Agreement need not be in the form of a treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise known as the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.”  Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17.  Jurisdiction. –  x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime.  Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.  (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes.  Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA 9851, thePhilippineshas only two options, to wit: (1) surrender the accused to the proper international tribunal; or (2) surrender the accused to another State if such surrender is “pursuant to the applicable extradition laws and treaties.”  But thePhilippinesmay exercise these options only in cases where “another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime;” otherwise, thePhilippinesmust prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a USnational under prosecution by an international tribunal for any crime under RA 9851, the Philippineshas the option to surrender such USnational to the international tribunal if it decides not to prosecute such USnational here.  The view asserts that this option of the Philippinesunder Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the USbefore the Philippinescan exercise such option, requires an amendatory law.  In line with this scenario, the view strongly argues that the Agreement prevents the Philippines—without the consent of the US—from surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.  Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the Philippinesadopts, as a national policy, the “generally accepted principles of international law as part of the law of the land,” the Court is further impressed to perceive the Rome Statute as declaratory of customary international law.  In other words, the Statute embodies principles of law which constitute customary international law or custom and for which reason it assumes the status of an enforceable domestic law in the context of the aforecited constitutional provision.  As a corollary, it is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of the executive branch, can only implement, but cannot amend or repeal, an existing law.  The Agreement, so the argument goes, seeks to frustrate the objects of the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is repugnant to RA 9851.  For another, the view does not clearly state what precise principles of law, if any, the Agreement alters.  And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely reinforces the primacy of the national jurisdiction of theUS and thePhilippines in prosecuting criminal offenses committed by their respective citizens and military personnel, among others.  The jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide and other crimes against humanity;[70] (2) provides penal sanctions and criminal liability for their commission;[71] and (3) establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal jurisdiction.[72]  Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons.  This view is not entirely correct, for the above quoted proviso clearly provides discretion to the Philippine State on whether to surrender or not a person accused of the crimes under RA 9851.  The statutory proviso uses the word “may.”  It is settled doctrine in statutory construction that the word “may” denotes discretion, and cannot be construed as having mandatory effect.[73]  Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise its primary jurisdiction in cases where “another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime,” still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851.  Said legal proviso aptly provides that the surrender may be made “to another State pursuant to the applicable extradition laws and treaties.”  The Agreement can already be considered a treaty following this Court’s decision in Nicolas v. Romulo[74] which cited Weinberger v. Rossi.[75] In Nicolas, We held that “an executive agreement is a ‘treaty’ within the meaning of that word in international law and constitutes enforceable domestic law vis-à-vis the United States.”[76]

Likewise, the Philippinesand the USalready have an existing extradition treaty, i.e., RP-US Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977.  Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.

The view’s reliance on Suplico v. Neda[77] is similarly improper. In that case, several petitions were filed questioning the power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took judicial notice of the act of the executive department of thePhilippines (the President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive agreement. He stated that “an executive agreement has the force and effect of law x x x [it] cannot amend or repeal prior laws.”[78] Hence, this argument finds no application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, “[a]n offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties x x x,”[79] and thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an international crime unless Congress adopts a law defining and punishing the offense.

This view must fail.

On the contrary, theUShas already enacted legislation punishing the high crimes mentioned earlier. In fact, as early as October 2006, theUSenacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of “war crimes” which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:

(a)    Offense – Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b)   Circumstances – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in Section 101 of the Immigration and Nationality Act).

(c)    Definition – As used in this Section the term “war crime” means any conduct –

(1)   Defined as a grave breach in any of the international conventions signed atGeneva12 August 1949, or any protocol to such convention to which theUnited Statesis a party;

(2)   Prohibited by Article 23, 25, 27 or 28 of the Annex tothe HagueConvention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3)   Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when committed in the context of and in association with an armed conflict not of an international character; or

(4)   Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.[80]

Similarly, in December 2009, theUSadopted a law that criminalized genocide, to wit:

§1091. Genocide

(a)                Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such–

(1)   kills members of that group;

(2)   causes serious bodily injury to members of that group;

(3)   causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

(4)   subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

(5)   imposes measures intended to prevent births within the group; or

(6)   transfers by force children of the group to another group;

shall be punished as provided in subsection (b).[81]

Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under theUSlaws versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled “On Trial: The US Military and the International Criminal Court,” as its basis.

          At the outset, it should be pointed out that the report used may not have any weight or value under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The report does not fall under any of the foregoing enumerated sources. It cannot even be considered as the “teachings of highly qualified publicists.” A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars or “academic writers.”[82] It has not been shown that the authors[83] of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute vis-à-vis the definitions under US laws:

RomeStatute

US Law

Article 6

Genocide

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

§1091. Genocide

 

(a)        Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b).

