President Duterte’s decision to withdraw from the International Criminal Court gives the false impression that government agents, especially our police force, can continue to perpetuate a culture of impunity and that they can evade international accountability for crimes against humanity.
CenterLaw shares our people’s fear that this attempt to withdraw from the ICC will plunge the country deeper into the quagmire of impunity—one that has already claimed thousands of lives.
Contrary to the President’s claim, the Rome Statute became effectual as domestic law when the Senate gave its concurrence to the Rome Statute in 2011. Said concurrence by the Senate is a necessity provided for under Article VII Section 21 of the Philippine Constitution. This is a point well established in our constitutional jurisprudence as the “doctrine of transformation.”
There is no further requirement of publication in any newspaper of general circulation to make the treaty binding upon the Philippines, as the President contends. In fact, the Philippines now has an International Humanitarian Law Act, Republic Act No. 9851, which allows our courts to try cases cognizable by the ICC under the principle of complementarity.
The President’s claim that we embraced membership in the ICC on false representations of complementarity by its international proponents is erroneous. The country in fact had a leading participation in the establishment of the ICC, as the Philippines actively participated in the drafting of the Rome Statute.
The Philippine delegation brought with them to the Rome Conferences in 1998 our rich jurisprudential heritage in international criminal law, borne of our country’s tragic experience in World War II, and embodied in the landmark war crimes cases of top generals of the Japanese Imperial Army—Tomoyuki Yamashita and Shigenori Kuroda.
The ICC’s initiation of preliminary examination on his drug war does not deny him his right to due process and his right to be presumed innocent until proven otherwise. Even if the process progresses to the investigation proper, he will be accorded his right to contest the charges, or even disclaim the court’s jurisdiction to try him.
The principle of complementarity triggers the ICC’s jurisdiction over a situation in a state party if that state party is unable or unwilling to prosecute international crimes happening within its territory that are cognizable by the ICC.
The attempt to withdraw from the ICC will not save anyone responsible for crimes against humanity from the ICC’s jurisdiction. The rules of the ICC are clear that it has jurisdiction over crimes committed in a state’s territory while the latter was a party to the Rome Statute.
CENTER FOR INTERNATIONAL LAW (CenterLaw), 1904 Antel Corporate Center, 121 Valero St., Salcedo Village, Makati City