ICC Statement on The

Philippines’ notice of
withdrawal: State participation
in Rome Statute system
essential to international rule of
law
ICC-CPI-20180320-PR1371

Yesterday evening, 19 March 2018, the International Criminal Court ("ICC" or "Court") was
officially notified by the United Nations that the Republic of the Philippines had on 17 March
2018 deposited a written notification of withdrawal from the Rome Statute, the Court's
founding treaty, with the United Nations Secretary-General as the depositary of the Statute.
The Court regrets this development and encourages the Philippines to remain part of the ICC
family.
Withdrawing from the Rome Statute is a sovereign decision, which is subject to the provisions
of article 127 of that Statute. A withdrawal becomes effective one year after the deposit of
notice of withdrawal to the United Nations Secretary-General. A withdrawal has no impact
on on-going proceedings or any matter which was already under consideration by the Court
prior to the date on which the withdrawal became effective; nor on the status of any judge
already serving at the Court.
As indicated recently in the ICC Pre-trial Chamber decision authorising the opening of an
investigation in relation to the situation in Burundi, the ICC retains its jurisdiction over
crimes committed during the time in which the State was party to the Statute and may
exercise this jurisdiction over these crimes even after the withdrawal becomes effective.
The Court wishes to reaffirm that the participation of States in the Rome Statute and their
continued support for the ICC in the discharge of its independent and impartial mandate is
essential to global efforts to ensure accountability and strengthen the international rule of
law.
The Rome Statute system, with the ICC at its centre, has judicially addressed and galvanised
national and international efforts to address the most serious crimes under international law
such as the use of child soldiers, sexual violence in conflict, torture, wilful killing and the
destruction of cultural heritage.
The Court remains fully committed to its independent mandate to help end impunity in a
complementary manner with States, and in so doing, contribute to the prevention of future
atrocities. States' participation in the Rome Statute ought not only be maintained and
reinforced, but enlarged.
Background information on the Preliminary Examination of the situation in the Philippines
The Republic of the Philippines ratified the Rome Statute on 30 August 2011 and the Statute
entered into force from 1 November 2011.
The preliminary examination of the situation in the Philippines was announced by the Office
of the Prosecutor of the ICC on 8 February 2018. It will analyse crimes allegedly committed in
this State Party since at least 1 July 2016, in the context of the "war on drugs" campaign
launched by the Government of the Philippines. Specifically, it has been alleged that since 1
July 2016, thousands of persons have been killed for reasons related to their alleged
involvement in illegal drug use or dealing. While some of such killings have reportedly
occurred in the context of clashes between or within gangs, it is alleged that many of the
reported incidents involved extra-judicial killings in the course of police anti-drug
operations.
A preliminary examination is not an investigation. It is an initial step to determine whether
there is a reasonable basis to proceed with an investigation. Specifically, under article 53(1) of
the Rome Statute, the Prosecutor, must consider issues of jurisdiction, admissibility and the
interests of justice in making this determination.
Under the Rome Statute, national jurisdictions have the primary responsibility to investigate
and prosecute those responsible for international crimes.
In conformity with the complementarity principle, which is a cornerstone of the Rome Statute
legal system, and within the framework of each preliminary examination, the Office of the
Prosecutor will engage with the national authorities concerned with a view to discussing and
assessing any relevant investigation and prosecution at the national level.
In the independent and impartial exercise of its mandate, the Office of the Prosecutor will also
give consideration to all submissions and views conveyed to it during the course of each
preliminary examination, strictly guided by the requirements of the Rome Statute.
Should, at the conclusion of the preliminary examination process, the Prosecutor decide to
proceed with an investigation, authorisation from a Pre-Trial Chamber of the Court would be
required. The Court's judges would then make an independent assessment as to whether the
statutory criteria for the opening of an investigation are met.
MANILA, Philippines — In March 2018, the Philippines under President Rodrigo Duterte became the
fourth country to have announced withdrawal of its ratification of the Rome Statute, the treaty that
established the International Criminal Court.
The chief executive cited “outrageous” attacks on him and his administration and the
supposedly illegal attempt by ICC prosecutor Fatou Bensouda to place him under the
Hague-based court’s jurisdiction as reasons for the country’s withdrawal.
This came a month after the ICC initiated a preliminary examination into allegations of
extrajudicial killings in the Philippines.
Petitioners composed of Philippine Coalition for the ICC and opposition senators argued
that the executive department committed grave abuse of discretion in withdrawing the
country’s membership in the ICC without the concurrence of the Senate.
The oral arguments on the consolidated petitions challenging the country’s exit from the
international tribunal began on August 28. It will resume on September 4.
Lawyers Romel Bagares, Ray Paolo Santiago and Gilbert Andres represented the
PCICC, the group that campaigned for the treaty’s ratification for more than a decade.
The minority senators who were supposed to appear at the oral arguments—Francis
Pangilinan, Franklin Drilon and Bam Aquino—were no-show.
Lawyer Anne Marie Corominas explained that the senators wanted more time to decide
how they would proceed with the case after the Supreme Court rejected their plea to be
represented by detained Sen. Leila de Lima at the oral arguments.
Here is a rundown of some of the points discussed in the oral arguments on the
administration’s withdrawal of its membership in ICC:

