International Criminal Court

Establishment of the Court

The International Criminal Court was established by the Rome Statute of the International Criminal Court, so called because it was adopted in Rome, Italy on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The Rome Statute is an international treaty, binding only on those States which formally express their consent to be bound by its provisions. These States then become “Parties” to the Statute. In accordance with its terms, the Statute entered into force on 1 July 2002, once 60 States had become Parties. Today, 106 States have become Parties to the Statute. The States Parties meet in the Assembly of States Parties which is the management oversight and legislative body of the Court.
Following the adoption of the Rome Statute, the United Nations convened the Preparatory Commission for the International Criminal Court. As with the Rome Conference, all States were invited to participate in the Preparatory Commission. Among its achievements, the Preparatory Commission reached consensus on the Rules of Procedure and Evidence and the Elements of Crimes. These two texts were subsequently adopted by the Assembly of States Parties. Together with the Rome Statute and the Regulations of the Court adopted by the judges, they comprise the Court’s basic legal texts, setting out its structure, jurisdiction and functions.

Structure of the Court

The Court is an independent institution. The Court is not part of the United Nations, but it maintains a cooperative relationship with the U.N. The Court is based in The Hague , the Netherlands , although it may also sit elsewhere.
The Court is composed of four organs. These are the Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.
Presidency
Judicial Divisions
Office of the Prosecutor
Registry
Other Offices

Presidency
The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. The Presidency is composed of three judges of the Court, elected to the Presidency by their fellow judges, for a term of three years. The President of the Court is Judge Philippe Kirsch ( Canada ). Judge Akua Kuenyehia ( Ghana ) is First Vice-President, and Judge René Blattmann ( Bolivia ) is Second Vice-President.
Judicial Divisions
The Judicial Divisions consists of eighteen judges organized into the Pre-Trial Division, the Trial Division and the Appeals Division. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages. Assignment of judges to Divisions is made on the basis of the nature of the functions each Division performs and the qualifications and experience of the judge. This is done in a manner ensuring that each Division benefits from an appropriate combination of expertise in criminal law and procedure and international law. The judges of the Court are: Philippe Kirsch (Canada), Akua Kuenyehia (Ghana), Judge René Blattmann (Bolivia), Georghios M. Pikis (Cyprus), Elizabeth Odio Benito (Costa Rica), Navanethem Pillay (South Africa), Sang-Hyun Song (Republic of Korea), Hans-Peter Kaul (Germany), Mauro Politi (Italy), Maureen Harding Clark (Ireland), Erkki Kourula (Finland), Fatoumata Dembele Diarra (Mali), Anita Ušacka (Latvia), Adrian Fulford (United Kingdom), Syvia Steiner (Brazil) and Ekaterina Trendafilova (Bulgaria).
Office of the Prosecutor
The Office of the Prosecutor is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. The Office is headed by the Prosecutor, Luis Moreno Ocampo ( Argentina ), who was elected by the States Parties for a term of nine years. The Prosecutor is assisted by two Deputy Prosecutors, Serge Brammertz ( Belgium ) with responsibility for investigations and Fatou Bensouda (The Gambia) with responsibility for prosecutions.
Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The current Registrar, elected by the judges for a term of five years, is Bruno Cathala ( France ).
Other Offices
The Court also the Court includes a number of semi-autonomous offices such as the Office of Public Counsel for victims and the Office of Public Counsel for Defence. These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices. The Assembly of States Parties has also established a Trust Fund for the benefit of victims of crimes within the jurisdiction of the Court and the families of these victims.

Jurisdiction and Admissibility

The Court may exercise jurisdiction over genocide, crimes against humanity and war crimes. These crimes are defined in detail in the Rome Statute. In addition, a supplementary text of the “Elements of Crimes” provides a breakdown of the elements of each crime.
The Court has jurisdiction over individuals accused of these crimes. This includes those directly responsible for committing the crimes as well as others who may be liable for the crimes, for example by aiding, abetting or otherwise assisting in the commission of a crime. The latter group also includes military commanders or other superiors whose responsibility is defined in the Statute.
The Court does not have universal jurisdiction. The Court may only exercise jurisdiction if:
The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.
The Court’s jurisdiction is further limited to events taking place since 1 July 2002. In addition, if a State joins the Court after 1 July 2002, the Court only has jurisdiction after the Statute entered into force for that State. Such a State may nonetheless accept the jurisdiction of the Court for the period before the Statute’s entry into force. However, in no case can the Court exercise jurisdiction over events before 1 July 2002.
Even where the Court has jurisdiction, it will not necessarily act. The principle of “complementarity” provides that certain cases will be inadmissible even though the Court has jurisdiction. In general, a case will be inadmissible if it has been or is being investigated or prosecuted by a State with jurisdiction. However, a case may be admissible if the investigating or prosecuting State is unwilling or unable to genuinely to carry out the investigation or prosecution. For example, a case would be admissible if national proceedings were undertaken for the purpose of shielding the person from criminal responsibility. In addition, a case will be inadmissible if it is not of sufficient gravity to justify further action by the Court.

