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Ruben Carranza added 4 new photos.

February 9 at 12:03am ·

I was at the ICC last summer, involved in another case, but keeping an eye on what — as everyone
who isn’t Rodrigo Duterte’s spokesperson knows — is not so much a war on drugs as it is a vicious,
inhuman, immoral and yes, criminal and unlawful war on the poor.
I’ve just been asked by friends and journalists back home: what happens next? The current ICC
Prosecutor appears to be far better at doing what the ICC Prosecutor is meant to do than her
predecessor. Perhaps this comes from lessons she learned when she was his deputy. Or perhaps this
is from the realization that war crimes and crimes against humanity aren’t only what the global
North States say they are — Syria killing Syrians but not Saudi Arabia killing Yemenis or NATO
forces torturing Iraqis or killing Afghans — but what the Rome Treaty that created the ICC says they
may be. This might explain in part why she has opened investigations not just over crimes against
humanity in Libya, for example, but over war crimes committed in Afghanistan.
She has also apparently understood that crimes against humanity aren’t only murder, rape and other
acts of criminal violence that happen during political upheavals or in war or armed conflict involving
identity, territory or power but can be the thousands of extrajudicial killings, forced disappearances
and sexual violence that have been or are being committed in the various asymmetrical wars now
being fought — those that have been [disingenuously] described as a ‘war on terror’, for example, or
those that have been described in a self-serving way by those who order them as a ‘war on drugs,’ —
real or concocted.
The current ICC Prosecutor’s predecessor was asked to open a preliminary examination involving
the war on drugs in Mexico. It was eventually refused, despite communications [which aren’t formal
complaints but really letters and information from citizens, NGOs and political leaders, similar to
what Filipino lawmakers Antonio Trillanes IV and Gary Alejano and my former UP Law debating
team student Jude Sabio submitted from the Philippines] that called the Prosecutor’s attention to
over 40,000 murders and forced disappearances carried out by Mexican State forces and drug
cartels in an actual war over drugs among armed groups that fought each other [versus what is going
in the Philippines: a concocted ‘war on drugs’ in which mostly poor, unarmed civilians are killed in
urban poor neighborhoods, sometimes right inside their shanties]. [I’ll post a copy of the Office of the
ICC Prosecutor’s letter rejecting requests for a preliminary examination in the Mexico case in the
comments so those interested can compare. It’s in Spanish.]
So when someone who ought to know better claims the ICC Prosecutor is just ‘wasting the time and
resources’ of the Court in opening a preliminary examination, that claim in itself is factually wrong
— no time nor resources are wasted when the Prosecutor has only STARTED to conduct a
preliminary examination which, in the first place, is her job [as she explains
here http://bit.ly/2Ebszrp ]. [In fact, one can even argue that the maintenance of an ICC
investigation, such as the now years-long investigation of the Colombia situation, helps move not
only criminal accountability forward but other forms of what in the work I do we call transitional
justice.]
But the claim that the ICC Prosecutor is only wasting her time is also legally inconsistent with the
position that Rodrigo Duterte has taken — that his government has been investigating these killings,
that there have been killings but not on the scale of 12,000 murders, that these are in fact part of a
‘war’ on ‘drugs’ in which those killed fought back. The Philippines is a party to the ICC treaty; it
committed itself to pursue accountability for international crimes covered by the treaty AND to
cooperate with the Prosecutor when she is examining whether her office ought to further investigate
these cases — at which point it then becomes what can properly/technically be called an
“investigation.” Determining accountability and rendering justice is not and can never be a waste of
time.
The obligation to cooperate with the ICC Prosecutor means Duterte cannot fall back — and be the
one wasting time — on his senseless dares to those seeking to investigate these killings to debate
with or confront him [only for him to then hide behind threats of violence against these mostly
women investigators ] or on his pseudo anti-imperialist rants and claims of being singled out for
accountability. Duterte is not an African or Arab leader. No one in the UN Security Council has
referred this matter to the ICC — certainly not the Russian nor Chinese governments he claims are
his friends, nor any of the UNSC States from the West. In fact, what should be concerning is the fact
that Duterte, who has threatened to leave the ICC, is backed by the Presidents of the United States,
Russia and China -- all of whose governments have refused to ratify the ICC treaty.
