The Two Faces of the Terrorist: The State and Non-State Actors

“The Court will deal with the most serious crimes committed by individuals: genocide, crimes against humanity, war crimes and aggression. These crimes are specified in the Statute and are carefully defined to avoid ambiguity and vagueness. Crimes of aggression will also be dealt with by the Court when State Parties have agreed on the definition, elements, and conditions under which the Court will exercise jurisdiction.

a. Genocide is any one of a number of acts aimed at the destruction of all or part of certain groups of people. It is this intent that distinguishes genocide from other crimes against humanity.

Under Article 6 of the Statute, the following five prohibited acts-if committed with the intention to destroy “in whole or part” a national, ethnical, racial or religious group, as such, may constitute genocide:

· killing members of the group;

· causing serious bodily harm or mental harm to the members of a group;

· deliberately inflicting on a group conditions of life calculated to bring about their physical destruction in whole or in part;

· imposing measures intended to prevent births within a group;(and)

· forcibly transferring children of a group to another group.

Under Article 25 (3) (b) of the Statute, anyone who orders, solicits, or induces someone who committed the acts of genocide, is also guilty of genocide.

Anyone can be tried for genocide, no matter what the person’s position. This means that not only those who pulled the trigger whether foot soldiers or next door neighbors can be guilty of the crime but also the head of state or government minister who planned or ordered the act. The ICC jurisdiction does not allow for immunity afforded to heads of state. Following illegal orders of superiors is not a defense to genocide.

b. Crimes against humanity were first codified in an international instrument in the Charter of the Nuremberg Trial in 1945 and were recognized as part of international law. They have now been clearly defined in an international treaty under the Rome Statute and is distinguished from ordinary crimes in 3 ways:

First, the acts constituting said crimes such as murder, must have been “committed as part of a widespread or systematic attack”;

Second, they must be knowingly directed against a civilian population;

Third, they must have been committed pursuant to a “State or organizational policy”. Thus they can be committed by state agents or by persons acting at their instigation or with their acquiescence, such as vigilantes or para-military units. Crimes against humanity can also be committed pursuant to policies of organizations, such as rebel groups, which have no connection with the government.

The Rome Statute covers 11 types of acts, which may amount to crimes against humanity:

1. Murder;

2. Extermination which includes depriving people access to food or medicine, calculated to bring about their destruction;

3. Enslavement, or the exercise of power of ownership over a person, including trafficking of persons;

4. Forcible transfer of population, or deportation or forcing people to leave an area in which they are lawfully present, without grounds permitted under international law;

5. Imprisonment or severe deprivation of physical liberty in violation of international law;

6. Torture, defined as intentionally causing severe physical or mental suffering to a person in custody or under the control of the accused;

7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity;

8. Persecution against any identifiable group or collectivity on political, racial, national ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law or in connection with any crime under the Statute;

9. Enforced disappearance-the arrest, detention or abduction of persons, by or with the authorization, consent or acquiescence of a state or a political organization, followed by either:

· a refusal to acknowledge the deprivation of freedom

· or a refusal to give information on the fate of the disappeared persons with the intention of removing them from the protection of the law for a prolonged period of time;

10. Apartheid-inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over the other racial group committed with the intention of maintaining that regime; and

11.Other inhumane acts of similar character intentionally causing great suffering or serious injury to body or mental or physical health.

These crimes can be committed either in time of peace or armed conflict. There is no requirement that crimes against humanity take place during armed conflict.

c. War crimes have been punishable by national courts since the Middle Ages. There have been numerous international humanitarian treaties developed in 1900s notably the Hague Convention IV of 1907, and its Regulations, the four Geneva Convention of 1949 and their 1977 Protocols.

Article 8 of the Rome Statute gives the ICC jurisdiction over a wide range of war crimes committed during international armed conflicts which are recognized in these treaties and international customary law. It also reaffirmed recent developments in international law by giving the ICC the power to try war crimes committed in internal armed conflicts, such as civil wars, which are the most common conflicts today. Unlike crimes against humanity, a war crime can be single, isolated, dispersed or random act, without any requirement that it be widespread or systematic.

These war crimes can fall into two major categories.

