Harry Roque and jus cogens

Herminio Lopez Roque, Jr, a.k.a Harry was born in the Philippines on 21 October 1966.  That is probably why he is more of a compulsive Scorpio than a harmonious Libra, his zodiac sign.  An undergrad of the University of Michigan, he read law at the University of Philippines where he later taught public international law for 15 years. He is married and has two children.

Atty. Roque was briefly a congressman for the Kabayan (Party List) which he left acrimoniously.  He was appointed presidential spokesman in October 2017. There were rumors that he wanted to run for the Senate, that was why he used to be associated with either the People’s Reform Party (PRP) or the Hugpong ng Pagbabago of Davao Mayor Sara Duterte Castro.

During his much younger days, the cherubic-faced Atty.  Harry Roque had forays in the field of human rights.  He was the truculent chairman of the Philippine Coalition for the International Criminal Court (PCICC) which promoted Philippine membership to the International Criminal Court (ICC). Alas, last March 2019, President Rodrigo Duterte unilaterally withdrew the Philippines from the ICC, without Senate approval.  On cue, Atty. Roque supinely supported Pres. Duterte’s decision and denigrated ICC’s efforts to investigate extra judicial killings. He was rewarded with a presidential nomination   to the International Law Commission of the United Nations

More than 200 civic groups are actively objecting to the nomination of Harry Roque,  among them the FLAG (Free Legal Assistance Group). In its FaceBook page, FLAG posted that Roque, “does not possess qualifications for a seat at the International Law Commission despite his having a law degree.  He is a political partisan who has actively demonstrated contempt for the rule of law.  He has defended extrajudicial killings, belittled the ICC by showing his disregard for human rights.  He will bring no honor to the post and will instead tarnish the same irreparably.” FLAG’s chairman, Atty.  Chel Diokno, sent their vehement objections to the UN in New York.  Harry Roque is no avatar of the truth, but an apostle of a president who has shown his contempt for jus cogens.

What is jus cogens?

In English, Jus cogens means compelling law: it is a body of preemptory norms recognized by the community of nations. These norms are fundamental to the preservation and maintenance of the international legal order. Jus cogens cannot be set aside, it cannot be abrogated, much less derogated. Jus cogens can only be amended by new and general norms of international law.

In 2000, under the administration of Pres. Joseph Estrada, the Philippines signed the Rome Statute which created the International Criminal Court (ICC), but not until 2011 did the Senate pass Resolution 546 which formally admitted the Philippines to the  ICC. Pres.  Duterte’s withdrawal does not automatically scrap Resolution 546. The Rome Statute is jus cogens in nature.

The norms and standards of conduct contained in jus cogens are absolute imperatives that prohibit torture, genocide, piracy and slavery. These cannot be swept aside because the violation of jus cogens will destroy humankind. For example, a treaty that allows genocide and racial discrimination, or permits the waging of wars of aggression is absolutely void because of jus cogens.

Preemptory norms that prohibit the commission of crimes and offenses against all humankind emanate from the consensus of nations, from works of publicists and international tribunals. In the sphere of international law, jus cogens occupies the highest hierarchy. It cannot be derogated by customary international law nor by States through international treaties or local and special customs, nor by general customary rules. Jus cogens is an absolute necessity because there must be norms and standards that States cannot dilute and dismiss for their selfish interests or whims. The supreme objective of jus cogens is to protect humankind from any criminal design of the State; it is also directed at limiting the treaty-making powers of States.

Last March, Pres. Duterte suddenly withdrew Philippine membership of the ICC because of preliminary investigations conducted about his bloody war on drugs.

Significantly, the International Law Commission proposes rules and norms to the United Nations, it codifies and develops international laws. Said Commission created the International Criminal Court which in turn sets up tribunals against war crimes, genocide, and crimes against humanity, in general.

Why did   President Duterte nominate his loyal spokesman to a seat at the International Law Commission?  His sponsor expects Atty. Harry Roque, a purported expert of international law, to find ways and means to modify jus cogens.  He might attempt to formulate subtle yet decisive modifications that could soften the character of international criminal law, or bend its long arm.  Atty. Harry Roque’s narrative is moving faster than the speed of life.

(Source: Hofileña.Saul, Jr. International Law, Baybayin Publishing, 2016)