REP. Edcel Lagman boldly claimed that if we believe in the rule of law, then we should cooperate with the International Criminal Court (ICC) in prosecuting former president Rodrigo Duterte on the allegations that he committed crimes in connection with the drug war his government pursued.
On the contrary, Lagman conveniently forgot the very spirit of the Rome Statute. The ICC operates under the principle of complementarity, where it is designed not to replace but only to complement national justice systems. As such, the ICC acquires jurisdiction only when the prevailing justice system does not have provisions to prosecute the crimes alleged or when, despite the existence of such, it is unable or unwilling to prosecute.
We should not be confused about how we operationalize the rule of law. This is not to be interpreted as adhering only to international law, such as the Rome Statute that created the ICC. As a matter of fact, if one examines the issue more closely, allowing the ICC to acquire jurisdiction when the conditions that warrant it do not exist, in itself, weakens the essence of the Statute or the very lifeblood of a rules-based international system. It patently violates the very fundamental premise of international relations, where state sovereignty is presumed and respected.
Any student of international relations would know that international institutions such as the ICC, and the Rome Statute that created it, operate to place an otherwise anarchistic system of states under a rules-based regime. As such, the issue of sovereignty is not to be taken lightly and dismissed as a mere afterthought or a mere symbolic principle that can be jettisoned to satisfy some political agenda of a political group, be it the ruling political class or the political opposition. And it is here that in order to strengthen the rule of international law, specifically the Rome Statute, we have to make sovereignty central in the determination of jurisdiction.
After all, the ICC and its prosecutorial powers must first be legitimately placed as having proper jurisdiction, and it has the burden to prove that it has indeed acquired jurisdiction. Thus, in order for the ICC, and those who pursue the cases against Duterte, to prove jurisdiction, they have to establish that the Philippines has no provisions in its justice system to prosecute the alleged crimes or that even if there are such provisions, the Philippine government is unable or unwilling to prosecute.
The Philippines, despite its many flaws and imperfections, is not a failed state. It has a justice system that was able to jail two former presidents and convicted several police officers for committing crimes that are anent to Duterte’s war on drugs. It is the same justice system that, while belatedly promulgated, has been praised by no less than former senator Leila de Lima when she was granted bail and is now free from detention. There is no proof that our system is unable or unwilling to prosecute. If there is unwillingness, it is on the part of the alleged victims of Duterte’s drug war, or their families and their supporters, to file cases in local courts.
While there was hesitation that the system of justice may be fair during the time that Duterte was president, such a condition is no longer present. Even de Lima herself celebrated this system that is free from presidential interference when she thanked President Ferdinand Marcos Jr. for allowing the system to operate freely.
We cannot countenance a view where we celebrate the rule of law and the independence of our judiciary when it was about the freedom of Leila de Lima, but we would diminish and doubt its capacity to be impartial and independent when it is about the alleged crimes of Rodrigo Duterte.
Our country’s rule of law has been rated poorly by the World Justice Project (WJP). We ranked 117th among 140 countries in terms of our criminal justice system. The impartiality of the system ranked even worse at 120th. While those who argue that these are powerful warrants to indeed cede to the ICC our sovereign right to try alleged crimes committed by our citizens, even former presidents, it would also be valid to argue that letting the ICC prosecute our own citizens can only further amplify this claim.
Our ranking on the issue of respecting the rights of the accused is even much worse, at 132nd out of 140. This measures whether the basic rights of criminal suspects are respected, including the presumption of innocence, and whether they have access to and challenge evidence used against them. Allowing the ICC to perform the job that our local courts are supposed to do is a tacit admission that, on this aspect, our system of laws is beyond repair and that we do not have faith in it. It affirms the claim that in our jurisdiction, criminal suspects like Duterte are not accorded basic rights. This is a powerful contrapuntal to Lagman’s egregious claim that the ICC’s intervention would be evidence that we believe in the rule of law.
The WJP rankings are products of perception surveys. They are not objective realities. The key to changing this perception is for us to put more faith in our system. And allowing the ICC to acquire jurisdiction will not improve or change that perception.
What is more tragic, however, is the fact that the issue of our membership in the ICC, or whether we should cooperate with its investigation, is no longer a legal issue but has become weaponized by political partisans. We left the ICC not on principle but out of spite by the former president. And now, talk of cooperating with it is fueled less by legal principles but by the partisan political posturing of the House of Representatives, now finding common cause with the political opposition to spite the former president.
It is ironic that Lagman rationalizes the entry of the ICC as predicated on our belief in the rule of law when he and his colleagues are feeding the narrative that it is weak in order to gain political points.
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