A COURT BUILT ON SAND: A CRITICAL ANALYSIS ON THE

INVESTIGATIVE AND PROSECUTORIAL POWER OF THE

INTERNATIONAL CRIMINAL COURT (ICC)

By: Judge Bienvenido B. Almonte, Jr.1

I. INTRODUCTION:

“The establishment of the Court is still a gift of hope to future generations, and a giant step
forward in the march towards universal human rights and the rule of law.”

– Kofi Annan, Former U.N. Secretary-General at the signing

of the Rome Statute of the International Criminal Court

This passage from Kofi Annan, former U.N. Secretary-General, during the signing
of the Rome Statute, presents a glimmer of hope and optimism that perpetrators of the
most serious crimes against humanity and violators of international humanitarian law will
soon be put to justice. Victims and their families who suffered the devastating effects of
war, armed conflicts, and other hostilities anticipate that criminals will now have their
day in court and be penalized to the full extent of the law. Unfortunately, after two (2)
decades, their hope remains to be a flicker as the internationally created Court that is
supposed to give them justice failed to deliver this to them.

From its inception in 2002 after the adoption of the Rome Statute in 1998, the
International Criminal Court (ICC) now has 900 staff members from approximately 100
States2. Thirty (30) cases reached the Court3. They have already issued thirty (35) arrest
warrants4. From these warrants, seventeen (17) were already detained while thirteen (13)

1
Presiding Judge of the Municipal Trial Court of Pandi, Bulacan. He is currently pursuing Master of Laws
(LL.M) at the University of Santo Tomas-Bulacan State University Consortium.
2
International Criminal Court website, https://www.icc-cpi.int/about, retrieved on December 17, 2021
3
Ibid.
4
Ibid.

1
people remained at large5. They have already issued nine (9) summonses6. Finally, the
Court already issued ten (10) convictions and four (4) acquittals7.

These numbers are perceived to be pale and mirrored the lackluster performance
of the Court despite its almost two (2) decade existence. While regarded as a “super court”
tasked to investigate, prosecute, and punish violators of international humanitarian laws,
the Court failed to live up to its expectations. This is why many countries regard the Court
as strong only on paper but lacked the driving mechanism to enforce its might and power
over war crimes, genocide, crimes against humanity, and crimes of aggression. Many
regard the Court as weak, ineffective, inefficient, and stands on shaky ground built on
sand.

To date, although several investigations and trials are ongoing, these are met with
several criticisms grounded on delay, allegations of bias and partiality, lack of funding,
jurisdictional, structural, and cooperation issues, and challenges that further diminish the
trust and confidence of the people to the mandate of the Court.

This paper will examine and critically analyze the investigative and prosecutorial
power of the Court. The first part will be a discussion on the overview of the ICC. The
second part will dwell on the historical antecedent, the adoption of the member states of
the Rome Statute, and the salient provisions of the Statute. The third part will be a
discussion on the structure and the procedure of the Court. The fourth part will examine
the ICC's jurisdiction and the experience of exercising this jurisdiction in the Philippines,
specifically the ICC's postponed investigation on President Rodrigo Roa Duterte’s war on
drugs. The fifth section will present and enumerate the underlying challenges and issues
that prevent the Court from fully fulfilling its mandate. This paper will also discuss some
of the cases handled and decided already by the Court. Finally, the last part will be the

5
Ibid.
6
Ibid.
7
Ibid.

2
convergence or the analysis of this paper on the effectiveness and the efficiency of the
Court vis-à-vis the enumerated issues and challenges. This paper will also try to propose
and recommend some actions that must be taken by the Court to address these challenges
and further improve its investigative and enforcement power.

II. THE INTERNATIONAL CRIMINAL COURT (“THE ICC” OR “THE

COURT”)

The International Criminal Court or the ICC is a permanent international court

established to investigate, prosecute, and try individuals accused of committing the most
serious crimes of concern to the international community, namely genocide, crimes
against humanity, war crimes, and the crime of aggression.

The Court has jurisdiction over four categories of crimes under international
law: 1. Genocide or the intent to destroy in whole or in part a national, ethnic, racial,
or religious group8; 2. War Crimes or breaches of the law of the war which include
the Geneva Convention’s prohibition on torture, the use of child soldiers, attack on
civilian targets, such as schools and hospitals 9, 3. Crimes against humanity or
violations committed as part of the large scale attacks on civilian populations,
including murder, rape, imprisonment, slavery, and torture 10And finally, 4. Crimes of
Aggression or the use or threat of armed force by the state against the territorial
integrity, sovereignty, and or political independence of another state or violations of
the UN Charter11.

The ICC aims to hold those responsible accountable for their crimes and to help
prevent these crimes from happening again.12 As a court of last resort, ICC seeks to

8
Rome Statute of the International Criminal Court, Article 6.
9
Ibid, Article 8
10
Ibid, Article 7
11
Ibid, Article 9
12
Supra, Note 1

3
complement, not replace, national courts.13 This is the Principle of Complementarity. This
principle is provided under the Preamble, Article 1, and Article 17 of the Rome Statute.
This explains why the ICC will not take cognizance of any issue, action, or controversy if
the domestic courts are still functioning and the law enforcement institutions are still
genuinely investigating the crimes of the most severe nature under international law
committed under their jurisdiction.

The ICC is governed by an international treaty called the Rome Statute. The
Philippines is a signatory to the Rome Statute on December 28, 2000, and ratified on
August 30, 2011. However, on March 17, 2019, the Philippines withdrew from the ICC,
citing the protection of our sovereignty from the meddling of the Court on our domestic
affairs. Worthy to note that the U.S. signified on the treaty or the Rome Statute but does
not want to become a party to the ICC.

Unlike the International Court of Justice (ICJ) of the U.N., which hears disputes
between states, the ICC handles the prosecutions of individuals. ICC is not part of the
United Nations, but they work alongside each other. On the other hand, ICJ is an integral
part of the U.N. and acts as its primary judicial branch.

III. THE ROME STATUTE

A. The Nuremberg Tribunals

While we have several conventions, protocols, and treaties that punish war crimes
and international violations of human rights, no permanent court or tribunal tries and
penalizes the violators.

13
Ibid, Article 1

4
 On August 8, 1945, in order to set a procedure for the prosecution and punishment
of the major war criminals of the European Axis, the Government of the United Kingdom
of Great Britain and Northern Ireland, the US, France, and the USSR agreed on the
Charter of the International Military Tribunal otherwise known as the Nuremberg Charter
of the London Charter.14 These countries are called the Signatories to this agreement.

