Duterte should reconsider ICC strategy

“He must change course if he is to have a chance of averting arrest.”

In this column, part of a series on ICC Prosecutor Ms. Fatou Bensouda’s Request for authorization filed before the International Criminal Court (ICC) to investigate the situation in the Philippines between 1 November 2011 and 16 March 2019 in connection with President Duterte’s war on drugs (WoD) campaign, I highlight the dynamics of the murders allegedly committed as Bensouda analyzed.


She pointed out the different aspects of these killings in the following given scenarios, namely: 1. killings during official law enforcement operations such as a. killings during purported buy-bust operations; b. killings during purported Tokhang operations; c. killings in the context of “One Time, Big Time” operations; d. killings in other official operations; e. killings of persons acknowledged to be in police custody or detention. In all these killings, the authorities invariably advance justifications which, to say the least, are not credible.


On the killings during purported buy-bust operations, the Request stressed that based on information coming from Philippine authorities, more than half of the reported WoD killings by members of the PNP or other State agencies occurred in the context of “buy bust” operations. However, the accounts of eyewitnesses and other sources, such as video footage, show that in many cases the narrative of a buy-bust operation is not credible, and police killed the victims in cold blood.


The PNP has consistently advanced the same general fact pattern for such killings, claiming that during a buy-bust operation there was an attempt by plainclothes officers to catch a suspect dealing drugs and that, in the course of the transaction, the victim “sensed” the presence of police, drew a weapon and started shooting, thereby triggering a “shootout” during which police returned fire and killed the suspect. Witness accounts, however, contradict aspects of police reporting. In other instances, although the police report indicates that the killing occurred in the context of a buy-bust or similar operation, making no mention of any arrest, the victims were last seen alive being taken into police custody.


As to the killings during purported Tokhang operations, the Request clarified that Tokhang operations refer, officially, to operations in which the PNP, in some cases accompanied by local officials, visit drug suspects at their homes and urge them to abandon their involvement in drugs and to surrender to the police. The Prosecutor however pointed out that Information shows that deliberate, apparently planned, killings took place during or after some such operations.


On the assertion concerning the killings in the context of “One Time, Big Time” operations, the Request pointed out that the police also killed victims during so-called “One Time, Big Time” (“OTBT”) operations, large-scale, high-intensity police operations in which activities like sweeps, buy busts, and checkpoints are carried out simultaneously in multiple locations.
There is also a pattern in which police typically raided a house or other location, often when the victim was asleep or at home with his family, isolated the victim (such as by sending any witnesses to another room), and then shot the victim. Victims of such raids were frequently on drug watch lists or were suspected drug personalities.


On the matter of the alleged killings of persons acknowledged to be in police custody or detention, the Request insists that the authorities consistently claim the victims engaged in violence—such as waving a weapon or attempting to take an officer’s weapon—causing officers to shoot and kill them. However, other information undermines the official accounts.
Justifications for these killings being advanced by Philippine authorities include the assertion that these deaths resulted from officers acting in self-defence during armed confrontations with drug suspects who “fought back” (a scenario known locally as “nanlaban”).


President Duterte’s strategy is to not cooperate with the ICC. The rationale for this is by withholding its assistance, the ICC will have no choice but to drop the case. That is not likely based on historical experience. Instead, non-cooperation is likely to accelerate the speed in which the ICC will take on the case, including the issuance of arrest warrants. The current evidence is damning and that is likely to increase as victims and whistleblowers use the various mechanisms the ICC has already set up to gather the evidence. This needs to be countered by the Duterte government.


The Philippines is actually in a good position to present its case to the Pretrial Division of the ICC—so the request for investigation is denied. Unlike many others, I appreciate the efforts of Justice Secretary Menardo Guevarra to investigate the killings in the WoD. The top-level expertise on the ICC of Secretary Harry Roque cannot be questioned; very few Filipinos can top that, indeed very few in the world has such skills. Finally, we have good, world-class diplomat-lawyers in the Department of Foreign Affairs, assigned at The Hague and here at home, who can help defend the President and potential defendants of an ICC case.


In sum, stonewalling the ICC is a losing strategy. Duterte must change course if he is to have a chance of averting arrest and being brought to trial for crimes against humanity.


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