ICC rejects PH appeal to stop drug war probe

IMPORTANT DECISION | The International Criminal Court (ICC) in The Hague, the Netherlands, on Tuesday hands down its decision that rejected an appeal by the Philippine government to block an investigation by the tribunal’s prosecutors into the war on drugs launched by former President Rodrigo Duterte. (Photo from the website of the ICC)

MANILA, Philippines — The Appeals Chamber of the International Criminal Court (ICC) voted 3-2 on Tuesday to reject the Philippine government’s appeal to stop the ICC prosecutor’s investigation into the country’s drug war on the watch of then-President Rodrigo Duterte.

This decision by a majority vote sets in motion a possible trial if not arrests of Philippine officials complicit in alleged crimes against humanity in the course of the drug war.

The ruling, delivered in open court at The Hague by Presiding Judge Marc Perrin de Brichambaut of France, affirmed an earlier decision in January by the Pre-Trial Chamber (PTC) to authorize an inquiry on the basis of the Philippine government’s lack of willingness to investigate or prosecute crimes relating to the drug war.

The government appealed that decision and questioned the ICC’s jurisdiction after the country in 2018 withdrew from the Rome Statute—the 2002 treaty establishing the court.

The Appeals Chamber, in its ruling, found that the PTC did not err in its findings that investigations in the country did not sufficiently mirror the ICC’s inquiry and the scope of that probe.

By this, the chamber meant that Philippine authorities failed to show they were investigating or prosecuting the same set of suspects also being investigated by the ICC’s Office of the Prosecutor.

‘Domestic investigations’

The judges said the Philippine government also “failed to demonstrate that the PTC erred in placing the onus on the Philippines to show that investigations are taking place.”

“The Pre-Trial Chamber correctly assessed whether there exists an advancing process of domestic investigations within the situation which sufficiently mirrors that of the prosecutor,” De Brichambaut said.

But he and Judge Gocha Lordkipanidze of Georgia disagreed with the majority judges — Solomy Balungi Bossa of Uganda, Luz del Carmen Ibáñez Carranza of Peru, and Piotr Hofmański of Poland — and said they would have voted to uphold the Philippines’ first ground of appeal on whether the ICC has jurisdiction in the case.

In dissenting, they sided with the government’s argument that Article 127 cannot be invoked to extend the prosecutor’s power to request a probe beyond the time when the withdrawal took effect.

The Philippines withdrew formally from the Rome Statute in 2018, and former prosecutor Fatou Bensouda only sought PTC authorization in 2021.

Having upheld the first ground, they would have voted to withdraw the PTC authorization and terminate the investigation, Brichambaut said.

The Philippines’ Office of the Solicitor General (OSG) said the majority of judges “refused to consider the Philippines’ jurisdictional challenge on the ground that the Impugned Decision of the Pre-Trial Chamber is not a decision on jurisdiction.”

“The majority decision does not alter the fact that the Republic, through its various national and local agencies, remains fully committed to the internal investigation and prosecution of allegations connected to the anti-illegal drug campaign. The Philippine Government will not be deterred by today’s outcome,” the OSG also said in a statement late Tuesday.

Chief enforcers

In rejecting the Philippine government’s appeal, the Appeals Chamber opens a new stage on the country’s case in which Chief Prosecutor Karim Khan can decide whether to pursue the prosecution of certain individuals.

If he decides to pursue charges, human rights lawyer Neri Colmenares said these could fall on Duterte and former Philippine National Police chief and now Sen. Ronald dela Rosa, seen as the chief enforcers of the drug war which claimed tens of thousands of mostly poor victims in the past six years of the Duterte administration.

Colmenares, who is also legal counsel to the drug war victims, said the decision was “a major blow to injustice and impunity.”

“Had we lost at this stage, it would have been at the expense of the victims, and [this] would instigate even more abuses,” the human rights lawyer and former Bayan Muna representative said in an interview.

On Tuesday afternoon when the ruling was promulgated, families of drug war victims had gathered at a venue in Quezon City to watch the Appeals Chamber’s livestreamed proceedings.

They erupted into applause — and tears — when De Brichambaut said the court had rejected the Philippine government’s appeal.

“We won,” cheered Colmenares.

“Hopefully, this would lead to a trial. And if this leads to a trial, President Duterte might be the first Asian leader to be tried before the ICC,” he said.

Sober expectation

But Kristina Conti, the other legal counsel for the victims, had a more sober expectation as she told the families to “prepare ourselves for the next stage.”

“The dissenting votes are a cue of what is to follow,” Conti said. “We should prepare our arguments for that.”

Emily Soriano, who lost her 15-year-old son Angelito in 2016 after he was killed by masked men whom she suspected to be policemen, said the ICC decision “is really a huge joy for us that, finally, the deaths of our children would be investigated.”

She said she and other families of the victims were ready to talk with ICC investigators. They also called on President Marcos to reverse his earlier announcement that the government would not cooperate with the court.

“Please do not follow in the footsteps of the former President who did not show compassion to his own people,” Soriano said. “You are also a Filipino. If he [Duterte], indeed, committed a crime, then he should be made to face the [accusations] and get a taste of his own medicine.”

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