Be firm

“It was only two years later, on 24 May 2021, that the ICC sought authorization to open an investigation.

The clear position of the Philippines not to cooperate with the International Criminal Court after it withdrew from the Rome Statute that created the international tribunal should stay.

The country has taken a stand to protect the integrity of its judicial process by refusing to have a foreign court interfere in a legal question that is best left to the jurisdiction of local courts.

An argument goes that since President Rodrigo Duterte, one of those accused in the crimes against humanity suit in the ICC, has stepped down, the administration of his successor has no reason not to allow the foreign tribunal to begin its probe into the war on drugs.

The Duterte administration — steeped in legal talent, aside from Duterte, who is a former prosecutor, executive secretary Salvador Medialdea, presidential counsel Sal Panelo, spokesperson Harry Roque, deputy presidential counsel Jesus Melchor Quitain, and justice secretary Menardo Guevarra who is now Solicitor General under President Ferdinand Marcos Jr. — had considered the ICC probe an intrusion into a functioning judicial system.

Duterte came into power promising Filipinos a law and order in his administration anchored on ending the drug crisis.

The relentless campaign resulted in blood and gore as the well-entrenched syndicates fought back, while a war of attrition started among rival drug lords amid the shrinking but lucrative evil trade.

The administration raised with the ICC the issue of complementarity, which entails the need for the international tribunal to intervene only if the legal system of a targeted country is not functioning.

Raising the issue of complementarity and the country’s withdrawal from the Rome Statute that took effect on 17 March 2019, Duterte’s Department of Justice argued that the ICC had no jurisdiction over the country.

The issue proved to be far from settled, as reflected in the close 3-2 ICC decision to proceed with the investigation of the drug war.

The judgment on 18 July 2023 by the ICC Appeals Chamber dismissed the Philippine challenge but with the two dissenting judges jointly filing a contrary opinion.

The split decision thus highlighted that the question of temporal jurisdiction was far from settled and could be raised if the ICC insisted on staging a probe in the country.

Through the loud clamor of anti-Duterte political forces, including failed putschist Antonio Trillanes IV, who masterminded the filing of the ICC case, ICC Prosecutor Fatou Bensouda, who has since retired, indicated on 13 October 2016, the possibility of a preliminary examination into the war on drugs.

The preliminary examination was launched on 8 February 2018, to which Duterte responded by ordering the Philippines’ withdrawal from the Rome Statute under Article 127.

The withdrawal came into effect on 17 March 2019. It was only two years later, on 24 May 2021, that the ICC sought authorization to open an investigation.

On 24 June 2022, the prosecutor filed a request with the ICC pre-trial chamber for the authority to resume its investigation amid the staunch objection of the Philippine government.

The Duterte administration pointed out that it was “able and willing to genuinely investigate” the crimes, but the pre-trial chamber authorized the resumption of the investigation on 26 January 2023.

On 3 February 2023, the Philippine government filed a Notice of Appeal against the resumption decision. The government echoed its complementarity argument but invoked a new ground: temporal jurisdiction.

While the majority (Judges Piotr Hofman’ski, Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa) washed their hands of the withdrawal issue, the dissenting opinion of Judges Marc Perdin de Brichambaut and Gocha Lordkipanidze squarely addressed it in the ICC ruling.

They wrote: “We consider that the pre-trial court erred in law in concluding that the (ICC) had jurisdiction despite the Philippines’ withdrawal. The Court cannot exercise jurisdiction in the Philippines situation.”

How can the members of Congress now say that submitting to the ICC is imperative when even its judges are divided over the issue of jurisdiction?

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Credit belongs to: tribune.net.ph