be ineffective".

Gleaned from the foregoing provisions, the basic idea for the complementarity is to maintain State sovereignty, under which "It is the duty of

every State to exercise its criminal jurisdiction over those responsible for international crimes" defined in Articles 6 to 8 of the Rome Statute, to enhance the national jurisdiction over the core crimes prohibited in the Statue, and to institute an effective criminal justice system in the national level so as to meet the needs in investigating and prosecuting persons who committed such violations.

Worded differently, the principle of complementarity provided in the Rome Statute means that national courts have the priority to exercise jurisdiction over the crimes prohibited in the Statute, i.e. the ICC cannot exercise its jurisdiction over the international crimes unless the State concerned is UNABLE or UNWILLING to investigate or prosecute genuinely the same.

Surprisingly, the Philippines became the 117th State Party to the Statute only on August 24, 2011, more than a decade after it signed the treaty in 2000. As a beginning step towards ratification of the instrument, and in compliance with the pressing calls of the international community for conformity with the international standards of human rights protection and development, the Philippine Congress enacted Republic Act 9851, otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity".

Adopting the definitions of serious international crimes in relation to Article 27 of the Rome Statute, RA 9851 provides that, "this Act shall apply equally to all

persons without any distinction based on official capacity. Official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Act." Further, "immunities or special procedural rules that may attach to the official capacity of a person under Philippine law other than the established constitutional immunity from suit of the Philippine President during his tenure, shall not bar the court from exercising its jurisdiction over such persons."

It is interesting to note that nowhere in the 1987 Constitution did it provide for executive immunity from suit. Unlike congressional immunity, presidential immunity is neither expressly enunciated nor prescribed by the Constitution. Basis for the immunity is only found in jurisprudence, both internationally and in the Philippines, which, by virtue of Article 8 of the Civil Code, "forms part of the legal system of the Philippines.

As to be narrated in the succeeding chapters, it is evident that the Philippine laws and jurisprudence point with consistency that the President enjoys immunity from suit during his tenure. Our jurisdiction follows the old concept of immunity under the Westphalian regime. As what it has been traditionally recognized, head of state immunity rests heavily on the customary concept of sovereign immunity, which in turn originated at a time in European history when the sovereign and its ruler were deemed indivisible, and the

immunity granted to the Head of State was seen as an extension of the immunity granted to the state itself.

But with the advent of customary laws towards recognition of and respect for human rights and the eroding stature of the doctrine of immunity from suit of heads-of-states in the international arena, doubt is cast as to the strength and applicability of the executive immunity when it comes to serious violations of International Humanitarian law against genocide, crimes against humanity, war crimes and the crime of aggression. The Article on Irrelevance of Official Capacity, even extending to the responsibility of commanders and other superiors over the acts of their subordinates, effectively whittles away this long established doctrine.

Indeed, the ratification by the Philippines of the instrument of Rome Statute clearly sends a message to the world that our state shall not have its eyes wide shut and its hands tied down in front of the gravest atrocities committed or to be committed by those who are in power. The question lies, though, when the culpability on the serious offenses against international humanitarian laws points to the direction of the sitting President of this Republic. With a strong and well-established case law in his favor, exempting him from any judicial proceeding, whether civil or criminal, during his tenure, can the President be held on trial for his serious violations of international humanitarian law?

The most relevant query in this thesis is this: If the sitting President invokes his executive immunity from suit for commission of any of the international crimes defined under the Rome Statute, and the national organ supposedly tasked to investigate and prosecute the case, concurs with the defense of the President, and as a result, dismisses the case, will that constitute a ground for the exercise of the complementarity principle by the International Criminal Court, based on the UNWILLINGNESS or INABILITY of the Philippines to investigate or prosecute genuinely the case?

B. THESIS STATEMENT As earlier intimated, one of the unique and revolutionary concepts incorporated in the Rome Statute is the principle of complementarity. This thesis primordially discusses the said concept, including the issues of admissibility of a case to the International Criminal Court based on the ground of either inability or unwillingness of the state to investigate or prosecute genuinely the actor of the international crime, and ultimately, to apply this newly-emerged concept in the Philippine setting.

