SCRUTINIZING DUTERTE’S EXTRA-JUDICIAL KILLINGS: What has taken ICC Prosecutor Fatou Bensouda so long to act?

He is sick and tired of being accused. … He wants to be in court to put the prosecutor on the stand.

Harry Roque, Philippines Presidential Spokesperson

Finally. On 8 February 2018, ICC Prosecutor Fatou Bensouda announced that the Office of the Prosecutor (OTP) would open a preliminary examination on the widely publicized allegations of extra-judicial killings ordered by President of the Philippines Rodrigo Duterte, committed as part of his war on drugs.

Before I get to the finally, some context.

Duterte was elected President on 9 May 2016. Having campaigned on a tough on crime (particularly anti-drug) platform, killings of alleged drug dealers and users by local police and armed forces at the behest of Duterte were being reported almost from day one of him assuming the presidency. Some of the killings were suspected to have occurred during lawful arrests, while others (the majority) were extra-judicial – government-sanctioned summary killings. When these killings grew in numbers, and when public concerns were raised (mainly by human rights advocates and the international community), Duterte doubled-down on these sorts of killings, which, from the outset, appeared to have been conducted on a widespread and systematic scale.

I first mentioned Duterte’s potential rendezvous with the OTP, sitting in the dock as a charged person in an October 2016 post about the OTP’s Policy Paper on Case Selection and Prioritisation, published a month earlier. Remarking that it was reasonably foreseeable that the OTP will be more creative in its selection of cases to investigate and prosecute, I hinted that it was only a matter of time before the OTP would turn its attention to the extra-judicial killings in the Philippines. I also noted that it would be hard for Bensouda to ignore such conduct, especially with a sitting ICC Judge from the Philippines.

On a number of occasions since then, I have suggested that Bensouda rationalize her resources by opening preliminary examinations on imminent situations of the low-hanging fruit variety – in particular, Duterte and his coterie (here, here, here, and here). These overtures were made before Filipino lawyer Jude Josue L. Sabio filed his first communication on 24 April 2017 with the OTP requesting the launching of a preliminary examination against Duterte and 11 other Philippine officials for extra-judicial killings of thousands of people over three decades.

A second (supplemental) communication was filed by Senator Antonio F. Trillanes IV and Magdalo Representative Gary C. Alejano on 6 June 2017, highlighting Duterte’s own incriminating public pronouncements and providing additional information on the allegedly widespread extra-judicial killings in the country. And herein lies the finally rub.

Since elected President and since announcing his war on drugs, Duterte has repeatedly taken credit for the methods employed by his subordinates in carrying out the killings he has sanctioned as part of his war on drugs. And in the course of taking credit, he enthusiastically bragged of having demonstrated to local police authorities when he was Mayor of Davao City how to execute suspected drug dealers – as opposed to having them arrested and affording them their guaranteed due process enshrined in The Bill of Rights in the 1897 Philippine Constitution“No person shall be deprived of life, liberty, or property without due process of law… And no person shall be denied the equal protection of the laws.”

When his methods have been called into question as being contrary to human rights principles and subject to accountability at the ICC (and in the Philippines, though it would appear that the national courts are paper tigers when it comes to enforcing the rule of law concerning these extra-judicial killings), Duterte has lashed out with ad hominems, expletives, and threats. And like other sitting heads of states who have come under scrutiny for alleged crimes falling under the ICC’s jurisdiction (here, here, here), Duterte pronounced that should the ICC proceed against him (for no doubt what he sees as his right to conduct his war on drugs in a manner that meets his fancy), he would withdraw the Philippines from the ICC (much like we have seen Burundi recently do).

More to the point. Back in October 2016, when credible sources were reporting that 3,600 civilians had been killed within a span of less than four months of Duterte’s election, and that at the then rate of killing-spree, the death-count from extra-judicial killings could likely reach 15,000 within a year (as I noted), you would have thought that Bensouda would have taken some action on her own initiative.1   See Rome Statute, Art. 15(1): “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” And when extra-judicial killings kept being reported with Duterte publicly flaunting his disdain for abiding by international human rights norms, admitting to the killings, and justifying why he must not lay off the gas pedal of his killing of suspected drug dealers (even if there have been reports that many of those who have been killed were mere users, or suspected of being users, and not pushers), one has to wonder why Bensouda was not reacting.

In her statement, Bensouda remarked that “[f]ollowing a careful, independent and impartial review of a number of communications and reports documenting alleged crimes potentially falling within the jurisdiction of the International Criminal Court,” she decided to open a preliminary examination into each situation in the Philippines which

will analyse crimes allegedly committed in this State Party since at least 1 July 2016, in the context of the “war on drugs” campaign launched by the Government of the Philippines. Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.

Seriously! Did Bensouda have to wait nearly ten months after being presented with the first communication alleging ongoing crimes against humanity with abandon (which she should have known just by following the news) before taking this initial step of “examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.”

Under Article 53(1) of the Rome Statute Bensouda is obligated to take this initial step in examining issues such as jurisdiction, admissibility, and the interests of justice in making this determination. Bensouda cannot be faulted for taking this initial step, which arguably should lead to the next step of seeking the Pre-Trial Chamber’s permission to conduct a full-blown investigation.2   See Rome Statute, Art. 15(3)-(4): “3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected…. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.”  Where I find fault with Bensouda’s much appreciated initiative to launch a preliminary examination is her failure to act sooner.

But I also find troubling her judgment in prioritizing and rationalizing her resources.

Considering what was being reported on Duterte’s war on drugs and knowing that civilians in the Philippines were and are being executed by the hundreds and thousands based on Duterte’s orders and policies, it is puzzling that Bensouda would find it more fitting to prioritize the situation in Afghanistan, where the possibilities of yielding any tangible fruits are virtually nil (and the alleged crimes are not ongoing), as opposed to conducting a preliminary examination on the situation with alacrity on her own initiative, or at very least with posthaste after the first communication was submitted.

I am not privy to comings and goings of the OTP. No doubt Bensouda has her hands full, and as I recently noted her office does not always get the assistance it rightfully deserves. Maybe her office lacks the resources or is consumed by nonsensical bureaucratic procedures, or maybe it is just a case of indecisiveness resulting from analysis-paralysis. Whatever the excuse, considering what she knew and when she knew it, it begs asking Bensouda: What took you so long to finally act?  



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.

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