Back to the ICC?

What can the Marcos administration gain from bringing the country back to the fold of the International Criminal Court?

For one, it’s a good way of burnishing the Marcos brand and remaking the global image associated with Ferdinand Marcos as a gross violator of human rights. Ferdinand Junior has nothing to fear; the ICC is not about to investigate him or his relatives for Rome Statute crimes.

 For another, it may free up state resources and manpower that are currently undertaking the difficult task of identifying which of over 6,000 drug deaths officially reported by the police are cases of extrajudicial killings and which ones resulted from legitimate law enforcement operations.

As Solicitor General Menardo Guevarra has lamented, probers are having a tough time finding witnesses and material evidence to establish EJK cases. Last year, Justice Secretary Jesus Crispin Remulla urged police officers involved in the killings to come out and testify, promising them protection under the Marcos administration. There are no takers so far.

Guevarra told “The Chiefs” on OneNews that separating the legit kills from the extrajudicial is needed to build a case for possible murder as a crime against humanity – the Rome Statute offense that the ICC is pursuing against Rodrigo Duterte when he was mayor and then president.

The country has a law covering crimes against humanity: Republic Act 9851, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.

Harry Roque, Duterte’s lawyer in the first criminal case filed against him after his presidency, says those pushing for an ICC probe can instead file a case in the Philippines for violation of RA 9851. Incidentally, Harry says the criminal case against Duterte is proof that the country’s justice system is working.

Duterte has said he is willing to face any complaint filed against him in connection with his brutal campaign against illegal drugs – but only in the Philippines.

What will he do if the Marcos administration decides to make the country rejoin the ICC?

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From the unequivocal statement that “we’re done talking with the ICC,” President Marcos is now saying the proposal is being studied.

The first in the administration to seemingly change his tune on the issue was Remulla, who had previously maintained that it’s an insult to the country’s justice system and sovereignty for the ICC to conduct a probe on Duterte’s war on drugs. 

President Marcos, in a chance interview, reiterated that the country’s justice system is functioning and there’s no need for the ICC to step in. But for the first time, he said rejoining the ICC is “under study” by his government. BBM wasn’t misquoted or taken out of context; the story was carried even by the Presidential Communications Office.

In Southeast Asia, only Cambodia is part of the ICC, which conducted the probe on the Khmer Rouge’s murderous campaign in that country. In 2018, after a long and expensive trial, the court found two Khmer Rouge leaders guilty of genocide.

The Rome Statute was adopted in 1998 by 120 countries, with 21 abstentions. Seven voted against: China, Iraq, Israel, Libya, Qatar, the US and Yemen. Since then, Burundi, Gambia and South Africa have withdrawn from the ICC. Israel, Sudan, Russia and the US have signified that they are not ratifying the treaty.

The Philippines ratified the Rome Statute on Aug. 30, 2011, becoming the 117th member of the ICC. The court has jurisdiction over Rome Statute crimes committed in the country since Nov. 1, 2011.

 On March 17, 2018, after the ICC chief prosecutor announced a preliminary examination of drug deaths in the Philippines since July 1, 2016, the country filed a written notice of withdrawal from the ICC. The withdrawal took effect a year later, on March 17, 2019.

 The ICC maintains that despite the withdrawal, it has jurisdiction over possible crimes committed when the Philippines was still a party to the Rome Statute. The court’s Pre-Trial Chamber, upon the ICC prosecutor’s request, authorized the opening of an investigation on Sept. 15, 2021, after finding “reasonable basis to conclude” that crimes within the court’s jurisdiction had been committed.

Guevarra and other legal eagles of Marcos 2.0 have said that since the investigation was initiated two years after the country’s withdrawal from the Rome Statute took effect, the ICC has no jurisdiction over the cases. 

In June 2020, Duterte had created an inter-agency panel to reinvestigate the drug deaths. After monitoring the progress of this undertaking to determine its “genuineness,” the ICC prosecutor determined that “the overall failure to take meaningful action to bring perpetrators to justice, particularly when combined with promises of immunity or protection from accountability, constitutes a form of encouragement to perpetrators to continue committing violent crimes against suspected drug users and dealers.” 

Last Nov. 20, several members of the House of Representatives filed a resolution urging the government to extend “full cooperation” in the ICC’s probe. BBM’s statement was in reaction to this development.

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Inevitably, there is speculation that Marcos 2.0 is laying the groundwork for handing over the drug war probe, along with Duterte, to the ICC.

Make that the Dutertes – father and daughter – because Vice President Sara Duterte is included in the ICC probe, as mayor of Davao City when drug killings attributed to so-called death squads occurred.

And because Daughterte is implicated, there are suspicions that the House resolution – and perceived shift in the administration’s stand on the issue – could be part of the ongoing intramurals (denied all around) within the UniTeam.

 Speaker Martin Romualdez’s reaction to the filing of the House resolution has been, don’t look at me.

 He also previously distanced himself from the “informal discussions” in the chamber about impeaching Daughterte over the P125 million in confidential funds that she requested in her first six months as VP, and which she spent in just 11 days in December.

Because this issue would necessarily implicate the approving authority for the fund transfer and source of the secret funds – the Speaker’s cousin BBM himself – Romualdez’s statements on the VP’s impeachment could be true. 

On the ICC probe, whether or not Romualdez had a hand in the House resolution, there are indications that Marcos 2.0 is having a change of heart. Even Duterte’s chief Tokhang enforcer, Sen. Ronald dela Rosa, sensed the shift and said it surprised him. 

BBM has said the government is studying its options. 

Really, what has he got to lose? From the continuing tirades of Rodrigo Duterte, it looks like BBM has already lost the support of that clan anyway.