Since the launch of Investigate PH in January, the human rights crisis in the Philippines has intensified, with dozens of extra-judicial killings, illegal arrests, and other grave violations occurring in the past six months alone.
The Second Report builds on the first report and specifically focuses on three broad themes in the Philippines context: 1) the war on drugs, 2) the war on dissent, and 3) the war on the Moro people.
The ICC appeals chamber allows victims and their families to submit comments before the court, rejecting the Philippine government’s move to block this effort. In its decision, the chamber says it “considers it appropriate for victims to be involved in these appeals proceedings.”
The chamber instructs the Victims Participation and Reparations Section (VPRS) to “collect and transmit…representations from any interested victims and victim groups” and include these in a report to be submitted by May 22, 2023.
Then-ICC prosecutor Bensouda says she aims to finalize her preliminary examination by 2020 so her office can “reach a decision on whether to seek [authorization] to open an investigation into the situation in the Philippines.”
In a report, Bensouda says her office “significantly advanced its assessment” since 2018, adding that they continue to monitor the situation, including reports of threats and harassment against human rights defenders.
In the decision, ICC judges conclude that “there is a reasonable basis for the Prosecutor to proceed with an investigation, in the sense that the crime against humanity of murder appears to have been committed.”
The chamber also observes that “it is also apparent” that killings took place “pursuant or in furtherance of a state policy.”
Then-ICC prosecutor Bensouda applies for authorization with the pre-trial chamber to open an investigation into the killings committed during the war on drugs and in Davao City from 2011 to 2016.
Bensouda, in a report, says “extrajudicial killings, perpetrated across the Philippines, appear to have been committed pursuant to an official State policy of the Philippine government.”
This move comes a day before Bensouda, who has been publicly threatened by Duterte, retires from the ICC on June 15. She is replaced by Karim Khan, who has extensive experience working in international criminal tribunals.
Families of drug war victims earlier call on Bensouda to “issue a warrant of arrest against President Rodrigo Duterte and hold him while trial is ongoing.”
The High Court, voting unanimously, dismisses the petition because it has become moot and academic.
It, however, says the government is obliged to cooperate with the ICC even if it has already withdrawn, according to the full document released months after on July 21, 2021. Despite this, Malacañang remains firm in its decision not to cooperate.
Families of drug war victims call on the ICC to hold Duterte accountable for allegedly impeding justice, including instances when he repeatedly threatened Bensouda and the court.
In a supplemental pleading submitted to Bensouda, mothers represented by the National Union of Peoples’ Lawyers say Duterte “should be held accountable for his blatant attempt to pervert the course of justice by intimidating and retaliating against the officials of the [ICC].”
Bensouda says there is “reasonable basis to believe that crimes against humanity” were committed in the Philippines in connection with Duterte’s war on drugs. These incidents, she points out in a report, occurred at least between July 1, 2016 to March 16, 2019 – a day before the Philippines’ withdrawal from the ICC took effect.
Her office, however, is yet to reach a decision on whether to seek permission to open a formal investigation, given the challenges brought about by restrictions related to the coronavirus pandemic.
Arturo Lascañas, former Davao City top cop and self-confessed DDS hitman, signs a Third Agreement on Limited Use of Information with the ICC. The document shows that the ICC Office of the Prosecutor (OTP) will not use as evidence against Lascañas his confessions about carrying out killings ordered by Duterte himself.
This is unprecedented and considered a first in Philippine history. International human rights lawyer Ruben Carranza says this move is a form of use immunity, while former ICC prosecutor Luis Moreno Ocampo says the document means that the OTP is treating the witness as an insider, although he could also be a suspect.
While withdrawing does not hinder the ICC from moving forward with possible proceedings, it will most likely make things difficult for investigators, especially in terms of getting cooperation from the Philippine government.
New ICC Prosecutor Karim Khan, who succeeded Bensouda, urges the Duterte government to cooperate with his office in the conduct of an investigation into the killings under the war on drugs, as well as those committed in Davao City between 2011 and 2016.
In a statement, Khan says he remains “willing to constructively engage with national authorities in accordance with the principle of complementarity and our obligations under the Statute.”
