HOWIE SEE IT: DDS, EJK and ICC – Sweet justice in sight

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By Atty. Howie Calleja

This past week, the Pre-Trial Chamber I of the International Criminal Court (ICC) officially announced that it had granted former Prosecutor Fatou Bensouda’s request to open an investigation into crimes committed in the Philippines from November 1, 2011, to March 16, 2019, in the context of the “War On Drugs” campaign. While this is a shock to none, perhaps the biggest statement made by the Chamber was their announcement that a total of 204 victims had made representations before the Chamber since the time former Prosecutor Bensouda made her request for judicial authorization in May of this year. This news was coupled with a statement by the Chamber in defense of human rights that stated that the “War On Drugs campaign cannot be seen as a legitimate law enforcement operation,” reiterating what all legal minds know – due process is an unflappable and non-negotiable principle of our legal system, and fundamental to the exercise of all human rights.

But it seems that a number of legal minds, indeed those who are in charge of running the country, do not know this: President Duterte, Presidential Spokesperson Roque, Chief Presidential Legal Counsel Panelo, and former Senate President Ponce Enrile are, once again, erring on the side of fascism. Despite the fact that they are all products of some of the top law schools in the nation, they have repeated a number of demonstrably false claims regarding the jurisdiction of the ICC and the legality of the War On Drugs. While I will, of course, reiterate the fundamental importance of human rights to our society, indeed our international community, I will first list their claims and rebut them in order of significance (or silliness, if the shoe fits).

CLAIM 1: “The ICC does not have jurisdiction because the Philippines withdrew from the Rome Statute in March 2018.” – FALSE.

Pursuant to Article 127 of the Rome Statute, despite a withdrawal, a State is not discharged of its obligations while it was Party to the Statute. Neither shall the withdrawal affect its cooperation with the tribunal in any investigation into the failure to uphold obligations while it was a State Party, up until one year after the notice of withdrawal was given. Essentially: the Philippines’ obligations to the ICC did not end on March 17, 2018, when the notification of withdrawal was given. The obligations to the Rome Statute only ended on March 17, 2019, when the withdrawal became effective. Even then, the end of the State’s duty to the Rome Statute did not apply retroactively; rather, the State may still answer to any crimes committed during the time it was Party to the Statute. Because the Philippines deposited its instrument of ratification to the Rome Statute on August 30, 2011, the Statute entered into force on November 1, 2011; therefore from November 1, 2011, up until March 16, 2019, any and all violations of the Rome Statute are subject to investigation by the ICC.

CLAIM 2: “The ICC has no jurisdiction over the Philippines because the Rome Statute (which created the court) never took effect in the country because it was never published on the Official Gazette”-FALSE.

These words, from the mouth of Chief Legal Counsel Panelo, seem to reference Article 2 of the Civil Code which states that “Laws shall take effect after 15 days following the completion of their publication in the Official Gazette, unless it is otherwise provided.” However, this is a woeful misapplication of the provision, as: 1) at the time this Code was written, it referred only to legislative acts, executive orders, decisions of the Court, and the like that were written within the Philippines, as per Section 1 of Commonwealth Act 638 (the Rome Statute is an international instrument); and 2) Every first-year law student knows that both Executive Order 200 and the case of Tañada and Tuvera have reiterated that publication in the Official Gazette is not necessary for a law to be in effectivity. It is enough that it is in a newspaper of general circulation. There is no doubt that the Rome Statute has been published online in full, and in portions by many a local newspaper, especially since the commencement of the ICC’s line of questioning on the War on Drugs.

CLAIM 3: “The Pre-Trial Chamber should have denied the request because it is a violation of the principle of complementarity” -FALSE

It is the job of the Pre-Trial Chamber, from the moment the Prosecutor files for judicial authorization for an investigation to determine if there is a violation of the principle of complementarity. Complementarity refers to the determination if the Philippines is willing and able to investigate by itself. Simply, it places a primary obligation on the State to investigate the crimes against humanity. This principle has, thus, become the catalyst for the narrative being pushed that “this is a domestic issue, not an international one”. However, this should not be confused with the concept of “exhaustion of legal remedies”. This doctrine imposing on a plaintiff an obligation to first try their hand at all possible remedies before resorting to the “final” step (In this case the ICC). To equate the two would simply leave international courts at a crossroads, they would not be able to exercise any jurisdiction at all because a State would fail or refuse to cooperate – how then would we have any respect for international law? The ICC’s respect of state sovereignty is thus balanced with the idea of the primacy of human rights, the latter of which can never be forsaken just because a State refuses to be looked into.

