Former President Rodrigo Roa Duterte in the International Criminal Court Trial

A lot of issues have been raised related to the arrest of former President Roa Rodrigo Duterte and his turn-over to the International Criminal Court (ICC). Upon the arrest, many were skeptical if indeed, there really was an arrest warrant against him. This was answered during the first hearing when the Court narrated how the there was a case build-up and how it found probable cause leading to the issuance of the warrant.

(Instragram/internationalcriminalcourt)

Another lingering question is the matter of jurisdiction – whether the ICC continues to have jurisdiction even after the Philippines as a state party, withdrew from the Rome Statute. The simplest answer might be Article 127 of the Statute, which states that even if a state party withdraws, it shall not be discharged from the obligations that have accrued prior to its withdrawal and that such 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 prior to when the withdrawal became effective. The withdrawal shall also not prejudice the continued consideration of any matter already under the Court’s consideration before the effectivity of the withdrawal.

It must be noted that in 2021, the Philippine Government had already questioned the ICC about this and in 2023, in a vote of 3-2, the Court ruled that it had. Interestingly, the Philippine Supreme Court en banc, ruled in 2021 that the International Criminal Court can prosecute "government actors: for alleged crimes committed before the country withdrew from the tribunal. And there is the thesis that since the judicial system of the Philippines is functioning, the ICC ought to not have jurisdiction over the case of President Duterte. Definitely, this and all other relevant matters will be raised before the Court and will be resolved in the course of the proceedings.

(Instragram/internationalcriminalcourt)

No doubt that the ICC will see to the impartial trial of Mr. Duterte. The proceedings will come under very close scrutiny by the international community, probably more than if his trial would be by a local court. Besides, the ICC may not reap any benefit or advantage should it be perceived to be unfair.

While the rights of an accused under the ICC Rules may not be exactly the same as those under Philippine law, we can reasonably infer that they would be close and fundamentally similar, because both are based on the democratic ideals. Thus, the Court made it clear during the first hearing that Mr. Duterte must be presumed innocent unless proven guilty and that he might petition for interim release, much like under the Philippine rules where bail is not a matter of right in capital offense cases. So these remedies may appear to be different in nomenclature only but not substantively.

It is noteworthy that nobody has made issue of the fairness of the Court, yet or if some have, it has not yet reached a crescendo. But this might change if after the Court has made its rulings on preliminary matters that the parties will raise. What is certain is that a side that will feel aggrieved by any ruling will cry foul or bias. Which begs the question if Mr. Duterte and the Philippines would be better off with Mr. Duterte being tried by the ICC rather than by a local court.

(Instragram/internationalcriminalcourt)

A local judge will be under pressure in many forms, from leaders and supporters from both sides of the political fence. It would not matter if eventually, he will rule impartially. The perception will always be that he was swayed. Given the wide online access and the proclivity of many to pontificate, baseless opinions, bashing, threats and attacks on the integrity of the magistrate, including that of his family will pervade the social media space. Spins from each side would confuse the narrative such that the resultant will neither be credible nor discernible to the general public. This will herald deeper distrust between the factions and will divert the focus of the nation from the crime and the actors to each other. In the end, the nation will fail to learn any useful lesson.

With the court and the magistrates far and isolated from the mass, they will appear insulated and unreachable. Hence, even if many might not agree with its verdict, there will be an eventual acceptance of its integrity. From here, the country can move on.

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