RAPPLER IQ

EXPLAINER: Yes, Int'l

Criminal Court can
prosecute Duterte for
killing spree
The Philippines effectively domesticated the Rome Statute of the International
Criminal Court when it enacted Republic Act 9851 – the commander in chief can be
held liable for crimes against humanity

Perfecto Caparas
Published 9:45 PM, March 04, 2017
Updated 3:50 PM, February 08, 2018

DRUG WAR'S TOLL. Three suspected drugs personalities were apprenhended by cops while 3
others died after a shootout in Maypajo, Caloocan City on September 30, 2016. Photo by LeAnne
Jazul/Rappler

Two international human rights groups recently released findings that the
police are behind the spate of extrajudicial drug-related killings in the
Philippines.
They bring us back to the time in 2016 when President Rodrigo Duterte scoffed at
the warning aired by International Criminal Court (ICC) chief prosecutor Fetou
Bensouda that the ICC would be closely monitoring incitements for mass murder. As
of end-January 2017, the fatalities have reached more than 7,000 (and still counting)
in the country.

ICC Prosecutor Bensouda warned: “Let me be clear: any person in the Philippines
who incites or engages in acts of mass violence including by ordering, requesting,
encouraging or contributing, in any other manner, to the commission of crimes within
the jurisdiction of the ICC is potentially liable to prosecution before the Court.”
(READ: Things to know about Duterte's pet peeve ICC)
What Duterte fails to appreciate is that at this day and age the doctrine of command
responsibility has been institutionalized and operationalized both in the international
and domestic criminal law regimes. He can be investigated, prosecuted, arrested,
and tried for crimes against humanity. And the doctrine of command responsibility
will indispensably figure prominently in those proceedings.

Contrary to his pronouncements, Duterte as head of state lacks the mantle of

immunity from prosecution either by Philippine authorities (arguably) or the ICC for
gravest breaches of international human rights law. (READ: Duterte threatens PH
withdrawal from ICC)

Two criminal law frameworks apply to the ongoing mass murders in the Philippines:
one domestic, another international.

The Philippine Act on Crimes Against International Humanitarian Law, Genocide,

and Other Crimes Against Humanity (Republic Act 9851) penalizes those acts as
“willful killing” under Section 6(a). Then President Arroyo signed RA 9851 into law on
December 11, 2009. It is also known as An Act Defining and Penalizing Crimes
against International Humanitarian Law, Genocide and Other Crimes against
Humanity, Organizing Jurisdiction, Designating Special Courts, and For Related
Purposes.

RA 9851 characterizes as “other crimes against humanity” the unabated mass

murders “when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack.”

Command responsibility
DRUG WAR'S TOLL. Three suspected drug personalities are apprehended by cops while 3 others die
after a shootout in Maypajo, Caloocan City on September 30, 2016. Photo by LeAnne Jazul/Rappler

As commander-in-chief, President Duterte can be held liable under Section 10

(Responsibility of Superiors) of RA 9851. It provides that “a superior shall be
criminally responsible as a principal for such crimes committed by subordinates
under his/her effective command and control, or effective authority and control as the
case may be, as a result of his/her failure to properly exercise control over such
subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have
known that the subordinates were committing or about to commit such crimes;

(b) That superior failed to take all necessary and reasonable measures within his/her
power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.”

According to the Philippine Supreme Court in the Boac v. Cadapan en banc decision
dated May 31, 2011, RA 9851 enunciated “command responsibility as a form of
criminal complicity in crimes against international humanitarian law, genocide and
other crimes.”

In this case, the Supreme Court underscored, “It bears stressing that command
responsibility is properly a form of criminal complicity, and thus a substantive rule
that points to criminal or administrative liability.”
The law imposes the penalty of reclusion perpetua (technically maximum
imprisonment of 40 years) and P500,000 to P1 million fine upon those found guilty of
the crime of other crimes against humanity of willful killing, considering “the extreme
gravity of the crime, especially where the commission of any of the crimes…results
in death…and considering the individual circumstances of the accused.”

Rome Statute of the ICC

No one has criticized President Duterte’s proven track record and determination to
fight narco-traffickers per se. The President, in fact, enjoys everyone’s support in
ensuring that our country will not fall prey to narco-politicians and turn our nation into
a narco-state. The President’s strong political will to combat narco-politicos and
narco-generals is truly laudable and deserving of our wholehearted support.

The apparent method, however, is inherently reprehensible, “shocking to humanity’s

conscience,” and offends our collective and most fundamental sense of decency and
humanity. These characterize the very crimes codified in the Rome Statute of the
International Criminal Court, namely, war crimes, genocide, crimes against humanity,
and crime of aggression.

We effectively domesticated this international treaty by enacting RA 9851 ahead of

our country’s ratification of the Rome Statute of the ICC.

At the international level, the continuing mass murders constitute a crime against
humanity of murder under the Rome Statute of the International Criminal Court.

Applicability to Philippines

Adopted by the Rome Conference on July 7, 1998, the Rome Statute of the
International Criminal Court established the ICC as the world’s first permanent
criminal court. It entered into force on July 1, 2002, or 60 days after its ratification by
the 60th state party. Ten states simultaneously deposited their instruments of
ratification with the United Nations Secretary General, who acts as treaty depositary,
raising to 66 the total number of state parties, triggering the Rome Statute to enter
into force.

We are subject to the ICC’s jurisdiction. We were, in fact, one of the pioneers behind
the creation of this first-ever global criminal court, being a state party to the Final Act
of The United Nations Diplomatic Conference of Plenipotentiaries on The
Establishment of An International Criminal Court held in Rome on July 17, 1998.

