“The GovPH argues that its criminal justice system generally functions well, and that certain administrative and other mechanisms may or can result in criminal proceedings. However, nothing in the observations nor in the hundreds of pages of associated annexes substantiates that criminal proceedings actually have been or are being conducted in anything more than a small number of cases.”
By ANNE MARXZE D. UMIL
MANILA – International Criminal Court (ICC) Prosecutor Karim Khan rejected the arguments presented by the Philippine government in its request not to proceed with the investigation on the drug-related killings under President Duterte’s administration and the Davao Death Squad.
Last Sept. 8, the Philippine government through Solicitor General Menardo Guevarra asked the Pre-Trial Chamber to deny Khan’s request to resume the probe on the killings in the Philippines.
The Philippine government asserted that the ICC has no jurisdiction over the Philippines, that the alleged murder incidents do not constitute crimes against humanity and that the case filed in the ICC are already being investigated by the local courts.
But Khan, in his Sept. 22 submission to the pre-trial chamber, rejected these arguments and reiterated that investigation must resume.
JUST IN: ICC Prosecutor Karim Khan reiterates the resumption of the investigation of drug-related killings under the administration of President Duterte and the Davao Death Squad. pic.twitter.com/8QT8pDqc2d
— Bulatlat (@bulatlat) September 27, 2022
Khan said the Philippine government’s argument of lack of jurisdiction has no basis as Article 18 of the Rome Statute “provides a narrowly limited mechanism for States to bring a preliminary admissibility challenge on complementarity grounds.”
He also said that there is no provision in the Rome Statute for a State or government “to challenge the resumption of an investigation on jurisdictional or gravity grounds at this stage of proceedings.”
On crimes against humanity, the Philippine government argued that the murder incidents that happened during in the period of July 1, 2016 to March 16, 2019 and the incidents in Davao region between Nov. 1, 2011 to June 20, 2016 do not constitute crimes against humanity saying that these incidents do not qualify as an attack against the civilian population. The government added that these occurrences “were not in furtherance of a state or organizational policy to commit such attack.”
But Khan said the Philippine government “misstates the law applicable to the state policy requirement, and fails to put forward any concrete evidence or information calling into question the previous findings of this Pre-Trial Chamber.”
The Prosecutor said that a state policy need not be explicitly defined or formalized. He said “an attack which is planned, directed, or organised – as opposed to spontaneous or isolated acts of violence – will be sufficient.”
“A state policy also need not be conceived at the highest levels of the State, but can be established by evidence that regional or even local state actors actively promoted or encouraged an attack on a civilian population,” Khan said.
These include Duterte and other government officials’ public statements; a link between the killings and the government’s formal anti-drug campaign; the watch lists; the rewards or promotions to alleged perpetrators; and the failure of national authorities to take meaningful steps to investigate or prosecute the killings.
“These facts are more than sufficient to conclude that the killings were committed in furtherance of a state policy,” Khan said.
On the Philippine government’s claim that the war-on-drugs cases are being heard in the domestic courts, Khan said that the government has not demonstrated that it has conducted or is conducting investigations or prosecution even with its additional submission to the ICC.
Read: Rights groups shun request to defer ICC probe, assert ‘domestic mechanisms ineffective, failing’
Read: Rights groups back kin of drug-related killings on ICC case
“The GovPH argues that its criminal justice system generally functions well, and that certain administrative and other mechanisms may or can result in criminal proceedings. However, nothing in the observations nor in the hundreds of pages of associated annexes substantiates that criminal proceedings actually have been or are being conducted in anything more than a small number of cases,” he said.
Although the government has provided updates on what Khan said a small number of criminal proceedings, it still remains: 1) very few in number compared to the total number of alleged killings; 2) focused overwhelmingly on low-ranking police officers and physical perpetrators, with no apparent investigation of higher-level perpetrators; and 3) framed in terms of “isolated instances” without inquiry into larger patterns of conduct or underlying policy.
Read: Duterte to pursue war on drugs, death penalty despite UN reso
The Philippine government’s data show there are more than 5,000 drug-related killings in the government’s implementation of campaign against illegal drugs. Civil society organizations monitoring the killings meanwhile claim the number is more than that. The Third World Studies Center of the University of the Philippines-Diliman claims that the running count on reported drug-related killings in the Philippines continues.
It was in June 2021 when former ICC Prosecutor Fatou Bensouda formally requested the Pre-Trial Chamber to authorize an investigation into the situation in the Philippines.
Bensouda said that although the Philippines withdrew from the Rome Statute that took effect in March 17, 2019, the ICC retains jurisdiction over crimes that are alleged to have occurred during the period when the Philippines was still a State Party to the Rome Statute.
The Supreme Court in its March 26, 2021 ruling also said that the Philippines is still obliged to cooperate with the ICC after its withdrawal.
“Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate,” the Supreme Court said in its decision.
The Philippine government however, has been adamant to cooperate to the ICC hence its requests for the deferral of the investigation.
Meanwhile, the ICC proceeded to invite observations and victims’ views and concerns last July 14. On Sept. 22, the ICC registry transmitted eight representations it received from victims in the Philippines. (RTS, RVO)
Click here to read more on drug-related killings in the Philippines. 
