Next president ‘will have very big say’ on PH cooperation with ICC: Diokno

Anjo Bagaoisan, ABS-CBN News

Posted at Dec 16 2021 12:44 AM | Updated as of Jan 12 2022 11:14 PM

MANILA - The results of the 2022 Philippine elections will determine the country’s relationship with the International Criminal Court (ICC) and the future of its probe on the Duterte administration’s drug war, human rights lawyer and senatorial aspirant Jose Manuel “Chel” Diokno said Wednesday.

"Whoever does win the presidency in 2022 will have a very big say in whether the government will cooperate with the ICC or not,” he said. 

Diokno was the keynote speaker at an online forum organized by the DRCNet Foundation as a side event to the 20th Assembly of States Parties to the Rome Statute of the ICC in The Hague, Netherlands.

The court’s investigation into the deaths linked to the bloody anti-drug campaign as well as killings during President Rodrigo Duterte’s local government stint in Davao City has been put on hold since November.

This came after the Philippine government told ICC chief prosecutor Karim Khan it was conducting its own probe through the Department of Justice.

Despite Duterte saying he takes "full responsibility" for the drug war, his administration has insisted it would not cooperate with any outside investigation.

Diokno said this could keep on if candidates connected to or supporting Duterte will win in the May polls.

"If allies of the present administration succeed in gaining the presidency, then we can assume that they will continue with that kind of policy. On the other hand, if members of the opposition succeed, then they will probably take a more open stance,” he said.

He added that a change in stance of a 2022 presidency to pursuing a full-scale probe into the killings could also lead to the ICC treating the Philippines favorably. 

"If a new admin takes over that exhibits a genuine willingness to really prosecute and go after and punish those responsible within the Philippines, then I think the principle of complementarity will move the ICC to allow the government of the Philippines to continue with those prosecutions,” Diokno said.

"In the Philippines so much power is vested in the president that just by any words, not even a directive, he or she could either hinder or promote a genuine investigation of the criminal events in the country."

Diokno, who is endorsed by the 1Sambayan coalition, also commented on progressive or opposition candidates taking seats in the Senate.

"If the balance does shift, it may even be possible to rejoin the International Criminal Court, depending on who is elected as well,” he said.

"Whether there is a shift or not, anyone who is elected in the Senate who carries a progressive stance would be able to have a strong voice insofar as the Filipino people are concerned.”

CAN PH CONDUCT IMPARTIAL PROBE?

Lawyers’ group Free Legal Assistance Group (FLAG), which Diokno chairs, has joined calls by rights groups for the ICC to lift its suspension of its probe in the killings.

"Is the criminal justice system in the Philippines capable of genuinely conducting an impartial investigation?” Diokno asked. 

Diokno said several factors affect this capability.

One was the threat faced by judges of being included in narco-lists of suspected drug coddlers.

He also cited the ouster of former Supreme Court chief justice Ma. Lourdes Sereno affecting the independence of the judiciary.

More so, he said majority of the posts in the Supreme Court, as well as the Ombudsman, the Prosecutor-General, and the Commission on Human Rights will be made up of Duterte appointees when his term ends.

"If we are talking of an independent investigation by government officials in the Philippines, I believe the data will speak for itself.” 

Human Rights Watch (HRW) earlier called on the ICC to continue with its probe for the sake of the victims of the drug war, calling the Philippine government’s request to defer the probe a “delaying tactic”.

Elizabeth Evenson, associate director of HRW’s International Justice Program, said the ICC prosecutor could still find ways to continue its probe despite the suspension.

"Even though the investigation has been temporarily suspended, The ICC treaty does provide an opportunity for the prosecutor to get permission if there are investigative opportunities--if there's a risk that evidence would be lost--to be able to carry out some investigative opportunities,” Evenson said.

"So the hands of the office of the prosecutor are not entirely tied. That of course does not go to the issue of access which is in the control of the government itself.” 

The challenge remains, Diokno said, of gaining access to the government's records of the killings.

Duterte barred the released of other cases due to national security concerns, leading to only 52 cases included in the probe of the Department of Justice.

The Philippine government officially lists more than 6,000 drug suspects killed in anti-narcotics operations over the past 5 years.

Human rights organizations estimate the total number to be in the tens of thousands, including so-called vigilante killings.

Former Italian senator Marco Perduca, who also spoke at the forum, emphasized the ICC as the “most appropriate venue” for discussing human rights issues.

"We believe that the reputation of the ICC or the reputation of international mechanisms that concern human rights and violations of international humanitarian law are at stake here,” Perduca said.

"We need to insist on the need to look at drug policies through the lens of human rights and through the lens of the international humanitarian law because unfortunately, in many parts of the world these things continue to happen despite the fact that the level of violence--if you take wars aside--all over the world is going down.”