This agreement also serves as the model for the Tokyo Charter issued months later
against the empire of Japan. It comprises thirty (30) articles that set down the rules and
procedures by which the Nuremberg trials were to be conducted.

The Nuremberg Tribunals laid the groundwork for modern international criminal
law. They were the first tribunals that tried international law violators, and they were held
responsible for their crimes.

In the Nuremberg Trials, twenty-two (22) judgments were handed down on the
trial of twenty-four (24) Nazis from the highest echelons. They issued Twelve (12) death
sentences, seven (7) prison sentences, and three (3) acquittals. In addition, the Nazi regime
was branded as a criminal organization.15

B. Historical Antecedents of the Rome Statute

The Nuremberg Charter paved the way for the creation of the ICC. The Nuremberg
Charter set several essential principles and precedents that served as the basis for the
further codification of international law.

14
Agreement for the prosecution and punishment of the major war criminals of the European Axis. Signed at
London on August 8, 1945, https://www.un.org/en/genocideprevention/documents/atrocity-
crimes/Doc.2_Charter%20of%20IMT%201945.pdf, retrieved on December 18, 2021.
15
Nuremberg Trial Verdicts-United States Holocaust Memorial Museum,
https://www.ushmm.org/learn/timeline-of-events/after-1945/verdicts-international-military-tribunal,
retrieved on December 18, 2021

5
 Thus, when the U.N. adopted the Genocide Convention in 1948, it invited the
International Law Commission (ILC) to study the desirability and the possibility of
establishing an international judicial organ for the trial of persons charged with genocide. 16
A committee was formed to submit draft proposals for establishing such a court. The
committee was able to submit draft proposals in 1951 and 1953, but these considerations
became a standstill as the member states disagreed on the definition of "Aggression" until
it was shelved entirely.17

While the U.N. continuously considered the creation of an international tribunal,

these were met by rejections and half-heartedness as some states were afraid that this body
would investigate and indict their top leaders.18 This is aside from their disagreement on
the proper definition of aggression. The U.S., for instance, is fearful that their soldiers on
peacekeeping missions may be arrested for violations of international humanitarian law.
Not until H.E. Arthus Robinson, former President of Trinidad and Tobago, proposed
creating the ICC to penalize drug traffickers.19 Though it did not immediately gain
support, it contributed to the growing acceptance for the creation of the ICC.

In 1992 the U.N. General Assembly directed the ILC to prepare another draft
Statute for an ICC.20 A year later, the conflict in Yugoslavia and war crimes such as ethnic
cleansing gained international attention. This led to establishing an ad-hoc tribunal for the
former Yugoslavia, followed in 1994 to establish the Tribunal in Rwanda.21 Given the
lack of a permanent mechanism for the punishment of perpetrators of heinous crimes
when the national system failed or was unwilling to take action, the creation of the ICC
thus gained momentum.

16
Ebdalin, Franklin M., The International Criminal Court: An Overview, PHILJA Judicial Journal, Vol. 15,
Issue No. 39, January -June 2013
17
Ibid.
18
Ibid.
19
Ibid
20
Ibid.
21
Ibid.

6
 In 1996, a final draft of the code was prepared. In 1998 this was submitted for
adoption and signature by the States in Rome.22

On July 17, 1998, representatives of 120 States gathered in Rome and voted
overwhelmingly to adopt the Statute to establish the International Criminal Court.23 This
marked an unprecedented event in diplomatic history and international law. Unlike the
ICJ, this Court has jurisdiction to try individuals for the most severe crimes of
international concern. Also, unlike the Yugoslavian and Rwandan War Crimes Tribunals,
it is permanent and is not limited by geographical boundaries.

C. Salient Provisions of the Statute

The Statute comprises 13 parts and 129 Articles discussing the jurisdiction,
applicable principles of criminal law, composition and administration of the Court, the
aspect of investigation and prosecution, the trial, the penalties that must be imposed,
remedy of appeal, international cooperation, and enforcement. Among the salient
provisions of the Statute are herein discussed:

a. The Court and its Personality

The ICC is a permanent court that can exercise jurisdiction over persons for the
most serious crimes of international concern.24 It shall be complementary to national
criminal jurisdictions. The seat of the court is in The Hague in the Netherlands. It has an
international legal personality.25

b. Crimes within its jurisdiction

22
Ibid.
23
Ibid.
24
Supra, note 8, Article 1
25
Ibid.

7
 Crimes under the jurisdiction of the ICC shall be limited to the most serious crimes
of concern to the international community as a whole, such as a. Genocide; b. Crimes
against humanity, c. War Crimes, and d. the Crimes of Aggression.26

For this Statute, "genocide" means any of the following acts committed with intent
to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such: (a)
Killing members of the group; (b) Causing serious bodily or mental harm to members of
the group; (c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part; (d) Imposing measures intended to
prevent births within the group; (e) Forcibly transferring children of the group to another
group.27 Rome Statute adopted the exact definition of genocide in the 1948 Genocide
Convention.

Crimes against humanity pertain to 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 are considered crimes against humanity. Examples of these are:
(a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of
population; (e) Imprisonment or other severe deprivation of physical liberty in violation
of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence
of comparable gravity; (h) 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; (i) Enforced disappearance of persons; (j) The crime of
apartheid; (k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or mental or physical health.28

26
Ibid. Article 5
27
Ibid. Article 6
28
Ibid. Article 7

8
 The Court shall also have jurisdiction regarding war crimes, particularly when
committed as part of a plan or policy or as part of a large-scale commission of such crimes.
War Crime means: (a) Grave breaches of the Geneva Conventions of August 12, 1949,
namely, any of the following acts against persons or property protected under the
provisions of the relevant Geneva Convention; (b) Other serious violations of the laws
and customs applicable in international armed conflict, within the established framework
of international law; (c) In the case of an armed conflict not of an international character,
serious violations of article 3 common to the four Geneva Conventions of August 12,
1949, namely, any of the following acts committed against persons taking no active part
in the hostilities, including members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention or any other cause; (d) Other
serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law.29

