The Philippines: Rome Statute withdrawal illogical and futile
Matt Cannock, Head of Office of Amnesty International’s Centre for International Justice, comments on the Philippines’ withdrawal from the ICC and its consequences for victims of international crimes committed in the country.
The Philippines’ withdrawal from the ICC is deeply regrettable, and the latest signal that powerful individuals in the Philippines are more interested in covering up their own potential responsibility for killings than they are in ensuring justice for the many victims of the country’s so-called ‘war on drugs’. But, it is vitally important to note that the Philippines has continuing obligations to end human rights violations, to investigate and prosecute those suspected of having perpetrated crimes under international law and other serious human rights violations and abuses, and to provide measures for accountability. These obligations are absolute and do not depend on ICC membership.
It is an unfortunate feature of international justice though that the closer accountability appears on the horizon the further the powerful will go to protect themselves. In the case of the ICC, familiar patterns emerge. Incidents of misinformation; reputational attacks; attacks on the institution’s credibility and; orders to make the Court’s work practically very difficult. All of these increase in severity and intensity as the Court steps up its work. So it is no surprise that President Duterte’s government has over the past few weeks increased its attacks on the United Nations; the UN Special Rapporteur on summary, arbitrary and extrajudicial killings; Human Rights Defenders in general; and of course the ICC. What unites all of these individuals and institutions is their call for accountability for the heinous crimes that have been committed against the poor in the Philippines.
As we have seen before, whilst all the attention focuses on the most powerful and the supposed ills befalling him, the voices of the many victims who look to the ICC for justice are lost.
Rome Statute withdrawal – a desperate and futile ‘nuclear option’
Looking at previous ICC withdrawals, regular and deeply unfortunate patterns emerge. With governments – realising that their bombastic posturing and attacks on institutions and individuals will not dissolve the prospect of international accountability – taking what they see as the ‘nuclear option’ of withdrawal from the Rome Statute, in the mistaken belief that this step will make the ICC, their Rome Statute obligations, and the possibility of international criminal investigations and accountability disappear.
Of course, withdrawal does not mean that the ICC’s jurisdiction and States’ obligations are extinguished. International obligations do not simply disappear by erasing a signature from a ledger in the UN treaty office. In the same way that withdrawal from the Rome Statute was so disappointingly predictable in the present Philippines situation, so withdrawal was also foreseen twenty years ago at the Rome Statute’s adoption as a means through which states parties might try to avoid their obligations. With depressing prescience, the drafters of the Rome Statute included Article 127 in the treaty, which provides that ‘a State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a party to the Statute’.
Withdrawal from the Rome Statute only affects the Court’s temporal jurisdiction, which ends on the day that a withdrawal takes effect – that is, one year after notice of withdrawal is given. But, the Office of the Prosecutor is not precluded from opening an investigation after a withdrawal from the Rome Statute, and Amnesty International believes that there are good arguments to be made that the Philippines would also remain under a continuing obligation to cooperate with the Court even if it withdrew from the Rome Statute.
Unfortunately, the Philippines is not the first states party to withdraw from the Rome Statute in an attempt to shield perpetrators from justice. Burundi withdrew from the Rome Statute last year, and that seemingly spurred the Office of the Prosecutor to open an investigation sooner than she would normally have. Of course, the Prosecutor must not be rushed in her decision to open investigations, but the Prosecutor has certainly shown that she would not be cowed by states who try to avoid accountability when the need is greatest.
Therefore, the Philippines’ withdrawal should be futile. The OTP must continue in its preliminary examination despite the withdrawal and the victims of crimes under international law in the Philippines – their voices temporarily drowned out by headline-grabbing anti-ICC bluster – should still look to the ICC for truth, justice and reparations, and their stories must be heard.
Oplan Tokhang (‘Operation Kneel and Plead’)’
Over the last eighteen months, Amnesty International has documented unlawful killings of thousands of people, the vast majority of them from poor and marginalised communities, in attacks so extensive and brutal they may amount to crimes against humanity. This has taken place in a culture of almost total impunity. For this reason, we called for the ICC to open a preliminary examination in the Philippines, in order to investigate each of the thousands of unlawful killings, to hold to account perpetrators, including those in positions of command.
