Potential Legal Challenges to President Duterte's Decision to Withdraw the Philippines from the Rome Statute

Abstract

On 17 March 2018, the Philippines withdrew from the Rome Statute, following the directive of President Rodrigo Duterte. The Philippines’ exit from the treaty creating the International Criminal Court (ICC) came in the wake of Prosecutor Fatou Bensouda’s decision to open a preliminary examination into President Duterte’s “war on drugs,” due to “reported incidents involv[ing] extra-judicial killings in the course of police anti-drug operations” which may constitute crimes within the jurisdiction of the ICC. Before delving into the impact, consequences, or effects of the Philippines’ departure from the ICC regime, one threshold issue needs to be addressed first: whether President Duterte’s decision passes legal muster to begin with. If the decision to withdraw the Philippines from the Rome Statute was vitiated by legal defects under international and/or municipal law, all propositions about how the ICC should henceforth proceed vis-a-vis the Philippines could potentially be rendered moot. Before embarking on any further inquiries, therefore, a conversation on this matter should first be had. To move this conversation forward, I argue in this paper that there are substantial issues that can be raised concerning President Duterte’s decision to withdraw the Philippines from the Rome Statute. Drawing from municipal and international law and jurisprudence, I raise two grounds to support the proposition that President Duterte’s decision is open to legal challenge: first, the decision, made unilaterally by President Duterte without securing consent from, or even giving notice to, the Senate (which concurred in the Rome Statute’s ratification) indicate a potential violation of the Philippine Constitution; second, the terms of his decision and the stated justifications on which it was predicated indicate potential violations of international treaty law. Either or both of these grounds can possibly render his decision legally defective.