A critical glance at the ICC

There has been a lot of concerns regarding the announcement of withdrawal by the Philippines from the Rome Statute, the founding treaty of the International Criminal Court (ICC). But there is not much familiarity with the treaty and the circumstances behind its ratification and acceptance in the international community.

To many of President Duterte’s critics, his announcement that the Philippines is withdrawing from the ICC is a wrong decision, some going to the extent of calling it a “cowardly” and “misguided” move. Some used the opportunity to discredit the president’s spokesman Harry Roque, who had once, as a human rights lawyer, praised the Philippines’ inclusion in the ICC.

Mr. O-Gon Kwon (South Korea), the President of the Assembly of State Parties, the management oversight and legislative body of the ICC, meanwhile struck a more conciliatory tone, saying he regrets the development.

“A State Party withdrawing from the Rome Statute would negatively impact our collective efforts towards fighting impunity,” said Mr. Kwon, “the ICC needs the strong support of the international community to ensure its effectiveness. I encourage the Philippines to remain as a party to the Rome Statute.”

But Duterte is adamant. In a speech last Sunday during the PMA graduation rites in Baguio City, the president called on other countries that ratified the Rome Statute to likewise withdraw from the treaty. He implied about the hypocrisy of the European Union which he accused of sponsoring the treaty, aside from his earlier accusation that ICC prosecutors are ill-motivated and biased against his administration.

Duterte’s concerns aside, the ICC had long been criticized for its inconsistency in the selection of cases and its apparent helplessness in taking on the large and more difficult cases especially when confronted by uncooperative governments and superpowers.

In fact, the United States and China have voted against the treaty in 1998 and Russia and India have later been observed as critical of the ICC.

Thus, when Law professor Barry Gutierrez, who is also Vice President Leni Robredo’s legal counsel, implied on national TV that the Philippines could end up on similar track with other countries being regarded as rogue states and that we could possibly lose our preferred trade status because of the withdrawal, I regard his submission as too much of a stretch.

Responding to incessant questions about the US government snubbing the ICC, the US State Department in a policy paper published in 2003 belied suggestions that the US thinks its people should be above the law. “The US does not seek to put its people ‘above the law,’ rather we want to ensure that our nationals are dealt with by our system of laws and due process,” the State Department said.

“We as a nation believe in justice and the rule of law, and in accountability for war crimes, crimes against humanity, and genocide, and have vigorously pursued the highest standards in this regard,” it continued.

Then, bang: “We object, however, to the investigation or prosecution of our citizens by the ICC, whose jurisdiction we have not consented to and which lacks necessary safeguards to ensure against politically motivated investigations and prosecutions.”

Today, the ICC has opened preliminary examinations on Afghanistan, Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine, the Philippines, Ukraine and Venezuela. Situations under investigation are in the Democratic Republic of Congo, Uganda, Darfur in Sudan, Central African Republic, Kenya, Libya, Côte d’Ivoire, Mali, Central African Republic, Georgia, and Burundi.

I am coming to think that Duterte is right. Why? Read the list of countries again -easy-peasy.