On Claims Relating to the Investigation of the Prosecutor of the International Criminal Court into the Philippine Situation
On 15 June 2021, former International Criminal Court (ICC) Prosecutor Fatou Bensouda sought authorization to open an investigation into the Situation in the Republic of the Philippines. This request to commence an investigation into the alleged crimes against humanity committed between 1 November 2011 and 16 March 2019 in the context of the War on Drugs was granted by the Pre-Trial Chamber I of the ICC in its Decision on the Prosecutor’s request for authorisation of an investigation pursuant to Article 15(3) of the Statute on 15 September 2021.
In response to this decision by the Pre-Trial Chamber I of the ICC, the Chief Presidential Legal Counsel, among others, made a number of claims. The International Criminal Law Program Team of the UP Law Center Institute of International Legal Studies (UP IILS) assesses these claims of the Chief Presidential Legal Counsel and other general claims on this subject matter, in light of basic principles and rules in international law.
“The Rome Statute was never in force in this country” -Chief Presidential Legal Counsel
Incorrect.
The Republic of the Philippines signed the Rome Statute of the International Criminal Court (Rome Statute) on 28 December 2000. The ratification of the Rome Statute by then President Benigno Aquino III was concurred in by the Senate, in compliance with Sec. 21, Art. VII of the Constitution, on 23 August 2011.
Article 126(1) of the Rome Statute provides that “the Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.”
Article 126(2) of the Rome Statute provides that for each state ratifying the statute after the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession. The Philippines deposited its instrument of ratification on 30 November 2011. The Philippines was a Party to the Rome Statute of the International Criminal Court (Rome Statute) from 1 November 2011 until the effectivity of its withdrawal on 17 March 2019.
Article 12(1) of the Rome Statute is clear that “[a] state which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5, by which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression.”
Thus, the ICC had jurisdiction over the Philippines from 1 November 2011 until 16 March 2019.
“Even the very provisions of the Rome Statute will show na hindi parin sila pwede mag acquire ng jurisdiction. Unang una, nag withdraw na tayo as member at inaprubahan na nila ang withdrawal.” -Chief Presidential Legal Counsel
Incorrect.
Article 127 (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.”
This provision exists exactly to serve the purpose of the ICC as a mechanism to ensure that there is no impunity in the commission of crimes of the most serious concern to the international community as a whole. The same provision states that withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” The aforementioned provision anticipates a situation where a matter was taken under consideration by the ICC prior to the concerned State Party’s withdrawal, and provides that the latter shall not affect the continued consideration by the Court of such matter.
Former ICC Prosecutor Fatou Bensouda began the preliminary examination of the situation in the Philippines on 08 February 2018. Although the Philippines’ withdrawal from the Rome Statute became effective on 17 March 2019, the ICC maintains jurisdiction over the alleged international crimes that have been committed or occurred in the Philippines while the latter was still a State Party to the Statute from 01 November 2011 until 16 March 2019.
Thus, in accordance with Article 127 (2) of the Rome Statute, there is sound legal basis for the ICC Prosecutor, as authorized by the Pre-Trial Chamber I, to proceed with its investigation into the Situation of the Philippines with respect to the alleged crimes against humanity committed from the period of 01 November 2001 until 16 March 2019 in the context of the “War on Drugs”.
“‘Yang Rome Statute, ever since, hindi yan naging enforceable, kasi nga, from the very beginning, hindi ‘yan lumabas sa Official Gazette” – Chief Presidential Legal Counsel
Incorrect.
Treaties, like the Rome Statute, do not require publication before they become effective to States Parties. Due process is served by each State’s sustained participation in the negotiation, drafting, and accession stages of treaty-making. For the Philippines, these efforts culminated in 2011 when it became the 117th country to ratify the Rome Statute after an 11-year process spanning 3 different administrations. To require publication in order for a treaty to be effective on a party is akin to a legislator who crafted a law asking for publication to know the contents of the law he or she drafted.
The Rome Statute need not comply with the publication requirement articulated in the Tanada v Tuvera cases as it is a domestic requirement that is superfluous given the procedural guarantees in the Rome Statute and the Rules of Procedure and Evidence of the ICC. In fact, Article 27 of the Vienna Convention on the Law of Treaties disallows States from invoking the provisions of its domestic laws to justify their failure to perform treaty obligations.
