i. Alleged erroneous application of the admissibility test

96. Article 17 of the Statute, in relevant part, provides:

1. 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

   1. (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;

   2. (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;

   3. (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

   4. (d) […].

97. Article 18(2) of the Statute states:

98. Rule 51 of the Rules, “Information provided under article 17”, states that

99. Rule 52(1) of the Rules provides that the Prosecutor's article 18 notification to States should contain “information about the acts that may constitute crimes referred to in article 5, relevant for the purposes of article 18, paragraph 2”.

100. Rule 55(1) and (2) of the Rules instructs:

101. In determining a State's inactivity in relation to article 17(1)(a) and (b) of the Statute, the same conduct/same person test has been developed in the jurisprudence of the Court. The Majority recalls that in the context of challenges to the admissibility of cases, the Appeals Chamber has noted that for a case to be inadmissible under article 17(1)(a) of the Statute, “the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court”.Footnote ¹³² The Appeals Chamber has also held that “a State is investigating the same case if it has been established that ‘discrete aspects’ of the case before the Court are being investigated domestically”.Footnote ¹³³ The Appeals Chamber further noted that for a State's challenge to admissibility “[t]o be successful, this challenge must be able to show what is being investigated by the State (the contours or parameters of the case) such that the Court is able to compare this against what is being investigated by the prosecutor”, and that “[i]f a State is unable to present such parameters to the Court, no assessment of whether the same case is being investigated can be meaningfully made”.Footnote ¹³⁴

102. Concerning a chamber's assessment of information provided by States in respect of domestic investigations and prosecutions, the Appeals Chamber noted that “[t]he words ‘is being investigated’, in this context, signify the taking of steps directed at ascertaining whether those suspects are responsible for that conduct”.Footnote ¹³⁵ More specifically, the Appeals Chamber stated that the relevant State must show that it is indeed taking such steps “for instance by interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analysis”.Footnote ¹³⁶ It emphasised that “the mere preparedness to take such steps or the investigation of other suspects is not sufficient”.Footnote ¹³⁷

103. The present appeal relates to proceedings which are the situation stage. In this regard, the Majority recalls the following jurisprudence.

104. With respect to article 18 proceedings, the Appeals Chamber has indicated that the procedure set forth in article 18(1) of the Statute, providing for “an interested State […] to present detailed information with respect to any question of admissibility allowing for an informed and meaningful assessment by a pre-trial chamber”, “allows the pre-trial chamber to consider admissibility at a stage designed specifically for that purpose immediately following upon the authorisation of an investigation”.Footnote ¹³⁸

105. The Appeals Chamber has found that article 17 of the Statute applies not only to the determination of the admissibility of a concrete case (article 19 of the Statute), but also to preliminary admissibility rulings (article 18 of the Statute).Footnote ¹³⁹ In relation to the factors set out in article 17 of the Statute, the Appeals Chamber noted that “[t]he meaning of the words ‘case is being investigated’ in article 17(1)(a) of the Statute must […] be understood in the context to which it is applied”.Footnote ¹⁴⁰

106. The Majority recalls that any investigation, irrespective of its stage, have certain defining parameters,Footnote ¹⁴¹ which may vary depending on the circumstances of each specific situation. The Majority is of the view that, for the purpose of admissibility challenges under article 18 of the Statute, a State is required to demonstrate an advancing process of domestic investigations and prosecutions of the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation. The domestic criminal proceedings must sufficiently mirror the scope of the Prosecutor's intended investigation. The Majority observes that a pre-trial chamber's assessment in this context is a largely fact-driven inquiry.

107. The Majority notes that in the present situation, the general parameters of the situation were defined by the Pre-Trial Chamber's Article 15 Decision and the Prosecutor's notification to the Philippines under article 18(1) of the Statute, and that those parameters were sufficiently specific to enable the Philippines to provide information in relation to its domestic investigations and prosecutions under article 18(1) of the Statute and demonstrate the degree of mirroring.

108. In the view of the Majority, the test it set forth above provides sufficient flexibility for a pre-trial chamber to integrate the specific circumstances and parameters of each situation in its assessment under article 18 of the Statute, and gives effect to a State's right under article 18(2) of the Statute to seek the deferral of the Prosecutor's investigation.

109. The Majority observes that in the situation at hand, the Pre-Trial Chamber stated that it considered whether the domestic investigations and prosecutions of the Philippines cover “the same individuals and substantially the same conduct as the investigations before the Court”.Footnote ¹⁴² The Majority notes that the Pre-Trial Chamber, however, acknowledged that its assessment must be carried out in the context of a specific situation and taking into account the different types of investigations.Footnote ¹⁴³ Furthermore, in its application of the test, the Pre-Trial Chamber examined whether the Philippines showed that (i) it is indeed investigating and prosecuting the same groups or categories of individuals in relation to the relevant criminality within the scope of the situation, i.e. crimes related to the “war on drugs” campaign; (ii) it has undertaken “tangible, concrete, progressive investigative steps” in its investigations and proceedings;Footnote ¹⁴⁴ and (iii) its domestic investigations and prosecutions “sufficiently mirror the content of the article 18(1) notification, by which the Prosecution notified the concerned State of the opening of an investigation, and its scope”.Footnote ¹⁴⁵

110. In light of the foregoing, the Majority considers that in its assessment of complementarity in the context of article 18(2) of the Statute, the Pre-Trial Chamber correctly assessed whether there exists an advancing process of domestic investigations or prosecutions of the same groups or categories of individuals in relation to the relevant criminality within the situation which sufficiently mirrors the scope of the Prosecutor's intended investigation, taking into account the stage of a situation, as well as the specific circumstances and parameters of the Philippines Situation. Therefore, the Majority finds that the Pre-Trial Chamber did not err in law.

ii. Examples of the alleged erroneous application of the admissibility test

111. The Philippines alleges a number of errors in the Pre-Trial Chamber's findings on specific domestic proceedings and on the degree of overlap with the Court's investigation. While the Philippines appears to present these as errors of fact, the overarching argument is that the Pre-Trial Chamber erred in its findings as a result of the alleged legal errors discussed above. The examples of alleged erroneous factual assessments form the basis for the Philippines' argument that the threshold of substantiating the existence of domestic investigations and prosecutions was too high,Footnote ¹⁴⁶ and that the standard to assess the degree of overlap between the domestic and Prosecution investigations was higher than warranted in article 18 proceedings.Footnote ¹⁴⁷

112. The Majority will address the alleged errors in turn, consistent with the standard of review set out earlier in this judgment.

a. Alleged errors in the Pre-Trial Chamber's assessment of the deferral material

113. The Philippines provides examples of proceedings with respect to which, in its view, the Pre-Trial Chamber applied a “high threshold, developed in the article 19 context” in order “to reject swathes of information submitted by the Philippine Government to substantiate its investigations”.Footnote ¹⁴⁸

(1) Matrix of cases

(i) Summary of the submissions

114. The Philippines submits that the Pre-Trial Chamber erroneously applied the higher threshold applicable to article 19 proceedings, “whereby a State is expected to substantiate the existence of proceedings to such a high degree in connection to a single concrete case”, to conclude that the four charts listing 302 cases referred to the NBI were not, by themselves, sufficient to substantiate concrete or ongoing investigative steps.Footnote ¹⁴⁹ The Philippines also argues that, by rejecting material listing cases before the National Prosecution Services (hereinafter: “NPS”), the Pre-Trial Chamber erroneously required that such material should show that actual individual trials took place or are about to take place.Footnote ¹⁵⁰ The Philippines contends that such scrutiny “goes well beyond the scope of article 18 whereby the existence of investigation is sufficient”, and that it “ignores the framework under article 18(5) whereby the progress of investigations is subject to periodic updates”.Footnote ¹⁵¹

