From Guevarra’s Defiance to Berberabe’s Dance: The ICC’s Philippine Power Play

By Louis ‘Barok‘ C. Biraogo — July 14, 2025

THE Office of the Solicitor General’s (OSG) newfound openness to reconsider the International Criminal Court’s (ICC) jurisdiction over the Philippines isn’t a Damascene conversion to legal principle—it’s a calculated political maneuver dressed in the starched folds of a barong. Under Solicitor General Darlene Berberabe, the OSG is tiptoeing toward cooperation with the ICC, a stark pivot from Menardo Guevarra’s defiant “no jurisdiction” stance. This shift, cloaked in legalese about “different events” and “Interpol commitments,” smells more like Marcos Jr.’s chessboard than a courtroom epiphany. Let’s carve into the legal, ethical, and political entrails of this move with the precision of a scalpel and the venom of a prosecutor’s closing argument.

1. The Legal Bloodsport: Jurisdiction as a Battlefield

The ICC’s jurisdiction over the Philippines is a legal cage match, pitting the Rome Statute {PDF) against Duterte’s sovereignty-soaked legacy. Article 127(2) is a steel trap: withdrawal doesn’t absolve a state of crimes committed while it was a party. The Philippines, a member from 2011 to 2019, is on the hook for Duterte’s drug-war bloodbath—12,000 to 30,000 dead, per human rights estimates. The Supreme Court’s obiter in Pangilinan v. Cayetano (2021) drove a stake through Guevarra’s denialism: “Even post-withdrawal, the ICC retains jurisdiction over pre-2023 crimes.” That’s not a suggestion; it’s a judicial anvil. Yet Guevarra’s OSG clung to the fiction that withdrawal erased the ICC’s reach, a stance that now looks like political theater to shield Duterte.

On the domestic front, Republic Act 9851 (Philippine Act on Crimes Against International Humanitarian Law) is a double-edged sword. Section 17 permits cooperation with the ICC, allowing surrender of accused persons, but doesn’t mandate it. Retired Justice Antonio Carpio gutted Guevarra’s evasions: “RA 9851 lets the ICC in—stop pretending otherwise” (Rappler, March 17, 2025). The counterargument—Article 17’s complementarity principle, which defers to “functioning” domestic courts—collapses under scrutiny. If Philippine courts are so “functional,” where are the convictions of high-ranking officials for drug-war killings? The silence is deafening. Not a single general or cabinet member has faced a gavel, only low-level pawns. The ICC’s claim stands: the Philippines’ justice system is either unwilling or unable to prosecute. Game, set, match.

2. The OSG’s Ethical Tightrope: Lapdog or Litigator?

Berberabe’s position is a high-wire act. She admits the OSG, as the government’s lawyer, must align with Marcos Jr.’s agenda—client loyalty under Rule 138 of the Rules of Court demands it. But she hedges: “If the client wants something wrong, the lawyer must say so.” So, is cooperating with the ICC “wrong”? The Supreme Court’s Pangilinan ruling says no—ICC jurisdiction is settled law. Defying it risks malpractice, as lawyers can’t enable unconstitutional acts. Berberabe’s waffling about “consulting the President’s legal team” suggests she’s less a litigator than a political weather vane, testing the winds of Marcos’ feud with Duterte.

Guevarra’s ghost looms large. His recusal, framed as principled—”The ICC has no jurisdiction; I won’t defend this farce”—was either a stand for conviction or a dodge to avoid the fallout. Carpio’s rebuttal cuts deeper: “You can’t ignore the Supreme Court’s ruling” (Rappler, March 17, 2025). Guevarra’s exit wasn’t ethics; it was expediency, leaving Berberabe to clean up the mess. If she defies the Court to placate Marcos, she’s not just a lapdog—she’s complicit in undermining the rule of law. The OSG’s duty isn’t to the President’s whims but to the Republic’s legal framework. Anything less is betrayal in a suit.

