Abstract
This article aims to build a case in favour of the minority decision in the ICC’s Philippines judgment. The decision has been a source of contention amongst international law scholars, and various reasons have been provided for both a wide and restricted interpretation of Article 127 of the Rome Statute. This article aims to take a step back by focusing on the original intention of the framers of the Rome Statute and what exactly a preliminary examination constitutes. The interplay between such examination and a state party withdrawal, including its residual obligations under Article 127, are explored further. A simple question is posed: Is a preliminary examination enough for the International Criminal Court to retain jurisdiction post a state’s withdrawal? In the author’s opinion, the answer is in the negative. This conclusion is based on three key considerations: the clear legislative intent of the drafters; the absence of a judicial review mechanism for preliminary examinations; and the informal nature of these examinations. The article does not address the Vienna Convention on the Law of Treaties, the principle of ‘in dubio pro reo’, or the interpretation of ‘Court’ under Article 127, as ample scholarly material on these topics is readily available.
Background
On 18 July 2023, the Appeals Chamber of the International Criminal Court (‘ICC’) pronounced its judgment in the Situation in the Republic of the Philippines authorising the Prosecutor to resume its investigation in the matter.[1] In a 3-2 decision, with the majority opining that the Court has jurisdiction over the matter, the Chamber dismissed the Appeal.
The situation in the Philippines concerns the crimes committed in the context of the ‘war on drugs’ campaign launched by erstwhile President Rodrigo Duterte. The Rome Statute (‘RS’) confers jurisdiction on the ICC over crimes against humanity, including murder.[2] Acting on multiple reports pertaining to extrajudicial killings and gross human rights violations, the Office of the Prosecutor of the ICC (‘OTP’) opened a preliminary examination[3] (‘PE‘) on 8 February 2018 in this regard. One month later, the Philippines government furtively withdrew from the Statute, which became effective on 17 March 2019.[4]
The Rome Statute has an inherent mechanism provided to regulate withdrawal, which is governed under Article 127. Article 127(2) provides that:
- A state’s obligations, including financial obligations accrued before the effective date of withdrawal are not discharged by the reason of its withdrawal.
- A state’s duty to cooperate with criminal investigations and proceedings already commenced remains unchanged.
- Withdrawal does not prejudice in any way the continued consideration of any matter which was already under consideration by the Court. This particular aspect of Article 127(2) forms the core of the present discussion.
It was only two years after the Philippines’ effective withdrawal on 24 May 2021 that the Prosecutor proceeded with an Article 15(3)[5] request for investigation.[6] This request was approved by the Pre-trial Chamber (‘PTC’) in September 2021.[7] Article 15(3) empowers the Prosecutor to seek authorisation for an investigation following a proprio motu preliminary examination (on one’s own initiative or motion), provided there is a reasonable basis under Article 53.
The OTP suspended activities in November 2021 following the Philippines’ deferral request under Article 18(2) of the Rome Statute.[8] This provision addresses complementarity and allows a state party to request deferral of an investigation on the ground that it is conducting its own domestic investigation. The Prosecutor later sought and obtained authorisation in January 2023 to resume its investigation (‘resumption decision’), citing the inadequacy of domestic proceedings.[9] The Philippines appealed against this resumption decision.[10]
The ICC’s Diverging Perspectives on Withdrawal and Jurisdiction
The majority decision of the Appeals Chamber pertaining to jurisdiction and dismissing the Philippines’ Appeal was based on the following grounds:
- The resumption decision did not constitute a ‘decision with respect to jurisdiction’ within the meaning of Article 82(1)(a) of the Statute.
- The issue of the impact of the Philippines’ withdrawal from the Statute on the Court’s jurisdiction was neither properly raised nor aired before the Pre-trial Chamber. Further, the issue was not suitably raised on appeal.
- By requesting deferral and by making submissions in the context of Article 18 proceedings, the Philippines implicitly accepted the Court’s jurisdiction.
