Abstract
International Criminal Law occupies a distinct place in public law: it punishes individuals for conduct that shocks the conscience of humanity, yet it does so through institutions that must remain practical, selective, and enforceable. Two broad theories help explain its foundations. The fundamentalist theory views international criminal punishment as a moral and legal necessity arising from the intrinsic wrongfulness of genocide, crimes against humanity, war crimes, aggression, torture, enforced disappearance, and other grave offenses. The utilitarian theory, by contrast, justifies international criminal law by its consequences: deterrence, prevention, incapacitation, peace-building, victim recognition, institutional reform, and the maintenance of international order.
In the Philippine context, the tension between these theories appears in constitutional commitments to human dignity, domestic statutes implementing international crimes, the country’s relationship with the International Criminal Court, and debates over sovereignty, accountability, and transitional justice. Philippine law reflects both approaches. It treats certain crimes as so serious that they offend humanity itself, while also using criminal accountability as an instrument to prevent impunity, discipline state power, protect victims, and preserve democratic constitutional order.
I. Introduction
International Criminal Law, or ICL, is the body of law that imposes criminal responsibility on individuals for the gravest violations of international law. Unlike ordinary international law, which traditionally governed states, ICL pierces the veil of state authority and reaches natural persons: presidents, ministers, generals, police officials, rebel commanders, soldiers, and civilians who participate in atrocity crimes.
The philosophical problem at the heart of ICL is this: why punish?
Two answers dominate.
The first is fundamentalist. It says some acts are so inherently evil that the law must condemn and punish them, regardless of whether punishment produces measurable benefits. Genocide, mass murder, systematic rape, torture, enforced disappearance, persecution, and deliberate attacks on civilians are wrong in themselves. Punishment is a matter of justice.
The second is utilitarian. It says punishment is justified because it serves useful social and political purposes. It deters future atrocities, incapacitates dangerous actors, signals legal norms, helps stabilize societies after conflict, gives victims a forum, and strengthens domestic and international institutions.
Neither theory alone fully explains international criminal law. The actual practice of ICL is mixed. Courts speak the language of humanity, conscience, dignity, and justice, but they also operate under practical constraints: limited jurisdiction, limited resources, political resistance, evidentiary difficulty, and the need to complement domestic systems.
In the Philippines, this tension is especially visible. The country has a constitutional tradition that values human rights, dignity, due process, accountability, and adherence to international law. It has enacted domestic legislation on international crimes, including Republic Act No. 9851, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. At the same time, Philippine debates over international accountability often involve sovereignty, complementarity, the role of domestic courts, and the limits of foreign or international intervention.
The Philippine experience therefore provides a useful lens through which to examine the conflict and convergence between fundamentalist and utilitarian theories of international criminal law.
II. Nature and Scope of International Criminal Law
International Criminal Law concerns crimes considered so grave that they are not merely offenses against a particular victim, community, or state. They are offenses against the international legal order itself.
The core crimes usually associated with ICL are:
- Genocide
- Crimes against humanity
- War crimes
- Aggression
Other serious international offenses, such as torture, enforced disappearance, apartheid, slavery, piracy, and terrorism-related offenses, may also be discussed in relation to international criminal responsibility, though their legal treatment depends on the applicable treaty, customary international law, or domestic statute.
ICL differs from ordinary criminal law in several ways.
First, it often deals with mass criminality. The accused may not personally kill every victim, but may be responsible through command responsibility, ordering, aiding and abetting, joint criminal enterprise, superior responsibility, or participation in a widespread or systematic attack.
Second, it often involves state or organizational power. Atrocity crimes are rarely isolated acts. They are usually committed through institutions: military units, police forces, militias, intelligence services, political parties, or armed groups.
Third, it limits certain traditional defenses. Official position, superior orders, and domestic legality do not automatically excuse international crimes.
Fourth, it operates through both international institutions and domestic courts. The International Criminal Court is only one mechanism. Domestic courts remain central.
In Philippine law, this domestic implementation is especially important. The Philippines does not need to rely solely on international tribunals to prosecute international crimes. RA 9851 creates domestic offenses for genocide, crimes against humanity, and war crimes, and recognizes principles such as command responsibility and non-prescription of certain crimes.
III. The Fundamentalist Theory of International Criminal Law
A. Meaning of Fundamentalist Theory
The fundamentalist theory holds that international criminal law is grounded in foundational moral and legal principles. It is not primarily a tool for social engineering. It is an expression of justice.
Under this theory, punishment is justified because the offender deserves it. The wrong committed is so grave that failure to punish would itself be a legal and moral failure.
The theory may also be called retributive, deontological, or justice-centered, although these terms are not perfectly identical. What they share is the idea that accountability for atrocity is required by principle.
A fundamentalist approach asks:
- Was a grave wrong committed?
- Did the accused bear individual criminal responsibility?
- Does justice require condemnation and punishment?
- Would non-punishment deny the dignity of victims?
- Would impunity corrupt the legal order?
The focus is not primarily on whether prosecution will deter future offenders or produce peace. The focus is on the inherent wrongfulness of the act and the obligation of law to respond.
B. Philosophical Foundation
The fundamentalist theory draws from several ideas.
First, it is rooted in human dignity. Atrocity crimes reduce persons to objects: targets, enemies, statistics, bodies, or instruments of policy. Punishment reaffirms that victims were human beings with rights.
Second, it is rooted in moral desert. Those who intentionally participate in mass atrocities deserve condemnation. The gravity of the crime demands a legal response.
Third, it is rooted in universal values. Some acts are condemned not merely because a state prohibits them, but because they violate norms binding on all civilized legal systems.
Fourth, it is rooted in legal conscience. International crimes are said to offend the conscience of humanity. This phrase is not merely rhetorical. It reflects the idea that the legal order itself is wounded by atrocities.
