Jun 26, 2022, Jodesz Gavilan
Families, human rights groups, and other stakeholders bank on the ICC to bring justice to thousands of victims, as domestic mechanisms prove to be ineffective in the quest for accountability in the Philippines
MANILA, Philippines – Developments continue to unfold at the International Criminal Court (ICC) in relation to the killings under the violent war on drugs, a key policy under outgoing President Rodrigo Duterte.
Government data shows that at least 6,252 people have died at the hands of the police during anti-illegal drug operations as of May 31, 2022. This tally does not include victims of vigilante-style killings, which human rights groups estimate to pull the number up to around 30,000.
Documents obtained by Rappler, however, show that the Philippine National Police (PNP) already recorded 7,884 deaths between July 1, 2016 to August 31, 2020.
Families, human rights groups, and other stakeholders bank on the ICC to bring justice to the thousands of victims, as domestic mechanisms prove to be ineffective in what appears to be a futile quest for accountability.
The Commission on Human Rights (CHR), mandated by the 1987 Philippine Constitution to investigate state abuses, was stonewalled by the Duterte government in its own probes – a recurring treatment even among other groups that try to assist families of victims.
What has happened with the ICC proceedings so far? Rappler lists key events involving the ICC and Duterte’s war on drugs. We will update this timeline as new information comes in.
OCTOBER 13, 2016
Then-ICC prosecutor Fatou Bensouda says her office is keeping an eye on the incidents in the Philippines as the number of deaths in drug war operations continues to rise almost four months into the Duterte administration.
In a statement, she says her office “will be closely following the developments… and record any instance of incitement or resort to violence with a view to assessing whether a preliminary examination into the situation of the Philippines needs to be opened.”
Without naming any official, Bensouda also warns that “any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.”
NOVEMBER 17, 2016
Duterte threatens to withdraw the Philippines from being a member-state of the ICC.
He calls the international court useless, saying it really is unable to help small countries. This would be the first of many instances when the President would publicly threaten and insult the ICC, including its officials.
APRIL 24, 2017
Filipino lawyer Jude Sabio files a communication before the ICC over the “repeatedly, unchangingly, and continuously” mass murder in the Philippines.
He requests the court to “commit [Duterte] and his senior government officials to the Trial Chamber for trial and that the Trial Chamber in turn, after trial, convict them and sentence them to corresponding prison sentence or life imprisonment.”
Sabio was the lawyer of self-confessed Davao Death Squad (DDS) member Edgar Matobato, who was the first to publicly come out to accuse Duterte of being behind the killings in Davao City as mayor.
In the documents filed, Sabio says he has “direct proof beyond reasonable doubt” that Duterte continued these killings at the national level.
Sabio would later “withdraw” his communication in January 2020, but experts point out this will not affect the ongoing proceedings. He dies on April 12, 2021 due to cardiac arrest.
Duterte threatens to withdraw the Philippines from being a member-state of the ICC.
He calls the international court useless, saying it really is unable to help small countries. This would be the first of many instances when the President would publicly threaten and insult the ICC, including its officials.
APRIL 24, 2017
Filipino lawyer Jude Sabio files a communication before the ICC over the “repeatedly, unchangingly, and continuously” mass murder in the Philippines.
He requests the court to “commit [Duterte] and his senior government officials to the Trial Chamber for trial and that the Trial Chamber in turn, after trial, convict them and sentence them to corresponding prison sentence or life imprisonment.”
Sabio was the lawyer of self-confessed Davao Death Squad (DDS) member Edgar Matobato, who was the first to publicly come out to accuse Duterte of being behind the killings in Davao City as mayor.
In the documents filed, Sabio says he has “direct proof beyond reasonable doubt” that Duterte continued these killings at the national level.
Sabio would later “withdraw” his communication in January 2020, but experts point out this will not affect the ongoing proceedings. He dies on April 12, 2021 due to cardiac arrest.
FEBRUARY 8, 2018
The ICC Office of the Prosecutor announces that it has initiated a preliminary examination to determine whether there is sufficient evidence to establish that the case falls under the court’s jurisdiction.
