ICC prosecutor's statement indicates serious interest in examining EJKs in PHL –legal experts

International Criminal Court Chief Prosecutor Fatou Bensouda's statements should be taken "very seriously" as her office does not make unstudied remarks, Dean Jose Manuel Diokno of the De La Salle University College of Law said over the weekend.

In an phone interview with GMA News Online last Saturday, Diokno provided context to Bensouda's remarks that she is "deeply concerned about these alleged killings" in the Philippines, which she said seemed condoned by high officials.

"They wouldn't just come up with these statements," Diokno said.

According to him, Bensouda expressing her concern opened up a possible review of what's happening under the Duterte administration.

"Essentially, what they would do is conduct a preliminary examination to determine if a formal investigation is necessary," Diokno said, adding that although the ICC is free to investigate, the Philippine government is not required to respond.

If the Office of the Prosecutor finds after "a thorough analysis of the available information" that there is reason to proceed to the next step, investigators will be sent to collect evidence, he said.

From examination to investigation

GMA News Online on Monday sought the help of University of the Philippines College of Law professor and Akbayan Party-list Rep. Ibarra "Barry" Gutierrez III to explain what the ICC needs to move from examination to an official investigation.

Gutierrez confirmed that some public statements made by high ranking officials could be taken as evidence for a possible case.

"Maingat talaga dapat ang mga officials with key roles in the government and law enforcement. Some statements made by [Justice] Secretary [Vitaliano] Aguirre, for example, tend to imply that the government is not serious about the issue," Gutierrez said.

"It is important to note public pronouncements from the President, as he is the highest executive officer of the State—when he says 'don’t worry, I’ll stand by you' to the military when talking about killings, or when General Bato says 'sunugin ang mga bahay ng drug user'," he added, referring to Philippine National Police chief Dir. Gen. Ronald Dela Rosa.

Arrest of a president

In the Philippines, the line of succession is clearly outlined and should the president be arrested by the ICC, Diokno said he does not believe that there would be political instability.

However, the arrest of a president could have a negative impact on the country's reputation.

"An ICC case by itself won’t lead to that immediately. But if a head of state—as in the case of Syria—is indicted, then obviously a bulk of the international community will consider your position as problematic," Guiterrez said.

"The ICC is an internationally recognized mechanism for bringing war crimes to justice, so it is no small thing to be prosecuted or charged by them. Even if the head of state is not physically arrested, it is a huge reflection on the Republic."

No immunity

San Beda Graduate School of Law. Dean. Fr. Ranhilio C. Aquino, in a separate interview, said a possible case against President Rodrigo Duterte, whose war on drugs is being blamed for the spate in extrajudicial killings, will depend on the outcome of the investigation, which can be initiated by the Office of the Prosecutor.

Citing a guide to the ICC, Diokno said heads of states cannot invoke immunity if the ICC decides to file a case against them.

"No one is exempt from prosecution because of his or her current functions or because of the position he or she held at the time the crimes concerned were committed," he said.

"Acting as a Head of State or Government, minister or parliamentarian does not exempt anyone from criminal responsibility before the ICC," the handbook reads.

Aquino said that the ICC has handed judgments against incumbent heads of other countries before, and that their position is not a hindrance against prosecution.

The ICC is also capable of issuing a warrant of arrest against a sitting president if the evidence shows that he is culpable, but Diokno said his or her suspension or removal from office would depend on the country's own government.

Aquino said a case will only prosper based on the facts found upon investigating, but Diokno told GMA News Online that he believes that the ICC would not find it hard to look for the evidence it needs.

"I really believe that what is happening now is 'systematic attack directed against any civilian population'," he said, citing the ICC's definition of crimes against humanity.

The ICC prosecutes the following acts as crimes against humanity:

• murder;
• extermination;
• enslavement;
• deportation or forcible transfer of population;
• imprisonment;
• torture;
• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
• enforced disappearance of persons;
• the crime of apartheid;
• other inhumane acts of a similar character intentionally causing great suffering or  serious bodily or mental injury.

The Philippines is the 117th State Party of the ICC and per Article 4 of the Rome Statute, which gives the organization jurisdiction over the country. The Philippines and other member states are expected to cooperate with the ICC.

Gutierrez, however, emphasized that the ICC is a court of "last resort" and that the Principle of Complementarity is applicable.

"The ICC cannot immediately exercise original jurisdiction over a member state. They may only act if it is shown that the state has refused to, or is incapable of taking jurisdiction over the cases," he said.

"The prosecutor may look into what actions have been taken by the courts, independent bodies like the CHR, the PNP, and the DOJ, and whether these actions have been shown to be inadequate," Gutierrez added. —KBK, GMA News