Comment on House Bill No. 4998
“Philippine Statute on Crimes Against International Humanitarian Law
and Other Serious International Crimes”

Introduction

The Commission on Human Rights expresses its full support in the passage of the House Bill No. 4998 entitled “An Act Defining and Penalizing Crimes Against International Humanitarian Law and Other Serious International Crimes, Adopting Corresponding Principles of Criminal Responsibility, Operationalizing Universal Jurisdiction, Designating Special Courts, and for Other Related Purposes.” The instant bill is a long past due domestic law implementing the Geneva Conventions, their Additional Protocols and other instruments dealing with international humanitarian law.

The basic aim of the bill is to penalize the commission of the most serious international crimes. And revolutionarily, it gives Philippine Courts jurisdiction to try and prosecute the same. As aptly stated in the explanatory note, “This will enable the Philippines to prosecute the international crimes itself, strengthen its national criminal justice system, contribute to an effective international criminal justice regime, and generally bring its national law into conformity with international standards as well as up-to-date with important developments in international law.”

Armed conflict – internal and international – is the cruellest reality of the twentieth century. In spite of all the efforts that have been made to put peaceful negotiation on a permanent basis in the place of the resort to arms, the toll of human suffering, death and destruction, which wars inevitably bring, continues to grow.

The prevention of armed conflict is, and must remain, the first purpose of international cooperation. The second is to preserve humanity in the face of the reality of war. That is the intention of international humanitarian law.

In a little more than 100 years, an impressive body of international humanitarian law has been established. Its sources are to be found in the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Optional Protocol to the International Covenant on Civil and Political Rights and a wide range of conventional and non-conventional instruments drafted by the United Nations and some of its specialized agencies. These are today clear limits to the types of action that will be tolerated in armed conflict. However, treaties and conventions – even when solemnly ratified – cannot save lives, prevent ill-treatment, or protect the property of innocent people unless the will exists to apply these agreements in all conditions. Nor will they be effective unless everyone directly involved – combatants and civilians alike – realizes that the basic issue is one of respecting fundamental human rights.

Even after ratification of the Geneva Conventions and other relevant international instruments for more than 50 years already, the Philippines has yet to enact a domestic legislation reflecting compliance with treaty obligations and, more importantly, responding to the full realization and enforcement of international humanitarian law.

Thus, the instant bill, though long overdue, is a most welcome move to finally address the protection and promotion of human rights during armed conflicts.

IHL Technical Working Group

During the last technical working group meeting, the proposed IHL bill was discussed exhaustively. Several issues were raised, deliberated upon and resolved. However, some pressing issues were made subject to further comments from the different government agencies who took part in the said meeting.

One of the issues of concern which raised quite a number of arguments among the resource persons is Article 23 of the proposed bill on “Irrelevance of Official Capacity.” It was agreed that it would be best that separate position papers or comments on the matter be submitted by the concerned agencies. Hence, this discussion.

Article 23 – Irrelevance of Official Capacity

The provision of the IHL Bill under consideration reads as follows:

“1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Philippine Court from exercising its jurisdiction over such a person.”

Doctrine of Head of State Immunity and Related Concepts

Changing Perceptions of Sovereignty

The development of IHL, and of human rights law as well, reflects the new trend in international law towards limiting the sovereignty of States in the interest of mankind: respect for the basic human rights of all human beings. Sovereignty seemed to be conceived of in a new way, as a function of this interest, and should not be invoked as an obstacle to the realization of human rights.

The human rights issue has thus ceased to be a matter reserved exclusively to the internal jurisdiction of the States and has come, as is currently recognized, to be a matter which is governed both by internal law and by international law and in respect of which the exception of internal or reserved jurisdiction cannot be invoked.

International law, based upon the value of the individual but evolving in a world still governed by concepts of the sovereignty and the nation state, has traditionally assigned responsibility for international wrongdoing to the state. The mechanisms established under international law for recourse, such as the International Court of Justice and the UN Human Rights Committee, address grievances and assign responsibility on a state level. Holding individuals accountable for involvement in international wrongdoing is a modern idea which has legitimately taken root within recent decades.

Universal Jurisdiction

The concept of universal jurisdiction has evolved alongside the international human rights movement as part of a growing refusal to accept impunity for authors of gross violations of human rights. The principles which traditionally ascribe jurisdiction to a state are based upon an affiliation of the alleged perpetrator or the victim with the territory, the nationality, or the security of the state. The principle of universality, however, provides that there are certain crimes of such a horrifying nature that they pose an affront to all states, and as such all states have an interest in bringing their perpetrators to justice.

