Jurisdiction issue a ‘gaping hole’ in ICC ruling – OSG
BY VICTOR REYES and ASHZEL HACHERO
THE PNP yesterday said it will not cooperate in the International Criminal Court (ICC) investigation into the alleged crimes against humanity committed by the police force in pursuit of the violent drug war of the former Duterte administration.
The ICC’s Appeals Chamber on Tuesday rejected the Philippine government’s appeal to stop the investigation, paving the way for the resumption of the ICC prosecutor’s probe.
PNP spokesperson Col. Jean Fajardo said the police force will stick to the position taken by the Marcos administration that the ICC cannot pursue the probe because it no longer has jurisdiction over the Philippines.
“We will follow the lead of the national government. Our national leadership has already spoken that there is a question on sovereignty and jurisdiction of the ICC,” said Fajardo, who specifically cited the opposition of Justice Secretary Jesus Crispin Remulla against the ICC probe.
“As part of the executive branch, we will follow and support the lead of the national government not to participate in the said investigation to be conducted by the ICC,” she said.
She echoed the Marcos government’s position that the international court cannot probe the alleged drug war killings and abuses because the ICC no longer has jurisdiction over Manila after the Duterte administration withdrew from the Rome Statute.
“Hence, there is really a question of jurisdiction. As to the extent and nature of cooperation, we (PNP) will take the lead (of the government). Whatever the national leadership will say, the PNP will follow,” said Fajardo.
Asked if the PNP will provide the ICC with documents pertaining to the war on drugs, Fajardo said such a request should pass through the “normal channel.”
“As to the question whether these documents may be forwarded to the ICC, that question should be answered by the national government,” she said.
Shed added: “If there is really a need to produce these case folders, then the PNP is ready to provide if directed (by the national leadership) to submit.”
Fajardo said the PNP has already cooperated with the Department of Justice in the investigation of 52 cases against abusive policemen.
“Aside from these 52, there were cases filed (against policemen) before the court. In some, policemen were convicted in these previous cases,” she said, adding that “this only proves that our judicial system is working. This is our stand, so let us allow the appropriate courts to hear these cases.”
In rejecting Manila’s appeal, the ICC Appeals Chamber said that its ruling did not dwell on jurisdiction since the issue of the effect of the Philippine government’s withdrawal from the Rome Statute was not properly raised before the Pre-Trial Chamber, theoretically giving the Philippines a small window of opportunity to use and argue in the future.
Solicitor General Menardo Guevarra said this is a “gaping hole” in the ICC ruling.
“The gaping hole in the ICC decision was its failure to rule on jurisdiction. The majority did not tackle it, and the minority, including the presiding judge took a strong position that the ICC had already lost jurisdiction over the Philippines when the ICC prosecutor sought to commence his investigation,” Guevarra said.
“This unresolved issue of jurisdiction will be a powerful argument for any person who may be investigated or charged by the ICC,” he added.
Asked if the Philippine government implicitly accepted the ICC’s jurisdiction when it earlier asked for a deferral of the probe, Guevarra said Manila never accepted the Court’s jurisdiction when it decided to withdraw from the Statute.
“No, we never accepted the Court’s jurisdiction, whether expressly or impliedly, as we were very much aware that our withdrawal from the ICC had taken effect in 2019. We made it pretty clear that our continued engagement with the ICC was borne out of comity only and a shared commitment to end impunity,” he said.
Remulla said the fact that two of three ICC Appeals Chamber judges dissented on the jurisdiction
“tells us that we are on the right track on the opinion of the sovereignty of the Philippines and that we should never cave in to people or organizations who want to interfere with the justice system in our country.”
Remulla reiterated the government’s position that the ICC no longer has jurisdiction over the country and said Manila will no longer engage with the court.
“Hindi na tayo makikipag-usap sa kanila. Hindi na natin sila kailangan sa ating bansa (We will no longer talk to them. We have no need for them in our country),” he said, adding he will ask Guevarra to cease talking with and disengage from the ICC.
In a statement, Remulla also said the ICC appeals chamber’s ruling was based on a “flawed interpretation” of its own jurisdiction.
“It fails to acknowledge that the Philippines has a functioning and capable legal system that is fully capable of investigating and prosecuting crimes within its jurisdiction,” he said.
“The principle of complementarity enshrined in the Rome Statute recognizes the primary jurisdiction of national courts to prosecute crimes and ensures that the ICC only intervenes when the national authorities are unable or unwilling to do so,” he also said.
