Obstacles To Bringing The Maguindanao Massacre Case Before The ICC PDF

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OBSTACLES TO BRINGING
THE MAGUINDANAO MASSACRE CASE
BEFORE THE INTERNATIONAL CRIMINAL COURT*
Karen Torres-
Introduction
Much fertile discussion has developed concerning the

prospect of bringing the Maguindanao Massacre case
before the International Criminal Court. The legal
discourse is multifaceted, revolving around not only the
jurisdiction of the ICC over the case, but also the
mechanism by which its jurisdiction shall be triggered.
Another issue is admissibility given that there are pending
proceedings before a Philippine court. Holding former
President Macapagal-Arroyo accountable for the massacre
on the ground of command responsibility likewise
deserves scrutiny. This Note explores all these issues and
shall address them accordingly.
This Student Note was submitted in compliance with the require-

ments of the Public International Law class under Dr. Diane A.
Desierto at the University of the Philippines, College of Law.
The author is a third year student at the University of the
Philippines, College of Law. She obtained her Bachelor of Science
degree in Business Administration and Accountancy, cum laude,
from the same university.
332
OBSTACLES IN BRINGING THE MAGUINDANAO MASSACRE 1333
The Philippine political scene has been far from pristine. It

has always been plagued by constant battles between
families who could afford to be in power, with occasional
personalities and characters trying to pierce through the
political bubble.
In November 2009, however, the Philippines became

witness and stage to an atrocity far from everyday
political happenings. Fifty-seven individuals were killed.
Some were slaughtered. Others were mutilated. In the
Resolution of the Department of Justice (DOJ),' probable
cause was found to hold Datu Andal U. Ampatuan, Jr.
"Unsay" ("Ampatuan") and several others for trial for
multiple counts of murder.
The Complaint-Affidavit filed by Datu Esmael "Toto"

Mangudadatu ("Mangudadatu") narrated the events
antecedent to the killing. Mangudadatu was to run as
governor for Maguindanao in the 2010 elections. He
authorized his sisters, some relatives, and their lawyers -
accompanied by several media personnel - to file his
certificate of candidacy. Before the trip, he tried to solicit
assistance and security from several law enforcement
agencies, but to no avail. The contingent was composed
mostly of women who hoped to submit Mangudadatu's
certificate of candidacy to preclude any appearance of
provocation or any untoward situation.
As events unfolded, almost all the members of the

contingent (with the exception of a single vehicle that
drove away when it sensed that something was wrong)
were killed. The Resolution noted the following
observations:
DOJ Res. No. NPS XVI-INQ-09K-00103 (November 27, 2009).

334 | ASIA PACIFIC YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
1. A government backhoe was used to dig a grave and to

fill it with earth. It was apparently intended to tighten
the fill, which caused the broken bones and crushed
bodies of some of the victims.
2. Most of the women's pants/zippers were open
showing their underwear. In fact, the female victims
showed signs of sexual abuse.
3. Some of the male victims had their hands tied behind
their backs.
4. Some victims were found piled together inside their
vehicles.
5. Some victims were lying in disarray around the area;
6. Many victims had gunshot wounds mostly on the
head. There were some victims whose internal organs
were visible.
7. A number of the victims had been unceremoniously
dumped in a pit like useless trash.
8. When dug out, some of the bodies were already cut
into several parts, with the eyes of some of the victims
gouged out, and some beheaded.
A 2010 Report by the Human Rights Watch, says,
"The Arroyo government, in exchange for political

support from the Ampatuans, tacitly permitted if not
actually facilitated the strengthening of various militia
forces, increasing the sale of military weaponry, and
ensuring impunity for rights abuses in Maguindanao.
xxx
The government's prime suspect in the Maguindanao

massacre, Andal Ampatuan, Jr., was taken into custody
three days after the killings. A government source told
Human Rights Watch that when Justice Department
officials and police arrested him, he asked, "Which hotel
will I be billeted in?" Both the massacre and the
Ampatuans' unconcerned response to it reflect a sense of
impunity doubtlessly bred from many years of
government indifference to Ampatuan atrocities. During
OBSTACLES IN BRINGING THE MAGUINDANAO MASSACRE | 335
the Arroyo administration the national government

provided unwavering support of the Ampatuans despite
reports of widespread abuses. The police that were not
beholden to the Ampatuans nonetheless showed no
willingness to investigate alleged abuses. Ultimately no
arm of the Philippine government attempted to provide a
check on the Ampatuans' power or curtail their brutality. 2
(Emphasis supplied.)
The offense is attributed to President Macapagal-Arroyo

because of her "well-known deliberate cultivation and
patronage of the Ampatuan political warlord clan and
dynasty as its main instrument for political control in
Maguindanao province, if not also the rest of the
Autonomous Region in Muslim Mindanao (ARMM)." 3
Jurisdiction of the International Criminal Court

over the Maguindanao Massacre Case
While the Maguindanao massacre may be described as

grotesque, barbaric, and atrocious in everyday parlance, it
still needs to qualify as a crime cognizable by the ICC. For
the seisin of the ICC, certain jurisdictional requirements
must be met: temporal (ratione ternporis), personal (ratione
personae), territorial (ratione loci), and subject matter
(ratione materiae). In controversy and relevant to the
discussion of ICC's jurisdiction over the Maguindanao
case are the temporal and subject matter jurisdictional
requirements, which shall be discussed in seriatim.
2 HUMAN RIGHTs WATCH, "THEY OWN THE PEOPLE": THE AMPATUANS,
STATE-BACKED MILITIAS, AND KILLINGS IN THE SOUTHERN PHILIPPINES

68-9 (2010).
3 Soliman M. Santos, Jr., The Maguindanao Massacre, the Bangsamoro
Problem and the Peace Process, PCIJ (November 30, 2009), <http://pcij.
org/stories/ the-maguindanao-massacre-the-bangsamoro-problem-
and-the-peace-process/>.
JurisdictionRatione Temporae
For States becoming parties to the Rome Statute after its

entry into force, "the Court may exercise its jurisdiction
only with respect to crimes committed after the entry into
force of this Statute for that State, unless that State has
made a declaration under article 12, paragraph 3."4 This
may be parsed into two parts. First, as a general rule, "the
Court may exercise its jurisdiction only with respect to
crimes committed after the entry into force of this Statute
for that State." Second, as an exception, non-States Parties
may make a declaration lodged with the Registrar
accepting the exercise of jurisdiction by the Court with
respect to the crime in question.
The temporal element is significant. Article 24 of the

Statute provides that "No person shall be criminally
responsible under this Statute for conduct prior to the
entry into force of the Statute." The non-retroactivity of
the temporal jurisdiction of the ICC should not be
confused, however, with the general principle of criminal
law of nullum crimen sine lege. The latter forbids the
prosecution of crimes not recognized as such at the time
they were committed. Under Article 22(1) of the Statute,
"A person shall not be criminally responsible under this
Statute unless the conduct in question constitutes, at the
time it takes place, a crime within the jurisdiction of the
Court." The Statute provides for non-retroactivity as "few
States -even those who were the Court's most fervent
advocates-would have been prepared to recognize a
4 Rome Statute of the International Criminal Court, art. 11(2), July 17,
1998, 2187 UNTS 90.
court with such an ambit."5 But this does not mean that
those responsible for atrocities committed prior to the
entry of the Statute are immune from criminal liability.
They shall be held accountable under national laws and
should be punished by national courts. Also, for most of
the crimes provided for in the Rome Statute, an increasing
number of States now provide for universal jurisdiction
over such offenses. 6
The Statute takes effect on the sixtieth day following the

deposit of the instrument of ratification, which for the
Philippines was on October 30, 2011. Hence, the ICC
cannot prosecute any case for the period between July 1,
2002 (entry into force of the Rome Statute) and October 30,
2011 (entry into force of the Rome Statute for the
Philippines). Given the foregoing, under the general rule,
the ICC cannot exercise jurisdiction over the
Maguindanao case. Any action should be tried and
decided in the national courts.
The only way then that the jurisdiction of the ICC can be
seized is if there is a possibility of making a declaration
accepting the exercise of jurisdiction by the Court with
respect to a crime that took place before the Philippines
became a Party to the Statute;7 and such declaration is
acted upon by the Prosecutor.
According to Professor William A. Schabas, "there is an

exception to the general rule on the temporal application
of the Statute, because it is possible for a State to make an
WILLIAM SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL

