[OPINION] The ICC investigation on the drug war: What civil society can do

On July 18, 2023, the International Criminal Court junked the Philippine government’s appeal to stop the ongoing investigation on the extrajudicial killings that accompanied the war on drugs in the Philippines, which took place from 2011 to 2019 while the Philippines was still a state party of the Rome Statue and covered by the jurisdiction of the International Criminal Court.

As a reaction to the adverse ruling, President Ferdinand Marcos Jr. has approved the recommendation of Solicitor General Meynardo Guevarra and Secretary of Justice Jesus Crispin Remulla not to cooperate with the ICC on the grounds that it does not have any jurisdiction over the Philippines and to preserve national sovereignty. The SOJ secretary vowed not to allow entry of ICC investigators. Should a warrant of arrest or summons be issued against those who are accused of committing murder and crimes against humanity, the government will not cooperate in serving these. Some members of the Senate and the House of Representatives have promised to protect those under investigation. 

The question is: what can civil society do in view of this obstruction of justice? The following are possible course of action: 

1. Promote the Supreme Court ruling published in July 2021 that declared that the government has the obligation to cooperate in the ICC judicial process that started when the Philippines was still part of the ICC. 

“Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate. Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated here. The Philippines remained covered and bound by the Rome Statute until March 17, 2019.” 

This ruling affirms the Rome Statute that states that withdrawal from the ICC does stop any investigation on crimes committed when the country was still part of the ICC. President Marcos Jr. should know, since he was a signatory when the Senate ratified membership of the ICC while he was still senator. The question of sovereignty cannot be used as an excuse not to cooperate with the ICC since this is part of the obligation to respect international treaties and agreements.

This is where civil society, especially legal luminaries and groups, can challenge the government’s position before the Supreme Court.

2. Pressure independent constitutional bodies such as the Commission on Human Rights and the Commission on Audit as well as the Supreme Court to cooperate in the investigation especially in releasing whatever records and documents they have available relevant to the investigation.

3. Continue gathering of evidence and documentation. This also means identifying and reaching out to witnesses who can give testimony and providing them with support and sanctuary. This requires setting up safe spaces where they can give testimony (inside and outside the country). This will include providing secure environment for ICC investigators when they enter the country.

4. Help provide support and protection to human rights defenders who are engage in documentation and taking care of witnesses.

5. Organize rallies and social media campaigns that will pressure government’s cooperation in the investigation and in serving warrants of arrest and summons. It would create an impact if families of victims of EJK are in the forefront of these rallies.

6. Initiate an international campaign that promote sanctions on the Philippine government should it ignore obligation to cooperate with the ICC. This includes a campaign against the renewal of the GSP plus status for Philippine imports to the European Union. Companies will be discouraged from investing in the Philippines since it cannot be trusted to respect international agreements and treaties. 

7. Challenge in court and through public opinion any attempt to use public funds to defend those accused before the International Criminal Court.

Cooperation with the ICC investigation should not just depend on President Ferdinand Marcos Jr.’s personal stand or that of the Department of Justice and the Office of the Solicitor General. They are bound by the ruling of the Supreme Court and the obligation of the Philippines to international treaties and agreements. Civil society has a big role to play in ensuring that that justice be done. – Rappler.com

Alphonsus P. Burgos is a human rights activist.