Principle of complementarity

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Five days ago, three Caloocan policemen involved in the killing of 17-year-old Kian delos Santos in August last year were found guilty of murder. The three policemen were assigned to the Caloocan City Police Station 7 when they killed Kian. The teen was shot while in a kneeling position in a dark alley in Barangay 160.

I have two children, one of whom is Kian’s age. As a human rights lawyer and more so as a parent, I laud the conviction of these policemen, who were found guilty by a competent court and following due process of the law. These rotten cops deserve to rot in jail for what they have done. The murder of Kian was a terrible crime that will stain the uniforms of all police officers, including those that act in accordance with the law.

“[T]he use of unnecessary force or wanton violence is not justified when the fulfilment of their duty as law enforcers can be effected otherwise. A shoot first, think later attitude can never be countenanced in a civilized society,” Judge Rodolfo Azucena said in his decision. Indeed, it is alarming when a life is ended senselessly and too soon. It is doubly terrifying when this life was ended by agents of the State.

It bears stressing that there is no presumption of regularity in a particular police operation when it results in the deaths of suspects. According to Rule 15.4 of the Revised Philippine National Police (PNP) Operations Procedures, inquest is mandatory when a suspect dies during a police operation. When I was still a member of Congress, I pestered former PNP Chief Ronald dela Rosa for the inquest reports of all the deaths committed under the PNP’s Oplan Tokhang.

These reports have become even more significant given the circumstances and manner of the deaths of Kian delos Santos, Carl Arnaiz, and many others whom the police said fought back or “nanlaban” to justify the use of deadly force. These inquest reports are necessary to remove doubt on any irregularity in police operations in which the death of a suspect happened. And as I advised General Bato then, crying during hearings will certainly not remove these doubts. The PNP must crack down as savagely on police scalawags and rogue cops as they do criminals; after all, we expect criminals to be criminals, but we expect the police to protect the innocent, not kill them. It is my hope that these convictions will serve as a reminder.

I also hope that these convictions will serve as proof to the critics of this administration that our justice system works and that efforts to bring to justice those who have violated the law have never been hampered or thwarted. As I have said over and over again, the Philippines should be given the opportunity to investigate and prosecute alleged extralegal killings before the International Criminal Court (ICC) intervenes.

In a speech I delivered as head of the Philippine Delegation to the 15th Session of the Assembly of the States Parties (ASP) to the ICC in the United Nations in New York in December 2017, I said that “the Philippines is prepared to act, as we have always acted, to bring to bear our national criminal justice system upon those who violate our laws and that ongoing national proceedings in relation to these crimes must therefore be respected, consistent with our sovereign rights and responsibility and the ICC’s principle of complementarity.”

Based on this principle of complementarity, States have the first responsibility and right to prosecute crimes over which the ICC has jurisdiction, including crimes against humanity.
Accordingly, the ICC may only exercise jurisdiction when national legal systems fail to do so, such as when they are unwilling, unable, or do not genuinely carry out proceedings. This is what distinguishes the ICC from other international courts.

It is then unfortunate that the ICC has allowed itself to be used as a venue for opponents of the Duterte administration to undermine the President’s policies, especially since its jurisdiction is clearly limited to those cases that the Philippines cannot or will not prosecute.
Surely, the conviction of Kian’s killers is proof not only that the Philippine government under President Rodrigo Roa Duterte has shown respect for the Philippines’ international legal obligations, but that the criminal justice system in the country is indeed able and willing to prosecute international crimes.

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