Withdrawal won't stop International Criminal Court's examination of Philippines

MANILA, Philippines — The International Criminal Court (ICC)’s preliminary examination into the situation in the Philippines will continue because the Court retains its jurisdiction over crimes committed in the context of the war on drugs while it was still a member and even after its withdrawal from the Rome Statute became effective last Sunday, ICC prosecutor Fatou Bensouda announced yesterday. 

Her announcement came after Malacañang said on Monday that ICC representatives would be barred from entering the Philippines if they insist on investigating alleged extrajudicial killings tied to the war against illegal drugs. 

“My office’s independent and impartial preliminary examination into the situation in the Philippines continues… Pursuant to Article 127.2 of the Statute, and based on prior ICC judicial ruling in the situation in Burundi, the Court retains its jurisdiction over crimes committed during the time in which the State was party to the Statute and may exercise this jurisdiction even after the withdrawal becomes effective,” Bensouda said in a statement. 

The Philippines’ withdrawal from the Rome Statute, the founding treaty of the ICC, became effective on March 17.

O-Gon Kwon, president of the Assembly of States Parties, expressed yesterday his regret on the country’s withdrawal as he stressed that the Assembly, comprising of more than 120 states from all regions of the world, is fully committed to the ICC’s mandate to help put an end to impunity for the most serious crimes that are of concern to the international community. 

“I sincerely hope that the departure of the Philippines from the Rome Statute is only temporary and that it will re-join the Rome Statute family in the future. Encouraging universal adherence to the Rome Statute is key in strengthening our collective efforts to promote accountability for atrocity crimes and the rule of law,” Kwon said. 

The ICC, he added, “relies on the continued support of the international community to ensure its effectiveness in the fight against impunity.”

The Assembly of States Parties is the management oversight and legislative body of the ICC. It is comprised of representatives of all states that have ratified and acceded to the Rome Statute, which also provides that examinations started before the withdrawal will not be affected. The Philippines ratified the Statute on Aug. 30, 2011 and entered it into force from Nov. 1, 2011. Its withdrawal became effective last March 17.

Bensouda said her “office will also continue to record allegations of crimes committed in the Philippines to the extent that they may fall within the jurisdiction of the Court.”

The preliminary examination of the situation in the Philippines was announced by the Office of the Prosecutor of the ICC on Feb. 8, 2018. It is aimed at analyzing the crimes allegedly committed since July 1, 2016 in the context of the war on drugs launched by the Philippine government. It was alleged before the ICC that thousands have been killed due to their alleged involvement in illegal drug use or dealing. 

It was also alleged that many of the reported incidents involved extrajudicial killings in the course of police anti-drug operations.

Magdalo party-list Rep. Gary Alejano warned that the withdrawal would limit the country’s access to and limit the options for foreign aid and loans.

“From an international perspective, the President’s idea to withdraw signifies an act that goes against universal values that other countries have adopted and fostered. Moreover, his act will restrict our country from receiving any foreign aid, which requires as a condition the preservation and protection of human rights,” he said.

He added that “from a domestic point of view, the country’s exit from the ICC would embolden our leaders to commit further human rights violations.”

“The enablers of EJKs in this country will pay the price in full. They will not be spared from the clutches of justice once the war on drugs, which has claimed thousands of Filipino lives, is proven to be a crime against humanity. You can withdraw but you cannot hide,” Alejano also said.

He cited Article 127 of the Rome Statute, which provides that no state, despite its withdrawal, can be exempted from its obligations during such time that it was a party to the statute. 

“In light of this, all concerned authorities are expected to cooperate with the upcoming proceeding. I call on them not to be swayed by partisanship, but rather commit fully to their mandate to serve the people. They should not be loyal to one person,” he urged as he pointed out that the success of the ICC inquiry “will reiterate this country’s commitment to protect and promote human rights.”

“Overall, the withdrawal from ICC provides no benefit to our country, other than the President thinking he can escape criminal prosecution but more egregiously, it paints our country negatively before the international community,” he stressed.            

Both Alejano and Sen. Antonio Trillanes IV are complainants in a case against Duterte filed with the ICC.

Meanwhile, the Human Rights Watch suggested the need to seek help from the UN Human Rights Council on the drug war victims in the country since the Philippines’ withdrawal from the ICC has now become official, which means any future international crimes committed in the Philippines will be outside the court’s jurisdiction.

“That the ICC will not be able to pursue justice in Philippines for future crimes highlights the urgency of the UN Human Rights Council dispatching an investigation into drug war killings in the Philippines. As a member of the council, the Philippines is obligated to uphold the highest standards of human rights, to fully cooperate with the council and accept increased scrutiny of its rights record to ensure that it adheres to its membership responsibilities,” the group said.

Param-Preet Singh, the group’s representative, said a UN-led investigation could shine the spotlight on Duterte’s efforts to block accountability and raise the pressure on him and his government to change course.

“Duterte has claimed that the Philippine justice system can deliver justice, but the conviction of three police in a single case to date, against a backdrop of up to 27,000 dead, according to a recent United Nations estimate, tells a very different story,” Singh alleged. – With Jess Diaz, Rhodina Villanueva