Duterte faces new ICC complaint over EJKs

Philippine Supreme Court holds oral arguments on ICC withdrawal

Another complaint against Philippine President Rodrigo Duterte has been filed with the International Criminal Court (ICC), this time by activists and the relatives of people killed as a result of the country’s war on drugs.

The 50-page complaint sent to an ICC prosecutor on Tuesday, August 28 is the second to be filed with the Hague-based court. Like the first, it calls for Duterte’s indictment over the alleged extrajudicial killings carried out since becoming president.

“It is our hope that with the court taking jurisdiction of herein complaint, it may force President Duterte to re-examine, if not abandon, his distorted notion of mass murder to solve the country’s drug and crime problem. The intervention of the ICC will save thousands more from slaughter,” the complainants said.

It added that, “the extrajudicial killings, mass arrests, and the inhumane acts committed by and under President Duterte, whether 4,410 killed as claimed by the Philippine government or 23,000 as claimed by human rights and media groups, the mass murder and rights violation are so grievous and so heinous that is so sufficient gravity to justify further action of the Court.”

Filing the complaint were relatives of eight victims, represented by the National Union of People’s Lawyers, and rights group Rise Up for Life and for Rights.

The first complaint filed by Filipino lawyer Jude Sabio in April 2017 is currently being examined by ICC Prosecutor Fatou Bensouda.  Before the filing, Bensouda said she was “deeply concerned” about the alleged killings and “the fact that public statements of high officials of the Republic of the Philippines seem to condone such killings.”

To Bensouda and international prosecutors, Duterte sent a message during a press conference saying that they “will never have jurisdiction” over him “in a million years.”  The Philippines, he said, “was never a member of the ICC.”

“You do not have jurisdiction even to conduct a preliminary investigation,” said Duterte, taking aim at Bensouda.

“So, you Ms. Fatou, don’t come here, because I will bar you.  You cannot exercise any proceedings here without basis. That is illegal and I will arrest you,” said Duterte.

The Philippines joined the court in 2011 under former president Benigno Aquino, becoming a signatory to the Rome Statute, the treaty that established the ICC.  By joining, the Philippines gave court prosecutors jurisdiction over alleged crimes done during its membership.

In response to the latest complaint, Malacañang on Tuesday downplayed its potential impact, saying that the filing was not yet a complaint since the ICC had not yet acted on it.

“That’s not a complaint.  That’s a communication because it’s still to be acted upon by the ICC,” said Presidential Spokesperson Harry Roque.  “Even the Pope has a communication filed against him. So that doesn’t mean anything.”

Roque is also the only Philippine lawyer authorized to practice in the ICC.

“Again, my fearless prediction is it will not prosper dahil nga po doon sa konsepto ng complementarity (because of the concept of complementarity),” said Roque, acknowledging that the ICC is a court of last resort meant to take on cases from nations unable or unwilling to carry out investigations and prosecute perpetrators.

ICC withdrawal

Roque also described the new complaint as being “doomed” because the Philippines earlier this year announced its withdrawal from the ICC.

Duterte unilaterally withdrew the Philippines from the tribunal in March, a move he said was “effective immediately.”  But the treaty states that withdrawals from the court become effective a year after a country gives notice to the United Nations secretary-general.

Also on Tuesday, Philippine lawmakers opposing the withdrawal joined oral arguments at the Supreme Court, arguing that the withdrawal required a two-third vote in the Senate.

“A treaty already transformed into Philippine law cannot be undone by a one-sided act of the president.  Only the Senate can undo its own act,” Romel Bagares, a lawyer for a coalition of campaigners, told the court as quoted by Agence France-Presse.

Associate Justice Marvic Leonen suggested that it was better the Senate pass a resolution on how to legally withdraw, rather than have the Supreme Court make the decision.

“This Court may not want to become the judicial dictator of this country, overextending this power into realms which might be political in nature rather than legal,” said Leonen, as quoted by Rappler.

Similarly, former Chief Justice Reynato Puno said, “The Court should strive to work out a constitutional equilibrium where each branch of government cannot dominate each other, an equilibrium where each branch in the exercise of its distinct power should be left alone yet bereft of a license to abuse.”

Oral arguments will resume next Tuesday, September 4.

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