ICC prosecutor has Duterte on their radar again

Prosecutor Karim Khan of the International Criminal Court (ICC) urged that the investigation into drug war killings during the administration of former Philippine President Rodrigo Duterte should continue after stopping the investigation to hear the Philippine government’s side of the story.

Khan stated in his response to the comment that the Philippine government had sent to the International Criminal Court (ICC) on September 22, that “…the Prosecution respectfully reiterates its request that the Chamber order the resumption of the investigation into the Situation in the Republic of the Philippines,” and that a deferral “is not warranted.”

On September 8, earlier in this month, the Philippine government, which was represented by the Office of the Solicitor General, submitted a motion to the International Criminal Court (ICC) pre-trial chamber requesting that the request to reopen the investigation into the drug war be denied.

Earlier, the Philippine government made the argument that 1) the International Criminal Court does not have any jurisdiction; 2) an investigation is already under way; and 3) a precedent is required. On the other hand, Khan stated in his response that “none of those arguments have merit.”

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Khan’s Reasons

The prosecutor for the ICC presented several points that countered the claims that the Philippine government had made.

No investigation or legal action taken. Khan stated that the Philippine government, despite its additional submissions to the ICC, has “not demonstrated” that it has conducted or is conducting national investigations or prosecutions that mirror the investigation authorized by the pre-trial chamber. Khan’s statement was made after the Philippine government submitted additional information to the ICC.

However, as Khan pointed out, “there is nothing in the observations nor in the hundreds of pages of associated annexes that substantiates that criminal proceedings actually have been or are being conducted in anything more than a small number of cases.” Khan also noted that “there is no evidence” that criminal proceedings have been or are being conducted in any more than a small number of instances.

The prosecutor for the International Criminal Court noted that there were no criminal investigations into “war on drugs” (WoD)-related killings in Davao, nor into “war on drugs”-related killings by “vigilantes,” nor into “war on drugs”-related torture, and that there were “only a handful of criminal investigations of other WoD-related crimes within this Court’s jurisdiction.”

Khan noted the Department of Justice Inter-Agency Review Panel, Administrative Order No. 35, the Philippine National Police-Internal Affairs Service cases, and the writ of amparo proceedings, all of which have not generated anything meaningful, such as determine criminal liability. Khan stated that the Philippine government has “failed to substantiate any relevant criminal proceedings in regard to events in Davao” between the years 2011 and 2016, which are years in which Duterte served as either vice mayor or mayor of Davao.

After the Duterte government unilaterally withdrew membership from the ICC, the current president, Ferdinand Marcos Jr., does not intend to reapply for membership in the ICC. On the other hand, Article 127 of the Rome Statute provides that all procedures prior to the withdrawal remain legitimate. This is the same approach that the Supreme Court of the Philippines has taken.

Khan submitted a motion to the International Criminal Court’s pre-trial chamber in June 2022, asking that he be allowed to continue his investigation into killings committed under Duterte’s administration.