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W

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ND THE

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HILIPPINES

“W

AR ON

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A

COMPARATIVE ANALYSIS OF

ICC

JURISDICTION VS UNIVERSAL JURISDICTION AS

THE GROUND FOR INTERNATIONAL CRIMINAL PROSECUTION OF THE

P

HILIPPINES CASE

JESSIE DONZE

STUDENT NUMBER:10984119

E-MAIL: JESSIEDONZE@LIVE.NL

LL.M.THESIS INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW

SUPERVISOR:JINDAN-KARENA MANN

DATE:26JUNE 2020

WORD COUNT:12.985

(INCLUDING FOOTNOTES, EXCLUDING FRONT PAGE, ABSTRACT, FOREWORD, TABLE OF CONTENTS, LIST OF ABBREVIATIONS AND BIBLIOGRAPHY)

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Abstract

This thesis compared two alternative jurisdictions as the ground for international criminal prosecution of the EJK’s that are allegedly part of the Philippines’ president’s anti-drug policy. Whether ICC jurisdiction in light of the Philippines’ effective withdrawal or universal jurisdiction claimed by national courts should prevail was made dependent on the state sovereignty conception that exists within each jurisdiction. Central question to this thesis was: considering the desirability of prosecution of the alleged EJK’s in the Philippines as international crimes in order to avoid their impunity, and considering the notion of state sovereignty, should ICC jurisdiction in context of the Philippines’ effective withdrawal or universal jurisdiction claimed by national courts be the ground for international criminal prosecution of the Philippines case? This thesis found that the boundaries of the treaty-based ICC jurisdiction, grounded in an exclusive state sovereignty conception, prevent the ICC from prosecuting the Philippines case without manifestly overstepping them. Because universal jurisdiction is grounded in a diminished state sovereignty conception, it does not have such jurisdictional constraints. As the EJK’s affect humanity as a whole, national courts claiming universal jurisdiction in the name of humanity are justified to prosecute them. This thesis therefore concluded that universal jurisdiction claimed by national courts should be the ground to hear the Philippines case. With this research this thesis aimed to demonstrate that treaty-based jurisdictions, in contrast to non-treaty-treaty-based jurisdictions, almost inevitably give rise to jurisdictional issues that will eventually form obstacles for the effective prevention of impunity for international crimes.

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Foreword and Acknowledgements

This thesis is written as completion to the LL.M. International and Transnational Criminal Law at the University of Amsterdam. The master’s program focusses on the theory and practice of international and cross-border crimes. While I was already interested in criminal law from quite early on in my studies, I have truly found my passion for criminal law in international perspective over the course of this academic year. I look back with pleasure on an enjoyable and educational year, of which this thesis is the icing on the cake. I have worked hard on this thesis and I can say that I am very satisfied with the end result. I would like to thank my supervisor, Nina Mann, for the pleasant collaboration during my writing process. Her valuable insights and comprehensive feedback gave me the essential guidance needed to complete this thesis. I would also like to thank my mother for her time and attention, her fresh perspective and that the fact that she always encourages me to remain critical. Finally, I would like to thank all the teachers and the students from all over the world that made this academic year as inspiring as it was.

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Table of Contents

Abstract 1

Foreword and Acknowledgements 2

Table of Contents 3

List of Abbreviations 5

1. Introduction 6

1.1 Problem Analysis 6

1.2 Research Question 8

1.3 Methodology and Outline of the Study 8

2. Context and Background 11

2.1 President Duterte’s “War on Drugs” 11

2.2 International Concerns 12

2.3 International Criminal Prosecution of the EJK’s 13

3. Normative Framework: State Sovereignty in ICL 15

3.1 The Tension Between State Sovereignty and Extraterritorial Jurisdiction 15

3.2 From the Westphalian Conception Towards a Diminished Conception of State

Sovereignty 15

3.3 The Significance of State Sovereignty for ICL 17

4. ICC Jurisdiction in Context of Effective Withdrawal 19

4.1 The Philippines Case: Preliminary Examinations and Withdrawal 19

4.2 The Burundi Case: A Guiding Decision 19

4.3 Preliminary Examinations and Authorization by the PTC 21

4.4 Confirmation of ICC Jurisdiction According to the Textual Elements of Article 127(2)

RS 23

4.4.1 Preliminary Examinations: A “Matter”? 25

4.4.2 The OTP: “the Court”? 26

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4 4.5 Confirmation of ICC Jurisdiction According to The Notion of State Sovereignty 28

4.6 Conclusion 30

5. Universal Jurisdiction Claimed by National Courts: An Alternative Solution? 32

5.1 From Exclusive Domestic Criminal Jurisdiction to Universal Jurisdiction 32

5.2 Jus Cogens Norms, the Security Principle and the Harm Principle 33

5.3 Universal Jurisdiction and the ICC 35

5.4 Prosecution of the Philippines Case by National Courts 36

5.5 Conclusion 39

6. Conclusion 40

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List of Abbreviations

EJK: Extrajudicial Killing

ICC: International Criminal Court ICJ: International Court of Justice ICL: International Criminal Law

ICTR: International Criminal Tribunal for Rwanda

ICTY: International Criminal Tribunal for the former Yugoslavia OTP: Office of the Prosecutor

PTC: Pre-Trial Chamber

RS: Rome Statute

UN: United Nations

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1. Introduction

1.1 Problem Analysis

On the 30th of June 2016, Rodrigo Duterte was inaugurated as the brand-new president of the

Philippines.1 He won the elections overwhelmingly.2 Reportedly, he owes a large part of his

victory to his infamous anti-drug campaign. Duterte adopted a no-nonsense policy to put an end to the Philippines’ drug industry at all costs. With his so-called “war on drugs”, he promised to arrest or even kill every drug dealer in the country.3 This promise turned out not

to be an empty one. His anti-drug policy has supposedly led to the deaths of thousands of Filipinos.4 This sparked great international concern, since these deaths are allegedly the result

of EJK’s.5 EJK’s are considered to be extremely unethical and a grave violation of human

rights.6 It is therefore not surprising that Duterte’s war on drugs is so alarming to human rights

advocates7 and national governments.8 It has even been argued that the EJK’s amount to

international crimes.9 The international community calls for prosecution of the EJK’s, to put

1 Jason Gutierrez, ‘Rodrigo Duterte inaugurated as Philippines president’ CNN (Manila, 30 June 2016)

<https://edition.cnn.com/2016/06/29/asia/philippines-duterte-inauguration/index.html> accessed 22 January 2020.

2 Michael Ray, ‘Rodrigo Duterte’ (Encyclopaedia Britannica, 14 May 2019)

<www.britannica.com/topic/Rodrigo-Duterte> accessed 22 January 2020.

3 ‘Kill drug dealers and I’ll give you a medal, says Philippines president’ The Guardian (Manila, 5 June 2016)

<www.theguardian.com/world/2016/jun/05/kill-drug-dealers-medal-philippines-president-rodrigo-duterte> accessed on 22 January 2020.uteron

4 ‘Philippines’ ‘War on Drugs’’ (Human Rights Watch) <www.hrw.org/tag/philippines-war-drugs> accessed on

23 January 2020.

5 David T Johnson and John Fernquest, ‘Governing through Killing: The War on Drugs in the Philippines’

(2018) 5 Asian Journal of Law and Society 359, 360.

