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Can the Philippines overcome the principle of complementarity?

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islander:

Can the Philippines overcome the principle of complementarity?

March 8, 2018
Jenny Domino

The Prosecutor of the International Criminal Court (ICC) recently announced her plans to conduct a preliminary examination on Philippine President Rodrigo Duterte’s war on drugs, which has allegedly resulted in thousands of extrajudicial executions of civilians. This process requires the Prosecutor to assess whether national proceedings exist with respect to potential cases that the Prosecutor may investigate after conducting the preliminary examination. Notably, a preliminary examination analyzes the situation as a whole and does not look into specific incidents and individuals that may be charged yet.

Duterte’s supporters argue that the Philippines has existing legislation and a functioning judicial system sufficient to satisfy complementarity. They rely on Republic Act 9851 (also titled the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity) (RA 9851), to argue that the Philippines has an accountability mechanism which should suffice to bar ICC intervention. On the other hand, critics point to the presidential immunity provision in RA 9851 to argue that the ICC is not barred.

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islander:

Both arguments are misplaced. The fact that a statutory mechanism exists is not the same as having a mechanism that actually works, which is what the principle of complementarity aims to achieve. Similarly, exploring the implications of presidential immunity presupposes that investigations that would satisfy complementarity are, in fact, already taking place. Both arguments do not answer the primordial question – are there, in fact, investigations being undertaken that would satisfy complementarity?

An absence of any investigation is enough reason for the ICC to step in. The question of genuine unwillingness will not arise if no investigations at all are being conducted in the first place. However, not all kinds of investigations are sufficient. This presupposes another question – what kind of investigation must take place, and against whom?

In its Policy Paper on Preliminary Examinations, the ICC Office of the Prosecutor requires national proceedings to be brought against the persons most responsible for the criminal acts that are being examined by it for potential cases. At present, however, no investigation, much less prosecution, has been conducted on any high-ranking official most responsible for planning and implementing Operation Tokhang, the Philippine National Police’s (PNP) official campaign through which the extrajudicial killings were allegedly committed.

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islander:

Complementarity Permutations

The protective writs petitioned before the Philippine Supreme Court cannot be interpreted as national proceedings that can bar an ICC investigation. These protective writs are remedial measures for the families of the victims killed by Operation Tokhang, not efforts to hold high-ranking officials who planned and implemented Operation Tokhang criminally liable. The pending complaints filed by the drug war victims’ family members against police officers with the Office of the Ombudsman do not satisfy complementarity for the same reasons. The defendants here are low-ranking officers of the Manila Police District, not senior officials of the PNP. The investigative mandate of the Commission on Human Rights (CHR) may also not suffice. At best, the CHR can only recommend the filing of charges either to the Department of Justice (DOJ) or the Ombudsman; it has no prosecutorial power itself. Prosecutors are free to disregard CHR recommendations and make separate findings of their own.

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islander:

Impeachment has been suggested to bar ICC intervention. Apart from the political impossibility of this happening at the moment, there are good reasons to believe that the process of impeachment is not enough to satisfy complementarity. The present 1987 Philippine Constitution allows for the removal of the President for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Although it may be argued that the drug-related extrajudicial killings constitute a violation of numerous rights provisions of the Constitution that could fall under “culpable violation of the Constitution”, impeachment only carries a political consequence and no criminal liability. This may not qualify as the kind of accountability envisioned in the Rome Statute.

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islander:

Perhaps Colombia’s story can guide us. The ICC Prosecutor has made it clear that removing the possibility of criminal prosecution for the mass atrocities committed during the armed conflict between the Colombian government and the Revolutionary Armed Forces of Colombia could lead her to resume the preliminary examination of the Colombian situation. Criminal accountability was non-negotiable. This influenced both parties to the peace agreement to exclude amnesties and pardons for crimes against humanity and war crimes. Against this backdrop, the consequences of impeachment – mere removal from office – may not be enough to satisfy complementarity for the Philippines.

Although the ICC has yet to define how alternative mechanisms of accountability fit into the complementarity framework, the view that impeachment is insufficient to bar an ICC investigation is more consistent with the complementarity principle. Since the ICC seeks to fill the gap left open by states that do not genuinely investigate and criminally prosecute persons most responsible for mass atrocities, it follows that to satisfy complementarity, the state must allow for a mechanism that pushes for the same prosecutorial agenda.

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