Abstract

International Criminal Law is built on a tension between two moral and legal instincts. The first is fundamentalist: certain crimes are so evil that they must be punished because justice demands it. The second is utilitarian: punishment is justified because it produces beneficial consequences, such as deterrence, prevention, peace, rehabilitation, truth-telling, or institutional order.

In the Philippine context, this tension is not merely theoretical. It affects how the Philippines understands accountability for genocide, crimes against humanity, war crimes, torture, enforced disappearances, extrajudicial killings, command responsibility, transitional justice, peace negotiations, and cooperation with international tribunals. It also shapes debates over the International Criminal Court, domestic prosecution, constitutional due process, sovereignty, human rights, and the limits of state power.

This article explains the two theories, compares them, and applies them to Philippine criminal law, constitutional law, human rights law, and international obligations.

I. Introduction

International Criminal Law differs from ordinary criminal law because it addresses crimes that shock not only a domestic legal order but the conscience of humanity. These include genocide, crimes against humanity, war crimes, aggression, torture, enforced disappearance, and other grave violations of international law. These crimes usually involve state power, organized violence, armed conflict, widespread abuse, or systematic attacks against civilians.

The central question is: why punish?

Two major answers dominate the field.

The fundamentalist theory says that international crimes must be punished because they are morally intolerable. Punishment is required by justice itself. The offender deserves punishment because the act violates fundamental norms of humanity.

The utilitarian theory says that international crimes must be punished because punishment serves useful social purposes. It may deter future atrocities, incapacitate dangerous offenders, prevent impunity, promote peace, vindicate victims, educate society, or strengthen the rule of law.

Both theories appear in international criminal law. Both also appear in Philippine law. The Philippine Constitution, penal statutes, special human rights laws, jurisprudence, and treaty commitments reflect a mixture of retributive justice and social utility.

II. Meaning of International Criminal Law

International Criminal Law is the body of law that imposes individual criminal responsibility for serious violations of international norms. It is different from public international law in general because it does not merely regulate relations among states. It punishes individuals.

Its basic features are:

Individual criminal responsibility Leaders, commanders, public officials, soldiers, police officers, militia members, and private persons may be held liable.
Seriousness of the offense The crimes are not ordinary offenses. They usually involve mass harm, systematic abuse, organized violence, or grave violations of human dignity.
International concern The crimes are treated as offenses against the international community, not only against the territorial state.
Limits on official immunity International criminal law rejects the idea that public office automatically shields a person from responsibility for atrocity crimes.
Complementarity between domestic and international systems Modern international criminal law generally expects domestic courts to act first. International tribunals intervene when domestic systems are unwilling or unable genuinely to prosecute.

In the Philippine setting, international criminal law interacts with the Constitution, the Revised Penal Code, special penal laws, military law, human rights statutes, treaty obligations, and customary international law.

III. The Fundamentalist Theory of International Criminal Law

A. Core Meaning

The fundamentalist theory holds that certain acts are criminal because they violate basic, non-negotiable moral principles. These crimes are not wrong merely because the state has prohibited them. They are wrong because they offend human dignity, humanity, and justice.

Under this theory, punishment is justified because the offender deserves it. The focus is on moral culpability, desert, and retribution.

A fundamentalist approach asks:

Was a fundamental norm violated?
Was the offender morally blameworthy?
Did the crime attack human dignity?
Does justice require punishment regardless of political convenience?
Would non-punishment amount to moral betrayal?

The fundamentalist view is closely associated with the idea that some norms are so basic that they bind all states and persons. These include prohibitions against genocide, torture, slavery, crimes against humanity, and serious war crimes.

B. Philosophical Basis

The fundamentalist theory has roots in natural law, deontological ethics, and retributive justice.

1. Natural law

Natural law holds that certain moral principles exist independently of positive law. Even if a state authorizes atrocities, the acts remain wrong. A statute, decree, executive order, military command, or political policy cannot make genocide, torture, or mass murder morally lawful.

2. Deontological ethics

Deontological ethics focuses on duty. Human beings must not be treated merely as instruments of political, military, or ideological goals. Atrocity crimes are wrong because they reduce persons to objects.

3. Retributive justice

Retributive justice means that punishment is justified because the wrongdoer deserves it. Punishment is not merely a tool for deterrence or social management. It is a moral response to wrongdoing.

C. Fundamentalist View of International Crimes

From the fundamentalist standpoint, international crimes are punished because they attack values that the law must protect absolutely.

1. Genocide

Genocide is wrong because it aims to destroy a protected group. It attacks not only individual victims but the existence of a people as such.

2. Crimes against humanity

Crimes against humanity are wrong because they involve widespread or systematic attacks against civilian populations. They transform state or organizational power into machinery of persecution.

3. War crimes

War crimes are wrong because even armed conflict has moral limits. Combat does not erase human dignity. Civilians, detainees, wounded combatants, medical personnel, and humanitarian workers remain protected.

4. Torture

Torture is wrong because it intentionally breaks the body and will of a person under control of another. It is a direct assault on dignity.

5. Enforced disappearance

Enforced disappearance is wrong because it combines abduction, denial, secrecy, and impunity. It removes a person from legal protection and inflicts continuing suffering on families.

D. Strengths of the Fundamentalist Theory

The fundamentalist theory has several strengths.

First, it affirms that some wrongs are not subject to political bargaining. A state cannot justify mass killing, torture, or persecution by invoking order, security, ideology, emergency, or development.

Second, it places victims at the center of justice. It says that victims are not mere data points in a social policy calculation. Their suffering demands recognition.

Third, it prevents impunity. It rejects the excuse that prosecutions are inconvenient, destabilizing, or politically uncomfortable.

Fourth, it supports universal accountability. It explains why international law may punish even heads of state, generals, ministers, and commanders.

