Salgado, Frances Ricci J.

Integrated Bar of the Philippines

Guerrero, George Mitchell S. Petitioner
Tolentino, Ma. Kristine G.

I. The Supreme Court has jurisdiction over the case per

constitutional1, statutory2, reglementary 3, and jurisprudential
requirements.4

II. Generally accepted principles of international law form part of the

law of the land.5
A. The application and interpretation of Rep. Act No. 9851 by
Philippine courts shall be guided by the—
1. 1948 Genocide Convention,
2. Rules and principles of customary international law,
3. Judicial decisions of international courts and tribunals, and
4. Other relevant international treaties ratified by the Philippines,
and teachings of the most highly qualified publicists.6
B. The sources of international law are—
1. International conventions,
2. International custom,
3. General principles of law recognized by civilized nations, and
4. Subsidiarily, judicial decisions and teachings of the most highly
qualified publicists.7

III. The Philippines must order the prosecution and arrest of the
Westphalian Soldiers.
A. Genocide
1
CONST. art. VIII, § 5(2). Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
****
(e) all cases in which only an error or question of law is involved.
2
Rep. Act No. 9851, § 18. The Regional Trial Courts of the Philippines shall have original and exclusive
jurisdiction over crimes punishable under Rep. Act No. 9851. Their judgments may be appealed or elevated to
the Court of Appeals and to the Supreme Court, as provided by law.
3
RULES OF COURT, Rule 45(1). Filing of petition with Supreme Court.— A party desiring to appeal by certiorari
from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review
on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional
remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the
same provisional remedies by verified motion filed in the same action or proceeding at any time during its
pendency.
4
Nocum v. Tan, G.R. No. 145022, September 23, 2005. It is settled that jurisdiction is conferred by law based
on the facts alleged in the complaint since the latter comprises a concise statement of the ultimate facts constituting
the plaintiff's causes of action.
5
CONST. art. II, § 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
6
Rep. Act No. 9851, § 15.
7
Statute of the International Court of Justice, art. 38(1).

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 Salgado, Frances Ricci J. Integrated Bar of the Philippines
Guerrero, George Mitchell S. Petitioner
Tolentino, Ma. Kristine G.

1. Genocide is a special penal offense under Philippine Law.8

a. “The killing, causing bodily or mental harm to bring about
physical destruction of a national, ethnic, racial, religious,
social, or any other similar group, with the intent to destroy
such group, are ways of committing genocide.”9
b. Persons found guilty will be subject to heavy civil and criminal
sanctions.
B. International law recognizes genocide as a crime of the highest
order.
1. The U.N. Convention on the Prevention and Punishment of the
Crime of Genocide proscribes it.
a. Parties should undertake to enact effective penalties for
persons guilty of genocide.
b. Persons charged with genocide should be tried by a competent
tribunal of the state in the territory of which the act was
committed, or by such international penal tribunal that may
have jurisdiction over the case.
2. Genocide is a violation of jus cogens—"compelling law” which
holds the highest hierarchical position among all other norms.10
a. The prohibition against genocide is a jus cogens norm that
cannot be reserved or derogated.11
b. Genocide is considered part of jus cogens on the basis of
opinio juris, language in preambles of treaties, large number
of states which ratified treaties related to it, and ad hoc
international investigations and prosecutions of perpetrators
of genocide.12
3. Vindication of genocide is an obligatio erga omnes.
a. All States have a legal interest in its vindication and such
obligation is towards the international community as a whole.
b. Erga omnes is a consequence of a given international crime
having risen to the level of jus cogens.13

8
Rep. Act No. 9851, § 5.
9
Rep. Act No. 9851, § 5.
10
M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 L. & CONTEMP.
PROBS. 63-74 (Fall 1996).
11
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, 1951 I.C.J. Rep. 15 (May 28).
12
M. Cherif Bassiouni, supra.
13
South West Africa Case (Eth. v. S. Afr.; Liberia v. S. Afr.), Judgment, 1962 I.C.J. Rep. 319 (December 21);
Barcelona Traction Case (Belg. v. Spain), Judgment, 1964 I.C.J. Rep. 6 (July 24).

2
 Salgado, Frances Ricci J. Integrated Bar of the Philippines
Guerrero, George Mitchell S. Petitioner
Tolentino, Ma. Kristine G.

