MANILA, Philippines (Updated 10:07 a.m.) — The decision on whether the International Criminal Court’s chief prosecutor will seek authorization to launch an investigation into alleged extrajudicial killings linked to the government’s "war on drugs" would be out in the first half of 2021.
The ICC prosecutor launched a preliminary examination into the alleged extrajudicial killings in the context of the government’s anti-drug crackdown in February 2018, leading to the withdrawal of the Philippines from the Hague-based body.
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“The Office anticipates reaching a decision on whether to seek authorization to open an investigation into the situation in the Philippines in the first half of 2021,” ICC Prosecutor Fatou Bensouda said in a report Tuesday.
Her office said in the report that it is "satisfied that information available provides a reasonable basis to believe" the crimes against humanity of murder, torture and "the infliction of serious physical injury and mental harm" were committed in the Philippines between July 1, 2016 and March 16, 2019 "in connection to the ['War on Drugs'] campaign launched throughout the country."
The Philippine government has stressed that extrajudicial killings are not state policy, although President Rodrigo Duterte and his officials often comment on killing criminals, particularly those allegedly involved in the illegal drug trade. These comments have been explained away by the Palace as hyperbole and as expressions of frustration.
The government acknowledges the deaths of nearly 6,000 "drug personalities" in anti-narcotics operations — the Philippine National Police reported 7,987 by the end of October — all of whom reportedly violently resisted arrest.
In 2019, Bensouda said her office’s goal was to finalize the preliminary examination in 2020. But the examination was affected by the “COVID-19-pandemic and capacity constraints,” she said.
A preliminary examination determines if an alleged crime falls within the court’s jurisdiction and if a full-blown probe is needed.
If Bensouda concludes that there is a reasonable basis to proceed with an investigation, the next step would be to submit to the Pre-Trial Chamber permission to open an investigation, together with any supporting material collected.
Set up in 2002 to probe the world’s worst crimes, the ICC is a “court of last resort” and steps in and exercises jurisdiction only if member states are unwilling or unable to prosecute offenders.
In 2018, the Philippines withdrew its ratification of the Rome Statute, the treaty the established ICC. The government insists local courts are functioning well and exercise jurisdiction over any complaints.
The country’s withdrawal formally took effect in March 2019 but it did not stop the conduct of preliminary examination.
Prosecutor’s activities
The Office of the Prosecutor reported that it has finalized its subject-matter analysis and collected and assessed open source information on any relevant national proceedings being conducted by Philippine authorities, and analysed information relevant to gravity.
“Open source information indicates that a limited number of investigations and prosecutions have been initiated (and, in some cases, completed) at the national level in respect of direct perpetrators of certain criminal conduct that allegedly took place in the context of, or connection to, the [war on drugs] campaign,” the Office of the Prosecutor said.
“The information available also indicates that criminal charges have been laid in the Philippines against a limited number of individuals–typically low-level, physical perpetrators–with respect to some drug-related killings,” it added, noting the only one drug war case resulted in conviction —for the murder of 17-year-old school boy Kian delos Santos in 2017.
It also said the office continued to engage and consult with stakeholders in order “to address a range of matter relevant to the preliminary examination and to seek further information to inform its assessment of the situation.”
Bensouda’s office added it has been following “with concern” reports of threats and other measures apparently taken against human rights defenders, journalists and others, including critics of the government’s bloody campaign against illegal drugs.
“The Office will continue to closely monitor such reports as well as other relevant developments in the Philippines,” it said.
'Drug war' review panel
During the 44th session of the United Nations Human Rights Council in June, Justice Secretary Menardo Guevarra announced the government has created an inter-agency panel to investigate 'drug war'-related killings.
The inter-agency panel, chaired by the DOJ, was formed to conduct as “judicious review of the 5,655 anti-illegal drug operations where deaths occurred.”
Human rights group said the creation of the “drug war” review panel was designed to shield the Duterte administration from scrutiny.
The panel figured significantly in the resolution of the 47-member UNHRC in October that sought for capacity building and technical assistance to improve the human rights situation in the Philippines.
The initial report of the DOJ-led review panel is expected to be released this month.
UN report: ‘Heavy-handed’ focus on drugs led to grave human rights violations
The ICC prosecutor’s announcement comes months after the UN Office High Commissioner for Human Rights released a report detailing human rights violations in the Philippines that stemmed from the government’s “heavy-handed” focus on combating illegal drugs and security threats coupled with verbal encouragement from top officials.
“The findings of the report were very serious. Law and policies to counter national security threats and illegal drugs have been crafted and implemented in ways that severely impact human rights,” UN rights chief Michelle Bachelet said as she formally presented her office’s report to the UNHRC in June.
“The campaign against illegal drugs is being carried out without due regard for the rule of law, due process and the human rights of people who may be using or selling drugs. The report finds that the killings have been widespread and systematic—and they are ongoing,” she added.
The polarizing campaign against illegal drugs was launched by Duterte in 2016 after winning elections with his ruthless anti-narcotics and anti-crime platform.
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