CLAIM 4: “We will not cooperate, so the investigation should not be pursued” – FALSE

Even statements by the government that they will not pursue any form of cooperation should not stop the investigation from proceeding. A few months ago, Roque liked to cite the ICC’s investigation of Afghanistan, stating that the Pre-Trial Chamber initially denied authorization for an investigation into violations of the Rome Statute, citing the lack of government cooperation which would doom the probe to failure. However, the ICC’s appeals chamber reversed the PTC, prompting an ongoing Afghanistan investigation. While it is true that the ICC will rely on the cooperation of Philippine authorities for an arrest to be made (If such warrants are given), it is not true that cooperation is absolutely necessary for an investigation to take place. Though the logistics of the ICC’s investigation, especially in gathering data and evidence, remain uncertain – the case of Afghanistan shows that it is not entirely unprecedented.

This narrative seems to be of the opinion that be that our domestic courts can hold the President accountable if there are, indeed, crimes he must answer to. Malacañang, after all, did announce that our courts continue to function and, thus, anyone may bring a charge against the President. These statements failed to recognize the limitations of our domestic courts; for one, a sitting President cannot be prosecuted. This is one of the many reasons why we rely on impartial, third-party observers like those sitting on the ICC; their power is not divine, and they are not omniscient, but they have the ability to gather evidence and give legal recommendations where our domestic courts cannot, or maybe where an officer of the court may be afraid to. Additionally, why would Malacañang suggest that the domestic courts are an option to bring a case against the President when the body count as a result of the extrajudicial killings runs in the tens of thousands? Mixed with the fact that 2020 was the worst year on record for murders in the legal community, there has been no desire to empower lawyers to bring cases forward – every day is a risk we must take, to pursue justice.

CLAIM 5: “The ICC does not have divine right to judge” -RIDICULOUS

Contrary to this claim, it is not divine law that gave the ICC the authority to investigate the killings. Rather, it was legitimately ratified by the previous President and his legislative branch, all given authority by the people through the democratic process. Though President Duterte had every right to withdraw from the Statute, it cannot be said that the ICC never had authority when it is clearly written in the treaty that created the tribunal.

CLAIM 6: “This attack on our President and investigation into our country is a violation of our sovereignty”-DEPLORABLE

A variation of these words has been repeated since October 2016, by Duterte, Go, Roque, and their band of merry men – from the moment when former Prosecutor Bensouda first issued a statement of concern about the reported extra-judicial killings in the country. Not only are they being repeated until today, but now former Senate President Ponce Enrile has joined the call to say this is an attack not just on our sovereignty, but the “authority and nobility” of our President and, apparently, this extends to all Filipino people. How shameful that this is the messaging we are giving to our allies abroad – that we are above the jurisdiction of international courts and our international obligations mean nothing. It seems that the administration is more appalled by the concept of an international body invoking human rights for Filipino citizens than by the thousands of lives lost without their day in court. Even to describe these issues as merely “internal affairs” is baffling. The WOD has killed tens of thousands of people – who are not proven criminals – and there is still an attempt to brush it off as a few isolated cases. This is not merely a domestic policy, this is a human rights crisis in a democratic nation that has a rippling effect on the entirety of the international community; with a State ignoring its obligations to its own people, what hope do we have in times of conflict? Will they still abide by international limits of warfare? How can we ask other countries to uphold their international obligations to us?

To undermine the ICC is truly a dangerous game. By stating that international courts have no business in internal affairs is eerily similar to China’s rallying call during the West Philippine Sea ruling – one that obviously ended up in our favor. How interesting that we are picking and choosing when international courts may intervene, as issues of territory are to our benefit but matters of life or death are apparently an insult.

For all the time spent on public rejection of the ICC’s investigation based on sovereignty and jurisdiction, there has been no denial, or time spent mourning the lives lost. Though PDEA reports upwards of 6,000 deaths in connection with the WOD policy, multiple international human rights groups estimate that as many as 27,000 Filipinos have been victims of extra-judicial killings. Did we forget that due process is a cornerstone of a civil, and just, society? Or will we continue to allow the powerful to live above the rule of law? Doesn’t rejecting this report’s findings purely on jurisdiction, rather than its merits, only prove that there is an absolute refusal to be criticized?

With the investigation proceedings beginning, we can only hope that the ICC will continue to do the good work in shining the light on issues so far in the dark. Now that we are finally in a part of the proceedings where summons and arrest orders may be issued for these blatant violations, it is this author’s hope that the tens and thousands of victims of the War On Drugs finally receive a semblance of justice.