MANILA, Philippines 鈥� 鈥淐hill. Just relax.鈥�
This was Senator Francis Tolentino鈥檚 advice to Senator Ronald dela Rosa 鈥� one of those named in the International Criminal Court鈥檚 (ICC) investigation into the drug war-related killings under the leadership of Rodrigo Duterte during his term as President and back when he was Davao City mayor.
鈥淭hey don鈥檛 even have jurisdiction,鈥� Duterte-allied Tolentino, who is also Dela Rosa鈥檚 legal counsel in the ICC probe, said in Filipino during a media interview at the Senate on Wednesday.
He noted that there could be 鈥渟ome psychological restrictions鈥� for Duterte, Dela Rosa, and the others who face accusations of crimes against humanity before the ICC, as the probe and the possibility of arrest loom over their heads.
But since there is still no warrant of arrest, Tolentino said they should relax and maintain their 鈥減eace of mind.鈥�
A window to challenge ICC jurisdiction
Tolentino downplayed the latest ICC ruling to junk the Philippine government鈥檚 appeal to stop the investigation into the country鈥檚 drug war, noting that the decision was not even unanimous since the tribunal鈥檚 appeals chamber voted 3-2.
Presiding Judge Marc Perrin de Brichambaut of France and Judge Gocha Lordkipanidze of Georgia had disagreed with the majority, Judges Solomy Balungi Bossa of Uganda, Luz del Carmen Ib谩帽ez Carranza of Peru, and Piotr Hofma艅ski of Poland, who voted to reject the Philippine government鈥檚 plea.
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In their dissenting opinion, Brichambaut and Lordkipanidze said they would have voted to uphold the Philippines鈥� first ground of appeal on whether or not the ICC has jurisdiction in the case.
They said Article 127 of the Rome Statute cannot be invoked in the Philippines鈥� situation since the country announced its withdrawal from the international treaty that established the ICC in 2018.
The Philippines鈥� withdrawal from the Rome Statute took effect in 2019, but the ICC only greenlighted the formal investigation into Duterte鈥檚 drug war two years later, or in September 2021.
Tolentino said the 3-2 vote outcome shows a 鈥渟harply divided鈥� ruling.
The lawmaker argued that the dissenting opinion of the two judges, which he repeatedly quoted when he spoke to reporters, carries more substance.
鈥淭he weight would show that even within the ICC, they are divided. It would have been different if the decision was unanimous. It was not unanimous. It was close,鈥� he said.
鈥淚t shows that we have a divided international community. No single international organization can judge us and can show disrespect, because we have the other distinguished members of the ICC siding with the Philippines,鈥� Tolentino added.
If the dissenting opinion of the two judges would be studied by the Office of the Solicitor General and the Department of Justice, Tolentino said, then the Philippine government can 鈥渢riple chill鈥� and bank on this to challenge the power of the ICC to probe Duterte鈥檚 war on drugs.
鈥淭his can be used if we allow ourselves to be under the ICC鈥檚 jurisdiction. This can be used. This can be used for anyone who is accused. The argument that the ICC has no jurisdiction is very substantial and heavy because it鈥檚 the opinion of two judges 鈥� one of them a chief judge,鈥� he explained.