By: Ram Orfanel
The International Criminal Court’s Probe into Duterte’s Drug War
In May 2016, Rodrigo Roa Duterte was elected as the 16th President of the Philippines after promising to curb the spread of illegal drugs within the country. Claiming that the war “...would be bloody” [1] and that change would be felt within six months, Duterte won the 2016 Philippine National Elections with more than 16 million votes. Since Duterte’s inauguration in June 2016, casualties of the government’s war on drugs are estimated at “...over 12,000 Filipinos…[majority of which are] urban poor” [2]. As a result, the International Criminal Court (ICC) Prosecutor Fatou Bensouda initiated a preliminary investigation in 2018 into the country’s war on drugs. This culminated in September 2021 when the ICC pre-trial chamber affirmed that sufficient evidence exists for a full investigation into potential crimes against humanity. Since then, high-ranking members of the Duterte administration have questioned the jurisdiction of the ICC, grounded on the principle of complementarity that governs admissible cases for the court.
Such controversy continues to spark interest even after Duterte ended his term last June 30, 2022. With ongoing discussions as to how the ICC ought to intervene, it is imperative to explore whether the arguments presented by the Duterte administration, largely predicated on complementarity, are indeed meritorious. The principle of complementarity derives from the rules of admissibility found in articles 17 to 53 of the Rome Statute (the ICC’s founding treaty), which entails that cases can only be brought to the court if the state is unable or unwilling to investigate and try the person(s) being charged. Proponents of the Duterte administration argue that domestic courts ought to have jurisdiction, with Chief Presidential Legal Counsel Panelo claiming how “genuine complainants [can] come forward to the proper authorities instead of personalities who will use their plight for political ambitions. [3]” To weigh in on this issue, I first outline issues of inadmissibility as outlined by Article 17 of the Rome Statute, then utilize Paul Seils’ two-step process of determining admissibility to assess whether the Philippine drug war falls under the ICC.
Inadmissibility under Article 17 of the Rome Statute
Under Article 17 of the Rome Statute, a case is inadmissible if any of the following are true:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over
it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court [4].
The situations outlined above limit ICC intervention across different points of the judicial process, starting from investigation to after a verdict has been delivered. This underlies the principle of complementarity, grounded on balancing state sovereignty with that of international intervention. This aligns with the ICC’s role of “a court [of] last resort, seek[-ing] to complement, not replace, national Courts” [5].
According to Article 17, cases can meet either of two standards to fall under ICC jurisdiction: inability or unwillingness of domestic institutions. Domestic institutions are considered unwilling to try cases if a). there is an attempt of “...shielding the person concerned from criminal responsibility,” b). “an unjustified delay…” or c). indications of procedures “not being conducted independently or impartially…” [6]. On the other hand, domestic institutions are unable to try cases if the necessary infrastructure and mechanisms to support the entirety of the process (gathering of evidence, holding the trial, etc.) are not present [7]. Before proceeding further, two caveats must be made pertaining to the unwillingness or inability exception in Article 17. Firstly, it is only necessary to prove either unwillingness or inability of domestic courts, not necessarily both. Secondly, the word genuinely stipulates that willingness and ability cannot just be addressed at face value, but whether such conditions are met in practice.
Two-Step Process in Determining Admissibility
Paul Seils, Vice President of the International Center for Transitional Justice, developed a two-step process for determining admissibility based on an extensive array of past ICC decisions, ranging from the Katanga case of the Democratic Republic of Congo (DRC) to the Bemba case of the Central African Republic (CAR). To determine admissibility before the ICC, the following process is employed:
Have national authorities investigated (or are investigating) the same case?
If No: Case is admissible to the ICC
If Yes: Proceed to #2
If they investigated the same case, did they choose to prosecute?
If No: Did this arise from inability or unwillingness of domestic courts?
If Yes: Case is admissible to the ICC
If No: Case is inadmissible to the ICC
If Yes: Case is inadmissible (unless trial was a sham, as defined by the unwillingness criteria in Article 17) [8].