6 UNGA, ‘Summary or arbitrary executions’ by UNGA Res 39/110 (14 December 1984).

7 ‘World Report 2017’ (Human Rights Watch) <www.hrw.org/world-report/2017/country-chapters/philippines>

accessed on 5 February 2020; ‘World Report 2018: Philippines’ (Human Rights Watch) <www.hrw.org/world-report/2018/country-chapters/philippines> accessed on 5 February 2020; ‘World Report 2019’ (Human Rights Watch) <www.hrw.org/world-report/2019/country-chapters/philippines> accessed on 5 February 2020.

8 UNCHR, ‘Report of the Working Group on the Universal Periodic Review: Philippines’ UN Doc

A/HRC/36/12 (19 September 2017) [21]-[22], [28]-[29], [35], [37], [45], [48], [51], [74], [78], [79], [83], [88], [103], [109].

9 Adrian Gallagher, Euan Raffle and Zain Maulana, ‘Failing to fulfil the responsibility to protect: the war on

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7 an end to Duterte’s war on drugs once and for all. This thesis discusses two alternative extraterritorial jurisdictions for international criminal prosecution of the Philippines case. The arguments presented to evaluate these alternatives rely on a prima facie assumption that the EJK’s in the Philippines do indeed amount to international crimes.

To answer the question which jurisdiction should prevail, the alternatives are evaluated on the basis of the normative framework of the notion of state sovereignty. State sovereignty is defined as the supreme legitimate authority within a territory. The notion of sovereignty lends legitimacy to state power,10 and thus to criminal proceedings. Whether the Philippines’

state sovereignty can legitimately be overridden for the purpose of criminal proceedings by the extraterritorial jurisdictions presented in this thesis, and if so to what degree, displays one of the most prominent issues within the field of ICL.11 The notion of state sovereignty will

therefore be the guiding principle in the evaluation of which alternative jurisdiction should apply for prosecution of the Philippines case.

The first alternative presented by this thesis is prosecution by ICC jurisdiction. After the OTP announced its preliminary examination into the Philippines and the reported incidents of EJK’s,12 the Philippines formally notified its withdrawal from the RS.13 The withdrawal

became effective on 17 March 2019.14 This effective withdrawal might bring great

implications, since it is now unclear if the ICC still has jurisdiction over the Philippines. In the proper assessment of ICC jurisdiction over the Philippines, the Burundi case can offer guidance.15 This decision has been the only instance in which the ICC has commented on the

legal consequences of effective withdrawal on ICC jurisdiction. But there is a critical difference. Where the OTP’s investigation into Burundi was authorized by the PTC before the withdrawal became effective, the PTC has not yet authorized the investigation over the already effectively withdrawn Philippines. Whether the PTC should still authorize the case is

10 Daniel Philpott, ‘Sovereignty: An Introduction and Brief History’ (1995) 48 Journal of International Affairs

353, 355.

11 Larry May and Zachary Hoskins, International Criminal Law and Philosophy (CUP 2010) 1-2.

12 Fatou Bensouda, ‘Statement of the Prosecutor of the Prosecutor of the International Criminal Court, Fatou

Bensouda, on opening Preliminary Examinations into the situation in the Philippines and in Venezuela’ (ICC, 8 February 2018) <www.icc-cpi.int/Pages/item.aspx?name=180208-otp-stat> accessed on 2 February 2020.

13 Communication of the Secretary-General, ‘Philippines: Withdrawal’ (2018) UN Doc

C.N.138.2018.TREATIES-XVIII.10.

14 Art 127(1) RS.

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8 dependent on the confirmation of ICC jurisdiction. If the ICC does not have jurisdiction over the Philippines anymore due to the effective withdrawal, it is undeniable that the PTC cannot confirm this jurisdiction and thus cannot authorize the case.

The uncertainty about the ability of the ICC to prosecute is problematic, as a negative conclusion seems to result in impunity for Duterte. If assumed that EJK’s amount to grave violations of human rights and that the international community has an obligation to punish such violations, then it is pivotal that the EJK’s do not remain in impunity. It is therefore relevant to examine other possible jurisdictions for international criminal prosecution. For this purpose, this thesis presents prosecution by national courts claiming universal jurisdiction as an alternative for ICC jurisdiction. The jurisdictional constraints of the treaty-based ICC may lead to the preference for universal jurisdiction as the ground to prosecute the Philippines case. This raises the question whether universal jurisdiction can provide a solid basis for national courts to prosecute, and if so, on what grounds. To prevent impunity for Duterte, someone in the international community needs to take up the responsibility of prosecution. But who will end the Philippines’ “war on drugs”?

1.2 Research Question

The previous problem analysis formulates into the following research question: considering the desirability of prosecution of the alleged EJK’s in the Philippines as international crimes in order to avoid their impunity, and considering the notion of state sovereignty, should ICC jurisdiction in context of the Philippines’ effective withdrawal or universal jurisdiction claimed by national courts be the ground for international criminal prosecution of the Philippines case? It is hypothesized that the boundaries of the treaty-based ICC jurisdiction, grounded in an exclusive state sovereignty conception, prevent the ICC from prosecuting the Philippines case without manifestly overstepping them. It is also hypothesized that since universal jurisdiction is grounded in a diminished state sovereignty conception, it does not have such jurisdictional constraints, and could therefore provide an alternative for national courts to prosecute the Philippines case.

1.3 Methodology and Outline of the Study

This thesis aims to demonstrate, by using the Philippines case as a prime example, that international prosecutions based on treaty-based jurisdictions such as ICC jurisdiction inherently reinforce an exclusive state sovereignty conception and will therefore almost

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9 inevitably give rise to jurisdictional issues, while non-treaty-based jurisdictions such as universal jurisdiction reinforce a diminished state sovereignty conception and will therefore not raise similar issues. The main method of research chosen to investigate this, is a

comparative analysis. Comparing ICC jurisdiction to universal jurisdiction in light of the notion of state sovereignty to analyze which regime should be the ground to prosecute the Philippines case is the overarching method used in this thesis. To answer the research question, this study is divided into subquestions. Each chapter of this thesis answers one subquestion.

Chapter 2 examines the background and context of the Philippines case. The

subquestion to be answered in this chapter is: why did the Philippines’ “war on drugs” lead to the international community calling for prosecution? The main method of research chosen to investigate this is the descriptive approach. This chapter provides insight into Duterte’s anti-drug campaign, its alleged EJK’s and the response of the international community to this course of events. Some human rights perspectives are introduced throughout this chapter to clarify why the Philippines’ war on drugs brought about the call for prosecution.

Chapter 3 presents the normative framework of the state sovereignty notion in ICL as the basis for evaluation of the two alternative jurisdictions. The subquestion to be answered in this chapter is: how did the notion of state sovereignty develop in the field of ICL? The main method of research applied to examine this question is a normative analysis. Different conceptions of state sovereignty are presented to demonstrate that a traditional notion of exclusive state sovereignty has shifted towards a human rights notion of diminished state sovereignty.

