Blatant Hague interference

The argument that the International Criminal Court’s (ICC) intrusion in domestic affairs has gained strength with the recent disclosure of the names of alleged co-perpetrators, a move that placed pressure on two senators, is a consequential development for the Marcos administration, given the Senate’s unpredictability.

The release of the tribunal’s Document Containing the Charges (DCC), which revealed the previously redacted names, was seen as an attempt to sideline Senators Ronald “Bato” dela Rosa and Christopher “Bong” Go, whose political standing is critical to the chamber’s balance of power.

The ICC lacks jurisdiction and violates international law while being enabled by the Marcos administration for political motives.

The ICC is facing a strong challenge from the defense team of detained former president Rodrigo Duterte, which contends that the court has no legal authority to prosecute Philippine officials following the country’s withdrawal from the Rome Statute in 2019.

The Philippines ratified the Statute in 2011 but formally withdrew on 17 March 2018, with the withdrawal taking effect one year later.

Despite the ICC insisting that it retained jurisdiction over the country, particularly during the period it was still a signatory to the Rome Statute, the timeline is critical, as the alleged crimes happened during Duterte’s terms as Davao City mayor and later as president.

Under the Rome Statute, a withdrawal takes effect one year after notification, while Article 127(2) states that it “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State has a duty to cooperate and which were commenced before the date on which the withdrawal became effective.”

Critics, however, argue that the provision does not extend to full investigations authorized after withdrawal.

The ICC’s Pre-Trial Chamber (PTC) authorized a formal investigation on 15 September 2021, over two years after withdrawal.

International law experts asserted that jurisdiction “has been forfeited” because the ICC Prosecutor failed to seek authorization from the PTC while the Philippines was still a member state, effectively lapsing the Court’s authority.

The view aligns with dissenting opinions from ICC Judges Marc Perrin de Brichambaut and Gocha Lordkipanidze in a 2023 decision, who argued the Court cannot exercise jurisdiction over the “Philippine situation” post-withdrawal, as the law’s preconditions must exist at the time of exercising jurisdiction, not just when the crimes occurred.

The Supreme Court, in a ruling, indicated that withdrawal does not retroactively erase obligations for crimes committed during membership, but emphasized that the country is no longer bound to enforce ICC decisions post-withdrawal.

Duterte’s legal team has challenged the ICC’s jurisdiction under Article 19(2) of the Statute, arguing that the preliminary examination (initiated in 2018) does not qualify as a “matter under consideration” by the Court proper, excluding the Prosecutor from unilaterally extending jurisdiction.

Partido Demokratiko Pilipino (PDP) deputy spokesperson Ferdinand Topacio cited an “evident lack of jurisdiction,” as the ICC’s actions post-2019 are seen as an overreach without consent, which means the ICC is selectively interpreting its Statute to target non-Western leaders, contravening principles of state sovereignty under the UN Charter.

The PDP labeled the ICC’s actions as “non-stop transgressions” into sovereignty, arguing they undermine the will of the Filipino electorate who elected Duterte, Dela Rosa, and Go. This echoes the broader criticism of the ICC as a tool of neo-colonial interference.

The principle of sovereign equality prohibits external interference in domestic affairs, while the concept of complementarity in the Statute requires the ICC to exercise jurisdiction only when national courts are unwilling or unable to investigate or prosecute crimes genuinely.

The functioning judiciary, with ongoing probes into extrajudicial killings through the Department of Justice and the Supreme Court, is invoking the complementarity principle, where the ICC should defer to national proceedings.

This principle, embedded in the ICC’s founding treaty, defines the tribunal as a court of last resort to ensure accountability for serious international crimes like genocide, war crimes and crimes against humanity, while respecting a state’s sovereignty.

The Philippines’ withdrawal was a sovereign act, and enforcing ICC warrants without its consent violates this principle.

The ICC was also suspected of conspiring with the government to turn Duterte and his allies into scapegoats, diverting attention away from the massive raid on the Treasury through the budget manipulations.