Can PH return to ICC in the time of Duterte? ‘Yes, through void ab initio’
MANILA, Philippines – The Assembly of States Parties of the International Criminal Court (ICC) said on Tuesday, March 19, that it hopes the Philippines can rejoin the tribunal in the future.
“I sincerely hope that the departure of the Philippines from the Rome Statute is only temporary and that it will rejoin the Rome Statute family in the future,” assembly president O-Gon Kwon said in a statement Tuesday.
Can the Philippines rejoin the ICC, and when?
The Philippine Coalition for the ICC (PCICC) asked the Supreme Court (SC) to declare President Rodrigo Duterte’s unilateral withdrawal from the ICC void ab initio or void from the start, in an attempt to use the administration’s tactic against them.
“Petitioners respectfully pray that after due hearing, this Honorable Court declare as void ab initio the Philippine Notice of Withdrawal from the ICC formally deposited with the UN Secretary General on 17 March 2018 without parliamentary approval or concurrence of the Philippine Senate,” the PCICC said in its memorandum submitted to the SC after oral arguments.
No unilateral withdrawal
The PCICC argues that Duterte cannot withdraw from the ICC by himself without the permission of the Senate, a position supported by Senior Associate Justice Antonio Carpio.
“A treaty already transformed into Philippine law cannot be undone by the one-sided act of the President. Only the Senate can undo its own act, unless it is voided by the Courts,” said the PCICC.
The South African High Court ruled the same way when it blocked its government's withdrawal from the ICC. But the South African ruling came months before its withdrawal became effective.
The Philippine withdrawal, however, already took effect on March 17.
PCICC lead counsel Romel Bagares said that a void ab initio ruling from the SC will have a retroactive effect, or can undo the withdrawal although it had already taken effect.
“In such a case, the decision will have retroactive effect, reaching back into the 'original sin' of the executive when it submitted a notice of withdrawal to the UN without Senate concurrence,” Bagares told Rappler on Tuesday.
The SC has not issued any decision yet on two petitions seeking to declare as unconstitutional the unilateral withdrawal.
Bagares added that a void ab initio ruling from the SC would overcome the effectivity of withdrawal on March 17.
"International law processes at the UN allow the domestic system to correct itself, as due respect for state sovereignty," he said.
ICC Prosecutor Fatou Bensouda reiterated on Tuesday that she will continue the preliminary examination into the killings in Duterte's campaign against drugs. Experts, however, have warned that the proceedings will be difficult to conduct moving forward especially after Malacañang said it will deny ICC personnel entry into the country.
The Duterte administration has used the void ab initio doctrine to attempt to invalidate Senator Antonio Trillanes IV’s 8-year-old amnesty. A similar concept – quo warranto or by what authority – was also employed by the administration to oust former chief justice Maria Lourdes Sereno.
Associate Justice Marvic Leonen, the member-in-charge of the petitions, spoke of judicial restraint during oral arguments or the inclination of the Court not to void an act of the executive to avoid a bigger crisis.
The PCICC argued in its memorandum that “the concept of a political question, however, never precludes judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective right.”
“This is not about the President. This is about ensuring effective remedy for gross violations of human rights committed by parties to a conflict or to situations cognizable by the ICC,” pleaded the PCICC.
Read more stories, in-depth reports, and explainers on the Philippines and the International Criminal Court in our microsite here. – Rappler.com