Finally, “crime of aggression” pertains to the 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. 30

c. The precondition to the exercise of jurisdiction

A State party to the Statute accepts the jurisdiction with the crimes referred to in
Article 5. The States who are not parties to the Statute may accept the jurisdiction of the
Court concerning certain crimes by a declaration with the Registrar.31

d. Principle of Ratio Temporis

29
Ibid. Article 8
30
Ibid. Article 9
31
Ibid. Article 12

9
 This principle means that the Court has jurisdiction only with respect to crimes
committed after the entry into force of this Statute. If a State becomes a Party to this
Statute after it enters into force, the Court may exercise its jurisdiction only with respect
to crimes committed after the entry into force of this Statute for that State.32 This is similar
to the prospective application of criminal laws in our jurisdiction.

e. The principle of Ne Bis In Idem

This is similar to the double jeopardy principle in our criminal laws. Under this
principle, no person shall be tried before the Court with respect to conduct which formed
the basis of crimes for which the person has been convicted or acquitted by the Court.33

f. Applicable Rules in its Proceedings

The Court is not limited to the application of the Rome statute in its proceedings.
It also utilizes other applicable laws such as treaties and conventions and even
international customary laws. So in its proceedings, the Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure
and Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles
and rules of international law, including the established principles of the
international law of armed conflict;
(c) Failing that, general principles of law derived by the Court from national laws
of legal systems of the world including, as appropriate, the national laws of States
that would generally exercise jurisdiction over the crime, provided that those
principles are not inconsistent with this Statute and with international law and

32
Ibid. Article 11
33
Ibid. Article 20

10
 internationally recognized norms and standards. The Court may apply principles
and rules of law as interpreted in its previous decisions. 34

g. General Principles of Criminal Law

The ICC also adopts and applies the generally accepted principles of criminal law
in its investigation and proceedings. Some examples of these are the following:

1. Nullum crimen sine lege means that no person shall be criminally responsible
unless the conduct in question constitutes, at the time it takes place, a crime
within the jurisdiction of the Court.35
2. Nulla poena sine lege provides that the crimes within the jurisdiction of the Court
should be defined with clarity and precision and may be punished only under
this Statute.36
3. Non-retroactivity ratione personae state that no person shall be criminally
responsible for conduct prior to entry into force of the Statute. In case of a
change in the applicable law, the law favorable to the person being investigated,
prosecuted, or convicted shall apply.37
4. Individual criminal responsibility shows that the Court shall have jurisdiction over
natural persons pursuant to this Statute. A person who commits a crime within
the Court's jurisdiction shall be individually responsible and liable for
punishment in accordance with this Statute.38
5. Exclusion of jurisdiction over persons under eighteen means that the Court shall have
no jurisdiction over any person under the age of 18 at the time of the alleged
commission of a crime.39

34
Ibid. Article 21
35
Ibid. Article 22
36
Ibid. Article 23
37
Ibid. Article 24
38
Ibid. Article 25
39
Ibid. Article 26

11
 6. Irrelevance of official capacity states that the Statute is applicable without
distinction based on official capacity. In particular, official capacity as a Head
of State or Government, a member of a Government or parliament, an elected
representative, or a government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and of itself, constitute
a ground for reduction of sentence. Immunities or special procedural rules that
may attach to a person's official capacity, whether under national or
international law, shall not bar the Court from exercising its jurisdiction over
such a person.40
7. Responsibility of commanders and other superiors provides that command
responsibility applies, especially if the commander fails to control, prevent, and
repress the commission of the crime or submit the matter to the authorities. 41
8. Non-applicability of Statute of limitations means that the crimes within the
jurisdiction of the Court shall not be subject to any statute of limitations. 42
9. The mental element (Mens Rea) is the principle that the defendant will only be
liable if the material element of the crime is committed with intent and
knowledge.43
10. Grounds for excluding criminal responsibility.44 Almost the same justifying and
exempting circumstances under our criminal law

h. Composition and Administration of the Court

The organs of the Court shall be composed of the following: (a) The Presidency;
(b) An Appeals Division, a Trial Division, and a Pre-Trial Division; (c) The Office of the
Prosecutor; (d) The Registry.45

40
Ibid. Article 27
41
Ibid. Article 28
42
Ibid. Article 29
43
Ibid. Article 30
44
Ibid. Article 31
45
Ibid. Article 34

12
 The Presidency is responsible for the proper administration of the Court, while the
Registry is responsible for the non-judicial aspect of the administration and servicing of
the Court.46

The Appeals Division shall be composed of the President and four other
judges,47the Trial Division of not less than six judges, and the Pre-Trial Division of not
less than six judges.48 The principles of independence, impartiality also govern judges;
they may also be asked to recuse or be disqualified from hearing or participating in the
trial of a particular case.49

Judges of the Court are nominated and elected by the State parties, and they shall
have established competence in criminal law and procedure and relevant areas of
international law such as international humanitarian law and law of human rights. 50

On the other hand, the prosecutor's office is an independent body and separate
organ of the Court. It is tasked to receive referrals and substantiated information on crimes
within the jurisdictions of the Court for purposes of examination and conducting
investigation and prosecution.51

i. Investigation and Prosecution

The investigator initiates the investigation after prior evaluation of the evidence
made available to him or her.52 The pre-trial Chamber will then oversee the prosecutorial
investigation and ensure that the defendants' rights are protected. After the investigation,
the pre-trial Chamber will issue a warrant of arrest if there is reasonable ground to believe
that the defendant has committed the crime within the court's jurisdiction. 53

j. The Trial

46
Ibid. Article 38 (3)
47
Ibid. Article 39
48
Ibid.
49
Ibid. Article 40, 41
50
Ibid. Article 36
51
Ibid. Article 42
52
Ibid. Article 53 (1)
53
Ibid. Article 57,58

13
 Unless otherwise decided, the place of the trial shall be in the seat of the Court.54
The Trial Chamber shall ensure that the trial is fair and expeditious and is conducted with
full respect to the accused's right.55 And due regard for the protection of the victim and
witnesses. The onus is on the part of proving the accused's guilt beyond a reasonable
doubt.56 Trial in absentia is not allowed.57 If there is no unanimity in the decision, the
majority views and minority views shall be written.58 Penalty may include reparation of
the victims, such as restitution, compensation, and rehabilitation.59

k. The Penalties

The Court may impose one of the following penalties on a person convicted of a
crime referred to in article 5 of this Statute: (a) Imprisonment for a specified number of
years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment
when justified by the extreme gravity of the crime and the individual circumstances of the
convicted person.60

