A Position Paper on whether the Philippine should

Withdraw from the International Criminal Court

By: GUSTAVO F. DALEN

INTRODUCTION

The International Criminal Court (ICC) investigates and, where warranted,

tries individuals charged with the gravest crimes of concern to the international
community: genocide, war crimes, crimes against humanity and the crime of
aggression.

Towards stability and lasting peace

Justice is a key prerequisite for lasting peace. International justice can

contribute to long‐term peace, stability and equitable development in post‐
conflict societies. These elements are foundational for building a future free of
violence. 1

In 2005, under the then-President Gloria Macapagal Arroyo, human rights

advocates petitioned the Supreme Court to move forward with the ratification of
the treaty. After an-11 year process that outlasted three different administrations,
The Philippines ratified the Rome Statute in 2011, becoming the 117th member
of the ICC. Civil society and many governmental actors were instrumental in the
ratification process, having advocated for ratification for over a decade, and
playing a pivotal role in garnering public attention and keeping the ICC on the
political agenda.2

The Philippines has been one of the many countries that actively
participated in the drafting of the Rome Statue. This has also been recognized by
the late Senator Miriam Defensor Santiago in her sponsorship before the Senate
for the concurrence of ratification for the Rome Statue. She recognized that the

1
International Criminal Court website: https://www.icc-cpi.int/about
2
Coalition for the International Criminal Court:
http://www.coalitionfortheicc.org/news/20190315/philippines-leaves-icc
diplomatic conference on the establishment of an ICC was attended by some 160
states and that “the most powerful camp among the delegates were the so-called
‘like-minded’ states, which opposed the 1994 draft by the International Law
Commission, and which also opposed the views of the permanent members of the
Security Council.” She emphasized that the Philippines “was a member of that
‘like-minded’ caucus of states.”3

COUNTER ARGUMENTS

The Philippines’ withdrawal from the International Criminal Court (ICC)

took effect on Sunday, March 17, 2019, throwing out a long struggle that took 11
years.

The pullout comes a year after the government transmitted its notice of
withdrawal to the office of the United Nations (UN) Secretary-General in New
York, formalizing the announcement of President Rodrigo Duterte on March 14,
2018.

The Philippines’ ICC withdrawal is important to discuss, especially because

it concerns not just the current situation under the Duterte administration, but also
the future available channels of accountability for Filipinos who need justice.

WHY DID DUTERTE WITHDRAW FROM THE ICC?

The President said that he decided to withdraw the country’s ratification of

the Rome Statute because the Philippines was "made to believe that the principle
of complementarity shall be observed, that the principle of due process and the
presumption of innocence as mandated by our Constitution and the Rome Statute
shall prevail, and that the legal requirement of publication to make the Rome
Statute enforceable shall be maintained."

3
ABS-CBN News: https://news.abs-cbn.com/spotlight/03/16/19/the-philippines-and-the-international-
criminal-court
 He insisted that the ICC does not have jurisdiction over him, claiming that
the Rome Statute was never published in the Official Gazette, the official journal
of the Republic of the Philippines. Thus it never took effect in the country.

Duterte’s decision to withdraw came after the ICC’s Office of the Prosecutor
started its "preliminary examination" to determine whether there is sufficient
evidence to establish that the case against Duterte falls under its jurisdiction. The
Philippine president has been accused of crimes against humanity before the
court.4

Manila moved to quit after the body launched a preliminary examination in

2018 of President Rodrigo Duterte's drug crackdown that has killed thousands
and drawn international censure.

Duterte's drug war is his signature policy initiative and he defends it fiercely,
especially from international critics like Western leaders and institutions which
he says don't care about his country.5

ARGUMENT

Several local and international organizations and individuals, especially

human rights groups, condemned the withdrawal. They called the move “anti-
people,” warning that it "exposes Filipinos to possible atrocious crimes without
resort to justice and accountability.”

The Philippines' ICC withdrawal, meanwhile, is being challenged before the

Supreme Court.

