Besieged by allegations that it is behind the spate of extrajudicial killings and enforced disappearances in the country, the Armed Forces of the Philippines (AFP) has expressed reservation to a treaty that deals with crimes against humanity, fearing it could be used to discredit the military institution.

But Supreme Court (SC) Chief Justice Reynato Puno disagreed, saying the trend on international jurisprudence is to prosecute serious violations on human rights and an international criminal court “could provide an additional firewall” against violations.

In a paper presented Friday at the concluding day on the conference on the International Criminal Court (ICC), AFP Inspector Gen. Ferdinand Bocobo said that while the adoption of the Rome Statute of the ICC “is a positive step towards upholding the law,” such can be taken advantage of by State enemies to embarrass or shame the government before the international community.

Bocobo, who presented the paper in behalf of AFP Chief of Staff Gen. Alexander Yano, cited the local experience where atrocities and internal purging were committed by State enemies and lawless elements and for which the blame is being put on the military.

“The AFP positively welcomes formal charges made in the courts law…and to indemnify the victims if deemed necessary. However it must be said that in many cases, the lack of witnesses for the successful prosecution is deliberately caused by the insurgents themselves and their allies to prolong the issues to discredit the AFP. The longer the cases drag, the better the enemies can exploit the situation to negatively portray the AFP in a bad light,” he said.

This could explain the government’s continued refusal to adopt the Rome Statute on the ICC, which binds the country to submit itself to the international court to prosecute crimes against humanity, like genocide, war crimes and crime of aggression.
 
The government is yet to submit to the Senate the Rome Treaty, adopted already by 106 countries, for ratification. The Integrated Bar of the Philippines, in a statement Thursday, said the government’s refusal “is dictated more by politics and power alignments than by a true intent and desire to join the international community in the prosecution of crimes.”

In adopting a wary eye on the ICC, the AFP paper maintained that there exists a “realistic scenario” that the treaty “may serve as a convenient venue for filing partisan and politically-motivated cases of human rights violations against uniformed men to hog-tie our security efforts against terrorists and lawless elements.”

Extra-judicial killings

On the issue of enforced disappearances and extra-judicial killings for instance, the AFP insisted that allegations that the institution is behind it “are generally propaganda.”

Bocobo said that there are few AFP personnel who "have crossed the line,” and the organization, as a policy, “does not condone, tolerate, encourage or utilize illegal means such as torture and assassination to do our mission.”

On the contrary, such acts being blamed on the military were the handiworks themselves of State enemies and lawless elements. Bocobo cited as examples the mass graves of the victims prompted by internal purging in the communist movement and the attacks of some elements of the Moro Islamic Liberation Front on civilian communities in Central Mindanao.

The AFP paper also raised question on the capacity of the ICC as a “neutral forum” to dispense justice on serious crimes against humanity while at the same time insulating it from partisan interests.

“We need to ask the hard questions: Will the assumption of jurisdiction by the Court with respect to unwilling State parties, whose nationals are being investigated, or prosecuted, threaten their sovereignty? What would be the review procedure? Are these existing checks and balances in the exercise of jurisdiction and the exercise of power to investigate and prosecute these grave offenders?” the AFP paper asked.

Adequate safeguards

But even without the country submitting itself to the jurisdiction of the ICC, the AFP maintained that there are adequate safeguards to prosecute and hold liable erring AFP members for serious crimes.

One of these is the dictum on command responsibility to instill accountability among the soldiers. “It is just a matter of instituting discipline in the organization to prevent abuses from occurring, and allows us to prosecute the guilty,” Bocobo said.

In his closing remarks, Chief Justice Puno said the ICC would be an effective mechanism to protect and uphold human rights which, to a large extent, the enforcement has been heavily dependent on the government’s commitment.

He cited amnesty, statutes on limitation, prohibition on double-jeopardy and grant of immunities granted and passed by States that had human rights violators escaping punishment.

But these impediments, Puno noted, “will not pose as insurmountable problems for the ICC” considering its mandate and “the emerging jurisprudence in international criminal law.”

For instance, Article 29 of the ICC provides that “the crimins within the jurisdiction of the Court shall not be subject to any statute of limitation,” Puno noted.

Growing jurisprudence support the non-applicability of statute of limitation on serious violations on human rights, he added.