Manila (CNN Philippines Life) — While news of the Philippines’ withdrawal from the International Criminal Court (ICC) made headlines, the actual withdrawal was quite uneventful. Foreign affairs secretary Teddy Locsin, Jr. announced it through a tweet on March 16, 2018. The withdrawal took effect one year later. As of today, the country is de facto no longer a member of the ICC.
Not many are familiar with the ICC or its workings. But for the victims of extrajudicial killings in the administration’s war on drugs, it represents one of the many channels by which they can secure justice.
The ICC is an international organization and court, and tries four main crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. When a State is unable and unwilling to resolve cases related to these matters, the ICC functions as a court of last resort.
Generally, only parties to the Rome Statute — an instrument signed by countries to signify their acceptance of the ICC’s jurisdiction — can be subject to the court’s processes. The Philippines’ withdrawal of its consent to the Statute means one less mechanism by which to hold the administration accountable for its alleged failures in upholding human rights.
But there are ways forward, if only for the thousands of families left behind by the killings. “The challenge goes beyond our membership in the ICC,” according to human rights commissioner Roberto Cadiz, in a forum organized by the Legal Network for Truthful Elections (Lente), youth collective Disgruntled Young People (DYP), and writers-artists group Sandata to discuss possible next steps after the Philippines’ withdrawal from the ICC.
The consensus was clear: while the Philippines has ceased to be a party to an important human rights instrument, the work to seek justice for victims of the drug war continues, in the following suggested ways.
There is no organized mass movement that represents the families affected by the drug war. “Kailangang mag-organisa ang mga biktima. Kailangang makita ang mga mukha ng mga biktima,” says Romel Bagares, senior consultant of the Center for International Law. Bagares is also the lead counsel of the Philippine Coalition for the ICC, and previously petitioned against the withdrawal from the ICC.
Bagares pointed out the need to organize — in consolidating efforts, empowering victims of the war on drugs, documenting their experiences, and ensuring that their cases see their day in court. This is easier said than done, however, since many victims fear reprisals for their testimonials, and will require strategic protection. Another concern is livelihood: many of those affected are from the poor and marginalized, and organizing takes up time and money.
Many victims fear reprisals for their testimonials, and will require strategic protection. Another concern is livelihood: many of those affected are from the poor and marginalized, and organizing takes up time and money.
A good starting point is to determine current services and efforts related to the campaign against drugs. One such attempt was launched in 2018 through angpangako.net, an online platform mapping 1) services and efforts, 2) rehabilitation centers, and 3) victims of the campaign against drugs. The website is an initiative of the Foundation for Media Alternatives.
The end goal should be to put the victim’s stories at the forefront of the fight to seek justice for the killings. “Let’s stop talking and start doing things,” says Bagares. “Let’s start making things happen. Because we’ve been talking for the last two years and it has gotten us nowhere.”
There are two views to the Philippines’ exit from the ICC: one view states that prosecutor Fatou Besouda’s pending investigation on the drug war continues despite the withdrawal; the other states it cannot. There are strong legal arguments for both views, according to Emil Marañon III, an election lawyer who also works in transitional justice.
In both instances, building the volume of cases of extra-judicial killings filed before the court is crucial. Assuming the pending investigation continues, determining whether the Philippines is “unable and unwilling” to resolve drug-related cases depends on the number of cases filed, according to Dr. Aurora Parong, co-chairperson of the Philippine Coalition for the ICC.
Being “unable and unwilling” to resolve cases, says Bagares, simply refers to court “inaction — even though there is a theoretical capacity to do so.”
Assuming the pending investigation is invalid, litigating before the courts still provides a case for a “crime against humanity,” which has been posited as an offense of such gravity that does not need membership in the ICC to be recognized.
Most importantly, building cases — the act of recounting experience alone, when conducted safely and with sensitivity to victims’ needs — can help foster understanding, raise awareness, and bring forth solidarity among the community.
What cases should be filed? According to Marañon, victims of the drug campaign have options under the Revised Penal Code; the Anti-Torture Act (RA 9745); the Anti-Enforced or Involuntary Disappearance Act (RA 10353); and the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (RA 9851). The latter, in fact, is the law that ‘localized’ the Rome Statute, and is still applicable despite the exit from the ICC.
Foreign courts may also provide redress: in the U.S., one can sue under the Alien Torts Claims Act, and in the U.K., one can sue under the International Criminal Court Act. A full list of States with statutes punishing crimes against humanity is found here.
The biggest challenge, however, is making all of this happen. Litigation is expensive, and building one case alone takes thousands of pesos. Building a case where witnesses may be unwilling to testify or where documentation may be missing is also deeply challenging, according to Bagares — thus emphasizing further the need to organize and coordinate with other concerned groups.
Aside from filing cases in local courts, Parong recommends exhausting all options, including filing administrative cases against erring officers, transmitting communications to UN human rights mechanisms and treaty bodies, reporting to the UN Human Rights Council, and maximizing transitional justice mechanisms. Ad hoc international criminal tribunals are also another venue, according to Marañon.
Sandata, one of the co-organizers of the forum, is comprised of activist rappers BLKD and Calix; playwright and screenwriter Mixkaela Villalon; and development workers and researchers Tanya Quijano, Abbey Pangilinan, and Ica Fernandez. It is a collective organized “as a response to the growing trend of social media-led disinformation and the brutal Philippine drug war.”
Villalon, Pangilinan, and Fernandez previously wrote about barangay officials making tough choices in the drug war, while BLKD and Calix produce hip-hop and rap music critical of the drug war, as heard in the recent EP “Kolateral: Buelo.” The first track, “Makinarya,” is a haunting four-part piece representing four actors involved in the drug war: the president, his government officials/mouthpieces, police officers — the final piece is of the families of victims, represented only by crying sounds.
Parong encourages young artists and writers to spread awareness of issues, such as extra-judicial killings in the drug war, in similarly creative ways.
The key is to reach out and mobilize, even beyond the scope of the drug war. “Seek out people’s organizations, groups, individuals, and State officials abroad for solidarity work,” she says, “not only about the killings or the war on drugs, but on broader issues such as bad governance.”