C. Fundamentalism and the Nuremberg Legacy
The modern architecture of international criminal law is often traced to the post-World War II prosecutions at Nuremberg and Tokyo. These tribunals established that individuals, including state officials, could be criminally liable under international law.
The Nuremberg idea is fundamentally anti-impunity. It rejects the argument that a person may escape liability by saying, “I acted for the state.” It also rejects the idea that legality is exhausted by domestic law. A state cannot legalize genocide or aggressive war simply by passing a domestic statute.
From a fundamentalist perspective, Nuremberg stands for the proposition that there are crimes so serious that international law must punish them, even when domestic law fails.
D. Fundamentalist View of Victims
The fundamentalist approach places victims at the center of legal meaning. Punishment is not simply about managing future behavior. It is about recognizing past wrongs.
This is crucial in atrocity contexts. Victims of mass crimes are often denied not only life, liberty, or bodily integrity, but also truth. States or armed groups may deny that the crime occurred, erase records, intimidate witnesses, or reframe victims as enemies.
A criminal judgment performs an expressive function. It says: the victims were wronged; the acts were criminal; the perpetrators were responsible; the law recognizes the harm.
E. Fundamentalism in Philippine Constitutional Law
The Philippine Constitution contains principles that resonate with a fundamentalist theory of ICL.
The 1987 Constitution protects life, liberty, due process, equal protection, human dignity, and human rights. It also renounces war as an instrument of national policy, adopts generally accepted principles of international law as part of the law of the land, and values human rights and social justice.
The Constitution was framed after authoritarian rule. Its rights-protective character reflects a historical rejection of impunity. In this sense, Philippine constitutionalism has a fundamentalist dimension: certain abuses of state power are not merely inefficient or destabilizing; they are inherently unconstitutional and morally intolerable.
This is seen in provisions and doctrines concerning:
- due process;
- custodial rights;
- prohibition against torture;
- habeas corpus;
- accountability of public officers;
- civilian supremacy;
- judicial review;
- command responsibility in appropriate contexts;
- human rights protections;
- the role of the Commission on Human Rights.
F. Fundamentalism in Philippine Statutory Law
RA 9851 reflects a fundamentalist understanding of international crimes. It criminalizes genocide, crimes against humanity, war crimes, and serious violations of international humanitarian law. These crimes are treated as extraordinary offenses because they attack basic human values.
The statute embodies several fundamentalist ideas.
First, it recognizes that certain crimes are not ordinary domestic offenses. Murder, rape, torture, or deportation may become crimes against humanity when committed as part of a widespread or systematic attack against civilians.
Second, it recognizes that legal responsibility extends beyond the direct physical perpetrator. Leaders and commanders may bear responsibility when they order, plan, aid, abet, or fail to prevent or punish crimes under circumstances recognized by law.
Third, it limits impunity by recognizing serious international crimes as offenses of grave concern.
Fourth, it reinforces the idea that Philippine courts can serve as venues for international criminal accountability.
IV. The Utilitarian Theory of International Criminal Law
A. Meaning of Utilitarian Theory
The utilitarian theory justifies international criminal law by its beneficial consequences. It asks whether prosecution and punishment produce desirable outcomes.
The central question is not “what does the offender deserve?” but “what good does punishment achieve?”
The utilitarian approach emphasizes:
- deterrence;
- prevention;
- incapacitation;
- rehabilitation where possible;
- norm projection;
- institutional reform;
- peace-building;
- reconciliation;
- victim participation;
- historical clarification;
- strengthening domestic legal systems.
International criminal law is therefore seen as a tool for managing atrocity, preventing recurrence, and stabilizing societies.
B. Deterrence
The most common utilitarian argument is deterrence. If leaders, commanders, soldiers, police officers, and militia members know that international crimes may lead to prosecution, they may be less likely to commit atrocities.
The deterrence argument has two forms.
General deterrence aims to discourage others from committing similar crimes.
Specific deterrence aims to prevent the accused from reoffending.
In international criminal law, deterrence is difficult but not irrelevant. Atrocity crimes often occur in chaotic, ideological, or authoritarian settings where perpetrators believe they will win, remain protected, or control the courts. Yet the existence of international criminal accountability can still alter calculations, especially for military officers, bureaucrats, and political leaders who value legitimacy, travel, assets, alliances, or future political survival.
C. Incapacitation
Punishment may also incapacitate offenders. Removing a commander, militia leader, or state official from power may prevent further crimes.
This has practical importance. In mass atrocity contexts, the accused may retain influence over armed personnel, witnesses, institutions, or victims. Prosecution and detention can disrupt criminal networks.
D. Norm Projection and Expressive Utility
Even when deterrence is uncertain, trials can project norms. A judgment teaches that civilians may not be targeted, torture is prohibited, rape may constitute an international crime, enforced disappearance is not a legitimate security tool, and official rank does not guarantee immunity.
This overlaps with fundamentalism but remains utilitarian when justified by social effect. The trial is useful because it educates institutions and populations.
E. Peace, Transition, and Institutional Reform
The utilitarian theory also connects ICL with transitional justice. After dictatorship, civil conflict, insurgency, or mass violence, societies must decide how to confront the past.
Criminal prosecutions may help by:
- establishing an authoritative record;
- delegitimizing abusive institutions;
- identifying individual rather than collective guilt;
- discouraging revenge;
- supporting security sector reform;
- encouraging reparations;
- strengthening courts and prosecutors.
However, utilitarianism also creates hard questions. What if prosecution threatens peace talks? What if trials destabilize a fragile transition? What if amnesties are offered in exchange for disarmament? What if domestic institutions are too weak to conduct fair trials?
A strict utilitarian may accept compromise if it produces greater overall good. A strict fundamentalist may reject compromise when it sacrifices justice.
F. Utilitarianism in the Philippine Context
The Philippine legal and political setting gives utilitarian theory significant practical force.
