"The ICC and the Duterte Case: A Jurisdictional Analysis
By:
Google Gemini AI app
April 2, 2025
Introduction
The question of the International Criminal Court’s (ICC) jurisdiction over the alleged crimes against humanity committed during Rodrigo Duterte's presidency remains a contentious legal issue in the Philippines. This essay examines the legal arguments surrounding the ICC’s jurisdiction, focusing on Philippine law and jurisprudence, most notably the landmark case of Pangilinan v. Cayetano, alongside relevant international legal principles.
The ICC's Jurisdiction: Principles and Parameters
The ICC’s jurisdiction is primarily governed by the Rome Statute. Article 12 of the Rome Statute establishes the preconditions for the exercise of jurisdiction. The ICC can exercise jurisdiction if:
* The State on the territory of which the crime occurred is a State Party; or
* The State of the nationality of the accused is a State Party; or
* A situation is referred to the ICC by the United Nations Security Council.
The Philippines was a State Party to the Rome Statute. However, on March 17, 2018, the Philippines notified the UN Secretary-General of its withdrawal, which took effect on March 17, 2019.
The Withdrawal Issue: Retroactive Effect?
A crucial point of contention is whether the withdrawal affects the ICC’s jurisdiction over crimes committed before the withdrawal took effect. Article 127(2) of the Rome Statute states that a withdrawal "shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate which were commenced prior to the date on which the withdrawal became effective."
The ICC Pre-Trial Chamber I has ruled that it retains jurisdiction over the situation in the Philippines because the alleged crimes occurred while the Philippines was a State Party. This ruling is based on the principle that the ICC's jurisdiction is triggered by the commission of the crime, not by the state's continued membership.
Pangilinan v. Cayetano: A Crucial Precedent
In Pangilinan v. Cayetano (G.R. Nos. 238875, 239483, 240054, and 240060, promulgated on March 16, 2021), the Philippine Supreme Court addressed the issue of the Philippines’ withdrawal from the Rome Statute. The Court held that the withdrawal did not discharge the Philippines from its obligations under the Rome Statute with respect to crimes committed while it was a State Party.
Key points from the Pangilinan ruling:
* The Court emphasized the principle of pacta sunt servanda (agreements must be kept), a fundamental principle of international law.
* It affirmed that the Philippines remained obligated to cooperate with the ICC regarding investigations and proceedings initiated before the withdrawal became effective.
* The Court recognized the ICC’s jurisdiction over crimes committed during the Philippines’ membership, even after its withdrawal.
* The court stated that the withdrawal could not be applied retroactively to negate the legal consequences of actions that took place while the Philippines was a member state.
This decision significantly reinforces the ICC’s position and strengthens the legal basis for its continued investigation.
Philippine Jurisprudence and Sovereignty
Philippine legal arguments against the ICC’s jurisdiction often invoke the principle of sovereignty. The 1987 Philippine Constitution emphasizes the country's sovereignty and independence. However, sovereignty is not absolute.
As the Supreme Court has recognized, the Philippines is bound by generally accepted principles of international law as part of the law of the land (e.g., Pharmaceutical and Health Care Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007).
The concept of complementarity is also relevant. The ICC’s jurisdiction is complementary to national criminal jurisdictions. This means that the ICC can only exercise jurisdiction if national courts are unwilling or genuinely unable to investigate and prosecute the crimes.
Domestic Legal Remedies and the ICC's Complementarity
The Philippine government argues that domestic remedies are available, and the ICC should defer to national courts. However, the ICC has determined that the Philippine government's efforts have not been sufficient to address the alleged crimes.
Philippine jurisprudence on the availability of domestic remedies is rooted in the principles of due process and equal protection. The Supreme Court has repeatedly emphasized the importance of effective and impartial investigations and prosecutions (e.g., People v. Webb, G.R. No. 132577, July 17, 2003). However, the ICC has found that the national mechanisms have not been sufficient to address the crimes in question.
American Legal Precedents and Principles
While primarily focusing on Philippine law, American legal precedents offer insights into similar jurisdictional issues. The Sosa v. Alvarez-Machain (542 U.S. 692, 2004) case highlights the Alien Tort Statute and its application to international law violations. The US Supreme Court has also dealt with issues of international criminal jurisdiction in cases like Kiobel v. Royal Dutch Petroleum Co. (569 U.S. 108, 2013), which narrowed the scope of extraterritorial application of US laws.
These cases, though from a different jurisdiction, emphasize the complexities of international law and its interaction with domestic legal systems.
Legal and Academic Discourse
Legal scholars and commentators in the Philippines have extensively discussed the ICC issue. Academic journals like the Philippine Law Journal and publications from the University of the Philippines College of Law have featured articles analyzing the legal implications of the ICC’s involvement, especially after the Pangilinan v Cayetano decision.
Legal columns in newspapers such as the Philippine Daily Inquirer and The Manila Times, along with legal blogs, have also contributed to the public discourse. Mainstream media reports have kept the issue in the public eye, highlighting the ongoing debate.
Legislative and Political Implications
The ICC issue, especially in light of the Pangilinan v. Cayetano ruling, has significant legislative and political implications. It reinforces the importance of upholding international obligations and the limitations of unilateral withdrawal from international treaties. Legislators and politicians must consider the legal and political consequences of the Philippines’ actions.
The issue also impacts the perception of the Philippine justice system. It raises concerns about the country's commitment to human rights and the rule of law.
Conclusion
The ICC’s jurisdiction over the Duterte case, as affirmed by the Philippine Supreme Court in Pangilinan v. Cayetano, is a complex legal issue with significant implications for the Philippines. While the Philippine government asserts its sovereignty and the availability of domestic remedies, the ICC maintains that it has jurisdiction based on the Rome Statute and the principle of complementarity.
The Pangilinan case reinforces the principle of pacta sunt servanda and clarifies the legal obligations of the Philippines despite its withdrawal. The debate highlights the ongoing tension between national sovereignty and international legal obligations. It also underscores the importance of a robust and impartial justice system in upholding human rights and the rule of law. For the Filipino legal sector, this case provides a critical opportunity to examine and refine the nation's engagement with international criminal law.
The ongoing ICC investigation is a critical test of the international justice system and the Philippines' commitment to addressing serious human rights violations."
References:
https://www.icc-cpi.int/about/how-the-court-works?hl=en-PH
https://www.ohchr.org/en/instruments-mechanisms/instruments/rome-statute-international-criminal-court?hl=en-PH
https://www.icc-cpi.int/philippines?hl=en-PH#:~:text=The%20Philippines%2C%20State%20party%20to,Statute%20on%2017%20March%202018.
https://www.icc-cpi.int/news/icc-pre-trial-chamber-i-authorises-prosecutor-resume-investigation-philippines?hl=en-PH#:~:text=While%20the%20Philippines'%20withdrawal%20from,alleged%20crimes%20that%20occurred%20on."
