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 (Last of 5 parts)

Last of five parts

The “Pivotal Issue” of Jurisdiction

Amid the overwhelming din of lawyer and non-lawyer opinions on the legality of the Duterte arrest and surrender to the ICC, it is CJ Panganiban who has called attention to “the pivotal legal issue: the jurisdiction of the ICC to conduct trial and pass judgment on Duterte.”  Indeed, our ad judicium (“for trial, judgment and justice”).  This pivotal jurisdiction issue over the Duterte drug war CAH in the case of a withdrawing State like the RP hangs or turns on whatever prevailing ICC interpretation of the second limb (underscored supplied below) of RS Art. 127(2) on the effect of withdrawal:

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. 

It is not true, as some say, that the ICC had already resolved this jurisdiction issue in its 18 July 2023 Appeals Chamber Judgment on the RP appeal against the PTC authorization of the OTP to resume its investigation of the Duterte drug war CAH.  The 3-2 majority of the Appeals Chamber dismissed the RP appeal on grounds or reasons that did not include ruling substantively on the jurisdiction issue relevant to the RP withdrawal from the RS.  The majority 3 Judges ruled that this issue was not properly raised earlier and so could not be ruled on at the appeal level.  The minority 2 Judges dissented from that ruling, contending that the jurisdiction issue was properly raised earlier and that it was pivotal because the ICC no longer had jurisdiction, as the RP had already withdrawn by the time the Duterte drug war CAH came “under consideration by the Court” with the PTC’s formal authorization for the OTP to commence an investigation, not just the OTP’s unilateral commencement of an informal preliminary examination.  

This jurisdiction issue is bound to be raised again in another coming challenge “prior to the confirmation of the charges,” this time by the individual suspect Duterte, no longer by the RP.  It is in the interest of the Marcos Jr. government representing the RP that the ICC continue to exercise jurisdiction over Duterte now in its custody, otherwise there would no longer be any legal basis for such custody, in which case he would be released and can normally return to the Philippines, to the likely dismay of the Marcos Jr. political camp.           

The legal issue of ICC jurisdiction in the case of a withdrawing State here is: was the Duterte drug war CAH “already under the consideration by the Court” prior to the date on which the RP withdrawal from the RS became effective on March 17, 2019?  If prior, the ICC has jurisdiction.  If not prior, the ICC has no jurisdiction.

But then when is a matter reckoned to be “already under the consideration by the Court”?  Is it when the OTP unilaterally starts the informal preliminary examination into the several complaints against the several Duterte drug war CAH?  OR is it when the PTC authorizes the formal investigation thereof?  In this regard, it would help to note certain key dates in the ICC Duterte Case:

24 Apr 2017 – filing of the first complaint against the Duterte drug war CAH

8 Feb 2018 – start of the OTP unilateral informal preliminary examination

into several complaints against the Duterte drug war CAH 

17 Mar 2018 – RP withdrawal from the RS

17 Mar 2019 – effectivity of RP withdrawal 

15 Sep 2021 – PTC authorizes OTP formal investigation of the Duterte drug war CAH

  There is actually no “two year prescriptive period” under the RS after the effectivity date of a State’s withdrawal before which the PTC must authorize the OTP formal investigation in order for the ICC to “continue consideration” or retain jurisdiction over “the matter which was already under consideration by the Court.”  It just so happened in the ICC Duterte Case that the PTC authorization of the OTP formal investigation occurred more than two years after the RP withdrawal from the RS.  But the real legal issue is as was stated above: was the Duterte drug war CAH “already under the consideration by the Court” prior to the effectivity date of RP withdrawal on March 17, 2019?  As stated, there are two schools of thought on when “the matter was already under the consideration by the Court” —     

1. Upon the start of the OTP unilateral informal preliminary examination on February 8, 2018 [which was prior to the RP withdrawal effectivity]
2. Upon the PTC authorization of the OTP formal investigation on September 15, 2021 [which was not prior to the RP withdrawal effectivity] 

The aforementioned minority 2 dissenting Judges (one has since retired, just like one majority Judge) essentially argued the second school of thought this way in their Dissenting Opinion:

… we consider that the Prosecutor’s preliminary examinations are not a “matter […] under consideration by the Court” within the meaning of article 127(2) of the Statute, and that a situation is only under consideration by the Court once a pre-trial chamber authorises an investigation into that situation.  This is largely due to informal nature of the preliminary examinations, which do not carry sufficient weight for engaging the Court’s jurisdiction, in the absence of a pre-trial chamber’s formal authorisation of the commencement of an investigation, pursuant to article 15 of the Statute.  We consider that the last sentence of article 127(2) of the Statute cannot be relied upon to extend the Prosecutor’s power to submit an article 15(3) request beyond the time the withdrawal has become effective.