Chapter 4 will zoom in on the ICC jurisdiction alternative. The subquestion to be answered in this chapter is: should the PTC, given the context of the Philippines’ effective withdrawal, authorize the Philippines case by confirming ICC jurisdiction? This is examined on the basis of three methods of research. The first method is a comparative case-law

analysis, where the findings of the Burundi case will be compared to the Philippines case. The second method is a doctrinal legal analysis, where the textual elements of Article 127(2) will be analyzed to find if ICC jurisdiction over the Philippines can be confirmed. The third method is a normative analysis, where the notion of state sovereignty within the ICC will be analyzed to find if ICC jurisdiction can be confirmed.

Chapter 5 explores the alternative of universal jurisdiction claimed by national courts. The subquestion to be answered in this chapter is: can national courts claiming universal

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10 jurisdiction provide an alternative solution for prosecution of the Philippines case? The main method of research chosen to investigate this, is a normative analysis. Special attention is paid to Larry May’s justifying theory for universal jurisdiction. A doctrinal legal analysis is used to demonstrate that universal jurisdiction is not part of the ICC, which serves as an argument to suggest that May’s theory can alternatively provide a justification for prosecution of the Philippines case by national courts claiming universal jurisdiction. Massimo Renzo’s accountability-based theory is applied to argue that since EJK’s raise responsibility for humanity as a whole, national courts claiming universal jurisdiction are justified to prosecute the Philippines case in the name of humanity.

In Chapter 6 the findings of the study are summarized, leading to the final conclusion that not ICC jurisdiction in context of the Philippines’ effective withdrawal, but universal jurisdiction claimed by national courts should be the ground to prosecute the Philippines case.

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2. Context and Background

2.1 President Duterte’s “War on Drugs”

‘Hitler massacred three million Jews. Now there is three million, there’s three million drug addicts. There are. I’d be happy to slaughter them.’16 ‘I don’t care about human rights, believe

me. There is no due process in my mouth.’17 ‘All of you who are into drugs, you sons of bitches,

I will really kill you.’18 These statements only display a small part of the pronounced anti-drug

campaign that led Rodrigo Duterte to presidential victory. Collecting almost as many votes as his two most eligible competitors combined, Duterte won the elections overwhelmingly.19

On June 4th 2016, the brand new president-elect of the Philippines gave a speech in

which he vowed to put an end to the extensive illegal drug trade that the Philippines has been struggling with for years.20 He promised to arrest or even kill every drug dealer in the country

and that those who would help him in his “war on drugs” would be rewarded.21 This violent

solution for the Philippines’ major drug problem has been received with great acclaim and seems to be the reason why the majority of the voters chose him as their national leader.

After the inauguration on June 30th, his policy to counteract the drug industry was put

into practice. The bold promise to put an end to the drug industry within six months, if necessary with violence, turned out not to be an empty one.22 Allegedly, his anti-drug policy

16 Felipe Villamor, ‘Duterte, Citing Hitler, Says He wants to Kill 3 Million Addicts in the Philippines’ The New

York Times (Manila, 30 September 2016) <www.nytimes.com/2016/10/01/world/asia/philippines-rodrigo-duterte-hitler-drugs.htm> accessed 2 February 2020.

17 ‘Rodrigo Duterte: ‘I don’t care about human rights’’, Aljazeera (8 August 2016)

<www.aljazeera.com/news/2016/08/rodrigo-duterte-human-rights-160806211448623.html> accessed on 10 February 2020.

18 Rishi Iyengar, ‘The Killing Time: Inside Philippine President Rodrigo Duterte’s War on Drugs’ Time (Manila,

25 August 2016) <https://time.com/4462352/rodrigo-duterte-drug-war-drugs-philippines-killing/> accessed on 11 February 2020.

19 Ray (n 2).

20 ‘Rodrigo Duterte speaks at the 12-hour victory party on Saturday 4 June 2016 at Davao City’ (Raffler, 4 June

2016) <www.youtube.com/watch?v=XXNv7qetYKA> accessed 15 February 2020.

21 ‘Kill drug dealers and I’ll give you a medal, says Philippines president’ (n 3).

22 Sophie Cousins, ‘Five thousand dead and counting: the Philippines’ bloody war on drugs’ (BMJ, 28 November

2016)

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12 has led to the deaths of more than 12.000 Filipinos.23 While some have been executed as a

result of legally permitted judicial killing in the form of capital punishment, concerns exist that many have been killed extrajudicially.24

Duterte’s aforementioned statements demonstrate that he has often publicly condoned if not outright encouraged EJK’s to end the country’s drug problem.25 Nonetheless, the

Philippines’ government appears to be ambiguous about their direct involvement in them.26

While not denying that thousands of drug personalities have died during anti-drug operations,27

the government has repeatedly denied allegations of responsibility or support for EJK’s,28

reiterating that there exists no state policy that promotes, condones, sanctions or encourages them.29 However, Duterte’s repeated calls for them suggest another narrative.30

2.2 International Concerns

Duterte’s “war on drugs” has drawn widespread international attention. Global human rights organizations and several governments have condemned Duterte’s approach and expressed their concerns about the EJK’s.31 EJK’s are considered to be extremely unethical and a grave

VRJurx_sFwdJMYTTcN1ROCkwF_j40LxVyKymryKD78e26CJEf7ULe2TNr0c> accessed on 14 February 2020.

23 ‘Philippines’ ‘War on Drugs’’ (n 4). 24 Johnson and Fernquest (n 5).

25 Mikaela Y Medina, ‘Extrajudicial Punishment to Combat the Philippine Drug War: Problem or Solution?’

(2017) 14 Loyola University Chicago International Law Review 155, 156.

26 Johnson and Fernquest (n 5) 363.

27 Ronald M Dela Rosa, ‘One Year Report 2017’ (Philippine National Police)

<www.pnp.gov.ph/images/publications/CPNPDelaRosa_OneYearReport16-17.pdf> accessed on 29 May 2020, 3.

28 ‘Going on for a long time’: Duterte admits to EJKs in Davao City’ CNN (Manila, 11 May 2019)

<https://cnnphilippines.com/news/2019/5/11/Duterte-EJK-Davao-City.html> accessed on 2 March 2020.

29 UNCHR, ‘National report submitted in accordance with paragraph 5 of the annex to Human Rights Council

resolution 16/21: Philippines’ Un Doc A/HRC/WG.6/27/PHL/1 (1-12 May 2017) [104].

30 Phelim Kine, ‘Phillipine President Rodrigo Duterte’s ‘War on Drugs’’ (2016) 38 Harvard International

Relations Council 24, 25.

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13 violation of human rights.32 As they divert from the sanctions allowed by law and judicial

proceedings, they purposely circumvent principles of the rule of law and due process.33

On 5 July 2019, the UN General Assembly adopted a resolution, expressing deep concerns about the allegations of EJK’s and urging the Philippines’ government to take all measures to prevent them.34 Similarly, several states expressed their concern about the situation

in the Universal Periodic Review of the Human Rights Council.35 Some called for an

investigation into the alleged EJK’s by allowing the Special Rapporteur to report on the situation.36 But since Duterte became president, the Special Rapporteur has not visited, nor

reported on the EJK’s.37 The Human Rights Watch has also been reporting on Duterte’s war

on drugs. From 2015 onwards, 38 the organization expressed its concern about the violent

anti-drug policy.39 The concern about the situation has even led human rights advocates to believe

that the EJK’s amount to international crimes.40 For the purpose of this thesis, the arguments

presented hereinafter rely on this prima facie assumption that the alleged EJK’s in the Philippines do indeed amount to international crimes.