CRIMINAL COuRT 68 (2007).
6 Id.
7 Rome Statute, art. 12(3).
ad hoc declaration recognizing the Court's jurisdiction

over specific crimes, even if the State is not a party to the
Statute." Further, he says "Such declarations, formulated
in accordance with Article 12 (3) of the Statute, would
appear to be retroactive by their very nature."8 lain
Cameron agrees with Schabas that there is an exception to
the non-retroactivity of the Statute where a new State has
made a declaration under Article 12(3).9 He notes though
that this provision "is designed for new governments
which have overthrown a tyrannical regime." 0
To date, two declarations have been lodged with the

Registrar accepting the exercise of the jurisdiction of the
Court pursuant to Article 12(3).11 Lodging of such a
8 SCHABAS,supra note 5, at 67.

9 lain Cameron, Jurisdiction and Admissibility Issues under the ICC
Statute, in
THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL
AND POLICY IssuEs 70 (Dominic McGoldrick, Peter Rowe and Eric
Donnelly, eds., 2004).
10 lainCameron further notes that "The exception is interesting from a
constitutional perspective, as it can involve a government by-
passing constitutional restrictions on transfer of power to
international bodies (something which will presumably usually
require the consent of the legislature)."
11On 1 October 2003, Ivory Coast lodged, via a note verbale, a
declaration dated 18 April 2003, accepting the exercise of the
jurisdiction of the Court under Article 12, paragraph 3 with respect
to alleged crimes committed from 19 September 2002. The Registrar,
Mr. Bruno Cathala, acknowledged receipt of the declaration on 31
October 2003. On 14 December 2010, by way of a letter addressed to
the President and the Registrar of the International Criminal Court,
Mr. Allassane Ouattara indicated that he confirmed the declaration
accepting the exercise of jurisdiction by the Court lodged on 18 April
2003 (letters addressed to the President and the Registrar of the ICC).
The Registrar, Ms. Silvana Arbia, acknowledged receipt of the
declaration on 20 January 2011.
On 22 January 2009, the Palestinian National Authority lodged a
declaration by hand recognizing the jurisdiction of the Court under
declaration does not mean that the Prosecutor will open

investigations. Article 12(3) declarations relate only to the
scope of the Court's jurisdiction. They do not trigger any
investigation.12 The first declaration, made by the Ivory
Coast, is still in the pre-trial stage. As to the second
declaration, which was made by the Palestinian National
Authority, no formal investigation has been initiated. The
latter declaration was received by the Registrar "without
prejudice to a judicial determination on the applicability
of Article 12, paragraph 3."13 The contention with respect
article 12, paragraph 3 with respect to acts committed on the

territory of Palestine since 1 July 2002. Due to the uncertainties
within the international community as to the existence or non-
existence of a State of Palestine, the Registrar, Ms. Silvana Arbia,
acknowledged receipt of the declaration on 23 January 2009
"without prejudice to a judicial determination on the applicability of
Article 12, paragraph 3" to the declaration. See <http://www.icc-
cpi.int/Menus/ICC/Structure+of+the+Court/Registry/Declaration
s.htm>.
12 An investigation can only be opened following referral of a situation
to the Prosecutor by a State Party to the Rome Statute, referral of a

situation to the Prosecutor by the United Nations Security Council,
or authorization by a Pre-Trial Chamber of three judges to the
Prosecutor to open an investigation. An investigation can only be
opened following referral of a situation to the Prosecutor by a State
Party to the Rome Statute, referral of a situation to the Prosecutor by
the United Nations Security Council, or authorization by a Pre-Trial
Chamber of three judges to the Prosecutor to open an investigation.
See <http://www.icc-cpi.int/NR/rdonlyres/74EEE201-FED-4481-95
D4C8071087102C/279787/QARegistryArticlel4.pdf>.
13 See Silvana Arbia, Letter of the International Criminal Court
Registrar to the Palestinian National Authority (January 23, 2009),
<http://www.icc-cpi.int/NR/rdonlyres/74EEE201-FED-4481-95D4-C
8071087102C/279778/20090123404SALASS2.pdf>. See also International
Criminal Court, Questions and Answers, <http://www.icc-cpi.int/
NR/rdonlyres/74EEE201-OFED-4481-95D4-C8071087102C/279787/
QARegistryArticlel4.pdf> (clarifying the applicability of art. 12(3) of
the Rome Statute).
to the declaration made by the Palestinian National

Authority is whether in the first place it may properly be
considered as a "State."14
As it stands, Article 12(3) has yet to be applied by the ICC.

That the exception in Article 11(2) in relation to Article
12(3) was designed for new governments that desire to
make accountable the perpetrators of crimes committed
by the predecessor regime cannot apply to the
Maguindanao case. Isolating the issue of temporal
jurisdiction, the ICC cannot therefore be seised to hear the
Maguindanao case that took place before the Statute
entered into force with respect to the Philippines.
JurisdictionRatione Materiae
President Macapagal-Arroyo is quoted as condemning the

atrocity as a "supreme act of inhumanity that is a blight on
our nation."15 Further, her statement reads,
"The gruesome killings in Maguindanao constitute a most

heinous crime. What makes it particularly so is the fact that
it counts among its victims, lawyers, media reporters, and
other defenseless and innocent civilians. Like many others,
14Gr6gor Puppinck, Legal Memorandum in Opposition to the

Palestinian Authority's January 2009 Attempt to Accede to ICC
Jurisdiction over Alleged Acts Committed on Palestinian Territory
Since 1 July 2002 (September 9, 2009), <http://www.icc-cpi.int/NR/
rdonlyres/553F5F08-2A84-43E9-8197-6211B5636FEA/281869/OTP
legalmemoranduml.pdf>.
15Charlene Cayabyab, Christian Esguerra, and Agence France-Presse,
Arroyo declares day of mourning for 57 victims, Phil. Daily Inquirer,
Novembr 26, 2009, <http://newsinfo.inquirer.net/inquirerhead
lines/ration/view/20091126-238427/Arroyo-declares-day-of-mour
ning-for-57-victims>.
I am appalled and outraged by it, and I join the rising

chorus of indignation against it."16
The United Nations Secretary General issued a statement

expressing his sadness on reports of the brutal killing of
more than fifty civilians in Maguindanao province,
Southern Philippines and condemned this heinous crime
committed in the context of a local election campaign.
Then outgoing US Ambassador Kristie Kenney said "such
barbaric acts violate the most fundamental principles of
human rights and democracy. "17
The question remains, however, whether the factual

circumstances of the Maguindanao case are sufficient for it
to constitute a crime against humanity, as provided in the
Statute. Under Article 7 of the Statute, a "crime against
humanity" means any of the enumerated acts committed
as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack.
For the purposes of this Note, the Maguindanao case

