19mar21-Duterte to escape ICC examination?
POSTSCRIPT / March 21, 2019 / Thursday
Duterte to escape ICC examination?
THE INTERNATIONAL Criminal Court in The Hague is not going after the Philippine government, but after President Duterte and possibly other individuals accused of having acted on his behalf in perpetrating alleged crimes against humanity.
The court is not yet into what we know as preliminary investigation. It is still examining multiple complaints and evidence of alleged extrajudicial killing of thousands of Filipinos mostly related to Duterte’s bloody drug war.
In a preemptive move, Duterte has pulled out the country from the Rome Statute that created the ICC in 2002. He barred the entry of ICC prosecutors looking into complaints that he and others identified with him have executed thousands of suspects without due process.
Upon his instructions, the Philippines withdrew last Sunday, or one year after formal notice, from the international court created to try individuals accused of genocide, crimes against humanity, war crimes, and aggression.
Duterte gave as reasons for his move the “outrageous” attacks on him and his administration and the supposedly illegal attempt by ICC Prosecutor Fatou Bensouda to place him under the jurisdiction of the court.
His evasive maneuver may save him — but deprive future victims of wholesale butchery of a recourse to an outside forum if domestic courts are found wanting. After Duterte’s pullout, the ICC will cease to take cognizance of complaints of atrocities in the Philippines.
The ICC is a complementary tribunal where victims can run for relief if the local justice system is unwilling or unable to act adequately on complaints against genocide, widespread violence and violation of human rights.
After Duterte’s running away from the ICC, it could happen that a succeeding president would do an about-face and reinstate Philippine membership in the tribunal with the concurrence of the Senate.
The question has arisen over whether the personal interests of a president hounded by accusations of human rights violations and EJKs should be allowed to influence policy or override national interest in relation to the international community.
Another question is whether a unilateral instruction of a president protecting his self interest is enough to nullify a state’s treaty commitments or withdraw the country from an international agreement concurred in by the Senate.
The Philippines became ICC’s 117th member in 2011 not by the solitary act of the sitting President but with Senate concurrence, as required by Section 21, Article VII, of the Constitution: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”
The Philippines’ leaving the international court this month, however, was done only on instructions of President Duterte without so much as a by-your-leave or the concurring vote of at least two-thirds of the Senate.
But to ICC prosecutor Bensouda, the withdrawal does not mean that the examination into President Duterte’s anti-drug crackdown has ended. She said: “My office’s independent and impartial preliminary examination into the situation in the Philippines continues.”
According to her, the court continues to have jurisdiction over the alleged crime against humanity committed from Nov. 1, 2011, to March 16, 2019 – the period when the Philippines was a state party to the Statute.
She said: “Pursuant to Article 127.2 of the Statute and based on prior ICC judicial ruling in the situation in Burundi, the Court retains its jurisdiction over crimes committed during the time in which the State was party to the Statute and may exercise this jurisdiction even after the withdrawal becomes effective.” (Burundi is the only other state that has withdrawn from the ICC.)
It is sad to note that the Philippines was active in the drafting of the Statute in the Rome conference in 1998, signing it in 2010 and ratifying it the year after – only to abandon it in a messy divorce under Duterte eight years later.
Malacañang warned that ICC personnel who come to investigate will be barred. It pointed out that the Philippines has never been a party to the Rome Statute since the treaty was not published in the Official Gazette or a newspaper of general circulation as is done with a regular law.
If this belated argument based on non-publication is accepted, what is everybody talking about since there is supposedly no binding treaty to discuss? And why is the Philippines withdrawing from the ICC if it has never been a member?
But the Supreme Court said in a ruling in 2005 on the same Rome Statute that publication was not among the steps in the treaty-making process that includes only negotiation, signing, ratification, and exchange of instruments of ratification.
• Pope names Lingayen auxiliary bishop
POPE Francis has appointed as auxiliary bishop of the archdiocese of Lingayen-Dagupan, the Rev. Fidelis B. Layog of the same archdiocese, currently parish priest of the Our Lady of Purification Parish, assigning him the titular see of Giro di Tarasio.
Bishop-elect Layog was born Nov. 20, 1968, in Dagupan. After elementary and secondary schooling, he studied philosophy at the “Mary Help of Christians” High School seminary in Dagupan City and theology at the “Immaculate Conception” School of Theology in Vigan City. Between 2000 and 2003 he attended the Pontifical University of Saint Thomas in Rome, where he studied biblical theology.
After being ordained on April 29, 1996, for the archdiocese of Lingayen-Dagupan, he spent the first four years of his priesthood as prefect of discipline at the “Mary Help of Christians” High School seminary in Dagupan City.
Returning to his diocese after his studies in Rome, he served as moderator of the Holy Family parish team ministry in Pangasinan (2006-2009); moderator of the team ministry of the Saints Peter and Paul parish and vicar forane (2011-2014); and director of Mapandan Catholic School (2014-2016). Since 2017 he has served as pastor and moderator of the team ministry of the “Our Lady of Purification” parish and director of the Saint Columban Institute of Domalandan in Lingayen, Pangasinan.
(First published in the Philippine STAR of March 21, 2019. Follow the author on Twitter as @FDPascual.)
* * *