The administration of Ferdinand Marcos Jr. in the Philippines has opposed attempts to resume a probe by the International Criminal Court (ICC) on extrajudicial killings committed during the anti-drugs campaign of former President Rodrigo Duterte.
In a submission made by Solicitor General Menardo Guevarra to the pre-trial chamber (PTC) on Thursday, September 8, the Filipino government opposed the moves by the ICC’s Office of the Prosecutor (OTP) to resume the investigation.
The submission was made in response to ICC prosecutor Karim Khan’s invitation for comments on the OTP’s submission on resuming the investigation into the extrajudicial killings that took place during the anti-drugs campaign that was launched under Duterte’s rule, popularly called the “war on drugs.”
The scope of the investigations would have included not only the killings that took place after Duterte became the president in 2016, but also those that occurred in Davao City between 2011 and 2016 when both Rodrigo Duterte and his daughter, current Vice-President Sara Duterte, governed as mayors.
According to a press release by Guevarra, the Marcos government argued that the ICC no longer holds any jurisdiction over the country. The Philippines withdrew from the ICC and the Rome Statute in March 2019, shortly after the court initiated a comprehensive probe into the “war on drugs” killings.
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Despite the withdrawal, as per Article 27 of the Rome Statute, criminal proceedings on incidents that took place before the withdrawal are valid. This was reinforced in a 2021 ruling by the Philippines Supreme Court that ordered the government to cooperate with the ICC in the probe.
As per Guevarra’s statement, the government argued that the killings in question “do not constitute ‘crimes against humanity,’ considering that said incidents do not qualify as an ‘attack’ against the civilian population” and that “the said occurrences were not in furtherance of a state or organizational policy to commit such attack.”
The government also added that Filipino state agencies are currently conducting investigations of their own into these deaths and that the state is “neither unwilling nor unable to carry out these domestic proceedings.”
The government further argued that state-level domestic proceedings should take precedence, and that the ICC’s probe is unwarranted on this account. The submission also included progress reports and proof of investigations.
A Department of Justice investigation was launched in 2020 under Guevarra, who then served as the secretary of justice under Duterte. The probe was criticized by Khan as “unsatisfactory” and a “mere desk review,” which was followed by mostly administrative sanctions instead of criminal sanctions against the perpetrators.
Two reports have been released so far by the Department of Justice based on investigations in hundreds of cases. The first report released in February 2021 based on investigations covering a “sample size” of over 5,000 case files of deaths in nanlaban (resisting arrest) cases admitted “wrongdoings” by officers and grave procedural lapses by the Philippines National Police (PNP).
The second report released in August 2021 recommended administrative sanctions in 52 cases of such “wrongdoings.” The Justice Department’s reports on the killings have been widely criticized by rights groups and families of victims for being “too belittling and too belated.”
The department was accused of dodging crucial questions in their investigations and criticized for not reaching out to the families of those killed in anti-drug operations. Criticisms were also leveled at the fact that of the nearly 6,000 estimated official cases since 2016, the department was given access to only 61 cases.
So far, only one case of extrajudicial killing has led to the conviction of police officers guilty of the crime. In November 2018, a court in Manila convicted three police officers for the murder of 17-year-old Kian delos Santos during a violent drug raid, where the officers were accused of planting weapons and drugs on the victim.
Official raids and operations have led to 5,810 deaths as of September 2020, according to government figures. Independent observers and rights groups have estimated that the real number could be much higher due to gross underreporting and extra-judicial killings by law enforcement officers and military forces along with vigilante groups and militias like the infamous Davao Death Squad.
Independent estimates by human rights activists and the media of the actual death toll range between 7,000 to 9,000, with some putting the estimate even higher at 12,000 to 20,000. The operations have also led to tens of thousands of arrests, for even the most minor non-violent charges.
