Law experts warn of long-term perils of PHL withdrawal from ICC

A law expert on Wednesday warned of possible long-term consequences of the Philippines' announced withdrawal from the International Criminal Court (ICC), saying the perils extend beyond whether or not any sitting president will be charged of crimes before it.

Non-membership with the ICC will pose a disadvantage if Filipinos living or working abroad are subjected to war situations, said lawyer Antonio La Viña, former dean of the Ateneo School of Government.

"[If] war crimes are committed against our people, wala tayong recourse sa ICC kasi hindi tayo member," he told GMA News Online in a phone interview on Wednesday night.

Earlier in the day, President Rodrigo Duterte declared that the Philippines is withdrawing its ratification of the Rome Statute, the treaty that established the ICC, over “baseless, unprecedented and outrageous attacks” against him and his administration.

The ICC's Office of the Prosecutor announced in February that it will conduct a preliminary examination of allegations of crimes against humanity against Duterte and several of his senior officials over the conduct of the violent war on drugs.

But La Viña highlighted the importance of the country's membership to the ICC, allegations against a president notwithstanding.

"Never mind President Duterte, but it's a very big blow to the rights of our people. Kaya tayo nag-member — the reason why Harry Roque fought for us to be a member of the ICC — because it's very good for our country, it's very good for our people," he said.

"Regardless of President Duterte, or any other president that should be charged with the ICC, that is an agreement that is very good for us," he added.

The Senate ratified the Rome Statute in 2011, a move that was hailed by then human rights lawyer Harry Roque, who has since defended Duterte's policies in his capacity as presidential spokesperson.

La Viña said the Philippines can still go to the United Nations Security Council in the event of such crimes, but said it would enjoy less rights in that avenue. The ICC, he said, was created for ease of remedy in the event of abuses.

The permanent international court can prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.

Duterte has insisted the ICC has no jurisdiction over him.

La Viña noted that the complaint against Duterte "will continue even if we withdraw. Tapos na 'yung boksing doon sa case na 'yun eh."

According to Article 127 of the Rome Statute, any withdrawal from the ICC "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.

La Viña also took exception to Duterte's argument that the Rome Statute is not enforceable in the Philippines because it was not published in the Official Gazette or in a newspaper of general circulation.

"He's wrong, of course, because we’re talking about an international convention. It takes effect when you ratify it and you submit instrument of ratification to the United Nations. Tapos na. The moment you do that, you’re already bound by what you committed to," he said.

Also according to Article 127, withdrawing from the ICC will take effect one year upon written notice to the Secretary General of the United Nations.

Duterte also disputed this, saying this is "not applicable" to 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."

La Viña called this a "funny argument," explaining that the ICC is, in fact, complementary in nature.

"In the first place, wala pa namang desisyon ang ICC whether to charge him or not, so that's premature to say that. In the second place, it's not fraudulent. It's very specific in the provision of the ICC," he said.

On the other hand, International Law expert Jay Batongbacal said Duterte's pronouncement is "deeply flawed."

"PRRD cannot unilaterally decide jurisdiction of the ICC; that can only be done by an international trihunal in an appropriate proceeding," he said.

He explained that the country has the option to withdraw but it cannot do this unilaterally by modifying terms, conditions, date of effectiveness.

"Grounds cited would make the attempt to withdraw in itself a breach of international law," he said.

He added that the government's complaint that the conduct of a preliminary investigation violates due process and presumption of innocence is baseless.

"Because precisely investigations are the means by which due process and presumption of innocence are observed; preliminary investigation provide means for due hearing and assessment with opportunity to present countervailing evidence," Batongbacal explained. — JST/BAP, GMA News