Administration officials try to help President Rodrigo Duterte evade the jurisdiction of the International Criminal Court (ICC) by foisting the principle of complementarity. This means the ICC will not exercise jurisdiction over the perpetrators of covered offenses, like crimes against humanity and massive extrajudicial killings (EJKs), if the country’s domestic authorities, principally the courts, are functioning and the alleged offenders are prosecuted impartially and independently.
Complementarity is recognized in the Preamble of the Rome Statute which provides that the “International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions”, which Article 1 of the Rome Statute reiterates. Consequently, the ICC defers to the national criminal jurisdictions, in warranted instances, to preclude overlapping and respect the national forum.
However, Article 17.2 of the Statute explicitly provides that complementarity will not apply in the following cases:
“(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
“(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
“(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.” (Emphasis supplied).
Following the country’s stance on complementarity, Justice Secretary Menardo Guevarra reported on Feb. 24, 2021 to the United Nations Human Rights Council (UNHRC) that in June 2020 an interagency review panel was created to examine “cases of anti-illegal drug operations where deaths occurred.”
He further reported that “initial and preliminary findings confirm that in many of these cases, law enforcement agents asserted that the subject of the anti-drug operations resisted arrest or attempted to draw a weapon and fight back. Yet no full examination of the weapon recovered was conducted, no verification of its ownership undertaken, and no request for ballistic examination or paraffin test was pursued until its completion.”
He also stated that “[w]e have referred these initial findings to national police authorities, and we have been informed that the appropriate internal investigation of thousands of these incidents had been conducted, and scores of police officers had been recommended for administrative and criminal action.”
Finally, the cat is out of the bag on the real purpose of the report when Guevarra told the UNHRC that “[w]e reject any attempt by any external entity to assume jurisdiction over internal matters which are being addressed more than adequately by our national institutions and authorities.”
Guevarra has not disclosed anything which is not yet known on the sham “nanlaban” alibi and the virulence of the Duterte administration’s war on drugs. Admittedly, the Department of Justice (DoJ), which heads the government’s prosecution arm, failed to file the appropriate cases in court against the culprits, and instead referred back the matter to the police authorities, the acquiescing mother agency of the errant State agents.
Four months after Guevarra made his report via virtual platform, there is no official release of the purported report of the interagency review panel. There is no confirmation on how many police officers are administratively and criminally prosecuted, if any. There is no official disclosure on the total number of summary killings of suspected drug dealers and users.
Worse, Guevarra did not say that the panel investigated the participation of President Duterte by instigation and condonation in the EJKs despite his recorded, repeated, and remorseless utterances inducing the commission of summary executions and protecting the police culprits from prosecution.
Considering the foregoing, President Duterte cannot escape from ICC’s jurisdiction on the ground of complementarity because:
The inquiry of the review panel was obviously feigned and contrived to technically comply with complementarity.
The investigation’s delay is unjustified considering that Guevarra’s tentative report on Feb. 24, 2021 is three years after the preliminary examination by the ICC’s prosecutor was announced on Feb. 8, 2018.
The inquiry was conducted as a smokescreen to shield President Duterte himself – the person allegedly principally responsible for the covered offenses.
Since the inquiry was conducted upon the initiative and under the auspices of the DoJ whose secretary is the President’s alter ego, the investigation was not conducted independently or impartially. Definitely, the justice secretary would not ensnare into culpability his very patron and the perpetrators protected by the presidential shield.
Except for the conviction of the police culprits in the murder of Kian delos Santos, there is no report of any case similarly successfully prosecuted and adjudicated in the proper Philippine courts. It should be stressed that complementarity principally pertains to the action of the country’s “national criminal jurisdictions” or the courts.
Legally, complementarity cannot be invoked for President Duterte because no Philippine court has jurisdiction over him as an incumbent since he enjoys immunity from suit. Only the ICC has jurisdiction over him for covered offenses which he has allegedly committed or instigated during the time before the Philippine withdrawal from the Rome Statute became effective in March 2019.
The full investigation by the ICC prosecutor of President Duterte, among others, for crimes against humanity and EJKs consequent to his unabated brutal war on drugs, answers the incessant calls for justice and accountability. This will also end impunity, which mocks the rule of law and makes a travesty of human rights.
The voters in 2022 must reject the candidates of President Duterte, whose administration is stained with drug blood, sullied by violations of the rule of law, and seared by the agonies of hapless victims and their kin.