"The Chamber decision lifts heavily from and quotes extensively Prosecutor Fatua Bensouda’s submissions."
At the onset, I would like to mention that the Chamber decision lifts heavily from and quotes extensively Prosecutor Fatua Bensouda’s submissions as found in her Request for Investigation, to signify its agreement to the Prosecutor’s findings and observations as stated in her Request for investigation.
As such, the reader will notice that many portions of the Chamber decision reflect the Prosecutor’s submissions, findings and observations unless the Chamber decides to inject its own evaluation and assessment on certain matters under consideration.
Aside from the procedural aspect which we introduced in the first segment of this series, the International Criminal Court Pre-Trial Chamber also touches on its jurisdiction over the cases levelled by Prosecutor Fatua Bensouda against Philippine President Rodrigo Duterte in the context of the war on drugs.
The Chamber agrees with the Prosecutor that the crime, as alleged by the Prosecutor against President Duterte, is the crime against humanity of murder. How is this crime defined in the Rome Statute? Under Article 7(1)(a) of the Statute, a crime against humanity involves “any of the specified acts that are listed (‘underlying acts’) when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (‘contextual elements’).”
The Chamber notes that the “Prosecution provides a reasonable basis to believe that, between at least 1 July 2016 and 16 March 2019, members of Philippine security forces and other, often associated, perpetrators deliberately killed thousands of civilians suspected to be involved in drug activities. According to the Prosecutor, the relevant killings can be grouped into two broad categories: (i) those perpetrated during official law enforcement anti-drug operations or in closely related contexts; and (ii) those perpetrated outside of official operations.”
The Chamber also takes into account the materials submitted by non-governmental organizations and media reports, communications from organizations received under Article 15(1) and (2) of the Statute, and official documents, which the Prosecutor further expounded into the two categories including:
First, the killings committed during official law enforcement anti-drug operations, such as —
1. during purported ‘buy-bust’ operations,
2. killings during purported ‘Tokhang’ operations (police visits to drug suspects at their homes in order to urge them to abandon their involvement with drugs and to surrender to the police),
3. killings in the context of ‘One Time, Big Time’ operations,
4. killings in other official operations, such as at checkpoints, during patrols or during search or arrest operations, and,
5. killings of persons acknowledged to be in police custody or detention.
Included under the second category are the killings outside of official law enforcement operations which, as alleged by the Prosecutor, are killings where “there is information of a link to the so-called ‘war on drugs’ campaign, as ‘the perpetrators of such killings appear to include law enforcement officers who sought to conceal their true identity, private actors who coordinated with and were paid by the police, and in some cases other private individuals or groups instigated to act by the government’s [‘war on drugs’] campaign and statements by President Rodrigo Duterte calling for drug suspects to be killed’. Moreover, the Prosecutor alleges that the victim profile, motives and modus operandi indicate that there is a link to the so-called ‘war on drugs’ campaign,” the Chamber adds.
The Chamber further states that, “the supporting material provided by the Prosecutor sustains at this stage of the proceedings the submission that persons were killed by Philippine security forces or by other persons in execution of the so-called ‘war on drugs’ campaign after 1 July 2016. Killings as part of the so-called ‘war on drugs’ were also referred to in the vast majority of the victims’ representations received xxx.”
On the killings during ‘buy-bust’ operations, the Chamber reiterates the Prosecutor’s discussion in the Request, citing Article 15(3), mentioning a number of specific scenarios in which killings occurred. The Chamber takes into account the Prosecutor’s allegation that, “the first of these are killings during ‘buy-bust’ operations, defined and regulated in the police manual on anti-illegal drugs operations. Essentially, ‘buy-bust’ operations involve a ‘poseur buyer’ engaging in a transaction with a drug suspect, for the purpose of effecting an arrest.”
Also mentioned are concrete examples of killings provided by the Prosecutor that allegedly occurred during Tokhang operations, killings during so-called ‘One Time, Big Time’ operations as well as killings during other official operations.
At this point, the Chamber again touches on the consistent claim of self-defence by security forces noting that the claim is discredited by the systematic existence of “contradicting accounts of the killings, centering on the question of whether there existed in each case circumstances justifying the use of lethal force by the Philippine security forces.”
By way of example, the Chamber notes that the “Philippine security forces have acknowledged that persons were killed during anti-drug operations, but have consistently claimed that the deaths resulted from officers acting in self-defense.
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