University of Amsterdam
Master Thesis: Final Version
LLM International and Transnational Criminal Law
Supervisor: Jindan Karena Mann
1 July 2020
AMBIGUITY IN THE LANGUAGE
OF THE ROME STATUTE: A
VALID JUSTIFICATION TO AVOID
PROSECUTION AFTER STATE
PARTY WITHDRAWAL?
Sarah Hazel C. Dela Rosa
Student no. 12386243
Email: dsarahhazel@yahoo.com
Figure 1: A corpse of suspected drug dealer, Valien Mendoza, killed by unknown vigilantes. (AFP Photo/NOEL CELIS/https://finance.yahoo.com/news/philippines-drug-war-under-fire-un-rights-council-103204368.html)
ABSTRACT
The research paper aspires to answer the question as to whether or not the crimes committed in the Philippines during the time that it was still a State Party to the Rome Statute can still be adjudicated by the International Criminal Court (ICC), despite the withdrawal of the Philippines having effectively withdrawn from the Court in March 2019, while the situation was just in the preliminary examination phase. In the process of deciphering the durability of the jurisdiction of the Court in the Philippine situation, it exhibits the ambiguities in the provisions of the Rome Statute that outline the effects of State Party withdrawal which plausibly enable State Parties to avoid the jurisdiction of the Court. In particular, this paper analyzes and explores crucial phrases of Article 127 Rome Statute in consonance with Article 70 of the Vienna Convention on the Law of the Treaties (VCLT). Since the author utilizes textual analysis to construe the provisions of the Rome Statute treaty, Articles 31 and 32 of the VCLT were also examined. Furthermore, in order to provide a holistic interpretation of Article 127 Rome Statute, provisions under the Rome Statute enshrining the ability of the Court to exercise its jurisdiction in a case were also elucidated. As can be seen in the Pre-Trial Chamber (PTC) decision on authorizing the Prosecutor to conduct formal investigation into the Burundi situation ,which was also scrutinized below, the PTC distinguishes the mere jurisdiction of the Court in the Burundian situation and the ability of the Court to exercise its jurisdiction in situations. This distinction has detrimental implications on the Philippine situation. Since the Philippines already has successfully withdrawn from the ICC, while the Prosecutor is still in its preliminary examination of the crimes committed by the members of the Duterte administration, the jurisdiction of the Court is still in principle existent, but its enforcement will be insurmountable. It is for the reason that the Rome Statute provisions require that the territory in which the investigation will be administered belongs to a State Party or that the citizens who will be investigated are nationals of a State Party, unless the situation was referred by the Security Council of the United Nations. It is contrast with the Burundi situation, in which the Prosecutor was successfully accorded by the PTC with the authority to start a formal investigation even before the withdrawal of Burundi became effective. As a consequence, that also in effect retains the duty of cooperation of Burundi as per Articles 127 and 87 Rome Statute. However, in the Philippine situation, the duty to cooperate has already extinguished since the matter cannot be regarded under consideration by the Court it has not reached the PTC yet during its withdrawal. The goal and the purpose of the Rome Statute to fight impunity should also be held in reverence but the Court can only go so far as the provisions are criminal law in nature and should be strictly interpreted based on the language provided by the drafters.
TABLE OF CONTENTS
I. INTRODUCTION ... 3
II. THE PHILIPPINES SITUATION ... 7
a. The Philippine War on Drugs (Oplan Tokhang) ... 7
b. Withdrawal of the Philippines from the ICC ... 8
c. Philippines’ Situation under Preliminary Examination by ICC Prosecutor ... 10
III. INTERPRETATION OF ARTICLE 127 IN CONSONANCE WITH THE PHILIPPINE SITUATION ... 13
a. “Criminal investigations and proceedings” ... 14
b. “Duty to Cooperate” ... 16
c. “Nor shall it 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.” ... 18
d. Article 127 in conjunction with Articles 11, 12, 13, and 15 of the Rome Statute and Article 70 of Vienna Conventions on the Law of the Treaties (VCLT) ... 20
IV. The Rome Statute and Article 31 and 32 of VCLT ... 25
V. BURUNDI SITUATION ... 28
a. Brief Historical Background ... 28
b. Pre-Trial Chamber Authorization ... 30
VI. CONCLUSION ... 32
VII.BIBLIOGRAPHY ... 36
VII. ANNEX: LIST OF RELEVANT LEGISLATIVE PROVISIONS... 42
a. Burundi Constitution of 2005 ... 42
b. Pact of Bogota ... 42
c. Rome Statute of the International Criminal Court ... 42
d. Rules of Procedure and Evidence of the International Criminal Court ... 51
e. The Philippine Constitution 1987 ... 53
Ambiguity in the Language of the Rome Statute: A Valid Justification to Avoid Prosecution after State Party Withdrawal?
I. Introduction
“If you cannot blame anybody, you blame the government… A mayor can always threaten a criminal without criminal liability. It is my job to scare people, to intimidate people, and to kill people.”1 These words are a recent statement of the Philippine President, Rodrigo Duterte, in answer to a question pertaining the anti-illegal drug campaign, which he devised early in his political career, specifically when he was still a mayor in his hometown region. The public admission of abuse of power and extrajudicial killings incited and orchestrated by the President, rang the alarm of a substantial number of local and international human rights advocates and legal scholars, which paved the way for the famous campaign to come under the preliminary examination of the International Criminal Court (ICC). The Philippine situation is unprecedented because, unlike the other situations and cases that the Court has taken cognizance of, the withdrawal of the Philippines was already effective before a formal investigation by the ICC commenced, which created a legal gap in regard of the consequences of a Member State withdrawal, pending the decision of the Office of the Prosecutor to request a Pre-Trial Chamber to open a formal investigation into a situation by virtue of Article 15 paragraph 3 of the Rome Statute.2
In reverberation of this legal contention, the present paper aims to scrutinize the uncertain effects of the political move of the Duterte administration to bypass any international ramifications of its brutal campaign, in the context of international criminal law, specifically the effect of the withdrawal on the ability of the International Criminal Court to prosecute and exercise its jurisdiction. In particular, the thesis aims to answer the research question if whether the crimes committed in the Philippines while is a member of the ICC can still be considered under the jurisdiction of the Court despite its withdrawal even before a formal investigation
1 Sofia Tomacruz, 'Duterte: It is my job to kill' (Rappler, 10 March 2020) <https://www.rappler.com/nation/254037-duterte-says-job-to-kill> accessed 11 March 2020.
2 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, art 15.
into the situation was started the situation? In doing so, the paper will dissect the ambiguity in the language of Article 127 of the Rome Statute, which determines the repercussion of a Member State withdrawal from the Court and its residual duty as a former Member State, by peering into the relevant conventions and negotiations between the drafters of the Rome Statute in order to come to an inference of a sound interpretation of the Article.
