THE end of Fatou Bensouda’s term as prosecutor of the International Criminal Court (ICC) should not have been of much significance to Filipinos. Of more significance was the retirement of Judge Raul Pangalangan, the first Filipino ever to sit as judge of the court that has its seat in The Hague.

But it seems Bensouda was minded to take her investigation of violations of human rights of which President Duterte has been charged a step further by seeking permission to investigate further.

In the first place, one has to contend with the fact that the Statute of the Court limits the prosecutor’s scope of investigation only to the most egregious of offenses affecting the international community. The ICC’s prosecutor will have to show the offenses Duterte is charged with having committed rise to that level. There is also the basic requirement the court becomes relevant only when domestic agencies are unable or unwilling to deal with the alleged offenses. I wonder if that has been established.

Human Rights Watch claims the Philippines has been under investigation by Bensouda since 2018. If she has made a request to the pretrial chamber of the court to proceed with the investigation, then it can only be supposed she has in her hands evidence to justify the continuation and formalization of the probe. The necessity of authority from the pretrial chamber is a structural device to hem in what would otherwise be the vast powers of the prosecutor who, motu proprio, can commence an inquiry.

Notwithstanding the prosecutor’s decision to proceed, however, the state may challenge the exercise of the court’s jurisdiction by establishing its courts and tribunals have jurisdiction over the offenses alleged or charged and are capable of rendering impartial and fair judgment.

There are generally four key considerations the prosecutor must heed: first, a reasonable suspicion of crime or crimes under the court’s jurisdiction; second, the admissibility of the case that depends on the finding of whether domestic agencies are able and willing to investigate and, when warranted, to prosecute; third, the requirement of “sufficient gravity” — that has no concrete indicia and the determination of which is left to the appreciation both of the prosecutor and the pretrial chamber, and fourth, an assessment of the interests of justice.

Like many organs of the UN, the court relies on States for the implementation of its orders, arrest being among these. The pretrial chamber is actually the pivotal body in respect to investigations. And this chamber decides on the basis of a “reasonable basis” to proceed with the investigation. Whatever measures the prosecutor or her deputies or agents may take within the Philippines must have the consent of the state. This is an entailment of sovereignty. But one salutary development in international law has been a notable decline in the use of sovereignty to stonewall international inquiry and investigation.

No, it is not correct to announce outright there will be no cooperation with the ICC. The interests of global respect for human rights are best served by strengthening, not weakening the court, and the United States certainly lacks credibility when it sits in judgment over the conduct of other states as it has refused to submit to the jurisdiction of the ICC. On the other hand, it will be good for our local prosecutorial and judicial bodies to exhibit readiness to do what fairness and justice demand — because no matter the outcome of domestic proceedings, for as long as our agencies and courts are “able and willing” to investigate and to prosecute when so warranted, the doctrine of complementarity — on which most state-parties assented to the jurisdiction of the court — would effectively interdict intervention by the ICC and its prosecutor.