Legal standing
Associate Justice Marvic Leonen questioned PCICC’s locus standi or legal standing in
challenging the legality of the executive department’s move to pull out from the ICC.
“The reason why in constitutional cases, it must be the party that is actually injured so
that the party can choose what kind of claims and defenses that they can raise,” Leonen
said.
He asked Santiago if he has experienced actual injury as a consequence of the country’s
withdrawal from the ICC.
“Your petition enumerates advocates for human rights whom I deeply respect…
Principally, it must be shown that there is a personal, substantial, direct injury. What is
your injury?” Leonen asked.
The justice also asked: Is this case premature? Has there been a violation of genocide?
Crimes against humanity that you have experienced?”
Santiago admitted that “there is no direct injury on my part.”
He, however, maintained that PCICC’s case was not premature despite the absence of
actual damage on his part.

Right to effective remedy

Associate Justice Francis Jardeleza asked Santiago to specify which right was violated
when the government withdrew the Philippines’ membership from the ICC.
Santiago replied that Filipinos’ right to effective remedies will be scrapped.
Andres, in his opening statement, earlier pointed out that the country’s withdrawal “will
abolish the Filipino people’s parallel means of enforcing right to effective remedies
against international crimes committed by state forces and/or armed groups.”
Jardeleza, however, said that such right is not explicitly mentioned in the current charter.
The best textual support to this is the provision that states that “no person shall be
deprived of life, liberty and property without due process of law.”
The justice told the petitioners to cover in their memorandum why the court should
agree that there is a right to effective remedy as an extension of a person’s right to life or
liberty.
Leonen also told the counsels that the courts in the country are functioning.

Senate approval
The petitioners maintained that the Duterte administration’s unilateral withdrawal was
invalid due to the absence of concurrence from the Senate.
“The executive cannot unilaterally withdraw from a treaty without violating the
constitution. Such withdrawal, therefore, is a violation of separation of powers,” Bagares
said.
Article VII, Section 21 of the 1987 Constitution states that no treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all
the members of the Senate.
The charter, however, is silent of the upper chamber’s part in the withdrawal.
“We’re all very clear now that the language of the Constitution particularly Article VII,
Section 21 relates only to ratification. It does not mention at all the termination or
withdrawal of the state party to the treaty it accedes to,” Associate Justice Lucas
Bersamin said.
The counsels argued that since the Rome Statute is a treaty that has the same status as a
law enacted by Congress, withdrawal from it needs the approval of at least two-thirds of
the Senate.
“If the Senate concurs by two-thirds of votes of all its members so it’s valid and effective
under our constitutional mechanism. Hence, the reverse is also true. If the president
withdraws from a treaty such as the Rome Statute then it also needs the concurrence of
the Senate,” Andres said.
In 2011, the upper house approved the ratification of the Rome Statute.
During his interpellation, Leonen pointed out that Resolution 289—which expresses the
sense that the upper chamber should have a say when a treaty concurred in by the Senate
is terminated—has not been approved.
Sen. Manny Pacquiao, an ally of the president, knocked down the measure.
“Might not it be better for this court to wait until the Senate does its own reading of the
constitution? The court may not want to become the judicial dictator of this country over
extending its powers to realms, which might be political in nature rather than legal.”

Is our ICC withdrawal valid?

Will the International Criminal Court (ICC) still have jurisdiction to investigate and
prosecute crimes against humanity committed in the Philippines after March 17, 2019?
This is essentially what’s at stake in the case pending in the Supreme Court
that questions the validity of our country’s withdrawal from the ICC. Oral
arguments were heard on Tuesday.

