Rights lawyers tackle cases of drug war victims, ICC jurisdiction | ANC

The Jurisdiction of ICC is to investigate, if warranted, prosecute individuals charged

with most heinous crimes (four types of crimes)

Atty. Ma. Christina Conti. May kaso ngayong ang victims ng EJK at nasa ICC.
Preliminary investigation opened in February 2018 and investigation was granted
June 2021.

Status of the case at present: investigation stage. Sa ICC preliminary investigation,

meron bang crimes against humanity? Meron. Nasa second stage na tayo, who is
the most responsible? ICC is in the process of determining who are these people so
that we could serve summons or warrants of arrest before trial can begin.

You mentioned that first stage is meron na, pertaining sa war on drugs. November
2011 – June 2016 which happened in Davao, July 2015 to March 2019 nationwide –
that is the scope of investigation.

Liable of conspiracy because institution of state policies. The killings were pre-
meditated murders. The war on drugs was a massacre on the poor. Kalaban daw ay
droga. Nagkaroon ng planting of evidence. Politically motivated murders pinasok
nadin sa war on drugs.

3 principals according to RPC, by inducement, indispensable cooperation (policy ni

Duterte), direct participation (guilt is personal, doesn’t mean that you are onsite)

Conspiracy = act of one is act of all.

The character itself, crimes against humanity, systematic killing na nilagay ang high
ranking government official.

There are police reports that they neutralized the suspect, they shot the suspect.

The most responsible for crimes against humanity in the acts of murder, President
Duterte or Bato Dela Rosa who was Chief PNP that time.

In the hearing, Duterte said that I will take full responsibility. Is that statement could
help the investigation in ICC. Yes. Admissions before the legislative bodies in PH
could serve well in investigation to determine who is the most responsible. But for
trial, there will be sort of processes to determine the credibility of evidence as
matter of procedure. But pwede magamit sa ICC para sa pagbbukas ng trial sa ICC.

Before 2024 ends, warrant of arrest will be issued by ICC. Yes. But of course there
are processes in ICC that out of our control.

ES Bersamin stated that former president desires to surrender himself before ICC,
the government will neither object to it nor move to block the fulfillment his desire.

PRRD: it could be nice, but they don’t have any jurisdiction.

Colmenares: Interpretation of ES, if ICC will issue WOA and interpol is execute the
WOA, PH government will not object to it and will allow the serving of WOA against
Duterte and whoever is the subject.

If ICC through interpol issues red notice, PH government will cooperate.

Comment of PRRD: Im happy with narration in regards to ICC, and problem is

walang jurisdiction. Bigyan mo muna ako ng jurisdiction. May jurisdiction.

Colmenares: ICC has jurisdiction. When we signed rome statute, Art. 27, ICC
continues to have jurisdiction even the country has been withdrawn if the
proceedings have been instituted before the effectivity of withdrawal. March 2019
effective ung withdrawal. The reason of the provision was ang ggawin nalang is pag
may kaso sila, magwwithdraw nalang sila.

Sa ICC may complementarity clause is precisely this: The ICC can only exercise
jurisdiction when national legal systems are unable or unwilling to prosecute
crimes. This means the ICC has secondary jurisdiction, and national courts have
priority.

May kaso ba o investigasyon ang mga kaso sa ICC? NO. so di matrigger ang
complementarity. Sabi ni Duterte inefficient ang court. Kahit na may kaso ka sa
Pinas pero ito ay inability di makadeliver ng accountability, then ICC continues to
have jurisdiction.

Pag pumirma tayo ng contact, auto-limitation applies. Pacta sunt servanda. Pag di
sumunod ang PH dyan, masamang impact yan sa international community.

In any case, ICC has jurisdiction.

Crimes committed before withdrawal.

Diokno: pre-trial chambers of ICC. In September 2021, they found that there was
reasonable basis to proceed with investigation and it falls under ICC jurisdiction.

De Lima: ang SC mismo, in 2021 case of Pangilinan v. Cayetano. Effect of

withdrawal: withdrawing from Rome Statute does not discharge state party from
obligations it has incurred. A state shall not be discharged by reason of its
withdrawal from obligations arising from statute while it was a party. Its withdrawal
shall not affect any cooperation with the court in connection with criminal
investigations and proceedings prior to the effectivity of withdrawal. Kahit nag
withdraw na committed within the period when it was a state party, covered padin.

PRRD: madami na nagsasalita against me. Let my lawyer speak as well. Atty ni
Duterte si Medialdea.