In addition to imprisonment, the Court may also order: (a) A fine under the criteria
provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds,
property, and assets derived directly or indirectly from that crime, without prejudice to
the rights of bona fide third parties.61

This is without prejudice to the national application of penalties and national laws
of the State.

l. Appeal and Revision

The parties could appeal against the decision of acquittal or conviction, or

sentence. The prosecutor may appeal the decision on any of the following grounds:
(i) Procedural error, (ii) Error of fact, or (iii) Error of law. On the part of the defendant,

54
Ibid. Article 62
55
Ibid. Article 64 (2)
56
Ibid. Article 66 (2)
57
Ibid. Article 67
58
Ibid. Article 74
59
Ibid. Article 68
60
Ibid. Article 77 (1)
61
Ibid. Article 77 (2)

14
in addition to the preceding grounds, he or she may appeal on any grounds that affect the
fairness or reliability of the proceedings or decision. 62

m. International Cooperation and Judicial Assistance

Under the provisions of this Statute, the States Parties shall cooperate fully with
the Court in its investigation and prosecution of crimes within the jurisdiction of the
Court.63

i. Enforcement

A sentence of imprisonment shall be served in a State designated by the Court from

a list of States which have indicated to the Court their willingness to accept sentenced
persons. If no State is designated, the sentence shall be served in a prison facility made
available by the Host (Netherlands). 64 The Court may transfer the sentenced person from
time to time, and the sentenced person may also request to be transferred from the State
of enforcement.65

IV. THE STRUCTURE AND PROCEDURES OF THE COURT

a. Organizational Structure

To determine the strengths and weaknesses of the Court regarding its investigative
and enforcement power, it is imperative to examine its structure and the procedure. After
finding and discovering the same, we can propose an overhaul and make necessary
changes to this structure and its processes.

62
Ibid. Article 81
63
Ibid. Article 86
64
Ibid. Article 103
65
Ibid. Article 104

15
 As discussed earlier, the Court comprises the following organs: a. The Presidency;
b. The Chamber (An Appeals Division, A Trial Division, and a Pre-trial Division); c. The
Office of the Prosecutor, and d. Registry.66

The Presidency is responsible for the proper administration of the Court except for
the Office of the Prosecutor, which is an independent body.67 The Presidency will organize
the Chambers by assigning certain judges to each, assigning cases, conducting judicial
review of certain decisions of the Registrars, and representing the Court externally, such
as by concluding cooperation agreement with States.

The Chamber comprises several judges organized into the Appeals Division, Trial
Division, and Pre-trial Division.68 They confirm or reject the charges. They issue warrants
of arrest. They also determine the jurisdiction and admissibility of evidence. They hear
the cases and pronounce judgments thereon. Finally, they rule on the appeals raised by
the parties.

The Office of the Prosecutor is an independent body responsible for receiving

referrals and any substantiated information on crimes within the jurisdiction of the Court.
They perform a preliminary analysis of the referrals and information they received to meet
the jurisdictional requirements that warrant a full-blown investigation. They apply for the
issuance of a warrant of arrest against the subject or a summons to appear. They present
the charges and evidence at the pre-trial Chamber, and if there is a confirmation, they will
handle the active prosecution of the case during the trial.69

66
Supra, Note 45
67
Supra, Note 46
68
Supra, Article 39
69
Ibid. Article 42

16
 The Registry provides administrative support to all organs of the Court. It acts as
the secretariat. They likewise assist the defense and their counsel. They also provide
support to the victims by ensuring their safety and the processes for their reparation.70

Although not part of the principal organs of the Court, the Assembly of State
Parties acts as the oversight, management, and legislative body of the Court. It is
composed of the various representatives of the States who adopted and ratified the Rome
Statute.71

b. Procedures

The ICC will only exercise jurisdiction in any atrocity in any following: a. when a
state party refers the crime to the Office of the Prosecutor, b. when the U.N. Security
Council refers the committed crime to the Office of the Prosecutor, and c. when the Office
of the Prosecutor initiated the investigation, motu proprio.72

Whether the case is referred to or exercises its motu proprio power, the Office of
the Prosecutor will analyze the seriousness of the information it received by conducting a
preliminary examination. In this stage, the prosecutor in charge will examine if the alleged
crimes satisfy the fundamental jurisdictional requirements of the Rome Statute (covered
crimes and natural/individual persons), if they were committed after July 1, 2002, if it
was committed in a territory of a State Party, a non-State party that consents to the
jurisdiction, and a non-State Party but referred to the Court by the U.N. Security Council.
They will also determine if the domestic courts are still functioning and genuinely willing
to investigate the alleged crimes during this stage. This is the fundamental principle of
complementarity. Finally, the Office of the Prosecutor will determine the gravity

70
Ibid. Article 43
71
Ibid. Article 112
72
Ibid. Article 13

17
threshold. As a court of last resort, it is mandated to investigate only the most serious
crimes.73

During this phase, the prosecutor is also given a wide latitude of discretion not to
proceed with the investigation even if the case satisfied all the requirements if he deems it
or has reason to believe that the investigation would not serve the best interest of justice. 74

If the requirements are met, the Office of the Prosecutor will now conduct a full-
blown investigation. They will now gather information and evidence to uncover the truth
of the information reported or referred to them and who should be held responsible. Since
the Court does not have its police force or enforcement agents, it is at this stage where the
prosecutors find several challenges such as non-cooperation of the countries that are
involved, scared and hostile witnesses, budgetary constraints, and the requirement that
they must first be permitted to enter the county to obtain evidence.

After investigation, the prosecutors found a probable cause or sufficient basis for
the prosecution. They will ask the Pre-trial Chamber to issue an arrest warrant or a
summon.75

After the defendant's initial appearance or the one subject of the investigation, the
Pre-trial Chamber, after hearing, may either: a. Confirm the charges and send the case to
the Trial Chambers for trial; b. Dismiss the Charges and send the individual free, and c.
Reset or postpone the hearing to give the prosecutor sufficient time to gather additional
evidence or change the charges with the available evidence. 76

73
Ibid. Article 53
74
Ibid. Article 53 (1) (c)
75
Ibid. Article 58
76
Ibid. Article 57, 58

18
 The trial shall be held at the seat of the Court unless otherwise decided.77 The Court
is required to conduct a fair and expeditious trial and must be conducted with full respect
to the rights of the accused and with due regard for the protection of the victims and
witnesses.78 The prosecution will present evidence first and then the defense. After that,
the judges will decide whether to convict or acquit the accused.

