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Showing posts with label ALBERTO ROMULO. Show all posts
Showing posts with label ALBERTO ROMULO. Show all posts

Wednesday, June 1, 2016

G.R. No. 159618_WHEN AGREEMENT IN CONFLICT WITH LAW THE LAW PREVAILS


PERSONAL REFERENCE STUDY GUIDE


EN BANC
G.R. No. 159618 BAYAN MUNA, represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, Petitioners v. ALBERTO ROMULO, et al., Respondents.


Promulgated:
February 1, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x


DISSENTING OPINION

CARPIO, J.:


I dissent.

The RP-US Non-Surrender Agreement (Agreement) violates existing municipal laws on the Philippine States obligation to prosecute persons responsible for any of the international crimes of genocide, war crimes and other crimes against humanity. Being a mere executive agreement that is indisputably inferior to municipal law, the Agreement cannot prevail over a prior or subsequent municipal law inconsistent with it.

First, under existing municipal laws arising from the incorporation doctrine in Section 2, Article II of the Philippine Constitution,1 the State is required to surrender to the proper international tribunal persons accused of grave international crimes, if the State itself does not exercise its primary jurisdiction to prosecute such persons.

Second, and more importantly, Republic Act No. 9851 (RA 9851) or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanityrequires that the RP-US Non-Surrender Agreement, which is in derogation of the duty of the Philippines to prosecute those accused of grave international crimes, should be ratified as a treaty by the Senate before the Agreement can take effect.

Section 2 of RA 9851 adopts as a State policy the following:

Section 2. Declaration of Principles and State Policies. -

(a) x x x
x x x
(e) The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. (Emphasis supplied)

To implement this State policy, Section 17 of RA 9851 provides:

Section 17. Jurisdiction. - The State shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the crime is committed, provided, any one of the following conditions is met:

(a) The accused is a Filipino citizen;
(b) The accused, regardless of citizenship or residence, is present in the Philippines; or
(c) The accused has committed the said crime against a Filipino citizen.
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 isalready 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. (Boldfacing, italicization and underscoring supplied)

Section 2(e) and Section 17 impose on the Philippines the duty to prosecute a person present in the Philippines, regardless of citizenship or residence of such person, who is accused of committing a crime under RA 9851 regardless of where the crime is committed. The Philippines is expressly mandated by law to prosecute the accused before its own courts.

If the Philippines decides not to prosecute such accused, the Philippines has only two options. First, it may surrender the accused to the appropriate international court such as the International Criminal Court (ICC). Or second, it may surrender the accused to another State if such surrender is pursuant to the applicable extradition laws and treaties. Under the second option, the Philippines must have an applicable extradition law with the other State, or both the Philippines and the other State must be signatories to an applicable treaty. Such applicable extradition law or treaty must not frustrate the Philippine State policy, which embodies a generally accepted principle of international law, that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.

In any case, the Philippines can exercise either option only if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. In short, the Philippines should surrender the accused to another State only if there is assurance or guarantee by the other State that the accused will be prosecuted under the other State's criminal justice system. This assurance or guarantee springs from the principle of international law that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.

There is at present no applicable extradition law or treaty allowing the surrender to the United States of U.S. nationals accused of crimes under RA 9851, specifically, Crimes against International Humanitarian Law or War Crimes,2 Genocide,3 and Other Crimes against Humanity.4

The RP-US Extradition Treaty cannot be considered an applicable extradition law or treaty. Paragraph 1, Article 2 of the RP-US Extradition Treaty provides: An offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties xxx.5

The rule in the United States is that a person cannot be tried in the federal courts for an international crime unless the U.S. Congress adopts a law defining and punishing the offense.6 InMedellin v. Texas,7 the U.S. Supreme Court held that while treaties may comprise international commitments ... they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be self-executing and is ratified on these terms. The U.S. Congress has not enacted legislation to implement theGeneva Conventions of 1949 (Geneva Conventions)8 which is one of the foundations of the principles of International Humanitarian Law. While the U.S. Senate has ratified the Geneva Conventions,9 the ratification was not intended to make the Geneva Conventions self-executing under U.S. domestic law.10

The United States has not ratified the Rome Statute of International Criminal Court (Rome Statute). While the Philippines has also not ratified the Rome Statute, it has criminalized under RA 9851 all the acts defined in the Rome Statute as Genocide, War Crimes and Other Crimes against Humanity. There is no similar legislation in the United States.

Not all crimes punishable under the Rome Statute are considered crimes under U.S. laws. A report11 based partly on interviews with representatives of the U.S. delegation in Rome stated: The domestic laws of the United States xxx do not cover every crime listed within the jurisdiction of the [International Criminal] Court.12 The report further explained the gap between the definitions of Genocide, War Crimes and Other Crimes against Humanity, under the Rome Statute and under U.S. domestic laws, in this wise:13


ICC Statute in Contrast to the US Code

In conversations with both proponents and opponents of the Court, many suggested that while the US has objected to the Courts potential authority
over US service members, what really lies behind that concern is the recognition that those most vulnerable to the scrutiny of the Court are notably higher up in the chain of command: the civilian and senior military leadership.

