ICC opens investigation into Duterte drug war, DDS killings

The International Criminal Court (ICC) pre-trial chamber has opened the crucial investigation into the Philippine war on drugs, the court's pre-trial chamber announced on Wednesday, September 15. 

"For these reasons, the chamber hereby authorizes the commencement of the 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 so-called ‘war on drugs’ campaign," said the pre-trial chamber 1 of the ICC.

This means the ICC will look not only at President Rodrigo Duterte's bloody war on drugs, but also at killings by the so-called Davao Death Squad when Duterte was mayor and vice mayor of Davao City.

The decision was signed by Presiding Judge Péter Kovács, Judge Reine Adélaïde Sophie Alapini-Gansou, and Judge María del Socorro Flores Liera.

The investigation is a crucial stage where summons and arrest warrants can be issued if Prosecutor Karim Khan asks for them.

"On the basis of the above, the Chamber concludes that there is a reasonable basis for the Prosecutor to proceed with an investigation, in the sense that the crime against humanity of murder appears to have been committed, and that potential case(s) arising from such investigation appear to fall within the Court’s jurisdiction," said the judges.

Once again, the pre-trial chamber took into account Duterte's statements, saying: "President Rodrigo Duterte has publicly encouraged extrajudicial killings in a way that is incompatible with a genuine law enforcement operation."

Experts whom Rappler have talked to said that the Office of the Prosecutor (OTP) would like to take its time and tighten its case before requesting for summons and arrest warrants. Whoever the summons and arrest warrants are requested against will be assumed to be the ones who will be put on trial.

President Duterte's chief legal counsel Salvador Panelo on Thursday, September 16, said the ICC chamber's decision "neither bothers nor troubles the President and his administration."

A pattern

It was newly-retired prosecutor Fatou Bensouda who asked the pre-trial chamber for authorization to open the investigation, which Malacañang persistently said would be denied, citing lack of jurisdiction.

In the decision, the pre-trial judges said Bensouda was able to sufficiently establish a pattern in the killings in Davao City when Duterte was mayor, up to the killings in the war on drugs when he was already president.

"In the assessment of the Chamber, there exists information sufficiently linking the killings in the Davao area in 2011-2016 to the relevant facts of the so-called ‘war on drugs’ campaign as discussed above," said the pre-trial chamber.

The pre-trial chamber also said it would not be necessary at this stage to fully establish if the Davao City killings constitute crimes against humanity.

"What is important for the present decision is that, whichever the case may be, that it appears, on the basis of the supporting material, that the killings in the Davao area between 1 November 2011 and 30 June 2016 show a certain pattern and may constitute crimes against humanity within the jurisdiction of the Court," said the pre-trial chamber.

Speaking for the Palace, Panelo said Malacañang stands firm on its stance that the ICC has no jurisdiction over the Philippines, claiming the Rome Statute which created the court "never took effect in the country" because it was never published on the Official Gazette. 

However, lawyers' groups have said such publication is not a requirement and that Republic Act 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (International Humanitarian Law Act) allows “our courts to try cases cognizable by the ICC under the principle of complementarity.”

The pre-trial chamber also took note of the representations submitted by victims. The representation process was a stage where victims sent in their concerns and expectations without necessarily indicating they were willing to participate in court proceedings.

The judges said that representations also alleged other crimes apart from murder, like sexual violence.

"A legal analysis undertaken by the Registry has categorized the assertions and identified other inhumane acts/torture, imprisonment or other severe deprivation of liberty and enforced disappearance as the most commonly reported crimes other than murder. Moreover, the Chamber notes with particular attention that three representations reported sexual violence," said the pre-trial judges.

Panelo insisted that the country's justice system is able and willing to prosecute abusive law enforcers and officials "if only genuine complainants come forward to the proper authorities instead of personalities who will use their plight for political ambitions."

He repeated the Malacañang accusation that the ICC is being politicized and used for "propaganda" by Duterte's critics.

"While we expect that more theatrics will be employed by the detractors of the President as election season draws near, this blatant and brazen interference and assault on our sovereignty as an independent country by the ICC is condemnable," said Panelo.

Malacañang has previously vowed never to cooperate with ICC investigators on any probe it will conduct on the drug war. – with reports from Pia Ranada/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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