PH gov’t appeals resumption of ICC drug war probe

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Metro Manila (CNN Philippines, March 15) — The Philippine government has requested the International Criminal Court (ICC) to reverse its decision to reopen the investigation into the Duterte administration’s war on drugs.

In its 50-page appeal filed with the ICC Appeals Chamber on Tuesday, the government requested to suspend the ruling that authorized the resumption of the probe and to reverse the decision.

“The Philippine Government respectfully requests that the Appeals Chamber grant suspensive effect pending resolution of this appeal, reverse the ‘authorization pursuant to Article 18 (2) of the Statute to resume the investigation,’ and determine that the Prosecution is not authorized to resume its investigations in the situation in the Republic of the Philippines,” it read.

The appeal—signed by Solicitor General Menardo Guevarra, five assistant solicitors general, and an international criminal lawyer—also indicated that ICC Prosecutor Karim Khan "would lack any legal foundation" and his investigation would violate the country’s sovereignty.

"The resumption of the Prosecution's investigation pending resolution of this appeal would therefore defeat its very purpose and create an irreversible situation that could not be corrected. The suspension of the Prosecution's investigation into the Situation in the Republic of the Philippines is therefore warranted pending the expeditious resolution of this appeal," it added.

The government has reiterated its stance that the Philippines has withdrawn from the Rome Statute, insisting that the ICC has no jurisdiction over the country. It referred to the Rome Statute's Article 18 (2), or the provision on preliminary rulings regarding the admissibility of cases.

READ: EXPLAINER: ICC and its authority

Four ‘grounds’ for the reversal of ICC decision

In its appeal, the government also stated four “grounds” for the reversal of the ICC’s decision to reopen the probe into the drug war.

The government claims that the ICC’s Pre-Trial Chamber (PTC) erred "in law in finding that the Court could exercise its jurisdiction on the basis that the Philippines was a State party 'at the time of the alleged crimes' and that the 'ensuing obligations' of the Rome Statute remain applicable notwithstanding the Philippines withdrawal from the Statute."

It also said the PTC made an error "reversing the Prosecution's burden of proof in the context of Article 18 proceedings."

It argued that the PTC "erroneously relied on the admissibility test for a concrete case in the context of an Article 18 (2) decision" and that the chamber "erred in its failure to consider all Article 17 factors."

Under Article 17 (1) of the Rome Statute, the ICC can rule that a case is inadmissible in its tribunal if "the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

The ICC, under Article 17 (2), can also rule there is "unwillingness" by a state or country to participate if "the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court," including crimes against humanity.

"In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings," Article 17 (3) read.

“Guided by this standard review, this appeal demonstrates that the errors identified in the four grounds of appeal, cumulatively or in the alternative, materially affected the Impugned Decision in that, but for those errors, the Pre-Trial Chamber would not have authorized the resumption of the Prosecution's investigation,” the government’s appeal read.

Khan earlier called for the dismissal of the government's request to suspend the resumption of the probe into the Duterte administration's bloody war on drugs. 

Khan previously argued that Manila has not provided any substantial argument to have the investigation suspended.