Updated July 1, 2021 at 5:06 PM ET
After years of a deadly counternarcotics campaign that has riven the Philippines, the International Criminal Court is a step closer to opening what international law experts say would be its first case bringing crimes against humanity charges in the context of a drug war.
On June 14, the last day of her nine-year term as the ICC's chief prosecutor, Fatou Bensouda announced there was "a reasonable basis to believe that the crime against humanity of murder" had been committed in the war on drugs carried out under the government of President Rodrigo Duterte. Bensouda urged the court to open a full-scale investigation into the bloody crackdown between July 1, 2016, when Duterte took office, and March 16, 2019, when the Philippines' withdrawal from the ICC took effect.
Said at first to be unfazed by the prosecutor's findings of alleged murder under his watch, Duterte went on to rail against the international court in his June 21 "Talk to the People," vowing, in an invective-filled rant, never to submit to its jurisdiction. "This is bulls***. Why would I defend or face an accusation before white people? You must be crazy," Duterte scoffed. (The 18 judges on the ICC are an ethnically diverse group from around the world. And Bensouda, from Gambia, is the first female African to serve as the court's chief prosecutor.)
The drug war has been a signature policy of President Duterte's administration, and its brutality has drawn international condemnation. But for years the world has stood by as allegations of human rights violations accumulated, and Duterte barred international investigators. The findings of the chief prosecutor represent the most prominent record to date of the killings committed under the Philippines' anti-narcotics campaign and set the stage for a potential legal reckoning for its perpetrators.
"It wasn't a rushed decision," Manila-based human rights attorney Neri Colmenares says of Bensouda's three years of examination, which "makes the case stronger." He says, "It is not yet justice, but it is a major step toward that."
The prosecutor's findings
Bensouda's final report says the nationwide anti-drug campaign deployed "unnecessary and disproportionate" force. The information the prosecutor gathered suggests "members of Philippine security forces and other, often associated, perpetrators deliberately killed thousands of civilians suspected to be involved in drug activities." The report cites Duterte's statements encouraging law enforcement to kill drug suspects, promising police immunity, and inflating numbers, claiming there were variously "3 million" and "4 million" addicts in the Philippines. The government itself puts the figures of drug users at 1.8 million.
The Philippines' Drug Enforcement Agency reports more than 6,100 drug crime suspects have been killed in police operations since Duterte became president. But Bensouda says, "Police and other government officials planned, ordered, and sometimes directly perpetrated" killings outside official police operations. Independent researchers estimate the drug war's death toll, including those extrajudicial killings, could be as high as 12,000 to 30,000.
The international court's now former prosecutor based her findings on evidence gathered in part from families of slain suspects, their testimonials redacted from her report to protect their identities. She cited rights groups such as Amnesty International that detailed how police planted evidence at crime scenes, fabricated official reports, and pilfered belongings from victims' homes.
Colmenares, who is a former congressman, says the police appeared to have a modus operandi. "Sometimes the police would go into the house and segregate the family from the father or the son, and then later on the father and the son would be killed. The witnesses say that the husband was already kneeling or raising their hand," he says.
Colmenares says in the prevailing atmosphere of impunity in the Philippines, families are "courageous" for bearing witness.
Police self-defense debunked
Police have justified the killings by saying that the suspects put up a struggle, requiring the use of deadly force, a scenario they call nanlaban. Duterte himself said last week, "We kill them because they fight back." Duterte fears that if drastic measures were not taken, the Philippines could wind up in the sort of destabilizing narco-conflict that afflicts Mexico. "What will then happen to my country?"
Bensouda rejects police claims that they acted in self-defense, citing witness testimony, and findings of rights groups such as Amnesty International.
In February, the Philippines' own Justice Secretary Menardo Guevarra conceded to the United Nations Human Rights Council that the police's nanlaban argument is often deeply flawed. His ministry had reviewed many incident reports where police said suspects were killed in shootouts. "Yet, no full examination of the weapon recovered was conducted. No verification of its ownership was undertaken. No request for ballistic examination or paraffin test was pursued," he said.
Despite that, only a single case has resulted in the prosecution and conviction of three police officers for the murder of 17-year-old Kian delos Santos in August 2017, after the incident sparked national outrage. Police accused delos Santos, a student, of being a drug-runner, a charge his family denied. When the teenager was found dead in an alley, police said they had killed him in self-defense. CCTV footage contradicted the police version of events.
"Duterte Harry"
Bensouda buttresses her case by citing Duterte's 22 years as mayor of Davao City on the island of Mindanao, where her report says he "publicly supported and encouraged the killing of petty criminals and drug dealers," ostensibly to enforce discipline on a city besieged by crime, a communist rebellion, and an active counterinsurgency campaign.
Former police officials testified to the existence of a death squad that acted on the orders of then-Mayor Duterte and which rights groups allege carried out more than 1,400 killings.
Bensouda's report says Duterte's central focus on fighting crime and drug use earned him monikers such as "The Punisher" and "Duterte Harry," and in 2016 he rode that strongman image to the presidency in a country that had been battling drug syndicates for decades and was weary of crime.