The Philippines has faced internal armed conflict, martial law memory, insurgency, counterinsurgency operations, political violence, extrajudicial killings, terrorism-related security concerns, and debates over police and military accountability. In these settings, criminal accountability is not only about moral condemnation. It is also about preventing recurrence and disciplining the use of state power.
Utilitarian concerns arise in:
- prosecutions of abuses during armed conflict;
- accountability for enforced disappearances and torture;
- treatment of command responsibility;
- police accountability;
- protection of witnesses;
- peace negotiations with insurgent groups;
- transitional justice in conflict-affected areas;
- security sector reform;
- human rights training of armed forces and police;
- domestic implementation of international humanitarian law.
From a utilitarian perspective, the value of international criminal law in the Philippines lies partly in its ability to prevent cycles of violence and impunity.
V. Points of Conflict Between Fundamentalist and Utilitarian Theories
A. Justice Versus Peace
The most common conflict is between justice and peace.
A fundamentalist theory says grave crimes must be punished because justice demands it.
A utilitarian theory may ask whether punishment at a particular moment would prolong conflict, harden resistance, or undermine negotiations.
For example, in a peace process with an armed group, should leaders accused of atrocities be prosecuted immediately, or should accountability be sequenced after disarmament? Should amnesty be allowed for political offenses but not for international crimes? Should truth commissions supplement prosecutions?
Philippine constitutional and statutory law would not easily tolerate amnesty for genocide, crimes against humanity, or serious war crimes. Yet peace processes often require political negotiation. The legal challenge is to design accountability mechanisms that preserve justice while supporting peace.
B. Selectivity
International criminal law is inherently selective. Not every perpetrator is prosecuted. Courts usually target those most responsible.
A fundamentalist may object that selectivity undermines equal justice. If all perpetrators deserve punishment, why prosecute only a few?
A utilitarian may respond that selectivity is necessary. Prosecuting everyone may be impossible. Targeting senior leaders may produce the greatest deterrent and expressive effect.
In the Philippine context, this issue appears in debates over whether accountability should focus on direct perpetrators, commanders, policymakers, or institutional heads. A purely low-level prosecution strategy may punish trigger-pullers but leave structures intact. A purely high-level strategy may neglect victims’ need to see direct perpetrators held accountable. A balanced approach is required.
C. Sovereignty Versus International Accountability
Fundamentalism tends to treat international crimes as offenses that transcend sovereignty. A state cannot hide behind sovereignty to shield atrocity.
Utilitarianism may be more cautious. It may value domestic ownership, institutional stability, and political feasibility. It may prefer domestic prosecution where possible because local courts are closer to victims, evidence, and affected communities.
The Philippine Constitution contains both principles. It values national sovereignty and democratic self-government, but it also incorporates generally accepted principles of international law and protects human rights.
The Philippine debate over the International Criminal Court illustrates this tension. Sovereignty-based objections emphasize domestic jurisdiction and national independence. Accountability-based arguments emphasize the need for external review when domestic systems are unwilling or unable genuinely to prosecute grave crimes.
D. Punishment Versus Truth
Fundamentalist theory prioritizes punishment. Utilitarian theory may value truth-telling, reparations, institutional reform, and reconciliation, even where criminal conviction is difficult.
The Philippines has had experiences where historical truth, memorialization, and compensation have played roles alongside criminal accountability. The martial law reparations framework, human rights documentation, and public memory efforts show that legal response to atrocity may include more than prosecution.
Still, from a fundamentalist view, truth without accountability may be inadequate. From a utilitarian view, punishment without truth and reform may also be inadequate.
E. Rights of the Accused
A fundamentalist theory can sometimes be misunderstood as victim-centered to the point of disregarding the accused. That would be legally unacceptable. The rule of law requires fair trial, presumption of innocence, proof beyond reasonable doubt, impartial courts, and due process.
A utilitarian theory can also be dangerous if it treats the accused as a means to social goals. Punishing a person to “send a message” without strict proof would violate justice.
Philippine constitutional law strongly protects due process. Any prosecution for international crimes must observe constitutional guarantees. The gravity of the offense does not lower the standard of proof. In fact, the more serious the accusation, the more important procedural fairness becomes.
VI. Points of Convergence
Although the theories conflict, they also converge.
A. Both Reject Impunity
Fundamentalism rejects impunity because it is unjust. Utilitarianism rejects impunity because it encourages future abuse.
In the Philippine setting, this convergence is important. Impunity weakens public trust, emboldens abusive officials, silences victims, and damages democratic institutions. Whether one begins from justice or prevention, the conclusion is similar: grave crimes must not be ignored.
B. Both Value Individual Responsibility
ICL rejects collective guilt. It punishes individuals based on personal responsibility.
This serves fundamentalist justice because only the guilty should be punished.
It also serves utilitarian goals because individualized trials prevent revenge against entire groups and help societies distinguish between leaders, direct perpetrators, bystanders, victims, and communities.
In the Philippines, where conflict may involve ideological, ethnic, religious, regional, or political divisions, individualized criminal responsibility helps prevent broad stigmatization.
C. Both Support Rule of Law
Fundamentalism sees the rule of law as a moral requirement.
Utilitarianism sees it as socially beneficial.
Both require courts, evidence, procedure, impartiality, and reasoned judgments. This is especially important in domestic prosecutions of international crimes. A prosecution that violates due process may damage both justice and deterrence.
D. Both Recognize Victims
Fundamentalism recognizes victims because their dignity demands acknowledgment.
Utilitarianism recognizes victims because participation, reparations, and truth-telling promote healing and social trust.
In Philippine law, victim protection and witness support are crucial. Atrocity cases often involve fear, intimidation, trauma, and institutional pressure. Without victim and witness protection, both theories fail in practice.
VII. Philippine Legal Framework
A. Constitutional Foundations
The Philippine Constitution provides the normative foundation for domestic engagement with international criminal law.
