President Rodrigo Duterte invoked presidential immunity when he threatened to kill criminals and…
The story of a self-confessed killer is what lawyers hope will convince the International Criminal Court (ICC) that allegations of mass murder brought against President Rodrigo Duterte have firsthand basis.
And no, that person is neither Edgar Matobato nor Arturo Lascañas, both of whom have publicly admitted to killing in behalf of Duterte and his Davao Death Squad (DDS).
It’s the story of Ernesto Avasola, whose 2009 testimony before a Regional Trial Court in Manila has been validated by the Supreme Court, that lawyer Jude Josue Sabio hopes will make the ICC give equal weight to the stories of Matobato and Lascañas.
On Monday, Sabio, Matobato’s lawyer, filed before the ICC at The Hague, Netherlands a 77-page complaint accusing Duterte and other top public officials of crimes against humanity, colluding in the widespread extrajudicial killings during Duterte’s 22-year term as mayor up to his presidency, in the guise of the bloody war on drugs.
Duterte’s chief legal adviser Salvador Panelo and spokesperson Ernesto Abella have dismissed the case as a baseless “black propaganda” smeared by critics just when crime rates are plunging, and culled largely from the claims of admitted murderers, mainly Matobato and Lascañas. They forgot to mention Avasola.
Avasola’s name did not surface in the Senate hearings on the Davao Death Squad. He wasn’t mentioned by Matobato, who owned up to killing at least 50 people from 1988 to 2013.
But in 2009 Avasola testified before a Regional Trial Court in Manila that he helped bury the remains of six people in the Laud Compound in Davao City.
The Laud Compound, or Laud Quarry according to Matobato, was named after its owner, retired Senior Police Officer 4 Bienvenido Laud, who is among those implicated in the DDS. It was where the bodies of members of the Patasaja family were lined up and buried naked after they were killed, Lascañas earlier said. (See: Lascañas: ‘Superman’ ordered death of political enemies, innocents)
On the basis of Avasola’s claim in open court, Judge William Simon Peralta, then-Vice Executive Judge of the Manila RTC, issued a warrant to search the Laud compound for human skeletal remains.
A few days later, on a motion by Laud’s lawyers, now Justice Secretary Vitaliano Aguirre and Executive Secretary Salvador Medialdea, Peralta set aside the search warrant.
The Philippine National Police brought the case to the Court of Appeals, which affirmed the search warrant, prompting Laud to challenge it before the Supreme Court. The PNP at that time was headed by Director-General Jesus Versoza. The president then was Gloria Macapagal Arroyo, a Duterte ally.
On Nov. 19, 2014, the SC upheld the validity of the search warrant.
“The search of the Laud Compound caves yielded positive results for the presence of human remains,” the SC decision read.
Sabio, in his complaint, lamented the lack of follow-up investigation by the police or the Department of Justice since the SC had upheld the implementation of the search warrant.
“The firsthand account of Avasola was believed by the Supreme Court when it upheld the search warrant,” Sabio said in his complaint. “Like Avasola, Matobato also gave a firsthand account. By parity of reasoning, he should also be bel ieved.”
More than 1,400 killed by the DDS -- cleric
Beyond firsthand accounts, however, Sabio drew heavily from news reports, and reports of international human rights organizations to bolster his case. He cited Catholic priest Amado Picardal’s consolidated report on the victims of the DDS from 1998 to 2015, which was culled from an anonymous source.
According to Picardal, a total of 1,424 were murdered by the death squad, most of them young, poor and suspected of using illegal drugs. They were unarmed and did not fight back. Of this number, 1,367 were male and 57 female. There had been 132 children killed, the youngest was a 12-year-old boy.
A 9-year-old boy died from a stray bullet. There were 14 cases of mistaken identity, the report said.
Picardal admitted he witnessed the aftermath of the “murderous spree” twice. First, while officiating a wedding mass in Bajada, he heard shots from the car park only to discover that a teenage boy, who had been suspected of stealing, was shot dead by motorcycle-riding men. Parked nearby was a police car who fired warning shots into the air but did not go after the killers, Picardal said.
EJKs as ‘best practice’ strategy
The ICC has special jurisdiction limited to the most serious crimes of concern such as war crimes, genocide, crime of aggression, and crimes against humanity.
According to Article 7 of the Rome Statute of the ICC, the charge “crime against humanity of murder” has three elements: 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; and 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.”
Sabio in his complaint said the charge against Duterte satisfies all three.
While still mayor and as president, Duterte’s pronouncements to kill criminals “constitute an incitement, encouragement or furtherance to commit the crimes against humanity in his war on drugs at the national level.”
His failure to exercise command responsibility through investigating deaths carried out by the DDS and those chalked up in the war on drugs despite his knowledge of the attack, make him criminally liable for mass murder, Sabio said.
Duterte has publicly admitted he killed three to four people while he was Davao City mayor, once, to show cops that if he could do it, they should, too, the complaint said.
The murders of nameless people in Davao City, whose bodies were buried at the Laud compound, or thrown into Samal Island were carried out as part of the “best practice” strategy or system of eliminating or “erasing” suspected criminals as a method of crime control, constituting a widespread or systematic attack directed against a civilian population, Sabio said.
In numerous press briefings in 2016, Duterte invoked immunity when he threatened to kill criminals.
Article 27 of the Rome Statute states that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”
ICC has indicted world leaders for crimes against humanity, such as Sudan president Omar Hassan Ahmad Al Bashir and Kenyan president Uhuru Muigai Kenyatta for post-election violence. (See: VERA FILES FACT CHECK: ICC can strip off Duterte’s immunity)
In an earlier interview with VERA Files, Kabayan Partylist representative Harry Roque said even without direct participation, the president can be indicted for crimes under the principle of command responsibility so long as he knew that such crime was being committed, and he failed to take all necessary and reasonable measures within his power to stop such acts.”
However, human rights lawyer Romel Bagares pointed out the ICC only has jurisdiction on cases from 2011, when the Philippines became a party to the Rome Statute.
Fatima Besounda, prosecutor of the ICC, said in 2016 the "(ICC) has jurisdiction over genocide, crimes against humanity and war crimes committed on the territory or by nationals of the Philippines since Nov. 1, 2011, the date when the Statute entered into force in the Philippines."