Prospects for an ICC probe

Jude Josue Sabio .

PRESIDENT Duterte’s withdrawal from the ICC came after its ruling in the Burundi situation, in which the ICC upheld its continued exercise of jurisdiction, notwithstanding the supervening withdrawal of Burundi. The ICC opened an investigation two days prior to the lapse of one year from Burundi’s notification of withdrawal.   This Burundi ruling is a jurisprudential authority that, under the Rome Statute, a withdrawal does not affect the continued jurisdiction of the ICC over a matter already pending with it prior to such withdrawal.

There can be no doubt at all that the ICC ruling in the Burundi situation is squarely applicable to the Philippines, because first and foremost, like in the case of Burundi, the Philippine situation is a motu proprio legal matter under the Rome Statute, which means that the case is not being referred by Burundi or the Philippines or by the UN Security Council, but rather by other interested parties who seek the intervention of the ICC.

In early February 2018, ICC Prosecutor Fatuo Bensouda announced that she will conduct a preliminary examination into the situation of the Philippines. The announcement came only about nine months since this author actually filed a communication with the ICC in late April 2017. A month or so thereafter, or on 17 March 2018, the person being charged in the ICC, President Duterte, just like the Burundi President, formally withdrew from the ICC by submitting a notification of withdrawal with the UN Secretary General. Under the Rome Statute, such withdrawal will take effect only in the middle of this month, or one year after the submission of such notification. Mr. Duterte followed the lead of Burundi which is the first country to withdraw from the ICC. 

In line with the  Burundi precedent, since the Philippine situation has already been pending preliminary examination with the ICC, prior to the submission of the Philippine notification of withdrawal and prior to its taking into effect, the jurisdiction of the ICC is not affected and will continue pursuant to the express provision of the Rome Statute as actually applied in the Burundi situation. 

In the  Burundi situation, the ICC opened a preliminary examination sometime in April 2016 and six months thereafter or on 27 October 2017 Burundi filed with the UN a notice of withdrawal from the ICC. One year thereafter or on 25 October 2017, the ICC opened an investigation. Although the Rome Statute provides that an investigation can still be carried out even after the one-year period, the opening of the investigation prior to the expiration of said one-year period is legally significant.  It ensures that Burundi can still be compelled by the ICC to cooperate with the investigation, because such obligation existed before its notice of withdrawal became effective.  

Under this precedent, the same legal move should also be done by the ICC in relation to the Philippines, if the ICC is similarly minded to exercise its power to subsequently compel the cooperation of the Duterte government. However, in any event, any investigation to be made after the one-year period can still be done, but it is legally doubtful if the ICC can still compel such cooperation from the Duterte government.   At any rate, even if the Duterte government will  not cooperate, it will not adversely affext the investigation, because the interested parties will always present evidence before the ICC.

The recent situation in Myanmar is also legally interesting in relation to the Philippines. Not long ago, a Pre-Trial Chamber of the ICC ruled that the ICC has jurisdiction over the situation of mass deportations of Rohingya Muslims from Myanmar to the nearby Bangladesh.  What is legally unusual is that Myanmar is not a state party to the Rome Statute, and yet the ICC is exercising jurisdiction over the situation.  

The reason for the ICC’s ruling is that the forcible mass deportation is a “cross-border” offense that started from Myanmar and ended in Bangladesh.  The ICC likened the situation to a bullet being fired from one state and ending up hitting a person in another state. The legal link to the ICC’s jurisdiction lies in the fact that Bangladesh, where the mass deportation ended up, is a state party to the Rome Statute. 

This may sound fine in theory, but it is rudimentary that the ICC has jurisdiction only over a situation that happens in a state party or over nationals of such party. Technically, the ICC does not have jurisdiction over Myanmar or its nationals who are top military leaders based in Myanmar, not in Bangladesh.  While it may be true that Bangladesh is a state party, the crime against humanity is not being committed by its military and political leaders. 

Even if Bangladesh is a state party which serves as a jurisdictional link, the ICC cannot escape the reality that it will have to deal legally instead with the top military leaders of Myanmar, which is legally problematic due to Myanmar’s not being an ICC state party. How the ICC will resolve this obvious legal paradox is interesting, as Prosecutor Bensouda begins to launch a probe targeting the top Myanmar perpetrators.  How Myanmar will legally react to this situation that runs counter to its state sovereignty is even more interesting.  

This new ruling of the ICC will be most relevant to the situation of the Philippines now currently under preliminary examination by Prosecutor Bensouda, in light of the ongoing proceedings before the Supreme Court on the withdrawal. Already, there is an argument invoked by the Duterte administration that the Rome Statute failed to take effect in the Philippines due to a failure of the requisite publication. Then Chief Justice Teresita de Castro has asserted  the lack of a supposed enabling law for the Rome Statute to take effect. 

Candidly, it is foolhardy to be confident that the Supreme Court will be sympathetic to the cause of maintaining the Rome Statute, judging from its present composition and its behaviour in recent political cases. To a cynical extent, the danger is very real that the Supreme Court will undermine the Rome Statute by kowtowing to the pseudo-legal arguments being invoked by President Duterte and his legal minions.

At any rate, the  Burundi ruling applies squarely to the Philippines in a situation where the Philippines merely withdraws from the ICC. The situation becomes legally different when the Philippines, through the Supreme Court, deems itself to have not been a state party to the Rome Statute from the beginning due to certain technicalities.  In such situation, the Philippines may be likened to Myanmar which is not a state party from the beginning.

But under the Rome Statute, which operates on a different international plane, the ICC is not bound by domestic processes. A country becomes a party to it by the legal mechanism expressly provided in the Rome Statute for such purpose. As far as the ICC is concerned, a state becomes a state party by such legal mechanism, without regard whatsoever to any legal processes in the domestic front. 

Indeed, the recent Myanmar ruling of the ICC provides a glimpse into the possible future action of the ICC in relation to the ongoing preliminary examination of the Philippine situation, even if the Supreme Court sadly goes to the extent of  declaring the Rome Statute as void ab initio in the country.   If the ICC has assumed jurisdiction over the Myanmar situation, even if it is not a state party to the Rome Statute, it is with more reason and justification that it can continue to exercise its jurisdiction into the situation of the Philippines, because as far as the ICC is concerned the Philippines has been a member of the ICC which is akin to a “cross-border” link. 

(Jude Josue L. Sabio is the lawyer from Misamis Oriental who filed a case against President Duterte before the International Criminal Court. He filed his certificate of candidacy for senator last year but the Commission on Elections subsequently rejected it. Sabio has appealed the Comelec decision. Since he is no longer a candidate, our editorial policy to ask columnists to take a break from column writing no longer applies to him.)