Fifth, it preserves the moral authority of law. Law that refuses to respond to atrocity loses legitimacy.

E. Weaknesses of the Fundamentalist Theory

The fundamentalist theory also has weaknesses.

First, it may become rigid. If punishment is always demanded as a matter of moral desert, it may leave little room for peace negotiations, amnesty debates, restorative justice, or truth commissions.

Second, it may overemphasize punishment and underemphasize prevention. A society may punish offenders yet fail to reform institutions that allowed atrocities.

Third, it may be selective in practice. International criminal law has often been criticized for punishing weaker actors while powerful states and leaders escape accountability.

Fourth, it may not fully address collective and structural causes. Atrocity crimes are often produced by institutions, propaganda, poverty, militarization, discrimination, or authoritarian governance. Individual prosecution alone cannot repair these conditions.

IV. The Utilitarian Theory of International Criminal Law

A. Core Meaning

The utilitarian theory holds that punishment is justified because it produces beneficial consequences. Punishment is not an end in itself. It is a means to achieve social goods.

A utilitarian approach asks:

Will prosecution deter future crimes?
Will punishment prevent impunity?
Will it protect civilians?
Will it incapacitate dangerous offenders?
Will it help restore peace?
Will it strengthen institutions?
Will it promote reconciliation?
Will it educate the public?
Will it encourage compliance with humanitarian and human rights law?

Under this view, criminal law is justified by its effects.

B. Philosophical Basis

The utilitarian theory is associated with consequentialist ethics. An act, rule, or institution is justified if it produces desirable outcomes.

In criminal law, utilitarian purposes include:

Deterrence Punishment discourages offenders and others from committing similar crimes.
Incapacitation Punishment removes dangerous persons from positions where they can cause further harm.
Rehabilitation Punishment may reform offenders.
Expressive condemnation Trials publicly declare that certain acts are unacceptable.
Truth-telling Criminal proceedings may create an authoritative record of atrocities.
Institution-building Prosecutions may strengthen courts, prosecutors, investigators, and legal culture.
Peace and reconciliation Accountability may contribute to durable peace by addressing grievances.

C. Utilitarian View of International Crimes

The utilitarian theory justifies international criminal law because atrocity crimes produce massive social harm. Their punishment is useful because it can prevent repetition and restore confidence in legal order.

For example:

Prosecuting military commanders may encourage compliance with rules of war.
Prosecuting state officials may deter future abuse of public office.
Prosecuting crimes against humanity may warn political leaders that systematic attacks on civilians will have consequences.
Prosecuting enforced disappearances may discourage secret detention networks.
Prosecuting torture may reform police, military, and custodial practices.

D. Strengths of the Utilitarian Theory

The utilitarian theory has several strengths.

First, it is practical. It asks whether punishment actually improves society.

Second, it supports prevention. It looks beyond past wrongdoing and focuses on avoiding future harm.

Third, it accommodates institutional reform. It recognizes that trials alone are insufficient.

Fourth, it can support transitional justice. In societies emerging from dictatorship, armed conflict, or mass abuse, utilitarian reasoning may justify a combination of prosecutions, truth commissions, reparations, vetting, institutional reform, and memorialization.

Fifth, it recognizes the costs of criminal justice. Prosecutions require evidence, witnesses, resources, security, and political will. Utilitarian theory forces policymakers to consider priorities.

E. Weaknesses of the Utilitarian Theory

The utilitarian theory also has weaknesses.

First, it may sacrifice justice for expediency. If prosecution is considered politically costly, utilitarian reasoning may be used to justify impunity.

Second, deterrence is difficult to prove. Leaders who commit atrocity crimes may believe they will win, remain in power, receive protection, or avoid accountability.

Third, utilitarianism may instrumentalize victims. Victims may be treated as tools for social goals rather than as persons entitled to justice.

Fourth, it may justify unequal enforcement. Prosecutors may target only those whose punishment produces strategic benefit.

Fifth, it may weaken the absolute character of fundamental norms. If punishment depends only on consequences, then even grave crimes may be ignored when prosecution is inconvenient.

V. Comparison Between Fundamentalist and Utilitarian Theories

Point of Comparison	Fundamentalist Theory	Utilitarian Theory
Main question	What does justice require?	What consequences will punishment produce?
Basis of punishment	Moral desert	Social utility
Focus	Past wrongdoing	Future effects
Central value	Justice	Prevention and social benefit
View of victims	Victims deserve vindication	Victims are part of broader social repair
View of offender	Offender deserves punishment	Offender is punished to prevent harm
Risk	Rigidity, moral absolutism	Expediency, selective enforcement
Best contribution	Moral clarity	Practical effectiveness

The two theories are often presented as opposites, but in practice they overlap. A legal system may punish because an offender deserves it and because punishment deters future crimes. International criminal law usually combines both.

VI. International Criminal Law as a Hybrid System

International criminal law cannot be fully explained by only one theory. It is both fundamentalist and utilitarian.

It is fundamentalist because it declares that certain acts are intrinsically wrong. Genocide, crimes against humanity, torture, and war crimes are not ordinary policy failures. They are grave wrongs that demand accountability.

It is utilitarian because it seeks to prevent future atrocities, promote peace, strengthen institutions, and build respect for humanitarian norms.

This hybrid character is visible in international tribunals. The Nuremberg trials, the ad hoc tribunals for the former Yugoslavia and Rwanda, hybrid courts, and the International Criminal Court all rely on moral condemnation and practical objectives.

The same hybrid character appears in Philippine law.

VII. Philippine Constitutional Context

A. The Constitution as a Fundamentalist Document

The 1987 Philippine Constitution reflects a strong fundamentalist commitment to human dignity, accountability, and limits on state power.

Several constitutional provisions are relevant.

