ICC begins probe into Duterte’s bloody drug war

THE PRE-Trial Chamber I of the International Criminal Court (ICC or Court) said it has granted the Prosecutor’s Fatou Bensouda’s request to commence an investigation in relation to crimes within the jurisdiction of the Court allegedly committed in the Philippines between November 1, 2011 and March 16, 2019 in the context of the so-called “war on drugs” campaign.

It can be recalled that on June 14, 2021, the Prosecutor filed a public redacted version of the request to open an investigation, initially submitted on May 24, 2021, requesting authorisation to commence an investigation into the situation in the Philippines, as provided for in Article 15(3) of the Rome Statute.

Before her term ended in June, Bensouda sought authorisation from The Hague tribunal to open a full investigation into President Rodrigo Duterte’s ongoing war on drugs that killed thousands of people, including innocent children.

Bensouda said a preliminary probe that began in February 2018 determined “that there is a reasonable basis to believe that the Crime against Humanity of murder was committed” in the Philippines between July 1, 2016 and March 16, 2019, which was when Duterte ordered that the Philippines withdraw from the court.

The suspected crimes happened “in the context of the government of Philippines ‘war on drugs’ campaign,” Bensouda said in a statement announcing that she was seeking judicial authorisation to proceed with a full investigation.

“Information obtained by the Prosecution suggests that state actors, primarily members of the Philippine security forces, killed thousands of suspected drug users and other civilians during official law enforcement operations,” she said.

Drug Suspects

Duterte launched his deadly campaign against narcotics shortly after his victory in the May 2016 presidential elections. He ran on a single issue of fighting crimes in the Philippines, and during his campaign and later as president, Duterte repeatedly urged police to “kill” drug suspects.

The latest government data shows that as of the end of April 2021, police and security forces have killed at least 6,117 suspected drug dealers during operations, although earlier government figures showed at least 8,600 deaths.

A police report in 2017, however, referred to 16,355 “homicide cases under investigations” as accomplishments in the drugs war. As early as December 2016, Al Jazeera had already reported more than 6,000 deaths in the drug war, raising questions about the inconsistency of the government’s numbers.

The Pre-Trial Chamber I composed of Judge Peter Kovacs, Presiding Judge Reine Adélaide Sophie Alapini-Gansou and Judge Maria del Socorro Flores Liera, examined the Prosecutor’s request and supporting material. The Chamber also considered 204 victims' representations received pursuant to Article 15(3) of the Statute.

In accordance with Article 15(4) of the Statute, the Chamber found that there is a reasonable basis to proceed with an investigation, noting that specific legal element of the crime against humanity of murder under Article 7(1)(a) of the Statute has been met with respect to the killings committed throughout the Philippines between July 1, 2016 and March 16, 2019 in the context of the so-called “war on drugs” campaign, as well as with respect to the killings in the Davao area between November 1, 2011 and June 30, 2016.

The Chamber also emphasised that, based on the facts as they emerge at the present stage and subject to proper investigation and further analysis, the so-called “war on drugs” campaign cannot be seen as a legitimate law enforcement operation, and the killings neither as legitimate nor as mere excesses in an otherwise legitimate operation. Rather, the available material indicates, to the required standard, that a widespread and systematic attack against the civilian population took place pursuant to or in furtherance of a State policy, within the meaning of Article 7(1) and (2)(a) of the Statute.

The Philippines, State party to the Rome Statute since November 1, 2011, deposited a written notification of withdrawal from the Statute on March 17, 2018. While the Philippines’ withdrawal from the Statute took effect on March 17, 2019, the Court retains jurisdiction with respect to alleged crimes that occurred in the Philippines while it was a State Party, from November 1, 2011 up to and including March `6, 2019.

While the relevant crimes appear to have continued after this date, the Chamber said it noted that alleged crimes identified in the Article 15(3) Request are limited to those during the period when the Philippines was a State Party to the Statute and was bound by its provisions.

Human rights groups said the number of deaths could be at least 27,000, and accuse the authorities of carrying out summary executions that killed innocent suspects including children. Countless people were also killed by “unknown” gunmen.