By examining Article 127 of the Rome Statute, this paper aspires to shed light on the meaning of the phrases “matters already under the consideration by the Court”, the meaning of “Court” more specifically whether the provision pertains to the Chamber or the Office of the Prosecutor itself under the aforementioned provision, “duty to cooperate”, and “criminal investigations and proceedings”. In striving to concisely touch upon the effects of the withdrawal of the Philippines and its duty to cooperate, the paper will also briefly discuss whether the duty to cooperate of the Philippines survived its withdrawal from the Court. The thesis will demonstrate a clear distinction between preliminary examination and a formal investigation. Furthermore, it will also discuss the opinions and analyses of various legal academics who have previously accorded their conclusions on the matter, to contemplate on the prevailing point of view of to the situation in the academia. Since the situation is fairly unique and unparalleled, only a limited selection of case laws can be compared and contrasted with the Philippine situation in further of analyzing the possible legal outcomes of the situation and predicting its significance to the Philippine situation. The situation in Burundi is worth discussing as it its plight as regards to the context of its withdrawal from the Rome Statute is similar to the withdrawal of the Philippines.3
The paper will be a combination of descriptive and advisory research, because it will explore the aspects of the Philippine situation holistically under the Rome Statute and relevant legislations. It will first discuss the facts of the case, then examine the relevant legal provisions and instruments, and finally apply these to the case. The result of this application will be an advice on the possible legal outcomes of the case. In addition, parts of this paper will use textual analysis, especially to examine case law and various legal provisions by discussing their interpretation and implications for the Philippine situation will be pondered upon. Hence, Articles 31 and 32 of the Vienna Convention Law of the Treaties (VCLT) will be scrutinized
3 Public Redacted Version of “Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi”, ICC-01/17-X-9-US-Exp, 25 October 2017, pages 12-16. ; See Annex, section c.
and the ambiguities of the Rome Statute will be discussed as regard to the jurisdictional matters in in the Philippine situation, as it set guidance on the interpretation of treaties. A substantial part of the paper strives to discuss if the vagueness of Article 127 of the Rome Statute and the procedural gaps by the Court that that can be utilized by a State government to make its imminent prosecution by the Court almost impossible to be realized in practice, thereby undermining the jurisdiction of the Court over the crimes committed on in its territory. In strengthening the claims and discoveries the research will unravel as regard to the interpretation of relevant provisions, it will also explore relevant jurisprudence that is imperative in scrutinizing the Philippine situation comprehensively. Particularly, it will examine Article 70 VCLT in consonance with Article 127 Rome Statute in order to shed a light on the consequences of State Party withdrawal from the ICC. In addition, Article 87 Rome Statute will be briefly discussed to demonstrate the consequences of State Party withdrawal on the duty to cooperate of a former State Party.
The second part of this research explores the historical background of the case, and specifically the ideology behind the Philippine anti-illegal drug campaign. Furthermore, it will discuss the withdrawal of the Philippines from the Rome Statute and its preliminary examination status in the Office of the Prosecutor. The third chapter will dive into the germane international law instruments, specifically the Travaux Preparatories, Article 127 of the Rome Statute in consonance with other critical provisions, and the Vienna Convention on Laws of Treaties. The aforementioned discussion is paramount for the determination of sound statutory interpretation of Article 127. The fourth chapter will discuss the Burundi case in comparison with the Philippine situation and assess the reasoning of the Pre-Trial Chamber in granting the Prosecutor to open a formal investigation, as well as its impact on the Philippine case. The fifth chapter will focus on diverse assertions that discredit the jurisdiction of the ICC over the crimes committed in the Philippines while it was still a Member State to the Court, together with counterarguments that support the jurisdiction of the Court. Finally, the last chapter will summarize the discoveries and conclusions of each chapter of the paper.
The thesis is relevant and timely as it tests whether the Court, being the beacon of justice to societies whose domestic Courts are unfit and unobliging to grant them rectitude in the atrocities they endured, has the teeth to put a stop to impunity on grave crimes as stated in its
preamble.4 It will shine a light on some of the flaws of the Rome Statute, which permit an erring State leader that brazenly admits to committing mass killings to roam free and lead a nation that successfully opts out of the Rome Statute after the threat of possibly being investigated by the Prosecutor and prosecuted by the International Criminal Court.
4 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, preamble; See Annex, section c.
II. The Philippines Situation
a. The Philippine War on Drugs (Oplan Tokhang)
The political platforms of President Rodrigo Duterte pervaded Filipino social media with various reforms that supposedly would clean all barrios and Manila City of any traces of illegal drugs. Furthermore, during his political campaign in the country, President Duterte promised the Filipinos that drugs and corruption, which had long been widespread in the nation, would be eradicated within 3 months of his leadership.5 In order to achieve this hefty mission, President Duterte advocated for the same techniques he used while he was still a Davao City mayor. He coordinated with Philippine National Police to compile lists of suspected illegal drug users and sellers in every city of the country. After making these lists, he instructed the Philippine National Police to enforce operation “Knock and Plead” or “Oplan Tokhang”, in which the police would raid the residences of the suspected illegal drug sellers and users without a search warrant. The policemen were granted permission by the President to extrajudicially kill these suspects and their families, even including young children, if they would refuse to surrender.6 The enforcement of the anti-illegal drug campaign was spearheaded by the former Philippine National Police Chief Ronald ‘Bato’ Dela Rosa, now an elected senator in the 2019 Philippine Congressional and Senatorial elections, and was executed by policemen and vigilante groups, or ‘death squads’, that were trained to shoot and kill suspects without any trial or investigation.7
The statistics on the casualties differ, depending on the organization or human rights association that conducts the research. The divergence of statistics is mainly because most of these deaths are unaccounted for by the police force and because these homicides are also committed by vigilante groups, who leave paper signages saying “I am an illegal drug seller” beside the corpses they extrajudicially executed. Therefore, the government does not classify them as casualties of Oplan Tokhang. In 2019, the Philippine National Police Reported that 5,526 suspects were killed during the imposition of the anti-illegal drug campaign, but this data
5 Xave Gregorio, 'From ‘three to six months’ to three years: Drugs, corruption still among Duterte’s woes' (CNN
Philippines, 22 July 2019) <https://cnnphilippines.com/news/2019/7/22/SONA-2019-Rodrigo-Duterte-corruption.html?fbclid=lwAR2> accessed 29 February 2020.
