MANILA — International Criminal Court (ICC) Prosecutor Karim Khan has rejected the Philippine government’s arguments in seeking to stop the tribunal’s probe on the drug war and Davao Death Squad killings in the Philippines.
In a 21-page submission to the ICC Pre-Trial Chamber (PTC) dated Sept. 22, Khan urged the chamber to “order the resumption of the investigation into the Situation in the Republic of the Philippines.”
The government, in a 62-page filing on Sept. 8, had argued the ICC lacks jurisdiction to conduct the probe and that the alleged crimes are insufficiently grave to warrant further action by the international court.
The Philippine submission, signed by Solicitor General Menardo Guevarra and five assistant solicitors general, also claimed the Philippine government has investigated and prosecuted the alleged crimes or is doing so.
But Khan was unconvinced.
“[T]he Prosecution respectfully submits that none of those arguments have merit,” he said.
The Philippine government, he said, has failed to substantiate its claim that the Philippines justice system "generally functions well" and administrative proceedings "may or can" result in criminal proceedings.
“[N]othing in the observations nor in the hundreds of pages of associated annexes substantiates that criminal proceedings actually have been or are being conducted in anything more than a small number of cases,” he said.
Included in the Philippine investigations that Khan examined were those conducted by the Department of Justice (DOJ) Inter-Agency Review Panel, the Administrative Order No. 35 (AO 35) Committee, the Philippine National Police Internal Affairs Service and the writ of amparo (protective writ) proceedings.
Khan said the DOJ inter-agency panel and the AO 35 Committee failed to show “tangible, concrete, and progressive investigative steps” such as interviewing witnesses or suspects, collecting documentary evidence or carrying out forensic analyses.
He earlier described the work of the panel as a mere “administrative” “desk review,” referring to the list of 52 cases the DOJ submitted to the ICC.
These, Khan said, do not merit deferral of the ICC probe.
Also not substantiated are the probes involving drug war-related killings in Davao from 2011 to 2016 or those perpetrated by vigilantes and neither were there probes of drug war-related torture, according to the submission.
The ICC prosecutor noted only a handful of criminal investigations were conducted of killings, which do not mirror the Court’s authorized investigation.
Compared to the thousands killed in the drug war, Khan said the Philippine government was only able to claim that around 302 cases have been referred to the National Bureau of Investigation for case buildup while new information it submitted only refers to 17 cases.
“The Prosecution respectfully submits that the new material provided by the GovPH, however, still fails to substantiate the existence of the claimed investigative steps in most instances. Tangible and concrete investigative steps must be substantiated by court records, police reports, internal memos, or other relevant documentation. Tables and lists of alleged investigations, without supporting documentation, are insufficient,” he said.
He also pointed out that the cases involved only low-ranking police officers, not higher-level perpetrators.
These probes, he added, framed the cases as “isolated instances” with no inquiry into larger patterns or an underlying policy.
“Prosecution respectfully notes that the GovPH has shown no effort to pursue such leads or to otherwise establish a ‘firm basis’ for investigation or prosecution. That failure speaks to the need for an impartial investigation by the Prosecution,” he said.
Khan further said that in trying to oppose the resumption of an ICC Prosecutor’s probe, the Rome Statute does not allow challenges on the basis of lack of jurisdiction or gravity of the alleged crimes.
But even going over the jurisdiction and gravity arguments, Khan said the Philippine government "misstates the law applicable to the state policy requirement, and fails to put forward any concrete evidence or information calling into question the previous findings of this Pre-Trial Chamber.”
“A state policy need not be explicitly defined or formalised, and an attack which is planned, directed, or organised – as opposed to spontaneous or isolated acts of violence – will be sufficient. A state policy also need not be conceived at the highest levels of the State, but can be established by evidence that regional or even local state actors actively promoted or encouraged an attack on a civilian population,” he said.
“In this situation, the Chamber has already addressed in detail several considerations which establish the existence of a state policy and its connection to the alleged crimes. This included the statements of former President Duterte and other government officials; a clear link between the killings and the government’s formal anti-drug campaign, including the increase and decrease of killings coinciding with changes in the official policy; the use of watch lists; the provision of rewards or promotions to alleged physical perpetrators; and the failure of national authorities to take meaningful steps to investigate or prosecute the killings. These facts are more than sufficient to conclude that the killings were committed in furtherance of a state policy,” he added.
That there is no widespread or systematic attack on the civilian population or no state policy, Khan said, relates to the merits of the case, not the ICC’s jurisdiction.
Contrary to the Philippine government's contention, the ICC prosecutor found that the crimes alleged are "serious crimes committed against civilians (including against children) which demand investigation and prosecution."
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 court.
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 the Philippine government's deferral request.
In June this year, Khan asked the ICC Pre-Trial Chamber to allow the resumption of the probe after finding that the Philippine government has not demonstrated it has investigated or is investigating crimes within the ICC’s jurisdiction.
The ICC Pre-Trial Chamber has yet to act on Khan's request.