On July 18, the Appeals Chamber (AC) of the International Criminal Court (ICC) voted 3-2 to authorize ICC chief prosecutor Karim Khan to resume his investigation into alleged crimes against humanity committed in the Philippines during the “war on drugs” campaign. However, it is unclear if Khan has publicly indicated that he is continuing the investigation or if he has requested arrest warrants for the suspects. It raises the question of whether he has changed his mind based on the dissenting opinions.
To understand this better, let’s review some important dates. On February 8, 2018, former ICC chief prosecutor Fatou Bensouda announced a preliminary examination of the “Philippine situation” to determine if crimes under the Rome Statute had been committed. In response, the Philippines, under President Rodrigo Duterte, withdrew from the ICC on March 17, 2018. The withdrawal took effect one year later, on March 17, 2019. Two years later, on May 24, 2021, Bensouda filed a request with the Pre-Trial Chamber (PTC) of the ICC to formally begin a preliminary investigation into the Philippine situation. On September 15, 2021, the PTC granted her request and authorized the Office of the Prosecutor, now led by Khan, to commence the investigation. However, Khan agreed to suspend the investigation at the request of the Philippine government to allow for their own inquiry. Dissatisfied with the government’s investigation, Khan asked the PTC to allow him to continue his work, which was granted on January 26, 2023. The government then appealed to the AC.
The Philippine appeal addressed two main issues: complementarity and jurisdiction. Under Article 17 of the Statute, the ICC can decline a case if it is already being investigated or prosecuted by a state that has jurisdiction, unless the state is unwilling or unable to genuinely carry out the investigation or prosecution. Khan and the majority of the AC agreed that the government had not demonstrated a genuine willingness and ability to investigate and prosecute the alleged crime. The majority did not address the issue of jurisdiction because it was not raised in the appealed judgment of January 26, 2023. They stated that the lack of jurisdiction should have been raised in an appeal of the September 15, 2021 decision. Unfortunately, the Philippines did not appeal that decision, so the AC asserted that it was inappropriate to address the jurisdiction issue in the current appeal. The minority, however, argued that the majority made an error by refusing to address the jurisdiction issue. They emphasized that if warrants were issued against the alleged perpetrators, the issue of jurisdiction would be raised and the ICC would be required to address it.
I believe that the chief prosecutor’s victory is only temporary. The ICC may dismiss the complaints or petitions for arrest warrants due to lack of jurisdiction. This may discourage Khan from pursuing the case further, as his efforts could be better utilized in other situations, such as Russia’s war on Ukraine. On the other hand, although the Philippine government suffered a temporary defeat, they gained strategic knowledge from the fact that at least two ICC judges are inclined to dismiss the suit. None of the majority judges took a stance on the jurisdiction issue. In conclusion, the jurisdiction issue centers around statutory interpretation: Is Bensouda’s preliminary examination in 2018 an integral part of the preliminary investigation authorized by the ICC? In my opinion, it is not.
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