International Criminal Court Overview:

The Basics

The International Criminal Court (ICC) is an independent institution located in The Hague, the Netherlands.

The Rome Statute, signed 17 July 1998, created the ICC and established how to govern the Court.

The ICC has been in operation since 1 July 2002.

The ICC tries cases against people accused of genocide, crimes against humanity, war crimes, or crimes of aggression.

Jurisdiction can be complicated in some situations, but generally, the Court may only assert jurisdiction in states that
have signed the Rome Statute. Interestingly, the ICC cannot try cases for crimes committed before a State signed on to
the Statute.

As of 1 July 2012, 121 States signed and ratified the Rome Statute.

The ICC consists of the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

Structure

There are 18 judges in the ICC. The Presidency is comprised of three judges, who are elected from within the 18 judges
in the ICC and who each serve 3-year terms. The Presidency is comprised of The President of the Court, a First Vice-
President, and a Second Vice-President. Once elected, in accordance with the Statute, these judges oversee the overall
management of the ICC, including "judicial/legal functions, administration and external relations."[1]

The Judicial Divisions are the Appeals Division, the Trial Division, and the Pre-Trial Division. The President sits on the
Appeals Division, along with four other judges. The Trial and Pre-Trial Divisions consist of no less than 6 judges each,
though their proceedings consist of three judges. A single Judge may carry out many of the functions of the Pre-Trial
Chamber. The judges are placed in the Divisions based on their qualifications and expertise for a 3-year term, which may
be extended for trials they preside over that continue beyond their term.[2]

The Office of the Prosecutor receives referrals for cases and information on crimes within the Court's jurisdiction from
States, UN Security Council (UNSC), or based on their own initiatives.[3] It then examines what it receives, potentially
conducts investigations, and potentially prosecutes cases before the Court. The Office consists of the Deputy Prosecutor,
the Investigations Division, and the Jurisdiction, Complementarity and Cooperation Division.[4]

The Registry, headed by the Registrar, is responsible for judicial and administrative support of all divisions of the ICC,
specifically in matters of defense, victims and witnesses, outreach, and detention.[5] The Office of Public Counsel for
Victims and the Office of Public Counsel for Defence also technically fall under the Registry, but they essentially function
independently and are semi-autonomous.[6]

Historical Context

Before the ICC, four tribunals in particular showed that there was a need for a permanent international court to serve
the international community. Two of these tribunals took place after World War II: the International Military Tribunal at
Nuremberg (1945-1946) and the International Military Tribunal for the Far East in Tokyo (1946-1948). These tribunals set
out largely to punish Nazi leaders and physicians in Germany, as well as the Japanese war criminals who led their people
to fight with Germany in the Second World War. The astonishment that existed after the horrors of World War II led to
the establishment of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The
Convention defined genocide as a crime under international law and it was under this convention that the International
Law Commission (ILC) was first permitted to explore the possibility of creating an international judicial body for trying
people for crimes of genocide.[7]

The ILC consists of thirty-four members who have a "recognized competence in international law" and are nominated
and elected by the UN General Assembly.[8] While the ILC continued to conduct research and gather information, The
Cold War, starting in the 1950s through the 1980s, caused a decrease in focus and concern for the creation of an
international court. The United States and Russia, as well as their respective allies, developed a growing distrust of one
another and were constantly engaged in a power struggle, rendering the UN essentially inoperative on many fronts.
Consequently, the ILC was not able to make much, if any, progress towards beginning discussions about an international
judicial body with governments of the UN Member States. As the Cold War was ending in 1989, the UN General
Assembly requested that the ILC "resume work on an international criminal court with jurisdiction to include drug
trafficking."[9] This work began to gain momentum again, but in the meantime, the UNSC created the third and fourth
tribunals that further influenced the international community. Those were the International Criminal Tribunal for
Yugoslavia (ICTY), established in 1993, and the International Criminal Tribunal for Rwanda (ICTR) established in 1994.[10]
Though the support for these tribunals was strong, these ad hoc tribunals were, and continue to be, very costly. The ICTY
had a budget of approximately $70 million, while Rwanda's tribunal had an annual budget of approximately $40 million.
These high financial costs made them less appealing to the UN General Assembly and provided further evidence for the
need of an established international court to streamline funds and efforts. It was not until 1994 that the ILC finished
drafting a statute for the ICC and submitted it to the General Assembly. After that, an ad hoc committee met twice in
1995 and created the Preparatory Committee to work towards a "widely acceptable consolidated draft text."[11] From
1996 to 1998, the committee had six plenary sessions in order to debate and negotiate the potential court.[12]

