DOJ chief claims ICC can’t probe, prosecute Duterte

MANILA, Philippines — The International Criminal Court (ICC) cannot investigate and prosecute President Duterte over the killings and alleged human rights violations under his administration’s war on drugs, Justice Secretary Menardo Guevarra said yesterday.

He stressed that the Chief Executive does not even need to formally respond to the charges in the complaints filed against him before the ICC following the country’s withdrawal from the international tribunal based in The Hague in the Netherlands.

Guevarra explained that apart from the government’s withdrawal of its membership, the ICC cannot take jurisdiction over the cases because the justice system in the country is working.

“As far as our country is concerned, the ICC cannot exercise its jurisdiction to investigate, much less to prosecute, because our own investigative agencies and judicial bodies are functioning effectively, albeit slowly,” Guevarra told The STAR.

“Also, casualties in the anti-drug campaign are not comparable to genocide or any crime against humanity, by any stretch of imagination or twisting of settled international law doctrine,” he pointed out.

Under its charter, the ICC may exercise jurisdiction to prosecute individuals for international crimes of genocide, war crimes and crimes against humanity only under certain conditions –national courts are unwilling or unable to prosecute criminals or upon referral by the United Nations Security Council or individual states. 

Three policemen were convicted by the Caloocan City regional trial court in November last year and found guilty of murder for the August 2017 slay of Kian delos Santos, one of the controversial cases under the administration’s narcotics war.

Police officers Arnel Oares, Jeremias Pereda and Jerwin Cruz were sentenced to imprisonment for 20 to 40 years.

Guevarra said the conviction rebutted the insinuation of impunity by critics of the war on illegal drugs, which was a basis for filing of complaints against Duterte before the ICC.

“This conviction debunks the myth that there is a culture of impunity in the government’s war against drugs... We will continue to dispense justice and let the hammer fall where it should fall,” the Department of Justice (DOJ) chief vowed.

Guevarra believed that the President may ignore the charges before the ICC or any order from the tribunal to answer the complaints.

“Answering or participating in any way will be inconsistent with our previous act of withdrawal from the ICC,” he explained.

The DOJ chief issued the statement after a lawyer for the complainants claimed that the ICC would possibly start an investigation on the charges this week or before March 17 when the country’s withdrawal from the ICC takes effect.

Lawyer Jude Sabio, counsel of self-confessed hitmen Edgar Matobato and Arturo Lascañas who claimed that they killed persons in Davao City upon the orders of then mayor Rodrigo Duterte, argued that the ICC could exercise jurisdiction on the complaints just as it did in the case of Burundi where it decided to open an investigation two days before the country’s withdrawal took effect.

In April 2017, Sabio submitted to the ICC a formal communication on the drug war killings, followed by supplemental information from opposition lawmakers Sen. Antonio Trillanes IV and Magdalo party-list Rep. Gary Alejano. They alleged that over a thousand were killed by the so-called Davao death squad, while thousands more were killed in the war on drugs since Duterte became president.

The government withdrew its membership from the ICC in March 2018, a month after the international court announced a preliminary examination on alleged extrajudicial killings in the country that would determine whether there is cause to go on a full-blown investigation.

Meanwhile, Malacañang maintained that the ICC would violate its own rules if it insists on probing the deaths tied to the country’s war on illegal drugs.

“We said from the very beginning we were not under its jurisdiction. That letter (withdrawing the Philippines from ICC) was only to inform them as a matter of courtesy that excuse us, we have not been under your jurisdiction from the very start,” presidential spokesman Salvador Panelo said at a press briefing. 

Panelo also claimed the ICC could not proceed with a probe without a preliminary investigation. 

“We’ve been pointing out that the ICC itself has been violating its own provisions... They’re saying we can proceed with the investigation even if there’s withdrawal. But under the law, it says that they can proceed only if there is a preliminary investigation prior to the withdrawal,” he said. 

“But there was no preliminary investigation, there was only preliminary examination. So if they do that, with more reason they cannot do that because it is violating its own laws,” he added. – With Alexis Romero