Plea to the people and government of PH

Last March 17, the government of the Philippines deposited with the United Nations Secretary General an instrument of withdrawal from the Rome Statute, the foundational treaty of the International Criminal Court (ICC). This withdrawal will take effect one year after the deposit of the instrument—that is, on March 17, 2019.

In his announcement of the withdrawal days earlier, President Duterte criticized the preliminary examination of the situation in the Philippines which was launched by the ICC Prosecutor in February, and indicated that the principle of complementarity, one of the key principles enshrined in the Rome Statute concerning the ICC’s exercise of its jurisdiction, had not been observed.

It is the sovereign right of every state to join or withdraw from treaties. However, this withdrawal will have a negative impact on the global efforts to fight impunity, to prevent future atrocities, and to provide justice to the victims of serious crimes. Further, it will also have a detrimental effect on the image and international standing of the Philippines, which has made important contributions to the ICC and to global structures for the rule of law—so much so that the Philippines has produced two judges of the ICC, one of whom, my fellow alumnus of Harvard Law School, is currently serving as one of the incumbent judges.

I would like to refer to some of the reasons for withdrawal advanced by President Duterte. One relates to the nature of the Prosecutor’s preliminary examination. It is important to note here that the preliminary examination is not a determination that the ICC has jurisdiction to proceed, nor is it a determination of guilt or innocence of any individual; it is, rather, a process by which the Prosecutor determines whether there is a reasonable basis to proceed with an investigation.

Another point relates to complementarity, the principle by which states have the primary responsibility to investigate and prosecute crimes and the ICC has jurisdiction only where a state is unable or unwilling to act against perpetrators of serious crimes. President Duterte has stated that the Philippines, in ratifying the Rome Statute, was “made to believe that the principle of complementarity shall be observed.” Complementarity is indeed one of the key pillars supporting the ICC and, as such, it is a court of last resort. Therefore, if the alleged crimes are genuinely addressed by the Philippines’ national justice system, the ICC cannot proceed. In fact, the Prosecutor’s independent and impartial preliminary examination process assesses this very question. Moreover, the final determination is a matter for a Pre-Trial Chamber consisting of three independent judges, and it is made not on the basis of a hypothetical assessment but on concrete facts.

Further, the withdrawal has no effect on the process initiated by the Prosecutor. The best way for the Philippines to react to the Prosecutor’s preliminary examination would be to engage in dialogue with the Office of the Prosecutor and to demonstrate tangible and genuine efforts to investigate and prosecute alleged crimes, in accordance with the principle of complementarity.

President Duterte also criticized the politicization of the ICC. However, if the Philippines’ withdrawal from the ICC is intended to pressure the Prosecutor to drop the preliminary examination, the withdrawal itself is the very act of politicizing the ICC.

As president of the Assembly of States Parties, I issue a plea to the people and government of the Philippines: Reconsider the withdrawal from the ICC, and continue to support the international community in its efforts to secure peace and justice.

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O-Gon Kwon (Republic of Korea) has vast experience in law at both the national and international levels. He was elected unanimously by the Assembly of States Parties in December 2017 for a three-year term. The Assembly of States Parties is the International Criminal Court’s management oversight and legislative body. It is composed of representatives of the states which have ratified or acceded to the Rome Statute.