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

The Philippine Supreme Court has just completed hearings in a legal challenge relating to the Philippine withdrawal from the International Criminal Court. On the heels of the South African High Court ruling against the withdrawal from the ICC on the grounds of unconstitutionality and thereby invalidatingthe withdrawal, this case in the Philippines bears watching.

I attended the three days of hearings at the Philippine Supreme Court in the case of Senator Francis Pangilinan, et al. vs Alan Peter Cayetano et al. & PCICC et al. vs Salvador Madialdea et al.,and distill the proceedings based on the focus of the bench on particular issues.

The post is divided into two parts – the first deals with the background of the case, the proceedings and context before the Supreme Court, and two areas of argumentation. The second part addresses one legal issue, and presents concluding observations.

I. Background

The “war on drugs” in the Philippines has unleashed an unprecedented campaign of brutality in the country. From the commencement of the term of the current President, in June 2016, this crackdown has cost between 4,000– 20,000 lives. As part of this campaign, “drug lists” have been formulated – naming those alleged to be part of the drug economy – and many on these lists have been killed, including sitting mayors, and judges. Extrajudicial executions by the police as well as by vigilantes, allegedly paid by the police, have become the norm.

In 2017, two communications were forwarded to the ICC, by Philippine lawyers, civil society organizations and with the backing of senators. On 8 February 2018, the Office of the Prosecutor of the ICC (‘OTP’) announced the opening of a preliminary examination. On 17 March 2018, the Philippines deposited the instrument notifying withdrawal from the ICC. Per Article 127 of the Rome Statute, the withdrawal will take effect one year from notification, i.e. March 2019.

For context, the Philippines was an active participant in the drafting of the Rome Statute.It signedthe Rome Statute in December 2000, with eventual ratification in 2011. A domestic law, Republic Act No. 9851 of 2009 “The Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity” (‘R.A. 9851’), was passed before the ratification of the Rome Statute. This legislation has replicated certain key provisions of the Rome Statute, but not all.

II. Supreme Court proceedings

The Philippine Coalition for the International Criminal Court (‘PCICC’), and in a separate petition, six senators (‘the Senators’) filed two petitions challenging the legality of the withdrawal from the ICC before the Philippine Supreme Court. A new petition by the Integrated Bar of the Philippines has recently been added to the case. The arguments and remedies sought by the petitioners are also slightly different – while the PCICC asks for the notice of withdrawal to be declared void ab initio, the Senators ask for a declaration that the withdrawal is ‘invalid or ineffective’ without the concurrence of at least 2/3^rdof the Senate. Both ask for the cancellation or revocation of the notice of withdrawal. The response of the Office of the Solicitor General to the petitions is here (along with audio files of the proceedings).

The PCICC was heard on 28 August and the Senators on 4 September with a brief presentation of arguments, and extensive questioning by the Supreme Court sitting en banc, signifying the importance of the matter. The third and last day of hearings of the case took place on 9 October 2018. The government, represented by the Solicitor General, was heard, with the proceedings taking just over an hour and a half. The Integrated Bar of the Philippines was included in the proceedings at the last hearing – but did not have the opportunity to present arguments before the court. All parties now have thirty days within which to file written memoranda, after which the court will pronounce its decision.

As an aside – but not entirely unrelated – the first hearing of the petitioners coincided with the first day in office of the Supreme Court Chief Justice Teresita De Castro – an appointment mired in controversy, due to the unseemly ousting of the previous Chief Justice Maria Lourdes Sereno in May of this year. On the potential implications, more here.The hearings for the Senators was also delayed, due to the denial of a motion for the jailed opposition senator Leila de Lima – one of the senators who has approached the court in this case – to argue the case before the Supreme Court. In continuing turmoil,on the day of the hearing for the Senators, an arrest warrant issued by the President revoking a previous amnesty against another one of the six petitioner senators – also a key opponent of the President – was made public. And continuing the trend of significant legal events at each of the three hearings, the last hearing was the last day in office of the Chief Justice, after a 41-day term. She was not present at the last hearing, and will not participate in the decision of the court in this matter.

III. Legal arguments

The arguments at the Philippine Supreme Court were based on domestic law as well as international law. The posts do not address all the nuances of domestic law, but present the more contested arguments at the hearings.

It was notable that the petitioners were heard for over six hours, with a little over an hour and a half for the respondents. The bench posed multiple questions and the focus on specific aspects of the submissions indicate their approach towards the case.

A. Domestic law: Locus standi and treaty withdrawal powers

Locus standi and injury was a key focus of the bench in questioning the PCICC. The bench queried whether the individual petitioners of the PCICC had suffered personal injury, asking why no victims were part of the petition. The PCICC conceded a lack of direct injury but based their challenge on the lack of effective remedies. This reliance upon the lack of an effective remedy as the basis for standing would impact arguments of the PCICC relating to complementarity and R.A. 9851 (dealt with sub-sections B & C).The Senators asserted injury alleging an impairment of the constitutional functions of the Senate, with a concomitant interest in the fulfillment of their constitutional obligations. The bench was noticeably more lenient in its questioning of the Senators on locus standi.