Legal experts, both in the military and outside, pointed out that there were more likely to be gaps between the US Code and the Rome Statute than gaps with the Uniform Code of Military Justice. After retirement, military personnel are not covered by the UCMJ, but instead would be held accountable to the US Code, in particular Title 10 and Title 18. For some retired military personnel, this was an area of some concern.

These individuals offered that former leaders, in particular the Henry Kissingers of the world, are most at risk. Indeed, they stressed that as the main concern for the US: that the Court will take up cases of former senior civilian leadership and military officials who, acting under the laws of war, are no longer covered by the UCMJ and therefore, potentially open to gaps in federal law where the US ability to assert complementarity is nebulous. The fear is that they could be subject to ICC prosecution for actions they did previously in uniform.

One legal scholar pointed out that several crimes defined within the Rome Statute do not appear on the US books (e.g., apartheid, persecution, enslavement, and extermination.) While similar laws exist, it would be within the competency of the Chief Prosecutor to argue before the Pre-Trial Chamber14 that in fact, the US does not have laws to prosecute for the crimes that have been committed. A similar situation arose in 1996, when Congressman Walter Jones (R-NC) determined through a series of investigations that civilians serving overseas under a contract with the US military were not covered under the UCMJ. It had been assumed that the US Code gave US primacy over civilians serving in a military capacity, but instead it was discovered that if a civilian serving with a military unit deployed overseas is accused of war crime, the foreign state whose territory the crimes were committed in would in fact have primary jurisdiction to try the case. Therefore, Rep. Jones authored the War Crimes Act of 1996, which was designed to cover civilian serving in a military capacity.15

To ensure that no gaps exist between the US Code, the UCMJ, and the crimes within the Courts jurisdiction, a similar effort could be made. This process would need to identify first where crimes exist in the Statute that are not covered in some context through Title 10 and Title 18 of the US Code and then draft legislation modeled after the War Crimes Act designed to fill gaps. This would protect former US service members and senior civilian leadership from ICC prosecution.

There is very little discussion today about the gaps in law. Scholars are aware of the potential gaps and see this area as one where the US might be able to move forward to clarify legal ambiguities that may exist, and to make corrections to US laws. This exercise would strengthen the US assertion of complementarity. (Emphasis supplied)

The same report added, At Rome, the U.S. was concerned with the definition of crimes, especially the definition of war crimes and, to lesser extent, the definition of crimes against humanity xxx;16 that the crime of genocide was acceptable to the U.S. delegation; and that throughout the negotiations, the U.S. position was to seek one hundred percent assurance that U.S. service members would only be held accountable to U.S. systems of justice.17

With the existing gap between the crimes of Genocide, War Crimes and Other Crimes against Humanity under the Rome Statute - now all criminalized in the Philippines under RA 9851 on the one hand, and U.S. domestic laws on the other, these crimes cannot be considered punishable under the laws in both Contracting Parties as required under the RP-US Extradition Treaty, and hence, cannot be considered as extraditable offenses under the treaty. The crimes considered as Genocide, War Crimes, and Other Crimes against Humanity under the Rome Statute and RA 9851 may not necessarily be considered as such crimes under United States laws. Consequently, the RP-US Extradition Treaty does not qualify as an applicableextradition law or treaty under Section 17 of RA 9851, which allows the Philippines to surrender to another state a person accused of Genocide, War Crimes and Other Crimes against Humanity. In short, the Philippines cannot surrender to the United States a U.S. national accused of any of these grave international crimes, when the United States does not have the same or similar laws to prosecute such crimes.

Neither is the RP-US Non-Surrender Agreement an applicable extradition law or treaty as required in Section 17 of RA 9851. Thus, the Agreement cannot be implemented by the Philippine Government in the absence of an applicable extradition law or treaty allowing the surrender to the United States of U.S. nationals accused of crimes under RA 9851.

If a U.S. national is under investigation or prosecution by an international tribunal for any crime punishable under RA 9851, the Philippines has the option to surrender such U.S. national to the international tribunal if the Philippines decides not to prosecute such U.S. national in the Philippines. This option of the Philippine Government under Section 17 of RA 9851 is not subject to the consent of the United States. Any derogation from Section 17, such as requiring the consent of the United States before the Philippines can exercise such option, requires an amendment to RA 9851 by way of either an extradition law or treaty. Such an amendment cannot be embodied in a mere executive agreement or an exchange of notes such as the assailed Agreement.
Section 17 of RA 9851 has clearly raised to a statutory level the surrender to another State of persons accused of any crime under RA 9851. Any agreement in derogation of Section 17, such as the surrender to the U.S. of a U.S. national accused of an act punishable under RA 9851 but not punishable under U.S. domestic laws, or the non-surrender to an international tribunal, without U.S. consent, of a U.S. national accused of a crime under RA 9851, cannot be made in a mere executive agreement or an exchange of notes. Such surrender or non-surrender, being contrary to Section 17 of RA 9851, can only be made in an amendatory law, such as a subsequent extradition law or treaty.

