Chapter 8
SUPREME COURT
SAYS YES TO ICC WITHDRAWAL
“Nothing matters
but the facts. Without them, the science of criminal investigation is nothing
more than a guessing game.” – Blake Edwards
“Art is an
investigation.” – Twyla Tharp
AFTER Sen. Antonio Trillanes IV and Rep. Gary Alejano
of the Magdalo Party List submitted in 2017 the two separate pieces of information
accusing Rodrigo Duterte and his cohorts of crimes against humanity arising
from the extrajudicial killings (EJKs) of alleged drug users and traders, a lull of almost a year occurred. Finally, it
had resulted in the February 18, 2018 announcement by the International Criminal
Court (ICC), through its Office of the Prosecutor, that it would conduct what
it described a “preliminary investigation” of the charges imputed on Duterte
and his ilk. This is the first of a series of steps to ascertain Duterte’s
culpability or non-culpability.
Then ICC Prosecutor Fatou Bensouda said her office would
initiate a process that might take years to complete mainly to gather
information on whether or not Duterte and his ilk committed any crimes, or whether
or not they were serious enough to be admissible at the ICC, or whether or not
the ICC has jurisdiction, or it falls under the principle of complementarity
since the Rome Statute says it can only prosecute crimes when a member-state
itself fails to do so. In brief, the preliminary investigation would center mainly
on the principles of admissibility, jurisdiction, and complementarity, as what the
Rome Statute has clearly defined.
The Rome Statute empowers the ICC to collate, on its
own, available information and data to serve as the basis if a particular situation
meets the criteria to initiate the next step – the more complicated process of formal
investigation. The preliminary examination could start on the basis of the
information sent by individuals or groups, other states, and intergovernmental
or non-governmental organizations. It can act on a referral from a State Party
or the United Nations Security Council and a declaration lodged by a State
accepting the exercise of jurisdiction by the Court pursuant to the provisions
of the Rome Statute.
The ICC website said: “Once a situation is thus identified,
the factors set out in Article 53 (paragraph 1 and subparagraphs a and c) of
the Statute establish the legal
framework for a preliminary examination. This Article provides that, in order
to determine whether there is a reasonable basis to proceed with an investigation
into the situation, the Prosecutor shall consider: jurisdiction (temporal,
either territorial or personal, and material); admissibility (complementarity
and gravity); and the interests of justice.”
VIOLENT REACTION. After Bensouda
announced the pursuit of preliminary investigation, then presidential spokesman
Harry Roque said in a press briefing that “the President welcomes this
preliminary examination because he is sick and tired of being accused of the
commission of crimes against humanity.” Duterte’s violent reaction, spoken
through a minor Palace official in Roque, was not the end. On March 13, 2018,
Duterte released an official Palace statement announcing the withdrawal of the
Philippines as a state party from the Rome Statute. It was Duterte’s unilateral
decision. He did not consult the Senate, which concurred in 2011 in the
ratification of the multilateral treaty creating the ICC. Neither did he ask
the opinions of local or foreign think tanks, experts, and academics on international law.
Duterte said that “the very considerations upon which
the Philippines agreed to be a signatory to the Rome Statute have not been
observed nor complied with.” He cited the following reasons for withdrawal:
violation of his right to due process of law, lack of jurisdiction over his
person, the supremacy of domestic laws, presidential immunity from suit, and
lack of the requisite publication in the Philippines’ Official Gazette. A
written notification of withdrawal was deposited with the United Nations
on March 17, 2018.
From all indications, Rodrigo Duterte was not advised
properly on the provisions of the Rome Statute. That time, the lawyer, who was said
to have knowledge of international law, was Harry Roque, who openly bragged and
claimed in his press statement that he
had “hours of consultations” with Duterte. How long, when, and where they held consultations was totally unclear. What
was achieved during those consultations was ambiguous too. Withdrawing from the
ICC in a fit of fury did not mean that Duterte would no longer be responsible
for his alleged crimes. Despite the withdrawal of the Philippines, Duterte and
his ilk would have to face criminal responsibility as laid down by the Rome
Statute.
