by Jaira Lou V. Batangan and Milliene Ianah R. Rocas
The International Criminal Court (ICC) has taken a significant stride towards justice for victims of the Philippines’ “war on drugs” as it resumes the investigation into alleged crimes against humanity during the Duterte administration. The ICC chamber rejected the Philippine government’s appeal against the Pre-Trial Chamber’s authorization to proceed with the probe into drug-related killings that occurred under Duterte’s presidency, including his time as Davao City mayor.
Presiding Judge Marc Perrin de Brichambaut confirmed the court’s decision, with three out of five ICC judges dismissing the appeal. The judges clarified that the contested decision was not regarding jurisdiction, while the country’s withdrawal from the ICC was not adequately addressed before the Pre-Trial Chamber.
“In view of the foregoing, the Majority finds that the Philippines has failed to demonstrate any error in the Pre-Trial Chamber’s findings with respect to the two examples, which, according to the Philippines, demonstrate the investigative steps taken in relation to recommendations and reports by the NBI,” said Presiding Judge Marc Perrin de Brichambaut in its 77 long-paged decision.
The majority of ICC judges found that the Philippines failed to demonstrate errors in the pre-trial chamber’s decision.
Phase of Investigation
The case of Duterte’s War on Drugs and his Davao Death Squad was first opened in September 2021 when the pre-trial chamber of the ICC opened the investigation. The Judges considered the views of the victims when they made this Decision. About 1,530 people and 1,050 families, who were victims of the situation, expressed their strong support for starting the investigation.
During the last months of Duterte’s term, the Philippine government submitted its first appeal praying for the deferral of the investigation. It found its basis in the complementarity principle under Article 18 (2) of the Rome Statute. Applying the said principle, it is the duty and privilege of the Philippine government to hold perpetrators of international crimes accountable; the ICC can only step in when national legal systems are unable or unwilling to do so. By procedure, Prosecutor Karim Khan had to halt.
However, the ICC Pre-Trial Chamber, earlier this year in January, allowed the prosecutor to continue his inquiry. It had said it was not convinced that the Philippines is conducting appropriate investigations that would justify a delay of the Court’s investigations based on the principle of complementarity.
On February 6, 2023, the Philippine Government, now led by Marcos’s administration, challenged the ICC Pre-Trial Chamber’s January decision citing the following grounds:
- The Philippines’ exit from the Rome Statute implied that the ICC no longer had authority over the country;
- That there is complementarity because the Philippines can and wants to probe its own issues; and
- That the pre-trial chamber cannot perform the “same person, same conduct” test in deciding whether there is complementarity.
The recent decision dismissed the challenge and affirmed the pre-trial chamber.
Drug War Accountability
The investigation could potentially lead to identifying and holding individuals responsible for alleged drug war crimes accountable. This could provide a sense of justice to the victims’ families and the broader human rights community.
“I think this is the biggest gift for us families because now we feel we have an ally. This is our chance to tell everything. Our government was blind to our suffering, when they knew what was being done to us,” Citing Domingo, interviewed by Philippine local news called BenarNews “They ignored people like me who are in the fringes of society.
“We will continue to fight and seek justice even if this takes a long time.”
The investigation might shed further light on the human rights situation in the Philippines, potentially influencing national policies and global perceptions of the country’s commitment to upholding human rights.
Drug War and Marcos Administration
Prior to the ICC Ruling allowing investigations on Duterte’s War on Drugs, President Ferdinand Marcos Jr. declared that his administration would cut off all contact with the ICC after the rejection of the appeal to halt its investigation into his predecessor’s deadly war on drugs.
Marcos Jr. stated that this marks the end of any involvement or communication with the ICC, asserting that his government has not been cooperating with the ICC on the matter. His administration argued that the domestic courts are competent to handle the prosecution of crimes. The decision to sever ties with the ICC highlights the country’s reluctance to cooperate with the international investigation into the drug war’s alleged human rights abuses.
The Marcos administration’s resistance hinders the ICC investigation and continually severs international relations.
Towards the Road of Justice
Prosecutor Karim Khan continues the investigation into the Philippine drug war. It can pave the way for potential legal actions against key figures, including former President Rodrigo Duterte and his former police chief, Senator Ronald dela Rosa. Depending on the evidence gathered, Khan may seek the issuance of arrest warrants or summonses for those who are implicated in the crime.
The road to justice is fraught with challenges. The ICC lacks a police force, relying on the cooperation of states and the international community for arrests. President Bongbong Marcos already stated that his administration will not cooperate, and his justice secretary, Jesus Crispin Remulla, has declared that they will not implement any ICC-issued warrants.
Despite the Philippines’ withdrawal from the ICC last 2019, the court still has jurisdiction over crimes committed, making it possible to pursue investigations and prosecutions.
The dismissal of the appeal marks the end of the Philippines’ recourse for further appeal. While insisting that its local courts are capable, international human rights groups continue to call for accountability and justice for the thousands of lives lost. Only two convictions of law enforcers involved in the “drug war” have been achieved thus far, emphasizing the urgency for international intervention in addressing alleged human rights abuses.
THE BARRISTER 