Withdrawing from the ICC? Experts 'fact-check' Duterte

Expert fact-checking met President Rodrigo Duterte's announcement that the Philippines is withdrawing from the International Criminal Court (ICC), the tribunal that is examining allegations against him over the war on drugs.

"Unfortunately or fortunately, depending on one's politics, the President is wrong about this. In any case, a withdrawal does not have any legal effect on an ongoing proceeding," Tony La Vina, former dean of the Ateneo School of Government, wrote in a public Facebook post.

For his part, former solicitor general Florin Hilbay a state's withdrawal from the ICC only takes effect a year after it notifies the tribunal of its intent, citing as a basis a provision of the Rome Statute itself.

Article 127 of the Rome Statute of the ICC states that a party to the tribunal may withdraw from the statute one year after it notifies the Secretary General of the United Nations of its withdrawal.

The statute also provides that a withdrawing party is not relieved from edict-based obligations—including financial dues—it made while it was a member.

Article 127 is also clear in saying that a withdrawal "shall not affect any cooperation with the Court" on matters connected to criminal investigations and proceedings that the state was duty-bound to cooperate in before the date of effectivity of the withdrawal.

"...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," the provision states.

This provision runs contrary to chief presidential legal counsel Salvador Panelo's assertion that the ICC can no longer examine alleged state-sanctioned killings in the country because of the Philippines' supposed withdrawal.

Duterte in his statement gave notice to Article 127, but said the one-year withdrawal effectivity clause is "not applicable" in the case of the Philippines because "there appears to be fraud in entering such agreement."

He said the Philippines was "made to believe that the principle of complementarity shall be observed, that the principle of due process and the presumption of innocence as mandated by our Constitution and the Rome Statute shall prevail, and that the legal requirement of publication to make the Rome Statute enforceable shall be maintained."

Duterte and several of his senior officials are facing a complaint filed by a Filipino lawyer that accuses them of committing crimes against humanity in connection with the administration's brutal crackdown on illegal drugs.

The allegations of Jude Sabio, lawyer of Duterte's confessed hitman Edgar Matobato, are the subject of a preliminary examination by the ICC's Office of the Prosecutor.

This preliminary examination aims to determine whether or not the ICC has basis to proceed with an investigation.

Duterte has repeatedly said the ICC has no jurisdiction over him.

Duterte also argued that the Rome Statute is not enforceable in the Philippines.

"Under our law, particularly the new Civil Code, a law shall become effective only upon the publication in the Official Gazette or in a newspaper of general circulation. Devoid of the legal required publication, the Rome Statute is ineffective and unenforceable," the President said in the statement.

"The effectivity of the Rome Statute which is 60 days after the submission by a signatory state of its ratification to the Secretary General as provided thereto cannot prevail our law. An international law cannot supplant, prevail or diminish a domestic law," he added. — with a report by Anna Felicia Bajo/BM, GMA News