ICC sees crimes against humanity in Philippines drug war

MANILA, Philippines — The International Criminal Court (ICC) has found “reasonable basis” to believe that crimes against humanity were committed in President Duterte’s war on drugs, which has reportedly killed over 20,000 people since 2016.

“The Office is satisfied that information available provides a reasonable basis to believe that the crimes against humanity of murder (Article 7(1)(a)), torture (Article 7(1)(f)) and the infliction of serious physical injury and mental harm as other inhumane Acts (Article 7(1)(k)) were committed on the territory of the Philippines between at least 1 July 2016 and 16 March 2019, in connection to the WoD (war on drugs) campaign launched throughout the country,” ICC Prosecutor Fatou Bensouda said in a report released yesterday.

Bensouda’s office launched in February 2018 a preliminary examination of the alleged summary killings in the Philippines since July 1, 2016 in connection with Duterte’s anti-drug campaign.

The preliminary probe focused on allegations that Duterte and senior members of law enforcement agencies including the Philippine National Police (PNP) and other government bodies “actively promoted” and “encouraged” the killing of suspected drug offenders and users.

The ICC aims to conclude its preliminary examination on Duterte’s controversial war on drugs this year.

However, Bensouda said the COVID-19 pandemic as well as “capacity constraints” have stalled the conclusion of the preliminary examination.

“Nonetheless, 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,” she said.

In March 2019, the Philippines withdrew from the Rome Statute, which created the ICC.

The country submitted a notice of withdrawal from the ICC on March 17, 2018 that took effect a year later. But nonetheless, the ICC pushed through with its preliminary examination.

“The Court retains jurisdiction over alleged crimes that have occurred on the territory of the Philippines during the period when it was a State Party to the Statute, namely from 1 November 2011 up to and including 16 March 2019,” Bensouda said.

The ICC’s conduct of preliminary examination stemmed from a complaint filed by lawyer Jude Sabio in April 2017, accusing Duterte of committing crimes against humanity for thousands of alleged extrajudicial killings in the conduct of Duterte’s anti-drug campaign.

Citing data from the Philippine Drug Enforcement Agency, the Human Rights Watch (HRW) said a total of 4,948 suspected drug users and dealers died during police operations from July 1, 2016 to Sept. 30, 2018. The figure does not include the thousands of others killed by unidentified gunmen and classified by the PNP only as “homicides under investigation.” There are 22,983 such cases, according to a 2019 HRW report, citing PNP data.

Sought for reaction, PNP spokesman Brig. Gen. Ildebrandi Usana said, “We refrain from making any comments if need be at this point until we obtain the ICC findings in detail.”

Vindication

The Makabayan bloc composed of militant lawmakers welcomed the release of the ICC report.

“We are glad that the ICC prosecutor found credence to these complaints and the pieces of evidence that we have presented,” Makabayan led by Bayan Muna party-list Rep. Carlos Zarate said in a statement.

Zarate said the release of the ICC report was timely in view of “the recent intensified red tagging, arrests and extrajudicial killings of critics of the administration and the political opposition.”

“We are relieved that the ICC has voiced its concern on the issue. To the violators of human rights, you have been forewarned. Nothing is forever; not even impunity,” he said.

“We welcome this significant development and its implications on what can only be described as a rapidly deteriorating human rights crisis in the Philippines,” said Karapatan secretary-general Cristina Palabay.

“As we await the decision of the Office of the Prosecutor, we press our calls for justice for the Duterte administration’s crimes against the Filipino people,” she added.

Malacañang, meanwhile, dismissed the report, saying the ICC has no jurisdiction over the President. “They can do what they want to do. We do not recognize the jurisdiction of ICC and the decision of the ICC,” presidential spokesman Harry Roque said at a press briefing.

“The ICC has no jurisdiction over the person of our President and we are confident that with the jurisprudence in the ICC, there is no reason to continue the examination of the prosecutor of the ICC,” he added.

Roque noted that a request of the ICC prosecutor to start a probe on alleged US crimes in Afghanistan was rejected at the pre-trial level because the countries involved were uncooperative.

“In the case involving Americans in relation to what happened in Afghanistan, (the decision) states that if there is no cooperation, then why start an investigation?” the Palace spokesman said.

“I am confident that they will apply the same principle when it comes to the President... It would be up to the prosecutor to decide if she wants a second ruling stating that an investigation cannot be done if there is no cooperation,” Roque said.

“Obviously, we do not agree with her. It’s legally erroneous because we have a minimum gravity required. Not all crimes can be tried by the ICC,” Roque, who had pushed for the ratification of the treaty that formed the ICC, also said, referring to Bensouda.

“As a lawyer, the prosecutor cannot ignore that jurisprudence that the investigation should not continue if it won’t be successful due to the absence of cooperation,” he pointed out.

Out of ICC

Foreign Affairs Secretary Teodoro Locsin Jr. also belittled Bensouda’s report, saying the country has already withdrawn from the ICC.

“I pulled us out of ICC well over a year ago. Don’t tell me membership is a life sentence. We should listened to the United States but we got sentimental and joined to give Miriam Santiago a crack at an ICC judgeship,” Locsin said in a Tweet.

The US is not a state party to the Rome Statute, which created the ICC.

Some senators from the majority bloc also dismissed the initial findings of ICC’s Bensouda.

“That’s what she (Bensouda) believes. Some believe otherwise,” Senate President Vicente Sotto III said on Twitter.

Sen. Panfilo Lacson, a former chief of the PNP, said Bensouda’s own statement apparently admits possible weaknesses in her findings.

“I’m not sure what the ICC prosecutor actually meant by ‘reasonable basis to believe’. Under the ICC statute, reasonable grounds to believe is considered as an ‘unreasonably unclear evidentiary threshold,’” Lacson said in a statement.

“In the realm of possibilities to prosecute the President for crimes against humanity, the statement of Prosecutor Bensouda may only be good as a press release and nothing more, at least at this point in time,” he said.

Another threshold that the ICC prosecutor needs to hurdle in order to get the permission of the international body to proceed, he said, is to prove that the criminal justice system in the Philippines is not functioning or at least has fallen short in prosecuting law enforcement agents allegedly involved in crimes against humanity.  Sen. Francis Pangilinan said the ICC report should have come sooner.

“It is a bit troubling though that it took them over four years of daily killings to find ‘reasonable basis.’ Perhaps if they acted sooner, thousands of lives could have been saved,” Pangilinan said.

Sen. Risa Hontiveros found Bensouda’s “reasonable basis” as an understatement.

“Still, I strongly hope the recent findings of the ICC finally bring justice to the victims of this administration’s brutal war on drugs. This report offers new hope for justice and humanity, as we continue to commemorate all those felled by bloody ‘tokhang’,” Hontiveros said in a statement. –  Alexis Romero, Edu Punay, Rhodina Villanueva, Paolo Romero, Emmanuel Tupas