would be tested against the elements of the crime against
humanity of murder. Compared to the other unlawful acts
listed in Article 7(1), murder has the simplest of elements;
hence, it may be considered as the most susceptible to
liberal interpretation. Under the Elements of Crimes, the
crime against humanity of murder has the following
elements:
1. The perpetrator killed one or more persons.
16 Id.
17 Pia Lee-Brago, UN, EU, US condemn Maguindainao massacre, The Phil.
Star, November 26, 2009, <http://www.philstar.com/article.aspx?
articleid=526825&publicationsubcategoryid=63>.
2. The conduct was committed as part of a widespread or

systematic attack directed against a civilian
population.
3. The perpetrator knew that the conduct was part of or
intended the conduct to be part of a widespread or
systematic attack against a civilian population.18
Initially, the drafters proposed the attack to be both

widespread and systematic. The use of the conjunction or
seems to broaden the scope of the crime, but in effect it
really does not. Article 7(2) defines "attack directed
against any civilian population" as a course of conduct
involving the multiple commission of acts... against any
civilian population, pursuant to or in furtherance of a State or
organizationalpolicy to commit such attack. The term attack
then has both widespread and systematic aspects. Further,
it is essential that the attack be directed against the civilian
population. This distinguishes the crime from many war
crimes, the targets of which may be combatants or
civilians.
The commentaries on the draft Statute 9 provide that

crimes against humanity encompass inhumane acts of a
very serious character involving widespread or systematic
violations aimed at the civilian population in whole or in
part. The clause directed against any civilian population
should be taken to refer to acts committed as part of a
widespread and systematic attack against a civilian
population on national, political, ethnic, racial, or religious
grounds. It should be understood to mean a course of
conduct involving the multiple commissions of acts
referred to in Article 7(1).
18 INTERNATIONAL CRIMINAL COURT, ELEMENTS OF CRIMES 5 (2011).

19
REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS
FORTY-SIXTH SESSION 40 (1994).
It is also required that the attack be carried out "pursuant

to or in furtherance of a State or organizational policy."
This enlarges the scope as to include non-State actors as
perpetrators. The "policy to commit such an attack"
requires that the State or organization actively promote or
encourage the attack. Such a policy may, in exceptional
circumstances, be implemented by a deliberate failure to
take action, that is consciously aimed at encouraging the
attack. The existence of such policy cannot be inferred
solely from the absence of governmental or organization
action.20
The perpetrators of the crime must also have "knowledge

of the attack." This requirement should not be interpreted
as requiring proof that the perpetrator had knowledge of
all characteristics of the attack or the precise details of the
plan or policy of the State or organization. 21 "An indivi-
dual who participates in crimes against humanity but who
is unaware that they are part of a widespread or
systematic attack on civilian population may be guilty of
murder... but cannot be convicted by the ICC for crimes
against humanity."2
Applying the abovementioned elements, the Maguin-

danao Massacre case may not properly be considered a
crime against humanity of murder. The only element
satisfied is the killing of one or more people. The factual
circumstances, however, fail to establish that the conduct
was committed as part of a widespread or systematic
attack. It was rather isolated and targeted. Though it
involved the killing of more than fifty individuals, the
20 ICC, supra note 18, at 5, fn. 6.

21
Id., at 5, 12.
22 SCHABAS, supra note 5, at 104.
scale is not as important as the existence of a policy and

those actuations pursuant to that policy being widespread
and systematic. The scale is but a reflection of the potential
policy behind the conduct, but in itself does not make the
murder of fifty-seven individuals a crime against
humanity.
Gravity is not a numbers game. Schabas notes that to use a

purely quantitative test "to assess 'gravity' for the
purpose of determining prosecutorial priorities seems
questionable. Many other factors other than the sheer
number of victims should be relevant in assessment." 23
Hence, given the foregoing, the Maguindanao case may
not be considered a crime against humanity cognizable by
the ICC. It is submitted, though, that the gravity of the
case and the interests of justice are not matters of
jurisdiction. Rather, they are matters of admissibility.
Issues of Admissibility
Jurisdiction refers to the legal parameters of the ICC's

operations. 24 The question of inadmissibility, on the other
hand, concerns whether matters over which the ICC
properly has jurisdiction should be litigated before it.25
Whereas jurisdiction is strictly to be determined by the
Statute, admissibility affords a certain degree of
discretion, as will be further discussed. The ICC takes the
position that there are two components to the
determination of admissibility: (1) assessment of the
national justice system to see whether it has "remained
inactive" or is "unwilling or unable" to investigate and
2 Id., at 190.
24
Id., at 173.
2 Id.
OBSTACLES IN BRINGING THE MAGUINDANAO MASSACRE |345
prosecute; and (2) the issue of complementarity, which

deals with the gravity threshold. 26
The principle of complementarity is one of the

cornerstones of the Rome Statute. 27 The Preamble of the
Rome Statute, as embodied in Article 1, emphasizes that
the ICC "shall be complementary to national criminal
jurisdictions." Under the principle of complementarity, the
ICC may only proceed when the State responsible for the
prosecution can be shown to be "unwilling or unable" to
proceed. The underlying premise of the Rome Statute is
that, when national justice systems fail, the ICC steps in,
as a last resort, so to speak. 28
Prosecutor Luis Moreno-Ocampo, referring to the concept

of complementarity with national justice systems, said
that he would encourage States to initiate their own
proceedings before national judicial institution. Thus:
"As a general rule, the policy of the Office of the Prosecutor

will be to undertake investigations only where there is a
clear case of failure to act by the State or States
concerned... The principle of complementarity represents
the express will of States Parties to create an institution
that is global in scope while recognizing primary
responsibility of States themselves to exercise criminal
jurisdiction. The principle is also based on considerations
26Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-8, Decision on the

Prosecutor's Application for a Warrant of Arrest, 29 (February 10,
2006).
27Gilbert Bitti & Mohamed M. El Zeidy, The Katanga Trial Chamber
Decision: Selected Issues, 23 LEIDEN J. INT'L L. 319 (2010).
of efficiency and effectiveness since States will generally

have the best access to evidence and witnesses." 29
Further, the "system of complementarity is principally

based on the recognition that the exercise of national
criminal jurisdiction is not only a right but also a duty of
the States."30
In a Report of the International Criminal Commission, it

spoke to the issue of complementarity that:
"The normal and ideal response to atrocities is to bring the

alleged perpetrators to justice in the Courts of the States
where the crimes were perpetrated, or of the State of
nationality of the alleged perpetrators... However, the very
nature of most international crime implies, as a general
rule, that they are committed by State officials or with their
complicity; often their prosecution is therefore better left to
other mechanisms."3 1
As such, the unwillingness and inability to hear a case and

to prosecute is, in large part, determined by the
involvement of those who are in power (and has control
over the national justice system) to the crimes alleged to
be committed and their consequent disinterest in serving
justice.
Article 17 of the Statute states that "the Court shall

determine that a case is inadmissible where: (a) The case is
being investigated or prosecuted by a State which has
29 Draft Paper on Some Policy Issues before the Office of the

Prosecutor, for Discussion at the Public Hearing in The Hague on 17
and 18 June 2003, at 5.
3o SCHABAS, supra note 5, at 174.
31 Report of the International Commission of Inquiry on Violations of
International Humanitarian Law and Human Rights Law in Darfur,
UN Doc. S/2005/60, 568.
jurisdiction over it, unless the State is unwilling or unable

genuinely to carry out the investigation or prosecution. To
determine unwillingness in a particular case, the Court
shall consider whether one or more of the following exist,
as applicable:
a) The proceedings were or are being undertaken or the

national decision was made for the purpose of
shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the
Court referred to in article 5;
b) There has been an unjustified delay in the
proceedings which in the circumstances is inconsistent
with an intent to bring the person concerned to justice;
c) The proceedings were not or are not being conducted
independently or impartially, and they were or are
being conducted in a manner which, in the
circumstances, is inconsistent with an intent to bring
the person concerned to justice. (Emphasis supplied.)
To determine inability in a particular case, the Court shall

consider whether, due to a total or substantial collapse or
unavailability of its national judicial system, the State is
unable to obtain the accused or the necessary evidence
and testimony or otherwise unable to carry out its
proceedings. 32
The issue of unwillingness arises where the national

justice system is merely "going through the motions" in
order to make it appear that there is proper investigation
and prosecution. 33 The issue on inability comes into play
when a State cannot obtain the accused or the necessary
32 Rome Statute, art. 17, 3.

