ICC’s reaction

The United Nations has already notified the International Criminal Court (ICC) that the Philippines has “deposited” a written notification of its withdrawal from the Rome Statute, the treaty that mandated the formation of the said court. The notification was given to the UN Secretary General because because the UN is the “depositary” of the Statute.

I read the ICC press statement posted on its website www.icc-cpi.int and found some interesting information there. President Duterte announced the intent to withdraw from the Rome Statute days ago following the ICC’s move to look into the complaint filed against him for the killing of thousands of suspected drug users and drug peddlers in his war against illegal drugs.

As expected, the ICC reacted to the Philippines’ move by citing pertinent provisions of the Rome Statute. Two points: one, the withdrawal “has no impact on ongoing proceedings or any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective” and, two, the withdrawal “won’t affect the status of any judge already serving in the court.”

The withdrawal will take effect a year after the notice of withdrawal was deposited with the UN Secretary General, which in this case was March 17, 2018. But President Duterte will still be subjected to the ICC process because the Office of the Prosecutor of the ICC announced that a “preliminary examination” on his case has been opened on Feb. 8, 2018 yet. What should interest us is the ICC stand that it may retain jurisdiction over the case even after the withdrawal becomes effective in March next year.

But the ICC clarified that what it is currently conducting relative to the Duterte case is not an investigation but a preliminary examination, which is the initial step “to determine whether there is reasonable basis to proceed with an investigation.” Here, three aspects are being determined: first, jurisdiction; second, admissibility; third, the interests of justice.

The Prosecutor of the ICC is Fatou Bensouda, who issued a statement last month explaining the conduct of the preliminary examination on the case against the President. She said the preliminary examination will involve crimes allegedly committed starting July 1, 2016 (or a month after Duterte became president and launched the war against drugs). Interestingly, Venezuela is in the same boat, with the preliminary examination also opened in February.

Under the Rome Statute, “national jurisdictions” have the main responsibility to investigate and prosecute those responsible for international crimes, with the ICC stepping in only after “national jurisdictions” fail to do so. In the Duterte case, it thus has to look first if the country’s judiciary is doing the investigating and the prosecuting.

Bensouda’s office is currently collecting information, pieces of evidence and submissions to “establish sufficient and factual legal basis to render a determination.” It may or may not proceed to the next phase, investigation, depending on the assessment of what her office has collected.