First, the ICC can try person accused of grave breaches of the four Geneva Conventions of 1949 including the following willful acts when committed against protected persons such as wounded soldiers, shipwrecked sailors, prisoners of war, civilians in occupied territories:

· willful killing;

· torture or inhuman treatment including biological experiment;

· willfully causing great suffering or serious injury to body and health;

· wanton destruction and appropriation of property not justified by military necessity;

· compelling prisoners of war or other protected persons to serve in the forces of a hostile power;

· willfully depriving a protected person of the rights of fair trial;

· unlawful deportation and confinement;(and)

· taking of hostages.

Second, the Court has jurisdiction over serious violations of laws or customs applicable in international conflict within established framework of international law, including violations recognized in the Hague Regulations and Protocol I of the Geneva Conventions and International customary law, including, among others:

· prohibited attacks on civilians such as civilian objects, humanitarian assistance or peace keeping missions;

· attacks when it is known that it will cause incidental loss of life or injury to civilians or damage civilian objects or severe damage to the environment, which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

· attacks on buildings, materials, medical units and transport personnel using Red Cross or Red Crescent emblems;

· against buildings, dedicated to religion, education, art, science, or charitable purposes; historic monuments and hospitals, provided they are not military objectives;

· harm to defenseless persons such as killing or wounding soldiers who have surrendered, physical ,mutilation or medical or scientific experiments which are neither medically justified or in the interest of the persons, and which seriously endangers their health;

· outrages upon personal dignity, humiliating and degrading treatment;

· rape and other forms of sexual violence and the use of human shields;

· Prohibited methods of warfare, such as misuse of a flag of truce, UN or enemy insignia, emblems of the Red Cross or Red Crescent;

· Declaring that no quarters will be given, pillaging, seizing or destroying enemy property unless justified by military necessity;

· Use of prohibited weapons such as poison, certain gases, expanding bullets, and other weapons added to the Statute by amendment;

· Intentionally using starvation of civilians as a method of warfare;

· Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them actively in hostilities; and

· Certain prohibited acts in occupied territory including the transfer by the occupier of parts of its own civilian population into the territory; or the deportation or transfer of all or parts of the population of the occupied territory; or abolishing or suspending legal rights of enemy nationals.

Internal Conflict

In case of an armed conflict not of an international character, the Court has jurisdiction over serious violation of Article 3 common to the four Geneva Conventions namely the following acts committed against persons “taking no active part in the hostilities”:

· violence to life and person (like) murder, mutilation, cruel treatment and torture;

· committing outrages upon personal dignity, in particular humiliating and degrading treatment;

· taking of hostages;

· passing sentence and carrying out executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees generally recognized as indispensable.

It can also try other serious violations of humanitarian law recognized in Protocol II of the Geneva Conventions, including:

1. Intentionally directing attacks against civilian population as such, or against individual civilians not taking direct part in hostilities;

2. Intentionally directing attacks against buildings, material, medical units, and transport and personnel using the distinctive emblems of the Geneva Conventions (such as the Red Cross or the Red Crescent);

3. Intentionally directing attacks against personnel or vehicles, involved in humanitarian assistance and UN peacekeeping missions;

4. Intentionally directing attacks against a building dedicated to religion, education, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not military objectives;

5. Pillaging a town or place, even when taken by assault;

6. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence;

7. Conscripting or enlisting children of under the age of 15 into the armed forces or groups or using them to participate actively in hostilities;

8. Ordering the displacement of civilian population for reasons related to the conflict not justified by their security or imperative military reasons;

9. Killing or wounding treacherously a combatant adversary;

10. Declaring that no quarters will be given;

11. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned, and which cause death to or seriously endanger the health of such person;(and)

12. Destroying or seizing the property of the adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.

d. The Crime of Aggression What constitute the crime of aggression will still be discussed by signatories to the ICC. In international law, the concept of aggression has been slowly taking shape particularly in cases involving military actions involving the US, Nicaragua, Costa Rica and El Salvador.

Some countries such as the United States, voted against the inclusion of the crime of Aggression in the Statute, fearful that it would expose military commanders who conduct military operations in other countries. The trial and punishment of violators of the crime of aggression can only be enforced once state signatories agree on its definition and elements.” (13)

Extent of the Court’s Jurisdiction

The ICC has jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute. It has no retroactive effect. Crimes committed under the Marcos and Suharto regimes can no longer be punished under the Statute. In cases where the crime or complaint was referred by a State or initiated by the Prosecutor, the ICC may exercise its jurisdiction if one or more of the following states are Parties to the Statute or have accepted ICC’s jurisdiction:

a. The State on the territory which the alleged crime occurred;

b. The state of which the person accused of the crime is a national.

