ICC denies PH gov’t appeal; will resume drug war probe

The International Criminal Court (ICC) Appeals Chamber on Tuesday denied the appeal of the Philippine government against the resumption of the investigation into the controversial war on drugs.

This was announced by Presiding Judge Marc Perrin de Brichambaut during an open court hearing in The Netherlands.

“Before I address the merits of the appeal, I would like to state that it is rejected by the Appeal Chamber by majority and that the impugned decision is, therefore, confirmed,” Brichambaut said.

Solicitor General Menardo Guevarra had said that the Philippines could no longer file an appeal with this decision.

Guevarra said the ICC could also indict certain individuals over killings in the drug war if there is sufficient evidence.

Justice Secretary Jesus Crispin Remulla, however, said the country would not comply if the ICC issued an arrest warrant against individuals over killings in the drug war.

Other Philippine officials, including President Ferdinand Marcos Jr., have said the government will not cooperate with the ICC, reiterating that the tribunal has no jurisdiction over the country.

Under the drug war, at least 6,200 suspects were killed in police operations based on government records. Human rights groups, however, claimed the actual death toll could be from 12,000 to 30,000.

The appeal

According to Brichambaut, all the grounds raised in the appeal brief filed by the Philippine government in March were rejected by the majority in the Appeals Chamber.

For its first ground, the Philippines said the pre-trial chamber erred in finding that the ICC could exercise its jurisdiction on the basis that the country was a state party despite its withdrawal from the Rome Statute.

However, the Appeals Chamber said its decision was not on jurisdiction.

“Contrary to the Philippines’ assertions, the findings of the pre-trial chamber, in particular those concerning the court’s jurisdiction over the present situation and the effect of the Philippines' withdrawal on the court’s jurisdiction are not a positive finding of jurisdiction that is inextricably linked to its admissibility ruling,” Brichambaut said.

“Rather, the pre-trial chamber simply recalled and re-affirmed its previous findings on jurisdiction made on its decision, authorizing the investigation under Article 15 of the [Rome] Statute,” he added.

The judge further said that the issue of the impact of the Philippines’ withdrawal from the ICC was not properly raised before the pre-trial chamber.

Meanwhile, the Appeals Chamber also dismissed the Philippines’ argument that the pre-trial chamber erred in reversing the prosecutor’s burden of proof in the context of Article 18 proceedings.

“The information initially provided by the state in support of a deferral request does not affect the allocation of the burden of the proof,” Brichambaut said.

“For the foregoing reasons, the majority finds that the Philippines failed to demonstrate that the pre-trial chamber erred in placing the onus on the Philippines to show that investigations or prosecutions are taking place or have taken place,” he added.

The government also said that the pre-trial chamber committed an error in its application of the legal standard applicable to a case overstating the degree of overlap in the Article 18 context, which invalidated the inadmissibility statement.

The Philippines also argued that the pre-trial chamber’s finding that it was not satisfied that the country is not making a real and genuine effort in its investigation is not based on actual assessment.

“The majority does not agree that the pre-trial chamber’s finding that no real or genuine effort was a finding on the Philippines’ willingness and ability to carry out investigations,” Brichambaut said.

“This finding of the pre-trial chamber should be viewed in light of the two-step approach that the pre-trial chamber applied, which requires it to assess the willingness and ability of the domestic authorities to genuinely carry out an investigation of prosecution, only if it first finds that there were ongoing or that there had been investigations or prosecutions,” he added.

He said the pre-trial chamber concluded that both questions were answered by the negative.

Meanwhile, the Appeals Chamber said the pre-trial chamber also considered the Philippines’ arguments on gravity and limited its arguments on points the country raised.

“The majority finds no error in the pre-trial chamber’s approach to only address those issues of gravity that the Philippines had actually raised before,” Brichambaut said.

However, Brichambaut and Judge Gocha Lordkipanidze said they did not agree with the majority that the first ground raised by the Philippines on jurisdiction was inadmissible.

“We are of the view that the first ground of the appeal is admissible and we would have considered it on the merits and we would have allowed it,” Brichambaut said in French.

“We are of the view that the Appeals Chamber has been properly seized of the exception of the lack of jurisdiction raised by the Philippines given that, first of all, the impugned decision does contain a finding on jurisdiction and secondly, the Philippines has correctly identified an error in this finding,” he added.

He said the issue of the ICC’s jurisdiction should also be resolved as soon as possible, with the ICC ensuring that it has jurisdiction at the first opportunity.

Timeline

Former President Rodrigo Duterte pulled the Philippines out of the ICC in 2019 after the tribunal began a preliminary probe into his administration’s drug war, followed by the launch of a formal inquiry later that year.

The probe was suspended in November 2021 after the Philippine government said it was re-examining several hundred cases of drug operations that led to deaths at the hands of police, hitmen, and vigilantes.

ICC prosecutor Karim Khan had asked to restart the inquiry, saying the Philippine government had not provided evidence it was carrying out thorough inquiries.

The ICC authorized the reopening of the inquiry in January 2023. — RSJ/VBL, GMA Integrated News