2.3 International Criminal Prosecution of the EJK’s

If it is presumed that the international community has an obligation to prevent and punish international crimes, then it is pivotal that the EJK’s do not remain in impunity. In other words, the EJK’s call for international criminal prosecution. For the purpose of this thesis, it is presumed that Duterte is the most appropriate perpetrator to prosecute for the EJK’s. Through his various public statements to the Philippines’ police to kill everyone related to the drug

32 UNGA (n 6).

33 Frederico Andreu-Guzmán, Enforced Disappearance and Extrajudicial Execution: Investigation and

Sanction: Practitioners Guide No. 9 (International Community of Jurists 2015) 57.

34 UNGA, ‘Promotion and protection of human rights in the Philippines’ by UNGA Res 41/L.20 (5 July 2019). 35 UNCHR (n 8).

36 ibid [133.13]-[17], [86], [107], [119].

37 The last visit of the Special Rapporteur on extrajudicial, summary or arbitrary executions to the Philippines

has been in February 2007. See UNCHR ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston Addendum: Mission to the Philippines’ UN Doc A/HRC/8/3/Add.2.

38 ‘World Report 2016’ (Human Rights Watch)

<www.hrw.org/world-report/2016/country-chapters/philippines#b7bce0> accessed on 5 February 2020.

39 ‘World Report 2017’; ‘World Report 2018: Philippines’; ‘World Report 2019’ (n 7). 40 Gallagher, Raffle and Maulana (n 9).

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14 industry he may be deemed as the instigator and primary perpetrator.41 Duterte’s rhetoric can

be seen as the root cause of the war on drugs policy and its alleged EJK’s. This is evidenced by the fact that the Philippines’ police itself has reported that thousands of persons have died due to the anti-drug operations that were initiated by the campaign.42 It must be noted that this

assumption is only based on Duterte’s public statements and the report that the Philippines’ police has issued, as no internal communication is available for examination. Nonetheless, the fact that Duterte can speak so casually about EJK’s in public, leaves not much to the imagination as to what he orders his subordinates behind closed doors. It is therefore assumed that there exists a causal relation between Duterte’s anti-drug campaign and the EJK’s.43

It bears acknowledgement that it is debatable whether Duterte or another perpetrator should be prosecuted. Although this question lies at the heart of the matter, it goes beyond this thesis’ purpose, which is to find an appropriate jurisdiction for prosecution of the EJK’s. To this extent, it should at least be presumed that (an) appropriate perpetrator(s) will be prosecuted for the EJK’s, to prevent them from going unpunished. To satisfy the debate for now, the arguments presented in this thesis will rely on a prima facie assumption that Duterte is the most appropriate defendant for international criminal prosecution of the EJK’s. To find an appropriate jurisdiction for the prosecution, this thesis will present two alternative jurisdictions within the field of ICL, being ICC jurisdiction and universal jurisdiction. But before going into a comprehensive analysis of the two alternatives, it is important to define the normative framework on the basis of which these alternatives are assessed.

41 ‘License to Kill’ (Human Rights Watch)

<www.hrw.org/sites/default/files/report_pdf/philippines0317_insert.pdf> accessed 28 on May 2020.

42 Dela Rosa (n 27).

43 Jesus Joel Mari D Arzaga, ‘Extrajudicial Killings Under the Duterte Administration: A Crime Against

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3. Normative Framework: State Sovereignty in ICL

3.1 The Tension Between State Sovereignty and Extraterritorial Jurisdiction Where international law used to be primarily focused on the relations of states among themselves, ICL is now shifting towards a focus on individual criminal responsibility for atrocity crimes. This shift raises multiple normative questions. One of the most prominent issues within the field of ICL is the tension between state sovereignty and extraterritorial jurisdiction, specifically if state sovereignty can be legitimately overridden by foreign jurisdictions for the purpose of criminal proceedings, and if so, to what degree.44 As it goes

beyond the scope of this thesis to go into detail about the extensive doctrine of extraterritorial jurisdictions, it suffices to concisely note that ICC jurisdiction and universal jurisdiction are considered to be extraterritorial jurisdictions.45

The question to be answered in this thesis, being whether ICC jurisdiction or universal jurisdiction should be the ground to hear the Philippines case, resides within this normative framework of the notion of state sovereignty in ICL. In principle, the Philippines as a sovereign state does not have to tolerate any extraterritorial jurisdiction over the alleged EJK’s, given that they are committed within its territory and by its nationals. To prevent their impunity however, it is paramount that the EJK’s can be legitimately prosecuted by means of extraterritorial jurisdictions such as ICC or universal jurisdiction. The notion of state sovereignty will therefore be the guiding principle in the evaluation of which alternative jurisdiction should apply for prosecution of the Philippines case. But before going into the analysis of which jurisdiction should prevail, it is relevant to briefly explore how the notion of state sovereignty has been evaluated in the normative field of ICL.

3.2 From the Westphalian Conception Towards a Diminished Conception of State Sovereignty

Sovereignty is traditionally defined as the state’s legitimate supreme authority over all things and persons within its territory.46 The authority is legitimate when it is grounded in law or

consent, and when the individuals subjected to that authority generally endorse it. As such,

44 May and Hoskins (n 11).

45 Alejandro Chehtman, The Philosophical Foundations of Extraterritorial Punishment (OUP 2010) 114. 46 Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 EJIL 599, 599.

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16 the notion of sovereignty lends legitimacy to state power.47 Legal theorists refer to this

traditional understanding of state sovereignty as “Westphalian sovereignty” as it can be traced back to the Peace of Westphalia. In this treaty-series, the holy and exclusive power of the emperor was transferred to many different lords who then held their own local authority over their territory. Through time, this developed into the notion of absolute right of the sovereign.48 This conception of sovereignty has been the cornerstone of international law: as

there is no higher authority than the sovereign state, no norm of international law is valid unless the sovereign state has consented to it.49

However, the field of international law has changed drastically over time. This can be attributed to, for example, the Nuremberg trials, the establishment of major international institutions like the UN and the wealth of international human rights treaties. Due to these developments, scholars are increasingly arguing that Westphalian sovereignty is an outdated concept. While the Westphalian sovereignty notion has been used as a foundational concept in defining and governing relations of states among themselves, scholars argue that the field of international law has transformed in such a way that traditional concepts of exclusive state sovereignty are neither morally acceptable nor descriptively suitable anymore.50

Nowadays, most scholars agree that some level of cross-border intervention is permitted for grave violations of human rights.51 Despite the fact that they preserve different

conceptions of state sovereignty, most of them seem to agree that international criminal prosecution for grave human rights violations may be carried out against the consent of state authority, precisely because that state has willingly forfeited its sovereignty by failing to protect its citizens. It is therefore argued that the conception of state sovereignty in ICL has shifted, from a Westphalian notion of exclusive state sovereignty towards a notion of

diminished state sovereignty that is dependent on the ability of states to protect the security of and prevent harm to its citizens.

