Negating ICC complementarity, putting President Marcos Jr. in a bind

A group of legislators led by former president and now Senior Deputy Speaker Gloria Macapagal Arroyo has filed House Resolution No. 780 which is titled, “A resolution in defense of former president Rodrigo Roa Duterte, the 16th President of the Republic of the Philippines, against investigation and/or prosecution by the International Criminal Court.” The resolution emphasizes former president Duterte’s “remarkable accomplishments brought about by his relentless campaign against illegal drugs, insurgency, separatism and terrorism, corruption in government, and criminality” which made the life of Filipinos “better, comfortable, and peaceful.” It also underscores the drug problem of the country that was becoming an “existential threat to the country’s social fabric,” and the country’s unprecedented growth in exports and investments during his watch was a result of the Duterte administration’s “holistic and whole [of] nation approach in ending insurgency and curbing the drug menace.” The resolution also pointed out that the country has a functioning and independent judicial system.

Much like a decision of a first level trial court, the House resolution is considered, in international law, an act of state. It may be construed as a policy statement of absolving Duterte from any complicity in the “war on drugs,” which left a murderous trail. The killings, in the context of the “war on drugs” being considered crimes against humanity, are the subject of the probe approved by the International Criminal Court (ICC) in September 2021. In November 2021, the ICC suspended the investigation upon request of the Philippine government, which cited the country’s own investigations into the drug war killings.

Last January, the ICC ordered the resumption of the investigation. Against the resumed ICC probe, the House resolution raised a loud whimper: Duterte is innocent of the charges leveled against him. The ordered suspension of the ICC probe was premised on the principle of complementarity, that is, the country’s domestic legal systems can exact accountability against those who might be responsible for crimes cognizable by the ICC. The representation of the House resolution that the country has a functioning and independent judicial system is belied by the House resolution itself. If the country indeed has a functioning and independent judicial system that can exact accountability against those responsible for crimes cognizable by the ICC, then there would be no need for a group of members of the legislative branch of the government to absolve Duterte from any complicity in crimes against humanity in the context of the war on drug. The ICC might just construe the resolution as a clear indicum that the Philippines is unwilling to prosecute those suspected of committing crimes against humanity in the course of the war on drug.

The ICC probe, which the House resolution seeks to bar, will indubitably include a determination whether or not complementarity exists. Preventing the investigation might just prompt the ICC prosecutor to use the House resolution as proof that complementarity does not exist, and recommend that the ICC take cognizance of the case against Duterte and his former chief of the Philippine National Police. The House resolution will only serve to negate complementarity. It rather pushes Duterte off the edge of an ICC prosecution.

HR 780 also unduly interferes with President Marcos Jr.’s exercise of exclusive constitutional powers of foreign relations. The matter of allowing the ICC investigator do his job in the country solely rests on the President’s discretion; whether or not to comply with treaty obligations under the Rome Statute. HR 780 unduly puts the president in a bind; whether to uphold parochial concern of protecting a political ally, or comply with the Vienna Convention on the Law of Treaties of which the Philippines is a state party. Pacta sunt servanda (agreements must be kept) is a principle in international law that cannot simply be ignored.

Frank E. Lobrigo