The International Criminal Court (ICC) could “definitely and absolutely” acquire jurisdiction of President Rodrigo Duterte, Sen. Leila de Lima said on Tuesday, noting the failure of courts to investigate the drug war killings.
In her response to Prof. Randy David’s Sunday column in the Philippine Daily Inquirer, De Lima said that the concept of complementarity revolves around the country’s “inability or unwillingness to investigate” the offenses, not the exhaustion of domestic legal remedies.
“The Rome Statute provides for several steps in the acquisition of jurisdiction over a possible case for prosecution at the ICC,” De Lima said in a statement.
“The key to ICC’s assumption of jurisdiction is the State party’s inability or unwillingness to investigate the situation and prosecute the case, not the non-exhaustion of domestic legal remedies,” she added.
De Lima said that domestic legal remedies need not first be exhausted before the ICC assumes jurisdiction.
All the tribunal needs, the detained senator said, is to find at the preliminary examination stage that the State is unable or unwilling to probe the offenses being committed, “either because of the absence of a functioning legal system or sheer acquiescence and complicity in the offenses.”
“The ICC can also determine that the State party is unwilling to take cognizance of the offenses if the interest it undertakes is simulated or is geared towards exonerating the offender, especially when the legal process is heavily compromised because of the power and control the perpetrator exercises over government,” she added.
She said that in the Philippines, the whole justice system is “heavily compromised” as almost all senior justice officials of the administration are “complicit” in the offenses under examination.
“There is clearly an executive policy to summarily execute suspected drug offenders and criminals through fake encounters or by employing vigilantes,” De Lima said.
She said: “How can we expect Secretary of Justice Vitaliano Aguirre II to initiate a serious investigation on Duterte and the death squads of the [Philippine National Police] if he obstructed the exhumation of the remains of Davao Death Squad victims as the lawyer of Bienvenido Laud, the property owner of the DDS mass grave?”
She also cited the Ombudsman’s dropping of its investigation on DDS because of the principle of presidential immunity, wherein the incumbent president is immune from any suit.
In a speech last week, Duterte said that the ICC could never acquire jurisdiction over his person, “not in a million years.”
“You cannot acquire jurisdiction over me not in a million years kaya ‘di ko sinasagot. Totoo ‘yan. Ayoko sabihin that has always been my weapon ever since. Shit. Maniwala ka diyan,” Duterte said.
Presidential Spokesperson Harry Roque also said that campaign against illegal drugs cannot be considered as a crime against humanity because it serves a “legitimate purpose,” which is to curb the proliferation of illegal drugs.
“The President’s stance has been the same—that because the Philippine courts are able and willing, the International Criminal Court has no jurisdiction,” he said in a press briefing last Wednesday.
De Lima said she was confident that ICC prosecutor Fatou Bensouda notices the “continuing attacks and maligning of Duterte on her person, the ICC, and other UN human rights personalities.”
She also said that while the ICC process takes time, the tribunal’s move against Duterte “is considered a fast action by ICC standards.”
The ICC in February launched a preliminary examination on Duterte’s bloody campaign against illegal drugs, which was believed to have killed thousands of suspected drug criminals.
It will determine if there is a “reasonable basis” to proceed with an investigation in accordance to the criteria established by the Rome Statute.
The ICC has jurisdiction on genocide, crimes against humanity, and war crimes.
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