Explainer-Can ICC’s Philippines drugs war probe make progress if Manila cuts contact?

By Karen Lema and Neil Jerome Morales

MANILA (Reuters) – Philippines President Ferdinand Marcos Jr said this week he would cut off contact with the International Criminal Court (ICC) after it rejected his government’s request to suspend a probe into thousands of killings during his predecessor’s “war on drugs”.

WHAT IS THE STATUS OF THE ICC CASE?

The ICC, a court of last resort, approved in September 2021 a formal investigation into possible crimes against humanity allegedly committed under the leadership of then President Rodrigo Duterte in the context of his “war on drugs”.

It suspended its probe in November 2021 at the request of the Philippines after Manila said it was carrying out its own investigations.

The ICC investigation was reopened in January 2023 and on March 27 the ICC rejected Manila’s request to suspend it pending an appeal questioning the court’s jurisdiction and authority. The following day, Marcos said he would “disengage” with the ICC.

Asked about the remarks of Marcos, the ICC said it does not comment on ongoing investigations.

WHAT DOES MARCOS MEAN BY DISENGAGING WITH THE ICC?

The Philippines has said the ICC should not impose on the country, which is no longer a signatory to the international tribunal after Duterte officially pulled out of the court in 2019, accusing it of prejudice.

It is not clear even among some government officials what cutting contact meant or whether the Philippines will completely drop its appeal against the ICC investigation.

“Disengaging could mean many things, and that is what I want to clarify with the president,” Solicitor General Menardo Guevarra, who was justice minister under Duterte, told news channel ANC on Thursday.

Earlier this month, Manila announced it had hired a London-based lawyer, who specialises in international criminal law, to help with its appeal. Guevarra said the filing of the appeal was not a recognition of the ICC’s jurisdiction.

“We are doing this because this is precisely provided in the Rome statute if you wish or contest to challenge the jurisdiction of the court or the admissibility of the case, then this is the process,” he said.

The Philippines has dissociated itself from parts of a summit declaration on democracy backing accountability for human rights abusers and acknowledging the importance of the ICC.

CAN THE ICC PROCEED WITHOUT GOVERNMENT COOPERATION?

The ICC says it can investigate crimes committed while the Philippines was a member, up until 2019.

The ICC could go ahead with its investigation without government help by obtaining evidence from other sources like victims, open source records, and from other entities like the United Nations, said human rights lawyers.

Drug war victims or their families can testify in person in the Hague, or even virtually, and the prosecutor can gather documentary evidence like official government pronouncements and public speeches, said lawyer Neri Colmenares.

WHAT POWERS DOES THE ICC HAVE TO PROSECUTE?

The ICC, upon the request of its prosecutor, can issue summons or a warrant of arrest to try to ensure those accused of wrongdoing would appear at trial, and its 123 member countries can assist in enforcing the warrants.

Member states are obliged to comply with the court’s requests to provide assistance in relation to its investigations or prosecutions.

There have also been instances where non-member states also assisted the ICC. U.S. support was critical in the transfer to the court of ICC suspects Bosco Ntaganda, a Congolese rebel leader, in 2012 and Dominic Ongwen, a Lord’s Resistance Army commander, in 2015.

WHAT HAS THE PHILIPPINE INVESTIGATION YIELDED SO FAR?

No serious investigation has been taking place in the Philippines, according to Human Rights Watch, which has so far documented two court convictions out of thousands of drug war killings.

Police say they killed 6,200 suspects during anti-drug operations that ended in shootouts but reject accusations by human rights groups of systematic executions and cover-ups. Activists say there were thousands more killings of drug users in mysterious circumstances that were not police operations.

Activists accuse Duterte of inciting violence in dozens of public speeches but insists he told police to kill only in self-defence.

“In many of these cases, evidence has been lost. There doesn’t seem to be any political will within the Philippine government to seriously investigate,” Phil Robertson, deputy Asia director at Human Rights Watch, told CNN Philippines.

Police data showed 46 people have been killed during anti-drug operations between June 30, 2022, when Marcos took office, to November, way below the estimate of the University of the Philippines’ Third World Studies Center, whose research programme tallied 127 people killed in “drug war” incidents from July 1 to November 7.

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