1. The State values human dignity

The Constitution declares that the State values the dignity of every human person and guarantees full respect for human rights. This supports a fundamentalist view: human dignity is not merely a policy preference but a constitutional value.

2. Due process

No person may be deprived of life, liberty, or property without due process of law. Due process protects both the accused and victims. It prevents arbitrary punishment while ensuring that criminal accountability proceeds through lawful means.

3. Rights of the accused

The Constitution protects the presumption of innocence, the right to counsel, the right against self-incrimination, the right to confront witnesses, and the right to a speedy, impartial, and public trial. These guarantees are crucial in international criminal law because even those accused of atrocity crimes remain rights-bearing persons.

4. Prohibition of torture and secret detention

The Constitution prohibits torture, force, violence, threat, intimidation, or any other means that vitiate free will. It also prohibits secret detention places, solitary, incommunicado, or similar forms of detention.

These rules directly correspond to international criminal law concerns.

5. Accountability of public officers

Public office is a public trust. Public officers must be accountable to the people. This constitutional principle supports criminal accountability for state abuses.

B. The Constitution as a Utilitarian Document

The Constitution also has utilitarian features. It seeks to build institutions that prevent abuse.

These include:

independent courts;
the Commission on Human Rights;
civilian supremacy over the military;
legislative oversight;
constitutional restrictions on martial law;
accountability mechanisms for public officers;
protection of civil liberties;
separation of powers;
local autonomy;
social justice provisions.

These institutions serve preventive and corrective purposes. They are designed not only to punish past wrongs but to prevent future abuse of state power.

VIII. Philippine Statutory Framework Relevant to International Criminal Law

A. Republic Act No. 9851: Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity

Republic Act No. 9851 is the most direct Philippine statute on international criminal law. It criminalizes:

war crimes;
genocide;
crimes against humanity;
related international humanitarian law violations.

It also recognizes principles such as superior responsibility or command responsibility, subject to statutory requirements.

RA 9851 is important because it domesticates core international crimes. It shows that the Philippines does not rely solely on international tribunals. Philippine courts may prosecute these crimes domestically.

Fundamentalist aspect

RA 9851 reflects the view that genocide, crimes against humanity, and war crimes are inherently grave offenses. Their criminalization expresses moral condemnation.

Utilitarian aspect

RA 9851 also serves preventive and institutional purposes. It gives prosecutors and courts tools to address atrocity crimes, educates military and police actors, and aligns domestic law with international humanitarian obligations.

B. Republic Act No. 9745: Anti-Torture Act of 2009

The Anti-Torture Act criminalizes torture and other cruel, inhuman, and degrading treatment or punishment.

Fundamentalist aspect

The law treats torture as an assault on human dignity. Torture is not acceptable even in emergencies or security operations.

Utilitarian aspect

The law seeks to change custodial practices, discipline law enforcement, prevent coerced confessions, and improve accountability.

C. Republic Act No. 10353: Anti-Enforced or Involuntary Disappearance Act of 2012

This law criminalizes enforced or involuntary disappearance. It is significant because enforced disappearance is often associated with state agents or persons acting with state authorization, support, or acquiescence.

Fundamentalist aspect

The law recognizes that disappearance is a grave violation of dignity, liberty, security, family life, and legal personality.

Utilitarian aspect

It deters secret detention, requires accountability, and protects persons from being placed outside the law.

D. Republic Act No. 7438: Rights of Persons Arrested, Detained, or Under Custodial Investigation

This statute protects persons under custodial investigation and reinforces constitutional safeguards.

Its relevance to international criminal law lies in preventing torture, coerced confessions, arbitrary detention, and custodial abuse.

E. Revised Penal Code

The Revised Penal Code remains relevant because many international crimes involve acts also punishable as ordinary crimes, such as murder, homicide, physical injuries, rape, kidnapping, illegal detention, grave coercion, and destruction of property.

However, ordinary penal provisions may be insufficient when crimes are widespread, systematic, or connected with armed conflict. That is why special laws like RA 9851 are necessary.

F. Special Protection and Human Rights Laws

Other Philippine laws may interact with international criminal law, including laws on:

child protection;
anti-trafficking;
violence against women and children;
terrorism and counterterrorism;
data and documentation of human rights violations;
protection of witnesses;
reparations for human rights victims;
military justice.

These laws may not all be “international criminal law” statutes strictly speaking, but they form part of the broader accountability framework.

IX. The Philippine Relationship with the International Criminal Court

The Philippines signed and ratified the Rome Statute of the International Criminal Court, later withdrew from it. The withdrawal raised questions about jurisdiction, sovereignty, complementarity, and accountability.

The key point is that international criminal law operates on the principle that individuals may be liable for crimes of international concern. A state’s withdrawal from a treaty may affect future treaty obligations, but it does not erase domestic criminal law, constitutional duties, or accountability for acts within the period when jurisdiction existed.

A. Fundamentalist Reading

A fundamentalist reading emphasizes that grave crimes cannot be insulated from accountability by political decisions. If crimes against humanity or other atrocity crimes occurred, justice demands investigation and, where evidence warrants, prosecution.

From this view, sovereignty cannot be used as a shield for impunity. Sovereignty exists to protect the people, not to permit crimes against them.

B. Utilitarian Reading

A utilitarian reading asks whether ICC involvement promotes accountability, deterrence, truth, and institutional reform. It also considers practical consequences: cooperation, diplomatic relations, domestic legitimacy, political polarization, and the ability of national institutions to prosecute.

From this view, the best system is one in which Philippine institutions genuinely investigate and prosecute serious crimes. International intervention becomes less necessary when domestic accountability is real, independent, and effective.

C. Complementarity

Complementarity is central. The ICC is generally not designed to replace national courts. It acts when a state is unwilling or unable genuinely to carry out investigation or prosecution.

