Ignoring the elephant in the room is not a solution. It only makes the situation more difficult to handle. In my previous column, I expressed my skepticism towards the International Criminal Court (ICC) and its reliance on the Situation in Burundi and Article 70 of the Vienna Convention on the Law of Treaties (VCLT). Today, in #JustThinking, we will focus on Article 127(2) of the Rome Statute. This provision states that a state’s withdrawal from the ICC should not affect any matter that is already under consideration by the Court. The key question is whether a preliminary examination by the Office of the Prosecutor (OTP) falls under the category of a “matter already under consideration by the Court.”
This is a matter of interpreting the law. In the Philippines’ case, there are two schools of thought: textualism and teleology, which correspond to the Philippine legal principles of verba legis and ratio legis. Textualism emphasizes the importance of the wording of the law, while teleology focuses on the purpose of the law. Both approaches have their merits, but they are insufficient in this case.
The OTP argues that it is an organ of the Court, and its preliminary examination should be considered as a matter already under consideration by the Court, based on Article 34 of the Rome Statute. However, the term “Court” is used in the Statute to refer solely to the judicial branch in other instances (e.g., Articles 19(3) and 21(2)). The Philippine government seizes on this textual pattern and claims that a preliminary examination, which is conducted solely by the OTP, is not mentioned or contemplated in the Statute, especially Article 127(2).
However, the OTP and the government both face challenges. Firstly, a preliminary examination is not just a mental process of the OTP; it is expressly mentioned in Article 15(6). Secondly, while Article 127(2) does not refer to a specific stage, it applies to “any” matter under consideration by the Court, without requiring an exercise of jurisdiction, a request for approval, or the opening of an investigation. The OTP argues that allowing states to withdraw to evade investigation would undermine the purpose of the Rome Statute. On the other hand, an expansive interpretation of Article 127(2) could give the OTP excessive power over non-party sovereign nations, which may not have been the original intent of the Statute.
Both parties have legal arguments to support their claims. So, what should the ICC do? The current discourse on the matter often treats it as a semantic game, citing various provisions where the term “Court” is used differently. But this is not just about linguistics; it is about the law. The Rome Statute provides not only explicit principles but also presumptions in the absence of clear provisions. According to Article 21, the Statute should be interpreted based on internationally recognized human rights, as stated in Article 21(3).
Although the ICC is not a human rights court, it should interpret Article 127(2) in a way that upholds recognized human rights, such as the right to an effective remedy and reparations. These rights are acknowledged by both domestic and international law in the Philippines. Amidst the conflicting interpretations of a “matter under consideration by the Court,” Article 21(3) gives the ICC the flexibility to assert jurisdiction over the Situation in the Philippines, despite the country’s withdrawal and the delayed investigation request by the OTP. While the OTP seeks accountability, the government’s interpretation of the withdrawal clause would result in impunity. Therefore, in light of Article 21(3), it is evident which interpretation the ICC should adopt.
It is unfortunate that Article 21(3) has not been raised in the withdrawal proceedings or academic discussions. It should be considered. The ICC acknowledges the delicacy of the Philippines’ withdrawal and has been cautious in avoiding potential jurisdictional issues. However, the answer to the problem has always been within the Rome Statute itself. The elephant in the room cannot be ignored forever. It is a challenge that can be overcome if we are willing to confront it.
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