This post is authored by Tanay Khanna, III Year student at The West Bengal National University of Juridical Sciences, Kolkata
Introduction
The withdrawal of the Philippines from the Rome Statute (‘RS’) has sparked a widespread debate among scholars as to whether the International Criminal Court (‘ICC’) can still prosecute crimes committed by President Duterte. Some scholars have argued that allowing the court to exercise jurisdiction post-withdrawal (once the withdrawal has become effective) would vest the ICC with universal jurisdiction and, hence, should be avoided. The other side of scholars argues that the court should be allowed jurisdiction, pleading that a narrow interpretation of the RS should be avoided in light of the broader object and purpose of the Statute. Following this debate, with the aim of clearing the cloud of uncertainty, this post establishes that the ICC should have jurisdiction even after the withdrawal of the Philippines. The author argues the same on three bases. First, an expansive definition is permitted by the Vienna Convention on Law of Treaties (‘VCLT’). Second, on reading the RS in its entirety, the ICC can be vested with jurisdiction. Third, even otherwise, the ICC has an erga omnes obligation to end impunity against international crimes. It is to be noted at the outset that the author is not arguing to vest the ICC with universal jurisdiction. The argument is only to allow an expansive reading of the scope of jurisdiction to fit with the broader framework of the RS and a general understanding of international law in specific situations.
The following section briefly describes the situation in the Republic of the Philippines and thereafter develops an argument for the vesting of jurisdiction with the ICC.
The peculiar case of the Republic of Philippines
The case of the withdrawal of the Philippines presents a novel situation before the ICC. In this case, the President of the Philippines, Rodrigo Roa Duterte, was involved in a drug war. Noting the situation as ‘concerning’, Prosecutor Fatou Bensouda opened a preliminary examination (‘PE’). Soon after the opening of the PE, President Duterte announced the withdrawal of the Philippines under Article 127 of the Rome statute. It was not until the withdrawal had become effective that the Prosecutor filed a request for authorisation in front of the Pre-Trial Chamber. In response, President Duterte claimed that since the withdrawal had become effective, the Pre-Trial Chamber could not authorise the opening of an investigation by the Prosecutor, and hence, the ICC had no right to exercise jurisdiction. A lot of arguments were presented by the Prosecutor in his memo to justify the exercise of jurisdiction by the Pre-Trial Chamber. At the end of the proceedings of the appeal by the Philippines to the decision of the Pre-Trial Chamber, the majority decision upheld the jurisdiction of the ICC. However, it is important to note that the majority decision did not delve into the interplay between Article 127 of the RS and the effect of the withdrawal of the Philippines from the statute.
Thus, the majority decision missed an opportunity to critically analyse a very peculiar situation that had come before it in this case. In light of the same, drawing from the situation in the Philippines, the next section showcases how the ICC could exercise jurisdiction and how a judgment on the same could have set a good precedent for states in the future.
Expanding the jurisdiction of ICC: A need-based approach
The situation in the Philippines raises serious concerns regarding the interpretation and application of the withdrawal mechanism under the RS. The author submits that the interpretation accorded by the Office of the Prosecutor is correct as it fits with the general principles in international law as well as the objective of the RS.
The withdrawal of a state from the RS is governed by Article 127. The relevant part of Article 127 reads:
“Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, 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.”
It is to be noted that the latter part of Article 127 provides that the withdrawal of a state will not have any effect on a matter which is already under consideration by the court. The author argues that actions taken by the Prosecutor in the situation of the Philippines fit within this part of Article 127. The same is established first on the basis of interpretation in light of the VCLT and second on the basis of a holistic reading of the RS.
VCLT permits a broad interpretation of Article 127 of the Rome Statute
The first step in assessing the correct interpretation of any provision of the RS is to have recourse to its object and purpose. The object and purpose of the RS is to end impunity against international crimes. Furthermore, the ICC is the only court at the international level that has been established to prosecute crimes of the ‘most serious’ nature. Keeping this in view, if a state is permitted to withdraw from the RS on the basis of a semantic interpretation of Article 127 of the statute, it would go against its object and purpose. Furthermore, such an interpretation would also be against the principle of effectiveness (effet utile), i.e., the interpretation of a term should not render the object of a treaty ineffective.
