With a fatalistic twinge, President Duterte was quoted as having said this last Wednesday, as he considered the prospect that the ICC would judicially proceed against him for alleged crimes against humanity in relation to his brutal “war on drugs.” Although conceding he would not be able to eradicate the illegal drug menace by the time he leaves office in 2022, he has vowed to take even “harsher” measures in pursuing his unrelenting campaign.
Two batches of information/complaint had been submitted to the ICC, and the latter’s Chief Prosecutor promptly initiated preliminary examination of the complaints, the first step in a long process. Reacting angrily, Duterte ordered the country’s formal withdrawal from the ICC, believing such a step would negate the Prosecutor’s further actions against him. Since then, Malacañang has repeatedly declared it would not cooperate with the court.
The government’s notification of withdrawal was submitted to the United Nations Secretary General a year ago. It takes effect tomorrow, March 17, in accordance with the procedure set by the Rome Statute – the international agreement establishing the ICC.
Only days after the withdrawal, however, the ICC issued a formal statement pointing out (quoting from Article 127 of the Rome Statute) 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 becomes effective…” Specifically, Article 127 (Section 2) says that a state’s withdrawal “will not affect its cooperation with the ICC in connection with criminal investigations and proceedings,” stressing that the state has a duty to cooperate with processes that “commence prior to the effectivity of the withdrawal.”
For its part, just one day before the ICC statement, the International Court of Justice (ICJ) released an open letter to President Duterte. Through its Secretary-General Sam Zarifi, the tribunal countered the legal bases cited by Malacanang in its withdrawal notification, including the claim that ratification had no effect because this was not published in the Official Gazette.
It was a stinging rebuke. “The Philippine government’s submitted justifications for withdrawing from the ICC,” Zarifi wrote, are “a litany of poorly thought out pseudo-legal arguments and self-serving statements that focus on President Duterte’s fear and resentment at facing questions for the horrific campaign of extrajudicial executions that his government has explicitly condoned.”
Zafiri affirmed that the conduct of a preliminary examination of the information or complaint received by the ICC Prosecutor on the drug-related killings is “entirely consistent with the principle of complementarity” under the Rome Statute.
Upholding Philippine ratification of the Rome Statute, Zafiri pointed out, are the enactment by Congress in 2009 of RA 9851 (An Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes against Humanity), and the active government campaign to get former UP College of Law Dean Raul Pangalangan elected as ICC judge. Pangalangan remains as ICC judge to this day.
We understand where the ICJ’s outrage is coming from. Composed of 60 judges and lawyers from across the world, the tribunal seeks to promote and protect human rights “by using its unique legal expertise to develop and strengthen national and international justice systems.”
In light of these weighty statements from the two international courts, President Duterte may not find solace in the Supreme Court’s inaction – before the withdrawal’s effectivity on March 17 – to rule on two petitions that had been filed before it, seeking the nullification of the withdrawal on constitutional grounds.
The tribunal held oral arguments on the petitions more than six months ago. Until its en banc sitting last Tuesday, the SC had not issued a ruling on the issues raised.
Had the Supreme Court denied the petitions, it would have strengthened Malacañang’s contention that it did make the right move to withdraw from the ICC.
Coincidental with Duterte’s fatalistic statement quoted above, the US State Department released its 2018 “Country Reports on Human Rights Practices.”
On the Philippines, the report noted that “extrajudicial killlings have been the chief human rights concern in the country for many years and after a sharp rise with the onset of the antidrug campaign in 2016, they continued in 2018, albeit at a lower level.”
“There were numerous reports that government security agencies and their informal allies committed arbitrary or unlawful killings in connection with the government-directed campaign against illegal drugs,” the report added.
The USSD report likewise noted that despite President Duterte’s statement that unlawful police actions would be investigated, the government inquired into only “a limited number” of the thousands of reported abuses. It stressed that “slow judicial processes remained an obstacle to bringing government officials allegedly involved in human rights abuses to justice.”
President Duterte may opt to brush aside the State Department report, because he knows that while it deplores the inadequate actions taken by his administration and all previous ones on human rights violations, the Americans will go no farther than that when US client-states are involved.
But the strongest reaction by the Duterte government is reserved for the documented reports submitted to the United Nations by independent human rights organizations, specifically Karapatan and other human rights defenders in the Philippines. It has resorted to tagging them as “front organizations of the CPP-NPA” or worse, labelling them as “terrorists.”
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Published in Philippine Star
March 16, 2019