How the Court Works

States Parties or the United Nations Security Council may refer situations of crimes within the jurisdiction of the Court to the Prosecutor. The Prosecutor evaluates the available information and commences an investigation unless he determines there is no reasonable basis to proceed.
The Prosecutor may also begin an investigation on his own initiative. In doing so, he receives and analyzes information submitted by a variety of reliable sources. If the Prosecutor concludes there is a reasonable basis to proceed with an investigation, he asks a Pre-Trial Chamber to authorize an investigation.
The Prosecutor’s investigations cover all facts and evidence relevant to an assessment of criminal responsibility. The Prosecutor investigates incriminating and exonerating circumstance equally and fully respects the rights of the accused.
During the duration of an investigation, each situation is assigned to a Pre-Trial Chamber. The Pre-Trial Chamber is responsible for the judicial aspects of proceedings. Among its functions, the Pre-Trial Chamber, on the application of the Prosecutor, may issue a warrant of arrest or a summons to appear if there are reasonable grounds to believe a person has committed a crime within the jurisdiction of the Court. Once a wanted person has been surrendered to or voluntarily appears before the Court, the Pre-Trial Chamber holds a hearing to confirm the charges that will be the basis of the trial.
Following the confirmation of charges, a case is assigned to a Trial Chamber of three judges. The Trial Chamber is responsible for conducting fair and expeditious proceedings with full respect for the rights of the accused. The accused is presumed innocent until proven guilty by the Prosecutor beyond reasonable doubt. The accused has the right to conduct the defence in person or through counsel of his or her choosing. Victims may also participate in proceedings directly or through their legal representatives.
Upon conclusion of the proceedings, the Trial Chamber issues its decision, acquitting or convicting the accused. If the accused is convicted, the Trial Chamber issues a sentence for a specified term of up to thirty years or, when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, life imprisonment. The Trial Chamber may also order reparations to victims.
Throughout the Pre-Trial and Trial phases, the accused, the Prosecutor or a concerned State may appeal decisions of the Chambers as specified by the Statute. Following the decision of the Trial Chamber, the Prosecutor or the accused may appeal the decision or sentence as provided in the Statute. Legal representatives of victims, the convicted person or bona fide owners of adversely-affected property may appeal reparations orders. All appeals are decided by the Appeals Chamber of five judges.

International Cooperation

In all of its activities, the Court relies on international cooperation, in particular from States.
States Parties are obliged to cooperate fully with the Court in its investigations and prosecutions. States Parties may cooperate in, inter alia, arresting persons wanted by the Court, providing evidence for use in proceedings, relocating witnesses, and enforcing the sentences of convicted persons. The Court may also receive cooperation from non-States Parties, and may enter into arrangements or agreements to provide cooperation.
International organizations also provide important support to the Court. Foremost among these is the United Nations. On 4 October 2004, the President of the ICC Philippe Kirsch and the Secretary-General of the United Nations Kofi Annan concluded the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. This Agreement provides for institutional relations, cooperation and judicial assistance between the Court and the United Nations while reaffirming the independence of the Court.

RELEVANT Questions : ICC

1. Why is an International Criminal Court necessary?

This past century has seen some of the worst atrocities in the history of humanity.In too many cases, these crimes have been committed with impunity, which has only encouraged others to flout the laws of humanity.States representative of the international community met in order to negotiate and agree upon the establishment of a treaty based International Criminal Court to help end impunity and the gross violations of international humanitarian law.

2. What are the key features of the ICC?

Based in the Hague, The Nederlands, the International Criminal Court is the first ever permanent international institution, with jurisdiction to prosecute individuals responsible for the most serious crimes of international concern : genocide, crimes against humanity and war crimes. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to it.The jurisdiction of the ICC will be complementary to national courts, which means that the Court will only act when countries themselves are unable or unwilling to investigate or prosecute.The jurisdiction and functionning of the court is governed by the provisions of the Rome Statute. The ICC also has strong protections for due process, procedural safeguards to protect it from abuse, and furthers victims' rights and gender justice under international law.

3. When did the Rome Statute of the International Criminal Court enter into force?

The ICC Statute entered into force on 1 July 2002, 60 days after the 60th ratification needed to create the Court was received on April 11th at a special event at the United Nations, when 10 countries simultaneously deposited their instruments of ratification.

4. Doesn’t “complementarity” mean that the International Criminal Court can never prosecute if a country holds its own trial?

The International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes.If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute.A country may be determined to be "unwilling" if it is clearly shielding someone from responsibility for ICC crimes. A country may be "unable" when its legal system has collapsed.

5. Who can initiate proceedings?

Proceedings before the ICC may be initiated by a State Party, the Prosecutor or the United Nations Security Council. The jurisdiction of the ICC is based on "complementarity", which allows national courts the first opportunity to investigate or prosecute.

6. Can the ICC be used to try crimes committed before the Rome Treaty entered into force?

The ICC will not have retroactive jurisdiction and therefore will not apply to crimes committed before 1 July 2002, when the Statute entered into force.

7. Why is the Court not exercising its jurisdiction over the crime of aggression?

The Rome Statute included the crime of aggression within the jurisdiction of the Court. However, the States Parties must adopt an agreement setting up a definition of aggression and the conditions under which the Court could exercise its jurisdiction. A review conference will be held in 2009, seven years from the date that the Rome Statute entered into force, during which the matter will be discussed.

8. Can the ICC deal with terrorist acts within its existing jurisdiction?

The ICC will have jurisdiction over genocide, crimes against humanity and war crimes. The ICC may be able to prosecute terrorist acts only if they fall within these categories.

9. How is the ICC different from the ad hoc Tribunals for Rwanda and the former Yugoslavia?

The International Criminal Court is the product of a multilateral treaty, whereas the Tribunals for the former Yugoslavia and Rwanda were created by the United Nations Security Council. These tribunals were created in response to specific situations and will be in existence for a limited time period. The ICC is a permanent international criminal tribunal and will avoid the delays and costs of creating ad hoc tribunals.

10. How is the ICC different from the International Court of Justice?

The International Court of Justice (ICJ) does not have criminal jurisdiction to prosecute individuals. It is a civil tribunal that deals primarily with disputes between States. The ICJ is the principle judicial organ of the United Nations, whereas the ICC is independent of the UN.

