In societies where weak criminal justice systems, marginalization, and conflicting political interests prevent victims of gross human rights violation from seeking justice, international justice mechanisms exist to restore the rule of law by conducting investigations, bringing perpetrators to justice, and ensuring victims are provided with reparations for the harm done.
Amnesty International Philippines is committed in its work on promoting international justice by supporting the efforts of existing international justice mechanisms in demanding accountability for the most serious crimes committed in the country.
International Justice Mechanisms
The International Criminal Court
The International Criminal Court (ICC) is a permanent, international criminal court that was established in 2002 to investigate and prosecute those who are in the highest echelons of power who have committed the most heinous crimes as stipulated on the Rome Statute: genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC has conducted investigations in countries where national authorities fail to act on a certain crime, including the Philippines. As of now, the case filed before the ICC concerning the Philippines is still on the preliminary examination phase.
Ad hoc international criminal tribunals
Both created by the United Nations Security Council, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda were created to address atrocities committed during the conflict in former Yugoslavia and the genocide in Rwanda.
Hybrid courts are created when the domestic justice system lack the necessary infrastructure, processes, and resources to properly investigate and prosecute serious crimes in countries that have gone through conflict or crisis. Hybrid courts have been established in countries of Cambodia, Sierra Leone, and Bosnia.
The Philippines at the ICC
In 2011, the Philippines ratified the Rome Statute and became the 117th member of the ICC. Civil society organizations and human rights advocates played an important role in campaigning for its ratification and bringing international justice mechanism to public attention.
In 8 February 8, the Office of the Prosecutor of the ICC announced that it will be opening the preliminary examination in the Philippines. The examination would cover the crimes allegedly committed by the State since 1 July 2016 during its conduct of the War on Drugs campaign by the current Philippine Government. Particularly, the ICC prosecutor has been examining cases of extrajudicial execution committed during anti-drug operations by the police.
The ICC prosecutor has been examining cases of extrajudicial execution committed during anti-drug operations by the police.
A month after the Office of the Prosecutor announced the opening of the Preliminary Examination which include looking into the possible criminal responsibility of the president himself, President Rodrigo Duterte announced the withdrawal of the Philippines from the Rome Statute.
As of 17 March 2019, the Philippines is no longer a member of the ICC, having submitted its withdrawal to the United Nations on 17 March 2018. According to article 127 of the Statute, withdrawal becomes effective a year after the deposit of notice of withdrawal to the United Nations Secretary-General. Crimes committed after the effectivity of the withdrawal will not anymore fall under the jurisdiction of the Court. However, the withdrawal from the Statue will have any impact on the ongoing preliminary examination of the Philippine situation at the ICC. The court can continue to examine and possibly investigate cases that occurred from 1 July 2016 to 16 March 2019.
On 14 June 2021, ICC Prosecutor Fatou Bensouda announced the conclusion of her office’s preliminary examination and her submission to the Court’s pre-trial chamber a request for a full investigation into the Situation in the Republic of the Philippines between 1 November 2011 and 16 March 2019.
In the request she maintains that they have reasonable basis to believe that the Crimes Against Humanity of Murder and Torture or Other Inhumane Acts as well as other crimes within the jurisdiction of the ICC has been committed from at least 1 July 2016 to 16 March 2019 within the context of the Philippine government’s “war on drugs.”
With the decision of the Office of the Prosecutor to request for a full investigation, the registry of the ICC under the supervision of the Victims Participation and Reparation Section (VPRS) opened the Victims Representation Process. As per the ICC framework, victims of crimes allegedly committed in the Philippines in the context of the War on Drugs campaign between 1 November 2011 and 16 March 2019 have the right to submit “representations” to provide their views, concerns, and expectations to the ICC judges who are reviewing the OTP’s request.
The process ended on 13 August 2021, which was the deadline set by the ICC judges of the Pre-trial Chamber I. On 27 August 2021, the Registry transmitted to the ICC judges 204 victims representations submitted on behalf of 1,530 individual victims and 1,050 families. On the public redacted report prepared by the VPRS, an overwhelming 94% of submissions fully supported the Prosecutor’s request to investigate. Victims who supported the request believe that the investigation stage will open a genuine investigation by an impartial international court, and that this will allow the victims’ and their families’ voices to be heard.
On 15 September 2021, the Pre-trial Chamber I has formally authorized the commencement of the investigation into the Situation in the Philippines, in relation to crimes allegedly committed in the Philippines between 1 November 2011 and 16 March 2019, in the context of the so-called ‘war on drugs’ campaign. Just 3 months after the Office of the Prosecutor requested authorization to launch an investigation.
Timeline: EJE victims’ road to justice
8 February 2018 – The Office of the Prosecutor, under the leadership of Prosecutor Fatou Bensouda, announced their decision to open a preliminary examination into the situation of the Philippines. In her announcement, the Prosecutor said that the preliminary examination will analyze crimes allegedly committed in this State Party since at least 1 July 2016, in the context of the “war on drugs” campaign launched by the Government of the Philippines.
