ICC prober: Duterte ‘encouraged’ drug war crimes

MANILA, Philippines — Former president Rodrigo Duterte and other top government officials appear to have encouraged and condoned crimes related to the previous administration’s so-called war against illegal drugs, according to the prosecutor of the International Criminal Court (ICC).

In a court filing dated April 4 but released only on Tuesday night, ICC prosecutor Karim Khan said the alleged crimes, including the killings, are not of “marginal gravity” as claimed by the Philippine government.

“In the present situation, the available information demonstrates that at least more than 5,000 and possibly as many as 30,000 civilians (including children) have been killed by police or by ‘unidentified’ perpetrators apparently acting in coordination with police,” read the 59-page response filed before the ICC Appeals Chamber.

“In many instances, the police allegedly staged self-defense scenarios, planted evidence or otherwise obstructed justice in an effort to justify the premeditated and deliberate murder of civilians,” it added.

Beyond the alleged killings, Khan said that the ICC Pre-Trial Chamber also authorized the investigation of other crimes that fall within the jurisdiction of the court.

The filing said that “available information indicates that torture, other inhumane acts and other crimes were also committed in connection with the ‘war on drugs’ campaign.”

“Nothing about these crimes, committed in large part by law enforcement personnel entrusted with protecting citizens from violence, suggests that the potential cases before the Court are of marginal gravity,” it read.

“To the contrary, they are extremely serious and appear to have been at the very least encouraged and condoned by high-level government officials, up to and including the former president,” added the prosecutor, referring to Duterte, whose administration was marred by thousands of killings, including during police operations conducted in support of his campaign against illegal drugs.

Khan’s court filing was in response to the Philippine government’s appeal filed before the ICC Appeals Court, which challenged an earlier decision that allowed the prosecutor to resume its investigation into the Philippine situation.

In the 59-page response, the prosecutor asked the appeals chamber to dismiss all four grounds cited by the Philippines, including the ICC’s supposed lack of jurisdiction over the alleged crimes.

“In the Philippines situation, the Prosecution was authorized to investigate Rome Statute crimes allegedly committed in the Philippines from 1 November 2011 until 16 March 2019 – that is, when the Philippines was a State Party,” read the court filing.

“That the Philippines was not a State Party when the investigation was opened (on 15 September 2021) is immaterial and does not deprive the Court of jurisdiction over crimes allegedly committed during the temporal scope of the investigation,” it added.

In 2018, the Duterte administration initiated the withdrawal from the Rome Statute, the treaty that established the ICC, after former prosecutor Fatou Bensouda announced the start of a preliminary examination into the drug war.

Under the statute, the international court retains jurisdiction over alleged crimes committed while the country was a state party.

Aside from the drug war killings, the investigation also covers the killings in Davao area – alleged by the so-called Davao death squad – between Nov. 1, 2011 to June 30, 2016 when Duterte was either the mayor or vice mayor of Davao City.

The investigation was suspended in November 2021 following an official request from the Philippine government.

On June 24, 2022, Khan asked the ICC judges to authorize the resumption of the investigation, noting that the “deferral requested by the Philippines is not warranted.”

It was granted on Jan. 26, prompting the Marcos administration to file an appeal before the ICC Appeals Chamber.

Last March 27, the Appeals Chamber denied the Philippine government’s request for it to suspend the investigation while the appeal is pending.

Leave to reply

The Office of the Solicitor General (OSG) has meanwhile asked the ICC appeals chamber for leave to reply to prosecutor Khan’s latest response to its appeal brief against the resumption of the drug war probe.

In its request for leave to reply dated April 11, government lawyers led by Solicitor General Menardo Guevarra said the Philippine government “proposes to file a focused reply at a date to be determined by the Appeals Chamber.”

The OSG representing the Philippine government seeks to respond to five issues raised by the ICC prosecutor in the latter’s response to the Philippine government’s appeal.

The OSG also claimed that the Philippines throughout the proceedings “has not been afforded the same opportunities made available to other States at either the article 15 or article 18 stage.”

“As a result, the material and submissions it has provided have often been overlooked or misrepresented despite the fact that this litigation goes towards preserving its sovereignty rights,” the OSG said in its request.

“The issues identified would provide necessary clarification of the legal and factual arguments put forward by the Prosecution and would allow for the proper adjudication of each of the four grounds of appeal,” it added. – Marc Jayson Cayabyab