MANILA — The Philippines became the second country in the world to withdraw from the International Criminal Court, in what critics believe is an attempt to evade an investigation into President Rodrigo Duterte’s bloody war on drugs.
Duterte in turn threatened to arrest ICC prosecutor Fatou Bensouda if she set foot in the Philippines.
Its departure is the latest blow in a rough weekend for the court, as Secretary of State Michael Pompeo announced Friday the United States would not issue visas to ICC staff members investigating alleged abuses of troops in Afghanistan.
The international body based in The Hague was designed to investigate and prosecute genocide, crimes against humanity, war crimes and crimes of aggression when domestic courts fail to do so. However, African countries like Burundi and Gambia have slammed it as biased toward the West. Burundi was the first to leave the court in 2017. Myanmar, which is also not a state party to the ICC, has also decried it amid a probe into its alleged human rights violations against the Rohingya Muslim minority.
Philippine Foreign Secretary Teddy Locsin brought up Pompeo’s remarks Monday, adding that the country’s inclusion in the ICC “has a disarming effect on military alliances, to put it as politely as possible.”
The effectiveness and relevance of the ICC has been questioned by the United States before. National security adviser John Bolton said last year that the United States, which is not a state party to the Rome Statute that founded the court, would not cooperate with the investigation on the troops’ alleged crimes and would “let the ICC die on its own.”
Amnesty International slammed the Philippines’ withdrawal as a “futile attempt” to escape international justice. “States at the U.N. Human Rights Council must launch an independent, international investigation into the human rights situation in the Philippines, including the thousands of extrajudicial killings still being committed,” it said.
Filipino lawyer Jude Sabio, who represents two self-confessed assassins allegedly hired by Duterte, first raised concern about systemic state-sanctioned killings to the court in 2017. A complaint from families of victims of extrajudicial killings followed last year. The Commission on Human Rights in the Philippines later revealed that more communications on Duterte and his drug war were filed before the ICC, though it did not name who the parties were.
The president himself has bragged about killing people on more than one occasion — although officials under him have dismissed the statements as an exaggeration. Over 5,000 have been killed in police operations under his drug campaign, but human rights watchdogs estimate over 20,000 such deaths have taken place during Duterte’s term.
The withdrawal threatens to undo about a decade’s work of pushing for the treaty, which ended with the Philippines’ ratification of the Rome Statute in 2011. One of its previous proponents, Harry Roque, later served as Duterte’s spokesperson — but he now echoes the government line that killings are not state sanctioned and local courts are capable of acting on them.
“Personal feelings aside, the president did make the correct decision to withdraw,” he said on Monday.
While Locsin and Roque refer to the withdrawal, the Malacañang Palace denies that the Philippines ever became a state party at all. Duterte’s legal counsel and spokesperson Salvador Panelo claims that the Rome Statute was never published in an official government publication, so it never came into effect.
“The Philippines cannot leave that which has never joined in the first place,” Panelo said. “Should the ICC proceed with its undertakings relative to the Philippines . . . it can only mean that it is bent on interfering with the sovereignty of our Republic.”
But experts and critics dismiss this as legal acrobatics. Abdiel Fajardo, national president of the Integrated Bar of the Philippines, told The Washington Post that publication as a requirement for treaty validation “cannot be found in our statute books.”
Whether such a withdrawal is even possible is also being questioned at home. Opposition lawmakers and the Philippine Coalition for the International Criminal Court submitted separate petitions questioning the unilateral withdrawal of the Philippines from the court.
“A proper interpretation of the Philippine Constitution shows that, at the very least, what is required to withdraw from the Rome Statute is the same action that the legislature performed in order to make the Rome Statute valid and effective in the first place . . . through a concurrence of at least two-thirds of members of the Senate,” Fajardo said. “The Supreme Court may still render a decision affirming or nullifying the withdrawal.”
Human rights advocates worry that if the Philippines departure goes unquestioned, families of victims slain in the drug war will not have a court of last resort.
Under Article 127 of the Rome Statute, the ICC still has jurisdiction over crimes committed before the departing country’s effective exit date. Sabio, the complainant representing Duterte’s alleged former hit men, believes the president is “resorting to a legal pretext” to escape responsibility for the culture of impunity under his term.
“But I do not lose hope, because the ICC can still open an investigation and hold him criminally accountable,” he told The Post. “His exit will not stop an ICC probe.”