On June 14, Fatou Bensouda, then still an International Criminal Court prosecutor, sought ICC judges’ permission to investigate drug-war killings in the Philippines.
In a statement, Bensouda said: “There is a reasonable basis to believe that the crime against humanity of murder has been committed on the territory of the Philippines between July 1, 2016, and March 16, 2019, in the context of the Government of Philippines ‘war on drugs’ campaign.”
She said her preliminary investigation indicated that members of the Philippine National Police, and others working with them, “unlawfully killed between several thousand and tens of thousands of civilians during that time.”
The ICC's authority to prosecute crimes against humanity generally applies to states that are party to the so-called Rome Statute, the treaty which established the ICC. Non-party states can also accept the ICC’s jurisdiction. If the United Nations Security Council refers a situation to the ICC, that also gives the ICC full power to investigate.
If an individual is convicted, they will serve their sentence in one of the states that has agreed to enforce ICC prosecutions.
The ICC has no police force or long-term detention facility, so they rely on cooperating countries to imprison people convicted by the court.
The Philippine’s Commission on Human Rights (CHR) called on the government to “participate in this process of seeking truth and justice for the human rights violations committed in the country.”
But a spokesperson for Philippine President Rodrigo Duterte said the government would not cooperate with the investigation, noting the Philippines was no longer an ICC member.
The spokesperson also rejected the results of Bensouda’s initial investigation.
Others sought to discredit Bensouda. On June 17, Sen. Francis Tolentino, a Duterte ally, attacked Bensouda for “terrorist links.”
“How can she, during her tenure, objectively conduct an investigation when some members of the international community considered her a persona non grata for terrorist links?” Tolentino said.
“A lot of questions will have to be answered first whether a retired prosecutor can still recommend the prosecution of a head of state of a non-Treaty of Rome signatory.”
The claim that Bensouda, whose term as prosecutor ended June 15, has terrorist links, is false.
On June 11, 2020, then-U.S. President Donald Trump signed Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court.”
Bensouda and Phakiso Mochochoko, the Head of the Jurisdiction, Complementarity and Cooperation Division (Office of the Prosecutor) of the ICC, were added to the Specially Designated Nationals and Blocked Persons List (SDN List) of the U.S. Treasury Department’s Office of Foreign Assets Control.
However, they were not added to the list for terror-related offenses. Rather, the Trump administration was reacting to what it called the ICC’s “illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies.”
That, in part, stemmed from the ICC’s decision to “unanimously” authorize an investigation into alleged war crimes committed in the Islamic Republic of Afghanistan by Afghan government national security forces and U.S. military and intelligence personnel, as well as the Taliban.
Trump’s executive order said the decision to investigate could “subject current and former United States Government and allied officials to harassment, abuse, and possible arrest.”
On April 1, 2021, newly-elected President Joe Biden revoked Trump’s order.
A White House statement noted that while the U.S. maintains its objections to the ICC’s claims of jurisdiction over the United States and other non-signatory parties, “the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”
The Duterte government has also argued against the ICC’s jurisdiction.
On June 15, the Philippines Department of Foreign Affairs (DFA) issued a statement on what it called Bensouda’s “deeply regrettable” decision to ask for an investigation into the drug-war killings.
Calling the ICC “a court of last resort,” the DFA said that an Inter-Agency Review Panel headed by the Philippines’ Secretary of Justice was already investigating deaths in the drug war. It added that the panel “is continuing its work, and should be allowed to finish such work.”
“The Rome Statute requires the Court and the Office of the Prosecutor to respect and defer to the primary criminal jurisdiction of concerned State Party, while proceedings are ongoing in the latter. The precipitate move of the Prosecutor is a blatant violation of the principle of complementarity, which is a bedrock principle of the Rome Statute,” the DFA said.
The Philippines withdrew from the ICC in March 2019 after Bensouda announced a preliminary examination into alleged state crimes “in the context of the ‘war on drugs’ campaign.”
Bensouda and others maintain that the ICC still has jurisdiction over the Philippines, as the alleged crimes occurred prior to Duterte’s decision to pull out.
Figures put out by Philippines government agencies, rights organizations and media vary. However, a United Nations report estimated the drug war may have resulted in tens of thousands of deaths from 2016-2019.
The Philippines police put that figure at 6,600.
The U.N. report found that Duterte's public statements "may have incited violence and may have had the effect of encouraging, backing or even ordering human rights violations, with impunity."
A crime against humanity carries a prison sentence not exceeding 30 years.