On March 14, the president of the Philippines Duterte announced the intention to withdraw his country from the jurisdiction of the International Criminal Court (ICC). This is the latest episode of what seems to be a growing trend of detachment by nation states from the ICC, the international court dealing with crimina iuris gentium. The common argument is that the ICC has become another political tool of the “West.” The question remains whether such allegations are true, and if so, whether they can constitute a legitimate ground to leave the Rome Statute.

The Philippines’ withdrawal from the ICC

Let us begin with the basics. The ICC, which entered into force in July 2002, was created as a permanent international court that could prosecute individuals (and not states) for the gravest international crimes – crimes of aggression, war crimes, crimes against humanity and genocide. However, the jurisdiction of the court is not universal, meaning it does not have the power to put under trial any individual whenever it deems appropriate.

The ICC is bound to the principle of complementarity, that is, it can exercise its jurisdiction only in situations in which national judicial systems are either unable or unwilling to intervene themselves. Moreover, because it was created by a multilateral treaty, the court’s jurisdiction applies only to the states that have ratified it. This means two things. First, in order to be prosecuted, a crime has to be committed either on the territory of a state party or by a citizen of a state party. Second, a country can decide to avoid ICC jurisdiction simply by not signing, or withdrawing from, the treaty.

This is precisely the path that Rodrigo Duterte decided to take following the ICC decision to open a preliminary examination over allegations of crimes against humanity committed in the context of the “war on drugs” campaign launched by the Government of the Philippines , which has reportedly killed over 8000 people[1]. Duterte, president of the Philippines since 2016, has justified his decision to withdraw from the Rome Statute by saying that the ICC is nothing but a “political tool” used for “baseless, unprecedented and outrageous attacks” on his person [2].

On a legal level, the Philippines’ main argument is that the ICC has acted too soon, violating the sovereignty of the Philippines and not respecting the principle of complementarity with the national courts, which are “functioning” and “willing” to investigate on the matter [3]. However, such justification is poor. As clarified by the ICC’s statement responding to Duterte’s decision, the process of preliminary examination is in full conformity with the principle of complementarity, since it will “engage with national authorities concerned with a view to discussing and assessing any relevant investigation and prosecution at the national level” [4].

The potential withdrawal of the Philippines from the Rome Statute – which is to become effective one year after the formal announcement, on 17 March 2019 – would not prevent the ICC from eventually prosecuting those responsible of crimes against humanity in the context of the “war on drugs,” Duterte included. This is because the ICC will retain jurisdiction over crimes committed during the time in which the Philippines were party to the Statute (Article 127 of the Rome Statute). Nonetheless, what is worrisome is Duterte’s allegations that the ICC would be used by the “West” as a political tool. Accusations of this kind, which in all likelihood will not be the last, are certainly not the first. In the last two years, a growing number of countries has used this argument to get rid of the “constraints” posed by the ICC.

The precedents: Burundi, South Africa, the Gambia and Russia

The first countries to formally ask to leave, in October 2016, were Burundi, South Africa and the Gambia. In the end, only Burundi officially withdrew from the Rome Statute in October 2017. The Gambia changed its position when a new president came into power, whereas South Africa’s government was forced to revoke its request after a South African High Court declared it unconstitutional [5]. However, these attempts to withdraw – and threats to do so, especially by Kenya and Uganda – signal Africa’s strong dissatisfaction with the work of the ICC, accused of disproportionally targeting countries of the African Continent. Many African states see the ICC as a “weapon used by the west to enslave other states” [6].

At the end of 2016, Russia also decided to distance itself from the ICC. Contrary to its “predecessors,” Russia was never fully under the jurisdiction of the court, given that it had signed but never ratified the Rome Statute. However, the decision is crucial both for its political weight and because, as a signatory party, Russian nationals were still bound to act in ways that did not defeat “the object and purpose” of the treaty (Art. 18, Vienna Convention on the Law of Treaties). The justification provided by the Russian foreign ministry is very similar to that of African countries: the work of the ICC has been “one-sided and inefficient”[7].

As in the case of the Philippines, such arguments can be read as an attempt to protect authoritarian presidents, and as a pretext for increasingly authoritarian countries to escape from the jurisdiction of an international court. While it is true that crimes committed in African countries represent the vast majority of cases currently standing before the court (9 out of 10 cases [8]), the link between the withdrawals and the ICC decision to intervene in their national matters is evident. Although withdrawing from the ICC does not prevent punishments for past misconduct, it does impact the possibility for future wrongdoings.

Burundi announced its withdrawal a few months after the court had opened a preliminary examination into possible crimes against humanity occurred when President Nkurunziza ran for a third term in office, in 2015. Former Gambian President Jammeh was concerned that a similar situation in The Gambia could be subjected to an ICC preliminary investigation [9]. South Africa’s decision was linked to the ICC’s request to arrest, on genocide charges, Sudan’s President al-Bashir while he was in South African territory. As for Russia, its decision to withdraw came just a few days after the ICC issued a report saying that Moscow’s invasion of Crimea amounted to a state of occupation of Ukrainian territory [10].

A legitimate trend?

