SOMEONE ELSE’S WINDOWS: Justice Secretary Remulla misled the public on ICC’s mandate

MALAYBALAY CITY (MindaNews / 23 March) – The statement of Justice Secretary Jesus Crispin Remulla on Monday (March 20) telling the International Criminal Court (ICC) or other critics to file a case against former President Rodrigo Duterte before the Department of Justice was misleading.

Remulla issued the statement in reaction to the decision of the ICC to resume investigations into the “drug war” killings in the Philippines before members of the Foreign Correspondents Association of the Philippines.

“File a complaint. Why should I take an initiative of investigating if there is no complaint? Give me a complaint,” news reports quoted Remulla as saying.

The secretary also reiterated the Marcos government’s position not to rejoin the ICC and that ICC should not interfere in the justice system of the Philippines, saying the country’s justice system was working.

He cited that some drug war cases have been resolved, although he also admitted that “many cases do not prosper because many families do not want to talk anymore.”

“The families don’t want to talk to the NBI. That’s still our problem now. We have to get them to cooperate with us so we have a complaining party,” he added.

Background

On 17 March 2018, then-President Rodrigo Duterte formally notified the United Nations secretary-general that the Philippines was withdrawing from the Rome Statute. The notification sent to the UN secretary-general was required under Article 127-1 of the statute.

Duterte was reacting to the announcement a month earlier from then-ICC prosecutor Fatou Bensouda to open a preliminary examination over the thousands of alleged extrajudicial killings linked to the “war on drugs.”

In May 2021, following her analysis of these crimes, Bensouda requested the court’s authorization to open an investigation into the situation in the Philippines. The ICC pre-trial chamber authorized the opening of the investigation in September 2021.

Why Remulla’s statement is misleading

It is not within the ICC’s mandate to file complaints before any domestic court or agency tasked with prosecution and/or investigation. The Preamble of the Rome Statute, the treaty that created the ICC, provides that the court “shall be complementary to national criminal jurisdictions.”

The ICC may only step in if, in its view and based on evidence available to it, domestic processes have failed to address crimes under its jurisdiction namely, the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

Article 7 of the Statute defines crimes against humanity as “acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” These include murder, torture and enforced disappearance of persons. Human rights groups have contended that the thousands of extrajudicial killings allegedly by law enforcers and “vigilantes” during anti-illegal drugs operations were committed in furtherance of a State policy and can thus be considered crimes against humanity.

As to Remulla’s statement that the impending ICC investigation would be an interference in the justice system of the Philippines, the Rome Statute provides that a 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.” (Article 127-2)

Moreover, Article 127-1 states: “… The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.”

ICC jurisdiction over crimes committed in the Philippines started on 1 November 2011, the date the Statute went into effect in the country, until March 16, 2019, a year after the formal notice of withdrawal was received by the UN.

(MindaViews is the opinion section of MindaNews. H. Marcos C. Mordeno can be reached at hmcmordeno@gmail.com.)