17 March 2018 – The Government of the Philippines announced its withdrawal from the International Criminal Court.
17 March 2019 – The withdrawal of the Philippines as a state-party to the Rome Statute of the ICC took effect, a year after its deposit with the United Nations Secretary-General.
6 December 2019 – In her annual report on Preliminary Examination Activities, Prosecutor Bensouda mentioned that the information available to her Office provides a reasonable basis to believe that the crimes against humanity of murder, torture and the infliction of serious physical injury and mental harm as other inhumane Acts were committed on the territory of the Philippines between at least 1 July 2016 and 16 March 2019, in connection to the WoD campaign launched throughout the country. The Prosecutor also said that her Office anticipates reaching a decision on whether to seek authorisation to open an investigation into the situation in the Philippines in the first half of 2021
14 June 2021 – Prosecutor Bensouda announced that the preliminary examination into the situation of the Philippines has concluded and that she has requested judicial authorization to proceed with an investigation. According to the case record, The Prosecution has identified no substantial reason to believe that an investigation would not be in the interests of justice.
13 August 2021 – the Victims Presentation and Reparation Section concluded the Victims Representation Process in accordance to the deadline set by the ICC judges.
27 August 2021 – the Registry submitted its report on the Victims Representation Process which covers 204 victims representations submitted on behalf of 1,530 individual victims and 1,050 families. Of the 204 representations transmitted to the court, 94% fully supported the Prosecutor’s request to investigate.
15 September 2021 – the ICC judges of the Pre-trial Chamber I issued their decision on the OTP’s request. After considering the reports transmitted to the chamber including victims representations and Registry’s report, the judges have authorized the commencement of a full investigation into the Situation in the Philippines in relation to crimes within the jurisdiction of the Court allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called ‘War on Drugs’ campaign
7 October 2021 – Prosecutor Khan issued a statement following the PTC I’s decision to authorize an investigation
- Prosecutor Khan expressed his commitment to an investigation that will “seek to uncover the truth and aim to ensure accountability.” He expressed his willingness to “constructively engage with national authorities in accordance with the principle of complementarity and the Court’s obligations under the Statute.”
10 November 2021 – GovPH submitted their deferral request to the court
- The Government of the Philippines through the Ambassador of the PH to the Netherlands submitted a 6-page letter in response to the Prosecution’s notification under Article 18(1) with a request that the Prosecution defer to the Philippines’ investigation of nationals or others within its jurisdiction (“the Deferral Request”).
- In the letter, the Philippine Government cited that the Court may only exercise jurisdiction where national legal systems fail to do so, “which is certainly not the case in the Philippines.”
- To fully demonstrate that “the domestic institutions in the Philippines are fully functional and more than adequate to address the issues,” the Philippine Government mentioned the DOJ review panel whose role is to investigate all reported deaths during anti-narcotic operations in the country. They also cited that the National Bureau of Investigation (NBI) is also conducting its own proceedings on drug-related deaths involving law enforcement agents in partnership with PNP – Internal Affairs Service (PNP – IAS).
- Other efforts mentioned by the Philippine Government included monitoring of cases filed in National Prosecution Service, the existence of Administrative Order No. 35, the possibility of filing a petition for Writ of Amparo and Writ of Habeas Data, and the signing of the UN Joint Program on Human Rights (UNJPHR).
18 November 2021 – Prosecutor Khan informs PTC I of the GovPH deferral request under article 18(2)
- Based on the deferral request, the Prosecution requested additional information from the Philippines under rule 53 of the Rules of Procedure and Evidence. Such additional information is necessary for the Prosecution to assess the scope and effect of the Deferral Request, and to determine whether to apply to the Pre-Trial Chamber, under article 18(2) of the Statute, for authorisation to continue investigating.
- The Prosecution temporarily suspended its investigative activities while it assesses the scope and effect of the Deferral Request.
- The Prosecution did, however, continue its analysis of information already in its possession, as well as of any new information it may receive from third parties.
24 June 24, 2022 – Prosecutor Khan requests to resume the investigation of the situation in the Philippines
- Prosecutor Khan reported that “the Philippines provided additional information to my Office in December 2021 and again in March 2022, all of which has been made available to Pre-Trial Chamber I along with today’s application.”
- In his 53-page report, Prosecutor Khan concludes that the Deferral Request of the Philippine Government is not substantiated, and, in any event, the national proceedings referenced do not sufficiently mirror the Court’s investigation. Consequently, he asserts that the investigation should be re-authorized and resumed.
- He also mentioned that he has informed the Philippine authorities of his intention to file his application to the PTC I to deny the deferral request.
- In his letter, he clarified that he remains “ready and willing to continue the productive dialogue they have had since November 2021, and to explore ways in which, moving forward, they can effectively cooperate to deliver justice to victims in the Philippines.”
Read more on Amnesty International reports on the Philippine bloody ‘war on drugs’.