Today, a universal jurisdiction extends to the commission of war crimes, crimes against humanity, and the crime of genocide. Ideally, universal jurisdiction allows for national courts to be used as a venue to bring perpetrators of heinous international crimes to justice, in addition to ad hoc tribunals such as the International Criminal Tribunal of Yugoslavia (ICTY) and International Criminal Tribunal of Rwanda (ICTR) and/or an international tribunal such as the International Criminal Court (ICC) envisioned by the Rome Statute.

Immunity of Former Heads of State

The concept of immunity for diplomatic agents of a state is articulated in the 1961 Vienna Convention on Diplomatic Relations, which provides that a diplomatic agent shall enjoy immunity from criminal, civil, and administrative jurisdiction in a receiving State. The Convention distinguishes between procedural immunity, which is available to a diplomat for the duration of his time in office, and substantive immunity, which remains after the diplomat has left office. Unlike procedural immunity (immunity rationae personae) which is of a personal nature and includes all criminal and civil acts, substantive immunity (immunity rationae materiae) is applicable only with regard to acts of state (acts performed by the diplomat “in the exercise of his functions”). Head of State immunity, not explicitly delineated in the Vienna Convention, rests heavily on the customary concept of sovereign immunity, which originated at a time in European history when the sovereign and its ruler (usually a monarch) were deemed indivisible and the immunity granted to the Head of State was seen as an extension of the immunity granted to the state itself.

Substantive immunity for former Heads of State in the case of grave breaches of international law has effectively been reversed by evolving custom. This was acknowledged by the ICJ in its decision on Congo vs. Belgium, which noted that an individual ceases to be wholly protected by immunities after he has left office. Treaty law removing such immunity dates back to the Versailles Treaty and includes the Nuremberg Principles and the Genocide Convention. Both state practice and opinio juris indicate that the rejection of the norm in cases of international crimes has reached the level of custom. The case of former Head of State of Chile Pinochet Ugarte, decided on 24 March 1999, is the first case coming under the international justice system denying substantive immunity for a former Head of State who was charged before the Supreme Court of Chile with crimes against humanity.

Immunity for Sitting Heads of State

In its 14 February 2002 decision regarding the Case Concerning the Arrest Warrant of 11 April 2000, the ICJ presented its vision of the state of international law regarding the immunity from criminal process for incumbent Ministers of Foreign Affairs. The Court found that, “the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability.” The premise of this statement lies on the fact that the functions of the Office of the Minister of Foreign Affairs resembles that of a Head of State in that his responsibility for the conduct of his State’s relations with other States grants him recognition under international law as a representative of the State solely by virtue of his office.

The Court emphasized, however, that its finding was not a suggestion of impunity, in that “immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts.” In this regard, the Court delineated four situations in which immunities would not bar criminal prosecution for a Minister of Foreign Affairs:

1. The individual bears no criminal immunity under international law as implemented in his own country and is tried in his own country’s domestic court system.
2. The State which the Minister represents waives his immunity.
3. The individual ceases to hold the office of Minister of Foreign Affairs, in which case he may be tried by the court of another State in respect to acts committed before or after his time in office, or acts committed in a private capacity during his time in office.
4. the individual is tried before “certain international criminal courts” which possess jurisdiction.

Having presented these four exceptions to the rule, the Court claimed that its ruling did not grant impunity for sitting Ministers of Foreign Affairs. Following the logic of the Court, this system of thought would apply as well to immunities for sitting Heads of State.

The ICJ decision presents a four-pronged system of exceptions to absolute immunity, and states that this system sufficiently ensures that immunity does not equal impunity. However, it has been observed that each of the four examples has severe limitations.

Under scrutiny, the system of immunities proposed by the ICJ is a system which does provide impunity from international crimes. At least until the international community sees the realization of an International Criminal Court granting procedural immunity to sitting State representatives will produce a culture of impunity.

Arguments for Immunity Rationae Personae

Support for absolute procedural immunity for sitting Heads of State is rooted in traditional notions of diplomatic relations between states. State actors fears that derogation from the norm of immunity for sitting Heads of State will lead to an atmosphere of disarray in international relations and diplomacy. Although the direction of international law points toward recognition of the rights of victims of human rights abuses and accountability for their perpetrators even if this recognition threatens the norm of sovereignty, state actors fear the consequences of following this path.

The chivalrous notion of comity, a courtesy extended from one state to another in order to protect functioning relations, assumes the preservation of diplomatic immunities. Many fear that the abrogation of comity between states would lead to a world of chaotic inter-state relations in which domestic courts would be burdened with cases brought against Heads of State by former victims, human rights organizations, or anyone with a “cause.” The result, they claim, would be a sort of a “travel game” whereby Heads of State would have to research any country to which they plan to travel in order to ensure that they would not be served with an arrest warrant upon arrival. It is argued that the result of such games would be much more severe than mere inconvenience. A hypothetical case: the leader of a nation involved in a conflict is invited to use the good offices of a foreign state to conduct peace negotiations. What if this leader could not attend the peace negotiations because a warrant for his arrest had been circulated in the same nation that has offered its services? This hypothetical situation can be extended to cases of international summits or meetings between Heads of State. The importance of travel for representatives of the States was emphasized by the ICJ in the Congo decision.

