Duterte, the ICC, and Asean
People in the Philippines are divided over the significance of the latest development in The Hague where Filipino lawyer Jude Sabio submitted a communication to the Office of the Prosecutor of the International Criminal Court (ICC) on the Philippine situation. He alleged that crimes against humanity have been committed or are being committed in the country. These acts, according to Sabio, are in relation to the war against illegal drugs where the distinction between drug lords and pushers from drug users and addicts have been blurred and thousands have died without trial or any form of due process.
While many government officials have dismissed the communication, saying it is destined to the dustbin, I would not be too complacent. In fact, government lawyers and diplomats must be prepared for the eventuality that the communication matures into a full-blown case.
As I have written in an online media outlet, this is what to expect after a communication is received. The ICC will acknowledge Sabio’s submission and then ICC lawyers will probably be assigned to do due diligence on the case, especially on whether the ICC has jurisdiction. The ICC actually receives many of these communications, and most do not result in any proceeding. In fact, out of the thousands of communications it has received, less than two dozen cases have been filed resulting so far in nine convictions and one acquittal.
At some point, if warranted, a preliminary examination against the Duterte 12 could be launched. This is followed by a full blown investigation. Only then would indictments be handed down and arrest warrants issued. The fact is that it will take years before a case can move forward from submission of communication to examination to the filing of charges. Trial and conviction could also last for years.
My educated guess, as I also wrote earlier this week, is that the Duterte 12 case will move forward faster because the ICC Prosecutor herself had warned the government last October that its war against drugs, and especially the language of the president, could constitute a crime against humanity. Many international law and human rights experts are supportive of this case. There is also a lot of media attention on this and that means there is interest to get a proceeding launched.
There is also a value in initiating the proceedings early to save lives. Some people are arguing that tens of thousands of lives of poor people could be saved if this process were accelerated. In this regard, the Human Rights Watch Report entitled License to Kill, which investigated 24 incidents, would be convincing to the ICC prosecutor to proceed with the case. Following are some excerpts from that report:
“The following 24 incidents resulting in 32 deaths are not a scientific sampling of those killings. However, they share similarities with the clear majority of the cases reported in the media. The killings have largely occurred in impoverished urban areas, many in the National Capital Region of Metro Manila but in other cities as well. Those killed have been typically been people struggling to make ends meet for themselves and their families—work is irregular if they have work at all. In many of the cases, family members acknowledged that their relative was a drug user—typically of shabu, a methamphetamine—or a dealer, or used to be one. But none of the cases investigated fit the category of big-time drug lords—they were people at the bottom of the drug chain.”
“As told to Human Rights Watch by relatives, neighbors, and other witnesses, the assailants typically worked in groups of two, four, or a dozen. They would wear civilian clothes, often all black, and shielded their faces with balaclava-style headgear or other masks, and baseball caps or helmets. They would carry handguns. They would frequently travel by motorcycle—two to a bike. Often there would be a van, invariably white, and sometimes containing markings signifying a police vehicle. There typically would be banging on doors and barging into rooms, but the assailants would not identify themselves nor provide warrants. Family members often reported hearing beatings and their loved one begging for their lives. The shootings could happen immediately, behind closed doors or on the street, or the gunmen might take the suspect away, where minutes later shots would ring out and local residents would find the body, often with hands tied or the head wrapped in plastic.”
“Whether or not the unidentified assailants doing the actual killing were police officers or merely agents of the police, the similar modus operandi in these operations shows planning and coordination by the police, and in some cases, local civilian officials. These were not killings by individual officers or by “vigilantes” operating separately from the authorities. The cases investigated in this report suggest that police involvement in the killings of drug suspects extends far beyond the officially acknowledged cases of police killings in “buy-bust” operations. Furthermore, the government’s failure to arrest—let alone prosecute—a single police officer for their role in any of the “war-on-drugs” killings that Duterte has encouraged and instigated sends a message that those involved need not fear being held to account, and that future killings can be carried out with impunity.”
I do not know how far the ICC will go in this case. It could actually decide that it is premature to get involved now with opportunities for accountability through the Commission on Human Rights, the Ombudsman, and the Judiciary not having been maximized yet. Actually, the ICC rules does not require strict exhaustion of remedies. As I have also written, the spirit of the Rome Statue is that it is a last resort remedy but it does not require all remedies have been taken as perception that there is no will to move forward on a remedy is enough to move a case forward. The ICC is a complementary —it is not exclusive, appellate or alternative to other forums, and can co-exist with ongoing domestic processes. I think the fact that people are still dying in the hundreds every month, with full coverage, without adequate investigation could be fatal for the Duterte 12.
This week, President Duterte is hosting all his fellow leaders in the Asean. The submission of the communication by Sabio and the media coverage including a scathing editorial of the New York Times, has been a minor embarrassment. But the initiation of a preliminary examination or even a full blown investigation in November when the Asean leaders meet again and this time with the leaders of the United Nations, China, the United States, Europe, India and other countries, could potentially be more damaging. Let us not be surprised when that happens. Better still, let’s make sure it does not happen by changing course before it’s too late.
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