Acknowledging the elephant in the ICC courtroom (1)

As far as the International Criminal Court (ICC) system is concerned, Article 127 of the Rome Statute is the lex specialis on treaty termination. Yet, despite that fact, the impact of the Philippines’ withdrawal from the Rome Statute continues to be cluttered and conflated with the lex generalis.

Indeed, in the Situation in the Philippines, the chambers itself has avoided addressing Article 127’s without prejudice clause. This was most clearly illustrated in the recent Appeals Chamber’s decision, which dismissed the Philippine government’s jurisdictional contest outright. Prior to that, the Pre-Trial Chamber (PTC) likewise evaded Article 127 in its authorization decision and instead relied on the Situation in Burundi and Article 70 of the Vienna Convention on the Law of Treaties (VCLT) to retain jurisdiction. Notably, Article 70 provides a much more stringent rule of nonretroactivity as compared to Article 127 of the Rome Statute. The nuances between one and the other, however, were not at all addressed by the PTC.

The elephant in the courtroom is the issue we are afraid to acknowledge, yet is also the one we most need to talk about. This the column seeks to do. Today’s #JustThinking is a first in series that will address the impact of the Philippines’ withdrawal from the lens of Article 127. Before exploring how the Statute’s without prejudice clause applies to the Situation in the Philippines, I will first discuss my skepticism with the Court’s current approach.

Contrasting the Situations in Burundi and the Philippines. The facts of Burundi and the Philippines are not on all fours. The former is a case of authorization prior to termination, while the latter involves authorization more than two years after the fact. The factual difference is too glaring to assume that what was good for one will be good for the other. Indeed, the fact that the PTC in Burundi authorized an investigation just two days prior to the efficacy of withdrawal suggests that even it is alive to the possibility that an investigation should be authorized before withdrawal takes effect. The application of Burundi to the Philippines is thus far from square.

Dubious application of VCLT. Article 21 of the Rome Statute is the eye of the needle. All laws applied in the context of the ICC system must go through its hierarchy.

Pursuant to Article 21(1), the ICC shall apply “in the first place” the Rome Statute. It is only if the primary source proves inadequate may the Court turn to other treaties and principles of international law, such as the VCLT. Yet, in the Situation in the Philippines, the VCLT was used to wholly supplant the lex specialis in the Rome Statute.

While both Article 70 of the VCLT and Article 127 of the Rome Statute provide for the rules of withdrawal, they are not coextensive. While the VCLT contemplates a strict rule of nonretroactivity, the Statute’s without prejudice clause is self-limiting and retains jurisdiction only over matters “already under consideration by the Court.” Yet, in the Situation in the Philippines, the PTC overlooks that nuance, skirts the clause of contention altogether, and, in lieu of it, invokes a different rule contemplated in a different provision that is codified in a different treaty.

By avoiding Article 127 and anchoring its ruling on the VCLT, the PTC ignores the hierarchy of law. It elevates the VCLT not only as a codification of the principles of interpretation, but as a direct source of obligation that not only interprets but supplants provisions of the Rome Statute.

Most interestingly, such an approach is contrary not only to Article 127 of the Statute but to Article 70 of the VCLT itself. The chapeau of Article 70 contains an auto-limitation clause. It states that the VCLT’s rule on nonretroactivity shall apply, “unless the treaty otherwise provides or the parties otherwise agree[.]” Thus, to borrow the VCLT’s own language, through Article 127 the state parties to the Rome Statute had indeed “agreed otherwise.”

Myrmecological jurisprudence. The problem with the Court’s approach thus far is how, when it comes down to it, the crux of the issue is neither Burundi nor the VCLT, or any other provision for that matter other than Article 127. Yet with so much pressure building upon this single provision, legal discourse has turned myrmecological. It has ignored elephants to discuss ants.

How then should the ICC proceed? It is my humble opinion that focus should be shifted to analyzing the impacts of the Philippine withdrawal through the lens of Article 127. At the center of that issue is whether a preliminary examination by the Office of the Prosecutor may constitute a matter “already under consideration by the Court.”

In next week’s #JustThinking, I will address in further detail how Article 127 should be interpreted in order for the ICC to retain jurisdiction over the Situation in the Philippines.

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