Remulla said the ICC ruling not only disregarded the principle of complementarity but also undermined the sovereignty of the Philippines, a decision which, he added, is “deeply disappointing” and “regrettable.”
“We call upon the ICC to respect the principles of international law, particularly the principle of complementarity, which ensures that national authorities take precedence in handling criminal matters,” he said.
Remulla said the ruling will not affect the DOJ’s commitment to the pursuit of justice and accountability of all those who abused the drug crackdown even as it continues to defend the sovereignty and integrity of the country’s justice system.
“Our justice system stands ready to ensure a fair and impartial investigation, prosecution, and appropriate punishment for any proven crime,” he added.
Sarah Bafadhel, the British lawyer engaged by the Philippine government, said Manila may raise the issue on jurisdiction if the ICC issues warrants of arrest against those allegedly involved or responsible in the implementation of Duterte’s bloody crackdown against illegal drugs.
Bafadhel said this could be one of the legal remedies available to the Philippines.
“The main opportunity would be in the event that the prosecution did issue a warrant of arrest, name a specific individual and put forward a concrete case that the government, under Article 19 of the Rome Statute, has the right to intervene and ask for a decision or ruling on jurisdiction arguing and asserting that the Court does not have jurisdiction,” Bafadhel said.
WARRANTS
Senate President Juan Miguel Zubiri said the ICC should first coordinate with local courts if it wants to serve a warrant of arrest against any senator since the Senate will only honor an arrest order issued by Philippine courts.
Guevarra has said that with the ICC decision, it can now issue summonses or warrants against persons believed to be involved in the bloody drug crackdown.
In particular, Zubiri was referring to the possible issuance of an arrest warrant against Sen. Ronald dela Rosa, who was the chief architect of Duterte’s war on drugs when he was still the PNP chief.
Zubiri said the Senate peacefully turned over former Senators Antonio Trillanes IV and Leila de Lima when arrest warrants were issued by local courts.
He said without a warrant of arrest issued by a local court, the Senate is duty bound to “uphold” the legal rights of any senator.
“We have local jurisdiction, local courts (are) supposed (to be the) one that will release the warrant of arrest. Without a local warrant of arrest issued by the courts, then as far as I’m concerned, he (dela Rosa) is still a working member of the Senate and accorded, of course, that respect similar to Senator de Lima and Senator Trillanes,” Zubiri told CNN Philippines.
“Only when the warrant of arrest was issued, then we allowed or we agreed that they may be taken (under the court’s) custody. The process is the ICC should file with the local court, and the local courts will be the one issuing the warrants of arrest. That should be the process. I’m just stating a fact, a legal fact,” he added.
He said once a warrant of arrest is issued by a local court, the Senate will be bound to abide by the law.
Zubiri and Remulla warned Dela Rosa and former President Duterte against visit countries which are “friendly” to the ICC.
“Wag kayong pupunta sa lugar na maaaring makialam ang ICC (Do not go to countries where the ICC could intervene or can influence),” Remulla said.
Asked what these countries could be, Remulla said: “Siguro sa European countries (Maybe European countries).”
Remulla however said he has yet to talk to Duterte on the ICC case.
“Not lately. The last time I spoke to him was when the prosecutors had a meeting in Davao City,” he said.
But he said Duterte and Dela Rosa are Filipino citizens who need the protection of the government.
Dela Rosa said he is determined to seek another term in the Senate, saying that the ICC investigation may deliver more votes for him since according to him, a big number of Filipinos are angered with the international court’s interference on the drug war probe.
“Yes, yes. I’m ready… If the people still want to vote for me, I’m willing to serve. But if you’ll just base it on my desire, I’m still very strong, I’m still okay. I can still go for another six years. I’m still capable,” Dela Rosa said in a mix of Filipino and English in an interview with ANC’s Headstart.
“The support may even grow since many Filipinos are also angered by (ICC’s) interference with our sovereignty. So, its impact in my reelection bid may even be positive,” he added.
Dela Rosa reiterated that the intensified drug campaign was “to protect” the Filipino people from the ill-effects of drug abuse.
He said he does not mind whatever awaits him in the future due to his role in the fight against illegal drugs.
“If they want to persecute me, then go ahead. I have no problem with that as long as I did it not for my sake but for the country,” he added.
COOPERATE WITH ICC
Senate deputy minority leader Risa Hontiveros urged President Marcos and concerned government agencies to cooperate with the ICC “so that true justice is obtained.”
“This is an important first step in achieving justice for the victims, the widows, and the orphans of the war on drugs… The people are watching if he (Marcos) will put the country or his political alliance first. Sana ang Bagong Pilipinas nila ay Pilipinas na makatarungan sa lahat (I hope that their New Philippines [slogan] would also mean giving justice to everyone),” she said.
