THE INTERNATIONAL Criminal Court has allowed its prosecutor to resume its investigation into the drug war killings in the Philippines.
Asked to comment, President Ferdinand R. Marcos, Jr. said he continues to doubt the jurisdiction of the ICC to investigate crimes against humanity allegedly committed during the previous administration.
“Until those questions of jurisdiction and the effects on the sovereignty of the republic are sufficiently answered, I cannot cooperate with them,” Marcos said in an interview.
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Chief Justice Alexander Gesmundo discussed the concept of jurisdiction in a decision penned in November 2020.
“Jurisdiction” is derived from the Latin words, “juris” and “dico.” Its literal meaning is, “I speak by the law.”
In a broad sense, it is “the authority of law to act officially in a particular matter in hand.” In a narrow sense, it is “the power and authority of a court or tribunal to hear, try, and decide a case.”
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Simply stated, jurisdiction is the power to hear and decide a case. That power is conferred by law. A decision issued without jurisdiction is void.
Does the ICC have the power to allow its prosecutor to investigate crimes committed in the Philippines and eventually hear and decide criminal cases filed against individuals suspected to have committed those crimes?
If so, what law grants it the power to hear and decide those cases?
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Article 7, Section 21 of the Constitution provides that a treaty becomes effective when it is concurred in by at least two-thirds of all the members of the Senate.
The Senate ratification of a treaty makes it valid and binding in the Philippines as though it were a law passed by Congress. International law then becomes domestic law by transformation.
In August 2011, the Senate of the Philippines, then led by Senate President Juan Ponce Enrile, concurred in the ratification of the treaty (the Rome Statute) creating the ICC, and called it “our contribution to an effective international criminal justice system…”
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Jurisdiction over criminal acts is traditionally vested in domestic courts. However, nations themselves sometimes relinquish aspects of their own sovereignty by signing agreements that benefit the family of nations.
Such is the theory of “auto-limitation,” or the nations’ surrender of their state power in exchange for greater benefits derived from a convention or treaty.
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So, does the ICC have jurisdiction over crimes against humanity alleged to have been committed in the war on drugs?
It does. In its decision in Pangilinan vs. Cayetano, which tackled petitions assailing the validity of the President’s withdrawal from the Rome Statute, the Philippine Supreme Court said clearly:
“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.”
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The ICC was never intended to replace local judicial systems. First touch is given to our courts. The ICC can only assume jurisdiction when local authorities are unwilling or unable to act.
Republic Act 9851, the law penalizing genocide and other crimes against humanity, has been in Philippine statute books since it was enacted in 2009 – antedating the Senate’s concurrence to the Rome Statute.
The Philippine government has yet to show that it is investigating or prosecuting those offenses in the context of the war on drugs.
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While institutions are in place, top government personalities have of late been expressing “unequivocal support” to former President Rodrigo Duterte who is admittedly the principal respondent in the ICC investigation.
The Rome statute provides that unwillingness to prosecute may be deduced when national decisions are made for the purpose of shielding the person concerned from criminal responsibility./PN