11. Where is the International Criminal Court located?

The ICC has established its headquarters in The Hague, The Netherlands. The Court is currently located at ‘de arc’. Address: Maanweg 174, 2516 AB, The Hague, Netherlands. Postal Address: Po Box 19519, 2500 CM, Den Haag, Netherlands.

12. How many people work for the ICC?

As at October 2004, 116 women and 134 men work for the ICC, coming from 60 states.

Victims and witnesses

One of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the series of rights granted to victims. For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court.
Participation before the Court may occur at various stages of proceedings and may take different forms. Although it will be up to the judges to give directions as to the timing and manner of participation.
Participation in the Court's proceedings will in most cases take place through a legal representative and will be conducted ”in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial”.
The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative justice that will enable the ICC, not only to bring criminals to justice but also to help the victims themselves obtain justice.

Assembly of States Parties

The Assembly of States Parties is the management oversight and legislative body of the International Criminal Court.It is composed of representatives of the States that have ratified and acceded to the Rome Statute. Each State Party is represented by a representative who is proposed to the Credential Committee by the Head Of State of government or the Minister of Foreign Affairs (Chapter IV of the Rules of Procedure of the Assembly of States Parties).The Assembly of States Parties has a bureau, consisting of a President, two Vice Presidents and 18 members elected by the Assembly for a three-year term, taking into consideration principles of equitable geographic distribution and adequate representation of the principal legal systems of the world.On its second session in September 2003, the Assembly of States Parties decided to establish a Permanent Secretariat (ICC-ASP/2/L.5).
The Assembly of States Parties decides on various items, such as the adoption of normative texts and of the budget, the election of the judges and of the Prosecutor and the Deputy Prosecutor(s) .According to article 112 (7), each State Party has one vote and every effort has to be made to reach decisions by consensus both in the Assembly and the Bureau. If consensus cannot be reached, decisions are taken by vote.

The Court Today

Since the Statute entered into force on 1 July 2002, the Court has developed into a fully functioning institution.
Four situations have been referred to the Prosecutor. Three State Parties (Uganda, Democratic Republic of the Congo and Central African Republic) have referred situations occurring on their territories to the Court, and the Security Council, acting under Chapter VII of the United Nations Charter, has referred a situation on the territory of a non-State Party (Darfur, Sudan).
After analysing the referrals for jurisdiction and admissibility, the Prosecutor began investigations in three situations – Uganda; Democratic Republic of the Congo and Darfur, Sudan. On 8 July 2005, the Court issued the first arrest warrants with regard to the situation in Uganda. Subject to sufficient cooperation in arresting persons, the Court will begin trials soon.
The Prosecutor continues to monitor situations in other countries, including Côte d’Ivoire, a non-State Party, which declared its acceptance of jurisdiction over crimes on its territory.

RECOGNITION

Marcos vs Manglapus , G. R. No. 88211 , September 15, 1989

Facts : In February 1986, Ferdinand E. Marcos was deposed from presidency via people power and forced into exile in Hawaii. Nearly three years after, in his deathbed seeks return to the Philippines to die.

Thus, this petition for mandamus and prohibition asks the Court to order the respondent to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the the implementation of President Aquino’s decision to bar their return to the Philippines.

Petitioners contend that the right of the Marcoses to return to the Philippines is guaranteed under the Bill of Rights. That the President is without power to impair the liberty of abode of the Marcoses because only the court may do so “within the limits prescribed by law.” The President has enumerated powers and what is not enumerated is impliedly denied to her.

Issues : Whether or not the President has the power under the Constitution, to bar Marcoses from returning to the Philippines

Whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction upon determining that the Marcoses’s return poses a serious threat to national interest and welfare and decided to bar their return

Held : The executive power of the President under the Constitution is more than the sum of specific powers enumerated under the Constitution. In balancing the general welfare and the common good against the exercise of rights of certain individuals, the power involved is the President’s residual power to protect the general welfare of the people. Presidential power is a wide discretion, within the bounds of laws and extraordinary in times of emergency.

The President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family poses a serious threat to national interest and welfare. There exist factual bases in the President’s decision in the pleadings, oral arguments and facts filed by the parties during the briefing in chambers by the Chief of Staff of the Armed of the Philppines and National Security Adviser.

That the President has the power under the Constitution to bar the Macrose’s from returning has been recognized by the members of the Legislature. Through a Resolution proposed in the House of Representative, signed by 103 members urging the President to allow Mr. Marcos to return to the Philippines –an act of true national reconciliation. The Resolution does not question the President’s power but was an appeal to allow a man to come home and to die in his country. Such request submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or not.

The case is not a political question and for such, the court exercised its judicial power involving the determination whether there has been a grave abuse of discretion on the part of any branch or instrumnetality of the government.

Petition is hereby DISMISSED.

_______________________________________

ICMC vs Calleja , G.R. No. 85750 , September 28, 1990

Facts : After the Vietnam War, the international community was confronted with a problem on the plight of Vietnamese refugees fleeing from South Vietnam. In response, an agreement was forged between Philippine Government and United Nations High Commissioner for refugees to create an operating center for the resettlement of refugees.

Under the said agreement, the International Catholic Migration Commission (ICMC) was accredited by the Philippine Government to operate the refugee processing center in Morong, Bataan. The ICMC was considered a non-profit agency involved in international and humanitarian and voluntary work.

However, on July 14, 1986, the Trade Unions of the Philippines and Allied Service (TUPAS) filed to the then Ministry of Labor and Employment a Petition for Certification Election among the rank and file members employed by ICMC.