Another fear is that of judicial reprisals to settle political vendettas. It is feared that the rejection of immunity might induce violence or armed warfare between states.

The fears and risks are real ones. The moral and legal weight behind individual accountability for international crimes regardless of official capacity, however, is of such substance that it mandates an evaluation of the trade-offs involved in accepting the risks of impunity in order to preserve comity.

Related International Jurisprudence

The Complaint against Ariel Sharon

The Belgian case against Sharon is part of an evolving pattern in the international community whereby the Westphalian notions of sovereignty have been increasingly displaced by the value placed upon the rights and responsibilities of the individual. The legal actions taken in Belgium are a part of a rising call for individual accountability that threatens traditional concepts of relations between states.

Democratic Republic of Congo vs. Belgium

As earlier discussed, in February 2002, the International Court of Justice rendered its decision on the Case Concerning the Arrest Warrant of 11 April 2000 finding the circulation by Belgium of an arrest warrant for the sitting Prime Minister of the Congo for war crimes and crimes against humanity illegal and a violation of the immunity of the incumbent Minister.

Many international legal scholars and human rights activists expressed surprise and disappointment at the ICJ’s finding especially on the struggle between the protection of immunities and the promotion of individual accountability.

In his dissenting judgement in the ICJ case of Arrest Warrant of 11 April 2000 (DRC/Belgium) (14 Feb 2000), Judge Al-Khasawneh stated:

“The effective combating of grave crimes has arguably assumed a jus cogens character reflecting recognition by the international community of the vital community interests and values it seeks to protect and enhance. Therefore when this hierarchically higher norm comes into conflict with the rules on immunity, it should prevail.”

Whilst in their Joint Separate Opinion Judges Higgins, Kooijmans and Buergenthal recognised that such recognition is having a significantly detrimental impact on arguments of immunity:

“This slow but steady shifting to a more extensive application of extraterritorial jurisdiction by States reflects the emergence of values which enjoy an ever-increasing recognition in international society. One such value is the importance of the punishment of perpetrators of international crimes…Now it is generally recognised that in the case of such crimes, which are committed by high officials who make use of power invested in the State, immunity is never substantive and thus cannot exculpate the offender from personal responsibility. [It has also given rise to a tendency, in the case of international crimes, to grant procedural immunity from jurisdiction only so long as the suspected State official is in office].. These trends reflect a balancing of interests. On the one scale, we find the interest of the community of mankind to prevent and stop impunity for perpetrators of grave crimes against its members; on the other there is the interest of the community of the State to allow them to act freely on the inter-State level without unwarranted interference…Moreover, a trend is discernible that, in a world which increasingly rejects impunity for the most repugnant of offences, the attribution of responsibility and accountability is becoming firmer, the possibility for the assertion of jurisdiction wider and the availability of immunity as a shield more limited…”’

Although the majority of the Court disagreed, holding that the former Foreign Minister of the Democratic Republic of Congo enjoyed absolute immunity for his alleged crimes, it is the dissenting opinions that are more in line with other recent decisions from international tribunals declaring torture to be an international crime and thereby breaching a peremptory norm of international law.

Tachiona vs. Mugabe

Sitting President Robert Gabriel Mugabe of Zimbabwe faced prosecution for crimes against humanity including extra-judicial killings and torture. On October 30, 2001, the Court, relying upon the determination of the Executive Branch, granted immunity to the defendant. This element of the determination by the Executive Branch of the status of immunity is particular to US law, and is illustrative of the overriding role played by politics in legal determinations of immunities, not only in the US but throughout the international community.

However, in the Mugabe decision, the Court, while recognizing immunity, had the occasion to state that “since 1967, however, some conceptual fissures have separated the ancient notion that equated the head-of-state to the state itself. There is now growing recognition that the sovereign is solely the state and that the nation’s ruler is a distinct entity.”

The Case of Mouammar Ghaddafi

Mouammar Ghaddafi, leader of the Socialist People’s Libyan Arab Republic, was charged with murder for complicity in a terrorist action. The case originated from the bombing of a French airliner in 1989 killing 156 passengers and 15 crew members, including French citizens.

On 13 March 2001 the French Cour de Cassation (Supreme Court) upheld Head of State immunity by declining jurisdiction on the case brought against Ghaddafi. The decision was based upon a plea of immunity; the court found that as a matter of international custom criminal jurisdiction does not extend to sitting Foreign Heads of State.

