Crimes against humanity in our local courts

With insider witnesses coming out to identify the masterminds of the thousands of killings during the Duterte administration’s drug war, there’s increasing talk on the option to file crimes against humanity in our local courts, instead of waiting for prosecution at the International Criminal Court (ICC).

The criminal offense of “crimes against humanity” (CAH) refers to a “widespread or systematic attack directed against any civilian population” through killings, imprisonment, torture, among others. CAH has mostly been discussed in the context of the ICC. This has led many to believe that only the ICC has the exclusive power to punish CAH. Apart from being an international crime, however, CAH is also a domestic crime that can be prosecuted in our local courts because we have Republic Act No. 9851 which punishes it.

During the Duterte administration, it was futile to talk about prosecuting CAH locally. Now that there’s inertia and traction to expose the systematic and widespread killings during the past administration, should we abandon ICC prosecution and opt instead for local prosecution?

If there’s any group that will be so happy on a decision to abandon ICC prosecution in favor of local court prosecution, it will be former president Rodrigo Duterte and his allies (Dutertes). It has been their ardent wish from the very beginning that they be charged before Philippine courts, and not before the ICC. We will be granting their hearts’ desire, and we will be giving them a huge favor, if we cast aside international prosecution and choose local prosecution instead. The question is, why should we choose the playing field eagerly sought by the Dutertes, a venue which they suspiciously seem to consider as a guaranteed win for them, even before any prosecution starts?

If a domestic prosecution for crimes against humanity is filed in our local courts, it will amount to a recognition that the Dutertes are mass murderers who organized an army of killers and who went on a killing rampage all over the country. If the allegations of massive corruption against the Dutertes are true, then they have access to massive funds which can potentially be used to influence the results of any local prosecution. Faced with such dreaded individuals with access to guns and gold, who among our trial judges and prosecutors will have the gumption to handle their trial? How many witnesses will have the courage to testify against such cold-blooded monsters? I have been involved as private prosecutor in the Ampatuan massacre, representing families of 18 victims, and I witnessed the gargantuan efforts adopted by various government agencies to ensure the safety of the judge, prosecutors, and witnesses. There were 58 killings in the Ampatuan massacre, while the Dutertes are accused of as many as 30,000 killings. The Ampatuans are kindergarten bullies compared to the Dutertes.

We should also be conscious of the fact that the willingness of the Marcos administration to join the bandwagon of justice-seekers against the Dutertes, is purely driven by politics. It hasn’t even been a year since the Marcoses and the Dutertes were still the closest of allies. In its submissions in the ICC, the Marcos administration even absolves the Dutertes by virtually arguing that no CAH were committed in the Philippines. If the political winds change, which will happen when new political mandarins who will next sit in Malacañang become allies of the Dutertes, any domestic prosecution of CAH will bend in the altered direction of political alliances. What will then happen to the victims, witnesses, and insider confidantes who are convinced to testify against the Dutertes? A quest for justice anchored on unsteady political foundations can result in tragic consequences for victims’ families and witnesses.

And what has been our government’s record in seeking justice against supposedly big fish? Government – 0, Big Fish – 5. Read these names and consider their fates: Joseph Estrada, Gloria Macapagal Arroyo, Bong Revilla, Jinggoy Estrada, and Juan Ponce Enrile.

What could work is to allow the ICC to prosecute the highest officials who “bear the greatest responsibility” for CAH. From the House of Representatives’ quad committee hearings so far, these are Duterte, Ronald “Bato” dela Rosa, and Christopher “Bong” Go. Then our government can use RA 9851 to prosecute the mid-level CAH perpetrators such as Police Col. Lito Patay who is accused of about 100 killings as head of Quezon City Police Station 6; the similarly patterned twin killings of Batangas Mayor Antonio Halili and Laguna Mayor Caesar Perez; the highest police officers who perpetrated the Bulacan “one-time big-time” killings; the masterminds of multiple killings in Cebu City, Caloocan City, etc.

Prosecuting all those responsible for the crime of the century in our country will strain our governmental institutions and personnel beyond their limits. Let the ICC prosecute those who bear the greatest responsibility, and leave our local courts to exact justice against the mid-level perpetrators.

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