The Office of the Prosecutor (OTP) of the International Criminal Court may wrap up its preliminary probe on President Duterte’s drug war sooner than expected.
And if ICC Chief Prosecutor Fatou Bensouda finds enough evidence – andfollowing precedents –at the earliest, formal charges for international crimes may be brought, and an arrest warrant issued, against President Duterte and key officials of his deadly tokhang campaign by the end of next year.
President Duterte says ICC cannot prosecute him. Malacañang photo.
But it will really all depend on evidence showing that Philippine authorities failed to discharge its duty under the principle of complementarity to investigate and prosecutethose behind thousands of alleged extralegal killings connected to the drug war.
“During 2020,” said Bensouda in a December 5 Report, “the Office will aim to finalise the preliminary examination (PE) in order to enable the Prosecutor to reach a decision on whether to seek authorisation to open an investigation into the situation in the Philippines.”
President Duterte is accused of being the architect behind what is alleged to be a systematic and widespread targeting of civilians in the drug war that has claimed upwards of 30,000 people, according to human rights activists. Philippine authorities dispute both the numbers and the characterization of the deaths as extrajudicial or extralegal killings.
Prosecutor Bensouda said her probe zeroes in on President Duterte and top officials of the Philippine National Police and other government bodies that “actively promoted and encouraged the killing of suspected drug users and dealers” without due process.
A PE seeks to establish that there is a “reasonable basis” to proceed with an investigation into the “situation” of the drug war. The OTP said it is completing its “analysis on the admissibility of potential cases arising from the situation” in the country, based on “open source” information on the drug war.
The statement came as the governing body of world’s first permanent court created to try egregious violations of human rights met for its 18th annual assembly at The Hague in early December.
On August 30, 2011, the Philippines became a state party to the Rome Statute that established the world’s first permanent court designed to try international crimes.
The OTP’s preliminary probe covers the very beginning of President Duterte’s tokhang campaign, which he launched on July 1, 2016,and tokhang events carried out until March 16 this year, when a written notification of withdrawal from the Rome Statute filed with the UN Secretary General by the Department of Foreign Affairs at his instance, took effect.
Bensouda’s report said the ICC “retains jurisdiction over alleged crimes that have occurred on the territory of the Philippines during the period when it was a State Party to the Statute, namely from 1 November 2011 up to and including 16 March 2019.”
The Complementarity Question
Bensouda’s report indicates that the PE has now reached itsthird and penultimate stage, where the OTP tackles the question of “admissibility” or “complementarity” – whether or not courts in the Philippines are unable or unwilling to prosecute crimes over which the ICC has jurisdiction.
Here, it will look at the gravity of the alleged crimes, including their scale, nature, manner of commission, and their impact, bearing in mind the “potential cases” that would likely arise from the probe. It will also consider relevant national proceedings in relation to these potential cases.
In regard to the second point, the OTP will determine whether Philippine authorities are investigating or prosecuting the same suspects and crimes that it is also investigating. This is the so-called “Same Suspect-Same Conduct” test in ICC jurisprudence.
The test does not require that the incidents are being investigated or prosecuted by domestic authorities under the Rome Statute of the ICC.
It is enough that they are investigating or prosecuting the same suspects and the same incidents under an equivalent law. An example would be unlawful killings allegedly committed against drug suspects, and prosecuted as murders under the Revised Penal Code instead of under Republic Act 9851, the 2010 International Humanitarian Law Act, which is the implementing law of the Rome Statute in the country.
The ICC targets for prosecution those who preside over or who order the commission of international crimes. For this reason, the recent court conviction of police officers for the murder ofteenager Kian De Los Santos – noted in Bensouda’s report – during a drug operation in Caloocan City in 2017, may not be Exhibit A for the Philippine government’s resolve to prosecute EJKs. This is not to mention that the conviction is a mere drop in the ocean of thousands of killings connected to the drug war.
A finding by the OTP of inability or unwillingness to prosecute leads to a conclusion that there is a “reasonable basis” for the OTP to proceed to the next step: the preliminary investigation (PI) proper.
Fourth and last stage: interest of justice
Here, the OTP moves to the fourth and last stage of the PE, where it will consider the “interest of justice” in deciding whether to pursue a PI or not, a stage that, in the case of the Philippines, is not expected to be a protracted process.
If it rules in the affirmative, it will then file with the ICC Pre-Trial Chamber a request for an authorization through what is known as an “Article 53 (1) Report,” to begin the PI, presenting to the PTC relevant information collected and analyzed and used as a basis for the request.
ICC rules also requires the OTP to notify the Philippines of such a request.
Also, a request for authorization is the very first opportunity for victims to intervene in the proceedings. Under ICC rules, victims may make their own submissions to the PTC within 30 days of the OTP’s filing of the request for authorization.
Under yet untested ICC rules, at this stage, the Philippines – although it has already withdrawn from the court– may still opt to contest admissibility within 30 days of notice from the OTP,by informing the ICC that it is in fact investigating the crimes. Philippine authorities must do so before the PTC decides to authorize an investigation. Otherwise, the investigation will proceed.
The question of admissibility has been the bone of contention for Philippine authorities, who, if they don’t deny that extrajudicial killings have marred the drug war,deny that these killings are not being investigated or prosecuted. They further argue that Philippines courts continue to function independently, and could not thus be said to be unable or unwilling to prosecute EJKs.