In Philippine terms, complementarity places pressure on domestic institutions: the Department of Justice, Ombudsman, courts, prosecutors, law enforcement agencies, Congress, the Commission on Human Rights, and military justice mechanisms must function credibly.

X. Sovereignty and International Criminal Law

Sovereignty is often invoked in debates about international criminal law. In the Philippine context, sovereignty is constitutionally and politically significant. However, modern sovereignty is not absolute.

A state has sovereignty, but it also has duties. These include duties to protect its people, respect human rights, comply with treaties, and punish serious crimes.

A. Fundamentalist View of Sovereignty

The fundamentalist theory limits sovereignty by moral principles. A state cannot claim sovereign authority to commit genocide, torture, enforced disappearance, or crimes against humanity. State power is legitimate only when exercised within the bounds of human dignity.

B. Utilitarian View of Sovereignty

The utilitarian theory treats sovereignty as useful when it promotes order, accountability, and welfare. If sovereignty is used to protect impunity, it loses functional legitimacy. If domestic institutions prosecute serious crimes effectively, sovereignty is strengthened.

Thus, international criminal law does not necessarily destroy sovereignty. It may discipline sovereignty by requiring that state power be exercised responsibly.

XI. Command Responsibility in the Philippine Context

Command responsibility is one of the most important doctrines in international criminal law. It holds superiors liable when they fail to prevent or punish crimes committed by subordinates, subject to required elements.

In the Philippine context, command responsibility is relevant to military operations, police operations, counterinsurgency, counterterrorism, detention facilities, and internal security campaigns.

A. Fundamentalist Justification

The fundamentalist theory supports command responsibility because leaders who knowingly allow atrocities are morally blameworthy. A superior who has authority but permits murder, torture, rape, forced disappearance, or attacks on civilians cannot hide behind physical distance from the crime scene.

B. Utilitarian Justification

The utilitarian theory supports command responsibility because it incentivizes leaders to control subordinates. It promotes discipline, compliance training, reporting systems, proper investigations, and accountability within armed forces and law enforcement agencies.

C. Due Process Limits

Command responsibility cannot mean guilt by association. Philippine constitutional law requires proof, fair trial, and personal culpability. Liability must be based on legal elements, not merely rank, title, or political position.

XII. Superior Orders

A common issue in atrocity cases is whether a subordinate may avoid liability by claiming obedience to orders.

International criminal law generally rejects superior orders as a complete defense for manifestly unlawful acts, though it may sometimes affect mitigation depending on circumstances.

A. Fundamentalist Analysis

Under the fundamentalist theory, a person must not obey orders to commit atrocities. No command can make torture, massacre, rape, enforced disappearance, or intentional attacks on civilians morally lawful.

B. Utilitarian Analysis

Under the utilitarian theory, rejecting superior orders deters blind obedience and encourages lawful refusal. It also helps build professional military and police cultures.

C. Philippine Relevance

In the Philippines, this issue may arise in military, police, jail, or counterinsurgency settings. The legal system must balance discipline in hierarchical institutions with the principle that unlawful orders must not be obeyed.

XIII. Due Process, Fair Trial, and the Rights of the Accused

International criminal law is often associated with victims, but it must also protect the accused. A system that punishes atrocity crimes through unfair proceedings undermines its own legitimacy.

Philippine constitutional rights are crucial:

presumption of innocence;
right to counsel;
right to be informed of charges;
right to confront witnesses;
right against self-incrimination;
right to compulsory process;
right to speedy, impartial, and public trial;
protection against ex post facto laws;
protection against double jeopardy.

A. Fundamentalist Perspective

The fundamentalist theory requires fair trial because justice is not vengeance. Punishing the guilty is morally meaningful only if guilt is proven lawfully.

B. Utilitarian Perspective

The utilitarian theory also requires fair trial because unfair prosecutions create instability, delegitimize courts, and may turn accused persons into political martyrs.

Thus, both theories support due process, though for different reasons.

XIV. Victims in International Criminal Law

Victims occupy a central place in international criminal law. Their interests include:

truth;
justice;
reparations;
recognition;
protection;
participation;
memorialization;
guarantees of non-repetition.

A. Fundamentalist View of Victims

The fundamentalist view emphasizes vindication. Victims suffered a grave wrong, and punishment recognizes the moral seriousness of that wrong.

B. Utilitarian View of Victims

The utilitarian view emphasizes healing, social repair, and prevention. Victim participation may improve truth-finding, public legitimacy, and reconciliation.

C. Philippine Context

The Philippine legal system includes mechanisms for victim protection and participation, though implementation remains difficult. Witness protection, reparations, access to counsel, documentation, forensic capacity, and protection from reprisals are essential in serious human rights and international criminal law cases.

XV. Transitional Justice and the Philippines

Transitional justice refers to legal and political measures used by societies confronting legacies of mass abuse, dictatorship, armed conflict, or systematic violations.

It may include:

criminal prosecutions;
truth commissions;
reparations;
institutional reform;
vetting of abusive officials;
memorialization;
public apologies;
guarantees of non-repetition.

A. Martial Law Legacy

The Philippine experience under martial law remains central to discussions of state violence, accountability, reparations, and historical memory. The post-authoritarian constitutional order reflects both fundamentalist and utilitarian impulses: condemn the abuses, compensate victims, prevent recurrence, and rebuild democratic institutions.

B. Internal Armed Conflict

The Philippines has long experienced internal armed conflicts involving state forces, communist insurgents, Moro armed groups, extremist organizations, militias, and private armed groups. International humanitarian law and domestic statutes are relevant to alleged violations committed by any side.

C. Peace Processes

Peace negotiations raise difficult questions. Should accountability be prioritized even if it complicates peace? Should amnesty be allowed? Which crimes are non-amnestiable? How should victims be heard?

A purely fundamentalist approach may insist on prosecution. A purely utilitarian approach may favor compromise for peace. A balanced approach recognizes that peace without accountability may be fragile, while accountability without political settlement may be incomplete.

