COMMENTARY: Male trado, bene ad judicium teneo: Legal and Moral Thoughts on the Duterte Arrest and Surrender by the Philippine Government to the International Criminal Court (4th of 5 parts)

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Fourth of five parts

The Issue of RP-ICC Cooperation and RS Application

            It would seem that this is no longer an issue, given the afore-quoted DOJ Certification indicating RP cooperation with the ICC in the Duterte arrest and surrender, and for this, avowed “compliance” with the RS, including citation of its Part 9 and Articles 59(4) and (7). But there are also President Marcos Jr.’s and Justice Secretary Remulla’s relevant statements thereafter that the RP had no obligation to cooperate with the ICC as it has already withdrawn from the RS more than 6 years ago effective 2019. Ano ba talaga, kuya? This should have already been deemed clarified (or has it?) by the SC ruling in the case of the Philippine withdrawal from the ICC, Pangilinan vs. Cayetano, G.R. No. 238875, March 16, 2021: (underscorings supplied)

   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 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. (Emphasis [italics by SC] supplied)

   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.

            On the basis of this SC ruling, the RP, although no longer a State Party to the RS, was obliged by Art. 127(2) to cooperate with the 7 March 2025 ICC WOA for Duterte because this was “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.” This “duty to cooperate” is among what are referred to as “residual obligations” of the withdrawing State like the RP even after its withdrawal from the RS. The SC further clarifies that “Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate.” The phrase “whatever process” is broad enough to cover the informal preliminary examination that the Office of the Prosecutor (OTP) started on 8 February 2018. And this was more than one year before the effectivity of the RP withdrawal from the RS on 17 March 2019.

            The SC ruling statement that “Until the withdrawal took effect on March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute” should not be taken in isolation to mean that, after the withdrawal took effect on March 17, 2019, the RP was/ is no longer committed to meet its obligations under the RS. No, the withdrawing State the RP still has residual obligations thereunder.

            Incidentally, the Pangilinan unanimous decision’s dispositive portion does not categorically uphold the RP (through then President Duterte) withdrawal from the RS. After 100 pages of discussion, the SC (through the ponente Associate Justice Marvic Leonen) dismissed the consolidated three Petitions questioning the validity of that withdrawal for the simple reason that they were “MOOT.” This was so, it explained in page 99 towards the end of the discussion, because of the ICC’s “acknowledgement of withdrawal… removing any potential relief from this Court’s [the SC’s] sphere.” This is an indication that the SC recognizes its limited “sphere” when it comes to controlling actions of the ICC. To repeat, the SC has no jurisdiction over the ICC, only over the relevant Philippine authorities.

Aside from the afore-quoted DOJ Certification indicating RP cooperation with the ICC in the Duterte arrest and surrender, the ICC OTP itself actually recognized that cooperation in a Statement it issued soon thereafter, that it: (underscorings supplied)

… welcomes the arrest and transfer of the suspect Mr Rodrigo Roa Duterte, former President of the Philippines, on 11 March 2025 by the authorities of the Republic of the Philippines. Mr Duterte has been arrested in the context of the Office’s ongoing investigation into the Situation in the Republic of the Philippines.

xxx

… In pursuing further accountability in this Situation, the Office hopes to engage with the Philippine authorities on potential avenues of cooperation, and will continue to rely on the partnership of national authorities, regional and international organisations, civil society, and the communities affected by Rome Statute crimes.

This Statement hopes for continued RP cooperation “in pursuing further accountability in this Situation.” This phrase could well refer to new WOAs for other suspected co-perpetrators of the Duterte drug war CAH. The ICC WOA for Duterte itself towards the end indicates a directive to the ICC Registrar to “(iv) submit a progress report on the status of the execution of the request for cooperation…” This remains to be seen or shown, and it would likely provide more details about the cooperation obtained from the relevant Philippine authorities, whether directly and/or indirectly.

            So, do we now have a “he said, she said” type of scenario between the RP (esp. President Marcos Jr.) and the ICC as to cooperation in the Duterte arrest and surrender? Who is to be believed? President Marcos Jr. is not bound by the ICC view, but he is bound by the SC view.