Our country – represented by then Deputy Permanent Representative to the United

Nations in New York Enrique Manalo – signed the Rome Statute of the ICC on
December 28, 2000. The Philippines ratified the Rome Statute on August 30, 2011.
We thus became the 117th state party to this treaty, the second ASEAN country to do
so.
ICC’s legal framework

Together, 7 documents provide the legal framework of the ICC. These include the
Rome Statute of the International Criminal Court, the Rules of Procedure and
Evidence, the Elements of Crimes, the Regulations of the Court, the Regulations of
the Registry, the Regulations of the Office of the Prosecutor, and the Code of
Professional Conduct for Counsel.

History

In March 2011, ICC President Judge Sang Hyun Song visited the country. Then
President Benigno Aquino III signed the Instrument of Ratification on May 6, 2011.
Casting their vote, members of the Philippine Senate concurred with then President
Aquino on August 23, 2011, in ratifying the Rome Statute.

The Permanent Mission of the Philippines to the United Nations deposited our
Instrument of Ratification with the UN Secretary General on August 30, 2011. By
virtue of Article 126 (Entry into force), the Rome Statute’s date of effectivity in the
Philippines starts on November 1, 2011.

Significance and rationale

Then Philippine Permanent Representative Ambassador Libran Cabactulan

articulated the significance of the Philippine ratification of the statute, stating: “The
Philippines, a democracy that champions international law and the rule of law, views
being party to the Rome Statute of the ICC as a vital part of the ongoing global
campaign to end impunity and violence against individuals and to further strengthen
a rules-based international system, specifically in relation to international human
rights law and humanitarian law.”

Cabactulan added: “It is a clear signal of the importance the Philippines [attaches] to
this treaty.... The ICC also serves as a deterrent against genocide and other heinous
crimes and ensures that all perpetrators of these serious crimes of concern are held
accountable.”

Historically, civil society organizations in the Philippines had also lobbied for its
ratification.

ICC’s jurisdiction over the Philippines

The statute became effective and applicable to the Philippines 60 days after the
deposit of our Instrument of Ratification, or on November 1, 2011, as provided for
under Article 126. The crime against humanity of murder allegedly perpetrated by
state actors therefore falls under the jurisdiction and is cognizable by the
International Criminal Court, inasmuch as the continuing mass murders occurred
after November 1, 2011.
Principle of complementarity

This principle of jurisdiction, however, interplays with the principle of

complementarity. It means national jurisdictions, just like the Philippines, have
primacy over the ICC, as far as investigating, prosecuting and trying cases – like
the crime against humanity of murder under the Rome Statute of the ICC – are
concerned. Hence, in the context of the open-season murder of drug suspects, the
Philippines, and not the ICC, is the one that theoretically has primacy to carry out
investigations, prosecutions, and trial.

But such state-initiated investigations, prosecutions, and trials should not be a mere
facade, but rather an impartial, honest, and good faith investigation, prosecution, and
trial. Otherwise, the ICC can step in, pursuant to the principle of complementarity, if
the Philippines is shown to be unwilling or unable to investigate, prosecute, and try in
good faith.

Philippine criminal law framework

We have an adequate legal system to carry out domestically this obligation to

prosecute, try, and punish perpetrators under the Rome Statute of the International
Criminal Court, given our own RA 9851 – Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity.

We have duly-constituted and fully functioning criminal courts and a hierarchy of

judicial review. Section 18 (Philippine Court, Prosecutors and Investigators) of RA
9851 provides regional trial courts with original and exclusive jurisdiction over crimes
punishable under RA 9851. Our Supreme Court also has the power to “designate
special courts to try” such cases, according to Section 18.

Section 18 further provides that “the Commission on Human Rights, the Department
of Justice, the Philippine National Police or other concerned law enforcement
agencies shall designate prosecutors or investigators.”

Will our own executive department be willing and sincere in carrying out an honest,
thorough, and good faith investigation, prosecution, and trial of the killers, particularly
the mastermind, the planner, and the direct perpetrator?

There are at least 3 emerging categories of killers: police officers; motorcycle-riding

vigilantes; and salvagers. (READ: PH police 'falsifying' evidence in drugs war –
Human Rights Watch)

It seems that only the Commission on Human Rights can carry out an impartial and
independent investigation into the mass murders.

International Criminal Court intervention

It’s this factual element that can potentially bring about in the future an active and
direct ICC involvement in investigating the spate of mass atrocities in the country. An
ICC prosecutor can conduct a preliminary examination to see if adequate information
exists to warrant the opening of an investigation into crimes within the ICC's
jurisdiction.

ICC prosecutor Fatou Bensouda can initiate such a preliminary investigation motu
proprio or on her own accord “on the basis of information on crimes within the
jurisdiction of the Court,” per Article 15(1) of the Rome Statute, as she herself has
warned.

The ICC merely serves to complement the Philippines’ primary jurisdiction over the
gravest crimes punishable under the Rome Statute – the crime against humanity of
murder in the case of the Philippines. The ICC, however, will likely step in, if
Philippine authorities fail to act on the killings, as crimes against humanity undermine
the rule of international human rights law.

Failure or refusal on the part of the ICC to act will constitute a betrayal of its mandate
to dismantle the wall of impunity by holding notorious human rights violators
accountable before the bar of international justice. – Rappler.com

The author serves as the Associate Director of Graduate Programs of Indiana

University Robert H. McKinney School of Law (stated only for purposes of showing
affiliation). He holds a Master of Laws degree in Human Rights (University of Hong
Kong; Honors) and a Master of Laws in American Law for Foreign Lawyers (Indiana
University Robert H. McKinney School of Law). He worked as a journalist of Ang
Pahayagang Malaya, The Manila Times, The Philippine Post, Pinoy Gazette,
UCANews and ISYU Newsmagazine. He is a lifetime member of the Integrated Bar
of the Philippines. The views expressed here exclusively belong to the author.