The impact of Bensouda’s request

Justice is finally on its way to knock at the house of impunity.

International Criminal Court (ICC) chief prosecutor Fatou Bensouda announced last week that that there is reasonable basis to believe that murders have been committed in the Philippines in the context of the government’s drug war. She has formally requested that ICC judges grant her office the authority to conduct a full investigation.

Stalwarts of the current administration took turns attacking Bensouda, branding her request as erroneous and “politically motivated,” and declaring that the Philippine government will never cooperate in the investigation. Still, no matter how the Duterte administration tries to put up a brave face, and despite efforts to belittle the looming investigation, there is little doubt that the government is anxious and worried.

Even if the officials who will be the focus of investigation have not been named yet, even if the issuance of warrants of arrest is still uncertain, and even if a decision to hold a trial may still be far off in the horizon, Bensouda’s request will have a huge impact on the subsequent behavior and decisions of public officials concerned.

First, the Bensouda request will disturb the peace of mind of anyone who has had any crucial participation in the drug war. It will cause continuing anxiety, even bouts of sleepless nights, because the Sword of Damocles will be hanging over their heads. The worry and stress will not just be the result of the threats of arrest and imprisonment. It will also be the consequence of the shame associated with being subjected to a potential international criminal prosecution, the expenses in hiring and consulting lawyers, and the self-imposed restrictions on foreign travel because of the fear of getting arrested abroad.

Second, the Bensouda request will hold a lot of weight in President Duterte’s choice of his successor. A sympathetic successor can put a lot of roadblocks on the conduct of any investigation, on the willingness of witnesses to testify, and on the implementation of any warrant of arrest. A hostile successor can remove all such roadblocks, and grant full access to the ICC to exercise its powers.

Third, institutions engaged in the administration of justice, such as the Department of Justice (DOJ), the Philippine National Police (PNP), the Ombudsman, and even the judiciary, will be on the spotlight on how they handled, are handling, or will handle the investigations, prosecution, and trial of cases connected with the drug war. The ruling government is harping on “complementarity,” which is essentially an argument that the ICC cannot step in and exercise its secondary jurisdiction because Philippine courts are willing and able to prosecute the alleged drug war crimes.

Very recently, the DOJ made a request with the PNP for access to police records in connection with what it represents as its ongoing investigation on 5,655 police antidrug operations that resulted in deaths. The PNP responded by granting the request, but with respect only to 53 cases. But why is the DOJ making a request in the first place when, under the law, each policeman involved in an operation resulting in death is under obligation to immediately submit to prosecutors all the relevant records? It will also be interesting to find out how the Supreme Court will factor in these developments in the ICC when it resolves the pending cases that question the government’s conduct of the drug war.

Fourth, the Bensouda request will affect the current drug war operations which continue to result in deaths. While the death incidents that are under ICC jurisdiction will only be those that happened before March 17, 2019, the date when the Philippine withdrawal from the ICC became effective, any continuing killings will put the spotlight on the involved police officials, especially their involvement in deaths in prior years.

If Bensouda’s request for a full investigation is granted and the case goes to trial, the perpetrators of the drug war will have their day in court. But it will be the stories of the thousands of victims that will finally be heard.

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