‘THE SITUATION OF MASS MURDER IN THE PHILIPPINES, RODRIGO DUTERTE: THE MASS MURDER’: testing the ICC-OTP

It was only a matter of time.

Just as Duterte was entreating a crowd at a public gathering “Give me salt and vinegar and I’ll eat his [terrorist] liver” because he is “50 times harder” than ISIS, a communication was being lodged against him at the International Criminal Court (ICC) for allegedly murdering thousands of Filipinos in his war on drugs. 8000 victims and counting1The communication claims that based on official statistics from the Philippine National Police, there were more than 7000 drug-related killings by police and unknown armed persons from 1 July 2016 to 21 January 2017. The Situation Of Mass Murder In The Philippines Rodrigo Duterte: The Mass Murderer, by Jude Josue L. Sabio, p. 8. since elected as President of the Philippines in May 2016, Rodrigo Duterte has turned hubris – a crime in ancient Greece from the time of Solon in the 6th century BC – into an art form.

The 77-page communication, submitted by Filipino lawyer Jude Josue L. Sabio, sets out a compelling (though less than lucid) narrative of extrajudicial killings, organized and carried out by Duterte from the time he was mayor of Davao City with the Davao Death Squad, to the thousands that have been gunned down since he was elected President. At the current rate, the communication estimates that by the end of his six-year term of office, Duterte will have killed or be responsible for killing about 72,000 persons.

Packed with data and references, and peppered with emotive and hyperbolic language, the communication attempts to tick off all the boxes for an ICC-OTP preliminary examination against Duterte (and others) that would lead to a formal investigation, and on to the confirmation of charges, prosecution, and conviction.

Mind you, Duterte has provided lots of grist for the mill. Duterte leaves nothing to the imagination through his public admissions of partaking in killings (to show how it is done and to instill confidence in the faint-hearted),2 For a selection of Duterte’s “best” lines see Philippines President Rodrigo Duterte in quotes, BBC, 30 September 2016. and of instructing, encouraging and inciting extrajudicial killings. That seems to be his intent: let no one doubt his resolve – in part based on his past murderous activities – that he is prepared to go to whatever lengths to terminate with extreme prejudice anyone associated with dealing or using drugs in the Philippines.

It is as if he is daring Madame Bensouda, the ICC Prosecutor, to put up or shut up on her Policy Paper on Case Selection and Prioritisation.

On 15 September 2016, the ICC-OTP issued a Policy Paper articulating in broad strokes its priorities in selecting cases for preliminary examinations. Paragraph 40 is noteworthy:

The manner of commission of the crimes may be assessed in light of, inter alia, the means employed to execute the crime, the extent to which the crimes were systematic or resulted from a plan or organised policy or otherwise resulted from the abuse of power or official capacity, the existence of elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination held by the direct perpetrators of the crimes, the use of rape and other sexual or gender-based violence or crimes committed by means of, or resulting in, the destruction of the environment or of protected objects.3 ICC-OTP, Policy Paper on Case Selection and Prioritisation, 15 September 2016, para. 40, citing Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute.

As the Policy Paper was being unveiled last year, the press was in high gear reporting on Duterte’s best practices in fighting his war on drugs: sanctioned extrajudicial killings. Posting on the Policy Paper, I then mused that that it would only be a matter of time before Madame Bensouda would be confronted with a request or the need to act on her own initiative to look into the widespread or systematic policy of extrajudicial killings reported to be happening in the Philippines. And here we are.

As the saying goes, the proof is not in the pudding, but in the tasting. Madame Bensouda will be hard pressed to make short shrift of the communication by summarily dismissing it or putting it on the back-burner. Taken at face value, the communication is stark and persuasive, meriting serious consideration: conducting a preliminary investigation that by all credible accounts should, at a minimum, lead to a formal investigation. On the road to confirmation of any charges against Duterte and others, here is what we can expect:

  1. Analyzing and verifying the seriousness of information received, filtering information on crimes that are outside the jurisdiction of the Court and identifying those that appear to fall within the jurisdiction of the Court.
  2. Determining whether the alleged crimes fall within the subject-matter jurisdiction of the Court.
  3. Assessing the admissibility of the potential situation in terms of complementarity and gravity.
  4. Examining the interests of justice, resulting in a preliminary Article 53(1) Report, indicating: a. an initial legal characterization of the alleged crimes, b. a statement of facts in relation to the places of the alleged commission of the crimes, c. the time or time period, and d. the persons involved (if identified). This report is non-binding and subject to changes depending on future investigations.4 ICC-OTP, Report on Preliminary Examination Activities, 14 November 2016, para. 15.

Duterte’s actions and words have drawn too much heat around the globe to be ignored – as was his intent. Mission accomplished. Thumbing his nose to his critics at home and abroad, Duterte embraces impunity, emboldened by threats to pull the Philippines out of the ICC. Quelle surprise? Elected leaders in illiberal democracies have an affinity for the autocratic, keeping a safe distance from the rule of law to which they are fatally allergic.

Madame Bensouda, through her Policy Paper, non-committal as it may be, has drawn a red line – or has she? Why else telegraph which cases the ICC-OTP would pay attention to in the future – as opposed to just keep on selecting, investigating and prosecuting the most obvious ones?

If the ICC wants to bolster its legitimacy and continue the path of recovering its relevancy (the ICC exodus may only be in remission), the ICC-OTP must move with all deliberate speed on this communication. No prejudgments should be made. Duterte’s admissions of having murdered and having ordered, and of continuing to order the police and vigilante groups to carry out extrajudicial killings are a starting point to investigate, not to be confused with evidence from which charges necessarily flow. All allegations should be investigated properly and fairly. Legitimacy comes with process, and process demands detachment.

The communication against Duterte presents Madame Bensouda with a defining moment.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.