MANILA — International Criminal Court (ICC) Prosecutor Karim Khan has rejected the grounds raised by the Philippine government in its appeal before the ICC Appeals Chamber, opposing the country’s move to halt the ICC probe.

In a 59-page submission dated April 4, Khan said the Philippines "failed to show any error in the Decision" of the ICC Pre-Trial Chamber authorizing the resumption of the drug war probe.

“[T]he Prosecution respectfully requests the Appeals Chamber to reject the Appeal and confirm the Pre-Trial Chamber’s authorisation of the resumption of the Prosecution’s investigation in the Situation in the Philippines pursuant to article 18(2) of the [Rome] Statute,” he said.

The Philippine government has been seeking to halt the ICC prosecutor’s probe on the killings connected to the drug war in the country and the alleged death squad in Davao. But the ICC Pre-Trial Chamber, in January this year, authorized the prosecutor to resume his probe.

• ICC approves resumption of probe into PH drug war, Davao killings

Manila filed its appeal last March.

• PH appeals resumption of ICC probe into drug war killings

In its appeal, the Philippines said the ICC no longer had jurisdiction over the country when it launched its probe in September 2021 since the withdrawal from the ICC took effect in March 2019.

• ICC Pre-Trial Chamber greenlights probe on PH drug war, Davao killings

But Khan said what matters is the period when the alleged crimes were committed, and not when the investigation was opened.

“In the Philippines situation, the Prosecution was authorised to investigate Rome Statute crimes allegedly committed in the Philippines from 1 November 2011 until 16 March 2019— that is, when the Philippines was a State Party. That the Philippines was not a State Party when the investigation was opened (on 15 September 2021) is immaterial and does not the deprive the Court of jurisdiction over crimes allegedly committed during the temporal scope of the investigation,” he said.

The Philippines then argued that the ICC cannot compel it to cooperate in its probe since it is no longer a state party to the international tribunal.

Both Solicitor General Menardo Guevarra and Justice Secretary Jesus Crispin Remulla had challenged the ICC prosecutor how he can continue his investigation without the compulsory processes, such as subpoenas, that only Philippine authorities can issue.

But for Khan, this is a misinterpretation of the ICC Pre-Trial Chamber’s decision since the Chamber did not rule that the country is obliged to cooperate.

He pointed out that cooperation is not a precondition for the ICC to exercise its jurisdiction.

Khan said the refusal of a state to cooperate with the ICC does not deprive it of jurisdiction over a situation it is investigating.

He also refuted the Philippine government's claim that the ICC prosecutor should bear the burden of proof that there is no basis for the deferral of the ICC probe.

He said it is the Philippine government which is in fact moving for the deferral of the proceedings.

The ICC Prosecutor defended the ICC Pre-Trial Chamber's decision to check whether Philippine domestic probes cover the same individuals and the same conduct which are the subject of the ICC probe.

The government had said this should only apply to cases which have advanced to another stage.

But Khan said the ”same person/same conduct" test was used in other cases similar to the Philippine situation such as those in Kenya, Georgia and Burundi.

He noted the deficiencies in the lists of Philippine probes submitted to the ICC--from those before the National Bureau of Investigation (NBI) to the Philippine National Police-Internal Affairs Service (PNP-IAS).

He pointed out that the Philippine government is raising, for the first time on appeal, that there is a "formal mandatory progression" from PNP-IAS probes to the DOJ review panel to the NBI, as part of its argument that the information it submitted should not be treated in isolation but rather as part of an on-going process.

The Pre-Trial Chamber had earlier found that IAS probes do not lead to criminal probes and cannot be said to “mirror” the international tribunal’s investigations.

Among the other Pre-Trial Chamber findings that Khan agreed with—that the country’s probes did not extend to, are the following:

• any high-ranking official
• alleged killings by private individuals
• alleged killings in Davao

The Pre-Trial Chamber, he said, is correct that domestic probes did not cover the same range and scope of the ICC probe.

Khan also refuted the Philippine government's claims that the ICC Pre-Trial Chamber did not consider the country’s willingness and ability to genuinely carry out probes.

He said there was no need to assess willingness and ability to conduct probes because the Philippines was assessed to be "inactive."

As to the government’s claims that the Philippine situation was not grave enough (no widespread or systematic attack) to warrant an ICC probe, Khan enumerated the thousands of crimes allegedly committed under the Philippine drug war--from killings to planting of evidence to murder and torture.

“Nothing about these crimes, committed in large part by law enforcement personnel entrusted with protecting citizens from violence, suggests that the potential cases before the Court are of marginal gravity. To the contrary, they are extremely serious, and appear to have been at the very least encouraged and condoned by high-level government officials, up to and including the former President.”

Meanwhile, Justice Secretary Jesus Crispin Remulla said he was not surprised with the decision of ICC.

"Expected 'yun, wala na. I think the president (Ferdinand Marcos, Jr.) has said it — we will not engage with the ICC anymore and we will not honor any inquiry or any trials that they want to conduct in Philippine territory or involving the country. We will not allow our justice system to be use by them," Remulla said.

He also said the government will not allow the ICC to enter the country to investigate if they intend to "take over" the country's legal system.

"If their intention is to take over our legal system, we will not allow them…so I will welcome them to the airport for their flight out,” Remulla added.

— with a report from Johnson Manabat, ABS-CBN News

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