The stance of the Department of Justice, or DoJ, about the International Criminal Court remains unchanged
— that the ICC had lost its jurisdiction over the Philippines following the country's withdrawal as a member state.

DoJ Assistant Secretary and spokesperson Jose Dominic Clavano IV made this clarification yesterday in response to Vice President Sara Duterte's call for the DoJ not to cooperate with the ICC in its investigation into the campaign against illegal drugs during her father's presidency.                

Those who filed complaints before the ICC alleged that the administration of Rodrigo Duterte, from 2016 to 2022, resulted in the killing by the state of 20,000 to 30,000 people in anti-drug operations.

Likewise, the killing of alleged drug suspects by the so-called Davao Death Squad was pinned on Duterte when he was Davao City mayor earlier.

The figures eclipsed the 7,000 drug operation-related deaths the Philippine National Police reported for the entire Duterte presidency.

"I think here, on the part of the DoJ, this is still our stand. The ICC has no jurisdiction over us. But of course, we are open if there is a change in the policy," Clavano said.

He noted that the possibility of the country renewing its ICC membership was far-fetched as there were many legal challenges and issues to be considered.   

"We really need to study all the consequences of returning to the ICC," he said.

Senate concurrence

On Monday, Senator Ronald "Bato" dela Rosa said if President Ferdinand R. Marcos Jr. would decide to lead the country back to the ICC, this move would have to be concurred in by the Senate.

Dela Rosa served as the first Philippine National Police chief under Mr. Duterte in 2016 and oversaw the campaign dubbed "Oplan Tokhang," where cops supposedly knocked on the doors of drug suspects to ask them to surrender.

On 14 March 2018, then-president Duterte announced the Philippines' withdrawal from the ratification of the Rome Statute, a United Nations treaty that created the ICC.

Mr. Duterte cited at the time the ICC's "baseless, unprecedented and outrageous attacks" against him and his administration as the reason for the withdrawal.

The Supreme Court in March 2021 junked petitions seeking to declare null and void Duterte's "unilateral decision" to withdraw the country's recognition of the Rome Statute.

The SC said the judiciary in the Philippines, which it heads, had enough powers to protect human rights and prosecute those who violate them.

Both Mr. Duterte and President Marcos have contended that the justice system in the Philippines is fully working, therefore, the ICC cannot be allowed to adjudicate local issues.

The SC pointed out: "Petitioners insist that the protection of human rights will be weakened, yet their contentions are mere surmises. Ample protection of human rights within the domestic sphere remains formally in place."

The High Court also noted that the ICC's jurisdiction was merely "complementary to national criminal jurisdictions" and could not supplant the latter.

The SC explained that complementarity means that the ICC may only exercise jurisdiction if domestic courts are "unwilling or unable" to prosecute.  

Clavano explained that the possibility of the country renewing its membership in the ICC remains far-fetched amid legal challenges and issues.

On the other hand, Solicitor General Menardo Guevarra explained that non-cooperation with the ICC in its probe against Duterte's drug war and rejoining the ICC were two different things.  

The government, Guevarra said, has no legal duty to cooperate with the ICC in its investigation of the drug war since it can no longer exercise jurisdiction after the country's withdrawal took effect in 2019, or a year after Duterte served notice of the withdrawal.

House resolutions

Recently, resolutions were filed in the House of Representatives calling on the Marcos administration to consider a return to the ICC, to which the President said the matter would be studied.

"The House resolutions encouraging the government to cooperate (with the ICC probe), if adopted, are a non-binding expression of their sentiment only," Guevarra said, adding that rejoining the ICC "is a policy decision that will involve both the executive and legislative branches."   

"This matter needs very serious study because many factors and competing interests need to be considered," he said.

Political observers have opined that the return to the ICC was floated in the House following Mr. Duterte's tirade that it was the most corrupt arm of government.

The former president slammed the House after it denied the Office of the Vice President and the Department of Education, which his daughter also heads, P650 million in confidential funds.

Vice President Duterte and House Speaker Martin Romualdez are seen as strong contenders for the presidency in 2028. The two, however, have denied eyeing the top post.

Meanwhile, Dela Rosa said on Tuesday that the separation of powers between the executive and legislative branches will prevail over the push for the country to cooperate with the ICC.

Dela Rosa made the remarks after opposition Senator Risa Hontiveros filed a resolution urging the government to cooperate with the ICC probe.

Expected

"I expected that from her, that she would file something like that. If we have a Makabayan bloc in the House, we have a Senator Risa Hontiveros in the Senate, so that's as expected," Dela Rosa said.

"I feel bad inside. Of all people, she'd do this," he said, adding that he was taking it personally since he is one of the targets of the ICC probe.

Dela Rosa said he would not campaign against Hontiveros' resolution since he already knows the stand of his Senate colleagues on the matter.

He said that should Hontiveros's resolution gain traction at the committee level, the two pending resolutions against the ICC should also be tackled.

He was referring to Senator Robin Padilla's Senate Resolution 488 seeking "to declare an unequivocal defense of former President Rodrigo Roa Duterte, the 16th President of the Republic of the Philippines, in any investigation or prosecution by the ICC," and Senator Jinggoy Estrada's Senate Resolution 492 expressing strong opposition to the ICC's resumption of its investigation into alleged crimes against humanity related to the Duterte administration's war on drugs.

Hontiveros' Senate Resolution 867 cited Article 172(2) of the Rome Statute, which provides that "withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior."

Dela Rosa believes the Senate won't prioritize Hontiveros's resolution. Likewise, he said, the House would not be able to pressure the President on the ICC issue.

Earlier this week, Marcos said the Philippines' return to the ICC is "under study."

"There is also a question: should we return under the fold of the ICC? So that's again under study. So, we'll just keep looking at it and see what our options are," Marcos said.

But for Dela Rosa, Marcos was being "gentlemanly" about rejoining the ICC.

He said he is holding onto the President's previous statement that the ICC has no jurisdiction over the Philippines.

"He was very consistent that the ICC should not be allowed to enter, and I am holding onto that," he said.

Dela Rosa added that he is not keen on talking with Hontiveros about her resolution.