Challenges lie ahead for the request of outgoing International Criminal Court (ICC) Prosecutor Fatou Bensouda to open an investigation into killings under Rodrigo Duterte – both as Philippine president and former mayor of Davao City.
Bensouda said as much in her statement late night Monday, June 14, Manila time, when her office released a redacted version of a May 24 request with the ICC's pre-trial chamber (PTC) to authorize an investigation. The PTC has to give its nod before an investigation can proceed.
"Aware of the complex operational challenges that will be faced by the Office if an investigation is authorized by the Pre-Trial Chamber, we have also been taking a number of measures to collect and preserve evidence, in anticipation of a possible investigation," said Bensouda.
Bensouda retires Tuesday, June 15, so any authorized investigation into the Philippines will be handled by his successor, British Karim Khan.
"It is clear that how the Office, under his leadership, will set priorities concerning this investigation will need to take into account the operational challenges arising from the continuing pandemic, the severe limitations on the ICC's available resources, and the Office's current heavy work commitments," said Bensouda.
This is important because as Malacañang spokesperson Harry Roque pointed out before, the ICC's pre-trial chamber judges once denied a request to investigate Afghanistan, saying that the challenges will make an investigation futile.
The PTC, though, has already reversed that controversial decision, paving the way for an investigation that is now ongoing.
"The Court today stands at a cross-roads in several concurrent situations, where the basis to proceed is legally and factually clear, but the operational means to do so are severely lacking," said Bensouda.
"It is a situation that requires not only prioritization by the Office, which is constantly being undertaken, but also open and frank discussions with the Assembly of States Parties, and other stakeholders of the Rome Statute system, on the real resource needs of the Court that will allow it effectively to execute its statutory mandate," Bensouda added.
What Bensouda cited in her Philippine statement Monday was Burundi, which, like the Philippines, withdrew from the ICC shortly after a preliminary examination was opened.
"Although the withdrawal of the Philippines from the Rome Statute of the ICC took effect on 17 March 2019, as the Court has previously found in the context of the Burundi situation, the Court retains jurisdiction over crimes that are alleged to have occurred on the territory of that State during the period when it was a State Party to the Rome Statute. Moreover, these crimes are not subject to any statute of limitation," said Bensouda.
The PTC authorized investigation into Burundi, ruling that although the country created commissions to look into the human rights abuses, those commissions "have not undertaken tangible, concrete and progressive investigative steps."
In the Philippines, there has been only one conviction in the war on drugs – the killing of 17-year-old Kian delos Santos. Too few cases out of the estimated 27,000 killings in Duterte's war on drugs – more than 7,000 of which were by policemen – have reached the judicial mill.
The government's highly-touted Department of Justice (DOJ) drug war review panel has only started looking at 52 cases.
"The panel has reportedly referred cases for disciplinary action and criminal investigation; however, to date there appear to have been no further criminal prosecutions as a result," Bensouda said in her 57-page request with the PTC.
Bensouda did not only request authority to investigate the killings in the drug war, but also killings since 2011 by the so-called Davao Death Squad (DDS) while Duterte was Davao City mayor.
"Available information suggests that local law enforcement were heavily involved in the Davao Death Squad, and that some Davao Death Squad were in fact police. Persons involved in pre-2016 killings in Davao in some cases appear to be the very same people later involved in War on Drugs (WoD)," said Bensouda.
"Those killings share a number of common features with killings during the later national WoD campaign, including the victim profile, advance warning to the victim, perpetrator profile, the means used, and the locations of incidents," said Bensouda.
With Burundi, the PTC judges took only a month to authorize the investigation. In Philippine case, three weeks have passed since Bensouda filed the request.
Bensouda said there is "a serious mismatch" between the demands of the job "and the resources made available to the Office."
Bensouda called on all States parties and partners to do "an honest reflection on our collective responsibility under the Rome Statute to advance the fight against impunity for atrocity crimes."
"The victims of these egregious crimes deserve nothing less," said Bensouda.
For Amnesty International (AI), the UN Human Rights Council (HRC) must step up. The council last year issued a resolution slammed by the human rights community as being too soft on Duterte, as it merely provided for technical cooperation which the Philippine government seemingly complied with by way of the DOJ review.
"Amnesty International and other civil society groups have repeatedly expressed concerns over the HRC’s failure to address the situation and the dangerous message it sends. The Council must now act to send a strong message that it too will no longer allow the Philippine government to continue its campaign of human rights violations with impunity," AI said in a statement Monday. – Rappler.com