By: Guillermo Ferrer, Junior Research Associate, PILPG-NL
On November 18, 2021, Prosecutor Karim A.A. Khan notified the ICC Pre-Trial Chamber I that the Philippines requested a deferral of the Prosecution’s investigation into alleged crimes against humanity committed during the “War on Drugs” campaign employed by Filipino authorities.
The Philippines requested to deal with the investigation and prosecution of these cases at a national level. Therefore, the ICC suspended the investigation process in accordance with Article 18(2) of the Rome Statute, and in observance of the principle of complementarity. The Philippines now needs to inform the Office of the Prosecutor (OTP) how it will carry out these investigations. If it fails to do so, the OTP can reopen the ICC's investigations.
This blog will look at the Philippines’ request for deferral and analyze how the OTP might respond to it in the light of the principle of complementarity, the Rome Statute, and the Afghan precedent.
The War on Drugs
In 2016, the Philippines, under the administration of President Duterte, introduced a "War on Drugs" policy to fight the national methamphetamine addiction crisis. This campaign has resulted in almost 8.000 civilian deaths, including among the most vulnerable sectors of the Philippine population, such as children. Children's rights advocates claim that 101 children were extrajudicially executed or killed as bystanders during anti-drug operations from mid-2016 to 2018.
Civil society organizations claim that most crimes have been carried out by Philippine National Police and groups of mercenaries allegedly collaborating with the Filipino government. These cases have been treated as isolated incidents by the Philippine Department of Justice, disregarding the opinions of civil society organizations. In addition, President Duterte argues that these incidents involved only a few police officers who were considered as “bad apples.”
According to Human Rights Watch, this campaign's psychological and physical damage is great. Filipinos are suffering economic hardship because of the death of their relatives that used to support the family economy. Moreover, this situation has worsened poverty and trauma, leading many children to drop out of school or forcing them to work.
The Effectiveness of the Investigation
Prosecutor Khan, considering the possible ineffectiveness of a domestic investigation, requested additional information from the Filipino government. This includes the production of credible evidence of a certain standard to demonstrate that “concrete and progressive investigative steps have been or are currently being undertaken” to establish the responsibility of individuals for alleged crimes against humanity.
Several NGOs, such as Human Rights Watch, have dismissed the claim that the Philippines' domestic mechanisms will provide justice to the victims, arguing that the Philippine National Police is falsifying evidence to cover the unlawful killings. Moreover, Filipino civil society organizations have expressed concern that the Philippine government, with this referral, will try to hide or destroy evidence and use scapegoats to avoid the apprehension of the real perpetrators.
The Afghan Case
The ICC has previously dealt with these matters in the case of Afghanistan's request for deferral of the investigation of alleged war crimes and crimes against humanity committed within the state. The Court decided to grant this request and verified if the Afghan government prosecuted the same alleged perpetrators, on which the OTP's investigations would most likely focus.
The Afghan government tried in vain to focus the prosecution only on the low-profile cases, to avoid assessing the responsibility of high-profile politicians. Several issues within this investigation occurred, such as the reluctance of new authorities to investigate, the obstruction of justice, and the concealment of evidence. Prosecutor Khan explained that "there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan" and highlighted that the gravity, scale, and continuing nature of alleged crimes demand focus and proper resources from his Office. Therefore, in the end, the OTP reopened the investigation. Prosecutor Khan noted that "On 5 March 2020, the ICC's Appeals Chamber authorized my Office to investigate alleged atrocity crimes committed within the context of the Afghanistan situation since 1 July 2002."
As seen in this case, if investigations drag on for too long, the process of obtaining justice and prosecution might be jeopardized. Consequently, the OTP might need to restart investigations in consideration of the principle of complementarity.
Concluding Remarks
The ICC is currently proceeding to evaluate the information on the Philippines’ national investigation on the commission of these alleged crimes against humanity. This difficult task might start with monitoring the evolution of judicial proceedings at the national level, determining if the measures taken are significant in fighting impunity. If some of the issues seen in the Afghanistan case emerge, the ICC might swiftly reinstate the investigation of crimes against humanity in the Philippines to ensure justice and protect victims and witnesses.