KAREN: Joining us on the line right now is Presidential Spokesman Harry Roque, who once actually lobbied for the Philippines inclusion to the ICC. And my question is, has he changed his view now that he is with the administration?
Secretary Roque, good morning to you, sir. Can you hear me?
SEC. ROQUE: Good morning. Certainly not, I do acknowledge I was at the forefront for ratifying the ICC. I was convener of the Philippine coalition for the ICC. I filed cases to compel us to become a member of the ICC. But I agree with the decision of the President. I spoke twice about this matter into assembly state parties of the ICC, both fell on deaf ears ‘no. I spoke two years ago—
KAREN: What did you say, Secretary?
SEC. ROQUE: I said that the basis of consent for the 124 states that became a party to the ICC is the principle of complimentarily. By becoming a member of the court, the states did not waive their sovereignty but only reserve jurisdiction of the court when domestic courts are unable or unwilling.
And under the circumstances, there is simply is no unability or unwillingness as far as Philippine courts are concerned. Our courts are open and although we have immunity for the President, that extends only for the tenure of office of the President. As you know, we jailed two Presidents immediately after their tenure.
So, the Philippine Court are neither unwilling nor unable and therefore the exercise even of the prosecutor’s power to conduct a preliminary examination—this is not a case yet. I heard you are guessing, this is already been merited to the case, that’s wrong, that’ absolutely wrong. This is not even part of the formal of procedure of the court yet. But as a matter of principle, the fact that they started preliminary examinations already violates the very fundamental basis by which we gave our consent to be bound by the ICC. And the fact that I have articulated points while in the assembly state of parties no less, should have made this matter very clear to the prosecutor that we will not take this sitting down.
Now, what I am afraid and what makes me sad is that the Philippine withdrawal I’m sure will start in avalanche of other states leaving the courts, because no one will tolerate an unaccountable prosecuted on that, given a preliminary examination in brazen… a violation of the principle of the complimentarily.
And secondly, no other ASEAN will join the ICC now, because it is only the Philippines that has taken on the role of basically advocating that other country in the region should become a member of the ICC. This is the beginning of the end of the court, unfortunately.
KAREN: That is a very strong statement, Secretary Roque for you to say that this is the beginning of the end of the ICC. I mean, I think so far – correct me if I am wrong – only Burundi has withdrawn from the ICC and it’s the same situation, the ICC instigated or started an investigation against its leader. Which countries do you see following suit?
SEC. ROQUE: Karen, in the first place we don’t have universal ratification. There is only 124 countries out of 197 countries on earth… 198 na pala, because South Sudan became a separate state. So, you only have a simple really majority of states becoming members and the major powers like the United States, Russia, China are not even members to the court.
In Asia, in South East Asia, it’s only Cambodia and Timor Leste. You talk about acquiring jurisdiction over the person of the President, even assuming there is a case, who’s going to apprehend him, considering that countries… or the ICC only relies on the cooperation of the part of the state parties. You think Cambodia, Timor Leste will arrest the President? Come on! What’s important now is there is country such as Indonesia, Thailand, countries that we have been convincing to join the ICC will never join the ICC. Perhaps the Indonesian and the Thailand is now are telling now “see, we told you, not to join the court, what happen to you now.”
The issue always is you have an unaccountable prosecutor, who may or may not honor the states basis for consent which is complimentarity and what do you do when the prosecutors goes over bound, over steps her authority and conducts an investigation in a member state where domestic courts are able and willing, that’s the quandary of the court.
KAREN: But then, this is such a turned around from your point of view in your blog and I am gonna read for the sake of the viewers.
SEC. ROQUE: Don’t even read it, Karen. Karen, don’t even read it, because I advocated membership in the court. I agreed but I also agree with the decision of the President. The prosecutor went beyond the scope of the authority. She violated the President of our state.
KAREN: But Secretary, I need to read this part, because you said, after 11 years to be candid, I never thought that membership in the ICC was possible and you said, this is because of the many atrocities under both Marcos and Arroyo regimes that remain unpunished.
