The decision by the chief prosecutor of the International Criminal Court in The Hague to launch a preliminary examination of the so-called war on drugs in the Philippines, opens a new chapter for the controversial court, which has never before considered a case in East Asia.
For of the 11 cases the ICC now has under investigation or prosecution, only one is non-African -- in Georgia.
But in a region where very few countries have ratified the Rome Statute that recognizes the court's jurisdiction -- only the Philippines and Cambodia have done so in Southeast Asia -- the chances of ending the prevailing culture of impunity in Manila look slim. That said, the court's decision will have ramifications in the Philippines and possibly the wider region as well.
In her statement earlier this month, ICC Chief Prosecutor Fatou Bensouda referred to allegations that thousands of people in the Philippines have been killed since July 2016 "for reasons related to their alleged involvement in illegal drug use or dealing." She added that "it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations."
The move follows many reports over the past 18 months by investigative journalists that show men carrying guns moving around the poorer neighborhoods of Manila and leaving a grisly trail of death in their wake. The victims, mostly poor slum dwellers, were pictured slumped in pools of blood where they were shot, sometimes in the act of eating meals; yet the police have always maintained they were killed after being challenged and producing weapons.
The numbers are disputed. The police claim there are fewer than 4,000 deaths associated with the war on drugs, which President Rodrigo Duterte has vowed to continue. Human Rights Watch, an advocacy organization based in New York, has alleged the death toll is as high as 12,000.
The court's preliminary soundings will want to look at whether crimes against humanity have been committed. Under the Rome Statute, which governs what the court can pursue, the definition is specific: "murder as part of a widespread or systematic attack directed against any civilian population." The examination will also consider the issue of complementarity: Is the national justice system able and willing to investigate and prosecute?
According to Priscilla Hayner, an expert on transitional justice and author of a new book, "The Peacemakers Paradox: Pursuing Justice in the Shadow of Conflict," the ICC has made clear in other cases (such as Colombia) that low-level prosecutions are not sufficient if there is evidence of high-level complicity or direction.
In this regard, Duterte at first said he was willing to submit to justice. "Go ahead and proceed in your investigation," he said defiantly after the ICC announcement. "Find me guilty, of course. You can do that." Later, he defiantly vowed to cancel accession to the Rome Statute, which he alleges has not been fully ratified. Alarmingly, Duterte also argued that local laws do not specifically outlaw extra-judicial killings.
When contacted, the country's beleaguered national human rights commission said that it would do what it could to support the court's probe. But how much can the court actually do to bring a case -- and who would be in the dock?
Duterte himself has openly admitted to carrying out extra-judicial killings during his tenure as the hard-charging Mayor of Davao. But it is most likely his muscular police chief Ronald dela Rosa who could be in the immediate firing line. He has described efforts to bring murder charges against serving officers accused of drug war killings as "legal harassment," according to Human Rights Watch.
Such high-level bravado goes down well in the Philippines. For despite the outcry from human rights activists, the war on drugs remains a palpably popular policy. Duterte's overall popularity is higher than 80%, according to reliable polls, and despite mounting concerns in the Catholic Church about the drug war killings, at least eight out of 10 Filipinos continued to endorse the war on drugs in the last quarter of 2017.
The ICC's intervention is awkward for the Philippines, which has in the recent past embraced the norms and values underpinning the jurisdiction of international courts. The outgoing Benigno Aquino administration endorsed an international arbitration panel's ruling on Philippine sovereignty over islands in the South China Sea -- also based in The Hague. Duterte chose to shelve the ruling in the interests of better relations with China but did not reject it out of hand.
Yet set in the regional context, the ICC's probe will set off alarm bells in countries like Indonesia and Myanmar which have been accused of crimes against humanity. Neither country is a party to the Rome Statute, but they could face investigations should the United Nations Security Council refer specific cases to the court in The Hague. Recent cases brought against Sudan and Libya were the result of U.N. Security Council referrals.
The most likely target will be Myanmar, for in the wake of the forced exodus of more than 690,000 Muslim Rohingya from Northern Rakhine State since August last year, allegations have surfaced that civilian militia aided by the Myanmar army participated in the killings that could be defined as crimes against humanity. Some activists believe they can circumvent Myanmar's non-accession to the Rome Statute by animating concern in the U.N. Security Council, where there have already been several attempts to pass a resolution on the issue.
Yet for much broader geopolitical reasons, it might well be too late for the ICC to be entering the fray in Southeast Asia. International concerns about gross human rights abuse have been diluted by equal concerns about the region's changing geopolitical alignment. Many countries in the West fear that insisting on accountability will push countries like Myanmar and the Philippines further into the arms of China.
Even if the ICC fails to launch a full-fledged investigation into the war on drugs, it does not mean the perpetrators are safe. For ultimately the Philippines has a history of at least trying to punish its leaders for past misdeeds. Two former Presidents were hauled up on charges of economic crimes after leaving office, though their convictions were overturned and they were eventually freed. The mercurial Duterte, who has a knack for gauging public sentiment, may well decide that the war on drugs no longer serves his interests, in which case scapegoats will doubtless be found.
Michael Vatikiotis is Asia director of the Centre for Humanitarian Dialogue.