MANILA (UPDATED) — The Philippine government has asked the International Criminal Court (ICC) Pre-Trial Chamber to deny the request of the ICC Prosecutor to resume its investigation into the drug war killings in the country.

In a press statement, Solicitor General Menardo Guevarra said the Philippine government submitted Thursday its "Observation on the Request of the Office of the Prosecutor to Resume Investigation into the Situation in the Republic of the Philippines" to the ICC PTC through the Philippine Embassy at The Hague, Netherlands.

The Hague-based international tribunal has set September 8 as the deadline for the Philippine government to comment on ICC Prosecutor Karim Khan’s request.

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The Office of the Solicitor General (OSG), which represents the Philippine government at the ICC, cited arguments on jurisdiction, admissibility and complementarity in its submission.

“The ICC has no jurisdiction over the situation in the Philippines. The alleged murder incidents that happened during the relevant period do not constitute ‘crimes against humanity,’ considering that said incidents do not qualify as an ‘attack’ against the civilian population,” it said.

“Furthermore, the said occurrences were not in furtherance of a state or organizational policy to commit such an attack,” it added.

Article 5 of the Rome Statute lists down the crimes within ICC’s jurisdiction — genocide, crimes against humanity, war crimes and the crime of aggression.

The ICC prosecutor is looking at whether crimes against humanity of murder, among other crimes, were committed in the Philippine drug war which were widespread or systematic attacks against a civilian population in accordance with State policy from 2011, when the Philippines joined the ICC, up to 2019, when its withdrawal from the Rome Statute took effect.

The Philippine government also argued the complaints filed before the ICC are already being investigated and prosecuted by the proper agencies in the country and it is neither unwilling nor unable to carry out the probes.

To support this, the OSG said it submitted a report on the progress of the investigations.

The Philippine government added that under the complementarity principle, “state-level investigative proceedings should take precedence,” thus, the resumption of the ICC Prosecutor's probe on the Philippine situation is “not warranted.”

Also submitted to the ICC PTC, according to the OSG, are information showing that “inquiries were made on drug-related killings in the Davao region” from 2011-2016 and there were also probes on crimes other than murder.

ICC Prosecutor Khan had told the ICC that the Philippine government has not demonstrated it has investigated or is investigating crimes within the ICC’s jurisdiction.

Philippine investigations, 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.

He also pointed out the probes do not reach persons in the higher echelons of the police and the government while the information provided to the ICC only refer to a small portion of the killings and do not lead to criminal prosecutions.

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The Philippine government has provided a matrix of 52 cases and around 300 other cases that the Department of Justice-led drug war review panel had looked into.

The OSG said that the Philippine government also explained to the ICC PTC the extent of the drug problem in the country and the process of investigating and prosecuting drug-related offenses under the Philippine legal and judicial system.

The DOJ earlier said it will submit info out of comity, not out of compliance.
In February 2018, then-ICC Prosecutor Fatou Bensouda opened a preliminary examination on the situation in the Philippines, following submissions by various international and domestic rights groups expressing concern over the drug war killings.

Before she stepped down as ICC Prosecutor in June last year, Bensouda sought the Pre-Trial Chamber’s permission to proceed with the investigation in the Philippines.

• ICC prosecutor seeks judicial nod to start probe on PH situation amid 'war on drugs'

The ICC PTC granted the request in September last year but the ICC Prosecutor suspended its own probe in November 2021 following a deferral request by the Philippine government.

• ICC Prosecutor suspends probe into PH drug war killings
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President Ferdinand Marcos Jr. also said last August that the Philippines had "no intention of rejoining" the ICC.

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