THE International Criminal Court (ICC) appeals chamber has granted the request seeking the resumption of investigation on the killings in the Philippines related to the controversial drug war of former President Rodrigo Duterte.
Three out of five ICC judges rejected the appeal of the Philippine government where it argued that the ICC cannot exercise jurisdiction over the Philippine situation because it has withdrawn membership from the Rome Statute.
“The Majority considered that this issue was not properly raised before the Pre-Trial Chamber and that the Impugned Decision does not constitute a ‘decision with respect to jurisdiction’,” the court said.
“The Majority also found that the Philippines failed to show instances in which the Pre-Trial Chamber allegedly applied the wrong admissibility threshold or standard and that, given its conclusion on the Philippines’ inactivity with regard to the relevant crimes, it was correct for the Pre-Trial Chamber not to consider the issue of the Philippines’ willingness and ability to investigate,” it added.
This decision of the ICC has left the Philippines without any more recourse for further appeal.
Prosecutor Karim Khan, who will continue the probe, may seek issuance of arrest warrants or summons against various individuals behind the drug war depending on the evidence he will be able to gather.
Justice Secretary Jesus Crispin Remulla earlier said that the country will not comply with issuances of the ICC, including arrest warrants.
On June 14, 2021, then outgoing ICC prosecutor Fatou Bensouda asked ICC judges for an approval for the conduct of an official investigation on the alleged crime against humanity or murder in the country covering the period of November 1, 2011 to March 16, 2019.
Duterte was the mayor of Davao City from 2011 before he was elected as president of the Republic in 2016.
The former administration said the move to probe the drug war was politically motivated.
From July 2016 to May 31, 6,252 individuals were killed in the drug war, which was launched when Duterte took office.
Duterte ordered the withdrawal of the Philippine’s membership to the Rome Statute, which established the ICC, in March 2019.
Families of drug war victims, as well as various human rights groups in the country welcomed the ICC decision to resume the probe in the country.
Lawyer Gilbert Andres, the executive director of the CenterLaw Philippines, which represents some of the families of alleged drug war victims, particularly from the “hard-hit areas in Metro Manila,” said the ICC decision is a “major step towards justice.”
“This ICC decision is also a sobering warning that a State cannot simply escape ICC jurisdiction by its mere withdrawal from the Rome Statute. Ultimately, impunity does not pay even in withdrawal,” he said.
Andres urged the administration of President Ferdinand Marcos Jr. to cooperate with the ICC probe.
Marcos earlier maintained that the ICC has no jurisdiction over the country, noting that such a probe may be considered intrusion into the country’s internal matters and a threat to its sovereignty.
“So no, I do not see what their jurisdiction is. I feel that we have in our police, in our judiciary, a good system. We do not need assistance from any outside entity,” he said.
The President said he cannot cooperate with the ICC as long as the questions of jurisdiction and the probe’s effect on the sovereignty of the Philippines “are sufficiently answered.”
Human rights alliance Karapatan said in a statement that it is high time that the ICC investigation proceeds without a hitch so that the victims of Duterte’s bloody anti-drug war can finally tread the road toward justice and accountability.
“There is urgent need for international mechanisms such as the ICC to come in because all domestic investigation mechanisms presented by the Duterte and the current Marcos regimes in response to calls for justice and accountability are ineffective and only meant to window-dress the current dire human rights situation,” it said.
In a news conference, British lawyer Sarah Bafadhel who serves as counsel of the Solicitor General said there are more available legal remedies the Philippine government could use especially by invoking the issue on jurisdiction.
“The main opportunity would be in the event that the prosecution did issue an arrest warrant, name a specific suspect, and put 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,” she said.
“Of course, there are other channels. One that I would think of right now is that there may be some sort of engagement with the prosecution, but the prosecution may also acknowledge that because if the court does not have jurisdiction, then there will be little purpose to continue (the probe),” she added.
The Office of the Solicitor General expressed disappointment over the ICC appeals chamber decision, saying it refused to recognize the Philippine Government’s sovereign right to investigate serious crimes “in derogation of the complementarity principle so fundamental to the working of the international criminal justice system of the ICC forms part.”
Senator Ronald “Bato” Dela Rosa, the lead implementer of the drug war during his stint as chief of the Philippine National Police (PNP) under the Duterte administration, said he will protect himself from any arrest, which may be ordered by the ICC.
Senate President Juan Miguel Zubiri said they will not give up Dela Rosa unless there is a warrant of arrest issued against him by a local court.
Dela Rosa, however, expressed confidence that the ICC will see nothing in its investigation.
He said he was not concerned or bothered by the ICC decision.
“Hanapin nila ako. I am within the territorial jurisdiction of the Philippines. Kung mahanap nila ako, ang next step arestuhin nila ako, kung maaresto nila ako,” said Dela Rosa.
Dela Rosa said days before the ICC decision was released, he had a phone conversation with Duterte where they briefly discussed the matter.
“Tumawa man lang siya. Sabi niya walang patutunguhan yan. [He told me] You don’t need to unduly stress yourself,” he said. (SunStar Philippines)
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