MANILA, Philippines — The International Criminal Court will mount a “preliminary examination” into alleged extrajudicial killings associated with President Rodrigo Duterte’s war on drugs, Malacañang confirmed Thursday, February 8.
But presidential spokesman Harry Roque, who announced this development at a press briefing, stressed that this did not constitute a case yet and described the first step in determining whether the ICC will take cognizance of accusations of crimes against humanity against Duterte, “as a waste of the court’s time ad resources.”
But the human rights group Karapatan hailed the ICC move, calling it “a positive step towards establishing accountability and finding justice for victims of the drug war and their families.”
“Such independent investigations should be conducted in the light of the stubborn refusal of Duterte administration to be subjected to scrutiny,” it added.
Roque said the Philippine mission in The Hague “was informed that the Office of the Prosecutor of the International Criminal Court is opening a preliminary examination on the alleged acts associated with the campaign against illegal drugs covering the period of July 2016.”
Two communications have been handed in to the ICC, the first by lawyer Jude Sabio, which is based on the allegations of self-confessed “Davao Death Squad” member Arturo Lascañas that Duterte ordered hundreds of killings while still mayor of the Mindanao city, the second by Senator Antonio Trillanes IV and Magdalo Representative Gary Alejano.
Trillanes said the ICC decision “should jolt Duterte into realizing that he is not above the law.”
“More importantly, this is the first step for the victims’ families’ quest for justice,” he added.
Roque said he and Duterte met on the matter for two hours Wednesday night.
Duterte, he stressed, “welcomes this preliminary examination because he is sick and tired of being accused of crimes against humanity” and saw this as “an opportunity for him to prove” that the accusations against him do not fall within the ICC’s jurisdiction because of the principle of complimentarity, which means only when domestic courts cannot or will not take cognizance of the cases can it be elevated to the international court, and “because only crimes which are of the gravest nature, (the) gravest affront against the international community, should be subject to the jurisdiction” of the ICC.
Roque also dismissed the view that the thousands of deaths in the war on drugs constituted a crime against humanity “because the war against drugs is a lawful, legitimate operation” and “a lawful use of force” against a “threat to national security” and therefore “cannot be characterized as an attack against (the) civilian population because they are civilians.”
Opposition lawmakers, however, see a “ray of hope” that the ICC investigation would exact accountability on President Rodrigo Duterte for his bloody anti-illegal drug campaign.
“The ICC, stepping in, is a ray of hope amid the compromised rule of law under this administration,” Magdalo partylist Representative Gary Alejano said.
“I am confident on the communication we sent to the ICC and strongly believe that President Duterte and those who perpetuate and defend this policy of killing should be held accountable before the law. This initial step of the ICC is also the first step towards bringing justice to the families and all the victims of the war on drugs,” he added.
Alejano and Senator Antonio Trillanes IV last year filed a complaint against Duterte before the ICC and appealed to the international body to conduct an investigation.
In March last year, Alejano also filed an impeachment complaint against Duterte over the killings linked to the drug war, but it was dismissed by the justice committee of the House of Representatives.
Akbayan Rep. Tom Villarin and Sarah Elago also welcomed the probe.
“It is a welcome development and gives hope to thousands of EJK victims that finally justice will be served,” Villarin said.
“This will also hold President Duterte and other top officials involved in the bloody war against drugs accountable as well as it gives us an opportunity to implead other enablers of EJKs, including possibly Presidential Spokesman Harry Roque,” he added.
Elago said the ICC investigation would be a challenge to local and international organizations to “actively participate and to lend their findings for a thorough and objective investigation.
Below is an excerpt from the Statement of the Prosecutor of the International Criminal Court, Mrs Fatou Bensouda, on opening Preliminary Examinations into the situations in the Philippines and in Venezuela:
Since 2016, I have closely followed the situations in the Republic of the Philippines (“the Philippines”) and in the Bolivarian Republic of Venezuela (“Venezuela”). Both countries are States Parties to the Rome Statute.
Following a careful, independent and impartial review of a number of communications and reports documenting alleged crimes potentially falling within the jurisdiction of the International Criminal Court (“ICC” or “the Court”), I have decided to open a preliminary examination into each situation.
The preliminary examination of the situation in the Philippines will analyse crimes allegedly committed in this State Party since at least 1 July 2016, in the context of the “war on drugs” campaign launched by the Government of the Philippines. Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.
The preliminary examination of the situation in Venezuela will analyse crimes allegedly committed in this State Party since at least April 2017, in the context of demonstrations and related political unrest. In particular, it has been alleged that State security forces frequently used excessive force to disperse and put down demonstrations, and arrested and detained thousands of actual or perceived members of the opposition, a number of whom would have been allegedly subjected to serious abuse and ill-treatment in detention. It has also been reported that some groups of protestors resorted to violent means, resulting in some members of security forces being injured or killed.
Under the Rome Statute, national jurisdictions have the primary responsibility to investigate and prosecute those responsible for international crimes. I emphasise that a preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute. Specifically, under article 53(1) of the Rome Statute, I, as Prosecutor, must consider issues of jurisdiction, admissibility and the interests of justice in making this determination.
In conformity with the complementarity principle, which is a cornerstone of the Rome Statute legal system, and within the framework of each preliminary examination, my Office will be engaging with the national authorities concerned with a view to discussing and assessing any relevant investigation and prosecution at the national level.
In the independent and impartial exercise of its mandate, my Office will also give consideration to all submissions and views conveyed to it during the course of each preliminary examination, strictly guided by the requirements of the Rome Statute.
There are no statutory timelines on the length of a preliminary examination. Depending on the facts and circumstances of each situation, I will decide whether to initiate an investigation, subject to judicial review as appropriate; continue to collect information to establish a sufficient factual and legal basis to render a determination; or decline to initiate an investigation if there is no reasonable basis to proceed.
I reiterate that my Office undertakes this work with full independence and impartiality in accordance with its mandate and the applicable legal instruments of the Court. As we do, we hope to count on the full engagement of the relevant national authorities in the Philippines and Venezuela.
The ICC would have jurisdiction over genocide, crimes against humanity and war crimes if committed on the respective territories of the Philippines and Venezuela or by their respective nationals since the date when the Statute entered into force in each State, namely since 1 November 2011 in the case of Philippines, and since 1 July 2002, in Venezuela.