Those States which did not sign or ratify the Statute, although not under the court’s jurisdiction, may accept the jurisdiction of the ICC and cooperate in the implementation of the Statute. (14)

Obligations of State-Parties

State-parties under the Rome Statute have two basic obligations, namely: complementarity and full cooperation. States under the Statute have the primary responsibility of bringing parties or individuals responsible for genocide, crimes against humanity and war crimes to justice. It is therefore the “duty of every state to exercise criminal jurisdiction over those responsible for international crimes” under the Statute. Being part of international law, such prohibited and punishable acts form part of the law of the land under the Philippine Constitution. Thus, they can be equally be prosecuted before the national courts. Article 1 of the Rome Statute provides that the court “shall be complementary to national criminal jurisdictions”. It means that the ICC will be able to act only when states with responsibility over an accused who is either resident or national, are unable or unwilling to prosecute the above mentioned crimes.

Under this principle States are expected to enact and then enforce national legislation which provides that crimes under international laws are also crimes under national law whenever they have been committed, no matter who committed them or who is the victim. It is therefore only when states are unable or unwilling to prosecute offenders will the Court be able to have jurisdiction over an accused.

State parties under Art. 86 agree to “cooperate fully with the Court in the investigation and prosecution of crimes within the jurisdiction of the Court.” They should ensure that the ICC Prosecutor and the defense can conduct effective investigation in their jurisdiction, that their courts and other authorities provide full cooperation in obtaining documents, locating and seizing assets of the accused, conducting searches and seizures of evidence, locating and protecting witnesses and arresting and surrendering persons accused of crimes in the Court. The State shall also cooperate with the Court in enforcing sentences by making detention facilities available to convicted person. (15)

How Cases are Initiated before the Court

Taking into consideration the principles of complementarity, there are three (3) ways that an ICC investigation may be initiated:

“First, a State-Party may refer a ‘situation’ to the Prosecutor, where it appears that one or more crimes within the jurisdiction of the Court was committed (Art.13.a and Art.14).

Second, the Security Council may refer a ‘situation’ to the Prosecutor (Art.13.b).

Third, the Prosecutor may initiate investigation moto propio or on her own, on the basis of information from any reliable source as to the commission of crimes (Art.13.c and Art.15). This is where individuals or NGO’s may file a ‘complaint’ with the Prosecutor who in turn may conduct an investigation.”

Under any of the above procedure, the Prosecutor may then apply for a warrant of arrest with the Court’s Pre-Trial Chamber for the arrest and surrender of the suspect and if approved, a warrant of arrest shall be issued. The Court also recognizes and incorporates all the fundamental guarantees of the right to fair trial recognized in international law such as right against self-incrimination, right to counsel, against coercion and duress and double jeopardy. The imposition of death penalty is not sanctioned under the Rome Statute. (16)

International Criminal Court and U.S. National Security

As signatory to the treaty (Rome Statute), the U.S. is bound not to work against the purposes and objectives of the Treaty. This was noted by Secretary of State Powell in his confirmation testimony. Some of the critical point of concerns in U.S. policy-making on the International Criminal Court (ICC) are as follows:

I. The ICC is “significantly flawed” and the U.S. should seek a full exemption from the ICC jurisdiction.

It has been noted that the only outstanding “flaw” in the treaty cited during the Clinton Administration was the Court’s jurisdiction over individuals from countries that have not ratified the Treaty. The fact is that U.S. citizens and soldiers who commit crimes abroad are currently subject to the jurisdiction of the territorial state in which the crime is committed. On the other hand, the ICC will have jurisdiction over the personnel of non-Party States only when these individuals commit crimes under the jurisdiction of the ICC in the territory of a State Party, or in the territory of a state that has chosen to accept the jurisdiction of the ICC. Until the U.S. ratifies the Treaty, the Court can only try Americans if they commit crimes in countries that have accepted the Court’s jurisdiction.

A non-partisan American Academy of Arts and Sciences report states that “(M)ost ICC signatories reportedly see little reason to create such an exemption, which appears designed to reward non-signatories and undermine the concept that all individuals are subject to the relevant international law. It appears highly unlikely that such a “fix” will be attained….”

