[OPINION] Respect for national proceedings?

In the recent Assembly of State Parties of the International Criminal Court, Harry Roque asserted that the ICC must respect “national proceedings.” In support of his assertion, he stated that there is an intimate link between terrorism and drugs and that there are “ongoing national proceedings involving terrorism and drugs.” He further asserted that ICC must resist attempts to use it as a means of political advancement of the political opposition.

But first let us clarify: What is the precise criminal matter being brought and pending before the ICC? To be sure, it is not about terrorism and drug trade. To be sure, terrorism and drug trading are not crimes within the jurisdiction of the ICC. There are only 4 serious international crimes of concern to the international community as a whole, namely; genocide, crimes against humanity, war crimes, and crime of aggression. 

What is pending now in the ICC rather is the matter of the criminal case for crime against humanity through mass murder committed by Duterte arising from his repeated, continuing and unchanging system of death squad killings ever since his Davao Death Squad. As mastermind of this system, Duterte continued and carried it out this system in his war on drugs at the national level.

There is no allegation in the ICC that Duterte engaged in drug trading. Neither is there an information that killings have been made by Duterte in the context of his purported anti-terrorism campaign in connection with drugs in Marawi.

While it may be conceded that drugs and terrorism may be connected, the case against Duterte for mass murder in the ICC is not being made in the context of the connection between drugs and terrorism.

What is being alleged in the ICC is that Duterte created, authored, installed a system of death squad killings as a method of crime control in Davao which he continued in his war on drugs at the national level. The case is for crime against humanity through mass murder in the context of the murderous drug campaign of Duterte.

It is respectfully submitted that under the Rome Statute, complementarity means that the Duterte death squad regime should have conducted and must conduct a national criminal investigation against Duterte himself as mastermind of the system of death squad killings in his war on drugs.

It is precisely the duty of the state through the Duterte death squad regime to conduct such national criminal investigation pursuant to the International Covenant on Civil and Political Rights and the Rome Status itself. The state has the duty to end impunity.

Up to now, there is no such national criminal investigation against Duterte, despite urgings, requests, or demands from international NGOs like Amnesty International and Human Rights Watch, governments like the European Union, the UN and its agencies like the UN Human Rights Council and others concerned.

More importantly, there is no way that the Duterte death squad regime is willing or able to conduct such national criminal investigation against Duterte himself. As I have repeatedly said, how can that regime conduct such investigation when Duterte himself is the head and mastermind of this big death squad regime?

If what Harry Roque means about “national proceeding” is such national criminal proceeding against Duterte, the question is to be asked: is there or has there been such national criminal investigation against Duterte in the first place? Or will there ever be such investigation? If there has been no, or there is no, such national criminal investigation against Duterte, what is there to respect in the first place?

If what Harry Roque means by “national proceeding” is an investigation against policemen, that will not satisfy the complementarity principle because complementarity requires a national criminal investigation against persons “who bear the greatest criminal responsibility.”

It is true there was a Senate investigation, but it was cut short by Duterte’s lapdogs in the Senate. It was a cover up to shield Duterte from criminal from responsibility. For how do you explain the utter shameful failure of the Senate lapdogs to push for a national criminal investigation against Duterte?

Complementarity means that when a state party (1) fails to conduct such national criminal investigation, (2) renders the matter “inactive,” or (3) enables the ICC to act by way of its action like the Senate cover up – all in order to shield Duterte from criminal responsibility – then the ICC can exercise its complementary jurisdiction, as ruled by the ICC in the early case of Germain Katanga from the Democratic Republic of Congo (DRC).

By way of precedent, the ICC has exercised its complementary jurisdiction in the situations in Kenya, Uganda, and DRC where there is a functioning court system. In the Kenyan situation, it was a crime arising from political violence in an election and the ICC exercised jurisdiction despite a functioning national court.

In the Ugandan case, even if there was a functioning court system, still the ICC acquired jurisdiction, because a previous amnesty meant that no national criminal investigation could be made. In our case, the question must be raised: Can Duterte be prosecuted here with his presidential immunity from suit which is non-existent in the ICC?  It must be here noted that sovereign immunity from suit has been a rejected principle in international criminal law in relation to crime against humanity since the Nuremberg Trial after world war 2.

In the case of the DRC, the crimes were committed in the province of Ituri where the best-functioning courts were located, but the ICC exercised its complementary jurisdiction.

It would have been usual if a certain group committed crime against humanity in Philippine territory, in which case the Philippine government could refer the matter to the ICC just like the situations in Uganda, DRC, and the Central African Republic.

But in our case, it is Duterte himself who is being alleged to be complicit in the crime. The case of Kenya which arose from violence in an election illustrates the mandate of the ICC to intervene even if the criminal case arose from the context of an election which is eminently political.

It is true that Edgar Matobato was presented by Senators Leila de Lima and Antonio Trillanes IV in the Senate. Arthur Lascañas was also presented later by Senator Trillanes. The Senate is a political body which could have pushed for a national criminal investigation against Duterte, but it did not. By and large, albeit not a national criminal investigation, the Senate probe was far from being fair, independent and impartial.

While politics may have a role to play in bringing the matter to the attention of the nation and the world, the criminal case in the ICC is not purely political in nature.  One should not lose sight of the more important consideration that there is a crime committed against the Rome Statute which requires an effective remedy in the ICC, in a national situation where the death squad regime is complicit, does not and will not investigate Duterte himself.

In the ultimate sense, if what Harry Roque means by “national proceedings” is the “war on drugs,” it is a laughable assertion, because it is not a “national criminal proceeding” to which the ICC is complementary and which therefore the ICC must respect.  Should the war on drugs be entitled to respect where Duterte’s system of death squad killings is being carried out resulting in thousands of deaths?

Indeed, the drug war is, instead, the precise context that has given rise to mass murder through Duterte’s system of death squad killings. Elementary principles of criminal law, both here and in the ICC, should instruct a lawyer worth his salt that such drug war does not justify or excuse the commission of crime against humanity through mass murder being committed repeatedly, unchangingly, and continuously by Duterte.

Respect, instead, for international criminal law demands that Duterte should be brought to international criminal justice in The Hague.

Bring Duterte to The Hague! – Rappler.com

Lawyer Jude Josue L. Sabio filed a mass murder complaint  against President Rodrigo Duterte before the International Criminal Court in The Hague, The Netherlands, in May. He is the lawyer of self-confessed Davao Death Squad hitman Edgar Matobato.