Afterwhich, while ICMC’s request for recognition as a “specialized agency” was still pending, Director Pura Calleja of the Bureau of Labor Relations (BLR) ordered ICMC the immediate conduct of certification of election.

Subsequently, through the Department of Foreign Affairs (DEFORAF) the ICMC was granted a status of a specialized agency with corresponding diplomatic priveleges and immunities. ICMC then sought immediate dismissal of TUPAS petition invoking immunities expressly granted but were twice denied by respondent BLR director. Thus, the present Petition for Certiorari is now at bar.

Issue : Whether or not the grant of diplomatic priveleges and immunities to ICMC extends to immunity from the application of Philippine labor laws

Held : The immunity granted being from every form of legal process except in any particular case they have expressly waived the immunity.
Respondent’s claim in so far as stating that a certification of election is beyond the scope of immunity. That such is not a suit against ICMC but mere investigation of a non-adversary fact-finding character were all rejected.

The immunuties accorded to international organization constitute a categorical recognition by the executive branch of the Government. Its determination is held to be a political question and courts should refuse to look beyond a determination by the Executive Branch. Where the plea of diplomatic immunity is recognized an affirmed by the executive branch as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion of the principal law officer of the government or other officer acting under his direction - as for this case the DEFORAF.

Moreover, the exercise of jurisdiction by the Department of Labor would defeat the very purpose of immunity, which is to shield the affairs of internatinal organizations, in accordance with international practice, from political pressure or control by the host country and to ensure unhampered perfromance of their functions.

Petition is GRANTED.

__________________________________________________________
Tobar or Wilson Doctrine

- recognition shall not be extended to any government established by revolution, civil war, coup d'etat or other forms of internal violence until the freely elected representatatives of the people have organized a constitutional government.
Example : The Revolution in Nicaragua in which through the moral mandate of US, communicated to rebels in order to foster a true consititutional government and free elections aimed for the preservation of general welfare of Central America.

Stimson Doctrine

- non-recognition of international territorial changes brought about by breach of international obligation , by force or established as a result of external aggression.
Example : The United States did not recognize the Japanese-supported government in Manchukuo (1932) or the Italian government in Ethiopia (1936).

Estrada Doctrine

- enclosed view of sovereignty
- it claimed that foreign governments should not judge, for good or bad, governments or changes in governments in other nations, because it would imply a breach to its sovereignty
-diclaiming the right if foreign states to rule upon the legitimacy of the government of another state
- the policy of recognizing states rather than governments
Example : Many Latin Americans condemn the idea of the US unilaterally "certifying" nations as fighting against the drug trade

ZIMBABWE Situation

Unstoppable Problem

With no end in sight to the worsening scenario of Zimbabwe's human rights abuses, pressure is now beginning to mount on southern African countries to break the silence and join hands to help resolve the neighbouring country's crisis.

"All SADC (Southern African Development Community) member states must move into Zimbabwe to organize elections and to make the people come together" says Wisdom Gondwe, a Lusaka-based political observer.

"As far as the situation in Zimbabwe is concerned, President Robert Mugabe is ruling by default, he is not the president of Zimbabwe because his mandate expired before the (March 29) election. So, that country's chief justice should have been in control during the period of preparing for the election re-run. He is ruling by default, and even his government officials are all ruling by default."

Zimbabwe is in its eighth year of an economic recession that has seen inflation soar to unofficial estimates of one million per cent - the highest ever in the world - and unemployment levels rising to above 80 per cent. Shortages of key commodities such as fuel and food, have over the years been commonplace in literally every corner of the once-buoyant southern African economic giant.

According to international donor organizations, nearly five million Zimbabweans are in need of emergency food assistance this year alone. It is estimated that as many as three million Zimbabweans could have left the country for neighbouring states, such as Zambia, Botswana, Malawi and South Africa, or have gone further outside the continent to England and the United States.

Inside Zimbabwe, a myriad of glaring cases of violent attacks has been reported with about 86 people, mostly supporters of the opposition Movement for Democratic Change (MDC) killed in targeted attacks since the March 29 election, according to the MDC.
The first round presidential election was won by the MDC's Morgan Tsvangarai, but he fell short of the required 50 per cent plus one vote for an outright victory, forcing a re-run with Mugabe, 84,who has ruled Zimbabwe since independence in 1980. -The Times of Zambia

UN takes part

The U.N. Security Council has unanimously condemned the Zimbabwean government because of violence that has marred the campaign leading up to a scheduled presidential election runoff, which forced the withdrawal of the opposition candidate from the race.

The council's statement that questioned the legitimacy of any election held under such circumstances but did not directly call for the runoff, scheduled for Friday, to be postponed.

Earlier, U.N. Secretary-General Ban Ki-moon made that appeal, saying the vote runoff as currently scheduled "would only deepen divisions within the country and produce a result that could not be seen as credible."

But Boniface Chidyausiku, Zimbabwe's ambassador to the United Nations, said after the Security Council vote that the runoff would take place as planned.

"The Security Council cannot micromanage political elections in any country," he said. "They have expressed their view, and we take note of their view. But as far as we're concerned, the date is set." HARARE, Zimbabwe (CNN)

In the past, United Nations Emergency Coordinator Jan Egeland, said that the humanitarian situation in the southern Africa is “extremely serious and it is worsening as we speak.”

The UN and donor countries could contribute to breaking the vicious circle which had locked the Zimbabwean people into declining standards of living. The country that had enjoyed a life expectancy of more than 60 years about 16 years ago now has seen that cut to only 32 years today.

