A day of reckoning for Duterte et al.

“The day of reckoning is coming for Duterte and others.”

On March 5, 2018, the Duterte government announced its withdrawal from the International Criminal Court.

On March 16, 2018, it formally submitted its Notice of Withdrawal through a Note Verbale to the United Nations Secretary-General’s Chef de Cabinet.

These prompted the filing of petitions questioning the ICC withdrawal before the Supreme Court, saying it cannot be done without the Senate’s concurrence.

In a unanimous decision penned by Associate Justice Marvic M.V.F. Leonen, the Supreme Court dismissed the Petitions but acknowledged the President is the primary architect of foreign policy, his authority is subject to the Constitution and existing statute.

The power of the President to withdraw unilaterally can be limited by the conditions for concurrence by the Senate or when there is an existing law that authorizes the negotiation of a treaty or international agreement or when there is a statute that implements an existing treaty.

Hence, the President’s discretion on unilaterally withdrawing from any treaty or international agreement is not absolute.

The Court outlined the instances when the president may not unilaterally withdraw from a treaty, thus: (a) when the Senate conditionally concurs, such that it requires concurrence also to withdraw; or (b) when the withdrawal itself will be contrary to a statute, or to a legislative authority to negotiate and enter into a treaty, or an existing law which implements a treaty.

In this case, President Duterte validly withdrew the Philippines from the Rome Statute.

However the Court was quite clear that we are bound by the terms of this treaty.

This means crimes committed between 2011 when we became a member and 2018 when the notice of withdrawal was submitted are still within the jurisdiction of the ICC.

These include extrajudicial killings from the time Rodrigo Duterte was still Mayor of Davao to the first two years of his presidency.

In an International Criminal Court case, judgment and sentence are rendered after the prosecution as well as defense have made their closing arguments.

After which, the judges may decide to find the accused guilty or not guilty.

The reading of the sentence is done publicly and, wherever possible, in the presence of the accused, and victims or their legal representatives, if they have taken part in the proceedings.

Imposable penalties include a prison sentence, to which may be added a fine or forfeiture of the proceeds, property and assets derived directly or indirectly from the crime committed.

No death sentence may be imposed, with the maximum sentence of imprisonment up to 30 years.

However, in extreme and extraordinarily heinous crimes, a term of life imprisonment may be imposed.

Service of sentence may be done in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept convicted persons.

Trials proper take place at the seat of the Court in The Hague, unless otherwise decided by the judges to hold the trial in some other venue.

The presence of the accused at his or her trial is a must.

A Public trial will be held unless a closed session is held for the protection and safety of victims and witnesses or the confidentiality of sensitive evidentiary material.

The ICC, having no police force of its own, relies on State cooperation, which is essential to the arrest and surrender of suspects.

As such, States Parties, which are signatories to the Rome Statute, are duty-bound to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

Warrants of arrest may be enforced by the States. hence, while the Court functions as the judicial pillar, the operational pillar belongs to States, including the enforcement of the Court’s orders.

It is for this reason the cooperation by the Marcos government in the probe as well as the enforcement of the ICC orders is of utmost importance.

Families of victims of extra-judicial killings under the previous administration have long waited for justice.

Instead of stonewalling and obstructionism, Marcos must cooperate and hold the perpetrators to justice.

Marcos must order all enforcement agencies to facilitate the probe instead of merely paying lip service to transparency and human rights.

The chief prosecutor of the International Criminal Court earlier suspended a probe at the request of the Philippine government.

Unfortunately, we did not make use of that time to investigate in earnest the crimes against humanity committed in the course of the war against drugs.

Clearly, no progress was made even in the ordinary investigation of killings committed by police forces in the course of drug operations.

Such killings can never be justified under the doctrine of presumption of regularity.

Any killing is irregular and must be investigated before it is categorized as legally in pursuit of mission.

Incidentally, the accountability for this failure lies squarely on the police and the prosecution service.

There is no failure of the judiciary here as our judges were never given a chance—not by the ICC but by our law enforcers and prosecutors.

The day of reckoning is coming for Duterte and others.

Crimes against humanity, especially your fellow Filipinos, cannot be just forgotten and set aside.

Thankfully, the ICC will fill the void that our law enforcers have not filled.

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