Besides the object and purpose of the RS, such an interpretation would be in violation of the principle of ‘good faith’ and abu de droit or abuse of rights. This is because if a state is permitted to withdraw from the RS after committing serious international crimes, it would be an abuse of the withdrawal mechanism provided under Article 127 of the RS. Thus, it is evident that if we take into account the principles of treaty interpretation and other principles of international law, a restrictive interpretation of Article 127 should not be permitted as it would allow a state to get rid of its liability for committing international crimes. Even otherwise, the wording of the RS allows for such an expansive interpretation. This will be elaborated further in the next section of the blog.
The flexibility of an expansive interpretation under the Rome Statute
To begin with, special attention must be paid to Article 21(3) of the RS. It mentions:
“The application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”
It can be inferred that any interpretation that goes against internationally recognised human rights is prohibited by the RS. Thus, in situations like that of the Philippines, if a restrictive interpretation is made of Article 127, it would be strictly against Article 21(3) of the RS. This is owing to the fact that a state would have an option of violating internationally recognised human rights and then using the withdrawal mechanism to escape the scrutiny of the court. Additionally, it is submitted that even a strict interpretation of Article 127 of the RS would allow the ICC to exercise jurisdiction. This argument is based on the fact that the PE initiated by the Prosecutor is a ‘matter under consideration of Court’ as required by Article 127 to bind a state post its withdrawal.
The role of a PE is to collect information and reach a reasoned judgment to begin an investigation. While beginning a PE, the prosecutor needs to be satisfied that the ICC has prima facie jurisdiction and that the matter does not fall outside its jurisdiction. This provisionally confirms the jurisdiction of the ICC over a given situation. Furthermore, as the Prosecutor is an organ of the Court as per Article 34 of the Statute, a preliminary examination undertaken by it would be an exercise of the powers of the court only. It is, therefore, evident that PE is a step taken by an organ of the Court to ensure that the Court has provisional jurisdiction. This leads to a further inference that PE, being undertaken by an organ of a court, is a matter being considered by the court. Thus, even the reading of the RS reaffirms the interpretation posited by the author to vest jurisdiction with the ICC.
After showcasing that the ICC can have jurisdiction on the basis of VCLT and a comprehensive reading of the RS, the next section establishes that considering the international legal personality and erga omnes obligation of the ICC, an expansive definition of Article 127 should be permitted.
A Court with an erga omnes obligation
The objective behind the establishment of the ICC is to end impunity against international crimes. The Court has been vested with an international legal personality and has been brought into existence by more than 120 states. Owing to this international legal personality, the ICC has an erga omnes obligation to end impunity against international crimes. This allows the Court to even engage with states who are not a party to the RS. The erga omnes character of obligations is also a necessity since, in cases of collusion between the accused and the state government, the latter is unlikely to agree to the ICC exercising jurisdiction over its nationals.
Consecutively, the ICC has a duty to act in the fulfilment of the UN Charter principles. UN Charter mandates the ‘maintenance of international peace and security’. Therefore, in cases like that of the Philippines, if a restrictive interpretation is accorded to Article 127 of the RS, it would lead to a violation of the erga omnes obligation imposed on the ICC as well as in violation of the principles of the UN charter. Thus, a narrow interpretation of Article 127 of the RS should be avoided.
Conclusion
This post discussed the interpretation of Article 127 of the RS, as was in dispute in the Philippines' case. It argued that a broad interpretation should be given to Article 127 in light of the principles of treaty interpretation under VCLT and a reading of the relevant provisions of the RS. Thereafter, it showcased how, apart from a plain interpretation, a broad reading of Article 127 is also reaffirmed by the international status of the ICC and the erga omnes obligation on it to end impunity against international crimes.
The case of the Philippines has brought to light the existing loopholes in the RS. It is a tough rope to walk, as the ICC has to balance the object and purpose of the RS as well as the rights of the states to withdraw from a treaty while honouring their sovereignty. However, considering the precarious situation of setting a bad precedent, it is incumbent on the ICC to take active steps, devise novel ways which fit within the broader framework of the RS, and hold the state liable for its actions. Only then can the RS continue to be relevant.