President Ferdinand Marcos the Younger has taken the position that the Philippines will no longer engage with the International Criminal Court (ICC) regarding the latter’s intent to continue its prosecution of former President Rodrigo Duterte. That is the right thing to do.
Two judges from the ICC itself pointed to that tribunal’s lack of jurisdiction. The Chamber in charge’s presiding judge Marc Perrin de Brichambaut, as well as Judge Gocha Lordkipanidze, essentially pointed out the simply commonsensical: the ICC cannot exercise jurisdiction over the Philippines considering the latter already withdrew from the Rome Statute before the Prosecutor requested authorization to commence his investigation.
Judges de Brichambaut and Lordkipanidze (by way of their Dissenting Opinion, July 18, 2023) went on to distinguish “between the existence of jurisdiction and the Court’s ability to exercise the jurisdiction, and that the preconditions to the exercise of the Court’s jurisdiction set out in article 12 of the Statute must exist at the time that the exercise of the jurisdiction is triggered pursuant to article 13 of the Statute.”
Thus, “the Pre-Trial Chamber erred in law in concluding that the Court had jurisdiction over the Philippines Situation despite the Philippines’ withdrawal from the Rome Statute. As a result, we would have granted the Philippines first ground of appeal and found that the Court cannot exercise jurisdiction in the Philippines Situation. Consequently, we would have found the remaining grounds of appeal moot. We would also have directed the Pre-Trial Chamber to withdraw its authorization for the Prosecutor’s investigation and discontinue all proceedings in the situation.”
Consequently, despite an international tribunal’s compétence de la compétence authority, the ICC’s principle of complementarity alongside that of Philippine sovereignty should still be paramount.
Another point for the Philippines that must be considered is the Rome Statute’s Article 17.1.a, which declares that the ICC “shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”
Regarding “unable,” international criminal law expert Mark Ellis (see “The International Criminal Court and its Implication for Domestic Law and National Capacity Building,” Florida Journal of International Law: Vol. 15: Iss. 2, Article 2.Available at: https://scholarship.law.ufl.edu/fjil/vol15/iss2/2) lays out four possible instances that genuinely show such: if the country is experiencing conflict, political or economic crisis, transition, or the absence of an independent and impartial judiciary. The Philippines is none of those things. Regarding specifically our judicial system, there is no “substantial collapse or unavailability of its national judicial system” (Article 17.3). On the contrary, the recent rulings on Senator Leila De Lima and Rappler’s Maria Ressa are illustrative of the opposite.
Also to be emphasized is that our courts are well authorized to investigate the crimes Duterte is alleged to have committed: RA 9851, enacted in 2009, which gives jurisdiction to our courts to look into crimes against international humanitarian law, genocide, and other crimes against humanity. This fact alone made Philippine membership in the ICC before a completely redundancy.
Furthermore, the tripartite form of government, with its checks and balances, that the Philippines has is clearly functioning. Its news media, as can be seen from its somewhat predictable coverage of the recent State of the Nation Address, is obviously still rambunctiously vigorous.
As regards “unwillingness,” Article 17.2 describes such as shielding a person from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5; unjustified delay in the proceedings; or the proceedings were not or are not being conducted independently or impartially. Again, none of such, due to the reasons brought up above, apply to the Philippines.
The Philippines is arguing, quite correctly, that the charge of “crimes against humanity” does not apply. Before continuing, three points: the Rome Statute, like any criminal statute, is read in favor of the accused. Secondly, ICC Elements of Crimes require Article 7 to “be strictly construed” as “among the most serious crimes of concern to the international community as a whole.” Finally, the nature of “crimes against humanity” must be properly determined.
And which leads us to something we pointed out as early as 2018: one academic paper submitted at UA&P Law (“Extrajudicial Killings Under the Duterte Administration: A Crime Against Humanity,” Joel Arzaga, 2018) precisely made that salient point: Duterte’s acts — as charged — do not constitute a crime against humanity, at least as currently understood under international law.
By comparing past ICC cases involving crimes against humanity (notably Mbarushimana, Ngudjolo Chui, Katanga, and Bemba Gombo), there is the absence of actual “state policy, express or implied, to commit murder, which has for its primary object any civilian population within the territorial jurisdiction of the Philippines” and that there is no “particular and identifiable civilian population that is the primary object of the attack.” Both are crucial elements for a conviction under crimes against humanity.
In fact, examining other countries’ “war on drugs,” from Colombia (allegedly 215,000 dead) to Mexico (allegedly 120,000 dead), show that — despite the appalling body counts — no indictment has been made by the ICC.
The point being made here is not that allegation of crimes should not be taken seriously. If a crime was committed, let justice be done. However, if Duterte’s critics are confident that the complaint filed in the ICC can withstand proper judicial scrutiny, then why not just file the case here? Based on the Constitution, the Revised Penal Code, and RA 9851. Since we’re all so zealous of our sovereignty, then why rely on foreigners to settle an issue between Filipinos?
And if indeed President Duterte violated the rule of law, his critics — and critics of Marcos the Younger — would be equally wrong to do the same by pressing for ICC interference in violation of Philippine sovereignty just to satisfy their irrational self-righteousness.
Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence
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