On Nov. 1, 2011, the Philippines became a state party to the ICC. On Feb. 8,
2018, the ICC prosecutor announced that she would conduct a preliminary
examination of the Philippine situation following reports of extrajudicial
killings in the government’s “war on drugs” campaign.

On March 17, 2018, or just 37 days after the ICC prosecutor’s announcement,
the Philippine government submitted its notice of withdrawal from the ICC. If
the withdrawal is held valid by the high court, the Philippines will cease to be
a party to the ICC on March 17, 2019, or one year from notice.

It is interesting to note that the Duterte administration invokes as its reason

for withdrawal the alleged noncompliance with the requirement of
Philippine law, because the ICC statute was not published in the Official
Gazette. But Malacañang contradicts itself when it argues that the
withdrawal is valid notwithstanding its noncompliance with the Philippine
law requiring Senate concurrence on the move.

The paradigm embedded in our Constitution is that the requirements to do

an important act are the same requirements needed to undo the same act,
even if it’s not so expressly stated. A law is passed by a majority vote of
Congress, and it is repealed also by a vote of Congress passing a contradictory
new law. A new constitutional provision is approved through a people’s
plebiscite, and it is repealed by an amendment also approved by plebiscite.

When the Constitution requires a different procedure to undo an act, the

Constitution expressly spells out the dissimilar procedure to undo it. The
President is installed in office through election, but may be removed through
impeachment. The Supreme Court justices are appointed by the President
from a Judicial and Bar Council shortlist, but they may be removed by
impeachment.

The Constitution requires Senate concurrence for the President to enter into
a treaty (like our ICC membership). The Constitution does not spell out a
different procedure for our disengagement from a treaty. Hence, the
embedded paradigm kicks in. Senate concurrence is required to give validity
to a presidential action withdrawing our membership in the ICC.

During the oral arguments, one of the justices mentioned that the nonfiling of
complaints by the victims’ families may be the reason there are virtually no
cases pending in court despite so many killings. The comment was made
because, if our country’s justice system is working to address the killings,
there is really no need for the ICC to exercise its complementary jurisdiction.

However, even if our courts are functioning, the police and prosecutors (both
supervised by the President) may not be performing their duties of
investigation and prosecution, thus preventing cases from reaching the
courts. Even if the victims’ families are not filing complaints because of fear,
the police and prosecutors must perform their duties.

The reason criminal cases are titled “People of the Philippines vs (name of
the accused)” is because crimes are offenses against the nation’s populace, so
the police and prosecutors must investigate and file charges using scene of
the crime reports, forensic evidence and witnesses’ statements other than
those of the frightened families of the victims.

Even when death happens during a police operation, the police manual
requires policemen to mandatorily submit their reports to the prosecutors
for investigation, because there is no presumption of regularity in police
killings.

Any pervasive absence of police and prosecutor efforts to perform their

duties may show inability or unwillingness on the part of our government to
address the killings. That gives way to the ICC to exercise complementary
jurisdiction, and rightfully beyond March 17, 2019.

FILE PHOTO: The entrance of the International Criminal Court (ICC) is seen in The
Hague, Netherlands. Jerry Lampen, Reuters
MANILA- The Philippines' withdrawal from the International Criminal Court (ICC) has
no legal basis and was just a "whimsical and arbitrary" decision of President Rodrigo
Duterte.
This was the argument of petitioners seeking to declare the Philippines' exit from the
ICC as invalid as the Supreme Court held oral arguments on the matter on Tuesday.
"The executive has no...legal basis for the withdrawal other than the President's
whimsical and arbitrary decision," lawyer Romel Bagares, counsel for petitioners, told
the top court.
Bagares represents the Philippine Coalition for the International Criminal Court
(PCICC), which is seeking to invalidate the Philippines' withdrawal from the ICC along
with minority senators.
Senators Francis "Kiko" Pangilinan, Franklin Drilon, Bam Aquino, Risa Hontiveros,
Leila de Lima, and Antonio Trillanes IV filed a pleading in March seeking to declare the
Philippines' withdrawal from the ICC invalid after the President moved to pull out the
Philippines from the ICC in the same month.
The lawmakers argued that the withdrawal should be invalidated for lack of concurrence
of the Senate by a two-thirds vote.
•Minority senators ask SC to declare PH withdrawal from ICC invalid
Bagares explained that under the charter, treaties or international agreements shall only
be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate.
"The Executive cannot unilaterally withdraw from a treaty without violating the
Constitution," Bagares argued. "Such withdrawal, therefore, is a violation of separation
of powers."
Malacañang previously said it was confident that the top court will respect the
government's decision to withdraw the Philippines from the ICC since the President is
the “chief architect” of the country’s foreign policy.
Presidential Spokesperson Harry Roque had said that it cannot be alleged that there was
grave abuse of discretion amounting to lack or excess of jurisdiction.
"You cannot allege that on matters of foreign affairs. The courts will always defer to the
executive on matters of foreign affairs," he said.
•Palace belittles senators’ plea vs ICC withdrawal
The Philippines signed the Rome Statute on Dec. 28, 2000 and ratified and endorsed it
in August 2011, during the time of Duterte’s predecessor, the then President Benigno
"Noynoy" Aquino III.
Created through the 1998 Rome Statute, the ICC has jurisdiction over 124 of its
members, including the Philippines.

