MANILA, Philippines — While maintaining that President Marcos’ foreign policy decisions should be followed, Vice President Sara Duterte said she would urge the Department of Justice (DOJ) not to cooperate in the International Criminal Court (ICC)’s investigation of the bloody war on drugs during the administration of her father.
Asked about Marcos’ softened tone regarding the issue of cooperation with the ICC, Duterte said, “We all should respect the position of the President, being the chief architect of foreign policy. His position should be the position of all.”
But she stressed her office would continue to assert its position against cooperating with the ICC’s investigation on her father’s drug war.
“But we will continue to reach out to DOJ regarding our position on this matter… and we will lay down the legal basis of our position,” she told reporters yesterday.
Last week, Marcos said proposals for the country to rejoin the ICC are “under study,” raising the possibility of ICC prosecutors being allowed to investigate and possibly prosecute Duterte and his officials for crimes against humanity committed in the conduct of his war on drugs.
Marcos made the statement after members of the House of Representatives, whose relations with the Vice President and her father appear to have soured, filed resolutions urging the administration “to extend their full cooperation to the ICC Prosecutor with respect to its investigation of any alleged crime within the jurisdiction of the ICC.”
After years of delay, the ICC decided earlier this year to resume its inquiry into the Philippines’ war on drugs.
The decision drew pushback from several lawmakers allied with former president Duterte, as well as from Marcos and members of his Cabinet, including Justice Secretary Jesus Crispin Remulla.
Over 6,000 suspected drug offenders have been killed in Duterte’s drug war based on government data. However, human rights groups said the number of fatalities could be several times higher.
For lawyer and former presidential spokesman Harry Roque, ICC’s absence of judicial cognizance over the drug war case precludes it from investigating former president Duterte and his Vice President-daughter.
Roque, who is included in the court’s list of counsels, also cautioned President Marcos that his political advisers were using the ICC issue to foment division between the Marcos administration and the Duterte family.
The former presidential spokesman opined that the war on drugs case officially came under the ICC’s cognizance only after the Pre-Trial Chamber authorized a preliminary investigation in 2022.
“Regardless of our membership status, the Court cannot invoke jurisdiction since it was only in 2022 that the former prosecutor was allowed to proceed with the preliminary investigation. It was two years after the Philippines officially left the ICC,” Roque explained.
“What the former prosecutor conducted before 2022 was a preliminary examination, which differs from an authorized preliminary investigation. She acted in her own capacity,” he said, apparently referring to Fatou Bensouda. “The ICC did not have direct participation in this informal process.”
Prospective, not retroactive
Roque added the jurisdiction of the ICC is applied prospectively and not retroactively. The ICC’s prospective jurisdiction over the Philippines, he said, took effect when the country ratified the Rome Statute of the ICC in 2011.
It was rescinded in 2019, one year after the country deposited the notice of withdrawal to the United Nations Secretary-General as stipulated under Article 127.
“Without a retroactive effect, the court cannot open past cases involving our former presidents because it will violate their right to due process,” he said.
“Thus, the ICC cannot subject FPRRD to a probe because the Philippines withdrew from the Statute long before the Court authorized a preliminary investigation,” he said, referring to the former president by his initials.
He expressed belief that given the court’s prospective jurisdiction, it can only investigate a sitting chief executive or current leaders suspected of committing grave crimes against the international community.
Roque said he agreed with President Marcos that the Philippine government and the court must settle first the fundamental issue of Philippine sovereignty and judicial independence relative to the court’s jurisdictional reach.
“I am worried that PBBM might be getting the wrong advice from people out to harass and muzzle FPRRD and VP Sara. I appeal to President to ignore those sowing discord in the UniTeam and dissension between the Marcos and Duterte families,” he said.
“After the botched impeachment moves in the Lower House on the Vice President, some ambitious politicos might capitalize on the ICC probe as a way to humiliate Inday Sara or worse, remove her from office,” he added.
Sen. Ronald dela Rosa, for his part, said rejoining the ICC would be unconstitutional if done without Senate concurrence.
Dela Rosa is one of 11 former officials being investigated by the ICC for possible crimes against humanity.
Despite Marcos’ hinting at allowing the country to rejoin the ICC, Dela Rosa said he is counting on the Chief Executive’s previous statement that he is “very firm not to allow the ICC to interfere in our justice system, that’s a very fundamental issue. No. 1 is sovereignty and no. 2 is jurisdiction.”
“If you want to rejoin, that will still have to go through the process before we enter into any agreement,” Dela Rosa said in an interview over ANC.
“After the President’s ratification, it has to be concurred by the Senate by a two-thirds vote. So that’s the process. Back to zero, back to square one,” he added.
The senator said failure to follow such process would be unconstitutional.
No skeletons in closet
But for Manila Rep. Bienvenido Abante, allowing the ICC to investigate on Philippine soil the drug war killings during the Duterte administration will send a clear message to the world that in the issue of human rights the government has no skeletons in the closet.
“By allowing ICC to come, it’s telling the world that we have nothing to hide here,” Abante, who also chairs the House committee on human rights, said.
Abante has authored a resolution allowing the ICC to investigate former president Duterte and some of his officials for possible case of crime against humanity in the conduct of his war on drugs.
The gesture, he added, will show that the current administration is “very transparent with its processes” and its justice system is functioning.
“We just want to show to the whole world and to the ICC that our justice system is running smoothly,” he pointed out.
But he stressed the ICC should not be allowed to indict or prosecute the former president and his officials in the country.
“They can come in and investigate and even ask questions to the family of the victims but they cannot prosecute here,” he said.
Rep. Edcel Lagman of Albay, a human rights lawyer and a vocal critic of Duterte, maintained that letting the ICC in is not a surrender of sovereignty. “If we believe in the rule of law, then we must let ICC come in,” Lagman said.
Abante and Ramon Gutierrez (1-Rider party-list) filed House Resolution 1477 on the ICC entry during plenary on Nov. 21, while Lagman filed his – HR 1482 – on the same day.
Marcos said the ICC issue is “under study” with Speaker Martin Romualdez making it clear that lawmakers would be guided by whatever the Palace would decide on the matter.
This happened amid a word war between House leaders and Duterte, who called the lower legislative chamber a “rotten institution” after it rejected his daughter’s request for P650 million in confidential funds for the OVP and the Department of Education, which she heads. – Delon Porcalla, Cecille Suerte Felipe
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