115. In his response to the Appeal Brief, the Prosecutor argues that “the Philippines' general argument concerning the assessment required and the evidence to be submitted for the purpose of article 18(2) is incorrect” and that “it shows no error for the Chamber to have applied this approach”.Footnote ¹⁵² He contends that the Pre-Trial Chamber's reference to uncertainty whether “trials” were taking place “did not reflect any kind of legal requirement […] but rather the factual context of the documents in question”.Footnote ¹⁵³ The Prosecutor submits that the Philippines “fails to address other salient reasons” for the Pre-Trial Chamber's conclusion, such as the lack of supporting documentation for the listed cases, despite a reasonable expectation that the Philippines should have access to relevant information.Footnote ¹⁵⁴

116. The OPCV submits that the Philippines' claim that the Pre-Trial Chamber applied a “higher threshold” in its assessment is flawed, as “most of the documentation was in fact irrelevant or insufficient to establish a link with the issue sub judice”.Footnote ¹⁵⁵ It argues that the Philippines “disregards the Chamber's caveat that it laid out the domestic measures separately to mirror the Prosecution's request to resume the investigation”.Footnote ¹⁵⁶

(ii) Determination by the Appeals Chamber

(a) Four lists of cases referred to the NBI

117. In its Article 18 Observations, the Philippines submitted that “several cases are already pending before different prosecution offices of the Department of Justice (“DOJ”), specifically in Angeles City (58 cases), San Jose Del Monte City (81 cases), and the Province of Bulacan (111 cases)”, as well as “52 ‘nanlaban’ (resisting arrest) cases referred to the [NBI] for case-build up”.Footnote ¹⁵⁷

118. The Pre-Trial Chamber considered the four charts listing 302 cases referred to the NBI and relied upon by the Philippines. It found that the case lists “are not, by themselves, sufficient to substantiate concrete or ongoing investigative steps to support the deferral of the Court's investigation”, as they do not provide sufficient specificity and do not enable an analysis of “whether the investigative steps into the conduct of the relevant law enforcement agents have in fact occurred or are occurring”.Footnote ¹⁵⁸

119. The Pre-Trial Chamber further found that:

120. Regarding these six relevant cases, the Pre-Trial Chamber found that with respect to two of them,Footnote ¹⁶⁰ a part of the “documentation is incomprehensible without further explanation and the material is incomplete, as it references attachments which were apparently used to support each recommendation but were not provided to the Court”.Footnote ¹⁶¹ As a result, the Pre-Trial Chamber found that it was “difficult to assess whether these two cases show tangible investigative activity” and even if they do, they “appear to have been dismissed by the NBI” and “no information is provided about the reasons for the dismissals”.Footnote ¹⁶²

121. With respect to the four other cases,Footnote ¹⁶³ the Pre-Trial Chamber stated that “[the investigative] steps [referred to in the supporting documents] – if shown to have taken place – may be considered as tangible, concrete investigative steps”.Footnote ¹⁶⁴ However, “the number of cases investigated in this manner by the NBI appears to remain very limited in number and scope”.Footnote ¹⁶⁵

122. The Philippines argues that the charts of cases referred to the NBI “detailed the identifying information requested of it by the Prosecution, i.e. the case number, the names of law enforcement officials involved, names of deceased[,] suspects, location and dates of incident and additional remarks and observations as appropriate”.Footnote ¹⁶⁶ According to the Philippines, these lists “provided prima facie evidence of the existence of the investigations and proceedings before the NBI and were supplied in a format requested by the Prosecution”.Footnote ¹⁶⁷ The Philippines submits that the Pre-Trial Chamber's conclusion regarding these lists “is indicative of the application of the higher threshold applied in article 19 proceedings”.Footnote ¹⁶⁸

123. The Majority notes at the outset that the Philippines does not specifically challenge the Pre-Trial Chamber's analysis of the six cases under this heading. Rather, the Philippines takes issue with the degree to which it was “expected to substantiate the existence of proceedings”Footnote ¹⁶⁹ in relation to the remainder of the 302 cases listed in the four charts. In this regard, the Majority notes that with respect to the first three lists concerning 250 cases, the Philippines asserted before the Pre-Trial Chamber that those cases were referred to the NBI for investigation and case build-up, but it provided “no documentation outlining concrete investigative activities […] for any of them”.Footnote ¹⁷⁰ By pointing out the lack of such documentation, the Pre-Trial Chamber expressed its concern about the lack of information on whether “concrete investigative activities” were carried out. It is clear from the remarks which the Pre-Trial Chamber made throughout its analysis that it found the information provided by the Philippines to be “limited”.Footnote ¹⁷¹ It concluded that the four lists “do [not] contain information enabling the Chamber to analyse whether investigative steps into the conduct of the relevant law enforcement agents have in fact occurred or are occurring”.Footnote ¹⁷²

124. Furthermore, with respect to the fourth list of cases concerning 52 cases, the Pre-Trial Chamber noted that the recommendations of the Internal Affairs Service contained in that list “appear to consist of administrative findings and sanctions”, with only one reference to a possible criminal process being a “recommendation that an appropriate complaint be filed”.Footnote ¹⁷³ As with the other three lists, the Pre-Trial Chamber was thus concerned about the lack of information on whether any criminal proceedings were conducted.

125. The Majority finds that the Pre-Trial Chamber's conclusion that the four lists did not show “concrete or ongoing investigative steps to support the deferral of the Court's investigation”Footnote ¹⁷⁴ was not the result of the application of a higher threshold as alleged by the Philippines. Rather, the Pre-Trial Chamber's conclusion was based on the fact that it had received only limited information relevant to its enquiry under article 18(2) of the Statute. The Majority finds no error in the Pre-Trial Chamber's approach in this regard. Consequently, the Majority rejects the Philippines arguments on this point.

(b) The list of cases before the NPS

126. In its discussion of the “[n]ational and regional prosecution offices cases”, the Pre-Trial Chamber addressed the issue of whether the lists of cases collated from the NPS documents support the deferral of the Court's investigation. The Pre-Trial Chamber held that “apart from one case, no corresponding or underlying prosecutorial documentation has been provided to substantiate the information contained in these lists”.Footnote ¹⁷⁵ The Pre-Trial Chamber also noted that “[w]ithout more, it is unclear how and whether the information in these lists relate to trials that actually took place, or are taking place”.Footnote ¹⁷⁶

127. The Philippines argues that despite the fact that it provided “what the Prosecution requested”,Footnote ¹⁷⁷ the Pre-Trial Chamber rejected the lists on the basis that the Philippines did not provide “material to show that the actual individual trials took place”, which is “more scrutiny than was applied at the article 15”.Footnote ¹⁷⁸ The Philippines also submits that it “goes well beyond the scope of article 18 whereby the existence of the investigation is sufficient” and “ignores the framework under article 18(5) whereby the progress of investigations is subject to periodic updates”.Footnote ¹⁷⁹

128. The Majority notes that the Pre-Trial Chamber's reference to the absence of information on past or ongoing trials is part of its analysis of the information on the cases provided by the Philippines. The main reason for the Pre-Trial Chamber's conclusion with regard to the lists of cases before the NPS was that the “information [provided by the Philippines] is of limited use to the Chamber's assessment”.Footnote ¹⁸⁰ Notably, the Pre-Trial Chamber found that “[t]he list from ‘the dockets of the [NPS]’ includes limited details”, and that the lists from the Regional Prosecution Offices “mainly contain particulars of an administrative nature”.Footnote ¹⁸¹ The Majority further notes that the Pre-Trial Chamber examined “the status of each case as of May 2021” indicated in the list from the NPS' dockets, which included a stage of “trial ongoing”.Footnote ¹⁸² For instance, the “Partial Listing of Cases” in the dockets of the NPS makes reference to “[t]rial ongoing” with respect to three of the listed cases.Footnote ¹⁸³ Viewed in this context, the Pre-Trial Chamber's remarks on the uncertainty as to past or ongoing trials seems to relate to the “limited use” of the indication that “[a] trial [is] ongoing” in some of the cases “as of May 2021”, without any information on whether “trials actually took place, or are taking place”.Footnote ¹⁸⁴

129. It is thus clear that the Pre-Trial Chamber's remark on ongoing trials does not constitute a legal requirement but merely a finding that the information provided by the Philippines was of “limited use”. The Philippines thus misrepresents the Impugned Decision by arguing that the Pre-Trial Chamber “demand[ed] […] material to show that the actual individual trials took place”.Footnote ¹⁸⁵ Therefore, the Majority rejects this argument of the Philippines.