evidence and testimony, or is otherwise unable to carry

out its proceedings.34
Article 17 also provides for a gravity threshold, which is

taken into account in the pre-investigation and
investigation conducted by the Prosecutor. Article 53
provides that the Prosecutor, in initiating an investigation,
should determine if there exists reasonable basis to
proceed with the investigation and that "taking into
account the gravity of the crime and the interests of the
victims, there are nonetheless substantial reasons to
believe that an investigation would not serve the interests
of justice." Moreover, the Prosecutor may conclude that
there is no sufficient basis for prosecution because "A
prosecution is not in the interests of justice, taking into
account all the circumstances, including the gravity of the
crime..."
The Office of the Prosecutor, in the "Prosecutorial

Strategy" published in September 2006, reiterated its
policy of:
"...focusing its efforts on the most serious crimes and those

who bear the greatest responsibility for these crimes...
When the Court does not deal with a particular person, it
does not mean that impunity is thereby granted - the
Court is complementary to national efforts, and national
measures against other offenders should be encouraged.
The Office also adopted a 'sequenced' approach to
selection, whereby cases inside the situation are selected
according to their gravity. Although any crime falling
within the jurisdiction of the Court is a serious matter, the
Statute clearly foresees and requires an additional
3 Id., at 190, citing John T. Holmes, The Principle of Complementarity, in

THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME
STATUTE 41-78 (Rory S. Lee, ed., 1999).
consideration or 'gravity' whereby the Office must

determine that a case is of sufficient gravity to justify
further action by the Court. In view of the Office, factors
relevant in assessing gravity include: the scale of the
crimes; the nature of the crimes; the manner of commission
of the crimes; and the impact of the crimes..." (Emphasis
supplied.)
Restrictions on the resources of the ICC are another factor

in accepting cases for trial. Schabas notes that "The Court
has already laid great emphasis on the gravity threshold
in Article 17(1)(d), in effect insisting that its precious
resources are inadequate to address even the three core
crimes listed in Articles 6, 7, and 8... States should
appreciate that, even if such categories of crime were to be
included in the subject-matter jurisdiction, there would
almost certainly be no prosecutions because they would
fail the gravity test, when set alongside the most egregious
crimes of genocide, crimes against humanity and war
crimes." 3 The Prosecutor noted that this assessment is of
necessity "as the Court is faced with multiple situations
involving hundreds or thousands of crimes and must
select situations in accordance with Article 53 criteria." 36
In Lubanga,37 the Pre-Trial Chamber held that the gravity

threshold is mandatory requisite for admissibility. It
explained the concept of gravity as:
35 Id., at 90.
36 Id., at 8, citing Letter or Prosecutor dated 9 February 2006 (Iraq).
37
M. Lubanga is allegedly responsible, as co-perpetrator, of war crimes
consisting of (1) Enlisting and conscripting of children under the age
of 15 years into the Forces patriotiques pour la libiration du Congo
[Patriotic Forces for the Liberation of Congo] (FPLC) and using them
to participate actively in hostilities in the context of an international
armed conflict from early September 2002 to 2 June 2003 (punishable
under Article 8(2)(b)(xxvi) of the Rome Statute); and (2) Enlisting
"The Chamber holds that the following two features must

be considered. First, the conduct which is the subject of a
case must be either systematic (pattern of incidents) or
large-scale. If isolated instances of criminal activity were
sufficient, there would be no need to establish an
additional gravity threshold beyond the gravity-driven
selection of the crimes (which are defined by both
contextual and specific elements) included within the
material jurisdiction of the Court. Second, in assessing the
gravity of the relevant conduct, due consideration must be
given to the social alarm such conduct may have caused in
the international community."3 8
The Pre-Trial Chamber, in the same case held, that the

gravity threshold was intended to ensure that the ICC
pursues only cases only against "the most senior leaders"
in any given situation under investigation.
Considering the foregoing, the criteria for admissibility of

the Maguindanao case are as follows: (1) whether or not
the national justice system is unwilling or unable
genuinely to carry out the investigation or prosecution; (2)
whether or not the case is of sufficient gravity to justify
action by the Court; and (3) whether or not it is in the
"interests of justice" that the ICC take cognizance of the
Maguindanao situation.
Unwillingness orInability
Early on, the venue for the trial of the cases on the
Maguindanao massacre was transferred to a different
and conscripting children under the age of 15 years into the FPLC
and using them to participate actively in hostilities in the context of
an armed conflict not of an international character from 2 June 2003
to 13 August 2003 (punishable under Article 8(2)(e)(vii) of the Rome
Statute).
* Prosecutorv. Lubanga, supranote 26, 46.
court branch despite the rule that under Philippine

criminal procedure, venue is jurisdictional. 39 In a
Resolution, the Supreme Court ordered the transfer of trial
venue from Cotabato City to Quezon City. 40 Cases for
multiple counts of murder are pending before Branch 221
of the Regional Trial Court, which has been designated as
a special court that would hear only the Maguindanao
case.41 The Supreme Court resolved that the "Regional
Trial Court Branch 221 of Quezon City is granted full
authority to resolve any matter and issue which may arise
from the said cases, including issues cognizable by other
special courts without need of further designation by this
Court." As of writing, the case has been pending for a year
and a half. The trial is taking time since both the
prosecutor and the defense had listed over 200
witnesses. 42 Clearly, there is neither unwillingness nor
inability of the national justice system to hear and
prosecute the Maguindanao massacre case. Serious efforts
are undertaken to expedite the process. And with the
whole nation at the edge of their seats and the media
closely guarding the proceedings, there is much
disincentive for the national justice system to "remain
inactive" or "unwilling or unable."
3 Gancherov. Bellosillo, 28 SCRA 673, 676 (Phil., 1969).

40 A.M. No. 09-12-507-RTC (December 8, 2009).
41 Phil. Supreme Court Resolution dated June 28, 2011 provided that
.".. the Regional Trial Court, Branch 221 is designated as a special
court to hear and decide criminal cases nos. Q-09-1621148-72, Q-09-
162216-31, Q-10-162652-66, and Q-10-163766 (commonly entitled
People v. Datu Andal Ampatuan Jr., et al) and exempted from the raffle
or assignment of new cases until the presiding judge decides the
aforementioned cases or upon further orders from this Court..."
4 Julie Aurelio & Tetch Torres, Special Court Seen to Expedite
Maguindanao Massacre Trial, Phil. Daily Inquirer, July 2, 2011,
<http://newsinfo.inquirer.net/20660/special-court-seen-to-expedite-
maguindanao-massacre-trial>.
Gravity Threshold
Cases pending before the ICC, to date, include the

situations in Democratic Republic of Congo, Central
African Republic, Uganda, Darfur (Sudan), and Republic
of Kenya. A survey of the cases that stemmed from the
situations will give perspective of what may be the
threshold of gravity for admissibility.
Situation in DemocraticRepublic of Congo. In the case against