DUTERTE VS ICC. President Rodrigo Duterte claims the Philippines can withdraw from the
International Criminal Court immediately. Malacañang file photo
MANILA, Philippines (UPDATED) – President Rodrigo Duterte announced on
Wednesday, March 14, that the Philippines will withdraw from the International
Criminal Court (ICC) "effective immediately."
In a rare written statement released to media on Wednesday, Duterte said the Philippines
will withdraw its ratification of the Rome Statute, the treaty which created the ICC.
"I therefore declare and forthwith give notice, as President of the Republic of the
Philippines, that the Philippines is withdrawing its ratification of the Rome Statute
effective immediately," he said. (FULL TEXT: Duterte's statement on Int'l Criminal Court
withdrawal)
According to the Rome Statute however, a state party's withdrawal from the ICC can only
take effect a year after the written notification of the withdrawal is received by the United
Nations secretary-general.
Duterte disputed this, saying the withdrawal should take effect immediately, as he
claimed that the agreement was fraudulent to begin with.
The one-year timeline, he said, is "not applicable insofar as the effectivity of the
withdrawal of the Philippines as a signatory to the Rome Statute is concerned, for the
reason that there appears to be fraud in entering such agreement." (READ: Things to know
about Duterte's pet peeve ICC)
Explaining his view, Duterte 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." ([OPINION] ICC: Complementarity, not exhaustion of
remedies)
Duterte made the declaration over a month after the ICC started its "preliminary
examination" of the complaint filed against the Philippine leader in connection with the
high number of killings under his violent war on drugs. (READ: What challenges will
complaint vs Duterte face before ICC?)
Duterte's intent to withdraw from the ICC also comes after Malacañang said he initially
welcomed the court's examination of the drug war.
"The President welcomes the preliminary examination because he is sick and tired of
being accused of the commission of crimes against humanity," Presidential
Spokesperson Harry Roque said in early February. (READ: Roque once thanked Aquino for
PH membership in Int'l Criminal Court)
No publication
In his statement, Duterte again insisted that the ICC does not have jurisdiction over him. He
outlined his arguments for making the claim.
He alleged that the Rome Statute was never published in the Official Gazette – the official
journal of the Republic of the Philippines – thus it was never effective in the country.
"Under our law, particularly the New Civil Code, a law shall become effective only upon
its 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 wrote.
He was likely referring to Article 2 of the Civil Code which states: "Laws shall take
effect after 15 days following the completion of their publication either in the Official
Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise
provided."
In August 2011, a press release about the concurrence of the Senate on the Rome Statute
was published on the Official Gazette, which only carries Philippines laws and executive
issuances.
Duterte said that because of the supposed non-publication of the Rome Statute on the
Official Gazette or a Philippine newspaper, "an international law cannot supplant,
prevail, or diminish a domestic law."
The Chief Executive invoked presidential immunity as yet another reason why the ICC
has no jurisdiction over him.
A sitting president's immunity from suit is not stated explicitly in the 1987 Constitution
but Duterte contends that charter framers "unanimously agree that such doctrine is
deemed written in the 1987 Constitution."
"Thus, considering that such immunity is part and parcel of the organic law of the
Philippines, it cannot be removed through the enactment of a statute or be bargained
away through the negotiation of a treaty," said Duterte.
The Philippine leader also argued that the acts he is being accused of committing are not
acts under the jurisdiction of the ICC.
The police implementing his drug war, he said, were part of legitimate government
operations that "lacked the intent to kill." If there were deaths of suspects, it was because
police were merely defending themselves, he said. (READ: CHR: Withdrawal from Int'l
Criminal Court can be seen as 'encouraging impunity')
Politicized ICC, UN?
Duterte also accused the ICC and the United Nations (UN) of allowing themselves to be
politicized.
He cited criticism made by UN officials like UN High Commissioner for Human Rights
Zeid Ra'ad Al Hussein and Special Rapporteur Agnes Callamard as evidence of
"international bias."
Zeid had said that Duterte should undergo a psychiatric evaluation because of his "foul"
attacks on UN rapporteurs like Callamard, who the Philippine leader had threatened
to "slap" if she investigates his drug war.
The Philippine leader also called out the ICC for supposedly "prematurely" announcing
its preliminary examination which "created the impression" that Duterte would be
charged in the international court. (WATCH: The International Criminal Court process)
"It is apparent that the ICC is being utilized as a political tool against the Philippines,"
said Duterte.
It was Malacañang, however, which first issued a statement confirming the ICC's
preliminary examination on February 8. ICC Chief Prosecutor Fatou Bensouda had also
emphasized in her announcement – which came after the Palace confirmation – that a
"preliminary examination is not an investigation." (READ: Cayetano says ICC withdrawal 'a
principled stand')
Senate's say
In February last year, 14 senators filed Senate Resolution No. 289, declaring that
the Senate has a say in the termination of any treaty or international agreement, but it has yet to be
adopted. It was filed after Duterte himself declared intentions to scrap the Philippines-
US Visiting Forces Agreement and to withdraw from the ICC.
"The power to bind the Philippines by a treaty and international agreement is vested
jointly by the Constitution in the President and the Senate," the resolution states, also
citing the principle of checks and balances in government. (READ: IBP: Scrutinize Duterte
decision to withdraw from Int'l Criminal Court first)
Article VII, Section 21 of the 1987 Constitution states "no treaty of international
agreement shall be valid and effective unless concurred in by at least two-thirds of all
the members of the Senate."
"A treaty or international agreement ratified by the President and concurred in by the
Senate becomes part of the law of the land and may not be undone without the shared
power that put it into effect," states the Senate resolution. (READ: Can Senate stop PH's
withdrawal from ICC? Pacquiao blocked the resolution) –
Key facts on PHL’s
withdrawal from the
International Criminal
Court
Published March 25, 2018 1:54pm

