The International Criminal Court (ICC) Office of the Prosecutor has applied for an authorization with the pre-trial chamber (PTC) to open an investigation into the alleged crimes against humanity committed in President Rodrigo Duterte's violent campaign against drugs. It also seeks to probe into the killings in Davao City from 2011 to 2016.
In a document released Monday, June 14, Prosecutor Fatou Bensouda said: "...the Prosecution requests the Chamber to authorize the commencement of an investigation into the situation in the Philippines, in relation to crimes within the jurisdiction of the Court allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the War on Drugs campaign, as well as any other crimes which are sufficiently linked to these events."
Prosecutor Fatou Bensouda's application for authorization must be approved by the ICC's pre-trial chamber.
Bensouda told the PTC that "the same types of actors also allegedly committed strikingly similar crimes in the city and region of Davao (“Davao”), starting in 1988 and continuing through 2016."
"Given the similarities between those killings and the nationwide War on Drugs killings from July 2016 to March 2019, and the overlap of individuals involved during both periods, the Prosecution requests that the 2011-2016 events in Davao be included within the requested investigation," said Bensouda.
On the drug war, Bensouda said "these extrajudicial killings, perpetrated across the Philippines, appear to have been committed pursuant to an official State policy of the Philippine government."
"Police and other government officials planned, ordered, and sometimes directly perpetrated extrajudicial killings. They paid police officers and vigilantes bounties for extrajudicial killings. State officials at the highest levels of government also spoke publicly and repeatedly in support of extrajudicial killings, and created a culture of impunity for those who committed them," said Bensouda.
As in all ICC procedures, there is no certainty about the time it may take the PTC judges to reject or approve the request.
If the PTC approves, an investigation will put the Duterte administration under more intense international legal scrutiny. Investigation is a crucial phase where summons and arrest orders could be issued.
The application is Bensouda's farewell move for the Philippines as she retires on June 15. Britain's Karim Khan takes over on June 16, and it will be under him that the Office of the Prosecutor will navigate this case as it moves through the ICC. Khan is aware of the drug war situation here, having visited the country in 2018.
Tens of thousands of people have been killed in Duterte's drug war, with human rights groups saying that about 27,000 have been killed. The police have pegged their numbers at only about 7,000.
The application to open the investigation means Bensouda was able to establish jurisdiction. This means that the Philippine justice system, for her, was unable or unwilling to indicate willingness to prosecute these killings. Jurisdiction was established despite the Department of Justice's (DOJ's) drug war review.
In the ICC process, the prosecutor can request the ICC judges to issue summons or even arrest warrants. For arrests to be made, the ICC will rely on the cooperation of Philippine authorities, or other member states, where the subject of warrant would travel to.
President Rodrigo Duterte has withdrawn the Philippines from the Rome Statute, and by extension, the ICC. The ICC has said before that Duterte’s unilateral withdrawal will not affect its investigation because the Rome Statute states that any proceeding that started before a nation's withdrawal will remain effective even after.
International lawyer Priya Pillai told Rappler in an earlier interview that the withdrawal will make it difficult for the ICC to investigate the case.
“Withdrawal will make any investigation, if approved by a pre-trial chamber, more difficult as there will be no guarantee of actual cooperation,” said Pillai, who has expertise in international justice and human rights.
For starters, Malacañang said it will deny any ICC personnel entry to the Philippines. How the ICC will gather data and evidence remains uncertain.
Although the Rome Statute requires cooperation among member states – even those that had withdrawn – Duterte’s pronouncements against the ICC or any international body make cooperation seem unlikely.
Pillai recalled how ICC judges withdrew charges in Kenya for lack of evidence, precisely because there was no cooperation from the government, and witnesses were being intimidated.
“Hence, this is a possible scenario in the case of the Philippines, if cases do go forward,” said Pillai. The next stage after investigation would be pre-trial.
The Supreme Court has not made a decision on petitions seeking to stop the withdrawal of the Philippines from the ICC. The second justice to handle this case in the four years it has dragged would retire on June 30.