PH notes errors in ICC ruling on drug probe, presses for reversal

March 17, 2023

The International Criminal Court (ICC) made “legal errors” in its decision to allow the resumption of its investigation into the Duterte administration’s controversial war on drugs and should reverse the ruling, the government said in its appeal brief filed on March 13.

“It is submitted that the Pre-Trial Chamber (PTC) committed several errors of law in its admissibility assessment concerning the Situation in the Republic of the Philippines,” the Office of the Solicitor General (OSG) stated, citing four main arguments to reject the Jan. 26 decision.

Once again, the government insisted in its petition before the ICC Appeals Chamber that the Netherlands-based court has no jurisdiction over alleged crimes against humanity related to the bloody campaign under the previous administration after the country effectively withdrew from the Rome Statute, which established the ICC, in March 2019.

This was over two years before former prosecutor Fatou Bensouda completed the preliminary examination and requested for permission to investigate the killings and other crimes in June 2021, the OSG pointed out. (See ICC Prosecutor requests for formal investigation of Duterte for crime against humanity)

In September, or three months later, the PTC authorized a probe into such alleged crimes as murder and enforced disappearances under the watch of former president Rodrigo Duterte from July 2016 to March 16, 2019 and the killings in the Davao region from Nov. 1, 2011 to June 2016.

“It is evident that as of 17 March 2019, there was no obligation on the Philippine Government to cooperate and as such, it would be impossible for the Court to exercise its jurisdiction over the Philippine Situation,” the government stated. “In this context, there is no reasonable basis to determine that preliminary examinations, which are potentially indefinite and encompass a broad range of activities undertaken by the Prosecution, can be considered as a ‘matter which was already under consideration by the Court.’”

Based on its arguments, the OSG asked the Appeals Chamber, a separate judicial branch that hears appeals on decisions on jurisdiction or admissibility, to suspend the resumption of the ICC probe until the country’s appeal is resolved.

The OSG described the ICC’s observation that the government failed to investigate senior state officials instead of low-ranking participants in the implementation of the bloody drug war “an unreasonable assessment” that does not allow the domestic legal process to progress.

It stated that in its decision to resume the ICC probe, the PTC did not properly consider the government’s willingness and ability to “genuinely” handle the investigation and claimed that it had provided materials requested by the prosecutor although it did not have to.

The OSG raised technical legal points against the PTC decision. It said that the Chamber failed to place the burden of proof on the prosecutor to continue the ICC probe, used incorrect approach to decide on the case, and did not “undertake a holistic assessment” of the Philippines’ investigation process.

In reaction to the appeal brief, Kristina Conti, counsel for Rise Up for Life and for Rights, a group of relatives and survivors of the drug war, described the government as hypocritical and ridiculous.

“It is appalling how the Solicitor General hides behind the legalese and reductive logic the horrific abuses and rights violations during the bloody ‘war on drugs’ of the former President,” she said.

Read the conclusion of the appeal brief here.

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VERA Files

VERA Files is a nonstock, nonprofit, independent media organization. Founded in March 2008, it is published by veteran Filipino journalists taking a deeper look into current Philippine issues. Vera is Latin for “true.”

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