President Rodrigo Duterte, who is on the last year of his six-year term, will possibly face an investigation into his alleged crime against humanity of murder in the conduct of the war on drugs.

Recently retired International Criminal Court (ICC) Prosecutor Fatou Bensouda announced on June 14 that the office has sought judicial authorization to conduct an investigation on the said allegation. The request came after it finished its preliminary examination which started on February 8, 2018.  

The office concluded that there is a “reasonable basis” to believe that the crime has been committed in the country from at least July 1, 2016 to March 16, 2019.

“The available information indicates that members of the Philippine National Police (PNP), and others acting in concert with them, have unlawfully killed between several thousand and tens of thousands of civilians during that time,” read the statement of Bensouda.

The prosecutor’s office has also requested to include the events in the city and region of Davao from 2011 to 2016 after determining striking similarities in the killings by the same types of actors since 1988, when Duterte became mayor of the city.

However, Presidential Spokesperson Harry Roque said Duterte will never cooperate with the “legally erroneous–politically motivated” probe as the country is no longer a member of the ICC. 

The Philippines withdrew from the Rome Statute of the ICC, the treaty which created the court, on March 17, 2019, after the ICC started the preliminary examination into the war on drugs. However, the prosecution stated that the court has jurisdiction over the alleged crimes up until March 16, 2019 since the country was still a member state then.

This step is a “moment of hope” for the victims of the administration’s relentless war on drugs, said Agnes Callamard, Amnesty International’s secretary general, in a statement. This brings hope for groups and victims in holding the government accountable for its continuing vicious counternarcotics and even counterinsurgency campaigns.

Continued Crackdown on Drugs

The ICC has started its victim representation process ahead of a decision on whether the investigation will be approved. Victims have until August 13 to submit their views, concerns, and expectations on the prosecutor’s request for the consideration of ICC judges.

“It’s possible that in the Philippine situation, we will have far more than what so far has been the largest number of victims in an ICC case,” said Ruben Carranza, an international human rights lawyer and senior expert at the International Center for Transitional Justice, during a forum organized by the UP College of Law. 

While this is a step closer for the drug war victims’ fight for justice, this may put them and the witnesses at risk for intimidation and harassment. In 2014, Bensouda withdrew charges against President Uhuru Kenyatta on alleged crimes against humanity committed during the 2007 to 2008 post-election violence in Kenya. 

The refusal of the Kenyan government to cooperate in the investigation and harassment, intimidation, threats against, and killings of witnesses resulted in the lack of evidence and the eventual withdrawal of the case.

Carranza noted how this is a “be careful what you wish for” situation because there is a possibility of risking the lives of victims and witnesses, especially since this is not only a war on drugs but a “war on the poor.”

During his 2016 presidential campaign, Duterte promised that he will end the country’s drug problem in six months. He then repeatedly ordered the police to kill drug suspects when he assumed office. However, fast forward to 2021, he admitted that “the drug problem is a never-ending one.”

Prior to the pandemic, law enforcement units have already killed 5,601 individuals from July 1, 2016 to January 31, 2020, according to the Philippine Drug Enforcement Agency (PDEA). Authorities claimed that they were forced to shoot suspects who allegedly fought back or “nanlaban.”

The number of “drug war” killings increased by over 50 percent when the government imposed lockdowns due to the COVID-19 pandemic from April to July 2020, per the Human Rights Watch World Report 2021. 

As of April 30, 2021, the PDEA has reported that a total of around 200,000 anti-illegal drug operations have already been conducted with almost 300,000 persons arrested and 6,117 persons killed. 

Meanwhile, the Commission on Human Rights (CHR) estimated that more than 27,000 may have been killed including those killed by unidentified gunmen without due process. 

It is difficult to come up with an accurate number of “drug war” killings due to the lack of transparency from government agencies and their refusal to disclose related documents, the Office of the High Commissioner for Human Rights (OHCHR) stated in its report in 2020.

Intensified Crackdown on Dissent

Rights groups who have consistently condemned Duterte’s blatant disregard for human rights in his anti-drug campaign found themselves on the receiving end of the government’s violence in an attempt to stifle dissent. 

A total of 376 extra-judicial civil and political killings, 196 of which are rights defenders, have been documented from July 2016 to December 2020, in the 2020 year-end report of Karapatan. Around 3,600 illegal arrests and over 100,000 cases of threats, harassment, and intimidation against critics have also been recorded.

Kilusang Magbubukid ng Pilipinas (KMP), together with peasant women group AMIHAN, submitted their latest documentation of peasant human rights violations (HRVs) at the CHR on May 7. From January to May of this year, KMP has documented 43 HRVs against farmers and fisherfolk. 

Among the violations the KMP documented include extrajudicial killings, illegal arrest, detention, and trumped-up charges, harassment and intimidation incidents, red-tagging, bombings, and militarization of peasant communities.

Youth groups, who have also been a target of the government’s counterinsurgency campaign, filed complaints composed of documented attacks against the government at the CHR and National Bureau of Investigation on May 21. They submitted evidence of recent red-tagging, threats, and harassment against youth leaders, activists, and campus journalists.

HRVs against ordinary citizens intensified since state forces are given the license to do so, Philip Jamilla, public information officer of rights group Karapatan, said. 

