Making sense of the ICC brouhaha

Presidential spokesperson Harry L. Roque Jr. has the distinction of being the only Filipino allowed to practice as a defense counsel in the International Criminal Court (ICC).

Only three ways. And Dr. Raul C. Pangalangan, his former professor and dean at the UP College of Law who recruited him to the UP law faculty after he became a lawyer, is the only Filipino now sitting as an ICC judge (ICC magistrates are called “judges,” not “justices”).

With such a singular distinction, Secretary Roque can speak authoritatively on the ICC. With his leave, however, may I humbly clarify a few inaccuracies that have appeared in the local newspapers on the recent ICC brouhaha so our people can make a correct sense of its context?

To begin with, under the “Rome Statute,” the treaty that created the ICC, the ICC’s Office of the Prosecutor (OTP) headed by Chief Prosecutor Fatou Bensouda may initiate a “preliminary examination” only upon the request of 1) a member-state, 2) the Security Council of the United Nations, or 3) motu proprio the OTP itself.

Obviously, the initiative did not come from the Philippines as a member-state or from the UN Security Council. Clearly, it was initiated motu proprio by the OTP.

Not triggered by. Inaccurate, therefore, are the media reports saying that the OTP’s “preliminary examination” of the war on drugs in the Philippines was “triggered by” or “was the result of the 77-page complaint filed by Jude Sabio, a lawyer for confessed Davao Death Squad hitman Edgar Matobato against President Duterte and 11 senior officials.”

The video announcement of Bensouda did not specifically mention the Sabio “complaint.” Neither did she say that President Duterte or anyone else was being probed. All she announced was: “Following a careful, independent and impartial review of a number of communications and reports documenting alleged crimes potentially falling within the jurisdiction of the ICC, I have decided to open a preliminary examination … of the situation in the Philippines.”

Moreover, Bensouda “emphasize[d] that a preliminary examination is … but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis” to conduct later what is roughly the equivalent of a preliminary investigation in the Philippines.

Unlike here, cases in the ICC are not commenced by “complaints.” Affidavits and documents submitted to the OTP are at best “inputs” which the OTP may or may not take into account in its examination.

Again, unlike in the Philippines where prosecutors are passive, the OTP is “proactive” in gathering documents and in contacting witnesses on its own initiative.

However, while the OTP can initiate a “preliminary examination,” it does not have absolute discretion to proceed to a “preliminary investigation.” Under Art. 15 of the Rome Statute, it must, as a countercheck, first secure the approval of the ICC’s Pre-Trial Chamber. This process takes years.

For example, the OTP began its preliminary examination of alleged mysterious abuses in Afghanistan in 2007 but it was only in 2017 when it sought permission to conduct a preliminary investigation from the Pre-Trial Chamber in which Judge Pangalangan sits (membership is rotated on a case-by-case basis).

Becoming conduct. Note, too, that the ICC is a judicial, not a political, entity. It strictly observes a becoming conduct of “old-fashioned” independence and integrity. The judges, prosecutors and lawyers don’t socialize or talk with one another except in the courtroom, reminiscent of the arm’s-length and deferential magistrate-lawyer relations in our country during the 1950s and ’60s.

Finally and most importantly, “complementarity,” in the words of Bensouda, “is the cornerstone of the Rome Statute.” Under Art. 17 of the treaty, the ICC will decline a case if it is already “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.”

If our government can show it is willing and able “genuinely” to investigate or prosecute, the ICC will not have jurisdiction over the “situation in the Philippines.”

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