ICC INQUIRY | Supreme Court dismissed petitions on ICC withdrawal but rules government has to cooperate with its inquiry

July 21, 2021 , 06:03 PM

By Beatrice Puente

(July 21, 2021) – President Rodrigo Duterte will still have to face the International Criminal Court (ICC) if it pushes through with its investigation into the brutal and bloody campaign against illegal drugs, the Supreme Court said, but threw out petitions challenging the leader’s decision to withdraw from it.

The high court also said the Duterte administration has to cooperate with the ICC in the investigation, rebuking the government’s position that it will not help in the investigation because it is no longer a party to the Rome Statute.

But it dismissed the petition because the ICC had accepted the government’s withdrawal, rending it moot.

The high court, in a 101-page decision written by associate justice Marvic Leonen, agreed with the ICC that it still maintains jurisdiction over the crimes a state had committed until such time that its pullout officially took effect.

Fourteen other justices, including former chief justice Diosdado Peralta, concurred with the decision.

“Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings,” the Supreme Court said in a ruling made known on Wednesday.

“Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate … Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated here.”

Duterte unilaterally withdrew its membership from the ICC in 2018, a year after complaints were filed against his administration and after former top prosecutor Fatou Bensouda said she would open a preliminary examination into the bloody drug-related killings.

The withdrawal only took effect in March 2019.

In June, just before she stepped down from office, Bensouda asked the court’s pre-trial chamber to authorize an inquiry into the drug war. She said the administration might have committed crimes against humanity of murder in these killings.

She agreed with human rights groups, which said more than 30,000 people have died in the drug war over the last five years, including those killed by vigilantes. Police figures said there were only 7,000 deaths.

[READ: DRUG WAR | Drug war victims’ families find ‘vindication’ as ICC prosecutor seeks formal inquiry]

Duterte has repeatedly insisted he would not cooperate in any such inquiry because the country was no longer a party to the ICC. His spokesman, Harry Roque, also criticized the international court for still “meddling” in the country’s affairs when it no longer holds jurisdiction over the country.

But the Supreme Court’s recent decision proves Duterte’s claim was false, setting a clear rule that rights groups can possibly use to push him and his allies to participate in the ICC investigation if it happens.

Meanwhile, the high court also pointed out the country’s withdrawal from the ICC could not diminish the value of local laws in protecting people’s civil rights and liberties.

“This fear of imagined diminution of legal remedies must be assuaged,” Leonen wrote. “The Constitution, which embodies our fundamental rights, was in no way abrogated by the withdrawal. A litany of statutes that protect our rights remain in place and enforceable.”

For instance, the country’s international humanitarian law echoes substantive provisions of the Rome Statute. It even covers a much larger scope, according to the court, for it also prosecutes crimes based on sexual orientation as well as enforced disappearances.

The high court also stressed the country would still be bound by its obligations under the Rome Statute because its principles are effectively enshrined as a part of international law.

“Petitioners’ concern that the country’s withdrawal from the Rome Statute abjectly and reversibly subverts our basic human rights appears to be baseless and purely speculative,” the court decision added.

Six former and sitting senators from the opposition, the Integrated Bar of the Philippines, and the Philippine Coalition for the International Criminal Court raised the issue of transcendental importance in asserting their legal standing to complain about the firebrand leader’s move.

But the court ruled there was no “exceptional condition” warranting the exercise of the high court’s jurisdiction in the case, citing the issue neither involves funds nor assets. Besides, the issue was already rendered moot because the government followed the procedures for withdrawal and the ICC accepted it.

In addition, the court could not step in when the Senate, a co-equal body, failed to pass a resolution to question the president’s move, calling them out for their “inaction.”

While the high court junked the petitions, it maintained that the president’s decision can still be reined in by members of the Senate. It also said the judiciary can exercise its jurisdiction when there is grave abuse of discretion.

“Any attempt to invoke the power of judicial review must conform to the basic requisites of justiciability. Such attempt can only proceed when attended by incidents demonstrating a properly justiciable controversy,” the court said.

(MM)

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