ICC Appeal Judgment on the Philippines – Keeping the Court’s Post-Withdrawal Jurisdiction on Life Support?

[Mariam Bezhanishvili (LinkedIn; Twitter; ResearchGate) is a PhD candidate at the European University Viadrina, researching on the protection of property during armed conflicts and occupations. She was formerly a visiting professional at the International Criminal Court and a legal intern at the International Bar Association ICC&ICL Programme.]

On 18 July 2023, the Appeals Chamber of the International Criminal Court (ICC) issued a judgment in relation to the Situation in the Republic of the Philippines, upholding the decision of the Pre-Trial Chamber (PTC) authorising the Office of the Prosecutor (OTP) to resume the investigation under article 18(2) of the Rome Statute. The Government challenged the exercise of the Court’s jurisdiction on the basis that the Philippines was a State Party at the time of the alleged crimes, despite its subsequent withdrawal from the Statute. The judgment, and notably its dissenting opinion, contain significant pronouncements in relation to the exercise of the Court’s jurisdiction after a state withdraws and will likely have a decisive influence for the resolution of this vital issue in the future.

The investigation concerns the crimes allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the ‘war on drugs’ campaign orchestrated by then President Rodrigo Duterte. The investigation commenced on 15 September 2021, but was later suspended following to the state’s article 18(2) request to defer investigation to national authorities. On 24 June 2022, the OTP requested the resumption of the investigation, which was granted by the PTC on 26 January 2023.

In its appeal brief, the Philippine Government presented four grounds of appeal on the issues of jurisdiction and admissibility against the PTC decision. The case therefore illustrates problematic aspects of addressing the issues of jurisdiction and admissibility in the context of the article 18 proceedings – when the situation passed the article 15 (authorisation of investigation) but has not reached the article 19 (when there is a case) stages.

The ground one of the appeal, however, is the most significant due to its potential wide-scale consequences on defining the scope of the Court’s jurisdiction in the context of state withdrawals. The Philippines has argued that, because the investigation was authorised by PTC on 15 September 2021, more than two years after the country’s withdrawal became effective on 17 March 2019, the Court could no longer exercise its jurisdiction in this situation. The Court has previously dealt with similar situation in Burundi. However, in the latter case the investigation was authorised before the effective withdrawal date.

The Majority Decision

The majority dismissed the ground one of the Philippines’ appeal as inadmissible. While Philippines has previously challenged the Court’s jurisdiction under various grounds, ‘the issue of the impact of the Philippines’ withdrawal from the Statute on the Court’s jurisdiction was neither properly raised nor adequately ventilated before the Pre-Trial Chamber’ (para. 55). Therefore, since the PTC’s findings (para. 26) concerning the effects of the Philippines’ withdrawal on the Court’s jurisdiction were meant merely to clarify the procedure under article 18(2) and to recall the findings on jurisdiction made in article 15(4) decision, the impugned decision did not constitute a ‘decision with respect to jurisdiction’ within the meaning of article 82(1)(a) of the Statute (para. 54). Consequently, referring to the corrective function of the proceedings on appeal, which are conducted with the purpose to review the proceedings before the first instance Chamber, the majority decided to dismiss the ground one of the appeal as inadmissible.

The Dissenting Opinion    

The Judges Marc Perrin de Brichambaut and Gocha Lordkipanidze apprehended a dissenting opinion, finding the ground one of the Philippines’ appeal both admissible and substantiated. In their view, the Appeals Chamber was properly seized of the matter, considering that (i) the PTC entered a finding specifically on the effects of the Philippines’ withdrawal on the Court’s jurisdiction, which was an integral part and formed the basis of the decision (paras 8-9); (ii) the principle of la compétence de la competence gives the Court the power to determine the extent of its own jurisdiction (para. 10); (iii) the fundamental issue of the Court’s jurisdiction should be resolved at the earliest opportunity to avoid wasting the court’s resources (paras 11-12).

Importantly, the dissenting judges also clarified that a ruling on jurisdiction can be rendered at the article 18, situation stage. The judges highlighted that the Philippines was neither a party nor a participant in the article 15 proceedings, which does not foresee the participation of the concerned State. Therefore, it was ‘only in the context of article 18(2) proceedings that the Philippines had the opportunity to raise the issue of the Court’s jurisdiction’ (para. 14). Against this background, the Majority’s assertion that ‘by requesting deferral and by making submissions in the context of article 18 proceedings, the Philippines implicitly accepted the Court’s jurisdiction’ (para. 56) seems somewhat questionable.