c. The most serious crimes of concern to the international

community as a whole must not go unpunished and their
effective prosecution must be ensured…14
C. To adhere to the principle of pacta sunt servanda, the Philippines
should opt to arrest and prosecute them domestically instead of
surrendering them to the International Criminal Court (ICC).
1. The VIFEDCA provides the following—
a. Philippine authorities shall have jurisdiction over
Westphalian personnel with respect to offenses committed
within the Philippines and punishable under its laws.
b. The custody of Westphalian personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside
with Westphalian military authorities, if they so request.
2. Westphalia requested that they be given custody while judicial
proceedings are on-going.
3. The ICC Pre-Trial Chamber has already initiated its
investigation proceedings and issued a warrant of arrest.
4. The Philippines has the duty to cooperate fully with the ICC in
its investigation and prosecution of crimes within the jurisdiction
of the Court.15
a. It must immediately take steps to arrest the person/s in
question in accordance with its laws.16
5. Philippine authorities may dispense with the investigation or
prosecution of a crime if another court or international tribunal
is already conducting the investigation and may surrender or
extradite suspected persons to the appropriate international
court.17
a. “May” is permissive.
b. Option to prosecute domestically or to surrender jurisdiction
is potestative to the Philippines.
c. To elect neither is not an option.
6. The principle of complementarity allows the Philippines not to
surrender the Soldiers to the ICC if their case is already being
tried in its courts.

14
Rep. Act No. 9851, § 2(e).
15
Rome Statute of the International Criminal Court, art. 86. Hereinafter, Rome Statute.
16
Rome Statute, art. 59.
17
Rep. Act No. 9851, § 17, ¶ 2.

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 Salgado, Frances Ricci J. Integrated Bar of the Philippines
Guerrero, George Mitchell S. Petitioner
Tolentino, Ma. Kristine G.

IV. The Philippines must order the Eastphalian Diplomat’s arrest and
his surrender to the ICC.
A. Petitioner admits the inviolability of the chancery and the immunity
of the Diplomat under customary law and the Vienna Convention
on Diplomatic Relations.18
1. Petitioner acknowledges that diplomatic immunity from
domestic criminal jurisdiction extends even “where they are
suspected of having committed war crimes or crimes against
humanity.”19
2. However, immunities of diplomats “do not represent a bar to
criminal prosecution in certain circumstances”—e.g., “criminal
proceedings before certain international criminal courts, where
they have jurisdiction.”20
i. “Immunities or special procedural rules which may attach
to the official capacity of a person, whether under
national or international law, shall not bar the Court
from exercising its jurisdiction over such a person.”21
B. Petitioner submits that the Court’s role is limited to declaring the
existence of the duty to arrest and surrender and to order compliance
with the duty.
1. Judicial inquiry ends with the declaratory and mandatory
function.
2. The question of feasibility and the details of implementation is
solely addressed to the Executive.
C. The Philippines must comply with the ICC request for arrest and
surrender.
1. State Parties have a general obligation to cooperate with the ICC,
particularly with “prosecution of crimes within the jurisdiction of
the Court.”22
2. States Parties shall, in accordance with the provisions [Part IX]
and the procedure under their national law, comply with requests
for arrest and surrender.23

18
Vienna Convention on Diplomatic Relations, pmbl., art. 22(1), art. 29.
19
Arrest Warrants Case (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. Rep. 3 (April 11).
20
id., applied mutatis mutandis.
21
Rome Statute, art. 27(2).
22
Rome Statute, art. 86.
23
Rome Statute, art. 89(1).

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 Salgado, Frances Ricci J. Integrated Bar of the Philippines
Guerrero, George Mitchell S. Petitioner
Tolentino, Ma. Kristine G.

3. Philippine law expressly allows dispensation with investigation

and prosecution when an international tribunal is conducting the
same.24
a. Authorities may surrender the accused to the appropriate
international court “pursuant to the applicable extradition
laws and treaties.”—i.e., Pres. Decree No. 1069.25
4. With the issuance of the arrest warrant by the ICC and request
for arrest, compliance follows as a matter of course.
a. “The competent authorities of the custodial State are
expressly forbidden by the Statute from questioning whether
the warrant has been properly issued by the Pre-Trial
Chamber.”26
b. Failure to comply is cause for the ICC to refer the non-
compliant state to the Assembly of State Parties or the U.N.
Security Council.27

V. The Construction Contract is Null and Void.

A. The WEXIMBANK–Department of Finance (DOF) Loan Agreement
is not a treaty or executive agreement under the Vienna Convention
on the Laws of Treaties28, Exec Order No. 45929, and case law.
1. The requisites of an executive agreement are as follows—
a. the agreement must be between states;
b. it must be written; and
c. it must be governed by international law.30
B. WEXIMBANK is a government-owned and controlled corporation
(GOCC) acting in the proprietary, not sovereign capacity of
Westphalia.
1. Processual presumption applies due to lack of proof of
Westphalian Law.
a. WEXIMBANK is akin to the a GOCC.31
24
Rep. Act No. 9851, § 17, ¶ 2.
25
Rep. Act No. 9851, § 17, ¶ 2.
26
WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 278 (4th ed. 2011).
27
Rome Statue, art. 87(7).
28
Vienna Convention on the Law Treaties, § 2(1). “An international agreement concluded between States in
written form and governed by international law, whatever its particular designation”
29
Exec. Order No. 459, § 2(a). International Agreement shall refer to a contract or understanding, regardless of
nomenclature, entered into between the Philippines and another government in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments.
30
China Nat’l Mach. & Equip. Corp. (Grp.) v. Sta. Maria, G.R. No. 185572, February 7, 2012.
31
REV. ADM. CODE, § 2(13). Government-owned or controlled corporation refers to any agency organized as a
stock or non-stock corporation, vested with functions relating to public needs whether governmental or

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 Salgado, Frances Ricci J. Integrated Bar of the Philippines
Guerrero, George Mitchell S. Petitioner
Tolentino, Ma. Kristine G.

