No to the ICC

is the subject of my Trade Tripper column this Friday-Saturday issue of BusinessWorld:

This thought bears repeating as the circumstances seem to keep damnably recurring: in the world of international law, it is a truth universally acknowledged that the Philippines is indeed more popish than the pope. Really, we have created the very strong impression that we’d rather adhere to international law even over that of our own domestic laws (or interests) on any given subject.

We’re probably the only country in this planet like that. One example is the enactment of RA 9851 or the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity," considering that the necessity for it, more so the urgency with which such law was passed, is -- simply put -- not present.

Now the reason why I have to emphasize this point again is because of the recent resurgence to have the Philippines join the International Criminal Court. The Philippines signed the Rome Statute of the International Criminal Court way back in December 2000. However, past administrations (wisely, I believe) refrained from submitting it to the Senate for the latter’s concurrence, thereby effectively excluding us from the jurisdiction of the ICC.

Unfortunately, the present government seems to be intent in placing us under the authority and powers of the ICC. On the occasion of a visit a few weeks ago by Sang-Hyun Song, president of the International Criminal Court, President Noynoy Aquino was reported (in another newspaper, not BusinessWorld) to have said: "You do not even have to persuade me to join the Court. In fact, I have already sent the Rome Statute to our Senate for its concurrence." With the President, in that event, it was said, were the secretaries of the Departments of Justice and National Defense, the solicitor general, and the president’s legal team.

Whether this was done upon the urgings of some well-meaning (is there any other kind?) advocacy group or on actual, real thought through considerations is something that should be determined. Because, frankly, membership, particularly right now, in the ICC is a bad idea.

The ICC is a permanent institution, exercising jurisdiction over persons for the most serious crimes of international concern. Envisioned to operate similarly to the International Court of Justice, the court, however, exercises jurisdiction over individuals committing the crimes of genocide, aggression, serious violations of laws and customs applicable to armed conflict, crimes against humanity, and other such crimes.

The idea of an international criminal tribunal is something everybody agrees to be a good one, it’s just that nobody can conclusively say how to go about executing it properly. It must be emphasized that the Philippines is not involved in any international armed conflict and the chances of the Philippines making use of the ICC to protect its citizens is minimal. Notably, Malaysia, Indonesia, Vietnam, or China (our co-claimants to the Spratly or Kalayaan islands) or Libya, Saudi Arabia, United Arab Emirates, or Pakistan (where a lot of our OFWs are) are not parties to the ICC. This means that we can’t use the ICC to protect our soldiers defending our interests or OFW rights. In any event, there are other avenues available to the Philippines in that regard.

But the biggest problem has to do with the ICC’s jurisdiction because international criminal cases can be hurled against our police or military officers, even public officials, upon the mere instigation by any foreign or local individual. Which leads us to issues of national security and national interests. Assuming that the Philippines want to assert its rights in relation to territorial integrity, particularly in view of Mindanao, our public and military officials will now be working warily under the cloud that at any moment they could be hauled off to and imprisoned by an international court just because charges were filed by some foreigner or even by a domestic crusading lawyer out to make a name for himself.

Don’t get me wrong: I do believe that human rights in this country should be aggressively protected. I also believe that national interests should be upheld. To uphold those two concerns, at this time, is a matter I would trust fellow Filipinos (and Philippine institutions) with, who know our peculiar circumstances and interests (flawed as they may be on occasion) rather than some foreigner at The Hague. This is an aspect of us being a sovereign nation.

Besides, the ICC itself is flawed, as can be seen from the above. Cases can be filed merely from the view of political grandstanding. And there is no safeguard against the probability that prosecutions can be made against our public or military officials due to ideological or foreign-funded interests. Finally, the ICC can even override our sovereignty by claiming jurisdiction over cases that our courts are already trying under certain exceptions to the "complementarity" principle.

All in all, the ICC is a good idea. It’s just not something that the Philippines should be concerning itself with right now.