We withdraw in March 2018, and under that provision we were given a period of 1
year to conduct our investigations.

ES Medialdea: Under the rome statute, ICC has period of 1 yr to conduct

investigation, in fact there was no investigaton to conducted. Second, there was a
 decision form ICC in 2021 a decision where 3 justices said that the investigation 2 of
these dissented for there is no longer on the part of ICC. There was no mention
about jurisdiction.

Nagkaroon ng decision ang ICC, 3 and 2 judges. 2 dissented argued ICC does not
have jurisdiction. Kaya they cannot move here.

Cong Bungalon: We cannot settle the issue of jurisdiction here.

Cong Dan Fernandez: Let ICC do their thing

1. Hofileña, International Criminal Tribunals and The Rome Statute

Rome Statute
₋ The treaty that established the International Criminal Court (ICC)
₋ Established with the purpose to end impunity through the prosecution of:
1. genocide;
2. crime against humanity;
3. war crimes; and
4. crimes of aggression.

International Criminal Court

- An independent and permanent court
- Based in Hague Netherlands

Composition
1. The Presidency. Conducts external relations with States, coordinates judicial
matters such as assigning judges, situations and cases to divisions, and
oversees the Registry's administrative work
2. Judicial. 18 judges in 3 divisions – Pre-Trial, Trial and Appeals – conduct
judicial proceedings
3. The Office of the Prosecutor. Conducts preliminary examinations, investigations,
and prosecutions
4. The Registry. Conducts non-judicial activities, such as security, interpretation,
outreach, support to Defence and victims' lawyers, and more

Jurisdiction of ICC - limited to the most serious crimes of concern to the

international community as a whole, over the following core crimes: Genocide,
crime against humanity, war crimes; and crimes of aggression.

i. Genocide - acts committed with intent to destroy, in whole or in part, a national,

ethnical, racial or religious group.
Examples:
1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
 3. Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group
5. Forcibly transferring children of the group to another group.

ii. Crime Against Humanity – means any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
1. Murder;
2. Extermination;
3. Enslavement;
4. Deportation or forcible transfer of population;
5. Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
6. Torture;
7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
8. Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in paragraph 3, or
other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph or
any crime within the jurisdiction of the Court;
9. Enforced disappearance of persons;
10. The crime of apartheid;
11. Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.

- Attack directed against any civilian population means a course of conduct

involving the multiple commission of acts against any civilian population,
pursuant to or in furtherance of a State or organizational policy to commit such
attack

iii. War Crimes

₋ Serious violations of the laws of war during periods of international or internal
conflict, and violations of conventional or customary international law. The
ICC shall have jurisdiction in respect of war crimes, in particular, when
committed as part of a plan or policy or as part of a large-scale commission of
such crimes.

₋ Armed conflict exists whenever there is a resort to armed force between

States or protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State. International
humanitarian law applies from the initiation of such armed conflicts and
extends beyond the cessation of hostilities until in the case of internal
conflicts, a peaceful settlement is reached.
Examples:
1. Attacking or bombarding undefended towns, villages, dwellings or buildings
which are undefended and which are not military objectives;
2. Killing or wounding soldiers who have laid down their arms or having no
means of defense, have already surrendered;
3. Improperly using the flag of truce, or of the military insignia and uniform of
the enemy or of the United Nations, as well as of distinctive emblems of the
Geneva Conventions, resulting in death or serious personal injury;
4. Transferring directly or indirectly by the Occupying Power of parts of its own
civilian population into the territory it occupies, or of the deportation or
transfer of all or parts of the population of the occupied territory within or
outside its territory;
5. Directing attacks against buildings dedicated to religion, education, arts or
science, historic monuments, hospitals and places where the sick and
wounded are collected, provided they are not military objectives;
6. Killing or wounding treacherously individuals belonging to the hostile nation
or army;
7. Declaring that no quarter will be given;
8. Seizure or destruction of enemy property unless demanded by the exigency
of war;
9. Conscription of the nationals of the hostile party;
10. Pillaging a town or place, even when taken by assault;
11. Employing poison or poisoned weapons;
12. Employing asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;
13. Using expanding bullets and weapons that cause superfluous injury or
unnecessary suffering;

The International Committee of Red Cross mandates the following:

1. To visit and register the names of prisoners of war (POWS);
a. Members of the armed forces,
b. Members of irregular armed forces ,
c. People who take up arms against an invading army ,
d. Certain civilians who accompany the armed forces, such as supply
contractors
e. Members of the merchant marine and civilian aircraft crews