Four major issues arose in the negotiations for creating the ICC. "First, the role of the [United Nations] Security Council,
second, the level of independence granted to the prosecutor, third, the method by which states would accept the
Court's jurisdiction, and fourth, the preconditions that needed to be met in order for the Court to exercise that
jurisdiction."[13] Some States remained uncomfortable with the amount of power that was eventually granted to the
Court, particularly the United States. While the ICC is a fully independent body from the United Nations, the UN Security
Council can delay investigations and prosecutions by passing resolutions supported by at least nine of the UNSC
members, as long as no permanent member of the UNSC vote against the delay resolution.[14] [15] If a permanent
member of the UNSC does not support the resolution, but does not wish to vote against it either, they may abstain from
the vote, therefore not affecting the outcome. This delay that the UNSC can enact by passing a resolution is for a period
of 12 months that can be renewed annually, and could be viewed as a potential stalling tactic. The power that the UNSC
has to delay cases makes the ICC's independence somewhat questionable.

Finally, the Rome Statute was completed on 17 July 1998, creating the ICC and establishing how the Court would be
governed.[16] The ICC has been in operation since 1 July 2002. The four years between the completion of the Statute
and the operationalization of the ICC was due to the delays of countries ratifying the Statute. In order for it to be put
into force, at least 60 governments needed to ratify the Statute, which finally happened on 11 April 2002.[17] During the
months between April and July 2002, a 5-person advance team was put in place to begin the process of setting up the
Court. Over the next year, the Assembly of States Parties elected the judges, prosecutors, and a registrar.[18] The States
also established the first approved budget for the ICC of approximately €53 million euros for the year 2004.[19] By 2011,
the budget nearly doubled to over €103 million.[20]

There is a limited scope as to the types of cases the ICC tries and where the Court may assert jurisdiction. The ICC tries
cases against people accused of genocide, crimes against humanity, war crimes, or crimes of aggression. Jurisdiction can
be complicated in some situations, but generally, the Court may only assert jurisdiction in states that have signed the
Rome Statute. Interestingly, the ICC cannot try cases for crimes committed before a State signed on to the Statute. As of
1 July 2012, 121 countries signed and ratified the Rome Statute.[21]

Process

There are three ways for the ICC to receive a situation to investigate. The first way is that a State Party of the Rome
Statute refers a situation to the Prosecutor. The second way is for the UN Security Council to request an investigation of
a situation in any State that is a member of the UN. Even if the State to be investigated has not ratified the Rome
Statute, they may still be investigated because all member states of the UN are bound by UN resolutions. The third way
is on the Office of the Prosecutor's own initiative. Under this course of action, the Prosecutor must request
authorization to proceed with an investigation from a Pre-Trial Chamber.[22]

Following the initiation of the investigation, a situation is assigned to a Pre-Trial Chamber. The Prosecutor may decide
before or after the initiation of an investigation that there is no basis to proceed. However, if a State or the UNSC has
referred the situation to the Prosecutor, the Pre-Trial Chamber may request that the Prosecutor reconsider their
decision to end the investigation. Additionally, if the Prosecutor decides not to move forward based on a determination
that it would not be in the interest of justice, the Pre-Trial Chamber could choose to review this determination. If the
Pre-Trial Chamber chooses to conduct a review, it has to affirm the determination in order for it to stand.[23]

However, if an investigation proves fruitful, the Prosecutor may apply to the Pre-Trial Chamber for a warrant of arrest or
a summons to appear for the person suspected of commiting a crime or crimes that fall under the scope and jurisdiction
of the ICC. If the Pre-Trial Chamber issues the warrant or summons, it is the hope that the wanted person will be
surrendered to the Court or appear voluntarily, at which point a hearing to confirm the charges is held. Of the ICC's
suspects which there have been warrants issued, three were arrested by their governments and transferred to The
Hauge, while two were arrested by foreign authorities and also transferred to The Hague. Ten of the ICC's suspects
appeared before the Court voluntarily.