(c) Conclusion on alleged errors in the Pre-Trial Chamber's assessment of the matrix of cases

130. The Majority finds that with respect to the four lists of cases referred to the NBI, the Philippines has not shown that the Pre-Trial Chamber erred in finding that the Philippines failed to provide sufficient information supporting concrete investigative steps that would sufficiently mirror the scope of the Court's investigation. Regarding the lists of cases before the NPS, the Majority finds that the Philippines has failed to demonstrate that the Pre-Trial Chamber erroneously imposed a requirement that trials must have taken place.

(2) Investigative files/materials

(i) Summary of the submissions

131. The Philippines' main contention is that the Pre-Trial Chamber demanded a higher threshold of interrogation and verification of the information provided than is warranted under article 18 of the Statute.Footnote ¹⁸⁶ It presents two examples where, despite the provision of supporting material, the Pre-Trial Chamber rejected the Philippines' description of investigative steps taken in relation to recommendations and reports by the NBI.Footnote ¹⁸⁷ The Philippines contends that the Pre-Trial Chamber ignored the fact that “a State can only be guided by the limited information provided to it in the article 18(1) notice and the article 15 litigation”Footnote ¹⁸⁸ and demanded “a wealth of in-depth information as well as […] material in relation to the entirety of the Prosecution's broad investigation” unwarranted in the article 18 context.Footnote ¹⁸⁹

132. In his response to the Appeal Brief, the Prosecutor submits that the Philippines failed to show how either of these examples demonstrates that the Pre-Trial Chamber applied an overly strict standard for the purpose of article 18(2) of the Statute.Footnote ¹⁹⁰ Regarding the first example, he argues that the Philippines fails to address the “precise reasoning of the Chamber concerning the significance of the missing indictments”.Footnote ¹⁹¹ The Prosecutor contends that, in the circumstances of the present situation, the Pre-Trial Chamber's approach was reasonable.Footnote ¹⁹² Regarding the second example, the Prosecutor submits that while he had, in his submissions, considered that the two cases in question were adequately substantiated, it does not necessarily follow that the Pre-Trial Chamber's findings in this respect are unreasonable.Footnote ¹⁹³ The Prosecutor avers that, at any rate, these cases are a small fraction of the claims made by the Philippines concerning the activities of the NBI and any error made by the Pre-Trial Chamber in this respect would not materially affect its overall conclusions.Footnote ¹⁹⁴

133. The OPCV argues that the Philippines' contention that the Pre-Trial Chamber “demanded a level of interrogation and verification of official reports which is not warranted in the article 18 context” is unsubstantiated.Footnote ¹⁹⁵ It argues that “providing a wealth of unrelated and/or inconclusive documentation is […] unwarranted – and this is what barred the Chamber from making a positive finding for deferral”.Footnote ¹⁹⁶

(ii) Determination by the Appeals Chamber

(a) National and regional prosecution offices cases

134. The first example provided by the Philippines concerns two cases in which the NBI recommended indictments.Footnote ¹⁹⁷ In this regard, the Majority recalls that in its Article 18 Observations, the Philippines claimed that a number of investigations conducted by the NBI had resulted in the filing of criminal complaints before different offices of the prosecutors in the Philippines.Footnote ¹⁹⁸ It submitted that (i) the “Partial listing of cases in the dockets of the NPS relating to investigations into deaths during anti-narcotic operations” showed that investigations had been conducted against police officers with respect to their conduct during anti-illegal drug operationsFootnote ¹⁹⁹ and (ii) 52 nanlaban (resisting arrest) cases were referred to the NBI for case build-up.Footnote ²⁰⁰ Of those, according to the Philippines, 19 cases had been resolved, some had been terminated or dismissed for lack of evidence, and in other cases, the NBI found enough evidence to recommend an indictment.Footnote ²⁰¹

135. The information provided in this regard consisted of: “one list of cases from ‘the dockets of the [NPS]’, three lists of cases collated from the dockets of three Regional Prosecution Offices, as well as eight NPS case files”.Footnote ²⁰² The Philippines also “pointed to various indictments that ha[d] been recommended against police officers who were involved in deaths during anti-illegal drug operations”.Footnote ²⁰³

136. In respect of the recommended indictments against police officers – highlighted by the Philippines – the Pre-Trial Chamber noted that the Philippines relied on “various types of documentation, differing in detail and scope”.Footnote ²⁰⁴ The Pre-Trial Chamber observed that some of those items contained “brief summaries of the recommended indictments and include[d] limited details of the result of the NBI's investigation, the charges recommended by the NBI and the status of each case, such as whether they [we]re at trial or remain[ed] at an investigative stage”.Footnote ²⁰⁵ It concluded that:

137. The Philippines submits that it was incorrect for the Pre-Trial Chamber to dismiss, on the basis of the absence of copies of the underlying indictments, the Philippines' information that indictments recommended by the NBI were before regional courts.Footnote ²⁰⁷ The Majority notes in this respect that the Pre-Trial Chamber expressed concerns about the absence of “further documentation, or the indictments themselves” in relation to several cases relied upon by the Philippines.Footnote ²⁰⁸ The supporting documents indicate that reports were transmitted to DOJ Manila recommending the filing of charges against the named police officers.Footnote ²⁰⁹ However, no document has been provided to demonstrate what further steps were taken following the aforementioned recommendations and, notably, whether the indictments recommended by the NBI were actually filed.

138. The Pre-Trial Chamber also noted “inconsistent documentation to suggest that the NBI has in fact dismissed or terminated these cases for lack of evidence”.Footnote ²¹⁰ Indeed, the supporting material suggests that with respect to some of these cases, it was “recommended that these cases be treated closed and terminated”.Footnote ²¹¹ Therefore, contrary to the Philippines' contention, the Pre-Trial Chamber did not reject the information regarding those cases solely due to the absence of the underlying indictments. Rather, the Pre-Trial Chamber was confronted with conflicting information as to the status of those cases. It was therefore not unreasonable for the Pre-Trial Chamber to conclude that the absence of further documentation, especially indictments, made it difficult to assess “whether any concrete and progressive investigatory steps are being taken or to determine whether prosecutions are actually being undertaken by competent national authorities in respect of these cases”.Footnote ²¹²

139. In light of the foregoing, the Majority rejects these arguments of the Philippines.

(b) NBI investigative reports and underlying municipal reports

140. With respect to the second example, the Philippines refers to two preliminary investigation reports conducted by NBI and submitted before the Provincial Prosecutor.Footnote ²¹³ As discussed above in the analysis of the “Matrix of Cases”, the two cases referenced were among six out of a total of 266 cases relied upon by the Philippines to support its claim that the relevant cases had been referred to the NBI for investigation, that were found to fall within the temporal scope of the Court's investigation and had been sufficiently substantiated.Footnote ²¹⁴ The Pre-Trial Chamber assessed documentation consisting of a cover letter entitled “Transmittal letter” from the NBI to the Provincial Prosecutor, which included the official report from the municipal police station of the incident where the suspect died, the NBI's investigation and analysis, and the scope of the NBI's recommended charges.Footnote ²¹⁵ It found that:

141. The Philippines alleges that “the Pre-Trial Chamber rejected two detailed preliminary investigation reports conducted by NBI and submitted before the Provincial Prosecutor, as the ‘referenced attachments which were apparently used to support each recommendation’ were not provided to the Court”.Footnote ²¹⁷ Indeed, the reports in question make reference to attachments,Footnote ²¹⁸ which were apparently not provided. However, as conceded by the Prosecutor,Footnote ²¹⁹ the reports demonstrate some investigative steps and contain an analysis of evidence. The conclusion, at least for one of the reports,Footnote ²²⁰ is that “there exists probable cause to collectively charge” the named individuals with crimes.Footnote ²²¹

142. The Majority notes, however, that the lack of attachments was not the only reason for the Pre-Trial Chamber to state that it was difficult for it to assess whether “these two cases show tangible investigative activity”.Footnote ²²² The Pre-Trial Chamber also noted that “the two cases appear to have been dismissed by the NBI, but no information is provided about the reasons for the dismissals”.Footnote ²²³ Another document indeed indicates that both cases were dismissed.Footnote ²²⁴ In view of this conflicting information, it was not unreasonable for the Pre-Trial Chamber to consider that if it had received the aforementioned attachments, it would have been in a better position to make a finding on the status of those domestic proceedings, and to express reservations as to whether those two cases showed “tangible investigative activity”.

(c) Conclusion on alleged errors in the Pre-Trial Chamber's assessment of the investigative files/materials

143. In view of the foregoing, the Majority finds that the Philippines has failed to demonstrate any error in the Pre-Trial Chamber's findings with respect to the two examples, which, according to the Philippines, demonstrate the investigative steps taken in relation to recommendations and reports by the NBI.

(3) Criminal referrals and disciplinary proceedings

(i) Summary of the submissions

144. The Philippines submits that the Pre-Trial Chamber erroneously rejected the material related to the steps undertaken by the Committee, the DOJ Panel and the PNP-IAS, which “demonstrated the overall and general arc of the investigative processes connected to the anti-illegal drug operations”.Footnote ²²⁵ The Philippines argues that, by treating such material as non-criminal in nature, “the Pre-Trial Chamber undertook a referendum on the Philippines' national legal processes in an isolated and piecemeal manner”.Footnote ²²⁶ It contends that, rather than undertaking a holistic assessment of the investigative cycle before those domestic authorities, “the Pre-Trial Chamber reviewed each stage in isolation and demanded information confirming criminal prosecutions of specific cases above and beyond what is required”.Footnote ²²⁷ According to the Philippines, the Pre-Trial Chamber also failed to take into account the unique character of the Philippines' domestic legal system, being a combination of common and civil law families, as well as the geographic and technological barriers that complicated the process of evidence collection.Footnote ²²⁸

145. In his response to the Appeal Brief, the Prosecutor argues that this aspect of the Philippines' appeal warrants summary dismissal, as the Philippines fails to show any error and does not assert that the Pre-Trial Chamber's conclusions were incorrect or unreasonable.Footnote ²²⁹ He submits that the Philippines raises for the first time on appeal arguments concerning a mandatory progression from the PNP-IAS to review by the DOJ Panel to the case build-up by the NBI, without citing any clear basis requiring this sequence.Footnote ²³⁰ In the view of the Prosecutor, “PNP-IAS investigations and/or reviews by the [DOJ Panel] are not legal prerequisites to the criminal investigation or prosecution of a police officer”.Footnote ²³¹ The Prosecutor notes that the Philippines has not pointed to any concrete further action resulting from the PNP-IAS proceedings.Footnote ²³² The Prosecutor argues that the Philippines provides no support for its argument that the Pre-Trial Chamber was blind to differences in legal culture or tradition.Footnote ²³³

146. The OPCV submits that a demonstration of “the overall and general arc of the investigative processes” is not sufficient “if the documentation lacks the minimal preponderance of the evidence”.Footnote ²³⁴ It argues that the procedural cycle described by the Philippines is flawed, and that the Pre-Trial Chamber's analysis in this respect was “a sensible approach”.Footnote ²³⁵ The OPCV contends that even if the Philippines' assertion that the administrative procedures fit into the broader criminal justice process were correct, the question remains whether such procedures indeed led to criminal investigations and proceedings, which, in its view, the Philippines was unable to demonstrate.Footnote ²³⁶

(ii) Determination by the Appeals Chamber

147. The Pre-Trial Chamber concluded that the activity of the non-criminal and disciplinary mechanisms, namely the PNP-IAS, DOJ Panel and the Committee, did not amount to “tangible, concrete and progressive investigative steps carried out with a view to conducting criminal proceedings”.Footnote ²³⁷

148. In particular, the Pre-Trial Chamber observed that the charts listing 250 NPS cases presented by the Philippines “do not provide information as to whether criminal investigations and prosecutions were initiated against the police officers involved in the killings”.Footnote ²³⁸ The Pre-Trial Chamber also noted that “there is no indication in the material […] suggesting that the DOJ Panel conducts investigative activity by itself before deciding to refer cases to the NBI for further investigation”.Footnote ²³⁹ The Pre-Trial Chamber also observed that the number of reviewed cases (302) was very low compared to the estimated number of alleged killings during the “war on drugs” operations.Footnote ²⁴⁰

149. Regarding the activity of the Committee, the Pre-Trial Chamber found that on the basis of the two lists of cases provided by the Philippines, it was impossible to discern whether those cases concerned killings in the context of the “war on drugs”, and that these lists do not “indicate any concrete investigative activity taken by the Committee itself, whose intervention appear[ed] limited to monitoring and evaluating their status”.Footnote ²⁴¹

150. In relation to the PNP-IAS, the Pre-Trial Chamber noted that, on the basis of the supporting documents, the PNP-IAS disciplinary proceedings were not conducted with the aim, or at least not the primary aim, to further criminal proceedings.Footnote ²⁴² Regarding the 52 nanlaban cases, the Pre-Trial Chamber found that they appeared to have in fact been referred to the NBI.Footnote ²⁴³ However, the Pre-Trial Chamber observed that the list only included limited information for each case,Footnote ²⁴⁴ and did not “provide information as to whether criminal investigations and prosecutions were initiated against the police officers involved in the killings”.Footnote ²⁴⁵ The Pre-Trial Chamber noted that the list of nanlaban cases appeared “to consist of administrative findings and sanctions against the relevant law enforcement personnel involved in each case, with the ‘observations’ similarly outlining general statements on the circumstances of death for each victim”.Footnote ²⁴⁶ It found that “[t]he sole reference in the list to any possible criminal process to be taken against a law enforcement officer is a single recommendation that an appropriate criminal complaint be filed”.Footnote ²⁴⁷ Therefore, in the view of the Pre-Trial Chamber, the list provided neither a sufficient degree of specificity and probative value, nor the information which would have enabled the Chamber “to analyse whether investigative steps into the conduct of the relevant law enforcement agents have in fact occurred or are occurring”.Footnote ²⁴⁸

151. The first argument of the Philippines in relation to the non-criminal and disciplinary proceedings is that the rejection of material regarding those proceedings was a result of the isolated and piecemeal manner of the Pre-Trial Chamber's evaluation.Footnote ²⁴⁹ The Philippines submits that the Pre-Trial Chamber should have found that such material demonstrates the existence of a three-stage mechanism forming an integral part of the broader investigative processes connected to the anti-illegal drug operations.Footnote ²⁵⁰

