Philippines appeals ICC resumption of drug war probe

MANILA, Philippines — The Philippines has asked the International Criminal Court (ICC)’s Appeals Chamber to reverse the authorization issued by the court’s Pre-Trial Chamber (PTC) for its prosecutors to resume investigation into the Duterte administration’s drug war.

In a 50-page appeal filed by the Office of the Solicitor General (OSG) on Monday, the government asked the Appeals Chamber not only to reverse the authorization, but also to suspend the investigation until their appeal is decided and to determine that ICC’s prosecutors are not authorized to resume investigation.

In particular, the OSG cited at least four grounds for its appeal.

First, the Philippines finds that the Pre-Trial Chamber “erred in law” when it deemed that the ICC had jurisdiction over the Philippines.

“It erroneously determined 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 Philippine Government’s withdrawal from the Statute,” the OSG said, asserting that the government was no longer required to cooperate as of March 17, 2019 when President Duterte withdrew the Philippines from the Rome Statute.

Also, the OSG said the PTC committed a “series of legal errors” by reversing the prosecution’s burden of proof in the context of Article 18 proceedings, relying on the admissibility test for a concrete case in the context of an Article 18(2) decision and its failure to consider all Article 17 factors.

“By applying a higher threshold or a greater degree of overlap, the Impugned Decision effectively defeated the purpose of Article 18 and its central role within the complementarity regime. This is a regime which epitomizes the character of the Court itself and conveys a framework whereby the Court and State work in unison whilst preserving a State’s primary right, and indeed responsibility, to investigate and prosecute crimes within the Court’s jurisdiction,” the OSG explained.

“Most concerning, it also places the Court in a position which judges national systems and seeks to scrutinize substantive and procedural processes of a State at a very early stage in the investigation. This situation disadvantages both the Court and States alike and regrettably was applied in practice in the Impugned Decision,” the OSG concluded.

The ICC earlier cleared the way for its prosecutors to resume investigation into the drug war killings, a decision currently under appeal with the Appeals Chamber.

The government’s top litigators have been vocal about not letting the ICC investigate on Philippine soil the Duterte administration’s alleged crimes against humanity, viewing the investigation as an insult and an act of attempting to “take over” the country’s justice system.

Failure to investigate

Meanwhile, a United Nations independent expert said too many nations fail to investigate torture cases.

Alice Edwards, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, told the Human Rights Council on Wednesday that “the national duty to investigate torture is alarmingly, universally, under-implemented.”

She urged states to investigate promptly all alleged crimes of torture. States, she said, must be “primary responders” in torture cases, to end impunity and bring justice on behalf of victims.

“When a State fails to defend truth and justice, it becomes an accomplice in torture,” Edwards said.

She also said authorities should “take ownership of justice processes” and pursue justice “at home” for crimes of torture, to achieve meaningful accountability, healing and reconciliation.

“Despite the impressive growth in international criminal courts and tribunals and our collective commitment to those entities, their capacity to deal with the scale and scope of torture crimes being perpetrated today will never be enough,” she said, emphasizing the importance of national proceedings.

The report highlighted the main obstacles hindering full and prompt investigations into allegations of torture, including institutional, regulatory, political and practical challenges.

It also noted promising state practices to encourage the investigation of torture allegations, including documenting that at least 105 countries have adopted an explicit criminal offence of torture.

In her report, the special rapporteur however pointed to a “glaring gap” between the promise and reality of the international prohibition of torture.

She said that “too few incidents of torture and other ill-treatment are officially reported and, of those that do come to light, cases regularly collapse or are withdrawn before a satisfactory conclusion.”

In another report to the Human Rights Council, a UN human rights expert warned of an alarming increase in the use of counterterrorism rhetoric to justify a rise of surveillance technology.

Fionnuala Ní Aoláin, special rapporteur on the promotion and protection of human rights while countering terrorism, said some countries and private companies are using “counterterrorism and security rhetoric” to justify a major increase in the deployment and use of cutting-edge surveillance technology, with no regulation, and at an “enormous cost” to human rights.

She said this includes drones, biometrics, artificial intelligence and spyware, which is being ramped up in the ongoing fight against terrorism, without due regard for the rule of law, governance and human rights. – Pia Lee-Brago