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Civil society welcomes the resumption of the ICC investigation into the situation in the Philippines, Government appeals judges decision

26 January 2023

Updated on 23 March 2023

On 26 January 2023, the judges of the International Criminal Court (ICC) authorised the ICC Prosecutor to resume the investigation into the Situation in the Philippines, into crimes within the jurisdiction of the Court allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019.

ICC Pre-Trial Chamber I (PTC I) decided that, on the basis of the Rome Statute principle of complementarity (pursuant to article 18(2) of the Statute), domestic authorities in the Philippines are not undertaking relevant investigations that would warrant the deferral of the ICC investigation to the Philippines authorities, as they had requested in their submission to the Court on 18 November 2021.

On 13 March 2023, the Philippines government appealed the judges’ decision to resume the investigation.

Following the Appeals submitted by the Philippine government, a group of victims requested to participate in the appeals proceedings to present their views and concerns, and the Office of the Public Counsel for Victims (OPCV) requested to appear before the Appeals Chamber to represent the general interests of the victims, as provided for by Article 68(3) of the Rome Statute (see footnote).

On 21 March, the Appeals Chamber instructed the ICC Victims Participation and Reparations Section (VPRS) to collect and transmit to the Appeals Chamber representations from any interested victims and victim groups and submit a report by 22 May 2023. The Appeals Chamber also allowed the OPCV to submit written observations on the appeal brief by 18 April 2023.

While deciding on the merit of the appeal, the Appeals Chamber will decide also on whether the appeal suspends the Prosecutor’s investigation.


CIVIL SOCIETY REACTIONS #NGOVoices:

Civil society in The Philippines has been crucial to first achieve the ratification of the Philippines to the Rome Statute, as well as to document crimes committed and assist victims and affected communities. Here below the Coalition for the ICC makes available the #NGOVoices reacting to the judicial developments on the Philippines between 26 January and 23 March:

“The decision of the ICC Pre Trial Chamber I to proceed with the investigation of the crimes against humanity in the Philippines is a much-awaited decision,” said Aurora Parong, co-chairperson of the Philippine national Coalition for the ICC. “The Philippine government should now realize that diplomatic runs and rhetoric on justice will not stop the International Criminal Court (ICC) from doing its work to investigate crimes within its jurisdiction and deliver justice for serious crimes in international law,” the statement reads.

Responding to the appeals by the Philippine government, Dr. Aurora Parong said: “The appeal to the ICC of Solicitor General Menardo Guevarra, on behalf of the Philippine government, to reverse the ICC Pre Trial Chamber I’s decision to proceed with the investigation on the Philippine situation is another delaying tactic that counters the quest for justice of the families of victims of extrajudicial killings due to the violent "war on drugs". See the full statement here.

Attorney Ray Santiago, co-chairperson of the Philippine national Coalition for the ICC, recalled that the Philippines has an obligation to cooperate with the Court.

The Children’s Legal Rights and Development Center, Inc. and the In Defense of Human Rights and Dignity Movement welcomed the resumption of the ICC investigation: “This development is one step towards the attainment of justice for all the victims,” they expressed in a joint statement.

After the Philippine government’s appeals, IDefend stated that “the move defines the real response of the government to the international community’s inquiries and explains why no complementarity can be expected from the justice system in the country.” In their statement, they add that “the ICC should take this as a signal to dismiss government's appeal for reconsideration and continue with its investigation.

“The ICC’s action is an important step toward accountability for the “drug war” killings in the Philippines, which continue to occur on a daily basis and where activists and journalists face threats, harassment, and even death for speaking out,” expressed Carlos H. Conde, Senior Philippines researcher at Human Rights Watch (HRW). “President Ferdinand Marcos Jr. should reverse his predecessor’s stance and actively cooperate with the ICC investigation,” Conde added in a written dispatch. HRW also published a Q&A document.

️Ruben Carranza, senior expert of the International Center for Transitional Justice, expressed that the Philippines' argument that the drug war killings were not grave enough to allow the resumption of ICC's probe is 'weak'.

The Coalition for the ICC calls on the Philippines government and other states to cooperate with the International Criminal Court and the Office of the Prosecutor.


Background:

The Philippines became a State Party to the Rome Statute of the International Criminal Court on 1 November 2011, therefore accepting the Court’s jurisdiction to investigate alleged crimes included in the Rome Statute.

The OTP has been examining the situation in the Philippines since February 2018, upon the Prosecutor’s own initiative under Article 15 of the Statute.

On 17 March 2018, the Philippines government, whose president at the time was Rodrigo Duterte, decided to withdraw from the Rome Statute. The withdrawal took effect one year later, on 16 March 2019.

In June 2021, the Prosecutor announced the completion of the preliminary examination, and submitted a request for authorization to open an investigation to the Judges. On 15 September 2021, Judges formally authorized the ICC Prosecutor’s to open an investigation into crimes within the jurisdiction of the Court allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019.

In November 2021, the Philippine government requested the Prosecutor to defer the investigation into the situation to the Philippine national authorities. Upon receiving the request, the ICC Prosecutor temporarily suspended the investigation. In June 2022, ICC Prosecutor Khan sought authorization from the Court’s judges to resume the investigation.

While the Philippines is no longer a member of the ICC, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines before the withdrawal took effect.

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Footnote: Article 68.3 of the Rome Statute: “Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.”