By Atty. Eduardo T. Reyes III
News had swirled immediately when International Criminal Court (ICC) Prosecutor Fatou Bensouda broke the pronouncement that she will be pushing forward with the preliminary examination of the Philippines’ “war on drugs” campaign which investigation commenced last 08 February 2016 and the timeframe covers incidents within the period starting from 01 July 2016 up to 16 March 2019 and the subject of the investigation had been preliminarily referred to as “genocide” or “crimes against humanity”.
This declaration inevitably leads one to ask: does the ICC have jurisdiction to try “crimes against humanity”?
Jurisdiction is defined as the power and authority of the courts to hear, try, and decide cases. (United Coconut Planters Bank v. Sps. Alison Ang-Sy and Guillermo Sy, et al., G.R. No. 204753. March 27, 2019; Lucila David and the Heirs of Rene F. Aguas, namely: Princess Luren D. Aguas, et al. v. Cherry S. Calilung, G.R. No. 241036. January 26, 2021).
What is the mandate of the ICC?
Succinctly stated by Sang-Hyun Song, former president of the International Criminal Court, “The ICC contributes to the fight against impunity and the establishment of the rule of law by ensuring that the most severe crimes do not go unpunished and by promoting respect for international law. The core mandate of the ICC is to act as a court of last resort with the capacity to prosecute individuals for genocide, crimes against humanity and war crimes when national jurisdictions for any reason are unable or unwilling to do so.”(The Role of International Criminal Court in Ending Impunity and Establishing the Rule of Law, https://www.un.org ).
Does the ICC then have jurisdiction over the purported acts of genocide that Prosecutor Fatou Bensouda has alluded to?
It is fundamental that each country is a “sovereign state”. “Sovereign state” means “One which governs itself independently of any foreign power”. (see p. 3096, Bouvier’s Law Dictionary L-Z (2) Third Revision).
And yet, it must be noted that the Philippines is a signatory to the Rome Statute which created the ICC albeit the Senate has not ratified such representation. As such, the rule is that “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.” (Saguisag v. Executive Secretary et al, GR No. 212426, January 12, 2016).
But in BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, v. ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, G.R. No. 159618 February 1, 2011, it was held that for the ICC to be able to exercise jurisdiction over a state especially the Philippines, its consent must be obtained. Thus:
“Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., “established, widespread, and consistent practice on the part of States,” does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12, 2010, only 114 States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of 194 countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary law and should be deemed as obligatory international law. The numbers even tend to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the Senate for the ratification process.
x x x
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. Like the first element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent. Even further, the Rome Statute specifically and unequivocally requires that: “This Statute is subject to ratification, acceptance or approval by signatory States.” These clearly negate the argument that such has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, “[t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.” The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid.”
Too, it is without a doubt that it is the President who is imbued with the power to enter into executive agreements being the representative of the state in foreign relations. “[T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. (Emphases Supplied) (Saguisag v. Executive Secretary et al, GR No. 212426, January 12, 2016).
And most recently (March 2021), petitions filed by Senators Trillanes IV and Aquino IV, and those of Senators De Lima, Hontiveros, Pangilinan and Drilon last May 16, 2018 as well as a similar petition filed on June 13, 2018 by the Philippine Coalition for the ICC, questioning the unilateral withdrawal by President Duterte from the ICC “without Senate concurrence”, were tossed out by the Supreme Court for being “moot and academic”.
Guided by the foregoing jurisprudence, it is therefore humbly submitted that unless the Senate ratifies the act of the Philippine representative to the Rome Statute creating the ICC, it cannot, under the rule of law, exercise jurisdiction over the Philippines’ “war on drugs” campaign. The victims must look elsewhere – perhaps, at home, in Philippine courts, not off shore-, to seek for the elusive justice that they have been longing for.
“The proper initial question for any court to ask is whether it has jurisdiction over a particular case; if the answer is no, it need not- and should not- decide the merits”(p. 184, A March of Liberty: A Constitutional History of the United States, by Urofsky, Knopf, New York 1988 citing Marbury v. Madison [1803]).
The rule of law must be upheld not only for the sake of any administration, but for all; lest we mount our prejudices, bias and hatred on the very International Rule of Order which we all seek to preserve.
Most important, this will lend credence to the legal aphorism that says that “the law is color-blind”.
(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).