To be as thorough as it can be in its preliminary probe, the OTP is even looking at the Senate’s investigation of alleged EJKs linked to President Duterte’s drug campaign, according to Prosecutor Bensouda’s December 5 Report.
ICC Prosecutor Fatou Bensouda
In the oral arguments before the Supreme Court in August last year on petitions questioning the President’s unilateral withdrawal of Philippine membership from the ICC, lawyers for the Philippine Coalition for the International Criminal Court (PCICC) argued that Philippine authorities hold an erroneous interpretation of complementarity.
Citing ICC jurisprudence, they said it is not based on the state’s theoretical capacity to investigate and prosecute international crimes but on its inaction. The Philippine government’s interpretation “would result in a situation where, despite the inaction of a State, a case would be inadmissible before the Court, unless that State is unwilling or unable to open investigations.”
The Supreme Court however has yet to resolve the petitions.
How soon may the PTC act on a request for authorization?
There is no prescribed period on the PTC’s action on such a request, but it may happen as soon as only month after the filing of the request. This is what happened in the case of Burundi. Here, the OTP requested authorization on September 5, 2017, and the Third Chamber of the PTC granted the request a little over a month later, on October 25, 2017.
Another example, that of our ASEAN neighbor Myanmar, the period involved was around five months. On July 4, 2019, Prosecutor asked the Third Chamber of PTC to open an investigation into alleged genocide against the Rohingya people in Myanmar.On November 19, 2019, the PTC granted the request.
Arrest warrant or summons?
What happens if the PTC authorizes a PI? The PE is an initial stage of the investigation, while the PI is its intermediate stage, where the OTP continues its probe of the drug war, this time narrowing it to “potential cases” out of a whole universe of incidents.
Once the PTC authorizes the PI, it will “at any time after the initiation of an investigation”, and at the OTP’s instance, issue a warrant of arrest. A warrant is issued to ensure that a suspect appears at trial, or does not endanger or obstruct the investigation or the court proceedings or, to prevent the person from continuing to commit the crimes.
For the PTC to grant a warrant application, “the evidence need only establish a reasonable conclusion that the person committed a crime within the jurisdiction of the Court, and it is not required that this be the only reasonable conclusion that can be drawn from the evidence.”
The issuance of a warrant of arrest transforms the proceedings into a case proper, where a suspect is now considered to have been formally charged – or indicted – for international crimes.
However, under ICC rules, a suspect only becomes an accused standing for criminal trialif the PTC confirms the charges, in which case the proceeding is transferred to the ICC Trial Division (which is now headed by the lone Filipino judge in the international tribunal, Raul C. Pangalangan).
Following an arrest or surrender of a suspect, the PTC immediately holds “confirmation of charges” hearing – that is, to determine whether the case should go to trial. Under exceptional circumstances, a confirmation of charges hearing may be held in absentia, or without the presence of the suspect.
The confirmation of charges is analogous to but more elaborate than the procedure for judicial determination of probable cause in Philippine courts, except that it is carried out by a distinct and separate body for the ICC- the PTC.
The PTC may also issue a “sealed warrant” – a warrant issued confidentially – to increase the likelihood of a suspect being arrested and brought to trial.
However, the PTC may also issue to a suspect a summons to appear on reasonable grounds that the suspect will appear voluntarily before the Court, although restrictions on the person’s liberty (other than detention) may also be imposed on a suspect who accepts the summons.
It is unlikely that President Duterte will consent to either procedure.
May a sitting Head of State like Duterte be investigated by the ICC?
The Appeals Chamber of the ICC decided this question in May this year in the case of the former Sudanese president Omar Al-Bashir.
In a hotly-debated resolution issued at Jordan’s application, the Appeals Chamber held that there is no Head of State immunity under customary international law vis-à-vis an international court. Thus, member-states have a duty to cooperate with the ICC in enforcing arrest warrants against a sitting Head of State.
The Al-Bashir case illustrates the many challenges faced by the ICC as an international tribunal created to prosecute impunity anywhere in the world.
Al-Bashir faces standing international arrest warrants in connection with numerous war crimes and crimes against humanity he is accused of committing during his 30-year bloody reign as a dictator. Yet, despite an international travel ban, he was able to ,make diplomatic trips to countries like Egypt, Saudi Arabia, and South Africa.
And yet, during his South African trip in 2015, he had to fly back to Sudan in haste after human rights groups filed court suits to enforce the arrest warrants against him. The South African government then withdrew its membership in the ICC, but the South African Constitutional Court invalidated the withdrawal for being unconstitutional.
In April this year, Al-Bashir was ousted from power by the Sudanese armed forces following months of unrest in the streets over Sudan’s floundering economy. He is now facing trial before a domestic court – not for war crimes and crimes against humanity – but for massive corruption.
Al-Bashir’s case has remained at the pre-trial stage before the ICC because the international tribunal’s rules prohibit trials in absentia.
* Mr Bagares teaches public international law at Lyceum Philippines University. He is lead counsel for the PCICC in its constitutional challenge against President Duterte’s decision to withdraw Philippine membership from the ICC without the consent of the Senate. The opinions expressed in this essay are solely his and do not reflect those of any of the organizations he is part of.