Relevant constitutional principles include:
1. Incorporation of International Law
The Constitution adopts generally accepted principles of international law as part of the law of the land. This supports the domestic relevance of customary international law, international humanitarian law, and human rights norms.
However, incorporation does not automatically resolve every question. Courts must still determine whether a principle is generally accepted, self-executing, compatible with domestic law, and applicable to the facts.
2. Human Dignity and Rights
The Bill of Rights protects life, liberty, due process, equal protection, privacy, speech, association, religious freedom, rights of the accused, and protection against unreasonable searches and seizures. These guarantees constrain state power and support accountability.
3. Accountability of Public Officers
Public office is a public trust. Officials are accountable to the people. This principle resonates strongly with ICL, especially where state authority is used to commit or conceal abuses.
4. Civilian Supremacy
Civilian authority is supreme over the military. This principle matters in cases involving martial law, internal armed conflict, counterinsurgency, emergency powers, and command responsibility.
5. Judicial Power
The expanded judicial power under the Constitution allows courts to determine grave abuse of discretion. This is significant in human rights and accountability litigation.
B. Republic Act No. 9851
RA 9851 is the central Philippine statute on international crimes. It is formally known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.
It domesticates major categories of international crimes and provides a statutory basis for prosecution before Philippine courts.
1. War Crimes and International Humanitarian Law
War crimes involve serious violations of international humanitarian law committed in the context of armed conflict. These may include deliberate attacks on civilians, torture, inhuman treatment, unlawful killing, taking hostages, attacking humanitarian personnel, and using prohibited methods or means of warfare.
The Philippine context is significant because the country has experienced non-international armed conflicts involving state forces and organized armed groups. International humanitarian law applies not only to wars between states but also to certain internal armed conflicts.
2. Genocide
Genocide requires specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such. This special intent makes genocide difficult to prove, but also marks it as one of the gravest crimes known to law.
Philippine prosecutions for genocide would require proof not only of prohibited acts, such as killing or causing serious harm, but also genocidal intent.
3. Crimes Against Humanity
Crimes against humanity involve certain acts, such as murder, extermination, enslavement, deportation, imprisonment, torture, rape, enforced disappearance, persecution, and other inhumane acts, when committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack.
This category is especially important because it does not require an armed conflict. A state or organization may commit crimes against humanity in peacetime.
In the Philippine context, this category is relevant to discussions of widespread or systematic violence against civilians, including allegations involving state or organizational policies.
4. Command Responsibility
Command responsibility is essential to international criminal law. It recognizes that superiors may be liable when they knew or should have known that subordinates were committing or about to commit crimes and failed to prevent or punish them, subject to the applicable legal standard.
This doctrine is especially relevant in military, police, and hierarchical organizations.
In Philippine law, command responsibility has appeared in human rights litigation and statutory frameworks. Its criminal application requires careful proof of superior-subordinate relationship, knowledge or constructive knowledge, failure to act, and the underlying crimes.
5. Non-Applicability of Official Capacity as a Complete Shield
International criminal law rejects the idea that official position automatically exempts a person from responsibility. Heads of state, ministers, commanders, and other officials may be liable where the law so provides.
In domestic Philippine law, questions of immunity, jurisdiction, and official capacity must still be analyzed under constitutional and statutory rules. But as a principle, public office cannot be treated as a license to commit international crimes.
C. Other Relevant Philippine Laws
International criminal law in the Philippines does not operate through RA 9851 alone. Other statutes are relevant.
1. Anti-Torture Act
The Anti-Torture Act criminalizes torture and other cruel, inhuman, or degrading treatment or punishment. Torture may be a domestic offense and, in certain circumstances, may also form part of crimes against humanity or war crimes.
2. Anti-Enforced or Involuntary Disappearance Act
Enforced disappearance is especially serious because it combines deprivation of liberty, concealment, denial, and prolonged suffering of victims and families. It may also constitute a crime against humanity when committed as part of a widespread or systematic attack.
3. Human Security and Anti-Terrorism Legislation
Security legislation raises important questions about balancing public safety and human rights. Counterterrorism operations must remain consistent with constitutional rights, international humanitarian law, and international human rights law.
A utilitarian argument for security cannot justify international crimes. Necessity, national security, or public order cannot legalize torture, enforced disappearance, extrajudicial killing, or deliberate attacks on civilians.
4. Revised Penal Code
Ordinary crimes such as murder, homicide, rape, serious physical injuries, arbitrary detention, and grave coercion may overlap with international crimes. The same conduct may be prosecuted as an ordinary domestic offense or, where contextual elements are present, as an international crime under RA 9851.
The choice of charge matters. Charging an atrocity as ordinary murder may punish the act but fail to capture its systematic or international character. Charging it as a crime against humanity or war crime recognizes the broader structure of criminality.
VIII. The International Criminal Court and the Philippines
The International Criminal Court, or ICC, operates under the Rome Statute. Its jurisdiction is based on complementarity: the ICC is intended to act when national jurisdictions are unwilling or unable genuinely to investigate or prosecute.
The Philippines signed and ratified the Rome Statute, later withdrew from it, and has been involved in major legal and political debates concerning the continuing effect of ICC jurisdiction over alleged crimes committed during the period when the Rome Statute was in force for the country.
The ICC issue brings fundamentalist and utilitarian theories into direct conflict.
A. Fundamentalist View of ICC Jurisdiction
From a fundamentalist perspective, withdrawal from the ICC should not become a mechanism for impunity. If crimes against humanity or other international crimes were allegedly committed during the period of membership, accountability remains morally and legally necessary.
The argument is simple: victims’ rights and the gravity of international crimes should not depend entirely on political choices by the state.