Thus, the majority decision did not specifically address whether a preliminary examination would constitute a ‘matter under consideration’ under Article 127, that is to say, the majority did not deal with the withdrawal issue going into the merits of Article 127. It focussed on the Philippines’ failure to explicitly address the impact of its withdrawal before the Pre-trial Chamber despite contesting the Court’s jurisdiction during the resumption of investigation proceedings.[11]
Nevertheless, the Pre-trial Chamber observed that it had jurisdiction over the situation since the crimes were committed when the Philippines was still a state party to the Rome Statute.[12] The Pre-trial Chamber[13] cited the Burundi[14] and Abd-Al-Rahman cases in its reasoning,[15] neither of which dealt with the issue of whether a preliminary examination would suffice to determine whether a matter was under consideration by the Court.
On the other hand, the dissenting opinion of Judges Marc Perdin de Brichambaut and Gocha Lordkipanidze held that the Prosecutor’s preliminary examination is not a ‘matter… under consideration by the Court’ within the meaning of Article 127(2) of the Statute, and that a situation is only under consideration by the Court once a Pre-trial Chamber authorises an investigation into that situation.[16] The minority cited two reasons for the above analysis:
- The informal nature of a preliminary examination.
- Giving a wide interpretation to Article 127(2), as espoused by the Prosecutor, would render Article 127 meaningless by allowing a preliminary examination to trigger the Court’s jurisdiction indefinitely.
Jurisdiction and Resumption: The Minority’s Procedural Oversight?
The resumption decision cannot be construed as a decision on jurisdiction concerning Article 127 and the Philippines’ withdrawal, as rightly held by the majority.[17] While withdrawal was referenced, the Pre-trial Chamber merely reaffirmed jurisdiction as established in the Article 15 decision.[18] The minority overlooked that the appeal pertained to resumption of investigation, and not its authorisation. The latter explicitly addressed withdrawal. In contrast, the resumption decision was narrowly confined to issues of primacy and complementarity.[19] The scope of the appeal was thus limited to the submissions made before the Pre-trial chamber, which was not required to address withdrawal on its merits, as this was never raised by the Philippines.[20]
In fact, the Pre-trial chamber even dismissed certain arguments raised regarding the gravity of the crime, as this had already been determined in the Article 15 decision.[21] Notably, the authorisation decision had also dealt with the Philippines’ withdrawal and its jurisdictional implications.[22] Therefore, even if the Philippines had raised the issue during the resumption proceedings, it would have encountered this pre-existing determination.
Understanding the proceeding’s nuanced procedural history here is key. The authorisation decision, being an ex-parte proceeding, did not allow the Philippines an opportunity to present its concerns. However, during the resumption proceedings – its first chance to participate – the Philippines failed to address the jurisdictional impact of its withdrawal, leaving the matter unexamined by the Court.
Unresolved Questions: The Majority’s Reluctance to Address Withdrawal
In any case, once the Pre-trial Chamber made a positive finding on withdrawal, the Philippines had every right to challenge it under Article 82, which permits appeal against a decision concerning admissibility or jurisdiction. The question at hand was purely legal, requiring no evidentiary analysis, leaving no barrier to the appellate court addressing it definitively, as the minority has done.[23] The general rule against raising new issues on appeal must give way to justice, especially when rigid adherence to this procedural norm would hinder the appellate court from resolving significant legal questions and establishing guiding principles for future cases.[24] In criminal jurisprudence, this principle is applied with even greater flexibility, and the courts adopt a more liberal stance.[25] Judicial efficiency demanded the same approach in the present case. Moreover, as a general principle, the fundamental question of the Court’s jurisdiction should be addressed at the earliest possible opportunity.[26] Circumventing the issue of whether a preliminary examination would constitute a ‘matter under consideration’ under Article 127 creates uncertainty, risking unnecessary expenditure of the Court’s time and resources.[27]
Additionally, both the majority and minority drew upon the Burundi decision to support their conclusions, though they interpreted it differently. The majority left unnoticed the fact that an investigation was authorised just two days before the withdrawal became effective in the Burundi case. This meant that an ongoing investigation existed under Article 53 at the time of withdrawal.[28] Instead, a context-indifferent interpretation was relied upon, which states that a ‘state party’s withdrawal from the Rome Statute does not affect the Court’s exercise of jurisdiction over crimes committed prior to the effective date of the withdrawal’.[29] Conversely, the minority correctly emphasised that the Burundi decision was issued before the withdrawal took effect, which is specifically why the Court retained jurisdiction.[30] This difference is significant. The Philippines situation required assessing whether a preliminary examination alone suffices for the Court to retain jurisdiction – a question the Burundi case did not confront.
