The Duterte administration must not dismiss with cavalier attitude the possibility of the International Criminal Court (ICC) taking jurisdiction over charges against President Duterte for involvement, enticement and/or condonation of extrajudicial killings related to the deadly campaign against the drug menace which may be considered crimes against humanity.
The Philippines ratified the Rome Statute of the ICC on 30 August 2011. We became the 117th state party to this treaty, the second ASEAN country to do so.
The Philippines effectively localized the Rome Statute of the ICC when it enacted on 11 December 2009 R.A. No. 9851 entitled “Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity”.
The principle of command responsibility has been institutionalized under R.A. No. 9851 wherein “a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command or control or effective authority and control as the case may be as a result his/her failure to properly exercise control over such subordinates”.
The Supreme Court in Boac vs. Cadapan ruled on 31 May 2011 that R.A. No. 9851 enunciated “command responsibility as a form of criminal complicity on crimes against international humanitarian law, genocide and other crimes.”
This principle of jurisdiction, however, interplays with the principle of complementarity. It means national jurisdictions, just like the Philippines, have primacy over the ICC, as far as investigating, prosecuting and trying cases – like the crime against humanity of murder under the Rome Statute of the ICC – are concerned.
But such state-initiated investigations, prosecutions, and trials should not be a mere facade, but rather an impartial, honest, and good faith investigation, prosecution, and trial. Otherwise, the ICC can step in, pursuant to the principle of complementarity, if the Philippines is shown to be unwilling or unable to investigate, prosecute, and try in good faith.
EDCEL C. LAGMAN