Cites ‘firm position’ on ICC jurisdiction over PH

Solicitor General Menardo Guevarra has declined to represent state agencies in petitions for habeas corpus filed by the children of former President Rodrigo Duterte that question the actions of government officials that led to the latter’s arrest and transfer to The Hague.

In his manifestation of recusal received by the Supreme Court Monday afternoon, Guevarra said: “Considering the OSG’s firm position that the ICC is barred from exercising jurisdiction over the Philippines and that the country’s investigative, prosecutorial, and judicial system is functioning as it should, the OSG may not be able to effectively represent Respondents in these cases and is constrained to recuse itself from participating therein.”

It was Duterte’s former chief legal counsel, Salvador Panelo, who first posted a copy of the six-page manifestation on social media.

Panelo said Guevarra’s move implied the surrender of Duterte to Interpol based on an ICC warrant was illegal and unconstitutional.

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“It’s an admission that the ICC has no jurisdiction over the Philippines coming from the government’s lawyer,” Panelo said.

Former Associate Justice Antonio Carpio, however, remided Guevarra that the Supreme Court has already ruled on the issue of ICC jurisdiction.

“The Supreme Court has already unanimously ruled that the ICC retains jurisdiction over offenses committed while the Philippines was still a member of the Rome Statute. The SolGen cannot simply gloss over this unanimous decision of the Supreme Court,” Carpio said.

“He (Guevarra) could also have cited RA 9851 (An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity) which allows the government to surrender Duterte to the ICC even if the Philippines has withdrawn from the Rome Statute,” he added.

“Mechanisms that safeguard human rights and protect against grave offenses sought to be addressed by the Rome Statute remain formally in place in this jurisdiction. Further, the International Criminal Court retains jurisdiction over any and all acts committed by government actors until March 17, 2019. Hence, withdrawal from the Rome Statute does not affect the liabilities of individuals charged before the International Criminal Court for acts committed up to this date,” the High Court ruled in March 2021.

Duterte withdrew the Philippines from the ICC in 2019, following the court’s move to investigate alleged extrajudicial killings linked to his anti-drug campaign.

In its arrest warrant, the ICC said there were “reasonable grounds to believe” at least 19 people had been murdered in the city by members of the “Davao Death Squad” headed by Duterte.

Additionally, based on the warrant, at least 24 people were killed by Philippines police in various locations.

As this developed, Carpio and former ICC judge Raul Pangalangan said the circumstances surrounding the arrest of any suspect wanted by international courts have no bearing on jurisdiction.

“In the history of international criminal law, the biggest cases in this field have not inquired into the legality of the manner by which the accused is brought before the tribunal,” said Pangalangan, now a member of the Permanent Court of Arbitration in The Hague.

He cited Adolf Eichmann, who was “basically kidnapped” from Latin America and brought to Israel to be tried for the crimes committed in WWII.

“The court basically said: We have jurisdiction over the crime charged, material jurisdiction – jurisdiction over the person accused,” Pangalangan said.

Carpio said Duterte’s lawyers may question the ICC ‘s jurisdiction but he expressed doubt that such a move would prosper.

“Whether the arrest is illegal or not, it will not deprive the ICC of jurisdiction to hear and decide on the complaint against former president Duterte,” he said.

“The rule in the ICC is very clear. Even if you are illegally arrested by the surrendering state, the ICC will still acquire jurisdiction of you when you are handed over to the ICC because the ICC has nothing to do with the illegal arrest that was done by the surrendering state,” Carpio added.

On Friday, during Duterte’s first appearance via video conferencing before the ICC pre-trial chamber, his counsel Salvador Medialdea insisted that his client was “kidnapped.”

“He was summarily transported to The Hague. To lawyers it’s extrajudicial rendition. For less legal minds it’s pure and simple kidnapping,” Medialdea said.

ICC Presiding Judge Iulia Motoc, however, said: “There will be a full procedure that will unfurl leading up to the confirmation of charges that will enable Mr. Duterte to raise all the matters that you have just raised with regard to the warrant of arrest, with regard to the crimes committed, with regard to the charges and any other matters associated with his arrest and the matters of jurisdiction of the court.”

Meanwhile, Malacañang on Monday said personal debts of gratitude or “utang na loob” should not interfere with upholding laws and international commitments.

Presidential Communications Office Undersecretary Claire Castro made the remark after Davao City Mayor Sebastian Duterte accused President Ferdinand Marcos Jr. of ingratitude.

Castro said the Marcos family has already expressed their appreciation in 2016 for the burial of their patriarch, the late president Ferdinand Marcos Sr., at the Libingan ng mga Bayani, which was facilitated under Duterte’s presidency.

Castro said while gratitude is important, it should not obstruct the implementation of justice and legal obligations.

“Gratitude should not derail or betray the law and justice,” she said.