The Court may impose one of the following penalties on a person convicted of a
crime referred to in Article 5 of this Statute: (a) Imprisonment for a specified number of
years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment
when justified by the extreme gravity of the crime and the individual circumstances of the
convicted person.79

In addition to imprisonment, the Court may also order: (a) A fine under the criteria
provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds,
property, and assets derived directly or indirectly from that crime, without prejudice to
the rights of bona fide third parties.80 This is without prejudice to the national application
of penalties and national laws of the State.

The parties could appeal against the decision of acquittal or conviction, or

sentence. The prosecutor may appeal the decision on any of the following grounds: (i)
Procedural error, (ii) Error of fact, or (iii) Error of law. On the part of the defendant, in
addition to the preceding grounds, he or she may appeal on any grounds that affect the
fairness or reliability of the proceedings or decision. 81

V. THE ICC AND THE PHILIPPINES

77
Ibid. Article 62
78
Ibid. Article 64
79
Ibid. Article 77
80
Ibid. Article 77 (2) (b)
81
Ibid. Article 81

19
 The Philippines is a signatory to the Rome Statute on December 28, 2000. This
was ratified by the Philippine Senate on on August 30, 2011. The Philippines favor
creating a permanent and independent court that will address the problem of impunity of
the perpetrators of the atrocious violations of the laws of humanity. It calls for creating an
efficient ICC, one that is not established for the sake of being established but an effective
and efficient court.82

Even before the ratification of the Rome Statute, the Philippines already enacted
its international humanitarian law on December 11, 2009; this is Republic Act No. 9851
or the Act Defining and Penalizing Crimes Against International Humanitarian Law,
Genocide and other Crimes against humanity, Organizing jurisdiction, Designating
Special Courts, and for related purposes.

On April 24, 2017, Atty. Jude Sabio filed a complaint before the International
Criminal Court (ICC) about the alleged summary killings when Pres. Rodrigo Roa
Duterte was the Mayor of Davao City. On June 6, 2017, Senator Antonio Trillanes and
Representative Gary Alejano filed a “Supplemental Communication” before the ICC
concerning President Duterte's Drug war since July 1, 2016. Specifically, it cited
allegations that thousands were killed in relation to their involvement in illegal drug use
or sale. These killings were reported by the Philippine National Police (PNP), other law
enforcement agencies, and the military, while some were alleged to have been carried out
by unidentified assailants. 83 Acting on these reports, the Office of the Prosecutor (OTP)
commences its preliminary examinations on February 18, 2018.84

On March 15, 2018, the Philippines announced that it is withdrawing from the
ICC, citing the protection of sovereignty from the meddling of the ICC on the country's

82
Baja, Lauro, Jr. Towards an Effective International Criminal Court, Address before the ICC Diplomatic
Conference in Italy June 9 16, 1998)
83
Pangilinan, et.al. vs Cayetano, et.al., PCICC vs Office of the Executive Secretary, and IBP vs Office of the
Executive Secretary, G.R. Nos. 238875, 239483, and 240954, July 21, 2021,
https://sc.judiciary.gov.ph/20238/, retrieved on December 18, 2021
84
Supra, Note 2.

20
domestic affairs. On March 17, 2018, the Secretary-General of the United Nations
formally received the Philippines Notice of Withdrawal from the International Criminal
Court.85

In its December 14, 2020 report, OTP held that it is satisfied that crimes against
humanity were committed between July 1, 2016, to March 16, 2019, and is therefore
subject to ICC's jurisdiction. Thus, upon the request of the OTP and finding reasonable
ground, the Pre-trial Chamber 1 authorized the opening of the investigation on the
allegations of murder as a crime against humanity on the war on drugs of the Duterte
administration and the those committed in the Davao Region from 2011 to 2016.86

Meanwhile, Senators Francisco Pangilinan et al., the IBP, and the Philippine
Coalition for the International Criminal Court (PCICC) filed separate petitions before the
Supreme Court of the Philippines assailing the unilateral act of the President of
withdrawing from the Rome Statute for being unconstitutional.

Through Justice Marvic Leonen, the Supreme Court held that the petitions were
already moot and academic as the withdrawal of the Philippines from the ICC was already
received and acknowledged by the United Nations on March 17, 2018. Thus, according
to the Rome Statute, all the requisite acts of withdrawal were duly complied with. It also
added that there is no lesser protection of human rights within the country's system of
laws. It could also not agree with the petitioners that without such a treaty, the Philippine
Supreme Court and the entire judiciary will not fulfill its mandate of protecting human
rights. It also held that while the President is the primary architect of foreign policy, it has
no absolute discretion on unilaterally withdrawing from the treaty or international
agreement. Finally, the Supreme Court held that withdrawing from the Rome Statute does

85
Supra, Note 83
86
Supra, Note 84

21
not discharge a state party from the obligations it has incurred as a member and prior to
its withdrawal.87

Upon the request of the Philippine government, on November 18, 2021, Prosecutor
Karim A.A. Khan formally notifies the Pre-trial Chamber I that it is suspending the
investigations on the Philippines, but in the meantime, it will assess and continue to
analyze the information already in its possession and will check whether it is necessary to
apply for authority to conduct another investigation for the preservation of their
evidence.88

VI. ISSUES AND CHALLENGES FACED BY THE COURT

Since its inception in 2002, the Court has met many criticisms ranging from slow
and delayed investigations, budgetary constraints, lack of cooperation from member
states, and other inherent structural issues that hinder its effective and efficient
functioning. In this paper, the author cataloged these issues into three (3) general
categories, and these are a. Structural Issues, b. Funding Issues, and c. Cooperation Issues.

a. Structural Issues

The structure of the ICC alone already presents several issues such as the lack of
suitable communication between the chambers, redundancy, checks and balances, and
the oversight power of the Assembly of State Parties which is regarded by many as a tool
that may tend to influence the investigation and the trial of the cases directly or indirectly.

