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The ‘Things Said in Passing’: The Duterte Drug War, Philippine Presidential Foreign Policy Prerogatives, and the Rome Statute of the International Criminal Court in Pangilinan v Cayetano

A collaboration between CIL Dialogues and AsianSIL Voices

by Romel Regalado Bagares
Published on 5 April 2023

A lean-to at a slum in the outskirts of Manila where four young men, most of them scavengers at a nearby city dump, were allegedly summarily executed in early 2017 by police as part of the Duterte government’s drug war. A fifth victim survived the ordeal by playing dead, to subsequently give evidence to the investigation being carried out by the International Criminal Court (photo by the author).

On 16 March 2018, the Philippines formally submitted its notice of withdrawal from the Rome Statute (RS). This decision by the then president of the Philippines, Rodrigo Duterte, was in response to the ICC prosecutor’s opening of a preliminary examination (PE) into alleged crimes against humanity committed in the Philippines in the context of the ‘War on Drugs’ implemented by the Philippines government from 1 July 2016. On 16 May 2018, a group of Filipino senators—Francis Pangilinan, Franklin Drilon, Paolo Benigno Aquino, Leila De Lima, Risa Hontiveros, and Antonio Trillanes IV—filed a petition before the Philippines Supreme Court. Other civil society actors and members of the legal profession, such as he PCICC (Philippine Coalition for the International Criminal Court) and the IBP (Integrated Bar of the Philippines), also filed petitions. The petitioners requested the Court to find that the executive’s withdrawal of the Philippines from the RS was unconstitutional and to instruct the executive to revoke its withdrawal. Pangilinan v Cayetano was decided by the Philippine Supreme Court on 16 March 2021 (Pimentel v Cayetano [2021] G.R. No. 238875, G.R. No. 239483, and G.R. No. 240954 [En Banc] 16 March 2021). 

The Court dismissed the petitions on the basis that they were moot at the time made as the withdrawal had been implemented. The judgment has attracted significant criticism. Nevertheless, the judgment should not be dismissed. Having a hybrid legal system bequeathed to it by Spanish and American colonization, the Philippines adheres to the common law doctrine of stare decisis. But its legal system is undergirded by a much longer civil law tradition, and in a limited way, by Shariah law as well as customary laws of indigenous peoples. 

The judgment stands out more for its obiter dicta on the Philippine’s treaty practice than for its ratio decidendi. Moreover, it may yet prove relevant to the ongoing PE by the ICC prosecutor of the Philippine situation, especially on the question of residual obligations of an exited state party (SP) under Article 127(2) of the RS.

Background

Immediately upon assuming the Presidency on 30 June 2016, Mr. Duterte launched a bloody drug war, fulfilling a campaign promise. A 2020 Human Rights Council Report says that at least 8,663 people have been killed as a result. On 8 February 2018, then ICC Prosecutor Fatou Bensouda announced the opening of a PE on the Philippine drug war. On 17 March 2018, the Philippine Department of Foreign Affairs, at President Duterte’s behest,  filed a notice with the UN Secretary General that the Philippines was withdrawing from the RS. The country has been a SP since 1 November 2011 and the withdrawal became effective on 17 March 2019.

Three petitions were subsequently filed against the President’s decision. A key issue was whether the executive’s withdrawal of Philippines from the RS was valid under Article 7, Section 21, or the treaty clause of the 1987 constitution. The provision reads: ‘No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.’ The text is silent on the question of a unilateral withdrawal by the Executive.

In Pangilinan’s 101-page ruling, the Court’s 15 justices dismissed the consolidated petitions, holding that by the time the petitions were filed, the president ‘had already completed the irreversible act of withdrawing from the RS.’(p. 63). The Court’s decision was accompanied by a lengthy obiter dicta that has been criticized earlier in other respects by legal scholars and lawyers in another venue. This obiter dicta is of significant importance given the Pre-Trial Chamber (PTC)’s granting of the ICC Prosecutor’s request to initiate and continue investigations into the Philippines on 15 September 2021 and 26 January 2022 respectively.

