International Criminal Court Confirms Resumption of Investigations in the Philippines

The Appeals Chamber of the International Criminal Court (ICC) announced its judgment today, upholding the decision made by ICC Pre-Trial Chamber I to grant authorization for the ICC Prosecutor to resume investigations into the situation in the Republic of the Philippines. The judgment was delivered in an open court session.

The Majority, consisting of Judges Piotr Hofmański, Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa, dismissed the Philippines’ initial grounds of appeal.

The Philippines argued that the Court lacked jurisdiction over the situation in the country due to its withdrawal from the Rome Statute.

However, the Majority concluded that this issue was not appropriately raised before the Pre-Trial Chamber and that the previous decision did not address the question of jurisdiction.

Judge Marc Perrin de Brichambaut, who presided over the Chamber during the appeal, and Judge Gocha Lordkipanidze expressed a dissenting opinion. They contended that the Court could not exercise jurisdiction over the Philippines’ situation since the country’s withdrawal from the Statute became effective prior to the Prosecutor’s request for authorization to initiate the investigation.

The Majority only considered the remaining grounds of appeal. They determined that the burden of proof rested with the Philippines, as the State seeking deferral, which claimed to be conducting relevant investigations or prosecutions.

The Majority further concluded that the Philippines failed to provide instances where the Pre-Trial Chamber purportedly applied an incorrect admissibility threshold or standard.

Given the Philippines’ inactivity in relation to the relevant crimes, the Majority supported the Pre-Trial Chamber’s decision not to address the issue of the country’s willingness and ability to investigate.

On May 24, 2021, the ICC Office of the Prosecutor requested authorization from Pre-Trial Chamber I to launch an investigation into alleged crimes committed in the Philippines between November 1, 2011, and March 16, 2019, within the context of the Government’s “war on drugs” campaign. The request was made public on June 14, 2021, and on September 15, 2021, the Pre-Trial Chamber granted authorization for the investigation.

On November 18, 2021, the ICC Prosecutor informed the Chamber that the Republic of the Philippines had requested a deferral of the investigation into its situation, in accordance with Article 18(2) of the Rome Statute. Subsequently, on June 24, 2022, the ICC Prosecutor requested the Chamber to resume the investigation concerning the Philippines’ situation, as per Article 18(2).

On January 26, 2023, Pre-Trial Chamber I granted the Prosecutor’s request to resume investigations. After a thorough evaluation of the materials provided by the Philippines, the Pre-Trial Chamber was not convinced that the country was actively conducting relevant investigations that would warrant deferring the Court’s investigations based on the complementarity principle.

The Philippine Government filed a Notice of Appeal against Pre-Trial Chamber I’s authorization on February 3, 2023. However, on March 27, 2023, the Appeals Chamber denied the Philippines’ request for the suspensive effect of the Pre-Trial Chamber’s decision.

The Philippines became a State party to the Rome Statute on November 1, 2011, but subsequently submitted a written notification of withdrawal from the Statute on March 17, 2018. The withdrawal officially took effect on March 17, 2019.

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