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ICC retains jurisdiction over PH crimes before March 2019

The International Criminal Court maintains jurisdiction over crimes against humanity that occurred in the Philippines from Nov. 1, 2011 to March 16, 2019, the day the country withdrew from the body.

The ICC is investigating alleged killings arising from then President Rodrigo Duterte’s drug war, estimated to be between 12,000 and 30,000 by human rights groups, and those that occurred in Davao City from 2011 to 2016 when he was the mayor.

A day after the House committees on justice and human rights tackled resolutions urging the government to cooperate with the ICC pre-trial investigation, Duterte’s former presidential spokesperson Harry Roque said in a Nov. 23 live stream that being a non-member of the ICC means the body no longer has jurisdiction over the Philippines. He said starting at the 7:15 mark:

(A)ng punto, wala na po talagang hurisdiksyon [ang ICC] dahil [hindi na tayo miyembro] at hindi po nila tayo pwedeng pilitin na magstay, beyond the one year from the time na nagdeposit tayo ng instrument of ratification (The point is, the ICC does not have jurisdiction over the country anymore because we have already withdrawn our membership and they cannot force us to stay, beyond the one year from the time we deposited an instrument of ratification).

Roque also said the international court lost jurisdiction over cases against Duterte because the ICC prosecutor applied for authority to probe the alleged crimes in 2021, and was eventually given the green light the following year. He also pointed out the failure of the Office of the Solicitor General to invoke before the ICC’s Appeals Chamber the court’s lack of jurisdiction after the country withdrew as a member.

The Philippines joined the Netherlands-based tribunal on Nov. 1, 2011, a move that Roque, who specializes in international law, applauded in his 2011 blog post.

The Duterte administration on March 16, 2018 deposited an instrument of withdrawal from the ICC amid the court’s preliminary examination into the drug-related killings. The withdrawal took effect on March 16, 2019.

Despite this withdrawal, the ICC still holds jurisdiction over incidents that happened within the Philippines from Nov. 1, 2011 to March 16, 2019, according to Article 127 of the Rome Statute, the treaty that established the ICC. It reads in part:

A State shall not be 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 Supreme Court echoed this passage in its 2021 decision on the Pangilinan vs. Cayetano case, noting the country “remained covered and bound by the Rome Statute until March 17, 2019.”

In its July 18 decision, the Appeals Chamber of the ICC asserted that the Philippines “implicitly accepted the Court’s jurisdiction” when the Duterte administration filed with the court in 2018 a request to defer the preliminary investigation.

The same decision junked the appeal filed by the Marcos administration on Feb. 3, allowing ICC prosecutor Karim Khan and her team to resume their investigation on the country’s drug war killings and those in Davao City.

A March 27 decision by the appeals chamber also denied the Philippines’ request to suspend the investigation.

Three resolutions urging the government to support the ICC’s drug war probe have been filed in the House, the latest of which is HR No. 1482 filed by Albay Rep. Edcel Lagman on Nov. 21.

Sen. Risa Hontiveros filed a counterpart resolution on Nov. 28.

President Ferdinand Marcos Jr. said in a media interview on Nov. 24 that the Philippines’ return to the ICC is “under study,” contradicting his earlier statement in a press conference last year that the country has “no intention of rejoining the ICC.” (JL)


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