Is it covered by the cut-off?

The International Criminal Court’s (ICC) investigations into the killings related to the so-called “war on drugs” in the Philippines are set to resume. A few weeks ago, Karim Khan, the prosecutor for the ICC submitted a request to the Pre -Trial Chamber to resume investigations of the killings.

According to the website of the ICC, the ongoing investigation in the Philippines is focused on “[a]ny alleged crime within the jurisdiction of the Court, including but not limited to the crime against humanity of murder, committed in the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called ‘war on drugs campaign.” This time frame is limited up to the time when the Philippines was still a State Party to the ICC Statue and, therefore, under the jurisdiction of the ICC.

The Rome Statute of the ICC — the treaty that established the ICC and defined the four international crimes that may be investigated and tried by the ICC — provides that the jurisdiction of the ICC is complementary to those of the local courts and that the ICC would only have jurisdiction if the local courts are unwilling or unable to prosecute. The jurisdiction of the ICC may be triggered, and investigations by the Office of the Prosecutor (OTP) may be commenced, in three ways: by way of a referral by the United Nations Security Council; by the request of any State Party to the ICC Statute; or by the prosecutor on his initiative with authorization of the judges. In exceptional circumstances, a state may willingly submit to the jurisdiction of the ICC by submitting a declaration.

The OTP triggered the current investigation by submitting a request on 24 May 2021, after three years of preliminary investigations. A report filed on 14 June 2021 by the OTP to the Pre-Trial Chamber on the Situation of the Republic of the Philippines stated that the “killings appear to have been committed under an official State policy of the Philippine government.” On 21 September 2021, the Pre -Trial Chamber authorized the Office of the Prosecutor to commence the investigation.

Per Article 18 of the Rome Statute, the OTP notified the Philippines about the investigation. Upon notification, the Philippines responded on 10 November 2021 by seeking a deferral of the investigation, alleging that local investigations were ongoing. This latest request by Mr. Khan signifies that the OTP has determined that the Philippines is unwilling or unable to prosecute the killings and deaths related to the war on drugs.

Actions and statements by Philippine officials before the withdrawal of the Philippines from the ICC and during the years following have shown a reluctance and outright refusal to cooperate with the ICC investigation.

It is not a surprise that Mr. Khan has requested the resumption of investigations. In his statement dated 24 June 2022, Mr. Khan averred that the deferral requested by the Philippines is not warranted, saying that the “various proceedings referenced by the Philippines also fail to sufficiently mirror the authorized ICC investigation” because “the Philippines has not asserted that it is investigating any conduct occurring in Davao from 2011 to 2016, any crimes other than murder, any killings outside official police operations, any responsibility of mid- or high -level perpetrators, or any systematic conduct or State policy.”

On 29 July 2022, President Ferdinand Marcos Jr.’s Justice Secretary Jesus Crispin Remulla said “We have withdrawn from the ICC. They say that they want to investigate crimes here in the country, but we have a functioning judicial system. It’s not perfect but it’s functioning, we are not a banana republic.”

Regardless of the status of the Philippines as a member of the ICC, the current investigation by the OTP for alleged crimes committed when the country was still a member of the ICC continues.

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