If the Philippine government has nothing to hide, why does it fear the investigation by the International Criminal Court of the Duterte regime’s bloody war on drugs?
We signed the Rome Statute creating the ICC on December 28, 2000 because we believed then that the rationale behind it was compelling: that the ICC would exercise jurisdiction over certain international crimes, including genocide, crimes against humanity, and war crimes committed by nationals of states/parties or within the territory of states/parties.
By signing and ratifying the treaty, the Philippines agreed to cooperate with the ICC when it so requires, such as arresting and transferring indicted persons or providing access to evidence and witnesses.
But on March 17, 2018, the Duterte administration signified its withdrawal from the ICC. The withdrawal became effective one year later, on March 17, 2019.
Why did Duterte withdraw the country from the Rome Statute?
He did so because of the uproar here and abroad over the deaths of thousands of alleged drug suspects that police claimed had fought back (“nanlaban”) when they were about to be arrested, a claim contradicted by the families of the victims, per news reports.
In other words, Duterte did not want to be investigated and tried by the ICC for ‘crimes against humanity.’ He said he is willing to face trial by a local court, but not by foreigners.
Besides, Duterte claimed that while the Rome Statute was ratified by the Senate in 2011, it was never published in the Official Gazette of the Philippines, a requirement for penal laws to take effect. Hence, he said the Philippines was never a State Party ab initio.
Thus far, only four states have withdrawn from the ICC: Burundi, Gambia, Philippines and South Africa. But Gambia and South Africa have since rescinded their withdrawal, thus leaving only the Philippines and Burundi in Africa to have finally withdrawn from the ICC.
President Ferdinand Marcos Jr. has indicated that his administration has no intention of rejoining the ICC after consulting his legal advisers.
The Department of Justice vehemently opposes any ICC investigation of Duterte’s war on drugs.
It says that ICC Chief Prosecutor Karim Khan is doing the tribunal a “great disservice” by “challenging the Philippine system” for insisting on a full-blown investigation of the alleged crimes against humanity committed during the Duterte administration’s bloody war on drugs.
Moreover, the department insists there is no need for such a probe since the Philippines has already withdrawn from the ICC.
The Office of the Solicitor General takes the same stand: “Regardless of the (ICC) Pre-Trial Chamber’s ruling, the Philippine government will avail itself of all legal remedies, both domestic and international, even as it vigorously pursues its own investigation and prosecution of crimes committed in relation to the government’s so-called war on drugs, all within the framework of our own legal and judicial system.”
A contentious issue here is the complementarity principle, which states that the ICC only has jurisdiction over cases where the relevant state is unwilling or unable to investigate and, if appropriate, prosecute the case itself.
The Philippine government insists that the ICC investigation is unwarranted because the legal system here is working.
But that claim is contradicted by the glacial pace of investigations being conducted by the police and the prosecution service.
Out of the 6,300 or so official tally of deaths by the Philippine National Police from 2016 to 2021, only one case has resulted in a guilty verdict for the accused police operatives.
The rest are, in the words of the PNP, “deaths under investigation.” How long those investigations will take, we really have no way of knowing.
Human rights groups that have taken up the cudgels for the families of Duterte’s drug war victims successfully asked the Supreme Court to compel the police to furnish it with a progress report on “deaths under investigation.”
The PNP dutifully complied by releasing records of a handful of cases—around 150 out of nearly 7,000 cases, if we’re not mistaken—that human rights lawyers dismissed as “rubbish” since they said one and the same thing: the “nanlaban” narrative, and seemed to have been a flagrant copy-and-paste operation.
To the argument that our criminal justice system is working, Khan counters the Philippine government has not demonstrated “that it has conducted or is conducting national investigations or prosecutions that sufficiently mirror the investigation authorized by the Chamber…Nothing in the observations nor in the hundreds of pages of associated annexes substantiates that criminal proceedings actually have been or are being conducted in anything more than a small number of cases.”
In the end, what is likely to happen is that justice will remain elusive for the families of the more than 6,000 victims of alleged extra-judicial killings in Duterte’s bloody war on drugs.
With even the new administration unwilling to roll out the welcome mat for ICC Chief Prosecutor Karim Khan, will we see the same culture of impunity that characterized the previous administration’s six-year war on drugs to continue in the years ahead?
We hope not.