Over his dead body

“Hindi ako papahuli ng buhay sa ICC. I’m already 80. OK na ako.” So said the still-popular Rodrigo Duterte, who has unflinchingly faced and cheated death many times over. In our recent phone conversation, the former president divulged that the International Criminal Court will issue a warrant for his arrest anytime soon. As he has consistently vowed, Tatay Digong would only face charges related to the war on drugs campaign filed before the Philippine courts. He would seek death rather than have the foreign tribunal, with the complicity of local law enforcers, drag him to The Hague court.

First, it would constitute an illegal arrest. The ICC lost its jurisdiction over the drug war because the Philippines is no longer a State Party to the Rome Statute. The Court Prosecutor failed to trigger the Court’s jurisdiction before our withdrawal became effective on March 17, 2019. As contended by two Appellate Chamber judges, the Prosecutor can no longer open a preliminary investigation once the State’s withdrawal officially took effect.

Second, the octogenarian has lived – and continues to live – a full life. He has nothing to fear or lose at this point.

When I asked for his intel source, FPRRD refused to reveal it on the phone. Obviously, some groups are monitoring his activities. I do not doubt the veracity of the information since the former chief executive still has access to various intelligence reports. It also coincides with the story peddled by an anti-Duterte politician and a supposed complainant in the war on drugs case that the ICC would request the Philippine government for Digong’s arrest soon.

The Rome Statute states that once the Pre-Trial Chamber (PTC) determines probable cause, it can issue a warrant or summons for an accused to ensure the person’s appearance in the trial; the person does not obstruct the investigation or court proceedings; and prevent the person from continuing the commission of the crime (Article 58, Section 1).

I am grateful that the Philippine National Police (PNP) has stated they would not serve an arrest warrant to FPRRD according to the wishes of the ICC. This complies with the verbal directive of President Bongbong Marcos, Jr. to all Executive agencies to desist from cooperating with the ICC. On the other hand, I am disappointed that Solicitor General Menardo Guevarra thinks there is no need for a memorandum circular vis-à-vis the issue. With due respect to my fellow cabinet member under the Duterte administration, I believe that a verbal order carries less legal force. It can easily be superseded by another public pronouncement. I recall that in November, the Chief Executive suddenly backtracked from his original position of non-engagement with the ICC since assuming office in 2022. Thankfully, PBBM clarified last month that the government will not lift a finger to help the Court investigation.

Under the best evidence rule, when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original written document itself. Under any circumstance, a presidential issuance would compel government agencies, including the Armed Forces of the Philippines and the National Bureau of Investigation, to disengage from an ICC-related proceeding.

Investigation & arrest

In terms of a preliminary investigation, the ICC process differs from our local courts. In the Philippines, the investigation is considered a statutory right. Under the Revised Rules on Criminal Procedure, the accused has the right to participate in the probe and to examine the evidence submitted by the plaintiff. If the evidence is voluminous, the complainant must specify the evidence that will be used against the respondent. Upon receipt of the subpoena, the accused should file a counter-affidavit and that of his or her witnesses and other supporting documents within ten days.

In contrast, the ICC follows the European inquisitorial justice system, which prioritizes the expeditious resolution of a criminal case. The international Prosecutors can directly gather and collect evidence to buttress their case against suspected individuals who may have committed an atrocity crime within the Court’s jurisdiction. They have the sole right to examine evidence and keep documents or information confidential. They have the prerogative to request the presence of persons under investigation, victims, and witnesses. Should they decide that the evidence at hand is sufficient, they may even forego directly questioning a person under investigation. They are also not obligated to notify individuals who will be charged before the Pre-Trial Chamber.

Nonetheless, the Prosecutors are mandated to impartially and equally assess both incriminating and exonerating evidence when determining the criminal responsibility of an individual.

Persons under investigation, meanwhile, are not entitled to file a counter-affidavit. They are not allowed to access the evidence presented by accusers. However, the Statute protects their right against self-incrimination and the right to legal representation (Article 55). They cannot be subjected to any form of duress like torture, or questioned in a language that they cannot fully understand and speak. While being investigated, they cannot be arbitrarily arrested or detained except on grounds established in the Statute. Prosecutors or national authorities requested by the Court shall extend the same rights to persons believed to have committed a crime within the jurisdiction of the Court.

Once the Pre-Trial Chamber decides favorably on the application and evidence submitted by the Prosecutor, it will issue an arrest warrant for the accused. Since the ICC does not have a police force, they must entirely rely on the law enforcement agencies of a State Party. Article 59 stipulates that upon receipt of a request for provisional arrest or arrest and surrender, a member country must immediately apprehend the person according to its laws and the provisions of Part 9 (of the Statute).

If we apply it to the Philippine situation, the ICC request will go through the foreign affairs and justice departments. The latter agency will then cascade the arrest order to the PNP or NBI. They may even seek the help of the AFP. Can the ICC immediately and forcibly bring FPRRD to The Hague? The answer is no. The former president has the right to apply to the competent authority in the custodial State for interim release pending surrender (Article 59). The competent authority shall consider whether there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfill its duty to surrender the person to the Court. Tatay Digong can also petition the Supreme Court for a writ of habeas corpus.