The admissibility of cases into the International Criminal Court (ICC) falls under Article 17 of the Rome Statute, not in Article 1 as Sen. Ronald “Bato” Dela Rosa wrongly said in an interview on Nov. 27.
Dela Rosa also misleadingly said the presence of a working democracy and a solid judicial system in the country are reasons the international court does not have to conduct its own investigation on former president Rodrigo Duterte’s war on drugs.
Article 17 of the Rome Statute, the treaty that established the ICC, laid down the instances when cases become inadmissible to the criminal court.
In particular, paragraph 1(a) states that the court may conduct its separate investigation when the concerned state where the crime happened is unwilling or unable to investigate independently. It reads:
(T)he Court shall determine that a case is inadmissible where: (a) The case 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.
Meanwhile, Article 1 of the Statute revolves around the establishment and primary purpose of the ICC: to implement its jurisdiction over people for the most heinous crimes of global concern. It does not talk about when the international court could step in to investigate.
The article states:
An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
Dela Rosa mixed up the two provisions in a one-on-one interview with CNN Philippines’ The Source, saying at the 3:10 mark:
(It’s) very clear that according to the Article 1 of the Rome Statute, the ICC can only conduct its investigation if and when the country is not capable of conducting the investigation or the [country's] jurisdiction is not willing to conduct an investigation into the alleged crimes being committed.
The senator’s remark came days after three resolutions urging the Marcos government to cooperate in the ICC investigation into the extrajudicial killings involved in former president Duterte’s drug war were filed in the House of Representatives. A similar one was filed in the Senate after Dela Rosa gave the interview.
The ICC’s probe involves the extrajudicial killings that allegedly happened way back when Duterte was still mayor of Davao City in 2013 up until his infamous war on drugs during his presidency.
Dela Rosa was Davao’s police director during Duterte’s mayorship, then became national police chief during the latter’s presidential term.
Although the Philippines withdrew from the ICC on March 17, 2018, both the international and the Supreme Court, citing Article 127 of the Rome Statute, have clarified that the alleged crimes against humanity during the Duterte administration from Nov. 1, 2011 to March 16, 2019 still fall under the court’s jurisdiction.
Article 127(2) provides that a state, even after its withdrawal, is not relieved of its obligations arising from the Statute when it was still a party to it.
The Supreme Court said in a March 2021 decision:
Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member.
The Philippines withdrew from the ICC in March 2018, a month after retired ICC prosecutor Fatou Bensouda opened a preliminary examination into the situation in the Philippines.
Under Article 127(1) of the Statute, a state party’s withdrawal shall take effect a year after the notification to withdraw had been issued. This means that the ICC still has jurisdiction over the crimes that occurred from Nov. 1, 2011 (the day the Philippines became State party to the Rome Statute), to March 16, 2019 (the day the withdrawal took effect).
Dela Rosa also said in the interview that despite the Philippines having a “strong judicial system,” the court still continued its probe, forcing Duterte to leave the ICC. He said at around the 3:36 mark:
In our case, we have a working democracy and we have a strong judicial system. So (Dutert)] felt this was an intrusion into our sovereignty so he withdrew from the Rome Statute.
But the court said in a January 2023 press release that it was “not satisfied that the Philippines is undertaking relevant investigations that would warrant a deferral of the Court’s investigations on the basis of the complementarity principle.”
Duterte’s administration first made calls to suspend the ICC probe in November 2021, which the ICC denied, allowing ICC prosecutor Karim Khan to proceed.
The ICC also rejected an appeal from the Marcos administration and resumed investigations in July. (KF)