Purpose and Text in Statutory Interpretation: A Delicate Interplay
Several academics have argued that a preliminary examination would constitute a ‘matter under consideration’.[31] This argument is supported by two primary lines of reasoning. First, the Statute should be interpreted through a human rights lens, as provided under Article 21(3).[32] Second, it is put forth that Article 127 should be construed broadly in accordance with the aim of the Rome Statute to end impunity among perpetrators. Essentially, an ‘object and purpose’ interpretation is called for, requiring a reading that prevents a state from avoiding jurisdiction by withdrawing from the Statute.[33] The minority decision has itself acknowledged the tussle between a state’s sovereignty and the statute’s important objective ‘to put an end to impunity’.[34]
The present situation posits an unusual conundrum. While the overarching objective of the Rome Statute – to ensure accountability for large-scale crimes enumerated within its provisions – is beyond dispute, an apparent tension emerges between this goal and the specific legislative intent behind requiring mandatory authorisation to initiate proprio motu investigations. However, a nuanced consideration of these statutory elements reveals a subtle equilibrium that is frequently disregarded.
These two ostensibly conflicting facets are the statute’s overall objective – the end it seeks to achieve – and the prescribed mechanisms – the means by which that objective is to be realised. As a general rule, the two must be harmoniously interpreted.[35] In the author’s view, the abstract purpose of the Act as a whole ought not to be prioritised over what the Statute in its own words, terms, and structure provides. Instead, both aspects should be balanced.[36] Courts must interpret the text as a medium through which the legislature articulates its objective,[37] with purposive interpretation inherently anchored in the text itself.[38] This text delineates the manner by which the legislature envisaged its objective to be achieved, often incorporating qualifications or limitations to the primary purpose. The pre-requisite of authorisation for investigation (in proprio motu cases) to trigger the Court’s jurisdiction is one such qualification incorporated in the Rome Statute. The underlying purpose of a provision cannot be used to ‘supplant’ or ‘create an unexpressed exception to’ the text.[39]
Thus, while the Courts in interpreting Article 127 must consider the objective purpose of the Act, it is also germane that the specific legislative intent behind the corresponding provision, namely Article 15(3), is examined. The latter reflects the legislature’s deliberate choice to impose procedural checks, which must inform any interpretative exercise. Balancing these considerations is crucial to preserving the integrity of the legislative scheme while ensuring that its objectives are met within the boundaries of the statutory framework.
Sovereignty vs Accountability: Striking the Balance
Before delving further into the issue, it is essential to clarify that the author is not of the view that state sovereignty should take precedence over accountability. Sovereignty is neither a static or rigid concept – it is shaped by the international legal order, which defines the basic rights and duties of states.[40] While international criminal law is often perceived as being in conflict with sovereignty, seen as an obstacle to justice, the relationship between the two is much more intricate.[41] Respecting state sovereignty does not entail a rejection of the rule of law. Rather, this discussion emphasises adherence to the framework set out by the Statute and the recognition of the scope of sovereign discretion it allows.
The codification of the Rome Statute represents not only an idealistic set of norms for criminalising actions on a global scale but also a series of political compromises.[42] These compromises were deliberately crafted to ensure accountability on a larger scale while respecting the sovereign prerogative of each nation, but, perhaps more crucially, to secure broader acceptance.[43] In establishing the Court, states consented to the ICC exercising certain aspects of their sovereign powers, such as jurisdiction, however strictly within the Statute’s terms. Even a small deviation from these terms carries implications for state sovereignty. Therefore, once a state withdraws from such an agreement in accordance with its precise stipulations, interpreting the Statute in a way that triggers obligations beyond what it explicitly envisages would arguably infringe upon its sovereignty. The Court’s jurisdiction over the Philippines during its ratification period respects the country’s sovereign choice and free will to be bound by the Statute. However, veering from the Statute in the name of accountability undermines its inherent limitations and disregards the assurances and guarantees provided to States,[44] imposing obligations and restrictions that encroach upon their sovereign rights. As such, the Statute must not be interpreted in a manner that transforms the pursuit of accountability into an infringement on sovereignty.
