ICC is barred from immediately probing Duterte

LIFE’S INSPIRATIONS: “… See to it that no one takes you captive through hollow and deceptive philosophy, which depends on human tradition and the elemental spiritual forces of this world rather than on Christ…” (Colossians 2:8, the Holy Bible).


ICC IS BARRED FROM IMMEDIATELY PROBING DUTERTE: Before the critics and political foes of President Duterte start daydreaming that they have already put in motion a deadly investigation that could derail his presidency with the complaint that they filed with the International Criminal Court (ICC) against him and 11 other officials in his government, here’s a surprise coming to them.

Even with the filing of the charges by a Filipino lawyer the other day, the ICC is not about to immediately carry out any investigation against the President. Under Art. 17 of the Rome Statute (the international treaty that created the ICC), it is required to find out first, before it can even start to investigate, whether a case that was brought before it is “inadmissible” or “admissible”.

Art. 17 of the Rome Statute says in part about this issue of “admissibility” or “inadmissibility” of a case that was referred to it, in the following manner: “Having regard to Paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible…”


WHAT ARE THE CASES THAT THE ICC CAN INVESTIGATE? Now, what are the circumstances that make a case—like the one that was filed against Duterte—“inadmissible”, or incapable of being acted upon by the ICC? The aforesaid Article 17 enumerates them.

First is, if 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.

Second is that, if 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.


“SUCCESSIVE JURISDICTION” IN ICC INVESTIGATIONS: The third circumstance is that the person concerned has already been tried for conduct which is the subject of the complaint before the ICC, and a trial by the Court is not permitted under the Rome Statute. The fourth circumstance is that the case is not of sufficient gravity to justify further action by the court.

The foregoing circumstances create what is known as the doctrine of “successive jurisdiction” in ICC, which means that the State where the supposed crime was committed is given the priority right to act on the complaint. If it is shown that the State is already addressing, through its own processes, the acts or issues that have been brought to the ICC, the ICC is not to commence any investigation anymore.

Of course, this rule on “successive jurisdiction”, as Art. 17 has shown, is not absolute, and is susceptible to the exceptions listed therein—which is that, the State is unwilling to carry out its processes to address the acts or issues in question, or, even if it has acted, it has failed to genuinely carry the appropriate proceeding to address them. We will have more of this in succeeding issues.


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