What the truth commission can investigate

A group of religious and civic society leaders have banded together to organize an investigative body that aims to address the inadequacies of both the International Criminal Court (ICC) and our national justice system in quenching the thirst for justice for victims of extrajudicial killings (EJKs) in the Duterte regime’s bloody drug war. An “EJK Truth Commission” was established last May 27 by a group led by Catholic Church Cardinal Pablo Virgilio David with the aim of documenting crimes committed during the so-called war on drugs.

In a sign that the five-member Truth Commission (TC) means serious business, former ICC Judge Raul Pangalangan was chosen, and he has agreed, to serve as its chair. The other members of the commission are forensic pathologist Dr. Raquel Fortun, Adamson University president Fr. Daniel Franklin Pilario, peace and conflict practitioner Dr. Al Fuertes, and journalist and human rights researcher Carlos Conde. Cardinal David serves as the TC’s adviser.

We will understand and appreciate the essentiality of a TC established by nonpolitical and private leaders if we list down the limitations of the ongoing ICC proceedings, and the inadequacies of our country’s justice system.

First, the ICC can only investigate the crimes committed between Nov. 1, 2011 and March 16, 2019, which was the period when the Philippines was an ICC member. The drug war crimes committed by then Davao City Mayor Rodrigo Duterte before Nov. 1, 2011, and those committed by him as Philippine president after March 16, 2019, are crimes which fall outside ICC jurisdiction that can be investigated instead by the TC to address the clamor for justice of victims’ families of those crimes.

Second, the ICC only prosecutes the “most responsible” perpetrators consisting of political or military leaders who planned, designed, and gave the orders to commit the drug war crimes. Only former President Duterte and Sen. Ronald “Bato” Dela Rosa are currently the subject of criminal prosecution or investigation before the ICC. If there are additional individuals who will be prosecuted by the ICC, it’s reasonable to expect that these will only be confined to the seven other co-perpetrators already identified and made public by the ICC. The TC can look into the criminal liabilities of the midlevel officers who implemented the orders to kill and low-level subordinates who pulled the trigger, some of whom were identified during the House of Representatives’ quad committee hearings.

Third, the crimes that are the subject of the current ICC prosecution and investigation are limited to crimes against humanity of murder and frustrated murder which are estimated to number 30,000 at the most. Far more numerous are the other drug war crimes, which include more than 300,000 victims of unlawful arrest and imprisonment, and many others who became victims of disappearances, sexual violence, and torture. The victims of all these other crimes can be the subject of the TC’s investigation and documentation.

Fourth, apart from the crimes and suspected criminals that the ICC cannot and will not investigate and prosecute, there’s also the issue that the current Philippine government has conceded that the door to domestic justice is permanently closed for victims of the Duterte extrajudicial killings because “those who need to speak are involved in the crime … there’s nothing, not even a police report. You don’t have a scene of the crime, you don’t have ballistics, you don’t have DNA,” as admitted by then Justice Secretary Jesus Crispin Remulla. The TC can overcome these hurdles because its purpose and objective are not exclusively to assign liability and it will be beyond its powers to impose penalties.

Fifth, the TC cannot be accused of political bias, unlike the Marcos administration whose every initiative to exact accountability against members of the Duterte camp are unavoidably branded as poisoned with vendetta because of the dynasty war between the Marcos and Duterte families.

Sixth, the TC will not be handicapped by the strictures of judicial procedures which oftentimes unfairly limit the participation of victims and witnesses who can contribute to the unraveling of the truth, in situations where the state either failed or refused to document the crimes. This is an advantage especially for the purpose of memorializing the crimes to give catharsis to the victims’ families, and to create a historical record of the massive violation of human rights.

Seventh, the TC can attain objectives that cannot be satisfied by the mere imposition of penalties and reparations. The cleansing of the names of the victims—that they were not drug addicts, murderers, rapists, or robbers—may be among the many other forms of justice that can assuage the victims’ families.

Finally, the TC can probe and expose the defects of our laws and procedures, the inadequacies of our public institutions, the vulnerabilities of our public officers, all with the aim of recommending fundamental policy changes to prevent the recurrence of reprehensibly violent periods in our country’s history.

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