ICC probe on ‘drug war’ must be pursued

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It was only a preliminary examination. It essentially focused on documented complaints and information received from various sources – including from families of victims – pertaining to alleged extrajudicial killings of civilians, carried out in pursuance of the Duterte administration’s “war on drugs” during its first nine months in office (July 1, 2016 to March 19, 2019).

But when submitted, in a 57-page report to the International Criminal Court’s Pre-Trial Chamber last June 14, outgoing ICC Prosecutor Fatou Bensouda came up with these preliminary findings:

• “These extrajudicial killings, perpetrated across the Philippines, appear to have been committed pursuant to an official state policy of the Philippine government. Police and other government officials planned, ordered and sometimes directly perpetrated EJKs. They paid police officers and vigilante bounties for EJKs.”

• The EJKs “do not represent anomalies or exceptions… but appear to be a defining characteristic of the national war on drugs, which has affected nearly every corner of the Philippines, spanning a number of years, and appears to implicate the highest levels of Philippine law enforcement and government.”

Bensouda averred she had “reasonable basis to believe” that the crime against humanity of murder “was committed as part of a widespread and systematic attack directed against a civilian population pursuant to or in furtherance of state policy.” For evidence of such state policy, she cited the “plethora of public statements made by Mr. Duterte and other Philippine government officials encouraging, supporting and, in certain instances, urging the public to kill suspected drug users and dealers.”

She formally requested for authority to her office to begin investigating Duterte’s war on drugs for possible crimes against humanity involving murder. She proposed to include in the investigation the pattern of drug-related EJKs observed in Davao City during Duterte’s tenure as mayor from Nov. 1, 2011 to 2016, noting that in that period, the Philippines had already ratified the Rome Statute of 2002, a treaty establishing the ICC.

However, in May 2018 Duterte ordered the withdrawal of the country’s ratification of the treaty, in effect withdrawing Philippine membership in the ICC. Apparently, he thought the move would get the country out of ICC jurisdiction. But Bensouda asserted the validity of her preliminary examination on EJKs that occurred before the withdrawal took effect one year later (May 2019).

Last June 15, Bensouda ended her nine-year term as the second ICC prosecutor. Her successor, Karim Khan from Britain, is a former United Nations assistant secretary-general who has led a special UN probe into the crimes of the Islamic State. After taking his oath of office, Khan said: “It is an awful testament to the horror of mankind that in this 21st century, as we send rovers to Mars… medieval crimes are being committed by modern people.” He vowed to “build upon the solid ground” left by Bensouda “but also to repair what is broken, to rejuvenate, to revive in the quest for greater efficiency and greater impact.”

In her farewell speech, Bensouda disclosed that the preliminary examination had reached “an advanced stage for over a year now.” Publicly announcing it was held off because her office had to complete “some concrete evidence preservation… to ensure the integrity of the evidence.” The preservation processes were completed only recently, she said.

How thorough Bensouda’s team had probably been in preparing the report can be gauged from what a seasoned jurist, retired Supreme Court senior associate justice Antonio T. Carpio, wrote about it.

“Prosecutor Bensouda’s submission [to the Pre-Trial Chamber] can be described as res ipsa loquitur – it speaks for itself as it contains copious footnotes citing numerous sources,” Carpio wrote in his Inquirer column last Thursday.

“The submission is an eye-opener for those unfamiliar with President Duterte’s war on drugs. For those who have followed the President’s war on drugs, the submission confirms their worst fears. Every Filipino must read this submission of Prosecutor Bensouda,” he added.

Against Carpio’s positive evaluation, Malacanang’s reaction to the submission consisted of remarks that are deprecatory (“legally erroneous”) and accusatory (“politically motivated”). At a press briefing, Duterte’s spokesperson Harry Roque said, “The President will never ever cooperate [with the ICC] until the end of his term on June 30 of 2022.” He claimed the ICC has no jurisdiction over crimes against humanity as attributed to Duterte’s war on drugs. He invoked the principle of complementarity that he said bars ICC formal investigation. Without explaining, he said such an investigation is not “in aid of substantial justice.”

After supposedly reading Bensouda’s full report, Roque questioned its use of media reports as sources of information. “Knowing that they were citing Rappler and ABS-CBN and Inquirer, we were somehow relieved because in law, all these newspaper accounts are mere hearsay,” he said.

In his commentary, Carpio effectively refuted Roque’s allegations, specifically the latter’s invoking of complementarity that he alleged bars formal ICC investigation. He explained that under the ICC’s complementarity rule, only when Philippine authorities are “unwilling or unable genuinely to carry out the investigation or prosecution” can the ICC investigate and prosecute the alleged crimes.

However, Carpio pointed out, “The problem is Philippine law and jurisprudence clearly contradict any invocation by Philippine authorities of the complementarity rule.” He cited three reasons:

First, it is a settled doctrine that the President, during his tenure of office, may not be sued in any civil or criminal case. Thus, Philippine authorities are “unable genuinely” to investigate or prosecute President Duterte during his incumbency;

Second, the President exercises “control” over all executive offices and agencies of the government, such that any act or decision by the investigation and prosecutory arms can be modified, reversed or stopped by the President;

Third, the powers of the Ombudsman to investigate or prosecute elected or appointed government officials do not extend to those who may be removed from office only by impeachment, the President foremost among them.

“Thus, Philippine authorities cannot raise the complementarity rule as a defense before the ICC,” Carpio concluded.

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Email: satur.ocampo@gmail.com