The ICC Prosecutor’s submission

On June 14, 2021, Prosecutor Ms. Fatou Bensouda formally requested the Pre-Trial Chamber of the International Criminal Court (ICC) for authority to commence an investigation into President Rodrigo Duterte’s war on drugs for possible crimes against humanity involving murder. The request was embodied in a 57-page submission titled Request for Authorization of Investigation on the Situation in the Republic of the Philippines.

Prosecutor Bensouda’s submission can be described as res ipsa loquitur — it speaks for itself as it contains copious footnotes citing numerous sources. The submission is an eye-opener for those unfamiliar with President Duterte’s war on drugs. For those who have followed the President’s war on drugs, the submission confirms their worst fears. Every Filipino must read this submission of Prosecutor Bensouda.

Of course, Prosecutor Bensouda’s submission is the result of only the first phase or the preliminary examination, which is followed by the next phase which is the investigation. A Pre-Trial Chamber approves the Prosecutor’s request to commence the next phase if “there is reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court xxx without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.”

The principal defense of the Duterte administration is anchored on the non-admissibility of the case because Philippine authorities are able and willing to investigate and prosecute the alleged crimes. Under the ICC’s complementarity rule, only when Philippine authorities are “unwilling or unable genuinely to carry out the investigation or prosecution” can the ICC prosecute the alleged crimes. However, the complementarity rule is not a factor in the Pre-Trial Chamber’s decision whether or not to authorize an investigation, and thus most likely the Pre-Trial Chamber will authorize an investigation.

The Prosecutor will submit the result of the investigation to the Pre-Trial Chamber for approval in a confirmatory hearing in order to proceed to the third phase, which is the trial by a Trial Chamber. In this confirmatory hearing, Philippine authorities can raise before the Pre-Trial Chamber the defense of the complementarity rule. The problem is Philippine law and jurisprudence clearly contradict any invocation by Philippine authorities of the complementarity rule.

First, in the 2019 case of Leila de Lima vs. President Rodrigo Duterte, the Supreme Court unanimously upheld the President’s immunity from suit, stating: “Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law.” Thus, under Philippine law Philippine authorities are “unable genuinely” to investigate or prosecute President Duterte for any of the alleged crimes being investigated by the ICC for as long as the President remains in office as President.

Second, the President exercises “control” over all executive offices and agencies of the government. The Constitution provides, “The President shall have control of all the executive departments, bureaus, and offices.” All the investigatory and prosecutory arms of the Executive branch, namely the Philippine National Police, the National Bureau of Investigation, and the Department of Justice, are under the control of the President. Any act or decision of these investigatory and prosecutory arms can be modified or reversed by the President. In short, any act or decision by executive officials to investigate or prosecute the President can be stopped at any time by the President.

Third, while the Ombudsman’s Act of 1989 vests in the Ombudsman disciplinary authority over all appointive and elective officials in the government, this power is expressly withheld “over officials who may be removed only by impeachment or over Members of Congress and the Judiciary.” Thus, the Ombudsman cannot investigate a sitting President, an impeachable officer, for the purpose of prosecuting any criminal act he may have committed.

In conclusion, under Philippine law and jurisprudence, Philippine authorities are clearly “unable genuinely to carry out the investigation or prosecution” of President Duterte for the alleged crimes he is being investigated by the ICC. Philippine authorities are “unable genuinely” to investigate or prosecute President Duterte for any crime of whatever nature while he remains in office. Thus, Philippines authorities cannot raise the complementarity rule as a defense before the ICC.

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