They also earlier argued that:

… the Prosecutor has to make all efforts to trigger the Court’s jurisdiction in a manner that would not infringe the right of a State to withdraw from the Statute [but also prevent any misuse of the State’s right to withdraw]. We are of the view that one year [after withdrawal before its effectivity] is sufficient for the Prosecutor to conduct his preliminary examination and request a pre-trial chamber to authorise the commencement of the investigation, and for the pre-trial chamber to rule upon such request…              

This dissenting view of 2 Judges is of course not authoritative but it will likely be re-argued by the defense counsel of Duterte in a coming challenge to the ICC’s jurisdiction in the Duterte Case under RS Art. 19 likely “prior to the confirmation of the charges” hearing scheduled on September 23, 2025.  This dissenting view is however somewhat bolstered by an ICC PTC 2017 Decision in the case of Burundi, the first State Party to withdraw from the RS, the RP being the second. In that Decision, the ICC “retained jurisdiction over the Burundi Situation precisely because the former Prosecutor sought authorisation and Pre-Trial Chamber III authorised the investigation before the withdrawal became effective.”  

This may be worth only two cents but I would dissent to that dissent. Its second school of thought that the Duterte drug war CAH “was already under the consideration by the Court” only upon the PTC authorization of the OTP formal investigation is too narrow or restrictive an interpretation of “already under consideration” and of “the Court.”  The plain English “already under consideration” should be construed more liberally or broadly to cover, under the first school of thought, the OTP unilateral informal preliminary examination, pursuant to the very spirit of the law (mens legis) which is the RS, as stated in its Preamble, including: 

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, 

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, 

Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole, 

And the spirit of the law does not or should not exist in a vacuum from the factual Situation in the Republic of the Philippines which was the Duterte drug war  Crime Against Humanity of Murder of from 6,000+ (minimum) to 30,000+ (maximum) persons from November 1, 2011 to March 16, 2019, when the RP was still a State Party to the RS for more than seven years.  The “gravity of the alleged crimes” and the role of suspect co-perpetrator Duterte therein as the admitted mastermind and principal enabler should be considered along with the intention, purpose and reason for the law (ratio legis) which is the RS, just as these ought to be among the considerations in reaching a decision on his application for interim release — which itself has other considerations like “resultant risk of interference with the investigations and the security of witnesses and victims.” 

Likewise, the term “the Court” in the phrase “already under the consideration by the Court” should likewise not be too restrictively construed to refer only to the judicial chambers of the ICC like “an Appeals Division, a Trial Division and a Pre-Trial Division.”  Aside from those, the RS itself in its Art. 34 on “Organs of the Court” also enumerates “The Presidency,” “The Office of the Prosecutor,” and “The Registry.”  Clearly, the OTP is an organ of the ICC.  And therefore when the OTP started on February 8, 2018 its unilateral informal preliminary examination into several complaints against the Duterte drug war CAH, it can then be said that the “matter… was already under consideration by the Court prior to the date on which the withdrawal [of the RP from the RS] became effective” on March 17, 2019.   The ICC should thus retain jurisdiction over the RP Situation.

I wish to thank good friend former ICC Judge Pangalangan for his help in sorting out the interpretation of the RS Art. 127(2) second limb or last phrase by parsing it into two parts the terms “already under consideration” and of “the Court.” Incidentally, he was in the PTC III that issued the aforesaid 2017 Decision in the Burundi Case. That the ICC “retained jurisdiction over the Burundi Situation precisely because the former Prosecutor sought authorisation and Pre-Trial Chamber III authorised the investigation before the withdrawal became effective,” in my view, does not or should not necessarily preclude the ICC from retaining jurisdiction over the RP Situation because the former Prosecutor started a unilateral preliminary examination before the RP withdrawal became effective. 

In ending this admittedly over-long article, whether or not the ICC retains jurisdiction over the Duterte Case, and I hope it does, the relevant Philippine authorities and concerned citizens, especially human rights advocates, should not forget the House Quad Committee’s bold recommendation of the filing of charges under RA 9851 for the Duterte drug war Crime Against Humanity of Willful Killing against former President Duterte, Senator Bato dela Rosa, Senator Bong Go, former PNP Chief Oscar Albayalde, former PNP Chief Debold Sinas, PCOL Royina Garma, and PCOL Edilberto Leonardo. EVEN IF the ICC Duterte Case proceeds to trial, it will cover the Duterte drug war only up to March 16, 2019.  It will not cover the remaining 3 years and 3 months of Duterte’s term from March 17, 2019 up to June 30, 2022, that includes a good number of the 6,000-30,000 drug war victims.  How about the justice for them and also the justice for and accountability of the co-perpetrators?  Is the political will for this still there now that the Duterte problem has been passed to the ICC? Have we forgotten the State policy in RA 9851, Sec. 2(e):     

The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes;

But Duterte is now in the ICC detention center, how do we serve a Philippine court warrant of arrest against him? Ask the cooperation of INTERPOL and the ICC, in international comity reciprocation of the cooperation that the RP gave them for the Duterte arrest and surrender. Post tenebras lux (“After darkness, light”). 

(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.)