6 Dante Gatmaytan, 'Constitutional Deconsecration: Enforcing an Imposed Constitution in Duterte's Philippines' [2017] 311(62) Ateneo Law Journal 312-350.
does not consist of the kills carried out by anonymous gunmen or vigilante groups. Such gunmen are allegedly members of the police force itself. According to the Human Rights Watch, these non-official kills have led to 27,000 deaths.8 As President Duterte’s domestic approval rating rose to 80%, so did the death toll and killings done by both government officials and vigilantes.9
The utopia of the Duterte administration is the absolute eradication of illegal drugs, because in the eyes of the President, it is the root cause of all evil in the poverty-stricken country. The President prefers this approach instead of establishing an affordable progressive educational system and fostering investments that will generate jobs for unemployed Filipinos, especially for the citizens who reside in the slums, where illegal drug trade is rampant. It is also worth mentioning that the anti-drug campaign infringes Philippine Constitutional guarantees such as the Right to Due Process, Right to Equal Protection of the Laws, Right against Unwarranted Searches and Warrantless Arrests, Right against Self Incrimination, Right to Counsel, Right to Information, and Right to Health.10 However, despite the basic human rights and constitutional violations, Filipinos are at the mercy of International Criminal Court for the bloodbath to end, because another well-acknowledged principle in Philippine legislation is that incumbent government officials cannot be prosecuted, in order not to impede State affairs.11
b. Withdrawal of the Philippines from the ICC
In August 2011, the Philippines submitted its ratification instrument to the Rome Statute, which signifies the delegation of jurisdictional power from the State to the International Criminal Court.12 After the election of President Duterte and the implementation of operation
8 Sheila Coronel, 'The Uncounted Dead of Duterte's Drug War' (The Atlantic, 19 August 2019) <https://www.theatlantic.com/international/archive/2019/08/philippines-dead-rodrigo-duterte-drug-war/595978/> accessed 29 February 2020; Human rights watch, 'Philippines Events of 2019' (Human Rights
Watch, 2019) <https://www.hrw.org/world-report/2020/country-chapters/philippines> accessed 29 February 2020.
9 Lowell Bautista, 'Duterte and his quixotic war on drugs' [2017] 20(2-5) University of Wollongong Research Online <https://ro.uow.edu.au/cgi/viewcontent.cgi?referer=https://scholar.google.com/&httpsredir=1&article=3 877&context=lhapapers> accessed 29 February 2020.
10 The Philippine Constitution (n 5), Article 3; See Annex, section e. 11 Ibid.
12 International Criminal Court, 'Preliminary Examination: The Philippines' (International Criminal
Knock and Plead in 2016, the attention of not only the international community was caught by the brutal campaign, but also that of various Filipino legal practitioners and political oppositions. Ultimately, on April 2017, Attorney Jude Sabio and Senator Antonio Trillianes III, together with other Filipino politicians, gave information to the ICC Prosecutor, detailing the causalities and legal transgressions of the anti-illegal drug campaign.13
However, the information filed by Attorney Jude Sabio was retracted by him, alleging that the submission of information to the Court and its consequential initiation of Preliminary Examination have been used by the opposition to the administration to continuously discredit the regime. Furthermore, Sabio also alleged that the opposition promised him monetary compensation after his submission of information to The Hague, but this was allegedly never agreed with by the opposition members.14 The request for withdrawal of the communication was not accepted by the Court, stating that any communication submitted to the Court under Article 15, paragraph 2 of the Rome Statute about a situation can no longer be expunged and that the allegations and request of withdrawal of the communication by attorney Jude Sabio will not in any way weigh on the preliminary examination being conducted by the Office of the Prosecutor.15
Due to the international pressure on the Duterte administration and commencement of the Preliminary Examination on the Philippine War on Drugs by the International Criminal Court, President Duterte expressed his dissatisfaction in 2018. Moreover, President Duterte threatened that he would authorize the arrest of ICC Prosecutor Fatou Bensouda and ICC employees the minute they land on Philippine territory to perform any examinations or investigations.16 Simultaneously, President Duterte filed the withdrawal of the Philippines
13 Karen Lema , 'Philippine lawyer to withdraw ICC complaint against Duterte' (Reuters, 14 January 2020) <https://www.reuters.com/article/us-philippines-drugs/philippine-lawyer-to-withdraw-icc-complaint-against-duterte-idUSKBN1ZD21Q> accessed 9 March 2020.
14 Eimor Santos , 'ICC says lawyer's complaint vs Duterte cannot be withdrawn' (CNN Philippines, 14 January 2020)
<https://cnnphilippines.com/news/2020/1/14/jude-sabio-international-criminal-court-rodrigo-duterte.html> accessed 9 March 2020.
15 Bagares Romel, ' Why the Sabio communication withdrawal is inconsequential' (Vera Files Truth is Our Business, 15 January 2020) <https://verafiles.org/articles/why-sabio-communication-withdrawal-inconsequential> accessed 9 March 2020; Ornedo Julia, 'ICC: Communication vs Duterte can’t be withdrawn' (GMA News, 14 January 2020) <https://www.gmanetwork.com/news/news/nation/722209/icc-communication-vs-duterte-can-t-be-withdrawn/story/> accessed 9 March 2020.
16 Adrian Gallagher and others, 'Failing to fulfil the responsibility to protect: the war on drugs as crimes against humanity in the Philippines' [2020] 33(2) The Pacific Review Journal 247-277
from the International Criminal Court, which he formalized on paper on March 2018 and submitted it to the United Nations Secretary General by virtue of Article 127 of the Rome Statute, which took effect last March 2019.17
The unilateral withdrawal by President Duterte not only caused an outcry from the international community, but also from some of the Filipino lawmakers, as it was argumentatively executed against the procedural guidelines of the Philippine Constitution as regards to retracting from and acceding to Treaties. According to Article VII, paragraph 21 of the Philippine Constitution, the concurrence of the Senate is essential for the Philippines to validly ratify a treaty. Although the retraction by President Duterte is not a severe violation of the Philippine Constitution, some Senators see this move as setting detrimental precedents, because it implies that a president is able to withdraw from a treaty whenever he or she wishes, without any checks from legislators.18 In addition, since the Philippines is a dualist country that transposes a treaty to a domestic law before it becomes locally enforceable, the permission of the legislators is also required when detracting from Treaties. The legal void was the subject of an inquiry by the Philippine Senators to the Supreme Court of the Philippines. However, the Supreme Court has not yet decided on the matter, and any decision by the Supreme Court would be moot and academic since the withdrawal of the Philippines from the Rome Statute has already gone into effect.19
c. Philippines’ Situation under Preliminary Examination by ICC Prosecutor
On 8 February 2018, the Office of the Prosecutor of the Court announced its commencement of a preliminary examination into the situation in the Philippines, acknowledging that the decision was reached by meticulously scrutinizing the communication
17 Ryan Balisacan, 'Potential Legal Challenges to President Rodrigo Duterte’s Decision to Withdraw the Philippines from the Rome Stuatute' [2018] 1(1) SSRN 1-3; International criminal court, 'ICC Statement on The Philippines’ notice of withdrawal: State participation in Rome Statute system essential to international rule of law' (International Criminal Court, 2018) <https://www.icc-cpi.int/Pages/item.aspx?name=pr1371> accessed 9 March 2020; UNGA Rome Statute for International Criminal Court, Article 127; See Annex, section c.
