Correcting misconceptions on ICC

There are misconceptions related to the recent move of President Duterte to withdraw the Philippines’ membership in the International Criminal Court (ICC).

These misconceptions have either wrongly influenced the President’s decision or are being intentionally misused to justify his ill-advised decision.

First, there is no such thing as a complaint-affidavit in the ICC. Affidavits submitted to the ICC are mere pieces of offered evidence, but their submission do not automatically start a case. So, it’s incorrect to say that an ICC case began when lawyer Jude Sabio submitted a complaint in the ICC.

It’s also totally wrong to say that ICC Prosecutor Fatou Bensouda “gave due course” to the Sabio complaint. There is no such complaint. When Bensouda decided to start a preliminary examination, she acted on the totality of evidence available to her from ALL SOURCES.

Second, Bensouda did not violate the principle of complementarity. She could not have because complementarity is determined only after the completion of the preliminary examination. Bensouda has not yet come to the conclusion that complementarity has been satisfied because she just started the preliminary examination.

Third, what Bensouda started is a “preliminary examination” and not an “investigation.” The procedure in the ICC starts when the Office of the Prosecutor (OTP), currently headed by Bensouda, conducts a “preliminary examination” on its own. When the OTP completes the preliminary examination, it needs to seek PERMISSION to proceed to an “investigation.” That is heard by a Pre-Trial Chamber consisting of three judges.

The Pre-Trial Chamber process is for the purpose of determining whether there are “reasonable grounds” to proceed to a formal investigation. The Pre-Trial Chamber is the ICC’s internal check-and-balance mechanism to make sure that the OTP does not abuse its power. In the drafting history of the Rome Statute, the Prosecutor was given unilateral power to start an examination, but only on the condition that this is subject to the check and balance of the Pre-Trial Chamber.

Fourth, it is too early for anyone to say that the ICC has found that the Philippines has failed the test of complementarity and that the ICC jurisdiction has kicked in. That is not done until the end of the actual
investigation.

Fifth, notice that at the preliminary examination stage, there is no accused yet. All we have at this point is the Prosecutor snooping around. It is only at the stage of the formal investigation that there is what we call a “Situation Country” subject to investigation.

Sixth, all this talk about President Duterte being charged is premature, and it needlessly politicizes the debate. The question of who will be charged depends on the “mode of liability,” or what is familiar to Filipino lawyers as principal, accomplice and accessory. The issue of “command responsibility” will also be factored in.

Seventh, finally, there is a need to clarify the argument that the Rome Statute is not effective in the Philippines because it was not published in the Official Gazette. When local crimes are charged in our courts, the Department of Justice will invoke the Revised Penal Code, and not the Rome Statute. The crime charged will be “murder” under the Revised Penal Code and not “extermination” under the Rome Statute. We cannot imagine a Filipino prosecutor filing a criminal information in court invoking the Rome Statute. Needless to say, the Revised Penal Code has been published in the Official Gazette and is being applied in Philippine courts.

We must distinguish between the international binding character of a treaty among states on one hand, and the domestic applicability of a treaty and whether it can be invoked directly in the courts without being relegislated by Congress, on the other hand. Neither of these is relevant here. To satisfy the duty of complementarity, what the ICC looks for is whether the local judicial system is prosecuting the crimes under its own legal system.

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