The Philippines is no strangerFootnote 1 to international criminal justice. As is well known, a great deal of the fighting in the Pacific theatre of World War II took place on the territory of the Philippines, and so, after regaining its independence, the Philippines was tasked with the prosecution of dozens of low-level perpetrators of war crimes.Footnote 2 Trials of Japanese soldiers began in August 1947 and ran until December 1949.Footnote 3 Furthermore, the International Military Tribunal for the Far East (“the Tokyo IMT”) was established to prosecute Japanese war crimes committed in the Philippines.Footnote 4 The Far Eastern Commission, tasked with the supervision of post-conflict Japan, included representatives from the Philippines,Footnote 5 and the Tokyo IMT bench included the Filipino judge, Delfino Jaranilla, who was himself a survivor of Japanese war crimes.Footnote 6 The Philippines also had a former resistance fighter as their own chief prosecutor (Pedro “Pete” Lopez).Footnote 7 More recently, the prosecution of international crimes before the domestic courts of the Philippines has been discussed in the context of the atrocities perpetrated against the Rohingya.Footnote 8
When it comes to prosecuting international crimes perpetrated by its own nationals before its own courts, like most States, the Philippines has found things to be complicated.Footnote 9 International crimes (i.e. aggression, war crimes, genocide, and crimes against humanity) tend to be perpetrated against large groups of people by individuals acting as part of organizations (e.g. a State’s armed forces or rebel groups). In these contexts, one of the aims of international criminal law is to prosecute and punish those individuals who lead organizations to commit large-scale crimes. Domestic trials may easily be hampered by domestic politics, and this is, after all, one powerful justification for the establishment of international criminal tribunals.Footnote 10
In the Philippines, a pressing issue relates to crimes against humanity which are alleged to have been committed in the context of former president Rodrigo Duterte’s “war on drugs”.Footnote 11 Crimes against humanity are a set of underlying inhumane acts (e.g., murder, torture, enforced disappearance) which are committed in the context of a systematic or widespread attack directed against a civilian population.Footnote 12 The ICC issued an arrest warrant for Duterte on 7 March 2025.Footnote 13 Subsequently, on 12 March 2025, Duterte was surrendered to the Court following his arrest by the Filipino authorities. He has now made his initial appearance before the Court and the confirmation of charges hearing is scheduled to begin on 23 September 2025.Footnote 14 The stage is set, then, for the first ever trial of a former Head of State from Asia at the ICC.Footnote 15 This is also set to be the first trial that focuses on crimes against humanity perpetrated in the context of the “war on drugs”.Footnote 16
However, there is a problem. The Philippines (despite its recent cooperation in the arrest and surrender of Duterte) is no longer a member of the Court and, perhaps crucially, it withdrew its membership before the ICC Prosecutor’s investigation had received formal authorization by the ICC judges (i.e. before the investigation had advanced beyond the “preliminary examination” stage). This raises an important question about the Court’s jurisdiction in the context of former-States parties. It also brings into focus the balance of power between the Prosecutor and the Pre-Trial Chamber when the Prosecutor requests formal authorization of a proprio motu investigation.Footnote 17
In this article, I argue that the Rome Statute provides a specific jurisdictional regime, which I am calling the “legacy jurisdiction” of the ICC, that applies to States that have withdrawn from the treaty (“post-withdrawal States”).Footnote 18 The term “legacy jurisdiction” means the jurisdiction the ICC enjoys over alleged crimes committed on the territory, or by nationals, of post-withdrawal States that were committed during that State’s period of membership (i.e. before withdrawal took legal effect). What I am calling “legacy jurisdiction” arose for discussion in Burundi (the first State to withdraw from the Rome Statute), but it is the Philippines investigation which has more fully revealed the complexities involved in this area of the Rome Statute.Footnote 19 So far, the Court has not explained properly the specific legal basis upon which it may exercise its legacy jurisdiction over post-withdrawal States. In July 2023, the ICC Appeals Chamber had an opportunity to address objections raised by the Philippines in this regard.Footnote 20 Unfortunately, the majority ruled that it was inappropriately seised of the matter (Judges Perrin de Brichambaut and Lordkipanidze dissenting).Footnote 21
The Court’s legacy jurisdiction has not received a great deal of attention from the international criminal justice community.Footnote 22 However, it is important, and not just for defendants from post-withdrawal States, such as Duterte, who may feel that the jurisdiction of the Court is being imposed upon them illegitimately.Footnote 23 It is important for all States parties to the Rome Statute because, as things stand, and given what the Court has said so far, States parties cannot be sure of the parameters of the Court’s temporal jurisdiction, nor of the legal effects of State withdrawal. This is hardly a minor issue in the context of an international criminal law regime characterized by jurisdictional overlaps.Footnote 24 Furthermore, the Court is an international organization and so there are general principles of international law in play, that is, pacta tertiis.Footnote 25 This is because post-withdrawal States find themselves in a similar position to that of non-States parties.Footnote 26 In the typical debates over non-States parties there is (1) the ICC, (2) a State which accepts the Court’s jurisdiction (at all relevant times), and (3) an individual of a non-State party (the target of ICC jurisdiction). An example is the situation in Ukraine where the ICC has issued an arrest warrant for Vladimir Putin, in the context of crimes allegedly committed on Ukrainian territory. But in the Philippines, jurisdictional uncertainty arises on the temporal plane. It involves (1) the ICC, (2) a State which accepted ICC jurisdiction at the relevant time,Footnote 27 and (3) an individual of that same State (which is now a non-State party) who is the target of the ICC jurisdiction. As we will see, the provisions of the Rome Statute provide that the ICC retains jurisdiction over alleged crimes that occurred in the territory of post-withdrawal States (or which were committed by their nationals) in some circumstances.Footnote 28 When exactly this is the case, however, remains unclear. It is worth noting that if the Court’s explanation and justification for its legacy jurisdiction over post-withdrawal States does not pass muster, then the conclusion must be that the Court will be acting ultra vires the Rome Statute.Footnote 29
International law provides rules on treaty withdrawal.Footnote 30 However, these general rules defer to the specific rules on withdrawal which are to be found in the relevant treaty. For our purposes, the problem, as might be expected, is that there are different plausible interpretations of the Rome Statute rules, and the “right” interpretation is not identified easily by the application of the (equally ambiguous) general rules of treaty interpretation.Footnote 31 The general rules reflect a number of concepts which are designed to identify “the meaning” of a treaty text (i.e. the “ordinary meaning” of a particular term, or the “object and purpose” of the treaty).Footnote 32 But the meaning of these concepts, their applicability and effect, is hardly uniform and unchanging.Footnote 33 Neither is it clear what weight is to be attached to each aspect of the interpretive rules (might “context” sometimes outweigh the “ordinary meaning” of terms? How appropriate are teleological or purposive approaches?).Footnote 34 Insofar as this article engages in a detailed evaluation of the Rome Statute, it offers a general critique of “VCLT fundamentalism”.Footnote 35 Moreover, it explores whether solutions to interpretive dilemmas might be found by emphasizing the Court’s “inherent powers”.Footnote 36
Section I critically analyzes the “story so far” with reference to the Philippines investigation with a view to highlighting the main issues. In sum, the Court has advanced two different propositions purporting to justify its ability to exercise jurisdiction over post-withdrawal States. Section II examines the proposition that a preliminary examination that commences before a State’s withdrawal takes legal effect suffices to secure the Court’s legacy jurisdiction. Section III examines the proposition that the only relevant consideration is that, at the time of the crimes, the relevant State was a party to the Rome Statute. I conclude that the preliminary examination “route” is more easily justified on the basis of the terms of the treaty. However, as will be explained, this grants considerable power to the Prosecutor to frustrate a State’s decision to withdraw from the Court. This is because the Prosecutor can open a preliminary examination after a State has deposited its notification of withdrawal.Footnote 37 According to what the Court has said so far, this would secure the Court’s ability to exercise its legacy jurisdiction over the alleged crimes after the relevant State’s withdrawal takes effect. As will be explained, this leaves a great deal of power in the hands of the Prosecutor. Therefore, in section IV, I explore whether the Pre-Trial Chamber could refuse to authorize a Prosecutor’s investigation if it determines that there has been an abuse of process in the pre-trial phase. This might be because there is an undue delay and it is thought that continuing with the investigation would bring the integrity of the Court into disrepute.Footnote 38 The recognition of the Pre-Trial Chamber’s inherent power to stay abusive proceedings may allow the Court to pursue a legitimate aim: to forge a middle path between guarding against self-serving State withdrawals, which are intended to shield suspected perpetrators of international crimes, and deterring abusive prosecutorial strategies that damage the integrity of the Court’s procedures. There is little doubt that this would be very controversial.Footnote 39 But it is a necessary corollary of what the Court has said so far about the effects of commencing a preliminary examination vis-à-vis the exercise of the Court’s jurisdiction post-State withdrawal. It is also the case that recognizing that the Pre-Trial Chamber has this power reduces the likelihood that it would need to use it (because the Prosecutor would avoid controversial prosecutorial practices). Section V makes some concluding remarks.
