Despite having left ICC, Phl cannot evade probe

“Withdrawal from the Rome Statute does not discharge a state party from the obligations it has incurred as a member. Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs [during the Duterte administration] is not nullified or negated.”

Thus declared the Supreme Court, in a 101-page unanimous decision issued on March 16, 2021, penned by now Senior Associate Justice Marvic Leonen.

The Rome Statute is the treaty creating the International Criminal Court, to which the Philippines acceded in 2011. In March 2019, President Duterte withdrew Philippine ratification after the ICC Prosecutor Fatou Bensouda began investigating killings by state security forces during his high-profile war on drugs.

The high court cited Article 127(2) of the Rome Statute, which states:

“Even if it has deposited the instrument of withdrawal, [the state party] is still not discharged from any criminal proceedings. Whatever process was already initiated before [the ICC] obliges the state party to cooperate.”

The new administration’s legal team has begun tackling the thorny issue. After a meeting with President Marcos Jr. on what to do with the Duterte-ICC problem, Solicitor General Menardo Guevarra said they had arrived at a “general consensus” on what to do. He did not say if they agreed that the high court was correct in the above-cited ruling that the Philippine government has the duty to cooperate with the ICC despite its withdrawal from the treaty. But then Marcos Jr. announced that the country “will not rejoin the ICC.”

In dealing with the ICC’s request for the government to submit its comments to the new prosecutor Karim Khan’s proposal to reopen the investigation on the drug-war killings, Justice Secretary Jesus Crispin Remulla rejected the use of the word “compliance” (having to do with fulfilling an obligation), preferring to use the word “comity” (being voluntarily courteous).

“Compliance is not the term. We will furnish them the available information [on the government’s proceedings on drug-war killings and other atrocities] as a matter of comity,” he told reporters. He claimed that the country has a “functioning judicial system” and questioned why the ICC is persistent in conducting its investigation, even insinuating that there may be a “political agenda by people other than us.”

In November 2021, ICC prosecutor Karim Khan suspended the probe earlier authorized by the ICC’s Pre-Trial Chamber, responding to the Duterte government’s request for more time to look into the killings. Last month he proposed, and the ICC approved, a resumption of the investigation.

Khan observed that the proceedings undertaken by government agencies “fail to sufficiently mirror the authorized ICC investigation,” as required by Article 17 and 18 of the Rome Statute.” The Philippines had also failed, he said, to show it was investigating “any conduct occurring in Davao from 2011 to 2016, any crimes other than murder, any killings outside official police operations, any responsibility of mid- or high-level perpetrators, or any systematic conduct of State policy.”

Last July 14, (with Duterte no longer president) the ICC asked the Philippine government – and the drug-war victims and their families – to submit its observations by Sept. 8 on Khan’s proposal to resume the investigation. It also directed Prosecutor Kahn to submit his response to the observations submitted by Sept. 22.

Given the clear provision of the Rome Statute and the Supreme Court ruling quoted above, the Marcos Jr. administration has no option but to comply with the ICC request/order. Its announcement will be awaited.

Meantime, Marcos Jr.’s decision to stay out of the ICC has elicited varied reactions.

Senate Majority Leader Joel Villanueva said he and other senators may personally ask Marcos Jr. to reconsider.

“We may not agree with [the decision], but we respect the position of the President. It is his prerogative,” Villanueva said in a press conference. “I hope we get the chance to talk about it [for him] to listen to our position,” he added.

Sen. Risa Hontiveros found the decision “regrettable because the Rome Statute is the collective commitment of the community of nations against state-sponsored impunity.”

It was in 2011 that the Senate voted to concur with then President Benigno S. Aquino III signing of the Rome Statute. Of the 17 senators who concurred, seven now sit in the chamber: Loren Legarda, Francis Escudero, Lito Lapid, Ramon Revilla Jr., Jinggoy Estrada, Pia Cayetano and Alan Peter Cayetano.

Marcos Jr. was then a senator who also concurred with the ratification. His taking the stand to stay out of the ICC now has prompted this comment from Ruben Carranza, a former member of the Presidential Commission on Good Government:

“The same one who won’t rejoin the ICC voted to join the ICC in 2011 because (its) ratification signifies Philippine commitment to human rights and is our contribution to an effective international criminal justice system.”

“Unfortunate when viewed from the human rights perspective,” Commission on Human Rights Executive Director Jacqueline de Guia said of Marcos Jr.’s decision. “Being part of the ICC would have also been a strong mark of the government’s commitment in ensuring that there will always be a remedy for human rights violations and protection of present and future generations of Filipinos.”

“A terrible mistake,” cried out Kristina Conti of the Public Interest Law Center, one of the lawyers for the survivors of the drug war.

Expressing extreme disappointment “but not surprised” by Marcos Jr’s turnabout on the ICC, the International Coalition for Human Rights in the Philippines (ICHRP) stated:

“It is an ominous sign for human rights, as the only rationale for not being under ICC jurisdiction is to shelter perpetrators from prosecution and the intention to continue committing such crimes.”

Still, the ICHRP pointed out, there remain grounds for the continued investigation of the Duterte presidency’s alleged crimes against humanity. The group urged the ICC to pursue the investigation so that, “finally, justice may be secured and impunity ended.”

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Published in Philippine Star
August 6, 2022

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