Duterte can't evade ICC probe on crime against drugs, says Philippine Supreme Court

Mr Rodrigo Duterte has been under investigation by the ICC prosecutor over charges that he committed crimes against humanity.
Mr Rodrigo Duterte has been under investigation by the ICC prosecutor over charges that he committed crimes against humanity.PHOTO: REUTERS

MANILA (PHILIPPINE DAILY INQUIRER/ASIA NEWS NETWORK) - The Philippines' Supreme Court has ruled that President Rodrigo Duterte cannot invoke the country's withdrawal from the Rome Statute to skirt investigation of his alleged crime related to his war on drugs.

Voting unanimously, the 15-member tribunal also held that Mr Duterte could not arbitrarily terminate international agreements without the concurrence of the Senate.

Mr Duterte has been under investigation by the prosecutor of the International Criminal Court (ICC) on charges that he committed crimes against humanity in the killings of thousands in his brutal war on drugs.

In a stinging rebuke of the position of Mr Duterte and the presidential palace, the High Court ruled that as a state party, the Philippines was bound to recognise the jurisdiction of the ICC and cooperate with its processes even after its withdrawal from the treaty that created the international court.

"Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member," the court said in a 101-page decision authored by Associate Justice Marvic Leonen.

"Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated here," it said in its March 16 resolution, exactly three years after the government filed its notice of withdrawal from the treaty.

A copy of the decision was released to the media only on Wednesday (July 21).

The court pointed out that the country's withdrawal became effective on March 17, 2019. This means that all acts committed by Mr Duterte and other public officials up to that date were still within the ambit of the ICC's jurisdiction.

The court said this was clearly spelt out in Article 127(2) of the Rome Statute, which the Philippines joined in November 2011.

"Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the (ICC) obliges the state party to cooperate," it said.

The presidential palace has said repeatedly that the President will not cooperate with the ICC probe since the Philippines had withdrawn from the Rome Statute.

The Rome Statute established the ICC as the first permanent, treaty-based international criminal court. Its powers are limited to four crimes: genocide, war crimes, crimes against humanity, and crimes of aggression.

Mr Duterte last Saturday reiterated his own argument that the treaty had no legal effect because it was not published in the Official Gazette.

Presidential spokesman Harry Roque had also argued that the country's judicial system was working and therefore the President could not be prosecuted and tried in the ICC.

Mr Duterte ordered the country's withdrawal from the agreement a month after then ICC prosecutor Fatou Bensouda announced that she would start a preliminary examination of the complaints against him.

Before stepping down from her post last month, Ms Bensouda had requested that the ICC's pretrial chamber begin an official investigation of the allegations against Mr Duterte.

Former ICC judge Raul Pangalangan, the first Filipino to serve on the international tribunal, had also stated that the withdrawal was not an excuse for Mr Duterte to disregard the ICC's authority.

"Article 127 of the statute says that the court retains jurisdiction even after the withdrawal," Mr Pangalangan said in an online forum last month. "It retains jurisdiction over all crimes committed in its territory while it was still a member of the Rome Statute."

The treaty states that a country's withdrawal "shall not affect any cooperation with the (ICC) in connection with criminal investigations and proceedings in relation to which the withdrawing state had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective".

The High Court's ruling was issued in connection with petitions filed by opposition senators led by Senator Francis Pangilinan and two other groups questioning the legality of the President's decision to withdraw from the treaty.

The court dismissed the petitions for being moot. It said it had no authority to invalidate the Philippines' withdrawal from the treaty since it was already accepted and acknowledged by the United Nations, and that the government had met the requisites in annulling the agreement.

But the High Court recognised the Senate's authority in rescinding treaties it had previously approved, declaring that the president's prerogative to unilaterally set aside an international agreement was "not absolute".

The court said: "The president had no sole authority and the treaty negotiations were premised not only upon his or her own diplomatic powers, but on the specific investiture made by Congress.

"In sum, at no point and under no circumstances does the president enjoy unbridled authority to withdraw from treaties or international agreements."

Senator Pangilinan and the other petitioners had argued that Mr Duterte should have first sought the Senate's concurrence before the Philippine government moved to withdraw from the treaty.