It’s heartbreaking to meet with people who are fearing the future because of food insecurity, which is affecting the majority of the people. Prices are spiralling as food is becoming increasingly scarce. It was heartbreaking to meet victims of the eviction campaign last summer, who now are back in the same place, only in much worse shelter than the house that was bulldozed.”

The UN wants to do more to help, he said, noting that it launched an appeal last week for $276 million for food aid, medical assistance, safe water and sanitation, as well as general assistance for Zimbabwe’s people.

Security Council to standstill

China last week once again demonstrated its willingness to opportunistically trade diplomatic favors for access to African riches. Joining with Russia, the People's Republic vetoed a UN Security Council resolution that would have imposed tough sanctions on Zimbabwe's President Robert Mugabe and other members of his illegitimate regime for rigging the country's presidential election.

In Zimbabwe, it's not petroleum that China covets. Rather, the African nation is the world's second-largest exporter of platinum, a key input for China's auto industry. China is also the world's largest steel producer, and Zimbabwe controls more than half of the world's known chromium reserves, used in making stainless steel.

That China implements this imperialistic strategy by leveraging its position as a permanent member of the UN Security Council with veto power is arguably one of the most reprehensible aspects of an amoral foreign policy. That foreign policy is founded on a principle that China's own President Hu Jintao has preached like the lowliest of rug merchants across Africa and Latin America: "Just business, no political conditions."

The veto power of the permanent members of SC (Big5) corrupts the functions and UN’s purpose. It makes it a slave of its own organization.

UN finds another way

U.N. Secretary-General Ban Ki-moon welcomed a deal between Zimbabwe's President Robert Mugabe and opposition leader Morgan Tsvangirai on Monday that paves the way for talks on forming a power-sharing government.

The preliminary agreement was signed in Harare's Rainbow Towers Hotel after weeks of deadlock since Mugabe was re-elected on June 27 in a widely condemned poll boycotted by Tsvangirai because of violence against his supporters.

"The Secretary-General encourages all sides to engage, in good faith, in serious talks that would lead to a lasting solution to the political crisis and address the urgent economic and humanitarian needs of the Zimbabwean people people," Ban's spokeswoman, Michele Montas, said in a statement.

Monday's meeting was the first in 10 years between Mugabe and Tsvangirai, who have long traded insults, but shook hands at the end of the ceremony, with the opposition leader referring to Mugabe as "comrade".

"The handshake is a good sign and we hope that something will be achieved," French U.N. Ambassador Jean-Maurice Ripert told reporters. "We hope it's the beginning of good work together between Mr Tsvangirai and Mr Mugabe.

"Ripert said that any political solution had to be built on the results of the first round of the presidential poll on March 29, which was won by Tsvangirai who fell short of an absolute majority, and that things "seem to be aiming in the right direction, so we're fully supportive."

France holds the rotating six-month presidency of the European Union.

Mugabe and Tsvangirai have been under heavy pressure to enter negotiations. They have both demanded to be recognized as Zimbabwe's rightful president.

Russian U.N. Ambassador Vitaly Churkin said the deal justified Moscow's decision to veto earlier this month, along with China, a Western-backed U.N. Security Council resolution to impose sanctions on Zimbabwe."It's very good news," Churkin said of the pact.

"It shows we were right when we said that there is potential (for) contacts between the parties in Zimbabwe and that this should be encouraged by the international community." -The Times of Zambia

SUDAN Conflict

Historical Background

A rebellion started in 2003 against the Arab-dominated Sudanese government, with two local rebel groups - the Justice and Equality Movement (JEM) and the Sudanese Liberation Army (SLA) - accusing the government of oppressing non-Arabs in favor of Arabs. The government was also accused of neglecting the Darfur region of Sudan. In response, the government mounted a campaign of aerial bombardment supporting ground attacks by an Arab militia, the Janjaweed. Literally translated, Janjaweed means 'devils on horseback'. The government-supported Janjaweed were accused of committing major human rights violations, including mass killing, looting, and systematic rape of the non-Arab population of Darfur. They have frequently burned down whole villages, driving the surviving inhabitants to flee to refugee camps, mainly in Darfur and Chad; many of the camps in Darfur are surrounded by Janjaweed forces. By the summer of 2004, 50,000 to 80,000 people had been killed and at least a million had been driven from their homes, causing a major humanitarian crisis in the region.

United Nations : First Intervention

On September 18, 2004, the UN Security Council passed Resolution 1564, which called for a Commission of Inquiry on Darfur to assess the Sudanese conflict. On January 31, 2005, the UN released a 176-Page report saying that while there were mass murders and rapes, they could not label it as genocide because "genocidal intent appears to be missing".[30] [31] Many activists, however, refer to the crisis in Darfur as a genocide, including the Save Darfur Coalition and the Genocide Intervention Network. These organizations point to statements by former U.S. Secretary of State Colin Powell, referring to the conflict as a genocide. Other activists organizations, such as Amnesty International, while calling for international intervention, avoid the use of the term genocide.

International Responses

International attention to the Darfur conflict largely began with reports by the advocacy organizations Amnesty International in July 2003 and the International Crisis Group in December 2003. However, widespread media coverage did not start until the outgoing United Nations Resident and Humanitarian Coordinator for Sudan, Mukesh Kapila, called Darfur the "world's greatest humanitarian crisis" in March 2004. A movement advocating for humanitarian intervention has emerged in several countries since then.

UN’s failure to prove existence of GENOCIDE

Genocide - murder of entire ethnic group: the systematic killing of all the people from a national, ethnic, or religious group, or an attempt to do this.

