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MANILA/THE HAGUE – Battered by the Senate investigation on the alleged corruption involving the purchase of over P11 billion worth of medical supplies from a Chinese firm with start up capital of only P625,000 and allegations of corruption in other agencies, President Rodrigo Duterte will now have to face another front — the International Criminal Court (ICC).

This as the ICC based in The Hague has given the green light for a full investigation into reported crimes against humanity during the Duterte administration’s so-called “war on drugs” in which more than 6,500 and up to 15,000 from 2016 to 2019 were reportedly killed. The probe will also cover the alleged killings in Davao City when Duterte was mayor from 2011 to 2016.

In a statement, the ICC said that its Pre-Trial Chamber 1 has granted then Prosecutor Fatou Bensouda’s June 14 request to probe crimes “allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called ‘war on drugs’ campaign.”

The pre-trial chamber which made the decision was composed of Judge Péter Kovács, Presiding Judge, Judge Reine Adélaïde Sophie Alapini-Gansou and Judge María del Socorro Flores Liera.

Relatives of many victims of the killings hailed the decision of the ICC.

Former senator Antonio “Sonny” Trillianes IV, one of those who supported the filing of the complaint, said the ICC investigation is “another step closer” to attaining justice for drug war victims and their families.

At press time, there was no immediate reaction from  Malacanang on the latest development at ICC.

But in earlier statements months ago, Presidential spokesperson Harry Roque said the Duterte administration will never cooperate because the country is no longer a member of the ICC.
Roque also said Duterte is confident that he will not be held liable for crimes against humanity over the drug war killings because the allegations against him are based on hearsay.

Duterte, who had said months before that he would die first before the ICC would acquire jurisdiction over him and was quoted threatening to arrest ICC prosecutors and investigators when they go to the Philippines, had denied the allegations before the ICC and ordered in 2019 the withdrawal of the Philippines from the court, but the ICC judges ruled that Duterte are still covered by the investigation because the drug war killings from 2011 to 2019 happened when the country was still a signatory to the Rome Statute.

On September 16, Mr. Duterte remained unfazed by the latest ICC move and reiterated he would not cooperate with the ICC when it opens the formal investigation, according to Roque.

“Wala pong reaksiyon ang Presidente dahil sa mula’t mula niyan, sinasabi niya na siya ay mamamatay muna bago siya haharap sa mga dayuhang nasa huwes (The President has no reaction because from the very start he has been saying he will die first before he faces foreign judges),” Roque said in a press briefing from New  York where he is campaigning for his election by United Nations members as a member of the International Law Commission.

Duterte, Roque said, would just let the ICC proceed with its plan to investigate his anti-narcotics campaign, but added the ICC would just waste its time and resources in probing the anti-narcotics drive in the Philippines.

Chief Presidential Legal Counsel Salvador Panelo, meanwhile, slammed what he said as “blatant and brazen” attempt of the ICC to meddle in the Philippines’ domestic affairs, particularly its handling of the rampant illegal drug trade in the country.

“So, sa kanya, bahala sila kung ano ang gusto nilang gawin (So, for him, let them do what they want),” he said. “Wala namang possibility na magkakaroon ng successful prosecution dahil iyan po ay pagsayang lamang ng oras at ng resources ng ICC mismo (There is no possibility that there will be successful prosecution because the ICC will just waste its time and resources).”

In a press statement, Panelo maintained that the ICC has no and never had jurisdiction over the Philippines and its citizens.

“Our position concerning the proceedings before the International Criminal Court (ICC) remains. The foreign institution has no — as it never had — jurisdiction over the affairs of the Republic of the Philippines and its people,” he said.

Hence, the ICC’s latest move “neither bothers nor troubles the President and his administration,” Panelo said.

Panelo said it was apparent that the ICC was bent on proceeding with a case against Philippine government officials, a move that is “in violation of our Constitution and in contravention with the Rome Statute that created it.”

He also questioned the timing of the ICC’s decision against the Duterte government, saying the international tribunal is being used as a “political and propaganda apparatus” by Duterte’s detractors “who will do anything to dethrone the President from his seat.”

