OPINION: 17 senators backed the ICC, fully aware it could prosecute a sitting President

Raïssa Robles

Posted at Mar 20 2018 03:57 PM | Updated as of Dec 08 2018 08:31 AM


When 17 senators backed the International Criminal Court (ICC) concept in 2011, they fully knew what it meant. Eight of them were lawyers and weren’t stupid. In fact, one of them – Senator Aquilino “Koko” Pimentel III now the Senate President – topped the bar.

At that time, then-Senate President Juan Ponce Enrile had told them the possible serious consequence of “concurring in the ratification of the Rome Statute of the International Criminal Court” or ICC.

Nine of the 17 senators are still in power. Three of the nine are now very close allies of President Rodrigo Duterte: his Foreign Secretary Alan Peter Cayetano; Cayetano’s sister House Deputy Speaker Pia Cayetano; and Senate President Koko Pimentel, who is also president of Duterte’s ruling party PDP-Laban.

They knew fully well that a sitting Philippine President could be hauled before the ICC.

In fact, it was exactly what then-Senate President Enrile had warned them about on August 16, 2011, when Senator Miriam Defensor-Santiago sponsored on the floor what finally became known as Senate Resolution No. 57.

Enrile cast the lone dissenting vote to this Philippine commitment to concur in the ratification of the Rome Statute of the ICC.

By the way, the argument of Malacañang Palace that Philippine participation in the ICC was rendered invalid by “the glaring and fatal error of lack of publication of the Rome Statute” in the Official Gazette holds no water. Because what senators approved was not a law but a three-page Senate resolution “concurring in the ratification of the Rome Statute of the ICC.”

The Rome Statute was first signed by President Joseph Estrada way back in the year 2000, according to the late Senator Santiago in her August 16, 2011 sponsorship speech. After Estrada’s ouster, President Gloria Macapagal-Arroyo did not ratify it and send it to the Senate for concurrence. It was only ratified in 2011 by President Benigno Aquino III, who immediately forwarded it to the Senate.

Senator Miriam Santiago shepherded Senate Resolution 57
Senator Santiago shepherded the senators’ concurrence. She told them in her sponsorship speech that the Rome Statute was “the most important institutional innovation since the founding of the United Nations [and] a benchmark in the progressive development of international human rights.”

She explained that “Under Article 1: ‘It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern… and shall be complementary to national criminal jurisdiction.’”

Her co-sponsor Senator Legarda, now chair of the Senate Foreign Relations Committee, gushingly described the Rome Statute as “the ‘great leap forward’ in the Philippines’ growth as a vibrant democracy and in the country’s own campaign against impunity.”

Afterward, Legarda personally flew to the United Nations headquarters in New York “to deposit” the “ICC Rome Statute Instrument of Ratification”.

She marked this occasion with the photo below:

L-R: Senate Foreign Relations chair Loren Legarda; Philippine Permanent Representative to the United Nations Ambassador Libran N. Cabactulan; Arancha Hinojal-Oyarbide, Legal Officer and Andrei Kolomoets, Information Management Officer, both of the Treaty Section, UN Office of Legal Affairs.

Enrile warned colleagues about Rome Statute’s implications
When the matter came to a vote on August 23, 2011, Enrile voted “NO” and warned his colleagues that by committing to the Rome Statute, any sitting Philippine President could be prosecuted by the ICC.
According to the Senate Journal,

“He [Enrile] also doubted whether the President, although immune from suit during his/her term of office, could invoke such immunity before the International Criminal Court.”

“He reminded that part of the oath of the President of the country is to execute the laws, criminal laws in particular, and although no President of the Philippines has deliberately ignored the enforcement of criminal laws in cases of internal conflict, occasions had arisen in the past where the Commander-in-Chief had been accused of negligence or neglect in the enforcement of criminal laws based on claims of atrocities committed against the Filipino people even if such claims were untrue. He posited that if the conflict intensifies, it is not far-fetched that the same claims would again be raised and that the security forces of the country—especially the leaders of the Armed forces—-could be haled before the International Criminal Court to the detriment of the government’s internal efforts to protect the country.

“He said that while it may not happen that some or any of them would be finally condemned, they would still be exposed to all kinds of suits compelling them to spend a fortune in defending themselves, and subjecting them to worries while awaiting the verdict of the court that is outside the Philippine forum.”

That last paragraph indicates the serious aggravation that the 11 other officials named along with President Duterte in the ICC complaint could be facing. Unlike Duterte, all of them do not enjoy immunity from suit.

Interpellating Senator Santiago earlier on August 16, 2011, Enrile said that if the Senate backed the statute, “the Philippines would be duty-bound to serve the ICC’s warrant of arrest.”

He gave as a hypothetical example the case of then-Libyan Leader Muammar Gaddafi. The Senate Journal stated that in —

“the case of Muammar Gaddafi, Senate President Enrile supposed that the Philippines, as a state-party, would be duty-bound to arrest Muammar Gaddafi, in case he was in the country, there being an ICC warrant of arrest against him.”

“He [Enrile]expressed concern that the followers of President Gaddafi might retaliate against the Filipinos in Libya.”

Enrile’s warning turned out to be prescient.

On October 9, 2013, Kenya’s sitting President Uhuru Kenyatta became the first-ever head of state to appear before the ICC to face charges of committing crimes against humanity.

A year later, though, charges against Kenyatta were withdrawn for lack of evidence. The ICC said the Kenyan government had refused to give vital information for the case to prosper. 

Despite Enrile’s warning, 17 other senators voted to concur with the Rome Statute [NOTE – those with asterisk are lawyers]:

1. Allan Peter Cayetano*
2. Pia Cayetano*
3. Aquilino “Koko” Pimentel*
4. Vicente Sotto III
5. Miriam Defensor-Santiago, the main co-sponsor*

6. Panfilo Lacson
7. Francis Escudero*
8. Jinggoy Ejercito-Estrada
9. Gregorio Honasan II
10. Ferdinand “Bongbong” Marcos

11. Manny Villar
12. Sergio Osmena III
13. Antonio “Sonny” Trillanes
14. Teofisto “Tg” Guingona III*
15. Francis Pangilinan*

16. Edgardo Angara*
17. Ramon Revilla, Jr.

During the voting, Senator Alan Cayetano said he was reserving his right to submit a written explanation of his “YES” vote, but this is not in the Senate Journal that day.

Senator Loren Legarda, the co-sponsor, and Senator Lito Lapid were absent “on official mission” on the day of voting, while Sen. Ralph Recto sent word he was ill.

Two senators were present during the roll call but became absent during the voting: Franklin Drilon and Joker Arroyo (the latter probably would have voted “no” since he aired some objections during the Senate interpellation).

Please note that there were only 23 senators in 2011 since the 24th senator, Benigno “Noynoy” Aquino III, had become President in 2010.

So, the total vote count was: 17 “Yes”, 1 “No”, 5 ABSENT, but NO ABSTENTION among those present.

Why have most of the senators who voted YES not spoken up to defend their action?

Why the stunning silence?

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