Softening the impact of ICC probe on EJKs?

Last Thursday this newspaper ran this front-page headline: “Duterte vows accountability in drug war.”

The headline value was not in the statement itself, but in its having been made in a video-recorded speech delivered before the 76th session of the United Nations General Assembly last Wednesday.

The STAR lead story pointed out that the President’s speech came days after the International Criminal Court (ICC) Pre-Trial Chamber authorized an investigation into alleged crimes against humanity of murder committed in the course of Duterte’s “war on drugs.”

Last Monday, former ICC Judge Raul Pangalangan said in a television interview that ICC proceedings would now move towards determining whether charges may be filed against public officials named as respondents in the complaints submitted to the court’s prosecution office. The respondents are led by Duterte.

The President’s exact statement said: “I have instructed the Department of Justice and the Philippine National Police to review the conduct of our campaign against illegal drugs. Those found to have acted beyond bounds during [police] operations shall be made accountable before our laws.”

Following the delivery of the speech, Justice Secretary Menardo Guevarra remarked that Duterte had just made “a clear directive to pursue with greater vigor the ongoing review of drug death cases and to commence legal actions if found warranted.”

“We will sit down with the PNP chief in the next few days to discuss our report as well as the President’s directive given at the UN General Assembly,” Guevarra said.

“Based on what he said, the President wants the DOJ to take further action, in collaboration with the PNP,” he added.

The report pertains to the findings in a review of 52 drug-war cases, submitted by the PNP to the DOJ-led inter-agency panel, that resulted in deaths and involved law enforcers.

In another newspaper report, Guevarra said Duterte might discuss in his speech the review panel’s recommendations, which he said had been submitted to the President last week. He promised reporters that after conferring with PNP chief Guillermo Eleazar he would release the findings to the public.

It could be surmised that Duterte didn’t touch on the panel’s recommendations because he either had not yet read them, or had found them to be inconsequential.

The 52 cases reviewed form but a minuscule share of the 5,655 extrajudicial killings that, on July 2, 2020, Guevarra reported to the UN Human Rights Council’s 44th session in Geneva, the panel had been quietly reviewing since February that year.

How come the PNP submitted only 52 cases to the DOJ?

In late May, PNP chief Eleazar announced he had decided to turn over to the DOJ the case records of 61 deaths resulting from police operations in the drug war. The 61 cases, among the 6,536 recorded from July 2016 to April 2021, had been investigated by the PNP Internal Affairs Service and were “volunteered for further review by the DOJ,” Eleazar then said. Guevarra welcomed his decision as a “very significant milestone in the government’s efforts to exact accountability.” Moreover, Eleazar offered to submit other information “as long as the DOJ [requests such]” – including cases in which policemen were cleared of wrongdoing because the victims’ relatives supposedly failed to cooperate.

However, in June, Duterte said in his televised public address that the government cannot release all the case records because of “national security” considerations. Not only did his remark dampen both Eleazar’s and Guevarra’s exuberance; it also ran counter to a Supreme Court ruling, issued on April 3, 2018, in two petitions urging the SC to direct the PNP to give the petitioners access to the case files of persons killed in the drug-war operations.

The ruling stated: “There is no showing that the country’s territorial integrity, national sovereignty, independence or foreign relations will be compromised or prejudiced by the release of these information and documents to this Court or even to the public.

“The information and documents do not involve rebellion, invasion, terrorism, espionage, infringement of our sovereignty or sovereign rights by foreign powers, or any military, diplomatic or state secret involving national security.”

Yet Duterte appears to have gotten away with defying the SC ruling, which the ICC prosecutor may have taken note of in the preliminary examination conducted on the drug war in that period.

In his UNGA speech, Duterte appeared to have aimed at softening the impact on him of the ICC Pre-Trial Chamber decision. He didn’t mention the ICC, but appears to have made an oblique reference to it, when he said, “The imposition of one’s will over another – no matter how noble the intent – has never worked in the past. And it never will in the future.”

Instead, he told the UN assembly that his government has “recently finalized with the United Nations a Joint Program on Human Rights,” which he added “is a model for constructive engagement between a sovereign Member-State and the UN.”

Nonetheless, the process triggered by the ICC authorization of full investigation on the “war on drugs” killings and other crimes may have quietly begun.

According to former ICC Judge Pangalanan, the chamber would now look into evidence against specific persons tagged in the case. These can be in the form of statements by individuals. In fact, he disclosed, “in a very recent case [handled] by the court, even statements from social media” were considered. This “was quite a step,” he remarked.

The ICC need not send any investigator to the Philippines, Pangalanan emphasized, as it can resort to two options. It may opt to fly witnesses to The Hague (where the ICC is based), or take down testimonies via online interviews.

“Virtual access by online mechanisms to receive evidence is allowed by the court – we have done that,” he said. “We have done video-link testimony from the home countries of the witnesses where it was safer for them to do it.” That’s an incentive for witnesses fearful of coming out.

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