Moreover, Section 17 of RA 9851 allows the surrender to another State only if another court xxx is already conducting the investigation or undertaking the prosecution of such crime. This means that only if the other State is already investigating or prosecuting the crime can the Philippines surrender the accused to such other State. The RP-US Non-Surrender Agreement does not require that the United States must already be investigating or prosecuting the crime before the Philippines can surrender the accused. In fact, a U.S. national accused of a crime under RA 9851 may not even be chargeable of such crime in the U.S. because the same act may not be a crime under U.S. domestic laws. In such a case, the U.S. cannot even conduct an investigation of the accused, much less prosecute him for the same act. Thus, the RP-US Non-Surrender Agreement violates the condition in Section 17 of RA 9851 that the other State must already be investigating or prosecuting the accused for the crime penalized under RA 9851 before the Philippines can surrender such accused.

To repeat, the assailed Agreement prevents the Philippines, without the consent of the United States, from surrendering to any international tribunal U.S. nationals accused of crimes under RA 9851. Such consent is not required under RA 9851which mandates that any non-surrender without the consent of another State must be embodied in an extradition law or treaty. The assailed Agreement also dispenses with the condition in Section 17 that before the Philippines can surrender the accused to the United States, the accused must already be under investigation or prosecution by the United States for the crime penalized under RA 9851, a condition that may be impossible to fulfill because not all crimes under RA 9851 are recognized as crimes in the United States. Thus, the Agreement violates Section 17 of RA 9851 as well as existing municipal laws arising from the incorporation doctrine of the Constitution. The Agreement cannot be embodied in a simple executive agreement or an exchange of notes, but must be implemented through an extradition law or a treaty ratified with the concurrence of at least two-thirds of all the members of the Senate.

In international law, there is no difference between treaties and executive agreements on their binding effect upon party states, as long as the negotiating functionaries have remained within their powers.18 However, while the differences in nomenclature and form of various types of international agreements are immaterial in international law, they have significance in the municipal law of the parties.19 An example is the requirement of concurrence of the legislative body with respect to treaties, whereas with respect to executive agreements, the head of State may act alone to enforce such agreements.20

The 1987 Philippine Constitution provides: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.21 This express constitutional requirement makes treaties different from executive agreements, which require no legislative concurrence.

An executive agreement can only implement, and not amend or repeal, an existing law. As I have discussed in Suplico v. National Economic and Development Authority,22 although an executive agreement has the force and effect of law, just like implementing rules of executive agencies, it cannot amend or repeal prior laws, but must comply with the laws it implements.23An executive agreement, being an exclusive act of the Executive branch, does not have the status of a municipal law.24  Acting alone, the Executive has no law-making power; and while it has rule-making power, such power must be exercised consistent with the law it seeks to implement.25

Thus, an executive agreement cannot amend or repeal a prior law, but must comply with State policy embodied in an existing municipal law.26 This also means that an executive agreement, which at the time of its execution complies with then existing law, is deemed amended or repealed by a subsequent law inconsistent with such executive agreement. Under no circumstance can a mere executive agreement prevail over a prior or subsequent law inconsistent with such executive agreement.
This is clear from Article 7 of the Civil Code, which provides:
Article 7. x x x
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied)


An executive agreement like the assailed Agreement is an executive act of the PresidentUnder Article 7 of the Civil Code, an executive agreement contrary to a prior law is void. Similarly, an executive agreement contrary to a subsequent law becomes void upon the effectivity of such subsequent law. Since Article 7 of the Civil Code provides that executive acts shall be valid only when they are not contrary to the laws, once an executive act becomes contrary to law such executive act becomes void even if it was valid prior to the enactment of such subsequent law.
A treaty, on the other hand, acquires the status of a municipal law upon ratification by the Senate. Hence, a treaty may amend or repeal a prior law and vice-versa.27 Unlike an executive agreement, a treaty may change state policy embodied in a prior and existing law.

In the United States, from where we adopted the concept of executive agreements, the prevailing view is that executive agreements cannot alter existing law but must conform to all statutory requirements.28  The U.S. State Department made a distinction between treaties and executive agreements in this manner:

x x x it may be desirable to point out here the well-recognized distinction between an executive agreement and a treaty.  In brief, it is that the former cannot alter the existing law and must conform to all statutory enactments, whereas a treaty, if ratified by and with the advice and consent of two-thirds of the Senate, as required by the Constitution, itself becomes the supreme law of the land and takes precedence over any prior statutory enactments.29 (Emphasis supplied)


The Agreement involved in this case is an executive agreement entered into via an exchange of notes.30 The parties to the Agreement (RP and US) agree not to surrender each others nationals31 to any international tribunal or to a third party for the purpose of surrendering to any international tribunal, without the others consent, pursuant to the pronounced objective of protect[ing] Philippine and American personnel from frivolous and harassment suits that might be brought against them in international tribunals.32 The Agreement amends existing Philippine State policy as embodied in municipal law arising from generally accepted principles of international law which form part of the law of the land. The Agreement also runs counter to RA 9851 which criminalized wholesale all acts defined as international crimes in the Rome Statute, an international treaty which the Philippines has signed but has still to ratify.33 The Agreement frustrates the objectives of generally accepted principles of international law embodied in the Rome Statute. Thus, considering its nature, the Agreement should be embodied not in an executive agreement, but in a treaty which, under the Philippine Constitution, shall be valid and effective only if concurred in by at least two-thirds of all the members of the Senate.

