ICC appeals chamber junks PHL bid to suspend probe

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THE Philippine government has suffered another setback before the International Criminal Court-Appeals Chamber, which denied its request to suspend the implementation of the Pre-Trial Chambers’  (PTC) decision of January  26, 2023,  authorizing the resumption of the investigation on the abuses and deaths during the Duterte administration’s campaign on illegal drugs.

In an eight-page decision, the ICC-Appeals Chamber held that the Philippine government through the Office of the Solicitor General (OSG) failed to raise “persuasive reasons” and arguments in support of its request for ordering a suspensive effect.

Manila failed, it said, to provide a basis for its claim of “far-reaching and inimical consequences” should the appeals chamber allow the investigation to proceed even before it decides on the merit of its main appeal.

“Secondly, the Appeals Chamber observes that apart from merely referring to ‘far-reaching’ and ‘inimical consequences’ or implications of the Prosecutor’s activities on suspects, witnesses and victims, the Philippines fails 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 decision read.

The Philippine government filed last February 6, 2023 a notice of appeal before the ICC-Appeals Chamber seeking suspension of the implementation of the January 26 decision pending the final resolution on the merit of its appeal.

Solicitor General Menardo Guevarra argued that the activities of Prosecutor Karim Khan in relation to his investigation into the country’s situation “would lack any legal foundation and encroach” on the Philippine’s sovereignty.

The OSG further contended that should the ICC proceed despite the absence of jurisdictional  basis, “it’s mandate would be adversely affected due to the implications such acts would have for those affected by the Court’s operations, in particular suspects, witnesses and victims.”

It also stressed that the resumption of the investigation, given its broad scope, “will necessarily have far-reaching and inimical consequences.”

On March 13, 2023, the Philippines formally filed its appeal brief seeking the reversal of the January 26 decision of the pretrial chamber.

In denying the Philippines’s application for suspensive effect filed on February 6,  the ICC-Appeals Chamber noted that it failed to explain how the supposed lack of jurisdiction or legal basis for the resumption of the investigation pending the resolution of its March 13 appeal would “defeat its very purpose and create irreversible situation that could not be corrected.”

The Appeals Chamber also pointed out that the Philippines can continue its own  investigation on the deaths related to the anti-illegal drug war even as the  ICC is conducting its own proceedings.

“For the foregoing reasons, the Appeals Chambers 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’,” the decision stated.

The Appeals Chamber, however, noted that its decision denying the Philippines’s application for suspensive effect is “without prejudice”  to its eventual decision on the merits of the latter’s March 13 appeal.

The Philippine government has maintained that it is no longer under the ICC’s jurisdiction after it officially withdrew its signature to the Rome Statute on March 16, 2018 upon the directive of then President Duterte.

The Rome Statute is the treaty that established ICC.

ICC out to humiliate PHL govt

Meanwhile, Guevarra expressed disappointment over the government’s latest setback before the ICC, insisting that this would have “far-reaching consequences” for the country.

With the denial of its plea for suspensive effect, the SolGen said there is no more obstacle for the prosecutor to proceed with its investigation on the anti-drug war campaign during the Duterte administration.

“It is an indictment against our entire legal and judicial system, and it encroaches on our sovereignty as an independent and law-abiding nation,” the chief government counsel said.

“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,” he added.

Guevarra explained the ICC’s denial of the government’s plea for the suspension of the investigation “places us in the same class of rogue nations where the rule of law is not respected.”

“We are saddened by this latest development. The decision of the ICC Pre-Trial Chamber authorizing the ICC Prosecutor to proceed with his investigation is still on appeal with the appeals chamber. We don’t know when this appeal will be resolved, maybe in a few months, maybe it will take years.

“Yet, the ICC appeals chamber has denied our reasonable request to suspend the investigation until the issues of jurisdiction and admissibility of the Philippine situation have been resolved to our satisfaction,”  Guevarra pointed out.

The OSG,  in seeking the reversal of the January  26 decision of the ICC-PTC,  argued that the latter erred in finding that the ICC could exercise its jurisdiction on the basis that the Philippines was a State party at the time of the alleged crime and that the ensuing obligations of the Statute remain applicable, notwithstanding Manila’s withdrawal from the Statute.

It also said the pretrial chamber made an error in its admissibility assessment under Article 18 concerning the situation in the country.

Finally, the OSG said the PTC erred in not considering all Article 17 factors.

Article 17(1) of the Rome Statute declares  that a case is inadmissible in its tribunal if it is being investigated or prosecuted by a State which has jurisdiction over it, and could only open one if the State is unwilling or unable genuinely to carry out the investigation or prosecution.

On the other hand, Article 17(2), also held that an inquiry can be done if there is “unwillingness by a State or country to participate, if the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court, including crimes against humanity.”

Earlier, the DOJ said investigation on the drug war-related deaths is ongoing and that there  are 290 cases under different stages of investigation, prosecution and in court.

Meanwhile, Kristina Conti, National Union of People’s Lawyers-National Capital Region (NUPL-NCR) secretary-general and assisting counsel for victims of the war on drugs,   said it is now “all- systems go” for the ICC prosecutor’s probe into the deaths related to the Duterte anti-illegal drug campaign.

“So far, the ICC proceedings is on track and aligned with our search for genuine justice for the victims of grave rights violations,” Conti said.