De Lima calls ICC probe on gov'ts drug war an 'extraordinary remedy'

Opposition Senator Leila M. de Lima has called the International Criminal Court's (ICC) full-blown investigation of the thousands of killings under the Duterte regime's drug war an "extraordinary remedy," which she said is possible in the case of the Philippines where domestic justice system can no longer be expected to provide a genuine solution to end impunity and prevent further acts of injustice.

In a lecture presented by Dean Tony La Viña on De Lima's behalf during the webinar entitled "Duterte's Crimes Against Humanity: Rendering Justice Through ICC" last June 28, De Lima said the most heinous offenses are the ones that usually go unpunished, especially when it is the very same officials who are in charge of protecting the people that are committing acts of violence against them with impunity.

"Ideally, domestic problems of extrajudicial killings should be resolved domestically, employing our domestic constitutional and legal remedies of criminal investigation and prosecution," she said.

"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," De Lima added.

Then ICC Chief Prosecutor Fatou Bensouda announced last June 14 that she has sought permission for a full-blown investigation to follow The Office of The Prosecutor's (OTP) preliminary examination into the allegations against Duterte and others involved in the current administration's drug war, committed from July 1, 2016 to March 16, 2019, or prior to Duterte's withdrawal of the country from the Rome Statute.

In its Preliminary Examination Report to the Pre-trial Chamber of the ICC to request authorization to proceed with the investigation of Philippine case, De Lima recalled that the OTP said there was a "failure to take steps to investigate or prosecute" EJKs in the drug war, aside from Duterte promising immunity for the perpetrators.

In March 2018, it may be recalled that Duterte ordered the withdrawal of the Philippines from the Rome Statute, the treaty that created the ICC, and while the withdrawal was formalized on March 17, 2019, Bensouda proceeded with her probe.

Under article 53(1) (a)-(c) of the Statute, it is stated that the OTP shall conduct a preliminary examination in order to "determine whether there is a reasonable basis to proceed with an investigation into the situation" by considering factors that are not limited to jurisdiction, interests of justice, but also of complementarity.

"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," she explained.

"The requirement of complementarity is not satisfied 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," she said.

"The OTP was never in a rush to find the existence of complementarity and proceed with their own investigation. In fact, it gave the Philippine government ample opportunity to resolve the crimes under our own system of domestic remedies."

"Unfortunately, at each and every turn, the Duterte Administration sought to defeat our own legal system from genuinely ending impunity or enforcing accountability, and preventing state actors from perpetrating further atrocities," she added.

The 2019 Report of the OTP on the government's drug war noted 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 drug war.

It may be recalled that De Lima, for her part, submitted a communication to the ICC on October 9, 2017, meant to supplement the earlier filed communications of the late Atty. Jude Sabio, former Senator Antonio Trillanes IV, and former Rep. Gary Alejano.

The said ICC Communication discussed, among others, "the failure of the justice system to prosecute Duterte" which consisted of sub-topics such as the demonization and attempt to defund the CHR by the Duterte regime and the failure of the Ombudsman to fulfill its mandate to investigate and file an impeachment complaint against Duterte.