The Departed: Implications of the Philippines’ Withdrawal from the

ICC

On 19 March 2018, President Duterte withdrew the Philippines from the Rome Statute (“Statute”). This
decision is disappointing, yet unsurprising. The President has repeatedly threatened to withdraw,
and declared that the International Criminal Court (“Court”) is being used as a “political tool”. Earlier in
2018, Chief Prosecutor Bensouda opened a preliminary examination (“PE”) into whether the Philippine
Government is responsible for alleged crimes against humanity committed in the “War on Drugs” from at
least 1 July 2016 (“Situation in the Philippines”). To date, Human Rights Watch estimates that the bloody
campaign has claimed over 12,000 lives.
In this post, I firstly examine whether the Philippines has withdrawn from the Statute. Secondly, I analyse
the Government’s obligations to cooperate with the Court after its withdrawal, especially in relation to the
PE. Finally, I consider why the PE into the Situation in the Philippines is strategically significant for the
Court’s future and mandate to end impunity for international crimes.

Legal Requirements for Withdrawal

According to international law, the Philippines has withdrawn from the Statute. Under Article 127(1) of
the Statute, a State party may withdraw via written notification to the Secretary-General of the United
Nations (“UN”). At a minimum, the withdrawal shall “take effect one year after the date of receipt of the
notification” (emphasis added). Burundi is the only nation to have effectively withdrawn from the Statute.
Since President Duterte has given written notification to withdraw, it shall become effective on 19 March
2019.
Yet it is unclear whether President Duterte has the domestic power to withdraw unilaterally from the
Statute. Before the Philippines ratified the Statute in 2011, at least two-thirds of Senators had to give their
consent under Section 21, Article VII of the 1987 Constitution for the treaty to become “valid and
effective”. This Constitution is silent on the treaty withdrawal process, and Senators have failed to pass a
resolution on whether it also requires their consent. Therefore, the Supreme Court of the Philippines
might be asked to determine if President Duterte has the power to withdraw. When South Africa tried to
withdraw unilaterally from the Statute, this decision was revoked after the High Court ruled that it was
“unconstitutional and invalid”. For this post, I assume that the Philippines has withdrawn from the Statute.
State Obligations to the Court
Legal Framework
Article 127(2) of the Statute determines the Philippines’ obligations to the Court after its withdrawal. It
seeks to prevent States from using withdrawal to avoid jurisdiction, once they are under scrutiny from the
Court (Klamberg, p. 757), by giving effect to Article 70(1)(b) of the Vienna Convention on the Law of
Treaties, which stipulates that the termination of a treaty “[d]oes not affect any right, obligation or
legal situation of the parties created through the execution of the treaty prior to its termination”.
Article 127(2) states that:
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 (emphasis
added).
This Article provides that a State party may have two ongoing obligations after its
withdrawal, which I analyse below in relation to the PE into the Situation in the Philippines
respectively. Firstly, a State party must cooperate with “criminal investigations and proceedings” which
were commenced prior to the date of the effective withdrawal. PEs are probably excluded as they
precede criminal investigations. Although it does not state when an investigation commences, the Pre-
Trial Chamber (“PTC”) concludes that an investigation clearly has commenced with the decision to
authorise it (para. 26). Thus, it is expected that the Office of the Prosecutor (“OTP”) will move quickly
so that the Court may authorise a formal investigation into the Situation in the Philippines before 19
March 2019.
The Court took this approach for the Situation in Burundi. Only two days before Burundi’s withdrawal
became effective, the PTC authorised a formal investigation under Article 15 of the Statute. While
Burundi gave notice of withdrawal shortly after the OTP requested authorisation of this investigation, the
Philippines gave its notification just after the OTP opened a PE. Consequently, the OTP is
under considerable pressure to conduct this PE, then request and possibly receive the Court’s
authorisation for an investigation within one year.
Secondly, a State shall not prejudice the consideration of “any matter” under consideration “by the Court”
that was commenced before its withdrawal becomes effective. The meaning of this section is ambiguous.
Does a “matter” include consideration of any situation or case? Does “the Court” refer to Chambers or
does it encompass the OTP? Schabas (p. 1536) postulates that an expansive interpretation might find
that “any matter” is before “the Court” when the OTP is “considering” applying to the PTC for authorisation
of an investigation under Article 15 of the Statute.
However, I agree with Kevin Jon Heller that the better view is that a situation is only “under consideration”
by the Court once the OTP has asked the PTC to authorise an investigation. I suggest that PEs may not
constitute a “matter” before “the Court”. PEs are preliminary, informal processes with “no particular
