A day before International Criminal Court (ICC) Prosecutor Fatou Bensouda retires, a group of relatives of those killed in the bloody drug war made a last-minute plea that she request the judges to open an investigation and issue an arrest warrant against President Rodrigo Duterte.

In its fourth communication sent to the Office of the Prosecutor on Monday, June 14, the group Rise Up said: “[We] stress on the urgent need to open an investigation into crimes against humanity in the Philippines, and for the Court thereafter to issue a warrant of arrest against President Rodrigo Duterte and hold him while trial is ongoing.”

Bensouda will retire on Tuesday, June 15, and under the Rome Statute, she has to request authorization from the ICC’s pre-trial chamber (PTC) to open the investigation where summons and arrest orders can be issued.

Article 57 of the Rome Statute also says the PTC can issue the orders and warrants at the request of the prosecutor, which Rise Up is urging Bensouda to do before she leaves.

The ongoing process now is a preliminary examination that does not identify a respondent, whether that’s Duterte or anyone else. It is an inquiry into what is called a “situation” of the Philippines.

But last December 2020, Bensouda released a report saying the OTP has found “reasonable basis” to believe that crimes against humanity were committed in Duterte’s war on drugs.

Doubts on ICC’s effectiveness

The ICC has been criticized that its processes are ineffective, since some cases take too long, and the lack of State cooperation sometimes makes their investigations almost futile.

The ICC has been working on this, with experts noting this period is a very decisive moment for the Court to prove its relevance to global justice.

Progressive lawyer Neri Colmenares of the National Union of Peoples’ Laywers (NUPL), Rise Up’s counsel on record in the communications, acknowledged that Duterte in power can mean a total lack of cooperation from government agencies.

Colmenares said opening an investigation “shouldn’t be too hard” on Bensouda and the ICC because it’s not yet a verdict of guilt.

Colmenares is banking on hope that “there will be no President Duterte in 2022.” Duterte’s daughter, Davao City Mayor Sara Duterte-Carpio, is being pushed by many among his President’s allies to seek the presidency.

“We hope that the next president will cooperate with the ICC and make sure that the families of the victims get the justice they have long searched for. We are hopeful that the next president will make sure that Duterte is held accountable for his crimes,” said Colmenares.

Bensouda has promised that the next move will be announced by the end of June, but what she does or does not do, will still be carried over to the term of her successor, British counsel Karim Khan, who assumes office Wednesday, June 16.

Khan is familiar with the Philippine situation, having visited the country in 2018.

The Philipines remains a non-member of the ICC, after the Supreme Court junked petitions questioning the legality of Duterte’s unilateral withdrawal. Asked about the decision’s impact on the drug war, Supreme Court Associate Justice Marvic Leonen said the High Tribunal “tries to avoid getting into political issues such as, for example, the drug war in general.”

The DOJ drug war review

On Sunday, June 13, the Department of Foreign Affairs (DFA) uploaded a video of Justice Secretary Menardo Guevarra giving updates to the United Nations joint program on human rights. He again touted the “significant progress” of the Department of Justice (DOJ) drug war review.

Rise Up called this review in their communication to the OTP “neither comprehensive nor transparent.”

Guevarra was referring to 52 cases forwarded to the DOJ panel by the Philippine police where their internal investigators have established administrative liabilities on the part of the policemen.

Fifty-two out of 7,884 people killed in police operations as of August 2020 “is a drop in the bucket,” said Rise Up lawyer Kristina Conti.

“It comes too late, it’s Year 4 of the war on drugs. Many things have happened. The police station in Caloocan where records were have caught fire….It is not the genuine investigation envisioned by the Rome Statute,” said Conti in a virtual press conference with Rise Up mothers on Monday.

The Rome Statute says a case can be considered admissible by the ICC if there is a lack of genuine ability or willingness for the State to prosecute by itself the killings.

There have been too few cases that reached the judicial mill out of either the 7,884 killed in police operations or the estimated 27,000 total killed, including deaths by vigilantes.

The Philippine National Police’s openness to share records with the DOJ only came about with the appointment of its new chief, General Guillermo Eleazar, with Guevarra admitting the sealed records before made their review difficult.

Then the data-sharing was narrowed, from all records, to just 52 for now, because of Duterte’s concerns about putting national security at risk if other people get access to the police records.

“This lack of access to and of free flow of information is a major obstacle to any genuine investigation within the country. In the Philippines, it has been practically up to victim’s families and allies to undertake proper documentation and case-building for prosecution of perpetrators,” said the communication.

Conti, during the press conference, said: “The State is unwilling and unable to genuinely investigate these killings. It’s time for the ICC to take jurisdiction.”

Asked for his reaction, Guevarra said: “All matters pertaining to the ICC are handled solely by the DFA. We respect the opinion of people who are critical of what we are seriously trying to do.”

Llore Pasco, mother of brothers Juan Carlo and Crisanto Lozano both killed in May 2017, said there is fear of increased intimidation if the ICC takes the next step. 

Pasco said over the last years, barangay officials with policemen sometimes dropped by and still asked for her sons. 

“Kung natatakot, oo natatakot. Pero hindi naman puwedeng magtago sa takot,” said Pasco.

(If we’re afraid, of course we are afraid. But we cannot hide in fear.)

Pasco said she and fellow mothers of those killed in the drug war are ready to testify.

“Handa na kaming humarap, kung ano man ang mangyayari. Habang tayo’y natatakot, lalo tayong tinatakot,” said Pasco.

(We’re ready to face the ICC whatever happens. The more we are afraid, the more they will make us fearful.) – Rappler.com