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SolGen: ICC may indict gov’t execs in probe on drug war

Solicitor General Menardo Guevarra on Thursday said the International Criminal Court’s prosecutor could proceed with an indictment of certain individuals if there is sufficient evidence.

This was predicated, however, on the possibility that the appeals of the Philippines against a resumption of the ICC drug war probe are dismissed, Guevarra hinted.

Meanwhile, the ICC has set July 18 for the release of a ruling on the appeal of the Philippine government against its decision to allow the court’s prosecutor to proceed with the probe on the killings in the drug war of former President Rodrigo Duterte and the so-called Davao Death Squad.

“If it is dismissed, the ICC prosecutor will be authorized to resume his investigation into the Philippine situation and he may indict certain individuals based on whatever evidence he may be able to gather,” Guevarra said.

Guevarra made the statement as the ICC’s appeals chamber is expected to issue next week its decision on the Philippines’ appeal.

In a three-page order signed by Presiding Judge Marc Perrin de Brichambaut, the appeals chamber said; “Judgment in the above appeal will be delivered in open court on Tuesday, 18 July 2023 at 10h00.”

Asked if Duterte and other officials of his administration may be among those who could be indicted, Guevarra said, “Anyone may be charged with enough evidence.”

During the previous administration’s controversial drug war, at least 6,200 suspects were allegedly killed in police operations based on government records. But human rights groups the actual death toll could be anywhere from 12,000 to 30,000.

However, Guevarra insisted that the country’s domestic institutions were “investigating and prosecuting the abuses” committed in the drug war.

“It will not change the fact that our own domestic institutions are investigating and prosecuting abuses committed in relation to the government’s campaign against illegal drugs,” said Guevarra, who also served as head of the Department of Justice under Duterte’s watch.

“We can discharge this responsibility with or without the ICC,” he added.

Nonetheless, Guevarra expressed optimism that the Philippines has a “fair chance” of getting a favorable ruling.

Duterte pulled the Philippines out of the Hague-based tribunal in 2019 after it began a preliminary probe into his drug war, followed by the launch of a formal inquiry later that year.

The investigation was suspended in November 2019 after the Philippine government said it was re-examining several hundred cases of drug operations that led to deaths at the hands of the police, private hitmen, and vigilantes.

ICC prosecutor Karim Khan had asked to restart the inquiry, saying the Philippine government had not provided evidence it was carrying out thorough inquiries.

The ICC authorized the reopening of the inquiry in January 2023.

In an appeals brief filed in March, the Philippine government sought a reversal of the decision of the ICC to reopen an inquiry.

Duterte, for his part, has continuously dismissed the ICC probe.

“On Tuesday, 18 July 2023, at 10:00 (The Hague local time), the Appeals Chamber of the International Criminal Court (ICC) will deliver, in open Court, its judgment on the appeal of the Philippines Government against ICC Pre-Trial Chamber I’s authorization, pursuant to Article 18(2) of the Rome Statute, to resume the investigation of the Prosecutor,” the international tribunal said in a media advisory late Wednesday.

Five judges comprise the Appeals Chamber, namely Presiding Judge Marc Perrin de Brichambaut, Judge Piotr Hofmański, Judge Luz del Carmen Ibáñez Carranza, Judge Solomy Balungi Bossa, and Judge Gocha Lordkipanidze.

The Philippine government appealed the decision of the ICC Pre-Trial Chamber in January this year to allow the resumption of the probe.

The Pre-Trial Chamber had said it was “not satisfied that the Philippines was undertaking relevant investigations that would warrant a deferral of the Court’s investigations on the basis of the complementarity principle.”

The Philippine government, in its appeal filed in March this year, said the ICC probe lacked legal foundation and reiterated its argument that the ICC no longer has jurisdiction over the Philippines since it had already withdrawn from the Rome Statute.

The Philippines also insisted on its position that the ICC Pre-Trial Chamber failed to consider the Philippine government’s willingness and ability to carry out its own investigations.

Under the complementarity principle, the ICC would only step in if a state is unwilling or unable to genuinely carry out its own probes.

Responding to the appeal, ICC Prosecutor Karim Khan said the Pre-Trial Chamber was correct in authorizing the resumption of the probe despite the Philippines’ jurisdiction objection because what matters is the period when the alleged crimes were committed — when the Philippines was still a party to the Rome Statute which created the ICC — and not when the investigation was opened.

He also cited grounds why the ICC should step in: the Philippines, according to him, is not probing the same persons for the same conduct which the ICC seeks to investigate.

The investigations the Philippines presented to the ICC so far did not extend to high-ranking officials, including Duterte and former Philippine National Police chief-now Senator Ronald dela Rosa who have been previously mentioned in prior ICC Prosecutor and Pre-Trial Chamber rulings, Khan said.

Neither were alleged killings by private individuals nor those committed in Davao the subject of probes in the country.

The ruling from the Appeals Chamber on July 18 is expected to settle these issues.

If the authorization to proceed with the probe is affirmed, the ICC Prosecutor will continue with its investigation.

The Philippine government had sought a temporary suspension pending the resolution of its appeal but that was denied by the ICC Appeals Chamber.

Under the Rome Statute, the Prosecutor, after the start of the probe, could apply for a warrant of arrest with the Pre-Trial Chamber.

The Pre-Trial Chamber could issue the arrest warrant if there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the ICC and if the arrest is necessary either to ensure his appearance during the trial, or to ensure that the person will not obstruct or endanger the investigation, or to prevent the continuing commission of the crime.

The ICC could then request a state party to the Rome Statute to effect the arrest.

In the alternative, the ICC may issue a summons requiring the person to appear.

The trial at the ICC, however, can only proceed if the accused is present.

The July 18 announcement of the Appeals Chamber’s ruling will be livestreamed and is open to attendance by journalists for coverage, members of the diplomatic corps, NGOs, and other members of the public in the tribunal’s seat at The Hague in The Netherlands.

Duterte canceled the Philippines’ membership in the Rome Statute, ICC’s founding treaty, in March 2018. It took effect a year later. — Rey E. Requejo

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