Student blog post: On the basis of the article ‘Can the ICC Probe End Duterte’s Deadly War on Drugs?’ (by Richard Javad Heydarian in Al Jazeera, 14 February 2018) critically discuss the legal issues relating to the involvement of the International Criminal Court in the Philippines.

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

Guest blog by: Baharan Shabani

Duterte’s ‘War on Drugs’ is a controversial issue that has been going on and is still happening in the Philippines. According to Human Rights Watch (see relevant section on the Philippines in World Report 2017) it has brought the country to its worst human rights crisis since the dictatorship in the 1970s under Ferdinand Marcos. Phelim Kine describes the situation in this article. Since June 2016, under Duterte’s presidency, more than 7,000 deaths were caused in suspicious ways; masked, civilian-clothed men or even the police took alleged drug takers into detention and then reported of their deaths in an inaccurate way by stating that the individuals had been killed in self-defence (see here). Although responsibility was accepted for 2,615 of these killings, there seems to be great reluctance to admit responsibility for the other killings.

Duterte is of the opinion that leaving the Rome Statute will make it impossible for the International Criminal Court (ICC) to continue its investigations into these acts. However, theoretically, this will not be the case. Indeed, even after the withdrawal, the ICC will legally be able to bring this case forward.

In his article Richard Javad Heydarian questions the ICC’s ability to end Duterte’s killings. On 17 March 2018 the Philippines withdrew from the Rome Statute as Duterte was convinced that, as a result, the ICC could in no way interfere with his political actions anymore. To determine whether this is true the ICC’s jurisdiction needs to be examined. It is based on four criteria: the person in question (ratione personae), the substance of the case (ratione materiae), the location of the crime (ratione loci) and the time of the act (ratione temporis).

Based on Article 25 (3)(b) of the Rome Statute which deals with individual criminal responsibility Duterte can be prosecuted as natural persons pursuant to this Statute are individually responsible for committing a crime within the jurisdiction of the ICC by ordering, soliciting or inducing such crimes, as it is the case with Duterte. The fact, that he is a Head of State is, according to Article 27 ICC Statute, irrelevant.

The crime that he is being accused of is a ‘crime against humanity’ under Article 5(b) ICC Statute which is further explained in Article 7. All elements of Article 7 ICC Statute must be fulfilled. The act is ‘murder’ under Article 7(a) ICC Statute. It can be said with confidence that, because of Duterte, a large number of individuals have been killed. Second, the killings have been carried out in a widespread and systematic way. Third, such killings were an intended conduct as he often confidently defends his actions (Cyril Arnesto, ‘Extrajudicial Killings and Enforced Disappearance in the Philippines as Crimes against Humanity under the Rome Statute’ (2008-2011) 4 Asia-Pacific Yearbook of International Humanitarian Law 305-331).

If a crime takes place on the territory of a state that is a party to the Statute (Article 12(2)(a) ICC Statute) then the ICC can carry out its investigations. At the time the investigations started, this requirement was fulfilled because the extra-judicial killings only took place in the Philippines.

That being said, the problematic issue is time. Indeed, will the ICC still be able to investigate Duterte’s crimes? Article 127 ICC Statute states that the withdrawal is effective one year after the declaration of withdrawal. For the Philippines that would be March 2019. This is certainly a spark of hope for the ICC. For example, the investigations into acts committed in Burundi, the first State that withdrew from the Statute in 2016, continued for another year. These investigations are still taking place and can be found on the ICC’s website under the current situations. The timeframe in which Burundi was part of the Statute gives the court jurisdiction over it for that particular time (Situation in the Republic of Burundi).

According to the ICC Prosecutor Fatou Bensouda, her office will investigate the crimes committed by Duterte after the start of his presidency in July 2016 and will include all the killings until March 2019. However, it should be noted that to initiate official investigations the Prosecutor will need, according to Rule 50(5) of the Rules of Procedure and Evidence, to seek authorisation from a pre-trial chamber.