ICC probe of drug killings a ‘major step to justice’

Yes, a major step to justice. That’s how the self-organized survivors and families of those summarily killed in the Duterte government’s “war on drugs” and their pro-bono lawyers welcomed the big news from the International Criminal Court in The Hague this week.

The ICC’s Pre-Trial Chamber has authorized the Court’s prosecutor to begin an investigation of the extrajudicial killings committed in the anti-illegal drugs campaign as probable crimes against humanity.

The authorization was based on the request by former ICC prosecutor Fatou Bensouda who, last June 24, submitted a 57-page report on the preliminary examination initiated by her office in 2018. President Duterte rejected the examination, barred Bensouda from entering the country and unilaterally withdrew the Philippines’ membership in the ICC.

Covered by that examination were killings committed from July 1, 2016 to March 16, 2019. Also examined were drug-related killings in Davao City from Nov. 1, 2011 to June 30, 2016, when Duterte was the mayor.

“The chamber concludes that there is reasonable basis for the prosecutor to proceed with an investigation in the sense that the crime against humanity of murder appears to have been committed, and that potential case(s) arising from such investigation appears to fall within the (ICC) jurisdiction,” the authorization stated. It was signed by the Chamber’s Presiding Judge Peter Kovacs, along with Judges Reine Adelaide Sophie Alapini-Gansou and Monica Socorro Flores Liera.

Through their organization named Rise Up for Life and for Rights, survivors and families of EJK victims had submitted complaints to the ICC, aided by the National Union of People’s Lawyers (NUPL). Earlier, other submissions had been filed (including one by former senator Antonio Trillanes) with the ICC, the “court of last recourse” when the judicial system in a state-party fails to act satisfactorily on serious criminal cases.

In a joint statement, Rise Up and NUPL said: “The toll of the ‘war on drugs’ has been exceptionally heavier on the poor, as it has been in every disaster, natural and man-made. The ICC decision lends them the right to hope that justice will be served somehow, some day. We have to stand by them every step of the way.”

Llore Pasco of Rise Up, mother of two sons slain in police operations, cried out: “Duterte was announcing state policies and pushing state forces to kill people. As a result, many lost their lives. There was no due process and no respect for human rights. Duterte and his generals should be brought to account before the ICC.”

Commission on Human Rights Chairperson Chito Gascon viewed the ICC move as a “critical step towards truth and justice in this country that may help lead to ending impunity should these [investigations] eventually materialize to charges, trial and convictions.”

“While CHR has been conducting its own investigations on similar incidences,” he pointed out, “these are undertaken in the purview of our mandate under the 1987 Constitution and relevant laws with the hope and view that violators are held to account within our justice system.”

Gascon expressed readiness to assist the ICC prosecutor should the latter seek the CHR’s help, as he urged the government to provide all the necessary assistance and information the prosecutor might request.

As expected, two Malacanang factotums were in defensive mode.

“(President Duterte) will not cooperate since first of all, the Philippines has left the Rome Statute, so the ICC no longer has jurisdiction over the country,” presidential legal counsel Salvador Panelo said in a radio interview. “The government will not let any ICC member to collect information and evidence in the country, they will be banned entry.”

In Malacañang, presidential spokesman Harry Roque chortled that nothing would come of it: “Matutulog lang ‘yang kaso na yan, dahil in the absence of cooperation, lalong lalo na sa kapulisan, eh walang ebidensya na makakalap [ang ICC].”

They are both wrong, of course. The Supreme Court last March 16 unanimously ruled that Duterte cannot evade the ICC prosecutor’s investigation by invoking the country’s withdrawal from the court.

“Withdrawal from the Rome Statute [the treaty that created the ICC] does not discharge a state party from the obligations as a member,” says the SC ruling. “Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated.”

This means that all acts committed with regard to the drug war by President Duterte and other public officials up to March 17, 2019 (when the withdrawal took effect) were within the ICC jurisdiction as stated in Article 127(2) of the Rome Statute, the SC ruling pointed out. Thus, “whatever process was already initiated before the ICC obliges the state party to cooperate.”

That’s exactly what the Pre-Trial Chamber said: The alleged crimes to be investigated took place when the Philippines was still a signatory to the Rome Statute – from Nov. 1, 2011 until March 16, 2019. “The (ICC) retains jurisdiction with respect to alleged crimes that occurred in the territory of the Philippines while it was a state party.”

The Chamber’s decision declared that the “war on drugs” campaign “cannot be seen as a legitimate law enforcement operation, and the killings neither as legitimate nor as mere excesses in an otherwise legitimate operation.” Per the ICC’s standard, it added, the available materials (submitted by Bensouda) indicate that a “widespread and systematic attack against the civilian population took place pursuant to or in furtherance of a state policy.”

NUPL and Rise Up assured the ICC of their commitment to provide information and evidence that “will lead to a determination of the persons most responsible for these dastardly crimes against humanity.”

“We intend to bypass the Duterte government’s refusal to cooperate by supplying the Office of the [ICC] Prosecutor with original and authenticated evidence, documentary testimonial, even object evidence which will be necessary to build the strongest case possible,” NUPL and Rise Up affirmed.

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