BUMPS (17)

HALAW ang mga sumusunod sa aking pangalawang aklat “BUMPS: Fifty Years of Dictatorship and Democracy in the Philippines (1972-2022).” Bahagi ng pangsampung tsapter kung saan tinalakay ko ang usapin ng giyera kontra droga ni Gongdi. Kahit hindi na kasapi ang Filipinas sa Rome Statute, may pananagutan ang Filipinas.

JUDICIAL RESTRAINT. The Supreme Court decision stressed judicial restraint in the treatment of the unilateral withdrawal of the Philippines from the Rome Statute. But it ensured that the government would have to adhere to the provisions of the Rome Statute, when it was still a member-state. In brief, the withdrawal initiated solely by Duterte in what appeared to be a fit of frenzy does not mean outright loss of obligations to the ICC. In what could be considered an iron-clad, black and white part of the Supreme Court decision, the following has to be cited:

“Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member. Article 127(2) provides: ‘A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was as a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.’

“A state party withdrawing from the Rome Statute must still comply with this provision. Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate.

“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.

“Further, as petitioners in G.R. No. 239483 underscored: [U]nder this reverse complementarity provision in [Republic Act No. 9851, the Preliminary Examination opened by the [International Criminal Court] on the President’s drug war is not exactly haram (to borrow a word used in Islam to mean any act forbidden by the Divine). Assuming such a [Preliminary Examination] proceeds . . . when Art. 18 (3) of the Rome Statute comes into play, [Republic Ad No. 9851 may be invoked as basis by Philippine authorities to defer instead to the [International Criminal Court] in respect of any investigation on the same situation.

“Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated here. The Philippines remained covered and bound by the Rome Statute until March 17, 2019.”

Hence, the Supreme Court dismissed the claim that the unilateral withdrawal of Philippine membership from the Rome Statute “violated their right to be provided with ample remedies for the protection of their right to life and security.” This is baseless, according to the High Court. “This fear of imagined diminution of legal remedies must be assuaged. The Constitution, which embodies our fundamental rights, was in no way abrogated by the withdrawal. A litany of statutes that protect our rights remain in place and enforceable,” it said.

In the first book, this author concludes this is a matter that Duterte and cohorts have had a hard time to understand. Even their purported lawyers do not understand this issue either. They have kept on insisting that the withdrawal of the Philippines from the Rome Statute has extinguished their liability or responsibility from the Rome Statute. Hence, they have insisted the ICC has no power to run after them. This simplistic view is false, by all means.

The Supreme Court has laid down the consequences if ever a state like the Philippines refuses to cooperate with the ICC in its probes.The operative phrase is “full cooperation.” The ICC has the power to employ ways to ensure the personal safety of victims. This is a matter that Duterte, cohorts and lawyers have not seen or understood.

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FORMAL PROBE
WHEN the ICC Pretrial Chamber rejected on Jan. 24, 2023 the appeal to delay or stop the ICC formal investigation of the crimes against humanity charges against Duterte and his ilk, the two chambers of Congress separately called for a similar rejection of the formal probe. Three weeks after the ICC rejection of the appeal, an initiative started at the House of Representatives when Pampanga Rep. Gloria Macapagal Arroyo, a former president, led a group of 19 lawmakers in the Feb. 16 resolution asking the chamber to support Rodrigo Duterte, who was facing an ICC probe over his bloody drug war.

Her resolution dated Feb. 16 said: “Be it resolved, as it is hereby resolved, that the House of Representatives declares unequivocal defense of former president Rodrigo Roa Duterte, the 16th president of the Republic of the Philippines, in any investigation and/or prosecution by the ICC.”

Not to be outdone, Sen. Jinggoy Estrada submitted on Feb. 23, 2023 the Senate Resolution 492, expressing same objections, thoughts, and resolve as the House resolution’s. The two resolutions said the ICC “lacked” jurisdiction over the Philippines, citing the 2019 withdrawal from the Rome Statute, a move initiated unilaterally by Duterte without consultations with lawmakers and other political leaders. The two resolutions neither gained support nor traction in the two congressional chambers. They were not adopted and died naturally.

These were not all. Duterte’s political allies launched their own media campaign to make it appear that Duterte and his cohorts did not have responsibility because the Philippines has withdrawn its membership in the Rome Statute. Ronaldo dela Rosa, Francis Tolentino, Christopher Lawrence Go, and Robin Padilla issued separate statements containing simplistic statements that since the Philippines has withdrawn unilaterally from the Rome Statute, Duterte and cohorts are no longer responsible on those EJKs.

They obviously did not read the provisions of the Rome Statute. Neither have they read the Supreme Court decision. On the contrary, they are still responsible for Duterte’s state-sponsored terrorism. The following pertinent provision of the Rome Statute makes sense:

Article 127 Withdrawal 1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. (Itutuloy)