Why the Philippines’ ICC exit could ‘undermine years of quiet diplomacy’

Duterte’s decision to withdraw the Philippines from the International Criminal Court has prompted outcry from certain members of the opposition and human rights groups. But what exactly is he walking away from? Southeast Asia Globe breaks down the purpose of the ICC, and what a withdrawal really means for the Philippines

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March 16, 2019
Why the Philippines’ ICC exit could ‘undermine years of quiet diplomacy’
Duterte on February 9, declared himself beyond the jurisdiction of an International Criminal Court probe into thousands of deaths in his "drugs war", claiming local laws do not specifically ban extrajudicial killings. (Photo by - / AFP)

On Sunday, 17 March, the Philippines will become just the second country to withdraw from the International Criminal Court (ICC) since its inception in 2002, assuming President Rodrigo Duterte gets his way.

He declared his intention to pull the country out of the treaty last year after ICC prosecutor Fatou Bensouda announced preliminary examinations of the situation in the Philippines “in the context of the ‘war on drugs’”.

Two petitions have since been sent to the Supreme Court challenging the withdrawal: one created by a team of opposition senators including outspoken Duterte critic Antonio Trillanes, and the other by the Philippines Coalition for the International Criminal Court. The two groups’ arguments focus on Duterte making the decision to withdraw himself, without the Senate’s concurrence. If the Supreme Court does not act, the ICC will count one member fewer on Sunday.

So, what is the ICC?

Its full name is the Rome Statute of the International Criminal Court – the Rome Statute being the treaty that established the ICC.

In its own words, it is “a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

“It can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling genuinely to do so.”

The ICC does not have its own police and relies on the cooperation of party states – countries that are members of the ICC – to bring investigated criminals to the court.

So far, the ICC has publicly indicted 44 people through 11 different investigations.

Sounds good. What’s there to complain about?

Of those 11 investigations, ten are in Africa. Reading through the list of people indicted by the ICC reads like a who’s who of African warlords and has led to the ICC being criticised for unfair targeting. Because of this, both Gambia and South Africa made moves to follow Burundi in withdrawing from the treaty, but eventually opted to remain.

Criticisms have also been levelled at the court’s complexity and efficiency, with investigations and trials taking many years. The trial of former Congolese Vice President Jean-Pierre Bemba began in 2010, and six years later he was found guilty on two counts of crimes against humanity and three counts of war crimes and sentenced to 18 years in prison. Just two years later, those convictions were overturned.

Elsewhere, US President Donald Trump has been a vocal critic of the ICC and accused it of undermining sovereignty at a talk at the UN General Assembly in 2018, saying, “as far as America is concerned, the ICC has no jurisdiction, no legitimacy and no authority.”

The ICC has long rebuked this criticism, reiterating that its fundamental principle is that of “complementarity”: It is a court of last resort, and does not have the capacity to override properly functioning courts.

Rome Statute judge Sang-Hyun Song, who was also the second president of the ICC, defended the court during a keynote speech at the 20th anniversary celebration of the ICC:

“There are many challenges – competing interests, limited resources, political opportunism, cultural differences, different visions and so on – but at the end of the day, there are also undeniable shared values and common goals that humans everywhere hold dear,” he said.

“The ICC will continue its mission from now into the future as a giant leap forward in the global fight against impunity.”

Where does the Philippines come in?

In February 2018 the ICC announced that it would be beginning preliminary investigations into the Philippines.

Its case centres on reports that many of the deaths related to Duterte’s infamous drug war have been caused by police acting outside of the law.

“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 extrajudicial killings in the course of police anti-drug operations,” an ICC statement announcing the investigation read.

More than 5,000 people have been killed since July 2016 in President Duterte’s so-called war on drugs, according to data from the Philippine Drug Enforcement Agency. Human Rights Watch claims that number is over 12,000.

A little over one month after the ICC’s announcement, Duterte delivered a characteristic riposte, declaring that the Philippines would be withdrawing from the ICC after the mandatory one year wait.

Policemen gather over the body of a suspect killed during an anti-drug operation at an informal settlers’ area near a port in Manila on November 10, 2016. Photo: Ted Aljibe / AFP
What are Duterte’s reasons for leaving?

“It’s quite obvious that it’s something to do with the cases that are currently being processed in the ICC,” political analyst Aries Arugay told Southeast Asia Globe over the phone.

The reasons that Duterte has given are far more opaque. He alleges that the Rome Statute was never published in the Official Gazette – the country’s official newspaper – as is required by Article Two of the Civil Code. He also criticised the ICC and the UN of being politicised.

Duterte has long had friction with international bodies such as the UN. In 2017, he said in a speech to overseas Filipino workers in Vietnam that he would slap UN special rapporteur Agnes Callamard if she investigated him for his drug war.

“I will slap her in front of you. ‘Why? Because you are insulting me. Why? Because you yourself do not believe in the research of your own organisation. You are fucking me and I do not want it,’” Duterte said, addressing the latter part to Callamard.

Arugay said that Duterte’s reaction to the ICC investigation is consistent with his behaviour, but is inconsistent with the Philippines’ previous policy of defending human rights.

Can the ICC still investigate Duterte if the Philippines withdraws from it?

In short, yes.

“From some of President Duterte’s past statements, it appears that he either doesn’t understand or objects to the reality that the ICC retains jurisdiction over a state during the time it was a party to the Rome Statute, even if the state withdraws from the Statute,” Zachary D. Kaufman, a lecturer at Stanford Law School and senior fellow at the Harvard Kennedy School Carr Center for Human Rights Policy, wrote in an email to Southeast Asia Globe.

“So, President Duterte and others in the Philippines will still be subject to the ICC’s jurisdiction for that time period even after the country withdraws.

“In addition, crimes committed in the Philippines after Sunday could come under the ICC’s jurisdiction if referred by the UN Security Council. So, even with this withdrawal, alleged atrocity perpetrators in the Philippines remain subject to the ICC for crimes committed since November 2011 and could be subject to the ICC for future offenses,” Kaufman wrote.

So what difference will it make if and when the Philippines leaves?

It will not affect potential ICC prosecution of those who committed crimes before Sunday, but it will likely place the Philippines on bad footing with the international community.

It sends out mixed messages, argues Arugay, about whether the Philippines is a pro-human rights country or not. He also noted that it could “undermine years of quiet diplomacy work that the Philippine government has been doing, for example, trying to convince neighbour migrant-receiving countries to support a migrant workers’ convention.”

For decades the Philippines has railed against abuses of its overseas workers, a subject Duterte himself often speaks passionately about. Last year, he lashed out against the abuse of domestic workers after a Filipino maid’s body was discovered in a freezer in Kuwait

Kaufman agrees that it could affect the Philippines’ international image.

“Being a state party to the treaty of the world’s first and only permanent international criminal tribunal holds great symbolic weight. Especially given that ratifying the Rome Statute affirmatively exposes a state’s citizens to the ICC’s jurisdiction,” he wrote.

The withdrawal decision may have domestic consequences too, according to Arugay, who says that it could “further polarise” the country. Duterte supporters are likely to side with their President in feeling that it is an unfair attack on someone they elected, while it “gives cannon fodder” to his critics who feel he consistently tries to evade culpability.

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