2. To deliver humanitarian aid to civilians in the midst of armed conflict;

3. To trace missing persons;
4. To train armed forces on International Humanitarian Law;
5. To act as go-between to secure prisoner exchanges, repatriation and release
of hostages;
6. To deliver mail and food parcels to POWs.
 ₋ Legitimate Military Targets is one which by its nature, location, purpose, or
use makes an effective contribution to military action and whose total or
partial destruction, capture or neutralization, in the circumstances prevailing
at the time, offers a definite military advantage.

iv. Crime of Aggression

- Planning, preparation, initiation or execution, by a person in a position
effectively to exercise control over or to direct the political or military action of
a State, of an act of aggression which, by its character, gravity and scale,
constitutes a manifest violation of the Charter of the United Nations.
- Act of aggression is the use of the armed forces by a State against the
sovereignty, territorial integrity or political independence of another State, or
in any other manner inconsistent with the Charter of the United Nations.

Office of the Prosecutor under the International Criminal Court

- An independent organ of the Court and is vital its existence
- Responsible for receiving referrals and information on crimes that may have
been committed within the jurisdiction of the Court.
- Empowered by the Statute to conduct investigations on the territory of a State,
request the presence of and question persons being investigated and enter
into arrangements or agreements necessary to facilitate the cooperation of a
State

Head of State Liability under the terms of the Rome Statute

- The Statute shall apply equally to all persons without distinction based on
official capacity (Rome Statute, Art. 27)
- The fact that he is a Head of State or a member of government shall not
exempt him from criminal responsibility. Neither will immunities under
national or international law protect him from prosecution.

Entry into Force

- Publication of the Rome Statute in the Official Gazette is not necessary for
Rome Statute to become effective in the Philippines
- For each State ratifying, accepting, approving or acceding to this Statute
after the deposit of the 60th instrument of ratification, acceptance, approval
or accession, the Statute shall enter into force on the first day of the month
after the 60th day following the deposit by such State of its instrument of
ratification, acceptance, approval or accession.

Withdrawal
- If the case is already under investigation by the ICC, withdrawal from the
treaty will not divest the ICC of jurisdiction.
- It shall not prejudice in any way the continued consideration of any matter
which was already under consideration by the Court prior to the date on
which the withdrawal became effective.
Privileges and immunities
- The Court shall enjoy in the territory of each State Party such privileges and
immunities as are necessary for the fulfillment of its purposes.
- The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall,
when engaged on or with respect to the business of the Court, enjoy the
same privileges and immunities as are accorded to heads of diplomatic
missions and shall, after the expiry of their terms of office, continue to be
accorded immunity from legal process of every kind in respect of words
spoken or written and acts performed by them in their official capacity.

Difference of PH law and ICC.

The ICC does not replace national criminal justice systems; rather, it complements
them. It can investigate and, where warranted, prosecute and try individuals only if
the State concerned does not, cannot or is unwilling to do so genuinely. This might
occur where proceedings are unduly delayed or are intended to shield individuals
from their criminal responsibility. This is known as the principle of complementarity,
under which priority is given to national systems. States retain primary
responsibility for trying the perpetrators of the most serious of crimes.

The ICC can investigate and, where warranted, prosecute and try individuals only if
the State concerned does not, cannot or is unwilling to do so genuinely.

Who can be prosecuted before the ICC?

The ICC prosecutes individuals, not groups or States. Any individual who is alleged
to have committed crimes within the jurisdiction of the ICC may be brought before
the ICC. In fact, the Office of the Prosecutor’s prosecutorial policy is to focus on
those who, having regard to the evidence gathered, bear the greatest responsibility
for the crimes, and does not take into account any official position that may be held
by the alleged perpetrators.

If those who bear the greatest responsibility hold high political or military
office, are they not exempt from prosecution? Can they not be granted
immunity or amnesty?
No one is exempt from prosecution because of his or her current functions or
because of the position he or she held at the time the crimes concerned were
committed. Acting as a Head of State or Government, minister or parliamentarian
does not exempt anyone from criminal responsibility before the ICC. In some
circumstances, a person in a position of authority may even be held responsible for
crimes committed by those acting under his or her command or orders. Likewise,
amnesty cannot be used as a defence before the ICC. As such, it cannot bar the
Court from exercising its jurisdiction.

If the ICC issues an arrest warrant against a current or former head of

state, is it for political reasons?
No. The ICC is a judicial institution with an exclusively judicial mandate. It is not
subject to political control. As an independent court, its decisions are based on legal
criteria and rendered by impartial judges in accordance with the provisions of its
founding treaty, the Rome Statute, and other legal texts governing the work of the
Court.