47 Philpott (n 10).

48 John H Jackson, ‘Sovereignty-Modern: A New Approach to an Outdated Concept’ (2003) 97 AJIL 782, 768. 49 ibid 782.

50 Kirsten Hessler, ‘State Sovereignty as an Obstacle to International Criminal Law’ in Larry May and Zachary

Hoskins, International Criminal Law and Philosophy (CUP 2010) 45.

51 W Michael Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 AJIL

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17 This shift in conception will be discussed in detail in Chapter 5. For now, it suffices to note that the normative evaluation of state sovereignty is nowadays mostly deemed dependent on the ability of states to protect the security of and prevent harm to its citizens.52

3.3 The Significance of State Sovereignty for ICL

Although normative theories for diminished state sovereignty are extensively explored, the significance of exclusive state sovereignty for ICL is also recognized by some scholars (although to a much lesser extent). They submit that diminished state sovereignty can in fact give rise to international crimes.53 Sovereignty, when properly exercised, is in the first place

the only protector from international crimes.54 When the government is weak or absent, there

is no control at all over human rights violations.55 As such, the sovereign state has a

protective role over international crimes that cannot be denied.56

Furthermore, it should be acknowledged that accessing international human rights conventions that prohibit international crimes is an exercise of state sovereignty. Similarly, the creation of the ICC was made possible by virtue of state sovereignty as well.57 Although

criminal jurisdiction was considered a purely domestic affair in the Westphalian notion of sovereignty,58 with states originally being quite reluctant to the internationalization of

criminal proceedings,59 it was ultimately an act of sovereignty that conferred a part of that

criminal jurisdiction by establishing the ICC.60

How state sovereignty relates to the ICC will be analyzed in depth in Chapter 4. For now, it suffices to conclude that the relationship between ICL and state sovereignty is a

52 Hessler (n 50) 40-43.

53 Karima Bennoune, ‘Sovereignty vs. Suffering? Re-examining Sovereignty and Human Rights through the

Lens of Iraq’ (2002) 13 EJIL 243, 244.

54 Norman Geras, Crimes Against Humanity: Birth of a Concept (Manchester UP 2011) 78.

55 Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the

Rule of Law (OUP 2003) 44-51.

56 Robert Jennings, ‘Sovereignty and International Law’ in Gerard Kreijen and others (eds.), State, Sovereignty

and International Governance (OUP 2002) 30-31.

57 Robert Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’ (2006) 16 EJIL 979, 985. 58 Ian Brownlie, Principles of Public International Law (6th edn, OUP 2003) 287.

59 Antonio Cassese, ‘On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of

International Humanitarian Law’ (1998) 9 EJIL 2, 11.

60 Manuela Melandri, ‘The Relationship between State Sovereignty and the Enforcement of Criminal Law under

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18 complex one. On the one hand, state sovereignty can pose as an obstacle for the effective administration of ICL, but on the other, ICL would not exist without acts of sovereignty. The question whether ICC jurisdiction or universal jurisdiction should apply to the Philippines case reveals this complexity and tension between state sovereignty and ICL once again, and its answer should therefore be evaluated on the basis of this normative framework.

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19

4. ICC Jurisdiction in Context of Effective Withdrawal

4.1 The Philippines Case: Preliminary Examinations and Withdrawal

On 8 February 2018, the OTP announced its preliminary examination into the Philippines and specifically into the reported incidents of EJK’s.61 According to the OTP, this preliminary

assessment is specifically targeted to determine if there is reasonable basis to believe that the EJK’s fall within the subject-matter jurisdiction of the ICC.62 If it finds that the EJK’s amount

to “core” crimes as defined in the RS, 63 it will bring the case for pre-trial. Although currently,

the Philippines case is still in this preliminary examination stage.

After the opening of preliminary examination, the Philippines gave a formal notification of its withdrawal from the ICC.64 Seemingly, Duterte’s motive for withdrawal is

to circumvent prosecution of the alleged EJK’s by excluding ICC jurisdiction over the Philippines. On 17 March 2019 the withdrawal of the Philippines became effective.65 With this,

the Philippines is arguably no longer within the jurisdiction of the ICC. However, the ICC has publicly stated it assumes that the withdrawal will not have any impact on ICC jurisdiction.66

Duterte’s perspective on ICC jurisdiction after withdrawal appears to be in direct contradiction with the perspective of the ICC, which leaves a lot of questions about the existence of ICC jurisdiction over the Philippines.

4.2 The Burundi Case: A Guiding Decision

Remarkably, the Philippines was not the first state to effectively withdraw from the ICC while its case was pending before the Court. Burundi had been the subject of the OTP’s preliminary examination into the increasing violence in the country,67 and as a result Burundi

61 Bensouda (n 12).

62 OTP, ‘Report on Preliminary Examination Activities’ (ICC, 5 December 2018)

<www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf> accessed on 10 March 2020 [57].

63 Art 5 RS.

64 Communication of the Secretary-General (n 13). 65 Art 127(1) RS.

66 ‘ICC Statement on The Philippines’ notice of withdrawal: State participation in Rome Statute system essential

to international rule of law’, (ICC, 20 March 2018) <www.icc-cpi.int/Pages/item.aspx?name=pr1371> accessed on 26 February 2020.

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20 announced their withdrawal.68 Also in this case, the OTP announced that the withdrawal

would not affect the investigation, at least for the one-year period until the withdrawal became effective.69 The withdrawal became effective on 27 October 2015, making Burundi

the first state to leave the ICC.70 To this extent, the Burundi case bears a lot of similarities

with the Philippines case. The PTC’s decision on ICC jurisdiction over Burundi can therefore offer guidance in the proper assessment of ICC jurisdiction over the Philippines, since this decision has been the only instance that the ICC has commented on the legal consequences of state withdrawal on ICC jurisdiction.

In the decision, the PTC argued that by ratifying the RS the withdrawing state accepted jurisdiction for the period of entry into force until effective withdrawal. The ICC retains its jurisdiction over any events falling within this period.71 The PTC reasoned that if a

preliminary examination is authorized before the withdrawal becomes effective, the investigation has officially commenced prior to the date on which the withdrawal became effective, so that the ICC retains its jurisdiction over the withdrawing state.72 This is also in

accordance with the wording of Article 127(2) RS on withdrawal. As such, only two days before the withdrawal of Burundi became effective, the PTC authorized the investigation of the OTP into the situation of Burundi on 25 October 2017 and ICC jurisdiction was

confirmed.

The critical difference with the Philippines case however, lies exactly within those two days. As known, the Philippines has been effectively withdrawn from the ICC since 17 March 2019. To this day, the OTP’s preliminary examination has not been brought before the PTC. So, where the OTP’s preliminary examination into Burundi was authorized by the PTC

before its withdrawal became effective, the PTC has not yet authorized this case by

confirming jurisdiction over the already effectively withdrawn Philippines. To understand why this difference is of such critical importance, it is relevant to zoom in on the preliminary examination phase and how it relates to the authorization procedure.

68 Communication of the Secretary-General, ‘Burundi: Withdrawal’ (2016) UN Doc

C.N.805.2016.TREATIES-XVIII.10.

