The Hague must wait
Allowing the Executive to implement an ICC warrant without domestic authority, a local surrender law, or a treaty obligation in force would, Rosario argued, intrude on Philippine sovereignty and public order.
Daily TribuneAllowing the Executive to implement an ICC warrant without domestic authority, a local surrender law, or a treaty obligation in force would, Rosario argued, intrude on Philippine sovereignty and public order.
Allowing the International Criminal Court (ICC) to have its way in the country, abetted by partisan politics, may undermine the primacy not only of the courts but also of the Constitution in matters of the arrest and liberty of Filipino citizens.
Associate Justice Ricardo Rosario’s dissent in the denial of the petition for a stay order on the ICC arrest warrant issued against Senator Ronald “Bato” dela Rosa and questioning President Rodrigo Duterte’s surrender to the ICC made compelling points about sovereignty.
Allowing the Executive to implement an ICC warrant without domestic authority, a local surrender law, or a treaty obligation in force would, Rosario argued, intrude on Philippine sovereignty and public order.
His position is not that the accused should escape accountability, but that accountability must first flow through the Philippine Constitution and courts, consistent with the complementarity as envisioned by the Rome Statute, the international treaty that founded the ICC.
Rosario underscored the constitutional order that determines who has authority to arrest Filipino citizens, under what conditions and by what process.
His dissent centered on the ICC’s function as a court of last resort, not a court of first instance, and on the fact that its intervention is justified only when a nation’s justice system has failed.
Since the country has a functioning judiciary, the ICC’s action is premature and violates the principle of complementarity.
Asked by an American journalist in March 2024 his view on the ICC, President Ferdinand Marcos Jr. said: “We view it as a threat to our sovereignty, simply because the ICC was formed to conduct, to provide justice to areas where there is no judiciary, where there is no court system, where there is no police, where there is no peace and order, and that’s not the Philippines.” Now his position has radically shifted to full cooperation.
Rosario grounded his argument on both the Preamble and Article 17 of the Rome Statute itself.
The Preamble places the primary duty of prosecuting international crimes on states, while Article 17 renders a case inadmissible before the ICC if a competent national court is actively and genuinely addressing it. Complementarity, in short, means the ICC steps in only when national systems are unable to perform their functions.
Even conceding that the ICC retained jurisdiction because its investigation began before the Philippines’ 2019 withdrawal from the Rome Statute, Rosario argued that the complementarity trigger had not been met.
He pointed out that the Philippine justice system has a functioning and independent judicial framework fully capable of investigating crimes domestically.
There was no showing that the Philippines is unwilling or unable to act, the condition that would justify ICC intervention.
Allowing the ICC to proceed under these circumstances, he argued, is not just premature — it is an abdication of Philippine judicial sovereignty.
The ICC Pre-Trial Chamber said the Philippines had not genuinely carried out relevant investigations of the crimes committed under the war on drugs.
Rosario said Article III, Section 2 of the 1987 Constitution requires that any arrest be based on a warrant issued personally by a Philippine judge upon a finding of probable cause, a constitutional requirement that no international tribunal can override.
An ICC warrant carries no automatic legal force within Philippine territory, he argued further. For an arrest to be valid, it must comply with domestic legal protocols: either a warrant issued by a local Philippine judge upon an independent finding of probable cause or the recognized requisites for a valid warrantless arrest.
The same logic applies to Interpol Red Notices or Diffusions — law enforcers cannot act on these without first securing a valid local court order, Rosario said.
Thus, as most legal minds have pointed out, the proper track is extradition, not the enforcement of the ICC warrant.
If the end goal is to surrender a person to the ICC, Rosario said the constitutionally and legally prescribed route is extradition or a comparable surrender process recognized under Philippine law.
The issue, he contended, extends far beyond Duterte or Dela Rosa. At stake is whether the ICC can override local judicial processes and procedures.
Ultimately, the question is one of liberty. Its deprivation is a constitutional matter, not a mere administrative act.