The International Criminal Court (ICC) has formally authorised an official probe into alleged crimes against humanity in Philippine President Rodrigo Duterte’s “war on drugs”, dealing a moral victory to human rights defenders and families of victims killed, including innocent children.
In a statement issued on Wednesday, the Hague-based tribunal said there was “reasonable basis” to proceed with the probe noting that “specific legal element of the crime against humanity of murder” has been met in the crackdown that left thousands dead.
The ICC’s pre-trial chamber also said that while it recognises the Philippines’ duty to fight drug smuggling and addiction, the “so-called ‘war on drugs’ campaign cannot be seen as a legitimate law enforcement operation, and the killings neither as legitimate nor as mere excesses in an otherwise legitimate operation”.
The order to investigate was signed by Judges Péter Kovács, Reine Adélaïde Sophie Alapini-Gansou and María del Socorro Flores Liera.
The court said that its judges considered the evidence presented on behalf of at least 204 victims, and what they found suggested that a “widespread and systematic attack against the civilian population took place pursuant to or in furtherance of a state policy”.
The ICC also noted that they have reviewed supporting materials that indicate that Philippine authorities “failed to take meaningful steps to investigate or prosecute the killings.” It also noted that that perpetrators of the killings were even offered “cash payments, promotions or awards for killings in the so-called ‘war on drugs’ campaign.”
Former ICC prosecutor Fatou Bensouda filed the request to investigate just before her retirement in June, alleging that “state actors, primarily members of the Philippine security forces, killed thousands of suspected drug users and other civilians during official law enforcement operations.”
Bensouda’s successor, Prosecutor Karim Khan, will now oversee the actual probe and possible trial of the case.
When Bensouda’s recommendation was announced in June, Duterte dismissed the news saying it was “bulls**t” while threatening to “slap” the ICC magistrates.
In an interview with DZBB, a Manila-based radio station on Thursday, Salvador Panelo, the president’s legal counsel repeated previous statements staying that the Duterte administation will not cooperate with the investigation.
Panelo also said that ICC investigators would not be permitted to enter the country to conduct the probe.
Hearing the news of the ICC decision, Llore Pasco, a resident of Metro Manila whose two sons were killed in May 2017, said she is relieved that the case is moving forward. She was one of the mothers who petitioned the ICC to investigate the deadly “war on drugs”.
“God is great. I feel some sense of relief and happiness. Now there’s hope that the victims can attain justice, and those who committed the crimes will be punished,” she told Al Jazeera on Thursday.
Duterte ran for president in 2016 on a single issue of fighting crime in the Philippines. During his campaign and later on as president, he repeatedly urged police to “kill” drug suspects.
After taking office on June 30, 2016, he immediately launched his deadly campaign described by the country’s Catholic leaders as a “reign of terror”.
The latest government data released in June shows that as of the end of April 2021, police and other security forces have killed at least 6,117 suspected drug dealers during its operations. But government figures cited by the UN in June 2020 already showed at least 8,600 deaths.
A Philippine police report in 2017 also referred to 16,355 “homicide cases under investigations” as accomplishments in the drugs war.
In December 2016, Al Jazeera reported more than 6,000 deaths in the drug war, raising questions about the inconsistency of the government’s record-keeping system and the possible “manipulation” of government data.
Human rights groups say the number of deaths could be between 27,000 and 30,000. They accuse the authorities of carrying out summary executions that killed innocent suspects, including children.
Among those killed were at least 73 children, with the youngest just five months old, according to a UN investigation. Countless people were also killed by “unknown” gunmen, who later turned out to be police officers, according to news reports. Only very few of the thousands of cases reported were prosecuted.
In response to the initial move of the ICC to look into the drug war in the Philippines, Duterte withdrew the Philippines’s membership from the ICC in March 2018. The decision came into force exactly a year later in 2019.
When he announced he was going to withdraw from the court, Duterte defended his crackdown, saying it was “lawfully directed against drug lords and pushers who have for many years destroyed the present generation, especially the youth”.