2. DOF is a department32 not clothed with full powers33 to

negotiate international agreements.34
3. Westphalian Law is stipulated as the governing law.
4. No fact indicates the loan was guaranteed by Philippines.
5. Hence, the First and Third Requisites are not met.
C. The Section 4 exception in the Government Procurement Reform
Act (GPRA) is inapplicable.
1. Procurement by “all branches and instrumentalities of
government” is subject to the GPRA and its rules.35
a. GPRA applies to the DOF and the Department of National
Defense (DND) with respect to contractor selection.

proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or,
where applicable as in the case of stock corporations, to the extent of at least fifty-one 51%: Provided, That
government-owned or controlled corporations may be further categorized by the Department of the Budget, the
Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their
respective powers, functions and responsibilities with respect to such corporations.
32
REV. ADM. CODE, § 2(7). Department refers to an executive department created by law. For purposes of Book
IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a department,
regardless of its name or designation.
33
Exec. Order No. 459, § 4. Full Powers. -The issuance of Full Powers shall be made by the President of the
Philippines who may delegate this function to the Secretary of Foreign Affairs.
The following persons, however, shall not require Full Powers prior to negotiating or signing a treaty or an
executive agreement, or any amendment thereto, by virtue of the nature of their functions:
a. Secretary of Foreign Affairs;
b. Heads of Philippine diplomatic missions, for the purpose of adopting the text of a treaty or an agreement
between the Philippines and the State to which they are accredited;
c. Representatives accredited by the Philippines to an international conference or to an international
organization or one of its organs, for the purpose of adopting the text of a treaty in that conference,
organization or organ.
34
Exec. Order No. 459, § 3. Authority to Negotiate. Prior to any international meeting or negotiation of a treaty
or executive agreement, authorization must be secured by the lead agency from the President through the Secretary
of Foreign Affairs. The request for authorization shall be in writing, proposing the composition of the Philippine
delegation and recommending the range of positions to be taken by that delegation. In case of negotiations of
agreements, changes of national policy or those involving international arrangements of a permanent character
entered into in the name of the Government of the Republic of the Philippines, the authorization shall be in the
form of Full Powers and formal
instructions. In cases of other agreements, a written authorization from the President shall be sufficient.
35
Government Procurement Reform Act, Rep. Act No. 9184, § 4. Scope and Application. – This Act shall apply
to the Procurement of Infrastructure Projects, Goods, and Consulting Services, regardless of source of funds,
whether local or foreign, by all branches and instrumentalities of government, its departments, offices and
agencies, including government-owned and/or -controlled corporations and local government units, subject to the
provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement affecting the
subject matter of this Act to which the Philippine government is a signatory shall be observed. GPRA Rules &
Reg., § 4.1. This IRR shall apply to all procurement of any branch, agency, department, bureau, office, or
instrumentality of the GoP, including government-owned and/or -controlled corporations (GOCCs),
government financial institutions (GFIs), state universities and colleges (SUCs), and local government units
(LGUs).

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 Salgado, Frances Ricci J. Integrated Bar of the Philippines
Guerrero, George Mitchell S. Petitioner
Tolentino, Ma. Kristine G.

2. As a rule, competitive bidding is the procurement method.36

3. The exception avails when there is a treaty or executive
agreement which shall be observed.37
4. VIFEDCA merely states a non-executory standard but not a mode
of procurement.38
5. The Loan Agreement is not an executive agreement.
6. The general rule of the GPRA applies.
D. Construction Contract between DND and ZTZ must be declared
void ab initio.
1. The Construction Contract is pursuant to the Loan Agreement,
an ordinary civil contract.
2. Mandatory requirements of law—such as competitive bidding—
may not be waived by mere agreement.39
3. The selection of ZTZ through direct contracting is contrary to
the GPRA.
4. The DND cannot validly enter into a construction contract with
ZTZ.
5. The contract is void ab initio.

36
Government Procurement Reform Act, Rep. Act No. 9184, § 10. Competitive Bidding. – All Procurement
shall be done through Competitive Bidding, except as provided for in Article XVI of this Act.
37
Government Procurement Reform Act, Rep. Act No. 9184, § 4, final cl. […] Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory
shall be observed.
38
VIFEDCA, art. VIII-A. […] The two governments agree to use the most efficient procurement methods for the
construction of such bases.
39
CIVIL CODE, art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.