Fact check: Philippines has obligations despite leaving ICC in 2019
MANILA, Philippines — Contrary to claims by the Marcos administration, the Rome Statute allows the International Criminal Court jurisdiction over alleged atrocities that took place when member-states were still parties to the court, even after they have pulled out of the ICC.
CLAIM: President Ferdinand Marcos Jr. and his officials have claimed that the ICC no longer has jurisdiction over allegations related to the "war on drugs", while the country's own courts are "able and willing" to investigate killings in the drug war. They said this removes the country's obligation to cooperate with the ICC probe.
RATING: These are false.
FACTS: The provisions of the Rome Statute — ratification of which Marcos Jr. supported when he was a senator in 2011 — lay out clear boundaries over the court's jurisdiction and departure from the ICC does not remove that.
What they said
Marcos made the claim in one of his first chance interviews with reporters on Monday, August 1.
"Ang miting namin ay dahil sinasabi ngayon na itutuloy ang imbestigasyon. Eh, sinasabi naman namin may imbestigasyon naman dito at patuloy rin naman ang imbestigasyon, bakit magkakaroon ng ganun?" Marcos said.
(What we met about is that people are saying that the investigation will continue. And we say: 'there is already an investigation here and the investigation is ongoing, so why would there be such a thing?')
Lawyer Harry Roque, former presidential spokesperson and currently a lawyer for former President Rodrigo Duterte, claimed Tuesday on ANC’s "Headstart" that the country's justice system is working, so there is no need for the ICC probe. He also said that Duterte was open to the possibility of seeking a temporary restraining order against potential — but unlikely — orders for his arrest.
It's the same narrative pushed by the previous Duterte administration: That domestic remedies are functioning and that there is no need for a foreign entity to step in.
Even Marcos' allies in Congress are lashing out at the global court.
"Nalulungkot ako diyan kapagka sinasabi yan na merong mga foreigner ‘no na nakikialam sa atin. Kasi kapag pinayagan natin yan, e precedent na yan...Parang ang dating, wala tayong tiwala sa sarili nating justice system. Kung merong dapat mag imbestiga, e dapat kapwa nating Pinoy yun," Sen. Robinhood Padilla told reporters earlier in July.
(It makes me sad when you say that there are foreigners interfering with us. Because if we allow that, that is a precedent...It comes off as, we don't trust our own justice system. If someone must investigate, it should be our fellow Filipinos.)
What they left out
Experts have long pointed out that though the Philippines withdrew its ratification of the Rome Statute in 2018 — and effectively left the ICC in 2019 — the court retains jurisdiction over crimes allegedly committed while the Philippines was still a member.
"We reject these claims as grave and deliberate mischaracterizations of international law," the Center for International Law — among its founders is Duterte lawyer Roque — said in a fact sheet published Friday.
"Centerlaw notes that the Marcos admin advances the same lies as the Duterte presidency," it also said.
CenterLaw pointed out that even Philippine jurisprudence has acknowledged the non-retroactive effect of the country leaving the ICC in the case of Sen. Pangilinan v. Cayetano, which reads: "Withdrawal from the Rome Statute does not affect the liabilities of individuals charged before the [ICC] for acts committed up to this date."
Lie No. 1: Because the Philippines withdrew from the Rome Statute, the International Criminal Court (ICC) no longer has jurisdiction over the killings in the “War on Drugs."
— CenterLaw (Center for International Law) (@CenterLawPH) August 5, 2022
CenterLaw also asserted that inaction on the part of the state renders a case admissible before the court.
"Because the Philippines has failed to investigate or prosecute those responsible for the bloody drug war, the ICC may exercise jurisdiction over the situation in the Philippines," it said. The government has rejected the claim that irregularities in the "drug war" are not investigated.
CenterLaw added that the government "still has the duty to cooperate" with the ICC despite its withdrawal. Justice Secretary Jesus Crispin Remulla has said that the Philippines would still provide the ICC with information "out of courtesy and comity."