The investigation, he adds, seeks “to uncover the truth and aims to ensure accountability,” as well as focus their efforts to ensure a “successful, independent, and impartial investigation.”
The families, convened under the Rise Up for Life and for Rights network, “call for an end to madness and for [Duterte], who has likened himself to one of the most evil men in history, to be brought before the ICC and be held to account for crimes against humanity.”
The human rights abuses under his administration “threaten the core principles of humanity itself, subsuming individual victim experiences, and even state borders,” the families add.
The Philippine government formally submits to the United Nations its written notice of withdrawal from the ICC. In the letter, the government says its decision to withdraw reflects the country’s “principled stand against those who politicize and weaponize human rights.”
The transmission of the letter officially triggers the one-year waiting period before the withdrawal takes effect.
Duterte announces that the Philippines will withdraw as a member-state of the ICC. In a written statement, the President says he is “withdrawing [the country’s] ratification of the Rome Statute effective immediately.”
But the Rome Statute, the ICC’s founding document, explicitly states that withdrawal shall only take effect “one year after the date of receipt of the notification.” Ceasing to be a member-state will also not affect criminal investigations and proceedings that have been started before the withdrawal came into effect.
The ICC Office of the Prosecutor announces that it has initiated a preliminary examination to determine whether there is sufficient evidence to establish that the case falls under the court’s jurisdiction.
In a statement, Bensouda says her office has decided to pursue this move “following a careful, independent, and impartial review of communications and reports documenting alleged crimes.”
Then-presidential spokesperson Harry Roque says Duterte welcomes this move “because he is sick and tired of being accused of the commission of crimes against humanity.”
Then-senator Antonio Trillanes IV and Magdalo representative Gary Alejano file supplemental communication before the ICC urging Bensouda to initiate a preliminary examination “to provide a glimmer of hope for the thousands of victims that Duterte’s impunity would soon end.”
The 45-page document the two submitted highlights Duterte’s violent rhetoric, including various pronouncements in which he ordered the killings of suspected drug personalities.
He requests the court to “commit [Duterte] and his senior government officials to the Trial Chamber for trial and that the Trial Chamber in turn, after trial, convict them and sentence them to corresponding prison sentence or life imprisonment.”
Sabio was the lawyer of self-confessed Davao Death Squad (DDS) member Edgar Matobato, who was the first to publicly come out to accuse Duterte of being behind the killings in Davao City as mayor.
In the documents filed, Sabio says he has “direct proof beyond reasonable doubt” that Duterte continued these killings at the national level.
Duterte threatens to withdraw the Philippines from being a member-state of the ICC.
He calls the international court useless, saying it really is unable to help small countries. This would be the first of many instances when the President would publicly threaten and insult the ICC and its officials.
Through a letter signed by Philippine Ambassador to the Netherlands J. Eduardo Malaya, the government avails of an option available under the Rome Statute which allows it to ask the Prosecutor to defer the probe and recognize working domestic mechanisms.
The ICC’s appeals chamber permits the Philippine government to respond to Karim Khan’s argument filed on April 4th.
The principal counsel of the ICC’s Office of Public Counsel for Victims files a request to appear before the appeals chamber to represent the victims’ comments on the Philippine government’s appeal. The office says “the issues on appeal fundamentally affect the general interest of the victims” and that stopping the probe may jeopardize the victims’ rights to “truth, justice, and reparations.”
Justice Secretary Remulla had anticipated arguing with the European Parliament’s delegates who were in the Philippines about the state of the nation’s human rights, but he left saying his conversation with them regarding the International Criminal Court’s (ICC) impending investigation was “not argumentative.”
The ICC Office of Public Counsel for Victims rejects the bid of the Philippine government to stop the investigation into Duterte’s war on drugs, saying that the Philippines failed to demonstrate that the pre-trial chamber committed any error in making the decision or establish a law error that “materially affected the decision.”
In a document submitted before the appeals chamber, principal counsel Paolina Massidda said that halting the investigation will jeopardize the victims’ rights to “truth, justice, and reparations.”
