The International Criminal Court (ICC) was established pursuant to the Rome Statute, which is technically a global treaty. Acceding to the Rome Statute represented our commitment to the international community. According to the ICC website, the ICC “aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.”
But the Philippines withdrew from the Rome Statute in 2019. It was a decision unilaterally made by former President Rodrigo R. Duterte. According to a report from the Philippine News Agency, the former Chief Executive “said he had ordered the revocation of the Rome Statute because he has never obtained a copy of it.” And that he was “clueless about the content of the Rome Statute.”
But talks of the ICC assuming jurisdiction over the killings perpetuated in the name of the Duterte War on Drugs are heating up. President Bongbong Marcos has consistently maintained that his administration will never allow the ICC to take over this matter. Even though relatives of the victims have a pending complaint with the ICC.
His administration instead will just support the plan of the Philippine National Police (PNP) to reopen the investigation of several cold cases related to the Duterte drug war. This criminal inquiry can be tricky as many of the suspected offenders will come from the ranks of the PNP. And the value of the President’s arms-length approach remains to be seen.
Meanwhile, the Department of Justice (DOJ) has oddly decided to defer to the House of Representatives’ Quad-comm drug war probe. Perplexingly rationalizing that conducting a parallel investigation into extrajudicial killings (EJKs) during the Duterte administration would be a waste of state resources. This move can be seen as the DOJ simply subcontracting lawmakers to do the preliminary investigation work for them.
Understandably, just letting the ICC assume jurisdiction over the drug war EJKs is not an easy decision to make for President Marcos because it would be an admission of weakness. It would mean relinquishing a presidential responsibility to an international tribunal. In a way, he will be breaking his constitutional oath to execute Philippine laws.
Recall that in the case of Pangilinan vs. Cayetano, the Supreme Court explained that: “The International Criminal Court’s jurisdiction is “complementary to national criminal jurisdictions.” Complementarity means that the International Criminal Court may only exercise jurisdiction if domestic courts were “unwilling or unable” to prosecute.”
Hence, if President Marcos decides to yield to the ICC, then this is tantamount to saying that his administration is “unwilling or unable” to investigate and prosecute the crimes perpetuated in the name of the War on Drugs of President Duterte. This effectively says to the international community that we have a broken legal system.
However, doing nothing, or just the bare minimum, is also untenable because President Marcos also vowed under oath to secure justice to every man. Undeniably, there is consensus amongst Filipinos that the casualties of the War on Drugs deserve justice. The President must do more than just watching lawmakers do the job for him.
One possible option for President Marcos is to convene an ad-hoc body within the DOJ to investigate and prosecute violations of Republic Act No. 9851 (RA No. 9851) or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.
Pertinently, as per the Pangilinan vs. Cayetano decision, RA No. 9851 “echoes the substantive provisions of the Rome Statute”. So, the mandate of this proposed DOJ ad-hoc body would already cover matters that are already under ICC investigation. With this move, President Marcos would thus satisfy society’s demand for justice for the drug war victims.
However, the mandate of the DOJ ad-hoc body must specifically focus on crimes committed under RA No. 9851. It cannot explicitly target particular personalities involved in certain criminal activities as this would likely meet the same fate of President Noynoy Aquino’s Truth Commission of 2010. (See Biraogo vs. The Philippine Truth Commission of 2010)
More importantly, this proposed DOJ ad-hoc body will demonstrate to Filipinos that this is not a political witch hunt. That it is not about revenge against a political adversary. That this is just about giving justice to Filipinos who have been victims of crimes against humanity in their own country.
In sum, there is no longer any doubt that heinous crimes were committed in the name of the Duterte War on Drugs. It is the responsibility of our government to investigate these crimes and prosecute the perpetuators. Giving justice to the victims of the Duterte drug war is a sworn duty of President Marcos. Not acting on the public’s clamor for justice is a betrayal of his oath.
(MindaViews is the opinion section of MindaNews. Michael Henry Yusingco, LL.M is a law lecturer, policy analyst and constitutionalist.)