Michael T. Tiu, Jr.[1] and Leandro Anton Castro[2]
The International Criminal Court (ICC) investigation into the Philippine situation is a test case in many respects. The decision of the ICC’s Pre-Trial Chamber I (PTC) granting then ICC Prosecutor Fatou Bensouda’s request for authorization to open a formal investigation came at a time when the withdrawal of the Philippines from the Rome Statute has become effective. Further, the Decision dated 15 September 2021 (PTC Decision) acknowledges that there is “reasonable basis” to proceed with an investigation into the commission of the crime against humanity of murder under the Philippine President’s banner campaign – the “War on Drugs”.
Unsurprisingly, agents of the Philippine government challenged the timing and thrust of the grant of the authority to the ICC Prosecutor to investigate. The Philippine President and his lawyers repeatedly argue that the ICC no longer has jurisdiction over the Philippines in light of its withdrawal.[3] The President’s Spokesperson also posits that the investigation cannot proceed owing to the Rome Statute’s principle of complementarity, insisting that the Philippine justice system is working.[4] In other words, state agents challenge the jurisdiction of the ICC, and the admissibility of the case.
ICC’s Jurisdiction over a Non-Member
It is a basic rule, intuitive even, in conventional international law that a state which has ceased to be a party to a treaty is no longer subject to its effects. This is the premise of the challenge to the ICC’s jurisdiction over the Philippines, which the PTC Decision addressed by stating that “[w]hile the Philippines’ withdrawal from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 March 2019.” On this point, the PTC cites Article 70 of the Vienna Convention on the Law on Treaties “which provides that withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination.”
As an instrument geared towards exacting accountability and shunning impunity, the Rome Statute anticipates a state withdrawal to avoid an investigation, and provides in Article 127(2) that such withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” The Philippine Supreme Court, in its dictum in Pangilinan v. Cayetano[5] (the case that decided the legality of the Philippines from the Rome Statute without Senate concurrence) agrees:
A state party withdrawing from the Rome Statute must still comply with this provision. Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate.
Until the withdrawal took effect on March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute. Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court.
The Challenge of Complementarity
While it is easy to assess the viability of the jurisdictional argument, the challenge based on complementarity requires a more complex treatment. While Article 1 of the Rome Statute provides that the ICC “shall be complementary to national criminal jurisdictions,” the word “complementarity” does not actually appear in the treaty. Instead, the question on complementarity is resolved under the admissibility provisions in Articles 17, 18, and 19 of the Rome Statute.
Article 17(a) requires the ICC to determine if a case is inadmissible because it is “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.” Stated differently by Antonio Cassese, this means that “[a]ll cases may be brought before national courts, whatever the magnitude of the crime, or the status, rank or importance of the accused…[t]he ICC steps in only when such courts do not act, or prove unable or unwilling to do justice.”[6]
It must be noted, however, that it is not enough to claim, as the Philippine state agents do, that the State is “willing and able” to investigate and prosecute. There must actually be an investigation or prosecution at the national level before the case is even evaluated for its inadmissibility. The Appeals Chamber in the case of Prosecutor v. Katanga[7] clarified this process:
Therefore, in considering whether a case is inadmissible under Article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answer to these questions is in the affirmative that one has to look at . . . the question of unwillingness and inability. To do otherwise would be to put the cart before the horse.
Same Case: Same Suspect
An affirmative answer to the first question posed requires that the national criminal jurisdiction is investigating or prosecuting the “same case.”[8] The ICC has focused on these two aspects to determine if the same case exists: suspect and conduct. In other words, the case filed before the ICC and that before a national criminal court are the same, so that it is inadmissible, if they deal with the same suspect and the same conduct.
First, it is easy to dispense with the same suspect standard in relation to the ongoing investigation by the Philippines’ Department of Justice, considering that none of the persons investigated are the architects of the “War on Drugs”. This partly rebuts the refrain that domestic processes are adequate considering that domestic investigations do not reveal the inclusion of high-ranking officials. The scapegoating of low-ranking law enforcement officers by investigating their specific acts puts a stop of an inquiry up the chain, making policymakers and higher-ranking officials virtually out of reach.
This assessment of the alleged investigation done by Philippine authorities led the then ICC Prosecutor, in her request, to highlight that “senior or commanding officers implicated in killings have been only temporarily relieved of duty and later moved or even promoted.”[9] Since the PTC also found that the attack [on a civilian population] took place pursuant to or in furtherance to a State policy,[10] the investigation naturally cover the policy makers.
This highlights a potential roadblock to the prosecution of the President who could be considered the primary architect of the same policy. There could not be a “same suspect” owing to the inability to prosecute the President while he sits as such. The Philippine legal system gives premium to the presidential immunity from suit. This immunity is absolute and covers all cases, and shields the president from prosecution while he is in office. The Philippine Supreme Court, in David v. Macapagal-Arroyo[11], explained that a sitting president cannot be sued because suits
will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed form any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions.
