Why the ICC decision is a cause for concern

On July 18, the Appeals Chamber (AC) of the International Criminal Court (ICC) released its much-awaited judgment on the appeal of the Philippine government. While this gives justice advocates much reason to celebrate, it likewise raises much reason for concern.

The Philippines’ withdrawal from the Rome Statute became effective on March 17, 2019. It was only two and half years later that the Office of the Prosecutor (OTP) of the ICC sought authorization from the Pre-Trial Chamber (PTC) to open its investigation on the situation in the Philippines. That authority was granted by the PTC on Sept. 15, 2021, (“the authorization decision”) only to be suspended come November 2021 as requested by the Philippine government through a deferral request lodged pursuant to Article 18(2) of the Rome Statute.

Come June 24, 2022, the OTP filed its request before the PTC to resume its investigation. Despite staunch objections by the Philippine government (labeled as “observations” in the government’s written submissions), the PTC ultimately authorized the investigation on Jan. 26, 2023 (“resumption decision”).

As what was expected by all: On Feb. 3, 2023, pursuant to Article 18(4) of the Statute, the Philippine government filed its notice of appeal against the 2023 resumption decision. There, it challenged the ICC’s decision on issues of jurisdiction and admissibility. But as I had highlighted in my April 20, 2023 column entitled “Unraveling the OTP’s response to PH appeal,” Article 18 involves only “Preliminary rulings regarding admissibility” and not jurisdiction. The Philippine government was, thus, appealing the wrong case. If it wanted to question jurisdiction, it should have challenged the 2021 authorization decision rather than the 2023 resumption decision. At that point in time, however, it had no choice as the period to appeal the 2021 authorization decision had already lapsed.

On July 18, 2023—just one day after the 25th anniversary of the Rome Statute—in a 3-2 decision with two judges filing a dissenting opinion, the AC, denied the Philippine government’s appeal. Newsfeeds and newspapers alike flooded with rejoice. Tears shed as voices cried: “There is still hope!”

But alas, our hope must be tempered. As the decision of the AC highlights the crux of the controversy.

To exercise jurisdiction, the ICC must establish three of four jurisdictional contacts: temporal jurisdiction, material jurisdiction, and either territorial jurisdiction or personal jurisdiction. The Philippine war on drugs has resulted in the extrajudicial killings of an estimated 30,000 victims—6,252 of which, by the end of Rodrigo Duterte’s presidency, are admitted by the government through its #RealNumbersPH campaign. Thus, material, territorial, and, alternatively, personal jurisdiction are relatively straightforward matters before the ICC. The bone of contention lies on temporal jurisdiction. And on this, the silence of the AC in its recent decision speaks volumes.

In its appeal brief, the Philippine government claimed, among others, that the ICC has already lost jurisdiction over the Philippines in light of our withdrawal from the Rome Statute. In paragraph 57 of the AC’s decision, the majority ruled: “since the [resumption] decision does not constitute a decision with respect to jurisdiction … the Appeals Chamber cannot entertain the Philippines’ appeal on this point.” In gist, the AC echoes my column’s point. The Article 18(4) appeal was not the proper recourse to question jurisdiction. Thus, the AC was able to avoid addressing the merits of the government’s temporal contest. We won by the skin of our teeth.

Yet while the majority washed its hands from addressing the withdrawal issue, the dissenting opinion of Judge Marc Perrin de Brichambaut and Judge Gocha Lordkipanidze zeroed in on it. They dissented: “We consider that the [PTC] erred in law in concluding that the Court had jurisdiction … despite the Philippines’ withdrawal … The Court cannot exercise jurisdiction in the Philippines Situation.”

The Philippine government and its advisers must be quite pleased with the outcome of this case. They may have lost the battle, but the war rages on. Indeed, the appeal was but a heat-check. It was their way to gauge the leanings of the court and the arguments of the OTP. To that extent, they succeeded. The AC decision has communicated to the Philippine government as well as to the OTP that the outcome of this case will turn on temporal jurisdiction. A matter so controversial that, of the 18-judge roster of the ICC, three avoided addressing the issue of withdrawal and two opined outright that the situation in the Philippines is no longer within their jurisdiction.

This is not the last time that a challenge to temporal jurisdiction will be heard. Pursuant to Article 19(3) and (4), three people may still raise the jurisdictional issue: (i) an accused, (ii) a person for whom a warrant of arrest or a summons to appear has been issued, (iii) or the OTP himself. When that happens—and indeed, it is a when and not an if—the ICC will need to determine whether the OTP’s preliminary examination will constitute a “matter which was already under consideration by the Court.” (Article 127)

But not all hope is lost. As I presented in my March 16, 2023 column “Explain Like I’m 5: The ICC appeal brief,” the Rome Statute provides the ICC with sufficient leeway to rule that the term “Court” in Article 127 covers all of the ICC’s organs, including the OTP acting through a preliminary examination.

Justice is walking on a tightrope. So much hinges on this matter of statutory construction.

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