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Will Philippine former President Rodrigo Duterte go on trial for 30,000 extrajudicial drug war killings? The chances have certainly improved, with him in ICC custody now in The Hague.
No one credibly disputes that crimes against the Rome Statute remain in the court’s jurisdiction, even if a state leaves the treaty. For the Philippines, that means March 16, 2019, a year after Duterte transmitted notice of withdrawal. The question in the air is whether officials were timely with actions needed to retain the right to “exercise jurisdiction” now.
Supporters say a “preliminary examination” announced by former Chief Prosecutor Bensouda on February 8, 2018 is enough. Opponents say the Pre-trial Chamber’s authorization to investigate was needed, and that didn’t happen until September 15, 2021, or two and half years too late.
The closest this question has come to adjudication was on July 18, 2023, when the appeals chamber rejected a motion to revoke the authorization. But the majority found only that the question couldn’t be considered at that stage. A dissenting opinion by former Judge Marc Perrin de Brichambaut of France and Judge Gocha Lordkipanidze of Georgia is therefore the only existing jurisprudence on the question. They believe that to retain jurisdiction, a pre-trial chamber authorization must have been secured within the year for a withdrawal to become effective. (Read an explainer on that technical decision here.)
As a supporter of the case and admirer of the often-dangerous work on it by Philippine advocates, this question sometimes keeps me up at night. Nevertheless, I believe Perrin de Brichambaut and Lordkipanidze, though distinguished jurists who’ve devoted themselves to rule of law, made errors which doom their conclusion.
One of these errors was assuming that an unclear provision is clear, and misinterprets a grammatical construct in doing so. Another error was dismissing what seems to be the clear provision.
While legitimately exploring how core treaty purposes and states’ exit rights should be balanced, the judges unduly downplay the significance of a treaty-mandated ICC process, which is the preliminary examination. And they assert a standard for these examinations that matches neither history nor the ICC’s own commissioned expert analysis.
The judges point to treaty Article 12, which states “the Court may exercise its jurisdiction if one or more… States are Parties to this Statute…” They argue that this refers to the day the Pre-trial Chamber rules to authorize the investigation.
The judges acknowledge an oft-cited portion of Article 127 specifying a state’s withdrawal “shall not 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.” But they don’t agree that a preliminary examination is considered the “matter before the court” that the article refers to, arguing that examinations have an “informal nature… [and] do not carry sufficient weight for engaging the Court’s jurisdiction…”
They further assert that to interpret Article 127 as referring to a preliminary examination would “render [it] meaningless by allowing to trigger the Court’s jurisdiction indefinitely.” They note the article appears in the “Final Clauses” section of the statute, asserting “provisions contained in that part cannot alter the carefully crafted jurisdictional regime contained in Part 2…”
Inaccurate analysis
The judges’ take on Article 12 represents an inaccurate analysis of the impact of “are” on the article’s meaning. As a form of “be” denoting present tense, “are” does refer to when a question is asked. But the object “are” refers to here, parties to a treaty, is from a class — legal — for which an object’s present status includes its history. Elements of a legal object’s history can and often do affect its present status.
Put another way, “are Parties to this Statute” is defined without ambiguity, only if “Parties to this Statute” is itself unambiguous. And it’s easy to see “Parties to this Statute” or equivalent terms, on their own are ambiguous.
Consider, for example, a hypothetical post-apocalyptic future in which treaties of our time are no longer effective. A historian writing a book about what happened might title a table, “State Parties to the Rome Treaty.” Readers could not rely solely on that to know whether it includes all states known to ever have been parties, states that were parties for the treaty’s entire lifetime, states that were parties at the time of the apocalypse, states that were parties for more than some minimum duration, or something else.
An illustrative real-world case is “Certain Iranian Assets (Islamic Republic of Iran v. United States of America),” involving a freeze the US placed in 2012 on nearly $2 billion. Iran went to the International Court of Justice in 2016, arguing the freeze violated the 1955 “Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran.” Article 21 reads: “Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty… shall be submitted to the International Court of Justice…”
The US, after withdrawing in 2018, argued ICJ lacked jurisdiction. But the US arguments didn’t rely on withdrawal. All parties agreed “the denunciation of the Treaty… by the United States… ha[d] no effect…,” according to ICJ — that “High Contracting Parties” referred to former parties was uncontroversial. But suppose the US hadn’t withdrawn. “High Contracting Parties” would refer to current parties.
