Sep 27, 2022, Jairo Bolledo
ICC Prosecutor Karim Khan asserts that crimes under the drug war campaign appear to have been ‘at the very least encouraged and condoned by high-level government officials, up to and including the former President’
MANILA, Philippines – After pausing the probe and hearing the Philippine government’s side, International Criminal Court (ICC) Prosecutor Karim Khan insisted that the investigation into drug war killings under former president Rodrigo Duterte should resume.
In his September 22-dated response to the Philippine government’s comment sent to the ICC, Khan said “…the Prosecution respectfully reiterates its request that the Chamber order the resumption of the investigation into the Situation in the Republic of the Philippines,” also declaring that deferral “is not warranted.”
Earlier this month, on September 8, the Philippine government, represented by the Office of the Solicitor General, asked the ICC pre-trial chamber to deny the prosecution’s request to resume the probe into the drug war.
The Philippine government earlier argued that 1) The ICC has no jurisdiction; 2) a probe is already ongoing; and 3) a precedent is needed. But, in his comment, Khan said “none of those arguments have merit.”
Khan’s arguments
The ICC prosecutor raised various points refuting the arguments of the Philippine government.
No probe or prosecution. Khan said the Philippine government, even with its additional submissions to the ICC, has “not demonstrated” that it has conducted or is conducting national investigations or prosecutions that mirror the probe authorized by the pre-trial chamber.
“However, nothing in the observations nor in the hundreds of pages of associated annexes substantiates that criminal proceedings actually have been or are being conducted in anything more than a small number of cases,” Khan noted.
The ICC prosecutor observed that there were neither criminal probes into “war on drugs” (WoD)-related killings in Davao, nor into “vigilante” killings or war on drugs-related torture, and “only a handful of criminal investigations of other WoD-related crimes within this Court’s jurisdiction.”
Khan mentioned the DOJ Inter-Agency Review Panel, Administrative Order No. 35, and Philippine National Police-Internal Affairs Service cases and writ of amparo proceedings which have not produced anything substantial such as determine criminal responsibility. The Philippine government, Khan said, has “failed to substantiate any relevant criminal proceedings in relation to events in Davao” from 2011 to 2016 – years when Duterte was either vice mayor or mayor.
On the case updates provided to the ICC, Khan said the cases submitted were “very few” compared to total number of recorded “killings” that, according to available information, has ranged from 12,000 to 30,000 civilians, including children. The ICC prosecutor said the cases only focused on low-ranking cops and physical perpetrators without investigating high-level assailants.
These cases also pertained only to killings during official police operations and ignored those perpetrated by “vigilantes.”
He added the cases were framed as “isolated instances” without looking at “larger patterns of conduct or underlying policy.”
On ICC’s jurisdiction. Khan said there’s nothing in the Rome Statute states that the Philippines can “challenge the resumption of an investigation on jurisdictional or gravity grounds at this stage of proceedings.”
Khan also refuted the Philippine government’s claim that the alleged crimes do not constitute “crimes against humanity” or that these were not perpetrated as part of state policy or as part of a systemic attack against a civilian population. The prosecutor said the government has “failed to establish that the ICC lacks jurisdiction over the alleged crimes against humanity committed…between 1 November 2011 and 16 March 2019.”
On gravity. Prosecutor Khan said the Philippine government’s challenge on the gravity of the probe is neither supported by facts nor law.
He said that the amount of information they had gathered from civil society organizations, official documents, eyewitnesses, insider accounts, and other open sources was the basis of their request to resume investigations. Assertions about political motivations or subjective social alarm “are beside the point.”
Nothing in the crimes committed in the name of the WoD campaign reportedly carried out “in large part by law enforcement personnel” suggests that they are of “marginal gravity. To the contrary, they are extremely serious crimes, which appear to have been at the very least encouraged and condoned by high-level government officials, up to and including the former President,” Khan said, alluding to Duterte.
ICC has jurisdiction
In his position, Khan reiterated that the ICC has jurisdiction over the Philippines and stated at least three reasons the country falls under the ICC.
First, Khan said the “existence of a contextual element of a crime against humanity cannot divest this Court of subject matter jurisdiction.”
Second, the ICC prosecutor said the Philippine government misstates the requisites in establishing state policy.
Third and last, Khan said the Philippine government did not submit any evidence undermining the ICC’s conclusion that the killings are a systemic attack against a civilian population.
Current president, Ferdinand Marcos Jr. has no plans of rejoining the ICC after the Duterte administration unilaterally withdrew membership. However, Article 127 of the Rome Statute also states that all proceedings prior to the withdrawal remain valid – the same position taken by the Philippine Supreme Court.
In June 2022, Khan filed a request before the ICC’s pre-trial chamber to resume his probe into killings under Duterte. – Rappler.com