ICC junks PH plea to stop probe into deaths linked to war vs. drugs

The International Criminal Court in The Hague, The Netherlands (Photo from the ICC website)

MANILA, Philippines – The Appeals Chamber of the International Criminal Court (ICC) has denied the motion for reconsideration of Philippine government to stop the international body’s investigation into the war against illegal drugs launched by the Duterte administration.

The ruling today allowed the continuation of the probe that is looking into the drug-related killings during the term of former President Rodrigo Duterte.

“Philippine seeks a reversal of the impending decision… I would like to state that it is rejected by the appeals chamber by the majority,” the ruling stated. Presiding Judge March Perrin de Brichambaut announced the decision in open court at past 10am, the Hague time (4 p.m., Manila time.)

Representing the Philippine government is Ambassador to the Netherlands Eduardo Malaya and British lawyer Sarah Bafadhel, external lawyer of the Philippine government. ICC Special Prosecutor Karim Khan was also present.

Three out of the five judges decided to reject the appeal of the Marcos administration filed by Solicitor General Menardo Guevarra, arguing that the challenge to stop the resumption of the drug war probe was unclear.

On Jan. 26, 2023, the ICC Pre-Trial Chamber (PTC) granted Khan’s request to resume investigations into the war on drugs situation in the Philippines. The PTC granted the request citing the Philippines’ failure to undertake relevant investigations into the case.

On Feb. 3, 2023, the Philippine government filed a notice of appeal against the PTC’s authorization given to Khan. Then, on March 27, 2023, the appeals chamber rejected the request of the Philippines for a suspensive effect of the PTC’s decision pending ruling on their appeal.

OSG had argued that ICC lost jurisdiction over the case after Philippine government withdrew its membership from the organization in 2019 upon the directive of the former Chief Executive.

Khan believes that the Philippines was still part of the Statute (law) of ICC when the alleged abuses and reported extra-judicial killings were committed.
The investigation covers alleged crimes that happened from November 1, 2011 to March 16, 2019.

Philippines’ withdrawal took effect on March 17, 2019.

With the release of the verdict today, Khan’s investigation can now proceed.

He may go on gathering additional evidence or request the issuance of a summon or warrant of arrest.

Khan had noted of the 266 cases submitted to PTC, only four alleged incidents of abuses appeared to have “resulted in some form of investigation or prosecution before having been dismissed by Philippine domestic institutions.”

How the ICC ruled

On the question of jurisdiction, ICC Appeals Chamber said the ruling of PTC, which was the subject of Philippine government’s appeal, is a reiteration of a previous finding about the facts on war on drugs.

“The effect of the Philippines’ withdrawal and the court’s jurisdiction are not a positive finding of jurisdiction,” ICC declared.

Presiding Judge Marck Perrin de Brichambaut of France and Judge Gocha Lordkipanidze of Georgia dissented.

Voting in favor of rejecting Manila’s appeal are Judge Piotr Hofmanski of Poland, Judge Solomy Balungi Bossa of Uganda, and Judge Luz del Carmen Ibanez Carranza of Peru.

On the burden of proof, ICC said the responsibility lies on the State.

In this case, it is up to the Philippines to establish facts supporting its assertion that it had examined the alleged abuses.

“The burden of providing information relevant to the Pre-Trial Chamber’s determination remains on the State seeking deferral,” it said.

“The majority finds the Philippines has 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 having taken place,” ICC pointed out.

“Therefore, the majority rejects a second ground of appeal,” the chamber promulgated.

Real Numbers of the government showed that 6,200 drug suspects have been killed in police operations from June 2016 until November 2021. However, the figure is contracted by human rights advocates claiming that the actual death toll is over 12,000.

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