by Daniel Long

 

Malacañang and Yellow-Pink propaganda claims that the Supreme Court has “ruled” in G.R. No. 238875 or PANGILINAN v. CAYETANO that the Philippines must cooperate with the ICC (International Criminal Court) regarding alleged crimes committed by Duterte when the country was still a member—even after its withdrawal—are misleading. These statements are merely obiter dicta, not actual rulings. Obiter dictum refers to comments made by a judge that are not central to the case and do not carry legal weight. They are unenforceable.

In the case of red-tagging, the Court only mentioned the issue in passing, without making it a key part of the decision. As a result, it does not create any binding rules or overturn earlier rulings. It remains a side comment, not a legal ruling. Let’s unpack the issue further.

Former Chief Justice Artemio Panganiban indirectly addressed this matter in his March 24, 2025, column for the Inquirer. He wrote:

“Undisputedly, the Philippine withdrawal from the ICC took effect on March 17, 2019. On May 24, 2021, then-ICC Chief Prosecutor Fatou Bensouda petitioned the Pre-Trial Chamber (PTC) for authority to conduct a preliminary investigation into the ‘situation’ in the Philippines from November 1, 2011, to March 16, 2019—a period when the Philippines was still an ICC member. On September 15, 2021, the PTC granted the petition. Notably, both May 24, 2021, and September 15, 2021, are more than two years after the Philippine withdrawal took effect on March 17, 2019. I respectfully agreed with the minority’s position because the Office of the Chief Prosecutor (OCP) is not an integral part of the ICC. Therefore, the OCP’s unilateral examination, which began on February 8, 2018, could not be counted as the start of the two-year prescriptive period. If this were not the case, why would the OCP need to secure authority from the PTC to start the investigation?”

In short, the ICC undermined its own position by opening its preliminary investigation two and a half years after the Philippine withdrawal took effect. This delay nullified the residual jurisdiction it had during the one-year window before the withdrawal took effect, as provided in Article 127 of the Rome Statute.

During the November 2024 Quadcomm hearing, former Duterte Executive Secretary Atty. Salvador Medialdea debated pro-ICC opposition lawyer Atty. Chel Diokno. Medialdea argued that the three ICC judges of the PTC who voted to commence a preliminary investigation did not properly consider the jurisdiction issue. Diokno disagreed, zeroing in on the fact that the two dissenting judges—who argued that the ICC no longer had jurisdiction—were outvoted. He then questioned Medialdea, asking how the ICC could issue a ruling if it no longer had jurisdiction over the Philippines.

Former Chief Justice Panganiban described the ICC’s decision best: “UNILATERAL EXAMINATION.” The ICC was acting like someone playing chess alone or making a phone call without the other party answering. Since the Philippines was no longer a member of the ICC—having withdrawn two and a half years earlier—it had no obligation to respond to the ICC’s unilateral decision to open an investigation. Panganiban reaffirmed this by stating: “Thus, the investigation and trial could no longer be conducted, as they were barred by the two-year prescriptive period.”

The “Burundi precedent,” which ICC-accredited lawyer Atty. Harry Roque has frequently referenced in his Philippine Star columns, concerns the African nation of Burundi’s withdrawal from the ICC.

In that case, then-ICC Prosecutor Fatou Bensouda announced a preliminary examination into alleged crimes against humanity in Burundi on April 25, 2016. Burundi subsequently withdrew from the Rome Statute on October 27, 2016, with its withdrawal taking effect one year later, on October 27, 2017. However, the Pre-Trial Chamber authorized the opening of a preliminary investigation on October 25, 2017—just two days before Burundi’s withdrawal officially took effect.

According to Article 127 of the Rome Statute, a withdrawing state remains bound by ICC obligations for one year after submitting its withdrawal. Since the ICC acted within this timeframe, Burundi was still required to cooperate. The action was not unilateral; it was in line with ICC rules.

The Philippine case is different. The ICC initiated its investigation long after the one-year withdrawal period had expired, making any claim to jurisdiction invalid.

Fortunately, British-Israeli ICC lawyer Nicholas Kaufman, who represents former President Duterte, has expressed confidence that the case will be dismissed. He recently stated:

“Coming back to the jurisdictional point, obviously, you don’t need to be the dean of a law faculty to realize that’s going to be a huge issue at pre-trial. I think the jurisdictional argument is compelling as defense counsel.”

At this point, Duterte’s fate lies in the hands of unelected foreign judges at the ICC. However, many Filipinos—including myself—remain optimistic about his vindication and eventual return to his homeland.

   

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