Supreme Court Senior Associate Justice Antonio Carpio warned that the Philippines would be giving up a “very strong” legal deterrent against a possible China invasion of the West Philippine Sea if it withdrew from the International Criminal Court (ICC).
At the last round of oral arguments on Tuesday, Carpio listed the implications of President Rodrigo Duterte’s order in March to pull out from the international treaty creating the ICC on the maritime dispute with China.
Carpio told Solicitor General Jose Calida in open court that the Philippines could sue China’s leaders, led by President Xi Jinping, at the ICC for alleged crimes against humanity should China invade Philippine-occupied Pag-asa Island or Panatag (Scarborough) Shoal.
Keep hands off
He said such an action was tantamount to the crime of aggression, which, under the Rome Statute, fell under crimes against humanity.
“In withdrawing from the Rome Statute, we will be giving up this very strong legal deterrent,” Carpio told Calida.
“We cannot sue Xi Jinping [before the ICC] if he invades Pag-asa or if he builds a military base on Scarborough Shoal” if the Philippines withdrew from the ICC, he added.
Calida replied he was not ready to cite other international tribunals where the Philippines could take legal action under Carpio’s scenario.
In his opening statement, Calida told the justices to keep their hands off the President’s decision to pull out from the ICC claiming the issue “involved a political question and thus not subject to judicial review.”
He added that the Constitution did not explicitly state that the Senate had to concur with the President’s withdrawal from an international treaty.
No violation
“The President did not violate the Constitution,” Calida said.
“What he did was to exercise his constitutional prerogative as the chief architect of the country’s foreign policy,” Calida insisted.
Opposition senators and human rights advocates had questioned the constitutionality of the President’s order to withdraw from the Rome Statute since he did not get the Senate’s approval.
Mr. Duterte gave the order in March after the ICC prosecutor began a preliminary probe into a complaint accusing him and 11 of his officials of committing crimes against humanity for the thousands of deaths in the President’s war on drugs.