Supreme Court of the Philippines

Now moot, Supreme Court junks case vs Duterte’s ICC pullout

Lian Buan

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Now moot, Supreme Court junks case vs Duterte’s ICC pullout
(3rd UPDATE) The Supreme Court provides guidance for the future. It doesn't affect the ongoing ICC procedures, at least as far as the ICC is concerned.

Two years after President Rodrigo Duterte’s unilateral withdrawal from the International Criminal Court (ICC), the Supreme Court junked the petition questioning the validity of such action because the issue has become moot and academic.

This was confirmed to Rappler by sources privy to discussions in the virtual en banc session held Tuesday, March 16.

The voting was unanimous, informed sources said, and the decision would lay out guidelines on when the president can unilaterally withdraw the country from a treaty.

The guideline is an application of a unique Supreme Court discretion on how to clarify rules and processes despite the issue having become moot.

“The decision acknowledged that the President, as primary architect of foreign policy, is subject to the Constitution and existing statute,” said Supreme Court Spokesperson Brian Keith Hosaka, confirming the action.

“Therefore, the power of the President to withdraw unilaterally can be limited by the conditions for concurrence by the Senate or when there is an existing law which authorizes the negotiation of a treaty or international agreement or when there is a statute that implements an existing treaty,” Hosaka added.


The main contention to the unilateral withdawal is whether Duterte is legally required to get the concurrence of the Senate to pull out of the ICC.

There is no clear textual basis for withdrawal in the Constitution. There was only a requirement for concurrence of two thirds of the Senate to ratify.

In a report in December 2020, ICC Prosecutor Fatou Bensouda said there is reasonable basis to believe that crimes against humanity were committed in Duterte’s war on drugs.

One of the sources said there is no ruling that could put the ICC preliminary examination in question, as what was feared by other lawyers who expressed concern that the ratification of the Rome Statute itself may be voided.

Duterte unilaterally withdrew from the ICC as a reaction to the opening of a preliminary examination into human rights abuses here. This will not affect the ongoing examination, and the impending decision on whether to take the next step, at least as far as the ICC is concerned.

The Rome Statute says proceedings opened before a country’s withdrawal can continue even after such withdrawal from the ICC.

The decision, which is yet to be published as of posting, is 100 pages long.

The ICC is on track in deciding within the first half of this year whether or not to open the crucial phase of investigation, where summons or warrants can be served.

Romel Bagares, counsel for petitioner Philippine Coalition for the ICC, said the guideline “should help” as Duterte also unilaterally revoked another crucial treaty, the Visiting Forces Agreement (VFA), with the Americans.

The Duterte government, however, suspended the revocation in June 2020 and again in November 2020. Negotiations are ongoing.

“One thing that has not been mooted has also been very costly to many – the killings that the ICC Office of the Prosecutor is investigating. The killings continue to rage and have expanded to claim the lives of lawyers and human rights defenders,” said Bagares.

“We hope the Court can indeed work to safeguard human rights pursuant to its rule-making powers under the Constitution,” he added.

Hosaka said, quoting the decision penned by Associate Justice Marvic Leonen: “The Court also noted that the judiciary has enough powers to protect human rights contrary to speculations raised by the petitioners.”

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.