The Duty to Cooperate with the ICC

There has been some debate on the scope of an SP’s duty to cooperate with an ICC investigation under Article 127(2) of the RS. One view is that the obligation is triggered only upon a grant by the Pre-Trial Chamber of authority to the ICC Prosecutor to commence a PE on a situation in a territory subject to ICC jurisdiction. This was most recently echoed by the Philippines in its appeal filed with the Appeals Chamber, arguing that in contrast to Burundi, where the PTC granted PE authorization to the ICC Prosecutor prior to the taking effect of Burundi’s withdrawal, in the case of the Philippines, the withdrawal took effect at the PE stage.

Instead, the obiter dicta holds that an SP’s duty to cooperate with the ICC begins with the conduct of a PE, regardless of whether at the time of the initiation of the PE, it is no longer a party to the RS (p.87). Pangilinan’s obiter dicta thus maintains that under Article 127 (2) of the RS, the Philippines is obligated to cooperate with the ICC on investigations on matters arising during the period the Philippines was SP to the RS (p.88). This interpretation is also consistent with the object and purpose of the RS, which is that ‘the most serious crimes of concern to the international community as a whole’ must no longer remain unpunished (Prosecutor v Dyilo, 2007, para. 281)

The Rome Statute and the IHL Act

The Court disagreed that Philippine withdrawal from the RS deprives Filipino citizens of an effective remedy for extra-legal killings committed by state actors in the drug war. Specifically, the Court stated that a domestic law is available in the Philippines for such a purpose (pp. 3, 99): the International Humanitarian Law Act (Republic Act 9851 2009, IHL Act). Although the law ‘echoes the substantive provisions of the [RS]’ (p. 88), it is ‘broader than the [RS] itself’ (p. 55) and was passed before the Philippines became an SP, removing it from the congressional imprimatur rule (p. 55). Further, the Court found that the Philippines remains bound by its obligations under the RS, as the latter’s provisions are ‘generally-accepted principles of international law’ under Article II (2), or the Incorporation Clause of the constitution (p. 97-9).

Reverse Complementarity

Under Section 17 of the IHL Act, complementarity is a bedrock principle. Agreeing with the PCICC and IBP petitioners’ joint memorandum, the obiter dicta recognized Section 17 of the IHL Act as a basis for the duty to cooperate with the ICC under the law’s so-called ‘reverse complementarity’ mechanism, through which the Philippines may yield its ongoing investigations on crimes cognizable under the RS in favour of the ICC’s (p. 86-8). The provision reads:

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.

What’s Next

Nearly two years after Pangilinan, its obiter dicta may now be read as a wasted opportunity for the Philippines to prove that ‘[m]echanisms that safeguard human rights and protect against the grave offenses sought to be addressed by the [RS] remain formally in place in this jurisdiction.’ (p. 99). No investigations that mirror the ICC proceedings had been carried out under the IHL Act in relation to Mr. Duterte’s drug war after the Pangilinan ruling.

Since then, the ICC’s PTC I had granted the new ICC Prosecutor’s (Mr. Karim Khan) request for authorization to conduct a PE on alleged crimes against humanity committed in the conduct of the drug war, and even the summary executions committed in Davao City when Mr. Duterte was its mayor. While this expands the PE’s scope, it spans Philippine RS membership, from 1 November 2011 to 16 March 2019. The Philippines subsequently requested the PE’s deferral. If Pangilinan obiter’s logic were any measure, Philippines authorities should have started an investigation ‘on those most responsible’ for the alleged large-scale and systematic targeting of civilians in the drug war and the Davao City killings. On 26 January 2023, PTC I approved Mr. Khan’s request for the PE’s resumption, in the absence of any domestic efforts at pursuing accountability focus.

Mr. Duterte’s successor, President Ferdinand Marcos Jr—son and namesake of the late dictator Marcos Sr.—echoed the former’s populist narrative that the ICC investigation is a threat to Philippine sovereignty and indicated that his government will appeal the PTC I’s ruling. The killings continue.

The Pangilinan obiter dicta’s persuasive weight on the scope of the state’s duty to cooperate with the ICC may soon be tested. Once arrest warrants are issued against suspects identified by the ICC and if Philippine authorities refuse to enforce them, victims’ families may file suits anchored on the things said in passing, to compel enforcement.

The author is professorial lecturer in international law, human rights law, legal method, and philosophy of law  at three Manila law schools and is on the faculty of the Philippine Judicial Academy. He was lead counsel for the Philippine Coalition for the International Criminal Court in Pimentel v Cayetano (GR No. 239483).

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