Note that the case being investigated or tried by the state must be the same as the one before the ICC. Although many states may not have the exact categories of crimes prosecuted by the ICC (ie., “crimes against humanity,” “genocide,” or “war crimes”), states can still prosecute alleged perpetrators under ordinary crimes such as murder or sexual assault. As long as the nature of the charge is similar to what the ICC is currently pursuing, then the state is processing the same case as that of the ICC [9].
Guided by an understanding of Article 17 and the two-step process of determining admissibility, we can now begin the process of assessing whether the ICC has jurisdiction to investigate and prosecute cases pertaining to the Duterte administration’s war on drugs.
IV. National Investigations into the Philippine War on Drugs
One ought to first determine whether the Philippines has investigated reported cases pertaining to the drug war. This meets the first question employed in Seils’ two-step process as outlined above. Only then would other considerations such as inability or unwillingness be relevant in determining admissibility.
On one end, top-ranking members of the Duterte administration have claimed that potential cases of abuse are already being investigated. In 2018, when asked about government transparency regarding the drug war, Chief Presidential Legal Counsel Panelo said that “there is the Freedom of Information (FOI). Ask the PNP for records, ask the courts who are these people who have been prosecuted…”[10]. When a report by the Department of Justice revealed potential problems in the administration’s drug war, Presidential Spokesperson Harry Roque commented that “this decision of the DOJ would prove that…when somebody is killed, it would be investigated, litigated, while those who killed would be held accountable” [11]. Statements made by Duterte’s close circle point to the administration’s stance that the government is acting on cases, rebuking the need for international jurisdiction.
However, such statements made by the administration seem to contradict what had been happening on the ground. When ex-Mayor Espinosa (accused of illegal drug possession) was killed in his cell in the Baybay City Provincial Jail, Duterte claimed that he “...will have to defend them [the police]...” and take their account as “the true version” [12]. Likewise, Duterte in a speech at the Villamor Airbase in 2016 to members of the police and military claimed that “I will protect you. I will not allow one policeman or one military to go to jail” [13]. This reveals that there is a top-down effort to protect law enforcement from accountability, refusing to genuinely investigate charges hurled against them. This is further reinforced by how notable cabinet members have declined access to information regarding the drug war. Solicitor-General Jose Calida filed a Motion to Reconsider before the Supreme Court when asked for the full disclosure of information pertaining to nearly 3,000 deaths [14]. Clearly, the administration was reluctant to pry into such cases. Whether or not investigations have taken place, the credibility of the process was not subject to scrutiny given the absence of transparent information and the effort to shield individuals from accountability.
From this, it would seem that the answer to question #1 in Seils’ test of inadmissibility (“Have national authorities investigated (or are investigating) the same case?”) is no. Even if the administration has claimed to investigate cases pertaining to the drug war, the head of state himself has explicitly expressed that he would shield law enforcement from measures to hold them accountable. This is coupled with the fact that cabinet members have refused access to records pertaining to the drug war, therefore casting doubt as to the legitimacy of any ongoing investigations. Thus, given that the answer to question #1 is negative, the ICC ought to have jurisdiction over the case–without even a consideration of unwillingness or inability.
This, alone, shows the fragility of the defense forwarded by the Duterte administration. However, I wish to grant them the benefit of the doubt. That is, let us assume that investigations are taking place so that the answer to question #1 is affirmative. This means that we proceed to the second part of Seils’ test for inadmissibility. In the next section, I show why even in the best case (ie., the administration is investigating impunities), the Duterte case still ought to fall under ICC jurisdiction.
V. Inability and Unwillingness of Domestic Institutions to Prosecute
Under the second part of Seils’ test for inadmissibility, the question of inability or unwillingness now becomes relevant. We are guided by the following line of inquiry:
2. If they investigated the same case, did they choose to prosecute?
If No: Did this arise from inability or unwillingness of domestic courts?
If Yes: Case is admissible to the ICC
If No: Case is inadmissible to the ICC
If Yes: Case is inadmissible (unless trial was a sham, as defined by the unwillingness criteria in Article 17) [15].
So firstly, did the Philippine government choose to prosecute? The answer depends on which types of perpetrators we are speaking of. In the case of on-the-ground law enforcement officers, several complaints have been filed, but only a few have reached trial courts and even fewer have resulted in convictions. Last January 26, 2022, the Justice Secretary at the time commented that out of 52 suspected cases of “anti-illegal drugs police operations that resulted in deaths,” only 4 reached the regional trial court level as most of them are still under review [16].
