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Withdrawal of the Philippines from the Rome Statute of the International Criminal Court

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Withdrawal of the Philippines from the Rome Statute of the International Criminal Court HUMAN RIGHTS ADVISORY ON THE WITHDRAWAL OF THE PHILIPPINES FROM THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT CHR (V) A2020-016 The Commission on Human Rights (hereinafter “the Commission”) issues this Advisory in light of the withdrawal of the Philippine government from the Rome Statute of the International Criminal Court (“ICC”). The withdrawal became effective on 17 March 2019.1 This Advisory intends to inform its readers about the ICC, its relevance to the Philippines, and of the consequences of the Philippine government’s withdrawal from it. President Duterte’s “war on drugs” has led to more than 20,000 deaths2 from 1 July 2016 to date. According to the UN Report on the Human Rights Situation in the Philippines, about 8,663 of the deaths are a result of the conduct of anti-illegal drug operations, with estimates triple that amount.3 The alarming number of deaths prompted Atty. Jude Josue L. Sabio’s submission of a complaint- letter to the Office of the Prosecutor of the ICC in 24 April 2017. In his letter, Sabio claimed that the President, from his previous position as the mayor of Davao City until his present term as the Head of State of the Philippines, has been “committing extra-judicial executions or mass murders constituting crime against humanity.”4 On February 8, 2018, the Office of the Prosecutor of the ICC issued a statement, saying that it has decided to open a preliminary examination into the 1 Rappler.com, “Philippines leaves International Criminal Court,” 17 March 2019, https://www.rappler.com/nation/225924-philippines-international-criminal-court-withdrawal-march-17-2019 (Last accessed: 12 August 2019). 2 “The Duterte Administration Year-End Report 2017 Key Accomplishments” issued by the Presidential Communications Operations Office provides that from 1 July 2016 to 27 November 2017, there are 3,967 deaths resulting from anti-drug operations, while there are 16,355 deaths under investigation; See also: Aileen Almora, et al. vs. Director General Ronald Dela Rosa, et al., G.R. No. 234359, and Sr. Ma. Juanita R. Dano, et al. vs. The Philippine National Police, represented by PDG Ronald dela Rosa, et al., G.R. No. 234484, 3 April 2018, https://www.lawphil.net/sc_res/2018/pdf/gr_234359_2018.pdf 3 Al Jazeera and News Agencies, 'Near impunity' for drug war killings in the Philippines, UN says, AL JAZEERA, 4 June 2020, available at https://www.aljazeera.com/news/2020/06/impunity-drug-war-killings-philippines- 200604041319925.html (last accessed 14 June 2020). 4 Full text of the complaint-letter submitted by Atty. Jude Josue L. Sabio to the Office of the Prosecutor of the ICC, available at https://drive.google.com/viewerng/viewer?url=http://img.abs-cbnnews.com/2017/downloads/FINAL_ICC_Sabio.pdf CHR: Dignity of all Commonwealth Avenue, U.P. Complex, Diliman 1101 Quezon City Philippines Tel. Nos. (02) 294 8704 (02) 925 3886 situation in the Philippines. The preliminary examination will analyze crimes committed from 1 July 2016 in the context of the "war on drugs" campaign.5 Following the initiative of the Office of the Prosecutor of the ICC, Philippine Presidential Spokesperson Harry Roque announced during a press briefing that “The President welcomes this preliminary examination because he is sick and tired of being accused of the commission of crimes against humanity.”6 However, on 13 March 2018, President Duterte released a statement announcing the withdrawal of the Philippines as a State-Party from the Rome Statute of the ICC. He claimed that “the very considerations upon which the Philippines agreed to be a signatory to the Rome Statute have not been observed nor complied with.” He cited the following reasons for withdrawal: violation of his right to due process of law, lack of jurisdiction over his person, the supremacy of domestic laws, presidential immunity from suit, and lack of the requisite publication in the Philippines’ Official Gazette. 7 A written notification of withdrawal was deposited with the United Nations on 17 March 2018.8 In a statement issued on 20 March 2018, the ICC clarified that the withdrawal had “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.”9 Moreover, the ICC reminded that “withdrawal from the court will not change the Philippines’ obligations to cooperate in a proceeding which had already begun.”10 As such, the Commission strongly advises the Philippine Government to cooperate with the Office of the Prosecutor of the ICC in the conduct of its preliminary examination covering crimes committed by Philippine nationals prior to the effectivity of the withdrawal, to participate in further processes of the ICC, and to respond to the calls of domestic and international human rights mechanisms 11 to investigate, prosecute, and punish perpetrators who allegedly committed extrajudicial killings in relation to the anti-illegal drug campaign. 