ICC appeal: It can go either way
In this Nov. 7, 2019 file photo, the International Criminal Court, or ICC, is seen in The Hague, Netherlands. (File photo by PETER DEJONG / Associated Press)
MANILA, Philippines — Today the Appeals Chamber (AC) of the International Criminal Court (ICC) will decide whether to stop the ICC prosecutor’s investigation of the extrajudicial killings in the Philippines’ “war on drugs.” The AC can actually go either way. I will now explore how.
Complementarity
But first, the issue on which the odds are clearly stacked against the Philippine government. The threshold principle of complementarity says that the ICC is merely a court of last resort, and that national courts should have the first crack at it “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”
The Philippine government argues that our judicial system is functioning. Yes, that is very correct but it is also very incomplete because it addresses only one-half of the “unwilling or unable” test.
Sure it blocks the claim that we are “unable” (a situation where our judicial system has totally collapsed) but it cannot surmount the test of “unwillingness” (which means that, despite our functioning courts, we are dragging our feet and allowing the cases to gather dust). What can we show more than seven years since the “war on drugs” began in 2016? A mere handful of convictions and investigations, limited to police operations, typically of lower-level personnel, and typically noncriminal, administrative measures.
The ICC Pre-Trial Chamber (PTC) had earlier found that the Philippine government failed to show “evidence of a sufficient degree of specificity and probative value” that it was taking “tangible, concrete and progressive investigative steps.”
Article continues after this advertisementOf course, maybe the Philippine government can still get lucky, in case the AC—faced with more current crimes being committed in Ukraine where the people are fighting for their freedoms—would rather not waste its energy on a faraway land where the sovereign people see the brutal killings not as crimes that must be punished but as good politics that must be rewarded.
Article continues after this advertisementWithdrawal from Rome Statute
But the issue on which the AC decision will most probably turn is the Philippine withdrawal from the Rome Statute. More specifically, the key provision says that withdrawal will not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”
These are the key dates. The ICC prosecutor issued statements on the extrajudicial killings in the Philippines way back in 2016 and 2017, and announced its preliminary examination in February 2018. The Philippines withdrew from the Rome Statute only in March 2018, which took effect in March 2019 after the lapse of the mandatory one-year period under the Statute. However, it was only in June 2021 that the ICC prosecutor filed with the Court her request for permission, as a result of its preliminary examination, to open a formal investigation, which was granted in September 2021.
It all depends on how the AC determines when a matter is “already under consideration by the Court.” Is it when the prosecution began its preliminary examination, or when it seeks permission to proceed to a formal investigation, or when the ICC PTC grants such permission?
On one hand, the Philippine government might prevail if the AC interprets “already under consideration by the Court” strictly. In this scenario, the AC will say that the preliminary examination does not trigger the extension of jurisdiction after withdrawal. For that purpose, what is needed is either the prosecution’s request to proceed or the ICC PTC’s granting of the request, neither of which had transpired when our withdrawal took effect in 2019. Therefore, in the language of the Rome Statute, the withdrawal bars the “continued consideration … by the Court” of the Philippine situation. Indeed, how can the Court “continue” to consider what had not yet begun?
In this strict reading, the word “Court” is made to refer solely to the judicial chambers (Pre-Trial, Trial or Appeals Chambers), and “under consideration” assumes that the case has progressed beyond the mere preliminary examination. The Court will thus distinguish the Philippine situation from the Burundi case, where the ICC PTC actually approved the opening of the formal investigation before the withdrawal took effect.
On the other hand, the Philippine government may lose if the AC interprets the key clause broadly. In this scenario, “Court” refers to any of the offices created as part of the ICC under the Rome Statute, including the prosecutor, and “under consideration” means simply that, at the time the withdrawal took effect, the prosecution was already looking into the extrajudicial killings in the war on drugs. In this liberal reading, the Philippine government will lose because the “matter” was already being considered by the prosecutor as early as 2018 when it announced its preliminary examination.
Significantly, the Rome Statute’s Article 127 pertains to the effect of withdrawal on two different issues: first, judicial cooperation (for example, mutual assistance in investigation and evidence-gathering), and second, the issue we’re dealing with now, jurisdiction (“continued consideration”).
With regard to the first, Article 127 sets a high bar. In order for the duty of judicial cooperation to subsist even after withdrawal, an actual “criminal investigation or proceeding” must have been “commenced.” Contrast that to the less specific language for the second issue of jurisdiction which refers merely to “any matter … under consideration.”
Analyses
On the issue of withdrawal, it is extremely doubtful that the AC will limit “the Court” to refer merely to the judicial chambers. The Rome Statute is replete with references to “the Court” that includes all institutions created under the State, like the prosecutor, and a narrow reading does not seem apt in this case. “Under consideration” by the prosecutor (and not by the ICC PTC) will most probably suffice to vest continuing jurisdiction after withdrawal.
On the other hand, the AC may still uphold the Philippine government’s appeal if the AC will push the prosecution to move faster by requiring them to request permission to open a formal investigation (not a mere preliminary examination) before the withdrawal takes effect within the mandatory one-year period. The AC may use this case to prod the prosecution toward more discipline in conducting their preliminary examinations which, as argued in the Philippine appeal, is just an internal procedure, opaque and amorphous, within the Office of the Prosecutor, that was not contemplated under the Statute to trigger the Court’s jurisdiction. The AC may thus uphold the Philippine appeal on the ground that the prosecution’s preliminary examination did not place the Philippine situation “under consideration,” and throw out the case altogether.
Finally, the strongest point going against the Philippine appeal is the fundamental principle that the Court has jurisdiction over all crimes committed while it was a signatory to the Rome Statute. The ICC was created “to put an end to impunity.” Allowing a state to withdraw and escape justice is incompatible with the object and purpose of the Rome Statute.
We can parse the meaning of “under consideration by the Court” by downgrading the effect of the preliminary examination, and let the extrajudicial killings go unpunished. Either it matters, or it does not. The prosecutor’s preliminary examination was sufficient to trigger the Philippines to withdraw from the Rome Statute. It should be equally sufficient to trigger the Court’s continuing jurisdiction even after withdrawal. It cannot matter for one purpose, but not for the other.
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The author is a former ICC judge; former publisher, Philippine Daily Inquirer; and professor and former law dean, University of the Philippines.
