On 15 September, a pre-trial chamber of the International Criminal Court (ICC) authorised the court’s Office of the Prosecutor to open an official investigation into crimes against humanity allegedly committed in the Philippines between 2011 and 2019 as part of President Rodrigo Duterte’s controversial “war on drugs”, as well as atrocities around Davao, in the southern island of Mindanao, when he was the city’s vice mayor.
Following a three-year “preliminary examination” of the alleged crimes, the prosecutor sought permission in June to proceed with a more formal investigation, arguing that Duterte’s anti-drug campaign “cannot be seen as a legitimate law enforcement operation”, adding that the killings can be viewed “neither as legitimate nor as mere excesses in an otherwise legitimate operation”. Instead, the prosecutor asserted that the campaign, which led to the deaths of thousands, was a “widespread and systematic attack against the civilian population” that “took place pursuant to or in furtherance of a State policy”. After looking into evidence presented on behalf of over 200 victims, the three-judge chamber found that there was “reasonable basis” to launch the probe, taking the view that evidence of various killings throughout the country sufficiently established that “murder” had been committed for purposes of the Rome Statute, the ICC’s constitutive treaty. The judges also authorised the prosecutor to look into similar crimes committed between 2011 and 2016 in and around Davao, where Duterte served as mayor and vice mayor for two decades before becoming president.
This development means that the ICC prosecutor can now formally investigate the alleged crimes. If the case progresses to trial, the prosecutor could ask the court to issue summons or arrest warrants in an effort to bring suspects to The Hague to appear before the court. It is not clear, however, whether proceedings will reach that stage. Duterte’s government notified the ICC that it was withdrawing from the Rome Statute in March 2018, a month after Fatou Bensouda, then the prosecutor, launched her preliminary examination of alleged crimes committed during Duterte’s drug war. Manila cited “shameless attacks” on the person of the president. Under the terms of the Rome Statute, the withdrawal officially took effect one year later. Although the court maintains that it continues to enjoy jurisdiction over crimes committed while the Philippines was a state party, Manila has since repeatedly said it will not cooperate with any investigation, arguing the court does not have jurisdiction.
President Duterte’s chief legal counsel Salvador Panelo reacted to the pre-trial chamber’s ruling on 16 September, saying the decision “neither bothers nor troubles the president and his administration”. Duterte’s spokesperson Harry Roque, who is campaigning for a position at the UN International Law Commission, added he was confident that the probe would not result in charges or reach the trial stage as Filipino authorities, particularly the police, would not cooperate with investigators. “They’ll never take me alive”, Duterte himself vowed in early August when asked about the possibility of being brought before the ICC.
What exactly is President Duterte suspected of?
At the core of the allegations the court is investigating lies Duterte’s contentious approach to fighting illegal drugs in the country, which has earned him such nicknames as “Duterte Harry” (a reference to “Dirty Harry”, a no-nonsense detective played by Clint Eastwood in a 1970s and 1980s movie series) and “The Punisher”. During three terms as mayor and one term as vice mayor of Davao City, the future president made his name as a tough anti-crime campaigner who promised to rid the city of drugs – and largely succeeded. His anti-crime policies helped make him highly popular; even today, Davao residents credit him with bringing tranquility and socio-economic development to the town.
Perhaps the most sinister aspect of Duterte’s legacy was the alleged creation of an administration-backed “Davao death squad”, tasked with eliminating crime in the city. Past reports from the UN special rapporteur on extrajudicial, summary or arbitrary execution, Philip Alston, have directly implicated Duterte in the squad’s alleged human rights violations. In recent years, former squad members have also come forward in the media and even testified in front of the Philippine Senate, admitting to extrajudicial killings and other human rights abuses. But although accounts of Duterte’s direct involvement exist, clear and concrete evidence has been elusive. Many observers, however, consider his links to the death squad an open secret. Duterte himself has given contradictory statements, ranging from outright denial to bragging about killing criminal suspects. As the investigation only goes back to the date when the country acceded to the Rome Statute, ie, 2011, it covers only a fraction of Duterte’s time as Davao’s strongman. Some reports of targeted killings date back to the 1990s.
In 2016, Duterte ran for president promising to bring law and order to the entire country. Among his most controversial statements were his promises to “kill every drug dealer and user” and to dump so many dead bodies in Manila Bay that “fish there would grow fat”. Beginning in the very first months of his presidency, and over the following two years, his government launched a series of police operations targeting the drug trade. Given a free hand, law enforcement agencies went all out, conducting daily raids in Manila’s slums and throughout the country, killing thousands and packing the country’s jails with suspects, many of whom were from the poorest segments of the population. Manila acknowledges that the operations led to many casualties but posits that, in all cases, police officers were acting in self-defence. Numerous testimonies suggest otherwise, with witnesses alleging that many victims were shot in cold blood. Reliable casualty figures are hard to come by. While government data points to 6,117 drug dealers killed so far in Duterte’s term, independent estimates of the number of deaths range from 12,000 to 30,000, including many minors.