Duterte's claims contradict themselves: he says he has never explicitly authorized death squads to
commit these killings, but he also then loudly encourages impunity for those who commit them.
Whether these killings fit a pattern and whether that pattern constitutes a crime against humanity is
precisely what the ICC Prosecutor will look into, using information she has already been given and
information she can find. At this point, others can provide information to the Prosecutor —
Philippine NGOs, religious leaders, community and other organizations supporting the families of
those killed [take note Jean Enriquez], human rights groups in the Philippines and abroad, the
Commission on Human Rights. Even the Philippine National Police or the Department of Justice —
which are required to cooperate with the ICC — can already volunteer information, if their current
leaders finally overcome their ignorance and recognize that there is such a thing as “crimes against
humanity.”
At the initial stage of this “preliminary examination,” the Prosecutor will be asking if the crimes
alleged are ‘manifestly’ outside the ICC’s jurisdiction OR whether they are already being examined,
investigated or prosecuted at the ICC. To me at least, those questions aren’t very difficult to answer
— although it is important to note that the Prosecutor says she is specifically looking at the period
since July 1, 2016, when Duterte became President. That doesn’t mean that drug-related
extrajudicial killings in Davao City when Duterte was mayor there are irrelevant; it only means that
the Prosecutor is, can and will be looking at information beyond the communications publicly known
to have been submitted to her office so far. This initial part of a preliminary examination shouldn’t
take long. It’s main purpose is for the Prosecutor to see the “seriousness” of the information she
received or will be gathering.
When she considers the allegations serious enough AND not manifestly outside the ICC’s jurisdiction,
she will then begin to examine — still at this preliminary examination stage — whether the alleged
crimes are within the ICC’s jurisdiction. She will focus on whether these crimes have been carried
out on a large scale and as part of a plan or a policy. In other words, she will ask whether the number
of extrajudicial killings committed since Rodrigo Duterte became President are so unusually high
and could be part of a systematic plan of policy. If she finds that they are, she will then examine the
question of “complementarity” [a question that normally deserves a longer discussion and which
will likely become the central argument by which Duterte will prolong the possibility of an
investigation or trial] — whether there is a domestic investigation being done in good faith — and
determine the “gravity” of these crimes. That could then lead to what in my opinion will be the most
important question that the Prosecutor will ask: whether it is “in the interest of justice” that the
Court step in, regardless of the claims of Rodrigo Duterte that he is either NOT ordering poor
Filipinos to be killed OR that he is NOT AFRAID of being held to account for ordering these killings.
In fact, Duterte doesn’t even have to make sense or make up his mind or be dishonest or truthful to
himself or to his own people for the preliminary examination to proceed. It is and will be done,
regardless of what he or those representing him say and it is being done because — offhand — it
appears to the ICC Prosecutor that massive, systematic and large-scale injustices have been
committed and some form of criminal accountability is called for.
Remember that the likely crime to be charged, if it gets to that point, is the CRIME AGAINST
HUMANITY OF MURDER — as defined by the treaty creating the ICC. Let me just note three points
here that may become significant going forward: (1) that there is a Philippine law that adopts and
“domesticates” the ICC treaty and thus makes the crime against humanity of murder — and not
simply murder or extrajudicial killing — a domestic crime [none of the cases before the Philippine
Supreme Court and, as far as I know, the Ombudsman, involving these extrajudicial killings are based
on this crime], (2) the incumbent President appears to be immune from prosecution for that crime
— the crime against humanity of murder based on that Philippine law before a Philippine court —
but not for the crime against humanity of murder under the ICC treaty and at the ICC and (3) as the
Prosecutor warned in an October 2016 press statement, she could include in this examination other
“high officials” of the Philippine government involved in “ordering, requesting, encouraging or
contributing” to crimes against humanity.
At the ICC lobby, I took photos of an exhibit that (somewhat simplistically) describes “the ICC
process.” It may still be helpful to look at, for those wondering what basically happens next. I was
leaving the ICC premises for the day when I took that first picture. It was a cloudy afternoon in The
Hague. But the sun was starting to come out.