What challenges will complaint vs Duterte face before ICC?

Jodesz Gavilan

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What challenges will complaint vs Duterte face before ICC?
The 'communication' submitted to the ICC regarding the alleged crimes against humanity committed by Duterte in his war on drugs is just the beginning of what could be a long process full of challenges

MANILA, Philippines – On Monday, April 24, lawyer Jude Sabio requested the International Criminal Court to hold President Rodrigo Duterte accountable for alleged “mass murder” in the Philippines. 

Citing the deaths allegedly carried out by the Davao Death Squad (DDS) and the victims of the existing war on drugs, the lawyer of self-confessed hitman Edgar Matobato requested the Pre-Trial Chamber of the international court to “commit Duterte and his senior government officials to the Trial Chamber for trial and that the Trial Chamber in turn, after trial, convict them and sentence them to corresponding prison sentence or life imprisonment.”

The anti-illegal drugs campaign of the present administration has been the subject of criticism of local and international organizations for its unprecedented number of deaths.

Latest data from the Philippine National Police (PNP) shows that since July 1, about 2,717 individuals have been killed in police operations. Meanwhile, deaths under investigation number 3,603. (READ: IN NUMBERS: The Philippines’ war on drugs)

The submission of the 78-page “communication” entitled, “The Situation of Mass Murder in the Philippines, Rodrigo Duterte: The Mass Murderer” to the ICC, however, is just the beginning of what will be a foreseeable long process that may take years – if it even prospers. 

Crimes against humanity

Aside from Duterte, Sabio indicated in his complaint 11 officials – including Justice Secretary Vitaliano Aguirre and PNP chief Director General Ronald dela Rosa, among others – who should also be held liable for crimes against humanity.

The ICC defines crimes against humanity as “serious violations committed as part of a large-scale attack against any civilian population.” (READ: Things to know about Duterte’s pet peeve ICC)

While the Philippines is under the international court’s jurisdiction after it ratified the Rome Statute in 2012 and crimes against humanity is among those covered, it is still up to the Office of the Prosecutor whether the complaint will see its day in court or not.  

Harvard Law professor and former ICC investigation and prosecution coordinator Alex Whiting explained the process to Rappler in an email:

“The Office of the Prosecutor of the ICC must conclude that there is a reasonable basis to believe crimes within the jurisdiction of the court have been committed. It will then open a preliminary examination to determine if a full investigation is warranted, and will assess whether an ICC crime was committed within the Court’s jurisdiction, whether a state is investigating (or is likely to investigate), and the gravity of the offense. If it finds these conditions are satisfied, it will commence a full investigation.”

Many government officials, even the opposition, opposed the idea of bringing the war on drugs killings to the ICC as national courts should first be allowed to do their job. This is what some believe would make the case inadmissible in the eyes of the Office of the Prosecutor. (READ: Senators say ICC case vs Duterte ‘dustbin-bound’) 

But what would make a case prosper at the ICC? There are a lot to be considered, according to Whiting, but just because all remedies at the level of local courts are not exhausted will not mean a case will be deemed inadmissible. 

“[A case will prosper] either in the absence of a national investigation or if there is a national investigation, a finding by the ICC that the state will be unable to proceed with the investigation because of lack of institutions or will, or access to evidence or the accused, or that its investigation is not genuine, meaning that it is in reality a sham investigation designed to shield the suspects,” he told Rappler.

This was affirmed by lawyer Arpee Santiago, chair of the Philippine Coalition for the International Criminal Court (PCICC).

“The ICC is based on a principle of complementarity, not really on exhaustion of domestic remedies,” he explained. “This means that the ICC can only act when a national court is unable or unwilling to carry out a prosecution but it is also said that when a state’s legal system collapses or when a government is a perpetrator of heinous crimes, the ICC can exercise jurisdiction.”

MASS MURDERER. The cover letter of the 78-document submitted to the Office of the Prosecutor by lawyer Jude Sabio.

Major challenges

In the event that an ICC investigation begins over the killings in the Philippines, the biggest challenge the prosecution will face is obtaining evidence that directly links Duterte to the crimes “beyond a reasonable doubt.” 

Sabio, however, said in his complaint before the ICC that there is “direct proof beyond reasonable doubt” that Duterte just carried over his so-called “best practice” of killing suspected criminals in Davao City when he implemented the nationwide war on drugs. 