Rep. Arlene Brosas (PL, Gabriela) said the Marcos Jr. administration no longer has “alibis” to delay the process.
“The probe must continue, and mothers who are willing to recount the reign of terror under Duterte must be allowed to share their stories on the bloody war on drugs and Duterte’s death squads,” said Brosas, a member of the Makabayan bloc.
“Clearly, the ridiculous assertions that the ICC has no jurisdiction over the country, and that the local justice system is allegedly working simply do not hold water as far as the ICC judges are concerned. For three times in a row, the chamber quashed attempts by the Marcos Jr. administration to shield Duterte from investigation and prosecution, decisively exposing the hollowness of the excuses raised,” she added.
The militant lawmaker said she was hoping that the families of the victims of extrajudicial killings “will move closer to the attainment of truth and justice, inasmuch as Duterte will be pushed closer to the ICC detention center and pay for his crimes against humanity.”
Rep. France Castro (PL, ACT), another member of the Makabayan bloc, urged the Marcos administration to just cooperate with the ICC’s investigation and ensure the protection and safety of witnesses and victims who will be participating in the proceedings.
“It is crucial that the government does not hinder the pursuit of justice. The truth must be revealed, and those responsible for these heinous crimes must be held accountable.”
Castro said the ICC’s commitment to pursue justice and accountability for the victims of extrajudicial killings is a significant step towards upholding human rights in the country.
“The ICC’s decision to continue its investigation sends a strong message that no one is above the law, and that the victims and their families deserve justice,” she said. “We have long been advocating for accountability and an end to the culture of impunity in our country. The ICC’s decision gives hope to the Filipino people, especially those who have been directly affected by the drug war.”
CBCP – Episcopal Commission on Public Affairs Executive Secretary Fr. Jerome Secillano the Catholic Bishops Conference of the Philippines (CBCP) is looking forward to a fruitful ICC investigation.
“We hope that their investigation will lead us to the truth and punishment for the guilty,” said Secillano, adding: “Whoever is responsible for this purge should be made accountable, (while) taking into account due process as well as other rights afforded by law to the accused.”
“The drug war has led to some of the most violent crackdowns in the country. The cost of lives should never be ignored. It’s time that the ICC would dig thoroughly into this mess,” he added.
In a statement, the Commission on Human Rights (CHR) yesterday said: “From the lens of justice, CHR acknowledges the continuation of the investigation as part of due process meant to uphold the rights of victims, as well as the accused, through a fair and impartial procedure with the end view of exacting truth and, later on, accountability from the perpetrators if and when guilt is established.”
The CHR encouraged the Marcos administration “to view this decision as an opportunity to give better meaning to President Ferdinand Marcos Jr’s commitment at the onset of his presidency to ensure a ‘high-level of accountability’ for human rights violations during his term.”
“CHR is willing, ready, and able to assist the government so it may better comply with its obligations to respect, protect, and fulfill the human rights of all, especially the vulnerable and aggrieved,” it added.
It said the ICC investigation is separate from the CHR investigation on extrajudicial killings and other human rights violations committed during the previous administration’s war on drugs.
The CHR said it has already submitted the result of its investigation to the government through its 2022 CHR Report on Investigated Killings for “consideration and action.”
“In this view, CHR supports the reforms pushed by this administration. We hope these efforts ultimately yield justice for the victims and better respect for the human rights and dignity for all,” it added.
HELP US
Remulla reiterated his appeal to families and victims of the drug war to help the DOJ in its investigation by coming out in the open and testifying.
“We encourage individuals who have evidence or witnesses related to the drug war to contact our dedicated task force or reach out to our local offices. The DOJ will treat all information with the utmost confidentiality and will take appropriate actions based on the evidence provided,” Remulla said.
“The DOJ will ensure a fair and impartial investigation into any allegations of human rights violations or abuses. Our goal is to provide justice and accountability while upholding the rule of law,” he added.
Fajardo urged those who are pursuing the case before the ICC to bring the issue before the DOJ instead.
“It would be best to cooperate with the ongoing investigation of the DOJ if they have evidence. I think the DOJ is the proper office to take cognizance of these cases,” said Fajardo.
Government records show that more than 6,000 drug suspects have been killed in police operations from June 2016 until November 2021. But local and international human rights groups have claimed the actual death toll stands at around 12,000 to 30,000. – With Raymond Africa, Wendell Vigilia and Gerard Naval
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