Just when the country busied itself in the hosting of the Asean Summit held in Manila last week, a news item competed for front page attention. It was the filing of a complaint against President Rodrigo R. Duterte and 11 other senior officials of the administration by lawyer Jude Josue Sabio, the legal counsel of Edgar Matobato who has confessed to being a hitman of the Davao Death Squad, at the International Criminal Court in The Hague. What are the prospects of President Duterte getting indicted in the ICC?
Sabio alleged in his 77-page complaint that since Duterte became president, “more than 7,000 drug-related killings by police and unknown armed persons occurred in his war on drugs at the national level.” He also said that this “continuing commission of mass murder constituting a crime against humanity falls within the subject matter jurisdiction” of the ICC. Notably, Sabio did not claim that he had personal knowledge of his alleged facts as he himself said that the allegations he presented are largely based on the testimony of his client Matobato and Arturo Lascañas, a retired police officer, as well as media reports.
The ICC is an international tribunal that started to function on July 1, 2002 when the Rome statute—a multilateral treaty among 124 states—came into force. It has the jurisdiction to prosecute individuals for the international crimes of genocide, war crimes and crimes against humanity.
The ICC traces its beginnings to post World War I with the establishment of an international tribunal to judge political leaders accused of international crimes. After World War II, the allied powers established ad hoc tribunals to prosecute axis power leaders accused of war crimes. The International Military Tribunal which sat in Nuremberg prosecuted German leaders who perpetrated the Nazi war crimes directed against Jews while the International Military Tribunal for the Far East in Tokyo prosecuted Japanese leaders. These trials led to the advocacy by Benjamin Ferencz, an investigator of Nazi war crimes, for the establishment of international rule of law and an international criminal court. Much later, or in 1989, the Prime Minister of Trinidad and Tobago revived the idea of a permanent international criminal court by proposing that such a tribunal be created to deal with the illegal drug trade. While a statute was being drafted upon the instruction of the UN General Assembly, two ad hoc tribunals were created by the United Nations in early 1990s. One tribunal prosecuted and tried the large scale atrocities committed by armed forces during the Yugoslav wars and the other, to try the Rwandan genocide. These cases show the gravity, magnitude and nature of crimes meant to be tried at the ICC.
The complaint filed by Sabio alleges that President Duterte should be investigated and prosecuted for crimes against humanity for the death of thousands in connection with his war on drugs. I like to think that Sabio, being himself a lawyer, knows that his action will only embarrass the President—or him—but will not prosper at the ICC. Sabio’s complaint misses two major points. One, as defined in the Rome statute, crimes against humanity refer to acts “committed as part of a widespread or systematic attack against a civilian population xxx.” The war on drugs waged by President Duterte is not blindly directed at a civilian population but against criminals engaged in the trade of illegal drugs. President Duterte’s war on drugs is, in fact, aimed to protect helpless civilians and citizens against the illegal drugs trade which has fomented heinous crimes and destroyed the lives of millions who have gotten hooked to it. Crime records show that since the onset of the war on drugs, the rate of crime in the Philippines has gone down.
The second but most important point missed by Sabio is that the ICC is guided by the complementarity principle. This means that the ICC will only prosecute an individual if a state is unwilling or unable to prosecute. Thus, if there are ongoing legitimate investigations or proceedings involving the alleged crimes committed by an alleged perpetrator, the ICC will not take any action. It must be remembered that in the case of President Duterte, an impeachment complaint was filed against him in Congress by Magdalo party list representative, Gary Alejano, essentially grounded on the same allegations relied upon by Sabio in his ICC complaint. Also, the Senate has conducted investigations on the alleged links of the President to extrajudicial killings. Quite significant too is that there is no indication whatsoever that the Philippine prosecutorial and judicial systems have failed, refused, or been unable to prosecute the alleged crimes against humanity supposedly perpetrated by the President and the 11 others named in Sabio’s complaint. On the contrary, recent surveys have shown that the Filipino citizens favor the war on drugs being carried out by the government. This brings to mind the questions: who, in reality, are behind the filing of the complaint at the ICC? And for what motives? Could they be the very same people who presented Matobato—Sabio’s client-—as a witness in the Senate hearings?