By: DJ Yap, Krixia Subingsubing, Philippine Daily Inquirer / December 16, 2020
Critics of President Rodrigo Duterte on Tuesday said International Criminal Court (ICC) prosecutor Fatou Bensouda’s report that there was a “reasonable basis to believe” that he and his subordinates committed crimes against humanity in the bloody war on drugs meant they could soon be made to answer for the thousands who were killed.
“The time for reckoning is near for Mr. Duterte, his cohorts, and enablers,” said former Sen. Antonio Trillanes IV, one of the President’s most strident critics.
Trillanes and former Magdalo party list Rep. Gary Alejano filed in June 2017 a “communication” or complaint in the ICC, urging the international tribunal to investigate Mr. Duterte for crimes against humanity as the government allegedly had shown no interest in holding him accountable.
“Duterte may try to ignore the jurisdiction of ICC over him, but deep inside he knows that he cannot get away from this one,” Trillanes said. “Having profiled Duterte, I am sure he is trembling in fear.”
Bayan Muna Rep. Carlos Zarate sent out a similar message. “To the violators of human rights, you have been forewarned. Nothing is forever; not even impunity,” he said.
“We hope that the Office of the Prosecutor of the ICC will seek authorization to open an investigation in the Philippines in the first half of 2021 or earlier if they can, so as to focus the international limelight in the horrid human rights situation in the country and help to put a stop to it,” Zarate said.
In a report on Tuesday, Bensouda said her office, which had undertaken a “preliminary examination” of several complaints of crimes against humanity against Mr. Duterte, “anticipated reaching a decision on whether to seek authorization to open an investigation by the first half of 2021.”
“The office is satisfied that information available provides a reasonable basis to believe that the crimes against humanity …, torture … and the infliction of serious physical injury and mental harm as other inhumane acts … were committed in the territory of the Philippines between at least 1 July 2016 and 16 March 2019 in connection to the war on drugs campaign launched throughout the country,” her report said.
Presidential spokesperson Harry Roque insisted that Mr. Duterte did not commit any crime against humanity.
Roque believes that the effort to investigate the President further will not succeed, citing the ICC panel’s decision in April last year to reject Bensouda’s request to probe possible war crimes and crimes against humanity in Afghanistan, including those allegedly committed by US soldiers and intelligence agents.
Afghanistan is an ICC member, but the United States is not.
“So, we are confident because, as we said before, that [ruling] will [be] applied by the ICC—their ruling in one case—on why initiate a case if the country that was an ICC member would not cooperate?” Roque said.
The Philippine Drug Enforcement Agency said 5,942 people were killed in the drug war from July 2016 to Oct. 31 this year. Human rights watchdogs believe the figure could be nearly five times more.
The human rights group Karapatan said 328 “noncombatants,” including 185 human rights activists, were killed in the government’s counterinsurgency program from July 2016 to August this year.
Trillanes and Alejano filed their complaint in the ICC two months after Jude Josue Sabio, lawyer for confessed Davao Death Squad hit man Edgar Matobato, filed his against Mr. Duterte and 11 of his allies.
Sabio accused the President and the others of crimes against humanity and “continuing [the] mass murder” which began when Mr. Duterte was mayor of Davao City.
Resenting the “preliminary examination” of the allegations against him by Bensouda, the President ordered the withdrawal of the Philippines from the Rome Statute, the treaty that created the ICC, in March 2018. The withdrawal was formalized on March 17, 2019.
In August 2018, a group of activists and the families of eight victims in the drug war filed a separate complaint in the ICC, accusing the President of murder and also of crimes against humanity.
In January this year, Sabio announced that he was withdrawing his complaint, claiming that it was just part of the “political propaganda” of the opposition led by the Liberal Party (LP).
Why only now?
Bensouda, however, said Sabio’s complaint could not be withdrawn because her office had “an obligation to register whatever it receives.”
Sen. Francis Pangilinan was not surprised by the ICC prosecutor’s latest report but said it was “troubling” that it took over four years to find “reasonable basis” for the allegations against Mr. Duterte.
“Perhaps if they acted sooner, thousands of lives could have been saved,” said Pangilinan, the LP president.
Sen. Risa Hontiveros said Bensouda’s “reasonable basis” was “the understatement of the last [four] years,” but it offered “new hope for justice and humanity.”
“Let us not forget that our innocent youth, like Kian (delos Santos), are helpless victims of this administration’s disproportionate response to what is actually a public health concern,” she said.
Delos Santos was the 17-year-old boy who was murdered in a drug operation in Caloocan City in August 2017. Three officers were convicted of murder for his death.
Ping: A PR, nothing more
Senate President Vicente Sotto III dismissed the ICC prosecutor’s finding. “That’s what [she] believes. Some believe otherwise,” he told reporters in a Viber message.
Sen. Panfilo “Ping” Lacson, a former national police chief, said Bensouda’s report for now “may only be good as a press release and nothing more.”
Under the ICC statute, he said, “reasonable grounds to believe is considered as an ‘unreasonably unclear evidentiary threshold.’”
He noted that to get the ICC’s permission to proceed with her investigation, Bensouda must prove that the criminal justice system in the Philippines was not functioning, “or at least has fallen short in prosecuting law enforcement agents who have allegedly committed the crimes against humanity in relation to the bloody drug war initiated by the President.”
International law professor Romel Bagares said Bensouda’s preliminary examination would determine whether there was basis to request the ICC’s pretrial chamber to proceed with a formal preliminary investigation.
If that happens, the President and the key officials behind his brutal war will face formal charges.
This was the first time the ICC prosecutor declared that it had “reasonable basis” to believe that international crimes were committed when the Philippines was still a party to the Rome Statute.
It also indicates that Bensouda is deciding on the admissibility or complementarity question, or whether the courts in the Philippines are “unable or unwilling to prosecute crimes over which the ICC has jurisdiction,” Bagares said.
Bensouda reported that the government has initiated only a “limited number of prosecutions” and provided “sporadic updates” in relation to killings committed under the drug war. This includes the conviction of the three Caloocan policemen in the murder of Delos Santos, the only conviction in relation to the drug war.
She added that her office was looking closely at the Department of Justice’s interagency task force that was reinvestigating drug war-related deaths. —WITH REPORTS FROM JEROME ANING, JULIE M. AURELIO AND INQUIRER RESEARCH INQ