TRUE ENOUGH. On
March 20, 2018, the ICC reacted to Duterte’s act, clarifying that the withdrawal had “no impact on on-going
proceedings or any matter which was already under consideration by the Court
prior to the date on which the withdrawal became effective.” The ICC said
“withdrawal from the court will not change the Philippines’ obligations to
cooperate in a proceeding which had already begun.” Instead, the ICC has encouraged
Manila to cooperate with the ICC in its preliminary examination covering crimes
by Filipinos prior to the effectivity of the withdrawal, participate in the ICC
processes, and respond to the calls of domestic and international human rights mechanisms
to probe, prosecute, and punish perpetrators, who allegedly committed EJKs on
the war on drugs.
Duterte did not get the right advice. There was
commission and omission- largely unwittingly - by his advisers. As clarified
later, the country’s unilateral withdrawal from the ICC would take effect a
year after it has submitted its notice of withdrawal to the United Nations. The
withdrawal starts on March 17, 2019. It was later explained that the ICC would
still conduct preliminary investigation, but it would cover the period 2011-2019, when the Philippines was an ICC
member-state. The ICC has accepted the withdrawal decision initiated solely by
Duterte. What followed next were at least three separate petitions or test
cases, asking the Supreme Court to nullify Duterte’s initiative of unilateral
withdrawal.
Duterte’s unilateral action did not escape the attention
of some senators, who have strong adherence to human rights. Then Senate Minority
leader Franklin Drilon and 13 other senators authored Senate Resolution 289, or
the "Resolution Expressing the Sense of the Senate that Termination of, or
Withdrawal from, Treaties and International Agreements Concurred in by the
Senate shall be Valid and Effective Only Upon Concurrence by the Senate."
The resolution did not take off, as it hardly moved. The Senate inaction on the
resolution had decisive effects on the Supreme Court decision.
For the record, the 17th Congress (2016-2019) had the
following members of the Senate: Vicente Sotto III; Senate President; Ralph
Recto; Senate President Pro-tempore; Miguel Zubiri, Majority Leader; Franklin
Drilon, Minority Leader; Juan Edgardo
Angara; Ma. Lourdes Nancy Binay; Paulo Benigno Aquino IV; Leila de Lima;
Richard Gordon; Sherwin Gatchalian; and Alan Peter Cayetano. Other members: Antonio
Trillanes IV; Joel Villanueva; Cynthia Villar; Joseph Victor Ejercito; Francis
Escudero; Gregorio Honasan II; Risa Hontiveros; Panfilo Lacson; Loren Legarda;
Emmanuel Pacquiao; Francis Pangilinan; Aquilino Pimentel III; and Grace Poe.
Only six senators were listed as petitioners in the
petition assailing as unconstitutional Duterte’s unilateral decision for the
Philippines to withdraw from the ICC. They were Pangilinan, Drilon, Trillanes,
de Lima, Hontiveros, and Aquino. They were the anti-EJKs senators. Cayetano was
listed as among the defendants in the decision because he became the Department
of Foreign Affairs secretary in 2019. Cayetano supported the state-sponsored
EJKs. The remaining 17 senators either favored the EJKs, or were disinterested
to tackle the issue of great magnitude in what appeared to be exchanges for whatever
considerations they could get from the incumbent president. It has been a
common practice that the incumbent president provides concessions to lawmakers,
including senators, in exchange for either inaction or favorable action on
certain favored legislative measures.
UNANIMOUS
OPINION. On March 16, 2021, the Supreme Court came out with a
unanimous opinion that Duterte’s unilateral decision of withdrawal from the Rome
Statute has become “moot” because the ICC has accepted the withdrawal anyway. The
precedent-setting decision, penned by Associate Justice Marvic Leonen, said the
Senate did not assert its prerogative for the Duterte government to seek its concurrence
on his move to withdraw from the ICC. The decision could be regarded as
landmark because it has covered many areas and issues to contribute to
Philippine jurisprudence. Simply, the decision to withdraw stays, but not with the
many ramifications and implications.