I. The Philippines’ withdrawal from the ICC: the story so farFootnote 40
Between 1 November 2011 and 16 March 2019, the Philippines was a State party to the Rome Statute. During this period, there were reports of extrajudicial killings and disappearances of thousands of people who were identified by security forces as drug users and drug dealers. These crimes were allegedly carried out by the Philippine National Police, the Philippine Drug Enforcement Agency, and associated vigilante groups.Footnote 41 According to human rights organizations, there may have been as many as 30,000 victims.Footnote 42 This was not spontaneous violence. The then-president of the Philippines, Rodrigo Duterte, incited attacks against drug dealers and drug users as part of his “war on drugs” policy. During his presidential election campaign, he said: “[w]hen I become president, I’ll order the police and military to find these people and kill them”.Footnote 43 Later, he compared his anti-drugs policy with Nazism: “Hitler massacred three million Jews … There are three million drug addicts … I’d be happy to slaughter them”.Footnote 44
On 8 February 2018, the then-ICC Prosecutor, Fatou Bensouda, announced the opening of a preliminary examination into the situation in the Philippines.Footnote 45 A preliminary examination is an assessment of the information received by the Prosecutor about a situation of concern against the requirements of Article 53(1)(a)–(c) Rome Statute. After evaluating the information, Article 53(1) of the treaty requires the Prosecutor to “initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute”.Footnote 46 In relation to the extrajudicial killings in the Philippines, Bensouda said:
thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.Footnote 47
Bensouda’s concern was that there was a reasonable basis to believe that killings that resulted from the Philippine government’s “war on drugs” campaign rose to the level of crimes against humanity (murder).Footnote 48 In response to the announcement, Duterte declared that the Philippines would withdraw from the Rome Statute.Footnote 49
As mentioned, international law provides general rules on treaty withdrawal.Footnote 50 Most pertinent to the current analysis is the fact that Article 54(1) VCLT defers to the relevant treaty in question when it provides that “the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty”. Further, Article 70 VCLT, on the consequences of treaty withdrawal, also defers to the relevant treaty when it says:
Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.Footnote 51
Looking at the Rome Statute, then, Article 127 does not prohibit State withdrawal during an ongoing preliminary examination.Footnote 52 Article 127(1) simply requires written notification of withdrawal to be deposited with the United Nations Secretary-General.Footnote 53 Further, it stipulates that “withdrawal shall take effect one year after the date of receipt of the notification”.Footnote 54 The Philippines deposited written notification on 17 March 2018, and as such, its withdrawal from the Rome Statute system took effect on 17 March 2019.
Alongside Article 127(1), subsection (2) makes provision for the effect of State withdrawal on the Court’s ongoing activities. It is a key provision insofar as it is intended to regulate the Court’s jurisdiction over post-withdrawal States. It is therefore worth quoting in full:
A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. 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.Footnote 55
In section II, I grapple with the interpretive issues involved, and especially the question of whether a preliminary examination counts as a “criminal investigation” (unlikely) or a “matter” which was “already under consideration by the Court” (more likely). Suffice it to say for now that news of the Philippines’ imminent withdrawal might have prompted the Prosecutor to complete the preliminary assessment quickly and to decide whether to request authorization to open an investigation from Pre-Trial Chambers.Footnote 56 After all, this was what had happened in the earlier Burundi situation.Footnote 57 Burundi was the first State to withdraw from the treaty,Footnote 58 but in Burundi the Prosecutor made sure that her office received authorization to open an investigation from Pre-Trial Chamber III before Burundi’s withdrawal took legal effect (by a few days). Insofar as there was a clear rush to meet the deadline, one authoritative article-by-article commentary on the Rome Statute speculates that this arose “out of an abundance of caution”.Footnote 59 That is one way of putting it. What seems clear is that, at that time,Footnote 60 there was considerable uncertainty about the nature and scope of the Court’s legacy jurisdiction. In other words, the Prosecutor was not sure that the mere commencement of a preliminary examination ensured the Court could exercise its legacy jurisdiction in the Burundi situation.
