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Is the Philippines able and willing to credibly investigate and, if warranted, prosecute the crimes attributed to Rodrigo Duterte’s bloody campaign against illicit drugs?
The response will determine whether the International Criminal Court (ICC) can continue its official investigation into possible crimes against humanity committed in the war on drugs, with Duterte primarily responsible under the doctrine of command responsibility.
The answer is not clear cut and can be considered subjective.
Relatives of the thousands killed in police anti-narcotics operations as well as human rights defenders turned to the ICC under the Duterte administration precisely because they believed justice was not possible under his direction.
Today, they find that while a new administration is in place, those responsible for the pillars of justice are either the same old faces or allies of Duterte.
Furthermore, they point out that the offenses qualified as crimes against humanity are not written into the laws of the country and therefore cannot be properly prosecuted.
With President Marcos’ decision to keep the country out of the ICC, these groups see no hope for justice, even with the change in leadership and Duterte’s loss of presidential immunity.
The government, on the other hand, claims that while the country’s criminal justice system may be flawed and notoriously slow, it is not incapable or unwilling to do so; the system works, so the country has primary jurisdiction over offenses committed on Philippine soil.
Solicitor General Menardo Guevarra, who began looking into about 6,200 drug-related murders by lawmen when he was Duterte’s justice secretary, said the scale and complexity of the cases were slowing down the determination of possible abuses by the police.
The review has so far uncovered only 52 cases in which accounts of people being killed for resisting arrest or nanlaban appear questionable. Only one case resulted in an indictment by a court.
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Lawyer Harry Roque, acting as privy counsel to the Marcos administration on this issue, pointed out that the ICC is meant to function primarily as a court of last resort, for failed states like Sudan where there is no no legal system to speak of.
Even though crimes against humanity are not specifically listed as offenses in Philippine law, the country can prosecute such cases, according to Roque. He points out that the Supreme Court allowed it in the case of Japanese General Tomoyuki Yamashita, who was convicted and hanged in the Philippines for war crimes committed by Japanese soldiers during World War II. The doctrine of command responsibility, referred to as the “Yamashita standard”, was adopted in the Geneva Conventions and later by the ICC.
Roque says the country has also successfully prosecuted crimes covered by the ICC’s mandate, with six or eight convictions in Marawi for offenses in areas of armed conflict, including sexual slavery and recruitment of children as combatants. . Thus, the capacity and the will to prosecute are there, and the regional trial courts of the Philippines are granted primary jurisdiction over offenses related to the war on drugs.
The intervention of the ICC would then be considered an interference and an attack on the sovereignty of the Philippines.
Duterte believes the Philippines ratified the Rome Statute on the condition that the ICC “be an absolute court of last resort and not the court of first instance,” Roque told “The Chiefs” on One News on Wednesday night.
Roque says there is a specific internationally accepted definition for “incapable” – “it means there is no functioning state”.
As for “denial,” he says, Philippine presidents only enjoy immunity from prosecution while in office.
When the country ratified the Rome Statute, he adds, “the intention was never to allow the ICC to substitute for national judicial proceedings”.
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Roque acknowledges that the ICC has jurisdiction over cases committed while the state was a party to the Rome Statute, before the Philippines’ withdrawal. But he points out that jurisdiction is different from the admissibility of a case, under which the ICC must consider “whether national institutions are not operating at full capacity” and are unable and unwilling to prosecute.
He attributes the prosecutions undertaken by Gambian Fatou Bensouda when she was the ICC’s chief prosecutor to “politics” – to deflect criticism that she focused on African states.
Roque told us he warned Bensouda against scaring other member states into staying in the ICC because of his preliminary examination of Duterte’s war on drugs.
The entire African Union, Roque claimed, is also set to withdraw from the ICC, and Malaysia has suspended plans to join. In Southeast Asia, only Cambodia, with its history of genocide under the Khmer Rouge, and Timor-Leste are members of the ICC.
This is a warning that the ICC cannot take lightly. The world powers of the United States, China and Russia are not members, precisely for questions of sovereignty. The ICC would not welcome a hemorrhage of membership if it were seen as violating the principle of complementarity, under which states accede to the Rome Statute, on the understanding, as Roque put it, that the ICC “does not (would) never function as a trial court”. jurisdiction.”
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President Marcos has engaged Roque’s counsel, and BBM’s decision to keep the country out of the ICC signals that he is listening to the lawyer who once championed the Philippines’ ratification of the Rome Statute.
Due to the shadow cast by his father’s human rights record, the issue is not straightforward for Ferdinand Marcos Jr., who as a senator also voted for ratification. Several senators said they could speak with BBM and urge him to reconsider.
Marcos should be aware that he is under intense scrutiny on human rights and corruption issues. The European Union, with which the country has a preferential trade agreement, is monitoring its movements on the ICC issue.
When asked if BBM might change its mind about bringing the Philippines back to the ICC, Roque replied, “You know, unless the prosecutor stops this charade of prosecutions, I don’t think it’s possible.”
Roque said that in the event of a formal ICC investigation, Duterte intends to seek a restraining order from the Supreme Court, preventing police from executing any arrest warrants.
Duterte can now be prosecuted in Philippine courts, alongside his tokhang leader, Senator Ronald dela Rosa, and his first justice secretary, Vitaliano Aguirre, who were named in the ICC investigation.
Plaintiffs in the War on Drugs are encouraged to exhaust all legal remedies in the Philippines.
The question is whether the plaintiffs have enough faith in the country’s justice system to press charges of systematic extrajudicial executions on behalf of law enforcement.