“Hindi mo masasabi na unwilling tayo or unable” -Chief Presidential Legal Counsel
Premature.
This claim assumes that the rule on complementarity bars the ICC from investigating crimes in the Philippines. The word ‘complementarity’ does not appear in the Rome Statute. The substance of this rule, however, is couched as an issue of admissibility in Article 17 of the treaty. The language of the provision centers on the inadmissibility of a case, rather than its admissibility. Thus, a case is the proper subject of an ICC investigation unless it is inadmissible because:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State to genuinely prosecute;
(c) The person concerned has already been tried for conduct which was the subject of the Complaint, and a trial by the Court is not permitted under the Rome Statute; and
(d) The case is not of sufficient gravity to justify further action of the Court.
Unless a secret or confidential investigation or prosecution is underway, it is clear that scenarios (b) and (c) have not occurred. Certainly, statements like “ the President said he would die first before facing foreign judges” cast doubt as to the possibility of a prosecution of the President and his agents for crimes against humanity in this jurisdiction. In any case, such statements will at least be an important consideration as to whether scenario (a) will occur, i.e., that the Philippine State is ‘willing or able’ to commence a prosecution under domestic penal law.
An invocation of complementarity before the media is improper and premature. It is best threshed out in a challenge to the jurisdiction of the ICC or the admissibility of the case under Article 19 of the Rome Statute.
“The Philippines did not consent to be party to the ICC in a manner that would waive its sovereignty and jurisdiction” – Presidential Spokesperson
Misleading.
Apart from the fact that the Philippines is a member of a community of nations and so actively participates in other international law regimes, the investigation into the Philippine Situation is not and will not lead to an indictment of the Philippine State.
Article 25 of the Rome Statute dispels this notion when it provides that the ICC “shall have jurisdiction over natural persons.” Moreover, related to claim on due process, Article 55 of the Rome Statute provides sufficient guarantees on the rights of persons under investigation.
In fact, since the Philippine Constitution provides in its Section 1, Article II, that sovereignty resides in the people, then this investigation would serve the very sovereign people who fell victim to the crimes against humanity allegedly committed in this jurisdiction.
“The government will not let in any ICC member to collect information and evidence here in the Philippines, they will be barred entry” -Chief Presidential Legal Counsel
Immaterial.
This claim is a logical result of the statement made that the government will deny the Office of the Prosecutor (OTP) entry into the Philippines, implying that a physical visit by the prosecutor is necessary to the probe.
Even without entering Philippine territory, Article 54 of the Rome Statute provides alternative methods the prosecutor may use to investigate alleged crimes, which include, among others, collecting and examining evidence, requesting the presence of and questioning persons under investigation, and entering into arrangements or agreements to ensure cooperation by any state, intergovernmental organization, or person.
Further, Rule 104 of the Rules of Procedure and Evidence of the ICC authorizes the OTP to seek additional information from organs of the United Nations, intergovernmental and non-governmental organizations, receive written or oral testimony at the seat of the ICC, or accept other reliable sources that the prosecutor deems appropriate. Alternatively, the OTP may also choose to implement specific investigative plans or strategies, such as instructing domestic personnel to transmit relevant evidence or information to the OTP.
In fact, as part of its consideration of the OTP’s request, the ICC had provided a mechanism for the exercise of the right to submit “representations”, i.e. to provide views, concerns and expectations to the ICC Judges who are considering the OTP’s request. This process ended on 13 August 2021.
An incumbent President or Vice President is immune from prosecution at the ICC.
Incorrect.
Neither an incumbent President nor Vice President is immune from prosecution by the ICC Prosecutor since official capacity is irrelevant in the context of prosecuting violations under the Rome Statute.
Article 27 of the Rome Statute makes both functional and personal immunities ineffective.
Article 27(1) of the Rome Statute provides that official capacity shall in no case exempt a person from criminal responsibility under the Rome Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
Article 27(2) provides further that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such person.” This clause in effect strips one of personal immunity or that immunity which generally attaches by virtue of one’s position or official capacity and ensures that the ICC may exercise jurisdiction over such person.
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The International Criminal Law Program of the UP IILS is headed by Prof. Michael T. Tiu, Jr.
The members of the Team are UP College of Law students Paolo Irineo Jose, Leandro Anton Castro, Anna Quimpo, Peter Joshua Ortega, and Nichol Muñoz.
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