Jurisdiction over the Philippines even if it has withdrawn its ICC membership
The International Criminal Court, or the ICC, as it is universally known, is an intergovernmental organization and international tribunal that sits in the Hague, Netherlands.
It was officially established by the Rome Statute in 1998. However, the ICC was considered to be operational only on July 01, 2002, after the ratification by sixty countries of the Rome Statute.
According to the ICC website, there are 123 member states as of today. Notably, the Philippines was the latest country to withdraw its membership after Burundi had withdrawn in 2017.
The Philippines officially deposited its notice of withdrawal on March 17, 2018. Nevertheless, the ICC rules provide that such withdrawal shall take effect only on March 17, 2019, or one year from the submission of notice.
Henceforth, the question now is, does the ICC still have the jurisdiction over the Philippines today? And corollary to this, can the ICC take President Duterte to trial for the complaints relating to crimes against humanity, which have been filed against him for his drug war campaign?
According to the official website of the ICC, an investigation is on its way for:
“[a]ny alleged crime within the jurisdiction of the Court, including but not limited to the crime against humanity of murder, committed in the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called ‘war on drugs’ campaign.”
This pronouncement means that, despite the withdrawal, the ICC still has jurisdiction over the Republic of the Philippines for violations of the Rome Statute.
This will pertain to the crimes allegedly committed during the period within which the Philippines was still a member. Therefore, according to ICC, it will cover those from November 01, 2011 up to March 16, 2019.
Effect of the withdrawal of the Philippines
The most direct effect of the withdrawal is that the ICC loses jurisdiction over the Philippines for supposed violations of the Rome Statute after the withdrawal officially took effect on March 17, 2019.
However, there are more pressing consequences of such cessation of membership. According to public sentiments, it may result to the possible frustration and loss of trust, not just from the Filipino people, but also from the International Community.
On the one hand, a portion of the Filipino population, relative to over reaching tendencies, may have grown weary and disappointed with how the current administration has been handling the anti-drug campaign.
According to the available government data, the total number of arrested drug suspects is at 293,841 while the number of those who were killed during anti-drug police operations from July 1, 2016 to May 31, 2021 is at 6,147.
Nevertheless, human rights groups argued that the number may have reached over 12,000, while opposition lawmakers claimed that the number could have breached the 20,000 mark.
This may have caused terror to poor families who live in shanties and squatter areas. These places have been the hotspots of anti-drug operations. Many of which were argued to be illegitimate and anti-poor.
On the other hand, this may also get the ire of international actors such as the United Nations and other more vocal states such as the United States of America.
The European Union, for example, released a statement that it “regrets” the decision of the Philippines, adding that “The EU and its Member States remain staunch supporters of the ICC and are committed to full co-operation on the prevention of serious crimes falling under the jurisdiction of the Court.”
Can the ICC prosecute those individuals, who appear to be liable for crimes of which the ICC has jurisdiction, in a non-member state, where they are staying?
The International Criminal Court is the first permanent and international court which can bring offenders to justice when states do not and unwilling to do so.
As to the jurisdiction of the Criminal Court over persons staying in a non-member state, we believe, this will depend where the crimes were committed.
If the defendants committed crimes in their state, of which it is a party and thereafter stays in a non-member state, the ICC may exercise jurisdiction.
On the other hand if the defendants committed crimes within their state, the latter not being a signatory to the Rome Statute, then, the ICC will not have jurisdiction over them.
International Criminal Court can exercise its jurisdiction over a state if the accused is a citizen of a state party and the alleged crime took place on the territory of the state party and the state is unwilling or unable to investigate or prosecute crimes. Thus, an individual who is a citizen of a state which is not a party is beyond the jurisdiction of ICC.
Effectivity and Scope of Rome Statute | Basis in History
This Criminal Court can prosecute individuals who commit crimes which the Rome Statute defines and punishes. Even the state, where the offenders are currently situated, cannot deny the jurisdiction and cannot refuse the conduct of the International Criminal Court of its investigation.
A brief history of the International Criminal Court would tell us that its establishment was due to the harsh effects of World War II. Its purpose at that time was to prosecute leaders of Axis force who were accused of war crimes.
Two separate courts prosecuted leaders of Axis Powers. The first one was against German and the other was against Japanese leaders.
After World War II, the idea of having an International Criminal Court strengthened in order to address crimes that disturbs the international public and redress human rights violation.
