Demystifying the ICC prosecutor’s bravado
Presidential spokesperson Harry Roque “shrugged off” the announcement (more like bravado) of Fatou Bensouda, the chief prosecutor of the International Criminal Court (ICC) on her last day in office (June 14) that “the preliminary examination into the situation [here]… has concluded and that (she) requested judicial authorization to proceed with an investigation.”
Roque branded the announcement as “legally erroneous… politically motivated… (and) no big deal,” to which the President “would never cooperate” since it is based on “mere hearsay… that would not stand in court.”
Backing him, the Department of Foreign Affairs (DFA) found Bensouda’s bravado “deeply regrettable” and “a blatant violation of the principle of complementarity…” It added that “the interagency panel headed by Secretary Menardo Guevarra [reviewing the war on drugs] should be allowed to finish” its work.
The President’s critics were ecstatic. Taunted Edre Olalia of the National Union of Peoples’ Lawyers, “Indeed, there will be justice somewhere, somehow. While the road ahead will be tortuous… we will see this through.” Agnes Callamard, secretary general of Amnesty International, chimed in with “This announcement is a moment of hope for thousands of families… grieving those who lost to the government’s so-called war on drugs.”
To demystify the bravado and the reactions, a brief on the ICC is in order. The Rome Statute (RS) is the treaty that created the ICC and laid down its structure, jurisdiction, procedures, and the basic rights of the accused. Notably, China, Russia, and the US are not signatories to the RS.
The ICC is the only permanent international court granted the power to try and to convict individuals, not to penalize states. It has four principal organs: the Presidency (occupied by Piotr Hofmanski of Poland), the Judicial Divisions (composed of the Pre-Trial, Trial, and Appeals Chambers), the Office of the Prosecutor (OP), and the Registry.
Unlike here, ICC cases are not commenced by a “complaint” of injured individuals. Lawyers cannot appear as private prosecutors. Only the OP can prosecute cases.
The OP may conduct a preliminary “investigation” only when a “situation” is referred to it (1) by a member-state, or (2) by the UN Security Council, or (3) when authorized by the Pre-Trial Chamber (PTC). Under Item 3, the OP first conducts a preliminary examination to determine whether a “situation” exists, that is, whether crimes punishable by the RS were committed in a country. If and when authorized by the PTC, the OP may file charges against the individuals liable for the “situation.”
To stress, an individual may be held liable only (1) for crimes listed in the RS (2) committed in the territory of a member-state, or anywhere by a national of a member-state (3) when such state is or was a member, (4) provided there is no “complementarity.”
Complementarity means that the ICC will act only if the member-state concerned is “unwilling or unable to prosecute.” Thus, if “legitimate” (repeat, “legitimate”) local investigations, prosecutions, and trials were or are being conducted, the ICC will not intervene.
Let us apply these concepts and principles. Bensouda has “determined that… the crime against humanity of murder has been committed… in the Philippines between 1 July 2016 and 16 March 2019 in the context of the… war on drugs,” and even “… as early as 1 November 2011.”
By posting the dates carefully, Bensouda hoped to satisfy all the requirements except complementarity remaining as an issue. Not surprisingly, therefore, the DFA asked that Guevarra’s task force be allowed to finish its work.
Will the presidential immunity from suit show that the government is “unwilling or unable to prosecute?” Yes, but the immunity ceases when the presidential term ends. Joseph Estrada was charged with and convicted of plunder after his tenure.
To sum up, politics aside and legality upfront, I think Bensouda’s bravado is a major leap, but more hurdles abound. Its progression to the filing of charges against the offenders, their arrest, trial, and possible conviction will depend on: (1) How the PTC assesses it; (2) How new Chief Prosecutor Karim Khan (an eminent Queen’s Counsel in Britain) follows up Bensouda’s leads; (3) How the police (PNP) and the prosecutors (DoJ and OMB) show the “legitimacy” and “genuineness” of their work; and (4) How the Supreme Court and the entire judiciary uphold their independence and integrity.
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