Best way to stop ICC

My column last Monday (“ICC prosecutor targets DOJ, OSG”) elicited a lot of comments, invariably asking: What is the best way to stop the ICC’s investigation and prosecution of alleged crimes in the Philippines that would surely humiliate our country and align it with the failed African states, a scenario that the Inquirer’s Feb. 28 editorial labeled “a nightmare.”

FIRST, THE FACTS IN BRIEF. The Pre-Trial Chamber (PTC) of the International Criminal Court (ICC), composed of three judges, granted ICC prosecutor Karim Khan the authority to conduct a preliminary investigation of alleged crimes against humanity through the murder of drug suspects estimated by the Philippine Drug Enforcement Agency at 6,252 (reported in the Inquirer editorial) and by its critics at 30,000.

However, at the request of our government’s legal counsel, the Office of the Solicitor General (OSG), Khan suspended his investigation. Not satisfied with the slow and perfunctory actions taken by our Department of Justice (DOJ), Khan announced he was resuming his investigation. The OSG appealed his action to the ICC’s Appeals Chamber (AC) composed of the president of the Court and four other judges (different from those in the PTC). In all, the ICC is composed of 18 judges elected by various member-states, with staggered terms of nine years each.

The OSG had been granted until March 13 to submit its appeal brief; thereafter, Khan will file his response. Per its normal timeline, the AC will probably take about four months, until August, to issue its decision. It could also call for oral arguments.

If the AC rules against the OSG, the ICC prosecutor need not come physically to our country because the testimonies of witnesses, including the relatives of the victims, could be taken abroad, and the documentary evidence brought and authenticated abroad also. With the use of advanced technology, physical presence can be dispensed with.

WITH DUE RESPECT, I believe our government may have lost its credibility in showing that it is not—to quote the Rome Statute that created the ICC—“unwilling or unable genuinely to carry out the investigation or prosecution.” The word “genuinely” in that double negative simply means that the willingness and ability to investigate must be trustworthy, transparent, and thorough.

The problem is that President Bongbong Marcos had publicly defended former president Rodrigo Duterte and Sen. Ronald dela Rosa, the alleged main perpetrators of the mass killings, without first conducting a trustworthy, transparent, and thorough investigation. Intended to please Duterte, this defense ironically shows that the President had already prejudged the innocence of the alleged main perpetrators.

This presidential prejudgment, plus the resolutions filed in both Houses of Congress also defending the former president, may have tainted his alter egos and subalterns with bias, especially the DOJ and OSG officials, despite their being talented and respected. Thus, to fend off the ICC, the administration must rethink its legal strategy. Here’s how.

For sure, Duterte, Dela Rosa, and other officials will have to face investigation and prosecution. This will either be in our country or in the ICC, and it will be in the ICC if the AC would judge the administration to be “unwilling or unable genuinely to carry out the investigation or prosecution.” This latter alternative will definitely embarrass our benighted country before the world.

I think the President knows the value of being in the good graces of the family of nations; he has been working hard from Day One of his incumbency to earn the friendship, respect, and help of other countries and of international institutions and organizations to assist him in solving our stubborn problems of poverty, joblessness, lack of food and personal security.

To be fair, both Duterte and Dela Rosa, during separate interviews, have agreed to face investigation, prosecution, trial, and judgment by “Filipinos” but not by the foreign judges of the ICC. However, the defense put forth by the President and the legislators may have unwittingly minimized the duo’s posture and maximized the possibility of the ICC’s assertion of its statutory duty to investigate, prosecute, and judge our former top officials.

TO SOLVE THIS DILEMMA, the administration could take lessons from former president Ferdinand Marcos Sr. When faced with the humongous public outcry for justice due to the assassination of Ninoy Aquino in 1983—with many fingers pointing at him and his trusted officials as the culprits—the late strongman created an impartial body, the Agrava Board composed of credible and independent members to identify and prosecute the true killers.

In sum, my answer to the question is the creation of a credible, competent, and independent body similar to the Agrava Board to investigate and prosecute the killings, identify the masterminds, and observe speed and due process in passing judgment. In this way, IMHO, the ICC would be stopped and our one and only Motherland would be spared shame and ignominy before the universe.

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