MALAYBALAY CITY (MindaNews / 14 May 2026) — No, this isn’t about the merits of the case against Senator Ronald dela Rosa before the International Criminal Court (ICC) but an attempt to respond to views that surrendering him to the tribunal — like the Philippine authorities did to former President Rodrigo Duterte — would violate the principle of sovereignty.

It may help to settle the controversy by appreciating the ICC’s standing in relation to the 1987 Constitution, the Philippines’ obligations under international law, and the nature of the court as a creation of the Rome Statute, the ICC’s founding treaty which the country was a party to from November 1, 2011 until March 17, 2019.

Section 2, Article II (Declaration of State Principles and Policies) of the Constitution states: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” [underscoring mine] Generally accepted principles of international law include customary international law, or acts and practices deemed as obligations and accepted as law.

The underlined portion in the preceding paragraph refers to the country’s obligation to honor and fulfill its commitments as a member of international bodies like the UN. Such an obligation includes upholding the terms of treaties and other agreements, especially those pertaining to human rights and International Humanitarian Law (IHL), two interrelated fields, although applied in distinct situations.

To give flesh to its international commitments as enshrined in the Constitution, the Philippines enacted Republic Act 9851, the law on Crimes Against IHL, Genocide, and Other Crimes Against Humanity, in 2009. Two years after, the country ratified the Rome Statute.

Besides, the Philippines is a party to most, if not all, UN human rights treaties, the Geneva Conventions of 1949 and its Additional Protocols. And, as mentioned earlier, it used to be a party to the Rome Statute until the Duterte administration decided to withdraw from it.

Yet, Article 127(2) of the statute provides that a withdrawal SHALL NOT discharge a state from obligations arising from the statute while it was still a party to it. These obligations include criminal investigations that were initiated prior to the date the withdrawal became effective.

The Supreme Court, in Pangilinan et al vs Cayetano et al (2021), dismissed petitions questioning the validity of the Philippines’ withdrawal from the statute. But the court, while upholding that withdrawal from treaties needs Senate concurrence, also upheld Duterte’s decision to withdraw, saying it has become theoretical because the ICC has already accepted it.

Notwithstanding the decision against the petitions, Senior Associate Justice Marvic Leonen made an obiter dictum. He said: “Mechanisms that safeguard human rights and protect against the grave offenses sought to be addressed by the Rome Statute remain formally in place in this jurisdiction. Further, the ICC retains jurisdiction over any all acts committed by government actors until March 17, 2019. Hence, withdrawal from the Rome Statute does not affect the liabilities of individuals charged before the ICC for acts committed up to this date.”

(An obiter dictum is an opinion, remark, or illustration expressed by a judge in a decision that is not essential to the resolution of the case.)

Still, despite the clear language of Article 127(2) in the Rome Statute the question of sovereignty remains a leading argument used by lawyers and supporters of Duterte and Dela Rosa, who is facing arrest and the possibility of following the former leader to The Hague for alleged crimes against humanity linked to the bloody “war on drugs.”

Also, Section 17 (Jurisdiction) of RA 9851 provides:

“In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.”

This part implies the recognition by those who crafted the law that there may arise in the future a situation where obtaining justice through domestic legal remedies becomes next to impossible. Note that RA 9851 was enacted in 2009, eleven years after the Rome Statute was adopted. Apparently, the lawmakers who deliberated on the bill were already literate about the Rome Statute. Else, they would not have thought of Article 17.

It could be a fruit of the realization that the scale of justice in the Philippines heavily tilts toward influence, money, and political pressure. The case of Dela Rosa, for example, has shown that those with enough political clout can flout the law, vindicating the prosecution’s argument in the ICC case against Duterte that “drug war” victims cannot expect to find justice here given such a condition.

So, is the ICC a foreign court?

For those who say “yes,” the confusion arises from the mistaken notion that the ICC is a tribunal under the jurisdiction of a particular country, Netherlands, because it is stationed there.

Why, detractors here in the Philippines even gloss over the fact that ICC judges and prosecutors come from various countries. At one time, the late Senator Miriam Defensor-Santiago had served as an ICC judge but had to resign due to an illness.

It has not been understood by many that the ICC is an intergovernmental organization created under a treaty, and that The Hague was chosen as its headquarters because, just like Switzerland, it is recognized as a center of international law. The International Court of Justice and the Permanent Court of Arbitration are also located there. But, as an intergovernmental institution, it can sit elsewhere if deemed appropriate by the member states — theoretically, even in the Philippines granting we had remained a member.

(MindaViews is the opinion of MindaNews. H. Marcos C. Mordeno can be reached at boymords@mindanews.com.)