Duterte’s war on drugs: ICC sees ‘reasonable basis’ for crime against humanity probe in Philippines
- The International Criminal Court’s chief prosecutor Fatou Bensouda is deciding whether to investigate the Philippine president’s war on drugs
- Rights groups say thousands of people have lost their lives in extrajudicial killings perpetrated by police and government forces
The office of ICC chief prosecutor Fatou Bensouda said it would decide by the first half of next year whether to open an investigation, which could potentially lead to charges and a trial of Duterte and other Philippine officials in The Hague, Netherlands.
While Duterte enjoys immunity from any suit filed in the Philippines, he would have no such immunity from the ICC.
However, presidential spokesperson Harry Roque said that the ICC no longer had jurisdiction over the Philippines because the country had withdrawn from it. Roque, a law professor, said the ICC’s effort would be a waste of money and time. “It’s up to them to do what they want but we don’t recognise the jurisdiction of the ICC.”
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The Office of the United Nations High Commissioner for Human Rights estimates more than 8,600 people have died, while the Philippine Commission on Human Rights believes the number could be as high as 27,000.
Ruben Carranza, a senior staff member of the New York-based International Center for Transitional Justice, said “the most important part of the ICC prosecutor’s report is that she agrees, with both Filipino and international activists, that crimes against humanity are being committed in Duterte’s drug war”.
“These crimes aren’t just the thousands of killings but also of torture, of crimes involving children and of rape,” Carranza added.
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The ICTJ official said that “if and when charges are filed, both direct perpetrators and indirect co-perpetrators, those who ordered and enabled the crimes, are likely to be charged. That is how Rodrigo Duterte will be charged, as an indirect co-perpetrator of murder, torture, rape and crimes against Filipino children.”
The ICC case was triggered when Filipino lawyer Jude Sabio filed a complaint against Duterte and several officials in 2017. When the ICC chief prosecutor said it would investigate the merits of the case, the Philippine government reacted with fury and announced it was pulling out of the ICC.
The ICC does not give out the death penalty but in 2012, after a three-year trial, it sentenced Congolese warlord Thomas Lubanga to 15 years’ imprisonment for war crimes involving child soldiers. Last year it sentenced Bosco Ntaganda, a leader of an armed Congolese militia, to 30 years for war crimes and crimes against humanity.
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Bensouda’s office said it had been conducting a preliminary examination of the Philippines since 2018 and was “satisfied that information available provides a reasonable basis to believe that the crimes against humanity of murder, torture and the infliction of serious physical injury and mental harm … were committed on the territory of the Philippines between at least July 1, 2016, and March 16, 2019, in connection to the war on drugs campaign”.
Senator Francis Pangilinan, chair of the senate’s justice committee, said the prosecutor’s statement wasn’t a surprise but it was “a bit troubling that it took them over four years of daily killings to find ‘reasonable basis’. Perhaps if they acted sooner, thousands of lives could have been saved”.
Etta Rosales, former chair of the Philippine human rights commission, said: “Mr Duterte thought he could evade justice by doing everything to stop the ICC, withdrawing our nation from its jurisdiction and harassing the delegations sent here. But all Mr Duterte has done is prove his fear of finally being brought under the law.”
She added: “You should be answerable to the law, Mr Duterte. All those who shed blood will find a day will come when they have to pay, and now is that time.”
Carranza said the Philippines’ withdrawal from the ICC would have no effect on the case, which he said was at its “final stage – determining admissibility”.
“It is no longer a question of whether crimes against humanity were committed but whether the prosecutor will decide if it should investigate Filipino officials,” Carranza said.
The Philippines could avoid this, Carranza said, if it managed to convince the prosecutor that Manila was conducting a “fair, serious and meaningful investigation” of the crimes.
While the Philippine justice department has recently formed a task force to investigate the drug war, Carranza said it was “obvious the Philippines is doing it to stave off an ICC investigation”.
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“Unless Duterte comes up with a credible set of criminal charges, and not just against low level perpetrators, this will not be sufficient to deter the ICC,” Carranza added.
“Regardless of how the justice department tries to claim it is investigating seriously, Duterte’s immunity under Philippine law means he will never himself be investigated by his own government. At the ICC on the other hand, there is no immunity for heads of state.”
Senator Panfilo Lacson, chair of the senate defence committee, questioned the ICC prosecutor’s statement, saying he was unsure what was meant by “reasonable basis to believe” and that it might be good only “as a press release and nothing more”.
