by Perry Diaz
On March 14, 2018, President Rodrigo Duterte declared the Philippines was withdrawing its membership in the ICC (International Criminal Court), thinking that he wouldn’t be prosecuted for allegations that he was responsible for the killing of thousands of Filipinos during his presidency.Prosecutor Fatou Bensoula of the ICC began the investigation early in February 2018 on the basis that murder, torture, and other crimes against humanity were present in the government’s anti-drug program during the first three years of the Duterte administration.
Last June 14, 2021, Bensouda announced that she had concluded her preliminary examination in the Philippines and is seeking authorization from the ICC’s judges for a full investigation into crimes against humanity committed in connection with the country’s “war on drugs” between November 1, 2011 March 16, 2019.
Supreme Court decision
In a unanimous decision on July 21, 2021, Philippine Supreme Court ruled that the government remains obliged “to cooperate in criminal proceedings of the ICC even if it has withdrawn from the Rome Statute,” the treaty that formed the ICC. Further, the ruling said that President Duterte could not arbitrarily terminate international agreements without the consent of the Senate.
In its ruling, the high court said that as a state party, the Philippines was bound to recognize the jurisdiction of the ICC and cooperate with its processes even after its withdrawal from the Rome Statute.
“Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member,” the high court said in a decision authored by Associate Justice Marvic Leonen.The high court pointed out that the country’s withdrawal became effective on March 17, 2019, which means that all acts committed by Duterte and other public officials up to that date were still within the scope of the ICC’s jurisdiction. Duterte presumed that by withdrawing from the Rome Statute, he’d be able to avoid prosecution by the ICC. Wrong. Article 127(2) of the Rome Statute said, “Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the [ICC] obliges the state party to cooperate.” As former ICC Judge Raul Pangalangan, the first Filipino to serve on the international tribunal said, “The withdrawal was not an excuse for Duterte to disregard the ICC’s authority.”In support of the Supreme Court ruling, Amnesty International’s (AI) Philippines Researcher, Rachel Chhoa-Howard said, “Despite President Duterte’s stubborn refusal, Amnesty International welcomes the Supreme Court’s ruling that the Philippines remains obliged to cooperate with the ICC during formal probes into the deadly “war on drugs” – even if the state has withdrawn from the Rome Statute.”
“Try as they might, Duterte’s administration cannot stop the wheels of justice. Whether they like it or not, international justice will eventually catch up with those who have committed crimes under international law in the Philippines,” Chhoa-Howard said.
But in an act of defiance, Duterte said he’d not allow the government to cooperate with the ICC, even after the Supreme Court’s affirmation of the Philippines’ obligation to do so.
Not giving up on the issue, Duterte said he might run for vice president in 2022 in order to be immune from lawsuits. But retired associate justice and former ombudsman Conchita Carpio-Morales debunked Duterte’s assumption that he’ll be spared from criminal liability if he wins the vice presidency in 2022. She said that – citing American jurisprudence – the vice president is “not immune” from lawsuits, civil or criminal just like what happened to the former vice president of the U.S. Spiro Agnew who was investigated in1973 for criminal conspiracy, bribery, extortion and tax fraud. After maintaining his innocence, Agnew pleaded no contest to a single felony charge of tax evasion and resigned from office.
During Duterte’s recent Sixth State of the Nation Address (SONA), he became combative when he said, “the battle against narcotics is far from over, more than five years after he began a brutal war on drugs.” He defended the campaign, saying it brought down crime and improved peace and order.
“We still have a long way to go in our fight against the proliferation of drugs,” Duterte said in his nearly three-hour address. Duterte, who has dared the ICC to put him on trial, taunted the court again, saying he has never denied that he will kill people out to destroy the country.
“I have never denied, and the ICC can record it: those who destroy my country, I will kill you. And those who destroy the young people of our country, I will kill you. I will really finish you, because I love my country.” With those words, he challenged the ICC to prosecute him.
Refusal to cooperate
However, Duterte refused to cooperate with any ICC probe since the Hague-based tribunal supposedly has no jurisdiction over him since its founding treaty, the Rome Statute, supposedly never became a law in the country. Wrong. The Philippines signed the Rome Statute on December 28, 2000 and ratified it on August 30, 2011; thus, making it an extension of Philippine law.
But 10 years later, on July 29, 2021, Duterte claimed that the signing of the Rome Statute was never been published in the Official Gazette and was, therefore, never binding in the first place. “The executive department has no copy,” he said. “That’s because what happened was from Congress — Congress ratified it — instead of returning the treaty as ratified by Congress to the executive department, they short-circuited it. They went straight to Rome and appended the Philippine participation.” He asserted, “When there’s no publication, there’s no jurisdiction. There’s no recorded publication. According to the Supreme Court, the absence of a publication in the Official Gazette is always fatal.” But Mr. President, it’s the duty of the Philippine Senate to ratify all international agreements, which in effect obligates the executive department to implement it.
It’s interesting to note that the day before, Duterte addressed the nation, saying that he would rather stand on trial at home rather than face the foreign tribunal over alleged rights abuses linked to his war on drugs. Well, perhaps he should submit himself to Philippine courts for prosecution of the murders committed during his presidency. But since he is still sitting as president until June 30, 2022, he may have to wait until then. And if the Philippine courts fail to prosecute him at that time, the ICC could then take over the prosecution of Duterte for crimes against humanity as mandated in the Rome Statute. Fair enough?
Now, we can see why Duterte wants to run for vice president. Meanwhile, a sword of Damocles remains dangling above his head, ready to strike him when he steps down from the presidency.
PERRY DIAZ is a writer, columnist and journalist who has been published in more than a dozen Filipino newspapers in five countries.
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