Highlights: ICC Pre-Trial Chamber I Decision Authorizing Phl Drug War Probe

A pre-trial chamber of the International Criminal Court (ICC) has authorized the conduct of an investigation into alleged crimes against humanity committed in the Philippines in relation with the deadly campaign against illegal drugs of the Duterte administration.

In its 41-page decision released on Wednesday night, Sept. 15, Judges Péter Kovács, Reine Adélaïde Sophie Alapini-Gansou and María del Socorro Flores Liera granted the request of the ICC Office of the Prosecutor to initiate an investigation on the situation in the Philippines.

“The Chamber concludes that there is a reasonable basis for the Prosecutor to proceed with an investigation, in the sense that the crime against humanity of murder appears to have been committed, and that potential case(s) arising from such investigation appear to fall within the Court’s jurisdiction,” read the decision.

It ruled that the specific legal element of the crime against humanity of murder 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.”

Aside from cases related to the drug war, the probe will also cover killings in the Davao area between Nov. 1, 2011 and June 30, 2016, when Duterte was either the mayor or vice mayor of Davao City.

Read More: ICC Authorizes Probe Into Duterte's War On Drugs, Davao Killings

Here are the highlights from the decision of the ICC Pre-Trial Chamber I:

People killed due to ‘war on drugs’

According to the ICC Pre-Trial Chamber, there appears “no controversy at all” over the claim that Filipino were killed in connection with the government’s war against illegal drugs.

Citing supporting material submitted by the ICC prosecutor, the chamber considered it established that members of the Philippine security forces killed persons as part of the campaign.

“Indeed, the Philippine Drug Enforcement Agency publicly communicated 5,281 as the number of ‘drug personalities who died in anti-drug operations’ between 1 July 2016 and 28 February 2019.

What is in dispute however are the circumstances in which these killings took place – according to the available information, the Philippine authorities systematically claimed that the use of lethal force was lawful in the individual cases.”

Law enforcement personnel, read the decision, reported deaths of alleged drug suspects during buy-bust, Tokhang, “One Time, Big Time” and other operations such as anti-criminality patrols and raids.

It also noted instances wherein drug suspects were killed while under police custody, supposedly after engaging in a form of violence such as waving a weapon or attempting to take an officer’s weapon.

“It is clear from the above overview of the available information that there systematically exist 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.

In particular, 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).”

The claim of self-defense

The ICC pre-trial chamber judges stated that the investigation must address the question of whether a particular perpetrator acted in self-defense.

They said it would be premature for them to make authoritative determinations of facts or establish which of the competing versions of events is true as it is still under investigation.

Police have repeatedly used the “nanlaban” narrative to explain the deaths of drug suspects during operations.

Human rights groups, as well the Commission on Human Rights, has repeatedly urged law enforcement agencies to file cases in courts, stressing that only a judge can decide on whether the officers really acted in self-defense.

In its decision, the ICC Pre-Trial Chamber I noted witness statements contradicting the official claim of self-defense of law enforcers.

“In some instances, surveillance footage or other video also contradicted official accounts. Some victims were last seen alive in police custody, yet the official report indicated that killings occurred during a buy-bust or similar operation

The supporting material also contains records of police insiders stating that killings were planned in advance and that the self-defence scenario was simply staged.”

It also cited reports that the police planted evidence in some crimes scenes, noting information that guns bearing the same serial have been recovered in different locations.

Other killings, crimes

Aside from deaths during law enforcement operations, the chamber also concluded that the Prosecutor’s submission has “sufficiently established” that private individuals killed persons as part of the war on drugs.

“There is information that members of law enforcement in plain clothes perpetrated killings, after which measures were taken to make the killings appear as if they had been perpetrated by private actors.

There is also indication that private perpetrators were hired and operated under the supervision of police forces, or that they otherwise relied on a connection to the police in order to perpetrate the killings.”

Victim representations also make reference to crimes other than murder, including inhumane acts and torture; imprisonment or other severe deprivation of liberty and enforced disappearance; and sexual violence

Systematic, widespread attack

Citing available information, the ICC pre-trial chamber said a clear pattern of killings can be discerned covering the main period under examination within and the territory of the Philippines.

Supporting materials, it added, established a widespread and systematic attack against the civilian population in the country in the context of the war on drugs.

Its widespread character is indicated by the estimates of the aggregate number of victims, as well as by its territorial extent, comprising the entire territory of the Philippines.

The systematic character of the attack against the civilian population, on the other hand, is discernible at this stage on the basis of the same considerations as expressed just above with respect to the policy requirement.

It maintained that the war on drugs cannot be seen as a legitimate law enforcement operation, noting that operational procedures on the use of lethal force in law enforcement operations appear to have been ignored.

State policy, lack of meaningful probe

The ICC pre-trial chamber judges said it is also apparent that the attack “took place pursuant to or in furtherance of a State policy.”

It cited repeated pronouncements of the President encouraging the killings of drug dealers and users, as well as statements made by other officials such as former Philippine National Police chief and now Sen. Ronald Dela Rosa.

Explaining its observation, the chamber noted a marked increase in killings of persons allegedly involved with drugs when Duterte assumed the presidency, as well as the reduction of the number of killings during instances when the drug war was suspended.

“The supporting material indicates that the Philippine authorities have failed to take meaningful steps to investigate or prosecute the killings. It appears that only few cases have proceeded to trial, and that only the case of the murder of Kian Delos Santos has proceeded to judgment.

In fact, the Presidential Communications Operations Office listed the deaths of ‘drug personalities’ in anti-drug operations among the key accomplishments in ‘The Duterte Administration Year-End Report’ for the year 2017.

Killings in the Davao area

The ICC Pre-Trial Chamber I also authorized the inclusion in the investigation of killings reported in the Davao area before Duterte assumed the presidency.

It said that similarities between the killings in the Davao area and the so-called “war on drugs” campaign merit further investigation.

“According to available information, some of the persons involved appear to be the same. In fact, there is information that some police officers were transferred from Davao to Manila upon Rodrigo Duterte’s assumption of the Presidency. Similarities in the modus operandi are also discernible.

In particular, there are records of public statements by Rodrigo Duterte supporting and encouraging the killing of petty criminals and drug dealers in Davao. These public statements are similar to those made before and during the so-called ‘war on drugs’ campaign, and indeed appear to form a coherent progression.”

Jurisdiction

Contrary to Malacañang’s claim, the ICC Pre-Trial Chamber I stressed that it still has jurisdiction with respect to alleged crimes that occurred in the Philippines from Nov. 1, 2011 up to March 16, 2019 when it was a State Party to the Rome Statute, the treaty that established the ICC.

“This is in line with the law of treaties, which provides that withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination.

The Court’s exercise of such jurisdiction is not subject to any time limit, particularly since the preliminary examination here commenced prior to the Philippines’ withdrawal.”

Read More: ‘ICC Can Pursue Phl Probe Sans Gov’t Cooperation’