Dear friends,

Today the Office of the Prosecutor of the International Criminal Court announced it has sought authorization from the court's pretrial chamber to conduct an investigation into the Philippine drug war killings.  The announcement comes a day before ICC Chief Prosecutor Bensouda completes her nine-year term.

It was three years ago last February when Bensouda announced a preliminary examination by the Office of the Prosecutor (OTP) into the Philippine drug war killings.  That March, as you likely know, President Rodrigo Duterte transmitted a withdrawal notice from the Philippines from the ICC's Rome Treaty.  In March of this year, the Supreme Court of the Philippines dismissed court challenges to the withdrawal which argued that Duterte had overstepped his bounds and that the Senate of the Philippines had to ratify the move for it to take effect.  Regardless, the court maintains jurisdiction over crimes within its scope committed prior to one year from Duterte's withdrawal notice, meaning through March 2019.

The announcement also comes amid increased warnings by OTP and other ICC officials as well as advocates that the budget provided them by states parties to the treaty is insufficient for its mission, including its current workload of investigations, cases and examinations.  In December Bensouda announced a finding in her office's Ukraine preliminary examination that called for an investigation, but OTP has yet to seek the actual legal authorization needed from the court's pretrial chamber to conduct one.  So it is encouraging (and a relief) to see her send such a request in the Philippines case.  (You can watch our December 2020 expert forum discussing the ICC's resources and other challenges online here.)

Perhaps such an announcement will come out today or tomorrow about Ukraine.  If not, we can only speculate right now as to the reasons for the different handling.  One possible reason is that the Philippines case involves a situation of ongoing atrocities being committed, whereas the Ukraine case involves allegations from 2013 and 2014.  Another is President Duterte's withdrawal of Philippines from the Rome Treaty, an attack on the viability if not the very existence of the court itself, and an act that could encourage other rights-abusing leaders to follow suit, if not strongly answered.

How the Office of the Prosecutor will prioritize the Philippines investigation is a question that the incoming prosecutor, Karim Khan, will have to decide.  ICC cases are a years-long endeavor under the best of circumstances, much less with the court's tightly-constrained budget, and the current Philippine presidency's hostility toward the investigation.  Still, today's news is a major step forward in the process, and one that will make an impact in the court of public opinion.

Prosecutor Bensouda's announcement of the authorization request is online here.  An article in the Philippine news outlet Rappler is online here.