MANILA - A group of 60 judges and lawyers from all corners of the globe has branded President Duterte's decision to withdraw from the International Criminal Court (ICC) as “hasty and ill-conceived.”
In a statement, International Commission of Jurists (ICJ) Secretary-General Sam Zarifi said the Philippine government’s justifications for withdrawing from the ICC “are a litany of poorly thought out pseudo-legal arguments and self-serving statements that focus on President Duterte’s fear and resentment at facing questions for the horrific campaign of extrajudicial executions that his government has explicitly condoned.”
“At any rate, despite what the Philippine president may wish, withdrawal from the ICC will not prevent the Prosecutor from conducting a preliminary examination because the acts complained of were committed prior to the date when the withdrawal becomes effective,” Zarifi added.
Duterte earlier said the Philippines was withdrawing from the ICC due to what he called "outrageous" attacks by United Nations officials and violations of due process by the ICC.
He made the decision after the ICC said it will start a preliminary examination on a complaint against Duterte and other officials over alleged extrajudicial killings in the Philippines.
In a 15-page statement dated March 13, Duterte said he was withdrawing from the ICC's founding treaty, the Rome Statute, because of "baseless, unprecedented and outrageous attacks" by U.N. officials, and ICC actions that he said failed to follow due process and presumption of innocence.
"There appears to be a concerted effort on the part of the U.N. special rapporteurs to paint me as a ruthless and heartless violator of human rights who allegedly caused thousands of extrajudicial killings," Duterte said.
The ICC's preliminary examination was premature, he added, and "effectively created the impression that I am to be charged ... for serious crimes falling under its jurisdiction."
‘PRELIMINARY EXAMINATION NOT VIOLATION OF DUE PROCESS’
The Geneva-based ICJ, however, said it sent a letter to Duterte pointing out that “the launch of a preliminary examination does not violate the principle of presumption of innocence or due process.”
It warned Duterte that the withdrawal “would not only be a setback to the protection of human rights in the country, but also send a message that the Philippines is turning its back on the rule of law and international justice.”
The ICJ said in its letter that the Philippine government should welcome the preliminary examination “since it will provide it the opportunity to make a showing that national judicial systems are indeed effectively investigating and prosecuting these allegations.”
“The ICJ, therefore, encourages the government to engage with the Prosecutor by discussing with her Office relevant investigations, prosecutions or other efforts to ensure accountability at the national level. This would also signify that the Philippines is committed to upholding the rule of law, and combatting impunity for human rights violations in the country.”
The President argued he decided to withdraw the country from the statute because of these supposed violations, which he said rendered the statute fraudulent.
In its letter, the ICJ, however, noted that the Philippines understood very well what it would entail to become a state party to the statute.
It noted that the Philippines enacted Republic Act 9851 in December 2009 which set out the obligations of the Philippine government to penalize crimes similarly covered by the Rome Statute. This law was enacted prior to the Philippines becoming a member state to the statute.
The ICJ also said, facts such as the Philippines’ reaffirmation of its support for the Rome Statute as recently as Dec. 7, 2017 and its active campaign to have Filipino Raul Pangalangan elected as ICC judge “upend the claim that the Philippines was fraudulently induced to become a State Party to the Rome Statute.”
The ICJ urged the Philippines to cooperate with the ICC proceedings and “to unequivocally denounce and effectively address extrajudicial killings, whether of alleged criminals or of any person in the Philippines.”
“President Duterte has very publicly stated that he will block investigations into the conduct of his government and its role in the killings of thousands of people; he has insulted and threatened United Nations officials; he has bullied and belittled domestic critics and civil society. He’s now trying to avoid accountability under international law, too,” Zarifi said in his statement.
“There is no indication so far of a genuine, thorough, prompt, impartial, and independent investigations of these crimes in the Philippines, and the apparent unwillingness of the authorities to do so is one of the grounds on which the ICC can and should assert jurisdiction to undertake its own investigation.”
‘NON-PUBLICATION IRRELEVANT IN INT’L LAW’
The President was also banking on the argument that the treaty did not become part of Philippine law because it was not published in the Official Gazette or a newspaper of general circulation. Critics from the legal field, however, have debunked this argument.
Human rights advocacy group CenterLaw, co-founded by Duterte’s spokesman Harry Roque, said the requirement for publication is no longer necessary because the treaty became effective when the Senate gave its concurrence. The Philippines signed the Rome Statute in 2000 and ratified and endorsed it in 2011.
The ICJ said, from the perspective of international law, “it is immaterial whether or not the Rome Statute or the instrument of ratification is published in a particular manner or publication.”
“Under Article 46 of the Vienna Convention on the law of treaties, a State may not invoke internal law irregularities as invalidating its consent to be bound by treaty, except in narrow circumstances not applicable to the question raised here,” the letter reads.
In a statement on Tuesday, March 20, the ICC said the Philippines’ withdrawal from the ICC only becomes effective a year after the deposit of the notice of withdrawal to the UN Secretary-General.
“A withdrawal has no impact on on-going proceedings or any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective; nor on the status of any judge already serving at the Court,” the ICC said.
Responding to the ICJ’s statement and letter, Duterte’s chief legal counsel Salvador Panelo denied there was haste in the President’s decision to withdraw the Philippines from the statute.
“In fact, the President had been threatening to withdraw therefrom if it will continue to infringe on the country’s sovereignty and allow itself to be utilized by the government’s detractors as a political tool against his administration,” Panelo said.
“Notwithstanding this warning, the ICC and United Nations officials continued to issue public statements and comments creating the impression to the world that our government is already guilty of the crimes being accused of.”
Panelo added that Duterte’s decision to withdraw the Philippines from the statute was “within his constitutional mandate to pursue an independent foreign policy.”
Citing a Supreme Court decision, Panelo said the President is the “sole organ and authority in the external affairs of the country” and is considered as the “chief architect of the nation’s foreign policy and the country’s sole representative with foreign nations.”
He also argued that the SC has already ruled that a treaty may be invalidated if it is in conflict with the Constitution.
“This is the case here. The non-publication of the Rome Statute, a law which is penal in nature, violates not only Article 2 of the Civil Code but more importantly, Article III, Sections 1 and 7 of the 1987 Constitution which respectively guarantee the rights of the people to due process and to be informed on matters of national concern,” he said.
“Moreover, the acts of the ICC in insisting jurisdiction over our sovereignty show evident fraud on its part when it warranted that it would respect the rights of its state members to foreign independence and control.”
The ICJ, for its part, argued that “neither the question of the presumption of innocence nor due process have arisen at this early stage.”
“The preliminary examination stage involves a process that will examine the information available ‘in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute,’” the ICJ said, quoting a statement from the office of ICC prosecutor Fatou Bensouda.
Panelo said the Philippines would not have signed and ratified the statute “if it knew from the beginning that the ICC will just later renege on its obligations found in the said statute.”
He also lamented that “Filipinos who work in the ICJ would rather be on the side of organizations which threaten the sovereignty of our nation than protect the country’s President in promoting the safety and welfare of our citizens.”
Panelo did not identify who the Filipinos he was referring to, however.
The Philippines is represented in the ICJ by former SC Associate Justice Adolf Azcuna.