Interestingly, in the Philippines, there was no rush to meet the deadline. The situation remained at the preliminary examination stage for a number of years beyond the Philippines’ withdrawal. Eventually, on 24 May 2021, the Prosecutor approached Pre-Trial Chamber I with a request for authorization to open a formal investigation into the Philippines.Footnote 61 This was over two years after the Philippines’ withdrawal from the treaty had taken legal effect and it represents the first time that the Prosecutor had requested authorization to open a proprio motu investigation into a post-withdrawal State.Footnote 62
Was this procrastination on the Prosecutor’s part? Was it managerial priority setting?Footnote 63 Or, perhaps, what Pre-Trial Chamber III said in Burundi assuaged the Prosecutor’s concerns in relation to the Court’s exercise of its legacy jurisdiction. This is plausible insofar as the Prosecutor in the Philippines explained this rather novel state of affairs by reference to the Burundi Article 15 Decision:
While the Philippines’ withdrawal from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 March 2019.Footnote 64
Then, at paragraph 81, the Prosecutor said:
In the Burundi situation, Pre-Trial Chamber III held that a State Party’s withdrawal from the Rome Statute does not affect the Court’s exercise of jurisdiction over crimes committed prior to the effective date of the withdrawal. … The Court’s exercise of such jurisdiction, moreover, is not subject to any time limit, particularly since the preliminary examination here commenced prior to the Philippines’ withdrawal.Footnote 65
In sections II and III, I will disentangle the two different propositions made in this paragraph. Suffice it to say for now, that on 15 September 2021, Pre-Trial Chamber I simply agreed with the Prosecutor and authorized the investigation into the Philippines.Footnote 66 It said:
the Chamber notes that alleged crimes identified in the [Prosecutor’s] Article 15(3) Request are limited to those during the period when the Philippines was a State Party to the Statute and was bound by its provisions.Footnote 67
In other words, the Philippines’ withdrawal had a prospective effect. Any alleged crimes that were committed after the withdrawal took legal effect would fall outside the Court’s jurisdiction rationae temporis. But in relation to the exercise of its legacy jurisdiction, the Chamber simply reiterated what the Prosecutor had said (recalling the pronouncements made by Pre-Trial Chamber III in Burundi) before adding a reference to the VCLT:
The Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 March 2019. This is in line with the law of treaties, which provides that withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination.Footnote 68
In summary, then, the Court’s jurisprudence to date offers two different propositions for the exercise of its legacy jurisdiction. The first proposition is that the Court can exercise that jurisdiction because a preliminary examination had commenced before the State’s withdrawal took legal effect (i.e. while it was still a party to the Rome Statute). The second proposition is that all that matters is that the relevant State was a party to the treaty at the time of the alleged crimes. According to this proposition, nothing more is needed for the exercise of the Court’s legacy jurisdiction. It is regrettable that the Court has not offered very much in the way of reasoning and explanation. In some ways, these propositions are in tension. If all that matters is that the Philippines was a State party at the time that the alleged crimes took place, then why refer to the commencement of a preliminary examination at all? Furthermore, the implications of these propositions, for States parties, and for the Court’s procedures in relation to proprio motu investigations, inter alia, have also not been examined.
Perhaps understandably, the Philippines itself appears to have been uncertain of its legal position. On 10 November 2021, not long after Pre-Trial Chamber I authorized the investigation (and two-and-a-half years after the Philippines had withdrawn from the treaty), the Prosecutor was notified of a deferral request made by the Philippines.Footnote 69 The Prosecutor agreed to the suspension of the investigation. What is interesting is that the Philippines felt compelled to request a deferral of the investigation so many years after it had left the Rome Statute. It is possible that it may have been attempting genuinely to stave off the Court’s attention by cooperating honestly and directly with the admissibility procedures, all the while reserving its major objections on temporal jurisdiction.Footnote 70 However, subsequent events cast doubt on this view of things.
The new Prosecutor, Karim Khan, dissatisfied with the progress made at the domestic level, eventually decided to apply to Pre-Trial Chamber I for authorization to recommence the investigation on 24 June 2022.Footnote 71 At this stage, the Philippines was invited to submit its “Observations” in respect of the Prosecutor’s decision to restart the investigation. The Philippines did so on 8 September 2022. What is remarkable is that the Philippines’ Observations do not make a single reference to the Court’s temporal jurisdiction.Footnote 72 There is no objection or complaint on this point. Subsequently, the Prosecutor was granted authorization to recommence the investigation on 26 January 2023 (“the Impugned Decision”).Footnote 73 This decision also hardly mentions the issue of the Court’s temporal jurisdiction.Footnote 74 As such, almost four years after the Philippines withdrew from the Rome Statute, no challenge to the Court’s exercise of its legacy jurisdiction had been made.
Finally, on 13 March 2023, the Philippines submitted an appeal of the Impugned Decision which authorized the restart of the investigation. The Appeal Brief states:
Whilst the Philippine Government is … apprised of the Article 15 Decision [15 September 2021], such proceedings were conducted entirely in the absence of any input or intervention from the Government. This is the first opportunity that the Philippine Government has to address the consequences of its withdrawal from the Rome Statute and the residual scope of the Court’s jurisdiction, or lack thereof.Footnote 75
The Appeal Brief asserts that the Court acted “outside its statutory framework” and it further characterizes the Court’s conduct as an attempt to “impose” obligations on the Philippines.Footnote 76 The Philippines argued that this was:
despite the fact that the Philippine Government has openly recognized its responsibility to investigate and prosecute crimes which occurred in connection to the anti-illegal drugs campaign and continued to willingly engage with the Court following its withdrawal which took effect on 17 March 2019.Footnote 77
It is time to examine the two propositions that the Court has advanced in favour of its authority to exercise its legacy jurisdiction. I have chosen to deal with the “preliminary examination route” in section II and the “time of the crimes route” in section III.
II. The preliminary examination route
The Court has said it can exercise its legacy jurisdiction on the basis that a preliminary examination had commenced during the State’s period of membership. In doing so, it recalled the general rules of international law on the termination of treaties.Footnote 78 As mentioned above, in relation to the specific matters at hand, the Rome Statute provides for State withdrawal in Article 127. Pursuant to Article 127(2) withdrawing States have continuing obligations post-withdrawal in relation to “criminal investigations and proceedings … which were commenced prior to the date on which the withdrawal became effective” and/or “any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective”.Footnote 79 Therefore, the first question in relation to the preliminary examination route is whether the “commencement” of a preliminary examination “counts” as “a criminal investigation or proceedings” which had “commenced” and in relation to which the Philippines had a duty to cooperate for the purposes of Article 127(2). This is unlikely. The preliminary examination phase does not engage the cooperation provisions in Part 9 of the Rome Statute.Footnote 80 Thus, the question must be: does a preliminary examination count as “any matter” which was “under consideration” by “the Court” before the withdrawal became effective?
A. The nature of preliminary examinations
The Philippines in its Appeal Brief doubted that the commencement of a preliminary examination could secure the exercise of the Court’s legacy jurisdiction. It pointed to the fact that in the Philippines the preliminary examination was in its early stages:
at the time that its withdrawal took effect in March 2019, the Prosecution’s preliminary examination of the situation was still declared to be at Phase 2. Notably, it is at this phase that the Prosecution is considering “whether the preconditions to the exercise of jurisdiction under article 12 are satisfied.” As such, by March 2019, the Prosecution had not yet made a final determination as whether the Court even had jurisdiction over the Philippine Situation [sic].Footnote 81
For the Philippines, then, the very fact that the Office of the Prosecutor (OTP) had not made a final determination on jurisdiction was evidence that the Court had not yet exercised its jurisdiction. This meant that a preliminary examination could not count as a “matter” which was “under consideration” by the Court for the purposes of Article 127(2).
Here, the reference to the different phases of a preliminary examination gives rise to the possibility that different preliminary examinations should be treated differently for the purposes of the Court’s legacy jurisdiction. A preliminary examination in the early stages, for example, may not count as a “matter” in the Article 127(2) sense, and would therefore not be enough to ensure the Court could exercise its legacy jurisdiction. But a preliminary examination that was more advanced, and especially, one that was beyond the jurisdictional assessment phase, might be sufficient.Footnote 82 Could a rule like this be applied by the Pre-Trial Chamber at the time when the Prosecutor requests authorization to commence an investigation proprio motu? If so, it would deter the Prosecutor from opening a preliminary examination too late in the day (i.e. days or weeks before the withdrawal takes legal effect) because there may not be enough time to advance the examination beyond the jurisdictional assessment phase. But when exactly a Prosecutor’s examination was advanced enough would be hard to say in some respects. Thus, it may be preferable to draw a bright line: either preliminary examinations that commence before the State’s withdrawal suffice for the exercise of the Court’s legacy jurisdiction or they do not.
