Legal experts reject Dela Rosa's claims: 'The ICC is not a foreign court'
MANILA, Philippines — The International Criminal Court is not a foreign court, international law experts said, as they pushed back against the framing used by allies of Sen. Ronald "Bato" dela Rosa to resist enforcement of the ICC warrant against him.
Lawyer Gilbert Andres, common legal representative of drug war victims, said senators should not describe the ICC as a foreign court of another sovereign state because it is a permanent international criminal tribunal created by the community of states.
"The International Criminal Court is not a foreign court. Let me repeat that: the International Criminal Court is not a foreign court," Andres said in an interview on ANC's "Headstart" on Thursday, May 14.
"It's a permanent international criminal court established by the community of states because they don't want impunity for perpetrators of international crimes," he added.
The Rome Statute, the ICC's founding treaty, describes the court as a "permanent institution" with jurisdiction over persons accused of the most serious crimes of international concern.
Andres said the "foreign court" argument of the Duterte-aligned Senate bloc wrongly treats the ICC as a court of another country. If the warrant came from another sovereign state, he said, extradition proceedings would be needed.
"The key word... is 'foreign,' a foreign court by another state," Andres said. "The ICC is not a foreign court."
He said the Philippines itself participated in the Rome Conference in 1998 and later became a state party to the Rome Statute before withdrawing in 2019, under then-president Rodrigo Duterte who was the subject of a crimes against humanity case filed at the Hague tribunal.
The comments were made the day after multiple gunshots were hears inside the Senate building where Dela Rosa was taking refuge since Monday. Journalists ran for cover, while senators—all allies of Dela Rosa—sheltered in a room with Senate President Alan Peter Cayetano.
Senate Secretary Mark Llandro Mendoza later told reporters that the shots were warning shots fired to "secure the area," but senators streaming on their Facebook accounts claimed they were being "attacked" and "even shot at" despite the absence, so far, of any confirmed hostile force inside the building.
Both the National Bureau of Investigation and the Philippine National Poilice denied that their personnel fired the shots or had entered the Senate to arrest Dela Rosa, saying they were ordered to stand donw.
Surrender, not extradition
Evecar Cruz-Ferrer, an international law expert, made a similar distinction, saying extradition—or the transfer of a suspect in custody by Philippine authorities to a foreign state—is not applicable to Dela Rosa's situation.
"Extradition will not apply in this case since the arrest warrant is not issued by a state. Surrender is the option that is available in this case," Cruz-Ferrer told Philstar.com in an interview May 13.
She said arguments that the warrant must first be processed by a domestic court appear to rely on Article 59 of the Rome Statute, which provides that an arrested person shall be brought promptly before a competent judicial authority in the custodial state.
But Cruz-Ferrer said Article 59 cannot be invoked by the Philippines because it withdrew from the ICC effective March 17, 2019.
"Article 59 is NOT APPLICABLE for the Philippines since it opted out of the ICC effective March 17, 2019. Since the Philippines is no longer a party to the ICC, Article 59 cannot be invoked in the arrest of Senator Dela Rosa," Cruz-Ferrer said.
"There is no need to bring the ICC arrest warrant before local courts prior to implementation. ONLY STATE PARTIES can invoke Article 59 of the Rome Statute," she added.
The Vienna Convention on the Law of Treaties provides that a treaty does not create obligations or rights for a third state without its consent.
RA 9851 argument
Both Andres and Cruz-Ferrer cited Republic Act 9851, the Philippine law on international humanitarian law, genocide and other crimes against humanity, as the domestic legal basis for surrendering a suspect to an international tribunal.
Section 17 of RA 9851 allows Philippine authorities, "in the interest of justice," to dispense with investigation or prosecution if another court or international tribunal is already investigating or prosecuting the same crime.
It also provides that authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court or another state.
"Since the ICC was already 'conducting the investigation' and 'undertaking the prosecution' of such crime, then the government has the option to 'surrender' the person accused, which is what happened in the situation of former President Duterte," Cruz-Ferrer said.
"Similarly, the same will apply to the situation of Senator Dela Rosa," she added.
Andres said the Philippines' withdrawal from the Rome Statute is less central because RA 9851 remains in force.
"Hence, it's very clear that it is irrelevant in a material sense whether or not we even joined the Rome Statute, because RA 9851 exists," Andres said.
The Supreme Court, in Pangilinan v. Cayetano, said RA 9851 was passed before the Senate concurred in the Rome Statute and is "broader than the Rome Statute itself."
No Senate immunity
Andres also rejected the claim that Dela Rosa's status as a senator gives him immunity from arrest. The Constitution protects senators and House members from arrest while Congress is in session only for offenses punishable by not more than six years' imprisonment.
Crimes against humanity under RA 9851 carry penalties beyond six years, Andres said.
"We don't want the Senate to be a safe haven for impunity for those who are the subject of an ICC arrest warrant for an international crime," he said. — Camille Diola, Ian Laqui
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