International Criminal Court

[ANALYSIS] Philippines in and out of ICC: What changed?

Winnie Monsod

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[ANALYSIS] Philippines in and out of ICC: What changed?

Winnie Monsod's blog on why the Philippines won't rejoin the ICC

Is there anything that happened to the ICC between 2011 and 2018 that would force us to withdraw and not rejoin? It is the Philippine government’s attitude that changed – most likely due to Rodrigo Duterte’s contempt for human rights and for human life, and President Marcos' unholy personal loyalty to him.

We are republishing this from with permission from the author

President Ferdinand Marcos Jr. (PBBM) recently declared that the Philippines would not rejoin the International Crime Court (ICC) under his administration. No cogent explanations, no reasons regarding national interest were given – the “we will lose our sovereignty” argument is neither cogent nor accurate as seen below. Note that he, as a Senator in 2011, concurred with the ratification of the Rome Statute of the ICC. 

Note further, Reader, that the withdrawal of the Philippines from the Statute and the ICC in 2018 was done by his predecessor, Rodrigo Duterte, in the same manner – no cogent explanations, no national interest justification. Duterte was the first to use the “we will lose our sovereignty” card.  

If national interests were not served, the moves by the presidents present and immediate past must have been done to serve strictly their own personal interests. 

At this point, the questions can be asked: If the past administration found it so easy to withdraw from the ICC and the present administration finds it so easy not to rejoin the ICC, then why did the Philippines become a state party to the Rome Statute of the ICC in the first place? Were there cogent reasons for it? Was national interest served by it? 

The answers can be found in the sponsorship speech by the late Senator Miriam Defensor Santiago, for the Senate’s concurrence with the ratification of the Rome Statute of the ICC. Santiago chaired the Senate Subcommittee on the Rome Statute, which is part of the Senate Committee on Foreign Relations. 

She starts with its rationale: “The Rome Statute of the International Criminal Court is arguably the most important institutional innovation since the founding of the United Nations. This complex and detailed international treaty provides for the creation of an international criminal court. Under Article 1: ‘It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern….and shall be complementary to national criminal jurisdiction.’” (emphasis mine)

Then she gives a historical background on why an international criminal court is needed, the main point being that “National courts have prosecuted war crimes. But prosecution is ineffective, when the suspects are still in power, and exercise power over their victims…..national justice systems are unable to be impartial.”

The ICC has jurisdiction is not only over war crimes, but genocide, crimes against humanity and aggression. But the principle is the same.

Defensor-Santiago then proceeds to recount how the ICC was created, and the role that the Philippines played in that creation: “In 1998, pursuant to two General Assembly resolutions, a diplomatic conference on the establishment of an International Criminal Court convened in Rome. It was attended by some 160 states, as well as by international organizations and non-governmental organizations. The most powerful camp among the delegates were the so-called ‘like-minded’ states, which opposed the 1994 draft by the International Law Commission, and which also opposed the views of the permanent members of the Security Council…..The Philippines was a member of that ‘like-minded’ caucus of states.”

This “like-minded” caucus of states successfully upheld the following principles: 

“Inherent jurisdiction of the Court over the so-called “core crimes” of genocide, crimes against humanity, war crimes, and aggression.  

“Elimination of a Security Council veto on prosecution.

“An independent prosecutor with the power to initiate proceedings motu proprio; and

“Prohibition of reservations to the Statute.”

The Philippines obviously played what we would now describe as an “activist” role. Imagine, fighting for all the above, trying to make the ICC as independent and as strong as possible. Compare that with the present stance of the Philippines, Reader.

The good senator then discussed the salient features of the Rome Statute. She emphasized that the Court will act only as a court of last resort. This means that the Court acts only in exceptional cases, where a country has failed to bring justice because it is unwilling or unable to investigate and prosecute those who have the highest responsibility for the most serious crimes of concern to the international community.

Related to this is the principle of complementarity adverted to in Art. 1 of the Statute, above. “Under the Statute Article 17, the Court will deem as inadmissible a case that is already being investigated or prosecuted by a state that has jurisdiction over it, unless the state is unwilling or is unable genuinely to carry out the investigation or prosecution. (Emphasis mine)

This is the crux of the current brouhaha. The Philippine government maintains that it has brought justice because it is willing and able to investigate Duterte, et al; but the Office of the Prosecutor has showed, and the Pre-Trial Court, and the Appeals Court of the ICC have decided, otherwise. Unfortunately, the Philippine government was unable to show any proof, but instead argues that it is the Prosecutor’s burden (this argument was shot down) to show proof of the government’s inability or unwillingness. So, Reader, what do you think? Do you think there has been even the slightest move by the Philippine government to investigate Duterte?

