ICC won’t suspend probe on drug war

Janvic Mateo, Pia Lee-Brago - The Philippine Star
ICC won�t suspend probe on drug war
Building of the International Criminal Court in The Hague, Netherlands.
Wikimedia Commons

Marcos: Philippine disengaging from ICC

MANILA, Philippines — The International Criminal Court (ICC) appeals body has rejected the Philippine government’s request for suspension of the investigation on former president Rodrigo Duterte’s bloody war on drugs and the activities of the so-called Davao Death Squad.

In an eight-page decision dated March 27, ICC Appeals Chamber Judge Marc Perrin de Brichambaut noted “the absence of persuasive reasons” that would warrant the suspension of an earlier ruling allowing the ICC prosecutor to resume its probe on the possible crime against humanity.

The decision “ends all our involvement with the ICC,” President Marcos said when told of the development, which unfolded on the eve of Duterte’s 78th birthday.

The chamber observed that apart from merely referring to “far-reaching and inimical consequences” or implications of the prosecutor’s dealing with suspects, witnesses and victims, the Philippines failed to provide any explanation as to what those implications may be, and how the broad scope of the prosecutor’s investigation at this stage of the proceedings would lead to consequences that “would be very difficult to correct and may be irreversible.”

“The Appeals Chamber is not persuaded that the implementation of the Impugned Decision would cause consequences that ‘would be very difficult to correct’ or that ‘may be irreversible’ or ‘could potentially defeat the purpose of the appeal,’” read the ruling.

“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 decision read.

“No reasons are provided in support of the request,” the ICC appeals chamber said.

It also stressed that the Philippines is in a position to continue its investigations regardless of the ongoing ICC proceedings.

ICC assistant to counsel Kristina Conti said the Appeals Chamber’s decision is a welcome development for families of victims and their lawyers.

She said the arguments raised by the Philippine government were exposed to be farcical and repetitive.

“The ICC Appeals Chamber has emphasized that the Philippines may continue its domestic investigations. It remains a concern for us, however, that domestic investigations are not transparent, comprehensive and conducive enough to earn the victim’s trust,” Conti added.

On Sept.15, 2021, the Pre-Trial Chamber I authorized the ICC prosecutor to proceed with its investigation on the drug war killings allegedly perpetrated by Duterte between Nov. 1, 2011 and March 16, 2019 when he was Davao City mayor and later president.

Acting on Philippine request for suspension, the ICC Pre-Trial Chamber authorized Prosecutor Karim Khan on Jan. 26 to resume the investigation. On Feb. 6, the Philippines filed a notice of appeal and requested for suspension of the investigation pending final resolution of its appeal.

Cut off

In an interview with reporters yesterday in Pasay City, Marcos said the Philippines is cutting off communications with the ICC.

“We don’t have a next move, that is the extent of our involvement with the ICC. That ends all our involvement with the ICC,” the President said when asked about the government’s next move following the ICC’s denial of its appeal.

“Because we will no longer appeal, the appeal has failed and there is, in our view, nothing more that we can do in the government and so at this point we essentially are disengaging from any contact, from any communication with the ICC,” he said.

Marcos maintained that the ICC has no jurisdiction over the Philippines. “We are back to the position, we ended up in the same position that we started with and that is we cannot cooperate with the ICC considering the very serious questions about their jurisdiction and about what we consider to be interference and practically attacks on the sovereignty of the republic,” he said.

“So that’s pretty much it – we have no longer any recourse when it comes to the ICC,” the Chief Executive said.

Marcos clarified that the appeal was merely part of the country’s comment on the probe and not an indication of its involvement in the ICC action.

“We have not appeared as a party in the ICC because we don’t recognize the jurisdiction of the ICC. And so that is again, as I said, we have ended up now at the end where we really started,” he said.

Marcos earlier called the ICC investigation of the drug war a “threat” to the country’s sovereignty.

“So no, I do not see what their jurisdiction is. I feel that we have in our police, in our judiciary, a good system. We do not need assistance from any outside entity,” the Chief Executive said.

