5 Things You Need to Know about the ICC and the Philippines

The Philippines’ withdrawal from the Rome Statute of the International Criminal Court took effect on Sunday 17 March 2019.

Philippines officials estimate that 5050 people have been killed in police operations during President Duterte’s “war on drugs”. Human rights groups estimate the number could be much higher, especially including killings by vigilante groups as well as by police. How will anyone be held accountable for these deaths, asks Emma Palmer?

The International Criminal Court (ICC), which the Philippines joined in 2011, might have seemed like an obvious choice for accountability. It was established to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’ and has the power potentially to prosecute presidents. In February 2018 the Court’s Prosecutor announced that she would undertake a ‘preliminary examination’ of the “war on drugs”, but by 17 March 2018 the Philippines announced its withdrawal from the Court, to take effect one year later.

What does withdrawing from the Statute mean for the Prosecutor’s preliminary examination? More importantly, what does it mean for the accountability for killings in the Philippines “war on drugs”? And what does this mean for the ICC in Southeast Asia?

Here are 5 things you need to know:

1. The ICC might still investigate crimes in the Philippines

The Court may still exercise jurisdiction over international crimes committed in the Philippines before 17 March 2019.

Article 127(1) of the Rome Statute says that withdrawal ‘shall take effect one year after the date of receipt of the notification’. When Burundi withdrew from the Court, the Pre-Trial Chamber suggested this provision meant that the Court would still have jurisdiction over any crimes committed while Burundi was still a party to the Statute. In other words, the Court could prosecute crimes committed in Burundi until the withdrawal took effect. The Prosecutor also says that the Court will keep jurisdiction over the Philippines crimes post-withdrawal.

That suggests that the ICC will have jurisdiction over crimes committed in the Philippines up to and including 16 March 2019.

On the other hand, the situation with Burundi was different, because the Court authorised an investigation just before the date Burundi’s withdrawal became effective. This meant that Burundi is still under an obligation to cooperate with those investigations. In the case of the Philippines, the Prosecutor has not publicly sought an investigation and the Court has not publicly authorised one. Only a ‘preliminary examination’, the step before that, has been announced. This leaves two possibilities.

First, if the Court has not authorised an investigation before 17 March 2019, it is likely that the Court will conclude that the Philippines is not under any obligation to cooperate with any proceedings. This would make the Prosecutor’s task even more challenging if she decides to proceed.

Second, it is still possible that the Court has already authorised the investigation on a confidential basis. That is what happened in relation to Burundi because the Prosecutor was concerned about the risk to witnesses.

Finally, the Philippines Supreme Court was asked to revoke the President’s withdrawal on the basis that it was not consistent with Philippines Constitutional law but has not yet issued a decision. Now that the withdrawal date has passed, the Supreme Court might determine that the question is no longer relevant. Then again, the legal issue will arise again if the President tries to withdraw from other treaties. Moreover, if the Supreme Court finds that the withdrawal was illegal as a matter of domestic law, this could present further complications.

The Philippines’ relationship with the ICC is not over quite yet.

2. Human rights violations have not stopped

Debates about the ICC should not distract anyone from the continued violation of human rights in the Philippines.

Extra-judicial killings in the war on drugs did slow after the Prosecutor commenced her preliminary examination. But they did not stop. According to a Philippines National Police spokesperson in August 2018, the rate of deaths had fallen from 105 per week to 23 per week in 2018. At that point, there had been at least 4,814 deaths in anti-drug operations. In December 2018, that number was 5050. Clearly, the “war of drugs” has continued to take a heavy toll.

These human rights violations have been accompanied by reports of escalating repression in other areas too, with extra-judicial killings of Mayors, threats and attacks on human rights defenders (especially land rights activists), lawyers and journalists, and pressure upon – and even the imprisonment of – political opponents.

3. The ICC’s role within the Philippines is limited

The significance of the ICC and its impact within the Philippines should also not be overstated. It has been an important tool for bringing attention to the crimes and their international condemnation. Yet, water shortages, volatile prices, natural disasters, land disputes, armed conflict and other issues compete for space in political debates in the Philippines.

The “war on drugs” has been a popular policy domestically, which arguably helped Duterte to portray the ICC’s attention as unwarranted international interference in its affairs and stifle critique from some civil society groups, at least initially. Even in the Supreme Court proceedings, an important argument for remaining a party to the ICC was that it could help to encourage accountability within the Philippines because cases are not admissible before the ICC if they are already being investigated or prosecuted in the Philippines.

That said, while the ICC’s role in the Philippines is limited, many did seek and welcomed the Court’s attention.

4. Activists in the Philippines are working hard, but face challenges

Many activists in the Philippines have been documenting human rights violations and demanding that they be prosecuted, including regarding the “war on drugs”. Yet domestic prosecutions have faced challenges. There have been few prosecutions and even fewer convictions – despite the conviction of three police officers for the murder of a 17-year-old in 2017.

The Philippines Commission on Human Rights is reportedly investigating perhaps 1500 cases, but the Commission lacks the resources, or the power, to prosecute these cases directly. The Department of Justice has also investigated some cases, but it has been difficult to secure cooperation from the police. The challenges in securing evidence, ensuring witnesses are safe and confident, and prosecuting these crimes are multiple. Still, some groups in the Philippines are pushing hard for accountability even in this tough environment.It will be important to keep listening to victims and survivors, including their families, and supporting them.

5. We’re still likely to see more of the Asia-Pacific at the ICC

It had seemed that the withdrawal of the Philippines from the ICC would reduce its already weak representation in the Asia-Pacific, and Southeast Asia in particular. That will not be the case because Malaysia has acceded to the Rome Statute in March 2019. The ICC has also reportedly indicated that the Philippines-nominated judge need not step down just because the Philippines has withdrawn.

Leaving the ICC does reduce the weight of the Philippines’ voice at the Court and removes its potential leadership role as a state party in the region – an opportunity that Malaysia may now take up.

This is significant since nearly half of the countries in the ICC Prosecutor’s list of ongoing preliminary examinations now fall within its (admittedly broad) category of Asia-Pacific states, including in Afghanistan, Palestine, Iraq (regarding violations by soldiers from the UK from 2003 to 2008) and Myanmar/Bangladesh. The ICC has also received communications about other alleged international crimes in the region, including in Cambodia and concerning Australia’s treatment of refugees.

The withdrawal of the Philippines from the Rome Statute will not immediately break all links with the ICC. Any ongoing debates should not distract, however, from the ongoing human rights violations and the challenging work being undertaken by actors within the Philippines, including in domestic courts. If the ICC does continue to review alleged crimes in the Philippines, close cooperation with civil society will be crucial to its work – particularly if the government is no longer under any obligation to cooperate. Finally, the Philippines departure from the ICC is by no means the end of the Court’s engagement with the Asia-Pacific. Rather, it results from the Court’s shift in attention toward the region.

Republish