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By Jude Josue Sabio

THE situation presented before the ICC is certainly not manifestly outside of its jurisdiction.  The matter squarely falls within the jurisdiction of the ICC. The matter is also admissible in terms of the requirement of complementarity.   Contrary to opposing view, it is expected that the ICC will proceed with an investigation into the situation.

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The extra-judicial killings committed by Duterte as death squad mayor and as death squad President after August 2011 are within the temporal jurisdiction of the ICC. The Philippines became a party to the Rome Statute of the ICC in August 2011. As regards the Philippines, the ICC has jurisdiction over crimes against humanity committed after August 2011.

The “repeated, unchanging and continuing” extra-judicial killings constitute a widespread and systematic attack against a civilian population, which is a crime against humanity, and are therefore within the subject matter jurisdiction of the ICC. In fact, even just one killing can qualify as crime against humanity, as long as it can be linked to a systematic or widespread attack, just like in this case.

The ICC is ordained to be complementary to national criminal jurisdictions. Thus, in the absence of a national criminal investigation, the ICC can step in by way of its complementary jurisdiction. There is currently no national criminal investigation into the criminal liability of President Duterte in the actual and historical context of the Davao Death Squad.

Should there be such national criminal investigation, it should be demonstrated that the national investigative agencies are unwilling or unable to genuinely conduct and investigation. In this case, the Senate inquiry is not a criminal investigation, but even then, it should have pushed for a national criminal investigation, but it did not.

From the looks of it, the Senate is just shielding President Duterte from being exposed to criminal liability.  For this purpose, it cut short its inquiry and made it “inactive”.  It could also be interpreted that its unwillingness or inability is intended to allow the ICC to immediately assume its complementary jurisdiction.  This stems from the fact that the Senate is dominated by Duterte allies in the supermajority and cannot be expected to directly confront the criminal liability of their foremost political ally, death squad President Rodrigo Duterte.

It is common sense to realize that the Duterte government cannot be expected to investigate the criminal liability of its very own President who has even incited police and mass killings. This is shown by what the Duterte allies did in the Senate inquiry.

The DOJ will not investigate, considering that Secretary Aguirre was the lawyer of Bienvenido Laud in the Avasola case.   The NBI will not investigate, because Director Gierran was one of those tagged by Edgar Matobato as part of the group that fed a person to a crocodile.  This is more true with the PNP, because PNP Chief Bato de la Rosa is complicit with the Davao Death Squad.

The government is headed by President Duterte, the ultimate architect and mastermind of the Davao Death Squad.  Just like what he did in Davao City where he never lifted a finger to investigate the Davao Death Squad, he will also not order an investigation into the killings in the war on drugs, precisely because he is personally involved. His Little President, Atty. Medialdea, the Executive Secretary, acted as lawyer for Bienvenido Laud in the Avasola case and will kow-tow to the President.

The Human Rights Watch and Amnesty International have done a field study of the extra-judicial killings.   Human rights groups in the country as well as the CHR have done also documentations on incidents and victims.  At the formal investigation and later trial in the ICC, these documentations will be presented to prove the deaths that occurred as a result of the system.

It is said that the ICC takes years to act.  But this situation is unique in that the situation has been happening “repeatedly, unchangingly and continuously” over a long period of time ever since Duterte became the death squad Mayor in 1988. Under the situation of prolonged atrocity and given the pile of information available to the Prosecutor in the public domain, it is my view that the Prosecutor will expedite the process.

Knowing the contempt for human rights that death squad President Duterte harbors, it is very likely that he will mock the ICC, as he did when he said that it is “useless”, and will continue in his commission of mass murder. This is especially true in light of his avowed intention to continue with the drug war up to the end of his presidential term.

To stop him, as urged by the New York Times, from the commission of further mass murder, I urged the Prosecutor to apply for a warrant of arrest with the Pre-Trial Chamber, at anytime after opening an investigation.  This is allowed under the Rome Statute.  A warrant of arrest could be a triumph of justice.

A survey of cases shows that the situation referred to the ICC is peculiar, because it pertains to a sitting President’s use of a perceived criminality, in general, in Davao City and the drug menace, in particular, at the national level as a justification to kill persons tagged as criminals or drug addicts or pushers. There appears to be no case of such similar nature in the history of the world, as in fact the cases usually pertain to armed conflicts or political instabilities.

And yet, the international community has observed with deep concern the situation in the Philippines. Both the Human Rights Watch and Amnesty International share the same deep concern. The same is true with domestic human rights groups. The body of opinion is supportive of the view that the mass murder qualifies as a crime against humanity.

The ICC communication could take months, or (hopefully not), years to process, but the important step has been made. The death squad President Duterte and his criminal cohorts cannot enjoy the freedom to live happily after the mass murder, knowing that sometime in the ICC international criminal justice will catch up with them.  History will also be there to judge death squad President Duterte.

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