18 Philippine Constitution, Article 7; See Annex, section e; Balisacan (n 17).
19 Ibid; Mike Navallo, 'No SC action on pleas vs ICC withdrawal days before effectivity- sources' (ABS CBN
News, 12 March 2019) <https://news.abs-cbn.com/news/03/12/19/no-sc-action-on-pleas-vs-icc-withdrawal-days-before-effectivity-sources> accessed 9 March 2020.
and reports archiving the crimes that can be adjudicated in the Court.20 In the recent Report on Preliminary Examination Activities (2019) of the Office of the Prosecutor of the ICC, the Prosecutor mentioned that the extrajudicial killings connected to the anti-illegal drug campaign by the Philippine Government are still occurring, and the United Nations Human Rights Council already promulgated Resolution 41/2, requesting the Philippine Government to take action against the extrajudicial killings by conducting domestic investigations and bringing the perpetrators to Court. The resolution also calls for the High Commissioner to execute an exhaustive written report on the Philippine situation that must be published during the fourth session of the Human Rights Council.21
While assessing the subject-matter jurisdiction of the Philippine situation, the Office of the Prosecutor assessed whether the crimes under scrutiny can be classified as crimes against humanity. Furthermore, since the killings are still continuing the country while the Philippines is already out of the Rome Statute treaty, the Office of the Prosecutor concentrated on the crimes perpetrated between 1 July 2016 to 16 March 2019.22 The aforementioned report also states that the Philippine National Police uses arbitrary and excessive force to enforce the national campaign, which results in the mass killings of suspected illegal drug users and peddlers in the country.23 As mentioned previously, a group of vigilantes was involved in the drug war killings, and the Prosecutor also claimed that there were Philippine National Police members who hide their identities, act as vigilantes and commit murders. The information that has been submitted to the Prosecutor also states that the private citizens who conduct the executions have been under the command of members of the Philippine National Police.24 Furthermore, the recent report mentions allegations that serious ill-treatments and abuses have been committed on these suspects by government officials before their death, and that there are several cases in which family members of the suspected illegal drug peddlers and users were
20 International criminal court, '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, 8 February 2018) <https://www.icc-cpi.int/Pages/item.aspx?name=180208-otp-stat> accessed
10 March 2020.
21 International criminal court, 'Report on Preliminary Examination Activities 2019' (International Criminal
Court, 5 December 2019) <https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf> accessed 10 March
2020; UNGA ‘Promotion and protection of human rights in the Philippines’ (5 July 2019) 41st Session (2019) UN Doc Supp No 41(A/HRC/41/L.20).
22 International Criminal Court (n 12). 23 Ibid.
present during the killings and endured sexual violence acts by the police.25 In addition, minors are being killed either as collateral victims of the drug war because of a mistaken identity, or even as direct targets of the assailants.26
In the Admissibility Assessment segment of the paper, the Prosecutor discusses the objective of the Office to decide whether the cases in the situation are admissible and can be characterized to meet the gravity and principle of complementarity to permit the Office to start a formal investigation.27 It is worth mentioning that regarding the principle of complementarity, it will be an interesting turn of events if the Prosecutor decides to open a formal investigation into the Philippine situation, because it not only is unprecedented, but it will also go against the Philippine laws against the prosecution or investigation of incumbent public officials. The raison d’etre of the doctrine is that it will not only create a vacuum on management of state affairs, but that it will also undermine the dignity of the office of the public official, especially if it involves the high office of the Head of State.28 Furthermore, the Philippine Constitution also bars the Sandiganbayan Court or the Court to adjudicate cases of public officials who committed bribery, corruption, or abuse of power, to even investigate an incumbent President.29 This well-established precedent does not negate the fact that any public officials will not be immune anymore after his or her tenure in the public office.30
However, the critical question in this case is whether the Office of the Prosecutor will wait for the end of the term of President Duterte to decide if formal investigation on the situation is needed and if there is a reasonable ground to open a trial. Nonetheless, at this moment, the office of the Prosecutor is still in the final phase of preliminary examination of the situation. The Office also vowed to publish its decision on whether opening a formal investigation is warranted in the year 2020, and request the authorization to conduct such investigation from
25 Ibid. 26 Ibid. 27 Ibid.
28 [2006] Randolf S. David v. Gloria Macapagal-Arroyo (G.R. No. 171485); [2010] Lourdes Rubrico et. al v. Gloria Macapagal Arroyo et. al (G.R. No. 183871); Frank Lobrigo, 'Presidential immunity: a catch-22' (Inquirer
Philippines, 1 March 2017) <https://opinion.inquirer.net/102067/presidential-immunity-catch-22> accessed 11
March 2020; Al Vitangcol, 'A sitting President is immune from any suit Absolutely' (The Manila Times, 12 November 2016) <https://www.manilatimes.net/2016/11/12/opinion/analysis/sitting-president-immune-suit-absolutely/296134/> accessed 11 March 2020.
29 Ibid; The Philippine Constitution(n 5), Article 8 & 17; See Annex, section e. 30 Ibid.
the Pre-Trial Chamber.31 The last phase of determining whether a formal investigation should be conducted by the Prosecutor is the admissibility and interest of justice phase, in which the Philippine case currently is. In this stage, it is examined whether the domestic court is able and willing to try the case, whether the situation meets the gravity threshold to be considered as falling under the jurisdiction of the ICC and whether the investigation will serve the interest of justice, that is if the interests of the victims will be better served by the Court when opening an investigation.32
III. Interpretation of Article 127 in consonance with the Philippine Situation
The provision of Article 127, specifically the second paragraph, is paramount in understanding the matter at hand and in answering the research question. The paragraph embodies the doctrine enshrined in Article 70 of VCLT, which invokes the existence of obligations of States even after their withdrawal from a treaty.33 The present Rome Statute provision aims to prevent withdrawing States from escaping the prosecution of its nationals in the Court, especially when a situation has already been referred by a State or when the Prosecutor, acting propriu motu, decides to open an investigation.34 However, although the aim of the provision is good, there are still unprecedented situations, such as the case of the Philippines, that demonstrate the ambiguity of the Article. In particular, the consequences of a State Party effectively withdrawing from the Court while a situation in its territory is under preliminary examination of the Prosecutor are unclear, as well as its ramifications for the jurisdiction of the Court to hear the case, should the Court decide to launch a trial.
31 International Criminal Court (n 12).
32 Ibid; 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 593–621; Kai Ambos, 'Interests of Justice? The ICC urgently needs reforms' (EJIL:Talk!, 11 June 2019) <https://www.ejiltalk.org/interests-of-justice-the-icc-urgently-needs-reforms/> accessed 11 March 2020; Coalition for the international criminal court, 'ICC preliminary examinations' (Coalition for the International
Criminal Court, 2002) <http://www.coalitionfortheicc.org/explore/icc-preliminary-examinations> accessed 11
March 2020.
