EXPLAINER: ICC and its authority

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Metro Manila (CNN Philippines, February 3) — The International Criminal Court (ICC) has recently authorized its prosecutor to resume investigation into the country’s controversial drug war, but officials insist that the international body has no authority to proceed.

Over a year after it halted the inquiry, the ICC said it is not convinced that the Philippine government is “making a real or genuine effort” to conduct probes and criminal prosecutions regarding the matter.

Although the Philippine government said it is open to talks on the issue with the court, Justice Secretary Jesus Crispin Remulla said the country will not allow ICC to “impose” anything.

The question, however, is if ICC really does have jurisdiction over the country and its controversial drug war investigation.

What is the ICC?

ICC conducts policies of the Rome Statute – the first permanent treaty made by 160 member countries to end the cycle of criminals being exempted from punishment for “the most serious crimes of concern to the international community.”

The ICC, however, maintains independence from national courts which also allow member states, or countries, to exercise their own authority over crimes within their territory.

“As a court of last resort, it seeks to complement, not replace, national Courts,” the body’s website states.

According to the independent judicial body, there are four “most serious crimes” to affect the global community as a whole which the ICC has authority over – genocide, war crimes, crime of aggression and crimes against humanity.

Crimes against humanity, the larger umbrella where the bloody drug war falls under, is defined as acts — such as murder, enforced disappearance of persons, and those of similar violations — that are committed as “part of a widespread or systematic attack directed against any civilian population.”

The ICC caught wind of the drug war in 2016 when the number of victims under the then “Oplan Tokhang” implemented by ex-president Rodrigo Duterte rose in exceedingly high numbers, with multiple reports of the chief executive citing intention to mass kill those involved in drugs.

In 2017, Filipino lawyer Jude Sabio, then-senator Antonio Trillanes IV and Magdalo representative Gary Alejano filed separate requests to the ICC to convict Duterte of 'mass murder' in the country. ICC began its initial probe the year after.

Not a member state

In the same year ICC began its initial investigation, Duterte formally submitted to the United Nations its written notice of withdrawal from the ICC.

With a one-year waiting period before it takes effect, the Philippines only officially stopped being an ICC member state in March 2019.

Not being a member state, however, does not stop the ICC from its investigation and legal procedures. The ICC files cases against individuals, not by group or country – which means it can continue its probe on Duterte.

In November 2021, Duterte formally requested ICC to stop ongoing investigations, calling for a chance to defend the administration’s actions and for the international body to acknowledge local policies and efforts.

Maintaining the Rome Statute’s policies, the ICC temporarily halted its investigation and asked the Duterte administration for proof that it is genuinely investigating its killings under the violent war on drugs.

According to the Legal Information Institute of the Cornell Law School, the court’s complementary principle means “a case is inadmissible before the ICC if it is currently under investigation by a state with jurisdiction over it.”

However, “when the state is unable or unwilling to proceed with an investigation or where the state investigation is conducted in bad faith such as when it is used to shield the person from criminal responsibility,” ICC has legal jurisdiction over the matter.

After its own analysis, considering the government’s side and stories from victims' families, the pre-trial chamber recently announced that it is “not satisfied that the Philippines is undertaking relevant investigations” that is enough basis for the complementary principle.

‘Working justice system’

After ICC declared it will resume its investigation, the Department of Justice (DOJ), the Philippine National Police (PNP), and other officials leading the anti-drug campaign expressed their disagreement toward the probe.

"Definitely, I do not welcome this move of theirs," Justice Secretary Remulla earlier said. "I will not welcome them [to] the Philippines unless they make clear that they will respect us in this regard."

The PNP maintained it is not hiding anything but will only cooperate with the ICC if it acknowledges that the Philippines has authority to investigate the alleged killings under the Duterte administration's anti-drug campaign.

Senator Ronald "Bato" dela Rosa, the then-PNP chief under the Duterte administration, said he favors the arrest of officials from the ICC if they insist on coming to the country.

For Human Rights Watch (HRW), the ICC can still pursue the probe despite the government's unwillingness to cooperate.

"We've seen many times that the ICC is not permitted into areas where they are conducting investigations, but those investigations are capable of going forward, nonetheless," HRW Deputy Asia Director Phil Robertson told CNN Philippines' The Final Word.

The DOJ recently announced that a United Nations special rapporteur will visit the country next month to assess local investigations into drug war killings.