FLAG asks ICC to lift suspension on Philippine drug war probe

The Free Legal Assistance Group (FLAG) has asked the International Criminal Court (ICC) to lift the suspension of its probe on alleged crimes vs. humanity in the context of drug war killings under the Duterte administration.

In a letter to ICC prosecutor Karim Khan, FLAG, led by lawyer Jose Manuel "Chel" Diokno, cited the alleged failure of Philippine authorities to prosecute perpetrators as reason for their request. 

The group argued that the Department of Justice's review of 52 drug war killings -- of which 36 occurred within the period covered by ICC probe, or from July 1, 2016 to March 16, 2019 -- is not an investigation because it forms a miniscule part of the 12,000 to 30,000 killings allegedly linked to the drug war.

"The DOJ 'investigation' did not comment on the inconsequential penalties meted by the IAS/PNP (Internal Affairs Service/Philippine National Police). Of the 36 cases covered by the ICC investigation (number of victims unascertained), only four cases resulted in the dismissal from service of the erring officers," Diokno said.

Diokno said majority of the cases also resulted in a mere suspension of the officers ranging from 22 to 180 days, while one case led to a mere reprimand while one case was dismissed.

"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 contrary to the requisites of the Minnesota Protocol. Even worse, not a single case was referred for prosecution. The DOJ promised, through its press release, that it referred the same to the National Bureau of Investigation (NBI)," Diokno said.

He added that these cases are to undergo further investigation and case buildup for the possible filing of criminal charges against erring police officers.

"But DOJ did not make public any instructions, parameters, guidelines, or even a deadline for the so-called investigation and case buildup by the National Bureau of Investigation," Diokno said.

The ICC earlier suspended its investigation after the Philippine government, through Philippine Ambassador to Netherlands Eduardo Malaya, asked for deferral of the probe given the ongoing DOJ investigation.

Diokno, however, countered that the 2013 Supreme Court ruling in Aguilar v. DOJ, GR No. 197522 provides when the accused admits killing the victim but invokes a justifying circumstance, the constitutional presumption of innocence is effectively waived and the burden of proving the existence of such circumstance shifts to the accused.

"Whenever a law enforcement officer kills a person 'in self-defense,' claiming as in many cases of killings in the course of the 'war on drugs' that the officer retaliated because the victim fired at him/her ('nanlaban' or 'suspect fought back'), Philippine law and jurisprudence place the burden of proving that the killing was lawful upon these law enforcement officers," Diokno said. 

Yet, he added, the DOJ probe "instead placed the burden upon the victims and/or their heirs, contrary to Philippine law and jurisprudence." —KBK, GMA News