EJK Truth Commission Launched; Duterte ICC Trial Set for November

Activists backed by the Philippine Catholic Church on Wednesday launched an independent fact-finding body looking into drug-related extrajudicial killings (EJK) during the six-year reign of former President Rodrigo Duterte. The launch of the EJK Truth Commission came just hours ahead of an announcement from the International Criminal Court (ICC) that Duterte's trial is set to start in late November. The drug war, waged from 2016 to 2022, left as many as 30,000 people dead, according to human rights groups, and Duterte was later charged with crimes against humanity by the ICC.

The five-member EJK commission is expected to hold public hearings starting in July. Raul Pangalangan, a law professor who previously worked as a judge for the ICC, will serve as chairman. He said the commission "was created to ensure that the stories of victims, survivors and families are heard, verified and preserved." The bloody crackdown under Duterte "happened because everybody looked the other way," Pangalangan said, calling it "almost a conspiracy of silence." Cardinal Pablo Virgilio David, a bishop on the commission who will work as an adviser, said the inquiry is "long overdue" and that "ultimately, what we aspire for is healing, not only for the victims but also our institutions." The commission will make recommendations to the Office of the President, the Congress and the National Police Commission, and aims to investigate many of the thousands of police officers who took part in the crackdown and have not yet been brought to justice.

Duterte, 81, was arrested in the Philippines last year and brought to The Hague to face trial. The ICC said it will start its crimes against humanity trial against him on November 30. He faces charges over the anti-drug campaign during his presidency and over previous crackdowns staged while he served as mayor of Davao City. Duterte has rejected the charges, saying police only shot people on grounds of self-defense. He is being held in The Hague's detention center. His defense team had argued that Duterte is not mentally fit enough to follow the proceedings; he was subsequently found fit to take part in pre-trial proceedings.

Duterte will face the judges of the ICC Pre-Trial Chamber I (PTC I) for a confirmation of charges hearing and an annual hearing on the review of his detention, set for four days on Feb. 23, 24, 26 and 27. It remains unclear whether his participation will be physical or virtual, but he is expected to physically attend, pending approval of the defense's request for video conferencing. The hearings will take place before Presiding Judge Iulia Motoc, Judge Reine Adélaïde Sophie Alapini-Gansou and Judge María del Socorro Flores Liera. According to the ICC, the confirmation of charges hearing is to determine whether there is "sufficient evidence" to establish "substantial grounds to believe" that Duterte committed each of the crimes charged against him. Within 60 calendar days after the hearing, or by April 28, the judges will decide whether to confirm all or any of the charges.

There are three possible outcomes. If there is sufficient evidence to confirm the charges, Duterte will remain in detention to face a full trial that may lead to conviction or acquittal; a separate Trial Chamber would be constituted, and ICC trials may take an average of eight years. If there is insufficient evidence, the PTC I will stop the proceedings and could order Duterte's release, though the prosecution may appeal or ask for confirmation again with additional evidence. Alternatively, the PTC I may adjourn the hearing and request the prosecution to provide further evidence, conduct further investigations, or amend a charge; warrants for unconfirmed charges would cease, possibly leading to Duterte's release.

Duterte's lead counsel, Nicholas Kaufman, said the defense would refute the existence of drug war co-perpetrators, including Senators Ronald "Bato" Dela Rosa and Christopher "Bong" Go, at the pre-trial hearing. He said the defense would prove "completely lacking in truth" the alleged eight co-perpetrators, calling it "a legal fiction." Also named in the document containing charges were former PNP counterintelligence chief Vicente Danao; former Philippine Drug Enforcement Agency chief Isidro Lapeña; former NBI chief Dante Gierran; Oscar Albayalde, former regional director of the National Capital Region Police Office; the late Camilo Cascolan; and former Justice Secretary Vitaliano Aguirre. Kaufman said none of these co-perpetrators are currently subject to arrest warrants. He added that Duterte has been aware of the identities of the alleged co-perpetrators for almost a year and that the defense kept them confidential "as required by the court."

According to the Office of the Prosecutor (OTP), Duterte is charged with three counts of murder in connection with the killings of 78 suspected drug users and pushers from Nov. 1, 2011 to Mar. 16, 2019, covering his time as Davao City mayor and as president. The OTP alleged that Duterte committed these crimes as an indirect co-perpetrator through the creation of a common plan with at least eight other co-perpetrators to "neutralize" alleged criminals perceived to be involved in illegal drugs. The 15-page document signed by ICC Deputy Prosecutor Mame Mandiaye Niang stated that the Davao Death Squad "followed a similarly hierarchical structure with Duterte at the top," and that "Duterte's approval was required for DDS members to conduct killings in Davao City."