ICC Case vs Duterte: Lacks Jurisdiction, Yet Worth Investigating

ICC Case vs Duterte: Lacks Jurisdiction, Yet Worth Investigating

Through the legislative hard work of the late Senator Miriam Defensor-Santiago and Senator Loren Legarda as the primary sponsor and co-sponsor, respectively, they successfully convinced the Senate to ratify the Rome Statute of the International Criminal Court. On 30 August 2011 the Philippines ratified the Rome Statute, making the country the 117th party to join the International Criminal Court or ICC.

When Atty. Jude Josue L. Sabio submitted the information to the ICC prosecutor on 24 April 2017, requesting the office to look into the charges and hold President Duterte and the 11 officials accountable for mass murder allegations that constitute a crime against humanity, Malacañang has quipped to underestimate the submitted information commenting that it would just go to the waste bin. President Duterte convinced himself that the ICC lacks jurisdiction [to proceed an investigation] over the charges filed against him and the 11 officials.

The following public officials are included in the submitted 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

Since the information has now been forwarded to the ICC prosecutor, the clock of possibility to investigate President Duterte started ticking. Should the ICC prosecutor find the information substantive to proceed an investigation, which I see it politically highly likely, this would be the first case from the Southeast Asia that the International Criminal Court would look into.

In Southeast Asia, countries that ratified the Rome Statute of ICC are only Cambodia, Timor-Leste, and the Philippines. Some known countries considered to be superpowers such as the US, Russia, China, India, Japan (accession only), etc. refused to ratify it. So far, the ICC has 124 state parties.

On the Issue of Jurisdiction

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

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

  1. crimes of genocide
  2. crimes against humanity
  3. crimes of aggression
  4. war crimes

President Duterte said that the ICC has no jurisdiction over the crimes he allegedly committed. Was the president correct in saying that?

In accordance with the principle of complementarity, the ICC has no jurisdiction over the crimes President Duterte allegedly accused of. 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 look into it would become tantamount to an attack on the state party’s sovereignty.

Then how should we take the statement of the Gambian Fatou Bensouda, chief prosecutor of the international criminal court, 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.

On the Elements of Crime President 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 President 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. When for example on the alleged summary killings reportedly carried out by vigilantes allegedly members of the Davao Death Squad or DDS when President 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.

Meanwhile, worsened by the conduct of President Duterte in public, especially when he used euphemism or preferred to blast jokes hinting drug addicts were not humans, thus, 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 is apparently 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 a leadership that is highly likely determined to promote a culture of impunity. Thus, this conduct of his leadership is worth investigating.

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

The ICC case versus President Duterte and the 11 officials is 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.

Conclusion

Although the prosecutor at the ICC 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.

Basing on the 78-page information submitted by Atty. Sabio requesting the Office of Prosecutor at ICC to look into the alleged crimes of humanity President Duterte and the 11 officials committed, I doubt 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 Duterte government allegedly accountable for, the statistics and mass killing reports are worth investigating. But knowing that the administration is apparently as passive as dead government to run after the perpetrators of summary killings or EJKs, who has the balls to initiate the investigation?

Being a state party to the Rome Statute submitting our country to the jurisdiction of the ICC over the specific crimes, isn’t a license to or an outright avenue to let the ICC intervene 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 withdrawal from the ICC won’t make it lame to pursue investigation, and when worse comes to worst that the ICC may find it substantive to pursue investigation over the gravity of the crimes, Duterte government has one or two aces left—defy the ICC and accept international retaliation (let’s see if it works) 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!▲


Images Credit:

  • By Anastasiiariabtceva – Own work, CC BY-SA 4.0
  • By Presidential Communications Operations Office – Presidential Communications Operations Office (Immediate: [1]), Public Domain

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About REGEL JAVINES

Former stringer for Allvoices and contributor for Yahoo. Had worked as an editor in publishing companies for years and so far has earned some units in MBA.
Aside | This entry was posted in COMMENTARIES & INSIGHTS and tagged , , , , , , , , , , , , , , , , . Bookmark the permalink.

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