CenterLaw: No requirement of publication to make Rome Statute binding

An international law advocacy group on Thursday disputed President Rodrigo Duterte's claim that the Rome Statute, the treaty that established the International Criminal Court, is not binding in the Philippines because it did not comply with a publication rule.

"There is no further requirement of publication in any newspaper of general circulation to make the treaty binding upon the Philippines, as the President contends," said the Center for International Law (CenterLaw) in a statement.

When Duterte announced that the Philippines will withdraw from the ICC, he said the Rome Statute was not enforceable in the country to begin with since it was not published in the Official Gazette or in a newspaper of general circulation.

The Senate ratified the Rome Statute in 2011. According to CenterLaw, citing Article VII Section 21 of the Constitution, as well as expert Antonio La Viña, the treaty was as good as domestic law when the Senate concurred with it.

"This is a point well established in our constitutional jurisprudence as the 'doctrine of transformation,'" it said.

Malacañang said the Rome Statute has penal provisions, thus the need for publication in the Official Gazette or a newspaper of general circulation. 

"Okay po iyan kung hindi penal in character. But this is penal in character; it makes a whole world of a difference," presidential spokesperson Harry Roque said in a news conference.

"In fact, ito lang ho yata ang tratado na criminal in nature...the obligation there is to criminalize torture and genocide under domestic law," he added.

Duterte's declaration of withdrawal came after the ICC Office of the Prosecutor announced it will examine allegations against him and several senior officials over their conduct of the brutal war on drugs.

CenterLaw cited Republic Act No. 9851, or the International Humanitarian Law Act, which it said "allows our courts to try cases cognizable by the ICC under the principle of complementarity."

READ: Fast facts about the International Criminal Court

Complementarity was also raised by the president in his statement announcing the withdrawal—he said the country was made to enter into the agreement under an element of "fraud."

This argument is "erroneous," according to CenterLaw, which said "the country in fact had a leading participation in the establishment of the ICC, as the Philippines actively participated in the drafting of the Rome Statute," it added.

CenterLaw was co-founded by human rights lawyer Harry Roque, who now works for Duterte as spokesperson.

The group further said a withdrawal from the ICC "will not save anyone responsible for crimes against humanity from the ICC's jurisdiction," joining the Rome Statute-based refrain that leaving the permanent court will not let Duterte evade scrutiny and possible prosecution.

Moreover, the group said the preliminary examination does not strip the president of his right to due process to being presumed innocent until proven otherwise.

"Even if the process progresses to the investigation proper, he will be accorded his right to contest the charges, or even disclaim the Court's jurisdiction to try him," it said.

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

The decision to withdraw from the ICC gives the "false impression" that the government can sustain a "culture of impunity," CenterLaw said.

"President Duterte's decision to withdraw from the International Criminal Court gives the false impression that government agents, especially our police force, can continue to perpetuate a culture of impunity and that they can evade international accountability for crimes against humanity," the statement said. — with Virgil Lopez/BM/KBK, GMA News