Time for the ICC Office of the Prosecutor to Invoke Article 19(3) of the Rome Statute (1998): The International Criminal Court’s jurisdiction in the Situation in the Philippines

[Manuel J. Ventura is the Deputy Director of the Australian Defence Force Indo-Pacific Centre for Military Law, Defence Legal Division, Department of Defence of Australia and an Adjunct Fellow/Lecturer of international law at Western Sydney University.]

The views expressed herein are those of the author alone and do not necessarily reflect the views of the Department of Defence of Australia, the Minister for Defence of Australia, or the Australian Government.

On 18 July 2023, the ICC Appeals Chamber issued its Judgment on the Appeal of the Republic of the Philippines Against Pre-Trial Chamber I’s “Authorisation Pursuant to Article 18(2) of the Statute to Resume the Investigation” where, by a 3-2 majority, it rejected the Philippines’ attempt to stop the ICC Office of the Prosecutor (OTP) from resuming its investigation pursuant to Article 18(2) of the Rome Statute (1998). One of the key takeaways from the decision, as Mariam Bezhanishvili and Raphael A. Pangalangan have rightly pointed out, is that the OTP’s investigation of the Situation in the Philippines seems to hang by a thread. That is because the two dissenting judges – Judge Perrin de Brichambaut and Judge Lordkipanidze – opined that the ICC did not have jurisdiction over the Situation in the Philippines since the OTP had submitted its proprio motu investigation authorisation request on 24 May 2021, more than 2 years and 2 months from when the Philippines’ withdrawal from the Rome Statute (1998) had become effective on 17 March 2019. In contrast, the majority of the Appeals Chamber refused to engage with the issue because, in their view, the Philippines should have raised this issue before the Pre-Trial Chamber first and, further, it had not been suitably raised before the Appeals Chamber either.

The focus of this post is not to engage with the merits of the question of whether the ICC has jurisdiction over the Situation in the Philippines. Rather, it focuses on Article 19(3) of the Rome Statute (1998), which reads as follows:

The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court.

A circumstance where it is unclear what effect the Philippines’ withdrawal from the Rome Statute (1998) has vis-à-vis the exercise of the ICC’s jurisdiction after that withdrawal has become effective is precisely the sort of situation that Article 19(3) was designed to address. Indeed, why expend time and money investigating a situation/cases only to find out years later that the ICC had no jurisdiction in the first place?

And so, it is submitted that the time has come for the OTP to invoke Article 19(3) and seek a ruling on the issue of the ICC’s jurisdiction over the Situation in the Philippines. Invoking Article 19(3) would not be unprecedented. In fact, the OTP has invoked this provision twice to clarify the ICC’s jurisdiction: first with respect to the international crimes allegedly committed against the Rohingya in Myanmar that spilled over into Bangladesh (see the decision here, with Judge Perrin de Brichambaut’s partially dissenting opinion here) and second with respect to the Situation in Palestine (see the decision here, with Judge Kovács’ partially dissenting opinion here and Judge Perrin de Brichambaut’s partly separate opinion here).

These decisions exposed debate among the judges as to when Article 19(3) can be validly invoked by the OTP (i.e. in the absence of a situation (as had been the case with Myanmar/Bangladesh) or when a situation existed but in the absence of any cases (as had been the case with the Situation in Palestine)). As previously opined in former ICC Judge Nsereko and the present author’s commentary to Article 19 in the Rome Statute of the International Criminal Court: Article-by-Article Commentary, 4th Edition (aka “the Triffterer”) (at pp. 1063-1064), the reasoning of both decisions leave a lot to be desired. Pre-Trial Chamber I in the Myanmar/Bangladesh decision refused to engage substantively with Article 19(3) at all even though it had been expressly invoked by the OTP in its Article 19(3) application and instead, relied on Article 119(1) and its compétence de la compétence (see paras 28-33). The same Pre-Trial Chamber I in the Situation in Palestine decision hinged its holding on the finding that the OTP had already initiated an investigation “as a matter of law” by the time of its Article 19(3) application even though the OTP had not “officially” announced it (see paras 64-67). No doubt it was more than awkward for the OTP to then announce the start of its investigation the month after the Situation in Palestine decision had been handed down when, according to Pre Trial Chamber I, it had already supposedly started.