33 Vienna Convention On The Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1972 Nr. 51, Art 70; See Annex, section f; Commentary on the Law of the International Criminal Court (CLICC), 'Commentary Rome Statute' (Case Matrix Network, 2017) <https://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/commentary-rome-statute-part-13/> accessed 18 May 2020.
The current provision does not mention any specific consequences for the retention of jurisdiction in cases under preliminary examination. Therefore, elaborating key phrases of the provision is necessary. In addition, because the provision was discussed during the last day of the Conference of the Rome Statute Preparatory Committee, the provision was not debated in great detail.35 The lack of in-depth discussion during the Conference and adequate specificity in the wording of the provision resulted in uncertainty of the implications of State withdrawals, which has emerged after a number of African States started to withdraw.36
a. “Criminal investigations and proceedings”
The criminal investigations stated in the provision can also be seen in Article 15 of the Rome Statute in consonance with Rule 45 of Rules of Procedure and Evidence (RPE), which mention the responsibility of the Prosecutor to open a formal investigation when he or she finds that there is a reasonable ground that an investigation is necessary and if the situation is under the jurisdiction of the Court.37 Furthermore, Article 15 also states that, in order for the Prosecutor to fully analyze the seriousness of the information, he or she receives additional documents and information at the seat of the Court.38 In addition, it follows from these provisions and Rule 50 RPE that the Prosecutor can only commence a formal investigation once he or she received authorization from a Pre-Trial Chamber (PTC).39
According to Article 53 of the Rome Statute and Rule 48 RPE, when considering whether there are reasonable grounds to open a criminal investigation, the Prosecutor must first consider whether the gathered information on the situation reasonably suggests that a crime has been committed in the jurisdiction, whether the case is admissible under Article 17, the gravity of the crime, the interests of the victims, and interests of justice.40
35 Gerhard Werle and Andreas Zimmermann, The International Criminal Court in Turbulent Times (1st edn, TMC Asser Pres 2019) 24-42.
36 Ibid.
37 International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 48 (2013), Rule 45; See Annex, section d; UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Art 15; See Annex, section c; Case Matrix Network (n 40).
38 Ibid.
39 Ibid; International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 48 (2013), Rule 50; See Annex, section d.
40 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 53; See Annex, section c; International Criminal Court, Rules of Procedure and
On the other hand, proceedings in the Court can be first spotted in Rule 55 RPE.41 It is when a PTC would examine and decide whether approving the request of the Prosecutor to open an investigation at a particular situation is warranted.42 In this stage, the PTC can choose appropriate modes of procedure to scrutinize the request of the Prosecutor and may consider that a hearing should be held.43 When this provision is read together with Article 127 Rome Statute, the proceedings could be interpreted to have started when the PTC decides to have a hearing to determine whether or not the Prosecutor shall be granted permission to open an investigation. Furthermore, any Court proceedings that have already been started at the time of the withdrawal of a State Party shall not be discontinued because of the withdrawal of the State.44
In application of the discussed provisions to the case of the Philippines, it must be mentioned that the situation is only under preliminary examination and is different from the mentioned criminal investigations. The former merely implies that the Prosecutor is only gathering information about the crimes committed in the Philippines at the seat of the Court and does not yet have any investigatory powers to conduct onsite investigations.45 The criminal investigations and proceedings pertain more to the residual duty of the former State Party to cooperate when one of its nationals is already being subjected to these criminal case stages. It must also be mentioned that the phrase refers mainly to the duty of cooperation and unfortunately fails to shine a light on the actual retention or the power of the Court to still adjudicate on a case that involves a national of a former State Party. Therefore, there is a void in the guidelines under Article 127, which dictates the implications of State Party withdrawing while a situation involving a national of that State is under investigation or preliminary investigation.46
41 International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 48 (2013), Rule 55; See Annex, section d.
42 Ibid. 43 Ibid.
44 Case Matrix Network (n 33). 45 Grey and Wharton (n 32).
46 Jennifer Tridgell, 'The Departed: Implications of the Philippines’ Withdrawal from the ICC' (OpinioJuris, 12 April 2018) <http://opiniojuris.org/2018/04/12/the-departed-implications-of-the-philippines-withdrawal-from-the-icc/> accessed 25 May 2020; Dov Jacobs, 'Burundi withdraws from the ICC: what next for a possible investigation?' (Spreading the Jam International Law, International Criminal Law, Human Rights and
Transitional Justice, 28 October 2017)
b. “Duty to Cooperate”
The obligation of State Parties to cooperate is reflected on Part 9 of the Rome Statute.47 As mentioned in the previous section, a State Party is obliged to give assistance during formal investigation of the crimes.48 The duty to cooperate can be classified in two ways, namely in its general responsibility to cooperate and its obligation to transform the Rome Statute into its domestic legislation if the State Party is a monist State.49 Since the ICC relies heavily on the cooperation of the States for its mechanisms to be effective, it outlines procedures in which State Cooperation is important.50 A State Party is not only obliged to give financial support to the Court, but must also surrender suspects when an arrest warrant has been released, identify and locate witnesses, question persons who are under investigation or prosecution and implement the reparation the Court ruled for the victims.51 In particular, Article 87 Rome Statute details the power of the Court to compel State Parties to cooperate and the procedures that the Court has to undertake when requesting for judicial assistance.52
Based on the interpretation in the previous section of the paper, which deals with criminal investigation and proceedings, it can be argued that the extent of jurisdiction of the Court is stronger in cases that have already reached the stage of criminal investigation. At this stage, a former or active State Party already has the duty to cooperate, because the obligation has already accrued when a criminal investigation or proceeding has started before the withdrawal of State Party has gone into effect.53 However, when the withdrawal of a State Party already took effect while its situation is still in the preliminary examination stage, not only the jurisdiction of the Court is debatable, but also its duty to cooperate.
47 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Part 9.
48 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 86; See Annex, section c.
49 Valerie Oosterveld and others, 'The Cooperation of States With the International Criminal Court' [2001] 25(3) Fordham International Law Journal 767-839.
50 Ibid.
51 Amnesty international, 'INTERNATIONAL CRIMINAL COURT: FACT SHEET 10: STATE
COOPERATION WITH THE ICC' (Amnesty International, 31 July
2000) <https://www.amnesty.org/en/documents/IOR40/010/2000/en/> accessed 25 May 2020.
52 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 87; See Annex, section c.
