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No ICC ruling vs Duterte

First of 2 parts
THE Philippine Star* last week ran a front-page story headlined “ICC sees crimes against humanity in Philippines drug war.” Its lead read: “The International Criminal Court has found ‘reasonable basis’ to believe that crimes against humanity were committed in President Duterte’s war on drugs, which has reportedly killed over 20,000 people since 2016.” The next day, Duterte’s critics were ecstatic over the report, with the Philippine Daily Inquirer banner story screaming: “Drug War Critics on ICC Report: Reckoning Near.”

These are outright lies.

They are “journalism” of the most despicable kind: They spread false, fake news. (The Star article even used the “20,000” figure, which has been proven to be totally without basis, with the government’s figure of about 6,000 fatalities accepted by most.)

ICC did not say that!

The ICC did not say at all “it saw crimes against humanity in the country’s drug war.”
The International Criminal Court — the core of which consists of 18 judges in pretrial, trial and appellate chambers — had not concluded anything on the case brought against President Duterte and his officials. How could it? There has been no trial yet, not even a report by its Office of the Prosecutor to convene a trial. The case was filed by a former Davao City lawyer, Jude Sabio, in April 2017 (he withdrew it this year) and then pursued by former senator Antonio Trillanes 4th, helped according to him, by testimonies from Communist Party fronts.

That quote — there was a “reasonable basis to believe” in the accusations — was solely by its prosecutor Fatou Bensouda in her annual report for 2020. As her office does every year, it narrated the status of “situations” — the ICC term for complaints filed with it — in nine countries described in her Report on Preliminary Examination Activities 2020.

In fact in her presentation of her report on December 15, the Philippines’ case was described in just one sentence, that its “preliminary examination” has not been completed. She claimed it had been “impacted by Covid-19 epidemic,” a justification she didn’t give though for the other cases whose examination has not been completed.

Bensouda is not the ICC, just as a fiscal (or a prosecutor in the US) isn’t the Philippine system of courts, and definitely does not speak for it. In a manner of speaking, a prosecutor’s work is based on the idea that “an accused is guilty until proven innocent”; that of a court is an “accused is innocent until proven guilty.”

Drug lords

When my favorite Facebook friend, the very witty Fiscal Darwin Cañete, reports that he believes Leila de Lima received money from drug lords, since a witness testified to that, I completely believe him. But as a journalist I wouldn’t report that the Regional Trial Court where he presented that testimony as evidence that found de Lima guilty of corruption and connivance with drug lords. How difficult is it to understand that?

In her year-end report, Bensouda described the status of “situations” in several other countries other than the Philippines: Bolivia, Venezuela, Columbia, Guinea, Palestine, Iraq, Nigeria and Ukraine. She reported that her office completed preliminary examinations only in these last four “situations.” She dismissed the case in Iraq, involving allegations of abuse by British soldiers of Iraqi prisoners.

In the matter of the case against Duterte and his officials, Bensouda reported that her office has not completed its preliminary examination of it, the very first step to determine whether to proceed with an investigation or not.

She claimed she would complete this phase in the first half of the coming year.

Coincidentally, Bensouda ends her nine-year term in June 2021. To portray the workload of Bensouda’s office, between November 2016 and October 2020, her office had received 2,849 complaints. Most were dismissed and 158 “warranted further analysis.” It is obvious from these statistics that the complaint against Duterte, filed in April 2017, was able to cut the queue to be subject to preliminary examination — upon lobbying by influential personalities.


The “preliminary examination” step is the very first in the long process of an ICC criminal case, which involves after that formal investigation, determination of jurisdiction, pretrial investigation, trial and appellate trial. The last four of these are undertaken by “chambers” each consisting of three judges.

Courts, even the ICC, are bodies with their own procedures and language: Why don’t our media study these?

In contrast to the fact that the preliminary examination on the complaints against Duterte and his officials haven’t been completed, Bensouda reported that her office has finished the following cases, and will start formal investigation:

– War crimes by Israeli Defense Force against Palestinians in East Jerusalem and the Gaza Strip, preliminary examination of which started January 2015;

– Abuse of Iraqi war prisoners from 2003 to 2008 by British forces, examination of which started May 2014;

– Crimes against humanity starting 2009 committed by Boko Haram and the Nigerian Security Forces, examination of which started November 2010; and

– Violence against demonstrators by the government of Ukraine in 2013, examination that started in November 2013.

Note when the examinations started, from 2010 to 2014, or six or 10 years ago.  Don’t believe Bensouda’s claim that she’ll finish the preliminary examination next year.

The New York Times, the Washington Post, CNN and other major Western media outfits last week all reported the same fake news. The Times’ headline — written by a Filipino reporter, Jason Gutierrez, who lives here — reads, “The ICC finds evidence of crimes against humanity in the Philippines.” Why didn’t the Times report that the “ICC” findings against Israeli and British forces had been more solid, since preliminary investigations on these had been completed?

This again should remind Filipinos that US media often are as incompetent or as biased as several broadsheets here. They for instance peddled — successfully — the colossal lie that that Iraq had weapons of mass destruction, which justified America’s horrific war against that country. In this case, the fake news that “ICC saw crimes against humanity” in Duterte’s war on drugs fitted their view of a “murderous” Duterte — built by the lies by such people as Vice President Maria Leonor Robredo, Trillanes and Columbia University’s Sheila Coronel.

Question everything: Be vigilant to spot fake news, even if reported by supposedly reputable media outlets, as many of their people are still Yellow cultists, or just plain nincompoops.

*Philippine Star as well as TV5 is controlled by the Indonesian magnate Anthoni Salim through a pension fund in PLDT. The Manila Bulletin did not carry that alleged ICC report. This newspaper did, but reported in the same article the Palace spokesman’s counter, that “not all crimes can be tried at the ICC” and that it “has no jurisdiction over the President.”

On Wednesday: What this “ICC” boo-boo tells us

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