Why the ICC can pursue drug war probe

A few weeks ago, President Ferdinand Marcos Jr. stated that the International Criminal Court would only be welcome in the Philippines "if the system collapses" or if "we have a war here."

The President also reiterated his earlier statement about the country not rejoining the ICC. Do these statements have any impact on the ongoing ICC investigation into the crimes against humanity allegedly committed during the term of President Marcos' predecessor, former President Rodrigo Duterte?

No, these statements won't affect the ongoing investigation. The ICC has complementary jurisdiction, which means that it has the jurisdiction to investigate and prosecute if the Philippines is unable or unwilling to prosecute the crimes properly in the local courts. There need not be a war or a collapse of the justice system. If the ICC sees that the Philippines is not doing enough, then it can step in.

On 22 September 2022, Prosecutor Karim Khan of the ICC's Office of the Prosecutor submitted to the ICC's Pre-Trial Chamber a response to the Philippine government's observations regarding the request to resume investigations. In the response, the OTP raised the following submissions: (1) that there is no provision for a State to challenge the resumption of an investigation at the current stage in the proceedings; (2) that the Philippine government's arguments are related to the merits of the case and not to the jurisdiction of the ICC, and that the government misstated the law; (3) that the government's challenge is not supported by the facts or the law; and most importantly; and (4) that the Philippine government has not demonstrated that it has conducted or is conducting national investigations that sufficiently mirror the investigations as authorized and required by the ICC.

Regarding the fourth submission, the OTP stated, among other arguments, that the government relied upon non-criminal proceedings. The ICC Statute requires that the State Party show that "it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes." The report also asserted that the Philippine government continues to rely on administrative and non-penal mechanisms and proceedings to justify the deferral of the investigation. The government failed to show that the "proceedings constitute tangible, concrete, and progressive investigative steps as required to show inadmissibility." Furthermore, the report also stated that the government "also failed to substantiate any relevant criminal proceedings in relation to events in Davao during the period 2011 to 2016."

The OTP argued against the government's contention that other crimes aside from murder were investigated. The government's submission of an investigation involving incidents of rape and sexual violence while the alleged victim was under police custody referred to incidents that occurred in September 2020, which is outside the temporal scope of the ICC's investigation. According to a news article referred to in the report, another rape case resulted in the arrest of a police officer. The OTP declared that this occurrence, if accurate, "would still only demonstrate activity in respect of the alleged direct perpetrator and could only result in the inadmissibility before the Court of a case concerning this perpetrator." Therefore, the only inadmissible case would be one that charges that police officer.

The report likewise contended that several of the cases raised by the government in their reply are outside the purview of the investigation as they are not covered by the timeframe of the investigation or are not part of the War on Drugs. Also, the OTP points out that the new cases that were raised are but a tiny proportion of the number of alleged incidents that took place. The cases only involved low-level perpetrators, and "evince no inquiry into patterns of crimes or a state policy."

Let us wait and see what the Pre-Trial Chamber has to say following the submissions of both the Philippine government and the OTP. Unless the President has something substantial to add, his comments on the investigation have so far held no influence over the investigation.