Duterte throws out decade-long fight for the International Criminal Court

The Philippines’ withdrawal from the International Criminal Court (ICC) takes effect on Sunday, March 17, 2019, throwing out a long struggle that took 11 years.

The pullout comes a year after the government transmitted its notice of withdrawal to the office of the United Nations (UN) Secretary-General in New York, formalizing the announcement of President Rodrigo Duterte on March 14, 2018.

The Philippines signed the Rome Statute – the court's founding document – in 2000 under then-president Joseph Estrada. In 2005 under then-president Gloria Macapagal Arroyo, human rights advocates asked the Supreme Court to compel Malacañang to transmit the document to the Senate so it can be finally ratified.

It was only in 2011 – or 11 years later – under then-president Benigno Aquino III, that the Philippines finally became a member after the Senate ratified the Rome Statute.

The Philippines’ ICC withdrawal is important to discuss, especially because it concerns not just the current situation under the Duterte administration, but also the future available channels of accountability for Filipinos who need justice.

There are several questions surrounding the withdrawal and what it means to the Philippines. This page aims to help readers navigate the issues and arguments surrounding the pullout.

WHY DID DUTERTE WITHDRAW FROM THE ICC?

The President said that he decided to withdraw the country’s ratification of the Rome Statute because the Philippines was "made to believe that the principle of complementarity shall be observed, that the principle of due process and the presumption of innocence as mandated by our Constitution and the Rome Statute shall prevail, and that the legal requirement of publication to make the Rome Statute enforceable shall be maintained."

He insisted that the ICC does not have jurisdiction over him, claiming that the Rome Statute was never published in the Official Gazette, the official journal of the Republic of the Philippines. Thus it never took effect in the country.

Duterte’s decision to withdraw came after the ICC’s Office of the Prosecutor started its "preliminary examination" to determine whether there is sufficient evidence to establish that the case against Duterte falls under its jurisdiction. The Philippine president has been accused of crimes against humanity before the court.

WHY ARE GROUPS AGAINST THE WITHDRAWAL?

Several local and international organizations and individuals, especially human rights groups, condemned the withdrawal. They called the move “anti-people,” warning that it "exposes Filipinos to possible atrocious crimes without resort to justice and accountability.”

The Philippines' ICC withdrawal, meanwhile, is being challenged before the Supreme Court.

According to opposition senators who filed the first petition, Duterte cannot unilaterally withdraw membership of the Philippines in the ICC without the concurrence of the Senate.

There is no clear textual basis for withdrawal in the Constitution, but Senior Associate Justice Antonio Carpio said during oral arguments that the Rome Statute has been transformed into a domestic law that only Congress can repeal, and not by the President on his own.

The second group of petitioners, the Philippine Coalition for the ICC, added that the Rome Statute is jus cogens in character, or what is known as a peremptory norm or a compelling law that cannot be violated. Under the principle, a country cannot pass a local law that would violate the compelling law, or the Rome Statute in this case.

HOW IMPORTANT IS THE SUPREME COURT DECISION ON THE MATTER?

The ICC will not be able to do anything to stop the Philippine withdrawal. Only national authorities can reverse it – either the Duterte administration itself or the Supreme Court. (READ: PH out of ICC soon: Eyes on the Supreme Court to intervene)

In 2017, the South African High Court stopped its government’s withdrawal from the ICC, saying it was unconstitutional.

There are 4 ways that the Philippine Supreme Court can act:

1. Decide before March 17: Deny the petitions and uphold the legality of Duterte’s unilateral withdrawal, which, according to Associate Justice Francis Jardeleza, would stretch the power of presidential discretion.
2. Decide before March 17: Approve the petition and stop the unilateral withdrawal for being unconstitutional.
3. Let March 17 pass and deny the petitions for being moot and academic without a discussion on the merits.
4. Let March 17 pass and deny the petitions for being moot and academic but rule on the merits so there are guidelines for the future.

Lawyers say it’s better for the Supreme Court to rule on the merits, even if the ruling is not favorable to them, just so the rules can be clarified.

Human rights lawyers are appealing for the Philippines to stay in the ICC as insurance against impunity.

