Sun.Star Cebu

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 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.

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