152. The Philippines does not clarify, however, whether and to what extent the Pre-Trial Chamber's allegedly fragmented analysis affected the conclusions it reached in the Impugned Decision. The Majority notes that the Pre-Trial Chamber was unable to determine that the non-criminal and disciplinary proceedings in question would lead to the opening of criminal investigations or prosecutions,Footnote ²⁵¹ and concluded that, on their own, they were insufficient to amount to “tangible, concrete and progressive investigative steps”.Footnote ²⁵² The Pre-Trial Chamber relied in this respect on the documents provided by the Philippines, which indeed provide scant information about the nature of the proceedings in question or about their potential to lead to investigations or prosecutions. For instance, the lists of 250 NPS cases only describe some evidentiary shortcomings and provide no information on whether criminal investigations followed or whether charges were brought.Footnote ²⁵³ Similarly, the list of 52 nanlaban cases only refers to administrative measures, such as dismissals, demotion or suspension, rather than to criminal proceedings.Footnote ²⁵⁴ The Philippines does not seem to challenge the Pre-Trial Chamber's findings based on these documents. Notably, the Philippines does not explain how the three-stage mechanism, which it describes in the Appeal Brief, would lead to the initiation of criminal proceedings in the listed cases. As a result, the Majority finds that the Philippines had not demonstrated that the Pre-Trial Chamber erred in this regard.

153. The Philippines' second argument concerns the alleged failure on the part of the Pre-Trial Chamber to have due regard to the specific features of the domestic criminal justice system.Footnote ²⁵⁵ However, the only specificity it describes is that the domestic “procedural rules demand a lengthier investigation phase” and that “the commencement of court proceedings following investigation [is] usually immediate”.Footnote ²⁵⁶ The Philippines fails to demonstrate that the Pre-Trial Chamber disregarded this alleged specificity of its legal system. Indeed, even if it were accepted that in the Philippine system, court proceedings immediately follow lengthy investigations, the cases listed in the supporting documentation do not refer to such court proceedings.

154. Similarly, the Philippines does not demonstrate how the alleged “geographic and technological barriers” or the procedural rules prolong investigations,Footnote ²⁵⁷ and why the Pre-Trial Chamber's alleged failure to duly consider such factors affected its assessment of the proceedings in question as being non-criminal.

155. In view of the foregoing, the Majority rejects the Philippines' arguments concerning the non-criminal and disciplinary proceedings.

b. Alleged errors in the Pre-Trial Chamber's assessment concerning the contours of the investigation

156. The Philippines presents examples of the assessments in which the Pre-Trial Chamber allegedly “required a degree of mirroring with the Prosecution's investigations which cannot reasonably exist at this point in the proceedings”.Footnote ²⁵⁸

(1) Investigation of senior officials

(i) Summary of the submissions

157. The Philippines submits that the Pre-Trial Chamber made “an unreasonable assessment”, as it ignored the fact that there were ongoing investigations within the Philippines' jurisdiction in relation to the anti-illegal drugs campaign and it “expected the current status of domestic investigations to match future investigations of the Prosecution”.Footnote ²⁵⁹ The Philippines states that the Pre-Trial Chamber made a “premature assessment” of its investigations, in contravention of the framework of article 18 of the Statute, which allows for periodic updates on the progress of national investigations.Footnote ²⁶⁰ The Philippines argues that its investigations focus on the most responsible perpetrators, who may be low or mid-ranking officials,Footnote ²⁶¹ and that “the only way to establish the culpability of senior officials is through the identification of leads between the direct perpetrator on the one hand and the senior officials on the other”.Footnote ²⁶²

158. In his response to the Appeal Brief, the Prosecutor submits that no sufficiently specific evidence was presented about the existence of proceedings against high-ranking officials.Footnote ²⁶³ He contends that the fact that the Philippines focused on low-ranking individuals made it unclear how the Philippines was investigating “the question of the potential links between criminal incidents, which may be significant to the contextual element of crimes against humanity”.Footnote ²⁶⁴

159. The OPCV argues that “in reference to the policy element and systematic nature of the alleged crimes, the Philippines has not show[n] that it carried out domestic proceeding towards high-ranking officials”.Footnote ²⁶⁵

(ii) Determination by the Appeals Chamber

160. In its discussion of the “[p]olicy element and systematic nature of the alleged crimes”, the Pre-Trial Chamber addressed the issue of whether the Philippines “investigated any pattern of criminality or systematicity, including by those who would appear to be most responsible for conceiving or implementing a policy”.Footnote ²⁶⁶ The Pre-Trial Chamber held that “given the Court's role and purpose, and the fact that the authorised investigation concerns alleged crimes against humanity, high-ranking officials are expected to be the investigation's focus”.Footnote ²⁶⁷ As such, “since [the domestic proceedings in the Philippines] only address the physical, low-ranking perpetrators and at present do not extend to any high-ranking officials”,Footnote ²⁶⁸ the Pre-Trial Chamber found that they “do not sufficiently mirror the expected scope of the Court's investigation”.Footnote ²⁶⁹

161. Regarding the Philippines' argument that the culpability of senior officials is established through the identification of leads between them and the direct perpetrators,Footnote ²⁷⁰ the Majority notes that the Pre-Trial Chamber considered a similar argument. The Philippines argued before the Pre-Trial Chamber that “the ‘lowly officers’ identified as the actual perpetrators in alleged killings during anti-drug operations ‘are vital leads that may link higher-ranking officials as part of the chain of command in the commission of the crimes’”.Footnote ²⁷¹ The Pre-Trial Chamber found that the domestic proceedings did not extend to any high-ranking officials,Footnote ²⁷² despite the above-mentioned expectation that such officials should be the focus.Footnote ²⁷³ The Pre-Trial Chamber made it clear that its assessment concerned the domestic proceedings conducted “at present”.Footnote ²⁷⁴ The Majority notes in this respect that the Philippines only argues that the identification of leads may facilitate the investigation of high-ranking officials.Footnote ²⁷⁵ However, the Philippines does not argue that any such investigation, based on leads identified in this way, is being carried out “at present”.

162. Furthermore, the Pre-Trial Chamber indicated that its findings did not “preclude the Philippines from providing material in the future in order for the Prosecution, or the Chamber, to determine inadmissibility on the basis of complementarity, if and when needed”.Footnote ²⁷⁶ The Pre-Trial Chamber thus allowed for the possibility that the status of domestic proceedings may change. The Majority notes in this regard that this is without prejudice to the question of whether the Statute actually allows a State to submit a second request for deferral under article 18(2) or, rather, a challenge to the admissibility of a case, when one has been initiated, as stipulated in article 18(7).Footnote ²⁷⁷

163. Regarding the Philippines' argument that the most responsible perpetrator may be a low or mid-ranking official,Footnote ²⁷⁸ the Appeals Chamber indeed previously noted that “individuals who are not at the very top of an organization may still carry considerable influence and commit, or generate the widespread commission of, very serious crimes”.Footnote ²⁷⁹ However, the Majority observes that the Pre-Trial Chamber's enquiry was whether the domestic proceedings sufficiently mirror the Prosecutor's intended investigation. More specifically, in light of the fact that the Prosecutor's intended investigation concerns alleged crimes against humanity, the Pre-Trial Chamber expected the domestic proceedings to focus on high-ranking officials.Footnote ²⁸⁰ Furthermore, in relation to the contextual elements of the alleged crimes against humanity, the Pre-Trial Chamber noted that “the Philippines does not contest the Prosecution's suggestion that it has failed to inquire into any pattern of criminality or the systematic nature of crimes”.Footnote ²⁸¹ Given the above, the Majority finds that the Philippines has failed to show any error on the part of the Pre-Trial Chamber in this regard.

