IN 2019, after International Criminal Court (ICC) prosecutor Fatou Bensouda started her preliminary examination of the 2017 allegations of drug killings under President Rodrigo Duterte, the president pulled out the Philippines from the 1998 Rome Statute that created the international court at The Hague in order to avoid the criminal legal process.

This withdrawal put the Philippines outside the routine reach of the ICC, which has jurisdiction over the crimes of genocide, crimes against humanity, war crimes and the crime of aggression. But the prosecutor pointed out that the ICC retained jurisdiction over crimes committed in the Philippines between 2011 and 2019, when it was still a member of the ICC.

The information filed by Mindanao lawyer Jude Sabio (now deceased) against then president Duterte had undergone “preliminary examination,” the first stage in the ICC prosecutorial process, and was moving on to the next stage of “investigation” when in 2021 the Duterte government said it was reexamining several hundreds of cases of drug operations that led to deaths in the hands of the police, hitmen and vigilantes.

As various reports put it, the ICC suspended its “investigation” to give the government time to complete its work. This was because the ICC is merely intended to complement, not replace, national criminal justice systems; it “prosecutes only when States do not or are unwilling or unable to do so genuinely.”

But now, British prosecutor Karim Khan, who succeeded the retired Gambian prosecutor Bensouda in office, said the ICC pre-trial chamber “is not satisfied that the Philippines is undertaking relevant investigations that would warrant a deferral of the court’s investigations… The various domestic initiatives and proceedings, assessed collectively, do not amount to tangible, concrete and progressive investigative steps.”

So the ICC would now like to investigate. Exactly where and how, we have not heard. In a normal ICC investigation, the prosecutor tries to collect both incriminating and exonerating evidence. The defendant is represented by counsel, and all his rights are guaranteed. He is presumed innocent until proven guilty; the burden of proof lies with the prosecutor. The pre-trial judges will issue warrants only if there is enough evidence for a case to go to trial. Before trial, the defendant is only called a “suspect”; only after a case is committed to trial will he be referred to as the “accused.”

But regardless of any assurance of a fair process, Justice Secretary Crispin Remulla says the Philippines has a functioning judicial system that has no place for an ICC investigation, unless they want to take over the judicial system, if not the government itself, which can never happen. “It’s a question of sovereignty,” Remulla pointed out.

At the same time, he admitted that the government has many deficiencies in the system which it is still trying to fix. These include the ongoing reorganization of the National Bureau of Investigation (NBI), and the government hiring of new personnel to strengthen its campaign against crime.

It is possible, although Remulla did not mention it, that the decision of the Interior Secretary Benhur Abalos and Philippine National Police (PNP) chief Gen. Rodolfo Azurin Jr. to require top PNP officers to submit their “courtesy resignations” to cleanse the PNP of any links to the illegal drugs trade is also part of this effort.

By taking a strong position on behalf of the government, Remulla has made it unnecessary for President Ferdinand “Bongbong” Marcos Jr. (BBM) or even for Duterte himself to react to the ICC prosecutor’s move. But through his former spokesman Harry Roque Jr., Duterte said he would not allow himself to be judged by a foreign body so long as a competent Philippine court is willing and able to do so.

Nonetheless, Remulla said he was willing to dialogue with the ICC in a spirit of mutual respect.

This creates an opportunity for a negotiated solution to the possible clash between the proverbial irresistible force and the immovable object. It remains to be seen though who will take the first step to initiate this dialogue.

The Duterte drug war is one “human rights” issue that has attracted so much attention around the world. Official figures say 6,181 have been killed, although various unofficial sources put the casualty list at 30,000 or more. Duterte must have been disappointed that while he expected Marcos Jr. to continue his anti-drug war, the latter has focused his campaign on the treatment and rehabilitation of drug users, rather than on killings.

As Duterte’s close friend and political ally, Marcos Jr. can hardly afford to see Duterte formally charged and tried by the ICC for any crime. But since the ICC does not have a police force or enforcement body of its own, it will have to call on the Marcos government to help serve warrants, carry out arrest, secure the accused, freeze his assets if ordered by the court, transfer him to the ICC detention center at The Hague, and enforce sentence. BBM will have to make sure that whatever action he takes will not be unduly adverse to Duterte, while fully in accord with the norms of a law-abiding member of the international community.