The court, however, pointed out that it still has jurisdiction over the alleged crimes committed at the time that the Philippines was still a signatory to the Rome Statute until March 2019.
Manila ratified the Rome Statute on August 30, 2011, and the Statute entered into force beginning on November 2011.
The ICC was set up in 2002 by UN member states to adjudicate cases that countries are unable or unwilling to prosecute. In the past, it has indicted leaders such as Sudan’s former President Omar al-Bashir. In 2019, it convicted Bosco Ntaganda for war crimes and crimes against humanity for his involvement in armed conflict between Rwanda and the Democratic Republic of the Congo.
Aside from the Duterte “drug war”, the ICC also said that it will look into alleged summary executions committed in the southern city of Davao between 2011 and 2016, when Duterte was mayor before he was elected president.
The ICC investigated at least 385 extrajudicial killings in Davao, covering the period that the Philippines was a state party to the Rome Statute.
The alleged executions were reportedly committed by local police officers and the so-called “Davao Death Squad” (DDS) vigilante group.
In 2017, a retired police officer had also linked Duterte and his men to nearly 200 killings when he was mayor there. But there have been as many as 1,424 summary executions listed by the Davao-based Coalition Against Summary Execution, according to the Mindanews website.
ICC prosecutors in court papers estimate that between 12,000 to 30,000 were slain in the drug war ordered by Duterte [File: Czar Dancel/Reuters]
ICC prosecutors had alleged that those killed in Davao were also linked to the drug trade, adding that gang members and street children were also killed.
Duterte served as mayor of Davao for about 20 years. He had also served as congressman and vice mayor of the city.
ICC prosecutors said that authorities later employed the same tactics in the nationwide so-called war on drugs, when Duterte became president.
“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. Similarities in the modus operandi are also discernible.”
Citing the Philippines’ withdrawal from the Rome Statute, Duterte said that the ICC no longer has no jurisdiction over him and that the probe is “illegal”. Philippine legal analysts say that decision not to cooperate would only expedite the resolution of the case.
In an online forum, former University of the Philippines College of Law Dean Pacifico Agabin said Duterte’s legal strategy could even backfire, as it will only shorten the time for the ICC to review the case and proceed to the formal trial, during which the court could even issue an arrest warrant.
In the same forum, Tony La Vina, the dean of the Ateneo School of Government in Manila, added that Duterte and his team “will have a better chance appearing, rather than not appearing” at the Hague.
When Bensouda first looked into the allegations of abuses in the Philippines, Duterte taunted her, referring to her as “that black woman”. He also called another UN human rights investigator, Agnes Callamard as “skinny and malnourished.” Callamard is now the secretary-general of Amnesty International.
In his State of the Nation address in July, he also addressed the ICC saying, “I have never denied [it], and the ICC can record it: Those who destroy my country – I will kill you,” he said.
His spokesman, Harry Roque, a former human rights lawyer, had earlier said that the ICC investigation was “legally erroneous and politically motivated.”
On Thursday, Roque said in Filipino that Duterte had already declared that “he would rather die than submit to a foreign tribunal”.
Roque also insisted that the judicial system in the Philippines in working, and as such the decision of the ICC violates the country’s “sovereignty and jurisdiction”.
Rights groups, however, welcomed the ICC’s decision on Wednesday saying, it reaffirms “the views of victims and their families”.
“Duterte and his cohorts should be made accountable for these crimes,” the human rights watchdog group Karapatan said in a statement.
In a statement, Human Rights Watch researcher Carlos Conde also praised the ICC’s decision saying, “Victims’ families and survivors have reason to hope that those responsible for crimes against humanity could finally face justice.”
Edre Olalia, the president of the National Union of Peoples’ Lawyers, said he hopes the decision “is the beginning of the end to impunity”
“No one should be invincible and infallible. There is always a time for everything.”
“It was a long and tortuous journey so far,” he told Al Jazeera.