What does the Presidency do? The Presidency consists of three judges (the
President and two Vice-Presidents) elected by an absolute majority of the 18 judges
of the Court for a maximum of two, three-year terms. The Presidency is responsible
for the administration of the Court, with the exception of the Office of the
Prosecutor. It represents the Court to the outside world and helps with the
organisation of the work of the judges. The Presidency is also responsible for
carrying out other tasks, such as ensuring the enforcement of sentences imposed
by the Court. 1

What do the Chambers do? The 18 judges, including the three judges of the
Presidency, are assigned to the Court’s three judicial divisions: the Pre-Trial Division
(composed of not less than six judges), the Trial Division (composed of not less than
six judges), and the Appeals Division (composed of five judges). They are assigned
to the following Chambers: the Pre-Trial Chambers (each composed of one or three
judges), the Trial Chambers (each composed of three judges) and the Appeals
Chamber (composed of the five judges of the Appeals Division). The roles and
responsibilities of the judges are outlined below, by category of Pre-Trial, Trial, and
Appeals Chambers.

What is the role of the Pre-Trial Chambers?

The Pre-Trial Chambers, each of which is composed of either one or three judges,
resolve all issues which arise before the trial phase begins. Their role is essentially
to supervise how the Office of the Prosecutor carries out its investigatory and
prosecutorial activities, to guarantee the rights of suspects, victims and witnesses
during the investigatory phase, and to ensure the integrity of the proceedings. The
Pre-Trial Chambers then decide whether or not to issue warrants of arrest or
summonses to appear at the Office of the Prosecutor’s request and whether or not
to confirm the charges against a person suspected of a crime. They may also decide
on the admissibility of situations and cases and on the participation of victims at the
pre-trial stage.
What is the role of the Trial Chambers? Once an arrest warrant is issued, the
alleged perpetrator arrested and the charges confirmed by a Pre-Trial Chamber, the
Presidency constitutes a Trial Chamber composed of three judges to try the case. A
Trial Chamber’s primary function is to ensure that trials are fair and expeditious and
are conducted with full respect for the rights of the accused and due regard for the
protection of the victims and the witnesses. It also rules on the participation of
victims at the trial stage. The Trial Chamber determines whether an accused is
innocent or guilty of the charges and, if he or she is found guilty, may impose a
sentence of imprisonment for a specified number of years not exceeding a
maximum of thirty years or life imprisonment. Financial penalties may also be
imposed. A Trial Chamber may thus order a convicted person to make reparations
for the harm suffered by the victims, including compensation, restitution or
rehabilitation.

What are the main functions of the Appeals Chamber? The Appeals Chamber
is composed of the President of the Court and four other judges. All parties to the
trial may appeal or seek leave to appeal decisions of the Pre-Trial and Trial
Chambers. The Appeals Chamber may uphold, reverse or amend the decision
appealed from, including judgments and sentencing decisions, and may even order
a new trial before a different Trial Chamber. It may also revise a final judgment of
conviction or sentence

What does the Office of the Prosecutor do? The Office of the Prosecutor is an
independent organ of the Court. Its mandate is to receive and analyse information
on situations or alleged crimes within the jurisdiction of the ICC, to analyse
situations referred to it in order to determine whether there is a reasonable basis to
initiate an investigation into a crime of genocide, crimes against humanity, war
crimes or the crime of aggression, and to bring the perpetrators of these crimes
before the Court. In order to fulfil its mandate, the Office of the Prosecutor is
composed of three divisions:
▪ The Investigation Division, which is responsible for conducting investigations
(including gathering and examining evidence, questioning persons under
investigation as well as victims and witnesses). In this respect, for the purpose of
establishing the truth, the Statute requires the Office of the Prosecutor to
investigate incriminating and exonerating circumstances equally.
▪ The Prosecution Division has a role in the investigative process, but its principal
responsibility is litigating cases before the various Chambers of the Court.
▪ The Jurisdiction, Complementarity and Cooperation Division, which, with the
support of the Investigation Division, assesses information received and situations
referred to the Court, analyses situations and cases to determine their admissibility
and helps secure the cooperation required by the Office of the Prosecutor in order
to fulfil its mandate.
What does the Registry do? The Registry helps the Court to conduct fair,
impartial and public trials. The core function of the Registry is to provide
administrative and operational support to the Chambers and the Office of the
Prosecutor. It also supports the Registrar’s activities in relation to defence, victims,
communication and security matters. It ensures that the Court is properly serviced
and develops effective mechanisms for assisting victims, witnesses and the defence
in order to safeguard their rights under the Rome Statute and the Rules of
Procedure and Evidence. As the Court’s official channel of communication, the
Registry also has primary responsibility for the ICC’s public information and
outreach activities.