5 Fatou Bensouda, “Statement of the Prosecutor of the International Criminal Court on opening Preliminary Examinations into the situations in the Philippines and in Venezuela,” 8 February 2018, available at https://www.icc- cpi.int/Pages/item.aspx?name=180208-otp-stat 6 Presidential Communications Operations Office, “Palace welcomes ICC prelim examination; affirms lawful use of force in drug campaign,” 8 February 2018 (Last accessed: 14 August 2019). 7 Rodrigo Roa Duterte, “Statement of the President of the Republic of the Philippines on the Jurisdiction of the International Criminal Court,” 18 March 2018, available at https://www.rappler.com/nation/198171-full-text-philippines- rodrigo-duterte-statement-international-criminal-court-withdrawal (last accessed 15 June 2020). 8 International Criminal Court, “Statement on The Philippines' notice of withdrawal: State participation in Rome Statute system essential to international rule of law,” 20 March 2018, available at https://www.icc- cpi.int/Pages/item.aspx?name=pr1371 9 Id. 8; See also Article 127 of the Rome Statute here: https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf 10 Rappler.com (Lian Buan), “Int’l Criminal Court to Duterte: PH still obliged to cooperate upon withdrawal,” 16 March 2018,https://www.rappler.com/nation/198277-international-criminal-court-duterte-philippines-obliged-cooperate- withdrawal; The Philippines’ situation is similar to that of Burundi’s. Although Burundi had officially withdrawn from the Rome Statute on 27 October 2017, the ICC also retained its jurisdiction over the crimes committed by its nationals until 26 October 2017. See: International Criminal Court, “Burundi - Situation in the Republic of Burundi,” available at https://www.icc-cpi.int/burundi 11 Civil society organizations in the Philippines and abroad, the Human Rights Council and its mechanisms, and the Commission on Human Rights of the Philippines as the country’s independent National Human Rights Institution (NHRI) Page 2 of 11 I. The Philippines and the Rome Statute - A Historical Overview The Philippines has historically been at the forefront of advancing the rule of law and international justice. Prior to the Philippines’ adoption of the Rome Statute, on 24 March 1998, former Philippine President Fidel V. Ramos signed Administrative Order No. 387, s. 1998, creating a Task Force on the proposed establishment of the International Criminal Court. President Ramos acknowledged the Philippines’ “support for the establishment of the ICC as a legal mechanism that will enhance international criminal justice enforcement.”12 Subsequently, the Philippines became a State-Party to the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court held in Rome on 17 July 1998. 13 On 28 December 2000, the Philippines signed the Rome Statute.14 In October 2008, the late Senator Miriam Defensor Santiago filed a resolution urging former President Gloria Macapagal-Arroyo to transmit the Statute to the Senate for concurrence.15 On 11 December 2009, Republic Act No. 9851, or the “Philippine Act on Crimes against International Humanitarian Law, Genocide, and Other Crimes against Humanity” was enacted. The law attempted to mirror the Rome Statute by penalizing crimes under International Humanitarian Law, genocide, and crimes against humanity, and by providing for reparations to victims. 16 However, the definitions of the crimes enumerated under the said law varied from the definitions in the Rome Statute of the ICC.17 In 2010, Senator Santiago again asked former President Benigno Aquino III to transmit the Statute to the Senate for concurrence.18 On 16 August 2011, she delivered a sponsorship speech as Chair of the Subcommittee on the Rome Statute of the International Criminal Court, stating: “By concurring with the Rome Statute, the Philippines will help to strengthen institutions like the ICC to end impunity, and affirm the 12 See the full text of the Administrative Order here: http://www.officialgazette.gov.ph/1998/03/24/administrative-order- no-387-s-1998/ 13 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, “Official Records, 15 June to 17 July 1998, Volume I covering the Final Documents of the Rome Statute of the International Criminal Court and Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court,” available at http://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v1_e.pdf 14 Senator Aquilino Pimentel Jr., et.al vs. Office of the Executive Secretary, Hon. Alberto Romulo, and the Department of Foreign Affairs, Represented By Hon. Blas Ople, G.R. No. 158088, 6 July 2005, https://www.lawphil.net/judjuris/juri2005/jul2005/gr_158088_2005.html#rnt3 15 GMA News Online (Amita Legaspi), “Miriam pushes for ratification of Rome Statute,” 15 October 2018, https://www.gmanetwork.com/news/news/nation/127188/miriam-pushes-for-ratification-of-rome-statute/story/ (Last accessed: 12 August 2019).
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