Another, slightly different, version of the objection based on the nature of preliminary examinations was articulated by the Appeals Chamber minority. They did not think that a preliminary examination was a “matter … under consideration by the Court” for the purposes of Article 127(2) owing to “the informal nature of the preliminary examinations, which do not carry sufficient weight for engaging the Court’s jurisdiction”.Footnote 83 But on what basis do preliminary examinations lack “formality” or “weight”? To be sure, they are “a new species of proceedings” and the importance of these proceedings was, perhaps, not wholly contemplated or appreciated by the drafters of the treaty.Footnote 84 It should be conceded that they are not “full” criminal investigations, because, as mentioned, they do not trigger the cooperation obligations for States that are found in Part 9 Rome Statute.
But announcing the commencement of a preliminary examination is immensely stigmatizing for the relevant State.Footnote 85 Preliminary examinations have been said to add to the “instrumental expressivism” of international criminal justice,Footnote 86 and, according to Stahn, they are “one of the most important centres of activity of the Court”.Footnote 87 Gray and Wharton also point out that opening a preliminary examination can have consequences beyond the possible initiation of an investigation by the ICC, such as catalyzing domestic proceedings or domestic law reform.Footnote 88
Even so, some are unconvinced. For example, commenting on whether preliminary examinations count for the purposes of Article 127(2), Dov Jacobs has drawn attention to the banality of a preliminary examination. For Jacobs, a preliminary examination could involve an investigator from the Prosecutor’s office “sitting in front of his computer in The Hague downloading [Human Rights Watch] and Amnesty International reports”.Footnote 89 Similarly, the Duterte Defence team has argued that preliminary examinations are mere internal processes:
This internal process may commence with an OTP staff member simply reading an NGO report on a particular ICC Situation and taking no further action … The fact that the OTP may, in certain circumstances and in the context of such preliminary examinations, take more formal actions does not change the practical reality that even the most mundane acts – such as analysing open-source information – constitutes a “preliminary examination”.Footnote 90
The thrust of this point seems to be that because a preliminary examination sometimes involves work that is relatively mundane or bureaucratic, a preliminary examination could not possibly trump the sovereign decision of a State to withdraw from the Rome Statute. The point, at first, appears to be a forceful one because it pits sovereignty (and all its associated connotations of legitimacy) against “routine office work”. Upon further examination, however, it is easily countered. The banality of the working methods should not be confused with the question of the legal significance of that practice. It is simply a fact that a great deal of modern legal practice, indeed, modern life, could be described as “banal”, “mundane”, “routine”, or even “bureaucratic”.Footnote 91 It may be noted also, en passant, that modernity and its banal bureaucracy facilitated the atrocities that caused States to develop the international criminal law regime in the first place.Footnote 92 We do not have to agree wholeheartedly with Anne-Marie Slaughter’s network governance theory of world order to understand that it is through global bureaucracies that States, and international organizations, participate in the international society.Footnote 93 In law, what matters, is not the nature of the practice, but its legal significance. The fact that a State’s withdrawal was provoked by the opening of a preliminary examination is very good evidence that a preliminary examination is hugely significant in legal terms.
Perhaps, the interpretive impasse may be solved by reference to the general rules of treaty interpretation? These require the ordinary meaning of terms to be looked at in their context and in light of their object and purpose.Footnote 94 But what is the ordinary meaning of the phrase “any matter” in the context of Article 127(2)? The Spanish version of the Statute uses “cuestiones” and the French version of the Statute uses “des affairs”. In the context of their respective languages, and in the context of ongoing post-withdrawal obligations, these phrases could encompass a broad concept. Turning to the object and purpose of the treaty, it might be difficult to identify the object and purpose of the Rome Statute, in the sense of the only, or most important purpose. Criminal law pursues several different aims and functions.Footnote 95 But the Rome Statute Preamble “affirms” that international crimes “must not go unpunished” and that States parties are “determined to put an end to impunity”.Footnote 96 That purpose seems to be more easily frustrated by the view that preliminary examinations lack any legal authority in the context of State withdrawals because they are not “matters” under consideration by the Court. It is possible to disagree, but a broader interpretation which includes preliminary examinations is plausible in the sense that it is not prohibited by the terms of the treaty.Footnote 97
A broader interpretation of “any matter” which includes preliminary examinations gives rise to two connected issues, each linked to the “one-year-rule” found in Article 127(1). The first is about the purpose of the one-year rule in relation to ICC preliminary examinations. The idea that a preliminary examination ought to be considered a “matter” under Article 127(2) may be undermined by the view that the entire point of Article 127(1) (which mentions the “one-year-rule”) is to put pressure on the Prosecutor to either request authorization to open an investigation from the Pre-Trial Chamber or to drop the issue altogether. The dissenting judges in the Appeals Chamber put it as follows:
We are of the view that one year is sufficient for the Prosecutor to conduct his preliminary examination and request a pre-trial chamber to authorize the commencement of the investigation, and for the pre-trial chamber to rule upon such a request. 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.Footnote 98
But what if a year is not sufficient? Preliminary examinations involve “a large degree of diplomacy”.Footnote 99 It may not be clear at the time of opening a preliminary examination how long exactly the assessment will take. The Prosecutor will not be in control of every eventuality and there may be relevant stakeholders that “drag their feet”. It is also the case that a Pre-Trial Chamber may decide to hold a hearing, and to request information from victims’ representatives.Footnote 100 It is not desirable that the assessment should be a race against time when the entire point of the State’s withdrawal is to shield possible perpetrators of international crimes from the Court’s scrutiny.