“May escalation ng violence, ng harassment, and judicial harassment, in particular, kasi nandiyan na nga yung whole-of-nation approach ng National Task Force to End Local Communist Armed Conflict (NTF-ELCAC), where the entire government machinery is being, not only weaponized but, mobilized for state repression.”

The NTF-ELCAC and its many spokespersons have consistently red-tagged, not only legal organizations and activists, but even ordinary individuals as communist terrorists. In April, they maliciously linked the organizers of community pantries to communist insurgents.

“It’s a dangerous pretext na may crackdown ka na on dissent, mayroon ka pang active campaign laban sa pandemic na wine-weaponize mo to violate people’s rights and civil liberties,” Jamilla said.

Red-tagging poses a serious threat to civil society as there are cases of red-tagged individuals who were threatened and even killed, according to the OHCHR. The recent series of simultaneous crackdowns against activists prove this true.

The “Bloody Sunday” in Southern Tagalog on March 7 resulted in the extrajudicial killings of nine and the arrest of six activists. This happened two days after Duterte ordered state forces to “ignore human rights” to kill communist insurgents. The PNP claimed that the victims were members of the New People’s Army (NPA).

Another series of similar raids were also conducted in Bicol on May 2 which resulted in the arrest of Dan Balucio, a pastor of the National Council of Churches in the Philippines (NCCP) and secretary general of Bagong Alyansang Makabayan (Bayan), and Sasah Sta. Rosa, spokesperson for Jovenes Anakbayan. NCCP, Bayan, and Anakbayan have been red-tagged by the administration several times as communist terrorist fronts.

Police also raided the home of Justine Mesias, senior editor of college publication Cassipi Online of Bicol University and Youth Act Now Against Tyranny Bicol spokesperson, but he was not around when the incident happened. Operatives allegedly found a gun and an explosive after a two-hour search.

Mesias was red-tagged as a member of the NPA by the Masbate City Police Station on its Facebook page prior to the raid.

Like the arrests of activists before, those nabbed during the “Bloody Sunday'' and Bicol raids were charged with illegal possession of firearms and explosives, a nonbailable offense.

Patterned Crackdown

The recent cases of arrests and killings show a pattern of the weaponization of the law for state repression, Jamilla said. This pattern used against activists is similar to the pattern observed by the administration’s infamous war on drugs since the same perpetrators are the main actors—military and police.

This prompted rights groups and HRV victims to submit a letter urging the Supreme Court to take urgent actions to protect human rights defenders and groups, victims, and their lawyers, May 18. As a response, the high court is making revisions on the issuance of search and arrest warrants considering the need to adapt to changing times, said Chief Justice Alexander Gesmundo on June 11.

“From the administration of President Gloria Macapagal-Arroyo to the present, the Philippine government, particularly the Executive Branch and its security forces from the Armed Forces of the Philippines and the Philippine National Police, have engaged in a ‘dirty war’ against unarmed activists,” part of the letter read.

From the CALABARZON and Bicol raids alone, an unmistakable pattern is observed. Activists or progressive individuals and organizations, mainly, are first publicly vilified and red-tagged, online or offline, as communist fronts or terrorists without basis. Red-tagged individuals are then subjected to attacks under the guise of counterinsurgency and counterterrorism.

Judges then issue search warrants which are “mostly based on the same set of evidence and suspiciously similar narratives from shady informants,” read part of the letter. Rights groups have consistently claimed that state forces planted the “recovered” evidence.

In its report, the OHCHR found that “police repeatedly recovered guns bearing the same serial numbers from different victims in different locations” during raids on private households in Metro Manila between August 2016 and June 2017, indicating that the evidence may have been “recycled.”

In the letter submitted to the court, signatories underscored that over the past two years, there is a disturbing trend of serial applications and approvals of search warrants which have been weaponized to harass, arrest, and kill activists.

On March 1, Court Administrator Jose Midas Marquez reported that the Manila Regional Trial Court received 63 applications for search warrants, of which 42 were granted. This caused rights groups to raise concerns about the existence of “warrant factories” in the judicial branch.

“Ginagamit na ngayon yung judiciary to churn out search warrants without preliminary investigations in order for the police and military to conduct raids na may legal cover yung ginagawa nila,” Jamilla said. “The emerging pattern is, along with the search warrants, nandiyan din yung paggamit ng tokhang-style tactic such as the planting of evidence, or worse, pinapatay yung nire-raid.”

The passage of the Anti-Terrorism Act (ATA) further legalizes these attacks on dissenters. While the oral arguments concluded on May 17, the law, which has been in effect for a year now, continues to be a threat since the Supreme Court has still not issued a temporary restraining order. This is especially true for the 19 individuals designated as terrorists by the Anti-Terror Council (ATC) on May 13.

The designation is virtually a death warrant for the people named on the list, Jamilla said. “May danger yung ganitong public terror-tagging. Ito na talaga yung concrete red-tagging na may legal pretext na siya na under ATA yung pagtatawag sa’yo ng terorista, hindi na lang basta statement.”

An escalation of human rights abuses and intensified violence, repression, and harassment are expected especially with less than a year left in Duterte’s term, Jamilla said.

“We are anticipating that, unfortunately, na dadami pa yung ganitong raids, dadami pa yung ganitong arrests if our courts do not take a stand in preventing these from happening. Nandun yung assertion namin again sa courts to establish protective mechanisms and to strengthen protective writs and other safeguards.” ●