The Prosecutor v.

Rodrigo Duterte
Case Reference. ICC 06-16-02-19

Date: February 22, 2019

DECISION EN BANC

Concurring DFlores, NBatula, MPlaza:

1. The “War on Drugs” and Extra-judicial killings as declared by the Philippine

president, Rodrigo Duterte, has been considered as Crimes Against Humanity. As
reported by the Philippine National Police, 22,983 deaths have been under inquiry
since the president has taken office, yet only 4,279 are considered under the anti-drug
war.

2. It is in the Prosecutor’s contention that the ICC has jurisdiction over the case since
President Duterte has committed Crimes Against Humanity of Murder as stated in
Article 7 of the Rome Statute, emphasizing on the definition that the EJK is a
widespread and systematic attack on a civilian population. The Prosecution insists
that the ICC has power to intervene especially when the government has done
nothing to curb the rise of deaths due to the “Tokhang Operation” declared by
Rodrigo Duterte. The Prosecution also points out the doctrine of command
responsibility, that as Commander in Chief of the Philippines, military and police
power directly links him as a perpetrator of the said crimes albeit through his
subordinates.

3. The Defense rebuts that the ICC has no jurisdiction, declaring the principle of
complementarity, that Philippine courts have dealt with cases of extra-judicial killings
successfully, with conviction of policemen responsible for the death of Kian delos
Santos in Caloocan, and avers that the ICC may only intervene and investigate if the
State fails to do so. They also contend against the basis of the prosecution as to the
definition of crimes against humanity as “widespread and systematic attack on civilian
population,” arguing that cases like delos Santos and others more were isolated cases.
As to their witness, the Senator Bato dela Rosa, they contend as well the reliability of
the doctrine of command responsibility, since the burden to prove that President
 Rodrigo Duterte personally ordered the police to murder drug addicts lies with the
Prosecution, and they failed to do so.

4. In this international criminal court, we hereby resolve the following issues:

I. WHETHER OR NOT RODRIGO DUTERTE IS GUILTY OF CRIMES

AGAINST HUMANITY;
II. WHETHER OR NOT THE INTERNATIONAL CRIMINAL COURT
HAS JURISDICTION OVER THE CASE.

5. WAR ON DRUGS NOT A WAR

5.1. Upon reviewing of the facts and positions of both the Prosecution and the
Defense, we must first define whether the said “War on Drugs” is considered
“War,” to wit:
“War is a state of armed conflict between states, or group of persons
within the said state.”

5.2. As to that definition, the “War on Drugs” is not a war based on the letter that
the said war is not an armed conflict. Thus, it shall not be even considered as a
war crime for the ICC to obtain jurisdiction.

6. CRIMES AGAINST HUMANITY OF MURDER

6.1. As to the fact that the “War on Drugs” is not deemed a war crime, the only
recourse for the ICC to have jurisdiction is if the acts committed by Rodrigo
Duterte is a crime against humanity, specifically, of murder, as averred by the
Prosecution.

6.2. Crimes Against Humanity as defined by Article 3 of the Rome Statue states:
“Crimes Against Humanity are acts when committed as part of a widespread
or systematic attack directed against any civilian population, with the actor
having knowledge of the attack.”

6.3. We believe the Defense’s contention is with merit. The said Tokhang
Operation does not fall on the requirement of it being “widespread or
systematic attack” since most of the cases are isolated ones discovered in
various cities and towns around the Philippines.

7. COMMAND RESPONSIBILITY NOT APPLICABLE

7.1. Section 10 of RA 9851, or Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity, provides on the
doctrine of command responsibility, to wit:
“Section 10. Responsibility of Superiors. - In addition to other grounds of
criminal responsibility for crimes defined and penalized under this Act,
a superior shall be criminally responsible as a principal for such crimes
committed by subordinates under his/her effective command and
control, or effective authority and control as the case may be, as a
result of his/her failure to properly exercise control over such
subordinates, where:

(a) That superior either knew or, owing to the circumstances at the
time, should have known that the subordinates were committing or
about to commit such crimes;

(b) That superior failed to take all necessary and reasonable measures
within his/her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution.”

There is failure to establish that the police were acting on Rodrigo Duterte’s
orders. The Prosecution failed to prove that there was any verbal or written
orders from the president as to the manner and means of dealing with drug
addicts/pushers. The Defense provided a witness that asserts that the police
were not ordered to kill but only to detain and neutralize the drug addicts that
are in their custody. The direct link is absent.

7.2. Furthermore, we look into the Elements of Crimes provided by this Court.
Crimes Against Humanity of Murder has three requisites provided by Article 7
(a) of Elements of Crime, to wit:
1. The perpetrator killed one or more persons.
2. The conduct was committed as part of a widespread or systematic
attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack against a
civilian population.
 The first element is absent. And being that command responsibility is not
applicable; the Prosecution fails to establish in this Court that Rodrigo Duterte
meets the first element of Crimes Against Humanity of Murder.

7.3. This resolves the first issue.

8. PRINCIPLE OF COMPLEMENTARITY
8.1. The principle of complementarity provides that national jurisdictions, just like
the Philippines, have primacy over the ICC, as far as investigating, prosecuting
and trying cases – like the crime against humanity of murder under the Rome
Statute of the ICC – are concerned. Hence, in the context “War on Drugs,”
the Philippine courts, and not the ICC, are the ones that have primacy to carry
out investigations, prosecutions, and trial.

8.2. The ICC merely serves to complement the Philippines’ primary jurisdiction
over the gravest crimes punishable under the Rome Statute – the crime against
humanity of murder in the case of the Philippines. The ICC, however, will
likely step in, if Philippine authorities fail to act on the killings, as crimes
against humanity undermine the rule of international human rights law.

8.3. The Prosecution has provided a witness as to whose case is based on an

already decided case in Philippine Courts. It is the Court’s belief that it will be
redundant to try a case which has been closed with a favorable result to the
plaintiff. The policemen were convicted and are now imprisoned for the
murder of Kian delos Santos. The Philippine courts have not failed to act on
said killings.

8.4. Applying the principle of complementarity then, the murder case of Khareem
Ogatiz, should not have been directly brought up in the ICC, but should have
exhausted the Philippine courts for justice. The ICC may only intervene once
the local courts have failed to act and incriminate the violators of its own local
legislation, RA 9851.

8.5. This resolves the second issue.

9. WHEREFORE, we, the Judges of the International Criminal Court, sitting en banc,
renders this decision: the complaint for lack of jurisdiction and insufficient evidence is
DISMISSED and advises its recourse to the national courts; and the accused RODRIGO
DUTERTE, as based on the contentions aforementioned, is pronounced NOT
GUILTY of the Crimes Against Humanity of Murder defined by Article 7 of the Rome
Statute.