Although this signifies the fledgling state of the Philippine judiciary, one could still make the argument that there are ongoing efforts to prosecute on-the-ground law enforcement officers. There have been numerous cases hurled against law enforcement, and several have made it to regional trial courts where they are heard by judges. It is unclear whether the slow processing of cases is a result of institutional incapacity or if there is an active political effort to slow down and undermine such cases. The answer to this probably depends on a case-to-case basis, as the administration likely differs in how it regards low-ranking officers from those in the echelons of power. It may let due process take its course when it comes to low-level officers, but actively intervene when key officials are the ones being deposed.
However, the answer becomes clearer when speaking of those higher up the political hierarchy. This was specifically true for the man on the top of the political ladder–Rodrigo Duterte. I would contend that there was a clear inability and unwillingness to prosecute Duterte during his term of office. Specifically, I make the argument that (a) presidential immunities granted by legal precedent entailed that the judiciary was unable to prosecute and that (b) Duterte’s soft power meant that the legislative branch was unwilling to genuinely process impeachment complaints. It is important to discuss this as Duterte himself was the main subject of such charges, not only as a result of command responsibility, but by his central role in crafting and executing the Philippine government’s anti-illegal drug platform.
Firstly, there was a clear inability to prosecute President Duterte during his term as legal precedent vested him with civil and criminal immunity. In a 2006 decision, the Supreme Court in David v. Macapagal-Arroyo proclaimed that “the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case…It will degrade the dignity of the high office of the President, the head of State...” [17]. This was reaffirmed when Senator Leila De Lima filed a case against President Duterte claiming that there were “acts violative of her right to life, liberty and security” after a series of threats were hurled against her [18]. As seen here, a sitting president is protected from legal prosecution, meeting the inability standard. This ought to invoke ICC jurisdiction because domestic courts did not possess the legal capacity to try and hear cases against a president.
Secondly, it was difficult to hold the President accountable given the soft power he wielded. Given that legal precedent protects a president from criminal or civil suit, the strongest check against an incumbent president is the legislature’s power to impeach as granted by the 1987 Constitution. This, however, was highly untenable in Duterte’s case. President Rodrigo Duterte held a supermajority in both the House of Representatives and the Senate, such that it was incredibly difficult to even gain traction for an impeachment hearing. Every impeachment complaint that has been hurled against the President has been struck down by the House of Representatives [19]. This is understandable given that the President’s rhetoric yielded him incredibly high approval ratings [20], giving local representatives massive political incentive to offer their support. The possibility of impeachment was made even more unlikely by the high bar set by the 1987 Constitution in terms of votes from both chambers of Congress.
With this, I have shown that Philippine domestic institutions were both unwilling and unable to try cases on the drug war against Rodrigo Duterte. Thus, even if there were investigations (hence, passing the first part of Seils’ test), the ICC still ought to have jurisdiction over cases hurled against the President. A defense grounded on the principle of complementarity is simply insufficient for the administration to protect itself from ICC intervention as I have proven through a thorough analysis of the situation on the ground.
VI. Conclusion and Recommendations
I have carefully utilized Seils’ two-part test to guide my analysis of the situation of Duterte. On the first question (ie., are there/have there been any ongoing investigations), I show that the answer is no because there was a systemic bias in information-gathering efforts in favor of the administration. From this alone, the drug war case ought to fall under ICC jurisdiction. However, I take this a step further. Assuming their best case (that is, they pass the first part of the test), they still did not choose to prosecute due to inability and unwillingness given the President’s immunity as enshrined by legal precedent and his soft power on the legislative. This entails that the case is admissible to the ICC even under the second part of Seils’ test.
While I have shown why the ICC holds jurisdiction to try Duterte, future inquiries can build upon my work by investigating changes amidst the country’s new political landscape. Under the new administration of President Ferdinand Marcos Jr., there could be a shift in how the government handles the drug war and how it holds abusive government officials accountable. Given that Duterte’s term ended after June 30, 2022, he no longer enjoys the legal immunities he once had and his influence over the legislature may not be as powerful. As the new administration settles in, analysis in the upcoming years could prove to be consequential in the question of who has jurisdiction over such drug cases.
