Not easy to bring Duterte to ICC

To indict President Duterte in the International Criminal Court (ICC) for alleged crimes against humanity is not a walk in the park.

Unwilling or unable. As the Department of Foreign Affairs (DFA) explained, the complaint “will have to undergo thorough evaluation to determine whether it satisfies the Rome Statute’s requirements for admissibility and jurisdiction.”

The “Rome Statute” is the treaty that created the ICC. Signed in Rome, Italy, on July 17, 1998, it came to force on July 1, 2002. The Philippines signed it on Dec. 20, 2000, and our Senate ratified it on April 23, 2011, by a vote of 17-1. By its ratification, our country implicitly demonstrated confidence in its prosecutorial and judicial systems.

Dr. Raul C. Pangalangan, former dean of the UP College of Law and former Inquirer publisher, is a member of the Court.

I agree with the DFA. Indeed, there are many difficult hurdles before the complaint can prosper. Foremost among them is the “complementarity” principle, under which 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.” (Art. 17, Rome Statute)

Exhaust local ways. Does the recent dismissal of the impeachment complaint against President Duterte prove that the Philippines is “unwilling or unable genuinely” to investigate or prosecute him?

In my humble view, the dismissal by itself is not enough proof. Impeachment is not a criminal investigation or prosecution. While it is one way of stripping the President of his immunity and, thus, of opening him to suits, there are other domestic ways to hold him accountable.

For example, the Ombudsman is authorized to investigate, motu proprio or on complaint by any citizen, his possible criminal involvement. She may investigate him, and if the evidence so warrants, sue him after his term is over, or recommend his impeachment to Congress.

In other words, the accusers must show that they have exhausted the prosecutorial and judicial remedies in the country. After all, the ICC is a court of last resort available only if the local institutions are unwilling or unable to chase him for crimes cognizable by the ICC.

Prosecution by OSP. Another difficult hurdle is how to get the Office of the Special Prosecutor (OSP) of the ICC to indict him. The Rome Statute authorizes the OSP to initiate the process of investigation upon the request of 1) a member-state, 2) the Security Council of the United Nations, or 3) the OSP itself.

Realistically, only the third option is viable, given that the Philippines, a member-state he controls, will not make such a request. Neither can the Security Council be expected to do that, given that China will probably veto it.

Even the third option is not easy. The OSP must, under Art. 15 of the Rome Statute, initially “analyse the seriousness of the information it received.” If it finds sufficient basis, it “shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting materials collected.” This Chamber serves as a built-in check against prosecutorial abuse.

The Pre-Trial Chamber is one of the three ICC “Chambers,” (the other two are the Appeals Chamber and the Trial Chamber). If satisfied “that there is reasonable basis to proceed with an investigation … it shall authorize the commencement of the investigation….” This authority is not easy to secure; the Chamber has declined to issue it in a number of cases.

Recently, ICC Chief Prosecutor Fatou Bensouda said that her office would closely monitor developments in the Philippines. But she has not applied for, much less obtained, the needed authority to conduct a formal preliminary investigation.

There are many other hurdles, especially Art. 25 on individual criminal responsibility. But I have run out of space. Suffice it to say that to sue in the ICC, one must master at least three vital documents (the “Rome Statute,” “ICC Rules of Procedure,” and “Elements of Crimes”), understand the ICC’s legal system, and observe its strict culture of independence, integrity and objectivity.

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