ON March 16, 2018, when Rodrigo Roa Duterte was president, the Philippines formally submitted to the United Nations its Notice of Withdrawal from the Rome Statute. The legality of the Philippine withdrawal from the treaty which created the International Criminal Court (ICC) was questioned.
Before the ICC was established, ad hoc tribunals were created in order to punish unforgivable crimes. For example, the Nuremberg Tribunal tried German war criminals in World War 2; the International Military Tribunal for the Far East brought to justice Japanese war criminals; the International Criminal Tribunal for the former Yugoslavia; the International Criminal Tribunal for Rwanda and other ad hoc tribunals hauled to court those who committed crimes that targeted mankind. To solve the problem of creating international tribunals, the International Law Commission submitted to the UN General Assembly the draft of the Rome Statute. After revisions and numerous discussions, the General Assembly adopted it in 1998.
The Rome Statute created the International Criminal Court and defined its jurisdiction to investigate, prosecute and try individuals of the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression.
The Philippines took an active role in the deliberations as a member of the Drafting Committee. On Dec. 28, 2000, President Joseph Estrada signed the Rome Statute. It signified the Philippines' intent to be bound by the provisions of the Rome Statute which is a multilateral treaty.
Senate concurrence to the treaty was obtained following President Benigno Aquino 3rd's election. In August 2011, the Senate passed Resolution 546 enabling the Philippines to consummate its accession. On Nov. 1, 2011, the treaty entered into force in the Philippines.
On Sept. 15, 2021, the ICC's Pre-Trial Chamber authorized the investigation of then-president Duterte and several other individuals for the commission of any alleged crime within the jurisdiction of the Court, including but not limited to the crime against humanity of murder.
According to the text of the Notice of Withdrawal, it is "premised on the Philippines' principled stand against those who politicize and weaponize human rights, even as its independent and well-functioning organs and agencies continue to exercise jurisdiction over complaints, issues, problems and concerns arising from its efforts to protect its people."
From May 16, 2018 up to Aug. 14, 2018, three groups consisting of Sen. Francis Pangilinan, et al., the Integrated Bar of the Philippines and the Philippine Coalition for the Establishment of the International Criminal Court questioned the legality of the Philippine withdrawal from the ICC. The main issue in the case is that the president cannot unilaterally withdraw from the treaty without the approval of the Senate. As far as the Philippines is concerned, the concurrence of the Senate is needed for treaties to become effective, so the very same procedure must be observed in order to secure the treaty's exit. The petition was opposed by the Office of the Solicitor General.
In March 2019, the President of the Assembly of States Parties "reiterated his regret regarding the withdrawal of the Philippines, effective as of 17 March 2019, from the Rome Statute." He expressed hope for the country to rejoin the treaty in the future. The Assembly of States Parties is the Court's management oversight and legislative body.
The petitions, said the Court ponente, are moot, since they "fail to present a persisting case or controversy that impels the Court's review." (A ponente is the person who writes the decision or the ponencia.) The case is moot, continued the ponente, when it "ceases to present a justiciable controversy by virtue of supervening events so that a declaration thereon would be of no practical use or value."
The supervening event is when the ICC itself announced the Philippines' departure from the Rome Statute effective March 17, 2019.
This is because, according to the ponente, the declaration coming from the International Court itself settles any doubt on whether there are lingering factual occurrences that may be adjudicated. No longer is there an unsettled incident demanding resolution "any decision on the Philippine's withdrawal is... merely a matter of theory."
The ponente further said that mechanisms that safeguard human rights and protect us against the grave offenses sought to be addressed by the Rome Statute remain formally in place in the Philippines.
As a guide for future cases, said the ponente, the Court recognizes that, "As primary architect of foreign policy, the President enjoys a degree of leeway to withdraw from treaties which are bona fide deemed contrary to the Constitution or our laws and to withdraw in keeping with the national policy adopted pursuant to the Constitution and our laws."
However, the ponente continued, the president's discretion "to withdraw is qualified by the extent of legislative involvement on the manner by which a treaty was entered into or came into effect. The President cannot unilaterally withdraw from treaties that were entered into pursuant to the legislative intent manifested in prior laws or subsequently affirmed by succeeding laws. Treaties where Senate concurrence for accession is expressly premised on the same concurrence for withdrawal likewise cannot be the subject of unilateral withdrawal."
What does this mean? Well, the president cannot withdraw from a treaty unilaterally if Congress has previously manifested its intent to enter into the treaty through prior laws or subsequent laws were passed affirming the treaty or when the Senate gave its concurrence to the treaty, it provided that its concurrence must likewise be obtained when the State, through the president, disengages from the treaty.
Finally, the ponente said, fixing a well-defined expiration date to the ICC's jurisdiction: "... the International Criminal Court retains jurisdiction over any and all acts committed by government actors until March 17, 2019. Hence, withdrawal from the Rome Statute does not affect the liabilities of individuals charged before the International Criminal Court for acts committed up to this date."