Some laws are ahead of their time. Their enactment may have been initially performative—intended primarily to signal adherence to international norms and thus convey a sense of belonging to the wider community of civilized nations. Such laws are typically forgotten until unforeseen events rouse them from dormancy. Like stars unexpectedly aligning, they provide the perfect solution to knotty legal problems that couldn’t have been anticipated even by their original proponents.
Such a law is Republic Act No. 9851, “An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, Organizing Jurisdiction, Designating Special Courts, and for Related Purposes,” passed on Dec. 11, 2009, timed perfectly for International Human Rights Day. Who would have thought that this obscure law would someday be invoked to justify the arrest and surrender of a former president and an incumbent senator to face charges of crimes against humanity before the International Criminal Court (ICC) at The Hague?
What RA 9851 effectively accomplished was to make prevailing international norms and covenants on international humanitarian law, genocide, and other crimes against humanity an integral part of Philippine domestic law. This meant, among other things, that we as a nation voluntarily recognized the authority of international tribunals like the ICC—two years before we formally ratified the Rome Statute, the treaty that established the ICC.
It is significant that RA 9851 predates our ICC membership. Since its validity as domestic law does not rest on that membership, it may reasonably be assumed that the country’s withdrawal from the ICC in 2019 did not diminish its enforceability. Unless repealed by Congress, it remains in full force. Why does this matter?
Section 17, second paragraph, of this law expressly provides: “In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.”
This provision was not part of either the original House or Senate versions of the bill. It was inserted during the final Senate deliberations—and its insertion was consequential. The idea of deferring to the authority of an international tribunal already investigating or prosecuting such a crime reflects an understanding of how international and domestic jurisdictions are meant to relate to each other. Such a provision could only have been championed by senior legislators with deep familiarity with international humanitarian law. My strong hunch is that these were the late Sen. Miriam Defensor-Santiago, who was later elected as an ICC judge, and former Sen. Richard Gordon, who as chair of the Philippine National Red Cross was a member of the national committee for international humanitarian law (IHL). In today’s climate of resurgent nationalism and reflexive hostility toward international institutions, it is hard to imagine such a provision surviving legislative scrutiny.
It is worth noting, if only briefly, that the loudest voices today protesting the arrest and surrender of former President Rodrigo Duterte to the ICC—and now of Sen. Ronald “Bato” dela Rosa as well—include senators who were officially identified with the passage of RA 9851: Senators Jinggoy Estrada, Loren Legarda, and Francis “Chiz” Escudero. They have apparently forgotten that they had anything to do with a law that is now doing much of the work of justifying the turnover of both men to The Hague. The irony speaks for itself.
Credit must go, above all, to those who quietly took the initiative to draft the bills that became the law’s foundation. Chief among them is civil society leader, retired Naga Regional Trial Court judge, and passionate long-term advocate of international humanitarian law, Soliman M. Santos Jr. Working with the Philippine National Red Cross IHL national committee, Santos helped push the legislation through in 2009. In a paper he wrote the following year, he noted that he used the Rome Statute itself as the model for his drafts—which makes it all the more fitting that the law he helped bring into being now serves as the domestic legal bridge to the very court that Statute created.
Yet in many ways, RA 9851 did more than anticipate our obligations as a state party to the ICC. It made them unequivocal—and, as a domestic law, it has outlived our membership in the ICC itself.
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