After months of playing deaf to ICC, the government through its Netherlands ambassador has formally asked the Hague-based court to defer the investigation so as to give way to domestic efforts to investigate the same crimes.

The letter comes over a month since the court’s Pre-Trial Chamber authorized a full-blown investigation into the conduct of the drug war between Nov. 1, 2011 to March 19, 2019, or up until the country withdrew from the statute.

In an earlier interview with the Inquirer, international law expert and lawyer Ruben Carranza explained that this was one of the possible legal remedies—enshrined under Article 18(2) of the Statute—that the government can avail of if it wants the ICC to stop the probe.

When it greenlit the ICC prosecutor’s request last Sept. 15, the Chamber said it found “reasonable basis for the Prosecutor to proceed with an investigation” into what it called a “widespread and systematic attack against the civilian population took place pursuant to or in furtherance of a State policy, within the meaning of Article 7(1) and (2)(a) of the Statute.”

Under Article 17 of the Rome Statute that established the ICC, the principle of complementarity means that the ICC may only exercise jurisdiction when national legal systems fail to genuinely prosecute crimes under international law.

‘Committed to rule of law’

This is essentially what Malaya is now invoking in his letter. “Beyond the conduct of investigations, the Philippine government is likewise keen on ensuring the successful prosecution of cases that have been filed or may be filed in court against erring police and others within its jurisdiction,” Malaya said.

To back his claims, the ambassador cited among others the ongoing Department of Justice (DOJ) review of 52 drug raids between 2016 to 2021 that resulted in deaths.

“Committed to the rule of law and with the highest regard to due process, the government has undertaken and continues to undertake thorough investigations of all reported deaths during antinarcotics operations in the country,” he said.

However, law group Centerlaw, which was one of the petitioners that asked the Supreme Court to have the drug war declared unconstitutional, said the government’s claims “could not be farther from the truth.”

“On the contrary, the fact that only 52 cases of the estimated 30,000 killed have been reviewed reveals that the government’s feigned compliance with international justice was paper-thin.”

Malaya also cited the DOJ review of over 300 cases in the dockets of the National Prosecution Service that involve concluded and ongoing preliminary investigations into similar deaths.

“This ongoing process is a priority of the DOJ and the Philippine government and a recognition of the need to address allegations of impunity in the field against erring law enforcement officers and personnel,” he added.

Legal remedies

The ambassador also mentioned the DOJ’s Administrative Order No. 35 panel, which specifically looks at politically motivated extrajudicial killings in the country. However, the said panel has yet to release any report on its ongoing case review.

To counter claims by human rights groups that the country has no effective domestic legal mechanism for redress, the ambassador also argued that there are several civil and administrative remedies for victims of the drug war, including the option to file a writ of amparo or writ of habeas data.

A writ of amparo is a remedy available to anyone whose right to life, liberty and security is violated or threatened, while habeas data is a remedy for persons whose right to privacy of life, liberty and security is violated or threatened by unlawful acts.

In reality, however, drug war victims and activists who have sought help from the SC have rarely, if at all, been granted these extraordinary writs.

In an earlier interview, National Union of Peoples’ Lawyers president Neri Colmenares said the DOJ reviews itself were actually a “fatal legal mistake” that only exposed the fact that the PNP never sent incident reports to the DOJ for the past five years, making prosecutions impossible.

“Even if they start now, it’s been six years almost, and we will argue before the ICC that the (inordinate delay) is a sign of unwillingness already,” he added.