Probing Duterte: what the ICC should see in PH’s justice system

After the prosecutor of the International Criminal Court (ICC) cleared the initial stages of the possible indictment of President Duterte for crimes against humanity, the country’s criminal justice system must be considered as working against the perpetrators of human rights violations and illegal killings in their war. on drugs to avoid investigation, according to a lawyer familiar with court processes.

International law professor Romel Bagares said Wednesday that ICC prosecutor Fatou Bensouda was probably completing the third stage of the preliminary examination of the complaints against Duterte.

At this stage, his office will determine whether Philippine courts and prosecutors are unable or unwilling to prosecute crimes over which the ICC has jurisdiction, Bagares said.

The government revitalized a task force led by the Department of Justice (DOJ) earlier this year to re-investigate the thousands of people killed in the war on drugs.

But Bagares warned that the country would not overcome the obstacle of the ICC’s complementarity if only a “symbolic few” were prosecuted for the nearly 6,000 killed in the government’s anti-drug campaign.

He said such a small number would be considered “unwillingness or inability to prosecute” under ICC jurisprudence. So far there is only one successful prosecution: the conviction of three policemen for the murder of Kian de los Santos, 17, in the city of Caloocan in August 2017.

“I am afraid that merely conducting case reviews [by the interagency task force] it is not enough for the government, ”said Bagares. “At this stage, four years after the war on drugs, with approximately 6,000 cases, a successful prosecution is not convincing.”

Bensouda reported Tuesday that he found “reasonable grounds to believe” that crimes against humanity were committed in Duterte’s brutal war on drugs.

He said his office “anticipated reaching a decision on whether to seek authorization” to open a full investigation into the allegations against Duterte by the first half of 2021.

Specific cases

The Bensouda report shows that the ICC has moved from general cases to specific cases – murder, torture, mental damage and other inhumane acts – in the war on drugs.

“These are the same cases that the Philippine authorities must show are being investigated or prosecuted effectively now, with the same group of suspects that the Prosecutor’s Office (Prosecutor’s Office) is analyzing,” Bagares added.

Under ICC statutes, “reasonable basis to believe” parallels “reasonable basis to believe,” which is the standard of probable cause evidence under Philippine law, according to Edre Olalia, president of the National Union of Lawyers of the United States. Towns.

Should Bensouda’s preliminary examination of alleged crimes against humanity from July 2016 to March 2019 proceed to a formal preliminary investigation, Duterte and key officials involved in his brutal war on drugs could face formal charges. of international crimes.

It is likely that Bensouda’s office was simply “waiting for what the interagency working group can show” for the third stage, Bagares said.

He said the fourth and final stage before an indictment would be to determine whether opening a formal investigation was in the interest of justice.

Once an application is filed with the ICC’s Pre-Trial Chamber (PTC), arrest warrants can be issued against the president and the main executors of the war on drugs, Bagares said.

Rules not tested

The Philippines can still convince the ICC not to authorize an investigation, he said.

According to the ICC rules as yet unproven, at this stage the Philippines, although it has already withdrawn from court, can still choose to challenge admissibility within 30 days of notification by the Prosecutor’s Office, informing the ICC he’s actually investigating the crimes, ”Bagares said.

But Manila must do this before the PTC decides to authorize an investigation, “otherwise the investigation will continue,” he said.

Bagares teaches international law at the University of the Philippines Lyceum and is the lead counsel for the Philippine Coalition for the International Criminal Court, the group that questioned Manila’s withdrawal from the Rome Statute, which created the ICC, in the Supreme Court.

Panel sees ‘propaganda’

Presidential legal advisor Salvador Panelo rejected Bensouda’s finding that he had a reasonable basis to believe that crimes against humanity were committed in the country.

“The Philippine government does not sponsor any illegal act that could result in murder or violent activity. Nor does it allow any generalized or systematic attack directed against any civilian population, “he said.

“Our administrative authorities can and are willing to prosecute, as they have prosecuted, any alleged crime against humanity in our jurisdiction. Therefore, our judicial system is robust enough to carry out criminal proceedings before the courts of justice, “he added.

He said that the Bensouda report was only “political propaganda” against the president and was irrelevant and immaterial because the ICC had no jurisdiction over the country as the Rome Statute was not published correctly in the Philippines and that Manila had formally withdrawn from the treaty. .

Panelo pointed out that Bensouda’s own report stated that his office simply anticipated reaching a decision on whether to seek authorization to open an investigation.

“Declarations of celebration, therefore, coming from the enemies of the administration [are] premature and funny, ”he said, referring to warnings from critics that Duterte’s“ doomsday ”was fast approaching.

PDEA chief strikes opposition

Wilkins Villanueva, head of the Philippine Drug Control Agency, claimed on Wednesday that members of the political opposition provided incorrect information to the ICC and fabricated data.

“They are simply doing this to put a bad light on the administration, so that they can have a chance in the next elections, since at this moment their chances seem bleak,” Villanueva said.

He also claimed that the ICC leadership was under pressure to focus on countries outside the African continent.

“His head is African and I heard that he wants to run for office in his home country, but his critics have criticized him only for prosecuting African nations. [so that could be why they’re looking at the Philippines]”Villanueva said.

Chile Eboe-Osuji, president of the ICC is from Nigeria, while Bensouda is from the Gambia. —WITH REPORTS FROM JEROME ANING AND PATRICIA DENISE M. CHIU

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