SEC. ROQUE: That’s true, that’s true Karen ‘no.
KAREN: Yeah, so in other words, won’t you have the same point of view? In other words, you advocated protection for the people. You said that because there was no ICC in effect, then the atrocities under Marcos and Arroyo remained unpunished. Wouldn’t you want the ICC then to just hear the case and if President Duterte is not guilty of anything, what does he have to be afraid of, when you yourself said that it benefits the country to be part of the ICC?
SEC. ROQUE: Well, Karen. I am not going to argue with you. I am not going to argue over what I said, but remember the quest for justice is not solely the jurisdiction of the ICC. In fact, the primary jurisdiction should be domestic court. So domestic courts should be allowed to function and what I am saying is that our domestic courts are functioning and that is why you must not violate the very basis of consent by which a party became… a state became a party to the ICC.
None of the things I wrote in the past. I have not revoking that. I am not going away from anything I said. I am just saying, it’s very clear that it is only when domestic courts are unable and unwilling should the ICC to exercise jurisdiction because that is the very essence of sovereignty. And of course, I am proud to say as a member of the Philippine Bar that the Philippine Courts, Philippine institutions can take on any case against President Duterte if there’s evidence that warrants it.
But look at the complaint filed by the complainants. In the first place, they are only hear say evidences that this guy who is unbelievable. What are they did afraid of? File it in the Ombudsman, the Ombudsman even if she cannot file any criminal case against the sitting president, can certainly recommend impeachment. But none of them have done that.
Why they have not done that? Because they know they don’t have to present evidence. So—you know the importance of accountability remains. The only issue is: where will you get it? And what I am saying is, we can have here in the Philippines, we should have it in the Philippines.
KAREN: All right. But to answer that, you also have a lower House wherein most of the congressmen there support President Duterte+. So that’s a whole other issue. But what I wanted to ask you—
SEC. ROQUE: Yes, but that’s not fair, because the Ombudsman has never recommended any impeachment in the history of the Ombudsman itself. So I don’t think we should prejudge our congressmen on how they will act if there is the positive recommendation from the Ombudsman to proceed with impeachment. And besides, if we have impeached a sitting President in the past, Ii can be done, come on.
KAREN: Okay. Secretary, people ask, who advises the President on these things? I want you to take us through the process. Did President Duterte ask your advice in withdrawing the Philippines from the ICC? Because what’s interesting is, under Article 127, it says that a state shall not be discharged by reason of its withdrawal from the obligations arising from the Rome Statute. And it also says there quite clearly, it takes affect a year after the UN Secretary General receives notice.
So you have experts saying, what’s the point? Why did he have to do this? He seems afraid! He already looks guilty, when there’s a whole year that the ICC will still investigate anyway.
SEC. ROQUE: You know, that’s again, erroneous! Whoever your expert is, is not an expert. There is no case pending against the President right now. A preliminary examination is not a case; it’s not even a preliminary investigation. We could leave now, and if within one year there is no preliminary investigation, then the ICC cannot proceed any further.
Now, we cannot predict how the ICC prosecutor or the court will proceed from hereon, because they know the effect of the withdrawal of the Philippines on what they want which is universal ratification. What is the point of having a court where only small states are members, where only European states are members? They know that from a policy point of view (unclear) and that is why no one should say or could predict what (unclear) can do. But as far as the withdrawal is concerned, the pending preliminary examination is not a case. If within one year there is no preliminary investigation, there is no case in the ICC, we could leave and the case dies.
KAREN: Okay. Secretary, a technical question: If the ICC continues its preliminary investigation, you still have the complainant – Attorney Jude Sabio – if they decide to continue with the preliminary investigation despite the Philippines withdrawing from the ICC, can they still do that?
SEC. ROQUE: They can do that if they want. But how do they acquire personal jurisdiction over the President? There’s already a sitting President who is accused in the court and they can’t do anything to apprehend him. You know the cases that brought with court are only those referred by the Security Council, or cases referred by state parties themselves. And I think the court knows that attention is on him because they have look like inutile body which defeat the very purpose of having the court.
