The unanswered question
IT is politically expedient for administration critics to portray the President’s recent withdrawal from the International Criminal Court as a sign of guilt or weakness. At the instigation of some of these critics, the UN tribunal earlier this year announced it would open a preliminary examination of allegations of widespread extra-judicial killings in the Philippines’ war on illegal drugs.
But such attacks ignore the nature of the ICC and what its role ought to be.
In the aftermath of the ICC’s announcement in February that it would look into the Philippine situation, the administration has raised one key question that not a single official of the tribunal has adequately addressed.
This question should not be viewed as an attempt to frustrate or to obfuscate, but rather to clarify the conditions for the ICC’s involvement in what appears to be a domestic, law-and-order concern.
The unanswered question is: Is the ICC not violating the principle of complementarity, which is spelled out in the Rome Statute?
To initiate an investigation, the ICC prosecutor must have a “reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;” the investigation would be consistent with the principle of complementarity; and the investigation serves the interests of justice.
The principle of complementarity means that the ICC will only prosecute an individual if states are unwilling or unable to prosecute. Therefore, if legitimate national investigations or proceedings into crimes have taken place or are ongoing, the Court will not initiate proceedings. This principle applies regardless of the outcome of national proceedings. To date, Philippine courts have not proved themselves to be unwilling or unable to prosecute cases of alleged extrajudicial killings, so what is the basis for the ICC’s involvement?
There are other questions regarding the nature of the crimes that the ICC may prosecute under the Rome Statute, and whether the Philippine cases fall within any of these categories. But the ICC must argue convincingly why it believes it has jurisdiction over these cases when Philippine courts continue to function.
The country’s withdrawal from the ICC, Duterte asserts, removes him and his administration from the tribunal’s jurisdiction—a view the ICC and other legal experts dispute because the process had already begun before the pullout and also because the Rome Statute to which the Philippines was a signatory requires a one-year notice before the withdrawal takes effect. But while all this is being sorted out, to the extent that the ICC has left some legitimate questions unanswered, its jurisdiction—and credibility—are suspect, to say the least.