What’s Happening with the Philippines Preliminary Examination?

The Philippines’ withdrawal from the ICC becomes effective this Saturday, March 17. There are domestic legal proceedings underway that have the potential to nullify the withdrawal. But if the withdrawal goes forward, we are faced with an important question: what happens to the OTP’s preliminary examination?

This is, of course, Burundi redux. In that case, the OTP preserved its ability to investigate crimes committed in Burundi prior to the date of withdrawal by filing a request to open an investigation ex parte and under seal before Burundi’s withdrawal became effective — a request the PTC granted. The OTP may well have done the same thing here. I certainly hope it has — an investigation into the Duterte’s regimes innumerable crimes is wholly warranted.

If the OTP has filed a request to open an investigation, there is no legal question that the ICC can prosecute crimes committed by the Duterte regime before March 17. But what if it has not, or does not, before the Philippines’ withdrawal becomes effective? A number of us explored the issue as Burundi’s withdrawal drew near, and Sergey Vasiliev, Dov Jacobs, and yours truly each argued (on slightly different grounds) that the OTP would no longer be able to investigate pre-withdrawal crimes. Amnesty International and Beitel van der Merwe took the contrary position.

I remain convinced — not surprisingly — that Sergey, Dov, and I are right. I hope we don’t have to find out whether the Court agrees with us.