In January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, issued a report to the Secretary-General stating that "the Government of the Sudan has not pursued a policy of genocide." Nevertheless, the Commission cautioned that "The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide."

To address the dire human rights and humanitarian emergency in Darfur, the United Nations has taken several steps, but all of these have been frustrated by the Government of Sudan with the support of a number of other governments, including Egypt and Algeria.

In January 2005, the UN Secretary-General's International Commission of Inquiry on Darfur issued a well documented report that indicated that there was by then already some 1.6 million internally displaced persons as a result of the ongoing violence, more than 200,000 refugees from Darfur into neighbouring Chad, and that Government forces and allied militia had committed widespread and consistent war crimes and crimes against humanity including murder, torture, mass rape, summary executions and arbitrary detention. The Commission found that technically there was not a genocide in the legal sense of the term but that massive violations of human rights and humanitarian law were continuing. The Commission also found that the Janjaweed militia operated alongside or with ground or air logistical support from the Government's armed forces.

UN : Paralyzed

The United Nations Human Rights Council appointed seven UN human rights special rapporteurs to form a group of experts on Darfur.

On 11 December 2007, the group of experts issued its final 106-page report to the Human Rights Council which details the status of the Government's implementation of the recommendations the group had brought together and which concluded that the Government's implementation of human rights recommendations has been largely inadequate.
Attacks in January 2008 and February 2008 by Sudanese forces on Darfur villagers are described in a U.N. report, from March 20, 2008, as "violations of international humanitarian and human rights law."

As Sudan has not ratified the Rome Statute the International Criminal Court can not investigate crimes that may have taken place in Darfur unless the United Nations Security council asks them to under Article 13.b of the Rome Statute ("A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations").

In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the report of the International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, but without mentioning any specific crimes. Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution. As of his fourth report to the Security Council, the Prosecutor has found "reasonable grounds to believe that the individuals identified [in the UN Security Council Resolution 1593] have committed crimes against humanity and war crimes," but did not find sufficient evidence to prosecute for genocide.
In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmad Harun, and a Militia Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes. The Sudan Government says that the ICC had no jurisdiction to try Sudanese citizens and that it will not hand the two men over to its custody.

Criticisms of International Response

On October 16, 2006, Minority Rights Group (MRG) published a critical report, challenging that the UN and the great powers could have prevented the deepening crisis in Darfur and that few lessons appear to have been drawn from their ineptitude during the Rwandan Genocide. MRG's executive director, Mark Lattimer, stated that: "this level of crisis, the killings, rape and displacement could have been foreseen and avoided ... Darfur would just not be in this situation had the UN systems got its act together after Rwanda: their action was too little too late." On October 20, 120 genocide survivors of the Holocaust, the Cambodian and Rwandan Genocides, backed by six aid agencies, submitted an open letter to the European Union, calling on them to do more to end the atrocities in Darfur, with a UN peacekeeping force as "the only viable option."

China : Criticized of supporting Sudan

As based on Security Council’s YALTA formula, substantive issues which requires the Security Council under it’s responsibility of maintaining or restoring world peace to invoke measures of enfrocement – the approval of which needs 9 votes including the Big Five (China as one of the Big 5). With the veto power vested to the so-called Big 5 , one vote from any of them will totally reject a draft of resolution or proposal of possible preventive measures. Under this Rule of Great-Power Unanimity, the Security Council is unable to function once any of the Big 5 exercises it’s veto power.

"Human Rights First" claimed that over 90% of the light weapons currently being imported by Sudan and used in the conflict are from China; however, according to Stockholm International Peace Research Institute (SIPRI)'s "Arms Transfers Data for 2007", between 2003-2007, Sudan received 87 per cent of its major conventional weapons from Russia and 8 per cent from China.[ Human rights advocates and opponents of the Sudanese government portray China's role in providing weapons and aircraft as a cynical attempt to obtain oil and gas just as colonial powers once supplied African chieftains with the military means to maintain control as they extracted natural resources. According to China's critics, China has offered Sudan support threatening to use its veto on the U.N. Security Council to protect Khartoum from sanctions and has been able to water down every resolution on Darfur in order to protect its interests in Sudan. In response to these allegations, Chinese Ambassador to Sudan Li Chengwen said that "China played an important role in promoting the agreement of the Sudanese government, the African Union and the UN for the deployment of the Hybrid Force in Darfur. China's view is that intensive economic development of the region is a more effective means than harsh economic sanctions, in the effort to stabilize the crisis and alleviate the suffering of the people".[60] Chinese Premier Wen Jiabao reiterated these views on February 20, 2008, and "pointed out that China was the first non-African nation to send peacekeepers to Darfur and the biggest development aid provider to the region". However accusations of the supply of weapons from China in breach of a UN embargo continue to arise.

Prosecutor for the International Criminal Court (ICC) has put countries providing arms to Sudan on notice that they are arming a potentially indicted war criminal, as well as likely violating the Genocide Convention, said Human Rights First.

China's trade and oil interests in Sudan have induced the permanent U.N. Security Council member to provide diplomatic cover for the government accused by many of war crimes against its own people, analysts say.

Sudan has had its back against the wall of the U.N. headquarters in New York during the past 18 months over the conflict in Darfur, where tens of thousands of people have died as a result of violence the United States called genocide. But the spectre of a Chinese veto has shielded Sudan from possible sanctions over the conflict and in turn protected a growing source of much-needed oil for Beijing. "This is RealPolitik," said Adwoa Kufuor, a human rights analyst on Sudan. "Yes China has economic interests ... and yes China will not risk offending the government of Sudan."
China's heavy but understated presence in Sudan is symbolised by the vast, walled compound housing its embassy on prime real estate in Khartoum. It dominates Sudan's crude oil sector, which produces around 330,000 barrels per day, and is building roads, bridges and dams. China has become Sudan's biggest foreign investor with $4 billion in projects.