As in the situation in the Philippines, most academics are under the impression that the ICC could retain its jurisdiction on the crime but the duty to cooperate is no longer in existence.54 It is for the reason that unlike with the Burundi case, that will be discussed later on in this paper, the withdrawal of the Philippines took effect already while its duty to cooperate on the investigations or proceedings has not yet accrued because there is was no investigation being started let alone being requested from the PTC. Furthermore, under Article 87(7) Rome Statute, only State Parties can be obliged by the Court to cooperate.55 In effect, if the Court will request the Philippine government to provide assistance in the course of future investigations or Court proceedings, it will now be treated as a Non-State Party. Since the ICC Statute is a treaty, the non-State party to it will no longer be forced to cooperate.56
However, the United Nations Security Council (UNSC) may request a Non-State Party to cooperate such as in the case of Sudan.57 However, such obligation to cooperate at the request of UNSC does not stem anymore from the Rome Statute but the consequences of being a State Party to the United Nations by virtue of Chapter VII Charter of the United Nations.58 However, this demand by UNSC is also controversial as it is uncertain on what set of regulations should be followed in facilitating the assistance and it is questionable whether the UNSC has the necessary effective legal cooperation mechanisms to accomplish the assistance by the uncooperative State.59 Nonetheless, if an investigation on the Philippine situation will be opened in the future without such resolution by the UNSC in the Philippine situation, the Philippine government can no longer be obligated to cooperate.60
54 Tridgell (n 53); Amnesty International, 'Philippines: Withdrawal from the ICC must spur UN action' (Amnesty
International, 17 March 2019)
<https://www.amnesty.org/en/latest/news/2019/03/philippines-withdrawal-icc-spur-un-action/> accessed 25 May 2020; Otto Triffterer and Kai Ambos, Rome Statute of the International Criminal Court A Commentary (3rd edn, Verlag CH Beck, Hart Publishing, Nomos 2016) 2322-2324.
55 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 87 (7); See Annex, section c;
56 Dapo Akande, 'The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC' [2012] 10(1) Journal of International Criminal Justice 299-324; Tladi Dire, 'Complementarity and cooperation in international criminal justice Assessing initiatives to fill the impunity gap ' [2014] 1(44) ISS Paper 1-14.
57 Tanja Müller and Allard Duursmaa , 'The ICC indictment against Al-Bashir and its repercussions for peacekeeping and humanitarian operations in Darfur' [2019] 40(5) Third World Quarterly 890-907.
58 UNSC Res 1593 (31 March 2005) S/RES/1593; Goran Sluiter, 'Obtaining Cooperation from Sudan - Where is the Law?' [2008] 6(5) Journal of International Criminal Justice 6 871-884.
59 Ibid.
It is also worth mentioning that not only the lack of a duty to cooperate that might be an issue should the Prosecutor pursue an investigation into the situation.61 As previously illustrated, under the principles of Philippine laws and case law, immunity of the incumbent President can be a detrimental obstacle to investigations or prosecution. If the Prosecutor decides to open an investigation at this time, the Philippine government will be not be inclined to cooperate even if it is obligated to do so.62 This was also the case of Sudanese former leader Al Bashir, in which a number of African States reasoned competing obligations in its failure to cooperate on an arrest warrant against former President Al Bashir of Sudan.63
c. “Nor shall it 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.”
The phrase “matters already under consideration of the Court”, which could not be expounded by travaux preparatories, is too broad and ambiguous.64 It fails to specify what is meant with the words “Court” and “matters under consideration”.65 It is unclear if “Court” implies different organs of ICC and if “matters” amounts to preliminary examinations.66 Under Article 34 of the Rome Statute, the Court comprises of the Presidency, Appeals Division, Trial Division, Pre-Trial Division, the Office of the Prosecutor (OTP), and the Registry.67 However, the “Court” in this provision could also solely mean the judiciary, because there are numerous Rome Statute provisions that utilize the word “Court” narrowly and different from the Office of the Prosecutor.68 The distinction can be seen in Article 19, when the Prosecutor ask a ruling
61 See footnote no.35.
62 Leila De Lima, 'Putting a president behind bars' (Rappler, 11 March 2017) <https://www.rappler.com/thought-leaders/163870-president-duterte-immunity-suit-behind-bars> accessed 26 May 2020.
63 Max Du Plessis, 'The ICC’s immunity debate – the need for finality' (EJIL:Talk! Blog of the European Journal of International Law, 11 August 2017) <https://www.ejiltalk.org/the-iccs-immunity-debate-the-need-for-finality/> accessed 26 May 2020.
64 Werle and Zimmermann (n 35). 65 Ibid.
66 Ibid.
67 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 34; See Annex, section c; Werle and Zimmermann (n 35); Mark Klamberg, Commentary on the Law of the International Criminal Court (1st edn, Torkel Opsahl Academic EPublisher 2017) 756-757; Alex Whiting, 'If Burundi Leaves the Int’l Criminal Court, Can the Court Still Investigate Past Crimes There?' (Just Security, 12 October 2016) <https://www.justsecurity.org/33501/burundi-leaves-icc-international-criminal-court-investigate-crimes-there/> accessed 26 May 2020.
68 Kevin John Heller , 'A Dissenting Opinion on the ICC and Burundi' (OpinioJuris, 29 October 2017) <https://opiniojuris.org/2017/10/29/does-the-icc-still-have-jurisdiction-over-crimes-in-burundi/> accessed 26 May 2020.
from the Court regarding questions of jurisdiction or admissibility, the ruling of the Court to States deferral under the same provision, the discussion of the Prosecutor and the defense not binding the Court under Article 65, and Article 66 that obligates the Court to rule on conviction if the guilt of the accused is beyond reasonable doubt.69 The author is under the view that it will be a reckless to fuse in this instance the Court and the OTP, since wide arrays of Rome Statue differentiate the two and under Article 95 of the Rome Statute, the matters under consideration by the Court is also mentioned when it allows State Parties to postpone any execution of requests when issues on admissibility is under the consideration by the Court.70
The imminent question that must also be ascertained is whether or not a preliminary investigation by the Prosecutor can already be considered as “matters under its consideration”. There are academics that are in favor of a wider interpretation of the phrase, rendering a matter under consideration when the OTP is already considering securing authorization from PTC to open a formal investigation.71 Furthermore, the Prosecutor of the ICC has also reiterated that preliminary examination will still continue despite the withdrawal and that the Prosecutor may still start an investigation if the reasonable grounds are met.72
However, after the situation in Burundi emerged and the provision at hand has been examined more closely by academics, numerous assessments in academia exhibit that the phrase only pertains to when a situation is in criminal investigation.73 The reasoning behind this is intertwined with the duty of cooperation and its practicality.74 The duty to cooperate of a former State Party does not yet arise when the validity of its withdrawal took effect when the situation involving the State is still under preliminary examination, in consequence, it would be impossible in practice to advance the case as certain critical steps will be futile to execute, such as arresting the accused, gathering evidence and witnesses.75 Moreover, it must also be mentioned that there are some claims that preliminary examination is only when the Prosecutor
69 Ibid; UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 19, 65, and 66; See Annex, section c.
70 Ibid, Article 95; Tridgell (n 46).
71 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (1st edn, Oxford University Press 2016) 1536.
