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Wednesday, June 19, 2024

The ICC and Duterte, the next phase

“The International Criminal Court can only intervene where a State is unable or unwilling genuinely to carry out the investigation and prosecute the perpetrators.”

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The victims of the war against drugs inflicted by the Duterte administration on the Filipino people cry out for justice.

Thousands have died from this war; many families have been affected. Unfortunately, in our country, justice has so far eluded the victims and their families.

With the recent order by the International Criminal Court pre-trial chamber for the resumption of the probe on Duterte’s violent war on drugs, which was earlier suspended, we review once again the legal framework of the ICC’s creation under the Rome Statute, the implications of the country’s unilateral withdrawal from the Roman Statute treaty in the probe of Duterte administration’s involvement in the war on drugs, and the effects of the assumption by President Marcos as the chief implementer of laws and foreign policy architect, on the direction and fate of the drug war investigation.

The Rome Statute was adopted by 120 States on July 17, 1998 to establish the International Criminal Court.

This is the first time in the history of humankind that States accepted the jurisdiction of a permanent international criminal court for the prosecution of the perpetrators of the most serious crimes committed in their territories or by their nationals after the entry into force of the Rome Statute on July 1, 2002.

The Criminal Court however is not a substitute for national courts.

According to the Rome Statute, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.

The International Criminal Court can only intervene where a State is unable or unwilling genuinely to carry out the investigation and prosecute the perpetrators.

The primary mission of the International Criminal Court is to help put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, and thus to contribute to the prevention of such crimes.

What are the crimes under article 5 of the Statute of Rome over which the ICC may exercise jurisdiction?

The jurisdiction of the ICC shall be limited to the most serious crimes of concern to the international community as a whole.

The Court has jurisdiction with respect to the following crimes:

(a) The crime of genocide which means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

(b) Crimes against humanity which means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

(c) “War crimes” which means grave breaches of the Geneva Conventions of August 12, 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention and other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of August 12,1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause.

And (d) “Crime of Aggression” which means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Once a case is referred to the ICC for investigation, the Office of the Prosecutor determines the jurisdiction of the Court with respect to the alleged crimes taking into account his/her thorough analysis of the available information, to determine whether there is a reasonable basis to proceed with an investigation.

It is likewise the task of the Prosecution to ascertain whether any national authorities are conducting a genuine investigation or trial of the alleged perpetrators of the crimes, as well as to notify the States Parties and other States which may have jurisdiction of its intention to initiate an investigation.

The Pre-Trial Chamber may, at the request of the Prosecution, issue a warrant of arrest or summons to appear if there are reasonable grounds to believe that the person concerned has committed a crime within the Court’s jurisdiction.

The warrant is issued if it appears necessary to ensure that the person will actually appear at trial, that he or she will not obstruct or endanger the investigation or the Court’s proceedings, or to prevent the person from continuing to commit crimes.

I will continue this discussion on Tuesday.

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