This U.S. efforts for exemption are alienating their closest friends and allies, for whom the creation of a fair and effective ICC is a high foreign policy priority. In the Preparatory Commission (PreCom) meeting last November 2000, the German Delegation Head announced the German ratification of the treaty with a unanimous vote in the Bundestag. The German Government was warned and advised not to admit any changes of or exemptions from the Rome Statute. He further said that on the German side, they are confident that together with the members of the European Union, and all the 110 Signatory States, will not fail to fully safeguard the integrity of the Rome Statute.

Although the U.S. efforts at exemption will not succeed, it is imperative that a U.S. negotiator at the table will be present. There are important decisions to be made on financial regulations and rules, privileges and immunities, and other aspects relative to the court in the next PreCon sessions. Thus, it is in the interests of U.S. national security to continue positively engaged in the process of creating the Court.

II. Another concern is that U.S. military and civilian personnel and officials may be subject to frivolous or politically motivated charges by the Court. Considering that there are hundreds of thousands of soldiers deployed around the world, the U.S. would be the subject to be unjustly targeted.

A suggested option is that the ICC must defer to national courts under the principle of complementarity. It may not proceed with any case that is genuinely being already investigated or prosecuted by a state which has jurisdiction, or has already been investigated by a state which has jurisdiction over it and that the state has decided not to prosecute the person concerned, or the person has already been tried for the same offense. Significantly, U.S. civilian and military negotiators subsequent to the conclusion of the Rome Treaty, worked hard to develop procedures that limit the likelihood of politicized prosecutions through greater precision in the definitions of crimes within the Court’s jurisdiction, among other protections. The efforts of the U.S delegations on substantive and technical issues has enormously strengthened the Rome Statute.

Another plus factor in the Statute is that any crime committed by an American would have to constitute a core crime under the ICC and would be subject to threshold for investigation and prosecution. All three crimes of genocide, crimes against humanity and war crimes, require some sort of plan, policy or strategy to commit the crimes, and the crimes must be committed as part of pattern of such crimes. Thus, the thresholds are so high that the U.S. and its official personnel could never, under U.S. law, plan and engage in such extraordinary severe, serious and systematic crimes. Besides, the Court will not acquire jurisdiction over individual crimes such as rapes, looting, or bar brawls, unless it could be shown that they were the result of an official U.S. policy. It is also submitted that atrocities committed by rogue units, like the My Lai Massacre in Vietnam, would not fall within the Court’s jurisdiction.

On top of this, crimes falling under the Court’s jurisdictions has already been declared illegal for U.S. soldiers to commit under the Uniform Code of Military Justice and the War Crimes Act (1996), according to Judge Robinson O. Everett of the U.S. Court of Military Appeals. These laws have already created jurisdiction over war crimes on the part of U.S. courts-martial. Thus, under the principle of complementarity, the U.S. has basis for maintaining that U.S. service personnel accused of crimes prohibited by the Statute should be tried by the U.S. courts-martial and not by the ICC.

III. A third concern is the view that the ICC seems unconstitutional because it does not provide for a jury trial.

The U.S. Department of Justice have ruled that there are no constitutional barriers to joining the ICC. It is submitted that the ICC’s procedural protections constitute full U.S. Bill of Rights protections for accused persons, except for jury trials. But the right to jury trials in the Bill of Rights applies only to cases tried in the U.S. Active duty members of the armed forces are not guaranteed jury trials under the U.S. Constitution. Americans, it has been observed, have been extradited for trial abroad for hundreds of years, even to system without American-style justice system.

IV. The fourth concern is that the existence of the ICC might dampen U.S. military participation in peacekeeping and humanitarian missions.