XVI. Amnesty and International Criminal Law

Amnesty is constitutionally recognized in the Philippines, but its use in relation to international crimes raises serious issues.

A. Fundamentalist Objection

The fundamentalist theory is skeptical of amnesty for grave international crimes. If crimes are fundamentally wrong, the state should not erase accountability through political compromise.

B. Utilitarian Defense

The utilitarian theory may defend limited amnesty if it helps end conflict, encourages disarmament, reveals truth, or prevents greater harm. However, utilitarian reasoning does not automatically justify blanket impunity.

C. Balanced Philippine Approach

A principled approach would distinguish between political offenses and grave international crimes. Ordinary rebellion-related offenses may be treated differently from massacres, torture, sexual violence, enforced disappearance, or deliberate attacks on civilians.

XVII. The Role of Philippine Courts

Philippine courts are central to the domestic enforcement of international criminal law.

Their functions include:

interpreting RA 9851 and related statutes;
applying constitutional guarantees;
determining admissibility of evidence;
protecting witnesses;
resolving jurisdictional questions;
reviewing executive action;
enforcing accountability;
harmonizing domestic law with international obligations.

A. Fundamentalist Role

Courts serve justice by declaring guilt and imposing punishment where evidence proves responsibility.

B. Utilitarian Role

Courts also strengthen public trust, deter abuse, clarify legal standards, and educate institutions.

C. Challenges

Philippine courts face challenges in complex atrocity cases:

witness intimidation;
delay;
evidentiary difficulty;
forensic limitations;
political pressure;
chain-of-command proof;
security risks;
resource constraints;
coordination between agencies;
protection of judges, prosecutors, and witnesses.

XVIII. The Role of Prosecutors and Investigators

International criminal law cases require specialized investigation. Ordinary case-building methods may be insufficient.

Necessary capacities include:

crime pattern analysis;
linkage evidence;
command structure mapping;
documentary evidence preservation;
digital evidence handling;
forensic pathology;
witness protection;
victim-sensitive interviewing;
international humanitarian law expertise;
coordination with human rights bodies.

A. Fundamentalist Mandate

Prosecutors must pursue accountability because grave crimes deserve legal response.

B. Utilitarian Mandate

Prosecutors must also choose strategies that produce meaningful institutional effects. They may prioritize those most responsible rather than only low-level direct perpetrators.

XIX. The Commission on Human Rights

The Commission on Human Rights has a constitutional role in investigating human rights violations involving civil and political rights.

Although it is not a prosecutorial court, it contributes to international criminal law accountability by:

documenting violations;
assisting victims;
conducting investigations;
issuing reports;
recommending prosecution;
educating the public;
monitoring state compliance;
preserving institutional memory.

A. Fundamentalist Function

The Commission affirms the dignity of victims and the wrongfulness of abuses.

B. Utilitarian Function

It helps prevent recurrence by exposing patterns, recommending reforms, and strengthening rights culture.

XX. International Humanitarian Law in Philippine Armed Conflicts

International humanitarian law applies in armed conflict. In the Philippines, this is relevant to non-international armed conflicts involving government forces and organized armed groups.

Key principles include:

Distinction Parties must distinguish between civilians and combatants.
Proportionality Attacks must not cause excessive civilian harm in relation to anticipated military advantage.
Precautions in attack Parties must take feasible precautions to minimize civilian harm.
Humane treatment Persons not taking part in hostilities must be treated humanely.
Protection of detainees Detainees must not be tortured, murdered, disappeared, or humiliated.
Protection of humanitarian personnel Medical and humanitarian actors must be respected.

A. Fundamentalist Justification

Even war has moral boundaries. Necessity does not erase humanity.

B. Utilitarian Justification

Compliance with humanitarian law reduces suffering, prevents cycles of revenge, protects civilians, and maintains discipline.

XXI. Crimes Against Humanity and Philippine Legal Debates

Crimes against humanity are especially relevant because they do not require an armed conflict. They involve certain acts committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack.

Possible underlying acts may include murder, extermination, imprisonment, torture, rape, persecution, enforced disappearance, and other inhumane acts, depending on the applicable legal text.

A. Fundamentalist View

A widespread or systematic attack against civilians is a profound betrayal of law and humanity. When state or organizational power is used against civilians, punishment becomes a moral necessity.

B. Utilitarian View

Punishing crimes against humanity deters state terror, discourages institutionalized abuse, and warns public officials that systematic violations cannot be treated as ordinary policy.

C. Philippine Relevance

The concept may arise in discussions of widespread killings, systematic repression, mass detention, persecution of groups, or organized attacks against civilian communities. Legal assessment requires evidence of scale, pattern, policy, organization, knowledge, and linkage to accused persons.

XXII. Genocide in the Philippine Context

Genocide requires specific intent to destroy, in whole or in part, a protected group as such. This special intent makes genocide difficult to prove.

In the Philippine context, genocide is less commonly discussed than crimes against humanity, war crimes, torture, or enforced disappearance. However, the prohibition remains important, especially in relation to ethnic, religious, or national groups.

A. Fundamentalist View

Genocide is the paradigmatic international crime because it targets the existence of a group.

B. Utilitarian View

Criminalizing genocide deters group destruction, protects pluralism, and reinforces the international commitment that no people may be eliminated.

XXIII. War Crimes in the Philippine Context

War crimes are serious violations of international humanitarian law. They may occur in internal armed conflicts, not only international wars.

Examples include:

intentionally directing attacks against civilians;
torture or cruel treatment;
murder of persons not taking part in hostilities;
taking hostages;
attacking humanitarian personnel;
recruiting or using children in hostilities;
pillage;
outrages upon personal dignity;
sentencing without fair trial guarantees.

