MANILA — The Philippine government has taken the first step in appealing an International Criminal Court Pre-Trial Chamber ruling authorizing the resumption of the probe on the deadly drug war of the previous administration and the alleged Davao Death Squad.
In a 5-page notice filed on Feb. 3, the government, led by Solicitor General Menardo Guevarra, told the ICC Appeals chamber it will file an appeal. The filing was confirmed by the official to reporters.
“The Appeal is directed against the whole decision,” the notice read.
“The relief being sought is a reversal of the decision and the denial of the OTP’s (Office of the Prosecutor) request to resume investigation regarding the Situation in the Republic of the Philippines,” it added.
The ICC Pre-Trial Chamber (PTC), in late January, authorized the resumption of the ICC prosecutor’s probe on the deaths connected to the drug war and the alleged Davao Death Squad, after it ruled that the international tribunal has jurisdiction over the Philippine situation and the argument on the gravity of the situation raised by the Philippine government can no longer be re-litigated.
The ICC PTC also found that the measures taken by the Philippine government “do not amount to tangible, concrete and progressive investigative steps being carried out with a view to conducting criminal proceedings, in a way that would sufficiently mirror the Court's investigation."
The government made clear it disagrees and rejects the ICC PTC’s ruling.
It sought instead for a “suspensive effect” so that the implementation of the ruling will be suspended pending final resolution of the appeal.
The notice of appeal was signed by Guevarra and five assistant solicitors general.
“We filed a notice of appeal with the Appeals Chamber of the ICC last February 3, challenging the entire decision of the Pre-Trial Chamber authorizing the resumption of investigation into the Philippine situation. This will be followed by the filing of our appeal brief before the end of this month,” Guevarra said in a text message to reporters.
Under ICC rules, the Philippine government has 21 days from the notification of the decision to file an appeal brief laying out its reasons opposing the resumption, and the ICC Prosecutor has another 21 days from notification of appeal brief to file a response, according to experts from Human Rights Watch.
It could take four months before the ICC Appeals Chamber could rule on the matter, counted from the filing of the response to the appeal brief.
Guevarra clarified that by filing an appeal, the government is not necessarily recognizing the ICC’s jurisdiction.
“The ICC rules are different from our ordinary rule that says a person’s voluntary appearance before the court is effectively a submission to the court’s jurisdiction. The ICC rules precisely provides for an appeal by a state regarding any ruling on jurisdiction or admissibility,” he said.
“By jurisdiction, we are saying that the Philippine situation does not fall under any of the 4 crimes that the ICC may investigate under the Rome Statute (genocide, war crimes, crime of aggression, and crime against humanity). By admissibility, we refer to the principle that the ICC’s role is merely complementary to the state’s primary duty to investigate crimes committed in its own territory,” he added.
For Human Rights Watch, the filing of an appeal will not change anything.
“The government is just going through the motion of exhausting remedies available to them. They were given ample time and opportunity to prove their assertion of complementarity but the Pre-Trial Chamber didn’t see it. It was never there,” Carlos Conde, HRW senior Philippines researcher said.
“Instead of undermining the ICC and its important work for accountability, the government should really just cooperate. Just because it’s no longer a state party to the Rome Statute doesn’t mean it can’t cooperate. It takes political will and moral courage to do that, however, and we hope the Marcos government will find those,” he added.
Lawyer Kristina Conti of the National Union of Peoples’ Lawyers and assisting counsel for victims with Rise Up for Life and for Rights, welcomed the move as a positive step that the Philippine government is in fact following the processes of the Rome Statute.
Government officials had repeatedly argued the Philippines is no longer under the jurisdiction of the ICC and emphasized the country’s sovereignty.
Former Philippine President Rodrigo Duterte withdrew from the ICC in March 2018, a month after the ICC Prosecutor launched a preliminary examination on the situation in the Philippines. The withdrawal took effect in March 2019.
Despite this, the ICC Pre-Trial Chamber, in June 2021, authorized the ICC Prosecutor to launch his office’s probe, which was suspended shortly after upon the request of the Philippine government.
But in January this year, the Pre-Trial Chamber approved the resumption, which the Philippine government is now appealing.
“The Philippine government did ask for suspension while the appeal has not been resolved, but the Appeals Chamber must categorically make an order. Meanwhile, the investigation can proceed and the ICC investigators and prosecutorial team can proceed with the taking of testimonies and collection of documentary evidence,” Conti said in a statement.
She warned the Philippine government against merely repeating arguments that have been previously rejected.
“In court, unlike in the public arena, we cannot keep rehashing the same points over and over again, without weeding out the false, the incorrect, and the unreasonable. And certainly, no one can be allowed to determine for himself what is the law,” she said.
The ICC probe will look into whether there are widespread and systematic attacks on a civilian population pursuant to a State policy in the Davao Death Squad and drug war killings from 2011 to March 2019, when the Philippines was still a member of the ICC.
The preliminary investigation stage will determine if summons or arrest warrants will be issued against specific individuals.
Guevarra said “the OSG is representing the interests of the republic, not the interests of individuals who may be targeted for investigation.”
Duterte, a former mayor of Davao City, launched a brutal anti-narcotics campaign during his presidency from 2016 until 2022 supposedly as a means to get rid of the drugs problem.
More than 6,000 suspected drug personalities were killed in police operations during his term, according to official tally. But rights groups estimate the figure could go as high as 30,000, including those who were killed by vigilantes and unknown perpetrators.
Guevarra served as Justice Secretary during the Duterte administration.