“It is a matter of time.”
In the preceding columns we featured the main points of the International Criminal Court Pre-Trial Chamber’s findings that criminal elements, namely – an attack against a civilian population, that such an “attack”, or multiple commission of act is a State policy by the party, there is present a sufficient nexus to an attack against a ‘civilian’ population – are attendant in connection with the crimes against humanity possibly committed in the Philippines during and by the Duterte Administration.
In the concluding article of this series, we shall examine the discussions of the Chamber on another criminal element, i.e. whether such an attack committed against the civilian population is widespread and systematic in nature.
After due consideration of the Prosecutor’s submissions, the Chamber concludes that the attack against the civilian population was indeed widespread and systematic. Being widespread in 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. This conclusion holds true even if we only consider the official figures as to the number of persons killed in the context of the so-called ‘war on drugs’ campaign in 2016-2019. That it was also systematic in character is expressed with respect to the policy requirement.
Rodrigo Duterte served as mayor of Davao for multiple terms, i.e., 1988-1998, 2001-2010 and 2013-2016. On the killings in the Davao area in 2011-2016, the Chamber supports the Prosecutor’s submissions as concerns the alleged killings in the city. As stated by the Prosecutor, “these events ‘closely resemble’ the killings as part of the so-called ‘war on drugs’ campaign in 2016-2019, and that they should for that reason be included in the authorised investigation.” As such, the Chamber supports the findings that “there exists information sufficiently linking the killings in the Davao area in 2011-2016 to the relevant facts of the so-called ‘war on drugs’ campaign as discussed above. In particular, there are records of public statements by Rodrigo Duterte supporting and encouraging the killing of petty criminals and drug dealers in Davao.” The Chamber points out the similarity of these public statements to “those made before and during the so-called ‘war on drugs’ campaign, and indeed appear to form a coherent progression.” According to available information, some of the persons involved in the Davao Death Squad even appear to be the same. There are also similarities in the modus operandi used.
For this reason, the Chamber believes that there are similarities between the killings in the Davao area in 2011-2016 and the so-called ‘war on drugs’ campaign which merit further investigation. However, at this stage of the proceedings, the Chamber “does not deem it necessary to delve in any further detail into the question of how precisely the contextual elements of crimes against humanity may be met in respect of the killings in the Davao area in 2011-2016.”
In conclusion, the Chamber is of the belief that the authorization to investigate that the contextual elements of crimes against humanity under Article 7 of the Statute with respect to the killings in the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called ‘war on drugs’ campaign have been sufficiently established. It 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.”
Upon issuance of the decision of the Chamber, the new ICC Prosecutor Karim Khan released a statement, excerpts of which include:
“In their ruling, the Judges of Pre-Trial Chamber I accepted that there is a reasonable basis to believe that the crime against humanity of murder appears to have been committed. The Judges also noted, as my Office did in its Request, reports of torture and inhumane acts, imprisonment or other severe deprivation of liberty, enforced disappearance, and sexual violence. The Judges authorised my Office to investigate such other crimes, as long as they remain within the parameters of the authorised investigation.
While the Philippines’ withdrawal from the Rome Statute took effect on 17 March 2019, the Judges of the Pre-Trial Chamber confirmed my Office’s position that the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 March 2019.
My investigation will seek to uncover the truth and aim to ensure accountability. We will focus our efforts on ensuring a successful, independent and impartial investigation. In doing so, we aim to bring justice to the victims and affected communities, and count on the support and cooperation of States Parties, civil society and other partners.”
The stage is set. In my view, it’s only a matter of time before an arrest warrant is issued against Duterte and possibly Senator Bato dela Rosa. Indeed, as has been attributed to Martin Luther King, “the arc of the moral universe might be long, but it bends towards justice.
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