By RICHARD JAVAD HEYDARIAN

In recent weeks, the International Criminal Court (ICC) has captured the
imagination of the Filipino people. A seemingly obscure, but highly
relevant, international body has all of a sudden dominated public
discussion, provoking a ferocious debate among folks from across the
political spectrum.

The ICC was catapulted to the headlines, when it was revealed, last
month, that the institution’s chief prosecutor Fatou Bensouda has
opened a preliminary examination against the Philippines. This is the first
time in history that an incumbent Southeast Asian government has faced
the prospect of indictment by the ICC. Weeks later, President Rodrigo
Duterte acted upon his initial threat to unilaterally nullify the country’s
ratification of the Rome Statute, which undergirds our years-long
membership of the ICC. He also called upon other countries to exit the
ICC, yet so far no country has followed through.

In 2011, the Philippine Senate ratified the Rome Statute, effectively

placing the country under the ICC’s jurisdiction. And the details of which
are actually accessible on the official gazette of the Republic of the
Philippines.

So what is at stake here, why such a commotion over the Philippines’

withdrawal? What are the implications of it? Does this make the country
more isolated or reaffirms its sovereignty? Is this good for the country, at
all? The following are some of key issues to keep in mind.

First and foremost, the ICC is a body found under the auspices of the
United Nations (UN), with the express purpose of avoiding the horrific
mass atrocities, which bedeviled sub-Saharan Africa (think of the Rwanda
genocide) and the Balkans (the violent dissolution of former Yugoslavia)
and, more broadly, shocked the world into action.

After intensive global discussions in the UN at the turn of the century,

the ICC was established at The Hague, in Netherlands, which also houses
other major international arbitration bodies such as The Permanent Court
of Arbitration (PCA). The goal of the ICC is to discourage or, in an event
of failure of deterrence, ensure accountability and justice when mass
atrocities occur, particularly genocide, crimes against humanity, and war
crimes.

