On jurisdiction of the ICC to prosecute Duterte:

The Duterte administration launched the War on Drugs in 2016 upon the commencement of his term. For
Duterte’s political campaign, it was clear that he wants to eliminate drug use in the country because he
believes that this vice is killing and will kill future generations. Duterte has been very open about his view
on this issue and the campaign was launched through the utilization of the police forces, under the command
of the President. However, it is without a clear regulation on how the program will be operative. Since its
commencement, there were a lot of drug pushers who were arrested as well as drug lords who were mauled.
At present, two years since the time this program was launched, the number of deaths has ranged to 4410
persons (according to the data from the Rise-Up for Life and Human Rights complaint and as claimed by
the government) and 12,000 up to 23,000, allegedly and according to news and media reports.
According to an article from Rappler, people who were killed during the said operations or more commonly
known as Oplan Double Barrel, Oplan Double Barrel Alpha and Reloaded and more famously known to is
Filipinos is of course ‘Oplan Tokhang” were alleged to have retaliated against the police forces who tried
to arrest them. Technically, it has been a justification used by these policemen to qualify that they were in
the performance of their duty and thus, their operations were lawful.
Currently, as the number of persons being killed in the War on Drugs of the administration is still
continuously increasing, families of these victims and alleged drug users and pushers call for justice against
Duterte. They cry out for justice, asking that due process be observed and that the administration should
stop the said operations. Through the Human Rights group, RISE UP FOR LIFE AND FOR RIGHTS, a
number of families whose loved ones were killed due to the war on drugs, seek for justice through a letter
sent to the head of the International Criminal Court asking the said international body to see through the
situation in the country which is dubbed as something alarming already. In this letter, they claim that with
the situation in the Philippines, Duterte is actually committing crimes against humanity, specifically murder
and inhumane acts. Basing the crimes against humanity that was described under the Rome Statute and was
discussed earlier by Sir Red.
The ICC responded in the affirmative and has been doing its own research and scanning of the current plight
of the country and has been open about their concern about this critical national issue. Members of the said
Court have expressed their sentiments and their take on the acts of the President, even statements, and have
given their support to the Rise-Up advocacy against the administration. For these critics, they are convinced
that the Philippines is in a terrible slate with the increasing number of alleged EJK cases and that they shall
act and prosecute Duterte for such. They claim that the ICC has jurisdiction for the “crimes against
humanity” that is seemingly apparent considering all the data gathered through their preliminary
examination and through media reports worldwide.
As a response, the Duterte administration decided to withdraw from the ICC, effective immediately.
However, withdrawal from the ICC only becomes effective one year from receipt of the ICC of the
correspondence stating the withdrawal. Hence, the ICC claims that the acts committed by Duterte, allegedly
crimes against humanity pertaining to the war on drugs, may be a valid cause for the ICC to prosecute the
President and as expected, the administration believes otherwise. The question of the validity of the
jurisdiction of the ICC over the issue and over the person of Duterte is something that us, DDS, believe is
in the negative and no case could prosper against Duterte.
Firstly, there is no criminal offense committed by the President. Simply stated, there is no offense or crime
to even speak of because no one can be punished for doing something that no law prohibits. From the
maxim “nullum crimen sine lege.” The number of persons killed during the war on drugs is increasing in
number but there are no clear evidence which can prove that Duterte is doing mass termination of people
allegedly in the business of doing drugs (also tagged as extra-judicial killings or EJK). The operations of
the police forces are lawful and there had been many who were killed because allegedly, as mentioned
earlier, they did not cooperate when they were summoned by the police and retaliated against the latter
which prompted these policemen to employ force up to the point of killing them.
Secondly, under the principle of Complementarity, as what had been spoken by Harry Roque, there is no
valid ground for the ICC to intervene in the said issue because the Philippines has the capacity to enforce
the laws for those who ought to violate these. The Philippines has its own judiciary and legislature who
have the capacity to enact and apply the laws and to exercise its own jurisdiction over cases filed against it.
We support the administration and it is but dignified for the administration to refuse to accept that the
Philippine courts is unable or is unwilling to exercise jurisdiction as a manifestation of its sovereignty.
Furthermore, the criticisms against the war on drugs and alleged extra-judicial killings remain to be
criticisms which the President has always faced but there was never an admission from the part of the
President nor a concrete proof that he committed any crime.
It is also simply in this context of complementarity which the administration has always sought to
emphasize against the ICC. That upon the ratification of the Rome Statute as part of Philippine laws, there
was a presumption from the part of the Philippine government that this will be respected by the ICC. Thus,
the administration is firm in its decision to withdraw from the ICC because it seems that complementarity
is not being recognized by the ICC. To defer the intervention of the ICC in the issue of the war on drugs
and EJK and what they claim as crimes against humanity is a right that the Duterte administration can do
and shall be respected by the ICC. The palace strongly emphasizes that the Supreme Court of the Philippines
has the credibility still to perform its duties for the benefit of the Filipino citizens.
Third, the ICC has no jurisdiction over the person of Duterte because the Rome Statute cannot be considered
as operative in the Philippines. Domestic laws always prevail over international laws. The Constitution
shall be upheld and remains supreme over the latter. Yes, the Philippines adopts the generally accepted
principles of international law as part of the laws of the land by principle of incorporation. However, this
is not absolute. Aside from the issue that the said statute was not published, there was no enactment from
the legislature making the said law as a valid one. The constitution provides that for an international
agreement to be operative in the country, there must be a concurrence of 2/3 of the members of the Senate
under the principle of transformation. Hence, in the absence of this, the ICC clearly has no jurisdiction over
the Philippines and over the person of Duterte.