"This is why the ICC must definitely come in."
This continues my summary last Saturday of Senator Leila De Lima’s arguments why the International Criminal Court (ICC) must get involved and investigate and if necessary prosecute those responsible for crimes against humanity committed during Duterte’s war against drugs.
In her presentation last week, which I had the honor of delivering, she argued that the failure of the Ombudsman to investigate and file an impeachment case against Duterte actually seals the fate of any domestic remedial measure on the accountability of President Duterte in the drug war killings.
Senator De Lima concedes that the Ombudsman may not have the power to entertain an administrative case or file with the Sandiganbayan a criminal case against the President. However, it has the sole power under the Constitution and under law to investigate him for purposes of filing an impeachment case against him before Congress.
Unfortunately, as De Lima stated in her ICC Communication, although a complaint for murder had been filed against President Duterte, his son Paolo Duterte, and several other members of the Davao Death Squad, mostly active and retired Davao policemen, such case only proceeded to the preliminary investigation stage with the President dropped from those who would be prosecuted. According to De Lima:
“If the Philippine justice system is to be capable of proceeding against even the highest official of the land, the Ombudsman should have followed its mandate, investigated Duterte, and filed an impeachment complaint against him. This is what accountability of the president under the law and the Constitution consists of, at least in theory. Instead, what the Office of the Ombudsman did was to completely relieve Duterte from any accountability before any genuine investigation can be done to ascertain the truth of the allegations, including abandoning any investigation of the complaint against Duterte even if only for purposes of filing an impeachment complaint and not a criminal complaint.”
The Senator then rightfully concluded: “The reality is that the Office of the Ombudsman has failed to act in accordance with its power, authority, and mandate to make the highest official of the land accountable for his actions. This demolishes our republican system by making the President not only immune from suit, but essentially untouchable during his term. Beyond immunity, this is basically the divine right of kings handed to Duterte by the Office of the Ombudsman.”
Another agency that failed in its mandate is the Department of Justice (DOJ). De Lima points out that as the premier law agency of the Republic, the DOJ has a broad scope of mandate and powers. Through the National Bureau of Investigation, it has the mandate, authority and immense capability to investigate complex crimes, such as those allegedly involving state actors (including law enforcement and investigative agencies like the PNP) and other powerful personalities; and, through the National Prosecution Service it wields the extremely powerful authority and discretion to investigate and prosecute criminal offenses on its own, or through cooperation with other offices like the Office of the Ombudsman.
And yet, as De Lima observes: “All that power has been squandered away and virtually rendered impotent, to the detriment of victims and their families in particular, and of the nation as a whole.” Moreover, the senator argues that the DOJ from the time of Vitaliano Aguirre, is complicit in the drug war is evident in the fact that only a handful of police officials have been prosecuted by the DOJ since 2016. According to her: “In the first place, if the then DOJ Secretary himself does not consider the victims as human beings, there is no sense in expecting prosecution from his institution.”
De Lima laments how this DOJ policy has been continued by current Justice Secretary Menardo Guevarra. According to De Lima: “This belated effort of the DOJ to conduct investigations on a tiny sample of the EJK cases is designed to mislead and falsely impress upon the UN Human Rights Council that the government is doing something to address the spate of EJKs. It is designed to prevent the UNHRC from authorizing the OHCHR to conduct an investigation on the Philippine drug war, and, ultimately, to allow those responsible for the bloody War on Drugs to continue with impunity and without any accountability. In a sense, the Justice Secretary’s dog and pony show proved to be successful, after the UNHCR backed off from an investigation, reducing it into a supposedly mutual cooperation effort between the Philippine CHR and the Duterte government.”
From all of these, De Lima concludes that “not only is the Philippine justice system incapable of holding Duterte accountable, sometimes even international bodies are too”. And that is why the ICC must definitely come in. In any case, it is clear that the requirement of complementarity has been satisfied, at least for purposes of requesting the pre-trial chamber for authorization to proceed with the Philippine investigation.
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