Memorandum

TO: Atty. Elvira Veronica Escueta-Duavit

FROM: 2012-45554

RE: International Criminal Court jurisdiction over ‘war on drugs’ incident

DATE: January 11, 2017

Facts

Over the months, the Philippines had been engaged in an all-out “war on drugs” led by the
recent Duterte administration. Under the Philippine National Police project, OPLAN DOUBLE
BARREL, or more popularly known as PROJECT TOKHANG, the Philippine Government
implemented the president’s long-promised action against illegal drugs and other forms of
criminality in the country.1 Originally, the purpose of the said project is to clear all the drug
affected barangays across the country and to neutralize illegal drug activities through capturing
drug personalities and syndicates.2

However, news reports have linked the said project of the Philippine National Police with
recent extra-judicial killings. More than that, there were casualties that resulted from the
enforcement of the said Philippine National Police operation. 3 Everything considered, the
Philippine “war on drugs” had been regarded as a bloody genocide of sorts by foreign media. 4

These events directed the focus of the international community towards the activities of the
current administration related to the extra-judicial killings as well as the casualties brought about
by OPLAN TOKHANG. In fact, the International Criminal Court had taken notice of the said
involvement of the current administration with regard to the incidents. In her official statement,
Prosecutor Bensouda emphasized that no one in the Philippines is beyond the jurisdiction of the
International Criminal Court.5 Office of Legal Affairs Acting Assistant Secretary Ausan, in
response, pointed out that the Philippine government does in fact subscribe to the same philosophy,

1
PNP Memorandum Circular No. 16-2016
2
Supra
3
Mong Platino, Duterte’s ‘War on Drugs’ in the Philippines: by the numbers, January 9, 2017,
http://thediplomat.com/2017/01/dutertes-war-on-drugs-in-the-philippines-by-the-numbers/
4
Eric Anthony Licas, Duterte References Hitler in defense of PH War on Drugs, September 30, 2016.
http://asianjournal.com/news/duterte-references-hitler-in-defense-of-ph-war-on-drugs/
5
International Criminal Court. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda
concerning the situation in the Republic of the Philippines, October 13, 2016, https://www.icc-
cpi.int/Pages/item.aspx?name=161013-otp-stat-php
but in the same manner denies that violations to any law have not been made, be it local, nor
international. 6 Controversies regarding the jurisdiction of the International Criminal Court and its
authority to try the cases of extra-judicial killings and the alleged involvement of the office of the
President are but some of the issues raised by these incidents.

Issues

1. Does the International Criminal Court have jurisdiction over the matter? What crime/s if
any, were committed?
2. May the Prosecutor of the ICC acquire jurisdiction of the case?
3. What are the president’s liabilities under Philippine Law?

Discussion

The Rome statute establishes an International Criminal Court which shall be given power
“to exercise its jurisdiction over persons for the most serious crimes of international concern.”7
Furthermore, the Rome Statute binds any State Party to the provisions and implications of the said
law. On August 30 2011, the Philippines had been ratified as a State Party to the Rome Statute,
and hence, bound by its jurisdiction.8 The question however, lies on whether the incidents involved
constitute as a case admissible in the International Criminal Court.

On the jurisdiction of the International Criminal Court

The International Criminal Court has jurisdiction on the incidents of extra-judicial killing
reported in the Philippines. Article 11 of the Rome Statute provides that “the Court may exercise
its jurisdiction only with respect to crimes committed after the entry into force of this
Statute.”9Furthermore, Article 12 points out that the Court may exercise its jurisdiction for crimes
committed within the territories of the State Parties or committed by its nationals. 10The crimes
indicated in the statute and among the cases which are within the International Criminal Court’s
jurisdiction. include a wide range of acts, most of which are recognized even under Philippine
laws. One of the crimes listed down which are said to be the category to which the extra-judicial
killings have been attributed to is that of murder. Murder is qualified by the Rome Statute as that
which is committed as “part of a widespread or systemic attack directed against civilian population,
with knowledge of the attack.”11 International Criminal Court Prosecutor Bensouda emphasized

