Guingona: Senate should ratify international court treaty

Vice President Teofisto Guingona Jr. branded as unfair and discriminatory a bilateral agreement giving US nationals immunity from prosecution by the International Court of Justice (ICC).

Guingona called on the Department of Foreign Affairs yesterday to have the agreement submitted to the Senate for ratification because not only does it "shape new policy, but also violates the equal protection clause enshrined in the Constitution."

A review of the agreement showed that the Philippines would not be able to surrender US servicemen or nationals charged before the ICC without the consent of the US government, Guingona said.

"We may, however, be compelled to surrender Philippine servicemen or officers in the same case before the ICC. This is not only unequal treatment. It is also unfair," he said.

In effect, he stressed, the Philippine government may surrender to the ICC "our Secretary of Foreign Affairs, but not the US Secretary of State."

"The discrimination introduced by this Non-Surrender Agreement takes an absurd twist because it protects Filipino officials or military personnel while they are in US territory but they may be surrendered to the ICC by their own government if they are present in Philippine territory," Guingona said.

The pact was concluded last month by Foreign Affairs Secretary Blas Ople and US Secretary of State Colin Powell.

Ople said the agreement covered the "mutual non-surrender of nationals, including military personnel and government officials to a third country or to the international tribunal."

Apart from the Philippines, the US has also signed the so-called "Article 98" agreements exempting US citizens from ICC jurisdiction with several dozen other countries.

Human rights groups have warned that the agreement could be used to protect US troops who commit ordinary crimes in the Philippines or other areas under the jurisdiction of the ICC.

In a press conference yesterday, Guingona distributed photocopies of his letter to Foreign Affairs Secretary Blas Ople suggesting that the RP-US Mutual Non-Surrender Agreement be submitted for review and ratification by the Senate.

"I humbly but strongly suggest that this agreement be submitted to the Senate for ratification," Guingona told Ople.

He also pointed out that since the so-called executive agreement "binds our nation, and the people who may be affected by alleged wrongs, the same should be submitted for legislative concurrence.

The Philippines was among the 139 countries that originally signed the 1998 Rome Statute that created the ICC but the Senate has yet to ratify the treaty.

Guingona said he was "saddened" by Malacanang’s inclination not to ask the Senate to ratify the treaty.

It was also learned that jailed ex-President Joseph Estrada had actually signed an instrument of transmittal for endorsing the treaty for Senate ratification, but the move was overtaken by the second EDSA uprising that toppled Estrada from power.

The agreement, the Vice President added, "appears to be an implementation of a US federal law, the American Service-Members’ Protection Act (or Patriot Act), which protects US officials and military personnel from the jurisdiction of the ICC and prohibits the US Government from cooperating with the ICC."

"By means of this agreement, the American Service-Members’ Protection Act is extended to apply to the Philippines which prevents us from cooperating with the ICC by the surrender of US personnel who are under investigation or prosecution for criminal acts committed within Philippine territory."

Guingona likewise cited a provision that "no United States military assistance may be provided to the government of a country that is a party to the ICC."

"Is it now a matter of national policy that the Philippines obtain foreign military assistance by some coercive process and at the price of abdicating its sovereign choice as to how it will relate to the International Criminal Court?" he asked.