Police say the suspects were killed when they resisted arrest and became violent, but there have been documented cases of suspects being executed, or survivors saying police shot unarmed civilians.

The drug war killings have also continued even in the middle of the coronavirus pandemic and lockdown, as Duterte vowed that there is no stopping in pursuing suspects.

Bensouda said prosecutors also reviewed allegations of “torture and other inhumane acts, and related events” dating back to November 1, 2011, “all of which we believe require investigation”.

Duterte’s drug war, she said, shows “a State policy to attack civilians”.

Those allegations center in the city of Davao, where Duterte served as mayor for about two decades. In 2017, a retired police officer had linked Duterte and his men to nearly 200 killings in Davao.

Will Not Cooperate

In one of his regular press briefings, Duterte’s spokesman, Harry Roque, dismissed the decision as “legally erroneous and politically motivated.” He said: “The President will never cooperate until the end of his term on Jun 30, 2022.”

He also said that the ICC “has no jurisdiction” of the alleged crimes, adding that the police officers have “the right to defend” themselves using “reasonable force” during drug operations, “and therefore, justified by the principle of necessity and proportionality.”

In an address recorded a week before the news of Bensouda’s request broke, Duterte called on human rights organisations to take a closer look into his war on drugs. “You would notice that there are really persons who die almost daily because they fought back,” he said, warning drug dealers: “Do not destroy the country. I will kill you.”

Duterte had previously called Bensouda “that black woman,” while calling another international human rights investigator, Agnes Callamard as “skinny” and “malnourished.” 

Callamard is now the Secretary General of Amnesty International.

The “war on drugs” has been a cornerstone of Duterte’s presidency since he came to power promising to crush crime, despite criticism from opponents and human rights groups of widespread abuses.

Landmark Step

Amnesty International welcomed what it described as a landmark step noting that the killings continued unabated. “This announcement is a moment of hope for thousands of families in the Philippines who are grieving those lost to the government’s so-called ‘war on drugs’,” Callamard said in a statement. “This is a much-awaited step in putting murderous incitement by President Duterte and his administration to an end.”

In Manila, the news of the ICC prosecutor’s move was welcomed by human rights groups. In a statement, Param-Preet Singh, of the Human Rights Watch, said that Duterte’s previous threats “may finally come back to haunt him”.

A possible investigation is “especially welcome given the United Nations Human Rights Council has yet to effectively condemn the Duterte government’s atrocities,” she said, while urging the UN body to back the probe and “course-correct” and stand up for the victims of the killings.

The International Coalition for Human Rights in the Philippines (ICHRP) also pressed the Human Rights Council to act and initiate “a long overdue independent investigation” into the killings.

Peter Murphy, ICHRP spokesman, said the case against Duterte “is already well documented,” and it is up to the UN body 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.”

The National Union of People’s Lawyers (NUPL) President Edre Olalia said the announcement “was all worth the wait, notwithstanding the long nights of grief and grim days of fear”.

“Crimes against humanity are crimes against all. No one is exempt or invincible, no matter how arrogant the impunity, or deceiving the pretension,” he said in a statement to Al Jazeera.

In a separate statement to Al Jazeera, the human rights group, Karapatan, which has been assisting families of slain drug suspects, said the Bensouda’s decision “is yet another damning indictment of the Duterte government’s murderous policies that have killed – an continue to kill – thousands of Filipinos with impunity.”

Many of those killed in Duterte’s crackdown had been on a drug watch list compiled by authorities or had previously surrendered to police, while a significant number of children and teenagers were victims, Bensouda’s office said in a report in December.

In June 2020, the UN said at least 73 children had been killed in the drug war, with the youngest just five months old.

Duterte announced that the Philippines was withdrawing from the ICC in March 2018. The decision came into force a year later. The court, however, still has jurisdiction over the alleged crimes that happened while the country was still a member of the court.

When he announced he was going to withdraw from the court, Duterte defended his drug crackdown, saying in a 15-page statement that it is “lawfully directed against drug lords and pushers who have for many years destroyed the present generation, especially the youth”.

Callamard said Bensouda’s announcement “is a moment of hope for thousands of families in the Philippines who are grieving those lost to the government’s so-called war on drugs. This is a much-awaited step in putting murderous incitement by President Duterte and his administration to an end.”