There is no need for the U.S. to change its strategy because its strategy already conforms to international and domestic law in field operations. The Statute provides that the ICC must defer to agreements between states, such as U.S. Status of Forces Agreements, before proceeding with a request for surrender (Art. 98). The U.S. usually requires a SOFA or similar agreement before engaging in peacekeeping or humanitarian missions. (17)

The Philippine Position and the Global War Against Terrorism

The Philippine government has not yet ratified the Rome Statute establishing the International Criminal Court, for whatever reason it is still unknown to date. In a press statement by Representative Loretta Ann P. Rosales of Party-List AKBAYAN on May 8, 2002 before the Philippine Coalition on the International Criminal Court, she stated that:

“The reported “un-signing” by the United States of the Rome Statute is outrageously short-sighted and the height of arrogance and hypocrisy. Bush administration officials are saying that it was a mistake for the Clinton administration to have signed the treaty establishing the International Criminal Court and that the signature is no longer legally binding. Neither will they recognize the court’s jurisdiction, nor submit to any of its orders or cooperate with it. The Rome Statute is now in force and effect after having reached the required 60 ratifications last month. The International Criminal Court, which is being set up in The Hague in the Netherlands, will have jurisdiction over crimes committed after July 1 of this year (2002) and will begin operations next year (2003). The U.S. has even gone further to say that it will not be bound by the Vienna Convention on the Law of Treaties, a 1969 multilateral treaty which establishes the rules on the observance of international agreements between states to which the U.S. is also a party. Under it, states are obliged to refrain from taking steps to undermine treaties they sign, even if they do not ratify them.

“The U.S. renunciation of the Rome State is ominous, in the light of the so-called global war against terrorism’ which the U.S. leads and which has extended to our shores with the Balikatan war exercises. The U.S. is waging this global war ostensibly in the name of high moral values and internationally accepted norms of conduct and behavior in the wake of the 11th September 2001 terror attacks in New York and Washington, D.C., and yet it refuses to be bound by the same standards. Reports from the U.S.-led war in Afghanistan against the Taliban and the Al Qaeda network of Osama bin Laden reveal that atrocities have been committed by U.S. troops there. The possibility of it happening here in the jungles of Basilan, the mountains of Central Mindanao and the plains of Central Luzon is not remote.

“This also shows an alarming trend towards unilateralism on the part of the U.S. It seems so easy for it to reject its obligations under multilateral treaties when it does not suit its purpose. Recently, it rejected the Kyoto Protocol and its obligations under the International Convention on Climate Change. In the past, it rejected the ruling of the International Court of Justice that held it liable for mining the harbors of Nicaragua during the Reagan-sponsored Contra war against the Sandinista regime then.

“We hope that the Philippine government would show better sense and largeness of mind than Uncle Sam in this regard, although its inaction on the matter of ratification of the Rome Stature has been pathetic so far. It has been one-and-a half years since former President Joseph Estrada signed the Rome Stature on 28th of December 2000, but the executive department has so far failed to formally endorse the treaty to the Senate for ratification. We hope that government inaction is not a case of a ‘follow-the-leader mentality on the part of the Philippines.” (18)

Dr. Aurora A Parong, Executive Director of the Task Force Detainees of the Philippines (TFDP), concurrent Deputy Chairperson of the Philippine Coalition for the International Criminal Court (PC-ICC), similarly issued a statement on May 8, 2002, expressing disappointment in the U.S. rejection of the International Criminal Court and calls it as a step backward for international criminal justice. A portion of her statement is quoted as follow:” (19)

“We find no justification to the recent unsigning of the US agreement of the Rome Statute for the International Criminal Court. This is a rejection of the world tribunal which can help deliver justice to victims of heinous crimes such those of the dictator Marcos, when government and domestic judicial system is unable and unwilling to prosecute perpetrators of genocide, crimes against humanity, war crimes and crimes of aggression. This is a regressive action for international criminal justice.

We have reasons to be concerned about the US move. The unsigning has several problematic implications to the Philippines.

· President Arroyo might do a Bush. President Arroyo might follow the action of President Bush of ‘unsigning’. If President Arroyo, who has supported US policy in the past, unsigns or not endorse the Rome Statute for ratification, the citizens of the Philippines will be deprived of another venue to seek justice for grave crimes.

In the US, the Rome Statute for the international court was signed by the previous president, President Clinton. Similar to the US, the Rome Statute was signed by a previous president, President Estrada. The Philippine signature was done in December 28, 2000. It is 17 months since the signature and yet, the President (in behalf of the Executive branch of government) has not endorsed the world court’s documents to the Senate for ratification. Thus, despite the fact that Senator Loren Legarda Leviste has filed a resolution for ratification, this cannot be acted upon due to the absence of the documents.

