‘ICC lacks jurisdiction’: Osg recuses itself from SC case

In a surprising move, the Office of the Solicitor General (OSG) announced on Monday that it was recusing itself from the case concerning the arrest of former President Rodrigo Duterte where it should be representing the government officials involved.

Solicitor General Menardo Guevarra made the decision in light of Duterte’s handover to the International Criminal Court (ICC) for alleged crimes against humanity during his controversial anti-drug war.

In a nine-page Manifestation and Motion submitted to the Supreme Court, Guevarra said the OSG could no longer represent government officials, including Executive Secretary Lucas Bersamin, Interior Secretary Jonvic Remulla, and PNP Chief Gen. Francisco Marbil, who are named in the consolidated petitions for habeas corpus filed by Duterte’s children — Davao Rep. Paolo Duterte, Davao City Mayor Sebastian Duterte, and Veronica Duterte — after their father’s arrest by the Philippine National Police (PNP) on an ICC-issued warrant.

The manifestation conflicts with President Ferdinand Marcos Jr.’s position that allowed the arrest and transfer of Duterte to the custody of the ICC in The Hague, the Netherlands.

The OSG had consistently rejected the ICC’s jurisdiction over the Philippines following the country’s withdrawal from the Rome Statute in 2019.

Guevarra underscored that the Philippine government has no legal obligation to cooperate with the ICC, emphasizing that the country’s justice system was fully capable of handling any legal charges against Duterte.

The OSG’s motion stated that it could no longer effectively represent the respondents due to its unwavering stance against the ICC’s authority.

The motion further stated that the country’s justice system, functioning independently, does not require foreign intervention, which aligns with the government’s stance that the ICC has no legal right to involve itself in Philippine affairs.

Guevarra added that the OSG’s recusal would ensure that its participation would not hinder the legal process given its firm opposition to the ICC’s jurisdiction.

The consolidated petitions filed by Duterte’s children seek an order to the government officials to produce Duterte and explain why he should not be released from the ICC’s custody.

The petitioners argued that Duterte’s arrest and transfer violated Philippine sovereignty, especially since the country had withdrawn from the Rome Statute. They also contended that crimes against humanity could be prosecuted in domestic courts under Republic Act 9851 which grants Philippine courts jurisdiction over such crimes.

Furthermore, they claimed, Duterte was denied proper medical care despite requests made.

The OSG’s motion stated that it could no longer effectively represent the respondents due to its unwavering stance against the ICC’s authority.

The OSG’s withdrawal deepens the ongoing legal and political dispute over the ICC’s jurisdiction in the Philippines.

The move has generated mixed reactions.

Former presidential spokesperson Salvador Panelo argued that the OSG’s recusal implied that Duterte’s arrest under the ICC warrant was illegal and unconstitutional.

Panelo suggested that the move was an implicit acknowledgment that the ICC has no jurisdiction over the Philippines.

Meanwhile, prominent legal figures, including lawyer Ferdinand Topacio, praised the OSG’s decision as a principled stand.

Topacio emphasized that international arrest warrants were not automatically enforceable, pointing out that such warrants must comply with local laws.

“There is no such thing as an international arrest warrant enforceable in and by itself,” Topacio said, referring to Section 17 of RA 9851, which he argued is discretionary, not mandatory. He also reminded critics that the Philippine Constitution guarantees that no one can be arrested without a warrant issued by a local court after determining probable cause.