Hence, the ICC’s decision to circuitously construe a preliminary examination as a ‘matter under consideration’ under Article 127 is flawed, and wrongly transgresses the Philippines’ sovereignty, on account of the reasons articulated in the following three sections.
1. The Legislative Intent behind Article 15: Prosecutorial Discretion under Scrutiny
For the purposes of this essay, it is to be assumed that legislative intent is a discernible concept, that can not only exist but also be empirically proven.
Article 15 is widely regarded as one of the most delicate provisions of the Rome Statute, primarily owing to the intense debates which marked its drafting process. The controversy centred around whether the Prosecutor should be empowered to trigger the Court’s jurisdiction on its own motion,[45] a significant departure from the frameworks embodied in the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda, where such authority was absent.[46] This proposed shift sparked fears of potential abuse of power by the Prosecutor.[47] To address these concerns, a carefully negotiated compromise was reached: under Article 15(3), any proprio motu investigation requires mandatory judicial authorisation by the Pre-trial Chamber, incorporating a critical safeguard.[48]
The Pre-trial Chamber in the Kenya decision[49] had observed that the underlying purpose of such authorisation is to prevent the Court from proceeding with unwarranted, frivolous, or politically motivated investigations that could have a negative effect on its credibility. Construing a preliminary examination as a ‘matter under consideration’ would thus amount to watering down the specific requirement of an authorisation that was deliberately made a part of the Statute. It would be an incongruity to exalt the Prosecutor’s status by equating their preliminary examination (which requires Court authorisation to proceed) as being a ‘matter under consideration’ by the very Court from which Article 15 prescribes authorisation.
The Statute deliberately creates a procedural distinction by requiring judicial authorisation for a proprio motu investigation, a step not mandated for state or UNSC referrals. This additional safeguard ensures that a proprio motu examination attains legitimacy only after passing judicial scrutiny. Moreover, while Article 53(3) allows judicial review of the Prosecutor’s decision not to proceed with state or UNSC referrals, no equivalent review mechanism exists for a proprio motu decision to decline an investigation. This distinction underscores the drafters’ distinct intent to impose stricter checks and balances on the Prosecutor’s discretionary powers. The Statute reflects a cautious approach to regulate the OTP’s authority.
When applied to the Philippines’ case, it appears that the drafters sought to prevent this very scenario. That is, where a preliminary examination, lacking judicial sanction under Article 15(4), could bind a state that has withdrawn from the Court. The specific provision incorporated under the Statute to accord sanctity to the preliminary examination commenced by the Prosecutor before such authorisation thus confers on the Philippines the right not to be compelled to submit to the jurisdiction of the Court.
Granting the OTP unfettered authority while disregarding the explicit safeguards in Article 15(4) fundamentally undermines the purpose of this provision and risks compromising the Court’s credibility.
2. The Dichotomy of Preliminary Examinations: Legal Vacuum or ‘Under Consideration’?
This section examines the legal inconsistencies and impediments that arise in interpreting a preliminary examination as a ‘matter under consideration’ under Article 127.
In the Situation in The Central African Republic, the Office of the Prosecutor had itself submitted a report that before a decision under Article 53(1) for initiation of investigation there is no exercise of prosecutorial discretion susceptible to judicial review by the Chamber.[50] A preliminary examination operates largely beyond the purview of judicial oversight.
Accordingly, before the investigation was initiated in the Philippines’ case, any discretion exercised by the Prosecutor, for instance, the duration and scope of the preliminary examination, could not have been subjected to any judicial review. It is paradoxical and inconsistent that while a preliminary examination cannot be subjected to judicial review by the Court, it could be considered as a ‘matter under consideration’. The OTP asserts that a preliminary examination operates in a legal vacuum regarding judicial review, reinforcing its preparatory and non-binding nature. In contrast, the phrase ‘matter under consideration’ implies active judicial engagement, which presupposes a higher threshold of scrutiny and oversight. Reconciling these contradictory consequences within the same procedural stage is implausible, as it leads to fundamentally contradictory implications for judicial involvement.
