H.E. Lauro L. Baja, Jr. - Philippine Undersecretary of Foreign Affairs

16 June 1998

PHILIPPINE STATEMENT ''TOWARDS AN EFFECTIVE INTERNATIONAL CRIMINAL COURT" BY H.E. LAURO L. BAJA, JR. UNDER-SECRETARY OF FOREIGN AFFAIRS

MR. PRESIDENT:

PLEASE ALLOW ME TO JOIN OTHERS IN CONGRATULATIONS TO YOU AND THE BUREAU FOR YOUR ELECTIONS; TO THE ILC, THE PREPCOM AND AD HOC MEETINGS, OTHER GOVERNMENTAL AND NON-GOVERNMENTAL ORGANIZATIONS FOR THEIR VALUABLE PREPARATORY CONTRIBUTIONS TO THIS CONFERENCE; AND IN GRATITUDE TO ITALY FOR HOSTING THIS CONFERENCE.

THE PHILIPPINES JOINS THE WORLD IN PURSUING THE DREAM OF AN INTERNATIONAL CRIMINAL COURT THAT SHALL BE AN EFFICIENT AND EFFECTIVE DISPENSER OF JUSTICE AND OF INTERNATIONAL CRIMINAL LAW. WE DO SO WITH FULL COGNIZANCE OF THE DIVERGENCE OF VIEWS AND POLITICAL CONSIDERATIONS THAT STATES PARTICIPANTS IN THIS HISTORIC DIPLOMATIC CONFERENCE MUST TAKE INTO ACCOUNT.

THE EFFICIENT AND EFFECTIVE DISPENSATION OF JUSTICE HAS LONG BEEN THE HOLY GRAIL OF MOST JUDICIAL SYSTEMS. ELUSIVE THOUGH IT BE, THIS GOAL CONTINUES TO BE DEEMED OF THE HIGHEST VALUE AND THEREFORE CONTINUES TO BE PURSUED. THE PHILIPPINES THUS WISHES TO SEE THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT AS THE MOST EFFECTIVE MEANS OF ACHIEVING THIS GOAL.

BUT, MR. PRESIDENT, WE DO NOT BELIEVE THAT THE ICC SHOULD BE ESTABLISHED ONLY FOR THE SAKE OF BEING ESTABLISHED. IF IT IS TO BE SET-UP ON A BASIS WHICH RENDERS IT INEFFECTIVE IN ADDRESSING THE PROBLEM OF IMPUNITY OF THE PERPETRATORS OF THE ATROCIOUS VIOLATIONS OF THE LAWS OF HUMANITY, THEN PERHAPS THE WORLD WOULD BE BETTER OFF WITHOUT IT. FOR SUCH A FLAWED INSTITUTION WILL NOT SERVE JUSTICE AND CONSEQUENTLY CANNOT HELP MAINTAIN INTERNATIONAL PEACE AND SECURITY.

ACCORDINGLY AND TO UPHOLD THE CURRENT EVOLUTION OF INTERNATIONAL LAW PARTICULARLY BUT NOT LIMITED TO HUMAN RIGHTS AND HUMANITARIAN LAW, THE PHILIPPINES CONSISTENT WITH ITS CONSTITUTIONAL AND LEGAL TRADITIONS, SUPPORTS THE FOLLOWING POSITIONS:

1. NATIONAL JUDICIAL SYSTEMS SHOULD HAVE PRIMACY IN TRYING CRIMES AND PUNISHING THE GUILTY. THE ICC SHOULD COMPLEMENT NATIONAL JUDICIAL SYSTEMS AND COME INTO PRIMACY ONLY WHEN NATIONAL INSTITUTIONS ARE NON- EXISTENT, CANNOT FUNCTION OR ARE OTHERWISE UNAVAILABLE.

