Complementarity in the ICC

Jude Josue
Sabio .

THE Rome Statute says that the ICC is complementary to “national criminal jurisdiction.”

The settled meaning of complementarity is that when there is no investigation, or the investigation is rendered “inactive”, or the action of the state party can be interpreted to mean that it is enabling the ICC to come in – all for the purpose of shielding the person being charged before the ICC, in this case Duterte, from criminal liability, the ICC must exercise its complementary jurisdiction.

As stated in my humble submission with the ICC, that is precisely the situation in the Philippines.  The Senate could have moved the investigation forward by referring it to the national criminal authorities like the Department of Justice. Dominated by Duterte allies, the Senate kicked out Sen. Leila de Lima as Committee chairman who earlier was the first chairman of the Commission on Human Rights to investigate Duterte when he was mayor. The Senate blocked the inquiry, and instead of just dealing with its function of legislation, it prematurely ruled against Matobato and terminated the inquiry.   The same was true with Lascanas.

Congressman Alejano filed an impleachment complaint against Duterte based on the testimonies of Matobato and Lascanas. The impeachment was a political process but it could have removed Duterte and eventually opened a national criminal investigation.  But his allies in Congress ganged up on Congressman Alejano who was not even allowed to speak up and his impeachment complaint was unceremoniously just thrown out.

In the ultimate sense, there is no political will for a national criminal investigation because Duterte is the head of government which includes the Department of Justice headed by Atty. Aguirre, the long-time lawyer of the alleged Davao Death Squad. He was the lawyer, along with now Executive Secretary Medialdea, of Bienvenido Laud in the Ernesto Avasola case. They blocked and obstructed the search of the Laud quarry. This is not to mention Dante Gierran, the head of the National Bureau of Investigation, and Police Director General Bato de la Rosa are allegedly complicit in the Davao Death Squad.

When Lascanas was part of a group in fetching Atty. Aguirre at the Davao airport to represent Bienvenido Laud, Atty. Aguirre allegedly reminded Laud to clear the quarry of the skeletons, and Laud remarked that it was being done, but others were still there because they could not remember the exact places of the burial. Atty. Aguirre allegedly responded, saying that they would just claim that those were skeletons of dead Japanese soldiers in World War II.

In a government inhabited by key members of the Davao Death Squad, it is well-nigh impossible for Duterte to be investigated. Duterte himself has never condemned the killings, and in fact, instigated police to kill.  It would be wishful thinking for his alter egos like Justice Secretary Aguirre to investigate Duterte who even scoffs at calls to investigate him or who even issue public threats to slap Agnes Callamard. Up to now, despite urgings from different sectors, including the European Parliament and the UN Human Rights Council, there has been no investigation made against Duterte himself.

Under this horrible situation, there is no way for justice to move forward but for the ICC to come in and exercise its complementary jurisdiction under the Rome Statute.

(Jude Josue Sabio is a lawyer from Misamis Oriental. The allegations he made in this article form part of the complaint he filed against President Duterte before the International Criminal Court. -Editors)