The jurisdiction and accountability conundrum in the context of ‘war on drugs’

By Atty. Anfred P. Panes

            In light of the recent suspension of the Philippine “war on drugs” by the International Criminal Court (ICC) in response to the country’s deferral request on November 10, 2021, several human rights groups have called upon the ICC to continue the probe on the accountability of all those involved and charged for crimes against humanity in the context of the country’s relentless “war on drugs”.

To preface things, how did the ICC – an international court – acquire jurisdiction over a Filipino national? Are we not supposed to indict a Philippine national in the domestic courts?  Here goes.

The Philippines acceded as a State party to the Rome Statute, an international statute which created the ICC, beginning on November 1, 2011 until the Philippines, under the present administration, deposited a written notification of withdrawal from the ICC on March 17, 2018. It was only on March 17, 2019, a year later, when the withdrawal took effect, following the international court’s rules of procedure. Interestingly, the Philippines is only the second country to withdraw from the Hague-based body after Burundi, which left in 2017.

Not surprisingly, the Philippines’ exit from the ICC opened the door to an array of legal issues. First, we tackle the issue of the constitutionality of President Duterte’s unilateral withdrawal from the ICC. The Supreme Court held in the case of Pangilinan vs Cayetano, et al., G.R. Nos. 238875, 239483, and 240954 that the unilateral withdrawal of the President from the ICC is a constitutional act.  How so? While Section 21, Article 7 of the Constitution provides that a vote of 2/3 of all Members of the Senate is required in ratifying a treaty, there is no specific provision requiring a vote of 2/3 of all Members of the Senate to withdraw therefrom. Thus, the President alone can withdraw from the ICC. This is in addition to the argument that the President, as the Chief Executive of the country, acts as the primary architect of foreign policy.

However, the High Court noted in its Decision that the ICC retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from November 1, 2011 up to and including March 16, 2019.  It was only in September 2021 when the Pre-Trial Chamber I of the International Criminal Court based in The Hague, Netherlands affirmed the official investigation on the alleged crimes against humanity of murder in the Philippines – detailing summary executions of innocent people including children to which the law enforcement officers alleged self-defense to justify these killings. Now, several interest groups have called for the resumption of the investigations on these crimes.

The strictly limited jurisdiction of the ICC over a Filipino national may be had when a person has perpetrated the “most serious crimes of concern to the international community as a whole” which includes, but is not limited to, a crime against humanity such as murder under Article 5 of the Rome Statute.

In effect, the ICC is still laden with authority to investigate acts of the Philippines until March 2019, since there was no automatic effective withdrawal when the Philippines deposited its withdrawal in March 2018.  Thus, it only apt to argue that the ‘war on drugs’ campaign under the administration from 2016 to 2019 may be validly investigated under the jurisdiction of the ICC.

In view of Article 15(4) of the Rome Statute, the Pre-Trial Chamber only needs “reasonable basis” to proceed with the investigation as regards the killings committed in the Philippines between  July 1, 2016 to March 16, 2019.

In a report release by the ICC, it stated that the standard of reasonable basis under Article 7(1)(a) of the Rome Statute has been met, in that there is “reasonable basis” to believe that crimes against humanity were committed amid the years-long crackdown on drugs in the Philippines, particularly the crimes against humanity of murder.

Therefore, it is an undisputed fact that the ICC can take cognizance of the case against a Filipino national for the commission of crime against humanity and be held for trial before the Trial Chamber under Article 64 of the Rome Statute.  In this context, the price of greatness is, indeed, responsibility.  It is unusually convenient for our head of state to withdraw from an international commitment and to invoke lack of jurisdiction to that effect, amid the rising public clamor for an investigation on these anomalous killings. Indeed, the Philippines’ withdrawal from the ICC came at the most importune time and was a terrible setback in the long fight against impunity in our country.

Lest we forget, the bereaved families of these victims of the “war on drugs” continue the plea for accountability and justice not just for their families but to protect their countrymen and put an end to the government’s arrogant display of power and show of force. Indeed, the ends do not always justify the means for the means is subject to the scrutiny of accountability and justice. Accountability may be spectral but it stings when it demands the price.

The author is the Founding Partner of A.P Law and a Professorial Lecturer of the USA College of Law