The Departed: Implications of the Philippines’ Withdrawal from the ICC

[Jennifer Tridgell is a Legal Intern at the International Criminal Court. She has previously worked at the Philippines Commission on Human Rights and the High Court of Hong Kong. The views expressed in this article are her own.]

On 19 March 2018, President Duterte withdrew the Philippines from the Rome Statute (“Statute”). This decision is disappointing, yet unsurprising. The President has repeatedly threatened to withdraw, and declared that the International Criminal Court (“Court”) is being used as a “political tool”. Earlier in 2018, Chief Prosecutor Bensouda opened a preliminary examination (“PE”) into whether the Philippine Government is responsible for alleged crimes against humanity committed in the “War on Drugs” from at least 1 July 2016 (“Situation in the Philippines”). To date, Human Rights Watch estimates that the bloody campaign has claimed over 12,000 lives.

In this post, I firstly examine whether the Philippines has withdrawn from the Statute. Secondly, I analyse the Government’s obligations to cooperate with the Court after its withdrawal, especially in relation to the PE. Finally, I consider why the PE into the Situation in the Philippines is strategically significant for the Court’s future and mandate to end impunity for international crimes.

Legal Requirements for Withdrawal

According to international law, the Philippines has withdrawn from the Statute. Under Article 127(1) of the Statute, a State party may withdraw via written notification to the Secretary-General of the United Nations (“UN”). At a minimum, the withdrawal shall “take effect one year after the date of receipt of the notification” (emphasis added). Burundi is the only nation to have effectively withdrawn from the Statute. Since President Duterte has given written notification to withdraw, it shall become effective on 19 March 2019.

Yet it is unclear whether President Duterte has the domestic power to withdraw unilaterally from the Statute. Before the Philippines ratified the Statute in 2011, at least two-thirds of Senators had to give their consent under Section 21, Article VII of the 1987 Constitution for the treaty to become “valid and effective”. This Constitution is silent on the treaty withdrawal process, and Senators have failed to pass a resolution on whether it also requires their consent. Therefore, the Supreme Court of the Philippines might be asked to determine if President Duterte has the power to withdraw. When South Africa tried to withdraw unilaterally from the Statute, this decision was revoked after the High Court ruled that it was “unconstitutional and invalid”. For this post, I assume that the Philippines has withdrawn from the Statute.

State Obligations to the Court

Legal Framework

Article 127(2) of the Statute determines the Philippines’ obligations to the Court after its withdrawal. It seeks to prevent States from using withdrawal to avoid jurisdiction, once they are under scrutiny from the Court (Klamberg, p. 757), by giving effect to Article 70(1)(b) of the Vienna Convention on the Law of Treaties, which stipulates that the termination of a treaty “[d]oes not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”. Article 127(2) states that:

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective (emphasis added).

This Article provides that a State party may have two ongoing obligations after its withdrawal, which I analyse below in relation to the PE into the Situation in the Philippines respectively. Firstly, a State party must cooperate with “criminal investigations and proceedings” which were commenced prior to the date of the effective withdrawal. PEs are probably excluded as they precede criminal investigations. Although it does not state when an investigation commences, the Pre-Trial Chamber (“PTC”) concludes that an investigation clearly has commenced with the decision to authorise it (para. 26). Thus, it is expected that the Office of the Prosecutor (“OTP”) will move quickly so that the Court may authorise a formal investigation into the Situation in the Philippines before 19 March 2019.

The Court took this approach for the Situation in Burundi. Only two days before Burundi’s withdrawal became effective, the PTC authorised a formal investigation under Article 15 of the Statute. While Burundi gave notice of withdrawal shortly after the OTP requested authorisation of this investigation, the Philippines gave its notification just after the OTP opened a PE. Consequently, the OTP is under considerable pressure to conduct this PE, then request and possibly receive the Court’s authorisation for an investigation within one year.

Secondly, a State shall not prejudice the consideration of “any matter” under consideration “by the Court” that was commenced before its withdrawal becomes effective. The meaning of this section is ambiguous. Does a “matter” include consideration of any situation or case? Does “the Court” refer to Chambers or does it encompass the OTP? Schabas (p. 1536) postulates that an expansive interpretation might find that “any matter” is before “the Court” when the OTP is “considering” applying to the PTC for authorisation of an investigation under Article 15 of the Statute.