It said: “Through these actions, the Philippines
completed the requisite acts of withdrawal. This was all consistent and in
compliance with what the Rome Statute plainly requires. By this point, all that
was needed to enable withdrawal have been consummated. Further, the
International Criminal Court acknowledged the Philippines' action soon after it
had withdrawn. This foreclosed the existence of a state of affairs correctible by this Court's
finite jurisdiction. The Petitions were, therefore, moot when they were filed.
The International Criminal Court's subsequent consummate acceptance of the
withdrawal all but confirmed the futility of this Court's insisting on a
reversal of completed actions.”
In brief, the High Court has sustained Duterte’s
unilateral decision of withdrawal. It did not give in any way to the
petitioners’ demand for the Supreme Court to declare as unconstitutional the
withdrawal of the Philippines from the Rome Statute. In its opinion, the
Duterte government did not violate the constitutional provisions on entering
into a treaty. Neither did the High
Court require the Duterte government to take back the notice of withdrawal it
had submitted to the United Nations. But it did not end there as it
acknowledged the country’s commitment to the ICC when it was a member-state.
‘NOT TABLED.’ It
continued: “Moreover, the Senate never sought to enforce what would have been
its prerogative to require its concurrence for withdrawal. To date, Resolution
No. 289, which seeks to express the chamber's position on the need for
concurrence, has yet to be tabled and voted on. Individual senators have
standing to question the constitutionality of the actions of their chamber.
Yet, in this case, as shown by the Resolution which petitioners co-authored,
they acknowledged that an action by the Senate was necessary before coming to
this Court. Thus, no actual conflict or constitutional impasse has yet arisen
even as implied by their actions.”
The landmark decision has established a clear
distinction on the extent of presidential powers on a treaty. It is not
absolute, it said. The legislative participation could be a way to check abuses
of the presidential powers in treaty-making and withdrawal. In the case of
Duterte’s unilateral decision for the country’s withdrawal from the Rome
Statute, the Supreme Court had laid the blame squarely on the Senate for its
failure to assert its power over the presidential powers on treaty-making and
withdrawal.
It said: “Nonetheless, the President's discretion on
unilaterally withdrawing from any treaty or international agreement is not
absolute. As primary architect of foreign policy, the president enjoys a degree of leeway to withdraw from treaties.
However, this leeway cannot go beyond the president's authority under the
Constitution and the laws. In appropriate cases, legislative involvement is
imperative. The president cannot unilaterally withdraw from a treaty if there is subsequent legislation
which affirms and implements it.”
It said: “The extent of legislative involvement in
withdrawing from treaties is further determined by circumstances attendant to
how the treaty was entered into or came into effect. Where legislative
imprimatur impelled the president's action to enter into a treaty, a
withdrawal cannot be effected without concomitant legislative sanction.
Similarly, where the Senate's concurrence imposes as a condition the same concurrence for
withdrawal, the president enjoys no
unilateral authority to withdraw, and must then secure Senate concurrence.”
It said: “Thus, the president can withdraw from a
treaty as a matter of policy in keeping with our legal system, if a treaty is unconstitutional or contrary to
provisions of an existing prior statute.
However, the president may not unilaterally withdraw from a treaty: (a) when
the Senate conditionally concurs, such that it requires concurrence also to
withdraw; or (b) when the withdrawal itself will be contrary to a statute, or to a legislative authority to negotiate and enter
into a treaty, or an existing law which
implements a treaty.”