Lubanga, he is accused of enlisting and conscripting of
children under the age of 15 years into the Forces
patriotiques pour la lib6ration du Congo [Patriotic Forces
for the Liberation of Congo] (FPLC) and using them to
participate actively in hostilities in the context of an
international armed conflict. In the case of against Katanga
and Chui, they are accused of committing war crimes and
crimes against humanity, as follows: War crimes: (1) using
children under the age of 15 to take active part in the
hostilities, under Article 8(2)(b)(xxvi) of the Statute; (2)
directing an attack against a civilian population as such or
against individual civilians not taking direct part in
hostilities under Article 8(2)(b)(i) of the Statute; (3) willful
killings under Article 8(2)(a)(i) of the Statute; (4)
destruction of property under Article 8(2)(b)(xiii) of the
Statute; (5) pillaging under Article 8(2)(b)(xvi) of the
Statute; (6) sexual slavery under Article 8(2)(b)(xxii) of the
Statute; and (7) rape under Article 8(2)(b)(xxii) of the
Statute. Crimes against humanity charged against them
are: (1) murder under Article 7(1)(a) of the Statute; (2) rape
under Article 7 (1)(g) of the Statute; and (3) sexual slavery
under Article 7(1)(g) of the Statute. In the case against
Mbarushimana, he is allegedly criminally responsible for:
five (5) counts of crimes against humanity: murder, torture,
rape, inhumane acts, and persecution; and six (6) counts of
war crimes: attacks against the civilian population,
destruction of property, murder, torture, rape, and
inhuman treatment.
OBSTACLES IN BRINGING THE MAGUINDANAO MASSACRE |353
Situation in Central African Republic. A case against Bemba

alleges that he is responsible, as military commander, of:
two (2) counts of crimes against humanity: murder (Article
7(1)(a) of the Statute) and rape (Article 7(1)(g) of the
Statute); and three (3) counts of war crime: murder (Article
8(2)(c)(i) of the Statute); rape (Article 8(2)(e)(vi) of the
Statute); and pillaging (Article 8(2)(e)(v) of the Statute).
Situation in Darfur, Sudan. The warrants of arrest for Al

Bashir list 10 counts on the basis of his individual criminal
responsibility under Article 25(3)(a) of the Rome Statute as
an indirect (co)perpetrator including-five counts of
crimes against humanity: murder -Article 7(1)(a); extermi-
nation-Article 7(1)(b); forcible transfer-Article 7(1)(d);
torture-Article 7(1)(f); and rape-Article 7(1)(g); two
counts of war crimes -intentionally directing attacks
against a civilian population as such or against individual
civilians not taking part in hostilities -Article 8(2)(e)(i);
and pillaging-Article 8(2)(e)(v); three counts of genocide -
genocide by killing (Article 6-a), genocide by causing
serious bodily or mental harm (Article 6-b) and genocide
by deliberately inflicting on each target group conditions
of life calculated to bring about the group's physical
destruction (Article 6-c).
Situation in Republic of Kenya. In the case against Ruto,

Kosgey and Sang, the three are accused of the commission of
the following crimes against humanity: murder (Article
7(l)(a)); forcible transfer of population (Article 7(l)(d)); and
persecution (Article 7(l)(h)). In the case against Muthaura,
Kenyatta and Ali, they are charged for the commission of
the following crimes against humanity: murder (Articles
7(l)(a)); forcible transfer (Article 7(l)(d)); rape (Article
7(l)(g)); persecution (Article 7(1)(h)); and other inhumane
acts (Articles 7(1)(k)).
The Prosecutor initially investigates situations referred to

him and not specific complaints or crimes. In comparison
with the Maguindanao situation, the abovementioned
cases (1) are of far greater concern to the international

community, (2) were perpetrated on a massive scale and
pursuant to a plan or policy, and (3) have been going on
for a significant period of time. For example, the situation
in the Democratic Republic of Congo dates back to the
early 1990s, particularly in the aftermath of the Rwandan
genocide, when both perpetrators and victims fled into
eastern Congo. The conflict has been fuelled in part by the
illegal exploitation of mineral wealth; the weak state
authority across large parts of the east; and armed groups
taking advantage of this vacuum. With porous borders,
weapons flow into the country with ease. 43 The situation
in Darfur, Sudan was referred to by the UN Security
Council upon finding that the situation in Sudan
continues to constitute a threat to international peace and
security.44 Prosecutor Luis Moreno- Ocampo, before the
UN Security Council, relayed that:
"The entire Darfur region is a crime scene. For five years,

civilians have been attacked relentlessly, in their villages,
then into the camps. They cannot return. Their land has
been usurped. To plan and commit such crimes, on such a
scale, over such a period of time, the criminals had to
mobilize and coordinate the whole state apparatus, from
the security services to the public information
bureaucracies and the judiciary. Cover up of crimes by
Sudanese officials, pretending that all is well in Darfur,
blaming crimes on others, is a characteristic of the criminal
system at work. We have seen it before, in Rwanda, in the
former Yugoslavia, in my own country Argentina during
the military dictatorship."
43 Oxfam, Conflict in D.R. Congo: An Unimaginable Situation, <http://

www.oxfam.org.uk/oxfamjin-action/emergencies/drc.html#>.
4 Resolution 1593 (2005), adopted by the Security Council at its 518th
meeting on March 31, 2005.
OBSTACLES IN BRINGING THE MAGUINDANAO MASSACRE I 355
Juxtaposing the surveyed situations to the situation in
Maguindanao raises serious doubt whether the massacre
in Mindanao is of sufficient gravity, quantitatively and
qualitatively. Given the limited resources of the ICC and
the number of situations referred to it, it is highly unlikely
that the Prosecutor would initiate an investigation.
Interests of Justice
Matthew Brubacher has written that the phrase "in the

interests of justice" also requires the Prosecutor to take
account of the broader interests of the international
community, including the potential political ramifications
of investigation on the political environment of the State
over which he is exercising jurisdiction. 45 Schabas gives
the example of the Prosecutor declining to proceed in
politically delicate situations, for example, in the context
of peace negotiations. There is, however, little unanimity
among experts and practitioners as what would constitute
"interests of justice." It is thus impossible to ascertain the
individual choices that the Prosecutor might make "in the
interests of justice." 46
The Maguindanao case, may have sparked the interests of

the international community (as foreign governments
have issued statements condemning the crimes), yet the
interest is not of such magnitude as to be considered a
great disservice to the interests of justice if the ICC refuses
to exercise its jurisdiction over the case. It is submitted
that the interests of justice would be better served if the
gears of the national justice system keep their momentum.
4 Matthew Brubacher, Prosecutorial Discretion within the International

Criminal Court, 2 J. INT'L CRIM. JusT. 71 (2004).
It is of national interest that there be fidelity in the

national courts' performance of its constitutional mandate
of dispensing justice.
Triggering the Jurisdiction of the ICC
Assuming that the subject-matter and temporal

jurisdictional requirements are met, triggering the
jurisdiction of the ICC is another matter. Article 13 of the
Statute provides that the ICC may exercise its jurisdiction
if:
a) A situation in which one or more of such crimes

appears to have been committed is referred to the
Prosecutor by a State Party in accordance with article
14;
b) 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; or
c) The Prosecutor has initiated an investigation in respect
of such a crime in accordance with article 15.
For purposes of this Note, it shall be explored whether the

present Philippine government may refer the
Maguindanao situation to the Prosecutor. Article 14
provides that "A State may refer to the Prosecutor a
situation in which one or more crimes within the
jurisdiction of the Court appear to have been committed
requesting the Prosecutor to investigate the situation for
the purpose of determining whether one or more specific
persons should be charged with the commission of such
crimes."
This process of State referral was envisioned by the

drafters to be the means of filing inter-State complaints.
Historically, States have been notoriously reluctant to
complain against other States in a bilateral basis unless
they had vital interests at stake.47 It was thus completely
unexpected that the first situations referred to the ICC
were through this referral mechanism; and even more
astonishing for international lawyers that the States
referred situations that were taking place within their
borders. The first referral was made in late 2003 by
Uganda, a few months later in March 2004 by the
Democratic Republic of Congo. Both were referrals by the
countries concerned. This became known as "self-
referrals" or "auto-referrals." The Statute does not
expressly provide for such a possibility nor does it
expressly exclude it. Subsequent to the initial referrals,
much has been written (as will be outlined) about the legal
implications of self- referrals, few of these questions have
actually arisen in the practice of the Court. 48
This practice has been criticized as in "invention of the