4
DUTERTE THROWS OUT DECADE-LONG FIGHT FOR THE INTERNATIONAL CRIMINAL COURT:
https://www.rappler.com/newsbreak/in-depth/225454-philippines-duterte-withdrawal-international-criminal-
court
5
Philippines leaves International Criminal Court: https://www.rappler.com/nation/225924-philippines-
international-criminal-court-withdrawal-march-17-2019
 According to opposition senators who filed the first petition, Duterte cannot
unilaterally withdraw membership of the Philippines in the ICC without the
concurrence of the Senate.

There is no clear textual basis for withdrawal in the Constitution, but Senior
Associate Justice Antonio Carpio said during oral arguments that the Rome
Statute has been transformed into a domestic law that only Congress can repeal,
and not by the President on his own.

The second group of petitioners, the Philippine Coalition for the ICC, added
that the Rome Statute is jus cogens in character, or what is known as a peremptory
norm or a compelling law that cannot be violated. Under the principle, a country
cannot pass a local law that would violate the compelling law, or the Rome Statute
in this case.

The ongoing preliminary examination can still continue because the alleged
crimes that were brought to the attention of the Office of the Prosecutor occurred
during the membership of the Philippines in the ICC.

Article 127 of the Rome Statute explicitly states that criminal investigations
and proceedings that have been started – before the withdrawal came into effect
– will still continue.

The court can also examine incidents that happened in the period between
2011 and March 2019 – the year the Philippines joined the ICC and when its
withdrawal was finalized.6

CHR spokesperson Jacqueline de Guia said yesterday the decision of

President Duterte to unilaterally withdraw from the tribunal is a reversal of the

6
DUTERTE THROWS OUT DECADE-LONG FIGHT FOR THE INTERNATIONAL CRIMINAL COURT:
https://www.rappler.com/newsbreak/in-depth/225454-philippines-duterte-withdrawal-international-criminal-
court
country’s commitment to international treaty obligations, particularly in ending
impunity.

De Guia also described the withdrawal as a step back from the gains the
Philippines has achieved in promoting justice and human rights.

“In the end, it is the Filipino people who are bound to lose when they no
longer have recourse in times the local justice systems fail in protecting them,”
De Guia said.

“It is then impunity that wins as a consequence of withdrawal. The task

before the Philippine government is to show—beyond words—that it is willing
to investigate, prosecute and punish perpetrators of alleged extrajudicial killings
linked to the government’s anti-drug war,” she added. 7

CONCLUSION

Despite our withdrawal, many believe that it will not affect our criminal
justice system. But it will affect our reputation in the international community.
That it will give others the impression that we are not able to fulfill our
commitments to international treaty obligations, The ICC will continue to
examine and assess the information to determine whether these complaints fall
within the jurisdiction of the court.8
In theory, the ICC can proceed to issue a sentence, enforceable under the
general agreement that countries will continue to cooperate even after
withdrawal. Whether or not the ICC can do something concrete to hold
individuals accountable for crimes depend on one thing: good faith. Good faith
that the countries will honor their obligations under the international law.9
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

7
International Criminal Court withdrawal a loss for Filipinos— CHR:
https://www.philstar.com/headlines/2019/03/18/1902383/international-criminal-court-withdrawal-loss-
filipinos-chr
8
MANILA BULLETIN, Philippines’ withdrawal from ICC https://news.mb.com.ph/2019/03/23/philippines-
withdrawal-from-icc/
9
RAPPLER: https://www.rappler.com/newsbreak/in-depth/225454-philippines-duterte-withdrawal-
international-criminal-court
member and even after its withdrawal from the Rome Statute became effective
last Sunday. - ICC prosecutor Fatou Bensouda
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.
“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.10

10
PHILSTAR GLOBAL, Withdrawal won't stop International Criminal Court's examination of Philippines
https://www.philstar.com/headlines/2019/03/20/1903046/withdrawal-wont-stop-international-criminal-
courts-examination-philippines