87
Pangilinan, et.al. vs Cayetano, et.al., PCICC vs Office of the Executive Secretary, and IBP vs Office of the
Executive Secretary, G.R. Nos. 238875, 239483, and 240954, July 21, 2021,
https://sc.judiciary.gov.ph/20238/, retrieved on December 18, 2021
88
ICC Prosecutors grants P.H. request to defer probe on drug war killings, Philippine Daily Inquirer,
November 20, 2021, https://newsinfo.inquirer.net/1517555/icc-prosecutor-grants-ph-request-to-defer-probe-
on-dutertes-drug-war-killings, retrieved on December 18, 2021.

22
 Delays in the investigation by the Office of the Prosecutor are also brought about
by the circuitous procedure inherent in the Rome Statute itself. Though an independent
body, the Office of the Prosecutor will still require the authorization of the Pre-trial
Chamber before it can proceed with the full-blown investigation. After it concluded its
investigations, the Pre-trial Chamber will still have to confirm the findings and decide
whether to dismiss the case or elevate it before the Trial Chamber. The Office of the
Prosecutor will also have to request the Pre-trial Chamber to issue a warrant for the arrest
or a summons. These convoluted procedures should have been simplified to obtain an
expedient investigation and administration of justice.

These delays are manifest in the case of Uganda's Lord Resistance Army (LRA).
The case was referred to the ICC by its government in July 2004. The top members of the
LRA have yet to be arrested, and only one member, Dominic Ongwen, was tried and
sentenced by the Trial Chamber 1 to 25 years of imprisonment for 61 crimes against
humanity and other war crimes.89

Another inherent limitation on the part of the Court is the principle of

complementarity. This is fully emphasized in the Preamble of the Rome Statute and
Article 1 and Article 17 of the Rome Statute. Under this principle, the Court complements
and does not replace national courts. This means that the Court will not take cognizance
of any issue, controversy, report, or referral of one or more violations of the most serious
crimes against humanity if the domestic courts are functioning and genuinely able and
willing to prosecute and investigate these crimes. Another issue in this regard is the
determination of whether the domestic courts are still able and willing to function and
prosecute these crimes. Should the examination of these criteria be left alone on the
investigating prosecutors, or can the member state be allowed to determine its capacity
and capability to investigate categorically?

89
Supra Note 2, Situations in Uganda, https://www.icc-cpi.int/uganda, retrieved on December 18, 2021.

23
 The investigation of the ICC on the Philippines relative to the Duterte
administration’s war on drugs would likely be impeded by this principle, mainly so that
the Philippine Supreme Court already categorically pronounced in Pangilinan et al. vs.
Cayetano.90that the mechanisms that safeguard human rights and protect against the grave
offenses sought to be addressed by the Rome Statute remain formally in place in this
jurisdiction.

ICC also faced huge criticisms on the vast influence of the U.N. Security Council
regarding referrals of cases that the ICC may investigate. Although not a signatory to the
Rome Statute, three (3) of the five (5) permanent members of the U.N. Security Council,
namely: Russia, China, and the United States of America, have veto power and thus can
decide whether to refer or not refer the case to the ICC. These party referrals may also be
abused and may use the ICC to further their political agendas by discrediting the
opposition in their territory.91

Similarly, one of the factors that hamper the effective investigation of the ICC is
Article 12 of the Rome Statute. Under this Article, the ICC can only exercise jurisdiction
if the crime is committed within the territory or the person accused is a national of the
State party to the Statute or has accepted the court's jurisdiction.

It is important to note that the United States of America, in order not to place in
jeopardy its military personnel conducting peacekeeping missions outside of the U.S.,
failed to ratify the Rome Statute. In another case, Myanmar is not a party to the Rome
Statute. However, the ICC is currently investigating alleged ethnic cleansing and
genocide against the Rohingya Muslims, an ethnic group in the western Rakhine State
of Myanmar, as one at least one human rights violation has been committed against

90
Supra, Note 14
91
Roundtable #6 | The Promises and Problems of the International Criminal Court, Columbia Undergraduate
Law Review, https://www.culawreview.org/roundtable-1/roundtable-discussion-the-promises-and-problems-
of-the-international-criminal-court, retrieved on December 18, 2021

24
Rohingya refugees in Bangladesh, a country that is within the ICC’s jurisdiction. 92
While it is fortunate that one or more elements of the crime were committed in the
territory of a State Party, this is not the case in many other situations and
circumstances.

Finally, Article 127 of the Rome Statute states that a State Party may withdraw
from the Statute by written notification addressed to the Secretary-General of the United
Nations. The withdrawal shall take effect one year after the date of the receipt of the
notification unless the notification specifies a later date. This provision gives the State
parties wide latitude of discretion to withdraw from the jurisdiction of the ICC freely. This
can be prone to abuses as many countries as possible who would not want to be
investigated may tender their written withdrawal, and future crimes committed within
their jurisdiction or by their nationals they would no longer be within reach of the
investigative and enforcement powers of the ICC. This is what happened in the case of
Burundi, which withdrew from the Rome Statute in 2017. Burundi also accused the
Court of being “a political instrument and weapon used by the West to enslave other
States.”93 The Philippines' withdrawal followed this in 2018.

b. Funding Issues

Article 115 of the Rome Statute provides that the expenses of the Court and the
Assembly of State Parties, including its Bureau and subsidiary bodies, shall be provided
by the following sources: a. Assessed contribution made by State Parties, and b. Funds
provided by the United Nations, subject to the approval of the General Assembly,
concerning the expenses incurred due to the referral by the Security Council.

92
The International Criminal Court, ICC judges, authorize the opening of an investigation into the situation in
Bangladesh/Myanmar, November 14, 2019, https://www.icc-cpi.int/Pages/item.aspx?name=pr1495
retrieved on December 18, 2021
93
Agence France-Presse, Burundi becomes the First nation to Leave International Criminal Court, The
Guardian,https://www.theguardian.com/law/2017/oct/28/burundi-becomes-first-nation-to-leave-
international-criminal-court, retrieved on December 18, 2021.

25
 In the Report of the Committee on Budget and Finance on the work of its thirty-
fifth Session, Committee recommended that the Assembly approve a budget of €144,673.9
for the year 202194. This represented a total decrease of €946.6 thousand (0.7 percent)
compared to the 2020 approved budget. Ten years earlier, or particularly in 2010, the
Court appropriated €103,623,300 budget for all its programs.95

These figures show that the Court has been trying to limit its spending over the
years. However, with a steady up to only a slight increase in its appropriated budget
compared with the considerable increase in the atrocities reported and referred to it for
investigation, the Court can only do so much, which greatly affected its efficiency.

