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.

Why should be disagreed with withdrawing from the Rome Statute?

The Statute will enter into force for the Philippines on 1 November, bringing the total number of States
that have joined the Rome Statute system to 117.

ICC President Sang-Hyun Song, who visited the Philippines and other South-East Asian countries in
March to facilitate consultations on ratification, applauded the move.

“This act is yet another indication of Asia’s growing role in the international community’s efforts to put
an end to impunity for the most serious crimes of concern to humanity,” said Mr. Song, speaking in The
Hague where the ICC is based.

“I send my heartfelt congratulations to all those in the Philippines who worked hard to make this day
possible, and I hope that this historic decision will serve to dispel unfounded concerns about joining the
ICC among other Asian nations.”

The ICC is the first permanent international court set up to prosecute individuals for genocide, crimes
against humanity, war crimes and the crime of aggression.

Established by the Rome Statute of 1998, the ICC can try cases involving individuals charged with war
crimes committed since July 2002. The Security Council, the ICC Prosecutor or a State Party to the court
can initiate any proceedings, and the ICC only acts when countries themselves are unwilling or unable to
investigate or prosecute.