The Duterte government claims that withdrawing from the Rome Statute would make Duterte’s case moot and academic.

Malacanang officials would do well to follow closely the ongoing case of Burundi before the International Criminal Court (ICC) for three reasons.

First, because the Burundi government had also withdrawn from the Rome Statute but that did not stop the investigation by the International Criminal Court.

The Rome Statute is the legal basis for the creation of the ICC.

The ICC is a special court created for the sole purpose of trying individuals who commit atrocious crimes such as mass murder using state forces. This is in contrast to the focus of the International Court of Justice (ICJ) which holds governments that commit crimes against other nations to account.

Second, because the prosecutor in the Burundi case, Fatou Bensouda, is the same one looking into the case of Duterte and 11 others, namely:

1. Foreign Secretary Alan Peter Cayetano;
2. Justice Secretary Vitaliano Aguirre;
3. Senate Blue Ribbon Committee chair Richard Gordon who also happens to chair the Philippine Red Cross.
4. Speaker of the House Pantaleon Alvarez;
5. Philippine National Police Director General Ronald de la Rosa;
6. Solicitor General Jose Calida;
7. National Bureau of Investigation Director Dante Gierran;
8. Former Interior and Local Governments Secretary Ismael Sueno;
9. Police Superintendent Edilberto Leonardo;
10. Police Superintendent Royina Garma;
11. Senior Police Officer 4 Sanson “Sonny” Buenaventura

And third, one of the pre-trial judges in the Burundi case is our very own – Raul Pangalangan, former dean of the University of the Philippines College of Law and former publisher of the Philippine Daily Inquirer.

The case of Burundi may have set a precedent on the issue. (Besides, why would presidential spokesman Harry Roque, an expert on International Law, raise the possibility of lawyering for Duterte before the ICC.)

An article written by Kenyan human rights lawyer Darleen Seda for “D+C”, the Development and Cooperation magazine published by the German government, sheds light on the Burundi case.

Seda describes Burundi as an African nation with some 10 million residents (NOTE: two million less than the population of Manila). It had been experiencing “severe violence” since April 2015. “The crisis was triggered when President Pierre Nkurunziza announced that he would run for a third term in office in spite of constitutional term limits,” Seda said.

In May 2015, ICC Prosecutor Fatou Bensouda announced she was conducting a “preliminary examination” on “the situation in Burundi”, where government and state forces were accused of killing over a thousand people following a state crackdown on dissent.

A year after Bensouda’s announcement, Burundi president Pierre Nkurunziza declared that Burundi was withdrawing from the Rome Statute. Therefore the ICC no longer had jurisdiction. His government would also not cooperate with any investigation.

End of story.

Or so Nkurunziza thought.

That did not stop the ICC.

Seda wrote in “D+C” early this year:

“The ICC, which is based in The Hague, disagrees however. It argues that it has jurisdiction over all crimes allegedly committed while Burundi was a member state to the Rome Statute. The ICC view is that, once a state has accepted its jurisdiction, it remains bound for as long as it continues to be a member. Essentially, this jurisdiction runs from the time a state ratifies the Rome Statute to at least one year after a withdrawal notification. The acceptance of such jurisdiction thus remains unaffected even when a state withdraws.”

Seda is right.

A look at the ICC website shows that the Burundi case has now moved to the second stage—from “Preliminary Examinations” to “Situations under Investigation”.

Recall that in May 2015, ICC Prosecutor Bensouda had announced she was conducting a “preliminary examination” of the situation in Burundi and the following year 2016, Burundi announced its withdrawal from the ICC.

On October 25, 2017 — two days before Burundi’s withdrawal took effect — three ICC judges authorized Bensouda “to open proprio motu investigation”. This is the second stage of any ICC investigation.

The ICC explained that while it could no longer investigate any crimes committed after Burundi’s withdrawal, it can investigate crimes that took place starting from December 1, 2004 when Burundi became a signatory member:

“The ICC may therefore exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Burundi or by its nationals from 1 December 2004 to 26 October 2017.

