Today, 18 July 2023, the Appeals Chamber of the International Criminal Court ("ICC" or "Court") delivered, in open Court, its judgment confirming, by majority, ICC Pre-Trial Chamber I's decision granting authorization to the ICC Prosecutor to resume the investigations in relation to the situation in the Republic of the Philippines (the "Philippines").
The Majority, composed of Judge Piotr Hofmański, Judge Luz del Carmen Ibáñez Carranza, Judge Solomy Balungi Bossa dismissed the Philippines' first ground of appeal under which the Philippines argued that the Court cannot exercise its jurisdiction over the Philippines situation because the Philippines withdrew from the Rome Statute. The Majority considered that this issue was not properly raised before the Pre-Trial Chamber and that the Impugned Decision does not constitute a "decision with respect to jurisdiction".
Judge Marc Perrin de Brichambaut, Presiding the Chamber in this appeal, and Judge Gocha Lordkipanidze appended a dissenting opinion where they consider that the Court cannot exercise its jurisdiction with respect to the Philippines situation since the Philippines' withdrawal from the Statute became effective before the Prosecutor requested authorisation to commence his investigation.
The remaining grounds of appeal were only considered by the Majority. The Majority found that the Philippines being the State seeking deferral and asserting that it conducts the relevant investigations or prosecutions bears the burden of proof.
The Majority also found that the Philippines failed to show instances in which the Pre-Trial Chamber allegedly applied the wrong admissibility threshold or standard and that, given its conclusion on the Philippines' inactivity with regard to the relevant crimes, it was correct for the Pre Trial Chamber not to consider the issue of the Philippines' willingness and ability to investigate.
Background: On 24 May 2021, the ICC Office of the Prosecutor requested authorisation from the Pre-Trial Chamber to initiate an investigation into crimes allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the Government of the Philippines' "war on drugs" campaign. On 14 June 2021 the OTP Request was made public. On 15 September 2021, the Pre-Trial Chamber authorised the investigation.
On 18 November 2021, the ICC Prosecutor informed the Chamber that the Republic of the Philippines requested, pursuant to Article 18(2) of the Rome Statute, that the investigation into the Philippines situation be deferred. On 24 June 2022, the ICC Prosecutor requested the Chamber to resume the investigation into the situation in the Philippines pursuant to article 18(2).
On 26 January 2023, ICC Pre-Trial Chamber I granted the Prosecutor's request to resume investigations into the Situation of the Republic of the Philippines. Following a careful analysis of the materials provided by the Philippines, the Pre-Trial Chamber was not satisfied that the Philippines is undertaking relevant investigations that would warrant a deferral of the Court's investigations on the basis of the complementarity principle.
On 3 February 2023, the Philippine Government filed its Notice of Appeal against Pre-Trial Chamber I's authorisation. On 27 March 2023, the Appeals Chamber rejected the request of the Republic of the Philippines for suspensive effect of Pre-Trial Chamber I's decision.
The Philippines, State party to the Rome Statute since 1 November 2011, deposited a written notification of withdrawal from the Statute on 17 March 2018. The Philippines' withdrawal from the Statute took effect on 17 March 2019.
Dissenting opinion of judge Perrin de Brichambaut and judge Lordkipanidze
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