ICC finds basis for crimes against humanity in Duterte drug war

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Metro Manila (CNN Philippines, December 15) — The International Criminal Court's prosecutor is expected to decide by the first half of 2021 whether to seek a formal investigation into alleged extrajudicial killings in the Philippines. But as early as now, the chief prosecutor has already found "reasonable basis to believe" that crimes against humanity have been committed in the Duterte administration's bloody war on drugs.

The Office of ICC Prosecutor Fatou Bensouda on Tuesday (Philippine time) released its report on the preliminary examination on the Philippines, which was launched in February 2018. This prompted the Philippines to withdraw from the ICC, but that did not stop the initial probe.

The preliminary examination focused on the crimes committed when President Rodrigo Duterte took office in 2016 until March 2019 in the context of the drug war, particularly allegations that Duterte and senior law enforcers "actively promoted and encouraged" killing suspected drug users and dealers.

Aside from the killings, the prosecutor also looked into allegations some individuals were abused prior to being killed by state forces and other unidentified assailants.

Bensouda's office said it found basis that murder, torture, and other crimes against humanity were present in the government's anti-drug program during the first three years of Duterte's presidency.

"The Office is satisfied that information available provides a reasonable basis to believe that the crimes against humanity of murder, torture, and the infliction of serious physical injury and mental harm as other inhumane acts were committed on the territory of the Philippines between at least 1 July 2016 and 16 March 2019, in connection to the WoD (war on drugs) campaign launched throughout the country," the report said.

It said it anticipates reaching a decision by the first half of 2021 whether to seek authorization from the court's pre-trial chamber to conduct a formal investigation into the situation in the Philippines.

The office said it finalized its subject-matter analysis, collected and analyzed open-source information on relevant national proceedings conducted by Philippine authorities, including criminal charges against the police — specifying the conviction of three officers in the murder of Kian delos Santos in 2018. But Bensouda pointed out there was only a "limited number of investigations and prosecutions."

Her office is also closely monitoring developments on the inter-agency panel tasked by Justice Secretary Menardo Guevarra to reinvestigate deaths in drug war operations.

Government data shows 5,903 suspects have been killed in anti-drug operations, but local and international human rights groups allege thousands more may have died in extrajudicial killings under the Duterte administration.

The ICC investigates cases of genocide, war crimes, crimes against humanity, and crimes of aggression.

Some experts previously said if the ICC investigation pushes through, Duterte could be slapped with a warrant of arrest once he steps down in 2022 for all the crimes committed during his flagship anti-drug program. Duterte on December 3 said he was ready to face possible cases over his bloody war on drugs, confident he can defend himself. He continued to urge the police to remain dauntless, telling them to kill suspects when their lives are in danger during operations.

Duterte administration unfazed

Duterte's spokesman, Harry Roque, insisted the ICC no longer has jurisdiction over matters in the country after the Philippines' withdrawal from the Rome Statute took effect in March 17, 2019. Roque said the ICC should not waste its resources on probes where both parties are not cooperating.

"Hindi natin kinikilala ang hurisdiksyon ng ICC so kampante kami... Mayroon nang desisyon ang ICC na hindi sasayangin ng ICC ang pera ng opisyales sa kasong hindi uusad dahil walang kooperasyon," he said in a media briefing.

[Translation: We do not recognize ICC jurisdiction over the Philippines so we are not worried. The ICC previously issued a decision that it will not waste money on investigations that will not prosper due to lack of cooperation.]

The ICC retains its jurisdiction over crimes committed during the time the state was party to the statute. It may exercise this jurisdiction even after the withdrawal became effective. 

National Union of Peoples' Lawyers said the report is a big development that has far reaching repercussions for the Duterte administration. It urged the Philippine government to take the initial findings seriously.

"Finally, rays of hope have peeked out of the pitch dark clouds of impunity. We hope real and effective redress can be achieved in time," Secretary General Edre Olalia said in a statement.

Senator Francis Pangilinan also welcomed the report, but questioned why it took the ICC four years to release its findings.

"Perhaps if they acted sooner, thousands of lives could have been saved," he said.