On 14 December 2020, the Office of the Prosecutor (“OTP” or “Office”) of the International Criminal Court (“ICC”) published the Report on Preliminary Examination Activities (“Report”). In this short reflection, I will discuss the situation in The Philippines which is very complex, since, on one hand, the prosecution and the repression of crimes concerning drugs are based on “lawful” motives, and, on the other hand, the modality of this “war” seems to have exceeded the limit of tolerability of international community. This article will consider two procedural points: the issues of jurisdiction and the criteria of admissibility required by the Rome Statute.
The situation of The Philippines: A brief account
On 30 June 2016, Rodrigo Duterte, in his official inauguration speech as 16th President of the Republic of The Philippines, reaffirmed his will to fight criminality and drug trafficking, stating that “The fight will be relentless and it will be sustained”. Later, on 03 August 2016, the UNODC Executive Director expressed “greatly concerned by the reports of extrajudicial killing of suspected drug dealers and users in the Philippines”.
On 13 October 2016, Prosecutor Fatou Bensouda highlighted that these types of killings “may fall under the jurisdiction of ICC if they are committed as part of a widespread or systematic attack against a civilian population pursuant to a State policy to commit such an attack”. Thereby the preliminary examination was opened on 8 February 2018, when the OTP received a total of 52 communications pursuant to Article 15, concerning crimes allegedly committed since 2016. As underlined in the 2020 Report of the OTP (par. 181-182), the Situation is focused on the “nationwide anti-drug campaign” by the Philippine National Police (“PNP”): “In the context of the campaign, PNP forces have reportedly conducted tens of thousands of operations to date, which have reportedly resulted in the killing of thousands of alleged drug users and/or small-scale dealers”.
A concise introduction on the “preliminary examination”
The preliminary examination of a situation may be initiated by the OTP taking into account any information on crimes within the jurisdiction of the Court. These crimes are summarized in Article 5 of the Rome Statute (“Statute”). As highlighted in the Policy Paper on Preliminary Examination (“Policy Paper” or “Paper”), the Office may receive information on crimes from multiple sources: “a) information sent by individuals or groups, States, intergovernmental or non-governmental organisations; (b) a referral from a State Party or the Security Council; or (c) a declaration accepting the exercise of jurisdiction by the Court pursuant to Article 12(3) lodged by a State which is not a Party to the Statute” (Paper, par. 4). Once a situation has been identified for preliminary examination, the OTP follows a “statutory-based approach” (Paper, par. 77) and needs to ascertain the following fundamental requirements: jurisdiction, admissibility (comprehends complementarity and gravity) and interest of justice. Subsequently, to start an investigation, the Prosecutor needs to submit to the Pre-Trial Chamber a request for authorization together with any supporting material collected. Pursuant to Articles 15(3) and 53(1) the standard proof for requesting this authorization is a “reasonable basis”.
The action of the OTP is inspired by the principles of independence, impartiality, and objectivity. First, according to Article 42(1) the OTP “act[s] independently as a separate organ of the Court”, and pursuant to Regulation 13 of the Regulations of the OTP, “the Prosecutor shall ensure that the Office and its members maintain their full independence”. Second, impartiality is implicitly contained in Article 21(3). Third, in accordance with Article 54(1), the OTP has a duty to act with respect to objectivity, incriminating and exonerating circumstances equally in order to establish the truth.
Finally, it is important to recall one point: A preliminary examination is not an investigation. At the preliminary examination stage, the OTP “does not enjoy investigative powers, other than for the purpose of receiving testimony at the seat of the Court, and cannot invoke the forms of cooperation specified in Part 9 of the Statute from States” (Paper, par. 85). Hence, a preliminary examination is essentially a phase of evaluation of the information available in order to understand if there is a “reasonable basis” to proceed with an investigation.
Procedural aspects of the Situation in The Philippines
There are no issues on jurisdiction ratione materiae, ratione loci, ratione personae. The OTP has focused in particular on the alleged crimes against humanity under Article 7, in particular crimes of murder (Article 7(1)(a), torture (Article 7(1)(f) and the infliction of serious physical injury and mental harm as other inhumane Acts (article 7(1)(k), presumably committed in the Philippines territory by Philippine authority.
Jurisdiction ratione temporis is more complicated. On 17 March 2018, in accordance with Article 127 of the Rome Statute, the Government of the Philippines deposited a written notification of withdrawal from the Statute with the UN Secretary-General, which took effect on 17 March 2019. Therefore, the period when the Philippines was a State Party to the Statute results to be from 1 November 2011 to 16 March 2019. Even though the ICC has already dealt with the case of withdrawal from the Rome Statute (see the Situation of Burundi), there is a significant difference: While the case of Burundi was in the phase of the authorization of an investigation under Article 15, the Philippines situation is still in the phase of the preliminary examination. More significantly, the decision of the Pre-Trial Chamber on Burundi was issued on 25 October 2017, just two days before the withdrawal took effect. Differently, the withdrawal of the Philippines became effective on 17 March 2019.
The other fundamental procedural issue is to reach the admissibility of Article 17(a)-(c), namely to examine if: 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; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.
In 2018 three police officers were investigated, processed, and sentenced with the penalty of reclusion perpetua by the Caloocan City Regional Trial Court (murder of Kian Delos Santos), and in another double-murder case (Carl Angelo Arnaiz and Reynaldo de Guzman) a warrant of arrest was issued on two suspect policemen.
Moreover, in June 2020 the creation of an “inter-agency panel” was announced, with the aim to reinvestigate deaths in drug-related police operations. Furthermore, there was Senate Committee hearings, administrative cases against policemen, writ of amparo, cases brought in front of the Ombudsman. Although in principle only national investigations could trigger the application of article 17(1)(a)-(c), these factors could be taken into consideration: “out of an abundance of caution the Office is also examining national developments which appear to fall outside the technical scope of the term national criminal investigations” (Report, par. 193).
At the end of the Report, the OTP anticipates reaching a decision on whether to seek authorisation to open an investigation into the situation in the Philippines in the first half of 2021 (Report, par. 197). Indeed, following the Policy Paper, “the Prosecutor must continue the examination until the information provides clarity on whether or not a reasonable basis for an investigation exists” (Paper, par. 90) and there is no temporal limit.
Hitherto, at least three questions emerge from this situation:
1) What are the pitfalls of a relentlessly harsh policy of “zero tolerance” in The Philippines and to what extend international criminal law can influence these domestic policies?
2) Is the precedent of Burundi really suitable in the Situation of the Philippines, if the Prosecutor decides to request the authorization of an investigation under Article 15?
3) How inflexible are the criteria of admissibility of Article 17 and the concept of “relevant national proceedings”?
The coming year could give us answers, and this could lead to a historical precedent. One thing is certain: in such a framework the issue is essentially procedural. What must be clear is who should bring justice: The Philippine authorities or the ICC? The world, and above all The Philippines, are waiting.
Giovanni Chiarini is an Italian Attorney at Law, Bar Council of Piacenza (Italy), and PhD candidate at the University of Insubria of Como and Varese (Italy). His research is focused on the juridical nature of the International Criminal Procedure.