HISTORICAL
BACKGROUND. It was the administration of Fidel Ramos that
labored from 1996 until 1998 under the most difficult circumstances to provide inputs
for the drafting of the Rome Statute. At that time, the International Criminal
Tribunal for the former Yugoslavia (ICTY) was being contemplated as the ad hoc
body to hold Serbian President Slobodan Milosevic accountable for the “ethnic
cleansing” in the Balkan. But a more permanent world court was already being
envisioned to prevent despots from murdering their people.
On Dec. 26, 2000, President Joseph “Erap” Estrada
signed the Rome Statute to signify its
ratification and the country’s commitment to abide by its provisions. It took almost
three more years for the International Criminal Court to get created. President Gloria Macapagal Arroyo did not work
for its concurrence by the Senate but her administration came out instead with
Republic Act 9851. According to Norberto Gonzales, who served as her defense
secretary, the Arroyo Cabinet was divided on the move to send it to the Senate
for concurrence. There were discussions among themselves. In the end, they had opted
for the enactment of a local law, the provisions of which are similar to the
Rome Statute’s.
The decision said: “On December 11, 2009, with Senate
concurrence to the Rome Statute still pending, then President Gloria
Macapagal-Arroyo signed into law Republic Act No. 9851, otherwise known as the
Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity. Republic Act No. 9851 replicated many of the
Rome Statute's provisions.
It said: “Some provisions, however, are significantly
different. In some aspects, the law went beyond the Rome Statute. It broadened
the definition of torture, added the conscription of child soldiers as a war
crime, and stipulated jurisdiction over crimes against humanity anywhere in the
world, as long as the offender or victim is Filipino. This removes
complementarity as a requirement for prosecution of crimes against humanity
under the ratified treaty. While the treaty's language had to be refined to
take the interests of other countries into consideration, the law was
independently passed considering all our interests. This independent, voluntary
initiative strengthened our own criminal justice system.”
“Senate concurrence to the Rome Statute was obtained
following President Benigno Aquino Ill's election. On August 23, 2011, the
Senate, with a vote of 17-1, passed
Resolution No. 546-enabling the Philippines' consummate accession to the Rome
Statute. On August 30, 2011, the
Philippines deposited the instrument of ratification of the Rome Statute. On
November 1, 2011, the Rome Statute entered into force in the Philippines. The
country was the 16th state party to belong to the Group of Asia-Pacific State
Parties in the International Criminal Court.”
The Supreme Court decision acknowledged Duterte’s
unilateral move to withdraw, but it neither mentioned nor stressed his reasons
for withdrawal. Except one, which was the failure to have the Rome Statute
published in the Official Gazette, the
official periodical of all state initiatives, pronouncements, and statements. Its
exact words: “On March 15, 2018, the Philippines announced that it was
withdrawing from the International Criminal Court. President Duterte claimed
that the country never became a state
party to the Rome Statute since the treaty was not published in the Official
Gazette.” The decision did not make any further reference to the other reasons
raised by Duterte in his ICC withdrawal statement. This was tantamount to its way of dismissing their
importance.
The decision cited the official act of the
Philippines on the withdrawal: “On March 16, 2018, the Philippines formally
submitted its Notice of Withdrawal from the International Criminal Court to the
United Nations. Enrique Manalo, the Permanent Representative of the Republic of
the Philippines to the United Nations in New York, deposited the Note Verbale
to Maria Luiza Ribeiro Viotti, Chef de Cabinet of the United Nations'
Secretary-General Antonio Guterres.”
SENATE
CONCURRENCE. In their petition for certiorari and mandamus before
the High Court, Pangilinan and his fellow senators argued that Duterte’s move
for the Philippines to withdraw from the Rome Statute was unconstitutional
because it was done unilaterally without the Senate’s concurrence. They argued
that the unilateral withdrawal had the same effect as repeal of a law enacted by
Congress. Hence, the president cannot repeal the law, a power that rightfully belongs
to Congress. Following that line of argument, the Rome Statute cannot be
repealed without the concurrence of two-thirds vote of the Senate.
