International Criminal Court

[Sui Generis] The ax hanging over Duterte, Dela Rosa, and Albayalde’s heads

Marites Dañguilan Vitug

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[Sui Generis] The ax hanging over Duterte, Dela Rosa, and Albayalde’s heads

Graphic by Raffy de Guzman

'It is not just today’s generation that will know of their link to mass murder. Future generations can always look back at the records of the ICC – and history will come alive.'

What stands out in the 57-page request of the International Criminal Court (ICC) Prosecutor to open an investigation into the Philippines’ drug war is the fact that an official document bears the names of President Rodrigo Duterte and two former chiefs of the Philippine National Police (PNP) – Ronald Dela Rosa and Oscar Albayalde – as major state actors involved in the killings of thousands of Filipinos.

In the careful language of the Prosecutor, “…there is reasonable basis to believe that the Crime Against Humanity of Murder was committed from at least 1 July 2016 to 16 March 2019 in the context of the Philippine government’s ‘war on drugs’ campaign.” (The Philippines’ unilateral withdrawal from the ICC took effect on March 17, 2019.)

Here, the Prosecutor is explicit: “These extrajudicial killings…appear to have been committed pursuant to an official State policy of the Philippine government…as part of a widespread and systematic attack directed against a civilian population…”

This is a burden that Duterte, Dela Rosa, and Albayalde will carry for the rest of their lives, that their names are in the annals of the ICC as perpetrators of a crime against humanity. They may shrug this off – as the ICC is still in the very early stage of a long process – but history can weigh down people tarred by the brush of an international judicial body.

It is not just today’s generation that will know of their link to mass murder. Future generations can always look back at the records of the ICC – and history will come alive.

Patterns of killings

The Prosecutor’s request, although redacted, brims with facts and details, like a manual on rogue police operations. It makes sense of all these by showing patterns of killings and dividing these into phases.

Broadly, the killings were classified as those perpetrated during official anti-drug operations and those committed outside of these. The patterns ranged from killings during buy-bust operations, tokhang, to killings in checkpoints, and during patrols and raids. It was as if the police were on a rampage, hungrily looking for their prey.

How about the vigilante killings? Many were found to have links to the police.

The damning conclusion of the Prosecutor was: Whatever the type, based on eyewitness testimony, video footage, and other information, the “nanlaban” justification for self-defense fell through: “…most victims did not pose a threat to the police, and were instead killed in a premeditated manner.… Many killings were not justified…therefore arbitrary and unlawful.”

And whatever the phase, it becomes crystal clear that the PNP was a key perpetrator, deliberately killing thousands of drug suspects.

Case stages

Let’s backtrack a bit. In February 2018, the ICC Prosecutor started the preliminary examinations of what they call the “situation” in the Philippines. This arose from complaints against the drug war killings filed by various individuals and groups.

It took more than three years for the Prosecutor to complete the first phase – determining whether there is ample evidence to establish that the case falls within the ICC’s jurisdiction. The answer was yes. Thus, in May, the Prosecutor filed with a Pre-trial Chamber a request to open a probe, which was made public only last week before Fatou Bensouda ended her term on June 15.

An investigation, the second stage, means that:

  • Evidence will be gathered and examined. Investigators will be sent to areas where the alleged crimes occurred.
  • Persons involved will be questioned – suspected perpetrators as well as victims and witnesses – to determine innocence or guilt.
  • After gathering evidence and identifying a suspect, the Prosecution will request ICC judges to issue an arrest warrant or a summons to appear. (The ICC relies on countries to make arrests and transfer suspects to the ICC or make suspects appear voluntarily.)

The next steps are: pre-trial, trial, appeals, and enforcement of sentence.

As we can see, this case has a long way to go and the investigation stage will be like an obstacle course. Duterte has said that he will not cooperate with the ICC. This means that the staff of the ICC will not be able to come to the Philippines. As a matter of policy, ICC staff openly travel to areas under investigation, in their official capacities.

This problem, though, is not insurmountable. Besides, Duterte has only a year left in Malacañang.

The entire process of seeking justice and accountability may take a long time; too long, perhaps. But for now, the Prosecutor’s report is an ax that hangs over the heads of Duterte, Dela Rosa, and Albayalde. – Rappler.com

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Marites Dañguilan Vitug

Marites is one of the Philippines’ most accomplished journalists and authors. For close to a decade, Vitug – a Nieman fellow – edited 'Newsbreak' magazine, a trailblazer in Philippine investigative journalism. Her recent book, 'Rock Solid: How the Philippines Won Its Maritime Case Against China,' has become a bestseller.