Government appeals ICC ruling on drug probe

MANILA, Philippines — The Philippine government has asked the International Criminal Court (ICC) to suspend the preliminary investigation into the alleged crimes against humanity committed in relation to the Davao death squad and the Duterte administration’s deadly campaign against illegal drugs.

The Philippines, through the office of Solicitor General Menardo Guevarra, has filed a notice of appeal on the Jan. 26 decision of the ICC Pre-Trial Chamber I that authorized ICC prosecutor Karim Khan to proceed with the preliminary investigation.

The five-page notice of appeal, dated Feb. 3, was filed before the ICC Appeals Chamber. It was signed by Guevarra and five other assistant solicitors general.

Without providing specific arguments, the government said it “disagrees with, and hereby rejects” the conclusions made by the pre-trial chamber in its earlier ruling.

It sought the reversal of the decision and the denial of Khan’s request to resume its investigation.

The Philippines also asked the ICC Appeals Chamber to suspend implementation of the assailed decision pending resolution of the appeal.

Under the rules, the Philippine government will then file an appeal brief containing the details of its arguments. The prosecutor will be given a chance to respond.

Citing the Chambers Practice Manual, Human Rights Watch (HRW) said appeals chamber “shall render its judgments within four months from the date of filing of the response to the appeal brief.”

“Usually, these proceedings are just in writing but, if the appeals chamber decides to have a hearing, then they need to issue their decision within four months of that hearing,” it added.

In its Jan. 26 decision, the ICC Pre-Trial Chamber I granted Khan’s request to resume its preliminary investigation into the situation in the Philippines.

It said “that the various domestic initiatives and proceedings relied on by the Philippines do not amount to tangible, concrete and progressive investigative steps being carried out with a view to conducting criminal proceedings.”

The preliminary investigation was first authorized by ICC judges in September 2021, noting that “there is a reasonable basis for the Prosecutor to proceed with an investigation, in the sense that the crime against humanity of murder appears to have been committed, and that potential case(s) arising from such investigation appear to fall within the Court’s jurisdiction.”

The investigation covers killings committed in the context of the so-called war on drugs from July 1, 2016 to March 16, 2019, when the Philippines officially withdrew from the Rome Statute that established the ICC.

The investigation also covers the killings in the Davao region from Nov. 1, 2011 to June 30, 2016 when former president Rodrigo Duterte was either the mayor or vice mayor of Davao City.

The investigation was suspended in November 2021 following an official request from the Philippine government.

Last June 24, Khan asked the ICC judges to authorize the resumption of the investigation, noting that the “deferral requested by the Philippines is not warranted.”

“The majority of the information provided by the Philippine government relates to administrative and other non-penal processes and proceedings which do not seek to establish criminal responsibility, and therefore cannot warrant deferral of the ICC’s criminal investigation. The various proceedings referenced by the Philippines also fail to sufficiently mirror the authorized ICC investigation,” he said at the time.

Saying it does not change anything, HRW Asia senior researcher Carlos Conde said the Philippine government is simply 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,” he told reporters.

“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.

Philippine government officials have repeatedly claimed that the ICC no longer has any jurisdiction over the country since it is no longer a member of the Rome Statute.

The ICC Pre-Trial Chamber already ruled that the prosecutor can investigate alleged crimes that happened in the country when it was a member of the Rome Statute or between Nov. 1, 2011 and March 16, 2019.

EJK probe

As a visiting team of experts assesses Philippines’ capacity to investigate extrajudicial killings (EJKs), the United Nations office in the country underscored Tuesday the awareness, effective use and implementation of international guidelines to investigate suspicious deaths and ensure accountability.

A three-person team of experts on the Minnesota Protocol on the investigation of potentially unlawful death is visiting the Philippines from Feb. 6 to 9.

This capacity development initiative is carried out as part of the UN Joint Program on Human Rights and within the framework of the Human Rights Council resolution 45/33 on technical cooperation.

During the visit, the experts met with government officials, members of law enforcement, academe and civil society actors in order to strengthen their understanding of local capacities and to discuss a training program for strengthening investigations into suspicious deaths in line with international best practices and standards.

“The Minnesota Protocol on the investigation of potentially unlawful death (2016) is today’s golden standard for the investigation and prevention of potentially unlawful deaths. Awareness and effective use and implementation of the Minnesota Protocol is an effective way of ensuring that all cases of potentially unlawful deaths are effectively investigated, including for the prevention of extrajudicial, summary or arbitrary executions,” the UN office said in a statement.

The team of experts consists of Dr. Morris Tidball-Binz, Dr. Stephen Cordner and lawyer Kingsley Abbott. Tidball-Binz currently serves as UN Special Rapporteur on extrajudicial, summary or arbitrary executions and is conducting this technical exploration visit in a non-official capacity.

Meanwhile, the Commission on Human Rights (CHR) has welcomed the visit of a team of forensic pathology experts led by Tidball-Binz supposedly to enhance the capacity on forensic pathology of government doctors in line with international standards.

In a statement, the CHR credited Justice Secretary Jesus Crispin Remulla for inviting Tidball-Binz and his team for capacity building and to aid the Department of Justice in its plan to install at least one forensic pathologist in each of the country’s 17 regions.

“The Commission equally sees the crucial importance of forensic pathology in resolving unlawful deaths toward truth-seeking, accountability and justice. We equally recognize the urgent value of having forensic pathologists in all regions to aid in law enforcement and provide their expertise to determine results and help enable the resolution of unjust executions,” the CHR said.

“Thus, we are hopeful that the visit will enable concrete enactment of measures that will ensure the swift training of doctors in forensic pathology and greater investment in this field,” it added. –Pia Lee-Brago, Elizabeth Marcelo