Japan, Germany, France, Britain, and Italy, some of the few steadily countries
contributing to the budget of the ICC, have been proposing zero-growth budgets as a
response to fiscal constraints brought on by the aftermath of the 2008 global financial
crisis. They argue that they simply cannot afford to pay more. They likewise contend that
the ICC is inefficient and can do more with the same amount of money if it becomes more
efficient.96

`Limited budget potentially restricts the investigative power of the Office of the
Prosecutor as they have to travel personally to the territory of the concerned State,
interview victims, and witnesses, and gather evidence using the best available technology.
Most of the time, the investigation could not be finished for several days and may even

94
International Criminal Court, Report of the Committee on Budget and Finance on the work of its thirty-fifth
session, Assembly of States Parties, October 13, 2020, retrieved on December 18, 2021
95
Resolution ICC-ASP/8/Res.7, Adopted at the eighth plenary meeting, on November 26, 2009,
https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.7-ENG.pdf, retrieved on December 18,
2021
96
Ford, Stuart, How Much Money Does the ICC Need? (April 12, 2015). The Law and Practice of the
International Criminal Court (Carsten Stahn ed., Oxford University Press 2015),
SSRN: https://ssrn.com/abstract=3371046, retrieved on December 18, 2021

26
drag on for several months. Protection of the victims and witnesses and bringing them
personally to the trial and hearings also utilize a large chunk of their budget.

c. Cooperation Issues

Considering that the Court does not have its police force or independent
enforcement powers, the Court heavily relies on the full cooperation of the member States
and request for judicial assistance. However, this proves to be extremely difficult without
the support and recognition of the big and powerful countries such as the United States,
China, and Russia. Of the 35 arrest warrants already issued by the Court, at least half of
these remain unserved, and the subject of these warrants remained at large mainly due to
the lack of cooperation, the cuddling and refusal to surrender of these perpetrators of
atrocious crimes by some non-member and even member counties. It cannot also enter or
obtain evidence in sovereign countries without the country’s permission, as this may be
deemed an intrusion on its sovereignty and independence.

Article 86 of the Rome Statute provides that State parties shall cooperate fully with
the Court in its investigation and prosecution of the crimes within the jurisdiction of the
Court. However, this proves to be challenging in the enforcement aspect as member
countries haphazardly comply as they may also face intrusion issues, diplomatic and state
immunity concerns.

In Prosecutor v. Omar Hassan Ahmad Al Bashir, the accused is the ICC's first sitting
head of state to be indicted. His arrest warrants were issued on May 4, 2009, and July 12,
2010, for genocide (amputation of civilians and mental destruction) and crimes against
humanity (torture).97 Sudan is not a signatory nor ratified the Rome Statute.

97 Phooko, Moses Retselisitsoe (2011) "How Effective the International Criminal Court Has Been: Evaluating
the Work and Progress of the International Criminal Court," Notre Dame Journal of International &
Comparative Law: Vol. 1: Iss. 1, Article 6. http://scholarship.law.nd.edu/ndjicl/vol1/iss1/6, retrieved on
December 18, 2021

27
 The Sudanese case is also complex in that it raises the issue of state sovereignty.
The undisputed and clear obligation in terms of the Security Council’s resolution is that
the government of Sudan must arrest President Al Bashir. The difficulty with this
obligation is that, on the one hand, the ICC has no police force to arrest President Al
Bashir. President Al Bashir is the sitting Head of State who still has control of the police
and army forces in his country. It is unimaginable that he would order his forces to arrest
him.98

Another difficulty is that State Parties to the Rome Statute have to cooperate with
the ICC by bringing President Al Bashir to the ICC. On the other hand, however, they
also have to respect the principle of state or diplomatic immunity of a person under Article
98 of the Rome Statute. Consequently, the conflict faced by states is having to comply
with the ICC while respecting diplomatic immunity. 99

This issue concerning diplomatic immunity was settled by the Appeals Chamber
of the ICC when it affirmed the Pre-Trial Chambers resolution in December 2017, which
found that Jordan, a State Party to the Rome Statute, had failed to comply with its
obligations under the Statute because it had not arrested Mr. Omar Al-Bashir and
surrendered him to the ICC when Mr. Al-Bashir was on Jordanian territory on March 29,
2017, on the occasion of a summit of the Arab League. According to the Appeals
Chamber, Sudan could not invoke any Head of State immunity regarding Mr. Al-Bashir,
and Jordan should have arrested him.100

V. CONVERGENCE, ANALYSIS, AND CONCLUSION

98
Ibid
99
Ibid
100
Supra, Note 1, Q & A Regarding Appeals Chamber's May 6, 2019, Judgment in the Jordan Referral Re Al-
Bashir Appeal, The Prosecutor vs. Omar Hassan Ahmad Bashir, ICC-02-01/09, May 2019, https://www.icc-
cpi.int/itemsDocuments/190515-al-bashir-qa-eng.pdf, retrieved on December 18, 2019.

28
 The above-enumerated issues and challenges are only some of the problems being
encountered by the ICC in the fulfillment of their mandate of prosecuting and penalizing
the perpetrators of the most gruesome and most serious crimes of concern to the
international community. While there may be other issues such as the perceived bias and
partiality of the ICC towards the west and other powerful countries, mainly targeting the
African countries in its investigation, and not competent and not adequately trained
prosecutors and judges, the author did not anymore discuss or include them in this paper
in order to limit the discussion on the issues affecting the investigation and enforcement
power of the Court.

Like any other court or tribunal in the world facing problems like delays, congested
dockets, and lack of personnel, the Court is doing its best to administer justice to
whomsoever it is due. However, unlike any other court or tribunal, the task over the
shoulders of the ICC is so massive that the Court cannot carry it alone. The ICC requires
the active participation of the State Parties and even the other countries that have yet to
signify or ratify the Rome Statute.

Hereunder are some of the proposed recommendations that the ICC can use in
order to improve its prosecutorial and investigation power further:

A. On the Structural Challenges

Article 122 and 123 of the Rome Statute provides for the amendment and review
of the Statute. As this is categorically provided, the Court and the Assembly of States who
supervise the Court should conduct a periodic review of the provisions under the Statute
and constantly update, revise, and amend these further to strengthen the investigative and
prosecutorial power of the Court.

