Yesterday, June 15, International Criminal Court prosecutor Fatou Bensouda announced that there was enough evidence to merit the opening of a preliminary examination into President Rodrigo Duterte’s war on drugs. “Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing,” Bensouda said on the ICC website.
In response, the Philippine government through the Department of Foreign Affairs, today issued its official statement in response to the ICC announcement, calling Bensouda’s decision “deeply regrettable.”
The full text of Bensouda’s announcement—which includes mention of a similar examination in Venezuela—is below, along with the DFA’s response.
Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening Preliminary Examinations into the situations in the Philippines and in Venezuela
Since 2016, I have closely followed the situations in the Republic of the Philippines (“the Philippines”) and in the Bolivarian Republic of Venezuela (“Venezuela”). Both countries are States Parties to the Rome Statute.
Following a careful, independent and impartial review of a number of communications and reports documenting alleged crimes potentially falling within the jurisdiction of the International Criminal Court (“ICC” or “the Court”), I have decided to open a preliminary examination into each situation.
The preliminary examination of the situation in the Philippines will analyse 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. Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.
The preliminary examination of the situation in Venezuela will analyse crimes allegedly committed in this State Party since at least April 2017, in the context of demonstrations and related political unrest. In particular, it has been alleged that State security forces frequently used excessive force to disperse and put down demonstrations, and arrested and detained thousands of actual or perceived members of the opposition, a number of whom would have been allegedly subjected to serious abuse and ill-treatment in detention. It has also been reported that some groups of protestors resorted to violent means, resulting in some members of security forces being injured or killed.
Under the Rome Statute, national jurisdictions have the primary responsibility to investigate and prosecute those responsible for international crimes. I emphasise that a preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute. Specifically, under article 53(1) of the Rome Statute, I, as Prosecutor, must consider issues of jurisdiction, admissibility and the interests of justice in making this determination.
In conformity with the complementarity principle, which is a cornerstone of the Rome Statute legal system, and within the framework of each preliminary examination, my Office will be engaging with the national authorities concerned with a view to discussing and assessing any relevant investigation and prosecution at the national level.
In the independent and impartial exercise of its mandate, my Office will also give consideration to all submissions and views conveyed to it during the course of each preliminary examination, strictly guided by the requirements of the Rome Statute.
There are no statutory timelines on the length of a preliminary examination. Depending on the facts and circumstances of each situation, I will decide whether to initiate an investigation, subject to judicial review as appropriate; continue to collect information to establish a sufficient factual and legal basis to render a determination; or decline to initiate an investigation if there is no reasonable basis to proceed.
I reiterate that my Office undertakes this work with full independence and impartiality in accordance with its mandate and the applicable legal instruments of the Court. As we do, we hope to count on the full engagement of the relevant national authorities in the Philippines and Venezuela.
DFA Statement: On the request of the Office of the ICC Prosecutor to open an investigation on the situation in the Philippines
The Philippine Government finds deeply regrettable the announcement of the outgoing Prosecutor of the International Criminal Court to seek judicial authorization to proceed with an investigation of the Situation in the Philippines.
The Philippine Government wishes to underscore that the Inter-Agency Review Panel headed by the Secretary of Justice was established to reinvestigate cases involving fatalities in the campaign against illegal drugs, and said Panel is continuing its work, and should be allowed to finish such work.
The International Criminal Court is a court of last resort. The States Parties to the Rome Statute envisioned a court with a complementary, not primary, jurisdiction for the prosecution of the persons most responsible for the most serious crimes of international concern. 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 Philippine Government has taken concrete and progressive steps to address concerns in the conduct of the anti-illegal drugs campaign and has recently finalized with the UN a Joint Program on Human Rights.
All these affirm the Philippines’ adherence to human rights norms and its long track record of constructive engagement with international and regional partners in human rights promotion and protection.
The midnight announcement by the current Prosecutor on the eve of her end of term also preempts the prerogative of her successor to make a full evaluation of the cases that he will prosecute. By her act, the outgoing Prosecutor likewise undercuts the attractiveness of the Rome Statute to States that may be considering accession.
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