“The issue of non-cooperation with the ICC is more than a question of sovereignty than the quest for justice for the thousands of victims in the murderous drug war prosecuted by the Duterte government”
In 2019, during the tenure of then President Rodrigo Duterte, the Philippines decided to pull out from the Rome Statute, which established the International Criminal Court (ICC).
Earlier, i.e. on March 13, 2018, President Duterte released a statement announcing the withdrawal of the Philippines as a State-Party from the Rome Statute of the ICC.
He claimed that “the very considerations upon which the Philippines agreed to be a signatory to the Rome Statute have not been observed nor complied with.”
Duterte cited the following reasons for withdrawal: violation of his right to due process of law, lack of jurisdiction over his person, the supremacy of domestic laws, presidential immunity from suit, and lack of the requisite publication in the Philippines’ Official Gazette.
A written notification of withdrawal was deposited with the United Nations on March 17, 2018.
This decision came about after the ICC initiated a preliminary investigation into the Duterte administration’s drug war, and, later that year, a formal inquiry was launched.
Following this withdrawal, there were no plans under the administration of Marcos to consider rejoining the ICC.
On the pretext of protecting the country’s sovereignty, Marcos restated the Philippines, having severed its ties with the international tribunal, is not under the jurisdiction of the ICC.
The President stressed the investigation should be conducted by Filipinos.
At first glance, the President’s decision not to cooperate with the ICC may appear to be justified as it is prompted by a sincere desire to defend the country’s sovereignty from outside interference.
Reasoning that the ICC prosecutors are discussing Filipinos, and the purported crimes took place within the Philippines, with Filipino victims.
So, he questioned why the case would be taken to The Hague, suggesting it should be handled here instead.
The argumentation appeared reasonable and logical on the surface, yet on closer examination, it is specious, to say the least.
What Marcos has conveniently overlooked by his decision not to cooperate with the ICC probe is the undeniable fact that prior to Duterte’s unilateral withdrawal from the Rome Statute, a complaint had been filed while the country was still a party to a treaty.
As such the ICC was not ousted of its jurisdiction by such notice of withdrawal.
The fact that retired prosecutor Fatou Bensouda initiated the preliminary examination in February 2018 prior to Duterte’s withdrawal, the Rome Statute permitted the continuation of that process.
Even the Supreme Court acknowledged in its subsequent ruling that, despite the withdrawal, the Philippines is still bound to fulfill its obligations to cooperate.
This was the SC explicit pronouncement in the case questioning Duterte’s withdrawal from the ICC.
While the Supreme Court unanimously rejected the legal challenge to President Rodrigo Duterte’s withdrawal from the International Criminal Court, which was investigating killings and alleged human rights violations in the nation, it cited the petition as “moot and academic.”
The court also stated the country’s withdrawal from the ICC’s jurisdiction, governed by the Rome Statute, had been in effect since March 2019, i.e. prior to Duterte’s notice of withdrawal.
As such, the case against Duterte and his cohorts continues despite the withdrawal.
The Supreme Court even said that the Philippines remains obligated to cooperate despite the withdrawal.
And since retired prosecutor Fatou Bensouda initiated the preliminary examination in February 2018 before Duterte’s withdrawal, the Rome Statute permitted the continuation of that proceeding.
In the same decision, the Court made it unmistakably clear that then President Rodrigo Duterte could not use the Philippines’ withdrawal from the Rome Statute as a means to avoid the investigation by the International Criminal Court prosecutor regarding charges of committing crimes against humanity in relation to the killings during his harsh war on drugs.
This much should have made President Marcos mindful of when he chose not to cooperate with the ICC probe.
“Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member,” the court said in a 101-page decision authored by Associate Justice Marvic Leonen.
It is not a matter of sovereignty but more so a matter of honoring its treaty obligations as party to the Rome Statute.
A treaty is binding on the parties and must be executed in good faith.
In fact, the high court ruled in the same decision that as a state party the Philippines was bound to recognize the jurisdiction of the ICC and cooperate with its processes even after its withdrawal from the treaty that created the international court.
Marcos, as president, is now duty bound to respect the court’s decision after it issues a final judgment.
He is obliged to adhere to it, regardless of any strong disagreements.
While Presidents have historically criticized the Supreme Court, they do not possess the power to invalidate or ignore these judgments.
The issue of non-cooperation with the ICC is more than a question of sovereignty than the quest for justice for the thousands of victims in the murderous drug war prosecuted by the Duterte government.
Government data indicates that slightly over 6,000 individuals lost their lives in over 200,000 anti-drug operations.
This is however being disputed by the ICC prosecutors who say the death toll is significantly higher, with estimates ranging from 12,000 to 30,000.
The UN Report on the Human Rights Situation in the Philippines says about 8,663 of the deaths are a result of the conduct of anti-illegal drug operations, with estimates triple that amount.
It is a fight against impunity and to ensure that the victims and their families obtain their well-deserved justice.