In a separate petition, the Philippine Coalition for
the Establishment of the International Criminal Court led by Ann Loretta
Rosales, a former lawmaker and street protester, argued that Duterte’s decision
for withdrawal has impaired the constitutional right to life, personal
security, and dignity of every citizen.13 They argued that ratification and
withdrawal from a multilateral treaty require the Senate's concurrence. They
claimed that, contrary to Duterte’s assertion, the Rome Statute was effective in domestic jurisdiction by virtue
of the Constitution's incorporation clause, despite its lack of publication in
the Official Gazette. They asked the High Court to declare as “invalid” the
notice of withdrawal. The third petition filed by the Integrated Bar of the
Philippines (IBP), the country’ premier organization of lawyers, echoed almost
the same lines of arguments in the first two petitions. The High Court
integrated the three separate petitions into one and issued a single opinion.
***
LANDMARK
DECISION
By all means, the consolidated petition constituted a
landmark initiative that required an appropriate interpretation of the law by
the Supreme Court. Their importance emanates from the fact that all decisions
by the Supreme Court, as the highest judicial body, form part of the laws of
the land along with laws that have been enacted by Congress and the executive
orders and implementing rules laid down by the Executive. But it should be said
that the Philippines has the choice to rejoin the ICC, if it wishes to do so in
the future.
In denying the petition to declare as
unconstitutional Duterte’s unilateral decision, the Supreme Court said: “Petitioners
are before us through the vehicles of petitions for certiorari and mandamus
under Rule 65 of the Rules of Court, praying that the Philippine Notice of
Withdrawal be declared void ab initio, and that the withdrawal itself be
declared invalid. They also pray for a writ of mandamus to direct the Executive
Secretary to recall and revoke the Notice of Withdrawal, and to submit the
issue before the Senate for its deliberation. These Petitions fail on
significant procedural grounds. It is
true that this Court, in the exercise of its judicial power, can craft
a framework to interpret Article VII,
Section 21 of the Constitution and determine the extent to which Senate
concurrence in treaty withdrawal is imperative. However, it will be excessive
for any such framework to be imposed on the circumstances surrounding these
present Petitions, seeing as how the incidents here are fait accompli.”
It said: “Petitioners want a different political
result from what the President has done, and so they implore this Court to veto
his action, raising serious policy implications in so doing. This Court must
exercise restraint in the face of political posturing, and must anchor its
determination not on political results, but on principles and the text found in
the Constitution and law. The most basic of these principles are parameters
that determine the justiciability of cases. Judicial office impels capacity to
rule in keeping with what the Constitution or law mandates, even when
potentially contrary to what a magistrate may prefer politically.”16
NO EXIT
MECHANISM. The High Court said “treaty-making is a function lodged in the Executive branch,
which is headed by the president,” and that “a treaty's effectivity depends on
the Senate's concurrence, in accordance with the Constitution's system of checks and balances.”
But while entering into a treaty has a clear mechanism under the Constitution,
the decision noted that it has no no clear exit mechanism. The Constitution
does not mention a specific way for the country to withdraw from treaties and
executive agreements. It said:
“While Senate concurrence is expressly required to
make treaties valid and effective, no similar express mechanism concerning
withdrawal from treaties or international agreements is provided in the
Constitution or any statute. Similarly, no constitutional or statutory
provision grants the president the unilateral power to terminate treaties. This
vacuum engenders the controversy around which the present consolidated
Petitions revolve.”
In what appeared to be a single sweep, the decision
said: “All told, the president, as primary architect of foreign policy,
negotiates and enters into international agreements. However, the president's
power is not absolute, but is checked by the Constitution, which requires
Senate concurrence. Treaty-making is a power lodged in the executive, and is
balanced by the legislative branch. The textual configuration of the
Constitution hearkens both to the basic separation of powers and to a system of checks and balances. Presidential
discretion is recognized, but it is not absolute. While no constitutional mechanism
exists on how the Philippines withdraws from, an intemational agreement, the
president's unbridled discretion vis-a-vis treaty abrogation may run counter to
the basic prudence underlying the entire system of entry into and domestic
operation of treaties.”