Once the charges are confirmed, the case is then assigned to a Trial Chamber. During the trial, the Prosecutor must
prove the defendant guilty beyond a reasonable doubt. The accused can act as his or her own defense or be represented
by counsel. Decisions made by Chambers can be appealed throughout the Pre-Trial and Trial phases, which are reviewed
by the Appeals Chamber.[24] Victims can also participate in the proceedings either directly or through legal
representation. When the proceedings have concluded, the Trial Chamber decides if the accused is to be acquitted or
convicted. If convicted, there will be a sentencing, which can include imprisonment and even reparations to victims.

Investigations and Cases

Since 2004, the Office of the Prosecutor has developed 17 cases, with 30 suspects, out of seven situations that they have
fully investigated. Of these seven situations, Member States (Uganda, the Democratic Republic of the Congo, and the
Central African Republic) referred three, the UNSC referred two (Libya and Darfur, Sudan), the Office of the Prosecutor
initiated one (Kenya), and one state (Cote d'Ivoire) gave jurisdiction to the ICC.[25] Of these 30 suspects,

- 13 remain at large,
- four are awaiting trial,
- charges against another four were not confirmed,
- three are currently on trial,
- two died before they could be brought before the Court,
- two are awaiting a decision of guilty or innocent,
 - one is awaiting their charges to be heard, and
- one was convicted.
- The conviction is discussed further below.

The Office of the Prosecutor also currently has preliminary examinations for Nigeria, Colombia, Afghanistan, Georgia,
Guinea, Honduras, and Korea. The start and progression of these investigations vary, but they range from beginning in
2005 to beginning in 2010 and all are ongoing. Guinea is an example of a case that has resulted in positive
consequences, with Guinea moving forward with its own internal trial. Georgia was particularly pressing, as the
Prosecutor received 3,851 communications from individuals and civil society organizations.[26] The Russian and
Georgian governments have shown some cooperation by participating in meetings with the Office of the Prosecutor and
providing information requested by the Prosecutor. The Office has not been so lucky in conducting its preliminary
examination of Afghanistan, as it has received no responses to its requests for information from the government.

Success

After nearly two years of analysis and investigation, followed by six years of proceedings, the ICC's first case verdict was
handed down on 14 March 2012. Thomas Lubanga Dyilo of the Democratic Republic of Congo was found guilty of
enlisting children under the age of 15, conscripting children under the age of 15, and using children under the age of 15
to participate actively in hostilities.[27] On 17 March 2006, there was a public announcement of the issuance of the
arrest warrant for Lubanga. In this case, the authorities of the State cooperated and transferred Lubanga to The Hague.
Defense counsel was provided to Lubanga because he could not afford to pay for it himself. When there was an issue of
evidence favorable to Lubanga being withheld from the Defense and the Trial Chamber because of confidentiality issues,
the Court followed judicial procedure. The Court then conducted the appeal process during the Trial phase, ensuring
that the trial would not move forward until this issue was resolved. Though these appeals extended the length of the
trial, it ensured that Lubanga's human rights and due process were respected, while still successfully achieving some
kind of justice for Lubanga's victims.

Lubanga was sentenced to 14 years, which would only be eight more years after the conclusion of the trial since
Lubanga was detained in The Hague since 2006. After the proceedings ended, the Trial Chamber issued its first decision
on victims' reparations for harm caused by Lubanga.[28] This decision did not outline what reparations should be made
to the victims, but rather requested reparations proposals from victims to be submitted to the Trust Fund for Victims,
which would then be reviewed by the Chamber. This decision has created some controversy among victims because they
are not sure what to expect or that they will even receive anything for their suffering, particularly since Lubanga was
found to be indigent.

Controversy

The ICC has been a controversial issue since people began talking about its possible existence. Now that it has been an
international judicial entity for 10 years, the consequences seem to be becoming real and some countries continue to
avoid ratifying the Rome Statute. For example, though the United States signed the Statute, they have not ratified it
because it is viewed as giving up an important piece of state sovereignty.