Theoretically, the OTP has the authority to commence preliminary examination regarding any state withdrawing from the ICC provided it begins within one year of the state’s notification to the UN Secretary-General under Article 127. This process, entirely at the discretion of the OTP, would enable the ICC to maintain jurisdiction over the issue perpetually, despite the absence of judicial scrutiny or sanctity accorded by the Chamber. One could argue on similar lines that any state could withdraw from the ICC once a preliminary examination is initiated. However, Article 127(1) of the Rome Statute safeguards against this possibility. The one-year window is deemed sufficient for the Prosecutor to conduct a preliminary examination and for the Pre-trial Chamber to consider and potentially authorise the initiation of an investigation.[51] Thus, the Statute strikes a balance by bestowing the Court with the ability to assert its jurisdiction, while simultaneously acknowledging the sovereignty and rights of withdrawing states.
Another anomaly that arises is that while the commencement of a preliminary examination does not trigger any obligation to cooperate, since the cooperation obligations of a withdrawing state are limited solely to investigations and proceedings,[52] the withdrawing state would still be compelled to submit to the jurisdiction of the Court for all other purposes.[53] This creates a disparity between the Court’s jurisdictional reach and the state’s duty to cooperate, raising concerns about the consistency and fairness of the legal framework governing withdrawing states.
While it is quite possible that the Philippines’ withdrawal was motivated by a desire to evade its obligations under the Statute and ensure impunity for the former President, it is essential to recognise that it strictly adhered to the Rome Statute’s treaty withdrawal mechanism. Though this pattern may set a potentially dangerous precedent, the Philippines has acted in a manner that is explicitly permitted under the Statute. In this context, the principle of good faith, a cornerstone of international law, must be seen not as a source of obligation in itself but rather as a principle governing the fulfilment of existing obligations.[54] Therefore, any critique of the Philippines’ actions should not hinge on an expectation of broader obligations but should be rooted in the understanding that good faith applies solely to the fulfilment of surviving legal commitments.
3. Preliminary Examinations are a Gateway, not a Guarantee
This section will explore and discuss analysis that supports the minority’s view that a preliminary examination is informal and does ‘not carry sufficient weight for engaging the Court’s jurisdiction’.[55]
The Prosecutor formally opens a preliminary examination on the basis of Article 15 communications when the alleged crimes appear to fall within the jurisdiction of the Court.[56] While a preliminary examination precedes every investigation under Article 53, it is not necessarily the case that an investigation follows every preliminary examination. The Rome Statute prescribes several criteria to be fulfilled before commencing an investigation, namely jurisdiction (temporal, either territorial or personal, and material); admissibility under Article 17;, and the interest of justice.[57] However, no such prerequisites apply to the preliminary examination. At this stage, the OTP merely gathers information, without investigative powers beyond receiving testimony at the seat of the Court.[58]
Further, as outlined in the OTP’s own policy paper, a preliminary examination does not constitute a ‘case’, which is understood to comprise an identified set of incidents, suspects and conduct.[59] It is evident that at this stage, the OTP is merely evaluating the veracity and seriousness of the information received and if the alleged incident fulfils the criteria provided under Article 53(1).
Without authorisation from the Pre-trial Chamber, a preliminary examination does not result in any immediate legal repercussions.[60] However, this should not be misconstrued as a limitation on the Prosecutor’s ability to proceed with proprio motu investigations The Rome Statute’s framework ensures that its objectives are not hindered, as the threshold for authorising an investigation under Article 15(3) and (4) – namely, establishing a ‘reasonable basis to proceed’ – is purposely set at a low evidentiary standard. This standard, the least stringent within the Statute,[61] can be met without the need to invoke the Court’s enforcement powers under Part 9,[62] enabling the Prosecutor to move forward independently of the obligatory cooperation scheme.
Thus, while the preliminary examination serves as a preparatory phase with no immediate legal consequences, it provides the OTP with the opportunity to establish a reasonable basis for proceeding to an investigation. The onus then lies on the OTP to ensure that authorisation is sought and obtained before a withdrawal becomes effective. However, at the same time, the difficulties encountered by the Prosecutor in the absence of state cooperation cannot be overlooked.[63] Bringing a case before the Court, establishing compliance with the Article 53 criteria, and obtaining the requisite authorisation, all within the prescribed one-year timeframe, is an onerous responsibility.[64] Nevertheless, the Philippines cannot be impeded from benefitting from broader procedural deficiencies that cannot be attributed to its actions.
