MANILA, Philippines — International Criminal Court Prosecutor Karim Khan rejected the Philippines’ arguments in its appeal to stop the tribunal’s investigation into the killings in the “war on drugs” waged by former President Rodrigo Duterte's administration.
In a 59-page filing, Khan said the Philippines “failed to show any error” in the ICC Pre-Trial Chamber I’s decision to allow the prosecution to resume its investigation into the alleged crimes against humanity committed in the course of the “drug war.”
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“The Philippines has failed to show any error in the Decision, let alone identified any error which materially affects the Decision,” Khan said in his submission dated April 4. “Instead, the Chamber reasonably and correctly considered the materials submitted by the Philippines and correctly applied the law.”
‘ICC has jurisdiction’
Khan said the Pre-Trial Chamber I was correct in finding that the ICC has jurisdiction over the alleged crimes committed in the Philippines as the country was still a state party at the time when these atrocities happened.
The Philippines’ withdrawal from the Rome Statute that created the ICC became effective only on March 17, 2019, while the scope of the investigation by Khan’s office covers alleged crimes committed from November 1, 2011 to March 16, 2019.
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“While a State must have been a Party to the Statute when the alleged crimes were committed, it need not still be a Party when the investigation is opened,” Khan argued.
Contrary to the Philippines’ assertion, Khan said state cooperation is not required for the ICC to exercise jurisdiction, as he pointed out that it has not been uncommon for other states to not cooperate with the tribunal and “yet this has not deprived the court of its jurisdiction.”
He added that by becoming a party to the Rome Statute, the Philippines accepted that the ICC’s jurisdiction could be triggered in the event that crimes against humanity were found to be committed on its territory and that it did not conduct genuine investigations.
‘Burden of proof with Philippines’
The ICC prosecutor also said the Philippines was wrong to claim that his office had the burden of proof that there is no basis for the deferral of the tribunal’s investigation as he argued that the country was the one who requested a pause in the probe.
Khan added that regardless of whether his office or the country bore the burden of proof, the Pre-Trial Chamber I “ensured that the Philippines had full opportunity to make observations on the law and facts presented to the Chamber by the Prosecutor, and the Philippines availed itself of this opportunity.”
Khan also said the Philippines was incorrect in claiming that the Pre-Trial Chamber I’s assessment on whether the country’s investigation sufficiently mirrored the ICC’s probe was wrong as it “overlooked” the “same person/same conduct” test, which checks if the same person and the same conduct are being investigated by both the state and the ICC.
‘Philippine submissions insufficient’
Khan also noted that the Philippines failed to address the “insufficiency” of the lists it submitted from the National Bureau of Investigation and the National Prosecution Service which include 266 cases where only four appeared to have “resulted in some form of investigation or prosecution before having been dismissed by domestic institutions.”
The ICC prosecutor also noted that for the first time, the Philippines raised that “a formal mandatory progression from the (Philippine National Police – Internal Affairs Service) to review by the Department of Justice panel to case build-up by the NBI.”
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“In the understanding of the Prosecution, PNP-IAS investigations and/or reviews by the Department of Justice panel are not legal prerequisites to the criminal investigation or prosecution of a police officer,” Khan said.
He also raised that the Philippines never pointed to “any concrete action” arising from PNP-IAS proceedings.
‘Crimes encouraged, condoned by Duterte’
He added that the Pre-Trial Chamber I was correct in finding that the Philippine has not initiated proceedings against high-ranking officials in relation to alleged crimes against humanity committed in the course of the “war on drugs” as the country did not provide enough evidence of such proceedings.
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“Tthe Chamber was neither incorrect nor unreasonable in concluding that the investigations of low-ranking individuals did not constitute sufficient tangible, concrete, and progressive steps towards this goal,” Khan said.
He continued: “In particular, by focusing on low-ranking individuals, it was not clear how the Philippines was investigating the question of the potential links between criminal incidents, which may be significant to the contextual element of crimes against humanity.”
Khan also argued that “nothing about these crimes … suggests that the potential cases before the Court are of marginal gravity.”
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“To the contrary, they are extremely serious, and appear to have been at the very least encouraged and condoned by high-level government officials, up to and including the former President,” Khan said, in reference to Duterte.