PH appeals resumption of ICC probe into drug war killings

John Gabriel Agcaoili, ABS-CBN News

Posted at Mar 15 2023 03:06 AM

A picture taken on November 23, 2015 shows the building of the International Criminal Court (ICC) in The Hague, The Netherlands. Martijn Beekman/ANP/AFP Photo/file
A picture taken on November 23, 2015 shows the building of the International Criminal Court (ICC) in The Hague, The Netherlands. Martijn Beekman/ANP/AFP Photo/file

MANILA - The Philippines has officially appealed an International Criminal Court Pre-trial Chamber (PTC) ruling which allowed the resumption of the probe on the deadly drug war of the Duterte administration and the alleged Davao Death Squad.

In its formal appeal brief filed before the ICC Appeals Chamber on Tuesday, March 13, the Philippine government requested the tribunal to suspend the ruling that authorized the reopening of the investigation by the ICC prosecutor.

It also petitioned the Appeals Chamber to reverse the ICC PTC's decision and "determine" that the office of ICC Prosecutor Karim Khan is not allowed to resume its probe into the Philippines.

The formal appeal was signed by Solicitor General Menardo Guevarra, five assistant solicitors general, and an international criminal lawyer.

Manila said that the ICC prosecutor "would lack any legal foundation" and his investigation would infringe upon the Philippines' sovereignty.

"The resumption of the Prosecution's investigation pending resolution of this appeal would therefore defeat its very purpose and create an irreversible situation that could not be corrected. The suspension of the Prosecution's investigation into the Situation in the Republic of the Philippines is therefore warranted pending the expeditious resolution of this appeal," the appeal read.

Manila repeated its argument that the Philippines has withdrawn from the Rome Statute, insisting that the ICC has no jurisdiction over the country.

"However, even with this in mind, the Philippine Government remains committed to the goals of the Court and actively engaged with the Prosecution and the Court in the context of article 18 on this basis. Despite this, and even assuming that the Court had jurisdiction, its efforts were not fully credited and its offer to maintain cooperation was unreasonably cut short," the appeal read. 

It referred to the Rome Statute's provision on preliminary rulings regarding the admissibility of cases. Article 18(2) of the treaty allows a state to ask the ICC Prosecutor to defer to its own investigation of the criminal acts which may constitute crimes within the jurisdiction of the ICC such as crimes against humanity.


The Philippine government gave four "grounds" in its appeal as to why there should be a reversal of the ICC's decision on the probe.

In its first ground, Manila said the ICC PTC erred "in law in finding that the Court could exercise its jurisdiction on the basis that the Philippines was a State party 'at the time of the alleged crimes' and that the 'ensuing obligations' of the Rome Statute remain applicable notwithstanding the Philippines withdrawal from the Statute."

Manila also said the chamber also made an error "reversing the Prosecution's burden of proof in the context of article 18 proceedings."

It also argued that the ICC PTC "erroneously relied on the admissibility test for a concrete case in the context of an article 18(2) decision."

The Philippines also said that the chamber "erred in its failure to consider all article 17 factors."

Under Article 17(1) of the Rome Statute, the ICC can rule that a case is inadmissible in its tribunal if "(a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution."

The ICC, under Article 17(2), can also rule there is "unwillingness" by a state or country to participate if "(a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court," including crimes against humanity.

"In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings," Article 17(3) reads.


Khan, in a submission last February 16, opposed the Philippine government’s initial plea to suspend the ICC PTC's decision while Manila appeals the ruling.

The suspension would have the effect of suspending the ICC Prosecutor’s probe while the appeal is pending, he said.

Last January, the ICC PTC authorized the reopening of its investigation in the Philippines, noting that Manila's efforts to investigate and prosecute the alleged crimes against humanity in the country were not satisfactory.

The tribunal issued the ruling despite the government's previous submission, signed also by Guevarra, which claimed Filipino authorities have investigated and prosecuted the alleged crimes or are doing so.


More than 6,000 drug suspects were killed in police operations in the country during former President Rodrigo Duterte’s term from 2016 to 2022, authorities said, citing official tallies.

Rights groups, however, estimate the figure could go as high as 30,000, including those who were killed by vigilantes and unknown perpetrators.

Following petitions by various international and domestic rights groups over the killings, former ICC Prosecutor Fatou Bensouda decided in 2021 to open a preliminary examination into the war on drugs in the Philippines.

Before she stepped down as ICC Prosecutor in June 2021, Bensouda sought the ICC PTC's permission to proceed with the investigation into the drug war, including killings in Davao from November 2011 to June 2016, when Duterte served both as mayor and vice mayor.

The chamber granted the request in September 2021.


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