Superpower ICC and PH domestic law: No exemption
The Rome Statute is a treaty that conceived and gave birth to the International Criminal Court (ICC). It empowers the ICC to function, at the very least, as a court of last resort under the prescribed conditions.
State parties to the Rome Statute of the ICC, like the Philippines that signed and ratified the Rome Statute on 28 December 2000 and 30 August 2011, respectively, may subject to the functions and powers of the ICC as provided in the Rome Statute.
1. the nonintervention of each State Party in an armed conflict and the internal affairs of any State;
2. the complementarity principle
What does the complementarity principle mean? It means that the ICC shall exercise jurisdiction only when the criminal justice system of a State Party is no longer effective to function itself.
(In) arguendo, while the Philippine courts are still functioning yet President Duterte as alleged either an instigator or the doer of the crimes considered to be of international concern (crimes against humanity, e.g., extrajudicial killings) is still left unpunished or apprehended in the course of his term as president, shall the ICC have the jurisdiction over President Duterte?
ICC conflict with PH domestic law: Unresolved
The ICC investigates criminals or persons who allegedly committed crimes under its jurisdictional definition without exemption—be it a head of state or a president or a government official. However, the principle of complementarity shall be upheld.
The Philippines as a State Party to the Rome Statute of the ICC is, no doubt, expected to follow the provisions provided in the Rome Statute. With that premise, shall the Philippines abandon its domestic law on presidential immunity? The answer is a challenge. It is a challenge to all State Parties with a domestic law on immunity that is either shortsighted by the sovereign state upon ratification or it is a seemingly mindful disrespect of the framers of the Rome Statute to that particular domestic law, outright—an unresolved issue—asserted by those shortsighted few.
The ICC was established essentially for perpetrators of the crimes shall not get away unpunished. Thus, even President Duterte will no longer be the president, the ICC still can prosecute him to face the full brunt of the law. This is what President Duterte maybe afraid of.
This is what President Duterte keeping to continue playing politics. This is what Duterte administration seemingly playing as if “unfazed” yet is shaken by each tick of the clock.
Duterte to leave the ICC to evade prosecution is farce
The wordings of the Rome Statute of the ICC assert that even if a State Party withdraws its ratification to the Rome Statute does not stop the ICC from exercising its functions and powers that have been initiated.
Thus, President Duterte’s intent to withdraw the Philippines from the Rome Statute (now that the ICC prosecution has been expressing its intent to look into his alleged commission of crimes) is an outright farce—a political comedy with shades of intention. What intentions maybe President Duterte is portraying?
Leveraging Sun Tzu’s Art of War, President Duterte may portray two faces: a great pretender and the odd wise.
Although Duterte is seemingly unperturbed by the ICC’s declaration to look into his alleged committed crimes, he viciously attacks the ICC prosecution by underestimating the capability of the ICC.
The Presidential Spokesperson Atty. Harry Roque, known for being a human rights advocate, categorically expressed that ICC will be violating the complementarity principle. A sweeping statement to consider being unmindful of conditions set for on how the ICC exercises jurisdiction despite the complementarity principle vis-à-vis the operational Philippine courts of justice.
Duterte administration now playing the victim card asserting that President Duterte has been politicized. Of course, ICC and the international communities won’t buy President Duterte’s resounding alibi.
“Superpower” ICC versus contentions
The contention that ICC may have a superpower over a State Party, a sovereign itself, pushes major superpower countries like Russia, China, and the United States away from the claw of the Rome Statute. These countries are obviously standing by their principles of independence and self-regulatory very mindful of future setbacks.
If the ICC finds jurisdiction of the crimes allegedly committed by President Duterte, and the contention against the validity of the assertion of jurisdiction becomes impossible, then the ICC will likely issue a warrant of arrest against the sitting President Rodrigo Roa Duterte. Then, here comes the problem the ICC may create.
While the Philippines has its domestic law on presidential immunity, that immunity doesn’t work in the eyes of the ICC. Look at the case of Sudanese President Omar al Bashir.
President Duterte asserts that the ICC has no jurisdiction over him. As contentious as that statement by no less than a president, the ICC may face challenges. But President Duterte may have no choice except to go extralegal or to remain defiant. Moreover, President Duterte has a one-way ticket for exit should the ICC succeed to find jurisdiction: death—nobody wants that for him, especially that he’s doing soooo good for the country.
For Duterte to leave the ICC, why not just copy instead the strategy of the Kenyatta case? Uhuru Kenyatta of Kenya has truly everything President Duterte to keep going. ▲
Blogger since 2011, fascinated by law, politics, statecraft, spirituality, and ontological mathematics is a former editor-in-chief of an official student publication in a state university, textbook editor in a book publishing company, and citizen journalist for a global online media outfit. Regel Javines also spent a short stint in the The Manila Times as a deskman for local and foreign business news. [See all his articles…]