Attorney General of Israel vs. Eichmann

A curious exception, however, to the pattern of state practice upholding immunity rationae personae is the decision of the Supreme Court of Israel in this case in 1962.

Following the end of World War II, Adolf Eichmann was abducted from his exile in Argentina and brought to the newly-established state of Israel to face trial for crimes he had committed as an officer of the Third Reich at a time when the State of Israel had not yet been established. Eichmann’s official capacity as a middle ranking official of the Third Reich placed him at the head of the Department charged with the implementation of the “Final Solution.” In its final judgment finding Eichmann guilty as charged, the Israeli Court broadly rejected any type of immunity in cases of international crimes:

The principle of international law which, under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.

The Prosecutor of the Tribunal vs. Slobodan Milosevic

Slobodan Milosevic was President of Serbia and of Yugoslavia. He served as President of Serbia from 1989 to 1997 and then President of the Federal Republic of Yugoslavia (FRY) from 1997 to 2000. He also led Serbia's Socialist Party from its foundation in 1992 to 2001. He was one of the key figures in the Yugoslav wars during the 1990s and Kosova War in 1999.

He was charged before the ICTY with crimes against humanity and violations of laws or customs of war. The ICTY indictment of Slobodan Milosevic on 22 May 1999 marked the first time an international body stripped a sitting Head of State of immunity. Milosevic had been elected President of the FRY (Federal Republic of Yugoslavia) on 15 July 1997 and remained President at the time of the ICTY indictment.

Value of International Jurisprudence

The importance of custom is that it allows for a process of evolution of international law, independent of treaty law, in accordance with changing times and circumstances. The state of the law regarding immunity rationae personae for sitting Heads of State who have authored international crimes appeared, before Congo vs. Belgium, in a liminal phase of custom evolution. Although the practice of states consistently protected such immunity, opinio juris demonstrated a consistent rejection of it.

In 1994, Arthur Watts expressed the widely cited opinion that: “It can no longer be doubted that as a matter of general customary international law a Head of State will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes.”

However, the question remains unanswered: where precisely did international law stand on the question of immunity for sitting Heads of State?

Efforts of Codification

In May 1993 the Secretary General of the UN issued a report regarding the establishment of the International Criminal Tribunal for Yugoslavia (ICTY), including the following remark:

As the Secretary General noted, states’ sense of legal obligation to reject Head of State immunity is grounded largely in the history of the twentieth century atrocities. Following both world wars, the international community sought justice for those who had committed heinous crimes regardless of their official positions. While the Treaty of Versailles called to “publicly arraign William II of Hohenzollern (former emperor of Germany),” both Tribunals created at the conclusion of the Second World War (the Nuremburg Tribunal and the International Military Tribunal for the Far Eastfound the official position of an accused irrelevant to responsibility and punishment.

This sense of legal obligation regarding Head of State immunity has since been codified in the Statutes of the ICTY, the ICTR, and the Rome Statute. These three documents, particularly the Rome Statute, have been accepted by the community of states as written expressions of international custom.

The (Moral) Argument against Head of State Immunity

Granting immunity to sitting Heads of State sends the message that they will be granted leave by the international community to commit was crimes, crimes against humanity, and even genocide throughout their time in office. What atrocities might be avoided, what crimes prevented, if sitting Heads of State knew that they would be held accountable by the international community for their own actions?

Doctrine of Head of State Immunity, Philippine Practice

Under Philippine laws, the question of whether our Head of State, the President, enjoys immunity from suit is well-settled. Our laws and jurisprudence are consistent on the matter – the President enjoys immunity from suit during his tenure. Although the new Constitution has not reproduced the explicit guarantee of immunity under the previous Constitution, presidential immunity during tenure remains as part of the law. What has been rejected by the new Constitution is the expansive notion of immunity in the Marcos Constitution.

History of Executive Immunity

The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield, the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz: “x x x. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the State and for the office he occupies; a tendency to unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself.”

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated:

“The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution.”

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate Joaquin Bernas, viz:

“Mr. Suarez. Thank you.

The last question is with reference to the committee’s omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I thank the Commissioner for the clarification.”

This is in accord with the Supreme Court’s ruling in In re: Saturnino Bermudez that “incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure”but not beyond.

Current Status of the Doctrine

Today, the constitutional provision found in Section 3, Article XVI of the 1987 Constitution simply states that, “The State may not be sued without its consent.”

The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention.

However, like all rules, there are recognized exceptions laid down under our jurisprudence such as when the State gives its consent either expressly or impliedly and when the acts are not acts of the State. Moreover, it is clear that executive immunity extends only during tenure and only as to acts of State.

In the most recent case of Estrada vs. Desierto, the former President Joseph Estrada sought immunity from charges of plunder, bribery and graft and corruption claiming immunity from all kinds suits – whether civil and criminal.

The Supreme Court, however, ruled that,

“The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right.”

