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Commentary

Kian’s case: Convicting small fry not enough

/ 05:18 AM December 13, 2018

Two narratives have emerged in the wake of the Caloocan Regional Trial Court decision convicting three policemen for Kian delos Santos’ death.

First is chief public attorney Persida Acosta’s interpretation of the decision. Acosta thinks the conviction dispels the state-sponsored nature of the murder. Otherwise, the state would not allow criminal proceedings to take place. Judges would not hear the case; the National Bureau of Investigation would not even accompany the Public Attorney’s Office to investigate it. A complicit state would bar any attempt toward accountability.

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Acosta’s argument reflects poor analysis. The opposite conclusion could very well be deduced from the conviction—that the conviction, and the refusal to pardon, is merely the administration’s attempt to give the appearance of pursuing accountability for the drug killings. This argument is as good as any other.

The second narrative is an international law version of the first account. This version suggests that the resolution of Kian’s case would bar the International Criminal Court (ICC) from exercising jurisdiction under the principle of complementarity. As Kian’s case would prove, our domestic legal system works. It shows “ability and willingness” to genuinely prosecute. The ICC, as a court of last resort, should thus cease its preliminary examination and defer to domestic proceedings on the same situation.

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These two narratives, while operating on different legal planes, are used to distract us from the bigger picture—demanding accountability from the persons most responsible for the deaths arising from the drug war. What is conspicuously missing from the second narrative is the application of the “same person, same conduct” test used to assess complementarity under the Rome Statute.

This requires accountability for the persons most responsible for the killings, not just any foot soldier. And, at present, no one with this level of authority has yet been subject to any kind of criminal investigation in the Philippines.

The second narrative is deceptive, because it overstates “ability and willingness” without considering who should be investigated or prosecuted. Those three police officers may have pulled the trigger, but if Kian’s murder is indeed state-sponsored, then their conviction would have no bearing on the ICC preliminary examination.

Kian’s death did not happen at random. It happened during an antidrug operation. In fact, the policemen did not deny that they had shot Kian. Instead, they anchored their defense on the legality of the shooting, as a response to Kian supposedly having resisted

arrest (“nanlaban”).

The question thus turns on who decides the nature of Kian’s death. At state level, there are pending petitions before the Supreme Court seeking protective writs and a determination of constitutionality of the Philippine National Police drug circulars that operationalized “Oplan Tokhang.” This may be useful to confirm the extralegal nature of the killings, but, ultimately, these petitions do not provide for criminal accountability, which the principle of complementarity requires. There is reason to believe that complementarity only contemplates criminal liability, not alternative modes of accountability.

Meanwhile, at the international level, the ICC remains in a position to determine the nature of the killings, including Kian’s death, as part of its preliminary examinations. Under the “same person, same conduct” test, the conviction of Kian’s killers does not foreclose any ICC intervention on the drug war.

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Whether the finding of guilt is done here or abroad, it is not enough to convict the small fry responsible for Kian’s death. The real test for this administration is to hold to account the persons most responsible for enabling it.

Who can those masterminds be? Well, it certainly isn’t police officers Arnel Oares, Jeremias Pereda and Jerwin Cruz.

Kian’s story deserves more than being used as a pawn by apologists to skirt accountability for the administration’s drug war. The conviction of Kian’s killers is a welcome development, but we should demand more if we want justice to be fully served.

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Jenny Domino concurrently holds human rights fellowships at Article 19 and Stratbase ADR Institute, and is a graduate of Harvard Law School. She previously interned at the International Criminal Court. The views expressed by the author are her own.

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TAGS: drug killings, EJKs, extrajudicial killings, Inquirer Commentary, Jenny Domino, Kian delos Santos, war on drugs
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