By Artchil B. Fernandez
“Today, I announce that the preliminary examination into the situation in the Republic of the Philippines (“the Philippines”) has concluded and that I have requested judicial authorization to proceed with an investigation,” out-going International Criminal Court (ICC) prosecutor Fatou Bensouda pronounced this week. Once the authorization is granted, the case of Du30, et al. before the international tribunal moves to the next phase which is a formal investigation.
With the announcement, the noose tightens around Du30 and his accomplices’ necks. To recall, a case was filed before the ICC in April 2017 for crimes against humanity by murder for the slaughter of thousands (official figure is 7,117 while estimates by human rights groups is at 30,000) in relation to the bloody and gory “war against illegal drugs,” the flagship program of Du30.
Aside from Du30, the other respondents to the complaint are: former Justice Secretary Vitaliano Aguirre, former House Speaker Pantaleon Alvarez, then PNP chief and now senator Bato de la Rosa, Supt. Edilberto Leonardo, Supt. Royina Garma, former Interior and Local Government Sec. Ismael Sueno, SPO4 Sanson “Sonny” Buenaventura, former National Bureau of Investigation Director Dante Gierran, Solicitor General Jose Calida, Senator Richard Gordon and then-Senator Alan Peter Cayetano.
In February 2018, then ICC prosecutor Fatou Bensouda opened a preliminary examination on the case which outraged Du30. He withdrew Philippine membership to ICC the following month. Bensouda insists that based on the Burundi situation, the examination proceeds. The ICC acquires jurisdiction on the case since the incidents happened when the Philippines was still a party to the Rome Statute. There is a pending case before the Supreme Court questioning Du30’s decision to withdraw from ICC.
After the completion of preliminary examination, the former prosecutor found that there is basis to proceed to the next phase of the process, formal investigation. “Following a thorough preliminary examination process, the available information indicates that members of the Philippine National Police, and others acting in concert with them, have unlawfully killed between several thousand and tens of thousands of civilians during that time,” Bensouda said in a statement.
In her 57-page report, Bensouda stated that there is “reasonable basis to believe” that mass killings in the war on drugs were “committed as part of a widespread and systematic attack directed against a civilian population pursuant to or in furtherance of a state policy.”
“These extrajudicial killings,” Bensouda wrote “perpetrated across the Philippines, appear to have been committed pursuant to an official state policy of the Philippine government. Police and other government officials planned, ordered and sometimes directly perpetrated EJKs. They paid police officers and vigilante bounties for EJKs.” Most surprising, Bensouda widened the investigation which now includes the killings in Davao from 2011 to 2016 when Du30 was mayor.
Bensouda also debunked the Du30 administration’s denials. “Contrary to official claims, many war on drugs killings by law enforcement were not justified,” she stated. “The use of force employed appears to have been unnecessary and disproportionate under the circumstances, and the killings therefore arbitrary and unlawful.”
Once the pre-trial chamber grants the authorization to proceed, formal investigation begins. During the investigation, evidence are gathered and suspects are identified. Summons are issued to people to appear before ICC judges and if they refuse arrest warrants are issued. The ICC relies on member-states to make the arrests and hand over the suspects to the international tribunal.
Defiant, Du30 said his administration will never cooperate with the investigation. In 2018 he threatened to arrest the ICC prosecutor should Bensouda conduct an investigation in the country. “You cannot exercise any proceedings here without basis. That is illegal and I will arrest you,” Du30 warned her.
Du30’s rantings and saber-rattling will be tested in the investigation phase of the case. His cooperation is not critical since the ICC can proceed without him on board. Du30, however, is in a disadvantageous position if he will not cooperate since he denies himself the chance to defend his position.
But the hardest part for Du30 and his co-accused is their world will get smaller once the investigation starts. They cannot travel to countries that are member-states of ICC especially if summons, or worse, arrest warrants are issued. What happened to aging former Chilean dictator Pinochet when he visited London in 1998 for medical purpose should remind Du30 and his co-accused of the fate that awaits them. Pinochet was arrested on charges of human rights violations committed by his regime in 1973.
In the most recent case, former Sudanese President Omar al-Bashir has standing arrest warrants issued by ICC in 2009 and 2010 for crimes against humanity, war crimes and genocide in Darfur. He is the first sitting head of state in the wanted list of ICC and has difficulty traveling abroad. Du30 is about to join him in the infamous wanted list.
Du30, Bato de la Rosa, Jose Calida, Alan Peter Cayetano, Vitaliano Aguirre and other police officers are in a tight and difficult situation. While being unable to go abroad may not affect Du30, the others are having nightmares about the prospect. The rope around their neck is tightening with the recent development in the ICC.
This is a grim warning to autocrats, dictators, and tyrants. Their hold to power is not forever and they will be held into account for their grave abuses and high crimes.
