MANILA, Philippines — Withdrawal from the International Criminal Court would deprive the Philippines of a legal avenue to hold leaders of other nations accountable for incursions and invasion, Acting Chief Justice Antonio Carpio said Tuesday.
On Tuesday, the SC resumed its oral arguments on petitions challenging the country’s withdrawal of membership from the ICC, saying that withdrawal, like ratification, requires concurrence by the Senate.
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Carpio pointed out to Solicitor General Jose Calida that there was a recent amendment to the Rome Statute on the Crime of Aggression—a legal deterrent that would help the country run after countries that may invade our islands.
Crime of Aggression
The ICC defines Crime of Aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political and military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”
As of October, 36 states have ratified the Kampala amendment on the crime of aggression, according to the website of The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression.
The Philippines is not among the 36 states.
The Kampala amendment, which holds political and military leaders accountable for crime of aggresion, took effect on July this year.
Carpio said the amendment “says that political and military leaders of the State that commit aggression invades or occupies militarily the territory of a State will be guilty of crime of aggression and they can be brought to the ICC.”
He stressed that under the recent amendment, political and military leaders will be individually responsible.
Philippines announced withdrawal before Kampala amendment
The resolution took effect on July 17, 2018, for ICC member states that ratified or accepted the said amendment.
The Philippines, however, sent its notice to withdraw in March, which was months before the said activation.
The Philippines’ withdrawal of membership will take effect a year after the notice was receipt, which is on March 17, 2019.
“If, for example, China invades Pag-asa Island, puts up a naval base in Scarborough Shoal, we will not be able to sue President Xi Jinping and his military leaders because we would have withdrawn already from the ICC, correct?” Carpio pressed.
The justice, who is part of the legal team that made the case and won the arbitration case against China, stressed that since the Philippines signified its withdrawal, it cannot use the recent amendment if China would invade Pag-asa island or militarize Scarborough Shoal.
Carpio also stressed: “This is the only treaty that holds military and political leaders of a state that commits crime of aggression that will hold these military and political leaders individually accountable before an international tribunal. No other.”
He told Calida to discuss the specific issue on his memorandum that he would file in 30 days.
“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 said.
“Because there is no other tribunal that can decide on territorial disputes unless both parties voluntary submits to arbitration but this one it’s a crime against the world. It's a crime against mankind,” Carpio added.
SC wraps up oral arguments
In March 2018, the Philippines under President Rodrigo Duterte became the fourth country to have announced withdrawal of its ratification of the Rome Statute, the treaty that established the International Criminal Court.
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 withdrawal.
This came a month after the ICC initiated a preliminary examination into allegations of extrajudicial killings in the Philippines.
Petitioners composed of Philippine Coalition for the ICC and opposition senators argued that the executive department committed grave abuse of discretion in withdrawing the country’s membership in the ICC without the concurrence of the Senate.
After three days of oral arguments, the SC wrapped up its oral arguments on Tuesday afternoon.
Parties are ordered to submit their respective memorandum 30 days from October 9. After the documents are submitted, the case is deemed submitted for decision.