HOWIE SEE IT: 2021 and the ICC investigations

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By Atty. Howie Calleja

As the tumultuous year that is 2020 comes to an end, we can only hope that the new year will bring stability to the country. Gone are the usual new year wishes for prosperity, as most of us have lost something, or someone, dear to us. Whatever the new year brings, I pray that this year the average Juan’s needs in this period of recovery are given the utmost priority. For those in the leadership, this can be accomplished by putting the welfare of the individual Filipino ahead of their own ego.

The first opportunity they have in this new year is to acknowledge the concerns surrounding the ongoing war on drugs, and the effect it has had on the lives of tens of thousands of Filipinos. Last month, a preliminary examination from the Office of the Prosecutor of the International Criminal Court (ICC) revealed that there was reasonable basis to believe that crimes against humanity had been committed in connection with President Duterte’s “War on Drugs” (WOD). The report covered only the first three years of the Duterte presidency, beginning in July of 2016, up until March of 2019 – the same month Duterte’s withdrawal from the Rome Statute became effective, the treaty that created the tribunal that is the ICC. This may open the doors for the ICC prosecutor to begin a probe and full-on investigation on the reported violations of international law in the early part of this new year.

Though Malacañang has been rejecting the details of the report, and publicly repudiating the ICC’s jurisdiction, they have yet to deny the deaths of thousands of Filipinos. Though PDEA reports upwards of 6,000 deaths in connection with the WOD policy, multiple international human rights groups estimate that as many as 27,000 Filipinos have been victims of extra-judicial killings – a growing figure which initially prompted the Prosecutor’s office to commence the preliminary examination into the deaths of the alleged drug users, including those killed for allegedly resisting arrest. In fact, rather than denying the deaths, it has been seen as an accomplishment.

Did we forget that due process is a cornerstone of a civil, and just, society? Or will we continue to allow the powerful to live above the rule of law? Doesn’t rejecting this report’s findings purely on jurisdiction, rather than its merits, only prove that there is an absolute refusal to be criticized? When the pride of the leadership is deemed to be of greater importance than the lives of the tens of thousands murdered in the WOD, do we truly stand for the average Filipino?

The ICC report recognized that the WOD has sanctioned state-sponsored killings, which subsequently allowed human rights organizations to strengthen their call for human rights-based policing and an end to the “shoot first” motto reverberating in the Palace. Yet, the leadership has claimed that the government cannot be compelled to cooperate with the tribunal due to the written notification of withdrawal from the Rome Statute sent to the UN in 2018. On the sole basis of jurisdiction do they reject this report’s findings and any future attempts to compel the government to cooperate, but they conveniently seemed to forget about the conditions to the country’s withdrawal.

Article 127 of the Rome Statute provides that, despite a withdrawal, a State is not discharged of its obligations while it was Party to the Statute. Neither shall the withdrawal affect its cooperation with the tribunal in any investigation into the failure to uphold obligations while it was a State Party, up until one year after the notice of withdrawal was given. To put it plainly: the Philippines obligations to the ICC did not end on March 2018 when the notification of withdrawal was given. The obligations didn’t even end in March 2019, when the withdrawal became effective. The end of the State’s duty to uphold international law did not apply retroactively; rather, the State may still answer to any crimes committed during the time it was Party to the Statute.

Contrary to President Duterte’s claim, it is not divine law that gave the ICC the authority to investigate into the killings. Rather, it was legitimately ratified by the previous President and his legislative branch, all given authority by the people through the democratic process. Though President Duterte has every right to withdraw from the Statute, it cannot be said that the ICC never had authority when it is clearly written in the treaty that created the tribunal.

Having painted the ICC’s preliminary examination as an affront to Philippine sovereignty, the new narrative seems to be that our domestic courts can hold the President accountable if there is, indeed, crimes he must answer to. Malacañang has announced that our courts continue to function and, thus, anyone may bring a charge against the President. Having started off his term belittling the integrity of the judiciary by waging a war against a sitting Chief Justice this is rich, but I digress. This narrative fails to recognize the limitations of our domestic courts; for one, a sitting President cannot be prosecuted.

This is one of the many reasons why we rely on impartial, third-party observers like those sitting on the ICC; their power is not divine, and they are not omniscient, but they have the ability to gather evidence and give legal recommendations where our domestic courts cannot, or maybe where an officer of the court may be afraid to. This leads me to my second point: the culture of fear in criticizing the administration. Why would Malacañang suggest that the domestic courts are an option to bring a case against the President when the bodycount for extrajudicial killings run in the tens of thousands? Mixed with the fact that 2020 was the worst year on record for murders in the legal community, there has been no desire to empower lawyers to bring cases forward – everyday is a risk we must take, to pursue justice.

Denying the ICC’s jurisdiction is one thing, but denying the facts in order to best fit the narrative that the Philippines is “safer” due to the killings of alleged criminals is downright delusional. The die have been cast, and the family of the dead will finally receive answers. Though the form that justice will take is yet to be seen, there is no running away from the truth. The past four years of impunity is no longer Manila’s worst-kept secret; the ICC has put the spotlight on this administration and its failure to uphold basic human rights.

While this is certainly a report that would mar the administration’s legacy (Though many would say its beyond the point of repair), it is in the best interest of the country that pride is put aside and the leadership allows the tribunal to investigate the reports. If there is nothing to hide, there is nothing to fear. After all, haven’t we been fed the same line? 2021 should be the year of the Filipino, ahead of any one man’s ego.