The 1987 Philippine Constitution states as one of its principles, as follows:

The Philippines x x x adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.34

This constitutional provision enunciates the doctrine of incorporation which mandates that the Philippines is bound by generally accepted principles of international law which automatically form part of Philippine law by operation of the Constitution.35

In Kuroda v. Jalandoni,36 this Court held that this constitutional provision is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. The pertinent portion of Kuroda states:
It cannot be denied that the rules and regulation of The Hague and Geneva Conventions form part of and are wholly based on the generally accepted principles of international law. x x x Such rule and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.37 (Emphasis supplied)


Hence, generally accepted principles of international law form part of Philippine laws even if they do not derive from treaty obligations of the Philippines.38

Generally accepted principles of international law, as referred to in the Constitution, include customary international law.39 Customary international law is one of the primary sources of international law under Article 38 of the Statute of the International Court of Justice.40 Customary international law consists of acts which, by repetition of States of similar international acts for a number of years, occur out of a sense of obligation, and taken by a significant number of States.41 It is based on custom, which is a clear and continuous habit of doing certain actions, which has grown under the aegis of the conviction that these actions are, according to international law, obligatory or right.42 Thus, customary international law requires the concurrence of two elements: [1] the established, wide-spread, and consistent practice on the part of the States; and [2] a psychological element known as opinion juris sive necessitatis (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.43

Some customary international laws have been affirmed and embodied in treaties and conventions. A treaty constitutes evidence of customary law if it is declaratory of customary law, or if it is intended to codify customary law. In such a case, even a State not party to the treaty would be bound thereby.44 A treaty which is merely a formal expression of customary international law is enforceable on all States because of their membership in the family of nations.45 For instance, the Vienna Convention on Consular Relations is binding even on non-party States because the provisions of the Convention are mostly codified rules of customary international law binding on all States even before their codification into the Vienna Convention.46 Another example is the Law of the Sea, which consists mostly of codified rules of customary international law, which have been universally observed even before the Law of the Sea was ratified by participating States.47

Corollarily, treaties may become the basis of customary international law. While States which are not parties to treaties or international agreements are not bound thereby, such agreements, if widely accepted for years by many States, may transform into customary international laws, in which case, they bind even non-signatory States.48

In Republic v. Sandiganbayan,49 this Court held that even in the absence of the Constitution,50 generally accepted principles of international law remain part of the laws of the Philippines. During the interregnum, or the period after the actual takeover of power by the revolutionary government in the Philippines, following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional Constitution), the 1973 Philippine Constitution was abrogated and there was no municipal law higher than the directives and orders of the revolutionary government. Nevertheless, this Court ruled that even during this period, the provisions of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, to which the Philippines is a signatory, remained in effect in the country. The Covenant and Declaration are based on generally accepted principles of international law which are applicable in the Philippines even in the absence of a constitution, as during the interregnum. Consequently, applying the provisions of the Covenant and the Declaration, the Filipino people continued to enjoy almost the same rights found in the Bill of Rights despite the abrogation of the 1973 Constitution.

The Rome Statute of the International Criminal Court was adopted by 120 members of the United Nations (UN) on 17 July 1998.51 It entered into force on 1 July 2002, after 60 States became party to the Statute through ratification or accession.52 The adoption of the Rome Statute fulfilled the international communitys long-time dream of creating a permanent international tribunal to try serious international crimes. The Rome Statute, which established an international criminal court and formally declared genocide, war crimes and other crimes against humanity as serious international crimes, codified generally accepted principles of international law, including customary international laws. The principles of law embodied in the Rome Statute were already generally accepted principles of international law even prior to the adoption of the Statute. Subsequently, the Rome Statute itself has been widely accepted and, as of November 2010, it has been ratified by 114 states, 113 of which are members of the UN.53

There are at present 192 members of the UN. Since 113 member states have already ratified the Rome Statute, more than a majority of all the UN members have now adopted the Rome Statute as part of their municipal laws. Thus, the Rome Statute itself is generally accepted by the community of nations as constituting a body of generally accepted principles of international law. The principles of law found in the Rome Statute constitute generally accepted principles of international law enforceable in the Philippines under the Philippine Constitution. The principles of law embodied in the Rome Statute are binding on the Philippines even if the Statute has yet to be ratified by the Philippine Senate. In short, the principles of law enunciated in the Rome Statute are now part of Philippine domestic law pursuant to Section 2, Article II of the 1987 Philippine Constitution.

Article 89(1) of the Rome Statute provides as follows:


Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
x x x x
It is a principle of international law that a person accused of genocide, war crimes and other crimes against humanity shall be prosecuted by the international community. A State where such a person may be found has the primary jurisdiction to prosecute such person, regardless of nationality and where the crime was committed. However, if a State does not exercise such primary jurisdiction, then such State has the obligation to turn over the accused to the international tribunal vested with jurisdiction to try such person. This principle has been codified in Section 2(e) and Section 17 of RA 9851.

