[The Slingshot] The persistent lie that ICC has no jurisdiction

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Bato dela Rosa, after all, has belief in the Supreme Court. Dela Rosa attempted to free Rodrigo Duterte by petitioning the High Court to issue a Temporary Restraining Order and certiorari that will block his principal’s arrest and extradition to the International Criminal Court. The petition was denied. Will his faith in the SC be optional? 

Over and over, Dela Rosa repeats the worn-out line that the ICC has no jurisdiction on the Duterte complaints filed with the international tribunal. Dela Rosa said on January 27, 2025 in a Senate press release — paid for by taxpayers’ money: “My belief is solid that the ICC has no jurisdiction in our country.” He then said he would not entertain any calls from the ICC on his phone, as it will be tantamount to acknowledging their jurisdiction over the Philippines.

How does the Dela Rosa mind work on his non-jurisdiction insistence, if at all he has the mind to put into it? It rests on a single logic: “Our withdrawal of membership was effective; clearly, it has no more jurisdiction.” Dela Rosa of course parrots the Duterte line of logic.

Now that the day of irony has come with Duterte as ICC detainee, let us reprise what he exactly said when he disengaged the Philippines from the international tribunal. It was nothing about the Philippines. His letter of withdrawal from the ICC dated March 13, 2018 (and deposited in the United Nations on March 16, 2018) read like a personal letter of his gripes against the tribunal. 

“There appears to be a concerted effort on the part of the U.N. special rapporteurs to paint me as a ruthless and heartless violator of human rights who allegedly caused thousands of extrajudicial killings.”

“The ICC’s examination was premature, and effectively created the impression that I am to be charged… for serious crimes falling under its jurisdiction.”

He said he would leave the ICC “immediately.” But outside the Philippines, his vitriol was nada. The withdrawal took effect one year later in 2019. The only other country to withdraw was Burundi. But what was Burundi? It was a nation of unrest in 2015 when President Pierre Nkurunziza defied his constitutional term limit by running for president a third time because of “divine will.”

When protests erupted, Nkurunziza employed a youth group to carry out summary executions, tortures, and beatings. These atrocities were brought before the ICC. The self-absorbed Duterte had no inkling that, in fact, the two countries that withdrew from the ICC had similar political fates perpetrated by both presidents — extrajudicial killings, including the murder of critics and journalists.

Nkurunziza’s letter of withdrawal sounded exactly like Duterte’s gripes: “The ICC was targeting Africans.”

In both instances, the ICC’s response was uniform per the Rome Statute that created it and which the Philippines signed November 1, 2011, effectively making it the 117^th member state. ICC spokesperson Fadi El-Abdallah told European media that “Article 127 states that withdrawal does not affect the jurisdiction of the ICC over the crimes that have been committed” while the country was a member.

And that, precisely, is what our very own Supreme Court declared on the issue of non-jurisdiction that Bato dela Rosa conveniently elides. 

On March 16, 2021, senators Francis Pangilinan, Antonio Trillanes IV, Leila de Lima, Risa Hontiveros, Franklin Drilon, and Paolo Benigno Aquino IV, challenged the Duterte disengagement before the High Tribunal. With them were two other petitioners, the Philippine Coalition for the Establishment of the International Criminal Court (Loretta Ann Rosales, Aurora Parong, et al), and the Integrated Bar of the Philippines.

This writer, a non-lawyer, cites a very fundamental point when the Philippines signed the Rome Statute: that by virtue of Article VII Section 21 of the 1987 Constitution, the Rome Statute became part of the law of the land. The Supreme Court mentioned that vital fact in its jurisprudence on the consolidated petitions.

When Duterte withdrew our membership, did the Rome Statute also cease its legal efficacy? Duterte often stated that the ICC no longer had jurisdiction. Bato dela Rosa parrots the same line, as does Robin Padilla today. 

Because Duterte’s statements — even if they are fake news and highly disinformative — are parroted as well by his loyal constituents hook, line, and sinker, they are, in fact, fake news vis-à-vis what the Supreme Court ruled: 

A state party withdrawing from the Rome Statute must still comply with this provision (Article 127 (2): A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was as a Party to the Statute.

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.

Until the withdrawal took effect on March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute. Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court.

Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated here. The Philippines remained covered and bound by the Rome Statute until March 17, 2019.

On Wednesday, March 12, Duterte was officially taken into custody by the ICC. This is fully consistent with the SC decision: the ICC has jurisdiction over cases that cover the period when the Philippines was still a member; for example, the Davao Death Squad killings when Duterte was mayor, and the extrajudicial killings in his war on drugs when he was president, and Bato dela Rosa was the tokhang master, Bong Go, the paymaster.

Duterte Diehard Supporters often attack with the line: “If you are against Duterte, adik ka (You are a drug addict).”

Here were honorable drug addicts: All 15 justices signed on March 16, 2021. – Rappler.com