Conclusion
The Rome Statute, although with noble aspirations, has inherent limitations which should not be ignored. The minority decision in the Philippines’ case has sought to iterate and demonstrate this.
While the majority rightly noted the procedural lapse on the Philippines’ part for not challenging the ICC’s jurisdiction based on its withdrawal before the Pre-trial Chamber, it is crucial to recognise, as the minority observed, that an international tribunal has the authority to determine the extent of its own jurisdiction even in the absence of explicit reference.[65] The question of whether a preliminary examination suffices for the Court to retain jurisdiction is cardinal and warrants greater consideration.
The minority’s conclusion that the informal nature of the preliminary examination does not constitute a ‘matter under consideration’ under Article 127 is a well-founded interpretation of the article. However, it is important to emphasise that the legislative intent behind regulating the Prosecutor’s powers in Article 15(3) and the absence of judicial review over a preliminary examination have been overlooked in the broader discourse.
Retaining jurisdiction on the basis of a preliminary examination risks undermining the balance struck by the Rome Statute between state sovereignty and the need for accountability. The framers of the Statute intentionally drew the line at formal investigations, and respect for this line is crucial to preserving both the legal integrity of the ICC and the principle of state consent that underpins the international legal order.
In this respect, the ICC’s Philippines decision represents an undue transgression of the Philippines’ sovereignty, having withdrawn its consent to be bound by the Rome Statute. In an honourable attempt to further its cause of holding perpetrators accountable, the ICC cannot be given blanket jurisdiction over matters that are neither permitted under the Statute nor intended by its drafters. Such an interpretation amounts to fighting an evil with, it may perhaps be said, a clandestine but more menacing one.
[1] Situation in the Republic of the Philippines (Judgment on the appeal of the Republic of the Philippines against Pre-trial Chamber I’s “Authorisation pursuant to article 18(2) of the Statute to resume the investigation”) ICC-01/21 OA (18 July 2023) (‘Majority decision on appeal from resumption’).
[2] Rome Statute of the International Criminal Court (17 July 1998) 2187 UNTS 3, Art 7(1)(a).
[3] Office of the Prosecutor, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening Preliminary Examinations into the situations in the Philippines and in Venezuela’ (ICC, 8 February 2018) <Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening Preliminary Examinations into the situations in the Philippines and in Venezuela | International Criminal Court (icc-cpi.int)> accessed 11 July 2024.
[4] ICC, ‘ICC Statement on The Philippines’ notice of withdrawal: State participation in Rome Statute system essential to international rule of law’ (ICC, 20 March 2018) <ICC Statement on The Philippines’ notice of withdrawal: State participation in Rome Statute system essential to international rule of law | International Criminal Court> accessed 20 October 2024.
[5] So far, all the requests for authorisation of a proprio motu investigation by the Prosecutor have been allowed (if not at first instance, then on appeal): see Situations in Afghanistan, Bangladesh/Myanmar, Philippines, Burundi, Georgia, Côte d’Ivoire and Kenya, respectively.
[6] Situation in the Republic of the Philippines (Office of the Prosecutor’s Request) ICC-01/21-7 (24 May 2021).
[7] Situation in the Republic of the Philippines (Decision on the Prosecutor’s request for authorisation of an investigation pursuant to Article 15(3) of the Statute) ICC-01/21 (15 September 2021) (‘Authorisation decision’).
[8] Situation in the Republic of the Philippines (Office of the Prosecutor’s Notification) ICC-01/21-14 (18 November 2021).
[9] Situation in the Republic of the Philippines (Decision on the Authorisation pursuant to Article 18(2) of the Statute to resume the investigation) ICC-01/21 (26 January 2023) (‘Resumption decision’).
[10] Situation in the Republic of the Philippines (Philippines Government’s Appeal Brief) ICC-01/21 OA (13 March 2023).
[11] Majority decision on appeal from resumption (n 1) [55].
[12] Resumption decision (n 9) [26], citing Authorisation decision (n 7) [111].
[13] Authorisation decision (n 7) [111], which was in turn cited by the resumption Pre-trial Chamber.
[14] Situation in the Republic of Burundi (Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Burundi) ICC-01/17-X (25 October 2017).
