Whether or not a case can succeed against President Duterte et al. for the killings in connection with the administration’s war on drugs, we must first understand how the International Criminal Court (ICC) operates as a court. Before we discuss whether the spate of drug killings can amount to crimes against humanity, or if the state is unable or unwilling to investigate, or if there exists sufficient evidence to link the drug killings to Mr. Duterte et al., we must first understand the ICC’s legal processes. After all, any legal action we do will be limited by this procedural framework.
The Rome Statute, the treaty that established the ICC, grants the Office of the Prosecutor (OTP) the power to conduct an investigation motu proprio (on its own initiative). This is one of the modes by which the ICC exercises jurisdiction, the other two being through a state referral or a United Nations Security Council resolution.
A state referral, or the process by which the state itself refers a situation to the ICC, is highly unlikely as it is Mr. Duterte et al., state agents themselves, that are potentially charged for the drug-related killings. A UN Security Council resolution, on the other hand, is also unlikely as it depends on the whims of politics and foreign affairs. We have seen this in the UN Security Council’s failure to act on the Syrian crisis.
This leaves us with the third option — the OTP investigating the drug-related killings on its own initiative.
The OTP’s investigative power begins with a preliminary examination on the basis of information submitted to it. Under OTP regulations, the information need not be in any specific form and may be submitted by anyone. This includes information sent by individuals or groups, states, or intergovernmental or nongovernmental organizations.
Can the information be in the form of a written report? A Philippine-style complaint affidavit? Notes written in no particular format? Audio? Video? Compiled in a USB or a CD? Yes. The ICC does not require any specific format to be favorably considered; there is no hierarchy of form in information processing.
Must I fly to the Netherlands to submit this information? Not necessarily. The OTP receives information via e-mail or postal mail. The material can also be handed personally to an OTP staff after an appointment is made, but all information received (whether electronically, through post, or in person) are treated equally. No particular manner of submission is prioritized over the other.
The preliminary examination does not necessarily initiate the criminal action. The OTP simply evaluates if there is reasonable basis to conduct a full-blown investigation. This is where the usual questions come in. Can the drug-related killings amount to crimes against humanity? Were the crimes committed within the timeframe wherein the ICC can exercise its jurisdiction? Does it appear that the Philippines is unable or unwilling to investigate such killings? Are there substantial reasons to believe that an investigation would not serve the interests of justice, despite the gravity of the crime and the interests of the victims?
When there is reasonable basis to proceed, the OTP will file a request for authorization with the Pre-Trial Chamber. If authorized, the OTP then conducts a full-blown investigation. It is this investigation phase that is similar to the Philippine-style preliminary investigation conducted by Philippine prosecutors. During this stage, the OTP may request the issuance of a warrant of arrest from the Pre-Trial Chamber upon satisfaction of certain criteria. The enforcement of the arrest warrant will require state cooperation. The OTP may also request other forms of assistance from the state for the conduct of investigation. Once the defendant is arrested and surrendered to the ICC, court proceedings begin.
What can we learn from this? Let me point out the most significant at this stage. The legal process, as we know it, is not universal. Different court, different rules, different perspectives. Our traditional modes of understanding the legal process must accommodate the complexities of international litigation—of litigating crimes that involve not only one, five, or twelve victims, but thousands, and of putting to trial defendants whose alleged crimes would have been by then committed 10, 12 years before. We must understand that the powers and functions of ICC judges are different from Philippine judges, that a mixed common law and civil law system of litigation requires different responsibilities from counsel. More importantly, we must understand that the ICC, like any international court, requires cooperation from state parties for enforcement of its warrants and processes.
All these call for alternative perspectives. I do not predict the success or failure of any case in the future, but this should be the background against which we realistically set our goals.
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Jenny Jean B. Domino has just completed her internship at the International Criminal Court, where she worked with the Office of the Public Counsel for the Defence. She received her law degree from the University of the Philippines in 2014, and will leave soon for Harvard Law School to study for the Master of Laws (LL.M.). At UP, she served as chair of the Philippine Law Journal. She is currently a consultant at the Philippine Commission on Human Rights.