In a recent verdict, the Appeals Chamber (AC) of the International Criminal Court (ICC) denied the appeal made by the Philippine government to halt the investigation into the Philippine drug war. The investigation focuses on potential crimes against humanity that may have occurred in Davao City from November 2011 to 2016 and throughout the Philippines from 2016 to March 2019. The vote was close, with three judges in favor of continuing the investigation and two dissenting judges opposing it. The outcome hinged on a crucial technical issue, as predicted by former ICC judge Raul Pangalangan.
The pivotal question was whether the Philippine matter was already “under consideration of the Court” prior to the country’s withdrawal from the ICC. Pangalangan highlighted the important dates: the ICC Office of the Prosecutor (OTP) initiated its preliminary examination in February 2018, while the Philippines formally withdrew from the ICC in March 2018, with the withdrawal taking effect one year later in March 2019. In June 2021, the OTP submitted a request to the ICC Pre-Trial Chamber (PTC) to open an investigation, which was granted in September 2021.
The dissenting judges argued that the OTP should have applied for authority to investigate and the PTC should have granted that request before the Philippine withdrawal took effect on March 17, 2019. Since both the request and authority were granted after the withdrawal, they contended that the ICC no longer had jurisdiction over the Philippines. However, the majority of three AC judges ruled differently, citing several reasons. First, the issue of jurisdiction was not decided by the PTC, making it non-appealable. Second, the Philippines did not adequately raise the impact of its withdrawal before the PTC. Third, the withdrawal’s effect was not suitably challenged on appeal by the Philippines. Lastly, by seeking deferral and making submissions to both the OTP and PTC, the Philippines implicitly accepted the Court’s jurisdiction.
The AC decision grants an advantage to the prosecution and victims, increasing the likelihood of arrest warrants being issued by the ICC. This development is particularly intriguing considering recent claims by Ellen Tordesillas that Vice President Sara Duterte, Senator Christopher “Bong” Go, and Senator Ronald “Bato” Dela Rosa, in addition to former president Rodrigo Duterte, are named in documents submitted to the ICC.
On the other hand, the AC decision provides a potential advantage for future accused individuals to raise the issue of lack of ICC jurisdiction, echoing the reasoning of the dissenting judges. Both the majority and dissenting judges based their rulings on technical grounds. By the time an accused challenges jurisdiction again, the composition of the ICC may have changed, as several judges are set to retire by March 2024, including one from the majority and one from the dissenting camp.
If the dissenting judges’ viewpoint had prevailed, it could have had unintended and undesirable consequences. Ruthless leaders might perceive it as an incentive to withdraw their countries from the ICC before or during the commission of atrocities. This ruling undermines the role of the OTP as an essential part of the ICC, as it excludes the OTP’s work from the concept of “under consideration” by the Court.
The majority decision of the AC also carries significant political implications for the Philippines. If there is indeed a serious rift between the Marcoses and the Dutertes, the ICC’s ruling may give the Marcoses an upper hand. It remains to be seen whether the Marcoses will utilize the threat of ICC arrest and prosecution to control and constrain the Duterte camp’s ambitions or leverage it to remove competition. Excitement is building, and the nation may soon face a shortage of popcorn.
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