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ICC's Prosecutor Takes Final Bow

Nine years after she was sworn in, International Criminal Court chief prosecutor Fatou Bensouda ended her term last week with one final, striking mark on Southeast Asia. In a damning, 57-page request for judicial investigation, Bensouda wrote that there was reasonable basis to form a crimes against humanity case in the Philippines’ ‘war on drugs’.

‘Following a thorough preliminary examination process, the available information indicates that members of the Philippine National Police, and others acting in concert with them, have unlawfully killed between several thousand and tens of thousands of civilians during that time,’ Prosecutor Bensouda, said in a statement released last Monday.

If judges decide to take up the case, something rights lawyers believe to be a distinct possibility, it will prove a rare chance of justice for countless grieving families. ‘It’s 3am and I feel like crying. For the dead I’ve seen and their kin I tried to comfort. Thank you ICC,’ tweeted Raquel Fortun, a forensic pathologist who has autopsied countless victims of the drug war and been outspoken about the evidence that they were murdered extrajudicially.

Bensouda’s request names President Rodrigo Duterte along with several others, and makes repeated mention of the similarities between the war on drug killings and those carried out in the late 1980s by the ‘Davao death squad’ when Duterte was Davao City mayor.

Duterte, who publicly called for drug addicts to be killed on multiple occasions, has shown little interest in efforts to investigate or punish those complicit. The Philippines announced it was pulling out of the ICC in 2018, shortly after Bensouda opened her examination. After last week’s announcement, a spokesman said the Philippines would not participate in an investigation as it was not a court member. But in her request, Bensouda argues that the court still has jurisdiction—as the Philippines was indeed a member during the years that the investigation covers.

The prosecutor has a history of savvy legal manoeuvres around the question of jurisdiction. Most famously in Southeast Asia, judges agreed to allow her office to open a probe into possible crimes against humanity committed against the Rohingya. Though Myanmar is not a state party to the ICC, Bangladesh is, and Bensouda in 2019 successfully convinced the court that investigations into the enforced cross-border deportations of hundreds of thousands fell under its purview.

As anyone who has watched the Khmer Rouge tribunal in Cambodia can attest, in few places do the wheels of justice grind more slowly than in international justice. Even if the court accepts Bensouda’s final request, it is unlikely to leave a mark on the Philippines, let alone Duterte and his brutal policies, anytime soon. But for some, the solace of seeing a loved one’s murder classed as such may bring a peace of its own.

© 2021 Mekong Review

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