But there is also another problem. If it is the case that preliminary examinations are “matters” for the purposes of Article 127(2), and it is the case that a preliminary examination may take longer than a year (i.e. the assessment might continue beyond the State’s withdrawal), then an objection may be raised about the potential abuse of the Court’s procedures. This is because a Prosecutor could open a preliminary examination in response to a State’s withdrawal notification, with a view to requesting authorization for a proprio motu investigation sometime later (maybe even years later). In this sense, the Prosecutor would wield considerable power in defining, at least, some of the effects of a State’s withdrawal. Section IV explores whether one way to guard against the risk of prosecutorial abuses of power would be to recognize that criminal courts (as well as their civil counterparts) enjoy an inherent power to stay proceedings when to continue would constitute an abuse of process.Footnote 101
B. “The court” excludes the OTP
A different objection to the preliminary examination route to the exercise of the Court’s legacy jurisdiction has been advanced by Kevin Jon Heller. Rather than focus on the meaning of “any matter” in Article 127(2) and on how that relates to the nature of preliminary examinations, Heller thinks that preliminary examinations should be excluded from Article 127(2) on the basis that the Rome Statute includes two different understandings of “the Court”. For Heller, it should not be assumed that the phrase “the Court” in Article 127(2) includes the OTP. He explains:
There is no question that “the Court” sometimes refers to “the entire ICC”, such as when the Rome Statute is referring generically to the ICC’s location or international legal personality. Indeed, Article 34 says that “the Court” is composed of the Presidency, the judiciary, the OTP, and the Registry. But the Rome Statute also uses “the Court” in a more restrictive fashion – to refer specifically to the judiciary, excluding the OTP.Footnote 102
Heller is right but the question, then, is what meaning does it carry here, in Article 127(2) and in the context of State withdrawal? A broad reading would include the OTP, Registry, and so on and would result in the inclusion of a preliminary examination as a “matter” before “the Court” for the purposes of Article 127(2). A more restrictive reading would mean that “the Court” in Article 127(2) only refers to the judiciary and not the OTP. Heller says that the more restrictive reading seems like the much “stronger position”.Footnote 103 He cites a long list of examples where “the Court” is used in its more restrictive meaning which excludes the OTP, for example, in the area of admissibility, Articles 19(3), 19(7), and 19(10). Writing in relation to the Burundi withdrawal,Footnote 104 Heller said:
if a matter must be “under consideration by” the judiciary for Article 127(2) to apply, then the OTP’s failure to open an investigation into the situation means that the Court (writ large) no longer has jurisdiction over any crimes committed in Burundi – not even over those committed prior to the date Burundi’s withdrawal became effective.Footnote 105
In thinking that the Prosecutor had not received authorization from Pre-Trial Chamber III to open an investigation before the withdrawal took effect, Heller’s position is clear: the ICC would no longer have any jurisdiction in relation to any crimes committed in Burundi.Footnote 106
The Court might meet this objection by arguing that Article 127(2) is about jurisdiction – the Court’s legacy jurisdiction – and not about admissibility. The Rome Statute distinguishes between these two concepts, as Schabas explains:
Jurisdiction refers to the legal parameters of the Court’s operations, in terms of subject matter (jurisdiction ratione materiae), time (jurisdiction ratione temporis), space (jurisdiction ratione loci) as well as over individuals (jurisdiction ratione personae). The question of admissibility arises at a subsequent stage, and seeks to establish whether matters over which the Court properly has jurisdiction should be litigated before it.Footnote 107
Thus, the meaning of “the Court” in the provisions that Heller cites on admissibility and the meaning in Article 127(2) may be different.Footnote 108 The Court could emphasize that a broader reading of “the Court” in Article 127(2) is justified on the basis that Article 127(2) is about withdrawal from the entire Rome Statute system, that is, the context of State withdrawal should be given the most weight in interpretating the meaning of the provision. Alternatively, it may be thought that the best interpretation of Article 127(2) is that it requires its second and third sentences to be considered separately, that is, one thing is cooperation with the Court in relation to “criminal investigations or proceedings” which have “commenced” (excluding preliminary examinations) and another is “a matter” that is “under consideration by the Court” (includes preliminary examinations). Again, the Court could say that if the object and purpose of the Rome Statute is to prevent impunity, it does not make sense to favour a reading of the treaty that dilutes the weight and consequence of preliminary examinations.
Based on what has been said in Burundi and the Philippines, the Court appears determined to interpret preliminary examinations as a “matter” for the purposes of Article 127(2). It cannot be doubted that preliminary examinations have emerged as an important tool for the Court to monitor and influence State conduct in relation to atrocity crimes. There is a strong community interest in ensuring that they are given their due weight. However, there can be no doubt that this reading of the treaty leaves considerable power in the hands of the Prosecutor. Thus, if the Court wants to continue along this path, some supervisory role must be found for the Pre-Trial Chamber that addresses specifically the potential for abuse of the Court’s processes. A middle path must be found which shields against self-serving State withdrawals but that also guards against potential abuses of the Court’s procedures.
III. The time of the crime route
A separate justification for the exercise of the Court’s legacy jurisdiction (although mentioned in the same paragraph) is that the alleged crimes occurred while the Philippines was a State party:
a State Party’s withdrawal from the Rome Statute does not affect the Court’s exercise of jurisdiction over crimes committed prior to the effective date of the withdrawal. … The Court’s exercise of such jurisdiction is not subject to any time limit.Footnote 109
This proposition is far more ambitious because the Court’s authority to exercise its legacy jurisdiction would not depend on the Prosecution doing anything pre-withdrawal, that is, commencing a preliminary examination, or requesting authorization to open an investigation. Instead, the legacy jurisdiction question would be decided by the simple fact that at the time of the alleged crimes, the relevant State was a State party.
It is regrettable that the Court has not explained or justified why this should be the case. This route to legacy jurisdiction appears to be founded on the argument that criminal jurisdiction, once it is created, cannot be simply “wished away”. There is intuitive appeal to that proposition. It is also true that Rome Statute crimes are not subject to any statute of limitations. But does this really mean that the Court can exercise its jurisdiction indefinitely? The Philippines, in its Appeal Brief, argued that this view of things would mean that the ICC is, in essence, a “perpetual” court:
it is the Pre-Trial Chamber’s position, as reflected in the Impugned Decision and Article 15 Decision, that the Court may indefinitely exercise its jurisdiction in relation to alleged crimes committed at the time the State was party and that the effective withdrawal of the State cannot alter this position.Footnote 110
Let us consider a hypothetical example. Imagine that crimes are alleged to have taken place in a State party, but that the Prosecutor does not do anything about these allegations, not even open a preliminary examination. Further, imagine that the State withdraws from the treaty and a year later that withdrawal takes legal effect. The Prosecutor still has not done anything, apart from receive and file information from stakeholders.Footnote 111 Consider, then, that 10 years later, a change in the government of the relevant State, and a change in the person of the Prosecutor, results in the alleged crimes attracting renewed attention and in an opportunity for the prosecution of the relevant individuals. On the basis that the alleged crimes took place while the State was a party to the Statute, would the new Prosecutor be able to (i) open a preliminary examination, and/or (ii) request authorization from the Pre-Trial Chamber to open a formal investigation? If we take what the Court has said at face value, the answer appears to be “yes”. However, this is difficult to accept given the preconditions for the exercise of the Court’s jurisdiction under Article 12 Rome Statute. It looks like the Court has confused the existence of jurisdiction (over subject-matter, persons, and time)Footnote 112 and the exercise of its jurisdiction. Thus, unlike the preliminary examination route discussed earlier, the “time of the crime” route to the exercise of the Court’s legacy jurisdiction is far harder to justify on the basis of the treaty text.