(2) Investigations of vigilantes

(i) Summary of the submissions

164. The Philippines submits that the Pre-Trial Chamber erred in finding that no material provided by the Philippines suggested that the Philippines investigated the killings outside of police operations, as, in the Philippines' view, such killings “still had some link to law enforcement”.Footnote ²⁸² The Philippines argues that “[t]he investigation of law enforcement officials by the Philippine Government is therefore also a means to identify leads in relation to the role of law enforcement in killings conducted outside of police operations”.Footnote ²⁸³ However, the Philippines states that “[t]he fact that conduct or categories of perpetrators are not yet clearly defined is again reflective of the stage of the investigation”.Footnote ²⁸⁴ Referring to the domestic proceedings with respect to the Davao Death Squad – an alleged vigilante group connected to extrajudicial killings, the Philippines contends that the Pre-Trial Chamber applied “a much higher standard to assess the degree of overlap between the domestic and Prosecution investigations than is warranted in article 18 context”.Footnote ²⁸⁵

165. In his response to the Appeal Brief, the Prosecutor submits that the Philippines asserts for the first time expressly that the killings outside of police operations had some link to law enforcement.Footnote ²⁸⁶ He contends that the Philippines is inaccurate to claim that the Pre-Trial Chamber's “alleged ‘failure to take into account the material connected to the Davao Death Squad can only be explained by virtue of its application’ of an overly strict standard”.Footnote ²⁸⁷ The Prosecutor argues that the Philippines “overlooks that the [Pre-Trial] Chamber did not ignore domestic proceedings concerning the alleged Davao Death Squad Killings […] but expressed concerns about the specificity and probative value of the material provided”.Footnote ²⁸⁸ He notes that the Ombudsman's investigation referred to by the Philippines relates to the alleged killings which fall outside the temporal scope of the Court's investigation and that it appeared to be an administrative proceeding.Footnote ²⁸⁹

(ii) Determination by the Appeals Chamber

166. In its discussion of the “[k]illings outside police operations”, the Pre-Trial Chamber addressed the issue of whether the Philippines provided sufficient information about past or ongoing investigations or prosecutions relating to killings outside police operations. In this regard, the Pre-Trial Chamber found that the Philippines “ha[d] not provided any material that would suggest it ha[d] investigated alleged killings related to the ‘war of drugs’ that did not take place as part of police operations”.Footnote ²⁹⁰ The Pre-Trial Chamber noted that “the part of the authorised investigation concerning private individuals does not appear to be covered by any domestic investigations”,Footnote ²⁹¹ whereas the Article 15 Decision extended the authorisation to cover the killings by private individuals outside law enforcement operations.Footnote ²⁹² In particular, the Article 15 Decision referred to thousands of alleged killings committed outside the context of the official police operations.Footnote ²⁹³

167. The Philippines' argument that the investigation of law enforcement officials may help identify leads in relation to the role of law enforcement in killings conducted outside of police operationsFootnote ²⁹⁴ is not persuasive. Similar to its submissions on the investigations of senior officials, discussed above, the Philippines did not provide material showing that such leads were in fact identified or that domestic proceedings extending to the killings outside of police operations are conducted at present. On the contrary, the Philippines concedes that “the conduct or categories of perpetrators are not yet clearly defined”, which, in its view, “is […] reflective of the stage of the investigation”.Footnote ²⁹⁵

168. The Philippines submits that it provided material concerning the extrajudicial killings attributed to the Davao Death Squad.Footnote ²⁹⁶ The Pre-Trial Chamber found in this regard that: (i) most of the proceedings with respect to those killings related to events that fall outside the temporal scope of the Court's investigation,Footnote ²⁹⁷ (ii) it was not clear whether some of those domestic proceedings were conducted in support of criminal prosecutions,Footnote ²⁹⁸ and (iii) some of the material provided in support fell short of the required standard of specificity and probative value.Footnote ²⁹⁹

169. The Philippines did not provide any other examples of domestic proceedings concerning the killings outside law enforcement operations. Therefore, the Majority finds that the Philippines has failed to demonstrate that the Pre-Trial Chamber erred in finding that the Philippines had not provided any material showing that it investigated the alleged killings outside of police operations.Footnote ³⁰⁰

(3) Davao killings

(i) Summary of the submissions

170. The Philippines submits that the Pre-Trial Chamber dismissed the material which demonstrated that domestic investigations had been conducted in relation to the killings in Davao in the period 2011 to 2016.Footnote ³⁰¹ The Philippines argues that the Pre-Trial Chamber criticised the Philippines' use of media articles to demonstrate the existence of on-going investigations and prosecutions, despite the fact that the Prosecutor had relied on similar media sources in the Article 15 Request.Footnote ³⁰² The Philippines also submits that “[r]egardless of the source of material at this stage, the information relied upon by the Philippine Government showed that aspects of its investigations did overlap with the broad nature of the Prosecution's investigations concerning alleged killings in Davao”.Footnote ³⁰³ The Philippines argues that “[i]t is the prima facie existence of the investigation which must be assessed at this stage” and that the Pre-Trial Chamber applied “a higher standard than is warranted when determining an article 18(2) application”.Footnote ³⁰⁴

171. In his response to the Appeal Brief, the Prosecutor contends that the Philippines incorrectly asserts that the Pre-Trial Chamber applied a stricter standard than permitted, and that the Philippines “essentially argues that the Court must accept the Philippines' word and not require evidence”, which is “inconsistent with the evidence-driven, objective approach which is fundamental to any kind of analysis under article 17”.Footnote ³⁰⁵ He also submits that the Pre-Trial Chamber “reasonably rejected” the Philippines' additional reliance on media articles, and that “it shows no error to point to the fact that the Prosecution had relied on media articles for a different purpose” in its Article 15 Request.Footnote ³⁰⁶ As a result, the Prosecutor argues that the Pre-Trial Chamber was “neither incorrect nor unreasonable in finding that the Philippines has not taken sufficient tangible, concrete and progressive steps towards investigating alleged crimes in Davao”.Footnote ³⁰⁷

(ii) Determination by the Appeals Chamber

172. In its discussion of the “[c]rimes in Davao region”, the Pre-Trial Chamber addressed the issues of whether “the Philippines failed to identify any investigative steps or prosecutions with regard to the hundreds of alleged killings committed during 2011-2016 in.the city of Davao”, and whether “this failure alone justifies the resumption of the Court's investigation”.Footnote ³⁰⁸ The Pre-Trial Chamber recalled that “according to the list of 176 murder incidents recorded by the Davao City Police Office in the period 2011-2016, and the explanation provided in the [Philippines'] Observations, 168 of those incidents did give rise to a case before a court, among those, 51 have been solved and eight are under investigation”.Footnote ³⁰⁹ The Pre-Trial Chamber noted that the list does not contain (i) any information allowing it to identify “whether any of the 176 incidents listed correspond to the killings referred to in the Article 15 Decision” and (ii) information about “the status of the 109 cases that are not identified as resolved or under investigation”.Footnote ³¹⁰ As a result, the Pre-Trial Chamber concluded that the material submitted lacked the required degree of specificity and probative value, despite the fact that “[t]he Philippines' authorities have access to official documents and are in a position to provide detailed information on their domestic proceedings”.Footnote ³¹¹

173. The Pre-Trial Chamber referred to other mechanisms relied upon by the Philippines, including the 2009 investigation by the Commission on Human Rights (hereinafter: “CHR”) into the vigilante killings in Davao City, the Ombudsman disciplinary process against 21 Philippine National Police (hereinafter: “PNP”) officers for failure to resolve the killings in Davao City, the 2012 CHR Resolution entitled “Extra-Judicial Killings Attributed or Attributable to the so-called Davao Death Squad”, and the Field Investigation Office's Fact Finding Report.Footnote ³¹² The Pre-Trial Chamber held that “most of [these mechanisms] concern events that occurred in Davao prior to 2011 and, as such, fall outside of the temporal scope of the investigation as authorised in the Article 15 Decision” and that, as a result, it was “not necessary to consider whether those mechanisms can show the existence of investigations”.Footnote ³¹³

