Duterte’s “bloody” drug war: ICC reopens probe

CEBU, Philippines — Unsatisfied with the Philippine government’s ongoing investigations into the alleged crimes against humanity in the Duterte administration’s drug war, the International Criminal Court (ICC) has granted its prosecutors’ request to resume its own probe.

In a statement released on Thursday, the ICC Pre-Trial Chamber (PTC) I concluded that the various domestic initiatives and proceedings “do not amount to tangible, concrete and progressive investigative steps in a way that would sufficiently mirror the Court’s investigation.”

“Today, 26 January 2023, Pre-Trial Chamber I of the International Criminal Court (“ICC” or “Court”) granted the Prosecutor’s request to resume investigation into the Situation of the Republic of the Philippines (“the Philippines”),” the ICC statement read.

“Following a careful analysis of the materials provided by the Philippines, the Chamber is not satisfied that the Philippines is undertaking relevant investigations that would warrant a deferral of the Court’s investigations on the basis of the complementarity principle,” it added.

While the ICC has authorized the resumption of its prosecutors’ probe, the PTC stressed that the decision does not bar the Philippine government from providing materials in the future for the ICC probe to determine the inadmissibility of the investigation or of any actual case when they are needed.

An ICC pre-trial chamber earlier approved the inquiry into drug war complaints, saying the crime against humanity of murder “appears to have been committed” and that potential cases arising from the probe appear to fall within the court’s jurisdiction. However, the probe was suspended in November 2021 upon the request of the Duterte government.

Last September, ICC prosecutors led by Karim Khan prodded the ICC pre-trial chamber (PTC) to order the resumption of its probe of the drug war, citing several areas where the Marcos administration fell short in justifying its deferral.

The Office of the Solicitor General (OSG) submitted last Sept. 8 its response to the PTC’s request for comment on why the investigation should not be resumed, which is hinged on three arguments: 1) the ICC’s lack of jurisdiction over the Philippines, 2) the drug war’s inadmissibility on account of the Rome Statute’s Article 17 and 3) the complementarity principle in international law.

Locking horns with the government’s top litigators, the ICC prosecutors said these arguments are not backed by strong evidence that could boost the ICC’s confidence that the Philippines can resolve the alleged crimes against humanity on its own.

For one, Khan wrote that the government and its investigating agencies failed to demonstrate in its Sept. 8 submission “past or ongoing national proceedings that could match” the looming ICC investigation.

This includes, apart from the Philippine National Police, the probes of the Administrative Order 35 task force, chaired by the Justice Secretary. AO 35 task force is an inter-agency committee that serves as the government’s institutional machinery to resolve unsolved cases of political violence, whether through EJKs, enforced disappearances, torture and other human rights violations.

In its submission to the PTC, the Marcos administration––represented by the OSG––maintained the absence of the ICC’s jurisdiction over the Philippines and that the drug war killings on July 2016 to March 2019, including in the Davao region between 2011 and 2016, when former President Rodrigo Duterte was mayor of Davao City, do not constitute "crimes against humanity."

The OSG’s challenge to the ICC’s jurisdiction, placed in its arguments that the alleged killings were not an attack on the civilian population thereby not making it a “crime against humanity” and that it already withdrew its membership from the ICC, were also backed with insufficient evidence.

Khan said the government failed to present concrete evidence that could question the previous findings of the PTC that crimes against humanity were indeed committed.

This failure, the prosecutors explained, renders the argument weak against the PTC findings that were backed by evidence, including statements of former President Duterte and other government officials, clear links between the government’s anti-drug campaign and its state policy, the incentivization of killings and the failure of national authorities to “to take meaningful steps to investigate or prosecute the killings.”

While the Philippines was within its rights to question the ICC’s jurisdiction, the prosecutors said the Rome Statute’s Article 19 provides no authority for States in question “to challenge jurisdiction before there is a case before the Court,” countering the withdrawal argument of the OSG.

In 2018, then-President Duterte withdrew the Philippines from the Rome Statute, the treaty that formed the ICC, after the ICC announced that it would conduct a preliminary examination on his drug crackdown. President Marcos earlier decided to stay out of the ICC.

While Khan has made the petition to resume the ICC probe last year, the Marcos administration opted to sit out the counterarguments of the ICC prosecutors against the Philippines’ attempt to stop the investigation into the drug war killings, noting how there was already nothing the government can do to change Khan’s mind about investigating the Philippine situation.

Solicitor General Menardo Guevarra, who was Duterte’s Justice secretary, now representing the Marcos administration, said the government has yet to receive a copy of the resolution of the ICC, but stressed that “it is our intention to exhaust our legal remedies, more particularly elevating the matter to the ICC appeals chamber.”

“We wish to emphasize that our own domestic investigative and judicial processes should take precedence, and we can show that despite structural and resource limitations in our legal system, it is still a well-functioning system that yields positive results in its own time,” he added.

Appeal from minority

Minority lawmakers appealed to the Marcos administration to cooperate with the ICC and rejoin the Hague-based tribunal as it reopened its investigation into the Duterte administration’s bloody "war on drugs".

“Let us cooperate as we are a responsible member of the world community of nations,” Senate Minority Leader Aquilino Pimentel III said in a text message as he warned that the Philippines might suffer “reputational damage” if it does not participate in the ICC probe.

Sen. Risa Hontiveros said in a statement that she hopes that all government agencies involved would cooperate in the investigation “so we may give justice and peace of mind to all of the victims.”

Hontiveros added that it is necessary for President Marcos Jr., who has actively engaged with the international community, to express cooperation with the ICC investigation and rejoin the tribunal.

“This increased international participation also makes it only appropriate for the Philippine government to rejoin as a state party to the Rome Statute as soon as possible,” Hontiveros said, referring to the treaty that created the ICC.

In a separate statement, Rep. France Castro (ACT Teachers party-list), said it is best that Marcos decides to bring back the Philippines into the ICC.

“It is imperative that those responsible for these crimes are held accountable for their actions and it would be best that Pres. Marcos Jr. return to the ICC,” Castro said.

But Marcos has so far rejected suggestions to return to the ICC. His administration intends to appeal the tribunal’s decision to reopen its investigation.

Hope for justice revived

Lawyers for families of "war on drugs" victims welcomed the ICC decision.

“Families of victims of extra-judicial killings (EJK) in the Philippines have long waited for justice. We started the process of filing a case of Crimes Against Humanity against President Rodrigo Duterte in 2018. However, we are happy to hear from the pre-trial chamber of the ICC that they have formally reopened their investigation into the war on drugs,” the statement from the National Union of People’s Lawyers (NUPL) on Friday read.

NUPL members Neri Colmenares and Kristina Conti, counsels of families of victims of extra-judicial killings in the ICC case, signed the statement.

Colmenares added that while a resolution is long overdue, “at least (former president Rodrigo Duterte) and his subordinates cannot claim that they were not accorded due process.”

He said the reopening of the case revived the hope for justice of the families of the victims.

Duterte’s controversial crackdown on drugs has resulted in the arrest of over 300,000 drug suspects since June 2016.

Latest government data say there have been about 6,235 drug suspects killed in reported shootouts with police, but activists and human rights bodies believe thousands more have been killed execution-style by unidentified gunmen. (FREEMAN)