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ICC on track to make next move on PH case by 1st half of 2021

The International Criminal Court (ICC) Office of the Prosecutor is still on track to make its next move on the case in the Philippines – where crimes against humanity have been alleged in President Rodrigo Duterte's war on drugs – by the first half of 2021.

"We can confirm that the Office’s most recent annual report still accurately reflects our current position on the situation in the Philippines, which is that the Office anticipates reaching a decision in the first half of 2021," the ICC's Office of the Prosecutor, based in The Hague, told Rappler in an email on Saturday, February 20.

The last report being referred to is the one made by current Prosecutor Fatou Bensouda in December 2020, where she said she has found "reasonable basis to believe" that crimes against humanity were indeed committed.

The next move is whether or not the prosecutor would seek authorization from the pre-trial chamber to open a formal investigation. Investigation is a phase in the ICC process where judges could issue summons and even arrest orders. Duterte, and his top officials, are named respondents in many of the communications sent to the ICC.

The OTP, however, said, "At this point we are not in a position to pinpoint the specific date."

Bensouda, who opened the preliminary examinations that made Duterte withdraw the Philippines from the ICC, is finishing her term in June. The newly-elected prosecutor, British Karim Khan, would take over on June 16.

Karim Khan, the new prosecutor

INCOMING ICC PROSECUTOR. New ICC Prosecutor Karim Khan is shown in this photo attending a news conference in September 2013 as defense counsel for Kenya's Deputy President William Ruto. Photo by Michael Kooren/Reuters

If Bensouda would open the investigation, "it might matter  because it could give the court’s judges confidence that the request for authorization to investigate was made by a prosecutor involved in the matter from the beginning," said international human rights lawyer Ruben Carranza, a senior expert at the International Center for Transitional Justice.

"On the other hand, Karim Khan’s familiarity with the Philippine case might be an advantage," Carranza, former Presidential Commission on Good Government (PCGG) commissioner, told Rappler in an email interview.

According to his curriculum vitae uploaded on the website of the Assembly of States Parties (ASP) to the Rome Statute, Khan was a trainer and course director for the Best Practices in Human Rights Investigations program done with the Philippines' Commission on Human Rights (CHR) in February 2018.

In congratulating Khan's election, Duterte spokesperson Harry Roque said he hopes the new prosecutor would not forget that there's no ICC jurisdiction if the country is willing to investigate its own human rights problems.

Khan will be "conscious" of this, said Carranza.

One of the biggest criticisms to Khan's election as a prosecutor is that he was a defense counsel to Kenya deputy president William Ruto in an ICC investigation over election violence from 2007 to 2008. The ICC had already vacated the charges against Ruto without prejudice to a reopening, if new evidence surface.

In the Kenya case, their government created a special tribunal to investigate, but Bensouda said in 2016 that it was unable to hold the "political elite" accountable.

In the Philippines, the Department of Justice (DOJ) had finished a partial reinvestigation of more than 5,000 deaths in police anti-drug operations, although it has yet to publicize the partial report.

"Khan will be conscious of the fundamental inconsistency of having a ’task force’ created by a country’s president ‘reinvestigating' killings in a drug war openly promoted by that same president," said Carranza.

Will PH be ICC's priority?

Experts have noted that prioritization in the ICC's workload may play a factor in the Philippine case.

Carranza noted that Khan is aware that slow preliminary examinations erode people's confidence in the ICC. Bensouda opened the preliminary examinations into the Philippines 3 years ago, in February 2018.

"The length of time preliminary examinations remain open precludes the Office of The Prosecutor from actively investigating and gathering evidence that may be unavailable later," Khan had told civil society groups in December when he was seeking election as prosecutor.

Carranza said developments in the Philippines gave the prosecutor "no reason" to tarry.

"Given the lack of progress beyond the mere creation of the DOJ reinvestigation task force, there would be no reason for the Prosecutor to wait longer," said Carranza.

"The Office of the Prosecutor can even already ask for approval to investigate  before the new prosecutor comes in, given that the Philippine withdrawal and obvious lack of intention to cooperate suggest a higher likelihood that the Duterte administration is more likely to try to intimidate witnesses and destroy evidence," he added.

Families of drug war victims, represented by the National Union of Peoples' Lawyers (NUPL), have written the ICC prosecutor to bring on a separate charge against Duterte for impeding the administration of justice – a separate offense under Article 70 of Rome Statute – over threats against Bensouda and for continuously undermining the ICC. – Rappler.com

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.

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