THE PROCESS BEFORE THE ICC

How do cases come before the Court? Any State Party to the Rome Statute can
request the Office of the Prosecutor to carry out an investigation. A State not party
to the Statute can also accept the jurisdiction of the ICC with respect to crimes
committed in its territory or by one of its nationals, and request the Office of the
Prosecutor to carry out an investigation. The United Nations Security Council may
also refer a situation to the Court.

FIRST STEP: PRELIMINARY EXAMINATIONS

The Office of the Prosecutor must determine whether there is sufficient evidence of
crimes of sufficient gravity falling within the ICC’s jurisdiction, whether there are
genuine national proceedings, and whether opening an investigation would serve
the interests of justice and of the victims.

If the requirements are not met for initiating an investigation, or if the situation or
crimes are not under the ICC’s jurisdiction, the ICC’s Prosecution cannot investigate.

SECOND STEP: INVESTIGATION

What happens when a situation is referred to the ICC for investigation?

The Prosecutor determines whether, in his or her opinion, the Court has jurisdiction
with respect to the alleged crimes. Following a thorough analysis of the available
information, the Prosecution decides whether there is a reasonable basis to proceed
with an investigation. Thus, it must establish whether the crime of genocide, crimes
against humanity or war crimes may have been committed and, if so, whether they
were committed after 1 July 2002. The Prosecution must also ascertain whether any
national authorities are conducting a genuine investigation or trial of the alleged
perpetrators of the crimes. Lastly, it must notify the States Parties and other States
which may have jurisdiction of its intention to initiate an investigation.
How is an investigation conducted? The Office of the Prosecutor collects the
necessary evidence from a variety of reliable sources, independently, impartially,
and objectively. The investigation can take as long as needed to gather the required
evidence. If sufficient evidence would be collected to establish that specific
individuals bear criminal responsibility, the Prosecutor would then request Judges of
a Pre-Trial Chamber to issue either summonses to appear or warrants of arrest. The
responsibility to enforce warrants of arrest issued by an ICC Chamber remains with
States. States Parties to the Rome Statute have a legal obligation to cooperate fully
with the ICC. Other States may be invited to cooperate with the ICC and may decide
to do so on a voluntary basis.

Can the Prosecutor decide on his own initiative to open an investigation?

Yes, if the Office of the Prosecutor receives reliable information about crimes
involving nationals of a State Party or of a State which has accepted the jurisdiction
of the ICC, or about crimes committed in the territory of such a State, and concludes
that there is a reasonable basis to proceed with an investigation. Such information
can be provided by individuals, intergovernmental or non-governmental
organisations, or any other reliable sources. The Prosecution must, however, obtain
permission from the Pre-Trial Chamber judges before initiating an investigation
under such circumstances.

Will the ICC prosecute all persons suspected of committing the most
serious crimes? No. The Court will not be able to bring to justice every person
suspected of committing crimes of concern to the international community. The
prosecutorial policy of the Office of the Prosecutor is to focus its investigations and
prosecutions on those who, having regard to the evidence gathered, bear the
greatest responsibility for such crimes.

After gathering evidence and identifying a suspect, the Prosecution requests ICC
judges to issue:
1. an arrest warrant: the ICC relies on countries to make arrests and transfer
suspects to the ICC; or
2. a summons to appear: suspects appear voluntarily (if not, an arrest warrant
may be issued).

If the requirements are not met for initiating an investigation, or if the situation or
crimes are not under the ICC’s jurisdiction, the ICC’s Prosecution cannot investigate.

Who has the power to issue a warrant of arrest or a summons to appear?

After the initiation of an investigation, only a Pre-Trial Chamber may, at the request
of the Prosecution, issue a warrant of arrest or summons to appear if there are
reasonable grounds to believe that the person concerned has committed a crime
within the ICC’s jurisdiction.
What information do the judges need from the Prosecution before they
can issue a warrant of arrest or a summons to appear? When the Prosecution
requests the issuance of a warrant of arrest or summons to appear, it must provide
the judges with the following information:
▪ the name of the person;
▪ a description of the crimes the person is believed to have committed;
▪ a concise summary of the facts (the acts alleged to be crimes);
▪ a summary of the evidence against the person;
▪ the reasons why the Prosecution believes that it is necessary to arrest the person.