In a statement, Bensouda says her office has decided to pursue this move “following a careful, independent, and impartial review of communications and reports documenting alleged crimes.”
Then-presidential spokesperson Harry Roque says Duterte welcomes this move “because he is sick and tired of being accused of the commission of crimes against humanity.”
MARCH 14, 2018
Duterte announces that the Philippines will withdraw as a member-state of the ICC. In a written statement, the President says he is “withdrawing [the country’s] ratification of the Rome Statute effective immediately.”
But the Rome Statute, the ICC’s founding document, explicitly states that withdrawal shall only take effect “one year after the date of receipt of the notification.” Ceasing to be a member-state will also not affect criminal investigations and proceedings that have been started before the withdrawal came into effect.
MARCH 16, 2018
The Philippine government formally submits to the United Nations its written notice of withdrawal from the ICC. In the letter, the government says its decision to withdraw reflects the country’s “principled stand against those who politicize and weaponize human rights.”
The transmission of the letter officially triggers the one-year waiting period before the withdrawal takes effect.
AUGUST 28, 2018
Families of drug war victims, through another submitted communication, urge then-ICC prosecutor Fatou Bensouda to indict and eventually convict Duterte.
The families, convened under the Rise Up for Life and for Rights network, “call for an end to madness and for [Duterte], who has likened himself to one of the most evil men in history, to be brought before the ICC and be held to account for crimes against humanity.”
The human rights abuses under his administration “threaten the core principles of humanity itself, subsuming individual victim experiences, and even state borders,” the families add.
MARCH 17, 2019
The Philippines officially ceases to be a member-state of the ICC, a year after the Duterte government first gave notice of its withdrawal as signatory to the Rome Statute.
While withdrawing does not hinder the ICC from moving forward with possible proceedings, it will most likely make things difficult for investigators, especially in terms of getting cooperation from the Philippine government.
DECEMBER 5, 2019
Then-ICC prosecutor Bensouda says she aims to finalize her preliminary examination by 2020 so her office can “reach a decision on whether to seek [authorization] to open an investigation into the situation in the Philippines.”
In a report, Bensouda says her office “significantly advanced its assessment” since 2018, adding that they continue to monitor the situation, including reports of threats and harassment against human rights defenders.
NOVEMBER 11, 2020
Arturo Lascañas, former Davao City top cop and self-confessed DDS hitman, signs a Third Agreement on Limited Use of Information with the ICC. The document shows that the ICC Office of the Prosecutor (OTP) will not use as evidence against Lascañas his confessions about carrying out killings ordered by Duterte himself.
This is unprecedented and considered a first in Philippine history. International human rights lawyer Ruben Carranza says this move is a form of use immunity, while former ICC prosecutor Luis Moreno Ocampo says the document means that the OTP is treating the witness as an insider, although he could also be a suspect.
This development, however, only becomes public in November 2021, as part of Rappler’s investigation into Duterte and the Davao Death Squad.
DECEMBER 15, 2020
Bensouda says there is “reasonable basis to believe that crimes against humanity” were committed in the Philippines in connection with Duterte’s war on drugs. These incidents, she points out in a report, occurred at least between July 1, 2016 to March 16, 2019 – a day before the Philippines’ withdrawal from the ICC took effect.
Her office, however, is yet to reach a decision on whether to seek permission to open a formal investigation, given the challenges brought about by restrictions related to the coronavirus pandemic.
JANUARY 22, 2021
Families of drug war victims call on the ICC to hold Duterte accountable for allegedly impeding justice, including instances when he repeatedly threatened Bensouda and the court.
In a supplemental pleading submitted to Bensouda, mothers represented by the National Union of Peoples’ Lawyers say Duterte “should be held accountable for his blatant attempt to pervert the course of justice by intimidating and retaliating against the officials of the [ICC].”
MARCH 16, 2021
The Supreme Court junks a petition questioning the validity of Duterte’s withdrawal from the ICC, including whether he is legally required to get the concurrence of the Senate in doing such act.
