MANILA – Malacañang on Thursday said there is no need for a Senate concurrence in the Philippines’’ withdrawal from the International Criminal Court (ICC), even as it maintained President Rodrigo Duterte is not avoiding accountability with the government’s latest move.
“There is no obligation to do so… Is there anything that says executive needs to consult with the Senate when we withdraw from a treaty? None!” presidential spokesperson Harry Roque said in a news conference.
“The reason why the Senate consent is not necessary is that the Constitution does not provide it’s necessary. That is a decision to be made by the President as Chief architect of foreign policy.”
Duterte, in a statement on Wednesday, announced his government’s decision to withdraw the country’s ratification of the Rome Statute, a 1998 United Nations treaty which created the ICC.
Duterte said the ICC’s “politicized” nature has prompted him to withdraw the country from the statute. He also cited the supposed failure of the previous government to publish the treaty in the Official Gazette or newspaper of general circulation as reason why it is “not effective nor enforceable” in the Philippines.
Former Solicitor General Florin Hilbay, however, has a different view, saying Duterte “has no authority to withdraw from the ICC on his own.”
The ICC was ratified by the Senate. Withdrawal, as a constitutional matter, requires a similar concurrence,” Hilbay said in a tweet.
“Also, withdrawal from ICC takes effect 1 [year] after notification & [without] prejudice to any pending matter.”
Fourteen senators in February 2017 signed a resolution expressing that termination of or withdrawal from treaties, international agreements concurred in by the Senate shall be valid and effective only upon concurrence by the Senate.
The resolution, however, remains pending.
“Even former Senate President [Franklin] Drilon has admitted that he tried to adopt a resolution that before we could withdraw from a treaty, there must be a Senate concurrence, and it was not acted upon by his colleagues,” Roque said.
Roque, meanwhile, agreed that the 1-year period before the withdrawal takes effect must be honored by the Philippines, but he said the initial review of the communication filed by Filipino lawyer Jude Sabio against Duterte in connection to the war on drugs is not yet part of the formal process.
Roque also said the ICC, known for taking a long time to make progress on cases, must be able to determine whether it has jurisdiction on Duterte’s case within a year.
“If the ICC does not proceed within one year to preliminary investigation, the case and the preliminary examination will be forfeited,” Roque said.
Last month, the ICC announced it will begin its “preliminary examination” into the communication filed by Sabio, who accused the President, senior government officials, and several police officers of committing crimes against humanity with his controversial war on drugs.
Nearly 4,000 drug suspects have been killed in drug operations since Duterte assumed office over a year ago. Human rights groups, however, believe this number is understated as it does not include people who were killed by so-called vigilantes, some of whom were alleged to be state-sponsored.
Duterte, known for his tough language, previously said he was ready to face the ICC and answer all the allegations against him. He even said, albeit in jest, that he was willing to be executed through a firing squad if proven guilty. Later, Duterte said the ICC can never have jurisdiction over him.
Roque explained that even if the ICC agrees it has jurisdiction over the case, the Philippines will not cooperate.
“I don’t think the Philippines will ever surrender him to the International Criminal Court,” he said.
Created in 1998 through the Rome Statute, the ICC has jurisdiction over 124 of its members, including the Philippines.
The Philippines signed the Rome Statute on December 28, 2000 and ratified and endorsed it in August 2011, during the time of Duterte’s predecessor, then President Benigno Aquino III.
The ICC is the first permanent institution having power to exercise jurisdiction over persons for the most serious crimes of international concern such as genocide, crimes against humanity, war crimes and crimes of aggression, and is seen to help end impunity for the perpetrators of these crimes.