Wenceslao: Evading ICC probe

Bong O. Wenceslao

PRESIDENT Rodrigo Duterte announced yesterday the “immediate” withdrawal of the Philippines from the “Rome Statute,” which created the International Criminal Court (ICC). The president is currently being investigated by the ICC after a case was lodged against him in the said court in relation to his war against illegal drugs that killed a few thousands of suspected drug dealers and users.

To recall, the Philippines was among the more than 120 countries that ratified the Rome Statute of the International Criminal Court (or simply, “Rome Statute”) on July 17, 1998 in Rome. The signatories represented all regions in the world, from the Asia-Pacific to Europe to the Americas. It came into force four years later, or on July 1, 2002. It has already heard a number of cases since then.

Social media was naturally frenzied over the announcement. But what I was initially interested in was the process of withdrawal. The reaction of legal experts was therefore what caused my attention.

Can the president do the withdrawal unilaterally? Here’s what lawyer Florin Hilbay, former solicitor general (under the Noynoy Aquino administration) tweeted: “The ICC was ratified by the Senate. Withdrawal, as a constitutional matter, requires a similar concurrence.”

Article 7 Section 21 of the 1987 constitution states: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all members of the Senate.” Meanwhile, Senate Resolution 289 filed by 14 senators in 2017 noted that, “A treaty or international agreement ratified by the President and concurred in by the Senate becomes part of the law of the land and may not be undone without the shared power that put it into effect.”

So there. It’s not that simple as the president unilaterally deciding on it.

The Rome Statute itself laid down the process that countries should follow should they decide to withdraw. Here’s what the Statute says:

“A State Party may, by written notification addressed to the Secretary General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.”

“A State shall not be discharged by reason of its withdrawal from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

Again, it’s not as simple as the president unilaterally deciding on it. Yet he insists that the Philippines can ignore the said provision of the Rome Statute. Will he also bypass the Senate in what can be considered the haste to prevent the ICC investigation from moving forward?