B. Utilitarian View of ICC Jurisdiction
From a utilitarian perspective, the ICC may serve useful functions:
- encouraging domestic investigation;
- deterring future abuses;
- preserving evidence;
- signaling international scrutiny;
- giving victims a forum;
- pressuring institutions to reform.
But utilitarian objections may also be raised:
- ICC involvement may be politically polarizing;
- it may be portrayed as interference with sovereignty;
- it may complicate domestic legal processes;
- it may be slow and selective;
- it may depend heavily on state cooperation.
The utilitarian question is whether ICC involvement produces more accountability and prevention than purely domestic mechanisms. The answer depends on whether domestic remedies are genuine, independent, and effective.
C. Complementarity and the Philippine Legal System
Complementarity is where both theories meet. The fundamentalist theory demands accountability; the utilitarian theory prefers the most effective forum. If Philippine institutions genuinely investigate and prosecute international crimes, domestic proceedings may satisfy both theories. If they do not, international mechanisms become more compelling.
The core issue is not abstract sovereignty. It is genuineness.
A state cannot defeat international jurisdiction merely by pointing to formal proceedings if those proceedings are designed to shield perpetrators, delay accountability, or avoid the real criminal pattern.
At the same time, international law does not require bypassing domestic courts when they are able and willing to act.
IX. Application to Philippine Issues
A. Extrajudicial Killings and Crimes Against Humanity
Allegations of widespread extrajudicial killings raise questions under both ordinary criminal law and international criminal law.
Under a domestic ordinary-crime framework, each killing may be prosecuted as murder or homicide.
Under an international criminal law framework, the inquiry expands:
- Were the killings part of a widespread or systematic attack?
- Was the attack directed against a civilian population?
- Was there a state or organizational policy?
- Did accused persons know of the broader attack?
- Were superior officials responsible through ordering, inducement, aiding, abetting, or command responsibility?
- Were investigations genuine?
A fundamentalist approach emphasizes that unlawful killings must be punished because human life and dignity were violated.
A utilitarian approach emphasizes that accountability is necessary to deter future abuses, reform law enforcement, restore trust, and prevent normalization of state violence.
The Philippine legal challenge is evidentiary and institutional. International crimes require proof not only of individual acts, but also of context, pattern, policy, knowledge, and linkage to accused persons.
B. Internal Armed Conflict
The Philippines has dealt with long-running internal armed conflicts involving communist insurgency, separatist movements, extremist groups, and other armed actors. International humanitarian law applies when the legal threshold for armed conflict is met.
Possible war crimes may include:
- attacks on civilians;
- murder of persons not taking active part in hostilities;
- torture;
- cruel treatment;
- hostage-taking;
- recruitment or use of children in hostilities;
- attacks on humanitarian workers;
- perfidy;
- pillage;
- outrages upon personal dignity.
Both state forces and non-state armed groups can violate international humanitarian law.
A fundamentalist view insists that war does not suspend humanity. Some acts remain absolutely prohibited.
A utilitarian view stresses that enforcement of IHL reduces brutality, protects civilians, and makes negotiated peace more possible.
C. Martial Law and Historical Accountability
The memory of martial law remains central to Philippine constitutional culture. Human rights violations during authoritarian rule shape contemporary debates over impunity, reparations, memory, and accountability.
Fundamentalist theory views historical accountability as justice owed to victims.
Utilitarian theory views historical reckoning as necessary to prevent repetition, educate future generations, and strengthen democratic institutions.
A purely punitive model may be incomplete decades after violations occurred, especially where perpetrators are dead, evidence is lost, or institutions have changed. But a purely symbolic model may also be inadequate if it fails to name responsibility or repair harm.
The Philippine experience suggests that transitional justice must combine:
- criminal accountability where legally possible;
- reparations;
- truth-telling;
- historical education;
- institutional reform;
- memorialization;
- access to records;
- protection against denialism.
D. Mindanao, Transitional Justice, and Peace Processes
The Bangsamoro peace process and broader Mindanao conflict raise complex questions about justice and peace.
In transitional settings, utilitarian arguments often favor negotiated settlement, autonomy arrangements, normalization, disarmament, and reconciliation.
But fundamentalist limits remain. Grave international crimes cannot simply be erased by political compromise.
A principled peace process should distinguish between:
- political offenses;
- ordinary crimes;
- conflict-related acts;
- serious violations of international humanitarian law;
- crimes against humanity;
- genocide.
Amnesty may be appropriate for certain political offenses, but it becomes legally and morally problematic when extended to international crimes.
A sustainable Philippine approach should integrate accountability with peace-building. Justice delayed for sequencing reasons may be defensible; justice abandoned entirely is not.
E. Police, Military, and Command Structures
International criminal law is especially relevant to hierarchical institutions. Atrocity crimes often occur because institutions reward, tolerate, ignore, or conceal abuses.
Command responsibility is therefore crucial.
In the Philippine setting, accountability must examine not only direct perpetrators but also:
- operational orders;
- rules of engagement;
- target lists;
- incentives;
- public statements;
- reporting systems;
- failure to investigate;
- obstruction of justice;
- patterns of similar incidents;
- disciplinary records;
- internal communications;
- institutional culture.
A fundamentalist theory condemns the abuse of authority as a betrayal of public trust.
A utilitarian theory seeks to reform command structures so violations do not recur.
X. Key Doctrinal Concepts
A. Individual Criminal Responsibility
International criminal law punishes individuals, not abstract institutions. However, individuals may be liable in different ways:
- direct commission;
- co-perpetration;
- ordering;
- soliciting or inducing;
- aiding and abetting;
- planning;
- superior or command responsibility;
- contribution to group criminality.
This is important in the Philippines because atrocity allegations often involve organized operations. The law must determine who did what, who knew what, who ordered what, and who failed to prevent or punish what.
B. Contextual Elements
International crimes usually require contextual elements beyond the underlying act.
