The Philippines Refuses to Cooperate With the ICC. What Now?

(SPOT.ph) The Philippines’ relationship with the International Criminal Court has a long-winded history, spilling over from the Duterte administration to the Marcos administration over a formal investigation on the former’s “war on drugs” campaign.

In the two years since the ICC launched a formal investigation on the Philippines, the country has threatened to arrest prosecutors in, withdrawn from, appealed to, and shut out the international tribunal. 

The latest on the ICC: In January 2023, Prosecutor Karim Khan said the ICC would reopen its investigation as the Philippines, under President Ferdinand “Bongbong” Marcos Jr., provided insufficient evidence that it was carrying out its promised investigations into the drug war killings. The ICC said it “is not satisfied that the Philippines is undertaking relevant investigations that would warrant a deferral of the court's investigations.”

When the Philippines sought to appeal the ICC probe for the second time, Khan rejected it. What happens now?

Is the Philippines obligated to cooperate with the ICC? 

The Philippines might have withdrawn from the ICC in 2018, but the ICC Pre-Trial Chamber said it still has the authority to hold investigations over the Duterte administration’s “war on drugs” campaign since it took place from 2016 to 2019—back when the country was still tied to the ICC as a member-state. 

If the country where the official comes from is a signatory to the Rome Statute (the treaty that established the ICC), the ICC said in its official document that the country is obligated to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court." In a 101-page unanimous decision issued in March 2021, the Supreme Court reiterates the Philippine government’s obligation to adhere to the ICC.

However, Solicitor General Menardo Guevarra claimed that the area of jurisdiction isn’t the same thing as the exercise of it, which is why the Philippine government refuses to participate with the ICC. Guevarra was the former Department of Justice Secretary under the Duterte administration from 2018 to 2022.

“It’s not enough that the crimes are committed during the time that the withdrawing state is still a member. It’s also important to note the time [the ICC] will exercise that jurisdiction,” Guevarra said in a March 29 interview with ANC. “The request by the prosecutor to commence his investigation triggered the exercise of jurisdiction by the ICC. That was already in September 2021. Our withdrawal had become effective in March 2019. At that time the exercise of jurisdiction was triggered, we were no longer a member. We have no legal duty to cooperate anymore.”

“My position hasn’t changed and I have stated it often even before I took office as President that there are many questions about their jurisdiction and what we in the Philippines regard as an intrusion into our internal matters and a threat to our sovereignty,”  President Bongbong Marcos said during a media interview in February. 

"So no, I do not see what their jurisdiction is. I feel that we have in our police, in our judiciary, a good system. We do not need assistance from any outside entity." 

“So until those questions of jurisdiction and the effects on the sovereignty of the Republic are sufficiently answered, I cannot cooperate with them,” he said.

Also read: The International Criminal Court: What Is It and What Does It Do?

What if the Philippines continues to refuse participation?

It’s not the first time a member-state has tried to block ICC intervention by withdrawing from them entirely (see: Burundi in 2017). In the case of the Philippines, ICC probers were banned from stepping foot into the country, with current Justice Secretary Jesus Crispin Remulla saying he will force the international body to “take the first plane out.”

“There are many ways of establishing guilt or innocence without necessarily the cooperation of the Philippine government,” Ruben Carranza, Senior Expert of the International Center of Transitional Justice, said in a February 20 interview with ANC.

Although the Philippines refuses to participate as a state, Carranza said there is other available evidence that has come to the prosecutor from other sources, including witnesses who came forward and the Commission on Human Rights. 

The ICC can also refer the matter to the ICC’s management body called the Assembly of States Parties as per Article 87(7) of the Rome Statute, who considers “matters of non-cooperation.” This could come in the form of diplomatic pressure or economic sanctions to encourage the country to cooperate.

Case in point: investment analyst and lawyer Terry Ridon told BusinessWorld that “rejection of further cooperation with the ICC will expose [Marcos] as an unreliable economic partner, interested only in exacting economic benefits while rejecting values deemed important by various international partners.”

ICC investigations may or may not lead to trials.

What can the ICC do to guilty parties?

Enforcement of the sentence is a different matter altogether. In “Understanding the International Criminal Court,” the ICC said it does not have a police force to implement a warrant of arrest. Countries who are not (or are no longer) signatories to the Rome Statute are unlikely to have its accused officials extradited to the ICC or otherwise held accountable for the crime. 

The ICC can issue a warrant of arrest for the individual in question, and if the individual is found to be within the jurisdiction of another state that is party to the Rome Statute, that state could be asked to arrest and surrender the individual to the ICC for trial. Without its own police force, the ICC has no choice but to rely on the international community to help with arrests.

Also read: ICC Reopens Probe Into the Philippines' "War on Drugs"

Who will be convicted?

The ICC has jurisdiction only over individuals, not countries. Criminal liability before the ICC can apply to the following people:

•       Those who commit crimes
•       Those who give orders to the crime
•       Those in a position of command who should have been aware of the abuses and failed to prevent them or report those responsible

Case in point: former Liberian President Charles Taylor was convicted by the ICC in 2012 for his support of a rebel group known for killing and raping civilians in the neighboring country of Sierra Leone.

Ultimately, it is the ICC’s policy to hold accountable who hold the most weight for the crimes. According to the ICC, “it will not be able to bring to justice every person suspected of committing crimes of concern to the international community.” Instead, it will “focus its investigations and prosecutions on those who, having regard to the evidence gathered, bear the greatest responsibility for such crimes.” Judges of the ICC can impose a prison sentence, which can involve lifetime imprisonment for extreme cases.

“It’s important to point out that the prosecutor has not identified anyone who is under investigation. It’s just killings, thousands of them, but not an individual who’s responsible for these killings,” Carranza said in a February 20 interview with the ANC. “That’s why I don’t know why Gloria and her congressmen are coming forward saying they will defend Rodrigo Duterte. Who has accused Rodrigo Duterte before the ICC? No one else has yet.” 

On the other hand, Guevarra emphasized that the Philippines’ refusal to engage with the ICC has nothing to do with personalities and everything to do with maintaining sovereignty.

“What we’re protecting is our sovereign right to do this investigation in our own way within the framework of our legal system. That’s all we want to project to the ICC. We’re not protecting anyone,” Guevarra said in a March 29 interview with ANC.

Also read: Marcos Says Philippines to Stay Out of ICC