However, I agree with Kevin Jon Heller that the better view is that a situation is only “under consideration” by the Court once the OTP has asked the PTC to authorise an investigation. I suggest that PEs may not constitute a “matter” before “the Court”. PEs are preliminary, informal processes with “no particular applicable legal framework and no direct legal consequences” (see Dov Jacobs). They are solely initiated by the OTP, which is one organ of the Court and may not embody “the Court”. Instead, “the Court” may refer to Chambers. For example, Article 95 of the Statute refers to Chambers when it uses the same phrase “under consideration by the Court”.

Furthermore, it does not befit the OTP’s role to unilaterally determine States’ obligations after their withdrawal. Amnesty International and Whiting argue for a broad interpretation of Article 127(2) of the Statute, so that States cannot prejudice consideration of PEs and thereby avoid the Court’s jurisdiction. The OTP has sweeping discretion to initiate any PE that is not “manifestly beyond” the Court’s jurisdiction, under Article 15 of the Statute. Yet this power is subject to checks and balances, including the need for the OTP to seek Court authorisation for an investigation in Article 15(3) of the Statute. Ultimately, the Philippines may not be obligated to cooperate with the PE into the Situation in the Philippines after its withdrawal, but it would be obligated under an investigation.

Practical Implications

All is not lost for victims in the Philippines. Regardless of whether or not the Court authorises an investigation before the date of effective withdrawal, the Philippines remains a State party until then. Therefore, the Court has jurisdiction over crimes within its jurisdiction that may have been committed in the Philippines or by nationals of the Philippines up to and including the date of effective withdrawal (see Burundi at para. 24). These crimes are also not subject to any statute of limitations (Article 29 of the Statute). Accordingly, the Court may authorise an investigation into the Situation in the Philippines or other alleged crimes within these limits at any time.

However, even if the Court approves an investigation before the date of effective withdrawal, the Philippines is unlikely to cooperate under Article 127(2) of the Statute. In fact, President Duterte has given express orders to the contrary. This does not diminish the importance of States respecting their obligations, but it follows that the OTP faces greater hurdles in carrying out its duty. Under a more amenable Government, the Philippines may freely choose to cooperate with the Court, even when it is not legally obliged to do so. For example, the Philippine Government has compensated victims under the Marcos dictatorship of the 1970s and 1980s.

Importance of the Preliminary Examination

The PE into the Situation in the Philippines is important for two reasons. Firstly, the Court may bolster its reputation as a truly international institution, because the PE is the first time that the Chief Prosecutor has set her sights on Asia. It is the most “underrepresented region” at the Court, with just 35% of States ratifying the Statute (Kim, p. 254), and abstentions from some of the world’s most populous nations, including China, India and Indonesia. The region with the next lowest rate of representation is Africa which, despite having a comparable number of States, has almost double the number of signatories as Asia (Kim, p. 254). With the global balance of power shifting to Asia, the OTP has made a strategic decision to initiate the PE in the Philippines and have a place in the region’s future.

By examining the Philippines, the OTP gains not only the opportunity to reshape Asia’s notoriously uneasy relationship with the Court (generally, see Chesterman, Sperfeldt and Palmer and Schuldt), but also to address criticism that the Court is inappropriately targeting African nations. Recently, the OTP has focused further afield with PEs into the Situations in Ukraine, Iraq/UK and Venezuela, amongst others.

Secondly, the PE in the Philippines may help to deter bloody anti-drug campaigns around the world. The OTP has placed the War on Drugs in the global spotlight, which may put pressure on the Philippines to reconsider its policies. However, South-East Asia is notorious for the world’s harshest drug penalties and their high popular support. Over 18 months into the War on Drugs, President Duterte still enjoys 80 percent approval ratings. Perhaps “inspired” by Duterte, Indonesia’s President Widodo has ramped up anti-drug rhetoric and called for police to shoot drug offenders. Whenever there are executions of drug traffickers, President Widodo’s approval ratings surge. These hard-line regional attitudes towards drug offences not only make it more difficult to encourage Filipino victims to come forward, but also to persuade nations to abandon their violent practices towards drug offenders.

Conclusion

In 1989, Trinidad and Tobago proposed the creation of an international criminal court to address drug trafficking. It is with a twinge of irony that the resulting Court will now be (rightly) used to seek justice for drug dealers and addicts who have been allegedly murdered in the War on Drugs.

The Philippines’ decision to withdraw from the Statute is disappointing and disturbing. Every day that President Duterte’s brutal campaign against drugs continues, the body count swells and impunity reigns. Thankfully, even if an investigation is not approved before the date of effective withdrawal and the Philippine Government refuses to cooperate, the Court will always have jurisdiction over these alleged crimes.