A. Existing jurisdiction and exercising jurisdiction: the role of article 12
An important objection to the idea that the Court has a perpetual jurisdiction (i.e. all that matters is that the State was a member at the time of the alleged crimes) relates to the difference between the existence of, and the authority to exercise, jurisdiction. The argument arose in the Philippines’ Appeals Brief,Footnote 113 and it was endorsed by the Appeal Chamber minority who argued:
Based on a holistic reading of the relevant provisions … 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.Footnote 114
This argument is possible because of the peculiar way that the Rome Statute regulates the exercise of jurisdiction pursuant to Article 12 of the treaty. This provision purports to identify certain preconditions to the exercise of the Court’s jurisdiction. In relation to proprio motu investigations, Article 12(2) says:
the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.Footnote 115
The key question is when does the State have to be a party to the Statute? Is it at the time that the Court decides to trigger its jurisdiction by opening an investigation? Or at the time when the Court is considering doing that (as discussed in the previous section in relation to preliminary examinations)? Or is it sufficient that the State consents to the jurisdiction of the Court at the time of the crimes? Dov Jacobs has argued that the “logical” time when the issue falls to be determined is at the time of the exercise of jurisdiction:
Article 12 does not actually say that the Court has jurisdiction over crimes committed on the territory of a State party or by a national of a State party, which is what you would expect from a jurisdictional provision. Article 12 says that the Court can only exercise jurisdiction if the State of nationality or the territorial State is a Party to the Statute. This would logically suggest that the adequate time to determine whether the pre-conditions of Article 12 are met, is when the Court is considering exercising jurisdiction, not when the crimes were actually allegedly committed.Footnote 116
In favour of this interpretation is the fact that the provision says: “one or more of the following States are Parties to this Statute” or “have accepted”. If the post-withdrawal State’s consent at the “time of the crime” was meant to be enough to secure the Court’s legacy jurisdiction, the provision should say “were Parties” to the Statute or simply “accepted”. The Spanish version says “son Partes en el presente Estatuto”. Thus, in context, the provision appears to require that the jurisdiction is exercised while the relevant State is a party to the Statute. It is simply difficult to say, on the basis of the treaty text, that all that matters for the exercise of the Court’s legacy jurisdiction is that the State was a party at the time the alleged crimes occurred.Footnote 117 The Court’s exercise of its legacy jurisdiction is subject to time limits. In particular, the one-year period, as mandated by Article 127(1) presents the Prosecutor with a window of opportunity for the exercise of the Court’s jurisdiction. As such, turning back to our hypothetical example above, the new Prosecutor could not proceed on the simple basis that the crimes took place when the relevant State was a party. The treaty prevents the Prosecutor from being able to do anything about that kind of situation post-State withdrawal unless its activities in relation to the alleged crimes can be brought within Article 127(2).Footnote 118 This suggests that, at the very least, a preliminary examination ought to have commenced prior to the State’s withdrawal.
IV. The implications of the preliminary examination route: the role of the Pre-Trial Chamber
It is, of course, open for the Court to agree with the dissenting judges in the Appeals Chamber in the Philippines (and Duterte’s Defence Team) and to rule that authorization must be received from the Pre-Trial Chamber prior to the State’s withdrawal taking effect.Footnote 119 This, in essence, would constitute a correction of what the Pre-Trial Chambers have said so far in the Burundi and Philippines situations. Part of this change of direction would be to distinguish between these situations. The Burundi investigation could continue (because authorization was received by the Prosecutor from Chambers days before the withdrawal took effect). But the Philippines investigation might need to be terminated. The Prosecutor received authorization years after the Philippines’ withdrawal took legal effect and so the Court would be ultra vires the Rome Statute. In some ways, this is the simplest way to proceed and, as explained, it finds a secure basis in the treaty text. However, this is not the only option. The treaty provisions are ambiguous, and the Court could instead clarify what it has said so far, emphasizing that it is the preliminary examination route which counts in respect of the exercise of its legacy jurisdiction pursuant to Article 127(2). At the same time, the Court could disavow the view that the State’s membership of the Court at the “time of the crimes” is sufficient to secure the exercise of its legacy jurisdiction. Article 12 requires that the relevant State has to be a State party at the time when the Court exercises its jurisdiction in relation to the relevant matters.
In arguing that the preliminary examination route is open to the Court, the preceding section has also identified some potentially problematic consequences of this reading of the treaty, specifically, in terms of the risk of abusive prosecutorial strategies which may bring the procedures of the Court into disrepute. The danger emerges because the commencement of a preliminary examination is entirely in the gift of the OTP. There is no judicial oversight of the decision to initiate a preliminary examination. In fact, the Prosecutor need not even inform the relevant State that a preliminary examination has commenced (though in practice usually an announcement is made). Thus, there is a possibility, that a State may exercise its right to withdraw from the treaty, and follow all the relevant rules, only to find that the Prosecutor initiates a preliminary examination in response (during the one-year withdrawal period) which binds it to the Court post-withdrawal by bringing the matter within Article 127(2). An example to illustrate may help.
Let us imagine that a State announces its withdrawal from the treaty and that pursuant to Article 127(1) its withdrawal is to take legal effect on 1 January 2026. The Prosecutor is not prohibited from opening a preliminary examination after the State has announced their intention to withdraw. If the Prosecutor announces the opening of a preliminary examination on 31 December 2025, does that mean the Court can exercise its legacy jurisdiction over any alleged crimes that took place while the State was a party?Footnote 120 Relatedly, if all that matters is the opening of a preliminary examination before the withdrawal takes legal effect, then does it matter how long the Prosecutor waits before approaching the Chambers with a request for authorization to open a full criminal investigation? In the Philippines, the Prosecutor’s request was submitted over two years after the effective withdrawal date. But if commencing the preliminary examination is all that matters, does that mean the Prosecutor could have waited five years, or 10 years, or 20 years, before requesting authorization to proceed to a formal investigation? Could the Prosecutor have waited as long as they pleased, so long as a preliminary examination had commenced before the end of the one-year withdrawal period set down by Article 127(1)?
These considerations may have played on the mind of the dissenting judges in the Philippines’ appeal, who thought that one of the risks of the preliminary examination route to legacy jurisdiction is that “the Court’s jurisdiction would stretch to an extent that would defy the assurances and guarantees to the States embedded in the Statute”.Footnote 121 Similarly, in its Appeal Brief, the Philippines said that “the Court’s jurisdiction is not perpetual”.Footnote 122 In this final section, I explore whether the Court could steer a middle path between the rights of State parties to withdraw from the treaty and the community interest in avoiding self-serving withdrawals from the Rome Statute system. Could the Pre-Trial Chamber refuse to authorize the Prosecutor’s investigation because it represents an abuse of process? What would be the legal basis for such a determination?
A. The role of the Pre-Trial Chamber under Article 15(4) Rome Statute
The first thing to consider is what Rome Statute law says about the Pre-Trial Chamber’s role in authorizing investigations commenced by the Prosecutor. The kind of supervisory role that I am envisaging for the Pre-Trial Chamber does not find very much support in the text of the treaty or in the Court’s Rules of Procedure and Evidence. Rule 50 stipulates that after a request for authorization is made the Pre-Trial Chamber should “issue its decision, including its reasons, as to whether to authorize” the Prosecutor’s investigation, “in accordance with” Article 15(4) which states:
If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.Footnote 123
Importantly, Article 15(4) does not mandate the Pre-Trial Chamber to undertake a wholesale review of the investigation against the criteria that the Prosecutor uses to determine whether or not to proceed with an investigation under Article 53(1)(a)–(c). Thus, for example, the Pre-Trial Chamber, cannot refuse to authorize an abusive investigation because it thinks that to continue would be against the “interests of justice” (Article 53(1)(c)).Footnote 124 The treaty says that the Pre-Trial Chamber must simply review whether the investigation “appears to fall” within “the jurisdiction of the Court” (Article 15(4)). No doubt, this means all of the Court’s jurisdictional requirements must “appear” to be met, including, in the context of a post-withdrawal State, whether the situation comes within the Court’s legacy jurisdiction (Article 127(2)). But according to what the Court has said so far, the rule is that so long as a preliminary examination commences before a State’s withdrawal takes effect, the matter falls within the legacy jurisdiction of the Court.
