The upside and downside of the ICC probe

From Nov. 1, 2011, to March 17, 2019, the Philippines was a state party to the Rome Statute, a multilateral treaty creating the International Criminal Court (ICC). It was in March 2018 when former president Duterte withdrew the country from the global tribunal following its decision in 2018 to launch an investigation into his administration’s drug-related killings. Despite that withdrawal, the ICC retains jurisdiction over alleged crimes that occurred within the Philippines while it was a state party—that is, from Nov. 1, 2011, up to and including March 16, 2019.

On Sept. 15, 2021, the ICC Pre-Trial Chamber I authorized the ICC prosecutor to commence its investigation into crimes within its jurisdiction in the Philippines, and started receiving views or opinions submitted by or on behalf of the victims.

According to the ICC website, the focus of the investigation is any alleged crime within the ICC jurisdiction which includes, but is not limited to, crimes against humanity (i.e., murder) committed in the Philippines in the context of the so-called “war on drugs” campaign, during the period when the country was still a state party to the Rome Statute. Such authorized investigation was resumed on Jan. 26, 2023.

The matter of allowing the ICC investigator to do his job within Philippine territory is within the exclusive foreign relations powers of the President. It would be a tough call for President Marcos Jr. to make because compliance with international commitments is at stake. If the country shirks from such compliance, it will signal to the international community the country’s weak adherence to the rule of law. The negative signal will adversely impact the otherwise successful marketing efforts of the President during his trips abroad to woo foreign investors.

The rule of law underpins foreign investments because it ensures the predictability of outcomes. Foreign investments are safe and secure in a political regime where the rule of law is robust and vigorously observed. It is this investment atmosphere that attracts foreign investors, in addition of course to a low corruption perception index.

On the other hand, allowing the ICC investigators into the country to do their job could have a downside as well. It will imply that the country’s institutions meant to address crimes against humanity are weak.

Under the principle of complementarity, the ICC will only take cognizance of cases involving crimes against humanity if and when the country where they were committed is unable or unwilling to prosecute the perpetrators and the masterminds. Complementarity is a condition solely for the ICC to determine, which will then consider whether or not to take cognizance of a case for crime against humanity. Such condition will likely depend on the findings of the ICC investigator.

The traditional crimes recognized by the ICC usually arise from armed conflicts which constitute violations of international humanitarian law (IHL). Since 2010, the Philippines has made significant inroads in domesticating IHL with the passage of Republic Act No. 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity; RA 10530 or The Red Cross and Other Emblems Act of 2013; and RA 11188 or the Special Protection of Children in Situations of Armed Conflict Act.

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Frank E. Lobrigo is a retired judge of the regional trial court. Before joining the bench, he practiced law for 20 years.