Septugenarian Notes: MENARDO GUEVARRA CLAIMS ARE UNTRUE

 It irritates me no end whenever Solicitor General Menardo Guevarra claims that the International Criminal Court (ICC) has no more jurisdiction on the Philippines since it has withdrawn in 2019 its membership in the Rome Statute, the treaty that has created the ICC. My ever suspicious mind could not help but think that Guevarra wants to exculpate himself of any responsibility in the bloody but ill-fated war on drugs of Rodrigo Duterte. Prior to his appointment at the OSG, Guevarra was the justice secretary. That was during the incumbency of Duterte. While at the DoJ, Guevarra never took initiatives to pursue honest to goodness investigations of the war on drugs. The ICC acknowledged the failure of the Duterte government to run after those behind the spate of EJKs in the country. On the contrary, Guevarra was part of the massive coverup to hide the truth from the Filipino people. Guevarra should be indicted too at the ICC.

Guevarra's role in the war of drugs has not be fully studied and documented. This is something that should be looked into. I am now completing my second book "BUMPS Fifty Years of Democracy and Dictatorship in the Philippines (1972-2022)." Chapter of this book is an update of the war on drugs. This year, I finished my first book "KILL KILL KILL Extrajudicial Killings in the Philippines; Crimes Against Humanity v. Rodrigo Duterte Et Al." The following are excerpts of Chapter 10 of my second book. It explains why the Philippines is still responsible for those EJKs although it is no longer a member of the Rome Statute. This belies Guevarra's claims, which are not based on the Supreme Court decision in 2021. It appears Guevarra does not know the provisions of the Rome Statute and the Supreme Court decision. He is grossly ignorant of the law.

UNANIMOUS CONCURRENCE. The Supreme Court, in the landmark 2021 decision penned by Associate Justice Marvic Leonen and unanimously concurred by all magistrates, has decided that Duterte did not violate the 1987 Constitution when the latter made the unilateral decision for the Philippines to withdraw its membership in the Rome Statute, the multilateral treaty that has created the International Criminal Court (ICC). Duterte did not consult with leaders of Congress in his unilateral decision. Neither did he consult with other leaders in the Exeuctive Branch. It was his unilateral decision.

 

But the withdrawal decision does not mean that Duterte and his ilk are no longer responsible for the spate of EJKs that took place when the Philippines was a member of the Rome Statute. It does not exculpate them of any responsibility set forth in the Rome Statute. On the contrary, they have remained responsible for the numerous violations they committed when the Philippines was a member-state of the Rome Statute.

 

On the contrary, the High Court’s decision binds the government of Ferdinand Marcos Jr. to enforce the Rome Statue when the Philippines was still a member. It has dropped words that the Marcos government has no choice but to turn over Duterte and his co-accused to the ICC, if ever it asks for Duterte and ilk to face prosecution and trial. The provisions of the Romes Satute is clear on this aspect. Framers of the Rome Statute have anticipated the withdrawal of member-states, when its leaders stand accused of violations of its citizens. Its framers foresaw this eventuality and that they have placed an iron-clad provision to initiate proceedings against these violators even when the withdrawal is to happen.

 

The country is no not an ICC member on March 17, 2019, but the ICC has ruled that it could investigate the EJKs because they occurred when the country was still a party to the Rome Statute. The ICC probe covers the EJKs committed from Nov. 2011 to March 2019, including the EJKs in Davao City, while Duterte was its mayor and thousands of EJKs that occurred nationwide in his war on drugs. This is something that Duterte, a lawyer, did not know and, until now, refuses to understand.

 

JUDICIAL RESTRAINT. The Supreme Court decision gave a judicial restraint treatment of the unilateral withdrawal of the Philippines from the Rome Statute. But it has ensured that the government would have to adhere to the provisions of the Rome Statute, when it was still a member-state. In brief, the withdrawal initiated solely by Duterte in what appeared to be an unpredictable fit of frenzy does not mean outright loss of the country’s 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 from the SC decision:

 

“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.”

 

Hence, the Supreme Court dismissed the  claim that the unilateral withdrawal of Philippine membership from the Rome Statute “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.

 

In the first book, this author concludes this is a matter that Duterte and cohorts have had a hard time 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 outright their liability or responsibility from the Rome Statute. Hence, they have insisted the ICC has no power to run after them. This oversimplistic view and interpretation is false and unimplementable, 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.