ICC: Probe on PH drug war continues

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Metro Manila (CNN Philippines, December 6) — The International Criminal Court (ICC) prosecutor said the preliminary examination into alleged crimes against humanity committed during the Duterte administration's drug war would continue despite the Philippines' withdrawal from the Rome Statute.

"The Office is continuing its assessment of the information available in order to reach a determination on whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court," ICC Prosecutor Fatou Bensouda said in her annual report on preliminary examinations.

Since the first communication was filed in April 2017, the ICC Prosecutor's Office has received 52 communications in relation to the war on drugs.

Bensouda said her office would continue to engage with reliable sources and stakeholders relevant to the preliminary examination of the situation in the Philippines.

She added that any related crimes that would happen in the future would also be included in the her office's analysis and that it would continue to record allegations of crimes in the Philippines that may fall within the court's jurisdiction.

Bensouda also noted that the "UN Secretary General, UN bodies and experts, various States, international NGOs and national civil society representatives have expressed serious concern about the alleged extrajudicial killings and criticised statements by President [Rodrigo] Duterte which have been viewed as endorsing the killings and fostering an environment of impunity and violence."

The Philippines formally withdrew from the Rome Statute, the treaty which created the ICC, on March 17, 2018 through a letter to UN Secretary General António Guterres. Article 127 of the Rome Statute states that the withdrawal of a country from the treaty becomes effective a year after notifying the UN Secretary General.

This comes after Duterte announced that the Philippines is withdrawing from the ICC due to its "baseless, unprecedented and outrageous attacks," while it was undertaking a preliminary examination into accusations that he and members of his administration have committed crimes against humanity in the war on drugs.

Duterte has repeatedly stated that he would not submit to the jurisdiction of the ICC and has mocked Bensouda, who he has threatened with arrest if she comes to the Philippines.

However, Article 127 of the Rome Statute states that parties to the treaty cannot escape liabilities arising from actions while they were parties to it. It also says that parties to the treaty who have withdrawn should continue to cooperate with criminal investigations which commenced prior to their withdrawal.

Not a state party?

Presidential Spokesperson Salvador Panelo said Thursday evening that the ICC was free to proceed with the preliminary examination, but insisted that the Philippines "never became a State Party to the Rome Statute."

"Thus, we will treat this tribunal as nonexistent and its actions a futile exercise," said Panelo, who also serves as presidential legal counsel.

The Philippines signed the Rome Statute on December 28, 2000 and was concurred to by the Senate on August 30, 2011.

Despite the treaty effectively becoming law due to its ratification by the Senate, the Palace echoed Duterte, who had said the international agreement never came into force in the Philippines because it was not published in the Official Gazette or in a newspaper of general circulation.

"This omission violates not only Article 2 of the Civil Code, but more notably, Article III, Sections 1 and 7 of the 1987 Constitution which respectively guarantee the rights of the people to due process and to be informed on matters of national concern. Treaties, as well all know, cannot supplant our Constitution," Panelo said.

However, human rights advocacy group CenterLaw had said that publication is not a requirement to make a treaty binding upon the Philippines. It had also denied that Duterte is deprived of due process by the ICC prosecutor's preliminary examination.

A 2005 Supreme Court ruling, citing former Supreme Court Associate Justice Isagani Cruz, does not mention the publication of treaties as a requirement for treaties to come into force in the Philippines.

Executive Order No. 529, which provides guidelines for the negotiation in treaties and its ratification, says that international agreements become binding to the country once the Senate concurs and the ratification instrument is transmitted.

Minority senators are challenging Duterte's withdrawal from the ICC before the Supreme Court, arguing that since the Senate's concurrence is needed for the Philippines to enter into a treaty, its nod is also needed when the country leaves an international agreement.

The preliminary examination is the first in six stages towards a conviction. This is when the Office of the Prosecutor determines whether there is enough evidence, if there are genuine national proceedings and if opening an investigation would serve the interests of justice and of the victims.

The Philippine National Police said close to 5,000 drug suspects have been killed during the war on drugs, but human rights groups estimate the number to be higher.

Among the controversial deaths in the drug war is the killing of 17-year-old Kian delos Santos by police. Three Caloocan policemen have been convicted for his slay.

Former Presidential Spokesperson Harry Roque, an international law expert, said the conviction of the cops has rendered moot the complaints against Duterte before the ICC.

The ICC is established as a court of last resort and would only hear and try cases if courts in state parties are unwilling or unable to hear and try cases on alleged crimes against humanity.

The Hague-based tribunal has jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression committed by nationals of state parties to the Rome Statute. The penalty for any of these crimes is up to imprisonment for life and a fine or the forfeiture of assets.

Crimes against humanity include murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children – sexual slavery, torture, apartheid and deportation against any civilian population.

The international court does not have its own police force, hence, if it metes out a conviction, it would have to rely on local security forces to enforce the verdict.