President Rodrigo Duterte’s decision to withdraw the Philippines from the Rome Statute of the International Criminal Court will not protect him; rather, it has only made him even more vulnerable to a potential criminal case. No amount of hiding behind the flag, or the ostentatious kissing of it, can mask the message his decision sends. He is saying: I do not consider myself accountable.
To date, the only thing that the Office of the Prosecutor of the ICC has done has been to begin what is known as a preliminary examination. As Prosecutor Fatou Bensouda of Gambia explained when she announced the conduct of the preliminary examination on February 8: “A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.”
What is involved in that process? The young legal scholar Jenny Domino, writing in the Cambridge International Law Journal, draws the necessary implication: “This process requires the Prosecutor to assess whether national proceedings exist with respect to potential cases that the Prosecutor may investigate after conducting the preliminary examination.”
That is the important point. While the preliminary examination must, in Bensouda’s words, necessarily “analyse crimes allegedly committed in this State Party since 1 July 2016, in the context of the ‘war on drugs’ campaign launched by the Government of the Philippines”, the principal objective of the examination is, as Domino argues, to determine “whether national proceedings exist with respect to potential cases” – in the Philippine situation, this means determining whether there are credible investigations looking into the war on drugs.
The ICC policy paper on preliminary examinations offers important context: “In the course of its preliminary examination activities, the Office will seek to contribute to the two overarching goals of the Rome Statute: the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes.”
In other words, the real purpose of a preliminary examination is to find out if “genuine national proceedings” are underway. The legal framework for a preliminary examination considers three legal categories – jurisdiction, admissibility (which covers both complementarity and the gravity of the crime), and the interests of justice – but it is complementarity that is the principal focus of the examination.
The ICC policy paper again: “Complementarity involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office. This will be done bearing in mind the Office’s policy of focusing investigative efforts on those most responsible for the most serious crimes under the Court’s jurisdiction. Where relevant domestic investigations or prosecutions exist, the Office will assess their genuineness.”
Domino’s journal post is a lucid examination of the different arguments the Duterte administration and its allies have offered against a potential ICC investigation. What about Republic Act No 9851? What about the writs of amparo issued by the Supreme Court? What about the criminal complaints filed against police officers implicated in extrajudicial killings? What about impeachment? Domino calmly dismantles these and other arguments.
To add to this paucity of proceedings (forget genuine or national), we have the president, despite his occasional efforts to restrain his mouth, repeating his instructions to policemen to kill, his insistence on police innocence in even clear-cut cases (for instance, the Espinosa execution), his characteristic description of drug users as no longer fully human, and so on. Against this backdrop, he decides, unilaterally, to withdraw the Philippines from the ICC – and on the flimsiest of reasons. What was he thinking? (RA 9851 itself lists some of the international laws the Philippines follows. Were any of these ever published in the Official Gazette or a newspaper of national circulation?)
Duterte’s unmanly withdrawal thus only reinforces the impression that he has manipulated the instruments of the government so as never to be held accountable – ironically creating the very condition that would invite the ICC Prosecutor to investigate a sitting head of state.