This is because Article 127 of the Rome Statute reads: "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."
"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."
In a phone interview with Philstar.com, Human Rights Watch Asia Senior Researcher Carlos Conde pointed out that the ICC could still insist on its mandate.
"Unless the Philippine government can present something new and compelling that would convince the ICC that [we deserve another chance], well, you can see here that the ICC is cutting the Philippine government a lot of slack. They’re giving them all the chances that they need," he said.
"Out of the thousands of cases, how many are actively being investigated? So what working court is the Philippine government talking about? Do they think the ICC has no idea what is happening here in the Philippines? It's just laughable."
Essential context
In a phone interview with Philstar.com, lawyer Kristina Conti, who represents the families of victims of the drug war before the ICC, said that the narratives pushed by the administration miss the point of the International Criminal Court's mandate.
She pointed out that the DOJ's desk review came July 2020, before the ICC while the initial reports on just 52 drug war cases came later in December of that same year. Duterte pulled out of the ICC a year before the government's own investigation even started in 2019.
"It's clearly an erroneous position to say that there is an investigation or to say that it mirrors or tracks or is of the same sort as the ICC...never did we as lawyers representing drug war victims say that the courts aren't functioning in the Philippines," she said.
"Another point that is misleading or fallacious is their premise that the victims went to the ICC first."
Conti also questioned Roque and Duterte's consideration of a restraining order, pointing out that there is still no official case before the ICC, while the former chief executive is not even formally accused.
"Atty. Roque should really advise his client more wisely and to be more consistent. Why is that his position? The PNP will not be compelled, it will not honor any request by the ICC... it will have no obligation to effect an arrest," she said.
Under the principle of complementarity, the international tribunal should only be the final resort in the event that the Philippine government is unwilling and unable to investigate and prosecute on its own.
Aurora Parong of Amnesty International Philippines and the Philippine Coalition for the ICC said that if the government did intend to challenge the jurisdiction of the ICC, it wouldn't have much ammunition to leverage its argument.
"If they can prove that they are really doing investigations they should step up what they said they are doing as investigation so that it reaches the courts," she told Philstar.com in a phone call, pointing out that only one drug-related killing hae resulted in a conviction: the case of Kian Delos Santos.
"As of nowm there are no indications like that...there's nothing new to show, no genuine investigation, and there's no criminal prosecution of the crimes against humanity."
READ: With no ICC probe set, advocates say drug war victims can still pursue accountability elsewhere
First, though the Philippines withdrew from the Rome Statute effective 17 March 2019, the ICC retains jurisdiction over killings already committed. The non-retroactive effect of withdrawal is provided for in Article 127 of the Rome Statute, and has been recognized by no less than
— CenterLaw (Center for International Law) (@CenterLawPH) August 5, 2022
Why did we fact-check this?
Like the sentiments of many lashing out against the ICC in government, the claim by Marcos was carried by both corporate and state-run media.
This has helped online disinformation channels frame the ICC investigation as a case of foreign interference.
Philstar.com also fact-checked another viral post earlier that claimed Marcos said that representatives of the International Criminal Court would be denied entry into the country if the probe is green-lit.
As of publication, that video has 31,359 views, with around 1,700 likes, on YouTube. The channel also has 687,000 subscribers.
READ: Fact check: Marcos didn't say ICC reps won't be allowed entry to Philippines
— reviewed by Kristine Joy Patag and with reports from Gaea Katreena Cabico
This story is supported by the Philippine Fact-check Incubator, an Internews initiative to build the fact-checking capacity of news organizations in the Philippines and encourage participation in global fact-checking efforts.
Philstar.com is also a founding partner of Tsek.ph, a collaborative fact-checking project for the 2022 Philippines’ elections and an initiative of academe, civil society groups and media to counter disinformation and provide the public with verified information.
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