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ICC gives Manila more time to appeal drug war probe

The International Criminal Court has granted the Philippine government’s plea for more time to file an appeal over an ICC Pre-Trial Chamber’s ruling allowing the investigation on the killings in the drug war in the country to resume.

In a February 17 decision, the ICC Appeals Chamber gave the Philippines until Monday, March 13, 2023 at 1600 hours Central European Time (4 p.m. in the Netherlands, 11 p.m. in Manila) to file an appeal brief that would contain the government’s arguments against the resumption of the ICC probe.

“The Appeals Chamber considers that the Republic of the Philippines has provided valid reasons in support of its application. In particular, it notes the new administration’s logistical and administrative constraints,” ICC Appeals Chamber Presiding Judge Marc Perrin de Brichambaut said in the decision.

The development comes a day after President Ferdinand Marcos Jr. said on Saturday that the Philippines will not cooperate with the ICC because it has a “good” and working justice system.

Speaking to reporters in Fort del Pilar, Baguio City, Mr. Marcos said the ICC has no jurisdiction over the Philippines, which he emphasized is a “sovereign nation.”

“My position has not changed. I have stated it often, even before I took office as president, that there are many questions about (ICC’s) jurisdiction, and what we in the Philippines regard as an intrusion into our internal matters and a threat to our sovereignty,” he said.

The government, led by Solicitor General Menardo Guevarra, notified the ICC Appeals Chamber on Feb. 3 of its decision to appeal the whole decision of the ICC Pre-Trial Chamber (PTC) to allow the ICC

Prosecutor to resume its probe on the drug war killings in the Philippines, as well as deaths connected to the Davao Death Squad.

The appeal brief was supposed to be due on Sunday, Feb. 19. But on Wednesday, Feb. 15, the government asked for an additional 20 days to file the brief, citing the election of a new President, Ferdinand Marcos Jr., and the difficulties of “newly appointed heads of government agencies” in gathering “comprehensive data and relevant records due to logistical and administrative constraints.”

“The Office of the Solicitor General (OSG) awaits a reply from other relevant government agencies on its request to submit a status update on the pending investigations related to crimes committed on the Philippine territory between 1 November 2011 and 16 March 2019 in the context of the ‘war on drugs’ campaign. It has received responses and documents on separate occasions, but needs additional time to assess the relevance of these documents,” it said (See full story online at manilastandard.net)

The OSG added it intends to hire an external counsel or consultant to assist in its appeal but will have to comply with internal requirements such as seeking approval for funding.

The ICC Appeals Chamber considered the Philippine government’s reasons as “good cause,” which warranted the extension.

However, ICC Prosecutor Karim Khan on Thursday opposed the government’s plea to suspend the ICC PTC’s decision while the Philippine government appeals the ruling.

The suspension would have the effect of suspending the ICC Prosecutor’s probe while the appeal is pending, Khan said.

He pointed out that while the Appeals Chamber has the discretion to do so, a suspensive effect is only granted as an exception to the rule in certain cases if the implementation of the ruling 1) would create an irreversible situation; 2) would lead to consequences that would be very difficult to correct and may be irreversible; or 3) could potentially defeat the purpose of the appeal.

“The Philippines has not provided any argument substantiating its request for suspensive effect, nor shown the implementation of the Decision would create an irreversible situation or that would be very difficult to correct or that could potentially defeat the purpose of the appeal. No such grounds for granting suspensive effect exist,” Khan stressed.

While the Appeals Chamber decides on the Philippine government’s appeal, the Philippines can continue with its domestic proceedings regardless of if the ICC Prosecutor continues its probe or not, Khan said.

Should the government win its appeal, the ICC Prosecutor can just discontinue the probe, he added, stressing the absence of any harm.

No reasons were cited by the Philippine government in its request for a suspensive effect of the ICC Pre-Trial Chamber ruling.

Earlier, lawmakers in the House of Representatives led by former President and current Senior Deputy Speaker Gloria Macapagal-Arroyo filed a resolution urging the House of Representatives to declare its “unequivocal defense” of former President Rodrigo Duterte.

Duterte’s drug war campaign has led to at least 6,000 drug suspects killed in police operations, while thousands more were slain vigilante-style by unknown killers accused of working for authorities.

House Resolution No. 780 praised Duterte for improving the country’s peace and order situation, particularly on his “remarkable accomplishments” in his campaigns against illegal drugs, insurgency, separatism and terrorism, corruption in government, and criminality.

Arroyo asserted Friday that the ICC cannot pass judgment on Duterte because the illegal drug problem is an internal problem that the Philippine government had to address.

Another lawmaker, Surigao del Sur 2nd District Rep. Johnny Pimentel, said there is no clear evidence linking Duterte to the extrajudicial killings.

Both lawmakers argued the ICC no longer has jurisdiction over the Philippines since it already withdrew from the ICC, a sentiment echoed by no less than President Marcos.

However, Article 127 of the Rome Statute, which created and governs proceedings at the ICC, requires states who withdraw from the ICC to continue cooperating with the international tribunal.

“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,” it states.

“Its withdrawal 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, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective,” it adds.

The Philippines ratified the Rome Statute in November 2011.

Former ICC Prosecutor Fatou Bensouda announced the opening of a preliminary examination on the situation in the Philippines in February 2018, prompting then-President Duterte to withdraw the country from the ICC, which became effective more than a year later in March 2019.


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