Dramatic, premature

The filing of the first complaint against President Duterte at the International Criminal Court (ICC) at The Hague was dramatic and unexpected; it caught both the members of the political class and the journalists who cover them by surprise. But the closely argued “communication” submitted by lawyer Jude Sabio, counsel of confessed Davao Death Squad assassin Edgar Matobato, to the ICC’s Office of the Prosecutor may well be considered, under the court’s own rules, either premature or out-of-bounds.

The Philippines is a signatory to the Rome Statute, which created the ICC. This means that we accept the court’s jurisdiction—and that Sabio was well within his rights to ask the ICC prosecutor to investigate what he described as the “terrifying, gruesome and disastrous continuing commission of extrajudicial executions or mass murder” in the Philippines.

Article 14 of the Statute provides that “A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”

But the Rome Statute also provides, very clearly, that the ICC “shall be complementary to national criminal jurisdictions.” That’s from the preamble, and the principle is referred to several times in the main text.

The court’s charter also lists four instances when a case shall be deemed “inadmissible”—when “the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;” when the “case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; when the “person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted” (essentially for double jeopardy reasons); and when the “case is not of sufficient gravity to justify further action by the Court.”

We can dispose of the fourth instance; there should be no question that the number of killings in President Duterte’s so-called war on drugs, even if we use the much lower estimate now used by the Philippine National Police, is of “sufficient gravity” as to require further investigation. That’s what the PNP itself suggests, when it labels many of the killings as DUI, “deaths under investigation.” But—there’s the rub—there is no conclusive proof yet that the Philippine government, under the Duterte presidency, is “unwilling or unable genuinely to carry out the investigation or prosecution.”

Yes, two Senate inquiries have sputtered to a close, essentially disregarding the testimony of both Matobato and his supervisor or “handler,” retired policeman Arturo Lascañas, who has himself confessed to killing at least 200 people in Davao City. Yes, President Duterte seems to continue to disregard previous police rules on engagement, even ignoring the findings of both the National Bureau of Investigation and a Senate committee that police officers executed a suspected drug personality while he was in detention. And yes, judging by the craven decision allowing the burial of the dictator Ferdinand Marcos’ remains at the Libingan ng Mga Bayani, the Supreme Court itself seems ready to read more into Mr. Duterte’s electoral mandate (at 38 percent the second-smallest in our history) than the overwhelming vote ratifying the post-Marcos constitution or, indeed, the many Supreme Court decisions describing or itemizing the perfidy of the Marcos regime.

But it is a mistake to think that those opposed to the Duterte administration’s war on drugs have run out of options here at home. Three-fourths of voting-age Filipinos have said, consistently, that they want suspects to be arrested, not killed; only one-fourth say they trust the police. Public support for this unfortunate war is not as solid as some may think. Perception will change political positions; fact will reinforce judicial independence.