Philippine Sovereignty Over International Law: Remulla's Stance on ICC

 

Introduction

The International Criminal Court (ICC) is an intergovernmental organization and international tribunal based in The Hague, Netherlands. The ICC investigates and tries individuals charged with genocide, war crimes, crimes against humanity and the crime of aggression.

In February 2018, the ICC launched a preliminary examination into the Philippine government's deadly war on drugs campaign. The examination is evaluating allegations of thousands of unlawful killings by police forces and other government agents since President Rodrigo Duterte launched the campaign in 2016.

This is not the first time the ICC has investigated the Philippines. In 2011, the ICC launched a preliminary examination into alleged extrajudicial killings and enforced disappearances under the administration of former President Gloria Macapagal-Arroyo. However, that examination was closed in 2015 for lack of jurisdiction.

The ongoing examination into Duterte's war on drugs has drawn criticism from some Philippine officials, including the newly appointed Justice Secretary Jesus Crispin Remulla. Remulla recently stated the ICC investigation violates the country's sovereignty and constitution. The ICC maintains it has jurisdiction to conduct the examination under the Rome Statute.

ICC's Ongoing Investigation

The International Criminal Court (ICC) is currently conducting a preliminary examination into Philippine President Rodrigo Duterte's violent war on drugs campaign. This controversial campaign has resulted in the deaths of thousands of Filipinos since Duterte took office in 2016.

The ICC first announced it had opened a preliminary examination into the matter in February 2018. The purpose of a preliminary examination is for the ICC to determine if there is enough evidence of crimes that fall under its jurisdiction to merit a full investigation. Specifically, the ICC is looking into whether the killings associated with Duterte's war on drugs can be considered crimes against humanity.

According to ICC guidelines, crimes against humanity involve any number of illegal acts, including murder, committed as part of a widespread or systematic attack directed against any civilian population. To date, estimates suggest that over 20,000 people have been killed by police and vigilantes since the war on drugs began. Human rights groups have argued that many of these deaths amount to extrajudicial killings, with police conducting buy-bust operations where suspects did not have a chance to surrender. There are also allegations of police falsifying evidence.

The preliminary examination is still ongoing, with ICC officials monitoring events in the Philippines and continuing to gather information. However, a recent statement made by Philippine Justice Secretary Jesus Crispin Remulla suggests the investigation may lead to heightened tensions between the Duterte administration and international judicial bodies.

Remulla's Statement on the ICC Investigation

Justice Secretary Jesus Crispin Remulla recently issued a statement regarding the International Criminal Court's (ICC) investigation into the Philippine government's war on drugs campaign. Remulla asserted that the ICC must adhere to the Philippine constitution and cannot supersede the country's sovereignty.

Specifically, Remulla declared that the ICC "has no jurisdiction...to do anything in the Philippines" because the country withdrew from the Rome Statute in 2018. The Rome Statute is the treaty that established the ICC. By withdrawing, Remulla argues, the Philippines is no longer under the ICC's jurisdiction.

Furthermore, Remulla emphasized that the ICC must respect the Philippine constitution. He stated that international bodies operating in the Philippines, like the ICC, are "bound by the limits and restraints imposed by our fundamental law." Remulla contends that the ICC cannot legally conduct investigations or activities that go beyond what is allowed under the constitution.

Overall, Remulla made it clear that in his view, the ICC has no authority under international law or the Philippine constitution to investigate or prosecute incidents related to the drug war. He maintains that such matters fall strictly under Philippine sovereignty and jurisdiction. Remulla has vowed to challenge any ICC actions that attempt to override the country's laws and constitution.

ICC's Response

The ICC responded promptly to Minister Remulla's statements regarding their investigation. The Court expressed that it remains committed to its duties under the Rome Statute and will continue its preliminary examination into the situation in the Philippines in full independence and impartiality.

The ICC emphasized that all States that join the Court commit to abiding by its rules and procedures. They reiterated that the Philippines became a State Party to the Rome Statute in 2011 and thus accepted the Court's jurisdiction.

