MANILA (UPDATE) — By a narrow 3-2 vote, the International Criminal Court (ICC) Appeals Chamber affirmed on Tuesday the authorization for the ICC Prosecutor to proceed with his probe on the killings connected to former President Rodrigo Duterte's drug war and the so-called Davao Death Squad in the country.

• ICC junks Philippine gov't appeal, to proceed with drug war probe

Judges Piotr Hofmański, Luz del Carmen Ibáñez Carranza and Solomy Balungi Bossa voted to dismiss the Philippine government’s appeal, which had sought to halt the probe.

But a new argument raised by the Philippine government only during appeal almost tilted the balance in favor of closing down the investigation, managing to convince Presiding Judge Marc Perrin de Brichambaut and Judge Gocha Lordkipanidze.

The Philippine government, in its appeal filed in March, argued the country’s withdrawal from the ICC prior to the start of the ICC Prosecutor’s investigation meant the Hague-based international tribunal no longer has jurisdiction over the Philippine Situation.

It cited artice 127(2) of the Rome Statute which imposes the duty to cooperate on a withdrawing state only “in connection with criminal investigations and proceedings… which were commenced prior to the date with which the withdrawal became effective.”

The same article says the withdrawal shall not prejudice “the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

For the Philippine government, a matter “under consideration by the Court” means criminal investigations authorized by the ICC’s Pre-Trial Chamber and not preliminary investigations being conducted by the ICC Prosecutor.

In short, the two dissenting judges argued, because the then-ICC Prosecutor Fatuo Bensouda only applied for authorization to start her office’s investigation on the Philippine Situation in May 2021, which was granted in September 2021, the ICC had long lost its jurisdiction over the Philippines as early as March 17, 2019 when the withdrawal from the ICC took effect.

Finding that the Pre-Trial Chamber, in its January 2023 ruling authorizing the resumption of the probe, resolved an issue on jurisdiction, Brichambaut and Lordkipanidze said the Appeals Chamber could resolve the Philippine government’s argument, out of the belief that “the fundamental issue of the Court’s jurisdiction should be resolved at the earliest opportunity.”

“[T]he Prosecutor cannot commence the process of triggering the jurisdiction of the Court once a withdrawal has become effective and the State in question is no longer Party to the Statute. The Court’s jurisdiction must be triggered before the withdrawal has become effective,” they said. “Put differently, once the State’s withdrawal has become effective, the Prosecutor can no longer open an investigation.”

They cited the situation in Burundi, where the ICC retained jurisdiction only because the Pre-Trial Chamber authorized the investigation before Burundi’s withdrawal from the ICC took effect on October 27, 2017.

The two judges noted the ICC prosecutor could have made the effort to “trigger” the jurisdiction of the ICC by applying for and securing authorization to start the probe within the one-year period for the withdrawal to take effect — from March 2018 to March 2019.

“We are of the view that one year is sufficient for the Prosecutor to conduct his preliminary examination and request a pre-trial chamber to authorise the commencement of the investigation, and for the pre-trial chamber to rule upon such a request. The Statute thus gives the Court an opportunity to assert its jurisdiction,” they said.

“However, it also respects the States’ right to withdraw from the Statute and therefore provides for limitations to this power of the Court. Without such limitations, the Court’s jurisdiction would stretch to an extent that would defy the assurances and guarantees to the States embedded in the Statute. This could have negative repercussions for the entire Court’s system,” they added.

MAJORITY

But the three judges in the majority disagreed with this interpretation.

For them, the January 2023 Pre-Trial Chamber ruling was “not a decision on jurisdiction” as it “simply reaffirmed that it had jurisdiction,” as established in a prior ruling allowing the probe in September 2021.

Because it was not a ruling on jurisdiction, the issue on jurisdiction could not be discussed by the Appeals Chamber, the majority said.

“The issue of the impact of the Philippines’ withdrawal from the Statute on the Court’s jurisdiction was neither properly raised nor adequately ventilated before the Pre-Trial Chamber. Also, as noted above, the issue was not suitably raised on appeal…[T]he Philippines should have raised the question of the effect of its withdrawal on the Court’s jurisdiction before the Pre-Trial Chamber in order for all parties and participants to make observations on the issue, and for the Pre-Trial Chamber to make a fully informed decision thereon,” they explained.

The majority also believed that the Philippines’ deferral request and submissions to the ICC signify that “the Philippines implicitly accepted the Court’s jurisdiction.”

“In conclusion, since the Impugned Decision does not constitute a decision with respect to jurisdiction and in light of the fact that the issue of the effect of the Philippines’ withdrawal from the Statute on the Court’s jurisdiction was neither properly raised and discussed before the Pre-Trial Chamber nor adequately raised on appeal, the Appeals Chamber cannot entertain the Philippines’ appeal on this point,” the majority ruled.

It didn’t help the Philippines’ case that, according to the majority, its claims of errors are not clear.

“The Appeals Chamber, by majority…finds that the Philippines sets out the alleged errors in a manner that renders unclear both the precise nature of its challenge as well as the legal basis pursuant to which the challenge is made,” they said.

MIXED REACTIONS

In a statement, the Office of the Solicitor General (OSG) expressed disappointment over the ruling, particularly on the issue of jurisdiction.

The OST pointed out that the resolution on jurisdiction was an “integral part” of the January 2023 ruling of the Pre-Trial Chamber and could have been resolved by the Appeals Chamber.

