COVID-19, uncooperative Philippines seen to slow down ICC probe

Kristine Joy Patag - Philstar.com
COVID-19, uncooperative Philippines seen to slow down ICC probe
File photo shows people lighting candles to protest drug war killings.
The STAR / Miguel de Guzman, File

MANILA, Philippines — An uncooperative Philippine government and an International Criminal Court whose resources have also been hit by the pandemic may prolong the wait for justice for families who have lost loved ones in alleged summary killings linked to President Rodrigo Duterte’s bloody “war on drugs”, experts said.

While human rights watchdogs and advocates hailed the Office of the Prosecutor – ICC’s request to launch an investigation into alleged crimes against humanity in extrajudicial killings in the Philippines, challenges still lie ahead.

It took more than three years for ICC Prosecutor Fatou Bensouda’s preliminary examination into the Philippines to be concluded, and on what has been called as her valedictory, she made public a 57-page request to the pre-trial chamber to be allowed to proceed with investigation.

Bensouda said her office found "a reasonable basis to believe that the crime against humanity of murder has been committed... in the context of the Government of the Philippines' 'war on drugs' campaign."

Philippines won’t cooperate

The Palace has, time and again, said that it will not cooperate with the ICC if it pushes through with its investigation. In 2019, Duterte even ordered the country’s unilateral withdrawal from the Rome Statute, after Bensouda launched a preliminary examination into the country.

With the latest development at the international tribunal, presidential spokesperson Harry Roque reiterated this: “The president will never cooperate until the end of his term on June 30, 2022.”

Roque, once considered a human rights lawyer, pointed out that the Philippines already pulled out of the court and the withdrawal took effect in March 2019.

But Center for International Law trustee Gilbert Andres, a lawyer, in an interview with ONE News’ “The Chiefs,” said that even with the country’s withdrawal from the ICC, the country still has a “residual obligation” under the Rome Statute.

Article 127 paragraph 2, of the Rome Statute states that the withdrawal of a state shall not affect cooperation with the court in criminal investigations and proceedings “in relation to which the withdrawing State had the duty to cooperate and which were commenced prior to the date on which the withdrawal became effective.”


But even if the Philippine government would continue to resist, Andres said “the ICC Office of the Prosecutor still has creative means to resort to so that it can have a good investigation to the international crimes committed within the Philippines.”

But it seemed that Bensouda had already taken into account that the Philippine government may potentially resist investigation.

In her statement, she said: “Aware of the complex operational challenges that will be faced by the Office if an investigation is authorized by the Pre-Trial Chamber, we have also been taking a number of measures to collect and preserve evidence, in anticipation of a possible investigation.”

Ruben Carranza, a lawyer and senior expert on programs at the International Center for Transitional Justice, noted this in the same interview. Referring to Bensouda, he pointed out: “There have already been steps taken to preserve evidence… that does not even require creativity.”

Carranza also noted that in her request, Bensouda cited publicly available documents. Statements that were redacted from the request may also refer to witness testimonies that are kept from the public for security reasons.

The ICC can, too, bring witnesses or specific individuals outside the country for interviews, he added.

Carranza acknowledged that there may be difficulty in accessing physical evidence such as bodies to be exhumed or bullet casings. While these may have corresponding documents, access to reports may still be blocked, he said.

But the legal expert pointed out that family members and witnesses who saw and heard the killings already had given statements. Carranza said: “While forensic physical evidence is important, eyewitness statements are just as important.”

Rights lawyer Krissy Conti, counsel for kin of some of the "war on drugs" victims, said earlier this week that they have been sending affidavits and testimonies to the Office of the Prosecutor when they file communications. They filed their fourth supplemental communication on Monday.


Human Rights Watch International Justice Program associate director Param-Preet Singh said the pre-trial chamber may return to the Office of the Prosecutor with a decision within three months.

Singh, in an interview on Rappler Talk, said the timeline may be shorter, or but proceedings can run longer too. But once the authority to investigate has been granted, Singh said: “It’s just an evidence game.”

She added that the Philippine government can keep sending signals to the ICC that it will not cooperate but this is “not new information or [a] new tactic.”

Roque had been citing the investigation into alleged crimes in Afghanistan, where the pre-trial chamber rejected the request due to parties being uncooperative, to press the claim that a probe would be pointless. 

This, however, had been overturned by the appeals chamber, Singh noted.

“Aside from that blip, for the most part, pre-trial chambers have confirmed because the threshold is pretty low and in essence, to check, to make sure the prosecution has… crossed the t’s and make sure her [Bensouda] request is in line with the terms of the statute provide those threshold match, they will open an investigation into the Philippines,” she added.

New prosecutor

With newly sworn-in ICC Prosecutor Karim Khan inheriting the mandate, rights groups are hoping he will continue what Bensouda has started.

The Free Legal Assistance Group, in a statement, said that the Office of the Prosecutor’s request gives hope to Filipinos “that someday, justice and accountability will triumph, our institutions and culture will flourish, and the truth will prevail.”

The lawyers’ group then appealed to Khan to continue Bensouda’s work and “for the ICC to allow the formal investigation.”

Conti, in an earlier press conference, said Khan is capable of handling the cases in the Philippines. She noted that Khan served as assistant secretary-general of the United Nations and previously litigated in international humanitarian law and international criminal law cases.

“So this is really his specialty and I think he will be in a great position as prosecutor of the ICC to appreciate evidence we already submitted to the court,” Conti added.

What to do now?

Carranza said that the Bensouda had admitted that the pandemic posed operational challenges to the ICC and limited its resources.

In her statement, Bensouda said she had discussed these matters with Khan. “As I stated many times before, the Court today stands at a crossroads in several concurrent situations, where the basis to proceed is legally and factually clear, but the operational means to do so are severely lacking,” she added.

Noting this, Carranza said this may mean that the investigation may take some time and might need resources that are not yet available to the ICC at present.

In the meantime, he called on human rights groups to exhaust all domestic remedies available to them.

He noted the there is a Crimes Against Humanity law in the Philippines, which has never been used except for ISIS fighters in Marawi City.

He added: “It’s important for Philippine human rights advocates to try to seek reparations for families of those killed. There’s a reparations law already in the Philippines but it only apply to the victims of Marcos’ dictatorship. It can very well be extended to victims of ‘drug war.’’

Caranza pointed out that there are steps that can be taken inside the country, and “Filipinos should not be dependent on a court situated outside the country for justice to happen.”





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