ICC vs Putin & Duterte

Disabuse yourself of any wishful thinking. This is my friendly advice to the moribund opposition and anti-government forces who relish seeing our former president Rodrigo Duterte and Russian Federation President Vladimir Putin as prison mates at The Hague detention center soon. In my view, the International Criminal Court (ICC) cannot extend its jurisdictional reach to non-States Parties like the Philippines and Russia, which would never allow the intrusion of a foreign tribunal within their sovereign territories.

Both countries were signatories to the Rome Statute in 2000. While the Philippines ratified the treaty to become a member in 2011, Russia never did. The Eurasian nation, the United States and China are United Nations Security Council permanent members that have rejected ICC membership. Russia withdrew its signature from the Statute in 2016. We officially pulled out from the ICC in 2019. Thus, the Court should no longer have jurisdiction over the Philippines and Russia.

More importantly, the Marcos administration has consistently stated that the country will not rejoin the ICC. It has also vowed not to cooperate with the Court’s investigation of the war on drugs from 2011 to 2019 since it threatens the country’s sovereignty.

War crimes and crimes against humanity

On March 23, the ICC Pre-Trial Chamber II issued arrest warrants for Mr. Putin and Russia’s Commissioner for Children’s Rights Maria Lvova-Belova on war crimes allegations. The Court accused the two of unlawful deportation and transfer of Ukrainian children from occupied areas to Russia, in violation of Articles 8, 25 and 28 of the Rome Statute.

The case stemmed from the ICC investigation on the situation in Ukraine referred by 39 State Parties last year. Due to constitutional impediments, Ukraine remains a non-ICC member. However, under Article 14, Section 1: “A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed, requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”

In response, former Russian president Dmitry Medvedev raised the possibility of a Russian ship in the North Sea firing a hypersonic missile at The Hague courthouse. Following Germany’s pronouncement of apprehending Putin once he sets foot in its territory, Medvedev said Russian missiles would fly to the Bundestag and the chancellor’s office. The country’s Investigation Committee has launched its criminal investigation on possible violations committed by the ICC prosecutors against Russian laws.

The Putin issue has further exposed the limitations, if not apparent inutility, of the Court’s universal jurisdiction. To fully exercise its mandate, the ICC relies on international cooperation and judicial assistance of States and non-States Parties. By its reckoning, the Court has no police force to make arrests, transfer arrested persons to The Hague detention facility and enforce sentences. Unless Mr. Putin travels outside Russia, the probability of an ICC-sanctioned arrest is low.

In Duterte’s case, the ICC has resumed its preliminary probe on alleged crimes against humanity related to the drug war campaign during his tenure as Davao City local executive and Philippine president. The ‘crime against humanity’ is defined under Article 7 as any act, such as murder, torture or rape, committed as part of a widespread or systematic attack directed against any civilian population.

As his counsel, I can attest that the former president remains unbothered by the Court’s decision. We stand by our position that the Duterte administration’s war on drugs is a valid sovereign act that sought to neutralize criminals involved in the illegal drug trade. The intent to kill, harm or destroy civilian lives, in part or whole, is a non-existent element in this established state program.

Violating the complementarity principle

We also maintain that the ICC has contravened the principle of complementarity. In its preamble, the Statute emphasizes the primacy of the State’s criminal jurisdiction over perpetrators of international crimes and the complementary nature of the ICC to national jurisdictions. In a 2003 Informal Expert Paper, the ICC stated that the complementarity principle respects the States’ primary jurisdiction and acknowledges their efficiency and effectiveness in accessing the best evidence, witnesses and resources to carry out proceedings. The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but are unwilling or unable to carry out genuine proceedings.

As I have said for the longest time, we did not surrender our Court’s primary right and responsibility to prosecute grave cases of international concern when we joined the ICC. The investigation is an affront to our functioning government, which is accountable to the rule of law and our mature and independent judiciary. Competently, our local courts have demonstrated the ability and willingness to investigate, prosecute or convict law enforcers involved in extralegal killings related to the drug war.

By extension, our judicial system has convicted government officials involved in plunder, corruption and murder. Two former heads of state of ours were imprisoned right after their term of office. A local court has also convicted elected officials involved in the Maguindanao massacre. Further, we have domestic legal remedies such as Republic Act 9851, which penalizes crimes against international humanitarian law, and Executive Order 226, which institutionalizes the ‘command responsibility’ doctrine in the government and the Philippine National Police. These are compelling proofs that the state has fulfilled its obligation to bring justice to the victims of heinous and international crimes under our local institutions.

Our former president is ready to face all charges in any local court. His complicity in any crime has yet to be established by the ICC. But he will never allow any foreign court to sit in judgment over him. So, to the yellow and pink troll army: dream on.