The Philippines has become only the second country worldwide to officially withdraw from The Hague-based International Criminal Court (ICC) after having ratified the court’s enabling Rome Statute.
Philippine President Rodrigo Duterte’s government officially pulled out of the ICC on March 18, nearly eight years after joining it in 2011. The only other country worldwide to leave after accepting the court’s jurisdiction is Burundi, another nation accused of state-sponsored atrocities.
Manila’s withdrawal comes as the ICC reviews accusations of crimes against humanity related to Duterte’s lethal war on drugs campaign, which rights groups say have contributed to as many as 20,000 deaths since it was first launched in mid-2016.
Duterte was elected in part on an anti-crime ticket and the drug war has been one of his administration’s signature policies. It has also raised the hackles of opposition politicians, rights groups and others for allegedly running roughshod over due process of law.
In February 2018, ICC prosecutor Fatou Bensouda opened a preliminary examination into charges filed by Filipinos, including opposition politicians, against Duterte and at least 11 of his top officials over alleged illegal killings in the brutal campaign.
Duterte’s administration accused the ICC of undue interference in the country’s domestic affairs and of lacking jurisdiction over what rights groups and government critics have alleged are tantamount to mass atrocities.
Last March, in a speech to soldiers, Duterte threatened to throw ICC investigators to “crocodiles” if they dared to enter the country, saying at the time that the ICC’s initial probe into the drug war was a “waste of time and resources.”
Duterte, a trained lawyer, said then he welcomed the probe and would argue his case before the tribunal if necessary. Yet he later ordered police and military not to give information to outsiders, including UN investigators, about the drug war and its death toll.
Duterte has maintained throughout that he has not broken any laws and that domestic judicial institutions are sufficient to adjudicate any criminal charges that could arise from the deaths.
Police and other officials have consistently claimed that the shooting of suspects were legal acts of self-defense. The ICC is warranted under the Rome Statue to try cases where domestic legal venues have been co-opted or corrupted by local political leaders.
Local courts handed down their first major drug war-related prosecution last year, a verdict which saw law enforcement officers sentenced to life in prison for killing Kian Loyd delos Santos, a teenager falsely accused of drug trafficking. The police murder was captured on CCTV footage and sparked massive anti-drug war street protests.
There are still thousands of drug war deaths supposedly under investigation, but there is little indication so far that justice will be served in any of the cases. Many of the killings are attributed to shadowy vigilantes that don’t clearly point to state forces.
According to the ICC’s Rome Statute, the Philippines’ withdrawal will not “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.”
Last year, the president of the ICC’s member assembly, O-Gon Kwon, tried to dissuade the Philippines from withdrawing from the court, encouraging both sides to “engage in dialogue.” Those overtures failed to sway Duterte’s government, which has dug in on nationalistic grounds against the ICC.
“Certainly, we will not allow any attempt at interfering with the sovereignty of this country,” presidential spokesperson Salvador Panelo said after the Philippines officially withdrew from the ICC on March 18.
He warned that if ICC investigators were insistent on entering the Philippines, “I will smile at them and tell them nicely, ‘You cannot do it here. If you persist, you will be deported.’”
The ICC can still push ahead with investigations and potentially even prosecute suspects, including Duterte, alleged to be involved in crimes against humanity.
“The court retains its jurisdiction over crimes committed during the time in which the state was party to the statute and may exercise this jurisdiction even after the withdrawal becomes effective,” ICC prosecutor Bensouda tweeted on March 18.
Still, Manila’s withdrawal will inevitably pose big obstacles to the ICC’s ongoing investigations.
“Withdrawal will have the effect of preventing the prosecutor from receiving (or seeking) evidence of events that transpired after 16 March 2019,” Diane Desierto, a human rights law expert at America’s University of Notre Dame, told media in the Philippines.
“The preliminary examination will be restricted to events covered in the February 2018 decision to open preliminary examination of the prosecutor,” she added.
The ICC is empowered to issue warrant arrests and subpoenas against Filipino officials with sufficient evidence of wrongdoing, but much will depend on the willingness of the Philippine government’s and other state agencies’ cooperation.
Acting Supreme Court Chief Justice Antonio Carpio has warned that the Philippines’ withdrawal will hamper its future ability to invoke international law to protect its interests, especially in regard to its ongoing territorial disputes with China in the South China Sea.
Until March 18, the Philippines had been among only six East Asian countries – namely Japan, South Korea, Mongolia, Cambodia, and Timor-Leste – to have ratified the ICC’s Rome Statute.
Significantly, perhaps, the Philippines’ position is now more in-line with the United States, which has renewed its assault on The Hague-based ICC’s credibility and legitimacy to adjudicate international human rights complaints. (The US is not a signatory to the Rome Statute.)
Days before Manila’s withdrawal, US Secretary of State Mike Pompeo warned against any ICC investigations into alleged war crimes committed internationally by US soldiers or intelligence service agents, particularly in Afghanistan.
“I’m announcing a policy of US visa restrictions on those individuals directly responsible for any ICC investigation of US personnel,” the chief American diplomat told a March 15 news conference in Washington.
Last year, US National Security Advisor John Bolton openly characterized the court as “illegitimate”, and warned that Washington “will use any means necessary to protect our citizens and those of our allies from unjust.”
He added the Trump administration “will not sit quietly” if US citizens and those from key allies such as Israel were targets of any ICC investigations.
“We will ban its judges and prosecutors from entering the United States,” Bolton said, warning that Washington “will sanction their funds in the US financial system, and, we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”
Critics say the Trump administration’s defiance of the ICC’s and other international legal institutions’ mandates has emboldened authoritarian leaders like Duterte to shirk accountability abroad for crimes committed at home.
That puts the ICC between a rock and a hard place as it ponders its next move in tackling the alleged crimes against humanity committed in Duterte’s bloody drug war. The mass killings, meanwhile, continue apace with no end in sight.