The Philippines’ membership in the ICC comes to an end

Coalition for the International Criminal Court

As of 17 March, the Republic of The Philippines is no longer a member of the International Criminal Court (ICC) – the world’s only permanent institution to investigate and prosecute genocide, war crimes, crimes against humanity, and the crime of aggression. The Philippines is the second country to leave the ICC after Burundi withdrew in 2017.

President Rodrigo Roa Duterte had announced the withdrawal one month after the Prosecutor of the ICC, Ms. Fatou Bensouda, announced the opening of a Preliminary Examination in The Philippines, which would look, inter alia, into alleged crimes against humanity committed in the country, including the possible criminal responsibility of Duterte himself. Preliminary examinations are intended to determine whether a full ICC investigation is warranted, considering whether the Court would have jurisdiction over the alleged crimes or if national prosecutions are being undertaken, and whether the interest of justice would be served by opening an investigation. In the Philippines situation, the ICC prosecutor has been examining alleged crimes in the form of extrajudicial killings in the context of President Rodrigo Duterte's 'war on drugs' since at least July 2016.  According to Human Rights Watch in its World Report 2018 , “the Duterte administration’s “war on drugs” has resulted in the deaths of thousands of mostly poor Filipinos. Philippine Drug Enforcement Agency (PDEA) data indicates that police operations resulted in the deaths of 3,906 suspected drug users and dealers from July 1, 2016, to September 26, 2017. But unidentified gunmen have killed thousands more, bringing the total death toll to more than 12,000, according to credible media reports.”

Civil society reacts

Following Duterte’s announcement in March 2018, many local and international organizations, including the Coalition for the ICC, condemned the decision. Atty. Ray Paolo J. Santiago, Chairperson of the Philippines national Coalition for the ICC (PCICC) noted that the move goes “against the aspirations of the Filipino people for justice and accountability. It goes against addressing impunity for the most atrocious crimes. The Filipino people’s hopes and dreams for holding human rights violators accountable should not be doused by a single man’s fear of accountability.”

In reaction to the 2018 announcement, Etta Rosales, former Commission of Human Rights Chair, and former Chair of the PCICC, reflected that, “when despotic leaders and authoritarian leaders try to defend themselves against the principles of the Rome Statute and other instruments, we should always take into account that these instruments were crafted for the protection of the people against such crimes against humanity.”

The PCICC also filed a petition before the Supreme Court aiming to appeal the withdrawal decision. Another petition by opposition senators in Parliament argued against the unilateral decision of the President to withdraw from an international treaty, stating that as it is "equivalent to a repeal of a law," which would require Parliamentary approval. Both petitions are still under consideration by the Supreme Court. This strategy of legally challenging a withdrawal echoes that employed by South African civil society faced with a similar decision in 2016. At that time, Coalition members in South Africa pushed for a High Court ruling on the unilateral decision by then-President Jacob Zuma’s decision to withdraw from the Rome Statute of the ICC.  Following intense advocacy in South Africa and abroad, in 2017, the South Africa High Court declared the withdrawal from the ICC as "unconstitutional," thereby reversing the decision of the President.

What withdrawal means for the examination

A withdrawal from the Rome Statute comes into effect a year after its deposit with the United Nations Secretary-General. According to the ICC’s treaty, the withdrawal will not impact any on-going consideration of alleged crimes committed before the withdrawal entered into force. However, should any Rome Statute crimes be committed after 17 March 2019 – when the withdrawal came into effect – the Court will not have jurisdiction. Although a national of The Philippines, ICC Judge Dr. Raul Cano Pangalangan will also not be affected by the withdrawal, and will continue to serve his term until its expiration in 2021.

The long road to ratification

In 2000, then-President Joseph Estrada signed the Rome Statute but the move to ratification took many years. In 2005, under the then-President Gloria Macapagal Arroyo, human rights advocates petitioned the Supreme Court to move forward with the ratification of the treaty. After an-11 year process that outlasted three different administrations, The Philippines ratified the Rome Statute in 2011, becoming the 117th member of the ICC.  Civil society and many governmental actors were instrumental in the ratification process, having advocated for ratification for over a decade, and playing a pivotal role in garnering public attention and keeping the ICC on the political agenda.

Indeed, "the withdrawal of the Philippines from the Rome Statute is a retreat from the affirmation of the rule of law and justice in international affairs," said Convenor of the Coalition for the ICC, William Pace. Coming on the heels of Malaysia's accession to the Rome Statute earlier this month however, the worldwide support and commitment of a variety of stakeholders to combating impunity for international crimes in the interest of global peace and security remains strong.

The President of the Assembly of States Parties, Mr. O-Gon Kwon (Republic of Korea), has reiterated his regret regarding the withdrawal of the Philippines. “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. 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," said President Kwon.