NOT SIMILAR. The
decision rejected the petitioners’ claim that the multilateral treaty concurred
in 2011 by the Senate could be regarded similar or akin to an enacted legislation.
It said: “In contrast, in the case of a
treaty or international agreement, the president, or those acting under
their authority, negotiates its terms. It is merely the finalized instrument
that is presented to the Senate alone, and only for its concurrence. Following
the president's signature, the Senate may either agree or disagree to the
entirety of the treaty or international agreement. It cannot refine or modify
the terms. It cannot improve what it deems deficient, or tame apparently
excessive stipulations.
“The legislature's highly limited participation means
that a treaty or international agreement
did not weather the rigors that attend regular lawmaking. It is true that an
effective treaty underwent a special
process involving one ·of our two legislative chambers, but this also means
that it bypassed the conventional republican mill.”
It said: “The extent of legislative involvement in
withdrawing from treaties is further determined by circumstances attendant to
how the treaty was entered into or came into effect. Where legislative
imprimatur impelled the president's action to enter into a treaty, a withdrawal
cannot be effected without concomitant legislative sanction. Similarly, where
the Senate's concurrence imposes as a condition the same concurrence for
withdrawal, the president enjoys no unilateral authority to withdraw, and must
then secure Senate concurrence.”
The concluding words: “Here, the withdrawal has been
communicated and accepted, and there are no means to retract it. This Court
cannot extend the reliefs that petitioners seek. The country’s withdrawal from
the Rome Statute has been properly received and acknowledged by the United
Nations Secretary-General, and has taken effect. These are all that the Rome
Statute entails, and these are all that the international community would
require for a valid withdrawal. Having
been consummated, these actions bind the Philippines.”
It added: “Moreover, while its text provides a
mechanism on how to withdraw from it, the Rome Statute does not have any proviso
on the reversal of a state party's withdrawal. We fail to see how this Court
can revoke - as what petitioners are in effect asking us to do - the country's
withdrawal from the Rome Statute, without writing new terms into the Rome
Statute.”
NO MANDAMUS. The
decision rejected the petition to issue a writ of mandamus to compel the
Duterte government to withdraw the notice of withdrawal from the Rome Statute.
It said: “Issuing a writ of mandamus
will not ipso facto restore the Philippines to membership in the International
Criminal Court. No provision in the Rome Statute directs how a state party may reverse its withdrawal from
the treaty. It cannot be guaranteed that the Note Verbale's depositary, the
United Nations Secretary-General, will assent to this Court's compulsion to
reverse the country's withdrawal.
“This Court is
not an international court. It may only rule on the effect of
international law on the domestic sphere. What is within its purview is not the
effectivity of laws among states, but the effect of international law on the
Constitution and our municipal laws. Not only do petitioners pray for a relief
directed at a discretionary function, but the relief they
seek through this Court's finite authority is ineffectual and futile.
Ultimately, mandamus will not lie.”
It said: “In withdrawing from the Rome Statute, the
President complied with the treaty's requirements. Compliance with its textual
provisions cannot be susceptible of an interpretation that his act violated the
treaty. Hence, withdrawal per se from the Rome Statute does not violate pacta
sunt servanda.”
NO
NULLIFICATION. The High Court has made clear that although Duterte
had initiated the withdrawal of the Philippines from ICC, it does not mean that
he and his ilk are free from the responsibilities specified in the Rome
Statute. It said: “Withdrawing from the
Rome Statute does not discharge a state
party from the obligations it has incurred as a member.” It cited as basis the Article
127 (paragraph 2) of the Rome Statute.
It final shot: “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 1 7, 2019.” Hence, Duterte
and his ilk cannot in any way escape responsibility from the bloody but failed
war on drugs. No less than the Supreme Court has acknowledged their responsibilities
and obligations under the Rome Statute.
