Column – Fortnight – We need to comply with a rules-based order


By Roland Rabang

IN a way, we only waited for President Ferdinand Marcos Jr.’s official pronouncement that the Philippines will not rejoin the International Criminal Court (ICC) to confirm what we all have known all along that the Philippines will not rejoin the court in the Hague.

         This can be seen as a part of the political calculus attending Bongbong Marcos’ campaign for the presidency in a sense that his alliance with Sara Duterte assures that the restoration of the ICC pact, at least during Marcos Jr.’s term in office, will never see the light of day.

         Thus, any modicum of good that might have come out of that meeting at the Office of the President in Malacañang would be just that – only pictures. The outcome is decidedly inevitable. And if what the President and his group – which included the enduring Juan Ponce Enrile who is now chief presidential legal counsel, and accredited Philippine litigant to the Hague Harry Roque – did was to smile before the camera, any further discussion on the subject would not have been necessary.

         Although, of course, the President needed to demonstrate that he is acting on a July 14 communication coming from the ICC prosecutors that they would, in fact, resume their investigation into extra-judicial killings that took place during the infamous Duterte drug wars.

         Still however, it was obligatory for President Marcos Jr. to publicly declare his reasons for deciding that the Philippines should not rejoin the ICC, arguing that the matter is already the subject of an ongoing Philippine investigation such that an ICC-initiated probe is no longer necessary.

         President Marcos Jr.’s conclusions apparently derive from a previous action by former President Rodrigo Duterte in March of 2018 that the Philippines withdraw its membership from the ICC.  The Philippines became a party to the Rome Statute in November 2011 under the administration of former President Benigno Aquino III. The Philippines’ withdrawal took effect in March of 2019.

         The withdrawal might have been effective in 2019 but that does not mean the ICC’s role ends there. Under its rules, the ICC retains jurisdiction over cases that they are investigating from the time of membership up to the day of withdrawal. In the case of the Philippines, that is from 2011 to 2019.  Yes, President Marcos Jr. can very well say (and he said this during his campaign) that it will not allow the ICC to come to the Philippines to conduct their investigation, but his words simply mean that his administration will not lend official support to an ICC fact-finding mission to the Philippines.

         The President’s campaign argument that the Philippines has a functioning judiciary and is therefore capable of undertaking an investigation of this sort misses the mark.  First, he might have been referring to the Department of Justice-led Inter-Agency Committee (IAC) created in 2012 by virtue of AO 35 enacted by former President Aquino III.

         The mandate of the IAC is all-encompassing and thus their function is not merely limited to the investigation of alleged extra-judicial killings committed during Duterte’s war on drugs. These cases hark back to the administration of former President Arroyo and include alleged atrocities committed by the military as well as the New People’s Army. Yet, of the 1800 reported cases under its review, only 350 cases have been acted upon as of May this year. Of this number, 29 have been delisted because of lack of witnesses or lack of interest by the complainants.

         This raises an issue on how functional the Philippine judicial system really is. Sure, we are always reminded that the legal process works differently and therefore it takes time for justice to be administered. The preceding facts tell us that if the administration of justice really takes “time,” then time itself works against the resolve of witnesses to testify or the commitment of complainants to prosecute the case itself.

         But then again “time” is not the only element that works against the prosecution of these cases. There is the question of financial resources, specifically whether or not the private complainants have the money to sustain or even accelerate the prosecution of their own individual cases. Resources are an issue, too, within the DOJ itself as well as the other departments under the IAC. Do they have the time, the personnel, as well as the budget to carry out their mandate especially since the number of reported cases even goes as high as 6000?

         Then there is the commitment of leadership. If Justice Secretary Guevarra under the Duterte administration was able to move forward with only 350 cases, will the current Justice Secretary Remulla fare any better?

         During his campaign, Bongbong Marcos described the ICC as a “foreigner…doing the job (of the judiciary) for us.”  This pronouncement seems to find affirmation in Senator Ronald “Bato” Dela Rosa when he said that the ICC encroaches upon Philippine sovereignty. Quite recently, Justice Secretary Remulla predictably engaged in whataboutism and cited the United States, China, and Russia as not being members of the ICC and yet they are not considered international pariahs.

         There is a lot to unpack here. First, the ICC is not a foreign entity that impinges upon national sovereignty. It is a part of a so-called “rules-based international order” of which institutions and norms govern the conduct of nations under this treaty. Adherence to these rules means (in the case of the ICC) that there is multilateral compliance with the universal norms of human rights, the rule of law, as well as gender equality.

Second, rules-based international order is either adhered to or flouted by countries like the US, China, or Russia depending on which treaty is convenient for them. Thus, for a time Russia’s Vladimir Putin courted membership in the European Union until he apparently could not meet the EU’s requirements for adherence to democracy and human rights.

  Of course, we know China refuses to recognize another rules-based covenant which is the United Nations Convention of the Laws of the Sea (UNCLOS) because it rejects the principles of multilateralism among others. The US, on the other hand, professes multilateralism by its membership with other treaties and is notably the only non-European member of the North Atlantic Treaty Organization (NATO). The covenant is convenient for America because it is the only nuclear power under this treaty.

         If they flout the rules-based international order, it is because these countries – economic and military powers as they were – also operate under the principle of “might is right.”  The question now is, does the Philippines have either the military or economic might to flout the ICC for instance? Contrary to Secretary Remulla’s pronouncements, the Philippines is reliant on multilateralism and the rules-based order for peace and security. 

It becomes a pariah if, in the process of rejecting the rules-based order, it establishes a dismal human rights record, for instance. The Philippines saw this under the administration of Marcos Sr. and the result was that the Philippines’ credit rating was degraded.

Rejecting the ICC marginalizes Philippine interests more than the perceived benefits that some allege under the so-called war on drugs. Ultimately, President Marcos’ pronouncements smack of the perpetuation of impunity and benefit only one person he is politically indebted to: Rodrigo Duterte.

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