Pivotal issue in Duterte’s ICC case
Comments long and short, wide and narrow, partisan and neutral on the indictment for the crime against humanity of mass murder, arrest in the Philippines, airlift via a chartered jet to, and detention in The Netherlands of former president Rodrigo R. Duterte had been essayed, broadcasted, debated, and gossiped ad nauseam. I think it is time to tackle what I believe is the pivotal legal issue: The jurisdiction of the International Criminal Court (ICC) to conduct the trial and pass judgment on Duterte.
QUESTIONING THE VALIDITY OF THE ALLEGED “KIDNAPPING” OF DUTERTE is, I think, a long shot as the ICC had already settled that issue in similar other cases. Nonetheless, I cannot blame the lawyers for raising every conceivable angle, including his frail medical condition, to secure his immediate release. Ironically, though, such angles may, if denied, merely delay his release should he be acquitted after trial on the merits.
To understand this pivotal issue, a short background is necessary.
Under the Rome Statute that created the ICC, the ICC’s Office of the Chief Prosecutor (OCP) has two years from the effective date of a state’s withdrawal to conduct its preliminary examination and to apply in the three member ICC Pre Trial Chamber (PTC) for authority to conduct an official investigation. Thereafter, it could ask for a warrant of arrest in the PTC against a suspect charged with a crime punishable by the ICC statute.
Undisputedly, the Philippine withdrawal from the ICC took effect on March 17, 2019. On May 24, 2021, then ICC chief prosecutor Fatou Bensouda petitioned the PTC for authority to conduct a preliminary investigation of the “situation” prevailing in the Philippines from Nov. 1, 2011 to March 16, 2019, a period when the Philippines was still an ICC member. On Sept. 15, 2021, the PTC granted the petition.
Note that both May 24, 2021 and Sept. 15, 2021, are more than two years from the effectivity of the Philippine withdrawal on March 17, 2019.
Thus, the investigation and trial could no longer be conducted for being barred by the two year prescriptive period. Nonetheless, the OCP argued that the prescriptive period had not been breached because Bensouda actually started her preliminary examination on Feb. 8, 2018, while the Philippines was still an ICC member.
THE PTC DENIED THE PETITION OF THE PHILIPPINES to stop new ICC Chief Prosecutor Karim Khan (who replaced Bensouda) from continuing the investigation. The Philippines appealed this denial. However, the five member ICC Appeals Chamber (AC), voting 3 2, denied the appeal because the Philippines had not shown genuine willingness and ability to investigate and prosecute domestically the Philippine “situation” involving alleged crimes against humanity.
Significantly, the AC’s majority of three judges refused to take up the issue of the two year prescriptive period because the Philippine appeal raised only the issue referring to the so called subsidiarity principle, that is, whether the Philippines was “unwilling or unable genuinely to carry out the investigation” of the crimes complained of. So, the majority ruled that the Philippines was not willing or able to genuinely carry out the investigation. Not having been raised in the appeal, the two year prescriptive issue, the majority held, could not be legally resolved.
ON THE OTHER HAND, THE MINORITY OF TWO JUDGES (one of whom has already retired) insisted that the ICC did not acquire jurisdiction because, to repeat, Bensouda petitioned the PTC for authority to conduct a preliminary examination only on May 24, 2021, that was granted only on Sept. 15, 2021, both dates being more than two years after our withdrawal from the ICC took effect on March 17, 2019. In short, the minority believed that the reckoning of the two year period should begin from the date the PTC granted the OCP the authority to conduct the preliminary investigation, not from the date the OCP actually started its own examination.
IF DUTERTE AND HIS LAWYERS CAN CONVINCE THE ICC that the two-year prescriptive period has been breached, he could be freed on a motion to dismiss or its equivalent pleading. Au contraire, should the ICC deny his motion or decide to defer consideration thereof till after trial on the merits, Duterte may be detained for many years before judgment on the merit could be reached. Given his advanced age and frail health, could he last that long?
In my Dec. 11, 2023 piece, I respectfully agreed with the minority’s position because the OCP is not an integral part of the ICC. Therefore, the OCP’s unilateral examination that began on Feb. 8, 2018, could not be counted as the start of the two year prescriptive period. If this is not so, why is the OCP required to secure authority from the PTC to start the investigation?
I rendered that opinion based on Philippine law. However, in many jurisdictions, especially in Europe, the prosecutors are deemed parts of the judicial system. Thus, their investigations may be included in the judicial process. If the ICC uses this system, then Bensouda’s examination complied with the two year limitation. And the prescriptive issue cannot save Duterte.
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