3. Political Dynamite: Marcos’ Chess Moves

Marcos Jr.’s claim that Duterte’s arrest was “just fulfilling Interpol commitments” is a masterclass in plausible deniability. RA 9851 requires judicial review before surrendering a national to the ICC, yet Duterte was whisked away on March 11, 2025, via an Interpol Red Notice. Bayan Muna v. Romulo (G.R. No. 159618, 2011) is clear: treaties can’t override sovereignty without due process. Skipping judicial review smells like a constitutional violation, a political dagger aimed at Duterte’s heart. Marcos’ “we had no choice” excuse rings hollow—Red Notices, per Sandiford v. UK (ECHR, 2014), aren’t arrest warrants but requests for cooperation. The Philippine Center on Transnational Crime’s clarification (March 20, 2025) that it was a “red diffusion,” not a full notice, only muddies the waters further (GMA News). Marcos didn’t just comply; he chose to.

Duterte’s allies cry “kidnapping,” but the ICC’s warrant, channeled through Interpol, has legal teeth—unless due process was ignored. Marcos’ gambit is clear: neutralize Duterte, his political rival, while cloaking it in international obligation. The cost? A potential nationalist backlash, with Senator Imee Marcos and Duterte’s base already rallying protests (Al Jazeera, March 17, 2025). This isn’t law enforcement; it’s a high-stakes power play, with the OSG as Marcos’ knight on the board.

4. The Fallout: Justice or Joke?

For the ICC, an OSG flip is a pyrrhic victory. It bolsters global accountability, forcing Duterte to face trial for alleged crimes against humanity. But it risks exposing the ICC’s Achilles’ heel: selective enforcement. The U.S. and Israel scoff at ICC jurisdiction over their own, yet cheer when it targets adversaries. If the Philippines cooperates, it legitimizes a system critics call a geopolitical cudgel.

For the Philippines, surrendering Duterte could torch his legacy—or ignite a nationalist firestorm. Magallona v. Ermita (G.R. No. 187167, 2011) warned, “Sovereignty isn’t a buffet—you can’t pick which international laws to follow.” Cooperating with the ICC might signal rule of law, but it also hands a cudgel to Marcos’ foes, who’ll paint him as a globalist puppet. The midterm elections loom, and Duterte’s base isn’t known for staying quiet. This could be justice—or a political circus with blood on the floor.

Recommendations: A Bench Slap for All

To the OSG: Stop the kabuki dance. The Supreme Court’s ruling is law, not a suggestion. Defend ICC jurisdiction or resign—half-measures only erode your credibility. Rule 138 doesn’t let you cherry-pick legal duties to suit Marcos’ vendetta.
To the ICC: Transparency is your shield. Publish the Red Notice details and prove due process was followed. If Marcos bypassed RA 9851’s judicial review, your case against Duterte risks crumbling under scrutiny.
To Marcos: Quit hiding behind “Interpol obligations.” Admit this is about burying Duterte—or brace for the constitutional fallout. Bayan Muna isn’t just precedent; it’s a warning. Sovereignty demands process, not expediency.

The OSG’s reconsideration isn’t a legal beacon; it’s a hit job on Duterte, wrapped in the veneer of international law. Berberabe’s hedging, Marcos’s obfuscation, and the ICC’s selective zeal expose a truth as old as the law itself: justice is a battlefield, and the Philippines is bleeding.

Key Citations

Rome Statute, Article 127(2): Establishes ICC jurisdiction over crimes committed during membership, despite withdrawal.
Republic Act 9851, Section 17: Permits cooperation with the ICC, including surrender of accused persons.
Pangilinan v. Cayetano (2021): Supreme Court obiter affirming ICC jurisdiction over pre-withdrawal crimes.
Rappler, March 17, 2025: EXPLAINER: What you need to know about ICC’s jurisdiction over Duterte
Bayan Muna v. Romulo (G.R. No. 159618, 2011): Treaties cannot override sovereignty without due process.
Magallona v. Ermita (G.R. No. 187167, 2011 ): Sovereignty requires consistent adherence to international law.
Sandiford v. UK (ECHR, 2014): Clarifies Interpol Red Notices are not arrest warrants.
Human Rights Watch, March 12, 2025: Estimates 12,000–30,000 drug-war deaths,
GMA News, March 20, 2025; No red notice only ‘red diffusion’ from Interpol for Duterte’s arrest — PCTC – Clarifies “red diffusion” for Duterte’s arrest.
Rule 138, Rules of Court: Governs lawyer-client obligations.

Disclaimer: This is legal jazz, not gospel. It’s all about interpretation, not absolutes. So, listen closely, but don’t take it as the final word.