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Does the International Criminal Court (ICC) have jurisdiction over killings in the Philippines that allegedly were committed under the instruction and oversight of Rodrigo Duterte?
It’s a straight question with less straight answers. Here are the things you need to know over the issue.
Duterte withdrew the Philippines from the ICC in March 2018 just after the ICC prosecutor opened a preliminary examination. He did it without asking for the permission of Congress, even though ratifying it needed their approval. The withdrawal became effective in March 2019. That is why the ICC case only covers Davao Death Squad (DDS) and drug war killings up to March 2019 only.
Duterte asserts the ICC had lost jurisdiction because it withdrew. ICC Prosecutor Karim Khan fought hard to convince ICC judges to allow him to continue, which they did twice, the last one in January 2023.
By this time, it was already the term of President Ferdinand Marcos Jr who also believed that ICC has no jurisdiction. So in February 2023, Marcos allowed Solicitor General Menardo Guevarra to hire a foreign external lawyer to beef up that non-jurisdiction argument in the ICC, in order to stop the investigation. They went to the appeals chamber for one more shot.
The Marcos-Guevarra tandem, with the help of British barrister Sarah Bafadhel, almost won but lost by a hairline. The ICC appeals chamber voted 3-2 in July 2023 to let the investigation continue.
What are the legal issues?
Article 127 of the Rome Statute says: “Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”
For many human rights lawyers, this means that anything that started before withdrawal shall not be affected by the withdrawal. For them, the 2019 withdrawal only cuts off the jurisdiction 2019 beyond, and not 2011 to 2019 which was when the Philippines was a member.
But notice the wording of the Rome Statute. It says that what will not be affected by withdrawal are “criminal investigations and proceedings” that already started before withdrawal.
What started before withdrawal? The prosecutor’s preliminary examination, step 1 of the ICC process. The prosecutor only opened investigation in 2021.
Part of the argument of the Team Marcos-Guevarra-Bafadhel was that the preliminary examination opened in February 2018 was not the “criminal investigation and proceeding” that Article 127 mentioned. And therefore, Article 127 does not apply.
In the July 2023 decision of the appeals chamber, two judges agreed the jurisdiction was lost. The three other judges believed that the issue of jurisdiction was improperly raised. For the three judges, they cannot answer a question that was improperly raised. They allowed the investigation to continue but skipped the question on jurisdiction. Here’s an explainer on that 3-2 vote.
At the time, Bafadhel said: “The government would still be able to intervene and assert that the court does not have jurisdiction and that would be another appropriate time to assert its sovereign rights and to limit the court’s ability and reach in that respect.”
This is now the appropriate time but unluckily for Duterte, he has now fallen out with Marcos. Marcos can just simply say now that we have withdrawn and therefore he no longer has the obligation to help this defense. This is why the involvement of Interpol was crucial for this play – it allows Marcos to arrest Duterte via Interpol, but keep a hand off of any ICC matter.
Guevarra recusing
Unluckily for Marcos on the other hand, rather than for Guevarra to explain all this to the Supreme Court, he would rather recuse or opt out of defending the president. Based on previous pronouncements by the justice department, the Marcos government would likely highlight that the arrest and transfer were based only on Interpol commitments, and our local RA 9851 or International Humanitarian Law (IHL), and not ICC.
Our RA 9851 or IHL is a local law that transformed international criminal law into a domestic law, and a provision there says we can surrender a person wanted for crimes against humanity to an international court.
Has the Supreme Court said anything about this before? No and yes. When groups went to the Supreme Court to challenge Duterte’s unilateral withdrawal from the ICC, the justices issued a decision only when the withdrawal became effective. Their decision was a convenient moot. Nothing to decide because the damage has been done, so to say.
But in that lengthy decision, the Supreme Court threw a consolation line to human rights advocates: “Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate.”
Some lawyers believe that line is obiter dictum, or an opinion made by a justice that does not set a precedent, or is not necessarily legally binding. Some lawyers think it was not obiter, that it is useful.
Retired Supreme Court senior associate justice Antonio Carpio says it carries weight. He said: “The Supreme Court has already unanimously ruled that the ICC retains jurisdiction over offenses committed while the Phil was still a member of the Rome Statute. Guevarra cannot simply gloss over this unanimous decision of the Supreme Court.”
“Guevarra could also have cited RA 9851 which allows the government to surrender Duterte to the ICC even if the Philippine has withdrawn from the Rome Statute,” said Carpio.
Duterte can use these all to his advantage, but he has another dilemma. He asserts that the ICC has no jurisdiction over him, yet he invokes Article 59 of the Rome Statute that says he should have been brought over to a local judge when he was arrested.
It’s important for them to invoke improper arrest, because it’s another way to attack the jurisdiction.
Harry Roque, an ICC-accredited counsel who also now wants to defend Duterte in the ICC, said they can use a decision by the South Africa Constitutional Court.
“You cannot right a wrong by committing another wrong. And that the legality of the arrest by which jurisdiction was acquired over the person of the accused should be reason enough to divest the court of jurisdiction to continue hearing the case,” Roque said in a press conference on Monday, 17. – Rappler.com