69 OTP, ‘Report on Preliminary Examination Activities 2016’ (ICC, 14 November 2016)

<www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf> accessed 26 February 2020 [60].

70 Manisuli Ssenyonjo, ‘State Withdrawal Notifications from the Rome Statute of the International Criminal

Court: South Africa, Burundi and the Gambia’ (2018) 29 Criminal Law Forum 65.

71 Burundi (n 15) [24]. 72 ibid [26].

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21 4.3 Preliminary Examinations and Authorization by the PTC

Preliminary examinations are the activities carried out by the OTP to determine whether a situation brought to its attention meets the legal criteria required by the RS to establish a reasonable basis to proceed an investigation by the ICC. The OTP uses its discretion to decide whether or not to open a preliminary examination.73 Following Article 13 RS,

preliminary examinations can be triggered in three different ways. Either a state party to the RS can refer a situation,74 or a situation is referred by the UN Security Council,75 or the OTP

has initiated an investigation itself by exercising its proprio motu authority.76 Since the

preliminary examination into the Philippines was initiated proprio motu, the focus hereafter will exclusively be on this trigger mechanism.

The proprio motu power authorizes the OTP to take action independently, without the need of authorization or referral by any political actor. As a result, the OTP has the

independent power to start an investigation whenever they wish to do so.77 However, this

discretional power is not limitless. The RS does require the OTP to obtain judicial authorization of the investigation by the PTC.78 The OTP cannot officially commence an

investigation without this authorization. In contrast, such authorization is not required in case of a state party or Security Council referral.79

In order for the PTC to give its authorization, it has to meet the criteria of “a

reasonable basis to proceed” and more importantly in the context of this thesis “that the case appears to fall within the jurisdiction of the Court”.80 This second criterion will prove to be

the most challenging once the OTP will request authorization of the Philippines case. This is not surprising, since most pre-trial motions relate to jurisdictional issues. Such motions mostly challenge the ICC’s subject-matter jurisdiction (the act does not constitute a crime

73 Pavel Caban, ‘Preliminary Examinations by the Office of the Prosecutor of the International Criminal Court’

(2011) 2 Czech Yearbook of Public & Private International Law 199, 200.

74 Art 13(a) RS. 75 Art 13(b) RS.

76 Art 13(c) RS art 15 RS.

77 Kaveri Valid, ‘Discretion Operationalized through Law: Proprio Motu Decision-Making at the International

Criminal Court’ (2015) 25 Florida Journal of International Law 359, 360.

78 Art 15(3) RS.

79 David Stoelting, ‘ICC Pretrial Proceedings: Avoiding Gridlock’ (2003) 9 ILSA Journal of International &

Comparative Law 413, 417.

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22 within the RS), personal jurisdiction (the accused is not a state party national) or territorial jurisdiction (the crime did not take place on the territory of the state party).81 Apart from the

Burundi case, it has never occurred that the ICC’s temporal jurisdiction (the act falls outside

the timeframe of entry into force of the RS) was challenged before the PTC. But since it can be argued that the ICC’s temporal jurisdiction over the Philippines has ended on the day that its withdrawal became effective, the main pre-trial issue in the Philippines’ authorization procedure will most likely regard the ICC’s temporal jurisdiction.

The Philippines has been effectively withdrawn from the ICC for over a year now, but to this day the OTP has not requested authorization by the PTC. Whether the PTC should, given the context of this effective withdrawal, still authorize is dependent on the confirmation of ICC jurisdiction over the Philippines. Proponents of the argument that ICC jurisdiction can be confirmed will argue that the Burundi case should be interpreted to mean that, although the ICC’s temporal jurisdiction has ended on the day of effective withdrawal, the exercise of jurisdiction over the crimes committed up to and including the day of the effective

withdrawal are not affected.82 They argue, in other words, that the EJK’s that occurred before

the effective withdrawal are not affected by the withdrawal, thus the ICC can still exercise its jurisdiction over those EJK’s.

This argument must be refuted from the outset, by referring to the bipartite structure of ICC jurisdiction. The bipartite structure distinguishes between mere existence of ICC jurisdiction and ability to exercise it. The existing “types” of jurisdiction are codified in the preconditions of Article 12 RS, one of which is temporal jurisdiction. Existing jurisdiction is also named “dormant” jurisdiction.83 The ability to exercise jurisdiction entails the previously

mentioned trigger mechanisms of Article 13 RS, one of which is the proprio motu authority. This bipartite structure of ICC jurisdiction means in effect that as long as the OTP has not requested authorization by the PTC, ICC jurisdiction remains dormant so that it cannot be exercised.84 A meticulous interpretation of Burundi case confirms this as well.85 In other

81 Stoelting (n 79). 82 Burundi (n 15) [24].

83 Hector Olasolo, The Triggering Procedure of the International Criminal Court (Martinus Nijhoff Publishers

2005) 39.

84 Sergey Vasiliev, ‘Piercing the Withdrawal Puzzle: May the ICC still open an investigation in Burundi? (Part

2)’ (OpinioJuris, 6 November 2017) <http://opiniojuris.org/2017/11/06/piecing-the-withdrawal-puzzle-may-the-icc-still-open-an-investigation-in-burundi-part-1/> accessed on 29 May 2020.

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23 words, mere existence of ICC jurisdiction over the EJK’s committed during the time that the Philippines was still state party, does in principle not give license to the ICC to actually

exercise it.

To activate dormant ICC jurisdiction over the Philippines, the OTP should, before anything, request authorization by the PTC. But to determine whether the PTC can still authorize, this thesis presents two decisive factors. The first factor is whether the

interpretation of the textual elements of Article 127(2) RS lead to the conclusion that the ICC has jurisdiction. The second factor is whether the interpretation of the notion of state

sovereignty in light of effective withdrawal leads to the conclusion that the ICC has jurisdiction. These two factors will be discussed in the two paragraphs below.

4.4 Confirmation of ICC Jurisdiction According to the Textual Elements of Article 127(2) RS

Before going into an analysis of the specific textual elements of the withdrawal provision, it is relevant to place the provision within the wider context of international law. All

international treaties, including the RS, find their common fundamental ground in the principle of good faith. Good faith applies not only to the creation of international treaty obligations, but also to withdrawal from them.86 The ICJ has held that good faith in itself is

not an obligation if no obligation otherwise exists,87 and that trust in what states mutually

promised is what is inherent to international obligations in the end.88 In other words, in

absence of a mutually promised obligation, there is no obligation at all, because trust requires mutual promise for an obligation to arise. Moreover, the ICJ determined in the Nicaragua case that good faith requires that treaty-withdrawals specifically should not be an unilateral act and should therefore be strictly construed.89 Conversely, it follows that states do not

breach the principle of good faith by withdrawing from a treaty if that treaty itself provides a right to withdraw.90 As such, the default withdrawal rule in international law is that when a

86 Laurence R Helfer, ‘Existing Custom: Analogies to Treaty Withdrawals’ (2010) 21 Duke Journal of

Comparative & international Law 65, 67.

87 Border and Transborder Armed Actions (Nicaragua v. Honduras) Judgment (1988) ICJ no 69 [94]. 88 Nuclear Tests (New Zealand v. France) Judgment (1974) ICJ no 457 [49].

