THE HAGUE, Netherlands – The International Criminal Court (ICC) may soon make its next move on the Philippine investigation, Rappler has learned, but reaching this stage also means it is the first time for Filipinos to confront the frustrating limitations of international justice.

Informed sources indicated that the appeals chamber of the ICC may come out with a decision in the next two to three months on whether the Prosecutor’s investigation into the estimated 27,000 killings in former President Rodrigo Duterte’s drug war and the Davao Death Squad is valid.

If the appeals chamber decides in favor of the Philippine government, the prosecutor has to close its investigation. If the decision goes against the government, the prosecutor may start to request for an arrest warrant if it finds sufficient grounds to do so.

It was the Philippine government that filed an appeal, and whatever the decision is will be final, at least for this issue. “The appeals chamber is the highest chamber at the ICC, so there is no appeal of the decision of the appeals chamber,” ICC Spokesperson Fadi el Abdallah told Rappler in an interview at the court on June 8.

But if, for example, the government loses this round, “it would not preclude them from providing material in the future that could warrant [another] deferral,” Maria Elena Vignoli, senior counsel of the Human Rights Watch international justice program, told Rappler.

This ping-pong on legal processes may be the same complicated process as in the Philippines’ local system, except that the ICC has one fundamental limitation: it does not have police powers.

Even if arrest warrants are issued, the matter of who will make the arrest is a big problem. South Africa, an ICC member country, has now given immunity to Russian president Vladimir Putin when he goes there this August for the Brazil, Russia, India, China and South Africa (BRICS) summit. The ICC issued an arrest warrant against Putin over child deportation in Russia’s invasion of Ukraine.

ICC’s El Abdallah said immunity is a usual diplomatic custom for all visiting heads of state, and that “there is a clear framework in the ICC Rome Statute that allows for these types of matters to be dealt with.”

The ICC’s track record in enforcing warrants, however, is not cause for optimism. If a suspect is not arrested, no trial will happen.

Prospects for the Philippines

Prospects for the Philippines are both good and bad. Good because former prosecutor Fatou Bensouda, who opened the investigation, was bogged down by sanctions from Donald Trump before, and that was seen to have affected the pace of action in the Philippine case.

Karim Khan, the new prosecutor, has been moving quicker than his predecessor and has appointed deputy prosecutors to help speed up the process. In just one year, Khan has managed to both reopen the investigation into the Philippines and convince the appeals chamber not to suspend the process while waiting for its decision.

But the reality is that the Office of the Prosecutor has a limited budget, funded only by voluntary contributions from state parties. It also has its hands full on its special Ukraine investigation.

“We cannot put all the hope for justice in an international court that’s under-resourced and that’s right now preoccupied with what its principals and donors want it to be preoccupied with,” said Ruben Carranza, a Filipino international justice lawyer, at a forum by 1Sambayan on May 4.

“We were worried just slightly. But movement is better than no movement at all,” Kristina Conti, lawyer for a group of drug war widows and an ICC accredited assistant counsel, told Rappler in a Zoom interview from Manila on June 10.

The complicated treaty

A special feature of the ICC is complementarity. It means that it will not intervene if it is convinced that the Philippines’ own justice system is able and willing to do the investigation. 

Prosecutor Khan has been insisting that  the Philippine government has not given substantial proof of a working justice system. The other consideration for complementarity is “same person, same conduct” test, meaning, the national investigation must be looking at the same person and substantially the same conduct being investigated by the ICC. If the government passes the test, the ICC need not proceed as state investigations are given primacy.

Colombia, for example, is a model of complementarity because its creation of its own peace tribunals convinced the ICC prosecutor to close the investigation.

Sarah Bafadhel, the British external counsel hired by the Philippine Office of the Solicitor General (OSG), has expertise on complementarity.

Among others, the appeal argues that the complementarity tests apply only to concrete cases, and not the Philippine situation at the investigation level. Beyond that, the appeal argues that the justice system is working.

That claim, however, is disputed heavily by the local human rights community. For one, the proof submitted to the ICC includes proceedings that are not directly related to the drug war. There is also little movement in the investigation of the Davao Death Squad.

“At least for the purposes of the appeal, the argument is that yes, they are not criminal proceedings, but they lead to, or allow for investigation and identification of potential perpetrators, potential victims and potential witnesses,” Bafadhel told Rappler in an interview from The Hague on June 9.

“For the victims, if you ask them, who do you want prosecuted? Common among the names is Rodrigo Duterte, and none of these proceedings, civil and criminal, lead up to the name of Duterte and even Bato,” Conti said. Bato is Senator Ronald “Bato” Dela Rosa, Duterte’s former police chief and the architect of the drug war.

In defense of the ICC

The ICC also suffers from a sustained disinformation campaign, mostly from its reputation of not being able to punish Western leaders. When Bensouda opened the investigation, a report on Dutch portal Justiceinfo.net on her role in the Gambian regime got traffic from the Philippines, and was distributed by Duterte bloggers to discredit the prosecution.

“You are certainly dealing with people that have some kind of power, and it means you are upsetting some people just by existing and conducting your job. It is totally unacceptable to put out fake news about an institution seeking justice, and at the same time, it seems to me it is unavoidable in our current work,” said El Abdallah.

The ICC is also seen as a potential political tool in the power play of the fragile alliance between Duterte and President Ferdinand Marcos Jr. The Marcos government, after all, is engaging to an extent with the court in this appeal process. Marcos also sometimes gives interviews where he drops criticisms here and there on the abuses in Duterte’s drug war.

“The ICC is a politicized court and this is politics in the international level,” said Carranza in the 1Sambayan forum.

In the same forum, Filipino judge Raul Pangalangan, who retired as an ICC judge in May 2021, said: “We don’t have a police to carry out our orders, but historically, we have found ways to carry out our jurisdiction even without that.”

Drug war victims are always cautioned against high hopes on a process as convoluted as the ICC, but Conti said: “At the moment, it is the most viable option; in fact, it seems it is the only viable option.” – Rappler.com

This reporting was supported by the Journalists For Justice