By DJ Yap, March 18 2019; Philippine Daily Inquirer

Image Credit to Philippine Star

The Philippines’ withdrawal from the International Criminal Court (ICC) cannot prevent the tribunal from ordering the arrest and trying President Rodrigo Duterte for the thousands of killings in his brutal war on drugs, according to lawyer Jude Josue Sabio.

By the same token, all hope is not lost for the families of the victims of state crimes, as the next administration can reverse the country’s pullout from the Rome Statute, Sabio said, referring to the founding document of The Hague-based tribunal that tries state leaders for war crimes and genocide.

“Even after effectivity, the withdrawal has no effect on any pending cases,” said Sabio, who brought charges against the President in the ICC for crimes against humanity.


The withdrawal itself “can be reversed once the leadership changes,” Sabio told the Inquirer in a phone interview on Sunday.

The President withdrew the Philippines from the Rome Statute last year after ICC Prosecutor Fatou Bensouda opened a “preliminary examination” of the information that Sabio had brought to determine whether there were grounds to launch a preliminary investigation.

The withdrawal took effect on Sunday, making the Philippines the second nation to quit the world’s only permanent war crimes tribunal.

The first was Burundi, which withdrew from the court in October 2017 but the pullout did not stop the tribunal from investigating Burundi state agents responsible for crimes against humanity committed against the country’s citizens during the nation’s membership in the ICC.

Under ICC rules, any matter under consideration before a nation leaves the court is still under its jurisdiction.

The President has made it clear his government will not cooperate with the ICC in any way.

The “court can never acquire jurisdiction over my person. Not in a million years,” he said in a speech on Wednesday.

Illegal killings

The preliminary examination zeroes in on allegations the government has been involved in illegal killings as part of the President’s war on drugs.

Police say they have killed 5,176 users or pushers who resisted arrest, but rights groups say the actual number of dead is at least triple that number.

Critics have alleged the crackdown amounts to a war on the poor that feeds the undercurrent of impunity and lawlessness in the country.

The human rights group Karapatan said on Sunday that it had documented rights violations committed even before the country’s withdrawal from the ICC took effect.

Karapatan secretary general Roneo Clamor said abuses could worsen after the withdrawal and that rights defenders had begun to fear for their lives.

In a statement released on Saturday night, the Commission on Human Rights (CHR) said the Philippines’ pullout from the ICC was a loss for the Filipino people and a win for impunity.

“It is the Filipino people who [are] bound to lose when they no longer have the recourse in times when [the] local justice system fail[s to protect] them. It is then impunity that wins as a consequence of withdrawal,” CHR spokesperson Jacqueline de Guia said.

Arrest order

Sabio is still waiting for the office of the ICC prosecutor to formally investigate the President and his lieutenants, assuming it finds cause to do so after an examination of documentary evidence. 

Earlier, he suggested in interviews that the ICC appeared inclined to investigate the Philippine leader after an official contacted him to inquire about his witnesses.

If the investigation began, he said, it would mean “we’re a step closer to the confirmation of charges, we’re a step closer to a warrant” of arrest against the President.

The tribunal has the power to issue either a warrant of arrest or a summons to appear to respondents in cases under investigation even before the official filing of charges, he said.

As the Philippines’ withdrawal from the ICC took effect on Sunday, Sabio remained optimistic that the ICC prosecutor would upgrade the status of his complaint from initial examination to a formal investigation.

The opposition in the Senate asked the Supreme Court to the President’s order to withraw, but the tribunal failed to resolve the petition before Sunday.

Administration ally Sen. Richard Gordon, chair of the Senate committee on justice and human rights, on Sunday also said the withdrawal would not save the President from prosecution in the ICC.

“You cannot be discharged, by reason of withdrawal, from your obligations arising from the statute while [the country] was a party to the statute,” Gordon said in a radio interview.

“That means if you committed crimes, you may still be prosecuted,” he said. “For me, I think if you really committed crimes, then you’re still under the jurisdiction of [the ICC].”

Gordon said the President’s claim that he was merely joking when he threatened certain individuals regarding his war on drugs would not protect him from indictment for violating domestic laws after his six-year term ended.

“I told the President several times, ‘Do not fall on you sword because anything you say, even if you were just joking, may be used against you later on when you’re no longer in power,’” Gordon said. 

“Murder is murder in our country. Remember, whoever you may be, once you have relinquished your position [in the government], you’re just an ordinary citizen,” he said.

Gordon, however, said he agreed with the President’s decision to withdraw the Philippines from the ICC.

“Why will I join [the ICC] when I have nothing to gain from it?” Gordon said, pointing out that even the United States and other big countries did not ratify the Rome Statute.

Face the charges

Detained Sen. Leila de Lima said the President’s decision to pull out of the ICC was proof of his complicity in the drug war killings.

The President, she said, should stop “hiding [behind] his men” by answering the allegations brought against him in the ICC.

The Philippines’ exit follows a string of setbacks for the ICC, including the January acquittal of former Ivory Coast leader Laurent Gbagbo and the June 2018 not guilty verdict for former DR Congo Vice President Jean-Pierre Bemba.

In a wave of unprecedented defections, other African nations—Zambia, South Africa, Kenya and Gambia—have all made moves to quit or expressed interest in withdrawing as they accused the court of being biased against Africans.

But earlier in March, the court got a boost when Malaysia officially joined, making it one of just a handful of Asian members. —With reports from Marlon Ramos, Patriciia Denies M. Chiu and AFP