            Aside from the issue of a withdrawing State’s cooperation with the ICC, there is also the question of RS applicability to the whole process of cooperation, such as in matters of arrest and surrender. In the RP cooperation with the ICC for the Duterte arrest and surrender, the RS applicability question may be moot and academic, given the afore-quoted DOJ Certification of avowed “compliance” with the RS, even citing its Part 9 and Articles 59(4) and (7). Indeed, it is only logical that any State cooperation with ICC processes entails compliance with RS provisions governing those processes. This must be seen as part of whatever residual obligation of cooperation by withdrawing States with the ICC. Note Atty. Tiojanco’s final comment of “hope the Supreme Court also clarifies the applicability of the Rome Statute’s procedural safeguards for persons arrested under an ICC warrant.”

            Despite the overwhelming evidence of and legal basis for RP cooperation with the ICC, at least with the Duterte arrest and surrender, it is a wonder why the relevant Philippine authorities led by President Marcos Jr. continue to hold the line of non-cooperation with the ICC, with or without the INTERPOL subterfuge for this. It can only mean no desire for further entanglement with the ICC after having quite deftly seized the moment accurately and quickly to dispose of their Duterte problem there. Good riddance from the domestic political scene with his expected long detention and longer imprisonment practically for life courtesy of the ICC, likely bypassing the crucial 2028 presidential elections. The Duterte buck has in effect been passed to the ICC, its OTP and the drug war victims’ families and counsels. The RP is no longer a party to this case, unlike during its earlier stages when the RP challenged the PTC’s authorization for the OTP to resume its investigation. The RP no longer represents Duterte like when he was President. Neither does the RP represent the victims. They are both on their own, without RP support, for now.

            That “partisan politics probably played a part in Duterte’s surrender” is an understatement. It could not have happened without the political will and admittedly tactical skill of the key Marcos Jr. administration officials. This does not necessarily mean that the Duterte arrest and surrender were not “right, just, and necessary.” This may simply be the serendipity of the right thing happening for the wrong reasons. Or call it karma that trumps hubris.

            Clarifying or perhaps further complicating all this is the chief RP legal counsel Solicitor General Menardo Guevarra’s cryptic Manifestation of recusal from the consolidated three Duterte family habeas corpus petitions case in the SC:

            4. In steadfast adherence to this sovereign decision [of RP withdrawal from the RS], the OSG has consistently maintained, both in its submissions before the ICC and in its public statements, that the case of the Philippines was not admissible and that the ICC failed to timely exercise its jurisdiction. Consequently, the Philippine Government has no legal obligation to cooperate with the ICC nor recognize any process emanating from the ICC following the effectivity of the country’s withdrawal from the Rome Statute.

            5. Considering the OSG’s firm position that the ICC is barred from exercising jurisdiction over the Philippines and that the country’s investigative, prosecutorial, and judicial system is functioning as it should, the OSG may not be able to effectively represent Respondents [mainly executive officials] in these cases and is constrained to recuse itself from participating herein,

Solicitor General Guevarra’s self-recusal is understandable given that his consistent position of no legal obligation of RP cooperation with the ICC is belied by or inconsistent with the shown and seen actual RP cooperation with the ICC in the Duterte arrest and surrender. The obvious question is: was he the chief RP legal counsel out of the loop on this?

            It is also inconsistent with the SC ruling statement that “Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court.” Though this is not binding on the ICC, it is binding on the executive department, and it brings us finally to the “pivotal issue” of ICC jurisdiction over the Duterte drug war CAH.

(SOLIMAN M. SANTOS, JR. is a retired Judge of the RTC of Naga City, serving in the Philippine judiciary from 2010 to 2022. He has an A.B. History cum laude from the University of the Philippines (UP) in Diliman in 1975, a Bachelor of Laws from the University of Nueva Caceres (UNC) in Naga City in 1982, and a Master of Laws from the University of Melbourne in 2000. He is a long-time human rights and international humanitarian lawyer;legislative consultant and legal scholar;peace advocate, researcher and writer; and author of a number of books. Among his recent books are a trilogy on his court work, namely Justice of the Peace: The Work of a First-Level Court Judge in the Rinconada District of Camarines Sur (2015);Drug Cases: A Naga Court’s Practice and Reform Agenda (2022); and Judicial Activist: The Work of a Judge in the RTC of Naga City (2023), all published by the law book publisher Central Books in Quezon City.)