ICC to investigate Duterte, what’s worth it?

The International Criminal Court (ICC) eyeing to investigate President Duterte on alleged crimes against humanity isn’t likely laughable or preposterous, is it?

Through the legislative hard work of the late Sen. Miriam Defensor-Santiago and Sen. Loren Legarda as the primary sponsor and co-sponsor, respectively, they successfully convinced the Senate to ratify the Rome Statute of the ICC.

On Aug. 30, 2011, the Philippines ratified the Rome Statute, making the country the 117th party to join the ICC.

Sabio information leads ICC to investigate Duterte

Atty. Jude Josue L. Sabio submitted the Information to the ICC prosecutor on April 24, 2017, requesting the ICC to investigate Duterte on the charges and to hold 11 officials accountable for mass murder allegations that constitute a crime against humanity.

Duterte administration quipped to underestimate the submitted Information commenting that it would just go to the waste bin. Duterte convinced himself that the ICC lacks jurisdiction [to proceed to an investigation] over the charges filed against him and the 11 officials.

The following public officials are included in the submitted [original] Information to be held accountable for the alleged crimes against humanity:

  1. DOJ Secretary Vitaliano Aguirre
  2. Philippine National Police Chief Director General Ronald dela Rosa
  3. House Speaker Pantaleon Alvarez
  4. Former Interior Secretary Ismael Sueno
  5. Police Superintendent Edilberto Leonardo
  6. Senior Police Officer 4 Sanson “Sonny” Buenaventura
  7. Police Superintendent Royina Garma
  8. National Bureau of Investigation Director Dante Gierran
  9. Solicitor General Jose Calida
  10. Sen. Richard Gordon
  11. Sen. Alan Peter Cayetano

With this submission of the Information to the ICC prosecutor, the clock starts ticking for the ICC to investigate Duterte. If the ICC prosecutor finds the Information substantive to proceed to an investigation, which is “politically” highly likely, this will be the first ICC case from Southeast Asia.

In Southeast Asia, only Cambodia, Timor-Leste, and the Philippines, so far, ratified the Rome Statute of ICC. Superpower countries like the United States, Russia, China, India, or Japan (accession only), etc. refused to ratify it. However, on March 19, 2018, the ICC officially notified the United Nations that the Philippines deposited a written notification of withdrawal from the Rome Statute. The withdrawal will be effective a year after the date of the notice.

As of 2019, the ICC has 123 State Parties from 124 before the Philippines’ withdrawal making only two (2) countries from Southeast Asia as State Parties.

ICC has no jurisdiction; Sovereignty matters

The moment the Philippines ratified the Rome Statute, it has become under the jurisdiction of ICC (Article 11 [2] and 12 [1], Rome Statute).

By the principle of complementarity (Article 17), it has jurisdiction over the crimes when the State has shown unwillingness or has become unable to do its prosecutorial function. In this light, the ICC acts as the court of last resort.

The ICC has jurisdiction over the following crimes committed by a person, a head of state, member of the national legislature, or government official (Article 27):

  • crimes of genocide
  • crimes against humanity
  • crimes of aggression
  • war crimes

Duterte said that the ICC has no jurisdiction over the crimes he allegedly committed. Really?

With the principle of complementarity, the ICC has no jurisdiction over the crimes Duterte allegedly accused of. This is something in contrast to Article 27, right?

Atty. Sabio must have filed it first before the RTC where it has the primary jurisdiction over the crimes. Otherwise, the initiative of ICC to investigate Duterte would become tantamount to an attack on the State Party’s sovereignty.

Meanwhile, Gambian Fatou Bensouda, chief prosecutor of the ICC, stated that the ICC could look into the alleged mass killing in the country. Her statement won’t hold water; unless the State Party is classified as “unwilling” or “unable” to carry out its primary jurisdiction over the crimes.

Elements of a crime Duterte allegedly committed

Identifying and studying the elements of a crime is an integral part of the processes the ICC prosecutor has to work out to determine its jurisdiction over the crime.

Since the submitted Information accused Duterte of mass murder, the elements of a crime against humanity of murder must be clear, present, and must be too serious on its gravity.

For example, on the alleged summary killings reportedly carried out by vigilantes allegedly members of the Davao Death Squad (DDS) when Duterte was still mayor in Davao, the elements of a crime committed must be “part of a widespread or systematic attack directed against any civilian population” (Rome Statute).

Whether Duterte government claimed efforts to punish the perpetrators or denied the allegations, the elements of a crime committed must be the “most serious crimes of international concern (Article 1 and 5(1)),” not of the most sensationalized and exaggerated statistics of crimes that earned international concern.

Worsened by President Duterte’s conduct

Worsened by the conduct of President Duterte in public, especially when he used euphemism or preferred to blast jokes hinting drug addicts are not humans—not entitled to human rights—is a clear manifestation of an intention to “wipe out” drug addicts without a due process of law.

This is a clear arrogance of a leader who seemingly unmindful of the importance of human rights to all human beings alike—drug addicts, criminals, or the blameless. Worst, a manifestation of a type of leadership highly likely determined to promote a culture of impunity—conduct worth investigating.

Meanwhile, the New York Times told the world to stop this person (President Duterte) from advancing his war on drugs. It is a legitimate cause of journalism—sees no limits, speaks no restraints, and stands a definite side even if how unpopular that side is.

For the ICC to investigate Duterte and the 11 officials, it would be a totem pole of the Philippines’ “exhibitionism” of strong determination and affirmation to stop the culture of impunity, which has been dressed up on the pretext of a war on drugs.

What’s worth investigating?

Although the ICC prosecutor can initiate investigations proprio motu or by one’s own motion or initiative (Article 15), it cannot initiate or open an investigation based on the Information submitted, where the alleged crimes do not fall within the jurisdiction of the court (principle of complementarity) or without satisfying first the issues of admissibility under Article 17.

On the 77-page communication (Information) submitted by Atty. Sabio requesting the ICC to investigate Duterte and the 11 officials for the alleged crimes of humanity, doubts paint a thousand words that it would prosper; unless the state party (the Philippines) had investigated the crimes (having primary jurisdiction over the crimes) but rendered no justice or became “unable” or “unwilling” to prosecute the concerned persons or individuals. Otherwise, the ICC lacks jurisdiction over the alleged crimes.

With almost everyday media blasts and sensationalization of the number of deaths that the Duterte administration is allegedly accountable for, the statistics and mass killing reports are worth investigating.

Supposing the Duterte administration was as passive as a dead government to run after the perpetrators of summary killings or EJKs, who would have the balls to initiate the investigation? Can you see that?

However, the Philippines as a State Party to the Rome Statute does not give the ICC a license to or an outright avenue to let the ICC intervene with the political dynamics and the workings of the state’s criminal justice system by contravening the laws of the state and by stretching the limits of the provisions of the Rome Statute.

While leaving the ICC won’t make it lame to pursue the investigation, and if the ICC finds it substantive to pursue an investigation over the gravity of the crimes, then the Duterte administration has one or two aces left: defy the ICC and accept international retaliations or turn the other cheek through extralegal moves using the strength of his millions of supporters and allied superpower countries. But there has always a choice: either to make change and difference radically or to remain puppet and slave of traditional politics that has long, long been damaging the country! ▲

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