Civil society, the Commission on Human Rights and the war (s) of - - PowerPoint PPT Presentation

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

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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?

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Human Rights & democracy Victims / reparation Peace/ Stability Development

Timeline

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ICC’s Attention

August 2016

• UN Special Rapporteurs (health & summary executions)
• CHR, Gascon: “ICC to possibly exercise jurisdiction”
• Roque: “state immunity is not an effective shield against the ICC”
• 105 deaths per week (Jul-Oct 2016)

2016/2017

• 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
• 61 deaths per week (Oct 2016-Feb 2017), 39 deaths (Feb-Dec 2017).

2018

• Feb 2018: ICC Prosecutor announces Preliminary Examination
• Mar: Philippines withdraws
• 23 deaths per week in 2018

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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 …..

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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

• ver 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… (d) The case is not of sufficient gravity…

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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’

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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’

• r IL immunities

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Enforcement

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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’

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

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NHRIs

• Paris Principles 1993
• GANHRI
• Effectiveness of NHRIs?

– Principles – Mandate – Activities (functional / general impact measures) – Local context & many perspectives

• Effectiveness for whom?

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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

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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

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NHRI and CSO Relationships

• Political context
• Leadership
• History and

change

• What is

‘effectiveness’?

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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

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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

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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, implementing agencies… etc.

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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?

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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?

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Questions

• What is the likelihood of Philippines courts prosecuting

killings in the war on drugs?

• How effective is the relationship between the Commission
• n 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