ICC trashes Marcos’ appeal

Rodrigo Duterte

‘Probe on Duterte’s deadly drug war continues’

THE INTERNATIONAL Criminal Court (ICC) has trashed the government’s request to suspend its investigation into alleged crimes against humanity in the Duterte administration’s deadly war on drugs, removing one hurdle for the resumption of the probe. 

“In the absence of persuasive reasons in support of ordering suspensive effect, the Appeals Chamber rejects the request. This is without prejudice to its eventual decision on the merits of the Philippines’ appeal against the Impugned Decision,” the ICC’s Appeal Chamber stated in an eight-page decision dated March 27.

The five-member Chamber noted that the Office of the Solicitor General (OSG), failed to substantiate its claim that the ICC lacked jurisdiction over the investigation that would create an irreversible situation and have far-reaching consequences that would be “difficult to correct.”  

This is the second blow to the government’s efforts to stop the controversial ICC investigation following a recent decision allowing families and victims of the bloody campaign to submit their statements on the OSG’s appeal to reverse an earlier decision allowing the resumption of the probe into heinous crimes during the administration of former president Rodrigo Duterte from July 1, 2016 to March 16, 2019 and the 2011-2016 Davao Death Squad killings.

While the government was given access to all filings on the case, the Chamber refused to provide information on the identities of those who file their statements for their own safety and security.

The Appeal Chamber also noted the government’s failure to promptly include its arguments on the suspension request when the OSG submitted the notice of appeal on February 3, doing so only when it filed an Appeal Brief on March 13.  

In response to the OSG’s notice, ICC Prosecutor Karim Khan had argued in a February 16 response that a suspension is “not necessary in the circumstances of this case.”  He noted that there is no irreversible situation that would be very difficult to correct or could defeat the purpose of the appeal.

The Chamber has not yet decided on the government’s appeal which presented four arguments to support its position, including the alleged lack of jurisdiction of the Netherlands-based court and the alleged failure to place the burden of proof on the prosecutor.

If the Chamber grants the Philippine petition for reversal, Khan said his office would discontinue any relevant investigation into the drug-related killings and other crimes. 

Marcos

But President Ferdinand Marcos, Jr., who has protected Duterte from the ICC probe, said his administration will no longer cooperate with the ICC, the government will finally disengage from any contact and communication with the international court after it rejected the country's appeal to suspend its drug war probe. 

He said the ICC’s decision “ends all our involvement with the ICC. We don't have the next move... Hindi na tayo puwede mag-appeal. The appeal has failed and in argue, there is nothing more that we can do,” he said, insisting the ICC does not have any jurisdiction over the Philippines.

“We ended up with the position that we started with: we cannot cooperate with the ICC considering there are very serious questions about their jurisdiction,” said Marcos, the son of Dictator Ferdinand Marcos, who was ousted from power in 1986. 

Welcome development

The International Coalition for Human Rights in the Philippines welcomed the ICC decision. “The ICHRP congratulates the ICC for cutting through the fog of lies and false claims laid out by the Marcos-Duterte government that the Philippine judicial system is functioning and can address any concerns about the President, the regime and the military’s roles in these gross violations of human rights and crimes against humanity,” it said.

On January 26, the ICC announced that it had granted the Prosecutor’s request to resume investigation into the “Situation of the Republic of the Philippines.” The ICC indicated that “following a careful analysis of the materials provided by the Philippines, the Chamber is not satisfied that the Philippines is undertaking relevant investigations that would warrant a deferral of the Court’s investigations”.

Having examined the submissions and materials of the Philippine government, and of the ICC Prosecutor, as well as the victims’ observations, the Chamber concluded that the various domestic initiatives and proceedings, assessed collectively, do not amount to tangible, concrete and progressive investigative steps in a way that would sufficiently mirror the Court’s investigation.

This conclusion of the ICC mirrors the earlier findings of Investigate Philippine Commission of Inquiry which found that domestic measures were effectively not functioning, and there was no evidence to support the Philippine government’s contention that victims could find justice in the Philippine courts. The judicial system itself was in fact being wielded as an instrument in the Philippine government’s campaign of state terror.

The ICC decision to continue the pursuit of justice lays bare the Marcos Administration’s culpability in shielding the Duterte regime’s policies of impunity and state terror that killed perhaps 30,000 or more, and victimized Filipinos for six long years, according to Peter Murphy, ICHRP Chairperson.

“We are extremely appreciative of the decision of the ICC. It offers a mechanism for victims to continue their pursuit of justice against the Duterte Regime’s brutal war on drugs, on dissent and on the Moro and all indigenous peoples. Justice will still be served despite the Marcos administration’s decision to keep the Philippines outside the jurisdiction of the ICC and cover-up the crimes against humanity committed by the police and the military under Duterte,” he said, adding, the Marcos administration functions simply as a continuation of its brutal predecessor.

ICHRP - a global network of organizations, concerned about the human rights situation in the Philippines - believes the prosecution by the ICC may not stop the Marcos government from sheltering the perpetrators from prosecution or prevent such crimes from continuing to occur, but it can provide some constraint and a measure of justice to the victims.

In November 2022, Justice Secretary Jesus Remulla reported to the United Nations Universal Periodic Review that over 17,000 cases of drug killings involving police officers had been reviewed, resulting in a small number of disciplinary actions.

But Murphy said there is no way that this level of inquiry - most unlikely to be genuine -amounts to an investigation of the crime against humanity of murder which the ICC was investigating.

“ICHRP has full confidence in the impartiality of the ICC. We urge the ICC to vigorously pursue the full investigation of the previous Duterte administration for these crimes against humanity so that, finally, justice may be served and impunity ended,” he said.

Murphy, an Australian-based human rights advocate, led Investigate PH, a three-part investigation by an international commission on the extrajudicial killings, illegal arrests, abductions and disappearances in the Philippines since July 1, 2016, when Duterte came into power. (Ivel John Santos - Vera Files; Job Manahan, Katrina Domingo - ABS-CBN News; Mindanao Examiner)