What reasons may justify the issuing of a warrant of arrest? The judges will
issue a warrant of arrest if it appears necessary to ensure that the person will
actually appear at trial, that he or she will not obstruct or endanger the
investigation or the Court’s proceedings, or to prevent the person from continuing
to commit crimes.

What happens after a warrant of arrest is issued? The Registrar transmits

requests for cooperation seeking the arrest and surrender of the suspect to the
relevant State or to other States, depending on the decision of the judges in each
case. Once the person is arrested and the Court is so informed, the Court ensures
that the person receives a copy of the warrant of arrest in a language which he or
she fully understands and speaks.

Does the ICC have the power to arrest suspects? The Court does not have its
own police force. Accordingly, it relies on State cooperation, which is essential to
the arrest and surrender of suspects. According to the Rome Statute, States Parties
shall cooperate fully with the Court in its investigation and prosecution of crimes
within the jurisdiction of the Court.

THIRD STAGE: PRE-TRIAL

Initial appearance: Three Pre-Trial judges confirm suspect's identity and ensure
suspect understands the charges.
Confirmation of charges hearings: After hearing the Prosecution, the Defence,
and the Legal representative of victims, the judges decide (usually within 60 days) if
there is enough evidence for the case to go to trial.

What decisions can a Pre-Trial Chamber issue following a confirmation of

charges hearing? Following a confirmation of charges hearing, a Pre-Trial
Chamber may:
▪ decline to confirm the charges; such a decision does not prevent the Prosecution
from presenting a subsequent request for confirmation of the charges on the basis
of additional evidence;
▪ adjourn the hearing and request the Prosecution to consider providing further
evidence or conducting further investigation, or amending the charges because the
available evidence shows that a different crime was committed;
▪ confirm the charges and commit the case for trial; upon confirmation, the
Presidency of the Court constitutes a Trial Chamber responsible for the subsequent
phase of the proceedings: the trial.

FOURTH STAGE: TRIAL

What happens after the confirmation of charges? After the confirmation of
charges, the Pre-Trial Chamber commits the case for trial before a Trial Chamber,
which will conduct the subsequent phase of the proceedings: the trial. Before the
commencement of the trial, the judges of the Trial Chamber consider procedural
issues that may be submitted to them by the parties and hold hearings to prepare
for trial and to resolve procedural matters in order to facilitate the fair and
expeditious conduct of the proceedings.

Where does the trial take place? Trials takes place at the seat of the Court in
The Hague, unless the judges decide to hold the trial elsewhere. This issue has been
raised in several cases. The accused must be present at his or her trial, which is
held in public, unless the Chamber determines that certain proceedings be
conducted in closed session in order to protect the safety of victims and witnesses
or the confidentiality of sensitive evidentiary material.

What happens at the commencement of the trial? At the commencement of the

trial, the charges against the accused are read out to him or her and the Chamber
asks whether he or she understands them. The Chamber then asks the accused to
make an admission of guilt or to plead not guilty

What happens if the accused makes an admission of guilt? First, the Trial
Chamber ensures that the accused understands the nature and consequences of
the admission of guilt, that the admission is voluntarily made by the accused after
sufficient consultation with his or her lawyer and that the admission of guilt is
supported by the facts of the case that are contained in the evidence and charges
brought by the Prosecution and admitted by the accused. Where the Trial Chamber
is satisfied that these conditions have been met, it may convict the accused of the
crime charged. If it is not satisfied that the conditions have been met, the Chamber
shall consider the admission of guilt as not having been made, in which case it shall
order that the trial be continued.

How is the trial conducted? At trial, the Prosecution and Counsel for the Defence
have the opportunity to present their case. The Prosecution must present evidence
to the Court to prove that the accused person is guilty beyond all reasonable doubt.
This evidence may be in the form of documents, other tangible objects, or witness
statements. The Prosecution must also disclose to the accused any evidence which
may show that he or she is innocent. The Prosecution presents its case first and
calls witnesses to testify. When the Prosecution has finished examining each
witness, the Counsel for the Defence is given the opportunity to also examine the
witness. Once the Prosecution has presented all its evidence, it is the turn of the
accused, with the assistance of his or her counsel, to present his or her defence.

