International Criminal Court

PH asks ICC to suspend probe into drug war killings under Duterte

Jairo Bolledo

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PH asks ICC to suspend probe into drug war killings under Duterte
(2nd UPDATE) The formal appeal comes more than a month after the Philippines initially appealed the International Criminal Court's decision to resume the probe

MANILA, Philippines – The Philippine government, through the Office of the Solicitor General (OSG), sent its appeal brief to the International Criminal Court’s (ICC) Appeals Chamber, urging the body to suspend its probe into drug war killings in the country.

In the appeal brief dated March 13, the OSG, the government’s primary legal counsel, reiterated its request and provided reasons why the probe should be suspended. The Philippines claimed the ICC prosecution’s furtherance of the probe would lack legal foundation and “encroach on the
sovereignty of the Republic of the Philippines.”

The Philippines also claimed that if the ICC proceeds without jurisdictional basis, “its mandate would be adversely affected due to the implications such acts would have for those affected by the Court’s operations, in particular suspects, witnesses and victims.”

Aside from the suspension of the probe, the Philippine government specifically asked the chamber to grant suspensive effect until the resolution of its appeal. It also asked the body to declare that the ICC prosecution is not authorized to resume the probe.

The appeal brief centered on the claim that the Philippines has already withdrawn from the Rome Statute and that the ICC has no jurisdiction over the Philippines. The brief also said that even assuming that jurisdiction is present, the country’s “efforts were not fully credited and its offer to maintain cooperation was unreasonably cut short.”

On February 8, the Philippine government initially appealed the ICC’s decision to resume the probe into drug-related killings under former president Rodrigo Duterte. The appeal brief contained the Philippine government’s detailed arguments.

In late January, the ICC pre-trial chamber (PTC) gave its nod to the resumption of the probe into the killings. This included deaths related to the Davao Death Squad and the bloody drug war – both under Duterte.

ICC Prosecutor Karim Khan, on multiple occasions, expressed dissatisfaction over the Philippines’ intervention in the killings. In fact, Khan requested the PTC twice to reopen the probe.

On jurisdiction, Khan earlier said there’s nothing in the Rome Statute that states the Philippines can “challenge the resumption of an investigation on jurisdictional or gravity grounds at this stage of proceedings.”

Article 127 of the Rome Statute also states that all proceedings prior to the withdrawal of a country remain valid. The Philippines’ very own Supreme Court holds the same position and said the country is obliged to cooperate with the ICC.

Philippines’ arguments

The Philippine government claimed the PTC erred in law after it decided that the ICC could exercise jurisdiction over the Philippines. The PTC’s decision was based on the country still being a signatory to the Rome Statute at the time the alleged crimes occurred. 

The Philippines also assailed the ICC’s position that the country’s obligations under the Statute remain valid even after withdrawal. 

Disputing the ICC’s jurisdiction, the Philippines said the proceedings of the ICC prosecution were conducted without input or intervention from the country. 

“This is the first opportunity that the Philippine Government has to address the consequences of its withdrawal from the Rome Statute and the residual scope of the Court’s jurisdiction, or lack thereof,” the appeal read. 

Scrutiny of appeals is needed, according to the Philippines, because it goes to the fundamental question of whether any of the ICC proceedings can continue without jurisdiction – after the country had withdrawn from the Statute. 

The appeal brief also refuted the ICC position that the Philippines still has obligations under the Rome Statute, saying this is “inherently flawed and conflates principles concerning preconditions to the exercise of jurisdiction.” The country also argued that the prosecution only triggered the ICC’s jurisdiction in May 2021, while the Philippines’ withdrawal from the Statute had already taken effect on March 17, 2019. 

Since Article 127 of the Rome Statute states that all proceedings before the withdrawal remain valid, all the alleged crimes committed before the Philippine withdrawal took effect in 2019 fall within the jurisdiction of the ICC.  

The Philippine government even cited the case of the Republic of Burundi, pointing out that the African country was still a state party when the ICC probe formally started. 

In its website, the ICC said it had jurisdiction over crimes in Burundi from December 1, 2004 to October 26, 2017 – the period Burundi was still a member state. Applying this to the Philippine context, the alleged crimes committed between August 30, 2011 (date of ratification) and March 17, 2019 (withdrawal) still fall under the ICC’s jurisdiction. 

More errors? 

According to the Philippines’ appeal brief, the PTC also erred when it failed to apply the burden of proof on the prosecution.

“As the moving party, the Prosecution bore the burden of proof to establish that the deferral request was not genuine in order for it to resume its investigations. The failure to apply the burden of proof on the proper party vitiates the entire analysis in the Impugned Decision,” the Philippine government argued. 

The country also raised concern over the case lists submitted by the Philippine government to the ICC, which said “case lists are not, by themselves, sufficient to substantiate concrete or ongoing investigation steps.” Khan earlier called the intervention by the Department of Justice a mere “desk review.” 

The Philippines also claimed that the PTC ignored its probe into people possibly involved in the killings. 

Yet in reality, justice has remained elusive for drug war victims. Since 2016, or when Duterte’s drug war started, there have been only three significant convictions in high-profile drug war cases: one for Kian delos Santos (cops were convicted in 2018), and another for Carl Angelo Arnaiz and Reynaldo “Kulot” de Guzman, (cops were only convicted in 2022 of torture and planting of evidence).

On the same day the Philippines sent its formal appeal to the ICC, dismissed Patrolman Jefrey Perez was found guilty of murdering Arnaiz and De Guzman. The court took six years to decide on the case. –

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Jairo Bolledo

Jairo Bolledo is a multimedia reporter at Rappler covering justice, police, and crime.