Nil ICC obligation
The ICC has no enforceable jurisdictional claim over Filipino nationals that the Philippine state is domestically obligated to honor.
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Daily TribuneThe ICC has no enforceable jurisdictional claim over Filipino nationals that the Philippine state is domestically obligated to honor.
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During the 2018 oral arguments on the challenges to the Philippines’ unilateral withdrawal from the Rome Statute of the International Criminal Court (ICC), Associate Justice Marvic Leonen made pointed observations that cut to the heart of a question now central to the unfolding drama: the enforcement of the tribunal’s warrant of arrest.
In his exchange with the petitioners, Leonen queried, “The House and the Senate did not produce the obligation on the part of the President to follow the rules on complementarity, gravity, Office of the Prosecutor and the International Criminal Court, correct?”
When the counsel argued that Section 15 of RA 9851, referencing international law for interpretation, effectively incorporated the Rome Statute, Leonen flatly rejected this, saying, “Interpretation of the Act, which means the text must already be there. Where is the text that actually says that it recognizes or allows the President to add another court?”
RA 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, incorporates international humanitarian and criminal laws into the Philippine legal system.
The argument was that Section 15 implicitly authorized the full machinery of the Rome Statute, including the ICC as an institution.
Leonen demolished this by pointing out that an interpretative provision cannot be taken as a substantive procedural text that was never legislated.
If the surrender and arrest procedures are not in the text of RA 9851, Section 15 cannot create them. An ICC arrest warrant, therefore, cannot find its legal basis in Section 15 of the law, Leonen explained.
A legal ace said that if Leonen’s stand is applied to the current pending petitions before the Supreme Court, it would have a legally consequential conclusion: the ICC has no enforceable jurisdictional claim over Filipino nationals that the Philippine state is domestically obligated to honor.
The arrest warrant mechanism of the Rome Statute is precisely the kind of procedural apparatus that Congress never incorporated into the law, thereby making it, by Leonen’s logic, a legal nullity insofar as domestic obligations are concerned.
Since RA 9851 codified only the substantive crimes and not the ICC’s procedural framework, including surrender procedures under the Rome Statute, there is no Philippine law that compels the executive to honor an ICC arrest warrant.
A surrender would require affirmative domestic legal authority, which, under Leonen’s reading, does not exist.
Thus, the deeper implication of Leonen’s argument is that compliance with an ICC arrest warrant is a matter of executive political discretion rather than a legal obligation.
“The President may choose to cooperate, as a matter of foreign policy, diplomatic goodwill, or political will, but cannot be compelled to do so by any domestic court, because no domestic law creates that compulsion,” the veteran lawyer indicated.
A president who wishes to surrender a national to the ICC has no clear legal authority to do so, and a president who refuses to do so cannot be said to be violating Philippine law.
Leonen’s argument, in effect, means that an ICC arrest warrant against a Filipino national is, from the perspective of domestic law, an external demand with no internal legal force.
The ICC may have international legal authority and the moral weight of the international community behind it, but within the Philippine constitutional order, as Leonen defined it, there is no statute that bridges the gap between the international warrant and a lawful domestic arrest and surrender.
Enforcing an ICC warrant would require new legislation, a deliberate, explicit act of Congress, not a treaty the Philippines has already renounced.