“While we expect that more theatrics will be employed by the detractors of the President as election season draws near, this blatant and brazen interference and assault on our sovereignty as an independent country by the ICC is condemnable,” Panelo said.

He also lamented that the ICC decided to authorize a formal investigation into Duterte’s drug war more than two years after the Philippines revoked the Rome Statute that created the international court.

Citing Article 127 of the Rome Statute, Panelo said “there is no longer any matter for the ICC to pursue.”

“For this reason, there was nothing being criminally investigated by — or that was already under the consideration of — the ‘Court’ (which is not the same as an auxiliary office or chamber of the ICC) when said withdrawal took effect,” he said.

Roque said Duterte would never allow ICC to have jurisdiction over him because the Philippines has a “working” justice system.

Duterte would only participate in the ICC investigation, if local courts are no longer functioning, Roque added.

“Kung mayroong reklamo, dapat dito isampa sa Pilipinas, dahil ang ating mga hukuman ay gumagana. At ang korte ng ICC ay walang hurisdiksiyon, puwede lang siyang mag-akto sa mga kaso kung ang mga hukuman natin ay hindi gumagana (If there is a complaint, file it before the Philippine courts because they are working. The ICC has no jurisdiction over us. It can only act, if our courts are not working),” Roque said.

Roque said Duterte would respect anyone who will challenge his drug war before the local and competent courts.

“Ang paninindigan ni Presidente, lahat nang gustong magreklamo, bukas po ang ating mga hukuman sa Pilipinas (The President’s stance is our Philippine courts are open to anyone who wants to file a complaint),” he said.

 Former ICC chief prosecutor Fatou Bensouda had asked the ICC judges in June to authorize the full-blown investigation into allegations that police unlawfully killed as many as tens of thousands of “innocent” civilians.

Reports from the Hague showed the ICC judges “found there is a reasonable basis to proceed with an investigation, noting the specific element of the crime against humanity of murder.”
In a statement, the ICC said that a “specific legal element of crime against humanity of murder” has been met with respect to Duterte’s war on drugs in the period from July 1, 2016—the day after President Rodrigo Duterte was sworn into office as chief executive—until March 16, 2019, the day before the Philippines formally exited the Rome Statute, the treaty that established the ICC.

It has also been met “with respect to the killings in the Davao area between 1 November 2011 and 30 June 2016.”

“The Chamber emphasized that, based on the facts as they emerge at the present stage and subject to proper investigation and further analysis, the so-called ‘war on drugs’ campaign cannot be seen as a legitimate law enforcement operation, and the killings neither as legitimate nor as mere excesses in an otherwise legitimate operation. Rather, the available material indicates, to the required standard, that a widespread and systematic attack against the civilian population took place pursuant to or in furtherance of a State policy, within the meaning of Article 7(1) and (2)(a) of the Statute,” the ICC added.

The court said it appeared that “the so-called ‘war on drugs’ campaign cannot be seen as a legitimate law enforcement operation, and the killings neither as legitimate nor as mere excesses in an otherwise legitimate operation.”

“The available material indicates, to the required standard, that a widespread and systematic attack against the civilian population took place pursuant to or in furtherance of a state policy,” it added.

“The court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a state party,” the judges said.
Jude Sabio, lawyer for self-confessed “Davao Death Squad” hitman Edgar Matobato, filed the first complaint in 2017 before the ICC against Duterte, citing the “terrifying” and “gruesome” deaths in the Philippines as a result of his administration’s drug war.

While the Philippines’ withdrawal from the Statute took effect on March 17, 2019, the ICC said the court retains jurisdiction with respect to alleged crimes that occurred on the territory of the country while it was a state party, from November 1, 2011 up to and including March 16, 2019.

“While the relevant crimes appear to have continued after this date, the Chamber noted that alleged crimes identified in the Article 15(3) Request are limited to those during the period when the Philippines was a State Party to the Statute and was bound by its provisions,” the ICC said.