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ICC’s persecution complex

“It should dismiss outright any and all communications directed against the President, especially because Sabio categorically under oath stated that the communications were filed for political propaganda.

Salvador Panelo

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That the Philippines has a robust democracy and a working and effective judicial system that renders justice to those who seek it easily are unarguable truisms. One has only to see the many unscrupulous government officials and employees that have been sent to jail by the courts for corruption, misfeasance and malfeasance in office. So have there been hundreds of criminals convicted for criminal activities and commission of heinous crimes.

No one is prevented from instituting any complaint against those who commit crimes against persons and properties, as well those who perform fraud against the government. While it may be said that sometimes it takes a while before the scoundrels and transgressors of law receive their comeuppance, sooner or later the law will inexorably catch up with them.

The administration has repeatedly and consistently called upon human rights groups to bring to the courts what they claim to be state-initiated and drug-related extrajudicial killings so that they can be property prosecuted. In unison however with the political opposition and other detractors of the President, they opted to raise the issue to the international stage and ultimately found an ally in the gullible, willing and intrusive entity in The Hague, Netherlands: the International Criminal Court (ICC).

The ICC had no — and cannot acquire — jurisdiction over President Duterte, and for that matter the Philippines. As the President correctly pointed out, the Rome Statute that breathed life to the ICC is unenforceable in the Philippines due to lack of publication, the operative act that makes it effective in this jurisdiction. The absence of such legal requirement violates Article 2 of the Civil Code and Article III, Sections 1 and 7 of the Philippine Constitution, which respectively guarantee the rights of the people to due process and to be informed on matters that they should be knowledgeable of, the ignorance of which does not excuse them from compliance therewith. In the case of the SoJ (Secretary of Justice) vs Lantion, it held that treaties should not — as they cannot be — in conflict with our Constitution.

As we have previously repeated in many fora, even if we assume that the Philippines became a state party to the Rome Statute, nevertheless the ICC cannot acquire jurisdiction over it because the very source of its existence defers to the principle of complementarity that requires an inability or unwillingness on the part of the state party to investigate and prosecute its own offenders for the commission of crimes named in the Rome Statute before ICC can exercise jurisdiction.

Aside from the fact that the crimes in the Rome Statute are already incorporated into our municipal penal laws, the Philippines cannot be deemed to be unwilling or unable to prosecute the same as all its courts are functioning, and in fact complaints filed against whomsoever are being heard.

Moreover, even if we grant that the principle of complementarity has been observed, the ICC still cannot acquire jurisdiction as we have already withdrawn our membership with the ICC, assuming that our country became a member thereof, because it is only conducting a preliminary examination, and not a criminal investigation, over the complaints against the President. Under the Rome Statute, the ICC will not lose its jurisdiction over a state party if it has already commenced a criminal investigation prior to the withdrawal of its member; hence, the Office of the Prosecutor of the ICC cannot, under the Rome Statute, continue with her official activities in relation thereof.

The withdrawal of the erstwhile complainant, Mr. Jude Sabio, of his communications against PRRD, should awaken the ICC from its stupor, if not ignorance. It should dismiss outright any and all communications directed against the President, especially because Sabio categorically under oath stated that the communications were filed for political propaganda and hatched by Mr. Antonio Trillanes IV and the Liberal Party, principally to discredit and besmirch the reputation of President Rodrigo Roa Duterte.

The ICC still appears bent in proceeding with its irregular and erroneous exercise of jurisdiction, allowing itself to be a tool for political persecution. In addition, apart from its unwelcome and oppressive act, it is in fact disrespecting and assailing the sovereignty of this country.

Before the case of PRRD before the ICC, which glaringly manifests a travesty committed with impunity under the guise of following international law, triggers a slew of withdrawal of other state members, the ICC must cleanse itself from the growing perception of the international community of its bias and persecution complex.

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