In reaching its decision, the ICC’s pre-trial chamber said it relied on information about direct links between the Davao killings and the subsequent war on drugs, particularly the “systematic involvement of security forces”. It added that “similarities in the modus operandi are also discernible”, citing information that some individuals involved in the Davao death squads were later transferred to Manila to participate in the war on drugs. Duterte’s own statements apparently also contributed to the ICC judges’ decision to greenlight the investigation, as they noted a “coherent progression” in his public threats first to kill criminals in Davao and later to get rid of drug dealers throughout the country. In addition to Duterte himself, the chamber’s decision mentions the former Philippine National Police chief, Ronald “Bato” Dela Rosa, now a senator and a close confidant of the president. In his own words, Duterte promoted Dela Rosa to head the police to “look for the enemies” and “destroy the [drug] apparatus”.
How can the ICC assert jurisdiction considering the Philippines doesn’t recognise its authority?
Under the Rome Statute, states have the primary duty to investigate and prosecute the grave international crimes that fall within the court’s jurisdiction, which include crimes against humanity. The international court operates under the so-called complementarity principle, resorting to investigations only when a country proves unwilling or unable to genuinely investigate and prosecute such crimes. In the Philippine case, the ICC Office of the Prosecutor justified its intervention by citing the government’s failure “to take meaningful steps to investigate or prosecute the killings”. Indeed, many relatives of drug war victims have allegedly faced insurmountable difficulties, from police obstruction to the fear of retribution from government agencies, when seeking justice. Only a handful of high-profile cases have led to the conviction of police officers.
While, as noted above, Manila’s withdrawal from the Rome Statute in 2019 does not end the court’s legal jurisdiction over crimes allegedly committed when the Philippines was an ICC party, it does complicate the court’s capacity to undertake a meaningful investigation, let alone conduct a trial. For all of the ICC’s formal power, the Office of the Prosecutor relies on states’ cooperation to conduct its investigations and to ensure that potential suspects are delivered to The Hague in cases where the court issues summons or arrest warrants. Duterte’s government has made it amply clear it will not cooperate. On 16 September, presidential legal counsel Salvador Panelo repeated that the government would not allow ICC investigators to enter the country. On previous occasions, he and other members of the administration have emphasised that the international community has “no right to intervene in the Philippines’ affairs”.
But Duterte is not fully in the clear. In a major setback to the president, the Philippines Supreme Court has refuted the government’s argument regarding the ICC’s alleged lack of jurisdiction. In July, the highest judicial body in the country unanimously ruled that as a former state party to the Rome Statute, the Philippines must recognise the ICC’s jurisdiction for the period under which the Statute was in effect, and therefore cooperate with the court even after the withdrawal for any investigation into that period. While it dismissed petitions that aimed to nullify the withdrawal, the court was adamant that the government “shall not be discharged from any criminal proceedings”. Duterte’s spokesperson dismissed the arguments and claimed that the court’s decision would not be “legally binding”. He also argued that the Rome Statute never took effect in the country, back in 2011, because it was never published in the official gazette.
For now, the Philippines case appears to be yet another example of the limits of the international justice system in countries whose governments refuse to collaborate with the ICC. The court may count on victims’ groups, civil society organisations and legal experts within the country to support the investigation, including through digital means or meetings abroad. Former prosecutor Bensouda also said that her office has been “taking a number of measures to collect and preserve” evidence, anticipating the investigation and “aware of complex operational challenges” such as access that might arise. But the prospect that Duterte is brought to and tried in The Hague seems highly unlikely without the cooperation of local law enforcement agencies.
What happens now?
Given both the obstacles to a smooth investigation mentioned above and the slow pace of the international justice system, major developments in the legal proceedings are unlikely anytime soon. But the ICC investigation comes at a critical political juncture: Duterte’s term ends in June 2022, and the constitution bars him from running for a second consecutive term. With his government presently taking flak for its handling of the COVID-19 pandemic, the opposition may well use the criminal investigation to further discredit him.
Some observers contend that the recent announcement that Duterte would run for vice president in 2022 may be directly linked to the ICC’s investigation. While his party remaining in power would ensure the future government’s continued non-cooperation with the court, as vice president, he would also likely enjoy immunity from national prosecution as well (though Filipino legal experts are divided on that issue). The outspoken president has himself acknowledged that evading potential prosecution in national courts after he steps down was part of his motivation for running. Winning office would not necessarily protect him from the ICC: even as vice president, should a warrant be issued against him, Duterte would risk arrest if he travels to any country party to the Rome Statue that would be willing to apprehend him at the ICC’s request. But in order for the court to issue a warrant, the prosecutor will need to develop the case, and that will be difficult to do unless Manila shifts course and offers its cooperation.
The ICC investigation thus faces an uphill struggle. Indeed, even if the president’s camp were to lose the election, the successor government’s legal cooperation with the ICC is not a foregone conclusion. The biggest obstacle to Duterte facing legal proceedings may lie in his popularity with the Filipino public: although he has definitely faced rising criticism over the last several months, largely on account of the government’s tackling of the pandemic, he remains by far the most popular politician in the country. With the national political scene and many institutions stacked with his supporters, any attempt to drag him to court would likely face considerable opposition. In addition, investigations into police conduct would likely stir up a hornet’s nest, with consequences lasting far beyond Duterte’s term, which officials may be averse to doing. While they have clearly reached an unprecedented scale under Duterte’s watch, extrajudicial killings are not a new phenomenon in the Philippines, where many provinces have a long history of police vigilantism.
Georgi Engelbrecht, Senior Analyst, Philippines.