Pleas vs ICC withdrawal pending at SC as exit effectivity nears

MANILA, Philippines (Updated, 3:31 p.m.)  — The Supreme Court is set to meet in a full court session on Tuesday, March 10, its last before the Philippines’ withdrawal from the International Criminal Court takes effect on March 17,  as two petitions challenging the withdrawal remain pending.

Opposition senators and the Philippine Coalition for the ICC challenged the executive branch’s action before the SC but the tribunal has yet to resolve the pleas more than six months since it held oral arguments on them.

It is unclear if the Supreme Court will tackle the petitions on Tuesday since cases on the en banc’s agenda are not made public.

READ: Highlights from the oral arguments on ICC withdrawal

President Rodrigo Duterte announced that the Philippines is withdrawing its ratification of the Rome Statue, which created the ICC, weeks after the international tribunal announced that it is conducting s preliminary examination into allegations of crimes against humanity in the country.

A preliminary examination involves determining whether the ICC has jurisdiction over the allegations. It is different from a preliminary investigation conducted by proescutors in the Philippines.

Palace: No withdrawal, ICC 'never acquired' jurisdiction

Presidential spokesperson Salvador Panelo on Monday insisted that the ICC has never acquired jurisdiction of the Philippines since laws must be published in the Official Gazette or a newspaper of general circulation to be valid.

“The letter was a matter of courtesy,” Panelo said, adding that the country did not “withdraw.”

“They cannot be doing any investigation, because it never acquired jurisdiction over the Philippines,” the Palace spokesman also said.

Panelo also pointed out that Philippine courts are still functioning, which goes against the ICC rule on “complementarity.” The international tribunal can only prosecute when States are unwilling or unable to do so genuinely.

He stressed that our courts “are willing and capable. We have a robust judicial system.”

Lawyer Ruben Carranza, director for the Reparative Justice Program of the International Center for Transitional Justice, however said that the withdrawal would not affect the ICC's examination into the 52 communications over extrajudicial killings in the country filed before the tribunal.

“It doesn’t mean that with the withdrawal, officials of the Philippine government who have previously been warned by the prosecutor that they might be investigated or prosecuted can no longer face the possibility of prosecution,” Carraza said in an interview with ANC on Sunday.

'Embarassing' legal argument

Carranza also pointed out that the executive branch’s insistence that the Philippines’ membership is moot due to the alleged non-publication of the Rome Statute in the Official Gazette, is an “embarrassing” legal argument.

He argued: “Why is the Philippine government challenging the petition filed by the opposition senators in the Philippine Supreme Court questioning the withdrawal?

EXPLAINER: Publication not among usual requirements for treaties, agreements

“They can just leave it alone... The Philippines contributed money to the ICC, The Philippines nominated a judge to the ICC,” added the lawyer.

READ: International jurist knocks Palace reasoning on ICC withdrawal

In its annual report on December 2018, the ICC said that its Office of the Prosecutor has been conducting a thorough factual and legal assessment of the information available in order to reach a reasonable basis to believe that the alleged crimes fall within the jurisdiction of the court.

“The office has further closely followed relevant developments in the Philippines and will continue to do so,” it added. — Kristine Joy Patag