For crimes against humanity, the prosecution must show a widespread or systematic attack against a civilian population.
For war crimes, the prosecution must show a nexus to armed conflict.
For genocide, the prosecution must show specific intent to destroy a protected group.
These elements distinguish international crimes from ordinary crimes.
C. Mens Rea
Mental element matters. International crimes require proof of intent, knowledge, or other applicable mental standards.
For superior responsibility, knowledge may be actual or constructive, depending on the legal standard. The superior’s failure to act is not negligence in the ordinary sense; it is criminal omission in the face of a duty to prevent or punish grave crimes.
D. Superior Orders
Following orders is not an automatic defense. A subordinate cannot escape liability for manifestly unlawful orders, especially orders to kill civilians, torture detainees, or commit atrocities.
However, superior orders may be relevant to mitigation, duress, or factual assessment in limited circumstances. The analysis must remain careful and fact-specific.
E. Official Capacity
Official position does not erase criminal responsibility for international crimes. This is central to ICL because many atrocities are committed under color of law.
In domestic Philippine proceedings, official immunity doctrines, jurisdictional rules, and constitutional processes may affect timing or forum. But as a substantive principle, public office cannot convert atrocity into legality.
F. Non-Prescription
International crimes are often treated as imprescriptible or subject to special limitation rules because of their gravity. Non-prescription reflects a fundamentalist idea that time should not cleanse atrocity. It also serves utilitarian purposes by preventing perpetrators from simply waiting out accountability.
XI. Critiques of Fundamentalist Theory
The fundamentalist theory is powerful but vulnerable to critique.
A. Risk of Moral Absolutism
A purely fundamentalist approach may ignore political realities. It may insist on prosecution even where institutions are unprepared, evidence is weak, or proceedings may be unfair.
Justice cannot be achieved through defective trials. Convicting without proof would betray the very dignity the theory seeks to protect.
B. Selective Enforcement
If justice is absolute, selective prosecution becomes difficult to defend. Yet ICL is always selective because resources are limited.
This can create perceptions of victor’s justice, political targeting, or unequal accountability.
C. Insufficient Attention to Prevention
Punishment after atrocity may come too late. A theory focused primarily on desert may not adequately address structural prevention, education, reform, and early warning.
D. Limited Use in Peace Negotiations
A rigid insistence on immediate prosecution may complicate negotiations in active conflicts. While impunity is unacceptable, timing and sequencing may matter.
XII. Critiques of Utilitarian Theory
The utilitarian theory is practical but also dangerous if taken too far.
A. Risk of Sacrificing Justice
If punishment is justified only by consequences, then justice may be abandoned when inconvenient. Leaders may argue that prosecutions should be dropped for stability, diplomacy, or political compromise.
This risks turning victims into bargaining chips.
B. Weak Deterrence Evidence
The deterrent effect of international criminal law is difficult to prove. Some perpetrators commit atrocities despite legal risk. Others believe they will never be prosecuted.
This does not make deterrence irrelevant, but it weakens any theory that depends entirely on deterrence.
C. Instrumentalization of Trials
Trials should determine guilt, not merely produce political messages. A utilitarian approach may tempt states or institutions to use prosecutions symbolically while neglecting due process.
D. Peace Without Justice May Be Unstable
Avoiding prosecution may produce short-term calm but long-term resentment. Impunity can encourage recurrence, denial, and revenge.
In the Philippine context, unresolved historical abuses continue to shape political conflict. This suggests that durable peace requires some form of justice.
XIII. The Philippine Synthesis: Constitutional Complementarity
The best approach for the Philippines is neither purely fundamentalist nor purely utilitarian. It is a constitutional synthesis.
This synthesis begins with non-negotiable principles:
- human dignity;
- accountability;
- due process;
- legality;
- fair trial;
- protection of civilians;
- prohibition of torture, enforced disappearance, and extrajudicial killing;
- rejection of impunity for international crimes.
These are fundamentalist commitments.
But the synthesis also recognizes practical needs:
- genuine domestic proceedings;
- institutional capacity;
- witness protection;
- prosecutorial prioritization;
- peace-building;
- victim participation;
- reparations;
- security sector reform;
- public education;
- coordination between domestic and international mechanisms.
These are utilitarian commitments.
The result is a Philippine model of ICL that should be principled in ends and practical in means.
XIV. Domestic Prosecution as the Primary Philippine Mechanism
A serious Philippine approach to international criminal law must strengthen domestic prosecution.
This requires several elements.
A. Specialized Capacity
International crimes are complex. Prosecutors, judges, investigators, forensic experts, and defense counsel need specialized training in:
- international humanitarian law;
- crimes against humanity;
- genocide;
- command responsibility;
- military and police structures;
- documentary evidence;
- digital evidence;
- mass victim cases;
- trauma-informed interviewing;
- witness protection.
B. Independent Investigation
Atrocity cases often involve state actors. Independence is essential. Investigations must not be controlled by the same institutions implicated in the alleged crimes.
C. Witness and Victim Protection
Without protection, witnesses may be silenced. The Philippines must treat witness protection as central, not incidental.
Protection should include:
- relocation where needed;
- confidentiality measures;
- psychosocial support;
- protection from retaliation;
- secure handling of statements;
- safeguards for families.
D. Command-Level Evidence
Investigations should not stop at direct perpetrators. They should examine orders, policies, communications, incentives, patterns, omissions, and cover-ups.
E. Complementarity Readiness
If the Philippines wants domestic jurisdiction to be respected internationally, domestic proceedings must be genuine. Formal investigation is not enough. There must be real willingness and ability to prosecute those most responsible.
XV. Sentencing and Punishment
Sentencing in international criminal law reflects both theories.
A fundamentalist approach emphasizes proportionality: punishment must reflect the gravity of the crime and culpability of the offender.
A utilitarian approach emphasizes deterrence, incapacitation, rehabilitation where possible, and public confidence.