In its decision authorising an investigation, the Chamber found a reasonable basis to believe that State agents and groups implementing State policies, together with members of the “Imbonerakure” launched a widespread and systematic attack against the Burundian civilian population.”

The ICC issued a press release in November 2017 further explaining why it did not stop the investigation:

"Press Release : 9 November 2017 | Ikirundi, Kiswahili

ICC judges authorise opening of an investigation regarding Burundi situation

Today, 9 November 2017, Pre-Trial Chamber III of the International Criminal Court (“ICC” or “Court”), composed of Judges Chang-ho Chung (Presiding Judge), Antoine Kesia-Mbe Mindua and Raul C. Pangalangan, issued a public redacted version of its decision authorising the ICC Prosecutor to open an investigation regarding crimes within the jurisdiction of the Court allegedly committed in Burundi or by nationals of Burundi outside Burundi since 26 April 2015 until 26 October 2017. The Prosecutor is authorised to extend her investigation to crimes which were committed before 26 April 2015 or continue after 26 October 2017 if certain legal requirements are met.

The decision was first issued under seal on 25 October 2017. The Chamber accepted, exceptionally, after ordering the Prosecutor to provide additional information, to conduct the authorisation proceedings under seal and only with the participation of the Prosecutor, in order to attenuate risks to the life and well-being of victims and potential witnesses. The Prosecutor was in addition exceptionally granted a limited delay of 10 working days in notifying the initiation of the investigation to States normally exercising jurisdiction over the alleged crimes in order to prepare and implement protective measures for victims and potential witnesses to mitigate the potential risks.

The Pre-Trial Chamber found that the Court has jurisdiction over crimes allegedly committed while Burundi was a State party to the ICC Rome Statute. Burundi was a State Party from the moment the Rome Statute entered into effect for Burundi (1 December 2004) until the end of the one-year interval since the notification of Burundi’s withdrawal (26 October 2017). The withdrawal became effective on 27 October 2017. Accordingly, the Court retains jurisdiction over any crime within its jurisdiction up to and including 26 October 2017, regardless of Burundi’s withdrawal. As a consequence, the Court may exercise its jurisdiction even after the withdrawal became effective for Burundi as long as the investigation or prosecution relate to the crimes allegedly committed during the time Burundi was a State Party to the Rome Statute. Moreover, Burundi has a duty to cooperate with the Court for the purpose of this investigation since the investigation was authorised on 25 October 2017, prior to the date on which the withdrawal became effective for Burundi. This obligation to cooperate remains in effect for as long as the investigation lasts and encompasses any proceedings resulting from the investigation. Burundi accepted those obligations when ratifying the Rome Statute."

You can read the rest by clicking here.

Now, Bensouda is the same ICC Prosecutor who announced last month (February 8) that she was “opening Preliminary Examinations into the situations in the Philippines and in Venezuela.”

Just like what she did with Burundi.

She said:

“Following a careful, independent and impartial review of a number of communications and reports documenting alleged crimes potentially falling within the jurisdiction of the International Criminal Court (“ICC” or “the Court”), I have decided to open a preliminary examination…”

The preliminary examination of the situation in the Philippines will analyse crimes allegedly committed in this State Party since at least 1 July 2016, in the context of the “war on drugs” campaign launched by the Government of the Philippines. Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.”

You can listen to her announcement below:

Watch more in iWantv or TFC.tv

Duterte should have taken the advice of then Foreign Secretary Perfecto Yasay who, back in November 2016, recommended the Philippines withdraw from the ICC.

Yasay had given this advice after ICC Prosecutor Bensouda issued a statement in October 2016 – three months after Duterte assumed the presidency – that her office was closely watching any Philippine official “ordering, requesting, encouraging or contributing” to committing crimes against humanity.