Philippines becomes second country to quit ICC

Gaea Katreena Cabico, Kristine Joy Patag - Philstar.com
Philippines becomes second country to quit ICC
This photo shows the International Criminal Court marking the opening of its judicial year with a Special Session at the seat of the Court in The Hague, Netherlands.
International Criminal Court

MANILA, Philippines — The Philippines on Sunday has withdrawn from the International Criminal Court, becoming the second country to leave the Hague-based tribunal meant to prosecute the world’s worst atrocities.

The move comes a year after Manila officially notified the United Nations that it was quitting the ICC—the only permanent international judicial body to try individuals for genocide, crimes against humanity and war crimes.

On March 16, 2018, the Philippines formally submitted its letter of withdrawal from the Rome Statute—the treaty that established ICC—after the tribunal’s chief prosecutor launched a preliminary examination into the alleged crimes against humanity of President Rodrigo Duterte and his men. An examination is different from an investigation.

The chief executive cited “outrageous” attacks on him and his administration and the supposedly illegal attempt by ICC Prosecutor Fatou Bensouda to place him under the Hague-based court’s jurisdiction as reasons for the country’s pullout.

The Philippines became the second nation to leave the ICC, following Burundi in October 2017. Gambia and South Africa followed suit both nations later reversed their decisions and have since rejoined ICC.

Despite the withdrawal, the preliminary examination launched by Bensouda in February 2018 would continue. The preliminary examination has four phases: initial assessment, assessment of jurisdiction, determination of admissibility and determination of interests of justice.

In an annual report on its preliminary examination activities released last December, the ICC said the Office of the Prosecutor has been conducting a thorough assessment of the information available to reach a reasonable basis to believe that the alleged crimes fall within the jurisdiction of the court.

In the same annual report, the Hague-based court insisted that “it retains jurisdiction with respect to alleged crimes that have occurred in the Philippines during the period when it was a state party to the statute.”

A total of 52 communications on the situation in the Philippines have been sent to the ICC, alleging that Duterte and other senior government officials promoted and encouraged the killings of suspected drug users and dealers.

Data from the government showed that more than 5,100 drug personalities had died in anti-drug operations since Duterte took office. The figure does not include deaths caused by vigilantes.

But human rights groups have higher estimates—more than 20,000 killed, mostly those living in urban poor communities.

No SC intervention

Two groups of petitioners—opposition senators and the Philippine Coalition for the ICC—ran to the SC to ask the court to declare the executive branch’s withdrawal as “invalid or ineffective” due to lack of concurrence from at least two-thirds of the members of the Senate.

Oral argument was held on the petitions, and the case was deemed up for decision after the parties submitted their respective memoranda, but the SC has yet to issue a ruling on the cases.

During the oral arguments, Senior Associate Justice Antonio Carpio said that the Philippines’ withdrawal from the ICC would deprive the country of a legal avenue to hold leaders of other nations accountable for incursions and invasion.

“Because we will be giving up this legal deterrent if we withdraw from the ICC we cannot bring president Xi Jinping to the ICC if he invades Pag-asa or builds a military base in Scarborough shoal. We will lose that defense. We will have no deterrent legally,” Carpio then said.

On March 12, the SC held its en banc session, but did not release any ruling related to the ICC petitions—it was the last full court session before the withdrawal took effect.

An insider told the STAR that this means that the withdrawal would take effect as the court had not issued a temporary restraining order before March 17.

“The withdrawal from ICC takes effect, without prejudice to the Supreme Court resolving the petitions later on and ruling on the prayer for the issuance of writ of mandamus,” the insider was quoted as saying.

The PCICC made a last-ditch effort on March 15 to urge the court to rule on their pleas, expressing their fear that with the withdrawal taking effect without the SC’s action, “those who kill with impunity will only be further emboldened.”

Government: Philippine courts are working

Justice Secretary Menardo Guevarra, however, said the ICC could not probe Duterte and his officials since Philippine courts are working. The international tribunal can only prosecute when States are unwilling or unable to do so genuinely.

Guevarra stressed that “our own investigative agencies and judicial bodies are functioning effectively, albeit slowly.”

Presidential spokesperson Salvador Panelo shared Guevarra’s sentiment and said that our courts are “willing and capable. We have a robust judicial system.”

Under the principle of complementarity in the Rome Statute, the ICC only acts when national courts are unable or unwilling to prosecute atrocities at home. Member states can challenge the "admissibility" of cases before the tribunal if they feel they can prosecute domestically.

Last year, a Caloocan court has sentenced three cops for killing Kian Loyd delos Santos, one of the victims in the government’s “One Time Big Time” operation in the area.

In the ruling, the Court said: “Never has homicide or murder been a function of law enforcement. The public peace is never predicated on the cost of human life.”

One of the communications filed before the ICC tribunal, however, told the case of JJ David, whom rights lawyers said, is a “victim of systemic and widespread attack.”

“There is a pattern, and there’s only one person for that: It’s Duterte,” lawyer Krissy Conti said.

JJ’s parents said in Filipino, in a TV interview last August: “In my view, it seems like it (Philippine justice system) has really been paralyzed so I thought of filing a case—maybe an international (court) can help.”

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