Blatant ICC Oversight: Duterte’s Case and the

Blatant ICC Oversight: Duterte’s Case and the | Daily Tribune

A compelling reason for pursuing a jurisdiction challenge before the International Criminal Court (ICC) is that it would not only affect the trial of former President Rodrigo Duterte but address the interference of a foreign court in a fully functioning democracy.

Some eminent justices of the Tribunal had long indicated that the umbrage of the ICC over the country was not required and it violated its own rules with the overreach.

From the statement that the ICC does not have jurisdiction over the country, the Palace took the position that the Tribunal retained authority over the country in cases before 2019 when the government withdrew from the Rome Statute.

Hauling a Filipino before the ICC with the assistance of local authorities is a stinging slap to the Philippine judiciary which is being trampled on by the hubris of the international body that was initially intended to prosecute war crimes.

Presiding officer Judge Marc Perrin de Brichambaut of France and Judge Gocha Lordkipanidze of Georgia delved extensively into the ICC’s lack of authority over the Philippines.

The two magistrates voted in ICC Pre-Trial Chamber I to deny the continuation of the investigation into the war on drugs but the three other judges allowed the Prosecutor to pursue the inquiry.

In the dissenting view, the Prosecutor cannot commence the process of triggering the jurisdiction of the Court “once a withdrawal has become effective and the State in question is no longer a Party to the Statute.”

The dissent contested the timing of the investigation’s commencement into the war on drugs and the accompanying extrajudicial killings.

“The Court’s jurisdiction must be triggered before the withdrawal has become effective. Put differently, once the State’s withdrawal has become effective, the Prosecutor can no longer open an investigation,” the magistrates indicated in their joint position.

Bearing in mind that the Rome Statute is an international treaty and an international criminal code at the same time, two concomitant interests may be discerned when a State withdraws from the Statute.

Article 127 of the Statute guarantees to State Parties the right to withdraw from the Statute that respects the “fundamental right of States to decide whether they want to be bound by a treaty or not.”

According to their verdict, when the former Prosecutor (Fatou Bensouda) submitted her request for authorization of an investigation on 24 May 2021, the Philippines was no longer a Party to the Statute, its withdrawal having become effective on 17 March 2019.

“Cooperation duties of the withdrawing State are limited to investigations and proceedings that have commenced prior to the date on which the withdrawal became effective,” thus said the magistrates.

It was further noted that the Pre-Trial Chamber issued its Article 15(4) decision, authorizing the commencement of the Prosecutor’s investigation, on 15 September 2021, more than two years after the Philippines’ withdrawal took effect.

In the appeal brief of the Solicitor General of the Philippines seeking the termination of the ICC probe, the government noted its withdrawal took effect in March 2019 while the Prosecution’s preliminary examination of the situation was declared to still be at Phase 2.

The government’s lawyer indicated that it was in this phase that the Prosecution was considering “whether the preconditions to the exercise of jurisdiction under Article 12 are satisfied.”

As such, at the time, the Prosecution had not yet made a final determination as to whether the Court even had jurisdiction over the Philippine situation.

The Philippines submitted that the ICC erred in finding that it could exercise its jurisdiction on the basis that the Philippines was a State Party at the time of the alleged crimes, despite its subsequent withdrawal from the Statute.

Both ICC magistrates sided with the Philippine view.

“We consider that the Pre-Trial Chamber erred in law in concluding that the Court had jurisdiction over the Philippines situation despite the Philippines’ withdrawal from the Rome Statute,” their joint dissent indicated.

As a result, we would have granted the Philippines’ first ground of appeal and found that the Court cannot exercise jurisdiction in the Philippines situation.

Consequently, we would have found the remaining grounds of appeal moot.

The summary was powerful, saying they could have “directed the Pre-Trial Chamber to withdraw its authorization for the Prosecutor’s investigation and discontinue all proceedings.”

Two or more wrongs don’t make a right as in the case against Duterte.