2 House panels adopt calls to help ICC probe of Du30

The House committees on justice and on human rights agreed on Wednesday to adopt three resolutions urging the government to cooperate with the International Criminal Court (ICC) in its investigation of former President Rodrigo Duterte’s war on illegal drugs.

The adoption of House Resolution (HR) No. 1477 filed by Manila Rep. Bienvenido Abante Jr. and 1-Rider Rep. Ramon Rodrigo Gutierrez, in consolidation with the Makabayan bloc’s HR 1393 and Albay Rep. Edcel Lagman’s HR 1482, followed more than four hours of deliberation during a joint hearing.

According to Abante, a member of the House majority bloc and chair of the human rights committee, the resolutions “demonstrate that no one is above the law and we are accountable for our actions.”

“Cooperating with the ICC underscores our commitment to upholding human rights. We recognize that a fair and impartial investigation is essential to address allegations of human rights abuses,” he said.

Abante also cited a Supreme Court ruling which said the ICC has jurisdiction over the alleged crimes against humanity committed during Duterte’s antidrug campaign until March 17, 2019, when the country’s withdrawal from the Rome Statute—the court’s founding document—took effect.

Lagman and Ako Bicol Rep. Raul Angelo Bongalon moved for the adoption of the three resolutions, without amendments, at the end of the joint hearing. The resolutions are to be transmitted to the House plenary for deliberation.

The two committees also approved Lagman’s motion to coordinate with Sen. Risa Hontiveros, who filed a similar resolution on Tuesday, so that “we can transform our respective resolutions into a concurrent resolution.”

Hontiveros’ Senate Resolution No. 867 also calls on Malacañang to cooperate with the ICC in investigating the country’s human rights situation.

A concurrent resolution “expresses the sense” of Congress on an issue, but it is not referred to the President for his signature and does not have the force of law.

The adoption of the House resolutions came after Duterte went on a rant on his “Gikan sa Masa, Para sa Masa,” program over SMNI in October, in which he called the lower chamber “the most rotten institution” after it decided to strip his daughter, Vice President and Education Secretary Sara Duterte, of P650 million in confidential funds that she was seeking for her office and the Department of Education next year.

He also admitted in the same TV program that he used intelligence funds to bankroll killings in Davao

City when he was mayor—a statement which ended up as evidence of the complaint against him lodged before the ICC.

Resource persons

At Wednesday’s hearing, House committee members heard from government officials and lawyers representing the families of the drug suspects killed in the drug war.

Solicitor General Menardo Guevarra maintained that the Philippines had no “legal duty” to cooperate with the ICC since it was no longer a member, adding that under the Rome Statute, a “precondition” for the court to exercise its jurisdiction through the investigation was for the country to be a member state.

“While in fact, it was admitted that the ICC had jurisdiction over the offenses committed during that period when we were still a member, unfortunately the trigger for the exercise of that jurisdiction came much too late,” he said.

He added that President Marcos had also “emphasized that we have no legal duty to cooperate.”

“What we are just saying is that the Philippines has issues of jurisdiction that are not yet settled. Don’t expect cooperation from us, but we won’t stop you from continuing the investigation,” Guevarra said. “You can investigate in whatever way you want, you can talk to any person you want, you can interview any witness you want, it is up to you. We’re just saying, don’t expect cooperation from the Philippine government, and we’re not defying the ICC appeals chamber and we’re not preventing the ICC prosecutor from proceeding with his investigation.”

The other resource persons—Hazel Decena-Valdez, program director of the Department of Justice’s Human Rights Office; Janice Rivera of the Department of Foreign Affairs’ Office of the United Nations and International Organizations; and Brig. Gen. Rodolfo Castil of the Philippine National Police—agreed with Guevarra.

For consistency

Commission on Human Rights (CHR) Commissioner Faydah Dumarpa, however, said they would cooperate “if the ICC so requests.”

“The extent of our cooperation would be determined and in accordance with the specific request of the ICC and within the mandate of the CHR to protect and promote the human rights of every Filipino,” she added.

