How the ICC Pre-Trial Chamber decided to probe PH drug war, Davao killings

Mike Navallo, ABS-CBN News

Posted at Sep 16 2021 04:16 AM

MANILA — In no more than 41 pages came the news that families of drug war victims in the Philippines had long sought for and which Malacañang had repeatedly downplayed: the International Criminal Court will probe Philippine President Rodrigo Duterte’s war on drugs and the thousands of deaths that came with it. 

“The Chamber hereby authorises the commencement of the investigation into the Situation in the Philippines, in relation to crimes within the jurisdiction of the Court allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called ‘war on drugs’ campaign,” the ICC Pre-Trial Chamber said.

The Pre-Trial Chamber, composed of 3 judges, based its decision on almost 400 separate supporting materials submitted by former ICC Prosecutor Fatou Bensouda, which included official issuances by Philippine authorities, UN documents, investigative reports and publications of NGOs. 

It also considered the more than 200 submissions through the victims representations procedure which, it said, "corresponds" to the submissions of the Prosecutor.

An overwhelming 94 percent of the more than 1,500 individuals who approached the ICC said they support the international probe into the drug war in the Philippines.


Bensouda sought to investigate the alleged crime against humanity of murder under the Rome Statute in connection with the drug war deaths which took place in the Philippines shortly after Duterte came to power in July 2016 until the effectivity of the Philippines’ withdrawal from the Rome Statute in March 2019.

Her position: state actors played a role in the killings — whether in supposedly anti-drug law enforcement operations or in vigilante-style killings which allegedly involved individuals with ties to law enforcers.

Bensouda noted Philippine authorities never denied the killings but they claimed these were justified because victims supposedly fought back or “nanlaban” -- essentially self-defense best raised at the investigation or trial stage, although she pointed out there were facts which undermined this claim.

After citing several actual cases of alleged killings during buy-bust operations, “Tokhang,” “one-time big-time” and other official operations, the Pre-Trial Chamber agreed with the ICC Prosecutor — “members of the Philippine security forces killed persons as part of the so-called ‘war on drugs’ campaign.”

It noted conflicting statements between Philippine authorities and families of victims but while it could not yet authoritatively settle these competing claims, it said investigation is needed. 

It pointed out however that certain information disprove authorities’ claim of self-defense such as surveillance footage, witnesses’ statements or even the nature of the wounds of victims.

It raised the claim of planted evidence, citing the report by the Office of the High Commissioner for Human Rights in June 2020 that in some cases, guns in different crimes bore the same serial number.

The ICC Pre-Trial Chamber also found that killings outside police operations were committed either by law enforcers concealing their identities, by private actors paid by the police or by private individuals or groups instigated by the government's war on drugs.


The Chamber found a clear pattern of killings which, it said, could be considered an “attack” under the Rome Statute. 

That these were directed against persons associated with use and trafficking of illegal drugs also means these attacks “targeted a civilian population.”

Both are key contextual elements of a crimes against humanity charge.

The ICC Pre-Trial Chamber said the facts available do not show the drug war killings were legitimate anti-drug law enforcement operations as these did not involve a formal or reviewable decision-making system and did not give persons who were killed the opportunity to participate in the process or to contest the claims made against them.


The Chamber found basis to say these attacks were “widespread” even if based on official figures alone.

Philippines authorities reported more than 5,000 persons killed during police anti-drug operations but rights groups place the number of casualties of the drug war at anywhere between 12,000 to 30,000.

The attacks were also allegedly “systematic” and pursuant to a State policy, the Pre-Trial Chamber said.

It quoted statements from President Duterte himself dating back from his time as Davao City mayor up to the time he became president which encouraged killings of individuals linked to drugs.

Former Philippine National Police chief, now Senator Ronald dela Rosa is also said to have made similar statements.

But beyond the statements, the Chamber found “a clear link between the killings and the government’s formal anti-drug campaign,” citing a 2016 PNP command memorandum issued on Duterte’s first day in office which called for “neutralizing” of illegal drug personalities, which Bensouda believed, based on records of police insiders, is a euphemism for “killing.”

“In this context, it is significant that a marked increase in killings of persons allegedly involved with drugs was reported following the assumption of the presidency by Rodrigo Duterte and issuance of CMC No. 16-2016.212,” it said. 

“Further, the reduction of the number of killings following the two instances of the suspension of the so-called ‘war on drugs’ campaign in January-March 2017 and again in October-December 2017 lend support to the proposition that the killings occurred in execution of, or because of, the official policy,” it added.

For contextual purposes, the Chamber said, the drug war killings in Davao between 2011 and 2015 involving around 385 victims is relevant because it tends to show that groups of local police officers and vigilantes were behind the killings of mostly poor young men suspected of drug peddling or petty crimes.

“According to available information, some of the persons involved appear to be the same. In fact, there is information that some police officers were transferred from Davao to Manila upon Rodrigo Duterte’s assumption of the Presidency,” it said, noting similarities in the way the killings were conducted as well.

But the ICC Pre-Trial Chamber went beyond the crime against humanity of murder charge and authorized the ICC Prosecutor to include in the probe any crime within the jurisdiction of the ICC as long as this were committed within the Philippines from November 1, 2011 to March 16, 2019 and in the context of the drug war.


The Chamber’s decision to authorize the ICC probe came about 3 months since the Bensouda stepped down from office and announced her request to seek authorization for the probe on the Philippine drug war.

The development was warmly welcomed by Philippine-based rights groups who have assisted drug war victims.

BAYAN Secretary General Renato Reyes, Jr. called it an "important step towards justice and accountability" while Cristina Palabay of KARAPATAN said “Duterte and his cohorts should be made accountable for these crimes."

iDEFEND, among the first groups to condemn President Duterte's drug war in 2016, said in a statement that the ICC Pre-Trial Chamber decision shows the gravity of the crimes that were committed. 

“Duterte along with his co-accused henchmen of the war on drugs will be facing justice, and the relatives of victims of extrajudicial killings and other atrocious human rights violations would have a real chance of regaining their dignity,” it said.

"At this point it is in the best interest of the government to fully cooperate with the ICC, to avoid any perception that it is shielding a criminal from international justice,” the group added.


Malacañang had repeatedly said it will not cooperate with the ICC probe, calling the proceedings politicized and insisting that the international tribunal no longer has jurisdiction over the Philippines since it has withdrawn from the Rome Statute.

That contention merited only a three-paragraph rebuttal from the ICC Pre-Trial Chamber.

“While the Philippines’ withdrawal from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 March 2019,” it said.

“This is in line with the law of treaties, which provides that withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination,” it added, citing as well the cases of Burundi and Abd-Al-Rahman decided by the ICC Pre-Trial Chamber affirming the rule.

Malacañang has yet to respond to a new request for comment.

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