However, it may be the states that have ratified the Statute that should be the most worried about their sovereignty, as
people are beginning to wonder if the investigations are biased, looking at only some parties to a conflict rather than all
of them. Another controversy involves the fact that most of the investigations being conducted are in Africa and the
Middle East. Some people suggest that this implies a bias or unfair focus on those regions and/or the Court taking
advantage of weak states.
Yet, with only one conviction in the 10 years of the ICC's existence, these consequences may seem unreal or unlikely to
many still. With the first conviction coming down, and Lubanga only serving eight more years from when the trial
finished, the consequences for committing these crimes do not seem to be as harsh as some might think they should or
could be for those who are found guilty. Additionally, the amount of time that the investigations and trials take, can
allow the suspects to find ways to remain at large, even after a warrant is issued for their arrest.

Another controversial issue regarding the ICC is the role of the UNSC. The two have signed an agreement that lays out
how the two bodies will cooperate with one another, largely through administrative procedures and information
sharing. However, the UNSC's ability to delay indefinitely any case (as described above) is controversial. Particularly the
permanent members of the UNSC have a great power because they can use their veto power to deny the progression of
a referral to the ICC, even if other members of the UNSC want to pass such a resolution. With the UNSC's two referrals
to the ICC so far, regarding Darfur and Libya, was the Council's motivation pure in achieving justice for the people of
those states or did they have other motivations in seeing these situations investigated and potentially prosecuted by the
ICC?

These issues also raise questions about the Court achieving what organizations like Human Rights Watch (HRW) believe
its mission to be, which they describe as bringing "to trial those most responsible for the gravest crimes representative
of underlying patterns of ICC crimes."[29] HRW criticizes the ICC for not conducting thorough enough investigations to
go up the chain of command to reach the true leaders who are committing heinous crimes against humanity. There are
also criticisms on the way the Court is treating gender, because they are not including rape and sexual violence in the
charges against the accused.

The receptiveness and cooperation of the local populations can be important to the work of the ICC in achieving justice.
However, if the ICC cannot provide appropriate protections for the physical and economic safety of victims, they may be
reluctant to come forward with evidence or to participate in the trial. Victims may therefore never have the opportunity
to see justice happen or to reclaim their lives after the traumas they or their families experienced.

These issues are important and their neglect by the Court has rendered it less successful than many had hoped.
However, its task is highly complex and political, and it would have been unreasonable to expect it to achieve all its aims
without difficulty or controversy. It will be interesting to see how the court addresses these issues in the future, and if it
can be made more effective, more broadly accepted, and more cost-effective.

Withdrawal Procedure: Article 127 of the Roman Statue

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.

Rome Statute of the International Criminal Court

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.
Philippines on Withdrawing from the ICC:

MANILA, Philippines – Malacañang announced Wednesday that the Philippines would withdraw its ratification of the
Rome Statute, the treaty that established the International Criminal Court, which last month launched its crime against
humanity investigation on President Rodrigo Duterte’s war on drugs.

The Palace, through presidential chief legal counsel Salvador Panelo, furnished journalists copies of Duterte’s statement
saying, “I therefore declare and forthwith give notice, as the President of the Republic of the Philippines, that the
Philippines is withdrawing its ratification of the Rome Statute effective immediately.

In the same statement, the chief executive said that it appeared that there was a “concerted effort” between the United
Nations special rapporteurs and the ICC special prosecutor to depict him as a “ruthless and heartless violator of human
rights who allegedly caused thousands of extrajudicial killings.”

Duterte said this was nothing but “baseless, unprecedented and outrageous attacks on my person as against my
administration, engineered by the officials of the United Nations, as well as the attempt by the [ICC] special prosecutor
to place my person within the jurisdiction of the [ICC].”

ICC probe of Duterte war on drugs can’t be stopped by treaty withdrawal.

But while the Duterte administration is in a hurry to get out of the treaty that was ratified via the Philippine Senate’s
concurrence on August 23, 2011, the process of withdrawing takes time.

And even when the Philippines is finally out of the ICC, the statute’s rules mandate the court to still continue hearing the
case that was filed against a state’s citizen.

As simplified by The Netherlands-based international organization Justice Hub, the following are the steps that a state
has to take to withdraw from the treaty based on Article 127 of the Rome Statute:

1. The state will have to write the UN secretary general informing him about the intention to withdraw from the treaty.

2. The state must hand its letter or notification in.

3. After handing the letter, the state must wait for a year for the withdrawal to take effect.

4. After a year, the state will no longer be part of the parties to the treaty and will be out of the ICC. However, the state
still has to pay fees that it may owe and any cases involving the citizens of that state will continue.

