Duterte faces ICC investigation

by Perry Diaz

Back in 1989 when Rodrigo Duterte was Mayor of Davao City, he gave a shocking – and explosive – order to his death squad.

That’s according to Arturo Lascanas, a retired police officer, who accused Duterte of masterminding a campaign of extrajudicial killings (EJKs) before the Senate in February 2017.

“We were the first hit squad during his reign,” claims Lascanas, who went into hiding to escape the wrath of Duterte.

There must be some truth to it because during his 22 years as mayor of Davao City, the city had come to be known as the “Murder Capital” of the country and his hit squad earned the name “Davao Death Squad” (DDS).

Then he ran for president in 2016 with the promise to rid the country of drugs and crime – kill every drug dealer and user – and to feed their corpses to the fish in Manila Bay. DDS took on a national face and it was changed to mean “Duterte Death Squad.”

After more than four years in office, the EJKs continue with impunity. It’s estimated that more than 30,000 people have been murdered since Duterte took office.

Last June 14, 2021, Prosecutor Fatou Bensouda of the International Criminal Court (ICC) announced that she concluded her preliminary examination in the Philippines and is seeking authorization from the ICC’s judges for a full investigation into crimes against humanity, torture and other inhumane acts committed in connection with the country’s “war on drugs” between November 1, 2011 March 16, 2019.

Duterte is now in a fishbowl; the ICC is scrutinizing his every move.

Meanwhile, Agnès Callamard, Amnesty International’s Secretary General, said: “The ICC’s intervention must end this cycle of impunity in the country and send a signal to the police and those with links to the police who continue to carry out or sanction these killings that they cannot escape being held accountable for the crimes they commit.”

These include extrajudicial executions committed by police in “anti-drug operations” following incitement and encouragement by high-ranking officials, including the President.

When the ICC launched a preliminary examination into possible crimes committed in the country in February 2018, the following was revealed during the pre-Trial Chamber evaluation:

1. According to Vice President Leni Robredo, murder cases rose by 60% since Duterte took power;

2. Some 25 to 29.7 extra violent deaths occurred daily as a result of state-personnel and state-directed-vigilante EJKs;

3. 1,600 Filipinos died daily in 2017, on average, from all causes;

4. 22.3-27 average daily killings took place as a result of murders and occasional armed conflicts;

5. Under Duterte there were 27,832 traceable EJKs up to December of 2018.

Duterte repeatedly admitted publicly to the murder of Filipinos. At one point, Justice Secretary Vitaliano Aguirre II said: “Killing a class of people known as ‘drug suspects’ is not a crime against humanity because they are not human.”

Duterte and 11 other government officials including Aguirre, former PNP Director now Senator Bato dela Rosa, and Solicitor General Jose Calida were named by the ICC as defendants.

The following month, Duterte announced that the Philippines would withdraw from the Court. Obviously, it was an attempt to avoid investigation. This withdrawal took effect a year later, on 17 March 2019, but did not remove the ICC’s power to investigate crimes in the country. Duterte, however, said he will not cooperate with the probe and rejected the ICC prosecutor’s findings.

What is the ICC?
The ICC is an intergovernmental organization and international tribunal that sits in The Hague, Netherlands.

The ICC is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.

The intent is to complement existing national judicial systems and it may therefore exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals.

While the ICC lacks universal territorial jurisdiction, and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.

Since Duterte withdrew the Philippines’ membership in the ICC – to avoid prosecution – the next Philippine president may have to request the United Nations Security Council to refer Duterte’s case to the ICC.

However, if the next president belongs to the opposition party, there might be a chance that the next president would bow to pressure to prosecute Duterte. If Sara Duterte or Bongbong Marcos wins, then Duterte would presumably escape ICC prosecution.

Surmise it to say, it might take years before the ICC completes its investigation. However, as is normally the case of people facing investigation before the ICC, an arrest warrant is issued once the case is underway. This means that Interpol could arrest Duterte if he steps out of the country.

However, the ICC lacks the proper resources to enforce the laws prescribed by the Rome Statute. It is ineffective when issuing arrest warrants for individuals who have committed crimes against humanity.

Duterte just might avoid prosecution. At worst, he’d be branded as a fugitive from justice, which would prevent him from traveling outside the Philippines, lest he’d be arrested and flown to Geneva where ICC is situated.

PERRY DIAZ is a writer, columnist and journalist who has been published in more than a dozen Filipino newspapers in five countries.

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