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ICC can investigate crimes in a working democracy

The International Criminal Court can investigate former President Rodrigo Dutere’s drug war, contrary to Sen. Christopher “Bong” Go’s misleading claim that it can’t as the Philippines has a working democracy, isn’t lawless and isn’t ruled by a dictator.

Rejecting the international court’s intervention, Go told journalists on Nov. 30 ICC’s investigations had been mostly conducted on lawless countries and when dictators rule which he said is not the case with the Philippines as democracy remains alive. He said:

Meron tayong demokrasya, ‘yung atin dito sa Pilipinas, democratically elected president, ibig sabihin, umiiral po ang demokrasya dito sa atin. Kadalasan po yung mga iniimbestigahan ng ICC yun po yung mga lawless countries o may mga krimen na nangyayari, may mga dictator, e wala naman pong diktador dito sa ating bansa. (We have democracy in the Philippines, the president is democratically elected, meaning, democracy prevails here. The ICC mostly investigates countries that are lawless or those with crimes and dictators, but there is no dictator in the country). (00:13-00:42)

The Rome Statute, the treaty that established the ICC, makes no mention of democracy, lawlessness and dictatorship as requirements to suspend or warrant an investigation.

Article 5 of the statute outlines four grave crimes, including crimes against humanity, where ICC has authority to prosecute.

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.

Duterte’s bloody war on drugs is being investigated for possible crimes against humanity as it involves unlawful acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” according to ICC. Go has been Duterte’s personal aide since 1998.

The ICC decided to proceed with the investigation despite a protest lodged by the Philippine government, saying:

(I)t (the Philippine government) fails to demonstrate that the Department of Justice Inter-Agency Review Panel, the Administrative Order No. 35 Committee, Philippine National Police - Internal Affairs Service disciplinary proceedings, or writ of amparo proceedings constitute tangible, concrete, and progressive investigative steps as required to show inadmissibility.

Article 17 of the Rome Statute authorizes the ICC to probe grave crimes that a member country is not willing or not able to sufficiently investigate and prosecute. Part of Article 17 reads:

(T)he Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.

The ICC investigation will cover drug-related killings committed between Nov. 1, 2011 and March 16, 2019 when the country was still bound by ICC’s jurisdiction. The Philippines withdrew its membership in March 2018.

Three resolutions in the House and one in the Senate urge Malacañang to cooperate with the ICC investigation.

President Ferdinand Marcos Jr. said on Nov. 24 the proposal to rejoin ICC is “under study.” This comes amid speculations that a rift between the Marcos and Duterte factions has been brewing. (ER)


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