Additionally, suppose Article 21 had slightly different wording: “Any dispute between states that are High Contracting Parties…” This change would have no effect on the clause’s interpretation, in either case. Just as “are High Contracting Parties” is context-dependent here, for similar reasons “are Parties to this Statute” in the Rome Treaty is also context-dependent.
Article 12, then, is not a barrier to relying on Article 127’s non-prejudicing requirement. Beyond that, however, the judges’ characterizations regarding the significance of preliminary examinations, and of Article 127’s reach itself, are both a stretch.
Preliminary examination not informal
The preliminary examination, far from informal, is a treaty-described stage in the ICC process, and the treaty-designated precondition for prosecutor-initiated investigations, according to Article 13. The Chief Prosecutor is a treaty-designated court officer, elected by the Assembly of States Parties. Preliminary examinations, today though not initially, are announced to state parties and the world — a formal act.
Article 127, furthermore, is the section of the treaty addressing withdrawal. That it appears toward the end of the treaty doesn’t change that. Its declaration on not prejudicing matters before the court is broadly written. The function of a preliminary examination, furthermore, is for the prosecutor to consider whether to request authorization for an investigation — a matter under consideration by the Office of the Prosecutor, by definition. Since OTP, according to Article 34, is part of the court, a matter before OTP is a matter before the court as well.
The Rome Treaty’s drafters deliberated at length regarding how powerful the prosecutor should be. The formula a majority settled on is the prosecutor can initiate an investigation, with the Pretrial Chamber reviewing the decision as a safeguard. It demonstrates how significantly delegates regarded the preliminary examination that more than 70 called it an “investigation,” and more than 40 called it a “proceeding”.
It therefore seems arbitrary to reject the preliminary examination as an appropriate procedural trigger. So does focusing on jurisdictional triggers as the central concern for states entangled in proceedings. More central is a proceeding’s length, which usually is more about the investigation stage. Shortening preliminary examinations and full investigations are both worthy goals, if they can be done without foiling justice or reducing case work quality. Victims would certainly welcome shorter timeframes. But how to achieve that is another question.
Treaty practice also usually considers treaty-implicating conduct itself to be the trigger, in this case alleged crimes. But if one wants the year in Article 127 to be reflected, in practice if not statute, it’s not clear the judges’ assertion of a year as enough is supportable. The court’s 2020 Independent Expert Review recommended two years, and as a guideline not a mandate. Historically, only a few preliminary examinations have taken less than a year; most have been multiyear.
And a prosecutor might not have that year. Joel Butuyan, an attorney representing Filipino victims, highlighted to Rappler the scenario of crimes occurring a month before a state’s withdrawal date. A preliminary examination can’t be done in a month, because it includes an assessment of whether a state might credibly investigate the crimes itself, which “takes months or even years.” Dino de Leon explained why a year might not be enough. “Complainants are usually afraid to speak up or to come out, and evidence are buried as the state is usually involved.” The court’s highly-constrained budget impacts all such concerns.
The Assembly has the power to consider investigation lengths. In the meanwhile, it is clear treaty drafters did not want to empower perpetrators to avoid accountability by exploiting court procedure. The judicial chamber likewise ought not to postulate time limits into the treaty language that it doesn’t already have.
To do so in the Philippines case would cut off justice prospects for a crime that, while not the largest by ICC standards, nevertheless is large, and was conducted with brazenness. The ICC clearly retains jurisdiction over Rodrigo Duterte’s drug war crimes, and it should be allowed to see the case through. – Rappler.com
David Borden is founder and executive director of StoptheDrugWar.org, based in Washington, DC. He heads the organization’s Rule of Law program, as part of that organizing forums at international meetings discussing extrajudicial killings in the Philippine drug war. The first of those was the March 2017 UN event with Vice President Leni Robredo’s video criticizing the Duterte drug policies. Borden has a bachelor’s degree in astrophysics from Princeton University, and a master’s degree in jazz composition from New England Conservatory of Music.
