Both arguments are misplaced. The fact that a statutory mechanism exists is not the same as having a mechanism that actually works, which is what the principle of complementarity aims to achieve. Similarly, exploring the implications of presidential immunity presupposes that investigations that would satisfy complementarity are, in fact, already taking place. Both arguments do not answer the primordial question – are there, in fact, investigations being undertaken that would satisfy complementarity?
An absence of any investigation is enough reason for the ICC to step in. The question of genuine unwillingness will not arise if no investigations at all are being conducted in the first place. However, not all kinds of investigations are sufficient. This presupposes another question – what kind of investigation must take place, and against whom?
In its Policy Paper on Preliminary Examinations, the ICC Office of the Prosecutor requires national proceedings to be brought against the persons most responsible for the criminal acts that are being examined by it for potential cases. At present, however, no investigation, much less prosecution, has been conducted on any high-ranking official most responsible for planning and implementing Operation Tokhang, the Philippine National Police’s (PNP) official campaign through which the extrajudicial killings were allegedly committed.
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