ICC posturing: Assault on country’s sovereignty (6)

Although the withdrawal of the Philippines from the Rome Statute of the ICC took effect on 17 March 2019, as the Court has previously found in the context of the Burundi situation, the Court retains jurisdiction over crimes that are alleged to have occurred on the territory of that State during the period when it was a State Party to the Rome Statute. Moreover, these crimes are not subject to any statute of limitation.

My term as Prosecutor will end shortly. Any authorized investigation in the Philippines will fall to my able successor, Mr. Karim Khan, to take forward. In this context, it is clear that how the Office, under his leadership, will set priorities concerning this investigation will need to take into account the operational challenges arising from the continuing pandemic, the severe limitations on the ICC’s available resources, and the Office’s current heavy work commitments. Indeed, these considerations have been a key component of the discussions I have had with my successor, respecting the transition and handover of the Office’s workload.

As I stated many times before, the Court today stands at a crossroads in several concurrent situations, where the basis to proceed is legally and factually clear, but the operational means to do so are severely lacking. It is a situation that requires not only prioritization by the Office, which is constantly being undertaken, but also open and frank discussions with the Assembly of States Parties, and other stakeholders of the Rome Statute system, on the real resource needs of the Court that will allow it effectively to execute its statutory mandate. There is a serious mismatch between situations where the Rome Statute demands action by the Prosecutor and the resources made available to the Office. As the end of my term approaches, I reiterate my call for a broader strategic and operational reflection on the needs of the institution, and what it is intended to achieve — in short, an honest reflection on our collective responsibility under the Rome Statute to advance the fight against impunity for atrocity crimes. The victims of these egregious crimes deserve nothing less.

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Unmistakable is the fact that the International Criminal Court, contrary to its claim, has not commenced any preliminary investigation on the charges against certain Philippine officials vis-a-vis the allegations of the commission of crime against humanity for murder, as distinguished from the preliminary examination it commenced on whether or not the alleged human rights abuses fall within the crimes proper subject of its jurisdiction; and being so, whether or not the Philippines as State Member is able or unwilling to prosecute the offenders, as admitted by the former ICC Special Prosecutor Fatou Bensouda in her statement of 14 June 2021, which we earlier quoted in full, and for emphasis the pertinent portion thereof is reproduced below, thus:

“The situation in the Philippines has been under preliminary examination since 8 February 2018. During that time, my Office has been busy analyzing a large amount of publicly available information provided to us under Article 15 of the Statute. On the basis of that work, I have determined that there is a reasonable basis to believe that the crime against humanity of murder has been committed on the territory of the Philippines between 1 July 2016 and 16 March 2019 in the context of the Government of the Philippines ‘war on drugs campaign.’”

Crystal clear therefore that by her own admission, Special Prosecutor Fatou Bensouda conducted not a formal preliminary investigation to probe certain Philippine officials to determine probable cause that they may have committed the crime against humanity of murder, but a preliminary examination or inquiry as to whether or not the alleged commission of extrajudicial killings would fall under the predicate crime proper subject of its jurisdiction.

In fact, the Special Prosecutor, again by her own admission in her 14 June 2021 statement, her Office did not make yet a determination as to whether the Philippine government is able or unwilling to prosecute the criminal offenders, whoever they may be, to wit:

“The office does not take a position on any government’s internal policies and initiatives intended to address the production, distribution and consumption of psychoactive substances within the parameters of the law and due process of law, and in the present case, it is duly acting strictly in accordance with its specific and clearly defined mandate and obligations under the statute.”

(To be continued)

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