March 14, 2019
THE Supreme Court was wise to take no action this week on the petitions challenging the Philippine government’s decision to withdraw from the International Criminal Court (ICC).
It did so even though the withdrawal is poised to take effect on March 17.
On sound constitutional grounds and established precedent, the high court did right not to contend with the executive on the issue of whether the President has the authority to withdraw the country from the ICC treaty.
With keen regard for the national interest and national sovereignty, President Duterte was indubitably right to order the country‘s formal withdrawal from the Rome statute, after an ICC prosecutor took the initial step toward conducting a preliminary examination of alleged abuses in the country on account of the government’s war on illegal drugs.
The move of lawyer Jude Sabio to bring the president before the ICC was chancy (like a Hail Mary pass) and futile to begin with.
The decision of some senators to challenge the withdrawal decision was foreordained to fail.
The Philippines’ withdrawal from the ICC will be a fact by Monday.
Duterte has the authority
It is a useful exercise to examine the withdrawal decision on 1) its constitutional grounds and 2) its merits as policy.
First, the constitutional grounds.
The senators’ challenge is based principally on the constitutional provision in Article VII, Section 21 of the Constitution, which reads: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”
They argue from this that Philippine withdrawal from the ICC treaty should ergo, require also the concurrence of two-thirds of the Senate.
Not so, says US practice and jurisprudence.
The powers of the government in international affairs are “inherent, plenary and exclusive.”
In the book, The Politics of the Presidency (CQ Press, Washington D.C., 2010), authors Joseph Pika and John Anthony Maltese wrote this illuminating explanation:
“Although the President’s power to negotiate international agreements is subject to political and constitutional limitations, the power to terminate such agreements is not. The Supreme Court ruled in 1979 that the president could unilaterally abrogate a defense treaty with Taiwan that was part of the agreements establishing diplomatic relations between the United States and the People’s Republic of China.
“Reinterpretation also gives the president expanded power in the treaty area. The Reagan administration provides the best example: in 1985 it broadened the terms of the 1972 Anti-Ballistic Missile Treaty (ABM), over the objections of the Senate and the Soviet Union, to accommodate the development of the strategic defense initiative. George W. Bush announced in May 2001 that he would proceed with the development and deployment of an anti-missile defense system and hoped to establish a ‘new framework’ with Russia that was likely to take the form of an executive agreement rather than a new or amended ABM treaty.”
All this arises from the president’s role as the nation’s official organ for the conduct of foreign relations.
Just ignore the ICC
The Duterte government filed its notice of withdrawal from the Rome Statute before the United Nations Secretary General last year, shortly after the ICC’s prosecutor launched a preliminary examination of allegations of extrajudicial killings against the President in connection with the war on drugs.
According to the Rome Statute, a case is inadmissible when the state involved is investigating it, “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution,” among other grounds.
Established in 2002, the ICC has jurisdiction over persons accused of genocide, war crimes, crimes against humanity and the crime of aggression.
The Philippine Senate ratified the Rome Statute in 2011, making the Philippines the 117th signatory to the treaty.
Philippine Justice Secretary Menardo Guevarra contends that the ICC cannot investigate and prosecute President Duterte over the killings and alleged human rights violations under his administration’s war on drugs.
He believes DU30 does not even need to formally respond to the charges in the complaints filed against him before the ICC, following the country’s withdrawal from the international tribunal.
Guevarra explained that apart from the government’s withdrawal of its membership, the ICC cannot take jurisdiction over the cases because the justice system in the country is working.
“As far as our country is concerned, the ICC cannot exercise its jurisdiction to investigate, much less to prosecute, because our own investigative agencies and judicial bodies are functioning effectively.”
“Also, casualties in the anti-drug campaign are not comparable to genocide or any crime against humanity, by any stretch of imagination or twisting of settled international law doctrine,” he added.
He cited the cases of three policemen who were convicted by the Caloocan City regional trial court in November last year and found guilty of murder for the August 2017 slay of Kian Loyd delos Santos, one of the controversial drug war cases. Guevarra said the convictions rebut the charge of impunity by critics of the drug war.
Hence, Guevarra believes Duterte can ignore the charges before the ICC or any order from the tribunal to answer the complaints.
“Answering or participating in any way will be inconsistent with our act of withdrawal from the ICC,” he said.
It is sometimes forgotten in Manila that the ICC is one of the products of liberal internationalism, the foreign policy of the American Democratic party and liberal parties in Europe.
The doctrine found its heyday under US President Bill Clinton, whose administration had a mania for treaties.
According to Charles Krauthammer in his book Things That Matter (Crown Forum, New York, 2013), the Clinton administration negotiated a succession of treaties and conventions with other countries. It believed in the idea called “the moral suasion” of the international community.
It was for the same reason that liberals embarked on the project of creating the International Criminal Court, whose main object is “the internationalization of justice” through customary international law.
Human rightism found currency in much the same manner.
Globalism also fed the trend.
Many opposed the ICC and human rightism on the grounds that they derogated the sovereignty of nations and the original human rights declaration.
Patrick Buchanan, the conservative columnist, perhaps expressed the opposition best. He wrote:
”History has shown again and again that men do not give loyalty, love or allegiance to entities greater than a nation. No world community replace the ‘patria’. Ultimately, men fight and die for the ‘the ashes of their fathers and the temples of their gods,’ not some New World Order. Who would give his life for the United Nations?”
It was UN Secretary-General Kofi Annan who crystallized the vision of the ICC, which he equated with “the promise of universal justice.”
“That,” said Margaret Thatcher, “is more likely to turn into a nightmare.”
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