The Doctrine in Relation to Other States

There is a principle in International Law known as the Act of State Doctrine – “A State should not inquire into the legal validity of the public acts of another State done within the territory of the latter. In the case of Underhill vs. Hernandez, the US Court refused to inquire into the acts of Hernandez (a Venezuelan military commander whose government was later recognized by the US) in a damage suit brought in the US by Underhill, an American, who claimed that he had been unlawfully assaulted, coerced and detained by Hernandez in Venezuela.

This doctrine is more of a choice of law rule, and may be raised by private parties. However, in Banco Nacional de Cuba vs. Sabbatino, it was stated that “no court in the US should decline because the act of state doctrine seems to make a determination on the validity of the confiscation of property by a foreign State in violation of the principles of International Law.

Immunity from the exercise of local jurisdiction may be generally classified as absolute or relative. According to the classical or absolute theory of sovereign immunity, a foreign sovereign could not, without his consent, be made a defendant in the court of another sovereign. But according to a newer and restrictive theory of sovereign immunity, such exemption has been recognized only with respect to sovereign or public acts of state and not necessarily with respect to its so-called private acts.

In the landmark case of Republic of the Philippines vs. Ferdinand Marcos, victims of violations of human rights during the Marcos regime filed a class suit against the former dictator on April, 1986. In 1992, the District Court of Hawaii rendered a decision in favor of the Marcos victims finding that acts of torture, execution and disappearance were clearly acts outside the President’s authority and are not covered by the act of state doctrine. The US Supreme Court upheld the decision in 1997, making the class action suit of the 10,000 human rights victims a landmark case on the issue of human rights jurisprudence. This final decision rendered the class action suit as a legal precedent in the history of  international human rights jurisprudence which can be invoked by human rights victims the world over. 

Analysis and Conclusion

In light of the inadequacy of the immunities system presented in the ICJ decision, especially in the case of Congo vs. Belgium, the challenge facing international legal and human rights advocates as well as policy makers is to establish a mechanism whereby sitting Heads of State face responsibility for their actions without irreversibly disrupting functional relations between states.

Those who argue for the preservation of immunity rationae personae paint a picture of a world without immunity where there is unending litigation and the map is a board game with warrants of arrest flying freely. What these arguments ignore are the structural limitations inherent in universal jurisdiction: crimes which prescribe universal jurisdiction are limited to the most grievous violations of the law of nations. The Rome Statute and domestic implementing legislation currently in existence remove immunity only cases of such severe violations. The world envisioned by the Rome Statute is not one in which Heads of State are wanted globally for shoplifting – it is a world in which Heads of State cannot commit grave violations of individual’s human rights with impunity.

Although the fear that judicial proceedings will be used as political weapons throughout the world is a legitimate fear, the moment has arrived whereby it must be balanced against the need for individual accountability. A critical assessment of the international criminal system as it exists today indicates that the only way to protect against impunity for international criminals, whether Head of State or every day civilians, is to restrict immunities (procedural and substantive) in cases of genocide, crimes against humanity, and war crimes. This restriction is narrow enough to uphold justice without irrevocably damaging the nation-state system.

In order to create a world without impunity for international crimes, the international community must accept restrictions in immunity for incumbent Heads of State in cases of genocide, crimes against humanity, and war crimes. By restricting immunity in this manner, it will be possible to create a world without impunity for international crimes while keeping intact functional relations between states. Bringing individuals to justice, regardless of their official capacity, demonstrates an ultimate respect for international law that will do greater good for the international community of states than the temporary damage done to diplomatic relations.

The instant bill seeking full protection and promotion of human rights in cases of armed conflict may validly provide for an exception to the Doctrine of State Immunity enunciated in our jurisdiction. The applicability of the exception to the most serious and grievous international violations – genocide, crimes against humanity, war crimes and other serious international crimes, is sufficient classification that would provide the justification. This is more in keeping with the current trend not only in international jurisprudence but also in international law in general.

Done this 22nd day of June, 2006 at Quezon City.

COMMENT ON THE NATIONAL ID SYSTEM

Introduction

National Identification Systems

Identity (ID) cards are in use, in one form or another in numerous countries around the world. The type of card, its function, and its integrity vary enormously. Around a hundred countries have official, compulsory, national IDs that are used for a variety of purposes. Many developed countries, however, do not have such a card. Amongst these are the United States, Canada, New Zealand, Australia, Ireland, the Nordic countries and Sweden. Those that do have such a card include Germany, France, Belgium, Greece, Luxembourg, Portugal and Spain.

The use of sectoral (specific purpose) cards for health or social security is widespread, and most countries that do not have a national universal card, have a health or social security card (in Australia, the Medicare Card, in the United States, the Social Security number), or traditional paper documents of identity. The reverse is also true. In Sweden, while there exists a ubiquitous national number, there is no single official identity card.

