Today, I filed an application before Pre-Trial Chamber I of the International Criminal Court (“ICC” or the “Court”) seeking authorisation for my Office to resume its investigation in the Situation in the Republic of the Philippines (“Philippines”).
On 15 September 2021, Pre-Trial Chamber I authorised my Office to investigate alleged crimes against humanity committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the Philippine Government’s so-called “war on drugs”.
On 10 November 2021, the Government of the Philippines requested, pursuant to article 18(2) of the Rome Statute, that I defer my investigation into the Philippines Situation, on the basis that national authorities were investigating, or had already investigated, alleged murders falling within the parameters of Pre-Trial Chamber I’s authorisation decision. My Office accordingly suspended investigative activities, as required by the Statute, whilst considering the Philippines’ request. We proceeded to engage with the Philippine authorities, mindful of the principle of complementarity, including with a detailed request for additional information under rule 53 of the ICC Rules of Procedure and Evidence. The Philippines provided additional information to my Office in December 2021 and again in March 2022, all of which has been made available to Pre-Trial Chamber I along with today’s application. I take this opportunity to commend the Government of the Philippines for its constructive engagement in the matter.
After a careful and thorough review of all the information provided by the Philippines, as well as other information available publicly, provided by third parties, or already in our collection, I have concluded that the deferral requested by the Philippines is not warranted, and that the investigation should resume as quickly as possible.
The majority of the information provided by the Philippine Government relates to administrative and other non-penal processes and proceedings which do not seek to establish criminal responsibility, and therefore cannot warrant deferral of the ICC’s criminal investigation. The various proceedings referenced by the Philippines also fail to sufficiently mirror the authorised ICC investigation, as required by articles 17 and 18 of the Rome Statute, 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.
The Philippine Government has referred to a relatively small number of past or ongoing criminal investigations and prosecutions that appear to fall within the parameters of the ICC investigation. However, with a handful of exceptions, the Philippine Government has failed to provide any documentation to substantiate that the investigations are ongoing or complete, nor any details regarding concrete investigative or prosecutorial steps that have been taken.
In short, the deferral of the ICC investigation requested by the Philippines is not justified. Meanwhile, as already recognised by Pre-Trial Chamber I in its decision authorising the investigation, there are clear indications that crimes against humanity were committed in the Philippines. Under the Rome Statute’s core principle of complementarity, States always have the first opportunity to investigate allegations of such crimes committed on their territory or by their nationals. However, when national authorities fail to act, the Court must step in, and that is why I have filed today’s application.
I have informed the Philippine authorities of my intention to file today’s application. In my letter, I made clear – and I repeat here now – that I remain ready and willing to continue the productive dialogue we have had since November 2021, and to explore ways in which, moving forward, we can effectively cooperate to deliver justice to victims in the Philippines.