[15] The Prosecutor v Ali Muhammad Ali Abd-Al Rahman (Decision on the Defence ‘Exception d’incompetence’) ICC-02/05-01/20-302 (17 May 2021).
[16] Situation in the Republic of Philippines (Dissenting Opinion of Judge Perrin De Brichambaut and Judge Lordkipanidze) ICC-01/21-77-OPI (18 July 2023) (‘Minority Opinion’).
[17] Majority decision on appeal from resumption (n 1) [55], [57].
[18] Resumption decision (n 9) [26].
[19] Resumption decision (n 9) [10], [18].
[20] ibid [18].
[21] ibid [25].
[22] Authorisation decision (n 7) [111].
[23] Minority Opinion (n 16) [10]-[12]; Kai Ambos (ed), Rome Statute of the International Criminal Court: Article-by-Article Commentary (4th edn, Bloomsbury 2021) 2368.
[24] Hormel v Helvering 312 US 552 (1941); Preedy v Dunne [2016] EWCA Civ 805, [2016] All ER (D) 29 [43]-[46]; Notting Hill Finance Limited v Nadeem Sheikh [2019] EWCA Civ 1337, [2019] 4 WLR 146; State of Iowa v Charles Wyatt 222 NW 867 (1929).
[25] Lester B Orfield, ‘The Scope of Appeal in Criminal Cases’ (1936) 84 University of Pennsylvania Law Review 825, 840.
[26] SeeMinority Opinion (n 16) [11], citing The Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Judgment on the appeal of Libya against the decision of Pre-trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”) ICC-01/11-01/11 OA 4 (21 May 2014) [84]; Williams & Glyn’s Bank plc v Astro Dinamico Compania Naviera S.A. [1984] 1 WLR 438, 441-442: ‘In the ordinary case, there can be little doubt that the question of jurisdiction would fall to be decided first; logically, the court must decide whether it has jurisdiction before it can go on to consider any other question in the action.’
[27] In fact, a situation may arise later in the proceedings, wherein with respect to a specific case arising from this very situation the Court comes to the conclusion that it has no jurisdiction: see Minority Opinion (n 16) [12]. Additionally, the question of law still remains obscure.
[28] SeeRaphael A Pangalangan, ‘The Elephant in the Courtroom: ICC Temporal Jurisdiction Over the Situation in the Philippines’ (Just Security, 10 September 2023) <The Elephant in the Courtroom: ICC Temporal Jurisdiction Over the Situation in the Philippines (justsecurity.org)> accessed 10 June 2024: ‘It cannot be ignored how the timing of Burundi strongly suggests that even the Court was aware that Article 127(2) would require that an investigation must be authorised before withdrawal takes effect’. See also Dov Jacobs, ‘Peek-A-Boo: ICC authorises investigation in Burundi, some thoughts on legality and cooperation’ (Spreading the Jam, 11 November 2017) <https://dovjacobs.com/2017/11/11/peek-a-boo-icc-authorises-investigation-in-burundi-some-thoughts-on-legality-and-cooperation/> accessed 10 March 2025: ‘It is interesting to note that the decision was issued seven weeks after the OTP’s request (less than a month after the Prosecutor submitted additional information on 25 September 2017). In comparison, the delay between the request and the authorisation was 18 weeks in the Kenya situation, 14 weeks in the Côte d’Ivoire situation, and 10 weeks in the Georgia situation.’
[29] Majority decision on appeal from resumption (n 1) fn 64.
[30] Minority Opinion (n 16) [33]-[34].
[31] See, for example, Pangalangan (n 28); Alex Whiting, ‘If Burundi Leaves the Int’l Criminal Court, Can the Court Still Investigate Past Crimes There?’ (Just Security, 12 October 2016) <If Burundi Leaves the Int’l Criminal Court, Can the Court Still Investigate Past Crimes There? (justsecurity.org)> accessed 10 June 2024; Julie Janssens and Amnesty International’s International Justice Team, ‘Burundi: ICC withdrawal will not derail wheels of justice’ (Amnesty International, 27 October 2017) <https://hrij.amnesty.nl/burundi-icc-withdrawal/> accessed 10 June 2024.
[32] Pangalangan (n 28).
[33] Whiting (n 31); Janssens and Amnesty International (n 31).