89 Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) Judgment (1984)

ICJ no 70 [63].

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24 treaty is silent about withdrawal, states may not withdraw from it. The right to withdraw therefore only exists if and only to the extent that states specifically intended to create it.91

This understanding is codified in Articles 54 and 56 VCLT. It is important to keep this broader context in mind during the following analysis. Now that state parties agreed upon the creation of a withdrawal provision and its boundaries, it is provided by the VCLT, the

principle of good faith and other considerations of international law that the textual elements of Article 127(2) RS should be decisive in determining whether ICC jurisdiction can be confirmed.

The first phrase of Article 127(2) RS provides that ‘withdrawal shall not affect any […] criminal investigations and proceedings […] which were commenced prior to the date on which the withdrawal became effective’. When this phrase is read in conjunction with the guidelines of the Burundi case, it quickly leads to the rather circular conclusion that the Philippines case cannot be authorized by the PTC, because the investigation has not

“commenced” within the wording of Article 127(2) RS due to the fact that the investigation has not been authorized before effective withdrawal.

However, the second phrase of Article 127(2) provides that withdrawal shall also not ‘prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective’. It follows from this phrase that if the preliminary examinations into the Philippines can qualify as “any matter which was already under consideration by the Court”, the ICC is still able to consider Philippines case. To examine this, it is relevant to make a distinction between two criteria, being (1) do preliminary examinations qualify as a “matter”, and (2) does the OTP qualify as “the Court”?92 These criteria will be examined in more detail below.

91 ibid 6.

92 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 on 2 March 2020.

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25

4.4.1 Preliminary Examinations: A “Matter”?

From the outset it must be noted that the “matter” criterion is not defined nor used anywhere else in the RS, so its meaning remains unclarified.93 There are different perspectives on the

scope of a “matter” before the ICC, particularly in relation to preliminary examinations. From an extensive interpretation of the criterion, “any matter” should be considered as “under consideration by the Court” when the OTP has commenced a preliminary

examination.94 One might argue that the phrasing of the first part of Article 127(2) RS

regarding “investigations and proceeding” is suggesting that the second phrase regarding the consideration of “any matter” should have a broader meaning, hence the OTP’s preliminary examination.95 This would make sense if one considers that the purpose of Article 127(2) RS

is to prevent state parties from avoiding scrutiny of the ICC by withdrawing.96

However, there are also a number of arguments that support a restrictive interpretation of the “matter” criterion. Apart from the provision that provides the OTP with the proprio

motu authority,97 preliminary examinations are not mentioned in the RS. There is no legal

provision that gives the preliminary phase an official legal status within the ICC. It is

therefore a rather informal phase.98 Since there are no specific legal requirements,99 the OTP

is not required to publicly announce that it has started a preliminary examination (although it ordinarily does so). In case a preliminary examination is not publicly announced, neither the state under examination, nor the ICC itself can be aware of this examination. How could one

93 Alex Whiting, ‘If Burundi Leaves the Int’l Criminal Court, Can the Court Still Investigate Past Crimes

There?’ (Just Security, 12 October 2016) <www.justsecurity.org/33501/burundi-leaves-icc-international-criminal-court-investigate-crimes-there/> accessed on 2 March 2020.

94 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2016) 1536. 95 Whiting (n 93).

96 Julie Janssens, ‘Burundi: ICC withdrawal will not derail wheels of justice’ (Amnesty International, 26

October 2017) <https://hrij.amnesty.nl/burundi-icc-withdrawal/> accessed on 2 March 2020.

97 Art 5(6) RS.

98 Dov Jacobs, ‘South Africa (and Burundi) to withdraw from the ICC?’ (Spreading the Jam: International Law,

International Criminal Law, Human Rights and Transitional Justice, 21 October 2016)

<https://dovjacobs.com/2016/10/21/south-africa-and-burundi-to-withdraw-from-the-icc/> accessed on 2 March 2020.

99 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) <https://dovjacobs.com/2017/10/28/burundi-withdraws-from-the-icc-what-next-for-a-possible-investigation> accessed on 2 March 2020.

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26 reasonably speak of a matter under consideration by the Court, if even the Court itself is not informed of that matter?100

A restrictive interpretation is also supported by the division of the preliminary

examination in four phases. The preliminary examination formally commences in Phase 2, in which “open source information” and other information is examined by the OTP.101 This then

implies that as soon as an OTP investigator reads an online report about a certain situation, the only act of looking at that information already triggers the formal commencement of the preliminary examination, which in turn implies that in perspective of an extensive

interpretation of the “matter” criterion, the ICC retains its jurisdiction.102 It might be too far

of a stretch to interpret the “matter” criterion so extensively that it includes this

commencement of a formal preliminary examination which is already triggered by the simple act of downloading a publicly published report.103

4.4.2 The OTP: “the Court”?

The question to be answered here is whether a matter is under consideration “by the Court” by virtue of the OTP considering that matter. To answer this question, one must first ask if the OTP can qualify as “the Court”.

From an extensive perspective on the criterion, it can be argued that when the RS refers to “the Court”, it refers to the ICC in its entirety, so both the judiciary and the OTP.104

And indeed, according to Article 34 RS “the Court” is composed of four organs, being the Presidency, the Chambers, the OTP and the Registry. However, the assumption that every mention of “the Court” in the RS therefore includes the OTP is not entirely correct. In fact, the RS often uses “the Court” much more restrictively by explicitly distinguishing from “the Prosecutor”, hence meaning only the judiciary and not the OTP.105 The point to be made here

100 Whiting (n 93).

101 OTP, ‘Policy Paper on Preliminary Examinations’ (ICC, November 2013)

<www.icc-cpi.int/iccdocs/otp/otp-policy_paper_preliminary_examinations_2013-eng.pdf> accessed on 24 February 2020 [80].

102 Jacobs (n 98).

103 Kevin Jon 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 on 5 March 2020.

104 Whiting (n 93).

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27 is that it cannot be simply assumed that the reference to “the Court” in Article 127(2) RS includes the OTP as well.106

The wording of Article 95 RS is of particular interest in this regard. It reads that ‘where there is an admissibility challenge under consideration by the Court […] the requested State may postpone the execution of a request under this part pending a determination by the

Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection

of such evidence’. In the context of this distinction between “the Court” and “the Prosecutor”, “under consideration by the Court” clearly means under consideration by the judiciary. A consistent interpretation of the RS therefore suggests that it should mean the same in Article 127(2) RS.107

This also makes sense in light of the extensive discretionary power of the OTP to

proprio motu initiate a preliminary examination whenever they wish to do so, and the

fundamental need to subject this discretion to checks and balances by requiring authorization by the PTC.108 This authorization is the ultimate illustration of the relationship between the

OTP and “the Court”, which is that the OTP is always under scrutiny of the judiciary. Hence, it might be too far of a stretch to interpret the “Court” criterion so extensively that it includes the OTP, since a cohesive reading of the RS suggests that the OTP is a distinct organ of the Court.