One of the amendments that should be made is the simplification of the conduct of
the investigation. The circuitous preliminary examination, preliminary/full-blown

29
investigation and request for authority to the Pre-trial Chamber give an additional layer
to the already complicated procedure. The request to issue a warrant of arrest or summons
further delays the proceeding. The independence of the Office of the Prosecutor should
also be enhanced by giving them more authority and lessening the reliance and
dependence on the Pre-trial Chamber.

With regard to the principle of complementarity, it should be emphasized that

while each of the countries enjoys their sovereignty, this is no longer absolute if crimes of
the most severe nature were committed to mankind and the effect is no longer limited to
their territorial jurisdiction. Much more if these countries are not genuinely doing
anything to prevent, prosecute, or penalize the perpetrators. Furthermore, all nations are
subject to the generally accepted principles of international law and even customary laws.
In the case of Tanada vs Angara101, the Supreme Court held that by their voluntary act,
nations might surrender some aspects of their state power in exchange for more significant
benefits granted by or derived from a convention or pact. After all, states, like individuals,
live with coequals, and in pursuit of mutually covenanted objectives and benefits, they
also commonly agree to limit the exercise of their otherwise absolute rights.102

However, the authority to determine if the local or domestic courts and law
enforcement agencies are still capable and genuinely willing and able to protect
international humanitarian laws should not be left solely to the ICC. The concerned state
should still be allowed to function and exhaust all possible remedies before the Court
could take cognizance of the case.

With regard to the preconditions to the exercise of jurisdiction of the Court in

relation to Article 12 of the Rome Statute, many are calling for the expansion of the same.
Even States who did not signify the adoption of the Rome Statute, and even if they do not
ratify the same, should be covered by the jurisdiction of the ICC. By sheer membership to

101
272 SCRA 18 (1997)
102
Supra, Note 16

30
the community of nations and the United Nations, all States are obliged to protect and
abide by all international humanitarian laws, and there should be no exception.

On the option to sever its ties and withdraw by any State to the Rome Statute, the
author believes that more safety nets and stricter requirements should be imposed as these
could be abused and used to further the immunity of the responsible individuals. A mere
letter and the acknowledgment of the same should not suffice.

B. On the funding Issues

While it is true that most of the funding of the Court came from the contribution
of the member states and the United Nations give a minor portion thereof, there is no
prohibition on the part of the ICC to seek the aid of corporations, individuals, and other
multinational and international organizations for additional funding. This is provided for
and authorized under Article 116 of the Rome Statute. This Article states: Without
prejudice to Article 115, the Court may receive and utilize, as additional funds, voluntary
contributions from government, international organizations, individuals, corporations,
and other entities, following relevant criteria adopted by the Assembly of State Parties.

C. On the Cooperation Challenges

Indeed, one of the most challenging problems the Court faces is the cooperation of
other States. The framers and the creators of the Rome Statute already foresaw that this
would be one of the most significant challenges as they already devote one part consisting
of more than ten (10) articles on cooperation.

While it is true that when ICC enters the judicial jurisdiction of a particular State,
this means that said State has an inadequate system of addressing international human
rights violations. This is based on the principle of complementarity. However, it should
be remembered that no one should be left alone in this time of globalization and the

31
shrinking of the world due to technology. The administration of justice is not an easy task
to handle. These situations should not deter each country from reaching out to the
international community for assistance, especially when the right to life, liberty, and
security are at stake.103 While it is a humbling experience when there is an intervention
from the international community, this is just a small price to pay to ensure that justice
will be delivered to whomsoever it is due and combat the widespread impunity of
international crimes against humanity.104

As stated earlier, the foundations for cooperation are etched in the Rome Statute.
The problem now lies in the effective implementation of these provisions and the
tantamount penalties for its violations. These articles on cooperation could be considered
jus cogens or a peremptory norm of general international law for which no derogation shall
be permitted. Sanctions for non-cooperation should also be strictly implemented through
the aid of the United Nations and the UNC Security Council. Sanctions may include
embargo of weapons and the export/import of products, restrictions on loans, freezing on
assets, and travel ban/or visa restrictions for its citizens.

While many perceived the Court to be weak, incompetent, inefficient, ineffective,

and stands on shaky grounds as built on sand, there is, however, no other court or tribunal
in the world has the same mandate as the ICC. Historical antecedents already showed us
the complexity and the impediments to its creation. Many countries are halfhearted and
do not fully support the creation of the ICC as they perceived it to be a hindrance to their
political agenda, and they believe that this Court, once fully operational, may target their
leaders and their soldiers. Despite this, majority of the nation still believes that there must
be a single permanent court that must be established to go after international humanitarian
law violators even if the country involved is a superpower or not. The ultimate goal is still
the prosecution and the punishment of all those accountable and responsible for the most

103
Justice Brion, Arturo, Closing Remarks at the Eighth Metrobank Foundation Professorial Chair Lecture,
December 9, 2011
104
Ibid.

32
serious crimes against humanity, and the ICC is an effective legal mechanism to achieve
this objective.105 Thus, the author believes that while the ICC is failing vigorously to fulfill
its mandate, we have no other option but to continue to support it and not lose our trust
in it.

105
Ibid.

33
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Baja, Lauro, Jr. Towards an Effective International Criminal Court, Address before the ICC
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Justice Brion, Arturo, “Closing Remarks”, Eighth Metrobank Foundation Professorial Chair Lecture,
December 9, 2011, Philja Journal, July -December 2012, Vol. 14, Issue No. 38

Ebdalin, Franklin M., The International Criminal Court: An Overview, PHILJA Judicial Journal,
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Pangalangan, Raul C., “Reaction” Eighth Metrobank Foundation Professorial Chair Lecture,
December 9, 2011, Philja Journal, July -December 2012, Vol. 14, Issue No. 38

Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9 (1998)

Judge Santos, Soliman M., Republic Act No. 9851: Breakthrough Law for IHL Enforcement in the
Philippines, PHILJA Judicial Journal, Vol. 15, Issue No. 39, January -June 2013

Tanada, et.al. vs Angara,et.al. 272 SCRA 18, G.R. No. 118295 May 2, 1997

Roque, Herminio Harry L. “Legal Nuances to the Philippine Ratification of the Rome Statute of the
International Criminal Court”, Lecture delivered at the Eighth Metrobank Foundation Professorial
Chair Lecture, December 9, 2011, Philja Journal, July -December 2012, Vol. 14, Issue No. 38

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35
36