Conviction of Kian's killers won't weaken ICC examination of drug war – experts

MANILA, Philippines (UPDATED) – A conviction of policemen in one murder case under the administration’s war on drugs will not weaken the ongoing preliminary examinations by the International Criminal Court (ICC) into the high number of killings here, 3 international law experts told Rappler.

ICC loses jurisdiction of the high crimes when it determines that Philippine courts are willing and able to investigate and prosecute perpetrators.

After the conviction for murder of 3 local Caloocan cops for the killing of 17-year-old Kian delos Santos, Malacañang has come out to say the verdict just proves “this country has a robust judicial system.”

“The conviction of perpetrators in one case is not adequate to show this. There has to be more convictions and the killings have to stop,” said Filipino lawyer Emerlynne Gil of the International Commission of Jurists (ICJ).

This is because it’s just one among the 20,000 estimated killings related to the drug war since 2016. Of this number, 5,000 are said to be deaths that resulted from legitimate police operations. 

From July 2016 to August 2018, out of the 20,000 estimated deaths, and excluding numbers from Manila, Quezon City, and Taguig, the Department of Justice (DOJ) has investigated only 76 cases of murder and homicide nationwide related to the drug war. The DOJ said it is still gathering data from Manila, Quezon City, and Taguig. 

Of the 76 investigations, 38 were dismissed, 5 are pending before prosecutors, and 33 have been filed in court. 

“The preliminary examination that is currently being conducted by the Prosecutor of the ICC looks at whether the government is undertaking prompt, independent, and effective investigations into allegations of extrajudicial killings,” Gil said.

"Our government must show this is not a token prosecution," added Romel Bagares, Philippine Coalition for the ICC (PCICC) lawyer, who also teaches international law at the Lyceum University.

According to Dr Nicole de Silva of the political science department of Concordia University in Canada, where she focuses on international institutions on human rights, the ICC actually encourages prosecution in the local courts.

"But if national proceedings don’t measure up to the Rome Statute's standards, the Office of the Prosecutor may choose to prosecute individuals at the ICC (and the ICC always prosecutes those “most responsible” for the crimes)," De Silva told Rappler.

She added, "If they determine that the Philippine courts’ processes were inadequate, then the ICC would have jurisdiction."

Targeting the big fish

Complainants allege the killings have amounted to crimes against humanity, with President Rodrigo Duterte impleaded, along with other members of his Cabinet and generals of the police force.

But the preliminary examinations do not target anyone specific as Prosecutor Fatou Bensouda said she is looking at the “situation” in the Philippines.

“The ICC Office of the Prosecutor (OTP), at the stage of the examinations, looks at a universe of potential cases, or the 'situation.' There are no suspects and individualization of cases,” said Bagares.

Bagares noted that the ICC was envisioned to prosecute the big fish, and that is why “it doesn’t prosecute in mass numbers,” meaning, it is not concerned with low-level perpetrators like the local cops in the Delos Santos killing.

ICC prosecutions target the brains behind systematic or large-scale killings -- not the foot soldiers,” Bagares said. 

Bagares added: “We are not discounting (the conviction in Delos Santos case), it’s a good decision to have someone convicted, but if you’re going to compare that to the universe of cases, that is a drop in the bucket.”

A system of abuse?

If one conviction cannot prove genuine justice for the human rights advocates, the Philippine National Police (PNP) said that in the same way, one conviction also does not prove systemic abuse. 

At the very least, Bagares said, it proved that extrajudicial killings (EJK) exist in the Philippines.

“The decison says he was killed for no reason. This death happened in the course of a drug operation, and the court said that the police should not have killed. It involves excessive use of force, it involves killings without due process, it encompasses assassinations,” said Bagares.

Another important decision in the war on drugs is the decision of the Manila Regional Trial Court (RTC) Branch 40 acquitting someone linked to drugs.

Francisco Maneja was shot by cops in an anti-drug operation in September 2016, with cops saying he was the target of a buy-bust operation. They also claimed he fired his gun first. Maneja survived by playing dead and waiting for more people to arrive at the crime scene before asking for help.

In the decision of Manila RTC Branch 40, Maneja was found not guilty of drug violations, because the court did not believe that the facts of the police story matched reality and evidence.

“This Court is not convinced that there was a legitimate buy-bust operation which gave rise to the shooting incident,” said the court.

Significance of Maneja case

According to human rights lawyer Chel Diokno, who’s running for senator under the opposition slate and who is a petitioner in the Supreme Court case seeking to declare the drug war unconstitutional, the Maneja decision was the first time a Philippine court belied the usual police narrative of "nanlaban" or suspects fighting back.

Just like the conviction in the Delos Santos case, Diokno also said he does not believe that the Maneja case takes away the jurisdiction of the ICC.

Kung may hahabulin ang ICC, ang may pinakamabigat na responsibilidad ang kukunin (If the ICC is going to run after someone, it would be the person with the most accountability),” Diokno said.

Diokno said that the fundamental difference of an ICC investigation from that of local courts is presidential immunity. Under the Philippine Constitution, Duterte is immune from suit. The ICC, however, does not take into account presidential immunity as it has prosecuted state leaders before.

“The only time na makikialam ang ICC ay kung hindi talaga kayang habulin ang accused sa kanyang bansa. Hindi puwedeng kasuhan ang presidente sa atin, so that’s the argument that should be invoked before the ICC,” Diokno said. 

(The only time that the ICC can intervene is when the accused could not be prosecuted in his own country. We cannot charge our president here so that’s the argument that should be invoked before the ICC.)

The ICC’s non-recognition of presidential immunity is one of Duterte’s grounds for the unilateral withdrawal of the Philippines from the Rome Statute, the charter that created the ICC.

Petitions seeking to invalidate Duterte’s withdrawal are still pending before the Supreme Court. – Rappler.com

READ related stories:

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

image