Int’l Criminal Court takes 1st step in probe into Duterte drug war

Lian Buan, Jodesz Gavilan

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Int’l Criminal Court takes 1st step in probe into Duterte drug war
(UPDATED) The Office of the Prosecutor starts a 'preliminary examination' to determine whether there is sufficient evidence to establish that the case falls under the jurisdiction of the International Criminal Court

MANILA, Philippines (UPDATED) – The International Criminal Court (ICC) is moving on the complaint filed against President Rodrigo Duterte in connection with the high number of killings under his violent war on drugs.

The ICC is starting “preliminary examinations” to determine whether there is sufficient evidence to establish that the case falls under its jurisdiction.

Malacañang confirmed this on Thursday, February 8.

Presidential Spokesperson Harry Roque made the announcement in a press briefing on Thursday morning, and said that Duterte welcomed the move. 

“The President and I met about this extensively for two hours last night. The President welcomes the preliminary examination because he is sick and tired of being accused of the commission of crimes against humanity,” Roque said.

The Palace official said that if the complaint would prosper, Duterte would be willing to face the ICC.

“If need be, he will argue his case personally and face the ICC,” Roque said, but later added that if this happened, Duterte would put the prosecutor on the stand and question him as to what prompted him to proceed with the case.

The preliminary examination are the first step in the ICC’s prosecution process. The ICC is the world’s first treaty-based permanent international criminal court that aims to end impunity. It investigates serious crimes including genocide, crimes against humanity, war crimes, and crimes of aggression.

The Office of the Prosecutor will conduct a preliminary examination to establish whether there are “genuine national proceedings” being conducted under the Philippine justice system. Due to complementarity, the ICC can only investigate if it sees that the Philippines does not or is “unwilling or unable to do so genuinely.” (READ: What challenges will complaint vs Duterte face before ICC?)

In August 2017, the Office of the Ombudsman dropped the President from witness Edgar Matobato’s complaint against the so-called Davao Death Squad (DDS) which has been linked to the killings in Davao City, when the Ombudsman proceeded to conduct its preliminary investigation.

If the ICC prosecutor determines they have jurisdiction over the case, they will proceed to the actual investigation phase.

No victory yet

Roque is one of the few Asians qualified to serve as defense counsel before the ICC. He said that the immunity granted to Duterte cannot be taken to mean that he cannot be prosecuted in the Philippines.

“Immunity subsists only during their tenure in office. As we have shown the world, two of our past presidents went to jail immediately after their terms of office. I refer to that to show there is no unwillingness in the Philippines because of a President can be prosecuted for any acts committed after his term of office,” Roque said.

Roque said that the deaths in the drug war do not constitute ‘crimes against humanity’ because “the ongoing war on drugs is an exercise of the police power in dealing with the problem of drug trafficking.”

The Palace official clarified that the critics of the administration could not claim “victory” yet since a preliminary examination was only the first step in a long process.

“We view this decision of the prosecutor as a waste of the court’s time and resources,” Roque said, adding that complaints against the drug war can be handled by local courts.

As a signatory to the Rome Statute, the Philippines falls under the jurisdiction of the ICC which defines crimes against humanity as “serious violations committed as part of a large-scale attack against any civilian population.” (READ: Things to know about Duterte’s pet peeve ICC)

Data from the government show that at least 3,987 individuals have been killed in the police’s anti-drug operations. The number of those killed vigilante-style is still highly contested – with groups such as the Philippine Alliance of Human Rights Advocates (PAHRA) estimating the figure could be more than 12,000. (READ: HRW calls for independent probe to ‘clarify’ PH drug war toll)

Communications filed

The Office of the Prosecutor is acting on two communications filed by Filipino lawyer Jude Sabio, and Senator Antonio Trillanes IV and Representative Gary Alejano in 2017. 

In a 78-page complaint submitted before the international court on April 24, 2017, Sabio requested the pre-trial chamber of the ICC to “commit President Rodrigo Duterte and his senior government officials to the Trial Chamber for trial and that the Trial Chamber in turn, after trial, convict them and sentence them to corresponding prison sentence or life imprisonment.” 

Citing the number of people allegedly killed by the DDS in Davao City and in his war on drugs since becoming president in June 2016, Sabio said that Duterte has been undertaking murder “repeatedly, unchangingly, and continuously” in the Philippines. (READ: The Impunity Series)

Meanwhile, Trillanes and Alejano’s supplemental communication filed on June 5, 2017 urged ICC Prosecutor Fatou Bensouda to conduct a preliminary examination “to provide a glimmer of hope for the thousands of victims that Duterte’s impunity would soon end.”

Their 45-page document also highlighted the various pronouncements of Duterte regarding the killings of criminals, specifically drug addicts. 

“This ‘shoot to kill’ order to drug suspects has become the centerpiece of the administration’s anti-drug campaign and clearly a national policy of President Duterte,” they wrote. 

READ Rappler’s explainers:
Yes, Int’l Criminal Court can prosecute Duterte for killing spree
Police, military officials liable for Duterte’s illegal kill orders

Leave ICC? 

Prior to the filing of communications in 2017, the administration had signaled its opposition to any ICC-led probe.

Duterte first threatened the Philippines would withdraw from the ICC after the ICC itself declared, in October 2016, that it is “closely following” the war on drugs.  

In December 2017, Presidential Spokesman Harry Roque, speaking in front of state parties to the ICC, said the country will “reassess” its commitment to it if the court violates the principle of complementarity, adding that it should be a “court of last resort.” 

The Philippine government now has no choice but to cooperate, as withdrawing from the roster of countries that the ICC has jurisdiction over will no longer affect existing investigations or proceedings, as stated in Article 127 of the Rome Statute. 

The statute indicates that withdrawal of any state party from the ICC will only take effect a year after the secretary-general of the United Nations is notified through a letter. Criminal investigations and proceedings will still go through as long as they commence prior to the date on which the withdrawal became effective.

But the start of an investigation is just the beginning of a process that could take years, Harvard Law professor and former ICC investigation and prosecution coordinator Alex Whiting previously told Rappler. (READ: What challenges will complaint vs Duterte face before ICC?)

“Sometimes it is clear very quickly, sometimes it takes longer,” he said. “[But] the ICC will in time commence an investigation, and there is a significant possibility that state actors will be charged and all of this will take time, but culpable state officials face a genuine risk that they will be held accountable in the future.” – With a report from Pia Ranada/

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.
Natsu Ando


Jodesz Gavilan

Jodesz Gavilan is a writer and researcher for Rappler and its investigative arm, Newsbreak. She covers human rights and impunity beats, producing in-depth and investigative reports particularly on the quest for justice of victims of former president Rodrigo Duterte’s war on drugs and war on dissent.