I met with former president Rodrigo Duterte last night to discuss his position on the recent developments in the International Criminal Court’s (ICC) preliminary investigation on the drug war. While the former president was consistent in his position that he will only face trial before a Philippine court and will allow himself to be jailed in a Philippines jail, he reiterated that under no circumstance will he allow any foreigner to sit in judgment over anything he did as mayor or president of the country.
This is consistent with the principle that sovereign states exercise exclusive territorial jurisdiction to prosecute all crimes committed in their territory, especially when committed by a Filipino national.
And while we indeed became a member of the ICC by becoming a party to the Rome Statute, we did so on the basis that it will only have complimentary jurisdiction to domestic institutions.
This principle is now enshrined in the principle of complementarity, which provides that the ICC will only exercise its jurisdiction when domestic legal institutions are unwilling or unable to do so. There is unwillingness when there is a statute vesting an individual with absolute immunity from suits.
This is not the case with the Philippines since our presidents are only immune from suits while in office. Recent history has witnessed two former presidents jailed immediately after their terms of office.
On the other hand, there is inability where there are no domestic institutions existing at all to accord justice to the victims of the most serious offenses committed against the international community. Case in point is Sudan whose nationals are currently facing the most numbers of prosecutions before the ICC.
Simply put, the ICC was meant by countries that established it to be the court of last resort and was never intended to be a substitute for domestic jurisdictions.
But what surprised me was a query that the former president asked: In the remote possibility that the ICC will persist in its investigation and decides to request the Philippines National Police to enforce a warrant of arrest against him, can he go to the Supreme Court for an injunction? My answer was a resounding: Yes!
Why? Because of all institutions, the Supreme Court would be the last to admit that we have a non-functioning judicial system. What would be the basis for the restraining order? That would be because the right of PRRD as a Filipino and the public good would be violated if the Philippine Supreme Court were to allow the service of processes by a foreign court. This is because this would be a brazen violation of our sovereignty and jurisdiction which inherently, and because it is exercised exclusively in a defined territory, is jealous.
People have criticized me for allegedly yet another flip-flopping on the ICC. Yes, I was at the forefront of the campaign for the Philippines to be a member of the ICC. This was because it was Philippine jurisprudence in Yamashita and in Kuroda that first gave rise to the principle of international criminal responsibility, and without which a court like the ICC could not have been established. This is the principle that a person who commits a violation of international law may be held criminally responsible even without a domestic statute. The same case of Yamashita gave us the principle of command responsibility, which provides that a superior or a military commander incurs responsibility when he knew or should have known that his troops were committing crimes and he did nothing to investigate, prosecute and punish them for their acts.
This is the most common basis for criminal culpability under the ICC. But I advocated membership in the ICC on the basis that the said court will be the court of last resort and not the court of first instance.
To those who feel they were victims of Duterte’s war on drugs, please sue him, but sue him here in the Philippines because our legal system is able and willing to prosecute him now that he no longer has immunity. My convictions in the Maguindanao massacre case, in the Pemberton murder case and in the ongoing Evangelista torture case are proof that our domestic legal system is working. Hence, the ICC should keep out.