The next major line of arguments related to the separationof powers of the President and the Senate, relating to the power to enter into – and more importantly in this case, to withdraw – from a treaty. The Philippine Constitution in Article VII, Section 21 stipulates that no international treaty or agreement shall be “valid and effective” unless there is the concurrence of at least 2/3^rd of all members of the Senate. The provision is however silent regarding the allocation of powers to withdraw from a treaty, with no previous Philippine precedent or practice to draw from. While not in the written submissions, at the 4 September hearings an attending Senator petitioner, on questioning by the bench, confirmed that 17 treaties that have since been ratified by the Senate  include a specific clause indicating that in case of withdrawal, 2/3^rdmajority approval of the Senate is required. This is also the substance of pending Senate Resolution 286 – which despite having signatures of 14 of the 24 senators, a majority, has not been adopted. However, Senate Resolution 546 (2011) – which gave its concurrence to the Rome Statute – does not contain provisions as to withdrawal. This latter-day inclusion of a provision as to withdrawal could be interpreted in one of two ways – either,that this was not the rule and going forward, new practice is being established by the Senate; Or, that the breach of the rule by the Rome Statute withdrawal has necessitated such an explicit provision. Either way, the determination of the point will have an impact on the powers of the President in relation to treaties.

The case presented by the government was briefly, a total rebuttal of the arguments above – that the petitioners do not have the locus standito approach the court, for the reasons of a lack of direct injury, and that the powers of the President are clear per the Constitution, regarding his ability to enter into, and withdraw from treaties. While the SG presented these arguments, the bench did not focus on this line of argumentation.

B. International & foreign law: (Ir)relevance of case law, & jitters regarding complementarity

While both petitioners relied extensively on the success of the South African withdrawal case in their submissions, the bench pointed out the case was merely persuasive, emanating from a jurisdiction with a different system of governance, i.e. parliamentary. Despite substantial reliance on it, the case received scant attention from the bench. The government had harsh words in relation to the reliance upon foreign law by the petitioners. According to the Solicitor General, the petitioners were “mesmerized” by the decisions of the South African and the U.K. courts, and there was a “specious reliance” on foreign law.

Article 17 of the Rome Statute and the interpretation of complementarity – that courts must be “unwilling or unable” to prosecute cases – was questioned rigorously. Judges questioned whether the PCICC had filed cases in lower courts, or pursued investigations. A judge asserted that with false cases on the basis of the drug war being dismissed, the effective use of the writ of amparo, and with acquittals taking place, how would the courts be deemed “unwilling”? The bench averred to the lack of data presented in order for the court to determine whether in fact there was a failure of the judicial system that would permit the ICC to step in, with the emphasis on the need for fact-based evidence, and not merely anecdotal references. The bench also questioned the assertion that there was insufficient normative basis for protection of rights, citing the Anti-torture Act, Anti-enforced or Involuntary Disappearance Act, R.A. 9851, among others. The perception that an investigation by the ICC would impugn the legal system clearly weighed on the bench, with the preference expressed for greater self-reliance, as well as the Philippine judiciary not being “second class”. The relevance of other mechanisms to prevent impunity, such as the creation of ad-hocinternational tribunals, was also mooted by the bench. According to the Solicitor General, there has been no violation of international law and no need for the “interference of foreigners” in the system of justice that is working well in the Philippines.

At the respondents hearing, the bench focused extensively on the scope of treaties and customary international law in regard to domestic law and the Constitution, with much of the questioning by the bench akin to leading questions in a trial. The court drew the attention of the Solicitor General to distinctions between language in previous constitutions (the 1987 & 1935 constitutions) in order to ascertain the status of customary international law and treaty law as “valid and effective law”, as a point for further clarification. This was brought up in relation to the grey area pertaining to “non-self executing” treaties, including human rights treaties such as the Rome Statute. The bench pointed out that the Philippine Supreme Court obiterhas not clarified the distinction between generally accepted principles of international law, and treaty law. This was in relation to the question of what and how international law applies in a domestic setting and is to be clarified further in the next submission.

An aspect brought up by the bench was the pointed emphasis on the acceptanceof the notification of withdrawal by the U.N. secretariat as well as the ability to subsequently withdraw this “notification of withdrawal”. The court allude to this being a potential source of embarrassment to the President, and thus a “political question” well within his remit to decide upon. However, the approach to arrive at this was rather tortured – it was premised on the logic that as Article 127 of the Rome Statute did not explicitly mention the ability to take back a withdrawal, if the Supreme Court made a decision on this basis, it could be contradicted by the ICC and thus amount to embarrassment in foreign relations, which would equate to a political question to be decided solely by the President.

[Continued in Part II]