On July 18, 2023, the Appeals Chamber (AC) of the International Criminal Court (ICC) released a much-awaited Judgement in the ICC investigation Situation in the Republic of the Philippines. The Philippine Government had claimed, inter alia, that the Office of the Prosecutor (OTP) could no longer launch its investigation in light of the country’s withdrawal from the Rome Statute. In a 3-2 decision, with two judges jointly filing a dissenting opinion, the AC dismissed the appeal.
The split opinion highlights the possibility that the question of temporal jurisdiction is far from over and could rear its head again as proceedings progress. Advocates should begin laying the groundwork for an answer. This the article seeks to do by asking the essential question: What does it mean for a matter to be “already under consideration by the Court”?
Rodrigo Roa Duterte was elected as president in 2016 on a law-and-order campaign promise to “fatten the fish in Manila Bay” with the corpses of criminals. On July 1, 2016, the Philippine National Police launched “Project Double Barrel”— Duterte’s “Anti-Illegal Drugs Campaign Plan.”
The drug war caught the eye of then-ICC Prosecutor Fatou Bensouda early into Duterte’s presidency. On Oct. 13, 2016, in an official statement “concerning the situation in the Republic of the Philippines” (notably, with the word “situation” spelled with the lowercase “s”), Bensouda announced that the OTP was “closely following developments in the Philippines
[…] with a view to assessing whether a preliminary examination […] needs to be opened.”
It was not until Feb. 8, 2018, that the OTP opened a Preliminary Examination into the situation in the Philippines. In response, Duterte ordered the Philippines’ withdrawal from the Rome Statute in accordance with Article 127.
The Philippines’ withdrawal came into effect on Mar. 17, 2019, yet it was only two years later — on May 24, 2021, that the OTP sought authorization to open an investigation in the Situation in the Philippines. That authority was granted by Pre-Trial Chamber (PTC) on Sep. 15, 2021 (the Authorization Decision). The Philippine government did not challenge the Authorization Decision and instead, come Nov. 18, 2021, lodged a deferral request pursuant to Article 18(2), which immediately suspended the OTP’s investigation.
On June 24, 2022, the OTP filed with the PTC a request for authority to resume its investigation. Despite staunch objection by the Philippine government that it was “able and willing to genuinely investigate” the crimes itself — notably, a ground of complementarity and not jurisdiction — the PTC authorized the resumption of the investigation on Jan. 26, 2023. (the Resumption Decision).
On Feb. 3, 2023, the Philippine government filed its Notice of Appeal against the Resumption Decision. The government echoed its complementarity arguments, but likewise invoked a new ground: temporal jurisdiction.
The Appeals Chamber Decision
In its appeal brief, the Philippine government claimed, among other things, that the ICC has already lost jurisdiction over the Philippines in light of the country’s withdrawal from the Rome Statute. While Article 127 may indeed contain a without prejudice clause, (i.e. that withdrawal shall not prejudice “any matter” already under consideration by the Court), the Philippine government argued that a preliminary examination — a purely internal process of the OTP which precedes an authorization request — would not count.
On July 18, 2023, the AC denied the Philippine government’s appeal. The majority ruled: “since the [Resumption] decision does not constitute a decision with respect to jurisdiction […] the Appeals Chamber cannot entertain the Philippines’ appeal on this point.” In so ruling, the AC was able to avoid addressing the merits of the government’s temporal contest.
Yet while the majority (Judges Piotr Hofmański, Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa) washed its hands of addressing the withdrawal issue, the dissenting opinion of Judges Marc Perdin de Brichambaut and Gocha Lordkipanidze squarely addressed it. They wrote: “We consider that the PTC erred in law in concluding that the Court had jurisdiction despite the Philippines’ withdrawal. The Court cannot exercise jurisdiction in the Philippines Situation.”
At a 3-2 vote, the ICC retained jurisdiction by the skin of its teeth.
Analysis of Temporal Jurisdiction
The ICC has communicated quite clearly that this case will turn on temporal jurisdiction, a matter so controversial that both the PTC and AC have avoided addressing the crux of the issue: Article 127.
While the PTC in the Authorization Decision indeed addressed the issue of temporal jurisdiction, it did so by skirting the specific language of Article 127, which reads, in relevant part:
A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it 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.
The PTC ruled:
- While the Philippines’ withdrawal from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 March 2019. This is in line with the law of treaties, which provides that withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination. Moreover, in the Burundi situation, Pre-Trial Chamber III held that a State Party’s withdrawal from the Rome Statute does not affect the Court’s exercise of jurisdiction over crimes committed prior to the effective date of the withdrawal.
Rather than citing Article 127 — the Rome Statute’s specific provision on the effects of withdrawal — the PTC instead invoked the rule of prospective application found in Vienna Convention on the Law of Treaties (VCLT) as well as a prior decision in the Situation in Burundi. Notably, however, either source is of dubious application in the Situation in the Philippines. First of all, Article 21 of the Rome Statute itself mandates the Court to “apply in the first place” the provisions of the Rome Statute. It is only in the absence thereof, i.e. “in the second place” and “where appropriate,” should the court resort to “applicable treaties and the principles and rules of international law[.]” Yet in the Authorization Decision, the PTC did not even bother with Article 127 of the Rome Statute. Instead, it looked directly to the VCLT — a second-step source of law from the perspective of Article 21.
Ironically, the direct resort to the VCLT is contrary to Article 70 of the VCLT itself! The provision states that it only applies if the parties were not “agreed otherwise.” But here, the Rome Statute is spoken for. Article 127 having provided the rules on the consequences of treaty termination “in the first place,” the State Parties have indeed “agreed otherwise.”
