Acknowledging the elephant in the ICC courtroom (2)

Ignoring the elephant in the room doesn’t make it go away. It just makes it harder to deal with.

Having already discussed my skepticism toward the International Criminal Court (ICC) reliance on the Situation in Burundi and Article 70 of the Vienna Convention on the Law of Treaties (VCLT) in last week’s column, today’s #JustThinking zeroes in on Article 127(2) of the Rome Statute.

The provision says that a state’s withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court[.]” The central question can thus be framed: Does a preliminary examination of the Office of the Prosecutor (OTP) count as a “matter already under consideration by the Court”?

This is a matter of statutory construction. And in the Situation in the Philippines, there have been two schools of thought at play: textualism and teleology. In Philippine legal parlance, we adopt these same rules but under different names: verba legis and ratio legis. The former gives weight to the word, while the latter prioritizes the law’s purpose.

Both approaches, though not without their respective merits, are wanting.

The OTP claims it is an organ of “the Court” and its preliminary examination falls within Article 127(2). The textual basis for the claim lies in Article 34, which provides that “the Court shall be composed of [several] organs,” including the OTP. The problem with this argument, however, is that the term “Court” is likewise used in the Rome Statute on various occasions to refer to the judicial branch alone (e.g., Articles 19(3) and 21(2)).

The government capitalizes on that textual pattern and claims that a preliminary examination—a matter solely conducted by and at the discretion of the OTP—is not at all referenced or contemplated in the Statute, let alone Article 127(2). But much like the OTP, the government encounters its share of hurdles. First of all, the preliminary examination is not just some name given to the OTP’s mental processes. On the contrary, it is expressly referenced in Article 15(6). Second, while it is true that a preliminary examination is not referenced in Article 127(2), neither does the provision refer to any particular stage. It neither refers to nor requires an “exercise of jurisdiction,” a request for approval, or an “opening of an investigation.” The jurisdictional nexus is drawn on “any” matter under consideration by the Court.

The OTP claims that the Rome Statute’s purpose would be thwarted should states be allowed to withdraw to evade an investigation. But the pendulum swings both ways. Such an expansive reading of Article 127(2) would questionably expand the OTP’s power over sovereign nations that are no longer parties to the Statute. An outcome the Statute may not have originally contemplated.

Both parties have legal ground to support their claim. What is the ICC to do?

The problem with the current level of discourse is how it has come to treat a legal issue as a semantic game, citing instances in other provisions where the term “Court” may have been used one way or the other. They forget that this is not simply a matter of linguistics but law. A system that provides not only for spelled-out precepts but presumptions in their absence.

In line with Article 21, the Rome Statute must be applied “in the first place.” What rule of interpretation is thus adopted by the Statute? The answer is found in Article 21(3), which codified its own lex superior that applies on all sources of law. It provides: “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights[.]”

Contrary to public opinion, the ICC is not a human rights court. Indeed, the Rome Statute established the ICC, and not the international court of human rights. But be that as it may, that is not to say that human rights have no place within the ICC’s function.

The Court should thus interpret Article 127(2) in such a way that would uphold recognized human rights, such as the right to an effective remedy and reparations. Rights that the Philippines itself subscribes to and recognizes under domestic and international law.

Amidst the conflicting interpretations of a “matter under consideration by the Court,” Article 21(3) gives the ICC the elbow room it so badly needs to rule that it retains jurisdiction over the Situation in the Philippines, despite the country’s withdrawal and despite the OTP’s much-delayed investigation request. While the OTP seeks accountability, the government’s interpretation of the withdrawal clause results in impunity. Through the lens of Article 21(3), which interpretation the ICC should adopt is clear. Unfortunately, however, Article 21(3) has never been raised in the withdrawal proceedings or in academic commentaries. It should be.

The ICC recognizes that the Philippines’ withdrawal is a delicate issue. One so fragile that the Court has rather ignored the finer nuances of temporal jurisdiction so as to avoid the risk of authoring its breakage. The Court has instead looked to jurisprudence and the VCLT. But ironically, the answer has lied within the Rome Statute all along.

The elephant in the room can only be ignored for so long before it tramples everything in its path. But as this column shows, it can also be overcome. If only we were willing to face it.

—————-

[email protected]