6
Statement of the Philippines General Debate of the 15th Assembly of States Parties to the Rome Statute of the
International Criminal Court
7
Rome Statute of the International Criminal Court, December 28, 2000 (November 1, 2011), U.N.T.S.
8
Supra
9
See note 7, supra
10
See note 7, supra
11
See note 7, supra
that extra-judicial killings, if committed as a widespread or systemic attack against a civilian
population pursuant to a State policy falls under the jurisdiction of the Court. 12

The issue here however, is that while the International Criminal Court, in fact, has
jurisdiction over such cases, it necessarily entails that the case be tried in this Court. The
International Criminal Court was created to complement the national criminal justice system,
rather than supplant them. While the national courts decide to exercise jurisdiction on cases, the
International Criminal Court must not act. Article 17 elaborates the admissibility of cases to the
International Criminal Court, listing among the inadmissible cases, those that are “being
investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling
or unable genuinely to carry out the investigation or prosecution.”13Same provision points out that
cases where the State is unwilling or unable to prosecute are within the International Criminal
Court’s Jurisdiction. Such cases may include those incidents where the state courts’ decision are
questionable, or where the case may not progress due to institutional restraints. The long-held
doctrine of presidential immunity from suit is but one of the institutional restraints that deprive our
courts of jurisdiction over cases involving extra-judicial killings. In this case, therefore, the
International Criminal Court has jurisdiction. While the president enjoys executive immunity
privilege within state courts, Article 27 of the Rome Statute provides that the same applies to all
natural persons regardless of official capacity.14 Furthermore, the same provision states that
immunities or special procedural rules shall not extinguish the jurisdiction over any person.15

On the jurisdiction of the prosecutor of the International Criminal Court

Regardless of the admissibility of the case, the Prosecutor of the International Criminal
Court may initiate investigation based on information on crimes within the Court’s
jurisdiction.16Upon the filing of information, or the referral of a State Party, the Prosecutor may
investigate to determine whether such case may proceed to trial in the International Criminal Court.
However, the Prosecutor may only investigate when there is reasonable basis to proceed, and only
to the extent as determined by the Pre-Trial Chamber.17

While the same is true, no investigations have yet been made by the Prosecutor of the
International Criminal Court. However, if the trend continues, or if the institutions fail to contain

12
International Criminal Court. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda
concerning the situation in the Republic of the Philippines. October 13, 2016, https://www.icc-
cpi.int/Pages/item.aspx?name=161013-otp-stat-php
13
Rome Statute of the International Criminal Court, December 28, 2000 (November 1, 2011), U.N.T.S.
14
Supra
15
See note 14, supra
16
See note 14, supra
17
See note 14, supra
the unlawful activities resulting to the disputed incidents, this may generate ample cause that would
warrant a response from the Prosecutor and the International Court of Justice.

On the liability of the President under Philippine laws

Jurisprudence shows that while the 1987 Constitution does not expressly state that the
President is immune from suit, our system of government still recognizes the said privilege. 18 As
such, our state courts lack the authority to try cases involving the president during his
term.19Regardless of how incriminating the evidence provided is, the president may not be the
subject of a suit during his term.

Conclusion

The issue on the involvement of the president in recent extra-judicial killings poses an issue
on sovereignty, on the one hand, and bounds of international law on the other. As a State Party to
the Rome Statute, the Philippines, in effect, subscribes to the jurisdiction of the International
Criminal Court. The same act, however does not necessarily dispose of the authority that the state
courts have. The principle of complementarity establishes that the International Criminal Court
shall remain as a court of last resort, if the State itself is unable to settle the issues within its
capacity. Until it is proven that the state institutions fail to address the problem of extra-judicial
killings, unless laws and its mechanisms prohibit the state from attaining fruitful decisions, the
International Criminal Court cannot act.

18
David vs Macapagal-Arroyo, G.R. No. 171396, May 3, 2006
19
Soliven, vs Makasiar, G.R. No. 82585, November 14, 1988