ICC prosecutor asks to continue probe on Philippines’ war on drugs

The prosecutor of the International Criminal Court (ICC) has requested a pre-trial chamber to authorize the resumption of the investigation into the war on drugs in the Philippines under President Rodrigo Duterte.

In a 53-page resolution, ICC prosecutor Karim Khan on Friday said the Philippine government had not demonstrated that it investigated or was investigating its nationals or others in connection with the series of killings attributed to the anti-drug campaign.

The ICC Office of the Prosecutor in November 2021 temporarily suspended its investigation into the alleged crimes against humanity after the Philippine government requested the ICC to defer to its investigation of its nationals.

The suspension came just two months after the ICC's Pre-Trial Chamber 1 granted in September 2021 then-Prosecutor Fatou Bensouda's June 14 request to probe crimes "allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called 'war on drugs' campaign."

‘No probe at higher echelons’

“Notably, the Philippine government makes no reference at all to any investigation into crimes committed before July 2016, nor to any investigation into crimes other than murder—and, even then, only murders allegedly carried out in police operations, as opposed to murders allegedly carried out in other relevant circumstances,” Khan said in his request to the chamber.

“The Philippine government does not appear to be investigating whether any of the alleged crimes were committed pursuant to a policy or occurred systemically, or whether any person in the higher echelons of the police or government may be criminally responsible,” he added.

“For these reasons alone, the Court should not defer to the  Philippine government’s investigation,” Khan said.

Khan said information and communications submitted to the prosecution by civil society organizations indicated the need for an ICC investigation.

‘Culture of impunity’

He cited the Commission on Human Rights' recent report on its investigation on drug-related killings from 2016 through 2021, which found that the government “failed in its obligation to respect and protect the human rights of every citizen, in particular, victims of drug-related killings.”

The CHR also mentioned a culture of impunity that shielded perpetrators from being held to account.

"Similar views and concerns have been communicated to the Prosecution by non-governmental organizations and groups representing victims, all supporting the resumption of the Court’s investigation," Khan said.

"Without such an investigation, the prosecution submits that there is a real risk that Rome Statute crimes committed in the Philippines will go un-investigated and unpunished," he added.

Khan asked the chamber to:

• issue an order, on an expedited basis, setting out the procedure in deciding his request;
• receive more observations it considered appropriate from victims and the Philippine government, according to an expedited schedule; and
• authorize the resymption of the court's investigation in the situation in the Philippines, notwithstanding the deferral request.

GMA News Online is trying to get a comment from Malacañang and the Department of Justice and will post their side once available.

DOJ review

The DOJ has reviewed 352 cases where individuals have been killed during the police's anti-drug operations since 2016.

In October 2021, the agency published its review of 52 drug war cases that showed that several suspects that were killed after allegedly firing first at police officers were negative for gunpowder nitrates.

Reacting to a Reuters report on allegedly mismatched death certificates, Justice Secretary Menardo Guevarra said these cases were part of the DOJ review. 

In a letter to Khan dated November 10, 2021,  Ambassador Eduardo Malaya requested the deferral saying the Philippine government had been looking into the alleged abuses.

"[T]he Philippine government hereby requests that the Prosecutor defer to Philippine government's investigations and proceedings," Malaya said.

"The Philippine government is likewise keen on ensuring the successful prosecution of cases that have been filed or may be filed in court against erring PNP members and others within its jurisdiction,” he added.

“If the prosecution fails to discharge its burden of proving guilt beyond reasonable doubt, the Philippine courts, pursuant to their constitutional mandate, will not hesitate to acquit the accused,” Malaya said.

Duterte has repeatedly said that he would only face a Philippine court and if convicted, would choose to be imprisoned in Muntinlupa.

“I will not allow myself to be judged by white people in another place outside of my country,” Duterte said in his speech during the opening of the Siargao Island Sports and Tourism Complex on November 6, 2021. 

‘Information insufficient’

Khan in his pleading dated June 24, stressed that the information the Philippine government presented were “insufficient” despite his request for further substantiation.

“The Prosecution notes that the dialogue with the State envisaged by article 18 of the Statute, and any litigation arising from the Deferral Request, should be conducted and resolved expeditiously,” Khan said.

“A prompt resolution of the Deferral Request is vital to ensuring that there is no impunity for the crimes allegedly committed in the Philippines,” he added.

Khan recognized the interests of the victims may be affected due to the legal processes resulting from his request.

He asked the pre-trial chamber to allow victims to make written submissions on issues arising from his request through their legal representatives and/or the ICC Office of Public Counsel for Victims within a limited period. —NB, GMA News