Further, the application of the PTC decision in the Situation in Burundi is not as straightforward as the PTC decision would have it appear. Burundi is the first country to withdraw from the Rome Statute, on Oct. 27, 2017. Yet unlike the Situation in the Philippines, the ICC authorized the investigation in the Situation in Burundi on Oct. 25, 2017, that is, two days before Burundi’s withdrawal took effect. Granted, we do not know what happens behind closed doors, yet it cannot be ignored how the timing of Burundi strongly suggests that even the Court was aware that Article 127(2) would require that an investigation must be authorized before withdrawal takes effect. Yet, when it comes to the Philippines, the PTC simply cited Burundi without regard to that factual nuance of weighty legal implication.
When the PTC and AC decisions are taken together, the numbers tell a tale of judicial uncertainty. Three judges of the PTC skirted the language of Article 127, three judges of the AC avoided addressing the issue of withdrawal altogether, and two judges of the AC opined outright that the Situation in the Philippines is no longer within the ICC’s jurisdiction.
Of the 18-judge roster of the ICC, the eight clearly convey how Article 127 is a delicate concern. An issue so fragile that six judges would rather ignore the finer nuances of temporal jurisdiction so as to avoid the risk of authoring its breakage, while two judges are convinced that the temporal tie had already long been broken.
Addressing the Elephant in the Room
Through the course of the proceedings, the matter on temporal jurisdictional has taken many a shape and form. Ultimately it falls on Article 127(2) of the Statute. The threshold question thus remains: What does it mean for a matter to be “under consideration” by the Court?
As argued by the OTP, the term “Court” should not be taken literally to refer to the judicial organ of the ICC. Indeed, the Rome Statute expressly defines in Article 34 that the Court is composed of the presidency, the judicial divisions, the registry, and, indeed, the OTP itself.
The Philippine government however rebuts that a preliminary examination by the OTP is not sufficient as Article 127 makes no mention of it. True as that may be, neither does Article 127(2) ever mention “investigation” or “jurisdiction.” Rather, it simply requires that a matter is already “under consideration.” Most notably, even Article 15 of the Rome Statute contemplates a stage of prosecutorial consideration that precedes PTC authorization to open a preliminary investigation. Subparagraph 6 provides that the OTP is not precluded “from considering further information” to determine whether there is a reasonable basis to open an investigation. Thus, there is sufficient leeway to rule that the OTP’s preliminary examination launched in 2018 — prior to the Philippines withdrawal — may qualify as a “a matter under consideration by the Court.”
The error in the Philippine government’s way, however, is most revealed in its afterthought. In response to the OTP on May 16, 2023 — its final filing before the AC decision — the government points to Article 95, which “mirrors” the language of Article 127 in connection with admissibility challenges “under consideration by the Court.” Thus, given that similarity in language, it argues that Article 127(2) too must contemplate judicial consideration.
On its merits, this final argument is simply grasping on straws. Articles 95 and 127 contemplate different situations. Indeed, Article 127 is not limited to admissibility challenges but any matter under consideration. But the error lies not only in the argument alone but in the approach.
The problem is how the legal issue of withdrawal has been diluted into a semantic game, with parties, chambers, and academics simply citing instances where “Court” may have been used throughout the Statute one way or the other. They forget that this is not simply a matter of linguistics but law. A system that provides not only for clear precepts but presumptions in their absence.
In line with Article 21, therefore, we must ask: What rule of interpretation is adopted by the Statute? The answer is found in Article 21(3), which states that the “application and interpretation of law pursuant to [Article 21] must be consistent with internationally recognized human rights[.]”
Amidst the conflicting interpretations of a “matter under consideration by the Court,” Article 21(3) gives the ICC the elbowroom it needs to rule that it retains jurisdiction over the Situation in the Philippines. While the OTP seeks accountability, the government’s interpretation of the withdrawal clause results in impunity. Through the lens of Article 21(3), which interpretation the ICC should adopt is clear. Unfortunately, however, Article 21(3) has never been raised in the withdrawal proceedings or in academic commentaries thereon. It should be.
Of course, the issue on temporal jurisdiction could have all been avoided if only an authorization request been simply filed by the OTP before the Philippine withdrawal took effect. If only the OTP and international community writ large had acted with the same urgency and resolve rightfully displayed in other situations. But not all is lost. The case now hangs by a thread of statutory construction.
So again, the question is posed: Should a preliminary examination constitute a “matter under consideration” for the purposes of Article 127(2)? From a textualist perspective: Perhaps. From a teleological view: Likely. But from the perspective of human rights: Definitely.
On a practical note, from its past conduct, even the Philippine government would agree that a preliminary examination is not as fictitious as it would now like to pretend. After all, though the OTP began observing the situation in the Philippines as early as Oct. 13, 2016, the Philippines only withdrew from the Rome Statute on Mar. 17, 2018, after the preliminary examination was launched. For the Philippine government, therefore, the preliminary examination was as real a consideration as it gets! So meaningful and menacing that even Duterte — the strongman, the “Punisher” — was prompted to unilaterally withdraw from the Rome Statute. Yet now, the government beats its chest and claims that the preliminary examination was never anything more than a name given to a mental process. If this were true, then why withdraw? Either it matters, or it does not. It cannot matter for one purpose, but not for the other.
The ICC recognizes that Article 127 is a delicate issue, and has looked beyond the pages of the Rome Statute to Burundi and the VCLT to find footing. Ironically, however, the answer has lied within the Statute all along.
The elephant in the room can only be ignored for so long before it tramples everything in its path. But as this discussion shows, it can also be overcome. If only we are willing to face it.
The views expressed are the author’s own and do not necessarily represent those of any organization.