(Eagle News) – The International Criminal Court (ICC) said it will proceed with the preliminary examination on the case filed against the Philippine president Rodrigo Duterte and his officials, even as it had received notice that the country was withdrawing from the Rome Statute.
In a statement, the ICC said that it was already officially notified by the United Nations on Monday, March 19, of the Philippines’ written notification of withdrawal, but explained that this will only become effective a year after the deposit of the notice.
“A withdrawal becomes effective one year after the deposit of notice of withdrawal to the United Nations Secretary-General,” the ICC statement said.
“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,” it said.
The ICC also again clarified that a “preliminary examination” was “not an investigation.”
The UN notified the ICC on March 19 that 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,” the ICC said in its statement.
-ICC cites Burundi case in decision to proceed with PHL preliminary exam-
But ICC said that the Philippines’ withdrawal from the ICC will not prevent it from continuing its preliminary examination of the complaint against the Philippine officials, since this had already commenced when it first announced this on February 8 this year.
The ICC said this was what they had done in the situation in Burundi, which officially notified the ICC in October 2016 of its withdrawal from the Rome Statute. The withdrawal began to take effect a year later, or on October 27, 2017, as Burundi became the first nation to leave the international criminal court.
The ICC judges in November 2017 found there was “a reasonable basis to proceed with an investigation in relation to crimes against humanity” in Burundi in their decision made on October 25, 2017 but not announced publicly until later that year.
“As indicated recently in the ICC Pre-trial Chamber decision authorizing 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 ICC statement said.
But the ICC said it recognizes Duterte’s decision to withdraw from the Rome statute as a “sovereign decision” but that this is still subject to the provisions of Article 127 of that Statute – meaning it would still take effect a year later or in March 2019.
The ICC said that it wished 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 Republic of the Philippines ratified the Rome Statute on August 30, 2011 and the Statute entered into force for the Philippines starting November 2011.
On February 8 this year, the Office of the Prosecutor of the ICC announced that it would be conducting its preliminary examination on the Philippine situation.
-ICC to analyze killings under war on drugs in the PHL since July 2016-
The ICC said it would “analyze crimes allegedly committed” in the Philippines since July 1, 2016, when President Duterte took office, “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,” the ICC statement said.
“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,” it said.
Lawyer Jude Sabio, legal counsel of self-confessed hired killer Edgar Matobato, filed the 77-page complaint against Duterte and 11 of his officials with the ICC in April 2017 claiming there was “continuing mass murder” in the Philippines under Duterte’s watch in the government’s war against drugs and criminality. He also included alleged killings made by the controversial Davao Death Squad which he had linked to Duterte, when he was still the Davao City mayor.
The complaint was filed after the Philippine senate in previous hearings in 2016, found that the claims made by Matobato on the alleged Davao Death Squad linking this to Duterte were unsubstantiated, and that Matobato, a witness presented by Senator Leila De Lima then, was said to be lying and not credible.
The Philippine National Police, early this year, had also revised its rules on its revitalized “tokhang” so this would be less prone to abuse. Tokhang means “knock and plead,” an operation meant to convince illegal drug suspects to surrender to police authorities.
President Duterte initially said it would cooperate with the ICC , and that he would even want a one-on-one talk with ICC Prosecutor Fatou Bensouda when the international court first announced its intent to conduct a preliminary examination last February.
“I hope you come, and I hope we can be together in one room. I hope I can have that rare privilege of talking to you. Tayo lang dalawa, the two of us in a room. I welcome you,” he said addressing the ICC prosecutor in February this year.
Duterte said that if after he explains everything to the ICC prosecutor, and she still would insist on hailing him to trial, he would rather be executed in another country which would allow this.
But on Sunday, March 18, the President while attending the graduation rites of the Philippine Military Academy in Baguio City, criticized the Rome Statute that establishes the International Criminal Court, noting that he would convince other countries to “get out” of the same.
According to the President, the ICC was European Union-sponsored, and interfered in “all problems.”
Duterte said he is withdrawing the Philippines from the ICC because of the court’s “baseless, unprecedented and outrageous attacks” against him.
He also recently announced that he was advising police authorities not to give information to the ICC believing that the ICC really had no jurisdiction over him.
-Preliminary examination, not an investigation-
The ICC, on the other hand, clarified that its preliminary examination “is not an investigation” but only 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,” the international court said.
It recognized that “under the Rome Statute, national jurisdictions have the primary responsibility to investigate and prosecute those responsible for international crimes.”
The ICC explained that, through its Office of the Prosecutor, it would still “engage with the national authorities concerned” which is in conformity with the complementarity principle.
This is “with a view to discussing and assessing any relevant investigation and prosecution at the national level,” it said.
But the ICC said that it will also consider all submissions and views given to the Court during the course of their preliminary examination.
“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,” the ICC explained.
It said that if upon the conclusion of its preliminary examination, the ICC prosecutor should decide to proceed with the investigation, an “authorization 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,” the ICC clarified.
-ICC asks PHL to reconsider decision to withdraw-
Nevertheless, the ICC still asked the Philippines to reconsider its decision to withdraw from the Rome Statute.
“The Rome Statute system, with the ICC at its center, has judicially addressed and galvanized 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, willful killing and the destruction of cultural heritage,” it said.
“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,” it explained.
Because of this, the participation of various countries in the Rome Statute “ought not only be maintained and reinforced, but enlarged,” it stressed.
The Philippines and Cambodia are the only Asian countries, among the 124 countries, that had joined the ICC.