· In case there is commission by any American soldier or official of any of the crimes covered by the court and they are not prosecuted domestically or by the US, then there is no other venue for redress of the victims and their families. This has serious implications considering that there are many American soldiers and officials outside the US. In the Philippines, there are about thousands coming in and out related to the Balikatan exercises.

· In case of a crime of aggression-where another country attacks the Philippines-our country will have no venue for redress. So far, this is the only court which will have jurisdiction over the crime of aggression. For a country like the Philippines, which has been a victim of aggressive attacks and colonization by other countries and where hundreds of thousands of our people were killed because of such, the International Criminal Court is a hope for justice for the future. If we recall about 200,000 were killed among our people during the Fil-American war.

The failure of governments to prosecute dictators and perpetrators of heinous crimes doubly victimize our already impoverished bodies and souls. We view the International Criminal Court as one hope for justice when we cannot have justice in our country. We are keeping our finger crossed that President Arroyo will not do a Bush unsigning.’”

As finally pointed out by Representative Rosales, “(I)t is not yet too late for the Philippine government to get on board the process of setting up the ICC. It should expedite the process of ratification before the first meeting of the Assembly of State Parties takes place in a couple of months. The Arroyo administration should demonstrate to the country and the world that her government is on the side of victims of human rights violations and not that of transgressors, dictators and war criminals, and that it is on the side of justice and not of impunity. It should also show that, unlike the U.S., understands and upholds the time-honored principle in international law of pacta sunt servanda-agreements should be honored and observed. Simply put in Pilipino: “Kapag pinirmahan mo, pangatawanan mo!” (20)

State and Non-State Actors in Low Intensity Conflicts

Internal armed conflicts or wars of low intensity such as civil wars and liberation movements are most common conflicts today. In the absence of a comprehensive international treaty on terrorism, there is no precise legal definition of the term “terrorism”. And such definition must include a clear distinction between, criminal acts of terrorism and acts of resistance against foreign occupation and/or of national liberation. That a comprehensive definition shall likewise include acts by states, groups and individuals on the international as well as on the national level. The comprehensive approach must also be compatible with and even complementary to the UN General Assembly’s concern of the principle of self-determination as enshrined in the UN Charter and the “inalienable right to self-determination and independence of all peoples… under foreign occupation resulting therefrom, with the consequence of “upholding the legitimacy of … the struggle of national liberation movements’” (resolution 46/51 of December 1991). In conformity with the General Assembly resolutions, acts of national resistance shall not be criminalized per se, but shall be judged according to the same rules as acts of regular warfare by a national army. Thus, both state and non-state actors shall be held by the same standards of international humanitarian law. (21)

Under the Rome Statute, crimes against humanity is distinguished from ordinary crimes in three ways: ”First, the acts constituting said crimes such as murder, must have been ‘committed as part of a widespread or systematic attack;’ “Second, they must be knowingly directed against a civilian population; and third, they must have been committed pursuant to a “State or organizational policy”. In case of a State, they can be committed by state agents or by persons acting at their instigation or with their acquiescence, such as vigilantes or para-military units. It can also be committed pursuant to policies of organization, such as rebel groups, which have no connection with the government. The Rome State covers eleven types of acts amounting to crimes against humanity.

Article 8 of the Rome Statute has incorporated the Hague Convention IV of 1907, and its Regulations, the four Geneva Conventions of 1949 and their 1977 Protocols. The ICC has jurisdiction over a wide range of war crimes committed during international armed conflicts, including the power to try war crimes committed in an internal armed conflicts. Unlike crimes against humanity, a war crime can be single, isolated, dispersed or random act, without any requirement that it be widespread or systematic.

Paragraph 2(c), Art. 8 of the Rome Statute covers serious violation of Article 3 common to the four Geneva Conventions in case of armed conflict not of an international character committed against persons, taking no active part in the hostilities”, namely:

1. violence to life and person, such as murder, mutilation, cruel treatment and torture;

2. committing outrages upon personal dignity, in particular humiliating and degrading treatment;

3. taking of hostages;

4. passing sentence and carrying out executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees generally recognized as indispensable.