Main Purposes of ID Cards

ID cards are established for a variety of reasons. Race, politics and religion were often at the heart of older ID systems. The threat of insurgents or political extremists, and the exercise of religious discrimination have been all too common as motivation for the establishment of ID systems which would force enemies of the State into registration, or make them vulnerable in the open without proper documents. In Pakistan, the cards are used to enforce a quota system. In China, they are used as a tool of social engineering.

In the United Kingdom, current proposals for a national ID card are fuelled by the need to develop a document which is acceptable to other European countries, as well as a belief that the scheme might help fight crime. In Australia, the purpose of the proposed card was to fight tax evasion, and, in New Zealand, to establish Social Welfare entitlement. The Dutch card has the dual purpose of helping to improve government administrative efficiency, while playing a key role in dismantling border controls.

At the heart of such plans is a parallel increase in police powers. Even in democratic nations, police retain the right to demand ID on pain of detention. A Privacy International survey of ID cards found claims of police abuse by way of the cards in virtually all countries. Most involved people being arbitrarily detained after failure to produce their card. Others involved beatings of juveniles or minorities. There were even instances of wholesale discrimination on the basis of data set out on the cards.

In recent years, ID cards have been linked to national registration systems, which in turn form the basis of government administration. In such systems - for example Spain, Portugal, Thailand and Singapore - the ID card becomes merely one visible component of a much larger system. With the advent of magnetic stripes and microprocessor technology, these cards can also become an interface for receipt of government services. Thus the cards become a fusion of a service technology, and a means of identification.

Moves for a National Identification (ID) System in the Philippines

Senate Bill No. 1685

The earliest attempt for the establishment of a national ID system in the country was through Senate Bill No. 1685 authored by then Senator Leticia Ramos-Shahani in the year 1991.

Political and public opposition met the said senate bill on several issues. Subsequently, the proposal collapsed due to the reason that implementation of a national ID system would entail a very high cost.

Administrative Order No. 308

On December 12, 1996, then President Fidel V. Ramos issued Administrative Order No. 308 entitled “Adoption of a National Computerized Identification Reference System.”

The said Administrative Order has been declared unconstitutional by a split decision of the Supreme Court in the case of Senator Blas Ople vs. Executive Secretary RubenTorres decided on July 23, 1998.

As mentioned, worthy of note is the fact that the declaration of unconstitutionality was a split decision of the High Tribunal with only three (3) of the justices concurring, six (6) dissenting while the remaining five (5) concurring only with the result but not with the reason. Of the five (5) justices concurring only with the result, only one has categorically stated that there was a violation of the right to privacy. In sum, of the fourteen (14) justices who ruled on the case, only four (4) justices clearly affirmed that there was a violation of the constitutional right to privacy.

Executive Order No. 420

Recently, the attempt to revive the institution of a National ID System was spearheaded by President Gloria Macapagal-Arroyo through the issuance on April 13, 2005 of Executive Order No. 420 entitled “Requiring All Government Agencies and Government-Owned and Controlled Corporations to Streamline and Harmonize Their Identification (ID) Systems, and Authorizing for Such Purpose the Director-General, National Economic and Development Authority to Implement the Same, and for Other Purposes.”

As expected, the issue of the constitutionality of the instant presidential issuance was again submitted to the courts by various sectors of the society largely depending on the earlier declaration of unconstitutionality of Administrative Order No. 308. Basically, the petition hinged on the issues of usurpation of legislative powers and the constitutional right to privacy.

This time, however, the constitutionality of EO 420 was upheld by the Supreme Court in its decision promulgated on April 19, 2006. The High Tribunal, however, made clear that EO 420 does not establish a national ID system but only seeks to consolidate, integrate and improve existing government ID systems.

At present, separate House Bills were filed seeking to institutionalize and translate into legislation the system national identification in the Philippines.

The Commission on Human Rights Supports the Call for a National ID System

The Commission on Human Rights of the Philippines supports the present efforts to establish a national identification system in the country notwithstanding the various versions of the bills currently lodged in Congress that contains contrasting provisions which may be irreconcilable at some major key points.

The Commission is concerned with the issue of human rights specifically on the individual’s right to privacy and such other rights as may be involved in the institutionalization of a national ID system in the country.

Observations

The Right to Privacy

Under Philippine Standards

The “right to be left alone” was expressed for the first time in an article of Justice Louis Brandeis and Samuel D. Warren in 1890 when they referred to the invasion of the “sacred precincts of private and domestic life.” Brandeis and Warren, expressed their abhorrence on reporters and photographers who invaded “the sacred precincts of private and domestic life.”

Unfortunately however, the so-called right to privacy is still a vague and an ambiguous concept under the Philippine setting/society.