As opined in the aforementioned commentary to Article 19 of the Triffterer (at pp. 1062), the OTP should be able to file an Article 19(3) request at any stage, including before the existence of a situation before the ICC (as in Myanmar/Bangladesh). Be that as it may, the OTP commenced its investigation of the Situation in the Philippines when Pre-Trial Chamber I authorised it on 15 September 2021. And so, if an Article 19(3) application requires an investigation to have started (as the Situation in Palestine decision suggests but with which the present author respectfully disagrees), then the Situation in the Philippines meets such a requirement. It is not procedurally barred based on current ICC jurisprudence.

Were the OTP to submit an Article 19(3) request, there is little doubt that the Philippines would seek to intervene to be heard. As the Philippines did not refer the situation to the ICC, it does not fall within the second sentence of Article 19(3) (whereby States that referred the situation and victims may submit observations), but the Pre-Trial Chamber can (and should) exercise its discretion pursuant to ICC Rule 58(2) so that the Philippines can be heard. Whatever the outcome, an appeal is all but guaranteed pursuant to Article 19(6) and Article 82(1)(a). If the Pre-Trial Chamber at first instance determines that the ICC does not have jurisdiction, then the door is open for the OTP to seize the Appeals Chamber of the issue. If the Pre-Trial Chamber rules the other way, then the Philippines would appeal. Because Article 19(3) only envisages the OTP making an Article 19(3) application, the Philippines would not be a “party” to the Article 19(3) proceedings (though as aforementioned it can be granted permission to be heard via the exercise of the court’s discretion). While Article 82(1)(a) states that “either party” may appeal a decision with respect to jurisdiction (or admissibility), it would make little sense to deny the Philippines the right to appeal merely because it is not technically a “party” to the Article 19(3) proceedings when the entire purpose of Article 19(3) is to ensure that pre-requisite issues have been properly vetted – in this case, before time and money is expended on potentially pointless ICC investigations.

However, unlike when the OTP submitted its Article 19(3) applications in Myanmar/Bangladesh and the Situation in Palestine, two sitting judges of the ICC Appeals Chamber – Judge Perrin de Brichambaut and Judge Lordkipanidze – have already expressed their legal opinion on the very question that is to be included in such an Article 19(3) application: the effect of the Philippines’ withdrawal from the Rome Statute (1998) vis-à-vis the exercise of the ICC’s jurisdiction once that withdrawal has become effective. This was espoused over 23 paragraphs with accompanying references/footnotes (see paras 15-37). Their legal position on this question is clear and unequivocal: the ICC has no jurisdiction. But Judge Perrin de Brichambaut’s term is scheduled to end on 11 March 2024, while Judge Lordkipanidze’s term ends on 10 March 2030. Realistically, if the OTP were to submit an Article 19(3) application today, it is unlikely that the Appeals Chamber would be seized of any appeal until after 11 March 2024. Accordingly, only Judge Lordkipanidze is likely to still be on the Appeals Chamber bench to potentially hear the appeal.

In view of his previous joint legal pronouncement with Judge Perrin de Brichambaut, it might be tempting to ponder if Judge Lordkipanidze would truly come with an open mind if faced with precisely the same legal question in precisely the same situation. Might there be grounds to seek Judge Lordkipanidze to step aside? That possibility is remote, at best. Generally, prior views expressed by a judge on a legal question/issue are not sufficient, in of themselves, to warrant their removal from the bench (as, for example, the Special Tribunal for Lebanon held). Indeed, judges enjoy a presumption of impartiality that can only be overturned based on compelling evidence. But things could be different where, for example, a judge has previously decided on a legal issue and thereby created a new legal standard, has a personal interest in cementing the new law that arose from that previous decision, has a persistent history of ignoring legal precedents and where personal animosity is at play, as the International Residual Mechanism for Criminal Tribunals OTP submitted in the (in)famous “Antonetti disqualification saga” (arguments that were not ultimately decided as they were held to be moot). Further, there is some (limited) precedent for the removal of arbitrators based on the legal opinion they had expressed on a precise legal issue across multiple arbitral awards that was then reaffirmed their own academic writing. Clearly, those situations are different than the one present here. Having said all that, nothing prevents Judge Lordkipanidze from removing himself from such an appeal proprio motu in the interests of justice.

Irrespective, the need for clarity on the issue of the ICC’s jurisdiction in the Situation in the Philippines remains. The issue will reach the Appeals Chamber eventually one way or the other, and given all that is riding on it, it is in the ICC’s best interests for this to happen sooner rather than later. An Article 19(3) application can ensure that this issue does not metastasise into unfavourable outcomes later down the line. The OTP is urged to prepare and file such an application without delay.