The President, not the senators, will decide whether the Philippines will rejoin the International Criminal Court (ICC), Senate President Juan Miguel Zubiri said Tuesday.
“To re-enter or to remain out of the jurisdiction of the International Criminal Court is not a decision we the senators make,” Zubiri said.
The President, as the chief foreign policy maker, has that sole responsibility, Zubiri said.
“He alone makes that decision and everything else is just noise on whether we should join or not,” he added.
Zubiri’s comment came amid a flurry of statements from lawmakers who want to see former President Rodrigo Duterte face an ICC investigation for his bloody war on drugs that killed thousands of suspects in anti-narcotics operations during his term.
On the other hand, Duterte’s allies—including his daughter, Vice President Sara Duterte; her ally and the President’s sister, Senator Imee Marcos; and his former police chief, Senator Ronald dela Rosa—argue against rejoining the ICC in an apparent bid to shield the former president from ICC scrutiny.
They could draw solace from a Department of Justice statement, released Tuesday, saying the ICC has no jurisdiction over the Philippines.
No Senate concurrence needed Zubiri’s statement contradicted Dela Rosa’s assertion earlier this week that a presidential decision to rejoin the ICC would need Senate concurrence.
Zubiri’s stand drew support from former Senate president and Justice secretary Franklin Drilon, who said President Marcos has the legal authority to rejoin the ICC without the need for Senate concurrence.
“In my view, the concurrence of the Senate is not necessary for the Philippines to rejoin the International Criminal Court (ICC). The Philippines can rejoin the ICC without returning to the Senate. The President can rely on the original resolution or ratification, as it remains valid and in effect,” Drilon said.
Senate Resolution No. 57, which was passed on Aug. 23, 2011, expressed the Senate’s concurrence in the ratification of the Rome Statute creating the ICC.
Like any other resolution or law, Senate Resolution No. 57 remains legally binding unless it is specifically repealed, Drilon said.
Drilon cited previous executive actions, including the unilateral withdrawal from the ICC by former President Duterte in 2017.
“The Senate’s concurrence in the ratification of the Rome Statute was never withdrawn. It therefore remains valid,” he said.
“If withdrawal from a treaty can be made through an executive action as shown by former President Duterte, then the decision to rejoin can likewise be made through an executive action by President Marcos,” Drilon said.
Cooperating with the ICC
Senator Risa Hontiveros on Tuesday filed a Senate resolution urging Malacañang to cooperate with the ICC and assist in its investigation of alleged crimes against humanity committed during Duterte’s war on drugs.
The President recently confirmed that his administration is studying the possibility of the Philippines resuming its membership in the ICC, nearly five years after former President Rodrigo Duterte withdrew the country from the Rome Statute, the ICC’s founding treaty.
But Hontiveros argued that the country’s withdrawal from the ICC in March 2018 amid an active ICC investigation into summary killings during the war on drugs, does not mean that it no longer needs to cooperate with the international agency.
The Rome Statute states that “withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing state had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective…”
Hontiveros also pointed out that the Supreme Court, in Pangilinan v. Cayetano, declared that the Philippines’ withdrawal “does not undermine or diminish the ICC’s jurisdiction and power to continue a probe that it has commenced while a state was a party to the Rome Statute,” and “does not discharge a state party from the obligations it has incurred as a member.”
“The Philippines has historically been at the forefront of advancing humanitarian law and international justice, and it is high time that we affirm our commitment to these values before the international community,” Hontiveros’ resolution said.
“The recent pronouncements by the President, his allies and his deputies offer hope for a “game changer” for the families of Kian delos Santos, Carl Angelo Arnaiz, Reynaldo “Kulot” de Guzman, and thousands of other Filipino families seeking justice for human rights violations,” she said.
Meanwhile, House Speaker Martin Romualdez justified the chamber’s hearings into resolutions urging the government to cooperate with the ICC probe into Duterte’s war on drugs. He said the House hearings would be an opportunity for those opposed to the resolutions to state their arguments.
The House panels on justice and human rights are set to conduct a second joint hearing on the resolutions on Wednesday.
Before this, House Deputy Minority Leader France Castro joined House Majority Leader Manuel Jose Dalipe in maintaining that the House resolutions were not “anti-Duterte.”
Castro said the resolutions were aimed at getting overdue justice for the families of the victims of extrajudicial killings in Duterte’s war on drugs. She urged the former President’s daughter, Vice President Duterte, to participate in the joint hearings at the House, saying this was the proper venue for her to present a position paper on the subject.
President Marcos recently said the government was studying the option to “return under the fold of the ICC.” This was in contrast to his statements in 2022 that the ICC probe was a threat to the country’s sovereignty and that the court had no jurisdiction over the Philippines.
In October, Makabayan bloc lawmakers filed a House resolution urging the Marcos administration to cooperate with the ICC investigation.
A similar resolution was filed by House committee on human rights chairperson Bienvenido Abante Jr. of Manila in November.
Romualdez on Thursday refuted speculation that the House was giving priority to these resolutions.
DOJ stand The DOJ on Tuesday maintained that the ICC has lost jurisdiction over the country following its withdrawal as a member state.
DOJ spokesman Jose Dominic Clavano IV issued the statement in response to Vice President Sara Duterte’s call for the DOJ not to cooperate with the ICC in its investigation into the deaths related to the anti-illegal drug campaign during her father’s presidency.
Clavano said there is no need for Duterte to request the DOJ to oppose ICC’s probe since the DOJ has not changed its position on the issue. “I think here, on the part of the DOJ, this is still our stand. The ICC has no jurisdiction over us. But of course, we are open if there will be a change in the policy,” Clavano said.
The DOJ official added the possibility of the country renewing its membership to the ICC is still far-fetched as there are many legal challenges and issues to be considered.
“We really need to study all the consequences of returning to the ICC,” he said.
Meanwhile, Solicitor General Menardo Guevarra said non-cooperation with ICC in its probe against Duterte’s drug war and rejoining the ICC are two different things.
Guevarra, who used to be Duterte’s Justice secretary, said the government has no legal duty to cooperate with the ICC in its investigation of the drug war since it can no longer exercise jurisdiction after the effectivity of the country’s withdrawal from the ICC in 2019.
“The House resolutions encouraging the government to cooperate, if adopted, are non-binding expressions of their sentiment only,” Guevarra said.
On the other hand, he said rejoining the ICC “is a policy decision that will involve both the executive and legislative departments.”
“This matter needs a very serious study because many factors and competing interests need to be considered,” he said.
Duterte allies speak out Senator Marcos, a close ally of the vice president, reacted strongly to Hontiveros’ resolution.
“So they really want trouble? Well, PPRD (President Rodrigo Roa Duterte) has said ‘Bring it on!’,” she said. She maintained that the decision to cooperate or not with the ICC is one for the executive ( to decide) “And my brother, the President of the Philippines, has already made it clear that the ICC has no jurisdiction to conduct the probe. I share that view,” said Marcos.
Dela Rosa, on the other hand, said he would not talk to Hontiveros as he took her resolution personally.
“She might tell me it’s just her job. But for me, that’s very personal… because I’m one of the subjects [of the ICC investigation],” said Dela Rosa, who led the bloody war on drugs as Duterte’s police chief.
He said he does not expect Hontiveros’ resolution to gain traction, however.
Meanwhile, former senator Leila de Lima, who blames Duterte for her detention of what she said are trumped-up drug charges, said the government should fully cooperate with the ICC.
“There should be no issue about rejoining the ICC, because our withdrawal was very questionable and done to serve the interest of one man,” De Lima said in a mix of English and Filipino, referring to the former president.