A. State and Non-State Actors

War crimes may be committed by government forces or organized armed groups. International criminal law does not apply only to the state. Non-state armed groups may also incur responsibility.

B. Fundamentalist View

War crimes violate the minimum moral code of armed conflict.

C. Utilitarian View

Punishing war crimes encourages discipline, protects civilians, and reduces brutality.

XXIV. Torture, Police Power, and National Security

Torture often appears in contexts of interrogation, detention, counterinsurgency, anti-drug operations, counterterrorism, or custodial investigation.

A. Fundamentalist View

Torture is absolutely wrong because it destroys dignity and bodily integrity.

B. Utilitarian View

Torture is also practically harmful. It produces unreliable information, corrupts institutions, invites retaliation, undermines prosecutions, and destroys public trust.

C. Philippine Legal Importance

Philippine law rejects coerced confessions and protects persons under custodial investigation. This reflects both moral and practical reasons. A justice system that tolerates torture cannot be trusted.

XXV. Enforced Disappearance and the Problem of Secrecy

Enforced disappearance is uniquely harmful because it creates uncertainty. The victim is removed from protection, while the family is trapped in continuing anguish.

A. Fundamentalist View

The wrong lies in placing a human being outside the law.

B. Utilitarian View

Criminalization deters secret detention systems and forces state agencies to maintain records, disclose custody, and respect legal process.

C. Philippine Context

Given the country’s history of political violence, insurgency, militarization, and allegations of state-linked disappearances, the prohibition is especially significant.

XXVI. Extrajudicial Killings and International Criminal Law

Extrajudicial killing is not always a separate international crime by label, but it may constitute murder under domestic law, a human rights violation, a war crime, or a crime against humanity depending on context.

A. Fundamentalist View

The state may not kill outside law. The right to life is foundational.

B. Utilitarian View

Extrajudicial killings weaken law enforcement, destroy due process, encourage impunity, produce fear, and erode trust in institutions.

C. Philippine Relevance

Debates over extrajudicial killings in the Philippines are closely connected with due process, police accountability, command responsibility, crimes against humanity, and the role of domestic and international accountability mechanisms.

XXVII. The Role of Customary International Law

The Philippine Constitution adopts generally accepted principles of international law as part of the law of the land. This makes customary international law relevant domestically.

However, the domestic application of customary international law must be harmonized with constitutional protections, statutory definitions, jurisdictional rules, and due process.

A. Fundamentalist View

Customary international law reflects universal moral prohibitions.

B. Utilitarian View

Customary law promotes predictable standards across states and reduces safe havens for perpetrators.

XXVIII. The Principle of Legality

The principle of legality means no one may be punished for an act that was not criminal at the time it was committed. It includes prohibitions against ex post facto criminal laws and vague criminal statutes.

This principle is especially important in international criminal law because atrocity prosecutions often occur after political transitions.

A. Fundamentalist View

Even morally guilty persons must be punished only according to law. Justice requires legality.

B. Utilitarian View

Legality promotes predictability, legitimacy, and trust in courts.

C. Philippine Context

Philippine constitutional law strongly protects against ex post facto punishment. Therefore, domestic prosecution of international crimes must be anchored in valid law applicable at the relevant time, subject to recognized principles of international law.

XXIX. Selectivity and Double Standards

International criminal law is often criticized for selectivity. Some perpetrators are prosecuted, while others escape accountability due to power, politics, or geopolitical protection.

A. Fundamentalist Critique

Selective justice is morally defective because all grave wrongs deserve accountability.

B. Utilitarian Response

Even imperfect prosecutions may deter some crimes and produce some accountability. However, excessive selectivity can delegitimize the system.

C. Philippine Implication

Domestic accountability is crucial. A state that credibly prosecutes its own officials and non-state actors reduces the need for external intervention and strengthens public trust.

XXX. Punishment, Sentencing, and Penological Goals

Sentencing in international criminal law reflects both fundamentalist and utilitarian goals.

Relevant considerations include:

gravity of the crime;
role of the accused;
number and vulnerability of victims;
cruelty;
discriminatory intent;
abuse of authority;
command position;
remorse;
cooperation;
reparative acts;
mitigating circumstances;
need for deterrence.

A. Fundamentalist Sentencing

Punishment must be proportionate to moral blameworthiness.

B. Utilitarian Sentencing

Punishment must deter future violations, incapacitate dangerous offenders, and communicate legal norms.

C. Philippine Considerations

Philippine sentencing must follow statutory penalties, constitutional limits, and due process. For international crimes under domestic law, courts must impose penalties authorized by statute.

XXXI. Reparations and Restorative Dimensions

International criminal law is not only about imprisonment. Victims may need reparations.

Forms of reparations include:

restitution;
compensation;
rehabilitation;
satisfaction;
public apology;
memorialization;
guarantees of non-repetition.

A. Fundamentalist View

Reparations recognize the wrong and affirm the victim’s dignity.

B. Utilitarian View

Reparations help repair society, reduce grievance, and promote reconciliation.

C. Philippine Context

Reparations have special resonance in relation to historical human rights violations, conflict-affected communities, indigenous peoples, displaced civilians, and victims of state or non-state violence.

XXXII. International Criminal Law and Philippine Democracy

International criminal law supports democracy by limiting the use of state violence. A democratic government is not merely one elected by majority vote. It must respect rights, due process, accountability, and human dignity.

A. Fundamentalist Link

Democracy cannot authorize atrocity. Majority will cannot justify torture, massacre, extermination, or enforced disappearance.

B. Utilitarian Link

Accountability prevents authoritarian relapse, professionalizes security forces, strengthens courts, and builds public trust.

XXXIII. International Criminal Law and the War on Drugs

The Philippine anti-drug campaign has been discussed in relation to human rights, criminal justice, policing, and possible international criminal law issues.