China has in the past "sold" its UN veto power to protect Sudan from sanctions over the killing of people in Darfur in exchange for access to Sudanese oil. China is now Sudan's biggest customer.

Just Recently

On July 14, 2008, prosecutors at the International Criminal Court (ICC), filed ten charges of war crimes against Sudan's President Omar al-Bashir, three counts of genocide, five of crimes against humanity and two of murder. The ICC's prosecutors have claimed that al-Bashir "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity. The ICC's prosecutor for Darfur, Luis Moreno-Ocampo, is expected within months to ask a panel of ICC judges to issue an arrest warrant for al-Bashir.[19]
ICC Prosecutor Luis Moreno Ocampo referred President Bashir to the Court's Pre-Trial Chamber I, and requested that the chamber issue a warrant for his arrest for his role in perpetrating genocide in Darfur from 2003-2008, resulting in deaths of more than 300,000 people. The prosecutor’s request for a warrant marks the end of the initial phase of what is thus far a three-year investigation into crimes committed in all of Darfur, as well as the first time a sitting president has been charged with genocide.

MONTEVIDEO Convention

The Montevideo Convention on the Rights and Duties of States was a treaty (which was later accepted as part of customary international law) signed at Montevideo, Uruguay, on December 26, 1933, at the Seventh International Conference of American States.

A state as a person of international law should possess the following qualifications :

1. a permanent population – consist of a group of people, both sexes living together as a community. They must be sufficient in number to maintain and perpetuate themselves.
2. a defined territory – a known fixed portion on the earth’s surface occupied by the inhabitants.
3. government – must be organized, exercising control over and capable of maintaining law and order within the territory. It can be held internationally responsible for the acts of the inhabitants. The identity of the state is not affected by changes in government.
4. capacity to enter into relations with the other states – has an external sovereignty capable of conducting both its internal and foreign affairs.

The federal state constitute a sole person in the eys of international law. Thus, its fundamental rights are not susceptible of being affected in any manner whatsoever.

Determinative Factor of Statehood
- the political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

- the exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.

Judicial Equality among States
-states are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

What is a recognition of a state ?
The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.
The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state.

Domestic Jurisdiction of states
-no state has the right to intervene in the internal or external affairs of another
-the jurisdiction of states within the limits of national territory applies to all the inhabitants
-nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

Inviolability of states
-the contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure.
-the territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

Montevideo Convention’s ratification
-defines the mode of it’s applicability based on contracting parties’ respective procedures
-involves the transmission of the aunthentic certified copies to the governments and the instrument of ratification shall be deposited in the archives of Pan American Union in Washington
- the signatory governments will be notified of the said deposit and thus, considered as an exchange of ratification

Effects of the Montevideo Convention
-the present Convention shall not affect obligations previously entered into by the High Contracting Parties by virtue of international agreements.
-the present Convention will enter into force between the High Contracting Parties in the order in which they deposit their respective ratifications.

Coventions’s enforceability duration
General Rule : the present Convention shall remain in force indefinitely.

Exemption : may be denounced by means of one year's notice given to the Pan American Union, which shall transmit it to the other signatory governments. After the expiration of this period the Convention shall cease in its effects as regards the party which denounces but shall remain in effect for the remaining High Contracting Parties.

Signatories of the Convention
The states that signed this convention are:
Honduras, United States of America, El Salvador, Dominican Republic, Haiti, Argentina, Venezuela, Uruguay, Paraguay, Mexico, Panama, Guatemala, Brazil, Ecuador, Nicaragua, Colombia, Chile, Peru, Cuba.

Non- signatories of the Convention
- the present Convention shall be open for the adherence and accession of the States which are not signatories.

RESERVATIONS
(codification)
The Delegation of the United States of America, in signing the Convention on the Rights and Duties of States, does so with the express reservation presented to the Plenary Session of the Conference on December 22, 1933 :
“No time within which to prepare interpretations and definitions of these fundamental terms that are embraced in the report. Such definitions and interpretations would enable every government to proceed in a uniform way without any difference of opinion or of interpretations. In the meantime in case of differences of interpretations and also until they (the proposed doctrines and principles) can be worked out and codified for the common use of every government. The United States Government in all of its international associations and relationships and conduct will follow scrupulously the doctrines and policies which it has pursued which are embodied in the different addresses of President Roosevelt since that time and in the recent peace address on the 15th day of December before this Conference and in the law of nations as generally recognized and accepted".
The delegates of Brazil and Peru recorded the following private vote with regard to article 11: "That they accept the doctrine in principle but that they do not consider it codifiable because there are some countries which have not yet signed the Anti-War Pact of Rio de Janeiro 4 of which this doctrine is a part and therefore it does not yet constitute positive international law suitable for codification".

Montevideo Convention’s Impact
-as a restatement of customary international law, the Montevideo Convention merely codified existing legal norms and its principles and therefore does not apply merely to the signatories, but to all subjects of international law as a whole
-Switzerland, although not a member of the European Union, adheres to the same principle, stating that "neither a political unit needs to be recognized to become a state, nor does a state have the obligation to recognize another one. At the same time, neither recognition is enough to create a state, nor does its absence abolish it."

