ICC prosecutor seeks judicial nod to start probe on PH situation amid 'war on drugs'

Mike Navallo, ABS-CBN News

Posted at Jun 15 2021 12:31 AM

MANILA — Outgoing International Criminal Court Prosecutor Fatou Bensouda has requested for judicial authorization to proceed with investigation on the situation in the Philippines.

“Today, I announce that the preliminary examination into the situation in the Republic of the Philippines ("the Philippines") has concluded and that I have requested judicial authorization to proceed with an investigation,” Bensouda said in a statement released by the ICC on Monday, a day before her term ends.

“On the basis of that work, I have determined that there is a reasonable basis to believe that the crime against humanity of murder has been committed on the territory of the Philippines between 1 July 2016 and 16 March 2019 in the context of the Government of Philippines ‘war on drugs’ campaign,” she added.

Under ICC rules, a prosecutor shall request for authorization from the Pre-Trial Chamber if there is reasonable basis to proceed with an investigation.

Bensouda revealed she filed the request for judicial authorization on May 24 and released on Monday a public redacted version of the request.

The public redacted version is 57 pages long and contained strongly-worded findings.

“Information obtained by the Prosecution suggests that state actors, primarily members of the Philippine security forces, killed thousands of suspected drug users and other civilians during official law enforcement operations. Markedly similar crimes were committed outside official police operations, reportedly by so-called 'vigilantes', although information suggests that some vigilantes were in fact police officers, while others were private citizens recruited, coordinated, and paid by police to kill civilians,” it said.

“The total number of civilians killed in connection with the WoD between July 2016 and March 2019 appears to be between 12,000 and 30,000,” it added.

Bensouda said the extrajudicial killings perpetrated across the country, “appear to have been committed pursuant to an official State policy of the Philippine government.” 

“Police and other government officials planned, ordered, and sometimes directly perpetrated extrajudicial killings. They paid police officers and vigilantes bounties for extrajudicial killings. State officials at the highest levels of government also spoke publicly and repeatedly in support of extrajudicial killings, and created a culture of impunity for those who committed them,” the request said.

Bensouda also included in the request for investigation the events in Davao since 2011, noting that the same types of actors also allegedly committed strikingly similar crimes in the city and region of Davao, starting in 1988 and continuing through 2016.

However the ICC can only cover the period during which a State is a party to the Rome Statute.

Bensouda also asserted the ICC retains jurisdiction over the crimes despite the Philippines’ withdrawal from the Rome Statute effective March 2019.

The preliminary examination on the situation in the Philippines started on February 8, 2018, prompted by several communications filed by several organizations from the Philippines concerned over the human rights situation in the country, particularly with respect to thousands of deaths in connection with President Rodrigo Duterte’s war on drugs.

It covered the period from the President’s first day in office on July 1, 2016 up to the time the Philippines’ withdrawal from the Rome Statute, which created the ICC, took effect on March 16, 2019.

While clarifying that the ICC Office of the Prosecutor does not take a position on the Philippines’ internal policies and initiatives on dealing with psychoactive substances, it said it acted according to its mandate.

Aside from killings which it considered “murder,” Bensouda also said her office “received information related to allegations of torture and other inhumane acts, and related events as early as 1 November 2011, the beginning of the Court's jurisdiction in the Philippines, all of which we believe require investigation.”

Murder and torture are among the acts listed under “crimes against humanity,” one of the 4 serious crimes over which the ICC has jurisdiction, aside from genocide, war crimes and the crime of aggression.

But for murder and torture to fall under the jurisdiction of the ICC, it has to be a “widespread or systematic attack directed against the civilian population.”

Rights groups who have lobbied for ICC to investigate the killings in the Philippines have argued that the thousands killed under war on drugs in the country are more than enough to warrant an international probe — more than 6,000 based on official figures but more than 30,000 according to estimates of rights groups.

But the ICC can only step in if “the State is unwilling or unable genuinely to carry out the investigation or prosecution” — or the issue of admissibility.

In her request, Bensouda said the Prosecution has determined issues of admissibility and interests of justice and “has concluded that potential cases which would likely arise from an investigation into the situation would be both admissible and sufficiently grave to justify further action by the Court.” 

“The Prosecution has identified no substantial reason to believe that an investigation would not be in the interests of justice,” she said.

Bensouda’s successor, Karim Khan, is expected to be sworn in on Wednesday, June 16.

In her statement, Bensouda said she has discussed turnover of work with her successor Karim Khan, due to take office on June 16. These discussions include operational challenges arising from continuing pandemic, severe limitations on ICC's available resources, and current heavy work commitments.