A legal analysis must distinguish political accusation from legal proof. For international criminal liability, prosecutors must establish required elements such as the underlying acts, contextual elements, mental elements, and linkage to accused individuals.

A. Fundamentalist Perspective

If state agents or organized actors commit unlawful killings, torture, or systematic attacks against civilians, the wrong is not excused by anti-crime policy. Human dignity and due process remain non-negotiable.

B. Utilitarian Perspective

Extrajudicial violence is counterproductive. It damages law enforcement, corrupts evidence, weakens courts, traumatizes communities, and may fail to address root causes of drug abuse and trafficking.

XXXIV. International Criminal Law and Counterterrorism

Counterterrorism presents another difficult area. States have a duty to protect the public from terrorism. However, counterterrorism operations must comply with human rights law, humanitarian law, and constitutional limits.

A. Fundamentalist View

The evil of terrorism does not authorize torture, enforced disappearance, indiscriminate attacks, or collective punishment.

B. Utilitarian View

Abusive counterterrorism can radicalize communities, produce false intelligence, delegitimize government, and undermine long-term security.

C. Philippine Relevance

The Philippines has faced terrorism and violent extremism, especially in parts of Mindanao. Effective security policy must be lawful, rights-respecting, and accountable.

XXXV. International Criminal Law and Indigenous Peoples

Indigenous peoples may be affected by armed conflict, militarization, displacement, land conflict, development aggression, and attacks on community leaders.

International criminal law may become relevant if abuses rise to the level of war crimes, crimes against humanity, persecution, forced displacement, or other serious violations.

A. Fundamentalist View

Indigenous peoples possess dignity, identity, and collective rights that must not be violated.

B. Utilitarian View

Protecting indigenous communities prevents conflict, preserves social order, and strengthens legitimacy.

XXXVI. International Criminal Law and Gender-Based Crimes

International criminal law recognizes sexual and gender-based violence as serious crimes, including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence, depending on the applicable legal framework.

A. Fundamentalist View

Sexual violence in conflict or systematic attacks is an assault on bodily autonomy and human dignity.

B. Utilitarian View

Punishing gender-based crimes deters abuse, breaks cultures of silence, improves military discipline, and supports survivor recovery.

C. Philippine Relevance

Philippine law has strong domestic protections against rape, trafficking, violence against women and children, and sexual abuse. These domestic protections may intersect with international criminal law when crimes occur in armed conflict or widespread/systematic attacks.

XXXVII. Children and International Criminal Law

Children are specially protected under both domestic and international law.

International criminal law concerns include:

recruitment and use of child soldiers;
attacks on schools;
sexual violence against children;
trafficking;
forced displacement;
killing or maiming of children;
detention of minors in conflict settings.

A. Fundamentalist View

Children possess special vulnerability and dignity. Crimes against them are especially grave.

B. Utilitarian View

Protecting children prevents cycles of violence and supports long-term social recovery.

XXXVIII. The Military, Police, and Professional Responsibility

The Philippine military and police are central institutions in preventing international crimes.

A lawful security institution must have:

clear rules of engagement;
human rights and IHL training;
accountability systems;
reporting duties;
independent investigation mechanisms;
protection for whistleblowers;
proper documentation;
prohibition of unofficial detention;
command discipline;
cooperation with courts.

A. Fundamentalist Rationale

State agents are entrusted with public power. Abuse of that power is morally grave.

B. Utilitarian Rationale

Professional discipline prevents liability, improves operational effectiveness, protects civilians, and strengthens legitimacy.

XXXIX. Evidence in International Criminal Law Cases

International crimes are difficult to prove because they often involve complex patterns and powerful perpetrators.

Important forms of evidence include:

eyewitness testimony;
survivor testimony;
forensic evidence;
medical records;
autopsy reports;
military or police documents;
command orders;
radio logs;
digital communications;
photographs and videos;
satellite imagery;
chain-of-command evidence;
pattern evidence;
expert testimony;
public speeches;
policy documents;
detention records;
NGO and human rights reports, subject to evidentiary rules.

A. Fundamentalist Importance

Proof ensures that punishment is deserved and not arbitrary.

B. Utilitarian Importance

Reliable evidence strengthens legitimacy and prevents denialism.

XL. Defenses in International Criminal Law

Possible defenses or issues may include:

lack of jurisdiction;
lack of required intent;
mistaken identity;
alibi;
duress;
mental incapacity;
self-defense;
lawful military necessity;
lack of nexus to armed conflict;
absence of widespread or systematic attack;
absence of command authority;
inability to prevent or punish;
superior orders, subject to limitations;
prescription issues, where applicable;
due process violations.

A fundamentalist approach must still respect defenses because justice requires accurate attribution of guilt. A utilitarian approach must respect defenses because wrongful convictions damage the system.

XLI. Prescription and Non-Prescription

International crimes are often treated as imprescriptible because their gravity justifies prosecution despite the passage of time.

A. Fundamentalist View

Time should not erase accountability for atrocity.

B. Utilitarian View

Non-prescription prevents perpetrators from waiting out justice and helps societies confront historical wrongs.

C. Philippine Context

Whether a specific offense prescribes depends on the applicable statute and legal framework. For international crimes under special law, the governing statutory text must be examined.

XLII. Universal Jurisdiction

Universal jurisdiction allows a state to prosecute certain grave crimes regardless of where they were committed and regardless of the nationality of the offender or victim, subject to domestic law.

A. Fundamentalist View

Some crimes offend all humanity; therefore, all states have an interest in accountability.

B. Utilitarian View

Universal jurisdiction reduces safe havens for perpetrators.

C. Philippine Context

The Philippines may exercise jurisdiction according to its Constitution, statutes, treaty obligations, and recognized principles of international law. Domestic legislation is essential for effective prosecution.

