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ICC may investigate drug war even with ‘functioning’ PH justice system

A “functioning” judiciary is not among the grounds for inadmissibility of a case before the International Criminal Court, contrary to a claim by Sen. Imee Marcos that the court has no jurisdiction over the drug war in the Philippines where, she said, the legal system is “strong and working.”

Marcos said in an interview on CNN’s Balitaan on Nov. 28 that the ICC may only investigate crimes in the country if its local judiciary is not functioning. She said starting at the 1:22 mark:

Paulit-ulit ko nang sinasabi na talagang wala hurisdiksiyon ang ating ICC. They have absolutely no jurisdiction in the Philippines, ‘pagkat ang liwa-liwanag ng mga datos ng ICC, ng kanilang sariling mga batay at batas…talagang nagpapakita na kapag hindi umaandar at wala nang korte na nakikinig at naglilitis, saka lang sila papasok (I repeatedly say that the ICC truly has absolutely no jurisdiction in the Philippines because the ICC's own laws clearly show that they only intervene when local courts are not functioning or listening and conducting trials.)

She added:

Maliwanag naman na ‘yung hudikatura naman dito sa Pilipinas ay umaandar. Pati si Senator de Lima, nakinabang, napalaya, dahil talagang matatag at malaya ang ating judiciary. Bakit naman manghihimasok pa yung mga taga-labas (It's clear that the judiciary here in the Philippines is functioning. Even Senator de Lima benefited and was freed because our judiciary is indeed strong and independent. So why would outsiders interfere)?

The interview came amid three resolutions filed in the House of Representatives urging the government to cooperate with the ICC in its investigation of drug war-related killings under the Duterte administration and President Ferdinand Marcos Jr. recent ’s statement that rejoining the ICC is "under study."

Established in 1998 through the Rome Statute, the ICC tries and investigates individuals charged with genocide, crimes against humanity, war crimes and aggression.

The Philippines became a member of the ICC in November 2011 but withdrew in March 2018 after the court launched a preliminary investigation into complaints filed against Duterte over his brutal war on drugs as president and Davao City mayor.

While the mandate of the ICC involves holding individuals accountable for the aforementioned crimes when national courts are unable or unwilling to do so, a “working justice system” in a member State is not a basis for inadmissibility of a case before the court as Senator Marcos said.

Article 17 of the Rome Statute reads in part:

The Court shall determine that a case is inadmissible where: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.

This means that the ICC can still investigate a case if it has not been investigated or prosecuted by a State, even if the national judiciary is “functioning.”

This is supported by the ICC Appeals Chamber ruling that rejected the Philippines’ petition to halt the court’s investigation into the drug war. The ruling decided that the ICC has jurisdiction over the case as Philippine investigations and proceedings do not sufficiently, or at all, mirror, the court’s investigation.

The ruling further states:

The Chamber considers that it is evident that, at present, no investigations or prosecutions covering patterns of criminality or the responsibility of individuals beyond the physical perpetrators of the alleged crimes are taking place.

The senator’s remark on the case of former Sen. Leila de Lima is also irrelevant as the ICC does not look at the entirety of a country’s justice system but its actions regarding the specific case being investigated before the international court.

While there are investigations into individual drug-related crimes in the country during the Duterte administration, according to the ICC, there are currently no investigations on “patterns of criminality” relating to the war on drugs.

ICC assistant to counsel Kristina Conti said in an interview with ANC on Nov. 27 that a working justice system is different from a justice system investigating the specific crime the ICC is looking into.

She said:

It’s different when you say the justice system works versus the specific crimes. We’re looking at the specific crime of crimes against humanity in the context of war on drugs.
Bukas ang mga opisina pero meron bang imbestigasyon na nandoon ngayon for crimes against humanity (The offices are open, but is there an ongoing investigation there for crimes against humanity)?

In a media interview following an event in Taguig City on Nov. 24, President Marcos insisted that the country’s judicial system is well-functioning and can handle the case. However, more than a year into his term, a comprehensive investigation into the drug war has yet to be conducted. (AV)

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