This is not to say that all critics to the ICC are baseless. The fact that states must submit to the jurisdiction of an international court when a good number of global and regional powers do not is controversial to say the least. Countries such as China, Turkey, Pakistan and India have never been part to the Rome Statute. The USA, which has never ratified it, initially signed the treaty under President Clinton, only to revoke the signature under President Bush in 2002. As mentioned above, Russia did the same in 2016. Another manifestation of such blatant contradiction is that the UN Security Council has the authority to refer cases of international crimes to the ICC, but three out of five Permanent Members – the US, China and Russia – have no obligation towards the court. The fact that P5 nationals are exempt from a process that their countries deem indispensable for the stability of the international community is not only controversial, but also undermines the legitimacy of the ICC.

It may also be possible to argue that there’s a western bias in the set of values enshrined in the Rome Statute. After all, the commitment towards a set of universal rights and duties originally stems from liberal Western values, and Western powers undeniably had a major role in shaping the international system as it is today. However, it is unfair to argue that the ICC is merely a political tool of the West. The court has opened preliminary examinations of war crimes committed by UK nationals in the Iraqi War, as well as by US nationals in Afghanistan (which is party to the Rome Statute).

In any case, both the contradictions in membership to, and the presence of a bias towards western values in the Rome Statute should not become an excuse to abandon the commitment towards a regime of universal justice. In this regard, there is no reason to be excessively concerned. As of March 2018, the ICC counts 123 states parties and another 31 have signed the Rome Statute. Burundi was the first country to withdraw; the Philippines would eventually be the second. However, the example first set by the African countries has certainly eroded the authority of the ICC.

If the trend is to expand on a global scale, as the Russian and most importantly the Philippines example seem to suggest, its potential consequences must not be underestimated. The ICC is the only permanent international tribunal having jurisdiction on the most serious international crimes, and its role is essential to global efforts to strengthen universal justice. At present, the alternatives do not provide the same guarantees: ad hoc tribunals are only created in the most serious situations of conflict, and regional tribunals do not necessarily have jurisdiction over the same crimes. In the case of Africa, for instance, the African Court on Human and Peoples’ Rights does not have temporal, personal and subject-matter jurisdiction over genocide, war crimes or crimes against humanity  [11].

In other words, the ICC is the only global institution capable of holding accountable the perpetrators of grave violations of human rights, and as such is essential to human development. Therefore, criticisms towards the ICC should be openly debated to set the ground for future improvements, and not be used as a justification to withdraw from the Rome Statute, which would unquestionably represents a step back in the pursuit of universal justice.

Article written by Federico MASCOLO

picture copyright : https://www.icc-cpi.int/Pages/item.aspx?name=pr1371

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References

[1] ICC, “ICC Statement on The Philippines’ notice of withdrawal: State participation in Rome Statute system essential to international rule of law”, 20 March 2018, https://www.icc-cpi.int/Pages/item.aspx?name=pr1371

[2] Hannah Ellis-Petersen, “Rodrigo Duterte to pull Philippines out of international criminal court,” The Guardian, 14 March 2018, https://www.theguardian.com/world/2018/mar/14/rodrigo-duterte-to-pull-philippines-out-of-international-criminal-court-icc

[3] Hannah Ellis-Petersen, “ICC launches crimes against humanity inquiry into Duterte’s war on drugs,” The Guardian, 8 February 2018, https://www.theguardian.com/world/2018/feb/08/icc-claims-crimes-against-humanity-duterte-philippines

[4] ICC, “ICC Statement on The Philippines’ notice of withdrawal”

[5] Norimitsu Onishi, “South Africa Reverses Withdrawal From International Criminal Court”,New York Times, 8 March 2017, https://www.nytimes.com/2017/03/08/world/africa/south-africa-icc-withdrawal.html

[6] Agence France-Presse, “Burundi becomes first nation to leave international criminal court,” The Guardian,28 October 2017, https://www.theguardian.com/law/2017/oct/28/burundi-becomes-first-nation-to-leave-international-criminal-court

[7]Owen Bowcottand Shaun Walker, “Russia withdraws signature from international criminal court statute,” The Guardian, 16 November 2016, https://www.theguardian.com/world/2016/nov/16/russia-withdraws-signature-from-international-criminal-court-statute

[8] Franck Kuwonu, “ICC: Beyond the threats of withdrawal,” in African Renewal, May-July 2017,  http://www.un.org/africarenewal/magazine/may-july-2017/icc-beyond-threats-withdrawal

[9] Manisuli Ssenyonjo, “State Withdrawal Notifications From The Rome Statute Of The International Criminal Court: South Africa, Burundi And The Gambia,” in Criminal Law Forum, June 2017, DOI 10.1007/s10609-017-9321-z

[10] Robbie Gramer, “Why Russia Just Withdrew from the ICC”, Foreign Policy, 16 November 2016, http://foreignpolicy.com/2016/11/16/why-russia-just-withdrew-from-icc-putin-treaty-ukraine-law/

[11] Ssenyonjo, “State Withdrawal Notifications From The Rome Statute Of The International Criminal Court”