This immunity is reiterated in the local law that penalizes Rome Statute crimes or Republic Act No 9851 (RA 9851)[12] which echoes the general rule of irrelevance of official capacity in the prosecution of a suspect with the exception of the “established constitutional immunity from suit of Philippine president during his/her tenure.” In contrast, the irrelevance described in Article 27 of the Rome Statute is unqualified:
Article 27
Irrelevance of official capacity
- This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
Clearly, if the local authorities cannot prosecute the President because of immunity and the President could be one of the persons investigated by the ICC in the existing proceedings, then there is no same suspect to speak of.
Same Case: Same Conduct
Second, for the ICC to hold a case inadmissible because it involves the same conduct being investigated, it will not be dispositive if the conduct is being investigated or prosecuted as an ordinary crime or as international crime penalized under RA 9851. Philippine authorities can use these two penal regimes to posit that the same conduct is being investigated, and so the same case exists.
This position is plausible in prosecutions under the Revised Penal Code which penalizes homicide and murder. For example, the policemen who killed Kian delos Santos during a drug war operation were found guilty of murder. The argument becomes stronger if the same offense is prosecuted under RA 9851 as its Section 6 defining crimes against humanity “largely replicates the Rome Statute” provision.[13]
Even with these positions, a number of inadequacies of the domestic situation still present themselves. First, apart from the DOJ investigation and the prosecution in the delos Santos, no cases have been reported as filed against perpetrators of killings under the drug war. Second, even if those cases exist, prosecution for ordinary crimes have different elements and the conduct, although the same in some respect, may not exactly be the conduct penalized under the Rome Statute so that they are not the “same” in terms of nature, scope, and particulars.
Third, to date, there is only a single conviction under RA 9851 – the conviction of Junaid Awal of the Maute-ISI terrorist group. No state official has been prosecuted under the local law. With the President’s aggressive rhetoric of protecting law enforcement officers implicated in extrajudicial killings, is accountability really going to happen under RA 9851? It is unlikely, at least for purposes of a challenge to the admissibility of a case before the ICC.
It is only when this first prong of the admissibility test is satisfied, i.e. that there is an ongoing same case, in accordance with the procedure in Article 19, that the question of the adequacy of domestic remedies can even be properly assessed in light of the “unwilling or unable” requirement under complementarity. Even then, Philippine state agents have a mountain to climb, at least legally.
[1] Michael T. Tiu, Jr. is an Assistant Professor at the UP College of Law. He heads the International Criminal Law Program of the UP Institute of International Legal Studies.
[2] Leandro Anton M. Castro is a graduate of the UP College of Law. He is an underbar associate at Palarca & Baluyut Law Offices and a former research assistant at the UP Institute of International Legal Studies.
[3] Joviland Rita, Palace maintains ICC has no jurisdiction over Philippines, Sept. 16, 2021, GMA News Online, https://www.gmanetwork.com/news/topstories/nation/803474/palace-maintains-icc-has-no-jurisdiction-over-philippines/story/
[4] GMA News, Palace maintains ICC has no jurisdiction over Philippines (2021), available at https://www.youtube.com/watch?v=_pWC9Mw3MbU&t=251s
[5] Pangilinan v. Cayetano, G.R. No. 238875/G.R. No. 239483/G.R. No. 240954, March 16, 2021
[6] Antonio Cassesse et. al. (eds.), Cassesse’s International Criminal Law (3rd Ed.), Oxford: 2012, pp. 296-297.
[7] The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/04-01/07 OA 8, Sept. 25, 2021
[8] see Mark Klamberg (ed.), Commentary on the Law of the International Criminal Court, 208-210 (2017).
[9] Situation in the Republic of the Philippines (Public redacted version of “Request for authorisation of an investigation pursuant to article 15(3)”, 24 May 2021, ICC-01/21-7-SECRET-Exp), ICC-01/21, June 14, 2021, para. 117
[10] Situation in the Republic of the Philippines (Decision on the Prosecutor’s request for authorisation of an investigation pursuant to Article 15(3) of the Statute), ICC-01/21, Sept. 15, 2021
[11] David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006
[12] Rep. Act. No. 9851 (2009), sec. 1 Short Title. – This Act shall be known as the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity”
[13] Emma Palmer, Complementarity and the Implementation of International Criminal Law in the Philippines, 17-1 New Zealand Journal of Public and International Law (2019) 67-91
Featured Image:
Photo taken by Fred Dabu in 2017
People’s SONA 2017 / SONA ng Bayan 2017
Quezon City, Philippines
July 24, 2017