The provisions in Article 127 of the statute specifically state that:

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.”

3. “Its (the state’s) 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.”

Senate Minority Leader Franklin Drilon said the Philippines’ withdrawal from the treaty would not have any effect on the
case against Duterte that was filed at the ICC before the move to leave the accord.

He said that as stated in Article 127, even if the withdrawal from the treaty takes effect, this does not tie ICC’s hands
from continuing its inquiry on Duterte’s anti-narcotics campaign.

“That is the rule. The ruling as to the continuation of the investigation will be ruled upon by the court itself. I’m sure the
government will assert that it is no longer bound by the statutes. That is a legal issue which will now be resolved by the
court,” said Drilon.

Burundi withdrew but ICC probe continued.

What happened to Burundi, the first nation to leave the ICC, is a case in point.

Despite the African country’s withdrawal from the treaty that took effect on October 27, 2017, the ICC maintained that
it would still “exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Burundi or by
its nationals from 1 December 2004 to 26 October 2017.”

The alleged crimes that the ICC was referring to allegedly involved state agents and groups implementing state policies
with members of the Imbonerakure through purportedly launching a widespread and systematic attack against the
Burundian civilian population.

The attack allegedly targeted those who opposed or were perceived to oppose the ruling party after the announcement,
in April 2015, that President Pierre Nkurunziza was going to run for a third term in office.

The following crimes against humanity were allegedly committed both in and outside of Burundi by Burundian nationals,
between 26 April 2015 and 26 October 2017:

-murder and attempted murder

-imprisonment or severe deprivation of liberty

-torture

-rape

-enforced disappearance

-persecution

On October 25 2017, two days before Burundi’s withdrawal from the treaty took effect, the ICC gave its prosecutors the
green light to investigate alleged war crimes committed by the Burundi government against the country’s political
opposition between April 2015 and October 2017.

In a statement, ICC judges said there was “a reasonable basis to proceed with an investigation in relation to crimes
against humanity,” that included murder, rape and torture that led to the deaths of more than 1,000 people and
prompted 400,000 to flee the country.
Only the state can withdraw from the treaty

Also, according to Drilon, former secretary of the Department of Justice, while the Philippines was able to accede to the
Rome Statute via the Senate’s concurrence, the upper chamber has no right to interfere with the administration’s move
to withdraw from the treaty.

As stated in the treaty’s rules, only a state — not a parliament or a political party — can withdraw from the ICC.

Doctrine of transformation

Meanwhile, human rights lawyer Rommel Bagares dismissed Duterte’s claim that the Rome Statute is ineffective and
unenforceable because it was not published in a newspaper of general circulation as provided for in the Civil Code.

“He’s a lawyer so I suppose he’s heard of the doctrine of transformation — a treaty becomes effective and part of
Philippine law upon concurrence by the Senate, under the treaty clause of the 1987 Constitution,” Bagares said.

“Moreover, we already have its implementing legislation — the IHL (International Humanitarian Law) Act, or R.A. 9851,”
he said.

Also, Bagares said Article 14 of the Civil Code itself states that, “Penal laws and those of public security and safety shall
be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law
and to treaty stipulations.”

“So even the Civil Code recognizes the binding nature of treaties pertaining to penal laws (as the Rome Statute deals
with International Criminal Law) to which we are a party.”

Duterte’s move ‘utterly self-serving’

At the House of Representatives, lawmakers critical of the administration claimed that Duterte’s alleged fear of the ICC
probe made him decide for the Philippines to withdraw from the Rome Statute.

ACT partylist Rep. Antonio Tinio said the President’s announcement was “utterly self-serving and driven by sheer panic
at the prospect of a trial before the International Criminal Court for crimes against humanity related to his murderous
war on drugs.”

“Saving his own skin has taken precedence over the long-term international commitment made by the Philippine State
to human rights and against impunity when it became a party to the Rome Statute,” he said.

However, Tinio, also citing Article 127 of the statute, said that “whether he (Duterte) likes it or not, he will be held
accountable.”

