Philippines’ Withdrawal from the ICC

First and foremost, the ICC is a body found under the auspices of the
United Nations (UN), with the express purpose of avoiding the horrific mass
atrocities, which bedevilled sub-Saharan Africa (think of the Rwanda genocide)
and the Balkans (the violent dissolution of former Yugoslavia) and, more
broadly, shocked the world into action.

After intensive global discussions in the UN at the turn of the century, the
ICC was established at The Hague, in Netherlands, which also houses other
major international arbitration bodies such as The Permanent Court of
Arbitration (PCA). The goal of the ICC is to discourage or, in an event of
failure of deterrence, ensure accountability and justice when mass atrocities
occur, particularly genocide, crimes against humanity, and war crimes.

In 2011, the Philippine Senate ratified the Rome Statute, effectively

placing the country under the ICC’s jurisdiction. And the details of which are
actually accessible on the Official gazette of the Republic of the Philippines.

On March 19, 2018, the International Criminal Court ("ICC" or "Court")

was officially notified by the United Nations that the Republic of the
Philippines had on 17 March 2018 deposited a written notification of
withdrawal from the Rome Statute, the Court's founding treaty, with the United
Nations Secretary-General as the depositary of the Statute. The Court regrets
this development and encourages the Philippines to remain part of the ICC
family.

This decision is disappointing, yet unsurprising. The President has

repeatedly threatened to withdraw, and declared that the International Criminal
Court (“Court”) is being used as a “political tool”. Earlier in 2018, Chief
Prosecutor Bensouda opened a preliminary examination (“PE”) into whether the
Philippine Government is responsible for alleged crimes against humanity
committed in the “War on Drugs” from at least 1 July 2016 (“Situation in the
Philippines”). To date, Human Rights Watch estimates that the bloody
campaign has claimed over 12,000 lives.

Withdrawing from the Rome Statute is a sovereign decision, which is

subject to the provisions of article 127 of that Statute. A withdrawal becomes
effective one year after the deposit of notice of withdrawal to the United
Nations Secretary-General. A withdrawal has no impact on on-going
proceedings or any matter which was already under consideration by the Court
prior to the date on which the withdrawal became effective; nor on the status of
any judge already serving at the Court. Yet it is unclear whether President
Duterte has the domestic power to withdraw unilaterally from the Statute.
Before the Philippines ratified the Statute in 2011, at least two-thirds of
Senators had to give their consent under Section 21, Article VII of the 1987
Constitution for the treaty to become “valid and effective”. This Constitution is
silent on the treaty withdrawal process, and Senators have failed to pass a
resolution on whether it also requires their consent. Therefore, the Supreme
Court of the Philippines might be asked to determine if President Duterte has
the power to withdraw. When South Africa tried to withdraw unilaterally from
the Statute, this decision was revoked after the High Court ruled that it was
“unconstitutional and invalid”. For this post, I assume that the Philippines has
withdrawn from the Statute.

Article 127(2) of the Statute determines the Philippines’ obligations to the

Court after its withdrawal. It seeks to prevent States from using withdrawal to
avoid jurisdiction, once they are under scrutiny from the Court (Klamberg, p.
757), by giving effect to Article 70(1)(b) of the Vienna Convention on the Law
of Treaties, which stipulates that the termination of a treaty “does not affect any
right, obligation or legal situation of the parties created through the execution of
the treaty prior to its termination”. Article 127(2) states that: “A State shall not
be discharged, by reason of its withdrawal, from the obligations arising from
this Statute while it was a Party to the Statute, including any financial
obligations which may have accrued. Its withdrawal shall not affect any
cooperation with the Court in connection with criminal investigations and
proceedings in relation to which the withdrawing State had a duty to cooperate
and which were commenced prior to the date on which the withdrawal became
effective, nor shall it 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” (emphasis added).

A State party may have two ongoing obligations after its withdrawal,
which I analyse below in relation to the PE into the Situation in the Philippines.
A State party must cooperate with “criminal investigations and proceedings”
which were commenced prior to the date of the effective withdrawal. PEs are
probably excluded as they precede criminal investigations. Although it does not
state when an investigation commences, the Pre-Trial Chamber (PTC)
concludes that an investigation clearly has commenced with the decision to
authorise it (para. 26). Thus, it is expected that the Office of the Prosecutor
(OTP) will move quickly so that the Court may authorise a formal investigation
into the Situation in the Philippines before 19 March 2019

All is not lost for victims in the Philippines. Regardless of whether or not
the Court authorises an investigation before the date of effective withdrawal, the
Philippines remains a State party until then. Therefore, the Court has
jurisdiction over crimes within its jurisdiction that may have been committed in
the Philippines or by nationals of the Philippines up to and including the date of
effective withdrawal. These crimes are also not subject to any statute of
limitations (Article 29 of the Statute). Accordingly, the Court may authorise an
investigation into the Situation in the Philippines or other alleged crimes within
these limits at any time.

However, even if the Court approves an investigation before the date of

effective withdrawal, the Philippines is unlikely to cooperate under Article
127(2) of the Statute. In fact, President Duterte has given express orders to the
contrary. This does not diminish the importance of States respecting their
obligations, but it follows that the OTP faces greater hurdles in carrying out its
duty. Under a more amenable Government, the Philippines may freely choose to
cooperate with the Court, even when it is not legally obliged to do so. For
example, the Philippine Government has compensated victims under the Marcos
dictatorship of the 1970s and 1980s.

In 1989, Trinidad and Tobago proposed the creation of an international

criminal court to address drug trafficking. It is with a twinge of irony that the
resulting Court will now be (rightly) used to seek justice for drug dealers and
addicts who have been allegedly murdered in the War on Drugs.

The Philippines’ decision to withdraw from the Statute is disappointing and

disturbing. Every day that President Duterte’s brutal campaign against drugs
continues, the body count swells and impunity reigns. Thankfully, even if an
investigation is not approved before the date of effective withdrawal and the
Philippine Government refuses to cooperate, the Court will always have
jurisdiction over these alleged crimes.