Moreover, Section 15 of RA 9851 has expressly adopted [r]elevant and applicable international human rights instruments as sources of international law in the application and interpretation of RA 9851, thus:
Section 15. Applicability of International Law. - In the application and interpretation of this Act, Philippine courts shall be guided by the following sources:

(a) x x x
x x x
(e) The rules and principles of customary international law;
x x x
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and
x x x. (Emphasis supplied)


The Rome Statute is the most relevant and applicable international human rights instrument in the application and interpretation of RA 9851. Section 15(g) of RA 9851 authorizes the use of the Rome Statute as a source of international law even though the Philippines is not a party to the Rome Statute. Section 15(g) does not require ratification by the Philippines to such relevant and applicable international human rights instruments. International human rights instruments to which the Philippines is a party are governed by Section 15(h), referring to treaties or conventions ratified or acceded to by the Philippines, which constitute a different category of sources of international law under Section 15 of RA 9851. Thus, Section 15(g) and Section 15(h) refer to different instruments, the former to international human rights instruments to which the Philippines is not a party, and the latter to international human rights instruments to which the Philippines is a party. By mandate of Section 15 of RA 9851, both categories of instruments are sources of international law in the application and interpretation of RA 9851.

However, paragraph 2 of the assailed RP-US Non-Surrender Agreement provides as follows:

2.      Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council.
Clearly, the Agreement is in derogation of Article 89(1) of the Rome Statute. While Article 98(2) of the Rome Statute, which states as follows:

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. (Emphasis supplied)

allows for derogation of Article 89(1) if there is an international agreement between States allowing such derogation, such international agreement, being in derogation of an existing municipal law insofar as the Philippines is concerned, must be embodied in a treaty and ratified by the Philippine Senate. Article 98(2) does not ipso facto allow a derogation of Article 89(1), but requires a further act, that is, the execution of an international agreement. Since such international agreement is in derogation of Article 89(1) of the Rome Statute and Section 17 of RA 8951, such international agreement must be ratified by the Senate to become valid and effective.

Incidentally, the RP-US Non-Surrender Agreement allows the Philippines to surrender, even without U.S. consent, a U.S. national accused of a crime under RA 9851 provided that the surrender is made to an international tribunal xxx established by the UN Security Council. The United States agrees to this because it has a veto power in the UN Security Council, a blocking power which it does not have, and cannot have, in the International Criminal Court.

The International Criminal Court created under the Rome Statute was designed to complement the efforts of states to prosecute their own citizens domestically while ensuring that those who violate international law would be brought to justice.54 A state is given a chance to exercise complementarity55 by informing the ICC of its choice to investigate and prosecute its own nationals through its own domestic courts.56 Thus, the State has the primary jurisdiction to investigate and prosecute its own nationals in its custody who may have committed the grave international crimes specified in the Rome Statute. Under the same precept, Article 98(2) of the Rome Statute allows the State of the accused to act consistently with its obligations under international agreements, and the ICC may not proceed with a request for surrender which would require such State to act otherwise. The ICC steps in and assumes jurisdiction only if the State having primary jurisdiction and custody of the accused refuses to fulfill its international duty to prosecute those responsible for grave international crimes.

The United States has not ratified the Rome Statute, and instead, entered into bilateral non-surrender agreements with countries, citing its ability to do so under Article 98(2) of the Rome Statute.57 These agreements, also called Bilateral Immunity Agreements (BIA),58 were intended as means [to provide] assurances that no U.S. citizen would be handed over to the (International Criminal) Court for investigation and prosecution of alleged crimes that fell within the Courts jurisdictionxxx59 There is currently an argument within the international community about the use of Article 98 agreements, as negotiated by the U.S. after the adoption of the Rome Statute, and whether they should be recognized as having precedent over ICCs authority.60 When Article 98 was originally included in the Rome Statute, it was intended to cover Status of Forces Agreements (SOFAs) and Status of Missions Agreements (SOMAs),61which establish the responsibilities of a nation sending troops to another country, as well as where jurisdiction lies between the U.S. and the host government over criminal and civil issues involving the deployed personnel.62 However, under the BIAs, the standard definition of persons covered is current or former Government officials, employees (including contractors), or military personnel or nationals of one party.63 The Bush Administration64 contends that such bilateral non-surrender agreements are Article 98(2) agreements and that all US citizens of whatever character are covered by any such agreement, xxx [and this] US position on scope of the bilateral non-surrender agreements, namely that it includes US citizens acting in their private capacity, ῾is legally supported by the text, the negotiating record, and precedent.65 Meanwhile, international legal scholars and members of the US JAG Corps involved in the drafting of the Rome Statute expressed frustration with the expansive use of Article 98 agreements to apply to all Americans, not just those individuals usually covered in SOFAs and SOMAs.66 There are even those who contend that since the BIAs do not deal solely with the conduct of official business, rather, they apply to a wide variety of persons who may be on the territory of either party for any purpose at any time, then the Rome Statute does not authorize these agreements and by adhering to them, the countries will violate their obligations to the [ICC] under the Statute.67 Regardless of these contentions, however, the ultimate judge as to what agreement qualifies under Article 98(2) of the Rome Statute is the ICC itself.68

The assailed RP-US Non-Surrender Agreement covers officials, employees, military personnel, and nationals. Under the Agreement, the Philippines is not allowed, without U.S. consent, to surrender to an international tribunal, including the ICC, U.S. nationals whether military personnel or plain civilians accused of genocide, war crimes and other crimes against humanity, that is, the crimes covered by the Rome Statute and RA 9851. Whether or not this Agreement would be recognized by the ICC as an international agreement qualified under Article 98(2) depends on the ICC itself. In the domestic sphere, however, the Agreement, being in derogation of the generally accepted principles of international law embodied in Article 89(1) of the Rome Statute, as well as being contrary to the provisions of Section 17 of RA 9851, should be ratified by the Philippine Senate to be valid and effective.

