Clarifying the ICC preliminary inquiry

The other day Malacañang announced that the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has initiated a preliminary examination concerning the Philippines. This examination was triggered by the two communications filed by lawyer Jude Sabio and Sen. Antonio Trillanes IV and Rep. Gary Alejano at the ICC last year alleging human rights abuses by the Duterte administration in its war on drugs.

This development requires some clarifications.

First, critics of the Duterte administration cannot claim victory just yet. The OTP conducts a preliminary examination of all communications and situations that are brought to its attention. The objective of such an examination is to determine whether the situation in the reported country meets the legal criteria provided under the Rome Statute that would warrant further investigation and possible prosecution by the OTP. By no means does it indicate that there is a finding of crimes against humanity or genocide by the OTP.

The ICC will not try any case brought before it unless the strict criteria under the Rome Statute are met, according due respect to the sovereignty of states. The OTP must first satisfy itself that the case is worth investigating and prosecuting, and this will be determined during the preliminary examination.

On the other hand, supporters of the Duterte administration cannot simply dismiss the preliminary examination. The OTP may proceed to collect as much information as it deems necessary to render a determination. It is not bound by any deadline in its determination. The process may take years, even decades.

For example, Colombia has been under preliminary examination since 2004 for possible international crimes committed during the 50 years of armed conflict between its government and armed rebel groups. The situation in Afghanistan related to the US military operations against the al-Qaida and the Taliban has been under preliminary examination since 2007.

Further, satisfying the legal criteria under the Rome Statute poses challenges. The most controversial issue is complementarity. Simply put, the ICC will not hear and decide cases unless the state is unwilling or unable to prosecute the case. The OTP will assess whether there are genuine investigations and prosecutions being conducted by the state. This is decided on a case-by-case basis, taking into consideration factors such as lack of political will to prosecute and immunities enjoyed by state officials.

There are those who argue that complementarity precludes prosecution because the Philippines has a fully functional judicial system, thus negating any need for intervention by the ICC. They further cite Republic Act No. 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.

But Section 9(a) of RA 9851 specifically provides that the “established constitutional immunity from suit of the Philippine President during his/her tenure” bars the courts from exercising jurisdiction over him/her. While there is no express provision in the Philippine Constitution granting a president immunity from suit, the case of David vs Arroyo provides that a sitting president enjoys immunity from suit without further need for a constitutional provision. Thus, filing a case against President Duterte in Philippine courts while he is in power is complicated, to say the least.

Finally, the suffering experienced by the victims of human rights abuses should not be ignored. Despite official figures showing more than 3,800 victims of the administration’s war on drugs, only a handful have proceeded to file cases that are now pending in the courts and administrative bodies. Most are restrained by fear and lack of resources. Unless the administration makes a genuine commitment to address the human rights issues and the needs of the victims, it can never claim willingness or ability to address the human rights abuses brought about by its war on drugs.

Lawyer Gil Anthony E. Aquino is a fellow at the Center for International Law.