Bayan Muna Rep. Carlos Zarate warned that Duterte’s withdrawal from the accord would be a “grave setback to human
rights and accountability.”

“President Duterte’s withdrawal from the Rome statute is intended to escape accountability by present and even future
officials for crimes committed against the people and humanity. This is ominous of an even worse human rights situation
in the country,” he said.

“For all the bluster of the present administration in the manner it launched its bloody wars, this withdrawal also means
that it is gravely petrified of the long arm of the law and accountability,” he added.
‘Afraid to face scrutiny’

Akbayan Rep. Tom Villarin said the President “is afraid to face scrutiny by the international criminal court for which he
earlier bragged to face head on.”

“If these are baseless, unprecedented and outrageous attacks, then the right tact is to face it as a statesman with head
hold high and without fear if indeed no misdeed happened,” he said.

Ifugao Rep. Teddy Baguilat Jr. said Duterte had no reason to fear about being investigated by the ICC if he was convinced
that there were no human rights violations committed in the implementation of his administration’a war on drugs.

Gascon says Duterte move a ‘reversal, encouraging impunity to continue’

At the Commission on Human Rights (CHR), the agency’s chairman Jose Luis Martin “Chito” Gascon said the “decision to
withdraw from the ICC is an unfortunate move that constitutes a significant setback to the decades-long global effort of
universal jurisdiction to ensure accountability for the most serious violations of human rights law.

According to the CHR chief, the Philippines “has historically been at the forefront of advancing international justice” and
Duterte’s move “constitutes a reversal that will be viewed as encouraging impunity to continue.”

“The government must show good faith by fully cooperating with ICC processes including the current preliminary
examination, which can not be terminated by this withdrawal,” said Gascon.

“The government is grossly mistaken in believing that the ICC does not have jurisdiction over events in this country.
What it must do is to show that it is willing and able to bring all perpetrators of human rights violations to justice,” he
added.

Key facts on PHL’s withdrawal from the International Criminal Court

Published March 25, 2018 1:54pm

By RICHARD JAVAD HEYDARIAN

In recent weeks, the International Criminal Court (ICC) has captured the imagination of the Filipino people. A seemingly
obscure, but highly relevant, international body has all of a sudden dominated public discussion, provoking a ferocious
debate among folks from across the political spectrum.

The ICC was catapulted to the headlines, when it was revealed, last month, that the institution’s chief prosecutor Fatou
Bensouda has opened a preliminary examination against the Philippines. This is the first time in history that an
incumbent Southeast Asian government has faced the prospect of indictment by the ICC. Weeks later, President Rodrigo
Duterte acted upon his initial threat to unilaterally nullify the country’s ratification of the Rome Statute, which
undergirds our years-long membership of the ICC. He also called upon other countries to exit the ICC, yet so far no
country has followed through.

In 2011, the Philippine Senate ratified the Rome Statute, effectively placing the country under the ICC’s jurisdiction. And
the details of which are actually accessible on the official gazette of the Republic of the Philippines.

So what is at stake here, why such a commotion over the Philippines’ withdrawal? What are the implications of it? Does
this make the country more isolated or reaffirms its sovereignty? Is this good for the country, at all? The following are
some of key issues to keep in mind.
First and foremost, the ICC is a body found under the auspices of the United Nations (UN), with the express purpose of
avoiding the horrific mass atrocities, which bedeviled sub-Saharan Africa (think of the Rwanda genocide) and the Balkans
(the violent dissolution of former Yugoslavia) and, more broadly, shocked the world into action.

After intensive global discussions in the UN at the turn of the century, the ICC was established at The Hague, in
Netherlands, which also houses other major international arbitration bodies such as The Permanent Court of Arbitration
(PCA). The goal of the ICC is to discourage or, in an event of failure of deterrence, ensure accountability and justice when
mass atrocities occur, particularly genocide, crimes against humanity, and war crimes.

Second, the location doesn’t have any political implication. The location of the court, which was approved by members
of the UN, is partly reflection of the fact that the Netherlands has been the bedrock of international law, with no less
than the 17th century Dutch jurist Hugo Grotius, who is known as one of the fathers of modern international law, hailing
from that country.

