The Philippines vis-a-vis the International Criminal Court

Does the International Criminal Court ICC have jurisdiction over the case of former President Rodrigo Duterte? If you are Senators Hontiveros, Pimentel, De Lima, and Trillanes, you will most probably say yes. If you are Vice President Sara, or Senators Go and Dela Rosa (where is he by the way), I bet you will say no.

Before any substantive issue can be resolved by any court, the issue that should be addressed first is: Does the court have jurisdiction over both the subject of the case and over the person of the accused? By arresting Duterte, the ICC has acquired jurisdiction over his person. And the alleged crimes he committed took place when the Philippines was still part of the ICC.

The organic international legal instrument that gave birth to the ICC was the Rome Statute, which is an international convention signed by 120 countries in Rome, Italy, on July 17, 1998. The ICC entered into full force on July 1, 2002 after 60 countries ratified it. While today, the Philippines has already disengaged from the ICC, at the time of the alleged summary executions of innocent people, we were still members of ICC. You cannot be a member when it is convenient for you and then disengage to save your skin from the reach of law.

The Philippines signed the Rome Statute on December 28, 2000, perhaps to honor the Day of the Innocents, the solemnity of the thousands of babies and people mass murdered by King Herod. The Philippine Senate ratified the same on August 30, 2011, perhaps to honor Ninoy Aquino, who was also a victim of extra-judicial killing, like Gat Andres Bonifacio. Until today, it has not been determined with reasonable certainty who really ordered the killing of Ninoy.

Under its charter, the ICC takes jurisdiction over cases involving the gravest crimes with international implications, like war crimes and crimes against humanity, including but not limited to wars of aggression like what Vladimir Putin of the Russian Federation did to Ukraine, or genocide, like what Benjamin Netanyahu of Israel is being charged with in relation to the alleged massacres in Gaza. In fairness to Israel, Netanyahu was just defending his country from the attacks made by Hamas supported by Iran.

We need to understand that the ICC is the first and the only permanent international criminal court, which is treaty-based and established independent of the United Nations, precisely to help end heinous crimes of impunity committed by dictators, tyrants, political oppressors, illegal invaders, international criminals and syndicates, and transnational criminals. It is the civilized world's concrete manifestation of humanity's concern for justice based on the rule of law.

Our own former senator Miriam Defensor Santiago was elected as a judge of the ICC on December 12, 2011. She was the first Filipino and first Asian to be conferred such an honor, albeit she failed to assume her position due to health reasons and pressing responsibilities as senator. She topped the election in the first round of voting and it could have been our distinct honor had she opted to go to The Hague to perform her duties as such. She was the number one choice by 129 member states, of whom 117 cast their votes.

As of today, the following are the officers of ICC: Tomoko Akane from Japan who serves as president of ICC; Rosario Salvatore Aitalia, first vice president from Italy; and Reine Alapene Gensou from Benin, second vice president. The following serve as trial judges: Kimberly Prost from Canada, Joanna Korner from UK, Miatta Maria Samba from Sierra Leone, Althea Violet Alexis-Windsor from Trinidad and Tobago, Kaebung Paek from South Korea, Nicolas Guillou from France, and Beti Hiller from Slovenia. Three of these judges shall hear the cases against Duterte.

Even if the Philippines is not an ICC member today, the Philippines has tacitly agreed to submit to the jurisdiction of that court by allowing Duterte to be arrested and transported to The Hague. The DOJ, DILG, and PNP which are all under the president cooperated with Interpol which served the warrant of arrest. Besides, the acts were supposedly committed while the Philippines was still a party to the Rome Statute.

The Philippines is now bound by ICC jurisdiction because we have voluntarily submitted to that jurisdiction. And we can no longer question it. There is a doctrine called jurisdiction by estoppel. I will explain it in the next column.