In sum, any derogation from the generally accepted principles of international law embodied in the Rome Statute, which principles have the status of municipal law in this country, cannot be undertaken through a mere executive agreement because an executive agreement cannot amend existing laws. A law or a treaty ratified by the Philippine Senate is necessary to amend, for purposes of domestic law, a derogable principle of international law, such as Article 89(1) of the Rome Statute, which has the status of municipal law.
Likewise, any derogation from the surrender option of the Philippines under Section 17 of RA 9851 must be embodied in an applicable extradition law or treaty and not in a mere executive agreement because such derogation violates RA 9851, which is superior to, and prevails over, a prior executive agreement allowing such derogation. Under no circumstance can a mere executive agreement prevail over a prior or subsequent law inconsistent with such executive agreement. Thus, the RP-US Non-Surrender Agreement to be valid and effective must be ratified by the Philippine Senate, and unless so ratified, the Agreement is without force and effect.

Accordingly, I vote to GRANT the petition and to DECLARE the RP-US Non-Surrender Agreement ineffective and unenforceable unless and until ratified by the Senate of the Philippines.




ANTONIO T. CARPIO
Associate Justice
1 CONSTITUTION (1987), Art. II, Sec. 2 provides: The Philippines xxx adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
2 Section 4 of RA 9851 provides:

Section 4. War Crimes. - For the purpose of this Act, war crimes or crimes against International Humanitarian Law means:

(a) In case of an international armed conflict , grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under provisions of the relevant Geneva Convention:
(1) Willful killing;
(2) Torture or inhuman treatment, including biological experiments;
(3) Willfully causing great suffering, or serious injury to body or health;
(4) Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;
(5) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(6) Arbitrary deportation or forcible transfer of population or unlawful confinement;
(7) Taking of hostages;
(8) Compelling a prisoner a prisoner of war or other protected person to serve in the forces of a hostile power; and
(9) Unjustifiable delay in the repatriation of prisoners of war or other protected persons.
(b) In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including member of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause;
(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;
(2) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;
(3) Taking of hostages; and
(4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(c) Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, namely:
(1) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(2) Intentionally directing attacks against civilian objects, that is, object which are not military objectives;
(3) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with intentional law;
(4) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
(5) Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated;
(6) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and causing death or serious injury to body or health.
(7) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives, or making non-defended localities or demilitarized zones the object of attack;
(8) Killing or wounding a person in the knowledge that he/she is hors de combat, including a combatant who, having laid down his/her arms or no longer having means of defense, has surrendered at discretion;
(9) Making improper use of a flag of truce, of the flag or the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs under International Humanitarian Law, resulting in death, serious personal injury or capture;
(10) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. In case of doubt whether such building or place has been used to make an effective contribution to military action, it shall be presumed not to be so used;
(11) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind, or to removal of tissue or organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his/her interest, and which cause death to or seriously endanger the health of such person or persons;
(12) Killing, wounding or capturing an adversary by resort to perfidy;
(13) Declaring that no quarter will be given;
(14) Destroying or seizing the enemys property unless such destruction or seizure is imperatively demanded by the necessities of war;
(15) Pillaging a town or place, even when taken by assault;
(16) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
(17) Transferring, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
(18) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;
(19) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of common Article 3 to the Geneva Conventions;
(20) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
(21) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions and their Additional Protocols;
(22) In an international armed conflict, compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerents service before the commencement of the war;
(23) In an international armed conflict, declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
(24) Committing any of the following acts:
(i) Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed forces;
(ii) Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces; and
(iii) Using children under the age of eighteen (18) years to participate actively in hostilities; and
(25) Employing means of warfare which are prohibited under international law, such as:
(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(iii) Bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions; and
(iv) Weapons, projectiles and material and methods of warfare which are of the nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict.
x x x x
3 Section 5 of RA 9851 provides:

Section 5. Genocide. - (a) For the purpose of this Act, genocide means any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group as such:

(1) Killing members of the group;
(2) Causing serious bodily or mental harm to members of the group;
(3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(4) Imposing measures intended to prevent births within the group; and
(5) Forcibly transferring children of the group to another group.
(b) It shall be unlawful for any person to directly and publicly incite others to commit genocide.
x x x x