Yet, the location of the court by no means suggest that the Dutch government or the European Union carries any any
influence over how these highly-independent bodies are run. In fact, in 2013, for instance, the PCA ruled in favor of
Mauritius, an African country, against the United Kingdom, a European country (and still EU member, but likely not for
long) over a territorial dispute over the Chagos Archipelago in the Indian Ocean.

It’s true that superpowers such as Russia, China, and the United States haven’t ratified (via their parliaments/congress)
the Rome Statute or didn’t even bother to sign (via executive branch) it to begin with. And they have been condemned
accordingly for avoiding accountability for their actions, including military interventions abroad.

Yet, more than 100 countries, including much of the developed world and most prosperous Asian countries such as
Japan and South Korea, have ratified the Rome Statute, thus placing themselves fully under the ICC’s jurisdiction. In
short, the ICC continues to enjoy the support and confidence of the world’s most prosperous nations.

Third, the ICC has just opened ‘preliminary examination’ against the Philippines’ authorities involved in the drug war,
specifically the accusation of ‘crimes against humanity’ in light of alleged extrajudicial killings under Duterte’s drug war.

Crimes against humanity charges are generally described as “a deliberate act, typically as part of a systematic campaign,
that causes human suffering or death on a large scale.” Article VII of the Rome Statute defines it as “acts when
committed as part of a widespread or systematic attack directed against any civilian population.”

Preliminary examination, meanwhile, only means that the ICC is currently examining the veracity of communications
(complaints) and reports of alleged mass atrocities under Duterte’s drug war. It’s far from clear whether the ICC will
launch an actual investigation, as a potential prelude to indictments of specific leaders, anytime soon. In certain cases, it
takes only few weeks or months (e.g., Sudan, Libya) before the ICC moves from the stage of examination to actual
investigation, while in other cases it might take years (i.e., Ivory Coast).

Actual indictments against officials may take a long time before they take effect, with so far mostly African leaders
ending up at the receiving end of ICC’s hammer of justice. The international body is yet to indict a single major Western
or Asian leader on charges of mass atrocities.

Fourth, withdrawal from the ICC won’t stop the ongoing examination. It takes one year before the Philippines’
withdrawal takes effect, making the country only the second nation, after Burundi, to first sign, then ratify, just to later
withdraw from the ICC when respective leaders are subjected to examination and potential investigation. Similar
attempts by certain African countries were shut down by either their Supreme Court (South Africa) or by a newly elected
government (Gambia), which were concerned by further international isolation.
Moreover, according to Article 127 of the Rome Statute, any withdrawal by a state will not render it “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.” The Philippines has been under ICC’s investigation since 2011 and, per
rule, until March 2019.

Fifth, the best way forward for the Duterte administration would have been to challenge, in an event of actual
investigation, the jurisdiction of the ICC by citing the ‘principle of complementarity’, whereby the international body
can’t step in unless there is sufficient evidence to show that local courts and institutions are either unwilling or incapable
of dispensing justice vis-à-vis mass atrocities. This is far from easy to establish, so there was a room for compromise and
de-escalation.

Specifically, the Duterte administration could have simply assured the ICC of the viability of domestic judicial institutions
by conducting thorough investigation and, if found guilty, charge perpetrators with appropriate penalties. Above all, if
the government is truly innocent, then it shouldn’t worry about either domestic or international investigations.
Smearing international bodies based on dubious arguments, which have been roundly debunked by local and
international experts, will only worsen the situation and risk isolating the Philippines in the international community. If
anything, it may only embolden the ICC to up the ante. This isn’t about the interest of our leaders, but our national
interest.

ICC Statement on The Philippines’ notice of withdrawal: State participation in Rome Statute system essential to
international rule of law

Yesterday evening, 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 authorising 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 centre, 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, wilful 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, authorisation 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.

Preliminary examination

The Philippines

Ongoing

Focus: Alleged crimes committed since at least 1 July 2016, in the context of the "war on drugs" campaign.

Jurisdiction – General status

The Philippines deposited its instrument of ratification of the Rome Statute on 30 August 2011. The ICC may therefore
exercise its jurisdiction over Rome Statute crimes committed on the territory of the Philippines or by its nationals from 1
November 2011onwards.

Procedural history and focus of the preliminary examination

The preliminary examination of the situation in the Philippines was announced 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.