ICC probe: Buckle up, we’re in for a long ride

The proceedings before the International Criminal Court (ICC) continue to be viewed from the lens of domestic practice.

Last week, the Pre-Trial Chamber (PTC) authorized the Office of the Prosecutor (OTP) to resume its investigation in the situation in the Philippines. To not much surprise, the Philippine government’s response was to deny that the ICC had jurisdiction in the first place. Immediately, Solicitor General Menardo Guevarra expressed their intention to challenge the PTC decision before the ICC Appeals Chamber.

Now, on its face, it may appear as if the Philippine government is having its cake and eating it too. On one hand, it claims that the ICC has no authority over the situation in the Philippines. Yet, on the other, it invokes that very same court’s appellate authority over that very same situation. The question must thus be asked—as, indeed, I have been recently asked: By filing an appeal, will the Philippines be impliedly recognizing, and thus accepting, the ICC’s jurisdiction?

It’s a good question. One that builds upon our own domestic legal quirks on voluntary appearance (i.e., the rule that says that court acquires jurisdiction over persons by their “voluntary appearance” in court). But in its essence, the concern is less legal than it is practical. Sure, Rule 14, Section 23 of the Rules of Civil Procedure may provide for the rule on voluntary appearance, yet there’s also a reason why a rule for a civil procedure is so uncritically applied to criminal cases as well. It’s not so much the dictate of law, but the dictum of logic.

We, Filipinos, just love that touch-move mentality. That “ayan kasi,” “you get what you ask for” cinematic moment. The biblical climax that screams “you reap what you sow.” But fortunately or unfortunately (depending on where you stand), international criminal litigation does not quite work that way. Certainty not under the Rome Statute.

So, let’s go back to the question: By filing an appeal, would the Philippines have effectively surrendered jurisdiction to the ICC? The answer is no, for several reasons—none of which involve the filing of an appeal ad cautelam. (For my nonlegal readers, ad cautelam or “with caution” is used to preface how a submission is made to question the jurisdiction of the court and not to surrender thereto.)

First of all, the very notion of voluntary appearance adopted in the Philippine Rules of Court would not apply for these purposes. The ICC never claimed personal jurisdiction over the Philippines, as the court does not try nations, but individuals. Indeed, Article 25(1) of the Rome Statute clearly provides that “the Court shall have jurisdiction over natural persons.”

Second, should the Philippine government, indeed, file an appeal at this stage, it will be pursuant to Article 18(4) of the Rome Statute. Notably, however, Article 18 is titled “Preliminary rulings regarding admissibility,” and admissibility alone. This is in contrast to Article 19, which is entitled “Challenges to the jurisdiction of the Court or the admissibility of a case.” An appeal pursuant to Article 18, therefore, would not “voluntarily surrender” jurisdiction, as jurisdiction is not at issue.

And third, Article 18(7) goes on to expressly provide that “a State which has challenged a ruling of the Pre-Trial Chamber … may challenge the admissibility of a case under article 19”—that is, as earlier stated, a challenge against both admissibility as well as jurisdiction. Notably, Article 19 deliberately refers to a “case” which, as opposed to a “situation,” contemplates a later stage wherein there is a specific allegation against a specific individual. In contrast to an Article 18 appeal, an Article 19 challenge isn’t made against the OTP’s investigation, but against a case founded on the outcome of said investigation. Thus, even after filing an Article 18(4) appeal, the Philippine government as well as the individual accused would still be entitled to raise admissibility and jurisdiction issues.

Now, from the Duterte administration to the Marcos Jr. administration, the government has made clear that they will “exhaust all legal remedies” against the ICC. Alas, as outlined above, the coming appeal is far from being the last hurdle we face.

Best we buckle up. We are in for a long ride.

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