“The gaping hole in the ICC decision was its failure to rule on jurisdiction. The majority (3) did not tackle it, and the minority (2, including the presiding judge) took a strong position that the ICC had already lost jurisdiction over the [Philippines] when the ICC prosecutor sought to commence his investigation. This unresolved issue of jurisdiction will be a powerful argument for any person who may be investigated or charged by the ICC,” Solicitor General Menardo Guevarra told reporters in a message.

Guevarra also disputed the finding that the Philippine government “implicitly accepted” the ICC’s jurisdiction.

“No, we never accepted the court’s jurisdiction, whether expressly or impliedly, as we were very much aware that our withdrawal from the ICC had taken effect in 2019. We made it pretty clear that our continued engagement with the ICC was borne out of comity only and a shared commitment to end impunity,” he said.

The Philippine government’s external counsel, British barrister Sarah Bafadhel, said the issue of jurisdiction is important and can again be raised in future proceedings.

“The issue of jurisdiction is key — it is at the center of court functions and indeed its existence. Without such jurisdictions, the court cannot investigate, it cannot issue arrest warrants and it cannot demand or enforce cooperation,” she said during an online press conference organized by the OSG.

“In the event that the prosecution concluded its investigation and went to issue an arrest warrant - the government would still able to instantly and assert that the court does not have jurisdiction and that would be another appropriate time to assert its sovereign rights and to limit the courts ability and reach in that respect,” she added.

While lauding the ICC ruling, Human Rights Watch also flagged the issue of ICC jurisdiction, which it said may be "raised again at later stages in the proceedings,” such as if a case is eventually brought before the court.

Lawyer Kristina Conti of the National Union of Peoples’ Lawyers and an accredited ICC assistant to counsel, told relatives of drug war victims to expect a long battle ahead on the issue.

“Mahaba pa po. Maaari po nating kaharapin pa ang tinatawag na Art. 19, challenge to jurisdiction and admissibility. Sasabihin na naman nila, hindi dapat nag-iimbestiga in the first place.”

But for Gilbert Andres, executive director for Center for International Law, the ICC Appeals Chamber ruling “strengthens the exercise of jurisdiction by the ICC and expands the PTC [Pre-Trial Chamber] III Decision on Burundi.”

“Though not explicitly stated, the Appeals Judgment implies that the ICC Prosecutor may file an authorization to commence an investigation with the Pre-Trial Chamber even when the withdrawal of a State-party is already effective,” he explained.

OTHER GROUNDS

With the two dissenting judges disagreeing on the issue of jurisdiction, only the three majority judges proceeded to discuss the three other grounds the Philippines raised in its appeal — all of which the majority ruled against.

On the Philipine government’s claim that the burden of proof was reversed in the Pre-Trial Chamber’s ruling, the Appeals Chamber reminded the Philippine government that it is the one, ultimately, asking for a deferral of the probe.

“[I]t is self-evident that the State seeking deferral has an interest in persuading the Prosecutor and, if necessary, the pre-trial chamber, that it is investigating or has investigated the ‘criminal acts which may constitute crimes referred to in article 5’. It does so by providing supporting information,” the ICC Appeals Chamber decision said.

The Appeals Chamber also sided with the Pre-Trial Chamber when it ruled that it correctly applied the “same person-same conduct” and “mirroring” tests.

Under the same person-same conduct test, “the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.”

Mirroring, on the other hand, requires that the “domestic criminal proceedings must sufficiently mirror the scope of the Prosecutor’s intended investigation.”

The Philippines submitted several lists of investigations — from the cases matrices forwarded to the National Bureau of Investigation, the list of cases before the National Prosecution Service and investigative files under both agencies to criminal referrals and disciplinary proceedings — all of which the Pre-Trial Chamber found insufficient.

The Pre-Trial Chamber also found that Philippine probes do not extend to senior officials, vigilante killings, Davao killings and other crimes.

“[T]he Majority considers that in its assessment of complementarity in the context of article 18(2) of the Statute, the Pre-Trial Chamber correctly assessed whether there exists an advancing process of domestic investigations or prosecutions of the same groups or categories of individuals in relation to the relevant criminality within the situation which sufficiently mirrors the scope of the Prosecutor’s intended investigation, taking into account the stage of a situation, as well as the specific circumstances and parameters of the Philippines Situation. Therefore, the Majority finds that the Pre-Trial Chamber did not err in law,” they said.

The Appeals Chamber, finally, said that given the Pre-Trial Chamber’s finding on the Philippines’ inactivity with regard to the relevant crimes, it was correct not to consider the issue of the Philippines’ willingness and ability to investigate.

The Pre-Trial Chamber, it noted, would only be required to assess the willingness and ability of domestic authorities to genuinely carry out an investigation or prosecution if there were ongoing probes and prosecutions or there had been in the past.

If there were none, the Appeals Chamber said, the Pre-Trial Chamber wouldn’t even have to examine the government’s willingness and ability to carry out relevant investigations and proceedings.

SIGNIFICANCE

The denial of the Philippine government’s appeal means it has exhausted all legal remedies possible under the Rome Statute to halt the probe.

Philippine Solicitor General Menardo Guevarra said last week there would no longer be an appeal available to the Philippines should it lose Tuesday’s ruling, even as he said he was not optimistic at the outcome of the appeal.

• SolGen Guevarra not optimistic about ICC ruling on Philippine gov’t appeal

In its statement, the OSG said the Philippines would continue its own probes.

“The majority decision does not alter the fact that the Republic, through its various national and local agencies, remains fully committed to the internal investigation and prosecution of allegations connected to the anti-illegal drug campaign. The Philippine Government will not be deterred by today’s outcome,” it said.

More than 6,000 drug suspects have been killed in police operations, based on official figures. But rights groups estimate up to 30,000 individuals could have been lost due to the drug war.

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