Manila Times, Philippines
Nov 8 2004
DOUBLETAKE
Upholding the child’s dignity
By Eric F. Mallonga
TWO years ago, at the UN General Assembly Special Session on
Children, His Serene Highness, Prince Albert of Monaco formally
proposed the recognition of the most serious crimes against children
as crimes against humanity. The proposal had its roots in the
recommendation to the World Association Children’s Friends, or
Association Mondiale des Amis de L’ Enfance (Amade), by its
Philippine chapter. HRH The Princess of Hanover fully supported the
move so that highly organized criminal syndicates exploiting children
for commercial sex, slavery, bonded labor, organ harvesting, military
conscription, armed conflict and targeting children for military
objectives could be held criminally accountable before international
tribunals. With qualification of crimes against humanity, even
monarchs, presidents, and prime ministers cannot invoke sovereign
immunity from accountability for involvement in such abominable
crimes.
At the Makati Shangri-La Hotel colloquium held under joint
sponsorship of Amade-Philippines, Virlanie Foundation, and
Development Academy of the Philippines, UP Law Professor Harry Roque,
a Master of Laws cum laude, specialist in International Humanitarian
Law from the University of London, expounded on the necessity for a
progressive evolution of world humanitarian law. As stressed by
Roque, international crimes of genocide, war crimes, crimes against
aggression and crimes against humanity evolved because of the need to
proscribe conduct that denies dignity to human beings owing to their
basic humanity. Genocide, torture and slavery are international
crimes because they contravene basic standards by which human beings
should be treated under laws of humanity. The Amade proposal to
qualify the most heinous crimes against children as crimes against
humanity is consistent with the universal pattern that seeks to
uphold the dignity of human beings under all conditions, whether in
times of war or peace.
But simple recognition of these crimes within the international
sphere may remain a principle that eludes enforceability. The UN
Convention on the Rights of the Child may have radically provided for
the recognition of children’s rights but it remains an unenforceable
document because there is no recognized international tribunal
through which the rights of children can be adjudicated and sanctions
can be imposed upon the violators. Thus, the logical progression to
strengthen existing recognition of rights to protection of
defenseless children is the punishment of crimes through
international tribunals. However, the recognition of international
tribunals is a fairly recent initiative.
According to Roque, the League of Nations, at the end of the First
World War, tried to convene an international tribunal to try grave
breaches of the laws and customs of warfare. Nations were aghast over
the use of weapons of mass destruction, which did not distinguish
between civilian and military targets as well as the deaths of more
than one million innocent Armenian civilians, mostly children, at the
hands of invading Turks. This original initiative did not succeed
because of a legal objection interposed by the United States.
Pursuant to their concept of legality, war crimes could only be
prosecuted if there is a domestic penal law defining war crimes.
Consequently, America also argued that such prosecutions could only
be held before domestic judicial tribunals. The same problem arose at
the end of the Second World War. Despite existence of nonderogable
treaties protecting civilians and prohibiting warfare that produce
superfluous injuries or unnecessary sufferings, 10 million civilians,
mostly Jews, died in Europe, and another seven million died
elsewhere, including Asia.
The Philippine Supreme Court, despite the objections of the
Americans, ruled in Yamashita v. Styler that since nonderogable
treaties have been proven grossly insufficient to implement norms of
International Humanitarian Law, the individual should, and could, now
be made criminally accountable for his criminal acts under customary
norms of public international law. The latter was sufficient legal
basis for prohibiting grave breaches thereof. General Yamashita, the
feared Tiger of Asia, was thus convicted for war crimes, including
instances committed in the province of Batangas where the Japanese
Imperial Army specifically targeted children. The Japanese Kempeitai
were known for their atrocious behavior, specifically for hurling
infants into the air and sticking their bayonets into the descending
bodies of the babies.
America, however, has remained recalcitrant. It rejects the Rome
Statute on the International Criminal Court. It refuses to recognize
that crimes against children are crimes against humanity. It rejects
the Convention on the Rights of the Child. It denounces any
submission to the United Nations on vital decisions that aspire only
to establish world peace and prosperity.
With such stance, innocent children in Iraq and Afghanistan will be
murdered with impunity, as thousands of innocent children were
similarly massacred by American troops at Pampanga, Samar, Bud Daho
and Bud Bagsak. With such recalcitrance, children born crippled at
former American military bases in Angeles and Olongapo cities will
continue to suffer and die, with impunity. Sadly, children will
remain collateral damage – without any real recourse for vindication of
their rights – in America’s `moral’ war.