[34] Minority Opinion (n 16) [28].
[35] GP Singh, Principles of Statutory Interpretation (15th edn, LexisNexis 2021).
[36] Mark Mancini, ‘The Purpose Error in the Modern Approach to Statutory Interpretation’ (2022) 59(4) Alberta Law Review 919.
[37] MediaQMI inc v Kamel, 2021 SCC 23, [2021] 1 SCR 899 [39].
[38] See Aharon Barak, Purposive Interpretation of Law (Princeton University Press 2005) 342: ‘The language of the statute is a primary source for understanding its subjective purpose. In most cases, the legislature succeeds in achieving the goals of the statute through the statutory language. The interpreter, then, learns the purpose from the language, and the purpose in turn helps him or her determine the legal meaning of the statute’s language.’
[39] Placer Dome Canada Ltd v Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 SCR 715 [23].
[40] See, for example, Hans Kelsen, ‘Sovereignty and International Law’ (1960) 48 Georgetown Law Journal 627.
[41] Robert Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’ (2005) 16(5) European Journal of International Law 979, 980-81.
[42] L Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, (Transnational Publishers 2002) 261; Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law, Oxford Monographs in International Law (Oxford University Press 2004) 18, 131.
[43] Allison Marston Danner, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’ (2003) 97(3) American Journal of International Law 510, 514.
[44] Minority Opinion (n 16) [29].
[45] UNGA, ‘Report of the Ad hoc Committee on the Establishment of an International Criminal Court’ (6 September 1995) GAOR 50th Session Supp No 22 (A/50/2022) paras 113-114; UNGA, ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court Volume’ (13 September 1996) GAOR 51st Session Supp No 22 A/51/22 paras 149-151.
[46] Danner (n 43) [510].
[47] ibid [514].
[48] Jimmy Gurule, ‘United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly Complementary to National Criminal Jurisdictions?’ (2001) 35 Cornell International Law Journal 1, 11.
[49] Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Kenya) ICC-01/09 (31 March 2010).
[50] Situation in the Central African Republic (Office of the Prosecutor’s Report) ICC-01/05-7 (15 December 2006).
[51] Minority Opinion (n 16) [29]; Pangalangan (n 28); Roger S Clark, ‘Article 127’, in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court (3rd edn, C.H. Beck, Hart, Nomos publishers 2016) 2324.
[52] Rome Statute (n 2) Art 127(2).
[53] Whiting (n 31).
[54] Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility) ]1988] ICJ Rep 69, ICGJ 102; Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v Nigeria) (Preliminary Objections) [1998] ICJ Rep 275, ICGJ 64.
[55] Minority Opinion (n 16) [35].
[56] The Office of the Prosecutor, ‘Policy Paper on Preliminary Examinations’ (ICC Legal Tools Database, November 2013) <OTP-Policy_Paper_Preliminary_Examinations_2013-ENG.pdf (icc-cpi.int)> accessed 22 October 24.
[57] Rome Statute (n 2) Art 53.
[58] Rosemary Grey and Sara Wharton, ‘Lifting the Curtain: Opening a Preliminary Examination at the International Criminal Court’ (2018) 16(3) Journal of International Criminal Justice 593.
[59] Office of the Prosecutor, ‘Policy Paper’ (n 56) [43].
[60] Ambos (n 23) 2455-2456.
[61] Kenya (n 49) [33], [34]; Situation in the Republic of Côte d’Ivoire (Corrigendum to ‘Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire’) ICC-02/11 (15 November 2011) [24].
[62] Ambos (n 23) 2455-2456.
[63] See, for instance,Office of the Prosecutor, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta’ (ICC, 12 December 2014),<www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-fatou-bensouda-withdrawal-charges-against-mr> accessed 30 January 2025.
[64] For reference, the time elapsed between the initiation of a preliminary examination and the ICC’s authorisation of an investigation varies significantly across cases and is considerable in most situations: Kenya – 2 years and 3 months; Côte d’Ivoire – 8 years; Georgia – 7 years and 5 months; Afghanistan – approximately 13 years; and Burundi – the fastest, with authorisation granted 1 year and 6 months after the preliminary examination began.
[65] Minority opinion (n 16) [10].
Dhun Vinod Santosh
LLB, Government Law College, Mumbai (2025)