Arrests within months if ICC crimes against humanity probe into Rodrigo Duterte's drug war goes ahead: rights lawyer

In a 57-page document, the ICC's outgoing chief prosecutor Fatou Bensouda said her office's review had found "a reasonable basis to believe" the Duterte government had "deliberately" killed 12,000 to 30,000 Filipinos between 2016 and 2019. It said the killings, which it called "widespread and systematic", had been committed by state security forces.

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It said the killings followed a "consistent fact pattern", with police claiming victims had been shot because they were resisting arrest, but witness statements and other reports claiming victims had been executed.

"Other information suggests that most victims did not pose a threat to the police and were instead killed in a premeditated manner," the report said.

The report mentioned several names: Duterte, then PNP chief Ronald dela Rosa, serving justice secretary Menardo Guevarra, and former justice secretary Vitaliano Aguirre. But La Vina said "the list of officials implicated will probably be long and open-ended".

Ruben Carranza, director of the Reparative Justice Programme at the International Centre for Transitional Justice in New York, said he had been expecting Bensouda's request for an investigation. 

"Bensouda's public and non-public steps, from a press statement 'warning' in 2016, to reiterating that the Philippine withdrawal would not end the preliminary examination, all show she not only gave Philippine officials several opportunities to investigate and end extrajudicial killings, but to forestall the investigation that is now likely to be authorised."

Carranza said that "given the detailed, substantial and well-argued request by Bensouda, it is likely the pre-trial chamber will later issue summons, or even warrants of arrest, for those individuals the prosecutor identifies ... as direct perpetrators", such as the police or death squad killers, and indirect co-perpetrators, such as any government officials who ordered, covered-up and/or knowingly enabled the killings.

According to Bensouda's report, Duterte had not only publicly endorsed the killings, but also promised to protect the killers.

The report said the crimes were committed by "state actors" - police, military and vigilantes acting on behalf of the state. Officials from the department of local government had also "contributed" to "relevant operations", it said.

The report said that because of page constraints, it had focused on murder, but the drug war had included many instances of brutality that would merit investigation as crimes of torture and inhumane acts.

Former senator Antonio Trillanes, a political opponent of Duterte, said: "This is another monumental step towards justice for all the families of victims of extrajudicial killings. The long arm of the law will soon catch up with Duterte and his accomplices."

On Tuesday, presidential spokesperson Harry Roque, himself a former human rights lawyer, said Bensouda's request was "legally erroneous and politically motivated". Roque said the president would not cooperate "until the end of his term on June 30, 2022".

The government's refusal to cooperate or allow anyone from the ICC to enter the country would not be a bar to the investigation, Carranza, a former commissioner of the Presidential Commission on Good Government, said.

He pointed out that Bensouda's report mentioned that her office had "already started to preserve evidence even during the preliminary examination stage, as well as taken steps to protect witnesses", and that these actions were taken with the court's authorisation.

"The case will not fall apart even if the prosecutor doesn't get Philippine cooperation; but it will risk falling below the standard of guilt should there be a trial if evidence only available in the Philippines [such as autopsy reports, bullet casings or even bodies to exhume] isn't accessible or eyewitnesses in certain examples of extrajudicial killings are not available to testify," Carranza said.

But he said this wasn't an "insurmountable challenge".

La Vina said the ICC case involving alleged crimes by US troops in Afghanistan had shown the ICC was able to proceed with cases even where cooperation was withheld.

Carranza warned that a formal investigation could work in Duterte's favour and influence the 2022 election.

"In Kenya, the ICC case against the then vice-president Uhuru Kenyatta and his allies was used by them to promote a narrative of being persecuted by the West, and to promote themselves as candidates who would defend Kenya's sovereignty.

"Kenyatta became president, even as witnesses in the case and even their lawyers were subjected to threats, bribes or allegedly even killed," Carranza said.

However, he said the risk for Duterte in trying a similar tactic would be that other former or serving officials who faced charges might fear being abandoned by Duterte or his successor and would "take matters into their own hands".

The ICC's involvement started in 2017 when a Filipino lawyer filed a "communication" at the court accusing Duterte and several officials of presiding over "mass murder". Several other Philippine groups followed with their own communications.

Enraged, Duterte ordered the withdrawal of the Philippines from the ICC, which it had joined in 2011. With the pull-out, which was announced in 2018 and became effective in 2019, Manila claimed the ICC no longer had jurisdiction over the Philippines.

But Bensouda's report said the court still retained "jurisdiction with respect to alleged crimes that occurred" while the Philippines was a member of the ICC. It said this covered the period from November 2011 to March 2019. 

Manila has argued that there is no need for an ICC investigation because the Philippines is conducting its own review of the drug war deaths.

On Tuesday, the Philippine department of foreign affairs called Bensouda's announcement "deeply regrettable" and claimed there was no need for ICC involvement because the Duterte government had already formed an inter-agency review panel "to reinvestigate cases involving fatalities in the campaign against illegal drugs".

However, Bensouda's report was critical of the inter-agency panel, saying there was "little information" on its "actual work or output".

"The panel has reportedly referred cases for disciplinary action and criminal investigation; however, to date there have been no further criminal prosecutions," Bensouda's report said.

Carranza said although the Philippines was no longer part of the ICC, it could still get the court to defer an investigation if it could show it was investigating the killings in good faith.

The problem, he said, was that "the Duterte administration has been schizophrenic about this: on one hand, Duterte keeps declaring that the Philippines will not cooperate with the ICC, but on the other, his justice and defence ministers are trying, not very convincingly, to show that the Philippines is reinvestigating police-operation extrajudicial killings and asking the UN Human Rights Council not to launch its own commission of inquiry".

Duterte has done himself no favours with his aggressiveness to the ICC. In 2018 he referred to Bensouda as "that black woman".

Last year he said he could hurl a grenade at the court so that "we'll all go to hell together".

This article originally appeared on the South China Morning Post (SCMP).

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