Carpio said that if the country leaves the ICC, it can no longer run after China for crimes of aggression if the super power militarizes the West Philippine Sea.

Carpio also said the ICC is the only venue to hold China accountable if that happens.

WHAT HAPPENS TO THE ONGOING PRELIMINARY EXAMINATION IF THE WITHDRAWAL TAKES EFFECT?

The ongoing preliminary examination can still continue because the alleged crimes that were brought to the attention of the Office of the Prosecutor occurred during the membership of the Philippines in the ICC.

Article 127 of the Rome Statute explicitly states that criminal investigations and proceedings that have been started – before the withdrawal came into effect – will still continue.

The court can also examine incidents that happened in the period between 2011 and March 2019 – the year the Philippines joined the ICC and when its withdrawal was finalized.

In the campaign against drugs, according to the Philippine National Police, there have been at least 20,322 killings by both policemen and vigilantes from July 1, 2016 to November 27, 2017 – an average of 39.46 deaths a day. The Supreme Court is examining documents of all these killings to assess whether the entire campaign against drugs is illegal.

In December 2018, the ICC Prosecutor said in a report that it will continue the preliminary examinations of alleged crimes against humanity, adding that the office “will also continue to record allegations of crimes committed in the Philippines to the extent that they may fall within the jurisdiction of the Court.”

Several other communications have been submitted to the ICC in connection with the killings. These documents detailed the horrors of the anti-illegal drug campaign and its effect on victims and their families.

WHEN THE WITHDRAWAL TAKES EFFECT HOW CAN THE ICC ACT TOWARDS THE PHILIPPINES?

The withdrawal would have one significant effect on the preliminary examinations – killings that will happen after March 16 can no longer be covered by Prosecutor Fatou Bensouda.

“Withdrawal will have the effect of preventing the Prosecutor from receiving (or seeking) evidence of events that transpired after 16 March 2019. The preliminary examination will be restricted to events covered in the February 2018 decision to open preliminary examination of the Prosecutor,” said lawyer Diane Desierto, Associate Professor of Human Rights Law and Global Affairs at the University of Notre Dame in the US.

If Prosecutor Bensouda decides to open an investigation, she can request ICC judges to issue either a warrant of arrest or at least summons for suspects to appear voluntarily. The subject of the summons may or may not be Duterte, but whoever it will be has the obligation to cooperate under the Rome Statute.

Article 127(2) of the Rome Statute says withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

In case of a warrant, under the Rome Statute, either the country turns over the subject, or other member-countries will help when the subject travels.

The track record of ICC proceedings indicate this would not be so easy to do.

Sudanese president Omar al-Bashir has evaded the ICC’s warrants of arrest for 8 years, and he has been able to travel abroad without being arrested.

In theory, the ICC can proceed to issue a sentence, enforceable under the general agreement that countries will continue to cooperate even after withdrawal. Whether or not the ICC can do something concrete to hold individuals accountable for crimes depend on one thing: good faith. Good faith that the countries will honor their obligations under the international law.

“In a time of increasing skepticism of the ICC, as well as questions relating to the ability to achieve justice through this court, the role of national courts in granting effective legal remedies is even more important,” wrote international lawyer Priya Pillai, who attended the hearings at the Supreme Court.

Strengthening local courts was a dominant sentiment on the Bench when the Supreme Court tackled the petitions. The justice-in-charge, Marvic Leonen, seems to be leaning towards upholding the withdrawal. Leonen also agrees that it is better to empower local courts to prosecute the killings.

“This Court should have a longer vista that political winds can change, and when that happens then it might be the reverse, that another group that does not want a future president’s policy will again want this Court to veto,” said Leonen.

Whatever happens, the world is now watching – if the ICC is not allowed to bring justice to living relatives of the dead, the Philippine justice system must step up to the task. – Rappler.com

Jodesz Gavilan

Jodesz Gavilan is a writer and researcher for Rappler and its investigative arm, Newsbreak. She covers human rights and also hosts the weekly podcast Newsbreak: Beyond the Stories. She joined Rappler in 2014 after obtaining her journalism degree from the University of the Philippines.

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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