ICC prosecutor kept evidence in case PH won’t cooperate in drug war probe – HRW

International Criminal Court Prosecutor Fatou Bensouda served notice as early as October 2016 that she would be monitoring killings in President Rodrigo Duterte’s drug war. (File photo from Agence France-Presse)

MANILA, Philippines — Fatou Bensouda, whose term as prosecutor of the International Criminal Court (ICC) ended on June 15, hinted that she had preserved evidence on the Duterte administration’s drug war that might come in handy in case her request for judicial authorization to investigate the case filed against President Rodrigo Dutete would be approved.

This was revealed at a press briefing on Wednesday by Param-Preet Singh, associate director of the International Justice Program of Human Rights Watch.

Last Monday, Bensouda revealed that she had already asked for judicial authorization to proceed with a probe on the crimes against humanity complaint filed against Duterte in connection with his bloody drug war.

“But it’s a very real challenge,” Singh said at the briefing. “ I think in the prosecutor’s announcement that accompanied the actual filing, she indicated that she’d already taken steps to preserve evidence knowing that this would be a challenge moving forward.”

“The precise details of that remain confidential, but it is clear that it’s something that the prosecutor is still thinking carefully about, and has already taken steps to address,” she added.

Singh also echoed Bensouda’s insistence that the ICC still had jurisdiction over the Philippines since the alleged crimes happened before the country withdrew its membership in the Rome Statute, the treaty created the ICC.

“The Philippines government is alleging that the ICC doesn’t have subject matter jurisdiction, I mean, the prosecutor disagrees.  The Philippines was state party to the ICC from November 1st, 2011, to March 17th, 2019.  So crimes committed during that eight-year timeframe, or a little less than eight years, are fair game for the ICC,” Singh said.

“When the Philippines became a state party to ICC, they basically gave the court jurisdiction over crimes against humanity, war crimes, and genocide,” she added.

And if ever an investigation is granted by the ICC, then it would not be the first time that a party being probed would not be cooperative.

In that case, Singh said that there was still a wide array of options that the prosecutor could use.

The prosecutor would now be Karim Asad Ahmad Khan, who took over Bensouda’s post on Wednesday.

“It’s a challenge that I think the prosecutor has faced in numerous situations. This won’t be the first,” Singh said.  “And so, the challenge would be to build the case and to establish the evidence and build credible cases from the outside, through deaths per community, bringing victims and witnesses outside of the country to provide evidence to build the respective cases.”

The Duterte administration has insisted several times — just recently after Bensouda’s announcement — that it would not cooperate with a possible ICC probe as the body no longer had jurisdiction over the Philippines.

The administration has also consistently maintained that there were no irregularities, including extrajudicial killings (EJKs), in the conduct of the drug war. In one televised briefing, Duterte blamed the killings that took place outside of anti-drug operations on warring drug syndicates.

The complaint against Duterte was drawn up by the Rise Up for Life and Rights, which is composed of drug war victims’ relatives and rights advocates.  The group accused Duterte of violating Article 7 of the Rome Statute for “widespread and systematic attacks in the form of murder of thousands of civilians.”

In December 2020, the ICC said that it had a reasonable basis to believe that crimes against humanity were committed in the drug war.

The President has constantly condemned international rights advocates and even the ICC itself for allegedly interfering in local affairs, claiming that drug war deaths happened because suspects tried to fight it out against authorities.

Last December, Duterte called ICC prosecutors “fools” for not preparing before announcing that there was sufficient evidence that crimes against humanity were committed under his term.

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