One has only to sit through a televised talk show to be convinced that what passes for wholesome entertainment is actually an invasion into one’s private life, leaving the interviewee embarrassed and outraged by events.

With the overarching influence of common law and the recent advent of the Information Age with its high-tech devices, the right to privacy has expanded to embrace its public law aspect. The Bill of Rights of our evolving Charters, a direct transplant from that of the United States, contains in essence facets of the right to privacy which constitute limitations on the far-reaching powers of government.

Thus, under Section 3, paragraph 1 of the Bill of Rights of the 1987 Philippine Constitution it is provided that:

“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as may be provided by law.”

The right to privacy as stated in the Philippine Constitution refers only to the right to the privacy of communication and correspondence. Recent developments, however, have shown that the said right covers broader aspects of human activity of individual, to his family, home and reputation.

Generally, the right to privacy now involves most basic rights of the individual conduct and choice. The right to privacy includes the right of the person to prevent intrusion into certain thoughts and activities which includes the freedom of speech, to form or join association. It also includes the constitutional freedoms of unreasonable searches and seizures and the freedom from self-incrimination.

Under International Standards

Article 12 of the Universal Declaration of Human Rights (UDHR) provides a broader concept of the right to privacy, to wit:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”

Implementing said provision is Article 17 of the International Covenant on Civil and Political Rights (ICCPR) which reads:

“Section 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Section 2. Everyone has the right to the protection of the law against such interference or attacks.”

From the above quoted provisions of the UDHR and the ICCPR, the following may be inferred:

Firstly, under international instruments, the right to privacy covers a more comprehensive definition. More than the privacy of communication and correspondence found in our present Constitution, the UDHR provides for privacy of the individual, his family, home and correspondence.

Secondly, interference by competent authorities is recognized provided that the same is not unlawful nor arbitrary.

As clearly expounded by the United Nations High Commission on Human Rights in its General Comment No. 16, the term “unlawful” means that no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.

The expression “arbitrary interference” is also relevant to the protection of the right provided for in article 17. The introduction of the concept of arbitrariness in Article 17 of ICCPR is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.

Thirdly, the information required of the person must be relevant and limited to the purposes of the interference.

As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society as understood under the Covenant.

Fourthly, in cases where inferences may not be unlawful nor arbitrary, the same must still pass the test of reasonableness.

Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-by-case basis.

Lastly, the security of the data gathered from the citizens must be kept sancrosant.

Minimum Guarantees

Further, the Guidelines for the Regulation of Computerized Personal Data Files adopted by the United Nations (UN) General Assembly on December 14, 1990 provided for several principles concerning the minimum guarantees that should be provided in national legislations, to wit:

1. Principle of Lawfulness and Fairness. Information about persons should not be collected or processed in unfair or unlawful ways, nor should it be used for ends contrary to the purposes and principles of the Charter of the United Nations.

2. Principle of Accuracy. Persons responsible for the compilation of files or those responsible for keeping them have an obligation to conduct regular checks on the accuracy and relevance of the data recorded and to ensure that they are kept as complete as possible in order to avoid errors of omission and that they are kept up to date or when the information contained in a file is used, as long as they are being processed.

3. Principle of the Purpose-specification. The purpose which a file is to serve and its utilization should be specified, legitimate and, when it is established, receive a certain amount of publicity or be brought to the attention of the person concerned, in order to make it possible subsequently to ensure that:

• All the personal data collected and recorded remain relevant and adequate to the purposes so specified;
• None of the said personal data is used or disclosed, except with the consent of the person concerned, for purposes incompatible with those specified;
• The period for which the personal data are kept does not exceed that which would enable the achievement of the purposes so specified.

4. Principle of Interested-person Access. Everyone who offers proof of identity has the right to know whether information concerning him is being processed and to obtain it in an intelligible form, without undue delay or expense, and to have appropriate rectifications or erasures made in the case of unlawful, unnecessary or inaccurate entries and, when it is being communicated, to be informed of the addresses. Provision should be made for a remedy, xxx. It is desirable that the provisions of this principle should apply to everyone, irrespective of nationality or place of residence.

5. Principle of Non-Discrimination. Subject to cases of exceptions, restrictively envisaged under principle 6, data likely to give rise to unlawful or arbitrary discrimination, including information on racial or ethnic origin, colour, sex life, political opinions, religious, philosophical and other beliefs as well as membership of an association or trade union, should not be compelled.

6. Power to Make Exceptions. Departures from principles 1 to 4 may be authorized only if they are necessary to protect national security, public order, public health or morality, as well as, inter alia, the rights and freedoms of others, especially persons being persecuted (humanitarian clause) provided that such departures are expressly specified in a law or equivalent regulation promulgated in accordance with the integral legal system which expressly states their limits and sets forth appropriate safeguards.

