Probe to proceed into Duterte drug war killings, abuses
THE Appeals Chamber of the International Criminal Court (ICC) yesterday rejected the Philippine government’s appeal to stop its probe into the alleged killings and abuses committed by the administration of former President Duterte in the implementation of his bloody crackdown against illegal drugs.
Presiding Judge Marc Perrin de Brichambaut said three out of the five judges ruled to reject Manila’s appeal which was filed by Solicitor General Menardo Guevarra.
Guevarra had asked the ICC to reverse the Pre-Trial Chamber’s March 27 ruling that allowed ICC Special Prosecutor Karim Khan to resume his probe into the alleged drug war abuses.
Those who voted in favor of rejecting the Philippine government’s appeal are Judge Piotr Hofmanski of Poland, Judge Solomy Balungi Bossa of Uganda, and Judge Luz del Carmen Ibanez Carranza of Peru.
Brichambaut, who is a French national, and Judge Gocha Lordkipanidze of Georgia dissented from the ruling.
Brichambaut said the majority said Manila’s challenge to stop the resumption of the drug war probe was unclear.
“It (The appeal) is rejected by the appeals chamber by majority and the impugned decision is therefore confirmed,” he said, adding that the “majority finds that the pre-trial chamber did not err in law.”
During the promulgation, the Philippine government was represented by Philippine Ambassador to the Netherlands Eduardo Malaya and British lawyer Sarah Bafadhel, a British lawyer who was engaged by the Philippine government.
Khan was also present.
Guevarra on Sunday said that the Philippines could no longer file an appeal if the ICC rejects its plea. He also said the international court could indict certain individuals over killings in the drug war if there is sufficient evidence.
Justice Secretary Jesus Crispin Remulla said the country would not comply if the ICC issues an arrest warrant against individuals over killings in the drug war.
President Ferdinand Marcos Jr., have also earlier said the government will not cooperate with the ICC, insisting that the tribunal has no jurisdiction over the country.
Brichambaut said the Appeals Chamber’s 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,” he said.
He also said that the majority ruled that the issue of the impact of the Philippines’ withdrawal from the Rome Statute in 2019 was not properly raised before the pre-trial chamber.
But Brichambaut said he and Lordkipanidze did not agree with the majority that jurisdiction issue raised by the Philippines 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 be resolved as soon as possible, with the ICC ensuring that it has jurisdiction at the first opportunity.
The arguments raised by Brichambaut and Lordkipanidze theoretically gives the Philippines a small window of opportunity which it can use and argue in the future.
MAJORITY RULING
Brichambaut said all the grounds raised in Manila’s appeal brief were rejected by the Appeals Chamber’s majority.
He said majority of the judges dismissed the Philippines’ argument that the pre-trial chamber was wrong in reversing the prosecutor’s burden of proof.
“The information initially provided by the state (Philippines) 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 also said.
On the Philippine government’s position that the ICC should stop its probe because Manila is already investigating the alleged abuses, Brichambaut said that “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.”
“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 noted that the pre-trial chamber concluded that the Philippines was not investigating or that there had
been investigations or prosecutions into the supposed abuses.
With the Appeals Chamber’s ruling, Khan will now have the authority to resume his probe into Duterte’s drug war, including the supposed killings perpetrated by the so-called Davao Death Squad when the former president was still mayor of Davao City.
Khan’s team can also proceed to their next step, which could include gathering additional evidence or even requesting for the issuance of summonses or warrant of arrest.
Khan earlier asked the ICC to restart the probe, arguing that the Philippine government has not provided enough evidence to show that it was carrying out a thorough investigation on the drug war deaths and the existence of the alleged death squads.
THE APPEAL
In its appeal filed last March, Guevarra maintained that the ICC has no jurisdiction to probe the alleged killings and abuses as it already pulled out of the Rome Statute that created the ICC in 2019.
Guevarra also argued that there are conditions that should be met before the probe can resume such as a referral from the United Nations Security Council and or a motu proprio prosecutor investigation or an investigation of its own accord.
Prior to the assailed March 27 ruling, the ICC appeals chamber also allowed drug war victims and victim groups to comment on the petition of the Philippine government seeking a halt to the reopening of the inquiry into the drug war-related deaths.
Khan has argued that contrary to Manila’s position, the Philippines was still a party to the Rome Statute that created the ICC when the alleged abuses and extrajudicial killings related to Duterte’s crackdown on illegal drugs occurred.
He st ressed the scope of the probe covers alleged crimes from November 1, 2011 to March 16, 2019.
Manila’s withdrawal took effect on March 17, 2019.
In September 2021, the ICC approved a formal investigation into possible crimes against humanity allegedly committed under Duterte’s leadership, but it suspended its probe in November 2021 at the request of Manila which said it was carrying out its own investigations.
