Senator De Lima’s view on complementarity

“I was greatly impressed by her argument.”

To complete my series of articles on the request by the former International Criminal Court Prosecutor Fatou Bensouda to investigate crimes against humanity committed in the Philippines/war against drugs, I borrow from Senator Leila De Lima’s reflections on complementarity and how this condition has been fulfilled in this case. Using this paper, I represented Senator De Lima in a webinar last week. I was greatly impressed by her argument.

De Lima starts with a well-accepted observation that Ideally, extrajudicial killings should be resolved domestically, applying national constitutional and legal remedies of criminal investigation and prosecution. However, according to her: “In such cases, when the ‘ideal scenario’ fails to manifest itself in reality, there remains an international forum under which justice can be achieved if and when domestic remedies fail to provide a genuine solution. The ICC provides such a forum. Thus, essentially, it is an extraordinary remedy, available only when it can be shown that the domestic justice system can no longer be expected to provide a genuine solution to end impunity and prevent further acts of injustice.”

According to De Lima, “Complementarity consists of an examination of the existence of genuine relevant national proceedings in relation to the potential cases being considered for investigation by the Office, bearing in mind the Office’s prosecutorial strategy of investigating and prosecuting those most responsible for the most serious crimes. Conversely, complementarity is not fulfilled where the state party is able to show that it has taken genuine steps to: (1) End impunity; (2) Encourage genuine national proceedings; and (3) Prevent the further commission of the crime.”

Thus, Senator De Lima emphasizes, before resort can be made to the ICC, “it must be shown that substantial efforts have been exerted to the end of conducting a criminal prosecution in the jurisdiction of the state party, and that the accused has not been tried because the domestic legal system of the state party has failed to exact accountability”.

This follows from the rationale of the ICC which was established not to supplant the justice systems of the individual state parties, but to complement them. Hence, the principle of complementarity.

De Lima then observes:

“In relation to the Duterte Administration’s War on Drugs (WoD), the 2019 Report of the OTP states that, based on open source information, there is indication that “a limited number of investigations and prosecutions have been initiated (and, in some cases, completed) at the national level in respect of direct perpetrators of certain criminal conduct that allegedly took place in the context of, or connection to, the WoD campaign,” including, for example: 1. sporadic public updates provided by Philippine government officials and bodies on the number of investigations conducted by various authorities into killings that occurred during law enforcement operations; 2. criminal charges have been laid in the Philippines against a number of individuals – typically low-level, physical perpetrator – including in the case of the November 2018 death of 17-year-old Kian Delos Santos, wherein three police officers were convicted for murder by the Caloocan City Regional Trial Court; and 3. Although, in principle, only national investigations that are designed to result in criminal prosecutions (“national criminal investigations”) can trigger the application of article 17(a)-(c) of the Statute, out of an abundance of caution the Office also examined national developments that fall outside the technical scope of such term ‘national criminal investigations’, such as Senate Committee hearings into extrajudicial killings.”

De Lima recalls her own communication to the ICC, where she emphasized: “1. The demonization and attempt to defund the Commission on Human Rights by the Duterte regime; 2. The ouster of Supreme Court Chief Justice Maria Lourdes Sereno; and, 3. The failure of the Ombudsman to fulfill its mandate to investigate and file an impeachment complaint against Duterte.

In her communication De Lima argued that: “The CHR … is the only remaining credible institution capable of holding state security forces accountable for abuses and violations, in light of the fact that other state accountability institutions are under the direct control and supervision of the President who is the one responsible for the mass extermination program being carried out by the Philippine National Police at present. The CHR was also the very first government institution to undertake an investigation on the Davao Death Squad starting March of 2009. This was the time when Duterte threatened to line-up all CHR commissioners and shoot them one by one, before he met them face to face in the first public hearing on the DDS which was conducted at the very heart of Davao City.”

With regards to the ouster of Chief Justice Sereno, De Lima proposes that this was resorted to so that Duterte’s potential impeachment can be obstructed. According to de Lima, “Put simply, it is in this manner that Duterte plugged all the holes, and preemptively frustrated and sabotaged any and all legal avenues to hold him accountable under our constitutional framework.”

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