174. With respect to the Senate enquiries, the Pre-Trial Chamber noted that the “inquiries carried out by political bodies may be relevant to assess investigative activity, but only if they are carried out with a view to conducting criminal (investigations and) prosecutions”.Footnote ³¹⁴ However, the Pre-Trial Chamber found that it was not clear what investigative measures were undertaken, and that the Philippines “[did] not suggest that the inquiries considered the criminal responsibility of individuals, or were conducted in support of criminal prosecutions”.Footnote ³¹⁵

175. The Pre-Trial Chamber also noted that “several media articles are relied on to substantiate the existence of investigative mechanisms” in the material provided by the Philippines, and observed that “a State ought to be in a position to present material with a higher probative value to substantiate its actions”.Footnote ³¹⁶

176. The Philippines argues that the Pre-Trial Chamber failed to take into account the material upon which the Philippines relied, and that this failure “can only be explained by virtue of its application of a much higher standard […] than is warranted in an article 18 context”.Footnote ³¹⁷ The Majority notes, however, that the Pre-Trial Chamber rejected part of the material regarding the Davao Death Squad, because the events in question fell outside the temporal scope of the Court's authorised investigation.Footnote ³¹⁸

177. Regarding other domestic proceedings, the Pre-Trial Chamber expressed concerns about the relevance of the list of murder incidents recorded by the Davao City Police Office and relied upon by the Philippines. Indeed, the document merely lists “Murder Cases between 2011-June 30, 2016”, dates of commission and information on whether the cases were “cleared” and “solved”.Footnote ³¹⁹ The Majority therefore considers that the Pre-Trial Chamber reasonably found that the list did not allow it to identify whether the listed murder cases corresponded to the killings referred to in the Article 15 Decision, nor to ascertain the status of those cases.Footnote ³²⁰

178. The Philippines also argues that the Pre-Trial Chamber erroneously criticised the Philippines' use of media articles, noting that the Prosecutor also relied on media sources in the Article 15 Request.Footnote ³²¹ The Prosecutor avers in his Response to the Appeal Brief that the Article 15 Request relied on media articles for a different purpose.Footnote ³²²

179. The Pre-Trial Chamber took note of the Philippines' reliance on “several media articles” and concluded that “material with a higher probative value” ought to have been provided.Footnote ³²³ The Majority considers that a State is indeed in a position to present official material with a higher probative value than media articles to substantiate the existence of investigative mechanisms.

180. The Majority further notes that with respect to the Philippines' reliance on media articles in its Article 18 Observations concerning the alleged killings in the Davao region,Footnote ³²⁴ at least one of them concerns the events which the Pre-Trial Chamber found to fall outside the temporal scope of the Court's authorised investigations;Footnote ³²⁵ two others concern the proceedings for which the Philippines also provided official sources;Footnote ³²⁶ and one of them relates to an investigation by the DOJ,Footnote ³²⁷ which, in the view of the Pre-Trial Chamber, “does not amount to relevant investigations within the meaning of article[s] 17 and 18 of the Statute”,Footnote ³²⁸ and would be of limited significance to the Pre-Trial Chamber's enquiry as it was in fact “shelved”, according to the Philippines' Article 18 Observations.Footnote ³²⁹

181. In light of the foregoing, the Majority considers that it was not unreasonable for the Pre-Trial Chamber to conclude that the Philippines ought to have presented material with a higher probative value, rather than relying solely on media articles, to substantiate the existence of investigations.

182. As a result, the Majority rejects the Philippines' arguments with respect to the alleged killings in Davao.

(4) Other crimes

(i) Summary of the submissions

183. The Philippines submits that although it enumerated its investigations of crimes other than murder, the Pre-Trial Chamber erroneously found that “[t]he limited number of cases mentioned by the Philippines, and the type of persons charged, means that these cases cannot represent the range and scope of crimes of the Court's investigation”.Footnote ³³⁰ The Philippines contends that “there is no specific detail concerning the commission of ‘other crimes’ in either the Article 15 Request or the Article 15 Decision”.Footnote ³³¹ It argues that in the absence of such detail, “it is almost impossible for the Philippine Government to meet the Pre-Trial Chamber's erroneous demands”.Footnote ³³²

184. In his response to the Appeal Brief, the Prosecutor submits that the Philippines misunderstands the analysis required by article 18.Footnote ³³³ In particular, he argues that the standard applied by the Pre-Trial Chamber was that the Philippines' investigation “sufficiently rather than ‘substantially’ mirrored the Court's investigation”.Footnote ³³⁴ The Prosecutor contends that on the basis of the Article 15 Request, the Philippines had “adequate notice of the range and scope of additional crimes which may form part of the Court's investigation” and consequently, “was in a position to provide information of criminal proceedings”.Footnote ³³⁵ Regarding the Pre-Trial Chamber's assessment of the specific material provided by the Philippines in support of its contentions, the Prosecutor submits that “[g]iven the nature and scale of the alleged events forming the context of the Court's investigation, the Chamber's conclusion that the remaining domestic proceedings were insufficient for the purpose of article 18(2) […] was entirely reasonable”.Footnote ³³⁶

(ii) Determination by the Appeals Chamber

185. At the outset, the Majority notes that in the Article 15 Request, the Prosecutor requested that any authorised investigation also include “other crimes” sufficiently linked to the “war on drugs” campaign.Footnote ³³⁷ Referring to the alleged beatings and other mistreatment, the Prosecutor stated that “[s]uch conduct may constitute the additional Crimes Against Humanity of Torture or Other Inhumane Acts under articles 7(1)(f) and (k) of the Statute”.Footnote ³³⁸ When authorising the Prosecutor's investigation, the Pre-Trial Chamber indicated that the investigation could “extend to any crime within the jurisdiction of the Court”.Footnote ³³⁹

186. When seeking the Pre-Trial Chamber's authorisation to resume the investigation, following the Philippines' request for deferral, the Prosecutor provided further information on “other potential crimes”, indicating that they may also constitute crimes under article 7(1)(e), (i) and (g) of the Statute.Footnote ³⁴⁰

187. The Pre-Trial Chamber acknowledged this, stating that “the Prosecution had noted allegations of acts that may constitute torture or other inhumane acts under article 7(1)(f) and (k) of the Statute, imprisonment or other severe deprivation of liberty under article 7(1)(e) of the Statute; enforced disappearance under article 7(1)(i) of the Statute; and [sexual and gender-based crimes] under article 7(1)(g) of the Statute”.Footnote ³⁴¹

188. Recalling that it had authorised the investigation to extend to any crime within the jurisdiction of the Court, the Pre-Trial Chamber concluded that “[t]he limited number of cases mentioned by the Philippines, and the type of persons charged, means that these cases cannot represent the range and scope of crimes of the Court's investigation”.Footnote ³⁴² In reaching this conclusion, the Pre-Trial Chamber assessed “four specific cases, a ‘partial listing’ of cases on the NPS's docket, and a resolution dated 27 November 2020”, relied upon by the Philippines in its Article 18 Observations.Footnote ³⁴³ It found that “[o]ne of the cases […], and the events covered by the NPS Consolidated Resolution […] concern events that fall outside the temporal scope of the authorised investigation”.Footnote ³⁴⁴ Further, “in only two occasions a crime other than murder was pursued, and in only one case actual charges for a crime other than murder were brought”.Footnote ³⁴⁵