***
BLACK AND WHITE
Although the decision emphasized judicial restraint
in the treatment of the unilateral withdrawal of the Philippines from the Rome
Statute, it has made sure that the Philippines would adhere to the ICC
provisions, when it was still a member-state. The withdrawal does not mean
outright loss of obligations to the ICC. In what could be considered an
iron-clad, black and white part of the Supreme Court decision, the following
has to be cited:
“Withdrawing from the Rome Statute does not discharge
a state party from the obligations it has incurred as a member. Article 127(2)
provides: ‘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, including any financial obligations which may have accrued. 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.’
“A state party withdrawing from the Rome Statute must
still comply with this provision. 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.
“Further, as petitioners in G.R. No. 239483
underscored: [U]nder this reverse complementarity provision in [Republic Act
No. 9851, the Preliminary Examination opened by the [International Criminal
Court] on the President's drug war is not exactly haram (to borrow a word used
in Islam to mean any act forbidden by the Divine). Assuming such a [Preliminary
Examination] proceeds . . . when Art. 18 (3) of the Rome Statute comes into
play, [Republic Ad No. 9851 may be invoked as basis by Philippine authorities
to defer instead to the [International Criminal Court] in respect of any
investigation on the same situation.
“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.”
The High Court dismissed the petitioners’ claim that
the unilateral withdrawal of the country’s membership from the ICC “violated
their right to be provided with ample remedies for the protection of their
right to life and security.” This is baseless, according to the High Court. “This
fear of imagined diminution of legal remedies must be assuaged. The
Constitution, which embodies our fundamental rights, was in no way abrogated by
the withdrawal. A litany of statutes that protect our rights remain in place
and enforceable,” it said.
This is something Rodrigo Duterte and cohorts have a
hard time to get to understand. Even their purported lawyers do not understand
this issue either. They have kept on insisting that the withdrawal of the
Philippines from the Rome Statute has extinguished their liability or
responsibility from the Rome Statute. Hence, they have insisted the ICC has no
power to run after them. This is false, by all means.
The Supreme Court has laid down the consequences if
ever a state like the Philippines refuses to cooperate with the ICC in its
probes.The operative phrase is “full cooperation.” The ICC has the power to
employ ways to ensure the personal safety of victims. This is a matter that
Duterte, cohorts and lawyers have not seen or understood.
***
LOCAL
LEGISLATION
THE Supreme Court went to discuss the Republic Act
No. 9851, or the Philippine Act on Crimes Against International Humanitarian
Law, Genocide, and Other Crimes Against Humanity,’ a local legislation, which
it said “ echoes the substantive provisions of the Rome Statue.”Then President
Gloria Macapagal-Arroyo signed it into law on December 11, 2009, or two years
before the Senate concurred with the Rome Statute. This law could be regarded
as a crucial element of the government's insistence on its ability and willingness
to prosecute the persons most responsible for the widespread killings.
The Supreme Court said:
“Republic Act No. 9851 covers rights similarly
protected under the Rome Statute. Consequently, no new obligations arose from
our membership in the International Criminal Court. Given the variances between
the Rome Statute and Republic Act No. 9851, it may even be said that the Rome
Statute amended Republic Act No. 9851.”
The High Court said RA 9851 declares the State policy
of valuing "the dignity of every human person and guarantee[ing] full
respect for human rights, including the rights of indigenous cultural
communities and other vulnerable groups, such as women and children." It
guarantees protection against "the most serious crimes of concern to the
international community as a whole . . . and their effective prosecution must
be ensured by taking measures at the national level in order to put an end to
impunity for the perpetrators of these crime. It recognizes that the State must
"exercise its criminal jurisdiction over those responsible for
international crimes."
Its significance lies in the fact that this
legislation could be cited as a basis for prosecution for those behind the
spate of EJKs. If properly implemented, it could defeat the principle of
complementarity, which critics have been using to run after the guilty parties.
