Explain Like I’m 5: The ICC appeal brief

Reddit—the forum-styled social media network—is a treasure trove of creative quirks by quirky creatives. Within it, you find communities of “subreddits” (indicated through the symbol “r/”) where people can share and talk about a specific topic. So think of Reddit as a big playground where everyone can show each other their toys and games, and a subreddit as a special corner of the playground where people who like the same things hang out.

One of the more popular subreddits is “r/explainlikeimfive”, or “ELI5” for short, which is a go-to for users to ask for explanations on complex topics in a simple and easy-to-understand way. Easy enough for, well, a five-year-old to understand!

This, of course, is not to be taken literally. Much in the same way that I do not expect any five-year-old to be reading about thinking justly (though, hey, it’s never too early to start!), the subreddit itself notes in its mission statement that it “is not literally meant for five-year-olds.” The goal is “to simplify complex concepts in a way that is accessible for laypeople.”

Now, to the intellectual snobs out there, don’t take that as an insult. If it makes you feel any better, just think of it as “philosophical.” ELI5 is a mission just as much as it is a mantra that joins in on the Occamian phrase: “What is best is what is simple.”

I join my fellow Redditors. This column provides a simplified explainer—an ELI5, if you will—on the Philippine Government’s Appeal Brief against the International Criminal Court’s (ICC) Pre-Trial Chamber (PTC) decision authorizing the Office of the Prosecutor (OTP) to resume its investigation in the Situation in the Philippines.

Perhaps the first thing one might notice is the sheer length of the document filed. The 51-page appeal brief, which was filed on March 13, 2023, should not be confused with the five-page notice of appeal filed last Feb. 3, 2023. Pursuant to Regulation 64 of the Regulations of the Court, the notice of appeal must simply state (i) the name and number of the situation; (ii) the title and date of the decision being appealed; (iii) the specific provision of the Rome Statute pursuant to which the appeal is filed; and (d) the relief sought.

But while Rule 154 of the ICC’s Rules of Procedure and Evidence simply requires a notice of appeal, Regulation 64 further provides that the finer details of the appeal would come in the form of “a document in support of the appeal” (i.e., the appeal brief). Practicing what it preaches, Regulation 64 goes on to specifically define the substance and even the format of an appeal brief, which should set out the grounds of appeal and “shall contain the legal and/or factual reasons in support of each ground of appeal” in separate paragraphs and with proper citations.

The second thing that jumps off the page is how, so clearly, the Office of the Solicitor General (OSG) has a new legal advisor—something no less confirmed in the closing pages of the brief, where a new signature of foreign counsel appears right next to the OSG’s.

The appeal brief, in both style and substance, reads unlike any other pleading filed by the Philippine government in the past. Before, the OSG had simply dismissed the investigation as neocolonial conquest or claimed that it has and is indeed investigating the crimes in the drug war. But now, it engages with international criminal law doctrine with confidence and flair.

The appeal brief relies on four claims: the first on the ICC’s lack of jurisdiction, the second on who bears the burden of proof, the third on the doctrinal difference between an Article 18 and 19 appeal, and the last on complementarity. Notably, the Philippine government’s main line of argumentation is captured only in this fourth submission, which best illustrates the sea change in the Philippine government’s litigations strategy.

For now, in the interest of space, I will focus on ground one: The ICC cannot exercise jurisdiction because it lost jurisdiction upon the Philippines’ withdrawal.

Here, the government claims that the OTP investigation was not only belatedly requested by the OTP on May 24, 2021, but belatedly authorized by the PTC on Sept. 15, 2021. Both dates falling well beyond March 17, 2019, the effectivity date of the Philippines’ withdrawal from the Rome Statute.

Most interestingly, the government distinguishes the Philippine situation from the Situation in the Republic of Burundi, which is the first country to withdraw from the Rome Statute, on Oct. 27, 2017. The ICC had authorized the investigation two days before Burundi’s withdrawal took effect, on Oct. 25, 2017. Capitalizing on this temporal nuance, citing reasons of state acceptance and cooperation, the Philippine government claims that much like Burundi, the investigation in the Philippines could have only been launched before withdrawal took effect.

Now, the jurisdictional matter may take many a shape and form, but ultimately falls on Article 127(2) of the Statute, which provides that state withdrawal shall not prejudice “in any way” a matter which was already “under consideration by the Court.” The crux of the submission, if not the appeal or the investigation writ large, rests here. The threshold question is: What does it mean for a matter to be under consideration by the Court?

The government claims that a preliminary examination—a purely internal process of the OTP which precedes an authorization request—does not count, as “the Court at large (i.e., including the judiciary) is not involved at this stage.” In the appealed decision, however, the PTC, had taken a different view. One with which I am inclined to agree. The “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, you guessed it, the OTP itself.

Of course, this could have all been avoided had an authorization request been simply filed before the Philippine withdrawal took effect. Alas, the only way forward now is through a narrow window of statutory construction. The case rests on the interpretation of “the Court” by the Court.

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