By Rafael Santa Maria (PO ’20)
The Philippines officially left the International Criminal Court (ICC) two weeks ago, on March 17, thus ending the country’s participation in the Netherlands-based international tribunal. This comes a year after the Philippine government filed a notice of withdrawal to the UN, and it makes the island nation only the second country to leave, following Burundi’s exit in 2017.
In an official statement from the Assembly of State Parties, the ICC’s legislative body, Assembly President O-Gon Kwon of South Korea immediately expressed his desire for the Philippines to rejoin and reiterated the court’s goal to, “put an end to impunity for the most serious crimes to the international community.” Kwon’s comments contrast greatly with those of Philippine President Rodrigo Duterte, who initiated the withdrawal process and argued that the ICC wrongly impinged on the Philippine legal system and due process.
Prior to filing for withdrawal last year, Duterte dismissed the ICC’s authority since the international tribunal’s founding document, the Rome Statute, did not pass through Philippine Civil Code procedures after it was ratified by the Philippine Senate in 2011. Specifically, Duterte pointed to Article 2 of the Civil Code, which mandates that all laws must first be published in the government-run Official Gazette or “in a newspaper of general circulation” before taking effect. Since the Rome Statute was not disseminated by the press, Duterte maintains that the ICC’s jurisdiction in the Philippines is invalid.
Additionally, Duterte has maintained that he enjoys “presidential immunity” from ICC jurisdiction and therefore cannot be personally prosecuted. Although the Philippines’ 1987 Constitution does not mention nor impart “presidential immunity” in the text, Duterte nonetheless insists that the Constitution’s authors “unanimously agree that such doctrine is deemed written in the 1987 Constitution.”
Duterte’s adamancy regarding his own legal immunity belies accusations that he remains liable for numerous human rights violations stemming from his ongoing “war on drugs.” Indeed, Duterte’s 2018 decision to unilaterally withdraw from the ICC came after ICC Chief Prosecutor Fatou Bensouda announced that the tribunal would launch a preliminary examination to investigate the drug war. Consequently, human rights organizations such as Human Rights Watch have since argued that Duterte’s withdrawal was an attempt to escape justice rather than to preserve the sanctity of the Philippine legal system.
Furthermore, Duterte’s unilateral decision to withdraw has led to legal opposition from Filipino politicians and activists who accuse the President of disregarding the separation of powers and the humanitarian plight created by the drug campaign. One group of senators petitioned for a writ of certiorari to the Supreme Court of the Philippines on the grounds that Duterte’s decision bypassed Senate concurrence regarding an international treaty. In doing so, the petitioners hope to prevent the president from ignoring the concerns of the Senate when negotiating and approving international agreements.
In response, the Duterte administration filed a brief dismissing the senators’ legal standing, stating that the small group of petitioners cannot represent the Senate of the Philippines as a whole. Also, the administration’s brief seemingly dismissed concerns over the separation of powers principle by claiming that “the President has the sole prerogative” to effectively prevent “interference” in the Philippine judicial system by the ICC.
However, the Duterte administration’s dismissal of the senators’ standing contravenes the Supreme Court’s usual understanding of the issue. Theodore Te, a former Court Administrator and Public Information Office Chief of the Supreme Court, noted via personal email correspondence that, “the Supreme Court has always recognised the standing of individual senators or members of the House, regardless of number.” Therefore, the issue of standing may not stymie the senators’ efforts to challenge the president’s withdrawal.
Regarding the brief’s argument for presidential prerogative, Te acknowledges that while the Supreme Court recognizes the president’s “sole prerogative to determine which foreign states can ‘intervene,’” the “application [of the prerogative argument] to this case is precisely the issue in question.” Instead, Te highlights that the true “open question” in the case is whether the Senate, which is constitutionally required to “concur in the entry into the Rome Statute,” is also required to approve of withdrawals from the Statute and other treaties.
Altogether, it appears that the Philippines’ withdrawal from the ICC did not result in the clean split that Duterte presumably intended. Rather, Duterte’s suspect timing and unilateralism in exiting sparked controversies over human rights and constitutional law, ensuring that the ICC issue will remain a thorn in the administration’s side. Still, since the withdrawal came before the ICC could launch a full probe, Duterte has largely sidestepped international investigation and prosecution. However, while the future of the administration seems tentatively secure at worst, the humanitarian situation for the masses affected by the drug war seems bleak at best.