‘Unwise and rash’ move to ‘disengage’ from ICC

We don’t have a next move, that is the extent of our involvement with the ICC. That ends all our involvement with the ICC. Because we will no longer appeal, the appeal has failed and there is, in our view, nothing more that we can do in the government and so at this point we essentially are disengaging from any contact, from any communication with the ICC.”

That was Ferdinand Marcos Jr.’s categorical reply to reporters’ query last Tuesday. News just came up that the International Criminal Court (ICC)’s Appeals Chamber had rejected the government’s request to suspend the implementation of the ICC Pre-Trial Chamber’s authorized investigation, issued last Jan. 26, of former president Duterte’s bloody “war on drugs” on possible crimes against humanity. He was asked what the government’s next step would be.

His attitude was “unwise and rash,” according to a lawyer for families of the drug war’s victims seeking justice through the ICC. Marcos Jr. should first confer with his legal team on the appropriate step to take, was the suggestion from Kristina Conti of the National Union of People’s Lawyers.

Solicitor General Menardo Guevarra, who leads the government’s legal team, indirectly concurred that Marcos Jr.’s words were indeed “unwise and rash.” The statement, he noted, could be interpreted in different ways. Thus, he needed to clarify matters with his principal: in particular, that the rejected appeal was not for the reversal of the Pre-Trial Chamber order, but only on the suspension of its implementation.

By inference, Guevarra was saying there was no basis yet for the government to “disengage” with the ICC. Unsure when the Appeals Chamber would decide on the pending appeal, filed last March 13, to reverse the Pre-Trial Chamber ruling, he said. “Personally… since we have already filed the appeal, we are not going to lose anything further by waiting for its resolution.”

Swiftly, however, strong reactions to Marcos Jr.’s statement emanated from two international arenas: First, from the United Nations Human Rights Council’s 52nd plenary session in Geneva that took up the latest Universal Periodic Review (UPR) on the country’s human rights situation; the other, from the second Summit for Democracy, convened Wednesday by US President Biden, mostly virtually with 121 countries participating, including the Philippines.

“Marcos Jr.’s intransigence [against the ICC] further exposes his government’s empty platitudes and rhetoric before the international community that the human rights situation in the Philippines is fine, and that its so-called fully functioning justice system is intent on investigating, prosecuting and punishing the perpetrators of the past regime’s bloody war on drugs.”

The statement, issued by the Philippine UPR Watch contingent at the UNHRC session, added: “It is becoming increasingly evident that Marcos Jr. has no intention to exact justice and accountability from the perpetrators. In fact, he maintains the same policies and the same climate of impunity that has led Duterte and his minions to get away with murder.”

At the US Summit on Democracy, Marcos Jr. delivered a video message stating that the Philippine participation was “a testament to our unwavering commitment to upholding democratic values and principles.” But when the summit issued a declaration – where it cited the “important role played by the ICC as a permanent and impartial tribunal complementary to national jurisdictions in advancing accountability for the most serious crimes under international law” – the Marcos government reacted negatively.

The Philippines was “disassociating” itself from that portion of the declaration hailing the ICC’s role, a Department of Foreign Affairs statement said. It explained that the country’s decision to withdraw from the ICC in 2018 was “precisely because the (ICC) failed the test of complementarity” after the ICC prosecutor conducted a preliminary examination on Duterte’s war on drugs.

(Complementarity means that when a nation’s government fails to properly investigate and resolve serious human rights violations that fall under the ICC jurisdiction, the latter is mandated to do the investigation and prosecute the rights violations perpetrators.)

A sharp rebuke quickly came from Human Rights Watch Asia director Elaine Pearson. The Philippine government, she said, “cannot say it upholds democratic values but at the same time reject, ridicule and threaten [an] accountability mechanism like the ICC.” She emphasized that the Marcos Jr. administration’s “avowed commitments to protect human rights and fight impunity will be shown by whether it cooperates with the ICC investigation.”

Back to the government’s pending appeal to the ICC.

What’s at issue now, given the denial of suspending the investigation, is when and how ICC Prosecutor Karim Khan can carry out a full investigation into the drug war during the period from Nov. 1, 2011 to March 16, 2019. (That covered the years from when Rodrigo Duterte was mayor of Davao City and, since July 1, 2016, as president.) On March 16, 2018, Duterte unilaterally withdrew the country’s membership in the ICC.

In a television interview, Guevarra clarified that the ICC prosecutors need not be barred from entering the country to conduct their investigation. The ICC is free to conduct their investigation either within the country, or through online, or by bringing witnesses from the Philippines to another country where they could provide their testimonies and execute their affidavits.

“What they probably won’t be able to do,” he pointed out, “is to seek cooperation from the Philippine government agencies because the President himself said we will not cooperate at this stage, wherein the questions on ICC jurisdiction over the Philippines have not yet been settled.”

Welcoming the ICC Appeals Chamber ruling, NUPL chairman Neri Colmenares, who leads a legal team representing drug-war victims and their families who seek justice through the ICC, remarked:

“The Philippine government request for suspension of the ICC investigation is only intended for delay, and the Appeals Chamber is correct in denying such request.  We ask the Appeals Chamber to once and for all deny the appeal of the Marcos-Duterte administration so that the investigation could be concluded and hopefully, the trial of former president Duterte could ensue.”

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