Chapter 8
SUPREME COURT
SAYS YES TO ICC WITHDRAWAL
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’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.
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.
