ICC and RTC Complementarity and “Overlap” in Prosecuting the Duterte Drug War’s Crime Against Humanity

By Soliman M. Santos, Jr.

Naga City, 22 November 2024

The principle of complementarity in the Rome Statute (RS) of the International Criminal Court (ICC) provides “that the ICC… shall be complementary to national criminal jurisdiction” (RS, Preamble & Art. 1). It does NOT mean that while the Office of the Prosecutor (OTP) of the ICC is investigating or even prosecuting the Duterte drug war’s crime against humanity of murder (RS, Sec. 7.1.a), the Philippine government (which has already withdrawn from the RS effective March 17, 2019) particularly its Department of Justice (DOJ) should not file charges regarding the Duterte drug war extra-judicial killings (EJKs) that “overlap” with that in the ICC, specifically a crime against humanity of willful killing under Republic Act No. 9851 (Sec. 6.a).

For the DOJ to refrain from filing this charge, despite its being warranted by probable cause based on the evidence before it, would in fact be contrary to the said principle of complementarity. Under this principle, it is the national criminal jurisdiction that has primacy “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” (RS, Art. 17.1.a) of a crime against humanity (CAH). In fact, if ever the OTP defers to a State’s investigation of a CAH, this deferral shall be open to review by the OTP “six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability to genuinely carry out the investigation” (RS, Art. 18.3) In other words, there is this safeguard against a State’s “unwillingness or inability to genuinely carry out the investigation” even if the OTP defers to a State’s investigation of a CAH.

What is crucial is the State’s willingness and ability genuinely to carry out the investigation or prosecution. In the Philippine case, particularly with the DOJ investigation and prosecution before an appropriate Regional Trial Court (RTC), let the eating be the proof of the pudding, as they say, despite the investigatory, prosecutorial and judicial track records, good and bad, come the cases of prominent, rich and powerful suspects, respondents and accused. If domestic investigation and prosecution proves to be ineffectual or even sham, there is still the safeguard option of reverting to any deferred or suspended OTP or ICC proceeding.

As it is, under the Philippine Constitution and more so under RA 9851, if not also the RS (when the Philippines was a State-Party), the Philippines has the international legal and domestic constitutional obligation and “duty… to exercise its criminal jurisdiction over those responsible for international crimes” (RS, Preamble; RA 9851, Sec. 2.e) like a CAH. It cannot shirk on this obligation and duty by passing the buck to the ICC because of an alleged “overlap.” This is a test, as well as an opportunity, not only to render justice for the Duterte drug war victims, but also to strengthen and reform the Philippine criminal justice system “to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes” (RS, Preamble; RA 9851, Sec. 2.e).

After all, the Duterte drug war has already been called no less than “the crime of the century in our country.” It is not simply the multiple commission of murders or willful killings but something no less than a CAH, considered as among “the most serious crimes of concern to the international community as a whole [which] must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level” (RS, Preamble; RA 9851, Sec. 2.e).

In speaking about the complementarity or “overlap” between the ICC and the RTC when it comes to prosecuting the Duterte drug war’s CAH, all concerned should take NOTE that, at this point where the Philippines has withdrawn from the RS, the ICC and the RTC would have two different temporal (time) jurisdictions. The ICC’s temporal jurisdiction over the Duterte drug war CAH is limited to the period November 1, 2011 to March 16, 2019. The RTC’s temporal jurisdiction goes beyond that up to the end of President Duterte’s term on noon of June 30, 2022, a good more than three years more of the bloody drug war. In this sense, the RTC would be able to cover those last more than three years which the ICC would not be able to, so there is NO “overlap” at least for those years.

But also, even from the point of view of the “best option” for the Duterte drug war victims families’ quest for justice, it may be best not to put all of one’s eggs in one ICC basket. What if the ICC proceedings are, for whatever reason (e.g. issues of admissibility or jurisdiction), subsequently dismissed with finality? This should not be left to chance. The best policy for victim justice quest purposes may be to keep all options open, based on “significant change of circumstances” or the situation in the ICC and in the Philippines. And to seize the moment, as it presents itself, lest the opportunity be missed and rued with later regret.

