BY NATIONAL UNION OF PEOPLES’ LAWYERS – PANAY CHAPTER
ON SEPTEMBER 15, 2021, the Pre-Trial Chamber I of the International Criminal Court released a decision authorizing the ICC Prosecutor to conduct a full-blown investigation into crimes against humanity in relation to President Rodrigo Duterte’s war on drugs and similar crimes committed in Davao while he was still mayor.
What was the basis for the ICC’s decision?
The ICC Pre-Trial Chamber reviewed the material submitted by the ICC Prosecutor and concluded that crimes against humanity appear to have been committed and that these cases may fall within its jurisdiction.
The Chamber said that the thousands of extrajudicial killings, carried out by state security forces and vigilantes against suspected drug dealers and users, were part of Duterte’s anti-drug campaign.
These killings, the Chamber added, constitute an attack against a civilian population which cannot be considered part of legitimate operations. This attack is also widespread in view of the aggregate number of victims – with estimates ranging from 12,000 to 30,000 – and the fact that the murders took place across the entire country.
Therefore, the ICC prosecutor has been given the go-ahead to launch a full investigation into these crimes against humanity in order to determine criminal liability.
How did the ICC describe the government’s role in the drug war killings?
The ICC Pre-Trial Chamber said it is apparent that the killings were in line with official state policy. It noted that these were encouraged by President Duterte himself, before and after he assumed the post in 2016, and that there is a clear link between the killings and the government’s formal anti-drug campaign.
The Chamber also concluded that the Philippine government failed to take meaningful steps to investigate these crimes, and that the physical perpetrators were given cash payments, promotions or awards and were even promised immunity or pardon for these acts.
What would be the scope of the ICC investigation?
The investigation will focus on extrajudicial killings that took place in the context of the war on drugs between November 1, 2011, when the Philippines became a state-party to the Rome Statute, and March 16, 2019, the date of effectivity of its withdrawal from the said treaty.
This means that the probe will cover drug war killings in the Davao area when Duterte was still Davao City Mayor.
The Chamber also noted that other inhumane acts like torture, imprisonment or severe deprivation of liberty, enforced disappearance, and sexual violence are likewise reflected in the records. Hence, the investigation would be extended to other crimes committed during the anti-drug campaign.
What effect would the country’s withdrawal from the Rome Statute have on the impending ICC investigation?
The Pre-Trial Chamber said that the ICC retains jurisdiction over crimes that occurred while the Philippines was still a state-party and up until the effectivity of its withdrawal from the Rome Statute. Thus, the ICC investigation will proceed despite the latter occurrence.
What can we expect from the ICC investigation?
At this stage, the ICC Prosecutor’s task is to investigate facts and gather evidence for the purpose of assessing criminal responsibility. If crimes against humanity have been committed, the investigation will also delve into the identities of those who may be prosecuted and tried before the ICC.
To that end, the ICC Prosecutor can, among other things, collect evidence; question the victims, witnesses, and persons being investigated; and seek the cooperation of any country or inter-governmental organization, like the United Nations and the International Criminal Police Organization (INTERPOL).
The victims, their families, or other witnesses – even those who did not take part in prior ICC proceedings – may supply additional evidence in connection with crimes against humanity. The ICC Prosecutor can take the necessary steps to ensure the confidentiality of information to protect such persons or preserve the evidence.
What other actions can the ICC take after the investigation has been initiated?
If there are reasonable grounds to believe that crimes against humanity were indeed committed, the ICC Prosecutor can request the Pre-Trial Chamber to issue a warrant of arrest against the persons responsible, provided their arrest is necessary to: (a) ensure attendance during trial; (b) prevent obstruction of the ICC investigation or proceedings; or (c) prevent the continuation of said crimes arising from similar circumstances.
In the alternative, the Pre-Trial Chamber may also issue a summons if it believes this would be sufficient to ensure a person’s appearance before the ICC.
What can we expect from the Duterte government?
As a matter of policy, the ICC focuses not just on the physical perpetrators but, more importantly, on the architects of state policies that result in widespread atrocities.
They may include not just President Duterte but also Sen. Ronaldo Dela Rosa and other PNP directors and officers, department secretaries and cabinet-level officials, and anybody else who played a role in crafting and implementing the government’s bloody anti-drug campaign.
Being aware of this fact, President Duterte and his allies will certainly resist all efforts by the ICC to investigate and prosecute the crimes committed under its flagship program.
Nevertheless, non-cooperation with the ICC on such a grave matter can turn the Philippine government into a global pariah, and its officials into international fugitives. So, regardless of how dismissive the Duterte administration can be about the ICC, this recent development definitely brings it significantly closer to its day of reckoning./PN
