The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in the Netherlands just delivered a strong blow to President Duterte after saying it found a reasonable basis to believe that crimes against humanity of murder, torture, infliction of serious physical injury and mental harm were committed in the conduct of the government’s anti-drug campaign.
In the OTP’s report of activities on the Preliminary Examination it is conducting in connection with Duterte’s war on drugs, it focused on the allegations that President Duterte and high-ranking members of the Philippine National Police (PNP) encouraged or gave orders for the unlawful killing of suspected drug dealers by the police or private individuals working for the police.
It noted that more than 5,300 deaths have been acknowledged as related to police anti-drug operations, which the PNP claims were the result of shootouts with the police by armed suspects. But the report also noted that this claim has been challenged by others who insist that the deaths were the result of execution-style killings by the police.
Aside from these deaths, the OTP also reviewed claims that there have been several other killings committed by vigilante groups linked with the police and anti-drug campaign.
While undoubtedly the report is a significant development in supporting the claim that Duterte’s anti-drug campaign led to the unlawful killing of thousands of Filipinos, mostly poor individuals who allegedly dealt with or peddled drugs, the quest to uncover the truth behind these killings still has a long way to go.
For one, the report is not yet the final outcome of the Preliminary Examination, which could result in either a recommendation for an investigation of the extrajudicial killings or closing of the case.
If any, this report is a strong indication that it is more likely than not that the OTP will ask the ICC to allow the conduct of an investigation in the Philippines. The purpose of the investigation is to gather evidence and determine the suspect responsible for the killings.
After the suspect is identified and evidence has been collected in the investigation phase, it doesn’t mean trial will ensue already at the ICC, for a Pre-Trial will have to be conducted before a three-member judge panel to determine if there is enough evidence to proceed to trial. Notably, at this stage the person under investigation is still called a “suspect” and will only be called the “accused” once trial starts.
This is how tedious an ICC case is. The prosecutors must overcome a high bar by obtaining and presenting sufficient evidence in several stages to warrant a trial of the accused. The reason for this is that oftentimes the subjects of ICC cases are leaders of sovereign countries and utmost care is being taken so as not to unduly subject a country’s leader to the inconveniences, not to mention ignominy, of an international criminal trial. ICC cases are often viewed by member states under investigation as affronts to their sovereignty.
Duterte, for example, has ordered the withdrawal of the Philippines’ membership from the ICC by claiming the investigation of his anti-drug campaign is an interference with the governance of the country. Incidentally, the ICC does not lose jurisdiction to investigate and enforce its statutes on a country by the mere withdrawal of its membership. All acts in violation of the ICC statutes, such as crimes against humanity, committed within the erstwhile member-country’s territory during its membership will remain under the jurisdiction of the ICC.
Thus, the ICC retained jurisdiction to investigate and prosecute individuals in the Philippines, such as Duterte, who may be responsible for violation of its statutes from November 1, 2011 to March 16, 2019, which is the period during which the Philippines was a member state in the ICC.
In its conclusion, the OTP said it expects to come out with a decision in the first half of 2021 on whether to ask for authorization to open an investigation on the extrajudicial killings in the Philippines.