President Rodrigo Duterte once threatened to have Fatou Bensouda, the Gambian lawyer and chief prosecutor of the International Criminal Court (ICC) at the Hague, arrested if she ever came to the Philippines to inquire into his government’s drug killings. Duterte had singled her out, after calling UN Secretary-General Ban Ki-moon and US President Barack Obama “sons of bitches” for signifying their own concern about the killings; he also threatened to arrest Agnes Callamard, the former UN Special Rapporteur on extrajudicial, summary or arbitrary executions, who is now the secretary-general of Amnesty International, for expressing the same concern.

Now, Bensouda has struck back. On June 15, 2021, Bensouda stepped down from the ICC post she had been holding since December 12, 2011. But on May 24, less than one month before her retirement, she filed a request with the ICC Pre-Trial Chamber (PTC) for authorization to open an investigation into the situation in the Philippines where the crime against humanity by murder may have been committed by government forces in the course of Duterte’s drug war that is said to have killed from 12,000 to 30,000 victims from July 1, 2016 to March 16, 2019. If the request is granted, Bensouda’s British successor, Karim Khan, a specialist in human rights and international law, will likely play a stellar role.

On June 14, Bensouda released to the media a 57-page redacted version of her request to the PTC. Having concluded the preliminary examination of the information earlier, Bensouda had to move to the next step — an official investigation. The prospects appear encouraging. Bensouda is known to have posted a perfect record of six requests granted out of six requests for an investigation. The investigation, if granted, will then determine whether or not a crime against humanity, as alleged, has been committed, and by whom (meaning specific persons). Under the Statute of Rome, the ICC can try international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. The law does not allow any trial in absentia, so trial will take place only if and when the ICC is able to arrest and take custody of the accused.

Assuming the investigation takes place, is able to establish that the alleged crime has been committed, and certain parties are indicted, will Duterte be one of those parties? The 57-page document does not name Duterte as responsible for any specific killing, and speaks only of his “policies” that reportedly encouraged and approved those killings. Having withdrawn from the ICC as of March 17, 2019, Duterte will not want to submit to the jurisdiction of The Hague. But as the ICC is limited to only those crimes committed between November 1, 2011 and March 1, 2019 — when the Philippines was an ICC member in good standing — Duterte may not be able to stay beyond the ICC’s reach.

Harry Roque, a human rights lawyer who now speaks as Duterte’s spokesman, has initially argued that the ICC cannot possibly get involved unless it was first shown that the Philippine legal system is not working, or that the government is unable or unwilling to investigate the killings on its own. This is precisely the contentious point. Neither the Secretary of Justice nor the Solicitor General has filed a case in court against the Philippine National Police or the so-called “vigilantes,” especially one that sought to implicate the President in any of the drug killings. Therefore, whether or not the Philippine government is able or willing to prosecute crimes under the Statute of Rome has yet to be proved.

But it can be argued that Duterte is virtually in control of the three branches of the government, including the Judiciary, and he has been able to remove an unwanted Supreme Court chief justice — Maria Lourdes Sereno — simply by having the other justices of the Court, upon a “quo warranto” petition by the Solicitor General, declare her appointment “null and void ab initio,” without going through the mandated impeachment process which, according to the Constitution, is the only means of lawfully removing a chief justice and other SC justices. Given this condition, no local case implicating the President in any crime can, in practice, be contemplated.

In withdrawing from the ICC, and insisting that the politically compromised Philippine legal system can respond adequately to the drug killings, the Duterte administration has made it abundantly clear it does not believe it could get a fair hearing and a fair verdict at the Hague. This fear may be overblown and is not borne by the empirical evidence. Since the ICC was established in July 2002, at least 45 individuals have been indicted for various crimes. Some of the most notable of these personalities have been acquitted by the court after trial. The best known of these include Dominic Ongwen, leader of Uganda’s Lord Resistance Army; Sudan’s former president Omar al-Bashir; Kenya’s president Uhuru Kenyatta; Ivory Coast president Laurent Gbagbo; and Democratic Republic of the Congo vice president Jean-Pierre Bemba.

Ongwen was found guilty of 61 crimes against humanity and war crimes, and Al-Bashir became the first sitting head of state to be indicted for genocide. But the Arab League, the African Union, the Organization of Islamic Cooperation and several governments protested the ICC decision on Al-Bashir, and he was able to travel safely to China, Nigeria, Saudi Arabia, United Arab Emirates, Egypt, Ethiopia, Kenya, Qatar, Chad, Turkey, Denmark, Djibouti, South Africa and India, without any threat of arrest. As for Kenyatta, the ICC dropped all charges against him after an extended trial; Gbagbo became the first former head of state to be acquitted by the ICC; and Bemba won his acquittal on appeal to the ICC Appeals Chamber.

Perhaps Duterte has as good a chance as Kenyatta, Gbagbo or Bemba had in an ICC proceeding. But he has to take the necessary risk, which is an enormous one, to find that out. All risks disappear if the PTC decides not to investigate. But should the PTC decide to investigate, the political risks could outweigh and overtake the judicial or legal ones. Duterte’s political adversaries, both here and abroad — who seem to be growing by the day — could seize the opportunity to try and deny him his last few months in office and his desire to propose his own daughter Sara as his possible successor in the 2022 elections. They could propose that the investigation will have rendered him not only a lameduck but much more than a dead duck that must be disposed of as quickly as possible.


The Press Room

Imbestigasyon ng International Criminal Court sa Drug War ni Duterte

June 18, 2021

Naging matunog sa balita nitong mga nakaraang araw ang ICC at ang plano nitong imbestigahan ang mga umanong “crimes against humanity” na naganap dito sa Pilipinas sa kasagsagan ng war on drugs ni Pangulong Duterte. Pero ano nga ba ang ibig-sabihin nito?

Former chief prosecutor of the International Criminal Court Fatou Bensouda said her office found “a reasonable basis to believe” the Duterte government used state security forces to “deliberately” kill 12,000 to 30,000 Filipinos between 2016 and 2019 as part of its anti-war drug campaign.

Both pro and anti-Duterte camps are reacting to this issue.

Anti-drug war advocates say it’s about time while pro-Duterte apologists say the move is politically motivated.

In this episode, we are joined by ABS-CBN Justice beat reporter Mike Navallo and Human Rights Watch Senior Researcher Carlos Conde.