The High Court, voting unanimously, dismisses the petition because it has become moot and academic.
It, however, says the government is obliged to cooperate with the ICC even if it has already withdrawn, according to the full document released months after on July 21, 2021. Despite this, Malacañang remains firm in its decision not to cooperate.
JUNE 14, 2021
Then-ICC prosecutor Bensouda applies for authorization with the pre-trial chamber to open an investigation into the killings committed during the war on drugs and in Davao City from 2011 to 2016.
Bensouda, in a report, says “extrajudicial killings, perpetrated across the Philippines, appear to have been committed pursuant to an official State policy of the Philippine government.”
This move comes a day before Bensouda, who has been publicly threatened by Duterte, retires from the ICC on June 15. She is replaced by Karim Khan, who has extensive experience working in international criminal tribunals.
Families of drug war victims earlier call on Bensouda to “issue a warrant of arrest against President Rodrigo Duterte and hold him while trial is ongoing.”
SEPTEMBER 15, 2021
The ICC’s pre-trial chamber greenlights the investigation into Duterte’s war on drugs and killings in Davao City between 2011 and 2016.
In the decision, ICC judges conclude that “there is a reasonable basis for the Prosecutor to proceed with an investigation, in the sense that the crime against humanity of murder appears to have been committed.”
The chamber also observes that “it is also apparent” that killings took place “pursuant or in furtherance of a state policy.”
OCTOBER 7, 2021
New ICC Prosecutor Karim Khan, who succeeded Bensouda, urges the Duterte government to cooperate with his office in the conduct of an investigation into the killings under the war on drugs, as well as those committed in Davao City between 2011 and 2016.
In a statement, Khan says he remains “willing to constructively engage with national authorities in accordance with the principle of complementarity and our obligations under the Statute.”
The investigation, he adds, seeks “to uncover the truth and aims to ensure accountability,” as well as focus their efforts to ensure a “successful, independent, and impartial investigation.”
NOVEMBER 10, 2021
The Duterte government formally requests the ICC to stop the ongoing investigation into the Philippine situation.
Through a letter signed by Philippine Ambassador to the Netherlands J. Eduardo Malaya, the government avails of an option available under the Rome Statute which allows it to ask the Prosecutor to defer the probe and recognize working domestic mechanisms.
NOVEMBER 19, 2021
ICC Prosecutor Khan announces that his office will temporarily suspend its investigation into the drug war killings in the Philippines but assures the public they will “continue its analysis of information already in its possession as well as new information it may receive.” This move to pause the probe is a matter of procedure.
NOVEMBER 24, 2021
ICC Prosecutor Khan says they will ask the Duterte administration for proof that it is genuinely investigating the killings under the violent war on drugs.
In a statement, he says that “such information must consist of tangible evidence, of probative value and a sufficient degree of specificity, demonstrating that concrete and progressive investigative steps have been or are currently being undertaken to ascertain the responsibility of persons for alleged conduct falling within the scope of the authorized ICC investigation.”
JUNE 24, 2022
Khan files a request before the ICC pre-trial chamber seeking to resume his office’s investigation into the killings under Duterte’s war on drugs and those committed in Davao City between 2011 and 2016. In a 53-page document, Khan says information collated by his office “does not demonstrate that concrete and progressive steps have been taken or are being taken by the competent national authorities.”
He adds that the government failed to show that any individual has been probed “for ordering, planning, or instigating” the killings. He also says there is no indication that “domestic authorities are investigating the alleged systematic nature of these and other killings.”
Khan also says the inter-agency drug war review panel “does not appear to possess powers or authority independent of the [Department of Justice] or have any specific investigative function.” What the DOJ-led panel did appears to be a mere “desk review” that “by itself does not constitute investigative activity.”
JUNE 26, 2022
In response, Justice Secretary Menardo Guevarra says he respects Khan’s view but that “he should have waited for our efforts to bear some fruit.”
He added: “An investigation of this magnitude and complexity cannot be finished in a few months.” – Rappler.com