Who can present evidence? All parties to the trial may present evidence relevant
to the case. Everyone is presumed innocent unless and until proven guilty according
to law. The Prosecution has the burden of proving that the accused is guilty beyond
all reasonable doubt. The accused has the right to examine the Prosecution’s
witnesses, and to call and examine witnesses on his or her own behalf under the
same conditions as the Prosecution’s witnesses.

Before three Trial judges, the Prosecution must prove beyond reasonable doubt the
guilt of the accused.

Judges consider all evidence, then issue a verdict and, when there is a verdict of
guilt, issue a sentence. The judges can sentence a person to up to 30 years of
imprisonment, and under exceptional circumstances, a life sentence.

Verdicts are subject to appeal by the Defence and by the Prosecutor. Judges can
also order reparations for the victims.

If there is not enough evidence, the case is closed and the accused is released.
Acquittals are subject to appeal by the Defence and by the Prosecutor.

Once the parties have presented their evidence, the Prosecution and the Defence
are invited to make their closing statements. The Defence always has the
opportunity to speak last. The judges may order reparations to victims, including
restitution, compensation and rehabilitation. To this end, they may make an order
directly against a convicted person.

When is the sentence pronounced by the Court? After hearing the victims and
the witnesses called to testify by the Prosecution and the Defence and considering
the evidence, the judges decide whether the accused person is guilty or not guilty.
The sentence is pronounced in public and, wherever possible, in the presence of the
accused, and victims or their legal representatives, if they have taken part in the
proceedings.

What penalties may be imposed by the Court? The judges may impose a
prison sentence, to which may be added a fine or forfeiture of the proceeds,
property and assets derived directly or indirectly from the crime committed. The
Court cannot impose a death sentence. The maximum sentence is 30 years.
However, in extreme cases, the Court may impose a term of life imprisonment.
Where are the sentences served? Convicted persons serve their prison
sentences in a State designated by the Court from a list of States which have
indicated to the Court their willingness to accept convicted persons. The conditions
of imprisonment are governed by the laws of the State of enforcement and must be
consistent with widely accepted international treaty standards governing the
treatment of prisoners. Such conditions may not be more or less favourable than
those available to prisoners convicted of similar offences in the State of
enforcement.

APPEALS AND REVISION STAGE:

When may a decision be appealed? Any party may appeal the decisions of a
Pre-Trial or Trial Chamber. The Prosecution may appeal against a conviction or
acquittal on any of the following grounds: procedural error, error of fact or error of
law. The convicted person or the Prosecution may also appeal on any other ground
that affects the fairness or reliability of the proceedings or the decision, in particular
on the ground of disproportion between the sentence and the crime. The legal
representatives of the victims, the convicted person, or a bona fide owner of
property adversely affected by an order for reparations to the victims may also
appeal against such an order. The Appeals Chamber may reverse or amend the
decision or conviction or order a new trial before a different Trial Chamber.

Does the convicted person remain in custody pending an appeal? Unless

otherwise ordered by the Trial Chamber, a convicted person remains in custody
pending an appeal. However, in general, when a convicted person’s time in custody
exceeds the sentence of imprisonment imposed, the person is released. In addition,
in the case of an acquittal, the accused is released immediately unless there are
exceptional circumstances.

When can a decision be revised? The convicted person or the Prosecution may
apply to the Appeals Chamber to revise a final judgment of conviction or sentence
where:
▪ new and important evidence has been discovered;
▪ it has been newly discovered that decisive evidence, taken into account at trial
and upon which the conviction depends, was false, forged or falsified;
▪ one or more of the judges has committed an act of serious misconduct or serious
breach of duty of sufficient gravity to justify the removal of that judge or those
judges from office under the Rome Statute.

Both the Prosecutor and the Defence have the right to appeal a Trial Chamber's
decision on the verdict (decision on guilt or innocence of the accused) and the
sentence.

The victims and the convicted person may appeal an order for reparations.

An appeal is decided by five judges of the Appeals Chamber, who are never the
same judges as those who gave the original verdict.
The Appeals Chamber decides whether to uphold the appealed decision, amend it,
or reverse it. This is thus the final judgment, unless the Appeals Chamber orders a
re-trial before the Trial Chamber.
Complementarity
The ICC is intended to complement, not to replace, national criminal systems; it
prosecutes cases only when States do not are unwilling or unable to do so
genuinely.

Cooperation
As a judicial institution, the ICC does not have its own police force or enforcement
body; thus, it relies on cooperation with countries worldwide for support, particularly
for making arrests, transferring arrested persons to the ICC detention centre in The
Hague, freezing suspects’ assets, and enforcing sentences.

