Adapting legal responses to violations in the Philippines: Civil society, the Commission on Human Rights and the war (s) of the roads ANU Philippines Project Dr Emma Palmer 24 September 2018
Images: ‘UN will investigate crimes against Rohingya in Myanmar’, Reuters, 24 March 2017; ‘Unprecedented case filed at International Criminal Court proposes land grabbing in Cambodia as a crime against humanity’, Huffington Post at Farmlandgrab.org , 7 October 2014; ‘Philippines drug war: Thousands seek end to violence at 17 - year- old’s funeral’, The Indian Express, 26 August 2017; Jude Sabio outside the ICC: Mike Corder: Associated Press.
Introduction • Adaptation of international criminal justice • Work in progress 1. International criminal law in the Philippines 2. The Commission on Human Rights & CSOs 3. Infrastructure projects and affected populations Griffith Law School
International Criminal Law 1. How is international criminal justice adapted in the Philippines? 2. Which actors are involved and how? 3. What laws and institutions for prosecuting? Human Victims / Peace/ Rights & Development reparation Stability democracy Griffith Law School
Timeline Griffith Law School
ICC’s Attention • UN Special Rapporteurs (health & summary executions) • CHR, Gascon: “ICC to possibly exercise jurisdiction” • Roque: “state immunity is not an effective shield against the ICC” August 2016 • 105 deaths per week (Jul-Oct 2016) • Oct 2016: ICC Prosecutor: “any person … liable to prosecution before the Court” • ICC Communications: Jude Sabio; S. Antonio Trillanes IV + C. Gary Alejano • Aug 2017: 17 year old Kian Lloyd delos Santos killed 2016/2017 • 61 deaths per week (Oct 2016-Feb 2017), 39 deaths (Feb-Dec 2017). • Feb 2018: ICC Prosecutor announces Preliminary Examination • Mar: Philippines withdraws 2018 • 23 deaths per week in 2018 Griffith Law School
Preliminary Examination • Proprio motu - next : – Jurisdiction ( reasonable basis to believe…) • State party: until March 2019, subject matter – Admissibility (Art 17) • Complementarity • Gravity – Interests of Justice (not to proceed) • Then Pre- Trial Chamber to authorise “investigation” > ….. Trial Chamber > Appeals Chamber > Reparations ….. Griffith Law School
Complementarity Article 17 - Issues of admissibility 1. … the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution ; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct… Griffith Law School (d) The case is not of sufficient gravity…
Republic Act 9851 “IHL Act” Definitions • IHL Act ‘shall not … give an implied recognition of the status of belligerency’ • arbitrary deportation or forcible transfer of population and grave breach of ‘ unlawful deportation’ to ‘ arbitrary deportation’ • Forced pregnancy: ‘definition shall not in any way be interpreted as affecting national laws relating to pregnancy’ Griffith Law School
Republic Act 9851 “IHL Act” • War crimes: combines international/non-international – ‘Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces’ • Genocide: ‘ social ’ groups and ‘any other similar and permanent group’ • Crimes against humanity includes persecution on the ground of ‘ sexual orientation or other grounds…’ • Irrelevance of official capacity ‘ other than the established constitutional immunity … of the Philippine President during tenure’ or IL immunities Griffith Law School
Enforcement Images: Inquirer.Net 2017, ‘ Palparan must face the music, court rules’; Mark Demayo 2013, ‘UP Students missing 7 years’; Bam Alegre 2014, ‘ Masalay-Ampatuan-Maguindanao Massacre Actual Site Mangudadatu ’ Griffith Law School
PCICC - mandamus • Pangilinan et al v Cayetano et al GR No. 238875 and GR No. 239483 • Could Duterte withdraw from the Rome Statute? • What is the impact of RA 9851 being broader than the Rome Statute? • Pimentel, Bayan Muna Griffith Law School
NHRIs • Paris Principles 1993 • GANHRI • Effectiveness of NHRIs? – Principles – Mandate – Activities (functional / general impact measures) – Local context & many perspectives • Effectiveness for whom? Griffith Law School
NHRIs and CSOs • Principles • Mandate • Activities / general impact measures: – Kandy Programme of Action: Cooperation Between National Institutions and Non- Governmental Organisations • Local context & many perspectives Griffith Law School
Kandy Programme of Action • Mechanisms for Cooperation and Education • Complaints, Investigations and Public Inquiries • Treaties and Relations with Legislatures • Establishment of National Institutions • Regional and International Activity Griffith Law School
NHRI and CSO Relationships • Political context • Leadership • History and change • What is ‘effectiveness’? Griffith Law School
Effective NHRI and CSO Relationships the extent to which NHRIs and CSOs collaborate in ways that positively • contribute to promotion and protection of human rights • across the range of NHRI activities • in particular contexts • as assessed by members of NHRIs, CSOs • AND communities they claim to represent, so CSO membership • over time Griffith Law School
Infrastructure • public-private-partnership – ‘a long -term contract between a private party and a government entity, for providing a public asset or service, in which the private party bears significant risk and management responsibility, and remuneration is linked to performance’ (World Bank 2017) • infrastructure projects – impact on “affected” populations – displacement and resettlement issues Griffith Law School
Infrastructure PPPs in Philippines • $64 billion approved infrastructure spending • Aim: 5% of GDP with PPPs playing a ‘key role’, $180b 10yrs • Build, Build, Build • International importance (BRI etc) • PPP Centre functions include: 1. advisory services, technical assistance, trainings and capacity development to agencies/LGUs in PPP project preparation and development; 2. Recommend plans, policies and implementation guidelines related to PPP[s] in consultation with appropriate oversight committees, Griffith Law School implementing agencies … etc.
Infrastructure PPPs in Philippines • The Philippines has one of the most comprehensive PPP regulatory frameworks in the Asia-Pacific region – how might it protect the human rights of those affected by such large projects? Griffith Law School
Summary • Influence of actors in the Philippines (and beyond) • Adaptation of international norms • Focus on strengthening domestic institutions • Ongoing process – historic context • Application beyond international criminal law? Griffith Law School
Questions • What is the likelihood of Philippines courts prosecuting killings in the war on drugs? • How effective is the relationship between the Commission on Human Rights and CSOs? • What kinds of impacts might infrastructure PPP projects have upon different groups/populations in the Philippines? Thank you! Emma.Palmer@griffith.edu.au
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