Article 8

War Crimes

2. For the purpose of this Statute, “war crimes” means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: x x x[84]

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

x x x x

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

x x x x

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: x x x.

(a)    Definition – As used in this Section the term “war crime” means any conduct –

(1)   Defined as a grave breach in any of the international conventions signed atGeneva12 August 1949, or any protocol to such convention to which theUnited Statesis a party;

(2)   Prohibited by Article 23, 25, 27 or 28 of the Annex tothe HagueConvention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3)   Which constitutes a grave breach of common Article 3 (as defined in subsection [d][85]) when committed in the context of and in association with an armed conflict not of an international character; or

(4)   Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.[86]

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within the Uniform Code of Military Justice that would expose US personnel to the Court. Since USmilitary lawyers were instrumental in drafting the elements of crimes outlined in the Rome Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and the Rome Statute, military experts argued, could be addressed through existing military laws.[87] x x x

The report went on further to say that “[a]ccording to those involved, the elements of crimes laid out in the Rome Statute have been part of USmilitary doctrine for decades.”[88] Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the USnotably follows the doctrine of incorporation.  As early as 1900, the esteemed Justice Gray in The Paquete Habana[89] case already held international law as part of the law of theUS, to wit:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for the trustworthy evidence of what the law really is.[90] (Emphasis supplied.)

Thus, a person can be tried in the USfor an international crime despite the lack of domestic legislation.  The cited ruling in U.S. v. Coolidge,[91] which in turn is based on the holding in U.S. v. Hudson,[92] only applies to common law and not to the law of nations or international law.[93] Indeed, the Court in U.S. v. Hudson only considered the question, “whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases.”[94] Stated otherwise, there is no common law crime in theUS but this is considerably different from international law.

The USdoubtless recognizes international law as part of the law of the land, necessarily including international crimes, even without any local statute.[95] In fact, years later, US courts would apply international law as a source of criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quirin[96] the US Supreme Court noted that “[f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.”[97] It went on further to explain that Congress had not undertaken the task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns. An Act of Congress punishing ‘the crime of piracy as defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it has adopted by reference the sufficiently precise definition of international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders or offenses that x x x by the law of war may be triable by such military commissions. Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war x x x, and which may constitutionally be included within that jurisdiction.[98] x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war crimes and crimes against humanity have attained the status of customary international law. Some even go so far as to state that these crimes have attained the status of jus cogens.[99]

Customary international law or international custom is a source of international law as stated in the Statute of the ICJ.[100] It is defined as the “general and consistent practice of states recognized and followed by them from a sense of legal obligation.”[101] In order to establish the customary status of a particular norm, two elements must concur: State practice, the objective element; and opinio juris sive necessitates, the subjective element.[102]

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.[103] It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3) duration.[104] While, opinio juris, the psychological element, requires that the state practice or norm “be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”[105]

“The term ‘jus cogens’ means the ‘compelling law.’”[106] Corollary, “a jus cogens norm holds the highest hierarchical position among all other customary norms and principles.”[107] As a result, jus cogens norms are deemed “peremptory and non-derogable.”[108] When applied to international crimes, “jus cogens crimes have been deemed so fundamental to the existence of a just international legal order that states cannot derogate from them, even by agreement.”[109]

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., “any state may exercise jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for jurisdiction exists.”[110] “The rationale behind this principle is that the crime committed is so egregious that it is considered to be committed against all members of the international community”[111] and thus granting every State jurisdiction over the crime.[112]

          Therefore, even with the current lack of domestic legislation on the part of theUS, it still has both the doctrine of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., “established, widespread, and consistent practice on the part of States,”[113] does not, under the premises, appear to be obtaining as reflected in this simple reality:  As of October 12, 2010, only 114[114] States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002.  The fact that 114 States out of a total of 194[115] countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary law and should be deemed as obligatory international law.  The numbers even tend to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute.  Lest it be overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome Statute.  Res ipsa loquitur.  More than eight (8) years have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus:

Custom or customary international law means “a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris] x x x.” This statement contains the two basic elements of custom: the material factor, that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the way they do.

x x x x

          The initial factor for determining the existence of custom is the actual behavior of states.  This includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long.  x x x

x x x x

Duration therefore is not the most important element.  More important is the consistency and the generality of the practice.  x x x

x x x x

Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do.  Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy?  Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule.  Without it, practice is not law.[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner.  This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.[117]  Like the first element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent.[118] Even further, the Rome Statute specifically and unequivocally requires that: “This Statute is subject to ratification, acceptance or approval by signatory States.”[119] These clearly negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, “[t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.”[120] The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

 http://sc.judiciary.gov.ph/jurisprudence/2011/february2011/159618.htm

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Executive Agreements, International Law, Political Law, Statutes and tagged . Bookmark the permalink.

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