MANILA (UPDATE) — As the International Criminal Court (ICC) elected a new prosecutor, a Philippine-based human rights group and the relatives of drug war victims re-submitted on Saturday a third supplemental pleading accusing President Rodrigo Duterte of violating the Rome Statute when he threatened the ICC prosecutor with arrest.
ICC member states on Saturday elected British human rights lawyer Karim Khan as the new ICC Prosecutor for a 9-year term beginning in June, replacing Fatou Bensouda from Gambia.
The supplemental pleading, initially submitted late last month, was filed by rights group Rise Up for Life and for Rights and 7 individuals, through their lawyers from the National Union of Peoples’ Lawyers (NUPL), making new accusations against Duterte based on his speech in Davao City on April 13, 2018.
"You cannot exercise any proceedings here without basis. That is illegal and I will arrest you. Kaya ikaw, Ms. Fatou, huwag kang pumunta dito kasi (so, Ms. Fatou, don't come here because) I will bar you,” Duterte was quoted as saying, referring to ICC prosecutor Bensouda.
The group said his remarks violated Article 70 of the Rome Statute covering offenses, including “impeding, intimidating or corruptly influencing an official of the ICC not to perform, or to perform improperly his or her duties” and “retaliating against an official of the Court.”
According to the group, Duterte’s threat, when implemented, would constitute arbitrary detention, unlawful arrest or both under the Philippines’ Revised Penal Code.
ABS-CBN News has sought the comment of the Department of Justice on the matter.
In another occasion in March 2018, Duterte referred to Bensouda as “that black woman,” which prompted then-UN human rights chief Zeid Ra’ad al-Hussein to call for the Philippine president’s psychiatric evaluation.
Despite the Philippines’ withdrawal from the Rome Statute, the law that created the ICC, in March 2019, the group insisted the Philippines is still covered by the treaty and Article 70 will apply.
“Article 70 finds application during any phase of the proceedings, whether during the investigation, pre-trial proceedings, sentencing, or appeal. These threats having been made by reason of the OTP’s (office of the prosecutor) decision to investigate the extrajudicial killings in the Philippines, and respondent Duterte appears to be seeking to intimidate ICC officials and to retaliate against them, in contravention of Article 70 (d) and (e) of the Rome Statute,” the group said.
“Furthermore, said conduct constitutes non-cooperation and non-compliance with the Court, and thus implicates state responsibility under Article 87 (7) of the Rome Statute,” the group added.
The group also noted that other Philippine government officials insulted the ICC prosecutor shortly after the release of her yearly report on the ICC OTP’s preliminary examination activities in December 2020.
In that report, Bensouda said her office found “reasonable basis” to believe that crimes against humanity have been committed in the Philippines even as they hope to conclude their preliminary examination by mid-2021, at around the same time Bensouda would finish her term.
Palace Spokesperson Harry Roque said Bensouda was politicking while Interior Secretary Eduardo Año called the report “false, biased, and without factual and legal basis.”
In the same submission, Rise Up included the findings of the Office of the United Nations High Commissioner for Human Rights (UN-OHCHR) in its June 2020 report, which documented widespread human rights violations and persistent impunity in the Philippines.
The report said more than 8,000 people have been killed under the Philippine government’s anti-drug campaign based on official figures but other estimates place the total at 27,000.
Rise Up also alleged that the government continued its drug war despite the pandemic and worse, local government units have allegedly adopted drug war tactics to control the spread of COVID-19, citing news reports.
The UN-OHCHR report was presented to the UN Human Rights Council which decided in July last year to pass a resolution calling for support to promote human rights in the Philippines through technical cooperation and capacity-building instead of an independent international probe which international rights groups asked for.
NEW ICC PROSECUTOR
Khan, the new prosecutor, gained 72 votes from ICC’s 123-member states, beating candidates from Ireland, Spain and Italy during the second round of voting.
Only the third prosecutor in ICC’s history, Khan had worked in different roles for the prosecution, defense and as counsel for victims in different international criminal tribunals, including as prosecutor in the cases involving war crimes in former Yugoslavia and the Rwandan genocide.
At the ICC, he previously defended Kenya’s Deputy President William Ruto and the son of Libyan leader Muammar Gaddafi, Saifd Al Islam.
He is currently a special adviser to the United Nations Secretary-General heading the team probing ISIL/Da’esh for war crimes, crimes against humanity and genocide in Iraq.
Among key issues he will face at the start of his term are war crimes in Afghanistan and possible probe in occupied Palestinian terroritories following the ICC’s ruling that it has jurisdiction over the area despite Israel not being a party to the Rome Statute.
His predecessor, Bensouda, has announced intentions to open a formal inquiry into alleged war crimes in the West Bank, East Jerusalem and the Gaza Strip, occupied by Israel.
During her term, Bensouda secured convictions against Ugandan Lord’s Resistance Army commander Dominic Ongwen, who was once a child soldier, and Congelese warlord Bosco “Terminator” Ntaganda.
Bensouda’s investigations into war crimes in Afghanistan involving US troops prompted the United States to revoke her visa in April 2019 and in September last year, former US President Donald Trump issued an executive order freezing her assets and those of another ICC prosecution official, aside from visa restrictions.
The ICC has faced criticisms recently over slow proceedings, weak management and ineffective prosecutions, according to a 2019 Chatham report.