So what?

Former president Rodrigo Roa Duterte would rather die than surrender to any foreign tribunal. He would never subject himself to the overreach of the International Criminal Court (ICC), whose jurisdictional competency to investigate the country’s war on drugs campaign between 2011 to 2019 violates the principle of complementarity. The well-functioning domestic judicial system of sovereign nation-states like the Philippines must take precedence over the intervention of The Hague Court.

Mayor Digong, as millions of political supporters fondly call him, is also willing and able to answer all legal complaints related to his anti-narcotics campaign as erstwhile mayor of Davao City and president of our Republic. He is no longer protected by presidential immunity. Therefore, the alleged victims of his drug war are free to file charges against him. He is not even afraid to face detention should a local court initiate criminal proceedings against him. But he will only face his accusers before Filipino court judges. The ICC is definitely out of the question.

When I phoned FPRRD, who was in China to meet President Xi Jinping, he was unbothered by the split decision of the Appellate Chamber dismissing the Philippine appeal filed by Solicitor General Menardo Guevarra. It paves the way for ICC Prosecutor Karim Khan to continue investigating the alleged human rights abuses related to the drug war. In January, a separate ICC Chamber expressed dissatisfaction over the Department of Justice panel review of 302 cases, which failed to meet the admissibility requirements of the Rome Statute.

Since our country withdrew from the ICC in 2018 – which took effect a year later – our legal team argued that the Court cannot exercise its jurisdiction over the Philippine situation. The presiding judge and another dissented, with the majority ruling saying the Pre-Trial Chamber erred in law when the latter asserted its jurisdiction. The ICC Prosecutor failed to trigger the Court’s jurisdiction before the Philippine withdrawal became effective, which allowed the country to reassert its primary jurisdiction over the case, the judges emphasized. Thus, they also found the remaining grounds moot.

Pessimistic

I have been the legal counsel for Mayor Digong. However, I had nothing to do with the appeal filed by the SolGen. Had I been consulted, I would have advised the government against wasting time and resources on an appeal that was bound to be quashed. Prior to the Chamber’s decision, SolGen Guevarra was quoted as saying he was not optimistic about our ICC appeal.

The government even hired a British barrister to assist in this case. I understand that there was no line-item budget for the hiring of a foreign counsel. So, Guevarra requested a special budget for the lawyer’s compensation. So, why file an appeal that was likely to fail at the expense of public funds? And exactly how much did we pay for the lawyer’s services?

I also ask why the SolGen was the one who filed the appeal when all official communication of the ICC was addressed to our Philippine ambassador to the Netherlands. Guevarra is the government’s legal representative in international cases such as our South China Sea Arbitration with China. But is the Philippine Republic the respondent in this ICC case? For now, the Court is resuming the investigation on crimes against humanity of murder related to the drug war. It has not filed a case against any agency or official of the Philippines. It has yet to identify other personalities as respondents to any criminal charge.

Uncooperative

President Marcos and Justice Secretary Boying Remulla have said the country will not cooperate with the Court’s investigation because it has serious implications for our sovereign nation. Without the support and cooperation of Filipino law enforcers and prosecutors, the ICC investigation will be an exercise in futility.

Several questions also come to mind. How can the Prosecutor possibly gather proof beyond reasonable doubt? How can he verify if the witnesses are telling the truth? Will he reference news articles that cannot be used as evidence for complex crimes? Will he accept hearsay evidence from left-leaning organizations? Will the Prosecutor rely on the propaganda of anti-Marcos and anti-Duterte groups?

For example, before filing a murder case before the office of the fiscal, the Philippine National Police or the National Bureau of Investigation must first investigate and gather evidence (forensic, physical, testimonial, circumstantial, digital, etc.). Which credible and reputable government agency would provide the information to the ICC?

Supposition

Let us assume for the sake of argument that the Pre-Trial Chamber determines probable cause, based on scant evidence provided by the Prosecutor, and names FPRRD as a respondent. I would advise Digong (and his co-respondents) to stay put and send lawyers to The Hague to question the jurisdiction of the Court. The ICC has a process called the confirmation of charges hearing. The Pre-Trial Chamber conducts a public hearing and decides whether or not to confirm any or all of the charges brought by the Prosecutor against a suspect.

Most likely, the ICC will not be able to serve a warrant of arrest in the Philippines. It is saddled with an institutional handicap: the lack of a police force. To enforce its judicial powers and jurisdictional reach, the Court heavily relies on the tacit approval and cooperation of States and Non-State Parties. Otherwise, it cannot make arrests or enforce sentences.

Again, Digong does not give a damn about this recent ICC decision. So what if the Prosecutor is hell-bent on proceeding with the preliminary examination/ investigation? The former president is ready to respond to any criminal case anywhere in the country.

As an independent country, the role of Philippine courts to adjudicate all criminal offenses committed in our territory is preeminent. The ICC should be the court of last resort for the gravest crimes of international concern. It cannot supersede the rights of national criminal courts to act as the court of first instance.