XLIII. The Principle of Complementarity and Domestic Responsibility

Complementarity is one of the most important ideas for the Philippines. It means that domestic accountability comes first.

A state can avoid external intervention not by denial, but by genuine investigation and prosecution.

A. Fundamentalist Meaning

Justice should be done, whether domestically or internationally.

B. Utilitarian Meaning

Domestic prosecution is often more effective because it is closer to victims, evidence, language, culture, institutions, and social repair.

C. Philippine Institutional Challenge

Complementarity requires more than formal proceedings. Investigations must be genuine, independent, impartial, and capable of reaching those most responsible.

XLIV. Theories Applied to Philippine Legal Education

Philippine legal education should teach international criminal law not as a remote foreign subject but as part of constitutional democracy.

Students should understand:

RA 9851;
human rights statutes;
IHL principles;
command responsibility;
crimes against humanity;
war crimes;
torture;
enforced disappearance;
fair trial rights;
victim protection;
transitional justice;
ICC complementarity;
Philippine constitutional constraints.

The fundamentalist theory teaches moral seriousness. The utilitarian theory teaches institutional design and prevention.

XLV. Theories Applied to Policymaking

Philippine policymakers should use both theories.

A purely fundamentalist policy may demand punishment but neglect resources and implementation.

A purely utilitarian policy may prioritize order or peace but compromise justice.

A balanced policy should include:

clear criminal statutes;
independent prosecution;
forensic capacity;
witness protection;
judicial training;
military and police compliance systems;
victim reparations;
public documentation;
human rights education;
international cooperation;
safeguards against political misuse.

XLVI. Theories Applied to Judicial Interpretation

When Philippine courts interpret laws related to international criminal law, they may consider both theories.

A. Fundamentalist Interpretation

Courts should interpret grave crimes in a way that respects human dignity, accountability, and the seriousness of international norms.

B. Utilitarian Interpretation

Courts should interpret laws in a way that promotes effective enforcement while preserving due process, legality, and institutional legitimacy.

C. Avoiding Extremes

Courts must avoid two extremes:

Impunity through excessive technical avoidance Courts should not interpret accountability laws so narrowly that they become useless.
Conviction through moral outrage alone Courts must not convict without proof beyond reasonable doubt.

XLVII. Critique of Fundamentalism in the Philippine Setting

Fundamentalism is powerful in a country with a history of dictatorship, political violence, and human rights violations. It affirms that abuses are wrong even when committed in the name of security, discipline, ideology, or public order.

However, fundamentalism may become symbolic if not matched by institutions. Moral condemnation alone does not protect witnesses, gather evidence, train prosecutors, fund courts, or reform agencies.

In the Philippines, a purely fundamentalist approach risks producing strong rhetoric but weak enforcement.

XLVIII. Critique of Utilitarianism in the Philippine Setting

Utilitarianism is useful because the Philippine justice system faces real constraints: congestion, delay, limited forensic resources, security risks, political pressure, and uneven access to counsel.

However, utilitarianism may be misused. Officials may argue that accountability should be postponed for stability, peace, security, or development. This can turn utility into impunity.

In the Philippines, a purely utilitarian approach risks allowing grave crimes to be treated as unfortunate but tolerable costs of governance.

XLIX. Toward an Integrated Philippine Theory of International Criminal Law

The best approach is an integrated theory.

International criminal law in the Philippines should be:

Fundamentalist in moral foundation It must affirm that genocide, crimes against humanity, war crimes, torture, enforced disappearance, and systematic killings are intrinsically wrong.
Utilitarian in institutional design It must build systems that prevent recurrence, protect victims, gather evidence, prosecute effectively, and reform abusive institutions.
Constitutional in procedure It must respect due process, legality, fair trial, and rights of the accused.
Victim-centered in orientation It must recognize truth, reparations, participation, and protection.
Democratic in purpose It must limit state violence and strengthen accountable governance.
Complementary in international posture It must show that Philippine institutions can genuinely address international crimes.

L. Practical Implications for the Philippines

A. For Congress

Congress should ensure that Philippine laws on international crimes remain clear, updated, and enforceable. It should provide resources for investigation, prosecution, witness protection, forensic services, and victim reparations.

B. For Courts

Courts should develop expertise in international criminal law, international humanitarian law, digital evidence, command responsibility, and victim-sensitive proceedings.

C. For Prosecutors

Prosecutors should focus not only on direct perpetrators but also on those most responsible, where evidence supports liability.

D. For the Military and Police

Security institutions must strengthen training, internal accountability, documentation, lawful rules of engagement, and mechanisms for refusing unlawful orders.

E. For the Commission on Human Rights

The Commission should continue documentation, victim assistance, public reporting, and institutional monitoring.

F. For Civil Society

Civil society organizations play a vital role in documentation, legal support, survivor assistance, public education, and historical memory.

G. For Law Schools

Law schools should treat international criminal law as part of Philippine constitutional and criminal law, not merely as a specialized international subject.

LI. Conclusion

Fundamentalist and utilitarian theories explain two different but complementary foundations of international criminal law.

The fundamentalist theory insists that some acts are evil in themselves. Genocide, crimes against humanity, war crimes, torture, enforced disappearance, and systematic attacks on civilians violate human dignity so profoundly that justice demands accountability.

The utilitarian theory insists that punishment must also serve human purposes. Accountability should deter future crimes, prevent impunity, strengthen institutions, protect victims, educate society, and promote durable peace.

In the Philippine context, neither theory is sufficient alone. The country’s constitutional order, history of human rights struggles, armed conflicts, statutory framework, and relationship with international justice all require a blended approach.

International criminal law in the Philippines should therefore be understood as a system of moral accountability, constitutional legality, institutional prevention, and democratic protection. Its purpose is not vengeance. Its purpose is justice disciplined by law, and law directed toward the protection of human dignity.