Philippines : Archipelagic Doctrine

SPEECH OF ACTING SECRETARY OF FOREIGN AFFAIRS EDSEL T. CUSTODIO ON THE OPENING OF THE MOAC EXHIBIT ENTITLED “THE 50TH ANNIVERSARY OF THE ARCHIPELAGIC DOCTRINE” 7 MARCH 2005, DFA LOBBY

Fifty years ago, on 7 March 1955, the Philippine Permanent Mission to the United Nations in New York city formally submitted to the United Nations Secretary General, by note verbale, the Philippine assertion that: “ All waters around, between and connecting different islands belonging to the Philippine Archipelago, irrespective of their width or dimension, are necessary appurtenances of its land territory, forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines.”

This was the very first formulation of the key principle that would define the Philippines as a mid-ocean archipelagic state. Indeed, the principles contained in that note verbale would serve to this day as the bases of Philippine laws and policies and would even be later enshrined in the 1973 and 1987 Philippine Constitution.(end of quote)__________________________________________________

The archipelagic principle is a fundamental pillar of the Philippine concept of national territory :

The guiding principle for resolving the issue about offshore islands is the archipelagic principle, which is enshrined in Art. 1 of the 1987 Constitution and has been one of the fundamental pillars of the Philippine concept of national territory. Since the 1950s, the Philippines has pushed this principle, which led to the so-called "Archipelagic Doctrine" in international law and has become the legal and political basis for considering our 7,107 islands as one political unit. The "Archipelagic Doctrine" is one of our most important contributions to the international legal system; without it, the widely scattered islands of our archipelago will be separated by international waters, and the Filipino nation will be deprived of the large tracts of marine resources between the islands that it has claimed since its inception.

Central to the archipelagic principle is the concept of equality between landmasses, where each island regardless of size is treated in the same manner as all others. Without such equality of treatment, small outlying islands like Tawi-Tawi and Batanes may be considered as mere territories not entitled to provincial or municipal status; at most they may be mere attachments to some province located in one of the 10 major landmasses of the country. Equally important to the archipelagic principle is the concept of unity between land and water, where the water forms the link between the disparate islands. The proper application of the doctrine demands that, as a national policy, we should treat all of our islands in the same manner, not allowing some of them to be insignificant as if they were mere parts of the water, and that we should not allow the waters to create highly fragmented political units.

Arial Domains

Article 1, Sovereignty : The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.This refers to the air space above the land and waters of the State. The Convention on International Civil Aviation, also known as the Chicago Convention, established the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations charged with coordinating and regulating international air travel. The Convention establishes rules of airspace, aircraft registration and safety, and details the rights of the signatories in relation to air travel. The Convention also exempts air fuels from tax. The document was signed on December 7, 1944 in Chicago, Illinois, by 52 signatory states. The Convention defines the supreme authority of each state to its airspace. Relevant provisions of the convention relates to such recognition and the elements of a state’s territory

Territorial Waters

Out to 12 nautical miles from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of "innocent passage" through any territorial waters, with strategic straits allowing the passage of military craft as "transit passage", in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state. Fishing, polluting, weapons practice, and spying are not “innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.Archipelagic watersThe convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline will be Archipelagic Waters and included as part of the state's internal waters.

Internal waters

Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.

THE BASELINE METHODS

Baselines are reference lines drawn by a coastal or archipelagic State using different methods as discussed below. They are used to measure the breadth of the territorial sea (12nm), contiguous zone (24 nm), EEZ (200nm) and continental shelf (up to 350nm). Also, the waters enclosed by the baselines are called archipelagic waters over which an archipelagic State exercises sovereignty.According to the UNCLOS, there are three methods that can be employed in determining a State’s baselines, namely:

1. Normal Baseline, according to Art. 5, “is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.”

2. Straight Baseline, according to Art. 7, can be employed if ever “the coastlines are indented and cut into or there is a fringe of islands along the coast in its immediate vicinity.”

3. Archipelagic Baseline, according to Art. 47, is a method of “joining the outermost points of the outermost islands and drying reefs of an archipelago provided that within such baselines are included the main island and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1:1 and 9:1.”

Of the three methods, the archipelagic baselines method is most applicable and advantageous to an archipelago such as ours. Otherwise, to use either the Normal or Straight baseline methods, which are primarily designed for coastal States, would effectively waive our status as an archipelagic State and lose much of the archipelagic waters as defined above.

Treaty of Paris of 1898

The Treaty of Paris
- terminated the War bet. US & Spain
- main gate opening to the broadening highway of constitutionalism
- American occupation in the Phils started with a Military Government by the US Army which also discharged a legislative function by issuing “general orders”
- With the establishment of the American military government, provost courts and military commission were created. At the same time, civil courts were created for certain civil purposes

Commissioners from the United States and Spain met in Paris on October 1, 1898 to produce a treaty that would bring an end to the war after six months of hostilities. The American peace commission consisted of William R. Day, Sen. Cushman K. Davis, Sen. William P. Frye, Sen. George Gray, and the Honorable Whitelaw Reid. The Spanish commission was headed by Don Eugenio Montero Rios, the President of the Senate. Jules Cambon, a French diplomat, also negotiated on Spain's behalf. The American commissioners negotiated in a hostile atmosphere because all Europe, except England, was sympathetic to the Spanish side.
Although the Conference discussed Cuba and debt questions, the major conflict concerned the situation of the Philippines. Admiral Dewey's victory had come as a great surprise and it marked the entrance of the United States into the Pacific. Spanish commissioners argued that Manila had surrendered after the armistice and therefore the Philippines could not be demanded as a war conquest, but they eventually yielded because they had no other choice, and the U.S. ultimately paid Spain 20 million dollars for possession of the Philippines. The islands of Puerto Rico and Guam were also placed under American control, and Spain relinquished its claim to Cuba. The treaty was signed on December 10, 1898.