On 8 February 2018, Fatou Bensoula, prosecutor of the International Criminal Court (ICC) at the Hague announced her decision “to open a preliminary examination” into the Philippine government’s war on drugs, which ‘potentially falls within the Court’s jurisdiction’ (read full text of her speech here). The Republic of the Philippines is State party to the Rome Statute, which established the ICC to investigate international crimes, since 2011.
The Asian Human Rights Commission (AHRC) welcomes Prosecutor Bensoula’s decision to “analyse crimes allegedly committed [ ] in the context of the war on drugs”. Her “preliminary examination” could provide a platform to initiate an impartial and independent inquiry into allegations of extrajudicial killings of suspected criminals, drug dealers and addicts in the context of war on drugs. Bensoula has stated that this preliminary examination is not an investigation, but a “process of examining the information available” to ascertain if “there is a reasonable basis to proceed with an investigation”. In other words, it is the equivalent of an investigation by a public prosecutor with the mandate to determine whether or not there is “probable cause” that a crime has been committed.
It is of concern however, that President Rodrigo Duterte’s spokesperson, Harry Roque, has described the ICC’s decision as “a waste of the court’s time and resources”. If the Philippine government is committed to clearing its name and ending allegations of extrajudicial killings, it should fully cooperate with the ICC. Roque’s remark is not helpful as it undermines the international human rights mechanism, which the Philippines has a duty and obligation to support.
Although Prosecutor Bensoula has said that the ICC’s examination still acknowledges the national jurisdiction’s primary responsibility to investigate and prosecute those responsible for international crimes, it must be asked whether an impartial and independent investigation is possible in the Philippines. It is already widely reported that President Duterte has openly intimidated the Supreme Court, the Commission on Human Rights and the Office of the Ombudsman. The Department of Justice, the agency with power to prosecute, has openly defended President Duterte’s war on drugs, and denies there were extrajudicial killings. It is under these circumstances, with the repressive political climate and the politicization of ordinary criminal procedures, that intervention by international human rights bodies seem to be necessary.
The AHRC has already observed that even if there are national investigations and prosecutions, as in the case of teenager Kian delos Santos, who was last seen alive on CCTV on 16 August 2017 being taken by policemen in Caloocan, they can occur only after strong local and international condemnation. But what about the cases in which the arrest and killings were never captured by CCTV? To clear the government of its alleged involvement, either through the direct actions of the security forces, or through actively endorsing the killing of criminals so President Duterte could fulfill his election promise, it is imperative that the government fully cooperates with the ICC. The ICC should be allowed to examine allegations to determine whether or not the government has criminal liability.
The Philippine government, as party to ICC and numerous international covenants on the protection of human rights, should demonstrate its full commitment to the international human rights system. Any remarks that go against the intention of the ICC will only indicate that the government is either unwilling or incapable of conducting an impartial and effective investigation and prosecution of extrajudicial killings.