Let it not also be said that, in case of unwillingness of the Duterte drug war victims’ families and their assisting human rights (HR) lawyers groups before the ICC to collaborate or work together with the DOJ in the domestic investigation and prosecution of the Duterte drug war CAH (even if this unwillingness is understandable because the latter domestic proceedings may cause a suspension of the ICC proceedings in which they have heavily invested and placed their hopes for justice on), such unwillingness to collaborate or work together with the DOJ starting with cases build-up might be considered contributory to (even if unintended) the Philippine government’s eventual “unwillingness or inability genuinely to carry out the investigation or prosecution.” Will they just “sit back and watch if the Marcos administration will follow through by walking the talk”? Will they withhold their considerable intellectual resources, legal expertise and passion for HR from reinforcing the domestic investigation and prosecution?

An esteemed HR lawyer and his group assisting the Duterte drug war victims’ families has made a number of relevant propositions that deserve some critical comment. In what may be considered another flawed application of complementarity, he proposes: “What could work is to allow the ICC to prosecute the highest officials who ‘bear the greatest responsibility’ for CAH. From the House of Representatives’ quad committee hearings so far, these are Duterte, Ronald ‘Bato’ dela Rosa, and Christopher ‘Bong’ Go. Then our government can use RA 9851 to prosecute the mid-level CAH perpetrators such as Police Col. Lito Patay who is accused of about 100 killings as head of Quezon City Police Station 6…. Prosecuting all those responsible for the crime of the century in our country will strain our governmental institutions and personnel beyond their limits. Let the ICC prosecute those who bear the greatest responsibility, and leave our local courts to exact justice against the mid-level perpetrators.” Subsequently, he further proposes government prosecution of Duterte et al. for CAH and other crimes like murder under the Revised Penal Code (RPC) only for the period before Nov. 1, 2011 and after March 16, 2019 (when the ICC has no temporal jurisdiction) but leave the prosecution for CAH to the ICC for the period when it had jurisdiction from Nov. 1, 2011 to March 16, 2019.

With due respect to our good compañero, his proposition will be more of a strain for government prosecution of the Duterte drug war’s crimes, especially the key CAH. It will make for a disjointed or segmented approach rather than a more effective wholistic approach that is commensurate with the nature of a CAH (as in “widespread or systematic attack” and “pursuant to or in furtherance of a State or organizational policy”). The Duterte period as Davao City Mayor and as Philippine President must be reckoned as a whole. The top or mastermind level and the mid-level perpetrators of CAH must be taken in the accountability contexts of both command responsibility and conspiracy among principals by inducement, by direct participation and by indispensable cooperation in the whole Duterte drug war.

The proposed segmented prosecution of “the highest officials who ‘bear the greatest responsibility’ for CAH” before the ICC and of “the mid-level CAH perpetrators” before our local courts, RTCs, will fragment a more coherent presentation of evidence against both levels of CAH perpetrators. It may also preclude the possible availment of mid-level perpetrators as state witnesses to bolster the more important charge/ case against the top-level perpetrators or masterminds. It would go against our criminal justice system’s mandate to prosecute “against all persons who appear to be responsible for the offense involved” and to exclude as state witnesses those that “appear to be the most guilty” (Revised Rules of Criminal Procedure, Rule 110, Sec. 2, and Rule 119, Sec. 17.d)  

Finally, our said pañero [and his law associate] argues: “Why should we choose the playing field eagerly sought by the Duterte?... [given how politics tend to get in the way of an honest-to-goodness prosecution]… If the political winds change... when new political mandarins who will next sit in Malacañang become allies of the Dutertes, any domestic prosecution of CAH will bend in the altered direction of political alliances...” Well, in rejoinder let me say, it is also OUR (Philippine) playing field. We might as well make good or the best we can with it, at least try. Like we did HR lawyering during the Marcos martial law dictatorship. Kung hindi ngayon, kailan pa?  Let the uncertain future take care of itself with what we can do in the certain present.           

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SOLIMAN M. SANTOS, JR. is a retired Judge of the RTC of Naga City, Camarines Sur. He is a long-time human rights and international humanitarian lawyer;  legislative consultant and legal scholar;  and author of a number of books, including a trilogy on his court work and practice: Justice of the Peace (2015), Drug Cases (2022), and Judicial Activist (2023), all published by the lawbook publisher Central Books, Inc., Quezon City.