The ICC’s continuing jurisdiction over PH (2)

The fate of former president Rodrigo Duterte and others who may stand accused before the International Criminal Court (ICC), will crucially depend on the interpretation that will prevail on the following provisions of Article 127 of the Rome Statute:

“1. A State Party may, by written notification … withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification …”

“2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

An interpretation of Article 127 that will favor and benefit Mr. Duterte, and others who share his fate, is the one articulated by the two dissenting judges of the ICC Appeals Chamber. Under this interpretation, for the ICC to have continuing jurisdiction beyond a country’s effective withdrawal, two preconditions must be present: the ICC Office of The Prosecutor’s (OTP) request for authority to investigate and the ICC Pre-Trial Chamber’s (PTC) grant of such authority, must both happen before the withdrawal becomes effective. The nonaccomplishment of the two preconditions will result in the loss of ICC jurisdiction over the withdrawing country, and the withdrawal will have the effect of retroactively erasing all ICC crimes committed by the citizens of the withdrawing country.

The Philippine withdrawal from the ICC became effective in 2019, but it was only in 2021 that the OTP requested for authority and the PTC gave its go signal for an investigation. Applying the logic of the subject interpretation, the ICC had already lost jurisdiction in 2021, and all ICC crimes committed in the Philippines during our country’s ICC membership from 2011 to 2019 would be treated as having been erased by our country’s withdrawal. This interpretation will surely be the first line of defense that will be invoked by any Filipino who will stand trial before the ICC.With all due respect, there are multiple reasons which show that the above interpretation conflicts with other provisions, as well as the spirit and intent, of the Rome Statute.

First, if horrible crimes against humanity happen on the 11th month after a country’s withdrawal from the ICC, applying the above interpretation, (1) the OTP must file a thoroughly substantiated application to investigate, and (2) the PTC must render a decision granting said request, both within a very tight period of only one month. We can even make the example more extreme by envisioning horrific ICC crimes being committed one day before the withdrawal’s effectivity, and under the above interpretation, the OTP and the PTC must fulfill the two procedural preconditions all within one day, for the ICC to retain jurisdiction thereafter.

These scenarios show that if the subject interpretation is adopted, it will adulterate, render sterile, and will contradict the substantive provision of the Rome Statute which mandates that the ICC will continue to have jurisdiction for crimes committed within one year after a country gives notice of its withdrawal. The two scenarios also show that the ICC state parties never intended to impose the two procedural preconditions, because they will render meaningless the ICC’s extended jurisdiction for crimes committed within one year after a country’s withdrawal. The given scenarios further disprove the reasoning given by the dissenting judges that the one-year period between the notice of withdrawal and the effective date of the withdrawal is enough time for the OTP to submit its request for investigation and for the PTC to act on said request.

Second, the Rome Statute substantively provides that “[t]he crimes within the jurisdiction of the Court shall not be subject to any statute of limitations” (Article 29). A statute of limitations refers to a rule that requires crimes to be investigated and prosecuted within a prescribed maximum number of years, beyond which the court loses jurisdiction. By providing that ICC crimes are not subject to a statute of limitations, the Rome Statute essentially mandates that there are no time limitations for the ICC to investigate and prosecute crimes committed during the period that a country was an ICC member. Contrary to this provision, however, the subject interpretation puts a time limit for the ICC to investigate and prosecute. This shows that the subject interpretation runs counter to the spirit of the Rome Statute and contradicts the substantive intentions of the state parties.

(To be continued)

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