Additional petition filed

with SC vs withdrawal
from Int’l Criminal Court
The petition is filed by members of the Philippine Coalition for the International Criminal
Court (PCICC), a group which Presidential Spokesperson Harry Roque used to co-chair

Lian Buan
@lianbuan
Published 11:35 AM, June 13, 2018
Updated 11:40 AM, June 13, 2018
FILED. Axle Simeon, Romel Bagares and Rebecca Desiree Lozada from the Philippine Coalition for the
International Criminal Court (PCICC) file a petition asking the Supreme Court to void President Rodrigo
Duterte’s withdrawal from the ICC. Photo by Lian Buan/Rappler

MANILA, Philippines – The Philippine Coalition for the International Criminal Court
(PCICC) filed a petition with the Supreme Court (SC) on Wednesday, June 13, asking
the court to void the Philippine government’s withdrawal from the International Criminal
Court (ICC).

The PCICC is hoping that their petition be consolidated with an earlier petition filed by
minority senators, and that they will be included in the oral arguments on July 24.

The PCICC filed their petition for mandamus and certiorari against Foreign Secretary
Alan Peter Cayetano, Executive Secretary Salvador Medialdea, and Permanent
Representative to the United Nations Teodoro Locsin Jr.

President Rodrigo Duterte withdrew the Philippines' membership in the ICC in March as
a reaction to the preliminary examinations being conducted against him by the ICC
Prosecutor in relation to his bloody war on drugs.

Like the minority senators, the PCICC said that the executive branch cannot unilaterally
withdraw from the ICC without getting the Senate to sign off on it first.

In justifying their stake in the issue, the PCICC said they were “deprived of their right to
take part in the public deliberations on the same hearing that would have taken place
had the Upper House been engaged for the purpose.”

Presidential Spokesperson Harry Roque used to be the co-chairperson of the PCICC.

Representing the PCICC in its petition are lawyers Romel Bagares, Roque’s chief of
staff when he was a partylist representative; Ray Paolo Santiago, the PCICC’s
chairperson; and Gilbert Andres from the Center for International Law, a firm co-
founded by Roque.

Here are the PCICC’s arguments:

1. The Senate must sign off on the withdrawal

The Philippines signed the Rome Statute in 2000 under former president Joseph
Estrada. But the treaty didn’t go into full force until 11 years later, in 2011, when the
Senate passed Resolution No. 546 which formally admitted the country into the rules of
the statute.
For the PCICC, Duterte’s withdrawal cannot scrap Resolution No. 546, which they said,
remains binding.

“No act of the Executive may invalidate this legislative act. It may only be recalled,
cancelled or voided by the Senate itself (unless this Honorable Court, on a petition to
void it, declares it unconstitutional and illegal),” the petition said.

The petition highlighted Section 21, Article VII of the Constitution, which states: “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 silence of the provision on the withdrawal is now being used by government allies
to say the Senate’s concurrence is not needed when terminating a treaty.

But the PCICC said the provision “prescribes a shared duty towards that end between
the Executive and the Legislative branches of government.”

2. It is a well-settled principle in international law

Under a principle called the peremptory norm or jus cogens – which means a
compelling law that cannot be violated – a country may not pass a law or an order that
would violate a compelling law. In this case, the PCICC said the Rome Statute is jus
cogens in character.

“The Philippine is bound by customary international law to abide with the Rome Statute,
which embodies and codifies such norms and principles from which there can be no
derogation, which in fact are jus cogens in character,” the PCICC said.

The PCICC said that this principle is further strengthened by the fact that the Philippine
Constitution committed to adopt “generally accepted principles of international law.”

Section 2, Article II of the Constitution states that: “The Philippines renounces war as
an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.”

3. Republic Act 9851 adheres to international law

Though the Philippines signed the Rome Statute in 2000, there was a delay in its
ratification mainly because in 2005, the Supreme Court ruled in Pimentel vs Executive
Secretary that the executive does not have a “ministerial duty” to enter into a treaty.
“The President is vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations,” the SC said then.

But in 2009, former president Gloria Macapagal Arroyo signed into law Republic Act
9851 or the Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity, most commonly known as the
International Humanitarian Law or the IHL.

The PCICC claims that this law finally paved the way for the Philippines to ratify the
statute, which it did in 2011 under former president Benigno Aquino III.

Section 17 of the IHL says: “In the interest of justice, the relevant Philippine authorities
may dispense with the investigation or prosecution of a crime punishable under this Act
if another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime. Instead, the authorities may surrender or
extradite suspected or accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant to the applicable extradition laws
and treaties.” (READ: ICC's track record and what it means for Duterte and the PH)

Thus the PCICC said that the ICC Prosecutor’s preliminary examinations vs Duterte’s
drug war adheres to the IHL on the principle of “reverse complementarity.” It means that
there is a domestic law that recognizes the prosecutor’s act.

Duterte claimed that when the ICC prosecutor opened the preliminary examination, she
violated the complementarity rule which basically states that the ICC shall only take
jurisdiction of a case if the local justice system is unable to.

4. Non-publication of the Rome Statute does not merit a withdrawal

In his statement, Duterte said the Statute was void because it was never published on
the Official Gazette or any newspaper of wide circulation, which is typically required of
domestic laws before they become effective.

The PCICC went back to Section 21, Article VII and said publication was never
required by the Constitution for a treaty to become effective.

The PCICC also said the Rome Statute was basically published when the IHL was
passed due to similarities in provisions.

Consequences

The PCICC said Duterte’s “unilateral act” has “grave legal consequences.”
“It will mean citizens, including Petitioners, will not have a ready recourse to any
effective mechanism that used to be there when the Philippines was still a party to the
Rome Statute, for redress against cases of impunity should their own government
become unable or unwilling to prosecute such cases of impunity,” the petition said.

It added: “This may also have repercussions on foreign investors’ confidence in the
reliability, predictability and integrity of our democratic institutions, for which reason it
must be subject to Senate concurrence, so that every other possible negative
ramification of such a withdrawal of international obligations may be precluded or
addressed.” – Rappler.com