Philippine President Rodrigo Duterte has retorted that his war on drugs “will not stop” despite the International Criminal Court’s investigation into extrajudicial killings related to the campaign. Is raising the profile of alleged crimes to the international level enough?

Last week, the Prosecutor at the International Criminal Court (ICC), Fatou Bensouda, announced that she was opening a preliminary investigation of the situation in the Philippines. According to Bensouda, the preliminary investigation will focus on alleged crimes committed “since at least 01 July 2016, in the context of the war on drugs campaign launched by the Government of the Philippines.” While not being specific, it is widely assumed that the prosecutor is concerned that aspects of the war on drugs constitute crimes against humanity as outlined in Article 7 of the Rome Statute.

Since assuming office in June 2016, Philippine President Rodrigo Duterte has had an acrimonious relationship with the ICC. Very early in his presidency, his war on drugs attracted the attention of the Office of the Prosecutor (OTP). While not mentioning Duterte by name, Bensouda’s statement concerning the situation in the Republic of the Philippines from October 2016 announced that the OTP was “aware of worrying reported extra-judicial killings of alleged drug dealers and users in the Philippines” and that “extra-judicial killings may fall under the jurisdiction of the ICC if they are committed as part of a widespread or systematic attack against a civilian population pursuant to a State policy to commit such an attack.”

As a state party to the ICC, Bensouda made it clear that “any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.”

Partly in response to the prosecutor’s statement, and partly as a reaction to Russia’s announcement it would withdraw its signature from the Rome Statute, Duterte announced in November 2016 his intention to withdraw the Philippines from the ICC. H noted that “if Russia and China want to form a new world order, the Philippines would be the first to join”. Duterte’s language was well-rehearsed: it draws on perceptions of the ICC as a tool of Western imperialism and a cornerstone of an imposed liberal world order. Unsurprisingly, Duterte has been contemptuous of a potential ICC investigation, dismissing the court as “bullshit” and describing European lawyers as having “a brain like a pea”.

Philippine Drug Enforcement Agency (PDEA) data indicates that police operations resulted in the deaths of 3,906 suspected drug users and dealers between 1 July 2016 and 26 September 2017. But, according to Human Rights Watch, unidentified gunmen have killed thousands more, bringing the total death toll to more than 12,000. Furthermore, Human Rights Watch argues that “masked gunmen taking part in killings appeared to be working closely with police, casting doubt on government claims that most killings have been committed by vigilantes or rival drug gangs.”

When considering the gravity of these allegations, it is somewhat surprising that a preliminary investigation was not launched sooner. Now that the ICC is on the case, it is worth exploring what a preliminary investigation means, the significance of the announcement, and what we might expect to happen next.

As Bensouda points out, a preliminary investigation is “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.” In bad news for those hoping for an investigation to be opened quickly, there are no statutory time limits on the length of a preliminary investigation.

If the cases of Afghanistan and Palestine are any indicator, it could be years before a formal investigation begins in the Philippines.

Assuming that all the procedural hurdles to initiate an investigation are overcome, the greatest impediment to successful prosecutions in relation to the Philippines situation would be the ICC’s reliance on support from the Philippines’ government to make its case. The ICC is not empowered to apprehend or compel the appearance of those it has indicted. As the situation in Kenya, and specifically the abandoned attempt to prosecute President Uhuru Kenyatta and former Deputy President William Ruto, demonstrate, the court not only has limited resources by which to conduct an investigation, but also has limited recourse in the face of a non-cooperative state. Although Duterte has announced that he would welcome the opportunity to defend himself at The Hague, he would, in all likelihood, attempt to thwart the ICC’s efforts at every opportunity.

Following the OTP’s statement, the Philippines’ Office of the Solicitor General (OSG) announced that the ICC has no jurisdiction over the government’s anti-drug campaign, saying that the ICC “may only exercise jurisdiction where domestic courts are incapable of carrying out the proper proceedings.” It is true that the ICC is a last-resort jurisdiction. Nonetheless, the prosecutor needs to be satisfied that domestic institutions are carrying out their own investigations in good faith. Duterte’s violent and barbaric rhetoric, combined with a lack of respect for an independent judiciary, means that the prosecutor should have no issue clearing the court’s complementarity hurdle.

Philippine government spokesperson Harry Roque has claimed that as head of state, Duterte is immune from prosecution (at least while he still holds office). Such claims, however, reflect a basic failure to acknowledge the momentous shift, of which the ICC has been a key contributor, away from the age-old norm of sovereign immunity for heads of state, towards a newly emerging norm where heads of state are no longer above the law.

The preliminary investigation into the situation in Philippines is not a panacea for documented crimes against humanity occurring in the country. Nonetheless, amongst all the hullabaloo, the ICC has done exactly what advocates of international criminal justice expect it to do. The preliminary investigation has raised the profile of Duterte’s alleged crimes to an international level, where it is hoped that the spectre of an ICC investigation will serve as a deterrent against further atrocities and, in turn, find justice for victims of the government’s crimes.

Dr Matt Killingsworth is a senior lecturer in international relations and head of politics and international relations at the University of Tasmania.

This article is published under a Creative Commons Licence and may be republished with attribution.