4 Section 6 of RA 9851 provides:

Section 6. Other Crimes Against Humanity. - For the purpose of this Act, other crimes against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Willful killing;
(b) Extermination;
(c) Enslavement;
(d) Arbitrary deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime defined in this Act;
(i) Enforced or involuntary disappearance of persons;
(j) Apartheid; and
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
x x x x
5 Emphasis supplied.
6 U.S. v. Coolidge, 14 U.S. 415, 1816 WL 1770 (U.S. Mass.) 4 L.Ed. 124, 1 Wheat. 415.
7 552 U.S. 491, 128 S. Ct. 1346 (2008).
8 The Geneva Conventions of 12 August 1949 consists of four Conventions or International Agreements:
Convention I - for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. (1864); Convention II - for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1906);Convention III - Relative to the Treatment of Prisoners of War (1929); and Convention IV - Relative to the Protection of Civilian Persons in Time of War (1949). There are three Protocols to the Geneva Conventions: Protocol I - Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977; Protocol II - Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977; and Protocol III - Relating to the Adoption of an Additional Distinctive Emblem, 8 December 2005. See http://www.icrc.org/web/eng/siteeng0.nsf/html/genevaconventions; last visited on 21 July 2010.
9 The U.S. ratified the Geneva Conventions of 1949 on 02 August 1955; the U.S. made Reservations on 02 August 1955, 04 March 1975, and 31 December 1974. See http://www.icrc.org/ihl.nsf/NORM/D6B53F5B5D14F35AC1256402003F9920?OpenDocument;
10 In Medellin v. Texas, supra note 7, the U.S. Supreme Court emphasized:
This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that- while they constitute international law commitments- do not by themselves function as binding federal law. xxx a treaty is ῾equivalent to an act of the legislature, and hence self-executing, when it ῾operates of itself without the aid of any legislative provision. xxx When, in contrast, ῾[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect. (Citations omitted)
11 Victoria K. Holt and Elisabeth W. Dallas, On Trial: The US Military and the International Criminal Court, The Henry L. Stimson Center, Report No. 55, March 2006; available at http://www.stimson.org/fopo/pdf/US_Military_and_the_ICC_FINAL_website.pdf; last visited on 02 August 2010.

This is a Report issued by the Henry Stimson Center which is described as a nonprofit, nonpartisan institution devoted to enhancing international peace and security through a unique combination of rigorous analysis and outreach. It has a stated mission of urging pragmatic steps toward the ideal objectives of international peace and security. See http://www.stimson.org/ about/?sn=AB2001110512; last visited on 11 August 2010.
12 Id. at 34-35.
The Court refers to the International Criminal Court.
13 Id. at 45-46.
14 The International Criminal Court has four organs: the Chambers, the Presidency, the Registry and the Office of the Prosecutor. The Chambers is composed of 18 judges divided into three divisions: the Pre-Trial Chamber, the Trial Chamber and the Appeals Chamber. [Id. at 22.]
15Reports Footnote: He amended Article 18 section 2441 of the US Federal Code 2441. US Code, Title 18, Part 1, Chapter 118, Section 2441, states... ῾(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). [Id. at 45.]
16 Id. at 34.
17 Id., citing Interviews with representatives of the US delegation in Rome, 28 June 2005 and 6 October 2005, and comments from the Stimson Workshop.
18 Bayan v. Zamora, G.R. No. 138570, 10 October 2000, 342 SCRA 449, 489, citing Richard J. Erickson, The Making of Executive Agreements by the United States Department of Defense: An Agenda for Progress, 13 Boston U. Intl. L.J. 58 (1995).
19 Jorge R. Coquia and Miriam Defensor Santiago, Public International Law (1984), p. 585.
20 Id.
21 CONSTITUTION (1987), Art. VII, Sec. 21.
22 Dissenting Opinion, G.R. No. 178830, 14 July 2008, 558 SCRA 329, 360-391.
23 Id. at 376, citing Land Bank of the Philippines v. Court of Appeals, 319 Phil. 246 (1995).
24 Id.
25 Id.
26 Id.
27 Id., citing Secretary of Justice v. Lantion, 379 Phil. 165 (2000).
28 Id. at 377.
29 Id., citing Prof. Edwin Borchard (Justus S. Hotchkiss Professor of Law, Yale Law School), Treaties and Executive Agreements - A Reply, Yale Law Journal, June 1945, citing Current Information Series, No. 1,  3 July 1934, quoted in 5 Hackworth, Digest of International Law (1943) pp. 425-426.
30 E/N BFO-028-03; Paper on the RP-US Non-Surrender Agreement, rollop. 72.