The ICC has also the power to try other serious violations of humanitarian law recognized in Protocol II of the Geneva Conventions, which constitute serious violations of the laws and custom applicable in armed conflict not of an international character. Paragraph 2(e) of Art. 8 of the Rome Statute enumerates twelve (12) prohibited acts. Paragraph 2(c) of Art. 8 does not apply to situations of internal disturbances and tensions, such ad riots, isolated and sporadic acts of violence or other acts of a similar nature. (22)

Liberation Movements and Islamic Militancy in the Asean Region

The ASEAN Region is an Islamic Archipelago stretching from southern Thailand down to the Malay peninsula towards the Indonesian Archipelago to the Moluccas Islands and upward towards Borneo, Mindanao and Sulu islands, including southern Palawan in Southern Philippines. (23) The region is a hosts to the so-called “moderate” or “Political Islam” which has lived in co-existence with their secular regimes. The rise of Islamic militancy is not new to the region. During the regime of Sukarno in Indonesia, a radical Islamic movement known as “Darul-Islam” emerged to contest the Sukarno secular role. This was short-lived after its leaders were either neutralized or went underground. What was significant is that from the early fifties and onward was the birth of various Islamic movements and organizations all aimed for Islamic revival and unity among its Muslim peoples. They were the “moderate” form of Islam that sought reforms within the existing political systems. Among them were the Nadhatul Ulama of Indonesia and the Philippine Muslim Association in the Philippines.

The scenario changed in the late sixties on account of the upheavals in the Middle East particularly the war of national liberation by the People of Palestine, the Vietnam War and the civil war in Afghanistan. Local national Islamic movements started to have overly of Islamic “irredentism”. While the former was originally aimed at national reform, the latter is aimed at changing the “World Order” as protest against western imperial dominance and corruption by leaders under existing Muslim regimes.

In the Philippines, the infamous “Jabbidah Massacre” became the pivotal point in the rise of Muslim militancy. (24) On May 1, 1968, the late Governor Datu Udtog Matalam issued the historic Manifesto calling for the organization of the Republic of Mindanao and Sulu.(25) During the declaration of Martial Law by former dictator Marcos the Moro National Liberation Front (MNLF) became the dominant force seeking for an independent Bangsa Moro Homeland. After Nur Misuari, Chairman of the MNLF signed the Tripoli Agreement with the Philippine government on December 23, 1976, the late Professor Salamat Hashim due to some differences with the former broke away from the MNLF and continued to pursue the Moro cause for an independent Bangsa Moro state. On September 2, 1996, the MNLF signed the Final Peace Agreement with the Philippine government.(26) The full implementation of the GRP-MNLF Final Peace Agreement of 1996 is still a hanging issue in the Organization of the Islamic Conference (OIC). Meantime the Arroyo government has an on-going peace negotiation with the MILF.

The September 11, 2001 attack on the New York Trade Center has transformed the ASEAN region as the second front for the US led war against terrorism. The issue of terrorism has now become a high priority agenda among ASEAN countries. To date, however, there is still no clear agreement among the ASEAN member states on the precise definition of terrorism. Ten ASEAN members during a two-day meeting in Kuala Lumpur in 2001 have agreed to disagree on what constitute terrorism. Instead, they focused on forming a united anti-terror front and pledged to set up a strong regional security framework agreement.(27)

The campaign against terrorism in the ASEAN region is hampered by the lack of a precise definition of what constitute “terrorism” as a transnational crime. The Philippines and the rest of the ASEAN countries are still in the stage of drafting anti-terror laws. In the proposed Anti-Terrorism Act of 1995, “Terrorism” is defined as “the use of violence, threat or intimidation or destructive of lives or properties with the objective of creating fear in the public mind to achieve a purported political end and to coerce or influence their behavior to undermine the confidence of the general public on the government.”

In the Agreement on Information Exchange and Establishment of Communication Procedures signed in May 2002 between the Philippines, Malaysia and Indonesia, terrorism is defined as “any act of violence or threat thereof perpetrated to carry out within the respective territories of the parties or in the border area of any of the Parties by an individual or collective criminal plan with the aim of terrorizing people or threatening to harm them or imperiling their lives, honour, freedom, security or rights or exposing the environment of any facility or public private property to hazards or occupying or seizing them or endangering a natural resource, or international facilities, or threatening the stability, territorial integrity, political unity or sovereignty of Independent States.” (28)

The above definitions suffer serious flaws. It run counter to the Geneva Declaration on Terrorism of 1987 “which undertook an effort towards a comprehensive definition including acts by states, groups and individuals on the international as well as on the national level.” (29) The definition has also