Yellow senators no-show for own petition on Philippines withdrawal from ICC

Wednesday August 29, 2018 ()

What will it say for your case if you do not show up for its hearing in open court? It shows your lack of confidence in the merits or prospects of your case, it is simply a desperate ploy to buy more time, or perhaps most likely, the case has become a lost cause or just a waste of time.

The challenge of opposition senators to President Duterte's decision to withdraw the country from the International Criminal Court (ICC) entered this realm of speculation, when the Liberal Party senators — LP president Francis Pangilinan, Senate Minority Leader Franklin Drilon and Paulo Benigno Aquino 4th — did not show up on Tuesday for the oral arguments on their petition before the high court.

Pangilinan, Aquino and Drilon
(Pangilinan (left), Bam Aquino (center) and Drilon)

Instead, they sent lawyer Anne Marie Corominas to speak for them. Corominas explained that the senators wanted more time to decide how they would proceed with the case given the SC's denial of their request to allow detained Senator Leila de Lima to represent them at the oral arguments.

De lima as counsel for the senators? It is one more ruse to pry her out of detention for her drug cases.

Appropriate course of action? What's the truth? The senators do not know how to proceed with their petition? Or whether it is still worth the trouble.

Reasons for not showing up

The senators were wise not to show up, for two compelling reasons.

First, President Duterte has indisputable ground and authority to withdraw the Philippines from the Rome Statute. Withdrawal is a prerogative of a treaty signatory.

Second, the ICC is a dubious institution, rejected or ignored by the biggest and leading countries of the world, and propped up mainly by lesser states. It was controversial at birth; it remains controversial and debatable today.

Chief diplomat

The president of the Philippines has constitutional primacy in the conduct of foreign affairs. He is the government's principal agent in the world, if not its sole organ.

The president is not only authorized to make treaties with the consent of the Senate. Article VII, Section 21 of the Charter provides:

"No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate."

It is conjectured by the opposition senators that if the Senate must consent to a treaty, it also must concur in the government's withdrawal from a treaty.

In the book, The Politics of the Presidency (CQ Press, 2010), authors Joseph Pika and John Anthony Maltese write:

"Although the president's power to negotiate international agreements is subject to political and constitutional limitations, the power to terminate such agreements is not. The Supreme Court ruled in 1979 that the president could unilaterally abrogate a defense treaty with Taiwan that was part of the agreements establishing diplomatic relations between the United States and the People's Republic of China."

The court decision is Goldwater v. Carter, 444 US. 996 (1979). Although the US Supreme Court case concerned the issue of the recognition of foreign governments, the case has been interpreted as authorizing unilateral presidential breaking of treaties in accordance with their terms.

This is not all. Pika and Maltese also wrote that contrary to popular understanding, the Senate does not ratify a treaty – it approves the treaty negotiated by the president. The president may refuse to sign, that is to ratify, a treaty approved by the Senate, either because of amendments or reservations or because it was negotiated by a previous administration.

With this explanation of US practice, how on earth will the opposition convince our Supreme Court to reverse President Duterte's decision to withdraw the Philippines from the Rome Statute?

Institution of dubious authority

Of course, the opposition also contends that withdrawing the Philippines from the International Criminal Court is a mistake; it could expose the nation to crimes and violations that the court is designed to punish.

President Duterte announced in March this year the government's withdrawal of its ratification of the Rome Statute, the United Nations treaty that created the ICC.

Duterte cited "baseless, unprecedented and outrageous attacks" against him and his administration as the reason for the Philippines' withdrawal as a state party.

The move came after ICC special prosecutor Fatou Bensouda started a preliminary examination on the alleged human rights violations in connection with the Duterte administration's war on drugs.

What weakens the argument for the Philippines to stay in the ICC is the fact that the court hardly enjoys the confidence or support of majority of the world's states in its efficacy and necessity.

The International Criminal Court is an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes.

The UN General Assembly convened a conference in Rome in June 1998, with the aim of finalizing the treaty to serve as the ICC's statute. On July 17, 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen.

Following 60 ratifications, the Rome Statute entered into force on July 1, 2002 and the International Criminal Court was formally established.

As of October 2017, 123 states are parties to the statute of the court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa. Burundi was a member state, but withdrew effective October 27, 2017. A further 31 countries have signed but have not ratified the Rome Statute.

Four signatory states — Israel, Sudan, the United States and Russia — have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their signature of the statute.

Forty-one United Nations member states have neither signed nor acceded to the Rome Statute. Some of them, including China and India, are critical of the court. Ukraine, a non-ratifying signatory, accepted the court's jurisdiction for a period starting in 2013.

Our Supreme Court cannot rule on the petition against Philippine withdrawal without taking into account this checkered geography of support for the ICC.

Thatcher's arguments vs the ICC

As important are the arguments laid by former UK prime minister Margaret Thatcher during the discussions of the proposed ICC. Her arguments are contained in her book, Statecraft (Harper-Collins Publishers, London 2002).

Thatcher questioned first Kofi Annan's vision for the court, which she said was more likely to turn into a nightmare.

She enumerated the following objections:

  1. The court will in practice be more likely to be brought into action against the soldiers or statesmen of the generally law-abiding countries, rather than the rogue states which will simply ignore its jurisdiction.
  2. A global judicial institution like the ICC would require a global police force and, at least an embryo global government in order to ensure that its decisions are carried out. The fundamental problem is that there exists no adequate means of coercion to overcome the opposition of sovereign states, let alone of superpower states, to such a court's decisions.
  3. The ICC can only lead to trouble because to whatever extent it is effective it will render the West's capacity to intervene less so. Major international interventions are doomed unless the US is directly or indirectly involved.

Thatcher ended her critique by contending that Britain should have "nothing to do with the International Criminal Court, exert maximum pressure on others to do likewise, and use its full weight to oppose all attempts to curtail sovereign immunity."

The oral arguments on the ICC petition will continue next week with the arguments of the senators and the answer of the solicitor general for the respondents.

Any citizen can petition; the public is not obligated to listen.


  • Opposition senators no-show for own petition on PH withdrawal from ICC, Yen Makabenta, August 30, 2018, The Manila Times

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