Philippine ICC defense gasping for substance?

THE APPEALS chamber of the International Criminal Court (ICC) is set to rule on the appeal interposed by the Philippines against the decision of its pre-trial chamber authorizing the resumption of the investigation into the Duterte drug war.

This is after the Philippines submitted a reply to the ICC prosecutor’s response to the appeal brief.

The reply had to be confined principally to the narrow issue of whether the State has a duty to cooperate with the prosecutor’s investigation when it is being conducted after that State had already withdrawn from the treaty.

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To recall, the Philippines became a party to the treaty creating the ICC ( the Rome Statute) in November 2011.

I n February 2018, f ormer ICC prosecutor Fatou Bensouda announced that she had commenced a preliminary examination of the situation in the Philippines.

On March 17, 2018, during Duterte’s incumbency, the Philippines deposited a written notification of withdrawal from the Rome Statute. The treaty itself provides that the withdrawal becomes effective one year after it is made.

It was in May 2021, or two years after the withdrawal became effective, that the prosecutor filed a written request to open an investigation into the war on drugs.

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Article 127, Section 2 of the Rome Statute provides that “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.”

It further provides that “the 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…”

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The Philippines now contends that Bensouda’s announcement of commencing a preliminary examination did not trigger the application of Article 127, Section 2 because “the terms ‘opening’ and ‘commencement’ are strictly applied to formal investigations.”

States whose withdrawal is effected prior to the opening of such a formal investigation have no obligation to cooperate.

It is further argued that the prosecution has no duty to announce the opening of a preliminary examination. An announcement is nothing more than “performative speech,” which is a “warning shot as and when the Prosecution deems it appropriate or beneficial to advance its own internal policies.”

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Will that restrictive view derail the prosecutor’s investigation?

State cooperation does not affect the jurisdiction of the ICC to try and decide possible cases against those who will be charged with crimes against humanity in the context of the war on drugs.

As pointed out by the prosecutor, it is not unusual for states to eschew cooperation. Yet this has not stopped the ICC from trying those cases.

The formulation is very simple: the pre- trial chamber found that the ICC has jurisdiction because the Philippines was a State party when the alleged crimes for which the investigation was authorized were committed.

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The investigation is ongoing because the appeals chamber of the ICC decided not to grant the Philippines’ request for its suspension.

The arguments against it are getting thinner by the day. We are looking at the likelihood of government finally confronting the question of whether to be intransigent and withhold cooperation./