SolGen: ICC chamber ‘legal errors’ basis for PH appeal on drug war probe

Metro Manila (CNN Philippines, March 22) — The Office of the Solicitor General on Wednesday defended the Philippine government’s appeal on the decision of the International Criminal Court (ICC) pre-trial chamber to authorize the resumption of the probe into the Duterte administration's drug war.

“When we filed our appeal brief, we shifted our strategy, and instead of focusing on previous arguments about the sufficiency of our domestic investigation, we focused on the legal errors committed by the pre-trial chamber,” Solicitor General Menardo Guevarra told CNN Philippines’ The Source.

In its 50-page appeal, which was signed by Guevarra, the Philippine government cited four “grounds” for the reversal of the ICC’s decision. 

The government claimed that the pre-trial chamber 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."

Contrary to the tribunal’s claim, Guevarra argued that it is not enough for the ICC to claim that it has automatic jurisdiction over the crimes committed from November 2011 to March 16, 2019, or when the Philippines was still a member.

“Jurisdiction should be determined at the time that it will be exercised by the ICC and when did that happen? That exercise of jurisdiction by the ICC occurred when the ICC prosecutor asked for authorization to commence his investigation… that was in September of 2021,” he pointed out.

Guevarra said it will not be good for the pre-trial chamber to proceed with its investigation as long as its jurisdiction is not established.

President Ferdinand Marcos Jr. has also said his government cannot cooperate with the tribunal until the issue is settled, Guevarra added.

On the concern of the National Union of Peoples’ Lawyers that only low-level to mid-level officials would be held accountable for the alleged killings, Guevarra said this would only be at the outset.

Based on the existing processes in the country, the investigation starts with people who were on the ground, he noted.

“We are trying to build cases against other officials,” Guevarra added. “We are hoping in their defense, they will provide certain information that will probably lead us to an investigation of other people involved, maybe some superintendents or some in the military higher-ups or police higher-ups who might have given the necessary order in connection with the campaign.”

Guevarra said the Philippine government also argued that the standards applied by the ICC pre-trial chamber on the country’s drug war probe were incorrect.

“We are saying that you are applying the incorrect standards for your evaluation, and for that reason you failed to appreciate fully the information that we have given to show that the general situation in the Philippines is that we are conducting the appropriate investigation,” he noted.

Still, Guevarra said he does not feel that the ICC is rushing the case, but its conclusion is unfounded. Even if it wants things expedited, the Philippine government still has a process to follow that the court should respect, he added.

The solicitor general said he also believes that abuses were done during the Duterte administration’s war against illegal drugs. He does not believe however, that these can be considered as crimes against humanity since it was directed to the use of illegal drugs.

“But I am saying that that is not tantamount to a crime against humanity because the war on drugs was a legitimate law enforcement operation. The target of that war on drugs is to stop a crime, to stop the proliferation of illegal drugs,” he pointed out.

Moreover, not all 6,000 deaths recorded by authorities during the drug war involved lapses on the part of law enforcers, he noted. Majority of these followed protocols, and those found with problems were submitted to the Department of Justice for further investigation, he added.