Office of the Prosecutor" and that it was not contemplated
by the drafters of the Statute. Paola Gaeta theorizes that a
better explanation for the allowance of self-referrals was
that the Prosecutor has a political motive. She proceeds
that:
"It is well known that the Court was begotten by many, but
born against the will of some powerful countries. At the
Rome Conference, many of these countries strongly
opposed giving the Prosecutor power to initiate an
investigation proprio motu. It is possible that the
Prosecutor's action is aimed at reassuring opponents of the
Court who fear that he may wield his investigative powers
47 Id.,
at 143.
4 Volker Nerlich, The International Criminal Court 2002-2010: A View
from the Inside, 22 CRIM. L.F.199 (2011).
358 I ASIA PACIFIC YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
too boldly: the Prosecutor could have started the

investigation in the DRC on his own initiative, but he
pushed for, and gained, a self-referral."49
Schabas agrees with Gaeta. He comments that the self-

referral made by Uganda:
"...cannot have been spontaneous and unexpected

development that emerged as a result of creative thinking
by international lawyers within the Ugandan Foreign
Ministry... To the extent the Prosecutor believed his
strategy, he surely had to reassure States that those who
referred the case were not threatened. Indeed, if he intends
for the strategy to continue, and to solicit more self-
referrals, he needs to convince the referring States that
their leaders are not in his sights."
Schabas objects that such referrals flow "from the creative

interpretation of Article 14 of the Rome Statute that was
not seriously contemplated by the 1998 Diplomatic
conference and during the prior negotiations." Schabas
looks into the travaux pr6paratoiresand refers to the 1994
draft statute submitted to the General Assembly by the
International Law Commission wherein the State Party
making a referral was referred to as a "complainant State."
He argues that the language of the draft makes it clear that
what was contemplated was a "complainant state"
lodging a complaint against another State,5 0 and not a
State Party referring situations within its own jurisdiction.
The change in terminology from complaint to referral of a
situation, Schabas argues, was "probably related to the fact
that a complainant State was being prevented from
submitting a specific case or crime to the ICC. It could
49Paola Gaeta, Is the Practice of "Self-Referrals" a Sound Startfor the ICC?

2 J.INT'L CRIM. JUsT. 949 (2004).
only refer a situation... There is no trace in the travaux

prdparatoires or in the various commentaries by
participants in the drafting process to suggest that a State
referring a case against itself was ever contemplated by this
change in terminology."
The same arguments against self-referrals are echoed by

Mahnough Arsanjani and W. Michael Reisman. They
assert that "before and during the Rome negotiations, no
one... assumed that governments would want to invite
the future Court to investigate and prosecute crimes that
occurred in their territory," and that there is "no indication
that the drafters ever contemplated such referrals."5 They
also argue that "such a referral does not seem to meet the
requirement of admissibility;" that a system of such
referral "could open the way to... selective externalization
of difficult cases;" and that ultimately the "innovative
allowance of voluntary referral in future cases may take
the ICC into areas where the drafters of the Rome Statute
had not wished to tread." Subsequent literature by
Andreas Muller and Ignaz Stegmiller reiterate that such
referrals were "not foreseen by the delegates at Rome."
Criticisms of the practice of self-referrals may be grouped

as follows: (1) Asymmetric or selective referrals; and (2)
Incompatibility with the complementarity regime.
Asymmetric or Selective Referrals
Gaeta points out that "By requesting ICC intervention,

that State could be using the Court as a political weapon
in the hope that its intervention could assist it in achieving
51 Mahnoush H. Arsanjani & W. Michael Reisman, Law-in-Action of the

InternationalCriminalCourt, 99 AM. J.INT'L L. 385 (2005).
its domestic political and military aims." Schabas notes

that "when a State is actively engaged in the initiation
process, there is potential for manipulation. In effect, the
State quite predictably uses international institution to
pursue its enemies... self-referral, far from being an
expedient to provide a fledgling institution with some
cases, is actually a trap. If a State refers a situation against
itself, that is, against its rebels, it is doing so with a result
in mind." Similarly, Arsanjani and Reisman warn that
States may seek to co-opt or use the ICC to pursue
adversaries or to resolve internal political problems. They
further note that this "could open the way to using the
Court as a backup to national judicial systems that are
otherwise competent and to selective externalization of
difficult cases" and "encourage governments to
externalize to the Court... domestic political problems."
It seems that the apprehension with the practice of self-

referral is with the under-dealings that the Prosecutor
might have with the referring States. Understandably, the
States would refer situations against its considered
"enemies," but why would they want to externalize the
problem and entrust the solution with an international
body such as the ICC? And as provided in the Statute,
there are other modes of triggering the jurisdiction of the
ICC such as proprio motu by the Prosecutor or by referral
of another State or by the UN Security Council. Advocates
of the self-referrals argue that there is enhanced
cooperation and willingness from States who refer
situations within their territory. Schabas points out,
however, that "By ratifying or acceding to the Rome
Statue, every State Party has in effect accepted the
authority of the Prosecutor to investigate cases on its
territory... all of the relevant obligations are already
covered by the Rome Statute itself. Is ratification not a

sufficient indication of political will to cooperate with the
Court and to facilitate work?" 52
Incompatibility with ComplementarityRegime
The second concern with self-referrals is their

incompatibility with the complementarity regime. This
concerns the admissibility of the case and not the
jurisdiction of the ICC, as earlier pointed out. By referring
a situation within its territory, a State defers to the ICC
rather than assumes its own responsibilities. The
Prosecutor has often invoked what he refers to as
"positive complementarity," meaning that it encourages
genuine national proceedings where possible; relies on
national and international networks; and participates in a
system of international cooperation.53 Schabas observes
that the "self-referrals send the troubling message that
States may decline to assume their duty to prosecute...."
State parties initiating self-referrals relied on the ordinary

terms of Article 14, which does not preclude a State from
referring a situation within its own territory. In the
seminal decision in the Katanga case, the Appeals
Chamber clarified that "inaction on the part of the State
having jurisdiction (that is, the fact that a State is not
investigating or prosecuting, or has not done so) renders a
case admissible before the Court, subject to Article 17(1)(d)
of the Statute."55 According to the reasoning of the Trial

5 Report on Prosecutorial Strategy, September 14, 2006.
5 Case No. ICC-01/04-01/07 OA8, Judgment on the Appeal of Mr.
Germain Katanga against the Oral Decision of Trial Chamber II of 12
June 2009 on the Admissibility of the Case, 7 (September 25, 2009).
362 I ASIA PACIFIC YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
Chamber as confirmed by the Appeals Chamber, "a State
may, without breaching the complementarity principle,
refer a situation concerning its territory to the Court if it
considers it opportune to do so, just as it may decide not
to carry out an investigation or prosecution of a particular
case." 56 The Trial Chamber observed that "if a State
considers that it is more opportune for the Court to carry
out an investigation or prosecution, the State will be
complying with its duties under the complementarity
principle...."5
Payam Akhavan identified the instances when it is