Furthermore, the dissenting judges are of the opinion to grant the Government’s appeal that the Court can no longer exercise jurisdiction in the Philippines Situation. For the first time in the Court’s jurisprudence, the dissenting judges expressly articulated that ‘there is a distinction between the existence of jurisdiction and the Court’s ability to exercise the jurisdiction, and that the preconditions to the exercise of the Court’s jurisdiction set out in article 12 of the Statute must exist at the time that the exercise of the jurisdiction is triggered pursuant to article 13 of the Statute’ (para. 23). This was, first and foremost, because of the use of ‘are’ in article 12(2), indicating that the appropriate time to determine the article 12 preconditions is when the exercise of the Court’s jurisdiction is triggered, not when the crimes were allegedly committed. Per dissenting judges, such triggering ‘definitely occurs when the pre-trial chamber authorizes the commencement of the investigation’ under article 15(4) of the Statute. Conversely, ‘once the State’s withdrawal has become effective, the Prosecutor can no longer open an investigation’ (para. 27).

The dissenting opinion sets another ‘precedent’ by elaborating a legal test, whereby two concomitant interests exist in the context of state withdrawal: on the one hand, article 127 of the Statute provides to states a fundamental right to withdraw; on the other hand, there is a risk of the states using withdrawals for shielding certain persons from prosecution, which contradicts the vital interest of fighting impunity (para. 28). In the view of the dissenting judges, the Statute strikes fair balance between these interests, by providing in article 127 a buffer period of one year for the state withdrawal to take effect. In their opinion, one year is sufficient for the Prosecutor to request the authorisation of the investigation, and for the PTC to rule upon such a request (para. 29). ‘Without such limitations, the Court’s jurisdiction would stretch to an extent that would defy the assurances and guarantees to the States embedded in the Statute’ and would render article 127 meaningless by allowing to trigger the Court’s jurisdiction indefinitely (para. 36). Consequently, the appeal should have been granted ‘since the Prosecutor had not proceeded to trigger the Court’s jurisdiction before the withdrawal became effective’ (para. 29).

The dissenting opinion also touches upon the interpretation of article 127(2) of the Statute, which provides that a state’s withdrawal shall not prejudice the continued consideration of any matter which was already under consideration by the Court prior to the effective withdrawal. According to the dissenting judges, preliminary examination is not a ‘matter under consideration by the Court’ largely due to its informal nature, which ‘do not carry sufficient weight for engaging the Court’s jurisdiction’ in the absence of a formal authorisation of the investigation (para. 35). In their view, the Court was able to retain jurisdiction over the Burundi Situation precisely because the PTC authorised the investigation before the withdrawal of Burundi became effective on 27 October 2017.

The Beginning of an End for the Court’s Post-Withdrawal Jurisdiction?

The present case brought to the light the issue of exercising the Court’s jurisdiction after a state withdrawal in its most problematic form and scale. Even though it could not have been resolved for procedural reasons, the judgment, and particularly the dissenting opinion, gave us an indication of how this existential question for the Court’s jurisdiction can potentially be addressed when it (likely) returns to the PTC and/or the Appeals Chamber. Since the ground one of the appeal was dismissed on admissibility concerns, it is to be expected that the Philippines will continue to challenge the jurisdiction as the proceedings advance, if not immediately then most likely at the stage of Article 19 proceedings. Until then, the Court’s jurisdiction in Philippines seems to have been left on life support.

One thing is certain – the resolution of this matter will have far-reaching and long-lasting effects not just for the investigation in the Philippines, but also for fundamentally (re)shaping the Court’s jurisdictional regime in the context of state withdrawals. According to the standard elaborated in the dissenting opinion, settling this issue requires meticulous balancing of two interests. Having the advance notice of possible investigations due to the OTP’s preliminary activities, a state might be encouraged to opt for the easy way out and to withdraw from the Statute to help certain individuals escape criminal responsibility (in case the commencement of investigation is necessary for the Court’s jurisdiction to trigger). Yet, the approach whereby the Court retains jurisdiction perpetually over the crimes committed prior to the state’s withdrawal also does not sit right with the foundational principle that the exercise of the Court’s jurisdiction hinges on the state consent. Ultimately, it cannot be within the interest of victims either, to bring about the increase in what has been unfortunate but isolated instances of state withdrawals, by overcomplicating the exit procedure and artificially inflating the scope of the Court’s jurisdiction. In any event, as accurately reflected in the dissenting opinion and clearly demonstrated by the circumstances of the current case, exercise of due diligence in the conduct of preliminary examinations by the OTP can have a major balancing role in settling this conflict.