ICC vs. International Court of Justice [ICJ]
The basic purpose of International Law was to actually address human rights violation. There was established the so-called International Court of Justice. Yet, is this the same the International Criminal Court?
Actually, the difference between the two is that International Court of Justice is a civil court, on the other hand, International Criminal Court focuses on prosecuting crimes.
It is like in the Philippines, although in our country we do not have a separate name for courts attending civil actions and criminal actions on the other, we have different procedures and processes for each.
These two courts only focus on violation of human rights. Like for example, where there is a human right violation and in the violation of such right a crime was committed, it will be the International Criminal Court who will prosecute the said crime.
Does an incumbent head of state have an immunity from the prosecution before the ICC?
Commonly, a head of a state enjoys immunity from suit. In the Philippines, a president is immune from being sued during his tenure. It is provided by the Constitution of the Philippines.
Also, International Law considers Diplomatic and Consular Immunity. Basically, these give the representatives of a state an immunity from being sued in a state where he is visiting.
Having said, and in spite of, that, the provisions of Rome Statute of the International Criminal Court seem to disregard this immunity as it has the power to prosecute even the head of the state, even during his incumbency.
According to Article 271 of Rome Statute of the International Criminal Court states that:
1.) This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence;2 and
2.) Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.2
It is clear from the wording of the statute that holding an official position or even being a head of a state will not suffice to bar International Criminal Court from exercising its jurisdiction over an individual who committed a crime punishable under the Rome Statute of International Criminal Court.
These contradicting ideas can be harmonized if we look at the immunity as being provided for the benefit of the State.
Thus, it can be understood that an individual despite being a head of state or holding whatever position in a government extending him an immunity would not bar ICC if he is accused of crimes cognizable by the jurisdiction of the latter.
The head of the state’s immunity is only protected for the benefit of the state, and committing crimes under the Rome Statute does not warrant immunity.
Par in parem non habet imperium
The doctrine that a State cannot be sued in the courts of a foreign state is a long-standing rule of international law that is closely identified with the immunity of a foreign sovereign as well as The Head of State, who is deemed the personification of thereof.
Such precept also covers diplomatic personage, a foreign agent. Hence, if the acts giving rise to a suit are those of a foreign government done by its foreign agent in the exercise of his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit.
Suing a representative of a state is believed to be suing the state itself. Therefore, it runs counter to the doctrine that all states are sovereign equals and cannot assert jurisdiction over one another.
The proscription, however, is not accorded for the benefit of such individual but for the State, whose sovereign status must be respected with high regard.
Nonetheless, this immunity has its limitations. Where a public official is made to account in his personal capacity, such as for the acts contrary to law, the precept of immunity will not apply.
The mantle of protection afforded to public officials and agents of the government may be removed the moment they are sued in their individual and personal capacity.
Thus, in a situation where the public official acts without or in excess of the authority vested in him, the latter will be answerable for his own independent act.
The rationale for this is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice, serving as a cloak to insulate the official, acting on his own, from any wrongdoing, which is otherwise punishable by law.
Closing Perspective
Given these points, the International Criminal Court or ICC still has jurisdiction over the persons who may be deemed to have violated the Rome Statute for supposed crimes when the Republic of the Philippines was still a signatory of the said statute, even if it has withdrawn its ICC membership.
One factor to be considered is the transgression of the Rome Statute committed by certain high-ranking government personalities of the Philippines committed during the period during which the latter was still a member. This covers the period from November 01, 2011 up to March 16, 2019.
As a consequence of the withdrawal of the Philippines from ICC which officially took effect on March 17, 2019, the ICC loses jurisdiction over the Philippines for any subsequent violations of the provisions of the Rome Statute.
ICC can exercise its jurisdiction over a state if the accused is a citizen of a state party and the alleged crime took place on the territory of the state party and the state is unwilling or unable to investigate or prosecute crimes.
An individual who is a citizen of a state which is not a party is beyond the jurisdiction of ICC. An incumbent head of state does not have an immunity from the prosecution before the ICC. Article 27 of Rome Statute of the International Criminal Court provided such policy.
Holding an official position or even being a head of a state will not suffice to bar ICC from exercising its jurisdiction over an individual who committed a crime punishable under the Rome Statute, enforced by International Criminal Court.
A person, despite being a head of state or a ranking official of a government where a law by virtue of his status as such extends him an immunity, will not be insulated from the ICC when the latter assumes its power in hearing and deciding the complaint against the erring official.