ICC Reopens Investigation into the Philippines

By: Louis Golden BL

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Earlier this year, the International Criminal Court (“the ICC”) expressed its intention to reopen an investigation into crimes against humanity which may have been committed during the “war on drugs” waged by former President of the Philippines, Rodrigo Duterte. The investigation which was initially opened in early 2018 was suspended in 2021.  Last year, however, Karim Khan, the ICC’s prosecutor, said that the delay was unwarranted.

During Duterte’s government’s crackdown on drug users, thousands of people were killed. The investigation was suspended by the ICC in circumstances where a request was submitted by the Philippines government in which it undertook to carry out its own review. The investigation was reopened this year after a request was submitted by the Prosecutor.  It was reopened in circumstances under which the ICC said that it was not satisfied that the Philippines government was “undertaking relevant investigations”.

The Philippines withdrew from the jurisdiction of the ICC in March 2019, and the ICC investigation only has jurisdiction to look into crimes committed before this withdrawal. The government of the Philippines appealed the decision to reopen the investigation. That appeal is pending.

The ICC, established in 2002, is charged with investigating and prosecuting individuals for war crimes, crimes against humanity, genocide, and the crime of aggression. The ICC has authority, under the Rome Statue, to investigate nationals of Member States, and to investigate and prosecute crimes committed within the territories of Member States. The ICC can also investigate matters which have been referred to it by the United Nations Security Council.

The ICC is based in the Netherlands and is primarily funded by states which are parties to the Rome Statute.  It also receives voluntary contributions from other sources.  The Rome Statute, the legal basis which creates the ICC, was adopted in 1998.  The ICC does not have the power to prosecute individuals who were under 18 at the time of the alleged crime. It does, however, have the power to prosecute generals, politicians, and even heads of state for crimes perpetrated by someone under their control or command.

Enforcement is one of the Court’s greatest challenges. Because the Court relies on states to assist in arrests of people who are the subject of ICC investigations, it is not uncommon for arrest warrants issued by the ICC to exist for years without ever being executed.

Article 15 of the Rome Statute gives the ICC the power to conduct these investigations.  The Philippines was a party to the Rome Statute from November 2011 until it removed itself in March 2019. The ICC, therefore, has jurisdiction to investigate and prosecute crimes that took place while the Philippines was a State Party; as such, it has no jurisdiction to investigate alleged crimes which took place after the 17th of March 2019.

The war on drugs waged by former President Rodrigo Duterte’s government resulted, according to Human Rights Watch, in thousands of killings.  Most of the victims were from poor urban communities.  Human Rights Watch also found that the police regularly falsified evidence to justify the killings. In the period during which Duterte was president, the United Nations estimates that 8,663 people were killed in the war on drugs, although some human rights groups operating within the Philippines estimate that the real number is substantially higher.

Having authorised the investigation, the ICC was informed by the government of the Philippines that it was itself investigating matters, and a deferral of the ICC’s investigation was requested pursuant to Article 18(2) of the Rome Statute. That provision states that having been informed by the ICC of an investigation, a state may, within one month of receiving notification:

“inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.”

The authorities in the Philippines have brought charges against a number of individuals as a result of their own investigation. Hitherto, four former police officers have been found guilty of three murders. Most recently, a former police officer was found guilty of murdering two teenagers, aged 14 and 19.  The former police officer, who was already serving a sentence for torturing and planting evidence on the same victims, was convicted in March of their murders.

Despite the authorities in the Philippines prosecuting these three murders, several thousand remain unsolved.  It was submitted to the ICC by the Prosecutor’s Office, that the investigation should be resumed in circumstances where the investigation being carried out by the Philippines government was inadequate, and did “not sufficiently mirror the Court’s investigation for the purpose of article 18(2)”.

The Prosecutor sought permission from the Court, pursuant to Article 15(3) of the Rome Statute, to re-open an investigation into the actions of the Philippines Government. The Prosecutor argued that:

“there is a reasonable basis to believe that the Crime Against Humanity of Murder was committed from at least 1 July 2016 to 16 March 2019 in the context of the Philippine government’s “war on drugs” (“WoD”) campaign. Information obtained by the Prosecution suggests that state actors, primarily members of the Philippine security forces, killed thousands of suspected drug users and other civilians during official law enforcement operations.”

The Pre-Trial Chamber authorised the commencement of an investigation, on the part of the ICC, into crimes committed in the Philippines, falling within the jurisdiction of the Court. It said:

“the Chamber concludes that there is a reasonable basis for the Prosecutor to proceed with an investigation, in the sense that the crime against humanity of murder appears to have been committed, and that potential case(s) arising from such investigation appear to fall within the Court’s jurisdiction…”

The Chamber went on to say that it was:

“appropriate to authorise the investigation to extend to any crime within the jurisdiction of the Court, limited by the temporal, territorial and factual parameters of the situation as defined in the Article 15(3) Request.”

It also noted that:

“the various domestic initiatives and proceedings relied on by the Philippines do not amount to tangible, concrete and progressive investigative steps being carried out with a view to conducting criminal proceedings, in a way that would sufficiently mirror the Court’s investigation as authorised in the Article 15 Decision.”

From this juncture, there are two possible routes for the investigation to take.  First, it is possible that the Prosecutor may decide on the basis of a lack of evidence not to proceed with any prosecution. If he makes such a decision, it can be reviewed by the Pre-Trial Chamber of the ICC.  Alternatively, the Prosecutor may decide that there is sufficient evidence to sustain prosecutions and, if so, the ICC may approve and issue arrest warrants. Given, however, that the Court relies on the assistance of states to execute arrest warrants, it is possible that it will be some time before any warrant is executed. If executed, once an individual who has been the subject of a warrant or summons appears before the Court, it must be established that “substantial grounds” exist to support a prosecution. If this is established, the case will proceed to trial.

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