"In its 38-page decision, the Pre-Trial Chamber resolves procedural as well as substantive issues in support of its decision."
Last 15 September 2021, the Pre-Trial Chamber I of the International Criminal Court (ICC) approved the start of the probe into the crimes against humanity cases filed against President Rodrigo Duterte in connection with the drug war killings.
Following Article 15(4) of the Statute, the International Criminal Court Pre-Trial Chamber found that there was reasonable basis to proceed with an investigation, noting that specific legal element of the crime against humanity of murder under Article 7(1)(a) of the Statute has been met with respect to the killings committed throughout the Philippines between 1 July 2016 and 16 March 2019 in the context of the so-called 'war on drugs' campaign, as well as with respect to the killings in the Davao area between 1 November 2011 and 30 June 2016. The action by the Chamber was the favourable response to the Prosecutor's request and supporting material to open an investigation into the Situation in the Philippines, as provided for in Article 15(3) of the Rome Statute.
In the next few columns, I shall highlight the salient features of the Chamber’s decision to grant the Prosecutor’s request for investigation, wherein the Chamber emphasizes that the so-called 'war on drugs' campaign “cannot be seen as a legitimate law enforcement operation, and the killings neither as legitimate nor as mere excesses in an otherwise legitimate operation. Rather, the available material indicates, to the required standard, that a widespread and systematic attack against the civilian population took place pursuant to or in furtherance of a State policy, within the meaning of Article 7(1) and (2)(a) of the Statute.”
The Chamber further notes in its decision that “While the relevant crimes appear to have continued after this date, the Chamber noted that alleged crimes identified in the Article 15(3) Request are limited to those during the period when the Philippines was a State Party to the Statute and was bound by its provisions. The Philippines has since withdrawn its membership to the Rome Statute.”
Accordingly, the investigation will cover crimes committed from Nov. 1, 2011, to March 16, 2019. Note that in 2011, Duterte was vice mayor of Davao City, as his daughter Sara Duterte-Carpio was mayor of the city due to term limits. He was elected president in the May 2016 elections.
In its 38-page decision, the Pre-Trial Chamber resolves procedural as well as substantive issues in support of its decision.
On the Procedure aspect, the Chamber examines the mandate of the prosecutor as well as its limitations in the conduct of the investigation stage of the proceedings. Thus, to quote the relevant portions of Article 15 –
“The procedure for initiating an investigation upon the Prosecutor’s own initiative is regulated by Article 15 of the Statute. This provision subjects the Prosecutor’s power to open an investigation proprio motu to the judicial scrutiny of the Pre-Trial Chamber. Article 15(3) provides that, ‘[i]f the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected’.”
On the limitations on the Chamber at the investigation stage of the proceedings, the decision cites Article 15(4) of the Statute which clearly states: “[i]f the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.”
This limitation, the decision points out, ensures the Chamber’s judicial control of the motu proprio powers by the Prosecutor and curb any possible abuse of power, as well as confirms the existence of a reasonable basis to proceed with an investigation. On the standard of proof, the Chamber states that the ‘reasonable basis to proceed’ is the lowest evidentiary standard as provided for in the Statute. On the basis of this evidentiary standard, the Chamber explains that the relevant material required as one that neither point towards one conclusion nor to be conclusive. Instead, what is deemed adequate, according to the Chamber, is a “sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed must be established.”
On the matter of the victims’ representations, the Chamber, citing Article 15(3) of the Statute, says that as per assessment by the Registry, 204 victims’ representations falling within the parameters of the situation were made. Of these, four were treated as individual representations while 200 as collective representations made on behalf of victims covering 1,530 individual victims and 1,050 families. In a survey, around 94 % of victims who have made representations favour an investigation citing a variety of reasons such as, the need for an impartial international court, to bring the perpetrators to justice, put an end to impunity, deter future crimes, ferret out the truth about what happened to victims and dispel any false accusations, and allow for victims’ voices to be heard.
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