While the Philippines has long faced issues with impunity prior to the Duterte administration, the situation significantly worsened with the widespread and systematic killing of thousands of alleged drug suspects since 2016. “The ICC’s intervention must end this cycle of impunity in the country and send a signal to the police and those with links to the police who continue to carry out or sanction these killings that they cannot escape being held accountable for the crimes they commit,” she added.

Former Justice Secretary and now Senator Leila de Lima said she welcomed the ICC’s full-blown investigation of the thousands of killings under the Duterte regime's murderous war on drugs.

“Sabi ko naman noon pa, hindi pang-habangbuhay ang kapangyarihan. May galaw ang hustisya na hindi mako-kontrol ng politika ninyo at kapangyarihan. Hindi 'yan karma, that's the march of justice about to trounce you. Let's return to Mr. Duterte the favor and give him a taste of his own medicine: “Kung wala kang kasalanan, hindi ka matatakot.”

“That's why it is called the Rule of Law. You can't just play with the law of humanity and use your own set of rules. Kahit pa ang pangalan mo ay Duterte. So the International Criminal Court is now at your door, behind it are thousands of victims of your bloodbath,” she added.

De Lima said the recent development means that Duterte’s days are coming to an end, stressing that the only question now is whether Duterte’s own death will come as a boon and save him from the trial and judgment of the ICC for his crimes against humanity.

“He might actually be entertaining that notion now, better to die first than to suffer the humiliation of being dragged in chains to The Hague as one of the few individuals in history to be tried as hostis humani generis, an enemy of mankind,” she said.

Pray for Duterte

De Lima, adding insult to injury, further said that Filipinos should pray for Duterte's long life and good health because his death would be unfair to the thousands of poor Filipinos killed under his orders. 

“It would be an injustice for him to escape his coming trial and conviction by the grace of an early departure from this world. No, that should not happen. Let us all pray for Duterte's long life and good health, so that he may go through the ICC trial that would follow his arrest after the start of the investigation of the Office of the Prosecutor," she said. “All power, no matter how absolute, is always fleeting. Only justice is permanent. Let it be done though the heavens fall.”

enator Risa Hontiveros also hailed Bensouda’s statement and said the day of reckoning is coming. “The International Criminal Court is an important part in the global fight against impunity and Prosecutor Fatou Bensouda's tireless pursuit to exact the truth behind this administration's bloody war on drugs is highly laudable,” she said.

War on drugs continues

Duterte’s former aide-turned-politician Senator Bong Go said in spite of calls by Bensouda to probe the President, “the war against drugs will remain relentless to provide future generations of Filipinos a safer Philippines.”

“Hindi po titigil si Pangulong Duterte sa kampanya kontra droga. Inumpisahan na po ito ni Pangulong Duterte. Ramdam na po ito ng taumbayan,” Go told reporters, adding, the campaign against illegal drugs has made the country safer and more secure and Filipinos trust law enforcement authorities now more than before.

“Magtanong po kayo. Nakakalakad na po ang kanilang mga anak sa gabi, sa tulong po 'yan ng mga pulis. Ang mga pulis ngayon, malalapitan niyo po, maasahan niyo po. Ramdam po ng taumbayan na secure po at meron tayong peace of mind na umuwi ang kanilang mga anak,” Go said. “Kumpara po noon kesa ngayon, makakauwi po ang ating mga anak na meron tayong peace of mind na walang gagalaw sa kanila, dahil po 'yan sa sakripisyo ni Pangulong Duterte para sa ating mga anak.”

Go said that the war on illegal drugs is in line with Duterte's mission of providing a safer country not just for Filipinos today but for generations to come. “Ang kampanya laban sa droga, ginagawa po ni Pangulong Duterte hindi lang po para sa atin ngayon para po 'yan sa ating mga anak. Sinugal niya po lahat. Sabi niya hindi siya titigil hanggang sa huling araw ng kanyang termino. Galit si Pangulong Duterte sa mga durugista,” he said. (Al Jazeera, Amnesty International and Mindanao Examiner)