But if the Prosecutor were to open a preliminary examination days before a State’s withdrawal from the treaty takes effect, or if the request was made 10 or 15 years after the commencement of a preliminary examination, is it really the case that the Pre-Trial Chamber must simply rubber-stamp the investigation without more? Could it not determine that even though the situation “appears to fall” within the jurisdiction of the Court (as a matter of Article 15(4)), there has been an undue delay, or an obvious rush to frustrate a State’s withdrawal from the Statute, which rises to the level of an abuse of process?
Needless to say, this would be controversial. Recall that in the Afghanistan situation, the Pre-Trial Chamber refused to authorize the Prosecutor’s investigation on the basis that it would not be in the “interests of justice” to continue with the investigation. The decision was heavily criticizedFootnote 125 and, ultimately, it was overturned by the Appeals Chamber which confirmed that the Pre-Trial Chamber in proprio motu investigations may not review the Prosecutor’s determinations under Article 53(1)–(c).
Even so, in the Afghanistan situation, the Appeals Chamber only decided the point that was argued before it (i.e. it ruled on what the Pre-Trial Chamber had done in relation to Article 15(4) and the “interests of justice” test). The Appeals Chamber was not asked to determine the totality of the powers of the Pre-Trial Chamber in reviewing a Prosecutor’s request for authorization. It was not asked to determine whether the Pre-Trial Chamber may exercise its inherent powers to stay proceedings if there is evidence of an abuse of process. Precious time and resources would be saved if the Pre-Trial Chamber could refuse to authorize an abusive preliminary examination into a post-withdrawal State which, all things considered, appears to fall within the legacy jurisdiction of the Court. But this leads to two questions: what is the legal basis of this inherent power? Second, when should the power be exercised?
B. The inherent power of international courts
International courts and tribunals may exercise powers “not expressly provided for in the international instruments regulating their jurisdiction”.Footnote 126 The legal basis of the inherent powers of international courts, however, is still contested. Gaeta argues that there are, in effect, three possible answers. Either the powers are derived from the general principles of international law, the implied powers doctrine, or they derive from the judicial nature of the relevant bodies.Footnote 127 There is no space here to undertake a full review of the debate on the nature and source of the inherent powers of courts,Footnote 128 but the best view, according to Gaeta, is that:
The general application by courts and tribunals of the notion of inherent powers may warrant the conclusion that a general principle has gradually taken shape in international law, whereby international judicial bodies may exercise those powers that prove necessary for guaranteeing the sound administration of justice and protecting their judicial nature.Footnote 129
After reviewing the practice of different international courts and tribunals, and the doctrinal writings, Brown concludes that the best justification for a court’s inherent powers is the functional justification: international courts and tribunals, if they are to function as courts at all, must enjoy these powers by necessity.Footnote 130 Similarly, and in the context of criminal tribunals, Sadat argues that once States have created an international criminal jurisdiction, it is “more than the sum of their parts”.Footnote 131 In other words, the newly established court enjoys certain unwritten powers simply by virtue of the fact that State’s consented to the creation of a court.
This functional justification has the benefit of cohering with what international courts themselves have said about these powers. For example, in Northern Cameroons, Sir Gerald Fitzmaurice (in a Separate Opinion) drew a distinction between the jurisdiction of the International Court of Justice (ICJ) to hear the merits of a dispute and its “preliminary” or “incidental” jurisdiction which “it can exercise even in advance of its basic jurisdiction as to the ultimate merits”.Footnote 132 Fitzmaurice continued:
[a]lthough much … of this incidental jurisdiction is specifically provided for in the Court’s Statute, or in Rules of Court, which the Statute empowers the Court to make, it is really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court – or any court of law – being able to function at all.
Fitzmaurice’s theme was taken up again in Nuclear Tests, where the ICJ held that it “possesses an inherent jurisdiction enabling it to take such action as may be required … to ensure the observance of the ‘inherent limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its judicial character’”.Footnote 133
In the context of international criminal tribunals, inherent powers played a large role in the administration of justice at the International Criminal Tribunal for the Former Yugoslavia (ICTY).Footnote 134 This is because many of the rules of procedure had to be worked out “on the hoof”. The ICC is not in the same position as the ad-hoc tribunals. States, wary of a court that could supervise the conduct of their own nationals, purported to set down the rules of jurisdiction and procedure and to constrain the discretion of the court’s judiciary. But even so, not everything can be set down in stone beforehand. Those States that establish international courts and tribunals are unable to foresee every eventuality and there will always be a need for courts to regulate and protect the integrity of the judicial proceedings. As Liang put it, commenting on the ICC:
because there will always be lacunae in jurisdiction and the incontrovertible need for courts to safeguard their judicial function, the concept of inherent jurisdiction and inherent powers will remain indispensable to the judicial arsenal.Footnote 135
But the recognition that an international court may draw upon inherent powers necessary to carry out its judicial function leads to the following questions: what is the extent of an international court’s inherent powers? What powers does it have? In this respect, a court must have those inherent powers that are necessary to carry out the specific purposes for which it was constituted by States. As Gaeta says, “the unique features of each particular court or tribunal should be taken into account”.Footnote 136 Thus, it is not surprising that different international courts enjoy and assert slightly different inherent powers. The ICC, as a criminal court, must enjoy those inherent powers necessary for the functioning of any criminal court. This includes the power to find that individuals are in contempt of court, the power to compel witness testimony,Footnote 137 as well as the power to stay proceedings for an abuse of process.
C. The abuse of process doctrine
Criminal wrongdoing is a special kind of wrongdoing. It has a public dimension.Footnote 138 The punishment and conviction of individuals by a legitimate authority is a disavowal of that conduct and an opportunity for the relevant community to reaffirm its core values. This communicative theory of criminal punishment has implications for criminal procedure because it extends to recognizing the community interest in protecting the integrity of the criminal process. Andrew Choo puts it this way:
the moral dimension of criminal justice requires … a recognition that the judge in a criminal trial should not be concerned solely with the conviction of the guilty and the acquittal of the innocent … Rather, what the public interest demands is that offenders are brought to conviction in a civilized and publicly acceptable manner. Thus, the public has an interest not only in the conviction of the guilty and the acquittal of the innocent, but also in the moral integrity, or, to put it more simply, the quality, of criminal proceedings.Footnote 139
This public interest, or, perhaps, in the context of international law, community interest, is reflected in the inherent powers that international courts may exercise to prevent the abuse of the court process (see above discussion in section IV.B).Footnote 140 But when should a criminal court exercise this inherent power to stay proceedings?
