Consequences of the ICC judgment

In a judgment rendered last Tuesday, the Appeals Chamber (AC) of the International Criminal Court (ICC) rejected the appeal of the Philippine government which sought to stop the investigation on the Philippine drug war. The subject of investigation are possible crimes against humanity which may have been committed in Davao City from November 2011 to 2016 and in the entire Philippines from 2016 to March 2019.

It was a very close vote of 3-2, with three judges ruling in favor of allowing the investigation to continue, and two dissenting judges voting to stop it. While several issues were raised, the outcome rested on one crucial technical issue. As correctly predicted by former ICC judge Raul Pangalangan (“ICC appeal: It can go either way,” News, 7/18/23), the pivotal issue was whether the Philippine matter was “already under consideration of the Court” before the Philippine withdrawal from the ICC took effect on March 17, 2019.

Pangalangan pointed out the crucial dates. The ICC Office of the Prosecutor (OTP) began its preliminary examination on the Philippine situation in February 2018. The Philippines withdrew from the ICC in March 2018, but which withdrawal only took effect one year after, or in March 2019, pursuant to the ICC treaty. In June 2021, the OTP filed with the ICC Pre-Trial Chamber (PTC) a request for authority to open an investigation, which was granted by the PTC in September 2021.

The two dissenting judges stated that the OTP should have applied for an authority to investigate, and the PTC should have granted such request, both before the Philippine withdrawal took effect on March 17, 2019. Since both the request and grant of authority happened after the Philippine withdrawal took effect, the ICC no longer had jurisdiction over the Philippines.

However, the majority of three AC judges ruled otherwise based on several grounds. First, the issue of jurisdiction was not decided upon by the PTC, so it could not be appealed. Second, the impact of its ICC withdrawal was not properly raised by the Philippines before the PTC. Third, the effect of the withdrawal was also “not suitably raised on appeal” by the Philippines before the AC. Fourth, by requesting for deferral of the investigation and by making submissions both to the OTP and PTC, “the Philippines implicitly accepted the Court’s jurisdiction.”

The advantage granted by the AC decision to the prosecution and the victims is that there is more likelihood now that the prosecutor will soon apply for, and the ICC will issue, warrants of arrest. This has become very interesting because Ellen Tordesillas of Vera Files came out with a story (“VP Sara, 2 senators named in ICC probe documents”) last Monday, claiming that in addition to former president Rodrigo Duterte, Vice President Sara Duterte, Sen. Christopher “Bong” Go, and Sen. Ronald “Bato” Dela Rosa, are also named in documents submitted to the ICC.

On the other hand, the advantage given by the AC decision for any future accused is that such accused can raise again the issue of the lack of ICC jurisdiction by adopting the reasoning of the dissenting judges.

Both the majority and dissenting judges ruled on the issue of jurisdiction on very technical grounds. By the time an accused raises again this same issue, the composition of the ICC may have already changed. Six of the 18 ICC judges will retire by March 2024, including one majority judge (Judge Piotr Hofmański) and one dissenting judge (Judge Marc Perrin de Brichambaut) both of the AC, and one judge (Judge Péter Kovács) of the PTC, that decided the Philippine case.

If the dissenting judges prevailed, their ruling could have led to unwitting but undesirable consequences. It may be seen by ruthless leaders as an incentive to immediately cause their country’s withdrawal from the ICC even before they start committing or while they’re perpetrating brutalities. Cruel rulers may additionally be encouraged to exert maximum efforts to prevent any form of OTP probe in their country. It will adulterate the nature of the OTP as an integral part of the ICC, because the ruling excludes the workings of the OTP from the key phrase “under consideration” by the ICC.

The ruling of the majority of AC judges will also have major political consequences in the Philippines. If it’s true that there’s a serious rift going on between the Marcoses and the Dutertes, the ICC decision has just given the Marcoses the upper hand. Will the Marcoses use the threat of an ICC arrest and prosecution to tame and restrain the Duterte camp’s ambitions, or will they wield them to rid themselves of competition?

There’s a looming shortage of popcorn in the country.

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