4.4.3 Conclusion

To summarize, it is submitted that the preliminary examination into the Philippines does not qualify as a “commenced investigation”, because it has not been authorized by the PTC before effective withdrawal. It is also submitted that the preliminary examination does not qualify as a “matter which was already under consideration by the Court” because (1) it might be too far of a stretch to interpret the “matter” criterion so extensively that it includes the rather unofficial preliminary examination phase and (2) it might be too far of a stretch to interpret the “Court” criterion so extensively that it includes the OTP. This leads to the conclusion that according to the boundaries set by the textual elements of Article 127(2) RS, the PTC cannot authorize as it cannot confirm jurisdiction over the Philippines case.

106 Heller (n 103). 107 ibid.

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28 4.5 Confirmation of ICC Jurisdiction According to The Notion of State Sovereignty To assess whether ICC jurisdiction exists in light of the notion of state sovereignty, it is relevant to first explore the significance of state sovereignty for the establishment of the ICC. The ICC was officially established on 1 July 2002 with the entry into force of the RS.109 The

RS is a multilateral agreement between sovereign states that voluntarily accept ICC

jurisdiction over core crimes committed within their territory. The RS is therefore by nature a treaty.110 The establishment of the ICC by the consent of state parties means that the ICC can

legitimately exercise jurisdiction over their territory and nationals on their behalf, with the safeguard of sovereignty-protecting conditions of, for example, complementarity.111

Non-state parties do not have their sovereignty limited in any way,112 and rightfully so, since

non-party states did not consent to the exercise of ICC jurisdiction over their territory.

If state sovereignty demands that a state is not subject to any external authority if it has not voluntarily consented to that authority,113 it follows that restrictions upon the

independence of states and their exercise of autonomous acts may not be presumed.114

However, although states are free to exercise their sovereign rights, they may not violate any international obligations deriving from treaty law in doing so.115 In other words, states are

free to conduct any legal actions without interference of external authority, unless they bound themselves to an international treaty that restricts the freedom to exercise such actions.116 In

this perspective, withdrawal from the ICC can be considered as an act of state sovereignty, so that any restrictions upon this sovereign act cannot be accepted. The fact that the RS does not include a provision that prohibits states from withdrawing, instead even provides a ground to

109 ‘Joining the International Criminal Court: Why does it matter?’ (ICC)

<www.icc-cpi.int/Publications/Joining-Rome-Statute-Matters.pdf> accessed on 4 March 2020.

110 Melandri (n 60) 536.

111 Usman Suleiman Jahun, ‘Critical Analysis of the Relationship between Sovereignty and the International

Criminal Court in Fostering International Peace and Security’ (2017) 7 International Journal of Humanities and Social Science 139, 141.

112 Cryer (n 57) 986.

113 James R Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012) 447. 114 S.S. Lotus, France v. Turkey, Judgment (1927) ICJ no 10 [44]

115 Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Judgment (1986)

ICJ no 70 [131].

116 Adel Maged, ‘Withdrawal of Referrals - A Serious Challenge to the Function of the ICC’ (2006) 6

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29 withdraw, further substantiates the premise that sovereign states in principle do not have to tolerate any restrictions on withdrawal.117 So, what exactly are the implications of withdrawal

in light of this state sovereignty notion for ICC jurisdiction?

In general, the entry into force of the RS on 1 July 2002 marks the starting point of ICC jurisdiction over state parties. ICC jurisdiction is non-retroactive. This means that the ICC cannot investigate any events that took place prior to 1 July 2002.118 For states that

became state party after this date, the ICC can only exercise jurisdiction over events that occurred after the RS entered into force for that particular state.119 As such, the earliest date

from which the ICC can have jurisdiction is 1 July 2002 for states that were already party to the RS, or starting from the date that the RS entered into force for a state that became party afterwards.120 This is known as the ICC’s temporal jurisdiction.121 The establishment of ICC

jurisdiction can be considered as an act of sovereignty: states consented to the entry into force of the RS and thereby consented to ICC jurisdiction starting from that date. As states did not consent to jurisdiction prior to that date, the ICC does not have jurisdiction over the events that happened before. Considering that the RS is designed as a treaty that requires consent of sovereign states as a constitutive element,122 it can be drawn from analogy that a withdrawing

state does no longer consent to jurisdiction after the date of effective withdrawal. By

explicitly allowing states to withdraw, the ICC reinforces that it can exercise jurisdiction for as long as states hand over their sovereign powers by being party to the RS. But when states decide to retake that power by withdrawing, the ICC acknowledges that its jurisdiction no longer exists.

What is striking from this analysis, is that significant value appears to be attached to state sovereignty in an absolute sense. This seems to be in conformity with Westphalian state sovereignty. It can therefore be argued that the ICC reinforces the Westphalian exclusive state sovereignty conception.123 Critics might argue that seems inconsequent, considering that

117 See [4.4].

118 ‘Joining the International Criminal Court: Why does it matter?’ (n 109). 119 Art 11(2) RS.

120 Art 24 RS.

121 Alexander Wills, ‘Old Crimes, New States and the Temporal Jurisdiction of the International Criminal Court’

(2014) 14 Journal of International Criminal Justice 407, 409.

122 This becomes evident from the consideration and art 9.1 VCLT.

123 Daniel G Partan and Predrag Rogig, ‘Sovereignty and International Criminal Justice’ (2003) Revista

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30 the object and purpose of the ICC, which is the protection of individuals from atrocity

crimes,124 suggests to be in conformity with a diminished state sovereignty conception.125

Moreover, by pointing to the object and purpose principle of Article 19 VCLT, they might argue that jurisdiction-limiting actions such as withdrawal violate the object and purpose of the RS.126 To counter this argument it is must be emphasized that, although it is true that it

can be used to prevent states from making reservations that circumvent their jurisdictional obligations arising from the treaty, the objects and purpose doctrine does not limit the freedom to withdraw from a treaty in its entirety. It only serves to prevent states from unilaterally altering the core terms of a multilateral treaty.127 The fact that the RS itself

provides the ability to withdraw confirms all the more that withdrawal does not violate its object and purpose. As such, the objects and purpose doctrine cannot be used to argue that the ICC reinforces a diminished state sovereignty conception so that the jurisdiction-limiting action of withdrawal should be denied.

It is therefore submitted that the treaty-based, consent-requiring, exclusive state sovereignty-reinforcing RS on which ICC jurisdiction is built, ultimately evidences a Westphalian perspective on state sovereignty. Given the fact that the Philippines has effectively withdrawn from the ICC and thereby ended its consent to ICC jurisdiction, this exclusive state sovereignty conception as the framework for the boundaries of ICC

jurisdiction prevents the PTC from authorizing without manifestly overstepping these jurisdictional boundaries. This leads to the conclusion that according to the notion of state sovereignty, ICC jurisdiction over the Philippines cannot be confirmed.

4.6 Conclusion

This chapter made the question whether the PTC should still confirm ICC jurisdiction over the already effectively withdrawn Philippines dependent on two decisive factors, being the textual elements of Article 127(2) RS and the notion of state sovereignty. Given the fact that

124 Kirsten Ainley, ‘The Responsibility to Protect and the International Criminal Court: counteracting the crisis’

(2015) 91 International Affairs 37, 37.

125 See [3.2].

126 UNCHR, ‘Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the

Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant’ UN Doc A/50/40 (4 November 1994) [11].

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