189. The cases to which the Philippines referred in its Article 18 Observations were the following: (i) the arrest of a police officer of the Manila Police District accused of raping a 15-year-old girl;Footnote ³⁴⁶ (ii) the dismissal of a former chief of the Philippine National Police Custodial Service Unit due to an alleged sexual assault complaint;Footnote ³⁴⁷ (iii) investigations related to anomalous secret jails uncovered by the CHR in 2017 and related charges against Metro Manila police officers;Footnote ³⁴⁸ and (iv) charges of unlawful arrest, false testimony and violation of the Republic Act No. 9165 brought against police officers involved in a buy-bust operation.Footnote ³⁴⁹

190. Furthermore, the Philippines cited a partial listing of cases in the NPS' dockets, which, in its view, “clearly showed that investigations were conducted against police officers with respect to their conduct of anti-illegal drug operations”.Footnote ³⁵⁰ Lastly, it claimed that additional cases had been filed against police officers concerning resisting arrest cases, while 250 additional incidents were “still undergoing the required review process to ensure that any incident recommended for prosecution will stand trial”.Footnote ³⁵¹

(a) Alleged lack of detailed notice

191. The Philippines argues that no specific detail of other crimes was included in either the Article 15 Request or the Article 15 Decision, making it “almost impossible” for the Philippine Government to meet the Pre-Trial Chamber's demands.Footnote ³⁵² The Majority notes that the Prosecutor's Article 15 Request and the Pre-Trial Chamber's Article 15 Decision do not provide detail of all crimes other than murder which the Prosecutor intends to investigate. The Prosecutor only referred to alleged beatings and other mistreatment, as well as the “instances in which victims' family members were forced to witness the killings”.Footnote ³⁵³ However, in his Article 18(2) Request, the Prosecutor provided more detail. He referred to instances of imprisonment or other severe deprivation of liberty under article 7(1)(e), enforced disappearance under article 7(1)(i) and rape or other sexual violence under article 7(1)(g) of the Statute.Footnote ³⁵⁴ As evidenced by the content of its Article 18 Observations, the Philippines appeared to be sufficiently informed of the focus of the Prosecutor's authorised investigation. Indeed, the Article 18 Observations refer to allegations of crimes similar to the ones listed in the Prosecutor's documents.

192. The Majority further notes that in his Article 18(2) Request, the Prosecutor provided examples of crimes which he intends to investigate. He referred to: (i) detention of victims by police “for hours or days […] in official or unofficial prisons without charges, without access to counsel”, in some cases as part of so-called “One Time Big Time” operations; (ii) “refusals by the police to acknowledge the arrest or abduction or to provide information regarding the fate or whereabouts of the victims”; and (iii) “accounts of rape of women and girls prior to their murder, and allegations that some female family members of potential victims were forced to perform sexual acts in exchange for promises that their loved ones would be spared”.Footnote ³⁵⁵

193. In view of the foregoing, the Majority rejects the Philippines' argument that due to an alleged insufficiently detailed notice it was unable to provide information on the relevant domestic proceedings.

(b) Specific cases referred to in the Article 18 Observations

194. In its Article 18 Observations, the Philippines relied on an online press article reporting that a police officer was arrested on suspicion of rape, and that a police chief director ordered the filing of criminal and administrative cases against him.Footnote ³⁵⁶ Although the Pre-Trial Chamber was concerned about the “deficient support” for the Philippines' contention that the Philippines had prosecuted police officers as a result of its investigation of crimes other than murder which appeared to have been committed in connection with anti-drug operations, it appears to have acknowledged that in two occasions, prosecution of “a crime other than murder was pursued”.Footnote ³⁵⁷

195. In its Article 18 Observations, the Philippines also relied on an online press article about the dismissal of a former chief of the PNP Custodial Centre from the service due to an alleged sexual assault complaint.Footnote ³⁵⁸ Noting that the supportive material for this incident suggests that the assault occurred in June 2020, the Pre-Trial Chamber concluded that the incident falls outside the temporal scope of the authorised investigation.Footnote ³⁵⁹

196. Furthermore, the Philippines relied on an online press article reporting that in 2017, the CHR had discovered that a dozen men and women were detained in a secret cell behind the Manila police station, but that the charges against the police officers who were purportedly involved in the illegal detention were later dismissed by the Ombudsman for lack of probable cause.Footnote ³⁶⁰ In the Impugned Decision, the Pre-Trial Chamber referred to the Prosecutor's argument that the Philippines did not substantiate that concrete investigative steps were taken in this instance.Footnote ³⁶¹ The Pre-Trial Chamber also appears to have concluded that this case was none of the three cases in which a crime was pursued or charges were brought.Footnote ³⁶²

197. Relying on the “Review Resolution”, the Philippines, in its Article 18 Observations, described a case against eight police officers for unlawful arrest, perjury and violation of the Republic Act No. 9165.Footnote ³⁶³ According to the “Review Resolution”, a national prosecutor recommended the filing of the resolution with court.Footnote ³⁶⁴ In the Impugned Decision, the Pre-Trial Chamber appears to have referred to this case as one of the two cases in which charges were brought.Footnote ³⁶⁵

198. Referring to a list of cases in the NPS' dockets and a “Joint Resolution”, the Philippines submitted that investigations were conducted with respect to 13 incidents involving police officers.Footnote ³⁶⁶ Regarding the cases in the dockets of the NPS, the Pre-Trial Chamber observed that there was only one on-going case involving a crime other than murder, where one of the charges was torture.Footnote ³⁶⁷ The “Joint Resolution” concerned complaints against police officers for kidnapping/serious illegal detention with murder allegedly committed in February 2020.Footnote ³⁶⁸ In the Impugned Decision, the Pre-Trial Chamber found that the resolution concerned events falling outside the temporal scope of the authorised investigation.Footnote ³⁶⁹

199. In its Article 18 Observations, the Philippines argued that an “additional 250 incidents” had been referred to the NBI by the DOJ for review “to ensure that any incident recommended for prosecution will stand trial”.Footnote ³⁷⁰ The Pre-Trial Chamber, however, noted in this regard that no material was provided to demonstrate that the Philippines was indeed investigating or prosecuting these cases. Consequently, it was not satisfied that this in and of itself amounted to a concrete investigative step.Footnote ³⁷¹

(c) Conclusion on alleged errors in the Pre-Trial Chamber's assessment concerning the contours of the investigation of other crimes

200. The Majority finds that the Philippines has not demonstrated that the Pre-Trial Chamber erred in finding that “[t]he limited number of cases mentioned by the Philippines, and the type of persons charged, means that these cases cannot represent the range and scope of crimes of the Court's investigation”.Footnote ³⁷² The above review of the relevant material shows that although the Philippines had received sufficient notice of the crimes, other than murder, which the Prosecutor intends to investigate, it provided information only on a few relevant cases in which charges were brought or the alleged crime was prosecuted. Accordingly, the Majority rejects the Philippines' arguments in this regard.

(5) Conclusion on alleged errors in the Pre-Trial Chamber's assessment concerning the contours of the investigation

201. In light of the foregoing, the Majority rejects this part of the third ground of appeal. As discussed in the beginning of this section, these essentially factual errors raised by the Philippines are alleged to be a result of the general legal error of applying too high a threshold of substantiating the existence of domestic investigations and prosecutions,Footnote ³⁷³ as well as too high a standard to assess the degree of overlap between the domestic and Prosecution investigations.Footnote ³⁷⁴ The Majority finds that by failing to show instances in which the Pre-Trial Chamber allegedly applied the wrong threshold or standard, the Philippines has also failed to demonstrate the alleged legal error.

iii. Overall conclusion on ground of appeal 3

202. Having rejected the totality of the Philippines' arguments regarding the application of the alleged erroneous admissibility test and the examples of alleged erroneously assessed domestic proceedings, the Majority rejects ground of appeal 3.