Probing Duterte: What ICC must see in PH justice system

After the prosecutor of the International Criminal Court (ICC) had cleared the initial stages in the possible indictment of President Duterte for crimes against humanity, the country’s criminal justice system must be seen to work against perpetrators of human rights violations and illegal killings in his war on drugs so he could avoid investigation, according to a lawyer familiar with the tribunal processes.

International law professor Romel Bagares on Wednesday said ICC Prosecutor Fatou Bensouda was likely wrapping up the third stage of the preliminary examination of the complaints against Mr. Duterte.

At this stage, her office will determine whether the courts and the prosecutors in the Philippines are unable or unwilling to prosecute crimes over which the ICC has jurisdiction, Bagares said.

The government revitalized earlier this year a task force led by the Department of Justice (DOJ) to reinvestigate the thousands killed in the drug war.

But Bagares warned that the country would fail the ICC’s complementarity hurdle if only a “token few” were prosecuted for the close to 6,000 killed in the government’s antidrug campaign.

He said such a small number would be considered “unwillingness or inability to prosecute” under ICC jurisprudence. There is so far only one successful prosecution—the conviction of three police officers for the murder of 17-year-old Kian de los Santos in Caloocan City in August 2017.

“I’m afraid mere conduct of case reviews [by the interagency task force] won’t cut it for the government,” Bagares said. “At this stage, four years into the drug war, with 6,000 or so cases, one successful prosecution does not convince.”

Bensouda reported on Tuesday that she found “reasonable basis to believe” that crimes against humanity were committed in Mr. Duterte’s brutal drug war.

She said her office “anticipated reaching a decision on whether to seek authorization” to open a full investigation of the allegations against Mr. Duterte by the first half of 2021.

Specific cases

Bensouda’s report shows that the ICC has moved from general to specific cases—murder, torture, mental harm and other inhumane acts—in the drug war.

“These are the same cases that Philippine authorities need to show are being effectively investigated or prosecuted now, with the same set of suspects that the OTP (Office of the Prosecutor) is looking at,” Bagares added.

Under ICC statutes, “reasonable basis to believe” is parallel to “reasonable ground to believe,” which is the standard of evidence of probable cause under Philippine law, according to Edre Olalia, chair of the National Union of Peoples’ Lawyers.

Should Bensouda’s preliminary examination of alleged crimes against humanity from July 2016 to March 2019 proceed to a formal preliminary investigation, Mr. Duterte and the key officials involved in his brutal drug war may be formally charged with international crimes.

It’s likely Bensouda’s office was just “waiting for what the interagency task force is able to show” for the third stage, Bagares said.

He said the fourth and final stage prior to an indictment would be to determine whether opening a formal probe was in the “interest of justice.”

Once a request is filed with the ICC pretrial chamber (PTC), arrest warrants may be issued against the President and the chief implementers of the drug war, Bagares said.

Untested rules

It’s still possible for the Philippines to convince the ICC PTC not to authorize an investigation, he said.

“Under yet untested ICC rules, at this stage, the Philippines, although it has already withdrawn from the court, may still opt to contest admissibility within 30 days of notice from the OTP, by informing the ICC that it is in fact investigating the crimes,” Bagares said.

But Manila must do this before the PTC decides to authorize an investigation, “otherwise, the investigation will proceed,” he said.

Bagares teaches international law at Lyceum of the Philippines University and is the lead counsel for the Philippine Coalition for the International Criminal Court, the group that questioned Manila’s withdrawal from the Rome Statute, which created the ICC, in the Supreme Court.

Panelo sees ‘propaganda’

Presidential Legal Counsel Salvador Panelo rejected Bensouda’s finding of reasonable basis to believe that crimes against humanity were committed in the country.

“The Philippine government does not sponsor any unlawful act that may result in any killing or violent activity. Nor does it allow any widespread or systematic attack directed against any civilian population,” he said.

“Our administrative authorities are able and willing to prosecute, as they have prosecuted—any alleged crime against humanity in our jurisdiction. So is our judicial system robust enough to conduct criminal proceedings brought before the courts of justice,” he added.

He said Bensouda’s report was only “political propaganda” against the President and was irrelevant and immaterial because the ICC had no jurisdiction over the country since the Rome Statute was not properly published in the Philippines and that Manila had formally withdrawn from the treaty.

Panelo pointed out that Bensouda’s report itself stated that her office merely anticipated reaching a decision on whether to seek authorization to open an investigation.

“Celebratory statements therefore coming from the enemies of the administration [are] premature and amusing,” he said, referring to warnings from critics that Mr. Duterte’s “day of reckoning” was fast approaching.

PDEA chief hits opposition

Wilkins Villanueva, chief of the Philippine Drug Enforcement Agency, on Wednesday claimed the members of the political opposition fed wrong information to the ICC and manufactured data.

“They’re just doing this to put a bad light on the administration, so they can have a chance at the next elections, since right now their chances look bleak,” Villanueva said.

He also claimed that the ICC leadership was under pressure to put a spotlight on countries outside the African continent.

“Their head is African and I heard he wants to run for office in his home country, but his critics have called him out for only prosecuting African nations [so that could be why they’re looking at the Philippines]” Villanueva said.

Chile Eboe-Osuji, president of the ICC is from Nigeria, while Bensouda is from Gambia. —WITH REPORTS FROM JEROME ANING AND PATRICIA DENISE M. CHIU