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PHL took long, hard road to signing Rome Statute of ICC

On Wednesday, the Philippines announced that it will be withdrawing from the International Criminal Court, a month after the international war crimes tribunal set a preliminary examination of the complaint filed against President Rodrigo Duterte.

The complaint was filed on April 24, 2017 by Jude Sabio, the lawyer for self-confessed former hitman Edgar Matobato. It alleged that Duterte "repeatedly, unchangingly and continuously" committed crimes against humanity in his war on drugs and that under him, killing drug suspects and other criminals has become "best practice."

Citing "baseless, unprecedented and outrageous attacks" against him and his administration, Duterte said that the Philippines its withdrawing its ratification of the Rome Statute, the international treaty that created the ICC.

Adopted on July 17, 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, the Rome Statute also defines the ICC's jurisdiction as covering certain international crimes for which individuals—not states—may be tried and held accountable: genocide, crimes against humanity, war crimes, and crimes of aggression.

The Philippines would not ratify the treat until 2011 — a long, hard road hailed by champions of local human rights as a shining moment for rule of law in the country.

Signed, not ratified

Then-President Joseph Estrada actually signed the Rome Statute on December 28, 2000 — one of his last acts in office before he was ousted a month later.

His successor, President Gloria Macapagal Arroyo, refused to take action on the statute or forward the treaty to the Senate for concurrence — supposedly due to her alliance with the George W. Bush administration, which had declared it would not ratify the statute. It had been signed by Bush's predecessor, Bill Clinton, in 2000.

One of the biggest champions of the Rome Statute was Senator Miriam Defensor Santiago, who filed a resolution in October 2008 urging Arroyo to transmit the statute to the Senate for concurrence.

In 2010, Santiago again asked newly-elected President Benigno Aquino III to transmit the statute to the Senate.

"The policy of Malacañang with regard to the Rome Statute has been in line with the position of the US," she said at the time. "The US under the Bush administration did not ratify the Rome Statute. With new presidents leading both countries, we can expect expedience in the statute’s ratification."

On February 28, 2011, Aquino signed the Statute and sent it to the Senate for concurrence.

On August 23, 2011, the Senate finally voted 17–1 for the Philippines to become the 117th signatory to the ICC.

The lone dissenter was Senate President Juan Ponce Enrile, who said he was concerned that the court could impede the military in its duties. The US' own opposition to the Statute, according to Human Rights Watch, is its concern that the court might conduct "politically motivation investigations and prosecutions" against its soldiers and political figures.

'At long last'

Among human rights champions who hailed the entry of the Philippines into the ICC was lawyer Harry Roque, who now serves as Duterte's spokesperson.

In a blog post titled "ICC: At long last" on August 25, 2011, Roque celebrated the Philippines' signing of the Rome Statute, citing "eleven years of lobbying" before the statute finally reached the Senate.

"To be candid, I never thought that membership in the ICC was possible, at least before I become geriatric. This is because of the many atrocities under both the Marcos and Arroyo regimes that remain unpunished. Well, it’s always a pleasure to be proven wrong," Roque wrote.

"Here, credit should go to both the Senate and to President Benigno Aquino III. It was the latter who reversed the Arroyo policy of rejecting the ICC as a means of ending impunity. On behalf of all victims of impunity, I express my gratitude to both the Senate and Pnoy for finally granting the Filipino people an effective remedy to impunity."

In a column he wrote for the Inquirer on August 25, 2011, two days after the Senate ratified the statute, lawyer Raul Pangalangan wrote that by joining the ICC, the Philippines "consolidates its position as the leading human rights constituency especially in the Asean region."

Pangalangan — who himself would be named a judge at the ICC in 2015 — pointed to another connection the Philippines may have with the ICC, noting that the tribunal can trace its history to the war crimes trial of General Yamashita, who was "captured in Ifugao, detained in Baguio, tried in Manila and executed in Los Baños."

Pangalangan also stressed the importance of the fact that the ICC tries individuals, not states.

"The beauty of this is that it depoliticizes the punishment of war crimes and crimes against humanity," he wrote, and quoted the judgment of the tribunal at Nuremberg: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."

Principle of complementarity

Six years after celebrating the country's entry, Roque as Duterte's spokesperson raised the possibility of the Philippines' withdrawing its membership from the ICC, which had confirmed that it had received Sabio's complaint against Duterte.

At the general debate of the 16th Assembly of State Parties to the Rome Statute of the ICC at the United Nations Headquarters in New York on December 5, 2017, Roque said that the country might leave the ICC is the principle of complementarity is violated.

The ICC's principle of complementarity states that the tribunal is intended to "complement, not to replace, national criminal systems; it prosecutes cases only when States...are unwilling or unable to do so genuinely."

Roque also said that the ICC should respect national proceedings on terrorism and illegal drugs, and also warned of attempts to use the tribunal as a means to forward political interests.

"We urge the Court to resist attempts by some sectors to treat the Court as a venue to pursue political agenda to destabilize governments and undermine legitimate national authorities," he said.

Human Rights Watch later slammed Roque's speech as "grossly deceptive," opposing the former human rights lawyer's assertion that the Duterte administration is willing to investigate drug-related deaths, as this is contrary to the President's public statements.

Last week, however, Roque repeated the ICC's rule that it can only investigate criminal cases if domestic courts are unable or unwilling to do so, and claimed that this circumstance does not apply to the Philippines.

"Hindi po mangyayari ‘yan sa Pilipinas dahil alam natin na iyong inability ay mayroon lang ‘yan kung hindi gumagana at all ang mga hukuman. Eh bukas naman po ang mga hukuman ng Pilipinas, so wala pong inability at wala rin pong unwillingness. Kasi wala po tayong immunity for life sa mga presidente," he said.

He also said the alleged deaths attributed to the administration’s campaign against illegal drugs were because of lawful police operations, thus these could not be regarded as attacks against civilians. —JST, GMA News