Primary jurisdiction

Is the Philippines able and willing to credibly investigate and, if warranted, prosecute the crimes imputed in Rodrigo Duterte’s bloody campaign against illegal drugs?

The answer will determine if the International Criminal Court (ICC) can proceed with its formal investigation of possible crimes against humanity committed in the war on drugs, with Duterte primarily responsible under the doctrine of command responsibility.

The answer is not cut and dried, and may be deemed subjective.

Relatives of the thousands slain in police anti-narcotics operations as well as human rights advocates turned to the ICC during the Duterte administration precisely because they believed justice was not possible under his watch.

Today they note that while a new administration is in place, those in charge of the pillars of the justice system are either the same old faces or else allies of Duterte.

Also, they point out that offenses classified as crimes against humanity are not written in the country’s statute books, 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 leadership change and Duterte’s loss of presidential immunity.

The government, on the other hand, says that while the country’s criminal justice system may be flawed and notoriously slow, it isn’t unable or unwilling; the system is working, so the country has primary jurisdiction over offenses committed on Philippine soil.

Solicitor General Menardo Guevarra, who began reviewing about 6,200 drug killings by lawmen when he was Duterte’s justice secretary, has said that the magnitude and complexity of the cases slowed down the determination of possible police abuses.

The review has so far unearthed only 52 cases wherein stories of those killed for resisting arrest or nanlaban appear questionable. Only one case has led to a court indictment.

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Lawyer Harry Roque, acting as private counsel for the Marcos administration on this issue, has stressed that the ICC is supposed to function mainly as a court of last resort, for failed states like Sudan where there is no justice system to speak of.

Even if crimes against humanity aren’t specifically listed among the offenses in Philippine laws, the country can prosecute such cases, according to Roque. He points out that the Supreme Court allowed it in the case of Japanese Gen. 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, called 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. So the ability and willingness to prosecute are there, and Philippine regional trial courts get primary jurisdiction over offenses linked to the war on drugs.

Having the ICC step in would then be considered interference and an infringement on Philippine sovereignty.

Duterte believes the Philippines ratified the Rome Statute on the condition that the ICC “would be a court of absolute last resort and not the court of first instance,” Roque told “The Chiefs” on One News Wednesday night.

Roque says there is a specific internationally accepted definition for “unable” – “it means there is no functioning state.”

As for “unwilling,” he says Philippine presidents enjoy immunity from prosecution only while in office.

When the country ratified the Rome Statute, he adds, “the intention was never to allow the ICC to be a substitute to domestic legal proceedings.”

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Roque does acknowledge that the ICC has jurisdiction over cases committed while the state is a party to the Rome Statute, before the Philippines’ withdrawal. But he stresses that jurisdiction is different from admissibility of a case, under which the ICC must consider “if domestic institutions are not working full-stop” and are unable and unwilling to prosecute.

He attributes the proceedings initiated by Gambian Fatou Bensouda when she was chief ICC prosecutor to “politics” – to deflect criticisms that she was focusing on African states.

Roque told us that he warned Bensouda about scaring away other member states from remaining in the ICC because of her preliminary examination of Duterte’s drug war.

The entire African Union, Roque maintained, is set to pull out as well from the ICC, and Malaysia put on hold its plan to join. In Southeast Asia, only Cambodia, with its history of genocide under the Khmer Rouge, and Timor-Leste are ICC members.

It’s a warning that the ICC cannot treat lightly. Global powers the United States, China and Russia are not members, precisely because of sovereignty issues. The ICC would not relish a membership hemorrhage if it is seen to be violating the principle of complementarity, under which states join the Rome Statute with the understanding, as Roque put it, that the ICC would “never (function) as a court of primary jurisdiction.”

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President Marcos has engaged the counsel of Roque, and BBM’s decision to keep the country out of the ICC indicates that he’s listening to the lawyer who once championed Philippine ratification of the Rome Statute.

Because of the shadow cast by his father’s human rights record, the issue is not simple for Ferdinand Marcos Jr., who as a senator had also voted for the ratification. Several senators have said they might talk with BBM and urge him to reconsider his decision.

Marcos must be aware that he is under minute scrutiny on issues concerning human rights and corruption. The European Union, with which the country has a preferential trade agreement, is watching his moves on the ICC issue.

Asked if BBM might change his mind on the Philippines’ rejoining the ICC, Roque replied: “You know, unless the prosecutor stops this charade of a prosecution, I don’t think it’s possible.”

Roque said in case of a formal investigation by the ICC, Duterte intends to seek a restraining order from the Supreme Court, stopping the police from enforcing any arrest warrant.

Duterte can now be sued in Philippine courts, along with his chief tokhang enforcer, Sen. Ronald dela Rosa, and his first justice secretary, Vitaliano Aguirre, who were named in the ICC probe.

Complainants in the drug war are being encouraged to exhaust all legal remedies in the Philippines.

The question is whether the complainants trust the country’s justice system enough to pursue accusations of systematic extrajudicial killings in the name of law enforcement.