The Philippine government’s decision to sign a bilateral agreement with the United States giving US soldiers immunity from prosecution in the International Criminal Court (ICC) was not unexpected. But several concerns make it disturbing.

The first of these is the reason for the agreement and the possibility that for the same reason the Philippines will end up not ratifying the Rome Statute that created the ICC in 1998.

The Philippines did sign the Statute, and is among the 139 countries that have so far signed it. For the Statute to have the force of law in the Philippines, however, it has to be ratified by the Philippine Senate.

The establishment of the ICC now headquartered in The Hague in The Netherlands — was a landmark, the fruition of nearly a century’s effort to create a permanent court that would try the worst offenses committed by individuals during war. The effort to do so in the early years of the 20th century when the most devastating wars in the history of humanity occurred, during which unspeakable war crimes were committed by various protagonists against entire populations (e.g., by Japan in Nanking, and by the US against Nagasaki and Hiroshima, both during World War II) was for a number of reasons not very successful.

But in 1948 the UN’s International Law Commission began a study on the feasibility of creating an international court to try cases of genocide (the physical elimination of an entire people, race, or nation). The ILC concluded that such a body was as feasible as it was necessary, and the UN General Assembly created a committee to draft a statute establishing such a court.

A draft completed in 1953 was shelved largely for political reasons. The draft was revived in 1989, and the ILC once more tasked to work on the establishment of an international court.

In 1998 the UN called a conference in Rome to put in final form a statute that would establish the court, in the wake the war atrocities committed in the former Yugoslavia and in Rwanda, which had led to the creation of UN war crimes tribunals. The representatives of 160 countries and 250 non-governmental organizations, among others, attended the conference.

The Statute was initially signed by 120 countries, but was opposed by seven, with 21 abstaining. Among the countries that refused to sign the Statute, China, Israel and the United States chose to openly state their reasons for their opposition.

Primarily the US feared that its soldiers abroad could be brought before the Court on politically-motivated charges to which possibility soldiers from every country serving abroad would be similarly vulnerable. But since it is composed of the best legal minds from all over the globe, the ICC would presumably be able to distinguish such charges from those based on legitimate grounds.

The US did eventually sign the Statute. But this was during the Clinton administration. The Bush government, given its emphasis on aggressive intervention worldwide, cited the same reasons advanced by the Clinton administration in 1998, and withdrew the US signature in May 2002.

Since then the United States has waged a tough campaign against the Statute which has included the threat of not providing military aid to those countries that ratify the Statute and that do not enter into a bilateral agreement exempting US troops from ICC prosecution. A US law passed in 2002, called the American Service Members Protection Act, thus provides that countries without a bilateral agreement exempting US troops from ICC prosecution will not get military aid. US policy also prohibits military aid to any country that ratifies the Statute.

The reason for the Philippine agreement with the US is thus clear enough, and the possibility high that the Senate will not ratify the Rome Statute.

The US pledges of aid in the form of military hardware that President Arroyo brought home from her US state visit can materialize only if the Philippines signed the agreement. On the other hand, any future US military aid to this “non-NATO ally” will depend on whether or not the Philippines ratifies the Rome Statute — a compelling inducement to nonratification not only by this administration but also by any future one.

A second, equally important concern is what the bilateral agreement will mean if US troops the Arroyo administration has welcomed with wide-open limbs commit in Philippine territory any of the crimes specified by the ICC mandate. Should that happen, the Philippines cannot complain before the ICC, and will have to rely on the goodwill of the US and its own capacity to prosecute the offender or offenders which will in turn depend upon the terms of reference governing US troop presence in the Philippines.

A third, though no less critical issue is the Philippines’ contributing to the sum total of human misery by being part of the US campaign to sabotage the global effort to institutionalize the prosecution of war crimes, and thus make them less likely.

That effort has never been more needed. Although the prospects for the final elimination of war have never been bright, they have become especially dim lately. Leading the pack of reasons is the lone superpowers’ focus on assuring total domination over the planet and control over its most strategic resources, of which the attack on Iraq is only the beginning.

As the war historian Gabriel Kolko (Another Century of War? New Press: 2002) predicts, the 21st century is likely to be a century of permanent warfare as a result of current US policies, which are essentially the continuation of 50 years of the “unsuccessful and immoral (as well as) stupid” policy of imposing its will on the world. The recently announced, planned redeployment of US forces to the Philippines among other countries (which is likely to lead to the return of US military bases, albeit under another name) is a sure sign of the US focus on remaking the world through forcible “regime change” and other aggressive means.

There are reasons enough to be disturbed over the emerging state of the world under today’s far more aggressive, and therefore far more dangerous, rule of US imperialism. But there are also more immediate, closer to home reasons for distress over what can happen in the Philippines as US troops occupy portions of Philippine territory with the connivance of the Philippine political elite.

Among them are the potential for attacks on the population, and the nil possibility of redress. The ICC provides an avenue of redress for genocide, crimes against humanity, crimes of aggression, and other war crimes, but that avenue would henceforth be closed to the Philippines if such crimes — for example, the killing of civilians in the course of a military campaign — are committed by US troops. The Philippines would then have recourse for redress only to the justice system of the United States, or its own courts.

The record of both during the over 40 years when the Philippines played host to US military bases does not invite confidence. Neither is last year’s Balikatan experience encouraging.

In all the years the US military bases were in the Philippines, no US soldier was ever seriously tried in Philippine courts for any offense committed on Philippine soil, including the shooting of scavengers, and even rape outside Clark and Subic. Neither has any US soldier ever been tried in a US court for such offenses.

But as if in warning of the possibilities as the Philippines renews and strengthens military links with the United States, last year a US soldier shot a Filipino civilian in Mindanao during a search for Abu Sayyaf bandits — and was promptly flown out of the country.

The agreement thus increases the possibility of this country’s reliving its past experience with US troops — the inevitable result of having leaders who either can’t remember history or have never quite understood its lessons.

(Today/, June 7, 2003)

Prof. Luis V. Teodoro is a former dean of the University of the Philippines College of Mass Communication, where he used to teach journalism. He writes political commentary for BusinessWorld.

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