72 International Criminal Court (n 12).
73 Ibid; Tridgell (n 53); Heller (n 68); Jacobs (n 46). 74 Werle and Zimmermann (n 42).
in the Hague simply looks at information, and reports about the situation in general and determines whether further information should be gathered by opening a formal investigation.76
The interpretation above has a detrimental blow on the claim of jurisdiction on the situation in the Philippines. The discussed textual analysis above may imply that since the withdrawal of the Philippines already took effect even before the Prosecutor has requested the PTC to open a formal investigation, it may mean that not only the duty to cooperate of the Philippines will diminish but also the jurisdiction of the ICC to prosecute crimes that took place even before the withdrawal is valid. Under the procedural angle of the matter, it may mean that due to ambiguity of Article 127 of the Rome Statute, which is exhibited above, future prosecutions about Philippine situation may be next to impossible as the Court cannot easily access evidence and documents that may be of paramount to prospective investigations.
Furthermore, if it will be interpreted that the jurisdiction of the Court to the situation will be deemed to have only exercisable when a situation is under criminal investigations or under PTC, it could mean an absolute lack of jurisdiction of the Court on the situation. In contradictory, if the jurisdiction of the ICC and its ability to be exercised will be interpreted as to have commenced already the moment the crimes were committed when Philippines is still a State Party to Rome Statute, the exercise of jurisdiction by the Court may prosper. In balancing between the two interpretations, Article 12 and 19 of the Rome Statute should also be taken into account in consonance with VCLT provisions, since the Rome Statute is a treaty and applying international law angle will only be appropriate.
d. Article 127 in conjunction with Articles 11, 12, 13, and 15 of the Rome Statute and Article 70 of Vienna Conventions on the Law of the Treaties (VCLT)
In general, a crime can be under the jurisdiction of ICC if it fulfills Article 11 and 12 of the Rome Statute that require that a situation must be committed after the entry into force of the Rome Statute, and the State involved in the situation is a State Party to the Rome Statute, or when the crime is committed in the territory of a State Part, or the accused is a national of a State Party.77 When the Court, on the other hand, wants to exercise jurisdiction over a situation,
76 Heller (n 68); Jacobs (n 46).
77 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Articles 11 and 12; See Annex, section c.
Article 13 should be consulted which states that the Court may exercise jurisdiction over crimes committed within territories the Court has jurisdiction over when the situation is referred to by a State Party, referred by the United Nations by virtue of Chapter VII, or when the Prosecutor instituted the investigation as a result of accomplishing one of the duties of the Office that is enshrined in Article 15 Rome Statute.78 Article 70 of VCLT should also be mentioned which advocates for the retainment of obligation or legal situation of the parties created in the course of its execution of the treaty prior to its withdrawal unless the treaty provides otherwise.79
With the provisions above in mind, some academics differentiate between two junctures in the jurisdictional aspects. It is claimed that Article 12 and 13 only tackles the ways in which the jurisdiction of the Court may be activated.80 Under this point of view, the jurisdiction of the Court cannot be activated by mere submission of request to investigate by the Prosecutor to the PTC when the State party at this point has already successfully withdrawn from the Rome Statute.81 It is during this time that the jurisdiction still remains dormant and that the Prosecutor merely initiates an action and therefore does not a power to activate the jurisdiction of the Court yet under the claim.82
Furthermore, Article 127 in accordance with Article 70 VCLT would mean that the jurisdiction of the Court has not been successfully triggered by a mere request of the Prosecutor to open an investigation.83 The legal situation as defined in Article 70 VCLT must have arisen before the withdrawal went into effect.84 In addition, the scope of obligations under Article 127 Rome Statute and 70 VCLT suggest that the obligation that can be retained when withdrawing from the treaty is constrained to temporal limitation.85 As a consequence, crimes that have been committed in their territory before withdrawal can still be a genuine violation against Rome Statute but because obligations in the execution of the Treaty have ceased already including its
78 UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Articles 13 and 15; See Annex, section c.
79 Vienna Convention On The Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1972 Nr. 51, art 70, See Annex, section f.
80 Sergey Vasiliev, 'Piecing the Withdrawal Puzzle: May the ICC still open an investigation in Burundi? (Part 2)' (Opinio Juris, 6 November 2017) <https://opiniojuris.org/2017/11/06/piecing-the-withdrawal-puzzle-may-the-icc-still-open-an-investigation-in-burundi-part-1/> accessed 31 May 2020.
81 Ibid. 82 Ibid. 83 Ibid. 84 Ibid. 85 Ibid.
consent to be exposed to the jurisdiction of the Court.86 It can be therefore be deduced from this that since the situation in the Philippines when the withdrawal of the State took effect is not yet under the jurisdiction of the Court, because the exercise of its jurisdiction is not yet activated, it may mean that the Prosecutor cannot open an investigation anymore as regards to the situation.87
The a contrario reasoning above was also used by Colombia in its case in the International Court of Justice against Nicaragua.88 The Article LVI of the Pact of Bogota is centrale in retaining ascertain whether Colombia can still be under the jurisdiction of ICJ.89 While Colombia had already given its notice to withdraw from the pact in 27 November 2012, ICJ still deemed it to be under its jurisdiction although the proceedings commenced in 26 November 2013.90 In this case, Colombia argued that no proceedings can be imputed against them anymore by virtue of the Pact because it considered its date of submitting a withdrawal notice the deadline for any initiation of proceedings.91 However, this was rejected by ICJ ruling that the argument is dependent on an interpretation from the silence of the provision relating to withdrawal in Article LVI. Furthermore, the Court reasons that one-year notice period shall be taken into consideration and that only after this period will be deemed that any proceedings cannot subject Colombia under the Pack, thus, the Court still has jurisdiction over the State.92 In addition to this, the Court advocated that the withdrawal provision should be interpreted as that proceedings initiated before the transmission of withdrawal would not be affected by withdrawal rather than banning proceedings after the date of the notice of withdrawal.93
In applying style of reasoning above to the matter at hand, it can also be interpreted that since Article 127 is silent in specifying whether proceedings are barred after the effectivity of a State Party withdrawal, it can be argued that it is still viable for ICC to prosecute crimes in
86 Ibid.
87Ibid; Jacobs (n 46); Kevin John Heller, 'What’s Happening with the Philippines Preliminary Examination?' (Opinio Juris, 13 March 2019) <http://opiniojuris.org/2019/03/13/whats-happening-with-the-philippines-preliminary-examination/> accessed 1 June 2020.
88 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia)(Pending) ICJ Preliminary Objections 2016/3 <https://www.icj-cij.org/files/case-related/155/155-20160317-JUD-01-00-EN.pdf> accessed 1 June 2020.