Relevant sentencing considerations may include:
- number of victims;
- cruelty of the acts;
- vulnerability of victims;
- discriminatory intent;
- abuse of authority;
- leadership role;
- duration of criminal conduct;
- degree of participation;
- remorse or cooperation;
- efforts to conceal crimes;
- impact on communities;
- mitigating circumstances.
In the Philippines, sentencing must comply with domestic statutory penalties and constitutional limitations. Punishment cannot be arbitrary, cruel, degrading, or disproportionate.
XVI. Victims, Reparations, and Restorative Dimensions
International criminal law should not be reduced to imprisonment. Victims often need more.
A complete Philippine accountability framework should include:
- restitution;
- compensation;
- rehabilitation;
- satisfaction;
- guarantees of non-repetition;
- memorialization;
- public acknowledgment;
- access to truth;
- institutional reform.
Fundamentalism supports reparations because justice requires repair.
Utilitarianism supports reparations because they promote healing, trust, and social stability.
Victim participation must be meaningful but must not override the accused’s right to a fair trial. The court must balance recognition with procedural discipline.
XVII. International Criminal Law and Sovereignty
Sovereignty is not the enemy of international criminal law. Properly understood, sovereignty includes the duty to protect people within the state’s jurisdiction.
A state that investigates, prosecutes, and prevents atrocity strengthens its sovereignty. A state that shields atrocity weakens the legitimacy of its sovereignty.
In the Philippine context, sovereignty should not be invoked as a shield against accountability. Nor should international accountability be used casually to disregard domestic institutions. The correct principle is complementarity: domestic courts first, international mechanisms when domestic remedies are not genuine.
XVIII. Relationship Between International Human Rights Law, International Humanitarian Law, and International Criminal Law
These fields overlap but are distinct.
A. International Human Rights Law
Human rights law applies in peace and conflict. It regulates how states treat individuals. Violations may include arbitrary detention, torture, extrajudicial killing, enforced disappearance, and denial of due process.
B. International Humanitarian Law
International humanitarian law applies during armed conflict. It regulates conduct of hostilities and protects persons not or no longer participating in hostilities.
C. International Criminal Law
International criminal law imposes individual criminal responsibility for serious violations, such as war crimes, crimes against humanity, and genocide.
In the Philippines, all three bodies of law may apply simultaneously. For example, an unlawful killing during armed conflict may be:
- a human rights violation;
- a violation of international humanitarian law;
- murder under domestic law;
- a war crime under RA 9851;
- potentially part of a crime against humanity if committed as part of a widespread or systematic attack against civilians.
XIX. Legal Education and Institutional Culture
A Philippine approach to ICL must include legal education.
Law schools, military academies, police training institutions, prosecutor training programs, and judicial education bodies should teach:
- international humanitarian law;
- human rights law;
- international criminal law;
- command responsibility;
- rights of detainees;
- protection of civilians;
- rules on use of force;
- superior orders;
- accountability of public officers.
This serves both theories. It reflects a fundamental commitment to human dignity and a utilitarian strategy of prevention.
XX. The Role of Courts
Philippine courts play a central role in giving effect to international criminal law.
They must ensure:
- legality;
- jurisdiction;
- due process;
- fair trial;
- protection of victims and witnesses;
- correct interpretation of RA 9851;
- consistency with constitutional rights;
- appropriate use of international law;
- reasoned judgments.
Courts must avoid two extremes.
They must not trivialize international crimes by treating them as ordinary disputes.
But they must also not dilute procedural safeguards because the crimes are grave.
The legitimacy of ICL depends on fairness.
XXI. The Role of Prosecutors
Prosecutors are gatekeepers. In international crimes, prosecutorial discretion must be principled.
A good prosecutorial strategy should identify:
- the most responsible persons;
- representative incidents;
- patterns of criminal conduct;
- linkage evidence;
- victim communities;
- available witnesses;
- documentary and digital evidence;
- institutional responsibility;
- feasible charges.
Overcharging may weaken cases. Undercharging may erase the international character of crimes. Prosecutors must choose charges that are legally accurate and evidentially sustainable.
XXII. The Role of Defense Counsel
Defense counsel are essential to the legitimacy of international criminal law. Atrocity prosecutions must not become show trials.
Defense counsel protect:
- presumption of innocence;
- confrontation of evidence;
- equality of arms;
- legality;
- proof beyond reasonable doubt;
- protection against retroactive punishment;
- rights against self-incrimination;
- fair sentencing.
A fundamentalist theory properly understood does not oppose defense rights. Justice requires that only the guilty be punished.
A utilitarian theory also supports defense rights because unfair trials undermine legitimacy and reduce public trust.
XXIII. Evidentiary Challenges
International crimes are difficult to prove.
Common evidentiary problems include:
- destroyed records;
- intimidated witnesses;
- trauma and memory issues;
- chain-of-command ambiguity;
- coded language;
- plausible deniability;
- lack of forensic capacity;
- mass graves or missing bodies;
- institutional non-cooperation;
- digital misinformation;
- political pressure.
Philippine institutions need stronger forensic, archival, and digital investigation capacity. International crimes often require pattern evidence, linkage evidence, expert testimony, and contextual analysis.
XXIV. Command Responsibility in Detail
Command responsibility deserves special attention in the Philippine context.
It is not liability merely because one holds a high position. It requires legally defined elements.
Generally, the prosecution must establish:
- A superior-subordinate relationship;
- The subordinate committed or was about to commit crimes;
- The superior knew or had reason to know, depending on the applicable standard;
- The superior failed to take necessary and reasonable measures to prevent the crimes or punish the perpetrators.
This doctrine is especially relevant where direct orders are difficult to prove. Leaders may avoid written commands, use coded instructions, or rely on institutional expectations. Command responsibility ensures that superiors cannot escape liability by deliberate blindness or failure to supervise.
