ICC: The temporal vs the strategic

Last July 18, the Appeals Chamber (AC) of the International Criminal Court (ICC), voting 3-2, authorized ICC chief prosecutor Karim Khan to resume his investigation of an alleged “crime against humanity of murder, committed in the Philippines between Nov. 1, 2011, and March 16, 2019, in the context of the so-called ‘war on drugs’ campaign.” Yet, the prosecutor, a celebrated Queen’s Counsel in the United Kingdom, has not publicly shown that he was actually continuing his investigation. Neither has he asked for warrants of arrest for the suspects. Has he changed his mind due to the rather convincing opinion of the two dissenters?

TO ANSWER THE QUESTION, LET US FIRST RECALL SOME RELEVANT FACTS AND DATES. Please note the dates carefully. On Feb. 8, 2018, then ICC chief prosecutor Fatou Bensouda announced her preliminary “examination” of the “Philippine situation” to determine whether a crime punishable under the Rome Statute that created the ICC had been committed. Recoiling from her announcement, the Philippines, under then President Rodrigo Duterte, withdrew its membership from the ICC on March 17, 2018. Under the Rome Statute, the withdrawal took effect a year later on March 17, 2019. Two years thereafter, on May 24, 2021, Bensouda filed a request in the Pre-Trial Chamber (PTC) of the ICC for authority to commence formally a preliminary investigation of the Philippine situation.

On Sept. 15, 2021, the PTC granted her request and authorized the Office of the Prosecutor, now headed, by Khan to commence the requested investigation. However, the eminent prosecutor agreed to suspend the investigation at the request of the Philippine government to enable it to conduct its own inquiry. Later on, not satisfied with the government’s allegedly superficial investigation, Khan asked the PTC to allow him to continue his work which the PTC granted on Jan. 26, 2023. From this grant, the government appealed to the AC.

TWO MAIN ISSUES WERE TACKLED IN THE PHILIPPINE APPEAL: First, complementarity, and second, jurisdiction. On complementarity, the ICC, under Article 17 of the Statute, will decline a case if it is already “being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” (Bold types supplied). The AC agreed with Khan that the government had not shown genuine willingness and ability to investigate the situation and to prosecute the perpetrators, especially the brains, of the alleged crime.

The majority of three skirted the second issue, saying that the AC did not have any authority to tackle it because it was not taken up in the judgment (of Jan. 26, 2023) that was appealed. It held that the alleged lack of jurisdiction should have been raised in an appeal of the Sept. 15, 2021 decision, not of the one on Jan. 26, 2023. Unfortunately, the Philippines failed to appeal the said decision. Thus, the AC said that it was legally inappropriate to take up the issue of jurisdiction in the current appeal of the Jan. 26, 2023 decision. In any event, ruled the AC, by filing an appeal of the Jan. 26, 2023 decision, and not the one of Sept. 15, 2021, the Philippines has waived its right to challenge the ICC’s jurisdiction.

The minority of two asserted that the majority erred in refusing to take up the issue of jurisdiction. After all, should the PTC issue warrants against the alleged perpetrators, the said perpetrators can raise the issue and the ICC shall be forced to take it up. Thus, allowing the prosecutor to proceed with his preliminary investigation without ruling on the crucial issue of jurisdiction will just result in wasted time and resources.

The minority insisted that the ICC did not acquire jurisdiction because Bensouda petitioned the PTC for authority to conduct a preliminary investigation only on May 24, 2021, and the PTC granted her petition only on Sept. 15, 2021, both dates being more than two years after the Philippine withdrawal from the ICC took effect on March 17, 2019.

TEMPORARY, I BELIEVE, WAS THE VICTORY SECURED BY THE CHIEF PROSECUTOR. Yes, temporarily only, because the ICC may just dismiss the complaints or the petitions for warrants of arrest that Khan may file against the suspects for lack of jurisdiction. Because of this, Khan may no longer be minded to pursue the case, knowing that his effort may be wasted and could be better used to win new “situations” like Russia’s unprovoked war on Ukraine.

On the other hand, though it suffered a temporary defeat, the Philippine government may have won strategic knowledge—at least two ICC judges are minded to dismiss the suit while none, not even any of the three majority judges, has taken an opposing stance on the vital issue of jurisdiction.

In sum, the jurisdiction issue hinges on statutory construction: Is the “preliminary examination” of Bensouda in 2018 an integral part of the “preliminary investigation” authorized by the ICC? Otherwise stated, is the Office of the Prosecutor an integral part of the ICC? My short answer is “No.”

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