The Office of the Prosecutor at the ICC will complete its preliminary investigation into the war on drugs in 2020. Will it have a case to charge Duterte for crimes against humanity?
International Criminal Court (ICC) prosecutor Fatou Bensouda indicated on Thursday that the Office of the Prosecutor would soon conclude its preliminary investigation into Filipino President Rodrigo Duterte’s drug war and could seek to open a formal investigation.
In a report, the prosecutor indicated that her office had “significantly advanced its assessment” since opening a preliminary investigation in 2018. All signs are pointing to a tumultuous 2020 for Rodrigo Duterte.
Duterte’s violent war on drugs prompted critics to accuse the president of crimes against humanity
In an attempt to tackle the nation’s drug problem, Rodrigo Duterte sanctioned the extra-judicial killing of drug users and dealers across the Philippines. The president told police officers: “Do your duty, and if in the process you kill one thousand persons because you were doing your duty, I will protect you.”
And protect them he has. Since taking office, between 5,000 and 30,000 suspected drug users and dealers have been killed. International governments, including the US, diverted aid from the Philippine National Police (PNP) in response to killings, citing their inconsistency with international norms.
In May 2017, 11 months after Duterte took office, lawyer Jude Sabio filed a complaint with the ICC accusing the president of engaging in crimes against humanity, prompting the ICC to open a preliminary investigation the following February.
Will the investigation result in a trial?
The ICC is notoriously thorough, and it can take years to bring a case to trial. Of the roughly 12,000 complaints filed with the ICC since its birth, only nine have made it to trial.
That said, there is a strong case to be made for bringing Duterte to trial. The first step of the process, currently underway, is a preliminary trial where the ICC establishes jurisdiction. To meet the criteria, the national legal system must be unwilling or unable to prosecute the crimes itself.
There is strong evidence to indicate that the Philippine legal system is not capable of prosecuting crimes linked to Duterte’s war on drugs. Since it began, only one case has been brought to trial in the Filipino courts. Three arresting officers were convicted of the murder of 17-year-old Kian delos Santos during an anti-drug operation in 2017.
Thousands of killings have gone unsolved. There have also been reports of rapes carried out against females affiliated with the victims by police officers, and threats of violence made against critics of the war on drugs.
In an attempt to derail a potential ICC investigation, Duterte filed a written notification to withdraw the Philippines from the ICC tribunal in March of 2018. However, the withdrawal took a year to take effect, meaning the court retains jurisdiction over any crimes committed up to March 17, 2019.
There is a steady stream of families waiting to tell their stories of the circumstances that led to the death of their loved ones. These narratives, combined with the wealth of evidence from journalists, academics, aid workers, and government officials, should provide ample grounds for taking the process to the pre-trial stage in 2020.
Duterte is unlikely to cooperate
Duterte’s early attempts to undermine the investigation are a likely indicator of what is to come. He once told reporters he would feed ICC investigators to crocodiles if they ever set foot in the country.
Duterte’s obstinance will represent a challenge for the ICC. Without a police force or enforcement body, the ICC relies on states and cooperation to hand over suspects. Even if a pre-trial ICC judge issues a summons or arrest warrant for Rodrigo Duterte or his former chief of police, Ronald dela Rosa, it will likely have to wait until Duterte leaves office, and a willing collaborator becomes president to be enforced.
If Duterte’s popularity remains high, even after leaving office, and his successor is unwilling to risk their popularity on cooperating with the ICC, Duterte could still evade justice.
If an investigation is opened, the Philippine police will have to make a weighty decision
Should the ICC decide to investigate in 2020, the Philippines National Police (PNP) will find itself in a fragile position.
History is littered with examples of senior police officers convicted of crimes against humanity for their participation in human rights abuses carried out by violent regimes.
Ramón Camps and Miguel Etchecolatz were both senior Argentine police officers in the Buenos Aires Provincial Police. They were convicted of crimes against humanity for their participation in the forced disappearances and murders of regime opponents in the 1970s and 1980s.
After the fall of the Third Reich, when the concept of crimes against humanity was first introduced, senior police officials of the Nazi regime, including Ernst Kaltenbrunner and Maximilian Grabner, were also charged and found guilty of crimes against humanity.
The weight of history should press heavily on the senior figures of the PNP. If the ICC decides to bring a case against Duterte and prosecutors seek the PNP’s cooperation with their investigation, PNP officers will have to decide whether to stand with Duterte and risk falling by his side or to cooperate in the hope that they are spared from prosecution.
Senator Antonio Trillanes IV is urging the PNP to make the right decision. “As Duterte steps down from office in just a little over two years, he would not be able to protect you. In fact, even Duterte won’t be able to protect himself,” he warned.
A trial in the ICC could take several years to materialise. That is plenty of time for public opinion to change, political leaders to rise and fall, and feelings of self-preservation to bubble to the surface. Those that Duterte has relied on to carry out his violent policy aims—the Philippine police—could yet become his undoing.