Lawyer Gilbert Andres, executive director of the Center for International Law, pointed out that the Philippines was stressing the importance of adhering to international law and a rules-based international legal order in the West Philippine Sea dispute even if China does not recognize the 2016 arbitral ruling that negated its sweeping claim to the South China Sea.

“If we are faithful with that consistency of the Philippines for international law, we should also be consistent with our international obligation under the ICC Rome Statute,” he said.

Andres appealed to the House to look at the ICC investigation from the viewpoint of those who lost their loved ones in the drug war.

“All they are asking is justice and since it’s a fact that they did not get justice from the previous administration, they are asking it from the ICC. And we hope that this august body will really ask the Philippines to cooperate with the ICC for the sake of justice,” he said.

Lawyer and former Bayan Muna Rep. Neri Colmenares stressed that the complaint against Duterte was filed before the ICC in 2017 and that the court commenced its proceedings by 2018.

“That’s why we keep on asking, is he being prosecuted? Those are the questions of the families of the victims… This is not personal. This is about justice. We want the families of the victims to see a glimmer of justice that they were deprived of. Their due process and rights were trampled upon… that they had to go to the ICC to ask for justice,” he said.

Not political

In a TV interview, Hontiveros also stressed that the call for the country to cooperate with the ICC probe had nothing to do with politics.

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“This is more than politics. It’s really about justice and accountability,” she told ABS-CBN News Channel on Wednesday as she added that rejoining the ICC would benefit President Marcos as more people were calling for it.

She cited police reports about the 6,000 cases of extrajudicial killings in addition to the 30,000 more deaths reported by various human rights groups under Duterte’s drug war. “So this is really about them and it’s about accountability of government, of the state, to them. Widows and orphans of the war on drugs have been seeking justice for at least seven years,” Hontiveros said.

Asked to react to comments that the move was aimed at politically weakening the younger Duterte, she replied: “As for Vice President Sara, she’s perfectly capable of weakening herself politically on her own. I think she’s doing it by herself at this point in time.”

The Vice President last week issued a statement asking the House “not to insult and embarrass our courts” by letting ICC investigators into the country. She also said lawmakers should respect Mr. Marcos’ stand that the Philippines was done dealing with the international court.

After Duterte made her sentiments known, President Marcos said that proposals to rejoin the ICC were “under study.”

According to Hontiveros, she expects a fair hearing of her resolution, noting that it was like “poetic justice” that Mr. Marcos could simply, through executive action, “signal our active participation again in the ICC” because it was unilaterally withdrawn by his predecessor without Senate concurrence.

“Now, former Senator (Franklin) Drilon reminds us that because it was unilaterally done by Duterte, the Senate concurrence in joining the ICC under the Rome Statute is untouched. So now, process-wise, the President could simply say, we are still a member of the ICC. We will again actively uphold the Rome Statute,” she said.

Politically palatable

Legal experts familiar with the ICC process suggested that the government could accept limited or ad hoc jurisdiction of the court, short of actually rejoining the Rome Statute.

Lawyer Kristina Conti said that the government could invoke Article 12(3) of the statute, which provides a mechanism for a nonstate party to accept jurisdiction by lodging a declaration with the registrar. “In doing so, that State agrees to take on obligations of cooperation with and judicial assistance to the court,” she added.

The other “politically palatable option,” international law professor Romel Bagares said, was for the Philippines to say it was cooperating on the basis of “residual obligations” under Article 127(b), which would not require the reversal of the Philippine withdrawal. This follows the examples set by Uganda, Côte d’Ivoire, Palestine, Ukraine and Egypt, which had made similar declarations formalizing their commitment to the ICC process despite not being member states.

The country, Bagares said, could also just fully return to the fold of the statute by sending a notice of recall of the earlier notice of withdrawal “even if it has already become effective.”

The notice, he added, should “expressly state that it has the effect of the full acceptance by the Philippines of jurisdiction under Article 5 of the Statute.”

Article 5 may also serve the dual purpose of helping the country seek jurisdiction for crimes of aggression amid rising tensions in the West Philippine Sea between the Chinese and Philippine coast guards, Bagares said.