applicable legal framework and no direct legal consequences” (see Dov Jacobs). They are solely initiated
by the OTP, which is one organ of the Court and may not embody “the Court”. Instead, “the Court” may
refer to Chambers. For example, Article 95 of the Statute refers to Chambers when it uses the same
phrase “under consideration by the Court”.
Furthermore, it does not befit the OTP’s role to unilaterally determine States’ obligations after their
withdrawal. Amnesty International and Whiting argue for a broad interpretation of Article 127(2) of the
Statute, so that States cannot prejudice consideration of PEs and thereby avoid the Court’s jurisdiction.
The OTP has sweeping discretion to initiate any PE that is not “manifestly beyond” the Court’s
jurisdiction, under Article 15 of the Statute. Yet this power is subject to checks and balances, including the
need for the OTP to seek Court authorisation for an investigation in Article 15(3) of the Statute. Ultimately,
the Philippines may not be obligated to cooperate with the PE into the Situation in the Philippines after its
withdrawal, but it would be obligated under an investigation.
Practical Implications
All is not lost for victims in the Philippines. Regardless of whether or not the Court authorises an
investigation before the date of effective withdrawal, the Philippines remains a State party until then.
Therefore, the Court has jurisdiction over crimes within its jurisdiction that may have been committed in
the Philippines or by nationals of the Philippines up to and including the date of effective withdrawal
(see Burundi at para. 24). These crimes are also not subject to any statute of limitations (Article 29 of
the Statute). Accordingly, the Court may authorise an investigation into the Situation in the Philippines or
other alleged crimes within these limits at any time.
However, even if the Court approves an investigation before the date of effective withdrawal, the
Philippines is unlikely to cooperate under Article 127(2) of the Statute. In fact, President Duterte
has given express orders to the contrary. This does not diminish the importance of States respecting their
obligations, but it follows that the OTP faces greater hurdles in carrying out its duty. Under a more
amenable Government, the Philippines may freely choose to cooperate with the Court, even when it is not
legally obliged to do so. For example, the Philippine Government has compensated victims under the
Marcos dictatorship of the 1970s and 1980s.
Importance of the Preliminary Examination
The PE into the Situation in the Philippines is important for two reasons. Firstly, the Court may bolster its
reputation as a truly international institution, because the PE is the first time that the Chief Prosecutor has
set her sights on Asia. It is the most “underrepresented region” at the Court, with just 35% of States
ratifying the Statute (Kim, p. 254), and abstentions from some of the world’s most populous nations,
including China, India and Indonesia. The region with the next lowest rate of representation is Africa
which, despite having a comparable number of States, has almost double the number of signatories as
Asia (Kim, p. 254). With the global balance of power shifting to Asia, the OTP has made a strategic
decision to initiate the PE in the Philippines and have a place in the region’s future.
By examining the Philippines, the OTP gains not only the opportunity to reshape Asia’s notoriously
uneasy relationship with the Court (generally, see Chesterman, Sperfeldt and Palmer and Schuldt), but
also to address criticism that the Court is inappropriately targeting African nations. Recently, the OTP has
focused further afield with PEs into the Situations in Ukraine, Iraq/UK and Venezuela, amongst others.
Secondly, the PE in the Philippines may help to deter bloody anti-drug campaigns around the world. The
OTP has placed the War on Drugs in the global spotlight, which may put pressure on the Philippines to
reconsider its policies. However, South-East Asia is notorious for the world’s harshest drug penalties and
their high popular support. Over 18 months into the War on Drugs, President Duterte still enjoys 80
percent approval ratings. Perhaps “inspired” by Duterte, Indonesia’s President Widodo has ramped
up anti-drug rhetoric and called for police to shoot drug offenders. Whenever there are executions of drug
traffickers, President Widodo’s approval ratings surge. These hard-line regional attitudes towards drug
offences not only make it more difficult to encourage Filipino victims to come forward, but also to
persuade nations to abandon their violent practices towards drug offenders.
Conclusion
In 1989, Trinidad and Tobago proposed the creation of an international criminal court to address drug
trafficking. It is with a twinge of irony that the resulting Court will now be (rightly) used to seek justice for
drug dealers and addicts who have been allegedly murdered in the War on Drugs.
The Philippines’ decision to withdraw from the Statute is disappointing and disturbing. Every day that
President Duterte’s brutal campaign against drugs continues, the body count swells and impunity reigns.
Thankfully, even if an investigation is not approved before the date of effective withdrawal and the
Philippine Government refuses to cooperate, the Court will always have jurisdiction over these alleged
crimes.