If you do drugs in my city, I will kill you. Are you confused with what's happening at the International Criminal Court? Don't worry, it's really confusing. The first thing we need to understand is that the International Criminal Court and the treaty it is based on, the Rome Statute, put a premium on national sovereignty. As much as possible, it does not want to encroach on the country's own justice system.
They call that complementarity. If the ICC sees that the justice system at the local level is working just fine, it won't do anything. In this situation, ICC does not have jurisdiction. It does not have the right to investigate. But The ICC is very strict with complementarity.
It will examine whether the justice system is truly working, or if it's just for show. The pretrial chamber stated that it considered whether the domestic investigations and prosecutions of the Philippines... Which brings us to what happened on July 18. Let's review the timeline....as the investigations before the court.
After the preliminary examination, or Stage 1, began in February 2018, Duterte, without consultation and congressional approval, withdrew the Philippines from the ICC, throwing away more than a decade of painstaking efforts to ratify the Rome Statute. The Philippines withdrawal took effect in March 2019, but the drafters of the Rome Statute anticipated this, that powerful men down the line will pull out when they are at risk of being investigated. That's why there is a clause in the Rome Statute which says any process that started before withdrawal will continue even after a country has withdrawn.
In September 2021, ICC opened investigation or step 2. Before Duterte stepped down from the presidency, his advisors and lawyers found a clause that allowed them to ask for a deferral. The Rome Statute allows a country to prove that its justice system is working. In such a situation, evidence must be examined and investigation must be paused.
But after the deferral period, prosecution still insisted that the Philippines was not doing enough. How did the prosecution conclude that the Philippines was not doing enough? They applied the same-person, same-conduct test. Under this test, the investigation of the ICC and the Philippines must must mirror each other.
They must both be looking at the same person and the same type of crime. The prosecutor said the Philippines did not pass this test, therefore, there was no complementarity. In January 2023, the ICC pre-trial chamber made its second decision, which was to side with the prosecutor.
The ICC then reopened investigation. Enter frame? New President Ferdinand Marcos Jr.
Marcus'Solicitor General, Menardo Guevara, hired British barrister Sarah Baffadel, who specializes on the ICC. Baffadel and Guevara went to the appeals chamber to challenge the second decision of the pretrial chamber to reopen the investigation. Then they added a new argument. They argued that under the Rome Statute, withdrawal has no effect on the process, only if it happened after the start of an investigation or step two.
But Duterte withdrew immediately after step one. For Guevara and Bafadel, this already removed the ICC's jurisdiction. But the appeals chamber rejected this appeal. The voting was a close 3-2. The government almost won.
What happened? According to the majority judges of three, the appeal was not exactly right. The appeal challenged jurisdiction when this was not the issue on the table.
It only means that the judges did not want to issue a question on jurisdiction. when it was not asked at the right time. It's very technical. According to the two dissenting judges, the court could have relaxed its rules since proceeded to answer the question which is, does the ICC lose jurisdiction when a country withdraws after step one? For the two dissenting judges, yes, the ICC loses jurisdiction.
This is why although victims won this round, the government had a small win too. Because when the time comes that they can ask this question again, they can use this argument that already convinced two judges. However, Marcos has announced he will now stop engaging with the ICC.
That's it. We have no more appeals pending. We have no more actions being taken. So I suppose that puts an end to our dealings with the ICC.
The bad news for Marcos is, the ICC can look at this latest move as another proof that the government is unable and unwilling to bring true justice. Especially since the appeals chamber said it is correct to apply the same person, same conduct test. What does this all mean?
It's still a long road ahead. Victims have a win-win scenario here. If the government does not conduct a genuine investigation, the ICC will do it. The Rome Statute even allows the ICCs to step aside but still helps Philippine authorities do a genuine investigation. But what is a win for victims is a loss for the perpetrators.
Which is why Marcos faces a difficult question. What is a win for him? Protect the Duterte government but taint his reputation in the international community?
or help obtain justice for those killed and the ones they left behind and prove that he truly cares for human rights. Your move, President Marcos. Filipinos and the whole world are watching.