The exercise of complementary jurisdiction by the ICC poses an interesting question on the status of Presidential immunity from suit, a doctrine which has been well-entrenched in our judicial system. An analysis on the current trends of international customary law reveals the growing disenchantment of the international community towards the cloak of immunity granted to the highest

officials of governments for their willful commission of human rights abuses, and this writer firmly hypothesizes that despite the strong grasp of our State to the head-of-immunity, the President should still be held individually accountable should he or she commits acts of gravest concerns to the international community.

To put it differently, the proponent theorizes that, notwithstanding the penchant of our jurisdiction on the doctrine of Presidential immunity from suit, the International Criminal Court can validly exercise its complementary jurisdiction over the incumbent President who committed any core crime of international concern when the Philippines or any of its organs tasked to carry out the proceedings, by invoking the doctrine of inviolability of the President, has either made a national decision shielding the President from criminal responsibility for crimes falling within the jurisdiction of the ICC, or has committed an unjustified delay in the proceedings which under the circumstances is inconsistent with the intent to bring the guilty President to justice.

C. OBJECTIVES The primordial objective of the proponent is to analyze the nature of complementary jurisdiction of the ICC on the one hand, and to examine historically the head-of-state immunity on the other, and to apply these principles in the Philippine setting by creating a theoretical scenario to justify the admissibility of the case before the ICC.

The main intendment, therefore, is to uphold the validity of the exercise of complementary jurisdiction by ICC over an incumbent President of the Philippines who commits grave breach of international law as defined under the Rome State. Specifically, this thesis will attempt to justify the applicability of the complementarity principle in case a sitting President or the Philippines itself invokes the doctrine of immunity from suit to free the former from any individual criminal liability. The admissibility of the case before by ICC, by invoking executive immunity, shall be based on the ground of either inability or unwillingness of the Philippines to investigate or prosecute genuinely the actor of the international crime.

D. SIGNIFICANCE OF THE STUDY As complementarity is a relatively new concept in international law, its actual application consists only of very few cases including the case for indictment of Sudans President, Omar Hassan al-Bashir, on charges of genocide, crimes against humanity and war crimes committed in Darfur. Although much has been said and discussed about this principle, its actual application in a world of multitudinous states remains to be seen and felt.

This thesis supplies a plausible scenario wherein the complementary jurisdiction of the ICC may come into play. The situation contemplated in this study is one in which an incumbent President of the Philippines, relying mainly on the doctrine of immunity from suit during his tenure, attempts to be relieved scot-

free from any individual criminal responsibility for his core crimes of international concern. The thesis shall be significant in that it provides a theoretical situation wherein the principle of complementarity may operate in our jurisdiction, even piercing through the mantle of Presidential immunity, and in the process enabling the readers to have firm grasp or understanding of complementarity.

E. SCOPE AND LIMITATIONS This thesis covers the historical development of two conflicting concepts in international law the head-of-state immunity from suit and the complementarity principle of the Rome Statute up to their respective present status in customary international law. In the analysis, the proponent discusses in the main the admissibility of a case to the ICC, and its resultant exercise of jurisdiction because of a states inability or unwillingness to investigate or prosecute genuinely the case.

The thrust of the study is the invocation of Presidential immunity from suit as a defense, and that, the proponent assumes, constitutes either inability or unwillingness on the part of the Philippines to investigate or prosecute genuinely the breach of international law by the President.

The thesis does not focus heavily on other specific instances when the state may be identified as unwilling or unable, although they are discussed in passing in Chapter 4. Furthermore, it does not delve into other concepts

embodied in the Rome Statute, such as command responsibility, due process in international level, and waiver of immunity and consent to surrender.

F. METHODOLOGY The proponent utilizes the analytical and historical methodologies in conducting its research and in preparing this thesis. Analytical research involves in-depth study and evaluation of available information in an attempt to explain complex phenomenon. Related literature on complementarity principle of the Rome Statute and the doctrine of immunity from suit were obtained by the author in order to have an adequate understanding of the subjects which are both concepts in international law.

As mentioned above, another method that is employed by the writer is the historical research. Again, both concepts are products of evolution of customary international law. The development of the head-of-state immunity, which evolved from the much older doctrine of sovereign immunity, and the emerging complementarity principle, are taken into consideration by the author to analyze the present trend of international law and jurisprudence.