In the wake of the thousands of victims of extrajudicial killings resulting from President Duterte’s murderous war on drugs, lawyer Jude Sabio filed last April 27, 2017 the first communication and complaint against the President before the International Criminal Court. Sabio argues in his complaint that the deaths of thousands of Filipinos in a brutal war on drugs is Duterte’s method of controlling crime, and that he used the tactic effectively during his 22 years as the mayor of Davao City in the south of the country. He wants Duterte arrested.
A 45-page supplemental communication was thereafter filed by Senator Antonio Trillanes and Magdalo Party-list Rep. Gary Alejano to provide updates to the submitted communication of Atty. Jude Sabio. Trillanes explained: “The case of crimes against humanity against Duterte is very solid. He repeatedly, explicitly and clearly pronounced a national policy of killing drug suspects and the PNP executed it. Moreover, the Philippines, being a state party and Duterte being a Filipino, satisfy jurisdictional requirements. Any Filipino lawyer who says otherwise, should read the ICC policy papers first.”
Last Aug. 27, 2018 a second Communication and complaint was filed against Duterte before Prosecutor Fatou Bensouda of the International Criminal Court. The complainants are the Rise Up for Life and for Rights, a network of church people, human rights advocates and the victims and families of the affected communities in the Philippines working in defense of life and protection of human rights particularly against drug-related killings, and six victims of Duterte’s war on drugs. Thankfully, the victims of the massacre of the poor have finally risen up to make Duterte accountable for what his government has done and what it has failed to do.
This column is the first of a series based on this latest communication. I have no knowledge of the state of the preliminary examination currently being conducted on the Philippines case and whether or not the prosecutor will decide to bring this case to the next level of a formal investigation that will eventually lead to the issuance of an arrest warrant against Duterte and other officials. But my sense is that this could come to a head soon. Doing this article is thus a public service to help people understand why President Duterte is so afraid of the ICC and what this process is all about.
The 50-page Communication and Complaint charges Duterte with committing Crimes Against Humanity under Article 7 of the Rome Statute of the International Criminal Court for: I. the acts of Murder under Article 7, paragraph 1 (a) for the extrajudicial killings of thousands of Filipinos; and II. other Inhumane Acts under Article 7, paragraph 1 (k) for causing great suffering to the victims and their families.
Complainants aver that President Duterte is guilty of Crimes against Humanity, specifically murder and other inhumane acts constituted by: (a) Widespread and systematic attacks against civilians in the form of murder of thousands of civilians proscribed under Article 7, paragraph (a) of the Rome Statute through his publicly-pronounced policy against drug suspects, through police directives Oplan Double Barrel, Oplan Tokhang2, Oplan Double Barrel Alpha, and Oplan Double Barrel Reloaded, resulting in the death of at least 4,410 persons in police operations (as of July 31, 2018) to up to 23,000 since he assumed office on June 30, 2016; and, (b) Widespread and systematic attacks against civilians in the form of inhumane acts intentionally causing great suffering, or serious injury to body or mental or physical health proscribed under Article 7, paragraph (k) of the Rome Statute under his anti-drug policy and anti-criminality campaign including Oplan Double Barrel and its permutations, and Oplan Tokhang.
Complainants assert that the President is guilty of crimes against humanity, for the above acts: President Rodrigo Duterte is criminally responsible and liable for the above mentioned murders, and other inhumane acts, under Article 25, paragraphs 2 and 3 of the Rome Statute being the most senior leader and most responsible for these crimes. And that the President is criminally responsible, under the principle of command responsibility under Article 28, paragraphs (a) and (b), being the commander and superior authority over the police and other state security forces who committed the above mentioned acts of murder, inhumane acts, and other forms of persecution in the implementation of his policy against suspected drug and crime suspects.
Complainants further argue that they have satisfied the admissibility requirements under the Rome Statute because firstly, the extrajudicial killings, mass arrests, and other inhumane acts committed by and under President Duterte are so grievous and so heinous that is of sufficient gravity to justify further action of the Court; Secondly, President Duterte is not being investigated or prosecuted and he has not been previously investigated or prosecuted for the extrajudicial killings that he ordered and allowed to persist during the period of his presidency, nor has he been previously tried for conduct which is subject of the complaint.
The complainants assert that the Philippines’ deposit of a written notification with the United Nations to withdraw from the ICC is of no moment and does not deprive the ICC of jurisdiction. Based on the Rome Statute, according to complainants, a party’s withdrawal, as what the Philippines supposedly did under the present administration, shall not take effect until one year from its deposit of the notification of withdrawal or until March 16, 2019. Since the Complaint is filed during the period that the Philippines is a State Party, the Court is not ousted of its jurisdiction by such notice of withdrawal. Furthermore, according to the complaint, the provision is clear that said withdrawal shall not prejudice―any matter which was already under consideration‖ by the Court prior to the date on which the withdrawal became effective, on or before March 16, 2019.
In the next columns, I will provide more details on the case against Duterte while reserving my personal assessment on the case for the final column.
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