Withdrawing from the ICC: What Now for the Philippines?
Photo Credit: AP
By Andrea Chloe Wong

Withdrawing from the ICC: What Now for the Philippines?

Apr. 11, 2018  |     |  0 comments

On March 16, 2018, the Philippines began the process of its withdrawal from the International Criminal Court (ICC) when it officially served notice to the United Nations that it had decided to renounce the Rome Statute. The country’s withdrawal was brought about by the ICC’s plan to start a preliminary inquiry into allegations of mass murder and extra-judicial killings during the course of President Rodrigo Duterte’s war on drugs. For all its justifications, the Duterte administration’s decision to leave the ICC ultimately discredits the Philippines’ democratic credentials that are supposedly grounded on the ideals of human rights.

The Philippines’ withdrawal from the ICC stems from what Duterte saw as a personal affront against him. Denouncing what he called efforts to paint him as a “ruthless and heartless violator of human rights,” Duterte accused UN officials of “baseless, unprecedented and outrageous attacks on my person.” Meanwhile, Foreign Affairs Secretary Alan Peter Cayetano pointed to the “well-orchestrated campaign to mislead the international community, to crucify President Duterte and the Philippines by distorting the human rights situation in the country.”

Moreover, the Duterte administration accused international and local human rights groups as well as opposition forces in the country of using an international organization such as the ICC to attack Philippine sovereignty. According to Cayetano: “This campaign against President Duterte and the Philippines is being effectively carried out by elements who seek to undermine our government … to advance their goal of overthrowing our democratically installed government.” Such sentiment is reinforced in the Philippines’ note verbale to the UN: “Our decision to pull out of the Court is a principled stand against those who politicize and weaponize human rights.”

In February, the ICC launched a preliminary inquiry to determine whether there was a basis to proceed with a full-fledged investigation into the Philippines’ crackdown against illegal drugs under the Duterte administration. It was brought about by a complaint from Jude Sabio, a Filipino lawyer, who accused the president and other government officials of mass murder and crimes against humanity. Ever since Duterte assumed office in 2016, there have been mounting allegations that thousands of drug lords, addicts, and pushers — including innocent people — have died at the hands of police officers or unknown gunmen. With the Rome Statute serving as its foundational and governing document, Sabio and other human rights activists believe that the ICC has, since its formal establishment in July 2002, the jurisdiction to prosecute individuals for genocide, war crimes, and crimes against humanity.

In the face of such accusations, Duterte has justified the rising death toll in his war on drugs as a consequence of legitimate police operations: “The deaths occurring in the process of a legitimate police operation lacked the intent to kill. The self-defense employed by the police officers when their lives became endangered by the violent resistance of the suspects is a justifying circumstance under our criminal law, hence they do not incur criminal liability.” Therefore, Duterte argues that the acts being attributed to him are neither genocide, war crimes, nor crimes against humanity, which consequently do not fall under the jurisdiction of the ICC.

While the allegations against Duterte might not yet be tantamount to genocide or crimes against humanity, he is perceived to have committed, or at least been involved in, extra-judicial killings. Such a grave accusation warrants an independent inquiry, especially when the alleged crime involves police authorities, including the highest official of the land. Thus, the ICC inquiry may be a good venue to show to the world that he is not guilty of these charges, of which he has constantly ranted about in the global media. The court’s initial probe would have been a worthwhile opportunity for Duterte to explain to the local public and the international community the rationale behind his war on drugs and the justifications behind the rising casualties as a consequence of it. However, withdrawing the Philippines from the ICC deprives him of this opportunity.

Although President Duterte is not the Philippine state, it will take major efforts to undo the decisions he made on behalf of the country long after he is gone.

Another concern raised by the Duterte administration against the ICC is the issue of complementarity. In practice, the court will only hear cases where the state is unable or unwilling to do so. The Duterte administration has argued that the country’s local courts are capable of investigations under its domestic laws such as the 2009 Philippine Act on Crimes against International Humanitarian Law, Genocide and Other Crimes against Humanity. However, the relatively few drug-related cases pending in Philippine courts have not yet held officials and suspects accountable for the rising death toll and extra-judicial killings, especially since Duterte has publicly implied legal protection in his “license to kill” order to police authorities. This bolsters the widespread perception that the current government has not demonstrated serious willingness in addressing these unknown deaths and murder cases. And given that the “aforementioned Law also states that a president enjoys constitutional immunity during their tenure, it is even more difficult to believe that domestic courts could thoroughly investigate all aspects of the case.”

By pulling out the Philippines from the ICC, Duterte has essentially reinforced general notions of his negative disposition towards institutions that criticize him. Undoubtedly, he took offense at the court’s preliminary investigation into his anti-narcotics campaign and regarded it as a personal affront against him. Unfortunately, the country’s withdrawal from the ICC was not clearly clarified to the public, and was largely deemed by the Filipino public as the president’s personal retaliation against the court over the possibility that he himself might be investigated. Such diplomatic oversight leaves an inappropriate impression that the “present administration equates the Duterte presidency with the Philippine state.”

In addition, the Philippines’ withdrawal from the ICC does not bode well for a country with a long-held reputation of having a vibrant democracy with a strong foundation on human rights. It also highlights the grim reality that a country’s commitment to democracy and human rights can be subject to negotiations and compromises depending on who is in power. What is worse is that the Philippines’ decision will set a precedent for other countries to withdraw from multilateral institutions when accusations and criticisms become too uncomfortable and unpleasant for their leaders to handle. If a long-established democracy such as the Philippines renounces the ICC, what is to hinder other countries, particularly authoritarian states, from doing the same?

Despite the government’s statement of instant revocation, the Philippines’ renunciation of ICC membership may not take effect immediately. The withdrawal can only take effect a year after a written notification is received by the United Nations Secretary-General. In the meantime, the country remains a full member of the court and criminal investigations can continue. Moreover, since the Philippine Senate is involved in the ratification of treaties such as the country’s membership in the ICC, it has insisted that it must also be involved in any attempt at “deratification.” According to a Senate resolution: “A treaty or international agreement ratified by the President and concurred in by the Senate becomes part of the law of the land and may not be undone without the shared power that put it into effect.”

However, the damage has already been done on the Philippines’ reputation in the international community as an advocate for democracy and human rights. Although President Duterte is not the Philippine state, it will take major efforts to undo the decisions he made on behalf of the country long after he is gone. Hopefully, the remaining years of the Duterte administration will not be spent on retaliation against the international institutions that he finds personally offensive, to the detriment of the Philippines’ interests and the welfare of its people.

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