Another salient feature has to do with the subject matter of the ICC’s jurisdiction: the crimes have to be international crimes provided for under customary international humanitarian law; and genocide, crimes against humanity, war crimes, and crimes of aggression. And it is not the state that is responsible, but individuals (not minors). These may be a head of state, a member of the national legislature, and other government officials; further, in the case of a military commander, he assumes command responsibility, if he knew or should have known that the forces were committing or about to commit such crimes, or if he fails to take all necessary and reasonable measures within his power to prevent their commission. 

The senator also pointed out that the Philippines, “to harmonize Philippine law with the Statute”, passed R.A. No. 9851 ″An act defining and penalizing crimes against international humanitarian law, genocide, and other crimes against humanity, organizing jurisdiction, and designating special courts…” was passed (see my blog, So we don’t forget: Duterte’s case with the ICC). There is language in our law that is very similar to the language in the preceding paragraph.

To complete her sponsorship speech, Senator Santiago enumerates six reasons why the Senate should concur with the ratification, and four advantages derived from ratification.

Reasons for concurrence: 

1. The Philippines has a long-standing commitment to human rights and humanitarian law, starting from 1945 when it recognized the compulsory jurisdiction of the International Court of Justice (ICJ). She lists down all the major human rights and humanitarian law instruments to which the country is a party.

2. The ICC respects the sovereignty of its members states through the principle of complementarity, and will assume jurisdiction only over “the most serious crimes of international concern”.

3. While the International Court of Justice (ICJ) punishes only states, the ICC punishes individuals. It does not pass judgment on the state, its political ideology or group, or its army in conflict.

4. The Statute restores the so-called legal symmetry between conflicting parties to an armed conflict.

5. The Statute, in holding Filipino soldiers (and presumably other armed forces) to the highest international standards of military conduct, will promote a sense of professionalism in the armed forces, and a sense of antipathy to the culture of impunity.

6. By concurring with the Rome Statute, the Philippines will help to strengthen institutions like the ICC to end impunity (she emphasizes the culture of impunity in the Philippines) and affirms the position of the Philippines as a leading human rights advocate in Asia.

She then lists the various relevant government agencies who endorse concurrence: Department of Foreign Affairs, Department of National Defense, Department of Justice, Commission on Human Rights (CHR), Armed Forces of the Philippines, Office of the Solicitor General, and the National Security Council. The Philippine National Police apparently expressed reservations, but eventually endorsed concurrence.

Finally, the advantages of ratification, per Senator Miriam:

1. The Philippines would be able to influence the development of the Rome Statute and the ICC;

2. The Philippines would be able to nominate a Filipino who was one of the 18 judges of the ICC; 

3. It will put the Philippines in better position to protect Filipinos overseas, when they might suffer crimes against humanity in pursuing work abroad;

4. It will keep the Philippines abreast of contemporary developments in international relations.

One therefore has to ask: Is there anything that happened to the ICC between 2011 (when the Philippine Senate, including PBBM, concurred with the ratification of the Rome Statute) and 2018 (when the Philippines withdrew from the ICC), that would force us to withdraw and not rejoin? And the answer would be: the ICC remained the same. It is the Philippines, or rather the Philippine government’s attitude that changed – most likely due to Duterte’s supreme contempt for human rights and for human life, and PBBM’s unholy personal loyalty to him. With the exception of the CHR, all those government agencies that endorsed concurrence 2011 became in effect spineless – they were unable or unwilling to withstand Duterte’s abuses of power, much less investigate them. And they are still that way now.

Thus are government decisions made – and accepted without demur – in the Philippines. Wake up, Filipinos. Have we forgotten that sovereignty lies in us? –

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Solita “Winnie” Monsod was the first National Economic and Development Authority secretary appointed after the fall of the Marcos dictatorship in 1986. She is a professor emerita at the UP School of Economics where she taught starting 1983. She finished her degree in economics in UP and obtained her masters in economics at the University of Pennsylvania. She is a board director of Rappler Inc.

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