NAAWAN, Misamis Oriental (MindaNews / 21 July) — Former top cop and now Senator Ronald dela Rosa is showing the jitters and is turning yellow. The chief architect of the Duterte drug war popularly known as “Bato,” an alias he adores because it projects hardness, strength and courage, is slowly crumbling in the face of an impending probe of the International Criminal Court (ICC) for alleged crimes against humanity together with his patron ex-president Rodrigo Roa Duterte.
Bato reveals how scared he was when as early as the campaign period of the 2022 presidential election he already sought help and assurance of protection from the erstwhile candidate Bongbong Marcos. He was elated when Marcos assured him that not a single strand of his hair would be touched by the ICC.
Bato probably realized recently that Marcos was making fun of him. The assurance was but a ridiculous joke. Alright, the ICC may not be able to touch a hair strand because he has none of it, but his bald head is for its picking. The sword of Damocles is dangling over it.
So he now comforts himself with the pronouncement of the Department of Justice that the ICC has no jurisdiction in the Philippines and cannot, therefore, claim his head. But such comfort is so thin because he is also aware that despite Duterte’s withdrawal of the country from the ICC in 2019, the alleged crimes they together committed before that, including their alleged killing rampage in Davao, is covered by the Rome statute.
He also found shelter in what some lawyers claim that the ICC cannot, in the name of fairness and respect for human rights, proceed with his trial if he would not cooperate and appear in its chamber.
But have they not heard of trial in absentia and ex parte proceedings? Once the court has notified an accused of the formal charges against him and ordered him to respond within a definite period, if he refused to respond for whatever reason, the court assumes jurisdiction and proceeds with the trial in absentia on the basis of the documents and evidence in its possession.
An ex parte proceedings can commence if the accused has not been handed over to the Tribunal by the state authorities; or has absconded or cannot be found and all reasonable steps have been taken by the Tribunal to inform him about the proceedings and to bring him to its chamber.
In absentia trials are a way of allowing the international community to pursue justice for grave crimes without permitting the absence of the accused to hamper its aims, and to fight against impunity, says Judge Ivana Hrdličková – President, Special Tribunal for Lebanon.
Trial in absentia ensures that the accused cannot delay the administration of justice by opting to be absent from the court.
In the absence of the accused at the time of the trial, the punitive aspect of international criminal justice is not assured certainty of fulfillment.
So, of what value then is international trial in absentia if any resulting sentence cannot or may not be enforced?
It is said that the punitive aspect is but one of the main aims of international criminal law. Other aims considered encompass bringing justice to victims and allowing for compensation; fostering reconciliation; creating a historical record; deterring future crimes; and ending the culture of impunity for grave crimes.
In principle all of these aims can be achieved, or at least considerably advanced, through in absentia proceedings. Trial in absentia can help ensure accountability and fight impunity, which is itself a goal of the international community in the development of international criminal justice.
The Philippine senate assures senator dela Rosa’s safety from ICC arrest. But Bato said that if worst comes to worst, he will be represented by fellow senator Francis Tolentino at the ICC. To avoid arrest, he would not travel to member countries of the Rome statute.
He said that to be safe he may now only travel between his hometown of Davao City and Manila.
Pity the man Bato, even without yet an ICC verdict or a proceeding, his freedom is already curtailed voluntarily.
(MindaViews is the opinion section of MindaNews. William R. Adan, Ph.D., is retired professor and former chancellor of Mindanao State University at Naawan, Misamis Oriental)