ON 19 March 2018, the International Criminal Court (“ICC” or “Court”) was officially notified by the United Nations that the Republic of the Philippines had on 17 March 2018 deposited a written notification of withdrawal from the Rome Statute, the Court’s founding treaty, with the United Nations Secretary-General as the depositary of the Statute. The Court regrets this development and encourages the Philippines to remain part of the ICC family.
Withdrawing from the Rome Statute is a sovereign decision, which is subject to the provisions of Article 127 of that Statute. A withdrawal becomes effective one year after the deposit of notice of withdrawal to the United Nations Secretary-General. A withdrawal has no impact on on-going proceedings or any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective; nor on the status of any judge already serving at the Court.
As indicated recently in the ICC Pre-trial Chamber decision authorizing the opening of an investigation in relation to the situation in Burundi, the ICC retains its jurisdiction over crimes committed during the time in which the State was party to the Statute and may exercise this jurisdiction over these crimes even after the withdrawal becomes effective.
The Court wishes to reaffirm that the participation of States in the Rome Statute and their continued support for the ICC in the discharge of its independent and impartial mandate is essential to global efforts to ensure accountability and strengthen the international rule of law.
The Rome Statute system, with the ICC at its center, has judicially addressed and galvanised national and international efforts to address the most serious crimes under international law such as the use of child soldiers, sexual violence in conflict, torture, willful killing and the destruction of cultural heritage.
The Court remains fully committed to its independent mandate to help end impunity in a complementary manner with States, and in so doing, contribute to the prevention of future atrocities. States’ participation in the Rome Statute ought not only be maintained and reinforced, but enlarged.
Background information on the Preliminary Examination of the situation in the Philippines
The Republic of the Philippines ratified the Rome Statute on 30 August 2011 and the Statute entered into force from 1 November 2011.
The preliminary examination of the situation in the Philippines was announced by the Office of the Prosecutor of the ICC on 8 February 2018. It will analyse crimes allegedly committed in this State Party since at least 1 July 2016, in the context of the “war on drugs” campaign launched by the Government of the Philippines. Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.
A preliminary examination is not an investigation. It is an initial step to determine whether there is a reasonable basis to proceed with an investigation. Specifically, under article 53(1) of the Rome Statute, the Prosecutor, must consider issues of jurisdiction, admissibility and the interests of justice in making this determination.
Under the Rome Statute, national jurisdictions have the primary responsibility to investigate and prosecute those responsible for international crimes.
In conformity with the complementarity principle, which is a cornerstone of the Rome Statute legal system, and within the framework of each preliminary examination, the Office of the Prosecutor will engage with the national authorities concerned with a view to discussing and assessing any relevant investigation and prosecution at the national level.
In the independent and impartial exercise of its mandate, the Office of the Prosecutor will also give consideration to all submissions and views conveyed to it during the course of each preliminary examination, strictly guided by the requirements of the Rome Statute.
Should, at the conclusion of the preliminary examination process, the Prosecutor decide to proceed with an investigation, authorization from a Pre-Trial Chamber of the Court would be required. The Court’s judges would then make an independent assessment as to whether the statutory criteria for the opening of an investigation are met.