As the Prosecutor of the ICC, Mrs. Fatou Bensouda, declared in the event of the opening of the preliminary examination into this situation: “I emphasise that a preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute. Specifically, under article 53(1) of the Rome Statute, I, as Prosecutor, must consider issues of jurisdiction, admissibility and the interests of justice in making this determination.”
Article 53 states the cases in which an investigation could be initiated, and it makes a reference to Article 17. Concerning the Philippines’ situation, two paragraphs of this article are interesting in particular; indeed, according to Article 17, paragraphs a) and b): “[…] the Court shall determine that a case is inadmissible where: (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.”
Hence, in order to leave the fact out of the ICC’s jurisdiction, Duterte’s government should result active in prosecuting and punishing who has been involved in the crimes linked to the drug war. And this is a point of friction between the Philippines’ authorities on the one side, and the civil society and human rights activists on the other.
Indeed, the anti-drug campaign has frequently been blamed for the quantity of extrajudicial killings carried out by the police in poor communities and the frequent absence of punishment for the perpetrators of this crime. This is notably the case of the deaths of teenagers under police custody last August 2017, which generated a public protest against Tokhang.
The facts of August 2017 have been a turning point in President Duterte’s strategy in his war on drugs; after an increased public pressure, he removed the police from the operations of the anti-drug campaign, and he transferred the mandate to the Philippine Drug Enforcement Agency.
After a brief period, the police have been included again in the anti-drug campaign in January 2018, following the implementation of a new set of rules which should have restored trust in them. A rigorous retraining, a numerical and temporal limit for the police operations (which should be conducted by a group of four policemen only on weekdays and during office hours), the possibility to monitor the Tokhang operations by the public, and the essential element of verified preliminary intelligence reports are the basic ingredients for this “extreme” makeover which should have made the police as the central focus for the eradication of drug and for the trust of the population again.
In the event a policeman violates the new guidelines, he will be relieved from his post. The same thing shall happen for the police provincial director and regional director in case several precinct commanders are found guilty of violating the new rules.
After the introduction of the new regulation, the police forces reported a decrease of the episodes of extrajudicial killings during the Tokhang operations.
But the locals and foreign human rights groups remain skeptical about this claim; indeed, there is a widespread conviction that the degree of violence of the Tokhang operations just superficially changed, and the probable involvement of the government in this situation contributed to disseminate a sense of insecurity among the population and to (case in point) attract the attention of the ICC.
President Duterte and other governmental authorities frequently assured that the Philippines’ authorities will investigate and eventually prosecute crimes, but this did not leave the Philippines out of ICC’s preliminary examination.
A month after the preliminary examination was announced by the ICC, president Duterte stated he will withdraw the Philippines from the Rome Statute, because of the “baseless, unprecedented and outrageous attacks” by UN officials and an attempt by the ICC prosecutor to seek jurisdiction “in violation of due process and presumption of innocence.”
In the event the ICC would find evidence of crimes against humanity, the Philippines’ withdrawal from the Statute would not influence the eventual prosecution of Duterte. In fact, a country’s recess from the ICC Statute takes effect a year after the UN has received the application and, in any case, the termination should not affect the cooperation between the State and the court.