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ICC sets initial review of allegations vs. Duterte’s war on drugs

The International Criminal Court (ICC) is set to do its initial review of allegations that President Rodrigo Duterte committed a crime against humanity in connection with his controversial war on drugs.

At a press briefing on Thursday, presidential spokesperson Harry Roque said The Hague-based ICC will conduct a preliminary examination on the communication made by lawyer Jude Sabio in April last year aimed at determining whether there is a reasonable basis to proceed with the preliminary investigation.

"There is only a preliminary examination. So if they think they have indicted the President, that's so wrong. They wish," Roque said.

Sabio urged the ICC prosecutor to investigate Duterte and senior administration officials and bring charges of crimes against humanity against them for "the terrifying and gruesome situation of continuing mass murder in the Philippines."

Sabio, who is the lawyer for Duterte's confessed hitman Edgar Matobato, alleged that the President "began his strategy or system of eliminating or killing persons suspected of crimes, including drug addicts and pushers" when he became mayor of Davao City in 1988.

"The 'repeated, unchanging and continuous' mass murder being conducted by the President Duterte has already resulted into the deaths of not less than 1,400 individuals in Davao City under his Davao Death Squad and not less than 7,000 individuals in his war on drugs at the national level," the filing said.

Roque said Duterte welcomed the preliminary examination, adding the chief executive "is sick and tired" of being accused of committing crimes against humanity.

The Palace official said if need be Duterte will argue his case before the ICC.

"He wants to be in court and put the prosecutor on the stand to ask, 'Who prodded you to proceed with the preliminary examination,' because it is the suspicion of the President that the domestic enemies of the State are behind this," Roque said.

For a preliminary investigation to prosper, the prosecutor must decide whether the communication has met the criteria on jurisdiction (temporal, either territorial or personal, and material); admissibility (complementarity and gravity); and the interests of justice.

A former human rights lawyer and law professor, Roque expressed confidence that Sabio's communication would not move past the preliminary examination stage.

Roque cited the principle of complementarity which underpins the creation of the ICC. He said the ICC may only exercise jurisdiction where national legal systems fail to do so.

"The ICC is not the court of first instance. All countries to the ICC signed up to it because they wanted the court to be the court of last resort," he said.

"We have immunity for our presidents but they subsist only during their tenure in office. As we have shown the world, two of our past presidents [Joseph Estrada and Gloria Macapagal-Arroyo] went to jail immediately after their terms of office. I referred to that to show that there is no unwillingness in the Philippines because obviously a president can be prosecuted for any acts committed after his term of office," Roque added.

Roque said the Philippine Embassy in the Hague will inform the ICC that the war on drugs is a sovereign act.

"The mens rea [criminal intent] is you kill them because they are civilians and the only reason why you kill them is because they are civilians. But if it is because of a lawful sovereign act to deal with the problem of illegal drugs, it is the position of the President that this cannot be the element for required for crime against humanity," he said.

Duterte has bristled at criticisms of his anti-illegal drugs policy in which scores have been killed since he took power on June 30, 2016.

His outbursts were aimed at the United States, the United Nations, the European Union, the Commission on Human Rights, human rights groups and other international institutions that disagree with his heavy-handed approach to curb the illegal drug menace. —KBK, GMA News