Despite our country’s formal withdrawal of its membership in the ICC in accordance with the Rome Statute that created it, the former insists that the Philippines’s withdrawal notwithstanding, as a former member state, the country is not discharged from its obligations including accrued financial obligations to the International Criminal Court (ICC). In particular, it argues that our withdrawal shall not affect our cooperation with the ICC in relation to criminal investigations and proceedings already under its consideration and commenced prior to the effectivity of our withdrawal to which as a member state our country had a duty to cooperate, citing Article 127 of the Rome Statute in support of its position, to wit :
“Article 127”
Withdrawal
1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification unless the notification specifies a later date.
2. 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, including any financial obligations which may have accrued.
Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. “
The position of the ICC and its argument in support thereof is flawed. Firstly, its application of the Rome Statute is fatally wrong. It proceeds from the assumption that the Rome Stature is effective and enforceable in the Philippines. As earlier elaborated, the Rome Statute never became enforceable because the mandatory requirement of its publication in the Official Gazette as required by the New Civil Code pursuant to the constitutional requirement of due process was not complied with. Such omission of publication renders it unenforceable and ineffective as ruled in the Tañada vs Tuvera case.
Secondly, even assuming that the Rome Statute is effective and enforceable despite its non -publication in the Official Gazette, the very Article 127 of the Rome Statute cited by the ICC bolsters the argument that the ICC has no jurisdiction over the Philippines or has ceased jurisdiction over it, assuming it earlier acquired jurisdiction. Article 127 is very clear that a member state’s withdrawal from the ICC will not affect its duty to cooperate with it only when the investigation and proceedings have commenced or were undertaken prior to the effective date of withdrawal.
The ICC did not commence nor undertake any formal investigation or proceeding prior to the Philippines’ effective date of withdrawal. What the Special Prosecutor did was to conduct a preliminary inquiry or examination as to whether or not the information or complaint on alleged extrajudicial killings or human rights abuses will fall under the enumerated crimes that can be the subject of jurisdiction by the ICC, and if so, whether or not the principle of complementarity is observed for it to acquire jurisdiction over the Philippines. Stated differently, what the ICC undertook or commenced was a preliminary inquiry as to whether or not it can acquire jurisdiction over the Philippines. Its inquiry was limited to finding out whether the extrajudicial killings fall under the crime against humanity, and whether the Philippines is incapacitated in prosecuting the violators or having the capacity to do so and does not intend or does not want to prosecute them.
Moreover, no particular person or public official of the Philippines was under investigation or formally charged that could start a formal preliminary investigation to determine probable cause.
Proof that no formal preliminary investigation was conducted yet is the fact that the former Special Prosecutor Fatou Bensou sought permission from the ICC to conduct a preliminary investigation only on 14 June 2021, over alleged human rights abuses which are after the effective date (17 March 2029, of the country’s withdrawal from the ICC after concluding her preliminary examination on whether or not there existed a crime against humanity of murder in the Philippines.
What Special Prosecutor Bensouda conducted was a preliminary examination of the Philippine situation as to the existence of crime against humanity of murder, and not a preliminary investigation over certain persons or public officials in the Philippines commuting such crime.
In fact, she did not even conduct any preliminary examination as to whether the Philippine government has the capacity or the intention to initiate action against the perceived violators as gleaned from her official statement on 14 June 2021, in connection with her request with the International Criminal Court to open a formal investigation on the situation in the Philippines, which pertinent portion we will quote in this column.
(To be continued )