ICC Prosecutor wants to resume probe on PH drug war

Mike Navallo, ABS-CBN News

Posted at Jun 24 2022 11:33 PM | Updated as of Jun 25 2022 01:09 AM

Family, neighbors, and supporters of Kian delos Santos ABS CBN News/file
Family, neighbors, and supporters of Kian delos Santos pay tribute at the site where he was slain at in Caloocan City on August 15, 2018. Delos Santos was killed after being apprehended by police during their anti-drug campaign. George Calvelo, ABS CBN News/file

Khan: PH govt submitted insufficient information 

MANILA (UPDATED) — International Criminal Court (ICC) Prosecutor Karim Khan has asked the ICC Pre-Trial Chamber to allow his office to resume its probe into the drug war in the Philippines despite a request from the Philippine government to defer it.

In a 53-page request uploaded on the ICC’s website late Friday night Manila time, Khan said the Philippine government has not demonstrated it has investigated or is investigating crimes within the ICC’s jurisdiction, after his office analyzed the Philippine government’s deferral request.

Khan also said the investigation conducted by the Philippine govt "does not sufficiently mirror the investigation to be conducted by the Prosecution.” 

Philippine probes, he said, do not look into crimes committed before July 2016 when President Rodrigo Duterte took office and started his bloody war on drugs and neither does it cover crimes other than murder carried out by police such as torture and unlawful imprisonment.

“The GovPH does not appear to be investigating whether any of the alleged crimes were committed pursuant to a policy or occurred systemically, or whether any person in the higher echelons of the police or government may be criminally responsible. For these reasons alone, the Court should not defer to the GovPH’s investigation,” he said.

Khan also said the information provided by the Philippine government are “insufficient” and refer only to a small portion of the killings in the drug war which do not lead to criminal prosecutions.

“Despite the Prosecution’s requests for further substantiation, the documents submitted by the GovPH largely consist of lists of cases, which do not provide evidence of sufficient specificity and probative value to establish concrete and progressive investigative steps to ascertain criminal responsibility within the parameters of the Court’s intended investigation,” he said.

“Even then, the cases referenced by the GovPH relate only to a small proportion of the criminal conduct that allegedly took place in the Philippines between 1 November 2011 and 16 March 2019, in the context of the 'war on drugs' ('WoD'),” he added. 

“In addition, the GovPH refers to non-penal initiatives and proceedings, which do not result in criminal prosecutions and are therefore irrelevant to the Chamber’s analysis under article 18.”

Article 18(2) of the Rome Statute 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.

Khan recommended instead that the ICC Pre-Trial Chamber authorize the resumption of his office’s probe into the situation in the Philippines and to allow victims or their representatives to file written submissions on the Philippine government's request to defer the ICC probe within a "reasonable but limited time."

The ICC Pre-Trial Chamber, in September last year, authorized the ICC Prosecutor to proceed with its probe of the drug war in the Philippines from July 1, 2016 when Duterte became President until March 16, 2019, when the Philippines withdrew from the ICC.

The investigation will also cover Duterte’s time as mayor and vice mayor of Davao City since the Philippines became part of the ICC on November 1, 2011.

The ICC Prosecutor suspended its probe in November 2021 due to a request from the Philippine government.


In deciding to recommend the resumption of the Philippine drug war probe, Khan stressed that the burden is on the State requesting the deferral of the ICC probe to substantiate its request that it is investigating. 

Mere preparedness or willingness to investigate or prosecute, he said, is not enough.

Khan rejected as a mere “administrative” “desk review" the list of 52 cases the DOJ drug war review panel submitted to the ICC.

In October last year, the DOJ drug war review panel came out with its matrix of 52 cases forwarded from the Philippine National Police’s Internal Affairs Service.

The matrix included observations of violations of police protocols and the absence of autopsy reports and other key test results needed to probe the killings.

“The Panel’s 'desk review' by itself thus does not constitute investigative activity within the framework of article 18(2) of the Statute and cannot justify deferral of the Court’s investigation,” Khan said, noting that the panel does not seem to have independent powers of its own nor an investigative function. 

He added the submission did not have information on how the review of the 52 and 250 other cases referred to the National Bureau of Investigation (NBI) was conducted.

He noted, it is also unclear what the status is of the other cases not forwarded to the NBI and the 6,000 other cases the DOJ panel said it will review.

No less than Justice Secretary Menardo Guevarra touted the drug war review before the United Nations Human Rights Council (UNHRC) in June 2020, shortly after the UN Office of the High Commissioner for Human Rights released a scathing report that a heavy-handed focus on dealing with security threats and illegal drugs have led to serious human rights violations in the Philippines.

Various rights groups have attributed to Guevarra’s promise of a drug war review the UNHRC’s subsequent resolution to provide technical cooperation and capacity-building for promoting human rights in the Philippines instead of a full-blown international probe on the drug war killings.

Except for the matrix, the reports on the 2 drug war reviews the DOJ panel conducted have not yet been released to the public.

Khan said the DOJ has only shown sufficient documentation in only 3 cases, one of which is the killing of 17-yr-old Kian delos Santos which led to the conviction of 3 cops. 

The 2 other cases happened in Agusan del Sur and NBI has filed complaints with prosecutors.

Khan said the Philippine government failed to substantiate other identified drug war cases in the 4 lists of cases it submitted.

"The Prosecution even reiterated the need for such documentation after receiving the said list, but the GovPH failed to provide any further information,” he said.

He pointed out, 302 cases out of thousands killed in the drug war is too small and in 266 of these cases, only low-level perpetrators were identified.


Khan rejected the Philippine government’s invocation of writ of amparo (plea for protection) proceedings in 4 cases, saying none of these led to criminal probes. 

The Philippine government had cited the cases of Efren Morillo, Christina Gonzales, Aileen Almora and Sr. Ma. Juanito Daño but Khan said investigative steps in these cases were not established.

Khan also considered "not relevant" the other initiatives the PH government raised before the ICC to defer its probe such as the AO 35 task force on extra-legal killings and the UN Joint Program on Human Rights.

The ICC prosecutor even went to the extent of pointing out information it gathered from various sources which the Philippine government failed to raise to justify its deferral request, such as criminal cases filed against cops involved in the killing of father and son Renato and Jaypee Bertes at a Pasay Police Station in 2016.

It also cited Commission on Human Right’s report which concluded that the Philippine government failed to respect human rights and encouraged a culture of impunity.

“In conclusion, the Deferral Request of the GovPH is not substantiated and, in any event, the national proceedings referenced do not sufficiently mirror the Court’s investigation. Consequently, the investigation should be reauthorized and resumed,” he said.

"Without such an investigation, the Prosecution submits that there is a real risk that Rome Statute crimes committed in the Philippines will go un-investigated and unpunished,” he added.


In a statement also released on Friday, Khan said he has informed the Philippine government of his application to resume the drug war probe.

“In my letter, I made clear – and I repeat here now – that I remain ready and willing to continue the productive dialogue we have had since November 2021, and to explore ways in which, moving forward, we can effectively cooperate to deliver justice to victims in the Philippines,” he said.

ABS-CBN News is still seeking the side of the DOJ, Malacañang, the Philippine National Police and other relevant government agencies.

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