On June 14 2021 and on her last day in office, the chief prosecutor of the ICC, Fatou Bensouda, announced the conclusion of the preliminary examination into the Philippines and requested judicial authorisation to proceed with a formal investigation (ICC, 2021). The preliminary examination determined a “reasonable basis to believe that the Crime Against Humanity of murder has been committed” between July 1 2016 and 16 March 2019 during the government’s “war on drugs” (Ibid, para 3). If authorised, the formal investigation can investigate alleged crimes committed in the Philippines from November 1st 2011 until March 16 2019 (Singh, 2019).
Under the Duterte administration, thousands have been killed by Philippine National Police officers and unidentified “vigilantes” as part of the government’s hard-line “war on drugs”. However, without any consistent official disclosure of statistics, the exact number is unknown as contradictory numbers arise from various governmental agencies (Human Rights Watch, n.d.). UN bodies have said the death toll is at least 8,600 people but could be over “three times” this (UN, 2020, para 1).
When he assumed power in 2016, Duterte instructed police to kill anyone believed to be connected to the drug business, an action both state forces and vigilante groups have undertaken zealously (Amnesty, 2020). Indeed, in his inauguration speech Duterte urged citizens “if you know of any addicts, go ahead and kill them yourself” (Ibid, para 7). Despite this, the government denies the existence of a policy to kill individuals that use drugs and has claimed that all deaths occur during legitimate police operations (cited in OHCHR, 2020).
Nevertheless, the frequent ill-defined and ominous rhetoric used by the highest officials in command memorandums such as Circular No. 16-2016, which were released by the National Police Commission, likely emboldened the police to assume they had permission to kill (OHCHR, 2020). Additionally, known for his heedless and distasteful remarks[1], in 2018 Duterte seemingly admitted publicly that “my only sins are the extrajudicial killing” (Ellis-Petersen, 2018, para 2). Although this was later dismissed by his lawyers as merely being “playful” and “should not be taken literally” (Ibid, para 7).
A report by the Office of the United Nations High Commissioner for Human Rights (OHCHR) however, has highlighted systematic human rights violations which included killings and arbitrary detention amid a culture of “persistent impunity” (OHCHR, 2020, para 1). Furthermore, it confirmed the pattern that the victims of Duterte’s bloody campaign disproportionately affected young men within the productive age range living in urban poor communities (Ibid 2020; PhilRights, 2019). Since the demographic of those killed often represented family breadwinners, there have also been psychological and practical challenges forced upon families, particularly women and children (OHCHR, 2020).
The Legal Context
In 2018, following the announcement of a preliminary examination into possible crimes committed in the Philippines, Duterte declared that the Philippines would withdraw from the ICC “effective immediately” (Regencia, 2018, para 1). This withdrawal took effect in March 2019 and later in a speech Duterte declared the ICC “cannot acquire jurisdiction over me, not in a million years” (Petty, 2018 para 1).
Subsequently, petitions were filed in May and June 2018 challenging the legality of Duterte’s withdrawal from the ICC. However, on July 21 2021, three years on, the Supreme Court of the Philippines publicly released its March ruling which dismissed these petitions as “moot and academic” (Supreme Court of the Philippines, 2021, para 1). Yet, the ruling also affirmed that the Philippines remains obliged to cooperate with the ICC in spite of the state’s withdrawal from the Rome Statute. It was found that the withdrawal “does not discharge a state party from the obligations it has incurred as a member.” (Ramos, 2021 para 3). This decision was naturally welcomed by human rights organisations (Amnesty International, 2021).
However, on July 22, Harry Roque, the presidential spokesperson, declared the remarks represented an “obiter dictum”, a statement made by a judge that is not legally binding, and that Duterte would still not, nor could be compelled to, cooperate with the ICC (Salaverria, 2021, para 2). However, experts have underscored the Philippines is bound by Article 127 of the Rome Statute, which enshrines the obligations from the Statute for as long as a state is party to it, irrespective of any Supreme Court decision either way (Salaverria, 2021).
Challenges & Next Steps
The ICC pre-trial chamber will have to approve Bensouda’s request before the investigation can proceed and will likely be decided in the next few months (Buan, 2021). The timeline for a decision is usually around 3 months. However, in some cases this has taken substantially longer such as the case of Afghanistan which took just under 3 years. Moreover, if the case goes ahead, the court will still rely on the cooperation of member states to comply with a summons or arrest warrant against Duterte, which has caused issues in past cases (Buan, 2021).
With the 2022 elections around the corner and the constitution precluding him to run a second time, Duterte has also expressed the desire for the next President to be an ally. This has been stressed by experts as a means to ensure protection from legal cases in the future (Ranada, 2021). In addition to this, Duterte has announced that he may run instead for Vice President where, according to him, he will receive immunity from an ICC suit. However, such immunity is not reflected in the Constitution or tradition (Ibid, 2021).
Bensouda in her recent statement acknowledged the complex operational challenges that the Office will face in pursuing this investigation if it goes ahead. These include those arising from the global pandemic, the significant limitations on the ICC’S available resources, and the Office’s current heaving work commitments (ICC, 2021b). Indeed, amongst others, the ICC is currently formally investigating alleged war crimes in the Palestinian territories, which has its own inherent challenges, of which severe political opposition is one. Indeed, Karim Khan who took over Bensouda’s position in mid-June will have a full plate during his term and it remains to be seen whether he can withstand the challenges presented both within and outside the ICC.
Conclusions and Recommendations
Elected on promises to support the poor and reduce existing inequality (Wells, 2017), it is apparent Duterte has instead given rise to a culture of extrajudicial killings and human rights abuse. Indeed, Duterte used the pretext of peace as a “justificatory discourse for increased repression” (Regilme, 2021, para 1) and the Philippines continues to be the subject of extensive and widespread trafficking and the use of illegal drugs (Regilme, 2021).
in 2018 Duterte declared his anti-drugs campaign will continue to be “as relentless and chilling as on the day it began” (Conde, 2018, para 1) and for now, Duterte has said the war on drugs is far from over (Lema and Morales, 2021). As highlighted by Filipino human rights organisations, the international community must compel the Philippine government to honour its human rights obligations according to international norms and standards, using any legitimate means of engagement (PhilRights, 2019). Additionally, since the ICC as a judicial institution lacks an enforcement body and relies on the cooperation of countries, states must also work together to support the ICC’s mission in fighting for justice and against impunity, even if it is politically inconvenient to do so. This includes enforcing any subsequent summons or arrest warrants and transferring these individuals to the ICC detention centre.
By Catherine Greenacre
References:
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[1] Some recent statements include “Hitler massacred three million Jews … there’s three million drug addicts. There are. I’d be happy to slaughter them.” (Sales, 2020 para 1), and “Forget the laws on human rights” (Reuters, 2016, para 3)
By Catherine Greenacre,The European Institute for International Law and International Relations.
