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Is the Philippines Better Off Having Left the ICC?

Headquarters for the International Criminal Court (ICC) in the Hague, Netherlands. Photo: www.ishr.ch
Headquarters for the International Criminal Court (ICC) in the Hague, Netherlands. Photo: www.ishr.ch

ell, it happened. The Philippines is no longer a member state of the International Criminal Court (ICC). We are only the second country to leave the ICC after first becoming one of its member states; Burundi left in October of 2017.

What happens next? According to a March 13, 2019 article by Lian Buan and Jodesz Gavilan of Rappler, here are likely scenarios going forward:

“The withdrawal would have one significant effect on the preliminary examinations – killings that will happen after March 16 can no longer be covered by [ICC] Prosecutor Fatou Bensouda. ‘Withdrawal will have the effect of preventing the Prosecutor from receiving (or seeking) evidence of events that transpired after 16 March 2019. The preliminary examination will be restricted to events covered in the February 2018 decision to open preliminary examination of the Prosecutor,’ said lawyer Diane Desierto, Associate Professor of Human Rights Law and Global Affairs at the University of Notre Dame in the US.”

Buan and Gavilan however, make clear that. “Article 127(2) of the Rome Statute says withdrawal shall not ‘prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.’

This means that the matter that precipitated the Philippines’ withdrawal form the ICC—Bensouda’s intention to investigate President Rodrigo Duterte’s deadly war on drugs—may still proceed unimpeded.

Another significant drawback of our withdrawal as articulated by Supreme Court Associate Justice Antonio Carpio, is the fact that the Philippines can no longer file a case against China with the ICC for crimes of aggression.

Lian Buan noted in an earlier article, dated October 09, 2018, that Carpio had cautioned that “Duterte’s unilateral withdrawal from the International Criminal Court (ICC) will weaken the Philippines’ position against China. ‘We are giving up a very strong legal deterrent against Chinese invasion of Pag-asa island (Thitu island) or military occupation of Scarborough shoal,’ Carpio said.”

“Carpio explained that if China invades Pag-asa island, or if it builds a naval base on Scarborough Shoal, the Philippines could sue China for crimes of aggression” for as long as we are part of the ICC.

According to Wikipedia, the ICC’s Rome Statute “defines an ‘act of aggression’ as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.’

Examples include: invasion or attack by armed forces against territory; military occupation of territory; annexation of territory; bombardment against territory; use of any weapons against territory; blockade of ports or coasts; attack on the land, sea, or air forces or marine and air fleets.

Now that the Philippines is out of the ICC, suing China for its aggressive acts in the West Philippine Sea (South China Sea) will no longer be an option open to us.

The question we Filipinos need to ask is: was this the right move for our country? How does leaving the ICC benefit the Philippines? Send us your comments. And if you believe this was the right move, tell us how we are better off without the ICC. Published 3/18/2019

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