In a 2016 address to the national police, he warned drug criminals who would harm the nation's sons and daughters: "I will kill you, I will kill you. I will take the law into my own hands. ... Forget about the laws of men, forget about the laws of international order."
American University international law professor Diane Orentlicher says the ICC prosecutor reached back to the ultra-aggressive approach Duterte first deployed in Davao City to show that "there were the same kind of summary executions earlier in the Philippines." Orentlicher says it identifies "continuity of certain patterns" and the threat they pose "over almost a quarter of a century."
Obstacles ahead
While the finding of possible crimes against humanity is a significant step in the ICC's scrutiny, formidable hurdles remain before any prosecutor could formally name perpetrators or issue indictments.
Firstly, President Duterte denies any wrongdoing, unambiguously vows not to cooperate in an international court investigation, and could stonewall the effort in his last year in office. And despite the bloodshed, and mismanagement of the coronavirus pandemic, Duterte's "crude everyman" image still appeals to a majority of Filipinos.
Orentlicher says building a crimes against humanity case is complex, involving potentially thousands of victims "over time [and] over territory." While human rights activists would like to see Duterte in the dock, linking the alleged crimes to individual perpetrators is a massive evidentiary undertaking.
Powerful leaders facing scrutiny, she says, have been able to "interfere with witnesses, obstruct justice [and] intimidate people who would be key sources for the prosecutor." While the most senior officials are the ones the public expects the world court to take on, Orentlicher says they "are in the best position to keep a prosecutor from getting the evidence."
David Bosco, author of a book about the International Criminal Court titled Rough Justice, says it's also entirely possible the judges may not authorize an investigation. Bosco says it would not be because the Philippine case lacks merit, rather he says the plethora of allegations involving possible war crimes from Afghanistan to Nigeria to the Gaza Strip has the court overstretched.
"And even if the judges were to authorize an investigation, then you're talking about trying to launch an investigation when you have a hostile government," Bosco says. "So I think this is a very long road before we get to any perpetrator seeing the inside of a courtroom."
But Bosco adds prosecutors who have opened an ICC investigation have also been content to have the case lie dormant for long periods.
"And then they revive," he says. "And so, we shouldn't ignore the possibility that there could be political changes in the Philippines that suddenly make a new government much more amenable to cooperating. So things could change."
Bosco says a potential investigation of the Philippines is also important because it raises the critical question: whether a state that has joined the ICC and then subsequently has come under scrutiny can "immunize itself by leaving the court." As the chief prosecutor persisted in examining the country's drug war, the Philippines withdrew as a member of the ICC.
Bosco believes the fact Bensouda sought authorization for her successor to open an investigation into the Philippines is "an important signal that the court is still going to pursue countries that have left the ICC once they've come under scrutiny."
Orentlicher says the court may look to the case of Burundi, the first country to leave the ICC. Prosecutors have continued to investigate alleged crimes against humanity committed in the country before it withdrew in 2017.
Decades of drug wars
The focus on the Philippines comes at a time when countries around the world are questioning heavy-handed counternarcotics tactics. That includes the United States, whose war on drugs dates back to at least 1971 when President Richard Nixon called for an "all-out offensive" against drug abuse and addiction.
"Over the last 50 years, we've unfortunately seen the 'War on Drugs' be used as an excuse to declare war on people of color, on poor Americans and so many other marginalized groups," New York Attorney General Letitia James said.
Likewise, the former ICC chief prosecutor Bensouda notes that the Philippines' drug fight has been called a "war on the poor" as the most affected group "has been poor, low-skilled residents of impoverished urban areas."
Drug addiction, especially crystal meth, known locally as shabu, grips the Philippines. Just this month, the national police said that security forces have been "seizing large volumes of shabu left and right," an acknowledgment that drugs remain rampant five years into the brutal drug war.
Calls are mounting for greater attention to drug prevention and public health for drug users. "Heavy suppression efforts marked by extra-judicial killings and street arrests were not going to slow down demand," Jeremy Douglas, Southeast Asia representative for the United Nations Office on Drugs and Crime, told Reuters.
Edcel C. Lagman, a long-serving member of the Philippine Congress, recently wrote in the Manila Times that the ammunition needed in this war includes drug-abuse prevention education, skill training and "well-funded health interventions" to "reintegrate former drug dependent into society."
The Philippine National Police's narcotics chief himself, Col. Romeo Caramat, acknowledged that the violent approach to curbing illicit drugs has not been effective. "Shock and awe definitely did not work," he told Reuters in 2020.
A long, tough process
Even if the ICC decides to open a formal investigation, Orentlicher says Duterte's defiance should not be underestimated. Journalists who have exposed the drug war have been jailed, and human rights advocates who have spoken out, including members of the clergy, have been threatened.
"This is going to be a very tough process," Orentlicher says, "not for the faint of heart at all."
Human rights attorney Colmenares maintains a cautious optimism that there will be a legal reckoning on behalf of the victims' families who want justice.
"It may be long and it may be arduous," Colmenares says, "but that's how struggles are fought and that's how struggles are won."
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