What are the exceptions/immunity for heads of state? The International

Criminal Court (ICC) does not provide exceptions for heads of state, as all
individuals are held to the same standards under the Rome Statute:
 Article 27
The Rome Statute states that all individuals are subject to the same standards,
regardless of their official capacity.
 Article 98

All state parties to the Rome Statute have waived the immunities of their officials
before the ICC.
However, there are some considerations to keep in mind when it comes to ICC
arrest warrants for heads of state, including:
 Non-cooperation
If a country refuses to execute an arrest warrant, the ICC can request that the UN
Security Council take action. However, a permanent member of the UN Security
Council could veto this action

Republic Act 9851

- A law passed by the Philippines Congress to penalize crimes against
international humanitarian law, genocide and other crimes against humanity.

Pangilinan v. Cayetano
Facts: The case revolves around the Philippines’ withdrawal from the Rome
Statute, the treaty establishing the International Criminal Court (ICC), a significant
issue touching on the country’s commitment to international law and the division of
foreign policy powers under the Philippine Constitution. The withdrawal was
initiated by President Rodrigo Duterte without the concurrence of the Philippine
Senate, prompted by the ICC’s preliminary examinations into the alleged crimes
against humanity linked to the administration’s “war on drugs.”

The genesis of the Philippines’ involvement with the Rome Statute began when it
signed the statute on December 28, 2000, under President Joseph Estrada’s
administration. It was not until August 23, 2011, during Benigno Aquino III’s
presidency, that the Senate concurred in the ratification of the Rome Statute,
leading to its effectivity in the Philippines on November 1, 2011.

The controversy arose when, on February 8, 2018, the ICC’s Prosecutor announced
a preliminary examination into the Philippines’ situation. In response, on March 15,
2018, the Duterte Administration announced its withdrawal from the ICC, and on the
following day, officially transmitted the notice of withdrawal to the United Nations
Secretary-General.

This was met with challenges before the Philippine Supreme Court by Senators and
advocacy groups questioning the constitutionality of the withdrawal devoid of
Senate concurrence, marking an unprecedented legal question on the limits of
executive power in treaty abrogation.

Issues and Ruling:

Whether the withdrawal from the Rome Statute requires the concurrence
of the Philippine Senate. Yes, the withdrawal of the President from the Rome
Statute requires Senate concurrence if the Senate's concurrence was a condition for
the treaty's validity. The Supreme Court emphasized that the President's discretion
to withdraw from treaties is not absolute and must align with the Constitution and
existing laws. If the Senate conditionally concurred with the treaty, then the
President must also secure Senate concurrence for the withdrawal.

The Supreme Court deliberated on the presidential prerogative in treaty withdrawal

and the requisite Senate concurrence. The court acknowledged that while the
Constitution is explicit in requiring Senate concurrence for treaty ratification, it is
silent on treaty withdrawal. This silence, however, does not implicitly grant the
President absolute authority to unilaterally withdraw from international agreements.
The Court observed that such unilateral executive action undermines the system of
checks and balances enshrined in the Constitution and disregards the Senate’s role
in treaty-making as a shared power

Whether the withdrawal was valid. Yes. The withdrawal from the Rome Statute
is considered valid, binding, and effectual as the Supreme Court ruled that the
Philippines had completed the withdrawal process in accordance with the provisions
of the Rome Statute itself. However, the Court also emphasized that the President's
discretion to withdraw from treaties is not absolute and must comply with the
Constitution and existing laws. If the Senate's concurrence was a condition for the
treaty's validity, then the President would need to secure that concurrence for the
withdrawal to be effective. In this case, the Court found that the petitions
challenging the withdrawal were moot, as the withdrawal had already been
completed and acknowledged by the International Criminal Court.

The Supreme Court ruled that the President's unilateral act of withdrawing from the
Rome Statute is constitutional, provided that the withdrawal does not contravene
any existing laws or constitutional provisions. The Court emphasized that while the
President has discretion in foreign policy, this discretion is not absolute and must
align with the Constitution and existing laws. If the Senate's concurrence was a
condition for the treaty's validity, then the President would need to secure Senate
concurrence for the withdrawal. In this case, the Court found that the withdrawal
was valid and did not diminish the protection of human rights within the Philippine
legal system.

In any case, despite the withdrawal, this Court finds no lesser protection of human
rights within our system of laws. Neither do we agree with petitioners' implied
statements that without the treaty, the judiciary will not be able to fulfill its
mandate to protect human rights