MANILA, Philippines – The US bill seeking to sanction the International Criminal Court — blocked by US Democrat senators, for now, as its language is “too broad” — will have a chilling effect on the Philippine investigation covering Rodrigo Duterte’s drug war and the Davao Death Squad.
Experts are in agreement that the specific application of the bill, if it becomes law, will largely depend on US President Donald Trump. The United States is not a member of the ICC.
“But what concerns me more is even based on the definition, even if they don’t apply it, it still sends a chilling effect to all human rights organizations in the Philippines,” Dino de Leon, director at Human Rights and People Empowerment Center and lawyer of former senator Leila de Lima, said at a briefing late Tuesday night, January 28, before the Senate put the bill to a vote in Washington D.C.
The US Senate foreign relations committee voted 54-45 in favor of the bill, short of the 60 affirmative votes needed to elevate it to a Senate vote. Democrats said they could not agree on a compromise version with the Republicans.
The US House of Representatives’ approved bill has sweeping language, such as sanctioning ICC officials or anyone who aid them “in any attempt to investigate, arrest, detain, or prosecute any protected person.”
Although the premise of the bill is to protect Israel Prime Minister Benjamin Netanyahu, whose arrest the ICC had ordered over the war in Gaza, the bill defines a protected person as “any foreign person that is a citizen or lawful resident of an ally of the United States that has not consented to International Criminal Court jurisdiction or is not a state party to the Rome Statute of the International Criminal Court.”
The Philippines, being a major non-NATO ally and a non-member of the ICC, falls within the bill’s definition of a protected person.
“In general, civil society’s basic interaction with the Court — providing evidence, providing documentation — can be construed in the sanctions law as providing support to a sanctioned person,” Adam Keith, senior director of accountability at Human Rights First, said at the same briefing.
Travel, business and even funding sanctions
What can the sanctions look like?
Keith said that a US-based person or organization who helps the ICC “will face a particular degree of risk,” perhaps similar to the sanctioned person themselves: prohibition on travel and transacting business, even freezing of properties.
What about a Filipino person or organization who helps the ICC investigation?
“They have a different and even more complex set of questions to study and ask themselves to understand their risk, and just the fact that this risk is out there, that it’s so incredibly complex and hard to pin down, is what’s going to have a chilling effect,” said Keith.
De Leon said that concretely, the sanctions could come in the form of US-sourced fund cuts for Philippine-based organizations.
“Human rights organizations in the Philippines continue to fight even without resources, and the Dutertes are very powerful, the last thing they need right now is a threat of sanctions,” said De Leon.
The threat of sanctions would also result in a “substantial change in behavior” even from justice officials in the Philippines, said De Leon.
De Leon said that after countries such as the US threatened travel bans on people it perceived to be persecuting De Lima, “the behavior of everyone in the courtroom changed” positively for his client.
If change in behavior were the issue, it would embolden perpetrators to continue to act with impunity, said Kyaw Win, executive director of the Burma Human Rights Network. Myanmar and the Philippines are among the 17 countries with ongoing ICC investigations.
“Any obstacle to proper judicial system or anything that is related to justice for Burma will only give them more confidence to commit those crimes,” said Kyaw Win.
Reuters has reported that even administrative tasks at the ICC have now been impacted — salaries paid in advance, and data being backed up should Microsoft terminate its partnership with the court.
Effect on Philippine investigation, enforcement
Another problem for the Philippines is how the sanctions bill would affect the dispute over the ICC’s jurisdiction.
Duterte withdrew the country from the ICC after the prosecutor opened the preliminary examination. The ICC has time and again ruled that the Rome Statute preserves the authority of the court in that event. But during Duterte’s presidency, the Philippine government used that argument to block the investigation and even nearly won a narrow 3-2 vote in 2023.
“There’s no question that the alleged crimes that happened in the Philippines while a member of the ICC were within the court’s jurisdiction. But the way that this legislation is written, it treats the investigation of those crimes and the Filipino perpetrators of those crimes as unacceptable to the United States, on the same grounds as investigating a US official might be. That seems legally unfounded, but that’s how the legislation appears to be written,” said Keith.
President Ferdinand Marcos Jr. has neither expressed any intent to rejoin the ICC nor declared explicit cooperation with the Court’s investigation. But his latest position was to support the ICC in case the warrant coming from it is coursed through the Interpol, which the Philippines and US are members of.
How the Philippine government will respond to the sanctions bill will be “decided at some point in time” in a manner “not only good for us but for us being a good member of the international community,” Philippine ambassador to the United States Jose Manuel Romualdez said in a Rappler Talk interview on Wednesday, January 29.
“There is a very strong push from many sectors of society to be members again of ICC, for us to go back. There’s a big debate right now, we don’t know where that is right now,” Romualdez said.
“The only thing I can say is, President Marcos has made it very clear that we have our own justice system, but at the same time we also would like to work with the international legal system, we are part and parcel of the whole global community and we cannot isolate ourselves completely,” said Romualdez. – with reports from Bea Cupin, Reuters/Rappler.com