An exchange of notes is an interchange of diplomatic notes between a diplomatic representative and the minister of foreign affairs of the State to which he is accredited. xxx [Coquia and Santiago, supra note 3, p. 584.] It is a record of routine agreement, consisting of the exchange of two or more documents, each of the parties being in the possession of the one signed by the representative of the other, and is resorted to because of its speedy procedure, or to avoid the process of legislative approval. [Ruben Agpalo, Public International Law (2006), p. 379.]
31 The Agreement actually uses the term persons which refer to Government officials, employees (including contractors), or military personnel or nationals of one Party. See rollo, p. 68.
32 Paper on the RP-US Non-Surrender Agreement, supra note 30.
33 The Philippines signed the Rome Statute of International Criminal Court on 28 December 2000, but has yet to ratify the same. See www.iccnow.org; last visited on 12 July 2010.
34 CONSTITUTION (1987), Art. II, Sec. 2.
35 Agpalo, supra note 30, p. 421.
36 83 Phil. 171, 178 (1949).
37 Id.
38 Mijares v. Ranada, G.R. No. 139325, 12 April 2005, 455 SCRA 397, 421 citing H. Thirlway, The Sources of International Law, International Law (ed. by M. Evans, 1st ed, 2003), p. 124.
39 Jovito Salonga and Pedro Yap, Public International Law, 5th ed. (1992), p. 12.
40 Article 38 of the Statute of International Court of Justice reads:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. 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.
x x x x
41 Agpalo, supra note 30, p. 6.
42 Id., citing Oppenheimers International Law, 9th ed., p. 27.
43 Id. at 7, citing Mijares v. Ranada, supra note 38.
44 Isagani Cruz, International Law (1998), p. 23.
45 Id. at 175.
46 Agpalo, supra note 30, p. 9.
47 Id.
48 Id. at 6.
49 G.R. No. 104768, 23 July 2003, 407 SCRA 10, 51, 56-57.
50 The 1973 Philippine Constitution also provides for the Doctrine of Incorporation, to wit:


Article II
Declaration of Principles and State Policies
x x x x
Section 3. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
51 http://www.un.org/News/facts/iccfact.htm; last visited on 1 November 2010.
52 Id.
54 Victoria K. Holt and Elisabeth W. Dallas, On Trial: The US Military and the International Criminal Court, The Henry L. Stimson Center, Report No. 55, supra note 11, pp. 21-22.
55 Under the premise of complementarity, the primary jurisdiction for any case lies first with the states national judicial systems. [Id. at 35.]
56If the ICC Prosecutor believes that the crime committed is within the ICCs discretion and that investigations should be initiated, the Prosecutor must seek authorization from the Pre-Trial Chamber, which is the judicial body charged with evaluating and commencing investigations. If the Pre-Trial Chamber believes there is a reasonable basis to proceed with an investigation, and the case appears to fall within the jurisdiction of the Court, the Prosecutor must inform the states and parties involved. xxx [A] state, whether or not a member of the ICC, can exercise complementarity by informing the Court within one month of notification by the Prosecutor, that it chooses to investigate the case and, if sufficient evidence exists, to prosecute through its own national criminal justice systems. Under the Rome Statute, the Prosecutor must defer to the states request to investigate and prosecute at that national level unless the Pre-Trial Chamber determines that the state is unable or unwilling to exercise jurisdiction effectively and decides to authorize the Prosecutor to investigate the claim. [Id. at 24-25, citing the Rome Statute, Articles 15(4), 18(1-3) and 19.]
57 Id. at 16.
58 Id. at 53.
59 Id. at 11.

As of May 2005, the U.S. Administration has signed bilateral agreements with 100 countries, 42 of which are states parties to the Rome Statute, in which they pledged not to turn American citizens over to the Court. [Id. at 13 and 53.]
60 Id. at 54.
61 Id., citing AMICC, Bilateral Immunity Agreements, available at http://www.amicc.org/usinfo/ administration_policy_BIAs.html.
62 Id., citing Global Security, Status of Forces Agreements, available at http://www.globalsecurity. org/military/facility/sofa.htm.

SOFAs define the legal status of U.S. personnel and property in the territory of another country. Their purpose is to set forth rights and responsibilities between the U.S. and the host country on such matters as civil and criminal jurisdiction, the wearing of the uniform, the carrying of arms, tax and customs relief, entry and exit of personnel and property, and resolving damage claims. [Global Security, Status of Forces Agreements, id.; last visited on 11 August 2010.]
63 David Scheffer, Article 98(2) of the Rome Statute: Americas Original Intent, pp. 344-345; available at http://jicj.oxfordjournals.org/cgi/reprint/3/2/333; last visited on 6 August 2010.
64 The administration of former U.S. President George W. Bush.
65 David Scheffer, Article 98(2) of the Rome Statute: Americas Original Intent, supra note 63, pp. 344-345; citing Proposed Text of Article 98 Agreements with the United States, July 2002, available at http://www.iccnow.org/documents/otherissues/impunityart98/USArticle98Agreement/ Aug02.pdf; and L. Bloomfield,The U.S. Government and the International Criminal Court, Remarks to the Parliamentarians for Global Action, Consultative Assembly of Parliamentarians for the International criminal Court and the Rule of Law, New York, 12 September 2003, available at http://www.amicc.org/docs/ Bolton11_3_03.pdf.
66 Victoria K. Holt and Elisabeth W. Dallas, On Trial: The US Military and the International Criminal Court, The Henry L. Stimson Center, Report No. 55, supra note 11, citing the Stimson Workshop.
67 AMICC, Bilateral Immunity Agreements, supra note 61; last visited on 11 August 2010.
68 The determination would be done by the ICCs Chambers comprised of 18 judges. [Victoria K. Holt and Elisabeth W. Dallas, On Trial: The US Military and the International Criminal Court, The Henry L. Stimson Center, Report No. 55; supra note 11, pp. 54 and 22; see also note 14.]



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