Take, for example, the killing of Ulyses Baja, a 33-year-old father of five in Tuburan, Cebu Province, who, according to relatives, sold and used drugs. Police visited him under ‘Oplan Tokhang’, attempting to carry out a “buy-bust” operation, according to the police spot report. The police alleged that Baja pulled a gun from his waist and they used ‘a deadly force in order to neutralize the subject.’ Several witnesses interviewed by Amnesty International said the police version was false. A woman told Amnesty International that she saw a blue car pull up and four men emerge wearing black uniforms:
Two men were asking, ‘Who among you us is Ulyses?’ The other guy said, ‘Sir, it’s not me.’ They told the guy, ‘Run, you didn’t see anything.’ The guy ran in front of us. … I saw Ulyses raise his arms and say, ‘Sir, I already stopped doing that.’ … I was just across the street. I was nervous, at the first gunshot I wanted to run but I couldn’t because I was too nervous, by the third gunshot I ran, when I stopped at a store [down the street], I could see my knees shaking. There didn’t seem to have been a conversation. Ulyses immediately raised his hands and said, ‘I already stopped.’ I only expected they would arrest Ulyses, I didn’t expect they would kill him’
The attacks by police have often been indiscriminate. As of October 2017, as many as 60 children had been killed in the ‘war on drugs’. President Duterte has called these child victims ‘collateral damage’. Given the regularity of police and vigilante-style killings in people’s homes, we can add hundreds, if not thousands, of children who have been severely traumatised by directly witnessing their relative’s unlawful drug-related killing. In a town in Cotabato Province, a witness interviewed by Amnesty International watched as a friend was killed in November 2016 while working at a cafeteria outside a local school. Students were packed in for the lunch hour, as the assailant pulled out a gun. The witness recalled thinking she “was in a movie, I thought it was a joke, that it was a toy gun. The gunman put the gun to the back of [his] head. … Then there was a loud sound. It sounded like a firecracker.” As the children screamed, the killer left with a companion on a motorcycle.
A wake-up call to States
The more the Philippines government decries international investigations and scrutiny, the more the ICC, its states parties, and other international mechanisms must be resolute in their work and support for international justice and accountability.
States party to the Rome Statute must do all they can to get the Philippines to rescind its withdrawal and remind the Philippines that its obligations towards the Court remain absolute. Even if a change of heart may appear unlikely today, a lesson from previous withdrawals from the Rome Statute must be that States may ‘withdraw their withdrawal’. States must argue the ICC’s case convincingly over the coming year. They must reject the unfounded allegations made against the Court and extol the benefits of Rome Statute membership. Above all, states parties should ensure that they raise the rights of victims in the Philippines to access justice at the ICC.
At the UN level, Member States must urge the Philippines authorities to allow Special Procedures and international human rights investigators access to the country, to investigate allegations of human rights violations and abuses, and to allow them to make recommendations to ensure accountability. Human Rights Defenders in the Philippines are facing increasing attacks and must be protected, with these attacks loudly condemned.
Missing the trick – From withdrawal to cooperation
The primary obligation to stop violations and to properly investigate and prosecute crimes under international law rests with the Philippines government and the national authorities – regardless of the Philippines’ membership to the ICC.
Nonetheless, the Philippines’ withdrawal from the Rome Statute spectacularly misses the point of the Rome Statute system. Rather than withdrawing from the Rome Statute, the Philippines government should draw closer to the Court. Under the principle of complementarity, if the Philippines investigates and prosecutes suspected perpetrators and works closely with the ICC when doing so, the OTP may decide not to open an investigation. In other words, it is in the Philippines government’s interest to end Rome Statute crimes and to bring alleged perpetrators to trial. This message should be pressed upon the government as loudly as possible: authentic domestic efforts towards accountability for crimes under international law would ensure that the OTP does not need to step in as a last resort.
To this end, the Prosecutor would need solid evidence of genuine investigations and prosecutions at the national level to be satisfied that the Philippines was fulfilling its complementarity obligations. At present though, investigations in the Philippines are weak or non-existent, and the actions of the Philippines government have so far shown that self-preservation and impunity are the most pressing priorities. But individual self-preservation from accountability must not trump collective calls for justice from the many victims of crimes under international law.