“Under the Rome Statute’s core principle of complementarity, States always have the first opportunity to investigate allegations of such crimes committed on their territory or by their nationals. However, when national authorities fail to act, the Court must step in, and that is why I have filed today’s application.”
By ANNE MARXZE D. UMIL
MANILA – Human rights groups welcomed International Criminal Court Prosecutor Karim Khan’s request to the Pre-Trial Chamber I to resume the investigation of drug-related killings in the Philippines despite the Philippine government’s request to defer it.
Khan said that after carefully looking into all information submitted by the Philippine government, he concluded that the request to defer the investigation is not warranted and that “it should resume as quickly as possible.”
He filed his application seeking authorization to resume investigation on June 24.
In a statement, the National Union of Peoples’ Lawyers described this as a “fitting cap and parting shot to President Rodrigo Duterte as he serves his last days in office.”
“The prosecutor’s searing rejection of the Philippine government’s request for deferral of the investigation is a definitive statement that an investigation, and eventually, a case is timely and necessary,” the lawyers’ group said in a statement.
Karapatan Secretary General Cristina Palabay also said that Khan’s statement only affirms the observations and reports of the families and supporters of victims of extrajudicial killings in the government’s campaign against illegal drugs, “that there have been no meaningful steps by the Duterte administration to investigate and obtain justice for the victims and that domestic mechanisms have failed to prosecute those who committed, incited and ordered the said crimes.”
Deferral request not substantiated
It was in November last year when Khan announced that it has temporarily suspended the investigative activities after the Philippine government requested to defer it. The Philippine government claims that it was looking into the alleged cases in drug-related killings citing the Department of Justice’s investigation of 52 cases of deaths.
Looking into all submitted information, Khan concluded that “the majority of the information provided by the Philippine Government relates to administrative and other non-penal processes and proceedings which do not seek to establish criminal responsibility, and therefore cannot warrant deferral of the ICC’s criminal investigation.”
“The various proceedings referenced by the Philippines also fail to sufficiently mirror the authorized ICC investigation, as required by articles 17 and 18 of the Rome Statute, because the Philippines has not asserted that it is investigating any conduct occurring in Davao from 2011 to 2016, any crimes other than murder, any killings outside official police operations, any responsibility of mid- or high-level perpetrators, or any systematic conduct or State policy,” Khan said.
According to Khan, the four initiatives cited by the Philippine government are not penal in nature but merely administrative proceedings. These are: desk review conducted by the DOJ Panel, the special remedy of the writ of amparo and the activities associated with the Administrative Order No. 35 Committee and the United Nations Joint Programme on Human Rights (UNJPHR).
Khan said that the desk review by the DOJ panel is merely administrative and does not constitute investigative activity within the framework of article 18(2) of the Rome Statute.
Khan said that the 911 pages of material on four writ of amparo proceedings related to drug operations, “do not demonstrate the existence of any investigations conducted to establish criminal responsibility of any of the persons mentions in the petitions.”
He also said that “none of the four amparo proceedings referenced by the GovPH have led to criminal investigations.” Despite the considerable volume of material provided, Khan said the “Philippine government provided no substantiation of concrete investigative steps to ascertain the criminal responsibility of any of the alleged police perpetrators.”
He also said that neither the AO No. 35 Committee and the UNJPHR is relevant under articles 17(1) and (18) of the Statute.
The UNJPHR is a capacity-building and technical cooperation program between the Philippine government and the UN to be implemented from 2021 to 2024.
Khan also noted that none of the materials provided by the Philippine government would show that it is conducting or have conducted investigations or prosecution on the alleged crimes committed in Davao between 2011 to 2016.
“The GovPH’s failure to identify any investigative steps pr prosecution whatsoever with regard to these allegations alone justifies authorizing the resumption of the Court’s investigation,” Khan said in his request.
The cases referred to the National Bureau of Investigation and the cases collated from the dockets of the national and regional prosecution offices also do not support the deferral of the ICC’s investigation.
“Similar to the cases referred to the NBI, they too reflect only a fraction of incidents and mention only low-level perpetrators. They fail to reflect the scope, breath, and gravity of the potential cases within the parameters of the Court’s investigation into the situation,” Khan said.
Khan reiterates that there are clear indications that crimes against humanity were committed in the Philippines.
“Under the Rome Statute’s core principle of complementarity, States always have the first opportunity to investigate allegations of such crimes committed on their territory or by their nationals. However, when national authorities fail to act, the Court must step in, and that is why I have filed today’s application,” Khan said in his statement.
Victims will proceed
The NUPL, who has been consistently assisting the families of those slain in the government’s so-called war on drugs, said that at the soonest possible opportunity, the victims will proceed with the registration of participation in the ICC proceedings.
They vow that they will continue to assist the victims “who are pushing for an investigation in the Philippines, and prepare ourselves for eventual trial.”
They also note with great satisfaction Khan’s “methodical and meticulous analysis, as well as emphasis on substance over quantity, of the documents provided by the Philippine government.”
“In paying attention to ‘concealment practices’ by law enforcement, the prosecutor mirrors our own experience in documenting and prosecuting killings in the domestic arena,” said Maria Kristina Conti, assisting counsel from NUPL for the families under the Rise Up for Life and for Rights, an organization of families slain in Duterte’s war on drugs.
“Ultimately, we wholeheartedly agree with the prosecutor that the Philippine government ‘has provided no indication that it has investigated any pattern of criminality or systematicity, including by those who would appear to be most responsible for conceiving or implementing a policy,” she added.
Meanwhile, Palabay said Duterte will end his term on June 30 with a “bloody trail of lives claimed by the state violence and a long list of human rights violations committed with impunity as his notorious legacy.”
“Justice and accountability are words and concepts that Duterte and his cohorts disregard – but the victims, their families and human rights advocates will continue to persevere to pursue these,” Palabay said. (RVO)