ICC prosecutor targets DOJ, OSG
International Criminal Court (ICC) prosecutor Karim Khan wants to continue his preliminary investigation into “crimes against humanity” allegedly committed during the incumbency of Rodrigo R. Duterte as Davao City mayor on Nov. 1, 2011-June 30, 2016, and as president on July 1, 2016-March 16, 2019. Duterte’s political allies led by President Bongbong Marcos, former president Gloria Macapagal Arroyo, and several lawmakers have come to his defense. As a retired jurist, let me comment within my limited space on three crucial legal issues and leave the political overtones to our politicians.
LET ME BEGIN WITH SOVEREIGNTY. Our political leaders say that, as a sovereign state, the Philippines enjoys absolute control over its territory and will not allow external interference. However, such absolute control is partly surrendered whenever our country enters into treaties or international statutes.
Thus, it ceded a portion of its sovereignty when our Senate ratified on Aug. 30, 2011, the “Rome Statute” that created the ICC. It bound itself to the Statute’s provision that the ICC continues to have jurisdiction over crimes committed while the Philippines was still a member, which are exactly the dates zeroed in by Khan.
THE SECOND CRUCIAL ISSUE REFERS TO THE KIND OF CRIMES that could be subjected to the authority of the ICC. Under Article 5, these are “(a) the crimes of genocide; (b) the crimes against humanity; (c) war crimes; and (d) the crime of aggression.” Article 7 includes under “crimes against humanity” any “act committed as part of a widespread and systematic attack directed against any civilian population with knowledge of the attack: (a) Murder…” (Bold types supplied)
Our government’s counsel, the Office of the Solicitor General (OSG) headed by the talented Menardo Guevarra, flatly denied the commission of any crime against humanity through murder because the “alleged killings … from 1 November 2011 to 16 March 2019 were not pursuant to a state or organizational policy of sanctioning crimes … [rather, they were] legitimate operations against illicit drugs … not … attack[s] against the civilian population … these are ordinary crimes, not crimes against humanity.”
This issue refers really to factual matters that need proof; thus, at this point, it deserves no further comment. Suffice it to say for now that, pursuant to the Statute, Khan is asking the ICC’s Pre-Trial Chamber to allow him to continue his preliminary investigation (which had been suspended at the request of our government) to enable him to assess these factual matters. Unlike in the Philippine and US legal systems, the ICC prosecutor is barred from conducting any preliminary investigation without prior authority from the ICC’s Pre-Trial Chamber.
THE THIRD ISSUE, COMPLEMENTARITY, IS PIVOTAL. Under this principle, the primary responsibility to investigate and prosecute crimes is lodged in our police force, the Department of Justice (DOJ), and the OSG while the organs authorized to try and judge them are the Philippine courts.
Under Article 17 of the Statute, the ICC will decline a case if it is already “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.” (Bold types supplied)
I hope and pray that the immediate targets of Khan, the DOJ, and the OSG, will be able to show their (1) willingness and (2) ability to investigate and prosecute the subject crimes (3) genuinely; and to demonstrate that they truly conduct real investigations and prosecutions of the lawless killers of drug suspects estimated by our government at 6,117, and by critics at 30,000.
If the Pre-Trial Chamber allows Khan to continue his investigation, and issues arrest warrants against the main characters involved — former president Duterte and his officials — our country’s reputation would be severely tarnished. It would be mercilessly debased and numbered among failed African states which have been ICC’s prowling grounds.
Though our courts are not directly involved, still, as parts of our legal system, they would also be unfairly smeared. Our Supreme Court is admired as the most powerful in the world because it is the only tribunal constitutionally mandated to strike down grave abuse of discretion. And, it has indeed courageously struck down gravely abusive acts of presidents, Congresses, and other officials and offices.
When I was an incumbent, I visited, together with many colleagues, several top jurists of the world who reciprocated by visiting us, and publicly praised our Supreme Court. Among them were Canadian CJ Beverley McLachlin, Chinese CJ Xiao Yang, Russian CJ V. Lebedev, Israeli CJ Dorit Beinisch, French CJ Guy Canivet, and US Justices Sandra O’Connor and Anthony Kennedy who became my personal friends.
Indelibly tainted likewise would be revered Filipino jurists acclaimed for their membership in world tribunals, like Cesar Bengzon (International Court of Justice), Florentino Feliciano (World Trade Organization), and Raul Pangalangan (recent retiree of the ICC).
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