FLOWERING OF THOUGHT: A nation, a prosecutor, and a world court

JASON BAGUIA

In 2018, Malacañang announced it was withdrawing the Philippines from the Rome Statute, the law by which the country fell within the jurisdiction of the International Criminal Court (ICC).

Spokespersons and supporters of the administration argued that the statute never took effect in the country because it was not published in our official gazette or in a newspaper of general circulation. The 1987 Constitution mandates this publication for domestic laws to take effect.

It was and is, however, clear to many that the Philippine government’s sheer act of withdrawing as a state party to the Rome Statute implies that it deemed itself bound to the treaty. One does not withdraw from something with which one was not in any way involved.

The Constitution, meanwhile, as pointed out by the Center for International Law stipulates a separate criterion for holding an international treaty effective and valid in the Philippines.

“No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate,” the Constitution reads.

The Senate registered their concurrence with the instrument of ratification of the Rome Statute in 2011, after then president Benigno Simeon Aquino III signed it. A report on the ratification is extant and accessible in the official website of the Senate of the Republic of the Philippines.

Dated 25 August 2011, the report noted that the Senate’s concurrence with the instrument of ratification signaled “the country’s official entry” into the ICC.

The report noted that the late senator Miriam Defensor-Santiago sponsored the resolution articulating the Senate’s concurrence. Sen. Loren Legarda co-sponsored the resolution, and as reported by the Philippine Daily Inquirer, 17 senators including her and Santiago voted for it.

They are Vicente Sotto III, Jose Estrada, Francis Escudero, Francis Pangilinan, Panfilo Lacson, Gregorio Honasan, Aquilino Pimentel III, Pia Cayetano, Alan Peter Cayetano, Edgardo Angara, Teofisto Guingona III, Ramon Revilla Jr., Ferdinand “Bong-Bong” Marcos Jr. Antonio Trillanes IV, and Manny Villar.

Only then senator Juan Ponce Enrile did not concur with the treaty’s ratification.

So did the Rome Statute become, in the words of the Constitution, “valid and effective” in the Philippines?

If it did not, what statute did the Philippines withdraw from in 2018?

A report in the ICC website notes that on March 17, 2018, the Philippines “deposited a written notification of withdrawal from the Rome Statute, the Court’s founding treaty, with the United Nations Secretary-General as the depositary of the Statute.”

“The Court,” according to the report, “regrets this development and encourages the Philippines to remain part of the ICC family.”

The withdrawal, as per the Rome Statute, took effect on March 17, 2019. The ICC report, however, also noted that “a withdrawal has 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.”

Such a consideration, “a preliminary examination” to determine whether the Philippines should be investigated was announced by the court on 8 February 2018.

The examination, according to the court’s report was begun to “analyze crimes allegedly committed in this State Party since at least 1 July 2016, in the context of the ‘war on drugs’ campaign” of the Philippine government.

“Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing,” the report reads.

“While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.”

ICC Prosecutor Fatou Bensouda has said that her preliminary examination of the situation in the Philippines continues in spite of its withdrawal from the Rome Statute.

Bensouda’s move is not unprecented. An ICC investigation of alleged crimes against humanity in Burundi continued even when it left the court in 2016.

The ICC does not seek to replace domestic courts in serving justice. It only steps in when a state’s judicial system fails to address crimes of the highest magnitude such as genocide, crimes against humanity, war crimes, and crimes of aggression.

The president of the assembly of states at the global court, O-Gon Kwon has expressed regrets over the withdrawal of the Philippines from the Rome Statute.

“I sincerely hope that the departure of the Philippines from the Rome Statute is only temporary and that it will re-join the Rome Statute family in the future,” Kwon said.

“Encouraging universal adherence to the Rome Statute is key in strengthening our collective efforts to promote accountability for atrocity crimes and the rule of law.”

The South African constitutional court set the precedent for reversal of a government’s decision to leave the international court.

The government of South Africa had notified the United Nations secretary general of the country’s intention to withdraw from the Rome Statute in October 2016. However, the Gauteng High Court in Pretoria, in February 2017 declared the notice of withdrawal unconstitutional and invalid since it was not approved beforehand by parliament.

The Philippine Supreme Court under Chief Justice Lucas Bersamin now has the task of deciding on questions presented to it about the constitutionality and validity of the country’s departure from the ICC, which was not pre-approved by the Senate.

Bensouda is not waiting.