President taps Harry Roque as private counsel

MANILA (UPDATE) — President Ferdinand "Bongbong" Marcos, Jr. on Wednesday convened his top legal officials to discuss the International Criminal Court’s (ICC) probe on the drug war in the country.

In a photo first shared Wednesday on Facebook by former presidential spokesperson Harry Roque, Marcos was surrounded by chief presidential legal counsel Juan Ponce Enrile, Executive Secretary Vic Rodriguez, Solicitor General Menardo Guevarra, Justice Secretary Jesus Crispin “Boying” Remulla, Foreign Affairs Secretary Enrique Manalo and the chief of the DFA Legal Affairs Office, Assistant Secretary Domingo Nolasco.

Roque, an ICC-accredited lawyer, confirmed to ABS-CBN News that he attended the meeting as “private counsel” to Marcos.

Roque had pushed for the Philippines to join the ICC, which finally happened in 2011.

But in defending former President Rodrigo Duterte’s drug war as then-presidential spokesperson, he said the ICC no longer has jurisdiction over the country after it withdrew from the Rome Statute in 2019, and the international body should not interfere with domestic affairs because Philippines courts are working.

It is not immediately clear why Marcos needs a private lawyer, given that he is not among the subjects of the ICC probe.

“PBBM is not a party. The state is the party, and it is represented principally by the OSG,” said Guevarra, who also served as Justice Secretary during the Duterte administration.

The Solicitor General said Marcos called for the meeting and the ICC probe was the “only official matter discussed.”

“The only agenda was the government’s position on the ICC investigation. But I’d rather leave it to the President to make any disclosure at this time,” Guevarra said in a message exchange with reporters.

An ICC Pre-Trial Chamber in September last year authorized the ICC Office of the Prosecutor to launch its probe on the thousands of killings in connection with Duterte’s drug war.

• ICC Pre-Trial Chamber greenlights probe on PH drug war, Davao killings

The probe also covered the killings in Davao from 2011 to 2016 attributed to a death squad, which allegedly provided the template for the drug war.

The ICC probe was halted in November last year following a request by the Philippine government.

But the ICC Prosecutor in June this year asked for the resumption of the probe after finding that the Philippines has not investigated or is not investigating crimes within the jurisdiction of the ICC.

• ICC Prosecutor wants to resume probe on PH drug war
• ICC Prosecutor suspends probe into PH drug war killings

The Philippine government has until Sept. 8 to file its comment.

While Guevarra declined to provide additional details about the meeting and the next steps the government would take, he clarified the Philippine government’s involvement in the ICC probe amid question on why the Marcos government is defending the actions of its predecessor.

“The state, as distinguished from the government or its officials, whether past or present, has a fundamental interest in the ICC case,” he said.

Part of the inquiry in the ICC probe is whether the killings were state-sanctioned or part of a State policy.

Remulla, who was guest at a Rotary Club of Manila gathering on Thursday, also mentioned the meeting with the President about the ICC probe but said “wait for Malacañang to make an announcement about our 'drift' in the ICC.”

But he shared his personal opinion which is consistent with the Philippine government’s stand.

“My personal opinion and it can be shared by some members or some people I met with yesterday, in my opinion, they have no jurisdiction over our country when it comes to these things they want to investigate because we are not anymore member of the ICC. If we are still part of the treaty, then we accede to the treaty. But we are not anymore part of the treaty. We have withdrawn from it,” he said.

ICC prosecutor Karim Khan has said that the intergovernmental organization has authority over alleged crimes against humanity that took place in the Philippines despite the country's withdrawal from the treaty that created the court.

Khan said in October last year that judges of the ICC Pre-Trial Chamber confirmed that his office "retains jurisdiction" on its probe of the drug war in the Philippines from July 2016, when Duterte took office, until March 16, 2019, when the country’s departure from the Rome Statute took effect.

The probe will also cover killings in the country from November 1, 2011 to June 30, 2016, when Duterte served both as Davao mayor and vice mayor since the Philippines was an ICC "State Party, from November 1, 2011 up to and including March 16, 2019", Khan said.

• Prosecutor: ICC has jurisdiction in PH drug war killings

Remulla said the Philippine government will comply with the September 8 deadline imposed by the ICC Pre-Trial Chamber.

“Our investigations are ongoing. They are not stopped. They are being pursued. If they ask for a report, we will give them a report out of comity, out of our friendship with them, out of decency. We will give it to them if they ask for it,” he said.

“But for us to say that we are under them now, I think is another matter. This has to be threshed out properly in international law. But we maintain our sovereignty,” he added.

Remulla said they sought Roque’s knowledge in international law.

“He cannot be appointed because he was a candidate for senator. So we are consulting him because he is the only Filipino lawyer on the roster of the ICC, and I think also the ICJ (International Court of Justice),” the DOJ chief said of Roque.

In a press conference on Thursday morning, Foreign Affairs spokesperson Ma. Tereza Daza said the DFA, as conduit of information from the ICC, was in the process of coordinating with the lead agencies DOJ and OSG about the next move of the Philippine government.

“The Philippines underscores that it has the primary jurisdiction to investigate and prosecute the crime against humanity allegedly being committed in the anti-illegal drugs campaign,” Daza said.

“As the court of last resort, the ICC complements but does not replace the national courts. It only operates in cases where national jurisdictions are unable or unwilling to prosecute,” she said.

Asked if there were plans for the country to rejoin the ICC, Daza said this would be subjected to consultations.

“Since we are in a period of transition, we will have to seek guidance. We are not the lead agency in terms of the ICC - it's actually DOJ and OSG and if you recall, the Solicitor General has actually mentioned that relative to this development and maybe other developments, further consultations would have to be undertaken,” she said.

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