MANILA (UPDATED)—The Supreme Court may eventually have to settle whether the Philippines’ withdrawal from a war crimes tribunal is valid, a human rights commissioner said Friday, but also suggested that the issue may be better left “in limbo” for now.
A high court ruling upholding President Rodrigo Duterte’s decision even without the Senate’s concurrence would mean the Philippines would be out of the International Criminal Court (ICC) after a year, said Commissioner Roberto Cadiz.
“But if it is left in limbo, then an argument can be made later on, under more favorable times, that in fact we never left the statute, we never disengaged from the statute,” Cadiz told ABS-CBN News.
“It’s just, shall we say, a rational essaying of possibilities, thinking strategically.”
From a “purely academic point of view,” he said the Supreme Court should settle the validity of the withdrawal if it is questioned before it.
Assuming the exit was valid, he said the Philippines could rejoin the ICC “but it will be more difficult.”
“Makakabalik at makakabalik, of course, because the interest of the other state parties is for more members within the statute,” he said, (but) you will have to go through the processes again.”
Last year, South Africa’s high court rejected its president’s notice of withdrawal from the ICC for failing to seek the approval of parliament.
Duterte pulled the Philippines out of the ICC just as the tribunal was conducting a preliminary examination into widespread killings under his war on drugs.
Critics have questioned the legal bases laid down by Malacañang, primarily that the treaty should have been published in the palace gazette even after the Senate’s ratification in 2011.
The ICC asked Manila to reconsider the decision but made it clear that “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.”
It also clarified that a preliminary examination “is not an investigation” but “an initial step to determine whether there is a reasonable basis to proceed with an investigation.”
Other world leaders had also tried to bolt the Rome Statute for different reasons before, among them, when the ICC began looking into serious complaints against them.
“The interest of the head of state is not necessarily the same as the interest of the state,” Cadiz said, noting Duterte had “a very strong motivation... to withdraw the state from the statute to protect himself.”
“It is not wise as a policy to allow just the leader, just the president, to make such an important decision.”
Cadiz rejected the President’s claim that “there appears to be fraud” when the Philippines entered the Rome treaty.
“Ang tanong is — sino ang nangloko sa atin into entering into that treaty?” Cadiz said.
“Is Malacañang saying all of the other members of the ICC duped the Philippines into entering that?”
Duterte earlier said the Philippines “was made to believe that the principle of complementarity shall be observed.”
The principle means the ICC steps in as a court of last resort only if state parties are unwilling and unable to genuinely investigate and prosecute cases of genocide, war crimes, and crimes against humanity.
Duterte also claimed he was not being accorded due process and that the treaty was not in effect in the Philippines because it was not published beforehand.