But in January this year, the court said it was “not satisfied that the Philippines is undertaking relevant investigations” and prosecutors resumed their inquiry. Manila appealed that decision in an attempt to further block the investigation.
DISAPPOINTED
In a statement, the Office of the Solicitor General expressed “disappointment” with the ICC ruling.
“The Office of the Solicitor General is disappointed in today’s judgment issued by the Appeals Chamber of the ICC. By a split 3-2 decision, the Appeals Chamber confirmed the impugned decision of Pre-Trial Chamber 1 to resume the investigation of 26 January 2023, and in effect, refused to recognize the Philippine government’s primary and sovereign right to investigate serious crimes, in derogation of the complimentarity principle so fundamental to the working of the international criminal justice system of which the ICC forms part of,” the statement said.
It added that the ICC should have respected Manila’s prerogative to conduct its own probe on the drug war deaths.
It said that contrary to criticisms that the government is not doing anything to probe the alleged cases, its submission to the Office of the ICC Special Prosecutor and the Pre-Trial Chamber “bears out the internal investigation and prosecution activities undertaken so far by the Government connected to the anti-illegal drug campaign.”
The OSG also raised the issue of jurisdiction, adding that while the chamber’s majority brushed aside Manila’s jurisdictional challenge, it has been raised properly in the Appeals Chamber because the Pre-Trial Chamber’s position on the issue is an integral part of the impugned decision.
“The established principle of international law dictates that the Court must satisfy itself of its own jurisdiction and this power to determine its own jurisdiction exist regardless of whether the Court is called upon to exercise this power or not,” the OSG added.
The OSG said “the Philippine Government will not be deterred by today’s outcome.”
For his part, Sen. Ronald dela Rosa said he and Duterte were unfazed with the decision of the ICC, raising anew the argument that the international court no longer has jurisdiction over the country following its withdrawal from the Rome Statute, which created the ICC.
In an interview, Dela Rosa said he does not mind what the ICC will do and it is up to that court to do what it pleases.
“Wala naman tayong magagawa kapag ituloy nila, hindi naman natin sila kontrolado. Hayaan mo na lang na gawin ang gusto nilang gawin. Nandito lang tayo (We cannot do anything about it since we do not have control over the ICC. Let them do what pleases them. I am just here),” Dela Rosa said.
He said he is also not threatened if a warrant for his arrest will be issued, noting that there will be no one in the country who will serve the arrest order since the government does not recognize the ICC anymore.
Dela Rosa said he will not go into hiding once any warrant is issued.
He said Sen. Francis Tolentino will still be his legal counsel in case he is arrested once he gets out of the country, which he said he is not planning to do.
“Para sigurado, Davao-Manila lang ako. Mahirap na wala tayong kuwan sa ibang bansa (To be sure, I will just stay in Davao and Manila. I cannot take chances),” he said.
He said he had the chance to talk to Duterte who also had the same reaction to the ICC decision.
“Tumatawa lang siya. Wala raw patutunguhan yan (He is just laughing it out because he knows it [the cases] will not go anywhere),” Dela Rosa said.
Dela Rosa said Remulla was right in saying that the Philippines will not abide with the ICC decision.
Khan acknowledged that he and his team face significant hurdles, especially if the ICC decides to issue summonses or warrants of arrest against Duterte and other personalities as it lacks its own police force and must rely on the cooperation of the countries involved to assist the arrest.
WELCOME DEVELOPMENT
Human rights groups lauded the ICC ruling, calling it the next step towards upholding justice for victims of the drug war and their families.
“The ICC appeals judges’ ruling marks the next step toward justice for victims of drug war killings and their families. (The) Marcos administration should back up its stated commitment to human rights and the fight against impunity by following through on its international legal obligation to cooperate with the court’s investigation,” Human Rights Watch Asia deputy director Bryony Lau said in a statement.
Rise UP, a group composed of drug war victims’ families, said they are ready to cooperate with the ICC investigation into the drug war killings.
“Today’s decision by the Appeals Chamber of the ICC built confidence with those victimized by the widespread and systematic killings under the “war on drugs” of the Duterte administration,” the group said in a separate statement.
With the ruling, the group said they are hopeful that they are closer to getting justice.
“They look forward to the ICC indicting the most responsible, the masterminds and administrators of a cruel and criminal government policy that targeted killing of thousands of people. From the bereavement of losing a love one.during a so-called “nanlaban” police operation or a “vigilante killings”, comes a deep desire for justice and accountability,” Rise UP added.
Government records showed that more than 6,000 drug suspects have been killed in police operations from June 2016 until November 2021. The numbers, though, have been contradicted by local and international human rights groups who claimed the actual death toll stands at around 12,000 to 30,000. — With Raymond Africa and Reuters