Exceptions to principle 5 relating to the prohibition of discrimination, in addition to being subject to the same safeguards as those prescribed for exceptions to principles 1 to 4, may be authorized only within the limits prescribed by the International Bill of Human Rights and the other relevant instruments in the field of protection of human rights and the prevention of discrimination.

7. Principle of Security. Appropriate measures should be taken to protect the files against both natural dangers, such as accidental loss or destruction and human dangers, such as unauthorized access, fraudulent misuse of data or contamination by computer viruses.

8. Supervision and Sanctions. The law of every country shall designate the authority which, in accordance with its domestic legal system, is to be responsible for supervising observance of the principles set forth above. This authority shall offer guarantees of impartiality, independence vis-à-vis persons or agencies responsible for processing and establishing data, and technical competence. In the event of violation of the provisions of the national law implementing the aforementioned principles, criminal or other penalties should be envisaged together with the appropriate individual remedies.

Recommendations/Conclusion

The Commission on Human Rights earlier opposed the Administrative Order issued by then President Ramos calling for a National ID System basically for the reason that there were no clear safeguards set forth therein. Much was left to the unbridled discretion of the Inter-Agency Coordinating Committee (IACC) to promulgate the corresponding implementing guidelines. There is thus danger of the far-reaching consequences that can tell on all individuals, their liberty and privacy.

However, probably taking cue on the grounds for the unconstitutionality of AO No. 308, EO No. 420 laid down specific safeguards for the implementation of the same.

In addition, Section 3 of the said Executive Order made specific enumeration of the information or data required from the individual for the unified ID system. This sets the limits as to which kind of information is necessary to be provided by the individual which nevertheless are the basic and usual data being furnished when availing of government services. This is important because it provides for complementary protection against possible use or misuse of information.

As correctly observed by Justice Mendoza in his Dissenting Opinion:

“All that is contemplated is an identification system based on data which the government agencies involved have already been requiring individuals making use of their services to give.”

Justice Mendoza went on to enumerate several enactments already providing for the collection of basic data, to wit: CA No. 591 authorizing the National Statistics Office to collect information concerning population; RA No. 4136 giving the Land Transportation Office the power to require applicants for drivers license to give information regarding their full names, date of birth, height, weight, sex, color of eyes, blood type, address, and right thumbprint; and RA No. 8329 giving the Department of Foreign Affairs the power to require passport applicants to give information concerning their names, place of birth, date of birth, religious affiliation, marital status, and citizenship.

Moreover, techniques such as fingerprinting or electronic photography in banks have become commonplace. As has been observed, the increased capacity of applied sciences to utilize more and more kinds of data and the consequent calls for such data have weakened traditional resistance to disclosure. As the area of relevance, political or scientific, expands, there is strong psychological pressure to yield some ground of privacy.

But this is a fact of life to which we must adjust, as long as the intrusion into the domain of privacy is reasonable.

Indeed, the majority concedes that “the right to privacy does not bar all incursions into individual privacy. . . [only that such] incursions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions.” In case of the Identification Reference System, the purpose is to facilitate the transaction of business with service agencies of the government and to prevent fraud and misrepresentation. The personal identification of an individual can facilitate his treatment in any government hospital in case of emergency. On the other hand, the delivery of material assistance, such as free medicines, can be protected from fraud or misrepresentation as the absence of a data base makes it possible for unscrupulous individuals to obtain assistance from more than one government agency.

Further, Justice Kapunan in his Dissenting Opinion stated that, “The new identification system would tremendously improve and uplift public service in our country to the benefit of the Filipino citizens and resident aliens. It would promote, facilitate and speed up legitimate transactions with government offices as well as with private and business entities. Experience tells us of the constant delays and inconveniences the public has to suffer in availing of basic public services and social security benefits because of inefficient and not too reliable means of identification of the beneficiaries.”

The majority laments that as technology advances, the level of reasonably expected privacy decreases. That may be true. However, courts should tread daintily on the field of social and economic experimentation lest they impede or obstruct the march of technology to improve public services just on the basis of an unfounded fear that the experimentation violates one’s constitutionally protected rights.

Finally, Justice Vitug, in the same case, made the following pronouncements:

“The great strides and swift advances in technology render it inescapable that one day we will, at all events, have to face up with the reality of seeing extremely sophisticated methods of personal identification and any attempt to stop the inevitable may either be short-lived or even futile. The imperatives would be instead to now install specific safeguards and control measures that may be calculated best to ward-off probable ill effects of any such device.”

Thus, taking into consideration the material benefits of a national ID system, its assurance of compliance with international human rights standards and the safeguards found in other international human rights instruments as herein discussed, the Commission on Human Rights supports the endeavor to institutionalize a national ID system in the Philippines.

Done this 11th day of July 2006.