“Depending on their resolution, victims may be denied the opportunity to uncover the truth, present their views and concerns throughout the proceedings, ensure that those responsible are held accountable, and ultimately claim reparation,” she said.
The Philippine government asks the appeals chamber for a leave to file a brief reply to Khan’s response.
Khan urged the ICC to reject the Philippine’s March 13 appeal brief.
According to the prosecutor, the government “failed to show any error” in the decision of the court to roll out the probe.
The ICC appeals chamber dismisses the Philippine government’s motion to suspend the ongoing investigation during appeals proceedings. In its decision, the chamber highlights the “absence of persuasive reasons in support of ordering suspensive effect” that the Marcos administration sought against a court ruling that allowed the probe to continue.
This means that ICC Prosecutor Karim Khan is free to continue his office’s investigation into the violent war on drugs, a move that the ICC pre-trial chamber authorized in January 2023.
The Philippine government’s OSG submits its appeal brief to the ICC, reiterating that the prosecution’s continuation of the probe into the drug war killings lacks legal foundation and “would encroach on the sovereignty of the Republic of the Philippines.”
The government also requests the suspension of the ongoing investigation until its appeal is decided on by the chamber.
ICC Prosecutor Karim Khan asks the court’s appeals chamber to deny the Philippine government’s request to suspend the probe. He argues that the Philippines “has not provided any argument substantiating its request for suspensive effect, nor shown that implementation of the decision would create an irreversible situation or one that would be very difficult to correct or that could potentially defeat the purpose of the appeal.”
President Marcos Jr. says ICC probe into Duterte’s drug war is a “threat to sovereignty” and the Philippines “do not need any assistance from any outside entity.”
ICC Prosecutor Khan announces that his office will temporarily suspend its investigation into the drug war killings in the Philippines but assures the public they will “continue its analysis of information already in its possession as well as new information it may receive.” This move to pause the probe is a matter of procedure.
The Philippine government, represented by Solicitor General Menardo Guevarra, files its notice of appeal, asking the ICC to suspend its decision to resume its probe into the killings.
The ICC pre-trial chamber reopens the investigation into the drug war killings. The chamber says it’s “not satisfied that the Philippines is undertaking relevant investigations that would warrant a deferral of the Court’s investigations on the basis of the complementarity principle.”
Justice Secretary Jesus Crispin “Boying” Remulla says Khan is doing the court a “disservice” for challenging the Philippine system. The ICC, he insists, “cannot run roughshod over our system and say you’re a lousy country.”
In response, Justice Secretary Menardo Guevarra says he respects Khan’s view but that “he should have waited for our efforts to bear some fruit.”
He added: “An investigation of this magnitude and complexity cannot be finished in a few months.”
Khan files a request before the ICC pre-trial chamber seeking to resume his office’s investigation into the killings under Duterte’s war on drugs and those committed in Davao City between 2011 and 2016. In a 53-page document, Khan says information collated by his office “does not demonstrate that concrete and progressive steps have been taken or are being taken by the competent national authorities.”
He adds that the government failed to show that any individual has been probed “for ordering, planning, or instigating” the killings. He also says there is no indication that “domestic authorities are investigating the alleged systematic nature of these and other killings.”
Khan also says the inter-agency drug war review panel “does not appear to possess powers or authority independent of the [Department of Justice] or have any specific investigative function.” What the DOJ-led panel did appears to be a mere “desk review” that “by itself does not constitute investigative activity.”
In a statement, he says that “such information must consist of tangible evidence, of probative value and a sufficient degree of specificity, demonstrating that concrete and progressive investigative steps have been or are currently being undertaken to ascertain the responsibility of persons for alleged conduct falling within the scope of the authorized ICC investigation.”
Then-ICC prosecutor Fatou Bensouda says her office is keeping an eye on the incidents in the Philippines as the number of deaths in drug war operations continues to rise almost four months into the Duterte administration.
In a statement, she says her office “will be closely following the developments… and record any instance of incitement or resort to violence with a view to assessing whether a preliminary examination into the situation of the Philippines needs to be opened.”
Without naming any official, Bensouda also warns that “any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.”