In November 2022, in what a perennial detractor news outlet described as a “clever move” but which this writer considers a mistake, the Philippine Embassy in the Netherlands asked for a suspension of the International Criminal Court’s investigation on the alleged extrajudicial killings in connection with the war on drugs declared and relentlessly pursued by former President Rodrigo Roa Duterte.
The suspension move was a mistake because it went against the official position of the government that the ICC has never acquired jurisdiction over the Philippines. Instead of a deferral request, it should have been a demand for the ICC to outrightly halt its unwanted and repulsive probe for being violative of our sovereignty.
During that suspension period, the Philippine government was given the opportunity to submit evidence that it was willing and able to investigate the killings on its own. Why should we proffer evidence — that our government is willing and able to investigate — to an international body that has no jurisdiction over us? The presumption of regularity in the prosecution of crimes by the government should be accorded it. ‘
Likewise, the complainants should be the ones submitting evidence to support their allegations that extrajudicial killings happened, and that our law enforcement agencies were remiss in their duties to go after the culprits, and that our judicial system is impotent to perform its assigned task of handing punishment to the offenders.
Moreover, the International Criminal Court should take judicial notice that we have a robust and operating judiciary that has placed behind bars two Presidents charged with high crimes, not to mention the fact that the overwhelming majority of our people have supported FPRRD’s vigorous campaign against illegal drugs as shown by his astronomical trust and approval survey rating, at the commencement, during and even after his six-year term has ended.
After a year of deferment of the investigation, and following the government’s submission of proof that it was judiciously going after those violating drug-related killings, the ICC came out with a report that it is not satisfied that the Philippines is undertaking the required investigations to merit a continued deferral of the investigations, to wit:
“Following a careful analysis of the materials provided by the Philippines, the Chamber is not satisfied that the Philippines is undertaking relevant investigations that would warrant a deferral of the Court’s investigations on the basis of the complementarity principle.”
The ICC report was signed by Judges Peter Kovaca, Reine Adelaide, Sophie Alapini-Ganaou and Maria del Socorro Flores Liera. The intransigence of the International Criminal Court in pushing for a probe that not only recklessly transgresses our territorial integrity and sovereignty but violates the Rome Statue, the law that created it as well, as it completely ignores the basic principle of complementarity.
We have repeatedly said that the ICC never acquired jurisdiction over our country because the constitutional requirement for making it effective is wanting, and even assuming it initially acquired jurisdiction, it lost it when the country formally withdrew its membership.
The case against former President Rodrigo Roa Duterte has been politicized from its very inception and is evidently intended to demonize him internationally and taint the success of the war against illegal drugs that placed in peril a generation of Filipinos and created dysfunctional families.
The former President reiterated his irreversible and principled position that the ICC has no jurisdiction over his person nor over this country, and it (ICC) can do its worse but he will be unmoved by it.
Elaborating on his principled stand, FPRRD told this columnist in Davao:
“If I am guilty of any crime against humanity, then it should be a Filipino prosecutor who should prosecute me and a Filipino judge should preside over my trial. If I’m convicted, I will serve my sentence in a Philippine prison.
When asked about his reaction should the government cooperate with the ICC, he unequivocally responded: “I do not rely on the government, and whatever action it takes won’t affect me.”
As expected, there was a hasty rush and an avalanche of celebratory narratives from the human rights groups, opposition, critics, and detractors of the President. This lawyer has repeatedly articulated in various fora and on several occasions that the ICC, does not have jurisdiction over the Philippines. Neither has it acquired jurisdiction over any of its state officials, particularly, former President Rodrigo Roa Duterte.
The Rome Statute that created the International Criminal Court, a penal statute, failed to comply with the publication requirement, demanded by the fundamental principle of due process under our Constitution, especially because the Rome Statute is penal in nature, hence before any person can be subjected to its jurisdiction, its existence and enforceability must be known to him. Even assuming that the Rome Statute became enforceable in the Philippines (which it never did), the ICC can not exercise its powers on our local matters since our formal withdrawal removed our country from its jurisdiction.
Article 127 of the Rome Statute provides that it is only when a criminal investigation or proceeding has commenced before the effective date of the withdrawal that the ICC can continue with the case initiated. The ICC’s Office of the Prosecutor is still conducting a preliminary examination with no criminal investigation or proceeding even being commenced, nor any matter being considered by the ICC Court Proper, at present, hence on all fours, the ICC has no jurisdiction.
The government should stand steadfast on its official position that the ICC has no jurisdiction and assert our sovereignty and territorial integrity.