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PHILIPPINE military and police officials who have aggressively
assaulted militant activists and prominent opposition leaders in
covert operations comprising torture, enforced disappearances,
extralegal liquidations, forcible displacements of indigenous
peoples from their ancestral domain and similar human rights
violations should not think they are exempt from criminal liability.
They may believe that international criminal law, defining these
crimes against humanity and crimes of aggression, does not apply
within national territorial jurisdiction. They are mistaken. It is
not justice or law that follows political power or applies only
after such power has been wielded to destroy. They are not going to
be saved from criminal accountability by some legal principle when
they take orders from superior officials in the commission of crime
and in violation of basic human rights. Sequi debet potential
justitiam, non praecedere. Power ought to follow justice, not
precede it.
Generally accepted international laws find
sanction in our Constitution, deemed automatically incorporated into
national law, without further need of legislation. In fact, there
exist international norms of such universal acceptance and
recognition that they are, in themselves, deemed binding,
nonderogable, and inviolable insofar as the community of nations is
concerned. Jus cogens norms occupy the highest level in
international law hierarchy—no treaty is needed to enforce them;
their intrinsic validity are known to all peoples of the world
regardless of incorporation into international convention or
domestic legislation. Any civilized person is impelled to condemn
violations of jus cogens norms, such as those involving slavery,
apartheid, genocide and torture, not so much as a matter of law but
as a matter of human instinct. With customary and conventional norms
elevated into irrefragable and indubitable humanitarian law, these
international criminal laws find automatic applicability with equal
force within our jurisdiction. However, Senate ratification is still
commendable for our nation to obtain acceptability and international
standing, which it so glaringly lacks, as a civilized partner of the
United Nations in recognizing and upholding the human rights of our
people.
In Yamashita v. Styer (1945), the Supreme Court
proclaimed that Philippine judicial jurisdiction cannot be ousted on
the ground that the offense being tried is not cognizable under
domestic laws. Crimes against humanity committed by the Japanese
Imperial Command under General Yamashita, such as hurling Filipino
infants into the air to be caught by bayonets, were correctly held
to be triable by Philippine courts. This is consistent with the
doctrine that principles of international law (with regard to hostes
humani generis character of war crimes) can and should be given
effect regardless of jurisdictional boundaries because the offended
party is not a particular nationality alone but humankind as a whole
with regard to atrocities committed during armed conflict. Justice
Perfecto in his separate opinion so eloquently expressed:
“Impelled by irrepressible endeavors aimed towards the ideal, by
the unconquerable natural urge for improvement, by the unquenchable
thirstiness of perfection in all orders of life, humanity has been
struggling during the last two dozen centuries to develop an
international law which could answer more and more faithfully the
demands of right and justice as expressed in principles which,
weakly enunciated at first in the rudimentary juristic sense of
peoples of antiquity, by the inherent power of their universal
appeal to human conscience, at last were accepted, recognized, and
consecrated by all civilized nations of the world.”
In Kuroda v. Jalandoni (1949), another Japanese
Imperial Army officer again invoked in his defense the doctrine:
“nullum crimen nulla poena sine lege” (There is no crime where
there is no law that provides a penalty therefor). General Kuroda,
whose kempetai gang raped children and called them comfort women,
claimed the Philippines was not a signatory to the Hague Convention
on the Laws of War, which crimes defined thereunder are beyond the
ambit of Philippine penal laws. The Supreme Court repudiated
Kuroda’s defense, pronouncing there is no need for laws and
customs of war, as articulated in Hague Convention, to be embodied
in a treaty and acceded to by the Philippines. Hague Convention
principles on the prohibition of war methods and means calculated to
cause excessive and unnecessary suffering are products of centuries
of international consensus and recognition such that all states are
already bound by their admonitions regardless of the status of
ratification of the formal international instruments embodying them.
In Belgium, Netherlands, and other progressive
European countries, domestic courts are automatically converted into
international criminal tribunals whenever a charge of genocide and
humanitarian crimes, which are not even committed within their
territorial jurisdiction, is made against any political personality.
Even incumbent leaders are liable. They cannot claim presidential,
regalian, or sovereign immunity for such crimes that go against
humanity itself. The prosecution of human rights violations can
therefore not be treated as an exercise in futility in default of
domestic legislation addressing such. Even in the absence of
domestic laws, they can still be prosecuted if the norms that have
been violated in the offense are of such character as to be treated
as universally condemnable acts under the general principles of
international law. We are still awaiting compliance by our
government with these international human rights laws.
ericfmallonga@yahoo.com
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