"opportune" for States to make self-referrals in a manner
that is consistent with both the independence of the Court,
as well as the object and purpose of the Statute. He cites
one potential scenario where, in a deeply divided nation,
the perceived impartiality and fairness of the ICC can help
avoid politicization of post-conflict justice and thus
contribute to national reconciliation. He points out the
situation in Uganda, whose judiciary is among the best in
Africa, but where trials of LRA leaders before national
courts may be perceived as biased in view of the deep
suspicions of the government by elements of the Acholi
population in the north. A second scenario where
relinquishment of jurisdiction may be warranted is where
there is a volatile security situation. This could include for
instance the prosecution of a powerful leader before the
national courts in a delicate post-conflict transitional
situation. A third scenario is where the conduct of a
particularly complex trial in conformity with international
56 Case No. ICC-01/04-01/07, Reasons for the Oral Decision on the

Motion Challenging the Admissibility of the Case (Article 19 of the
Statute), 80 (June 16, 2009).
s7 Id.
standards entails exorbitant costs that cannot be managed

within the limited resources of a State, specially those in
the developing world.5 8
It seems then that triggering the jurisdiction of the ICC

through self-referral is closely related with the ability and
willingness of the State to prosecute the crimes committed
within its own territory (which are issues of admissibility).
Further, even if the State had the ability and the
willingness, to be balanced but external factors such as the
stability of a nascent nation are needed, then self-referral
is an acceptable practice to attain the service of impartial
justice. As can be observed, the applicability of self-
referrals is limited to situations in the context of special
circumstances (before, during, and after the fact of the
offense). It cannot be deemed that it is an option on the
part of any State Party to refer a domestic problem even if
the situation meets the jurisdictional requirements laid
down in the Statute. Ultimately, there is also the question
of admissibility by which the ICC can exercise its
discretion. Moreover, the Statute itself provides for
safeguards such as Article 53, which allows for
prosecutorial discretion "to reject claims that were
frivolous or not warranting international adjudication."
In the above scenarios depicted wherein self-referral is

deemed proper, the Maguindanao situation cannot be
deemed to fit any of the templates. In fact, the solution, as
it appears, was the transfer of the venue from Cotabato
City to Quezon City. There is no need to transfer the case
when the national justice system is able and willing and
58 Payam Akhavan, Self-Referrals before the InternationalCriminal Court:

Are States the Villains or the Victims of Atrocities?, 21 CRIM. L.F. 103
(2010).
there is no reason to fret that the trial would result in

national divisiveness and social unrest. The national
justice system is interested in dispensing justice, without
threats of resorting to extralegal means or pressures to
assure impunity to the perpetrators.
Culpability and Command Responsibility
There is roused curiosity whether former President

Macapagal-Arroyo can be held accountable for the
situation in Maguindanao that culminated with the
Maguindanao massacre. In the 2010 Report of the Human
Rights Watch,
"In the 52 cases documented by Human Rights Watch,

local police in Maguindanao and surrounding areas
routinely failed to conduct serious investigations into the
killings, enforced disappearances, abductions, and sexual
assaults where the perpetrators may be linked to the
security forces or the Ampatuan family. Many families of
victims despaired when asked whether the police
investigated the crime, and pointed to police involvement
in the crime or the close relationship between the
Ampatuans and the police. These abuses have gone
unchecked for so long that victims and their families say
they have no faith in the justice system. Serious crimes are
not reported to the state authorities, witnesses are
unwilling to come forward for fear of being killed, and the
perpetrators know they can commit abuses with
impunity." 59
Article 28 of the Statute provides for the responsibility of

superiors. In part, it provides:
(b) With respect to superior and subordinate relationships

not described in paragraph (a), a superior shall be
59
HUMAN RIGHTS WATCH, supra note 2, at 79-80.
criminally responsible for crimes within the
jurisdiction of the Court committed by subordinates
under his or her effective authority and control, as a
result of his or her failure to exercise control properly
over such subordinates, where:
(i) The superior either knew, or consciously

disregarded information which clearly indi-
cated, that the subordinates were committing
or about to commit such crimes;
(ii) The crimes concerned activities that were

within the effective responsibility and
control of the superior; and
(iii) The superior failed to take all necessary and

reasonable measures within his or her power
to prevent or repress their commission or to
submit the matter to the competent
authorities for investigation and prosecution.
(Emphasis supplied.)
It should first be settled that the Philippine government

cannot file a complaint against President Macapagal-
Arroyo before the ICC. Such is not the process before the
ICC. What may be referred to the ICC is a situation, not a
complaint. According to Philippe Kirsch, who chaired the
Bureau at the Conference, "the general approach of
referring 'situations' rather than 'cases' seems a prudent
one. This helps reduce the prospect of States-Parties
referring complaints against specific individuals, which
might create a perception of using the ICC to "settle
scores." 60 As such, bringing the case before the ICC is not
about "settling scores" but the attainment of justice not
otherwise attainable in the national judicial system.

The question then should be framed whether there is

probable cause to attribute the Maguindanao situation to
the command responsibility of former President
Macapagal-Arroyo in the event that the ICC takes
cognizance of the Maguindanao situation. Would the
Prosecutor find that former President Macapagal-Arroyo
knew or consciously disregarded information that clearly
indicated the subordinates were committing or about to
commit such crimes, that these were within her effective
responsibility and control, and that she failed to take all
necessary and reasonable measures to prevent or repress
the commission or to submit the matter to the competent
authorities for investigation and prosecution?
Prosecutor Moreno-Ocampo noted that the targets of

prosecution would be "the leaders who bear most
responsibility for the crimes." According to the
Prosecutor, the global character of the ICC is to target
those who bear the greatest responsibility, given the
limited resources and logistical constraints. 61 Since these
superiors are not principals by direct participation, that is,
they cannot be identified as actually having carried out
the crimes, the commanding superior's guilt is much
harder to prove than that of the subordinates.
Schabas notes the reluctance of the judges of the Trial

Chamber to convict based solely on circumstantial
evidence, in the absence of actual proof that orders were
given.62 He suggests two possible solutions to the
dilemma of prosecuting commanders when direct
evidence is lacking. One is to "create a presumption by
which commanders are deemed to have ordered the
61 Id., at 33.
62 Id., at 220.
OBSTACLES INBRINGING THE MAGUINDANAO MASSACRE | 367
crimes committed by their subordinates, leaving it to the

commander to answer the charges by establishing that no
such orders were given." This suggestion, however, is not
in consonance with Article 67 of the Statute, which lists
the rights of the accused to include the right "not to have
imposed on him or her any reversal of the burden of proof
or any onus of rebuttal." His second suggestion is "to
prosecute the commander not for ordering the crime itself,
but for being negligent in preventing it." 63 This is actually
the characterization under Article 28 for superior and
subordinate relationships not described in paragraph (a) -
that the superior knew or disregarded the information and
that there was failure to take action to prevent the matter
or to submit it before the justice system.
Schabas concludes that given the prevailing gravity

threshold in the admissibility of situations referred to the
ICC, "it seems unlikely that command responsibility will
ever be applied." Generally, evidence that a superior 'had
reason to know' of the acts of the principal is rendered
superfluous since in most instances these commanders
actually knew and had participated in the crimes, making
them co-perpetrators.6
Dr. Diane A. Desierto outlines the common discernible

elements of command responsibility, as derived from the
decisions of the World War II international military
tribunals. She identifies these elements to be: (1)
relationship, or the existence of lines of command
authority and responsibility between superior and
subordinate; (2) mens rea, or the existence of information
that triggers an affirmative duty on the part of the
63
Id.
6 Id., at 223.
superior to act, and/or seek out further information; (3)

actus reus, or the acts or omissions of the superior in
relation to his subordinate's offenses; and (4) imputed
liability, that is, the superior incurs the same criminal
liability as if he or she personally committed the offenses
with his or her subordinates. 65
With reference to the decisions of the International

