Philippines can enforce ICC warrant against Dela Rosa, OSG says

By Joseph Bernard A. Marzan

The Philippine government can legally enforce the International Criminal Court (ICC) arrest warrant against Sen. Ronald “Bato” Dela Rosa, even without coursing it through the International Criminal Police Organization (Interpol), the Office of the Solicitor General (OSG) told the Supreme Court.

In an 83-page comment filed Saturday, May 16, the OSG said the executive department “can legally enforce the ICC Warrant against [Dela Rosa] pursuant to Republic Act No. 9851.”

The filing came after the Supreme Court on Wednesday, May 13, directed the OSG to comment on two pleadings filed by Dela Rosa’s camp — an Urgent Manifestation With Omnibus Motion and an Extremely Urgent Supplemental Manifestation With Motion — both submitted Monday, May 11.

Both pleadings challenge the validity of the ICC warrant, arguing that the international tribunal lacks jurisdiction following the Philippines’ 2019 withdrawal from the Rome Statute.

Republic Act 9851, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, was signed in December 2009 by then-President Gloria Macapagal-Arroyo and took effect in January 2010.

The law adopts “the generally accepted principles of international law, including the Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and international humanitarian law” as part of Philippine law.

The OSG argued that enforcing the ICC warrant does not require a corresponding warrant from a Philippine court.

It cited Section 17 of RA 9851, which authorizes Philippine authorities to dispense with the investigation and prosecution of a covered crime if another court or international tribunal is already doing so.

The same provision also authorizes Philippine authorities to surrender or extradite an accused person to the appropriate international court or to another state.

The OSG also cited the Supreme Court’s 2021 ruling in Pangilinan v. Cayetano, which affirmed the country’s withdrawal from the ICC but maintained the tribunal’s jurisdiction over crimes committed during the period of Philippine membership, from Nov. 1, 2011, to March 16, 2019.

“Just as the decision to withdraw from the ICC involves a political question, so is the Executive’s decision to recognize a warrant issued by the ICC,” the OSG said.

“The withdrawal from the Rome Statute does not relieve a State Party from cooperating in proceedings already initiated before the ICC.”

“While the Philippines is no longer obligated under the Rome Statute, it acts within its legal rights when it cooperates with the ICC because it is authorized by domestic law,” the comment added.

The OSG also invoked Section 17 to argue that the regular Rules on Extradition Proceedings under Philippine law do not govern the implementation of the ICC warrant.

“Considering that Republic Act No. 9851 was enacted even prior to the Philippines’ accession to the Rome Statute, and that the Philippines has since ceased to be a State Party thereto, Section 17 of R.A. No. 9851 must be understood as operating independently of the Rome Statute framework,” the OSG said.

“The Rules on Extradition Proceedings do not govern the enforcement of the ICC warrant issued against Senator Dela Rosa,” it added.

The OSG called Dela Rosa a “fugitive” not entitled to judicial relief, citing his reappearance in the Senate on May 11 and his subsequent disappearance on May 14.

The office pointed to his previous statements resisting submission to authorities, his continued refusal to surrender, his counsels’ refusal to disclose his whereabouts, and his wife’s recent confirmation that he had “escaped.”

“[Dela Rosa] evaded legal process for six months. Then, he returned to the Senate not to comply with the law, but to vote in a politically significant leadership election. The timing of his return was driven entirely by political convenience rather than submission to legal authority,” the comment read.

“The circumstances extant evince a clear intent to evade the service of the ICC’s Warrant of Arrest. His flight, coupled with the fact that he had previously gone into hiding, is not merely incidental but is a deliberate act to avoid accountability. His conduct places him squarely within the definition of a fugitive from justice,” the OSG added.

The office also drew on Dela Rosa’s own record as Philippine National Police chief from 2016 to 2018, when he led the drug war launched under the Duterte administration.

The OSG cited data showing 16,355 homicide cases under investigation in the drug war from July 1, 2016, to Sept. 27, 2017 — figures lifted from the Supreme Court’s 2018 resolution in Almora v. Dela Rosa, in which Dela Rosa was the respondent.

The filing also quoted a Reuters story attributing the following to the senator: “If someone fights back, they’ll die. If nobody fights back, we’ll make them fight back. Produce blood. Instill fear.”

The word “accountability” appears 18 times in the OSG comment.

“To create new protections for one who long stood protected from accountability is to deepen the wounds already borne by those left behind. And to once more extend exceptional privileges to a petitioner who now seeks relief while evading lawful process sends a chilling message — not only to the victims of the drug war, but to all who look to the law for justice: that its protections are strongest for the powerful, and weakest for those who are now dead,” the OSG said in its prefatory statement.

“Indeed, Senator Dela Rosa’s acts demonstrate a clear and deliberate intent to evade arrest and prosecution. By his own conduct, he has placed himself outside the protection of the law, and until he submits himself to lawful authorities, he must be deemed a fugitive from justice and should not be allowed to seek any relief from the courts. The rule of law is not a convenience to be embraced in moments of protection but discarded in moments of accountability,” the office said in the closing arguments of its filing.

The OSG concluded that Dela Rosa cannot invoke domestic law to evade accountability under international law.

“The Philippines stands before the international community with a solemn commitment that this country will never become a sanctuary for impunity for the narrow and universally condemned class of atrocities known as crimes against humanity,” the comment read.

“Through Republic Act No. 9851, the State itself acknowledged and committed to the international community that there are crimes so grave that our government cannot simply look away.”

“At its core, this case asks what the rule of law truly means: whether the law exists merely as a shield for the powerful when accountability finally reaches them, or whether it still carries its highest purpose which is the attainment of justice. The law was never intended to provide an excuse for evasion, nor to become a weapon wielded only by those with power. It exists so that even the voiceless dead, whose cries never reached a courtroom, are not forgotten by justice,” the OSG said.

The two pleadings from Dela Rosa’s camp were filed Monday, May 11 — the first before his surprise reappearance at the Senate, and the second later that day, after former senator Antonio Trillanes IV appeared at the Senate and presented a purported copy of the ICC warrant to the press.