MANILA, Philippines (2nd update January 25, 2:09 a.m.) — The prosecutor at the International Criminal Court has formally requested judges of the pre-trial chamber to move forward in the probe into the Philippines' "war on drugs."
"I have concluded that the deferral requested by the Philippines is not warranted, and that the investigation should resume as quickly as possible," ICC prosecutor Karim Khan said in a statement issued in The Hague, after the ICC in November suspended the probe at Manila's request.
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In his request document, Khan argued that the Philippine government has failed to demonstrate that it has investigated numerous cases of killings in its police operations.
"The GovPH does not appear to be investigating whether any of the alleged crimes were committed pursuant to a policy or occurred systemically, or whether any person in the higher echelons of the police or government may be criminally responsible. For these reasons alone, the Court should not defer to the GovPH’s investigation," Khan wrote.
Khan also found that the cases moved on the surface and led to "non-penal initiatives and proceedings" without resulting in criminal prosecutions of those behind the killings.
Davao Death Squad
In the 53-page document, Khan noted that the investigation carried out by the GovPH (as defined by the national proceedings to which they refer) does not sufficiently mirror the investigation to be conducted by the Prosecution.”
The ICC noted that no reference of investigation was made beforel Juy 2016—to note, the international tribunal aims to also probe into killings by the Davao Death Squad, when the outgoing president was still a mayor in the Southern city.
Former ICC prosecutor Fatou Bensouada, in her earlier request to launch an investigation into the Philippines, "war on drugs" killings "appear to have been committed pursuant to an official State policy of the Philippine government." She said that these "same types of actors" had allegedly been committing similar crimes in Davao City for decades.
"Given the similarities between those killings and the nationwide ["war on drugs"] killings from July 2016 and March 2019, and the overlap of individuals involved during both periods, the Prosecution requests that the 2011-2016 events in Davao be included within the requested investigation," she said then.
DOJ review panel
In its request to defer investigation, the ICC noted that the PH government referred extensively to the “war on drugs” review panel led by the Department of Justice, first announced in June 2020.
But Khan noted that the evidence submitted by the prosecution was only list of cases, with no probative value to establish investigative steps to ascertain criminal responsibility, and only cover a “small proportion of the criminal conduct” allegedly between November 2011 to March 16, 2019.
To recall, the DOJ-led review has only so far covered 302 National Bureau of Investigation cases, consisting of 52 Philippine National Police Internal Affairs Services cases and 250 National Prosecution Service. This is despite Justice Secretary Menardo Guevarra's statement before the United Nations Commission on Human Rights to conduct judicious review of more than 5,600 "war on drugs" cases that resulted in deaths.
There is no indication in these observations and remarks, of any concrete investigative steps taken by the NBI in relation to these cases.
“A mere referral for investigation, without more, is insufficient to establish inadmissibility. Because no concrete investigative steps have been substantiated for the vast majority of the cases purportedly referred to the NBI, this material cannot justify deferral of investigation,” Khan said.
Various actors
“In this context, the Appeals Chamber has emphasized that in order to obtain a full picture of the relevant facts, their potential legal characterization as specific crimes under the Court’s jurisdiction, and the responsibility of the various actors who may be involved the Prosecution must carry out an investigation into the situation as a whole.,” Khan saidn.
“Further, the GovPH does not appear to be investigating whether any of the alleged crimes were committed pursuant to a policy or occurred systematically, or whether ant person in the higher echelons of the police or government may potentially be criminally responsible,” the ICC prosecutor added.
Former United Nations Special Rapporteur Agnes Callamard said the Philippine government’s review of “drug war” operations that resulted in deaths must go beyond police officers who killed, but must cover whoever may have emboldened them.
The benchmark for exacting accountability for killings and human rights violations in the country must also be beyond cops’ dismissal from service, but must reach the courts of law, Callamard added. “Being dismissed if you’ve killed people, that’s not acceptable,” she also said in January 2021.
What happens under Marcos presidency?
As early as October 2021, days after he filed his Certifiicate of Candidacy, president-elect Ferdinand Marcos Jr. echoed the Duterte government’s stand that the Philippines is no longer a signatory of the Rome Statute.
“They can come, but we don’t know what we can expect the government can do. Everybody is welcome but as a tourist,” he said then. — with Camille Diola