The ICC acknowledged the principles of complementarity and due process underpinning its work. However, they asserted that it is the Court's mandate to determine whether national proceedings meet the necessary thresholds to render a case inadmissible before the ICC.

In their response, the ICC encouraged the Philippines to provide information on relevant national proceedings and noted they will continue cooperating with authorities as part of the preliminary examination process. They aim to determine if the criteria has been met to merit opening an investigation into the situation.

The ICC concluded by underscoring its impartiality, emphasizing they examine allegations from all parties and will only proceed if the evidence meets the required gravity threshold. They aim to conduct an independent and objective assessment adhering to the Rome Statute provisions.

Legality and Jurisdiction

The key question around the ICC's investigation into possible crimes against humanity committed in the Philippines during Duterte's so-called 'war on drugs' is whether the ICC has jurisdiction to conduct such an investigation.

The Philippines ratified the Rome Statute, which established the ICC, in 2011. However, in March 2018 the Philippines submitted a written notification to the UN Secretary General of its intent to withdraw from the Rome Statute. Under the rules of the statute, withdrawal takes effect one year after such notification.

The alleged extrajudicial killings being investigated by the ICC took place between 2016-2019, during the time period when the Philippines was still a signatory to the Rome Statute. The ICC and rights groups therefore argue that the court retains jurisdiction over crimes committed while the state was still party to the statute.

However, Duterte's administration asserts that ICC jurisdiction ended when the Philippines withdrew from the statute in March 2019. The administration argues that any continuing ICC investigation violates the country's sovereignty.

Ultimately, determining which interpretation prevails may need to be resolved by the ICC's own appeals process or the United Nations International Court of Justice. The legal uncertainty underscores the complexity around issues of jurisdiction when states enter and exit from international treaties and statutes.

Support and Opposition

The ICC investigation into the Philippine government's war on drugs has received both support and criticism within the Philippines.

Support

• Human rights groups and activists have voiced approval of the ICC probe, seeing it as necessary to hold the Duterte administration accountable for alleged abuses and extrajudicial killings during the drug war. Groups like Amnesty International and Human Rights Watch have provided documentation and lobbied for an investigation.

• The political opposition, including key figures like Vice President Leni Robredo, have backed an impartial investigation as a way to establish facts, provide justice, and fulfill the government's international commitments. Some see it as the only pathway for accountability beyond partisan domestic politics.

• Families of drug war victims and survivors of alleged abuses have been vocal in calling for an ICC investigation. Many feel it is their only recourse given lack of progress in domestic cases.

Opposition

• President Duterte and his allies have condemned the ICC probe as interference in the country's domestic affairs. They argue the ICC lacks jurisdiction after the Philippines withdrew from the Rome Statute.

• Supporters of the administration's drug war approach have dismissed the ICC case as biased and driven by foreign criticism of Duterte's policies. They claim the drug operations were justified to save lives from the drug trade.

• Some lawmakers have warned of reduced sovereignty and compromised governance if international bodies can invalidate domestic policy. They argue the situation should be resolved through local institutions.

• Government agencies like the Department of Justice have asserted that domestic mechanisms exist to address allegations of abuse, making ICC involvement unnecessary. However they have been criticized as lacking independence to impartially investigate state actors.

Past ICC Investigations

The ICC has conducted investigations in the Philippines previously, though none have resulted in convictions.

In 2021, the ICC authorized an investigation into President Duterte's controversial war on drugs campaign. The investigation examined allegations of extrajudicial killings and other human rights abuses committed during the crackdown from 2016-2019, which resulted in the deaths of over 6,000 suspected drug offenders. Human rights groups alleged the police acted with impunity and the justice system failed to hold perpetrators accountable. However, the probe was suspended in November 2022 after the Philippines said it was doing its own investigation.

The ICC also did a preliminary examination from 2008-2011 into alleged crimes against humanity committed during clashes between the government and rebel groups like the New People's Army and Moro Islamic Liberation Front. The clashes resulted in over 1,000 civilian deaths from 2001-2010. While ultimately deciding not to move ahead with a full investigation, the ICC said the findings could be revisited in the future.

