LAST week Solicitor General Menardo Guevarra blasted the International Criminal Court (ICC) for not following its own rules.
This was after the appeals chamber of the ICC refused to suspend the investigation being conducted by the ICC prosecutor in the meantime that the Philippines was appealing the decision of the pre-trial chamber authorizing the said investigation.
“Only when there is no genuine investigation and prosecution being conducted by the domestic institutions may you come in but you are coming in despite the fact that we are doing what needs to be done in a genuine manner,” Guevarra said.
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The ICC prosecutor is investigating alleged “crimes against humanity” committed during the war on drugs implemented under the regime of former President Rodrigo Duterte.
Is the Philippines doing what needs to be done? Enough for the ICC to desist from arresting and trying those thought to be the brains and implementors of the police program that claimed at least six thousand civilian lives?
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The Philippines has a law punishing “crimes against humanity.”
Republic Act No. 9851, otherwise known as the Philippine Act on crimes against international humanitarian law, genocide, and other crimes against humanity, was signed into law in December 2009. It antedated the Senate’s concurrence to the Rome Statute which created the ICC.
Acts of willful killing are listed as crimes against humanity under RA 9851.
This law also provides that superiors are liable as principals for crimes committed by subordinates who are under their effective command and control. Ranking officers may not evade liability because command responsibility is recognized as a form of criminal complicity.
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The Maguindanao massacre, for example, had it been committed after the passage of RA 9851, could have been prosecuted as crimes against humanity, not just the ordinary offense of multiple murder under the revised penal code.
Like the Rome Statute, RA 9851 describes crimes against humanity as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
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The Philippine government likes to cite a handful of successful prosecutions to buttress its claim that it is doing enough to stave off an ICC investigation.
The conviction of a couple of police officers in the killing of Kian delos Santos is presented as an example that “the justice system is working.”
That case, however, was a prosecution for murder, not for crimes against humanity under RA 9851.
Domestically, where are we in the investigation and prosecution of those responsible for the widespread attack directed against suspected drug peddlers and addicts?
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The Philippine government may present all the individual prosecutions for homicide or murder related to the war on drugs, but these are not the investigations or prosecutions that will result in indictments under RA 9851.
The low-ranking policemen who do the actual killing may be guilty of murder for those individual cases. But such cases, and other cases where these policemen are not actually involved, taken as a whole, may constitute the special international offense of crimes against humanity penalized under RA 9851.
Yet these are not being investigated, much less prosecuted, in the domestic sphere. There is domestic legislation for an international offense but there is no investigation being conducted that might lead to indictments under that law.
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No one is disputing the fact that courts of law exit in the Philippines.
However, the Philippines has a passive judicial system that can act only on actual cases brought to it for trial and resolution.
The investigation of crimes is the function of the executive department. There is no indication that an investigation of the war on drugs in the context of RA 9851 is being undertaken./PN