However, courts must apply it carefully. It must not become automatic guilt by hierarchy. Proof remains essential.
XXV. International Crimes and Ordinary Crimes: Why Classification Matters
Some may ask: why prosecute under international criminal law when ordinary criminal law already punishes murder, rape, torture, kidnapping, or serious injuries?
Classification matters for several reasons.
First, international crimes capture context. A murder committed as part of a widespread or systematic attack is not merely an isolated killing.
Second, international crimes identify patterns and policies.
Third, they recognize collective victimization without imposing collective guilt.
Fourth, they allow responsibility to reach leaders and organizers.
Fifth, they communicate the gravity of the offense.
Sixth, they may affect prescription, jurisdiction, defenses, and penalties.
Seventh, they align domestic law with international obligations.
In the Philippines, ordinary criminal law remains important, but it may be inadequate where crimes are systematic, policy-driven, or conflict-related.
XXVI. Amnesty and International Crimes
Amnesty is often discussed in peace processes. It can be a useful tool for ending rebellion or political conflict. But international law places limits on amnesty for grave crimes.
A Philippine legal framework should distinguish between:
- rebellion or political offenses;
- ordinary crimes;
- crimes involving private violence;
- gross human rights violations;
- war crimes;
- crimes against humanity;
- genocide.
Amnesty for ordinary political offenses may be compatible with peace. Blanket amnesty for international crimes is much harder to justify.
From a fundamentalist perspective, such amnesty denies justice.
From a utilitarian perspective, it may produce short-term peace but long-term impunity.
A balanced approach may allow conditional, limited, truth-linked, and non-atrocity amnesties while preserving accountability for the gravest crimes.
XXVII. Philippine Withdrawal from the ICC: Theoretical Implications
The Philippine withdrawal from the Rome Statute is one of the most important modern issues in Philippine international criminal law.
The fundamentalist critique is that withdrawal may appear to retreat from accountability for international crimes.
The utilitarian defense may argue that domestic institutions should handle domestic matters and that international involvement may politicize accountability.
The legal question, however, is more precise: whether alleged crimes committed while the Rome Statute was in force remain within the ICC’s temporal jurisdiction and whether domestic investigations are genuine.
The theoretical lesson is that international criminal law cannot depend entirely on continuing political consent. Otherwise, states could escape accountability by withdrawing after alleged crimes occur.
At the same time, the ICC is not a substitute for domestic justice. The best accountability system is one where domestic institutions are strong enough that international intervention becomes unnecessary.
XXVIII. Fundamentalist Theory, Utilitarian Theory, and Philippine Democracy
International criminal law is not only about atrocity. It is also about democracy.
A democratic state must control its coercive institutions. Police, military, intelligence, and detention authorities must operate under law. When grave abuses are tolerated, democracy becomes formal rather than substantive.
Fundamentalism contributes the moral claim: state violence against human dignity is intolerable.
Utilitarianism contributes the institutional claim: unchecked violence corrodes democracy, encourages corruption, produces fear, and destabilizes society.
For the Philippines, ICL should be understood as part of constitutional democracy. It is not foreign to Philippine law. It reinforces the constitutional promise that power is accountable.
XXIX. Recommendations for the Philippine Legal System
A. Strengthen RA 9851 Implementation
The Philippines should ensure that RA 9851 is not merely symbolic. It should be actively understood and used where facts warrant.
B. Create Specialized Investigation and Prosecution Units
International crimes require specialized capacity. Dedicated units could handle atrocity-related investigations, command responsibility analysis, and victim-sensitive prosecution.
C. Improve Witness Protection
Witness protection must be robust, independent, and adequately funded.
D. Integrate ICL into Judicial and Prosecutorial Training
Judges and prosecutors should receive regular training on international crimes, evidence, and command responsibility.
E. Preserve Records
The state should strengthen archival, forensic, and digital preservation systems, especially for conflict-related and human rights cases.
F. Ensure Genuine Domestic Remedies
Domestic proceedings should be real, not performative. Genuineness requires independence, impartiality, seriousness, and willingness to pursue those most responsible.
G. Link Criminal Justice with Reparations
Victims need more than convictions. Reparations, rehabilitation, truth, and guarantees of non-repetition should accompany accountability.
H. Protect Due Process
The seriousness of international crimes must not weaken constitutional rights. Fair trial is indispensable.
I. Clarify Amnesty Limits
Peace agreements should clearly exclude genocide, crimes against humanity, serious war crimes, torture, enforced disappearance, and other grave crimes from blanket amnesty.
J. Promote Public Legal Literacy
The public should understand that international criminal law is not anti-sovereignty. It is a mechanism for protecting human beings from the worst abuses of power.
XXX. Conclusion
Fundamentalist and utilitarian theories offer different but complementary explanations for international criminal law.
The fundamentalist theory insists that certain crimes must be punished because justice demands it. It is rooted in dignity, moral responsibility, and the intrinsic wrongfulness of atrocity.
The utilitarian theory insists that punishment must serve social purposes. It is concerned with deterrence, prevention, institutional reform, peace, victim recognition, and the maintenance of legal order.
In the Philippine context, both theories are necessary.
A purely fundamentalist approach may become rigid if it ignores institutional realities, peace processes, evidentiary constraints, and the practical needs of victims.
A purely utilitarian approach may become dangerous if it sacrifices justice for convenience, political stability, or sovereignty rhetoric.
The better Philippine approach is a constitutional synthesis: grave crimes must be genuinely investigated and prosecuted because justice requires it, and because accountability is necessary to prevent recurrence, strengthen democracy, protect victims, and preserve the rule of law.
International criminal law is therefore not an external imposition on Philippine legal order. It is consistent with the deepest commitments of Philippine constitutionalism: human dignity, accountability, due process, civilian supremacy, adherence to international law, and the rejection of impunity.