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Drug  war killings probe urged

By Creselda Canda-Lopez

"Not a single killing that occurred between 1 November 2011 and 30 June 2016 in Davao was included among 52 cases allegedly investigated," Free Legal Assistance Group (FLAG) Chair Jose Manuel "Chel" Diokno urged the International Criminal Court (ICC) Prosecutor Karim Khan to resume its probe on drug war killings in the Philippines, two days after the international tribunal's prosecutor announced temporarily suspending the probe due to Philippine government's request.

In a letter Sunday, FLAG asked ICC to "immediately lift  suspension of investigation into situation in the Philippines," casting doubt on the probe the Philippine authorities are conducting.

Among "investigations" Philippine government cited in its request is the drug war review of the Department of Justice, which recently released results of its review of 52 cases forwarded to it by the Philippine National Police's Internal Affairs Service (PNP-IAS).

It found some of the suspects sustained multiple gunshot wounds and most cases lacked proper documentation while only a handful of police officers were dismissed from service. 

No criminal charges had so far been filed five years since the start of the blood anti-drug campaign.

FLAG pointed out that scope of DOJ's investigation covers only a small fraction of the killings or attempted killings that ICC will be investigating.

"Of the 52 cases allegedly investigated by DOJ, only 36 occurred within 1 July 2016 and 16 March 2019, the period covered by the ICC investigation. ..this figure is but 0.12% to 0.3% of the 12,000 to 30,000 persons killed during the period," FLAG said, noting that while DOJ is also looking into an additional 300 cases, the parameters, scope and results of its review have yet to be disclosed in public.

FLAG even went to the extent of questioning whether  DOJ drug war review can be called an investigation at all.

"In FLAG's view, it is misleading to label  DOJ actions as an 'investigation' since it appears that  DOJ merely conducted  review of  documents provided by the Internal Affairs Service of the Philippine National Police (IAS/PNP), FLAG said.

The DOJ matrix, according to the group, did not confirm  documents nor identify who were responsible for the killings. 

Neither did it identify the failure by police authorities to prevent killings, nor zero in on the policies and systematic failures that may have contributed to the failures.

The group also noted DOJ was silent on the penalties imposed by PNP-IAS with only 4 cases resulting in dismissal of the police officers involved while the rest mostly were meted out suspensions ranging from 22 to 180 days.

"The DOJ 'investigation' did not include any findings or conclusions, but mere 'observations,' largely on the lack or paucity of documents provided by the IAS/PNP…witnesses or survivors were not interviewed; family members did not participate in the DOJ 'investigation,' contrary to the requisites of the Minnesota Protocol," FLAG said.

"Even worse, not a single case was referred for prosecution… DOJ promised, through its press release, that it 'referred the same to the National Bureau of Investigation…these cases are to undergo further investigation and case buildup for possible filing of criminal charges against erring police officers…DOJ did not make public any instructions, parameters, guidelines, or even  deadline for the so-called investigation and case buildup by the National Bureau of Investigation," FLAG explained.

The group also accused DOJ review of placing burden of proof on victims,heirs of those killed instead of on the law enforcers to prove that drug suspects allegedly fought back or "nanlaban," supposedly violating Philippine laws and jurisprudence.

"The DOJ 'investigation' also contravenes Philippine laws which require  PNP and DOJ to immediately prosecute erring police officers whenever police officer invokes official duties as an excuse to kill  suspected criminal," FLAG added.

Various other human rights and lawyers' groups have criticized Philippine government's decision to seek  deferment of ICC probe.

Human Rights Watch said  Philippine government's claim that it is investigating drug war killings is "barely true" while  National Union of Peoples' Lawyers said it is nothing but an "attempt at white-washing its blood soaked flagship program."

"Kulang na kulang,..walang kaso doon sa singkwenta'y dos na doon sa mga hotspot o sentro ng Tokhang…karamihan ay sa probinsya, dalawa lang ang nangyari sa NCR and in fact wala raw sa Bulacan... paano mo naman pagkakatiwalaan ang ganoong review?" NUPL's Krissy Conti said of the DOJ's review.

Center Law, on the other hand, called the DOJ review "paper-thin."

"If you look at the letter, there's no reference to any investigation with respect to crimes against humanity for murder with respect to the war on drugs," CenterLaw executive director Gilbert Andres claimed.

"And if you look at, in fact, the matrix that was publicized by Department of Justice in September, you will clearly show there that  investigations are not with respect to crimes against humanity…it's with respect to administrative liability…and we know that at most, administrative liability will only mean separation, termination from service, but not criminal sentence," he said.

Andres pointed out that crimes against humanity is a crime in the Philippines under Republic Act 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity" but there's no investigation on this aspect.

"So the question really is, what kind of investigation is being undertaken by the Philippines..because when we say 'crimes against humanity,' it means that there is a widespread or systematic attack against  civilian population and then it's part of a national policy," Andres said.

"These 52 cases or investigations…does it really investigate  PNP chain of command or civilian authority…and the clear answer, based on the deferral letter, is no," he added.

Human rights groups have always insisted Philippine investigations must include President Rodrigo Duterte himself, whom they accuse of being behind  alleged state policy of killings.

Former senator Antonio Trillanes IV, one of the first ones who filed  communication with  ICC clarified  ICC prosecutor's decision to suspend its probe is only part of "due process."

He added that by asking for deferral of  ICC probe,  Philippine government is, in fact, recognizing  jurisdiction of ICC over the Philippines.

Andres echoed this view but he also pointed out  Philippine government is combining two very different concepts ,jurisdiction and admissibility. 

"Jurisdiction just means ICC has jurisdiction as to time, jurisdiction as to the crime, jurisdiction as to the persons…admissibility is  totally different thing because  ICC may have jurisdiction but the situation is not admissible because the state party is investigating it," he said.

"Meaning to say, the legal theory of the Philippines is legally erroneous because they're trying to conflate two different concepts into one…they're actually referring to complementarity as a principle," he explained.

The complementarity principle means  ICC will step in and exercise its jurisdiction if  state is unable or unwilling to genuinely investigate or prosecute crimes within  jurisdiction of the ICC such as war crimes, genocide and crimes against humanity.

Malacanang over the weekend  insisted still not recognizing ICC's jurisdiction over the Philippines.

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