Based on a holistic reading of the relevant provisions, as set out above, we consider that there is a distinction between the existence of jurisdiction and the Court’s ability to exercise the jurisdiction, and that the preconditions to the exercise of the Court’s jurisdiction set out in article 12 of the Statute must exist at the time that the exercise of the jurisdiction is triggered pursuant to article 13 of the Statute.
Dissenting Opinion of Judge Perrin de Brichambaut and Judge Lordkipanidze, para. 23.
In the past I have posted about former Philippine President Rodrigo Duterte, cautioning against making public pronouncements and statements that would assuredly be considered self-incriminating by the ICC. I’ve also stressed that he should not be prejudged; his case must be considered with full regard to the ICC framework and his fair trial / human rights.
Over the years Duterte has made damning and self-inflicting statements. Taken at face value they can and no doubt it will be argued that these are admissions and proof of guilt. There is also the reported body-count alleged to be directly linked to Duterte’s war on drugs.
As with any spoken words, to the extent Duterte’s comments are to be taken literally remains to be proven. Words can be taken out of context. They can be uttered as mere bluster and bravado. They can be extravagant exaggerations. They may serve as unvarnished and unfiltered warnings. They can also reflect facts.
Yet, to be clear and not prejudge, Duterte’s words, in and of themselves, do not prove the acts or establish guilt of the charges claimed as the basis for the arrest warrant. They may lend weight when considered with other evidence to establish reasonable grounds to issue arrest warrants. But in proving guilt, words alone or taken out of context or even considered with evidence, will not ipso so facto make the evidence solid, credible, reliable, relevant and of sufficient quality and probative value. The threshold for an arrest warrant is characteristically low. Conversely, the threshold for a conviction is appreciably high. Proof beyond a reasonable doubt – from whichever legal tradition the judges may come – amounts to near certainty. So, arrest warrant aside, it is anything but certain that the Office of the Prosecutor (OTP) will meet its burden of proof. Its record – as prosecution offices go among the various international criminal tribunals and courts – is dismal. Relying on the judges to give the OTP a pass in meeting their burden (as their expectations often seem when their evidence is questionable and inadequate), has proved a fool’s errand.
The next step is to see whether, based on the evidence, there are sufficient grounds to confirm the charges. But this presupposes that the ICC has jurisdiction. Before going through the confirmation process (a slightly higher threshold, but well below proof beyond reasonable doubt), the Pre-Trial Chamber must first determine whether the ICC even has jurisdiction in this case.
Simply, the answer is no. Back when all the preconditions for jurisdiction did exist, the ICC chose not to exercise it. Irrespective of any outcry, emotional outbursts, claims of lack of accountability and impunity-nurturing, the clock has run out. Not that a conviction is a forgone conclusion were the charges confirmed and the case proceed to trial (never a guarantee, no more so than defence counsel guaranteeing acquittals to clients), but in this instance, without having jurisdiction, the case cannot proceed. Jurisdiction has been forfeited.
While the crimes alleged in the arrest warrant may have been committed when the Philippines was a Member State of the ICC, the ICC had the ability to exercise jurisdiction up until the time the Philippines was no longer a Member State. By failing to seek permission from the Pre-Trial Chamber to launch an investigation while the Philippines was a Member State, the OTP surrendered its right to do so and the ICC has lost its jurisdiction. This may seem counterintuitive, even inconsistent with the ICC’s raison d’être. Perhaps so. But the starting and end point of jurisdictional analysis must be the Rome Statute – a treaty, and statutory framework of the ICC.
The States who either drafted or subsequently signed on to the Rome Statute were not giving this judicial institution, especially the OTP, carte blanche. They were not ceding part of their sovereignty and jurisdiction unconditionally. They did so only on condition that the judges and prosecutors and the ICC as a treaty-based court would strictly adhere to the terms of the treaty. Any State Party could withdraw for whatever reason at whatever time of its choosing. Notice of withdrawal triggers a one-year period during which the ICC maintains jurisdiction. In other words, where the OTP moves proprio moto to initiate an investigation, under the treaty/statutory provisions, it would have to seek permission from the Pre-Trial Chamber within that one-year post-withdrawal period.
Much like a statute of limitations, the time in which the ICC could exercise jurisdiction has lapsed. The OTP failed to trigger the ICC’s jurisdiction by requesting the Pre-Trial Chamber to authorize an investigation while the Philippines was still a State Party or during the one-year window. Irrespective of the nature of the charges, the personalities involved, the outcry of victims and civil society groups, the Pre-Trial Chamber must find that the ICC has no jurisdiction over Duterte and thus should be released from custody. End of story.
I see no reason at this time to go through the nuances in explaining the ICC’s lack of jurisdiction. This issue will be heavily researched and briefed. No doubt the Appeals Chamber will weigh in. For starters, however, the Pre-Trial Chamber would be well served to call for amici briefs. This is far too important and sensitive and relevant to the States Parties and to their understanding of their own jurisdictional exposure and limitations to be left to the parties to brief and the Pre-Trial Chamber and Appeals Chamber. The Chamber must seek input from interested States, experts, and concerned parties which may be impacted by the ultimate decision.
As a legal issue of first impression, it deserves to be properly vetted. And, might I add, safeguarded from being decided on the basis of expanding the contours of the ICC’s jurisdiction well beyond what the State Parties agreed to when signing the Rome Statute. This issue – straight forward as it may be – if not properly explored and credibly decided, will likely have significant negative consequences for the ICC’s legitimacy and sustainability.
States Parties out of concern of being beholden to a judicial institution with judges and a prosecution that encroaches on their sovereignty and jurisdiction not ceded to them, might also decide – as the Philippines and other former member states have – to opt out of the Rome Statute. In their Dissenting Opinion, Judge Perrin de Brichambaut and Judge Lordkipanidze, elegantly inform:
Bearing in mind that the Rome Statute is an international treaty and international criminal code at the same time, two concomitant interests may be discerned when a State withdraws from the Statute. Article 127 of the Statute guarantees to the State Parties a right to withdraw from the Statute. In this regard, we consider that it is a fundamental right of States to decide whether they want to be bound by a treaty or not. … Article 127(1) of the Statute stipulates that “[t]he withdrawal shall take effect one year after the date of receipt of the notification”. Therefore, the Prosecutor has to make all efforts to trigger the Court’s jurisdiction in a manner that would not infringe the right of a State to withdraw from the Statute. … The Statute thus gives the Court an opportunity to assert its jurisdiction. However, it also respects the States’ right to withdraw from the Statute and therefore provides for limitations to this power of the Court. Without such limitations, the Court’s jurisdiction would stretch to an extent that would defy the assurances and guarantees to the States embedded in the Statute. This could have negative repercussions for the entire Court’s system. (paras. 28,29)
Reading between the lines, it is not too alarmist to say the question of jurisdiction over the charges against Mr. Duterte is an existential crossroad for the ICC. The decision on which course to take could not be more fraught.
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