PH may question ICC jurisdiction if warrants sent out, says SolGen counsel

The Philippines may raise the issue of jurisdiction should the International Criminal Court (ICC) move for the arrest of individuals allegedly responsible for the bloody war on drugs, according to the foreign lawyer tapped by the government on Tuesday.

British lawyer Sarah Bafadhel told an online news conference that the Philippines has available legal remedies.

”The main opportunity would be in the event that the prosecution did issue an arrest warrant, name a specific suspect, and put forward a concrete case that the government, under Article 19 of the Rome Statute, has the right to intervene and ask for a decision on jurisdiction at that point, arguing and asserting that the court does not have jurisdiction,” she said.

”Of course, there are other channels. One that I would think of right now is that there may be some sort of engagement with the prosecution, but the prosecution may also acknowledge that because if the court does not have jurisdiction, then there will be little purpose to continue [with the investigation].”

Justice Secretary Jesus Crispin Remulla earlier said the country would not comply if the ICC issued an arrest warrant against individuals over killings in the drug war.

Other Philippine officials, including President Ferdinand Marcos Jr., have said the government will not cooperate with the ICC, reiterating that the tribunal has no jurisdiction over the country.

Bafadhel’s statement comes after the ICC Appeals Chamber, in a vote of 3-2, rejected the Philippines’ plea against the resumption of the ICC prosecutor’s probe into allegations of crimes against humanity in the implementation of the campaign against illegal drugs during the Duterte administration.

”Disappointed” by the decision, the Office of the Solicitor General (OSG) said the Appeals Chamber ”refused to recognize the Philippine Government’s primary and sovereign right to investigate serious crimes, in derogation of the complementarity principle so fundamental to the working of the international criminal justice system of which the ICC forms part.”

”Long after the Philippines ceased to be a state party to the Rome Statute, the Philippine Government chose to submit data to the Office of the Prosecutor and later, to the Pre-Trial Chamber, not out of any legal obligation but purely on the basis of comity, consonant with its assertion of sovereignty,” the OSG said in a statement.

”Its submissions bear out the internal investigation and prosecution activities undertaken so far by the Government connected to the anti-illegal drug campaign,” it added.

The OSG said the Appeals Chamber’s majority ”conveniently brushed this aside and worse, they refused to consider the Philippines’ jurisdictional challenge on the ground that the Impugned Decision of the Pre-Trial Chamber is not a decision on jurisdiction.”

”But as correctly pointed out by the Chamber’s minority, which included the Presiding Judge no less, the issue of jurisdiction is properly raised before the Appeals Chamber because the Pre-Trial Chamber’s finding on jurisdiction is an integral part of the Impugned Decision,” it said.

”The established principle of international law dictates that the Court must satisfy itself of its own jurisdiction and this power to determine its own jurisdiction exists regardless of whether the Court is called upon to exercise this power or not.”

Former President Rodrigo Duterte pulled the Philippines out of the ICC in 2019 after the tribunal began a preliminary probe into his administration’s drug war, which had killed thousands, followed by the launch of a formal inquiry later that year.

The probe was suspended in November 2021 after the Philippine government said it was re-examining several hundred cases of drug operations that led to deaths at the hands of police, hitmen, and vigilantes.

ICC prosecutor Karim Khan had asked to restart the inquiry, saying the Philippine government had not provided evidence it was carrying out thorough inquiries.

The ICC authorized the reopening of the inquiry in January 2023. — VBL, GMA Integrated News