Another ICC preliminary examination from 2021-2022 looked at drug war killings from 2011-2019 under the Aquino administration preceding Duterte's term. While finding "reasonable basis" to believe crimes were committed, the ICC again decided not to open a formal probe after the government argued domestic investigations were underway.

##Implications

The ICC's investigation into Duterte's war on drugs could have major implications for the former president and the Philippines.

If the probe finds evidence of crimes against humanity committed under Duterte's orders, he could potentially face arrest and trial at the Hague. This would be an unprecedented development, as Duterte is the first former Philippine president to ever face an ICC investigation.

The probe also threatens to undermine Duterte's legitimacy and political standing. He and his allies have long defended the drug war as lawful and necessary. But if the ICC determines crimes were committed, it would confirm allegations that Duterte's drug war involved extrajudicial killings and violated human rights.

More broadly, the investigation casts a pall over Duterte's legacy. His tough-on-crime persona and the drug war have been central to his popularity. An ICC indictment would recast Duterte's rule as a human rights catastrophe rather than a law-and-order triumph.

For the Philippines, the probe risks damaging the country's reputation and international standing. As a signatory to the Rome Statute, the prospect of its former leader standing trial for crimes against humanity is a major embarrassment. It also shows the limits of Philippine sovereignty, with the ICC intervening on internal affairs.

However, Duterte still enjoys widespread domestic support, so the political impact within the Philippines may be limited. His allies and supporters are likely to criticize the ICC probe as foreign meddling. Nonetheless, it marks a dramatic turning point for both Duterte and the country's relationship with international justice.

Precedents

The Philippines is not the first country where the ICC's jurisdiction has been disputed. There are precedents that can provide insight into how these investigations typically play out.

For example, the ICC investigated alleged war crimes in Afghanistan from 2003 to 2021. The Afghan government argued that the ICC did not have jurisdiction since Afghanistan was not a party to the Rome Statute that established the ICC. However, the ICC's appeals chamber ruled that the court did have jurisdiction over Afghanistan. The investigation ultimately found evidence of war crimes committed by the Taliban, Afghan forces, and US personnel. However, the election of a new Afghan government in 2021 led the ICC to suspend its investigation due to lack of cooperation.

Another case is Kenya, where the ICC prosecutor opened an investigation into electoral violence in 2010. The Kenyan government challenged the ICC's jurisdiction and the case against President Uhuru Kenyatta collapsed due to insufficient evidence. However, the investigation continued into Deputy President William Ruto, who was charged but eventually acquitted of crimes against humanity in 2016. The drawn-out case highlighted tensions around sovereignty and the role of international law.

These examples demonstrate the complexities involved when the ICC asserts jurisdiction over non-member states. There are heated disputes over sovereignty and whether international law should supersede national jurisdictions. However, the ICC maintains its duty to investigate international crimes regardless of jurisdictional objections. The path forward for the Philippines will likely follow a lengthy political and legal battle.

Conclusion

The ongoing investigation by the International Criminal Court (ICC) into the Philippine government's war on drugs has sparked a debate about the role and authority of international bodies operating within the country. Justice Secretary Jesus Crispin Remulla recently stated that the ICC's investigation is "legally erroneous" and that international entities must adhere to the Philippine constitution.

In response, the ICC affirmed that it has jurisdiction under the Rome Statute to investigate crimes within member states when local authorities fail to do so genuinely. Supporters argue the ICC provides crucial oversight of human rights abuses, while critics contend it infringes on national sovereignty.

This controversy highlights the complex tensions between international law and domestic authority. Past ICC investigations in other nations demonstrate these disputes often play out over years. The outcome in the Philippines could set an important precedent for the ICC's ability to pursue justice globally in the face of resistance from national governments.

In summary, as the ICC moves forward with its investigation, expect continued debate on the scope of its powers versus that of the Philippine government. But the victims of alleged abuses still await justice and accountability. This case will be a pivotal test of whether international bodies can deliver that when domestic systems fall short. Though the path ahead remains unclear, lasting resolution will require good faith efforts by both sides to find common ground under the law.