INTERNATIONAL Criminal Court (ICC) Prosecutor Karim Khan has opposed the bid of the Philippine government in its appeal to stop the resumption of the international body’s investigation into the alleged killings and other excesses related to the Duterte administration’s violent crackdown on illegal drugs.
In his 59-page submission dated April 4. Khan told the ICC that the Philippine government failed to show any error in the Pre-Trial Chamber’s (PTC) decision allowing the investigation to continue.
“It is submitted that the Philippines failed to show any error in the decision, let alone identify any error which materially affects the decision. Instead, the Pre-Trial Chamber 1 reasonably and correctly considered the materials submitted by the Philippines and correctly applied the law,” Khan said.
Reacting to Khan’s submission, Justice Secretary Jesus Crispin Remulla said: “We will not engage with the ICC anymore and we will not honor any inquiry or any trials that they want to conduct in Philippine territory or involving the country.”
Khan insisted that the PTC was correct in its finding that the ICC has jurisdiction over the alleged crimes committed in the Philippines despite Manila’s withdrawal from the Rome Statute that created the court in 2019.
He reiterated the Philippines was still a party to the Statute when the alleged abuses and extrajudicial killings were carried out by the police in pursuit of the drug campaign of former President Rodrigo Duterte.
Khan said the scope of the probe covers alleged crimes from November 1, 2011 to March 16, 2019.
Manila’s withdrawal from the Statute took effect on March 17, 2019.
“In all cases, the Court’s jurisdictional assessment must relate to the period that the Court seeks to investigate, namely, when the alleged crimes happened. While this period may extend to the time when the Court decides to open an investigation, it need not,” Khan argued.
“That the Philippines was not a state party when the investigation was opened on September 15, 2021 is immaterial and does not deprive the Court of jurisdiction over crimes allegedly committed during the temporal scope of the investigation,” he added.
Khan also said the Philippine government “misinterpreted” the PTC’s decision when it argued that the ICC cannot compel it to cooperate since it is no longer a state party to the Rome Statute.
He stressed the PTC did not rule that the Philippines is obliged to cooperate as cooperation is not a jurisdictional precondition to start an investigation.
Simply stated, Khan says Manila’s refusal to cooperate with the ICC does not deprive the tribunal of jurisdiction over a situation it is investigating as he pointed out that it has not been uncommon for other states to not cooperate with the tribunal and “yet this has not deprived the Court of its jurisdiction.”
By becoming a party to the Rome Statute, Khan pointed out the Philippines accepted the ICC’s jurisdiction and that “if crimes were found to be committed on its territory and if it did not conduct genuine investigation, the Court’s jurisdiction could be triggered.”
Khan also refuted the Philippine government’s claim that it was his office which should bear the burden of proof that there is no basis for the deferral of the investigation, adding that it is the latter which moved for deferral of the probe.
But regardless of whether his office or the Philippine government bore the burden of proof, the PTC has “ensured that the Philippines had full opportunity to make observations on the law and facts presented to the Chamber by the Prosecutor, and the Philippines availed itself of this opportunity.”
Khan also noted the deficiencies in the list of probes conducted by the Philippine government through its law enforcement agencies such as the National Bureau of Investigation (NBI) and the PNP- IAS.
He likewise pointed out that the Philippine government is raising, for the first time, that there is a “formal mandatory progression” from PNP-IAS to DOJ panel to NBI.
The PTC earlier found the PNP- IAS probes did not lead to criminal investigation and prosecution.
Khan said that of the 266 cases submitted to the PTC, only four appeared to have “resulted in some form of investigation or prosecution before having been dismissed by domestic institutions.”
“The Chamber was neither incorrect nor unreasonable in concluding that the investigations of low-ranking individuals did not constitute sufficient tangible, concrete, and progressive steps towards this goal,” Khan said.
Lastly, he said it was also not clear if the Philippine government exerted efforts to probe the potential links between criminal incidents and of higher authorities condoning such acts.
“To the contrary, they are extremely serious, and appear to have been at the very least encouraged and condoned by high-level government officials, up to and including the former President,” he said referring to Duterte, whose harsh rhetoric against those involved in the narcotics trade was criticized by human rights groups encouraged the abuses and killing of individuals tagged as being involved in the illegal activity.
Meanwhile, as to Manila’s claim that the situation was not grave enough, not widespread, or systemic enough to warrant an ICC probe, Khan enumerated the thousands of crimes allegedly committed under the drug war ranging from killings to planting of evidence to murder and torture.
