Champa Patel
Head of Asia Programme
The International Criminal Court’s move is important, but it will have to contend with challenges to its credibility, procedural difficulties and managing expectations.
A policeman in Manila investigates the scene where the body of an alleged drug user lies after being killed by unidentified assailants on 8 December 2017. Photo: Getty Images.A policeman in Manila investigates the scene where the body of an alleged drug user lies after being killed by unidentified assailants on 8 December 2017. Photo: Getty Images.

After winning a landslide victory in June 2016, President Rodrigo Duterte of the Philippines immediately fulfilled a campaign promise and instigated a so-called ‘war on drugs.’ He publicly endorsed the arrest and killing of suspected drug users and sellers, even going so far as to promise the police there would be no repercussions for their actions.

International human rights organizations, such as Human Rights Watch, have documented that 3,906 suspected drug users and dealers died at the hands of the police from 1 July 2016 to 26 September 2017 while unidentified gunmen have killed thousands more, bringing the total death toll to more than 12,000. This is an incredible increase when it is considered that in the six months before Duterte assumed power only 68 people died at the hands of the police in drug-related incidents. There has been a wider ripple effect, with hundreds of thousands of people giving themselves up to the police in the fear they may be targeted next.

Last week Fatou Bensouda, the International Criminal Court prosecutor, announced there would be a preliminary examination on extrajudicial killings in the context of police anti-drug operations. This is an important step forward for the many victims, advocates and international supporters who argue that large-scale abuses have been committed with complete impunity, and who also believe justice is not possible within the country when the highest levels of government have promised to protect the police. But there are three challenges to a successful investigation: the credibility of the court, procedural challenges and expectations.

Duterte has previously called the Court’s credibility into question, saying it was ‘hypocritical’ and ‘useless’ and daring them to take him to court. He has, conversely, also threatened to withdraw his country’s membership. Since the news broke of the examination, Duterte complained about the focus being on him when it isn’t on other countries such as the UK, US and places in the Middle East. Closer to home, where Duterte continues to enjoy high levels of popularity, some organizations are arguing that the ongoing Rohingya crisis in Myanmar is genocide and that the ICC should be involved. Duterte has also made this comparison himself.

Here there is a danger that two distinct cases, with their own subtleties and nuances, could be reduced to a simplistic binary of why the Philippines and not Myanmar. Based on the documentation undertaken by human rights NGOs there is a strong case for ICC involvement in Myanmar however, unlike the Philippines, any progress on this front is difficult. Myanmar is not a party to the Rome Statute, so the court has limited jurisdiction over any crimes committed. Additionally, while the UN Security Council can refer situations to the ICC, it is highly unlikely China would allow this to happen in the case of Myanmar.

There are also several procedural challenges to overcome. Preliminary examinations can be notoriously slow, so quick proceedings are essential to ensure justice for any victims of international criminal law violations. However, this is made difficult in cases like the Philippines where the president himself is implicated in the possible crimes that have taken place. Despite the Philippines National Police and the Philippine’s Drug Enforcement Agency saying they will provide date, the question still remains whether it is realistic to believe that the Philippines will cooperate fully in providing evidence for the investigation. Furthermore, given the president has promised cover to those who have committed any wrongdoing, it is unclear how witnesses – often speaking at great risk to themselves – can be adequately protected.

But perhaps a greater tension is the issue of complementarity, which means that, in practice, the ICC will only hear cases where the state is unable or unwilling to do so. Duterte’s spokesperson, Harry Roque, has argued that domestic law, such as the 2009 Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes against Humanity, provides a domestic legal framework for pursuing any investigations.

However, there are relatively few cases pending in the courts and no one, to date, has been held accountable for drug-related killings. Arguably, the administration has shown no serious willingness or ability to address the alleged crimes. Given that the above law also states that a president enjoys constitutional immunity during their tenure, it is even more difficult to believe that domestic courts could investigate thoroughly all aspects of the case.

The final challenge is managing expectations. Preliminary examinations can take years to conclude; for example, the examination on Colombia began in 2004 and has yet to conclude. And an examination, in and of itself, may not necessarily lead to indictments or a case going forward. Furthermore, a preliminary examination is just that – it considers whether there is a reasonable basis for commencing an investigation into alleged crimes, taking into the account criteria set out in the Rome Statute: jurisdiction, admissibility and interests of justice. It is just the start of the process.

That does not mean the preliminary examination does not have importance. Victims of the alleged abuses should not be ignored, and there is a vital need for an international independent enquiry. Advocates for human rights should continue to push for the preliminary examination to happen in a timely manner but also prepare for some of the challenges ahead.

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