What ‘filing’ a ‘complaint’ in ICC means

After the “filing” of a “complaint” in the International Criminal Court (ICC) against President Duterte and 11 other officials for mass murder and crimes against humanity, what happens next?

What are the implications of the filing? What’s in it for us?

Everything and nothing.

Different kind of court

We must understand that the ICC works differently from Philippine courts. It does not administer justice using the same legal rules; it operates through a different lens altogether.

The difference starts with the concept of “filing.”

In the Philippines, a criminal action begins with the filing of the complaint affidavit (usually by the victim or law enforcement officer) with the prosecutor.

If the investigating prosecutor finds probable cause, then a case will be filed in court.

The key element here is the role of the complaint affidavit. In the Philippines, it triggers the criminal case. If no one files a complaint, there is no case at all.

In the ICC, there is no such thing as a complaint affidavit.

Triggering the ICC prosecutor’s power to investigate does not require “filing” a “complaint.”

The Office of the Prosecutor (OTP) accepts any information submitted to it regarding a situation.

In fact, the information need not be in any specific form and may be submitted by anyone.

The submission of information, the equivalent of “filing” a complaint affidavit here in the Philippines, does not necessarily initiate the criminal action.

At this stage, the OTP simply evaluates the information and then decides whether a preliminary examination, which could lead to a full-blown investigation, must be conducted.

From this process, we can immediately see that the Philippine concept of “filing” does not apply to the ICC.

Consequently, the submission of information does not positively tell us that the “case” will proceed at all, much less if it will be favorably considered.

Moving issue forward

What then does Monday’s “filing” imply?

Is it groundbreaking?

Is it useless?

No and no.

It does not carry the same impact that a complaint affidavit filed with a Philippine prosecutor does, but it is nonetheless crucial in alerting the OTP to the seriousness of the drug killings in the Philippines, which could later prompt it to conduct a preliminary examination.

In other words, the filing of the case is a good development in moving the issue forward, more a cause célèbre than a cause for celebration.

Jenny Jean B. Domino has just completed her internship at the International Criminal Court. She worked with the Office of the Public Counsel for the Defense. She received her law degree from the University of the Philippines in 2014, and will leave soon for Harvard Law School to work for a master’s degree in law (LL.M). In UP, she served as chair of the Philippine Law Journal. She is currently a consultant to the  Commission on Human Rights.