2. THE *INTERNATIONAL CRIMINAL COURT SHOULD HAVE JURISDICTION OVER THE "CORE CRIMES" OF GENOCIDE, * WAR CRIMES, CRIMES AGAINST HUMANITY, AND AGGRESSION. BUT IN ADDITION, THERE MUST BE A PROVISION ALLOWING FOR THE FUTURE INCLUSION IN THIS JURISDICTION OF OTHER CRIMES THAT AFFECT THE VERY FABRIC OF THE INTERNATIONAL SYSTEM AND THE EXISTENCE OF HUMAN BEINGS.

3. THE PROSECUTOR SHOULD BE INDEPENDENT WHO, WHILE BALANCED BY THE SUPERVISORY PRE-TRIAL CHAMBER AS A SAFEGUARD AGAINST POLITICAL BIAS AND OVERZEALOUSNESS, CAN MOTU PROPRIO INVESTIGATE COMPLAINTS PERTAINING TO THE COMMISSION OF THE "CORE CRIMES" UNDER THE COURT'S JURISDICTION.

4. THE USE OF WEAPONS OF MASS DESTRUCTION, INCLUDING NUCLEAR WEAPONS, MUST BE CONSIDERED A WAR CRIME.

5. THE SPECIFICATION OF WAR CRIMES AND CRIMES AGAINST HUMANITY SHOULD INCLUDE SPECIAL CONSIDERATION FOR THE INTERESTS OF MINORS AND FOR GENDER SENSITIVITY.

A) THE STATUTE SHOULD PROVIDE FOR AN AGE BELOW WHICH THERE IS EXEMPTION FROM CRIMINAL RESPONSIBILITY, WE BELIEVE CHILDREN NINE YEARS AND BELOW SHOULD BE EXEMPT FROM CRIMINAL RESPONSIBILITY; THOSE BETWEEN THE AGES OF 9 AND 18 SHOULD BE ENTITLED TO A PRESUMPTION OF AN ABSENCE OF DISCERNMENT:
B) RECRUITMENT INTO ARMED FORCES SHOULD START FROM 18 YEARS; MINORS, OR THOSE BELOW 18 YEARS OF AGE, SHOULD NOT BE ALLOWED TO PARTICIPATE IN ARMED CONFLICT;
C) SEXUAL ABUSE OF WOMEN COMMITTED AS AN ACT OF WAR OR IN A WAY THAT CONSTITUTES A CRIME AGAINST HUMANITY SHOULD BE DEEMED PARTICULARLY REPREHENSIBLE,
D) THE CRIME OF RAPE SHOULD BE GENDER NEUTRAL AND CLASSIFIED AS A CRIME AGAINST PERSONS AND NOT JUST AGAINST CHASTITY;

6. A SCHEDULE OF PENALTIES SHOULD BE PRESCRIBED FOR EACH CORE CRIME DEFINED IN THE STATUTE, FOLLOWING THE PRINCIPLE THAT THERE IS NO CRIME IF THERE IS NO PENALTY. THIS WOULD ALSO MEET THE DUE PROCESS REQUIREMENT THAT AN ACCUSED INDIVIDUAL SHOULD BE FULLY APPRAISED OF THE ACCUSATION AGAINST HIM OR HER AS WELL AS OF THE PENALTY OR PENALTIES ATTACHING TO THE ALLEGED CRIME.

MR. PRESIDENT:

THE PHILIPPINES WELCOMES AND SUPPORTS THE POINTS MADE BY THE NON-ALIGNED MOVEMENT ON THE CREATION OF THE ICC ON THE OCCASION OF THE NAM MINISTERIAL MEETING A FEW WEEKS AGO IN CARTAGENA DE INDIAS.

FINALLY, WE ACCEPT THE REALITY THAT FOR THE ICC TO BE ESTABLISHED, WELL-GUARDED NOTIONS OF SOVEREIGNTY MAY HAVE TO BE ADJUSTED. THE ESTABLISHMENT OF THE ICC WOULD REQUIRE SOME RATHER FAR REACHING CHANGES IN OUR NATIONAL LAWS. WE ARE PREPARED TO MAKE THOSE CHANGES, REALIZING THAT WE ARE IN A DEFINING MOMENT IN THE ESTABLISHMENT OF AN EFFECTIVE CRIMINAL COURT.

THANK YOU.