So all I’m saying now is, it was policy that’s directed or dictated the Philippines’ withdrawal because there’s a violation of our consent, the reason of which we became party. And the court now will decide also on the basis of what is best for the court, to encourage more countries to become members of the court or to encourage countries to hear the court. So let’s wait for the pronouncement of—
KAREN: Okay. Secretary, quick question: Did President Duterte asked your advice to withdraw from the ICC? Were you consulted in any way?
SEC. ROQUE: Yes, I gave the opinion that what the prosecutors did was very wrong. I spoke about it twice. He personally received my message at The Hague when I went there two years ago. She said, you know, through her assistant that she will write a letter of—not really a letter of apology, but a letter, a communication explaining that she is not persecuting the President. We never got the letter.
I spoke again in the Assembly of State Party in New York, and warned about the same thing. It became unheeded. Even proceeded to preliminary examination! This is it! And I can tell you, everyone is panicking at The Hague right now in the Assembly State Party because they know that the possible avalanche of what I just warning you about may just happen. Because states do not take it lightly that an international tribunal will exercise primary jurisdiction when the court’s jurisdiction was only intended to be the court of last resort.
KAREN: All right. Now, so you are convinced that President Duterte will have these impact on other counties, following suit and withdrawing?
SEC. ROQUE: Because as I said, three other countries wanted to withdraw already. And you’re only talking of a membership of hundred twenty-four. Included in the number of countries that wanted to leave was South Africa, the power house in Africa. Just because it has relented for the time being, does not erase the fact that it has filed a notice that it wanted to leave the court.
KAREN: Okay. Now, what is the disadvantage of not being a member of the ICC? According to Attorney Tony Lavinia, former Dean of the Ateneo School of Government, he said, it will pose a disadvantage if Filipinos living or working abroad are subjected to war situations. He says if war crimes are committed against our people, we will have no recourse in the ICC because we are not a member anymore. Do you agree with that?
SEC. ROQUE: Certainly not. That’s why you have to look at the expertise of individuals talking. That’s not true.
As I’ve said, the only effective prosecutions in the court were those made by the Security Council itself and it is under Chapter 7. So if there is a threat to international peace and it is referred by the Security Council to the court, it will be acted upon notifies all member countries of the UN and not just member countries of the International Criminal Court. That’s again a Rome—
KAREN: Secretary, yeah, I’m curious if right now you’re saying it seems that the ICC does not have that much power. I mean, re-interpreting it to you saying that it’s not that important. I wanted to ask you, why were you so happy when the Philippines became a member? Because even Laviña said, it’s the reason why Harry Roque fought for us to become a member of the ICC.
SEC. ROQUE: Because I wanted to strengthen the court. I wanted to strengthen the court with additional membership. Obviously, when the Philippines became, we became an additional member, and the goal is universal ratification.
KAREN: But you must have seen some advantage to being a member to the ICC, sir, because you would not have been so vocal?
SEC. ROQUE: Look, I’m not going to argue when I’m on the phone and you are on camera. You want it! Let’s have a face to face argument, fine! You know me. I never ran away from an argument. But you can’t argue in this manner. I’m at a disadvantage, I’m only in the phone, be fair. I will go there one-on-one, we can argue if you want.
But for now, I’m expressing it, there are advantages but the court violated our basis of basic consent. I’m not taking back anything I said which is the advantage of the ICC, but the prosecutor was wrong and she knows it, and the court will know it and we will see how the court will decide on this case.
KAREN: All right, on that note, Secretary Harry Roque, thank you for being a good sport. And I will have you on the show soon. All right, thank you sir.
SEC. ROQUE: Yeah. But if you want to argue, face to face. Come on, this is not right, you know.
KAREN: Yes, definitely, argue face to face. Thank you. Thank you, Secretary.
SOURCE: PCOO – NIB (News and Information Bureau)