On 18 November 2021, the Prosecutor of the International Criminal Court ("ICC" or the "Court"), Mr Karim A.A. Khan QC,
informed ICC Pre-Trial Chamber I that the Republic of the Philippines ("the Philippines") had on 10 November 2021 requested that he defer to the Philippines' "investigations and proceedings" relating to its nationals or others within its jurisdiction "with respect to the alleged crimes against humanity of murder under Article 7(1)(a) of the Statute 'committed throughout the Philippines between 1 July 2016 and 16 March 2019 in the context of the so-called "war on drugs" campaign, as well as in the Davao area between 1 November 2011 and 30 June 2016'" (the "Deferral Request").
The Office of the Prosecutor takes the view that a State requesting deferral under article 18(2) of the Rome Statute must provide information concerning its investigations to support its request. Such information must consist of tangible evidence, of probative value and a sufficient degree of specificity, demonstrating that concrete and progressive investigative steps have been or are currently being undertaken to ascertain the responsibility of persons for alleged conduct falling within the scope of the authorised ICC investigation.
The Office of the Prosecutor also takes the view that a deferral may have a specific or partial effect, rather than a blanket or general effect, on its investigation. Information on national investigations and proceedings therefore informs the Office's assessment of the precise parameters of any deferral. Additionally, any domestic proceedings must be conducted genuinely as required by the Statute.
These principles and approach help to ensure a proper balance between the application of the principle of complementarity, fundamental to the Rome Statute, and the Office of the Prosecutor's ability to discharge, in an efficient and effective way, the responsibilities that the Rome Statute has placed upon it.
Accordingly, and pursuant to rule 53 of the ICC Rules of Procedure and Evidence, the Prosecutor will in the coming days request the Philippines to provide substantiating information regarding the investigations and proceedings referenced in its Deferral Request. The Office of the Prosecutor will request that such information be provided promptly, as envisaged by article 18 of the Rome Statute and as necessary to ensure that there is no impunity for Rome Statute crimes.
Although the Office's investigation regarding the matters referenced in the Deferral Request is temporarily suspended, as per its obligations under the Statute and practice in similar situations, the Office will continue its analysis of information already in its possession and any new information it may receive from third parties. It will also actively assess the need for applications to the Pre-Trial Chamber for authority to conduct necessary investigative steps for the preservation of evidence under article 18(6) of the Statute.
As this process unfolds, the Office will continue to be particularly attentive to the security, safety and wellbeing of victims and witnesses, and the protections and measures foreseen under the Rome Statute in this regard, including potential recourse to article 70 of the Statute where warranted.
The Prosecutor welcomes the willingness of the Republic of the Philippines to engage with the Office of the Prosecutor, and hopes that this engagement will serve as the foundation for effective communication and cooperation in the future. The effective implementation of the Rome Statute is a responsibility shared between the ICC and States, including State Parties to the Rome Statute and other States where the ICC has jurisdiction, such as the Philippines.
The Office of the Prosecutor of the ICC conducts independent and impartial preliminary examinations, investigations and prosecutions of the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Since 2003, the Office has been conducting investigations in multiple situations within the ICC's jurisdiction, namely in Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic (two distinct situations); Kenya; Libya; Côte d'Ivoire; Mali; Georgia, Burundi; Bangladesh/Myanmar, Afghanistan (pending judicial authorization to resume investigation following initial article 18 deferral request) Palestine, and Venezuela (I). The Office is also currently conducting preliminary examinations relating to the situations in Bolivia; Guinea, and Venezuela II; and has completed its preliminary examinations of the situations in Ukraine and Nigeria, which are pending requests to seek authorisation to proceed to investigation.