89 Ibid; See Annex, section b. 90 Nicaragua v. Colombia (n 88). 91 Ibid.
92 Ibid. 93 Ibid.
the Philippines committed while it is still a party to the Court.94 However, it must be also worth mentioning the aim of ICJ in the ruling is to set a deadline for the commencement of proceedings on new matters that can still bring Colombia before the Court.95 If the opposite ruling will be proclaimed, alternative dispute resolutions will not be applicable in those one-year notice which is against the object and purpose of the Pact to have peaceful settlements.96 It is in contrast with if we are to apply the argument on the situations in ICC, that could consequent to opening of proceedings even long after the withdrawal of a State took effect.97 At this point, it is also imperative to look into the object and purpose of the Rome Statute because any interpretations that may be drawn up by ICC can be arguably be leaning towards its aims and objectives.
Despite the interpretations against the jurisdiction of ICC to situations such as that of the Philippines, it can be seen that a great deal of human rights organizations and academics are still arguing for the jurisdiction of ICC even though the situation is only at preliminary examination when the State Party in the situation already effectively withdrew.98 According to arguments in favor of the jurisdiction, the crimes committed during the time the withdrawal of the Philippines are not yet effective, in essence, are still prosecutable in the ICC. It is because the crimes were committed during the time the Philippines still have an obligation. Furthermore, it is claimed that withdrawal from the Rome Statute only affects the temporal jurisdiction of the situation, meaning the crimes committed after the withdrawal became effective cannot be investigated by the prosecutor anymore given that there is no UN referral or the Philippines accepting the jurisdiction of the Court.99 Therefore, the prosecutor can still conduct investigations should the Office find that there is a considerable ground for further scrutiny on the matter.100
94 Werle and Zimmermann (n 35), page 33. 95 Ibid.
96 Ibid. 97 Ibid.
98 Tridgell (n 46); Amnesty International Interest in human rights justice, 'Burundi: ICC withdrawal will not derail wheels of justice' (Amnesty International, 27 October 2017) <https://hrij.amnesty.nl/burundi-icc-withdrawal/> accessed 1 June 2020; Whiting (n 67); Param Singh, 'Philippines Pullout From ICC Won’t Block Justice for ‘Drug War’ President Duterte Could Still Face Prosecution by International Criminal Court' (Human
Rights Watch, 18 March 2019)
<https://www.hrw.org/news/2019/03/18/philippines-pullout-icc-wont-block-justice-drug-war> accessed 3 June 2020.
99 Tridgell (n 46); Matt Cannock, 'The Philippines: Rome Statute withdrawal illogical and futile' (Amnesty
International, 20 March 2018) <https://hrij.amnesty.nl/philippines-withdrawal-illogical-and-futile/> accessed 3
June 2020. 100 Ibid.
However, majority of the experts still is under the notion that the Philippines is no longer under obligation to cooperate should the Prosecutor decide to open investigation in the future.101 It is because the duty to cooperate in this situation only exists and survives when the situation was already in the investigation stage by virtue of Article 127 stating investigations and proceedings already commenced before the effectivity of date of the departure shall not be extinguished.102 In this case, there is no residual duty to cooperate that have accrued before the effectivity of the withdrawal took place, therefore, there is no duty to cooperate that can be upheld.
As elucidated and can be surmised from above, procedural ambiguity and the vagueness of the wordings of the Article 127 can imply detrimental effects on the Philippine situation that can hamper the objective of the Court to fight against impunity. As previously discussed, if the a contrario argument will be used in the situation it would mean that the ICC may sustain its jurisdiction the Philippine situation. However, it should also be mentioned that even if there is still jurisdiction on the situation, the Prosecutor at this point may not be able to open formal investigations on the case anymore for the reason that initiation of new matters subject to the jurisdiction of the Court will no longer be possible as State referral and investigations via proprio motu by the Prosecutor are dependent on the condition that the nationality or the territoriality of the involved State is a party to the Rome Statute.103
While the question about the jurisdiction of the Court can be absolutely be answered positively and the crimes committed before the withdrawal of the Philippines should be under the jurisdiction of the Court, the problem lies with triggering the jurisdiction of the Court that at this point have not yet occurred. The author would tend to agree that basically, the jurisdiction of the Court over the crimes is still there. However, the author is also in the opinion that exercising the jurisdiction of the Court would be insurmountable. Thus, even if the Chambers will decide that the Prosecutor can still conduct investigations in the Philippine
101 Ibid; Tridgell (n 46); Emma Palmer, '5 Things You Need to Know about the ICC and the Philippines' (Justicehub, 17 March 2019) <https://justicehub.org/article/5-things-you-need-to-know-about-the-icc-and-the-philippines/> accessed 3 June 2020.
102 Ibid; Tridgell (n 46); Singh (n 98); UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 127.
103 Werle and Zimmermann (n 35); UNGA Rome Statute for International Criminal Court (concluded 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 12 and 13; See Annex, section c.
territory, it is still doubtful whether the Prosecutor can successfully gather crucial information and evidence since the duty of the Philippines to cooperate do not exist anymore.
IV. The Rome Statute and Article 31 and 32 of VCLT
Since Article 127 Rome Statute has been elucidated above in conjunction with germane provisions of the Rome Statute that exhibits the tensions and gaps in the procedural aspects of State Party withdrawal and its effects, it is also essential that the Article 127 should be examined within the framework of VCLT that prescribes the rule of interpretation. Article 31 VCLT embodies general rule of interpretation, which essentially states that the ordinary meaning of treaty provisions in light of its objective and purpose should be taken into account when interpreting terms of the treaty.104 In addition, preambles, annexes, agreements formed for the conclusion of the treaty, any instruments utilized by the State Parties and relevant rules of international law that are suitable in governing the relationship of the State Parties should also be kept in mind when construing treaty provisions.105
On the other hand, Article 32 VCLT outlines an additional recourse if the interpretation that arises from methods exemplified in Article 31 VCLT is absurd or ambiguous.106 It suggests that supplementary materials, such as the preparatory work and the circumstances of treaty conclusion, can also be referred to when interpreting a treaty provision.107 In practice, international law institutions tend to construe treaties in broader terms, not only based on the ordinary meaning of the provisions. This practice leans on the argument that, while it is right that a treaty provision should be interpreted based on its ordinary meaning, it is undeniable that the ordinary meaning of words can be interpreted differently as well.108 Furthermore, some decisions of the ICJ, such as the advisory opinion in the case of Namibia, leaned upon the evolving interpretation of Article 22 of the Covenant of the League of Nations, more specifically the phrases “strenuous conditions of the modern world”, “the well-being and
104 Vienna Convention On The Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1972 Nr. 51, art 31; See Annex, section f.
105 Ibid.
106 Vienna Convention On The Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1972 Nr. 51, art 32; See Annex, section f.
107 Ibid.
108 Richard Gardiner , 'Part II Interpretation Applying the Vienna Convention on the Law of Treaties, A The General Rule, 5 The General Rule: (1) The Treaty, its Terms, and their Ordinary Meaning' [2015] 1(1) Oxford Public International Law 1-55;JG Merrils, 'Two Approaches to Treaty Interpretation' [1971] 4(1) The Australian Year Book of International Law Online 55-82.
