Philippines not required to cooperate with ICC probe – SolGen

MANILA, Philippines — The Philippine government has expounded on its position that the country is not required to cooperate with the ongoing investigation of the International Criminal Court (ICC) prosecutor.

Solicitor General Menardo Guevarra, along with other counsels for the Philippines, submitted on May 16 the country’s 12-page reply to the prosecutor’s comment on the ongoing appeals proceedings.

In the said document, the government explained its position that the preliminary examination previously conducted by the ICC prosecutor cannot trigger a key provision in the Rome Statute, the treaty that created the ICC.

Article 127, Paragraph 2 of the Statute provides that a country’s withdrawal from the treaty “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective.”

In February 2018, then ICC prosecutor Fatou Bensouda announced that she had initiated a preliminary examination into alleged crimes committed in relation to the government’s so-called war against illegal drugs.

It prompted then president Rodrigo Duterte to order the country’s withdrawal from the Rome Statute.

In its latest submission, the Philippine government claimed that the conduct of preliminary examination cannot trigger Article 127(2) because “the terms ‘opening’ and/or ‘commencement’ are strictly applied to formal investigations.”

The formal investigation was authorized in 2021, two years after the Philippines’ withdrawal took effect in 2019.

The government maintained that the initial assessment conducted by the prosecution during the preliminary examination phase is a limited exercise that is “little more than a management tool.”

“The decision to open a preliminary examination is therefore no more than a transitory step, which is only really given any value by the fact that it is often used as a tool by the Prosecution to advance other policy objectives,” read the submission.

“Noting that there is no obligation for the Prosecution to announce the ‘opening’ of a preliminary examination, the announcement of its intention to do so is accurately characterized as a ‘performative speech’, which is issued as a warning shot as and when the Prosecution deems it appropriate or beneficial to advance its own internal policies,” it added.

The submission also expounded on the Philippine government’s position regarding issues related to the admissibility of the case.

The government repeatedly maintained that the ICC no longer has jurisdiction over the alleged crimes committed even during the time when the country was a member of the Rome Statute, contrary to the position of the ICC prosecutor and other legal experts.

A provision of the Rome Statute also clearly states that “a State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued.”

The Philippines is appealing a Jan. 26 decision of the ICC’s Pre-Trial Chamber I that authorized Karim Khan, the current prosecutor, to resume the investigation into the alleged crimes against humanity committed in relation to the so-called Davao death squad and the Duterte administration’s deadly campaign against illegal drugs.