Cooperation with ICC

Since Rodrigo Duterte pulled the Philippines out of the International Criminal Court without Senate concurrence, President Marcos can reverse it also without the Senate’s nod, according to proponents of the country’s return to the ICC.

If Marcos is worried about sovereignty issues, will he at least allow some form of cooperation with the ICC? This is the suggestion in the resolution filed in the House of Representatives.

For the Marcos administration, cooperation can take various forms, without looking like it is compromising national sovereignty. For example, it can facilitate contacts between ICC probers and witnesses including relatives of those killed.

The witnesses can include law enforcers who directly participated in the police operations that left over 6,200 people dead. Justice officials said they have heard of such cops, and have encouraged them to come out. But so far, no one has done so, despite the promise of state protection. Perhaps such cops may be willing to talk with ICC prosecutors overseas. The same is true for civilian witnesses.

Cooperation can also involve allowing ICC probers to conduct interviews, obtain documents and gather other evidence in the Philippines, although not in an official legal setting; the ICC cannot operate like a separate court in this country.

Last week, Solicitor General Menardo Guevarra said ICC probers could enter the Philippines to gather documents or interview persons, although a formal probe and “legal activities” cannot be conducted.

Guevarra said that under the law, the Bureau of Immigration (BI) and its mother agency the Department of Justice (DOJ) have the discretion to “admit or not admit a certain person who they may consider as undesirable.”

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As of last Friday, the BI spokesperson said ICC probers were free to enter the Philippines, in the absence of an order from the courts or higher authorities to bar their entry.

Vice President Sara Duterte has formally asked the DOJ not to cooperate in the ICC investigation of drug war killings that occurred during her father’s watch as president from July 2016 to March 16, 2019, and from 2011 to 2016 when he was mayor or vice mayor of Davao City.

As mayor when her father was vice mayor, the VP is reportedly included in the ICC probe of killings attributed to so-called death squads in the city, along with Duterte’s chief tokhang enforcer Ronald dela Rosa, now a senator.

Dela Rosa said he raised the ICC issue with President Marcos during a dinner at Malacañang last week hosted by the First Couple for senators. It’s unclear if the ICC was the main course in the dinner agenda.

Both the DOJ and BI are waiting for word from the top, as Justice Secretary Jesus Crispin Remulla has indicated.

President Marcos, who had previously said the country “is done talking” with the ICC, recently said the government is studying its options and the possibility of the country rejoining the court is “under study.”

Remulla himself, who had initially taken a hardline stance against the ICC probe, said on Nov. 21 that the House resolution needed “serious study” since the Philippines has withdrawn from the Rome Statute.

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House resolution 1477 was filed by the chair of the committee on human rights, Manila 6th District Rep. Bienvenido Abante, and 1-Rider party-list Rep. Ramon Rodrigo Gutierrez. It urges the government to extend “full cooperation” to the ICC in its probe of Rome Statute crimes. These include genocide and murder as a crime against humanity – the offense that the ICC believes was committed in Duterte’s bloody crackdown on drug suspects.

The ICC maintains that it has jurisdiction over all offenses committed while a state was a party to the Rome Statute.

Even after withdrawing as a member, a state must still cooperate with the ICC, according to Article 127 of the Rome Statute: “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.”

VP Sara has cited her father’s argument that the ICC lost jurisdiction over the Philippines upon the effectivity of the country’s withdrawal from the Rome Statute on March 17, 2019, which preceded the start of the ICC’s investigation in 2021.

It’s BBM’s call. It’s not lost on anyone that the administration had a change of heart on the issue amid the run-ins between VP Sara and Marcos’ cousin, Speaker Martin Romualdez. Rodrigo Duterte came to his daughter’s defense, with his harangues ostensibly directed at the Speaker. But manure upon hitting the fan tends to fly in all directions, with some of it landing on President Marcos.

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Now look at what’s in the crosshairs of the House: Sonshine Media Network International (SMNI), home of Duterte’s TV talk show and current bully pulpit against the House and its Speaker.

Apart from the threat of the TV station suffering the fate of ABS-CBN, SMNI founder Apollo Quiboloy could finally find himself handed over by the Philippine government to the US Federal Bureau of Investigation, which lists him among its most wanted persons for sex trafficking including of children, fraud, coercion and bulk smuggling.

SMNI has long been the subject of complaints from persons and groups tagged on its shows as communists or sympathizers. Yet the station drew the House attention only after an anchor made a comment indicating that the Speaker had incurred P1.8 billion in travel expenses. The anchor has since apologized and admitted that the information – denied by the House – was unverified.

Unlike the print medium, broadcast franchises are covered by stringent rules, and journalists are held by ethical standards to avoid licentious exercise of press freedom. Still, the issue has raised concern over threats to freedom of expression through the abuse of the House power to issue broadcasting franchises.

SMNI critics, on the other hand, see the controversy as an opportunity, in our dysfunctional democracy, to promote the responsible exercise of freedom of expression, and perhaps to give justice to victims of sex trafficking.

A similar opportunity for justice is being seen in the move to cooperate with the ICC.