In 2019, the Philippines officially cut ties with the ICC after it launched a preliminary probe on the thousands of drug-related deaths during Duterte’s term.

Marcos had emphasized his aversion to rejoining the ICC, citing what he called a working justice system in the country.


Solicitor General Menardo Guevarra expressed disappointment with the decision of ICC Appeals’ Chamber, saying it denied the request for suspension of the investigation even it has yet to decide on the Philippine government’s appeal to stop the investigation altogether.

“We still have our appeal before the Appeals Chamber of the ICC. It may take a long time. It may take several months before they decide on that appeal or even years. We don’t know. But in that appeal, we asked for the suspension of the ICC’s investigation pending the appeal’s outcome,” he said in an interview aired over CNN Philippines.

Guevarra stated that the ruling has serious and far-reaching consequences, as it puts the country in the same league as “rogue nations” that do not respect the rule of law.

“It encroaches on our sovereignty as an independent and law-abiding nation. It tends to humiliate us in the eyes of the international community, and this affront is irreversible and incorrectible even if we eventually win on the merits of our appeal. For these reasons, the Philippines is not legally and morally bound to cooperate with the ICC,” he said.

Justice Secretary Jesus Crispin Remulla, for his part, said the government would not allow the ICC prosecutors on Philippine soil.

“Right now, we’re telling them we can do it (investigate alleged crimes against humanity). Give us your complaint and we will do it. But if they insist on doing it, well good luck to them because they cannot enter our country to impose a rule of law different from ours,” he said. “And our rule of law is run by Filipinos.”

Sen. Francis Tolentino also said the ICC Appeals Chamber decision has “no binding effect” on the country.

Tolentino, who is chairman of the Senate committee on justice and human rights, said the government’s filing of the appeal was actually a “courteous assertion of our sovereignty.”

“It will not clothe the ICC with jurisdiction, as there was none in the first place,” Tolentino said in a statement.

“The ICC should recognize the fundamental pillar of the international legal order, which is sovereignty,” he said.

Don’t defend Duterte

Bayan Muna Chairman Neri Colmenares, who is also a lawyer of families of victims of extrajudicial killings (EJK), has expressed support for the ICC decision.

“Clearly, there is no basis for the claim of the Marcos-Duterte administration that the ICC investigation would create an ‘irreversible’ damage on the Philippines that ‘cannot be corrected,’” Colmenares said.

“In sum, the Philippine request for suspension of the investigation is only intended for delay, and the Appeals Chamber is correct in denying such request. We ask the Appeals Chamber to once and for all deny the appeal of the Marcos-Duterte administration so that the investigation could be concluded and hopefully, the trial of former president Duterte could ensue,” Colmenares said.

He also demanded that the Philippine government refrain from using public funds for the defense of Duterte who, as a lawyer, can defend himself.

“We demand that the Marcos-Duterte administration give him that chance and save the impoverished Filipino people, many of whom are deprived of government legal aid and ayuda, millions in public funds,” he said.

Human Rights Watch (HRW) said the decision of the appeals chamber “doesn’t preclude Philippine authorities to also move forward with their own investigation in the meantime, if they wish to do so.”

“We want to reiterate that the Philippine government has an obligation to cooperate with the court,” said HRW senior Asia researcher Carlos Conde.

Federation of Free Workers (FFW) president Sonny Matula said the ICC decision is a “crucial step” towards ensuring accountability for human rights violations and upholding international justice.

“The ICC’s Appeals Chamber is correct in ruling that the ongoing investigation serves the interests of justice and reiterated the importance of the court’s mandate to protect the rights of victims and bring perpetrators to account,” Matula said.

He urged the Philippine government to cooperate with the ICC. “Ensuring an impartial, transparent and thorough investigation is essential to achieving justice and preventing future human rights violations,” Matula said. –Helen Flores, Neil Jayson Servallos, Mayen Jaymalin, Cecille Suerte Felipe, Paolo Romero

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