As the abuse of process doctrine is a creature of the common law systems, it is pertinent and useful to turn to consider what national courts have said about this question. The UK Supreme Court has indicated that there are, in general, two categories of case where an abuse of process ruling may be appropriate. In Maxwell, a case which involved gross pre-trial misconduct on the part of the police, it said these were:
“(i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case”.Footnote 141
This common law doctrine has been adopted by international criminal tribunals. In Barayagwiza, for example, the International Criminal Tribunal for Rwanda (ICTR) appeared to run together the two types of case where an abuse of process ruling may be appropriate:
The abuse of process doctrine may be invoked as a matter of discretion. It is a process by which Judges may decline to exercise the court’s jurisdiction in cases where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity.Footnote 142
It is useful to keep the two categories of case separate. In relation to the first category, evidence may be delayed, or lost, or there may be a case of witness tampering, or perhaps evidence might have been obtained by torture.Footnote 143 In these kinds of scenarios, there is no possibility of conducting a fair trial.Footnote 144 But it is the second category of case that is most interesting for present purposes. In these situations, a fair trial is still technically possible, but there are other reasons that may tip the scales in favour of terminating proceedings. An articulation of the rationale for this second category of case was provided by Lord Griffiths in Horseferry Road Magistrates’ Court, ex p. Bennet:
the judiciary accept a responsibility to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law... The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution.Footnote 145
No doubt there ought to be a high threshold for the application of this doctrine. The protection of the quality of proceedings must always be balanced against the strong public interest in prosecuting those suspected of committing serious criminal offences.Footnote 146 Thus, it may be doubted whether a very late decision to open a preliminary examination (perhaps in response to a State’s withdrawal notice) may be considered the kind of “egregious” wrongdoing that is normally thought to constitute an abuse of process. It would depend on all the facts of the particular case. The decision to open a preliminary examination days or weeks before a State’s withdrawal from the treaty takes legal effect should be scrutinized very carefully.
To summarize, the ICC finds itself in a difficult position. If it wants to prosecute Duterte, and other future cases which may arise under similar circumstances, it will need to justify how exactly it may exercise its jurisdiction over the alleged crimes when the relevant State withdrew from the treaty before the formal criminal investigation commenced. One plausible argument, relevant to situations like the Philippines, is that the Prosecutor commenced a preliminary examination before the State’s withdrawal took legal effect. This view of things allows the investigation to continue, but it grants a great deal of power to the Prosecutor. It means they could open a preliminary examination in response to a State’s withdrawal notice, in an attempt to secure the exercise of the Court’s legacy jurisdiction over any relevant crimes. In this way, the Prosecutor could frustrate the State’s withdrawal and bind it to the Court. Insofar as the State’s decision to withdraw is a thinly veiled attempt to shield persons from the Court’s scrutiny, this might appear to be the “right” result (in terms of justice for victims and preventing impunity for international crimes). However, it also runs the risk of bringing the Court’s procedures into disrepute, and that, in and of itself, damages the Court’s legitimacy and, consequently, the pursuit of its aims and objectives. As such, I have argued that the recognition that the Prosecutor has more power than at first envisaged by the treaty must go hand-in-hand with a full recognition of the Pre-Trial Chamber’s inherent supervisory powers in proprio motu investigations.
V. Conclusion
States that withdraw in response to the opening of a preliminary examination should not be able to shield alleged perpetrators of international crimes from the scrutiny of the Court too easily. This is not least because, sometimes, the leaders of withdrawing States and the persons accused of committing international crimes are one and the same. In this scenario, I have argued that the treaty may be interpreted in such a way as to mean that the Court’s legacy jurisdiction may be exercised by the simple fact that a preliminary examination had been opened prior to the State’s withdrawal taking legal effect. This permits the Court to exercise its jurisdiction post-State withdrawal pursuant to Article 127(2) because a preliminary examination is “a matter” under the consideration of the Court. It would also permit the Prosecutor to open a preliminary examination with a view to requesting authorization for a proprio motu investigation in response to a State’s withdrawal notice. This may be necessary, for example, when the State withdrawal has arisen in relation to a dynamic situation on the ground and there is a reasonable prospect of cooperation at some point in the very near future. After all, modern armed conflicts stop and re-start, there are periods of intensity and periods of calm, and governments and armed groups undergo reconfigurations.Footnote 147 A margin of flexibility in the commencement of proprio motu investigations in the context of withdrawing States is defensible.
But a Prosecutor’s power ought to be carefully monitored. Like all judges, the judges of the Pre-Trial Chamber have a duty to protect the integrity of the Court’s procedures. They may be asked to authorize investigations in situations where the Prosecutor’s conduct might be considered abusive. The practice of the Court should develop to recognize the Pre-Trial Chamber’s power to block proprio motu investigations that bring the Court’s procedures into disrepute on the basis that proceeding would be an abuse of process.
Even if a Pre-Trial Chamber recognized it could deny the request for authorization on this basis, it would not be an easy decision to make. There would be considerable pressure on the Pre-Trial Chamber judges from victims groups and other stakeholders to allow the prosecution to continue given the grave nature of international crimes. In England and Wales, egregious wrongdoing at the investigative stage is not always regarded as an abuse of process.Footnote 148 It is a matter of judgement, and the Court would need to exercise its discretion in each case. A Pre-Trial Chamber power to deny the Prosecutor’s request might go some way to assuaging the concerns of State parties who, after digesting the implications of Burundi and Philippines, must now realize that the effects of a decision to leave the Court are, at least indirectly, subject to prosecutorial oversight.
The problem dealt with in this article is that there appears to be a unique legal regime that applies to post-withdrawal States that has not been recognized, explained, and justified properly by the Court. As things stand, State parties cannot say with confidence that they are sure of the parameters of the Court’s temporal jurisdiction. That is not desirable in the context of an international criminal law regime that depends on States cooperating with the Court, especially in respect of the allocation of jurisdiction. Depending on the approach taken to treaty construction, it might be that the Court may exercise its jurisdiction in Burundi and the Philippines, because all that matters is that a preliminary examination commenced in each of these situations before the State withdrawals took legal effect. Or it may be that the Court may exercise its jurisdiction in Burundi, but not in the Philippines, because before the withdrawals took legal effect, the Prosecutor had received formal authorization to proceed from the Pre-Trial Chamber in the former but not in the latter. It may be that the Court should not be acting in either case because in each case the Pre-Trial Chamber should have denied the authorization request on the basis of an abuse of process (recall the very late request for authorization in Burundi). Or finally, though least likely, it may be that all that matters is that the crimes took place at a time when the relevant States were parties to the treaty, and withdrawal, which only has a prospective effect, cannot change what has come to pass. It bears repeating that all of this is about uncertainty in the rules of temporal jurisdiction of a criminal court, and that the Court’s legitimacy is eroded to the extent that these rules remain mysterious or unknown. In this respect, the Appeal Chamber’s refusal to deal with these matters in July 2023 is very regrettable. Now that Duterte is in custody, however, we may expect the Court will be presented with another opportunity to determine the principles that apply to the exercise of its legacy jurisdiction when the Prosecutor acts proprio motu.
Acknowledgements
I would like to thank the anonymous reviewers and the following colleagues for their comments on earlier versions of this article: Adrian Hunt, Dino Kritsiosis, Alexander Orakhelashvili, Paul Roberts, and Matt Windsor. All errors remain my own.
Funding statement
None.
Competing interests
None.
Javier S. ESKAURIATZA is Assistant Professor of Criminal Law at the School of Law, University of Nottingham.
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