References:
[1] Patricia Lourdes Viray, “Duterte admits to 'bloody' presidency if he wins” Philstar (2016), https://www.philstar.com/headlines/2016/02/21/1555393/duterte-admits-bloody-presidency-if-he-wins (last visited Nov 18, 2022).
[2] “Philippines' 'war on drugs'” Human Rights Watch (2017), https://www.hrw.org/tag/philippines-war-drugs (last visited Nov 18, 2022).
[3] Lian Buan et al., “Duterte Gov't insists there is working justice in Drug War but can't show proof” Rappler (2021), https://www.rappler.com/nation/duterte-government-insists-working-justice-drug-war-cannot-show-proof/ (last visited Nov 18, 2022).
[4] Rome Statute of the International Criminal Court, art. 17, July 17, 1998, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[5] “About the Court” International Criminal Court, https://www.icc-cpi.int/about/the-court (last visited Nov 18, 2022).
[6] Rome Statute of the International Criminal Court, art. 17, July 17, 1998, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[7] id.
[8] Paul Seils, “Part Five: The Rules on Complementarity and What the ICC Has Said So Far,” in Handbook on complementarity: An introduction to the role of National Courts and the ICC in prosecuting international crimes 37–62 (2016).
[9] id.
[10] Lian Buan et al., “Panelo says 'simple' to get drug war reports via FOI. It's not.” Rappler (2018), https://www.rappler.com/nation/210747-panelo-answer-obtaining-war-on-drug-reports-through-foi/ (last visited Nov 18, 2022).
[11] Gabriel Pabico Lalu, “DOJ report on Drug War is proof that Gov't is working to check errors - Roque” Inquirer (2021), https://newsinfo.inquirer.net/1506254/doj-report-on-drug-war-proof-that-govt-is-working-to-check-errors-roque (last visited Nov 18, 2022).
[12] “Philippines' Duterte vows to protect police after inquiry shows 'Rub out',” Reuters (2016), https://www.reuters.com/article/cnews-us-philippines-drugs-idCAKBN13W1C3 (last visited Nov 18, 2022).
[13] “Duterte tells troops in drug war: 'I will protect you'” ABS-CBN News (2016), https://news.abs-cbn.com/news/09/17/16/duterte-tells-troops-in-drug-war-i-will-protect-you (last visited Nov 18, 2022).
[14] Lian Buan et al., “Calida refuses to give SC full documentation of Drug War” Rappler (2018), https://www.rappler.com/nation/193474-calida-refuses-submit-drug-war-documents-supreme-court/ (last visited Nov 18, 2022).
[15] Paul Seils, “Part Five: The Rules on Complementarity and What the ICC Has Said So Far,” in Handbook on complementarity: An introduction to the role of National Courts and the ICC in prosecuting international crimes 37–62 (2016).
[16] Rey E. Requejo, Four EJK cases filed in court, 48 for Review Manila Standard (2022), https://manilastandard.net/news/314181588/four-ejk-cases-filed-in-court-48-for-review.html (last visited Nov 18, 2022).
[17] David v. Macapagal-Arroyo, G.R. No. 171396 (S.C., May 3, 2006) (Phil.), https://lawphil.net/judjuris/juri2006/may2006/gr_171396_2006.html.
[18] Leila M. De Lima vs. President Rodrigo R. Duterte, G.R. No. 227635 (S.C., October 15, 2019) (Phil.), https://sc.judiciary.gov.ph/9975/.
[19] Martin Petty, “Philippine panel throws out impeachment complaint vs Duterte” Reuters (2017), https://www.reuters.com/article/us-philippines-politics/philippine-panel-throws-out-impeachment-complaint-vs-duterte-idUSKCN18B0D4 (last visited Nov 18, 2022).
[20] Rigoberto Tiglao, “Duterte's approval ratings highest in ph history, highest among current world leaders” The Manila Times (2022), https://www.manilatimes.net/2022/07/22/opinion/columns/dutertes-approval-ratings-highest-in-ph-history-highest-among-current-world-leaders/1851802 (last visited Nov 18, 2022).