Philippine withdrawal from the International Criminal Court: “Much ado about nothing” at the Philippine Supreme Court? (Part II)

This post is a continuation of the analysis of proceedings at the Philippine Supreme Court, relating to the withdrawal of the Philippines from the International Criminal Court.

C. R.A. 9851: A Double Bind?

The sufficiency of the “The Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity” or R.A. 9851 in addressing mass atrocity crimes was referenced in the Philippine note verbalenotifying the U.N. Secretary General of withdrawal from the Rome Statute. The relevance of R.A. 9851 touches upon not only complementarity, but also the fundamental question of the lack of a legal remedy, and emerged as an area of significant  focus in the hearings.

A key question posed to the Petitioners related to how the ICC withdrawal would affect rights of individuals, and the impact on the existence of R.A. 9851. What happens to an already existing law, such as R.A. 9851, when a treaty enters into force? The Rome Statue was ratified after theimplementation of R.A. 9851, which encapsulates some of the Rome Statute. The domestic legislation has in fact gone beyond the Rome Statute in some respects, such as the conscription of child soldiers and the prohibition of particular weapons. On other issues however, it jettisons or does not include requirements of the Rome Statute. In effect, while it is argued that the ratification of the Rome Statute results in it becoming “law” per the Constitution, its impact on R.A. 9851 is unclear and was the subject of debate at the hearings.

A contradictory – and perhaps unanticipated – position has been exposed in the hearings, relating to the impact of R.A. 9851 on the right to an effective remedy. Pressed by the bench, both petitioners asserted that R.A. 9851 continues as law, regardless of the ratification of the Rome Statute, and nor does it cease to exist by virtue of the withdrawal. But if R.A. 9851 continues in force, how would this impact the argument regarding the lack of an effective remedy? According to the bench, “reverse complementarity” of the legislation – which gives primacy automatically to the ICC over any domestic prosecution, per Section 17 – would belie the argument of the lack of effective remedies. Of course, this also begs the question – not brought up in court – would this primacy work even ifthe withdrawal goes through, i.e. could the ICC still be an avenue solely via R.A. 9851? Arguably, if this was the case priorto ratification of the Rome Statute, it could continue to be the case post withdrawal – but thereby affecting the lack of an effective remedy argument and basically, standing before the court. The only way in which to overcome this hurdle would be a detailed analysis of the legislation compared with the Rome Statute – and a clarification of recourse to the ICC as a remedy. It is also curious that no case seems to have been filed under R.A. 9851 directly in the courts. Either way, this is a bind for the petitioners, with a trade-off between locus standifor this petition, versus the potential for continued recourse to the ICC (as tenuous as this may be).

D. Neo-imperialism & Chinese aggression  

There were two aspects that came from the left-field at the hearings, that indicated anxieties about the prospects of international justice, as well as Asia-Pacific neighbourhood regional dynamics.

In the Petitioners hearings, while seemingly at a tangent, the court veered into the realm of realpolitik – asking whether the Philippines would get “justice at the United Nations”, and whether the U.S., China and Russia were parties to the Rome Statute. However, this is not irrelevant as it reflects real anxieties of the “imperialist” nature of the ICC and its impact on sovereignty – echoed increasingly forcefully across multiple jurisdictions in the developing world – and also in the U.S. under the current administration.

At the respondents hearing, the acting chief justice brought up the adoption of the crime of aggression at the ICC. The justice put to the Solicitor General that the withdrawal of the Philippines would put in jeopardy a potential avenue of legal recourse, in the event that China invaded Philippine territory and put up bases on the Scarborough Shoal in the West Philippine or South China Sea (terminology depends on who you ask). The Solicitor General asserted that there were other international treaties that could be used instead but did not elaborate on this further. The government has been directed to provide further details in their next written submission. It is however worth noting that the Philippines has in fact won a case at Permanent Court of Arbitration against China relating to its claims regarding the nine-dash line and disputed islands. Arguably – and according to the same justice of the court – the Philippines is squandering this legal advantage by capitulating to the demands of China and by not asserting its legal rights.

IV. Reading the tea leaves…

A few observations on the process and next steps, and going out on a limb, a prediction.

Firstly, on the proceedings – the court was extremely active in its questioning, with a degree of skepticism as to the arguments made. Clearly the role of the court is to test the case before it – which is what questioning of the petitioners by nearly the entire bench did. By contrast, the degree of engagement with the respondents was lower, with the proceedings taking less than a third of the petitioners’ case. The next steps – the final written submissions – will be crucial in addressing the concerns of the court, on the issues raised by it.

The success of one or all of the petitions may be determined essentially on the basis of domestic law, particularly on standing as the preliminary hurdle. Whether the court will read this more expansively and grant the PCICC standing for this issue of public interest is open to debate. On the Senators case – which is more limited and focused on the powers of the President – this has a higher likelihood of success at the initial fundamental issue of standing.

However, even if one of the petitions does make it past the initial threshold, it is anyone’s guess which way the decision will go – I am not optimistic for a few reasons, based only on my impressions at the hearings. I could be wrong – and in fact hope I am – but there were sufficient clues in the hearings to indicate a negative result for the petitioners in this case. There was a palpable reluctance – articulated in the hearings – for the court to be viewed as a means to political ends and to tread on the powers of the President. A cautionary note was struck in the hearings as to the involvement of the court in determining questions from the point of view of a political result, rather than grounded in principles of the Constitution. The questions on complementarity at the hearings exposed deep misgivings as to the role of the ICC vis-à-vis the domestic legal system, and the impression of unwarranted scrutiny. The perception that the legal system is under scrutiny by reason of complementarity has tapped into defensiveness as to the system of justice in the Philippines, articulated by the bench as well as the government. There is also the question whether the court will make its decision before the withdrawal becomes effective, next March – a pointed question in the hearings. The ability of the next administration to sign up to the Rome Statute again was also speculated upon, by the bench.

The hearings before the Supreme Court have widened the scope of the legal argumentation. There are important questions of legality that have been brought up – the constitutionality of the withdrawal from an international treaty, as well as the lack of effective remedies as key to an effective well-functioning legal system. However, there are also real concerns about the scrutiny that the legal system will receive in the event that the withdrawal does not go through. In addition, the “politicization and weaponization of human rights” as highlighted in the note verbale submitted by the government in the notification of withdrawal is an argument that is gaining much traction. At a time when there has been a spate of killings of judges and prosecutors, there is cause for much concern.

From a global perspective, this case is significant for a number of reasons. In a time of increasing skepticism of the ICC, as well as questions relating to the ability to achieve justice through this court, the role of national courts in granting effective legal remedies is even more important. More broadly, the proceedings point to the significance of national courts – constitutional as well as lower courts – in the interpretation of international law, and their impact on international justice and accountability mechanisms. It indicates the need for active engagement with questions of international law, both by international and domestic legal institutions. The case also points to the obvious need for a well-functioning system of justice at the local level.

As a last point, after the completion of the hearings, the Philippines has been “elected” onto the UN Human Rights Council on 12 October. This serves as a fillip to the arguments that the actions of the government are not only defensible under international law, but are acknowledged as essential. The fact that there was no actual election, and that serving on the HRC is not approval of the “war on drugs” is getting little coverage. This only points to the flaws of the current HRC system, and the calls for its revamp which still hold good – but that is a separate blog post in itself.

While the opening salvo of the Solicitor General that this case was “much ado about nothing” couldn’t be further from the truth, the success of the petitions is far from a foregone conclusion.