Lawyer questions ICC’s jurisdiction

The International Criminal Court (ICC) began examining alleged crimes in the Philippines before the country withdrew from the Rome Statute, but authorized a formal investigation more than two years later — a gap an international criminal lawyer says raises questions about whether the tribunal had validly preserved its jurisdiction.

In a 2 November commentary, Michael G. Karnavas challenged the ICC’s interpretation of Article 127(2) of the Rome Statute, which allows the tribunal to continue considering matters already under consideration when a state’s withdrawal takes effect.

“The central dispute is whether the preliminary examination of the situation in the Philippines, publicly announced by the Office of the Prosecutor in February 2018, was sufficient to bring the matter within that provision,” he wrote.

The ICC opened its preliminary examination of the Philippine situation on 8 February 2018, while the country was still a state party. Its withdrawal took effect on 17 March 2019. The prosecutor requested authorization for a formal investigation on 24 May 2021, which the ICC Pre-Trial Chamber granted on 15 September 2021.

The ICC, however, maintained that the preliminary examination was an official prosecutorial activity under the Rome Statute and concerned alleged crimes committed while the Philippines was a state party. It argues that the subsequent authorization of a formal investigation continued a matter already preserved under Article 127(2), rather than creating a new one.

Karnavas acknowledged that position but said the treaty distinguishes between a preliminary examination, which assesses information to determine whether there is a reasonable basis to proceed, and a formal investigation, which requires judicial authorization when the prosecutor initiates it on their own initiative.

“This requirement is not a procedural formality. It provides an independent judicial check on the Prosecutor’s decision to initiate an investigation, ensuring that the statutory threshold has been met and that the matter falls within the ICC’s jurisdiction before the ICC’s investigative machinery is set in motion.”

For Karnavas, the fact that authorization came more than two years after the Philippines’ withdrawal raises questions about what must have occurred during the preliminary examination to preserve the court’s authority.

He also questioned how a state could determine whether activities within the prosecutor’s office had reached the point at which withdrawal would no longer affect the ICC’s authority.

“These are not merely technical questions. They concern the relationship among the Statute’s procedural stages and the point at which the ICC’s authority is preserved despite a State’s withdrawal,” he wrote.

On 22 April, the ICC Appeals Chamber upheld the tribunal’s jurisdiction in the case against former President Rodrigo Duterte. It ruled that the Philippine preliminary examination qualified as a matter already under consideration under Article 127(2), citing its initiation before withdrawal, its public announcement, procedural steps taken during the examination and the prosecutor’s subsequent request to open an investigation.

He acknowledged the concern that states could withdraw from the treaty after learning that the prosecutor was examining allegations against them, potentially undermining the ICC’s work. But he cautioned against allowing that concern to override the treaty’s wording.

“But a treaty’s purpose cannot replace its terms or collapse the distinctions the treaty itself draws,” he wrote.