In the wake of the crimes against humanity charges against Duterte and his ilk
before the ICC, the Supreme Court said: “In the interest of justice, the
relevant Philippine authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking
the prosecution of such crime. Instead, the authorities may surrender or
extradite suspected or accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant to the applicable
extradition laws and treaties.”
In the wake of the ongoing process at the ICC, this
law can be shelved to run after Duterte and cohorts, who were alleged to have
been responsible for the death of thousands in the bloody but ill-fated war on
drugs. The charges of crimes against humanity that had been lodged against
Duterte and ilk take precedence. The process at the ICC assumes importance in
the wake of the failure of the Philippine government to prosecute Duterte for
the failed war on drugs.
It continued: “Republic Act No. 9851 expressly
confers original and exclusive jurisdiction on regional trial courts over the
offenses it punishes. It also provides that this Court shall designate special
courts to try these cases. Unlike the Rome Statute, Republic Act No. 9851
dispenses with complementarity as a requirement for prosecution of crimes
against humanity. Notably, Republic Act No. 9851 proclaims as state policy the
protection of human rights of the accused, the victims, and the witnesses, and
provides for accessible and gender-sensitive avenues of redress:
“The State shall guarantee persons suspected or
accused of having committed grave crimes under international law all rights
necessary to ensure that their trial will he fair and prompt in strict
accordance with national and international law and standards for fair trial, It
shall also protect victims, witnesses and their families, and provide
appropriate redress to victims and their families.. It shall ensure that the
legal systems in place provide accessible and gender-sensitive avenues of
redress for victims of armed conflict.”
The Supreme Court has come to list down what it
described as “significant differences” between the Rome Statute and Republic
Act No. 9851. The local law includes torture as one of the punishable crimes. The Rome Statute does not.
The decision defines torture as "the intentional infliction of severe pain
or suffering, whether physical, mental, or psychological, upon a person in the
custody or under the control of the accused; except that torture shall not
include pain or suffering arising only from, inherent in or incidental to,
lawful sanctions." Psychological means of torture are not covered by the
Rome Statute. This is a departure from Republic Act No. 9745, or the
Anti-Torture Act of 2009, which limits torture to those "inflicted by or
at the instigation of or with the consent or acquiescence of a person in
authority or agent of a person in authority"for specific purposes.
Unlike the Rome Statute, Republic Act No. 9851 also
adds or includes among other crimes against humanity persecution against any
individual, group, or collectivity based on their sexual orientation. Enforced
or "involuntary disappearance of persons" is also a punishable crime
against humanity. It holds superiors liable as principals for crimes committed
by subordinates under their effective command and control. This provides for
command responsibility "as a form of criminal complicity" that
jurisprudence has recognized:
In other words, command responsibility may be loosely
applied in amparo cases in order to identify those accountable individuals that
have the power to effectively implement whatever processes an amparo court
would issue. In such application, the amparo court does not impute criminal
responsibility but merely pinpoint the superiors it considers to be in the best
position to protect the rights of the aggrieved party.
Such identification of the responsible and
accountable superiors may well be a preliminary determination of criminal
liability which, of course, is still subject to further investigation by the
appropriate government agency.
Relatedly, the legislature came up with Republic Act
No. 98)1 to include command responsibility as a form of criminal complicity in
crimes against international humanitarian law, genocide and other crimes. RA
9851 is thus the substantive law that definitively imputes criminal liability
to those superiors who, despite their position, still fail to take all
necessary and reasonable measures within their power to prevent or repress the
commission of illegal acts or to submit these matters to the competent
authorities for investigation and prosecution.
All told, the more restrictive Rome Statute may have
even weakened the substantive protections already previously afforded by
Republic Act No. 9851. In such a case, it may well be beneficial to remove the
confusion brought about by maintaining a treaty whose contents are inconsistent
with antecedent statutory provisions.
