WHY IS THERE a need for an international criminal court when we have our own system that brings criminals to justice?
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The prospect of a trial against Rodrigo Duterte, Bato dela Rosa, et al, at the International Criminal Court (ICC) looms large with ICC Prosecutor Karim AA Khan’s recent motion to lift the suspension on his investigation of crimes against humanity that were committed in the government’s war on drugs.
The investigation was suspended in November last year because the Philippine government claimed that we have a working court system capable of investigating and prosecuting those involved in the commission of those crimes.
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Secretary Martin Andanar invokes Philippine sovereignty, claiming that veering away from this principle “will only reveal the politicization that has infiltrated the ICC’s ranks.”
“Surely, the CHR (Commission on Human Rights) knows the implications of such intervention on State sovereignty, and we expect the ICC, especially Mr. Khan, to know that as well,” he said.
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Does the ICC investigation diminish Philippine sovereignty?
Did we not think of this when we signed the Rome Statute that created the ICC?
In 1996 President Fidel Ramos got us actively involved in the creation of the ICC by nominating members of the drafting committee.
It was President Joseph Estrada who signed the Rome Statute in December 2000.
In August 2011, an almost unanimous Senate ratified the statute. The only negative vote was cast by Juan Ponce Enrile.
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It was the late Senator Miriam Defensor-Santiago who sponsored the Senate resolution ratifying the Rome Statute. She called it the most important institutional innovation since the founding of the United Nations.
The senator said that if a state becomes a party to the Rome Statute, any past leader could be investigated and prosecuted if he commits a core crime, particularly if he is the head of state, member of the national legislature, or government official at a similarly high level.
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Clearly, the executive and legislative branches of government were united in pushing for the Philippines’ participation in the creation of an institution designed to address impunity in the commission of crimes of such gravity that they are called “crimes against humanity,” etc.
It was only when the Philippines was poised to get tested under that system that Duterte and his allies invoked sovereignty as a defense. Sovereignty was set up as a propaganda backdrop in the Philippines’ withdrawal from the ICC in 2018.
Even then, the Supreme Court has already decided that until the withdrawal took effect on March 17, 2019, “the Philippines was committed to meet its obligations under the Rome Statute.” (Pangilinan v. Cayetano, March 16, 2021)
This means that criminal acts committed up to March 2019 may still be prosecuted before the ICC.
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Half a year has passed since the ICC Prosecutor acceded to the request for suspension. Has government demonstrated that we have a working system that can “mirror” the kind of investigation and prosecution that the ICC is supposed to undertake.
The Justice department can dribble the ball only for so long. Even in basketball there is a time limit for ball possession.
The ICC prosecutor saw it for what it was. The DOJ’s desk review and submission of lists of cases supposedly demonstrating a functioning criminal justice system showed what, in fact, actually ails it – this practice of laying the blame on lower ranked police officials while drawing the spotlight away from the leaders who are ultimately responsible.
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Miriam’s words were prophetic: “If the state is already investigating or prosecuting its own head of state or similar official, the Court will not intervene. But if the state is unwilling or unable to prosecute, then the Court will try the case in The Hague.”/PN