Criminal Tribunal for Rwanda, effective control is defined
as the "material ability to prevent or punish the
commission of offenses." Effective control can exist even
in the absence of formal authority, as long as there is an
established de facto control.
Mens rea or the mental element is given a high standard in

the Statute. Mens rea, under the Statute requires both
intent and knowledge. A person has intent where: (a) in
relation to conduct, that person means to engage in the
conduct; and (b) in relation to a consequence, that person
means to cause that consequence or is aware that it will
occur in the ordinary course of events. Knowledge means
awareness that a circumstance exists or a consequence will
occur in the ordinary course of events. These twin
requisites of intent and knowledge are not however
essential in all circumstances. Article 30 begins with
"Unless otherwise provided," which is read in conjunction
with Article 28 to protect a negligence standard for guilt
by command responsibility. It is submitted however that
guilt by negligence may only apply to situations
contemplated in Article 28(a) since a military commander
is only required to know or "should have known that the
65 Diane Desierto, The Contours of Command Responsibility: Philippines

Incorporationand Customary Evolution, 2 ASIA-PACIFIC YEARBOOK OF
INTERNATIONAL HUMANITARIAN LAw 226 (2006).
forces were committing such crimes" vis-A-vis the
situation contemplated in Article 28(b) which requires that
the "superior knew, or consciously disregarded information
which clearly indicated, that the subordinates were
committing or about to commit such crimes." Conscious
disregard of information implies malice and not mere
inadvertence to exercise due diligence.
There is no equivalent provision on the Statute on the

actus reus element. From Article 28 of the Statute may be
deduced that the actus reus relevant to a superior is the
superior's failure to take all necessary and reasonable
measures to prevent or repress their commission or to
submit the matter to the competent authorities for
investigation and prosecution.
As to the element of imputed liability, the commander is

prosecuted for the crime committed by the subordinate,
and not just for a distinct offense while in a position of
authority.
Of the four elements, without a doubt, the link (even if it

need not be, or actually more so because it need not be, of
formal authority) and the mens rea are the hardest to
prove. In the Philippines, no suit has prospered that
sought to hold superiors accountable for the acts of their
subordinates. "But this is not because we have rejected
command responsibility as law but rather because of
failure to establish the necessary link between the
commanders and the crime."66
6 Joaquin Bernas, S.J., Sounding Board Command Responsibility, Phil.

Daily Inquirer, June 27, 2011, <http://opinion.inquirer.net/6976/
command-responsibility>.
From the attitude of the ICC of conservatism when it

comes to convicting individuals on the basis of command
responsibility based solely on circumstantial evidence, it is
highly unlikely that former President Macapagal-Arroyo
could be convicted as a superior for a crime against
humanity. Even assuming that the Maguindanao situation
is cognizable by the Court, it is much harder to pin down
a superior than a military commander given the
requirement of actual knowledge or conscious disregard
to the former.
Conclusion
The ICC is a court of last resort. There is much romance in

attaining justice in an international forum, but not all
crimes that shock the national consciousness or stir much
debate about where the Philippines is heading are
cognizable by the ICC. Jurisdictional requirements have to
be met. In the case of the Maguindanao massacre, the most
contentious are subject matter and temporal jurisdictions.
As established, it fails to meet both requirements as,
primarily, the crimes committed relating to the
Maguindanao situation were not widespread nor
systematic.
Assuming the jurisdictional requirements have been met,

the issue of admissibility is a contentious matter in itself.
The pendency of proceedings before the domestic court,
and the absence of or little indications of unwillingness
and inability to deliver justice render the Maguindanao
case inadmissible. Neither is it of such gravity as to merit
the status of international concern, nor is it of sufficient
gravity to justify the cognizance by the ICC in the interests
of justice.
Further, assuming that both the jurisdictional and

admissibility issues are settled, triggering the jurisdiction
of the ICC by auto-referral is a practice limited to the most
special of circumstances, such as when resort is made to
ICC since to try the case before the national courts would
cause great divisiveness and unrest in the State. Such is
not the case in the Philippines where the people are keen
to see justice delivered and where the media is vigilant
that justice be served for their slain comrades.
A complaint cannot also be filed before the ICC against

former President Macapagal-Arroyo on the basis of
command responsibility. What is referred to the ICC are
situations, not specific cases against individuals. There is
also the difficulty of establishing the link between the
committed crimes and the command authority of the
former president. The ICC has been averse to convicting
individuals for command responsibility on the basis or
circumstantial evidence.
Justice need not be offshore if it can be attained within

Philippine territory. There is much faith that the national
justice system would be able to perform its duty and
vindicate itself from all the naysayers.
APPENDICES

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Bluebook 20th ed.

ALWD 6th ed.

APA 6th ed.

Chicago 7th ed.

McGill Guide 9th ed.

MLA 8th ed.

OSCOLA 4th ed.

Much fertile discussion has developed concerning the

This Student Note was submitted in compliance with the require-

The Philippine political scene has been far from pristine. It

In November 2009, however, the Philippines became

The Complaint-Affidavit filed by Datu Esmael "Toto"

As events unfolded, almost all the members of the

DOJ Res. No. NPS XVI-INQ-09K-00103 (November 27, 2009).

1. A government backhoe was used to dig a grave and to

A 2010 Report by the Human Rights Watch, says,

"The Arroyo government, in exchange for political

The government's prime suspect in the Maguindanao

the Arroyo administration the national government

The offense is attributed to President Macapagal-Arroyo

Jurisdiction of the International Criminal Court

While the Maguindanao massacre may be described as

2 HUMAN RIGHTs WATCH, "THEY OWN THE PEOPLE": THE AMPATUANS,

STATE-BACKED MILITIAS, AND KILLINGS IN THE SOUTHERN PHILIPPINES

For States becoming parties to the Rome Statute after its

The temporal element is significant. Article 24 of the

The Statute takes effect on the sixtieth day following the

According to Professor William A. Schabas, "there is an

WILLIAM SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL

ad hoc declaration recognizing the Court's jurisdiction

To date, two declarations have been lodged with the

8 SCHABAS,supra note 5, at 67.

declaration does not mean that the Prosecutor will open

article 12, paragraph 3 with respect to acts committed on the

to the Prosecutor by a State Party to the Rome Statute, referral of a

to the declaration made by the Palestinian National

As it stands, Article 12(3) has yet to be applied by the ICC.

President Macapagal-Arroyo is quoted as condemning the

"The gruesome killings in Maguindanao constitute a most

14Gr6gor Puppinck, Legal Memorandum in Opposition to the

I am appalled and outraged by it, and I join the rising

The United Nations Secretary General issued a statement

The question remains, however, whether the factual

For the purposes of this Note, the Maguindanao case

1. The perpetrator killed one or more persons.

2. The conduct was committed as part of a widespread or

Initially, the drafters proposed the attack to be both

The commentaries on the draft Statute 9 provide that

18 INTERNATIONAL CRIMINAL COURT, ELEMENTS OF CRIMES 5 (2011).

It is also required that the attack be carried out "pursuant

The perpetrators of the crime must also have "knowledge

Applying the abovementioned elements, the Maguin-

20 ICC, supra note 18, at 5, fn. 6.

scale is not as important as the existence of a policy and

Gravity is not a numbers game. Schabas notes that to use a

Jurisdiction refers to the legal parameters of the ICC's

prosecute; and (2) the issue of complementarity, which

The principle of complementarity is one of the

Prosecutor Luis Moreno-Ocampo, referring to the concept

"As a general rule, the policy of the Office of the Prosecutor