This was what he said during an interview weeks before flying to the Netherlands: Sabio told Rappler’s Chay Hofileña on March 23, that Duterte’s various pronouncements on killing drug personalities show that he continued the “strategy” he used in Davao City as stated in testimonies of the DDS whistle-blowers. (READ: Killings in war on drugs ‘extension’ of DDS system – Sabio) 

Two international organizations – Amnesty International and Human Rights Watch – stated in their respective reports on the war on drugs that Duterte could be held liable for crimes against humanity for the huge number of suspected drug personalities who have been killed. 

Whiting, however, explained it will take more evidence than what has been stated in the news and the public outcry to support the case against Duterte.

“Although there has been much reporting on the alleged crimes in the Philippines, the prosecution would have to bring reliable proof to court to prove the culpability of senior officials beyond a reasonable doubt,” Whiting said. “That is always a challenge, even when the crimes are notorious or have received significant publicity.” 

Meanwhile, if the charges are approved by the judges at the ICC, arresting accused personalities, in this case Duterte, and the 11 officials – might again pose as a challenge.  

“It will always be a challenge to arrest suspects when the state where they are located is not cooperating with the court,” he said. 

As of April 2017, 13 individuals are at-large or are yet to be arrested by the ICC. One of those who remain at large is Joseph Kony of the Lord’s Resistance Army in Uganda who currently faces 12 counts of crimes against humanity (murder, enslavement, sexual enslavement, rape, inhumane acts of inflicting serious bodily injury and suffering), and 21 counts of war crimes. 

Take years 

Since 2002, the Office of the Prosecutor at the ICC has received at least 10,000 “communications” from people around the world to investigate alleged crimes.  

As of April 2017, a total of 23 cases have been handled by the international court with 9 convictions and one acquittal. Meanwhile, there are 5 ongoing trials, 10 preliminary examinations, and 10 full investigations. 

Sabio will now wait for the action of the ICC on the complaint he filed. 

According to Whiting, the court will “take as long as it needs to make this assessment” but he personally believes that there is substantial evidence that crimes against humanity are being committed in the Philippines. 

“Sometimes it is clear very quickly, sometimes it takes longer,” he said. “[But] the ICC will in time commence an investigation, and there is a significant possibility that state actors will be charged.  

“All of this will take time, but culpable state officials face a genuine risk that they will be held accountable in the future,” Whiting added.  

The Philippine government has no choice but to cooperate, as withdrawing from the roster of countries that the ICC has jurisdiction over – just like what Duterte threatened to do in November 2016 – will no longer affect existing investigations or proceedings, as stated in Article 127 of the Rome Statute. 

If a state does not cooperate in providing evidence requests, and if possible, even a request for an arrest, the international court has mechanisms in place to hold the Philippine government accountable. However, enforcement will yet again be a challenge. 

“Under the Rome Statute the state is under a legal obligation to cooperate with the court’s investigations, but the court has few tools to enforce this obligation,” Whiting told Rappler. “Essentially, its sole recourse is to complain to the judges who can then make a finding of non-cooperation and refer the matter to the Assembly of States Parties.”

But the Commission on Human Rights (CHR) on Wednesday, April 26, said that it is “always prepared” to cooperate if the ICC will seek help. 

“The CHR as a national human rights institution is always prepared to cooperate with the UN & other international bodies to ensure that the Philippines abides by its human rights obligations,” CHR Chairperson Chito Gascon said. “The ICC has thus far not communicated with the CHR with regard to any investigation it may be conducting regarding developments here.”

“In the meantime, we will continue with our documentation of human rights violations and ask the State to hold perpetrators to account,” he added.

In the event that the case prospers after the administration of Duterte, Santiago said that he can still be held liable because “the determining factor is when [the crimes] happened” but this is not the immediate issue the complaint will have to face. 

“The two main issues to be determined at the moment that have to be hurdled: the principle of complementarity and the threshold question of whether the cases in the Philippines amount to ‘crimes against humanity,’” he explained.  

Determining whether or not Duterte committed crimes against humanity as the bloody war on drugs continues is now in the hands of the Office of the Prosecutor. –

Read Rappler’s explainers related to the ICC:

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Jodesz Gavilan

Jodesz Gavilan is a writer and researcher for Rappler and its investigative arm, Newsbreak. She covers human rights and impunity beats, producing in-depth and investigative reports particularly on the quest for justice of victims of former president Rodrigo Duterte’s war on drugs and war on dissent.