Unraveling the OTP’s response to PH appeal

Another day, another dossier in Den Haag.

In the month of April alone, there have been several: first, the Office of the Prosecutor (OTP) responded to the Philippine government’s appeal brief on April 4, 2023. The ensuing legal dance saw the Philippines filing “for leave” to reply, and the OTP opposing, claiming the issues raised were “not new.”(For those less familiar with legal jargon, “with leave” means a party must seek the court’s permission before taking certain actions, with the court having the discretion to grant or deny the request. So in this case, if permitted by the Appeals Chamber (AC), only then would the Philippine government be able to file a Reply to the OTP’s April 4, 2023 Response “with leave of court.”)

Amidst this flurry of filings, it’s time for another ELY5! Here, I briefly explain (like you’re five years old) the OTP’s response to the Philippine government’s appeal brief. Similar to my first ELY5, on the appeal brief itself, by reason of limited space this column will focus on the jurisdictional argument alone.

The OTP’s April 4, 2023 filing is a mix of low-lying and high-hanging fruits. At the outset, the OTP argues that the AC does not need to rule on questions of jurisdiction since the Jan. 26, 2023 decision now appealed was a matter of complementarity. I am inclined to agree.

The Philippine government confuses the Jan. 26, 2023 decision (authorizing the OTP’s investigation resumption) with the Sept. 15, 2021 decision (authorizing the investigation itself). The International Criminal Court (ICC) decided its jurisdiction (and admissibility) in the 2021 decision, while the 2023 decision concerned admissibility.

The distinction between these two principles is lost on many. Jurisdiction refers to the ICC’s legal authority to hear a case, while admissibility determines if it’s appropriate for the ICC to exercise that jurisdiction. The principle of complementarity states that a case is inadmissible if it is being or has been investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable to genuinely carry out the investigation or prosecution.

Keeping these distinct principles in mind, we see that the jurisdictional matter was decided in 2021, not 2023. In the 2023 decision, the Pre-Trial Chamber (PTC) simply found that the Philippines was not making a genuine effort to conduct investigations and prosecutions. Thus, in the 2023 decision, the PTC ruled on admissibility, not jurisdiction.

The Philippine government is appealing the wrong case. If it wanted to challenge the court’s jurisdiction, then it should have appealed the 2021 decision. It now finds itself in quite a pickle, and it has the Duterte administration’s cold shoulder approach to blame. By ignoring the 2021 decision back then, the government has lost the opportunity to file a timely appeal now. The Marcos administration inherits the botched decisions of its predecessor.

Thus far, we’ve identified the low-lying fruit. On a procedural level, it’s an easy argument likely to be decided in favor of the OTP. The high-hanging fruit, however, lies in the merits of the jurisdictional question given that the Philippines has already withdrawn from the Rome Statute.

The OTP presents two theories: First, that the ICC’s jurisdiction over alleged crimes committed by state parties isn’t subject to time limits. Under this theory, it doesn’t matter that the investigation was authorized after the withdrawal took effect or that the Philippines withdrew at all! The key point is that the crimes were committed while the Philippines was a state party and thus subject to the ICC’s jurisdiction.

The second theory is much more straightforward. The OTP argues that its preliminary examination satisfies Article 127(2), and argues that a state’s withdrawal shouldn’t affect the ongoing consideration of any matter by the court before the withdrawal became effective.

The first theory is incredibly ambitious, and the appeals chamber might very well accept it or reject it for that reason. But what is for certain is how this interpretation, though expansive, would likewise expand the court’s jurisdiction. In that sense, the OTP’s first theory would cater to the self-interest of a court, masked with just enough legal basis and Tadic-like competence to be legitimate.

However, the OTP faces a real dilemma. From the little that we’ve seen from the ICC on the finer nuances of Article 127 and treaty withdrawal, it does not appear that the ICC would agree with this view. The OTP relies heavily on the Situation in Burundi, which authorized an investigation just two days before Burundi’s withdrawal took effect. Granted, we do not know what happens behind the curtain, but the timing of the decision alone suggests that even the court was aware that Article 127(2) would require that an investigation must be authorized before the withdrawal takes effect.

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