Second, the location doesn’t have any political implication. The location
of the court, which was approved by members of the UN, is partly
reflection of the fact that the Netherlands has been the bedrock of
international law, with no less than the 17th century Dutch jurist Hugo
Grotius, who is known as one of the fathers of modern international law,
hailing from that country.

Yet, the location of the court by no means suggest that the Dutch
government or the European Union carries any any influence over how
these highly-independent bodies are run. In fact, in 2013, for instance,
the PCA ruled in favor of Mauritius, an African country, against the United
Kingdom, a European country (and still EU member, but likely not for
long) over a territorial dispute over the Chagos Archipelago in the Indian
Ocean.

It’s true that superpowers such as Russia, China, and the United States
haven’t ratified (via their parliaments/congress) the Rome Statute or
didn’t even bother to sign (via executive branch) it to begin with. And
they have been condemned accordingly for avoiding accountability for
their actions, including military interventions abroad.

Yet, more than 100 countries, including much of the developed world and
most prosperous Asian countries such as Japan and South Korea, have
ratified the Rome Statute, thus placing themselves fully under the ICC’s
jurisdiction. In short, the ICC continues to enjoy the support and
confidence of the world’s most prosperous nations.

Third, the ICC has just opened ‘preliminary examination’ against the
Philippines’ authorities involved in the drug war, specifically the
accusation of ‘crimes against humanity’ in light of alleged extrajudicial
killings under Duterte’s drug war.

Crimes against humanity charges are generally described as “a

deliberate act, typically as part of a systematic campaign, that causes
human suffering or death on a large scale.” Article VII of the Rome
Statute defines it as “acts when committed as part of a widespread or
systematic attack directed against any civilian population.”

Preliminary examination, meanwhile, only means that the ICC is currently

examining the veracity of communications (complaints) and reports of
alleged mass atrocities under Duterte’s drug war. It’s far from clear
whether the ICC will launch an actual investigation, as a potential
prelude to indictments of specific leaders, anytime soon. In certain
cases, it takes only few weeks or months (e.g., Sudan, Libya) before the
ICC moves from the stage of examination to actual investigation, while in
other cases it might take years (i.e., Ivory Coast).

Actual indictments against officials may take a long time before they
take effect, with so far mostly African leaders ending up at the receiving
end of ICC’s hammer of justice. The international body is yet to indict a
single major Western or Asian leader on charges of mass atrocities.

Fourth, withdrawal from the ICC won’t stop the ongoing examination. It
takes one year before the Philippines’ withdrawal takes effect, making
the country only the second nation, after Burundi, to first sign, then
ratify, just to later withdraw from the ICC when respective leaders are
subjected to examination and potential investigation. Similar attempts
by certain African countries were shut down by either their Supreme
Court (South Africa) or by a newly elected government (Gambia), which
were concerned by further international isolation.

Moreover, according to Article 127 of the Rome Statute, any withdrawal

by a state will not render it “discharged, by reason of its withdrawal,
from the obligations arising from this Statute while it was a Party to the
Statute, including any financial obligations which may have accrued.”
The Philippines has been under ICC’s investigation since 2011 and, per
rule, until March 2019.

Fifth, the best way forward for the Duterte administration would have
been to challenge, in an event of actual investigation, the jurisdiction of
the ICC by citing the ‘principle of complementarity’, whereby the
international body can’t step in unless there is sufficient evidence to
show that local courts and institutions are either unwilling or incapable of
dispensing justice vis-à-vis mass atrocities. This is far from easy to
establish, so there was a room for compromise and de-escalation.

Specifically, the Duterte administration could have simply assured the

ICC of the viability of domestic judicial institutions by conducting
thorough investigation and, if found guilty, charge perpetrators with
appropriate penalties. Above all, if the government is truly innocent,
then it shouldn’t worry about either domestic or international
investigations. Smearing international bodies based on dubious
arguments, which have been roundly debunked by local and
international experts, will only worsen the situation and risk isolating the
Philippines in the international community. If anything, it may only
embolden the ICC to up the ante. This isn’t about the interest of our
leaders, but our national interest.

Prof. Richard Heydarian is GMA resident analyst and author of, among
others, “How Capitalism Failed the Arab World” (Zed, London).