De Lima's acquittal and our resistance to China strengthen case against ICC intervention

Antonio Contreras

THOSE who celebrate former senator Leila de Lima's acquittal and yet insist that the Ferdinand Marcos Jr. government cooperate with and allow the International Criminal Court (ICC) to pursue the cases against former president Rodrigo Duterte, Sen. Ronald de la Rosa and others in relation to the war on drugs waged by the latter are simply contradicting themselves.

The very core of ICC's legitimate jurisdiction rests on the premise that a particular state is unable or unwilling to prosecute. De Lima's acquittal, even if delayed, is a testament to the ability of our courts to render justice in drug-related cases. This comes on the heels of several already decided cases which led to the conviction of police officers for their involvement in the war on drugs.

In 2018, three police officers were convicted for the murder of Kian de los Santos during a drug sweep. This was followed by another conviction in 2023, where a police officer was found guilty of the killing of two teenagers in 2017. Recently, four police officers were convicted for the death of a father and his son in a drug-related operation in 2016. This brings to eight the total number of convictions.

As of January, there were 177 police officers charged with drug-related offenses in the National Capital Region alone, while the Department of Justice was pursuing 151,818 court cases. These numbers show that the Philippines is both able and willing to prosecute drug-related cases.

The fact that there is no single case filed against Duterte and de la Rosa is evidence that the lack of willingness does not rest on the justice system, but on the victims themselves, influenced by the political interests of individuals and groups that would like to weaponize the issue to benefit their partisan agendas.

The evidence that favors the Philippine government's claim of its ability and willingness to pursue and prosecute is further strengthened with the current hearings being conducted by the House of Representatives on the alleged violations of human rights, particularly during the conduct of the war in drugs of the previous Duterte administration. While some people can label this as a partisan move made by anti-Duterte forces in the House, it does not vitiate the fact that the fear of a government backlash against any possible witness or complainant against Duterte and his co-accused in the case that is now at the ICC is more imagined than real. After all, the proof lies in the successful prosecution and conviction of police officers for their criminal acts during the war on drugs.

The very core of the principle that limits the jurisdiction of the ICC only to cases when there is an inability or unwillingness on the part of any state party to prosecute, is premised on the much-valued doctrine of sovereignty of states. There is no higher sovereignty in the world community of states than that solely bestowed on states, and not on bodies like the United Nations or the ICC. The system of rules enshrined in the Geneva Convention that created the ICC recognizes the supremacy and the inviolability of the sovereignty of states.

The ICC gains legitimate jurisdiction only when the state is a failed one, where it no longer has the ability to prosecute, or when it is unwilling to prosecute mainly because it is already corrupted by a dysfunctional justice system that is controlled by an elite class to which the accused perpetrator of an actionable crime belongs. These conditions are not present in the Philippines at the moment. We are not a failed state, and despite our flaws, we have a justice system whose wheels may grind slowly, but nevertheless still operate within the ambit of the rule of law. The acquittal of de Lima clearly affirmed this.

The Philippines is now at a juncture where its sovereignty is a hot and raw issue. Our right as a sovereign country is being assailed by China as it deliberately violates our exclusive economic zone (EEZ) in the West Philippine Sea. We cannot possibly insist on our sovereignty when it comes to China, but willingly surrender it to the ICC in the case of the war on drugs waged by the former president. We cannot insist on our status as a sovereign country and yet undermine this by allowing the ICC to acquire jurisdiction over our citizens for committing acts that can be construed as violations of established laws. And it is simply odd for anyone — be it a politician, a vlogger or an ordinary citizen — who criticizes China's intrusion into our EEZ to also urge President Marcos and Congress to abdicate our standing as a sovereign state and allow the ICC to acquire jurisdiction over Duterte, de la Rosa and other respondents in the case against them in the said ICC.

President Marcos has correctly opined that the acquittal of de Lima is strong evidence that our justice system works. He further maintains that the government would not make moves that would tacitly be construed as cooperating with the ICC. The President is absolutely correct in his stance. Doing otherwise could even amount to an impeachable offense, since such would be an act that would be construed as a betrayal of public trust and a willful violation of our sovereignty.

The ball is now in the hands of the victims of the drug war. They should respond to the challenge of de la Rosa to file cases against them in the proper local courts. They should not allow their quest for justice to become simply an attached annex to the larger political agenda of anti-Duterte forces whose interest in pursuing justice commingles with their partisan interests.

For her part, de Lima's plan to file cases against Duterte and other former officials for wrongful prosecution rests on her trusting our justice system and would be undermined if she continues to insist that we should cooperate with the ICC, a stance that is premised on the absence of such trust.