LONDON, England – The International Criminal Court (ICC) appeals chamber may have allowed the investigation into the drug war and the alleged Davao Death Squad (DDS) to continue, but its latest ruling was also a technical one that leaves options open for the Philippine government to challenge down the road.

“It’s a long way to go, we might still face challenges to jurisdiction and admissibility,” said Kristina Conti on Tuesday, July 18, when she briefed the relatives of the drug war victims after the ICC appeals chamber issued its decision.

The ICC appeals chamber on Tuesday decided 3-2 to reject the appeal filed by the Ferdinand Marcos Jr. government to stop the investigation, effectively allowing the prosecution to continue the probe into the high killings in Duterte’s war on drugs and the DDS. But the decision, 77 pages long, with a dissenting opinion by two judges, was a technical one that, according to even the victims’ lawyer, could be a “cue” for the government’s next steps.

While the Office of the Solicitor General admitted it was “disappointed” with the decision, its external counsel Sarah Bafadhel, a British barrister, told the press Tuesday: “The government would still be able to intervene and assert that the court does not have jurisdiction and that would be another appropriate time to assert its sovereign rights and to limit the court’s ability and reach in that respect.”

How did that happen?

It’s important to remember that at this point, there have been two pre-trial chamber decisions. The first was in September 2021 when the pre-trial chamber authorized the opening of the investigation, upon the request of retired prosecutor Fatou Bensouda. Then the Philippine government in the last months of Rodrigo Duterte’s term found a Rome Statute clause that allowed them to ask for a deferral. By procedure, the new prosecutor, Karim Khan, had to pause.

By late 2022, Khan arrived at the same conclusion as Bensouda and asked to reopen the investigation. The pre-trial chamber made a second decision in January 2023 to reopen the investigation. It is this January 2023 decision that the Marcos government, particularly Solicitor General Menardo Guevarra, appealed.

What did they appeal? That the ICC had no jurisdiction because:

1. The Philippines’ withdrawal from the Rome Statute meant that the ICC lost its jurisdiction over the country
2. That there is complementarity because the Philippines is able and willing to investigate its own problems
3. That the pre-trial chamber cannot conduct the “same person, same conduct” test in determining whether there is complementarity (More on this later in the story)

The latest ruling rejected the appeal and upheld the pre-trial chamber, but the judges made a very important caveat: “Thus, while the Pre-Trial Chamber addressed the issue of jurisdiction in general terms, the Impugned Decision is not a decision on jurisdiction.”

ICC Spokesperson Fadi El Abdallah explained to Rappler in an interview Tuesday that the appeals chamber cannot rule on jurisdiction because the second pre-trial chamber decision, the one being reviewed, was not a jurisdiction case. “There are some other technicalities related to that, but that’s, in a nutshell, the issue of why the majority considered that it did not need to rule on the jurisdiction now, because it was not in the decision that is the object of the appeal.”

Simply said, the latest ruling does not categorically declare whether the Philippine government was totally correct or totally wrong in its arguments on jurisdiction. It simply cannot answer questions that were asked at the wrong time. More favorably for the government, the latest ruling said that the second pre-trial chamber decision was not “a positive finding of jurisdiction.”

Moreover, the two dissenting opinions by Presiding Judge Marc Perrin de Brichambaut and Judge Gocha Lordkipanidze answered the first question of the Philippine appeal in favor of the government, saying that the withdrawal has taken away the jurisdiction.

That is why Bafadhel said that there would be an opportunity later on to raise these facts.

“So if I was, for example, within the prosecution, I would be asking myself today, whether there is a route forward or whether the avenue has become far harder to navigate now with such a strong minority opinion and the fact that there was no positive finding on jurisdiction from any of the judges today,” said Bafadhel.

The victims win this time

Still though, there were things in the latest ruling that the victims’ side can also use in their favor. For example, on the main issue of jurisdiction, the appeals chamber said that when the Duterte government asked for a deferral in November 2021, “the Philippines implicitly accepted the Court’s jurisdiction.”

Asked if he now thinks deferral was a wrong strategy (it happened under Jose Calida’s time), Guevarra said: “No, we never accepted the court’s jurisdiction, whether expressly or impliedly, as we were very much aware that our withdrawal from the ICC had taken effect in 2019. We made it pretty clear that our continued engagement with the ICC was borne out of comity only and a shared commitment to end impunity.”

There were also parts of the ruling about complementarity that the victims can view positively.

Complementarity is a key feature of the Rome Statute and the ICC. The treaty ideally would promote that the country exercises its sovereign powers and solves its own problems. If the ICC sees that it is doing just that, that the country is “willing and able” to investigate, then it would step aside.

The Philippine government argued that the pre-trial chamber made a mistake in applying the “same person, same conduct” test on complementarity. The test requires that for the national investigation to pass as complementarity, it must mirror the prosecution’s own investigation, or that both must be looking at the same person and same conduct. Simply said, if the ICC was looking at high-ranking officials and a state policy of killing, the national investigation must be pursuing the same path.

The Philippine appeal said the “same person, same conduct” test is not a strict requirement, and therefore it was wrong to apply that test. However, the appeals chamber majority said the pre-trial chamber decision “correctly assessed whether there exists an advancing process of domestic investigations or prosecutions of the same groups or categories of individuals in relation to the relevant criminality within the situation which sufficiently mirrors the scope of the Prosecutor’s intended investigation.”

“The Majority finds that the Pre-Trial Chamber did not err in law [in applying that test],” said the latest ruling.

“The appeals chamber decision affirms the clear fact that the Philippine Government has not investigated the crimes against humanity committed under the Duterte War on Drugs,” is the interpretation of the Center for International Law (CenterLaw), a Philippine non-profit co-founded by Harry Roque, who is now lawyering for Duterte.

Both parties can use the decision to fit their own narrative. Bafadel said that “obviously this is a political decision.” CenterLaw said “there is no basis for the Philippine Government to insinuate that the ICC is driven by politics or out to usurp its sovereignty.”

What happens now?

Now, the victims and their families wait if Prosecutor Karim Khan will request for an arrest warrant or a summons.

“Well, at this stage, I think it has been just a short time that the prosecutor has been authorized by the pre-trial chamber to resume the investigations. The Office of the Prosecutor has to do its job, as I said, gathering all the evidence, analyzing it, trying to identify the possible suspects that might be highly responsible of certain crimes, and then submitting it to the judges,” El Abdallah told Rappler.

The possible issuance of an arrest warrant is also the potential next opportunity for the government to challenge the ICC’s jurisdiction, said Bafadhel.

“So really the main opportunity would be in the event that the prosecution did issue an arrest warrant and named a specific suspect and brought forward a concrete case, that the government under Article 19 of the Rome Statute has the right to intervene and ask for a decision on jurisdiction at that point, arguing and asserting that the court does not have jurisdiction,” Bafadhel said.

The Rome Statute is only 25 years old, and lawyers will admit that they themselves are still discovering new things about the treaty that they can use. Colombia, for example, was examined by the ICC for 21 years over potential crimes on both sides of a civil war, until a new government decided they would work with the prosecutor to more effectively investigate the crimes. Colombia set up its own peace tribunals, which led Khan to acknowledge complementarity and convinced him to close the examination.

Marcos, or succeeding Philippine presidents can theoretically do the same. Human Rights Watch deputy Asia director Bryony Lau said there is an opportunity for Marcos “to change course and break away from the culture of abuses and impunity that have long bedeviled the Philippines.

– Rappler.com